State v. Salas

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-028

Filing Date: June 15, 2010

Docket No. 30,967

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

DEMETRIO A. SALAS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
David W. Bonem, District Judge Pro Tem

Liane E. Kerr, L.L.C.
Liane E. Kerr
Albuquerque, NM

for Appellant

Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM

for Appellee

OPINION

MAES, Justice.

{1} Following a jury trial,1 Demetrio A. Salas (Defendant) was convicted of (1) first-
degree murder in violation of NMSA 1978, Section 30-2-1(A)(1), (2) (1994); (2) attempted
first-degree murder in violation of Section 30-2-1(A)(1) and NMSA 1978, Section 30-28-1

1
Defendant was tried jointly with his co-defendant, David Griego, who is not a party
to this appeal.

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(1963); (3) shooting at a dwelling or occupied building and causing death or great bodily
harm in violation of NMSA 1978, Section 30-3-8(A) (1993); (4) tampering with evidence
in violation of NMSA 1978, Section 30-22-5 (2003); and (5) intimidation of a witness in
violation of NMSA 1978, Section 30-24-3(A)(3) (1997). Pursuant to Rule 12-102(A)(1)
NMRA, Defendant appeals directly to this Court, claiming that (1) the trial court improperly
granted the State’s second motion to reconsider a change of venue under NMSA 1978,
Section 38-3-3 (2003) and NMSA 1978, Section 38-3-7 (1965); (2) the trial court improperly
held that Defendant had violated Batson v. Kentucky, 476 U.S. 79 (1986) by striking a white
male venireperson from the jury, but that the State had not violated Batson by striking
Hispanic venirepersons from the jury; and (3) Defendant’s convictions must be reversed
under the cumulative error doctrine. We reject Defendant’s claims and affirm his
convictions.

I. BACKGROUND

{2} At approximately 2:20 a.m. on September 15, 2005, ten-year-old Carlos Perez
(Victim) was shot to death while sleeping in the bedroom he shared with his older brother,
Ruben Perez (Ruben), at the Gatewood Apartment Complex in Clovis, New Mexico. Nine
gunshots were fired through the boys’ bedroom window, one of which struck Victim in the
head, causing his death.

{3} At trial, the State adduced the following relevant evidence regarding the shooting.
On September 14, 2005, Ruben, a junior at Clovis High School, was threatened at knife point
by Orlando Salas (Orlando). Orlando informed Ruben that his older brother, Defendant,
wanted to fight him. It was arranged that Ruben and Defendant would fight after school.
Ruben reported to the designated location for the fight, but Defendant never appeared.
Ruben went home and later went to sleep in the bedroom that he shared with Victim.

{4} That night, Defendant and Orlando picked up Melissa Sanchez (Melissa), a student
at Clovis High School. Defendant was driving a white Suburban with a blue pinstripe and
carrying a loaded .22 caliber revolver. Defendant drove Orlando, Melissa, and his co-
defendant, David Griego, to the Gatewood Apartment Complex, where he asked Melissa to
point out the apartment in which Ruben, whom he referred to as a “sewer rat,” lived.
Melissa complied by pointing out Ruben’s apartment window.

{5} Defendant then drove to Eric Gutierrez’s (Eric) house, which was located
approximately two blocks away from Ruben’s apartment. Defendant ordered Orlando and
Melissa to get out of the vehicle, explaining that he had to “go do some business” and that
he had “a mission.” Soon thereafter, Defendant and Griego returned, acting “hyped up” like
“they just got a rush out of something.” Defendant informed Melissa that he had just
“blasted nine rounds at that sewer rat’s house.”

{6} At this point, Defendant, Griego, Eric, Orlando, and Melissa heard on the police
scanner that an eleven-year old boy had been shot and that the police were looking for a
“white Suburban with blue lines around [it].” Defendant “started flipping out” and insisted
upon parking his Suburban in Eric’s garage. Melissa became upset and reached out toward
Defendant, but he informed her that she should not touch him because he had gun powder
residue on him. That night and the next day, Defendant repeatedly threatened Melissa “to
keep [her] mouth shut or else.”

