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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: _________

Filing Date: October 15, 2013

Docket No. 33,736

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

AQUILINO LOPEZ,

Defendant-Appellant.

CERTIFICATION FROM THE NEW MEXICO COURT OF APPEALS

Grant L. Foutz, District Judge

Bennett J. Baur, Acting Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM

for Appellant

Gary K. King, Attorney General

Ralph E. Trujillo, Assistant Attorney General

Santa Fe, NM

for Appellee

OPINION

DANIELS, Justice.

{1} Defendant’s motion for rehearing is granted. The opinion filed on August 29, 2013,

is withdrawn and the following opinion, which further clarifies the scope of our holding

regarding the only issue presented to the Court—whether the constitutional right of

confrontation applies at a preliminary examination—is substituted in its place.

{2} Under Article II, Section 14 of the New Mexico Constitution, a defendant may not

be brought to trial for a serious criminal offense unless there first has been a determination
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of probable cause, either by a grand jury or by a judge at a preliminary examination. In this

case we consider whether the full constitutional right of confrontation in criminal

prosecutions applies at a pretrial probable cause determination. We hold that it does not,

because the right of confrontation in Article II, Section 14 of the New Mexico Constitution,

as with the right of confrontation guaranteed by the Sixth Amendment to the United States

Constitution, applies only at a criminal trial where guilt or innocence is determined. We

overrule the contrary precedent of Mascarenas v. State, 1969-NMSC-116, 80 N.M. 537, 458

P.2d 789, to the extent that it held otherwise.

I. BACKGROUND

{3} Defendant Aquilino Lopez was stopped for speeding and arrested for driving with

a suspended license. While performing a search incident to the arrest, the arresting officer

discovered in Defendant’s pocket a clear bag containing a green leafy substance suspected

by the deputy to be marijuana. During an inventory of the contents of Defendant’s car,

officers discovered another bag containing a white powdery substance that they believed to

be cocaine. Defendant was charged with possession of a controlled substance with intent to

distribute, possession of marijuana, and driving with a suspended or revoked license.

{4} At the Rule 6-202 NMRA preliminary examination conducted in magistrate court to

assess probable cause to prosecute, the magistrate court admitted, over Defendant’s

Confrontation Clause objections, a written report of the New Mexico Department of Public

Safety Forensic Laboratories concluding that the white powdery substance was cocaine and

the green leafy substance was marijuana. Although the New Mexico Rules of Evidence

generally govern proceedings in preliminary examinations, pursuant to Rules 11-101 and 11-

1101 NMRA, admission of the laboratory report was permitted by this Court’s Rule 6-

608(A) NMRA, which provides a specific exception to our hearsay rule for admissibility

“[i]n any preliminary hearing” of “a written report of the conduct and results of a laboratory

analysis of a . . . controlled substance.” Rule 6-608(B) further provides that nothing in the

rule “shall limit the right of a party to call witnesses to testify as to the matters covered in

such report, nor affect the admissibility of any evidence other than this report.” The

magistrate court also considered the expert opinions of two police officers that the two

substances were cocaine and marijuana. As a result, the court determined there was probable

cause to believe that Defendant had committed the offenses charged and bound the case over

for trial in the district court.

{5} Defendant entered a special appearance in the district court and filed a motion to

dismiss or, in the alternative, to remand the case to the magistrate court for another

preliminary examination. The motion alleged that the magistrate had violated Defendant’s

confrontation rights under both the Sixth Amendment to the United States Constitution and

Article II, Section 14 of the New Mexico Constitution by admitting the forensic laboratory

report into evidence at the preliminary hearing without an opportunity for the defense to

personally cross-examine the laboratory analyst who prepared the report. The motion argued

that as a result the district court did not have jurisdiction to proceed further in the case. The
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State responded that neither the federal nor state constitution guarantees personal

confrontation at pretrial probable cause hearings and, in the alternative, argued that any error

in admitting the laboratory report would have been harmless, given the opinion testimony

of the officers that the bags in Defendant’s possession contained marijuana and cocaine.

After a hearing, the district court denied Defendant’s motion.

