State v. Williams
874 P.2d 12
N.M.
1994
Check Treatment

*1 874 P.2d 12 Mexico, New

STATE

Plaintiff-Appellee, WILLIAMS, Defendant-

Robert C.

Appellant.

No. 20394. Court of New Mexico.

Supreme

April

553 *2 propensity to acts to the accused’s show 11-404(B)

commit a crime. SCRA (Rule 404(B)); hearsay and whether testi- improperly mony by the cousin was victim’s exception to the under the catch-all admitted *3 (Rule 11-804(B)(6) rule, hearsay SCRA 804(B)(6)). Pursuant to Section SCRA 12-102(A)(2) (Repl.Pamp.1992), we review these issues and affirm.

I light following facts viewed in the sustaining con- most favorable to Defendant’s viction, permis- with all conflicts resolved and indulged inferences in favor of ver- sible dict, at trial. See State v. were adduced 126, 131, Sutphin, 107 8, 1989, May evening On victim, Todachee- Defendant and the Alverda nie, Lounge seen at the Turnaround were gentleman, ap- Hull. At with another John p.m. proximately all three left the bar 10:00 together Todaeheenie’s truck and went apartment Hull’s to drink Sometime beer. that, and left after Defendant Todacheenie Skyliner to meet Hull at the and were later However, Bar. Defendant and Todacheenie bar, up at the and instead drove did not show engage an well consensual oil site to there, Defendant sexual intercourse. Once his to have anal intercourse stated intention refused, he with Todacheenie. When she Sammy Quintana, Public J. Chief Defend- severely beating her forced her to submit Defender, er, Rogoff, Appellate Bruce Asst. scalp her point was board Fe, defendant-appellant. for Santa from her skull the bones in her removed and pulverized. Todacheenie nose were While Jacobsen, Udall, Gen., Atty. Tom Joel ground bleeding profusely, lying on the was Gen., Fe, plaintiff-ap- Atty. Asst. Santa engaged in anal intercourse with Defendant pellee. manually strangle attempted her and then got her. Todacheenie was still alive so OPINION approximately ran over her her truck and BACA, Justice. eight death was de- times. cause of head, chest and “crushing abdo- scribed Defendant, Williams, appeals Robert during injuries the course men sustained degree first murder and sec convictions for being by a motor At the overrun vehicle.” penetration. De degree ond criminal sexual scene, on the (1) were discovered areas of blood appeal: three issues on fendant raises blood and hair on ground, and a board with were im Defendant’s tennis shoes Whether The hair evidence; in the immediate area. was found roperly admitted into whether Tire was consistent with Todacheenie’s. girlfriend’s tes the admission of Defendant’s footprints tennis shoe tracks and Defendant’s timony New Rule of violated the Mexico forbidding specific pri- were also found the scene. Evidence admission Lynn Izatt the San Juan because appeared Detective seize them the soles County Department Sheriffs one of the was footprints have the same tracks as the found at the He noticed officers murder scene. at the crime scene. Defendant not un- footprints sandy ground on the near Toda- der when Detective arrest Izatt took body. They photographed by cheenie’s were shoes, Detective Izatt have a did not department FBI.1 the sheriffs and the On search warrant. 16, 1989, May Detective Izatt met inter- trial, girlfriend, At Defendant’s Carmalita apartment. viewed Defendant at Defendant’s pursuant Long, plea agreement testified to a special agent FBI Moffat was also Chuck May that on arrived defendant present at this interview. Detective Izatt 4:00 home at a.m. and had to let in Agent Moffat Defendant what asked key. he had because lost his had a He wearing evening he had clothes been on scratch his elbow and blood on the knee of *4 8th, when the homicide occurred. pants. his Defendant told her he had that response, Defendant them the shoes showed fight. pants, in been He then washed his wearing. been he had The shoes were white shirt, in the morn- and shoes sink and in the shoes recently tennis that had been washed. ing Long to took them the laundromat. tes- Izatt soles of Detective examined the the she tified that found sand in the and sink thought they shoes and the foot- matched strangely: that acting Defendant started prints found at the crime scene. Detective pacing hardly eating. Long testi- and also possession did Izatt not take the shoes at objection enjoyed fied over that Defendant time. that anal sex. interview, the end of the Detective At Izatt Additionally, cousin, Todacheenie’s and if willing asked Defendant he to would be friend, Woody, close Sarah testified over ob- examination, polygraph take a Defendant and jection thought that Todacheenie anal agreed to do so. When the Defendant came disgusting, place was not the God intended polygraph to the sheriffs office to take the sex, that anal and intercourse could cause examination, he wearing was the same white cancer. tennis shoes he had Detective shown to Izatt Agent previ- apartment and Moffat his the appeals Defendant the of both admission day. polygraph ous Defendant took the girlfriend’s testimony his regarding his en- exam, which he failed.2 Izatt then Detective joyment anal sex Woody’s and Ms. testi- him confronted Defendant and told lie be- mony regarding repulsion the to victim’s time, lying. lieved was At Defendant appeals sex. Defendant also the admission they him if going were do a asked to test “to of his tennis shoes into evidence unrea- as an any if there see come in her.” Detective and sonable search seizure. said that a might Izatt DNA test be conduct- said, fine, ed. Defendant then “That’s be- II you’re going not cause to find come First, address argument we Defendant’s asked, “Why Detective her.” Izatt are we denying the trial court erred in her?”, going anything to find not to which suppress motion to the tennis shoes. Defen- replied, any- Defendant I do “Because didn’t dant that his claims shoes were seized I thing. anything didn’t do her.” Based rights. violation of his Fourth Amendment score, polygraph on Defendant’s his incrimi- provides: The Fourth Amendment statements, nating and con- the interview Agent right people ducted Detective Izatt and Moffat be secure day, houses, effects, previous again persons, asked papers, Detective Izatt their and against to see Defendant’s