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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-035

Filing Date: August 2, 2011 

Docket No. 30,257

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

RAMON LOPEZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY

Matthew G. Reynolds, District Judge

Hugh W. Dangler, Chief Public Defender

Nina Lalevic, Assistant Appellate Defender

Santa Fe, NM

for Appellant

Gary K. King, Attorney General

Andrea Sassa, Assistant Attorney General

Santa Fe, NM

for Appellee

OPINION

SERNA, Justice.

{1} Defendant Ramon Lopez was convicted by a jury of multiple crimes, including firstdegree felony murder, contrary to NMSA 1978, Section 30-2-1(A)(2) (1994), with firstdegree criminal sexual penetration (CSP), contrary to NMSA 1978, Section 30-9-11(C)(2)

(1995) (amended 2009), as the underlying felony. Defendant invokes this Court’s appellate

jurisdiction over sentences for life imprisonment, contained in Article VI, Section 2 of the

New Mexico Constitution and Rule 12-102(A)(1) NMRA. We address two of the issues

Defendant has raised on appeal: whether Defendant’s right to confront witnesses who
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testified against him was violated by the admission of the preliminary hearing testimony of

an unavailable witness, and whether the district court erred in allowing the State to impeach

its own witness with otherwise inadmissible hearsay. We conclude that the district court

committed reversible error by allowing the hearsay to be admitted under the auspices of the

State’s impeachment of the preliminary hearing testimony of the unavailable witness.

{2} Crystal Calderella (Victim) last was seen alive the night of April 12, 2001, with

Defendant, Greg Romero, and others who were consuming drugs and alcohol at Victim’s

home in Socorro, New Mexico. On April 15, 2001, Victim’s body was discovered in her

home, her clothes partially removed. There were bruises and contusions on Victim’s neck

and lower legs, and blood on the back of Victim’s head. Semen, later shown to be

Defendant’s, was found in Victim’s vagina. Defendant was charged with Victim’s murder

after being arrested on an unrelated charge.

{3} At Defendant’s preliminary hearing, Romero testified under oath about the events

that occurred during the evening of Victim’s death. Before trial, the State informed the

district court that it was unable to locate Romero, who had absconded from probation in

California, and explained the efforts that had been undertaken to locate him. The district

court permitted the State to introduce Romero’s preliminary hearing testimony via tape

under the hearsay exception for unavailable witnesses contained in Rule 11-804(A)(5) and

(B)(1) NMRA. Defendant argues that the admission of Romero’s preliminary hearing

testimony violated the Confrontation Clauses contained in the Sixth Amendment to the

United States Constitution and Article II, Section 14 of the New Mexico Constitution.

 

{4} “We first determine whether the preliminary hearing testimony was properly

admitted under the Rules of Evidence.” State v. Henderson, 2006-NMCA-059, ¶ 8, 139

N.M. 595, 136 P.3d 1005. Only if the preliminary hearing testimony was properly admitted

do we address the Confrontation Clause issue. Id. Defendant argues that the preliminary

hearing testimony was improperly admitted because Defendant did not have an opportunity

for a meaningful cross-examination of Romero. We review the admission of evidence

pursuant to an exception or an exclusion to the hearsay rule under an abuse of discretion

standard. State v. McClaugherty, 2003-NMSC-006, ¶ 17, 133 N.M. 459, 64 P.3d 486. 

{5} “A hearsay statement consists of an out-of-court statement offered to prove the truth

of the matter asserted,” and is inadmissible as substantive evidence unless it falls within an

exclusion or exception to the hearsay rule. Id. Rule 11-804(A)(5) defines as unavailable a

witness who “is absent from the hearing and the proponent of a statement has been unable

to procure the declarant’s attendance . . . by process or other reasonable means.” A

statement of an unavailable witness is admissible if the unavailable witness’s “[t]estimony

[was] given as a witness at another hearing of the same or a different proceeding . . . [and]

if the party against whom the testimony is now offered . . . had an opportunity and similar

motive to develop the testimony by direct, cross or redirect examination.” Rule 11-

804(B)(1); see also State v. Gonzales, 113 N.M. 221, 226, 824 P.2d 1023, 1028 (1992)

(stating that the motives for cross-examination at the preliminary hearing and the trial must
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be similar, but need not be identical).

