State v. Casaus

• Decision Date: 12 January 1996
• Docket Number: No. 15981,15981
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Larry CASAUS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 669

913 P.2d 669

121 N.M. 481

STATE of New Mexico, Plaintiff-Appellee, v. Larry CASAUS, Defendant-Appellant.

No. 15981.

Court of Appeals of New Mexico.

Jan. 12, 1996.

[121 N.M. 483] Appeal from the District Court of Bernalillo County; Ross C. Sanchez, District Judge.

Tom Udall, Attorney General, Max Shepherd, Asst. Attorney General, Santa Fe, for Plaintiff-Appellee.

Liane E. Kerr, Albuquerque, for Defendant-Appellant.

OPINION

APODACA, Chief Judge.

¶1 Defendant Larry Casaus (Defendant) appeals his jury convictions on two counts of criminal sexual contact of a minor in the third degree under NMSA 1978, Section 30-9-13(A) (Repl.Pamp.1994) and one count of kidnapping (no great bodily harm) under NMSA 1978, Section 30-4-1 (Repl.Pamp.1994). He raises six issues on appeal. Under the first five issues, he claims that the trial court erred in (1) denying his motion in limine to exclude allegations of prior criminal sexual behavior between Defendant and the alleged victim; (2) denying Defendant's motion to exclude the testimony of one of the State's expert witnesses; (3) limiting the scope of Defendant's cross-examination of a witness by denying the introduction of extrinsic evidence; (4) allowing a videotape to be played as a prior consistent statement under SCRA 1986, 11-801(D)(1)(b) (Supp.1995); and (5) denying Defendant's motion for a mistrial after a State's witness referred to Defendant's willingness to take a polygraph examination. Defendant's sixth issue disputes the sufficiency of the evidence. Under the fourth issue, because the prior consistent videotaped statements were not made before the time the improper influence or motive originated, we hold that the videotaped statements were not admissible under SCRA 11-801(D)(1)(b). Consequently, we reverse and remand for a new trial. We address the remaining issues because they may resurface at trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 At the time of the alleged incident, the victim was nine years old. Because her parents were divorced, the victim and her brother, Chris, spent alternating weekends with their father. When their father had to work, the children would be left with Defendant, who was their uncle. Both the victim and Defendant testified that they played a game called "hide the dollar" in which Defendant would hide a dollar bill in a particular room, and, if the victim could find it, she could keep it. The victim testified that she and Defendant also played the "tickle game" in which Defendant would tickle her stomach, arms, neck, and genitals, both over and under her clothing. Defendant denied that they ever played this game.

¶3 On the day at issue, the victim testified that she went to Defendant's room to play "hide the dollar" and discovered Defendant naked. The victim then testified that Defendant locked all the doors, picked her up and forced her to "move my hands up and down on his private part," and then placed her on the bed where she noticed a wet substance on her face. She also offered testimony indicating that Defendant touched her buttocks and vaginal area, and that he placed his penis inside her rectum. She stated that throughout the alleged incident she tried to get away but "he was holding my hands" and "didn't let me." Defendant denied all allegations and contended that the victim fabricated the entire story because she was angry at him for yelling at her about the fact that she "jammed" a videotape into a VCR and because she wanted more attention from her mother.

¶4 Before trial, Defendant made several motions in limine, one of which was that any testimony concerning Defendant's alleged prior acts, or more specifically, testimony concerning the "tickle game," be excluded. The motion was denied. Defendant also requested that the testimony of Julia Barker, a family counselor with expertise in the field of child abuse, be excluded because Defendant claimed that she was not qualified to testify and because her testimony would impermissibly comment on the victim's credibility. This too was denied.

¶5 During the trial, Defendant attempted to ask the victim's brother whether he had made any false allegations in the past that the victim had molested him. The trial court allowed the questioning but did not allow Defendant to introduce any extrinsic evidence when Chris denied the allegation.

¶6 Pauline Lucero-Esquibel, a former interviewer for the Children's Safe House that conducts forensic interviewing of children who allegedly have been sexually abused, later testified. In the middle of her testimony, the State attempted to play a videotape depicting an interview that Lucero-Esquibel had conducted with the victim. Defendant, who had objected to the playing of the videotape the day before, renewed his objection. Because Defendant had charged that the victim's testimony was a fabrication, the court allowed the playing of the videotape as a prior consistent statement.

