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2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
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5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 30,225
10 RICARDO RODRIGUEZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Thomas J. Hynes, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 B. Douglas Wood, III, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 FRY, Chief Judge.
23 Defendant argues that the district court erred in not granting a mistrial after voir
24 dire. We issued a calendar notice proposing to summarily affirm Defendant’s
25 conviction. Defendant filed a timely memorandum in opposition and a motion to
1 amend the docketing statement with an additional issue, which was that the district
2 court erred in admitting hearsay testimony. After due consideration, we deny the
3 motion to amend and affirm Defendant’s conviction.
4 DISCUSSION
5 Mistrial
6 Defendant raised one issue in his docketing statement. Defendant argued that
7 the district court erred in not granting a mistrial after voir dire. [DS 9] Defendant
8 raised this issue pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and
9 stated that he was not aware of any authority to support his position. [DS 10]
10 Defendant was charged with aggravated driving while under the influence
11 (DWI) and child abuse. [RP 14-15] According to the docketing statement, defense
12 counsel’s strategy was to concede that there was overwhelming evidence of DWI, but
13 argue that mere driving under the influence with a child in the vehicle does not in
14 itself constitute reckless endangerment of a child. [DS 6] Defendant claims that during
15 voir dire, defense counsel asked the prospective jurors if they could be fair and
16 impartial when considering evidence of reckless endangerment if they knew that the
17 evidence was overwhelming that Defendant was driving while under the influence.
18 [DS 7; MIO 2-3] According to defense counsel, about half the jury pool raised their
19 hands, but the district court told the jury pool to ignore defense counsel’s question.
20 [DS 7; MIO 3] During jury selection in chambers, defense counsel moved for a
21 mistrial. [MIO 3] The district court denied the motion and stated that it found the
2
1 question improper, and that if it permitted the question, there would not be enough
2 panelists to serve on the jury. [MIO 3]
3 On appeal, Defendant contends that the district court erred in not granting the
4 mistrial. [DS 9; MIO 5-13] The trial court’s ruling on a motion for a mistrial is
5 addressed to the sound discretion of the trial court and will not be disturbed absent a
6 showing of abuse of discretion. See State v. McDonald, 1998-NMSC-034, ¶ 26, 126
7 N.M. 44, 966 P.2d 752; see also State v. Fry, 2006-NMSC-001, ¶ 52, 138 N.M. 700,
8 126 P.3d 516 (filed 2005).
9 Our calendar notice proposed to summarily affirm primarily because we were
10 not persuaded that Defendant demonstrated that he was prejudiced by the district
11 court’s statement to the jurors. In the docketing statement, Defendant contended that
12 the court “torpedoed” the defense by telling the prospective jurors to disregard defense
13 counsel’s question. [DS 8] We understood Defendant to argue that the entire jury pool
14 was tainted by the district court’s statement. However, we were not persuaded that
15 Defendant demonstrated that prejudice. See In re Ernesto M., Jr., 1996-NMCA-039,
16 ¶ 10, 121 N.M. 562, 915 P.2d 318. (“An assertion of prejudice is not a showing of
17 prejudice.”).
18 In response, Defendant first argues that the district court abused its discretion
19 in not allowing defense counsel sufficient latitude to probe potential jurors for bias
20 with respect to their ability to consider the charges separately. [MIO 5-11] We are not
21 persuaded.
3
1 We acknowledge that counsel generally should be allowed considerable latitude
2 in questioning prospective jurors in order to assure the selection of an impartial jury.
3 See State v. Allen, 2000-NMSC-002, ¶ 83, 128 N.M. 482, 994 P.2d 728 (filed 1999).
4 However, “courts are given broad discretion in limiting the scope of questioning
5 during voir dire.” State v. Sosa, 1997-NMSC-032, ¶ 14, 123 N.M. 564, 943 P.2d
6 1017. Courts are not required to allow every question defense counsel wishes to ask.
7 Id. “If the questions allowed are sufficient to probe juror bias on a specific issue, the
8 court’s refusal to allow additional . . . questions does not amount to an abuse of
9 discretion.” Id.
10 We do not believe that the district court abused its discretion in finding that
11 defense counsel’s question was improper. Rather than ask general, hypothetical
12 questions about the prospective jurors’ feelings about DWI or if they could consider
13 charges separately if Defendant was guilty of one, defense counsel informed the
14 prospective jurors that the evidence was overwhelming that Defendant was driving
15 under the influence and then asked the potential jurors if they could be fair and
16 impartial jurors when it came to deciding whether Defendant committed child abuse.
17 [MIO 2-3] We do not think the district court erred if it thought the question was
18 improper because it required the jurors to consider how they would respond to the
19 specific facts in Defendant’s case. See id. ¶ 15. Although Defendant appears to be
20 arguing that defense counsel wanted to see if the prospective jurors would be able to
21 consider the child abuse charge separately, the facts concerning Defendant’s DWI
22 were highly relevant to the child abuse charge. As phrased by defense counsel, the
4
1 question was not designed to expose potential bias, but to ask the potential jurors to
2 decide the facts of the case, and to do so under facts highly unfavorable to Defendant.
