State v. HnulikState v. Hnulik
Hector H. Balderas, Attorney General
Santa Fe, NM
Laurie P. Blevins, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
William A. O‘Connell, Assistant Appellate Defender
Santa Fe, NM
for Appellant
KIEHNE, Judge.
{1} Defendant appeals his conviction for second-degree murder arising from the shooting of his girlfriend, Brandy Capps (Victim). Defendant argues that statements made by Victim should not have been admitted at trial because they were inadmissible hearsay, and that his conviction must be reversed. We hold that all but one of the challenged statements were properly admitted under
BACKGROUND
{2} Defendant was in a romantic relationship with Victim for the two years that preceded her death. The evidence showed that the relationship was rocky and Defendant occasionally became violent with Victim. At the time of Victim‘s death at the end of July 2010 she lived in Lubbock, Texas, but was visiting Defendant and friends in Artesia, New Mexico, where she used to live. On the day of Victim‘s death, Defendant was in the driver‘s seat of Victim‘s car as the couple set out from Defendant‘s father‘s house to run errands. Victim was in the passenger seat. Defendant testified that he reached into the back seat area to get a revolver, and as he brought the gun to the front seat area, it went off. A bullet struck Victim in the face and she died as a result of the gunshot wound.
{3} At trial, the State argued that Defendant intentionally shot Victim to prevent her from testifying against him in a domestic violence case pending against him in Lubbock, and out of anger because she planned to break up with him. Defendant testified that the shooting was an accident and that the gun simply “went off.” Defendant claimed that the gun was in a bag of clothing in the back seat of the car. He testified that he did not know the hammer of the gun was cocked, and that as he was bringing the gun over the seat, the gun fired accidentally.
{4} Among the evidence the State presented to prove that the shooting was not an accident, Victim‘s friends and family testified about statements Victim had made to them. Collectively, they testified that Victim stated that she was anxious to leave Artesia and never return, and that she wanted to break off her relationship with Defendant. The State also presented evidence of a 2009 domestic
{5} Defendant challenges the admission of Victim‘s statements on hearsay grounds, and argues that the domestic violence incident was improper propensity evidence and that it was unfairly prejudicial. For the reasons that follow, wе are not persuaded.
DISCUSSION
{6} “We review the admission of evidence under an abuse of discretion standard and will not reverse in the absence of clear abuse.” State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. An abuse of discretion occurs when a trial court “exercises its discretion based on a misunderstanding of the law.” State v. Vigil, 2014-NMCA-096, ¶ 20, 336 P.3d 380.
I. Two of Victim‘s statements were relevant to negate Defendant‘s accident defense
{7} The State introduced statements that Victim made to two witnesses, Brooklyn Edwards, Victim‘s niece, and Dova Cronian, a former coworker and friend of Victim‘s. Defendant objected to these stаtements as hearsay. The Court admitted the statements made to Ms. Edwards as both excited utterances and evidence of Victim‘s state of mind and future intent, and it admitted the statements made to Ms. Cronian as evidence of Victim‘s state of mind.
{8} Ms. Edwards was one of Victim‘s closest friends. Ms. Edwards testified that Victim moved to Lubbock from Artesia because she wanted to start getting her life together, go to school, and leave Defendant. She understood that Victim planned to go to Artesia for the weekend in order to get the rest of her belongings and to talk to Defendant to “get things figured out.” Ms. Edwards testified that Victim called her on Friday night, the night before the shooting, and said that she was upset, angry, ready to go home to Lubbock, “tired of everything” and frustrated. Victim also told her that she and Defendant had been fighting. Victim planned to get all of her things, go home to Lubbock, said she was “done with him,” and did not want to return to Artesia.
{9} Ms. Cronian testified that Victim called her because Victim had run out of gas in Defendant‘s mother‘s driveway. She stated that Victim sounded anxious and said “please hurry and come over here and bring me gas as fast as you can get here.” When Ms. Croniаn arrived, Victim said that she “needed [Ms. Cronian] to get the gas as soon as [she] could because [Victim] needed it so she could leave as soon as possible.” Victim told Ms. Cronian that she was going back to Lubbock and was never returning to Artesia.
