March 10, 2020- State of New Mexico v. John Luttrell, No. A-1-CA-36831

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-36831	4
JOHN LUTTRELL,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY	7
Mark T. Sanchez, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
C. David Henderson, Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
IVES, Judge.	18
{1} 	Defendant John Luttrell appeals his conviction, following a jury trial, for child	19
abuse contrary to NMSA 1978, Section 30-6-1(D) (2009). Defendant argues: (1) the	20
district court erred in admitting statements made by Crystal Luttrell because (a) the	21
Court of Appeals of New Mexico
Filed 3/10/2020 10:02 AM

2
statements were not admissible under the excited utterance doctrine, and 	(b)	1
admission of the statements violated the Confrontation Clause; (2) Defendant was	2
denied a fair trial, and a mistrial should have been granted based on the prosecutor’s	3
comments, in the presence of the jury, that Crystal’s testimony was not credible; and	4
(3) the failure to instruct the jury that Defendant had no duty to retreat before	5
defending himself constituted fundamental error. We affirm.	6
DISCUSSION1
7
I. 	The Admission of Crystal’s Statements to Officer Brooks	8
A. 	Excited Utterance	9
{2} 	Defendant argues the district court should not have admitted as excited	10
utterances 	Crystal’s 	out-of-court 	statements 	to 	Officer 	Brooks 	that 	she 	and	11
Defendant got into a fight when Defendant took away her prescription medicine.	12
Specifically, Defendant claims that because such statements were not spontaneous—	13
but were rather elicited by Officer Brooks—they did not meet the standard for the	14
excited utterance exception to the hearsay rule. In addition, Defendant asserts the	15
statements were not excited utterances because they were made around ten minutes	16
after the 911 call, which gave Crystal time to reflect and fabricate.	17
1 Because 	the 	parties 	are 	familiar 	with 	the 	factual 	background, 	this
memorandum opinion does not include a background section. We describe the
pertinent facts in the discussion section.

3
{3} 	Rule 11-803(2) NMRA provides that “[a] statement relating to a startling	1
event or condition, made while the declarant was under the stress or excitement that	2
it 	caused” 	is 	not 	excluded 	by 	the 	rule 	against 	hearsay. 	“[T]o 	constitute	3
an excited utterance, the declaration should be spontaneous, made before there is	4
time for fabrication, and made under the stress of the moment.” State v. Flores, 2010-	5
NMSC-002, ¶ 47, 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citation	6
omitted); see State v. Balderama, 2004-NMSC-008, ¶ 51, 135 N.M. 329, 88 P.3d	7
845 (listing several factors for the district court to consider in determining whether	8
a statement qualifies as an excited utterance, such as the amount of time that has	9
passed since the startling event, whether the declarant had an opportunity for	10
reflection, whether the statement was self-serving, whether the statement was in	11
response to an inquiry, and the amount of “pain, confusion, nervousness, or	12
emotional strife the declarant was experiencing at the time of the statement” (internal	13
quotation marks and citation omitted)). “Determination of the admissibility of	14
statements as excited utterances is a matter within the sound discretion of the	15
[district] court, and will not be overturned in the absence of clear abuse.” State v.	16
Martinez, 1982-NMCA-137, ¶ 14, 99 N.M. 48, 653 P.2d 879.	17
{4} 	Testimony at trial established that shortly before Crystal’s conversation with	18
Officer Brooks, Crystal witnessed her twelve-year-old son (Defendant’s stepson)	19
and Defendant (her husband) fighting—an altercation that included their struggling	20

