STATE OF NEW MEXICO v. DORALL SMITH
NO. S-1-SC-34504
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
February 15, 2016
Opinion Number: ________
Ross C. Sanchez, District Judge
Jorge A. Alvarado, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM
for Appellant
Hector H. Balderas, Attorney General
Adam Hartley Greenwood, Assistant Attorney General
Santa Fe, NM
for Appellee
VIGIL, Chief Justice.
{1} Defendant Dorall Smith appeals his convictions for first-degree murder, contrary to
{2} We reject each of Defendant‘s claims of error and affirm his convictions for first-degree murder and criminal damage to property. While settled New Mexico law squarely controls nine of the ten issues Defendant raises on appeal, we proceed to render this opinion to clarify New Mexico‘s law regarding whether autopsy photographs of a murder victim‘s wounds are testimonial statements constituting hearsay banned under the Confrontation Clause. We hold that the autopsy photographs at issue in this case, depicting a murder victim‘s wounds, are not testimonial statements and thus do not implicate Defendant‘s Sixth Amendment right to confront this evidence against him.
I. BACKGROUND
{3} In the afternoon of September 1, 2010, Defendant saw Victim and her boyfriend Antonio Womack from across the street. Defendant walked towards them in a threatening manner, saying “what‘s up, bitch?” and “[y]eah, I‘m going to get you.” Defendant had previously been Victim‘s boyfriend and lived with her for four months. Upon seeing Defendant, Victim made a point of kissing Womack, presumably to make Defendant jealous.
{4} That night, Defendant planned to stay with childhood friend Electa Hart and her boyfriend Ashante Roberts. Defendant was wearing jeans but askеd to borrow a pair of Roberts’ shorts. Sometime that evening Defendant left Hart‘s apartment to hang out and drink with friends at Hart‘s brother‘s apartment. Around midnight, Defendant returned to Hart‘s apartment and borrowed her phone. Using Hart‘s phone, Defendant texted and called Victim repeatedly.
{5} The last call to Victim‘s phone came from Hart‘s phone at 3:40 a.m. on September 2, 2010. It appears Victim hid her cell phone under a stuffed animal in her room before going outside the apartment, presumably to meet Defendant. At around the same time a neighbor heard faint screaming and calls for help but thought nothing of it. Victim was stabbed approximately ninety times. The stab wounds included some to her cheek, sinus, ribs, and neck. As she tried to defend herself, she suffered additional lacerations on her arm. Most of the wounds were shallow and penetrated only the skin and underlying tissue, though some penetrated straight to the bone and skull. The most significant injuries were to her trachea, neck muscles, and external jugular vein. Victim bled significantly. And, as a detective testified, the attack was prolonged enough for her to move around, evidenced by multiple pools of blood. At one point the assailant may have walked away, only to return and attack again. The
{6} It was impossible for investigators to determine how long it took for Victim to bleed to death, but early that morning, before 5:00 a.m., a man on a paper route discovered Victim‘s body and called the police. Meanwhile, Defendant had returned to Hart‘s home, staining the shower mat in her bathroom with blood. At trial, the DNA expert testified that Victim could not be excluded as a donor to some of the blood samples taken from Hart‘s home.
{7} Later that morning, when Roberts asked Defendant what had happened to Defendant‘s jeans, Defendant said he had thrown them away. Defendant also had a large cut on his hand—which he claimed happened while he was fooling around with a knife—so Hart and Roberts took him to the hospital. On the way to the hospital, Defendant kept repeating, “Why do I keep thinking about this girl named [Victim‘s name]?” Just prior to his arrest, Defendant told a stranger at a convenience store that he had hurt his hand when he “got into it” with his girlfriend.
