May 07, 2009 – State of New Mexico v. Christopher Smile, No. 27,338

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	MAY 7, 2009
NO. 27,338
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CHRISTOPHER SMILE,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Jerry H. Ritter, Jr., District Judge
Gary K. King, Attorney General
Santa Fe, NM
James W. Grayson, Assistant Attorney General
Albuquerque, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Mary A. Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
FRY, Chief Judge.
{1} 	Defendant appeals from his conviction for aggravated stalking in violation of
NMSA 1978, Section 30-3A-3.1 (1997). 	Defendant argues that his conduct was
insufficient to support a charge of aggravated stalking, that testimony regarding
statements he made to the police prior to and after his arrest should have been
suppressed because he was not read his Miranda rights, and that the trial court
erroneously admitted evidence that Defendant had attempted to plead guilty at his first
appearance. For the following reasons, we affirm Defendant’s conviction.
I. 	BACKGROUND
{2} 	Defendant and Tamisha, the victim of Defendant’s stalking, met online. After
having regular telephone conversations over a period of time, Defendant traveled from
Little Rock, Arkansas, to Alamogordo, New Mexico, to meet Tamisha in person.
After initially staying in a motel room that Tamisha had rented, Defendant stayed for
a few weeks at an apartment being rented by Tamisha’s friend Samantha. Although
the relationship between Tamisha and Defendant was initially friendly, about three
weeks after Defendant had arrived in Alamogordo, Tamisha became concerned that
Defendant was more serious about the relationship than she was. Tamisha decided
that Defendant needed to move out of Samantha’s apartment, so she packed up

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Defendant’s belongings and left them with one of Defendant’s co-workers.
{3} 	Later that evening, Defendant showed up at Samantha’s apartment looking for
Tamisha. Samantha told Defendant that Tamisha was not there and, according to the
girls’ testimony, Defendant pretended to leave. As soon as Tamisha started to talk,
however, Defendant began yelling from outside that he knew she was in there and
started pounding on the door because, according to his testimony, he was enraged that
Samantha had lied to him and that Tamisha was hiding from him. After cursing and
shouting for Tamisha to come out of the apartment to no avail, Defendant threatened
to damage Tamisha’s and Samantha’s cars that were parked in front of the apartment.
The girls immediately called the police and ran outside to ensure that their vehicles
were not damaged.
{4} 	Following this incident, Tamisha and Defendant reconciled for a short time.
However, the relationship deteriorated quickly after Tamisha went on a weekend trip
with some of her friends. Defendant testified that while Tamisha was gone, he had a
vision while staring at a blank television screen in which he saw Tamisha being
intimate with another man. When Tamisha returned to Alamogordo, Defendant went
to Tamisha’s apartment and accused her of cheating on him while she was out of
town. Tamisha told Defendant that they were just friends and that she had in fact been

3
with someone else over the weekend. Defendant became enraged by this comment
and started to move toward Tamisha and her friend Hope in a threatening manner. In
addition, Defendant stated, “[if] I see [you and your new boyfriend] together, I’m
killing both of you.” Fearing for their safety, Tamisha and Hope pushed Defendant
out of the apartment and called the police. By the time the police arrived, Defendant
had left the scene. The responding officer advised Tamisha that the best way to stop
Defendant from threatening her was to obtain a temporary restraining order (TRO).
Because of the threats Defendant had made to kill her and her new boyfriend, the
threat he had made to damage her car after she took his belongings to his workplace,
and because Defendant had left a number of threatening letters in Tamisha’s mailbox
and had made a threatening phone call to Tamisha’s father, Tamisha obtained a TRO
the following day.
{5} 	On the day Tamisha obtained the TRO, but before Defendant was served,
Tamisha pulled into the parking lot of her apartment complex and saw Defendant
sitting in a chair holding “Ninja-style” knives that he had recently purchased. Fearing
for her safety, Tamisha quickly backed out of the parking lot, called 911, and circled
the block until the police arrived. 	When the police arrived and began talking to
Defendant, Defendant stated that he was there to “put the fear of God” into Tamisha

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for what she had done to him and that he could accomplish this in three ways: by
letting it go, by calling his “homies” from Arkansas to help him out, or by taking care
of it himself using the Ninja skills he had studied in Japan and intimidation methods
he had learned as an ex-felon. While Defendant was talking to Officer Guinn, the
officer who had responded to Tamisha’s 911 call, another officer arrived and served
Defendant with the TRO Tamisha had obtained earlier in the day. 	Officer Guinn
explained the seriousness of the TRO to Defendant, and Defendant acknowledged that
he understood the consequences that would arise from a violation of the order. Before
Officer Guinn took Defendant back to his residence, however, Defendant stated that
a piece of paper was not going to stop him from inflicting pain and fear on Tamisha.
{6} 	Following this incident, Tamisha, who worked a night shift, went to work.
When she returned home the next morning, she found a copy of the TRO in her door
with a handwritten message stating, “It ain’t over, [b]itch, I want to see your man[;]
[w]here he at?” Tamisha recognized the handwriting as Defendant’s, immediately
became concerned for her safety, and called the police. Officer Jackson responded to
the call and began investigating the TRO violation. Officer Jackson later met with
Officer Guinn, and the two officers went to Defendant’s residence to determine if he
had written the threatening message on the TRO. 	After a brief investigation,

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Defendant was arrested for violating the TRO. After his arrest, however, the officers
determined that Defendant had violated Section 30-3A-3.1, and the State charged
Defendant with aggravated stalking due to the pattern of threatening behavior he had
engaged in and his threatening conduct in violation of the TRO.
II. 	DISCUSSION
A. 	The Aggravated Stalking Statute
{7} 	At trial, after the State rested its case, Defendant argued that the State had
presented insufficient evidence to support a conviction for aggravated stalking
because he had engaged in only one instance of threatening conduct after he was
served with the TRO, and Section 30-3A-3.1 requires that there be a pattern of
conduct after the TRO is served. The trial court disagreed and concluded that Section
30-3A-3.1 requires only one threatening act following the issuance of a TRO. 	On
appeal, Defendant makes the same argument that he made in the trial court.
1. 	Standard of Review
{8} 	Interpretation of a statute is a question of law that we review de novo. State v.
Davis, 2007-NMCA-022, ¶ 6, 141 N.M. 205, 152 P.3d 848. “Our ultimate goal in
statutory construction is to ascertain and give effect to the intent of the Legislature.”
State v. Smith, 2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022 (internal quotation

6
marks and citation omitted). 	To reach this goal, we begin “by looking first to the
words chosen by the Legislature and the plain meaning of the Legislature’s language.”
State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064 (internal quotation
marks and citation omitted). “When a statute contains language which is clear and
unambiguous, we must give effect to that language and refrain from further statutory
interpretation.” State v. Johnson, 2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233
(internal quotation marks and citation omitted).
2. 	The Aggravated Stalking Statute Requires Only One Act in Furtherance
of a Pattern of Stalking
{9} 	Defendant was charged with and convicted of aggravated stalking, a fourth
degree felony, pursuant to the Harassment and Stalking Act (the Act). NMSA 1978,
§§ 30-3A-1 to -4 (1997).
A. 	Aggravated stalking consists of stalking perpetrated by a
person:
(1) 	who knowingly violates a permanent or temporary
order of protection issued by a court, except that mutual violations of
such orders may constitute a defense to aggravated stalking;
(2) 	in violation of a court order setting conditions of
release and bond;
(3) 	when the person is in possession of a deadly weapon; or
(4) 	when the victim is less than sixteen years of age.

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§ 30-3A-3.1(A)(1)-(4). Stalking is defined as
knowingly pursuing a pattern of conduct that would cause a reasonable
person to feel frightened, intimidated or threatened. The alleged stalker
must intend to place another person in reasonable apprehension of death,
bodily harm, sexual assault, confinement or restraint or the alleged
stalker must intend to cause a reasonable person to fear for his safety or
the safety of a household member. 	In furtherance of the stalking, the
alleged stalker must commit one or more of the following acts on more
than one occasion:
(1) 	following another person, in a place other than the
residence of the alleged stalker;
(2) 	placing another person under surveillance by being
present outside that person’s residence, school, workplace or motor
vehicle or any other place frequented by that person, other than the
residence of the alleged stalker; or
(3) 	harassing another person.
§ 30-3A-3(A)(1)-(3). Defendant’s aggravated stalking conviction was based on his
violation of Section 30-3A-3.1(A)(1), stalking perpetrated by a person who knowingly
violates a temporary order of protection.
{10} 	Our Legislature first enacted the Act in 1993. 1993 N.M. Laws, ch. 86, § 2.
The 1993 Act criminalized stalking but made the crime a misdemeanor. Id. It was
only when an offender was convicted of a third stalking offense that the crime
escalated to a fourth degree felony. 1993 N.M. Laws, ch. 86, § 3(C). In 1997, the
Legislature repealed the 1993 Act and enacted the current Act. 	1997 N.M. Laws,

8
ch. 10. The new Act made a second and subsequent conviction a fourth degree felony
and created the new crime of aggravated stalking, also a fourth degree felony. § 30-
3A-3(C). Thus, the modifications imposed a harsher punishment upon those offenders
who posed a significant danger to their victims because of repeat offenses, the age of
the victim, the presence of a deadly weapon, or the offender’s disregard of a court
order or a court sanction. See § 30-3A-3.1. By changing the penalty for an offender’s
second conviction from a misdemeanor to a felony, for example, the Legislature
ensured that an individual who has already been convicted of stalking receives a
harsher punishment when he or she ignores the sanctions imposed by the first offense
and continues to stalk a victim. Similarly, the Legislature imposed a harsher penalty
when a stalker violates a TRO or a court order because a stalker who ignores such an
order ostensibly poses a more serious threat to his or her victim. Having already been
warned that his or her conduct is prohibited, an individual who continues to stalk
disregards the rule of law and poses a significant threat to the safety of his or her
victim.
{11} 	Despite the Legislature’s intent to provide greater protection to stalking victims
who have obtained a TRO, Defendant argues that the plain language of the statute
requires the State to prove that there was a pattern of threatening conduct after the

