This decision of the New Mexico Court of Appeals was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Court of
Appeals.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39916
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RICHARD MALISZEWSKI,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Joseph Montano, District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Michael J. Thomas, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
BOGARDUS, Judge.
{1} Defendant Richard Maliszewski appeals his conviction for voluntary
manslaughter, contrary to NMSA 1978, Section 30-2-3(A) (1994). Defendant contends
that (1) the district court committed evidentiary errors that deprived Defendant of a fair
trial; (2) the district court erred in denying Defendant’s request to include specific
language in a jury instruction; and (3) the district court’s errors amounted to cumulative
error. For the following reasons, we affirm Defendant’s conviction.
BACKGROUND
{2} The State charged Defendant with second degree murder, contrary to NMSA
1978, Section 30-2-1(B) (1994), along with the lesser included offense of voluntary
manslaughter. At trial, Defendant did not dispute that he shot and killed Christopher
Yazzie (Victim), but claimed that he did so in self-defense.
{3} The shooting was the culmination of an ongoing dispute between Defendant and
Victim, who were neighbors. At first their relationship was amicable, but it degraded
over time as Victim began to drink excessively and became unpredictable and violent.
Defendant witnessed Victim engage in multiple violent altercations in the neighborhood
over the coming years. On one occasion, Defendant witnessed Victim beating a man in
his driveway. Defendant also witnessed numerous altercations between Victim and the
police.
{4} Personal encounters between Defendant and Victim also became contentious.
Victim threatened Defendant by showing him a modified baseball bat with knives duct-
taped to the bat, and in 2017 the two got into an argument after Victim borrowed
Defendant’s phone and would not return it. In 2018, Victim had his water cut off and
began asking neighbors for help. Defendant initially agreed to allow Victim to fill up
water jugs from his hose but requested that Victim come ask him for permission before
taking water. Despite Defendant’s request, Victim “would come around and help himself
to the water.”
{5} On the day of the shooting, Defendant caught Victim with his girlfriend,
Calvinlena Tso (Girlfriend), taking water from the main waterline leading to Defendant’s
house. Defendant told Victim that he did not want Victim or Girlfriend to come back on
his property. A short time later, Girlfriend returned to Defendant’s door asking for water
and Defendant refused. Girlfriend warned Defendant that she was going to tell Victim
that he refused to give her water. Victim came out into his front yard and started yelling
at Defendant and challenged him to a fight yelling: “I’m gonna get water. I’m going to
burn your house down. I’m going to beat your ass.”
{6} Defendant retrieved his pistol from inside his house and approached the waist-
level wall separating Defendant’s driveway from Victim’s front yard. Victim instructed
Girlfriend to get the modified bat from the house. Defendant then moved closer with his
gun raised until he was standing at the wall. Victim approached the wall unarmed and
said, “It’s time, [and] you need to die.” Defendant testified that he had seen Victim jump
the wall before and, upon hearing Victim’s threat, felt in that moment that “it was going
to be him or me, and I didn’t want it to be me.” Defendant shot Victim before Victim
reached for the wall and he fell to the ground and died. Defendant then called 911.
{7} Defendant claimed that he acted in self-defense—requiring acquittal—or,
alternatively, that he acted with adequate provocation—requiring reduction of his
conviction to voluntary manslaughter. See UJI 14-5171 NMRA (stating that if the jury
finds “a reasonable doubt as to whether the defendant acted in self[-]defense [it] must
find the defendant not guilty”); see also UJI 14-220 NMRA (“The difference between
second degree murder and voluntary manslaughter is sufficient provocation . . .
[s]ufficient provocation reduces second degree murder to voluntary manslaughter.”).
The evidentiary disputes centered on the admission of character evidence and
impeachment evidence critical to the elements of self-defense. See Rule 11-404(A)(2)
NMRA (discussing when character evidence of the defendant’s or victim’s pertinent
character trait is admissible in criminal trials); see also Rule 11-405 NMRA (discussing
in what form character evidence may be admitted). The jury convicted Defendant of
voluntary manslaughter. With these facts in mind, we address each of Defendant’s
arguments in turn.