¶7 Detective Elizabeth Sanchez later testified that she had interviewed Defendant after the alleged crime. The State asked Sanchez if she had asked Defendant whether he would be willing to take a polygraph examination. Sanchez answered affirmatively and stated that Defendant responded that he would be willing to take the examination. Defendant's motion for a mistrial based on the polygraph examination disclosure was denied.

II. DISCUSSION

¶8 Because we hold that the videotape should not have been admitted as a prior consistent statement, we address that issue first.

A. The Videotape

1. Prior Consistent Statements Under SCRA 1986, 11-801(D)(1)(b)

¶9 A videotape filmed outside of court and offered in court to prove the truth of the matter asserted generally constitutes inadmissible hearsay. State v. Sandate, 119 N.M. 235, 239, 889 P.2d 843, 847 (Ct.App.1994).

¶10 However, SCRA 11-801(D)(1)(b) states:

A statement is not hearsay if ... [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....

¶11 This rule of evidence is identical to Federal Rule of Evidence 801(d)(1)(B). See Fed.R.Evid. 801(d)(1)(B). Before 1995, there was considerable controversy in the federal circuits concerning the interpretation of the federal version of the rule. Some circuits interpreted the rule to mean that only prior consistent statements made before the alleged improper influence or motive originated could be admissible under Rule 801(d)(1)(B). See, e.g., United States v. Quinto, 582 F.2d 224, 234 (2d Cir.1978); United States v. Rodriguez, 452 F.2d 1146, 1148 (9th Cir.1972). Other circuits interpreted the rule to mean that statements made before the alleged motive were admissible as substantive evidence, but if a prior consistent statement was introduced solely to rehabilitate the witness as to a charge of recent fabrication, it did not matter if the consistent statement was made before or after the alleged motive. See, e.g., United States v. Harris, 761 F.2d 394, 399 (7th Cir.1985). Still other circuits imposed no temporal requirement whatsoever and did not distinguish between those prior consistent statements made before or those made after the motive for either substantive or rehabilitative purposes. See, e.g., United States v. Lawson, 872 F.2d 179 (6th Cir.), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989); United States v. Hamilton, 689 F.2d 1262 (6th Cir.1982), cert. denied, 459 U.S. 1117, 103 S.Ct. 753, 754, 74 L.Ed.2d 971 (1983). Earlier this year, the United States Supreme Court settled the issue on the federal level by determining that, under Federal Rule of Evidence 801(d)(1)(B), only those consistent statements made before the motive originated would be admissible. Tome v. United States, --- U.S. ----, ----, 115 S.Ct. 696, 700, 130 L.Ed.2d 574 (1995).

¶12 In 1989, our Court interpreted New Mexico's counterpart to the federal rule. In State v. Lucero, 109 N.M. 298, 784 P.2d 1041 (Ct.App.1989), we adopted "the position of those [federal] circuits [that] do not make it an absolute condition of admissibility that the declarant's statements [be] made prior to the existence of the alleged motive to fabricate." Id. at 303, 784 P.2d at 1046. Lucero chose "a more flexible position that would permit the trial court to examine the circumstances under which the statement was made and make a determination of the statement's relevancy and probativeness to rebut a charge of recent fabrication or improper influence or motive" and stated that, as long as "there are other indicia of reliability that make the prior consistent statement relevant to rebut a charge of recent fabrication or improper motive, then the fact that the statement was made after the alleged motive to fabricate should not preclude its admissibility." Id.; see also State v. Altgilbers, 109 N.M. 453, 457, 786 P.2d 680, 684 (Ct.App.1989), cert. denied, 109 N.M. 419, 785 P.2d 1038 (1990). Because we now determine that Lucero misinterpreted the language and policy of SCRA 11-801(D)(1)(b), we expressly overrule Lucero on this issue and reject any reading of the rule that would allow this "flexible" interpretation. Instead, we interpret the rule as the United States Supreme Court interpreted its federal counterpart in Tome. ¹

a. Language of SCRA 11-801(D)(1)(b)

¶13 The rule states that a prior consistent statement may be introduced as nonhearsay (i.e., substantive evidence) if the declarant testifies and is subject to cross-examination concerning the statement, the statement is in fact consistent, and the statement is offered to rebut a charge of recent fabrication or improper influence or motive. SCRA 11-801(D)(1)(b) (emphasis added). The word "recent" involves a time-line analysis and implies that the charge of fabrication must occur or originate...