State v. Sandoval

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. NO. 28,437 10 TIMOTHY SANDOVAL, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 13 John W. Pope, District Judge

14 Gary K. King, Attorney General 15 Andrew S. Montgomery, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee 18 19 David Henderson 20 Santa Fe, NM

21 for Appellant

22 MEMORANDUM OPINION 23 GARCIA, Judge. 24 Timothy Sandoval (Defendant) appeals his conviction for the second-degree 25 murder of Jeff McCormick (McCormick), contrary to NMSA 1978, Section 30-2-1(B)

1 (1994). Defendant raises six issues on appeal: (1) the district court abused its 2 discretion by limiting evidence of a past altercation between Defendant and the 3 alleged victims; (2) the jury instructions for self-defense and defense of another were 4 an incorrect statement of law and constituted fundamental error; (3) prosecutorial 5 misconduct constituted fundamental error; (4) the district court erred in failing to 6 conduct an evidentiary hearing regarding improper influence on the jury and juror 7 bias; (5) the district court erred in denying Defendant’s request for a stipulation of fact 8 to the content of allegedly lost evidence; and (6) cumulative error occurred. In a 9 previous Opinion, this Court concluded that an error in the jury instructions 10 constituted fundamental error, reversed Defendant’s convictions, and remanded for 11 a new trial. State v. Sandoval, 2010-NMCA-025, ¶ 34, 147 N.M. 465, 225 P.3d 795, 12 rev’d by 2011-NMSC-022, 150 N.M. 224, 258 P.3d 1016 (Sandoval I). Our Supreme 13 Court subsequently reversed this Court’s determination that the error in the jury 14 instructions constituted fundamental error and remanded this case to this Court to 15 consider the remaining issues raised by Defendant on appeal. Sandoval I , 2011- 16 NMSC-022, ¶ 30. We affirm Defendant’s conviction. 17 BACKGROUND 18 Defendant was charged with (1) one open count of murder as to Ross “Chino” 19 Ramos (Ramos); (2) one open count of murder as to McCormick; (3) one attempted 20 open count of murder as to James Arbizu (Arbizu); and (4) tampering with evidence.

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1 The State dismissed the attempted murder charge prior to trial, and the district court 2 directed a verdict of acquittal on the tampering charge. The jury acquitted Defendant 3 of the murder of Ramos, but convicted him of second-degree murder as to 4 McCormick. The jury also found Defendant guilty of using a firearm to commit the 5 crime. Defendant now appeals his second-degree murder conviction as to 6 McCormick. 7 DISCUSSION 8 Evidence Regarding the Prior Altercation 9 Defendant argues that the district court abused its discretion by limiting the 10 testimony of Hector Munoz, Sr. (Munoz), and Arbizu regarding a prior altercation 11 involving Arbizu and Ramos or their families. We review a district court’s admission 12 or exclusion of evidence for an abuse of discretion. State v. Armendariz, 2006- 13 NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d 526. “An abuse of discretion arises when 14 the evidentiary ruling is clearly contrary to logic and the facts and circumstances of 15 the case.” Id. 16 Pursuant to Rule 11-404(A)(2) NMRA, a defendant may introduce evidence of 17 a pertinent character trait of the victim. Rule 11-405(A) NMRA generally requires 18 proof be in the form of reputation or opinion testimony. Specific instances of conduct 19 are admissible where the victim’s character is an essential element of a charge, claim, 20 or defense. Rule 11-405(B). However, Rule 11-403 NMRA provides that even

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1 relevant evidence may be excluded “if its probative value is substantially outweighed 2 by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by 3 considerations of undue delay, waste of time or needless presentation of cumulative 4 evidence.” 5 Whether evidence of a victim’s prior bad acts is admissible depends on the 6 purpose for which it is offered. See State v. Gallegos, 2007-NMSC-007, ¶ 22, 141 7 N.M. 185, 152 P.3d 828 (reasoning that Rule 11-404(B) requires “the proponent of 8 the evidence . . . to identify and articulate the consequential fact to which the evidence 9 is directed before it is admitted”). In Armendariz, our Supreme Court clarified that 10 where a defendant claims self-defense, “evidence of specific instances of the victim’s 11 prior violent conduct of which the defendant was aware may be admitted to show the 12 defendant’s fear of the victim.” 2006-NMSC-036, ¶ 17. However, “evidence of 13 specific instances of a victim’s prior violent conduct may not be admitted to show that 14 the victim was the first aggressor.” Id. Armendariz further clarified that “a victim’s 15 violent character is not an essential element of a defendant’s claim of self-defense, but 16 rather circumstantial evidence that tends to show that the victim acted in conformity 17 with his or her character on a particular occasion.” Id. As a result, Rule 11-405(B) 18 permits only reputation or opinion evidence, and not specific instances of prior 19 conduct, to prove the victim was the first aggressor. Id. 20 When questioned by the district court about the relevance of Munoz’s