{6} Defendant subsequently entered a plea of guilty to possession with intent to distribute

cocaine, reserving the right to appeal the denial of his motion to dismiss or remand,

consistent with the conditional plea provisions of Rule 5-304(A)(2) NMRA. Defendant

appealed his conviction to the New Mexico Court of Appeals, arguing that the district court

did not acquire jurisdiction to hear the case because admission of the laboratory report

without an opportunity to face and personally question its author was a denial of Defendant’s

right of confrontation and that as a result of that denial he had not been afforded a lawful

preliminary examination. The Court of Appeals certified the appeal directly to this Court,

pursuant to NMSA 1978, Section 34-5-14(C) (1972) and Rule 12-606 NMRA, reciting that

the appeal raises an issue of substantial public interest and presents a significant question of

law under the New Mexico Constitution in light of the apparent conflict between the

holdings in Mascarenas, which applied the Confrontation Clause to pretrial probable cause

hearings, and the analysis in the more recent case of State v. Rivera, 2008-NMSC-056, 144

N.M. 836, 192 P.3d 1213, which concluded that because the Confrontation Clause provides

a trial right it does not apply in pretrial suppression hearings. See id. ¶ 13. We accepted

certification to clarify whether the constitutional right to personal confrontation that is

guaranteed at trial also controls the admissibility of evidence in preliminary examination

probable cause determinations.

II. DISCUSSION

A. Standard of Review

{7} “Questions of admissibility under the Confrontation Clause are questions of law,

which we review de novo.” Id. ¶ 10 (internal quotation marks and citation omitted).

B. The Federal Sixth Amendment Right of Confrontation Is a Trial Right Which

Does Not Apply at Preliminary Probable Cause Determinations

{8} Where the United States Constitution and the New Mexico Constitution provide

overlapping protections, we apply an interstitial mode of analysis, which requires that we

first consider “whether the right being asserted is protected under the federal constitution.”

State v. Ketelson, 2011-NMSC-023, ¶ 10, 150 N.M. 137, 257 P.3d 957 (internal quotation

marks and citation omitted). “If the right is protected by the federal constitution, then the

state constitutional claim is not reached.” Id. The right of confrontation is guaranteed by the

Sixth Amendment to the United States Constitution, which in turn “is made obligatory on

the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U.S. 400, 403 (1965).
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{9} The United States Supreme Court consistently has interpreted confrontation as a right

that attaches at the criminal trial, and not before. See Pennsylvania v. Ritchie, 480 U.S. 39,

52 (1987) (plurality opinion) (“[T]he right to confrontation is a trial right.”); Barber v. Page,

390 U.S. 719, 725 (1968) (“The right to confrontation is basically a trial right.”); cf.

Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding that the Confrontation Clause

prohibits introduction at trial of testimony from a preliminary hearing or other forms of

testimonial hearsay unless there had been a prior opportunity to cross-examine the original

declarant of the oral or written statements).

{10} The Court has based its stance on the differing purposes of pretrial hearings and trials

on the merits. See United States v. Raddatz, 447 U.S. 667, 679 (1980) (holding that because

the interests at stake are of a lesser magnitude, the process due at a pretrial “hearing may be

less demanding and elaborate than the protections accorded the defendant at the trial itself”);

see also Brinegar v. United States, 338 U.S. 160, 173 (1949) (“There is a large difference

between . . . things to be proved, as well as between the tribunals which determine [criminal

guilt as opposed to probable cause], and therefore a like difference in the quanta and modes

of proof required to establish them.”); Gerstein v. Pugh, 420 U.S. 103, 113-14, 120 (1975)

(holding that while the Fourth Amendment requires “a judicial determination of probable

cause as a prerequisite to extended restraint of liberty following arrest,” the United States

Constitution does not require trial formalities for a judicial probable cause determination for

issuance of an arrest warrant or a postarrest detention review).

{11} Applying federal law, we therefore must reject Defendant’s reliance on the

Confrontation Clause of the United States Constitution.

