A-1-CA-34825 | Omnilex

Full text

Court of Appeals of New Mexico
Filed 8/5/2019 11:12 AM

OCR transcription for search; preserved printed pages are authoritative

10
11
12
13
14
15
16

Corrections to this opinion not affecting the outcome. at the Court's discretion. can occur up to the time of publication with NM
Compilation Commission. The Court will ensure that the electronic version of this opinion is updated accordingly in Odyssey.

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Court of Appeals of New Mexico
Filed 8/5/2019 11:12 AM

STATE OF NEW MEXICO, /
al
Plaintiff-Appellee, Mark Reynolds
Vv. No. A-1-CA-34825
ARMANDO RODRIGUEZ,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

Raymond L. Romero, District Judge
Hector H. Balderas, Attorney General

Santa Fe, NM

Walter Hart, Assistant Attorney General
Albuquerque, NM

for Appellee

Law Offices of Jennifer J. Wernersbach, P.C.
Jennifer J. Wernersbach

Albuquerque, NM

for Appellant

MEMORANDUM OPINION
BOGARDUS, Judge.
4; Defendant Armando Rodriguez appeals from his conviction by a jury of

possession of a firearm or destructive device by a felon, contrary to NMSA 1978,

Section 30-7-16 (2001, amended 2019).' Defendant makes the following claims on
appeal: (1) the district court abused its discretion in not declaring a mistrial or
excluding witnesses who violated the sequestration order; (2) the prosecutor made
improper statements during closing argument; (3) the State’s failure to submit the
gun for fingerprint or DNA analysis deprived Defendant of exculpatory evidence;
and (4) cumulative error deprived Defendant of a fair trial. Unpersuaded, we affirm.
BACKGROUND

{2} Defendant, a convicted felon, and another man, who were both intoxicated,
joined a small bonfire party in the backyard of a home. Defendant was seen handing
a gun to the other man when they first arrived. Shortly thereafter, an altercation
ensued and Defendant was told to leave. Defendant was again seen holding a gun as
he left the party and threatened to shoot. When the police arrived, Defendant and the
other man were sitting in the cab of a pick-up truck. Officers later found a gun under
the passenger seat of the truck.

{3} The State charged Defendant with possession of a firearm or destructive
device by a felon (the possession charge), contrary to Section 30-7-16; negligent use

of a deadly weapon (intoxication), contrary to NMSA 1978, Section 30-7-4(A)(2)

'All references to Section 30-7-16 in this opinion are to the 2001 version of
the statute.

(1993); and battery, contrary to NMSA 1978, Section 30-3-4 (1963). The district
court granted Defendant’s motion to sever the possession charge.

{43 Defendant was convicted of the possession charge that is the subject of this
appeal. Because this is a memorandum opinion and the parties are familiar with
the facts and procedural history of the case, we only discuss additional facts as are
necessary to our disposition of the case.

DISCUSSION

I. The Sequestration Order

5} During voir dire, the State’s four civilian witnesses (witnesses}—family
members who were at the party—were brought in front of the prospective jurors for
identification. Before the witnesses left the courtroom, the district court invoked
Rule 11-615 NMRA and instructed the witnesses, in the presence of the counsel for
both parties, that they were not to talk with each other about the case, the testimony
they were going to give, or the testimony they had given once they had testified. The
district court further instructed these witnesses that they could speak to the attorneys
involved in the case, but if they did so, to “please make sure that is done outside of
the hearing of the other witnesses.” The parties continued voir dire, and the court
empaneled a jury. After the parties presented their opening statements, the district

court recessed for lunch.

{6} | Upon returning from lunch, defense counsel told the district court that he had
seen the prosecutor and the State’s witnesses in a witness room together during the
lunch break. Defense counsel reported that it appeared that they were discussing
previously undisclosed photographs of the gun Defendant was accused of
possessing. Defense counsel reported watching several minutes of conversation.
Defense counsel then moved the court to exclude the witnesses.

{7} The prosecutor stated in response, “Clearly, | have made a mistake.”
However, the prosecutor indicated that he was not aware that he could not ask the
witnesses questions in the presence of one another. The prosecutor reported that the
witnesses were not conferring with one another, but could hear each other’s answers
to the questions asked of each. The prosecutor admitted that the questions were
substantive.

