Lead Opinion
OPINION
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 imroperly admitted into evidence; (2) whether the admission of Defendant’s girlfriend’s testimony violated the New Mexico Rule of Evidence forbidding admission of specific pri- or 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,
Detective Lynn Izatt of the San Juan County Sheriffs 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 sheriffs department and the FBI.
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 sheriffs 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.
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, 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.
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,
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,
In Coolidge v. New Hampshire,
First, the police officer must lawfully make an “initial intrusion” or otherwise properly be in a position from which he can view a particular area. Second, the officer must discover incriminating evidence “inadvertently,” which is to say, he may not “know in advance the location of [certain] evidence and intend to seize it,” relying on the plain-view doctrine only as a pretext. Finally, it must be “immediately apparent” to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure.
Texas v. Brown,
Here, the first requirement of the doctrine — that the initial intrusion be lawful or that the officer properly be in a position from which he can view a particular area — is clearly satisfied. Detective Izatt was at the sheriffs office, a place where he was lawfully allowed to be. Defendant came to the sheriffs office voluntarily and voluntarily wore the tennis shoes. He was neither asked nor required to wear the shoes to the polygraph examination. Detective Izatt noticed that Defendant was wearing the tennis shoes he suspected made the tracks at the crime scene. “[T]here is no reason [why Detective Izatt] should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy.” Brown,
The second requirement of the Coolidge doctrine — that the officer must discover the evidence “inadvertently” — was recently discarded by the Supreme Court in Horton v. California,
It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view, its incriminating character must also be “immediately apparent.” ... Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself____ In all events, we are satisfied that the absence of inadvertence was not essential to the Court’s rejection of the State’s “plain-view” argument in Coolidge.
Id. at 136-37,
The record also supports the court’s findings on the third requirement of the Coolidge test, that the object’s incriminating character be “immediately apparent” to the police. This essentially requires that there be probable cause. In Brown, the Supreme Court noted that its opinion in Colorado v. Bannister,
“[PJrobable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief that certain items may be ... useful as evidence of a crime.” Brown,
Ill
Next, we address whether Carmalita Long’s testimony regarding Defendant’s enjoyment of anal sex violates Rule 404(B).
Rule 11-404(B) provides that evidence of a person’s prior acts is generally not admissible to prove a person’s character in order to show that he acted in conformity with that character.
However, such evidence may be admitted for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absencé of mistake or accident. This list of purposes is not exclusive.
State v. Landers,
The purpose of Rule 404(B) is to exclude the admission of character traits to prove that a defendant acted in accordance with those traits. State v. Lucero,
Defendant argues that the evidence that he enjoyed anal sex was inadmissible under Rule 404(B). Defendant claims that the evidence was offered to show that because he enjoyed this type of sex, he was more likely to have been the person that forcibly sodomized Todacheenie. Defendant also argues that even if the evidence was admissible, its probative value was outweighed by its prejudicial effect under Rule 403.
Although jurisdictions vary in their treatment of prior sexual behavior, very few eases deal with the admission of testimony relating to legal sexual activity between consenting adults. Most of the cases discussing prior sexual conduct relate to prior convictions for sex crimes and/or prior uncharged illegal sexual conduct with the same victim. These cases hold that any evidence of a defendant’s sexual desires or practices may be relevant to prove a “licentious” or “lewd” disposition. See Landers,
Here, however, we are faced with the testimony of Defendant’s girlfriend regarding legal consensual sexual conduct between consenting adults. We have found three cases in which evidence of prior legal consensual sexual conduct has been admitted into evidence. In State v. Bruyette,
The second case, State v. Scott,
The third case, State v. Lucero,
Because we conclude that the evidence is irrelevant and does not fit into any of the exceptions of Rule 404(B), we need not engage in balancing the probative value of the evidence against its prejudicial effect. However, although we hold that the evidence was inadmissible under Rule 404(B), we hold that the error was harmless and reversal is not required. See State v. Wright,
(1) substantial evidence to support the conviction without reference to the improperly admitted evidence, (2) such a disproportionate volume of permissible evidence that, in comparison, the amount of improper evidence will appear so miniscule that it could not have contributed to the conviction, and (3) no substantial conflicting evidence to discredit the State’s testimony.