shoes and then decided to unreasonable sei- searches and initially appeared plus higher 1. It that the site was situ- well where total scores of six or indicated placed truthfulness, ated on Indian land which would have decep- minus six or lower indicated investigation jurisdiction. crime under the FBI's tion, and scores less than six in di- either rection were inconclusive. mi- Defendant scored poly- 2. Detective Izatt testified that Williams' twenty-seven. nus graph subjected charts were to a detailed numer- analysis. placed ical The results on a were scale zures, violated, no Id. 612 P.2d at 232. This and War- able. shall be cause, issue, therefore examines the whole record upon probable rants shall but considered, may the full truth be affirmation, “so that par- supported Oath reliability probable and the existence describing place to be ticularly Id. cause.” searched, persons things seized. argues The State that the evidence Const, IV. U.S. amend. plain comes view within requirement. Fourth Amendment warrant in initially note that this case We plain in property “The seizure of view not a search.3 A search volves seizure and privacy presump volves no invasion of legiti an on a occurs when there is intrusion reasonable, tively assuming there is expectation v. An privacy. Illinois mate probable property cause associate 3319, 3324, dreas, 765, 771, 103 S.Ct. 463 U.S. York, activity.” Payton criminal v. New (1983). Merely inspecting 77 L.Ed.2d 1003 573, 587, 1371, 1380, U.S. S.Ct. object into view parts of an that come excep plain L.Ed.2d 639 view lawfully Ari does not constitute a search. under tion to the Fourth Amendment occurs 321, 325, Hicks, zona v. 480 U.S. S.Ct. First, types of circumstances. and most two (1987); 94 L.Ed.2d 347 see also commonly, exception permits seizure Brown, 4,n. Texas v. 460 U.S. in the course of an intru evidence discovered *5 (1983) 1535, 4,n. 1541 75 L.Ed.2d 502 S.Ct. justification, prior sion for which there was Here, (plurality opinion). Defendant chose warrant, pursuit, as a hot or a such a search the particular to the tennis shoes to wear Powell, incident to v. 99 search arrest. State polygraph. office to take the Detec sheriffs 381, 384, 456, (Ct.App.), N.M. 658 P.2d 459 wear tive Izatt noticed that Defendant was denied, 358, cert. 99 N.M. 658 P.2d 433 suspected he ing the shoes made the tennis (1983). Second, ap plain the view found the crime scene. The tennis tracks at search, in Amend plies when no the Fourth lawful shoes came into Detective Izatt’s view sense, has at all. Id. It ment occurred ly question no search occurred. The in in which an obser applies those instances whether the seizure of the tennis shoes which by prior a vation is made an officer without followed violated the Fourth Amendment. pro physical constitutionally into a intrusion reviewing the trial decision LaFave, In court’s (quoting 1 tected area. Id. W. by to 2.2, (1978)); defendant’s motion § on an issue raised 242 Search and at see Seizure may appellate 128, 135, court determine suppress, “the California, also Horton v. 496 U.S. (1990) probable by 2307, or an 2301, if cause did did not exist 112 110 S.Ct. 110 L.Ed.2d surrounding an (stating applies examination of all the record plain that the view doctrine searching v. Mar police or search and seizure.” State officer is not arrest where a 228, 231, tinez, 436, 439, accused, against 612 94 N.M. P.2d the but nonetheless evidence 371, denied, 959, incriminating 66 inadvertently 449 U.S. 101 S.Ct. comes across an cert. Calvillo, 114, 117, (1980). object); In v. 110 N.M. 226 all eases of warrant- L.Ed.2d denied, 1157, seizure, question (Ct.App.), 792 1160 cert. the ultimate P.2d less arrest (1990) 72, (holding 792 P.2d 49 110 N.M. search or seizure was reason- whether the shoes, by physical characteristics of the soles of request Detective the 3. We note that the initial physical during and therefore "[e]xamination to look at Defendant's tennis shoes Izatt of the soles of the shoes the a characteristics the interview at Defendant's home was search probing the into an meaning ‘involves none of of the Fourth Amendment. officers within the search, however, thoughts private clearly life and that marks with the individual's This done ” (quoting interrogation subsequent search.' Davis v. the an of Defendant so that consent 721, 727, 1394, Mississippi, S.Ct. 394 U.S. 89 of Defendant’s tennis shoes search and seizure 1397, (1969)). Because the 22 L.Ed.2d 676 Fourth Amendment did not violate Defendant's consensual, Cohen, a at Defendant's home was expectation privacy. v. 103 search of See State denied, 558, 3, (1985), police 563, inspection of shoes which the second 8 cert. 1158, 2276, lawfully rea viewed does not invade Defendant’s L.Ed.2d 719 476 106 S.Ct. 90 U.S. 332, (1986). expectations privacy. People Curry, See v. But 103 Idaho sonable see State 92, Richards, (holding 67 Ill.Dec. 445 (Ct.App.1982) 94 Ill.2d 794 no 647. respect expectation privacy N.E.2d reasonable employs private legiti- “When an senses him a There is officer his natural citizen. no be, Brown, expectation from he place right privacy.” where has a mate in there is no search the constitutional U.S. at S.Ct. at Blackwell, sense.”); 76 N.M. requirement of Coolidge The second (1966) (stating doctrine —that the officer must discover the merely looking open that which is view “inadvertently” recently evidence dis —was meaning of is not a search within the Supreme carded Court Horton v. Amendment). type Fourth This second 130, 110 California, 496 U.S. at S.Ct. at 2304. plain applies present in the case. view though “even The Court concluded that inad legitimate vertence is a of most characteristic Coolidge Hampshire, v. New seizures, ‘plain-view’ not a necessary it is 465-470, 2037-40, U.S. S.Ct. explained, Id. condition.” The Court (plurality opinion), L.Ed.2d 564 is, plurality expressed plain course, predicate view was It an essential permits view doctrine the warrantless seizure any valid warrantless seizure of incrimina- by police private possessions where three ting evidence that the officer did not vio- requirements require are satisfied. The arriving late the Fourth Amendment ments have been stated as follows: place from which could be are, moreover,

