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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 32,974
5 HOMER ASHLEY,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 8 Stephen K. Quinn, District Judge
9 Hector H. Balderas, Attorney General 10 Paula E. Ganz, Assistant Attorney General 11 Santa Fe, NM
12 for Appellee
13 Jorge A. Alvarado, Chief Public Defender 14 Allison H. Jaramillo, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 ZAMORA, Judge. 1 {1} Homer Ashley (Defendant) appeals his convictions for one count of aggravated
2 driving while under the influence of intoxicating liquor (DWI) and two counts of
3 failure to obey traffic control devices. On appeal, Defendant argues that his right to
4 a fair and impartial jury as well as his right to due process were violated when the
5 district court denied his motion for a continuance, thereby requiring him to select a
6 jury from an improperly empaneled jury pool. Defendant further argues that the
7 district court erred in the denial of his motion for recusal and motion for a mistrial,
8 after a series of compounding errors related to the randomization of the jury panels
9 violated his right to a fair trial and due process. Finally, Defendant argues that the
10 district court erred in denying his motion for a mistrial based on prejudicial comments
11 made during voir dire. We affirm.
12 BACKGROUND
13 {2} Defendant was arrested in Curry County and charged with aggravated DWI,
14 failure to obey traffic devices, and other misdemeanor traffic offenses. Defendant’s
15 trial was set for November 9, 2012, in the district court. As of October 2012, the Curry
16 County jury pool was subdivided into five jury panels. In an effort to minimize the
17 cost of court interpreters, the court clerk assigned all potential jurors that spoke only
18 Spanish and needed an interpreter for one jury panel, instead of randomly distributing
19 them among the five jury panels.
2 1 {3} When Defendant learned that this had occurred, he moved to continue his trial
2 until there was a new panel from which a jury could be selected. The district court
3 heard arguments on the motion on October 25, 2012. At that hearing, court personnel
4 testified that an attempt had been made to re-randomize the panels and that the
5 Spanish-only speakers had been re-distributed among the five jury panels. Three of
6 the five panels each included one Spanish-only speaker, and the other two panels each
7 included two Spanish-only speakers.
8 {4} Defendant argued that despite the re-distribution, there was still an issue with
9 the randomization of the jury panels and again requested that his trial be continued
10 until there was a new jury panel. The State argued that the jurors had been empaneled
11 substantially in accordance with the law, but stated that it would not oppose a
12 continuance because there were not enough interpreters available for jury selection,
13 which was set for the following day. The district court denied Defendant’s motion to
14 continue the trial; however, the court did continue jury selection, setting it for
15 November 9, 2012, the day of the trial.
16 {5} Prior to jury selection on November 9, 2012, defense counsel was again
17 permitted to question the court clerk regarding the process by which potential jurors
18 were assigned to the jury panels from which Defendant’s jury would be selected. The
19 clerk explained that in late October, district court judges, court personnel, and the
3 1 district attorney discussed the jury panel issue further, and the decision was made to
2 completely re-randomize the five jury panels. The clerk stated that she did not know
3 whether members of the defense bar were invited to participate in that discussion.
4 {6} According to the clerk, she and another court employee manually re-
5 randomized the jury panels by re-combining all the names in the jury pool, shuffling
6 or mixing them up, then randomly drawing names and assigning potential jurors to
7 one of five new jury panels. She explained that the names of all the prospective jurors
8 in the jury pool were combined, shuffled, randomly selected, and assigned to one of
9 five new jury panels. Defense counsel stated that before moving on to jury selection,
10 he wished to state his continued objection with regard to the re-randomization of the
11 jury panels.
