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State v. Olivas1/13/1998
FILED: 01/13/98
Certiorari denied
No. 25,005
March 30, 1998
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY ALBERT S. "PAT" MURDOCH, District Judge
{1} This case involves the extension of use immunity to statements made during the course of court-ordered treatment and a psychological evaluation. Following a jury trial, Defendant was convicted of intentional child abuse resulting in death. On appeal, Defendant raises two issues: (1) whether a Kastigar hearing was required to determine if the State and its witnesses had been exposed to immunized statements made by Defendant during court-ordered psychological treatment and (2) whether the State improperly used the prior inconsistent statements of Ramona Saenz as substantive evidence. We affirm.
FACTS
{2} Following a jury trial, Defendant was convicted of intentional child abuse resulting in death for the beating death of his two-and-a-half-year-old son, Victor. The fatal injury was alleged to have occurred on March 13, 1995. A year prior to trial, on June 12, 1995, Defendant had been granted use immunity from criminal prosecution for statements made during court-ordered psychological examinations and treatment arranged by the Children, Youth and Families Department (CYFD).
{3} On the day of trial, Defendant's counsel argued to the court that the district attorney's office had been exposed to immunized statements made by Defendant during court-ordered treatment. Counsel explained that the prosecuting attorney had been in contact with a social worker involved in Defendant's treatment. Additionally, the prosecuting attorney had reviewed several reports which Defendant contended tracked his progress, his impressions, and his statements made throughout the course of court-ordered treatment. Defendant asked the court to conduct a hearing to impose upon the State its burden under Kastigar v. United States, 406 U.S. 441 (1972), to prove that the State would not make non-evidentiary or strategic use of Defendant's immunized statements.
{4} In response, the State argued that the social worker had not been exposed to Defendant's immunized statements, but rather had been tracking Defendant's attendance at the court- ordered treatment. The State also explained that the social worker did not provide any treatment to Defendant. Additionally, the reports reviewed by the prosecuting attorney did not contain any references to Defendant's treatment. Finally, the State contended that the immunity order entered pursuant to NMSA 1978, Section 32A-4-11(C) (1993) did not cover statements made to other CYFD workers.
{5} The court then took a recess to determine if the reports reviewed by the district attorney's office were covered by the immunity order. The court denied Defendant's motion ruling that the reports "are not the type that were envisioned as being protected by the immunity order of the Court." The court also indicated that it would revisit the motion throughout the trial if any of the material contained in the reports was being used to the State's advantage.
Discussion
I. Immunity
A. Generally
{6} Defendant claims the trial court erred by failing to order a Kastigar hearing to determine if the State's evidence was derived from Defendant's immunized statements. Kastigar is the leading case addressing the prohibition on prosecutors from using a witness's immunized testimony in any respect against him or her in a subsequent criminal prosecution. Once defendants have shown that they have testified under a grant of immunity, the prosecuting attorneys then "'have the burden of showing tha
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