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TRO was served. Under Defendant’s interpretation of the statute, an individual would
be charged with misdemeanor stalking for any threatening conduct that occurred prior
to the issuance of a TRO and could only be charged with aggravated stalking if a new
pattern of conduct occurred after the TRO has been issued. 	In support of this
contention, Defendant argues that because there is a separate offense for a single
violation of a protective order, see NMSA 1978, § 40-13-6(F) (2008) (establishing
that a single violation of a protective order is a misdemeanor offense), the Legislature
must have intended that there be multiple violations of a protective order before an
aggravated stalking charge can be brought.
{12} 	We are not persuaded. 	As the State points out, it is possible to violate a
restraining order in a manner that would not satisfy the requirements of the stalking
statute. If, for example, Defendant had violated the TRO by telephoning Tamisha in
a non-threatening manner, he could have been charged with violating the restraining
order but not with stalking because the definition of stalking requires behavior that
causes a reasonable person to feel frightened, intimidated, or threatened, and the
stalker must intend to make the victim fear for his or her safety or the safety of a
family member. § 30-3A-3. Where, as here, the violation of the restraining order is
done in a threatening manner, is intended to place the victim in fear, and is a part of

10
an established pattern of stalking behavior, then aggravated stalking charges may be
proper.
{13} 	In addition, under Defendant’s interpretation of the aggravated stalking statute,
an individual who engages in a pattern of threatening behavior and then is restrained
by a TRO could only be charged with misdemeanor stalking for the pattern of conduct
that occurred prior to the TRO, a misdemeanor violation of the TRO for the first,
second, and possibly third violations of the TRO, and then, only if the TRO violations
occurred with enough frequency to be considered a pattern, a charge of aggravated
stalking could be brought. As the State points out, this interpretation would create an
arbitrary break in an otherwise continuous pattern of threatening behavior and would
frustrate the legislative purpose of providing greater protection to victims who obtain
TROs against their stalkers. 	Nothing in Section 30-3A-3.1 supports Defendant’s
interpretation.
{14} 	When the statute is considered as a whole and Defendant’s interpretation is
applied to the other aggravating factors, the incongruity of Defendant’s argument
becomes apparent. The third aggravating factor in the statute is “stalking perpetrated
by a person . . . when the person is in possession of a deadly weapon.” § 30-3A-3.1.
We have interpreted this to require not only that the stalker be in possession of a

11
deadly weapon, but also that the stalker intended to use the deadly weapon. See State
v. Anderson, 2001-NMCA-027, ¶ 32, 130 N.M. 295, 24 P.3d 327. Under Defendant’s
interpretation of the statute, an individual could not be charged with aggravated
stalking unless he or she engaged in stalking behavior while carrying a deadly weapon
with the intent to use it against the victim on a sufficient number of occasions to
establish a pattern of conduct. The Legislature could not have intended to allow a
stalker to repeatedly subject a victim to such unreasonable risk. Thus, while a pattern
of conduct is required to establish that stalking has occurred, the crime charged may
be escalated to aggravated stalking as soon as one of the aggravating factors occurs.
{15} 	The out-of-state authority cited by Defendant does not persuade us to reach a
different conclusion. Vazquez v. State, 953 So. 2d 569 (Fla. Dist. Ct. App. 2007), is
inapplicable to our analysis because the plain language of Florida’s aggravated
stalking statute requires that an offender repeatedly engage in conduct in violation of
a court order. 	Fla. Stat. Ann. § 784.048(4) (West 2008) (providing harsher
punishment for any person who, “after an injunction for protection . . . repeatedly
follows, harasses, or cyberstalks another person” (emphasis added)). In the California
case Defendant cites, People v. McClelland, 49 Cal. Rptr. 2d 587, 590-91 (Ct. App.
1996), the defendant had made numerous threats to his victim after being served with

12
a TRO, and the court therefore did not address the issue before us today. 	Thus,
McClelland provides no guidance in our resolution of this case. 	See Fernandez v.
Farmers Ins. Co., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (noting that cases are
not authority for propositions not considered).
{16} 	It is undisputed that Defendant engaged in a pattern of harassing conduct
sufficient to charge him with stalking and that Defendant made an additional threat
to Tamisha after being served with a TRO that specifically prohibited the conduct in
which he had been engaging. We therefore affirm the trial court’s determination that
the Act applied to Defendant’s conduct. Because of our holding, we do not address
Defendant’s argument that under his interpretation of the statute there was insufficient
conduct following the issuance of the restraining order to support his conviction.
3. 	The Aggravated Stalking Statute is Not Unconstitutionally Vague
{17} 	Defendant next argues that our interpretation of the aggravated stalking statute
renders the statute unconstitutionally vague. 	We review a vagueness challenge de
novo “in light of the facts of the case and the conduct which is prohibited by the
statute.” 	State v. Duran, 1998-NMCA-153, ¶ 31, 126 N.M. 60, 966 P.2d 768.
Defendant “[can]not succeed if the statute clearly applied to his conduct” and, because
there is a strong presumption of constitutionality underlying each legislative

13
enactment, Defendant “has the burden of proving [the] statute is unconstitutional
beyond all reasonable doubt.” 	State v. Laguna, 1999-NMCA-152, ¶ 24, 128 N.M.
345, 992 P.2d 896 (citation omitted).
{18} 	There are two ways in which Defendant can meet this burden. He can either
demonstrate that the statute fails to “allow[] individuals of ordinary intelligence a fair
opportunity to determine whether their conduct is prohibited,” or he can demonstrate
that the “statute permits police officers, prosecutors, judges, or juries to engage in
arbitrary and discriminatory enforcement of the statute, which occurs because the
statute has no standards or guidelines and therefore allows, if not encourages,
subjective and ad hoc application.” 	Id. ¶¶ 25-26. 	Defendant argues that our
interpretation of the statute is unconstitutional under both prongs of the vagueness
test.
{19} 	Defendant first argues that because the majority of his actions constituting a
pattern of stalking conduct occurred prior to the issuance of the TRO, he was not on
notice that his actions might constitute an offense as serious as a felony. Defendant’s
argument is without merit. 	A person of ordinary intelligence reading the Act can
easily understand that engaging in a pattern of threatening conduct may result in a
charge of misdemeanor stalking under Section 30-3A-3. 	Such a person reading

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Section 30-3A-3.1 would further understand that continuing such conduct after being
ordered by a court to stay away from the victim may result in a charge of aggravated
stalking and increased criminal penalties.
{20} 	Defendant next argues that the aggravated stalking statute is unconstitutionally
vague because it can be applied in an ad hoc, abitrary manner. 	That the State had
some discretion to charge Defendant with the felony crime he committed or a lesser
offense such as misdemeanor stalking or a mere violation of the restraining order does
not render the statute unconstitutionally vague. In order to fall within the arbitrary
and discriminatory prong of the vagueness test, the statute must have “no standards
or guidelines and therefore allow[], if not encourage[], subjective and ad hoc
application.” Laguna, 1999-NMCA-152, ¶ 26. In Coates v. City of Cincinnati, 402
U.S. 611, 614 (1971), for example, the United States Supreme Court held that a statute
was unconstitutionally vague because it criminalized conduct that “annoyed” police
officers or passers-by in Cincinnati. The Court held that not only did this statute fail
to put individuals on notice of what conduct would annoy a police officer, but it also
gave the police arbitrary discretion to charge an individual with a violation of the
statute using a vague and subjective standard. See id.
{21} 	Unlike the arbitrary discretion given to police officers and prosecutors

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condemned in Coates, the aggravated stalking statute has clear guidelines regarding
what circumstances will escalate the misdemeanor crime to a felony offense. 	The
prosecutor’s decision to charge Defendant with aggravated stalking did not require
any arbitrary discretion. Instead, the prosecutor applied the law as stated in the Act
to the conduct of Defendant and determined that Defendant had engaged in a pattern
of threatening behavior directed at Tamisha, had continued that threatening conduct
after being ordered by the court to stop, and had therefore committed aggravated
stalking.
B. 	Alleged Miranda Violations
{22} 	Defendant next argues that certain statements he made to the police should have
been suppressed because he was not given Miranda warnings before he made the
statements. 	On the night that Defendant was arrested, Officer Guinn and Officer
Jackson went to look for Defendant at his apartment but were unable to locate him.
Because they also needed to issue a citation to one of Defendant’s roommates for
marijuana possession, however, the two officers remained in the area for about an
hour discussing the situation, issuing the citations, and filling out evidence receipts.
The two police vehicles were parked on the street about fifty yards from Defendant’s
apartment. 	While the officers were parked, Defendant arrived in a vehicle and

16
stopped. 	Defendant got out of that vehicle, walked the fifty yards to the police
officers, and yelled out that he understood that they were looking for him. 	The
officers began to talk with Defendant about the reason they were looking for him, and
Defendant made a number of incriminating statements regarding the TRO violation
and the threats he had made to Tamisha. Defendant made an additional incriminating
statement after his arrest while he was being booked. It is undisputed that Defendant
was not read his Miranda rights at any time during his encounters with the officers.
{23} 	Miranda warnings are intended to prevent situations where “the circumstances
surrounding the asking of a question by law enforcement are so inherently coercive
that any answer” given by a defendant is deemed to be compelled and not the result
of the defendant’s free will. State v. Javier M., 2001-NMSC-030, ¶ 14, 131 N.M. 1,
33 P.3d 1. “The standard of review for suppression rulings is whether the law was
correctly applied to the facts, viewing them in a manner most favorable to the
prevailing party.” State v. Harbison, 2007-NMSC-016, ¶ 8, 141 N.M. 392, 156 P.3d
30 (internal quotation marks and citation omitted). 	While we apply a deferential
standard to the trial court’s findings of fact, see State v. Lopez, 2005-NMSC-018, ¶ 9,
138 N.M. 9, 116 P.3d 80, “[d]etermining whether or not a police interview constitutes
a custodial interrogation requires the application of law to the facts,” and we therefore