{8} Defendant was indicted on а first-degree murder charge and two charges of
{9} Numerous issues arose at trial, stemming primarily from the State‘s request to recalculate DNA evidence results. At the pretrial hearing on September 17, 2013, the State asked for a ten-day continuance of the trial because the State‘s DNA expert Donna Manogue had just informed the prosecutor that the DNA results for four samples from this case needed to be recalculated with different statistical ratios. Although Manogue had been issued a subpoena for this trial on August 19, 2013, she had not actually received it until September 16, 2013, resulting in the late notice. According to the prosecutor, Manogue believed that a memorandum had been sent to some prosecutоrs in May regarding the need to recalculate certain DNA results, but as of the date of the pretrial hearing this particular prosecutor had not received the mass-email notification. The prosecutor later confirmed that a mass-email was sent
{10} The trial court suggested commencing the trial and then delaying it for a couple of days to allow Manogue to complete her reanalysis and obtain peer review. Defense counsel considered whether she might need to consult an expert in order to completely understand the recalculations of the DNA evidence results, and indicated that she would prefer to proceed to trial with the original DNA calculations—but the trial court was concerned that using the original DNA results would deny due process to Defendant. Defense counsel, though, also indicated that if only the original DNA results were used at trial, she would use the recalculations of the DNA results for impeachment. Regardless, the prosecutor responded that Manogue was unwilling to testify based on the original, erroneous DNA calculations. The trial court ordered the prosecutor to call Manogue about expediting her reсalculation of the DNA results so that a continuance of the upcoming trial would not be necessary. The prosecutor complied, and Manogue agreed to expedite her recalculations.
{11} As a result of Manogue‘s efforts, the State was able to provide the recalculated results to Defendant that same day. At trial two days later, on September 19, 2013, defense counsel asked to interview Manogue about the DNA results. The next day, September 20, 2013, the parties discussed the issue again. Defense counsel once
{12} Upon discussing the matter with her supervisor over the weekend, Manogue indicated that she might be willing to testify just as to the results, and not the need for recalculating the original results—alleviating the problem by simply ignoring the four samples with DNA results that required recalculation. The issue was taken up once again in court on Monday, September 23, 2013. There, Manogue explained in detail why the results from four samples had been recalculated, thereby resulting in more accurate and, in her words, “conservative” results that favored Defendant. She also reiterated that she was uncomfortable with ignoring the recalculations. The
{13} The following day, September 24, 2013, the parties reconvened to address the defense‘s progress in retaining an expert. Defense counsel had made efforts, but the only available expert told her that he could not be ready for two weeks. The trial court asked for the expert‘s contact information and called him. The expert witness agreed to expedite the review. The trial court placed on the record that in speaking to the expert the trial court mentioned that “the accused had allegedly committed the
{14} On September 25, 2013, the parties continued discussing the defense expert‘s review of the DNA evidence, at which point defense counsel objected to the trial court having contacted the defense expert the previous day. The trial court, though, called the defense expert one more time, and the expert indicated over speaker phone that his analysis of the DNA evidence would be completed soon. On September 26, 2013, the trial court continued the trial to allow the defense expert to review the recalculations, anticipating a delay of approximately one week for the defense expert to be prepared.
{15} On October 2, 2013, the parties had yet another court conference on the matter, at which point the trial court ordered defense counsel to contact the defense expert and find out the status of his work. It was then determined that trial could resume in two days.
{16} Ultimately, defense counsel did not call her DNA expert witness to testify at trial. The State‘s expert, Manogue, testified that the recalculation made the DNA evidence slightly more favorable to Defendant. Defense counsel was able to
II. DISCUSSION
{17} We now address each of Defendant‘s ten claims of error.
A. There Was Sufficient Evidence of Deliberate Intent to Support a Rational Jury‘s Verdict of First-Degree Murder
{18} Defendant‘s first argument on appeal is that there was insufficient evidence to establish that he killed Victim deliberately. “Murder in the first degree is the killing of one human being by another without lawful justification or excuse . . . by any kind of willful, deliberate and premeditated killing.”
{19} Evidence is sufficient to sustain a conviction when there exists substantial evidence of a direct or circumstantial nature “to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Flores, 2010-NMSC-002, ¶ 2, 147 N.M. 542, 226 P.3d 641 (internal quotation marks and citation omitted). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Largo, 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation omitted). “In reviewing whether there was sufficient evidence to support a conviction, we resolve all disputed facts in favor of the State, indulge all reasonable inferences in support of the verdict, and disregard all evidence and inferences to the contrary.” Id. (internal quotation marks and citation omitted).