First, plainly police lawfully officer viewed. must make There two properly an “initial intrusion” otherwise additional conditions that must be satisfied position justify First, be in a from which he can view a the warrantless seizure. particular Second, only view, plain area. the officer must not must the item be incriminating incriminating discover “inadver- character must also “im- tently,” say, may Second, mediately apparent.” which is to not “know only ... lawfully advance the location of [certain] evi- must the officer be located it,” relying place dence and intend to seize from object plainly which the can be *6 plain-view pretext. seen, only the doctrine aas but he or she also must have a lawful itself____ Finally, apparent” “immediately object it must be of right access to the In events, police to the that they the items observe all we are satisfied that the ab- crime, contraband, may of be evidence a of sence inadvertence not essential was to subject rejection otherwise to “plain- seizure. the the Court’s of State’s argument Coolidge. view” Brown, 737, Texas v. 460 U.S. at 103 S.Ct. at (alteration (citations (citations 136-37, original) 1540-41 Id. at 110 at 2308 S.Ct. Crenshaw, omitted). omitted); Although may see also State v. 105 ques there be some 329, 333, 431, (Ct.App. N.M. 732 P.2d 434 tion to whether as Detective Izatt “inadver 1986) Coolidge (applying invoking criteria tently” for discovered the tennis shoes because doctrine). plain day, view seen previous he had them the we need prong Coolidge not decide this test as Here, requirement the first the of doc- longer requirement it is no a for the seizure trine —that the initial lawful intrusion be 130, 110 objects plain of view. Id. at S.Ct. properly position that the officer be in a from at 2304. particular which he can a view area —is clear- ly satisfied. Detective Izatt the supports was at sher- The record also the court’s find office, place lawfully ings iffs a where he the requirement Coolidge on third test, object’s allowed to be. Defendant the sher- the incriminating came to that character voluntarily voluntarily iffs office “immediately apparent” wore police. be the He essentially requires tennis shoes. was neither asked nor proba This that there be required Brown, to polygraph Supreme wear shoes to the ble cause. opinion examination. Detective Izatt noticed that noted that its v. Colorado Bannis wearing ter, 1, 3-4, 42, 43-44, Defendant was the tennis shoes he 449 U.S. 101 S.Ct. 66 suspected (1980), made the tracks 1 the crime “did view the L.Ed.2d ‘immedi [why ately scene. is no reason Detective apparent’ language establishing “[T]here ... as precluded observing any requirement police Izatt] should be from as that a officer ‘know' entirely an officer what would be visible to that certain items are contraband evidence

