State v. Telles

• Decision Date: 18 July 2011
• Docket Number: No. 28,943.,28,943.
• Citation: 261 P.3d 1097,2011 -NMCA- 083,150 N.M. 465
• Parties: STATE of New Mexico, Plaintiff–Appellee,v.Frankie TELLES, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

150 N.M. 465

261 P.3d 1097

2011 -NMCA- 083

STATE of New Mexico, Plaintiff–Appellee,

v.Frankie TELLES, Defendant–Appellant.

No. 28,943.

Court of Appeals of New Mexico.

April 28, 2011.Certiorari Denied, July 18, 2011, No. 33,035.

Gary K. King, Attorney General, Farhan Khan, Assistant Attorney General, Santa Fe, NM, for Appellee.Jacqueline Cooper, Acting Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

GARCIA, Judge.

{1} Frankie Telles (Defendant) appeals his convictions for second-degree murder (firearm enhancement), aggravated assault (firearm enhancement), tampering with evidence, and conspiracy to commit tampering with evidence. Defendant raises four issues on appeal, including a violation of the Confrontation Clause under the Sixth Amendment. We conclude that the district court committed no error and affirm Defendant's convictions.

BACKGROUND

{2} On the night of February 27, 2004, fourteen-year-old J.O. (Victim), was shot and killed while Victim was walking home in the company of his friend, A.B. Defendant was identified as the person who shot Victim.

{3} A.B. testified that Victim and several friends started their evening by dancing at Club Fusion Teen Center. While walking home down Union Street, three of the friends stopped at the Pic–Quik convenience store to purchase food. Victim and A.B. were not hungry and continued walking down Union Street toward Victim's home. After crossing the railroad tracks, a dark-colored car passed the pair, and the person later identified as Defendant yelled things at them like “East Side” and “West Side.” A.B. testified that he “was really scared,” and the two continued walking. Someone in the car said, “We'll come back for you” and then drove away. Looking back, A.B. saw the car make a U-turn in the intersection past the railroad tracks and return to stop in the middle of the street by A.B. and Victim. Three males got out of the car, one carrying a dark-colored handgun pointed at the ground, one carrying an object described as a brick, and one carrying a silver-colored handgun that was pointed at Victim and A.B. One of the individuals threw the brick-like object and hit Victim in the leg. Defendant, whom A.B. described as the bigger or wider of the three and the one carrying the silver-colored gun, began shooting. After shots were fired, A.B. heard Victim yelling in pain and then pulled Victim to the ground and laid on top of him. One of the three assailants then retrieved the brick-like object while the other two returned to the car, and they subsequently drove away.

{4} D.J. testified that Defendant and several friends started the night in question by drinking alcohol at D.J.'s home. Five of them, including Defendant and D.J., left in R.O.'s blue car to drive to the Pic–Quik on Union Street. The car approached Victim and A.B. on Union Street near the railroad tracks, and Defendant yelled at the pair as the car passed. D.J. indicated that the three individuals who exited the car at the time of the confrontation were Defendant, R.O., and himself. During the investigation following the incident and at trial, D.J. identified Defendant as the person who fired his gun. After the incident, the three got back in the car, and they took D.J. home. D.J. then called his mother, G.J., and told her that he wanted her to come home. G.J. returned home with T.M., and D.J. told them that Defendant had shot somebody. Shortly thereafter, Defendant returned to D.J.'s home in a different car. G.J. and T.M. testified regarding D.J.'s statements made to them about the incident. T.M. also testified that Defendant told her that he had shot somebody. T.M. further testified that she knew that Defendant had a silver-colored revolver.

{5} Upon locating Defendant, the Las Cruces Police Department questioned Defendant about the shooting incident. Defendant indicated that he was not involved in the incident because he was in Alamogordo that weekend with T.M., identified as his girlfriend. T.M. was then questioned by detectives and implicated Defendant in the shooting. Defendant was then given his Miranda warnings, signed a waiver, and was questioned a second time by the detectives. Defendant gave a recorded statement to the detectives at that time. After the recorded statement was completed, the detectives placed Defendant in a room with R.O. with the hope that the two would talk with one another and potentially disclose more information. This conversation between Defendant and R.O. was secretly videotaped by the detectives, the video was played for the jury, and a transcript of the conversation was also provided to the jury. Finally, a telephone conversation between Defendant and his father was also recorded while Defendant was in jail, and the district court admitted the conversation into evidence.

