State v. Salgado

819 P.2d 1351, 112 N.M. 793
New Mexico Court of Appeals·Decided September 26, 1991·No. 12598·Published·Cited by 13 cases

Opinions

OPINION

CHAVEZ, Judge.

Defendant appeals his convictions for aggravated assault with a deadly weapon with a firearm enhancement and two counts of aggravated battery with a firearm enhancement. He contends the trial court erred in excluding testimony concerning one victim’s predilection for violence and in refusing to give certain jury instructions. We reverse on the first issue and therefore need not address the second.

FACTS

Defendant raised the issues of self-defense and defense of others. His version of the pertinent facts, most of which were contradicted by other witnesses, is as follows. Defendant, his father, and a friend named Edwin Vigil were walking on a sidewalk. One of the victims, named Sam Romero, drove by and pulled up next to the sidewalk. A verbal argument ensued, which ended when Romero jumped the curb with his car and attempted to run over defendant’s father. After buying a six-pack of beer and consuming it with the other two men, defendant decided to go talk to Romero to determine what caused the earlier altercation. Defendant and Vigil walked to Romero’s home and entered. Vigil, who was also Romero’s neighbor, went into the kitchen and greeted Romero. Romero and Vigil then came out of the kitchen and Romero saw defendant, whereupon he turned around and re-entered the kitchen. Vigil and defendant followed. As they entered the kitchen, Romero grabbed a steak knife and took several steps toward Vigil. Defendant pulled out a gun and told Romero to drop the knife. Instead, Romero took another step toward Vigil with knife in hand. Defendant then shot Romero, shot a man who had been sitting in a chair near defendant but had jumped up at the first shot, and shot at another man who also jumped. Defendant and Vigil then hurriedly exited the house.

At trial, defendant attempted to testify about Romero’s reputation in the community for violence. He testified on direct examination that he knew Romero for maybe three years. The state objected, arguing in essence that defendant could not himself testify about Romero’s reputation, but had to bring in another witness to do so. Defense counsel responded by contending that defendant’s knowledge of Romero’s violent character explained why defendant had reacted with such force to Romero’s actions in the house. Counsel argued that defendant had heard that Romero would threaten to shoot young men who were dating his daughters, and had bragged about wearing a chain of people’s ears around his neck when he was in Vietnam. The court ruled that the evidence was hearsay and refused to allow the questioning. Defendant then made an offer of proof in which he testified that Romero's reputation in the community for violence was “bad.” The basis for defendant’s view of Romero’s reputation was his knowledge of Romero’s alleged actions in Vietnam, cutting off people’s ears and wearing them around his neck, and his alleged statements that he “had a bullet” for anybody involved in disputes about his daughters. Following the offer of proof the trial court reiterated its ruling.

DISCUSSION

Defendant’s proffered testimony consisted of two types of testimony, general testimony about Romero’s reputation for violence, and evidence of specific instances of conduct that gave rise to the asserted reputation. See SCRA 1986, 11-405(A) (reputation evidence) and (B) (specific conduct). We must decide whether the trial court abused its discretion in excluding this evidence. See State v. Ewing, 97 N.M. 235, 638 P.2d 1080 (1982) (admission of character testimony is a matter within the sound discretion of the trial court). Under the circumstances of this case, we hold that the reputation evidence and the Vietnam conduct evidence was of such importance to defendant’s defense that the exclusion was an abuse of discretion. See State v. Duncan, 111 N.M. 354, 805 P.2d 621 (1991) (evidence of coercer’s character was so important to defendant’s duress defense that it was an abuse of discretion to exclude it). We need not address the testimony concerning Romero’s alleged threats against his daughters’ boyfriends, although we are inclined to agree with the state that this testimony was vague and not as probative of character as actual actions, and the exclusion of the testimony therefore was not an abuse of discretion.

In self-defense or defense-of-others cases, evidence of the victim’s character may be admissible to show either defendant’s reasonable fear and response under the circumstances, or that the victim was the aggressor. Cf State v. Montoya, 95 N.M. 433, 622 P.2d 1053 (Ct.App.1981). The victim’s reputation for violence and any prior violent acts committed by the victim are relevant to both issues. State v. Melendez, 97 N.M. 740, 643 P.2d 609 (Ct.App.1981), rev’d on other grounds, 97 N.M. 738, 643 P.2d 607 (1982) (tendered evidence of victim’s reputation for violence was relevant to defendant’s claims that occupants of a car were aggressors and that he had reasonable apprehensions for his life and safety). Contrary to the trial court’s ruling, the hearsay rule is no bar to the introduction of such testimony, at least where, as here, the testimony is offered not for the truth of the matter asserted, but to show defendant’s state of mind. See SCRA 1986, 11-801(C); see also 2 J. Weinstein & M. Berger, Weinstein’s Evidence § 405[2] (1990) (reputation evidence is admissible despite the hearsay rule).

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State v. Salgado, 819 P.2d 1351, 112 N.M. 793 (N.M. Ct. App. 1991).

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