{6} Whether a party had an opportunity and similar motive to develop testimony must

be determined on a case-by-case basis. Gonzales addressed a situation where the defendant

had an opportunity to cross-examine a witness at a preliminary hearing, but at trial, when the

witness was unavailable to testify, the defendant’s theory of his defense had changed from

self-defense to identification. 113 N.M. at 225-26, 824 P.2d at 1027-28. We noted that the

Court of Appeals had set forth a “per se rule that absent extraordinary circumstances

preliminary hearing testimony may be admitted at trial if the witness is unavailable because

the motive to cross-examine is similar.” Id. at 226, 824 P.2d at 1028 (citing State v.

Massengill, 99 N.M. 283, 285, 657 P.2d 139, 141 (Ct. App. 1983)). Despite the change in

the defendant’s theory, Gonzales concluded that because the defendant “was given the

opportunity to cross-examine the witness at the preliminary hearing, [the] defendant was not

denied the right to confront the witness against him.” Id. at 227, 824 P.2d at 1029.

{7} In Henderson, the preliminary hearing testimony of two unavailable witnesses was

admitted at trial. 2006-NMCA-059, ¶ 7. “[T]he trial court acknowledged that [the

d]efendant could not have cross-examined [the unavailable witnesses] at the preliminary

hearing on all issues that were relevant to his defense because all the issues were not known

at that time.” Id. The Court of Appeals nevertheless concluded that the defendant had an

adequate opportunity for cross-examination because he was able to cross-examine the

witness “about whether any crime was committed and whether [the d]efendant was

involved.” Id. ¶ 12. The defendant, therefore, “had an ‘opportunity and similar motive’ to

cross-examine [the witness] at the preliminary hearing as he would have at trial.” Id. 

{8} In this case, the purpose of the preliminary hearing was to determine whether “there

[was] probable cause to believe that the defendant committed an offense.” Rule 5-302(C)

NMRA; see State ex rel. Whitehead v. Vescovi-Dial, 1997-NMCA-126, ¶ 5, 124 N.M. 375,

950 P.2d 818 (“The primary purpose of the preliminary examination is to provide an

independent evaluation of whether the state has met its burden of demonstrating probable

cause.”). At the preliminary hearing, Defendant questioned Romero about whether Romero

witnessed Defendant engage in sexual intercourse with Victim; whether Defendant assaulted

Victim, or removed Victim’s clothes; and whether Romero witnessed anything “unusual”

happen between Victim and Defendant that night. At the preliminary hearing, Defendant

argued that there was insufficient evidence to establish probable cause that Defendant

committed a crime, and that the case should not be bound over for trial; his motive for crossexamining Romero, therefore, was to show that Defendant did not rape and murder Victim.

{9} Defendant’s motive at trial likewise was to demonstrate that he was not guilty of

raping and murdering Victim. During both proceedings, Defendant’s motive was to discredit

the State’s case and to argue that the evidence did not establish his guilt. We conclude,

therefore, that because Defendant had an opportunity and similar motive to cross-examine

Romero at the preliminary hearing as he did at trial, the district court did not abuse its

discretion in admitting Romero’s preliminary hearing testimony at trial.
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 We do not reach Defendant’s confrontation rights under Article II, Section 14 of the New

Mexico Constitution as that argument was not preserved. See State v. Leyva, 2011-NMSC009, ¶ 49, 149 N.M. 435, 250 P.3d 861 (stating that when a state constitutional provision has

never been interpreted as providing greater protections than its federal counterpart, the

proponent must make the arguments necessary for the court to conduct an interstitial

analysis). 

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{10} Having determined that the Rules of Evidence were not violated by the admission of

Romero’s preliminary hearing testimony, we turn to the constitutional question. Claimed

violations of the Confrontation Clause are questions of law which we review de novo. Id.

¶ 6. 

{11} Under the Sixth Amendment to the United States Constitution, all criminal

defendants “shall enjoy the right . . . to be confronted with the witnesses against him.”

