State v. Leyba

• Decision Date: 22 October 2012
• Docket Number: No. 32,541.,32,541.
• Citation: 289 P.3d 1215,2012 NMSC 037
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Marino K. LEYBA, Jr., Defendant–Appellant.
• Court: New Mexico Supreme Court

289 P.3d 1215

2012 NMSC 037

STATE of New Mexico, Plaintiff–Appellee,

v.Marino K. LEYBA, Jr., Defendant–Appellant.

No. 32,541.

Supreme Court of New Mexico.

Oct. 22, 2012.

Aarons Law Firm, P.C., Stephen D. Aarons, Santa Fe, NM, for Appellant.

Gary K. King, Attorney General, Yvonne Marie Chicoine, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

BOSSON

, Justice.

INTRODUCTION

{1} In this first-degree murder case, the State improperly admitted into evidence a diary of the decedent which was inadmissible hearsay. Because the diary was important to the State's case, and the State repeatedly relied upon its contents throughout the trial, we conclude that the error was not harmless and the convictions must be reversed. Accordingly, we remand to the district court for a new trial.

BACKGROUND

{2} On May 22, 2009, Marino “Reno” Leyba (Defendant) fatally shot his pregnant girlfriend, Sarah Lovato, and her father, Bennie Lovato, after entering their apartment with a firearm. A grand jury indicted Defendant on two counts of first-degree murder, aggravated burglary, tampering with evidence, and criminal abortion. The State dismissed the criminal abortion charge without prejudice before trial.

{3} The State maintained that Defendant entered the Lovato apartment without permission, planning to kill Sarah. To support its theory of the case, the State introduced evidence that Defendant was increasingly violent and controlling towards Sarah, including evidence of specific acts of domestic violence against Sarah. To this end, the State introduced Sarah's diary into evidence through Sarah's sister, Julie, over Defendant's confrontation and hearsay objections. The entries in Sarah's diary described her fears about Defendant, confusion about their relationship, and an incident in which Defendant physically abused Sarah.

{4} Defendant's mens rea was the central point of contention at trial. While Defendant admitted that he shot Sarah and her father, he testified that he did not plan to do so and that he believed he was acting in self-defense. The jury was instructed on the full range of options for homicide, from willful and deliberate murder down to manslaughter.

{5} On the night in question, Defendant was working as a security officer, and he carried mace and a gun as part of his uniform. He also testified that he only entered the Lovato apartment after the door was opened for him. Defendant said that he was talking to Sarah inside the apartment when Bennie came towards him quickly, with something that looked like a gun. He thought Bennie was going to shoot him, so he sprayed Bennie with mace, getting some mace in his own eyes. Defendant testified that he feared for his life, dropped the mace, and shot his weapon a few times. At some point Sarah went into the kitchen, and Defendant fired again when he heard her coming back. According to Defendant, he never wanted, much less planned, for any of this to occur.

{6} Notwithstanding Defendant's trial testimony, the jury found him guilty of willful and deliberate first-degree murder of Sarah, first-degree felony murder of Bennie, aggravated burglary,^FN1

and tampering with evidence. Defendant appeals his convictions, arguing that Sarah's diary, as well as his booking photograph, were erroneously admitted into evidence, which prejudiced his defense. In addition, he argues that the jury instructions that he coauthored with the State were erroneous.

DISCUSSION

The Diary—a Critical Piece of Evidence to the State's Case for Willful and Deliberate Murder

{7} The State called Sarah's younger sister, Julie, as a witness. Julie testified that Defendant's behavior had become scary to Sarah. She said that Defendant was not happy about Sarah's pregnancy. At some point during Sarah's pregnancy, Julie saw her sister with bruises on her face

, a fat lip, and a black eye.

{8} After eliciting Julie's observations, the State attempted to introduce Sarah's entire diary into evidence. Defendant renewed pre-trial objections to the diary, specifying that Sarah's alleged statements in her diary were inadmissible hearsay, and that their admission would violate his constitutional right to confrontation.^FN2

Over objection, the court admitted the diary into evidence, and allowed Julie to read to the jury two of the three entries in their entirety. Because the content of the diary is important to our analysis, we recite the significant entries verbatim. The first entry was dated March 17, 2009, a little over two months before the shooting:

on da 17th was da scaryest day of my life ... cuz my boyfriend hit me cuz we were argueing so he gave me a fat lip and a black eye an a big bruzed on my check bone, an he coked me an try 2 hit my tummy but I blocked it. I so don't know wat 2 do I still love him but Im scared 2 get bak wit him I don't want it 2 happen again ... Im so mad an sad an confused, ugh well all write bak an let u know wat happens k bye..[.] P[.]S. I diden't think he would ever do dat but I geuss I was wrong.