{10} Ms. Cronian invited Victim to go with her to get the gas, but Victim said that she could not, again asking Ms. Cronian to hurry because “she needed to leave as soon as possible,” and stated that she would explain later why she could not go with her. After dropping off the gas, Ms. Cronian called Victim and asked her if she would be all right, and Victim reрlied, “I will be. I will be leaving as soon as I can, and I‘m gonna get the fuck out of here, and I‘m never fucking coming back.” Victim then assured Ms. Cronian that she would call her as soon as she got onto the highway to Lubbock.
{11} “Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.” State v. King, 2015-NMSC-030, ¶ 24, 357 P.3d 949 (internal quotation marks and citation omitted); see
{12} But it is not enough that a declarant‘s statements fall within the state-of-mind hearsay exceptiоn; they must also be relevant to some issue in the case. See
{13} Baca explains that evidence of a crime victim‘s state of mind is commonly relevant, and properly admissible, to help a jury decide issues of “(1) self defense (rebutted by extrajudicial declarations of the victim‘s passive state of mind), (2) suicide (rebutted by statements inconsistent with a suicidal bent), and (3) accident (rebutted by [the] victim‘s fear of placing self in way of such harm).” Id. ¶ 21. Such evidenсe of the victim‘s state of mind “is a relevant part of the conduct in question[,]” because it “precedes and informs the conduct.” Id. That sort of properly-admitted evidence “is distinguishable from a state of mind that arises out of the conduct and is relevant not because it itself is of consequence but only because an inference can be drawn therefrom to make the existence of some other fact more or less probable.” Id. The latter sort of evidence, which is offered after the fact to show “the truth of the underlying facts rather than solely to show state of mind,” must be excluded because of the danger that “the jury will consider the victim‘s statement of fear [as] somehow reflecting on [the] defendant‘s state of mind rather than the victim‘s[.]” Id. ¶ 22 (internal quotation marks and citations omitted).
{14} Under this standard, all of Victim‘s statements made to Ms. Edwards and Ms. Cronian were properly admitted, except for Victim‘s statement to Ms. Edwards that she was upset because she and Defendant had been fighting, which we will address below. These statements demonstrated Victim‘s state of mind and future intent: that she was upset, wished to end her relationship with Defendant, and intended to return home tо Lubbock as soon as possible. Evidence of Victim‘s state of mind was relevant because it “preced[ed] and inform[ed] the conduct” at issue. Id. ¶ 21. At trial, Defendant claimed that the shooting was an accident. In support of this claim, defense counsel argued that although Victim and Defendant had arguments, their relationship was generally good, and that there was no tension or argument between them in the hours leading up to the shooting. Victim‘s statements were relevant because they provided a possible motive for the shooting—Defendant‘s anger over her plan to break up with him—and rebutted Defendant‘s claim that he shot Victim by accident. Defendant acknowledged that they had been arguing immediately before the shooting when he said, “I don‘t even remember what we were arguing about.” In closing argument, the State asked the jury to consider Victim‘s statements as evidence that Defendant had a motive to shoot Victim.
{15} Defendant argues, however, that Victim‘s statements were irrelevant because his own mental state was the only one at issue. Defendant argues that statements about a victim‘s state of mind might be admissible to rebut a defense claim that a victim‘s own conduct caused his or her accidental death, but here there was no claim that Victim fired the gun. Instead, Defendant never disputed that he fired the fatal gunshot, and the only question was whether he intended to shoot Victim, or whether the shooting was an accident.
{16} In support of his claim, Defendant relies on our Supreme Court‘s opinions in Baca and Leyba, but those opinions are distinguishable. First, neither opinion disapproves of evidence about a victim‘s state of mind that is relevant to show the existence of a possible motive for the defendant‘s actions. Second, both opinions involved very different facts that made the state-of-mind statements then at issue inadmissible.
{17} First, Baca did not involve a claim of self-defense, accident, or suicide. In Baca, the defendant was charged with killing his wife by shooting her, and then running over her and their three-year-old daughter with a car. See Baca, 1995-NMSC-045, ¶¶ 1-2. His defense was that another man committed the crimes. See id. ¶ 8. The daughter survived, and later nodded her hеad when a therapist asked if she was afraid of her father. See id. ¶ 9. Testimony about this non-verbal statement was admitted against the defendant at trial. See id. ¶ 11. On appeal, our Supreme Court held that this statement was both irrelevant and unfairly prejudicial. Id. ¶¶ 20-22. Our Supreme Court explained that state-of-mind evidence is frequently relevant when a criminal defendant raises issues of self-defense, suicide, or accident: “In such cases the state of mind of the victim is a relevant part of the conduct in question[,]” because it “precedes and informs the conduct.” Id. ¶ 21. That sort of evidence “is distinguishable from a state of mind that arises out of the conduct and is relevant not because it itself is of consequence but only because an inference can be drawn therefrom to make the existence of some other fact more or less probable.” Id. Baca held that the daughter‘s after-the-fact fear of her father was inadmissible because it had not been offered solely to show the daughter‘s state of mind, but was instead offered to prove “that her father attempted to kill her and that he did in fact kill her mother[.]” Id. ¶ 22.