II. DISCUSSION

A. Whether the Trial Court Properly Granted the State’s Second Motion to
Reconsider a Change of Venue

{7} Defendant claims that, due to the public excitement and local prejudice surrounding
this case, he could not obtain a fair trial in the Ninth Judicial District, which is composed of
Curry County and Roosevelt County. Defendant argues that the trial court, Judge Joe Parker,
therefore properly ordered a change of venue to Lea County, which is located in the Fifth
Judicial District, and that Judge David W. Bonem improperly reconsidered and modified
Judge Parker’s order, resulting in a second change of venue to Roosevelt County in the Ninth
Judicial District.

{8} The following additional facts and procedural history are relevant to Defendant’s
claim. Prior to trial, Defendant requested a change of venue, claiming that “[t]his case has
received extensive publicity” and, therefore, “Defendant cannot receive a fair trial in the
County of Curry, State of New Mexico, and this case should be moved to another Judicial
District.” Defendant suggested that venue must be changed to a neighboring county outside
of the Ninth Judicial District, such as Lea or Chavez County, to preserve Defendant’s right
to a fair trial. Judge Parker asked Defendant whether he “[had] any numbers” to support his
change of venue motion. Defendant responded that he did not have any numbers because
a survey of prospective jurors would have been cost prohibitive.

{9} The State opposed Defendant’s change of venue motion, claiming that (1) Defendant
had failed to file an affidavit as required by Section 38-3-3(B), (2) the case had not received
extensive publicity, and (3) Defendant had failed to produce any evidence indicating that an
impartial jury could not be obtained in Curry County. Alternatively, the State argued that
if a change of venue is appropriate, then the case must be moved to another county free from
exception within the same judicial district, which in this case, would be Roosevelt County.

{10} Defendant acknowledged that it would be “somewhat easier” to choose a jury in
Roosevelt County, but stated that his “instincts tell [him] real clear that people there are
going to have a few percentage points less knowledge than people in Curry County.”
However, Defendant informed Judge Parker that he would defer to the court’s discretion
with respect to whether Roosevelt County is an appropriate venue.

{11} At the conclusion of the hearing, Judge Parker found, based on his own personal
experience as a member of the community, that the case had been subject to extensive trial
publicity. Judge Parker held that “justice in this matter will be better served by having the

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jury, the jury pool selected from out of county and having this matter heard in a neighboring
county.” Accordingly, Judge Parker ordered venue to be changed from Curry County to Lea
County.

{12} Thereafter, the State filed a motion for reconsideration, arguing in relevant part that
Defendant had “failed to produce any evidence that [he] would be deprived of a fair and
impartial jury if the jurors were selected from Curry County.” Additionally, the State argued
that a change of venue to Lea County would impose a considerable burden on the witnesses
and the family of Victim, who will have to travel from Curry County to Lea County to attend
the trial. The State pointed out that, even if a change of venue is appropriate, then the case
should be moved to Roosevelt County, which “[hadn’t] even published an article about this
[case] in a long time.”

{13} Judge Parker denied the State’s motion for reconsideration, explaining: “I’m not
convinced that I’m without the appropriate discretion to change the venue. It was my
opinion at that time and I haven’t abandoned that opinion. . . . I’ll continue in my position
that this matter will be tried in Lea County.” The State objected because Judge Parker had
failed “to make findings on the record with regard to why we can’t have [the trial] in
Roosevelt County.” Judge Parker found that Roosevelt County was an inappropriate venue
because of “the sense of excitement about the case” and that Section 38-3-3 provides
“sufficient leeway and discretion to make its findings for the trying of this case.”

