State v. Lucero

• Decision Date: 21 August 1986
• Docket Number: No. 8933,8933
• Citation: 1986 NMCA 85,104 N.M. 587,725 P.2d 266
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Michael LUCERO, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 266

725 P.2d 266

104 N.M. 587

STATE of New Mexico, Plaintiff-Appellee, v. Michael LUCERO, Defendant-Appellant.

No. 8933.

Court of Appeals of New Mexico.

Aug. 21, 1986.

[104 N.M. 589] Jacquelyn Robins, Chief Public Defender, Wendy York, Sheila Lewis, Asst. Appellate Defenders, Santa Fe, for defendant-appellant.

Paul G. Bardacke, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

Defendant appeals from his convictions of three counts of child abuse, contrary to NMSA 1978, Section 30-6-1 (Repl.Pamp.1984) and the enhancement of his sentences, pursuant to the Habitual Offender Act, NMSA 1978, Section 31-18-17(D) (Cum.Supp.1986). Defendant raises six appellate issues:

1. Whether the trial court erred in permitting a witness to testify to hearsay statements made by one of the victims.

2. Whether the trial court erred in barring the withdrawal of defendant's appointed trial counsel and refusing to appoint substitute counsel.

3. Whether the trial court erred in failing to conduct a Faretta inquiry before allowing defendant to represent himself at the habitual hearing.

4. Whether the trial judge abused his discretion in refusing to recuse himself.

5. Whether the trial court erred in imposing three consecutive habitual offender enhancements, thus violating constitutional prohibitions against double jeopardy and cruel and unusual punishment.

6. Whether the trial court erred in refusing to grant a mistrial due to alleged juror misconduct.

We affirm the convictions. Because we hold that the trial court erred in refusing to appoint substitute counsel at the habitual proceeding, we reverse the sentences and remand for a new habitual hearing. Because we remand for a new hearing, we do not discuss Issue 3.

Admission of Hearsay Statements

The child abuse incidents for which defendant was convicted involved three children, ages four years old, three years old, and one year old. The children's mother was defendant's girl friend. The incidents occurred near the early morning hours of February 20, 1985. At about 12:45 p.m., on February 20, the children were taken to the emergency room at the San Juan Regional Hospital in Farmington. Dr. Glennie conducted the examinations of the children.

At trial, the state called Dr. Glennie to testify as to the causation and nature of the children's injuries. Dr. Glennie testified that the four-year-old child had given the history of the injuries. When asked what the child had said, defendant raised a hearsay objection, arguing that the testimony did not come within any hearsay exception. The state responded that the statement was offered for the purpose of medical diagnosis or treatment, thus, within an exception to the hearsay rule. NMSA 1978, Evid.R. 803(4) (Repl.Pamp.1983). The court ruled that the testimony was "probably appropriate," but more foundation was required.

The state then asked the doctor whether he talked to any of the children, and, if so, whether the children told him how the injuries occurred. This questioning also drew another hearsay objection from defendant, and the court again ruled that more foundation was necessary.

Finally, the state asked the doctor if, at the time he obtained the history, he was preparing treatment; if he took the history for the purpose of making diagnosis; and if obtaining the history was for the purpose of determining the kinds of treatment available. When the doctor answered these inquiries affirmatively, the court overruled the hearsay objections and allowed the testimony. The doctor then testified that the four-year-old said that "Michael [defendant] had hit the three children." Defendant raised no objection to this testimony.

On appeal, defendant argues that, on two alternative grounds, the trial court erred in allowing the doctor to testify to the child's statement. First, defendant argues that the testimony does not fall within the Rule 803(4) exception to the hearsay rule. The basis of defendant's argument is that because the child's statement attributed fault to defendant, the statement was not "reasonably pertinent" to the diagnosis and treatment of the children's injuries. See State v. Ruiz, 94 N.M. 771, 617 P.2d 160 (Ct.App.1980). Second, defendant argues that even if the child's statement falls within the Rule 803(4) exception, by allowing the testimony the court denied defendant his constitutionally guaranteed right to confront a witness against him, namely the child.