DISCUSSION
I. Evidentiary Errors
{8} Defendant claims that the district court erred by (1) preventing him from
impeaching multiple state witnesses regarding Victim’s character for violence, including
Girlfriend and Defendant’s neighbor; (2) excluding Officer Cadroy’s testimony of an
encounter with Victim the day before the shooting, and excluding evidence of the
precise amount of alcohol and fentanyl in Victim’s body at the time of his death; (3)
excluding the audio of Officer Formento’s lapel video; and (4) admitting Detective
Juarez’s opinion testimony regarding what was occurring in the surveillance video
already in evidence. We conclude that any errors were harmless and affirm.
{9} We review the district court’s admission or exclusion of evidence for an abuse of
discretion. See State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72.
“An abuse of discretion occurs [either] when the ruling is clearly against the logic and
effect of the facts and circumstances of the case,” State v. Rojo, 1999-NMSC-001, ¶ 41,
126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted), or when the
trial court “applies an incorrect standard, incorrect substantive law, or its discretionary
decision is premised on a misapprehension of the law.” Aragon v. Brown, 2003-NMCA-
126, ¶ 9, 134 N.M. 459, 78 P.3d 913. We cannot conclude that “the trial court abused its
discretion by its ruling unless we can characterize it as clearly untenable or not justified
by reason,” Rojo, 1999-NMSC-001, ¶ 41 (internal quotation marks and citation omitted),
or as a misapprehension or misapplication of the law. See State v. Lymon, 2021-NMSC-
021, ¶ 12, 488 P.3d 610. Absent a clear abuse of discretion we will not reverse the
ruling below. Sarracino, 1998-NMSC-022, ¶ 20.
A. Impeachment
{10} Defendant argues that the district court erred by limiting his impeachment of
Girlfriend and his neighbor Sean Byram regarding their knowledge of Victim’s previous
violent behavior. Defendant sought to impeach Girlfriend when she denied knowledge of
Victim’s character for violence with a specific altercation during which she stabbed
Victim in self-defense. Although the district court prohibited Defendant from directly
eliciting testimony of the stabbing incident under Rule 11-405, the district court ruled
that Defendant could use it for impeachment if Girlfriend opened the door to such
testimony. Girlfriend, however, admitted that Victim was violent and unpredictable when
he was drunk, and therefore did not open the door to impeachment with specific acts.
See Rule 11-405(A) (stating that “the court may allow an inquiry into relevant specific
instances of the [victim]’s conduct” on cross-examination). Therefore, Defendant was
not prevented from impeaching Girlfriend and we see no error in the district court’s
ruling.
{11} Defendant also sought to question Byram about whether he had witnessed
Victim becoming violent when drinking, intending to impeach him with his knowledge of
Victim’s previous violent acts. Defendant contended that Byram’s knowledge of Victim’s
character was admissible as a prior inconsistent statement, challenging the basis of his
knowledge in support of the opinion he espoused, or illustrating his bias. The district
court prevented Defendant from questioning Byram about Victim’s prior violent acts
because they were inadmissible under Rule 11-405. Even if we assume the district
court erred in preventing Defendant from impeaching Byram, such error was harmless.
{12} “We review improperly admitted [or excluded] evidence for non[]constitutional
harmless error.” State v. Serna, 2013-NMSC-033, ¶ 22, 305 P.3d 936.
“[N]on[]constitutional error is harmless when there is no reasonable probability the error
affected the verdict.” State v. Tollardo, 2012-NMSC-008, ¶ 36, 275 P.3d 110 (emphasis,
internal quotation marks, and citation omitted). Defendant bears the initial burden of
establishing that the claimed evidentiary errors had a probable impact on the jury’s
verdict. See State v. Astorga, 2015-NMSC-007, ¶ 43, 343 P.3d 1245 (“Defendant bears
the initial burden of demonstrating that he was prejudiced by the error.”). To determine
whether the defendant established that the claimed evidentiary errors had a probable
effect on the jury’s verdict, we “must evaluate all circumstances surrounding the error.”
State v. Leyba, 2012-NMSC-037, ¶ 24, 289 P.3d 1215. In doing so, we examine “the
source of the error, the emphasis placed on [it], evidence of the defendant’s guilt apart
from the error, the importance of the erroneously admitted [or excluded] evidence to the
prosecution’s case, and whether the erroneously admitted evidence was merely
cumulative.” Serna, 2013-NMSC-033, ¶ 23. Such review necessarily requires a case-by-
case analysis and thus the impact of an error in two factually analogous cases might in
one case be harmful and be harmless in the other. Tollardo, 2012-NMSC-008, ¶ 44.
