State v. BALENQUAH

Certiorari Denied, No. 31,652, April 28, 2009

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-055

Filing Date: March 13, 2009

Docket No. 26,678

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CLIFFORD D. BALENQUAH,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CATRON COUNTY
Edmund H. Kase III, District Judge

Gary K. King, Attorney General
Santa Fe, NM
James W. Grayson, Assistant Attorney General
Albuquerque, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

KENNEDY, Judge.

{1} Appellant David Balenquah (Balenquah) appeals his conviction for voluntary
manslaughter in the stabbing death of his cousin Andrew Zuni (Zuni). At trial, Balenquah
advanced a theory of self-defense and attempted to demonstrate what he alleged were Zuni’s
violent propensities. The State first disclosed evidence of Zuni’s criminal history during the

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trial. Balenquah argues that the State’s failure to disclose such evidence earlier violated his
rights under Brady v. Maryland, 373 U.S. 83 (1963). He also argues that the district court
improperly precluded him from cross-examining two witnesses with specific instances of
Zuni’s conduct. In separate issues, Balenquah contests the sufficiency of the State’s
facsimile search warrant and argues that this case presents cumulative error.

{2} We hold that the State’s delayed evidentiary disclosure complies with Brady because
the evidence in question was not material. Likewise, we hold that the court’s exclusion of
evidence did not impair Balenquah’s defense, and we conclude that the State’s facsimile
warrant was sufficient on these facts. No cumulative error exists in this case. We affirm the
district court.

Background

{3} The following facts are undisputed. Balenquah and Zuni went elk hunting in
southwest New Mexico on December 13, 2003. After killing an elk and dressing it for
transport, they went to Uncle Bill’s Bar in Reserve where they had drinks with Anthony and
Miguel Jiron. The group split up, and Zuni and Balenquah left Uncle Bill’s in Zuni’s truck,
heading back to Albuquerque along State Road 12. Soon thereafter, Zuni was knifed. He
died from his wounds in a pool of blood along State Road 12.

{4} Joshua Johnson and his wife were driving along State Road 12 that evening. They
saw Balenquah in the road next to Zuni’s truck and stopped to investigate. Balenquah asked
the Johnsons for a ride to Albuquerque, but they refused and left, as they were not traveling
in that direction. Rosie and Pat Aragon, who were also driving along State Road 12, saw
Balenquah, stopped, and agreed to drive him to their home where he could use the telephone.
On the way they passed Zuni, still alive, covered in blood, and kneeling on the side of the
road. Zuni waved at them in an apparent effort to get help, but they were frightened and
continued home with Balenquah in the back seat.

{5} When they arrived home, Mrs. Aragon called the police and reported what had
happened. The police responded first to the area where Zuni was seen, but he was dead
when they arrived. Police next proceeded to the Aragons’ home where they found
Balenquah, his hands and clothes bloody. They arrested Balenquah and took him into
custody.

{6} The police sought and were issued three warrants. The judge received the
applications for the warrants by facsimile and returned the signed warrants by facsimile. The
first warrant authorized the police to recover physical evidence from Balenquah’s person,
clothing, and shoes. The other two authorized police to recover physical evidence from
Zuni’s truck.

{7} Balenquah was charged on an open count of murder pursuant to NMSA 1978,
Section 30-2-1 (1994), and his case was tried before a jury on December 7-13, 2004. The

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State argued that Balenquah stabbed and killed Zuni. Balenquah staked his defense to the
theory that Zuni was a bully, an enormous man who harassed those weaker than himself.
He argued that Zuni became angry at him and made a variety of threatening remarks during
the drive home from Uncle Bill’s. The foul remarks, Balenquah contended, ultimately
culminated in Zuni attacking him in the truck. In order to protect himself, Balenquah
argued, he defended himself against Zuni’s attacks and fled for his life.