4
over a BB gun. Defendant contends on appeal that Crystal became upset during the	1
struggle, jumped on Defendant’s back, and demanded that he leave. In addition, at	2
some point during the incident Defendant may have struck, or run over, Crystal’s	3
foot with his car. Officer Brooks testified that she arrived at the home around five to	4
ten minutes after Defendant left. Officer Brooks described Crystal as overwhelmed,	5
crying, bleeding from her foot, having gone through a traumatic situation, and	6
depressed or dumbfounded. In claiming that Crystal’s statements to Officer Brooks	7
while in this condition cannot qualify as excited utterances, Defendant argues that	8
the ten-minute period before the officer arrived suggests she had time for reflection,	9
thus “rais[ing] the danger of fabrication.” Moreover, Defendant points out that	10
Crystal’s statements were made in response to Officer Brooks’ inquiries rather than	11
spontaneously.	12
{5} 	While Balderama instructs the district court to consider both of those factors	13
in 	determining 	whether 	the 	statements 	qualify 	as 	excited 	utterances, 	the	14
circumstances in this case are substantially similar to State v. Hernandez, where we	15
upheld admission of statements to police as excited utterances. 1999-NMCA-105,	16
¶ 15, 127 N.M. 769, 987 P.2d 1156 (noting that the declarant’s statements were made	17
in response to the responding police officer’s questions twenty to thirty minutes after	18
an incident where “she was awakened at dawn by [the d]efendant’s breaking into her	19
home, she had been assaulted and physically injured, she was still ‘extremely upset’	20

5
and ‘real excited’ when the police arrived, and at least one of her children was also	1
upset”). We stated that “[u]nder certain circumstances, it is reasonable to believe that	2
an individual could be speaking under the stress of a traumatic event twenty minutes	3
after that event. Although the fact that the statements were made to police can also	4
undermine their spontaneity, the mere fact that the statements were responses to	5
questions does not necessarily defeat a finding that they were excited utterances.”	6
Id.	7
{6} 	Because this case is substantially similar to Hernandez, the same conclusion	8
is warranted here—that is, “[w]hile these circumstances did not necessitate a finding	9
of excited utterance, they were sufficient to support such a finding and are therefore	10
sufficient for us to uphold the trial court’s exercise of its broad discretion.” 1999-	11
NMCA-105, ¶ 15. In this case, we will not substitute our judgment for that of the	12
district court as to that court’s evidentiary rulings simply because a conflicting	13
determination of admissibility is possible, and similarly conclude that the district	14
court did not abuse its discretion in admitting Crystal’s statements as excited	15
utterances. See State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829	16
(“We cannot say the [district] court abused its discretion by its ruling unless we can	17
characterize it as clearly untenable or not justified by reason.” (internal quotation	18
marks and citation omitted)).	19

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B. 	Right to Confrontation	1
{7} 	Defendant also argues that admission of Crystal’s statements violated the	2
Confrontation Clause of the Sixth Amendment to the United States Constitution.	3
“The Confrontation Clause guarantees the accused in a criminal trial the right to be	4
confronted with the witnesses against him[.]” State v. Mendez, 2010-NMSC-044,	5
¶ 28, 148 N.M. 761, 242 P.3d 328 (internal quotation marks and citation omitted).	6
“Under the Confrontation Clause, an out-of-court statement that is both testimonial	7
and offered to prove the truth of the matter asserted may not be admitted unless the	8
declarant is unavailable and the defendant had a prior opportunity to cross-examine	9
the declarant.” State v. Smith, 2016-NMSC-007, ¶ 42, 367 P.3d 420 (internal	10
quotation marks and citations omitted). “We review de novo a challenge made	11
pursuant to the Confrontation Clause.” State v. Gallegos, 2016-NMCA-076, ¶ 44,	12
387 P.3d 296. Although Crystal testified at trial, Defendant has not cited any	13
authority suggesting a defendant’s right to confront a witness is violated when the	14
witness testifies at trial, and Defendant has not explained why we should find such	15
a violation here. See State v. Duttle, 2017-NMCA-001, ¶ 15, 387 P.3d 885 (“For this	16
Court to rule on an inadequately briefed constitutional issue would essentially	17
require it to do the work on behalf of Defendant.”). Because Defendant had the	18
opportunity to question Crystal at trial, we see no violation of Defendant’s right to	19
confront 	Crystal 	about 	any out-of-court 	statements 	she 	made, 	even 	if those	20

