State v. Ferran

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 Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. 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.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Filing Date: March 5, 2015 3 STATE OF NEW MEXICO, 4 Plaintiff-Appellee, 5 v. NO. 33,845 6 DONALD FERRAN, 7 Defendant-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 9 Sheri A. Raphaelson, District Judge

10 The Scarborough Law Firm 11 Juan Carlos Scarborough 12 Albuquerque, NM

13 Tony Scarborough 14 Santa Fe, NM

15 for Appellant

16 Gary K. King, Attorney General 17 Joel Jacobsen, Assistant Attorney General 18 Santa Fe, NM

19 for Appellee

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1 DECISION 2 VIGIL, Chief Justice. 3 {1} This is a capital appeal from Defendant’s two convictions for first degree 4 murder, contrary to NMSA 1978, Section 30-2-1(A) (1994), and single conviction for 5 tampering with evidence, contrary to NMSA 1978, Section 30-22-5 (2003). 6 Defendant raises seven arguments on appeal: (1) judicial and prosecutorial 7 misconduct during trial deprived him of his right to a fair trial; (2) his right to 8 confront one of the State’s witnesses against him was violated, depriving him of a fair 9 trial; the trial court erred in qualifying one of the State’s witnesses as an expert; (4) 10 the trial court erred in admitting hearsay testimony over Defendant’s objection; (5) 11 the trial court erred in denying Defendant’s motion for a directed verdict; (6) the 12 State’s evidence was insufficient to support Defendant’s convictions; and (7) 13 cumulative errors deprived Defendant of his right to a fair trial. For the reasons that 14 follow, we affirm Defendant’s convictions. We dispose of Defendant’s appeal by this 15 non-precedential decision because settled New Mexico law resolves the issues raised. 16 See Rule 12-405(B)(1) NMRA. 17 I. BACKGROUND 18 {2} Defendant was convicted of two counts of first degree murder for the February

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1 28, 2011, killings of Joey Maestas (Maestas) and Sara Salazar (Salazar) in Rio Arriba 2 County. He was also convicted of tampering with evidence for the destruction by fire 3 of the vehicle in which the bodies were found. The jury convicted Defendant based 4 largely on circumstantial evidence showing that Defendant killed Maestas and Salazar 5 at a rest stop and then set Maestas’ car ablaze with the two bodies inside of it. A 6 summary of the evidence presented at trial is set out below; additional facts and 7 procedural background are provided as needed throughout our discussion of the 8 individual issues. 9 {3} Defendant was a habitual drug user, and on February 27, 2011, he contacted 10 Maestas, who sold drugs and had previously provided cocaine to Defendant. That 11 evening, Defendant went to Maestas’ house, where Maestas, Salazar, and two of 12 Maestas’ friends were present. Defendant was known to carry a .22 caliber pistol and 13 was seen carrying a gun that night. Defendant left Maestas’ house after a period, but 14 later, sometime between 12:00 and 2:00 a.m., Defendant again called Maestas, telling 15 him that he was at a rest area and needed assistance because he had run out of gas. 16 Maestas agreed to go to the rest area to help Defendant. Maestas left his home, 17 accompanied by Salazar, and picked up Defendant. The three of them returned to 18 Maestas’ home, retrieved a gas can, and departed again around 2:00 a.m. Maestas was

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1 last heard from at approximately 2:36 a.m., when he called another individual and 2 stated that he, Salazar, and Defendant were near the rest stop. 3 {4} Approximately one hour later, at 3:35 a.m., police and firefighters were 4 dispatched in response to a vehicle fire at the rest stop. The vehicle, Maestas’ 2000 5 Honda Accord, was completely engulfed in flames. While firefighters were fighting 6 the blaze, someone noticed the victims’ bodies inside the burning vehicle. The body 7 of one of the victims, later identified as Maestas, was found laying face down across 8 the back seat with a gunshot wound to the head. Forensic evidence established that 9 he died from the gunshot wound prior to the fire being started and that the bullet was 10 a .22 caliber bullet. Salazar was found in the driver’s seat, but it was impossible to tell 11 whether she had also been shot because of the fire damage to her body, which was so 12 severe that the top portion of her head was gone. Expert testimony concerning 13 Salazar’s autopsy revealed that she was already dead or dying before the fire, and her 14 death was determined to have been caused by “homicidal violence of unknown 15 cause.” The fire investigator later testified that his conclusion was that the fire was 16 “incendiary,” that is, deliberately started. 17 {5} Sometime after the fire was put out, the hood of Maestas’ vehicle was opened 18 and police and firefighters noticed that the battery was missing. There was no

