Recent NMCCA Opinion:United States v. Zamora

The NMCCA affirmed the findings and sentence of SSGT Antonio X. Zamora, finding that no error materially prejudicial to Appellant’s substantial rights. 

Appellant was convicted of one specification of sexual assault and one specification of unlawful entry under Articles 120 and 134, UCMJ, contrary to his pleas.
 
 Zamora opinion here.

Background
            On Sunday, 8 October 2017, MG, the wife of a Marine who was out of town at the time, had a small party at her house. MG’s next-door neighbors, Staff Sergeant Antonio X. Zamora (Appellant) and his wife, SZ, were both in attendance. MG became extremely intoxicated at the party and was not able to remember portions of the night, including how she got upstairs to her bedroom to go to sleep. MG woke up the next morning to find she was naked, had vomit on her stomach and vaginal area, and vomit on the floor of her bedroom. She also found Appellant’s shirt that he wore the previous night on her bed, as well as his pants, underwear, and cell phone near the stairs. On Tuesday, 10 October, MG texted SZ asking to discuss the events of the party, but rather than respond over text, SZ went over to MG’s house. MG decided to record her conversation with SZ and SZ did not seem to know she was being recorded. SZ told MG that she helped her up to her bedroom and put MG to bed with all of her clothes on, and then left the house with only MG inside, but did not lock the door due to an issue with the lock.
Although she did not tell MG this during the conversation, SZ could not find Appellant, her husband, when she got back to her house that night and texted neighbors trying to find him to no avail. When Appellant returned home later that morning, he was wearing clothes belonging to MG’s husband. 
After SZ and MG finished talking and SZ returned to her house, she texted MG, “Hey I forgot that I did have something big to ask you” and sent a picture of the clothes Appellant wore home from the party, and asked if the clothes belonged to MG’s husband. MG did not respond. Rather, later that day, MG and her husband reported a sexual assault to NCIS. She told them about the recording and “made clear that her intent in making the recording was to provide it to law enforcement if she decided to report a sexual assault.”
 
Issues
            The issues raised by Appellant are: (1) whether the military judge abused his discretion by admitting evidence of a recording between Appellant’s wife and the victim that was testimonial hearsay; and (2) whether the military judge erred by admitting the recording under the residual hearsay exception found in the Military Rule of Evidence 807. 
 
Discussion

1. Testimonial Hearsay

         In addressing whether the recording between MG and SZ constituted testimonial hearsay and was therefore inadmissible under the Confrontation Clause, the Court spent significant time reviewing the purpose of the Confrontation Clause and both Supreme Court and CAAF precedent in determining what evidence constitutes testimonial hearsay. The Confrontation Clause of the Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.” In Crawford v. Washington, a 2004 Supreme Court opinion interpreting the Confrontation Clause and reversing its precedent allowing hearsay statements of unavailable witnesses if the statements bore an “indicia of reliability”, the Supreme Court held that “testimonial hearsay” could not be admitted unless the declarant was unavailable and the accused had a prior opportunity to confront the declarant. 
         Applying the precedent of Crawfordand its progeny in the 2007 cases United States v. Rankinand United States v. Gardinier, CAAF identified three questions to aid the court in distinguishing between testimonial and nontestimonial hearsay: (1) “was the statement . . . made in response to law enforcement or prosecutorial inquiry?”; (2) “ did the ‘statement’ involve more than a routine and objective cataloging of unambiguous factual matters?”; and (3) “was the primary purpose for making, or eliciting, the statements the production of evidence with an eye towards trial?”
        In 2011, the Supreme Court found inMichigan v. Bryantthat the “identity of the interrogator, and the content and tenor of his questions, can illuminate the primary purpose of the interrogation.” However, in 2015, the Supreme Court in Ohio v. Clarkfound that “statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.”
      The Court applied the Rankin/Gardinierfactors, focusing on the first and third, finding “the second factor—the routine and objective cataloging of unambiguous factual matters—often involves machine-generated tests, laboratory reports, and the like and does not apply to the facts of this case.” In determining whether the statement was elicited by or made in response to law enforcement or prosecutorial inquiry, the Court acknowledged that MG clearly desired “to collect information for a potential criminal investigation”. However, the Court emphasizes that “SZ had no concrete belief she was providing any sort of statement, and certainly not a formalized statement akin to an affidavit, that could be used against her husband”, and therefore found that this factor weighed against the recording being testimonial hearsay. 
      In determining whether the primary purpose for making, or eliciting, the statement was the production of evidence with an eye toward trial, the Court noted that “[w]hile Bryantallowed for the consideration of the purpose of the questioner, it still maintained that the focus in determining testimonial hearsay is on the declarant’s intent in making the statements.” The Court went on to find that SZ’s primary purpose was “to have a casual neighborly conversation” and that the record gave no indication that SZ believed she was making declarations that would aid in prosecuting a crime. The Court therefore held that SZ’s statements made in the recording were not testimonial, reasoning that “[t]he Confrontation Clause protects us from the Government, not from surreptitious recordings between neighbors.”
            2.    Residual Hearsay
      Finding the statements to be nontestimonial, the military judge admitted the recording as “residual hearsay.” Under Supreme Court precedent, nontestimonial evidence can be admitted only if: 1) “the statement falls within a firmly rooted hearsay exception”; or (2) “it bears other particularized guarantees of trustworthiness.” This Court considers the second prong satisfied if the evidence meets the requirements of Mil. R. Evid. 807, which states that hearsay statements may be admitted as residual hearsay if: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice.
       The Court reviewed the military judge’s decision for an abuse of discretion, noting that this Court gives “‘considerable discretion’ to a military judge admitting evidence as residual hearsay.” Appellant argued that the statements lack circumstantial guarantees of trustworthiness due to the fact that SZ was drinking during the night of the party, and therefore her memory could be questionable, and because SZ may have had motive to fabricate the story since she already knew her husband might have cheated on her with MG.
       The Court was unconvinced by Appellant’s argument, instead finding that “SZ spontaneously offered details and a narrative of events in response to MG’s open-ended questions.” The Court further found that nothing in the conversation indicated SZ was trying to get back at her husband or that she was too intoxicated at the party to accurately remember what happened. Additionally, the Court pointed to the fact that portions of SZ’s statements could be corroborated, specifically “with respect to MG’s significant level of intoxication, the circumstances of how the party ended, that SZ left MG alone in her home and was unable to lock the front door, and Appellant’s presence in MG’s home after SZ left.” The Court ultimately found that Appellant “failed to demonstrate that the military judge abused his ‘considerable discretion’ when he determined that the statement were accompanied by circumstantial guarantees of trustworthiness” and affirmed the military judge’s decision.

Emily Eslinger

Senior Intern