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2021.10.05 Commission
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2021-NMCA-051
Filing Date: July 20, 2021
No. A-1-CA-36757
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOSÉ CABRAL a/k/a
JOSÉ DE JESUS CABRAL,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Marci E. Beyer, District Judge
Released for Publication October 12, 2021.
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Aja Oishi, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
YOHALEM, Judge.
{1} Defendant José Cabral appeals his conviction of two counts of criminal sexual
contact of a minor, pursuant to NMSA 1978, Section 30-9-13(B)(1) and (C)(1) (2003).
Defendant, who is a non-English speaker, contends that the district court abused its
discretion when it excluded the testimony of his polygraph expert, ruling that Defendant
had violated Rule 11-707(D) NMRA, by failing to provide the prosecutor with a
transcription and translation of the Spanish-language audio recording of his polygraph
examination thirty days before trial. The district court concluded that Defendant’s failure
to have a certified court interpreter prepare these documents and produce them to the
State violated Rule 11-707(D)(3)’s requirement for an “audible” audio or visual recording
of the examination, making cross-examination difficult or impossible. We agree with
Defendant that the district court’s decision to exclude his polygraph examiner’s
testimony was an abuse of the court’s discretion, and that the court’s erroneous
exclusion of the key defense witness prejudiced Defendant and was not harmless error.
We, therefore, reverse and remand for a new trial.
BACKGROUND
{2} In 2013, Victim reported to police that seven years earlier, when she was eight
years old, Defendant inappropriately touched her, once on her clothed breast and a
second time, under her clothes, on her buttocks. Defendant categorically denied
Victim’s allegations.
{3} During the investigation of the allegations, Las Cruces Police Department Officer
Manuel Carrera offered Defendant the opportunity to take a polygraph examination to
help the police determine the truth of his denial. Defendant speaks only Spanish. Officer
Carrera attempted to locate a bilingual polygraph examiner to conduct the examination.
Because the officer was not able to find a bilingual examiner in Doña Ana County, the
police never conducted a polygraph examination of Defendant.
{4} Defendant located a qualified bilingual polygraph examiner and underwent a
polygraph examination on December 4, 2014. The pre- and post-test interview were in
Spanish, and the questions were asked and answered in Spanish. The pre- and post-test interviews of Defendant and the full examination itself were recorded, in
conformance with Rule 11-707(C)(6). The six requirements of Rule 11-707(C), for
admissibility of the results, were met: (1) the polygraph examiner was qualified; (2) the
examination was quantitatively scored; (3) the polygraph examiner was informed as to
Defendant’s background prior to the examination; (4) at least two relevant questions
were asked; (5) at least three charts were taken of Defendant; and (6) the entire
examination, including pre- and post-test interviews, was recorded in full on an audio
recording device. The polygraph examiner would have testified that the examination
was valid and reliably showed that Defendant’s denial that he touched Victim in a sexual
manner was truthful.
{5} The State tried Defendant twice. At the first trial, on August 15, 2016, Defendant
sought to introduce the polygraph examiner’s testimony. The district court, however,
excluded the testimony because defense counsel had failed to timely disclose the
charts associated with the polygraph examination, the full list of questions, and the
audio recording to the prosecution thirty days before trial, as required by Rule 11-
707(D). The district court proceeded to trial without the exculpatory polygraph evidence.
The first jury was unable to agree on which of the conflicting versions of the facts to
believe, and the first trial ended in a mistrial.
{6} Defendant’s second trial was set for December 12, 2016. More than thirty days
before trial, as required by Rule 11-707(D), Defendant sent the State the charts
prepared by the polygraph examiner, the full list of questions, and an audio recording of
the entire examination, which included all pre- and post-test interviews.
{7} Five days before trial, Defendant filed an emergency motion in limine asking the
district court to rule on the admissibility of the polygraph testimony. The motion was
heard on the morning of the first day of trial, prior to jury selection. At the hearing on the
motion, the State agreed that Defendant met the disclosure and production
requirements of Rule 11-707(D). The State nonetheless delayed stipulating to the
admission of the polygraph examiner’s testimony, telling the district court that it wanted
to confirm with the examiner on voir dire, under oath, that the audio recording included
the entirety of the examiner’s pre- and post-test interviews with Defendant. The district
court conditionally admitted the polygraph evidence pending the State’s voir dire of the
polygraph examiner, set for the next morning.
