1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 28,389
10 IVAN LUJAN,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
13 John M. Paternoster, District Judge
14 Gary K. King, Attorney General
15 Andrea Sassa, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender
19 Karl Erich Martell, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 BUSTAMANTE, Judge.
1 Defendant was convicted of trafficking cocaine, possessing cocaine, and
2 aggravated assault with a deadly weapon based on a cocaine sale he made to an
3 undercover agent in January 2007 and a search warrant that was executed on him in
4 February 2007. Defendant appeals these convictions on a multitude of grounds. We
5 affirm.
6 I. BACKGROUND
7 On January 17, 2007, a New Mexico State Police undercover narcotics agent
8 assisted in an attempt to purchase narcotics from Defendant in room 101 of the
9 Comanche Inn in Taos, New Mexico. Using an unwitting third party, the agent
10 arranged to meet with Defendant in order to purchase cocaine. The agent met with
11 Defendant in the hotel room to negotiate the sale. Eventually, Defendant retrieved the
12 cocaine from a nightstand drawer containing several clear plastic baggies of cocaine
13 and sold it to the agent for $400. That evening, the undercover agent placed the
14 cocaine in an evidence drop box.
15 On February 27, 2007, officers executed a search warrant on Defendant, again
16 in room 101 of the Comanche Inn. Defendant and a Ms. Lovato were the only people
17 in the room. A packet of cocaine was found on Ms. Lovato’s person. Agents arrested
18 Defendant and read him his rights. Defendant elected to remain silent and asked for
19 his attorney. Agent Edwardo Martinez testified that he found $892 in the hotel room
2
1 on February 27, the majority of which was found in Defendant’s wallet. He also
2 testified to finding a pistol, a scale, and some white powder.
3 Because the money was photographed and was not going to be seized for
4 forfeiture, Agent Martinez did not take it into custody as evidence. Agent Martinez
5 indicated that he prepared the receipt to document that the money had been returned
6 to Defendant. Defendant objected to the introduction of the receipt, reiterating the
7 arguments he had made in his denied motion in limine to exclude the receipt. The
8 objection was overruled.
9 A jury convicted Defendant of trafficking cocaine by distribution and
10 aggravated assault with a deadly weapon for the events that took place on January 17.
11 The jury also convicted Defendant of possession of cocaine based on evidence
12 discovered in the search on February 27. The jury found Defendant not guilty of
13 trafficking by possession with the intent to distribute and not guilty of conspiracy to
14 traffic for the February incident.
15 II. DISCUSSION
16 Defendant raises eight arguments, most of them pursuant to State v. Franklin,
17 78 N.M. 127, 428 P.2d 982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct.
18 App. 1985), which he believes warrant reversal. We address each in the order they
19 were raised.
3
4
1 A. Suppression of the Receipt
2 Defendant’s first argument is that the district court’s failure to suppress the
3 receipt Defendant signed when his money was returned violated his rights under
4 Miranda v. Arizona, 384 U.S. 436 (1966), and his right to an attorney. Because the
5 facts regarding the timing of the events surrounding the arrest and the seizure and
6 return of the $892 were not well developed, this Court is not in a good position to
7 determine whether Defendant’s rights were violated. For example, it is unclear from
8 the record whether the wallet was returned at the hotel, during booking at the police
9 station, or at some other point. It is also unclear how much time passed between the
10 seizure of the wallet and its return, and when Defendant was given his Miranda rights
11 in relation to these events.
12 Although we are skeptical that asking Defendant to sign the receipt was
13 constitutionally sound, we need not decide the issue to dispose of this case. Assuming
14 without deciding that the police violated Defendant’s rights, any error was harmless.
15 For constitutional error, “a reviewing court should only conclude that an error is
16 harmless when there is no reasonable possibility that it affected the verdict.” State v.