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1 testimony, Defendant explained, “There’s continued animosity between [the Ramos] 2 family directed toward the Munoz family. And there’s one particular occasion where 3 [Munoz] would testify . . . that [Defendant] and [Munoz’s son] were walking down 4 the road, and these individuals came out and threatened them.” The court ruled that 5 the testimony was inadmissible for this purpose. In a motion for a new trial, 6 Defendant argued that the district court erred by excluding Munoz’s testimony. 7 Defendant asserted that Munoz would have testified that “he had personally observed 8 members of the Arbizu and Ramos family verbally accosting Defendant and 9 discharging firearms in the air.” Defendant further asserted that when “speaking to 10 some jurors after the trial, several jurors indicated that had they had some background 11 information on the prior incident and the propensity of the alleged victims towards 12 violence, [and that] this [testimony] would have substantially influenced their 13 thinking.” (Emphasis added.) 14 We conclude that Defendant failed to identify and articulate a consequential fact 15 other than propensity for admitting Munoz’s testimony regarding the prior bad acts 16 of the alleged victims. See Gallegos, 2007-NMSC-007, ¶ 22. Defendant argued that 17 Munoz’s testimony was relevant because it would show that the alleged victims 18 threatened Defendant during a prior incident and “the propensity of the alleged 19 victims towards violence[.]” However, these purposes fall squarely under the holding 20 in Armendariz, prohibiting a court from admitting specific instances of a victim’s

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1 prior violent conduct to show the victim’s propensity toward violence or that the 2 victim was the first aggressor. See 2006-NMSC-036, ¶ 17. As a result, we conclude 3 that the district court did not abuse its discretion in excluding Munoz’s testimony. 4 On appeal, Defendant presents two new theories as to why the district court 5 erred in excluding Munoz’s testimony: (1) it was relevant to show the basis of 6 Defendant’s fear of the alleged victims; and (2) it became admissible after Arbizu 7 opened the door by referring to the prior incident. Defendant, however, failed to raise 8 these arguments of admissibility below, and we decline to consider them on appeal. 9 See Gallegos, 2007-NMSC-007, ¶ 25 (reasoning that the proponent of Rule 11-404(B) 10 evidence must “identify and articulate the consequential fact to which the evidence is 11 directed” as well as “cogently inform the court . . . [of] the rationale for admitting the 12 evidence to prove something other than propensity”). 13 Defendant further argues that the district court foreclosed a defense by 14 preventing Defendant from fully cross-examining Arbizu regarding the prior 15 altercation and whether Arbizu confused Defendant with someone else. During 16 Arbizu’s testimony, a juror asked why he referred to Defendant as “T.J.” if he did not 17 know Defendant. Arbizu responded, “Because a while back we had an incident in 18 Meadow Lake, and that’s when they jumped us.” During a bench conference, 19 Defendant asked the district court to allow him to question Arbizu further about the 20 prior incident. Defendant clarified that he would not mention Munoz, but he wanted

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1 to question Arbizu regarding whether Arbizu confused Defendant with someone else. 2 The court allowed cross-examination regarding the prior incident for purposes of the 3 mistaken identity issue, but sustained the State’s objection when Defendant began to 4 question Arbizu about Munoz. 5 The record reflects that the district court allowed Defendant to cross-examine 6 Arbizu for the requested purpose of exploring whether Arbizu confused Defendant 7 with someone else. The record further reflects that the court only limited the cross- 8 examination when Defendant began to question Arbizu about Munoz, contrary to 9 Defendant’s earlier assertion that he would not mention Munoz. To the extent that 10 Defendant argues that the district court erred by not allowing him to fully cross- 11 examine Arbizu, we conclude that Defendant failed to articulate any consequential 12 fact or purpose to support further cross-examination regarding the prior altercation. 13 See Gallegos, 2007-NMSC-007, ¶ 25. Accordingly, because Defendant failed to 14 articulate any consequential fact other than propensity to which the testimony was 15 directed, we affirm the district court’s rulings regarding the exclusion of Munoz’s 16 testimony and its limits on the cross-examination of Arbizu. 17 Prosecutorial Misconduct 18 Defendant argues that the prosecution committed misconduct by obtaining 19 commitments from prospective jurors to misapply the law regarding self-defense and 20 defense of another, vouching for its charging decision, and introducing evidence of

