STATE V. ELINSKI, 1997-NMCA-117, 124 N.M. 261, 948 P.2d 1209
CASE HISTORY ALERT: affected by
2012-NMSC-008
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
FREDERICK ELINSKI, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1997-NMCA-117, 124 N.M. 261, 948 P.2d 1209
APPEAL FROM THE DISTRICT COURT OF TAOS
COUNTY. Joseph E. Caldwell, District Judge.
Released for Publication November 20,
1997.
Tom Udall, Attorney General, Arthur W.
Pepin, Assistant Attorney General, Santa Fe, NM, for Appellee.
Phyllis H. Subin, Chief Public Defender,
Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
RICHARD C. BOSSON, Judge. WE CONCUR:
HARRIS L HARTZ, Chief Judge, M. CHRISTINA ARMIJO, Judge.
AUTHOR: RICHARD C. BOSSON
{1} Defendant,
Frederick Elinski, killed Diego Duran Delaree (the victim), claiming
self-defense. Charged with first degree murder, Defendant was convicted of
tampering with evidence and second degree murder with a firearm enhancement.
See
NMSA 1978, §§
30-2-1(B) (1994) (murder), 31-18-16 (1993) (use of firearm),
30-22-5 (1963) (tampering with evidence).
{2} On appeal,
Defendant argues that the trial court committed reversible error by admitting
into evidence two damaging letters in which Defendant had threatened an
unrelated third party with violence. We agree that the letters should not have
been admitted. We also agree that, in the context of this case, the court's
error was unfairly prejudicial to Defendant. Therefore, we reverse Defendant's
conviction for second degree murder and remand for a new trial.
{3} Defendant did not
testify at trial. His previous statements to the police, given during the
investigation of the shooting, were admitted into evidence. According to
Defendant's statements, he met the victim through Roberto Campos. Defendant had
been purchasing cocaine from Campos, but had become concerned that their
relationship was deteriorating because Defendant owed Campos money for cocaine.
According to Defendant, on the evening of January 16, 1995, he received a call
from Campos inviting him to Campos' home in Monte Vista, Colorado. Defendant
took a gun with him because he was concerned for his safety. When he arrived at
the Campos home, Defendant was asked to accompany Campos and the victim, who
was a friend of Campos, south to New Mexico to pick up a car. The three men set
off in two vehicles, Campos alone in his truck and Defendant and the victim in
Defendant's car. Somewhere south of Tres Piedras on Route 285, Campos pulled
over, and Defendant did the same. According to Defendant,
{*263}
both Campos and the victim pointed guns at Defendant, and Campos told the
victim to shoot Defendant. Defendant shot the victim first. Campos then left
after cautioning Defendant not to say anything about the shooting, and
Defendant returned to Colorado. At trial, Campos denied having been at the
scene of the shooting. There were no other witnesses to the incident.
{4} At a pretrial
hearing, the State presented a motion in limine to permit evidence at trial of
other bad acts committed by Defendant. For example, the State sought to
introduce evidence that Defendant owed money and had taken cocaine from Campos
in the past without paying him. The State justified this evidence under Rule
11-404(B), NMRA 1997 by alleging that Defendant's need for money provided a
motive for killing victim. Admission of that evidence is not in dispute on
appeal. The State also sought to introduce two threatening letters written by
Defendant. At the pretrial hearing, the trial court ruled that it would admit
these letters, and they were admitted at trial over Defendant's objection.
These letters form the gravamen of Defendant's appeal.
{5} The letters made
threats to a third party about a rent dispute that occurred one month before
the shooting. Defendant had been acting as a caretaker of several cabins, and
his job included collecting rent for the owner. In December 1994, Defendant
wrote two letters to a tenant, one evicting him for nonpayment of rent and the
second threatening to beat the tenant if he didn't pay. The second letter
contained the following menacing language: "If you want to talk to me it
better be to hand me some cash or get the s
beat out of you. I'm done f
with you Art. Cash or blood Art, its your choice" You f
puss.
Hey, I won't even use a bat!"
{6} The prosecutor was
frank in his reasons for offering these letters: they tended to rebut the claim
of self-defense by showing that Defendant had a violent character which made it
more likely that Defendant, not the victim, had been the first aggressor. The
State did not claim the victim was aware of these letters. During pretrial
hearings on the motion in limine, the district attorney attempted to justify
use of this evidence by citing
State v. Parish, 1994-NMSC-72,
118 N.M.
39, 44-45,
878 P.2d 988, 993-94 (1994). The prosecutor argued that
Parish
placed a new burden on the State to prove beyond a reasonable doubt that a
defendant did not act in self-defense. According to the district attorney, the
Parish
decision permitted him to "chip away" at the self-defense claim by
introducing evidence in his case in chief that would show Defendant's character
trait for aggression. Unfortunately, the trial court agreed with the district
attorney's assessment of the State's burden under
Parish. The court
concluded that the letters would be admitted precisely because they showed
Defendant was "just unreasonable," "extremely angry," and
"prone to make significant threats of violence." Therefore, the
letters permitted an inference that Defendant was less likely a person who
acted in self-defense, and more likely a person who would have been the first
aggressor.
