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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
TRINIDAD GALLEGOS,
Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY,
Alisa Hadfield, District Judge
Bennett J. Baur, Chief Public Defender,
B. Douglas Wood, III, Assistant Appellate Defender, Santa Fe, NM, for Appellant
Hector H. Balderas, Attorney General,
Eran Shemuel Sharon, Assistant Attorney General, Santa Fe, NM, for Appellee
BARBARA J. VIGIL, Justice. WE CONCUR:
JUDITH K. NAKAMURA, Chief Justice, MICHAEL E. VIGIL, Justice, PETRA JIMENEZ
MAES, Justice, Retired, Sitting by designation, CHARLES W. DANIELS, Justice,
Retired, Sitting by designation
{1} In this direct
appeal, Defendant Trinidad Gallegos appeals his convictions of first-degree
murder and other crimes on the basis of independent and cumulative error at
trial. In addition, Defendant asks us to conclude that he has made a
prima
facie showing he received ineffective assistance of counsel and to remand
the matter for an evidentiary hearing. For the following reasons, we reject
Defendant’s claims of prejudicial error and conclude that he has not made a
prima
facie case of ineffective assistance of counsel. Accordingly, we affirm
Defendant’s convictions.
{2} Defendant
was sentenced for his convictions of first-degree murder, kidnapping, armed
robbery, tampering with evidence, and conspiracy to commit kidnapping in the
2014 death of Sergio Bickham (Victim). The evidence presented at trial was that
Defendant kidnapped Victim at a gas station in Albuquerque, and then drove
Victim west of the city to a tunnel that runs under Interstate 40. There,
Defendant shot Victim four times in the head, killing him.
{3} Charles Cordova
testified against Defendant at trial. Before testifying, Cordova entered into
an immunity use agreement with the State specifying that Cordova’s testimony
could not be used against him at his own trial. Cordova testified that on the
day of the killing, he helped Defendant tow Victim’s vehicle, a black Mustang,
in exchange for the forgiveness of a debt Cordova owed Defendant. He stated
that Warren Esquirrel, an acquaintance of Defendant, followed Cordova and
Defendant to the gas station. Cordova and Defendant then towed Victim’s vehicle
to a location where Esquirrel was supposed to pick it up.
{4} Cordova continued
that after they towed the vehicle, he drove Defendant and Victim towards Route
66 Casino via Interstate 40. He testified that they did not make it to the
casino. Instead, they exited the interstate at Atrisco Vista Boulevard and stopped
at the underpass there. Defendant and Victim got out and walked through the
underpass tunnel to the other side while Cordova stayed in his vehicle. Cordova
stated that he heard at least one gunshot, and then Defendant returned with a
gun in hand. When Cordova asked where Victim had gone, Defendant responded that
“[h]e had some business to take care of.” The pair then returned to Albuquerque
without Victim.
{5} Though Cordova’s
testimony formed the backbone of the State’s case against Defendant, additional
evidence supported Cordova’s retelling of the day in question. First, the State
introduced expert testimony regarding cell phone location analysis from Agent
Russell Romero. That testimony placed Defendant and Cordova in the general
locations of the kidnapping and murder.
{6} Next, Esquirrel
testified that when he met Defendant and Cordova at the gas station that
afternoon, Defendant handed him a bag full of guns and ammunition, pointed a
gun at him, and told him to leave “before the cops got there.” Esquirrel
further testified that Defendant asked Esquirrel if he knew someone who could
remotely erase surveillance video. When Esquirrel replied that he was not sure
if that was possible, Defendant told him he would “blow up the whole gas
station.”
{7} In addition,
Victim’s half-brother, Joseph Michael Gomez, testified that two guys—one with a
semiautomatic weapon—approached him and Victim as they were fixing Victim’s
Mustang at the gas station. Gomez stated that Defendant told him to put his
hands on the trunk of the Mustang and then threatened to shoot him if he did
not walk away. Gomez said he watched Cordova and Defendant push his brother to
the passenger side of the car and then heard an electrical noise that he
thought was a taser being used on Victim. After walking away from the car,
Gomez saw Cordova and Defendant hook up the tow and leave with Victim still in
the Mustang. Gomez described the scene as the State played corresponding
surveillance camera footage from the gas station.
{8} The video footage
shows Defendant and Cordova meeting Victim where he is parked at the gas pump.
Once Defendant and Cordova arrive at the gas station, Victim remains inside the
vehicle. Gomez is pushed towards the trunk of the car where he stays with his
hands on the car until he walks away. Meanwhile, Defendant and Cordova
continually enter and exit the driver’s side of Victim’s Mustang. Within
minutes, the pair attach a tow rope from the Mustang to Cordova’s SUV.
{9} In the
video, Esquirrel arrives to the gas station roughly two minutes after Defendant
and Cordova. While Cordova is preparing the tow, Defendant walks back and forth
between Esquirrel’s truck and Victim’s vehicle. Two minutes after he arrives,
Esquirrel pulls out of the gas station and Defendant returns to Victim’s
vehicle. Cordova then gets into the passenger seat of the Mustang with Victim
behind the wheel. Defendant climbs into the driver’s seat of Cordova’s SUV and
drives away with Victim’s Mustang in tow.