17 Barr, 2009-NMSC-024, ¶¶ 53, 56, 146 N.M. 301, 210 P.3d 198. To decide whether
18 the error was harmless, a reviewing court should consider whether there is “(1)
19 substantial evidence to support the conviction without reference to the improperly
5
1 admitted evidence; (2) such a disproportionate volume of permissible evidence that,
2 in comparison, the amount of improper evidence will appear minuscule; and (3) no
3 substantial conflicting evidence to discredit the [s]tate’s testimony.” Id. ¶ 56 (footnote
4 omitted).
5 The $892 was relevant to show intent to distribute for Count Four, the
6 trafficking by possession with intent to distribute count arising out of the February
7 search. Defendant was acquitted of that charge. We nevertheless examine whether
8 the receipt was harmless with respect to Defendant’s conviction for trafficking by
9 distribution based on the January purchase and his conviction for possession based on
10 the February search.
11 1. Count 1: Trafficking by Distribution in January
12 In order to convict Defendant of trafficking cocaine by distribution for the
13 January events, the State was required to prove that Defendant transferred cocaine to
14 another and that he knew or believed that it was cocaine. Additionally, the instruction
15 required that these events must have happened “on or about the 17th day of January,
16 2007.” The trafficking by distribution count did not have an intent element.
17 The State presented substantial evidence to support this without reference to the
18 receipt it obtained for the cash on February 27. The undercover agent testified that he
19 purchased cocaine from Defendant, noting specifically that “Ivan transferred the
6
1 cocaine to my hands” and that “[Ivan] was the one who gave me the narcotics.” The
2 forensic technician who tested the substance testified that she had identified it as
3 cocaine. The undercover agent, the forensic technician, and the evidence custodian
4 each testified as to the chain of custody of the cocaine between the purchase and the
5 testing.
6 By comparison, the evidence of the receipt is minuscule. The entire discussion
7 of the receipt, including defense objections, consumes only three pages of the
8 transcript. Furthermore, the receipt does not address either of the two elements in
9 Count One. Finally, there is no conflicting evidence regarding this charge, and
10 Defendant points to none in his brief. In fact, the argument in the brief is entirely
11 directed to the trafficking cocaine by possession with intent to distribute charge of
12 Count Four, upon which the jury found Defendant not guilty. Under these
13 circumstances, we hold that the admission of the receipt was harmless error with
14 respect to the conviction for Count One.
15 2. Count 4: Possession of Cocaine in February
16 Because Defendant was acquitted of the trafficking charge with respect to the
17 February incident, we do not examine that count. We do address his conviction for
18 the lesser included offense of possession arising out of the February incident.
7
1 To convict for possession of cocaine, the State had to prove that Defendant had
2 cocaine in his possession and that he knew or believed that it was cocaine. The jury
3 was further instructed that
4 A person is in possession of cocaine, when, he knows it is on his
5 person or in his presence, and he exercises control over it.
6 Even if the substance is not in his physical presence, he is in
7 possession if he knows where it is, and he exercises control over it.
8 Two or more people can have possession of a substance at the
9 same time.
10 A person’s presence in the vicinity of the substance or his
11 knowledge of the existence or the location of the substance, is not, by
12 itself, possession.
13 There is substantial evidence to support Defendant’s conviction for possession
14 of cocaine for the February incident. Sergeant Chris Weare testified that when he
15 entered the hotel room to execute the warrant, the room contained Defendant and Ms.
16 Lovato, who was on one of the beds wearing only underwear. During the arrest, he
17 observed a packet of white powdery substance that had fallen from Ms. Lovato’s body
18 when she stood up. Agent Martinez seized the cocaine. [Tr. Vol. 2: 347-53] Agent
19 Martinez also testified that he recovered additional items in the hotel room typical of
20 drug trafficking: a scale, a gun, and $892 in cash. The act of hiding the cocaine and
21 the additional drug indicia of drug sales show awareness that the substance was
22 cocaine. Furthermore, the jury could reasonably have concluded from the same
8
1 evidence that Defendant exercised control over the cocaine, either as a user or as a
2 dealer.
3 The evidence of the receipt is small in comparison. It could have had no
4 reasonable effect on the total evidence directed toward this count. Neither is there any
5 contradictory evidence here. Accordingly, we decline to disturb the district court’s
6 ruling.
