STATE V. CABEZUELA, 2011-NMSC-041,
150 N.M. 654, 265 P.3d 705
STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
ADRIANA CABEZUELA, Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
2011-NMSC-041, 150 N.M. 654, 265 P.3d 705
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY, Don Maddox,
District Judge.
Released for Publication November 29,
2011.
Jacqueline L. Cooper, Acting Chief Public
Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for
Appellant.
Gary K. King, Attorney General, Nicole
Beder, Assistant Attorney General, Santa Fe, NM, for Appellee.
PETRA JIMENEZ MAES, Justice.
WE CONCUR: CHARLES W. DANIELS, Chief Justice, PATRICIO M. SERNA, Justice,
RICHARD C. BOSSON, Justice, EDWARD L. CHÁVEZ, Justice.
AUTHOR: PETRA JIMENEZ MAES.
{1} Adriana Cabezuela
(Defendant) directly appeals her conviction for intentional child abuse
resulting in the death of her eight-month-old-daughter, contrary to NMSA 1978,
Section
30-6-1(H) (2005), alleging that (1) the jury was improperly instructed
as to the elements of intentional child abuse resulting in the death of a child
under the age of twelve; (2) the State failed to present sufficient evidence
from which the jury could have found beyond a reasonable doubt that Defendant
intentionally abused her child; (3) the testimony of the supervising
pathologist regarding the baby’s autopsy violated the Confrontation Clause; and
(4) the prosecutor engaged in multiple incidents of prosecutorial misconduct.
We conclude that (1) the jury was improperly instructed as to the elements of
intentional child abuse resulting in the death of a child under the age of
twelve, and (2) double jeopardy does not bar retrial because there was
sufficient evidence to support the jury’s verdict. We reverse Defendant’s
conviction and remand for a new trial. Because the claims of prosecutorial
misconduct were not preserved and we remand for a new trial, we do not address
that claim.
{2} Although our
determination of the jury instruction claim is dispositive of Defendant’s
appeal, to provide guidance to the trial court on remand, we address
Defendant’s Confrontation Clause claim.
See State v. Juan,
2010-NMSC-041, ¶ 20,
148 N.M. 747,
242 P.3d 314.
I. FACTS
AND PROCEDURAL HISTORY
{3} We begin with a
summary of events based on DVD video recordings of Defendant’s three police
interviews. At Defendant’s trial, the police interviews were entered into
evidence and played for the jury. Additional facts will be set forth as
necessary to address Defendant’s claims on appeal.
{4} Defendant was the
mother of six children. In June 2007, Defendant’s three youngest children,
including eight-month-old Mariana Barraza (Baby Mariana), resided with Defendant
in a small, one-bedroom rental home. Defendant’s boyfriend, Leonardo Samaniego,
Jr. (Boyfriend), had recently moved into Defendant’s home.
{5} On June 14, 2007,
shortly after midnight, Baby Mariana was rushed to the emergency room after she
stopped breathing. The emergency room nurse asked a police officer, who was at
the medical center with another suspect, to look at Baby Mariana’s body, which
was covered in bruises and bite marks. At 3:46 a.m., Baby Mariana was
pronounced dead.
{6} A short time after
their arrival at the hospital, a Hobbs police officer transported Defendant and
Boyfriend to the Hobbs police station. During Defendant’s initial police
interview, she eventually agreed with the detective that due to the stress of
caring for three small children she had lost her temper with Baby Mariana.
Defendant admitted that a few weeks earlier she bit Baby Mariana on the leg and
cheek. She also admitted that on a separate occasion she shook Baby Mariana to
the point of bruising. When asked about the day of the incident, June 13, 2007,
Defendant recalled that while she was at her storage shed with Baby Mariana
lying in a baby carrier, she hit Baby Mariana on the head with an open hand and
shook the baby carrier.
{7} On the night
of Baby Mariana’s death, Defendant admitted that she “pitched” Baby Mariana to
the floor from the height of about one foot. She then picked Baby Mariana up
“real quick” without supporting her head. As she “jerked” Baby Mariana up from
the floor, Baby Mariana gasped and stopped crying. Defendant stated to the
detective, “I would never hurt my babies.” Defendant insisted that Boyfriend
had never hurt her children.
{8} At the end of the
first interview, detectives informed Defendant that Baby Mariana had died.
