State v. Griego

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee,

9 v. Nos. 28,386 and 28,962 10 (consolidated)

11 DAVID A. GRIEGO, 12 Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 14 David W. Bonem, District Judge Pro Tempore

15 Gary K. King, Attorney General 16 Nicole Beder, Assistant Attorney General 17 Santa Fe, NM

18 for Appellee

19 Albright Law & Consulting 20 Jennifer R. Albright 21 Albuquerque, NM

22 for Appellant 23 MEMORANDUM OPINION 24 SUTIN, Judge.

1 In this consolidated appeal, Defendant David Griego appeals his conviction of 2 second degree murder and his sentencing as a habitual offender. He was convicted as 3 an accessory for his involvement in the murder of ten-year-old Carlos Perez (Victim). 4 Defendant primarily claims that he was denied a fair trial. Specifically, he argues that 5 the district court made an improper ruling regarding venue; his trial should have been 6 severed from that of Co-Defendant Demetrio Salas; there were improper rulings by 7 the district court during jury selection; a mistrial was warranted after a State’s witness 8 made an inappropriate comment to a juror; improper evidentiary rulings were made 9 by the district court; there was prosecutorial misconduct which warranted a mistrial; 10 and cumulative error warranted a mistrial. He also argues that he was improperly 11 sentenced as a habitual offender because the State failed to meet its burden of proof. 12 After considering each of Defendant’s arguments, we affirm. We will discuss the 13 facts of this case in greater detail as they apply to each issue raised in the appeal. The 14 following is a summary of events. 15 Defendant and Co-Defendant were tried together for Victim’s murder. Co- 16 Defendant was convicted of first degree murder. He appealed directly to our Supreme 17 Court. Our Supreme Court has issued an opinion in Co-Defendant’s appeal. That 18 opinion is determinative of two of the issues Defendant raises in the present appeal. 19 Witness testimony indicates that Defendant and Co-Defendant went together to

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1 Victim’s home, where Co-Defendant fired a gun nine times into Victim’s bedroom as 2 he slept. Victim died from a bullet wound to his temple. The intended target was 3 Victim’s older brother who attended high school with Co-Defendant’s younger 4 brother. 5 The State’s Second Motion to Reconsider 6 Defendant argues that the district court abused its discretion by granting the 7 State’s second motion to reconsider a change of venue from Curry County, New 8 Mexico, which is within the Ninth Judicial District. The result of this ruling was that 9 the trial was held within the Ninth Judicial District in Roosevelt County. Co- 10 Defendant raised this same issue in his appeal to the Supreme Court. State v. Salas, 11 2010-NMSC-028, ¶ 1, 148 N.M. 313, 236 P.3d 32. As this matter has already been 12 decided, we hereby decline to examine it any further. See id. ¶¶ 7-19 (concluding that 13 the district court made a proper ruling regarding venue); Martinez v. Allstate Ins. Co., 14 1997-NMCA-100, ¶ 15, 124 N.M. 36, 946 P.2d 240 (recognizing as a “settled 15 principle that this Court does not overrule Supreme Court case law”). 16 Defendant’s Motion to Sever 17 Defendant argues that the district court abused its discretion by denying his 18 request to sever his trial from that of Co-Defendant. Among his reasons for requesting 19 severance were that (1) testimony relating to the charge of intimidation of a witness

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1 would be prejudicial to Defendant, because only Co-Defendant faced that charge; 2 (2) Defendant and Co-Defendant had antagonistic defenses; (3) there was insufficient 3 evidence of a common plan or scheme; and (4) the charges against Defendant and Co- 4 Defendant were so similar that separating them would be difficult for the jury. 5 “Our standard of review applicable to severance issues is exceedingly narrow. 6 The essence of our review is to determine whether the joint trial resulted in an 7 appreciable risk that the jury convicted for illegitimate reasons.” State v. Dominguez, 8 115 N.M. 445, 453, 853 P.2d 147, 155 (Ct. App. 1993) (citation omitted). “Severance 9 is a matter within the sound discretion of the trial court and will not be reversed on 10 appeal absent a showing of an abuse of discretion.” State v. Peters, 1997-NMCA-084, 11 ¶ 10, 123 N.M. 667, 944 P.2d 896. 12 Under Rule 5-203(B)(3) NMRA, even where a conspiracy is not charged and 13 not all the defendants are charged in each count, two or more defendants may be 14 joined where they “were part of a common scheme or plan; or . . . were so closely 15 connected in respect to time, place and occasion that it would be difficult to separate 16 proof of one charge from proof of others.” 17 A majority of the evidence in this case points to a collaboration between 18 Defendant and Co-Defendant in the plan that resulted in Victim’s murder. The

