State v. Stallings

Office of the Director New Mexico
09:45:45 2020.12.09 Compilation
'00'07- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-019

Filing Date: August 27, 2020

No. S-1-SC-36843

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

RICK STALLINGS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. Townsend, District Judge

Released for Publication December 15, 2020.

Bennett J. Baur, Chief Public Defender
William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General
Lauren Joseph Wolongevicz, Assistant Attorney General
Emily C. Tyson-Jorgenson, Assistant Attorney General

for Appellee

OPINION

VIGIL, Justice.

The right to self-representation must be respected when it is clearly invoked. This
case requires us to decide whether the right is clearly invoked when a defendant rejects
appointed counsel and seeks to represent himself as a second choice, if substitute
counsel cannot be appointed.

In the months leading up to Defendant Rick Stallings’ trial for first-degree murder,
Defendant grew to dislike his public defender. He repeatedly asked for one of two
things: either to be given a different attorney or to proceed pro se. Although he
understood that he had no right to choose his attorney, he fired his attorney. The district
court allowed a second attorney to be appointed, but Defendant soon grew to dislike his
second attorney. He demanded to fire his second attorney and sought either the
appointment of a third attorney or to proceed pro se. The district court did not appoint a
third attorney, but allowed Defendant to proceed pro se.

On appeal, Defendant claims that he did not clearly invoke the right to self-
representation. We hold that Defendant’s assertion of his desire to proceed pro se was
conditional, but that did not render it unclear. Defendant did not have a right to select
among appointed counsel, thus he decisively asserted his right to self-representation by
firing his attorney. Additionally, Defendant’s waiver of his right to counsel was knowing
and intelligent because the district court conducted a full inquiry into Defendant’s
capacity to represent himself and thoroughly warned Defendant of the dangers of self-
representation.

Defendant manifested a clear and unambiguous intention to represent himself,
and he waived counsel knowingly and intelligently. There was no error in allowing
Defendant to represent himself at trial. Finding no merit in Defendant’s other issues, we
affirm.

I. BACKGROUND

A. Evidence Presented at Trial

In the afternoon of September 30, 2015, Karen Cugnini was murdered in her
home after she walked in on a man in the midst of a burglary. Her body was discovered
the next morning by a concerned friend. Victim had been shot in the back of the head,
and a .22 caliber shell casing lay beside her on the bedroom floor. Victim’s white pickup
truck was missing from the driveway, and several gallon-sized Ziploc bags of old pawn
Native American jewelry, Native American rugs, boxes of silverware, checkbooks, a
purse, and a .38 caliber silver pistol were among the items missing from the home.
Police found a single rubber glove in the middle of the living room and an empty water
bottle on top of a piece of furniture.

Abundant evidence linked Defendant to the crime. At four o’clock in the afternoon
on the date of the incident, a neighbor saw Defendant driving a white pickup truck while
wearing a rubber glove on only one hand. Police later found Victim’s truck parked
behind a house that belonged to the mother of Defendant’s girlfriend. The woman told
police that Defendant drove the truck to her house, then tried to sell her some Native
American jewelry out of gallon-sized Ziploc bags. Defendant also claimed to have rugs
for sale. Other witnesses corroborated the woman’s account. Multiple witnesses
testified that they saw Defendant carrying a small silver pistol after the date of the
incident, and that prior to that time they had seen him in possession of a .22 caliber rifle.

In the days after the shooting, Defendant kept company with a group of
acquaintances who all testified against Defendant at trial. Their testimony revealed that
at Defendant’s initiative, members of the group used Victim’s credit cards and checks at
local businesses to obtain goods, services, and cash totaling in excess of $6,000. They
rented hotel rooms and consumed methamphetamine together. During that time,
Defendant told three different people that he had committed homicide. Defendant told
David Gutierrez that he “had to kill” a woman during a burglary. Defendant told Michelle
Every that he broke into a house and “had to off” a woman because she had seen his
face. He told Randy Hyde that a woman had walked in on him when he was making a
sandwich in her kitchen, and Defendant “shot her in the head.”

After a three-day manhunt, police tracked Defendant to Gutierrez’s house. A
SWAT team surrounded the area. Defendant jumped a fence and, when he was
apprehended, provided a false name and claimed to be in need of medical attention.
Defendant’s true identity was discovered when he tried to dispose of his wallet by
kicking it under a police car. In addition to Defendant’s identification, the wallet
contained a bag of methamphetamine. Police found Victim’s driver’s license and some
of her stolen jewelry inside Gutierrez’s house. Testing of the water bottle that was found
at the crime scene revealed Defendant’s DNA on the mouthpiece.

While in jail, Defendant wrote a series of letters to his girlfriend in which he made
several incriminating statements. Among the letters was a hand-drawn map directing
the girlfriend to “treasure,” which Defendant described as “two wooden boxes of
silverware . . . rugs and other things.” Police went to the location indicated on the
treasure map. They interviewed the property owner, who confirmed that some months
earlier he found two boxes of silverware and a .22 caliber rifle on the property. He
thought the items were trash, and had discarded them.

B. Procedural History

Defendant was charged with first-degree murder, aggravated burglary with a
deadly weapon, larceny (over $20,000), larceny of a firearm, unlawful taking of a motor
vehicle, possession of a firearm by a felon, and theft of a credit card. On October 14,
2015, contract public defender Thomas Clark entered his appearance on behalf of
Defendant in this case. Clark also represented Defendant in three other criminal cases
pending before the same district judge. 1

Six months into Clark’s representation, Defendant prepared a pro se “Motion to
Recuse Attorney Thomas Clark,” which he submitted during a status conference on
April 11, 2016. In the motion, he asserted that there had been an irreparable breakdown
in the attorney-client relationship due to Clark’s alleged dishonesty and failure to provide
Defendant with discovery. Defendant asked for the following relief:

1The public defender’s office appointed Clark to represent Defendant on four cases: D-1116-CR-2015-

00901, the instant case; D-1116-CR-2016-00054, in which Defendant was alleged to have fashioned a
shank from a pair of reading glasses; D-1116-CR-2017-00543, involving assault and battery on a peace
officer; and D-1116-CR-2015-00893, which was dismissed prior to trial by nolle prosequi.
[P]lease allow another attorney to be assigned to represent me or be
standby counsel as I continue on representing myself. I have access to
the jail legal library computer and, therefore, I feel I am more than capable
and willing to represent myself on all three (3) above cases as long as I
had standby counsel[.]

The district court allowed Defendant to elaborate, then had the following
exchange:

THE COURT: Mr. Stallings, at this point are you looking to
proceed pro se or are you looking—

DEFENDANT: Yes, ma’am. Yes, ma’am.

THE COURT: —do you want to proceed pro se?

DEFENDANT: I’d rather go pro se than have him on my case.

Defendant informed the court that he would accept representation from “anybody.
Anybody but [Clark].” However, Defendant withdrew his motion at a later hearing, telling
the district court that he was now “comfortable” with Clark as his attorney.

