State v. Sanchez

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 29,261 & 29,341 10 (Consolidated)

11 CHRISTOPHER SANCHEZ, 12 Defendant-Appellant.

13 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 14 J. Richard Brown, District Judge

15 Gary K. King, Attorney General 16 Anita Carlson, Assistant Attorney General 17 Santa Fe, NM

18 for Appellee

19 Ruben S. Cortez 20 Hobbs, NM

21 for Appellant 22 MEMORANDUM OPINION 23 VANZI, Judge.

1 Defendant appeals his convictions for trafficking a controlled substance 2 (possession with intent to distribute), cocaine, and possession of a controlled 3 substance, marijuana. We affirm Defendant’s convictions. 4 BACKGROUND 5 Defendant was arrested on March 2, 2007, and charged with trafficking a 6 controlled substance (transfer to another) and possession of marijuana. The State filed 7 a criminal information charging Defendant with those offenses. Defendant moved to 8 require disclosure of the identity and location of the confidential informant who had 9 been instrumental in Defendant’s arrest. At a hearing on Defendant’s motion in 10 October 2007, the State apparently realized that the criminal information did not 11 conform with its theory of the case. Shortly after the hearing, the State filed an 12 amended information, changing the charge of trafficking a controlled substance 13 (transfer to another) to trafficking (possession with intent to distribute). The 14 possession of marijuana charge was unchanged. 15 Defendant requested a preliminary hearing on the amended information. The 16 district court granted Defendant’s motion stating that “[s]ince the amended 17 information alleged a substantially different factual basis for a violation of the 18 trafficking statute, Defendant was entitled to a new preliminary hearing.” The district 19 court also found that there was “no evidence that the [S]tate purposely drafted any

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1 pleading incorrectly or in any way sought an unfair advantage by violating the 2 relevant procedural rules.” Following the preliminary hearing and bind over, on 3 January 14, 2008, the State filed an amended criminal information in district court, 4 restating the charges against Defendant. Defendant was arraigned on the second 5 criminal information on April 29, 2008. Defendant’s trial in this matter was held on 6 October 9 and 10, 2008. At trial, Defendant was found guilty of both possession 7 charges. 8 Defendant raises six issues on appeal. Defendant argues that: (1) the district 9 court erred in finding that the State did not intentionally circumvent the six-month 10 rule; (2) the district court erred in denying Defendant’s motion to dismiss for violation 11 of his speedy trial right; (3) the district court erred in denying Defendant’s motion for 12 a mistrial based upon the court’s failure to voir dire jurors as to their law enforcement 13 connections; (4) the district court erred in denying Defendant’s motion for a mistrial 14 based upon the court’s failure to present the witnesses to the prospective jurors prior 15 to final jury selection; (5) the district court erred in denying Defendant’s motion for 16 a mistrial based on inaccurate statements made by the State in its opening statement; 17 and (6) that cumulative error denied Defendant a fair trial. We address each of 18 Defendant’s arguments in turn. 19 DISCUSSION

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1 The Six-Month Rule 2 Defendant argues that the district court erred when it denied his motion to 3 dismiss because the State intentionally circumvented the provisions of the six-month 4 rule set forth in Rule 5-604(B)-(E) NMRA. 5 We begin by noting that since the parties have briefed this case the Supreme 6 Court has withdrawn Rule 5-604(B)-(E) for all pending cases as of May 12, 2010. 7 State v. Savedra, 2010-NMSC-025, ¶ 9, 148 N.M. 301, 236 P.3d 20 (observing that 8 “the six-month rule has become an unnecessary and sometimes counterproductive 9 method for protecting a defendant’s right to a speedy trial” and withdrawing the six- 10 month rule provisions set forth in Rule 5-604(B)-(E)). District courts are instead 11 directed to utilize a speedy trial analysis when determining whether charges against 12 a defendant should stand. Savedra, 2010-NMSC-025, ¶ 8. This rule change applies 13 to those cases still pending in the district court after Savedra was announced. Id. ¶ 9; 14 see also Rule 5-604 (revised 2010) compiler’s note (available at 15 http://www.nmcompcomm.us/nmrules/nmruleset.aspx?rs=5) (explaining that 16 paragraph B, the time for commencement of trial in the district court, is withdrawn for 17 cases pending in the district court on or after May 12, 2010); N.M. Mining Comm’n 18 v. United Nuclear Corp., 2002-NMCA-108, ¶ 4, 133 N.M. 8, 57 P.3d 862 (reiterating 19 that “a case must be pending in the tribunal that will be affected by the rule change for

