1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-008

Filing Date: March 29, 2012

Docket No. 31,241

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

STEVE TOLLARDO,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY

Eugenio S. Mathis, District Judge

Jacqueline L. Cooper, Acting Chief Public Defender

William A. O’Connell, Assistant Appellate Defender

Santa Fe, NM

for Appellant

Gary K. King, Attorney General

Francine Ann Baca-Chavez, Assistant Attorney General

Santa Fe, NM

for Appellee

OPINION

SERNA, Justice.

{1} Defendant Steve Tollardo was convicted by a jury of first-degree murder (accessory),

kidnapping (accessory), conspiracy to commit murder, and conspiracy to commit

kidnapping. He w as acquitted of aggravated arson ( accessory) and conspiracy to commit

aggravated arson. This Court has jurisdiction over Defendant’s direct appeal pursuant to

Article VI, Section 2 of the New Mexico Constitution and Rule 12-102(A)(1) NMRA.

{2} We address only one of the issues Defendant raises on appeal: whether the d istrict

### 2 court erred in advising the jury that two other individuals were convicted of conspiracy to

commit second-degree murder in connection with the same homicide underlying the charges

against Defendant. W e conclude that the d istrict court did err in mentioning the coconspirators’ convictions, and that the error was not harmless. A ccor dingly, we reverse

D efendant’s convictions and remand to the district court for a new trial. In reaching this

holding, we reexamine our harmless error analysis and clarify that a review of the particular

circumstances in each case, rather than mechanical application of a multi-factor test, must

guide the inquiry into whether a given trial error requires reversal.

I. BACKGROUND

{3} This appeal arises out of the gruesome killing of Juan Alcantar (Victim) in Taos on

September 6-7, 2003. The underlying facts of the crime are detailed in the Court’s prior

opinion in State v. Gallegos , 2011-NMSC-027, ¶¶ 5-14, 149 N.M. 704, 254 P.3d 655, which

resolved an appeal filed by Lawrence Gallegos, one of Defendant’s co-conspirators.

Additional facts are set forth below to provide context for the reso lution of the present

appeal.

{4} Testimony at Defendant’s trial established the following sequence of events. On the

night of September 6, 2003, Defendant and Victim visited a sports bar in Taos, where they

were denied entry. Ivan Romero, a friend of Defendant , exited the sports bar, approached

Defendant and Victim in the bar’s parking lot, and punched Victim. Defendant and Victim

then left the parking lot together, and Ivan Romero left separately.

{5} Later that night, Defenda nt and Victim were “kicking back” at Richard Anaya’s

house with Anaya himself, Gallegos, Luis Trujillo, and Racquel Gonzales, later joined by

Ivan Lujan. Apparently without warning, Trujillo and Gallegos began kicking and hitting

Victim. Defendant and Trujillo then drove to the house of Elias Romero, the father of Ivan

Romero. Elias Romero was in the house along with his girlfriend Michelle Martinez, who

would be the State’s main witness, and his nephew Jaime Romero. Defendant, who

appeared “hyped up,” told the occupants of the house about the al tercation between Ivan

Romero and Victim and added that Victim was tied up at Anaya’s house. Defendant

explained th at after the incident at the sports bar he had gone to see Ivan Romero, who

disliked Victi m and suggested that Elias Romero “would know what to do” with Victim.

Defendant also told Elias Romero that Victim had a gun and had threatened to kill Ivan

Romero. Jaime Romero mentioned that he had “s ome soldiers” who could “take care of it.”

Defendant replied that it was not his “viaje,” meaning not his problem. Elias Romero gave

a syringe containing a lethal dose of heroin to M artinez and instructed her to “inject

[Victim] and make it look like he overdosed.”

{6} Martinez then traveled with Defendant and Trujillo to Anaya’s house. When they

arrived, Victim was lying on the kitchen floor with his hands tied and a black eye. Gallegos

was standing over Victim with a kitchen knife. Martinez sat on Victim’s hand and injected

him with the lethal dose of heroin. Victim cried out to Defendant for help and said, “Steve,1 The record is not conclusive as to whet her Jaime Romero and Ivan Romero entered

pleas of guilty or no contest to conspiracy to commit second-degree murder, although the



### 3 please help me.” Defendant told Victim that “he shouldn’t have fucked with Diablo,” a

nickname for Ivan Romero.

{7} After Victim stopped m oving and Martinez believed him to be dead, Defendant,

Gallegos, and Trujillo moved Victim onto a tablecloth. The other individuals, Anaya, Lujan,

and Gonzales, were elsewhere in the house during this time. W hen Victim was moved onto

the tablecloth, he began moaning. Martinez was afraid that Victim might regain

consciousness, so she instructed Defendant, Gallegos, and Trujillo to leave Victim alone.

A short time later, Defendant and Gallegos carried Victim to Victim’s car and placed him

on the passenger’s seat.

{8} Martinez testified that “th e plan” laid out by Elias Romero was for her to drive

Victim’s car and leave Victim in a secluded place to make it appear as though Victim died

of a drug overdose. Martinez drove Victim’s car with Gallegos and Victim inside,

attempting to follow Defendant and Trujillo who were driving in a separate car. Martinez

was unable to follow Defendant and Trujillo, so she drove to a nearby church par king lot.

Eventually, Defendant and Trujillo arrived at the parking lot, at which point Martinez and

Gallegos got into the car with Defendant and Trujillo, leaving the unconscious Victim in his

car.

{9} During the drive back to Elias Romero’s house, Gallegos and Defendant discussed

burning Victim’s car to destroy Gallegos’ fingerprints and other evidence that might show

that Victim did not die of a drug overdose. At Elias Romero’s house, Gallegos obtained

lantern fuel and left with Defendant and Trujillo. Some time later, Defendant, Gallegos, and

Trujillo returned once again to Elias Romero’s house. Defendant told Martinez that he,

Gallegos, and Trujillo used the lantern fuel and a cherry bomb to set fire to Victim’s car with

Victim inside.

{10} Seven individuals were prosecuted in connection with Victim’s death: Defendant,

Lawrence Gallegos, Luis Trujillo, Elias Romero, Michelle Martinez, Jaime Romero, and

Ivan Romero. Gallegos was convicted by a jury of first-degree murder, aggravated arson,

kidnapping, and three counts of conspiracy. Id. ¶ 2. Trujillo was convicted by a jury of

first-degree murder, aggravated arson, conspir acy to commit first-degree murder, conspiracy

to commit kidnapping, and conspiracy to commit aggravated arson. Trujillo , No. 31,500,

slip op. at 2 (N.M. Sup. Ct. June 27, 2011). Elias Romero was acquitted of first-degree

murder and conspiracy to commit first-degree murder. Martinez pleaded guilty to

conspiracy to commit first-degree murder. Jaime Romero and Ivan Romero also r eso lved

the charges against them through pleas, with the former app arently pleading guilty to

conspiracy to commit second-degree murder, and the latter pleading no contest to the same

charge. 1 This Opinion will refer to these latter tw o pleas as “the Romeros’ pleas” or “thedistrict court and counsel consistently referre d to Ivan Romero as having pleaded no contest

to the charge.



### 4 Romeros’ convictions.”

{11} At Defendant’s trial, defense counsel acknowledged during his opening statement

that Defendant was present at the home of Richard Anaya on September 6-7, 2003, where

Victim was forcibly held before being killed. D efense counsel asked the jury to “look

closely” at Defendant’s “real involvement” in Victim’s death, explaining that “it’s not

enough that [Defendant] was there. . . . There has to be something more by the State to show

that [Defendant] actually helped, encourag ed or caused this crime to be committed.”

Amplifying this point, d efense counsel stated that three other individuals who were also

present at Anaya’s home that night–Anaya himself, Racquel Gonzales, and Ivan Lujan–were

not charged in connection with Victim’s death. Defense counsel clarified that while Anaya

was charged initially, the State dropped charges after further investigation.

{12} Later on in the trial, during direct examin ation of John Wentz, a detective with the

Taos Police Department who investigated Vic tim’s death, the prosecutor asked if Detective

Wentz had personal knowledge as to whether Ivan Romero and Jaime Romero had been

convicted in connection with Victim’s death. D efense counsel objected that the question

was irrelevant. Outside the presence of the jury, the State responded that the disposition of

the charges against Ivan Romero and Jaime Romero was relevant because

[w]ithout asking that question, we would be left with the jury wondering

what happened, if Ivan and Jaime were ever convicted. . . .