At a status conference on October 24, 2016, Defendant again sought to fire Clark
through a second pro se “Motion to Recuse Attorney Thomas Clark.” Defendant alleged
that there had been a complete breakdown of communication and that Clark was
intentionally sabotaging the case. Defendant asserted, “I have written him over 50
letters in past year and have only got 10 replys [sic].” Defendant asked the district court
“to please assign someone else more capable” or “if you will not grant my request, then
I will go it alone.”

The district court informed Defendant that he did not have the right to choose his
attorney, to which Defendant replied, “Yeah, I know.” He asserted, “[I]f you can’t get
[Clark] off my case, then I will go it alone. But if you will allow another attorney, I’d
appreciate it.”

The district court held a hearing on Defendant’s second motion to recuse Clark
on November 1, 2016. At that hearing, the district court conducted a thorough inquiry
into Defendant’s desire to represent himself and his capacity to do so. Defendant
affirmed that he wished to pursue his motion, and that he understood that he did not
have the right to choose his attorney. “Given that,” the district court asked, “do you wish
to proceed pro se?” Defendant responded, “Yes, ma’am.” The district court inquired into
Defendant’s age, English language ability, education, experience with the criminal
justice system, and understanding of the charges and possible penalties in all three
cases.
The district court emphasized the severe penalties Defendant faced in the
murder case. Defendant said that he understood. The district court then asked
Defendant if he was “comfortable in proceeding pro se in a case of this severity.”
Defendant replied, “Oh, absolutely not. . . . But I can’t—I’m not going to go with this
guy.” The district court again explained that Defendant did not have a right to choose his
counsel, but gave Defendant a choice: “your choice is to proceed pro se . . . . or you can
proceed with Mr. Clark.” Defendant replied, “Well, I won’t proceed with Mr. Clark, so I
guess that leaves me no choice.” The district court clarified, “So your choice is to
proceed pro se or on your own[?]” Defendant responded, “Yes.”

The district court then asked a series of questions to ensure that Defendant
understood the dangers of self-representation. Specifically, the district court explained
that it could not consult with Defendant about how to try his case; that presenting a
defense is not simply a matter of telling Defendant’s side of the story; that Defendant
would not be permitted to speak out of turn or present certain types of evidence; that
Defendant would be bound by rules of evidence and criminal procedure; and that
because the district attorney was an experienced lawyer, the State would have an
advantage in conducting trial. Defendant affirmed that he understood each of those
dangers. In summary, the district court asked, “You understand you’re going to be at a
disadvantage if you choose to proceed pro se?” Defendant replied, “Yes, ma’am. But I’d
be at a disadvantage if I proceed with Mr. Clark. . . . [H]e helped sabotage the case, so
. . . if I go pro se or with Mr. Clark, either way, I’m at a disadvantage.”

Defendant accused Clark of failing to communicate, lying to the court,
withholding discovery, and lying to Defendant. The district court had the following
exchange with Defendant:

THE COURT: Mr. Stallings, again, you’re not entitled to tell Mr.
Clark what to do.

DEFENDANT: It’s my life.

THE COURT: You’re simply entitled to an attorney.

DEFENDANT: Bull crap.

THE COURT: Trial strategy may be his decision—

DEFENDANT: No way.

THE COURT: —and not yours. Do you understand that.

DEFENDANT: There is no way. No way. This my life, not his life. He
don’t give a damn about me.

THE COURT: Well, Mr. Stallings, what I’m trying to get at is if you
want to proceed pro se or if you want to proceed with
Mr. Clark. That’s my inquiry. And today you’re telling
me you want to proceed pro se; is that correct?

DEFENDANT: Yeah.

The district court advised Defendant that if he represented himself at trial, he
would forfeit a claim of ineffective assistance of counsel on appeal. Defendant stated
that he understood. The district court then advised Defendant that, in the court’s
opinion,

a trained lawyer would defend you far better than you could defend
yourself. I think it’s unwise of you to represent yourself if you’re not familiar
with the law, you’re not familiar with court procedure, and you’re not
familiar with the rules of evidence. I strongly urge you not to try and
represent yourself.

Defendant stated that he understood. The district court then asked if, having considered
the perils of self-representation, Defendant still desired to represent himself and to give
up his right to be represented by a lawyer. Defendant responded, “No, I’m not willing to
give up that right. I would like a lawyer. I just don’t want Mr. Clark.” The district court
reiterated that Defendant did not have a right to choose his attorney, but he did have a
choice: “your choice is between representing yourself and proceeding with your current
attorney. What choice would you like to make?” Defendant replied, “Pro se.”

The district court then inquired into Defendant’s medications. Defendant stated
he was taking a medication that might affect his ability to make decisions. The district
court ordered Defendant’s competency to be evaluated and stayed all proceedings.

Five months later, Defendant was found competent to stand trial and
proceedings resumed. At a hearing on April 11, 2017, the district court asked Defendant
if he still wished to represent himself. Defendant stated, “No, I never wanted to
represent myself. I need some kind of counsel. I just don’t want this jerk to be my
lawyer.” The district court reminded Defendant that he did not have the option of
choosing his counsel. The district court told him that he must choose between Clark and
proceeding pro se. Defendant stated, “I need a lawyer, anybody besides him.”

Defendant accused Clark of lying to the court, then, apparently frustrated, began
shouting. The judge ordered Defendant removed from the courtroom for a “cooling-off
period.” When Defendant returned to the courtroom, the district court asked if there was
anything else he wanted to say. Defendant stated, “Yeah, I want to go pro se. I want—I
told you I don’t want Thomas Clark nowhere on my case. So I’m—I’ll just—it’s my
constitutional right to go pro se, so the hell with him.” The district court noted that they
had “gone back and forth on that,” and asked Defendant if he could keep control of
himself while the court made the necessary inquiry. Defendant did not respond. Clark
asked Defendant if he could “just behave long enough to tell [the court] you don’t want
me?” Defendant replied, “I told you a hundred times I don’t want you. . . . You’re an
asshole. You’re a piece of shit.”
Defendant’s hostility toward Clark came to a head on August 1, 2017, the first
day of trial on Defendant’s weapons case, D-1116-CR-2016-00054. Before that trial
began, Defendant filed a pro se “Motion for Pro Se Status on Above Titled Case.”
Defendant moved the court to

all[ow] Defendant to represent [him]self according to the Sixth Amendment
right to self-representation. Since the hearing before Judge Townsend on
Tuesday April 11th, 2017 [I] clearly and unequivocally asserted my
intention to represent myself. . . . Even [the] District Attorney . . . advised
the court that I had a right to represent myself, but Honorable Townsend
refuses to hear me out and allow me my constitutional right.

Defendant asked for Clark to be removed because of a conflict of interest, exchanges of
harsh words, and Defendant’s perception that Clark had lied to him and withheld
discovery.

The district court again conducted a thorough inquiry into Defendant’s ability to
represent himself, including questions about his age, education, understanding of legal
procedure, and other relevant factors. The court reminded Defendant that his two
options were to proceed pro se or proceed with Clark, to which Defendant responded,
“And so I want to go pro se.” Defendant added that he was being “forced into this”
because Clark was “destroying my case.”

