State v. Ross

• Decision Date: 10 June 1996
• Docket Number: No. 22262,22262
• Citation: 919 P.2d 1080,1996 NMSC 31,122 N.M. 15
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joe ROSS, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1080

919 P.2d 1080

122 N.M. 15

STATE of New Mexico, Plaintiff-Appellee, v. Joe ROSS, Defendant-Appellant.

No. 22262.

Supreme Court of New Mexico.

June 10, 1996.

Rehearing Denied June 10, 1996.

T. Glenn Ellington, Chief Public Defender, David Henderson, Assistant Appellate Defender, Santa Fe, for Appellant.

Tom Udall, Attorney General, Bill Primm, Assistant Attorney General, for Appellee.

OPINION

MINZNER, Justice.

On motion by Defendant Joe Ross for rehearing or such other relief as the Court deems just and proper, the opinion filed on April 29, 1996 is withdrawn, and the following opinion is substituted in its place. The motion is otherwise denied.

Defendant Joe Ross appeals his convictions for the first degree murder and false imprisonment of his ex-wife, Connie Ross, contending that the trial court erroneously admitted into evidence four different statements made by her, in violation of the prohibition against hearsay and the Confrontation Clauses of the United States and New Mexico Constitutions. We conclude that the trial court erred in admitting one of the statements, but that the error was harmless. Accordingly, we affirm both convictions.

I. FACTS

Connie sustained what proved to be fatal gunshot injuries on Monday, August 23, 1993. She and Joe had been married and divorced twice. Their second divorce became final approximately one month prior to her death. At the time of her death they were living together. Joe testified at trial that up to the time of her death he had harbored hopes of a reconciliation. However, at the time of her death Connie was seeing someone else, a man named Larry Nail. The testimony at trial focused upon the events of August 23 and the preceding weekend.

Connie's sister, Judy Moya, testified that she and her family spent the night at the Ross residence on Saturday, August 21. Both Judy and Connie's son, Austin Schoonover, testified that they overheard Joe and Connie arguing in the master bedroom on Saturday evening. Judy testified that, during the course of this argument, she overheard Joe say something that sounded like "poom, poom, poom" and that Connie responded, "Joe, what are you doing, threatening me again? I'm going to get a restraining order on you, and you're going to get out of here sooner than you thought." Austin testified that he heard Connie say during that same argument, "I can't live like that." To this Joe responded, "You're not going to live at all."

On Sunday morning, Connie showed Judy a gun while the two were out of sight of the others. Connie told her sister that she had hidden the gun and that it belonged to Joe. Shortly thereafter, Judy and her family departed the Ross residence.

Austin testified at trial that he observed a pistol, covered by a towel, in Joe's back pocket on Sunday evening. Austin also recounted that Joe carried the gun in this manner to the store on Sunday evening and that he was sitting in the living room with the gun still in his pocket when Austin went to bed. Austin further testified that his mother gave him a handwritten note before he went to bed Sunday evening. The note stated that Joe was holding Connie hostage and instructed Austin to contact the police the following day. Austin also testified, however, that his mother returned to his room later that evening and instructed him to disregard the note.

When Austin awoke the next morning, Joe was seated in the living room in the same chair he had occupied when Austin retired the night before. Austin testified that as he was leaving the residence to go to school, his mother called out to him, "Tell me 'bye. This is the last time you'll see me alive." Austin did not tell anyone about the note until the police contacted him after the shooting.

Monday was Connie's birthday, and she received at least four phone calls from well-wishers that morning. The first one, at about 7:30 a.m., was from her sister, Asucena Valdez. Connie's other sister, Judy, called twice that Monday morning, at 8:05 and again at 8:27. Connie's boyfriend, Larry, also called sometime around 8:00 a.m. Asucena, Judy, and Larry all became concerned about Connie's welfare as a result of these conversations, and all three of them testified at trial to statements that Connie made. The admissibility of their testimony and that of the note is at issue in this appeal.

Following his telephone conversation with Connie, Larry contacted the police and reported that Connie might be in danger. As a result, Officer Farmer of the Roswell Police Department drove to the Ross residence. He testified that no one responded when he rang the door bell and called out that he was a police officer. He then got back into his vehicle, drove a short distance from the house, and returned on foot. As he approached the residence the second time, he saw a man and a woman in the living room. He saw the woman walk rapidly towards a back bedroom. Officer Farmer again rang the door bell and called out, and again there was no response. He then summoned two additional officers, Montano and Hubbard, to the scene.

