State v. Barela

Opinion

This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court and does not include the filing date.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Opinion Number: 3 Filing Date: March 28, 2013

4 NO. 32,506 5 STATE OF NEW MEXICO,

6 Plaintiff-Appellee, 7 v.

8 BRANDON BARELA, 9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 11 Stephen K. Quinn, District Judge

12 Robert E. Tangora, L.L.C. 13 Robert E. Tangora 14 Santa Fe, NM

15 for Appellant

16 Gary K. King, Attorney General 17 Yvonne Marie Chicoine, Assistant Attorney General 18 Santa Fe, NM

19 for Appellee 1 DECISION 2 MAES, Chief Justice. 3 {1} Brandon Barela (Defendant) was convicted of first-degree willful and deliberate 4 murder, kidnapping, armed robbery, and two counts of tampering with evidence. 5 Defendant was sentenced to a term of life imprisonment for first-degree murder and 6 eighteen years for kidnapping, to be served consecutively. Defendant was also 7 sentenced to nine-years for armed robbery and two three-year sentences for tampering 8 with evidence to run concurrently with his eighteen year sentence for kidnapping. 9 Defendant appeals his conviction directly to this Court. This Court exercises appellate 10 jurisdiction where life imprisonment has been imposed. See N.M. Const. art. VI, § 2; 11 see also Rule 12-102(A)(1) NMRA (providing a right to direct appeal when a sentence 12 of life imprisonment has been imposed). 13 {2} Defendant raises the following issues on appeal: (1) Whether the district court 14 erred in granting the State’s Batson challenge and denying Defendant the right to 15 exercise a peremptory challenge excluding Dr. Kathryn Winters from the jury; (2) 16 Whether the district court violated Defendant's right to confrontation by allowing the 17 State’s fingerprint expert to testify about tests which she neither performed nor 18 supervised; (3) Whether the district court erred in denying Defendant’s request for a 19 mistrial; (4) Whether the district court improperly instructed the jury on the elements

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1 of willful and deliberate murder; (5) Whether the district court erred by denying 2 Defendant’s motions for continuances; (6) Whether the district court erred in allowing 3 the State to present a “non-crime” scene photo of Victim during its opening 4 statements; (7) Whether there was sufficient evidence to support Defendant’s 5 convictions; (8) Whether the district court erred in allowing Defendant’s custodial 6 statements to be introduced into evidence without Defendant having been advised of 7 his Miranda rights; (9) Whether, taken together as a whole, the district court’s errors 8 amounted to cumulative error. 9 I. FACTS AND PROCEDURAL HISTORY 10 {3} Defendant, a supervisor with Double K Testing, and three company employees, 11 Manual Vargas (Vargas), Jose Rodriguez (Rodriguez), and Lazaro Soto (Soto), 12 traveled in a company truck from Roswell to Clovis to test milk at three local dairies. 13 After finishing their work for the day, the men had dinner at a local Pizza Hut where 14 they shared four pitchers of beer before heading back to their hotel. 15 {4} After dinner, and before checking into their hotel, the men stopped and 16 purchased beer from a gas station. After the men checked into their hotel, Defendant, 17 Vargas and Soto went to Webb’s Watering Hole (Webb’s) to drink and play pool. 18 While playing pool at Webb’s the three men met Ron Hittson (Victim). The four men

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1 played pool together until closing time at which point Defendant suggested that the 2 men go to another bar to continue drinking. Soto did not want to go to another bar 3 and had the other men take him back to the hotel. After dropping Soto off at the hotel, 4 Vargas drove Defendant and Victim to City Limits Bar where the three men continued 5 to drink and play pool. At the bar Defendant and Victim smoked marijuana in the 6 restroom. When Victim and Defendant returned to the pool tables, the bar owner 7 asked the three men to leave the bar. 8 {5} The three men left the City Limits Bar and got back in the company truck to 9 take Victim back to Webb’s to get his vehicle. While in the truck on the way back to 10 Webb’s, Victim told Defendant and Vargas that he wanted to keep partying and 11 inquired as to whether the other men knew where he could get some marijuana and 12 cocaine. Defendant asked Victim if he had any money, and Victim showed Defendant 13 that he had approximately $400 in cash. 14 {6} Defendant then pulled out his cell phone, pretended to place a few calls looking 15 for drugs, and drove in the direction of the dairies. Vargas sensed something was 16 amiss and told Defendant he wanted to call it a night. Defendant said “no” and told 17 Vargas that he wanted to “score some.” Defendant again pretended to place calls 18 looking for drugs and quoted Victim a price for “the score.” Victim complained that

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1 the price was too high and Defendant became aggravated. 2 {7} Defendant and Victim exchanged words, and Victim told Defendant to stop the 3 truck, and that he would walk back to “his rig.” When Defendant stopped the truck, 4 Victim exited and began walking towards town. 5 {8} As Victim walked away from the truck, Defendant told Vargas “let’s get him 6 . . . I’m gonna get him.” Defendant then jumped out of the truck, told Vargas to slide 7 over to the driver’s seat, grabbed something from the back of the truck, and proceeded 8 in Victim’s direction. Vargas moved to the driver’s seat of the truck, rolled the 9 window down, and drove in the direction of Victim and Defendant. Vargas heard the 10 sound of someone “taking a hit,” stopped the car, and walked toward Defendant and 11 Victim. Vargas witnessed Defendant hit Victim over the head approximately four 12 times with a cinder block. 13 {9} When Vargas tried to stop Defendant, Defendant turned, hit Vargas in the face, 14 and told him that he knew what he was doing, “[i]t’s not like [he’d] never done this 15 before, [and that he] need[ed] to do it.” Vargas then went back to the truck. 16 Defendant followed, tossed the cinderblock in the back, jumped in the passenger side 17 of the truck, and instructed Vargas to take off. 18 {10} When Vargas and Defendant arrived back at the hotel Defendant ran to Vargas

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1 and Rodriguez’s hotel room, woke Rodriguez up, and told him he needed help getting 2 rid of a body. Vargas told Rodriguez what happened, and Rodriguez told him that he 3 did not want anything to do with the situation. 4 {11} Defendant then went to his hotel room, woke Soto up, and told him he needed 5 help. After talking with Soto, Defendant called another Double K employee, A.J. 6 Perales (Perales), and asked him to drive Defendant’s personal vehicle to Clovis. 7 Defendant returned to Vargas and Rodriguez’s room holding a crowbar and told 8 Vargas that they needed to go back and make sure that Victim was dead. Vargas and 9 Defendant drove back to the location where they had left Victim. Vargas dropped 10 Defendant off near the location where they had left Victim’s body. Vargas then drove 11 down the road a bit further, did a u-turn, and returned to the spot where he had 12 dropped Defendant off. Defendant jumped into the truck, tossed a crowbar onto the 13 middle of the front seat and told Vargas to clean the crowbar off and put it back where 14 it belonged. The two men then returned to the hotel for the night. 15 {12} The next morning Defendant drove Vargas, Soto, and Rodriguez to the job site. 16 Perales arrived at the job site with Defendant’s personal truck, and Defendant made 17 up an excuse to leave early and left Clovis with Soto. After the others had completed 18 the day’s work, Vargas drove everyone back to Roswell in the company truck,

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1 dropped everyone off at their respective homes, and drove the company truck to 2 Defendant’s house. 3 {13} Victim’s body was found without any identification and his injuries rendered 4 him unrecognizable. Police found Victim’s truck in the parking lot of Webb’s and 5 based on Webb’s surveillance video were able to connect Defendant, Soto, and Vargas 6 to the Victim. 7 {14} Victim suffered a minimum of four “high energy injuries” to his head and face 8 and a postmortem injury to his chest. Victim’s body had no defensive wounds. 9 {15} Defendant was charged with first-degree murder contrary to NMSA 1978, 10 Section 30-2-1(A)(1) (1994), or in the alternative felony murder contrary to NMSA 11 1978, Section 30-2-1(A)(2) (1994); kidnapping in the first-degree contrary to NMSA 12 1978, Section 30-4-1 (2003); armed robbery contrary to NMSA 1978, Section 30-16-2 13 (1973); two counts of tampering with evidence contrary to NMSA 1978, Section 30- 14 22-5 (2003), and battery contrary to NMSA 1978, Section 30-3-4 (1963). The State 15 later withdrew the battery charge. 16 II. DISCUSSION 17 A. Peremptory Challenge 18 {16} The first issue on appeal concerns Defendant’s exercise of a peremptory