557 conformity 741, with that he acted 103 S.Ct. at show a crime.” 460 U.S. at Rather, that character. “‘[t]he Court held that plain no property in view involves seizure of However, may evidence admitted such be privacy presumptively and is rea invasion of motive, opportu- purpose proving for the sonable, assuming probable is that there intent, preparation, plan, knowledge, nity, property criminal associate the cause to identity, or of mistake or accident. absencé ” 741-42, activity.’ Id. at 103 S.Ct. 1543 purposes not exclusive. This list is 587, 100 (quoting Payton, 445 U.S. at S.Ct. at Landers, 514, 517, 115 853 P.2d State N.M. v. omitted). 1380) (emphasis (citation omitted), 1270, (Ct.App.) 1273 cert. (1993). 535, flexible, quashed, 115 P.2d 362 N.M. 854 a com cause is “[PJrobable prior If acts relevant merely evidence requires standard. It that mon-sense purpose proving for a other than “war admissible available to the officer would facts crime, commit a propensity a defendant’s a caution in the be rant man reasonable of the evidence must probative value may ... useful lief that certain items be 1986, Brown, outweigh prejudicial effect. SCRA of a crime.” 460 U.S. at Beachum, (Rule 403); (citation omitted). 96 742, 11-403 S.Ct. at 1543 567-68, N.M. P.2d require an offi Probable cause does not that appeal, the trial court’s (Ct.App.1981). On likely cer’s belief be correct or more true 404(B) Rather, under Rule decision to admit evidence only Id. than false. there need a is reviewed for abuse discretion. probability incriminating evidence is in Altgilbers, 109 N.M. Id. considerations in volved. With these denied, N.M. mind, (Ct.App.1989), cert. pos Izatt clear Detective (1990). probable cause believe that sessed into sher tennis shoes Defendant wore 404(B) is purpose of Rule iffs office were evidence of Todaeheenie’s traits to exclude the admission of character the motion hearing murder. At the in accordance prove that defendant acted that, Izatt suppress, Detective testified based Lucero, 114 with those traits. State v. N.M. results, the polygraph on the test statements (Ct.App.), cert. following polygraph Defendant made denied, 114 P.2d 623 test, the fact that Defendant admitted to excluding basis night being of her mur with Todacheenie the only propensity to commit vari shows shoe, der, right for his he asked Defendant *7 proba ous crimes is that such evidence is “appeared to be the same shoe [he] which acted tive the fact that the defendant of also, in day [his] before and had seen the consistently past in commit with his conduct type opinion, appeared to be the same of “Testimony ting which the acts at issue. scene on the track was at the crime of a defendant’s bad amounts These estab night [murder].” facts of disposition to commit the crime probable lished cause believe sufficient clearly charged is inadmissible.” Id. partic of Defendant’s shoes were evidence argues that the evidence Defendant murder, all ipation in Todacheenie’s enjoyed anal was inadmissible that he sex evi together substantial the facts constitute 404(B). claims that under Rule Defendant support the court’s decision dence to that be was offered show Martinez, 94 was reasonable. See seizure sex, he enjoyed type cause 439, 231. 612 P.2d at N.M. at person likely to have been more Defendant forcibly Todacheenie. Ill sodomized argues that even if the evidence was also Next, address whether Carmali we admissible, probative value was out its testimony Long’s regarding Defendant’s ta weighed by prejudicial under Rule effect 404(B). enjoyment of anal sex violates Rule 11-404(B) provides that evidence Rule jurisdictions vary in Although their treat- person’s prior generally acts is not admis- behavior, very few eases prior in sexual prove person’s character order ment sible to 558 testimony relating being as relevant to the issue of

deal the admission of admissible with activity consenting However, legal identity. between sexual character evidence is ad- 404(B) discussing prior cases adults. Most of the mitted under Rule as evidence prior for sexual conduct relate to convictions identity only when the strict test for rele- prior uncharged illegal sex crimes requires and/or test that “[t]he vance is met. This conduct with the same victim. These sexual prior ‘pattern and characteristics’ of the acts a defendant’s cases hold that evidence of distinctive, effect, to constitute must be so practices may sexual desires or be relevant signature.” 604 A.2d at the defendant’s Id. disposition. prove a “licentious” “lewd” (holding 1273 that evidence of defendant’s Landers, 517-20, N.M. at 858 P.2d at See prior girl- consensual sexual conduct with his uncharged (holding evidence of sexu 1273-76 friend, strikingly similar to con- which was battery al admissible to corroborate victim’s victim, perpetrated on was relevant and duct Beck, 130, testimony); Ariz. State v. Here, identity). enjoying admissible to show (Ariz. 227, denied, (Ct.App.), 230-31 rev. clearly distinctive so as to is not so 7, 1986) (holding prior incest Oct. acts of “signature.” constitute a admissible); State, daughter same McKim v. case, Scott, The second State v. 11 Conn. (Ind.1985) 503, (holding girl 476 N.E.2d 102, 1364, (1987), App. 525 A.2d testimony physically friend’s that defendant certifi- denied, cation 204 Conn. 528 A.2d 1157 abused her and forced her to have sexual (1987), involved the admission of the defen- intercourse was admissible to show “de engaged dant’s statement that he had prosecution own praved sexual instinct” incest, rape, teenage place sex in the where and molestation of a consensual same State, daughter); night v. 480 N.E.2d Brackens the crime occurred the before. This (Ind.1985) (holding uncharged prior inapplicable present case is also case seven-year molestation of old niece admissi because it involved an admission the de- instinct”); “depraved ble to show sexual testimony given by rather than fendant (Me. DeLong, State v. 505 A.2d someone close to the defendant. 1986) admissibility (citing tradition of of evi prior subsequent dence of sexual relations case, Lucero, The third victim, between the defendant and the (Ct.App.), 840 P.2d 1255 cert. de uncharged holding proof of incidents of incest nied, (1992), 114 N.M. 839 P.2d 623 is a relationship “to show the admissible between Ap Mexico case in New which parties light that in turn shed on defen peals testimony held that the of defendant’s motive, intent, opportunity”); dant’s girlfriend, enjoyed that defendant oral sex Schut, Wash.2d him, and sometimes she denied was irrele (1967) (holding prior acts of incest with testimony vant and hence inadmissible. The victim admissible to show lustful inclination very in Lucero is similar to that in this case. victim); generally towards see cases cited The witness each case was involved in Strong, 1 John W. McCormick on Evidence consensual sexual relations with the Defen (4th 1992) (Practitioner § at 803 ed. *8 dant to and both testified Defendant’s sexual Series); Wigmore, Treatise 1A John H. Evi preferences. rejected Lucero the “lewd” and (Peter 1983); § 62.2 dence Tillers rev. ed. disposition” exception 11- “lascivious to Rule State, 972, (Wyo. n. 4 Gezzi v. 404(B) in situations in which the state desires 1989). concerning to introduce evidence a defen prior dant’s sexual conduct with someone