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1 evidence that the battery had melted or was otherwise burned up in the fire. Since 2 Maestas had been able to drive his car to the rest stop that night and there was no 3 evidence that the battery was destroyed in the fire, investigators concluded that it had 4 been removed while the car was at the rest stop. Investigators later retrieved a car 5 battery from the front seat of Defendant’s Jeep. A second battery, which did not fit 6 properly, was found under the hood of his Jeep. This second battery, a red and black 7 “Duralast” branded car battery, was the type commonly manufactured to fit a 2000 8 Honda Accord, the same make and model as Maestas’ vehicle that was burned. 9 Evidence showed that sometime prior to February 27, Defendant had traded a red and 10 black “Duralast” branded car battery to Maestas for cocaine. 11 {6} Further investigation of Maestas’ burned vehicle revealed that the vehicle’s gas 12 cap was missing. Testimony presented at trial was inconclusive as to what might have 13 happened to the cap, but two gas caps matching the size and type used on a Honda 14 Accord were discovered in Defendant’s Jeep. 15 {7} The police also recovered a .22 caliber bullet casing from the center console 16 of the burned vehicle , and ballistics evidence established that the bullet was fired 17 from the .22 caliber pistol Defendant was known to carry. Brian Nelson, a friend of 18 Defendant’s, testified that Defendant regularly shot the .22 caliber pistol at Nelson’s

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1 house and that Defendant was the only person to shoot a .22 caliber there. Police 2 recovered a .22 caliber casing from Nelson’s house , as well as a .22 caliber casing 3 from Defendant’s Jeep. Ballistics evidence confirmed that the casings found in the 4 burned vehicle, at Nelson’s house, and in Defendant’s Jeep were all fired from the 5 same .22 caliber pistol, but the police never recovered that .22 caliber pistol. Nelson 6 testified that Defendant told him that he had gotten rid of his .22 after the murders. 7 {8} Finally, evidence was presented which suggested that Defendant instructed his 8 mother to lie and tell police that he had returned home around midnight. Defendant’s 9 mother testified that she heard Defendant’s Jeep arrive home between 12:00 a.m. and 10 1:00 a.m. However, she did not hear Defendant come inside the house. Phone records 11 showed that Defendant’s mother called him after 4:30 a.m. Defendant’s mother 12 testified that she called to ask where he was, after realizing he was not home. On the 13 afternoon of the 28th, Defendant sent a text message to his mother stating “I[ ]got 14 home at 12 last nite [sic].” She replied with confirmation that she had told the police 15 that he had been home, but that she did not give them a time because she did not 16 know what time he had arrived. She testified that she did not actually see Defendant 17 arrive home until sometime between 5:00 a.m. and 6:00 a.m. 18 II. DISCUSSION

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1 A. Alleged Judicial and Prosecutorial Misconduct Did Not Deprive Defendant 2 of a Fair Trial

3 {9} Defendant argues that judicial and prosecutorial misconduct deprived him of 4 a fair trial. Defendant did not preserve this argument below, and thus concedes that 5 the applicable standard of review is fundamental error. See Rule 12-216(A) NMRA 6 (“To preserve a question for review it must appear that a ruling or decision by the 7 district court was fairly invoked[.]”).“Even if the defendant did not raise proper 8 objections at trial, he may be entitled to relief if the errors of which he complains on 9 appeal constituted . . . fundamental error.” State v. Lucero, 1993-NMSC-064, ¶ 12, 10 116 N.M. 450, 863 P.2d 1071 (internal quotation marks and citation omitted); see 11 also Rule 12-216(B) (“This rule shall not preclude the appellate court from 12 considering . . . in its discretion, questions involving: . . . fundamental error or 13 fundamental rights of a party.”). “The doctrine of fundamental error is to be resorted 14 to in criminal cases only for the protection of those whose innocence appears 15 indisputably, or open to such question that it would shock the conscience to permit 16 the conviction to stand.” Lucero, 1993-NMSC-064, ¶12 (internal quotation marks and 17 citation omitted). “In determining whether a judge has exceeded the bounds of 18 acceptable conduct, the proceedings must be viewed as a whole. The critical inquiry 19 is whether the trial judge’s behavior was so prejudicial that it denied [the appellants]

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1 a fair, as opposed to a perfect[,] trial.” State v. McDonald, 1998-NMSC-034, ¶ 16, 2 126 N.M. 44, 966 P.2d 752 (alterations in original) (internal quotation marks and 3 citations omitted). 4 {10} Defendant argues that alleged misconduct resulted in an unfair trial and 5 ineffective assistance of counsel. Defendant points to discussions on certain 6 evidentiary rulings at trial as the basis for his claim of judicial misconduct. First, 7 Defendant alleges that the trial judge inappropriately chastised defense counsel for 8 his cross-examination of New Mexico State Police Investigations Agent Eric Moya, 9 and challenged defense counsel’s personal integrity in front of the jury. However, 10 Defendant fails to acknowledge that the first of these conversations actually happened 11 during a bench conference, and the second took place after the jury was excused. 12 Defendant cites to another instance during which he claims the trial judge “loudly and 13 verbally criticize[d] and upbraid[ed] defense counsel,” “out loud in earshot of the 14 jury.” Again, this particular exchange occurred during a bench conference. Defendant 15 also asserts that the trial judge displayed improper body language toward defense 16 counsel. The State points out that the trial judge’s body language is not part of the 17 transcript and is not supported by the record. Defendant argues that these instances 18 demonstrated the trial judge’s bias against Defendant and his counsel and prejudiced

