State v. Woodward

• Decision Date: 08 November 1995
• Docket Number: No. 20477,20477
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. David Marshall WOODWARD, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 231

908 P.2d 231

121 N.M. 1

STATE of New Mexico, Plaintiff-Appellee, v. David Marshall WOODWARD, Defendant-Appellant.

No. 20477.

Supreme Court of New Mexico.

Nov. 8, 1995.

[121 N.M. 3] Tom Udall, Attorney General, Patricia A. Gandert, Assistant Attorney General, Santa Fe, for Appellee.

Sammy J. Quintana, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Appellant.

OPINION

FROST, Justice.

1. Defendant David Marshall Woodward (David) appeals his convictions on charges of first-degree murder, aggravated burglary, and battery. David raises numerous issues regarding evidentiary rulings, sufficiency of the evidence, denial of mistrial, and cumulative error, which he contends mandate a reversal or new trial. We find no merit to any of David's arguments and affirm.

I. FACTS

2. Viewed "in the light most favorable to supporting the verdict," State v. Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 (1993), the evidence adduced at trial is as follows. On the morning of March 28, 1990, a neighbor discovered the body of Deborah Woodward (Debbie), David's wife, submerged in her bathtub. Although initial responding law enforcement officers believed the death resulted from accidental drowning or suicide, the autopsy revealed that Debbie died from drowning as a result of acute ether intoxication. After receipt of preliminary autopsy results, police officers returned to the scene later that day to investigate a probable homicide.

3. David and Debbie had had marital difficulties, and Debbie had filed for divorce in January 1990. After that, David moved in with his mother, and Debbie and their children continued to reside at their house. Under the divorce court's orders, David had visitation with their children every other weekend, during which he and the children stayed at the house and Debbie stayed elsewhere, such as with her parents. Between the weekend visits, David periodically spent time with the children at his mother's house.

4. The State introduced evidence that, episodically during their marriage, David had abused his wife, Debbie had had extramarital relationships, and David was aware of and upset about these relationships. In addition, David admitted to tape recording his wife's conversations. Several witnesses testified that David had threatened various people in connection with the pending divorce and subsequent murder trial. A jailhouse informant also gave a statement to police, which statement he later recanted, that David had confessed to his wife's murder.

5. The defense relied on an alibi as to David's whereabouts at the time of the murder. However, the State introduced contrary evidence, and the time of death was indeterminate. Overall, many facts were highly contested, and during the fifteen-day trial the jury was presented with multiple versions of the events surrounding and the cause of Debbie's death. After the jury returned verdicts of guilty on all charges submitted, the district court sentenced David to consecutive sentences of life imprisonment for first-degree murder, nine years for aggravated burglary, and six months for battery, for a total period of life plus nine and one-half years. David filed a timely notice of appeal pursuant to SCRA 1986, 12-102(A)(2), 12-202(A) (Repl.Pamp.1992).

II. EVIDENTIARY ISSUES

6. The standard of review for evidentiary issues is well established.

On review we defer to the trial judge's decision to admit or exclude evidence and we will not reverse absent a clear abuse of discretion. 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 trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason.

State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994) (citations omitted) (quotations omitted).

A. Admissibility of Testimony of Zelda Maggart and Benjamin M. Butler

7. David's first contention is that the trial court improperly admitted the testimony of Zelda Maggart (Zelda) and Benjamin M. Butler (Butler) concerning events on January 8, 1990. Zelda, Debbie's mother, and Butler, the next-door neighbor of Debbie's parents, testified concerning hearsay statements Debbie made that evening. After David arrived unexpectedly at Debbie's parents' house, David fought with Debbie's father and physically removed Debbie's and his sons. In the meantime, Debbie ran out her parents' back door and into Butler's house.

8. Debbie then threw herself on Butler's sofa, curled into a fetal position sobbing, and exclaimed, "He [David] is going to kill me." Debbie also stated that she would probably never see her boys again. The trial court admitted this testimony under the excited utterance exception to the hearsay rule, which provides: "The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness:.... 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." SCRA 1986, 11-803(B).

