State v. Lopez

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: ___________

3 Filing Date: July 28, 2017

4 NO. 34,615

5 STATE OF NEW MEXICO,

6 Plaintiff-Appellee,

7 v.

8 FABIAN LOPEZ,

9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY
11 Stephen K. Quinn, District Judge

12 Hector H. Balderas, Attorney General
13 Laura E. Horton, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16 Bennett J. Baur, Chief Public Defender
17 J.K. Theodosia Johnson, Assistant Appellate Defender
18 Santa Fe, NM

19 for Appellant
 1 OPINION

2 GARCIA, Judge.

3 {1} Defendant, Fabian Lopez, was convicted of aggravated battery with a deadly

4 weapon, following a workplace altercation. Defendant raises multiple issues on

5 appeal, including whether the over two hundred day delay between conviction and

6 sentencing violated due process. As an issue of first impression, we conclude that

7 Defendant failed to show prejudice and that no due process violation occurred. On

8 Defendant’s remaining arguments raised on appeal, we hold that there is no reversible

9 error. As such, we affirm Defendant’s conviction.

10 BACKGROUND

11 {2} In February 2011, Saul Montano (Victim or Mr. Montano) and Defendant both

12 worked at the Midway Dairy in Portales, New Mexico. Defendant speaks very little

13 Spanish and Mr. Montano speaks very little English. On February 13, 2011, the two

14 men engaged in an altercation which seemingly resulted from their limited

15 proficiency in the language spoken by the other party. While the two men were

16 working, they began verbally arguing and at first, Jesus Acosta, a witness to the

17 altercation, believed the two men were just kidding around. Mr. Acosta testified that

18 a third person was mistranslating what Defendant and Mr. Montano were saying to

19 each other. Defendant testified that he believed that Mr. Montano was gay and was
 1 trying to come on to him, saying “open [your] butt hole.” Mr. Montano testified that

2 he said to Defendant “make way asshole” while trying to get by him in the dairy.

3 Defendant became furious and he yelled at Mr. Montano that he was not gay. The two

4 men went outside and both men testified that the other threw the first punch. They

5 scuffled for a few minutes and Defendant ended up on the ground. Defendant testified

6 that he had his shirt over his head, which caused him to panic. Mr. Montano admitted

7 that he was going to continue to punch Defendant, but Defendant pulled a knife out

8 of his boot. Defendant then stabbed Mr. Montano one time in his upper leg near his

9 buttocks.

10 {3} State Police Agent Noe Alvarado was dispatched to the home of Mr. Montano,

11 where he was receiving medical attention from paramedics. Agent Alvarado then

12 went to the dairy to speak with Defendant, where Defendant’s wife gave Agent

13 Alvarado the knife used in the altercation. Defendant admitted to Agent Alvarado that

14 he had an argument with and then stabbed Mr. Montano.

15 PROCEDURAL HISTORY

16 {4} Defendant was arrested and then released on bond on February 16, 2011, and

17 remained out on bond during the entirety of the proceedings. A preliminary hearing

18 was held in Roosevelt County Magistrate Court on April 13, 2011. On April 14, 2011,

19 the State filed a criminal information charging Defendant with aggravated battery

2
 1 with a deadly weapon, pursuant to NMSA 1978, Section 30-3-5(A), (C) (1969), and

2 attached a list of witnesses for trial, including Agent Alvarado and Mr. Montano. On

3 June 24, 2011, the State filed a second witness list adding Mr. Acosta with his

4 address as the Midway Dairy in Portales.

5 {5} A hearing was held on August 19, 2011, regarding Defendant’s motion for

6 discovery. The State notified the district court that discovery had been available on

7 the database since April 28, 2011. Defendant filed a motion to suppress Mr.

8 Montano’s testimony on September 9, 2011, claiming the State failed to produce the

9 “alleged victim” for an interview. The district court held a hearing on Defendant’s

10 motion on December 9, 2011. The State argued that it had set up two courtesy

11 interviews with Mr. Montano but that he did not show up to either. The district court

12 instructed Defendant to subpoena Mr. Montano and if then he did not appear, it

13 would consider suppressing his testimony. Defendant issued a subpoena for an

14 interview with Mr. Montano at his New Mexico address on December 16, 2011.

15 However, service was not completed because Mr. Montano had moved to Buckeye,

16 Arizona, a fact noted in the State’s supplemental witness list filed on December 13,

17 2011.

18 {6} Trial was scheduled for September 18, 2012, but Defendant filed a motion to

19 continue that setting, agreeing to waive time until the next setting. Defendant’s

3
 1 motion was granted. Defendant renewed the motion to suppress Mr. Montano’s

2 testimony on September 18, 2012. Trial was rescheduled for October 17, 2012. At the

3 docket call on October 9, 2012, Defendant realized that the December 2011 subpoena

4 was served to Mr. Montano’s prior address. The State and Defendant filed a joint

5 motion to continue the October 2012 trial setting in an attempt to get Mr. Montano

6 to New Mexico for an interview, agreeing that the delay in time would count against

7 the State.