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1 challenge to exclude Dr. Kathryn Winters from the jury. The following additional 2 facts are relevant to this issue. 3 {17} The State raised its first Batson challenge after Defendant used four of his 4 peremptory challenges to exclude four white females from the jury panel: Ms. Ware, 5 Ms. Rogers, Ms. Gann, and Ms. Perkins. Defendant asserted that the Batson challenge 6 only applied to Ms. Perkins and noted that he had already accepted two white female 7 jurors. The State argued that nothing in Batson suggests that such a challenge only 8 applies to the last juror, and explained that in order to raise a Batson challenge the 9 objecting party need only establish a pattern of discrimination. The district court 10 reviewed Defendant’s peremptory challenges and Defendant asserted that there was 11 no pattern of discrimination, that there was no protected class, and that his decision 12 to strike was random. The district court inquired as to whether Batson applied to 13 gender issues as well as “ethnic issues.” The State explained that Batson applies to 14 both gender and race issues, and that in order for Batson to apply a pattern of 15 discrimination must have been established. The district court then asked Defendant 16 to provide reasons for his challenges. Defendant stated that the decision to 17 peremptorily strike these venier persons was based on “information,” a potential 18 juror’s interactions with counsel, and personal choice. The district court did not rule

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1 on the State’s Batson challenge at that time, but stated it would keep the State’s 2 concerns in mind. 3 {18} The jury selection process continued and Defendant used two more peremptory 4 challenges to strike two white females, Ms. Crowder and Dr. Winters. The State then 5 raised another Batson challenge. Defendant argued that his decision to excuse Dr. 6 Winters was based on the fact that she was a physician, had testified as a government 7 witness, and had worked with law enforcement. Defendant also asserted that he was 8 removing Dr. Winters because she knew the prosecutor. Mr. Chandler stated that he 9 did not know Dr. Winters. 10 {19} The record reflects that when the judge asked the potential jurors if they knew 11 Mr. Chandler, Dr. Winters mentioned that she knew the prosecutor because he was a 12 public figure, but that she did not know him personally, and that she could be 13 unbiased. Neither party questioned Dr. Winters on this matter. 14 {20} The district court denied Defendant’s peremptory challenge and Dr. Winters 15 was placed on the jury. Defendant filed a motion requesting the district court 16 reconsider its Batson ruling. In the motion, Defendant stated that Dr. Winters was 17 being excused because she had served as a government witness, and was a physician. 18 Defendant attached Dr. Winters’ juror questionnaire to his motion, which indicated

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1 that Dr. Winters had testified in a criminal child abuse case. Defendant’s motion was 2 denied, Dr. Winters was placed on the jury, and became the foreperson. 3 {21} Defendant argues that the State failed to make a prima facie showing that 4 Defendant used his peremptory challenges in a discriminatory manner and therefore 5 the district court erred in denying him his right to peremptorily exclude Dr. Winters. 6 Defendant claims that to make a prima facie showing that a peremptory challenge was 7 race or gender motivated, a party must show that: (1) the defendant is a member of a 8 cognizable race or gender; (2) the party has exercised its peremptory challenges to 9 remove members of that group from the jury panel; and (3) these facts, and any other 10 relevant circumstances, raise an inference that the party used its challenges to exclude 11 members of the panel solely on account of their race or gender. Defendant contends 12 that the State satisfied the first two prongs, but failed to provide sufficient facts to 13 raise the inference that Defendant’s peremptory challenges were based solely on 14 gender. 15 {22} The State asserts that Defendant’s use of seven of his eight peremptory 16 challenges to remove white females from the jury panel was a prima facie showing of 17 purposeful discrimination. The State relies on State v. Gonzales, 111 N.M. 590, 808 18 P.2d 40 (Ct. App. 1991), to support this assertion. In Gonzales, the Court of Appeals

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1 held that the defendant’s “showing that the state used eighty percent of its peremptory 2 challenges to eliminate members of his racial group from the jury was a prima facie 3 showing of intentional discrimination, and shifted the burden to the [state] to come 4 forward with a racially neutral explanation” for the use of the peremptory challenges. 5 111 N.M. at 596-97, 808 P.2d at 46-47. The Court further held that the fact that a few 6 of the jurors were the same race as the defendant was not determinative of whether a 7 prima facie showing of purposeful discrimination had been made, but that such 8 information was relevant when determining whether there was a prima facie showing 9 of purposeful discrimination. Id. 10 {23} The State also claims that Defendant’s argument regarding the State’s alleged 11 failure to make a prima facie showing of purposeful discrimination was not preserved. 12 Defendant contends that this issue was properly preserved when, after the State 13 objected to his use of a peremptory challenge to remove Dr. Winters, he argued the 14 exercise was proper pursuant to Batson. 15 {24} In order for a question to be preserved for review, “it must appear that a ruling 16 or a decision by the district court was fairly invoked.” Rule 12-216 NMRA. A ruling 17 or decision is fairly invoked if a party’s objection or motion is “made with sufficient 18 specificity to alert the mind of the [district] court to the claimed error.” Kilgore v. Fuji

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1 Heavy Indus. Ltd., 2010-NMSC-040, ¶ 26, 148 N.M. 561, 240 P.3d 648 (internal 2 quotation marks and citation omitted). Therefore, “[t]o preserve an argument for 3 appellate review, it must appear that an appellant fairly invoked a ruling of the trial 4 court on the same grounds argued in the appellate court.” Schuster v. State Dep’t. of 5 Taxation & Revenue, Motor Vehicle Div., 2012-NMSC-025, ¶ 33, 283 P.3d 288 6 (internal quotation marks and citation omitted); see State v. Paiz, 2011-NMSC-008, 7 ¶ 27, 149 N.M. 412, 249 P.3d 1235 (providing “[a] defendant must make a timely 8 objection that specifically apprises the trial court of the nature of the claimed error and 9 invokes an intelligent ruling thereon”) (internal quotation marks and citation omitted). 10 {25} After the district court granted the State’s Batson challenge and denied 11 Defendant’s peremptory challenge regarding Dr. Winters, Defendant filed a motion 12 requesting that the district court reconsider its decision, which the district court 13 subsequently denied. Defendant’s motion for reconsideration, therefore, alerted the 14 district court of the claimed error and preserved the question regarding whether the 15 district court erred in granting the State’s Batson challenge. 16 {26} We employ a deferential standard of review when reviewing a district court’s 17 factual findings regarding a Batson challenge as it is “the responsibility of the 18 [district] court to (1) evaluate the sincerity of both parties, (2) rely on its own

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1 observations of the challenged jurors, and (3) draw on its experience in supervising 2 voir dire.” State v. Salas, 2010-NMSC-028, ¶ 33, 148 N.M. 313, 236 P.3d 32 (internal 3 quotation marks and citation omitted). The ultimate issue of constitutionality, 4 however, is reviewed de novo. Id. 5 {27} In determining whether a party has exercised his or her peremptory challenges 6 in a purposefully discriminatory manner, the party alleging a Batson violation must 7 make a prima facie showing that “(1) a peremptory challenge was used to remove a 8 member of a protected group from the jury panel, and (2) the facts and other related 9 circumstances raise an inference that the individual was excluded solely on the basis 10 of his or her membership in a protected group.” Salas, 2010-NMSC-028, ¶ 31. If the 11 party challenging the use of the peremptory challenge makes a prima facie showing, 12 then the burden shifts to the proponent of the challenge to offer a facially valid race 13 or gender-neutral explanation for the challenge. Id. ¶ 32. “Unless a discriminatory 14 intent is inherent in the . . . explanation, the reason offered will be deemed race [or 15 gender]-neutral.” Id. (second alteration in original). If the district court finds the 16 reason to be facially valid then the party opposing the peremptory challenge is allowed 17 to refute the stated reason, or otherwise establish purposeful discrimination. State v. 18 Jones, 1997-NMSC-016, ¶ 3, 123 N.M. 73, 934 P.2d 267. The district court must then