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1 Article IV, Section 34 to apply” and stating that no act of the Legislature shall affect 2 the right or remedy of either party, or change the rules of evidence or procedure in any 3 pending case (emphasis omitted)); State v. DeBaca, 90 N.M. 806, 808, 568 P.2d 1252, 4 1254 (Ct. App. 1977) (explaining that Article IV, Section 34 of the New Mexico 5 Constitution applies to court rules as well as legislation); but see State v. Pieri, 2009- 6 NMSC-019, ¶¶ 19-20, 146 N.M. 155, 207 P.3d 1132 (holding Article IV, Section 34 7 does not apply to court rules where the rule does not have the effect of a legislative 8 act and applying the rule change prospectively with limited retroactivity). Because 9 Defendant’s case was already on appeal at the time the rule change was announced, 10 we analyze his claims under the old rule just as the Supreme Court did in Savedra. 11 See, e.g., Savedra, 2010-NMSC-025, ¶ 9 (abolishing the six-month rule for district 12 courts but applying the old rule to the defendants’ cases). 13 In this case, Defendant argues that the State intentionally circumvented the six- 14 month rule by amending the criminal information in order “to gain a tactical 15 advantage over [Defendant].” Whether there is bad faith or intentional delay by the 16 State is a question of fact. State v. Bolton, 1997-NMCA-007, ¶ 13, 122 N.M. 831, 932 17 P.2d 1075 (filed 1996), abrogated on other grounds by Savedra, 2010-NMSC-025, 18 ¶ 2. We review the district court’s determination that there was no intent to 19 circumvent the rule for substantial evidence. See State v. Rayburns, 2008-NMCA-

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1 050, ¶ 22, 143 N.M. 803, 182 P.3d 786. Substantial evidence is “such relevant 2 evidence as a reasonable mind might accept as adequate to support a conclusion.” 3 State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal 4 quotation marks and citation omitted). “Absent an intent to circumvent the six-month 5 rule, an amended complaint containing significant changes in the offenses charged 6 supersedes the original complaint for purposes of the [six-month] rule.” State v. Vigil, 7 114 N.M. 431, 433, 839 P.2d 641, 643 (Ct. App. 1992). “The State has the burden of 8 demonstrating a good-faith use of the procedures involved and that such procedures 9 have not been utilized to circumvent the operation of the six-month rule.” Id. 10 In its order denying Defendant’s motion to dismiss, the district court noted that 11 at an earlier hearing on Defendant’s motion to require disclosure of the identity and 12 location of the confidential informant, the State realized that its criminal information 13 improperly charged Defendant with trafficking (transfer to another). Soon thereafter, 14 the State filed an amended information charging Defendant with trafficking 15 (possession with intent to distribute), in place of trafficking (transfer to another). The 16 district court found that “[t]here is no evidence that the [S]tate purposely drafted any 17 pleading incorrectly or in any way sought an unfair advantage by violating the 18 relevant procedural rules” when it amended the trafficking charge.

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1 Defendant argues that the State aggressively resisted Defendant’s motion to 2 discover the identity of the confidential informant and that it was not until the State 3 realized that the officer did not send the cocaine from the informant’s “buy” for 4 testing that the State changed its trafficking theory to possession with the intent to 5 distribute. Even assuming Defendant’s argument is true, he nevertheless fails to 6 allege that the State amended the complaint with an intent to circumvent the time limit 7 for bringing him to trial. At most, Defendant’s contention establishes that the State 8 realized it needed to amend the criminal information to conform to the evidence. 9 Defendant has made no showing that the State’s amendment to the criminal 10 information was done for the purposes of obtaining an extension of the time limit for 11 trial from the original charges filed. See Vigil, 114 N.M. at 434, 839 P.2d at 644 12 (reversing the district court and holding that there was insufficient evidence that the 13 State intended to circumvent the six-month rule where the State amended the 14 complaint by replacing the drug possession charge with a drug paraphernalia charge 15 for which the complaint was amended). We determine that substantial evidence 16 supports the district court’s finding. Because the filing of the amended information 17 initiated a new case, the six-month period ran from the date of arraignment on April 18 29, 2008, and Defendant’s trial commenced within six months of arraignment.