Defendant requested that she tell Boyfriend of Baby Mariana’s death. Without
the detectives present, but as the DVD continued to record, Boyfriend entered
Defendant’s interrogation room. Boyfriend looked toward the camera before he
turned to Defendant in tears. After Defendant informed Boyfriend of Baby
Mariana’s death, she whispered to him, “I put the blame on myself that I bit
her . . . that I threw her.” Defendant was arrested at the police station and
charged with child abuse resulting in the death of a child.
{9} A Hobbs police
detective interviewed Defendant a second time the following day. Defendant
again stated that she was not covering for Boyfriend and he had never been
abusive toward her or her children.
{10} Almost two years
later, and three days before the trial was scheduled to start, Defendant
requested a third police interview. Defendant revealed that Boyfriend was
responsible for Baby Mariana’s injuries, and she did not implicate Boyfriend
earlier because he had previously threatened her and her children.
{11} Defendant
additionally gave a different account of the day of the incident. Defendant
explained that while she was at her storage shed getting clothes for her
children, Defendant heard Baby Mariana cry from the car where Boyfriend was
watching the children. When Defendant returned to the car, she noticed a bruise
on Baby Mariana’s forehead and a cut above her left eye. Defendant did not
question Boyfriend about Baby Mariana’s injuries because “he was already
frustrated,” and she was “scared . . . of him.”
{12} Defendant also gave
a different account of the night of Baby Mariana’s death. She told the
detective that all three children began to fuss in the middle of the night and
both Defendant and Boyfriend went into the children’s bedroom. Defendant stated
that as she stood between the playpen and the crib, Boyfriend picked up Baby
Mariana and left the room. Defendant then “heard just a thump,” but thought
Boyfriend had kicked the door as he walked from the room with Baby Mariana.
Boyfriend then told Defendant to turn on the lights because Baby Mariana was
not breathing.
{13} Unable to revive
Baby Mariana, Defendant, Boyfriend, and the children went down the street to
Boyfriend’s father’s home to call an ambulance because Defendant’s house did
not have a phone. The police and the ambulance arrived shortly thereafter, and
Baby Mariana was rushed to the hospital. Defendant and Boyfriend were initially
at the hospital with Baby Mariana, but were then transported to the police
station. While in the police car Boyfriend told Defendant, “You know what you
have to say. Don’t let them twist it around.”
{14} Defendant stated
that Boyfriend threatened her regularly, saying if she ever went outside the
house he would kill her and if she “disrespect[ed]” him she was “gonna get it.”
Defendant also claimed that Boyfriend had abused her three younger children.
Defendant said that Boyfriend had bitten Baby Mariana more than once because he
was “anxious,” and that he had shaken her.
{15} The jury found
Defendant guilty of intentional child abuse resulting in Baby Mariana’s death.
In accordance with NMSA 1978, Section
31-18-15(A)(1) (2005), Defendant received
a life sentence followed by five years of parole. Defendant appeals her
conviction pursuant to Rule
12-102(A)(1) NMRA and
Article VI, Section 2 of the
New Mexico Constitution, which provide for direct appeal from the trial court
when a sentence of death or life imprisonment has been imposed.
See State v.
Trujillo,
2002-NMSC-005, ¶ 8,
131 N.M. 709,
42 P.3d 814.
A. The jury
instructions do not accurately reflect the statutes and case law.
{16} The State charged
Defendant with “Abandonment or Abuse of a Child Resulting in Death.” The
criminal information described the offense as “knowingly, intentionally, and
without justification, caus[ing] Mariana Isabelle Barraza, a child under 12
years of age, to be placed in a situation that may [have] endanger[ed] the
child’s life or health, resulting in Marian[a] Isabelle [Barraza’s] death,
contrary to [NMSA 1978, Sections
30-6-1(D)(1) and 30-6-1(H)].”
{17} This Court
has adopted Uniform Criminal Jury Instructions that set out the elements for
intentional child abuse. UJI
14-602 NMRA (“Child abuse; intentional act or
negligently ‘caused’; great bodily harm; essential elements.”). The General Use
Note for Uniform Criminal Jury Instructions provides, in part:
Except for grand jury proceedings,
when a uniform instruction is provided for the elements of a crime, a defense
or a general explanatory instruction on evidence or trial procedure, the
uniform instruction must be used without substantive modification or
substitution. In no event may an elements instruction be altered or an
instruction given on a subject which a use note directs that no instruction be
given. For any other matter, if the court determines that a uniform instruction
must be altered, the reasons for the alteration must be stated in the record.
{18} Following the
language set forth in UJI 14-602 and UJI
14-610 NMRA, the trial court issued an
elements instruction (Instruction No. 3) and an instruction defining
“intentionally” (Instruction No. 4).