{8} The district court then proceeded to jury selection. Both parties questioned the
jurors about their view on the reliability of polygraph examinations. In its opening
statement, the defense told the jury that they would be hearing polygraph evidence and
would be asked to evaluate its reliability.
{9} On the second day of trial, the State conducted its voir dire of the polygraph
examiner. Having satisfied itself that the audio recording was complete, the State
stipulated to the admission of the polygraph examiner’s testimony. The district court
then asked whether the jury would be asked to view anything in Spanish. The
prosecution responded that the State intended to play some short sections of the audio
recording of the polygraph examination on cross-examination and suggested that either
the bilingual polygraph examiner or the court interpreters could translate. The court
indicated that it would require any translation to be done by certified court interpreters
and would not allow the examiner to translate.
{10} The next morning, on the third day of trial, the prosecutor reported to the court
that he had spoken to the court interpreters and had given them time stamps identifying
the portions of the audio recording the State planned to use in its cross-examination of
the polygraph examiner. The prosecutor represented that he expected to use a total of
fifteen minutes of the two-hour examination in his cross-examination. The prosecutor
clarified that most of his cross-examination would involve questions and answers in
English about the conduct of the examination and the basis for the examiner’s findings.
The prosecutor intended, in addition to his other cross-examination, to play a handful of
the recorded questions and answers so he could ask the examiner about why that
particular question and answer suggested to the examiner that the test was valid. The
prosecutor told the court that he had been able to review and understand the recording
sufficiently for his own preparation, and, therefore, had not had it translated.
{11} The court questioned the interpreters who were present in the courtroom to
translate for Defendant and several Spanish-speaking jurors about their progress in
translating the portions of the audio requested by the prosecutor. The interpreters
reported they were making progress. They explained that they would not be able to
translate simultaneously, but would need a short section played, followed by a
translation.
{12} On the morning of the fourth day of trial, just before the polygraph examiner’s
testimony was to begin, the district court interpreters appeared with their supervisor.
The interpreters reported to the court that they were having difficulty translating the
audio because the voices overlapped in a few places, and in other places they were
having a hard time determining who was speaking. The supervisor informed the court
that the interpreters could not perform a simultaneous translation of the fifteen minutes
of audio sought by the prosecution, within the standards of their profession. The
supervisor did not mention whether it would be possible to translate a sentence at a
time, as proposed the day before. The supervisor relied on a position paper prepared by
the National Association of Judiciary Interpreters and Translators, which stated that the
best practice is to first transcribe an audio recording in its original language, and then
translate that transcription into English. The interpreters’ time estimate for this process
was more than an hour for each minute of audio. The State’s requested fifteen minutes
would thus take more than fifteen hours to transcribe and translate. Finally, the
supervisor told the district court that one of her interpreters had told her that the
interpreter had talked to defense counsel about transcribing and translating this audio
recording quite a while before trial and that he had done nothing.
{13} Following this report from the interpreters, with the prompting of the trial judge,
the State moved to exclude the testimony of Defendant’s polygraph examiner “for failure
to comply with the requirements of [the] law.” The State claimed that “the spirit of the
law” was frustrated by Defendant’s failure to provide a transcription and translation thirty
days before trial. The district court granted the motion, admonishing Defendant’s
counsel about his lack of preparation.
{14} Defendant objected to the exclusion of the polygraph evidence and asked the
court for a hearing with sworn testimony. The district court allowed defense counsel to
question the supervisor under oath and to make an offer of proof that the polygraph
examiner was certified and his examination of Defendant satisfied all parameters set
forth in Rule 11-707(C). On cross-examination by defense counsel, the supervisor
admitted that, despite telling the district court that defense counsel had been advised by
one of the interpreters that the polygraph audio needed to be transcribed and translated
before trial, the interpreter reported only that defense counsel wanted a document
translated, not an audio recording. The supervisor admitted the conversation likely did
not relate to the polygraph audio in this case.