17
apply de novo review of the trial court’s ruling. 	State v. Nieto, 2000-NMSC-031,
¶ 19, 129 N.M. 688, 12 P.3d 442.
{24} 	The suppression of an incriminating statement made by a defendant to a police
officer “is only required when the statements are the product of a custodial
interrogation.” State v. Fekete, 120 N.M. 290, 300, 901 P.2d 708, 718 (1995). Thus,
two separate circumstances must exist before Miranda warnings are required—the
defendant must be in custody and there must be an interrogation.
{25} 	Defendant sought to suppress statements he made on two separate occasions,
each requiring us to analyze different elements of the custodial interrogation
requirement. 	The first set of statements Defendant sought to suppress was made
before he was arrested and clearly involved interrogation, but the trial court
determined that Defendant was not in custody. The second statement was made after
Defendant’s arrest while he was clearly in custody, but the trial court held that
Defendant’s statement was not made in response to an interrogation. Because of the
distinct factual differences between the two sets of statements Defendant made, we
address them separately.
1. 	Pre-Arrest Statements
{26} 	There is no dispute that Officers Guinn and Jackson questioned Defendant

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outside of his apartment prior to his arrest. 	Thus, our inquiry focuses solely on
whether Defendant was in custody such that Miranda warnings were required prior
to his questioning. 	Whether or not an individual is in custody depends on “how a
reasonable man in the suspect’s position would have understood his situation,” Fekete,
120 N.M. at 300, 901 P.2d at 718 (internal quotation marks and citation omitted), and
not on the “subjective perception of any of the members to the interview.” Nieto,
2000-NMSC-031, ¶ 20. An interview is custodial and therefore subject to mandatory
Miranda warnings if there is a “formal arrest or restraint on freedom of movement of
the degree associated with a formal arrest.” Id. (internal quotation marks and citations
omitted). However, the questioning of an individual during an investigatory detention
instigated by an officer’s reasonable belief that the individual has engaged in criminal
activity is generally not considered a custodial interrogation subject to Miranda
requirements. 	Javier M., 2001-NMSC-030, ¶19. 	But see State v. Wilson, 2007-
NMCA-111, ¶¶ 18, 19, 142 N.M. 737, 169 P.3d 1184 (noting that in some situations,
such as when an officer uses handcuffs, puts the suspect in a police vehicle, or uses
force, an investigatory detention can become the equivalent of custody such that the
Miranda warnings are required). In addition, the fact that an officer has focused his
investigation on the defendant at the time of questioning does not necessitate Miranda

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warnings. State v. Swise, 100 N.M. 256, 258, 669 P.2d 732, 734 (1983).
{27} 	Determining whether an individual is in custody for purposes of Miranda
requires a fact-specific analysis of the circumstances in which the questioning took
place. In State v. Munoz, for example, our Supreme Court held that a suspect was not
in custody where he was questioned for approximately one hour and forty minutes by
FBI agents in the back of an FBI vehicle parked a mile or so from the suspect’s house.
1998-NMSC-048, ¶¶ 39, 42-43, 126 N.M. 535, 972 P.2d 847. The individual was a
prime suspect in a murder investigation and the agents had picked him up at his home
and transported him to the location where he was questioned and ultimately confessed
to stabbing his victim multiple times in the neck. Id. ¶¶ 3-6, 11. Despite the length
and location of the questioning, the Court explained that there was no evidence that
the suspect’s freedom had been restrained in any way that could be associated with a
formal arrest. Id. ¶ 43. He had voluntarily accompanied the agents after being told
that he did not have to go with them, he was not handcuffed or searched, the car doors
were not locked during the questioning, and the car was parked along a busy street
during daylight. Id. ¶¶ 43-44
{28} 	In contrast, this Court held that a suspect was in custody despite not being
formally under arrest where a police officer ordered the suspect out of his vehicle,

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forcibly placed handcuffs on him in a manner that caused him to drop to his knees,
and then questioned the suspect in the back of the officer’s vehicle. 	Wilson, 2007-
NMCA-111, ¶ 35. We noted that a reasonable person in the suspect’s position would
have believed “that he was restrained to the degree associated with a formal arrest.”
Id.
{29} 	In the present case, we cannot conclude that a reasonable person in Defendant’s
position would have believed that he was subject to the degree of restraint associated
with a formal arrest. While Officers Guinn and Jackson were parked on the street in
front of Defendant’s apartment, Defendant pulled up in a vehicle and, without any
provocation, got out of the vehicle and voluntarily walked at least fifty yards to the
location of the officers. He then called out that he heard they were looking for him
and approached the officers. Because of Officer Guinn’s knowledge that Defendant
carried Ninja knives, he frisked Defendant for safety purposes, but Defendant was not
restrained in any manner. Defendant stayed a “safe distance” away from the officers
at all times, and the officers questioned him for approximately twenty minutes.
{30} 	The circumstances of Defendant’s questioning are similar to but far less
“custodial” than the facts our Supreme Court found did not constitute custody in
Munoz. In addition, unlike the defendant in Wilson, who was forcibly handcuffed and

21
interrogated in the back of police cruiser, the officers did not use any force on
Defendant nor did they handcuff him during the questioning. Thus, we conclude that
a reasonable person in Defendant’s position would not have believed that he was in
custody.
{31} 	Defendant contends that because he had been warned the night before that he
would be arrested if he violated the TRO, he knew that his arrest was imminent and
was therefore in custody when the officers began to question him about the TRO
violation. 	Thus, Defendant argues that because he broke the law and because the
officers questioned him about that violation, he was in custody for purposes of a
Miranda analysis. This argument is without merit. We do not consider the subjective
beliefs of the parties to the interview. Nieto, 2000-NMSC-031, ¶ 20. Thus, any belief
that Defendant may have had regarding whether he would be arrested does not affect
our conclusion that Defendant was not in custody and that Miranda warnings were not
required.
2. 	Post-Arrest Statement
{32} 	Following his arrest, Defendant was transported to the police station for
booking. During booking, Defendant became extremely upset and agitated and started
cursing about Tamisha and what she had done to him. 	Officer Jackson told

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Defendant, “you need to calm down, you need to forget about her, you need to let her
go.” In response to this statement, Defendant told Officer Jackson, “you’re right, I
should just let her go . . . because if I stick around, the next time you’ll be
fingerprinting me, it’ll be for murder.” Because Defendant was being booked into jail
at the time he made this statement, there is no dispute that he was in custody.
However, because Officer Jackson did not ask Defendant a question, the parties
disagree as to whether Defendant was being interrogated at the time that he made the
statement.
{33} 	Because 	the 	primary 	purpose 	of 	Miranda 	warnings 	is 	to 	prevent 	the
introduction of compelled, involuntary incriminating statements, interrogation “must
reflect a measure of compulsion above and beyond that inherent in custody itself,” and
a statement given freely and voluntarily without any compelling influences does not
violate Miranda. 	Rhode Island v. Innis, 446 U.S. 291, 299-300 (1980). 	An
“[i]nterrogation occurs when an officer subjects an individual to questioning or
circumstances which the officer knows or should know are reasonably likely to elicit
incriminating responses.” 	Fekete, 120 N.M. at 300, 901 P.2d at 718 (internal
quotation marks and citation omitted). Miranda does not apply “in those situations
where [a defendant] volunteers statements” either by making a statement “which the

23
police did not attempt to elicit” or by making a statement that is “unresponsive to the
questions asked.” Id.
{34} 	Defendant argues that Officer Jackson knew that Defendant would make an
incriminating statement when he told Defendant to forget about Tamisha because
Officer Jackson had told Defendant the same thing prior to the arrest and Defendant
had made similar incriminating statements. 	Thus, Defendant argues that “Officer
Jackson was aware that almost any statement to [Defendant] about his relationship
with [Tamisha] would elicit a veritable wave of incriminating information.”
{35} 	We assume, without deciding, that because Defendant had previously made
incriminating statements when he was told to forget about Tamisha, Officer Jackson
should have known that telling Defendant to calm down would elicit an incriminating
response. 	Under this assumption, the trial court erred in allowing the testimony
regarding Defendant’s statement that he would be fingerprinted for murder if he did
not forget about Tamisha. 	However, based on the evidence presented at trial, this
error was harmless. “An error is harmless if the [s]tate can establish . . . beyond a
reasonable doubt” that there is no reasonable possibility that the objectionable
evidence might have contributed to the defendant’s conviction. 	State v. Walters,
2007-NMSC-050, ¶ 25, 142 N.M. 644, 168 P.3d 1068 (internal quotation marks and