8 {7} On May 13, 2013, Defendant did not appear for the scheduled docket call and

9 a bench warrant was issued. The bench warrant was later quashed, and Defendant

10 notified the district court that his son had been in the hospital. At the hearing, defense

11 counsel indicated that she had interviewed Mr. Montano by phone. On October 17,

12 2013, Defendant filed a motion to continue the next scheduled pretrial conference,

13 agreeing to waive the time limits until the next setting. The trial was again

14 rescheduled for March 26, 2014.

15 {8} Following a jury trial, Defendant was convicted of aggravated battery with a

16 deadly weapon on March 26, 2014. The district court ordered a pre-sentence report

17 from adult probation on October 20, 2014. A supplemental criminal information was

18 filed by the State, and the district court sentenced Defendant as a habitual offender,

4
 1 pursuant to NMSA 1978, Section 31-18-17 (2003) with one year to serve and three

2 years suspended. This appeal followed.

3 ANALYSIS

4 {9} Defendant makes the following arguments: (1) the delay in holding

5 Defendant’s sentencing hearing violated Defendant’s right of due process; (2) defense

6 counsel provided ineffective assistance of counsel by failing to assert Defendant’s

7 right to a speedy trial; (3) the district court erred in allowing the witness, Mr. Acosta,

8 to testify because the State failed to disclose his address; and (4) the district court

9 made several errors that denied Defendant a fair trial, including holding the trial at

10 the Yam Theater and admitting certain testimony by Agent Alvarado as well as the

11 photographs of the knife used in the altercation. Finally, Defendant argues that the

12 cumulative impact of the errors at trial was so prejudicial that he was denied a fair

13 trial and reversal is required.

14 I. Due Process in Delayed Sentencing

15 {10} The New Mexico appellate courts have on several occasions analyzed cases

16 where defendants have faced delays in the imposition of a sentence or in the

17 enforcement of a sentence. See e.g., State v. Calabaza, 2011-NMCA-053, ¶¶ 19-22,

18 149 N.M. 612, 252 P.3d 836 (analyzing whether the thirteen-month delay between

19 this Court’s mandate to the district court and the eventual sentencing violated the

5
 1 defendant’s right to a speedy trial and due process); State v. Brown,

2 2003-NMCA-110, ¶ 9, 134 N.M. 356, 76 P.3d 1113 (involving a case where the

3 defendant argued that “his right to a speedy trial was violated by a delay of twenty

4 months from the time this Court reversed one of his trafficking convictions and

5 remanded the case for re-sentencing until [the d]efendant was actually re-sentenced”).

6 In State v. Todisco, the defendant argued that such a delay violated his right to a

7 speedy trial under the Sixth Amendment of the United States Constitution and this

8 Court, relying on past guidance from the United States Supreme Court, assumed that

9 the Sixth Amendment right to a speedy trial extended to the sentencing phase of a

10 criminal proceeding. 2000-NMCA-064, ¶ 16, 129 N.M. 310, 6 P.3d 1032 (citing to

11 Pollard v. United States, 352 U.S. 354, 361 (1957)). This Court then “[assumed]

12 without deciding, that the [Sixth Amendment] speedy trial right [can be applied to

13 delays in] sentencing proceedings” and applied the factors set forth in Barker v.

14 Wingo, 407 U.S. 514, 530 (1972) to analyze the defendant’s claim of an excessive

15 delay in the trial court’s imposition of a sentence. Todisco, 2000-NMCA-064, ¶¶ 16,

16 19.

17 {11} In Calabaza, this Court reasoned that, although the Barker factors may be valid

18 considerations when the issue addressed is speedy sentencing, we did “not believe the

19 guidelines [were] . . . specifically applicable in the speedy enforcement context.”

6
 1 Calabaza, 2011-NMCA-053, ¶ 11. The defendant in Calabaza, in addition to speedy

2 trial claims, also argued a violation of due process in the delay that occurred in the

3 imposition of his sentence. Id. ¶ 12. This Court, in looking to similar cases where

4 there was a delay not in the sentence hearing itself but in the imposition of a

5 defendant’s sentence, looked to the “totality of the circumstances.” Id. ¶ 19. These

6 circumstances include the following:

7 the length of the delay and the nature of the defendant’s circumstances
8 at the time the state attempts to enforce the sentence, as well as whether
9 the delay arose from a negligent mistake on the part of the [district]
10 court or from deliberate or grossly negligent action, whether the
11 defendant bears any responsibility for the delay, and whether the
12 defendant has attempted to remedy the delay without success.

