                IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMSC-028

Filing Date: May 26, 2009

Docket No. 30,741

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ROBERT MACIAS,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Joe Parker, District Judge

Klipstine, Fredlund & Bowling, L.L.C.
James W. Klipstine, Jr.
Hobbs, NM

for Appellant

Gary K. King, Attorney General
Ralph E. Trujillo, Assistant Attorney General
Santa Fe, NM

for Appellee

                                        OPINION

CHÁVEZ, Chief Justice.

{1}     Defendant Robert Macias was convicted of first degree murder (willful and
deliberate) and shooting at a motor vehicle resulting in great bodily harm. He appealed to
this Court, claiming, among other things, that “[t]he trial court admitted . . . out-of-court
statements contained in recorded calls when there was no foundation establishing any
exception to the [hearsay] rule[s] of exclusion.” Because we conclude that the trial court
erred in admitting the hearsay statements and that the error was not harmless, we vacate
Defendant’s convictions and remand for a new trial.

                                             1
BACKGROUND

{2}    In the early morning hours of January 15, 2006, police discovered the body of
Wilfred Salas, Jr. in his crashed car while responding to reports of gunshots and a car
accident. A medical investigator testified at trial that Salas had been killed by a single
gunshot to the head. Defendant was charged in the alternative with first degree willful and
deliberate murder or felony murder, contrary to NMSA 1978, Sections 30-2-1(A)(1) and (2)
(1994), respectively, and shooting at a motor vehicle resulting in great bodily harm, contrary
to NMSA 1978, Section 30-3-8(B) (1993).

{3}     At trial, the District Attorney introduced a number of recorded phone calls placed by
various inmates at the Curry County Jail. Among them was a call placed on January 15,
2006 at 2:35 p.m. from Eric Gutierrez, then incarcerated at the Curry County Jail, to his
cousin, Jessica Gutierrez. The State does not contend that either Eric or Jessica witnessed
or were involved in the shooting. The State introduced the transcript of their phone call into
evidence because it contains several statements by Jessica incriminating Defendant. The
admission of these statements into evidence is the focus of Defendant’s hearsay argument.

{4}      The January 15 phone call was first brought before the jury during Eric’s direct
examination by the District Attorney. Jessica had not yet testified. After briefly establishing
that Eric was acquainted with Defendant and Jessica, the District Attorney asked Eric
whether he recalled making a call to Jessica “on January 15, 2006 at 2:29 p.m.” When Eric
denied any recollection of the phone call, the District Attorney marked the CD recording of
the call as State’s Exhibit 90 and prepared to distribute a transcript to the jury. Defendant’s
attorney objected that the call contained inadmissible hearsay. In sidebar, the attorneys
argued over whether the call fell under the business records exception. The judge
interjected:

       Here’s what I think I need to have. I think I need to have you ask this
       witness if he has recollection, if he has recall about what the topic would
       have been. And then he says no. That’s the position, then you would say if
       I share with you this paragraph of this transcript, would you remember? And
       then you play the recording if he doesn’t concede to it.

{5}     Defendant’s attorney continued to object to the use of the transcript of the entire
phone conversation, and the District Attorney insisted that he did not intend to offer the
transcript into evidence. Despite defense counsel’s ongoing concerns, the judge ruled that
the District Attorney would be allowed to play the CD if the witness denied having memory
of the call and also allowed the transcript to be put before the jury. The judge allowed
Defendant to make a record and then terminated the sidebar. The District Attorney
continued:

       District Attorney: Mr. Gutierrez, as I mentioned, do you recall the telephone
       call on January 15, 2006, at 2:35 pm?

                                              2
       Eric Gutierrez: No.

       District Attorney: Would it assist you if we played the phone call?

       Eric Gutierrez: I mean, I don’t remember how it would assist me, but I don’t
       know how it would assist me.

       District Attorney: If you heard the telephone call, would your memory be
       refreshed?

       Eric Gutierrez: As in--well actually, I heard it the other day on Sunday when
       you all played it for me.

       District Attorney: And then who called you?

       Eric Gutierrez: Jessica I think was calling me at that time.

       District Attorney: And do you recall what you first said?

       Eric Gutierrez: Something about a football game--I don’t remember, I think.

       District Attorney: Your honor, may I use, as we discussed this to refresh
       recollection?

       Judge: You may.

{6}    At this point, transcripts of the phone call were distributed to the jury. The District
Attorney then began playing the phone call and Defendant’s attorney quickly interrupted:

       Defense attorney: [inaudible] play the entire telephone conversation?

       Judge: I’m supposing he’s got it cued to a spot where you’re going to have
       something that is going to remind you of that or remind this gentleman of
       that phone call?

