1997 -NMCA- 117, State v. Elinski

• Decision Date: 14 October 1997
• Docket Number: No. 17115,17115
• Citation: 948 P.2d 1209,124 N.M. 261,1997 NMCA 117
• Parties: , 1997 -NMCA- 117 STATE of New Mexico, Plaintiff-Appellee, v. Frederick ELINSKI, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1209

948 P.2d 1209

124 N.M. 261, 1997 -NMCA- 117

STATE of New Mexico, Plaintiff-Appellee, v. Frederick ELINSKI, Defendant-Appellant.

No. 17115.

Court of Appeals of New Mexico.

Oct. 14, 1997.

[124 N.M. 262] Tom Udall, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Appellant.

OPINION

BOSSON, Judge.

¶1 Defendant, Frederick Elinski, killed Diego Duran Delaree (the victim), claiming self-defense. Charged with first degree murder, Defendant was convicted of tampering with evidence and second degree murder with a firearm enhancement. See NMSA 1978, §§ 30-2-1(B) (1994) (murder), 31-18-16 (1993) (use of firearm), 30-22-5 (1963) (tampering with evidence).

¶2 On appeal, Defendant argues that the trial court committed reversible error by admitting into evidence two damaging letters in which Defendant had threatened an unrelated third party with violence. We agree that the letters should not have been admitted. We also agree that, in the context of this case, the court's error was unfairly prejudicial to Defendant. Therefore, we reverse Defendant's conviction for second degree murder and remand for a new trial.

BACKGROUND

¶3 Defendant did not testify at trial. His previous statements to the police, given during the investigation of the shooting, were admitted into evidence. According to Defendant's statements, he met the victim through Roberto Campos. Defendant had been purchasing cocaine from Campos, but had become concerned that their relationship was deteriorating because Defendant owed Campos money for cocaine. According to Defendant, on the evening of January 16, 1995, he received a call from Campos inviting him to Campos' home in Monte Vista, Colorado. Defendant took a gun with him because he was concerned for his safety. When he arrived at the Campos home, Defendant was asked to accompany Campos and the victim, who was a friend of Campos, south to New Mexico to pick up a car. The three men set off in two vehicles, Campos alone in his truck and Defendant and the victim in Defendant's car. Somewhere south of Tres Piedras on Route 285, Campos pulled over, and Defendant did the same. According to Defendant both Campos and the victim pointed guns at Defendant, and Campos told the victim to shoot Defendant. Defendant shot the victim first. Campos then left after cautioning Defendant not to say anything about the shooting, and Defendant returned to Colorado. At trial, Campos denied having been at the scene of the shooting. There were no other witnesses to the incident.

¶4 At a pretrial hearing, the State presented a motion in limine to permit evidence at trial of other bad acts committed by Defendant. For example, the State sought to introduce evidence that Defendant owed money and had taken cocaine from Campos in the past without paying him. The State justified this evidence under Rule 11-404(B), NMRA 1997 by alleging that Defendant's need for money provided a motive for killing victim. Admission of that evidence is not in dispute on appeal. The State also sought to introduce two threatening letters written by Defendant. At the pretrial hearing, the trial court ruled that it would admit these letters, and they were admitted at trial over Defendant's objection. These letters form the gravamen of Defendant's appeal.

¶5 The letters made threats to a third party about a rent dispute that occurred one month before the shooting. Defendant had been acting as a caretaker of several cabins, and his job included collecting rent for the owner. In December 1994, Defendant wrote two letters to a tenant, one evicting him for nonpayment of rent and the second threatening to beat the tenant if he didn't pay. The second letter contained the following menacing language: "If you want to talk to me it better be to hand me some cash or get the s--- beat out of you. I'm done f--- with you Art. Cash or blood Art, its your choice--You f--- puss. Hey, I won't even use a bat!"

¶6 The prosecutor was frank in his reasons for offering these letters: they tended to rebut the claim of self-defense by showing that Defendant had a violent character which made it more likely that Defendant, not the victim, had been the first aggressor. The State did not claim the victim was aware of these letters. During pretrial hearings on the motion in limine, the district attorney attempted to justify use of this evidence by citing State v. Parish, 118 N.M. 39, 44-45, 878 P.2d 988, 993-94 (1994). The prosecutor argued that Parish placed a new burden on the State to prove beyond a reasonable doubt that a defendant did not act in self-defense. According to the district attorney, the Parish decision permitted him to "chip away" at the self-defense claim by introducing evidence in his case in chief that would show Defendant's character trait for aggression. Unfortunately, the trial court agreed with the district attorney's assessment of the State's burden under Parish. The court concluded that the letters would be admitted precisely because they showed Defendant was "just unreasonable," "extremely angry," and "prone to make significant threats of violence." Therefore, the letters permitted an inference that Defendant was less likely a person who acted in self-defense, and more likely a person who would have been the first aggressor.