{8} At trial, the State first called Rosie and then Pat Aragon, who both testified about
what they experienced on December 13, 2003. The State then called Joshua Johnson, who
likewise testified to what happened that evening. Fourth was Anthony Jiron, who gave
testimony about Zuni’s good character. When Balenquah attempted to cross-examine
Anthony Jiron with evidence that Zuni had once “r[u]n over his girlfriend,” the State lodged
an objection, which the court sustained on the basis of improper foundation.

{9} In the wake of this objection, Balenquah alerted the court to the fact that the report
on Zuni from the National Crime Information Center (NCIC), turned over by the State
during discovery, was incomplete and covered only traffic violations. The State agreed that
the original NCIC report it turned over was for traffic offenses only. Aware that the full
NCIC report contained a variety of criminal charges, some of which were violent in nature,
the State then offered the full report. Balenquah moved for a mistrial, arguing that the
State’s actions violated Brady. The district court suspended its ruling on the motion and
allowed the trial to proceed. When the court finally revisited the issue of the NCIC report,
the parties agreed to remedy the matter by allowing the entire report to come in as evidence,
and on this basis the court heard no more argument on the matter.

{10} During closing argument, Balenquah asserted that Zuni had a propensity for violence
and that the complete NCIC report, then already admitted into evidence, was the proof.
After deliberation, the jury returned a verdict of guilty on the charge of voluntary
manslaughter, and the court entered judgment, sentencing Balenquah to an incarceration
period of six years.

Discussion

1. Balenquah’s Rights Under Brady Were Not Violated

{11} Balenquah argues that the State violated his rights under Brady when it failed to turn
over Zuni’s complete NCIC report prior to trial. An alleged Brady violation constitutes a
charge of prosecutorial misconduct. State v. Trujillo, 2002-NMSC-005, ¶¶ 48, 50, 131 N.M.
709, 42 P.3d 814. We review such charges for abuse of discretion “because the trial court
is in the best position to evaluate the significance of any alleged prosecutorial errors.” Case
v. Hatch, 2008-NMSC-024, ¶ 47, 144 N.M. 20, 183 P.3d 905 (internal quotation marks and
citation omitted). When reviewing for abuse of discretion, we will affirm the trial court
“unless its ruling [was] arbitrary, capricious, or beyond reason.” Id. (alteration in original)
(internal quotation marks and citation omitted).

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{12} In Brady, the United States Supreme Court held that the prosecution violates a
defendant’s due process rights when it suppresses evidence favorable to the defense. Brady,
373 U.S. at 86. A defendant must prove three elements under Brady. First, the evidence
must have been “suppressed” by the prosecution. Second, the evidence must have been
favorable to the defendant. And third, the evidence must have been material to the defense.
Trujillo, 2002-NMSC-005, ¶ 50. Balenquah fails to prove the third element.

{13} We assume without deciding that Balenquah satisfied Brady’s first two elements: that
the evidence was suppressed and that the evidence was favorable to him. However,
Balenquah fails to convince us of the report’s materiality. In order for evidence to be
material under Brady, there must be “a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Trujillo,
2002-NMSC-005, ¶ 50 (internal quotation marks and citation omitted). To properly consider
the materiality of evidence under Brady, we analyze it in relation to the record as a whole.
State v. Baca, 115 N.M. 536, 541, 854 P.2d 363, 368 (Ct. App. 1993). Evidence that appears
material at first blush “can lose its potency when weighed and measured with . . . other
evidence, both inculpatory and exculpatory.” Id.