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1 the jury against Defendant. 2 {11} Defendant cites Bufford v. Rowan Companies, Inc., 994 F.2d 155, 158 (5th Cir. 3 1993) for the proposition that “[t]he court must take great care not to . . . give the 4 impression to the jury that it approves or condones any unjustified impugning of the 5 ethical standards or integrity of an officer of the court practicing before it.” In 6 Bufford, the Fifth Circuit held that the conduct of defense counsel and the trial judge 7 denied the plaintiffs a fair trial. Id. at 157. There, defense counsel alleged in his 8 opening statement that plaintiffs’ counsel had fabricated or exaggerated the plaintiffs’ 9 injuries. Id. at 157. The defense had no evidence of such allegations. Id. at 158. In 10 addition, the trial judge later threatened to jail plaintiffs’ counsel for a retort he made 11 in response to the judge’s evidentiary ruling. Id. at 158-59. The judge’s threat was 12 heard by the jury. Id. at 159. Bufford is not factually analogous to the present case. 13 Here, unlike in Bufford, the prosecutor did not accuse defense counsel of unethical 14 behavior in front of the jury. In addition, although the trial judge in this case did 15 chastise defense counsel for repeatedly attempting to pursue questions which the 16 judge had already prohibited, there is no evidence that such admonitions were 17 inappropriate, nor that the jurors heard any of these exchanges. 18 {12} Defendant also cites United States v. McDonald, 620 F.2d 559 (5th Cir. 1980)

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1 in support of his claim of judicial misconduct. The McDonald Court found that the 2 fairness of the trial against the defendant was compromised where the prosecutor 3 suggested during a direct examination that defense counsel was present while the 4 defendant destroyed incriminating evidence. Id. at 562, 564. Defendant’s reliance on 5 McDonald is misplaced. Here, Defendant points to no evidence that either the 6 prosecutor or the court falsely accused defense counsel of any wrongdoing, or that the 7 jury heard such an accusation. 8 {13} We find the reasoning in Harris v. United States, 367 F.2d 633 (1st Cir. 1966) 9 applicable here. The Harris Court held that where “the alleged disparaging remarks 10 complained of were made during bench conferences with counsel and there is no 11 showing that they were heard by the jury[,] . . . we cannot say that these remarks 12 prejudiced the defendant’s case or amounted to a denial of a fair trial as he claims.” 13 Id. at 636. Likewise here, because Defendant cannot demonstrate that any allegedly 14 disparaging remarks were heard by the jury, we cannot find that he was prejudiced 15 by such remarks. 16 {14} Defendant refers to alleged prosecutorial misconduct, but fails to develop any 17 argument or cite any specific examples of such misconduct. Therefore, we do not 18 review this claim. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,

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1 676 P.2d 1329 (“Issues raised in appellate briefs which are unsupported by cited 2 authority will not be reviewed by us on appeal.”).

3 B. Defendant’s Confrontation Rights Were Not Violated During Cross- 4 Examination of Agent Moya

5 {15} Defendant argues that the trial court limited his counsel’s ability to cross- 6 examine one of the State’s witnesses, thereby depriving him of his constitutional right 7 to confront this witness. Defense counsel attempted to elicit testimony from Agent 8 Moya, the State Police agent who lead the investigation in this case, concerning a 9 man named George Roybal. Defense counsel asserted that, according to a search 10 warrant affidavit prepared by Agent Moya, Roybal allegedly told Moya or another 11 state police officer that Maestas tried to obtain a gun from him for protection. 12 Apparently Defendant’s alternative theory of the case is that there was bad blood 13 between Maestas and another drug dealer named Zachary Pacheco, that Pacheco had 14 previously tried to harm Maestas, and that Maestas sought the weapon from Roybal 15 to protect himself from future harm by Pacheco. The inference to be drawn from this 16 alternative theory appears to be that it was Pacheco that was responsible for the 17 murders and not Defendant. 18 {16} The State objected to defense counsel’s inquiry on cross-examination of Agent 19 Moya, asserting that any inquiry about Roybal would be hearsay and would

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1 improperly put irrelevant information before the jury. Defense counsel stated that his 2 intended questioning would not concern the content of Agent Moya’s conversation 3 with Roybal, but instead would address Agent Moya’s decision not to add Roybal to 4 a list of people whose phone numbers were included in a search warrant as part of the 5 investigation. The trial court voiced concerns that defense counsel was attempting to 6 embed facts in his inquiry of Agent Moya that had no proper foundation, were 7 inadmissible hearsay, and which no other evidence would establish were relevant to 8 the case. The trial court ruled that defense counsel could ask why Roybal was not 9 included on the list, but could not ask about any statement made by Roybal about 10 Maestas looking for a gun or about any incident between Pacheco and Maestas. 11 Defense counsel attempted to make a proffer of the evidentiary basis for his 12 questioning, but the trial court determined that he would be allowed to ask his 13 proposed question, and therefore the issue was solved and no proffer was necessary. 14 Defendant now argues that the trial court’s ruling improperly limited his ability to 15 effectively cross-examine Agent Moya and violated his confrontation rights. 16 {17} “[W]e review de novo the question of whether the Confrontation Clause has 17 been violated.” State v. Smith, 2001-NMSC-004, ¶ 19, 130 N.M. 117, 19 P.3d 254. 18 The trial court has “wide latitude insofar as the Confrontation Clause is concerned to