24
citations omitted). In determining whether the state has met this burden, we examine
several 	factors 	including 	“the 	importance 	of 	the 	witness’ 	testimony 	in 	the
prosecution’s case, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and . . . the overall
strength of the prosecution’s case.” 	Id. ¶ 26 (internal quotation marks and citation
omitted).
{36} 	Prior to the testimony regarding Defendant’s statement that he would be
fingerprinted for murder, a substantial amount of incriminating evidence had already
been presented. 	Tamisha and her friends testified that Defendant had threatened
Tamisha and her new boyfriend and that he had engaged in a pattern of threatening
conduct directed at Tamisha. 	Officer Guinn testified that Defendant had said he
would make Tamisha feel his pain and that he was armed with Ninja-style knives and
had trained extensively in Japan as a Ninja. Officer Jackson testified that Defendant
had threatened that he could “take care” of Tamisha by calling his homies or by taking
care of her himself using his Ninja training. In addition, Defendant himself admitted
to all of the essential elements of aggravated stalking. He did not dispute that he had
engaged in a pattern of threatening conduct prior to the issuance of the TRO, nor did

25
he dispute that he wrote a threatening message on his copy of the TRO and then
placed it in Tamisha’s door. Instead, Defendant merely argued that all of his threats
were empty and that he never intended to follow through with any of them. Thus,
Defendant’s statement that he would be booked for murder was merely a cumulative
statement that repeated his earlier undisputed threats to harm Tamisha. See Fekete,
120 N.M. at 301, 901 P.2d at 719 (noting that even if an officer’s question was an
interrogation, the statements made by the defendant merely repeated what he had
stated earlier and their admission was therefore harmless error).
{37} 	We therefore cannot conclude that Defendant’s statement influenced the jury’s
decision to convict Defendant for aggravated stalking. All of the evidence supporting
Defendant’s conviction was uncontested and had already been established before the
statement was erroneously admitted. 	Defendant was charged and convicted of
aggravated stalking, not attempted murder, and he never disputed that he made the
threats that formed the basis of his conviction. 	Thus, we hold that even if the
admission of Defendant’s post-arrest statement was error, the error was harmless.
C. 	Rule 11-410 NMRA Bars the Admission of Evidence That a Defendant
Pleaded Guilty or Attempted to Plead Guilty but Does Not Require
Reversal
{38} 	At his arraignment, Defendant attempted to plead guilty to the charges against

26
him and told the magistrate court that everything Tamisha said about him was true.
After Defendant made these statements, the magistrate court informed him that he was
being charged with a felony and that the court did not have jurisdiction to accept a
guilty plea in a felony case. At trial, the State called a witness who had been present
at Defendant’s arraignment and who testified regarding the statements Defendant
made when he attempted to plead guilty. Defendant objected to the admission of this
evidence on the grounds that it violated his due process rights, that the plea was
involuntary, and that such evidence was just generally inadmissible.
{39} 	Defendant now argues that the admission of his attempt to plead guilty violated
Rule 11-410, which provides that
[e]vidence of a plea of guilty or an admission in a children’s court
proceeding, later withdrawn, or a plea of no contest, or of an offer to
plead guilty or no contest to the crime charged or any other crime, or of
statements made in connection with any of the foregoing pleas or offers,
is not admissible in any civil or criminal proceeding against the person
who made the plea or offer.
Because Defendant raises Rule 11-410 for the first time on appeal, the State argues
that Defendant failed to adequately preserve the issue. We disagree. Although none
of defense counsel’s objections specifically referenced Rule 11-410, defense counsel
alerted the court on multiple occasions to the general notion that guilty pleas are
inadmissible. See State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d

27
1280 (explaining that in order for an issue to be preserved for appeal, the defendant
must make a timely objection that specifically apprises the trial court of the nature of
the claimed error and invokes an intelligent ruling thereon). We therefore address the
merits of Defendant’s argument. See State v. Anderson, 116 N.M. 599, 601, 866 P.2d
327, 329 (1993) (noting that Rule 11-410 issue was preserved for appellate review
where defense counsel did not specify the rule in his objection because the trial
“court’s comments indicate[d] that it was adequately apprised of the application of the
rule”).
{40} 	Despite the language of Rule 11-410 barring evidence of a guilty plea, the State
argues that evidence of Defendant’s attempt to plead guilty and the related statements
are admissible under our Supreme Court’s decision in Anderson. There, the Court
held that Rule 11-410 applies only if a suspect “relied on the rule in deciding to break
silence, because the rule encourages cooperation only if the defendant relied on it.”
Anderson, 116 N.M. at 602-03, 866 P.2d at 330-31. While Anderson would seem to
suggest that the evidence of Defendant’s attempt to plead guilty was admissible since
he did not rely on the rule when he made his plea, the State’s reliance on this case is
misplaced.
{41} 	Rule 	11-410 	applies 	to 	two 	separate 	and 	distinct 	types 	of 	evidence:

28
(1) evidence of a plea of guilty that is later withdrawn and statements made in
connection with the plea, and (2) evidence of an offer to plead guilty and statements
made in connection with the offer. Anderson dealt exclusively with the second type
of evidence made inadmissible by Rule 11-410, offers to plead guilty. Anderson did
not consider the admissibility of an actual guilty plea and statements made in
connection with that plea. Here we are concerned only with the first type of guilty
plea evidence covered by Rule 11-410, the actual entry of a guilty plea. 	Thus,
Anderson does not apply to our analysis of Defendant’s appeal.
{42} 	Under Rule 11-410, “[i]f a plea is never entered or entered and then withdrawn,
at trial it is to appear as though the earlier plea . . . never took place. 	The slate is
wiped clean once plea negotiations fail or the defendant withdraws his plea.” State
v. Trujillo, 93 N.M. 724, 727, 605 P.2d 232, 235 (1980). When a plea is entered and
then withdrawn, Rule 11-410 makes any evidence of that plea inadmissible at trial.
See Standen v. State, 710 P.2d 718, 720 (Nev. 1985) (noting that a withdrawn guilty
plea is “deemed never to have existed and should not be used as evidence”); Toth v.
State, 297 So. 2d 53, 53 (Fla. Dist. Ct. App. 1974) (holding that a rule similar to Rule
11-410 absolutely bars the admission of evidence that a defendant pleaded guilty and
then withdrew the plea). While Defendant did not formally enter and then withdraw

29
his guilty plea, his attempt to enter a guilty plea and the magistrate’s rejection of that
plea for jurisdictional reasons constituted the functional equivalent of a formal plea
entry and withdrawal for purposes of Rule 11-410. Defendant believed that he was
formally pleading guilty to the charges against him. Had the court had jurisdiction to
accept the plea, Defendant would have had an opportunity to withdraw the plea, thus
making Rule 11-410 applicable. Thus, Rule 11-410 barred the admission of evidence
that Defendant had attempted to plead guilty, and the trial court erred by admitting the
testimony.
{43} 	However, we conclude that the error was harmless. As the dissent points out,
evidence of a defendant’s attempt to plead guilty is ordinarily inadmissible because,
among other reasons, it may compel a defendant to take the stand to explain to the jury
why he or she initially pleaded guilty and then later withdrew the plea and decided to
challenge the charges at trial. 	People v. Spitaleri, 173 N.E.2d 35, 37 (N.Y. 1961)
(noting that evidence of a withdrawn guilty plea “in effect forced [the defendant] to
take the stand”). Furthermore, admission of such evidence can be highly prejudicial
because “[i]t is also difficult to conceive a disclosure more apt to influence a jury than
the information that the accused had at one time [pleaded] guilty to the commission
of the crime with which he stands charged.” State v. Boone, 327 A.2d 661, 666 (N.J.

30
1974) (internal quotation marks and citation omitted). 	While we recognize the
prejudicial effect that the admission of a defendant’s attempt to plead guilty can have
on a criminal trial, we disagree with the dissent’s contention that “reversible error is
committed regardless of what the remaining evidence in the case may be” and that a
violation of rule 11-410 is not subject to a harmless error test.
{44} 	While the dissent correctly notes that the United States Supreme Court did not
apply a harmless error test in Kercheval v. United States, 274 U.S. 220, 225 (1927),
when it ruled that evidence of an attempt to plead guilty is inadmissible, we do not
believe that the Court’s failure to discuss the sufficiency of the remaining evidence
to sustain the conviction indicates that the Court intended to prohibit the use of a
harmless error test every time evidence of a guilty plea is improperly admitted. See
Fernandez v. Farmers Ins. Co. of Arizona, 115 N.M. 622, 627, 857 P.2d 22, 27 (1993)
(noting that cases are not authority for propositions not considered). In fact, contrary
to the dissent’s argument that a harmless error test cannot be applied under these
circumstances, a number of other jurisdictions that have considered this issue have
applied a harmless error test to the erroneous admission of guilty pleas. 	See, e.g,
United States v. Acosta-Ballardo, 8 F.3d 1532, 1536 (10th Cir. 1993) (applying
harmless error test to Rule 410 violation and concluding that error was harmless with

31
respect to the defendant’s conviction for a charge he admitted to in his testimony but
reversible with respect to a charge that required the jury to weigh the credibility of the
witnesses); United States v. Tesack, 538 F.2d 1068, 1070 (4th Cir. 1976) (holding that
due to the strength of the evidence against the defendant, “[i]f there was error in [the
admission of the withdrawn guilty plea], we find it entirely harmless”); Thessen v.
State, 454 P.2d 341, 350 (Alaska 1969) (concluding beyond a reasonable doubt that
admission of withdrawn guilty plea did not influence jury), superseded by statute as
stated in State v. Chaney, 477 P.2d 441 (Alaska 1970); State v. Thomson, 278 P.2d
142, 148 (Or. 1954) (en banc) (applying harmless error test to admission of guilty plea
evidence and concluding that due to conflicting evidence, reversal was required);
People v. Scheller, 39 Cal. Rptr. 3d 447, 455 (Ct. App. 2006) (holding that erroneous
admission of statements made in reliance on guilty plea was subject to the Chapman
v. California, 386 U.S. 18 (1967) harmless error test); State v. Simonson, 732 P.2d
689, 696 (Idaho Ct. App. 1987) (applying harmless error test to erroneous admission
of evidence that the defendant had pleaded guilty and concluding that error was not
harmless due to circumstantial nature of the prosecution’s case); United States v.
Doamarel, 567 F. Supp. 254, 262-63 (D. Del. 1983) (applying Chapman harmless
error test to wrongful admission of guilty plea evidence and concluding that error was