For the jury not to have any information as to the particular people

who this detective’s investigation revealed, their not having been charged

and convicted would leave a hole in the evidence for the jury that we believe

we could fill this way.

{13} The district court acknowledged that defe nse counsel’s objection “[wa]s somewhat

well taken in that this testimony [wa]s being offered to prove the truth of the matter

asserted.” Nevertheless, the district court decided th at the fact that Ivan Romero and Jaime

Romero were convicted through pleas in connection with Victim’s death would be presented

to the jury, and that the “best route” to doing so would be for the court to take judicial notice

of the Romeros’ pleas rather than allowing Detective Wentz to testify on that matter.

{14} After the State rested its case ( the defense did not call any witnesses), and before

closing arguments, the district court informed the jury that

### 5 there are certain facts that you must accept as true. You can give them whatever

weight you want to give it [sic]. But there was a question asked of Detective

Wentz while he was testifying as to whether or not certain people have been

convicted. I am going to instruct you, without requiring testimony or otherwise,

that the court has taken notice that Jaime and Ivan Romero were convicted of

conspiracy to commit second degree murder. Ivan Romero was convicted

pursuant to a no contest plea. A no contest plea means that a defendant does not

admit or deny guilt, but will accept a conviction.

You may, but are not required to accept this as a fact. And you may give

this evidence whatever weight you believe it deserves.

The jury convicted Defendant on the charges listed above, including first-degree murder.

This appeal followed.

II. DISCUSSION

A. Admitting the Romeros’ Convictions Violated Defendant’s Sixth Amendment

Right to Confrontation

{15} Defendant argues that introducing the Romeros’ convictions to the jury violated his

right, under the Sixth Amendment to the United States Constitution, to confront the

witnesses against him. Claimed violations of the Sixth Amendment right to confrontation

are reviewed de novo. State v. Cabezuela , 2011-NMSC-041, ¶ 49

, 150 N.M. 654, 265 P.3d

705. Under the Sixth Amendment, every criminal defendant “shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend. VI. “[T]his bedrock

procedural guarantee applies to both federal and state prosecutions.” Crawford v.

Washington , 541 U.S. 36, 42 (2004). The Confrontation Clause “applies to witnesses against

the accused–in other words, those who bear testimony. Testimony, in turn, is typically [a]

solemn declaration or affirmation made for the purpose of establishing or proving some

fact.” Id. at 51 (internal quotation marks and citation omitted).

{16} The United States Supreme Court, however, to date has avoided establishing a firm

definition of what constitutes a “testimonial statement.” Id. Instead, the Supreme Court has

identified a “core class” of testimonial statements:

[ E ] x parte in-court testimony or its functional equivalent–that is, material

such as affidavits, custodial examinations, prior testimony that the defendant

was unable to cross-examine, or similar pretrial statements that declarants

would reasonably expect to be used prosecutorially, extrajudicial statements

. . . contained in formalized testimonial materials, such as affidavits,

depositions, prior testimony, or confessi ons, statements that were made under

circumstances which would lead an objective witness reasonably to believe

that the statement would be available for use at a later trial.

### 6 Id. at 51-52 (internal quotation marks and citations omitted). These formulations “all share

a common nucleus.” Id. at 52. “[A]t a minimum,” the Supreme Court explained, the term

“testimonial” covers “testimony at a preliminary hearing, before a grand jury, or at a formal

trial.” Id. at 68. Considering the types of statemen ts deemed to be testimonial by the United

States Supreme Court, this Court recently noted that “[w]hat these examples have in

common is that they lend themselves to an analysis that focuses largely on surrounding

circumstances to separate testimonial from non-testimonial statements.” State v. Mendez

, 2010-NMSC-044, ¶ 29, 148 N.M. 761, 242 P.3d 328. We therefore look at the

circumstances surrounding how pleas of guilty and no contest are entered in New Mexico

to determine whether such pleas are testimonial or non-testimonial statements.

{17} Before a court accepts a defendant’s plea of gu ilty or no contest, the court must first

personally address the defendant in open court, “informing the defendant of and determining

that the defendant understands” certain rights and consequences surrounding the plea offer.

Rule 5-303(F) NMRA

. Once the court has so informed the defendant and determined that

the defendant understands those rights and consequences, the court must then determine that

the defendant is entering a plea of guilty or no contest voluntarily. Rule 5-303(G); see also

State v. Garcia , 1996-NMSC-013, 121 N.M. 544, 546-47, 915 P.2d 300, 302-03 (describing

the procedures New Mexico courts follow to ensure that a defendant’s guilty plea is knowing

and voluntary).

{18} The procedures a court must follow in accepting a defendant’s plea ensure that the

defendant knows and understands the gravity of the statement he or she is about to make, and

that the defendant is making the statement volunt arily, to a judge in open court, with a full

understanding of his or her rights and the conse quences of making such a statement. Under

these circumstances, a plea is more akin to “a formal statement to government officers” than

“a casual remark.” Crawford , 541 U.S. at 51. It is reasonable to conclude that such a

knowing and voluntary statement “would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial. ” I d. at 52. We hold, therefore, that

a ple a of guilty or no contest constitute s a “testimonial statement” under Crawford

. See

United States v. McClain , 377 F.3d 219, 221 (2d Cir. 2004) (“[I]t is clear that a plea

allocution constitutes testimony, as it is formally given in court, under oath, and in response

to questions by the court or the prosecutor.”); State v. Fields , 168 P.3d 955, 965 (Haw. 2007)

(listing “plea allocutions” as “undeniably testimonial under the sixth amendment”); People

v. Duff , 872 N.E.2d 46, 50 (Ill. App. Ct. 2007) (concl uding that a co-defendant’s guilty plea

is “testimonial” under Crawford ) ; see also United States v. Massino

, 319 F. Supp. 2d 295,

298 (E.D.N.Y. 2004); Morten v. State

, 856 A.2d 595, 600 (D.C. 2004). As a testimonial

statement, a co-defendant’s plea of guilty or no contest is inadmissible against a defendant

to prove the truth of the matter asserted unless the demands of the Confrontation Clause have

been met, in other words that the defendant has an opportunity to cross-examine the codefendant concerning the plea agreement. See Crawford , 541 U.S. at 53-54 (holding that a

prior opportunity to cross-examine the witness satisfies the Confrontation Clause).

### 7 {19} In Kirby v. United States , the United States Supreme Court held that it was a

violation of the Confrontation Clause to admit the convictions of co-defendants to prove a

“vital fact involved in the charge against” a defendant. 174 U.S. 47, 61 (1899) . This Court

adopted that holding in State v. Martino

, ruling that the guilty plea of a gambler could not

be admitted against the defendant, who was standing trial for permitting the gambling to take

place on his premises. 25 N.M. 47, 47, 176 P. 815, 815-16 (1918) (citing K irby

, 174 U.S.

47). We reiterated this principle in S tate v. Jackson , where we reversed a defendant’s

convictions and noted that a co-defendant’s guilty plea was “particularly not admissible as

to elements of the offense as agains t a person not a party to the proceeding.” 47 N.M. 415,

415, 143 P.2d 875, 877 ( 1943). Similarly, in State v. Urioste , the Court of Appeals

addressed a situation where a defendant was ch arged with conspiracy to commit murder. 94

N.M. 767, 768, 617 P.2d 156, 157 (Ct. App. 1980). Th e theory of the State’s case was that

the defendant conspired with another person to kill the victim. Id. The State asked the court

to take judicial notice that the co-defendant pleaded guilty to conspiracy to commit murder,

arguing that the conviction was relevant “to prove that this man was part of the conspiracy,

admitted that he was, in fact, a member of that conspiracy, and that he did, in fact, conspire

with [the defendant].” Id. at 768-69, 617 P.2d at 157-58 (inter nal quotation marks omitted).

The Court of Appeals held that it was erro r to admit the co-defendant’s convictions

“[b]ecause it deprived [the defendant] of the right to confront witnesses against her.” Id. at

769, 617 P.2d at 158; see also Bisaccia v. Att’y Gen. of the State of N.J. , 623 F.2d 307, 314

(3d Cir. 1980) (Seitz, J., concurring) (reasoni ng that admitting the guilty plea of another

person violated the defendant’s confrontation rights, not with respect to the person who

tendered the plea but with respect to “the witnesses that the government would have

presented in a trial of the third person”).