{8} The district court noted that it “very clearly admonished the witnesses and
indicated to the attorneys that it was their duty to ensure that there was compliance
with the rule.” The court concluded that the prosecutor violated its admonishment
and invocation of the sequestration rule. To remedy the violation, the district court
decided that Defendant would be allowed to cross examine each of the witnesses as
to whether they were in the room together discussing the case and what specifically

they were discussing.

{9} Defendant moved for a mistrial. The district court denied both that motion and
one to have the prosecutor made a witness indicating that there was no way to undo
what had already been done—the witnesses had already been in a position to hear
each other say whatever they had said in the witness room. Therefore, the district
court reasoned that the only effective remedy would be to bring out the information
about the meeting in front of the jury, which then could use that information in
assessing the witnesses’ credibility.

{10} On appeal, Defendant argues that the prosecutor’s failure to comply with the
sequestration order violated Rule 11-615 and constituted prosecutorial misconduct.
Defendant contends that the only sufficient remedies would have been exclusion of
the State’s witnesses or declaration of a mistrial. Defendant argues that reversal of
his conviction is required under either theory.

a1; Rule 11-615 allows a district court to, on its own, “order witnesses excluded
so that they cannot hear other witnesses’ testimony[.]” “The purpose of [Rule] 11-
615 is to prevent witnesses from tailoring their testimony to the testimony of other
witnesses.” State v. Ruiz, 1995-NMCA-007, 4 22, 119 N.M. 515, 892 P.2d 962.
“When a violation of [Rule 11-615] occurs, the choice of remedy is within the sound
discretion of the [district] court.” State v. Reynolds, 1990-NMCA-122, { 28, 111
N.M. 263, 804 P.2d 1082. “[A]lthough a mistrial is a possible remedy for a violation

of Rule 11-615, other potential remedies include striking testimony, citing for

contempt, instructing the jury, permitting examination of the witnesses by counsel
concerning how their testimony may have been tainted, and permitting argument by
counsel.” State v. Salas, 2017-NMCA-057, J 20, 400 P.3d 251 (internal quotation
marks and citation omitted). “Generally, it is unnecessary to prohibit the tainted
witness from testifying.” Reynolds, 1990-NMCA-122, { 28. “Permitting a witness
to testify who ha[s] violated the rule is within the discretion of the [district] court.”
State v. Simonson, 1983-NMSC-075, § 25, 100 N.M. 297, 669 P.2d 1092. “The
district court has broad discretion under Rule 11-615 and we will not disturb the
decision of the [district] court absent a clear abuse of this discretion and prejudice to
the complaining party.” State v. Shirley, 2007-NMCA-137, § 33, 142 N.M. 765, 170
P.3d 1003 (alteration, internal quotation marks, and citation omitted). “A district
court abuses its discretion if its ruling is clearly against the logic and effect of the
facts and circumstances before the court.” Salas, 2017-NMCA-057, ¥ 11 (internal
quotation marks and citation omitted).

412} From the discussion that the district court had with the prosecutor out of the
presence of the jury, the district court had to determine “[w]hether the violation was
deliberate or inadvertent, or whether such a violation was condoned by counsel[.]”
State v. Barboa, 1973-NMCA-025, J 14, 84 N.M. 675, 506 P.2d 1222. With that
knowledge, the district court granted Defendant a remedy that is one of a number of

acceptable remedies for violations of the rule. See Salas, 2017-NMCA-057, {| 20

(recognizing that the district court can allow “examination of the witnesses by
counsel concerning how their testimony may have been tainted” as a remedy for a
Rule 11-615 violation).

{13} Defendant has failed to identify any prejudice that he suffered by the district
court allowing the witnesses to testify beyond the “inherent prejudice ... that
witnesses would testify based not on their independent memories, but on those
memories as enhanced by others.” See Ruiz, 1995-NMCA-007, { 22. To remedy that
prejudice, the district court allowed Defendant to cross-examine the witnesses
regarding the meeting and what occurred therein.

(143 Defendant cross-examined only two of the witnesses who met with prosecutor
during lunch.? They both testified as to what occurred during the lunch meeting.
Both attended the lunch meeting with the two other witnesses and were able to hear
the substance of each witness’s expected testimony. The prosecutor asked the
witnesses to describe the gun before they were shown a picture of a gun that matched
the description. Nobody invented details or changed their “stories” based on what
was discussed during the meeting. The jury was free to accept or reject the

explanations and to determine the credibility of the witnesses involved.