For
you to find Adriana Cabezuela guilty of child abuse resulting in death, the
State must prove to your satisfaction beyond a reasonable doubt each of the
following elements of the crime:
1.
Adriana Cabezuela caused Mariana Barraza to be placed in a situation which
endangered the life or health of Mariana Barraza;
2.
The defendant acted intentionally;
3.
Adriana Cabezuela’s actions or failure to act resulted in the death of Mariana
Barraza;
4.
Mariana Barraza was under the age of 18.
5.
This happened in New Mexico on or about the 14th day of June, 2007.
A
person acts intentionally when the person purposely does an act. Whether the
defendant, Adriana Cabezuela, acted intentionally may be inferred from all of
the surrounding circumstances, such as Adriana Cabezuela’s actions or failure
to act, conduct and statements.
See UJI 14-602 (“Child abuse; intentional act or
negligently ‘caused’; great bodily harm; essential elements.”); UJI 14-610
(“Child abuse; ‘intentional’; defined.”).
{19} Defendant
claims that Instruction No. 3 included both intentional and negligent theories
of child abuse, and it was “impossible to tell under which theory the jury
returned a guilty verdict.” Defendant also argues that Instruction No. 3
improperly instructed the jury as to the elements of intentional child abuse
resulting in the death of a child. Specifically, Defendant argues that the
phrase “failure to act” should have been omitted because such language aligns
itself solely with a negligent child abuse theory. In addition, Defendant
claims that the jury did not find Baby Mariana to be less than twelve years of
age, an essential element of the crime.
{20} The State’s
theory of the case was that either Defendant’s intentional actions or
intentional failure to act resulted in Baby Mariana’s death. The State argued
at trial that Defendant’s failure to act in protecting Baby Mariana qualified
as intentional child abuse because UJI 14-610’s definition of “intentionally”
includes a defendant’s failure to act.
{21} “[Jury instructions]
are to be read and considered as a whole and when so considered they are proper
if they fairly and accurately state the applicable law.”
State v. Hamilton,
89 N.M. 746, 750,
557 P.2d 1095, 1099 (1976). “[A]n erroneous instruction
presents an error without cure.”
State v. Parish,
118 N.M. 39, 44,
878
P.2d 988, 993 (1994) “The standard of review we apply to jury instructions
depends on whether the issue has been preserved.”
State v. Benally,
2001-NMSC-033, ¶ 12,
131 N.M. 258,
34 P.3d 1134. “If the [issue] has been
preserved we review the instruction for reversible error.”
Id. If the
issue has not been preserved, we review for fundamental error.
Id. In
this case, defense counsel preserved the jury instruction claim when he
objected to the inclusion of the words “failure to act” in Instruction No. 3,
and therefore, we review for reversible error.
{22} “Reversible
error arises if . . . a reasonable juror would have been confused or
misdirected.”
Parish, 118 N.M. at 42, 878 P.2d at 991. “A juror may
suffer from confusion or misdirection despite the fact that the juror considers
the instruction straightforward and ‘perfectly comprehensible’ on its face.”
Benally,
2001-NMSC-033, ¶ 12 (citing
Parish, 118 N.M. at 44, 878 P.2d at 993).
“Thus, juror confusion or misdirection may stem not only from instructions that
are facially contradictory or ambiguous, but from instructions which, through
omission or misstatement, fail to provide the juror with an accurate rendition
of the relevant law.”
Benally,
2001-NMSC-033, ¶ 12.
2. Definition
of Intentional and Negligent Child Abuse
{23} The
definition of abuse of a child is set out in Section 30-6-1(D) as “consist[ing]
of a person knowingly, intentionally or negligently, and without justifiable
cause, causing or permitting a child to be” placed in a dangerous situation,
tortured, or exposed to the weather. Section 30-6-1(A)(3) defines “negligently”
as “refer[ring] to criminal negligence and means that a person knew or should
have known of the danger involved and acted with a reckless disregard for the
safety or health of the child.” Although the Legislature defined “negligently”
for purposes of the criminal child abuse statute, the Legislature did not
define “intentionally” and did not include the phrase “failure to act” in
Section 30-6-1.
3. Permitting
and Causing Child Abuse
{24} The Uniform
Criminal Jury Instructions provide two different instructions for negligent
child abuse resulting in death. When a defendant negligently
causes
child abuse resulting in death, UJI 14-602 is given to the jury, whereas when a
defendant negligently
permits child abuse resulting in death, UJI
14-603
NMRA is given. However, when a defendant’s intentional act of child abuse
results in the death of a child, only UJI 14-602, the same instruction for
negligently causing child abuse, is presented to the jury.