Here, however, we are faced with other than the victim named the indict testimony girlfriend of Defendant’s re eases, disposition’ ment. In such “the ‘lewd garding legal consensual sexual conduct be exception nothing euphemism more than a consenting tween adults. We have found for the character evidence which Federal prior legal three cases in which evidence of 404(b) Rule of Evidence and its state coun consensual sexual conduct has been admitted terparts designed Bruyette, into evidence. In are to exclude.” Id. at Vt. (1992), 492-93, agree 604 A.2d the testi 840 P.2d at 1258-59. We with mony girlfriend Appeals although of the defendant’s was held the Court of that “New Moore, 503, 504, 612 P.2d recognize to continued courts have Mexico ease, involving this there was conduct proof sexual admitted, that Defendant caused have not abundant evidence may [we] same victim personal injury by forcibly en proof of exception to allow Todacheenie extended this , it with her. This gaging sexual conduct unless meets in anal intercourse prior other con support within the his conviction under the criteria for an was sufficient to 404(B).” (Cum. 30-9-11(B)(2) recognized under Id. at cepts rule NMSA Section (citations omitted). In Supp.1989). P.2d at 1259 on the He left Todacheenie case, not relevant to the the evidence is night murder her truck and his identity it is not so dis defendant’s because footprints the crime scene. were found at “unique or distinct as to constitute a girlfriend tinctive home at His that he came testified easily person.” pattern attributable one day after the murder and that 4:00 a.m. the Beachum, at 1206. 96 N.M. a scratch on his elbow and blood had Defen also not relevant to evidence is pants. that Defendant She also testified merely enjoying anal dant’s motive because sink immediately his clothes in the washed suggest that Defen sex is not sufficient took them to the laundromat. She then cause force himself on Todachee dant had to the testified that after Defendant went clearly evidence nie. This was laundromat, in the Ad found sand sink. she motive, proof relevant to show was not highly incrimina ditionally, Defendant made intent, preparation, plan, knowl opportunity, Izatt mat ting Detective about statements to edge, identity, or acci or absence of mistake only familiar with the ters of which someone 404(B). dent. Rule The evidence was See (“... you’re going ease know not would relevant, all, only her____because if at to show Defendant’s any find come in I didn’t do engage in sex. It should propensity to anything”). provide facts These substantial not have been admitted. implicating the one evidence Defendant as raped who and murdered Todacheenie. the evi we conclude that Because Also, conflicting evidence was no substantial not into and does fit dence is irrelevant by suggest otherwise. proffered Defendant to 404(B), exceptions Rule we need not be- improperly put additional balancing engage probative value jury Defendant liked anal fore the against prejudicial effect. the evidence significant- clearly could not have contributed However, although we that the evidence hold ly to and was harmless. the conviction 404(B), under Rule we hold was inadmissible and reversal is error harmless was IV Wright, 84 N.M. required. See State v. (Ct.App.1972). For testimony Finally, we address whether harmless, there must error to be considered hearsay Woody, which consisted of Sarah be: Todacheenie, im- was statements made (1) properly Before trial the State support admitted. evidence to substantial allow, improp- court to under SCRA asked the without reference conviction (Rule 11-803(X) 803(X)),4 (2) Woody’s tes- evidence, dispro- Sarah erly such a admitted had dis- timony that she and Todacheenie portionate permissible volume that Todacheenie stated that, improp- anal sex and amount of cussed comparison, that it was not the disgusting, she appear miniscule that it found er evidence so will sex, it could place intended for and that convic- God not have contributed could proof After an offer of tion, conflicting evi- cause cancer. no substantial *9 testimony. made, the testimony. the court allowed dence to discredit the State’s case, irrelevant, this under We note it is proper of evidence under which this 4. The rule exception testimony be- was admitted 11- which the testimony in is SCRA could have come 803(X) 804(B)(6) Todacheenie, 804(B)(6) (Rule 804(B)(6)) and are worded both cause because 803(X) merely declarant, permits the Although exactly the same and the the was unavailable. 803(X), declarant is avail- whether or the Rule we the evidence under State offered 804(B)(6) in discussion. able. to Rule our will refer (3)the purposes of these rules and ruling concerning general The trial court’s justice served the interests of will best be of an out-of-court state the trustworthiness evi- of the statement into admission upheld there has been an ment be unless will Johnson, dence. of discretion. See State abuse (1983). 11-804(B)(6). 662 P.2d 11-803(X) “The and SCRA case, testimony Woody’s trial Ms. hearsay must exception’ to the rule ‘catch-all and Todacheenie were established she cases be applied stringently be criminal grew up next door to each other cousins who cause of confrontation concerns.” Woody Todacheenie Pacheco, 599, 601-02, and that Ms. considered 110 N.M. 798 P.2d Woody relationship denied, described the sister. (Ct.App.), 110 N.M. cert. being and Todacheenie as hearsay between herself Because is not “very that she and To close.” She testified subject safeguard of cross-exam to the usual they trial, sexual matters that dacheenie discussed have circumstantial ination must anyone As for the equivalent did not discuss with else. guarantees of trustworthiness sex, Woody topic anal testified that she the evidence admitted under established exceptions. it for the first hearsay and Todacheenie discussed Id. at Woody following procedure a medical time February relating to colon underwent in Here, the statements are admissible Woody Todacheenie testified that cancer. exception to the hear under the “catch-all” Woody you could stated to that she believed (1) say they rule because: are offered as having way,” the anal get cancer from “sex material fact —that Todachee evidence of a not intend humans to have and that God did nie did not and would not have consented anally. prosecutor After asked (2) intercourse; the statements were