Testimonial statements satisfying the Rules of Evidence do not necessarily satisfy the

requirements of the Confrontation Clause. Crawford v. Washington, 541 U.S. 36, 50-51, 68

(2004) (“Leaving the regulation of out-of-court statements to the law of evidence would

render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial

practices.”). When admitting testimonial statements, the Confrontation Clause requires that

the accused have a prior opportunity for cross-examination. Id.; accord United States v.

Aldridge, 413 F.3d 829, 836 (8th Cir. 2005) (Bye, J., concurring in part and dissenting in

part) (“The main and essential purpose of confrontation is to provide a meaningful

opportunity for the cross-examination of the adverse witness.”). Once a defendant has tested

the reliability of an unavailable witness’s testimony against him in the “crucible of crossexamination,” the demands of the Confrontation Clause have been met. Crawford, 541 U.S.

at 61, 68. When a witness testifies under oath at a preliminary hearing, admission of that

preliminary hearing testimony does not violate the Confrontation Clause if: “(1) the witness

is unavailable; and (2) the defendant had a prior opportunity to cross-examine the statement

that is now being offered into evidence against him.” Henderson, 2006-NMCA-059, ¶ 16

(emphasis omitted). 

{12} Defendant had an opportunity to cross-examine Romero, and actually did crossexamine him, on the “statement that is now being offered into evidence against him.” Id.

(emphasis omitted). At both the preliminary hearing and at trial, Defendant was facing the

same charges, was represented by the same defense counsel, and had the same motive to

cross-examine Romero. See id. ¶ 19. We conclude that the opportunity to cross-examine

Romero at the preliminary hearing satisfied the demands of the Confrontation Clause of the

Sixth Amendment.1

 The introduction of Romero’s testimony at the preliminary hearing,

therefore, did not run afoul of the Rules of Evidence or the Sixth Amendment.

{13} Defendant next argues that the district court erred in permitting the State to impeach

Romero’s preliminary hearing testimony with a prior inconsistent statement. In his
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preliminary hearing testimony, Romero denied that he told an acquaintance, Barbara Olguin,

that he saw Defendant choke and rape Victim. After Romero’s preliminary hearing

testimony was played for the jury, the State was permitted to call Olguin to impeach

Romero’s statement. Before Olguin testified, the district court gave a limiting instruction

to the jury, stating that her testimony was to be used solely for the purpose of impeachment.

Olguin testified that a few weeks after Victim’s death, Romero told her that he saw a

physical altercation between Defendant and Victim on the night Victim died and Victim hit

her head on a table edge and was knocked unconscious. Olguin testified that Romero said

he saw Defendant crawl on top of Victim, hold her by the mouth, choke her, and rape her.

{14} Admission of a prior inconsistent statement is within “the sound discretion of the trial

court . . . and will not be reversed absent an abuse of that discretion.” Davis, 97 N.M. at 133,

637 P.2d at 564. A trial court abuses its discretion when a “ruling is clearly against the logic

and effect of the facts and circumstances of the case,” such that it can be characterized “as

clearly untenable or not justified by reason.” State v. Dominguez, 2007-NMSC-060, ¶ 16,

142 N.M. 811, 171 P.3d 750, holding modified on other grounds by State v. Garcia, 2011-

NMSC-003, ¶¶ 17-18, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation

omitted). 

{15} If offered for the truth of the matter asserted, Olguin’s testimony of Romero’s out-ofcourt statements would constitute inadmissible hearsay. See McClaugherty, 2003-NMSC006, ¶ 17. Out-of-court statements are not hearsay, however, if they are offered to impeach

a witness on a material matter inconsistent with the testimony presented at trial. See Rule

11-613 NMRA; State v. Davis, 97 N.M. 130, 133, 637 P.2d 561, 564 (1981); State v.

Carlton, 82 N.M. 537, 542, 484 P.2d 757, 762 (Ct. App. 1971). “When impeaching with

prior inconsistent statements not made under oath, it is the fact of the inconsistency that is

admissible, not the substantive truth or falsity of the prior statement.” State v. Macias, 2009-

NMSC-028, ¶ 20, 146 N.M. 378, 210 P.3d 804. The declarant of a hearsay statement

admitted into evidence may be attacked for lack of credibility in the same manner as if the

declarant had testified as a witness. Rule 11-806 NMRA. 