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1 Therefore, the district court did not err in denying Defendant’s motion to dismiss 2 pursuant to the six-month rule. 3 Right to a Speedy Trial 4 Defendant next argues that the district court erred in denying Defendant’s 5 motion to dismiss for violation of his right to a speedy trial. Defendant asserts that the 6 district court erred because, although it weighed all the speedy trial factors at least 7 slightly in his favor, it denied any violation because the prejudice to Defendant was 8 not substantial enough to merit dismissal. We agree with the district court’s decision. 9 The United States Constitution guarantees that “[i]n all criminal prosecutions, 10 the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. 11 In order to determine whether a speedy trial violation has occurred, New Mexico 12 courts must weigh four factors: “(1) the length of delay, (2) the reason for delay, (3) 13 the defendant’s assertion of the right, and (4) prejudice to the defendant.” State v. 14 Plouse, 2003-NMCA-048, ¶ 34, 133 N.M. 495, 64 P.3d 522. These factors derive 15 from United States Supreme Court case, Barker v. Wingo, 407 U.S. 514 (1972), and 16 are sometimes referred to as the Barker factors. “In considering each of these factors, 17 we defer to the trial court’s factual findings but review de novo the question of 18 whether the defendant’s constitutional right was violated.” State v. Valencia, 2010- 19 NMCA-005, ¶ 11, 147 N.M. 432, 224 P.3d 659 (filed 2009) (alteration omitted)

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1 (internal quotation marks and citation omitted), cert. denied, 2009-NMCERT-012, 147 2 N.M. 600, 227 P.3d 90. 3 “When a speedy trial claim is made, the defendant must make a threshold 4 showing that the length of delay is presumptively prejudicial.” State v. Stock, 2006- 5 NMCA-140, ¶ 12, 140 N.M. 676, 147 P.3d 885 (internal quotation marks and citation 6 omitted). However, based on our Supreme Court’s recent holding in State v. Garza, 7 2009-NMSC-038, ¶ 21, 146 N.M. 499, 212 P.3d 387, a showing of a presumption of 8 prejudice serves only to trigger a further analysis based on the other three factors. 9 Prior to Garza, when a defendant made a showing of a presumptively prejudicial 10 delay, the burden then shifted to the State to affirmatively show that the balance of the 11 factors weighed in its favor; otherwise, “the reviewing court must conclude that a 12 defendant’s right to a speedy trial has been violated.” Id. ¶ 19. The Garza Court 13 modified this standard stating that “a ‘presumptively prejudicial’ length of delay is 14 simply a triggering mechanism” that requires further inquiry, and that the length of 15 delay becomes simply “one of four factors in the analysis, none of which alone are 16 sufficient to find a violation of the right.” Id. ¶¶ 21, 23. The Court went on to state 17 that, “where the defendant proves actual prejudice, . . . the [s]tate retains its burden of 18 persuasion on the ultimate question of whether the defendant’s right to a speedy trial 19 has been violated.” Id. ¶ 22 (citation omitted). Finally, the Court held that unless the

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1 length of delay and the reasons for the delay weigh heavily in the defendant’s favor, 2 a defendant must show “particularized prejudice of the kind against which the speedy 3 trial right is intended to protect” in order to prevail on a motion to dismiss for a 4 violation of the right to speedy trial. Id. ¶ 39. 5 In Garza, our Supreme Court also revised the guidelines for a presumptively 6 prejudicial delay, holding that “one year is the appropriate guideline for determining 7 when the length of delay for a simple case may be considered presumptively 8 prejudicial.” Id. ¶ 47. The Court similarly held that fifteen-month and eighteen- 9 month thresholds were appropriate for cases of intermediate complexity and complex 10 cases, respectively. Id. ¶ 48. Finally, the Garza Court held that the new guidelines 11 apply “to speedy trial motions to dismiss initiated on or after August 13, 2007.” Id. 12 ¶ 50. 13 Defendant made his first motion to dismiss on speedy trial grounds on 14 December 17, 2007, after the new guidelines were in effect. Further, the district court 15 found that the present case was a “simple case” for the purposes of determining 16 whether a speedy trial violation had occurred. We defer to the district court’s 17 determination of the complexity of the case. See State v. Coffin, 1999-NMSC-038, 18 ¶ 57, 128 N.M. 192, 991 P.2d 477 (stating that “the trial court is in the best position 19 to determine the complexity of a case”); see also Plouse, 2003-NMCA-048, ¶ 42 (“We