C. The New Mexico Constitution’s Right of Confrontation Is a Trial Right That

Does Not Apply at Preliminary Probable Cause Determinations

1. Interstitial Analysis Does Not Justify Deviating from Federal Law

{12} Where a defendant relies on the New Mexico Constitution as providing broader

protection, our interstitial approach requires an interpretation of the New Mexico

Constitution that is consistent with our interpretation of its federal counterpart unless a

different interpretation of the overlapping rights is justified as a result of “a flawed federal

analysis, structural differences between state and federal government, or distinctive state

characteristics.” State v. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1. This

analysis honors “the responsibility of state courts to preserve national uniformity in

development and application of fundamental rights guaranteed by our state and federal

constitutions” while preserving the right to interpret our own constitution differently where

a deviation is called for. Id. ¶ 21 (internal quotation marks and citation omitted).

{13} In this case, Defendant relies on our broader state constitutional interpretation in

Mascarenas, decided almost thirty years before Gomez when we adopted the interstitial
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approach. Mascarenas held that the New Mexico Constitution’s guarantee of personal

confrontation in criminal proceedings applies specifically to a probable cause determination

in a preliminary examination. See 1969-NMSC-116, ¶ 13. Therefore we will first conduct

our interstitial analysis, and then we will consider the stare decisis effect of overruling

Mascarenas. We begin our interstitial analysis by comparing the texts of the federal and state

constitutions.

{14} The Confrontation Clause of the United States Constitution is contained in the Sixth

Amendment’s listing of procedural rights in “all criminal prosecutions.”

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district wherein

the crime shall have been committed, which district shall have been

previously ascertained by law, and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

U.S. Const. amend. VI (emphasis added).

{15} Article II, Section 14 of the New Mexico Constitution also provides an array of

procedural rights to defendants in state criminal prosecutions. Its first paragraph addresses

initiatory proceedings, including the preliminary determination of probable cause to

prosecute:

No person shall be held to answer for a capital, felonious or infamous

crime unless on a presentment or indictment of a grand jury or information

filed by a district attorney or attorney general or their deputies, except in

cases arising in the militia when in actual service in time of war or public

danger. No person shall be so held on information without having had a

preliminary examination before an examining magistrate, or having waived

such preliminary examination.

N.M. Const. art. II, § 14.

{16} After the second paragraph, addressing grand jury proceedings that do not relate to

the issues in this case, Section 14—in language strikingly similar to that of the Sixth

Amendment—catalogues a variety of procedural rights in its final paragraph:

In all criminal prosecutions, the accused shall have the right to

appear and defend himself in person, and by counsel; to demand the nature

and cause of the accusation; to be confronted with the witnesses against him;

to have the charge and testimony interpreted to him in a language that he

understands; to have compulsory process to compel the attendance of
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necessary witnesses in his behalf, and a speedy public trial by an impartial

jury of the county or district in which the offense is alleged to have been

committed.

Id. (emphasis added).

{17} With regard to confrontation rights in particular, the New Mexico Constitution tracks

the wording of the Sixth Amendment: “In all criminal prosecutions, the accused shall [enjoy]

the right . . . to be confronted with the witnesses against him.” There is therefore no textual

justification for interpreting the two provisions inconsistently.

{18} We also see no relevant structural differences between the federal and New Mexico

criminal justice systems that would justify our treating the right of confrontation as anything

other than a right that must be honored at a criminal trial. See Rivera, 2008-NMSC-056, ¶

14 (observing that the right of confrontation is a “trial right”). In both systems, the trial is

the only point at which guilt or innocence may be definitively determined and is the stage

of the criminal prosecution at which such key procedural protections as the right to a jury

as factfinder and the prohibition against double jeopardy apply. See State v. Rudy B.,

2010-NMSC-045, ¶¶ 58-59, 149 N.M. 22, 243 P.3d 726 (holding that there is no right to a

jury as factfinder in a juvenile amenability hearing, just as there is no such right in a

sentencing hearing generally); State v. Isaac M., 2001-NMCA-088, ¶ 14, 131 N.M. 235, 34

P.3d 624 (holding that the Double Jeopardy Clause does not protect against “multiple

attempts to show probable cause” because “it is settled law that jeopardy does not attach

pretrial, but instead attaches” only at the criminal trial).

