State v. Maestas, 3315

Citation1978 NMCA 84, 584 P.2d 182, 92 N.M. 135
Case DateAugust 15, 1978
CourtCourt of Appeals of New Mexico
John H. Lewis, D'Angelo & Farrah, Albuquerque, for defendant-appellant

SUTIN, Judge.

Defendant was convicted of Aggravated Battery in violation of § 40A-3-5, N.M.S.A. (2d Repl.Vol. 6), and Abuse of Child in violation of § 40A-6-1(C) (1975 Supp.). Defendant appeals. We affirm as to Aggravated Battery and reverse as to Abuse of Child.

During the week of November 28 to December 3, 1976, a 25 year old mother and her three year old son, the victims in this case, lived with defendant in his home in Alcalde, New Mexico. Over the course of several days during that week the mother (victim) was severely beaten by someone.

The subject of the controversy is the identification of the person who committed aggravated assault upon the victim.

At about 5:00 p. m. in the late afternoon of December 3, 1976, the victim, with the assistance of defendant, walked from defendant's home across the road to the home of defendant's mother to obtain transportation from Alcalde to Embudo Clinic. Upon arrival at Embudo Clinic, the victim was medically checked and then taken by ambulance to the Espanola Hospital, arriving at about 5:40 p. m. The doctor in attendance began his examination at about 6:00 p. m. He found the victim's condition extremely serious and at the shock level. She was confused, disoriented, with multiple bruises and injuries that covered 75% Of her body. She also had a renal failure. The following morning, the victim was taken to the Bernalillo County Medical Center.

The victim was subpoenaed by the State to testify. She did not appear voluntarily. When asked by the State whether defendant had beat her, the victim would either give no response or answer "no." Nor would the victim respond when asked who it was who beat her severely. After the victim testified that defendant did not strike or hit her with an iron pipe or wooden stick of some sort, nevertheless, the following testimony of the victim appears of record:

Q. Roger (defendant) did not hit you?

A. Would you repeat the question?

Q. Sure. Did Roger hit you during the time span we have been speaking of?

A. (No Response)

Q. You can answer yes or no, if you choose?

A. (No Response)

THE COURT: Can you answer the question . . .?

A. No.

Q. You cannot answer that question, is that what you are telling the jury and the Court, Dorothy; is that right?

A. Yes.

Q. Do you know who it was that beat you up?

A. I think I do.

Q. Who do you think it was?

A. I can't answer it the question.

THE COURT: Why can't you tell, or why can't you answer the question?

A. It's just too hard to answer, Your Honor.

THE COURT: Do you think you can ever answer the question before this jury?

A. No.

THE COURT: You realize that it's very important that that question be answered, don't you?

A. Yes, Your Honor, but I just can't, it's just too hard to answer

THE COURT: Tell us who beat you?

A. I don't know.

THE COURT: I am ordering you to do that?

A. I can't Your Honor, because I am confused.

THE COURT: Are you confused between persons or or what is the confusion?

A. Yes.

THE COURT: Yes, what?

A. Between persons, people.

THE COURT: That is, are you confused as to who beat you?

A. Yes.

THE COURT: What is the confusion?

A. I don't know, Your Honor.

THE COURT: Do you remember who beat you?

A. I am confused about it.

THE COURT: But, do you remember, now who beat you?

A. (No Response)

THE COURT: You can answer that question. Please answer the question?

A. I can't say who beat me.

THE COURT: Was it one or more persons who beat you?

A. I am confused Your Honor, I am. I am.

THE COURT: Well, explain the confusion to me, to us, to this jury?

A. Well, I I can't.

THE COURT: You cannot explain the confusion?

A. No.

THE COURT: Do you Was your son beaten . . . ?

A. I never saw anybody beat him up, Your Honor.

THE COURT: Alright.

The State also questioned the victim about her prior statements made to the sister-in-law and the mother, but not about the statements made to the victim's sister. The victim remembered seeing her mother shortly after the victim was beaten and while at the Espanola Hospital. The victim's testimony about that event is as follows:

Q. Do you remember what you told her?

A. I told her a lot of things.

Q. Can you tell us what you told her?

A. I can't.

Q. You do remember these things, though?

A. Yes.

The district attorney then asked the victim what the truth was. The victim's response was:

"I don't know" and that "nothing was true."