(Ellipses in original.) The second entry, dated March 21, 2009, stated:

hey it's me again well Im starting 2 talk 2 Reno again, he says he thinks bout wat happend dat one day an he said hE wish hE can go bak an chang it. or I shouldent have gone wit him 2 work I wish I never did 2, but anywho he told me he loved me an I dident say it bak, cuz I was Scared 2 but I said it I wish I dident but I still love him, bit I still don't know if I should be wit him Im scared to even see him, I think if I stay wit him Im not going 2 move in wit him or marry him 4 a long time I jus don't want dat 2 happen again. he said when he hit me he was thinking bout David and leroy an thought I was cheating on him but he said he dident mean 2 do dat but idk wat to belive anymore Im so confused. I wish god would give me a sine, but I know he will help me, I want 2 go 2 Church Sunday but Im scared 2 look at him or be by him but let's c wat happens I wanna hug him so bad tho. but Im thiking of Seeing him next Sunday so he can realy think an stuff.. well all write bak an let u know wat happens. K bye P[.]S. Please god help me wat 2 do Amen.

A third entry in the diary, which the State did not ask Julie to read, was entered into evidence for the jury to examine. Dated April 8, 2009, it read:

I been haveing a bad day 4 2 day's cuz me & reno got in a fight an he says I need 2 think if I wanna be wit him or be in da world but I wanna be wit him so we have nt talked 2 each other 4 2 day's I miss him so much tho I feel so alone when I don't talk 2 him. but idk im waiting 4 him 2 call me hopefuly it will be soon k well all let u know wat happens K bye.

{9} Sarah's diary is an “organizer” designed for a young person—it is a small six-ring binder, with a cartoon animal on the plastic cover, and includes a page of colorful animal and word stickers. Its patterned and colored pages are divided into sections labeled “planner,” “diary,” “to do ...,” “notes,” and “friends.” Sarah's entries, described in detail above, are handwritten in the first four pages of the “notes” section. In addition, some of the other sections have entries, such as contact information in the “friends” section and one entry in the “to do ...” section.

Hearsay Analysis

[1]

{10} Hearsay is an out-of-court statement which is later offered in evidence to prove the truth of the matter asserted. Rule 11–801(C) NMRA. Under our rules of evidence, hearsay is inadmissible unless a valid exception applies. Rule 11–802 NMRA. We review the admission of evidence pursuant to the hearsay rule for an abuse of discretion. State v. Largo, 2012–NMSC–015, ¶ 22, 278 P.3d 532.

{11} The diary entries were obviously statements of the declarant, Sarah, made prior to trial and later offered into evidence to prove the truth of the matter asserted: that Sarah was afraid and Defendant was violent. The statements are inadmissible hearsay unless the State can identify a recognized exception.

{12} The State argues that the diary entries dated March 17, and 21, 2009, were properly admitted, in their entirety, under one of three exceptions to the hearsay rule: (1) the exception for a then-existing mental, emotional, or physical condition; (2) the exception for a present sense impression; or (3) the residual hearsay exception. In addition, the State asserts that the March 21, 2009, statement is actually not hearsay at all because it is a statement by a party opponent. The State does not identify which portions of the March 17, and 21, 2009, it believes fall under which exception to hearsay. In addition, the State does not argue that the third diary entry, April 8, 2009, is admissible under any exception. We examine each of these hearsay exceptions, and find them wanting.

Then–Existing Mental State

[2]

[3]

{13} The exception for a then-existing mental, emotional, or physical condition applies to “[a] statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief ...” Rule 11–803(3) NMRA. “Although [the exception] allows hearsay statements that show the declarant's then-existing mental condition, the rule does not permit evidence explaining why the declarant held a particular state of mind.” State v. Baca, 120 N.M. 383, 389, 902 P.2d 65, 71 (1995) (emphasis added). The exception is limited to statements showing the mental state, not its cause.

{14} Sarah's March 17, 2009, diary entry includes some statements of her then-existing state of mind, such as “Im scared” and “Im so mad an sad an confused.” Other statements, however, such as “my boyfriend hit me cuz we were argueing so he gave me a fat lip and a black eye an a big bruzed on my check bone,” describe past events and not her present state of mind. Clearly, those statements were not admissible under this exception.

[4]

{15} Our concern goes deeper. Even with regard to statements expressing...