State v. Cuellar

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: June 15, 2026

No. S-1-SC-40793

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

LEE MARCO CUELLAR,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Britt M. Baca, District Judge

Bennett J. Baur, Chief Public Defender
Santa Fe, NM
Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM

for Appellant

Raúl Torrez, Attorney General
Santa Fe, NM
Michael J. Thomas, Assistant Solicitor General
Albuquerque, NM

for Appellee

DECISION

THOMSON, Justice.

{1} Defendant Lee Cuellar appeals his conviction for the willful and deliberate first-
degree murder of his wife, contrary to NMSA 1978, Section 30-2-1(A)(1) (1994). He
argues that the district court committed reversible error in permitting the State to present
expert testimony during its case-in-chief, which he claims was irrelevant at the time it
was offered and was therefore unlawful anticipatory rebuttal evidence. We conclude that
(1) the State’s expert testimony was relevant to the State’s case-in-chief and (2) even if,
as Defendant contends, the testimony was proper rebuttal evidence, the district court
has discretion to vary the order of trial and order of proof. As the issues presented on
appeal have been previously decided by the Court, and because the district court
committed no error, we affirm by nonprecedential decision. See Rule 12-405(B)(1)
NMRA.

I. BACKGROUND

{2} Defendant killed his wife, Rosalejandra Cisneros-Cuellar, on the morning of May
23, 2021, and admitted to the murder to police within hours. He told the police she had
appeared to be a demon, and that he intended to kill himself after killing her. Given
these admissions, the central issue at trial was not whether Defendant killed his wife,
but whether Defendant possessed the deliberate intent required for a first-degree
murder conviction.

{3} Leading up to trial, defense counsel hired a forensic psychologist, Dr. Samuel
Roll, to examine Defendant and testify as an expert witness. Dr. Roll’s expert report
concluded that Defendant’s psychological issues, including post-traumatic stress
disorder (PTSD) and hallucinations, significantly impaired his capacity to perceive
events and people realistically and prevented him from using his mind to make plans
and decisions. The State hired its own forensic psychologist to examine Defendant and
testify as an expert witness on specific intent. The State moved the court for an order
authorizing its expert to meet and examine Defendant. The motion was denied and the
State’s expert instead reviewed the report prepared by Dr. Roll, along with discovery
materials.

{4} The State’s theory at the first trial was that Defendant planned to kill his younger
wife out of jealousy and insecurity over her increased independence as she developed
her own career, made her own friends, and sought an education. Defense counsel
provided an alternative theory: Defendant suffered from PTSD and other mental health
issues and only ever formed a plan to kill himself, not his wife.

{5} Several days into trial, Defendant moved the district court to prohibit the State’s
expert from testifying during the State’s case-in-chief. Defendant argued that the State’s
expert could only properly testify on rebuttal, because the State intended to elicit
testimony on ability to form deliberate intent, which Defendant posited would necessarily
be based on Dr. Roll’s expert report.1 Defendant made two arguments to support
delaying the testimony: (1) testimony on ability to form deliberate intent was irrelevant

1Defendant also argued that the expert witness intended to attack Dr. Roll’s methodologies, which would
not be relevant until after the report was admitted as evidence. The trial court disposed of this argument
after the State clarified it did not intend to attack Dr. Roll’s report. Although Defendant raises this issue
again on appeal, he provides no citation indicating where the State attacked Dr. Roll’s report. We
therefore decline to review the issue. Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309
P.3d 53 (declining to rule on “an inadequately briefed issue” to prevent straining judicial resources and to
limit the risk of error).
and therefore inadmissible until Defendant presented his case and claimed he was
unable to form deliberate intent, and (2) as a matter of proper trial order, the evidence
was only proper as rebuttal evidence, after Defendant had introduced Dr. Roll’s report.
The State addressed Defendant’s concern, in part, by agreeing that its expert would not
base any of his opinion on Dr. Roll’s report, and would instead limit his opinions to a
review of the discovery, which included lapel footage, police reports, medical records,
and detective interviews with Defendant.

{6} The court denied Defendant’s motion, reasoning that the jury had to determine
whether Defendant acted with deliberate intent, and the State was using its expert to
attempt to show Defendant was capable of acting with deliberate intent. The State’s
expert was thus permitted to testify during the State’s case-in-chief. However, shortly
after the State’s expert testified, the first trial ended in a mistrial for reasons unrelated to
this appeal.