{10} The jury
convicted Defendant of first-degree, willful and deliberate murder, contrary to
NMSA 1978, Section
30-2-1(A)(1) (1994); kidnapping, contrary to NMSA 1978,
Section
30-4-1(A)(4) (2003); felony murder based on the predicate felony of
kidnapping, contrary to NMSA 1978, Section
30-2-1(A)(2) (1994); armed robbery,
contrary to NMSA 1978, Section
30-16-2 (1973); unlawful taking of a motor
vehicle, contrary to NMSA 1978, Section
30-16D-1(A) (2009); tampering with
evidence, contrary to NMSA 1978, Section
30-22-5 (2003); and conspiracy to commit
kidnapping, contrary to NMSA 1978, Section
30-28-2(A) (1979). The trial court
properly vacated the convictions for felony murder and unlawful taking of a
motor vehicle,
see State v. Garcia,
2011-NMSC-003, ¶ 39,
149 N.M. 185,
246 P.3d 1057, and ultimately sentenced Defendant to life imprisonment plus
nineteen years with a credit for pre- and post-sentence confinement. Defendant
appeals his convictions pursuant to this Court’s jurisdiction under
Article VI,
Section 2 of the New Mexico Constitution and Rule
12-102(A)(1) NMRA.
{11} Defendant’s claims
on appeal can be separated into three broad arguments. First, Defendant asserts
he should be retried on the basis of several independent errors at his trial.
Specifically, Defendant claims the trial court erred when it (1) failed to
exclude certain evidence as hearsay, (2) erroneously excluded other evidence as
hearsay, (3) failed to excuse three jurors for cause, (4) failed to exclude
witness testimony despite the State’s untimely disclosure of an immunity use
agreement for that witness, and (5) erroneously denied two motions for mistrial
based on admitted evidence of Defendant’s prior bad acts. Second, Defendant
asserts that his counsel was ineffective in (1) failing to object to testimony
that violated his right of confrontation and (2) failing to subpoena an expert
in cellular location analysis. Finally, Defendant contends that cumulative
error deprived him of a fair trial. Upon examination of the evidence presented
and the applicable legal standards of review, we reject Defendant’s arguments
and affirm his convictions.
{12} We review the
trial court’s decisions relating to Defendant’s claims of independent error for
abuse of discretion. “An abuse of discretion occurs when the ruling is clearly
against the logic and effect of the facts and circumstances of the case. We
cannot say the trial court abused its discretion by its ruling unless we can
characterize it as clearly untenable or not justified by reason.”
State v.
Otto,
2007-NMSC-012, ¶ 9,
141 N.M. 443,
157 P.3d 8 (internal quotation
marks and citation omitted). Ineffective assistance of counsel claims are
reviewed de novo.
State v. Tafoya,
2012-NMSC-030, ¶ 59,
285 P.3d 604.
A. Anonymous Tip Evidence
{13} One missing piece of
evidence in the State’s case was the murder weapon. At trial, Detective Mark
Craver testified that another detective had received an anonymous tip that
Defendant had placed the gun used in the killing in the air bag compartment of
a black Chevy pickup truck at his residence. The tip alleged that Defendant was
bragging after detectives failed to find the gun during their first search of
his residence. As we explain, the admission of this tip violated both the rule
against hearsay and Defendant’s rights under the Confrontation Clause. However,
this error does not support Defendant’s request for a new trial on appeal.
{14} As soon as Detective
Craver mentioned the anonymous tip at trial, but before he explained what
exactly the tipster told law enforcement, defense counsel objected on hearsay
and relevance grounds. Importantly, defense counsel did not raise the
Confrontation Clause in her objection. During the ensuing bench conference, the
State responded that the tip was not being offered for the truth of the matter
asserted but instead to show why the detective sought a warrant for the Chevy
pickup. The State continued that another witness, Ernie Ortiz, would confirm
that Defendant told him the gun was hidden in the air bag of the Chevy.
However, later in the trial, Ortiz denied that Defendant had talked to him
about the murder or the gun. Ultimately, the trial court permitted Detective
Craver to testify to the content of the anonymous tip.
{15} Defendant argues on
appeal that the State’s only objective in eliciting the evidence of the
anonymous tip was to offer the statement for its truth,
i.e., to show
that Defendant hid the murder weapon. Essentially, Defendant claims that the
State’s stated purpose served merely as an end-run around the rule against
hearsay. He argues he was prejudiced by the admission of the anonymous tip
because it gave the appearance to the jury that he craftily hid the murder
weapon yet retrieved it before law enforcement could find it.
{16} In response, the
State maintains that the tip was not hearsay because it was not offered for its
truth but rather to explain why detectives sought a warrant to search the
Chevy. Furthermore, the State contends that if the evidence was admitted in
error, that error was harmless.
1. The anonymous tip was hearsay, but its
admission was harmless
{17} Hearsay is an
out-of-court statement that “a party offers in evidence to prove the truth of
the matter asserted in the statement.” Rule
11-801(C) NMRA. Hearsay evidence is
inadmissible absent an exception. Rule
11-802 NMRA. “Statements offered for a
purpose other than their truth are not hearsay.”
Otto,
2007-NMSC-012, ¶
18. Crucially, that separate purpose must be “legitimate.”
See id. (listing
such legitimate purposes as “establishing knowledge, belief, good faith,
reasonableness, motive, [and] effect on the hearer or reader, [among] many others.”
(emphasis omitted) (quoting
State v. Rosales,
2004-NMSC-022, ¶ 16,
136
N.M. 25,
94 P.3d 768). In the context of police investigations in particular, a
statement “supporting the reasonableness of a detective’s conduct may be
admissible if relevant to a fact of consequence and not offered to prove the
truth of the matter asserted.”
State v. Stampley,
1999-NMSC-027, ¶ 39,
127 N.M. 426,
982 P.2d 477.
{18} Statements that
would otherwise be considered hearsay may be admitted not for their truth, but
to rebut suggestions that law enforcement acted unreasonably during the course
of an investigation.