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1 testimony from various witnesses, when pieced together, points to the fact that 2 Defendant and Co-Defendant were together before, during, and after the murder. 3 Melissa Sanchez (Melissa) testified that on the night of the crime Defendant 4 joined Co-Defendant, Melissa, and Orlando Salas (Orlando) in the Salas family 5 suburban. Defendant, dressed in dark clothing, joined the group shortly after 6 midnight. The four drove together to the Gatewood Apartments, where Victim lived, 7 and Melissa indicated which of the windows she thought belonged to Victim’s 8 family’s apartment. The group then drove two blocks from the apartment complex to 9 Eric Gutierrez’s house. Eric Gutierrez (Eric) testified that he had known Co- 10 Defendant “probably . . . all [his] life almost, . . . . [They] grew up in the same 11 neighborhood.” Melissa testified that when the group got to Eric’s house, Co- 12 Defendant instructed Orlando and Melissa to get out of the suburban, explaining that 13 he (Co-Defendant) and Defendant had to “go do some business,” that they had to “go 14 on a mission.” Melissa and Orlando got out of the vehicle and knocked on Eric’s 15 window. Eric let them in through the front door. According to Melissa’s testimony, 16 Defendant and Co-Defendant were the only two people in the suburban when they left 17 Melissa and Orlando at Eric’s house. 18 Victim’s neighbor (Neighbor) heard a car horn and looked out her window to 19 see what was later identified as the Salas family suburban driving slowly down her

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1 street. Five or ten minutes later, the suburban appeared on Neighbor’s street again and 2 was parked in front of her bedroom window under a street light. Neighbor saw 3 “somebody in the front passenger door,” who was wearing a dark hat and a dark shirt. 4 The passenger door was open, and the individual had one leg hanging out of the 5 vehicle. Neighbor could not see how many people were in the vehicle. Neighbor then 6 heard “banging noises” and stopped looking out the window. She ran to check on her 7 children. After checking on her children, she looked out a window and the vehicle 8 was gone. 9 Ashley Garcia (Ashley) testified that she was near Victim’s apartment complex 10 when the crime occurred, that she saw the suburban parked, saw two doors open, and 11 saw two people get out. The two individuals joined and shook hands with two other 12 people that had been with Ashley who were also involved in Victim’s murder, but 13 who were not tried in the instant case. 14 Melissa testified that she and Orlando waited at Eric’s house for Defendant and 15 Co-Defendant to return, which they did, about five minutes later. When Eric opened 16 the door, Defendant and Co-Defendant ran inside and Co-Defendant said, “I just went 17 in and blasted nine rounds at that sewer rat’s house.” Melissa testified that both 18 Defendant and Co-Defendant ran inside, and while it appeared that Co-Defendant was

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1 “hyped up” with adrenalin, she did not pay attention to Defendant after he ran inside.

2 Eric retrieved his police scanner from a backroom and the group, which 3 included Orlando, Melissa, Eric, Defendant, and Co-Defendant, listened as the police 4 communicated that there was an eleven-year-old with a gunshot wound to the temple, 5 heart rate dropping. The group remained at Eric’s house, while Co-Defendant cleaned 6 his gun with pickle juice and hid the suburban in the garage. The group dispersed at 7 approximately 3:30 a.m. 8 Based on Defendant’s involvement in or presence during these events, we 9 determine that there is sufficient evidence of a common plan such that the district 10 court properly denied a motion to sever. This holding is in line with our holding in 11 Dominguez. See 115 N.M. at 453, 853 P.2d at 155. There, this Court upheld the 12 district court’s denial of a motion to sever where both defendants were part of a group 13 of persons kicking and hitting the victim while he was being stabbed, and the basis of 14 the defendants’ culpability was that they aided and abetted the individual who did the 15 stabbing. Id. Here, the evidence suggests that Defendant played a supportive role in 16 the murder. He uninterruptedly accompanied Co-Defendant throughout the 17 approximated three-hour time span, during which the crime occurred, and was 18 therefore an accessory to the murder. See State v. Ortega, 77 N.M. 7, 17, 419 P.2d

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1 219, 227 (1966) (stating that to be guilty as an accessory, one must share the 2 principal’s intent and there must be “a community of purpose and partnership in the 3 unlawful undertaking”); State v. Riley, 82 N.M. 298, 299, 480 P.2d 693, 694 (Ct. App. 4 1971) (affirming accessory conviction for burglary when the principal completed the 5 crime, and the accessory knew, was present, and participated by assisting in carrying 6 property away). 7 Having determined that there was sufficient evidence of a common plan to 8 support a joint trial, we turn to Defendant’s remaining three severance arguments. 9 First, Defendant claims that his defense and that of Co-Defendant were antagonistic.

10 While there are situations in which inconsistent defenses may 11 support a motion for severance, the doctrine is a limited one. . . . [T]he 12 governing standard requires the moving defendant to show that the 13 defendants present conflicting and irreconcilable defenses and there is a 14 danger that the jury will unjustifiably infer that this conflict alone 15 demonstrates that both are guilty. Application of this standard . . . 16 requires that the accounts of [the] co-defendants be not merely divergent 17 from one another but indeed so contradictory as to raise an appreciable 18 danger that the jury would convict solely on the basis of the 19 inconsistency.