The court recessed to review the motion and render its decision. During the
recess, Defendant began hurling expletives at Clark and threatened to punch him. Clark
responded with curses and prepared to defend himself if attacked. When the judge
returned to the courtroom, Defendant admitted to the altercation and reiterated his
strong wish to be rid of Clark and represent himself. He said: “Like I’ve been telling you
for fricking two years now, man, get the fuck away from me. I don’t want nothing to do
with him. He’s a piece of shit. I’ve been telling you that for forever, and you guys don’t
listen. . . . he’s not working in my best interest.”

With that, the district court granted Defendant’s motion and excused Clark. It
found that Defendant was competent to represent himself and declined to appoint Clark
as backup counsel given Defendant’s level of hostility towards him. The district court
found that it would be unfair to Clark to require him “to sit next to somebody who’s
threatened to punch you or use[d] profanity towards you.” The court set a hearing for
two weeks later and told Defendant that if the public defender did not appoint another
attorney prior to that hearing, Defendant would proceed pro se.

The district court followed its oral ruling with a written order removing Clark as
Defendant’s attorney from all pending cases, including the instant case. The district
court found that Defendant was “minimally able to maintain courtroom decorum” and
that he was competent to represent himself. It released Clark from Defendant’s cases
because it found that Defendant’s animosity toward Clark placed Clark’s physical well-
being in jeopardy, and because it would impede the orderly administration of justice for
Clark to continue as counsel.
On August 10, 2017, contract public defender Liane Kerr entered her appearance
as standby counsel for Defendant. At the next hearing, Defendant told the district court
that he was “happy with Kerr if she could have the case.” Kerr took over as counsel.

Three months later, on November 8, 2017, Kerr filed a motion to allow Defendant
to represent himself. Kerr stated that after he first accepted her representation,
Defendant had “since informed his attorney that he wishes to waive his right to counsel
and to represent himself.” Kerr requested that the district court rely upon its previous
findings that Defendant was competent to represent himself. Along with the motion, Kerr
submitted an affidavit outlining the history of her efforts to represent Defendant across
his several cases, and his repeated statements to the effect that he wished to fire her
and represent himself.

On the same day, Defendant filed his own handwritten motion asking the district
court to dismiss Kerr. He alleged that Kerr had failed to investigate or communicate with
him, and stated, “I don’t wish to see nor speak with her. I refuse to discuss my case with
her . . . [s]he is not capable of representing me.” He asked the district court to “recuse”
Kerr from his case, and stated, “I request a new attorney be allowed to represent me. If
you deny my request and force Liane Kerr on me, then I request to be lead counsel and
she be back up counsel.”

The district court took up these motions at the final motions conference two
weeks before the murder trial began. The district court granted Defendant’s pro se
request, noting that it had already ruled that Defendant was competent to proceed pro
se. Defendant stated that he wanted to have an attorney, “[b]ut if my only alternative is
Kerr, then yes, then I would rather be—represent myself than Ms. Kerr because there’s
no communication.” The district court confirmed that this was Defendant’s only
alternative, and informed Defendant that he would represent himself from that time
forward, with Kerr as standby counsel.

Trial began on November 27, 2017. Defendant represented himself throughout,
with access to the assistance of Kerr as standby counsel. On the second day of trial, the
district court asked Defendant if he would consider allowing Kerr to represent him again;
he declined. On the fourth day of trial, the district court asked Defendant if he would
consider having Kerr take over as counsel, but he again declined and said that he
wanted to proceed on his own. He told the court that although he felt “stupid” for
representing himself, “it’s my constitutional right. . . . I’d rather represent myself.” At
closing argument, Defendant lamented the fact that he was without counsel, but
explained to the jury: “[T]hat was my choice because I felt, shit, this is my life. You think
I’m going to put it in a lawyer’s hand?”

The jury convicted Defendant of first-degree murder, aggravated burglary,
unlawful taking of a motor vehicle, larceny of a firearm, and theft of a credit card. The
jury also made special findings that the murder had been committed to prevent Victim
from reporting a crime and that a firearm had been used in the commission of
aggravated burglary. The district court sentenced Defendant to life imprisonment
without possibility of parole for the murder and an additional term of imprisonment of
sixteen years and six months for the remaining felonies.

II. DISCUSSION

Defendant raises six issues on appeal: (1) that he was deprived of a fair trial
because he was forced to proceed pro se; (2) that the district court should have granted
a mistrial because of outside communications with the jury; (3) that the district court
improperly limited his cross-examination of a witness; (4) that the district court
erroneously allowed the State to present evidence that Defendant possessed
methamphetamine at the time of his arrest; (5) that there was insufficient evidence that
Defendant committed the murder; and (6) that cumulative error resulted in an unfair trial.
We address each issue in turn.

A. Jurisdiction and Standard of Review

We have direct appellate jurisdiction over Defendant’s appeal from his life
sentence. N.M. Const. art. VI, § 2 (“Appeals from a judgment of the district court
imposing a sentence of death or life imprisonment shall be taken directly to the supreme
court.”). “The decision to appoint substitute counsel is discretionary and will not be
overturned except where there is shown an abuse of discretion.” State v. Lewis, 1986-
NMCA-090, ¶ 17, 104 N.M. 677, 726 P.2d 354. The issue of whether Defendant validly
waived his constitutional right to counsel is an issue of law that we review de novo. See
State v. Martinez, 1999-NMSC-018, ¶ 15, 127 N.M. 207, 979 P.2d 718. “We review a
trial court’s denial of a motion for mistrial under an abuse of discretion standard.” State
v. Gallegos, 2009-NMSC-017, ¶ 21, 146 N.M. 88, 206 P.3d 993 (internal quotation
marks and citations omitted). “We review the district court’s evidentiary rulings for
an abuse of discretion.” State v. Comitz, 2019-NMSC-011, ¶ 46, 443 P.3d 1130.

B. The Right to Counsel and the Right to Self-Representation

1. The district court properly protected Defendant’s right to counsel

Every criminal defendant has the fundamental right to assistance of counsel at all
critical stages of the case. U.S. Const. amend. VI, XIV; N.M. Const. art. II, § 14; State v.
Lewis, 1986-NMCA-038, ¶ 6, 104 N.M. 218, 719 P.2d 445. “[I]n our adversary system of
criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be
assured a fair trial unless counsel is provided for him.” Gideon v. Wainwright, 372 U.S.
335, 344 (1963). “The constitutional right of an indigent criminal defendant to the
assistance of counsel for his defense is a fundamental right, essential to a fair trial.”
Lewis, 1986-NMCA-038, ¶ 6. The counsel provided must be competent, State v.
Trammell, 2016-NMSC-030, ¶ 16, 387 P.3d 220, but counsel’s competence is
presumed, State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. The
right to counsel does not include the right to select among appointed attorneys. State v.
Lucero, 1986-NMCA-085, ¶ 21, 104 N.M. 587, 725 P.2d 266 (“While an indigent
defendant has a right to appointed counsel, the defendant does not have the
concomitant right to the appointment of the attorney of his choice.”); see also United
States v. Padilla, 819 F.2d 952, 956 (10th Cir. 1987) (“The Sixth Amendment provides
no right to counsel blindly following a defendant’s instructions. Furthermore, there is no
absolute right to counsel of one’s choice.” (citation omitted)).