{20} “Deliberate intent may be inferred from the particular circumstances of killing as proved by the State through the presentation of physical evidence.” State v. Duran, 2006-NMSC-035, ¶ 8, 140 N.M. 94, 140 P.3d 515. Substantial evidence of deliberation can include “earlier confrontation[s] . . . or other common areas of friction leading to violence,” State v. Tafoya, 2012-NMSC-030, ¶ 52, 285 P.3d 604, or fleeing the scene, disposing of evidence, or concocting false alibis, Flores, 2010-NMSC-002, ¶ 22. This Court has previously determined deliberation in circumstances similar to those presented here. See, e.g., State v. Rojo, 1999-NMSC-001, ¶ 24, 126 N.M. 438, 971 P.2d 829 (determining deliberate intent from evidence that the method used to kill the victim took several minutes combined with evidence concerning the
{21} Defendant argues that the controlling authority should be this Court‘s opinion in State v. Garcia, where we concluded that evidence was insufficient to support a rational jury‘s finding of deliberation. See 1992-NMSC-048, ¶ 28, 114 N.M. 269, 837 P.2d 862. Defendant asserts that this was a crime of passion, much like the crime committed in Garcia. However, we consider Garcia to be factually dissimilar. The defendant in Garcia stabbed a victim during a fight. Id. ¶ 7. While that fight was the secоnd between the combatants that afternoon, and while the defendant could conceivably have formed a deliberate intent to kill in between the two fights, there was no evidence that such deliberate intent had actually been formed. See id. ¶ 30. Unlike Garcia, there is sufficient evidence in this case of Defendant‘s deliberate intent to kill Victim.
{22} First, here, Defendant had a motive to kill Victim given their past relationship and the threatening confrontation the day before the murder. Cf. Rojo, 1999-NMSC-001, ¶ 24 (discussing that evidence concerning defendant‘s motive for killing and method used to kill provides adequate support of deliberate intent). The cell phone records reveal that Defendant sought out Victim the same morning of the
{23} Further, evidence of Defendant‘s additional actions following the attack reveal deliberation sufficient to support his conviction for first-degree murder. He slashed the tires of the vehicles in Victim‘s driveway to prevent a rescue or getaway, and he concocted a story to explain his own knife wound. Cf. Flores, 2010-NMSC-002, ¶ 22 (discussing post-murder conduct, including use of a false alibi, as being probative of deliberation). In addition, the evidence in the instant case revealed that Defendant did not normally carry a knife, suggesting that Defendant deliberated based on his false alibi for the knife wound, and that he also entered Victim‘s home after the attack, supporting an inference that he intended to delete evidence from her cell phone. Id.
B. Trial Court Did Not Abuse Its Discretion by Allowing the State‘s Expert to Testify Regarding Recalculations of DNA Results, Even Though They Were Only Disclosed to Defendant the Day Prior to Trial
{24} A primary component of the State‘s case against Defendant for first-degree murder was forensic DNA evidence placing Defendant at the scene of Victim‘s murder. As mentioned, the State‘s DNA expert had not recalculated the statistical ratios for four DNA samples until the first day of trial. While the State‘s DNA expert had initially thought she could testify accurately by referring only to the DNA samples with results that did not need recalculation—i.e., those results that had been timely disclosed—it became apparent during trial that this was untenable. Not knowing the significance of the new DNA statistical ratios, as compared to the pre-recalculation ratios, defense counsel argued that expert consultation and potentially expert testimony at trial was now needed to make sense of those four recalculations.
{25} Defendant argues thаt the late disclosure of the recalculated statistical ratios is in violation of
{26} Defendant points to State v. Allison for this Court‘s determination that
[t]he articles regulating discovery are intended to eliminate unwarranted prejudice which could arise from surprise testimony. Discovery procedures enable the defendant to properly assess the strength of the state‘s case against him [or her] in order to prepare his [or her] defense. If a defendant is lulled into a misapprehension of the strength of the state‘s case by the failure to fully disclose, such prejudice may constitute reversible error.
