State v. Halwood ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,679
10 JAMES BLISS HALWOOD,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Kenneth H. Martinez, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 M. Anne Kelly, Assistant Attorney General
17 Albuquerque, NM
18 for Appellee
19 Liane E. Kerr
20 Albuquerque, NM
21 for Appellant
22 MEMORANDUM OPINION
23 FRY, Judge.
24 Defendant was convicted of voluntary manslaughter and aggravated battery
25 with a deadly weapon. He raises a single issue on appeal, contending that a recording
1 created in the course of the police investigation was improperly admitted in evidence.
2 For the reasons that follow, we reject Defendant’s assertion of error. We therefore
3 affirm.
4 BACKGROUND
5 Defendant’s convictions arise out of an incident that occurred in the very early
6 morning hours on October 2, 2005, at the apartment complex in which Defendant
7 lived. Neighbors heard a commotion and saw Defendant pursue another man outside.
8 In the course of the ensuing altercation, Defendant stabbed the man to death.
9 One of the neighbors, Mr. Ramirez, later opened his door to a woman seeking
10 assistance. She was covered with blood and stated that she had been stabbed.
11 Ramirez immediately called 911 for emergency assistance. When the police arrived
12 they found the woman, Ms. Biddle, lying down and clearly in distress. She indicated
13 that she had been stabbed, and the wound was clearly visible. In light of the severity
14 of her condition, she was transported to the hospital immediately.
15 One of the officers recorded their brief interaction with Biddle on a belt tape.
16 In the course of the recording the officers asked Biddle, “Who did this?” to which she
17 responded, “A neighbor . . . James.” At trial Defendant objected to the admission of
18 the recording on the ground that it contained hearsay and violated his constitutional
19 right to confrontation. The district court overruled the objection, concluding that
2
1 Biddle’s remarks were classifiable as excited utterances and that her anticipated
2 appearance as a witness would address the confrontation issue. This ruling is the
3 subject of the present appeal.
4 STANDARD OF REVIEW
5 We review the admission of evidence for an abuse of discretion. State v. Sena,
6 2008-NMSC-053, ¶ 12, 144 N.M. 821, 192 P.3d 1198. An abuse of discretion “occurs
7 when the court’s ruling is clearly against the logic and effect of the facts and
8 circumstances of the case. We cannot say the trial court abused its discretion . . .
9 unless we can characterize [its ruling] as clearly untenable or not justified by reason.”
10 Id. (internal quotation marks omitted). Whether out-of-court statements are
11 admissible under the Confrontation Clause is reviewed de novo as a question of law.
12 State v. Rivera, 2008-NMSC-056, ¶ 10, 144 N.M. 836, 192 P.3d 1213.
13 DISCUSSION
14 A. Hearsay
15 Defendant contends that the portion of the recording in which Biddle identified
16 Defendant as her attacker should have been excluded as inadmissible hearsay. As an
17 initial matter, we reject the State’s suggestion that Defendant failed to properly
18 preserve this issue. Below, Defendant clearly objected on the ground that the
19 recording contained hearsay. The district court overruled the objection on the ground
3
1 that the excited utterance exception to the hearsay rule applied. This was sufficient
2 to satisfy the preservation requirement. See generally State v. Varela,
3 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (holding that to preserve an
4 issue, a party must make an objection that specifically apprises the trial court of the
5 claimed error and invokes an intelligent ruling thereon).
6 Turning to the merits, to the extent that the statement in question was offered
7 at least in part for the truth of the matter asserted (i.e., to establish that Defendant had
8 stabbed Biddle), it could be classified as hearsay. See generally Rule 11-801(C)
9 NMRA (defining hearsay). But see Rule 11-801(D)(1)(c) (providing that statements
10 of identification are not hearsay if the declarant testifies at the trial and is subject to
11 cross-examination).
12 Despite the generally objectionable nature of hearsay, Rule 11-803(B) NMRA
13 provides an exception for “[a] statement relating to a startling event or condition made
14 while the declarant was under the stress of excitement caused by the event or
15 condition.” The applicability of this exception to any given situation depends upon
16 an examination of the totality of the circumstances, including
17 how much time passed between the startling event and the statement, and
18 whether, in that time, the declarant had an opportunity for reflection and
19 fabrication; how much pain, confusion, nervousness, or emotional strife
20 the declarant was experiencing at the time of the statement; whether the
21 statement was self-serving[; and whether the statement was] made in
22 response to an inquiry.
4
1 State v. Balderama, 2004-NMSC-008, ¶ 51, 135 N.M. 329, 88 P.3d 845 (alterations
2 in original) (internal quotation marks omitted).
3 In this case, these considerations support the district court’s characterization of
4 Biddle’s statement as an excited utterance. Because Biddle ran directly to Ramirez’s
5 apartment, Ramirez called 911 immediately, and the police arrived shortly thereafter,
6 relatively little time appears to have passed between the startling event and Biddle’s
7 statement. Biddle therefore had little opportunity for reflection and fabrication.
8 Additionally, because Biddle had been seriously wounded as a result of being stabbed
9 in the torso, she was covered in blood, her wound was readily visible, and she was
10 breathing heavily and moaning, Biddle was clearly in significant pain and emotional
11 distress. Finally, although the statement in question was made in response to an
12 inquiry, there has been no suggestion that the statement was self-serving.
13 Accordingly, the totality of the circumstances surrounding Biddle’s declaration
14 indicates that the statement was properly admitted under the excited utterance
15 exception.