       District Attorney: Your honor, I could stop every sentence, and ask him if
       he remembers what he said next, or as we’ve discussed, I could just, I could
       play the phone call in its entirety, which is approximately two minutes, two
       and a half minutes.

       Defense attorney: Judge, I thought the court had ruled that--

       Judge: I’m going to try this one call at two minutes--let’s try this one call.


                                              3
{7}     The District Attorney proceeded to play the entire phone call between Eric and
Jessica. During the call, Jessica informed Eric that police had just arrived across the street
to arrest Defendant for killing the victim the night before.1 The following exchange took
place early in the call:

       Eric Gutierrez: [Inaudible] who would have shot him, they don’t know?

       Jessica [Gutierrez]: Yeah, they know, that’s, they’re here for, looking for
       him.

       Eric Gutierrez: They think it was him, or what?

       Jessica [Gutierrez]: Uh, it was, well, yeah, it was.

       Eric Gutierrez: Uh uh?

       Jessica [Gutierrez]: Mmm hmm.

       Eric Gutierrez: Who told?

       Jessica [Gutierrez]: I don’t know. (same time) This is just last night.

       Eric Gutierrez: (same time) Verga.

       Jessica [Gutierrez]: Cause he called me like at two o’clock this morning and,
       and I talked to him right quick and he scared me so I got that one thing,
       remember that thing you, that you had put away?

{8}     The call proceeded with Jessica explaining her understanding of the events that led
to the shooting, including the following passages:

       Eric Gutierrez: Where’d he shoot him at, in the head, or what?

       Jessica [Gutierrez]: The, I guess in the back. Shot him in the back. In the
       back of the head. Got him in the back of the head.

       Eric Gutierrez: But you know it was him though?

       Jessica [Gutierrez]: Yeah.


       1
       Although Defendant is not named during the call, other testimony made it
abundantly clear that Jessica and Eric were discussing Defendant, and the District Attorney
made this inference explicit in his closing argument.

                                              4
       ...

       Eric Gutierrez: Were there, was there any witnesses?

       Jessica [Gutierrez]: Uh, nah, he said that he, he told me that nobody, the only
       one that was with him was Fat Ass and that Fat Ass was all scared, too.

{9}     Immediately after the recording was played, the defense attorney moved for a mistrial
on the grounds that “this evidence is of such a prejudicial nature that it cannot be stricken
from the jury’s mind.” The judge refused to grant the motion, explaining, “I’m not desirous
of granting a mistrial at all, but I’m not going to have any more tapes like that when I had
pictured somehow there would be a question, an errant answer, and then an impeachment
by the language of the transcript.”

{10} The District Attorney proceeded, asking Eric, “in the transcript, when you ask, ‘they
think it was him, or what?’ and she said ‘well, yes, it was,’ and you said ‘huh?’ Who at that
point did you think she was talking about?” Eric again explained that he did not recall the
conversation. A few minutes later, the District Attorney asked, “When you ask sir, ‘were
there, was there any witnesses?’ and she said, ‘uh, nah, he said that he, he told me that
nobody, the only one that was with him was Fat Ass and that Fat Ass was all scared, too.’
And who is that?” Again, Eric did not remember.

{11} Later in his examination of Eric, the District Attorney, while responding to
additional hearsay objections to different phone calls, explained his general outlook on the
use of the phone calls:

       As damning as they may be, [the phone calls] speak the truth. These phone
       calls speak the truth. Okay. To play them--that’s why we’re asking. All
       these people on here testified or are testifying. It’s not an out-of-court
       statement. We offer that there’s an exception to hearsay-- this is several
       things--present sense impression, many times excited utterance, there’s
       recorded recollections, record of regularly conducted activity. There’s five
       exceptions in the first--three exceptions in the first five minutes . . . .

The judge allowed the questioning to proceed and gave Defendant’s attorney a continuing
objection to the use of hearsay.

{12} On the next day of trial, the State called Jessica, the other party to the phone call. A
few minutes into his examination, after eliciting testimony that Jessica was in a relationship
with Defendant and had received a call from him on the night of the shooting, the District
Attorney asked Jessica if she recalled other telephone conversations made around that time.
Although Jessica conceded that it was her voice in the recordings that had been played for
her before trial, she denied having any recollection of the content of the conversations.
Defendant’s attorney interrupted: “Judge, so the record is clear, we have continuing

                                              5
objection as raised earlier in this proceeding to the introduction of hearsay statements made
out of court.” The objection was noted and the direct examination continued:

       District Attorney: Do you recall Mr. Gutierrez--Eric--your cousin, saying,
       “who would have shot him, they don’t know,” and you said, “yeah, they
       know, that’s, they’re here for, looking for him,” and Mr. Gutierrez saying,
       “they think it was him, or what?” and you said, “uh, yeah, well, it was.”