12 {7} During voir dire, one of the prospective jurors stated that she recognized
13 Defendant because he would pass by her house almost every day and ask for money.
14 This prospective juror stated that her prior interaction with Defendant would cause her
15 to be biased if chosen as a juror. She was stricken for cause and did not sit on
16 Defendant’s jury. The defense was concerned about the potential effect of the juror’s
17 comments on the jury panel. Defense counsel requested the opportunity to question
18 two of the panel members regarding the comments during individual voir dire, rather
19 than addressing the comments with the entire jury panel. The district court stated that
4 1 it would permit defense counsel to question any of the panel members regarding
2 potential bias related to the comments. However, defense counsel identified just two
3 panel members for questioning on the issue. Both panel members that were questioned
4 stated that if selected as jurors they would not be biased by the comments.
5 {8} Nonetheless, Defendant moved for a mistrial based on the prospective juror’s
6 comments, arguing that the juror’s statement—that Defendant regularly asked for
7 money—would lead the other panel members to infer that Defendant was asking for
8 money to buy alcohol, which would be prejudicial, given the nature of Defendant’s
9 DWI charges. The motion was denied.
10 {9} After jury selection and prior to trial, the defense renewed its objection
11 regarding the re-randomization of the jury panels. Specifically, the defense argued that
12 the decision to re-randomize the jury panels should not have been reached without
13 members of the defense bar present. The district court explained that the decision to
14 completely re-randomize the jury panels was reached after two separate discussions
15 concerning the issue. The first discussion involved the district court judge in his
16 chambers after a hearing on another case, a couple of defense attorneys, and possibly
17 one prosecutor. Later the same day, the judge listened in on the second discussion that
18 involved three other district court judges, the court administrator, and the district
19 attorney. The decision to re-randomize the jury panels was a result of both
5 1 discussions. The district court judge also stated that he did not know how the later
2 meeting was organized or whether members of the defense bar were notified. The
3 defense moved for a mistrial and requested that the district court judge recuse himself,
4 arguing that the judge, by virtue of his attendance in the later meeting, had engaged
5 in ex parte communications. The motion was denied.
6 {10} Defendant was convicted of aggravated DWI and two counts of failure to obey
7 traffic control devices. This appeal followed.
8 DISCUSSION
9 {11} Defendant raises two main issues that he was denied a fair and impartial jury
10 and that the district court erred by engaging in ex parte communications stemming
11 from the re-randomization of the jury pool. We first consider Defendant’s claim that
12 he was denied a fair and impartial jury.
13 Fair and Impartial Jury
14 {12} Defendant contends that the district court erred in denying his motion for a
15 continuance so that he could select a jury from a properly empaneled jury pool.
16 Defendant correctly states that the grant or denial of a continuance is reviewed for an
17 abuse of discretion. State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d
18 135. However, the State construes Defendant’s motion as a motion to strike the jury
19 pool, which is reviewed de novo. See State v. Casillas, 2009-NMCA-034, ¶ 9, 145
6 1 N.M. 783, 205 P.3d 830 (stating that a motion to strike the jury pool presents a mixed
2 question of law and fact and is reviewed de novo). Under either standard, Defendant’s
3 claim fails.
4 {13} Defendant cites State v. Samora, 2013-NMSC-038, ¶¶ 6, 18, 307 P.3d 328, and
5 State v. Rico, 2002-NMSC-022, ¶ 5, 132 N.M. 570, 52 P.3d 942, in support of his
6 argument that he was deprived of a fair and impartial jury. However, Defendant makes
7 no attempt to demonstrate how these cases apply to the circumstances of this case. In
8 Samora and Rico, our Supreme Court held that the trial courts must “make every
9 reasonable effort to accommodate a potential juror for whom language difficulties
10 present a barrier to participation in court proceedings” and are constitutionally
11 prohibited from excusing potential jurors based on the unavailability of court
12 interpreters. Samora, 2013-NMSC-038, ¶ 8 (emphasis, internal quotation marks, and
13 citation omitted); see Rico, 2002-NMSC-022, ¶¶ 5-6, 11. Here, Defendant’s claim is
14 based on his objection to the procedure by which potential jurors were assigned to the
15 jury panel from which he selected a trial jury, namely that an entirely new jury pool
16 should have been convened. Defendant concedes that the jury pool was re-
17 randomized, but argues that this action interfered with the “composition of the venire
18 and resulted in a violation of [his] right to due process.” Defendant does not assert,
7 1 and the record does not indicate, that any jurors were prevented from serving or were
2 denied access to an interpreter.
