STATE OF NEW MEXICO, Plaintiff-Appellee, v. DEREK GARCIA, Defendant-Appellant.
No. 30,852
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
January 16, 2013
BUSTAMANTE, Judge.
APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY, Drew D. Tatum, District Judge.
OPINION
BUSTAMANTE, Judge.
{1} Convicted of two counts of second degree criminal sexual contact of a minor (CSCM), Defendant appeals. We hold that the district court erred by concluding that a transcript of Defendant‘s police station interview would be too confusing for the jury, once it was redacted in a manner consistent with the court‘s in limine ruling, without first reviewing the redacted form of the transcript. However, we conclude that this error was harmless. We hold further that the district court erred by not conducting an in camera review of records Defendant sought in discovery. We remand for district court review of these records to determine (1) if any pоrtion of the records is material to the charges or the defense against them, and (2) if exclusion of material portions was prejudicial to Defendant. We are not persuaded by Defendant‘s other assertions of error.
BACKGROUND
{2} Defendant was the live-in boyfriend of Victim‘s mother, with whom he had three children, the oldest of whom was four years younger than Victim. Victim, who was eight years old, also lived in the home. In February 2009 Defendant was the caretaker of the four children while Victim‘s mother worked the night shift at a Burger King.
{3} On February 12, 2009, Victim reported at school to a Children, Youth and Families Department (CYFD) services provider that the night before, Defendant had touched her vaginal area when he was in her room. Victim was interviewed about the incident on February 17, 2009, by Hank Baskett, the executive director of Oasis Children‘s Advocacy Center, a forensic interviewing service, while Detective Todd Moore of the Portales Police Department and Investigator Janelle Pacheco of CYFD watched on a closed-circuit television from another room.
{4} The same day, after watching Victim‘s Oasis interview, Detective Moore and Investigator Pacheco went to Defendant‘s home, where they conducted an audio-recorded interview of Defendant. Defendant told Investigator Pacheco and Detective Moore that he had entered Victim‘s room the night of February 11, 2009, and did not mean to touch her inappropriately, but instead intended to “scoot her over in the bed.” The next day, February 18, 2009, Detective Moore conducted a second audio-recorded interview of Defendant at the police station with Investigator Pacheco present. The interview lasted about one hour. Prior to trial, the State prepared a written transcript of the interview.
{5} Defendant was found guilty, and а penitentiary sentence of thirty-one years, with nineteen years suspended, was imposed. Additional facts are included as needed in our analysis of Defendant‘s arguments.
ANALYSIS
{6} Defendant makes six arguments. He argues first that the district court abused its discretion when it refused to admit the transcript of the police station interview after it was used to refresh the memory of several witnesses. Next, he argues that the district
A. The District Court Abused Its Discretion in Excluding the Transcript of Defendant‘s Police Station Interview Without First Reviewing the Transcript in Redacted Form
{7} Defendant contends that because the State‘s witnesses mischaracterized his statements from the interview, he was entitled to introduce into evidence the full context of those statements pursuant to the rule of completeness embodied in
{8} The State argues that Defendant failed to preserve his argument that he had a right to admission of the transcript under
{9} The State also contends that because contents of the interview were admitted only through the testimony of the State‘s witnesses and Defendant, and no portion of the written transcript itself was actually introduced into evidence, the rule of completeness does not apply. See
{10} We conclude that where, as in this case, the State used the transcript extensively to ask about specific statements made by Defendant, thе contents of the transcript were “introduced” into evidence sufficiently to invoke
Most courts that have considered the question have held that using a writing to refresh the recollection of a witness is a sufficient use of the writing to trigger [
Fed. R. Evid. ] 106. Given that [Fed. R. Evid. ] 612 gives the opponent the powerto disrupt the proponent‘s case to inspect the writing, as well as the right to introduce parts of the writing into evidence, policy would seem to make this an easy case for the application of [ Fed. R. Evid. ] 10[6].2
Id. Under the circumstances, we would be placing form over substance if we required the physical writing itself to be introduced into evidence for
{11} Turning to the merits, we review a district court‘s ruling excluding evidence for an abuse of discretion. See State v. Lucero, 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143. To the extent our analysis requires interpretation of applicable rules of evidence, our review is de novo. State v. Moreland, 2007-NMCA-047, ¶ 9, 141 N.M. 549, 157 P.3d 728, aff‘d, 2008-NMSC-031, 144 N.M. 192, 185 P.3d 363. The applicable version of
{12} Defendant testified at trial on his own behalf. The State refreshed Defendant‘s recollection with the transcript multiple times during cross-examination. In fact, most of the State‘s cross-examination concerned Defendant‘s statements at the police station; the prosecutor often read specific questions and answers directly from the transcript and referenced specific pages and lines. At other times, the State asked questions of Defendant and requested that he locate the answers in the transcript. Indeed, at one point, the court recessed to allow Defendant time to review the entire transcript and count the occurrences of a given statement. Defendant maintained in his testimony that when he made the statements cited by the State he was talking about touches that occurred while play-wrestling with Victim, not inappropriate sexual touching. Since the State, Detective Moore, and Investigator Pacheco characterized Defendant‘s statements as “admissions,” there was a conflict in the testimony as to the meaning of those statements. Thus, the context of the statemеnts was relevant to Defendant‘s defense. In fairness to Defendant, the transcript, redacted as discussed below, should have been considered for admission by the district court under the rule of completeness.
