State v. Flores

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-002

Filing Date: January 5, 2010

Docket No. 29,650

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

JOSEPH FLORES,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

Jay W. Forbes, District Judge

McGarry Law Office

Kathleen McGarry

Glorieta, NM

for Appellant

Gary K. King, Attorney General

Ralph E. Trujillo, Assistant Attorney General

Santa Fe, NM

for Appellee

OPINION

DANIELS, Justice.

{1} Defendant Joseph Flores brings this direct appeal from his first-degree murder

conviction for fatally stabbing his former lover, Vernon Green, twenty-one times with a

Phillips screwdriver. We reject his arguments that the evidence was insufficient to support

the jury’s determinations that he was the killer and that he acted with the requisite deliberate

intent to kill. We also determine that the trial court did not abuse its discretion by admitting:

(1) evidence that after Green broke off the relationship with Defendant, Defendant contacted

Green’s ex-wife and claimed that Green was plotting to kidnap, rape, and kill their young

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son; (2) testimony of Green’s mother regarding Green’s spontaneous verbal identification

of Defendant when he unexpectedly saw Defendant in Carlsbad; and (3) an in-court

identification of Defendant by an eyewitness who had seen his photograph after having seen

him personally several times at the scene of the crime, both before and during the day of the

killing. Finding no error, we affirm his conviction and life sentence.

I. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

{2} Our substantial evidence review of the sufficiency of the evidence to support a

conviction must take into account both the jury’s fundamental role as factfinder in our

system of justice and the independent responsibility of the courts to ensure that the jury’s

decisions are supportable by evidence in the record, rather than mere guess or conjecture.

“The test for sufficiency of the evidence is whether substantial evidence of either a direct or

circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with

respect to every element essential to a conviction.” State v. Duran, 2006-NMSC-035, ¶ 5,

140 N.M. 94, 140 P.3d 515 (internal quotation marks and citation omitted); see State v.

Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661. “Substantial evidence is

defined as that evidence which is acceptable to a reasonable mind as adequate support for

a conclusion.” State v. Robinson, 94 N.M. 693, 696, 616 P.2d 406, 409 (1980).

Furthermore, “we must view the evidence in the light most favorable to the guilty verdict,

indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the

verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

{3} “In our determination of the sufficiency of the evidence, we are required to ensure

that a rational jury could have found beyond a reasonable doubt the essential facts required

for a conviction.” Duran, 2006-NMSC-035, ¶ 5 (internal quotation marks and citation

omitted). This determination

does not involve substituting the appellate court’s judgment for that of the

jury . . . , but it does require appellate court scrutiny of the evidence and

supervision of the jury’s fact-finding function to ensure that, indeed, a

rational jury could have found beyond a reasonable doubt the essential facts

required for a conviction.

State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992). With those guidelines in

mind, we address Defendant’s challenges to the sufficiency of the evidence to support a

rational jury’s determinations that he killed Green and that he did so with the deliberate

intent required for a first-degree murder conviction.

B. The Relevant Evidence

{4} The State’s evidence showed that Defendant and Green had previously been living

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together as lovers in Las Vegas, Nevada. Approximately two weeks before the stabbing,

Green left Defendant and moved to Carlsbad to live with his parents. Green enrolled for an

alcohol server certification class at the Carlsbad Quality Inn, where the crime ultimately took

place.

{5} Shortly after Green left Las Vegas, Defendant made fifteen or more phone calls to

Green’s ex-wife. Defendant reported to Green’s ex-wife not only that Green had left him,

but also that Green intended to hide and hurt their young son “in many ways that should

never happen to a child.” Defendant also faxed to her what he claimed were pages from

Green’s notebook depicting the abuse that Green purportedly was planning to inflict on his

son. The ex-wife called the Eddy County Sheriff’s office and reported the calls, along with

the phone number for Defendant which had been recorded by her telephone’s caller

identification. A deputy sheriff called Defendant on September 13, 2004, eleven days before

the September 24 killing of Green, and asked about his calls to Green’s ex-wife. Defendant

repeated his claims about Green’s plans to hurt his own son, telling the officer that Green

planned to sodomize the boy, tie him up, kill him, and drop him by a river. Defendant also

claimed to the officer that he was married to Green, but that Green had been abusive to him.

He finally told the officer that he was planning to move to Houston, Texas.

{6} The State’s evidence also traced Defendant’s movements in the days between the

breakup and the stabbing of Green, which took place during the lunch break of the alcohol

server class Green was attending on September 24.

{7} Defendant’s former employer, a sheet metal contractor in Las Vegas, testified that

Defendant had approached him to get an advance on his salary, claiming that he had a son

who had died in Arizona and that he needed $1200 to travel to New Mexico to bury him. In

addition to advancing Defendant the $1200, the employer let Defendant use his credit card

to rent a car in Las Vegas for the trip to New Mexico.

{8} Green’s mother testified that while she was driving Green to work several days

before the stabbing, Defendant pulled alongside their car at a stop light in Carlsbad. She

testified that Green looked over at Defendant and spontaneously stated, “There’s Joseph,”

while appearing to be “very agitated” and “scared.” She immediately looked over at the man

her son was referring to and later identified Defendant in court as the man she had seen

driving the adjacent car. When the light changed to green, Defendant turned his car and

drove away without making contact.

