State v. Massengill

• Decision Date: 04 December 2002
• Docket Number: No. 22,358.,22,358.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Lawrence MASSENGILL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

62 P.3d 354

133 N.M. 263

2003 NMCA 24

STATE of New Mexico, Plaintiff-Appellee, v. Lawrence MASSENGILL, Defendant-Appellant.

No. 22,358.

Court of Appeals of New Mexico.

December 4, 2002.

Certiorari Denied January 15, 2003.

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Theresa M. Duncan, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 27,847, January 15, 2003.

OPINION

BOSSON, Chief Judge.

{1} Defendant was convicted of criminal sexual penetration and abuse of a child by endangerment. We reverse Defendant's conviction for abuse of a child and remand for re-sentencing. We affirm his conviction for criminal sexual penetration, and affirm the trial court in all other respects. Among other issues, we discuss the circumstances under which out-of-court statements made to parents and medical personnel by a child, too young to remember anything at trial, may be used against the accused at trial in a manner consistent with the Confrontation Clause of the United States Constitution.

BACKGROUND

{2} On May 23, 1998, Defendant agreed to babysit his former girlfriend's two-and-a-half-year-old daughter (Child). Child bumped her head when she fell from her stroller while Defendant was taking her for a walk. Later in the day, Child's mother (Mother) discovered a one-centimeter bruise on Child's labia. When asked how the bruise occurred, Child told Mother that Defendant had pinched her. Subsequently, Child made similar statements to her father (Father) and also to a nurse and doctor who examined her. Defendant denied any knowledge of how Child's labia became bruised.

{3} Following a jury trial, Defendant was convicted of criminal sexual penetration and child abuse by endangerment.

DISCUSSION

Child's Out-of-Court Statements to Parents and to Medical Personnel

{4} By the time of trial, Child, then five years old, remembered nothing about Defendant or the events of May 23, 1998, and was determined to be unavailable to testify. Over Defendant's objections, the trial court admitted Child's out-of-court statements to her parents and to medical personnel, in which she identified Defendant as the one who pinched her labia.

{5} Defendant contends that these out-of-court statements do not fall within any recognized hearsay exception and that their admission violated his constitutional right to confront witnesses against him. See U.S. Const. amends. V, VI, XIV; N.M. Const. art. II, §§ 14, 18; Rules 11-801 to -803 NMRA 2002 (prohibiting the use of out-of-court statements, offered to prove the truth of the matter asserted, unless such a statement falls into a recognized exception); State v. Ross, 1996-NMSC-031, 122 N.M. 15, 22, 919 P.2d 1080, 1087 ("The right of confrontation is thus one of the elements of `due process of law' that the Fourteenth Amendment secures for criminal defendants in state court proceedings."). We review the trial court's admission of Child's hearsay statements under the Rules of Evidence for an abuse of discretion. State v. Lopez, 2000-NMSC-003, ¶ 10, 128 N.M. 410, 993 P.2d 727. We apply a de novo standard of review as to the constitutional issues related to Defendant's rights under the Confrontation Clause.

Child's Out-of-Court Statements to Parents—Present Sense Impression Exception to Hearsay Rule

{6} The trial court ruled that Child's statements to Mother and Father were admissible either as statements of present sense impression or under the catch-all exception to the hearsay rule. See Rule 11-803(A), (X); Rule 11-804(B)(5) NMRA 2002. We first address whether these statements were properly admitted as statements of present sense impression. See Rule 11-803(A) ("A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." (Emphasis added.)); State v. Salgado, 1999-NMSC-008, ¶ 5, 126 N.M. 691, 974 P.2d 661 (stating that admission of hearsay is reviewed for an abuse of discretion).

{7} On May 23, 1998, a few hours after leaving Child in Defendant's care, Mother called to check on Child and could hear Child crying in the background. Defendant explained that he had been walking Child in the stroller and that Child had bumped her forehead when the stroller had fallen off the sidewalk and tipped over. Mother also spoke with Child, who confirmed that she had bumped her head falling from the stroller. Approximately three and a half hours later, Mother returned home and found that Child had a golf ball sized bump on her head. Mother spoke with Defendant for approximately twenty to thirty minutes.