State v. Moore,
IV
Finally, we address whether the testimony by Sarah Woody, which consisted of hearsay statements made by Todacheenie, was improperly admitted. Before trial the State asked the court to allow, under SCRA 1986, 11-803(X) (Rule 803(X)),
The trial court’s ruling concerning the trustworthiness of an out-of-court statement will be upheld unless there has been an abuse of discretion. See State v. Johnson,
Woody testified that the next time the topic of anal sex came up was following a movie she and Todacheenie had seen. The movie had a scene in which the two main characters discuss various sexual positions. While Woody and Todacheenie were driving home from the movie theater, the two talked about anal sex and Todacheenie told Woody she felt it was “inappropriate.”
The “catch-all” exception to the hearsay rule can be found in both Rule 803(X) and Rule 804(B)(6). The exception states that hearsay will not be excluded at trial if it is a statement not specifically covered by any of the exceptions in Rule 803 or Rule 804 but has the equivalent circumstantial guarantees of trustworthiness, and if the court determines that
(1) the statement is offered as evidence of a material fact;
(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3)the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
SCRA 11-803(X) and 11-804(B)(6). “The ‘catch-all exception’ to the hearsay rule must be applied stringently in criminal cases because of confrontation concerns.” State v. Pacheco,
Here, the statements are admissible under the “catch-all” exception to the hearsay rule because: (1) they are offered as evidence of a material fact — that Todacheenie did not and would not have consented to anal intercourse; (2) the statements were more probative on the point of proving that Todacheenie did not consent to anal intercourse than any other evidence — Todacheenie is dead and could not tell the court whether or not she consented to the anal sex; and (3) the general purposes of these rules and the interests of justice will best be served by admission of Todacheenie’s statements into evidence — the circumstances surrounding these statements indicate trustworthiness equivalent to evidence admitted under the established hearsay exceptions.
In State v. Taylor,
(1) Ambiguity — the danger that the meaning intended by the declarant will be misinterpreted by the witness and hence the jury; (2) Lack of candor — the danger the declarant will consciously lie; (3) Faulty memory — the danger that the declarant simply forgets key material; and (4) Misperception — the danger that the declarant misjudged, misinterpreted, or misunderstood what he saw.
Id. at 197,
Defendant, however, contends that Todacheenie’s statement did not have sufficient circumstantial guarantees of trustworthiness to support its admission. Defendant suggests that because Woody and Todacheenie were close friends, Woody had sufficient motivation to lie to protect her friend, making the statement unreliable. We do not agree.
In determining whether a statement is sufficiently trustworthy the statement must be inherently reliable at the time it is made. Idaho v. Wright,
Here, the statements were made in the course of confidential discussions between close friends. Todacheenie had no reason to he about her feelings concerning anal intercourse, and based on the Taylor factors discussed above, none of the dangers exists that would make her statements unreliable. Although Defendant may feel that Woody was not a credible witness, this is a determination for the trier of fact and not this Court.
The specific exceptions to the hearsay rule are not justified by any circumstantial guarantee that the witness who reports the statement will do so accurately and truthfully. That witness can be cross-examined and his credibility thus tested in the same way as that of any other witness. It is the hearsay declarant, not the witness who reports the hearsay, who cannot be cross-examined.
Huff,
IT IS SO ORDERED.
Notes
. It initially appeared that the well site was situated on Indian land which would have placed the crime investigation under the FBI's jurisdiction.
. Detective Izatt testified that Williams' polygraph charts were subjected to a detailed numerical analysis. The results were placed on a scale where total scores of plus six or higher indicated truthfulness, minus six or lower indicated deception, and scores of less than six in either direction were inconclusive. Defendant scored minus twenty-seven.