{9} A hotel receptionist identified Defendant and testified that she had seen him loitering

around the Carlsbad Quality Inn on two separate days. On the first occasion, several days

before Green was stabbed at the hotel, Defendant approached her desk to inquire about room

rates, claimed that his vehicle had broken down in the hotel parking lot, and said that he was

waiting for someone to come from Arizona to retrieve him and his vehicle. He stayed

around the hotel for most of that day. At some point, he inquired about the alcohol server

class at the hotel, and the receptionist advised him that it was not being held that week. The

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next time she saw Defendant was on September 24, the day when the servers’ class attended

by Green was actually held. She noticed Defendant in the lobby four different times that

morning. At one point before noon, he came over to her desk and asked what time the

servers’ class would recess, claiming he had a friend in the class he was planning to take to

lunch.

{10} The evidence of Defendant’s presence at the Quality Inn during the hours before the

stabbing was substantial. As Defendant candidly acknowledged in his own brief-in-chief,

“[t]here were many witnesses that saw a person they later identified as Joseph Flores

hanging around the Quality Inn on September 24, 2004.” A second hotel employee testified

that, in response to her inquiry to Defendant as to his presence at 8:30 a.m., he explained that

he was waiting for someone who would be attending the class. After later seeing him in the

dining room and the hallway, she asked him to wait outside. Numerous other witnesses saw

him at various locations in and around the hotel on that morning.

{11} The class broke for lunch just before noon. During the break, Defendant was seen

arguing with Green in front of an alcove on the side of the hotel. The argument was loud

enough to be heard by several witnesses from around the corner of the hotel. When cries of

pain rang out from the alcove, Green’s classmates and hotel employees rushed toward the

sounds and found Green lying in a fetal position covered in his own blood. He died nearly

two months later from complications caused by the twenty-one stab wounds to his face,

skull, chest, and left shoulder.

{12} Although no one reported seeing the actual stabbing, several witnesses testified to

having seen Defendant calmly, even “non-chalant[ly]” walk away from the alcove directly

after the cries were heard. Witnesses described Defendant’s shirt, jeans, and hands as

covered in blood. One witness testified that she saw Defendant holding a neon-green

Phillips screwdriver with blood on it, while other witnesses saw Defendant remove a

bloodied shirt from his torso as he left the scene. While neither the murder weapon nor the

bloody clothing removed by Defendant was ever recovered, a medical expert testified that

the majority of Defendant’s eighteen head wounds were perfectly “cross-shaped” and

between a quarter of an inch to a half inch in diameter, which the State argued were

consistent with the cruciform point of a Phillips screwdriver.

{13} The State also presented evidence of Defendant’s behavior after the stabbing. The

Eddy County deputy sheriff who had called Defendant about his calls to Green’s ex-wife

eleven days earlier called him again at the same number within an hour after the stabbing.

Defendant hung up on the officer twice as soon as the officer identified himself and asked

Defendant where he was. On the third call, after the officer again started by asking

Defendant where he was, Defendant did not answer the question but responded instead with

questions of the officer, most significantly asking about “[w]hat happened to Vernon” before

the officer mentioned anything at all about Green. When asked again about his whereabouts,

Defendant claimed he was somewhere in California before the phone connection abruptly

ended again.

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{14} Defendant was next seen at work in Las Vegas, noticeably nervous, “smoking a lot

of cigarettes and drinking a lot of water,” on Monday, September 27, three days after Green

was stabbed in Carlsbad. Defendant asked a coworker and his employer to sign affidavits

representing that they had seen him at work in Las Vegas on September 24, the date of the

stabbing. Both men testified at trial that the affidavits presented to them were false, because

they had not really seen Defendant on that day.

{15} Defendant did not testify or present any other evidence.

C. The Evidence Was Sufficient to Support Defendant’s Conviction

1. Sufficiency of the Evidence to Establish that Defendant Was the Killer

{16} We reject as unworthy of extended discussion Defendant’s cursory argument that the

evidence was insufficient to support a conclusion that he was the person who stabbed Green.

The evidence was simply overwhelming on that issue. Even without the extensive evidence

of Defendant’s stalking activities, his motive, and his coverup efforts, his identity as the

killer was established by the eyewitness testimony about the sequence of his arguing and

going to the alcove with Green, followed by Green’s screams of pain, continuing with

Defendant’s walking out of the alcove holding the bloody screwdriver with blood all over

his own hands and body, and concluding with the immediate discovery of Green’s bloody

body left alone on the floor of the alcove.

{17} The law does not require testimony from a witness who personally saw Defendant

at the very moment he actually stabbed his victim. In fact, the totality of the compelling

circumstantial evidence here far exceeds the quantum held “adequate to support the

conclusion that Defendant killed the victim” in the absence of direct eyewitness testimony

in State v. Rojo, 1999-NMSC-001, ¶ 23, 126 N.M. 438, 971 P.2d 829 (filed 1998). The fact

that “each component may be insufficient to support the conviction when viewed alone does

not mean the evidence cannot combine to form substantial, or even overwhelming, support

for the conviction when viewed as a whole.” Id.