{13} Here, however, the district court failed to properly consider Defendant‘s motion to admit the transcript. The district court may exclude even relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” {14} The district court denied Defendant‘s motion, stating that it would “stand by the ruling.” The ruling to which the district court referred was that the audio-recording of the interview would not be admitted because references to Victim‘s prior reports of sexual abuse, which were excluded by the State‘s pre-trial motion in limine, were “peppered” throughout and the redacted recording would be too confusing to the jury. Although the transcript was mentioned in argument before this ruling, the ruling was in response to Defendant‘s request for the transcript recording to be admitted under the best evidence rule. Thus, that ruling was not specific to the transcript in redacted form. {15} A district court‘s determination that potentially probative evidence should be excluded because it is too confusing must be based on an analysis of the evidence itself. State v. Aragon, 116 N.M. 291, 293, 861 P.2d 972, 974 (Ct. App. 1993) (“In order to exercise discretion properly, it follows that the facts and circumstances surrounding an issue must be sufficiently set forth to render a reasoned decision.“), overruled on other grounds by Tollardo, 2012-NMSC-008. Here, the record fails to establish that the district court ever reviewed the recording or transcript in a redacted form. Thus, the district court excluded the transcript without a proper basis on which to determine that the risk of confusion to the jury substantially outweighed its probative value in representing the context of Defendant‘s statements. This was an abuse of discretion. See Aragon, 116 N.M. at 293-94, 861 P.2d at 974-75 (concluding that the district court abused its discretion when it did not listen to an offered tape or allow the party to present an offer of proof before excluding the evidence). {16} Nevertheless, a new trial is not required. This Court has in the past remanded cases for a hearing on admissibility where the district court erred by not considering evidence properly and where exclusion of the evidence was not harmless. See id. at 295, 861 P.2d at 976. But here, remand for a hearing on the admissibility of the transcript is unnecessary because we have the transcript available to us and, after review of it, we conclude that even if it were admissible, the district court‘s failure to review and admit it was harmless. {17} The error here is non-constitutional. Barr, 2009-NMSC-024, ¶ 53 (“[W]here a defendant has established a violation of . . . court rules, non-constitutional error review is appropriate.“). “[N]on-constitutional error is reversible only if the reviewing court is able to say, in the context of the specific evidence at trial, that it is reasonably probable that the jury‘s verdict would have been different but for the error.” Id. ¶ 54. We “evaluate all of the circumstances surrounding the error. This requires an examination of the error itself, which . . . could include an examination of the source of the error and the emphasis placed upon the error.” Tollardo, 2012-NMSC-008, ¶ 43. Although it should not be the “singular focus of the harmless error analysis,” id., “evidence of a defendant‘s guilt . . . may often be relevant, even necessary, for a court to consider, since it will provide context for understanding the role the error may have played in the trial proceedings.” State v. Moncayo, 2012-NMCA-066, ¶ 16, 284 P.3d 423 (internal quotation marks and citation omitted). {18} We conclude after review of the transcript that there is no “reasonabl[e] probabil[ity] that the jury‘s vеrdict would have been different” if the transcript had been admitted. Barr, 2009-NMSC-024, ¶ 54. Defendant contends that “since [Defendant] maintained in his testimony that he had been talking about wrestling, denying the jury the ability to review what was actually said was an abuse {19} First, Defendant‘s statements are not clearly exculpatory even when read in the context of the transcript. At times in the interview Defendant maintained that the touches Victim complained of occurred when they were wrestling. He said, “Not even touching, I didn‘t even touch her” and “I don‘t touch” or “I don‘t touch” her at least four times. On the other hand, at one point Detective Moore told Defendant, “I‘m not talking about wrestling,” and shortly thereafter, Defendant said he touched Victim “on her butt” with his hands. Defendant declined to say that Victim was lying and said several times that Victim told him not to touch her in certain places or ways Defendant said that sometimes when Victim protested, she