{20} Defendant argues that the conviction of a co-defendant is entirely inadmissible at

trial. A co-defendant’s conviction, however, may be admissible whe n it is introduced to

impeach that co-defendant if he or she testifies, rather than as substantive evi dence of the

defendant’s guilt. See State v. Gilbert , 98 N.M. 77, 83, 644 P.2d 1066, 1072-73 (Ct. App.

1982) (distinguishing Jackson and Urioste and allowing the admission of the co-defendants’

convictions because “the purpose of questioni ng [the co-defendants] regarding their guilty

pleas clearly was not solely to prove existence of a conspiracy in which [the] defendant

participated,” but was also used to attack the credibility of those co-defendants); see also

United States v. Baez , 703 F.2d 453, 455 (10th Cir. 1983) (“[E ]ither the government or the

defense may elicit evidence of a guilty plea for the jury to consider in assessing the

codefendant’s credibility as a witness.”).

{21} Indeed, here defense counsel elicited testimony from Martinez about her guilty plea

in connection with Victim’s death in an effo rt to impeach her credibility. In contrast to

Martinez, neither Jaime Romero nor Ivan Romero testified at Defendan t’s trial, and thus

their credibility was never at issue. Their convictions, therefore, could not be admissible for

impeachment purposes under the above rationale.

{22} We reject the State’s claim that the otherw ise inadmissible convictions were properly2 The prosecutor obtained testimony that easily could have been used to dispel any

concern that the jury would be confused about the role of different individuals in the events

leading up to Victim’s death. For instance, Detective Wentz testifiedthat in his interview

with Martinez, she implicated some individuals as being involved in Victim’s death and

others as merely being present at Anaya’s house. Martinez herself testified on direct

examination that she never saw Anaya, Gonzal es, or Lujan “do anything” to Victim. And

Detective Wentz testified that another indivi dual, Elias Romero, was charged in connection

with Victim’s death.



### 8 placed before the jury to remedy the assertedly “unfair” reference by defense counsel to the

fact that other named ind i viduals (Anaya, Gonzales, and Lujan) had not been charged in

connection with Victim’s death. When a defendant makes a claim that “opens the door” to

inadmissible evidence, the doctrine of curativ e admissibility in some circumstances may

permit the State to rebut that claim w ith otherwise inadmissible evidence. See State v. Ruiz

, 2001-NMCA-097, ¶ 47, 131 N.M. 241, 34 P.3d 630 (citing State v. Baca , 120 N.M. 383, 390

n.2, 902 P.2d 65, 72 n.2 (1995)). The State, however, does not explain the supposed

equivalence between the convictions of the Romeros (who were not present at Anaya’s

house where Victim was held against his will prior to being killed), and defense counsel’s

statement that no charges were filed against Anaya, Gonzales, and Lujan (who were present

at Anaya’s house). 2 Furthermore, the prosecutor sought testimony about and the district

court took judicial notice of the Romeros’ convictions, not just the charges filed against

them. We need not decide here whether th e doctrine of curative admissibility may be used

to admit testimonial statements in violation of the Confrontation Clause, because curative

admissibility is inapplicable to this case.

{23} The district court’s effective admission of th e Romeros’ testimonial plea agreements,

therefore, violated Defendant’s Sixth Amendm ent right to confront the witnesses against

him. See, e.g.

, State v. Lopez , 2007-NMSC-037, ¶ 21, 142 N.M. 138, 164 P.3d 19 (finding

a “per se” Sixth Amendment violation in admitting testimonial statements of co-defendants

who did not testify at the defendant’s trial where the defendant did not have an opportunity

to cross-examine the co-defendants).

{24} Although not necessary for the resolution of this appeal, we note that the introduction

of the Romeros’ convictions also presents a serious due process problem. Every criminal

defendant has a right “to have his guilt or innocence determined by the evidence presented

against him, not by what has happened with regard to a criminal prosecution against

someone else.” United States v. Toner , 173 F.2d 140, 142 (3d Cir. 1949); see also Bisaccia

, 623 F.2d at 312-13 (relying in part on Toner

, holding that admission of a co-conspirator’s

guilty plea violated the defendant’s due process rights, and remanding to the district court

for harmless error review). Just as it would be improper to allow the introduction of a coconspirator’s acquittal to show that the defendant himself should be acquitted, it would be

similarly improper to admit evidence of a non-testifying co-conspirator’s conviction to

### 9 establish that the defendant himself is guilty. See United States v. Sanders , 95 F.3d 449, 454

(6th Cir. 1996) (“[U]nder a parallel treatment for guilty pleas and acquittals , [a coconspirator’s] acquittal may not be admitted” (citing United States v. Fernandez-Roque

, 703

F.2d 808, 813 (5th Cir. 1983))). Here, even though the distri ct court recognized the danger

in allowing testimony about Ivan and Jaime Romero’s involvement in Victim’s murder, it

nonetheless informed the jury about the Romeros’ convictions. By instructing the jury that

the convictions were facts that it “must accept as true,” the district court created the risk that

Defendant’s guilt or innocence would in some part be determined by “what . . . happened

with regard to a criminal prosecution against someone else.” Toner , 173 F.2d at 142.

B. Applicable Standard for Harmless Error Review

{25} Im properly admitted evidence is not grounds for a new trial unless the error is

determined to be harmful. State v. Macias

, 2009-NMSC-028, ¶ 37, 146 N.M. 378, 210 P.3d

804; State v. Barr

, 2009-NMSC-024, ¶ 47, 146 N.M. 301, 210 P.3d 198. A “very limited

class of errors,” not at issue here, is deemed structural and is not reviewed for harmless error

but instea d “require automatic reversal.” S tate v. Alvarez-Lopez

, 2004-NMSC-030, ¶ 51,

136 N.M. 309, 98 P.3d 699. Where, as here, a constituti onal error has been established, the

State bears the burden of proving that the error is harmless. See, e.g.

, State v. Gutierrez

, 2007-NMSC-033, ¶ 18, 142 N.M. 1, 162 P.3d 156 (“The State has the burden of establishing

that [a] constitutional error was harmless beyond a reasonable doubt.” (internal quotation

marks and citation omitted)).

{26} The concept of h armless error arose “as a reaction to an era marked by automatic

reversal of cases for any procedural error.” Barr , 2009-NMSC-024, ¶ 47 (citing 7 Wayne

R. LaFave et al., Criminal Procedure § 27.6(a), at 99-100 (3d ed. 2007)). The harmless error

rule originally developed outside the context of constitutional review, simply to “require

appellate courts to affirm lower courts notwithstanding technical errors, defects, or

exceptions which did not affect the substantial rights of the parties.” Barr , 2009-NMSC024, ¶ 48 (quoting 7 LaFave, supra , § 27.6(a) at 101 internal quotation marks and brackets

omitted)).

{27} Although not always employing the term “harmless error,” New Mexico courts

historically evaluated claims of error by inquiring into how s everely the defendant was

affected thereby. In S tate v. Coyle

, for example, this Court considered whether or not a trial

error worked a “prejudice” against the defendant, concluding that the error was harmless

because “[n]one of the evidence here in questi on could have influenced the jury.” 39 N.M.

151, 155, 42 P.2d 770, 772 (1935); see also State v. Pruett , 22 N.M. 223, 235, 160 P. 362,

366 (1916) (A trial error was not harmless because improperly admitted testimony was

“highly prejudicial” to the defendant.); State v. Varos , 69 N.M. 19, 23, 363 P.2d 629, 631

(1961) (improperly admitted testimony about a lie -detector test was reversible error because

its “net effect . . . was to cast doubt upon the tr uth and veracity of the defendant in a manner

not countenanced by the courts,” thereby “taint[ing]” the jury’s verdict.); State v. Rowell , 77

N.M. 124, 128, 419 P.2d 966, 969 (1966) (The prosecution’s inquiry into the defendant’s3 Our Rules of Criminal Procedure also explicitly recognize the concept of harmless

error and instruct courts that trial errors are not grounds for “granting a new trial or for

setting aside a verdict, for vacating, modifying or otherwise disturbing a judgment or order,

unless refusal to take any such action appears to the court inconsistent with substantial

justice.” Rule 5-113(A) NMRA; Rule 6- 704(A) NMRA; Rule 7-704(A) NMRA; Rule 8-

704(A) NMRA.