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1 impose reasonable limits on . . . cross-examination based on concerns about, among 2 other things, harassment, prejudice, confusion of the issues, the witness’ safety, or 3 interrogation that is repetitive or only marginally relevant.” Id. (omission in original) 4 (internal quotation marks and citation omitted). “Only when cross-examination is 5 unduly restricted does constitutional error result.” Id. 6 {18} The trial court did not unduly restrict defense counsel’s ability to cross- 7 examine Agent Moya in this case. In fact, it does not appear that the trial court limited 8 defense counsel’s questioning at all. Defense counsel told the trial court that he 9 planned to ask why Roybal’s phone number was not included in the search warrant, 10 and the trial court ruled that he was allowed to do so. However, the trial court 11 maintained concern that defense counsel would attempt to ask Agent Moya about the 12 conversation with Roybal, despite the fact that nothing was presented on direct 13 testimony concerning such a conversation and no other evidence established that the 14 conversation would be relevant. The trial court’s advisement not to ask about the 15 conversation did not limit the scope of defense counsel’s questioning because defense 16 counsel assured the trial court that he did not intend to do so anyway. 17 {19} Further, as the State points out, even if defense counsel had expressed an 18 intention to go into this line of questioning, any out-of-court statements made by

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1 Roybal would have been inadmissible on hearsay grounds. See Rule 11-801(C) 2 NMRA (defining “hearsay” as a statement made outside the court proceeding and 3 offered in court to prove the truth of the matter asserted); Rule 11-802 NMRA 4 (providing that hearsay is inadmissible unless it falls within an exception in the rules 5 or statutes). Roybal’s statements to Agent Moya were made outside of trial and, in 6 order to support Defendant’s theory, would have been offered for their truth–that 7 Maestas had in fact approached Roybal about obtaining a weapon to protect himself 8 from Pacheco. 9 {20} We also point out that defense counsel failed to include Roybal as a defense 10 witness so that he could be directly questioned about his knowledge of any bad blood 11 between Pacheco and Maestas. Given that Defendant’s theory of the case seemed to 12 rest on the presence of such bad blood, it is unclear why he did not call the one person 13 believed to have first-hand knowledge of the dispute. Regardless, Defendant fails to 14 demonstrate that the trial court improperly limited his ability to cross-examine Agent 15 Moya, and therefore we find no violation of his confrontation rights. 16 C. Fire Marshal Dan Wright’s Expert Testimony Was Properly Admitted 17 {21} Defendant argues that Deputy Fire Marshal Dan Wright was not qualified as 18 an expert witness and should not have been allowed to testify. Defendant appears to

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1 intertwine two separate arguments in relation to Wright’s testimony. First, Defendant 2 argues that Wright was not qualified to testify as an expert in fire investigation based 3 on training, education, or experience. Second, Defendant argues that Wright’s 4 testimony was based on theories and methods not commonly accepted by the relevant 5 scientific community. Each of these arguments is addressed in turn. 6 {22} “The rule in this State has consistently been that the admission of expert 7 testimony or other scientific evidence is peculiarly within the sound discretion of the 8 trial court and will not be reversed absent a showing of abuse of that discretion.” 9 State v. Alberico, 1993-NMSC-047, ¶ 58, 116 N.M. 156, 861 P.2d 192. “The trial 10 judge has wide discretion to determine whether a witness is qualified to give 11 testimony as an expert, and no set criteria can be laid down to test [an expert’s] 12 qualifications.” McDonald, 1998-NMSC-034, ¶ 19 (alteration in original) (internal 13 quotation marks and citations omitted). 14 {23} Defendant argues that “Wright was incompetent and not qualified by reason of 15 education, training or experience to give a Daubert scientific opinion about 16 anything,” citing Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993). “Under 17 Rule 11-702 NMRA, a witness must qualify as an expert in the field for which his or 18 her testimony is offered before such testimony is admissible.” State v. Torrez,

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1 2009-NMSC-029, ¶ 15, 146 N.M. 331, 210 P.3d 228 (internal quotation marks and 2 citation omitted); see also Rule 11-702 NMRA (“A witness who is qualified as an 3 expert by knowledge, skill, experience, training, or education may testify in the form 4 of an opinion or otherwise if the expert’s scientific, technical, or other specialized 5 knowledge will help the trier of fact to understand the evidence or to determine a fact 6 in issue.”). In his brief, Defendant relies on a selective presentation of Wright’s 7 testimony about his training and experience as support for his claim that Wright was 8 unqualified, but fails to articulate any argument that those pieces of Wright’s 9 testimony demonstrate that Wright was not qualified to testify as an expert. 10 {24} The State called Wright, who testified that he was currently employed by the 11 Fire Investigation Bureau of the State Fire Marshal’s Office, and that he had worked 12 there for a total of eight or nine years. Wright testified that he had been a volunteer 13 firefighter for about twenty-eight years, and had also been employed as a car 14 mechanic during those years. Wright stated that he began working at the State Fire 15 Marshal’s Office as an investigator, and eventually worked his way up to Chief 16 Investigator. He testified that in order to become a fire investigator, he was required 17 to work for one year under probation, during which he always worked with another 18 investigator, and he was also required to have worked on at least fifty fires before he