told him to “do that to [M]om.” {20} We review the transcript not to usurp the role of the jury in evaluating Defendant‘s statements, but to examine “whether [the] error was likely to have affected the[ir] verdict.” Tollardo, 2012-NMSC-008, ¶ 42 (stating that this question is the “central inquiry” of the harmless error analysis). In this case, although the transcript should have been considered under {21} The probable impact of the transcript is further diminished in light of the “non-objectionable evidence” adduced at trial. State v. Leyba, 2012-NMSC-037, ¶ 24, 289 P.3d 1215 (“To put the error in context, we often look at the other, non-objectionable evidence of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what role the error played at trial.“). Victim testified with specificity about the way Defendant touched her and demonstrated with props how Defendant touched her. She testified that Defendant had been drinking Budweiser with some guests before he touched her. The forensic interviewer testified about how forensic interviews are conducted with children so as to avoid leading questions and that he had conducted an interview with Victim. The drawings Victim made during the forensic interview showing the places on her body Defendant touched were admitted into evidence. The CYFD employee to whom Victim first reported the alleged inappropriate touching the day after it occurred testified as to what Victim told her and Victim‘s demeanor. She also testified that when she went to Defendant‘s home later that day, she observed beer bottles on the lawn, consistent with Victim‘s testimony that Defendant had been drinking Budweiser the night before, and that Defendant whispered, “What have I done?” after he and Victim‘s mother were informed of Victim‘s disclosure. Detective Moore and Investigator Pacheco testified about what Defendant said and did during their interviews with him, including his demeanor. Victim‘s grandmother testified that since the time of the alleged touching Victim had been “moody” and “aggressive” and her grades had dropped. {22} Defendant and Victim‘s mother testified for the defense. Victim‘s mother testified that she never observed inappropriate touching of Victim by Defendant while they were wrestling. She stated that Victim would get “real mad” when asked to do chores around the housе and that Defendant was the one who made sure Victim did them. She said that Victim participated in the wrestling matches with Defendant and “most often” initiated them. Defendant testified that he wrestled with Victim and the other children and that he went into the bedroom that night to check on the sleeping children. {23} Given that the transcript was not clearly exculpatory and considering it in the context of the other evidence, we cannot conclude that the district court‘s failure to consider the transcript for admission and consequent denial of Defendant‘s motion to admit it had an impact on the jury‘s verdict. {24} Defendant next argues that the district court erred by declining to order disclosure of CYFD records related to allegations by Victim before those lеading to this case. Defendant made a motion to compel the State to provide the materials because they were potentially exculpatory under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). The State opposed the motion and argued that: (1) the district attorney‘s office “is not the custodian of any CYFD records” and CYFD is not part of the “prosecution team“; (2) the records were confidential under {25} The district court denied the motion, stating that it was premature because Defendant had not subpoenaed CYFD to get the records. Defendant served CYFD with a subpoena duces tecum, but CYFD refused to comply immediately. Instead, pursuant to {26} The State maintained that Defendant “cannot establish relevance for apparent allegations that occurred PRIOR to the instant offense.” Defendant argued that “the defense needed to know the complete picture about the earlier allegations and interviews” and “that it was relevant whether [Victim] learned during those multiple interviews how to answer in such a way that her allegations would be given credence.” He argued that the CYFD records were relevant to “the credibility of the witness that the State must rely on in order to proceed to trial, [Victim].” The district court found that Defendant had a legitimate interest “only as to incidents related to [Defendant] and the charges alleged in the criminal information” and declined to order disclosure of any records not related to the present charges. The district court did not state the basis for this finding in either the order for disclosure or at the hearing on the matter. {27} “A trial judge‘s