{6} Defendant was convicted in a jury trial and now raises four issues on appeal: (1) whether the district court erred when it admitted D.J.'s out-of-court statement to G.J. and T.M. as an excited utterance pursuant to Rule 11–803(B) NMRA; (2) whether Defendant's constitutional right to confront a witness against him was violated when the district court admitted the secretly videotaped conversation at the police station between Defendant and R. O.; (3) whether the district court erred when it admitted a recorded telephone conversation at the jailhouse between Defendant and his father; and (4) whether the district court erred in admitting evidence regarding Defendant's invocation of his constitutional right against self-incrimination.

DISCUSSIONI. Excited Utterance Testimony

{7} Defendant argues that the testimony by G.J. and T.M. recounting D.J.'s out-of-court statement shortly after the shooting was inadmissible hearsay. The State asserts that the district court properly admitted the statement as an excited utterance pursuant to Rule 11–803(B).

{8} The admission of evidence is within the sound discretion of the district court and will only be set aside upon a showing of an abuse of discretion. State v. Stanley, 2001–NMSC–037, ¶ 5, 131 N.M. 368, 37 P.3d 85. “An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the [district] court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.” State v. Rojo, 1999–NMSC–001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted).

{9} An “excited utterance” is defined as “[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.” Rule 11–803(B). “The theory underlying the excited utterance exception is that the exciting event induced the declarant's surprise, shock, or nervous excitement which temporarily stills capacity for conscious fabrication and makes it unlikely that the speaker would relate other than the truth.” State v. Macias, 2009–NMSC–028, ¶ 30, 146 N.M. 378, 210 P.3d 804 (internal quotation marks and citation omitted). “There is nothing in the case law nor in the ordinary meaning of ‘excited’ which restricts the meaning of the word to any narrow requirement of a frenzied or hyperactive state.” State v. Flores, 2010–NMSC–002, ¶ 48, 147 N.M. 542, 226 P.3d 641. Instead, we examine the totality of the circumstances underlying a particular fact situation, including the following factors:

[H]ow much time passed between the startling event and the statement, and whether, in that time, the declarant had an opportunity for reflection and fabrication; how much pain, confusion, nervousness, or emotional strife the declarant was experiencing at the time of the statement; whether the statement was self-serving; and whether the statement was made in response to an inquiry.

Id. ¶ 49 (alteration omitted) (internal quotation marks and citation omitted). We have also recognized that “the excited utterance doctrine [is] not so much limited in time as it [is limited] to the emotional state of the declarant when making the out-of-court declaration.” State v. Mares, 112 N.M. 193, 201, 812 P.2d 1341, 1349 (Ct.App.1991); see State v. Robinson, 94 N.M. 693, 697, 616 P.2d 406, 410 (1980) (recognizing that “under the excited utterance doctrine, there is no definite or fixed limit on time”); see also State v. Maestas, 92 N.M. 135, 140, 584 P.2d 182, 187 (Ct.App.1978) (noting that “the time sequence continues as long as the [declarant] is under the stress and strain of the excitement caused by the event” and that “[a]dmissibility depends more on circumstances than on time”).

{10} D.J.'s statement to his mother and T.M. was made after he returned home following the shooting. We must review the totality of the circumstances regarding the time sequence of this statement, as well as the stress and emotional strife declarant was experiencing at the time of the statement. See Flores, 2010–NMSC–002, ¶ 49, 147 N.M. 542, 226 P.3d 641. D.J. was only sixteen years old at the time of the shooting. He felt that he was actually in the line of fire and became scared when the shots rang out. He got back in the car, and the next thing he remembered was being taken home. Although the actual time sequence was not described in specific detail, the district court could have reasonably determined that the car returned to D.J.'s home immediately after the shooting. See Rojo, 1999–NMSC–001, ¶ 41, 126 N.M. 438, 971 P.2d 829. Moreover, D.J.'s home was close to where the shooting occurred. Once home, D.J. called his mother and told her, “You need to get home.”

{11} G.J. was at the store with T.M. when G.J. received the call from her son saying, “Mom, get home ... [j]ust get home.” G.J. testified that her son “sounded really scared.” G.J. and T.M. left the store and hurried straight home. When G.J. walked into her home, her son looked scared, and she asked him what...