State v. Abril

• Decision Date: 23 July 2003
• Docket Number: No. 22,730.,22,730.
• Citation: 134 N.M. 326,76 P.3d 644
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jesus "Chuy" ABRIL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

76 P.3d 644

134 N.M. 326

STATE of New Mexico, Plaintiff-Appellee, v. Jesus "Chuy" ABRIL, Defendant-Appellant.

No. 22,730.

Court of Appeals of New Mexico.

July 23, 2003.

Certiorari Denied September 9, 2003.

Patricia A. Madrid, Attorney General, Santa Fe, NM, Jacqueline R. Medina, Assistant Attorney General, Albuquerque, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 28,227, September 9, 2003.

OPINION

ALARID, Judge.

{1} Defendant, Jesus Abril, appeals from a judgment convicting him of one count of child abuse, sentencing him to eighteen-years imprisonment, and designating his crime as a serious violent offense. We affirm.

BACKGROUND

{2} On November 4, 2000, Defendant and his girlfriend, Arlene Bonner (Bonner), took their one-year-old son Isaac Abril (Isaac), to the emergency room at Gila Regional Medical Center. Isaac was in a life-threatening state of dehydration. X-rays and a CT scan showed multiple rib fractures. Isaac's injuries made breathing and swallowing painful. Six ribs had been fractured previously and were healing. Five ribs showed fresh fractures. There was uniform agreement among the physicians who treated Isaac that the fractures had occurred on at least two, possibly three, separate occasions.

{3} Medical personnel alerted authorities to the possibility that Isaac had been abused. Isaac recovered from his injuries and was placed in the custody of the Children, Youth and Families Department. Defendant was charged in a criminal information with one count of abuse of a child resulting in great bodily harm. NMSA 1978, § 30-6-1(D) (2001).

{4} At trial, Defendant admitted that he played rough with Isaac, but denied intentionally harming him. Defendant suggested that Isaac's injuries might have occurred in a car accident in late June 2000, or as the result of an older child falling on Isaac at a party in October 2000.

{5} The State introduced undisputed expert medical testimony that due to the flexibility of a young child's ribs, it would have taken extraordinary force to fracture Isaac's ribs. The physician who admitted Isaac to the hospital testified that, in his opinion, Isaac's injuries were caused intentionally, either by being struck while being held firmly or by being squeezed with force sufficient to snap his ribs. The physician rejected the defense's theory that Isaac's injuries had occurred during rough play with Defendant or other children. In anticipation of Defendant's claim that Isaac had been injured in an automobile accident, the State called the paramedic who had examined Isaac at the scene of the June 2000 accident. According to the paramedic, he had palpitated Isaac "from head to toe" and Isaac had not flinched when he palpitated his ribs, leading the paramedic to conclude that Isaac's ribs had not been broken. The State called the older child who Defendant claimed had fallen on Isaac. The older child denied having ever fallen on him. Bonner denied ever seeing the older child hurt Isaac.

{6} The State largely relied on circumstantial evidence to establish the identity of the abuser. The State's evidence demonstrated Defendant's access to Isaac during the estimated dates that the abuse occurred and ruled out other care givers as the abuser. There was testimony that Isaac appeared to be afraid of Defendant, and cried when left alone with Defendant. Bonner testified that she was present when Defendant told Isaac that he was sorry for hurting him and promised never to do it again. Defendant's counsel inadvertently elicited testimony from a social worker who stated that she had been told by Bonner's daughter that "she had seen [Defendant] hit Isaac on his back and on his butt."

DISCUSSION

1. Admission of Character Evidence

{7} Defendant argues that he was denied a fair trial as the result of the introduction of irrelevant and inflammatory character evidence.

{8} The State called Isaac's maternal grandmother, Phyllis Dinwiddie (Dinwiddie), as a witness. On cross-examination, defense counsel asked Dinwiddie whether she disliked Defendant "so it doesn't matter [to you] if he goes [to prison]?" Dinwiddie answered that she did not respect Defendant. Defense counsel then asked Dinwiddie whether "[y]our life would be simpler if he's not around, is that true ma'am?" Dinwiddie asked defense counsel if she could explain why she did not respect Defendant. Defense counsel directed Dinwiddie to "[j]ust answer my question." Dinwiddie conceded that "possibly" her life would be simpler if Defendant were not around.