20 State v. Segotta, 100 N.M. 18, 24-25, 665 P.2d 280, 286-87 (Ct. App. 1983) (internal 21 quotation marks and citations omitted), rev’d in part on other grounds by 100 N.M. 22 498, 672 P.2d 1129 (1983). 23 Notwithstanding the fact that Defendant fails to provide an explanation of how 24 he views the defenses as antagonistic, a review of the record does not support such a

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1 holding. Under the facts of this case, neither Defendant nor Co-Defendant attempted 2 to implicate the other as the guilty party. In fact, both of their defenses centered on 3 their respective lack of presence during or participation in the murder. 4 Second, we examine Defendant’s argument that charges against him and Co- 5 Defendant were so similar that separating them would be difficult for the jury. The 6 jury’s verdict in this case contradicts the validity of Defendant’s argument. Defendant 7 was acquitted of first degree murder, attempted first degree murder, shooting at a 8 dwelling, illegal possession of a firearm, and tampering with evidence. These jury 9 verdicts indicate that the jury was able to separate the evidence pertaining to 10 Defendant and Co-Defendant respectively and was able to apply it accordingly. See 11 Dominguez, 115 N.M. at 453, 853 P.2d at 155 (affirming district court’s denial of 12 motion to sever where it was “apparent . . . that the jury was able to follow the 13 evidence and apply it to each individual count and to each defendant”). 14 Nor are we persuaded by Defendant’s third argument in support of severance. 15 Defendant argues that testimony regarding intimidation of a witness, a charge faced 16 only by Co-Defendant was prejudicial to Defendant, therefore requiring separate 17 trials. We disagree. 18 As we have already noted, Defendant was acquitted on all counts, with the 19 exception of second degree murder. There was ample and legitimate evidence of

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1 Defendant’s involvement in Victim’s murder to support this conviction. Furthermore, 2 none of the testimony at issue referred to Defendant. “On review of [a denial of 3 severance,] we must decide whether . . . there [was] an appreciable risk that the jury 4 convicted for illegitimate reasons.” State v. Montoya, 114 N.M. 221, 224, 836 P.2d 5 667, 670 (Ct. App. 1992). “[The] inquiry necessarily involves [the] consideration of 6 the degree of prejudice . . . and of the strength of the legitimate evidence arrayed 7 against [the] defendant.” Id. “A trial court has discretion in deciding whether . . . to 8 sever a case.” Id. Given the legitimate evidence against Defendant, the denial of 9 severance was not an abuse of discretion. 10 Jury Selection Issues 11 Defendant argues that the district court erroneously denied challenges for cause 12 by Defendant against five specific jurors. In his briefing to this Court, Defendant 13 provides an explanation of the “cause” behind each challenge, yet he fails to provide 14 any authority beyond the standard of review in support of his argument. Hence, we 15 will not consider this issue as part of the appeal. See In re Adoption of Doe, 100 N.M. 16 764, 765, 676 P.2d 1329, 1330 (1984) (holding that an appellate court will not 17 consider an issue if no supporting authority is cited). 18 As to Defendant’s remaining jury selection issues, they will not be examined 19 as part of this appeal because they were decided in Salas, 2010-NMSC-028, ¶¶ 20-38.

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1 There, our Supreme Court determined that (1) Defendant and Co-Defendant exercised 2 their peremptory challenges jointly, id. ¶ 20 n.2; (2) the district court properly 3 affirmed the State’s Batson challenge, id. ¶ 36; and (3) the district court properly 4 rejected Defendants’ Batson challenge. Id. ¶ 38; see Martinez, 1997-NMCA-100, ¶ 15 5 (recognizing as a “settled principle that this Court does not overrule Supreme Court 6 case law”). 7 Inappropriate Witness Comment 8 Defendant argues on appeal that an inappropriate comment made by a State’s 9 witness to a juror warranted a mistrial. On the morning of the third day of trial, two 10 jurors and three witnesses had an encounter at the elevator. Either directly to or at 11 least in the presence of the jurors, one of the witnesses said, “hang them boys.” The 12 witness, Max Sena (Max), according to the State’s answer brief, was expressing his 13 dissatisfaction with the fact that he had been charged with tampering with evidence. 14 Max testified that he had been convicted on this charge based on his involvement with 15 the murder weapon. Max’s comment in the presence of the jurors was made prior to 16 his testimony. 17 The jurors immediately notified the court about the incident; however they had 18 already related this experience to some of the other jurors. The court decided to 19 question the jurors individually to learn what they had heard and to determine whether

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1 they could still be fair and impartial, and each of them stated they could. Defendant 2 moved for a mistrial as a result of this incident and because the district attorneys office 3 had determined that three of the State’s witnesses were discussing the case, also 4 claimed a violation of Rule 11-615 NMRA. The district court denied the motion. 5 Defendant renews these claims on appeal, arguing that the district court erred by not 6 granting a mistrial. 7 Rule 11-615 reads in pertinent part, “[a]t the request of a party[,] the court shall 8 order witnesses excluded so that they cannot hear the testimony of other witnesses, 9 and it may make the order of its own motion.” “The purpose of the rule excluding 10 witnesses is to give the adverse party an opportunity . . . to expose inconsistencies in 11 their testimony[;] and . . . to prevent the possibility of one witness shaping his 12 testimony to match that given by other witnesses at the trial[.]” State v. Ortiz, 88 13 N.M. 370, 377, 540 P.2d 850, 857 (Ct. App. 1975) (internal quotation marks and 14 citations omitted). 15 Defendant fails to provide any explanation or authority in support of his Rule 16 11-615 claim. We do not see any basis for relief under this rule, and we therefore 17 move directly to an examination of the improper communication between the witness 18 and the jurors. See In re Adoption of Doe, 100 N.M. at 765, 676 P.2d at 1330 (stating