### 10 prior conviction “was fraught with such harm to defendant as to be irremediable.” (internal

quotation marks and citation omitted)).

{28} In the 1960s, “with the unprecedented expans ion of federal constitutional protections

into the criminal process, harmless error analysis was imported into the constitutional

context.” Barr , 2009-NMSC-024, ¶ 49 (citing 7 LaFave, supra

, § 27.6(a) at 101). In F ahy

v. Co nnecticut , the United States Supreme Court held that the erroneous admission of

unconstitutionally obtained evidence required reversal, noting that the Supreme Court was

“no t concerned . . . with whether there was sufficient evidence on which the [defendant]

could have been convicted” ab sent the erroneously admitted evidence, but rather whether

there was a “reasonable possibility that the evidence complained of might have contributed

to the conviction.” 375 U.S. 85, 86-87 (1963). The Supreme Court refined this principle in

Chapman v. California , holding that “before a federal constitutional error can be held

harmless, the court must be able to declare a belief that it was harmless beyond a reasonable

doubt,” 386 U.S. 18, 24 (1967), which tracked th e prosecution’s burden of proof for

establishing gui lt in the first instance. The Supreme Court made clear that constitutional

errors meeting this standard would be found “so unimportant and insignificant that they may,

consistent with the Federal Constitution, be deemed harmless, not requiring the automatic

reversal of the conviction.” I d. at 18, 22. Within a few years, appellate courts in New

Mexico were applying this emerging federal constitutional standard to their harmless error

review

. 3 See, e.g.

, State v. Jones , 80 N.M. 753, 753-54, 461 P.2d 235, 235-36 (Ct. App.

1969) (State failed to show beyond a reasonable doubt that a prosecutor’s comment to the

jury about the defendants’ failure to testify was harmless.); State v. Spearman , 84 N.M. 366,

369, 503 P.2d 649, 652 (Ct. App. 1972) (State did not meet its burden to show beyond a

reasonable doubt that the trial court’s failure to give a jury instruction was harmless.)

.

{29} In 1980, this Court departed significantly fr om the harmless error standard developed

in Fahy and Chapman , and announced a new three-part test for reviewing courts to apply in

their harmless error analysis:

For an error by the trial court to be considered as harmless, there must be:

(1) substantial evidence to support the conviction without reference to the

improperly admitted evidence, (2) such a disproportionate volume of

permissible evidence that, in compar ison, the amount of improper evidence

will appear so minuscule that it could not have contributed to the conviction,

and (3) no substantial conflicting eviden ce to discredit the State’s testimony.4 This holding echoed the standa rd set forth in F ahy , 375 U.S. at 86-87, although

modified from “reasonable possibility” to “reasonable probability” for reasons the Court of

Appeals did not articulate, but perhaps owing to the non-constitutional nature of the error

at issue. See Barr , 2009-NMSC-024, ¶ 53.

5 The United States Supreme Court’s decision in Schneble is the source of the

principle that “overwhelming” evidence of gu ilt may help establish harmless error, although

Schneble retained Chapman’s requirement that harmlessness be “clear beyond a reasonable

doubt.” 405 U.S. at 430. Chapman itself expressed hesitation at the “emphasis, and perhaps

overemphasis” of “overwhelming evidence” in harmless error review. 386 U.S. at 23.



### 11 State v. Moore , 94 N.M. 503, 504, 612 P. 2d 1314, 1315 (1980).

{30} In Moore , the defendant was convicted of criminal sexual penetration, among other

crimes. Id. He appealed his convictions to the C ourt of Appeals on the ground that the trial

court erred in permitting the prosecution to admit testimony of the victim concerning her

mental state following the rape. Id. “The Court of Appeals reversed on the basis of possible

prejudice from the admission into evidence of improper testimony.” Id. On review, this

Court agreed with the Court of Appeals’ conclusion that the v ictim’s testimony was

improperly admitted. Id. The Court went on, however, to apply the three-part test quoted

above to conclude that the erroneous admission of the victim’s testimony was harmless. I d.

{31} Moore announced the three-part test without analysis or persuasive precedent. The

two cases cited in support, State v. Day , 91 N.M. 570, 577 P.2d 878 (Ct. App. 1978), and

State v. Self , 88 N.M. 37, 536 P.2d 1093 (Ct. A pp. 1975), neither adopted the three-part test

nor provided a logical foundation for its use. Rather, D ay held that an error is only harmless

if the reviewing court concludes “that the evidence of guilt was so overwhelming that there

is no reasonable probability that the misconduct contributed to the conviction.” 91 N.M. at

573-74, 577 P.2d 878, 881-82. 4 S elf cited two prior Court of Appeals opinions, neither of

which anticipates the three-part test created by Moore . One of those opinions, State v.

Thurman , explained that an error would be treated as harmless if there was “no reasonable

possibility that evidence improperly admitted, and then stricken by the trial court,

contributed to the conviction.” 84 N.M. 5, 9, 498 P.2d 697, 701 (Ct. App. 1972) (citing

Schneble v. Florida , 405 U.S. 427 (1972)). T he other opinion

, Sta te v. Lopez, determined

that a trial error was harmless because “‘[t]he evidence, exclusive of the improperly admitted

exhibits, points so overwhelmingly 5 to the guilt of defendant of the crime of which he was

convicted, that there is no reasonable possibility that the admission into evidence of these

improperly received exhibits contributed to his conviction.’” 80 N.M. 599, 458 P.2d 851

(Ct. App. 1969) (quoting State v. Gray , 79 N.M. 424, 428, 444 P.2d 609, 613 (Ct. App.

1968)), abrogated on other grounds by State v. Holly , 2009-NMSC-004, 145 N.M. 513, 201

P.3d 844.

### 12 {32} These opinions f rom the dozen or so years preceding Moore all provide slightly

different phrasings of the same concept–that a trial error should be held harmless if there is

“no reasonable possibility” (if the claimed error is constitutional in nature) or “no reasonable

probability” (if the claimed error is evidentiary or procedural but does not implicate the

defendant’s constitutional rights) that the error contributed to the defendant’s conviction,

which might be determined in part by the ove rall strength of the evidence that the State

marshaled against the defendant.

{ 33} No opinion of this Court prior to Moore

, including the cases Moore relied upon that

are discussed above, employed a three-part test for evaluating harmless error, and none

appears to have made any reference to the third Moore factor–the presence or absence of

“substantial conflicting evidence” from th e defendant. 94 N.M. at 505, 612 P.2d at 1 316.

Moore

, then, shifted the harmless error inquiry away from an assessment of an error’s impact

on the verdict, and toward a more mechanical approach that requires appellate courts to

weigh an error against properly admitted evidence in favor of conv iction as well as any

contrary evidence discrediting the prosecution’s case. Id.

{34} In addition to lacking a reasoned foundation in New Mexico law for its existence, the

Moore test has never been fully adopted by this Court, casting further doubt on its legitimacy

and utility. While numerous cases have relied on Moore , many other opinions have avoided

discussion of the three-part test altogether and instead followed the well- established

principle of federal harmless error review that whether a given error requires reversal

depends upon the “reasonable possibility” or “reasonable probability” that the error

contributed to the conviction. S ee, e.g.

, State v. Gonzales

, 2000-NMSC-028, ¶ 42, 129 N.M.

556, 11 P.3d 131 (applying the “reasonable probability” s tandard to a non-constitutional

error); Alvarez-Lopez , 2004-NMSC-030, ¶ 25 (applying the “reasonable possibility” standard

to a consti tutional error); S tate v. Zamarripa

, 2009-NMSC-001, ¶ 52, 145 N.M. 402, 199

P.3d 846 (applying both the “reasonable possibility” standard and the requirement that the

error be proven harmless beyond a “re asonable doubt”). Other opini ons, without specifically

invoking the “reasonable possibility” or “reasona ble probability” standard, have remained

focused on the likelihood that the error contributed to the underlying verdict. See, e.g.

, State

v. Paiz , 2011-NMSC-008, ¶ 19, 149 N.M. 412, 249 P .3d 1235 (analyzing whether error in

misjoinder resulted in “prejudice” through a “subs tantial and injurious effect or influence”

on the verdict (internal quotation marks and citation omitted)); Fuson v. State , 105 N.M. 632,

634, 735 P.2d 1138, 1140 (1987) (determining that impairment of a petitioner’s right to a

peremptory challenge “prejudice[d]” the petitioner, requiring a new trial).