       Jessica Gutierrez: I was--I mean--I remember what they were telling him
       across the street, because you could hear them right then and there because
       that’s right across the street. You could hear everything they were saying to
       him when they were talking to him.

       District Attorney: You mean, you’re saying under testimony today that you
       could hear the police officers talking to the defendant during the phone
       conversation?

       Jessica Gutierrez: Right--they were right across the street outside--they
       weren’t inside the house, they were outside in the front yard.

       ...

       District Attorney [returning to the 3:35 p.m. phone call after a brief
       digression]: He says “they think it was him, or what?” and you said “uh,
       yeah, well, it was.”

       Jessica Gutierrez: I don’t remember--like I said, I don’t remember the phone
       calls. There was plenty of phone calls.

       ...

       District Attorney: Do you recall Mr. Gutierrez saying, “where’d they shoot
       him, in the head, or what?” Do you recall your response to him?

       Jessica Gutierrez: No. I’m telling you, I don’t remember the conversation.

       District Attorney: Do you recall saying, “I guess in the back. They shot him
       in, he shot him in the back. In the back of the head. Got him in the back of
       the head.” Mr. Gutierrez says, “but you know it was him, though?” and you
       said “yeah.” Do you recall that?

       [Silence]

       District Attorney: Do you recall Mr. Gutierrez asking if there was any

                                             6
       witnesses?

       Jessica Gutierrez: No.

       District Attorney: Do you recall your response to say, “uh nah, well he said
       that he, he told me that nobody, the only one that was with him was Fat Ass,
       and that Fat Ass was all scared, too.”

       Jessica Gutierrez: No, I don’t remember the conversation.

{13} After Jessica’s cross-examination, the District Attorney moved for the admission of
the recording of the call and requested that he be allowed to play it again on re-direct. He
argued that the call was admissible because “[t]he two parties have both already testified
about the phone call, they’ve both been subject to cross-examination. It was recorded from
the jail in the normal course of business. It defeats every, every hearsay objection . . . .”
Defendant’s attorney objected that the statements had already come in and that there was no
reason to send the recording to the jury, since it was “potentially prejudicial [inaudible]
evidence that he apparently did not examine the witness on. And if he wants to, on re-direct,
examine the witness about additional statements made in the conversation, he’s open to do
that. But there’s no reason to introduce the tape itself.” The judge admitted the call but
would not allow it to be played on re-direct.

{14} Having moved the recording of the call into evidence, the District Attorney played
it in its entirety during his closing argument. He reminded the jury that they would have the
CD during their deliberations. In fact, during deliberations a few hours later, the jury
specifically requested a CD player to listen to the call, couldn’t find one, and eventually
settled on using the transcript instead.

{15} Defendant now argues that the trial court erred in admitting the CD and transcript of
the telephone calls into evidence. We agree.

STANDARD OF REVIEW

{16} We review claims that a trial court erred in admitting evidence for abuse of
discretion. State v. McClaugherty, 2003-NMSC-006, ¶ 17, 133 N.M. 459, 64 P.3d 486. “A
trial court abuses its discretion when it exercises its discretion based on a misunderstanding
of the law.” State v. Lente, 2005-NMCA-111, ¶ 3, 138 N.M. 312, 119 P.3d 737.

THE COURT ERRED IN ADMITTING THE HEARSAY STATEMENTS IN THE
RECORDED PHONE CALLS

{17} The recording and transcript of the telephone conversation between Eric and Jessica
were admitted into evidence without limitation and despite Defendant’s hearsay objection.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial

                                              7
or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 11-801(C)
NMRA. Hearsay is not admissible except pursuant to an explicit exception in our court rules
or by statute. Rule 11-802 NMRA. Thus, we must determine whether any statements in the
phone call were hearsay, and if so, whether they fell under any exception to the hearsay rule.
The trial record does not clearly reveal the trial court’s specific reason for admitting the
statements, but we may uphold the judge’s decision if it was right for any reason. State v.
Boyett, 2008-NMSC-030, ¶ 25, 144 N.M. 184, 185 P.3d 355.

{18} For the purposes of our discussion, we focus on those out-of-court statements by
Jessica that had the potential to incriminate Defendant:

       “Uh, it was, well, yeah, it was [Defendant who shot the victim].”
       “The, I guess [Defendant shot the victim] in the back. Shot him in the back.
       In the back of the head. Got him in the back of the head.”