. We note that the initial request by Detective Izatt to look at Defendant's tennis shoes during the interview at Defendant's home was a search within the meaning of the Fourth Amendment. This search, however, was clearly done with the consent of Defendant so that the subsequent search and seizure of Defendant’s tennis shoes did not violate Defendant's Fourth Amendment expectation of privacy. See State v. Cohen,
. The proper rule of evidence under which this testimony could have come in is SCRA 1986, 11-804(B)(6) (Rule 804(B)(6)) because Todacheenie, the declarant, was unavailable. Although the State offered the evidence under Rule 803(X), we will refer to Rule 804(B)(6) in our discussion. We note that it is irrelevant, in this case, under which exception the testimony was admitted because both 803(X) and 804(B)(6) are worded exactly the same and 803(X) merely permits the evidence whether or not the declarant is available.
Concurrence Opinion
specially concurring.
I concur in the result and in most, but not all, of the rationale in the plurality opinion. The specific focus of this special concurrence relates to the “character” evidence discussed in Part III of the plurality’s opinion.
First, I strongly agree that if Carmalita Long’s testimony that Defendant enjoyed anal sex was character evidence, then its admission was erroneous. For this reason, I also agree with the characterization in State v. Lucero (cited in the plurality opinion) of evidence of a “lewd and lascivious disposition” as “nothing more than a euphemism” for character evidence. See Lucero,
Indeed, I would go further than does the plurality and specifically disapprove the Court of Appeals’ subsequent holding in State v. Landers (cited in the plurality opinion) that evidence of a defendant’s “lewd and lascivious disposition” is admissible when offered to show the defendant’s behavior toward the victim of a sex crime for which the defendant is being prosecuted. As things stand now in New Mexico, evidence of a defendant’s lewd and lascivious disposition is admissible if directed toward a victim, Landers,
Notwithstanding my agreement with the plurality on its rejection of the so-called “lewd and lascivious disposition” exception to Rule 404’s prohibition of character evidence to prove that a person acted in conformity with that character on a particular occasion, I disagree with the plurality over four points. First, I do not think that admission of Ms. Long’s testimony about Defendant’s enjoyment of anal sex — once again, if that testimony constituted character evidence — can properly be treated as harmless error. Using the plurality’s definition of harmless error (taken from State v. Moore, cited in the opinion), I cannot see that this evidence was so miniscule that it could not have contributed to the conviction. Using another, more recent, definition of harmless error from this Court, I certainly think that there is at least a reasonable possibility that this evidence contributed to Defendant’s convictions. See Clark v. State,
As Wigmore says, “A defendant’s character, ... as indicating the probability of his doing or not doing the act charged, is essentially relevant.” IA John H. Wigmore, Evidence in Trials at Common Law § 55, at 1157 (Peter Tillers rev. ed. 1983). He elaborates on the same point in the context of character proved by specific “bad acts,” saying: “[Such evidence] is objectionable not because it has no appreciable probative value but because it has too much. The natural and inevitable tendency of the tribunal— whether judge or jury — is to give excessive weight to [such evidence]----” Id. § 58.2, at 1212. Because Ms. Long’s testimony tended to show that Defendant attempted to have anal sex with Ms. Todaeheenie and, when she resisted, raped and then killed her, I am unwilling to agree with the plurality’s implicit conclusion that there is no reasonable possibility that Long’s testimony might have contributed to Defendant’s convictions.
The second point on which I disagree with the plurality is . a relatively minor one — a quibble, perhaps, but one that I believe has some analytical significance. I disagree that Rule 404(B) has any relevance to this case. Rule 404(B) — sometimes called the “other” or “specific” or “prior” “bad acts” provision of the rule proscribing character evidence— is simply inapplicable to the testimony in this case. Ms. Long did not testify to any prior acts of Defendant, whether “bad,” “specific,” or “other.” She simply testified, presumably based on her personal observations or knowledge, that Defendant enjoyed anal sex. The question this testimony raises is: Was that evidence, in the words of Rule 404(A) (A, not B), “[ejvidence of [Defendant’s] character or a trait of his character” and therefore “not admissible for the purpose of proving that he acted in conformity therewith” on the occasion in question?
As one treatise on the law of evidence notes, with considerable understatement. “The Evidence Rules do not define ‘character.’ ” 22 Charles A Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure: Evidence § 5233, at 349 (1978). The treatise continues:
That may seem quite justifiable; doesn’t everyone know what the word means in this context? Perhaps. But suppose the prosecution in a criminal case offers evidence that the accused is a “professional gambler” or that the victim of an attempted rape was a “virgin.” Is this evidence barred by Rule 404(a) when offered as circumstantial evidence of conduct? Or take a civil case in which it is proposed to prove that the defendant was “clumsy” or “color-blind” or “accident prone” or a “wealthy playboy.” Are any or all of these evidence of “character”?