{14} The State filed a second motion for reconsideration of Judge Parker’s change of
venue order. Thereafter, retired District Court Judge Bonem was assigned to serve as Judge
Pro Tempore in this case. On August 29, 2007, Judge Bonem held a hearing on the State’s
motion. At the outset, Defendant clarified that the State’s motion is “a motion to reconsider
a ruling on a motion to reconsider” because the parties “already had the hearing on the
Motion to Reconsider.” The State conceded that it had previously filed a motion for
reconsideration, but stated that “with all due respect to Judge Parker, [it] did not believe that
the Court specifically followed the law in all of the things necessary to consider a change of
venue.” At the hearing, both the State and Defendant reiterated the same arguments that they
previously had presented to Judge Parker.

{15} Judge Bonem upheld “the previous ruling that the venue from Curry County shall be
changed.” However, according to Section 38-3-7, “where a change of venue is granted, the
case shall be removed to another county within the same judicial district unless the
remaining counties are subject to exception.” Judge Bonem determined that Roosevelt
County was not subject to exception because

Roosevelt County has received approximately one-half (½) of the trial pre-
trial publicity that Curry County has been subjected to. The Court further
finds that media coverage of this case has been essentially non-existent in
Roosevelt County in the past seven (7) months of the date of this order. The

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 Court further finds that substantial time has passed since the alleged incident
in question, approximately one (1) year and eleven (11) months.

Accordingly, Judge Bonem held that “the appropriate venue of this case shall be the Ninth
Judicial District, Roosevelt County.”

{16} “This Court reviews a grant or denial of a motion for change of venue under an abuse
of discretion standard.” State v. Barrera, 2001-NMSC-014, ¶ 11, 130 N.M. 227, 22 P.3d
1177. “The trial court’s discretion in this matter is broad and will not be disturbed on appeal
unless a clear abuse of that discretion can be demonstrated. The burden of establishing an
abuse of discretion is borne by the party that opposes the trial court’s venue decision.” State
v. House, 1999-NMSC-014, ¶ 31, 127 N.M. 151, 978 P.2d 967 (citation omitted).

{17} Additionally, this Court will uphold the trial court’s ruling on a change of venue
motion if it is supported by substantial evidence. See Barrera, 2001-NMSC-014, ¶ 12;
House, 1999-NMSC-014, ¶ 32.

Substantial evidence consists of relevant evidence that might be accepted by
a reasonable mind as adequate to support a conclusion. This Court resolves
all disputed facts and draws all reasonable inferences in favor of the
successful party and disregards all evidence and inferences to the contrary,
viewing the evidence in the light most favorable to the trial court’s decision.
We must be mindful that it is the role of the trial court, and not the appellate
court, to weigh the evidence and determine the credibility of witnesses. We
do not substitute our own judgment for a determination of the trial court
supported by substantial evidence.

Barrera, 2001-NMSC-014, ¶ 12 (citations omitted).

{18} We begin our analysis with a brief review of the statutes governing a change of venue
motion. Section 38-3-3(B)(3) provides:

The venue in all civil and criminal cases shall be changed, upon
motion, to another county free from exception . . . when the party moving for
a change files in the case an affidavit of himself, his agent or attorney, that
he believes he cannot obtain a fair trial in the county in which the case is
pending because . . . of public excitement or local prejudice in the county in
regard to the case or the questions involved in the case, an impartial jury
cannot be obtained in the county to try the case . . . .

Section 38-3-7 further provides:

In all cases where a change of venue is granted, the case shall be
removed to another county within the same judicial district unless the

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 remaining counties are subject to exception, or unless the change of venue
is ordered upon any of the grounds relating to the judge. Under these
circumstances, the case shall be removed to some county of the nearest
judicial district which is free from exception.

To resolve the issue on appeal, we must determine whether Roosevelt County is “subject to
exception” under Sections 38-3-3 and 38-3-7.