3 Under these circumstances, we are not persuaded that the district court’s statement to
4 the prospective jurors to disregard defense counsel’s question was unjustified.
5 Because the question was not proper, we also are not persuaded that the district
6 court erred in not excusing the potential jurors who raised their hands in response to
7 defense counsel’s question. Although Defendant portrays the court’s statement that
8 it would not have enough jurors left as elevating efficiency over fairness, we believe
9 that the district court’s statement simply recognized why it could not allow the
10 improper question.
11 We further are not persuaded that the district court’s statement prevented
12 Defendant from conducting sufficient voir dire. Although Defendant claims that by
13 striking his question the district court made it impossible to know the nature and
14 extent of the bias held by the potential jurors, [MIO 8] we disagree. There is no
15 indication that the district court unduly restricted defense counsel from asking more
16 appropriate questions that did not require the prospective jurors to consider the
17 specific facts of the case. Moreover, the district court told the jurors that they should
18 apply the law as stated in the instructions to the facts of the case and that their verdict
19 should not be influenced by prejudice. See Sosa, 1997-NMSC-032, ¶ 15 (recognizing
20 that “jurors’ assurances that they are able to set aside their biases in order to reach a
21 verdict on the basis of the court’s instruction on the law and the facts presented at trial
22 are relevant to the sufficiency of voir dire”). Thus, to the extent Defendant now
5
1 argues that his question concerned the prospective jurors’ ability to consider the
2 charges separately if Defendant was guilty of one, we believe the jurors’ assurances
3 adequately addressed this concern.
4 Moreover, as discussed in our calendar notice, even if there was a clear abuse
5 of discretion by the district court in the conduct of voir dire, we will reverse only if
6 it resulted in prejudice to Defendant. To prevail on his claim, Defendant bears the
7 burden of demonstrating that the jury was not fair and impartial and must show that
8 the selected jurors were biased or prejudiced. See State v. Gallegos, 2009-NMSC-
9 017, ¶ 22, 146 N.M. 88, 206 P.3d 993. Our calendar notice noted that the docketing
10 statement pointed to no evidence to establish that the district court’s statement
11 compromised the selected jurors’ ability to be fair and impartial. To the contrary, the
12 record indicates that the district court asked the prospective jurors several times if they
13 could be fair and told them that they would have to follow the jury instructions. [RP
14 92-96] In instructing the jury, the district court told the jurors that they should apply
15 the law as stated in the instructions to the facts of the case and that their verdict should
16 not be influenced by prejudice. [RP 120] Under these circumstances, we presume the
17 jurors followed the court’s instructions. See State v. Gardner, 2003-NMCA-107, ¶
18 12, 134 N.M. 294, 76 P.3d 47 (relying on the presumption that the jury followed the
19 court’s instructions after the defendant was unable to present any evidence of juror
20 bias). Thus, we are not persuaded that Defendant demonstrated prejudice.
21 In addition, our calendar notice noted that it was unlikely that the district court’s
22 statement tainted the jury based on the tape log of the jury selection process. After
6
1 denying the motion for mistrial, the district court removed several jurors for cause.
2 [RP 90] We noted that Defendant raised no objections to the removal of the jurors and
3 only asked the district court to remove one juror for cause based on the response to
4 defense counsel’s question. [RP 90] When defense counsel asked the potential jurors
5 if they could be fair and impartial in considering whether Defendant committed child
6 abuse knowing that there was overwhelming evidence that he committed DWI, Juror
7 8 said no. [RP 95] Even if we assumed that the district court abused its discretion in
8 not removing Juror 8 for cause, we were not persuaded that Defendant had shown that
9 he was prejudiced by the district court’s failure to remove the juror. The record
10 indicates that Defendant only used four peremptory challenges. [RP 109-10]
11 Defendant did not argue in the docketing statement that he was compelled to use his
12 peremptory challenges on persons who should be excused for cause or that he
13 exercised all of his peremptory challenges before the court completed venire. See
14 Benavidez v. City of Gallup, 2007-NMSC-026, ¶¶ 8-13, 141 N.M. 808, 161 P.3d 853
15 (holding that a plaintiff was not prejudiced during jury selection when a trial court
16 erred in refusing to excuse a juror for cause who stated he might not be impartial, but
17 the plaintiff did not use all of her peremptory challenges). Under these circumstances,
18 we proposed to hold that Defendant had not demonstrated prejudice during jury
19 selection. We therefore proposed to hold that the district court did not abuse its
20 discretion in denying the motion for a mistrial.
21 In response, Defendant argues that because he was not given a meaningful
22 opportunity to voir dire on the specific issue of bias between the two charges, he did
7
1 not have a meaningful opportunity to recognize how his peremptory challenges might
2 be employed. [MIO 8-9] For reasons already stated, we disagree. We are not
3 persuaded that the district court restrained defense counsel from asking appropriate
4 questions to expose potential bias during voir dire. In addition, the district court
5 informed the jurors that they should follow the jury instructions and that they should
6 not be influenced by prejudice. Also, there is no indication that defense counsel used
7 all of its peremptory challenges to remove jurors who raised their hands or that any
8 of those jurors remained on the panel. Under these circumstances, we are persuaded
9 that the district court’s queries into the jurors’ ability to follow the law and consider
10 the charges separately were adequate. As there is no indication that the empaneled
11 jurors were not able to follow the law, Defendant has not met his burden of
12 demonstrating prejudice.
