Gonzales v. Garcia

ANDREW GONZALES, Petitioner, v. JOSEPH GARCIA, et al, Respondent.

1:13-cv-00616-LH-LF

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

May 26, 2016

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER comes before the Court on remand from the Tenth Circuit (Doc. 46-1) to consider the merits of Andrew Gonzales's amended petition for habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 9). Senior District Judge C. LeRoy Hansen referred this matter to me pursuant to the provisions of 28 U.S.C. §§ 636(b)(1)(B), (b)(3), and Virginia Beach Fed. Sav. & Loan Ass'n v. Wood, 901 F.2d 849 (10th Cir. 1990), to recommend to the Court an ultimate disposition of the case. Doc. 73. Having reviewed the submissions of the parties and the record, I find that the state trial court violated Gonzales's Sixth Amendment right to confront the witnesses against him. I therefore recommend that the Court grant Gonzales's amended petition for a writ of habeas corpus and vacate his state court conviction.

I. Background Facts and Procedural Posture

On August 23, 2011, a jury found Gonzales guilty of driving while under the influence of intoxicating liquor and/or drugs in violation of NMSA 1978, § 66-8-102(D)(3) ("DWI"). Doc. 66 at 124. Deputy Kevin Bell arrested Gonzales for DWI in January of 2011, following a report of a vehicle weaving across the roadway and traveling at excessive speeds. Id. at 38-40. Deputy Bell located the vehicle and observed Gonzales operate the vehicle and exit from the driver's side. Id. at 40-41. When he encountered Gonzales, Deputy Bell noticed that Gonzales showed signs of intoxication. Id. at 41. Deputy Bell conducted field sobriety tests and determined that he had probable cause to arrest Gonzales for DWI. Id. at 42-45. Following the arrest, Gonzales refused to perform an alcohol breath test. Id. at 47. Deputy Bell then obtained a blood sample which was sent to the New Mexico Scientific Laboratory Division ("SLD"). Id. at 48-52.

Before trial, the state requested that the court permit the SLD analyst to testify live via video at the trial. Doc. 62-1 at 1-3. The state argued that because of the significant number of DWI cases in New Mexico that required a blood draw, it was difficult for SLD witnesses to appear at all necessary hearings, and that as a cost saving measure it would be "economically responsible and prudent" to allow the testimony by video. Id. at 1. The state noted that it "presumed" that Gonzales opposed the motion. Id. at 2. Two days later, and with no response from Gonzales, the court granted the motion. Id. at 4. The court did not make any specific findings or provide any reasoning for granting the motion. Id.

During trial, Anna Isabella Valdez, a forensic toxicologist with SLD, testified live via video. Doc. 66 at 79-80. Although she was not in the courtroom, Ms. Valdez testified under oath, she could see Gonzales and his counsel, and they could see her. Id. at 80-81. The jury also was able to see Ms. Valdez as she testified. Id. at 81. Ms. Valdez testified that she tested Gonzales's sample for blood alcohol concentration ("BAC"). Id. at 81-82, 85-90. Gonzales's "blood results were 0.14 grams per 100 milliliters of alcohol concentration in the sample." Id. at 90. Gonzales's counsel cross-examined Ms. Valdez at the trial. Id. at 91-92.

At the conclusion of the trial, the court instructed the jury as follows:

For you to find the Defendant guilty of driving with a blood alcohol concentration of 8/one hundredths, .08 or more, as charged in Count One, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. That Defendant operated a motor vehicle.

2. Within three hours of driving the Defendant had an alcohol concentration of 8/one hundredths, .08 grams or more in 100 milliliters of blood and the alcohol concentration resulted from alcohol consumed before or while driving the vehicle.

3. This happened in New Mexico on or about the 8^th day of January 2011.

Id. at 107-08. The jury found Gonzales guilty, and the court sentenced him to three years in prison. Id. at 124-25.

