1998 -NMCA- 178, State v. Bonham

• Decision Date: 03 October 1998
• Docket Number: No. 18,533,18,533
• Citation: 1998 NMCA 178,970 P.2d 154,126 N.M. 382
• Parties: , 1998 -NMCA- 178 STATE of New Mexico, Plaintiff-Appellee, v. Janet Cynthia BONHAM, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 154

970 P.2d 154

126 N.M. 382, 1998 -NMCA- 178

STATE of New Mexico, Plaintiff-Appellee, v.Janet Cynthia BONHAM, Defendant-Appellant.

No. 18,533.

Court of Appeals of New Mexico.

Oct. 3, 1998.

Certiorari Denied, Nos. 25,428, 25,434,

Nov. 19, 1998.

Tom Udall, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, Carolyn R. Glick, Assistant Appellate Defender, Santa Fe, for Appellant.

OPINION

FLORES, Judge.

I.INTRODUCTION

¶1Janet Cynthia Bonham(Defendant) was charged with two counts of aggravated battery with a deadly weapon against a household member, and, in the alternative, one count of aggravated battery against a household member causing great bodily harm.A jury convicted Defendant of one count of aggravated battery with a deadly weapon (a trivet), and also convicted Defendant of the lesser included offense of aggravated battery not causing great bodily harm.Defendant was acquitted of the second count of aggravated battery with a deadly weapon (an electric fan).The victim was Defendant's husband, Fred Gallegos(Victim).

¶2 Although it is unnecessary to know the details of how Victim became injured in order to understand this case, one set of facts is significant.On the day of the incident, Victim told various police officers and doctors that he had been attacked by his wife, Defendant.Victim also testified before the grand jury that Defendant attacked him with an electric fan and a trivet (which Victim referred to as a "hot plate").At trial, however, Victim changed his story and testified that he accidentally fell onto the trivet and pulled the electric fan onto himself during an argument with Defendant.Victim's trial testimony was consistent with Defendant's testimony.Other facts will be discussed as they become relevant to our discussion of the issues raised by Defendant.

¶3Defendant appeals her convictions, arguing that: (1)the trial court erred by allowing the police officers to testify as to statements made by Victim to the police at the time of his injury; (2)the trial court erred by refusing to strike a juror for cause; (3)Defendant was prejudiced when the prosecutor asked Defendant what crimes she had previously been convicted of, after the court had ruled that question impermissible; and (4) the jury instruction eliminated an essential element of aggravated battery with a deadly weapon.We affirm on the first three issues and reverse on the fourth issue.Thus, we remand for a new trial on the aggravated battery with a deadly weapon charge.Defendant's conviction of aggravated battery not causing great bodily harm is affirmed.

II.DISCUSSION

Excited Utterances

¶4 According to Defendant, the trial court erred by allowing several police officers to testify that Victim stated that Defendant struck him with a trivet and caused his injuries.SeeRules 11-801, -802 NMRA 1998.The trial court admitted the police officers' testimony under the excited utterances exception to the hearsay rule.SeeRule 11-803(B) NMRA 1998.Defendant now argues that Victim's statements are not excited utterances because they were made in response to direct police questioning, and were, therefore, not spontaneous.The State makes three arguments in response: (1) that Defendant did not preserve the error with regard to two of the officers; (2) that Victim's statements were excited utterances even though they were made in response to police questioning; and, alternatively, (3) that even if the statements should have been excluded as hearsay, the admission of Victim's statements was harmless error because the testimony was cumulative.

¶5 An excited utterance is 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 question raised in this case is whether Victim's statements were made spontaneously, that is, under the stress of excitement caused by the startling event, when his statements were made in response to direct police questioning.Although we acknowledge that a statement made in response to a question may indicate that the statement was the result of reflection, we decline to adopt a bright-line rule that every statement made in response to a question, whether by police or others, is not an excited utterance.Rather, we follow our general approach to excited utterances, which requires the trial court to consider the particular circumstances of each case to determine whether the statement "was the result of reflective thought" or whether it was rather a spontaneous reaction to the exciting event.2 John William Strong, McCormick on Evidence§ 272, at 220 (4th ed.1992);see, e.g., State v. Lopez, 1996-NMCA-101, p 29, 122 N.M. 459, 926 P.2d 784("The admissibility of an excited utterance as hearsay depends upon the circumstances of the case.");State v. Maestas, 92 N.M. 135, 141, 584 P.2d 182, 188(Ct.App.1978).This approach is consistent with our case law, which has upheld the admission of statements made in response to questions when the surrounding circumstances demonstrated a lack of reflection on the declarant's part.SeeState v. Robinson, 94 N.M. 693, 697-98, 616 P.2d 406, 410-11(1980);Maestas, 92 N.M. at 139-41, 584 P.2d at 186-88.