13 Id. ¶ 18. In Calabaza, we determined that any prejudice to the defendant in the delay

14 of the imposition of his sentence was outweighed by other factors, including the

15 district court’s determination that the defendant be allowed to serve the time imposed

16 in a community custody program. Id. ¶ 22.

17 {12} In Betterman v. Montana, the United States Supreme Court recently held that

18 a defendant’s right to a speedy trial under the Sixth Amendment does not extend

19 beyond the time of conviction. 578 U.S. ___, 136 S. Ct 1612, 1617 (2016).1 However,

1
20 The United States Supreme Court reserved “the question [of] whether the
21 Speedy Trial Clause applies to bifurcated proceedings in which, at the sentencing
22 stage, facts that could increase the prescribed sentencing range are determined[,]” for
23 example capital cases. Betterman, 136 S. Ct. at 1613 n.2. The Court also reserved the

7
 1 the United States Supreme Court did recognize that, similar to the pre-arrest stage of

2 a criminal proceeding, due process serves as a protection against exorbitant delays,

3 including “tailored relief under the Due Process Clauses of the Fifth and Fourteenth

4 Amendments.” Id. at 1612. After conviction, “a defendant’s due process right to

5 liberty, while diminished, is still present. He retains an interest in a sentence

6 proceeding that is fundamentally fair.” Id. at 1617. Because the defendant in

7 Betterman did not raise a due process challenge on appeal, the Court expressed no

8 opinion on how the defendant may have fared under the more “pliable [due process]

9 standard.” Id. at 1618. The United States Supreme Court offered limited dicta

10 considerations that might be applied in analyzing a defendant’s claims of due process

11 violations related to delays in sentencing. It proposed considering factors somewhat

12 similar to the Barker factors applied in a speedy trial analysis. Betterman, 136 S. Ct

13 at 1618 n.12. These similar factors included: “[the] length of and reasons for the

14 delay, the defendant’s diligence in requesting expeditious sentencing, and prejudice.”

15 Id. In a concurring opinion, Justice Sotomayor also noted that “the Barker factors

16 capture many of the concerns posed in the sentencing delay context[,] and . . . because

17 the Barker test is flexible, it will allow courts to take account of any difference

18 question related to renewed prosecution following successful appeal, when the
19 defendant again had a presumption of innocence. Id. Neither question is raised here
20 nor does Defendant make any arguments of this nature.

8
 1 between trial and sentencing delays.” Betterman, 136 S. Ct. at 1619 (Sotomayor, J.,

2 concurring). However, as recognized in Justice Thomas’s concurrence, the Barker

3 factors “may not necessarily translate to the delayed sentencing context.” Betterman,

4 136 S. Ct. at 1618 (Thomas, J., concurring). Instead, “[t]he Due Process Clause can

5 be satisfied where a [s]tate has adequate procedure to redress an improper deprivation

6 of liberty or property.” Id.

7 {13} Following Betterman, at least one federal district court has chosen to use the

8 Barker factors in analyzing claims of delayed sentencing under a due process

9 analysis. See Deck v. Steele, 4:12 CV 1527 CDP, 2017 WL 1355437, *58, __ F. Supp.

10 3d __ (E.D. Mo. Apr. 13, 2017). Other jurisdictions, including Montana and the

11 Federal Sixth Circuit Court of Appeals, have rejected the Barker factors and instead

12 have looked to the due process analysis set out in United States v. Lovasco, 431 U.S.

13 783 (1977), to address “ ‘[a]ny undue delay’ before or after the period protected by

14 the Sixth Amendment,” which would include delays in sentencing as well as delays

15 in the imposition of a sentence. See United States v. Sanders, 452 F.3d 572, 574, 577-

16 580 (6th Cir. 2006) (quoting United States v. McDonald, 456 U.S. 1, 7 (1982)); State

17 v. Betterman, 2015 MT 39, ¶ 29, 378 Mont. 182, 342 P.3d 971, aff’d, 136 S. Ct. 1609.

18 Under this alternative analysis, the question of whether a delay in sentencing violates

19 a defendant’s due process rights would be answered by looking to: “(1) the reasons

9
 1 for the delay; and (2) what prejudice the defendant has suffered as a result of the

2 delay.” Sanders, 452 F.3d at 580. We agree with the Sixth Circuit Court of Appeals

3 that the “Lovasco [due process] framework is well-suited to analyze whether such a

4 delay has occurred.” Sanders, 452 F.3d at 580. Under this framework, appellate

5 courts are to determine only “whether the action complained of violates those

6 fundamental conceptions of justice which lie at the base of civil and political

7 institutions, and which define the community’s sense of fair play and decency.” Id.