We review the district court’s decisions regarding substitution of counsel for
abuse of discretion. Lewis, 1986-NMCA-090, ¶ 17. “An abuse of discretion occurs when
the ruling is clearly against the logic and effect of the facts and circumstances of the
case. We cannot say the trial court abused its discretion by its ruling unless we can
characterize it as clearly untenable or not justified by reason.” State v. Rojo, 1999-
NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citations
omitted). “Dissatisfaction with trial counsel’s tactics or strategy is not sufficient grounds
for replacement of counsel.” State v. Castillo, 1990-NMCA-043, ¶ 6, 110 N.M. 54, 791
P.2d 808.

Here, Defendant was provided competent counsel—not once, but twice. The
district court found that because these attorneys were competent Defendant had no
right to substitute counsel. We agree with the district court’s assessment. Both Thomas
Clark and Liane Kerr were experienced trial attorneys who were eminently qualified to
handle Defendant’s case. The district court noted that Clark and Kerr were two of
perhaps a dozen contract attorneys statewide who met the public defender’s criteria to
handle a first-degree murder trial. Clark, with his twenty-two years’ experience, worked
hard to develop the defense case. He filed pretrial motions, interviewed numerous
defense witnesses, prepared transport orders for those witnesses, and served them
with subpoenas. He transcribed all witness statements and provided those transcripts to
Defendant. He provided Defendant with all discovery, including audio and video. He
retained a DNA expert. His investigator spent over 200 hours working on Defendant’s
case and met with Defendant three times. Kerr continued in the same vein. She
diligently prepared for trial by continuing to investigate defenses, procure evidence, file
motions, consult with experts, interview and subpoena witnesses, and keep Defendant
apprised of developments in the case. The record shows that Clark and Kerr provided
diligent and thorough representation to Defendant, despite the barrage of personal
attacks and even threats that Defendant leveled against them. We recognize that the
difficult work of public defenders can be made more challenging when, as here,
defendants turn against their own attorneys. Clark and Kerr acted admirably in the face
of unnecessarily difficult circumstances and the record before us does not indicate that
they provided ineffective assistance of counsel. We next address whether the district
court improperly denied Defendant a third attorney after Defendant fired Kerr.

The district court acted well within its discretion by refusing to appoint a third
attorney in this case. Defendant claimed that Kerr was ineffective because, during his
trial on the weapons charge, Kerr “lied to the court and jury by basically agreeing the
item was a shank, which it was not.” Defendant did not explain how Kerr’s
representation during his trial on the weapons charge rendered her ineffective in this
case. Moreover, we view this as nothing more than Defendant’s disagreement over trial
strategy in the weapons case. Defendant also complained at length about Kerr’s alleged
negative attitude. We fail to see how competent representation is related to a
defendant’s assessment of trial counsel’s attitude. See United States v. Moore, 706
F.2d 538, 539-40 (5th Cir. 1983) (holding that the defendant’s dislike of counsel’s
perceived “prosecutorial attitude” or “police state mentality” did not provide grounds to
substitute counsel); McKee v. Harris, 649 F.2d 927, 932 (2nd Cir. 1981) (holding that
good cause for dismissal of counsel cannot “be determined solely according to the
subjective standard of what the defendant perceives[,]” because to do so would “grant[]
unrestrained power to the defendant to discontinue the trial” (internal quotation marks
and citation omitted)).

On appeal, Defendant levels more allegations of ineffectiveness against counsel,
claiming that his attorney did not assert his right to a speedy trial; argue for a change of
venue; secure an expert on DNA, ballistics, or fingerprint evidence; produce alibi
witnesses; or investigate a lost bullet fragment. He does not demonstrate where those
facts exist in the record, nor does he explain how these choices were something other
than rational trial tactics or strategies. “If any claimed error can be justified as a trial
tactic or strategy, then the error will not be unreasonable.” Bernal, 2006-NMSC-050, ¶
32. Additionally, Defendant does not explain how those claimed errors caused
prejudice. We will not find ineffective assistance of counsel on appeal unless the
defendant has shown “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984); see also State v. Sloan, 2019-NMSC-019, ¶ 33,
453 P.3d 401. We conclude that the district court protected Defendant’s right to counsel
by providing him with competent appointed counsel, and “went beyond any reasonable
requirement for appointment of counsel” by appointing a second competent attorney at
Defendant’s request. Moore, 706 F.2d at 540. The district court did not abuse its
discretion by refusing Defendant’s request for a third attorney.

2. The district court properly respected Defendant’s right to self-
representation

The constitutional right to counsel imposes a duty on the government to provide
counsel; it does not impose a duty on the accused to accept counsel. Adams v. United
States ex rel. McCann, 317 U.S. 269, 279 (1942) (“[T]he Constitution does not force a
lawyer upon a defendant.”). If a defendant does not want an attorney, he or she may
refuse the assistance of counsel and defend the case pro se. N.M. Const. art. II, § 14
(“In all criminal prosecutions, the accused shall have the right to appear and defend
himself in person, and by counsel[.]”); State v. Garcia, 2011-NMSC-003, ¶ 24, 149 N.M.
185, 246 P.3d 1057 (explaining that the “right to assistance of counsel includes the
corollary right to reject the imposition of counsel”). Undeniably, trial outcomes for
defendants who exercise the right to self-representation are generally less favorable
than for defendants who are represented by counsel. McKaskle v. Wiggins, 465 U.S.
168, 177 n.8 (1984). Nevertheless, “[p]ersonal liberties are not rooted in the law of
averages[,]” and a defendant’s choice to proceed pro se “must be honored out of that
respect for the individual which is the lifeblood of the law.” Faretta v. California, 422 U.S.
806, 834 (1975) (internal quotation marks and citation omitted).

While the right to counsel and the right to self-representation are both
constitutionally guaranteed, they cannot be upheld together; a defendant must choose
between them. See, e.g., United States v. Mackovich, 209 F.3d 1227, 1236-37 (10th
Cir. 2000) (recognizing that the right to self-representation and the right to counsel are
mutually exclusive). In other words, a defendant may act as client or counsel, but has
no right to act as co-counsel. See, e.g., McKaskle, 465 U.S. at 183 (holding that there is
no right to “hybrid” representation); United States v. Tutino, 883 F.2d 1125, 1141 (2nd
Cir. 1989) (“[A] criminal defendant has no constitutional or statutory right to represent
himself as co-counsel with his own attorney.”); Castillo, 1990-NMCA-043, ¶ 6 (noting
that a defendant who is represented by counsel cannot direct the attorney’s trial
strategy or tactics); Lewis, 1986-NMCA-038, ¶ 10 (“While an accused has a
constitutional right to prosecute his own appeal, he does not have a concomitant right to
conduct his appeal while serving as co-counsel with court-appointed counsel.”).
Therefore, in order for a defendant to proceed pro se, he or she must waive the
countervailing right to counsel. State v. Chapman, 1986-NMSC-037, ¶ 10, 104 N.M.
324, 721 P.2d 392; see also, e.g., Garcia, 2011-NMSC-003, ¶ 30 (noting that a court
may deny a pro se request if the defendant does not have the ability “to waive the right
to counsel knowingly and intelligently”); People v. Stone, 6 N.E.3d 572, 575 (N.Y. 2014)
(“It is well-settled that an application to proceed pro se must be denied unless defendant
effectuates a knowing, voluntary and intelligent waiver of the right to counsel.”).