{19} The record reflects that Defendant failed to adduce any evidence in support of his
claim that he could not obtain a fair trial in Roosevelt County. For example, Defendant
failed to produce any witnesses, file any affidavits, admit any media articles, or submit any
juror questionnaires exhibiting bias or prejudice. Although defense counsel represented to
the court that there was extensive public excitement and media coverage surrounding this
case, it is well established that “[a]rgument of counsel is not evidence.” State v. Cochran,
112 N.M. 190, 192, 812 P.2d 1338, 1340 (Ct. App. 1991). Accordingly, the evidence was
insufficient to establish that Roosevelt County was subject to exception, and Judge Bonem
properly ordered venue to “be removed to another county within the same judicial district”
as Curry County in accordance with Section 38-3-7.

B. Whether the Trial Court Properly Ruled on the Parties’ Batson Challenges

{20} We next address whether the trial court properly ruled that Defendant’s peremptory
strike against a white male venireperson violated Batson, whereas the State’s peremptory
strikes against Hispanic venirepersons did not. The following additional facts and
procedural history are relevant to this claim. Defendant and his co-defendant, Griego,
received a total of fourteen peremptory challenges to exercise against regular jurors and two
peremptory challenges to exercise against alternate jurors.2 The State received the same
number of peremptory challenges.

{21} During jury selection, the State raised a Batson challenge, pointing out that
Defendant had used nine of his fourteen peremptory challenges to strike “all the white males
on [the] jury panel.” In response, the trial court asked Defendant to supply a rational basis
for the last three venirepersons struck. Defendant provided a race neutral explanation for
each venireperson, after which the trial court stated that it had been “alerted to the [State’s]
concern and [it] will respond appropriately if the pattern continues.” Shortly thereafter,
Defendant exercised his tenth peremptory challenge on a white male. Defendant sua sponte
proffered a rational basis for this peremptory challenge, and jury selection continued.

{22} Defendant subsequently exercised his eleventh peremptory challenge on Juror 19,
a white male. The State renewed its Batson challenge. The trial court noted that “[d]uring

2
Because Defendant and Griego exercised their peremptory challenges jointly, we
hereinafter refer to Defendant and Griego collectively as “Defendant.”

5
proceedings, [Juror 19 had] indicated that if the case went until the fifth he would be out on
a cattle check.” A discussion took place off the record, after which the trial court asked
Defendant to provide a race-neutral explanation for striking Juror 19. Defendant explained:

We based it on his questionnaire and his responses and a tactical
reason. Because I don’t want him as foreman on this jury. And I don’t think
that that has anything to do with his race, it has everything to do with his
power. And the other thing, he’s a crime victim.
And counsel for co-defendant in this case - - well, the reason we think
he’s going to be foreman is because he’s got a Ph.D., and I don’t want one
person controlling this jury, and he will. And that’s our tactical reason,
primarily that.
And the other thing is is that, you know, I’m a rancher as well and I
know what that stuff means, and I just - - if we’re getting down to the last
day and they’re deliberating into that day or two days before, I mean, I think
we’ll be finished with our case, but if this case is close and they’re
deliberating, he’s going to push this jury to a verdict. I’m not going to like
the verdict.

{23} The State questioned the veracity of Defendant’s facially neutral explanation, noting
that “every single one” of the other jurors accepted by Defendant “is either a victim of a
crime or has served as a juror before.” In particular, the State pointed out that Defendant had
accepted Juror 17, “who is a prior foreman of a jury.” The State argued that Defendant’s
facially neutral explanation was pretext for a discriminatory motive, noting that Defendant
had used all of his peremptory strikes thus far to eliminate “one hundred percent of [the]
white males” from the jury.

{24} In response, Defendant explained that his general trial strategy was to exclude crime
victims and male venirepersons with prior jury experience because he was afraid that they
would end up “taking control [of the jury] because [they have] all that experience. That’s
a real sensitive issue for us with some of these powerful men on this jury.” Defendant
further explained that it had been his

experience doing a number of trials, especially with jury panels that have
been there for a long period of time, they have a tendency to favor the State
after they’ve [served] two or three times. And it’s not based on race, it’s
based on prior jury service and the fact that the more they serve, the more
convictions the State gets.

