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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2023-NMCA-031
Filing Date: January 4, 2023
No. A-1-CA-39175
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JACOB SCOTT,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
James Waylon Counts, District Court Judge
Raúl Torrez, Attorney General
Benjamin Lammons, Assistant Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Charles D. Agoos, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
HANISEE, Chief Judge.
{1} Defendant Jacob Scott appeals his convictions, following a jury trial, for two
counts of trafficking controlled substances, contrary to NMSA 1978, Section 30-31-
20(B) (2006). Defendant argues the following: (1) law enforcement officers’ testimony
regarding information provided by a confidential informant (CI) violated the
Confrontation Clause; (2) the admission of such testimony alternatively constituted
inadmissible hearsay amounting to prejudicial constitutional error; (3) the district court
erred in denying Defendant’s motion to exclude as a discovery sanction evidence
related to law enforcement’s coordination with the confidential informant; and (4) the
State violated Defendant’s right to reasonable notice by changing its theory of the case
on the morning trial was set to begin. For the reasons that follow, we affirm.
DISCUSSION
{2} The Lincoln County Sheriff’s Office executed an arrest warrant during a traffic
stop for charges pending against Defendant in a matter unrelated to this appeal. During
that arrest, law enforcement found approximately twenty grams of heroin and seven
grams of methamphetamine in Defendant’s underwear. Defendant subsequently was
indicted by a grand jury on multiple charges, including the two counts of trafficking a
controlled substance on which he was convicted. 1 At trial, Officers Brack Rains and Pat
Montes testified to the circumstances that led to Defendant’s arrest, including
information regarding law enforcement’s coordination with a CI.
{3} Defendant first argues that such testimony violated the Confrontation Clause
because it conveyed to the jury out-of-court statements intended to prove the truth of
the matter asserted—that is, that Defendant had an intent to distribute the drugs found
on his possession. “[W]hether out-of-court statements are admissible under the
Confrontation Clause is a question of law, subject to de novo review.” State v. Largo,
2012-NMSC-015, ¶ 9,
278 P.3d 532. The Confrontation Clause ensures that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI; N.M. Const. art. II, § 14. Under the
Confrontation Clause, “an out-of-court statement that is both testimonial and offered to
prove the truth of the matter asserted may not be admitted unless the declarant is
unavailable and the defendant had a prior opportunity to cross-examine the declarant.”
State v. Navarette,
2013-NMSC-003, ¶ 7,
294 P.3d 435.
{4} Here, Defendant asserts that the following testimony of Officer Rains included
testimonial statements by the CI used to establish the truth of the matter asserted:
State: So how did you know [Defendant] was going to be in
the area?
Officer Rains: . . . [W]e arranged through a [CI] to make a purchase.
....
State: On January 24th, you were working with a [CI] and
what did you instruct the informant to do?
Officer Rains: Order narcotics from [Defendant]. Arrange for a
meeting.
State: Did [the CI] give you a general vicinity of where that
meeting should occur?
Officer Rains: He did.
1Defendant was initially charged as well with one count of racketeering, contrary to NMSA 1978, Section
30-42-4(C) (2015); one count of extortion, contrary to NMSA 1978, Section 30-16-9 (1963); and two
counts of receiving or transferring a stolen motor vehicle, contrary to NMSA 1978, Section 30-16D-4(A)
(2009). The State subsequently filed a nolle prosequi as to these charges.
{5} Defendant further contends that the following testimony of Officer Montes, who
found the narcotics during the execution of the warrant for Defendant’s arrest, included
impermissible testimonial statements used to prove the truth of the matter asserted:
I took [Defendant] out of his vehicle, took him down, advised him of his
warrant, was advised to pat him down for narcotics because he was
known to have narcotics on him.
{6} We first consider whether these statements are testimonial. See Navarette,
2013-NMSC-003, ¶ 7. Testimonial statements may include “formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confessions,” as well as
“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.” State v. Gurule,
2013-NMSC-025, ¶ 35,
303 P.3d 838 (internal quotation marks
and citation omitted). Our Supreme Court has explained that “a statement can only be
testimonial if the declarant made the statement primarily intending to establish some
fact with the understanding that the statement may be used in a criminal prosecution.”
Navarette,
2013-NMSC-003, ¶ 8.
{7} Here, even if we were to assume without deciding that a “reasonable person” in
the CI’s position—that being the position of someone working with law enforcement
officers to set up a controlled buy for the sale of narcotics—“would objectively believe
that [his or her] statement . . . would be used in a later criminal prosecution,” Gurule,
2013-NMSC-025, ¶ 38, we cannot conclude that the challenged testimony at issue
included testimonial statements made by the CI. Indeed, there is no actual statement to
analyze for its testimonial nature here, given that the testimony in question wholly lacks
any words allegedly uttered by the CI. In order to demonstrate a Confrontation Clause
violation, the State must elicit testimony conveying a specific statement made by an out-of-court declarant who is unavailable for cross-examination. Navarette, 2013-NMSC-
003, ¶ 7. Defendant has failed to identify the occurrence of such testimony, and our own
thorough review of the record likewise reveals none.