{19} While the right of confrontation is a vitally important feature of our criminal justice

system, there are many important stages of a criminal prosecution, each with different

purposes. There is nothing in the structure or text of the New Mexico Constitution that

would make it any more reasonable to apply the full panoply of constitutional trial rights at

preliminary examinations conducted to determine probable cause to prosecute than it would

be to do so at grand jury determinations of probable cause to prosecute or pretrial

determinations of probable cause for a search or arrest. We have refused to extend trial

confrontation rights to a variety of nontrial stages of criminal prosecutions. As we observed

in Reed v. State ex rel. Ortiz, 1997-NMSC-055, ¶ 49, 124 N.M. 129, 947 P.2d 86, 

[t]he rules of evidence do not apply in ‘proceedings for extradition or

rendition.’ Rule 11-1101(D)(2) NMRA 1997. Extradition hearings are not

criminal trials in which the guilt or innocence of the defendant is adjudicated.

The hearing functions simply to ascertain whether the evidence of criminal

conduct by the defendant is sufficient to justify extradition. Thus, the court

may consider unsworn statements of absent witnesses as well as hearsay.

(citation omitted), reversed on other grounds by New Mexico ex rel. Ortiz v. Reed, 524 U.S.

151, 155 (1998); see also State v. Guthrie, 2011-NMSC-014, ¶¶ 12, 43-44, 150 N.M. 84, 257
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P.3d 904 (overruling State v. Phillips, 2006-NMCA-001, 138 N.M. 730, 126 P.3d 546, and

holding that full confrontation rights do not apply in parole and probation revocation

proceedings and focusing on due process fairness concerns instead); Jones v. Murdoch,

2009-NMSC-002, ¶ 24, 145 N.M. 473, 200 P.3d 523 (stating that it is “the grand jury’s

prerogative to weigh the evidence before it as it sees fit in making an independent decision

whether to indict”); Buzbee v. Donnelly, 1981-NMSC-097, ¶ 16, 96 N.M. 692, 634 P.2d

1244 (noting that grand juries have wide latitude to investigate criminal activity to determine

probable cause and are “unrestrained by the technical, procedural and evidentiary rules

governing the conduct of criminal trials”). While Rule 11-1101 does not exempt preliminary

examinations from application of the New Mexico Rules of Evidence, Rule 11-

1101(D)(3)(a) provides a number of other examples of pretrial proceedings that are not

governed by the rules, such as grand jury proceedings and proceedings for nonjury

sentencing, granting or revoking probation, granting or revoking supervised release, and

extradition hearings. The issue in this case, of course, is not whether admission of the

laboratory report violated our rules of evidence or procedure but whether the Confrontation

Clause overrides our rules in nontrial proceedings.

{20} The majority of other states reject constitutional interpretations that would inject

confrontation rights into pretrial probable cause determinations. See State v. Randolph, 933

A.2d 1158, 1191 n.15 (Conn. 2007) (determining that the majority of the states conclude that

the right of confrontation is a trial right that does not apply to preliminary examinations); see

also, e.g., Blevins v. Tihonovich, 728 P.2d 732, 734 (Colo. 1986) (“The preliminary hearing

is not intended to be a mini-trial . . . , and a defendant has no constitutional right to an

unrestricted confrontation of all witnesses.”); State v. Sherry, 667 P.2d 367, 376 (Kan. 1983)

(“There is no constitutional right to allow the accused to confront witnesses against him at

the preliminary hearing.”); Sheriff v. Witzenburg, 145 P.3d 1002, 1005 (Nev. 2006)

(concluding that there is “[no] confrontation right at a preliminary examination”); State v.

Woinarowicz, 720 N.W.2d 635, 641 (N.D. 2006) (reiterating that the “right to confrontation

is a trial right, which does not apply to pretrial suppression hearings”).

