State v. Sandate
| Decision Date | 21 October 1994 |
| Docket Number | No. 15273,15273 |
| Citation | 119 N.M. 235,1994 NMCA 138,889 P.2d 843 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Cesario SANDATE, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals from his conviction on one count of criminal sexual contact with a minor. He raises three issues on appeal: 1) whether a videotaped police interview of the alleged victim was properly admitted as a prior consistent statement; 2) whether the district court erred in admitting evidence of uncharged sexual acts between Defendant and others, as well as between Defendant and the alleged victim; and 3) whether it was fundamental error to fail to instruct the jury on the element of unlawfulness. We reverse on issue one, and address issues two and three only as they may arise on retrial.
On May 15, 1992, Susan sent her six-year-old daughter, Tiffany, to Defendant's trailer to borrow some toenail clippers. When Tiffany was gone fifteen to twenty minutes, Susan began to worry. Upon Tiffany's return home, Susan questioned her at length. After thirty-five to forty minutes of questioning, Tiffany reported that Defendant had licked her "private."
At trial, Defendant objected to a neighbor, Sherry, relating comments made to her by her daughter, Amanda, about what Tiffany had told Amanda. Sherry was, however, allowed to testify that Amanda told her "something." Sherry further testified that she then told Susan "something" was happening between Defendant and Tiffany. Sherry also testified that she did not trust Defendant because, on a previous occasion, after promising that her son would not be allowed to go swimming, Defendant allowed him to swim in his underwear.
Amanda was twelve years old at the time of trial. Amanda testified that she saw Defendant tickle Tiffany all over, including her private parts. She, too, was allowed to testify that Tiffany had told her about "something" occurring between Tiffany and Defendant. Amanda also testified that she had reported that "something" to her mother. Finding that the probative value of the testimony outweighed its inflammatory effect, the district court allowed Amanda to testify that she told her mother a second time that Tiffany had said "something." Amanda also testified that her memory was better when she gave her statement to the police than it was "today." She was then asked whether the police had inquired if she had seen Defendant touching Tiffany's breasts, and rubbing or touching Tiffany on the vagina. On the witness stand, Amanda was asked, not whether any of this actually had occurred, but rather, whether she remembered being asked about these things by the police. She had some recollection of such questioning.
Susan testified that Tiffany told her Defendant had molested her and her friend, Omi. Susan further testified that Omi told her mother the same story. Defense counsel objected to this testimony as hearsay, and the district court admonished the prosecutor to avoid hearsay. Susan also testified that Tiffany had been sexually molested on several occasions by at least two neighborhood children.
Susan testified that Sherry had reported to her the night before the alleged incident that Amanda had said "something" about Tiffany and Defendant. Susan said she discounted this report as jealousy and allowed Tiffany and her brother to stay overnight at Defendant's that same night. The State then questioned Susan at length as to whether Tiffany had told her about any specific sexual acts performed by Defendant.
On redirect examination, the prosecutor asked Susan whether Tiffany had told her about other prior sexual contact between Defendant and Tiffany. Susan indicated that Tiffany had said nothing at first, but when asked about specific different types of penetration, Tiffany agreed that some had occurred, but not others. The prosecutor then began trying to refresh Susan's recollection with a prior statement she had given to the police the day of the incident.
Tiffany also took the witness stand. When the prosecutor asked her if Defendant ever did anything painful to her, she answered affirmatively. When the prosecutor asked what Defendant had done, she did not answer. The prosecutor continued questioning Tiffany. During a portion of that direct examination, the following exchange occurred:
....
....
[Prosecutor reminds her that she said she would tell the truth.]
After this exchange, defense counsel asked for a bench conference. He objected to the repeated questions because Tiffany was not answering them. The judge informed the prosecutor that he was not going to allow him to ask totally repetitive questions. When the prosecutor requested a recess, the judge asked if he thought it would do any good, and added that questioning Tiffany was "like pulling teeth."
Later, the judge held another bench conference regarding Tiffany's unwillingness or inability to testify. After much cajoling by the prosecutor proved fruitless, the judge agreed to try questioning her himself. The judge then asked Tiffany the following questions:
When Tiffany returned after a recess, she said that she told both her mother and the officers the truth. She said she had told the officers things that had happened for a "long time," not just on the morning of May 15, 1992. She said that, in addition to sticking his "private" in her "private," Defendant licked her "private." Tiffany said he had also licked her before May 15, 1992, and had touched her "private" with his hands.
The prosecutor then showed Tiffany Defendant's vibrator, and the following colloquy occurred:
Defendant's evidentiary challenges center on the admission of Tiffany's videotaped interview with police the afternoon of the alleged incident. Defendant objected vehemently to the use of the videotape on the ground that it did not fall within the hearsay exception permitted under SCRA 1986, 11-801(D)(1)(b) (Repl.1994). The district court overruled the objection and allowed the videotape to be played during the course of Officer Wilkinson's testimony. On appeal, Defendant contends that the admission of the videotape as a prior consistent statement was error. We agree.
On the videotape, Tiffany responded to questions much more freely than she did on the witness stand. In response to police questioning, Tiffany stated that, after going to his house to get the clippers, Defendant said he wanted to "lick [her] 'private.' " He told her to come into his bedroom and lie down on the bed. Tiffany said Defendant spread her legs "out how far he wanted [her] legs to go, and it hurt [her]." She stated that Defendant licked her "private" and also licked her "butt." On the videotape, Tiffany said that Defendant did not put his "private" in her "private" that morning. She stated that Defendant also made her touch his "private" with her hand. In response to later questions, she further informed the police that he touched her "titties" on "Friday, Monday, and Tuesday" and put his "machine" (vibrator) on her "private."
Relying on State v. Vigil, 103 N.M. 583, 711 P.2d 28 (Ct.App.1985), the State urged admission of the videotape as a prior consistent statement under SCRA 11-801(D)(1)(b), which states that a prior consistent statement offered to rebut a charge of recent fabrication or...
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