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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
KEN D. VARGAS,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY, Sarah C.
Backus, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, for Appellee
Jorge A. Alvarado, Chief Public Defender,
Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant
MICHAEL D. BUSTAMANTE, Judge. WE CONCUR:
RODERICK T. KENNEDY, Judge, LINDA M. VANZI, Judge
AUTHOR: MICHAEL D. BUSTAMANTE
{1} Ken D. Vargas
(Defendant) appeals from the district court’s judgment and sentence. This
Court’s calendar notice proposed to summarily affirm all of the issues raised.
Defendant filed a memorandum in opposition to the proposed disposition and a
motion to amend the docketing statement. Because we are not persuaded by
Defendant’s arguments, we deny the motion and affirm the district court.
{2} Defendant continues
to argue that the State’s failure to disclose a key witness violated his due
process rights. This Court’s calendar notice indicated that it was unclear
whether the witness’s statement remained undisclosed until trial and if it was
preserved, but proposed to conclude that Defendant failed to meet his burden of
showing how he was prejudiced by the asserted non-disclosure under the factors
in
State v. Ortega,
2014-NMSC-017, ¶ 43,
327 P.3d 1076 (enumerating
factors for determining whether the error is reversible when evidence is
disclosed for the first time during trial). [CN 7]
{3} Defendant has not
shown prejudice warranting reversal. Defendant indicates that the witness’s
statement was disclosed by the State two weeks prior to trial and the failure
to produce in a timely manner deprived Defendant of material evidence and
resulted in the preclusion of a potential avenue of defense. [MIO 4] Although
Defendant does not indicate how it was preserved, it appears from the
transcript log in the record that Defendant raised an objection to the State’s
witness during trial. [RP vol. 3, 559] It further appears that Defendant was
notified of the witness, her name appeared on the State’s witness list, the
State had indicated it was not going to call her as a witness, but decided at
trial to call her in its case in chief. [RP vol. 3, 560] Defendant asserts that
the witness’s testimony provided fundamental support for the defense theory
that Defendant was attacked and was defending himself. [MIO 3] Given the
witness’s favorable testimony, we cannot discern how Defendant was prejudiced.
Defendant contends he lost the opportunity to explore other avenues of defense,
such as whether being choked could have interacted with his psychological
issues. [MIO 3] However, “[a]n assertion of prejudice is not a showing of
prejudice.”
In re Ernesto M., Jr.,
1996-NMCA-039, ¶ 10,
121 N.M. 562,
915 P.2d 318. We therefore conclude that Defendant has not met his burden of
demonstrating reversible error.
See State v. Fernandez, 1994-NMCA- 056,
¶ 16,
117 N.M. 673,
875 P.2d 1104 (“In the absence of prejudice, there is no
reversible error.”).
{4} Next, Defendant
continues to argue that the State presented insufficient evidence of second
degree murder because he was not the aggressor and there was evidence he was
provoked. [MIO5-6] This Court’s calendar notice set out the relevant evidence
and proposed to conclude that insofar as there was any evidence Defendant was
provoked, “[t]his [C]ourt does not weigh the evidence and may not substitute
its judgment for that of the fact finder so long as there is sufficient
evidence to support the verdict.”
State v. Griffin,
1993-NMSC-071, ¶ 17,
116 N.M. 689,
866 P.2d 1156 (internal quotation marks and citation omitted).
Defendant does not point out any error in the fact or law relied upon for our
disposition, so we affirm.
See State v. Ibarra,
1993-NMCA-040, ¶ 11,
116
N.M. 486,
864 P.2d 302 (“A party opposing summary disposition is required to
come forward and specifically point out errors in fact and/or law.”).