7 B. Suppression of the Chain of Custody Evidence
8 Defendant’s second argument is that the district court “committed reversible
9 error in failing to suppress the chain of custody evidence pertaining to the January
10 incident.” “We review a district court’s ruling on late discovery for abuse of
11 discretion.” State v. Duarte, 2007-NMCA-012, ¶ 14, 140 N.M. 930, 149 P.3d 1027.
12 We consider the following factors in determining whether late disclosure of evidence
13 requires reversal: “(1) whether the State breached some duty or intentionally deprived
14 the defendant of evidence; (2) whether the improperly non-disclosed evidence was
15 material; (3) whether the non-disclosure of the evidence prejudiced the defendant; and
16 (4) whether the trial court cured the failure to timely disclose the evidence.” Id. ¶ 15
17 (internal quotation marks and citation omitted). Non-disclosed evidence is material
18 if “there is a reasonable probability that, had the evidence been disclosed to the
19 defense, the result of the proceeding would have been different.” Id. (internal
9
1 quotation marks and citation omitted). Prejudice is determined by examining
2 “whether the defense’s case would have been improved by an earlier disclosure or
3 how the defense would have prepared differently for trial.” Id. (alteration omitted)
4 (internal quotation marks and citation omitted).
5 It is clear that the State had a duty to disclose the chain of custody information.
6 See Rule 5-501(A)(3) NMRA; State v. Clark, 105 N.M. 10, 15-16, 727 P.2d 949, 954-
7 55 (Ct. App. 1986). Nevertheless, Defendant has shown neither the materiality nor
8 the prejudice necessary to convince us there was error. Defendant does not explain
9 how the chain of custody evidence was material; that is, how there was a reasonable
10 probability that the outcome would have been different had Defendant received the
11 chain of custody materials earlier. Even without the custody forms, Defendant was
12 aware that several witnesses intended to testify that the substance Defendant had sold
13 to the undercover agent was cocaine, including testifying as to their part in the chain
14 of custody. Questions about gaps in the chain of custody go to the weight of the
15 evidence, not its admissibility. State v. Peters, 1997-NMCA-084, ¶ 26, 123 N.M. 667,
16 944 P.2d 896. Also, admission of the evidence is within the district court’s discretion
17 “when the evidence is shown by a preponderance of the evidence to be what it
18 purports to be.” Id. Accordingly, even without the forms, Defendant needed to
10
1 prepare for the possibility that the cocaine from the January incident would be
2 admitted.
3 Nor has Defendant shown prejudice. Defendant has not explained in his brief
4 how earlier disclosure would have caused him to prepare differently for trial. The
5 record suggests one possibility: that instead of making the tactical decision to do
6 nothing once he became aware that the State had not disclosed the custody forms,
7 Defendant would instead have had to prepare his defense based on the evidence. We
8 agree with the district court that Defendant cannot make a tactical decision to do
9 nothing and then claim it prejudiced him on appeal. Furthermore, the district court
10 made it clear that the State risked losing the evidence, and potentially its entire case,
11 if adequate foundation could not be laid. But the State did lay the necessary
12 foundation, Defendant did effectively cross-examine regarding custody, and the jury
13 decided for the State.
14 Defendant has not shown the necessary materiality or prejudice to prevail on
15 this issue. Additionally, the district court appears to have provided Defendant with
16 ample opportunity to challenge the custody forms. On this record, we cannot say that
17 the district court abused its discretion by not suppressing the chain of custody.
11
1 C. Unfair Inducement: Denial of the Motion to Sever
2 Defendant’s third argument is that the district court abused its discretion by
3 denying his motion to sever the January charges (Counts One and Four) from the
4 February charges (Counts Two and Three). Denial of a motion to sever is reviewed
5 for abuse of discretion. See State v. Gallegos, 2007-NMSC-007, ¶ 16, 141 N.M. 185,
6 152 P.3d 828. “If evidence pertaining to each charge would not be cross-admissible
7 at separate trials, the trial court abuses its discretion when it decides not to sever
8 joined offenses.” Id. ¶ 47. “However, even if the trial court abused its discretion we
9 must consider whether that error actually prejudiced [the defendant].” Id. ¶ 20.
