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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. A-1-CA-35597 5 BENNY V. PORTER, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 Angie K. Schneider, District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 Charles J. Gutierrez, Assistant Attorney General 12 Albuquerque, NM
13 for Appellee
14 Bennett J. Baur, Chief Public Defender 15 Kathleen T. Baldridge, Assistant Appellate Defender 16 Santa Fe NM
17 for Appellant 18 MEMORANDUM OPINION 19 KIEHNE, Judge. 20 {1} After a jury trial, Benny Porter (Defendant) was convicted of one count of
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1 shooting from a motor vehicle in violation of NMSA 1978, Section 30-3-8(B) (1993), 2 and one count of aggravated assault with a deadly weapon in violation of NMSA 3 1978, Section 30-3-2(A) (1963). Defendant’s sentence was enhanced as required by 4 NMSA 1978, Section 31-18-16(A) (1993) because he used a firearm to commit the 5 aggravated assault. On appeal, Defendant claims that his convictions for shooting 6 from a motor vehicle and aggravated assault with a deadly weapon violate double 7 jeopardy; that the firearm enhancement applied to his sentence for aggravated assault 8 with a deadly weapon violates double jeopardy; that he should have been allowed to 9 name a crime for which Jason Swapp (Victim) was convicted in support of his self- 10 defense claim; that the district court improperly allowed a witness to testify about an 11 incident in which Defendant rode as a passenger in a car through Victim’s 12 neighborhood one week before the shooting; and that the district court should have 13 granted a mistrial after a juror revealed that she knew one of the State’s witnesses. 14 After consideration of Defendant’s arguments, we affirm. 15 BACKGROUND 16 {2} Defendant and Victim did not like each other. After Victim broke up with his 17 girlfriend, Defendant dated her for one or two months before she resumed her 18 relationship with Victim. On one occasion, Defendant and Victim had a physical 19 altercation; while Victim said that the fight was mutual, Defendant claimed that
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1 Victim was the aggressor, had “flat-out rushed [him],” and that Defendant “had . . . 2 no choice but to defend [himself].” 3 {3} The present case involves an incident that occurred in May 2013 at the 4 intersection of Lucky and Byrd streets in Alamogordo, New Mexico, when Defendant 5 fired a gun at Victim from his car. Victim lived on Lucky Street, not far from the 6 intersection. Defendant claimed and testified at trial that he fired the shot in self- 7 defense because Victim ran toward Defendant with a baseball bat and threw a beer 8 bottle at the car, causing Defendant to fear for his safety. Defendant said that he was 9 blocked from driving away from the intersection because one of Victim’s friends 10 walked out into the street and stood in front of his car. Defendant asserted that he was 11 only in the area to collect money owed to him by a friend who happened to live in the 12 neighborhood. Defendant also testified that he bought the gun used in the shooting 13 because, three weeks earlier, Victim had brandished a rifle while screaming at 14 Defendant and a friend. 15 {4} The State’s theory of the case was that Defendant was not acting in self- 16 defense, but rather had escalated a pattern of harassing Victim. Victim testified that 17 Defendant had driven slowly by his house while playing loud music around fifty times 18 over the span of a few months and had driven by his previous residence about a dozen 19 times. The State presented evidence that on the day of the offense, Victim approached
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1 Defendant’s car because he was tired of being harassed, and Victim was holding a 2 beer bottle, not a bat. Victim testified that he only threw the beer bottle as a distraction 3 when he saw Defendant pull out the gun. Other pertinent facts are provided below as 4 needed to address Defendant’s arguments. 5 DISCUSSION
6 I. Defendant’s Convictions for Aggravated Assault With a Deadly Weapon 7 and Shooting From a Motor Vehicle Do Not Violate the Prohibition 8 Against Double Jeopardy