{27} A trial court‘s ruling on late discovery is reviewed for an abuse of discretion. State v. Duarte, 2007-NMCA-012, ¶ 14, 140 N.M. 930, 149 P.3d 1027. “An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case.” State v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185 P.3d 363 (internal quotation marks and citation omitted). An abuse of discretion is a ruling that is “clearly untenable or not justified by reason.” Id. (internal quotation marks and citation omitted). If there are reasons both for and against a court‘s decision, there is no abuse of discretion. Id. It is a defendant‘s burden to establish that the trial court abused its discretion. State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20. This Court‘s standard for evaluating the trial court‘s decision to admit evidence disclosed for the first time at trial considers: “(1) whether
{28} We assume—but do not conclude—that the State breached its obligation under
{29} In support of a finding of prejudice from admission of the recalculated results, despite their favorable impact on Defendant‘s case, Defendant points to an Eighth Circuit case, United States v. Davis, 244 F.3d 666, 671 (8th Cir. 2001), involving a scenario where “[t]he government not only produced the DNA evidence a month late,
{30} First, there is no equivalent “reckless disregard,” making the analogy with Davis tenuous. Instead, the State missed a listserv email, conduct defense counsel described as prosecutorial negligence rather than recklessness. In the instant case, the recalculated DNA data was provided to Defendant the same day the report was made, Defendant was allowed to have expedited expert review of the data, and defense counsel had the opportunity to thoroughly cross-examine the State‘s DNA expert at trial after consulting with her own expert.
{31} Second, the effect of the recalculation was seemingly in favor of Defendant. The only difference postrecalculation was that some of the results had the
{32} We also note that “when a party has acted with a high degree of culpability, the severe sanctions of dismissal or the exclusion of key witnesses are only proper where the opposing party suffered tangible prejudice.” State v. Harper, 2011-NMSC-044, ¶¶ 19-20, 150 N.M. 745, 266 P.3d 25. Defendant does not make a plausible showing of prejudice by the delay, particularly where defense counsel was given the recalculated DNA results on the same day as the State. See id.
{33} Finally, the trial court appropriately cured the consequences of the untimely disclosure. When the trial court realized that there was no way around introducing the recalculated DNA results, it continued the trial proceedings for one week—just enough time to enable defense counsel to consult a DNA expert. Given that the defense expert‘s statements in an affidavit raised no concerns about short notice and expediting his review, and given that there was no prejudice to Defendant by
C. Trial Court Did Not Abuse Its Discretion by Communicating With the Expert That It Ordered Defense Counsel Obtain Midtrial
{34} The obvious confusion and uncertainty as to whether defense counsel would need to retain a DNA expert for trial was reasonable, given the late disclosure of the recalculated DNA evidence and the last minute change of the State‘s DNA expert‘s testimony. Defense counsel ultimately secured a DNA expert. By telephone outside the jury‘s presence, the trial court directly requested the expert to expedite his review of the evidence to minimize delay in the trial proceedings and emphasized the importance of the trial by mentioning that Victim suffered ninety stab wounds.
{35} Defendant takes issue with the trial court‘s intervention in this regard as well as its repeated requests for updates on the expert‘s review. The trial court ultimately denied Defendant‘s motion to declare a mistrial based upon the aforementioned intervention.
{36} Defendant now argues on appeal that the trial court committed reversible error in denying his motion for a mistrial, and that the conduct of the trial court unconstitutionally deprived him of effective assistance of counsel. Defendant points
{37} The cases upon which Defendant relies are distinguishable and thus inapplicable to the facts before us. In Prince, at issue were a limited quantity of samples for DNA testing. Id. The trial court in Prince ordered that the defendant and prosecution could each have half of the samples to test, and that each party could observe the other‘s tests of the physical DNA samples and have access to those results. Id. The appellate court determined that the defendant‘s inability to independently and confidentially test and review the DNA results was essentially court-ordered ineffective assistance of counsel, and issued an extraordinary writ reversing the trial court order. Id. The other case upon which Defendant relies involved court ordering of public funding of expert assistance to achieve effective assistance of counsel for an indigent defendant. Corenevsky v. Superior Court, 682 P.2d 360, 366-67 (Cal. 1984) (en banc). Because the facts in both of these California cases are distinguishable from the instant case their logic does not support Defendant‘s argument. See also Smith v. Halliburton Co., 1994-NMCA-055, ¶ 14, 118 N.M. 179, 879 P.2d 1198 (“[W]e are not bound by the law of other
{38} We now turn to Defendant‘s alternative grounds for challenging the trial court‘s denial of his motion for a mistrial arising from its attempt to expedite the DNA expert‘s analysis during trial. Again, we review the trial court‘s conduct for abuse of discretion. See State v. Gallegos, 2009-NMSC-017, ¶ 21, 146 N.M. 88, 206 P.3d 993; State v. Saavedra, 1985-NMSC-077, ¶ 11, 103 N.M. 282, 705 P.2d 1133, abrogated on other grounds by State v. Bellanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. Contrary to Defendant‘s assertions, the trial court did not order defense counsel to not speak privately with the expert. Here, the trial court urged defense counsel to timely consult and retain an expert. The trial court played no part in the substance or process of the expert‘s analysis. Instead, being understandably concerned about the timeliness of the analysis, the trial court properly inquired as to what documentation the expert might require from the State in order to complete his analysis as promptly as possible. See Belser v. O‘Cleireachain, 2005-NMCA-073, ¶