{15} Defense counsel renewed his objection to the district court’s exclusion of a
critical witness for the defense, arguing the defense had fully satisfied the requirements
of Rule 11-707(D), by timely producing a copy of the original audio recording of the
entire examination. The district court refused to change its decision, explaining that it
was not excluding the polygraph examiner’s testimony based on any concern about the
examiner’s qualifications or compliance with the requirements for admissibility found in
Rule 11-707(C). The district court stated that its exclusion of the examiner’s testimony
was based on the court’s construction of Rule 11-707(D)(3)’s requirement placing the
responsibility on the proponent of the examination to provide a copy of the audio
recording of the examination. The district court stated that it interpreted the rule to
require the entire recording to be “audible,” and that, in the court’s view, when the
examination is of a Spanish speaker, it is “incumbent on the person who does the
polygraph . . . to have [the audio transcribed] and then [translated].” The court described
the purpose of Rule 11-707(D)(3) as the production of a recording that could be played
in court. Stating that “we don’t have a sufficient record for [cross-examination,]” the
district court refused to reconsider its exclusion of the polygraph examiner’s testimony.
{16} Trial then proceeded without the polygraph evidence.
{17} The evidence at trial pitted Victim’s testimony about two incidents of
inappropriate touching by Defendant, who is Victim’s uncle, against the testimony of
Defendant’s close relatives denying that the incidents had or even could have occurred
as reported by Victim. There was no physical evidence of inappropriate touching
presented to the jury. There was no eye witness testimony. Various family members,
who admitted there was a schism between Victim’s maternal and paternal families,
testified about their memory of events twelve years earlier when Victim alleged the
incidents had occurred. The jury convicted Defendant of both counts of criminal sexual
contact of a minor, pursuant to Section 30-9-13(B)(1) and (C)(1).
DISCUSSION
{18} We are called upon in this appeal to review the district court’s ruling excluding
the testimony of Defendant’s polygraph examiner.
{19} “A [district] court’s decision to admit or exclude evidence for failure to comply with
notice and disclosure requirements is reviewed on appeal for an abuse of discretion.”
State v. Guerra, 2012-NMSC-014, ¶ 23,
278 P.3d 1031. “A district court abuses its
discretion when it applies an incorrect standard, incorrect substantive law, or its
discretionary decision is premised on a misapprehension of the law.” State v.
Oppenheimer & Co.,
2019-NMCA-045, ¶ 6,
447 P.3d 1159 (internal quotation marks
and citation omitted).
{20} In this case, the district court construed Rule 11-707(D)’s notice and disclosure
provisions to require Defendant, the proponent of the polygraph evidence, to have the
recording of his Spanish-language polygraph examination transcribed and translated
into English by a certified court interpreter, and then to provide that transcription and
translation, along with a copy of the recording, to the prosecution at least thirty days
prior to trial. Based on its construction of Rule 11-707(D), the district court decided
Defendant had violated Rule 11-707(D)(3), and excluded the testimony of the defense
expert.
{21} We hold that Rule 11-707(D) does not impose on the proponent of polygraph
expert testimony a requirement to produce a transcription and translation of the audio
recording of the examination to the opposing party. The district court misconstrued both
the language and purpose of Rule 11-707(D), improperly excluding a key defense
witness. The exclusion of the polygraph examiner’s testimony was, therefore, an abuse
of the court’s discretion.
{22} We conclude, as well, that the district court’s error was not harmless. The
erroneous exclusion of the polygraph examiner’s testimony deprived Defendant of his
central defense witness, seriously impairing his ability to mount a defense in a trial,
which turned entirely on credibility. There is a reasonable probability that the result
would have been different had this evidence been admitted.
{23} Given our holding, we need not address Defendant’s ineffective assistance of
counsel claim. We reverse and remand for a new trial.
I. Rule 11-707(D)(3) Does Not Require Production of a Transcription and
Translation of the Recorded Polygraph Examination of a Non-English
Speaker
{24} We first construe Rule 11-707(D) to determine if that rule, which governs the
admission of polygraph evidence, supports the district court’s ruling.
{25} “Our review is de novo because the interpretation of rules is a question of law.”
H-B-S P’ship v. Aircoa Hosp. Servs., Inc., 2008-NMCA-013, ¶ 5,
143 N.M. 404,
176
P.3d 1136. We interpret our Supreme Court’s rules of procedure just as we interpret
statutes: by determining the underlying intent of the enacting authority. See
id. “We
begin by examining the plain language of the rule as well as the context in which it was
promulgated, including the history of the rule and the object and purpose.” State v.