8 (omission and internal quotation marks omitted) (quoting Lovasco, 431 U.S. at 790).

9 {14} Defendant argues that the two-hundred-and-nine-day delay between conviction

10 and sentencing violated his right to due process. Although we believe Lovasco’s due

11 process framework is the most suitable analysis for a delay in sentencing claim, under

12 any framework—Barker, Lovasco, or a totality of the circumstances test—the burden

13 uniformly remains on the defendant to prove that the delay in sentencing was

14 prejudicial. See Lovasco, 431 U.S. at 790 (stating that “proof of prejudice is generally

15 a necessary but not [a] sufficient element of a due process claim”); Barker, 407 U.S.

16 at 530 (including as the final factor in the balancing test “prejudice to the

17 defendant”); Calabaza, 2011-NMCA-053, ¶¶ 22-23 (holding that there was no

18 violation of due process where the defendant suffered no prejudice). In this case,

10
 1 Defendant does not argue that significant prejudice occurred and we identify none

2 from our review of the record.

3 {15} After the return of the jury’s verdict, the district court ordered a pre-sentence

4 report, which was completed on June 18, 2014. The district court was not in Portales,

5 New Mexico for two weeks because it presided over a murder trial in Tucumcari,

6 New Mexico sometime in May or June. The district court judge was then on medical

7 leave for six weeks at the end of July. The district court sent notice on October 2,

8 2014, for the sentencing hearing to take place on October 20, 2014. Defendant

9 obtained a copy of the pre-sentence report on October 16, 2014, and filed a motion

10 to dismiss on October 22, 2014. Throughout the delay, Defendant was out on bond,

11 was employed, and even requested further time at sentencing to get his affairs in

12 order. The district court granted an additional two weeks before remand, sentenced

13 Defendant to the mandatory habitual offender time, and suspended the rest of his

14 sentence.

15 {16} Although Defendant argues that he was prejudiced because he was not

16 provided the pre-sentence report earlier, the district court was in control of the report

17 and both parties were required to obtain a copy from the district court. Defendant did

18 not identify any material issue that arose at his sentencing hearing because of the

19 delay in receiving his pre-sentencing report. As such, Defendant did not meet his

11
 1 burden of proof under either theory, and we conclude that there was no violation of

2 Defendant’s right to due process under the Fourteenth Amendment in the delay that

3 occurred prior to his sentencing hearing.2 See Betterman, 136 S. Ct. at 1615

4 (recognizing that “[i]t would be an unjustified windfall, in most cases, to remedy

5 sentencing delay by vacating validly obtained convictions”).

6 II. Ineffective Assistance of Counsel

7 {17} We review de novo “the legal issues involved with claims of ineffective

8 assistance of counsel” and “defer to the findings of fact of the [district] court if

9 substantial evidence supports the court’s findings.” State v. Crocco,

10 2014-NMSC-016, ¶ 11, 327 P.3d 1068. “Criminal defendants are entitled to

11 reasonably effective assistance of counsel under the Sixth Amendment of the United

12 States Constitution.” Id. ¶ 12 (internal quotation marks and citation omitted). For a

13 successful claim of ineffective assistance of counsel, a defendant must show that his

14 attorney erred and that this error prejudiced the defendant. State v. Arrendondo, 2012-

15 NMSC-013, ¶ 38, 278 P.3d 517. The “prejudice” element of an ineffective assistance

16 of counsel claim is not satisfied when the defendant only proves that a particular act

17 or omission by his counsel was prejudicial to his defense; instead, the defendant must

2
18 Defendant did not assert a statutory claim under Rule 5-701(B) NMRA that
19 states: “A sentencing hearing shall begin within ninety (90) days from the date the
20 trial was concluded or the date a plea was entered[,]” unless good cause is shown.

12
 1 show a “reasonable probability” that but for the attorney’s objectively unreasonable

2 conduct, the result of the proceedings would have been different. State v. Brazeal,

3 1990-NMCA-010, ¶ 23, 109 N.M. 752, 790 P.2d 1033 (internal quotation marks and

4 citation omitted).

5 {18} “When an ineffective assistance claim is first raised on direct appeal, we

6 evaluate the facts that are part of the record.” Crocco, 2014-NMSC-016, ¶ 14

7 (internal quotation marks and citation omitted). However, “[t]he record is frequently

8 insufficient to establish whether an action taken by defense counsel was reasonable

9 or if it caused prejudice.” Arrendondo, 2012-NMSC-013, ¶ 38. Thus, the appellate

10 courts prefer “that these claims be brought under habeas corpus proceedings so that

11 the defendant may actually develop the record with respect to defense counsel’s

12 actions.” Id. The “appellate court[s] may remand a case for [a full] evidentiary

13 hearing if the defendant makes a prima facie case of ineffective assistance [of

14 counsel].” Crocco, 2014-NMSC-016, ¶ 14 (internal quotation marks and citation

15 omitted). A prima facie case of ineffective assistance of counsel is made where: “(1)

16 it appears from the record that counsel acted unreasonably; (2) the appellate court

17 cannot think of a plausible, rational strategy or tactic to explain counsel’s conduct;

18 and (3) the actions of counsel are prejudicial.” State v. Herrera, 2001-NMCA-073,

19 ¶ 36, 131 N.M. 22, 33 P.3d 22 (internal quotation marks and citation omitted).