The state, however, counters that neither of these issues was adequately preserved for appellate review. We agree and discuss each issue separately.

a. Hearsay Objection

It is well-settled that objections must be raised below to preserve an issue for appellate review. NMSA 1978, Evid.R. 103(a)(1) (Repl.Pamp.1983). Not only must the objection be raised below, but the objection must be sufficiently timely and specific to apprise the trial court of the nature of the claimed error and to invoke an intelligent ruling by the court. State v. Casteneda, 97 N.M. 670, 642 P.2d 1129 (Ct.App.1982).

Admittedly, defendant made two general hearsay objections to the doctor's testimony. Both of these objections, however, apparently went to the adequacy of the foundation for the testimony. When the state laid an adequate foundation and the court permitted the doctor to testify to the child's statement, defendant raised no objection. Not until the doctor had related the child's statement was it known that the statement was accusatory in nature. It was at this point that defendant should have raised the argument that he now asserts on appeal.

The argument that statements attributing fault do not fall within the Rule 803(4) exception was not made to the trial court. The court had no opportunity to consider the merits of, or to rule intelligently on, the argument defendant now puts before us. State v. Casteneda. The issue, therefore, was not preserved for appellate review.

b. Confrontation

The issue of denial of the right to confrontation may not be raised for the first time on appeal. State v. Baca, 81 N.M. 686, 472 P.2d 651 (Ct.App.1970). Defendant did not expressly raise the confrontation issue below. Therefore, we must determine whether defendant's general hearsay objections were adequate to preserve the issue for appellate review. Defendant argues that the United States Supreme Court, in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), "clearly established" that, in situations such as the one before us, general hearsay objections are sufficient to preserve the confrontation issue. Defendant, however, reads the holding in Douglas too broadly.

In Douglas, the defendant, on three occasions, objected to the admission of a confederate's confession. In one objection, the defendant grounded his objection on the bases that he was absent during the giving of the confession and that he had no opportunity to cross-examine the witness. The defendant, in raising the objection, however, made no specific reference to a denial of confrontation. Thus, the Alabama Court of Appeals ruled that the defendant did not preserve the confrontation question for appellate review.

The Supreme Court disagreed, articulating a standard by which to gauge whether a federal question has been preserved: "[A]n objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here." Id. at 422, 85 S.Ct. at 1078-79.

Contrary to the facts before the Court in Douglas, defendant here did not make a timely objection. When the doctor testified that the child had implicated defendant in inflicting the injuries, defendant made no objection. Rather, defendant raised his objections prior to the doctor's testimony as to the content of the child's statement.

Additionally, defendant's objection was not sufficiently specific to alert the trial court to the claimed constitutional error. Admittedly, there may be situations, such as in Douglas, where a hearsay objection will preserve a claim. Specifically, "[w]hen a hearsay objection is lodged * * * on the grounds that the declarant has not been made available at trial and, as a result, cannot be subjected to cross-examination, the policy of the confrontation clause is invoked equally with that of the hearsay rule." Dias v. State, 95 Nev. 710, 714, 601 P.2d 706, 709 (1979) (per curiam).

Defendant here, however, only contended that the child's statement did not fall within an exception to the hearsay rule. Such an objection was too broad to raise the right to the confrontation issue. State v. Nelson, 329 N.W.2d 643 (Iowa 1983). The trial court was only required to rule on the objection as it was made. The court fulfilled this duty. " 'Nothing more was required of him.' " Id. at 645 (quoting State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982) ). The court had no opportunity to reach the confrontation issue. On that basis, we refuse to find error. See Fitzpatrick v. State, 7 Ark.App. 246, 647 S.W.2d 480 (1983); State v. Weinberger, 665 P.2d 202 (Mont.1983). Contra State v. Sykes, 569 S.W.2d 258 (Mo.App.1978) (admission of co-defendant's confession over general objection will not bar appellate review because admission of such evidence is plain error).

Refusal to Appoint Substitute Counsel

Prior to the commencement of the trial on September 16, 1985, defendant's appointed counsel, Richard J. Gallagher, filed, on September 13, 1985, a motion to withdraw from representation of defendant. As the basis for the motion, counsel stated that following a discussion of plea negotiations with the district attorney's office, on September 9, 1985, defendant informed counsel that he was "fired" and that defendant would retain counsel. On September 10, 1985, defendant filed a grievance against counsel...