365 P.3d 53
N.M. Ct. App.2015Background
- Defendant Michael Astorga convicted of second-degree murder; on appeal he challenged two absences: (1) he was not present at the deposition of Adeline Martinez (taken in hospital) and (2) he was not present at an on-record conference where the court and counsel reviewed juror questionnaires to "cull" the venire before voir dire.
- Martinez’s deposition was noticed by the State after she became medically unavailable; defense counsel attended, cross-examined, and later used portions of the deposition at trial without objection.
- The court and counsel met (Defendant not present) to review juror questionnaires and excused about fifteen prospective jurors for cause or statutory reasons before voir dire; remaining jurors were subjected to in-court voir dire with Defendant present.
- Astorga did not object at trial to admission of the deposition or to his absence from the pre-voir dire conference; he raised these issues for the first time on appeal.
- The Court of Appeals reviewed both unpreserved claims only for fundamental error and found no prejudice or process defect sufficient to require reversal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/use of Martinez’s deposition and Defendant’s absence from that deposition | State: Deposition was necessary (witness medically unavailable); defense counsel attended, cross-examined, and used it; admitted for impeachment/non-hearsay purposes | Astorga: Court should have inquired whether he waived his right to be present at the deposition; his absence violated his rights | Held: No fundamental error. Deposition used largely for impeachment and cumulative family-history evidence; Defendant had notice, was represented, used the deposition at trial, and asserted no prejudice. |
| Right to be present at pre-voir dire juror-qualification conference ("culling") | State: The conference was administrative culling based on questionnaires; defendant has no statutory right to attend that process | Astorga: Court should have asked whether he waived his right to be present; absence from a critical stage of jury selection denied his rights | Held: No fundamental error. Culling is an administrative screening (permitted by statutes on questionnaires) distinct from face-to-face voir dire; Defendant need not be present for culling and suffered no shown prejudice. |
| Whether non-objection equates to waiver of confrontation/right to be present | State: By not objecting and by using the deposition at trial, Defendant implicitly waived objections to absence | Astorga: Contends absence should have been affirmatively waived by inquiry | Held: No error. Tactical decisions by defense counsel (attending, cross-examining, using deposition) and lack of contemporaneous objection amount to waiver and negate fundamental-error relief. |
| Whether claimed errors should be considered via ineffective-assistance framework | State/majority: Improper trial strategy claims are for habeas/ineffective-assistance proceedings, not for invoking fundamental error on direct appeal | Astorga: Impliedly suggests counsel’s inaction was defective | Held: Court declines to treat these direct-appeal arguments as substitute for ineffective-assistance claims; such claims are better raised in post-conviction proceedings. |
Key Cases Cited
- Lewis v. United States, 146 U.S. 370 (recognizes defendant’s presence value during jury selection for face-to-face evaluation)
- Gomez v. United States, 490 U.S. 858 (distinguishes face-to-face voir dire from administrative empanelment processes)
- Skilling v. United States, 561 U.S. 358 (approves use of questionnaires as initial juror screening tool combined with later face-to-face voir dire)