State v. Marquez

1998 NMCA 010, 951 P.2d 1070, 124 N.M. 409
CourtNew Mexico Court of Appeals
DecidedNovember 20, 1997
Docket18073
StatusPublished
Cited by52 cases

This text of 1998 NMCA 010 (State v. Marquez) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Marquez, 1998 NMCA 010, 951 P.2d 1070, 124 N.M. 409 (N.M. Ct. App. 1997).

Opinion

OPINION

FLORES, Judge.

1. Defendant was convicted by a jury of two counts of criminal sexual penetration of a minor, one count of kidnapping, and one count of intimidation of a witness. Defendant appeals from the trial court’s judgment and sentence. On appeal, Defendant contends that the trial court deprived him of a fair trial by allowing the 12-year old child Victim to testify holding a teddy bear. Additionally, he contends that he was denied his defense when the court allowed an amendment to the indictment which changed the year of the alleged crime from 1992 to 1993, and when the trial court disallowed testimony from a witness to the effect that Victim’s mother frequently asked Defendant for money. We affirm.

FACTS

2. The events leading up to Defendant’s convictions were alleged to have taken place on June 23, 1992. Victim was then nine years old and knew Defendant because he was her aunt’s boyfriend. Victim testified that she saw Defendant and asked him for a ride to her grandmother’s home, then church. Victim stated that Defendant agreed, but instead drove Victim for a Coke, to his home, then down a dirt road. He allegedly then took off her clothes, hit her, raped and sodomized her. Victim stated that Defendant threatened to have his cousins kill her parents if she told anyone. Victim did not tell anyone about the incident for over two years. She finally told her aunt, resulting in an indictment against Defendant.

DISCUSSION

Use of a Teddy Bear

3. Defendant claims that the 12-year old Victim’s testimony while holding a white teddy bear, approximately 12 by 18 inches in size, was prejudicial and deprived him of a fair trial. He claims the use of the teddy bear created a prejudicial impact making Victim appear more vulnerable and more appealing as a child than she already was.

4. Initially we note that while no specific rule addresses this particular situation directly, our rules of criminal procedure do address situations where a child witness may be too apprehensive to testify. See Rule 5-504, NMRA 1997. Rule 5-504(A) allows for the use of videotape testimony upon a “showing that the child may be unable to testify without suffering unreasonable and unnecessary mental or emotional harm.” The trial court must make the requisite findings that the individualized harm to a child victim outweighs defendant’s right to a face-to-face confrontation with his accusers. See State v. Fairweather, 116 N.M. 456, 463, 863 P.2d 1077, 1084 (1993) (“The reason that a trial judge is required to make individualized findings justifying a deviation from the standard trial procedure of face-to-face confrontation in front of the jury is so that an appellate court may review those findings in determining whether the trial court properly balanced the defendant’s Sixth Amendment right and the special need for protection of the child witness.”); see also State v. Benny E., 110 N.M. 237, 240-42, 794 P.2d 380, 383-85 (Ct.App.1990) (use of video monitor and testimony in judge’s chambers invalid because particularized findings of special harm were not supported by substantial evidence).

5. In addition, trial courts are allowed latitude in exercising “reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, ... and (3) protect witnesses from harassment or undue embarrassment.” Rule 11-611(A), NMRA 1997. The exercise of the trial court’s authority under Rule 11-611 is reviewed for an abuse of discretion. See State v. Smith, 92 N.M. 533, 539, 591 P.2d 664, 670 (1979).

6. Other jurisdictions have addressed the issue of allowing child victims comfort items or other comfort measures to facilitate testimony. In State v. Palabay, 9 Haw.App. 414, 844 P.2d 1 (1992), the appellate court held it was error to allow a 12-year old witness to testify holding a teddy bear, absent the finding of necessity. Id., 844 P.2d at 5-7. The child witness began testifying with the teddy bear, unnoticed by defense counsel. Id. at 5. When the witness was asked to walk over to an exhibit board, defense counsel noticed the teddy bear and objected. Id. The trial court overruled defendant’s first objection, but sustained a later objection to the presence of the teddy bear. Id. While the trial court was in error because it had not made findings of necessity, the appellate court held the error was harmless and affirmed the conviction. Id. at 10-11.

7. In State v. Cliff, 116 Idaho 921, 782 P.2d 44 (Idaho.Ct.App.1989), the Idaho Court of Appeals refused to disturb the trial court’s ruling that allowing an eight-year old child victim to testify while holding a doll would have a calming effect on the child and that the benefit of having coherent testimony from the child outweighed any possible prejudice to defendant. Id., 782 P.2d at 46-47. The trial court heard testimony from the guardian ad litem that the child victim had started to have dry heaves while on the stand during the preliminary hearing; that the child tended to “wring her hands, put her hands on her face and chew her nails” when she was upset. Id. at 46. The guardian ad litem stated that in his opinion giving the child a doll would give her something to do with her hands. Id. The appellate court stated that the trial court made an appropriate decision in achieving “a balance between the defendant’s right to a fair trial and the witness’s need” for a calming environment. Id. at 47. Additionally, the trial court “felt that allowing the child to possess a doll on the stand was a less stringent measure than some that had been accepted by the United States Supreme Court, or required by some state statutes.” Id. (citation omitted).

8. In People v. Gutkaiss, 206 A.D.2d 628, 614 N.Y.S.2d 599 (1994), the appellate court found no error in allowing the child victim to hold a teddy bear while testifying because of an executive law providing for trial courts to be sensitive to the needs of children testifying and because the court gave a jury instruction to disregard the bear. New York Executive Law Section 642-a(4) directs the judge presiding at a sexual abuse trial involving a child to “be sensitive to the psychological and emotional stress a child witness may undergo when testifying.” Id., 614 N.Y.S.2d at 602. Section 642-a of the New York Executive Laws, entitled “Guidelines for fair treatment of child victims as witnesses”, directs courts and counsel to take steps to minimize the impact of court proceedings on child victim witnesses. N.Y. Exec. Law § 642-a (Consol.1997). Various provisions address the use of closed-circuit televisions, support persons, as well as guidelines for judicial sensitivity, suggested use of the same prosecutor, and recommendations to minimize the number of times the child must recite the events of the ease. Id.

9.

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Bluebook (online)
1998 NMCA 010, 951 P.2d 1070, 124 N.M. 409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marquez-nmctapp-1997.