{25} Because UJI
14-602 provides the essential elements for both intentionally and negligently
causing child abuse resulting in death, some of the elements listed in UJI
14-602 are alternatives, placed in brackets, with an explanation that only the
applicable alternative or alternatives are to be used. UJI 14-602 Use Note 2
(“Use only applicable alternative or alternatives.”). The trial judge must
determine which alternatives are to be used. In this case, Instruction No. 3
permitted the finding that Defendant was guilty of child abuse resulting in
death by her “
actions or
failure to act result[ing] in the death
of Mariana Barraza.” (emphasis added).
{26} State v. Leal
clarified that under Section 30-6-1(D)’s definition of criminal child abuse,
“‘cause’ and ‘permit’ are distinct. One is active, the other passive.”
104 N.M.
506, 509,
723 P.2d 977, 980 (Ct. App. 1986). “‘[P]ermit’ refers to the
proscribed act, the passive act of allowing the abuse to occur.”
Id. at
510, 723 P.2d at 981. By prohibiting both causing and permitting child abuse,
the legislature intended to provide
flexibility. Since abuse will frequently occur in the privacy of the home,
charging a defendant with “causing or permitting” may enable the state to
prosecute where it is not clear who actually inflicted the abuse, but the
evidence shows beyond a reasonable doubt that the defendant either caused the
abuse or permitted it to occur.
Id. at 509, 723 P.2d at 980. When correctly charged
and proven, this statute allows the State to charge a defendant, alternatively,
with causing or permitting child abuse when it is not clear who inflicted the
abuse. Id. However, “[w]hen the state chooses to charge under only one
portion of the statute (that defendant ‘caused’ or defendant ‘permitted’ the
abuse) the prosecution is limited to proving what it has charged.” Id.
{27} In this case,
the State only charged Defendant with intentionally causing Baby Mariana to be
placed in a situation which endangered her life, resulting in Baby Mariana’s
death. As a result, the State never proffered a negligent child abuse jury
instruction.
4. Intentional
child abuse occurs only when a defendant causes the abuse.
{28} The criminal
child abuse statute is silent on whether a defendant’s “failure to act” in protecting
a child constitutes intentional child abuse. Therefore, we look both to this
Court’s and the Court of Appeals’ application of Section 30-6-1 to determine
whether a defendant’s “failure to act” can result in an intentional child abuse
charge, or if such a charge is reserved for those defendants who actively cause
harm to the child.
{29} In
State
v. Adams, the mother and father were convicted of child abuse resulting in
the death of their daughter.
89 N.M. 737, 738,
557 P.2d 586, 587 (Ct. App.
1976),
overruled on other grounds by Santillanes v. State,
115
N.M. 215, 225 n.7,
849 P.2d 358, 368 n.7 (1993). The Court of Appeals stated
that the “inference from the evidence [was] that the physical abuse came from
[the mother],” and that the father “contend[ed], and the State agree[d], that
his conviction was based on negligence.”
Id. The Court addressed “not
whether [the father] allowed the abuse but whether he was
negligent in
failing to take action in connection with the abuse.”
Id. (emphasis
added). The Court determined there was substantial evidence to prove that the
father was negligent in failing to take action regarding his daughter’s abuse
at the hands of another.
Id. at 738-39, 557 P.2d at 587-88.
{30} In
State
v. Williams, the defendant was convicted of child abuse for the criminal
abuse that her husband inflicted on her four-year-old daughter.
100 N.M. 322,
323,
670 P.2d 122, 123 (Ct. App. 1983),
overruled on other grounds by Santillanes,
115 N.M. at 225 n.7, 849 P.2d at 368 n.7. The defendant conceded that it was
her husband that criminally abused her child.
Id. The Court of Appeals
determined that to
uphold the conviction the evidence
must show that on May 29, 1982, [the] defendant negligently, and without
justifiable cause, permitted her daughter to either be placed in a situation
that might endanger her life or health, or be cruelly punished, and that this
abuse resulted in great bodily harm to the child.
Id. The Court upheld the defendant’s conviction for
child abuse because the defendant’s “failure to remove her child from
the situation or her failure to seek help at the time of the incident was a
proximate cause of [the child’s] injuries,” which provided sufficient evidence
for a rational jury to find guilt beyond a reasonable doubt. Id. at 324,
670 P.2d at 124 (emphasis added).
{31} The most
recent example in New Mexico of a defendant being charged with negligent child
abuse versus intentional child abuse for a failure to act is
State v. Lopez,
2007-NMSC-037, ¶ 28,
142 N.M. 138,
164 P.3d 19. The defendant in that case
stated that on the night of the incident she was in the bedroom of her mobile
home with the child’s father and others, and “that she had two to three beers
prior to falling asleep at approximately 10:00 p.m.”