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1 victim impact in a non-capital case. Defendant concedes that he failed to preserve this 2 issue, but asks this Court to review the issue for plain or fundamental error. 3 This Court sparingly applies the plain error rule and plain error “only applies 4 to errors in evidentiary matters.” State v. Torres, 2005-NMCA-070, ¶ 9, 137 N.M. 5 607, 113 P.3d 877. Therefore, plain error may be applied where an evidentiary ruling 6 affected the defendant’s substantial rights, and raised “grave doubts about the validity 7 of the verdict, due to an error that infects the fairness or integrity of the judicial 8 proceeding.” Id. (internal quotation marks and citation omitted). When reviewing 9 for fundamental error, “the jury verdict will not be reversed unless necessary to 10 prevent a miscarriage of justice.” Sandoval I, 2011-NMSC-022, ¶ 13 (internal 11 quotation marks and citation omitted). We will reverse a conviction under the 12 fundamental error doctrine only “if the defendant’s guilt is so questionable that 13 upholding a conviction would shock the conscience, or where, notwithstanding the 14 apparent culpability of the defendant, substantial justice has not been served.” State 15 v. Silva, 2008-NMSC-051, ¶ 13, 144 N.M. 815, 192 P.3d 1192 (internal quotation 16 marks and citation omitted). 17 Defendant first contends that the prosecutor impermissibly elicited a 18 commitment by jurors to misapply the law of self-defense involving multiple 19 assailants. Defendant asserts that this issue is interrelated with the issue of the error 20 in the jury instructions regarding the law of self-defense involving multiple assailants

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1 and requests that this Court review their impact together for cumulative error. Our 2 Supreme Court determined that the error in the jury “instructions did not preclude 3 Defendant from presenting his multiple assailant claim to the jury.” Sandoval I, 2011- 4 NMSC-022, ¶ 29. Sandoval I reasoned that Defendant and the State presented 5 different theories regarding self-defense, and “the jury chose to accept the State’s 6 theory of the case and reject Defendant’s theory.” Id. Sandoval I further held that no 7 fundamental error occurred, primarily because Defendant was not precluded from 8 presenting his multiple assailant theory to the jury. Id. Relying on Sandoval I, we 9 conclude that because the district court did not preclude Defendant from presenting 10 his theory regarding self-defense to the jury, any error in the State’s presentation of 11 the law regarding self-defense was not fundamental error. Similarly, we determine 12 that because the district court permitted Defendant to present his self-defense claim, 13 no plain error occurred that would raise grave doubts regarding the validity of the 14 verdict. See Torres, 2005-NMCA-070, ¶ 9. 15 Defendant further argues that the prosecutor improperly vouched for its 16 decision to try Defendant for the murders of Ramos and McCormick, but not for the 17 shooting of Arbizu. Defendant points to statements made during opening argument, 18 where the prosecutor informed the jury that the State was not prosecuting Defendant 19 for the shooting of Arbizu because Arbizu was holding a gun when Defendant shot 20 him. During closing argument, the prosecutor informed the jury that Defendant acted