{18} Second, the daughter‘s statement in Baca was irrelevant because it said nothing about her state of mind before the criminal act occurred, and thus provided no relevant information about the crime itself or the defense. Instead, the daughter‘s statement arose out of the alleged conduct and was offered for the improper purpose of encouraging the jury to infer that because the daughter was afraid of her father, he must be guilty as charged. Here, by contrast, Victim‘s statements related to her state of mind before the shooting, and were relevant because they demonstrated the existence of a possible motive for Defendant to shoot her.
{19} Defendant‘s reliance on Leyba is equally unavailing. In that case, the defendant killed his pregnant girlfriend and her father, but claimed that he acted in self-defense. 2012-NMSC-037, ¶¶ 2-4. At trial, the state offered excerpts from the victim‘s diary in which the victim wrote that her boyfriend (i.e. the defendant) had beat her up, and she expressed fear of the defendant based on those acts. See id. ¶¶ 3, 8. Our Supreme Court held that some of the statements were improperly admitted because they did not reflect the victim‘s state of mind at the time she wrote them. But even thоse that did were irrelevant because “anxiety or confusion or even her fear proves nothing without the cause of those emotions—[the d]efendant‘s alleged prior acts—which are not admissible under this hearsay exception.” Id. ¶ 15. The state did not explain why the victim‘s fear was relevant, and thus the statements were only offered to show the defendant‘s state of mind, which was improper. See id. ¶¶ 15-16. In other words, the cause of the victim‘s fear was not properly admitted under the state-of-mind exception, and the victim‘s fear, by itself, did not rebut the defendant‘s self-defense claim. Here, by contrast, all of Victim‘s statements except her statement that she was upset because she and Defendant had been fighting were properly admitted under the state-of-mind exception, and they were relevant because they showed the existence of a possible motive for the shooting.
{20} We are not alone in holding that a victim‘s statements of intent to break up with or divorce a partner or spouse are properly admitted to show the existence of a motive to
II. Admission of Victim‘s hearsay statement that she and Defendant had been fighting was erroneous but harmless error
{21} Ms. Edwards‘s testimony that Victim said she was upset because she and Defendant had been fighting was inadmissible as evidence of Victim‘s state of mind, because New Mexico law is that the state-of-mind exception does not include any statement which explains the cause of the declarant‘s state of mind. See King, 2015-NMSC-030, ¶ 27; Leyba, 2012-NMSC-037, ¶ 13 (“Although [
{22} Neither was thе statement admissible as an excited utterance under
{23} At trial, the State argued that the statements made to Ms. Edwards were excited utterances because Ms. Edwards stated that Victim was yelling and on the verge of tears while she was making the statements. On appeal, howevеr, the State does not defend the district court‘s ruling that this statement was admissible as an excited utterance, and with good reason. The State did not present evidence about the factors used to determine the spontaneity of the statement. The State did not, for example, present evidence about when the argument between Defendant and Victim occurred, so it is not possible to determine the amount of time which passed between the startling event and the statement, or to determine whether Victim had time to reflect or fabricate. Further, no evidence was presented to show whether this argument was of the kind that would cause Victim to experience so much “pain, confusion, nervousness, or emotional strife” that she would have been unable to reflect or fabricate her statements. Suazo, 2017-NMSC-011, ¶ 11 (internal quotation marks and citation omitted). Thus, we hold that the statement was not admissible as an excited utterance under
{24} The State contends that even if this Court were to hold that the testimony at issue on appeal in this case was inadmissible, its admission was harmless error. Defendant does not addrеss the effect the errors he alleges had on the verdict. Improperly admitted evidence is reviewed for non-constitutional harmless error. See State v. Serna, 2013-NMSC-033, ¶ 23, 305 P.3d 936. Non-constitutional error is harmless “when there is no reasonable probability [that] the error affected the verdict.” State v. Tollardo, 2012-NMSC-008, ¶ 36, 275 P.3d 110 (emphasis, internal quotation marks, and citation omitted). Harmless error review “requires a case-by-case analysis.” Id. ¶ 44.