{5} Defendant continues
to argue that the district court erred in admitting the testimony of the
State’s firearms expert pursuant to
State v. Franklin,
1967-NMSC-151, ¶¶
9-10,
78 N.M. 127,
428 P.2d 982, and
State v. Boyer,
1985-NMCA-029, ¶
24,
103 N.M. 655,
712 P.2d 1. This Court’s calendar notice proposed to affirm
on the bases that the testimony was relevant, the defense had an opportunity to
cross-examine the expert at trial, Defendant did not indicate whether a
continuance was sought to secure more time, and the probative value of the
evidence outweighed any prejudice resulting from the bifurcated opening
statements. [CN 2-3] We conclude that there was no abuse of discretion in
admitting the firearms expert’s testimony.
See State v. Alberico,
1993-NMSC-047, ¶ 58,
116 N.M. 156,
861 P.2d 192 (“[T]he admission of expert
testimony or other scientific evidence is peculiarly within the sound
discretion of the trial court and will not be reversed absent a showing of
abuse of that discretion.”).
{6} Insofar as
Defendant argues that counsel was ineffective for waiving a mistrial on issues
relating to the firearms expert, we disagree. As discussed above, Defendant
failed to demonstrate prejudice.
See State v. Dylan J.,
2009-NMCA-027, ¶
37, 145 N.M.719,
204 P.3d 44 (holding that a defense is prejudiced as a result
of deficient performance if “there was a reasonable probability that . . . the
result of the trial would have been different” and that “mere evidentiary
prejudice is not enough”) (internal quotation marks and citation omitted). Nor
do we agree with Defendant’s assertion that remand to perfect the record
comports with judicial economy. [MIO 11]
“A record on appeal that
provides a basis for remanding to the trial court for an evidentiary hearing on
ineffective assistance of counsel is rare. Ordinarily, such claims are heard on
petition for writ of habeas corpus.”
State v. Baca,
1997-NMSC-059, ¶ 25,
124 N.M. 333,
950 P.2d 776. The calendar notice proposed to conclude that
Defendant failed to establish a prima facie case of ineffective assistance of
counsel because it did not appear there was a factual record of how obtaining
an expert to controvert the firearm’s expert’s testimony would have changed the
outcome of the trial. [CN 4] Absent a prima facie case of ineffective
assistance of counsel, Defendant’s remedy is through habeas proceedings.
State
v. Martinez,
1996-NMCA-109, ¶ 25,
122 N.M. 476,
927 P.2d 31 (stating that
“[t]his Court has expressed its preference for habeas corpus proceedings over
remand when the record on appeal does not establish a prima facie case of
ineffective assistance of counsel”).
{7} Defendant argues
that the district court erred in admitting the black and white photos, which
failed to show the key results of the test demonstrating the possible distance
between the victim and the gun when it was fired because the color photographs
were the best evidence. [MIO 12] The best evidence rule, Rule 11–1002 NMRA,
states: “[a]n original writing, recording, or photograph is required in order
to prove its content unless these rules or a statute provides otherwise.”
Assuming the photographs come within the best evidence rule, Defendant does not
claim that the photographs admitted were not the originals.
State v. Baca,
1974-NMCA-022, ¶ 5,
86 N.M. 144,
520 P.2d 872. Nevertheless, defense counsel
had an opportunity to cross-examine the expert to challenge the reliability of
the photographs. Therefore, Defendant’s challenge goes to the weight of the
evidence, not its admissibility, and we find no abuse of discretion by the
district court.
See State v. Copeland, 1986-NMCA-083, ¶ 26,
105 N.M. 27,
727 P.2d 1342 (recognizing that any doubts concerning the connection of
the evidence to issues in the case goes to weight of the evidence, and not to
its admissibility),
superseded by constitutional amendment as stated in
State v. Wagoner,
2001-NMCA-014,
130 N.M. 274,
24 P.3d 306;
see also
State v. Trujillo,
1973-NMCA-012, ¶ 5,
84 N.M. 593,
506 P.2d 337 “(The
question of admissibility of photographs into evidence rests largely within the
discretion of the trial court.”).
