STATE OF NEW MEXICO v. MICHAEL PAUL ASTORGA
NO. 32,374
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
October 20, 2015
Stan Whitaker, District Judge
Opinion Number: ______________
v.
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge
Hector H. Balderas, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
David Henderson, Assistant Appellate Defender
Santa Fe, NM
for Appellant
KENNEDY, Judge.
{1} Michael Astorga (Defendant) stands convicted of the second-degree murder of Candido Martinez. At trial, the deposition of Adeline Martinez, the decedent‘s sister, was read to the jury. The deposition was taken by counsel for the State and Defense and used at trial without objection. Prior to the beginning of voir dire, Defendant‘s counsel, along with counsel for the State, met with the district court to discuss jury questionnaires from the first of apparently three jury panels summoned by the court for trial. Some members of the venire panel were excluded as exempt, some for cause, and the remainder appeared for voir dire and jury selection.
{2} Defendant argues that the district court erred by failing to inquire as to Defendant‘s waiver of his right to be present at the deposition of a witness and a portion of the jury selection. The parties are familiar with the facts,1 and for the sake of brevity in this opinion we present only such facts as are needed for our discussion of the issues.
A. We Review for Fundamental Error Only
{3} Defendant neither objected to the admissibility of the Martinez deposition testimony at trial, nor raised the issue of his presence when it was taken. He also did not assert any error from him not being present during the conference that preceded jury selection in his case.2 Defendant thus failed to preserve the issues for appellate review. See
{4} Fundamental error comprises a case-specific calculation. To prevail, Defendant must demonstrate that any error goes to the foundation of the case or takes away a right that was essential to the defense and “which no court could or ought to permit him to waive.” Id. (quoting State v. Garcia, 1942-NMSC-030, ¶ 25, 46 N.M. 302, 128 P.2d 459). Fundamental error is also a doctrine by which courts can “cut through procedure in order to protect the defendant‘s substantive rights[,]” Id. ¶ 15, by focusing “less on guilt and innocence and more on process and the underlying integrity of our judicial system.” Id. ¶ 16. In respect of judicial integrity, a mistake in
{5} The burden of demonstrating fundamental error is on the party alleging it, State v. Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176, and the standard of review for reversal for fundamental error is an “exacting” one. State v. Samora, 2013-NMSC-038, ¶ 17, 307 P.3d 328. Defendant must demonstrate prejudice from the errors he alleges; absent a showing of prejudice, Defendant cannot demonstrate error, let alone fundamental error, which we require for unpreserved claims. See State v. Fernandez, 1994-NMCA-056, ¶ 16, 117 N.M. 673, 875 P.2d 1104; see also In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.“). Here, our decision depends on whether the situations of which Defendant complains rise to the level of calling the process of the trial into question to an extent sufficient to hold that its result cannot be sustained on appeal. For the following reasons, we determine that they do not.
{6} On December 27, 2011, Ms. Martinez informed the State that owing to an acute medical condition, she would be unable to travel from Albuquerque to testify at Defendant‘s trial in Las Cruces. Defendant was informed of this situation by the State‘s motion for deposition. Ms. Martinez’ deposition was taken in Albuquerque upon the State‘s notice on Friday, January 6, 2012. The deposition proceeded without objection by either party, and was taken in her hospital room. Defense counsel was present, and participated by cross-examining the witness. The record is silent as to whether defense counsel ever sought to have Defendant attend the deposition, but Defendant does not allege that he was unaware of it.
{7} The admissibility of the deposition was addressed by counsel and the court prior to trial, in Defendant‘s presence, and no objection was raised then to its introduction, nor was there any mention that Defendant was not present at the deposition. Defendant objected based on relevance to Ms. Martinez’ testimony about bad blood between Defendant and her family because cross-examining the sources of her information was impossible. The objection was overruled. The parties worked out a stipulation for redacted contents of the deposition to be read to the jury, thus eliminating matters conceded by both sides to be prejudicial. Defendant was present
1. Purpose of the Deposition
{8} Ms. Martinez’ deposition was taken by the State for two purposes: her understanding of a long-festering dispute between the families of Defendant and the decedent, and if needed, her recollection that witness Rudy Contreras told her that Defendant had shot the decedent on the same night of the shooting at the hospital where she was attending the decedent. The district court ruled that Contreras’ statement would not be admissible at all absent his denying having made it during his testimony. Contreras denied the statement, and the deposition was used to impeach him. During his closing argument, Defendant referenced Ms. Martinez’ deposition and used it in an attempt to discredit Contreras‘s testimony.