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1 determine whether the opponent of the strike has refuted the facially valid reason and 2 established purposeful discrimination. Salas, 2010-NMSC-028, ¶ 32; see Gonzales, 3 111 N.M. at 597, 808 P.2d at 47. 4 1. Prima Facie Showing 5 {28} The record reflects that Defendant failed to assert an objection regarding the 6 State’s alleged failure to establish a prima facie case of purposeful discrimination, and 7 the district court did not specifically rule on whether the State made a prima facie 8 showing. However, “[o]nce a [party] has offered a race-neutral explanation for the 9 peremptory challenges and the trial court has ruled on the ultimate question of 10 intentional discrimination, the preliminary issue of whether the [party raising the 11 Batson challenge] made a prima facie showing becomes moot.” State v. Gerald B., 12 2006-NMCA-022, ¶ 32, 139 N.M. 113, 129 P.3d 149 (quoting Hernandez v. New 13 York, 500 U.S. 352, 359 (2006)) (first alteration in original). Although a district court 14 should make a thorough record, in situations when, without prompting, a party offers 15 a race or gender neutral explanation for a peremptory challenge a specific ruling by 16 the district court regarding whether the objecting party made a prima facie case is not 17 necessary. See Gerald B., 2006-NMCA-022, ¶ 32; Zakour v. UT Med. Group, Inc., 18 215 S.W.3d 763, 770 (providing that “[b]ecause the [d]efendants explained their

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1 reasons for the peremptory challenges without prompting by the trial court, the trial 2 court did not make a determination that the [p]laintiff had established a prima facie 3 case of purposeful discrimination,” and that such a ruling was not necessary under the 4 circumstances”). 5 2. Gender-Neutral Reason 6 {29} In the second step of the Batson analysis, the burden shifts to the party 7 exercising the peremptory challenge to articulate a gender-neutral and facially valid 8 explanation for the challenge. See Gerald B., 2006-NMCA-022, ¶ 33; see also Jones, 9 1997-NMSC-016, ¶ 3. Here, Defendant explained that his decision to peremptorily 10 excuse Dr. Winters was based on the fact she had indicated on her juror questionnaire 11 that she had served as a government witness, and that she stated she knew the 12 prosecutors. The reasons offered by Defendant were both facially neutral and specific 13 to Dr. Winters. Therefore, Defendant offered a facially valid gender-neutral reason 14 to support his decision to peremptorily strike Dr. Winters from the jury. Therefore, 15 we now turn to whether the State adduced evidence to refute Defendant’s assertions. 16 3. Rebuttal Evidence 17 {30} The third step of the Batson analysis required the State to adduce evidence to 18 refute Defendant’s explanation or otherwise prove that Defendant had used his

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1 peremptory challenges in an intentionally discriminatory manner. See State v. Begay, 2 1998-NMSC-029, ¶ 14, 125 N.M. 541, 964 P.2d 102 (“A peremptory challenge that 3 is found to be valid on its face stands unless the defendant comes forward with a 4 refutation of the stated reason—e.g., by challenging its factual basis—or proof of 5 purposeful discrimination by the prosecutor.”). 6 {31} The State challenged the factual basis of Defendant’s assertions. Defendant 7 stated that Dr. Winters listed on the questionnaire that she had been a witness for the 8 government. The State refuted Defendant’s assertion noting that neither prosecutor 9 had used Dr. Winters as a government witness, and nothing on Dr. Winters’ 10 questionnaire contained information suggesting she served as a government witness. 11 The record reveals that Dr. Winters’ jury questionnaire form indicates that she had 12 previously been a witness in a child abuse case, but does not state that she was a 13 witness for the government. The State was able to refute Defendant’s factual 14 allegations regarding Dr. Winters status as a government witness to the district court’s 15 satisfaction. The State also refuted Defendant’s allegations that Dr. Winters knew the 16 prosecutor in any capacity other than as a public figure. In light of the State’s rebuttal 17 evidence, the district court found that there had been purposeful discrimination. 18 {32} Because a district court’s determination regarding a Batson challenge will only

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1 be reversed if it is determined that the district court abused its discretion, we defer to 2 the district court’s determination that Defendant failed to provide the court with a 3 gender-neutral reason to justify peremptorily excusing Dr. Winters. Therefore, based 4 on what the district court believed to be a pattern of purposeful discrimination and the 5 State’s ability to refute Defendant’s gender-neutral justifications, we affirm the district 6 court’s decision to allow Dr. Winters to serve on the jury. 7 B. Confrontation Clause 8 {33} The second issue raised on appeal is whether the district court violated 9 Defendant’s right to confrontation by allowing the State’s fingerprint expert to testify 10 about tests which she neither performed nor supervised. The following facts are 11 relevant to this issue. 12 {34} The State offered Ms. Ferguson as an expert in fingerprint analysis who would 13 offer her own expert opinion regarding the fingerprint analysis conducted by Mr. 14 Knoll. Defendant asserted that Ms. Ferguson should not be permitted to testify 15 because the State, by qualifying Ms. Ferguson as an expert witness, was attempting 16 to get the fingerprint analysis in through “the back door.” The district court, over 17 Defendant’s objection, allowed the State to offer Ms. Ferguson as an expert in 18 fingerprint analysis and to testify at trial.

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1 {35} Ms. Ferguson testified regarding a fingerprint analysis that was conducted by 2 another lab technician, Mr. Knoll. Ms. Ferguson stated that she had not evaluated the 3 evidence on which the report was based, nor had she done a separate analysis of the 4 fingerprint evidence, and that her knowledge was based solely on Mr. Knoll’s report. 5 Ms. Ferguson testified as to the conclusions reached by Mr. Knoll and did not offer 6 any of her own conclusions as to the validity of the report. Ms. Ferguson’s testimony, 7 therefore, was a recitation of the information contained in Mr. Knoll’s report and was 8 used to place Vargas, and Rodriguez in the company truck. None of the fingerprints 9 contained in the fingerprint analysis belonged to Defendant. 10 {36} The Confrontation Clause bars “[o]ut-of-court testimonial statements . . . unless 11 the witness is unavailable and the defendant had a prior opportunity to cross-examine 12 the witness . . . .” State v. Zamarripa, 2009-NMSC-001, ¶ 23, 145 N.M. 402, 199 13 P.3d 846 (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). The main purpose 14 of the Confrontation Clause is to ensure that the accused has the opportunity to 15 confront witnesses against him. See Bullcoming v. New Mexico, 564 U.S.__, __, 131 16 S. Ct. 2705, 2713 (2011) (“The Sixth Amendment’s Confrontation Clause confers 17 upon the accused in all criminal prosecutions, . . . the right . . . to be confronted with 18 the witnesses against him.”) (alterations in original) (internal quotation marks and

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1 citation omitted). Therefore, the admission of a testimonial statement does not violate 2 the Confrontation Clause so long as the witness is unavailable to testify and the 3 accused has had a prior opportunity to confront the witness. Id. 4 {37} The question of whether the admission of testimony violates the accused’s 5 rights under the Confrontation Clause is a question of law that is reviewed de novo. 6 State v. Lopez, 2011-NMSC-035, ¶ 10, 150 N.M. 179, 258 P.3d 458. Once a 7 reviewing court has concluded that there has been a Confrontation Clause violation, 8 the constitutional standard of review, harmless beyond a reasonable doubt, applies. 9 State v. Tollardo, 2012-NMSC-008, ¶ 34, 275 P.3d 110; Lopez, 2000-NMSC-003, ¶ 10 20. In applying the harmless beyond a reasonable doubt standard of review “a 11 reviewing court should only conclude that an error is harmless when there is no 12 reasonable possibility [that] it affected the verdict.” State v. Barr, 2009-NMSC-024, 13 ¶ 53, 146 N.M. 301, 210 P.3d 198, overruled on other grounds by Tollardo, 2012- 14 NMSC-008, ¶ 37; see Tollardo, 2012-NMSC-008, ¶ 34. 15 {38} The present case presents a factual scenario that is very similar to that in 16 Bullcoming v. New Mexico, 131 S. Ct. 2705. In Bullcoming, the State offered into 17 evidence a forensic laboratory report containing a testimonial certification through the 18 in-court testimony of a scientist who neither performed nor observed the test reported

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1 in the certification. Id. at 2709-10. The United States Supreme Court concluded that 2 the document was testimonial in nature; the defendant did not have a prior opportunity 3 for cross examination; that the State had failed to establish that the scientist who 4 conducted the testing was unavailable to testify, and therefore the defendant’s 5 confrontation rights had been violated. Id. at 2717-19. In so doing, the Court held 6 that unless the individual who created the report is unavailable and the accused has 7 had a prior opportunity to cross-examine the individual responsible for the report, the 8 testimony of a witness who did not personally create the report violates the accused’s 9 right to confront his accuser. Id. 10 {39} Defendant asserts that allowing Ms. Ferguson to testify regarding a fingerprint 11 analysis that was performed by another denied him the opportunity for cross- 12 examination and violated his confrontation rights. The State agrees with Defendant 13 that his right to confrontation was violated, but asserts that any harm resulting from 14 the admission of Ms. Ferguson’s testimony was harmless. Because it is uncontested 15 that Ms. Ferguson’s testimony violated Defendant’s rights under the Confrontation 16 Clause, our review will center on whether Defendant was harmed by this violation. 17 {40} The State asserts that any harm resulting from the admission of Ms. Ferguson’s 18 testimony was harmless. The State relies on State v. Aragon, 2010-NMSC-008, 147