3 {14} Defendant also cites State v. Aragon, 1989-NMSC-077, ¶ 22, 109 N.M. 197,
4 784 P.2d 16, and State v. Gonzales, 1991-NMCA-007, ¶ 28,111 N.M. 590, 808 P.2d
5 40, in support of his claims. In Aragon, our Supreme Court explained that the right to
6 be tried by a fair and impartial jury entitles a defendant to be tried by a jury that
7 represents a fair cross section of the community and held peremptory strikes could not
8 be used to systematically exclude prospective jurors based on race. 1989-NMSC-077,
9 ¶¶ 8, 22-25. Similarly in Gonzales, this Court held that peremptory strikes could not
10 be used to exclude prospective jurors on the basis of gender. 1991-NMCA-007, ¶ 34.
11 Here, Defendant does not challenge the composition of the re-randomized jury panel
12 from which his jury was selected or the composition of the jury that was empaneled
13 for his trial. As we previously stated, the record nowhere indicates that any potential
14 jurors in this case were prevented from serving as jurors or were improperly excluded.
15 {15} Additionally, Defendant cites Article II, Section 14 and Article VII, Section 3
16 of the New Mexico Constitution for purposes of constitutional violations absent any
17 analysis. The State argues that Defendant failed to preserve this issue. We need not
18 address the preservation issue as Defendant has failed to articulate an argument or
19 provide authority for any such constitutional violations. In re Adoption of Doe, 1984-
8 1 NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (“[T]o present an issue on appeal for
2 review, an appellant must submit argument and authority as required by rule.”
3 (emphasis omitted)). “We will not review unclear arguments, or guess at what [a
4 party’s] arguments might be.” Headley v. Morgan Mgmt. Corp., 2005-NMCA-045,
5 ¶ 15, 137 N.M. 339, 110 P.3d 1076. For this Court to rule on the inadequately briefed
6 constitutional issue would essentially require it to do the work on behalf of Defendant.
7 See State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 (reminding
8 counsel that the appellate courts are not required to do their research).
9 {16} Finally, Defendant cites NMSA 1978, Section 38-5-11(A) (2005), which
10 provides that “[t]he court shall empanel jurors in a random manner[,]” NMSA 1978,
11 Section 38-5-5(B) (1997), which defines “jury tampering” as “the selection or drawing
12 of jurors other than in accordance with law[,]” and NMSA 1978, Section 38-5-16
13 (1969), which provides that a defendant “may challenge the jury panel on the ground
14 that the members thereof were not selected substantially in accordance with law[, and
15 i]f the motion is sustained, then the trial will be stayed until a jury panel has been
16 selected and qualified in accordance with law.” While Defendant argues that it would
17 have been better for the court to simply grant his motion to continue, rather than
18 proceed with the re-randomized jury panels, he stops short of arguing that the re-
19 randomization of the jury panels was not done in accordance with the law.
9 1 {17} Thus, Defendant’s cited authority and the record before us provide no basis to
2 conclude that Defendant was deprived of his right to a fair and impartial jury or that
3 the denial of his motion for continuance violated his due process rights. See Elane
4 Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (recognizing that
5 the appellate courts “will not review unclear arguments, or guess at what a party’s
6 arguments might be” (alteration, internal quotation marks, and citation omitted)).
7 Fair and Impartial Proceedings
8 {18} Defendant argues that he was deprived of his right to a fair and impartial
9 proceeding when the district court judge failed to recuse himself after discussing the
10 re-randomization of the jury panels with other district court judges and the district
11 attorney. We disagree.