2Defense counsel chose not to cross-examine the two other witnesses about
the meeting.

{15} We cannot say that the district court’s choice of remedy was “clearly against
the logic and effect of the facts and circumstances before the court.” Salas, 2017-
NMCA-057, § 11 (internal quotation marks and citation omitted). Nor can we say
that Defendant suffered prejudice because of the district court’s ruling. Furthermore,
in light of the evidence of Defendant’s guilt, we cannot conclude that the
“prosecutor’s misconduct had such a pervasive and prejudicial effect on the jury’s
verdict that [D]efendant was deprived of a fair trial” as Defendant suggests.

{16} Our conclusion is confined by our standard of review. Nothing in this opinion
should be read to condone the behavior of the prosecutor in this case. All counsel
are expected to follow the instructions of the court and to seek guidance if those
instructions are in any way unclear.

II. The State’s Closing Argument

17} Defendant claims that during closing argument the prosecutor improperly
commented on Defendant’s truthfulness, misstated the burden of proof, and
“generally argu[ed] in a manner designed to appeal to sentiment and passion[.]”
Because Defendant did not object to any of the prosecutor’s comments during
closing arguments, we review for fundamental error. State v. Sosa, 2009-NMSC-
056, 9 26, 147 N.M. 351, 223 P.2d 348. “Prosecutorial misconduct rises to the level
of fundamental error when it is so egregious and had such a persuasive and

prejudicial effect on the jury’s verdict that the defendant was deprived of a fair trial.”

State v. Allen, 2000-NMSC-002, § 95, 128 N.M. 482, 994 P.2d 728 (internal
quotation marks and citation omitted).

A. _Defendant’s Truthfulness

18} Defendant argues that the prosecutor’s argument in closing was improper
because he “referr[ed] to [Defendant] as a liar and inferr[ed] that he passed the
polygraph because he was a good liar.” Defendant also suggests that the prosecutor’s
argument that Defendant should not be believed “because he drunkenly hopped a
fence to crash a party amounted to the prosecutor’s personal attack on [Defendant]
rather than highlighting evidence that would shed light on credibility.”

{19} Here, Defendant introduced evidence of a polygraph examination that found
he answered truthfully when responding that he had not handled the gun, did not
know there was a gun in the truck, and that the gun was never in his hands on that
night. In response, the prosecutor argued by inference during closing argument that
the polygraph results, which the polygrapher testified are based on bodily reactions
to stress and uncomfortable situations, could be explained by Defendant being a
good liar as evidenced by his bodily reactions while testifying. We cannot say such
a responsive argument is improper. See State v. Aguilar, 1994-NMSC-046, §] 22, 117
N.M. 501, 873 P.2d 247 (“Prosecutors may comment on [a] witness’s veracity as
long as a personal opinion is not expressed and as long as the comments are not

intended to incite the passion of the jury.”). Additionally, even if we were to assume

the prosecutor’s commentary on Defendant drunkenly hopping a fence as it related
to credibility was improper, we cannot conclude that this isolated statement resulted
in such prejudice that it denied Defendant a fair trial in light of the evidence of his
guilt. See Allen, 2000-NMSC-002, § 95 (“An isolated, minor impropriety ordinarily
is not sufficient to warrant reversal because a fair trial is not necessarily a perfect
one.” (internal quotation marks and citations omitted)). Therefore, we conclude that
any error that may have resulted does not rise to the level of fundamental error.

B. Burden of Proof

20} Defendant argues that “[i]t was a misstatement of the law and improper for
the prosecutor to argue in closing that in order to find reasonable doubt, the jury
would have to believe that the four witnesses were blatantly lying or hallucinating.”
See State v. Diaz, 1983-NMCA-091, 7 18, 100 N.M. 210, 668 P.2d 326 (“Counsel
may not misstate the law.”). Defendant further argues that the same comments
improperly shifted the burden. We are not persuaded.

213. Our Supreme Court has recognized that “[i]f after a case is presented, the
evidence is essentially reduced to which of two conflicting stories is true, a party
may reasonably infer, and thus argue, that the other side is lying.” Aguilar, 1994-
NMSC-046, 4 23. Such a scenario was present in this case. Defendant’s testimony
directly conflicted with the testimony of the State’s witnesses who were present at

the bonfire party. Defendant said that he was invited before jumping the fence; all

of the State’s witnesses stated that Defendant was not invited. Defendant testified
that he was not intoxicated upon arrival; three of the State’s witnesses testified that
Defendant was intoxicated when he arrived. Defendant testified that he never heard
or saw a firearm that night; the State’s witnesses each testified to seeing and/or
hearing a gun. Based on these examples of the contradictory testimony, we disagree
that the prosecutor’s argument misstated the law or improperly shifted the burden of
proof as Defendant suggests. Accordingly, these statements did not constitute
fundamental error.