{7} During trial, the
court admitted the letters for the stated purpose of showing the aggressive
character of Defendant. When defense counsel protested that Defendant's
character for violence had not yet been placed in front of the jury or the
court, the court responded that Defendant had placed his propensity for
violence at issue by the claim of self-defense. The letters were first read
into the record and then published to the jury. Defendant contests the legality
of that decision.
{8} Generally
speaking, a reviewing court defers to the trial court's decision to admit or
exclude evidence and will not reverse unless there has been an abuse of
discretion.
See State v. Woodward, 1995-NMSC-082, P6,
121 N.M. 1, 4,
908
P.2d 231, 234. However, our review of the application of the law to the facts
is conducted de novo.
See State v. Attaway,
117 N.M. 141, 145,
870 P.2d
103, 107 (1994). In this case, the trial court determined that a claim of
self-defense permitted the prosecution to introduce specific acts of violent
character for the sole purpose of showing propensity for violence. This is not
the law in New Mexico. Accordingly, the decision to admit the letters was error
because it was premised on a misapprehension of the law.
{*264} Claim of
Self-Defense Does Not Invite Specific Evidence of Violent Propensity
{9} In
Parish,
the Supreme Court neither changed the burden of proof for self-defense nor
opened the door to inadmissible propensity evidence. The Court reaffirmed that
when a defendant presents some evidence of self-defense that could raise a
reasonable doubt in the minds of the jurors, the prosecution has the burden of
proving beyond a reasonable doubt that the defendant did not act in
self-defense.
See Parish, 118 N.M. at 44-45, 878 P.2d at 993-94. But
this was not new. "It is settled law in New Mexico that the defendant does
not have the burden of proving that the killing was an exercise of the right of
self-defense."
Id. at 44, 878 P.2d at 993;
see also UJI
14-102, NMRA 1997;
State v. Edwards,
97 N.M. 141, 145,
637 P.2d 572, 576
(state has the burden of showing that the killing was not in self-defense).
{10} Just as the State
has long had the burden of disproving self-defense, it is equally clear that,
unless invited, the State cannot resort to specific character evidence to
satisfy that burden. Generally, Rule 11-404(A)(1), NMRA 1997 prohibits
character evidence except "evidence of a pertinent trait of character
offered by an accused, or by the prosecution to rebut the same." These
letters were not offered by Defendant nor were they offered by the State on
rebuttal. Nor do we agree with the proposition that merely by pleading
self-defense Defendant opened the door to character evidence showing propensity
for violence. That point was clearly established by this Court in
State v.
Reneau,
111 N.M. 217, 219,
804 P.2d 408, 410 .
{11} In
Reneau,
the trial court erroneously permitted the defendant to be questioned about an
earlier unrelated incident in which she had stabbed another man, not the
victim.
Id. at 218-19, 804 P.2d at 409-10. This Court determined that
the trial court had erred in admitting specific instances of violence in
connection with the defendant's character.
Id. at 219, 804 P.2d at 410.
"We do not agree that the character of the defendant should be or is an
element of self-defense."
Id. We further noted that a claim of
self-defense is not tantamount to putting one's character at issue, and we
concluded: "'It would be too attenuated an argument to say evidence of a
defendant's reputation for violence indicates a tendency not to fear another
person.'"
Id. (quoting
Johns v. United States, 434 A.2d 463,
470 n.11 (D.C. App. 1981));
cf. UJI 14-5171, NMRA 1997 (defendant's fear
as element of self-defense);
State v. Baca,
115 N.M. 536, 540,
854 P.2d
363, 367 (specific instances of a
victim's prior conduct were not
admissible to prove that the
victim was the first aggressor).
{12} Thus, the trial
court erred from the very beginning in allowing such prejudicial evidence for
precisely the wrong reason: that Defendant more likely did not act in
self-defense because he was a man of violent character or propensity. As we
shall see, this misapprehension of the law, offered initially by the State,
colored what occurred thereafter with respect to the admission of this evidence.
{13} Rule 11-404(B)
prohibits evidence of other bad acts merely to show the bad character of the
accused and a propensity to act in accordance with that character; bad-acts
evidence is admissible only if relevant to prove some other issue legitimately
in dispute.
