State v. Gallegos

STATE V. GALLEGOS

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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
TRINIDAD GALLEGOS,
Defendant-Appellant.

NO. S-1-SC-36110

SUPREME COURT OF NEW MEXICO

March 21, 2019

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Alisa Hadfield,
District Judge

COUNSEL

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

JUDGES

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

AUTHOR: BARBARA J. VIGIL

DECISION

VIGIL, Justice.

I. INTRODUCTION
{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.

II. BACKGROUND

{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.

III. DISCUSSION
{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.

D. Cumulative Error
{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.

IV. CONCLUSION

{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.

{71} IT IS SO ORDERED.

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