{7} In Defendant’s second trial, both parties advanced substantially the same
theories. Despite the similar strategy of both trials, in the second trial defense counsel
did not object to the State’s expert testifying during the State’s case-in-chief. The State’s
expert opined that psychiatric disorders do not necessarily prevent a person from
forming deliberate intent. When defense counsel presented its case, Dr. Roll opined that
Defendant was not “able to use his mind to make plans and make decisions.”

{8} The jury found Defendant guilty of willful and deliberate first-degree murder.
Defendant now appeals his conviction, reiterating arguments from the first trial that were
not renewed at the second trial. Specifically, he argues that the district court erred by
admitting irrelevant evidence which violated the prescribed order of criminal trials.

II. DISCUSSION

{9} Where preserved, we review a court’s evidentiary decisions for an abuse of
discretion. State v. Allen, 2000-NMSC-002, ¶ 17, 128 N.M. 482, 994 P.2d 728. While
both parties agree the issue was preserved, both point only to motions and hearings
from the first trial. Neither party provides a citation indicating the arguments raised here
were preserved in the second trial. The Court will not search the record to find whether
an issue was preserved. See id. ¶ 113. Because there is no evidence the arguments
here were preserved for review, we cannot review the district court’s decision for an
abuse of discretion. See State v. Cordova, 1999-NMCA-117, ¶ 28, 128 N.M. 390, 993
P.2d 104 (explaining objections made during the first trial do not preserve an issue for
appeal from a subsequent trial). However, this Court may review unpreserved
evidentiary questions for either plain error or fundamental error. State v. Rojo, 1999-
NMSC-001, ¶ 45, 126 N.M. 438, 971 P.2d 829. While we are under no obligation to
review an unpreserved issue for error where neither party has made such argument,
see State v. Gutierrez, 2003-NMCA-077, ¶ 9, 133 N.M. 797, 70 P.3d 787 (noting that
our courts do not typically perform a review “not invited by the appellant”), we
nevertheless consider the argument here, because this is a direct appeal as of right
from a first-degree murder conviction. See N.M. Const. art. VI, § 2 (providing a direct
right of appeal to this Court from a sentence of death or life imprisonment).
{10} “The first step in a plain or fundamental error analysis is to determine whether the
evidence in question was erroneously admitted.” State v. Astorga, 2015-NMSC-007, ¶
50, 343 P.3d 1245. See also Campos v. Bravo, 2007-NMSC-021, ¶ 8, 141 N.M. 801,
161 P.3d 846 (“[W]e first determine if error occurred; if so, we next determine whether
that error was fundamental.”). If there was error, we must then consider whether the
“admission of the evidence in question creates grave doubts concerning the validity of
the verdict.” Astorga, 2015-NMSC-007, ¶ 49 (internal quotation marks and citation
omitted). Because we find no error with allowing the State’s expert to testify in the
State’s case-in-chief, we do not reach the question of whether the alleged error was
plain or fundamental.

A. The Testimony of the State’s Expert Was Relevant to Proving Deliberate
Intent

{11} Defendant argues that the testimony from the State’s expert was not relevant
until Defendant chose to claim he was incapable of forming deliberate intent and that
allowing such testimony was error because “[i]rrelevant evidence is not admissible”
under Rule 11-402 NMRA. We disagree and conclude that the testimony was relevant
to the State’s case-in-chief.

{12} “Evidence is relevant if (A) it has the tendency to make a fact more or less
probable” and “(B) the fact is of consequence in determining the action.” Rule 11-401
NMRA. The State charged Defendant with willful and deliberate first-degree murder,
which required the State to prove that Defendant acted with deliberate intent. See § 30-
2-1(A)(1); UJI 14-201 NMRA (“[T]he state must prove to your satisfaction beyond a
reasonable doubt . . . [t]he killing was with the deliberate intention to take away the life
of [the victim.]”). Defendant’s ability to form deliberate intent—and, necessarily, his
capacity to do so—was squarely within the State’s burden from the outset of trial. See
UJI 14-201. Additionally, Defendant’s confession, which was played for the jury during
the State’s case-in-chief, included statements—like Defendant’s assertion that his wife
had turned into a demon—which could cause the jury to question whether Defendant
was capable of forming deliberate intent.

{13} The State’s expert testified that Defendant made statements during his encounter
with the police that were consistent with a person capable of deliberating. In his opinion,
the body cam footage indicated Defendant was oriented to space and time, had
knowledge of consequences, and was able to make plans. He also relied on
psychological literature to note that hallucinations and other PTSD symptoms do not
preclude the ability to form intent. This testimony was relevant to the State meeting its
burden of proof that Defendant acted with deliberate intent. Accordingly, there was no
error in permitting the State’s expert to testify in the State’s case-in-chief.