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1 in self-defense against Arbizu, but that the jury would have to consider whether 2 Defendant had to defend himself against Ramos or McCormick. 3 We conclude that no plain or fundamental error occurred based upon the 4 prosecutor’s isolated remarks regarding its decision not to prosecute Defendant for the 5 shooting of Arbizu. The evidence that the prosecutor referred to regarding the 6 shooting of Arbizu was presented to the jury. See State v. Fry, 2006-NMSC-001, 7 ¶ 51, 138 N.M. 700, 126 P.3d 516 (reasoning that no prosecutorial misconduct 8 occurred where the prosecution did not present new information to the jury). 9 Furthermore, Defendant does not cite to any evidence in the record that the 10 prosecutor’s remarks deprived Defendant of a fair trial. In fact, the jury acquitted 11 Defendant for the murder of Ramos while convicting him for the second-degree 12 murder of McCormick, indicating that the prosecutor did not undermine the jury’s 13 ability to weigh the evidence fairly and carefully apply the facts to the law. Cf. State 14 v. Wildgrube, 2003-NMCA-108, ¶ 33, 134 N.M. 262, 75 P.3d 862 (determining that 15 the defendant was not prejudiced by the prosecutor’s isolated remarks because the jury 16 acquitted the defendant of one of the charges, indicating that the prosecutor did not 17 undermine the jury’s ability to weigh the evidence fairly and carefully apply the facts 18 to the law). As a result, we conclude that no plain or fundamental error occurred 19 regarding the prosecution’s isolated remarks about its decision not to prosecute 20 Defendant for the shooting of Arbizu.

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1 Finally, Defendant argues that prosecutorial misconduct occurred because the 2 prosecutor told the jury that Arbizu, Ramos, and McCormick all had minor children 3 during opening statement. Again, Defendant fails to cite to any evidence in the record 4 that the prosecutor’s remarks deprived Defendant of a fair trial. Furthermore, as 5 previously noted, the jury demonstrated its careful weighing of the evidence by 6 acquitting Defendant for the murder of Ramos, while convicting Defendant for the 7 second-degree murder of McCormick. See id. As a result, we conclude that the 8 prosecutor’s isolated reference to the alleged victims’ minor children did not 9 constitute plain or fundamental error. 10 Jury Tampering and Juror Bias 11 “The essence of cases involving juror tampering . . . or bias is whether the 12 circumstance[s] unfairly affected the jury’s deliberative process and resulted in an 13 unfair jury.” State v. Mann, 2002-NMSC-001, ¶ 20, 131 N.M. 459, 39 P.3d 124. This 14 Court will only overturn a district court’s denial of a motion for new trial based on 15 jury tampering or bias unless the district court abused its discretion. Id. ¶ 17. The 16 district court is in the best position to decide whether to grant a new trial, as such, we 17 will not disturb the court’s decision unless it is arbitrary, capricious, or beyond reason. 18 Id. 19 When a court learns of possible juror misconduct or tampering during trial, “it 20 should conduct an inquiry to determine whether the fairness of the trial has been

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1 threatened and then take appropriate measures.” Goodloe v. Bookout, 1999-NMCA- 2 061, ¶ 23, 127 N.M. 327, 980 P.2d 652. “But once the trial has concluded, 3 prophylactic measures are unavailable. The party complaining . . . must either 4 establish prejudice or at least request the court to conduct a further inquiry.” Id. 5 As a preliminary matter, we note that Defendant never requested that the district 6 court conduct an evidentiary hearing in this case. In Defendant’s post-trial motions 7 for a judgment notwithstanding the verdict and for new trial, Defendant alleged juror 8 misconduct but only requested a new trial based upon actual prejudice. Similarly, 9 during the August 22, 2007 hearing on Defendant’s motions, he again alleged jury 10 misconduct and again requested a new trial based on the evidence submitted. See 11 State v. Sena, 105 N.M. 686, 688, 736 P.2d 491, 493 (1987) (stating that to support 12 an evidentiary hearing based on jury tampering and bias, a defendant “must make a 13 preliminary showing [with] competent evidence” (internal quotation marks and 14 citation omitted)). At no point, did Defendant request an evidentiary hearing based 15 on a preliminary showing of prejudice. See Woolwine v. Furr’s, Inc., 106 N.M. 492, 16 496, 745 P.2d 717, 721 (Ct. App. 1987) (“To preserve an issue for review on appeal, 17 it must appear that appellant fairly invoked a ruling of the trial court on the same 18 grounds argued in the appellate court.”). A ruling to have a further evidentiary 19 hearing would have allowed the district court to call jurors in to answer questions or 20 otherwise develop any additional record regarding the factual circumstances needed

