State v. Hernandez

Decision Date07 June 1999
Docket NumberNo. 19,089.,19,089.
Citation127 N.M. 769,987 P.2d 1156
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Mateo HERNANDEZ, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Patricia A. Madrid, Attorney General, Patricia Gandert, Ass't Attorney General, Santa Fe, for Appellee.

John A. McCall Law Office of John A. McCall, Albuquerque, for Appellant.


PICKARD, Chief Judge.

{1} Defendant was convicted, after a bench trial, of breaking and entering, NMSA 1978, § 30-14-8 (1981), false imprisonment, NMSA 1978, § 30-4-3 (1963), and aggravated battery, NMSA 1978, § 30-3-5 (1969). He now appeals, claiming that the trial court improperly admitted evidence and erred in finding him guilty of breaking and entering as a lesser-included offense of aggravated burglary. We affirm on the evidentiary issues and reverse Defendant's conviction for breaking and entering.


{2} A grand jury indicted Defendant for aggravated burglary, two counts of child abuse, false imprisonment, and aggravated battery. Because the trial court dismissed the child-abuse charges on directed verdict, those charges are not at issue on appeal.

{3} The incidents underlying the indictment were alleged to have occurred on June 22, 1995. Shortly before that date, Defendant and Lilly Castillo (Castillo) ended their romantic relationship. On the morning of June 22, Defendant went to Castillo's house. Defendant and Castillo gave conflicting testimony as to what happened that morning.

{4} Castillo testified that she had broken off her relationship with Defendant a week before the incident. She stated that she and her two children were all sleeping in her bed when she heard the front door being opened downstairs. Castillo indicated that Defendant entered the bedroom, tried to wake her, and dumped beer on her and the children. According to Castillo, Defendant was intoxicated and smelled of alcohol. An argument ensued. Castillo testified that in the course of the argument Defendant straddled her on the bed, that she struggled against him, and that he touched her breasts and tried to undress her. She stated that she pushed Defendant off of her, but that he had her hair in his hand, so that when he was pushed off he also pulled out a section of her hair. Photographs showing a section of hair the size of a quarter or half-dollar missing from Castillo's temple were introduced at trial.

{5} Castillo testified that she tried to leave the bedroom, but Defendant blocked the door and detained her for about five minutes. She said that once she escaped him, he asked her not to call the police if he agreed to leave. Castillo called the police from a pay phone. She estimated that it was 20 or 30 minutes before they arrived. The two responding officers testified at trial. Both testified to what Castillo told them when they arrived at her home. Defendant objected to the officers' testimony as hearsay, but the trial court overruled the objection.

{6} The first officer testified that Castillo was extremely upset and crying "off and on." He further noted that the children were less upset and that one child's clothes were wet. He testified also that some of Castillo's hair was missing. He was unable to testify with certainty about the condition of the door or whether the lock or doorjamb had been damaged. The second officer testified similarly, indicating that Castillo's shirt and the bed were wet, and that there was minor damage to the door that made it difficult to close, but that there was no splintering on or around it.

{7} Defendant was the sole witness in his own defense. He testified that he had broken off the relationship. He stated that Castillo had called him on June 21, asking him to come to her house. Defendant said he stayed up almost all night playing cards and then went to Castillo's house near dawn. He testified that he was not intoxicated and volunteered that he had not had a drink in a long time. The State successfully argued for the opportunity to cross-examine Defendant about his prior drinking, noting that his rap sheet indicated several convictions for driving while intoxicated (DWI).

{8} Defendant testified that he knocked on the door and Castillo let him in. He stated that the door had been damaged for a few weeks. He testified that they went to the bedroom, and that Castillo poured beer on him in the course of an argument. According to Defendant, the children were in their own bedroom, and Castillo tore her own hair out in anger. He indicated that he left of his own accord, and that Castillo yelled at him, "Watch what I'm going to do to you." On cross-examination, the State asked Defendant about a prior domestic violence conviction. Defendant objected on several grounds, and the trial court overruled his objection. The court noted that Defendant had opened the door to the issue.

