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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                            NO. 33,488

 5 CHARLES LOPEZ,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
 8 Donna J. Mowrer, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Santa Fe, NM

14 Steven J. Forsberg, Assistant Public Defender
15 Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 ZAMORA, Judge.
 1   {1}   Defendant has appealed from a conviction for trafficking a controlled

 2 substance. We previously issued a notice of proposed summary disposition in which

 3 we proposed to uphold the conviction. Defendant has filed a memorandum in

 4 opposition. After due consideration, we remain unpersuaded. We therefore affirm.

 5   {2}   The pertinent background information was previously set forth in the notice of

 6 proposed summary disposition. We will avoid undue reiteration here, focusing

 7 instead on the content of the memorandum in opposition.

 8   {3}   Defendant renews his challenge to the admissibility of a video recording of a

 9 controlled buy. Insofar as this issue was originally presented by reference to our

10 “silent witness” jurisprudence, we originally proposed to affirm on grounds that the

11 State made an adequate foundational showing, see generally State v. Glen Slaughter

12 & Assocs., 1994-NMCA-169, ¶¶ 5-6, 119 N.M. 219, 889 P.2d 254, and on grounds

13 that in the absence of audio content, concerns would not arise under the Confrontation

14 Clause. In his memorandum in opposition Defendant now indicates that there was

15 some audio content. [MIO 1] However, this does not alter our assessment. With

16 respect to the audible content of the recording, we note that “[d]efendant’s own

17 statements . . . were non-testimonial and [as such, their admission does] not violate the

18 Confrontation Clause.” State v. Telles, 2011-NMCA-083, ¶ 19, 150 N.M. 465, 261

19 P.3d 1097; see also State v. Hernandez, 2009-NMCA-096, ¶¶ 7, 16, 147 N.M. 1, 216


                                               2
 1 P.3d 251 (recognizing that a defendant’s own admissions generally do not present

 2 Confrontation Clause concerns as long as they are authenticated and admitted through

 3 a proper vehicle). To the extent that Defendant and the confidential informant “talked

 4 freely with one another without police questioning,” we similarly posit that any

 5 audible statements by the confidential informant were non-testimonial for

 6 Confrontation Clause purposes, notwithstanding the clandestine recording. Telles,

 7 2011-NMCA-083, ¶ 20. Nor do hearsay concerns arise. Defendant’s own statements

 8 would fall within the exception for admissions by a party. See generally Rule

 9 11-801(D)(2)(a) NMRA (stating that a party’s own admission is admissible

10 non-hearsay); see also Telles, 2011-NMCA-083, ¶ 24 (recognizing that a defendant’s

11 own statements in recorded conversations implicating himself in criminal conduct

12 were properly admitted under Rule 11-801(D)(2)(a)). Similarly, any recorded

13 statements by the confidential informant would appear to have been admissible to

14 provide context. See Telles, 2011-NMCA-083, ¶ 24; see also State v.

15 Castillo-Sanchez, 1999-NMCA-085, ¶ 23, 127 N.M. 540, 984 P.2d 787 (recognizing

16 that the other party’s statements in a conversation containing an admission by the

17 defendant were admissible since they were necessary to put the defendant’s statements

18 in context). As such, we remain unpersuaded that the admission of the recording was

19 erroneous.


                                             3
 1   {4}   Defendant also renews his challenge to the fundamental fairness of the trial,

 2 based on the State’s failure to secure the appearance of the confidential informant as

 3 a witness. [MIO 2-3] In the notice of proposed summary disposition we suggested that

 4 Defendant should have subpoenaed the witness if he wished to ensure her appearance.

 5 Defendant asserts that insofar as he lacked a current address, this was not a viable

 6 avenue. [MIO 2-3] Assuming this to be true, we remain unpersuaded that the

 7 prosecutor violated his or her duty to see that Defendant received a fair trial. Insofar

 8 as the State did not require her testimony, the State was under no obligation to call her

 9 as a witness, and Defendant had no right to cross-examine her. See State v. Savage,

10 1992-NMCA-126, ¶ 12, 115 N.M. 250, 849 P.2d 1073 (observing that a defendant had

11 no right to cross-examine a confidential informant who did not appear as a witness).

12 Moreover, as we previously observed, Defendant has failed to establish that the

13 State’s conduct prejudiced him. See generally State v. Glasgow, 2000-NMCA-076,

14 ¶ 14, 129 N.M. 480, 10 P.3d 159 (“[T]he right to a fair trial is not impaired unless the

15 defendant can show prejudice.”), overruled on other grounds by State v. Tollardo,

16 2012-NMSC-008, 275 P.3d 110.

17   {5}   Accordingly, for the reasons stated above and in the notice of proposed

18 summary disposition, we reverse and remand for further proceedings.

19   {6}   IT IS SO ORDERED.


                                               4
1                                      _______________________________
2                                      M. MONICA ZAMORA, Judge

3 WE CONCUR:


4 __________________________________
5 MICHAEL D. BUSTAMANTE, Judge


6 __________________________________
7 JONATHAN B. SUTIN, Judge




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