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1 N.M. 474, 225 P.3d 1280, overruled by Tollardo, 2012-NMSC-008, ¶ 37 n. 6. In 2 Aragon, this Court relied on the factors espoused in State v. Moore, 94 N.M. 503, 612 3 P.2d 1314 (1980), overruled by Tollardo, 2012-NMSC-008, ¶ 37 n. 6, and held that 4 in determining whether an error is harmful a reviewing court should consider the 5 existence of substantial evidence to support the conviction, the existence of a 6 disproportionate volume of permissible evidence in comparison to impermissible 7 evidence, and the absence of any conflicting evidence that would discredit the state’s 8 testimony. Aragon, 2010-NMSC-008, ¶ 35. However, since the time the parties 9 submitted their briefs to this Court, we issued Tollardo, in which we clarified our 10 harmless-error standard of review, overruled Moore, and in turn Aragon’s reliance on 11 the Moore factors. See Tollardo, 2012-NMSC-008, ¶ 37 n.6. 12 {41} In Tollardo, we explained that in determining whether the admission of the 13 evidence was harmful, a reviewing court must first determine whether the improperly 14 admitted evidence had constitutional implications. See, e.g., Aragon, 2010-NMSC- 15 008, ¶¶ 35, 37 (applying constitutional harmless error analysis where the erroneous 16 admission of hearsay reports violated the defendant’s confrontation rights); see also 17 Barr, 2009-NMSC-024,¶ 53 (distinguishing between the harmless error analysis in the 18 context of constitutional rights and non-constitutional rights and providing that a

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1 non-constitutional harmless error analysis should apply where the error concerns a 2 violation of statutory law or court rules, such as an evidentiary ruling by the trial 3 court). Improperly admitted evidence implicating a defendant’s constitutional rights 4 will only be deemed harmless if there is no reasonable possibility it affected the 5 verdict. Barr, 2009-NMSC-024,¶ 53. When, however, the improperly admitted 6 evidence does not have constitutional implications then a reviewing court should only 7 conclude that an error is harmless “when there is no reasonable probability the error 8 affected the verdict.” Barr, 2009-NMSC-024, ¶ 53. 9 {42} Because admitting Ms. Ferguson’s testimony violated Defendant’s right to 10 confrontation we must now examine whether the district court’s error in admitting Ms. 11 Ferguson’s testimony was harmless beyond a reasonable doubt. Tollardo, 2012- 12 NMSC-008, ¶ 36; Barr, 2009-NMSC-024, ¶ 55. Whether the violation was harmless 13 beyond a reasonable doubt, requires us to “evaluate all of the circumstances 14 surrounding the error” and determine whether there is a reasonable possibility that the 15 error affected the verdict. Tollardo, 2012-NMSC-008, ¶ 43; Barr, 2009-NMSC-024, 16 ¶ 55. 17 {43} In determining whether there is a reasonable possibility that the verdict was 18 affected by the error, a reviewing court must examine “the error itself, which

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1 depending upon the facts of the particular case could include an examination of the 2 source of the error and the emphasis placed upon the error.” Tollardo, 2012-NMSC- 3 008, ¶ 43. In conducting this evaluation evidence of a defendant’s guilt, separate from 4 the error, may provide context for understanding the circumstances regarding how the 5 error arose and what role it may have played in the trial proceedings. Id. This, 6 however, should not be treated as the primary focus of the inquiry. 7 {44} When reviewing the impact that an error may have had on the verdict, courts 8 may consider the importance of the improperly admitted evidence to the prosecution’s 9 case, as well as whether the improperly admitted evidence was cumulative of other 10 properly admitted evidence or established new facts. State v. Johnson, 2004-NMSC- 11 029, ¶ 11, 136 N.M. 348, 98 P.3d 998 (quoting Delaware v. Van Arsdall, 475 U.S. 12 673, 684 (1986)). We again stress, just as we did in Tollardo, that such considerations 13 are not to be viewed as replacing the Moore factors and that the mere fact that the 14 improperly admitted evidence was cumulative of other properly admitted evidence 15 does not automatically render the error harmless beyond a reasonable doubt. 16 Tollardo, 2012-NMSC-008, ¶ 43. Here, Defendant asserts that the error was not 17 harmless beyond a reasonable doubt because the testimony placed his co-workers at 18 the crime scene which made their testimony against him more credible in the eyes of

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1 the jury. The State, employing the Moore factors, contends that the admission of Ms. 2 Ferguson’s testimony was harmless because Ms. Ferguson’s testimony did not 3 establish a material fact, there was substantial evidence to support Defendant’s 4 convictions, and the testimony was cumulative of other evidence that established that 5 the two men were Defendant’s co-workers and that the men used the truck to travel 6 to and from job sites. 7 {45} The admission of Ms. Ferguson’s testimony was harmless beyond a reasonable 8 doubt. Ms. Ferguson’s testimony regarding the finger print analysis placed Vargas 9 and Rodriguez in the company truck. However, because none of the fingerprints 10 contained in the fingerprint analysis belonged to Defendant, Ms. Ferguson’s testimony 11 did not place Defendant in the truck or at the scene of the crime. Ms. Ferguson’s 12 testimony therefore was not crucial to the State’s ability to prove its case. Moreover, 13 Vargas testified that Defendant, Rodriguez, and Soto traveled from Roswell to Clovis 14 in the company truck. Rodriguez also provided testimony that placed himself and 15 Vargas in the company work truck, and Soto testified that after leaving Webb’s he, 16 Defendant, Vargas, and Victim were all in the company truck. Thus, the information 17 to which Ms. Ferguson testified was cumulative of other evidence establishing that 18 Rodriguez and Vargas had been in the company truck. We find it important to note

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1 that the fact that Ms. Ferguson’s testimony was cumulative of other properly admitted 2 evidence does not alone render the error harmless. However, that fact coupled with 3 the fact that the fingerprint analysis did not contain information regarding Defendant’s 4 fingerprints, and the minimal role this testimony appears to have played in the State’s 5 case, we conclude that there is no reasonable possibility that the improperly admitted 6 evidence affected the verdict. 7 {46} Accordingly, we hold that based on the totality of the circumstances 8 surrounding Ms. Ferguson’s testimony there is no reasonable possibility that her 9 testimony affected the verdict, and therefore the violation of Defendant’s right to 10 confrontation was harmless beyond a reasonable doubt. 11 C. Motion for Mistrial 12 {47} In his third issue on appeal, Defendant claims that the district court erred in 13 denying his motion for a mistrial. Defendant offers this argument pursuant to State 14 v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967) and State v. Boyer, 103 N.M. 655, 715 15 P.2d 1 (Ct. App. 1985), which require appellate counsel to advance a defendant’s 16 arguments even if the merits of the argument are questionable. 17 {48} Defendant filed a motion in limine requesting the district court preclude the 18 State from making any mention of the brass knuckles that were found in Defendant’s

25

1 truck. The parties stipulated that there would be no mention of the brass knuckles. 2 Contrary to the parties’ stipulation, the brass knuckles were mentioned twice at trial 3 during the State’s DNA analyst’s testimony. The State’s analyst mentioned the brass 4 knuckles when listing the items she received from the sheriff’s department, and again 5 when she listed the items she received that did not contain traces of blood. The State 6 then moved to have the analyst’s report admitted into evidence. Defendant objected 7 and requested a mistrial. The State argued that the analyst’s report did not advise the 8 jury as to whom the brass knuckles belonged, that the mention of the brass knuckles 9 was a mistake, and that the report did not link the brass knuckles to Defendant. 10 Defendant argued that because the report indicated that the brass knuckles came from 11 the Defendant’s truck, the jury could infer that the brass knuckles belonged to 12 Defendant. The district court denied Defendant’s request for a mistrial and ordered 13 that the portions of the DNA report mentioning the brass knuckles be redacted before 14 the report was submitted to the jury. 15 {49} The State asserts that Defendant’s argument is without merit as Defendant did 16 not object the first time the brass knuckles were mentioned, did not request that the 17 district court issue a curative instruction to the jury regarding the mention of the brass 18 knuckles, and failed to demonstrate how he was prejudiced by the mention of the brass