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1 that an appellate court will not consider an issue if no authority is cited in support of 2 the issue and will assume no such authority exists). 3 We review for abuse of discretion a denial of a motion for mistrial. State v. 4 Johnson, 2010-NMSC-016, ¶ 49, 148 N.M. 50, 229 P.3d 523. In cases involving 5 extraneous juror communications, the presumption of prejudice is not automatic. 6 Kilgore v. Fuji Heavy Indus. Ltd., 2010-NMSC-040, ¶¶18-19, 148 N.M. 561, 240 P.3d 7 648. Where there is evidence of improper juror communications, “the issue . . . is 8 whether there is a reasonable probability or a likelihood that the extrinsic 9 communications or conduct would have an effect upon the verdict or upon a typical 10 juror.” Prudencio v. Gonzales, 104 N.M. 788, 790, 727 P.2d 553, 555 (Ct. App. 1986) 11 (internal quotation marks and citation omitted). “[T]he ultimate issue in all jury 12 tampering, misconduct, or bias cases is how the impropriety in question would have 13 affected a hypothetical average jury.” Kilgore, 2010-NMSC-040, ¶ 21 (internal 14 quotation marks and citation omitted). 15 In Kilgore, our Supreme Court recognized that “it is virtually impossible to 16 shield jurors from every contact or influence that might theoretically affect their vote.” 17 Id. ¶ 16 (internal quotation marks and citation omitted). There, the Court explained 18 that “due process does not require a new trial every time a juror has been placed in a 19 potentially compromising situation.” Id. (internal quotation marks and citation

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1 omitted). Rather, the district court is in a position to implement “[t]he safeguards of 2 juror impartiality, such as voir dire and protective instructions from the trial judge” 3 and by doing so, to determine the effect of potentially compromising juror contact. 4 Id. (internal quotation marks and citation omitted). Throughout these proceedings, the 5 burden of proving the reasonable probability that the extraneous information affected 6 the jury rests with Defendant. See id. ¶ 22. 7 Here, upon learning of the extraneous communication, the district court acted 8 within the bounds of its discretion by interviewing each juror individually. See State 9 v. Gallegos, 2009-NMSC-017, ¶ 29, 146 N.M. 88, 206 P.3d 993 (recognizing “that 10 trial courts have considerable discretion and a variety of remedies to address 11 allegations of juror bias, including individual voir dire”). The district court asked the 12 jurors what they had heard and whether it would affect their ability to be fair and 13 impartial. All jurors replied that they could be fair and impartial notwithstanding what 14 they had heard and in some cases, did not hear. And, before they were excused from 15 the interview, the court asked them to refrain from discussing what had been discussed 16 in chambers. Based on the foregoing, we determine that the district court’s actions 17 were appropriate as a method of learning whether the jury was affected by the 18 inappropriate witness comment. As the district court took this measure and found that

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1 the jury was not affected, it was then for Defendant to show that the jury was, in fact, 2 affected by the comment. In this case, Defendant made no such showing. 3 After the juror interviews, the district court, both defense attorneys, and the 4 attorney for the State further discussed the situation in chambers. Defense counsel 5 hypothesized that a problem could arise for the jurors who heard the comment when 6 the witness who made the comment takes the stand. In response to this, the court 7 asked whether that juror should be released. To which counsel for Co-Defendant 8 responded in the negative. Defendant did not further attempt to make a showing to 9 the district court, nor does he do so on appeal. 10 On appeal, Defendant simply asserts that “[t]he communication . . . 11 substantially threatened the impartiality of the jury.” However, we are unpersuaded 12 by this assertion given the fact that the jurors themselves said otherwise. We therefore 13 determine that the district court did not abuse its discretion by denying Defendant’s 14 motion for a mistrial. 15 Inadmissible Testimony Issues 16 Defendant argues that the district court erred by refusing to give a limiting 17 instruction with regard to the testimony of four witnesses, Detective Whitney, 18 Detective Pitcock, Isidoro Salas, and Detective Aguilar. Defendant claims that the 19 absence of a limiting instruction “directly impacted the jury negatively against him,

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1 leading to his conviction.” His sole authority in support of this assertion is the 2 limiting instruction at issue, UJI 14-5007 NMRA. 3 We review evidentiary issues for an abuse of discretion. State v. Wildgrube, 4 2003-NMCA-108, ¶ 8, 134 N.M 262, 75 P.3d 862. “An abuse of discretion occurs 5 when the ruling is clearly against the logic and effect of the facts and circumstances 6 of the case. We cannot say the trial court abused its discretion by its ruling unless we 7 can characterize it as clearly untenable or not justified by reason.” State v. Apodaca, 8 118 N.M. 762, 770, 887 P.2d 756, 764 (1994) (internal quotation marks and citations 9 omitted). 10 UJI 14-5007 states:

11 Evidence concerning [description of evidence] has been admitted 12 against [name of defendant] but not admitted against [name of 13 defendant].