2. Sufficiency of the Evidence to Establish Deliberate Intent to Kill

{18} The only sufficiency of evidence argument that we need address in any greater detail

is the one that was the primary focus of Defendant’s appeal: whether the evidence was

sufficient to support the jury’s determination that he committed the killing with the

deliberate intent to kill that distinguishes first-degree from second-degree murder.

{19} In New Mexico, first-degree murder is defined as “any kind of willful, deliberate, and

premeditated killing.” NMSA 1978, § 30-2-1(A) (1994). “Deliberate intention” is intention

that is “arrived at or determined upon as a result of careful thought and the weighing of the

consideration for and against the proposed course of action.” Cunningham,

2000-NMSC-009, ¶ 25 (internal quotation marks and citation omitted). We have emphasized

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that circumstantial evidence alone can amount to substantial evidence. Id. ¶ 29; see also

Rojo, 1999-NMSC-001, ¶ 23. Indeed, “[i]ntent is subjective and is almost always inferred

from other facts in the case . . . .” Duran, 2006-NMSC-035, ¶¶ 7-8 (internal quotation marks

and citation omitted) (“Deliberate intent may be inferred from the particular circumstances

of the killing . . . .”).

{20} To support his argument of legal insufficiency, Defendant relies primarily on Garcia,

in which this Court held that there was insufficient evidence of deliberation to uphold a

first-degree murder conviction. 114 N.M. at 271, 837 P.2d at 864. The defendant and the

victim in Garcia drank large amounts of alcohol and quarreled for a number of hours before

eventually agreeing to fight. The fight culminated in the defendant’s stabbing the victim in

his chest several times. Id. at 270, 837 P.2d at 863. We concluded that there was

insufficient evidence in Garcia “to support the jury’s conclusion that . . . [the defendant]

decided to stab [the victim] as a result of careful thought; that he weighed the considerations

for and against his proposed course of action; and that he weighed and considered the

question of killing and his reasons for and against this choice.” Id. at 274, 837 P.2d at 867;

see also State v. Adonis, 2008-NMSC-059, ¶ 20, 145 N.M. 102, 194 P.3d 717 (concluding

that the record contained no evidence from which a factfinder could reasonably infer that

there had been any “reflection or contemplation before the killing” by the defendant).

{21} The facts in Garcia have been distinguished many times by this Court from the facts

in cases where there was sufficient evidence of deliberation. For example, in Duran,

2006-NMSC-035, ¶ 11, we found that the jury could draw rational inferences of deliberation

from the large number of wounds, the evidence of a prolonged struggle, the evidence of the

defendant’s attitude toward the victim, and the defendant’s own statements. Duran relied

on a number of our precedents that had similarly rejected comparisons to the facts in Garcia:

See Rojo, 1999-NMSC-001, ¶ 24, 126 N.M. 438, 971 P.2d 829 (deliberate

intent to kill established when strangulation took several minutes and

defendant had motive to kill victim); Sosa, 2000-NMSC-036, ¶ 14, 129 N.M.

767, 14 P.3d 32 (evidence that defendant went armed to victim’s home,

waited for victim to arrive, shot at unarmed victim, and continued attack after

victim tried to flee supported inference of deliberate intent); State v. Coffin,

1999-NMSC-038, ¶ 76, 128 N.M. 192, 991 P.2d 477 (jury could infer

defendant formed deliberate intent to kill victim when defendant told victim

to get back in his car then shot victim several times from behind);

Cunningham, 2000-NMSC-009, ¶ 28, 128 N.M. 711, 998 P.2d 176

(deliberate intent inferred from defendant firing fatal shot at victim after

victim was incapacitated and defenseless).

Id. ¶ 8.

{22} In this case, there was ample evidence from which a reasoning jury could have found

that Defendant (1) was embittered by Green’s rejection of him, (2) tried to hurt Green by

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making scandalous accusations to his ex-wife and the police, (3) made methodical plans for

a trip to New Mexico in pursuit of Green, (4) surreptitiously followed Green to Carlsbad, (5)

stalked Green in Carlsbad over a period of days, (6) found out about Green’s plans to attend

the alcohol server class, (7) inquired about the time and place of Green’s class, (8) found out

when he could get Green alone during a class recess, (9) deliberately lay in wait for Green,

(10) carried the screwdriver with him to the fatal confrontation for no other discernible

purpose than to use it as a weapon, (11) stabbed Green so many times that it evidenced an

effort at overkill, (12) immediately and calmly walked away from Green’s bleeding body,

(13) began getting rid of the evidence as he walked away, (14) fled the scene, (15) tried to

deceive and evade the authorities, and (16) attempted to concoct a false alibi.

{23} Not only may Defendant’s acts before and during the crime provide evidence of

intent, evidence of flight or “an attempt to deceive the police” may prove consciousness of

guilt. State v. Martinez, 1999-NMSC-018, ¶¶ 29-30, 127 N.M. 207, 979 P.2d 718 (internal

quotation marks and citations omitted).

