State v. Williams, 20394

• Citation: 1994 NMSC 50,117 N.M. 551,874 P.2d 12
• Decision Date: 18 April 1994
• Docket Number: No. 20394,20394
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert C. WILLIAMS, Defendant-Appellant.
• Court: Supreme Court of New Mexico

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874 P.2d 12 117 N.M. 551 STATE of New Mexico, Plaintiff-Appellee,
v.
Robert C. WILLIAMS, Defendant-Appellant. No. 20394. Supreme Court of New Mexico. April 18, 1994.

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[117 N.M. 553] Sammy J. Quintana, Chief Public Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Tom Udall, Atty. Gen., Joel Jacobsen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BACA, Justice.

Defendant, Robert Williams, appeals his convictions for first degree murder and second degree criminal sexual penetration. Defendant raises three issues on appeal: (1) Whether Defendant's tennis shoes were improperly admitted into evidence; (2) whether the admission of Defendant's girlfriend's testimony violated the New Mexico Rule of Evidence forbidding admission of specific prior acts to show the accused's propensity to commit a crime. SCRA 1986, 11-404(B) (Rule 404(B)); and (3) whether hearsay testimony by the victim's cousin was improperly admitted under the catch-all exception to the hearsay rule, SCRA 1986, 11-804(B)(6) (Rule 804(B)(6)). Pursuant to SCRA 1986, Section 12-102(A)(2) (Repl.Pamp.1992), we review these issues and affirm.

I

The following facts viewed in the light most favorable to sustaining Defendant's conviction, with all conflicts resolved and permissible inferences indulged in favor of the verdict, were adduced at trial. See State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). On the evening of May 8, 1989, Defendant and the victim, Alverda Todacheenie, were seen at the Turnaround Lounge with another gentleman, John Hull. At approximately 10:00 p.m. all three left the bar together in Todacheenie's truck and went to Hull's apartment to drink beer. Sometime after that, Defendant and Todacheenie left and were to meet Hull later at the Skyliner Bar. However, Defendant and Todacheenie did not show up at the bar, and instead drove to an oil well site to engage in consensual sexual intercourse. Once there, Defendant stated his intention to have anal intercourse with Todacheenie. When she refused, he forced her to submit by severely beating her with a board to the point that her scalp was removed from her skull and the bones in her nose were pulverized. While Todacheenie was lying on the ground bleeding profusely, Defendant engaged in anal intercourse with her and then attempted to manually strangle her. Todacheenie was still alive so he got in her truck and ran over her approximately eight times. The cause of death was described as "crushing head, chest and abdomen injuries sustained during the course of being overrun by a motor vehicle." At the scene, areas of blood were discovered on the ground, and a board with blood and hair on it was found in the immediate area. The hair was consistent with Todacheenie's. Tire tracks and Defendant's tennis shoe footprints were also found at the scene.

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[117 N.M. 554] Detective Lynn Izatt of the San Juan County Sheriff's Department was one of the officers at the murder scene. He noticed the footprints on the sandy ground near Todacheenie's body. They were photographed by the sheriff's department and the FBI.¹ On May 16, 1989, Detective Izatt met and interviewed Defendant at Defendant's apartment. FBI special agent Chuck Moffat was also present at this interview. Detective Izatt and Agent Moffat asked Defendant what clothes he had been wearing on the evening of the 8th, when the homicide occurred. In response, Defendant showed them the shoes he had been wearing. The shoes were white tennis shoes that had recently been washed. Detective Izatt examined the soles of the shoes and thought they matched the footprints found at the crime scene. Detective Izatt did not take possession of the shoes at that time.

At the end of the interview, Detective Izatt asked Defendant if he would be willing to take a polygraph examination, and Defendant agreed to do so. When the Defendant came to the sheriff's office to take the polygraph examination, he was wearing the same white tennis shoes he had shown to Detective Izatt and Agent Moffat at his apartment the previous day. Defendant took the polygraph exam, which he failed.² Detective Izatt then confronted Defendant and told him he believed he was lying. At that time, Defendant asked him if they were going to do a test "to see if there was any come in her." Detective Izatt said that a DNA test might be conducted. Defendant then said, "That's fine, because you're not going to find any come in her." Detective Izatt asked, "Why are we not going to find anything in her?", to which Defendant replied, "Because I didn't do anything. I didn't do anything to her." Based on Defendant's polygraph score, his incriminating statements, and the interview conducted by Detective Izatt and Agent Moffat the previous day, Detective Izatt asked again to see Defendant's shoes and then decided to seize them because the soles appeared to have the same tracks as the footprints found at the crime scene. Defendant was not under arrest when Detective Izatt took the shoes, and Detective Izatt did not have a search warrant.