{8} Stated differently, the testimony Defendant contends triggered his right to
confront by cross-examination the CI altogether lacks words spoken by the CI. To the
extent any of the officers’ testimonies can even be construed as attributable to the CI,
that aspect of it does not assert who was the seller or who the buyer was at any
completed or planned controlled purchase. Indeed, only Officer Rains himself stated he
instructed the CI to “order narcotics from [Defendant,]” a statement about which Officer
Rains was subject to cross-examination. And nothing within Officer Montes’s testimony
suggested any statement attributable to the CI regarding Defendant’s plan for the
narcotics in his possession.
{9} Defendant argues that Confrontation Clause violations may nonetheless occur
when testimony incorporates implied or inferred statements by absent declarants, thus
precluding the need for a violation to arise from the utterance of a direct statement by
that absent declarant. Defendant further contends that because the “questions and
answers [at issue here] conveyed the substance of testimonial statements” by a CI,
such testimony violated the Confrontation Clause despite the absence of direct
statements by the CI. We are unpersuaded by Defendant’s argument in this regard and
consider the authorities Defendant cites in support thereof to be distinct from the instant
case. For example, Defendant cites Gray v. Maryland, 523 U.S. 185, 196 (1998), for the
proposition that the Confrontation Clause prohibits the use of implied testimony of
absent declarants. There, a redacted version of a codefendant’s confession was
introduced into evidence, omitting the defendant’s name and including instead a blank
space or the word “deleted” where the name would have been.
Id. at 188. While we
agree with the United States Supreme Court’s reasoning that the type of inferences at
issue in Gray “involve statements that, despite redaction, obviously refer directly to
someone, often obviously the defendant,” we cannot overlook the distinct fact that a
statement was entered into evidence in the form of the codefendant’s confession.
Id. at
196. Here, there was no such comparable statement by the CI that was entered into
evidence.
{10} Defendant further cites United States v. Meises, 645 F.3d 5 (1st Cir. 2011), and
United States v. Jones,
930 F.3d 366 (5th Cir. 2019), for the proposition that a
Confrontation Clause violation may arise from law enforcement testimony that
substantively—even if not explicitly—refers to statements made by an absent declarant.
In both cases, law enforcement testimony described tips received from CIs regarding
alleged crimes that were committed by the defendants, who were directly identified by
the CIs as having committed the alleged crimes. See Meises,
645 F.3d at 21; Jones,
930 F.3d at 376. In Meises, the law enforcement agent testified that the CI identified the
defendants as having participated in the drug deal.
645 F.3d at 21. In Jones, the law
enforcement agent “testified that he knew that [the defendant] had received a large
amount of methamphetamine because of what the CI told him he heard from others.”
930 F.3d at 376. Here, on the other hand, the CI’s information provided to law
enforcement did not explicitly incriminate Defendant as having actually committed the
crime at issue—that is, distributing narcotics, but rather explained the context for law
enforcement’s investigation.
{11} As further stated in Jones, “[t]estifying officers may refer to out-of-court
statements to provide context for their investigation or explain ‘background’ facts, so
long as the out-of-court statements are not offered for the truth of the matter asserted
therein, but instead for another purpose: to explain the officer’s actions.” Id. at 377
(internal quotation marks and citation omitted); see also
id. (emphasizing that “when
such evidence comes into play, the prosecution must be circumspect in its use, and the
trial court must be vigilant in preventing its abuse” and noting that “[s]tatements
exceeding the limited need to explain an officer’s actions can violate the Sixth
Amendment—where a nontestifying witness specifically links a defendant to the crime”
(alteration, internal quotation marks, and citations omitted)). We conclude the
challenged portions of the officers’ testimony in the instant case fit into this type of
permissible reliance on out-of-court statements by CIs, given the nonspecific nature of
the testimony at issue, which focuses generally on the function of controlled buys and
the manner in which law enforcement relies on CIs. Therefore, even though Jones and
Meises establish that implied statements may in certain circumstances result in
Confrontation Clause violations, we conclude that the implied statements in the instant
case are wholly distinct from the implied statements in such cases and do not constitute
Confrontation Clause violations. 2
{12} We turn now to Defendant’s argument that the above testimony of Officers Rains
and Montes constituted inadmissible hearsay. “Hearsay” is defined as “a statement that
. . . the declarant does not make while testifying at the current trial or hearing,” and that
“a party offers in evidence to prove the truth of the matter asserted in the statement.”
