State v. Hernandez

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOSEPH HERNANDEZ, Defendant-Appellant,STATE OF NEW MEXICO, Plaintiff-Appellee, v. CATHERINE HERNANDEZ, Defendant-Appellant.

NO. 32,109

NO. 32,110

NO. 32,170

COURT OF APPEALS OF THE STATE OF NEW MEXICO

November 19, 2014

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Michael E. Vigil, District Judge

Gary K. King, Attorney General

Margaret McLean, Assistant Attorney General

Santa Fe, NM

for Appellee

Aaron J. Boland, P.C.

Aaron J. Boland

Santa Fe, NM

for Appellant Joseph Hernandez

Aarons Law Firm PC

Stephen D. Aarons

Santa Fe, NM

for Appellant Catherine Hernandez

MEMORANDUM OPINION

KENNEDY, Chief Judge.

{1} Joseph Hernandez and Catherine Hernandez, a husband and wife, (collectively, Defendants) were convicted of Medicaid fraud and falsification of documents following a jury trial. Defendants had testified before the grand jury that indicted them. At the time, Defendants were both represented by the same attorney. Following indictment, Joseph was compelled by the district court to retain other counsel. Defendants waived any conflict that might have arisen from the joint representation. No motion to sever was ever pursued to a ruling by Defendants, although severance appeared as an alternative remedy in a motion filed after the jury had been picked. Defendants were tried together. During the trial, the Stateintroduced Defendants' grand jury testimony over the objection of Defendants, who asserted their rights under Bruton v. United States, 391 U.S. 123 (1968). We will further develop the relevant facts as we address each issue in turn, as we will address Defendants' remaining issues. Defendants' appeals are consolidated for this Opinion. Defendants' briefs are virtually identical, and the issues presented are verbatim in each. We ultimately find no error in the district court's rulings and, therefore, affirm.

I. DISCUSSION

A. Defendants' Motion in Limine Did Not Preserve the Bruton Issue for Appeal

{2} After jury selection and prior to the jury being sworn, Defendants filed their motion in limine to exclude the statements of Joseph under Bruton. The motion asserts that some prosecution exhibits "contain statements by [Joseph] that the government believes inculpate . . . Catherine." The motion specifies no particular objectionable statements and states no more than "[i]t is not clear at this time whether the prosecution intends to introduce any statements by . . . [Joseph] but, if they do so, counsel intends to raise this motion again orally to deal with the specific statement being introduced."

{3} The motion concludes by requesting alternative relief that (1) "any statements by . . . [Joseph] as substantive evidence in the prosecution case-in-chief" be excluded, (2) the trials be severed, or (3) the district court "grant a limiting instruction" to theeffect that any statement by Joseph was not admitted evidence against the non-declarant and could not be considered as such. Defendants' appeal addresses neither any denial of severance nor a limiting instruction, and we will not discuss them further. Additionally, Defendants do not raise, and we do not consider, any other objections to introduction of the grand jury testimony than those based on Bruton and the Confrontation Clause.

{4} Ordinarily,"including the terms 'Bruton' and 'Confrontation Clause' in [the defendant's] objections, . . . effectively put the court on notice of the specific nature of [the] objection and the impropriety of allowing a joint trial where the statements of [the] co[-]defendants would be offered as evidence." State v. Lopez, 2007-NMSC-037, ¶ 16, 142 N.M. 138, 164 P.3d 19. Such statements alone might therefore suffice to preserve the issue. However, "the manner in which the relief is requested and the nomenclature used is not significant. . . . The substance of the motion, not its title, controls." State v. Paiz, 2011-NMSC-008, ¶ 31, 149 N.M. 412, 249 P.3d 1235 (alteration, internal quotation marks, and citations omitted). Discussions of the grand jury testimony produced nothing more than cursory references to "Bruton issues" and never included subsequent references to specific statements.

{5} Defendants' motion serves as no more than a notice of impending objections yet to be made. The motion identifies no specific statement or evidence with whichit is concerned, save any statements by a co-defendant. Such statements, as explained below, are an overbroad and ineffective invocation of Bruton. At the time the motion first arose for hearing, counsel for Joseph stated to the court that there existed "sort of a Bruton issue. I don't know if they're going to introduce documents that were stated by one person as opposed to the other." The district court pointed out that, prior to the jury being sworn, "it's a little late to be filing Bruton motions; I mean that should've been the basis for some motion to sever." The district court concluded: "If any Bruton issues come up, let me know."