{24} The sufficiency of the evidence in this case provides a striking contrast with that

which we have found insufficient to justify a reasoned finding of guilt beyond a reasonable

doubt in State v. Vigil, 2010-NMSC-003, __ N.M. __, __ P.3d __ (No. 30,896, January 5,

2010), filed this same date. The totality of the evidence in this record certainly supports

rational findings by a jury that Defendant personally inflicted the multiple deadly stab

wounds and that he “acted deliberately, rather than rashly and impulsively, in killing” Green.

Adonis, 2008-NMSC-059, ¶ 24. The jury would have been amply justified in reasoning from

the evidence in this record that Defendant made and carried out a plan over a two-week

period to exact revenge on Green for rejecting him and to make sure that if he could not have

Green, no one else ever would. We therefore hold that substantial evidence supported the

jury’s determination that Defendant was guilty of willful, deliberate, and premeditated

first-degree murder.

II. EVIDENTIARY ISSUES

A. Standard of Review

{25} We examine the admission of evidence for abuse of discretion. State v. Stanley,

2001-NMSC-037, ¶ 5, 131 N.M. 368, 37 P.3d 85. “An abuse of discretion occurs when the

ruling is clearly against the logic and effect of the facts and circumstances of the case. We

cannot say the trial court abused its discretion by its ruling unless we can characterize it as

clearly untenable or not justified by reason.” State v. Woodward, 121 N.M. 1, 4, 908 P.2d

231, 234 (1995) (citation omitted).

B. Evidence of Defendant’s Scandalous Accusations Against Green

{26} Defendant argues that the testimony concerning Defendant’s accusations about the

bizarre alleged plot by Green to kidnap, sodomize, and murder his own child was

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inadmissible because the evidence was irrelevant under Rule 11-401 NMRA, was uncharged

misconduct that did not meet the requirements of Rule 11-404(B) NMRA, and was more

prejudicial than probative under Rule 11-403 NMRA.

1. Relevance

{27} First, we determine whether the trial court abused its discretion in finding the

evidence relevant. Rule 11-402 NMRA makes it clear that only relevant evidence is

admissible. Rule 11-401 defines relevant evidence as “evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” As our case law has

observed, “[a]ny doubt whether the evidence is relevant should be resolved in favor of

admissibility.” State v. Balderama, 2004-NMSC-008, ¶ 23, 135 N.M. 329, 88 P.2d 845. It

is the role of the jury, not that of the court, to decide what weight, if any, to give the

evidence in light of the factual context of a particular case. Id. ¶ 35.

{28} To determine whether Defendant’s insistent, incredible, and uncorroborated

accusations against Green were relevant, we consider whether they related to the issues in

the case. See id. ¶ 24. The State clearly and repeatedly articulated its theory that the

accusations displayed Defendant’s motives and malicious intent toward Green. Proof of

motive sheds light on the likelihood of a defendant’s guilt, and intent is an essential element

of murder. Evidence that makes motive or intent more or less probable is therefore relevant.

See id. ¶ 25.

{29} We conclude that the evidence of Defendant’s accusations against Green, while not

conclusive when viewed in isolation from the other evidence, could have made it appear

more probable to the jury that he was motivated to hurt or kill Green than would have been

the case had the evidence been kept from them. The evidence therefore meets the definition

of relevant evidence in Rule 11-401 and was admissible under Rule 11-402.

2. Uncharged Misconduct

{30} Defendant also argues that admission of his accusations against Green violated the

first sentence of Rule 11-404(B): “Evidence of other crimes, wrongs or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” The very next sentence of the rule, however, makes it clear that evidence

reflecting negatively on an accused’s character or conduct is not made inadmissible for that

reason, so long as it is relevant for reasons other than to show a defendant is the kind of

person who might have committed the charged crime: “It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity or absence of mistake or accident.” Id.

{31} We have noted that in order to avoid the introduction of uncharged misconduct that

does no more than indicate a defendant is the kind of person inclined to commit the crime

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charged or other bad acts, “it is incumbent upon the proponent of Rule 11-404(B) evidence

to identify and articulate the consequential fact to which the evidence is directed. Part of the

proponent’s responsibility is also to cogently inform the court . . . [of] the rationale for

admitting the evidence to prove something other than propensity.” State v. Gallegos,

2007-NMSC-007, ¶ 25, 141 N.M. 185, 152 P.3d 828.

{32} As required by Gallegos, the State articulated both before and during trial that

Defendant’s accusations demonstrated attempts to hurt and isolate Green from others after

the relationship breakup, evincing Defendant’s motive and intent. In Rojo, 1999-NMSC-

001, ¶ 47, we upheld the introduction of evidence of a defendant’s prior violent acts against

a victim and of his deteriorating relationship with the victim to support the state’s theory that

the defendant had a motive for killing her after she broke off their relationship. “[E]vidence

of the deterioration of [the defendant’s] relationship with the victim . . . directly addresses

the motivational theories presented at trial.” Id. In determining Defendant’s guilt, the “jury

may consider the relationship of the parties and the animus of the accused toward the

deceased.” Id. ¶ 24. The evidence here similarly helped shed light on the likelihood that

Defendant was the killer and on the intent with which he acted. The evidence was therefore

admissible under Rule 11-404(B).