{39} In summary, the trial court‘s communication with the expert witness was simply procedural and not substantive, designed to assure compliance with quick deadlines so the trial could resume as soon as possible, and it did not unduly interfere with Defendant‘s right to have independent and confidential expert services. The trial court‘s decision to actively ensure Defendant‘s prompt—and private—consultation with an expert was justified by reason and was not contrary to any relevant New Mexico law. In its exercise of discretion, the trial court‘s actions were not “obviously erroneous, arbitrary, or unwarranted” or “clearly against the logic and effect of the facts and circumstances before [it].” State v. Alberico, 1993-NMSC-047, ¶ 63, 116 N.M. 156, 861 P.2d 192. We conclude that the trial court‘s conduct was not an abuse of discretion. See Gallegos, 2009-NMSC-017, ¶ 21; Saavedra, 1985-NMSC-077, ¶ 11.
D. Trial Court Did Not Err in Admitting Either the Testimony of the Supervising Pathologist or the Autopsy Photographs
{40} Defendant next argues that the pathologist testimony of Dr. Clarissa Krinsky
{41} Dr. Krinsky, a forensic pathologist and medical investigator for the New Mexico Office of the Medical Investigator was qualified to testify in this case as an expert in forensic pathology. Defendant takes issue with the fact that she testified but only supervised and oversaw a trainee pathologist in the execution of the autopsy. Both Dr. Krinsky and the trainee participated in generating the autopsy report, and both signed the report. Dr. Krinsky had final responsibility for the content of the report as she confirmed all statements originally drafted by the trainee and made significant changes to the report as needed. Thus, testimony in connection to the autopsy report, including the opinions she rendered, was her own, was made under oath, and was subject to cross-examination.
{42} Under the Confrontation Clause,
{43} This Court has previously held that under these circumstances a supervising pathologist may properly offer autopsy testimony without violating the Confrontation Clause. See State v. Cabezuela, 2011-NMSC-041, ¶ 52, 150 N.M. 654, 265 P.3d 705 (“[T]he record before us supports a reasonable inference that [the expert] had personal knowledge of and participated in making the autopsy report findings by virtue of her own independent participation in the microscopic exam, examination of the body and the injuries, and examination of all the photographs. Therefore, the
{44} Defendant also argues that autopsy photographs were testimonial and therefore should not have been admitted because “[a] document created solely for an ‘evidentiary purpose,’ . . . made in aid of a police investigation, ranks as testimonial.” Bullcoming, 131 S. Ct. at 2717 (internal quotation marks and citation omitted). But not all “material contained within an autopsy file is testimonial.” Navarette, 2013-NMSC-003, ¶ 22 (using photographs contained in an autopsy file as an example of materials on which an expert may provide opinion testimony independent of having
E. The State Did Not Elicit Prejudicial Bad-Acts Evidence
{45} We next address Defеndant‘s argument that the trial court erred by admitting bad-acts evidence—with respect to prior domestic violence between Defendant and Victim—despite an order in limine excluding such evidence. The State had agreed before trial that it would not present evidence of the previous domestic violence incidents between Defendant and Victim. Yet, at trial, the detective who investigated the murder and apprehended Defendant, Detective Landavazo, testified that he spoke with Victim‘s mother, and she “relayed . . . that there was an incident.” The State also asked if the detective had followed up on any leads regarding Defendant, and he replied that Victim‘s mother had told him “there was a report initiated.” The prosecutor said she was uninterested in a report. She only wanted the detective to explain how he located Defendant, to which the detective responded he had printed out a “picture of the only Dorall Smith there is in our system.” Defense counsel
{46}
{47} The content of the detective‘s testimony concerned how he came to apprehend Defendant, and the prosecutor attempted to steer him away from any reference to the prior domestic violence incident. Here, the potential extrapolation from the detective‘s testimony to a juror‘s inference of guilt by propensity was judged
{48} Additionally, during closing argument, the prosecutor said “we also know that [Victim] was sending mixed messages, and in a domestic violence relationship, sometimes that happens,” to which defense counsel objected. The trial court overruled the objection. We interpret the prosecutor‘s comments as a reference to Defendant‘s instant attack killing Victim, rather than the alleged domestic violence incident happening months before. In context, the prosecutor first told the jury: “The manner of the crime, 90 stab wounds was someone that wanted it to be painful for her. It wasn‘t stranger violence. It was domestic violence.” The prosecutor then discussed the afternoon prior to Victim‘s death, when Defendant threatened her, and characterized their relationship as one of domestic violence. As opposed to a propensity or bad-acts reference, it more likely was a reference to the failed nature of the relationship between Victim and Defendant—a relationship that was a key aspect
{49} We therefore conclude that there was no prejudicial abuse of discretion. Defendant was neither prejudiced by the prosecutor‘s characterization of the facts in closing argument, nor did the trial court abuse its discretion in overruling the objection. We hold that there was no error in admitting the evidence Defendant considers impermissible bad-acts evidence.