In light of the mutual exclusivity of the two rights, courts must make a clear
record prior to allowing a defendant to proceed pro se. The court must ensure that a
prospective pro se defendant “knows what he [or she] is doing and [the] choice is made
with eyes open.” Adams, 317 U.S. at 279. To that end, the defendant who wishes to
exercise the right of self-representation must (1) clearly and unequivocally assert his or
her intention to proceed pro se, (2) make the assertion in a timely manner, and (3)
knowingly and intelligently waive the right to counsel. Garcia, 2011-NMSC-003, ¶ 25.
We view those factors as requiring separate inquiries into the clarity of the invocation of
the right to self-representation on the one hand and the adequacy of waiver of the right
to counsel on the other. The first two Garcia factors examine whether the defendant
made a prima facie showing that self-representation was at issue, whereas the third
factor bears on the broader question of whether, under the totality of the circumstances,
the defendant knowingly and intelligently waived counsel.

Timeliness is not at issue in this case, because Defendant raised his right to self-
representation well before trial. See id. ¶ 26 (“If [self-representation] is requested in
advance of trial, a defendant who makes the request ‘clearly and unequivocally’ and
‘knowingly and intelligently’ is presumptively entitled to the right.” (citation omitted)). We
therefore focus on the first and third Garcia factors.

a. Clear and unequivocal assertion of intent to proceed pro se
The first prong of Garcia requires that a defendant “‘clearly and unequivocally’
assert his intention to represent himself.” 2011-NMSC-003, ¶ 25 (citation omitted). This
is a threshold inquiry. Once a defendant makes a clear and unequivocal statement that
can reasonably be understood to invoke the right to self-representation, the trial court
has a duty to inquire further into the defendant’s waiver of the right to counsel. See,
e.g., State v. Vincent, 2005-NMCA-064, ¶ 11, 137 N.M. 462, 112 P.3d 1119 (“Because
Defendant expressed a desire to represent himself, the district judge was required to
determine if Defendant was making a ‘knowing and intelligent’ waiver of his right to an
attorney[.]” (citation omitted)); State v. Rotibi, 1994-NMCA-003, ¶ 3, 117 N.M. 108, 869
P.2d 296 (“In a case where a defendant wishes to represent himself, the district court
must determine if the defendant is making a knowing and intelligent waiver of counsel[.]”
(internal quotation marks and citation omitted)). On the other hand, vague or equivocal
statements do not trigger a duty on the part of the trial court to inquire further. See, e.g.,
Meeks v. Craven, 482 F.2d 465, 467 (9th Cir. 1973) (holding that a defendant’s lone
statement, “I think I will [represent myself],” was not an unequivocal assertion of the
right to self-representation); State v. Barela, 2018-NMCA-067, ¶¶ 7, 13, 429 P.3d 961
(holding that defendant’s single question, “And I can’t represent myself? That’s what
you’re saying?” was not a clear, unequivocal assertion of the right to self-
representation); see also Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989) (noting
that “occasional musings on the benefits of self-representation” do not invoke the right
to self-representation).

However, there is no issue of vagueness or equivocation where, as here, a
defendant asserts the right to self-representation as his or her second choice.
Defendants who are dissatisfied with a particular appointed attorney frequently express
a desire to go pro se rather than continue with the disfavored attorney. 3 Wayne R.
LaFave, et al., Criminal Procedure, § 11.4(d), at 835 (4th ed. 2015). In those situations,
the court “commonly will inform the defendant that he either must proceed with his
current counsel or represent himself. Very often the defendant will choose the latter
alternative, noting that he does so only because it is the lesser of two evils.” Id. Such a
request is conditional—because it is dependent upon the denial of substitute counsel—
but that does not make it unclear or equivocal. Adams, 875 F.2d at 1445.

A defendant can assert the right to self-representation while maintaining a
preference for other options. See, e.g., id. at 1444-45 (holding that a defendant’s
request to represent himself was not equivocal even though he stated that he would do
so only as a last resort to avoid being represented by a particular appointed attorney).
When, as here, an indigent defendant asserts the right to self-representation as the
proverbial lesser of two evils, the assertion is adequate. See Pasha v. State, 39 So. 3d
1259, 1262 (Fla. 2010) (“A defendant who persists in discharging competent counsel
after being informed that he is not entitled to substitute counsel is presumed to be
unequivocally exercising his right to self-representation.” (internal quotation marks,
citation, and emphasis omitted)); State v. Pedockie, 2004 UT App 224, ¶ 34, 95 P.3d
1182 (“That [Defendant] did not particularly like the choice presented to him . . . and that
he did not want to proceed pro se are not sufficient reasons to render the choice
constitutionally offensive. Therefore, . . . his choice, however reluctant or
conditional, was voluntary and unambiguous.” (first and second alterations in original)
(internal quotation marks and citations omitted)); State v. Sinclair, 730 P.2d 742, 745
(Wash. Ct. App. 1986) (“[W]hen the trial court has correctly ruled that substitute counsel
will not be appointed and the defendant insists that in the absence of substitute counsel
he be permitted to defend pro se, his request must be deemed unequivocal.”).
In this case, Defendant consistently and emphatically announced his position: if
he could not have another attorney, he would “go it alone.” He insisted, “it’s my
constitutional right to go pro se,” and blamed the district court for “refus[ing] to hear me
out and allow me my constitutional right” after “clearly and unequivocally assert[ing] my
intention to represent myself.” He repeatedly stated that if he was not given a new
attorney, “I want to go pro se.” These declarations cannot be construed as “a
momentary caprice or the result of thinking out loud[.]” Adams, 875 F.2d at 1445. They
represent Defendant’s considered judgment over the course of many months.
Defendant was perfectly clear about what he wanted and what he intended to do. We
will not find that Defendant’s forceful assertion of the right to self-representation was
unclear or equivocal simply because he preferred an alternative course of action to
which he was not entitled. The first prong of Garcia was satisfied in this case.

b. Knowing and intelligent waiver of the right to counsel

The third prong of Garcia makes a related, but distinct, inquiry: Did the defendant
“knowingly and intelligently” waive the right to counsel? 2011-NMSC-003, ¶ 25 (internal
quotation marks and citation omitted). This question is not conclusively answered by a
defendant’s clear and unequivocal assertion of the right of self-representation. See Von
Moltke v. Gillies, 332 U.S. 708, 724 (1948) (“The fact that an accused may tell [the
judge] that he is informed of his right to counsel and desires to waive this right does not
automatically end the judge’s responsibility.”). After all, it is possible for a defendant to
make a clear and unequivocal statement invoking the right to self-representation (thus
satisfying Garcia’s first prong) but without comprehending the implications of waiving
counsel. For example, a defendant with severe mental illness may clearly and
unequivocally assert the right to proceed pro se, yet be unable to knowingly and
intelligently waive the right to counsel. Chapman, 1986-NMSC-037, ¶ 10 (affirming
district court’s denial of clear pro se request where paranoid-schizophrenic defendant
“clearly indicated his inability to appreciate the pitfalls of self-representation, when on
the issue of representation, his competency, understanding, background, education,
training, experience, conduct and ability to observe procedures and protocol of the court
were considered and weighed”). In such a case, a clear and unequivocal request for
self-representation will be denied. See id.; Garcia, 2011-NMSC-003, ¶ 30 (noting that a
clear and unequivocal pro se request is properly denied where the defendant cannot
make a knowing and intelligent waiver of the right to counsel). Thus, simply because a
defendant has asserted a clear intent to proceed pro se, thereby invoking the right to
self-representation, we do not presume that the defendant has also waived the right to
counsel in a knowing and intelligent manner. See, e.g., Johnson v. Zerbst, 304 U.S.
458, 465 (1938) (recognizing the trial court’s “protecting duty” over the right to counsel,
which “imposes the serious and weighty responsibility upon the trial judge of
determining whether there is an intelligent and competent waiver by the accused”).