32
harmless due to limiting instruction and overwhelming evidence against the
defendant); United States v. Elizondo, 277 F. Supp. 2d 691, 703 (S.D. Tex. 2002)
(noting that “[t]he [c]ourt’s error in admitting [the d]efendant’s guilty plea and
conviction will not warrant a new trial if it is beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained” (internal quotation marks
and citation omitted)).
{45} 	In addition, the United States Supreme Court has explained that error can be
analyzed under a harmless error test when the case involves “error which occurred
during the presentation of the case to the jury, and which may therefore be
quantitatively assessed in the context of other evidence presented in order to
determine whether its admission was harmless beyond a reasonable doubt.” Arizona
v. Fulminante, 499 U.S. 279, 307-08 (1991). Thus, the harmless error test has been
applied to the admission of a defendant’s confession in violation of his constitutional
rights, Milton v. Wainwright, 407 U.S. 371, 376 (1972), the admission of a coerced
confession, Fulminante, 499 U.S. at 295, and the admission of an accomplice’s
statements in violation of the confrontation clause. State v. Alvarez-Lopez, 2004-
NMSC-030, ¶ 32, 136 N.M. 309, 98 P.3d 699 (applying harmless error test to the
erroneous admission of an accomplice’s confession). 	The erroneous admission of

33
evidence of a defendant’s attempted guilty plea, like the erroneous admission of a
coerced confession or a statement admitted in violation of the confrontation clause,
is a defect in the presentation of evidence to the jury and “may therefore be
quantitatively assessed in the context of other evidence presented in order to
determine 	whether 	its 	admission 	was 	harmless 	beyond 	a 	reasonable 	doubt.”
Fulminante, 499 U.S. at 307-08. 	Here, the erroneous admission of evidence that
Defendant attempted to plead guilty is not the type of error that affects the structure
of the trial and requires automatic reversal such as deprivation of the right to counsel,
trial before a biased judge, or the race-based exclusion of potential jurors. 	See
Fuliminante, 499 U.S. at 310 (discussing the types of cases that are not subject to
harmless error analysis because they affect the very structure of the trial).
{46} 	Because the erroneous admission of Defendant’s attempt to plead guilty could
touch upon various constitutional rights, we disagree with the dissent’s conclusion that
a violation of Rule 11-410 is not subject to the harmless error analysis stated in
Chapman. That test requires us to determine “whether there is a reasonable possibility
that the evidence complained of might have contributed to the conviction,” and we
“must be able to conclude beyond a reasonable doubt that the jury verdict would have
been the same absent the error.” State v. Johnson, 2004-NMSC-029, ¶ 9, 136 N.M.

34
348, 98 P.3d 998 (internal quotation marks, citations and alteration omitted). This
requires us to carefully consider “the error’s possible impact on th[e] evidence” and
“[i]f, at the end of that examination, we conclude there is a reasonable possibility the
evidence complained of might have contributed to the conviction, we must reverse.”
Id. ¶ 10. 	Applying that analysis, we cannot conclude that there is a reasonable
possibility that the admission of the evidence that Defendant attempted to plead guilty
affected the jury’s verdict in this case.
{47} 	Our Supreme Court in Johnson provided a framework for our analysis. That
case addressed whether a confrontation clause violation amounted to harmless error
and adopted a number of factors to consider. These factors include:
the importance of the witness’ testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s case.
Id. ¶ 11 (internal quotation marks and citation omitted). We believe that these factors
are useful in the context of the present issue involving the erroneous admission of an
attempted guilty plea.
{48} 	Our Supreme Court’s application of these factors in Johnson provides further
guidance. The Court determined that an erroneously admitted statement constituted

35
reversible, not harmless, error. Regarding the first factor, the statement “provided the
only direct evidence of guilt with respect to th[e] theory of armed robbery,” and there
was therefore “a reasonable possibility that its erroneous admission contributed to the
verdict.” Id. ¶ 32. With respect to a separate charge of accomplice liability, the Court
held that “[w]hile there is much other circumstantial evidence from which reasonable
inferences of [the d]efendant’s guilt might have been derived, [the erroneously
admitted] statement provides the direct evidence of [the d]efendant’s intent to commit
armed robbery that rendered such inferences unnecessary” and the “only direct
evidence that [the d]efendant was armed.” Id. ¶ 36. The Court therefore concluded
that the statement was “of central importance to the prosecution’s case.” 	Id.
Applying the second factor, the Court rejected the State’s argument that the evidence
was merely cumulative because “[t]o the extent the evidence corroborates, and
therefore strengthens, the prosecution’s evidence, it cannot be deemed ‘cumulative’
as we understand that term.” Id. ¶ 37. The Court explained that cumulative evidence
is additional evidence that supports a fact already established by existing evidence,
while corroborative evidence tends to confirm a point suggested by other evidence but
not already proved. Id. ¶ 39. Finally, the Court noted that the defendant’s testimony
contradicted the evidence that had been erroneously admitted and that the jury would

36
have had to make a credibility determination in favor of the erroneously admitted
evidence in order to disregard the defendant’s testimony and convict him. Id. ¶ 43.
Based on its analysis of these factors, the Court determined that it could not conclude
beyond a reasonable doubt that the evidence did not contribute to the defendant’s
conviction. Id.
{49} 	Similarly, in Elizondo, a case cited by the dissent, the court concluded that its
admission of evidence that a defendant had pleaded guilty was not harmless error
because “[t]he remaining evidence against [the d]efendant, though probably legally
sufficient to sustain a verdict, was not so strong that the [c]ourt can with any
confidence say that evidence of the guilty plea and conviction did not have a
substantial impact on the jury’s verdict.” 	277 F. Supp. 2d at 704. 	The court also
noted that the other evidence of the defendant’s knowledge, an essential element of
the crime charged, “was limited and circumstantial.” Id.
{50} 	In this case, in contrast to Johnson and Elizondo, we are able to conclude
beyond a reasonable doubt that the erroneous admission of Defendant’s attempted
guilty plea did not contribute to the jury’s verdict. 	Unlike the case against the
defendant in Johnson, the case against Defendant here was not comprised solely of
circumstantial evidence that the erroneously admitted evidence served to corroborate.

37
Instead, the State in this case offered direct evidence that Defendant had committed
aggravated stalking, including Tamisha’s eyewitness testimony that Defendant had
threatened her on multiple occasions and the similar eyewitness testimony of
Samantha and Hope regarding Defendant’s multiple threats toward Tamisha.
{51} 	In addition, Officer Guinn testified that Defendant stated that he was going to
make Tamisha “feel his pain,” that he was going to put the fear of God in her, and that
he had sat down in front of Tamisha’s residence after receiving the TRO in order to
“inflict[] pain” on her. Finally, Officer Jackson testified that Defendant admitted to
him that the night he received the TRO, Defendant had stopped by Tamisha’s house
and “left a note on her door” and had sat outside Tamisha's house “[t]o instill fear in
her.”
{52} 	Thus, at the time that the State’s witness testified that Defendant had attempted
to plead guilty, the jury had already heard an overwhelming amount of eyewitness
testimony proving that Defendant had engaged in a pattern of threatening behavior
directed at Tamisha. More importantly, the jury had already heard testimony from
Officers Jackson and Guinn that Defendant had admitted that he had done everything
that Tamisha had accused him of. 	The testimony that Defendant had attempted to
plead guilty and had stated that everything Tamisha had said about him was true

38
therefore merely repeated Defendant’s admissions of guilt that were already properly
before the jury. Consequently, the guilty plea evidence was truly cumulative evidence
that simply reiterated evidence already before the jury. 	The erroneously admitted
evidence was not, as the dissent argues, corroborative evidence that merely
strengthened the prosecution’s case. In addition, when Defendant took the stand in
his own defense, he did not offer any testimony that was inconsistent with his guilty
plea. 	Defendant did not deny that he had engaged in the pattern of threatening
conduct that gave rise to his aggravated stalking conviction; instead, Defendant
admitted that he had done everything Tamisha had accused him of and maintained that
he did not really intend to threaten or actually harm her. As a result, the State’s cross-
examination of Defendant was far from “devastating,” Dissent ¶ 54, because the State
simply re-emphasized evidence that had already been admitted through other
witnesses and that had nothing to do with the attempted guilty plea. 	Because the
erroneously 	admitted 	testimony 	was 	cumulative 	and 	was 	not 	central 	to 	the
prosecution’s case or contradicted by any other evidence in the record, we are able to
conclude beyond a reasonable doubt that the admission of Defendant’s attempted
guilty plea did not contribute to his conviction. 	We therefore hold that the error
caused by the admission of the testimony that Defendant attempted to plead guilty was

39
harmless.
{53} 	We further disagree with the dissent’s contention that the admission of
Defendant’s attempted guilty plea may have forced him to take the stand in violation
of his constitutional rights. 	Defendant never disputed the occurrence of the
threatening actions about which the eyewitnesses had testified. 	Instead, while
cross-examining the State’s witnesses, defense counsel sought only to show that
Defendant did not really intend to harm Tamisha. Because his defense was based on
his intentions when he threatened Tamisha, not whether he had actually threatened
her, we cannot conclude that the admission of the guilty plea forced Defendant to take
the stand in his own defense. The only way that Defendant could establish that he did
not mean that he would actually harm Tamisha when he threatened to harm her was
by testifying that his threats were empty. Without Defendant’s testimony, the case
would have rested on the State’s case, which overwhelmingly proved that Defendant
had engaged in a pattern of threatening behavior sufficient to find him guilty of
aggravated stalking. 	In light of this, it is unlikely that Defendant would have
contemplated a different defense theory even if the evidence of the attempted guilty
plea had not been admitted.
{54} 	Finally, the dissent argues that the State has failed to meet its burden of