Id. In
Stampley, the defendant suggested
that the investigating detective was biased and questioned the detective’s
motive for targeting him as a suspect.
Id. On re-direct examination of
the detective, the State adduced testimony that several out-of-court declarants
had identified the defendant as the shooter.
Id. ¶ 36. The Court held
that the trial court did not err in admitting this testimony because it “explained
[the detective’s] state of mind at the time of the investigation and refuted
[the defendant’s] claim that she was biased against him.”
Id. ¶ 39.
{19} Unlike the defendant
in
Stampley, Defendant had not questioned any of the detectives’ motives
during the investigation. The State asked Detective Craver about the anonymous
tip during direct examination, before defense counsel had any opportunity to
cast doubt on his investigation. In particular, the defense never attacked the
validity of the search warrant for the Chevy. Because the reasonableness of the
detective’s conduct in obtaining the additional search warrant had not been
questioned, there does not appear to be a legitimate purpose for the admission
of the anonymous tip. Accordingly, the trial court’s decision to allow
Detective Craver to testify to the content of the anonymous tip violated the
rule against hearsay, was “not justified by reason,” and therefore constituted
an abuse of discretion.
See Otto,
2007-NMSC-012, ¶ 9.
{20} We pause here to emphasize
that trial attorneys must articulate a
legitimate purpose for offering
evidence that would otherwise constitute inadmissible hearsay.
See id. ¶
18. Trial judges should be exceedingly cautious in permitting evidence of an
out-of-court declarant’s statements on the grounds that it is not being offered
for the truth of the matter, as this response is often used to sidestep the
hearsay exclusion rules.
{21} If evidence was
improperly admitted over objection, we may grant a new trial only if “the error
is determined to be harmful.”
State v. Tollardo,
2012-NMSC-008, ¶ 25,
275 P.3d 110. “[A] non-constitutional error is harmless when there is no
reasonable probability the error affected the verdict.”
Id. ¶ 36
(emphasis, internal quotation marks, and citation omitted). As opposed to the
“reasonable
possibility” standard used for constitutional errors, a
“reasonable
probability standard requires a greater degree of likelihood
that a particular error affected a verdict.”
Id. (emphasis added)
(internal quotation marks and citation omitted). To assess whether the error
affected the verdict, we evaluate the circumstances surrounding the error
including: “the source of the error,” the emphasis placed on the error, the
importance of the erroneously admitted evidence to the case against the
defendant, and whether the error was merely cumulative of properly admitted
evidence or introduced new facts.
Id. ¶ 43. We also consider the other
evidence of defendant’s guilt to “provide context for understanding how the
error arose and what role it may have played in the trial,” but overwhelming
evidence of guilt cannot be the sole basis for a determination of harmless
error.
Id.
{22} The admission of the
anonymous tip was harmless error. Evaluating the circumstances surrounding the
error, there was not a “reasonable probability” that the tip affected the
verdict. First, the content of the anonymous tip was not highly emphasized at
trial. Following Detective Craver’s testimony, the State briefly discussed the
Chevy with lead detective Russell Broyles. Detective Broyles testified that he
searched the Chevy but was unable to find a firearm. A similar exchange was
conducted with Detective Nicholas Marrujo. Detective Marrujo also testified
that no gun was found in the vehicle. None of the detectives stated that they
searched the vehicle based on the information provided by the tipster.
Detective Broyles attempted to testify that Ernie Ortiz had alerted them that
the gun was in the Chevy, but the trial court properly sustained defense counsel’s
objection. Significantly, the State did not mention the anonymous tip, the
black Chevy, or a gun hidden in the air bag in its closing argument to the
jury.
{23} In addition, it is
more likely that the jury credited Cordova’s testimony in reaching its guilty
verdict on the murder charge. Cordova testified that moments after he heard at
least one gunshot, Defendant returned from the underpass with a gun in hand and
instructions for Cordova to return to Albuquerque without Victim. Based on the
more complete picture painted by Cordova, it is not probable that the jury’s
decision was tainted by the assertion that Defendant apparently hid the gun and
was pleased when law enforcement was unable to find it.
{24} Arguably, the State
benefitted from the jury’s perception that the anonymous tip was credible
enough for the detectives to obtain yet another warrant and expend resources
based on its content. However, because the State did not heavily rely on the
assertion within the anonymous tip and other evidence was likely more
influential on the jury’s verdict, the erroneous admission of the anonymous tip
as nonhearsay was harmless error.
2. The violation of Defendant’s confrontation
rights was not fundamental error
{25} Defense
counsel did not raise the Confrontation Clause in her objection to Detective
Craver’s testimony regarding the anonymous tip. For this reason, the
confrontation issue was not preserved for review.
See Rule
12-321(A)
NMRA (“To preserve an issue for review, it must appear that a ruling or
decision by the trial court was fairly invoked.”). Defendant did not explicitly
ask us to review whether the admission of the anonymous tip violated
Defendant’s confrontation rights, though he does argue that his counsel’s
failure to object on confrontation grounds constituted ineffective assistance
of counsel.
{26} Before
addressing this matter under the framework of ineffective assistance of
counsel, we first address whether Defendant’s confrontation rights were
violated and whether that violation was fundamental error.
See State v. Jade
G.,
2007-NMSC-010, ¶ 24,
141 N.M. 284,
154 P.3d 659 (explaining that we may
review issues that were not preserved at trial when necessary “to protect the
fundamental rights of the party”);
see also State v. Cabezuela,
2011-NMSC-041,
¶ 49,
150 N.M. 654,
265 P.3d 705 (stating that when a Confrontation Clause
issue is not preserved, we review for fundamental error). Under fundamental
error review, we first determine whether an error occurred and then whether
that error was fundamental.