Instead, the court must independently ensure that the prospective pro se
defendant validly waived the right to counsel. “To be valid[,] waivers ‘not only must be
voluntary but must be knowing, intelligent acts done with sufficient awareness of the
relevant circumstances and likely consequences.’” State v. Padilla, 2002-NMSC-016, ¶
18, 132 N.M. 247, 46 P.3d 1247 (quoting Brady v. United States, 397 U.S. 742 (1970)).
“There are no fixed guidelines to determine whether a defendant has ‘knowingly and
intelligently’ waived the right to counsel and consequently proceed pro se.” Rotibi, 1994-
NMCA-003, ¶ 8. “The determination of whether there has been an intelligent waiver of
right to counsel must depend, in each case, upon the particular facts and circumstances
surrounding that case, including the background, experience, and conduct of the
accused.” Johnson, 304 U.S. at 464. “Resolution of whether a valid waiver of counsel
has occurred depends upon the totality of the circumstances.” State v. Barrera, 2001-
NMSC-014, ¶ 28, 130 N.M. 227, 22 P.3d 1177 (quoting State v. Boeglin, 1983-NMCA-
075, ¶ 22, 100 N.M. 127, 666 P.2d 1274).

To satisfy the third prong of Garcia, courts should ensure that a prospective pro
se defendant understands the rights at stake and the risks involved in pro se
representation. Von Moltke, 332 U.S. at 724; Castillo, 1990-NMCA-043, ¶ 9. As the
United States Supreme Court has stated,

When an accused manages his own defense, he relinquishes, as a
purely factual matter, many of the traditional benefits associated with the
right to counsel. For this reason, in order to represent himself, the accused
must ‘knowingly and intelligently’ forgo those relinquished benefits.
Although a defendant need not himself have the skill and experience of a
lawyer in order competently and intelligently to choose self-representation,
he should be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that he knows what he is
doing and his choice is made with eyes open.

Faretta, 422 U.S. at 835 (internal quotation marks and citations omitted).

Courts should engage in a dialog with the defendant—a so-called Faretta
colloquy—that covers the full panoply of issues involved with self-representation. A
Faretta colloquy should include a full explanation “of the nature of the charges, the
statutory offenses included within them, the range of allowable punishments, [and]
possible defenses or mitigating factors that might be available to the defendant[.]”
Castillo, 1990-NMCA-043, ¶ 9. When a trial is contemplated (rather than a plea
agreement), the district court should also warn the prospective pro se defendant of the
following:

(1) that presenting a defense is not a simple matter of telling one’s story,
but requires adherence to various technical rules governing the conduct of
a trial; (2) that a lawyer has substantial experience and training in trial
procedure and that the prosecution will be represented by an experienced
attorney; (3) that a person unfamiliar with legal procedures may allow the
prosecutor an advantage by failing to make objections to voir dire of
jurors, and may make tactical decisions that produce unintended
consequences; (4) that a defendant proceeding pro se will not be allowed
to complain on appeal about the competency of his representation; and (5)
that the effectiveness of his defense may well be diminished by his dual
role as attorney and accused.
Id. (internal quotation marks and citation omitted).

If a district court fails to conduct a full Faretta colloquy covering those topics,
reviewing courts generally will find that a defendant’s waiver of counsel was not
knowing and voluntary. See, e.g., Padilla, 819 F.2d at 957 (“Because the record in this
case fails to demonstrate the district court made the thorough and comprehensive
examination of all the facts and circumstances contemplated by Von Moltke and its
progeny, we cannot say [the defendant] made a knowing and intelligent waiver of his
right to counsel.”); Castillo, 1990-NMCA-043, ¶ 12; but see, e.g., United States v. Hill,
252 F.3d 919, 928 (7th Cir. 2001) (holding that waiver of counsel was knowing and
intelligent despite the district court’s failure to conduct an exhaustive Faretta colloquy).

However, because the ultimate purpose of the Faretta colloquy is to establish a
knowing and intelligent waiver of the right to counsel, the focus of the inquiry must be on
the defendant’s awareness and understanding rather than the specific form of words
used by the court. Smith v. Maldonado, 1985-NMSC-115, ¶¶ 11-12, 103 N.M. 570, 711
P.2d 15 (“[W]hether waiver [of counsel] is legally sufficient depends upon the facts and
circumstances of each case, including the background, experience and conduct of the
accused. The focus of the inquiry is on the defendant’s understanding, not the judge’s
ability to read.”); see also Chapman, 1986-NMSC-037, ¶ 10 (holding that to establish a
knowing and intelligent waiver of counsel “the court must inform itself” about numerous
characteristics of the individual defendant, including the defendant’s “understanding,
background, education, training, experience, [and] conduct”); State v. Reyes, 2005-
NMCA-080, ¶ 8, 137 N.M. 727, 114 P.3d 407 (characterizing the court’s role in
establishing waiver of counsel as “the task of assessing the defendant’s understanding
of the requirements and risks of self[-]representation”). “[I]n light of the strong
presumption against waiver of the constitutional right to counsel, a judge must
investigate as long and as thoroughly as the circumstances of the case before him
demand.” Von Moltke, 332 U.S. at 723-24.

Defendant does not challenge the adequacy of the district court’s efforts to
inquire, advise, and forewarn Defendant about the dangers of self-representation, nor
does he argue that he did not understand the warnings and the risks. He concedes that
the district court’s colloquy was “comprehensive.” Instead, he appears to argue that he
did not “knowingly and intelligently” waive his right to counsel because he did not
expressly waive his right to counsel after the Faretta colloquy. It is true that Defendant
never signed a form or orally agreed to waive his right to counsel. And, while he clearly
and repeatedly expressed unwillingness to proceed with his appointed counsel, he also
said that he was “not willing to give up” the right to counsel. As Defendant put it, “I never
wanted to represent myself. I need some kind of counsel. I just don’t want this jerk to be
my lawyer.” In essence, Defendant contends that by voicing his refusal to give up his
right to counsel, he retained his right to counsel. We disagree.