{25} Defendant clarified that he was striking “powerful” men with prior jury experience
because he feared that they “would end up controlling the jury, particularly against the
women on the jury.” Additionally, Defendant noted that “one of the key witnesses in this
case is a young woman. And [he happened] to think that frankly fathers have - - don’t judge
the credibility of young females as well as mothers do. That’s defining my strategy, it has

6
nothing to do with their race.” The trial court held that Defendant had failed to provide a
neutral explanation sufficient to justify the use of a peremptory challenge against Juror 19
and, therefore, struck Defendant’s peremptory challenge and seated Juror 19 on the jury.

{26} Thereafter, the State peremptorily struck three Hispanic venirepersons: Jurors 56,
85, and 28. Defendant raised a Batson challenge, and the State sua sponte provided a race-
neutral explanation for each: “[Juror 28] was asleep during my jury selection, so that was
a concern that I had, so that’s why we struck her. And [Juror 85], she - - we know her father,
but I know her as being involved in crimes that I myself have prosecuted her on. So I struck
her.” With respect to Juror 56, the State explained that his “son and granddaughter are
defendants - - or were [d]efendants in this district, and that’s the reason we struck him.”

{27} Defendant admitted that the State had provided “a valid reason for striking [the]
juror[s],” but objected to the challenges because the information was “only privy to the
State.” Defendant argued that the State should have shared the information with the defense
so that it “could have dealt with that issue. Because that changes the strategy of picking a
jury for us whenever you have three people like that.” In response, the State pointed out that
the information was available to Defendant because it was provided in the juror
questionnaires.

{28} Defendant complained that, in total, the State had struck “five out of eight” Hispanic
venirepersons. The trial court asked the State to provide a race-neutral explanation for the
two prior peremptory challenges. The State explained that it had struck Juror 51, a Hispanic
female, because “she is familiar with Jonathan Carver in this case. Jonathan Carver is a
witness, he’s a potential witness in this case and was assisting David Griego and [Defendant]
with a place to stay while he allegedly came up with what they were going to do after the
homicides.” With respect to Juror 57, who is also a Hispanic female, the State explained that
she was struck because her uncle previously had been represented by defense counsel.

{29} The trial court found that the State had provided a race-neutral explanation for each
of its peremptory strikes and, therefore, denied Defendant’s Batson challenge. The trial
court pointed out that the explanations provided by the State were “different than striking
a person as a male, a person that would be powerful.”

{30} It is well established that neither the State nor a defendant may “during the jury
selection process, use [their] peremptory challenges to exclude otherwise unbiased and
well-qualified individuals solely on the basis of their race, gender, economic status, or any
other similar discriminatory characteristic.” House, 1999-NMSC-014, ¶ 84; see also J.E.B.
v. Alabama, 511 U.S. 127, 129 (1994) (holding that “gender, like race, is an unconstitutional
proxy for juror competence and impartiality”); Georgia v. McCollum, 505 U.S. 42, 59 (1992)
(holding that “the Constitution prohibits a criminal defendant from engaging in purposeful
discrimination . . . in the exercise of peremptory challenges”). Such invidious discrimination
violates the Equal Protection Clause of the United States Constitution and “causes harm to

7
the litigants, the community, and the individual jurors who are wrongfully excluded from
participation in the judicial process.” J.E.B., 511 U.S. at 140.

{31} The United States Supreme Court has adopted a three-part test to determine whether
peremptory challenges have been exercised in a discriminatory manner. First, the opponent
of a peremptory challenge bears the burden to establish a prima facie case indicating that the
peremptory challenge has been exercised in a discriminatory way (step one). See Purkett
v. Elem, 514 U.S. 765, 767 (1995) (per curiam). To make a prima facie showing, a party
must prove that (1) a peremptory challenge was used to remove a member of a protected
group from the jury panel, and (2) the facts and other related circumstances raise an
inference that the individual was excluded solely on the basis of his or her membership in
a protected group. See State v. Bailey, 2008-NMCA-084, ¶ 14, 144 N.M. 279, 186 P.3d 908;
State v. Martinez, 2002-NMCA-036, ¶ 11, 131 N.M. 746, 42 P.3d 851.