Id. ¶ 5. The father
and the two uncles remained awake, and when the defendant woke the next
morning, the child was “bruised, pale, and not breathing.”
Id. Although
the father’s and the uncle’s statements were “largely silent with regard to
[the defendant’s] actions or knowledge during the last two days of [the
child’s] life,” both placed the defendant in the room the night of the abuse.
Id.
¶ 26. In
Lopez, this Court held that statements made by the
defendant placing her in the same room as the child being abused supported the
charge of negligently permitting child abuse resulting in death.
Id.
{32} The
distinction between intentional child abuse resulting in the death of a child
under the age of twelve and negligent child abuse resulting in the death of a
child bears important practical consequences. The severity of the sentence that
the Legislature has provided for the crime of intentional child abuse resulting
in the death of a child under the age of twelve, a life sentence, indicates
that the Legislature meant to punish only the most deliberate and reprehensible
forms of child abuse under this crime. In contrast to the severe punishment for
intentional child abuse resulting in the death of a child under the age of
twelve, negligent child abuse resulting in the death of a child carries a much
lower maximum punishment: eighteen years.
See Garcia v. State,
2010-NMSC-023, ¶¶ 9-10,
148 N.M. 414,
237 P.3d 716. In
State v. Adonis,
we looked to the relative severity of the punishment for first-degree and
second-degree murder in assessing the required showing of intent that the
Legislature intended for each crime.
2008-NMSC-059, ¶ 14,
145 N.M. 102,
194
P.3d 717. We concluded that “[t]o prove first-degree murder, the State has a
heightened burden [in proving intent] commensurate with the [greater] severity
of punishment reserved for that crime.”
Id. ¶ 14.
{33} Similarly, in
this case, the Legislature has reserved a more severe punishment for
intentional child abuse resulting in the death of a child under the age of
twelve than negligent child abuse resulting in the death of the same child.
See
Garcia,
2010-NMSC-023, ¶¶ 9-13. Therefore, we conclude that the Legislature
did not intend to “lump within [intentional child abuse]” other forms of abuse
committed with a lesser degree of intent, specifically failure to act to
prevent another from abusing the victim child.
Adonis,
2008-NMSC-059, ¶
15 (internal quotation marks and citation omitted). Accordingly, a defendant’s
failure to act to protect a child from abuse aligns with a negligent theory of
child abuse in which the defendant permits or fails to act to prevent the
abuse. This is in contrast to the defendant causing the abuse, which aligns
with an active, intentional theory of child abuse.
{34} In this case,
Instruction No. 3 contained two distinct theories of child abuse. The first
theory was intentional child abuse. In her first two police interviews,
Defendant stated she caused the abuse by her actions toward Baby Mariana. The
second theory was negligent child abuse. In her third police interview,
Defendant stated she permitted the abuse by not protecting Baby Mariana from
Boyfriend.
{35} Similar to
the facts in
Lopez, neither party disputes that Defendant was in the
vicinity of both Boyfriend and Baby Mariana when the abuse occurred.
2007-NMSC-037, ¶ 5 (noting that the defendant was in the same room as the
individuals who actually abused the child, but was unaware of what happened
because she was asleep). According to statements in her third police interview,
however, Defendant did not abuse Baby Mariana. Defendant claimed that Boyfriend
carried Baby Mariana from the children’s room, and it was while Defendant was
with the other children that she heard a “thump.” Defendant initially thought
the “thump” was Boyfriend hitting the door on the way out of the children’s
room. Boyfriend then told Defendant to turn on the light because Baby Mariana
was not breathing.
{36} UJI 14-602,
the jury instruction for intentionally causing child abuse, is a misstatement
of the relevant law because the instruction, when it includes the phrase
“failure to act,” does not follow the language of Section 30-6-1. In addition,
because of Defendant’s statements in her third police interview, Defendant
should have received UJI 14-603, if requested, the jury instruction for
negligently permitting child abuse. There is no doubt that a reasonable jury,
presented with an intentional child abuse instruction that misstated the law
and void of an additional instruction that proffered the negligent child abuse
theory, would have been misdirected by the instructions tendered at Defendant’s
trial.