Id.
{27} The Confrontation
Clause of the Sixth Amendment of the United States Constitution bars the
admission of statements by declarants who are not subject to cross-examination
by the defendant.
Crawford v. Washington, 541 U.S. 36, 53-54 (2004). To
implicate the Confrontation Clause, the out-of-court statement must be “both
testimonial and offered to prove the truth of the matter asserted.”
State v.
Navarette,
2013-NMSC-003, ¶ 7,
294 P.3d 435. A statement is testimonial
“when the circumstances objectively indicate that there is no . . .
ongoing emergency, and that the primary purpose of the [police] interrogation
is to establish or prove past events potentially relevant to later criminal
prosecution.”
Davis v. Washington, 547 U.S. 813, 822 (2006);
see also
Navarette,
2013-NMSC-003, ¶ 8 (explaining that a statement is testimonial
if it is “primarily intending to establish some fact with the understanding
that the statement may be used in a criminal prosecution”).
{28} The anonymous tip
was testimonial hearsay. First, as we conclude above, the tip was offered to
prove the truth of the matter asserted in violation of the rule against
hearsay. Second, the tip was testimonial in nature. There is no evidence in the
record that the statements were given during the course of an ongoing
emergency. Defendant correctly states that the tipster “undoubtedly imparted
information for the primary purpose of assisting law enforcement in the
prosecution of [Defendant].” Because the anonymous tip was testimonial hearsay
of a declarant who did not testify, its admission at trial violated Defendant’s
right to confront the witnesses against him. Despite this violation, the
admission of the anonymous tip did not constitute fundamental error.
{29} “A fundamental error
occurs where there has been a miscarriage of justice, the conviction shocks the
conscience, or substantial justice has been denied.”
Cabezuela,
2011-NMSC-041, ¶ 49 (internal quotation marks and citation omitted). “[A]
defendant’s conviction shocks the conscience [when] (1) the defendant is
indisputably innocent, or (2) a mistake in the process makes a conviction
fundamentally unfair notwithstanding the apparent guilt of the accused.”
State
v. Astorga,
2015-NMSC-007, ¶ 14,
343 P.3d 1245 (alteration, internal
quotation marks, and citations omitted).
{30} Defendant’s
conviction does not shock the conscience because he is not indisputably
innocent, nor does the admission of the anonymous tip constitute a mistake that
would “undermine judicial integrity if left unchecked,”
State v. Barber,
2004-NMSC-019, ¶ 18,
135 N.M. 621,
92 P.3d 633.
On the charge of first-degree
murder, the jury was instructed as follows:
For you to find the
defendant guilty of first-degree murder by deliberate killing as charged in
Count 1, the State must prove to your satisfaction beyond a reasonable doubt
each of the following elements of the crime: One, the defendant killed Sergio
Bickham; two, the killing was with the deliberate intention to take away the
life of Sergio Bickham; three, this happened in New Mexico on or about the 10th
day of May, 2014.
{31} There was
substantial evidence independent of the anonymous tip upon which the jury
likely relied in coming to its guilty verdict on this count. The most
incriminating evidence against Defendant was Cordova’s eyewitness testimony of
the events immediately before and after the killing. That testimony
demonstrated that Defendant shot Victim with deliberate intention to kill him
in New Mexico on May 10, 2014 and was wholly independent of the anonymous tip
regarding the hidden gun. Furthermore, Cordova’s testimony was corroborated by
Agent Romero’s cell location testimony, which placed Defendant near the scene
of the killing, and Esquirrel’s testimony that Defendant wanted to get rid of
the gas station’s surveillance video even if it meant blowing up the building.
The weight of this evidence leads us to conclude that Defendant was not indisputably
innocent.
{32} Additionally, though
the anonymous tip’s admission was a mistake in the process, it does not rise to
a level that shocks the conscience or demonstrates a miscarriage of justice. As
the State did not rely on the anonymous tip when arguing Defendant’s guilt to
the jury, its erroneous admission does not undermine judicial integrity. In
all, the admission of the anonymous tip violated Defendant’s confrontation
rights but was not fundamental error.
B. Ineffective Assistance of Counsel
{33} Defendant
contends that counsel’s failure (1) to object to the anonymous tip on
Confrontation Clause grounds and (2) to subpoena an expert witness to rebut
Agent Romero’s cellular location testimony amounted to ineffective assistance
of counsel. “To establish [a
prima facie case of] ineffective assistance
of counsel, a defendant must show: (1) ‘counsel’s performance was deficient,’
and (2) ‘the deficient performance prejudiced the defense.’ ”
State v.
Paredez,
2004-NMSC-036, ¶ 13,
136 N.M. 533,
101 P.3d 799 (quoting
Strickland
v. Washington, 466 U.S. 668, 687 (1984)). We have consistently stated that
“we prefer . . . ineffective assistance of counsel claim[s] to be
brought in a habeas corpus proceeding, ‘so that the defendant may actually develop
the record with respect to defense counsel’s actions.’ ”
Astorga,
2015-NMSC-007, ¶ 17 (quoting
State v. Arrendondo,
2012-NMSC-013, ¶ 38,
278 P.3d 517). On direct appeal, if the defendant is able to present a
prima
facie case of ineffective assistance of counsel based on the facts in the
record, we will remand the defendant’s claims to the trial court for an
evidentiary hearing.
See Astorga,
2015-NMSC-007, ¶ 17
; see also State
v. Roybal,
2002-NMSC-027, ¶ 19,
132 N.M. 657,
54 P.3d 61 (explaining that
appellate courts evaluate the facts in the record to determine if defendants
have met their burden). If the defendant cannot make a
prima facie case
based on the direct appeal record, we will presume counsel’s performance was
reasonable.