{14} Even if we were persuaded that the State’s expert’s testimony was not relevant
until Defendant raised the issue of inability to form deliberate intent, the testimony would
be premature rather than irrelevant. Our courts have distinguished between prematurely
admitted evidence and evidence that is entirely irrelevant. See State v. Foster, 1998-
NMCA-163, ¶ 18, 126 N.M. 177, 967 P.2d 852. Where an issue is unpreserved and
“there is no question that the evidence would have been admissible later in the trial . . .
we will not reverse simply because the evidence was admitted prematurely.” Id. Thus
even if the testimony was irrelevant to the State’s case-in-chief, it would have become
relevant and thereby admissible after Defendant claimed he was unable to form
deliberate intent.

B. Courts Have Discretion to Vary the Order of Trial and Order of Proof

{15} Defendant also argues that the district court erred because New Mexico’s Rules
of Criminal Procedure prohibit the State from offering anticipatory rebuttal evidence. His
argument hinges on the expert testimony being irrelevant to the State’s case-in-chief,
and thus only proper on rebuttal. Although we have already rejected Defendant’s
characterization of the testimony as irrelevant, we nevertheless address Defendant’s
argument and conclude that there was no error here.

{16} Defendant offers a comparison of our civil and criminal procedural rules in an
attempt to show that trial order is mandatory for criminal courts. He argues that our
Rules of Civil Procedure provide explicitly for the court to vary the order of civil trials in
Rule 1-040(C)(3) NMRA, while its criminal counterpart, Rule 5-607 NMRA, contains no
such carveout. Compare Rule 1-040(C)(3) (civil rule providing “[t]he order of proceeding
in trials, unless otherwise directed by the court, shall be as follows” (emphasis added)),
with Rule 5-607 (criminal rule providing “[t]he order of trial shall be as follows”
(emphasis added)). This argument ignores Paragraph J of Rule 5-607, which authorizes
judicial discretion in the submission of evidence. Rule 5-607(J) (“[A]t any time before
submission of the case to the jury, the court may, for good cause shown, permit the
state or defense to submit additional evidence.”). It also ignores over a century of
precedent in which our courts have repeatedly affirmed judicial discretion over the order
of trial and order of proof in criminal proceedings.

{17} Since our territorial days, New Mexico courts have exercised flexibility in the
order of trial in criminal and civil cases, because “in almost every case circumstances
arise which disturb the strict enforcement of the procedural rule . . . . It follows that some
one [sic] must have the power to vary the order of proof to meet the exigencies of any
given trial . . . and that power is vested in the trial judge.” State v. Carabajal, 1920-
NMSC-086, ¶ 13, 26 N.M. 384, 193 P. 406 (citing to territorial cases holding the same).
Our courts have continued to hold that “the order of trial in a criminal case and of proof
therein is largely within the discretion of the court,” State v. Cummings, 1957-NMSC-
105, ¶ 8, 63 N.M. 337, 319 P.2d 946 (internal quotation marks and citation omitted),
even after adopting new rules of criminal procedure in the 1970s. See State v. Mead,
1983-NMCA-055, ¶ 8, 100 N.M. 27, 665 P.2d 289 (“The trial court has complete
discretion to determine the order of proof.”), rev'd sub nom. on other grounds by State v.
Segotta, 1983-NMSC-092, ¶¶ 1, 10, 100 N.M. 498, 672 P.2d 1129. We could not find,
nor does Defendant cite, any New Mexico cases prohibiting judicial discretion in the
order of criminal trials. We note that while there are scenarios in which varying the order
of trial could prejudice a defendant and constitute error, that scenario is not before us.
{18} Here, it was the State’s burden to show deliberate intent. UJI 14-201. To meet
this burden, the State had an expert witness testify about whether the symptoms
described by Defendant during the police lapel footage and subsequent interviews
would preclude a person from forming deliberate intent. The testimony was thus
relevant to the State’s case-in-chief, not rebuttal evidence, and the district court did not
violate our rules of evidence or criminal procedure by permitting the testimony prior to
Defendant’s case-in-chief.

III. CONCLUSION

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

{20} IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

JULIE J. VARGAS, Chief Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

BRIANA H. ZAMORA, Justice