See Benally,
2001-NMSC-033, ¶ 12 (“Thus, juror confusion or
misdirection may stem not only from instructions that are facially
contradictory or ambiguous, but from instructions which, through omission or
misstatement, fail to provide the juror with an accurate rendition of the
relevant law.”). Accordingly, we reverse Defendant’s conviction of intentional
child abuse resulting in the death of a child and remand for a new trial.
{37} We request
that the UJI Committee for Criminal Cases (the Committee) review UJI 14-602,
along with UJI 14-603 and UJI 14-610. In particular, we suggest that there
should be separate instructions for negligent and intentional child abuse. We
also raise a concern with the definition of “intentionally” in UJI 14-610. In
1993, the Committee defined “intentionally,” for criminal child abuse purposes,
to occur “when the person purposefully does an act. Whether the (
name of
defendant) acted intentionally may be inferred from all of the surrounding
circumstances, such as [the defendant’s] actions or failure to act, conduct and
statements.” UJI 14-610. This language, however, runs contrary to the
definition of child abuse as defined by Section 30-6-1, which does not
reference a defendant’s failure to act in the definition of intentional child
abuse.
5. Omission
of an Essential Element that the Child Was Under the Age of Twelve in the
Intentional Child Abuse Jury Instruction
{38} We next address
Defendant’s claim that Instruction No. 3 omitted an essential element of
intentional abuse resulting in the death of a child: that the jury find the
child to be under the age of twelve. Element 4 of Instruction No. 3 required
the jury to find that “Mariana was under the age of 18.” “The language of a
statute determines the essential elements of an offense.”
State v. Padilla,
2008-NMSC-006, ¶ 41,
143 N.M. 310,
176 P.3d 299 (Chávez, C.J., dissenting).
Section 30-6-1(H) explicitly states that for a defendant to be guilty of a
first-degree felony resulting in the death of a child, the abuse that results
in the child’s death must be intentional, and the child must be less than
twelve years of age.
{39} It is “‘the
fundamental right of a criminal defendant to have the jury determine whether
each element of the charged offense has been proved by the state beyond a
reasonable doubt.’”
State v. Nick R.,
2009-NMSC-050, ¶ 37,
147 N.M. 182,
218 P.3d 868 (quoting
State v. Orosco,
113 N.M. 780, 786,
833 P.2d 1146,
1152 (1992)). Such determinations “cannot be ruled on by a trial court as a
matter of law and taken from the jury’s consideration, no matter how obvious
the existence of any essential element of an offense may seem.”
Id.
Accordingly, Instruction No. 3 incorrectly required the jury to find that Baby
Mariana was under the age of eighteen, rather than under the age of twelve.
B. The State
presented sufficient evidence from which the jury could have found beyond a
reasonable doubt that Defendant intentionally abused her child.
{40} We next address
Defendant’s sufficiency of the evidence claim to determine whether a retrial
would implicate double jeopardy protections.
See State v. Dowling,
2011-NMSC-016, ¶ 18,
150 N.M. 110,
257 P.3d 930;
State v. Mascareñas,
2000-NMSC-017, ¶ 31,
129 N.M. 230,
4 P.3d 1221 (“By addressing [the
defendant’s] claim of insufficient evidence and determining that retrial is
permissible, we ensure that no double jeopardy concerns are implicated.”). “If
we find that sufficient evidence was presented at trial to support a
conviction, then retrial is not barred. We review Defendant’s claim under the
erroneous instruction provided to the jury at trial.”
Dowling,
2011-NMSC-016, ¶ 18 (internal citation omitted).
{41} Defendant claims
that the State failed to present sufficient evidence to support her conviction
of intentional child abuse resulting in the death of a child because there was
insufficient evidence to prove beyond a reasonable doubt that Defendant
committed the abuse. The State argues that there was sufficient evidence to
convict Defendant of intentional child abuse resulting in the death of Baby
Mariana, either through her actions or her failure to act.
{42} “The test for
sufficiency of the evidence is whether substantial evidence of either a direct
or circumstantial nature exists to support a verdict of guilty beyond a
reasonable doubt with respect to every element essential to a conviction.”
State
v. Riley,
2010-NMSC-005, ¶ 12,
147 N.M. 557,
226 P.3d 656 (internal
quotation marks and citation omitted). This Court views “the evidence in the
light most favorable to the guilty verdict, indulging all reasonable inferences
and resolving all conflicts in the evidence in favor of the verdict.”
State
v. Cunningham,
2000-NMSC-009, ¶ 26,
128 N.M. 711,
998 P.2d 176. However, in
determining the sufficiency of evidence, we must scrutinize “the evidence and
supervision of the jury’s fact-finding function to ensure that, indeed, a
rational jury
could have found beyond a reasonable doubt the essential
facts required for a conviction.”