After the backup officers arrived, Officer Farmer walked to the rear of the mobile home, where he found an unsecured window. He called out that the police were going to enter the residence, that he knew that Connie was inside, and that she should come outside or come to the window. At that point Joe made himself visible to Officer Farmer, called out that "everything was o.k.," and then ducked back out of sight. Officer Farmer demanded several times that Joe leave the residence, and he again said that everything was o.k. Officer Farmer then heard a woman call out faintly, "No, Joe, don't." At that point, Officers Montano and Hubbard began to kick in the door. As they were kicking the door, they heard four or five gunshots in rapid succession. The officers ceased their attempts to kick the door in, took cover, and summoned the SWAT team.

Several hours after the shots were fired, the police detonated a concussion grenade inside the residence, and the SWAT team entered. Inside they found Connie and Joe, both unconscious. Connie died eleven days later without regaining consciousness. The cause of her death was two .22 caliber bullet wounds to the back of the head. According to the testimony of the physician who conducted the autopsy, the gun that killed her was fired from a distance of one to eight inches from her skull.

Joe testified at trial. He testified that Connie told him Monday morning that she "wanted to die on her birthday." He further testified that he and Connie had spent Monday morning together and that when Officer Farmer arrived, they both agreed that they did not want to talk to the police. They therefore ignored Officer Farmer's knock. After the policeman returned a second time, Connie went to the back bedroom and he followed her. He testified that Connie grabbed the gun when the police began kicking at the door and that he struggled with her to prevent her from harming herself. As they struggled with the gun, it went off four or five times. He testified that he saw her fall and realized she had been shot and that he remembered nothing more from that point until he awakened in jail two days later.

Joe objected on hearsay grounds to the testimony of Asucena, Judy, and Larry and to the admission of the note. The trial court conducted a pretrial hearing on the admissibility of this evidence. The State asserted that one or more traditional hearsay exceptions applied to each of the disputed statements. In addition, the State argued that all of the statements were admissible under SCRA 1986, 11-804(B)(5) (Supp.1995), the "catch-all" exception. Although it determined that each of these items of evidence was admissible, the court did not specify the precise bases for its rulings.

II. HEARSAY ISSUES

We review the trial court's evidentiary rulings for an abuse of discretion. See State v. Robinson, 94 N.M. 693, 698, 616 P.2d 406, 411 (1980); State v. Johnson, 99 N.M. 682, 687, 662 P.2d 1349, 1354 (1983). As explained below, we conclude that the statement to Asucena was not hearsay and that the other disputed statements were admissible under the hearsay exception for statements of recent perception.

A. Statement of Asucena Valdez

Asucena testified at trial that during their telephone conversation Connie told her that "it was the happiest day of her life because ... it was the day she was going to die." We conclude that this statement does not constitute hearsay.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." SCRA 1986, 11-801(C) (Repl.Pamp.1994). The purpose for which this evidence was offered is not readily apparent from the record; ¹ however, we are satisfied that the State did not offer this statement in order to prove either of its assertions--that Connie was happy or that she would die that day. Thus, it was not hearsay. See McCord v. Ashbaugh, 67 N.M. 61, 64, 352 P.2d 641, 643 (1960); Jim v. Budd, 107 N.M. 489, 491, 760 P.2d 782, 784 (Ct.App.), cert. denied, 106 N.M. 95, 739 P.2d 509 (1987).

B. Statements of Recent Perception

Austin testified that Connie gave him a handwritten note before he went to bed Sunday evening. The note said:

Take this w/ you. When you go to school call the police & Tell them I'm being held hostage by Joe he has a loaded gun Tell them I'm going to die if They drive up cause he already told me. I love you.

Austin further testified that, some time later that evening, Connie returned to his bedroom and "told me everything was going o.k. and forget about it. Just not do anything about it unless she says." Judy testified that during the course of their telephone conversation on Monday morning, Connie stated that Joe had his gun with him and that it was loaded. When Judy asked if she should call the police, Connie responded, "Judy no; don't call the police. Joe already...