       “Uh, nah, [Defendant] said that he, he told me that nobody, the only one that
       was with him [at the time of the shooting] was Fat Ass and that Fat Ass was
       all scared, too.”

{19} Each of these statements was made out of court. The District Attorney insisted at
trial that the phone calls “speak the truth” and should be admitted for that reason.
Nevertheless, on appeal the State argues that the statements were not admitted for truth, but
for the purposes of impeachment or to refresh the witnesses’ memory. Neither explanation
is plausible, and even if they were, neither the CD nor the transcript should have been
provided to the jury during its deliberations for use as substantive evidence.

{20} With respect to the State’s claim that the phone call was used as impeachment
evidence, it is generally true that a witness’s prior inconsistent statements may be used to
cast doubt on the witness’s credibility. Rules 11-607, 11-613 NMRA; see also State v.
Hermosillo, 88 N.M. 424, 432, 540 P.2d 1313, 1321 (Ct. App. 1975) (noting that the
credibility of a witness is subject to “an attack by proof that the witness on a previous
occasion has made statements inconsistent with his present testimony.” (Hernández, J.,
dissenting) (internal quotation marks and citation omitted)). When impeaching with prior
inconsistent statements not made under oath, it is the fact of the inconsistency that is
admissible, not the substantive truth or falsity of the prior statement. See 3A John Henry
Wigmore, Evidence in Trials at Common Law § 1017, at 993 (James H. Chadbourn rev.
1970) (“We place [the witness’s] contradictory statements side by side, and, as both cannot
be correct, we realize that in at least one of the two he must have spoken erroneously. Thus,
we have detected him in one specific error, from which may be inferred a capacity to make
other errors.”); Rule 11-801(D)(1)(a) (providing an exclusion from the definition of hearsay,
not relevant to this case, which allows the admission as substantive evidence of a witness’s
prior inconsistent statements given under oath at a trial, hearing, or other proceeding, or in
a deposition). To accomplish impeachment by prior inconsistent statements, the attorney
must first elicit in-court testimony about a matter. If the testimony is inconsistent with a

                                              8
witness’s prior statement, the attorney confronts the witness with the prior statement. The
attorney must provide the witness with “an opportunity to explain and the opposite party an
opportunity to examine on the statement,” although not necessarily with any “specification
of any particular time or sequence” of the statement. State v. Dominguez, 2007-NMSC-060,
¶ 18, 142 N.M. 811, 171 P.3d 750 (internal quotation marks and citations omitted); see also
Rule 11-613(B) (making admission of extrinsic evidence of prior inconsistent statements
contingent upon the witness having an opportunity to explain the statements).

{21} The use of the taped phone conversation during the District Attorney’s direct
examination of Eric was not for impeachment purposes. The District Attorney began this
area of questioning by asking Eric whether he remembered calling Jessica on January 15,
2006. After Eric testified that he did not remember the telephone call and was uncertain
what was discussed, the District Attorney distributed a transcript to the jury and played the
recording of the phone call in its entirety. The District Attorney then proceeded to have Eric
attempt to interpret the meaning of Jessica’s statements. The District Attorney simply was
not impeaching Eric with a prior inconsistent statement, because Eric had not made a
statement in his testimony that could be impeached by the statements made in the call.2 See
State v. Spadafore, 220 S.E.2d 655, 656 (W. Va. 1975) (syllabus by the court) (“Prior
out-of-court statements may be used to impeach the credibility of a witness and a prior
inconsistent statement may be introduced concerning any specific matter about which the
witness has testified at trial; however, where the witness does not testify contrary to his prior
statement but demonstrates an absence of memory, such prior statement must be used
sparingly to demonstrate lack of integrity in the witness or the reason for surprise to the party
which calls him, but these legitimate purposes may not be used as a ruse for introducing
inadmissible evidence.”). Neither could the statements be used to impeach Jessica, who had
not yet testified when Eric took the stand. In any case, even if impeachment were proper,
the introduction of the entire call with its myriad hearsay statements would plainly be an
inappropriate undertaking, unless the hearsay itself were admissible. See McClaugherty,
2003-NMSC-006, ¶ 27 (finding error where “[t]he statements that were used by the State did
not serve only to impeach; they offered an admission by Defendant on an issue that was
highly disputed at trial[,]” but the admission was inadmissible.).