13 We address one final point raised by Defendant. Defendant continues to argue
14 that the district court should have granted the mistrial because it knew that Defendant
15 intended to ask the question but then told the prospective jurors to disregard it. [MIO
16 12-13] Defendant claims that defense counsel would not have admitted the strength
17 of the evidence against him on DWI if he had known that the district court would not
18 allow his question during voir dire. [Id.]
19 We reject this argument. Defense counsel’s decision to admit that the evidence
20 was overwhelming against Defendant was a matter of strategy announced before voir
21 dire. While the district court was made aware of defense counsel’s strategy, the
22 district court still had discretion to limit the scope of defense counsel’s questioning
8
1 during voir dire. Here, the district court found that defense counsel’s question was
2 improper. We see no abuse of discretion in that ruling. Moreover, as Defendant has
3 not met his burden of demonstrating prejudice, we hold that the district court did not
4 abuse its discretion in denying the motion for a mistrial.
5 Motion to Amend
6 Defendant seeks to add an additional issue, which is that the district court erred
7 in allowing the officer to testify through hearsay about the age of the child in the
8 vehicle. [MIO 5] Defendant contends that Defendant was prejudiced and was denied
9 his constitutional rights under the confrontation clause. [MIO 13-15] Defendant claims
10 that defense counsel preserved this argument by objecting at trial to the State’s attempt
11 to introduce evidence about the passenger’s age. [Id. 4-5]
12 In cases assigned to the summary calendar, this Court will grant a motion to
13 amend the docketing statement to include additional issues if the motion (1) is timely,
14 (2) states all facts material to a consideration of the new issues sought to be raised, (3)
15 explains how the issues were properly preserved or why they may be raised for the
16 first time on appeal, (4) demonstrates just cause by explaining why the issues were not
17 originally raised in the docketing statement, and (5) complies in other respects with
18 the appellate rules. See State v. Rael, 100 N.M. 193, 197, 668 P.2d 309, 313 (Ct.
19 App. 1983). This Court will deny motions to amend that raise issues that are not
20 viable, even if they allege fundamental or jurisdictional error. See State v. Moore, 109
21 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989), overruled on other grounds by State
22 v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).
9
1 Here, we deny the motion to amend because the issue is not viable. First, we
2 note that Defendant claims that this issue was preserved based on defense counsel’s
3 objections. However, Defendant’s motion does not state whether defense counsel
4 objected to the testimony on confrontation clause grounds. State v. Dietrich, 2009-
5 NMCA-031, ¶ 51, 145 N.M. 733, 204 P.3d 748 (providing that preserved issues
6 pursuant to Crawford v. Washington, 541 U.S. 36 (2004), are analyzed under a
7 harmless error standard and un-preserved Crawford issues are reviewed for
8 fundamental error only).
9 We also question Defendant’s assertion that the information about the
10 passenger’s age was testimonial. [MIO 14]
11 Statements are non-testimonial when made in the course of police
12 interrogation under circumstances objectively indicating that the primary
13 purpose of the interrogation is to enable police assistance to meet an
14 ongoing emergency. They are testimonial when the circumstances
15 objectively indicate that there is no such ongoing emergency, and that
16 the primary purpose of the interrogation is to establish or prove past
17 events potentially relevant to later criminal prosecution.
18 State v. Romero, 2007-NMSC-013, ¶ 7, 141 N.M. 403, 156 P.3d 694 (emphasis
19 omitted) (internal quotation marks and citation omitted). Here, Defendant’s
20 memorandum indicates that he learned the passenger’s age when he contacted family
21 members to give the passenger a ride from the scene. [MIO 14] Thus, we are not
22 persuaded that the objective circumstances indicate that the primary purpose of the
23 inquiry was to establish the child’s age for the purposes of furthering the prosecution
24 of Defendant for child abuse.
10
1 Moreover, even if we assume that Defendant preserved the confrontation clause
2 argument and that the statement was testimonial, we reject Defendant’s assertion that
3 the officer’s hearsay testimony was the only evidence that the passenger was a minor.
4 [MIO 14] The officer testified that he saw a child in the car. [MIO 14-15] Thus, even
5 though no other evidence was admitted as to the child’s specific age, the jury could
6 find from the officer’s testimony that the passenger was a minor. Under these
7 circumstances, any error with respect to the hearsay testimony was harmless and did
8 not amount to fundamental error. We therefore reject this issue as not viable.
9 CONCLUSION
10 We deny the motion to amend the docketing statement. We also reject
11 Defendant’s argument that the district court abused its discretion in denying the
12 motion for a mistrial. We affirm.
11
1 IT IS SO ORDERED.
2
3 CYNTHIA A. FRY, Chief Judge
4 WE CONCUR:
5
6 MICHAEL D. BUSTAMANTE, Judge
7
8 JAMES J. WECHSLER, Judge
12