{9} Ms. Martinez’ testimony impeaching Contreras’ denial of his comment to her at the hospital is not substantive evidence, and does not implicate the Confrontation Clause.3 See State v. Granillo-Macias, 2008-NMCA-021, ¶ 23, 143 N.M. 455, 176 P.3d 1187 (acknowledging that the Confrontation Clause extends only to persons
{10} Ms. Martinez’ substantive testimony presented her knowledge of family history as to bad blood between her brother and Defendant. The jury heard from Maez, Prieto, and Contreras that the ‘59 El Camino was a source of enmity between Defendant and decedent. Use of the deposition in this regard was cumulative, and of little weight for calculating fundamental error. State v. Crain, 1997-NMCA-101, ¶ 29, 124 N.M. 84, 946 P.2d 1095 (admission of objectionable testimony may be harmless when it is cumulative of other evidence); see State v. Lopez, 2000-NMSC-003, ¶ 21, 128 N.M. 410, 993 P.2d 727 (holding that where improper testimony was cumulative of testimony of three other witnesses, was harmless beyond a reasonable doubt).
{11} The two purposes for which the deposition was used do not indicate to us a defect in the proceedings that results from Defendant‘s absence that is so substantial as to call the integrity of the trial into question. Defendant‘s argument is that the district court erred “when it failed to make any inquiry whether [Defendant] waived his right to be present” during the deposition and a portion of jury selection.
{12} In this case, necessity dictated the deposition be taken; the parties had a month‘s notice from the witness that she would be unavailable for trial due to a medical condition that required her deposition be taken in hospital. The use of Ms. Martinez’ testimony was cumulative as to the history of Defendant‘s grudge against the decedent, and was cross-examined based on family hearsay. The use of Contreras’ prior inconsistent statement cannot form the basis for a confrontation violation, nor
{13} Because Defendant had notice of Ms. Martinez’ deposition, was fully represented at the deposition, did not object to its use at trial, and in fact used it in his defense, we hold that the district court did not err, when it did not inquire whether Defendant had waived his right to be present at Ms. Martinez’ deposition, although this case presents a cautionary example for both courts and defendants. Defendant has not carried his burden to establish the existence of fundamental error on this issue. We next address whether the district court erred in failing to inquire as to whether Defendant waived his right to be present during a preliminary stage of jury selection.
{14} Defendant next argues that the district court also erred in failing to inquire whether he had waived his right to be present at a conference between the district court and counsel that occurred in Albuquerque on Friday, January 6, 2012,4 preceding the commencement on the following Monday of jury selection for trial. As with the deposition question, Defendant does not directly allege that his rights to be present were violated, or that he was prejudiced. There is no indication in the record, for instance, that he was not informed by counsel of the proceedings, wished to be present, or otherwise suffered any prejudice from the lack of his presence. He does not seek to demonstrate any greater prejudice to his case than a simple alleged violation of his right to be present at a “critical stage” of the proceedings. When jurors appeared on Monday for voir dire examination and jury selection, Defendant was present. He simply states that it was error not to be asked by the trial court whether his presence at a conference to discuss juror qualification based on their questionnaires was something voluntarily waived. Again, since no error was preserved below, we review for fundamental error.
{15} We recognize that there are some rights that are so personal to the defendant that inquiry into a defendant‘s decision to waive them is necessary, such as the right
{16} The State relies on State v. Huff, 1998-NMCA-075, 125 N.M. 254, 960 P.2d 342, and State v. Sanders, 2000-NMSC-032, 129 N.M. 728, 13 P.3d 460, to the effect that the proceeding at which Defendant was not present was not voir dire, and not one in which he had an enforceable right to participate. The State asserts that the conference involved “the jury culling process” and therefore, the district court was not obligated to inquire after Defendant‘s waiver of presence. We first evaluate whether what occurred qualifies as jury “culling” under Huff and Sanders, and then address whether Defendant had a right to be present during the district court‘s conference with counsel.
{17} From our review of the transcript, it appears that the district court, the State, and defense counsel engaged in an on-record conference in chambers regarding the disqualification of a number of potential jurors from the first of three pools. The court and the parties had previously determined that voir dire would be conducted in groups of thirty prospective jurors in Las Cruces beginning the Monday following the conference. The purpose of the conference was to go through the juror questionnaires that had been received to determine, as a preliminary matter, which jurors on the panel were likely subject to challenge and excusal, and could be excused for cause and notified so they did not have to travel to Las Cruces. No jurors were present or questioned during this conference. Counsel were present, Defendant was not.