{35} The present appeal is not this Court’s first effort to address Moore’s divergence from

established standards of harmless error review. In B arr

, we examined how New Mexico

courts had up to that point applied the M oore test, noting that the test had in some cases

replaced the “reasonable possibility” (or “reasonable probability”) standard in determining

whether an error is harmless. B arr

, 2009-NMSC-024, ¶ 52; see also State v. Williams

, 117

N.M. 551, 562, 874 P.2d 12, 23 (1994) (Montgomery, C.J., specially concurring) (suggesting

### 13 that Moore provides a measure of “harmless error” that is different from the “reasonable

possibility” standard).

{36} In Barr

, the defendant was tried for the murder of a former roommate. Another

former roommate testified on behalf of the State, and defense counsel attempted to impeach

that witness b y citing inconsistencies between his in-court testimony and a videotaped

statement that he had made to police. 2009-NMSC-024, ¶ 17. The State then introduced,

and the district court admitted, the videotaped statement, in which the witness detailed the

defendant’s killing of the victim and reflected on the defendant’s bad character. I d. ¶¶ 13-

16. After being convicted, the defendant app ealed on the basis that the admission of the

videotaped statement was improper. Id. ¶ 22. The State responded that even if the

admission of the statement was error, that error was harmless. I d. ¶ 46. We agreed that the

error was harmless, and went on to clarify the standard that appellate courts must apply in

maki ng such determinations. We “re-fortif[ied] the boundary between non-constitutional

and constitutional error for the purpose of harmless error analysis,” id. ¶ 53, explaining that

“it is appropriate to review non-constitutional e rror with a lower standard than that reserved

for our most closely held rights,” id. ¶ 51, and therefore reviewing courts “should only

conclude that [a constitutional] error is harmless when there is no reasonable possibility it

affected the verdict.” Id. ¶ 53. By comparison, a non-constitutional error is harmless “when

there is no reasonable probability the error affected the verdict.” Id. ¶ 53. Recognizing the

federal constitutional underpinnings for such a distinction, id. ¶¶ 49-51, we observed that

“the reasonable possibility standard continues to resemble the reasonable doubt standard

while the reasonable probability standard requires a greater degree of likelihood that a

particular error affected a verdict.” Id. ¶ 54. We reaffirm that holding here.

{37} Barr then discussed the “long-sta nding three-part test” from Moore , which we noted

“makes no mention of the ‘reasonable possibility’ standard.” Barr , 2009-NMSC-024, ¶ 52.

We proceeded to sanction the three Moore factors, not as a mandatory test as they had been

utilized to date, but rather as a “useful framew ork” which would “provide . . . a reliable basis

for determining whether an error is harmless.” Id . ¶ 55. Since Barr , however, courts have

continued to employ the Moore factors as an inflexible test when assessing the harmfulness

of erroneously admitted evidence. See, e.g.

, State v. Wilson , 2011-NMSC-001, ¶¶ 40-42,

149 N.M. 273, 248 P.3d 315; State v. Tom , 2010-NMCA-062, ¶ 20, 148 N.M. 348, 236 P.3d

660. Because this Court has a responsibility to “correct a judicial misinterpretation of our

caselaw that may otherwise remain on the books as an erroneous precedent,” Rivera v. Am.

Gen. Fin. Servs., Inc ., 2011-NMSC-033, ¶ 41, 150 N.M. 398, 259 P.3d 803, we overrule

Moore to the extent that it mandated the three-part test as the proper analytical framework

for reviewing harmless error. For the reasons discussed below, we also overrule that portion

of Barr that recognized the legitimacy of Moore

, even when its factors are used more

flexibly, as well as all other cases to the extent that they applied Moore to resolve a claim6 Our review has located the following cases where our appellate courts analyzed

harmless error under the Moore test. Any other opinions that similarly applied the Moore

test are also overruled to the extent they did the same: State v. Wilson , 2011-NMSC-001,

¶¶ 39-42, 149 N.M. 273, 248 P.3d 315; State v. Branch , 2010-NMSC-042, ¶¶ 15-17, 148

N.M. 601, 241 P.3d 602; State v. Aragon , 2010-NMSC-008, ¶¶ 35-36, 147 N.M. 474, 225

P.3d 1280; State v. Marquez , 2009-NMSC- 055, ¶¶ 21-25, 147 N.M. 386, 223 P.3d 931;

State v. Macias , 2009-NMSC-028, ¶¶ 39-44, 146 N.M. 378, 210 P.3d 804; State v.

McClaugherty , 2003-NMSC-006, ¶¶ 32-34, 133 N.M. 459, 64 P.3d 486; State v. Gonzales

, 2000-NMSC-028, ¶ 42, 129 N.M. 556, 11 P.3d 131; State v. Duffy , 1998-NMSC-014, ¶¶ 38-

41, 126 N.M. 132, 967 P.2d 807; State v. Ross , 1996-NMSC-031, 122 N.M. 15, 27, 919 P.2d

1080, 1092; State v. Williams , 117 N.M. 551, 559, 874 P.2d 12, 20 (1994); State v. Compton

, 104 N.M. 683, 687, 726 P.2d 837, 841 (1986); Sanchez v. State , 103 N.M. 25, 27-28, 702

P.2d 345, 347-48 (1985); State v. Skinner , 2011-NMCA-070, ¶¶ 22-26, 150 N.M. 26, 256

P.3d 969; State v. Tom , 2010-NMCA-062, ¶¶ 17-20, 148 N.M. 348, 236 P.3d 660; State v.

McClennen , 2008-NMCA-130, ¶¶ 13-15, 144 N.M. 878, 192 P.3d 1255; State v. Morales

, 2002-NMCA-052, ¶¶ 24-25, 132 N.M. 146, 45 P.3d 406; State v. Barragan , 2001-NMCA086, ¶¶ 19-20, 131 N.M. 281, 34 P.3d 1157; State v. Glasgow , 2000-NMCA-076, ¶ 20, 129

N.M. 480, 10 P.3d 159; State v. Gutierrez ,1998-NMCA-172, ¶¶ 11, 13-14, 126 N.M. 366,

969 P.2d 970; State v. Elinski , 1997-NMCA-117, ¶¶ 25-27, 124 N.M. 261, 948 P.2d 1209;

State v. Tave , 1996-NMCA-056, ¶¶ 17-18, 122 N.M. 29, 919 P.2d 1094; State v. Aragon

, 116 N.M. 291, 295-96, 861 P.2d 972, 976-77 (Ct. App. 1993); State v. Sansom , 112 N.M.

679, 683, 818 P.2d 880, 884 (Ct. App. 1991); State v. Pacheco , 110 N.M. 599, 603, 798 P.2d

200, 204 (Ct. App. 1990); State v. Lara , 109 N.M. 294, 298, 784 P.2d 1037, 1041 (Ct. App.

1989); State v. Roybal , 107 N.M. 309, 312-13, 756 P.2d 1204, 1207-08 (Ct. App. 1988);

State v. Gonzales , 105 N.M. 238, 242, 731 P.2d 381, 385 (Ct. App. 1986); State v. Dobbs

, 100 N.M. 60, 68, 665 P.2d 1151, 1159 (Ct. App. 1983).



### 14 of harmless error. 6

{38} In sum, we no longer recognize the Moore three-part test or any of the factors thereof

as accurate statements of law. To explain our renunciation of M oore

, we examine the factors

individually, beginning with the first factor: whether there is “substantial evidence to

support the conviction without reference to the improperly admitted evidence.” Barr , 2009-

NMSC-024, ¶ 56

. This factor, through its use of the phrase “substantial evidence,” runs the

risk of allowing the more deferential “sufficiency of the evidence” standard of appellate

review to seep into a cour t’s harmless error analysis. See, e.g.

, State v. Aragon , 2010-

NMSC-008, ¶ 36, 147 N.M. 474, 225 P.3d 1280 (focusi ng on the sufficiency of the evidence

that supports a conviction to conclude an error was harmless); Tom , 2010-NMCA-062, ¶ 19

( relying on the “sufficiency of the evidence” standard when applying the first Moore factor).