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1 to make an informed ruling as to whether actual prejudice existed. See Kilgore v. Fuji 2 Heavy Indus. Ltd., 2009-NMCA-078, ¶¶ 32-37, 146 N.M. 698, 213 P.3d 1127 3 (reasoning that when an evidentiary hearing is properly requested, a district court may 4 investigate, call jurors in for questioning, and hear testimony in support of a party’s 5 claim of misconduct). Defendant chose to proceed on the merits and establish actual 6 prejudice because he failed to pursue his opportunity to have an additional evidentiary 7 hearing. Based upon the record before us, we cannot say that the district court erred 8 in failing to hold an evidentiary hearing to further develop the record when no such 9 hearing was ever requested and a preliminary showing of prejudice was never argued 10 before the district court. See Sena, 105 N.M. at 688, 736 P.2d at 493 (reasoning that 11 the district court did not err in failing to hold an evidentiary hearing if competent 12 evidence to establish a preliminary showing of prejudice was not found to exist). 13 Next, we must look at whether Defendant made a showing of actual prejudice. 14 Jury tampering occurs when a person purposefully initiates contact with a juror in an 15 attempt to influence the juror. Kilgore, 2009-NMCA-078, ¶ 12; see also Mann, 2002- 16 NMSC-001, ¶ 21 (defining jury tampering as “private communications between third 17 persons and jurors,” and discussing due process violations that may result). Juror bias 18 occurs when a juror cannot act fairly and impartially in his or her role as a juror. 19 Mann, 2002-NMSC-001 ¶¶ 25-26 (emphasizing that the underlying issue is whether 20 a defendant’s right to a fair and impartial jury has been violated). “This burden is not

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1 discharged merely by allegation; rather, [a d]efendant must make an affirmative 2 showing that some extraneous influence came to bear on the jury’s deliberations.” Id. 3 ¶ 19 (internal quotation marks and citation omitted). We conclude that Defendant has 4 failed to meet his burden. 5 Defendant makes two claims regarding jury tampering or bias. First, he asserts 6 that the visible presence of Ramos family members at trial made some jurors feel 7 uncomfortable. Specifically, he claims that the family “loiter[ed] outside the jury 8 room” and attempted to intimidate jurors during their lunch break, in the parking lot 9 and at the grocery store. Defendant’s second assertion is that one juror, “the ‘juror in 10 black’ had arrived for the final day of trial already having decided [Defendant’s] 11 guilt.” 12 To support the jury tampering claim, Defendant produced three statements, only 13 one of which was from a juror who actually participated in deliberations. Two of the 14 statements were unsworn letters and both reference an incident at a grocery store. The 15 first letter stated that a fellow juror was very nervous because she did not realize that 16 “she would be seeing [women present in the courtroom at a grocery store] outside of 17 trial.” The second letter was written by a juror who was excused on the third day of 18 trial and said that “[s]ome of us felt threatened and intimidated by the people that 19 would hang around the brown van that had ‘In Memory of Chino’ written on the back 20 window.” Although this juror did not participate in jury deliberations, before she was

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1 excused, she “felt threatened” while walking to her car, and said that “[t]wo women 2 jurors mentioned that they were stared down by some people from that van while at 3 the grocery store.” Neither statement identifies the jurors who were allegedly stared 4 at in a grocery store, and neither indicated what affect the incident had on either of 5 these two jurors. Importantly, neither letter alleged that extraneous material reached 6 the jury or that an extrajudicial conversation or communication occurred. These two 7 letters do not indicate that the jury’s deliberative process was unfairly affected. See 8 Sena, 105 N.M at 688, 736 P.2d at 493 (stating that where “[a] party makes such a 9 showing [with competent evidence], and if there is a reasonable possibility the 10 material prejudiced the defendant, the trial court should grant a new trial” (internal 11 quotation marks and citation omitted)). 12 Defendant’s third jury tampering incident alleges that, in an attempt to 13 intimidate an alternate juror, the Ramos family honked at her. The alternate juror, 14 however, testified that she was not positive that the van was honking at her, and she 15 did not feel intimidated or threatened by the behavior. The alternate juror did not feel 16 it would affect her ability to fairly carry out her role as a juror. This evidence is also 17 insufficient to make a showing that the alleged conduct in any way affected the jury 18 verdict and prejudiced Defendant. See id. (recognizing that there must be a reasonable 19 possibility that the matter prejudiced the defendant). In addition, we are persuaded 20 by the State’s argument that the Ramos family did not improperly influence the jury