40
showing that any error caused by the admission of the attempted guilty plea was
harmless beyond a reasonable doubt. While we agree that this is the State’s burden,
Chapman, 386 U.S. at 24; Johnson, 2004-NMSC-029, ¶ 9, we decline to reverse on
the technical basis of the State’s failure to argue harmless error. We have analyzed
the State’s violation of Rule 11-410 using the Chapman constitutional error test even
though Defendant did not argue on appeal that this violation rose to the level of
constitutional error. 	It would be patently unfair to require the State to address an
argument in its answer brief in response to an argument that was not raised by
Defendant. In addition, Chapman ultimately requires only that “the court must be able
to declare a belief that [the error] was harmless beyond a reasonable doubt.” 386 U.S.
at 24. Because we are able to reach this conclusion on our own review of the record,
we do not believe that the State’s failure to meet a burden that it was unaware had
been imposed on it requires us to rule in favor of Defendant. See State v. Romero,
2006-NMCA-045, ¶ 69, 139 N.M. 386, 133 P.3d 842 (applying harmless error review
where the state did not argue that error was harmless).
CONCLUSION
{55} 	For the foregoing reasons, we affirm Defendant’s conviction for aggravated
stalking.

41
{56} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
I CONCUR:
JAMES J. WECHSLER, Judge
MICHAEL E. VIGIL, Judge (concurring in part, dissenting in part).

42
Vigil, Judge (concurring in part, dissenting in part).
{57} 	I concur with the majority opinion except Part C in which it concludes that
improperly admitting evidence before the jury that Defendant attempted to plead
guilty did not constitute reversible error. For the reasons which follow, I respectfully
submit that Defendant is entitled to a new trial in which the improper evidence is
excluded from the jury’s consideration. Since the majority disagrees, I dissent.
FACTS
{58} 	On January 31, 2006, Officer Guinn arrested Defendant and booked him into
the Otero County Detention Center on a felony charge of aggravated stalking. Officer
Guinn noted that Defendant was to appear in court “when called upon.” Three days
later on February 3, 2006, Defendant was brought before the magistrate court for his
first appearance. 	Because a felony is not within the jurisdiction of the magistrate
court, at a first appearance the magistrate judge only advises the defendant of the
charge, the penalty provided, his rights, and sets the matter for a preliminary hearing.
Rule 6-501(A), (D) NMRA. “In actions not within magistrate trial jurisdiction, no
plea shall be entered.” Rule 6-302(A) NMRA. At Defendant’s first appearance the
magistrate judge noted that Defendant wanted an attorney, wanted to consult with
counsel, and wanted a trial by jury. Since Defendant was indigent and incarcerated,

43
it was ordered that a public defender represent Defendant.
{59} 	After he obtained counsel, Defendant entered a plea of not guilty, and a jury
trial was held in the district court on the felony charge. 	The State presented the
testimony of Tamisha, Tamisha’s friend Samantha, Officer Guinn, and Officer
Jackson and established the facts set forth in paragraphs 2-6 of the majority opinion.
Except to the extent raised by the Miranda issue addressed in Part B of the majority
opinion, Defendant does not challenge on appeal the testimony of these witnesses or
the facts established by their testimony.
{60} 	The State’s last witness at trial was Ms. Gilmore, a victim advocate with the
district attorney’s office. She testified that she attended Defendant’s first appearance
in the magistrate court. 	Defendant and whoever else was in jail were shown a
videotape which explained to the prisoners their rights. 	When the videotape was
played, no attorney was present to advise Defendant. After the video was played to
the group of prisoners, Ms. Gilmore said that the magistrate judge read the criminal
complaint to Defendant, and the magistrate judge asked Defendant to plead to the
charge. 	Ms. Gilmore testified that Defendant stated “he wanted to plead guilty.”
Defense counsel immediately objected and, at a bench conference, argued that the
testimony was highly improper and related to an attempt to plead guilty without the

44
presence of counsel. Defendant moved for a mistrial. Arguing that the evidence was
admissible, the prosecutor said, “The proffer is that . . . Defendant began to talk about
I just want to go to Arkansas, everything that the victim said is true, I just want to
plead guilty. We believe that’s an admission of guilt. It’s—it’s admissible.” After
further argument, the district court ruled that the prosecutor could lay a foundation for
admission of the evidence.
{61} 	Ms. Gilmore then testified that the magistrate court utilizes a video arraignment
procedure. 	Ms. Gilmore said that the practice is for a videotape to be played
explaining to the prisoners their rights and that if they have a felony charge, this
constitutes their first appearance and if they have a misdemeanor charge, this is their
arraignment. 	After the ten-minute video is played, the magistrate judge calls each
prisoner one at a time and they sit in a chair and he talks to them through a video
monitor. While seated in the chair, the defendant is able to see the judge on a video
monitor, and the judge is likewise able to see the defendant on a video monitor from
his location. There is a third video monitor in the jail which is pointed at the audience
so the public can see and hear the entire process. The magistrate judge then asks each
defendant whether he observed and understood the videotape. On the basis of this
testimony and over Defendant’s objection, the district court ruled that the State

45
established a foundation to admit Ms. Gilmore’s testimony.
{62} 	Ms. Gilmore then told the jury that Defendant acknowledged to the magistrate
judge that he understood the rights explained by the videotape and said he wanted to
plead guilty. The magistrate judge advised Defendant he could not accept a guilty
plea because he was charged with a felony, and Ms. Gilmore said that Defendant
replied, “[b]ut I’m not denying anything that she has said. I just want to go back to
Arkansas.”
{63} 	Defendant testified in his own defense. He began his testimony by explaining
why he had tried to plead guilty in the magistrate court:
Well, in that particular occasion, with everything I heard from
everybody in New Mexico in jail, if I pleaded guilty, then my trial would
go faster. And that’s basically all I really wanted was for my trial to go
faster. Not knowing anybody in New Mexico and not having any family
and friends, I just wanted to get back home.
Defendant then denied committing the acts Tamisha accused him of. Explaining why
he had said in the magistrate court that he agreed with what Tamisha was saying,
Defendant testified, “[b]ecause as I said earlier, I just didn’t want to fight about this
any more. I felt like my chances of winning this case against a female this county
knows [were not good], so my best bet would be to plead guilty, get this over with,
and get back home as soon as possible.”

46
{64} 	Not surprisingly, the prosecutor’s cross examination of Defendant was detailed
and devastating.
Q. 	Do you recall being arraigned at the video arraignment over
in Magistrate Court? 	You’re in jail, video machine is set up; is that
correct?
A. 	Yes, sir.
Q. 	And you remember you had to watch a videotape; is that
correct?
A. 	Yes, sir.
Q. 	And the Judge came on the screen and called you up to the
chair and asked you are you Christopher Smile? You know that?
A. 	Yes, sir.
Q. 	You remember that?
A. 	Yes, sir.
Q. 	Okay. 	Do you remember the Judge asking you if you
watched the videotape and understood it?
A. 	Yes, sir.
Q. 	And you remember saying that yes, you watched it, and you
understood it?
A. 	Yes, sir.
Q. 	And do you remember the Judge asking you how do you
plead, and you said I plead guilty. Is that correct?

47
A. 	Yes, sir.
Q. 	And do you recall telling the Judge or the Judge telling you
he couldn’t take the guilty plea because it was a felony?
A. 	Yes.
Q. 	And do you remember saying at that time everything that
Tamisha said was true?
A. 	Yes, sir.
Q. 	I just want to plead guilty and go back to Arkansas. Is that
what you said?
A. 	Yes, sir.
Q. 	Now, at the time of that arraignment, you were being
arraigned on aggravated stalking in that courtroom; isn’t that true?
A. 	Yes, sir.
Q. 	And you said everything she said about aggravated stalking
was true, correct?
A. 	I never specified what she said was true, never said
everything she said was true, I didn’t specify what.
Q. 	Well, you were being arraigned for aggravated stalking; do
you agree with that?
A. 	That doesn’t mean that I was agreeing to the fact that—I
was agreeing to the fact that she charged me with aggravated stalking.
Q. 	Well, let’s just try to agree to disagree on some stuff. This
was on date of arraignment, you already said you agreed to—you tried

48
to plead guilty. Do you agree that you said, “Everything that Tamisha
said was true”?
A. 	Yeah.
Q. 	Now, when those questions are—you understand that you
were being arraigned for aggravated stalking, is that correct?
A. 	Yes, sir.
Q. 	Do you understand and recognize that the Judge read you
the elements of the crime of aggravated stalking?
A. 	Yeah. 	(Inaudible) 	evidence 	of 	what 	it 	came 	to 	be
aggravated stalking, and I’m pretty sure I would be kind of upset about
being locked up for six months over it.
Q. 	And do you understand—or do you agree that he told you
the—well, I won’t go into that.
But you knew that there would be repercussions for you
saying that; is that fair enough?
A. 	Yes, sir.
Q. 	Okay. 	Now, in your cross—or direct examination with
[your counsel], you said—tried to make an excuse for this. You said—
basically, you said everything she said was true only because you wanted
to magically get out of jail, go take care of your baby girl in Arkansas.
Is that what you said?
A. 	First of all, it wasn’t an excuse, it was a true statement.
Q. 	Okay. So when you talked to [the] Judge . . . and you said
everything Tamisha said was true, are you saying that you were lying to
a Judge?