13
 1 {19} Defendant argues that because defense counsel failed to assert Defendant’s

2 right to a speedy trial and move to dismiss the charges, there exists a prima facie

3 showing of ineffective assistance of counsel. Recently in State v. Castro, this Court

4 determined that a prima facie case for ineffective assistance of counsel was

5 established under the facts that included defense counsel’s failure to ever assert the

6 defendant’s speedy trial rights, pro forma or otherwise. 2016-NMCA-085, ¶¶ 46, 48,

7 381 P.3d 694. However, this case is easily distinguished from Castro.

8 {20} In Castro, defense counsel never asserted the defendant’s right to a speedy trial

9 at any time during the nearly four years that his case was pending. Id. ¶ 46. In the

10 present case, although it appears from the record that defense counsel failed to assert

11 Defendant’s right to a speedy trial at every available juncture, defense counsel made

12 one pro forma assertion to the magistrate court of Defendant’s Sixth Amendment

13 right and several mentions of the lengthy time line of the case to the district court.

14 Furthermore, in Castro this Court specifically discussed defense counsel’s failure to

15 communicate with his client, focusing his efforts on receiving payment for past work,

16 and his several motions to withdraw. Id. ¶ 48.The defendant in Castro also presented

17 an affidavit attesting to his desire to assert his speedy trial right. Id. The record before

18 us presents no such facts or assertions by Defendant. It is not disputed that defense

19 counsel for Defendant may have asserted Defendant’s right to a speedy trial more

14
 1 vigorously and could have requested a speedy trial ruling from the district court

2 during the three years it took to bring this simple aggravated battery case to trial. See

3 State v. Leon, 2013-NMCA-011, ¶ 20, 292 P.3d 493 (recognizing a presumption of

4 counsel’s ineffectiveness when constitutional rights are implicated and counsel fails

5 to preserve a defendant’s right to appeal). However, we note that defense counsel’s

6 action did not rise to the level of unreasonableness identified in Castro.

7 {21} In addition, we agree with the State that there is plausible and rational strategy

8 for defense counsel’s conduct. Here, defense counsel was diligent in moving to have

9 the testimony of the Victim suppressed after he twice failed to attend scheduled

10 interviews. Although Defendant’s defense counsel ultimately interviewed Mr.

11 Montano over the phone because he had moved to Arizona, it is possible that defense

12 counsel hoped that Mr. Montano would either continue to elude her or fail to appear

13 altogether for trial, requiring the State to drop the charges. Furthermore, because

14 defense counsel was diligent, on multiple occasions, in asserting Defendant’s

15 argument regarding the State’s failure to provide access to Mr. Montano, we see no

16 reason to doubt her competency to vigorously represent Defendant at trial. Taking

17 into account defense counsel’s level of competency with regard to preparation for

18 trial as well as the other plausible explanation for failing to more vigorously assert

19 Defendant’s speedy trial right, based upon the facts known to this Court, we agree

15
 1 that defense counsel was likely making specific, reasoned decisions in her

2 representation of Defendant in this case. See Castro, 2016-NMCA-085, ¶ 50 (finding

3 “no rational or strategic basis” for the defense counsel’s failure to act regarding the

4 assertion or preservation of the defendant’s right to a speedy trial). Where a plausible,

5 rational strategy for defense counsel’s conduct exists, as is the case here, Defendant

6 has failed to establish a prima facie case for ineffective assistance of counsel, and we

7 need not reach the issue of whether Defendant was prejudiced. See Crocco,

8 2014-NMSC-016, ¶ 24 (explaining that the defendant did not establish a prima facie

9 claim of ineffective assistance based on defense counsel’s failure to move to suppress

10 evidence where the assertion would likely have been groundless as the record did not

11 show any constitutionally-protected privacy interest was violated by the warrantless

12 entry by police).

13 {22} We decline to remand this case for an evidentiary hearing on whether defense

14 counsel provided ineffective assistance of counsel. We note that Defendant is entitled

15 to pursue an ineffective assistance of counsel claim further by filing a petition for

16 habeas corpus. See State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d

17 61 (“If facts necessary to a full determination are not part of the record, an ineffective

18 assistance claim is more properly brought through a habeas corpus petition[.]”).