26

1 knuckles. The State further contends that because the analyst’s report was redacted 2 before it was given to the jury, and the DNA analyst only mentioned the brass 3 knuckles in passing, that the district court was correct in denying Defendant’s motion 4 for mistrial. 5 {50} This Court has recognized that the district court is in the best position to know 6 whether a miscarriage of justice warranting a mistrial has taken place. State v. 7 Sutphin, 107 N.M. 126, 130, 753 P.2d 1314, 1318 (1988). Because the district court 8 is in the best position to determine whether a mistrial would be appropriate, we 9 “review a [district] court’s denial of a motion for a mistrial under an abuse of 10 discretion standard.” State v. Gallegos, 2009-NMSC-017, ¶ 21, 146 N.M. 88, 206 11 P.3d 993 (internal citation and quotation marks omitted). Thus, in the absence of a 12 clearly erroneous decision, the district court’s decision whether to grant or deny a 13 party’s request for a mistrial is entitled to great weight. Sutphin, 107 N.M. at 130, 753 14 P.2d at 1318; see State v. Garcia, 2005-NMCA-042, ¶ 38, 137 N.M. 315, 110 P.3d 15 531 (applying an abuse of discretion standard of review when reviewing a district 16 court’s decision to grant or deny a mistrial). 17 {51} Because the portion of the DNA report referencing the brass knuckles was 18 redacted before it was presented to the jury, and because the DNA analyst’s testimony

27

1 only referenced the brass knuckles twice in passing, we conclude that Defendant has 2 failed to demonstrate that the DNA analyst’s mention of the brass knuckles gave rise 3 to a level of prejudice warranting a mistrial. See Sutphin, 107 N.M. at 130, 753 P.2d 4 at 1318 (providing that the power to declare a mistrial should be used with great 5 caution); see State v. Gonzales, 2000-NMSC-028, ¶ 37, 129 N.M. 566, 11 P.3d 131 6 (providing any prejudicial effect of inadmissible testimony is deemed to be cured 7 when the district court promptly admonishes the jury to disregard what it has heard) 8 (internal quotation marks and citation omitted), overruled on other grounds by 9 Tollardo, 2012-NMSC-008, ¶ 37 n.6. Accordingly, we conclude that the district court 10 did not abuse its discretion in denying Defendant’s motion for a mistrial. 11 D. Jury Instruction 12 {52} Defendant’s fourth issue on appeal is whether the district court improperly 13 instructed the jury on the elements of willful and deliberate murder. The jury 14 instruction issued in this case provided the following:

15 For you to find the Defendant guilty of First Degree Murder by a 16 deliberate killing as charged in Count 1, the State must prove to your 17 satisfaction beyond a reasonable doubt each of the following elements 18 of the crime:

19 (1) The Defendant killed [Victim]; 20 (2) The killing was the deliberate intention to take

28

1 away the life of [Victim];

2 (3) The [D]efendant was not intoxicated from the use 3 of alcohol at the time the offense was committed to 4 the extent of being incapable of forming an intent to 5 take away the life of another;

6 (4) This happened in New Mexico on or about the 7 2nd day of April, 2009.

8 A deliberate intention refers to the state of mind of the defendant. 9 A deliberate intention may be inferred from all of the facts and circumstances of the 10 killing. The word deliberate means arrived at or determined upon as a result of careful 11 thought and the weighing of the consideration for and against the proposed course of 12 actions. A calculated judgment and decision may be arrived at in a short period of 13 time. A mere unconsidered and rash impulse, even though it includes an intent to kill, 14 is not a deliberate intention to kill. To constitute a deliberate killing, the slayer must 15 weigh and consider the question of killing and his reason for and against such choice.

16 {53} Defendant claims the above underlined language misled the jury regarding the 17 intent element. The Uniform Jury Instruction, UJI 14-201 NMRA, on which the 18 above instruction is based, differs from the issued instruction by only one word. The 19 second element of UJI 14-201 provides: (2) The killing was with the deliberate 20 intention to take away the life of ____________(name of victim) [or any other human 21 being]. UJI 14-201 (emphasis added). Defendant claims the omission of the word 22 “with” from the second element of the jury instruction confused and misled the jury. 23 The State contends that the omission of the word “with” was not misleading and did

29

1 not relieve the jury of the need to find an essential element of the crime charged. The 2 State, therefore, contends that the jury instruction was sufficient as issued. 3 {54} The standard of review that applies when reviewing jury instructions depends 4 on whether the issue was preserved below. State v. Sandoval, 2011-NMSC-022, ¶ 13, 5 150 N.M. 224, 258 P.3d 1016. If the issue was properly preserved, then we will 6 review the instruction for reversible error. Id. If, on the other hand, the issue was not 7 preserved below, then we review the issue for fundamental error. Id. Under both 8 standards we must determine “whether a reasonable juror would have been confused 9 or misdirected by the jury instruction.” Id. ¶ 13 (internal quotation marks and citation 10 omitted). 11 {55} Defendant contends that, although the issue regarding the jury instruction was 12 not preserved below, the issued first-degree murder jury instruction misled the jurors 13 as to the element of intent, and therefore should be reviewed for fundamental error. 14 We have held that the “doctrine of fundamental error applies only under exceptional 15 circumstances and only to prevent a miscarriage of justice.” Barber, 2004-NMSC- 16 019, ¶ 8, 135 N.M. 62, 92 P.3d 633. An error is fundamental, when it goes to “the 17 foundation of the case or take[s] from the defendant a right which was essential to his 18 [or her] defense and which no court could or ought to permit him [or her] to waive.”

30

1 Id. (internal quotation marks and citations omitted). Fundamental error review, 2 therefore, is designed to see that a person’s fundamental rights are protected in every 3 case. Id. A court’s power to review for fundamental error, however, is to be exercised 4 guardedly and “never in aid of strictly legal, technical, or unsubstantial claims.” State 5 v. Traeger, 2001-NMSC-022, ¶ 18, 130 N.M. 618, 29 P.3d 518. In examining 6 whether the omission of the word “with” in the second element of the jury instruction 7 amounted to fundamental error, we must “determine whether a reasonable juror would 8 have been confused or misdirected by the jury instruction.” See Barber, 2004-NMSC- 9 019, ¶¶ 18-19. In evaluating the adequacy of a jury instruction, the jury instruction 10 must be considered as a whole, and if it substantially follows the language of the 11 statute or uses language that is equivalent to the statute, then it is sufficient. Id. ¶ 19. 12 {56} Section 30-2-1(A) defines murder in the first-degree as

13 the killing of one human being by another without lawful justification or 14 excuse, by any of the means with which death may be caused: (1) by any 15 kind of willful, deliberate, and premeditated killing; (2) in the 16 commission of or attempt to commit any felony; or (3) by any act greatly 17 dangerous to the lives of others, indicating a depraved mind regardless 18 of human life.

19 {57} The second element of the issued jury instruction which provided, “(2) The 20 killing was the deliberate intention to take away the life of Ron Hittson,” was not the 21 type of error that can be said to have confused or misled a reasonable jury regarding

31

1 the element of intent. The language contained in the issued instruction is equivalent 2 to both the Uniform Jury Instruction and the statute governing willful and deliberate 3 murder. See Section 30-2-1(A); UJI 14-201. Therefore, we conclude that the 4 omission of the word “with” from jury instruction number four was not the type of 5 omission that would have confused or misled a reasonable juror when determining 6 whether Defendant acted with the deliberate intention of taking Victim’s life. 7 Accordingly, this error does not give rise to the type of fundamental error that would 8 warrant reversal of the jury’s verdict. 9 E. Motions for Continuances 10 {58} Defendant’s fifth issue on appeal is whether the district court abused its 11 discretion when it denied two of his motions for continuance. 12 {59} A grant or denial of a motion for continuance is reviewed for an abuse of 13 discretion. State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 52 P.3d 135. The 14 decision to grant or deny “a continuance is within the sound discretion of the [district] 15 court, and the burden of establishing abuse of discretion rests with the defendant.” Id. 16 In establishing that the district court abused its discretion, the defendant must show 17 that not only was the ruling clearly against the logic and effect of the facts and 18 circumstances of the case, but that the abuse of discretion prejudiced the defendant.