{32} If the opponent of the peremptory challenge successfully makes a prima facie
showing, then the burden shifts to the proponent of the challenge to come forward with a
race or gender-neutral explanation (step two). See Purkett, 514 U.S. at 767. “The second
step of this process does not demand an explanation that is persuasive, or even plausible.”
Id. at 767-68. Rather, the issue is the facial validity of the proffered explanation. “Unless
a discriminatory intent is inherent in the [party’s] explanation, the reason offered will be
deemed race [or gender]-neutral.”3 Id. at 768. “If a [race or gender]-neutral explanation is
tendered, the trial court must then decide (step three) whether the opponent of the strike has
proved purposeful racial [or gender] discrimination.” Id. at 767. “[T]he ultimate burden of
persuasion regarding racial [or gender] motivation rests with, and never shifts from, the
opponent of the strike.” Id. at 768.

{33} We review the trial court’s “factual findings regarding a Batson challenge using a
deferential standard of review, as it is the responsibility of the [trial] court to (1) ‘evaluate
the sincerity of both parties,’ (2) ‘rely on its own observations of the challenged jurors,’ and
(3) ‘draw on its experience in supervising voir dire.’” Bailey, 2008-NMCA-084, ¶ 15
(quoting Martinez, 2002-NMCA-036, ¶ 20). However, we apply a de novo standard of
review to the ultimate issue of constitutionality. Jones, 1997-NMSC-016, ¶ 11.

1. Defendant’s Peremptory Challenges

{34} The record reflects that Defendant used his peremptory challenges to strike every
single white male from the jury pool. “Courts are in near universal agreement . . . that a

3
However, this Court has stated that, if faced with a “silly or superstitious”
explanation, it “might be inclined to consider whether the New Mexico Constitution
provides more protection from discrimination than is apparently provided under the
Fourteenth Amendment after Purkett.” State v. Jones, 1997-NMSC-016, ¶ 9, 123 N.M. 73,
934 P.2d 267.

8
party’s decision to strike all the members of a particular race [or gender] establishes a prima
facie case of discrimination.” Martinez, 2002-NMCA-036, ¶ 24; see also Batson, 476 U.S.
at 97 (noting that “a ‘pattern’ of strikes against black jurors included in the particular venire
might give rise to an inference of discrimination”). Accordingly, the State established a
prima facie case of discrimination.

{35} We next address whether Defendant provided a facially neutral explanation for
exercising his eleventh peremptory challenge on Juror 19, a white male. Defendant
explained that he struck Juror 19 because Juror 19 was a crime victim with prior jury
experience. Additionally, Juror 19 had a Ph.D., which led Defendant to believe that he
might become the foreperson of the jury and Defendant did not “want him as foreperson on
this jury” because he might end up “controlling this jury.” Additionally, Defendant was
concerned that Juror 19 might “push this jury to a verdict” because of his responsibilities as
a cattle rancher. The reasons proffered by Defendant were both specific to Juror 19 and
facially neutral and, therefore, satisfied step two of the Batson test. See Jones,
1997-NMSC-016, ¶ 5 (holding that “challenging a juror for failure to make eye contact and
lack of assertiveness is a racially neutral, specific reason,” for exercising a peremptory
challenge, which satisfies step two of the Batson test); Bailey, 2008-NMCA-084, ¶ 19
(holding that challenging a potential juror for unresponsiveness during voir dire is a racially
neutral reason for exercising a peremptory challenge, which satisfies step two of the Batson
test).