Id. at 349-50 (footnotes omitted).
The Wright & Graham treatise does not immediately answer these questions. Similarly, there is a notable dearth of definitions of “character” in other standard works on the law of evidence. One exception — such as it is — is contained in Professor McCormick’s treatise (which is also quoted in Judge Weinstein’s work): “Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness.” 1 John W. Strong, McCormick on Evidence § 195, at 825 (Practitioner Treatise 1992) (quoted in Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 404[01], at 404-12 (1990)). Obviously, this general definition, while perhaps helpful in suggesting the kinds of traits that are embraced within the popular — and perhaps the legal — meaning of the term, does not with any specificity establish what the term includes and what it does not.
The Wright & Graham treatise does give some help in identifying characteristics that should not be regarded as “traits of character” within the meaning of Rule 404. It states:
A person’s physical characteristics, e.g., color-blindness, clumsiness, or strength, should not be considered as part of his character for purposes of Rule 404. Such traits are capable of objective proof or disproof and present little danger of prejudice or,undue consumption of time. Some physical characteristics such as virginity or syphilitic infection, may imply something of the person’s morals but proof of the condition does not depend on a moral judgment. In such cases, admission or exclusion ought to be based directly on Rule 403 rather than attempting to read the elements of that rule into the definition of “character”.
Wright & Graham, supra, § 5233, at 355 (footnotes omitted). See also IA Wigmore, supra, § 83 (distinguishing physical capacity, skill, and other similar attributes from character).
A more difficult question of definition is presented by proof of mental characteristics. Insanity is not usually thought of as a question of “character” and Wigmore argues that other evidence of mental infirmity is admissible to prove conduct. While mental condition must be proved indirectly like character, weakness of mind does not usually have the prejudicial impact of a moral judgment.
Wright & Graham, supra, § 5233, at 355 (footnotes omitted) (citing IA Wigmore, supra, § 86).
My brief exposure to this problem convinces me that Wigmore is correct in observing that:
The prohibition against “character evidence” is one of the great enigmas of the law of evidence. The practical implications of the rule are complex and convoluted. The theoretical underpinnings of the rule are obscure. The historical origins of the rule are poorly understood.
IA Wigmore, sUpra, § 54.1, at 1150.
I am unable to do what all the text-writers and other legal authorities have failed to do. I am unable to outline the contours of the term “character” in Rule 404(A) and to explain why Defendant’s penchant for anal sex lies within, or falls without, those contours. Nevertheless, I have concluded that this characteristic — Defendant’s enjoyment of anal sex — even if described as a “disposition” or a “propensity,” is more like a physical or mental characteristic, testimony concerning which is not precluded by Rule 404, than it is like a generalized trait similar to honesty, temperance, or peacefulness. It is capable of objective proof or disproof, and in fact was proved at the trial below by the testimony of a witness with first-hand knowledge. The witness did not base her testimony on an opinion or on Defendant’s reputation — the only kinds of evidence that are ordinarily permitted, under Rule 405, to be used to establish a person’s character. I would hold (as my third point of disagreement with the plurality) that Ms. Long’s testimony was not evidence of Defendant’s character or a trait of his character, forbidden under Rule 404(A) when offered to prove that he acted in conformity therewith, but was instead evidence of a personal characteristic capable of objective proof and therefore not precluded by Rule 404(A).
For these reasons, I disagree with the plurality (as my fourth and final point of disagreement) that the trial court erred in admitting Ms. Long’s testimony about Defendant’s enjoyment of anal sex. It follows that, for the reasons set out above and those given in the plurality opinion (except Part III), I concur in affirming Defendant’s convictions.
. The anomaly of the Landers approach to “lewd and lascivious disposition” evidence — -which is character evidence — has been recognized, at least implicitly, in a number of cases that adhere to strict application of Rule 404(B) in all cases, including prosecutions for sex crimes. See Getz v. State,