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1 give due deference to the district court’s findings as to the level of complexity.”). 2 Because the present case is a “simple case” in which the motion to dismiss on speedy 3 trial grounds was filed after August 13, 2007, we apply the new Garza guideline of 4 one year to determine whether a presumptively prejudicial delay has occurred. 5 Defendant argues, and the district court found, that “Defendant’s right to a 6 speedy trial attached on the day he was arrested, March 2, 2007.” Based on the March 7 2, 2007 date, Defendant states that the total length of the delay between his arrest and 8 the start of his trial on October 9, 2008, was nineteen months and seven days, which 9 is presumptively prejudicial under our Supreme Court’s guidelines as stated in Garza. 10 The State argues, on the other hand, that Defendant’s right to a speedy trial attached 11 on October 16, 2007, when the criminal information was amended to charge the crime 12 of trafficking by possession, which was the crime for which Defendant was actually 13 tried. By the State’s reasoning, the delay in trial is just under the one year guideline 14 established by Garza. 15 It is not necessary for us to decide on which date Defendant’s right attached 16 because, even assuming the delay falls within the presumptively prejudicial range, we 17 conclude that the first three Barker factors, the length of delay, the reason for the 18 delay, and Defendant’s assertion of his right, do not weigh sufficiently heavily in 19 Defendant’s favor to offset the fact that Defendant failed to meet his burden to show

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1 “particularized prejudice of the kind against which the speedy trial right is intended 2 to protect” as required by our Supreme Court’s holding in Garza. See Garza, 2009- 3 NMSC-038, ¶ 39. 4 In its order regarding Defendant’s first motion to dismiss, the district court 5 found that the primary reason for the delay was the State’s mistaken pleadings and, 6 therefore, the delay weighed somewhat against the State and slightly in favor of 7 Defendant. However, the court also found that there was “no evidence that the [S]tate 8 purposely drafted any pleading incorrectly or in any way sought an unfair advantage 9 by violating the relevant procedural rules” and, therefore, the delay was not per se 10 prejudicial. The district court did not state its findings and conclusions in its order 11 denying Defendant’s second motion to dismiss; however, we see nothing in the record 12 that would indicate that the additional five-month delay between the court’s first order 13 and the trial would cause the delay to weigh more heavily in Defendant’s favor. 14 Defendant asserted his right to a speedy trial several times during the course of 15 the proceedings, filing two demands for speedy trial. The first was a pro forma 16 pleading filed early in the case and the second was approximately six months into the 17 proceedings. Defendant also moved twice to have the charges dismissed on speedy 18 trial grounds. The district court found Defendant’s assertions to weigh slightly in his 19 favor. We find nothing in the record to indicate an alternative finding.

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1 With the first three factors weighing only slightly in favor of Defendant, under 2 Garza, Defendant must show “particularized prejudice of the kind against which the 3 speedy trial right is intended to protect” in order to prevail on his motion to dismiss. 4 See Garza, 2009-NMSC-038, ¶ 39. Based on our review of the record and 5 Defendant’s arguments, we conclude that the district court was correct in determining 6 that Defendant did not suffer significant prejudice as a result of the delay. 7 In Garza, our Supreme Court stated that prejudice to the defendant should be 8 analyzed based on three areas of interest: “(i) to prevent oppressive pretrial 9 incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the 10 possibility that the defense will be impaired.” Id. ¶ 35. The Garza Court also stated, 11 however, that some pretrial incarceration and anxiety are inherent in the process and, 12 therefore, the first two factors are weighed in the defendant’s favor “only where the 13 pretrial incarceration or the anxiety suffered is undue.” Id. 14 In the present case, Defendant posted a $50,000 surety bond on the date of his 15 arrest and remained at liberty for the remainder of the proceedings. The district court 16 found that while Defendant may have suffered public approbation and personal 17 anxiety and was subject to restriction based on the conditions of release, nothing in 18 this regard was “undue under the circumstances.” Again, we see nothing in the record