F. Trial Court Did Not Abuse its Discretion in Denying Motion for Mistrial Based on Improper Joinder
{50} Defendant next takes issue with the trial court‘s denial of his mistrial motion based on joinder of the charges against him for first-degree murder and criminal damage to property. We review the trial court‘s denial of the motion for mistrial for abuse of discretion, see Gallegos, 2009-NMSC-017, ¶ 21, and conclude there was no abuse of discretion because joinder was both proper and mandatory.
{51} Defendant argues first that “one test for abuse of discretion [for improper joinder] is whether prejudicial testimony, inadmissible in a separate trial, is admitted at a joint trial.” State v. Jones, 1995-NMCA-073, ¶ 3, 120 N.M. 185, 899 P.2d 1139.
{52} The New Mexico rules of criminal procedure require that similar offenses must be joined in one prosecution and not be brought piecemeal by way of sequential trials. See State v. Gonzales, 2013-NMSC-016, ¶ 25, 301 P.3d 380.
Two or more offenses shall be joined in one complaint, indictment or information with each offense stated in a separate count, if the offenses, whether felonies or misdemeanors or both:
- are of the same or similar character, even if not part of a single scheme or plan; or
- are based on thе same conduct or on a series of acts either connected together or constituting parts of a single scheme or plan.
{53} The joinder rule is met on these facts. What has been joined, though, could still be severed if a defendant would be prejudiced by testimony with respect to one
{54} Here, joinder was mandatory and Defendant was not thereby prejudiced. The State argued that Defendant stabbed Victim and then slashed the tires on the vehicles in her driveway. These were a connected series of acts. There was no evidence or argument that a different person might have slashed the tires, or that these incidents occurred at different dates or in different places. These acts were part of the same plan or scheme: Defendant stabbed Victim and disabled her most immediate means of escape trаnsportation. The criminal damage evidence, that the tires were slashed, would have been cross-admissible in a trial solely on the question of first-degree murder because it was evidence of deliberation: a purely passionate, impulsive attacker would not ordinarily methodically slash nearly every tire on the nearby
{55} The homicide evidence is crucial to understanding both the crime scene and explaining the activities of police, while the criminal damage evidence is crucial to demonstrating deliberation. Since the evidence in either case would be cross-admissible, we conclude that the evidence did not prejudice Defеndant and the trial court did not abuse its discretion by refusing to sever the two cases under
G. Defendant‘s Right to a Speedy Trial Was Not Violated
{56} Defendant next argues that the three-year delay, from indictment to trial, violated his constitutional right to a speedy trial. Defendant was indicted on September 21, 2010. Defendant was tried on September 17, 2013, approximately three years after his indictment. The State and Defendant agree that there were
{57} Defendant initially raised the speedy trial claim pro se after the trial was continued to allow for a competency evaluation. Though, defense counsel did not ultimately raise a speedy trial violation claim at trial because, other than the time for
{58} In determining whether a defendant‘s speedy trial right was violated, this Court has adopted the United States Supreme Court‘s balancing test in Barker v. Wingo, 407 U.S. 514 (1972). State v. Garza, 2009-NMSC-038, ¶¶ 9, 13, 146 N.M. 499, 212 P.3d 387. Under the Barker framework, courts weigh “the conduct of both the prosecution and the defendant” under the guidance of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the timeliness and manner in which the defendant asserted his speedy trial right; and (4) the particular prejudice that the dеfendant actually suffered. Garza, 2009-NMSC-038, ¶¶ 13, 32, 35 (internal quotation marks and citation omitted). “Each of these factors is weighed either in favor of or against the State or the defendant, and then balanced to determine if a defendant‘s right to a speedy trial was violated.” State v. Spearman, 2012-NMSC-023, ¶ 17, 283 P.3d 272.