{8} Further, even if
the admission of the photographs was an abuse of discretion, we conclude that
the error was harmless.
See State v. Roybal,
1988-NMCA-040, ¶ 18,
107
N.M. 309, 312,
756 P.2d 1204 (holding admission of challenged evidence is
harmless error where the record contains other properly admitted evidence that
independently establishes guilt). There was other evidence supporting
Defendant’s conviction, including the testimony of eyewitnesses that Defendant
fired a gun at the victim. Therefore, we conclude that there was no reversible
error.
See State v. Baros, 1974-NMCA-127, ¶ 6,
87 N.M. 49,
529 P.2d 275
(holding that the admission of a family photo was harmless error in light
of the overwhelming evidence in support of the conviction).
{9} Defendant moves to
amend the docketing statement to add the issue of whether the State’s failure
to disclose eighty-eight (88) photographs and a witness interview until during
trial violated Defendant’s right to due process. [MIO 14] A showing of good
cause is required to allow a docketing statement amendment: “(1) the motion to
amend must be timely, and (2) the motion must show the new issue sought to be
raised was either (a) properly preserved below or (b) allowed to be raised for
the first time on appeal.”
See State v. Moore,
1989-NMCA-073, ¶
42,
109 N.M. 119,
782 P.2d 91,
overruled on other grounds State v. Salgado,
1991-NMCA-044,
112 N.M. 537,
817 P.2d 730. The issues sought to be amended must
also be viable.
Id. (defining viable as an “argument that was colorable,
or arguable, and to distinguish arguments that are devoid of any merit”);
see
also State v. Sommer,
1994-NMCA-070, ¶ 11,
118 N.M. 58,
878 P.2d 1007
(denying the defendant’s motion to amend the docketing statement when the
argument offered in support thereof is not viable).
{10} Defendant asserts
that the photographs were of the cars in the parking lot and were relevant to
bullet trajectory issues. The State argued that the best evidence had already
been disclosed to the defense and the district court judge apparently ruled
that the newly disclosed photographs did not change the facts of the case that
had been presented. [MIO 15] Defendant’s motion refers to a witness interview,
but does not specify which witness or the substance of the testimony. [MIO1
14-15] Nevertheless, Defendant only argues that the State’s failure to produce
this evidence in a timely manner deprived the defense of material evidence and
resulted in the preclusion of possible avenues of defense. [MIO 15] Defendant
asserts that the facts of the case render it appropriate for disposition on the
general calendar to determine whether the facts support reversal with remand
for a new trial under
Ortega. Because we conclude that Defendant has not
demonstrated good cause under
Moore, we deny the motion to amend the
docketing statement.
{11} Last, Defendant
argues there was cumulative error that deprived him of his right to a fair
trial. [MIO 13] “The doctrine of cumulative error requires reversal when a
series of lesser improprieties throughout a trial are found, in aggregate, to
be so prejudicial that the Defendant was deprived of the constitutional right
to a fair trial.”
State v. Duffy,
1998-NMSC-014, ¶ 29,
126 N.M. 132,
967
P.2d 807,
modified on other grounds by State v. Gallegos,
2007-NMSC-007,
¶ 17,
141 N.M. 185,
152 P.3d 828. The cumulative error doctrine is strictly
applied, and may not be successfully invoked if the record as a whole
demonstrates that Defendant received a fair trial.
State v. Trujillo,
2002-NMSC-005, ¶ 63,
131 N.M. 709,
42 P.3d 814. Having concluded that Defendant
did not demonstrate error for any of the asserted issues, cumulative error is
not applicable in this case.
See State v. Aragon,
1999-NMCA-060, ¶ 19,
127 N.M. 393,
981 P.2d 1211 (stating that when there is no error, “there is no
cumulative error”).
{12} For all of
these reasons, and those stated in this Court’s calendar notice, we affirm.
MICHAEL D. BUSTAMANTE, Judge
RODERICK T. KENNEDY, Judge