3. Prejudicial Impact Versus Probative Value

{33} Finally, Defendant argues that the evidence of his accusations against Green was

more prejudicial than probative and should have been excluded under Rule 11-403, which

gives courts discretion to exclude otherwise relevant and admissible evidence if its probative

value is substantially outweighed by its prejudicial impact. Gallegos, 2007-NMSC-007, ¶

22; see Rojo, 1999-NMSC-001, ¶ 48.

{34} The accusations Defendant made to Green’s ex-wife and the police purported to show

scandalous intentions on the part of Green, not of Defendant. To the extent that they

reflected adversely on Defendant instead of Green, it was only because they reflected a

malicious intent to harm and isolate Green, which made them probative evidence of

Defendant’s own motive and intent. “[T]he fact that some jurors might find this evidence

offensive or inflammatory does not necessarily require its exclusion.” Rojo,

1999-NMSC-001, ¶ 48.

{35} “[D]etermining whether the prejudicial impact of evidence outweighs its probative

value is left to the discretion of the trial court.” State v. Wilson, 117 N.M. 11, 17, 868 P.2d

656, 662 (Ct. App. 1993). We should reverse only where we find the trial court has abused

that discretion. Rojo, 1999-NMSC-001, ¶ 48. In this case, the State offered both testimony

of Defendant’s frantic “warning” calls and the actual images he faxed to Green’s ex-wife that

he claimed were illustrations of what Green intended to do to his own son. After considering

the arguments of counsel, the district judge made considered decisions to admit the

testimony and exclude the graphic depictions as unduly prejudicial.

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{36} It is obvious that the trial judge took seriously his responsibility under Rule 11-403

to balance the prejudicial and probative aspects of the evidence by permitting testimony

related to the accusations while barring the related graphic images. Because the evidence

was probative of motive and intent, and because the trial court took prudent and reasonable

steps to minimize any unduly prejudicial effect, we conclude that admission of the testimony

was not an abuse of discretion.

C. Admission of Green’s Hearsay Identification of Defendant

{37} We next address Defendant’s argument that Green’s mother’s testimony about her

son’s spontaneous declaration, “There’s Joseph,” upon seeing Defendant driving next to him

in Carlsbad, was inadmissible hearsay.

{38} The statement was clearly hearsay, as defined by Rule 11-801(C) NMRA of the New

Mexico Rules of Evidence: “Hearsay is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” It certainly was an out-of-court statement, and its only probative value was in

establishing that, as Green indicated, Defendant was already in Carlsbad four days before

the stabbing.

{39} Categorization of a statement as hearsay, however, is only the beginning point of a

hearsay admissibility determination. Once a statement is determined to be hearsay, it is

necessary to consider whether it fits one of the numerous exceptions to Rule 11-802’s default

position of exclusion: “Hearsay is not admissible except as provided by these rules or by

other rules adopted by the supreme court or by statute.” Rule 11-802 NMRA. The trial

court determined that the statement was admissible as a hearsay exception, observing only

that the “res gestae rules that the courts have followed over the years have been . . .

changed.”

1. Res Gestae

{40} The Latin term “res gestae” means “the events at issue or others contemporaneous

with them.” Bryan A. Garner, A Dictionary of Modern Legal Usage 761 (2d ed. 1995). It

has been used historically in the context of various evidentiary and nonevidentiary issues in

the case law. See, e.g., State v. Finchum, 111 N.M. 716, 717-18, 809 P.2d 630, 631-32

(1991) (holding that a res gestae theory justified joinder for trial of charges of murder of a

male victim and battery against a female victim where evidence of the battery would have

been admissible in a separate murder trial on a res gestae theory); State v. Farris, 95 N.M.

96, 97, 619 P.2d 541, 542 (1980) (discussing whether the victim’s provocative conduct was

sufficiently within the “res gestae of the killing” to justify a voluntary manslaughter

instruction in a murder case), overruled on other grounds by Sells v. State, 98 N.M. 786, 653

P.2d 162 (1982); State v. Stephens, 93 N.M. 458, 462, 601 P.2d 428, 432 (1979) (holding in

a felony-murder prosecution that a defendant was entitled to a jury instruction on second-

degree murder because there was an issue as to “whether the murder was committed as part

10

of the res gestae of the felony of robbery”), overruled on other grounds by State v.

Contreras, 120 N.M. 486, 903 P.2d 225 (1995); State v. Paris, 76 N.M. 291, 294, 414 P.2d

512, 514 (1966) (holding that “the confession of an accused, not a part of the res gestae,” as

well as a confession that is part of the res gestae of a crime, may be used to prove the

commission of the corpus delicti of a crime). As many as seven distinguishable legal

concepts have historically been referred to by use of this same term. 4 Michael H. Graham,

Handbook of Federal Evidence § 803:2, at 90 (6th ed. 2006).