Her sister-in-law asked who had beat her up and the victim answered that she did not know. When her sister asked if it was defendant, the victim testified that she answered:

Yes, because I couldn't tell her the truth, the real . . ..

The victim's reticence at trial is explained to some extent by the testimony of a psychologist who treated the victim for 8 or 9 months prior to trial. The psychologist's opinion (tendered out of the presence of the jury) stated that the victim suffered a mental illness or infirmity such as "psychological blocks."

To establish the identity of the victim's assailant, the State produced as witnesses, the victim's sister, sister-in-law and mother.

Sometime that evening, the victim's mother visited the victim in the hospital. The victim's face and feet were black and blue. She was shaking, her lips were trembling, and her eyes were big, frightened and yellow. The mother asked who did it. When the victim indicated she wanted to tell her mother something, her mother bent over to hear, and the victim identified defendant.

At 8:00 p. m. that evening, about 3 hours after the victim's severe beating, the victim's sister-in-law spoke with the victim. At this time, the victim was "clear headed" and coherent in conversation with her sister-in-law and identified defendant.

At 8:00 a. m. the following morning, the victim's sister spoke with the victim at the hospital as preparation was being made to transport the victim to the Bernalillo County Medical Center Due to her renal failure. At that time the victim identified defendant. The victim told her sister that defendant had beaten her for a week; that the victim made efforts to leave the house, but defendant would not allow it; that defendant hit her with a pipe and a fire log; that he kicked her and threw her outside the house.

Defendant continually objected to the identification of defendant as the person who beat her up.

At the close of the case, the court announced that this was an extremely unusual case; that it permitted critical evidence to be admitted within Rule 804, and if incorrect, then Rule 803 of the Rules of Evidence. Sections 20-4-804, 20-4-803, N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.)

At the close of the State's case, the State and defendant rested.

On appeal, defendant asserts that the admission in evidence of the witnesses' testimony of prior statements of the victim was inadmissible as hearsay; that the only evidence to sustain defendant's conviction was unreliable and contradicted hearsay testimony; that defendant was denied the right to be confronted with the witnesses; and that there was no evidence that defendant harmed the child.

A. The testimony of two State witnesses were not admissible in evidence under Rule 803(1) and (2).

The pertinent part of Rule 803 says The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or Immediately thereafter.

(2) Excited Utterance. 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. (Emphasis added.)

In this case, the victim is the declarant.

Rule 801(c) defines "hearsay" as "a statement, other than one made by the declarant (victim) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Under Rule 803(1) and (2), the victim's statements made to her family to identify the defendant as the assailant and to prove the beating by him were hearsay and were not admissible in evidence unless (1) she made her statements while the beating took place "or immediately thereafter," or (2) unless the victim's statements were made while she was under the stress of the excitement caused by the beating she received.

None of the statements were made while the beating took place or within a slight lapse of time thereafter. Neither were the statements made to the victim's sister-in-law at 8:00 p. m., or to the sister, the following morning, under the stress of excitement. The record does not disclose what treatment, if any, the doctor ministered to the victim between 6:00 p. m. and 8:00 p. m. that evening. Nevertheless, there was no evidence from 8:00 p. m. onward that the victim suffered from shock or stress.

State v. Sanford, 44 N.M. 66, 97 P.2d 915 (1939) involved a victim who was allegedly poisoned by defendant, her husband. A witness came to the victim's bedside approximately three to three and one-half hours after the poison had been administered. The victim was still vomiting, was pretty sick and did not talk much, but she identified the defendant as the person who had given her some poison. This hearsay evidence was held inadmissible and reversible error. Justice Zinn said:

The determination of whether or not the particular testimony is admissible must depend upon the particular circumstances of each case. Declarations which are spontaneously and instinctively made are considered by the courts as part of the res gestae. We find no such spontaneous situation here. Mrs. Sanford, under the ministrations...

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