Under Defendant’s view, a “knowing and intelligent” waiver of counsel would also
need to be express. However, that view is not supported by the law. Although the “most
commonly understood method of ‘waiving’ a constitutional right is by an affirmative,
verbal request[,]” United States v. Goldberg, 67 F.3d 1092, 1099 (3rd Cir. 1995), there
are other methods of waiver. “[I]t is possible for a valid waiver of counsel to occur not
only when a cooperative defendant affirmatively invokes his right to self-representation,
but also when an uncooperative defendant rejects the only counsel to which he is
constitutionally entitled, understanding his only alternative is self-representation with its
many attendant dangers.” United States v. Garey, 540 F.3d 1253, 1265 (11th Cir.
2008); see also 3 LaFave, supra, § 11.4(d), at 839 (“[A]n explicit waiver on the record is
not required where the fully informed defendant, though understanding the choice put to
him, clearly indicates that he is rejecting his counsel, but refuses to affirmatively express
his desire to proceed pro se.” (internal quotation marks and citation omitted)).

Although this doctrine, known as “waiver by conduct,” has not previously been
adopted by New Mexico courts in the context of waiver of counsel, other jurisdictions
widely recognize the doctrine in that context. See generally 3 LaFave, supra, § 11.3(c),
at 792-794; id. § 11.4(b), at 807 n.32; id. § 11.4(d), at 835-839; see also, e.g., Garey,
540 F.3d at 1264 (collecting cases); Moore, 706 F.2d at 540 (applying waiver-by-
conduct analysis); Bultron v. State, 897 A.2d 758, 763-765 (Del. 2006) (distinguishing
waiver by conduct from express waiver and forfeiture of right to counsel); People v.
Lesley, 2018 IL 122100, ¶¶ 36-42, 123 N.E.3d 1060 (same). Moreover, New Mexico has
long recognized waiver by conduct in other contexts. See, e.g., Palenick v. City of Rio
Rancho, 2013-NMSC-029, ¶ 14, 306 P.3d 447 (recognizing waiver by conduct in
employment termination context); Padilla, 2002-NMSC-016, ¶¶ 12, 14 (recognizing
waiver by conduct of a defendant’s right to be present in court); Brown v. Taylor, 1995-
NMSC-050, ¶ 10, 120 N.M. 302, 901 P.2d 720 (recognizing waiver by conduct in breach
of lease action); Easterling v. Peterson, 1988-NMSC-030, ¶ 4, 107 N.M. 123, 753 P.2d
902 (recognizing waiver by conduct in breach of contract action); Gilmore v. Gilmore,
2010-NMCA-013, ¶ 27, 147 N.M. 625, 227 P.3d 115 (recognizing waiver by conduct in
divorce litigation); Hull v. Feinstein, 2003-NMCA-052, ¶ 12, 133 N.M. 531, 65 P.3d 266
(recognizing waiver by conduct of right to jury trial); see also Cooper v. Albuquerque
City Comm’n, 1974-NMSC-006, ¶ 28, 85 N.M. 786, 518 P.2d 275 (acknowledging
general principle that “the act of waiver may be evidenced by conduct as well as by
express words”).

Waiver by conduct cannot be found unless the district court has provided
adequate forewarning through a proper Faretta colloquy. Goldberg, 67 F.3d at 1100-01.
But if after a thorough Faretta colloquy in which the defendant demonstrates an
understanding of the risks, the defendant persists in demanding to be relieved of
appointed counsel, then the waiver of counsel is effective. See United States v. Brown,
591 F.2d 307, 310 (5th Cir. 1979) (“[The defendant’s] persistence in refusing to accept
any counsel except that of his own choosing and his insistence on proceeding [p]ro se
can only be construed as a knowing and intelligent waiver of counsel. The election was
presented to him and he exercised it.”).

We clarify that under Garcia’s third prong, a defendant may knowingly and
intelligently waive counsel by conduct—the waiver need not be express. We hold that
when a defendant has made a clear and unequivocal, timely assertion of the right to
self-representation, the defendant’s waiver of counsel is “knowing” and “intelligent” as
long as the district court conducts a proper Faretta colloquy on the record and the
defendant manifests an understanding of the rights being relinquished and the risks
involved. Cf., e.g., Reyes, 2005-NMCA-080, ¶¶ 18-20 (holding that the district court
committed reversible error by determining that the defendant did not knowingly and
intelligently waive counsel despite conducting a full Faretta colloquy). Thereafter, the
district court must allow the defendant to proceed pro se. Rotibi, 1994-NMCA-003, ¶ 13
(“[O]nce it has been determined that the waiver of counsel was ‘knowingly and
intelligently’ made by a defendant, as in this case, the court had no alternative but to
allow [the d]efendant to proceed on his own.”).

In this case, there is no question as to the adequacy of the district court’s Faretta
colloquy or the Defendant’s comprehension of the warnings. Therefore, Defendant’s
refusal to explicitly waive his right to counsel was of no consequence. He waived
counsel by conduct when he chose to proceed pro se after adequate warning. See, e.g.,
Garey, 540 F.3d at 1264 (“[A] defendant who rejects appointed counsel but refuses to
cooperate with the court by affirmatively expressing his desire to proceed pro se,
effectively chooses self-representation by rejecting the only other choice to which he is
constitutionally entitled.”).

Defendant invoked his right to self-representation in a clear, unequivocal, and
timely manner. The district court provided him with adequate advice and forewarning
and discerned that Defendant was fully aware of the potential consequences of his
choice. Thereafter, the court was obligated to respect his decision to exercise the right
to self-representation. Defendant’s choice, however ill-advised, was nonetheless his
own, and no remedy is available to him. Like many pro se defendants before him, he
“knew and stood on his rights and, having received his due, cannot complain.” Hill, 252
F.3d at 929.

C. Outside Communications With Jurors

Defendant argues that his jury was “irreparably tainted by outside
communications,” because, on two occasions, a juror engaged in or overheard a
conversation with law enforcement while on lunch break, disclosed the communication
to the district court, and consequently was excused from the jury. The first incident
concerned a statement to a juror about the duration of trial. In that incident, a deputy
told a juror that he believed the trial could last into the following week. That juror
repeated the statement to other jurors, then informed the district court of the
conversation. The second incident concerned a juror who overheard a detective say,
“we’re winning,” and “the jury looks tired,” while at a restaurant. That juror immediately
left the restaurant and informed the district court of what he had overheard. The district
court excused both jurors after questioning them about the communications, but did not
declare a mistrial as Defendant requested. We review the denial of a motion for mistrial
for an abuse of discretion. Gallegos, 2009-NMSC-017, ¶ 21.

A mistrial is warranted on the basis of jury tampering when the movant
“establish[es] that (1) material extraneous to the trial actually reached the jury, (2) the
extraneous material relates to the case being tried, and (3) it is reasonably probable that
the extraneous material affected the jury’s verdict or a typical juror.” Kilgore v. Fuji
Heavy Indus. Ltd., 2010-NMSC-040, ¶ 21, 148 N.M. 561, 240 P.3d 648. While the first
communication reached the jury, speculation about the end date of trial could not
reasonably have affected the verdict. The second communication did not reach the jury,
because the juror who overheard the detective immediately reported the incident to the
district court and was excused from the jury. The district court did not abuse its
discretion by refusing to declare a mistrial.