10 On appeal, Defendant’s argument as to why denial of the motion to sever was
11 reversible error is that “the evidence should not have been cross-admissible to show
12 knowledge and intent in order to rebut the defense of improper inducement by police.”
13 The defense of inducement only applied to the trafficking charges, and Defendant was
14 only convicted of trafficking in Count One (which dealt with the January sale). We
15 therefore understand this argument to mean that, had the trials been severed, the
16 February evidence would not have been admissible in the trial regarding the January
17 events.
18 We assume without deciding that the February evidence would not have been
19 cross-admissible and that the denial of the motion to sever was error. However, once
12
1 again, the error did not prejudice Defendant. As discussed below in the sufficiency
2 section, the January evidence by itself provided a sufficient, and indeed compelling,
3 basis for the jury to conclude that Defendant was predisposed to sell cocaine. The
4 additional evidence from February, while also relevant to Defendant’s penchant for
5 selling drugs, did not prejudice his defense.
6 D. Unfair Inducement: Sufficiency
7 Defendant’s fourth argument is that his conviction of trafficking by distribution
8 was improper because the State failed to present adequate evidence that Defendant
9 was predisposed to commit the crime. “In reviewing the sufficiency of the evidence,
10 we must view the evidence in the light most favorable to the guilty verdict, indulging
11 all reasonable inferences and resolving all conflicts in the evidence in favor of the
12 verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
13 This evidence is sufficient if it “could justify a finding by any rational trier of fact that
14 each element of the crime charged has been established beyond a reasonable doubt.”
15 State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation
16 marks and citation omitted).
17 Defendant concedes that the jury instruction on inducement correctly stated the
18 law. Although it is not clear from the briefs, this instruction relates to the subjective
19 test for entrapment. See UJI 14-5160 NMRA Comm. Comment. The subjective
13
1 standard focuses on the defendant’s predisposition. In re Alberto L., 2002-NMCA-
2 107, ¶ 8, 133 N.M. 1, 57 P.3d 555. “Government officials engage in subjective
3 entrapment when they originate the criminal design and implant the disposition to
4 commit the crime in the mind of an innocent person in order to enable prosecution.”
5 Id. “A defendant is considered to have been predisposed if he was ready and willing
6 to commit the crimes whenever an opportunity was afforded.” Id. ¶ 11 (internal
7 quotation marks and citation omitted).
8 The relevant evidence is as follows. The undercover agent arranged an
9 introduction with Defendant via a third party for the purpose of buying cocaine, and
10 immediately upon entering the hotel room Defendant offered to sell him a half-ounce
11 of cocaine for $400. The agent also testified that Defendant eventually retrieved the
12 cocaine from a drawer containing a number of clear plastic baggies that were rolled
13 up and ready to be distributed. Viewing this testimony in the light most favorable to
14 the conviction, the jury could easily have concluded that Defendant was ready and
15 willing to sell the cocaine. In opposition to this, Defendant offers only that “[Agent
16 Martinez] testified, ‘Mr. Lujan would probably never approach me to sell the
17 cocaine.’” However, the full testimony dispels any notion that this statement was
18 evidence of Defendant’s disposition:
19 Q. [Defendant] never approached you to try to sell you cocaine?
14
1 A. [Defendant] would probably never approach me to sell the
2 cocaine.
3 Q. Because he knows you are a police officer?
4 A. I have known [Defendant] since he was a young boy. And, yes,
5 he does know I am a police officer.
6 Agent Martinez had been an officer for just over ten years. This exchange does not
7 create any reasonable doubt calling into question the jury’s verdict. Sufficient
8 evidence supports the jury’s implicit finding that Defendant was predisposed to sell
9 cocaine.