Aslin,
2020-NMSC-004, ¶ 9,
457 P.3d 249 (internal quotation marks and citation
omitted). Finally, we take care to avoid an absurd or unreasonable result. State v.
Marshall,
2004-NMCA-104, ¶ 7,
136 N.M. 240,
96 P.3d 801.
{26} The parties agree that the plain language of Rule 11-707(D)—the provision that
requires production to the opposing party of copies of the polygraph examiner’s reports,
questions, charts, and an audio or video recording of the full examination—does not
explicitly require production to the opposing party of a transcription or translation when a
polygraph examination is conducted in Spanish or any language other than English.
Rule 11-707(D) states that the notice produced to the opposing party of intent to use
polygraph evidence must include four reports, which must be attached to or produced
with the notice. The district court focused on the third item listed:
(3) a copy of the audio or video recording of the entire
examination, including the pretest interview, and, if conducted, the post-test interview[.]
Rule 11-707(D)(3).
{27} Although the plain language of Rule 11-707(D)(3) does not explicitly require the
production of a transcription and translation of audio or video recordings, requiring only
the production of the recording itself, we are mindful of our Supreme Court’s admonition
that caution must be exercised in applying the plain meaning rule. See State ex rel.
Helman v. Gallegos, 1994-NMSC-023, ¶ 23,
117 N.M. 346,
871 P.2d 1352. Even
language seemingly clear on its face may mask reasons found in the rule’s history or
background, or found in a conflict between statutory wording and overall intent, that give
rise to “genuine uncertainty as to what the [L]egislature was trying to accomplish.”
Id.
{28} We turn therefore to the history and purpose of Rule 11-707. In Lee v. Martinez,
the State asked our Supreme Court to repeal Rule 11-707 and hold that polygraph
results are per se excluded as scientifically unreliable. 2004-NMSC-027, ¶¶ 1-4,
136
N.M. 166,
96 P.3d 291. The Supreme Court conducted a Daubert/Alberico 1 analysis of
the scientific reliability of polygraph examination results and concluded that the results
are both sufficiently helpful to the jury in evaluating the truthfulness of a witness’s
testimony and sufficiently reliable, to be admitted, so long as the examination is
conducted in accordance with Rule 11-707’s requirements. Lee,
2004-NMSC-027, ¶¶
17, 48. Instead of repealing Rule 11-707, our Supreme Court ordered our district courts
“to comply with Rule 11-707 in determining whether to admit polygraph examination
results.” Lee,
2004-NMSC-027, ¶ 50.
{29} Our Supreme Court stated its intent in Lee to resolve any doubt regarding the
admissibility of polygraph evidence. The Court reiterated its general view that doubts
regarding the admissibility of scientific evidence should be resolved “in favor of
admission, rather than exclusion,” and applied that view to polygraph testimony. Id. ¶
16. The remedy for any doubts about the reliability of the polygraph examination,
according to the Court, “is not exclusion; the remedy is cross-examination, presentation
of rebuttal evidence, and argumentation.” Id. ¶ 48.
{30} The Court also addressed the notice and disclosure requirements of Rule 11-
707(D) specifically in its decision in State v. Gonzales. The Court held that the purpose
of the Rule 11-707(D) notice and disclosure requirements is “to prevent unfair surprise
and to ensure an adequate opportunity to prepare rebuttal.” State v. Gonzales, 2000-
NMSC-028, ¶¶ 21, 30, 129 N.M. 556,
11 P.3d 131, overruled on other grounds by State
v. Tollardo,
2012-NMSC-008,
275 P.3d 110. Rule 11-707(D) places the responsibility for
preparing argument, cross-examination, and rebuttal on the party opposing the
polygraph evidence, facilitating that preparation by ensuring that the opponent receives
timely notice that polygraph evidence will be offered, along with copies of the materials
prepared by the polygraph examiner prior to and during the examination and an audio
or video recording of the examination itself. Our Supreme Court noted that these notice
and disclosure requirements serve to “give the opposing party an opportunity to collect
rebuttal evidence[,]” Gonzales,
2000-NMSC-028, ¶ 21 (internal quotation marks and
1Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579 (1993); State v. Alberico,
1993-NMSC-047,
116
N.M. 156,
861 P.2d 192.
citation omitted), or to “conduct[] another exam if [the opponent] was unsatisfied with the
results of the first exam.” Id. ¶ 22. There is no suggestion in Gonzales that the
proponent of the examination is required to assist the opposition in preparing its cross-examination or rebuttal beyond the requirement that the proponent timely produce the
examination materials prepared by and used by the examiner during the examination
and in the examiner’s determination of the results.