¶6 In deciding whether hearsay should be admitted under the excited utterance exception, the trial court should consider a variety of factors in order to assess the degree of reflection or spontaneity underlying the statement.These factors include, but are not limited to, how much time passed between the startling event and the statement, and whether, in that time, the declarant had an opportunity for reflection and fabrication; how much pain, confusion, nervousness, or emotional strife the declarant was experiencing at the time of the statement; whether "the statement was self-serving [; and whether the statement was] made in response to an inquiry[.]"2 McCormick on Evidence § 272, at 219(footnote omitted).

¶7We also note that the trial court has wide discretion in determining whether the utterance was spontaneous and made under the influence of an exciting or startling event.SeeLopez, 1996-NMCA-101, p 13, 122 N.M. 459, 926 P.2d 784(whether "out-of-court statements were made under factual circumstances that bring them within exceptions to the hearsay rule ... is reviewed for abuse of discretion.");Robinson, 94 N.M. at 698, 616 P.2d at 411("A trial court is allowed wide discretion in determining whether in fact a declarant is still under the influence of the startling event when the statement is made.").We will not reverse the trial court's decision to admit evidence without a clear abuse of discretion." 'An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case.We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.' "State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764(1994)(citations omitted).

¶8 In this case, the trial court's decision to admit Victim's responses to the first two police officers, Sergeant Ward and Officer Inhoff, as excited utterances was not an abuse of discretion because Victim's statements were made within moments of the attack, while Victim was still bleeding, in pain, and in mild shock, and while Victim was still within the proximity of his attacker.Moreover, the police officers did not engage Victim in prolonged interrogations.Rather, each officer simply asked Victim: "Who did this to you?"In each case, Victim responded by identifying Defendant.Thus, we conclude that the trial court did not abuse its discretion in finding that Victim's statements, to these two officers, concerning his attacker were made under the stress of the attack, and were therefore excited utterances.Cf.People v. Centers, 141 Mich.App. 364, 367 N.W.2d 397, 401(Mich.Ct.App.1985), rev'd on other grounds453 Mich. 882, 554 N.W.2d 10(Mich.1996)(detailed statement produced by question and answer session between victim and police officer, while in isolation, is "exactly the opposite of spontaneous and unreflecting").

¶9The court's decision to admit Victim's responses to the questions of Detective Aubuchon and Officer Otero, however, was an abuse of discretion.By the time Victim spoke with each of these two officers, he was already in the hospital and a considerable period of time had passed since Victim was attacked.Indeed, in the case of Detective Aubuchon, the last officer to speak with Victim, approximately three hours had passed between the time of the attack and the time of the interview.In addition, during these later interviews, Victim was no longer under the threat of further harm, had already received medical care, and appeared alert and awake despite his injuries.Given the undisputed evidence regarding the passage of time and Victim's alertness, at this point Victim could no longer have been under the stress of the startling event and must have had ample time to reflect on what had happened to him.Thus, we believe the trial court abused its discretion in concluding that Victim's statements to these two police officers were excited utterances.

¶10 However, "[n]ot all erroneously admitted hearsay will automatically warrant reversal.There still must be a showing that its admission affected the substantial rights of the objecting party ."Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 733, 779 P.2d 99, 110(1989).We cannot say that the admission of hearsay by the second two officers affected the substantial rights of Defendant because the hearsay evidence was cumulative.SeeState v. Woodward, 121 N.M. 1, 5, 908 P.2d 231, 235(1995)(the erroneous admission of evidence is harmless error if evidence is cumulative);Gallegos, 108 N.M. at 733-34, 779 P.2d at 110-11(same).

¶...