9 {5} Defendant argues that his convictions for aggravated assault with a deadly 10 weapon and shooting from a motor vehicle violate his right to be free from double 11 jeopardy. We review double jeopardy challenges de novo. State v. Swick, 2012- 12 NMSC-018, ¶ 10, 279 P.3d 747. Double jeopardy challenges involving multiple 13 punishments for violations of the same statute are unit of prosecution cases, while 14 cases in which the same conduct results in convictions under different statutes are 15 double description cases. Id. This is a double description case, because Defendant is 16 challenging his convictions under two different statutes. 17 {6} To determine whether a double jeopardy violation has occurred in a double 18 description case, we first ask “whether the conduct underlying the offenses [was] 19 unitary, i.e., whether the same conduct violate[d] both statutes.” Swafford v. State, 20 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223 (emphasis omitted). The parties
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1 here agree that the conduct forming the basis for both convictions was unitary; we 2 agree. 3 {7} After determining that conduct is unitary, this Court must determine whether 4 the Legislature intended to allow multiple punishments for that conduct. See State v. 5 Montoya, 2013-NMSC-020, ¶ 29, 306 P.3d 426. This prong of the analysis is simple 6 because our Supreme Court has already held that convictions for shooting at or from 7 a motor vehicle and aggravated assault with a deadly weapon that arise out of unitary 8 conduct do not violate a defendant’s double jeopardy rights. State v. Sosa, 1997- 9 NMSC-032, ¶¶ 34-40, 123 N.M. 564, 943 P.2d 1017. We are bound by our Supreme 10 Court’s decision. See Baca v. State, 2017-NMCA-076, ¶ 18, 404 P.3d 789 11 {8} Defendant nevertheless argues that Sosa has been undermined by our Supreme 12 Court’s later decision in Montoya, which “made it clear” that shooting at or from a 13 motor vehicle addresses the same social evil as aggravated assault, and therefore, a 14 defendant may not be punished for both offenses. Defendant further notes that Sosa 15 pre-dated the “modified Blockburger” test that is now used for double description 16 analysis. While we recognize that our Supreme Court has continued to develop the 17 law of double jeopardy since Sosa was decided in 1997, Montoya did not expressly 18 overrule Sosa, and this Court is therefore bound to apply it. Aguilera v. Palm Harbor 19 Homes, Inc., 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (holding that even if
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1 the Court of Appeals believes that the Supreme Court would overrule its own 2 precedent if given the opportunity, the Court of Appeals is still bound to apply it). 3 Thus, we leave it to our Supreme Court to overrule its decision in Sosa if that is the 4 appropriate course.
5 II. The Firearm Enhancement of Defendant’s Sentence for Aggravated 6 Assault Does Not Violate Double Jeopardy
7 {9} Defendant next argues that applying the firearm enhancement to his sentence 8 violated double jeopardy because both the enhancement and his conviction for 9 aggravated assault were based on the use of a firearm. Our Supreme Court recently 10 addressed this issue in State v. Baroz, 2017-NMSC-030, ¶ 20, 404 P.3d 769, and held 11 that applying the firearm enhancement to a sentence for aggravated assault with a 12 deadly weapon does not violate the prohibition against double jeopardy. See State v. 13 Branch, ___-NMCA-___, ¶¶ 1-2, ___ P.3d ___ (No. A-1-CA-33064, Jan. 23, 2018) 14 (recognizing our Supreme Court’s decision in Baroz, and withdrawing a previous 15 opinion that held that sentence enhancement for use of a firearm in the commission 16 of aggravated assault violates double jeopardy). Baroz is controlling and we therefore 17 reject Defendant’s claim.
18 III. The District Court Did Not Abuse Its Discretion by Excluding the Name 19 of Victim’s Prior Felony Conviction
20 {10} Defendant argues that the district court abused its discretion by denying
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1 Defendant “the opportunity to name and discuss [Victim’s] prior felony conviction for 2 aggravated assault with a deadly weapon.” We review evidentiary matters for an abuse 3 of discretion. See State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 4 72. “An abuse of discretion occurs when a ruling is clearly contrary to the logical 5 conclusions demanded by the facts and circumstances of the case.” Sims v. Sims, 6 1996-NMSC-078, ¶ 65, 122 N.M. 618, 930 P.2d 153. “If there are reasons both for 7 and against a court’s decision, there is no abuse of discretion.” State v. Smith, 2016- 8 NMSC-007, ¶ 27, 367 P.3d 420. 9 {11} Victim was convicted of aggravated assault with a deadly weapon in 2007. 10 Before trial, Defendant moved to reconsider an earlier ruling in which the district 11 court had ruled that the name of Victim’s crime was inadmissible. Defendant sought 12 to introduce the name of Victim’s crime to support his self-defense claim. The State 13 objected, arguing that the evidence was barred by Rule 11-404(B) NMRA and was 14 unfairly prejudicial. The district court, relying on State v. Maples, 2013-NMCA-052, 15 ¶ 18, 300 P.3d 749, ruled that under Rule 11-405(B) NMRA, Defendant could testify 16 about the conviction as a specific instance of Victim’s violent conduct to establish 17 Defendant’s reasonable fear of Victim if Defendant had knowledge of the conviction. 18 Defendant then testified on voir dire outside the presence of the jury that at the time 19 of the shooting, he did not know the name of the crime that Victim had committed, did
