1999 -NMSC- 8, State v. Salgado

• Decision Date: 26 January 1999
• Docket Number: No. 23,939,23,939
• Citation: 1999 NMSC 8,974 P.2d 661,126 N.M. 691
• Parties: 1999 -NMSC- 8 STATE of New Mexico, Plaintiff-Appellee, v. Eutimio SALGADO, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 661

974 P.2d 661

1999 -NMSC- 8

STATE of New Mexico, Plaintiff-Appellee, v. Eutimio SALGADO, Defendant-Appellant.

No. 23,939.

Supreme Court of New Mexico.

Jan. 26, 1999.

Timothy M. Padilla & Associates, Adam Kurtz, Albuquerque, for Appellant.

Hon. Patricia A. Madrid, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, for Appellee.

OPINION

SERNA, Justice.

¶1 Eutimio Salgado, Defendant-Appellant, was convicted following a jury trial of first degree murder and sentenced to life imprisonment. He appeals pursuant to Rule 12-102(A)(1) NMRA 1999 (appeals from sentence of life imprisonment taken to the Supreme Court). Defendant argues that the trial court erred by denying his motion to exclude hearsay statements, which he contends violated his constitutional right of confrontation, and by denying his motions to suppress identification testimony. Defendant also asserts that there was insufficient evidence to support his conviction. We affirm Defendant's conviction.

Facts and Background

¶2 On the evening of August 21, 1995, Harold McManaway was standing in the front yard of the Albuquerque home of Michelle Romero, his girlfriend. Michelle's mother, Lorraine Romero, and Michelle's daughter were also in the yard at the time. Michelle and Lorraine testified that a man walked toward Harold, and that Harold appeared to greet the man with his hand extended. Michelle testified that she heard Harold greet the man with the words, "Hey, Timo, what's up?" Lorraine testified that she heard Harold said, "Hey, Primo." Following this greeting, the man shot Harold repeatedly.

¶3 Harold then entered Michelle's home and collapsed in a bedroom. Michelle repeatedly screamed that "Timo" shot Harold, and proceeded to call 911. The first police officer to arrive, John Koch, found Harold unconscious. While he was cutting Harold's shirt, Harold sat up and, in response to Officer's Koch's question, "Who shot you?" said, "Timo shot me." Lorraine also testified that Harold stated, "Timo shot me."

¶4 Annette Smith, Harold's ex-girlfriend, testified that Harold knew Defendant for at least eleven years, and that Harold occasionally greeted Defendant by saying, "Hey, Timo." Defendant's mother lived approximately one-half mile from Michelle's house, and Defendant was present at his mother's residence on the evening Harold was shot.

Discussion

Did the Trial Court Err by Admitting Hearsay Statements?

¶5 This Court reviews the trial court's determination of whether testimony is within exceptions to the hearsay rule for an abuse of discretion. See State v. Ross, 1996-NMSC-031, 122 N.M. 15, 20, 919 P.2d 1080, 1085. Defendant objects to the admission of Harold's statements, "Hey, Timo, what's up?" and "Timo shot me," arguing that the admission of these hearsay statements violates his right of confrontation. See U.S. Const. amend. VI; N.M. Const. art. II, § 14. The trial court found Michelle's testimony that Harold said "Hey, Timo, what's up?" admissible as a present sense impression exception, Rule 11-803(A) NMRA 1999, to the hearsay rule. Rule 11-803(A) defines the present sense exception as "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."

¶6 Defendant contends that this testimony was inadmissible, relying on State v. Case, 100 N.M. 714, 718, 676 P.2d 241, 245 (1984), because the shooter's identity could not be verified by the witness. In Case, we held that the trial court did not abuse its discretion by excluding a witness' identification testimony where the identification was based on the absent declarant's brief sighting of an individual, and the witness looked up too late to verify the identification. Id. at 718, 676 P.2d at 245. In the present case, however, Michelle herself saw the shooter, described him, and identified him in a photograph array, supporting her testimony that Harold recognized the shooter as "Timo." Further, in Case, we upheld the trial court's decision and stated that the trial court has "broad discretion to assess the reliability of the statement made by a witness who does not testify" and that "[a]bsent a clear abuse of that discretion, reversal is not appropriate." Id. at 718, 676 P.2d at 245; see also State v. Perry, 95 N.M. 179, 181, 619 P.2d 855, 857 (Ct.App.1980).

¶7 In Perry, the Court of Appeals discussed three considerations:

First, the statement must be made while the event or condition is being perceived by the declarant or immediately thereafter.... Second, ... [t]he admissibility of the statement will depend upon the trial court's view of the type of case, the availability of other evidence, the verifying details of the statement and the setting in which the statement was made. Third, the statement must be one which describes or explains the event or condition.