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1 could work alone. Additionally, Wright attended a two-week course in fire 2 investigation at the National Fire Academy. Wright also had experience as a Fire 3 Service Instructor, teaching others to investigate fires. 4 {25} After Wright testified extensively about his usual investigation methods and 5 his investigation of this particular scene, the State moved his admission as an expert 6 in fire investigation. Defendant objected to his admission as an expert. The trial court 7 held a bench conference, during which Defendant argued that “[Wright] doesn’t have 8 the education, training, or experience to express expert opinions in this subject matter 9 of causation of a fire. . . . He’s incompetent to give a Daubert scientific opinion about 10 anything. . . . [H]e’s . . . barely qualified to render a lay opinion.” The trial court 11 ruled, over Defendant’s objection, that Wright would be allowed to testify as an 12 expert on fire investigation based on his training and experience. 13 {26} This Court has “emphasized the use of the disjunctive ‘or’ in Rule 11-702 in 14 recognizing the wide discretion given the trial court in qualifying experts to testify.” 15 Torrez, 2009-NMSC-029, ¶ 15; see also Rule 11-702 (providing that experts may be 16 qualified by “knowledge, skill, experience, training, or education” if their “scientific, 17 technical, or other specialized knowledge” will assist the fact-finder (emphasis 18 added)). In Torrez, the defendant claimed that a police detective, who was admitted

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1 to testify as an expert in gang-related law enforcement, was not properly qualified to 2 offer expert testimony. 2009-NMSC-029, ¶ 16. The defendant based his argument on 3 various factors, including that the detective:

4 (1) did not have personal knowledge of Taos area gangs; (2) did not 5 have a college degree; (3) had not previously testified as an expert 6 before a jury; (4) had never worked undercover in a gang unit; (5) had 7 not published any materials that were subject to peer review; and (6) 8 could not point to any recognized field of study that sought to determine 9 why gang members assault one another.

10 Id. The record reflected that the detective possessed several qualifications, including 11 years of experience, his various certifications, and the fact that he had authored 12 various training manuals in his field. Id. ¶ 17. This Court found that “Rule 11-702 13 expressly allows experts to be qualified based on their skills and experience, and [the 14 detective’s] experience with gangs was sufficient to allow his testimony on this 15 subject.” Id. ¶ 18. This Court held that “[b]ased on these qualifications, we cannot say 16 that the trial court abused its discretion in qualifying [the detective] as an expert on 17 gang-related law enforcement and gang culture.” Id. 18 {27} Torrez supports the State’s argument that Wright was qualified to testify as an 19 expert in fire investigation in this case. Wright’s qualifications as an expert based on 20 training and experience are similar to the qualifications of the detective’s in Torrez: 21 several years of experience, various training courses, and experience as a trainer of

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1 other fire investigators. See id. ¶ 17. Further, as this Court noted in Torrez, “the jury 2 was free to weigh every aspect of [the detective’s] qualifications in their evaluation 3 of his testimony, and any perceived deficiencies in his qualifications were relevant 4 to the weight accorded by the jury to [the] testimony and not to the testimony’s 5 admissibility.” Id. ¶ 18 (second alteration in original) (internal quotation marks and 6 citation omitted). For the same reasons we found that the detective in Torrez was 7 properly admitted as an expert, we conclude that Wright was properly admitted as an 8 expert in this case. Any potential deficiencies in his qualifications were relevant to 9 the weight to be afforded to his testimony, not to its admissibility. 10 {28} Second, Defendant argues that Wright’s testimony was not based on reliable 11 scientific methods. Defendant takes issue with various techniques Wright used in his 12 investigation, arguing that “Wright’s testimony, statements, and opinions lack 13 scientific and evidentiary validity and reliability.” The State correctly notes that 14 although Defendant said the word “Daubert” during his objection at trial to Wright’s 15 admission as an expert, Defendant did not object to any of Wright’s testimony about 16 his investigation. At no point during Wright’s testimony about the investigation did 17 Defendant object to the reliability of his methods. In fact, the only objection 18 Defendant made, other than objecting generally to Wright’s admission as an expert,

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1 was to the use of a picture of a car battery that had been in a fire in another, unrelated 2 case, and that objection was sustained. The State argues that because Defendant failed 3 to object to Wright’s testimony about his investigation techniques, Defendant failed 4 to preserve the issue for appeal. 5 {29} “To preserve a question for review it must appear that a ruling or decision by 6 the district court was fairly invoked.” Rule 12-216(A). “[I]t is a fundamental rule of 7 appellate practice and procedure that an appellate court will consider only such 8 questions as were raised in the lower court.” State v. Gomez, 1997-NMSC-006, ¶ 14, 9 122 N.M. 777, 932 P.2d 1 (internal quotation marks and citation omitted). If the 10 opposing party fails to timely object to or move “to strike the expert testimony in 11 question, the issue is not preserved for appellate review.” State v. Foster, 1999- 12 NMSC-007, ¶ 43, 126 N.M. 646, 974 P.2d 140, abrogated on other grounds by State 13 v. Frazier, 2007-NMSC-032, ¶¶ 31-35, 142 N.M. 120, 164 P.3d 1. Defendant does 14 not argue that the issues he raises concerning the reliability of Wright’s testimony 15 under Daubert amount to fundamental error such that they may be reviewed. 16 Accordingly, Defendant failed to preserve his Daubert claims for review. 17 {30} Nonetheless, we discuss Defendant’s claim that Wright’s testimony was 18 unreliable. Defendant seems to “confuse[] the standards applicable to determining the

