 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3         Plaintiff-Appellee,

 4 v.                                                                       NO. 27,667

 5 DARYL HARVEY WILLIAMS,

 6         Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Thomas J. Hynes, District Judge

 9   Gary King, Attorney General
10   Santa Fe, NM
11   Joel Jacobsen, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14 Hugh W. Dangler, Chief Public Defender
15 Karl Erich Martell, Assistant Appellate Defender
16 Santa Fe, NM

17 for Appellant

18                               MEMORANDUM OPINION

19 VANZI, Judge.

20         Defendant appeals his convictions for voluntary manslaughter and aggravated

21 assault with a deadly weapon. On appeal, Defendant challenges the trial court’s ruling

22 to exclude evidence of Jeremiah Nelson’s (Victim) criminal record through the
 1 testimony of Victim’s sister, Amanda Jackson (Jackson), whose testimony Defendant

 2 argues is relevant to his theory of self-defense. For the reasons that follow, we affirm.

 3 I.     BACKGROUND

 4        As a consequence of events occurring in the early morning hours of July 14,

 5 2006, Defendant was charged with murder in the second degree, conspiracy to commit

 6 assault with intent to commit a violent felony, two counts of assault with intent to

 7 commit a violent felony, aggravated battery with a deadly weapon, and tampering with

 8 evidence. Following a jury trial, Defendant was convicted of the lesser included

 9 offense of voluntary manslaughter and aggravated assault with a deadly weapon.

10        The underlying facts are not in dispute. Defendant stabbed Victim several times

11 with a knife after Victim threatened Defendant and his co-defendant, Daryl Begaye,

12 with a sawed-off shotgun. Victim ultimately died from the wounds inflicted by

13 Defendant. At trial, Defendant argued that his actions were in self-defense and that

14 he was trying to protect his co-defendant.

15        The State’s first witness at trial was Jackson. Jackson testified that she had

16 been “hanging out” with Victim and others that evening and was a witness to the

17 stabbing. On cross examination, Defendant’s first question to Jackson was, “Ms.

18 Jackson, [Victim] has a prior felony conviction for aggravated battery . . .” Before the

19 question was fully articulated, the State objected arguing that Defendant had not laid



                                               2
 1 the proper foundation for such a question and that there were limits with regard to

 2 how evidence of Victim’s criminal history could be introduced, given that Defendant

 3 intended to proceed on the theory of self-defense. Specifically, the State argued that

 4        if they’re doing a self-defense argument, they could let it in with respect
 5        to what [Defendant] knew of [Victim’s] prior felonies, as to whether or
 6        not it created a sense of fear in [Defendant’s] mind[], and not whether or
 7        not he was acting in conformity. I mean, (inaudible) prior felonies, we
 8        don’t want to show conformity, we want to show whether or not
 9        [Defendant] knew of these felonies, whether or not (inaudible) have a
10        fear to act the way they act. [Jackson] is not the person to get these
11        felonies in.

12 The trial court sustained the State’s objection, noting that this particular line of

13 questioning was “premature” and inadmissible through this witness. The judge stated,

14 however, that he would consider taking judicial notice of Victim’s prior criminal

15 convictions if defense counsel laid the appropriate foundation to permit him to do so.

16        Toward the end of the trial, Defendant testified. Defendant described specific

17 events illustrating Victim’s propensity for violence and the regularity with which

18 Victim carried guns. He also testified that he was afraid of Victim that night because

19 he had been told that Victim had guns and a “Rambo knife.” However, Defendant

20 was never asked and never testified about his knowledge of Victim’s prior criminal

21 convictions or any discussions he had with Jackson about those convictions. On

22 appeal, Defendant concedes that he was not “prevented from discussing [his]

23 knowledge of [Victim’s] criminal record” at trial.

                                              3
 1 II.    DISCUSSION

 2        The sole issue on appeal is whether the trial court abused its discretion by not

 3 permitting defense counsel to introduce evidence of Victim’s prior criminal

 4 convictions through the testimony of Jackson.         Defendant argues that “[h]ad

 5 [Defendant] been able to present evidence of [Victim’s] violent firearms felonies

 6 through [Jackson], [it] would have helped demonstrate [Defendant’s] apprehension

 7 of [Victim], an element of [Defendant’s] self-defense claim.” “[W]e review a trial

 8 court’s admission or exclusion of evidence for abuse of discretion.” State v.