D. Restrictions on Cross-Examination

Defendant argues that the district court improperly limited the scope of his cross-
examination of a witness, Sandra Lundy. The State’s direct examination of Lundy
established the following facts: the day of the murder, Lundy saw Defendant point a .22
caliber rifle at one of Lundy’s friends in a threatening manner, which caused Lundy to
exclude Defendant from her property. Defendant cross-examined Lundy about her drug
use, her social habits, whether she shared food with others, her marriage and her
alleged desire to kill her husband, whether she had “beat the shit out of” someone,
whether she had been to Victim’s house, her knowledge of and possession of “special
rugs,” and whether Lundy killed Victim.

Despite the wide-ranging subjects Defendant was allowed to explore in his cross-
examination, he asserts that he also should have been permitted to introduce phone
calls that Lundy made from jail. Defendant explained to the district court that he wished
to use the phone calls to show that Lundy had “pa[id] somebody off” in relation to the
murder, and “to prove that [Lundy] is capable of killing because she’s doing it at the jail
. . . she’s done it on the street, her violence.” The most concrete assertion that
Defendant made as to the relevance of the phone calls was that when Lundy inquired of
a friend, “Did you take care of that?” she was referring to a cover-up of the murder. After
allowing Defendant to examine the witness about the phone calls outside the presence
of the jury, the district court ruled that most of the proffered evidence was irrelevant. It
did, however, admit Lundy’s statement that she loved her husband and would “kill for”
him. When Defendant resumed his cross-examination of Lundy, he did not bring up that
statement, but continued to question Lundy about her involvement in the murder.

The district court is given wide latitude “to impose reasonable limits on . . . cross-
examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The right to
cross-examine witnesses does not give defendants carte blanche to cross-examine “in
whatever way, and to whatever extent, the defense might wish.” Id. (internal quotation
marks and citation omitted). The district court must maintain control over the
presentation of evidence to promote the efficiency and effectiveness of trial. Rule 11-
611(A) NMRA (“The court should exercise reasonable control over the mode and order
of questioning witnesses and presenting evidence so as to (1) make those procedures
effective for determining the truth, (2) avoid wasting time, and (3) protect witnesses from
harassment or undue embarrassment.”). In this case, the district court permitted
Defendant to cross-examine the witness at length on a wide variety of topics, some of
which went far beyond the scope of direct examination. Defendant could not explain
how the additional statements in Lundy’s jail calls were relevant to his case. We see no
error in the district court’s ruling to limit Defendant’s use of jail phone calls on cross-
examination.

E. Evidence That Defendant Possessed Methamphetamine When Arrested

Defendant claims that the district court erred by allowing the State to introduce
“bad acts” evidence: namely, that methamphetamine was found in Defendant’s wallet
when he was arrested. Uncharged bad acts may not be used to prove that a defendant
had the propensity to commit the crimes charged. Rule 11-404(B)(1) NMRA. However,
such evidence “may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident[,]” Rule 11-404(B)(2), as long as the probative value of the evidence outweighs
the danger of unfair prejudice, Rule 11-403 NMRA.

The district court allowed the State to introduce the evidence to show
Defendant’s motive to burglarize Victim’s home, and noted that Defendant had opened
the door by cross-examining multiple witnesses about their methamphetamine habits.
The district court did not abuse its discretion in ruling that the evidence was admissible
to prove motive. See State v. Padilla, 1994-NMCA-067, ¶ 17, 118 N.M. 189, 879 P.2d
1208 (holding that evidence of the defendant’s possession of a syringe was relevant to
motive for a robbery). Moreover, the evidence did not unduly prejudice Defendant
because, in his opening statement, he admitted that he was a methamphetamine user.
See id. (holding that evidence of drug use did not prejudice a defendant who informed
the jury by her own words “that she had been and was a drug user”).

F. Sufficiency of Evidence

“The test for sufficiency of the evidence is whether substantial evidence of either
a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable
doubt with respect to every element essential to a conviction.” State v. Montoya, 2015-
NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and citation omitted). “We do
not evaluate the evidence to determine whether some hypothesis could be designed
which is consistent with a finding of innocence,” nor do we “substitute our judgment for
that of the fact finder so long as there is sufficient evidence to support the verdict.” Id.
(alteration, internal quotation marks, and citation omitted). “Contrary evidence
supporting acquittal does not provide a basis for reversal because the jury is free to
reject [the d]efendant’s version of the facts.” Id. (internal quotation marks and citation
omitted).

Defendant contends that there was insufficient evidence of his identity to support
his murder conviction. Defendant directs our attention to the lack of fingerprints, and
contends that the positive evidence against him was unreliable. He argues, for instance,
that the water bottle containing his DNA could have been placed at the scene by
another person, and that “any one of” the witnesses who testified against him could
have been the shooter. Defendant’s attacks on the credibility of witnesses will not be
considered on appeal, as credibility determinations are the province of the jury. State v.
Riggs, 1992-NMSC-057, ¶ 17, 114 N.M. 358, 838 P.2d 975 (“The jury, and not this court
. . . resolves questions of credibility and the weight to be given to testimony.”). That no
fingerprints were discovered does not affect the sufficiency of the evidence, for the
simple reason that “an absence of evidence is not evidence of absence.” Truong v.
Allstate Ins. Co., 2010-NMSC-009, ¶ 42, 147 N.M. 583, 227 P.3d 73 (internal quotation
marks and citation omitted). That a third party could have planted the water bottle at the
crime scene is a defense theory that the jury was free to reject. Montoya, 2015-NMSC-
010, ¶ 52.

We have no difficulty reaching the conclusion that, based on the evidence
presented, a rational juror could have found beyond a reasonable doubt that Defendant
committed the murder. The evidence showed that Defendant possessed a rifle of the
same caliber used to kill Victim, and that he threatened someone with it on the same
day of the murder and just across the street from Victim’s home. Defendant’s DNA was
present on a water bottle found in Victim’s home. After the murder, Defendant drove
Victim’s truck, peddled Victim’s jewelry, and carried a pistol matching the description of
Victim’s stolen gun. Defendant recruited accomplices to use Victim’s stolen credit cards
and checks to commit additional crimes. Defendant admitted to multiple people that he
shot a woman after he broke into her home. Defendant drew a “treasure map” and
instructed his girlfriend where to find more of Victim’s stolen property. This evidence
was sufficient to establish Defendant’s identity beyond a reasonable doubt.

G. Cumulative Error

Defendant argues that cumulative error rendered his trial unfair. Having found no
error, there is “no error to accumulate.” State v. Trujillo, 2002-NMSC-005, ¶ 63, 131
N.M. 709, 42 P.3d 814. Defendant received a fair trial.

III. CONCLUSION

Defendant clearly invoked his right to self-representation when, without good
cause, he fired appointed counsel and demanded to be allowed to go pro se if another
attorney was not provided. He waived by conduct his right to counsel because the
district court conducted a full and thorough Faretta colloquy prior to allowing Defendant
to represent himself at trial. Defendant’s other arguments have no merit. We affirm.

IT IS SO ORDERED.

BARBARA J. VIGIL, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

JUDITH K. NAKAMURA, Justice

C. SHANNON BACON, Justice
DAVID K. THOMSON, Justice