{13} We conclude that the district court’s error, if any, in preventing Defendant from
impeaching Byram was harmless. See Serna, 2013-NMSC-033, ¶ 23. Although the
source of the error stemmed from the State’s objection, all the other factors indicate the
error was harmless. See id. First, the emphasis placed on Byram’s characterization of
Victim as nonviolent and its importance to the State’s case was marginal. The State
only once mentioned Byram’s testimony in closing arguments. Instead, the State
focused on the surveillance video footage as the crucial evidence to rebut Defendant’s
claim of self-defense, emphasizing the importance of videos thirty-three separate times
during closing. The State also relied on Defendant’s own testimony to rebut whether his
fear of Victim was reasonable. The State argued that Defendant’s prior interactions with
Victim and his testimony that he shot Victim before Victim could “grab the fence”
separating them indicated he was not afraid of Victim and was not acting out of fear.
Therefore, Byram’s testimony of Victim’s character for peacefulness was not
emphasized by the State and unimportant to the State’s case overall.
{14} Second, any impeachment of Byram regarding Victim’s character for violence
would have been cumulative. Defense counsel elicited reputation and opinion testimony
regarding Victim’s violent and unpredictable nature from nearly every witness: including
Girlfriend, Officer Cadroy, Defendant, Defendant’s son, Officer Bonet, and Skylar Rice.
As well, defense counsel elicited testimony of specific acts of Victim’s violence through
multiple witnesses. The jury heard ample evidence establishing Victim’s character for
violence, and thus impeachment of Byram would have been cumulative.
{15} Finally, substantial evidence was presented that Defendant did not act in self-
defense: (1) Defendant escalated a verbal altercation by retrieving a firearm from inside
his home; (2) Defendant approached the fence separating his own property from
Victim’s property first, bringing the firearm he retrieved from inside; (3) Victim was
unarmed during the course of the entire altercation; and (4) Defendant shot Victim
before Victim had the opportunity to cross the property line. All of this evidence supports
the conclusion that Defendant was not acting in self-defense. Therefore, the district
court’s error, if any, in preventing Defendant from impeaching Byram was harmless.
B. Exclusion of Officer Cadroy’s Testimony and the Amount of Alcohol and
Fentanyl in Victim’s Body
{16} Defendant contends that the district court abused its discretion by excluding
evidence of Officer Cadroy’s encounter with Victim the day before the shooting and by
excluding the amount of alcohol and fentanyl in Victim’s body at the time of death.
Because we presume that the trial court is correct and Defendant failed to clearly
demonstrate that the trial court erred, we are not persuaded. See State v. Aragon,
1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (“[I]t is [the d]efendant’s burden
on appeal to demonstrate any claimed error below.”).
{17} The district court found that the relevance of Officer Cadroy’s encounter with
Victim the day before the shooting was outweighed by its prejudicial effect by
determining that the lapse of time between the incident and the shooting was too great
for the interaction to be relevant to Victim’s level of intoxication. See Rule 11-403
NMRA. Defendant asserts that Officer Cadroy’s encounter with Victim is admissible to
corroborate other evidence of Victim’s violent character but does not explain how the
evidence is relevant to Victim’s intoxication at the time of the shooting nor how the
corroborative effect of the testimony is not outweighed by its prejudicial effect.
Therefore, we decline to consider the matter further. See State v. Candelaria, 2019-
NMCA-032, ¶ 48, 446 P.3d 1205 (declining to review an undeveloped claim because
“we will not review unclear arguments, or guess at what a party’s arguments might be”
(alterations, internal quotation marks, and citation omitted)).
{18} Defendant contends that the district court also erred by excluding the levels of
alcohol and fentanyl in Victim’s body at his time of death. The district court concluded
that, without expert explanation regarding the effects and the amounts of alcohol and
fentanyl found in Victim’s body would have had, the raw numbers could confuse the
jury. On appeal, Defendant does not address this rationale for exclusion either, and we
therefore have no basis for concluding that the district court abused its discretion. See
Aragon, 1999-NMCA-060, ¶ 10 (explaining it is appellant’s burden to show why the
district court erred).