{41} When used in the evidentiary context, res gestae most commonly has referred to a

cluster of judicially-created exceptions to the exclusion of evidence on hearsay grounds that

first came into use in the early 1800s. See 6 John Henry Wigmore, Evidence § 1767, at 181

(3d ed. 1940); see, e.g., State v. Goodwin, 51 N.M. 65, 71, 178 P.2d 584, 588 (1947)

(holding that a spontaneous statement under stress was admissible under “the res gestae

exception to the hearsay rule”). While widely used before adoption of the modern evidence

codes, the term had been repeatedly criticized by courts and commentators. Judge Learned

Hand described it as “a phrase which has been accountable for so much confusion that it had

best be denied any place whatever in legal terminology.” United States v. Matot, 146 F.2d

197, 198 (2d Cir. 1944). It has been described as “not only entirely useless, but even

positively harmful” and deserving of being “repudiated as a vicious element in our legal

phraseology.” 6 John Henry Wigmore, Evidence in Trials at Common Law § 1767, at 255

(James H. Chadbourn rev. 1976). It is not only so vague as to create more problems than it

resolves, it is a completely unnecessary term in the evidence context because “every rule of

evidence to which it has ever been applied exists as a part of some other well-established

principle and can be explained in the terms of that principle.” Id.

{42} When the Federal Rules of Evidence were adopted, they avoided any use of the term

res gestae whatsoever. Proposed Federal Rules of Evidence for United States Courts and

Magistrates, 56 F.R.D. 183 (1972) (ordering promulgated Rules of Evidence transferred to

Congress for approval). Despite our prompt adoption of the Federal Rules of Evidence in

1973, see State v. Martinez, 2008-NMSC-060, ¶ 25, 145 N.M. 220, 195 P.3d 1232, the term

still occasionally has crept back into judicial opinions. See, e.g., Finchum, 111 N.M. at 717,

809 P.2d at 631(referring to the State’s reliance on “the‘res gestae’ exception of the hearsay

rule set forth in State v. Mottola, 84 N.M. 414, 504 P.2d 22 (Ct. App. 1972)”); State v.

Cozzens, 93 N.M. 559, 561, 603 P.2d 298, 300 (Ct. App. 1979) (determining that a hearsay

statement was “not admissible as part of the res gestae”). Our Court of Appeals has

accurately cautioned that “both courts and commentators have largely abandoned the general

haze of the res gestae doctrine.” State v. Rael, 117 N.M. 539, 542 n.1, 873 P.2d 285, 288

n.1 (Ct. App. 1994) (internal quotation marks and citation omitted).

{43} We agree that the phrase “res gestae, in itself, adds nothing but confusion to an

already complex area of the law. The better practice is to abandon the use of the phrase

altogether and to, instead, use the specific rule of evidence or statute that applies to the

particular factual situation presented.” State v. Hansen, 989 P.2d 338, 354 (Mont. 1999); see

also State v. Kemp, 948 A.2d 636, 652 (N.J. 2008) (Albin, J., concurring) (cataloguing

11

numerous federal and state appellate “courts throughout the country [that] have already come

to the conclusion that res gestae is outdated, is no longer relevant, and should be discarded”).

{44} The fact that the trial judge in this case referred to the principle justifying admission

by the old term of res gestae, rather than the terms used in the New Mexico Rules of

Evidence, does not mean the admission of the testimony was error, since “we may uphold

the judge’s decision if it was right for any reason.” State v. Macias, 2009-NMSC-028, ¶ 17,

146 N.M. 378, 210 P.3d 804. We turn, therefore, to an analysis of the specific hearsay

exceptions explicitly set forth in the rules, which by their own terms, “govern proceedings

in the courts of the State of New Mexico.” Rule 11-101 NMRA.

2. Excited Utterance

{45} Rule 11-803(B) NMRA provides for the admissibility over a hearsay objection of

“[a] statement relating to a startling event or condition made while the declarant was under

the stress of excitement caused by the event or condition.” This common-law-based

exception had been deduced and articulated by Dean Wigmore in his analysis of one of the

most common applications of the res gestae exception in the case law, see 6 Wigmore, supra,

§§ 1745-1763, at 131-76 (3d ed. 1940), and “finds abundant support in the decided federal

cases.” Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 803(2)[01] (1985).

It was recognized through the res gestae concept by pre-rules New Mexico cases. See, e.g.,

Goodwin, 51 N.M. at 71, 178 P.2d at 588.

{46} Defendant argues that the excited utterance exception does not apply here because

there was insufficient excitement in the victim’s voice when he spontaneously uttered

“There’s Joseph” upon seeing Defendant driving along next to him. Defendant’s argument

both disregards the reasoning underlying the excited utterance exception and takes an overly

narrow view of the word “excited.”

{47} As we have recently emphasized, “[t]he theory underlying the excited utterance

exception is that the exciting event induced the declarant’s surprise, shock, or nervous

excitement which temporarily stills capacity for conscious fabrication and makes it unlikely

that the speaker would relate other than the truth.” Macias, 2009-NMSC-028, ¶ 30 (internal

quotation marks and citation omitted). Accordingly, to constitute an excited utterance, “the

declaration should be spontaneous, made before there is time for fabrication, and made under

the stress of the moment.” State v. Martinez, 102 N.M. 94, 99, 691 P.2d 887, 892 (Ct. App.