While Gonzales was serving his sentence, he filed the instant application for a writ of habeas corpus. Doc. 9. During the pendency of this case, Gonzales was released from custody. See Doc. 34-1 (showing that Gonzales was released on October 28, 2013). The Court determined that Gonzales's application was moot and dismissed his petition. Doc. 79. On appeal, the Tenth Circuit held that the district court erred "because the court did not apply the presumption of collateral consequences arising from Gonzales's conviction and mistakenly assumed that the only relevant collateral consequences derived from the New Mexico DWI statute, N.M. Stat. § 66-08-102, under which Gonzales was convicted." Doc. 46-1 at 2. Accordingly, the Tenth Circuit remanded the case to the district court with instructions to vacate the dismissal of Gonzales's habeas petition. Id.

Following the mandate of the Tenth Circuit, the parties submitted a joint status report advising the Court that only two issues remained for the Court's consideration: Ground Two, regarding the Confrontation Clause violation; and a sub-claim of Ground One, regarding the sufficiency of evidence. Doc. 57 at 2. Because I recommend that the Court grant Gonzales'spetition based on a violation of his Sixth Amendment right to confront witnesses, the Court need not address the second issue regarding the sufficiency of evidence.¹

II. Legal Standards

The provisions of 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214 ("AEDPA"), govern this case. A petition for habeas corpus under § 2254 attacks the constitutionality of a state prisoner's conviction and continued detention. A federal court cannot grant habeas relief pursuant to § 2254(d) with respect to any claim adjudicated on the merits by a state court unless the petitioner's state-court proceeding:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). For federal habeas claims not adjudicated on the merits in state courts, the Court must review the claim de novo, and the deferential standards of § 2254(d) do not apply. Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).

The state court did not adjudicate the merits of Gonzales's Sixth Amendment Confrontation Clause claim. Gonzales appealed his conviction to the New Mexico Court of Appeals ("NMCA"). Doc. 14-1 at 6-8. Although he raised the "sufficiency of evidence" issue in his docketing statement, he did not raise an issue under the Confrontation Clause. Id. at 9-13. Following a notice of proposed summary affirmance, Gonzales sought leave to amend hisdocketing statement to add the Confrontation Clause issue. Id. at 18-19. The NMCA denied Gonzales's motion to amend and, therefore, did not address whether the trial court had violated Gonzales's Sixth Amendment rights.² Id. at 47-51. Gonzales then sought a petition for a writ of certiorari from the New Mexico Supreme Court, which the court denied. Id. at 52-62. Because the state court did not address the merits of Gonzales's Sixth Amendment right to confront witnesses, the Court reviews Gonzales's Confrontation Clause claim de novo.

III. Sixth Amendment Right to Confrontation

Gonzales contends that the state court violated his Sixth Amendment right to confront witnesses when it allowed the SLD analyst, Ms. Valdez, to testify by video. The Confrontation Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. TheSixth Amendment "reflects a preference for a face-to-face confrontation at trial," but that preference "must occasionally give way to considerations of public policy and the necessities of the case." Maryland v. Craig, 497 U.S. 836, 849 (1990). The Confrontation Clause may be satisfied absent a physical, face-to-face confrontation at trial only where: 1) denial of such confrontation is necessary to further an important public policy; and 2) the reliability of the testimony is otherwise assured. Id. at 850. The trial court must make a case-specific finding that there is a necessity to further an important public policy. Coy v. Iowa, 487 U.S. 1012, 1021 (1988); Craig, 497 U.S. at 860; United States v. Carrier, 9 F.3d 867 (10th Cir. 1993) (affirming the district court's decision to allow testimony by two-way circuit television because the district court made specific findings that the procedure was necessary to protect the welfare of a child witness). The reliability of testimony is "otherwise ensured:" 1) where the testimony is given under oath; 2) there is the opportunity for cross-examination; 3) the fact-finder has the ability to observe the demeanor of the witness; and 4) there is a reduced risk that a witness will wrongfully implicate an innocent defendant when testifying in his presence. Craig, 497 U.S. at 845-46.

Here, the reliability of the testimony was ensured because Ms. Valdez testified under oath, she was able to see the defendant and his counsel, the jury could observe her demeanor on the screen, and the defense had the opportunity to cross examine her in front of the jury. Doc. 66 at 80-81, 91-93. However, the trial judge did not make specific findings that the video testimony was necessary to further an important public policy. In its pretrial motion requesting that the court allow video testimony, the government argued that "[d]ue to the significant number of DWI's in New Mexico, specifically those requiring a blood draw to confirm intoxication of a particular driver, it is...