denial of a defendant‘s discovery requests will be reviewed according to an abuse of discretion standard.” State v. Bobbin, 103 N.M. 375, 377, 707 P.2d 1185, 1187 (Ct. App. 1985). In order for an abuse of discretion to be reversible, the defendant must demonstrate prejudice. State v. Desnoyers, 2002-NMSC-031, ¶ 25, 132 N.M. 756, 55 P.3d 968, abrogated on other grounds as stated in State v. Forbes, 2005-NMSC-027, 138 N.M. 264, 119 P.3d 144. The primary issue argued below was whether the records of allegations by Victim before those in the instant case were material to the charges or Defendant‘s defense. When a defendant has demonstrated “circumstances that reasonably indicate that records may contain information material to the preparation of the defense[,]” Ortiz, 2009-NMCA-092, ¶ 28, then “[t]he proper procedure to determine relevance is . . . in camera review [of the documents].” State v. Gonzales, 1996-NMCA-026, ¶ 20, 121 N.M. 421, 912 P.2d 297. When, as here, the materials sought are protected by statute, “[i]n camera review of confidential information represents a compromise between the intrusive disclosure of irrelevant information on the one hand and the complete withholding of possibly exculpatory evidence on the other.” State v. Luna, 1996-NMCA-071, ¶ 13, 122 N.M. 143, 921 P.2d 950. {28} “A general assertion that inspection of the records is needed for a possible attack on the victim‘s credibility is insufficient to [trigger in camera review].” Id. ¶ 9. But Defendant is not required “to know or show in advance that the records will actually contain helpful information.” Ortiz, 2009-NMCA-092, ¶ 28; see {29} Here, as in Pohl and Gonzales, Defendant had evidence suggesting that Victim had been interviewed a number of times by CYFD or Oasis and/or had made unsubstantiated allegations of sexual abuse in the past. Victim waved to the camera in the Oasis interview room and stated that she had been there before. Defendant also obtained a summary report of allegations from Victim‘s mother. This report showed that there had been allegations in 2002, 2003, 2004, 2006, 2008, and 2009 and that Victim had been interviewed about some of the allegations. It аlso indicated that some of the allegations were found to be unsubstantiated. Finally, since there was no physical evidence of abuse, the State‘s case rested entirely on the credibility of the witnesses. Thus, Victim‘s credibility as to both possible false accusations and learned ability to respond to interview questions was material to Defendant‘s defense. We conclude that Defendant made a threshold showing sufficient to trigger in camera review. {30} The State points to Luna, 1996-NMCA-071, and State v. Ramos, 115 N.M. 718, 858 P.2d 94 (Ct. App. 1993), modified on other grounds by State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1 as examples of cases in which this Court found no abuse of discretion where the district court had denied a defendant‘s motion for release of confidential or privileged documents. These cases are inapposite. In Luna, the district court ordered in camera review of the victim‘s psychotherapy records on motion by the defendant. 1996-NMCA-071, ¶¶ 3-4. The State initially did not object, but then “raised [an] objection that [the d]efendant had made an insufficient showing to justify . . . in camera review on the day of trial.” Id. ¶ 4. This Court acknowledged that the defendant‘s bare assertion that “it is likely that [the victim] revealed information to the therapist which may be relevant to issues of her credibility . . . may not have been sufficiently particularized or compelling to justify in camera review[,]” but did not decide this issue. Id. ¶ 10 (internal quotation marks omitted). Rather, it held that the district court‘s order was not an abuse of discretion because the State did not timely object and the defendant was prejudiced by the delay. Id. ¶ 11. In Ramos, the district court conducted an in camera review of the victim‘s psychotherapy records and found “that there was nothing in the records that justified their disclosure.” 115 N.M. at 721, 858 P.2d at 97. On appeal, the defendant argued that it was error not to order disclosure of the records directly to him because the records “may well [have] contain[ed] evidence of psychotic or hallucinatory behavior relevant to credibility.” Id. (internal quotation marks omitted). There, the issue was whether the district court erred in its determination that the records were not relevant after in camera review. In contrast, here the issue is whether Defendant made a threshold showing sufficient to require in camera review of the records. Neither Luna nor Ramos addresses this question. {31} The State next argues that, even if the records sought were material, Defendant “made no showing that the [district] court‘s refusal to grant him . . . access . . . denied him a defense or . . . fair trial or resulted in prejudice.” See Chacon v. State, 88 N.M. 198, 199-200, 539 P.2d 218, 219-20 (Ct. App. 1975) (“[N]ondisclosure of items material to the preparation of the defense is not reversible error in the absence of prejudice.