{8} After Defendant left, while putting a diaper on Child, Mother noticed a one-centimeter bruise on Child's labia. Mother asked Child how she got the bruise on her "cha-cha," which was the term Child used to refer to her genitalia. According to Mother, Child responded, "[Defendant] pinched my cha-cha," while making a pinching motion with her thumb and forefingers. About an hour or so later, Father came to the house to pick up Child for a weekend visit. Mother removed Child's diaper and showed Father the bruise on Child's labia. When Father asked Child what had happened, Child said that Defendant had pinched her, and again made a pinching motion with her fingers.

{9} For a statement to be admissible under the present sense impression exception, "there must be a close proximity in time between the event and the statement." Salgado, 1999-NMSC-008, ¶ 13, 126 N.M. 691, 974 P.2d 661 (asserting that reliability is enhanced by limiting the exception in time); see also State v. Perry, 95 N.M. 179, 180, 619 P.2d 855, 856 (Ct.App.1980)

(discussing the importance of contemporaneity in determining whether a statement is admissible under the present sense impression exception). The accident with the stroller occurred approximately four hours before Child told Mother that Defendant had pinched her. Even more time had elapsed before Child's statement to Father.

{10} Although it is uncertain exactly when Child's labia was actually bruised, the record does not support a finding that Child's statements were made "while [Child] was perceiving the event or condition, or immediately thereafter." Rule 11-803(A). Accordingly, we conclude that the statements made by Child to her parents, after a significant time lapse, were not sufficiently contemporaneous to warrant admission under the present sense impression exception to the hearsay rule. See, e.g., State v. Maestas, 92 N.M. 135, 139-41, 584 P.2d 182, 186-88 (Ct.App. 1978)

(holding statements inadmissible when made at least three hours after the declarant had been beaten). In the alternative, we must determine whether these statements were properly admitted pursuant to the catch-all exception to the hearsay rule.

Child's Out-of-Court Statements to Parents—the Catch-All Exception to Hearsay Rule

{11} The trial court ruled that Child's statements to her parents were also admissible under the catch-all exception to the hearsay rule. See State v. Williams, 117 N.M. 551, 560, 874 P.2d 12, 21 (1994)

(stating, in regard to the catch-all exception, "[t]he trial court's ruling concerning the trustworthiness of an out-of-court statement will be upheld unless there has been an abuse of discretion"). Rules 11 803(X) and 11-804(B)(5) contain identical language, both describing the catch-all exception to the hearsay rule. For the purposes of our discussion, we will refer to Rule 11-804(B)(5), which provides in relevant part:

Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that:

(a) the statement is offered as evidence of a material fact;

(b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

(c) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

(Emphasis added.); see also Tartaglia v. Hodges, 2000-NMCA-080, ¶ 9, 129 N.M. 497, 10 P.3d 176

(recognizing that, although inconsequential, when the declarant is unavailable, the appropriate catch-all rule is Rule 11-804(B)(5), rather than Rule 11-803(X)).

{12} Child was too young at trial to recall her statements to her parents, and Defendant does not challenge that Child was unavailable as a witness within the meaning of Rule 11 804(A)(3). Defendant does not question that Child's statements to her parents were offered as evidence of a material fact. Nor does he question their probative value or otherwise argue that Child's statements to her parents did not satisfy the requirements of Rule 11-804(B)(5). Instead, assuming that the statements were admissible under Rule 11-804(B)(5), Defendant argues that the admission of these statements nonetheless violated his constitutional rights under the Confrontation Clause. We have no reason to believe that the trial court abused its discretion by admitting this evidence under Rule 11-804(B)(5). Accordingly, we proceed to address Defendant's constitutional arguments under the Confrontation Clause.

Child's Out-of-Court Statements to Parents—Confrontation Clause Analysis

{13} When a declarant is unavailable, the Confrontation Clause of the Constitution requires that an out-of-court statement must bear sufficient "`indicia of reliability'" to be admissible. State v. Woodward, 1996-NMSC-012, ¶ 38, 121 N.M. 1, 908 P.2d 231 (1995) (quoting Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). Sufficient reliability can be inferred constitutionally, either when the evidence falls "within a firmly rooted ... exception" to the hearsay rule, or when there is a showing of "particularized guarantees of trustworthiness." Salgado, 1999-...