State v. Aguayo, 12957

• Citation: 1992 NMCA 44,835 P.2d 840,114 N.M. 124
• Decision Date: 17 April 1992
• Docket Number: No. 12957,12957
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Roland Lee AGUAYO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 840

835 P.2d 840

114 N.M. 124

STATE of New Mexico, Plaintiff-Appellee, v. Roland Lee AGUAYO, Defendant-Appellant.

No. 12957.

Court of Appeals of New Mexico.

April 17, 1992.

Certiorari Denied May 26, 1992.

[114 N.M. 125] Tom Udall, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

BLACK, Judge.

On this court's own motion, the opinion filed in this case on March 17, 1992 is withdrawn, and the following is substituted.

Defendant appeals his conviction for child abuse resulting in death in violation of NMSA 1978, Section 30-6-1 (Cum.Supp.1989). The State's theory was that Defendant inflicted fatal head injuries on Jose Luis Garcia (Joey), a six-month-old baby. Defendant did not take the witness stand or present evidence. His counsel, however, argued that it was unclear when the injury occurred, that other people had equal opportunity to inflict the injury, and that Defendant had no motive for doing so. Defendant raises the following contentions on appeal: (1) there was insufficient evidence supporting the verdict; (2) the prosecutor impermissibly commented on Defendant's silence; (3) the trial court erred in admitting alleged evidence of prior bad acts; (4) the trial court erred in admitting purported evidence of his flight; (5) a blue ribbon jury should have been seated; (6) the trial court erred in admitting a doll into evidence; and (7) he was denied effective assistance of counsel. We reverse for a new trial based on Defendant's third contention.

I. FACTS

Rosemary Garcia testified that she met Defendant at work, began dating him in September 1989, and he moved in with her in November 1989. Thereafter Defendant helped her at home, changed and fed Joey, and bought groceries.

On the day of the incident, Rosemary Garcia went shopping with her children, her two sisters, and their children. Rosemary's sisters testified that Joey was alright during the day, and that there were no accidents. There was, however, evidence that Joey had been frustrated, cranky, and threw up a couple of times. Upon returning home, Rosemary put Joey in his bassinet at about 7:30 p.m. Rosemary then went back out to the grocery store. She returned home fifteen to thirty minutes later. Rosemary testified that upon returning she found Defendant in a bad mood because she had not been where Defendant was to have picked her up that afternoon. Rosemary testified that when she went to the store, Joey was face up; when she returned, he was face down.

Rosemary went to bed but was awakened at 9:00 or 9:30 p.m., when she heard Joey making a noise as though he could not catch his breath. His body was limp and his head hung down. Defendant told Rosemary to take his car and go to the hospital.

Dr. Talamantes, the pediatrician who saw Joey initially, found multiple skull fractures and blood in the brain. Dr. Talamantes testified that he found no significant bruising, but did see evidence of significant trauma. He testified that ordinarily one would expect to find bruising and swelling, and their absence suggested to him that there had been time for the bruising and swelling to dissipate subsequent to the injury. He did testify, however, that in his opinion the primary injury had been inflicted not long before admission. Because of the confusing nature of the symptoms, Dr. Talamantes called in Dr. Penka, a neurosurgeon.

Dr. Penka testified that Joey's injuries could not have been caused accidentally unless he had been hit by a car or fallen from a building. Dr. Penka testified that some aspects of Joey's injuries could have been present for some time, but he was unable to quantify how long. However, he also said it was difficult to imagine that a baby with injuries as severe as Joey's could behave normally for as long as a day.

Joey was transferred to Albuquerque. After being maintained on a respirator for two days, he died.

The director of the medical examiner's office, Dr. McFeeley, performed the autopsy. She testified that there were two small areas of bruising on the back of Joey's head. Dr. McFeeley testified that in her opinion one or more severe blows caused the injuries. She said the seriousness of the injuries precluded an accident such as falling out of bed. Dr. McFeeley said the symptoms from the fractures, the degree of separation, and the severity of the injuries would result in immediate unconsciousness or other severe reaction. The severity of Joey's injuries suggested to her that they were inflicted within the period of one to five hours prior to Joey's admission to the hospital.

Detectives questioned Rosemary at the hospital. She mentioned the babysitter as possibly responsible for the child abuse reported by the doctors. Rosemary also testified that her four-year-old daughter, Cristal, would pick Joey up and throw him down, and she had to tell Cristal not to do it because she could hurt Joey.