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1 admissibility of expert scientific testimony with those for admitting expert testimony 2 based on the specialized knowledge of the expert witness.” Torrez, 2009-NMSC-029, 3 ¶ 20. New Mexico courts “limit[] the requirements of Daubert/Alberico to testimony 4 that requires scientific knowledge [and hold] that application of the Daubert factors 5 is unwarranted in cases where expert testimony is based solely upon experience or 6 training.” Banks v. IMC Kalium Carlsbad Potash Co., 2003-NMSC-026, ¶ 19, 134 7 N.M. 421, 77 P.3d 1014 (internal quotation marks and citations omitted). Defendant 8 lists the Daubert factors used to evaluate the evidentiary reliability of scientific 9 testimony, but fails to note that “application of the Daubert factors is unwarranted in 10 cases where expert testimony is based solely upon experience or training.” State v. 11 Torres, 1999-NMSC-010, ¶ 43, 127 N.M. 20, 976 P.2d 20 (internal quotation marks 12 and citation omitted). 13 {31} “[T]he initial determination of whether to apply the Alberico-Daubert standard 14 entails a conclusion of law that is subject to de novo review.” Torres, 1999-NMSC- 15 010, ¶ 28. Since we have determined that Wright’s testimony was based on his 16 training and experience, and not on scientific knowledge, the Alberico-Daubert 17 standard is not applicable. “[W]hen testing the reliability of non-scientific expert 18 testimony, rather than testing an expert’s scientific methodology as required under

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1 Daubert and Alberico, the court must evaluate a non-scientific expert’s personal 2 knowledge and experience to determine whether the expert’s conclusions on a given 3 subject may be trusted.” Torrez, 2009-NMSC-029, ¶ 21. “[E]ven with non-scientific 4 expert testimony, the trial court must exercise its gate-keeping function and ensure 5 that the expert’s testimony is reliable.” Id. ¶ 21. “We review the trial court’s 6 admission of expert testimony for an abuse of discretion.” Id. ¶ 9. 7 {32} Defendant does not provide any argument explaining why Wright’s testimony 8 is unreliable under the test for a non-scientific expert’s opinion testimony. “While this 9 inquiry is similar to a determination of whether an expert is qualified to opine on a 10 given subject, the two inquiries are not identical.” Id. ¶ 22. In order to present non- 11 scientific opinion testimony, the expert must have sufficient knowledge and 12 experience to form a reliable opinion, and the testimony must prove what it purports 13 to prove. Id. ¶¶ 22-23. Based on Wright’s experience as a fire investigator and trainer 14 with the State Fire Marshal’s Office, the trial court did not abuse its discretion in 15 admitting his testimony about fire investigation for purposes of proving the cause of 16 the fire.

17 D. The Trial Court Did Not Err by Admitting Out-of-Court Statements of 18 State Witnesses

19 {33} Defendant argues that the trial court erred by admitting the testimony of two

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1 witnesses, which Defendant argues was impermissible hearsay. First, Defendant 2 argues that the trial court erred by allowing Marcos Valdez (Valdez) to testify that 3 Maestas received a phone call from Defendant about being out of gas and requesting 4 Maestas’ assistance. Valdez testified that he was awoken by the sound of Maestas’ 5 voice on the night, or during the early morning, of the murders. Valdez stated that he 6 heard Maestas talking on the phone, then heard Maestas tell Valdez’s brother, Andres 7 Baca (Baca), that Defendant had called Maestas and told him he was out of gas. 8 Valdez testified that Maestas said he could not “leave [Defendant] shafted like that” 9 and that Maestas asked Baca if he wanted to go with him to pick up Defendant. 10 Defendant argues that these out-of-court statements were offered to prove that 11 Maestas received a call from Defendant about being out of gas and needing Maestas’ 12 assistance. The trial court admitted the testimony as a present sense impression 13 exception to the rule requiring the exclusion of hearsay testimony. 14 {34} Defendant also argues that the trial court improperly admitted hearsay 15 testimony of Jose Lovato (Lovato). Lovato testified that Maestas called Lovato and 16 told him that Maestas had received a call from Defendant about being out of gas. 17 Lovato also testified that Maestas asked him to accompany Maestas in assisting 18 Defendant because Maestas said he did not trust Defendant. Defense counsel objected

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1 to the introduction of Lovato’s testimony, but the trial court overruled Defendant’s 2 objection, finding that it was not hearsay because it was not being offered to prove 3 the truth of the matter asserted, namely that Defendant had run out of gas. The State 4 also argued that Lovato’s testimony was admissible because it qualified under the 5 present sense impression exception to the rule against hearsay, but the trial court 6 ruled that the testimony was “not even hearsay.” On appeal, Defendant does not argue 7 that the testimony was hearsay nor does he articulate why the trial court’s ruling was 8 legally erroneous. Instead, Defendant argues that Lovato’s testimony should not have 9 been admitted because it was “nothing more than unsubstantiated narrative” and 10 “inherently untrustworthy.” 11 {35} “We review the admission of evidence for an abuse of discretion” and note that 12 “trial courts have broad latitude in exercising their discretion under this rule.” State 13 v. Chavez, 2008-NMCA-125, ¶ 9, 144 N.M. 849, 192 P.3d 1226. “An abuse of 14 discretion occurs when the ruling is clearly against the logic and effect of the facts 15 and circumstances of the case. We cannot say the trial court abused its discretion by 16 its ruling unless we can characterize it as clearly untenable or not justified by reason.” 17 State v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641 (internal 18 quotation marks and citation omitted). Hearsay is an out-of-court statement offered