95 N.M. at 180, 619 P.2d at 856. Further, "[i]f the [declarant] was unavailable, the witness having heard the statement made by the declarant could be cross-examined concerning his [or her] perception of the event or condition sufficiently to enable the trial court to put a fair value upon the declarant's statement." Id.

¶8 Harold said, "Hey, Timo, what's up?" while he was perceiving an individual approaching him, "negat[ing] the probability of deliberate or conscious misrepresentation." Perry, 95 N.M. at 180, 619 P.2d at 856. Defendant argues that Harold's statement is not "reliable because he was shot and killed immediately thereafter" and because the time frame was too short. The State counters with the fact that Harold had an adequate opportunity to view the shooter from a distance of a few feet. Unlike the witness in Case, who did not observe the victim but only heard the declarant say she saw the victim, Michelle also saw the shooter, identified him in a photo layout, and was available for cross- examination. See Case, 100 N.M. at 718, 676 P.2d at 245. Lastly, Harold's statement explains the event: he was greeting the shooter while extending his hand towards him. Applying an abuse of discretion standard, we hold that the trial court did not err in admitting this testimony.

¶9 The trial court admitted Harold's statement, "Timo shot me," through Officer Koch's and Lorraine's testimony under the excited utterance exception to the hearsay rule.¹ Under Rule 11-803(B) NMRA 1998, a hearsay statement is admissible if it "relat[es] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The trial court properly characterized Harold's statement as an excited utterance because he made the statement relating to the startling event of being shot while clearly under the stress of excitement caused by the shooting.

¶10 Defendant argues that these witnesses' testimony was not reliable because it is based on an "initial hearsay statement of identification" and that Harold may have been relying upon "what he undoutedly [sic] heard Michelle Romero screaming, 'Timo shot him.' " Because Harold apparently based these statements on his initial identification of the individual that approached him, we disagree with Defendant's unsupported assertion that Harold was relying upon Michelle's statements. Further, Defendant argues that Harold "was so severly [sic] impaired by his mortal wounds that he likely was not in a conscious enough state to know who shot him," and that Harold's "last words were the result of an unconscious and involuntary physical and verbal reaction." Using an abuse of discretion standard of review, we also reject this argument.

¶11 Because Harold made the statement, "Timo shot me," to Officer Koch close in time to the shooting and because he was unconscious for at least part of that time, there was little opportunity for Harold to fabricate the identification. When a victim, regaining consciousness, is groggy and unfocused, this "actually supports admission of the statements because [it] suggest[s] that the victim was in no mental state to fabricate a story." State v. Lopez, 1996-NMCA-101, p 32, 122 N.M. 459, 926 P.2d 784, cert. denied, 122 N.M. 279, 923 P.2d 1164 (1996). Harold's statement directly related to the startling event of the shooting, and, severely wounded, he was clearly still under the stress of the event. See State v. Bonham, 1998-NMCA-178, p 8, 970 P.2d 154 (N.M.Ct.App.1998) ("conclud[ing] that the trial court did not abuse its discretion in finding that Victim's statements, to [police] officers, concerning his attacker were made under the stress of the attack, and were therefore excited utterances"). Thus, the trial court did not abuse its discretion admitting this testimony.

Did the Admission of Hearsay Statements Violate Defendant's

Right of Confrontation?

¶12 Defendant argues that the trial court's admission of Harold's statements violated his right of confrontation. See U.S. Const. amend. VI; N.M. Const. art. II, § 14. The question of whether the admission of hearsay evidence violates the Confrontation Clause is a question of law reviewed de novo. Ross, 122 N.M. at 22, 919 P.2d at 1087. "[T]he Confrontation Clause permits admission of a non-available declarant's hearsay statement if it falls within a 'firmly rooted exception' to the hearsay rule." Id. at 23, 919 P.2d at 1088 (quoting Idaho v. Wright, 497 U.S. 805, 815, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)). An exception is firmly rooted if it has been established historically and courts have widely accepted it. Ross, 122 N.M. at 25, 919 P.2d at 1090. "If the disputed statement does not fall within a firmly rooted hearsay exception, then there must be 'particularized guarantees of trustworthiness' equivalent to those associated with a firmly rooted exception." Id. at 23, 919 P.2d at 1088 (quoting Wright, 497 U.S. at 815, 110 S.Ct. 3139). Analyzing whether the statements, under the totality of surrounding circumstances, were supported by particularized guarantees of...