STATE OF NEW MEXICO, Plaintiff-Appellee, v. DALLAS HNULIK, Defendant-Appellant.
No. A-1-CA-35323
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
February 21, 2018
Lisa B. Riley, District Judge
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
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
{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 violence incident in Artesia involving the couple in which the officer who arrested Defendant heard him shout “I‘m not going to jail over this shit,” and saw him standing over Victim in an aggressive manner.
{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
{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
{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 stаtements fall within the state-of-mind hearsay exception; 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] viсtim‘s fear of placing self in way of such harm).” Id. ¶ 21. Such evidence 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
{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 intеnded to return home to 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
{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. According to Defendant, Victim‘s plans shed no light on his intent, but statements about her plans were improperly offered to show his motive.
{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
{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, аnd later nodded her head 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
{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 shе wrote them. But even those 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
{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 commit violence on the part of the partner or spouse. For example, in State v. Calleia, 20 A.3d 402, 419 (N.J. 2011), the New Jersey Supreme Court held that a wife‘s statements of intent to divorce her husband were admissible, along with other evidence of their deteriorating relationship, to show that her husband had a motive to kill her. The court acknowledged general statements in previous case law that evidence of a victim‘s state of mind should not be used to prove a defendant‘s motivation or conduct, but clarified that the correct rule is that a “deceased victim‘s then-existing state of mind cannot directly prоve a defendant‘s motive; the state-of-mind exception to the hearsay rule does not permit imputation of a defendant‘s state
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 the 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, however, the State does not defend the district court‘s ruling that this statement wаs 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,
{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 address the effect the errors he alleges had on the verdict. Imрroperly 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
{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 was working at a car wash in Artesia while Defendant was there, and that they saw a friend of Victim drive by. Defendant gestured rudely at Victim‘s friend, and explained to the witness that he and Victim were arguing at the time of the shooting, that Victim was yelling at him so he grabbed a gun, and that Victim had spat in Defendant‘s face. At that point, Defendant told the witness that he shot Victim. Defendant later asked the witness not to say anything. In light of all the evidence presented at trial, we find that the isolated hearsay statement that Victim and Defendant had been arguing was harmless error.
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
{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 of one of their many arguments.
{31} We also hold that Defendant was nоt unfairly prejudiced by the introduction
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