{14} The NCIC report became an issue on the second day of trial at the end of the
testimony of Anthony Jiron, the first witness to testify for the State regarding Zuni’s
reputation and character. Balenquah thus enjoyed the opportunity to utilize the full report
for the remainder of his five-day trial. We note that although some of Zuni’s criminal
history in the NCIC report might have been probative of this victim’s character under Rule
11-404(A)(2) NMRA, it is likely that at least some of this evidence, had it been introduced
during testimony, would have been hotly contested by the State as irrelevant or prejudicial.
Despite this, Balenquah and the State reached an agreement on the next-to-last day of the
trial that the full NCIC report would be submitted “for the jury’s consideration.” The
admission of the full report, therefore, gave Balenquah an advantage he otherwise might
have been denied under Rule 11-404(B). We consider his closing argument illustrative.
There, he directed the jury’s attention to Zuni’s record in the full NCIC report. Balenquah
stated that Zuni’s history indicated “[a]rrest after arrest after arrest” as well as “[b]attery
against a household member.” The inference, of course, was that Zuni was violent. On these
facts, we hold that the State’s failure to turn over the full report to the defense until the
second day of trial was immaterial when offset by Balenquah’s use of it as evidence that was
before the jury.

{15} We note here that even if Balenquah were able to make his case under Brady’s three
elements, his Brady claim would likely still fail. In State v. Rondeau, 89 N.M. 408, 418, 553
P.2d 688, 698 (1976), our Supreme Court held that no Brady violation exists where evidence
is found during trial as opposed to after trial. The Court interpreted Brady “to mean that a
convicted defendant [is] entitled to a retrial where the prosecution suppresse[s], throughout
the whole trial, exculpatory evidence material to the guilt or punishment of the defendant.”
Id. (emphasis added).

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2. Balenquah’s Rights Were Not Violated by the Exclusion of Evidence

{16} Balenquah argues that he should have been allowed to introduce evidence of specific
acts on the part of Zuni during his cross-examination of the Jirons for the purpose of
showing that Zuni had violent tendencies. The district court excluded this evidence over
Balenquah’s insistence that it was necessary for his rebuttal of the State’s testimony
concerning Zuni’s good reputation and for Balenquah’s self-defense claim. Balenquah had
raised Zuni’s character as a bully in his opening statement.

{17} During trial, Anthony Jiron testified that Zuni did not drink and that he did not regard
Zuni as either violent or a bully because he had never seen Zuni get into any altercations.
Balenquah did not object to this testimony. On cross-examination, Balenquah’s attorney
attempted to question Anthony Jiron about an incident in which Zuni allegedly ran over his
girlfriend. This drew an objection from the State as to the foundation for questioning Zuni’s
criminal history, causing defense counsel to cite a partial NCIC report indicating that Zuni
had previously been convicted of burglary and aggravated battery. The trial court sustained
the objection. Miguel Jiron testified that he had never seen Zuni act “rowdy.” During the
cross examination of Miguel Jiron defense counsel did not pursue any questions concerning
Zuni’s previous record. Following Miguel Jiron’s testimony, the trial broke for lunch, and
during the break the district court chastised the prosecution for failing to provide the defense
with the complete NCIC report for Zuni. The report showed no convictions but a number
of charges, including ones involving interpersonal violence. The district court again denied
a request by the defense to cross-examine based on the report, talking about the balance
between the State’s eliciting evidence of Zuni’s good character, the lack of knowledge about
the identities of the complaining witnesses in those cases, and the right of the jury to know
that negative information about Zuni existed. The State later suggested that the complete
NCIC report be admitted as evidence, and defense counsel agreed.

{18} The prosecution asked Anthony Jiron about Zuni’s peaceable character before
Balenquah raised any issue of Zuni’s aggressiveness. Rule 11-404(A)(2) is an exception to
the general inadmissibility of character evidence allowing evidence of the peaceful character
of a victim “offered by the prosecution in a homicide case to rebut evidence that the victim
was the first aggressor.” The prosecution jumped the gun by offering this evidence
improperly in its case in chief. Because Balenquah did not raise this prosecutorial
impropriety at trial, and because we do not consider arguments not preserved below, State
v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280, we do not address this
impropriety.