Astorga,
2015-NMSC-007, ¶ 17.
{34} Under the deficient
performance prong of our ineffective assistance of counsel analysis, a
“defendant must point to specific lapses . . . by trial counsel.”
State
v. Trujillo,
2002-NMSC-005, ¶ 38,
131 N.M. 709,
42 P.3d 814 (omission in
original) (internal quotation marks and citation omitted). Then, we determine
whether counsel’s conduct “fell below an objective standard of reasonableness.”
State v. Hunter,
2006-NMSC-043, ¶ 13,
140 N.M. 406,
143 P.3d 168
(quoting
Strickland, 466 U.S. at 688).
In doing so, we “indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance[.]”
Hunter,
2006-NMSC-043, ¶ 13
(quoting
Strickland, 466 U.S. at 689).
{35} Under the prejudice
prong, “a defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.”
State v. Trammell,
2016-NMSC-030, ¶ 23, 387 P.3d 220
(alteration omitted) (quoting
Strickland, 466 U.S. at 694). This is a
high bar. The defendant must show that “counsel’s errors were so serious, such
a failure of the adversarial process, that such errors undermine judicial
confidence in the accuracy and reliability of the outcome.”
Astorga,
2015-NMSC-007, ¶ 21 (alteration omitted) (quoting
State v. Bernal,
2006-NMSC-050, ¶ 32,
140 N.M. 644,
146 P.3d 289).
{36} We need not analyze
the first prong before considering the second. “If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.”
State v. Hernandez,
1993-NMSC-007, ¶ 27,
115 N.M. 6,
846 P.2d 312 (internal quotation marks and
citation omitted) (quoting
Strickland, 466 U.S. at 697).
1. Defendant was not prejudiced by defense
counsel’s failure to object to the admission of the anonymous tip on
Confrontation Clause grounds
{37} As previously
discussed, Detective Craver testified that detectives received an anonymous tip
that Defendant was bragging when police had failed to find the murder weapon he
hid in the steering wheel of a Chevy pickup. Defense counsel objected to this
testimony on hearsay and relevance grounds but did not also raise the
Confrontation Clause. Defendant argues he received ineffective assistance of
counsel based on defense counsel’s failure to include the Confrontation Clause
in her objection, as well as her failure to seek a curative instruction to the
jury not to consider the evidence of a hidden weapon. He states that a
“reasonably competent lawyer would have objected on Confrontation Clause
grounds, not just hearsay.” The State responds that Defendant did not prove
that the failure to object was incompetent and did not show how that
incompetence led to prejudice.
{38} Looking to
the second prong, Defendant was not prejudiced by defense counsel’s failure to
object on confrontation grounds to the admission of the anonymous tip. As we
have already concluded, there was not a “reasonable probability” that Defendant
would not have been convicted, but for defense counsel’s failure to raise the
Confrontation Clause to bar evidence of the anonymous tip. Defendant failed to
prove a
prima facie case of ineffective assistance of counsel on this
issue.
2. Defendant has not made a prima facie
showing that failure to call an expert in cell location analysis was
ineffective assistance of counsel
{39} The trial
court qualified Agent Romero as an expert “Historic Cell Site Analyst” over
Defendant’s objection. Having reviewed the cell phone records of Defendant and
Cordova, Agent Romero testified to each man’s general location on the day in
question. Agent Romero’s testimony placed Defendant and Cordova near the
locations of the kidnapping and murder at the time they were alleged to have
occurred. Defense counsel cross-examined Agent Romero about his methods and
analysis at trial. Defendant’s own expert in historic cell site analysis, John
Minor, did not appear for trial though it appears he had consulted with the
defense. Defense counsel did not subpoena his presence, nor did she proffer to
the trial court what Minor’s testimony would be.
{40} Defendant
argues he was prejudiced when defense counsel failed to rebut Agent Romero’s
testimony with testimony from the defense’s own expert. The State contends that
Defendant has not shown how Minor’s testimony would have led to a different
result at trial.
{41} “The decision
whether to call a witness is a matter of trial tactics and strategy within the
control of trial counsel.”
Lytle v. Jordan,
2001-NMSC-016, ¶ 47,
130
N.M. 198,
22 P.3d 666 (quoting
State v. Orosco,
1991-NMCA-084, ¶ 35,
113
N.M. 789,
833 P.2d 1155). Especially when it comes to expert testimony, we are
reluctant to second-guess trial counsel’s decisions.
See Lytle,
2001-NMSC-016, ¶ 47. (“Defense counsel may simply have concluded that a battle
of experts would not be beneficial to the defense or that it would have unduly
emphasized or inadvertently reinforced the State’s evidence.”).
{42} Defendant relies on
State
v. Aragon,
2009-NMCA-102,
147 N.M. 26,
216 P.3d 276, to support his
argument that defense counsel’s failure to subpoena Minor was unreasonable
under the first prong of our ineffective assistance of counsel analysis. The
defendant in
Aragon was charged with child abuse based on multiple
doctors’ assessments of the cause of the child’s injuries.
Id. ¶¶ 3-6.
For this reason, the Court noted that “expert testimony was the crux of [the]
case.”
Id. ¶ 12. Because expert testimony was essential to both sides,
the Court concluded that defense counsel had acted unreasonably in failing to
contact or retain “any sort of expert” to understand and rebut the State’s
evidence and “to prepare an adequate defense.”
Id. ¶ 15. The instant
case is distinguishable from
Aragon because cell site analysis was not
the crux of the State’s case against Defendant. Other evidence, namely
Cordova’s eyewitness testimony, placed Defendant at the scene of the homicide.