At trial, Defendant's girlfriend, Carmalita Long, testified pursuant to a plea agreement that on May 9, 1989, the defendant arrived home at 4:00 a.m. and had to be let in because he had lost his key. He had a scratch on his elbow and blood on the knee of his pants. Defendant told her that he had been in a fight. He then washed his pants, shirt, and shoes in the sink and in the morning took them to the laundromat. Long testified that she found sand in the sink and that Defendant started acting strangely: pacing and hardly eating. Long also testified over objection that Defendant enjoyed anal sex.

Additionally, Todacheenie's cousin, and close friend, Sarah Woody, testified over objection that Todacheenie thought anal sex was disgusting, not the place God intended for sex, and that anal intercourse could cause cancer.

Defendant appeals the admission of both his girlfriend's testimony regarding his enjoyment of anal sex and Ms. Woody's testimony regarding the victim's repulsion to anal sex. Defendant also appeals the admission of his tennis shoes into evidence as an unreasonable search and seizure.

II

First, we address Defendant's argument that the trial court erred in denying his motion to suppress the tennis shoes. Defendant claims that his shoes were seized in violation of his Fourth Amendment rights. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,

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[117 N.M. 555] shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

We note initially that this case involves a seizure and not a search.³ A search occurs when there is an intrusion on a legitimate expectation of privacy. Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983). Merely inspecting the parts of an object that come into view lawfully does not constitute a search. Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 1152, 94 L.Ed.2d 347 (1987); see also Texas v. Brown, 460 U.S. 730, 738 n. 4, 103 S.Ct. 1535, 1541 n. 4, 75 L.Ed.2d 502 (1983) (plurality opinion). Here, Defendant chose to wear the particular tennis shoes to the sheriff's office to take the polygraph. Detective Izatt noticed that Defendant was wearing the tennis shoes he suspected made the tracks found at the crime scene. The tennis shoes came into Detective Izatt's view lawfully and no search occurred. The question is whether the seizure of the tennis shoes which followed violated the Fourth Amendment.

In reviewing the trial court's decision on an issue raised by defendant's motion to suppress, "the appellate court may determine if probable cause did or did not exist by an examination of all the record surrounding an arrest or search and seizure." State v. Martinez, 94 N.M. 436, 439, 612 P.2d 228, 231, cert. denied, 449 U.S. 959, 101 S.Ct. 371, 66 L.Ed.2d 226 (1980). In all cases of warrantless arrest or seizure, the ultimate question is whether the search or seizure was reasonable. Id. at 440, 612 P.2d at 232. This Court therefore examines the whole record "so that the full truth may be considered, as to reliability and the existence of probable cause." Id.

The State argues that the evidence comes within the plain view exception to the Fourth Amendment warrant requirement. "The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). The plain view exception to the Fourth Amendment occurs under two types of circumstances. First, and most commonly, the exception permits seizure of evidence discovered in the course of an intrusion for which there was prior justification, such as a search warrant, a hot pursuit, or a search incident to arrest. State v. Powell, 99 N.M. 381, 384, 658 P.2d 456, 459 (Ct.App.), cert. denied, 99 N.M. 358, 658 P.2d 433 (1983). Second, the plain view exception applies when no search, in the Fourth Amendment sense, has occurred at all. Id. It applies in those instances in which an observation is made by an officer without a prior physical intrusion into a constitutionally protected area. Id. (quoting 1 W. LaFave, Search and Seizure Sec. 2.2, at 242 (1978)); see also Horton v. California, 496 U.S. 128, 135, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112 (1990) (stating that the plain view doctrine applies where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object); State v. Calvillo, 110 N.M. 114, 117, 792 P.2d 1157, 1160...