¶7 During trial, the court admitted the letters for the stated purpose of showing the aggressive character of Defendant. When defense counsel protested that Defendant's character for violence had not yet been placed in front of the jury or the court, the court responded that Defendant had placed his propensity for violence at issue by the claim of self-defense. The letters were first read into the record and then published to the jury. Defendant contests the legality of that decision.

DISCUSSION

Standard of Review

¶8 Generally speaking, a reviewing court defers to the trial court's decision to admit or exclude evidence and will not reverse unless there has been an abuse of discretion. See State v. Woodward, 1995 NMSC 082, p 6, 121 N.M. 1, 4, 908 P.2d 231, 234. However, our review of the application of the law to the facts is conducted de novo. See State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994). In this case, the trial court determined that a claim of self-defense permitted the prosecution to introduce specific acts of violent character for the sole purpose of showing propensity for violence. This is not the law in New Mexico. Accordingly, the decision to admit the letters was error because it was premised on a misapprehension of the law.

Claim of Self-Defense Does Not Invite Specific Evidence of Violent Propensity

¶9 In Parish, the Supreme Court neither changed the burden of proof for self-defense nor opened the door to inadmissible propensity evidence. The Court reaffirmed that when a defendant presents some evidence of self-defense that could raise a reasonable doubt in the minds of the jurors, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. See Parish, 118 N.M. at 44-45, 878 P.2d at 993-94. But this was not new. "It is settled law in New Mexico that the defendant does not have the burden of proving that the killing was an exercise of the right of self-defense." Id. at 44, 878 P.2d at 993; see also UJI 14-102, NMRA 1997; State v. Edwards, 97 N.M. 141, 145, 637 P.2d 572, 576 (Ct.App.1981) (state has the burden of showing that the killing was not in self-defense).

¶10 Just as the State has long had the burden of disproving self-defense, it is equally clear that, unless invited, the State cannot resort to specific character evidence to satisfy that burden. Generally, Rule 11-404(A)(1), NMRA 1997 prohibits character evidence except "[e]vidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same." These letters were not offered by Defendant nor were they offered by the State on rebuttal. Nor do we agree with the proposition that merely by pleading self-defense Defendant opened the door to character evidence showing propensity for violence. That point was clearly established by this Court in State v. Reneau, 111 N.M. 217, 219, 804 P.2d 408, 410 (Ct.App.1990).

¶11 In Reneau, the trial court erroneously permitted the defendant to be questioned about an earlier unrelated incident in which she had stabbed another man, not the victim. Id. at 218-19, 804 P.2d at 409-10. This Court determined that the trial court had erred in admitting specific instances of violence in connection with the defendant's character. Id. at 219, 804 P.2d at 410. "We do not agree that the character of the defendant should be or is an element of self-defense." Id. We further noted that a claim of self-defense is not tantamount to putting one's character at issue, and we concluded: " 'It would be too attenuated an argument to say evidence of a defendant's reputation for violence indicates a tendency not to fear another person.' " Id. (quoting Johns v. United States, 434 A.2d 463, 470 n. 11 (D.C.App.1981)); cf. UJI 14-5171, NMRA 1997 (defendant's fear as element of self-defense); State v. Baca, 115 N.M. 536, 540, 854 P.2d 363, 367 (Ct.App.1993) (specific instances of a victim's prior conduct were not admissible to prove that the victim was the first aggressor).

¶12 Thus, the trial court erred from the very beginning in allowing such prejudicial evidence for precisely the wrong reason: that Defendant more likely did not act in self-defense because he was a man of violent character or propensity. As we shall see, this misapprehension of the law, offered initially by the State, colored what occurred thereafter with respect to the admission of this evidence.

Rule 11-404(B)

¶13 Rule 11-404(B) prohibits evidence of other bad acts merely to show the bad character of the accused and a...