49
A. 	No, I wasn’t lying to anybody.
Q. 	Well, was this a true statement, everything—
A. 	Yes, it was true.
* 	* 	*
Q. 	Mr. Smile, so what you’re saying now is when you said
everything Tamisha said was true, that is a true statement?
A. 	Yes, it is.
Q. 	So your statement earlier today with [your counsel on
direct] that that wasn’t true, was that a lie?
A. 	I never said it wasn’t true. 	The only thing I ever said
was—what I said and what the truth—because I wanted to go back home
to be with my child. That’s all I’ve been wanting for the last six months
was to see my daughter.
ANALYSIS
{65} 	I agree with the majority that Rule 11-410 of the Rules of Evidence was clearly
violated. 	See Majority Opinion ¶¶ 39-41. 	Rule 5-304(F) NMRA of the Rules of
Criminal Procedure was also violated. This rule is equally clear and unambiguous and
in almost the same language directs:
Evidence of a plea of guilty, later withdrawn . . . or of an offer to
plead guilty [or] no contest . . . to the crime charged or any other crime,
or of statements made in connection with any of the foregoing pleas or

50
offers, is not admissible in any civil or criminal proceeding against the
person who made the plea or offer.
Id.
{66} 	The fact that evidence of Defendant’s offer to plead guilty was admitted, as
opposed to evidence of an actual plea, makes no substantive difference, and the
majority agrees. Majority Opinion ¶ 42. Rules 11-410 and 5-304(F) equate offers to
plead guilty with actual guilty pleas. 	Moreover, the cases which have considered
whether such a distinction makes a difference have concluded it does not. See State
v. McGunn, 294 N.W. 208, 209 (Minn. 1940) (concluding that a conditional offer to
plead guilty to the court, which the court did not accept, is to be treated the same as
a withdrawn guilty plea); State v. Meyers, 12 S.W. 516, 519 (Mo. 1889) (holding that
evidence of an earlier rejected guilty plea was not admissible), overruled on other
grounds, Ex Parte Keet, 287 S.W. 463 (Mo. 1926); Dykes v. State, 372 S.W.2d 184,
186 (Tenn. 1963) (equating an offer to plead guilty with an actual plea that is
withdrawn); Dean v. State, 161 S.W. 974, 975 (Tex. Crim. App. 1913) (concluding
that an offer of the defendant’s counsel to plead guilty was not admissible).
{67} 	I first part company with the majority in its conclusion that the error in this case
is subject to a harmless error analysis. Majority Opinion ¶ 43. Because of the nature
of statements made to a judge in a judicial proceeding while pleading guilty or

51
offering to plead guilty, the erroneous admission of such statements into evidence is
not subject to a harmless error analysis.
{68} 	It is beyond debate that the best evidence of whether a competent accused
committed a violation of the criminal law is his own statement that he committed the
act with the requisite intent. This is exactly what a guilty plea is, and the probative
force of such evidence cannot be overlooked. When a defendant proceeds to trial, it
is on the basis of a “not guilty” plea. Allowing the State to introduce evidence of an
attempt to plead guilty nullifies the entire basis for the trial. The resulting prejudice
is so obvious and so overwhelming that when a defendant’s prior attempt to plead
guilty to a judge is improperly admitted into evidence, reversible error is committed
regardless of what the remaining evidence in the case may be.
{69} 	The majority asserts that the admission of Defendant’s attempted guilty plea
into evidence did not constitute structural error. Majority Opinion ¶ 45. I disagree.
Defendant’s constitutional right to the presumption of innocence instantly evaporated
the moment Ms. Gilmore told the jury that when Defendant appeared before the
magistrate judge, Defendant said, he “wanted to plead guilty,” and that “I’m not
denying anything that she [Tamisha] has said.”
{70} 	In Coffin v. United States, 156 U.S. 432, 453 (1895), the United States Supreme

52
Court declared:
The principle that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomatic and elementary, and its
enforcement lies at the foundation of the administration of our criminal
law.
Furthermore, the “presumption of innocence, although not articulated in the
Constitution, is a basic component of a fair trial.” Estelle v. Williams, 425 U.S. 501,
503 (1976). What occurred in this case deprived Defendant of a “basic component of
a fair trial.” 	Id. 	The very foundation of how we administer our criminal justice
system is weakened when we sanction subjecting such an error to a harmless error
analysis. I therefore conclude that structural error occurred in this case.
{71} 	It is the public policy in New Mexico to encourage, not to discourage, plea
agreements. 	“Guilty pleas are an essential part of our criminal justice system[.]”
Trujillo, 93 N.M. at 727, 605 P.2d at 235. In order to facilitate plea discussions, our
Supreme Court has declared
Rule 	[11-]410 	does 	not 	set 	up 	standards 	of 	relevancy 	and
trustworthiness, and we will not impose any on it. 	If a plea is never
entered or entered and then withdrawn, at trial it is to appear as though
the earlier plea and/or plea discussions never took place. 	The slate is
wiped clean once plea negotiations fail or the defendant withdraws his
plea.
* 	* 	*

53
[A] weighing of conflicting policies demonstrates that the balance is
tipped in favor of interpreting Rule [11-]410 as the cloak of privilege
around plea negotiation discussions.
Trujillo, 93 N.M. at 727, 605 P.2d at 235. The majority acknowledges this is the rule
in New Mexico. Majority Opinion ¶ 42. However, the majority fails to acknowledge
that this public policy places New Mexico squarely in line with the United States
Supreme Court and other state courts that conclude that the admission into evidence
of an aborted guilty plea constitutes reversible error.
{72} 	Kercheval, 274 U.S. at 223, establishes the federal evidentiary rule that
admitting a withdrawn guilty plea into evidence constitutes reversible error, regardless
of why the plea was withdrawn. The reasoning is particularly applicable here:
The effect of the court’s order permitting the withdrawal was to adjudge
that the plea of guilty be held for naught. Its subsequent use as evidence
against [the defendant] was in direct conflict with that determination.
When the plea was annulled it ceased to be evidence. By permitting it
to be given weight [by the jury] the court reinstated it pro tanto.
Id. at 224. The Supreme Court further observed that a trial is based upon a plea of not
guilty which is substituted for the prior guilty plea. 	Id. 	Therefore, allowing the
withdrawn plea to be admitted into evidence for the jury’s consideration places a
defendant “in a dilemma utterly inconsistent with the determination of the court
awarding him a trial.” Id. The Supreme Court did not discuss or analyze whether the

54
evidence was otherwise sufficient to sustain the conviction. See also State v. Jackson,
325 N.W.2d 819, 822 (Minn. 1982) (holding that statements made in connection with
a withdrawn plea are to be treated as if they were never made, and reversing the
defendant’s conviction where statements he made in connection with a plea agreement
were admitted into evidence to impeach his trial testimony); People v. Heffron, 399
N.Y.S.2d 501, 504, 506 (N.Y. App. Div. 1977) (noting that the argument for reversal
was compelling because in cross examination of the defendant concerning a
withdrawn guilty plea, the prosecutor asked the defendant whether he lied when he
entered the plea. 	Although there was no objection to the questioning, the court
reversed because the error was “so fundamental and prejudicial as to require a new
trial in the interest of justice”); State v. Hayes, 172 N.W.2d 324, 325-26 (Minn. 1969)
(reversing the conviction in a bench trial where evidence of a withdrawn guilty plea
in a prior arraignment for the same offense was admitted); D. Welch, Annotation,
Propriety and Prejudicial Effect of Showing, in Criminal Case, Withdrawn Guilty
Plea, 86 A.L.R.2d 326, §§ 4, 8, at 331-35, 338-39 (1962) (collecting cases and noting
it is the rule in many jurisdictions that admission into evidence of a withdrawn guilty
plea is reversible error because it is not admissible for any purpose at a trial upon a
plea of not guilty and that such error is not cured even by an instruction to jurors to

55
disregard their knowledge of that fact).
{73} 	My second disagreement with the majority is how it applies the concept of
harmless error to the admitted violation. The majority states that it “cannot conclude
that there is a reasonable possibility that the admission of the evidence that Defendant
attempted to plead guilty affected the jury’s verdict in this case.” Majority Opinion
¶ 46. Furthermore, the majority disagrees that the admission of Defendant’s attempted
guilty plea “may have forced him to take the stand in violation of his constitutional
rights.” 	Majority Opinion ¶ 53. 	These conclusions appear to be grounded upon a
conclusion that the attempted plea was nothing more than cumulative evidence.
Majority Opinion ¶¶ 50-52.
{74} 	The admission into evidence of Defendant’s attempt to plead guilty and
statements he made in connection with that attempt violated, touched upon, and
implicated various constitutional rights of Defendant. Two constitutional rights of
Defendant were squarely violated. Trujillo mandates that where a plea fails, “at trial
it is to appear as though the earlier plea and/or plea discussions never took place.” 93
N.M. at 727, 605 P.2d at 235. Stated another way, at trial Defendant was entitled to
every constitutional safeguard and presumption associated with a plea of “not guilty.”
Because of the nature of a guilty plea, which I have already discussed, improperly

56
admitting into evidence Defendant’s attempt to plead guilty destroyed Defendant’s
constitutional presumption of innocence. 	In addition, the State’s improper use of
Defendant’s statements made in connection with his offer to plead guilty resulted in
him testifying against himself “in substance if not in form.” 	See Wood v. United
States, 128 F.2d 265, 274 (D.C. Cir. 1942) (using this language). Once Defendant’s
statements in connection with the attempted plea were improperly admitted, his
constitutional right to remain silent was destroyed. He had to testify about the plea
if he was to have any hope of overcoming its effect on the jury. 	See Spitaleri, 173
N.E. 2d at 37 (stating that after the defendant’s withdrawn guilty pleas was improperly
admitted into evidence, he was “in effect forced to take the stand” to explain that
although he was innocent, he pleaded guilty because his lawyer promised him a
suspended sentence). Finally, State v. Reardon, 73 N.W.2d 192, 195 (Minn. 1955)
squarely holds that the admission into evidence of a withdrawn guilty plea violates the
due process protected by both the United States Constitution and the Minnesota
Constitution.
{75} 	There are additional constitutional rights which are touched upon or implicated
in this case. The record establishes that a videotape was shown to a group of prisoners
in jail, which included Defendant, that explained to the prisoners their “rights.”