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1 not know the facts of that crime, and did not know how much time in jail Victim had 2 served, if any. Defendant did say that when he met Victim for the first time, Victim 3 told him that he had “served eighteen months in prison for beating the shit out of some 4 guy . . . with a tool of some sort.” 5 {12} After Defendant testified on voir dire, the district court ruled as follows:
6 His knowledge of a conviction is distinguishable from him having 7 knowledge of the past violent act. [Defendant] didn’t know who the 8 victims were and he didn’t know what weapon was used—his testimony 9 conflicted. . . . I’m not going to allow reference to the specific 10 conviction. Absolutely the fact that he was convicted of a felony, comes 11 in under [Rule] 11-609 [NMRA]. I will, however, because I do not want 12 to deny [Defendant] an opportunity to develop his defense of self- 13 defense—and is that accurate? . . . There were two other incidences? 14 [Defense counsel confirmed this was correct.] Okay, so that will allow 15 him to develop his self-defense if he wishes to testify as to that, 16 additionally, . . . certainly you can ask [Victim] if he testifies, “didn’t 17 you threaten to beat him up like you beat someone else up?” You know, 18 you can inquire into that, but you can’t inquire as to, serving eighteen 19 months in prison for anything . . . or go into the specific conviction. That 20 is my ruling and I believe that that’s supported by everything that I 21 already read into the record.
22 The court also ruled that evidence about the specific facts of Victim’s offense was not 23 admissible as proof of a common scheme under Rule 11-404(B) 24 {13} At trial, while cross-examining Victim before the jury, Defendant asked Victim 25 if he told Defendant that he had “beaten the crap out of a dude with a wrench or a tool 26 and had done eighteen months inside,” despite the court’s order not to mention the 27 length of the sentence. Victim stated that he did not recall having such a conversation.
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1 Defendant later testified in his own defense, and said that he felt intimidated by 2 Victim because of a conversation they had the first time they met, but he did not tell 3 the jury what Victim had said to him. 4 {14} Defendant now argues that the name of Victim’s crime was admissible for 5 impeachment purposes under Rule 11-609, and that it was central to his self-defense 6 claim, because it contributed to Defendant’s fear of Victim on the date of the shooting. 7 Although the fact of a prior conviction may be admitted for impeachment purposes 8 under Rule 11-609, it is subject to the balancing test required by Rule 11-403 NMRA. 9 See Rule 11-609(A)(1)(a) (providing that evidence of a crime punishable by death or 10 more than one year of imprisonment used to attack a witness’s character for 11 truthfulness “must be admitted, subject to Rule 11-403 . . . , in a civil case or in a 12 criminal case in which the witness is not a defendant”). Rule 11-403 provides that 13 “[t]he court may exclude relevant evidence if its probative value is substantially 14 outweighed by a danger of . . . unfair prejudice[.]” As we explained in State v. Lucero, 15 1982-NMCA-102, ¶ 12, 98 N.M. 311, 648 P.2d 350,
16 [s]ome of the factors which should be considered by the trial court when 17 deciding whether to admit evidence of prior convictions not involving 18 dishonesty, for impeachment purposes, include (1) the nature of the 19 crime in relation to its impeachment value as well as its inflammatory 20 impact; (2) the date of the prior conviction and witness’s subsequent 21 history; (3) similarities, and the effect thereof, between the past crime 22 and the crime charged; (4) a correlation of standards expressed in Rule 23 [11-609(A)] with the policies reflected in Rule [11-]404 . . . ; (5) the
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1 importance of the [witness’s] testimony[;] and (6) the centrality of the 2 credibility issue.