{16} Rule 11-607 NMRA “allow[s] a party to attack the credibility of its own witnesses.”

Id. ¶ 21. Courts and commentators are in general agreement that a witness may not be called

and then impeached solely for the purpose of evading the rules of evidence. See United

States v. Logan, 121 F.3d 1172, 1174-75 (8th Cir. 1997) (“Courts must be watchful that

impeachment is not used as a subterfuge to place otherwise inadmissible hearsay before the

jury.” (internal quotation marks and citation omitted)); United States v. Webster, 734 F.2d

1191, 1192 (7th Cir. 1984) (“[I]t would be an abuse of the rule [permitting impeachment],

in a criminal case, for the prosecution to call a witness that it knew would not give it useful

evidence, just so it could introduce hearsay evidence against the defendant in the hope that

the jury would miss the subtle distinction between impeachment and substantive

evidence-or, if it didn't miss it, would ignore it.”); accord United States v. Morlang, 531 F.2d

183, 190 (4th Cir. 1975); State v. Hunt, 378 S.E.2d 754, 757 (N.C. 1989); 1 Kenneth S.
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Broun et al. eds., McCormick on Evidence § 39, at 168 (6th ed. 2006). Only if the primary

purpose of the proffered testimony is to provide evidence, and not as a back-door attempt

to introduce otherwise inadmissible hearsay under the auspices of impeachment, should a

court permit that evidence to be presented to the jury.

{17} This Court, in State v. Brown, stated that a party may not call a witness for the

primary purpose of impeaching a witness with a prior statement which otherwise would be

inadmissible hearsay. 1998-NMSC-037, ¶ 52, 126 N.M. 338, 969 P.2d 313. In Brown, we

used the Florida Supreme Court’s approach to determining whether a witness’s testimony

has a proper primary purpose, set forth in Morton v. State, 689 So.2d 259, 264 (Fla. 1997)

(abrogated in part by Rodriguez v. State, 753 So.2d 29, 47 (Fla. 2000)). 1998-NMSC-037,

¶¶ 50-53. The Morton approach scrutinizes the content of the witness’s testimony to

ascertain whether it contains evidence that is both favorable and unfavorable to the

proponent. Morton, 689 So.2d at 264. 

{18} Although this Court has not engaged in substantial analysis as to the meaning of

“favorable” and “unfavorable” in Morton, Florida’s courts have reviewed the analysis and

we look to their cases as instructive. See State v. Richards, 843 So.2d 962, 964-65 (Fla. Dist.

Ct. App. 2003) (holding that the state’s impeachment of its own witness was proper where

the witness’s favorable testimony “place[d] the defendant in proximity to . . . the victim

throughout the evening of the crime [and] supplie[d] a possible motive for the shooting.”);

Owens v. State, 817 So.2d 1006, 1008 (Fla. Dist. Ct. App. 2002) (finding impeachment of

the state’s own witness proper where the witness’s unfavorable testimony was materially

inconsistent with prior statements and directly contradicted the defendant’s guilt). These

cases indicate that the primary purpose of a witness’s testimony is characterized as favorable

when that testimony goes to a substantive matter in controversy, not simply whether it is

merely relevant. See State v. Varela, 1999-NMSC-045, ¶ 29, 128 N.M. 454, 993 P.2d 1280

(“If the prosecution elicits relevant, substantive testimony from [a] witness [it calls], [the

prosecution] may impeach its witness with prior inconsistent statements about the same

matter being testified to at trial.” (internal quotation marks and citation omitted)); James v.

State, 765 S0.2d 763, 765 (Fla. Dist. Ct. App. 2000). “If the witness’s testimony is useful

to establish any fact of consequence significant in the contest of litigation, the witness may

be impeached by means of a prior inconsistent statement as to any other matter testified to.”