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1 because the jury acquitted Defendant of the murder charge involving Ramos. In light 2 of that outcome, it is difficult to imagine that the presence of the Ramos family at trial 3 intimidated the jurors in such a way that “unfairly affected the jury’s deliberative 4 process and resulted in an unfair jury.” Mann, 2002-NMSC-001, ¶ 20. As a result, 5 the district court did not abuse its discretion when it denied Defendant’s motions for 6 a judgement notwithstanding the verdict and for new trial based upon jury tampering. 7 Defendant also claims he did not have a fair and impartial jury because one 8 juror expressed a premature opinion of Defendant’s guilt. Defendant supports his 9 claim of bias with the affidavit of Ms. Sanchez, Defendant’s great aunt. In her 10 affidavit, Ms. Sanchez explained that on the final day of trial a “young juror dressed 11 in black” approached her and very rudely and sarcastically told her “[i]f you were 12 being tried today, I would find you guilty.” Ms. Sanchez believed that, because of this 13 statement, the juror could not be fair and impartial. She said, “[i]t was obvious . . . 14 that this juror had already made up his mind before even retiring to the jury room.” 15 Although this alleged incident is troubling, it is also vague, uncorroborated, and 16 the post-trial timing of the disclosure places the credibility of Defendant’s great aunt 17 at issue. Defendant failed to identify the “juror in black,” and the matter was not 18 brought to the district court’s immediate attention so that the matter could be 19 addressed prior to the completion of trial. See Sena, 105 N.M at 688, 736 P.2d at 493 20 (reasoning that the trial court did not err in refusing to inquire further into alleged

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1 juror misconduct where support for Defendant’s argument is “vague and 2 uncorroborated”). In addition, the Defendant’s failure to request an evidentiary 3 hearing prevented the district court from establishing who was being referenced as the 4 “juror in black” and prevented any further testimony on the record to develop 5 evidence of actual bias. Similarly, because the alleged comment was directed at 6 Defendant’s great aunt, and occurred after all the evidence in the case had been 7 presented, we cannot conclude that the district court abused its discretion when it 8 determined that this evidence was insufficient to establish that the “juror in black” was 9 biased toward Defendant and unfairly affected jury deliberations. 10 In State v. Price, a juror asked whether it was safe for the Defendant to be near 11 a loaded weapon. 104 N.M. 703, 707, 726 P.2d 857, 861 (Ct. App. 1986), modified 12 on other grounds by State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991). This 13 Court held that “although the juror’s conduct was improper, it did not sufficiently 14 demonstrate bias or prejudice so as to require a mistrial.” Id. at 708, 726 P.2d at 862. 15 In Price the juror’s comment came after most of the evidence in the case had been 16 presented, was equivocal, and was supported by the evidence that the juror had 17 already heard. Id.; cf. State v. Perea, 95 N.M. 777, 777-79, 626 P.2d 851, 851-853 18 (Ct. App. 1981) (reasoning that the defendant only made a preliminary showing of 19 prejudice where a juror expressed an improper opinion of guilt that was susceptible 20 to only one meaning when only the state’s case had been heard). In Sena, this Court

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1 concluded that the district court did not abuse its discretion in denying a motion for 2 an evidentiary hearing even where a fellow juror heard another juror state during the 3 deliberations that “he knew the defendant was guilty, but that he could not base his 4 conviction on anything he heard in the courtroom.” 105 N.M at 687, 736 P.2d at 492. 5 The district court did not abuse its discretion because “[the d]efendant failed to show 6 that he had competent evidence that extraneous material reached the jury.” Id. at 688, 7 736 P.2d at 493; see State v. Chamberlain, 112 N.M. 723, 733, 819 P.2d 673, 683 8 (1991) (holding that the district court did not abuse its discretion by denying a motion 9 for further inquiry because there was no evidence that new evidentiary facts reached 10 the jury during deliberations). 11 Although it was improper for the “juror in black” to express his opinion outside 12 the jury room after all the evidence had been submitted, the questionable comment is 13 not susceptible to only one meaning and should only be considered as a preliminary 14 showing of prejudice that might justify a further evidentiary hearing. See Price, 104 15 N.M. at 707-08, 726 P.2d at 861-62 (holding that a district court is in the best position 16 to determine whether an improper expression of opinion is on its face prejudicial or 17 too equivocal to require a new trial). Here, the alleged comment occurred after both 18 sides had presented all the evidence in their cases and this juror’s opinion could 19 reasonably have been based on the evidence heard at trial. See Goodloe, 1999- 20 NMCA-061, ¶ 22 (explaining that premature deliberations are prohibited because it