{9} The trial court found Defendant guilty of false imprisonment, aggravated battery, and breaking and entering. Defendant objected to the last verdict, arguing that it was not a lesser-included offense of aggravated burglary, and therefore the court could not consider it sua sponte. The trial court rejected Defendant's argument, stating, "I am not stuck with anything other than what I think is legally supported by the evidence."

A. The Trial Court Did Not Err in Permitting Police Officers to Testify About What Castillo Told Them When They Responded to Her 911 Call.

{10} Assuming an adequate factual basis, the question of whether an out-of-court statement was made under circumstances that permit an exception to the hearsay rule is reviewed for abuse of discretion. See State v. Lopez, 1996-NMCA-101, ¶ 13, 122 N.M. 459, 926 P.2d 784. We have acknowledged that the trial court has broad discretion in determining whether a statement was an excited utterance as defined by Rule 11-803(B) NMRA 1999. See State v. Bonham, 1998-NMCA-178, ¶ 7, 126 N.M. 382, 970 P.2d 154; State v. Robinson, 94 N.M. 693, 698, 616 P.2d 406, 411 (1980).

{11} "Excited utterance" is defined by Rule 11-803(B) as "[a] statement relating 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's assessment of whether a statement meets this definition should be guided by consideration of a variety of factors. As articulated in Bonham, these factors include (1) the time lapse between the startling event and the statement, (2) whether the declarant had an opportunity to fabricate the statement, (3) the mental and physical state of the declarant at the time of the statement, (4) whether the statement was self-serving, and (5) whether the statement was made in response to an inquiry. See Bonham, 126 N.M. 382, 970 P.2d 154, 1998-NMCA-178, ¶ 6.

{12} In this case, Defendant objected to hearsay testimony by the police officers. The statements at issue were those in which Castillo recounted the incidents with Defendant to the responding officers. Castillo had already testified that it took the police 20 to 30 minutes to respond to her 911 call. In laying a foundation for the proposed hearsay testimony, Officer Accardi testified that upon first contact with Castillo, she was "extremely upset." He also indicated that "[s]he was crying off and on and she was real excited." The officer also indicated that "a large portion of [Castillo's] hair was pulled out" of the left side of her forehead. He noted that the one child he saw was also upset, but not as upset as his mother.

{13} When the officer again began to relate Castillo's statements, Defendant again objected, citing Lopez and arguing that there were constitutional limitations on the use of such testimony. The court answered, "I assume that we are talking about excited utterance, but still she was here. She was subject to cross-examination. She told her story." The State echoed the argument that Castillo's availability rendered the constitutional problem of confrontation, as described in the Lopez case, inapplicable.

{14} Defendant went on to make a specific hearsay objection based on Lopez. He argued that Castillo's statements were not properly construed as excited utterances because they were answers to police questions, rather than spontaneous declarations. After hearing Defendant's full argument, the trial court again overruled the objection.

{15} We believe that there was adequate factual support for the trial court's ruling. We have held that there is no specific time frame in which a statement must be made in order to fall under Rule 11-803(B). See Lopez, 1996-NMCA-101, ¶ 31,122 N.M. 459,926 P.2d 784. Under certain circumstances, it is reasonable to believe that an individual could be speaking under the stress of a traumatic event 20 minutes after that event. Although the fact that the statements were made to police can also undermine their spontaneity, the mere fact that the statements were responses to questions does not necessarily defeat a finding that they were excited utterances. See Bonham, 1998-NMCA-178, ¶ 8,126 N.M. 382,970 P.2d 154. Here, the trial court could have reasonably believed that the circumstances surrounding Castillo's statement included that she was awakened at dawn by Defendant's breaking into her home, she had been assaulted and physically injured, she was still "extremely upset" and "real excited" when the police arrived, and at least one of her children was also upset. While these circumstances did not necessitate a finding of excited utterance, they were sufficient to support such a finding and are therefore sufficient for us to uphold the trial court's exercise of its broad discretion.

B. The Trial Court Did Not Err by Allowing the Prosecutor's Use of Defendant's Prior Convictions.

{16} Generally, evidence of other wrongs may not be used to prove that a person acted in conformity with a particular trait of character. See State v. Wrighter, 1996-NM...

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