32

1 Id. In establishing prejudice, a defendant need only show that the “[district] court’s 2 order may have made a potential avenue of defense unavailable to the defendant.” Id. 3 ¶16. However, “[w]hen reasons both supporting and detracting from a decision exist, 4 there is no abuse of discretion.” In re Camino Real Envtl. Ctr., Inc., 5 2010-NMCA-057,¶ 23, 148 N.M. 776, 242 P.3d 343. In State v. Torres, we held that 6 in determining whether a motion for continuance should be granted or denied, a trial 7 court should consider the following factors,

8 the length of the requested delay, the likelihood that a delay would 9 accomplish the movant’s objectives, the existence of previous 10 continuances in the same matter, the degree of inconvenience to the 11 parties and the court, the legitimacy of the motives in requesting the 12 delay, the fault of the movant in causing a need for the delay, and the 13 prejudice to the movant in denying the motion.

14 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20. 15 {60} We employ the above standards in our review of the district court’s denial of 16 Defendant’s motions for continuance. 17 1. Defendant’ s November 20, 2009, Motion for Continuance 18 {61} Defendant’s trial was originally scheduled for October 26, 2009. At the parties’ 19 September 18 status hearing, Defendant indicated that the October trial date might not 20 be feasible but did not request a continuance until the October 7 status hearing. At the 21 October 7 status hearing, the district court agreed to continue the trial until December

33

1 1, 2009, but expressed concerns about threats that were being made against witnesses 2 and possible attempts to intimidate witnesses. The State, relying on the new 3 December 1, 2009 trial date, issued twenty-one subpoenas. 4 {62} On November 20, 2009, Defendant again requested that the trial be continued 5 until February 2010, asserting that due to attorney resignations within the public 6 defenders’ office more time was needed to prepare for trial. Defendant also requested 7 the extension so as to allow time for more DNA testing to be conducted. Defendant 8 asserts that the motives behind the request were legitimate and would not have 9 inconvenienced any of the parties. 10 {63} The district court denied Defendant’s request for a February setting, but placed 11 the trial on a trailing docket with a tentative trial date of December 14, 2009, and a 12 firm trial date of March 1, 2010. In assigning the December 14, 2009 trial date, the 13 district court noted that from the date of the November 20, 2009, status hearing, 14 Defendant would have approximately three and a half weeks to prepare for trial. In 15 light of the continuance, the State had to notify witnesses and issue new subpoenas. 16 {64} Defendant asserts that the district court erred in denying his November 20, 17 2009, request for a continuance. The State asserts that Defendant has failed to 18 demonstrate that the trial court abused its discretion and has failed to provide any

34

1 information regarding what preparations trial counsel would have made during the 2 additional two month period or how he was prejudiced by the denial. The State, 3 therefore, maintains that based on the factors laid out by this Court in Torres, the 4 district court did not abuse its discretion in denying Defendant’s November 20, 2009, 5 motion for continuance. 6 {65} The district court held an hour long hearing regarding Defendant’s request for 7 a continuance, and concluded that based on the parties’ report of what needed to be 8 done before trial the parties should be prepared for trial by mid-December. The 9 district court judge stated that Defendant’s request for a continuance seemed to be 10 based more on personnel issues at the public defenders’ office than the fact he was not 11 prepared to go to trial on this case. The district judge further expressed concerns that 12 witnesses were being threatened. 13 {66} We conclude that the district court did not abuse its discretion in denying 14 Defendant’s November 20, 2009, motion for continuance. Prior to this motion 15 Defendant had requested and received one continuance, the State had issued its 16 subpoenas, and Defendant had not demonstrated how he would be prejudiced by the 17 denial of the continuance. Moreover, the district court provided Defendant with an

35

1 additional two-weeks to prepare for trial. Accordingly, we affirm the district court’s 2 denial of Defendant’s November 20, 2009, motion for a continuance. 3 2. Defendant’s December 14, 2009, Motion for Continuance 4 {67} On the morning the trial was set to begin, Defendant testified that he had 5 serious concerns regarding whether his current counsel was ready to proceed to trial 6 because he had only met with counsel three times. Defendant also expressed concerns 7 regarding the fact that counsel did not return his telephone calls. Defendant requested 8 a continuance to hire private counsel due to his concerns that the public defender had 9 not adequately prepared his case. Defendant asserts this issue pursuant to Franklin, 10 78 N.M. 127, 428 P.2d 982, and Boyer, 103 N.M. 655, 715 P.2d 1. 11 {68} The State asserts that a party’s desire to hire private counsel does not present 12 an independent basis for a continuance, and therefore the district court did not abuse 13 its discretion. The State contends that, although Defendant was aware of staffing 14 issues at the public defenders’ office since September 2009, he failed to raise his 15 concerns with the district court until the day trial was scheduled to begin, after all of 16 the witnesses had been subpoenaed, and after one hundred and twenty-nine 17 prospective jurors had appeared. The State, therefore, asserts that the district court did 18 not abuse its discretion in denying Defendant’s motion for continuance.

36

1 {69} Assessing the district court’s decision under the Torres factors, we conclude 2 that the district court did not abuse its discretion in denying Defendant’s motion. The 3 district court acknowledged that the public defender’s office was low on personnel, 4 but was satisfied that Defendant’s attorneys had been working hard on the case. 5 Therefore, the district court concluded that in light of the fact that it had previously 6 granted two continuances, another continuance was not warranted. 7 {70} We conclude that the district court did not abuse its discretion, and affirm the 8 district court’s denial of Defendant’s motion for a continuance to hire private counsel. 9 F. Non-Crime Scene Photo of Victim 10 {71} Defendant’s sixth issue on appeal is whether the district court erred in admitting 11 the non-crime scene photo of Victim. Defendant asserts that the non-crime scene 12 photo of Victim was irrelevant and should not have been admitted at trial. Defendant 13 further claims that even if the photograph was relevant, the photograph’s probative 14 value is substantially outweighed by the danger of unfair prejudice and should have 15 been excluded pursuant to Rule 11-403 NMRA. See Rule 11-403 NMRA (2009) 16 (“Although relevant, evidence may be excluded if its probative value is substantially 17 outweighed by the danger of unfair prejudice, confusion of the issues or misleading

37

1 the jury, or by considerations of undue delay, waste of time or needless presentation 2 of cumulative evidence.”). 3 {72} A district court’s decision to admit or exclude photographic evidence is 4 reviewed under an abuse of discretion standard and generally will not be disturbed on 5 appeal. See State v. Garcia, 2005-NMCA-042, ¶ 50, 137 N.M. 315, 110 P.3d 531 6 (recognizing that a district court “has great discretion in balancing the prejudicial 7 impact of a photograph against its probative value”); see State v. Johnson, 57 N.M. 8 716, 721-22, 263 P.2d 282, 285 (1953) (providing that the admission of a photograph 9 rests largely in the discretion of the trial judge and his decision will not be disturbed 10 on review unless an abuse of discretion is shown). A district court will only be 11 deemed to have abused its discretion if its decision was “clearly against the logic and 12 effect of the facts and circumstances of the case.” Garcia, 2005-NMCA-042, ¶ 38 13 (citation omitted). In the event that a district court abused its discretion by admitting 14 photographic evidence, a reviewing court applies a harmless error analysis in 15 reviewing the effect of the admission. See, e.g., id. ¶ 51 (providing whether the 16 district court erred in admitting the photographic evidence requires us to determine 17 whether the district court abused its discretion in admitting the photographic evidence, 18 and if so, whether that error was harmless).