“). The district court did not order disclosure of the records for in camera review and did not make a finding as to their relevance; consequently, they are not part of the record on appeal. Since we have no basis on which to assess prejudice, we cannot determine that there was no prejudice. Pohl, 89 N.M. at 525, 554 P.2d at 986 (“In the absence of a determination of what the files would have shown we cannot hold there was no prejudice.“) {32} We hold that Defendant made a threshold showing of materiality sufficient to require the district court to conduct in camera review. Therefore, the district court erred in ruling that Defendant did not have a legitimate interest in the records of previous allegations without assessing fully the relevance of those records through in camera review of them. We remand for in camera review of the records to determine (1) if any portion of them is material to the charges or defense and (2) whether exclusion of the records was prejudicial to Defendant. If the answer to both questions is yes, Defendant must be given a new trial. See Pa. v. Ritchie, 480 U.S. 39, 58 (1987) (remanding for review of а children and youth services file in camera and stating that if the file contains no “information that probably would have changed the outcome of [the] trial . . . the lower court will be free to reinstate the prior conviction“). We further note that the district court‘s ruling in this matter will be subject to appeal. {33} We turn next to Defendant‘s argument “that the [district] court‘s refusal to allow the defense to introduce evidence of [Victim]‘s prior CYFD contacts was an abuse of its discretion that resulted in deprivation of his constitutional rights to confrontation and due process of law.” The State argues that “Defendant waived this issue for appeal” because he “did not oppose the State‘s motion [in limine to exclude such evidence]” and that, even if the issue were not waived, prior allegations by Victim were irrelеvant. Defendant does not address waiver or preservation of this argument in his briefs. We conclude that this issue is not properly before this Court either because Defendant waived his right to appeal exclusion of the evidence by failing to file a notice of intent to admit the prior allegations as required by {34} We begin by noting that analysis of whether evidence covered by our “rape shield statute,” {35} Defendant did not argue against the State‘s motion in the hearing on the matter. In fact, Defendant stated at the motion hearing that he “had not anticipated soliciting that type of information anyway.” Although he also stated that “if it comes up, I guess that will be addressed[,]” the district court reiterated that it should not come up in front of the jury, and Defendant did not object further. The State‘s motion was predicated on {36} In spite of this acknowledgment by the district court, Defendant never filed the required notice under {37} Even if Defendant‘s conduct vis á vis the motion in limine or {38} “[A] sufficiency of the evidence question involves a two-step process.” State v. Armendariz-Nunez, 2012-NMCA-041, ¶ 16, 276 P.3d 963, cert. denied, 2012-NMCERT-003. “Initially, we view the evidence in the light most favorable to the verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the vеrdict[.]” Id. The next step requires that we “make a legal determination of whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been established beyond a reasonable doubt.” Id. (internal quotation marks and citation omitted). {39} The jury was instructed with identical instructions for both counts as follows: For you to find [D]efendant guilty of criminal sexual contact of a child under the age of [thirteen] as charged in Count 1, [replaced with Count 2 in second instruction], the [S]tate must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime: {40} We have examined the evidence in detail and conclude that it is sufficient to permit retrial if the district court concludes that one is necessary following its in camera review of the records of previous allegations. Although most of the evidence related to February 11, 2009, Victim also testified that Defendant had touched her inappropriately prior to that incident. Victim testified that February 11, 2009, was not the only time that Defendant had touched her “private parts” and that it had started when her mother began work at Burger King in June. Defendant‘s testimony also supported an inference by the jury that inappropriate touchings had occurred on more than one occasion in the specified time period because Defendant stated during cross-examination that he had told Detective Moore in the interview that “the inappropriate things had been going on between [him and Victim] about a week.” Detective Moore also testified that Defendant said he had touched Victim inappropriately “twice within the last week.” {41} Under our standard of review, sufficient evidence was presented for the jury to conclude that Defendant “touched or applied force to the unclothed buttocks and/or vagina” of Victim both on the night of February 11, 2009, and on another occasion between January 1, 2009, and February 12, 2009. The lack of testimony pinpointing a specific date on which the other incident of CSCM occurred does not preclude a finding by the jury that two incidents of touching occurred based upon the evidence presented. See State v. Altgilbers, 109 N.M. 453, 471, 786 P.2d 680, 698 (Ct. App. 1989) (stating that “[n]o juror need have a precise day in his or her own mind in order to vote for conviction” for purposes of a sufficiency of the evidence analysis and concluding that sufficient evidence supported verdicts in spite of the lack of evidence of specific dates of the occurrence of criminal sexual aсts). Accordingly, should a new trial be required following in camera review of the CYFD records, Defendant‘s right to be free from double jeopardy will not be violated by retrial on both counts of CSCM. {42} The district court denied Defendant‘s motion to suppress his statements at the February 18 interview at the police station. Defendant argues first that “he felt coerced in [the] interview” and then “that the [district] {43} It is not entirely clear whether Defendant‘s argument is that his statements were involuntary (because they were coerced) and, therefore, that they violated his right to due process under the Fourteenth Amendment, or that his statements violated his Fifth Amendment rights because he did not voluntarily, knowingly, and intelligently waive his Miranda rights. See State v. Fekete, 120 N.M. 290, 298, 901 P.2d 708, 716 (1995) (“A claim that the police coerced a statement requires a different analysis than a claim that an accused voluntarily waived his or her Fifth Amendment protections under Miranda.“); {44} We first address whether Defendant‘s due process rights were violated. We review whether a statement was voluntarily given by assessing the totality of the circumstances. State v. Munoz, 1998-NMSC-048, ¶ 23, 126 N.M. 535, 972 P.2d 847. In order to determine that a statement was involuntary, we must also conclude that the statement was the result of police misconduct. Id. ¶ 21. “[I]ntimidation, coercion, deception, assurances, or other police misconduct . . . constitutes overreaching . . . [and] requires that the [statements] be excluded.” Id. ¶ 23. Here, Detective Moore asked Defendant during the February 17 interview to come to the police station the next day. He stated, “I would like for you to come to the [p]olice [d]epartment. Not . . . it don‘t [sic] have to be right now but tomorrow would be good.” Defendant responded, “Tomorrow, what time?” When Defendant stated that he didn‘t have a way to get to the police station, Detective Moore offered to pick Defendant up or have someone else pick him up. Defendant responded, “That will be fine.” This conversation occurred while Defendant, Detective Moore, and Investigator Pacheco were standing in front of Defendant‘s home. {45} Defendant was transported to the police station by another detective. He testified that the detective placed his duty weapon on his lap during the ride. The detective testified in contrast that he did not remember where exactly his weapon was during the ride, but that “it would not have been in plain sight.” At the police station, Detective Moore interviewed Defendant while Investigator Pacheco observed. Detective Moore began by telling Defendant “You have not been charged with anything. You are not under arrest, in fact, . . . basically you are free to go anytime that you want. . . . [Y]our rights do apply, even though you are not in custody or anything, you still have the right to remain silent.” He then told Defendant he would “read . . . the rights that you hear on [TV]” and recited the Miranda warnings. [State‘s Ex. 3, 2:12-19] Defendant indicated that he understood. [Id. Ln. 20] Detective Moore presented Defendant with the waiver form, reviewed it orally, and stated, “Again, if you don‘t want to talk to me that is fine, that‘s[,] you