{39} Where a defendant appeals from a conviction on the ground that it was not supported

by sufficient evidence, the appellate court must determine “whether, after reviewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

### 15 found the essential elements of the crime beyond a reasonable doubt.” A lvarez-Lopez

, 2004-

NMSC-030, ¶ 30 (internal quotation marks and citation omitted ). In conducting such a

review, the court “indulg[es] all reasonable inferences and resolv[es] all conflicts in the

evidence in favor of the verdict.” State v. Duran , 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140

P.3d 515 (internal quotation marks and citation omitted). By contrast, “[t]he jury verdict

should not automatically be afforded deference when a constitutional error has infected the

trial,” a nd so in harmless error review the verdict is entitled to deference “ o nly when the

State has established beyond a reasonable doubt that the jury verdict was not tainted by the

constitutional error.” Alvarez-Lopez , 2004-NMSC-030, ¶ 30.

{40} The second Moore factor directs courts to consider whether the prosecution presented

“such a disproportionate volume of permissibl e evidence that, in comparison, the amount of

improper evidence will appear so minuscule th at it could not have contributed to the

conviction.” Barr , 2009-NMSC-024, ¶ 52 (quoting Moore , 94 N.M. at 504, 612 P.2d at

1315). The first two factors are closely linked a nd invite the same type of potential misuse:

that an error may be deemed harmless simply because of the sheer volume of other evidence

supporting conviction. There are “some circumstances where . . . the evidence of a

defendant’s guilt is sufficient even in the absen ce of the trial court’s error,” that still require

the reviewing court “to reverse the conviction if the jury’s verdict appears to have been

tainted by error.” Macias , 2009-NMSC-028, ¶ 38; see also State v. Johnson

, 2004-NMSC029, ¶ 11, 136 N.M. 348, 98 P.3d 998 (“[C]onstitutional error must not be deemed harmless

solely based on overwhelming evidence of the defe n dant’s guilt.”). There are several

reasons why it is improper for “overwhelming evidence” of a defendant’s guilt to serve as

the main determinant of whether an error was harmless. First, such an approach moves the

inquiry away from its a p propriate “central focus,” which is “whether there is a reasonable

p ossibility” or probability, depending on whet her the error offends the defendant’s

constitutional rights, th at “the erroneous evidence might ha ve affected the jury’s verdict.”

Id. In addition, excessive reliance on “overwhelming evidence” of guilt also ignores the

principle that “even if conviction appears inevitable, there is a poin t at which an error

becomes too grea t to condone as a matter of cons titutional integrity and prosecutorial

deterrence.” A lvarez-Lopez

, 2004-NMSC-030, ¶ 31 (internal quotation marks and citation

omitted); see also Moore

, 94 N.M. at 505, 612 P.2d at 1316 (Sosa, C.J., dissenting)

(“Though eviden ce of guilt was great in this case, I believe that prosecutors should

nonetheless conform to legal standards in obtaining convictions. . . . Convictions should not

be obtained at any cost, but should be obtained in accordance with the rules of evidence.”).

In addition, when an appellate court gives too much consid eration to “overwhelming

evidence,” it risks simply weighing the evidence in favor of and against guilt, which “would

usurp the role of the jury.” S tate v. Stephen F.

, 2008-NMSC-037, ¶ 41, 144 N.M. 360, 188

P.3d 84; see also Macias

, 2009-NMSC-028, ¶ 38 (“[I]t is not the role of the appellate court

to re-weigh the evidence to decide a defendant’s guilt or innocence.”).

{41} The third Moore factor queries whether there is “substantial conflicting evidence to

discredit the State’s testimony.” Barr , 2009-NMSC-024, ¶ 56. In addition to the same

### 16 potential for confusion posed by the term “substantial” evidence, discussed above, the third

factor runs the risk of inappropriately shifting the burden o f proof from the state to the

defendant. S ee, e.g.

, State v. Ross

, 122 N.M. 15, 27, 919 P.2d 1080, 1092 (1996) (holding

error to be harmless in part because defendant “failed to offer substantial conflicting

evidence to discredit the State’s testimony” (internal quotation marks and citation omitted));

State v. McClennen

, 2008-NMCA-130, ¶ 15, 144 N.M. 878, 192 P.3d 1255 (holding error

to be harmless in part because the defendant did not testify and “[t]hus, there is not

substantial evidence in the record to discre dit the State’s evidence”). The burden of proof

in the underlying criminal proceeding w ill always rest with the State. See UJI 14-5060

NMRA (“The burden is always on the stat e to prove guilt beyond a reasonable doubt.”); see

also Moeller v. Weber , 689 N.W.2d 1, 16 (S.D. 2 004) (the defense “cannot be required to

present any evidence whatever.”). Similarly, once a constitutional error has been established

it is the State’s burden to demonstrate that the error is harmless. See Gutierrez , 2007-

NMSC-033, ¶ 18. Because the third Moore factor appears to reduce that burden, it cannot

be a proper component of our harmless error analysis. 94 N.M. at 504, 612 P.2d at 1315.

{42} Considering the Moore test as a whole, perhaps most significant and most

problematic is what it omits: the central inquiry of whether an error was likely to have

affected the jury’s verdict. By limiting their harmless error review to the weight or volume

of evidence in favor of guilt, courts avoid inquiring into the nature and likely impact of the

very error at issue. S ee United States v. Coughlin

, 821 F. Supp. 2d 8, 2011 WL 5301602 at

*5 (D.D.C. 2011) (“The inquiry is ‘whether the error itself had substantial influence.”

(quoting Kotteakos v. United States , 328 U.S. 750, 765 (1946))). In sum, even if applied

more flexibly as a “useful framework” rather than as a rigid test, Barr

, 2009-NMSC-024, ¶

55, the Moore factors misstate the law and distort the proper focus of harmless error review

from “whether the verdict was impacted by the error” to “whether, in spite of the error, the

right result was reached.” Barr , 2009-NMSC-024, ¶ 57.

{43} We now turn to what relevant considerations reviewing courts may use in place of

the Moore factors when assessing the reasonable possibility (or reasonable probability) that

impermissible evidence contributed to a defendant’s conviction. To be sure, there are “no

scientific answers to the ultimate question of whether the trier of fact was influenced by an

error,” as the reviewing court cannot conclusively determine “what went on in the mind of

another or of twelve others.” Roger J. Traynor, T he Riddle of Harmless Error 23 (Ohio State

Univ. Press 1970). But in reaching a judgment as to the likely effect of the error, courts

should evaluate all of the circumstances surrounding the error. This requires an examination

of the error itself, which depending upon the f acts of the particular case could include an

examination of the source of the error and the emphasis placed upon the error. Of course,

evidence of a defendant’s guilt separate from the error may often be relevant, even

necessary, for a court to consider, since it will provide con t ext for understanding how the

error arose and what role it may have played in the trial proceedings; but such evidence, as

discussed above, can never be the singular focus of the harmless error analys is as it was

under Moore

. As we have previously explained, when reviewing an error’s role in the trial,7 We explained in Johnson that “[c]orroborative evidence tends to corroborate or

to confirm, whereas cumulative evidence merely augments or tends to establish a point

already proved by other evidence.” 2004-NMSC-029, ¶ 39 (internal quotation marks and

citation omitted).



### 17 courts may, depending upon the circumstances of the cases before t hem, examine “ t he

importance of the [erroneously admitted e vidence] in the prosecution’s case,” as well as

“whether the [error] was cumulative” or instead introduced new facts. J ohnson

, 2004-

NMSC-029, ¶ 11 (quoting Delaware v. Van Arsdall

, 475 U.S. 673 , 684 (1986)). These

considerations, we are careful to note, are not a substitute “test” provided in place of Moore ;

for instance, “improperly admitted evidence that is cumulative 7 is not ipso facto harmless

beyond a reasonable doubt.” Johnson , 2004-NMSC-029, ¶ 37.

{44} Reviewing courts must keep in mind that harmless error review necessarily requires

a case-by-case analysis. See Sullivan v. Louisiana , 508 U.S.275, 279 (1993) (“The inquiry

. . . [is] whether the guilty verdict actually rendered in this trial was surely unattributable to

the error.”); see also Macias , 2009-NMSC-028, ¶ 37 (“[H]armless error analysis requires an

appellate court to review the effect of an e rror in the unique context of the specific evidence

presented at a given trial.”). When assessi ng two cases that are factually analogous, with

similar errors, the reviewing court thus may find the impact of the error harmful in one case

and harmless in the other. I n addition, because an error may be prejudicial with respect to

one conviction, but harmless with respect to another, courts must separately assess the effect

the error may have had on each of the defendant’s convictions. See Johnson , 2004-NMSC029, ¶ 31.