{43} The record on direct
appeal does not support a finding that defense counsel’s decision not to subpoena
Minor was professionally unreasonable. There could be several reasons defense
counsel decided not to call Minor or any other expert in cell location
technology. We will not speculate as to defense counsel’s motives. A more
developed record in a habeas corpus proceeding would allow for more
comprehensive evaluation of defense counsel’s performance. Accordingly,
Defendant has not shown that defense counsel’s failure to subpoena an expert in
cell site analysis was deficient.
{44} In addition,
Defendant has not made a claim of prejudice on this issue. Defendant has not
shown how Minor’s testimony would have questioned or contradicted the testimony
given by Agent Romero. Therefore, he has not met his burden to show that
Minor’s testimony would have led to a different result at trial. Absent such a
showing of prejudice, Defendant has not made a
prima facie case of
ineffective assistance of counsel on this issue.
C. Defendant’s Remaining Claims of Independent
Error
{45} Defendant argues
that the trial court further erred when it (1) failed to excuse three jurors
for cause, (2) excluded certain photographic evidence as hearsay; (3) failed to
exclude Cordova’s testimony despite the State’s untimely disclosure of his
immunity use agreement, and (4) failed to exclude evidence of Defendant’s prior
bad acts. We review these errors for abuse of discretion.
See State v.
Gardner,
2003-NMCA-107, ¶ 16,
134 N.M. 294,
76 P.3d 47 (explaining that
challenges for cause are reviewed under an abuse of discretion standard);
Otto,
2007-NMSC-012, ¶ 9
(explaining that evidentiary decisions are reviewed
for abuse of discretion);
State v. Guerra,
2012-NMSC-014, ¶ 23,
278 P.3d
1031 (explaining that review of a trial court’s decision to admit evidence that
did not comply with notice and disclosure requirements is for abuse of
discretion);
State v. Rojo,
1999-NMSC-001, ¶ 41,
126 N.M. 438,
971 P.2d
829 (reviewing ruling on admissibility of prior act evidence for abuse of
discretion).
1. Failure to excuse jurors for cause
{46} Defendant
argues that potential jurors 26, 42, and 48 should have been excused for cause
based on their statements that they would prefer to hear from the defendant
before deciding the case. Because the trial court denied defense counsel’s
request to excuse those jurors, Defendant used three of his twelve peremptory
strikes on those jurors. Ultimately, Defendant used all of his peremptory
challenges before the trial court had finished the venire. Defendant asserts he
was prejudiced by the trial court’s failure to excuse potential jurors 26, 42,
and 48 for cause, thereby forcing him to use his peremptory strikes on
potential jurors who had demonstrated their partiality against him.
{47} The United States
and New Mexico Constitutions guarantee the right to a fair and impartial jury
in a criminal trial. U.S. Const. amend. VI;
N.M. Const. art. II, § 14.
Defendant has the burden of proving a potential juror’s partiality.
State v.
Baca,
1983-NMSC-049, ¶ 9,
99 N.M. 754,
664 P.2d 360. A potential juror is
properly excused for cause when his views would “prevent or substantially
impair the performance of his duties as a juror in accordance with his
instructions
and his oath.”
State v. Sutphin,
1988-NMSC-031, ¶ 14,
107 N.M. 126,
753 P.2d 1314 (emphasis added) (quoting
Wainwright v. Witt, 469 U.S.
412, 424 (1985)).
{48} During voir dire,
defense counsel questioned the venire about the presumption of innocence and
whether jurors would need to hear from both sides before reaching a verdict.
When several members of the venire raised their hands in agreement that they
would want to hear from the defense in the case, the court called a bench
conference to clarify that it would want to know which potential jurors would
be unable to follow the court’s instructions on the matter. Following the bench
conference, defense counsel read aloud the jury instruction on the presumption
of innocence and the State’s burden of proof, and the court asked the venire to
raise their hands if they would have trouble following the instruction. Three
potential jurors raised their hands, and those three were eventually excused
for cause. Potential jurors 26, 42, and 48 did not raise their hands after the
jury instruction was read, though they had
previously mentioned that
they felt they should hear from both the State and Defendant before reaching a
verdict.
{49} Prejudice is
presumed when a party must use its peremptory challenges on potential jurors
who should have been excused for cause, so long as that party has exercised
“all of his or her peremptory challenges before the court completes the
venire.”
Fuson v. State,
1987-NMSC-034, ¶ 11,
105 N.M. 632,
735 P.2d
1138. In
Fuson, the defendant was forced to use a peremptory challenge
on a potential juror who should have been excused for cause because he said he
could not be completely impartial as he knew many of the witnesses in the case.
Id. ¶¶ 1, 3. The Court concluded that the defendant was harmed when
potential jurors’ names were called after he had used his last peremptory
challenge.
Id. ¶ 10. Therefore, the defendant’s “right of peremptory
challenge was necessarily impaired by the trial court’s failure to excuse the
person for cause[.]”
Id.
{50} Though Defendant
used all of his peremptory challenges before the venire had been completed, he
has not shown that potential jurors 26, 42, and 48 should have been excused for
cause. Potential jurors 26, 42, and 48 did not raise their hands when the trial
court asked to see who would not be able to follow the court’s instructions and
hold the State to its burden of proof. Though they had previously expressed
concerns about not hearing from both sides of the case, there is no evidence in
the record that their concerns survived proper instruction from the court. By
not raising their hands, potential jurors 26, 42, and 48 indicated that their
views would not impair their ability to perform their duties in accordance with
the court’s instructions. Moreover, even if the record is ambiguous regarding
the ability of these potential jurors to remain impartial, there is no evidence
of manifest error or clear abuse of discretion by the trial court in not
excusing these jurors for cause.