{9} On redirect, the State asked Dinwiddie to explain why she lacked respect for Defendant. Dinwiddie began to explain:

Well, there are many reasons the first reason is that he was a married man when he started pursuing my daughter 2½ years ago. Second reason was that when he knew that she was pregnant he disappeared for several months. The third reason was that he hauled her dog off and left it, the poor dog made its way home after seven days.

At this point, Defendant objected on the grounds that the State's question "called for a narrative response." The State responded that it had not opened this door. Defendant then moved to strike the comment about the dog. The trial court overruled Defendant's objection, and Dinwiddie continued:

The fourth reason, he tore up [Bonner's] car and he drove it against my wishes, never checked it for oil, ... it was unfixable. He didn't work I offered to take him to a job one time. People called and said that he could go to work for them if he could get a ride down there (inaudible). I went over to the trailer and said ["]you have a job, let me take you down there["] he would not go. He didn't want to work, he would work two weeks, three weeks on a job and then he would quit, lay around the house.

Defense counsel interrupted, stating that he wanted "to renew my objection." The trial court overruled Defendant's objection stating that "it rules the same." Dinwiddie continued:

Well, ... my grandson was afraid of him, my granddaughter would not stay with him for the three months after he moved in, she would stay with me, so I knew something was wrong because she didn't want to live there. He could have stolen from me ... my mother caught him one time going through envelopes, the bank envelopes on my desk, let['s] see, what else, he has no regard or respect for anybody.

At this point, the trial court cut off Dinwiddie, stating "Alright [sic] ... I think we've got the reasons."

{10} Defendant concedes that "[w]here a defense attorney elicits evidence that a witness is biased against the defendant, the prosecutor unquestionably is entitled to rebut that evidence." However, Defendant argues that rebuttal is limited to evidence that shows that the witness is not biased, and that it is improper to rebut a claim of bias with evidence that merely explains the nature or extent of the witness' alleged bias. Defendant's "is so—is not" approach to rebuttal is too narrow. The effects of bias can run from subtle subconscious coloring of testimony to outright perjury. By suggesting to the jury that Dinwiddie would like to see Defendant go to prison, Defendant put Dinwiddie's state of mind toward Defendant in issue and thereby opened the door to the admission of evidence that would permit the jury to judge the extent to which Dinwiddie's desire to have Defendant out of her life might affect her ability to accurately and truthfully report events. Cf. State v. Roberts, 18 N.M. 480, 485, 138 P. 208, 209 (1914) (upholding admission of testimony showing "friendly relations" between defendant and alibi witnesses elicited by State on cross-examination of witnesses; observing that "[t]he purpose of these questions was ... to discredit their testimony, and for such purpose was clearly admissible"). Dinwiddie's reasons for not respecting Defendant were helpful to the jury in evaluating the weight to be given her testimony and therefore met the relevancy standard of Rule 11-401 NMRA 2003. Further, under the principle of limited admissibility, Rule 11-105 NMRA 2003, evidence of Defendant's character and prior acts was admissible to rebut the inference of bias raised by Defendant's questioning of Dinwiddie about her negative feelings toward Defendant, even though this evidence may have been inadmissible for other purposes under Rule 11-404 NMRA 2003.

{11} Defendant argues that even if Dinwiddie's reasons for not respecting Defendant were otherwise admissible, the trial court committed reversible error by not balancing the probative value of Dinwiddie's testimony against its potential for unfair prejudice to Defendant. See Rule 11-403 NMRA 2003. As noted above, the sole objection made by Defendant was that the State's question "calls for a narrative response."¹ The State argues that Defendant's objection failed to preserve a Rule 11-403 argument. Defendant, conceding that defense counsel "did not cite specific rules of evidence in making his objections," argues in his reply brief that defense counsel preserved the Rule 11-403 issue by asking for a mistrial on the following grounds:

I move for a mistrial, your honor, on the grounds that she's brought all kinds of information that's prejudiced [Defendant] in this matter. She's been allowed to talk about things that occurred. And I believe that it's undue prejudice to the jury and would move for a mistrial.

{12} Rule 11-103(A)(1) NMRA 2003 provides that error may not be predicated upon a ruling admitting evidence in the absence of a timely and specific objection. "The purpose of requiring a timely objection is to identify the disputed issue and give the trial judge a chance to correct errors which might otherwise necessitate a new trial." Robinson v. Shapiro, 646 F.2d 734, 742 (2d Cir.1981). By waiting until "the horse was already out of the barn," State v. Neswood, 2002-NMCA-081, ¶ 18, 132 N.M. 505, 51...