State v. Rojo,
1999-NMSC-001, ¶ 19,
126 N.M. 438,
971 P.2d 829 (internal quotation marks and citation omitted).
{43} Defendant does not
dispute that Baby Mariana died due to a blunt force injury to the head and that
the cause of death was homicide. Rather, Defendant argues that the State lacked
sufficient evidence to prove it was Defendant who abused Baby Mariana.
Defendant argues that the strongest evidence presented by the State to prove
Defendant abused Baby Mariana was Defendant’s three interviews with police.
{44} In Defendant’s first
two police interviews, she admitted to harming Baby Mariana on both the day and
the night of the incident. In her third police interview, Defendant stated it
was Boyfriend who harmed Baby Mariana.
{45} Defendant argues
that her statements in the third police interview “provided a plausible
explanation of what had actually happened,” and that although the jury did not
have to accept her third version of the facts, “her explanation should not
simply be disregarded by this Court.” However, contrary evidence offered by
Defendant does not warrant a reversal “because the jury is free to reject
Defendant’s version of the facts.”
Rojo,
1999-NMSC-001, ¶ 19. In this
case, regardless which of her statements the jury found to be credible,
Defendant admitted to either abusing Baby Mariana or failing to protect Baby
Mariana from the abuse by Boyfriend. Thus, the evidence adduced was sufficient.
{46} Defendant also
argues that the psychological testimony presented by Dr. Kenney, that she was
suffering from post-traumatic stress disorder, established that it was possible
that Defendant falsely confessed to hurting Baby Mariana in order to protect
herself and her children. Dr. Kenney noted that it is not uncommon for
individuals in a high-stress situation, such as Defendant’s, to confess to
something they did not do. Dr. Kenney’s testimony, that Defendant could have
lied about harming Baby Mariana, does not negate the fact that she failed to
act to protect Baby Mariana from Boyfriend.
{47} Our review of the
record reveals that there was sufficient evidence from which a reasonable jury
could conclude beyond a reasonable doubt that Defendant intentionally abused
Baby Mariana, either through her actions toward Baby Mariana or through her
failure to act to protect Baby Mariana from Boyfriend. Because we find that
there was sufficient evidence to convict Defendant, Defendant’s retrial is not
barred by double jeopardy implications.
C. The
testimony of the supervising pathologist regarding the autopsy did not violate
the Confrontation Clause.
{48} Defendant claims
that Dr. Michelle Barry’s expert testimony violated the Confrontation Clause,
U.S. Const. Amend. VI, because, as the supervising pathologist, she did not
actually perform Baby Mariana’s autopsy. The State argues that Dr. Barry’s
testimony was properly admitted because, as the supervisor, Dr. Barry had
personal knowledge of the examination; her testimony included her own opinion,
reached by reviewing records prepared with the assistance of another doctor;
and even if the trial court erred in admitting the testimony, the error was
harmless.
{49} Under the
Confrontation Clause, “[o]ut-of-court testimonial [hearsay is] barred . . .
unless the witness is unavailable and the defendant had a prior opportunity to
cross-examine the witness.”
State v. Aragon,
2010-NMSC-008, ¶ 6,
147
N.M. 474,
225 P.3d 1280 (internal quotation marks and citation omitted). We
generally review Confrontation Clause claims de novo.
See State v. Lasner,
2000-NMSC-038, ¶ 24,
129 N.M. 806,
14 P.3d 1282. However, because this claim
was not preserved, we review only for fundamental error.
See State v.
Martinez,
2007-NMSC-025, ¶ 25,
141 N.M. 713,
160 P.3d 894;
see also
State v. Dietrich,
2009-NMCA-031, ¶ 51,
145 N.M. 733,
204 P.3d 748 (noting
that the defendant failed to preserve the confrontation issue before the trial
court, and therefore the Court will analyze it only for fundamental error). “A
fundamental error occurs where there has been a miscarriage of justice, the
conviction shocks the conscience, or substantial justice has been denied.”
Dietrich,
2009-NMCA-031, ¶ 52. “The first step in reviewing for fundamental error is to
determine whether an error occurred. If that question is answered
affirmatively, we then consider whether the error was fundamental.”
State v.
Silva,
2008-NMSC-051, ¶ 11,
144 N.M. 815,
192 P.3d 1192 (internal citation
omitted).