10 E. Unfair Inducement: Jury Instructions
11 Defendant’s fifth argument is that it was reversible error for the district court
12 to submit UJI 14-3110 NMRA to the jury without his proposed modifications. The
13 propriety of jury instructions given or denied is a mixed question of law and fact
14 which we review de novo. State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 778,
15 945 P.2d 996. Jury instructions are interpreted as a whole, not singly. State v. Parish,
16 118 N.M. 39, 41, 878 P.2d 988, 990 (1994). Once adopted, jury instructions are
17 presumed to be correct statements of the law. State v. Wilson, 116 N.M. 793, 796, 867
18 P.2d 1175, 1178 (1994). Where the New Mexico Supreme Court has not already ruled
19 on the issue, the Court of Appeals may examine whether a jury instruction correctly
20 reflects the applicable law. Id.
15
1 The district court gave two Uniform Jury Instructions without modification: UJI
2 14-3110, regarding trafficking by distribution, was given as Instruction 8; and UJI 14-
3 5160, regarding entrapment, was given as Instruction 14. The district court denied
4 Defendant’s request that UJI 14-3110 be modified to contain an additional element
5 that “[t]he transfer of cocaine was not the result of unfair inducement.” Read together,
6 Instructions 8 and 14 fully and correctly inform the jury on the defense of subjective
7 entrapment. See, e.g., In re Alberto L., 2002-NMCA-107, ¶¶ 8-9. Because a
8 reasonable juror would not have been misdirected by these instructions, reversal is not
9 warranted. See Parish, 118 N.M. at 42, 878 P.2d at 991.
10 We decline Defendant’s invitation to extend Parish to cover subjective
11 entrapment. In Parish, the New Mexico Supreme Court reversed a voluntary
12 manslaughter conviction because the jury instruction did not contain an element
13 requiring the jury to find that the accused had not acted in self-defense. 118 N.M. at
14 41, 878 P.2d at 990. Like the unfair inducement at issue here, self-defense was an
15 element of manslaughter that the state was required to disprove beyond a reasonable
16 doubt. Id. at 43-44, 878 P.2d at 992-93. However, the manslaughter and self-defense
17 instructions, read as a whole, did not correctly convey this burden. Id. at 44, 878 P.2d
18 at 993. Unlike the instructions at issue in Parish, the instructions here clearly convey
19 to a reasonable juror how the defense works: namely, that the jury must acquit
16
1 Defendant of trafficking cocaine if the State fails to prove that Defendant was not
2 unfairly induced. We conclude that the additional language requested by Defendant
3 was not required.
4 F. Refusal to Strike Jurors for Cause
5 Defendant’s sixth argument is that the court erred in refusing to strike three
6 jurors for cause. “The trial court may properly exclude a juror for cause if the juror’s
7 views would substantially impair the performance of the juror’s duties in accordance
8 with the instructions and oath.” State v. Clark, 1999-NMSC-035, ¶ 10, 128 N.M. 119,
9 990 P.2d 793. “Whether a prospective juror should be excused for cause rests within
10 the sound discretion of the trial court.” State v. Hernandez, 115 N.M. 6, 22, 846 P.2d
11 312, 328 (1993). We will not disturb the district court’s ruling absent manifest error
12 or a clear abuse of discretion. Id. The burden of establishing abuse of discretion rests
13 on the moving party. Id.
14 Defendant argues that the first juror, Andrea Sanchez, should have been struck
15 for cause because during voir dire she stated that her “mind would be on her classes
16 or her son and not on the trial.” In fact, Ms. Sanchez said that her mind would be “in
17 and out” of court and that she “[couldn’t] say [her] full attention would be here.”
18 However, she then indicated that she could concentrate “if that’s what [she] had to
19 do.” Defendant used a preemptory on Ms. Sanchez. Our courts have recognized that
17
1 the district court is in the best position to assess the juror’s state of mind. Clark,
2 1999-NMSC-035, ¶ 10. Defendant points to no abuse of discretion here, and we find
3 none.