9. In State v. Maestas, 92 N.M. 135, 139-41, 584 P.2d 182, 186-88 (Ct.App.1978), the Court of Appeals considered the scope of the excited utterance exception. The victim in Maestas was severely beaten. At trial she could not or would not identify her assailant. Id. at 142, 584 P.2d at 189. The issue was whether the victim's out-of-court statements identifying the defendant as her assailant were admissible. The Court of Appeals held admissible the victim's statements made to her mother shortly after the beating while the victim was still under the stress of excitement from the beating. However, the Court held inadmissible the victim's statements to her sister-in-law later that evening and her sister the next morning. Id. at 141, 584 P.2d at 188.

10. The Court noted that New Mexico follows the Wigmore test for the admissibility of excited utterances.

First. "There must be some shock, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting."

Second. "The utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance."

Third. "The utterance must relate to the circumstances of the occurrence preceding it."

Id. (quoting State v. Buck, 33 N.M. 334, 336-37, 266 P. 917, 918 (1927)). The Court also noted that, under this test, "[t]here is no definite or fixed limit of time." Id. at 140, 584 P.2d at 187. Rather, "each case must depend upon its own circumstances." Id 11. In this case, the witnesses testified that Debbie was still sobbing and lying in a fetal position when she made the contested statements. There was ample evidence from which the trial court could conclude that Debbie was then experiencing shock resulting from David's intrusion into her parents' house, and that Debbie made the statements under the stress of and relating to this shocking circumstance. The trial court did not abuse its discretion in admitting Debbie's hearsay statements through the testimony of Zelda and Butler.

B. Admissibility of Testimony of Stephen B. Maggart

12. David's next contention is that the trial court improperly admitted the testimony of Stephen B. Maggart (Steve), Debbie's brother, concerning Debbie's hearsay statements that David had hit her. There were two statements concerning different incidents, which we discuss in inverse chronological order.

1. The First Incident

13. Steve testified regarding an incident in October or November 1989, when he visited Debbie at her house. When he arrived she was crying and had a small, bloody cut in the corner of her right eye. She told her brother that David had hit her. The trial court admitted this statement under the excited utterance exception to the hearsay rule.

14. There was sufficient evidence to support a conclusion that Debbie was experiencing shock resulting from David's violent behavior, and that Debbie made the statement under the stress of and relating to this shocking circumstance. The trial court considered Steve's testimony in a proffer outside the presence of the jury and did not abuse its discretion in admitting Debbie's hearsay statement under the excited utterance exception.

2. The Second Incident

15. Steve also testified that, shortly before the other incident, he and Debbie were visiting their father in the hospital when he noticed that her faced was flushed and bruised. Steve then volunteered that Debbie said David had hit her. The court interrupted Steve, and defense counsel requested a sidebar at which he asked the State to caution Steve about hearsay. Defense counsel did not ask the court to strike Steve's statement or to give a limiting instruction. Consequently, David waived his objection to this statement. See State v. Sandoval, 88 N.M. 267, 268, 539 P.2d 1029, 1030 (Ct.App.1975) (holding that defendant did not preserve error when, after court sustained defense counsel's objection on grounds of relevancy, defense counsel failed to request that court strike testimony or give curative instruction).

16. In effect, defense counsel asked the court and the State not to let in any more inadmissible hearsay. Defense counsel got the relief he requested, because later, when Steve began to relate additional inadmissible hearsay, the court struck it. Moreover, even if David had preserved his objection that this testimony was erroneously admitted, its admission would be harmless because the evidence was cumulative, see Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 733-34, 779 P.2d 99, 110-11 (1989), since the trial court properly admitted Steve's testimony regarding the first incident.

3. Both Incidents

17. David argues that evidence of both incidents is impermissible evidence of bad character under SCRA 1986, 11-404(A). Character...