14 []At the time this evidence was admitted, you were instructed that 15 it could not be considered by you against [name of defendant].[] 16 17 You are []again[] instructed that you must not consider such 18 evidence against [name of defendant].

19 Your verdict as to each defendant must be reached as if he were 20 being tried separately.

21 The use notes accompanying this instruction state that it must be issued upon request 22 where the evidence in question is admitted as to only one party.

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1 As the appellant, Defendant bears the burden of establishing how the district 2 court abused its discretion. State v. Ortiz, 2009-NMCA-092, ¶ 35 146 N.M. 873, 215 3 P.3d 811. On appeal, Defendant states that he objected to these four witnesses “on the 4 basis of relevance and on the basis the testimony prejudiced him.” He states that each 5 objection was accompanied by a request for a limiting instruction, all of which were 6 denied. Defendant does not provide citation to any case law or Rules of Evidence in 7 support of his argument. The State refutes Defendant’s argument by providing an 8 explanation of how the evidence in question was relevant to its case against both Co- 9 Defendant and Defendant. And Defendant, though given an opportunity to respond 10 to the State’s argument in his reply brief, chose not to. 11 Defendant’s mere citation to the limiting instruction is insufficient to persuade 12 us that the court erred in admitting the testimony of Detective Whitney, Detective 13 Pitcock, or Isidoro Salas, against Defendant. As Defendant provides no authority on 14 this point, we will not attempt to research it for him, and we will not consider his 15 argument. See State v. Eric K., 2010-NMCA-040, ¶ 16, 148 N.M. 469, 237 P.3d 771. 16 Additionally, we cannot hold that the district court abused its discretion by not giving 17 a limiting instruction because there was no evidence admitted at trial against Co- 18 Defendant that was not admitted against Defendant.

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1 With regard to the testimony of Detective Aguilar, the record indicates that 2 Defendant did not request that the district court give a limiting instruction. We 3 determine therefore that this argument was not preserved. See Vill. of Angel Fire v. 4 Bd. of Cnty. Comm’rs of Colfax Cnty., 2010-NMCA-038, ¶ 15, 148 N.M. 804, 242 5 P.3d 371 (stating that “[i]n order to properly preserve an issue, it must appear that the 6 party fairly invoked a ruling of the district court on the same grounds argued in the 7 appellate court” and “[w]e will not review arguments that were not preserved in the 8 district court” (alterations omitted) (internal quotation marks and citation omitted)). 9 Exclusion of a Statement Made by Edward Salas to Ashley Garcia 10 Defendant argues on appeal that the district court abused its discretion by 11 refusing to admit a statement made by Edward Salas (Edward) to Ashley, a statement 12 that Defendant characterizes as a statement against penal interest. Defendant calls for 13 reversal and a new trial based on the district court’s ruling that the statement lacked 14 circumstantial guarantees of trustworthiness. 15 Defendant sought to cross-examine Ashley about a statement she made to 16 Detective Aguilar following the shooting. During her interview with Detective 17 Aguilar, Ashley related the details of a conversation she had with Co-Defendant’s 18 brother, Edward, following the shooting. The interview was recorded and transcribed, 19 and portions were read to the district court outside the presence of the jury for the

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1 purpose of an evidentiary ruling. Part of the transcript that was read by the 2 prosecution stated: “I guess he explained to me that he . . . tried to shoot an older 3 brother but shot the wrong boy.” The transcript further stated that “I’d asked her 4 about that when he says he explained to me–that he tried to shoot an older boy, and 5 asked her if he was. That’s when she explained to me that he–that Edward was 6 indicating [‘]he[’] was [Co-Defendant].” When reading the transcript proved 7 confusing, the district court allowed Defendant to make an offer of proof by bringing 8 Ashley in and questioning her about the statement she made. In an attempt to glean 9 what she thought Edward meant when Edward said “I wasn’t gonna shoot but I got 10 scared,” defense counsel asked her “did he tell you . . . something that made you think 11 that when he was saying [‘]I[’] he was referring to [Co-Defendant]?” Ashley testified 12 that she did not know. Based on the lack of clarity as to whether Edward was 13 admitting to shooting Victim or whether he was referring to his brother Demetrio, Co- 14 Defendant, the court excluded the statement finding that it lacked “the circumstantial 15 guarantees of trustworthiness necessary for admission of the statement against 16 interest.” 17 We review the district court’s evidentiary rulings for an abuse of discretion. 18 State v. Johnson, 99 N.M. 682, 687, 662 P.2d 1349, 1354 (1983). Rule 11-804 19 NMRA covers hearsay exceptions where the declarant is unavailable. In pertinent