Rule 11-801(C) NMRA. Just as a Confrontation Clause violation requires an out-of-court
testimonial statement by an unavailable declarant, see Navarette, 2013-NMSC-003, ¶ 7,
so does the hearsay rule, which then requires the out-of-court statement to have been
offered to prove the truth of the matter asserted. Here again, however, the officers’
testimony did not repeat any out-of-court statements by the CI—the would-be declarant.
Without repeating an actual statement made by the CI, neither officers’ testimony
constitutes hearsay, and we conclude the district court did not err in overruling
Defendant’s objections on such basis. Our above conclusions regarding Defendant’s
Confrontation Clause and hearsay assertions as well preclude further review of
Defendant’s argument regarding prejudicial constitutional error, given that such
argument rests also upon his assertion of error related to the admission of the Officers’
testimony regarding the CI. Finding no such error, we decline to consider this argument
further.
{13} We next briefly address Defendant’s argument that the district court erred in
denying his motion to exclude the officers’ testimony as a discovery sanction. “Trial
courts possess broad discretionary authority to decide what sanction to impose when a
discovery order is violated.” State v. Le Mier, 2017-NMSC-017, ¶ 22,
394 P.3d 959.
“The propriety of a trial court’s decision to exclude or not to exclude witnesses is
reviewed for abuse of discretion.”
Id. “An abuse of discretion occurs when the ruling is
clearly against the logic and effect of the facts and circumstances of the case. We
cannot say the trial court abused its discretion by its ruling unless we can characterize it
as clearly untenable or not justified by reason.”
Id. (internal quotation marks and citation
omitted). “In reviewing the district court’s decision, [the appellate c]ourt views the
2We note that our conclusion in this regard is in part additionally informed by Defendant’s decision not to
raise on appeal arguments regarding prosecutorial misconduct or sufficiency of the evidence, which
would have (1) afforded us the opportunity to examine the prosecutor’s statements during opening and
closing arguments, which are not evidence, see State v. Cordova,
2014-NMCA-081, ¶ 14,
331 P.3d 980
(“[A]rgument of counsel is not evidence.”); and (2) allowed us to examine whether the State had
adequately proven the intent element of the charged crime of possession with an intent to distribute,
which was ostensibly only supported by the testimony of law enforcement and references to the
controlled buys conducted with the CI. See State ex rel. Hum. Servs. Dep’t v. Staples,
1982-NMSC-099,
¶¶ 2-3,
98 N.M. 540,
650 P.2d 824 (cautioning that an appellate court should not reach issues that the
parties have failed to raise in their briefs). On the other hand, we do not intend to endorse the litigation
approach taken by the prosecutor here. Having inferred that the informant would play no role in the
testimony, the prosecutor used what can be viewed as sleight of hand to use the circumstance of the buy
the officers set up to prove intent. We consider the approach to be unduly sharp practice.
evidence—and all inferences to be drawn from the evidence—in the light most favorable
to the district court’s decision.”
Id.
{14} While Defendant contends that the district court abused its discretion by denying
his motion to exclude the officers’ testimony regarding the CI, under a theory that
testimony related to the CI curtailed Defendant’s ability to present his planned defense,
following our own review of the record and briefing herein, we conclude there to be no
error in the district court’s denial of such motion. Indeed, we credit the district court’s
observation that defense counsel was made aware of Officer Rains’ testimony to the
grand jury regarding the CI, and that Defendant therefore had reasonable notice that the
State may elect at trial to pursue a theory based upon such information and present
evidence in support thereof. We discern no error in the district court’s refusal to exclude
testimony as a discovery sanction.
{15} Defendant’s final argument—that he was deprived of reasonable notice regarding
the State’s theory of the case—is for similar reasons unavailing. 3 As stated, Defendant
knew of the CI’s involvement disclosure by the State to him of the grand jury
proceedings and, therefore, had notice that the State might well elect to pursue a theory
of prosecution that incorporated this aspect of its investigation. Defendant fails to
demonstrate that the district court erred in its ruling in this regard.
CONCLUSION
{16} For the above reasons, we affirm.
{17} IT IS SO ORDERED.
J. MILES HANISEE, Chief Judge
WE CONCUR:
MEGAN P. DUFFY, Judge
MICHAEL D. BUSTAMANTE, Judge
retired, sitting by designation
3Despite asserting that the State deliberately suppressed further evidence regarding the confidential
informant, Defendant does not claim prosecutorial misconduct, and we will not make such an argument
on his behalf. See Staples, 1982-NMSC-099, ¶¶ 3, 5 (stating that “courts risk overlooking important facts
or legal considerations when they take it upon themselves to raise, argue, and decide legal questions
overlooked by the lawyers who tailor the case to fit within their legal theories” (alteration, internal
quotation marks, and citation omitted)).