 9 Armendariz, 2006-NMSC-036, ¶ 6,140 N.M. 182, 141 P.3d 526.

10        Defendant sought to introduce specific instances of Victim’s prior criminal

11 convictions through the testimony of Jackson in order to show that Victim was a

12 violent person and to substantiate Defendant’s self-defense claim. When a defendant

13 is claiming self-defense, his apprehension of the victim is an essential element of the

14 claim. Thus, admissibility of Victim’s prior criminal record was sought on the basis

15 of Rule 11-405(B) NMRA, which provides: “In cases in which character or a trait of

16 character of a person is an essential element of a charge, claim or defense, proof may

17 also be made of specific instances of that person’s conduct.” Rule 11-405 creates an

18 exception to the general rule that only reputation or opinion testimony is permitted to

19 prove a character trait. The application of Rule 11-405(B) has been discussed in detail



                                              4
 1 by our Supreme Court in Armendariz, which the parties agree to be controlling in this

 2 case. Armendariz, 2006-NMSC-036.

 3        In Armendariz, the defendant argued that he should have been allowed to

 4 demonstrate that the victim had a propensity for violence and aggression because such

 5 testimony was relevant to his defense that the victim was the first aggressor.

 6 Specifically, the defendant sought to introduce evidence of specific instances of the

 7 victim’s violent conduct— two acts of domestic violence— through the testimony of

 8 the victim’s widow. Armendariz, 2006-NMSC-036, ¶¶ 6-8. The trial court upheld the

 9 state’s objection and our Supreme Court affirmed. Id. ¶ 30. The Court addressed and

10 clarified that under Rule 11-405(B), evidence of specific instances of a victim’s prior

11 violent conduct may not be admitted to show that the victim was the first aggressor

12 when the defendant is claiming self-defense. Armendariz, 2006-NMSC-036, ¶ 17.

13 In discussing Rule 11-405(B), the Court noted that the New Mexico Rules of

14 Evidence “only allow evidence of specific instances of a person’s conduct when the

15 character or character trait of that person is an essential element of a charge, claim, or

16 defense.” Armendariz, 2006-NMSC-036, ¶ 17. “When a defendant is claiming

17 self-defense,” the Court stated, “his or her apprehension of the victim is an essential

18 element of his or her claim.” Id. Accordingly, the Court held that “under Rule

19 11-405(B), evidence of specific instances of the victim’s prior violent conduct of



                                               5
 1 which the defendant was aware may be admitted to show the defendant’s fear of the

 2 victim.” Armendariz, 2006-NMSC-036, ¶ 17 (emphasis added). Our Supreme Court

 3 upheld the trial court’s exclusion of the evidence of specific instances of prior

 4 domestic violence between the victim and his wife under Rule 11-405(B). In doing

 5 so, it determined that only reputation or opinion evidence about the victim could be

 6 admitted to show that the victim was the first aggressor. Armendariz, 2006-NMSC-

 7 036, ¶ 17.

 8        Armendariz is also on point in the present case. In this case, Defendant claims

 9 that he should have been allowed to show Victim’s prior criminal convictions through

10 the testimony of Jackson in order to demonstrate his fear of Victim and establish his

11 self-defense claim. However, as the State argues, Defendant failed to lay a proper

12 foundation regarding how Jackson’s knowledge of Victim’s prior criminal record

13 related to Defendant’s own awareness of those convictions. Although the trial court

14 sustained the State’s objection based on lack of foundation, it did not foreclose

15 Defendant from recalling Jackson once it was established that Defendant knew of

16 Victim’s criminal record. For reasons unknown, Defendant chose not to lay the

17 necessary foundation. Our review of the record reveals that Defendant never made

18 another attempt to elicit testimony about Victim’s prior criminal record through any

19 witness, including Jackson.



                                             6
 1        Defendant failed to provide any evidence establishing his own knowledge of

 2 Victim’s prior criminal record. Jackson’s testimony about Victim’s convictions was

 3 therefore impermissible under Rule 11-405(B) and for the reasons stated in

 4 Armendariz, 2006-NMSC-036, ¶¶ 17-18. Accordingly, we conclude that the trial

 5 court did not abuse its discretion.

 6 III.   CONCLUSION

 7        Defendant’s conviction is affirmed.

 8        IT IS SO ORDERED.



 9                                                   ___________________________
10                                                   LINDA M. VANZI, Judge




11 WE CONCUR:



12 ______________________________________
13 MICHAEL D. BUSTAMANTE, Judge




                                            7
1 ______________________________________
2 TIMOTHY L. GARCIA, Judge




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