{19} After these witnesses testified, and in the course of argument concerning the NCIC
report and the admissibility of previous incidents involving violence, the district court ruled
that Balenquah would be allowed to present specific instances of Zuni’s prior conduct. The
court and parties understood at that point that the defense would attempt to contact Zuni’s
alleged victim, which proved to be impossible. After arguing the impact of the failure by
the State to produce the NCIC report in a timely fashion and the impact of the lack of

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evidence to support his self-defense claim, the defense accepted the State’s suggestion that
the entire NCIC report be presented to the jury. The defense, in its case, presented witnesses
who testified that Zuni was a bully with a reputation for violent behavior and cross-examined
rebuttal witnesses as to their knowledge of Zuni’s reputation and any prior instances of
violent conduct of which they might have been aware. The defense raised Zuni’s criminal
record to the jury in its closing argument.

{20} We hold that Balenquah was not deprived in any meaningful manner of the right to
present his self-defense claim to the jury. The district court’s early rulings agreed with his
right to cross-examine based on specific instances of conduct but limited the questions owing
to the limited knowledge as to what those instances were. At all times, the district court
expressed its willingness to allow Balenquah to present the evidence through other
witnesses, and later allowed him to do so, both by calling his own witnesses and by cross-
examining the State’s remaining witnesses.

{21} Rule 11-404(A)(2) allows a defendant to introduce evidence of a pertinent character
trait of the victim. Rule 11-405(A) NMRA generally requires that this be accomplished by
reputation or opinion evidence, but specific instances of conduct are allowed where the
victim’s character is an element of a charge or defense. Rule 11-405(B). Our Supreme
Court, in State v. Armendariz, 2006-NMSC-036, ¶ 17, 140 N.M. 182, 141 P.3d 526, has held
that a victim’s violent character is not an element of self-defense but can be circumstantial
evidence of a victim’s character trait, known by the defendant, to which the victim was
conforming at the time of the incident. Armendariz therefore limited the type of evidence
allowed as proof of such a trait to reputation or opinion evidence. Id. A limited exception
to this rule allows cross-examination of witnesses as to specific instances of conduct. Rule
11-405(A).

{22} We hold that under these circumstances the district court comported with the law
because it allowed limited cross-examination during the State’s case and accorded
Balenquah the opportunities to establish his claim of self-defense as might be established by
any previous history of violence on Zuni’s part. The question of whether Zuni actually
engaged in the prior incidents took a back seat to addressing the negative impact of
incomplete discovery. Balenquah was allowed sufficient latitude in questioning the Jirons,
he called and questioned his own witnesses, and he properly examined the State’s rebuttal
witnesses. Admission of the entire NCIC report was likely beyond the bounds of
admissibility. State v. Christopher, 94 N.M. 648, 651, 615 P.2d 263, 266 (1980).

3. The State’s Facsimile Warrant Was Proper

{23} Immediately after Zuni’s death, the State obtained three warrants by facsimile. The
first authorized the recovery of evidence from Balenquah’s clothes and shoes, and the other
two authorized the recovery of evidence from Zuni’s truck. Balenquah challenges only the
first of these. He argues that New Mexico law makes no provision for warrants by facsimile
except under exigent circumstances. And because this case involved no such circumstances,

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he contends that the State’s warrant and any evidence obtained as a result were unlawful and
that the physical evidence seized should have been suppressed. He therefore asks us to
reverse his conviction. We refuse to do so on the basis that: (1) the warrant issued by the
State complies with the plain language of Rule 5-211 NMRA, and (2) a warrant under the
circumstances was supererogatory.

{24} We review the sufficiency of search warrant affidavits de novo. State v. Garcia,
2002-NMCA-050, ¶ 7, 132 N.M. 180, 45 P.3d 900 (citing State v. Whitley, 1999-NMCA-
155, ¶ 3, 128 N.M. 403, 993 P.2d 117).