16 In his brief to this Court, Defendant exclusively contends that Rule 11-803(B)
17 should not apply because Biddle’s statement was made in response to a police
18 officer’s question. However, our authorities provide that this circumstance does not
19 render the excited utterance exception inapplicable. See State v. Hernandez, 1999-
5
1 NMCA-105, ¶ 15, 127 N.M. 769, 987 P.2d 1156 (“Although the fact that the
2 statements were made to police can also undermine their spontaneity, the mere fact
3 that the statements were responses to questions does not necessarily defeat a finding
4 that they were excited utterances.”); State v. Bonham, 1998-NMCA-178, ¶ 5, 126
5 N.M. 382, 970 P.2d 154 (declining “to adopt a bright-line rule that every statement
6 made in response to a question, whether by police or others, is not an excited
7 utterance”), abrogated on other grounds by State v. Traeger, 2001-NMSC-022, 130
8 N.M. 618, 29 P.3d 518. Statements very similar to the statement at issue in this case
9 have been deemed excited utterances in several cases, despite the fact that they were
10 made in response to inquiries by investigating officers. See, e.g., State v. Salgado,
11 1999-NMSC-008, ¶¶ 3, 9-11, 126 N.M. 691, 974 P.2d 661 (holding that a statement
12 by which the victim identified his shooter was properly classified as an excited
13 utterance, despite the fact that it was made in response to police inquiry); State v.
14 Fuentes, 2010-NMCA-027, ¶¶ 3, 19, 147 N.M. 761, 228 P.3d 1181 (holding that a
15 statement in response to police inquiry, by which the victim identified the defendant
16 as the person who shot him, fell within the excited utterance exception); Bonham,
17 1998-NMCA-178, ¶¶ 4-8 (concluding that the trial court did not abuse its discretion
18 in finding that the victim’s statements concerning his attacker were excited utterances,
19 despite the fact that the statements were made in response to police inquiries). We
6
1 therefore reject Defendant’s argument and conclude that the district court properly
2 admitted Biddle’s recorded statement pursuant to Rule 11-803(B).
3 B. Confrontation Clause
4 Defendant contends that the admission of Biddle’s recorded statement resulted
5 in a violation of his Sixth Amendment right to confrontation. Defendant’s argument
6 appears to be premised on the extrajudicial nature of the recorded statement.
7 However, because Biddle appeared at the trial, testified, and was subject to cross-
8 examination, Defendant’s right to confrontation was satisfied. See State v. Torres,
9 1998-NMSC-052, ¶¶ 21-24, 126 N.M. 477, 971 P.2d 1267 (observing that an out-of-
10 court statement may be offered against a defendant without offending the
11 Confrontation Clause if the declarant appears and is subject to cross-examination),
12 overruled on other grounds by State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M.
13 309, 98 P.3d 699.
14 It appears that Defendant may take issue with Biddle’s availability for purposes
15 of confrontation based on her imperfect memory. However, as an abstract
16 proposition, lack of memory has been rejected as a basis for excluding an out-of-court
17 statement so long as the witness appears at trial and is subject to unrestricted cross-
18 examination. Torres, 1998-NMSC-052, ¶ 23. In this case, Biddle appeared and was
19 subject to unrestricted cross-examination. Furthermore, Biddle did not claim to lack
7
1 memory. To the contrary, she testified at some length about the events on the date in
2 question, including her brief interview with the police officers at the scene and the
3 specific statement by which she identified Defendant as her attacker. Accordingly,
4 this is not a case in which lack of memory prevented Defendant from engaging in
5 cross-examination. We therefore perceive no basis for Defendant’s suggestion that
6 Biddle was effectively unavailable.
7 Alternatively, Defendant contends that the State should have been required to
8 establish that Biddle was unavailable before the recording could be played. However,
9 such a showing would only have been required if Biddle had not appeared at trial. See
10 State v. Lopez, 2007-NMSC-037, ¶ 19, 142 N.M. 138, 164 P.3d 19 (“The
11 Confrontation Clause bars the admission of testimonial statements of a witness who
12 did not appear at trial unless he was unavailable to testify, and the defendant had . .
13 . a prior opportunity for cross-examination.” (emphasis added) (internal quotation
14 marks omitted)).
15 Citing State v. Almanza, 2007-NMCA-073, 141 N.M. 751, 160 P.3d 932,
16 Defendant also asserts that the recorded statement should have been excluded for the
17 same reason that telephonic testimony has been rejected. However, because Biddle
18 appeared in person at trial and was subject to cross-examination with respect to all
19 pertinent matters, including the recorded statement, we reject the suggested analogy
8
1 to telephonic testimony and conclude that Almanza has no bearing on the present
2 matter.
3 Finally, Defendant appears to contend that his constitutional right to
4 confrontation was violated by the timing of the presentation of the tape recording,
5 asserting that the State should not have been permitted to play the recording before
6 Biddle was called to testify. However, Defendant has failed to articulate how or why
7 this presentation should be said to implicate the Confrontation Clause, and he has
8 cited no supporting authority. We therefore decline to consider the argument. See
9 generally In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984)
10 (holding that arguments must be supported by cited authority and when they are not,
11 we assume counsel was unable to find supporting authority); State v. Montes,
12 2007-NMCA-083, ¶ 34, 142 N.M. 221, 164 P.3d 102 (illustrating that arguments that
13 have not been clearly articulated need not be considered).
14 CONCLUSION
15 For the foregoing reasons, we conclude that the recorded statement was
16 properly admitted over Defendant’s objections. We therefore affirm.
17 IT IS SO ORDERED.
18
19 CYNTHIA A. FRY, Judge
9
1 WE CONCUR:
2
3 JONATHAN B. SUTIN, Judge
4
5 MICHAEL E. VIGIL, Judge
10