16
 1 III. Testimony of Jesus Acosta

2 {23} We review the district court’s decision regarding discovery issues for an abuse

3 of discretion. State v. Desnoyers, 2002-NMSC-031, ¶ 25, 132 N.M. 756, 55 P.3d 968,

4 abrogated on other grounds as recognized by State v. Forbes, 2005-NMSC-027, ¶ 6,

5 138 N.M. 264, 119 P.3d 144. “In order to find an abuse of discretion, we must

6 conclude that the decision below was against logic and not justified by reason.” State

7 v. Duarte, 2007-NMCA-012, ¶ 14, 140 N.M. 930, 149 P.3d 1027 (internal quotation

8 marks and citation omitted).

9 {24} Defendant argues that the district court erred in allowing Mr. Acosta to testify

10 because the address provided on the State’s witness list was insufficient. Rule 5-

11 501(A)(5) NMRA states that the State shall disclose to the defendant a “written list

12 of the names and addresses of all witnesses which the prosecutor intends to call at the

13 trial[.]” The State has a continuing duty under Rule 5-505(A) NMRA to disclose

14 “additional material or witnesses which [the prosecutor] would have been under a

15 duty to produce or disclose [by] . . . promptly giv[ing] written notice to the other party

16 . . . of the existence of the additional material or witnesses.” The assessment of

17 sanctions for a violation of discovery “depends upon the extent of the [g]overnment’s

18 culpability weighed against the amount of prejudice to the defense.” State v. Harper,

19 2011-NMSC-044, ¶ 16, 150 N.M. 745, 266 P.3d 25 (omission, internal quotation

17
 1 marks, and citation omitted). “The exclusion of witnesses is a severe sanction [and]

2 . . . like outright dismissal of a case, the exclusion of witnesses should not be imposed

3 except in extreme cases, and only after an adequate hearing to determine the reasons

4 for the violation and the prejudicial effect on the opposing party.” Id. ¶ 21.

5 {25} The State did not fail to disclose the witness’s identity or act in bad faith to

6 conceal his whereabouts. The State filed an updated witness list on June 24, 2011,

7 including the name of Mr. Acosta and an address at the Midway Dairy. The

8 prosecutor for the State located Mr. Acosta only thirty-six hours prior to trial after

9 searching for him. Defendant was then given the opportunity to interview Mr. Acosta

10 in person prior to his testimony. Given that Mr. Acosta was the only witness to the

11 events between Defendant and Mr. Montano, it would have been an extreme sanction

12 to exclude his testimony where there is no evidence that the State failed to timely

13 disclose his identity, the State searched to locate him for an interview, and Defendant

14 was ultimately able to interview him prior to his testimony. As a result, we hold that

15 the district court did not abuse its discretion by refusing to exclude the testimony of

16 Mr. Acosta. See State v. Le Mier, 2017-NMSC-017, ¶ 17, 394 P.3d 959 (“As an

17 appellate court, we necessarily operate with imperfect information about the

18 proceedings we review, and our assessment of the propriety of the decision to impose

19 or not to impose witness exclusion must reflect this reality.”).

18
 1 IV. Defendant Was Afforded a Fair Trial

2 A. Courtroom

3 {26} Defendant argues that the location of his trial, the Yam Theater, did not afford

4 him a fair trial because the proceedings lacked the necessary decorum. However,

5 Defendant does not argue violations of due process or equal protection and “[a]

6 general claim of denial of a fair trial cannot provide a basis for relief.” State v. Smith,

7 1979-NMSC-020, ¶ 9, 92 N.M. 533, 591 P.2d 664. Furthermore, Defendant does not

8 cite to any specific facts in the record pointing to how the location was

9 unconstitutional and “[w]e will not search the record for facts, arguments, and rulings

10 in order to support generalized arguments.” Muse v. Muse, 2009-NMCA-003, ¶ 72,

11 145 N.M. 451, 200 P.3d 104. Finally, Defendant does not argue that the location

12 limited public access and thereby, denied him a right to a public trial as afforded by

13 the Sixth Amendment to the United States Constitution.

14 {27} Instead, Defendant cites to several cases from other jurisdictions where courts

15 have determined that an alternative trial location denied those defendants a fair trial.

16 See Roberts v. State, 158 N.W. 930, 932 (Neb. 1916) (identifying specific facts during

17 a trial held in a theater where the bailiff announced that the “regular show will be

18 to[]morrow; matinee in the afternoon and another performance at 8:30” (internal

19 quotation marks and citation omitted)); People v. Rose, 368 N.Y.S.2d 387, 391 (N.Y.