Woody if Todacheenie indicated whether she probative point proving more not, way Woody an enjoyed sex that Todacheenie did not consent to anal inter Todacheenie said “that’s sick swered that any course than other evidence—Todachee cancer, you get and that’s how can too.” not tell the court nie is dead and could sex; not she to the anal whether or consented Woody testified that the next time (3) general purposes of these rules following topic up came of anal sex justice will and the interests best seen. The she and Todacheenie had movie served admission of Todacheenie’s state had a scene in which the two main movie into evidence—the circumstances sur ments positions. discuss various sexual characters rounding these statements indicate trustwor driving Woody and Todacheenie were While equivalent to admitted un thiness theater, home from the movie the two talked hearsay exceptions. der the established Woody told about anal sex and Todacheenie “inappropriate.” she felt it was Taylor, In State v. 103 N.M. (Ct.App.1985), Appeals exception to the The “catch-all” dangers primary identified the four of hear Rule hearsay rule can be found both hearsay say possibly which can make a state 803(X) 804(B)(6). and Rule dangers ment unreliable. These must be hearsay not be excluded at states that will hearsay exception ap addressed before a specifically trial if it is a statement not cov They plicable. are: by any exceptions in Rule ered (1) Ambiguity danger that the mean- —the equivalent circumstan Rule 804 but has ing by the mis- intended declarant will be trustworthiness, if guarantees tial interpreted by the hence the witness and court determines that (2) jury; danger Lack of candor —the (1) is offered as evidence of the statement (3) lie; consciously Faulty declarant will fact; a material memory danger that the declarant —the (4) material; key probative simply forgets and Mis- the statement is more on the perception danger that the declarant point for which it is offered than other —the procure misjudged, misinterpreted, or misunder- proponent evidence which the can efforts; through stood what he saw. reasonable

561 case, hearsay specific exceptions to rule In the The the 704 P.2d at 451. this Id. at justified by any not circumstantial dangers hearsay of testimo- are and fourth third reports the Taylor guarantee irrele- that the witness who ny court are pointed out the accurately and truth- she statement will do so Todacheenie’s statements that vant as thought fully. cause That can be cross-examined could witness disliked anal and faulty credibility thus in the same possibly not be due to a and tested cancer could As first other It is the memory misperception. way for the as that of witness. declarant, ambiguity hearsay of not the who dangers, and lack witness second and candor, hearsay, cannot cross- clearly danger reports no the who be there was misinter- statements would be examined. Todacheenie’s danger preted Woody no that Toda- The court did Huff, 609 F.2d at 293. trial consciously lied. cheenie and the not abuse its discretion evidence judgment the tri- properly admitted. The of however, Defendant, Toda- contends that is AFFIRMED. al court not have sufficient statement did cheenie’s guarantees of trustworthiness circumstantial IT ORDERED. IS SO sug- support its admission. Defendant Woody gests and Todacheenie that because SERNA, Judge, PATRICIO M. District friends, Woody had sufficient mo- were close concurs. friend, making her protect to lie tivation MONTGOMERY, C.J., specially concurs. agree. unreliable. We do not the statement Justice, MONTGOMERY, specially Chief determining whether a statement concurring. sufficiently trustworthy the is statement most, not I result and but concur the at it is inherently must reliable the time all, plurality opinion. the rationale in the Wright, v. 497 110 Idaho U.S. made. special specific of this concurrence focus 3139, 111 638 The test L.Ed.2d S.Ct. the evidence discussed relates to “character” is whether the out- the catch-all rules under plurality’s opinion. III of Part the the testi statement —not witness’s of-court guarantees mony circumstantial First, strongly agree I Carmalita —has if credibility wit trustworthiness. enjoyed testimony that Defendant Long’s cross-examination, ness, subject is who evidence, then anal sex was character analysis. the irrelevant trustworthiness reason, I For admission was erroneous. this 975, 983 Treff, v. 924 F.2d United States agree with characterization State also (10th denied, Cir.), cert. U.S. (cited plurality opinion) Lucero in the v. (1991); v. L.Ed.2d S.Ct. disposi- of a and lascivious “lewd Huff (7th F.2d Corp., 609 White Motor euphemism” “nothing more than a tion” as Cir.1979). admissibility ruling upon “In Lucero, 114 See for character evidence. not the trial court does the statement 492-93, at 1258-59. N.M. at questions de determine ultimate Indeed, go I further than does would instead, prov credibility; is the clarant’s disapprove plurality specifically Sanchez, 112 jury.” N.M. ince of the State holding in Appeals’ subsequent (Ct.App.1991). (cited opin- in the plurality v. Landers ion) of a defendant’s “lewd Here, in the that evidence were made statements of- disposition” when is admissible between lascivious of confidential discussions course to- behavior to show the defendant’s had reason to fered friends. Todacheenie no close crime for which the victim of a sex concerning anal inter- ward feelings her about things being prosecuted. As Taylor course, factors dis- defendant and based on the Mexico, aof above, dangers now New exists stand cussed none of disposition is lascivious Al- lewd and her unreliable. defendant’s would make statements victim, Lan- if toward a Woody was directed may feel that admissible though Defendant ders, but witness, this is determination not a credible toward is directed disposition if the and not this Court. for the trier fact *11 562 else, Lucero, 493, N.M. stated his intention to have 114 at 840 “Defendant