{6} The State subsequently indicated that it intended to introduce documents prepared for Medicaid reimbursement by Catherine, as well as both Defendants' grand jury testimony, to which defense counsel stated: "We'll object. I guess we'll just say same objection." The district court responded that Defendants would have to "develop the argument" to explain why the "Bruton issues" had not been raised earlier, suggested that there might be a waiver issue because of the lateness of the motion, and concluded that, if problems were not anticipated, it might be "a different story." Defense counsel responded by pointing out that Defendants were "given the grand jury testimony, and I was there for both of them, so it's not like a surprise." The district court concluded: "There may be issues. OK, we'll deal with them as we get to them. Anything else?" Defense counsel replied: "Not at this time."

{7} Defendants' assertion that the district court ruled on the admissibility of the testimony seems overblown. The conversation quoted above is hardly a development of the issues. The district court clearly stated that defense counsel would have to develop his argument and that it did not have enough information to decide the Bruton issue. Defendants did not pursue the issue. The implication, therefore, is that Defendants' motion was both contingent and insufficient to preserve the issue for appeal.

{8} Given the contingent nature of the motion, any claim that the motion or Defendants' pretrial argument preserves the issue for appeal must fail. See Rule 12-216(A) NMRA ("To preserve a question for review[,] it must appear that a ruling or decision by the district court was fairly invoked[.]"); see also State v. Vandenberg, 2003-NMSC-030, ¶ 52, 134 N.M. 566, 81 P.3d 19 ("In analyzing preservation, we look to the arguments made by [the d]efendant below."); State v. Jacobs, 2000-NMSC-026, ¶ 12, 129 N.M. 448, 10 P.3d 127 ("In order to preserve an issue for appeal, it is essential that a party must make a timely objection that specifically apprises the [district] court of the claimed error and invokes an intelligent ruling thereon."). Defendants' motion consisted of nothing but a general objection to "any statements by . . . [Joseph] as substantive evidence in the prosecution case-in-chief[.]" Furthermore, it was contingent on the State's belief that the statements wereinculpatory. This is insufficient to apprise the court of any problems capable of resolution. We therefore hold that the motion in limine did not preserve the issue.

{9} Defendants exacerbate the motion's failings by making no reference to any other objection to any specific statement made by either Defendant, which inculpated the other. Because the motion fails to preserve the Bruton issue, Defendants must demonstrate that individual objections made during trial, to specific evidence and sufficiently preserved, can satisfy the standard for preservation. Defendants incorrectly insist that "any statements" by co-defendants implicate Bruton, and we must therefore clarify what sort of statements might implicate Bruton.

B. A Bruton Violation Requires More Than Just a Co-Defendant's Statement

{10} Any analysis of a Bruton issue, due to a Confrontation Clause violation, or the denial of a motion to sever because of the admissibility of co-defendants' statements, must begin by examining the statements themselves followed by an examination of their impact. See Lopez, 2007-NMSC-037, ¶ 17 (conducting an analysis of a co-defendant's statements and then assessing the impact those statements had on the jury).

{11} While Bruton applies only to testimonial statements, State v. Gurule, 2013-NMSC-025, ¶ 40, 303 P.3d 838, and testimony before a grand jury is unequivocally testimonial, Crawford v. Washington, 541 U.S. 36, 68 (2004), Defendants acknowledge that statements that are not inculpatory of the complainingdefendant do not implicate Bruton. See Bruton, 391 U.S. at 137 (holding that statements offended the Confrontation Clause when they implicated the defendant); see United States v. Clark, 717 F.3d 790, 814 (10th Cir. 2013) ("Bruton's rule is a narrow one; it applies only when the co-defendant's statement is so inculpatory as to the defendant that the practical and human limitations of the jury system cannot be ignored." (internal quotation marks and citation omitted)). Additionally, the Bruton rule does not apply to a statement that is not "incriminating on its face, and [becomes] so only when linked with evidence introduced later at trial." Richardson v. Marsh, 481 U.S. 200, 208 (1987).¹

{12} While the Bruton court...