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statements were testimonial, as Defendant claims. See State v. Aragon, 2010-NMSC-	1
008, ¶ 6, 147 N.M. 474, 225 P.3d 1280 (“[W]hen the declarant appears for cross-	2
examination at trial, the Confrontation Clause places no constraints at all on the use	3
of [her] prior testimonial statements. The Clause does not bar admission of a	4
statement so long as the declarant is present at trial to defend or explain it.”	5
(omission, internal quotation marks, and citation omitted)), overruled on other	6
grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.	7
II. 	Prosecutor’s Remarks Concerning Witness Testimony	8
{8} 	Defendant asserts the district court erred in refusing his request for a mistrial	9
or 	alternatively 	admonishing 	the 	prosecutor 	or 	giving 	a 	curative 	instruction	10
following the prosecutor’s remarks regarding Crystal’s testimony. Specifically,	11
Defendant argues he was denied a fair trial because the prosecutor requested, in the	12
presence of the jury, that the district court instruct the jury to disregard Crystal’s	13
testimony because she was not a reliable witness. 2 Following the prosecutor’s	14
request, the district court briefly excused the jury and held a bench conference.	15
Defendant moved for a mistrial on the basis that the prosecutor’s comments tainted	16
the jury. The district court denied both the State’s request to speak to the jury	17
2 Although Defendant initially stated that the prosecutor asked the district
court—in the presence of the jury—to find Crystal’s testimony non-credible “as a
matter of law,” our review of the proceedings reveals that the prosecutor made that
particular statement outside of the jury’s presence in response to a question from the
district court. We limit our analysis to what was said in the jury’s presence.

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regarding the credibility of Crystal’s testimony and Defendant’s motion for a	1
mistrial.	2
{9} 	When Defendant moved for a mistrial, he bore the burden of “show[ing] that	3
the error committed constituted legal error, and the error was so substantial as to	4
require a new trial.” Smith, 2016-NMSC-007, ¶ 69. We will reverse the denial of a	5
mistrial only if we conclude that the district court abused its discretion. See State v.	6
Fry, 2006-NMSC-001, ¶ 52, 138 N.M. 700, 126 P.3d 516. To the extent Defendant	7
argues the prosecutor engaged in misconduct, our task is to determine “whether the	8
trial court abused its discretion by denying a motion for a new trial based upon the	9
prosecutor’s conduct, by overruling the defendant’s objection to the challenged	10
conduct, or by otherwise failing to control the conduct of counsel during trial.” State	11
v. Duffy, 1998-NMSC-014, ¶ 46, 126 N.M. 132, 967 P.2d 807, overruled on other	12
grounds by Tollardo, 2012-NMSC-008, ¶ 37 n.6. The ultimate question is whether	13
any “improprieties had such a persuasive and prejudicial effect on the jury’s verdict	14
that the defendant was deprived of a fair trial.” Id.	15
{10} 	Defendant argues that the prosecutor’s comments about Crystal’s credibility	16
in front of the jury amounted to improper “vouching” that was so prejudicial that it	17
warrants reversal. We disagree. Vouching generally “involves either invoking the	18
authority and prestige of the prosecutor’s office or suggesting the prosecutor’s	19
special knowledge.” State v. Paiz, 2006-NMCA-144, ¶ 55, 140 N.M. 815, 149 P.3d	20

9
579 (internal quotation marks and citation omitted). Before the prosecutor asked the	1
district court to instruct the jury to disregard Crystal’s testimony, Crystal had just	2
stated that she probably had hallucinations on the night in question, due to her	3
medication. Additionally, Crystal testified that her prior statement to Officer Brooks	4
was inaccurate because Officer Brooks coached her. The context establishes that the	5
prosecutor’s comments concerning Crystal’s lack of reliability were based on the	6
trial evidence, rather than personal opinions unrelated to such evidence. Cf. State v.	7
Dominguez, 2014-NMCA-064, ¶ 23, 327 P.3d 1092 (explaining that, during closing	8
arguments, “[p]rosecutors are permitted to comment on the veracity of witnesses so	9
long as the statements are based on the evidence—not personal opinion—and are	10
not intended to incite the passion of the jury”). Under the circumstances, we	11
conclude the district court did not abuse its discretion by denying Defendant’s	12
motion for a mistrial.	13
{11} 	Even assuming for the sake of discussion that the prosecutor was vouching,	14
reversal would only be warranted if we were to conclude that the vouching was so	15
prejudicial that it deprived Defendant of a fair trial, but Defendant has not explained	16
why we should reach that conclusion. Cf. State v. Allen, 2000-NMSC-002, ¶ 102,	17
128 N.M. 482, 994 P.2d 728 (“While we agree with the general rule that it is	18
improper for prosecutors to vouch for their cases, . . . we are not persuaded that the	19
prosecutor’s remarks in this case, when taken in context, were the kind of vouching	20