C. Admission of the Romeros’ Convictions Was Not Harmless

{45} Having c larified how courts are to analyze harmless error, we return to a

consideration of whether the erroneous admission of the Romeros’ convictions at

Defendant’s trial was harmless. As we have discussed, the district court effectively admitted

evidence of the convictions in violation of De fendant’s right of confrontation under the Sixth

Amendment. The error, therefore, was a c onstitutional error, which is harmless only if we

conclude that there is no reasonable possibility the error contributed to the jury’s decision

to convict Defendant. See Barr , 2009-NMSC-024, ¶ 53; see also Zamarripa

, 2009-NMSC001, ¶ 52 (“When a statement is admitted in violation of the Confrontation Clause, we next

inquire into whether the error was harmless,” and “[t]o preclude reversal, the error must be

harmless beyond a reasonable doubt.”).

{46} Here, the State fails to meet its burden to show that there was no reasonable

possibility that admission of the Romeros’ convictions affected the jury’s verdict. First, we

note that the State int roduced considerable evidence in support of Defendant’s conviction

for first-degree murder, kidnapping, and the conspiracy charges, althoug h most of the

evidence directly linking Defendant to those crimes came from a single witness, Michelle

### 18 Martinez. According to her testimony, Defendant c onferred with Ivan Romero about “what

to do” with Victim, and later initiated a similar discussion with Elias Romero, Jaime

Romero, and Martinez herself, after telling the others that he had Victim tied up at Richard

Anaya’s house. During that later discussion at Elia s Romero’s house, Defendant warned the

others against letting Victim go free. Def endant traveled with Martinez and Luis Trujillo

to Anaya’s house where Victim was bein g held, and once there assisted Trujillo and

Lawrence Gallegos in moving Victim after he was injected with heroin. Defendant helped

c arry the then-unconscious Victim to his own car, drove to the church parking lot where

Victim’s car would be left, dis cussed with Gallegos the plan to burn Victim’s car with

Victim inside, and proceeded to enact that plan by using a cherry bomb to set Victim’s car

ablaze.

{47} Martinez’s testimony strongly implicated Defendant in the kidnapping and murder

of Victim, as well as in the conspiracy to commit those acts. Martinez, however, was herself

an active co-conspirator in the crimes committed against Victim, and therefore was subject

to extensive cross-examination on her credibility and motives. In response to defense

counsel’s questioning, Martinez testified that sh e initially told Detective Wentz that

Defendant h ad injected Victim with heroin, later changed her story to indicate that Elias

Romero had done so, and only after four inter views with investigators admitted her own

involvement in Victi m’s killing. Martinez admitted lying about other material facts,

including the whereabouts of the syringe used to inject Victim with heroin. Defense counsel

further attempted to impeach Martinez’s credibility by asking her if she “cut a deal with the

State” in exchange for her testimony, and by getting Martinez to acknowledge that she faced

a sentence of 108 years for various charges, including the murder of Victim, but as a result

o f her plea agreement was sentenced to a maximum of only fifteen years. In addition,

defense counsel elicited testimony from Marti nez that she faced additional charges for

unrelated criminal acts, including forgery, larceny and credit card fraud.

{48} In contrast to Martinez, whom defense counsel characterized in his closing argument

as telling “lie, after lie, after lie,” as being a long-time resident of the “drug world,” and as

being driven by a desire to reduce her own sen tence by cooperating with the prosecution,

Jaime Romero and Ivan Romero could not be questioned about their credibility or motives

because they did not testify. Martinez’s plea deal, criminal history, and prior false

statements to law enforcement all could have provi ded the jury with legitimate reasons to

doubt her testimony. See State v. Martinez , 1996-NMCA-109, ¶ 17, 122 N.M. 476, 927

P.2d 31 (“A jury, when judgi ng a witness’s credibility, should be able to take into

consideration whether a witness hoped to curry favor by cooperating with the prosecution.”

(emphasis omitted)). In this light, the Romero s’ convictions provided a potentially important

and unimpeachable piece of evidence that a criminal conspiracy to kill Victim had occurred,

and that such conspiracy included two men who were linked with Defendan t through the

testimony of Martinez and several other witnesses.

{49} Although the error here–the district court’s instruction to the jurors that they “must

### 19 accept as true” the fact that “Jaime and Ivan Romero had been convicted of conspiracy to

commit second-degree murder”–was only uttered once, it cannot be characterized as a stray

remark. Trial testimony associated Ivan Romero with Defendant in myriad ways. He sold

drugs to Victim, a close friend of Defendant; was reported to have disliked Victim;

approached Defendant and Victim in t he sports bar parking lot a nd attacked Victim in the

evening before Victim’s death; and spoke with Defendant about “what to do” with Victim.

In addition, on the night of Victim’s death several phone calls were mad e between Ivan

Romero’s cell phone and Anaya’s home phone, a fact that the prosecutor referenced in his

closing argument. Ivan Romero also was explicitly identified as having been “involved” in

Victim’s death. Perhaps most vividly, Defendant i nvoked Ivan Romero as the reason why

Victim was being injected with an apparently lethal dose o f heroin when Defendant told

Victim that “he shouldn’t have fucked with Diablo,” a nickname for Ivan Romero.

{50} Much less trial evidence connected Jaime Romero to Defendant, although Martinez

testified that Jaime Romero told Defendant a nd others that his (Jaime Romero’s) “soldiers”

could “take care of” Victim, and in his closing argument the prosecutor suggested that

Defendant had entered into a conspiracy with Jaime Romero. The fact that the Romeros

were not only charged but convicted of conspiracy to murd er Victim strengthened the State’s

case that a conspiracy existed and that De fendant was a part of that conspiracy. See Urioste

, 94 N.M. at 768-69, 617 P.2d at 157-58 (quoting th e State’s argument that a co-defendant’s

conviction for conspiracy was relevant to prove that a conspiracy existed and that the

defendant was part of the conspiracy).

{51} Here, the Romeros’ convictions were brought to the jury’s attention by the district

court rather than by the prosecutor or witness testimony. No curative instruction could be

given, and the improperly admitted evidence bore the imprimatur of judicial authority. S ee

generally State v. Caputo

, 94 N.M. 190, 192, 608 P.2d 166, 168 (1980) (“[B]ecause of the

judge’s position and the respect and confidence reposed in him (or her) and in his learning

and assumed impartiality, a jury is likely to attach undue weight to any participation by the

judge in the conduct of the trial.”). A lthough the district court’s instruction to the jury was

somewhat contradictory and reflected its attempt to reach a compromise between the State’s

and Defendant’s positions regarding admission of the convictions, the district court invited

the jury to utilize the convictions to bolster the State’s case if they chose to do so.

{52} In addition, the district court’s statement about the Romeros’ convictions was the last

piece of information that the jury received befo re formal instructions and closing arguments,

magnifying the risk that the error would factor into the jury’s assessment of Defendant’s

guilt. S ee g enerally State v. Sosa , 2009-NMSC-056, ¶ 24, 147 N.M. 351, 223 P.3d 348

(discussing questionable com ments made during closing arguments and warning of the

increased potential for prejudice due to the proximity to the end of trial); Caputo

, 94 N.M.

at 192, 608 P.2d at 168 (“[T]he information elicited [by the trial court] was the last evidence

of the trial heard by the jury and its significance in all probability was pondered during the

jury’s deliberations.”).

### 20 {53} Fina lly, although Jaime Romero and Ivan Romero were convicted only of conspiracy

to commit murder, while Defendant was convicted of the additional crimes of first-degree

murder and kidnapping, there is at least a reasonable possibility that admission of the

Romeros’ convictions affected the verdict in its entirety. The dissent is correct that firstdegree murder and kidnapping are separate offenses from conspiracy–and therefore require

proof of different elements for conviction. The evidence concerning the conspiracy and the

substantive crimes, however, was significantly intertwined. The jury heard testimony about

the altercation between I van Romero and Victim that apparently set the entire criminal

venture in motion, Defendant’s statement implying that Victim would die because he had

c rossed Ivan Romero, and suggestions that both Ivan Romero and Jaime Romero made to

Defendant about “what to do ” with Victim. Any possible ambiguity about what Ivan

Romero or Jaime Romero may have meant when they discussed “what to do” with Victim

would have been dispelled by Martinez’s testimony that Elias Romero then told her “to go

and do it,” which as she elaborated meant to “i nject [Victim] and make it look like he

overdosed” in order to kill him. The jury also heard testimony that while Victim was tied

up at Anaya’s house, someone (whom the prosecu tor implied, and the jury certainly could

have inferred, was Defendant) placed multiple calls from Anaya’s home phone to Ivan

Romero’s cell phone. According to Martinez, after setting Victim’s car on fire Defendant

went to Ivan Romero’s home and watched smoke rising from the burning car. Defendant’s

main concern, after watching Victim’s car burn, was that he had “disrespected Ivan by taking

[Victim] to the bar in the first place.”