3 {15} For convictions less than ten years old where the crime was punishable by death 4 or imprisonment for more than one year, Rule 11-609(A)(1)(a) provides that when 5 “attacking a witness’s character for truthfulness by evidence of a criminal 6 conviction[,] . . . [such evidence] must be admitted, subject to Rule 11-403 . . . , in a 7 civil case or in a criminal case in which the witness is not a defendant[.]” The name 8 of the crime, however, does not have to be admitted in all cases. See State v. Samora, 9 2016-NMSC-031, ¶ 45, 387 P.3d 230 (confirming that district court properly excluded 10 names of victim’s prior felonies while still allowing the defendant to refer to the 11 existence of those convictions); see also State v. Trejo, 1991-NMCA-143, ¶ 14, 113 12 N.M. 342, 825 P.2d 1252 (noting that the defendant could have mitigated unfair 13 prejudice caused by evidence of prior convictions by requesting that the jury not be 14 told the names of the crimes). 15 {16} Evidence of specific instances of a victim’s prior violent conduct may be 16 admissible to show the defendant’s reasonable fear of the victim when presenting a 17 self-defense claim, because fear of the victim is an essential element of the defense. 18 See Rule 11-405(B) (“When a person’s character . . . is an essential element of a 19 charge, claim, or defense, the character . . . may also be proved by relevant specific 20 instances of conduct.); Maples, 2013-NMCA-052, ¶ 18 (stating that specific instances
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1 of the victim’s violent conduct are admissible to show the defendant’s subjective fear 2 of the victim); State v. Armendariz, 2006-NMSC-036, ¶ 17, 140 N.M. 182, 141 P.3d 3 526 (holding that fear of the victim is an essential element of a self-defense claim), 4 overruled on other grounds by Swick, 2012-NMSC-018, ¶ 31. Such evidence, 5 however, may only be admitted when the defendant can “establish that he or she had 6 knowledge of the victim’s past violent acts at the time of the incident.” Maples, 2013- 7 NMCA-052, ¶ 18. “Otherwise, the evidence would not be relevant to the defendant’s 8 subjective state of mind during the encounter and his or her belief in the necessity of 9 self defense.” Id. (citing State v. Baca, 1992-NMSC-055, ¶ 7, 114 N.M. 668, 845 P.2d 10 762). 11 {17} In this case, Victim’s crime was punishable by imprisonment for more than one 12 year, so testimony about the fact of that conviction was properly admitted to impeach 13 Victim’s character for truthfulness. See Rule 11-609(A)(1); Trejo, 1991-NMCA-143, 14 ¶ 10 (“[E]ven if the alleged crime did not involve dishonesty, there is proven 15 dishonesty when the defendant goes to trial, denies the offense, and then is 16 convicted.”). As for the name of Victim’s crime, the district court considered the 17 prejudicial impact to the State of naming the crime, weighed the fact that it was nine 18 years old and did not involve Defendant, and balanced that against Defendant’s self- 19 defense claim. The court ultimately determined that excluding the name of the crime
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1 would not prevent Defendant from developing his self-defense claim and ruled that 2 Defendant could ask Victim if he told Defendant about a crime he had committed. The 3 district court thus considered all of the relevant factors identified in Lucero and 4 determined that the prejudicial impact to the State of naming Victim’s crime 5 outweighed its probative value. See Lucero, 1982-NMCA-102, ¶ 12. 6 {18} The district court also properly determined that the crime’s name was irrelevant 7 to Defendant’s self-defense claim because Defendant did not know what it was at the 8 time of the shooting, and thus it could not have contributed to his claimed fear of 9 Victim. See Maples, 2013-NMCA-052, ¶ 18. The district court properly allowed 10 Defendant to explore the threatening statement Victim supposedly made about his 11 crime as a basis for Defendant’s fear of Victim, though Victim testified that he could 12 not recall making that statement. 13 {19} The district court’s exclusion of the name of Victim’s crime did not prevent 14 Defendant from fully developing his self-defense claim. Defendant introduced ample 15 evidence to support his claim that he was afraid of Victim, including his testimony 16 that he was intimidated by Victim after meeting him the first time; his testimony that 17 he was afraid of Victim due to multiple encounters with him, including his claim that 18 Victim started a fist fight by “rushing” him on a previous occasion; and his testimony 19 that Victim previously brandished a rifle while screaming at him. Defendant also
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1 testified that on the date of the shooting, Victim was the aggressor because he sprinted 2 toward Defendant’s vehicle with a bat and threw a beer bottle at his vehicle. 3 {20} Defendant also appears to argue that he was not allowed to testify that Victim 4 had told him about beating up another man with a tool because the district court 5 admonished defense counsel during Victim’s cross-examination not to question any 6 other witness, including Defendant, about the prior conviction. The district court did 7 not “admonish” defense counsel not to question any other witnesses about the 8 statement Victim allegedly made to Defendant, but rather cautioned defense counsel 9 not to discuss Victim’s claimed eighteen-month sentence with any other witnesses, 10 since doing so expressly violated the court’s order. We do not interpret the court’s 11 order as prohibiting Defendant from testifying about what Victim told him because 12 the court did not specifically prohibit it. Moreover, the district court stated earlier that 13 it did not intend to limit Defendant from developing his self-defense claim. If 14 Defendant was confused about whether the district court’s order precluded him from 15 testifying about what Victim allegedly said to him when they first met, Defendant 16 should have asked for clarification. 17 {21} We conclude that the district court’s ruling was not “clearly against the logic 18 and effect of the facts and circumstances of the case[ or] . . . clearly untenable or not 19 justified by reason.” See Smith, 2016-NMSC-007, ¶ 27 (internal quotation marks and
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1 citations omitted).