know, well within your rights, and you are free to go at any time.” Defendant responded, “[O]K,” and signed the waiver form. The interview lasted approximately one hour. During the interview, Deteсtive Moore told Defendant that Victim was not lying and implied that Defendant was not being truthful. Nonetheless, nothing in the way the interview was conducted amounts to “intimidation, coercion, deception, assurances” or overreaching such that Defendant‘s due process rights were violated. {46} We turn next to whether Defendant‘s Fifth Amendment rights were violated. “[W]e review the [district] court‘s findings of fact for substantial evidence and review de novo the ultimate determination of whether a defendant validly waived his or her Miranda rights prior to police questioning.” State v. Barrera, 2001-NMSC-014, ¶ 23, 130 N.M. 227, 22 P.3d 1177. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Id. (internal quotation marks and citation omitted). We have already addressed the first component. “‘[V]oluntariness’ in the context of a Miranda waiver means the same thing as ‘voluntariness’ in the due process context, i.e., freedom from official coercion.” Miller, 838 F.2d at 1538. Having determined that there was no official coercion in the arrangements for or conduct of the interview, we conclude that Defendant‘s waiver of his rights under Miranda was voluntary. See Fekete, 120 N.M. at 301, 901 P.2d at 719 (stating that since the due process analysis revealed that there wаs no evidence of intimidation or coercion, the “inquiry focuses on the second element of the waiver“). {48} The remaining question is “whether [Defendant] was fully aware both of the nature of the rights he waived and the consequences of the waiver.” Id. Defendant had several opportunities to indicate that he did not understand the nature and consequences of the waiver. After Detective Moore read the rights to Defendant, he asked, “Do you understand all that?” Defendant responded, “Yep.” Detective Moore then reviewed the waiver form, on which were printed the Miranda rights. He explained, “[T]his is a wa[iv]er just saying that you read the statement about my rights and I understand what my rights are” and “by signing this, this is just signing a wa[iv]er saying that you understand your rights and you are willing to talk. Okay?” Defendant responded, “[O]K.” On appeal, Defendant does not direct us to specific evidence that his waiver was not knowing and intelligent. Thus, we conclude that the district court did not err in denying Defendant‘s motion to suppress. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318 (“The question is whether the [district] court‘s decision is supported by substantial evidence, not whether the court could have reached a different conclusion.“). {49} “Under the doctrine of cumulative error, this Court must reverse a conviction when the cumulative impact of the errors [that] occurred at trial was so prejudicial that the defendant was deprived of a fair trial.” Baca, 120 N.M. at 392, 902 P.2d at 74 (alteration in original) (internal quotation marks and citation omitted). “Several errors that would in themselves be harmless may together create reversible error if they deprived the defendant of a fair trial.” State v. La Madrid, 1997-NMCA-057, ¶ 24, 123 N.M. 463, 943 P.2d 110. “This doctrine is to be strictly applied, and [Defendant] cannot invoke it if the record as a whole demonstrates that he received a fair trial.” State v. Woodward, 121 N.M. 1, 12, 908 P.2d 231, 242 (1995), abrogated on other grounds as recognized in State v. Granillo-Macias, 2008-NMCA-021, 143 N.M. 455, 176 P.3d 1187. {50} Defendant argues that “the cumulative net effect of these errors was a denial of a defense.” The district court‘s failure to review CYFD‘s materials in camera was error, but that error is reversible only if it was prejudicial. If so, Defendant will receive a new trial. In addition, any error in failing to admit the transcript of the police interview was harmless. Defendant‘s other assertions of error are not only not reversible, but are {51} We remand for an in camera review of the CYFD records Defendant sought through discovery consistent with this opinion. {52} IT IS SO ORDERED. MICHAEL D. BUSTAMANTE, Judge WE CONCUR: CYNTHIA A. FRY, Judge MICHAEL E. VIGIL, JudgeB. The District Court Erred in Failing to Conduct an in Camera Review of CYFD Records Sought by Defendant
C. Defendant Failed to Preserve His Arguments as to the District Court‘s Grant of the State‘s Motion in Limine
D. Sufficient Evidence Supported the Jury‘s Findings That Defendant Committed Two Counts of CSCM
E. The District Court Did Not Err in Denying Defendant‘s Motion to Suppress
F. Cumulative Error
CONCLUSION