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1 is unfair for jurors to reach conclusions without having heard a defendant’s case). 2 Similarly, although the “juror in black” allegedly expressed an opinion of guilt prior 3 to conducting jury deliberations, Defendant has presented no evidence that the juror 4 failed to reach its verdict based solely on the evidence. See id. (“[T]he danger of 5 prejudice arising from premature deliberation is significantly less than the danger 6 arising from communication of information not in evidence at trial”.); see also Sena, 7 105 N.M. at 688, 736 P.2d at 493 (holding that the statement of one juror alone does 8 not indicate that extraneous material reached the jury and affected their verdict). 9 Under the circumstances, we cannot question the district court’s determination that the 10 “juror in black” could have simply expressed his opinion based upon all the evidence 11 that was presented at trial. See State v. Benally, 2001-NMSC-033, ¶ 21, 131 N.M. 12 258, 34 P.3d 1134 (presuming that the jury follows instructions given by the trial 13 court, not arguments presented by counsel). 14 The evidence in the present case falls short of the required showing of actual 15 bias. Because Defendant did not support his claim of bias with sufficient competent 16 evidence, we conclude that Defendant has failed to establish that the jury’s 17 deliberative process was unfairly affected. See Mann, 2002-NMSC-001, ¶ 20 18 (explaining that the court should focus on whether extraneous information “unfairly 19 affected the jury’s deliberative process and resulted in an unfair jury”). The district 20 court did not abuse its discretion in denying Defendant’s motions based upon juror

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1 bias. We affirm the district court’s denial of Defendant’s motions for a judgement 2 notwithstanding the verdict and for new trial. 3 Sanctions Based on Claim of Lost Evidence 4 We now look at whether the district court erred in denying sanctions based on 5 Defendant’s claim that the State lost evidence. Defendant moved in limine for 6 sanctions claiming the State failed to provide Defendant with a copy of a surveillance 7 video tape generated by a third party. Both Defendant and the State were aware of the 8 video’s existence within two days of the incident. It is unclear whether a copy of this 9 tape was ever made, and the original has since disappeared. Prosecutors assert that 10 they have exhausted all avenues of searching for the tape and that, to their knowledge, 11 a copy was never made. Noting that it appears as though “the state doesn’t have it, 12 and therefore couldn’t turn it over,” the district court denied Defendant’s motion. 13 Defendant incorrectly argues that we should review the district court’s denial de novo 14 because the district court failed to conduct an evidentiary hearing as to whether a copy 15 of the tape was ever made. We are not persuaded by this argument, and will review 16 the district court’s denial of a motion for sanctions based upon lost evidence for abuse 17 of discretion. State v. Duarte, 2007-NMCA-012, ¶ 3, 140 N.M. 930, 149 P.3d 1027. 18 The district court did not abuse its discretion in failing to conduct an evidentiary 19 hearing on whether a copy of the tape existed. Even if a copy of the tape was made, 20 Defendant presented no evidence that the State was aware of the copy or its location.

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1 To the contrary, Defendant admits that the State was “diligent in trying to pursue” 2 whether a copy of the tape existed and where it might be. Additionally, while 3 Defendant expressed his belief the state police might have a copy of the tape, he 4 explicitly stops short of alleging the state police intentionally deprived him of the tape. 5 Defendant argues that the state police had “purportedly” obtained a copy of the tape, 6 but points to no concrete evidence that a copy of the tape actually existed, or where 7 that copy might be. 8 After hearing Defendant’s argument, the district court inquired into the 9 prosecution’s efforts to obtain a copy of the tape, if it existed, and determined that “the 10 state is not responsible if there was never [a copy] in the state’s possession. The 11 record supports the district court’s finding. Without evidence that a copy of the tape 12 was intentionally hidden from Defendant, we cannot see how the district court abused 13 its discretion by ruling on Defendant’s motion without holding an evidentiary hearing. 14 Noting that it seemed “kind of odd” that no one could determine whether a copy 15 existed or was ever made, the district court denied Defendant’s motion, but also said 16 that Defendant can raise the motion again at a later time. Under those circumstances, 17 the district court did not abuse its discretion. 18 The district court also did not abuse its discretion in denying Defendant’s 19 motion for sanctions. It is generally understood that the State has a duty to preserve 20 evidence obtained during the investigation of a crime. State v. Sanchez, 1999-NMCA-