4 Defendant also objects to the denial of his request to strike Rowdy Wade for
5 cause. Mr. Wade indicated that he felt that stiffer drug laws and sentences might help
6 the government win the war on drugs. The State argued that Defendant had not gone
7 into enough detail with Mr. Wade to provide cause, and the district court denied the
8 strike. Mr. Wade was seated on the jury. Defendant does not indicate on appeal how
9 this choice was abuse of discretion. Furthermore, we have indicated that where there
10 is genuine concern about a juror, an effort should be made to develop an adequate
11 record. See State v. Dobbs, 100 N.M. 60, 72, 665 P.2d 1151, 1163 (Ct. App. 1983).
12 We have examined the record and conclude the district court did not abuse its
13 discretion in denying the motion to strike Mr. Wade for cause.
14 Finally, Defendant objects to the denial of his motion to strike Mr. Anderson
15 from the jury for cause. As Mr. Anderson was not empaneled, we need not consider
16 the issue. See State v. Fernandez, 117 N.M. 673, 677, 875 P.2d 1104, 1108 (Ct. App.
17 1994) (“In the absence of prejudice, there is no reversible error.”).
18
1 G. Refusal to Quash Indictment
2 Defendant’s seventh argument is that the district court erred by denying his
3 motion to quash the Grand Jury Indictment. As support for this argument, he cites
4 NMSA 1978, Section 31-6-8 (1983), which requires that “[a]ll proceedings in the
5 grand jury room . . . shall be reported verbatim.” Defendant’s argument appears to be
6 that because the transcripts of the audio recordings of the proceedings contain some
7 “inaudibles,” the statute was violated and the entire indictment should be quashed.
8 Initially, we note that review of this issue by extraordinary writ would have
9 been preferable to the method pursued here. However, it is not clear that State v.
10 Gallegos forecloses post-conviction review of the denial of a motion to quash an
11 indictment where the grounds do not go to the absence of probable cause to indict.
12 See 2009-NMSC-017, ¶ 19, 146 N.M. 88, 206 P.3d 993. At least some of our cases
13 on this topic have been handled on direct appeal. See State v. Baird, 90 N.M. 678, 568
14 P.2d 204 (Ct. App. 1977).
15 State v. Bigler rejected a per se prejudice rule for Section 31-6-8 and held that
16 to obtain a remedy for a violation of that section a defendant must show actual
17 prejudice. 98 N.M. 732, 734, 652 P.2d 754, 756 (Ct. App. 1982); see also State v.
18 Weiss, 105 N.M. 283, 285, 731 P.2d 979, 981 (Ct. App. 1986). Although Defendant
19 generally claims he was prejudiced by not having a full record upon which he could
19
1 search for potential impeachment, he fails to point to instances of material fact from
2 the transcript that might have allowed him to impeach where he was otherwise unable
3 to impeach at trial. Furthermore, as Defendant did not supplement the record with the
4 recording, we are unable to examine it ourselves, and cannot verify his argument
5 below that the inaudibles might include multiple words. The burden is on Defendant
6 to bring up a record sufficient for review on the issues he raises on appeal. Franklin,
7 78 N.M. at 129, 428 P.2d at 984. Defendant’s argument that the grand jury relied
8 upon the inaudible statements to find probable cause is, of course, foreclosed by his
9 conviction. See Gallegos, 2009-NMSC-017, ¶ 19.
10 H. Cumulative Error
11 “The doctrine of cumulative error requires reversal when a series of lesser
12 improprieties throughout a trial are found, in aggregate, to be so prejudicial that the
13 defendant was deprived of the constitutional right to a fair trial.” State v. Duffy, 1998-
14 NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, modified on other grounds by State
15 v. Gallegos, 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828. However, when
16 there is no error, “there is no cumulative error.” State v. Aragon, 1999-NMCA-060,
17 ¶ 19, 127 N.M. 393, 981 P.2d 1211. Having found no error here, we conclude there
18 is no cumulative error.
19 III. CONCLUSION
20
1 For the foregoing reasons, we affirm the district court and Defendant’s
2 convictions.
3 IT IS SO ORDERED.
4
5 MICHAEL D. BUSTAMANTE, Judge
6 WE CONCUR:
7
8 JONATHAN B. SUTIN, Judge
9
10 TIMOTHY L. GARCIA, Judge
21