See State v. Wiberg,
1988-NMCA-022, ¶ 21,
107 N.M. 152,
754 P.2d 529.
2. Exclusion of photographs of Defendant’s
affidavit as hearsay
{51} During the
testimony of Detective Kevin Hallstrom, defense counsel sought to admit
photographs of a form Defendant submitted to an insurance company claiming that
his cell phone was lost on May 9, 2014 (the day before the killing) and the
response from the company requesting more documentation. The State objected to
the exhibits as inadmissible hearsay being offered for the truth of the matter
asserted in the documents photographed. Defense counsel made several arguments
that the photographs fell into hearsay exceptions before ultimately arguing
that the photographs were not being offered for their truth, but instead to
show that the detective had knowledge that the phone had been reported lost or
stolen. The trial court ruled that the photographs were being offered to prove
the truth of the statements on the forms and were inadmissible hearsay.
{52} Defendant continues
to argue on appeal that the photographs of the insurance affidavit were not
being offered for the truth of the matter asserted, and further claims that he
was prejudiced by the exclusion of the photographs because he was not able to
question the quality of the detective’s investigation. The State responds that
the photographs were improperly offered for their truth and that Defendant was
not prejudiced because he was still able to question the detective about his
investigation relating to whether the phone had been lost or stolen at the time
of the killing. The State is correct.
{53} As discussed
previously in this decision, out-of-court statements offered for the truth of
the matter asserted are generally inadmissible hearsay. Rules 11-801, -802. The
trial court correctly concluded that the photographs were being offered for
their truth. Defense counsel aimed to discuss Defendant’s assertions within the
photographs with Detective Hallstrom, that is, that Defendant had claimed his
phone was lost the day before the murder. It was not an abuse of discretion for
the trial court to discredit defense counsel’s stated purpose of admitting the
photographs merely to show that the detective had knowledge that Defendant
claimed the phone was missing the day before the murder.
{54} Additionally,
Defendant was not prejudiced by the exclusion of this hearsay evidence. Defense
counsel asked Detective Hallstrom if he investigated whether Defendant’s cell
phone had been lost or stolen. This shows that Defendant was able to question
the completeness of law enforcement’s investigation even without the photographs
admitted into evidence.
{55} For these reasons,
we conclude that the trial court properly excluded as hearsay the photographs
of Defendant’s affidavit.
3. Failure to exclude Cordova’s testimony
{56} During
Cordova’s testimony, defense counsel learned that Cordova had entered into an
immunity use agreement with the State in exchange for his participation at
trial. Defense counsel argued at trial that Defendant was prejudiced by the
State’s failure to disclose the agreement before the trial. On appeal,
Defendant contends that he was prejudiced by the late disclosure of the
immunity use agreement because he was not able to adequately prepare for
cross-examination of the State’s key eyewitness.
{57} “Trial courts
possess broad discretionary authority to decide what sanction to impose when a
discovery order is violated.”
State v. Le Mier,
2017-NMSC-017, ¶ 22,
394
P.3d 959. When the State fails to comply with a discovery order, the trial
court should fashion a sanction based on the “extent of the [State’s]
culpability . . . weighed against the amount of prejudice to the
defense.”
State v. Harper,
2011-NMSC-044, ¶ 16,
150 N.M. 745,
266 P.3d
25 (omission in original) (internal quotation marks and citation omitted). A
trial court is justified in excluding a witness when “the State’s conduct is
especially culpable, such as where evidence is unilaterally withheld
. . . in bad faith, or all access to the evidence is precluded by
State intransigence.”
Id. ¶ 17. In imposing discovery sanctions, trial
courts are advised to seek those sanctions “that affect the evidence at trial
and the merits of the case as little as possible.”
Id. ¶ 16
(internal
quotation marks and citation omitted). This is because “witness exclusion is a
severe sanction and one that should be utilized as a sanction of last resort.”
Le
Mier,
2017-NMSC-017, ¶ 21.
{58} After learning that
the State had not disclosed the immunity use agreement, the trial court allowed
defense counsel to question Cordova without the jury present.
During the
interview, Cordova said he did not remember the details of the agreement he
made with the state months prior but would have remembered if he had been asked
closer in time to the finalization of the agreement. The trial court decided
not to exclude Cordova’s testimony, but sanctioned the State for its tardy
disclosure of the immunity use agreement. The trial court fined the State $275
($25 for every month that it failed to disclose the immunity use agreement to
defense counsel).
{59} The trial court’s
decision to allow Cordova’s testimony and fine the State for its late
disclosure was not an abuse of discretion. The State’s failure to notify
defense counsel of the immunity use agreement before trial does not rise to the
level of culpability contemplated in
Harper. The record does not
demonstrate that the State “unilaterally withheld” notice of the agreement in
“bad faith,” nor did it preclude all access to the evidence.
See Harper,
2011-NMSC-044, ¶ 17. The State explained that there was no intent to hide the
agreement from defense counsel. Furthermore, Cordova was made available to the
defense in pretrial interviews, which shows that the State did not preclude
defense counsel from all access to Cordova’s testimony.
{60} Defendant was not
prejudiced by the State’s late disclosure of the agreement because the trial
court permitted defense counsel to question Cordova outside of the jury before
she cross-examined him at trial. Additionally, defense counsel had access to
all other evidence before trial, including Cordova’s version of events.
Therefore, the trial court’s decision not to exclude Cordova’s testimony and
instead fine the State for its tardy disclosure of the immunity use agreement
was within its broad discretion to impose appropriate discovery sanctions.