{18} During the conference, the district court went through a list it had prepared of “good strong challenges” for cause with the parties, and struck for cause fifteen panel members who, because of their questionnaire responses, generally fit into one—or more—of the following categories: those who had previously researched Defendant, the case, his previous convictions, and also had negative opinions of Defendant personally from this information; those who claimed religious proscriptions against service; one juror who had family members who had been murdered, and one who made statements of serious prejudice toward illegal immigrants. One other juror was
2. Culling is Not Voir Dire
{19} Defendant is correct that a criminal defendant has a constitutional right to be present at all critical stages of trial, see
B. The judge or the judge‘s designee shall submit questionnaires to prospective jurors to:
(1) obtain any information that will aid the court in ruling on requests for exemption or excuse from service or postponement of service;
(2) aid the court and the parties in voir dire examination of jurors or in determining a juror‘s qualifications to serve on a particular petit jury panel, trial jury or grand jury; or
(3) aid in the determination of challenges for cause and peremptory challenges.
{20} Defendant has registered no complaint about any of the jurors who were excluded, and was present for voir dire and selection of the trial jury. The process of voir dire where a defendant and his counsel are “face-to-face with the jurors,” attempting to read the reaction of jurors to the lawyer and client is the critical stage for which our Supreme Court recognized a right to the defendant‘s presence in State v. Garcia, 1980-NMSC-132, ¶ 15, 95 N.M. 246, 620 P.2d 1271. The weight of authority requiring a defendant‘s presence during jury selection is limited to the actual voir dire questioning of jurors where the value of a Defendant‘s presence “depend[s] upon the aid which, by his personal presence, he may give to counsel and to the court and triers in the selection of jurors.” Lewis v. United States, 146 U.S. 370, 373 (1892). In Lewis, the right of the defendant to be present recognized the value associated with face-to-face contact to facilitate the process of peremptory challenges, when challenges for cause had proven “insufficient to set aside the juror[.]” Id. at 376-77. Voir dire includes not only the introduction of the jurors to facts in the case, but subjects them to scrutiny by the court and parties of “not only spoken words but also gestures and attitudes of all participants to ensure the jury‘s impartiality.” Gomez v. United States, 490 U.S. 858, 874-75 (1989).
{21} Culling actually complements the voir dire process by narrowing the jury pool to more qualified candidates. The U.S. Supreme Court has recognized the value of juror questionnaires in performing initial screening of jurors in cases, such as this, where a large jury pool is involved. Skilling v. United States, 561 U.S. 358 (2010). In Skilling, the “[d]istrict [c]ourt initially screened venire members by eliciting their responses to a comprehensive questionnaire.” Id. at 388. The questionnaire “helped to identify prospective jurors excusable for cause and served as a springboard for
{23} Therefore, following Sanders, since questionnaires from the jurors can aid in preparing for either voir dire, or determining juror qualification to serve while also aiding “in the determination of challenges for cause,”
{24} We conclude that Defendant has failed to demonstrate any fundamental error, because a “fundamental error occurs where there has been a miscarriage of justice, the conviction shocks the conscience, or substantial justice has been denied.” State v. Cabezuela, 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 (internal quotation marks and citation omitted). Defendant has alleged no consequence from any error in not inquiring as to whether he waived his presence for the jury culling, and we have determined that under Sanders, he had no such right. Since Defendant fails to point us to any reason that the conference, and the exclusion of jurors that resulted from it, somehow contributed to his conviction or resulted in an unsound process that prejudiced his rights, we will not search for facts to support any such conclusion. See State v. Soutar, 2012-NMCA-024, ¶ 39, 272 P.3d 154. Indeed, the parties and the court removed only jurors whose bias against Defendant was readily apparent; jurors whose prejudice or bias was deemed equivocal were left for full questioning during voir dire.
This Appeal Is Not a Proxy for an Ineffective Assistance Claim
{25} To the extent that Defendant implicitly asserts that failure to object to use of the deposition testimony, or not insisting on his presence at the discussion preceding
II. CONCLUSION
{26} To the extent that Defendant was not present for Ms. Martinez’ deposition or the meeting between the trial court and counsel prior to jury selection, we observe no procedural or substantive defects in the process that rise to a level that would deprive Defendant of the fundamental fairness of the proceedings. As such, we find no fundamental error, and, together with the reasons given in the memorandum opinion filed herewith, affirm Defendant‘s convictions in the district court.
{27} IT IS SO ORDERED.
RODERICK T. KENNEDY, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
M. MONICA ZAMORA, Judge