19
 1 Cty. Ct. 1975) (holding that selecting a room permeated with religious symbols was

2 prejudicial to the defendant as it was inconsistent with prohibitions against the

3 establishment of religion); State v. Jaime, 233 P.3d 554, 555 (Wash. 2010) (holding

4 that a trial in a jail was inherently prejudicial to the defendant). However, none of

5 these cases are sufficiently similar to Defendant’s case. The trial was held at the Yam

6 Theater out of necessity because the ducts at the courthouse were being cleaned.

7 There are no facts argued by Defendant that the case lacked the proper solemnity of

8 a criminal trial. Furthermore, unlike the cases presented by Defendant, the theater did

9 not cause the trial to become a spectacle or “show” and it was not full of religious

10 symbols. The district court further referred to the theater as a courtroom. Finally,

11 Defendant failed to identify to any facts that would lead us to conclude that the

12 location was so uninviting as to limit public access.

13 {28} For the foregoing reasons, we will not try to guess at Defendant’s legal

14 argument or attempt to search for facts that could support such an argument. Holding

15 Defendant’s trial at Yam Theater did not deny Defendant a fair trial. See People v.

16 Terry, 222 P.2d 95, 584 (Dist. Ct. Cal. App. 1950) (“In the absence of some showing

17 to the contrary[,] the mere fact of holding a session of court in a room other than a

18 regular court room is entirely insufficient to warrant a conclusion, that the trial was

19 secret and violative of the rights of [the] defendant”).

20
 1 B. Evidentiary Arguments

2 {29} Defendant argues that two evidentiary errors denied him a fair trial: (1) the

3 chain of custody of the knife that was admitted at trial through a photograph, and (2)

4 Mr. Montano’s statement to Agent Alvarado that Defendant was the one who stabbed

5 him. Defense counsel cites to State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428

6 P.2d 982 and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1 in

7 advocating Defendant’s position.

8 {30} “We review the admission of evidence under an abuse of discretion standard

9 and will not reverse in the absence of a clear abuse.” State v. Sarracino,

10 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72. “An abuse of discretion occurs

11 when the ruling is clearly against the logic and effect of the facts and circumstances

12 of the case. We cannot say the trial court abused its discretion by its ruling unless we

13 can characterize [the ruling] as clearly untenable or not justified by reason.” State v.

14 Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks

15 and citations omitted).

16 1. Photograph of the Knife

17 {31} Defendant, on appeal, challenges the chain of custody of the knife that was

18 admitted at trial through a photographic exhibit. “In order to admit real or

19 demonstrative evidence, the evidence must be identified either visually or by

21
 1 establishing custody of the object from the time of seizure to the time it is offered into

2 evidence.” State v. Rubio, 2002-NMCA-007, ¶ 16, 131 N.M. 479, 39 P.3d 144

3 (internal quotation marks and citation omitted). “The State is not required to establish

4 the chain of custody in sufficient detail to exclude all possibility of tampering.” Id.

5 Photographic evidence, a form of demonstrative evidence, “must fairly and accurately

6 represent the depicted subject in order to satisfy the foundation requirement for

7 authentication of photographs.” State v. Mora, 1997-NMSC-060, ¶ 53, 124 N.M. 346,

8 950 P.2d 789, abrogated on other grounds as recognized by Kersey v. Hatch,

9 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683. Photographic evidence is

10 admissible “when a sponsoring witness can testify that it is a fair and accurate

11 representation of the subject matter, based on that witness’s personal observation.”

12 State v. Henderson, 1983-NMCA-094, ¶ 8, 100 N.M. 260, 669 P.2d 736.

13 {32} Defendant’s argument on appeal, challenging the adequacy of the State’s proof

14 of the chain of custody of the knife, was minimally developed in his brief in chief.

15 Generally, this Court is under no obligation “to review an argument that is not

16 adequately developed.” Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701.

17 Even if we interpret Defendant’s argument to be that in failing to establish the chain

18 of custody of the knife, the State did not establish the admission of the photograph

19 of the knife, “[q]uestions concerning a possible gap in the chain of custody affects the

22
 1 weight of the evidence, not its admissibility.” State v. Peters, 1997-NMCA-084, ¶ 26,

2 123 N.M. 667, 944 P.2d 896. The only questions therefore are whether the knife was

3 relevant to the case and whether the State laid a proper foundation for admission of

4 the photograph of the knife.