38

1 {73} The State asserts that the district court did not err in admitting the non-crime 2 scene photograph of the victim because “New Mexico precedent supports the 3 admissibility of pictures of deceased victims while they are alive.” The State cites 4 State v. Upton, 60 N.M. 205, 209-10, 290 P.2d 440, 442 (1955), to support this 5 assertion. 6 {74} In Upton, the district court admitted two photographs of the victim after he had 7 been killed and one “photograph of the [victim], taken while he was alive.” 60 N.M. 8 at 209, 290 P.2d at 442. The defendant challenged the admission of the photographs 9 asserting that the photographs were “gruesome and inflammatory” and rendered the 10 jury incapable of being impartial. Id. We stated that the general principal adopted in 11 New Mexico is that “[p]hotographs which are calculated to arouse the prejudices and 12 passions of the jury and which are not reasonably relevant to the issues of the case 13 ought to be excluded.” Id. We concluded, however, that the three images were 14 neither gruesome nor inflammatory, and therefore the district court did not abuse its 15 discretion. Upton, 60 N.M. at 209-210, 290 P.2d at 442-443. 16 {75} In this case, the State wanted to show the jury a photograph of Victim that was 17 taken while he was alive. The original photograph offered by the State contained an 18 image of Victim holding a baby. Defendant objected to the photograph asserting it

39

1 was irrelevant and prejudicial. The district court allowed the photograph to be shown 2 to the jury during the State’s opening statements, but required the State to redact the 3 portion of the photograph containing the baby. The district court did not provide a 4 rationale for its ruling. However, because the ruling of the district court is presumed 5 valid and the burden is on the appellant to show that the district court abused its 6 discretion, a reviewing court will not substitute its discretion for that of the district 7 court even when the district court does not provide an explanation for its decision. 8 State v. Serrano, 76 N.M. 655, 659, 417 P.2d 795, 797 (1966). Therefore, when the 9 record is silent as to the reasons behind a district court’s ruling, “regularity and 10 correctness are presumed.” Id. 11 {76} In Garcia, the district court permitted a photograph of the deceased victim that 12 was taken while he was alive to be admitted into evidence on the ground that the state 13 was “entitled to humanize [the v]ictim.” 2005-NMCA-042, ¶ 49. In reviewing the 14 district court’s decision, the Court of Appeals recognized that there “may be instances 15 in which a photograph of a victim while alive [will serve] no legitimate purpose 16 [other] than to inflame the passions of the jury against a defendant.” Id. ¶ 51. 17 Nonetheless, the Court of Appeals affirmed the district court’s decision to admit the 18 photograph because the defendant had failed to point to any circumstances that would

40

1 remove the admission of the photograph from a fair humanization of the victim to the 2 realm of unfair prejudice. Id. 3 {77} Therefore, because “every presumption is indulged in favor of the correctness 4 and regularity of the decision of the court below,” Serrano, 76 N.M. at 659, 417 P.2d 5 at 797, and because we allow for a photo of a victim to be introduced into evidence 6 for the purpose of providing a fair humanization of the victim, Garcia, 2005-NMCA- 7 042, ¶ 49, we conclude that the district court did not abuse its discretion in admitting 8 the photograph of Victim. 9 G. Sufficiency of Evidence 10 {78} Pursuant to Franklin, 78 N.M. 127, 428 P.2d 982, and Boyer, 103 N.M. 655, 11 712 P.2d 1, Defendant asserts that there was insufficient evidence to support the 12 charges of first-degree murder, kidnapping, armed robbery, and tampering with the 13 evidence. 14 {79} “In reviewing the sufficiency of the evidence, [the evidence] must [be] view[ed] 15 . . . in the light most favorable to the guilty verdict, indulging all reasonable inferences 16 and resolving all conflicts in the evidence in favor of the verdict.” State v. 17 Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. The test for 18 determining the sufficiency of the evidence “is whether substantial evidence of either

41

1 a direct or circumstantial nature exists to support a verdict of guilt[y] beyond a 2 reasonable doubt with respect to every element essential to a conviction.” Sutphin, 3 107 N.M. at 131, 753 P.2d at 1319. “This [C]ourt does not weigh the evidence and 4 [does] not substitute its judgment for that of the fact finder so long as there is 5 sufficient evidence to support the verdict.” Id. Therefore, when there is substantial 6 evidence to support the conviction, the verdict will not be disturbed on appeal. Id. 7 1. First-Degree Murder Conviction 8 {80} Defendant asserts there was insufficient evidence to support his first-degree 9 murder conviction. In support of this assertion Defendant directs this Court’s 10 attention to State v. Garcia, 114 N.M. 269, 837 P.2d 862 (1992). In Garcia, the 11 defendant and the victim were at a party where the two men engaged in multiple 12 arguments before the defendant ultimately stabbed and killed the victim. 114 N.M. 13 at 270, 837 P.3d at 863. We held that “[t]here was no evidence enabling the jury to 14 find, beyond a reasonable doubt, that defendant had the requisite state of mind—a 15 ‘willful, deliberate and premeditated’ intention to kill [the victim]—to support a 16 conviction of first[-]degree murder.” 114 N.M. at 271, 837 P.2d at 864. We do not 17 find Garcia to be analogous to this situation. 18 {81} Section 30-2-1(A), defines murder in the first-degree as “the killing of one

42

1 human being by another without lawful justification or excuse, by any of the means 2 with which death may be caused: (1) by any kind of willful, deliberate, and 3 premeditated killing.” The requisite state of mind for first-degree murder, therefore, 4 is a “deliberate” intention to kill. Id.; see also UJI 14-201. Although the “word 5 deliberate means arrived at or determined upon as a result of careful thought and the 6 weighing of the consideration for and against the proposed course of action[,]” the 7 weighing required for deliberate intent “may be arrived at in a short period of time.” 8 UJI 14-201. Moreover, the jury may infer from circumstantial evidence that 9 defendant acted with the requisite intent as direct evidence of a defendant’s state of 10 mind is not required. See State v. Largo, 2012-NMSC-015, ¶ 31, 278 P.3d 532. 11 {82} Here, in order for the jury to convict Defendant of first-degree murder the State 12 had to prove beyond a reasonable doubt each of the following elements 13 1. The Defendant killed [Victim];

14 2. The killing was [with] the deliberate intention to take 15 away the life of [Victim];

16 3. The [D]efendant was not intoxicated from use of alcohol 17 at the time the offense was committed to the extent of being 18 incapable of forming an intent to take away the life of 19 another;

20 4. This happened in New Mexico on or about the 2nd day 21 of April, 2009.

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1 See UJI 14-201. The jury received sufficient evidence to find that Defendant 2 deliberated before killing Victim. The record indicates that after Victim exited the 3 company truck Defendant yelled to Vargas “let’s get him,” grabbed a cinder block 4 from the back of the truck, and headed in the direction of Victim. At trial, the 5 assistant chief of the Office of Medical Examiner testified that Victim received four 6 high impact blows to his head, which rendered him unrecognizable, and that Victim 7 had no defensive wounds on his body. Moreover, after Defendant and Vargas left 8 Victim, Defendant convinced Vargas to return to the location where they had left 9 Victim in order to ensure that Victim was in fact dead. Accordingly, we conclude that 10 there was substantial evidence to support Defendant’s first-degree murder conviction. 11 2. Kidnapping 12 {83} Defendant argues that the evidence presented at trial was insufficient to support 13 his kidnapping conviction. The State asserts that there was substantial evidence to 14 allow the jury to find that Defendant committed kidnapping by deception when 15 Defendant allowed Victim to believe they were driving out of town to purchase drugs. 16 See State v. Garcia, 100 N.M. 120, 125, 666 P.2d 1267, 1272 (Ct. App. 1983) 17 (providing that kidnapping by deception necessarily implies that the victim is not 18 aware that he or she is being kidnapped).

44

1 {84} Section 30-4-1(A)(4) defines kidnapping as the “unlawful taking, restraining, 2 transporting or confining of a person by force, intimidation or deception, with intent: 3 to inflict death, physical injury or a sexual offense on the victim.” Id. Therefore, in 4 order for Defendant to be found guilty of kidnapping, the State was required to prove 5 that Defendant “unlawful[ly took], restrain[ed], transport[ed] or confin[ed Victim] by 6 force, intimidation or deception, with intent to inflict death, physical injury or a sexual 7 offense on the victim.” Id. The term “deception,” as employed in our kidnapping 8 statute, embodies either affirmative acts intended to delude a victim or omissions that 9 conceal the intent and purpose of an accused which results in the victim being 10 unaware that he or she was being kidnapped. Garcia, 100 N.M. at 124, 666 P.2d at 11 1271 (providing that deception means “the act of deceiving; the intentional misleading 12 of another by actions or falsehood”). Kidnapping by deception, therefore, usually 13 results in the victim being denied the opportunity to exercise true free will or choice 14 and “the induced travel from one place to another will usually appear consensual, if 15 the [deception] is successful.” Id. 16 {85} The record reflects that the evidence was sufficient to allow a reasonable jury 17 to infer that Defendant committed kidnapping by deception when Defendant talked 18 to Victim about scoring drugs, pretended to make numerous phone calls leading