{22} The approach taken with Jessica was virtually identical to that taken with Eric. The
District Attorney’s direct examination concerning the call began with general questions
regarding whether Jessica remembered her telephone conversations in the days following
the shooting. Jessica indicated that she did not recall the content of the conversations. The
District Attorney then read from a transcript of the January 15 phone call, asking Jessica if
she recalled the specifics of the conversation. As with Eric, the District Attorney’s
questioning cannot fairly be characterized as an impeachment of the witness with a prior
statement. In any event, the recording and transcript of statements used to impeach should


        2
         In fact, in his response just preceding the introduction of the call, Eric correctly
testified that the phone conversation began with a discussion about a football game.

                                               9
not have been admitted as an exhibit for use by the jury as substantive evidence. See Armijo,
2005-NMCA-010, ¶ 9 (“[A] prior inconsistent statement not under oath is inadmissible as
substantive evidence” (citing State v. Gutierrez, 1998-NMCA-172, ¶ 10, 126 N.M. 366, 969
P.2d 970 (internal quotation marks and citation omitted))); Rule 11-801(D)(1)(a) (allowing
the admission as substantive evidence of prior inconsistent statements made under oath in
a prior proceeding).

{23} Similarly, despite the State’s superficial attempts to disguise its actions as refreshing
the recollection of the witnesses, the playing and reading of the recorded conversations
before the jury and the admission of the CD and transcript of the phone call exceeded the
limited activities allowed by our Rules of Evidence. See Rule 11-612 NMRA. Although
witnesses are expected to testify in their own words, there are times when a witness does not
have perfect recall. In order to refresh a witness’s recollection with an exhibit, the attorney
must first establish that the witness does not recall the matter. State v. Bazan, 90 N.M. 209,
212, 561 P.2d 482, 485 (Ct. App. 1977) (“No means of arousing recollection may be used
until the witness has satisfied the trial judge that he lacks effective present recollection . . . .”
(internal quotation marks and citation omitted)); see generally Kenneth S. Broun,
McCormick on Evidence § 9, at 37-43 (6th ed. 2006) (describing the process of refreshing
recollection).

{24} Next, the attorney must determine that the witness’s memory will be refreshed by
reference to a certain exhibit. If the witness does not agree that the exhibit will be helpful,
then the attorney may not attempt to refresh the witness’s memory by calling the witness’s
attention to the exhibit. See State v. Orona, 92 N.M. 450, 454, 589 P.2d 1041, 1045 (1979)
(“If the witness acknowledges the statement, the court may allow the witness to use it to
refresh his recollection.” (emphasis added)). If the witness testifies that the exhibit might
refresh his or her memory, the witness reviews the exhibit without the jury viewing or
listening to the exhibit.

{25} Although “a song, a scent, a photograph, all allusion, even a past statement known
to be false” may be used to refresh a witness’s recollection, Bazan, 90 N.M. at 212, 561 P.2d
at 485 (internal quotation marks and citation omitted), we believe that the refreshing of
recollection must be conducted, as under the federal rules, “to prevent inadmissible evidence
from being suggested to the jury by any means, such as . . . asking questions in the hearing
of the jury.” Broun, supra, § 9 at 38 n.7. After the witness has considered the exhibit, the
attorney must then ask the witness whether his or her memory has been refreshed. If the
answer is yes, the exhibit is removed from the witness and the witness continues with his or
her testimony. See 3 Wigmore, supra, § 758, at 125 (“[I]f an actual present recollection
results, of the quality sufficient for testimony, the process and the result are legitimate.”
(internal citation omitted)). The testimony must come from the witness’s restored memory,
not from the exhibit, and certainly not from the questioning attorney. Orona, 92 N.M. at
455, 589 P.2d at 1046 (“[I]f a party can offer a previously given statement to substitute for
a witness’s testimony under the guise of ‘refreshing recollection,’ the whole adversary
system of trial must be revised. The evil of this practice hardly merits discussion.” (internal

                                                 10
quotation marks and citation omitted)).

{26} In this case, the witnesses never acknowledged that the recording or transcript would
refresh their recollections. Moreover, instead of providing the recording and transcription
to the witnesses outside the presence of the jury, the District Attorney, with the trial court’s
permission, conveyed their content directly to the jury without bothering to determine
whether the witnesses’ recollections might be refreshed such that they could testify. The
allowable procedure for refreshing recollection was simply not followed. Even if it had
been, the District Attorney would not have been justified in admitting the CD or transcript
as evidence for the jury to consider. See Broun, supra, § 9 at 42 (noting that “the adversary
[may] inspect the memoranda used to refresh memory during the witness’s examination,
[and] she may also submit them to the jury for their examination. However, the party calling
the witness may not do so unless the memoranda constitute independent evidence not barred
by the hearsay rule.” (Footnotes omitted.)).