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1 part, Rule 11-804(B)(3) allows a statement against interest to be admitted provided 2 that “corroborating circumstances clearly indicate the trustworthiness of the 3 statement.” In determining whether a statement contains circumstantial guarantees of 4 trustworthiness, district courts should consider, among other things, “[a]mbiguity–the 5 danger that the meaning intended by the declarant will be misinterpreted . . . [or] 6 [f]aulty memory–the danger that the declarant simply forgets key material[.]” State 7 v. Coffin, 1999-NMSC-038, ¶ 40, 128 N.M. 192, 991 P.2d 477. 8 Here, it appears that there was danger of both ambiguity and faulty memory. 9 Ashley stated to the district court that she did not know whether Edward admitted to 10 being the shooter, or whether Edward had told her that Demetrio was the shooter, 11 indicating faulty memory. Moreover, neither the district court, the attorneys, nor this 12 Court’s reading of the transcribed interview served to clarify the ambiguity of 13 Ashley’s meaning during the interview. Thus, we hold that the district court made the 14 proper ruling under the circumstances. 15 Prosecutorial Misconduct Claim 16 At trial, the State asked Co-Defendant whether he had been tested for gunshot 17 residue. Before the State asked this question, the parties discussed the issue at a bench 18 conference. The court ruled that the State was permitted to elicit testimony to the

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1 effect that the gunshot residue tests had been taken, while making it clear that, because 2 of the nature of the test, results could not be obtained. 3 When the State asked Co-Defendant whether he had been tested for gunshot 4 residue, his counsel objected to the question and requested a mistrial. The district 5 court denied the request for a mistrial. In order to avoid any confusion on the matter, 6 the district court read to the jury the stipulation that the gunshot residue test bore no 7 results and gave a limiting instruction. On appeal, Defendant claims that the act of 8 asking Co-Defendant about the gunshot residue test constituted prosecutorial 9 misconduct. The State claims there was no misconduct because the State followed the 10 procedure that had been discussed and agreed to at the bench conference. 11 We review the denial of a motion for mistrial based on prosecutorial 12 misconduct for an abuse of discretion. See State v. Gonzales, 2000-NMSC-028, ¶ 35, 13 129 N.M. 556, 11 P.3d 131. The district court abuses its discretion in denying a 14 motion for mistrial “when the ruling is clearly against the logic and effect of the facts 15 and circumstances of the case.” State v. Simonson, 100 N.M. 297, 301, 669 P.2d 16 1092, 1096 (1983). “The trial court has broad discretion in controlling the conduct 17 and remedying the errors of counsel during trial.” State v. Duffy, 1998-NMSC-014, 18 ¶ 46, 126 N.M. 132, 967 P.2d 807. We note that “the trial court is in the best position 19 to evaluate the significance of any alleged prosecutorial errors.” Id. And “[o]nly in

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1 the most exceptional circumstances should [the appellate court], with the limited 2 perspective of a written record, determine that all the safeguards at the trial level have 3 failed. Only in such circumstances should [this Court] reverse the verdict of a jury 4 and [a] judgment of [the] trial court.” State v. Sosa, 2009-NMSC-056, ¶ 25, 147 N.M. 5 351, 223 P.3d 348. 6 Under the circumstances of this case, we need not decide whether the State’s 7 question constituted misconduct because the curative measures taken by the district 8 court were sufficient to cure any such misconduct. Cf. Gonzales, 2000-NMSC-028, 9 ¶ 37 (“The overwhelming New Mexico case law states that the prompt sustaining of 10 the objection and an admonition to disregard the answer cures any prejudicial effect 11 of inadmissible testimony.” (internal quotation marks and citation omitted)). 12 Admission of 911 Recording 13 Defendant argues that the district court erred in admitting the recorded 911 call 14 made by Victim’s mother after the shooting. Defendant claims that the recording had 15 no probative value, that any relevant information contained in the recording was 16 presented by witnesses, and that the recording was more prejudicial than probative, 17 serving only to inflame the jury. 18 We review the admission of evidence for abuse of discretion. State v. Flores, 19 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641. The district court has “great

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1 discretion in balancing the prejudicial impact of [evidence] against its probative 2 value.” State v. Garcia, 2005-NMCA-042, ¶ 50, 137 N.M. 315, 110 P.3d 531 3 (internal quotation marks and citation omitted). “‘Relevant evidence’ means evidence 4 having any tendency to make the existence of any fact that is of consequence to the 5 determination of the action more probable or less probable than it would be without 6 the evidence.” Rule 11-401 NMRA. Even where evidence has a potentially 7 prejudicial effect, it will be admitted if it helps to clarify, corroborate, or illustrate the 8 testimony of witnesses. See State v. Blakley, 90 N.M. 744, 748, 568 P.2d 270, 274 9 (Ct. App. 1977) (determining that there had been no abuse of discretion where 10 photographs of the victim’s body and the defendant’s vehicle were admitted into 11 evidence in vehicular homicide prosecution). 12 We are not convinced by Defendant’s argument that the district court abused 13 its discretion by allowing the 911 tape to be played. While Defendant argues that the 14 recording had no probative value, the contents of the recording corroborated the 15 testimony of other witnesses, including that of Victim’s sister, as the recording 16 contains Victim’s mother stating that her daughter saw someone outside the window 17 in a dark shirt. 18 Further, as the State explains, the recording was played as an alternative to 19 having Victim’s mother testify in her “obviously distraught state.” The district court