{59} Relying on Garza, Defendant argues that the delay in this case of “intermediate complexity” is “presumptively prejudicial.” See 2009-NMSC-038, ¶¶ 2, 48
{60} As stated, the prejudice factor weighs heavily against Defendant and is outcome determinative. We analyzе prejudice to a defendant in a speedy trial case in light of three defense interests: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. ¶ 35. The third interest addresses the most serious type of prejudice, impairment of the defense. Barker, 407 U.S. at 532. In this case, Defendant‘s case was strengthened by the delay. New methods of DNA statistical analyses were implemented that increased the statistical probability that the DNA
H. Defense Counsel Was Not Ineffective
{61} Defendant next argues that defense counsel should have argued the aforementioned speedy trial violation with more vigor and obtained a DNA expert prior to trial, and thus counsel‘s failure to so do constitutes ineffective assistance.
{62} In order to establish a successful claim of ineffective assistance of counsel, a defendant is required to “first demonstrate error on the part of counsel, and then show that the error resulted in prеjudice.” State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. A prima facie case of ineffective assistance of counsel is made on appeal where: “(1) it appears from the record that counsel acted unreasonably; (2) the appellate court cannot think of a plausible, rational strategy or tactic to explain counsel‘s conduct; and (3) the actions of counsel are prejudicial.” State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (internal quotation marks and citation omitted); see also Bernal, 2006-NMSC-050, ¶ 32. “[A] prima facie case is not made when a plausible, rational strategy or tactic can explain the conduct of defense
{63} Defendant filed a pro se speedy trial motion, but defense counsel chose not to argue such a motion because she considered the delay to be “fairly standard among these kinds of cases.” Given the lack of prejudicial delay, and the potential benefit to Defendant from the recalculations that caused the delay, defense counsel cannot be said to have acted unreasonably in determining that a speedy trial motion was inappropriate at this point.
{64} Regarding failure to obtain an expert before trial, the record reveals that defense counsel believed that the State‘s expert would not testify as to the recalculated results since the other DNA results would havе been sufficient to make the State‘s case. This did not happen, but it was by no fault of defense counsel. Defense counsel‘s decision not to seek a DNA expert prior to trial was reasonable based on her estimation that the State‘s expert would only testify to the results of the original DNA evidence calculations. Further, Defendant was not prejudiced because defense counsel ultimately obtained an expert midtrial when it became clear the State‘s expert would testify about the recalculation results. At this time, we are not persuaded by Defendant‘s arguments that his defense counsel was ineffective, but we
I. Trial Court Did Not Abuse its Discretion in Denying Defendant‘s Multiple Motions for Mistrial
{65} Over the course of the trial, Defendant alleged numerous errors on the part of the trial court by filing two motions for a mistrial, and then a renewed motion for mistrial after the original two motions were denied. We have specifically addressed some of the merits of those motions in subsections B, C, D, and F of this opinion. We distill that there remain three additional issues raised in Defendant‘s motions for mistrial, and conclude that they are likewise without merit becаuse they do not constitute an abuse of discretion by the trial court. Regarding the wholesale denial of his mistrial motions, Defendant generally argues on appeal on three grounds: (1) “[t]he trial court‘s failure to grant a mistrial . . . [when] the trial had reached a point where it was ‘out of control’ . . . [because] the prosecutor was making comments about defense counsel,” (2) “the trial court ha[ving] recessed the jury for a lengthy time,” and (3) judicial impropriety by failure of the trial court to maintain decorum. We proceed to address each of these additional claims of error.