{31} This Court is not aware of any such requirement in other situations where
production of a document or recording is required. Our Supreme Court’s rules governing
discovery, for example, require only that each party produce materials in his or her
possession; there is no requirement that a party create new documents, organize or
reformat information, or translate documents to facilitate cross-examination by the
opposing party. See Rule 5-502(A)(1) NMRA (limiting the scope of production to
documents or tangible things “which are within the possession, custody or control of the
defendant”). Importantly, the recording of the polygraph examination is not the evidence
the defense sought to present to the jury; that evidence was the testimony of the
polygraph examiner as to the results of the examination. The recording was simply the
raw data relied on by the examiner.
{32} Finally, the district court’s interpretation of Rule 11-707(D)—requiring the
transcription and translation of the entire audio recording—fails to consider the difficulty
and cost of requiring a transcription and translation of the entire recording. In this case,
the audio recording was two hours long. According to one of the district court’s
interpreters in this case, that transcription alone would take approximately an hour per
minute of recorded material. The court’s construction of Rule 11-707(D)(3) would have
required Defendant to hire an independent certified court interpreter 2 to transcribe and
translate all 120 minutes of the recording, something that could require more than 120
hours of full-time work (three to four weeks, of full-time work) by a certified court
interpreter. Even assuming that other interpreters could process the transcription and
translation more efficiently than the estimate given the court, the district court’s
construction would impose an additional cost upon every party seeking to admit
polygraph evidence, without a basis in rule or law for doing so. The district court’s
construction thus “leads to an unreasonable or absurd result.” Marshall, 2004-NMCA-
104, ¶ 7. 3
{33} We therefore conclude that the district court premised the exercise of its
discretion on a misapprehension of the law. Defendant did not violate the notice and
disclosure requirements of Rule 11-707(D), and it was error to exclude the polygraph
testimony on this basis.
2The district court interpreters testified that their office is not available for this work and that an interpreter
other than a district court interpreter would have to be hired and paid outside the district court by defense
counsel.
3We note as well that the district court did not turn to Rule 5-122 NMRA, which offers guidance to our
district courts on interpretation and translation in criminal cases. That rule permits consecutive interpreting
of each sentence when simultaneous translation of audio recordings is not possible. Rule 5-122(E)(10).
II. Exclusion of the Testimony of Defendant’s Polygraph Examiner Was Not
Harmless Error
{34} Defendant contends that the district court’s error in excluding the polygraph
expert testimony was not harmless and resulted in reversible error. We agree.
{35} We review the improper exclusion of evidence for harmless error. See State v.
Astorga, 2015-NMSC-007, ¶ 42,
343 P.3d 1245 (“When an error is preserved, we
review for harmless error[.]”). “Absent a constitutional violation, we look to whether there
is a reasonable probability that the error affected the verdict.” Id. ¶ 43. “Defendant bears
the initial burden of demonstrating that he was prejudiced by the error.” Id.
{36} In this case, Defendant sought to introduce polygraph evidence that his
testimony denying that he touched Victim in a sexual way was truthful. The jury was
confronted with directly conflicting testimony. There was neither physical evidence of
inappropriate touching by Defendant, nor was there any witness to the incidents
described by Victim. At Defendant’s first trial, where the polygraph evidence was
properly excluded, the jury was unable to reach a decision. In the second trial, the jury
was expecting to hear polygraph evidence from the defense based on voir dire and
Defendant’s opening statement. That unfulfilled expectation likely led the jury to
speculate about why that evidence was withdrawn, to wonder whether it was excluded
because it was not reliable, or did not show that Defendant was truthful.
{37} Based on the circumstances at trial, there is a reasonable probability that the
exclusion of the polygraph evidence had an impact on the verdict. The error was
therefore not harmless and requires reversal. Tollardo, 2012-NMSC-008, ¶ 25.
CONCLUSION
{38} For the reasons stated, we reverse and remand for a new trial.
{39} IT IS SO ORDERED.
JANE B. YOHALEM, Judge
WE CONCUR:
KRISTINA BOGARDUS, Judge
MEGAN P. DUFFY, Judge
