State v. Rodriguez, A-1-CA-34825
| Decision Date | 05 August 2019 |
| Docket Number | No. A-1-CA-34825,A-1-CA-34825 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. ARMANDO RODRIGUEZ, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
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 Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions.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.
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
Walter Hart, Assistant Attorney General
for Appellee
Law Offices of Jennifer J. Wernersbach, P.C.
Jennifer J. Wernersbach
Albuquerque, NM
for Appellant
{1} Defendant Armando Rodriguez appeals from his conviction by a jury of possession of a firearm or destructive device by a felon, contrary to NMSA 1978, Section 30-7-16 (2001, amended 2019).1 Defendant makes the following claims on appeal: (1) the district court abused its discretion in not declaring a mistrial or excludingwitnesses who violated the sequestration order; (2) the prosecutor made improper statements during closing argument; (3) the State's failure to submit the gun for fingerprint or DNA analysis deprived Defendant of exculpatory evidence; and (4) cumulative error deprived Defendant of a fair trial. Unpersuaded, we affirm.
{2} Defendant, a convicted felon, and another man, who were both intoxicated, joined a small bonfire party in the backyard of a home. Defendant was seen handing a gun to the other man when they first arrived. Shortly thereafter, an altercation ensued and Defendant was told to leave. Defendant was again seen holding a gun as he left the party and threatened to shoot. When the police arrived, Defendant and the other man were sitting in the cab of a pick-up truck. Officers later found a gun under the passenger seat of the truck.
{3} The State charged Defendant with possession of a firearm or destructive device by a felon (the possession charge), contrary to Section 30-7-16; negligent use of a deadly weapon (intoxication), contrary to NMSA 1978, Section 30-7-4(A)(2) (1993); and battery, contrary to NMSA 1978, Section 30-3-4 (1963). The district court granted Defendant's motion to sever the possession charge.
{4} Defendant was convicted of the possession charge that is the subject of this appeal. Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of the case, we only discuss additional facts as are necessary to our disposition of the case.
{5} During voir dire, the State's four civilian witnesses (witnesses)—family members who were at the party—were brought in front of the prospective jurors for identification. Before the witnesses left the courtroom, the district court invoked Rule 11-615 NMRA and instructed the witnesses, in the presence of the counsel for both parties, that they were not to talk with each other about the case, the testimony they were going to give, or the testimony they had given once they had testified. The district court further instructed these witnesses that they could speak to the attorneys involved in the case, but if they did so, to "please make sure that is done outside of the hearing of the other witnesses." The parties continued voir dire, and the court empaneled a jury. After the parties presented their opening statements, the district court recessed for lunch.
{6} Upon returning from lunch, defense counsel told the district court that he had seen the prosecutor and the State's witnesses in a witness room together during the lunch break. Defense counsel reported that it appeared that they were discussing previously undisclosed photographs of the gun Defendant was accused of possessing.
Defense counsel reported watching several minutes of conversation. Defense counsel then moved the court to exclude the witnesses.
{7} The prosecutor stated in response, "Clearly, I have made a mistake." However, the prosecutor indicated that he was not aware that he could not ask the witnesses questions in the presence of one another. The prosecutor reported that the witnesses were not conferring with one another, but could hear each other's answers to the questions asked of each. The prosecutor admitted that the questions were substantive.
{8} The district court noted that it "very clearly admonished the witnesses and indicated to the attorneys that it was their duty to ensure that there was compliance with the rule." The court concluded that the prosecutor violated its admonishment and invocation of the sequestration rule. To remedy the violation, the district court decided that Defendant would be allowed to cross examine each of the witnesses as to whether they were in the room together discussing the case and what specifically they were discussing.
{9} Defendant moved for a mistrial. The district court denied both that motion and one to have the prosecutor made a witness indicating that there was no way to undo what had already been done—the witnesses had already been in a position to hear each other say whatever they had said in the witness room. Therefore, the district court reasoned that the only effective remedy would be to bring out the information about the meeting in front of the jury, which then could use that information in assessing the witnesses' credibility.