1984).

{48} There is nothing in the case law nor in the ordinary meaning of “excited” which

restricts the meaning of the word to any narrow requirement of a frenzied or hyperactive

state. The American Heritage Dictionary of the English Language 620 (4th ed. 2000)

defines “excited” as “[b]eing in a state of excitement; emotionally aroused; stirred” and

defines “excite” as “1. To stir to activity. 2. To call forth (a reaction or emotion, for

example); elicit: odd noises that excited our curiosity . . . .”

12

{49} We apply the excited utterance analysis to a particular fact situation through an

examination of the totality of the circumstances, including

how much time passed between the startling event and the statement, and

whether, in that time, the declarant had an opportunity for reflection and

fabrication; how much pain, confusion, nervousness, or emotional strife the

declarant was experiencing at the time of the statement; whether the

statement was self-serving[; and whether the statement was] made in

response to an inquiry.

Balderama, 2004-NMSC-008, ¶ 51 (internal quotation marks and citation omitted).

{50} In this case, the totality of the circumstances surrounding Green’s declaration

indicates that he was making an utterance in direct and immediate response to a surprising

event that triggered an emotional response. Shortly before the stabbing, Green moved over

eight hundred miles to Carlsbad. The evidence at trial indicated that he did so because he

had left a troubled relationship with Defendant. It is a reasonable inference that Green was

startled to see that Defendant had tracked him down from Nevada to New Mexico. Green’s

appearance to his mother as “very agitated” and “scared” upon seeing Defendant further

indicates that he responded emotionally when making his immediate and spontaneous

utterance, “There’s Joseph.” The testimony established a textbook case for application of

the excited utterance exception, and Green’s hearsay statement to his mother identifying

Defendant as the driver of the nearby car was admissible on that ground alone.

3. Present Sense Impression

{51} The testimony was equally admissible under the present sense impression exception.

A present sense impression is a “statement describing or explaining an event or condition

made while the declarant was perceiving the event or condition, or immediately thereafter.”

Macias, 2009-NMSC-028, ¶ 29 (internal quotation marks and citation omitted). As the

advisory committee notes to the Federal Rules of Evidence observe, “[i]n considerable

measure the [excited utterance and present sense impression exceptions] overlap, though

based on somewhat different theories. The most significant practical difference will lie in

the time lapse allowable between the event and statement.” Fed. R. Evid. 803(1)-(2)

advisory committee’s notes. The theory underlying the present sense impression exception

is that “substantial contemporaneity of event and statement negate the likelihood of

deliberate or conscious misrepresentation.” Id.

{52} Both excited utterances and present sense impressions were among the theories

subsumed within the pre-rules res gestae cluster of exceptions. 4 Graham, supra § 803:2,

at 75-100. As their textual elements indicate, they differ in that an excited utterance requires

a reasonable inference that emotional stress has contributed to the making of the statement,

while present sense impression requires instead that the statement be substantially

contemporaneous with the event it is describing or explaining. 2 Kenneth S. Broun,

13

McCormick on Evidence § 271, at 251 (6th ed. 2006); see Salgado, 1999-NMSC-008, ¶ 13

(observing that reliability of a present sense impression is enhanced by the requirement of

a contemporaneous statement); see also State v. Perry, 95 N.M. 179, 180, 619 P.2d 855, 856

(Ct. App. 1980) (analyzing timeliness in applying the exception).

{53} The disputed testimony in this case presents no timeliness issue whatsoever. Green

uttered, “There’s Joseph,” at the very moment he was looking at Defendant in the car next

to him and his mother. Cf. State v. Massengill, 2003-NMCA-024, ¶ 10, 133 N.M. 263, 62

P.3d 354 (concluding that four or more hours between an event and a statement describing

that event are not “sufficiently contemporaneous”). There was virtually no time for Green

to decide to misrepresent to his mother that Defendant was driving along the streets of

Carlsbad, presumably so Defendant could be falsely accused of killing Green several days

in the future. There simply was “no apparent motive to lie.” Perry, 95 N.M. at 180, 619

P.2d at 856 (observing that an admissibility decision should take into account the declarant’s

motive to lie).

{54} One of the additional indicia of reliability of a present sense impression may be that

the person to whom the statement is made is often in a position to verify the accuracy of the

statement. 2 Broun, supra § 271, at 251. Although independent corroboration is not a

foundational requirement for admission, it may be a factor in the trial judge’s exercise of

discretion in admitting the hearsay. State v. Case, 100 N.M. 714, 718, 676 P.2d 241, 245

(1984) (holding that the lower court did not abuse its discretion by excluding an absent

declarant’s statement of identification after a fleeting view of a person, where the testifying

witness was unable to verify the accuracy of the identification). In this case, Green’s mother

looked over at the adjacent driver her son was identifying and later testified that Defendant

was the person she had seen. Defense counsel was unable to cast any doubt on her testimony

during an unlimited cross-examination.