{66} A brief recitation of the relevant facts is necessary for thorough review. On September 23, 2013, defense counsel filed a motion for mistrial and for barring retrial of Defendant. The motion alleged facts regarding a joinder issue and facts regarding
{67} On September 24, 2013, defense counsel filed a second motion for mistrial and for barring retrial of Defendant. The new motion involved the DNA recalculations addressed in subsections B and C of this opinion. The motion argued that dismissal of the case or exclusion of the DNA evidence was the appropriate remedy for those alleged errors. It also urged the trial court to admonish the prosecutor “regarding her asides and unprofessional comments.” In arguing her mistrial motions to the trial court, defense counsel noted that the State had failed to provide to her a PowerPoint it had used for direct examination of a witness when she cross-examined the same witness, forcing her to use the photographs contained in the slides. Next, defense counsel raised the issue of prosecutorial misconduct, giving examples: (1) the
{68} Ultimately, defense counsel filed a renewed motion for mistrial and demand for recusal. The motion reiterated prior arguments and noted that the trial court had expressed “open irritation” with defense counsel and involved itself with defense
{69} “A motion for a mistrial is addressed to the sound discretion of the trial court and is only reviewable for an abuse of discretion.” Saavedra, 1985-NMSC-077, ¶ 11. “[T]he power to declare a mistrial should be exercised with the greatest caution.” State v. Sutphin, 1988-NMSC-031, ¶ 18, 107 N.M. 126, 753 P.2d 1314. An argument for mistrial must show that the error committed constituted legal error, and the error was so substantial as to require a new trial. See State v. Ferguson, 1990-NMCA-117, ¶ 4, 111 N.M. 191, 803 P.2d 676 (stating that legal error requiring a new trial must be “substantial enough to warrant the exercise of the trial court‘s discretion“). We hold that the trial court did not err in denying these motions for the reasons that follow.
{70} Taking the facts surrounding these motions cumulatively, we distill Defendant‘s residual arguments to be premised on alleged trial court error by allowing the trial to grow out of control, primarily due to prosecutorial misconduct and lengthy delay, thereby resulting in an atmosphere of judicial impropriety. Defendant argues that the trial grew so out of control that the trial court erred in denying his motions, see State v. Vallejos, 1974-NMCA-009, ¶ 26, 86 N.M. 39, 519 P.2d 135 (determining that the cumulative impact of a prosecutor‘s improper comments was so prejudicial that it deprived the defendants of a fair trial). The facts of this case do not reflect the level of prosecutorial misconduct in Vallejos, where (1) one defendant charged with battery on a police officer had no weapon, but a codefendant charged with aggravated assault on a police officer allegedly used a straight razor, and the prosecution displayed a butcher knife that could not be connected to either defendant; (2) the district attorney referred to an irrelevant shooting of a United States Senator to raise a conspiracy theory; and (3) the prosecutor in effect told the jury that defendants were guilty or he would not have brought them to trial. Id. ¶¶ 1, 8-17, 24. There, the cumulative impact was so prejudicial it deprived defendants of a fair trial. Id.
{71} Here, the trial court appropriately managed the trial and minimized the impact of a midtrial delay that was needed to benefit the defense. When viewing the three residual events Defendant urges this Court to deem as cumulative error under Vallejos—the prosecutor‘s comments about the defense counsel, the trial court recess, and the alleged overall judicial impropriety—we cannot come to the same conclusions as Defendant. Considering all the matters raised by Defendant in his motions for mistrial, the trial court‘s denial of said motions does not constitute an
J. Defendant Did Not Suffer Cumulative Error Requiring Reversal
{72} Finally, since the trial court‘s denials of Defendant‘s motions for mistrial were made within its sound discretion, sufficient evidence exists for a jury‘s finding of first-degree murder, Defendant was able to confront all evidence against him, trial delay did not constitute a speedy trial violation, and defense counsel was not ineffective on this record, there is no cumulative error requiring reversal under State v. Roybal, 2002-NMSC-027, ¶ 33, 132 N.M. 657, 54 P.3d 61 (“The doctrine of
III. CONCLUSION
{73} For the foregoing reasons, we affirm Defendant‘s convictions.
{74} IT IS SO ORDERED.
BARBARA J. VIGIL, Chief Justice
WE CONCUR:
PETRA JIMENEZ MAES, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice
JUDITH K. NAKAMURA, Justice, not participating