Rosemary's brother-in-law, Gilbert Melendrez, testified that he went to pick up Cristal at Rosemary's apartment after she took Joey to the hospital. Melendrez testified that when he asked Defendant what was wrong with Joey, Defendant said it was none of his "goddamn business." Melendrez further testified that Defendant had come to his apartment earlier in the day, looking for Rosemary. Upon learning she was not there, Defendant slammed his car door and sped off, squealing his tires.

Finally, before Joey was transferred, Rosemary testified she told Defendant that, if he loved her and her kids, he would be there for her in Albuquerque. Defendant said he would go to Albuquerque, but he did not.

II. SUBSTANTIAL EVIDENCE

We necessarily review Defendant's argument on the substantial evidence issue, because if there is insufficient evidence to support the verdict, we would be compelled to reverse and direct dismissal. As the above recital of relevant facts indicates, this case presents a very close question of the quantum of circumstantial evidence necessary to support a conviction of child abuse resulting in death. Compare State v. Leal, 104 N.M. 506, 723 P.2d 977 (Ct.App.1986) with State v. Sheldon, 110 N.M. 28, 791 P.2d 479 (Ct.App.), cert. denied, 110 N.M. 44, 791 P.2d 798, cert. denied, 498 U.S. 969, 111 S.Ct. 435, 112 L.Ed.2d 418 (1990). It is established law in this jurisdiction, as elsewhere, that a properly instructed jury may be justified in returning a guilty verdict based primarily on evidence that the defendant had the best opportunity to inflict the injury. See Sheldon, 110 N.M. at 30, 791 P.2d at 481; Raymond v. State, 717 P.2d 1147 (Okla.Crim.App.1986) (child in exclusive custody of defendants). Thus there is evidence from which the jury could have inferred that Defendant inflicted the injury. We must, therefore, reject Defendant's argument based on a lack of substantial evidence. Because the outcome in such child abuse cases often turns upon circumstantial evidence, however, questions of admissibility become paramount. See United States v. Leight, 818 F.2d 1297 (7th Cir.), cert. denied, 484 U.S. 958, 108 S.Ct. 356, 98 L.Ed.2d 381 (1987).

III. ADMISSION OF PRIOR UNCHARGED CONDUCT

A. EVIDENCE OF PRIOR ABUSE

Prior to trial, defense counsel moved to prohibit the admission of "prior bad acts" involving Defendant and Joey. While at this pretrial hearing Defendant specifically identified only one of the "anecdotes" to be introduced by the State, it is not clear that Defendant was even aware of the other incidents the State would advance.¹ Defendant argued such evidence was "character assassination" and "certainly prejudicial." The State did not articulate any exception to the general prohibition of such evidence contained in SCRA 1986, 11-404(B) (Rule 404(B)). During trial the district court, relying upon Rule 404(B), allowed testimony of three "other wrongs" perpetrated by Defendant against Joey. The court indicated the incidents could be admitted as evidence of "prior abuse."

At trial, the court permitted Rosemary to testify that, about one month prior to Joey's death, she was talking to a friend in the kitchen when she heard the baby cry in the bedroom. She ran to the bedroom and saw Defendant in the bathroom washing the baby's head. Defendant said "the baby had thrown up" but Rosemary testified she found no evidence of vomit in the bassinet or on Joey's clothes. Rosemary told Defendant she saw no evidence of vomit. Rosemary remembered Defendant's reply was basically, "Can't you understand, that baby just threw up." Defendant then got mad, set the baby down, and went outside. Defendant was given a "continuing objection" to this testimony.

Rosemary's father testified, without further objection, that on a prior occasion he had observed Defendant putting ice water on Joey's head when the baby had a fever. When questioned, Defendant indicated he felt that was the best way to reduce the fever.

There was no testimony that Joey suffered any adverse consequences from either of these incidents.² No medical treatment was sought or required and neither "prior bad act" was reported to the authorities.

B. REQUIREMENTS FOR ADMISSION OF PRIOR UNCHARGED CONDUCT

1. The Evidence Must Be Probative.

Admission of evidence is within the sound discretion of the trial court and the trial court's determination will not be disturbed in the absence of an abuse of that discretion. State v. Saavedra, 103 N.M. 282, 705 P.2d 1133 (1985). While trial courts have discretion to strike a balance between probative value and prejudice, they must always be sensitive to the potential prejudice inherent in evidence of the defendant's prior uncharged conduct. United States v. Lucero, 601 F.2d 1147 (10th Cir.1979).

The initial threshold for admissibility of prior uncharged conduct is whether it is probative on any essential element of the charged crime. See State v. Fuson, 91 N.M. 366, 574...