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1 into “evidence to prove the truth of the matter asserted in the statement.” Rule 2 11-801(C). Hearsay is generally inadmissible, unless it falls within an exception 3 prescribed in the rules of evidence. Rule 11-802. Rule 11-803(1) NMRA provides 4 that the following is excepted from the rule against hearsay, regardless of whether the 5 declarant is available as a witness: “Present sense impression. A statement describing 6 or explaining an event or condition, made while or immediately after the declarant 7 perceived it.” 8 {36} The trial court did not abuse its discretion in admitting Valdez’s testimony. The 9 trial court correctly ruled that Maestas’ out-of-court statements included in Valdez’s 10 testimony qualified as present sense impressions because they explained the event, 11 the phone call from Defendant about being out of gas, while, or immediately after, 12 Maestas received the call. Further, “[a]lthough independent corroboration is not a 13 foundational requirement for admission, it may be a factor in the trial judge’s exercise 14 of discretion in admitting the hearsay.” Flores, 2010-NMSC-002, ¶ 54. Here, the trial 15 court had other evidence with which to support its admission of Valdez’s statements. 16 First, Defendant actually admitted during his first interview with police that he had 17 called Maestas, claiming that he had run out of gas, though Defendant told the officer 18 that he made the phone call as a favor to Maestas, who supposedly wanted an excuse

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1 to leave with Salazar. Additionally, Baca’s direct testimony that Defendant returned 2 with Maestas and Salazar to retrieve a gas can corroborated statements indicating that 3 Maestas responded to Defendant’s call for assistance, and therefore supported the 4 trial court’s finding that the testimony was admissible as a valid present sense 5 impression. 6 {37} With respect to Lovato’s testimony, the trial court did not abuse its discretion 7 in ruling that it was not hearsay because it was not offered to prove that Defendant 8 actually did run out of gas. Whether or not he actually did run out of gas was 9 irrelevant, as the trial court found, and in fact, Defendant told police himself that the 10 gas ploy was a ruse all along. 11 E. Defendant’s Motion for a Directed Verdict was Properly Denied 12 {38} At the close of the State’s case-in-chief, defense counsel moved for a directed 13 verdict, which the trial court denied. The trial court found that the State had presented 14 sufficient evidence to go to the jury on all of the counts for which Defendant was 15 eventually convicted. After the State rested, Defendant proceeded to present evidence 16 in his defense. On appeal, Defendant argues that the trial court erred in denying his 17 motion for directed verdict because there was insufficient evidence to support the 18 underlying charges.

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1 {39} “It is well-settled that a defendant who presents evidence waives his claim that 2 the evidence at the close of the State’s case was insufficient for submission to the 3 jury.” State v. Baldwin, 2001-NMCA-063, ¶ 30, 130 N.M. 705, 30 P.3d 394 (internal 4 quotation marks and citation omitted); see also State v. Gabaldon, 1939-NMSC-060, 5 ¶ 9, 43 N.M. 525, 96 P.2d 293 (“If the court erred in [overruling appellant’s motion 6 for an directed verdict at the close of the State’s case] the error was waived by the 7 appellant upon his election to introduce defensive testimony.”). Therefore, even if the 8 trial court had erred in denying Defendant’s motion for a directed verdict, his 9 presentation of a defense constitutes a waiver of the right to raise this error on appeal. 10 F. Sufficient Evidence Supports Defendant’s Convictions 11 {40} Defendant also argues on appeal that there was insufficient evidence to support 12 his convictions. “The test for sufficiency of the evidence is whether substantial 13 evidence of either a direct or circumstantial nature exists to support a verdict of guilt 14 beyond a reasonable doubt with respect to every element essential to a conviction.” 15 Flores, 2010-NMSC-002, ¶ 2 (internal quotation marks and citation omitted). 16 “Substantial evidence is relevant evidence that a reasonable mind might accept as 17 adequate to support a conclusion.” State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 18 532 (internal quotation marks and citation omitted). “In reviewing whether there was

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1 sufficient evidence to support a conviction, we resolve all disputed facts in favor of 2 the State, indulge all reasonable inferences in support of the verdict, and disregard all 3 evidence and inferences to the contrary.” Id. (internal quotation marks and citation 4 omitted). 5 {41} Resolving all disputed facts in favor of the State, there was substantial evidence 6 supporting a finding of guilt beyond a reasonable doubt for both of Defendant’s 7 convictions for first degree murder, as well as his conviction for tampering with 8 evidence. First, there were several pieces of evidence tying Defendant to the scene 9 of the crimes. Most notably, Defendant was the last person seen with Maestas and 10 Salazar, after he called Maestas and asked him to come to the rest stop. Additionally, 11 Maestas was shot with a .22 caliber bullet; .22 caliber bullet casings were found in 12 the burned vehicle, in Defendant’s Jeep, and at Nelson’s house (where Defendant was 13 known to have fired a .22 caliber pistol); and ballistics evidence indicated that all the 14 casings were fired from the same pistol. Also, the battery was missing from Maestas’ 15 car, nothing indicated it was consumed by the fire, and a battery designed for use in 16 a 2000 Honda Accord was found in Defendant’s Jeep after the murders. Finally, the 17 gas cap from Maestas’ car was missing, while a gas cap fitting the type commonly 18 used on a 2000 Honda Accord was found in Defendant’s Jeep.