{27} In the absence of a reasonable explanation of how the statements might have been
offered for anything other than the truth of the matter, we must conclude that they were, in
fact, admitted for truth. Therefore, because the statements were made out of court and as
proof of facts contained in the out-of-court statement, we hold that they constituted hearsay.
See Rule 11-801(C).

{28} Since the statements were hearsay, they were only admissible if they fell within one
of the exceptions to the hearsay rule. See Rules 11-802, 11-803, 11-804 NMRA. The State
suggests that even if the statements were hearsay, they could have fallen under the present
sense impression exception, Rule 11-803(A), or the excited utterance exception, Rule 11-
803(B). At trial, the District Attorney also suggested that the recordings fell under the
business records exception of Rule 11-803(F) or the recorded recollection exception of Rule
11-803(E).

{29} We reject these contentions. First, a present sense impression is defined as “[a]
statement describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.” Rule 11-803(A). Although
it appears undisputed that Jessica was observing Defendant’s discussion with police during
her phone call with Eric, her hearsay statements concerned the events of the previous night.
The State does not suggest, and in any case there is no evidence that would support the
assertion, that Jessica perceived the shooting. Her statements were not present sense
impressions.

{30} Second, an excited utterance is defined in our rules as “[a] statement relating to a
startling event or condition made while the declarant was under the stress of excitement
caused by the event or condition.” Rule 11-803(B). The theory underlying the excited
utterance exception is that “the exciting event induced the declarant’s surprise, shock, or
nervous excitement which temporarily stills capacity for conscious fabrication and makes
it unlikely that the speaker would relate other than the truth.” State v. Martinez, 99 N.M. 48,

                                              11
51, 653 P.2d 879, 882 (Ct. App. 1982). This theory presupposes that the witness was
actually present to experience the exciting event; nothing about being in a state of excitement
would lead us to believe that a witness is less likely to fabricate information about events of
which he or she had no first-hand knowledge. Jessica’s most damaging statements
concerned the shooting itself, and for this reason, if her statements were to be admitted under
the excited utterance exception, she must, at the time of the phone call, have been under the
stress of excitement caused by the shooting–not, for instance, by the arrival of police next
door. However, once again, there is no suggestion that Jessica was present at the shooting.

{31} The State suggests that Jessica was merely conveying that Defendant “told her he
shot and killed the victim” (emphasis added) the night before. Setting aside the fact that
many of Jessica’s statements make no attribution to Defendant at all, this reading would still
present insurmountable problems for the excited utterance theory. Although it would clarify
that Jessica was excited by Defendant’s admissions rather than by the events themselves, it
would do nothing to explain how Jessica would still have been so excited, nearly twelve
hours after talking to Defendant, that Rule 11-803(B) should apply to her statements. We
have held that in order to constitute an excited utterance, “the declaration should be
spontaneous, made before there is time for fabrication, and made under the stress of the
moment.” State v. Martinez, 102 N.M. 94, 99, 691 P.2d 887, 892 (Ct. App. 1984). Jessica’s
statements do not fit this description: far from exhibiting any spontaneity, other hearsay
statements in the calls suggest that Jessica was, in part, communicating on behalf of
Defendant; the calls were made many hours after the State contends that Jessica was made
aware of Defendant’s role in the shooting; and finally, the statements concerning the
shooting were prefaced by small talk that indicated that the stress of the moment had passed.
Thus, these statements were not excited utterances.

{32} Third, we reject the contention that the recorded calls were records of regularly
conducted activity under Rule 11-803(F). Under that rule, hearsay is admissible if it is:

       [a] memorandum, report, record or data compilation, in any form, of acts,
       events, conditions, opinions or diagnoses, made at or near the time by, or
       from information transmitted by, a person with knowledge, if kept in the
       course of a regularly conducted business activity, and if it was the regular
       practice of that business activity to make the memorandum, report, record or
       data compilation, all as shown by the testimony of the custodian or other
       qualified witness . . . unless the source of information or the method or
       circumstances of preparation indicate lack of trustworthiness.


Rule 11-803(F) (emphasis added). The justification for this exception is that “[r]eliability
is furnished by the fact that regularly kept records typically have a high degree of accuracy.
The regularity and continuity of the records are calculated to train the recordkeeper in habits
of precision[.]” Broun, supra, § 286 at 304. Here, even if the jail was a business and the
recordings were regularly conducted business activities, conclusions we need not make,

                                              12
Jessica’s statements would clearly fall outside of the rule.

{33} Where the hearsay statements to be admitted from a business record come from
individuals without personal knowledge who are under no duty to report to the recordkeeper,
we cannot hold that the requirements of this exception are met. In Garcia v. State, 126
S.W.3d 921, 926-27 (Tex. Crim. App. 2004), the Texas Court of Criminal Appeals
considered whether a trial court should have admitted statements from the defendant’s wife
that were contained in a report created by a women’s shelter. It concluded that

       [t]he records themselves were admissible, but that does not mean that all
       information, from whatever source or of whatever reliability, contained
       within those business records is necessarily admissible. When a business
       receives information from a person who is outside the business and who has
       no business duty to report or to report accurately, those statements are not
       covered by the business records exception. Those statements must
       independently qualify for admission under their own hearsay exception . . . .