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that is prejudicial enough to deprive [the d]efendant of a fair trial.” (citation	1
omitted)). We will not make this argument for him. See Elane Photography, LLC v.	2
Willock, 	2013-NMSC-040, 	¶ 70, 	309 	P.3d 	53 	(“requir[ing] 	that 	the 	parties	3
adequately brief all appellate issues” and providing that “[t]o rule on an inadequately	4
briefed issue, [we] would have to develop the arguments [ourselves], effectively	5
performing the parties’ work for them”).	6
{12} 	We find no merit in Defendant’s remaining contentions. Defendant has not	7
developed his argument that the failure to admonish the prosecutor was error, much	8
less fundamental or plain error, and we therefore decline to review it. And Defendant	9
has neither preserved nor developed an argument regarding the absence of a curative	10
instruction. “It is the duty of the complaining party to request a curative instruction.”	11
State v. Collins, 2005-NMCA-044, ¶ 41, 137 N.M. 353, 110 P.3d 1090, overruled	12
on other grounds by State v. Willie, 2009-NMSC-037, ¶ 18, 146 N.M. 481, 212 P.3d	13
369. Because Defendant did not fulfill that duty, we conclude that he failed to	14
preserve this issue. And because Defendant has not asked us to review this	15
unpreserved issue under a plain error or fundamental error standard, much less	16
developed an argument under one of those standards, we will not perform any such	17
analysis. Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339,	18
110 P.3d 1076 (“We will not review unclear arguments, or guess at what [a party’s]	19
arguments might be.”).	20

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III. 	Jury Instructions	1
{13} 	Defendant’s final argument is that fundamental error occurred when the	2
district court failed to instruct the jury that Defendant was not required to retreat	3
before defending himself. Specifically, Defendant asserts that the jury should have	4
received an instruction based on UJI 14-5190 NMRA (2016),3 which provides that	5
a person who is defending himself or herself from an attack need not retreat.	6
Defendant argues an evidentiary basis was laid for this instruction because although	7
he was the subject of a no-trespass order on Crystal’s property, there was also	8
testimony that Crystal invited Defendant to the home that evening, and thus there	9
was a question of whether Defendant acted reasonably, which included a question	10
about whether he had a right to be where he was. The State claims defense counsel	11
never requested an instruction based on UJI 14-5190 and that Defendant’s theory of	12
the case was not that he had no duty to retreat. Contrary to how this issue is described	13
in the parties’ briefs, Defendant did request an instruction based on UJI 14-5190, the	14
State did not object, and the district court did read such an instruction to the jury	15
along with the other instructions. Accordingly, Defendant’s reliance on State v.	16
Anderson, 2016-NMCA-007, 364 P.3d 306 	is misplaced. We therefore reject	17
Defendant’s fundamental error argument.4
18
3 All references to UJI 14-5190 are to the 2016 version.
4 A written version of the instruction at issue, instruction number six, is
missing from the record proper, and it is unclear whether a written version went to

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CONCLUSION	1
{14} 	We affirm.	2
{15} 	IT IS SO ORDERED.	3
__________________________________	4
ZACHARY A. IVES, Judge	5
6
WE CONCUR:	7
_________________________________	8
J. MILES HANISEE, Chief Judge	9
_________________________________	10
MEGAN P. DUFFY, Judge	11
the jury room. See Rule 5-608(E) NMRA (“Written instructions of the court shall go
to the jury room[.]”). However, because Defendant does not assert any error, much
less prejudicial error, based on a claim that the jury never received a written
instruction, we do not address the issue. See Elane Photography, 2013-NMSC-040,
¶ 70.