{50} Dr. Barry testified
that Dr. Ann Bracey, a forensic pathology fellow, performed Baby Mariana’s
autopsy. Although Dr. Barry did not perform Baby Mariana’s autopsy, she was the
supervising pathologist for this autopsy; she went “through every key feature
with Dr. Bracey,” which included the “microscopic exam, examination of the body
and the injuries, examination of all the photographs.” Dr. Barry explained that
because of her involvement in the autopsy, both her name and Dr. Bracey’s name
appeared on the reports, and that in her testimony she would be referring to “
our
autopsy report” in order to be as accurate as possible.
{51} Defendant relies on
the U.S. Supreme Court’s opinion in
Melendez-Diaz v. Massachusetts to
argue that autopsy results are testimonial statements which should be
introduced at trial by the doctor who performed the autopsy. 557 U.S. ___, ___,
129 S. Ct. 2527, 2531 (2009). In
Melendez-Diaz, the Supreme Court held
that the admission of certificates prepared and sworn to by analysts at a state
crime laboratory, identifying a substance as cocaine, were testimonial
statements which triggered the defendant’s rights under the Confrontation
Clause.
Id. at ___, 129 S. Ct. at 2531-32. The Court recognized that
although there may be “other ways—and in some cases better ways—to challenge or
verify the results of a forensic test,” “[s]ome forensic analyses, such as
autopsies . . . cannot be repeated,” and therefore the Confrontation Clause is
crucial in such instances to protect a defendant’s Sixth Amendment rights.
Id.
at ___ & n.5, 129 S. Ct. at 2536 & n.5.
{52} Defendant’s reliance
on
Melendez-Diaz is flawed. In
Melendez-Diaz, the State submitted
three “certificates of analysis” showing the results of the forensic analysis
performed on the seized substances without having the analysts testify in
court.
Id. at ___, 129 S. Ct. at 2531. This case is materially different
in that the autopsy report was never entered into evidence and Dr. Barry, who
“went through every key feature” of the autopsy with Dr. Bracey, testified at
trial. Unlike the defendant in
Melendez-Diaz, Defendant had a full and
fair opportunity to cross-examine Dr. Barry to determine whether Dr. Barry had
personal, first-hand knowledge of how Dr. Bracey conducted the autopsy and what
Dr. Bracey found by observing the autopsy.
See Bullcoming v. New Mexico,
___ U.S. ___, ___, 131 S. Ct. 2705, 2709-10 (2011) (finding a Confrontation
Clause violation where the testifying analyst “had neither participated in nor
observed the test on Bullcoming’s blood sample”). Absent such
cross-examination, the record before us supports a reasonable inference that
Dr. Barry had personal knowledge of and participated in making the autopsy
report findings by virtue of her own independent participation in the
microscopic exam, examination of the body and the injuries, and examination of
all the photographs. Therefore, the record supports a conclusion that Dr. Barry
had sufficient personal knowledge to testify as to what Dr. Bracey discovered
through the autopsy. There was no error in the admission of Dr. Barry’s
testimony at trial.
D. Did
the State engage in multiple incidents of prosecutorial misconduct?
{53} Defendant
claims that the State committed multiple incidents of prosecutorial misconduct
when the State made biblical references during closing arguments, misrepresented
the fact that use immunity for Boyfriend had been obtained, and failed to make
a witness in State custody available for an interview. Defendant concedes that
the claims of prosecutorial misconduct were not preserved at trial. Because we
have reversed Defendant’s conviction of intentional child abuse resulting in
the death of a child and remanded for a new trial, we do not address these
issues.
{54} We hold that (1) the
jury instructions presented by the trial judge, though properly derived from
the Uniform Jury Instructions issued by this Court, resulted in reversible
error because the jury was improperly instructed as to the elements of
intentional child abuse resulting in the death of a child under the age of
twelve; (2) the State presented sufficient evidence from which the jury could
have found beyond a reasonable doubt that Defendant intentionally abused her
child; and (3) the testimony of Dr. Barry, the supervising pathologist
regarding Baby Mariana’s autopsy, did not violate the Confrontation Clause.
Accordingly, we reverse Defendant’s conviction and remand for a new trial.
PETRA JIMENEZ MAES, Justice
CHARLES W. DANIELS, Chief Justice
PATRICIO M. SERNA, Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
Topic Index for State v. Cabezuela, Docket No.
32,000)
CL-CN Child Abuse and
Neglect
CA-MP Misconduct by
Prosecutor
CA-SE Substantial or
Sufficient Evidence
JI-CJ Criminal Jury Instructions
JI-IJ Improper Jury Instructions