{10} On appeal, Defendant argues that the prosecutor's failure to comply with the sequestration order violated Rule 11-615 and constituted prosecutorial misconduct. Defendant contends that the only sufficient remedies would have been exclusion of the State's witnesses or declaration of a mistrial. Defendant argues that reversal of his conviction is required under either theory.
{11} Rule 11-615 allows a district court to, on its own, "order witnesses excluded so that they cannot hear other witnesses' testimony[.]" "The purpose of [Rule] 11-615 is to prevent witnesses from tailoring their testimony to the testimony of other witnesses." State v. Ruiz, 1995-NMCA-007, ¶ 22, 119 N.M. 515, 892 P.2d 962. "When a violation of [Rule 11-615] occurs, the choice of remedy is within the sound discretion of the [district] court." State v. Reynolds, 1990-NMCA-122, ¶ 28, 111 N.M. 263, 804 P.2d 1082. "[A]lthough a mistrial is a possible remedy for a violation of Rule 11-615, other potential remedies include striking testimony, citing for contempt, instructing the jury, permitting examination of the witnesses by counsel concerning how their testimony may have been tainted, and permitting argument by counsel." State v. Salas, 2017-NMCA-057, ¶ 20, 400 P.3d 251 (internal quotation marks and citation omitted). "Generally, it is unnecessary to prohibit the tainted witness from testifying." Reynolds, 1990-NMCA-122, ¶ 28. "Permitting a witness to testify who ha[s] violated the rule is within the discretion of the [district] court." State v. Simonson, 1983-NMSC-075, ¶ 25, 100 N.M. 297, 669 P.2d 1092. "The district court has broad discretion under Rule 11-615 and we will not disturbthe decision of the [district] court absent a clear abuse of this discretion and prejudice to the complaining party." State v. Shirley, 2007-NMCA-137, ¶ 33, 142 N.M. 765, 170 P.3d 1003 (alteration, internal quotation marks, and citation omitted). "A district court abuses its discretion if its ruling is clearly against the logic and effect of the facts and circumstances before the court." Salas, 2017-NMCA-057, ¶ 11 (internal quotation marks and citation omitted).
{12} From the discussion that the district court had with the prosecutor out of the presence of the jury, the district court had to determine "[w]hether the violation was deliberate or inadvertent, or whether such a violation was condoned by counsel[.]" State v. Barboa, 1973-NMCA-025, ¶ 14, 84 N.M. 675, 506 P.2d 1222. With that knowledge, the district court granted Defendant a remedy that is one of a number of acceptable remedies for violations of the rule. See Salas, 2017-NMCA-057, ¶ 20 ().
{13} Defendant has failed to identify any prejudice that he suffered by the district court allowing the witnesses to testify beyond the "inherent prejudice . . . that witnesses would testify based not on their independent memories, but on those memories as enhanced by others." See Ruiz, 1995-NMCA-007, ¶ 22. To remedy that prejudice, the district court allowed Defendant to cross-examine the witnesses regarding the meeting and what occurred therein.
{14} Defendant cross-examined only two of the witnesses who met with prosecutor during lunch.2 They both testified as to what occurred during the lunch meeting. Both attended the lunch meeting with the two other witnesses and were able to hear the substance of each witness's expected testimony. The prosecutor asked the witnesses to describe the gun before they were shown a picture of a gun that matched the description. Nobody invented details or changed their "stories" based on what was discussed during the meeting. The jury was free to accept or reject the explanations and to determine the credibility of the witnesses involved.
{15} We cannot say that the district court's choice of remedy was "clearly against the logic and effect of the facts and circumstances before the court." Salas, 2017-NMCA-057, ¶ 11 (internal quotation marks and citation omitted). Nor can we say that Defendant suffered prejudice because of the district court's ruling. Furthermore, in light of the evidence of Defendant's guilt, we cannot conclude that the "prosecutor's misconduct had such a pervasive and prejudicial effect on the jury's verdict that [D]efendant was deprived of a fair trial" as Defendant suggests.
{16} Our...
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