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1 admitted the tape having determined that it was relevant and apparently agreeing with 2 the State’s position that playing the recording would be “significantly less prejudicial” 3 than having Victim’s mother testify. 4 Moreover, Defendant does not cite any analogous authority to support his 5 argument. Defendant relies solely on Garcia, 2005-NMCA-042, ¶ 50, in which the 6 defendant lost on his claim that photographs of the victim that were taken before and 7 after death were more prejudicial than probative. Id. ¶ 51. There, this Court stated, 8 “[i]t is well established that photographs may properly be admitted for such purposes 9 [as showing the nature of the injury, explaining the basis of the forensic pathologist’s 10 opinion, and illustrating the pathologist’s testimony], even if they are gruesome.” Id. 11 ¶ 50. 12 In instances of both gruesome photographs and cries of a distraught mother 13 making a 911 call, one can reasonably expect the jurors to have a visceral reaction to 14 what they have seen or heard. In Garcia, as in the instant case, the district court was 15 faced with the task of balancing the potential prejudice of such evidence against the 16 need to present for the jury a complete account of what occurred that lead to the 17 criminal charges. Id. ¶¶ 50-51. We determine here, as in Garcia, that the district 18 court did not abuse its discretion. 19 Sufficiency of the Evidence

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1 Defendant argues that the evidence presented at trial was insufficient to support 2 his conviction. He bases his argument largely on the fact that he “did not say or do 3 anything at all except to be present” and that mere presence without mental 4 approbation is insufficient to support a conviction. He further argues that his acquittal 5 of the “underlying act,” shooting at a dwelling, supports his claim that the evidence 6 against him did not support his conviction. 7 In reviewing the sufficiency of the evidence, an appellate court “does not 8 evaluate the evidence to determine whether some [hypotheses] could be designed 9 which is consistent with a finding of innocence.” State v. Sutphin, 107 N.M. 126, 10 130-31, 753 P.2d 1314, 1318-19 (1988). Rather “we must view the evidence in the 11 light most favorable to the guilty verdict, indulging all reasonable inferences and 12 resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham, 13 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 14 Under accomplice theory of murder, a defendant is not required to participate 15 in the actual killing. Apodaca, 118 N.M. at 767, 887 P.2d at 761; see State v. Lucero, 16 63 N.M. 80, 82, 313 P.2d 1052, 1053 (1957) (holding that the defendant was guilty 17 as a principal where he was the driver of the getaway car, kept the motor running, and 18 watched as the victim was robbed and beaten); see also State v. Wilson, 39 N.M. 284, 19 288, 46 P.2d 57, 59 (1935) (stating that “[a] person being aware of the malice or

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1 criminal intent entertained by a person discharging a deadly firearm at another with 2 fatal results, . . . and aids and abets in the commission of such an offense, is subject 3 to the same punishment as the person who fires the effective shot”). 4 We determine that there was ample evidence from which a reasonable jury 5 could have found Defendant guilty as an accessory to Victim’s murder. Evidence 6 proved that Defendant left his home in dark clothing the night of the murder and 7 joined Co-Defendant and others, and that the group drove around until they found 8 Victim’s family home. Evidence further indicated that Defendant then accompanied 9 Co-Defendant on “a mission” to kill Victim’s brother; that when Defendant and Co- 10 Defendant arrived at the Victim’s apartment complex they both got out of the vehicle 11 and greeted two other individuals involved in the murder; and that Defendant either 12 drove or was a passenger in the Salas family suburban as it drove to and left from the 13 scene of the crime; that when Defendant and Co-Defendant returned from their 14 “mission” they both ran into Eric Gutierrez’s house and Co-Defendant exclaimed, “I 15 just . . . blasted nine rounds at that sewer rat’s house.” While Defendant argues that 16 witnesses did not hear him say anything, the jury was entitled to infer that Defendant 17 and Co-Defendant discussed a plan once they were alone. This evidence suggests 18 more than Defendant’s mere presence. It indicates that, at the least, he played a 19 supporting role in the murder.

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1 Though it appears undisputed that Defendant did not do the actual shooting, this 2 was not a requirement of the crime as charged. The guilty verdict in this case required 3 that the State prove beyond a reasonable doubt that (1) Victim was killed and 4 Defendant helped, encouraged, or caused that death; (2) that Defendant intended that 5 the crime be committed; (3) Defendant knew his acts created a strong probability of 6 death or great bodily harm to Victim or another; and (4) this happened in New Mexico 7 on or about September 15, 2005. See UJI 14-2822 NMRA; UJI 14-210 NMRA. 8 Based on the foregoing analysis, we determine that there was sufficient evidence to 9 support Defendant’s conviction. 10 Cumulative Effect of Trial Errors 11 Defendant argues that the cumulative effect of the alleged errors was so 12 prejudicial that he was denied a fair trial. We do not agree. “The doctrine of 13 cumulative error requires reversal of a defendant’s conviction when the cumulative 14 impact of errors which occurred at trial was so prejudicial that the defendant was 15 deprived of a fair trial.” State v. Hernandez, 115 N.M. 6, 26, 846 P.2d 312, 332 16 (1993) (internal quotation marks and citation omitted). “[I]n New Mexico the doctrine 17 of cumulative error is to be strictly applied. The doctrine cannot be invoked if no 18 irregularities occurred, or if the record as a whole demonstrates that a defendant