State v. Jones,
120 N.M. 185, 187,
899 P.2d 1139, 1141 ,
cert.
quashed,
121 N.M. 57,
908 P.2d 750 (1996). To admit evidence of other bad
acts under Rule 11-404(B), the evidence must bear on a material issue, such as
intent, identity, or knowledge, other than just criminal disposition.
Jones,
120 N.M. at 188-89, 899 P.2d at 1142-43;
see also State v. Lucero,
114
N.M. 489, 492,
840 P.2d 1255, 1258 (Ct. App. 1992) (evidence whose real purpose
is to show defendant's character or disposition to commit the charged crime is
clearly inadmissible). The proponent of the evidence must demonstrate its
relevancy to the consequential facts, and the material issue, such as intent,
must in fact be in dispute.
See Lucero, 114 N.M. at 492, 840 P.2d at
1258.
{14} Relying upon
Woodward,
1995-NMSC-082, PP28-31, and
State v. Niewiadowski,
120 N.M. 361, 363-64,
901 P.2d 779, 780-81 (Ct. App.),
cert. denied, 120 N.M. 184, 899 P.2d
1138 (1995), the State
{*265} argues
that these letters would have been admissible under Rule 11-404(B) to prove
intent. Because the charge of first degree murder required the prosecution to
prove that Defendant acted with the deliberate intention to take away the
victim's life, the State offers these letters to show intent.
See UJI
14-201, NMRA 1997. We do not find that these cases justify use of these letters
for this purpose.
{15} In
Woodward,
1995-NMSC-082, PP2-5, the defendant was convicted of the first degree murder of
his wife. The Supreme Court determined that evidence was properly admitted
under Rule 404(B) regarding the defendant's plan to kill another woman because
it was relevant to the requisite mental state for first degree murder.
Woodward,
1995-NMSC-082, PP28-31. However, the two incidents were related. The defendant
believed that the other woman was responsible for the deterioration of his
marriage, and therefore the defendant's hostile acts toward this other woman
laid a foundation for his motive in subsequently killing his wife.
Id.
{16} Similarly, in
Niewiadowski,
120 N.M. at 364, 901 P.2d at 782, this Court allowed evidence of other bad acts
involving a violent incident between the defendant and the same victim that
occurred only nine days before the victim's death. In that context, we noted
that the defendant, who had been charged with first degree murder, had placed
intent in issue by claiming that he acted in self-defense.
See id. We
reasoned that evidence of defendant's other bad acts toward the
same
victim was relevant to intent in a way that did not merely show a propensity
for violence.
Id.
{17} In this case, no
attempt was made either during the preliminary hearing or the State's case in
chief to link these letters, written in mid-December 1994, to the formation of
a deliberate intent to kill a different person on January 16, 1995. The failure
to establish or even identify such a connection distinguishes this case from
both
Woodward and
Niewiadowski.
{18} Even if the
prosecutor had attempted "an articulation or identification of the
consequential fact to which the proffered evidence of other acts is
directed,"
Jones, 120 N.M. at 187, 899 P.2d at 1141, we fail to see
how evidence of threatening letters written by Defendant to a third party on an
unrelated matter one month before the shooting could have been probative of
whether Defendant acted with deliberate intent the night of the shooting,
except insofar as they evince Defendant's violent character. Therefore, we
conclude that the letters would not have been admissible under Rule 11-404(B).
{19} The State argues
that even if the trial court erred in admitting the letters for the reasons
given, the error was harmless. The State offers two grounds: (1) Defendant
opened the door to character evidence which would have been admitted in any
event at some point in the trial, and (2) the weight of other evidence was so
overwhelming that any error was inconsequential. We do not agree with the
State's analysis on either count.
{20} Defendant did not
testify at trial, but his mother, aunt, sister, and brother did testify for him
during Defendant's case. Much of their testimony can fairly be described as
"good character" evidence of the kind which opens the door to
rebuttal by the prosecution.
See Rule 11-404 (A)(1). For example, his
brother voiced the opinion that Defendant "would mean no harm to
anybody," and his mother stated that her son "would not kill anyone
or anything unless he feared for his life."
{21} The fundamental
flaw we find in the logic of the State's argument is that we cannot know what
course Defendant would have followed at trial if the prosecution had not
improperly introduced propensity evidence in its case in chief. In this case,
Defendant was not left free to choose his defense, but rather had to adjust it
to refute the evidence that was improperly admitted before Defendant had
presented his case. As we have discussed, unless an accused chooses to place
his character at issue, such evidence is not admissible, and in this case
Defendant did not place his character at issue until
after the State had
already persuaded the judge to admit the letters.
Cf. State v. Young,
117 N.M. 688, 692,
875 P.2d 1119, 1123 (Ct. App.
{*266}
1994) (holding improperly admitted evidence did not become merely cumulative
because defendant had attempted to minimize the harm through cross-examination
after his objections had been denied).