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1 that contradicts the court’s finding. Additionally, Defendant himself does not offer 2 any argument that he suffered this type of prejudice. 3 Defendant’s sole argument on appeal regarding the prejudice he suffered due 4 to the delay in bringing him to trial appears to relate to the third factor listed by the 5 Garza Court, impairment of defense. Defendant argues in general terms without 6 citation to the record that the State’s change in the charges denied Defendant timely 7 notice of the charges against him and impaired his ability to develop his defense. 8 The district court found that there was no evidence that Defendant’s ability to 9 prepare a defense was impaired in any way by the delay in trial. The State amended 10 the criminal information on October 16, 2007, to accurately reflect the charges on 11 which Defendant was ultimately tried on October 9, 2008. Based on this timetable, 12 we conclude that Defendant had almost a year to prepare his defense on the amended 13 charges; therefore, Defendant was not denied adequate notice, nor was his ability to 14 prepare his defense impaired by the delay. 15 Because Defendant did not demonstrate particularized prejudice attributable to 16 the length of delay and the other factors do not weigh heavily in Defendant’s favor, 17 we conclude that Defendant’s right to a speedy trial was not violated in this case.

18 Juror Law Enforcement Connections and Presentation of Witnesses to 19 Prospective Jurors

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1 Defendant argues that the district court erred in denying his motions for mistrial 2 by failing to voir dire prospective jurors as to their law enforcement connections and 3 by failing to present the witnesses to the prospective jurors. A district court’s ruling 4 on a motion for a mistrial is addressed to the sound discretion of the district court and 5 will not be disturbed absent a showing of abuse of discretion. See State v. McDonald, 6 1998-NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752; see also State v. Fry, 7 2006-NMSC-001, ¶ 52, 138 N.M. 700, 126 P.3d 516 (filed 2005). 8 Prior to being selected for the jury in the present case, the jurors were not 9 questioned as to their connections to law enforcement nor were the witnesses 10 presented to the potential jurors. After the jury was selected, several jurors reported 11 to the court that they knew one of the State’s law enforcement witnesses. The court 12 then individually interviewed the jurors in question and excused one of the jurors 13 because the juror stated that she would be inclined to believe the law enforcement 14 officer because she knew him. The district court found that the other jurors in 15 question did not know the witnesses well and could be fair and impartial as jurors. 16 We understand Defendant’s argument to be that it was the district court’s 17 responsibility to voir dire prospective jurors as to their law enforcement connections 18 and to present witnesses to the jury prior to final jury selection and that the district

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1 court erred by failing to perform these obligations. Defendant cites no authority to 2 support his assertions that these are in fact responsibilities of the court. 3 Additionally, Defendant makes no argument whatsoever as to the issue of voir 4 dire, but merely states the appropriate standard of review and how the issue was 5 preserved. As to the issue of witness presentation to potential jurors, Defendant 6 asserts that the issue is analogous to mid-trial publicity cases and states that the record 7 shows that “failure to present the witnesses to the prospective jury was ‘inherently 8 prejudicial’ to [Defendant’s] fair trial right.” However, Defendant makes no argument 9 illustrating the analogy he asserts, nor does he cite to any portion of the record to 10 support his allegation of prejudice. 11 Where a party fails to cite any portion of the record to support its factual 12 allegations, the Court need not consider its argument on appeal. See Santa Fe 13 Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819, 824 14 (1992). “We will not review unclear arguments, or guess at what [a party’s] 15 arguments might be.” Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 16 N.M. 339, 110 P.3d 1076. Additionally, this Court will not consider propositions that 17 are unsupported by citation to authority. ITT Educ. Servs., Inc. v. Taxation & Revenue 18 Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969. Where a party cites no