someone and that she that this intercourse with Todaeheenie” P.2d at 1259. I believe distinction plurality know these again, refused. How does that evi indefensible and if— if—the that indulging facts? Answer: inferences truly evidence Rule dence is character under undoubtedly jury drawn 404, were it should excluded accordance with —infer- (unless testimony that Long’s ences based on Ms. for purpose rule is offered some it enjoyed anal the testi- Defendant sex and on than to that the defendant acted other show (Todacheenie’s friend) mony Woody of Sarah conformity her on a with his or character that didn’t. occasion).1 Todaeheenie particular says, “A charac- Wigmore As defendant’s my agreement Notwithstanding with the ter, indicating of his probability ... as rejection plurality the so-called doing doing charged, is essen- or not act disposition” exception to “lewd and lascivious tially Wigmore, IA John H. Evi- relevant.” prohibition Rule 404’s of character evidence 55, § at at dence in Trials Common Law prove person conformity that acted in to 1983). (Peter 1157 Tillers rev. He elabo- ed. occasion, particular that on a with character point rates on the same in the context disagree points. over plurality I with the four acts,” proved by specific say- character “bad First, I do not think that admission of Ms. ing: objectionable not evidence] is “[Such enjoy- Long’s testimony Defendant’s about appreciable probative because it has no value again, ment of anal that testimo- sex—once if but it has too much. The natural because ny prop- constituted character evidence—can tendency tribunal— inevitable erly Using error. be treated as harmless jury judge give to excessive whether —is (taken plurality’s definition of harmless error 58.2, § weight at evidence]----” to Id. [such Moore, opinion), v. cited in the I from State Long’s testimony tended Because Ms. see so minis- cannot that this attempted to that Defendant to have show cule that could not have contributed to the and, anal sex with Ms. Todaeheenie when she another, recent, Using more conviction. def- her, resisted, raped I am and then killed Court, inition of error from I harmless unwilling agree plurality’s implicit to with the certainly think that there is least a reason- possi- conclusion that there is no reasonable possibility able that this evidence contributed bility Long’s testimony might have con- to Defendant’s convictions. See v. Clark tributed to Defendant’s convictions. State, 487, 1107, 485, 112 816 1109 (error (1991) point disagree The I in admission second on which plurality prejudicial relatively criminal trial and not harmless is .a minor one—a quibble, possibility perhaps, if there is that evi- but one that I believe has reasonable conviction). might analytical significance. disagree dence have contributed some I 404(B) plurality’s Rule The own recitation of the facts has relevance to this case. 404(B) Long’s testimony Rule might shows Ms. have called the “other” —sometimes contributed, contribute, “specific” “prior” probably provision did “bad acts” plurality says, proscribing Defendant’s convictions. rule character evidence— anomaly approach (rejecting 1. The of the Landers to “lewd admission of evidence of un disposition” and lascivious evidence —-which is charged purpose is sexual misconduct where sole recognized, been evidence —has crime); propensity accused's show to commit implicitly, least in a number of cases that adhere 411, Shively, Commonwealth v. 492 Pa. 424 A.2d 404(B) cases, application to strict of Rule in all (1981) (overruling prior 1259-60 caselaw including prosecutions for sex See crimes. Getz 404(B) allowing different treatment under Rule State, (Del.1988) (re jecti v. 538 A.2d crimes); for v. sexual and non-sexual State evidence); ng propensity blanket for (Tenn.1984) (de Burchfield, 664 S.W.2d Commonwealth, Pendleton v. 685 S.W.2d 404(B) clining expand exceptions to Rule (Ky.1985) (overruling prior permit caselaw exception). include sex crimes See also v. Gezzi ting prove evidence to incli admission of lustful State, (Wyo.1989) (dissenting Courier, accused); nation 193 S.W.2d Kaloyanides, opinion); Depraved David J. (holding (Mo.Ct.App.1990) evidence of Theory: Example An the Pro Sexual Instinct prior only specific admissible crimes under 404(B)); pensity Application Aberrant Federal Rule exception categories in Rule 404(b), Curry, Loy.L.A.L.Rev. 43 Ohio St.2d 330 N.E.2d Evidence *12 embraced within traits that are testimony in this the kinds of simply inapplicable legal perhaps the testify any prior popular Long not did case. Ms. —mean- —and term, any specificity “bad,” Defendant, “specific,” ing of the does not with whether acts of testified, and what it presumably the term includes simply establish what “other.” She or knowl- personal observations or not. on her does based The enjoyed anal sex. edge, Defendant give does Wright treatise The & Graham testimony question raises is: Was this identifying in characteristics help some 404(A) (A, evidence, not in the words of Rule “traits of charac- regarded not be as should “[ejvidence B), or [Defendant’s] meaning Rule 404. It ter” within and therefore “not a trait of his character” states: purpose proving that he for the admissible characteristics, e.g., person’s physical A conformity on the occa- in therewith” acted color-blindness, clumsiness, strength, or question? in sion part of his considered as should not be on the of evidence As one treatise law purposes of Rule 404. Such character for notes, with considerable understatement. objective proof capable of or traits are not define ‘charac- “The Evidence Rules do danger preju- present little disproof and ” Wright A & Kenneth W. ter.’ Charles or,undue consumption time. Some dice Graham, Jr., Federal Practice & Procedure: virginity as or physical characteristics such § at 349 The treatise