{22} We disagree with
the State for still another reason. It is true, as the State points out, that
when a defendant introduces evidence of peacefulness or other character traits,
the prosecution is entitled to rebut that testimony.
See Rule
11-404(A)(1). However, except on cross-examination, the method of proof is
limited to reputation or opinion evidence and does not include inquiry into
specific instances of misconduct unless character is an essential element of a
charge, claim, or defense. Rule 11-405, NMRA 1997;
see Baca, 115 N.M. at
540, 854 P.2d at 367 (holding victim's character for violence not essential
element of self-defense and not provable by evidence of specific acts). As we
have previously discussed, a defendant's character is not an essential element
of a self-defense claim.
See Reneau, 111 N.M. at 219, 804 P.2d at 410;
State
v. Montoya,
95 N.M. 433, 436,
622 P.2d 1053, 1056 . Therefore the letters,
as specific instances of misconduct, would not have been admissible even if the
State had waited until rebuttal.
Cf. State v. Ross,
88 N.M. 1, 3-4,
536
P.2d 265, 267-68 (Ct. App. 1975) (holding that state may not introduce
extrinsic evidence regarding specific instances of conduct to attack witnesses'
credibility under Rule 608(B) or 613).
{23} The letters could
have been used on cross-examination to rebut the opinions of family members who
expressed a belief in the peaceful character of Defendant.
See Rule
11-405(A).
See generally 2 Jack B. Weinstein & Margaret A. Berger,
Weinstein's
Federal Evidence § 405.04[1][b] (1997) (response to opinion testimony)
[hereinafter Weinstein & Berger]. This type of cross-examination is generally
regarded as a method of testing the witness's knowledge and standards for good
reputation.
See Weinstein & Berger,
supra, § 405.03[2][a]. It
would not permit the introduction of the letters into evidence, and as we know,
these letters were actually published to the jury.
{24} The State also
argues that, unlike the accused in
Reneau, 111 N.M. at 219, 804 P.2d at
410, Defendant had already placed his character in issue by asserting a trait
for peacefulness in his opening statement.
See Rule 404(A)(1). During
opening, defense counsel described Defendant's involvement with drugs and
stated that Defendant's family would testify that "he wasn't the kind of a
person that would do this kind of thing." Given the context of this
statement, the remark may have been referring to drug use rather than the
shooting. Moreover, even as early as opening statement the damage had already
been done to Defendant when the trial court had ruled before trial that it
would admit these letters for the legally erroneous reason of proving
Defendant's violent character.
{25} The State also
argues that introduction of the letters was harmless error because they were
such a small part of the evidence against Defendant. The admission of evidence
is harmless if there is (1) substantial evidence to support the conviction
without reference to the improperly admitted evidence, (2) a disproportionate
volume of permissible evidence so that the amount of improper evidence could
not have contributed to the conviction, and (3) no substantial conflicting
evidence to discredit the State's testimony.
State v. Williams,
117 N.M.
551, 559,
874 P.2d 12, 20 (1994). We are mindful of guidance from our Supreme
Court that "error in the admission of evidence in a criminal trial must be
declared prejudicial and not harmless if there is a reasonable possibility that
the evidence complained of might have contributed to the conviction."
Clark
v. State,
112 N.M. 485, 487,
816 P.2d 1107, 1109 (1991) (citing
State v.
Trujillo,
95 N.M. 535, 541,
624 P.2d 44, 50 (1981)).
{26} The State would
have us regard these letters as merely an insignificant moment in a long
six-day trial. However, as the district attorney observed in his opening
statement, this is a case that turned on credibility. This evidence was improperly
admitted for the express purpose of portraying Defendant as a man of violent
proclivities. The jury's assessment of Defendant's credibility was crucial for
him to prevail on a claim of self-defense, and these letters could well have
undermined his credibility with the jury. Although there was ample other
evidence allegedly showing the need for money as a motive
{*267}
for the killing, and the act of killing in itself was not in dispute, there
was little or no other evidence purporting to show Defendant as a violent
character. This may have been the reason the prosecutor fought hard to
introduce such otherwise collateral evidence. Indeed, we note from the
prosecutor's final argument just how important these letters were to his case.
During his rebuttal closing, the prosecutor read again from the letters and
stated to the jury that the letter "tells us what this man was capable of
one month before he took a human life." The letter "is something that
came out of this man's mind and came out of his heart, a letter that he wrote
to [the third party] that would scare anybody."
{27} We cannot say
there was no "reasonable possibility" that these letters did not
contribute to Defendant's conviction.
Clark, 112 N.M. at 487, 816 P.2d
at 1109. Accordingly, we reverse Defendant's conviction for second degree
murder and remand for a new trial.
HARRIS L HARTZ, Chief Judge
M. CHRISTINA ARMIJO, Judge