Id. (footnotes omitted). We agree with this reasoning. To hold otherwise would be to allow
the State to transform completely inadmissible hearsay into admissible evidence simply by
routinely recording it.

{34} Finally, the transcript was not admissible as a recorded recollection. Under Rule 11-
803(E), hearsay may be admitted if it is:

       [a] memorandum or record concerning a matter about which a witness once
       had knowledge but now has insufficient recollection to enable the witness to
       testify fully and accurately, shown to have been made or adopted by the
       witness when the matter was fresh in the witness’s memory and to reflect that
       knowledge correctly.

Neither Eric nor Jessica testified that he or she had made or adopted the recordings when the
matter was fresh in his or her memory or that the information in the recordings correctly
reflected his or her knowledge, and so the statements do not fall under Rule 11-803(E). Cf.
State v. Allison, 2000-NMSC-027, ¶ 30, 129 N.M. 566, 11 P.3d 141 (“Because it appears that
the witness was denying the information from the tape, the trial court erred in admitting the
evidence under Rule 11-803(E).”).

{35} In addition, Rule 11-803(E) provides that “[i]f admitted, the memorandum or record
may be read into evidence but may not itself be received as an exhibit unless offered by an
adverse party.” (Emphasis added.) The State would not have been entitled to admit the
statements if they were recorded recollections.

{36} In sum, we find that the hearsay exceptions under which the State sought to admit
Defendant’s testimony are inapplicable. It was an abuse of discretion for the trial court to

                                             13
admit these potentially damaging statements in contravention of our Rules of Evidence.

THE TRIAL COURT’S ERRORS WERE NOT HARMLESS

{37} Evidence admitted in violation of our hearsay rules is grounds for a new trial only
if the error was harmful. Cf. State v. Downey, 2008-NMSC-061, ¶ 39, 145 N.M. 232, 195
P.3d 1244. “A reviewing court should only conclude that a non-constitutional error is
harmless when there is no reasonable probability the error affected the verdict.” State v.
Barr, 2009-NMSC-__, ¶ 53, __ N.M. __, __ P.2d __ (No. 30,191, May 22, 2009). In
contrast, we may find constitutional errors harmless only when there is no reasonable
possibility that the error affected the verdict. See, e.g., State v. Holly, 2009-NMSC-004, ¶
28, 145 N.M. 513, 201 P.3d 844. The difference between the applicable standards is not
amenable to precise demarcation because harmless error analysis requires an appellate court
to review the effect of an error in the unique context of the specific evidence presented at a
given trial.

{38} Harmless error analysis, whether under the constitutional or non-constitutional
standard, requires us to determine whether an error contributed to the jury’s verdict. See
Downey, 2008-NMSC-061, ¶ 39. However, it is not the role of the appellate court to re-
weigh the evidence to decide a defendant’s guilt or innocence; to do so would usurp the role
of the jury. See State v. Martinez, 2008-NMSC-060, ¶ 44, 145 N.M. 220, 195 P.3d 1232.
Accordingly, in some circumstances where, in our judgment, the evidence of a defendant’s
guilt is sufficient even in the absence of the trial court’s error, we may still be obliged to
reverse the conviction if the jury’s verdict appears to have been tainted by error:

       Appellate judges, persuaded by the record that the defendant committed some
       crime, are often reluctant to open the way to a new trial, given not only the
       risk of draining judicial resources but also the risk that a guilty defendant
       may go free. The very reluctance of judges to confront such risks, however,
       serves to condone errors that may affect a judgment and thus engenders a still
       more serious risk, the risk of impairing the integrity of appellate review.

Roger J. Traynor, The Riddle of Harmless Error 50 (Ohio State Univ. Press 1970).

{39} To decide whether an error by the trial court was harmless, a reviewing court should
consider whether there is: “(1) substantial evidence to support the conviction without
reference to the improperly admitted evidence; (2) such a disproportionate volume of
permissible evidence that, in comparison, the amount of improper evidence will appear
minuscule; and (3) no substantial conflicting evidence to discredit the State’s testimony.”
Barr, 2009-NMSC-__, ¶ 56. Weighing these factors, a court must decide if it can conclude
with the requisite level of certainty that an error did not contribute to the jury’s verdict.