McCormick, supra, at 169. Even if testimony is relevant and substantive, however, if it is

cumulative or duplicative, evidence may not be introduced for the primary purpose of later

impeaching that testimony. See Ruff v. State, 31 So.3d 833, 838 (Fla. Dist. Ct. App. 2010)

(finding impeachment of its own witness was improper where the witness’s testimony was

duplicative and “not substantive evidence of any facts in dispute”); James v. State, 765

So.2d 763, 765 (Fla. Dist. Ct. App. 2000) (finding impeachment of the state’s own witness

improper where the witness “did not testify as to any substantive matter in controversy that

had not already been testified to by other prosecution witnesses”).

{19} Unfavorable testimony, on the other hand, is that which is “affirmatively harmful”

to the proponent of the witness’s case. See Brown, 1998-NMSC-037, ¶ 52 (quoting Morton,
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689 So.2d at 264); see also Laur v. State, 781 So.2d 452, 454-55 (Fla. Dist. Ct. App. 2001)

(finding the state’s impeachment of its own witness was proper where she provided both

favorable testimony and “affirmatively harmful” testimony, including denying the crime had

occurred); 4 Clifford S. Fishman, Jones on Evidence § 26:27, at 365 (7th ed. 2000) (stating

that testimony must be “affirmatively harmful,” not “merely disappointing”). 

{20} The State suggests that Romero’s testimony was both favorable and unfavorable to

its case against Defendant, and that Olguin’s testimony was proper for the impeachment of

the unfavorable portion of Romero’s testimony. According to the State, Romero’s favorable

testimony established the events of the last night of Victim’s life, identified Victim’s car, and

corroborated the testimony of other witnesses. See Varela, 1999-NMSC-045, ¶ 30 (citing

corroborating testimony as favorable evidence for the State). The State contends that

Romero’s unfavorable testimony was his statement that he did not see anything “unusual”

happen between Defendant and Victim, weakening the case against Defendant. The State

used Olguin’s testimony of Romero’s prior inconsistent statement to attack the credibility

of that statement. 

{21} We are not convinced that the State introduced Romero’s testimony for the primary

purpose of providing evidence material to its prosecution. Much of Romero’s “favorable”

testimony pertained to innocuous events surrounding the purchase and use of drugs on the

night of Victim’s death, to which other live witnesses testified at trial. Testimony

concerning the purchase and use of drugs is immaterial in establishing Defendant’s guilt in

Victim’s death. Moreover, Defendant largely conceded the events set forth in Romero’s

testimony in his opening statements to the jury. Romero’s “unfavorable” testimony, that

nothing “unusual” was afoot when he left Victim’s home on the night of her death, was

consistent with the State’s theory of the case and leveled no affirmative harm in the State’s

direction. 

{22} The State knew with certainty before trial that the recorded preliminary hearing

testimony contained Romero’s denial that he made statements to Olguin inculpating

Defendant. Even if there had been anything in Romero’s preliminary hearing testimony that

the State could plausibly claim it needed at trial, the State could have introduced that portion

of the preliminary hearing testimony without introducing the denials that purportedly gave

rise to the reason for introducing Olguin’s otherwise inadmissible hearsay. The State did not

have a proper primary purpose of admitting Romero’s testimony to provide evidence

material to its case. We agree with Defendant that the introduction of Romero’s testimony

was for the purpose of impeaching that testimony with Olguin’s testimony as to Romero’s

otherwise inadmissible statements. Accordingly, we hold that the district court abused its

discretion by permitting Olguin to testify.

{23} For the foregoing reasons, we reverse Defendant’s convictions and remand the case

to district court for a new trial.

{24} IT IS SO ORDERED.
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_______________________________

PATRICIO M. SERNA, Justice 

WE CONCUR:

___________________________________

CHARLES W. DANIELS, Chief Justice

___________________________________

PETRA JIMENEZ MAES, Justice

___________________________________

RICHARD C. BOSSON, Justice

_________________________________

EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Lopez, Docket No. 30,257

CT CONSTITUTIONAL LAW

CT-CT Confrontation

CT-RF Right to Confrontation

EV EVIDENCE

EV-AV Availability of Witness

EV-CX Cross-Examination

EV-PA Prior Acts or Statements

EV-WT Witnesses