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1 authority to support an argument, we may assume no such authority exists. In re 2 Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). 3 Finally, we note that Defendant was free to question prospective jurors 4 regarding their law enforcement connections and to request that the witnesses be 5 presented to the potential jurors. Defendant did not ask such questions or make such 6 a request, and we determined that the district court did not abuse its discretion in 7 denying the motion for mistrial. See State v. Sanchez, 120 N.M. 247, 251, 901 P.2d 8 178, 182 (1995) (“[B]y failing to question the juror during voir dire, [the a]ppellants 9 waived any objection to the juror’s participation in the trial.”). 10 Misstatement of the Charges During Opening 11 Defendant argues that the district court erred in denying Defendant’s motion for 12 a mistrial based on a misstatement of the charges by the State during its opening 13 remarks. 14 During opening statements, the State misstated the charges against Defendant, 15 stating that Defendant was charged with possession of narcotics paraphernalia. The 16 State immediately corrected its mistake and apologized to the jury. Defendant 17 objected to the State’s remark and moved for a mistrial on the grounds that the 18 misstatement carried no probative value and was extremely prejudicial to Defendant. 19 The district court denied the motion, holding that any prejudice Defendant might have

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1 suffered was not significant because the primary charge against Defendant, trafficking 2 in narcotics, was closely related to the State’s misstated charged of possession of 3 narcotics paraphernalia. The court also reasoned that such an error would tend to hurt 4 the State more than Defendant because it indicates a lack of preparedness for trial or 5 a lack of evidence to support a related offense that was not charged. 6 “We review a trial court’s denial of a motion for mistrial under an abuse of 7 discretion standard.” State v. Gonzales, 2000-NMSC-028, ¶ 35, 129 N.M. 556, 11 8 P.3d 131. “[T]he trial court is in the best position to evaluate the significance of any 9 alleged prosecutorial errors.” State v. Duffy, 1998-NMSC-014, ¶ 46, 126 N.M. 132, 10 967 P.2d 807. “The trial court’s determination of these questions will not be disturbed 11 unless its ruling is arbitrary, capricious, or beyond reason.” Id. 12 We agree with the district court that, under the circumstances, any prejudice due 13 to the prosecutor’s remark was minimal. The State corrected its mistake immediately 14 and there is no indication in the record that the prosecutor repeated the misstatement. 15 Further, at trial, evidence of two scales used to weigh narcotics, a glass plate, and 16 rolled-up dollar bills alleged to have been used in the ingestion of narcotics (all of 17 which could be considered narcotics paraphernalia) were introduced into evidence 18 without objection from Defendant.

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1 We conclude that the isolated misstatement by the State in its opening statement 2 did not deprive Defendant of a fair trial. State v. Brown, 1997-NMSC-029, ¶ 23, 123 3 N.M. 413, 941 P.2d 494 (“The general rule is that an isolated comment made during 4 closing argument is not sufficient to warrant reversal.”). Accordingly, we determine 5 that the district court did not abuse its discretion in denying Defendant’s motion to 6 dismiss. 7 Cumulative Error 8 Defendant argues that cumulative error denied him a fair trial. “The doctrine 9 of cumulative error requires reversal when a series of lesser improprieties throughout 10 a trial are found, in aggregate, to be so prejudicial that the defendant was deprived of 11 the constitutional right to a fair trial.” Duffy, 1998-NMCA-014, ¶ 29. The cumulative 12 error doctrine is to be strictly applied and may not be successfully invoked if the 13 record as a whole demonstrates that the defendant received a fair trial. See State v. 14 Woodward, 121 N.M. 1, 12, 908 P.2d 231, 242 (1995). When there is no error, “there 15 is no cumulative error.” State v. Aragon, 1999-NMCA-060, ¶ 19, 127 N.M. 393, 981 16 P.2d 1211. Because we see no error or any indication that Defendant was denied a 17 fair trial, we determine that Defendant has not demonstrated cumulative error in the 18 present case.

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1 CONCLUSION 2 For the reasons set forth above, we affirm the district court’s ruling. 3 IT IS SO ORDERED.

4 __________________________________ 5 LINDA M. VANZI, Judge

6 WE CONCUR:

7 _________________________________ 8 CYNTHIA A. FRY, Chief Judge

9 _________________________________ 10 ROBERT E. ROBLES, Judge