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1 004, ¶ 7, 126 N.M. 559, 972 P.2d 1150. We apply a three-part test to determine 2 whether deprivation of evidence by the State constitutes reversible error, evaluating 3 whether (1) “[t]he [s]tate either breached some duty or intentionally deprived the 4 defendant of evidence[,]” (2) “[t]he improperly ‘suppressed’ evidence [was] 5 material[,]” and (3) “[t]he suppression of this evidence prejudiced the defendant.” 6 State v. Chouinard, 96 N.M. 658, 661, 634 P.2d 680, 683 (1981). Because Defendant 7 has conceded that the evidence was not lost in bad faith, Defendant bears the burden 8 of showing materiality and prejudice before sanctions are appropriate. State v. 9 Pacheco, 2008-NMCA-131, ¶ 30, 145 N.M. 40, 193 P.3d 587. “Determination of 10 materiality and prejudice must be made on a case-by-case basis.” Id. (internal 11 quotation marks and citation omitted). The district court is in the best position to 12 evaluate the importance of lost evidence. Id. We are unconvinced that the evidence 13 is material or prejudicial. 14 Material evidence is evidence that is in some way “determinative of guilt” or 15 innocence. Duarte, 2007-NMCA-012, ¶ 11 (internal quotation marks and citation 16 omitted). Defendant argues the tape is exculpatory. Defendant claims the tape 17 undercuts Arbizu’s testimony and corroborates the defense account that Defendant 18 backed away with his hands in the air. Specifically, the defense argues that it 19 corroborates Defendant’s claim of self-defense. The State, however, conceded the 20 facts Defendant claims the tape corroborates: “that Jaime was an aggressor, that T.J.

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1 left the J&J Mart, and that Chino and Jamie pursued T.J.” The State also asserts that 2 the tape is not as exculpatory as Defendant claims and that it would “have 3 strengthened the prosecution’s case by tending to show that McCormick . . . was an 4 innocent third party caught in the wrong place at the wrong time.” 5 Under these circumstances, we fail to see how the videotape itself could have 6 contributed to the defense in a significant manner. The evidence was cumulative 7 considering the fact that the State conceded to Defendant’s accounting of what 8 occurred at JJ’s Country Mart. Similarly, even if the tape was material, Defendant 9 was also primarily responsible for any impairment to his defense. See State v. Laney, 10 2003-NMCA-144, ¶ 28, 134 N.M. 648, 81 P.3d 591 (“Defendants must make an effort 11 to discover or obtain evidence, which they are or should be aware of, in support of 12 their defense.”). Defendant was aware of the existence of a video tape within days of 13 the incident. We conclude the Defendant has failed to show that the loss of the 14 videotape has materially prejudiced his defense. As a result, the district court’s ruling 15 to deny a motion for sanctions was not an abuse of discretion. 16 Cumulative Error 17 Defendant argues that the cumulative effect of asserted errors made at trial 18 requires reversal of his conviction. “The doctrine of cumulative error applies when 19 multiple errors, which by themselves do not constitute reversible error, are so serious 20 in the aggregate that they cumulatively deprive the defendant of a fair trial.” State v.

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1 Salas, 2010-NMSC-028, ¶ 39, 148 N.M. 313, 236 P.3d 32 (internal quotation marks 2 and citation omitted). As previously discussed, our Supreme Court concluded that the 3 jury instructions regarding self-defense and defense of another “did not properly 4 reflect the law regarding multiple assailants.” Sandoval I, 2011-NMSC-022, ¶ 26. 5 However, Sandoval I determined no fundamental error occurred and Defendant’s 6 conviction was not a plain miscarriage of justice. Id. ¶ 30. Having identified no other 7 error, we conclude that no cumulative error deprived Defendant of a fair trial. See 8 State v. Trujillo, 2002-NMSC-005, ¶ 63, 131 N.M. 709, 42 P.3d 814 (reasoning that 9 the doctrine of cumulative error is strictly applied and inapplicable where the record 10 as a whole demonstrates the defendant received a fair trial). 11 CONCLUSION 12 For the foregoing reasons, we affirm Defendant’s conviction.

13 IT IS SO ORDERED.

14 __________________________________ 15 TIMOTHY L. GARCIA, Judge

16 WE CONCUR:

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1 _________________________________ 2 CELIA FOY CASTILLO, Chief Judge

3 _________________________________ 4 MICHAEL E. VIGIL, Judge