{55} We conclude that, under these circumstances, the statement by Green to his mother

contemporaneously identifying Defendant as the driver of the neighboring car as Defendant

was clearly admissible under the present sense impression exception to the hearsay rule.

D. Admission of an In-Court Identification of Defendant

{56} Two weeks after Green was stabbed, his sister showed the Quality Inn receptionist,

with whom she previously had worked, a photograph of Defendant to see if the receptionist

recognized him. The receptionist immediately responded: “That’s the guy.” Defendant

argues that the receptionist’s subsequent in-court identification of Defendant as the man she

spoke with and saw around the hotel several times, including the date of the stabbing, was

inadmissible as a product of an unnecessarily suggestive pretrial identification procedure.

The parties have neither raised nor briefed any issue about the lack of any involvement by

a state actor in the display of the photograph to the witness; in view of our conclusion that

the in-court identification was not tainted by the pretrial photo showing, we find it

unnecessary to consider the issue. See Lynn M. Talutis, Admissibility of In-Court

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Identification as Affected by Pretrial Encounter that was not Result of Action by Police,

Prosecutors, and the Like, 86 A.L.R. 5th 463 (2001) (“To suppress an in-court identification

that follows an allegedly suggestive pretrial encounter, courts have traditionally required that

the pretrial encounter have resulted from some type of government action.”).

{57} In the absence of exigent circumstances, an out-of-court identification procedure

using only one suspect or photograph is impermissibly suggestive. State v. Nolan, 93 N.M.

472, 476, 601 P.2d 442, 446 (Ct. App. 1979). Ultimately, however, “the linchpin in

determining the admissibility of identification testimony is whether the testimony is

reliable.” State v. Baca, 99 N.M. 754, 758, 664 P.2d 360, 364 (1983). In Baca, we relied

on a line of United States Supreme Court precedents establishing the “independent source”

test: “the issue is whether the witness is identifying the defendant solely on the basis of his

memory of events at the time of the crime, or whether he is merely remembering the person

he picked out in a pretrial procedure.” Manson v. Brathwaite, 432 U.S. 98, 122 (1977).

{58} In this case, the district judge took testimony out of the presence of the jury from the

receptionist-witness, the sister who had shown her the photo, and an investigating officer

who had later conducted a proper identification process with the witness.

{59} The receptionist testified that she had observed and talked with Defendant several

days before the day of the stabbing, when he approached her and discussed several matters,

including the scheduling of the alcohol server class that was to be held the day of the

stabbing. She testified that she also observed Defendant loitering around the hotel three or

four separate times on the day of the stabbing. On one of these occasions, Defendant

approached her and initiated a conversation to find out when the alcohol server class would

be recessed for lunch. She was able to describe Defendant’s physical features, manner of

speech, and the clothing he wore on the day of the stabbing. When asked whether seeing the

single photo influenced her memories about her observations and identification of

Defendant, the witness responded, “Absolutely not.” According to the investigating officer,

the receptionist unhesitatingly identified Defendant from a non-suggestive pretrial police

photo array.

{60} The totality of the circumstances strongly supports the trial court’s findings that the

witness’s identification of Defendant was reliable and was not influenced by the out-of-court

identification. “Once a court finds that the evidence is admissible, it becomes a jury

determination as to the accuracy of a witness’ identification.” State v. Cheadle, 101 N.M.

282, 286, 681 P.2d 708, 712 (1983), overruled on other grounds by State v. Belanger, 2009-

NMSC-025, 146 N.M. 357, 210 P.3d 783. Even though the State did not elicit testimony of

the pretrial photo identification before the jury, the trial court properly permitted defense

counsel to raise and explore the subject, for whatever weight the jury chose to give it. The

court followed the correct procedures in dealing with the matter, and the record amply

supports the decision to permit the receptionist’s in-court identification of Defendant as the

man she had seen and conversed with at the hotel.

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III. CONCLUSION

{61} We hold that Defendant’s conviction was supported by sufficient evidence and

that the trial court did not abuse its discretion in making the various evidentiary rulings

challenged by Defendant. We therefore affirm Defendant’s conviction and sentence.

{62} IT IS SO ORDERED.

____________________________________

CHARLES W. DANIELS, Justice

WE CONCUR:

_________________________________

EDWARD L. CHÁVEZ, Chief Justice

____________________________________

PATRICIO M. SERNA, Justice

____________________________________

PETRA JIMENEZ MAES, Justice

_________________________________

RICHARD C. BOSSON, Justice

Topic Index for State v. Flores, No. 29650

CL CRIMINAL LAW

CL-CF Capital Felony

CL-HO Homicide

CL-MU Murder

CL-SI Specific Intent

CA CRIMINAL PROCEDURE

CA-ID Identification of Defendant

AE APPEAL AND ERROR

AE-SB Substantial or Sufficient Evidence

EV EVIDENCE

EV-AE Admissibility of Evidence

EV-CE Character Evidence

EV-EU Excited Utterance

EV-HR Hearsay Evidence

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EV-PI Present Sense Impression

EV-PJ Prejudicial Evidence

EV-RC Relevancy, Materiality, and Competency

EV-SS Substantial or Sufficient Evidence

EV-WT Witnesses

17