{36} However, the trial court did not find Defendant’s facially neutral explanation to be
credible and, therefore, held that Defendant’s peremptory challenge failed under step three
of the Batson test. We conclude that the record amply supports the trial court’s factual
finding regarding Defendant’s discriminatory motive. First, Defendant explicitly
acknowledged that his trial strategy was gender motivated, stating that he was striking men
in lieu of women because “fathers . . . don’t judge the credibility of young females as well
as mothers do,” and because he thought that “an analytical woman would probably give
[Defendant] a fairer shake.” Second, the trial court reasonably could have found that
Defendant’s trial strategy was racially motivated. Although Defendant claimed that he was
exercising his peremptory challenges to strike all male venirepersons with prior jury
experience, regardless of race, the State pointed out that Defendant previously had accepted
non-white male venirepersons with prior jury experience. Thus, the trial court reasonably
could have found that Defendant’s facially neutral explanation was pretextual. Accordingly,
the trial court did not abuse its discretion by affirming the State’s Batson challenge and
seating Juror 19 on the jury.

2. The State’s Peremptory Challenges

{37} Defendant claims that the State failed to provide a race-neutral reason for striking
five out of eight Hispanic venirepersons from the jury. Essentially, Defendant claims that,
if his proffered reasons were not race-neutral, then a fortiori, the State’s proffered reasons
were not race-neutral either.

9
{38} The State explained that it had struck Juror 28 because she fell asleep during voir
dire, Juror 85 because she was involved in crimes prosecuted by the prosecutor, and Juror
56 because his son and granddaughter were defendants in the Fifth Judicial District.
Additionally, the State struck Juror 51 because she was familiar with a potential witness in
the case and Juror 57 because her uncle previously had been represented by defense counsel.
The trial court properly found that the State’s explanations were neither inherently
discriminatory nor pretextual. The State focused on the answers provided by each of the
venirepersons and their conduct during voir dire to provide reasonable and facially neutral
reasons for their exclusion. Nothing in the State’s answers alluded, either explicitly or
implicitly, to the juror’s gender, race, or ethnicity. Accordingly, we hold that the trial court
properly rejected Defendant’s Batson challenge.

C. Whether the Cumulative Impact of the Errors That Occurred at Trial Deprived
Defendant of a Fair Trial

{39} Lastly, Defendant claims that the cumulative impact of the trial court’s erroneous
rulings resulted in cumulative error, thereby depriving him of a fair trial. “The doctrine of
cumulative error applies when multiple errors, which by themselves do not constitute
reversible error, are so serious in the aggregate that they cumulatively deprive the defendant
of a fair trial.” State v. Roybal, 2002-NMSC-027, ¶ 33, 132 N.M. 657, 54 P.3d 61. “In New
Mexico the doctrine of cumulative error is strictly applied. It cannot be invoked when the
record as a whole demonstrates that the defendant received a fair trial.” State v. Trujillo,
2002-NMSC-005, ¶ 63, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citations
omitted).

{40} There was no error in this case and, therefore, Defendant received a fair trial.
Accordingly, Defendant’s cumulative error claim is rejected. See State v. Martin, 101 N.M.
595, 601, 686 P.2d 937, 943 (1984) (holding that the cumulative error “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)); State v. Casillas, 2009-NMCA-034, ¶ 51, 145 N.M.
783, 205 P.3d 830 (“Because there was no error, . . . there was no cumulative error.”).

III. CONCLUSION

{41} For the foregoing reasons, we affirm Defendant’s convictions.

{42} IT IS SO ORDERED.

____________________________________
PETRA JIMENEZ MAES, Justice

WE CONCUR:

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____________________________________
CHARLES W. DANIELS, Chief Justice

____________________________________
PATRICIO M. SERNA, Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Salas, Docket No. 30,967

CA CRIMINAL PROCEDURE
CA-CV Change of Venue
CA-CE Cumulative Error

JR JURIES
JR-JS Jury Selection
JR-PC Peremptory Challenges

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