4. Denial of Defendant’s motions for new trial
{61} Defendant
argues that the trial court should have declared a mistrial based on two pieces
of admitted evidence of his prior bad acts. The first was Esquirrel’s statement
on the stand that he had bought drugs from Defendant. The second was Ortiz’s
testimony alluding to a four-hour standoff with police. We review the denial of
a motion for new trial for abuse of discretion.
State v. Smith,
2016-NMSC-007, ¶ 69,
367 P.3d 420. “The power to declare a mistrial should be
exercised with the greatest caution. . . . An argument for
mistrial must show that the error committed constituted legal error, and the
error was so substantial as to require a new trial.”
Id. (alteration,
internal quotation marks, and citation omitted).
a. Evidence that Defendant sold drugs to Esquirrel
{62} Prior to trial, the
trial court issued an order instructing the State to “neutralize as much as
possible the testimony regarding drug use by the decedent and/or the defendant”
and forbidding the State from “elicit[ing] any specific drug names.” This order
was issued in accordance with Rule of Evidence
11-404 NMRA, which bars
“[e]vidence of a person’s character or character trait . . . to prove
that on a particular occasion the person acted in accordance with the character
or trait,” unless that evidence is being offered for another reason, such as to
prove motive. Rule 11-404(A)-(B) NMRA. The State’s theory of the case was that
Defendant killed Victim over a drug debt. The order permitted evidence of
Defendant’s drug dealing to prove that motive.
{63} At trial, defense
counsel moved for a mistrial based on Esquirrel’s testimony that he bought
drugs from Defendant. The State argued that there was already evidence before
the jury that Victim had owed a $600 drug debt to Defendant, so Esquirrel’s
testimony did not offend the pretrial order. The trial court denied the motion
for new trial, in part because Esquirrel did not state that he bought
methamphetamine
from Defendant, so his testimony did not exceed the bounds of the pretrial
order.
{64} The trial
court did not abuse its discretion in denying defense counsel’s motion for new
trial based on Esquirrel’s testimony. Esquirrel only briefly mentioned that he
bought drugs from Defendant. Because the trial court had already ruled that
evidence of Defendant’s drug sales was permissible to prove motive under Rule
11-404(B), Esquirrel’s testimony was not legal error.
See Smith,
2016-NMSC-007, ¶ 69.
b. Evidence of a “standoff”
{65} During direct
examination of Ortiz, the State asked if Ortiz remembered telling police about
Defendant’s statements regarding Victim’s killing. When Ortiz continually
stated that he did not recall what he said to police, the State asked if he
would like to hear a recording of his conversation with law enforcement.
Without having been asked a question, Ortiz blurted out, “If it’s on recording,
it’s after four hours of getting high on the standoff, so I don’t care.” When
the State asked again if he would like to hear the recording, Ortiz stated, “I
don’t want to hear it. I’m telling you right now, I was there for four hours
during a standoff.”
{66} Defense
counsel moved for a mistrial based on the mention of a “standoff,” referring to
the confrontation between police and Defendant at the time of his arrest. The
trial court agreed that the mention of a standoff was improper but denied
defense counsel’s motion. The trial court explained that Ortiz did not get into
“enough detail about what he means about a standoff [and h]e said nothing about
the level to which Mr. Gallegos may have been in a standoff.” The trial court
offered to immediately excuse Ortiz if defense counsel did not wish to
cross-examine him, which defense counsel accepted.
{67} When inadmissible
testimony comes in at trial, on appeal “we must determine whether there is a
reasonable probability that the improperly admitted evidence could have induced
the jury’s verdict.”
State v. Gonzales,
2000-NMSC-028, ¶ 39,
129 N.M.
556,
11 P.3d 131,
overruled on other grounds by Tollardo,
2012-NMSC-008,
¶ 37 n.6. Any error stemming from Ortiz’s testimony was harmless. The State did
not mention the standoff again and did not use Ortiz’s statement in closing its
case to the jury. As the trial court stated, it was not clear from Ortiz’s
testimony that Defendant was involved at all in the “standoff.” For these
reasons, it is not reasonably probable that the jury rested its verdict on
Ortiz’s reluctant testimony and brief, unexplained mention of a “standoff.”
Consequently, Defendant is not entitled to a new trial on these grounds.
{68} Finally, Defendant
argues he did not receive a fair trial on the basis of cumulative error. “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.”
Guerra,
2012-NMSC-014, ¶ 47 (internal quotation marks and citations omitted). This
doctrine is “strictly applied and may not be successfully invoked if the record
as a whole demonstrates that the defendant received a fair trial.”
Id.
(internal quotation marks and citation omitted).
{69} We conclude above
that the trial court indeed erred when it admitted the anonymous tip alleging
that Defendant bragged that police had not found the hidden murder weapon.
However, this error was harmless. Our study of the record and the applicable
legal standards of review leads us to conclude that no additional errors were
made at Defendant’s trial. As a result, Defendant is not entitled to a new
trial on the basis of cumulative error.
{70} We conclude that
Defendant received a fair trial. We determine that the trial court’s admission
of the anonymous tip regarding the murder weapon was harmless error.
Defendant’s remaining claims of error are unpersuasive. Furthermore, Defendant
has not made a
prima facie case of ineffective assistance of counsel. We
therefore affirm Defendant’s convictions.
BARBARA J. VIGIL, Justice
JUDITH K. NAKAMURA, Chief Justice
MICHAEL E. VIGIL, Justice
PETRA JIMENEZ MAES, Justice, Retired
CHARLES W. DANIELS, Justice, Retired