C. Exclusion of Audio from Officer Formento’s Lapel Video
{19} Defendant argues that the district court’s exclusion of the audio from Officer
Formento’s lapel video was error. Defendant sought to play nine minutes of Officer
Formento’s lapel video along with the accompanying audio to show the jury Defendant’s
frail health and fear immediately after the shooting in order to corroborate the
reasonableness of Defendant’s actions. The district court allowed Defendant to play six
minutes of the lapel video but excluded the audio as cumulative and containing hearsay.
We are not persuaded that this was an abuse of discretion.
{20} Although Defendant argues on appeal that the district court’s ruling that the audio
contained hearsay was erroneous, he does not address the district court’s ruling related
to the cumulative nature of the audio. The lapel video without the audio recording, along
with Officer Formento’s testimony demonstrated the extent of Defendant’s medical
conditions and physical demeanor after the shooting. Defendant also elicited testimony
from other witnesses regarding Defendant’s demeanor after the shooting. Defendant
does not explain, in light of this additional evidence about Defendant’s demeanor after
the shooting, how the district court abused its discretion in determining the audio was
cumulative. We therefore decline to consider the matter further. See Candelaria, 2019-
NMCA-032, ¶ 48 (declining to review an undeveloped claim because “we will not review
unclear arguments, or guess at what a party’s arguments might be” (alterations, internal
quotation marks, and citation omitted)).
D. Admission of Detective Juarez’s Testimony and Impeachment Evidence
{21} Lastly, Defendant argues that the district court’s admission of Detective Juarez’s
opinion testimony and refusal to allow Defendant to impeach her with her prior grand
jury testimony was error. We agree with Defendant that the district court erred in
allowing Detective Juarez to opine on the content of the video, as she was in no better
position than the jury to interpret the video. See State v. Chavez, 2022-NMCA-007, ¶
42, 504 P.3d 541 (holding that it was error to allow an officer to testify as to what was
shown in a video already in evidence because “she was no more likely than the jury to
be able to accurately determine” what the video showed). Nevertheless, we conclude
the error was harmless. Furthermore, we conclude that the district court properly
exercised its discretion in preventing Defendant from impeaching Detective Juarez
under Rule 11-403.
{22} The district court’s decision to allow Detective Jaurez to opine on the contents of
the surveillance video was harmless. See Serna, 2013-NMSC-033, ¶ 23 (listing the
factors we consider when determining if an error is harmless). Again, the State’s
emphasis on Detective Juarez’s opinion was minimal. Although it is true that the
surveillance video footage of the altercation was critical to the State’s case, the State
did not mention Detective Juarez’s description of what occurred in the video once during
closing arguments. Instead, the State encouraged the jury to “[r]eview the video, and
watch it all,” arguing that the video itself was the only necessary evidence and “worth
[more] than [the] testimony.” Moreover, although it is true that the quality of the
surveillance video footage is poor, and it’s difficult to see whether Victim attempts to
grab the fence before the shooting, and whether or not Victim attempted to jump the
fence bears little on Defendant’s guilt. Victim was unarmed and Defendant was the
individual who escalated the verbal confrontation to deadly encounter. Defendant was
also the individual who approached the fence first. Thus, whether or not Victim grabbed
for the fence was unimportant to the State’s case.
{23} Second, as stated above, the remaining evidence showing that Defendant did not
act in self-defense is substantial. Therefore, Defendant failed to establish that the
admission of Detective Juarez’s opinion had a probable impact on the jury’s verdict and
thus we conclude that any error in admitting her opinion was harmless. See Astorga,
2015-NMSC-007, ¶ 43.
{24} Finally, impeaching Detective Juarez with prior grand jury testimony about a
hearsay statement already in evidence was likely to confuse the jury and waste time.
See State v. Barela, 2019-NMCA-005, ¶ 26, 458 P.3d 501; see also Rule 11-403
(stating that “[t]he court may exclude relevant evidence if its probative value is
substantially outweighed by . . . wasting time”). Thus, even if admission of Detective
Juarez’s opinion was error, the evidence was harmless and the refusal to allow
impeachment was appropriate under Rule 11-403. See State v. Patterson, 2017-NMCA-
045, ¶ 15, 395 P.3d 543.