57
However, the videotape is not before us, so we do not know its contents. 	We do
know, however, that Defendant had no attorney when the videotape was played and
he offered to plead guilty. Whether Defendant was afforded his constitutional right
to counsel and whether there was a valid waiver of this constitutional right are both
implicated. See State v. Melendez, 397 A.2d 1117, 1118, 1120 (N.J. Super. Ct. App.
Div. 1979) (per curiam) (concluding that the defendant’s constitutional right to
counsel was violated when he pleaded guilty at his first appearance because it was
made without counsel or a valid waiver of counsel, and directing that “[n]o admissions
made by defendant during the original arraignment shall be admissible in evidence
against him in the event he is retried”). Secondly, we have no basis for concluding
whether Defendant validly waived his constitutional right against self incrimination
when he offered to plead guilty. 	This constitutional right is also implicated. 	See
United States ex rel. Spears v. Rundle, 268 F. Supp. 691, 699 (E.D. Pa. 1967), aff’d,
405 F.2d 1037 (3d Cir. 1969) (concluding that a guilty plea cannot operate as a waiver
of the constitutional right against self incrimination if there was no valid waiver of
that privilege in making the plea itself).
{76} 	Under Chapman, in order to hold that constitutional error does not require
reversal, we must be able to conclude that the error was “harmless beyond a

58
reasonable doubt.” 386 U.S. at 24; Johnson, 2004-NMSC-029, ¶ 8; State v. Alvarez-
Lopez, 2004-NMSC-030, ¶ 25. The burden lies with the State to demonstrate that the
error is harmless beyond a reasonable doubt. 	Johnson, 2004-NMSC-029, ¶ 9;
Alvarez-Lopez, 2004-NMSC-030, ¶ 25. However, the State makes no argument of
harmless error. Specifically, the State’s brief fails to make any assertion or argument
attempting to demonstrate that there is no reasonable possibility that admitting
Defendant’s statements and attempt to plead guilty into evidence contributed to his
conviction. 	See Johnson, 2004-NMSC-029, ¶ 11 (stating the central focus in
determining whether constitutional error was harmless is “whether there is a
reasonable possibility the erroneous evidence might have affected the jury’s verdict”).
{77} 	In my independent examination of the record, I cannot conclude beyond a
reasonable doubt that the error in admitting this evidence was harmless. In Alvarez-
Lopez, our Supreme Court noted Fulminante in which the United States Supreme
Court “was faced with determining whether a criminal defendant’s involuntary
confession, which was unconstitutionally admitted into evidence against him at his
trial, contributed to his conviction.” 	Alvarez-Lopez, 2004-NMSC-030, ¶ 34. 	Our
Supreme Court agreed that
[C]onfessions have profound impact on the jury, so much so that we may
justifiably doubt its ability to put them out of mind even if told to do

59
so. . . . [A] full confession in which the defendant discloses the motive
for and means of the crime may tempt the jury to rely upon that evidence
alone in reaching its decision. . . . [T]he risk that the confession is
unreliable, coupled with the profound impact that the confession has
upon the jury, requires a reviewing court to exercise extreme caution
before determining that the admission of the confession at trial was
harmless.
Id. ¶ 34 (quoting Fulminante, 499 U.S. at 296). See also United States v. Leon-Delfis,
203 F.3d 103, 112 (1st Cir. 2000) (“Confessions are by nature highly probative and
likely to be at the center of the jury’s attention.”). This reasoning has even greater
force where a guilty plea is concerned. As I have already noted, a judicial guilty plea
has its own unique probative weight which is virtually impossible to overlook. In the
words of the United States Supreme Court, “A plea of guilty differs in purpose and
effect from a mere admission or an extrajudicial confession; it is itself a conviction.”
Kercheval, 274 U.S. at 223 (emphasis added).
{78} 	In Elizondo, the defendant was convicted of conspiracy to possess with intent
to distribute, and conspiracy to distribute, cocaine in federal court. 277 F. Supp. 2d
at 692. The federal judge admitted into evidence the defendant’s guilty plea in state
court, together with the state judgment of conviction, that he possessed the same
drugs. 	Id. at 697. The defendant was granted a new trial after the judge concluded
that he improperly admitted this evidence. 	Id. at 703-04. Applying Chapman, the

60
judge found “there is a significant possibility that admission of [the d]efendant’s state
court guilty plea and conviction had a substantial impact on [the d]efendant’s
conviction on the federal conspiracy charge.” 	The judge first recognized that
“admission of the guilty plea likely had an even greater impact on the verdict than
admission of the conviction itself.” 	Id. at 703. 	The judge then went further and
candidly acknowledged the effect it had upon the court itself when he denied the
defendant’s motion for a directed verdict. 	Id. at 703-04. 	When he denied the
defendant’s motion, the judge had said, “Well, I don’t know of a better form of
demonstration of knowledge [of the drugs] than somebody pleading guilty to it.” Id.
at 704.
{79} 	Under the circumstances of this case, it is not possible to conclude that the error
was harmless beyond a reasonable doubt. 	See Johnson, 2004-NMSC-029, ¶ 10
(directing that if we conclude, “there is a reasonable possibility the evidence
complained of might have contributed to the conviction” after examining the
admissible evidence and the possible impact of the error on that evidence, “we must
reverse”).
{80} 	Johnson and Alvarez-Lopez both teach that constitutional error cannot be
deemed harmless simply because there is overwhelming evidence of a defendant’s

61
guilt. 	Johnson, 2004-NMSC-029, ¶ 11; Alvarez-Lopez, 2004-NMSC-030, ¶ 32.
Among the reasons given are the recognition that appellate courts are “poorly
equipped” to determine guilt or innocence. Id. ¶ 29. Furthermore, defendants have
a constitutional right to have a jury decide guilt or innocence, not appellate judges
reviewing the evidence on appeal, id. ¶ 27, and we cannot take the risk that the
appellate court—the wrong entity—is adjudging the defendant’s guilt. Id. ¶ 28.
Consistent with the jury trial guarantee, the inquiry “is not whether, in a trial that
occurred without the error, a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial was surely unattributable to
the error.” 	Id. ¶ 27 (internal quotation marks and citation omitted). 	Perhaps most
compelling, “we risk inadvertently concluding that constitutional error was harmless
simply because there was substantial evidence to support the conviction.” Id. ¶ 30.
Accordingly, when constitutional error has infected a trial, a jury verdict is not
automatically afforded deference. Id. “Rather, in a proper harmless error analysis, the
appellate court defers to the jury verdict only when the State has established beyond
a reasonable doubt that the jury verdict was not tainted by the constitutional error.”
Id.
{81} 	As a policy matter, we must be cognizant that our criminal justice system, and

62
our federal and state constitutions, “protect other values besides the reliability of the
guilt or innocence determination.” 	Id. ¶ 31 (internal quotation marks and citation
omitted). A harmless error analysis which focuses solely on whether overwhelming
evidence supports a guilty verdict does not adequately protect those values. 	Id. 	In
this regard, I agree with the following statement from Reardon, 73 N.W.2d at 195,
which answered the state’s argument that whether there was prejudice requiring a new
trial when a withdrawn guilty plea was admitted into evidence was determined by
whether or not the error affected the result.
The state contends that whether or not there was prejudice requiring a
new trial is determined by whether or not the error affected the result.
There is authority for this proposition—but where the constitutional right
to a fair trial is denied, we are unwilling to adopt a theory which in effect
assumes that, where proof is strong, due process may be suspended. . .
. It is true there is cogent evidence to support the verdict; and it may be
expected that on a second trial the result would be the same. 	But to
allow factually strong cases to erode such a basic right is to deny the
existence of the right.
Id. (citations and footnotes omitted).
{82} 	Notwithstanding the weight of the remaining evidence against Defendant, the
State has failed to demonstrate that the verdict was not tainted by the error. 	The
majority’s 	attempt 	to 	demonstrate 	harmless 	error 	fails. 	Again, 	evidence 	of
Defendant’s attempt to plead guilty has a unique evidentiary weight, and simply

63
reciting what other evidence the State presented does not demonstrate harmless error.
{83} 	Finally, I disagree with the majority conclusion that Defendant’s attempt to
plead guilty was “truly” cumulative. Majority Opinion ¶ 52. Johnson states, “To the
extent the evidence corroborates, and therefore strengthens, the prosecution’s
evidence, it cannot be deemed ‘cumulative’ as we understand that term. 2004-NMSC-
029, ¶ 37. Again, given the nature and effect of a guilty plea, the improper evidence
in this case not only corroborated and strengthened the State’s case, it did so beyond
any reasonable doubt. Even if the evidence viewed as merely cumulative, “improperly
admitted evidence that is cumulative is not ipso facto harmless beyond a reasonable
doubt: the reviewing court must further inquire into the effect that evidence might
have had on the jury’s verdict.” 	Id. 	In this case, it cannot be assumed that the
improper evidence had no effect on the verdict in this case.
CONCLUSION
{84} 	For all the foregoing reasons, I would reverse Defendant’s conviction and
remand the case for a new trial.
_______________________________
MICHAEL E. VIGIL, Judge