{54} All of the substantive crimes charged against Defendant were based on an accessory

theory of liability. A defendant may be convicted of a crime as an accessory if that

defendant “procures, counsels, aids or abets in its commission and although he did not

directly commit the crime and although the principal who directly committed such crime has

not been prosecuted or convicted.” NMSA 1978, § 30-1-13 (1972); s ee also State v.

Carrasco

, 1997-NMSC-047, ¶ 6, 124 N.M. 64, 946 P.2d 1075 (“A person who aids or abets

in the commission of a crime is equally culpable as the principal.”). Here, the prosecutor

emphasized this point in his closing argument, reminding the jury that “the law says that if

you help, encourage or cause a crime to be committed, you can be just as guilty as the one

who did the crime. Just as guilty. Why? I think it’s obvious. Because if it weren’t for those

acts of encouragement, of help, of assistance some of those crimes wouldn’t even be

committed.” The district court then gave the jury the following instruction regarding

accessory liability:

The defendant may be found guilty of a crime even though he himself

did not do the acts constituting the crime, if the state proves to your

satisfaction beyond a reasonable doubt that:

1. The defendant intended that the crime be committed;

2. The crime was committed;

3. The accused helped, encouraged or caused the crime to be

committed.

### 21 Regarding conspiracy, the district court instructed the jury that to find Defendant guilty of

the conspiracy crimes, the State must prove beyond a reasonable doubt that “[t]he defendant

and another person by words or acts agreed to commit [the specified crime],” and that “[t]he

defendant and the other person intended to commit [the specified crime].”

{55} Accessory liability and conspiracy “are distinct and separate concepts,” State v. Baca

, 1997-NMSC-059, ¶ 46, 124 N.M. 333, 950 P.2d 776 (cita tion omitted), with the “gist” of

conspiracy being “an agreement between two or more persons to commit a felony.”

Gallegos , 2011-NMSC-027, ¶ 25 (quoting State v. Deaton

, 74 N.M. 87, 89, 390 P.2d 966,

967 (1964)). It is apparent, however, that much of Martinez’s trial testimony could be used

to support both the conspiracy and the substantive charges against Defendant. For example,

Martinez’s statement that Ivan Romero and Defendant discussed “what to do” with Victim

could provide evidence both that Defendant “helped” or “encouraged” the kidnapping and

murder of Victim (accessory liability), as well as that Defendant “by words or acts agreed

to commit” and “intended to commit” those crimes (con spiracy liability). The prosecutor

acknowledged this substantial evidentiary overlap during his closing argument, asking the

jury to apply the “same analysis” from the substantive crimes to the parallel c o nspiracy

charges and even noting that the conspiracy char g es involve the “same elements” as their

substantive count erparts. Under these circumstances, it would be unreasonable to simply

assume that the jurors separated the concepts of conspiracy and accessory liability, and

considered the Romeros’ convictions when deliberating on the conspiracy charges but not

when deliberating on the charges of carrying out the object of that same conspiracy.

{56} In the dissent ’s view, Defendant’s convictions for first-degree murder and

kidnapping should be affirmed because “direct” evidence in the form of Martinez’s

testimony “convinced the jury o f Defendant’s guilt, wholly apart from the misbegotten

evidence of the conspiracy pleas of others.” But the fact that other evidence apart from the

error supports conviction, even if that evidence is overwhelming, cannot be the determinant

of whether the error is harmless. S ee Johnson

, 2004-NMSC-029, ¶ 11 (“[C]onstitutional

error must not be deemed harmless solely based on overwhelmi ng evidence of the

d efendant’s guilt.”). Furthermore, the jury here had at least some serious doubts about

Martinez’s credibility , because it acquitted Defendant of the aggravated arson and

conspiracy to commit aggravated arson charges, which like the first-degree murder and

kidnapping charges (and their conspiracy counterparts) were supported almost exclusively

by Martinez’s testimony.

{57} Evaluating harmless error, as our discussion indicates, can be a complex and difficult

process. In the final analysis, determining whet her an error was harmless requires reviewing

the error itself and its role in the trial proceed ings, and in light of those facts, making an

educated inference about how that error was received by the jury. This process comes down

to a judgment call based on experience and analysis, and as with many human judgments,

reasonable mind s may often differ. Our review and consideration of the evidence in this

case persuades us that there is a reasonable possibility that admitting the Romeros’

convictions contributed to Defenda nt’s convictions. The district court’s error, therefore, was

### 22 not harmless.

III. CONCLUSION

{58} We vacate Defendant’s convictions and remand the case to the district court for

proceedings consistent with this Opinion.

{59} IT IS SO ORDERED.

____________________________________ PATRICIO M. SERNA, Justice

WE CONCUR:

____________________________________ CHARLES W. DANIELS, Chief Justice

____________________________________ PETRA JIMENEZ MAES, Justice

____________________________________ EDWARD L. CHÁVEZ, Justice

RICHARD C. BOSSON, Justice ( concurring in part and dissenting in part)

BOSSON, Justice (concurring in part and dissenting in part).

{60} I concur in the majority’s analysis of the trial court’s error. The majority’s

revitalized analysis of harmless error is co mmendable, leading hopefully, to a clearer, more

consistent application of the relevant standards for deciding that important question. It is the

result in this particular case, however, with wh ich I cannot agree. More specifically, I am not

persuaded to reverse Defendant’s convictions for first-degree murder and kidnapping. I do

agree that we must reverse the convictions for conspiracy.

{61} It is relatively easy to conclude that the conspiracy offenses cannot stand. If A is

accused of conspiring with B and C, and the jury hears evidence that the latter two have

already been found guilty of that same conspi racy, well then, the prosecution is more than

half way home without even firing a shot. Common sense and common experience teach

that the state cannot carry its burden on the question of harmless error. No one could

conclude that there is no reasonable possibility of any effect on the jury from such erroneous

evidence with respect to the convictions for conspiracy.

{62} I cannot reach the same conclusion, however, regarding Defendant’s convictions for

first-degree murder and kidnapping. Defendant was convicted of these crimes, either as a

principal or an accessory, based upon direct, eyewitness evidence demonstrating his

### 23 presence at and active participation in most of the horrifying even ts of that evening,

including murder and kidnapping. This eyewitn ess testimony was, I concede, subjected to

forceful cross-examination and impeachment on a variety of grounds. But in my mind that

eyewitness convinced the jury of Defendant’s guilt, wholly apart from the misbegotten

evidence of the conspiracy pleas of others. I cannot join in a conclusion that the jury may

have reached a decision based not upon dir ect evidence of guilt, but upon evidence that

someone else was guilty of a different, albeit related, crime.

{63} With respect, therefore, I would affirm the convictions for murder and kidnapping

while I join in reversing the convictions for conspiracy.

____________________________________ RICHARD C. BOSSON, Justice

Topic Index for State v. Tollardo , Docket No. 31,241

AE APPEAL AND ERROR

AE-AG Appeal and Error, General

AE-HE Harmless Error

AE-PJ Prejudicial Error

CT CONSTITUTIONAL LAW

CT-CT Confrontation

CT-FT Fair Trial

CT-RF Right to Confrontation

CL CRIMINAL LAW

CL-AC Accessory

CL-CS Conspiracy

CA CRIMINAL PROCEDURE

CA-BP Burden of Proof

CA-FT Fair Trial

CA-GP Guilty Plea

CA-PJ Prejudice

CA-RT Right to Confrontation

CA-SF Standard of Proof

EV EVIDENCE

EV-AE Admissibility of Evidence

EV-CR Credibility of Witness

EV-IM Impeachment

JR JURIES

JR-JG Juries, General