5 {33} At trial, Defendant objected to the State’s admission of the photograph of the

6 knife (Exhibit 2), the same knife that was given to Agent Alvarado by Defendant’s

7 wife. Defendant does not argue that the knife given to Agent Alvarado by

8 Defendant’s wife was not relevant to the stabbing incident between Defendant and

9 the Victim. As to the foundation for the photograph of the knife, Agent Alvarado

10 testified to the following facts: (1) while interviewing Defendant after the incident,

11 Agent Alvarado requested the knife from Defendant;(2) Agent Alvarado was then

12 able to retrieve the knife from Defendant’s wife; (3) the photograph offered by the

13 State was a picture of the knife he received from Defendant’s wife; and (4) the

14 photograph was “a fair and accurate depiction of the knife” that he received. For the

15 purposes of the photograph, this testimony is sufficient to lay the foundation for the

16 authentication of a photograph. See State v. Henderson, 1983-NMCA-094, ¶ 8, 100

17 N.M. 260, 669 P.2d 736 (recognizing that photographic evidence is admissible under

18 the pictorial theory where the sponsoring witness testifies “that it is a fair and

19 accurate representation of the subject matter, based on that witness’s personal

23
 1 observation”). Under the circumstances in this case, the district court did not abuse

2 its discretion in admitting the photograph of the knife. See id.

3 2. Testimony of Agent Alvarado

4 {34} Agent Alvarado testified that Mr. Montano told him that Defendant stabbed

5 him. Defense counsel did not object. “In order to preserve an issue for appeal, a

6 defendant must make a timely objection that specifically apprises the trial court of the

7 nature of the claimed error and invokes an intelligent ruling thereon.” State v.

8 Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (internal quotation marks and

9 citation omitted). This Court reviews unpreserved evidentiary matters for plain error.

10 State v. Contreras, 1995-NMSC-056, ¶ 23, 120 N.M. 486, 903 P.2d 228. “The

11 plain-error rule, however, applies only if the alleged error affected the substantial

12 rights of the accused. We must be convinced that admission of the testimony

13 constituted an injustice that created grave doubts concerning the validity of the

14 verdict.” Id. (internal quotation marks and citations omitted); see Rule 11-103(E)

15 NMRA (permitting a court to “take notice of a plain error affecting a substantial right,

16 even if the claim of error was not properly preserved”).

17 {35} Defendant argues that Agent Alvarado’s testimony that Mr. Montano told him

18 that it was Defendant who stabbed him violated his confrontation rights under the

19 Confrontation Clause. However, the testimony did not affect Defendant’s substantial

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 1 rights in the present case. The fact that Defendant was the individual who stabbed Mr.

2 Montano was not in dispute. Mr. Montano testified to the fact that Defendant stabbed

3 him and was subject to cross-examination by Defendant. Defendant also testified that,

4 during the fight, he was swinging the knife at Mr. Montano and hit him. As such,

5 Agent Alvarado’s testimony was simply cumulative evidence that corroborated the

6 testimony of both Defendant and the Victim. As such, Agent Alvarado’s testimony

7 does not implicate a violation of the confrontation clause and any error that may have

8 occurred would be harmless. See State v. Serna, 2013-NMSC-033, ¶ 22, 305 P.3d 936

9 (reviewing improperly admitted evidence for non-constitutional harmless error). By

10 its nature, harmless error would not be sufficiently prejudicial to establish grave

11 doubts in the minds of the jury and therefore would not rise to a level sufficient to

12 establish plain error. See State v. Lopez, 2009-NMCA-044, ¶ 15, 146 N.M. 98, 206

13 P.3d 1003 (recognizing that, to support reversal, the prejudicial nature of the evidence

14 must have “likely contributed to the jury’s verdict or, instead, was not prejudicial

15 because it constituted harmless error”).

16 V. Cumulative Error

17 {36} “Cumulative error requires reversal of a defendant’s conviction when the

18 cumulative impact of errors which occurred at trial was so prejudicial that the

19 defendant was deprived of a fair trial.” State v. Martin, 1984-NMSC-077, ¶ 17, 101

25
 1 N.M. 595, 686 P.2d 937. “The doctrine cannot be invoked if no irregularities occurred

2 or if the record as a whole demonstrates that a defendant received a fair trial[.]” Id.

3 (citations omitted). Having now determined that the only evidentiary error occurring

4 in this case was one minor instance of harmless error, we also hold that there was no

5 cumulative error. See State v. Duffy, 1998-NMSC-014, ¶ 60, 126 N.M. 132, 967 P.2d

6 807 (reasoning that no cumulative error exists where, after addressing each error

7 claimed by the defendant, our Supreme Court determined that there was either no

8 error or only harmless error), overruled on other grounds by State v. Tollardo,

9 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.

10 CONCLUSION

11 {37} For the foregoing reasons, we affirm Defendant’s conviction.

12 {38} IT IS SO ORDERED.

13 __________________________________
14 TIMOTHY L. GARCIA, Judge

15 WE CONCUR:

16 ___________________________________
17 JAMES J. WECHSLER, Judge

18 _________________________________
19 JULIE J. VARGAS, Judge

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