12 {19} “[R]ecusal rests within the discretion of the trial judge, and will only be
13 reversed upon a showing of an abuse of that discretion.” State v. Riordan, 2009-
14 NMSC-022, ¶ 6, 146 N.M. 281, 209 P.3d 773. “An abuse of discretion occurs when
15 the ruling is clearly against the logic and effect of the facts and circumstances of the
16 case. [An appellate court] cannot say the trial court abused its discretion by its ruling
17 unless it can characterize [the ruling] as clearly untenable or not justified by reason.”
18 State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation
19 marks and citation omitted).
10 1 {20} Rule 21-209(A) NMRA prohibits a judge from initiating, permitting, or
2 considering ex parte communications. “A judge shall perform the duties of judicial
3 office, including administrative duties, without bias or prejudice.” Rule 21-203(A)
4 NMRA. A judge shall recuse “in any proceeding in which the judge’s impartiality
5 might reasonably be questioned.” Rule 21-211(A) NMRA. “Recusal is only required
6 when a judge has become so embroiled in the controversy that he or she cannot fairly
7 and objectively hear the case.” State v. Trujillo, 2009-NMCA-128, ¶ 11, 147 N.M.
8 334, 222 P.3d 1040 (alterations, internal quotation marks, and citation omitted). “In
9 order to require recusal, bias must be of a personal nature against the party seeking
10 recusal” and a claim of judicial bias “cannot be based on mere speculation.” Id.
11 (internal quotation marks and citation omitted).
12 {21} Defendant argues that by attending a meeting where the district attorney was
13 present and members of the defense bar were not, the district court judge engaged in
14 “ex parte communications” and that failing to subsequently recuse himself was an
15 abuse of discretion. This argument is based on the faulty premise that the district court
16 judge’s participation in the discussion constituted an ex parte communication. An ex
17 parte communication, by definition, is “[a] communication between counsel and the
18 court when opposing counsel is not present.” Black’s Law Dictionary 337 (10th ed.
19 2014). The record indicates neither of the parties or counsel in this case were present
11 1 during the discussion of the administrative issue concerning the composition and re-
2 randomizing of the five jury panels. The record also indicates that the discussions did
3 not involve substantive matters with regard to any particular case, much less
4 Defendant’s case. The parties in this case were also informed by the district court
5 judge of the re-randomizing of the entire jury pool. See Rule 21-209(A)(1) (explaining
6 that “[w]hen circumstances require it, ex parte communication for . . . administrative
7 . . . purposes, which does not address substantive matters, is permitted, provided[] .
8 . . no party will gain a procedural, substantive, or tactical advantage,” and all the
9 parties are promptly notified and given an opportunity to respond).
10 {22} Based on these facts, we conclude that Defendant has not demonstrated bias of
11 a personal nature by the district court judge against Defendant in this case, nor has
12 Defendant shown anything that indicates an appearance of impropriety. See Trujillo,
13 2009-NMCA-128, ¶ 12. We conclude that the district court judge did not err in
14 denying Defendant’s motion to recuse.
15 Cumulative Error
16 {23} Defendant claims that by the district court denying his motion for mistrial, after
17 a series of compounding errors, the cumulative effect of those errors deprived him of
18 his rights to due process and a fair trial. This argument is not persuasive.
12 1 {24} The doctrine of cumulative error “requires reversal of a defendant’s conviction
2 when the cumulative impact of errors which occurred at trial was so prejudicial that
3 the defendant was deprived of a fair trial.” State v. Woodward, 1995-NMSC-074, ¶ 59,
4 121 N.M. 1, 908 P.2d 231 (internal quotation marks and citation omitted), abrogated
5 on other grounds as recognized by State v. Granillo-Macias, 2008-NMCA-021, 143
6 N.M. 455, 176 P.3d 1187. This “doctrine is to be strictly applied.” State v. Roybal,
7 2002-NMSC-027, ¶ 33, 132 N.M. 657, 54 P.3d 61. It does not apply where, as in the
8 present case, Defendant has not demonstrated that error has occurred or where “the
9 record as a whole demonstrates that the defendant received a fair trial.” State v.