45

1 Victim to believe he was trying to set up a drug deal, allowed Victim to believe they 2 were heading to the dairies to “score” some drugs, and proceeded to quote Victim a 3 price for the fake drug deal. Looking at the evidence in the light most favorable to the 4 verdict, we conclude that there was sufficient evidence to support Defendant’s 5 conviction for kidnapping. Accordingly, we affirm Defendant’s kidnapping 6 conviction. 7 3. Armed Robbery 8 {86} Defendant argues that the evidence presented at trial was insufficient to support 9 his conviction for armed robbery. Defendant further asserts that he could not be found 10 guilty of armed robbery because the taking of the property occurred after Victim was 11 deceased. The State asserts that a defendant can commit the offense of armed robbery 12 regardless of whether the victim is dead or alive at the time the property was actually 13 removed from the victim’s person. The State therefore asserts that Defendant 14 committed armed robbery when Defendant, by force or violence, removed Victim’s 15 property from Victim’s person. 16 {87} Section 30-16-2 defines robbery as “the theft of anything of value from the 17 person of another or from the immediate control of another, by use or threatened use 18 of force or violence.” Id. A person who commits robbery “while armed with a deadly

46

1 weapon is, for the first offense, guilty of a second degree felony and, for second and 2 subsequent offenses, is guilty of a first degree felony.” Id. To convict Defendant of 3 armed robbery the State was required to prove beyond a reasonable doubt the 4 following elements:

5 1. The Defendant took and carried away a wallet and/or 6 money from [Victim] or from his immediate control 7 intending to permanently deprive [Victim] of the wallet 8 and/or money;

9 2. The Defendant was armed with an instrument or object 10 which, when used as a weapon, could cause death or very 11 serious injury; 12 3. The Defendant took the wallet and/or money by force or 13 violence;

14 4. The Defendant was not intoxicated from use of alcohol 15 at the time the offense was committed to the extent of being 16 incapable of forming an intention to permanently deprive 17 [Victim] of the wallet and/or money;

18 5. This happened in New Mexico on or about the 2nd day 19 of April, 2009.

20 See UJI 14-1621 NMRA. 21 {88} The evidence presented at trial would allow for a reasonable jury to infer that 22 after Defendant became aware of the amount of cash Victim had on his person, 23 Defendant formed the intent to deprive Victim of his property. This inference is 24 supported by the fact that after Defendant became aware of the amount of cash Victim

47

1 was carrying, Defendant pretended to place calls looking for drugs. When Victim 2 informed Defendant that the quoted price was too high, Victim then exited 3 Defendant’s work truck, at which point Defendant chased Victim down and hit him 4 over the head multiple times with a cinder block. Based on the trial testimony it is not 5 clear whether Defendant took Victim’s wallet from Victim’s person after he killed 6 Victim, or immediately before killing Victim. We conclude that the sequence of these 7 events is irrelevant in the present case because the killing and the robbery were part 8 of the same transaction of events. Other courts have reached similar conclusions and 9 have found that:

10 “[A]lthough, as an abstract principle of law, one ordinarily cannot be 11 guilty of robbery if the victim is a deceased person, this principle does 12 not apply where a robbery and homicide are a part of the same 13 transaction and are so interwoven with each other as to be inseparable. 14 If the taking was made possible by an antecedent assault, the offense is 15 robbery regardless of whether the victim died before or after the taking 16 of the property.”

17 James v. State, 618 S.E. 2d 133, 138 (Ga. Ct. App. 2005); see People v. Navarette, 66 18 P.3d 1182, 1207 (Cal. 2003) (providing that “[w]hile it may be true that one cannot 19 rob a person who is already dead when one first arrives on the scene, one can certainly 20 rob a living person by killing that person and then taking his or her property”). 21 {89} We conclude that although the record is unclear as to whether the deadly

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1 violence preceded the theft, such circumstances do not preclude a defendant from 2 being convicted of armed robbery where the killing and the taking of the property are 3 part of the same transaction of events. Therefore, looking at the evidence in the light 4 most favorable to the jury’s verdict, we conclude that the jury was presented with 5 sufficient evidence from which it could find Defendant guilty of armed robbery. 6 Accordingly, we affirm Defendant’s conviction. 7 4. Tampering with Evidence 8 {90} Tampering with evidence “consists of destroying, changing, hiding, placing or 9 fabricating any physical evidence with intent to prevent the apprehension, prosecution 10 or conviction of any person or to throw suspicion of the commission of a crime upon 11 another.” Section 30-22-5. Defendant asserts that there was insufficient evidence for 12 a jury to conclude that Defendant tampered with evidence in Curry County, and 13 therefore Curry County was not the proper venue to try this crime. In support of this 14 assertion Defendant relies on NMSA 1978, Section 30-1-14 (1963) which governs the 15 appropriate venue in which a criminal case is to be tried. Section 30-1-14 provides,

16 [a]ll trials of crime shall be had in the county in which they were 17 committed. In the event elements of the crime were committed in 18 different counties, the trial may be had in any county in which a material 19 element of the crime was committed. In the event death results from the 20 crime, trial may be had in the county in which any material element of 21 the crime was committed, or in any county in which the death occurred.

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1 {91} The State, also relying on Section 30-1-14, asserts that there was substantial 2 evidence from which a jury could infer that Defendant formed the intent to tamper 3 with evidence while he was in Curry County, and therefore Curry County was a 4 proper venue. In addition, the State relies on State v. Smith, in which this Court found 5 Bernalillo County to be a proper venue because there was substantial evidence that 6 Bernalillo was the county in which the defendant formed the intent to kill his victims. 7 92 N.M. 533, 537, 591 P.2d 664, 668 (1979). 8 {92} We conclude there was sufficient evidence that a material element of the crime 9 tampering with evidence occurred in Curry County. The record indicates that 10 Defendant told his co-worker, Soto, to get rid of Victim’s wallet as they were driving 11 out of Curry County to Roswell. Furthermore, the record suggests that Defendant 12 destroyed some of the DNA evidence the morning after he killed Victim as his co- 13 workers reported that they had seen him with a bucket, chemical bleach, and the 14 clothes he was wearing the night before. Curry County police later found a large trash 15 bin with jeans, boots, and a sweatshirt that had been bleached. Accordingly, we hold 16 that there was sufficient evidence for the jury to conclude beyond a reasonable doubt 17 that Defendant tampered with evidence in Curry County or formed the specific intent 18 to tamper with evidence in Curry County.

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1 H. Miranda Violation 2 {93} Defendant asserts he was subject to custodial interrogation without being 3 mirandized. The State asserts that this issue is moot as the statements made to police 4 were not introduced at trial. Defendant concedes that the statements were not 5 introduced at trial, and that this issue was raised pursuant to Franklin, 78 N.M. 127, 6 428 P.2d 982, and Boyer, 103 N.M. 655, 715 P.2d 1. 7 {94} “Miranda violations occur, if at all, only upon the admission of unwarned 8 statements into evidence at trial.” State v. Verdugo, 2007-NMSC-095, ¶ 16, 142 N.M. 9 267, 164 P.3d 966 (internal quotation marks and citation omitted). From our review 10 of the record, and the parties’ own admissions, it does not appear that the statements 11 made during that initial interview were admitted into evidence at trial. Therefore, we 12 hold Defendant’s Miranda rights were not violated. 13 I. Cumulative Error 14 {95} The doctrine of cumulative error only applies when “multiple errors, which by 15 themselves do not constitute reversible error, are so serious in the aggregate that they 16 cumulatively deprive the defendant of a fair trial.” State v. Salas, 2010-NMSC-028, 17 ¶ 39 (quoting State v. Roybal, 2002-NMSC-027, ¶ 33, 132 N.M. 657, 54 P.3d 61). 18 The doctrine shall not be applied “when the record as a whole indicates that the

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1 defendant received a fair trial.” Salas, 2010-NMSC-028, ¶ 39 (internal citation and 2 quotation marks omitted). Therefore, “[c]umulative error has no application if the 3 district court committed no errors and if the defendant received a fair trial.” State v. 4 Guerra, 2012-NMSC-014, ¶ 47, 278 P.3d 1031, 1042. Because we have concluded 5 that there were no errors and that Defendant received a fair trial, we thereby conclude 6 there was no cumulative error. 7 III. CONCLUSION 8 {96} For the reasons stated above we affirm Defendant’s convictions. 9 {97} IT IS SO ORDERED.

10 ___________________________________ 11 PETRA JIMENEZ MAES, Chief Justice

12 WE CONCUR:

13 ___________________________________ 14 RICHARD C. BOSSON, Justice

15 ___________________________________ 16 EDWARD L. CHÁVEZ, Justice

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1 ___________________________________ 2 CHARLES W. DANIELS, Justice

3 ___________________________________ 4 BARBARA J. VIGIL, Justice