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1 received a fair trial[.]” State v. Martin, 101 N.M. 595, 601, 686 P.2d 937, 943 (1984) 2 (citations omitted). 3 Our review of the record as a whole indicates that Defendant received a fair 4 trial. Because we have determined that there was no error, “we further conclude that 5 there was no cumulative error.” State v. Casillas, 2009-NMCA-034, ¶ 51, 145 N.M. 6 783, 205 P.3d 830. 7 Habitual Offender Sentencing 8 Defendant argues that the State failed to prove that less than ten years had 9 passed between the completion of his sentence in CR-95-12178 and his conviction in 10 the instant case. He further argues that the State failed in its burden of proving that 11 he is the same person indicated in the prior convictions. Thus, he argues, his sentence 12 should not have been enhanced under the habitual offender statute. 13 The prosecution has the burden of proof in habitual offender sentencing 14 proceedings. See State v. Elliott, 2001-NMCA-108, ¶ 35, 131 N.M 390, 37 P.3d 107. 15 The standard of proof for the State is a preponderance of the evidence. State v. Smith, 16 2000-NMSC-005, ¶ 1, 128 N.M. 588, 995 P.2d 1030. We use a substantial evidence 17 standard of review when determining the sufficiency of the evidence. State v. 18 Rudolfo, 2008-NMSC-036, ¶ 29, 144 N.M. 305, 187 P.3d 170. And when reviewing

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1 for substantial evidence, we give deference to the findings of the district court. State 2 v. Clements, 2009-NMCA-085, ¶ 28, 146 N.M. 745, 215 P.3d 54. 3 Under the New Mexico habitual offender statute, NMSA 1978, § 31-18-17 4 (2003), three elements must be proved before a defendant’s sentence is enhanced due 5 to status as a habitual offender: “(1) [the] defendant must be the same person, 6 (2) convicted of the prior felony, and (3) less than ten years have passed since the 7 defendant completed serving his or her sentence, probation or parole for the 8 conviction.” State v. Simmons, 2006-NMSC-044, ¶ 8, 140 N.M. 311, 142 P.3d 899. 9 With regard to Defendant’s first claim, that the State failed to prove that less 10 than ten years had passed between his conviction in the present case and the 11 completion of his sentence in CR-95-12178, we determine that the State met its 12 burden of proof. The State presented a certified copy of the judgment, sentence, and 13 order suspending sentence to the district court. The document is dated April 18, 1996, 14 and sentences Defendant to three years of probation. Thus, his probation was 15 scheduled to end in April 1999. Defendant’s conviction in the present case occurred 16 on October 4, 2007, one year and six months ahead of the ten-year limit. 17 To the extent that Defendant argues that the State must present a certificate of 18 completion from the corrections department, we are not persuaded. In making this 19 argument Defendant relies on our Supreme Court’s holding in Simmons, 2006-NMSC-

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1 044. There, the Supreme Court explained that while the prosecution has the burden 2 of making a prima facie case that not more than ten years has passed between felony 3 convictions for the purpose of habitual offender proceedings, “the burden . . . is not 4 onerous.” Id. ¶ 14. The Simmons Court elaborated on this point by explaining various 5 methods of proving the dates of the conviction, the charge and the jurisdiction, 6 specifically mentioning the availability of “certificate[s] of completion,” which are 7 issued by the corrections department at the end of a probation or parole term. Id. 8 Simmons does not require that the State present this certificate at sentencing, and 9 Defendant has presented no authority to suggest the existence of such a requirement. 10 With regard to Defendant’s second claim, that the State failed to prove 11 Defendant’s identity, we determine that the State did, in fact meet its burden of proof. 12 During sentencing the State provided the district court with Defendant’s PEN pack, 13 which included Defendant’s fingerprints, social security number, date of birth, and 14 photographs from various admissions to the corrections department. The State 15 pointed to the fact that documents generated by Defendant’s sixty-day diagnostic 16 evaluation associated with this case reflected the same date of birth and social security 17 number, as well as Defendant’s admission that he had served two prison terms. The 18 State further directed the district court’s attention to the fact that each of the 19 photographs reflected Defendant’s inmate number, which remained the same in this

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1 case and which was also listed on Defendant’s fingerprint cards from prior cases. 2 Based on the State’s evidence of identity, the district court held that Defendant’s 3 identity had been established by a preponderance of the evidence. At this point, the 4 burden shifted to Defendant. See id. ¶ 13 (stating that “[o]nce the [prosecution] 5 presents a prima facie case showing identity . . ., the burden to present proof of 6 invalidity will shift to the defendant, and he will be required to produce evidence in 7 support of his defense”). 8 Defendant did not present to the district court, nor does he present on appeal, 9 any evidence to contradict his identity as the same individual who committed the prior 10 felonies. We agree with the district court that Defendant’s identity was shown by a 11 preponderance of the evidence, and Defendant has not persuaded us otherwise. 12 CONCLUSION 13 For the foregoing reasons, we affirm Defendant’s conviction of second degree 14 murder and his sentencing as a habitual offender. 15 IT IS SO ORDERED.

16 __________________________________ 17 JONATHAN B. SUTIN, Judge

18 WE CONCUR:

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1 _________________________________ 2 JAMES J. WECHSLER, Judge

3 _________________________________ 4 MICHAEL E. VIGIL, Judge