II. Jury Instruction
{25} Defendant contends that the district court erred in failing to include the bracketed
language regarding “defending property” from UJI 14-5190 NMRA in jury instruction No.
14, its duty to retreat instruction. Specifically, he argues that failing to include such
language was error because there was sufficient evidence presented at trial to support
including it. See State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69.
Defendant also contends that omitting the requested language from the instruction
could leave the jury with the erroneous understanding that as a matter of law either (1)
Defendant became the first aggressor when he retrieved his gun and returned to his
yard; or (2) it was unreasonable for Defendant not to retreat into his home. See State v.
Romero, 2005-NMCA-060, ¶ 8, 137 N.M. 456, 112 P.3d 1113.
{26} “The propriety of jury instructions given or denied is a mixed question of law and
fact,” which this Court reviews de novo. State v. Salazar, 1997-NMSC-044, ¶ 49, 123
N.M. 778, 945 P.2d 996. If the contended failure to provide a jury instruction was
preserved below, we review the failure to do so for reversible error. See State v.
Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134. Although “we view the
evidence [presented to the district court] in the light most favorable to the giving of the
requested instruction,” Romero, 2005-NMCA-060, ¶ 8, failure to give a jury instruction
on the defendant’s theory of the case is only reversible error if sufficient evidence has
been presented at trial to “allow reasonable minds to differ as to all elements of the
offense.” State v. Skippings, 2011-NMSC-021, ¶ 10, 150 N.M. 216, 258 P.3d 1008
(internal quotation marks and citation omitted). Therefore, the district court need not
provide a defendant’s requested language absent sufficient evidence supporting it. See
State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355. Moreover,
although it is also reversible error if a given jury instruction would have confused or
misdirected a reasonable juror, Benally, 2001-NMSC-033, ¶ 12, a given jury instruction
is sufficient when, reading all the instructions as a whole, “they fairly and correctly state
the applicable law.” State v. Rushing, 1973-NMSC-092, ¶ 20, 85 N.M. 540, 514 P.2d
297.
{27} The jury instruction at issue reads, “A person who is defending against an attack
need not retreat. In the exercise of the right of self[-]defense, a person may stand the
person’s ground and defend himself.” The district court determined that Defendant was
not entitled to the “defending property” language because his testimony about Victim
uttering a threat against property before Victim approached the wall at the property line
did not warrant giving the instruction. Considering Defendant’s testimony, the district
court concluded that the defense’s theory was that Defendant acted in self-defense
when he shot Victim at Defendant’s property line. Defendant argued that if the court did
not add the “defending property language” to the instruction, it should prohibit the State
from arguing that Defendant should have stayed in his home. The district court refused
to limit the State’s argument.
{28} Even viewing the evidence in the light most favorable to including the additional
language in the instruction, see Romero, 2005-NMCA-060, ¶ 8, we perceive no error.
The requested language was not supported by Defendant’s theory of the case nor by
evidence presented. Defendant testified that he shot Victim because Victim threatened
to kill him. Moreover, Defendant failed to request a separate instruction on defending
property or defending habitation despite his claim that including such language was
critical to his case. See UJI 14-5170 NMRA; UJI 14-5180 NMRA. Accordingly, we
conclude that the district court did not err.
III. Cumulative Error
{29} Finally, Defendant contends that the cumulative effect of the claimed errors
denied him a fair trial. See State v. Lopez, 2018-NMCA-002, ¶ 36, 410 P.3d 226
(“Cumulative error requires reversal of a defendant’s conviction when the cumulative
impact of errors which occurred at trial was so prejudicial that the defendant was
deprived of a fair trial.” (internal quotation marks and citation omitted)). Although we
have found one error occurred and assumed another, Defendant has failed to develop
an argument, with citation to persuasive authority, why these purported errors amounted
to cumulative error such that he was deprived of a fair trial. See State v. Martin, 1984-
NMSC-077, ¶ 17, 101 N.M. 595, 686 P.2d 937 (“The doctrine cannot be invoked if no
irregularities occurred, or if the record as a whole demonstrates that a defendant
received a fair trial.” (citation omitted)). We therefore decline to review this argument
further.
CONCLUSION
{30} We affirm.
{31} IT IS SO ORDERED.
KRISTINA BOGARDUS, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
ZACHARY A. IVES, Judge