{25} The State’s warrant complies with the plain language of Rule 5-211. That Rule states
that “[a] warrant shall issue only on a sworn written statement of the facts showing probable
cause for issuing the warrant,” Rule 5-211(A), and that the issuing court “may require the
affiant to appear personally” for examination under oath. Rule 5-211(E) (emphasis added).
The drafters have made the first requirement mandatory: a valid warrant must be supported
by a sworn, written statement—that is to say, an affidavit. Balenquah does not dispute that
the State complied on this score. But he would have the State’s affiant jump through the
additional hoop of physical presence, and the plain language of Rule 5-211(E) demonstrates
his mistake. This rule is permissive: a court may, in its discretion, require the physical
presence of the affiant for the purpose of vetting him under oath. Such permissive language
precludes the mandatory physical presence of the affiant. In this case, the issuing judge did
not require physical presence, and a close reading of Rule 5-211 satisfies us that the decision
was the judge’s to make.

{26} Even if we presume the insufficiency of facsimile warrants, we would still hold the
error harmless under the plain view exception to the warrant requirement. Under the plain
view exception, “items may be seized without a warrant if the police officer was lawfully
positioned when the evidence was observed, and the incriminating nature of the evidence
was immediately apparent, such that the officer had probable cause to believe that the article
seized was evidence of a crime.” State v. Zamora, 2005-NMCA-039, ¶ 19, 137 N.M. 301,
110 P.3d 517 (internal quotation marks and citation omitted). Probable cause exists when
an officer has good reason to believe that the person has committed a felony. State v. Saiz,
2008-NMSC-048, ¶ 13, 144 N.M. 663, 191 P.3d 521.

{27} Here, under the plain view exception, police could have seized the “blood, tissue,
fibers, clothing and shoes” from Balenquah’s person without a warrant. The police arrested
Balenquah at the Aragons’ home. At that time police observed “blood on his hands and
clothes.” The Aragons told police that they picked up Balenquah along the side of State
Road 12 in the area of mile marker 33. The police had just come from that location where
they found Zuni’s dead body and “[l]arge quantities of blood.” Balenquah told police that
he and Zuni had engaged in a “heated argument” while driving along State Road 12.

{28} Neither party disputes that the police were lawfully positioned when they observed
Balenquah at the Aragons’ home or when they discovered Zuni’s body at mile marker 33.

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Likewise, based on the facts known to the police when they saw Balenquah, it was a
reasonable conclusion that the blood on Balenquah’s person was evidence pertaining to the
possible murder of Andrew Zuni. Under these circumstances, the police’s procurement of
a warrant was an unnecessary precaution.

4. Balenquah’s Case Presents No Cumulative Error

{29} Balenquah urges us to adopt his reasoning to hold that the district court’s errors,
taken together, constitute cumulative error. We refuse to do so. As should be apparent by
our reasoning above, the district court’s conduct admits no errors, and we must therefore
reject Balenquah’s cumulative error argument.

Conclusion

{30} We affirm the judgment of the district court and hold that: (1) Balenquah has failed
to sound a proper claim under Brady, (2) Balenquah’s right to cross-examine witnesses
against him was not violated by the court’s exclusion of evidence, (3) the State’s facsimile
warrant was sufficient, and (4) there is no cumulative error warranting reversal.

{31} IT IS SO ORDERED.

RODERICK T. KENNEDY, Judge

WE CONCUR:

CYNTHIA A. FRY, Chief Judge

JAMES J. WECHSLER, Judge

Topic Index for State v. Balenquah, No. 26,678

CT CONSTITUTIONAL LAW
CT-DP Due Process
CT-MS Misconduct by Prosecutor
CT-SU Suppression of Evidence

CL CRIMINAL LAW
CL-SD Self-defense
CL-VM Voluntary Manslaughter

CA CRIMINAL PROCEDURE

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CA-DU Due Process
CA-MP Misconduct by Prosecutor
CA-PE Production of Evidence
CA-SW Search Warrant
CA-SD Self-defense

EV EVIDENCE
EV-CE Character Evidence
EV-EE Exclusion of Evidence
EV-CU Cumulative Evidence
EV-PA Prior Acts or Statements
EV-PC Prior Convictions or Judgments
EV-SU Suppression of Evidence

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