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1 {42} Additional evidence provides further support for Defendant’s convictions for 2 first degree murder. “Murder in the first degree is the killing of one human being by 3 another without lawful justification or excuse . . . by any kind of willful, deliberate 4 and premeditated killing.” Section 30-2-1(A)(1).“‘Deliberate intention’ is defined as, 5 ‘arrived at or determined upon as a result of careful thought and the weighing of the 6 consideration for and against the proposed course of action.’” State v. Cunningham, 7 2000-NMSC-009, ¶ 25, 128 N.M. 711, 998 P.2d 176 (quoting UJI 14-201 NMRA). 8 Based upon the evidence presented at trial, a reasonable juror could conclude that 9 Defendant committed the murders with deliberate intent. The victims were found in 10 the same remote location where Defendant had asked Maestas to meet him, shortly 11 after Defendant called Maestas for assistance, and Defendant admitted to police his 12 story about running out of gas was a ruse. Considering these facts, along with the 13 circumstances detailed above, a reasonable juror could conclude that Defendant 14 fabricated the excuse that he had run out of gas as a ploy to lure Maestas to the rest 15 area, supporting a finding of deliberation and premeditation. The intentional 16 destruction of the vehicle with the bodies inside of it evidences culpability, as does 17 the evidence showing that, shortly after the killings occurred, Defendant got rid of the 18 gun he often carried.

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1 {43} Further, sufficient evidence supports Defendant’s conviction for tampering 2 with evidence. “Tampering with evidence consists of destroying, changing, hiding, 3 placing or fabricating any physical evidence with intent to prevent the apprehension, 4 prosecution or conviction of any person or to throw suspicion of the commission of 5 a crime upon another.” Section 30-22-5 (A). Evidence at trial showed that significant 6 physical evidence at the scene was destroyed by the fire. Reasonable minds could find 7 that the fire was intentionally started, based on the testimony of the fire investigator; 8 the fact that the battery was missing, ruling out the possibility that the fire was caused 9 by an accidental electrical malfunction; and the fact that there were two murder 10 victims’ bodies inside the car. Further, evidence established that a gunshot wound 11 caused Maestas’ death, and Salazar’s cause of death was “homicidal violence.” 12 Although both victims’ bodies were severely damaged by the fire, experts were able 13 to determine that these thermal injuries were sustained after death, indicating that 14 neither victim started the fire. A reasonable juror could conclude that the fact that 15 both victims had been killed or were near death before the fire shows that the fire was 16 started to prevent apprehension, prosecution, or conviction for murder. There was 17 certainly sufficient evidence presented at trial upon which reasonable minds could 18 support a conclusion of guilt.

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1 G. Cumulative Error 2 {44} Finally, Defendant argues that the cumulative impact of the trial court’s 3 allegedly erroneous rulings amount to cumulative error, depriving him of a fair trial. 4 Defendant argues that his claims of judicial misconduct and erroneous evidentiary 5 rulings, in sum, amount to cumulative error. 6 {45} “The doctrine of cumulative error applies when multiple errors, which by 7 themselves do not constitute reversible error, are so serious in the aggregate that they 8 cumulatively deprive the defendant of a fair trial.” State v. Salas, 2010-NMSC-028, 9 ¶ 39, 148 N.M. 313, 236 P.3d 32 (internal quotation marks and citation omitted). “In 10 New Mexico the doctrine of cumulative error is strictly applied. It cannot be invoked 11 when the record as a whole demonstrates that the defendant received a fair trial.” Id. 12 (internal quotation marks and citation omitted). There is no claim for cumulative error 13 where no error exists. See State v. Samora, 2013-NMSC-038, ¶ 28, 307 P.3d 328 14 (holding that “[w]here there is no error to accumulate, there can be no cumulative 15 error”). While Defendant repeats his previous arguments about judicial misconduct 16 and evidentiary rulings, based on the foregoing we are not persuaded that any error 17 occurred, nor that Defendant was deprived of a fair trial. 18 IV. CONCLUSION

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1 {46} Based on the foregoing, we affirm Defendant’s convictions. 2 {47} IT IS SO ORDERED.

3 _________________________________ 4 BARBARA J. VIGIL, Chief Justice

5 WE CONCUR:

6 _______________________________ 7 PETRA JIMENEZ MAES, Justice

8 _______________________________ 9 RICHARD C. BOSSON, Justice

10 _______________________________ 11 EDWARD L. CHÁVEZ, Justice

12 _______________________________ 13 CHARLES W. DANIELS, Justice