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Jim v. Budd6/9/1987
switch to release Mr. Jim from the gates of the trailer. Mr. Jim died from his injuries shortly thereafter without recounting any of the events to anyone.
Discussion
a. Hearsay Issue
Plaintiff tried vigorously before and during the trial to exclude communications allegedly made by Mr. Jim to defendant just prior to the accident. She argues that the communications were hearsay and did not fall within any of the exceptions of N.M.S.A. 1978, Evid.R. 803 or 804 (Repl.Pamp.1983). She claims that even if the hearsay rule did not apply, or if the communications fell within Rules 803(24) or 804(b)(6), the trial court committed reversible error by not excluding them under considerations of N.M.S.A. 1978, Evid.R. 403 (Repl.Pamp.1983). Finally, plaintiff argues that, at the very least, she should have been granted a limiting instruction both at the time the statements were admitted into evidence and at the conclusion of trial with the other jury instructions. The trial court stood firm in its belief that the communications were not hearsay. We agree.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.M.S.A. 1978, Evid.R. 801(c) (Repl.Pamp.1983). "Statement" is defined as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion." Evid.R. 801(a) (emphasis added). By definition, then, statements or conduct which are non-assertive are not hearsay.
But what of utterances from which assertions may be implied from the words and conduct of the declarant? As applied to this case, the directions given by Mr. Jim to defendant to "' et the gates down against the chain'", and decedent's positive response when asked by defendant if what he had done was satisfactory, were not offered for the truth of the words uttered, as they have no particular relevance. Rather, they were offered to show Mr. Jim in control of the procedure and that he knew what he was doing. While earlier cases held similar utterances inadmissible, the modern trend is to admit them. See generally 4 Weinstein's Evidence, para. 801(a) , , at 801-53 to -66; E. Cleary, McCormick on Evidence, ยง 250 (3rd ed. 1984). Compare Wright v. Tatham, 5 Cl. & Fin. 670, 7 Eng. Rep. 559 (H.L.1838) (letters offered only to prove the competence of the testator, that is, the truth of the implied statements within the letters, were mere statements or opinions of the writers and were not admissible under the hearsay rule); Diaz v. Southeastern Drilling Corp. of Argentina, 449 F.2d 258 (5th Cir.1971) (inquiry by unavailable declarant whether someone had left money for him held inadmissible as evidence when the only possible purpose for the testimony was to plant suspicion that a bribe had occurred); with United States v. Zenni, 492 F. Supp. 464 (E.D.Ky.1980) (statements by unknown callers who gave directions for placing bets to authorities who were searching defendant's premises were admissible to support the inference that bets could be placed at the telephone being called); State v. Izzo, 94 Ariz. 226, 383 P.2d 116 (1963) (en banc) (evidence properly admitted that wife did not return home the night before her murder to prove her fear of the accused husband).
Under Fed.R.Evid.Rule 801, after which the New Mexico rule is patterned, implied assertions are not hearsay. United States v. Zenni; Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1190 (E.D.Pa.1980). We agree with the modern trend of decisions which reject the notion that implied assertions fall under the ambit of the hearsay rule. See McCormick on Evidence,
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