10 Guerra, 2012-NMSC-014, ¶ 47, 278 P.3d 1031 (internal quotation marks and citation
11 omitted). “Cumulative error has no application if the district court committed no errors
12 and if the defendant received a fair trial.” Id. The district court did not err in denying
13 Defendant’s multiple motions, therefore, there is no cumulative error.
14 Juror Bias
15 {25} Pursuant to State v. Franklin, 1967-NMSC-151, ¶ 9, 78 N.M. 127, 428 P.2d
16 982, and State v. Boyer, 1985-NMCA-029, ¶¶ 17-24, 103 N.M. 655, 712 P.2d 1,
17 Defendant argues that the district court erred in denying his motion for a mistrial after
18 a member of the jury panel, when responding to a question during voir dire, stated that
19 she had seen Defendant begging for money. Defense counsel explained that this
13 1 response was prejudicial in that the other panel members would think that Defendant
2 was begging for money for alcohol, and that this could relate to his being on trial for
3 a DWI.
4 {26} We review a district court’s decision to grant or refuse a mistrial for an abuse
5 of discretion. State v. Torres, 2012-NMSC-016, ¶ 7, 279 P.3d 740. “The trial court
6 abuses its discretion in ruling on a motion for mistrial if in doing so it acted in an
7 obviously erroneous, arbitrary, or unwarranted manner.” Id. (internal quotation marks
8 and citation omitted).
9 {27} Defendant contends that the jury panel member’s comments during voir dire,
10 concerning her prior contact with Defendant, were heard by other prospective jury
11 members and conveyed a prejudicial impression of Defendant, which deprived him
12 of a fair trial. Where a jury panel member presents information that is extraneous to
13 the trial during voir dire and there is a reasonable possibility the information
14 prejudiced the defendant, the district court should grant a new trial. State v. Sacoman,
15 1988-NMSC-077, ¶ 17, 107 N.M. 588, 762 P.2d 250. The introduction of extraneous
16 information “creates a presumption of prejudice that may be rebutted by showing that
17 no prejudice actually occurred.” Id. “Whether the presumption of prejudice has been
18 overcome rests in the sound discretion of the trial court.” Id. ¶ 18 (internal quotation
14 1 {28} Here, the district court allowed defense counsel to question prospective jurors
2 about their ability to remain unbiased after hearing the comment about Defendant
3 asking for money; however, defense counsel only identified two panel members for
4 questioning. Both stated that the comment had not resulted in bias against Defendant.
5 Defendant’s decision to limit his opportunity to question the entire jury panel to only
6 two prospective jurors is essentially a waiver of his argument on appeal. See, e.g.,
7 State v. Gardner, 1985-NMCA-084, ¶ 14, 103 N.M. 320, 706 P.2d 862 (noting that
8 to the extent there is a right to confront jury panel members, failure to question the
9 prospective juror acts as a waiver).
10 {29} When the jury panel member that made the comment was individually
11 questioned, she expanded on her original response that Defendant had asked for $50
12 to bail his son out of jail. She was not selected to sit on Defendant’s jury. It was
13 defense counsel who inflated the implication of the prospective juror’s response
14 thereby falsely injecting any alleged prejudice by stating that the jury would think that
15 Defendant was begging for money for alcohol. There was nothing in the record to
16 support defense counsel’s theory that any prejudice actually occurred. There was
17 nothing in the record to indicate that the jurors who were selected were influenced by
18 the comment, exposed to highly prejudicial extraneous information, or failed to be
15 1 impartial in reaching their verdict. Accordingly, we cannot say that the district court
2 abused its discretion in denying Defendant’s motion for a mistrial.
3 CONCLUSION
4 {30} For the foregoing reasons, we affirm.
5 {31} IT IS SO ORDERED.
6 7 M. MONICA ZAMORA, Judge 8 WE CONCUR:
9 10 JONATHAN B. SUTIN, Judge
11 12 LINDA M. VANZI, Judge