{21} We therefore conclude that there are no principled reasons for departing from federal

constitutional law, and consistent with the law in most American jurisdictions, we hold that

nothing in Article II, Section 14 of the New Mexico Constitution requires affording

constitutional confrontation rights at a pretrial hearing to determine probable cause to

prosecute.

2. Stare Decisis Does Not Require Continued Adherence to Mascarenas

{22} This Court has never reexamined Mascarenas’s application of full confrontation

rights to a preliminary examination, despite the significant developments in Confrontation

Clause jurisprudence. See, e.g., Bullcoming v. New Mexico, 131 S.Ct. 2705, 2713, 564 U.S.

__, __ (2011) (holding that introduction of a forensic laboratory report at trial without

producing its author for personal cross-examination violates the Confrontation Clause);

Crawford, 541 U.S. at 42, 68-69 (overruling Ohio v. Roberts, 448 U.S. 56 (1980), and its
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reliability approach to admissibility of out-of-court statements). However, the Mascarenas

precedent was left in serious doubt in Rivera, when we overruled State v. Hensel, 1987-

NMCA-059, ¶¶ 15-16, 106 N.M. 8, 738 P.2d 126. See Rivera, 2008-NMSC-056, ¶ 22

(concluding that the Confrontation Clause does not bar the use of hearsay to demonstrate

probable cause and that “the Hensel opinion does not reflect current confrontation clause

jurisprudence and is of no current value to our courts”).

{23} Before reconsidering our own precedent and overcoming the legal stability principles

of stare decisis, we must consider “such common-sense factors as whether the precedent is

a remnant of abandoned doctrine, whether the precedent has proved to be unworkable,

whether changing circumstances have deprived the precedent of its original justification, and

the extent to which parties relying on the precedent would suffer hardship from its

overruling.” State v. Montoya, 2013-NMSC-020, ¶ 40, 306 P.3d 426 (internal quotation

marks and citation omitted).

{24} For reasons we have already addressed in the interstitial analysis, Mascarenas is a

textbook example of a precedent that should be overruled. It is an anomalous remnant of old

and unsound reasoning that is inconsistent with the principles underlying our criminal

procedure jurisprudence. By reasoning that full confrontation rights must be afforded in all

stages of a criminal proceeding, Mascarenas is an unworkable precedent that would require

not only personal attendance by laboratory analysts as in this case but more broadly all other

features of trial-type confrontation in warrant procedures, grand jury determinations, bail

hearings, motions hearings, extradition hearings, sentencings, and every other pretrial and

posttrial event, without regard for our rules of evidence or procedure, creating substantial

and unnecessary logistical difficulties throughout the course of a criminal case.

{25} There is no reasonable possibility of any person’s justified reliance on Mascarenas

being unfairly frustrated, either before or after the alleged commission of the crimes that may

be the focus of a pretrial probable cause determination. As we recently observed in State v.

Swick, 2012-NMSC-018, ¶ 18, 279 P.3d 747, “justifiable reliance, which is most important

in cases implicating property and contract rights, and least important in cases involving

procedural and evidentiary rules, is not present in this case.”

3. State v. Mascarenas Is Overruled

{26} To the extent that it held otherwise, we explicitly overrule Mascarenas and hold that

the right of confrontation in Article II, Section 14 of the New Mexico Constitution is a trial

right that does not apply to probable cause determinations in preliminary examinations. We

specifically do not reach out to address issues raised by Defendant that are beyond the scope

of the case presented to us, such as the right to subpoena defense witnesses, the use of

hearsay not admitted under a specific court rule, the scope of cross-examination, the right

to receive and review statements of adverse witnesses, and the right to review evidence

related to the charges against the accused. Because a claimed violation of Defendant’s

constitutional confrontation right was the only basis for Defendant’s motion to dismiss or
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remand, we affirm the ruling of the district court.

III. CONCLUSION

{27} We affirm Defendant’s conviction and sentence.

{28} IT IS SO ORDERED.

____________________________________

CHARLES W. DANIELS, Justice

WE CONCUR:

____________________________________

PETRA JIMENEZ MAES, Chief Justice

____________________________________

RICHARD C. BOSSON, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

____________________________________

BARBARA J. VIGIL, Justice