Evidence infection, may imply something syphilitic continues: proof person’s morals but of the justifiable; may quite doesn’t That seem judg- depend a moral on condition does everyone what the word means know cases, or exclu- ment. In such admission suppose Perhaps. But this context? directly on Rule 403 ought to be based sion evi- prosecution in a criminal case offers attempting read the ele- than rather “professional accused is a dence that the the definition of ments of that rule into attempt- of an gambler” or that victim “character”. “virgin.” rape was a Is this ed Graham, § supra, at 355 Wright & 404(a) offered as by Rule when barred omitted). (footnotes Wigmore, IA See also evidence of conduct? Or circumstantial physical capacity, supra, (distinguishing § 83 proposed to in which it is take a civil case skill, char- attributes from and other similar “clumsy” or prove that the defendant acter). a prone” “accident “color-blind” or of definition is question A difficult more all of these “wealthy playboy.” Are characteris- presented by proof of mental of “character”? usually thought of as Insanity is not tics. omitted). (footnotes Id. at 349-50 Wigmore question of “character” does not Wright & Graham treatise The mental infir- argues evidence of that other immediately questions. Simi- answer these prove conduct. While mity is admissible larly, a notable dearth of definitions there is proved indirectly must be mental condition in other standard works of “character” character, mind does not weakness of like as evidence. One the law of —such impact of a usually prejudicial have in Professor McCormick’s it is—is contained judgment. moral (which quoted Judge is also Wein- treatise Graham, § supra, at Wright & work): generalized ais stein’s “Character (footnotes omitted) Wigmore, (citing IA su- disposition, or of the person’s description of 86). § pra, trait, general such respect to a disposition problem convinc- exposure to this My brief temperance peacefulness.” honesty, observing Wigmore correct me that es on Evidence Strong, McCormick John W. that: 1992) (Practitioner Treatise § at 825 evi- against “character prohibition Margaret A. B. & (quoted in Jack Weinstein ¶ great enigmas of the 404[01], dence” is one Berger, Evidence Weinstein’s implications practical (1990)). law of evidence. Obviously, general defi- convoluted. complex and of the rule are nition, suggesting perhaps helpful while underpinnings of rule The theoretical 874 P.2d 25 origins of the obscure. The historical are McCURRY, Bobby Gene poorly are understood. rule Petitioner-Appellee, 54.1, Wigmore, sUpra, § IA McCURRY, Respondent- Carla June all the text-writers

I am unable do what Appellant. *13 legal have failed to do. and other authorities the contours of the I am unable to outline No. 14709. 404(A) in Rule and to ex- term “character” for why penchant anal sex plain Appeals Defendant’s of of New Mexico. without, within, those contours. or falls lies March Nevertheless, I concluded that have enjoyment of characteristic —Defendant’s “disposition” as a sex—even if described a “propensity,” physical more like or

or a characteristic, testimony concerning

mental precluded by is not Rule than

which generalized honesty, trait similar

like peacefulness. capable It is

temperance,

objective proof disproof, and in fact was testimony

proved at trial below knowledge. The

a witness with first-hand testimony did not her on an

witness base reputation

opinion or on Defendant’s —the ordinarily are only kinds of 405, to

permitted, under Rule be used I person’s hold

establish character. would

(as point disagreement my third with the Long’s testimony

plurality) that Ms. was not a trait

evidence of Defendant’s 404(A) character, under Rule forbidden prove offered to that he in con-

when acted therewith,

formity but was instead evidence capable objec- personal

of a characteristic precluded by proof

tive therefore 404(A).

Rule reasons, disagree I

For these (as my

plurality point fourth and final

disagreement) court that the trial erred testimony

admitting Long’s Ms. Defen- about that, enjoyment It

dant’s of anal sex. follows given the reasons out above and those set III), plurality (except I opinion

in the Part in affirming

concur Defendant’s convictions.