{40} Under the unique facts of this case, we conclude that there is a reasonable probability
that the jury’s verdict was affected by the erroneously admitted hearsay. In so holding, we

                                             14
do not minimize the powerful evidence presented at trial of Defendant’s guilt. A large
number of witnesses, including Defendant, testified that Defendant had been humiliated on
the night of the shooting in a fight with friends of the victim. Daniel Garcia testified that the
enraged Defendant had overheard his assailants joke about the fight with the victim. Daniel
claimed to have been with Defendant as he fired the fatal shot at the victim’s vehicle.
Through Daniel’s testimony, the State was able to introduce recorded phone calls in which
Defendant seemed to guide Daniel in disposing of evidence and to threaten Daniel with
death should he go to the police. Max Sena and Morris Sharp, although they did not see the
shooting, gave testimony consistent with Daniel’s story and undermined Defendant’s claim
to have been asleep at the time of the victim’s death. Police investigation of the scene of the
crime also supported Daniel’s story. There was undoubtedly sufficient evidence to convict
Defendant, even if the phone call had not been introduced.

{41} Nevertheless, due to the marked emphasis placed by the State on Jessica’s hearsay
statements and the evidence from the jury itself that the statements were taken into
consideration, we cannot hold that the trial court’s error was harmless. By our count, the
State played or read Jessica’s statement that “well, yeah, it was [Defendant who shot the
victim]” at least five times during trial, including just before the beginning of jury
deliberations. As if to insinuate that Jessica had first-hand personal knowledge that
Defendant committed the shooting, this statement went directly to the heart of the case
against Defendant. Also played and read repeatedly was Jessica’s statement that Defendant
had told her that there was only one witness to the crime. In State v. Alvarez-Lopez, 2004-
NMSC-030, ¶ 34, 136 N.M. 309, 98 P.3d 699 (deciding an issue of constitutional harmless
error), this Court agreed with the United States Supreme Court that “[c]onfessions have
profound impact on the jury, so much so that we may justifiably doubt its ability to put them
out of mind even if told to do so . . . .” (Internal quotation marks and citation omitted.) We
believe that Jessica’s statements, because they purported to recount Defendant’s confession
to her, likely had a similarly profound impact.

{42} Even more unusual, from the perspective of a reviewing court searching for evidence
that a jury has been affected by error, the jury in this case actually interrupted its
deliberations to seek out a means of playing the recorded call. Not having found such a
means, the jury later reported that it settled on reviewing a transcript of the call. Although
we have no direct insight into the jury’s thoughts, in light of this request, we conclude that
the other evidence was not so overwhelming that Jessica’s statements would necessarily
have been minuscule in comparison.

{43} Further, although the evidence against Defendant was powerful, Defendant did
present his own evidence in opposition to Jessica’s hearsay statements. This evidence might
have had additional sway with the jury had the error not been made. For example,
Defendant presented alibi witnesses and cast doubt on the testimony of Daniel Garcia, who
admitted that he had also shot at the victim’s car, but claimed that he had used a gun that
could not have fired the fatal bullet. Because the jury was not instructed on accessory
liability, it had to weigh the evidence and decide whether Defendant himself shot and killed

                                               15
the victim.

{44} In the face of this evidence, we are compelled to hold that the trial court’s admission
of the hearsay statements was not harmless.

CONCLUSION

{45} The trial court abused its discretion in admitting the hearsay statements of Jessica
Gutierrez and the error was not harmless. We vacate Defendant’s convictions and remand
for a new trial consistent with this opinion.

{46}   IT IS SO ORDERED.

                                             ______________________________________
                                             EDWARD L. CHÁVEZ, Chief Justice

WE CONCUR:

_________________________________
PATRICIO M. SERNA, Justice

_________________________________
PETRA JIMENEZ MAES, Justice

_________________________________
RICHARD C. BOSSON, Justice

_________________________________
CHARLES W. DANIELS, Justice

Topic Index for State v. Macias, No. 30,741

AE                    APPEAL AND ERROR

AE-HE                  Harmless Error

EV                    EVIDENCE

EV-AE                  Admissibility of Evidence
EV-BR                  Business Records*
EV-EU                  Excited Utterance*
EV-HR                  Hearsay Evidence
EV-IM                  Impeachment
EV-PI                  Present Sense Impression

                                            16
EV-PA   Prior Acts or Statements
EV-RR   Recorded Recollection
EV-TE   Taped Evidence
EV-WM   Writing Used to Refresh Memory




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