III. Testing of the Firearm

22} Defendant argues that the State’s failure to submit the firearm for fingerprint
or DNA analysis deprived him of exculpatory evidence that would have tended to
show that he did not handle the firearm. In support of this argument, Defendant relies
exclusively on State v. Ware, 1994-NMSC-091, 118 N.M. 319, 881 P.2d 679.

23} In Ware, our Supreme Court identified “three general circumstances that give
rise to a claim that the [s]tate violated a criminal defendant’s right to due process by
failing to provide evidence to the defense which is within, or potentially within, the
[s]tate’s purview.” Jd. J 14 (alteration, internal quotation marks, and citation
omitted). The first is when the state “collect[s] and preserv[es] evidence from the
crime scene only to withhold evidence when the defendant requests it, or when it

otherwise becomes material to the defense.” /d. (internal quotation marks and

citation omitted). The second is “when the [s]tate destroys, loses, or fails to preserve
evidence that has previously been collected during the investigation of the crime.”
Id. § 15. The third is “when the [s]tate fails to collect evidence from the crime scene
in the first place.” Jd. J 16.

243 The Court in Ware was analyzing circumstances that fell within the third
category—failure to collect evidence from the crime scene. /d. [J] 23-28. The Court
adopted “a two-part test for deciding whether to sanction the [s]tate when police fail
to gather evidence from the crime scene.” /d. { 25. First, the evidence must be
material to the defense, meaning that “there is a reasonable probability that, had the
evidence been available to the defense, the result of the proceeding would have been
different.” Jd. (internal quotation marks and citation omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
(internal quotation marks and citation omitted). Second, if the defense has
demonstrated materiality, the court then considers “the conduct of the investigating
officers[.]” Jd. J 26.

25} Here, Defendant relies exclusively on his unsupported assertions that
fingerprint or DNA evidence would have been favorable to him. These self-serving
statements are insufficient in light of the other facts that were in front of the jury.
Two of the State’s witnesses testified that they saw Defendant in possession of the

gun; therefore, the evidentiary value of the gun, and any fingerprints or DNA

evidence contained on it, is lessened. Furthermore, it is just as likely that any
fingerprint or DNA evidence would have been cumulative of the witness testimony.
Therefore, Defendant has failed to establish materiality, and we need not address the
second prong of the Ware test. See id. J] 25-26 (stating that materiality is a
“threshold matter” and that the investigating officer’s conduct is considered only
“Ti]f the evidence is material to the defendant’s defense”). We also note that the State
did not deny Defendant access to the gun for testing by his own experts. We therefore
perceive no error, let alone fundamental error.

IV. Cumulative Error

6} Asa final argument, Defendant contends that cumulative error deprived him
of a fair trial. “The doctrine of cumulative error applies when multiple errors, which
by themselves do not constitute reversible error, are so serious in the aggregate that
they cumulatively deprive the defendant of a fair trial.” State v. Maxwell, 2016-
NMCA-082, 7 32, 384 P.2d 116 (internal quotation marks and citation omitted). For
the reasons discussed in the preceding sections, and because we have concluded that
Defendant was not deprived of a fair trial, his cumulative error claim fails. See State
v. Martin, 1984-NMSC-077, 4 17, 101 N.M. 595, 686 P.2d 937 (“The doctrine [of
cumulative error] cannot be invoked if no irregularities occurred or if the record as

a whole demonstrates that a defendant received a fair trial.” (citations omitted)).

—

CONCLUSION
{27}

283 ITISSO ORDERED.

WE CONCUR:

aa ONG ee

LINDA M. VANZI, Judge

ZACHARY AXIVES, Judge

For the foregoing reasons, we affirm Defendant’s conviction.

his Pree Gort Hud

KRISTINA BOGARDUS, Judge

August 5, 2019- State of New Mexico v. Armando Rodriguez, No. A-1-CA-34825

Full text

OCR transcription for search; preserved printed pages are authoritative

Continue your research in ChatGPT or Claude