2 IV. The District Court Did Not Abuse Its Discretion by Allowing Victim’s 3 Neighbor to Testify
4 {22} Defendant argues that the district court abused its discretion by allowing the 5 State to call Victim’s neighbor, Christine Santos, to testify about an incident that 6 occurred one week before the shooting in which Defendant rode in a vehicle driven 7 by his friend, Justin Ledbetter, who then drove quickly through Ms. Santos’ circular 8 driveway while playing loud music and nearly hitting her truck. Defendant argues that 9 the evidence was cumulative and unfairly prejudicial. We reject Defendant’s claim. 10 {23} Before trial, Defendant objected to Ms. Santos’ testimony, arguing that it would 11 be irrelevant and unfairly prejudicial. The State argued that her testimony was relevant 12 to rebut Defendant’s claim that he was afraid of Victim, because if he were truly afraid 13 he would have likely avoided Victim’s neighborhood. The district court allowed Ms. 14 Santos to testify about her encounter with Defendant and Mr. Ledbetter as part of the 15 State’s rebuttal, but prohibited her from saying that Mr. Ledbetter’s driving was 16 “reckless” or “careless” or testifying that she called the police. 17 {24} At trial, Ms. Santos testified that she had seen Defendant one week before the 18 shooting: he was riding in Mr. Ledbetter’s car as Mr. Ledbetter drove rapidly down 19 her street and into her driveway, while playing loud music, and almost hitting her 20 truck. Ms. Santos further testified that Defendant was not driving, that he did not say
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1 anything or make any gestures, and that he was not in control of the vehicle. 2 {25} “We review the admission of the questioned testimony under an abuse of 3 discretion standard to see whether the probative value of the evidence was outweighed 4 by any prejudicial effect.” State v. McDonald, 1998-NMSC-034, ¶ 14, 126 N.M. 44, 5 966 P.2d 752. Relevant evidence is that which has “any tendency to make a fact more 6 or less probable than it would be without the evidence” so long as “the fact is of 7 consequence in determining the action.” Rule 11-401. 8 {26} We conclude that this evidence was properly admitted to help rebut Defendant’s 9 claim that he feared Victim. Though this evidence is not particularly strong because 10 Defendant was not the driver, it does meet the minimum standard of relevance of 11 having “any tendency” to make Defendant’s fear of Victim less probable. It showed 12 that Defendant was in the area where Victim lived, while a person who was truly 13 afraid of Victim would likely have avoided the area. See Rule 11-401. The district 14 court addressed the danger of unfair prejudice by prohibiting Ms. Santos from labeling 15 Mr. Ledbetter’s driving as reckless, careless, or from testifying that she called the 16 police. Additionally, Ms. Santos testified that Defendant was not driving the car, and 17 thus the jury was able to consider whether the evidence truly undermined his self- 18 defense claim. 19 {27} Defendant argues that the evidence was cumulative, serving only to bolster
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1 Victim’s allegations of harassment. We hold that the evidence was not cumulative 2 simply because other evidence was introduced that Defendant repeatedly drove slowly 3 near Victim’s house while playing loud music. Defendant testified that he has friends 4 in the area and is often in the neighborhood visiting them. Ms. Santos’ testimony 5 showed that Defendant was not only in the neighborhood, but practically across the 6 street from Victim’s house, which was not on a through street. 7 {28} Because there were reasons both for and against the district court’s decision and 8 the decision was not clearly against the logic and effect of the facts and circumstances 9 of the case, clearly untenable, or unjustified by reason, the district court did not abuse 10 its discretion by allowing Ms. Santos’ testimony. See Smith, 2016-NMSC-007, ¶ 27.