{25} We hold that the admission of the hearsay statement through Ms. Edwards was harmless error, because there is no reasonable probability that the inadmissible evidence contributed to Defendant‘s conviction. See id. ¶¶ 36, 43. Regardless of the admission of the hearsay statement, there was ample evidence that Defendant was abusive to Victim and that the couple had a tumultuous relationship, and thus the statement was cumulative. Victim‘s mother testified, without objection, that she started to dislike Defendant “when the abuse began.” Ms. Edwards also testified, without objection, that she had heard Defendant threaten Victim before, making statements such as “I‘m gonna whoop your ass,” and “I‘ll kill you, bitch.” Ms. Edwards also explained her understanding that Victim did not intend to drop the domestic violence charges pending against Defendant in Lubbock. Again, no objection was made to this testimony. Defendant himself testified that he was physical with Victim “a couple times,” before retreating and stating that he only hit her one time, which led to his arrest in Lubbock. Ms. Cronian testified that Victim was acting anxiously and strangely on the day of the shooting. Further, there was no objection to the testimony of another witness, Pam Grey, who stated that on the day before the shooting, Victim sent her a text message saying that she wanted to leave Artesia. Evidence was also presented that, shortly following the shooting, Defendant either said “I don‘t even remember what we were arguing about,” or “we weren‘t even fighting.” A reasonable juror could infer from this statement that the couple was arguing, and that Defendant intended to shoot Victim, but upon later reflection realized that his reasons for doing so were inadequate.
{26} Testimony was also presented from an acquaintance of Defendant who was then incarcerated for violation of probation, and had previously been convicted of felonies including forgery. The witness testified that he
III. Defendant‘s domestic violence arrest in Artesia was properly admitted under Rules 11-404(B) and 11-403
{27} At trial, the State presented evidence of Defendant‘s arrests in Lubbock and Artesia, both of which showed that Defendant had physically abused Victim. Defendant does not argue that the admission of evidence of his June 2010 arrest in Lubbock was improper. Rather, he argues that the evidence of his 2009 arrest in Artesia was improper character evidence which should have been excluded under
{28} We note that ”
{29} In this case, the State offered evidence of the dispute in Artesia to establish that Defendant had a motive to kill Victim to prevent her from testifying against him in domestic violence cases. Although the event in Artesia did not lead to formal charges, his statement at the time, “I‘m not going to jail over this shit,” was still relevant to show that he generally had a strоng desire not to go to jail, which supported the State‘s argument that he was motivated to shoot Victim in part to avoid going to jail for the Lubbock charges, which Victim had not dropped. The evidence was also relevant to rebut Defendant‘s efforts to portray his relationship with Victim as a loving one and his efforts to minimize the seriousness of their previous disputes. See Woodward, 1995-NMSC-074, ¶ 17 (holding that evidence of the defendant‘s violent behavior toward the victim, his wife, was admissible to show “motive, intent, plan, or knowledge“); see also State v. Rojo, 1999-NMSC-001, ¶ 47, 126 N.M. 438, 971 P.2d 829 (admitting evidence of the defendant‘s prior violent acts towards victim to rebut the defendant‘s argument that she loved him and had no motive to reject him).
{30} Defendant placed his own intent at issue by claiming that the gun fired by accident. See State v. Niewiadowski, 1995-NMCA-083, ¶ 13, 120 N.M. 361, 901 P.2d 779 (noting that the defendant placed his intent at issue by claiming that he acted in self-defense). Thus, evidence of Defendant‘s prior arrests for violence against Victim was admissible to rebut his claim of accident and to establish that he intended to shoot Victim, either to prevent her from testifying against him, or due to anger at her plan to break up with him, or simply during the course оf one of their many arguments.
CONCLUSION
{32} For the reasons set forth above, we affirm the district court‘s judgment and sentence.
{33} IT IS SO ORDERED.
EMIL J. KIEHNE, Judge
WE CONCUR:
M. MONICA ZAMORA, Judge
J. MILES HANISEE, Judge