11 V. The District Court Did Not Abuse Its Discretion by Refusing to Grant a 12 Mistrial Due to a Juror’s Acquaintance With a Witness
13 {29} Defendant’s final claim is that the district court abused its discretion by not 14 granting a mistrial when it was made aware, during jury deliberations and after the 15 alternates had been excused, that one of the jurors knew Ms. Santos personally. The 16 matter was brought to the court’s attention five minutes into jury deliberations when 17 the juror sent out a note that stated “I know Chrissy Leyva. She is a family friend.” 18 {30} The district court questioned the juror and learned that “Leyva” was Ms. 19 Santos’ childhood surname. The court questioned the juror about the extent of her 20 relationship with Ms. Santos, and whether she could still be fair and impartial and not
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1 give Ms. Santos’ testimony any undue weight. The juror said that she knew Ms. 2 Santos from childhood, had not seen Ms. Santos for eight or nine months, does not see 3 her often, and that she could be fair and impartial and would consider all of the 4 evidence. Defense counsel then questioned the juror about whether her service on the 5 jury would make any future encounters with Ms. Santos uncomfortable. The juror 6 responded that it would not make her feel embarrassed or concerned to see Ms. Santos 7 after the trial ended, but that she would feel uncomfortable discussing the case with 8 Ms. Santos. 9 {31} Defense counsel then moved for a mistrial, relying on the juror’s statement that 10 she would feel uncomfortable talking about the matter with Ms. Santos after the trial 11 was over, and arguing that the juror might therefore be more likely to credit Ms. 12 Santos’ testimony. The district court denied the motion. 13 {32} Defendant now argues that because the district court did not ask the juror 14 whether she had discussed her relationship or opinion of Ms. Santos with fellow jurors 15 and did not ask her why she did not speak up as soon as she saw her friend on the 16 witness stand, the district court failed to adequately determine whether the entire jury 17 was prejudiced. We note that Defendant was given the opportunity to ask these 18 questions of the juror himself but did not do so. 19 {33} “We review a trial court’s denial of a motion for mistrial under an abuse of
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1 discretion standard.” State v. Gardner, 2003-NMCA-107, ¶ 3, 134 N.M. 294, 76 P.3d 2 47 (internal quotation marks and citation omitted). Where “the underlying issue 3 involves a deadlocked jury or possible jury bias, the trial judge should be allowed 4 broad discretion whether to declare a mistrial.” State v. Saavedra, 1988-NMSC-100, 5 ¶ 9, 108 N.M. 38, 766 P.2d 298. 6 {34} In this case, there is no evidence that the juror disregarded the district court’s 7 instruction not to inform other jurors that she knew Ms. Santos, and we presume that 8 jurors follow instructions provided by the court. See Gardner, 2003-NMCA-107, ¶¶ 9 10, 12. Thus, Defendant’s claim that other jurors might have been biased by the 10 juror’s relationship with Ms. Santos is unfounded. If Defendant was concerned that 11 the jury had already been made aware of the juror’s relationship with Ms. Santos, he 12 should have asked the juror if she had already told the rest of the jury that she knew 13 Ms. Santos. See State v. Sanchez, 1995-NMSC-053, ¶ 11, 120 N.M. 247, 901 P.2d 178 14 (“We believe that by failing to question the juror during voir dire, [the a]ppellants 15 waived any objection to the juror’s participation in the trial.”). Without making such 16 an inquiry, Defendant’s concerns are speculative and unproven. Gardner, 2003- 17 NMCA-107, ¶ 12 (declining to find that the district court abused its discretion by not 18 declaring a mistrial when the alleged juror bias was speculative in nature). 19 {35} The district court was convinced after voir dire that the juror could still be fair
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1 and impartial. This was not an abuse of the district court’s broad discretion, because 2 the court assessed the juror’s potential bias and was satisfied that the juror could still 3 be fair and impartial. See Saavedra, 1988-NMSC-100, ¶ 9 (noting that a district court 4 has broad discretion in matters involving juror bias). 5 CONCLUSION 6 {36} For the reasons set forth above, we affirm the district court’s judgment and 7 sentence. 8 {37} IT IS SO ORDERED.
9 ______________________________ 10 EMIL J. KIEHNE, Judge
11 WE CONCUR:
12 ___________________________________ 13 LINDA M. VANZI, Chief Judge
14 ___________________________________ 15 HENRY M. BOHNHOFF, Judge