                                                             I attest to the accuracy and
                                                              integrity of this document
                                                                New Mexico Compilation
                                                              Commission, Santa Fe, NM
                                                             '00'05- 16:09:33 2016.01.14
Certiorari Denied, December 7, 2015, No. 35,584

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-006

Filing Date: October 5, 2015

Docket No. 32,838

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

GREGORY M. HOBBS,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
Freddie J. Romero, District Judge

Hector H. Balderas, Attorney General
Paula E. Ganz, Assistant Attorney General
Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                         OPINION

VANZI, Judge.

{1}     Defendant Gregory Marvin Hobbs appeals his conviction for voluntary manslaughter
with a firearm enhancement, contrary to NMSA 1978, § 30-2-3(A) (1994), and NMSA 1978,
§ 31-18-16(A) (1993). Defendant raises three issues, which we have reorganized and address
as follows: (1) whether Defendant’s right to a public trial was violated when the district
court partially closed the courtroom during the testimony of one of his witnesses, (2) whether

                                              1
Defendant received ineffective assistance of counsel, and (3) whether the district court erred
in denying Defendant’s request for a new trial. We affirm.

BACKGROUND

{2}     It is undisputed that Defendant shot and killed Ruben Archuleta, Jr. (Ruben Jr.) and
Ruben Archuleta, Sr., also known as Hammer (Victim), during an altercation that occurred
on June 15, 2012. The State did not prosecute Defendant for Ruben Jr.’s death because it
determined that the killing of Ruben Jr. was legally justified. Defendant was, however,
charged with and convicted for voluntary manslaughter for causing Victim’s death.
Defendant appeals his conviction and raises three independent issues. The facts relevant to
each issue will be discussed below.

DISCUSSION

Courtroom Closure

{3}      Britini S., a minor, witnessed the struggle between Defendant and Victim. She
testified at Defendant’s preliminary hearing and was later subpoenaed by Defendant to
testify at his trial. Defendant considered Britini’s testimony to be crucial to his theory of self-
defense.

{4}    Britini failed to appear on the first day of trial, so the district court issued a bench
warrant for her arrest. After her father called the judge’s chambers to express concern for his
daughter’s safety, the judge held a conference regarding the conditions under which Britini
would testify. The judge and counsel for the State and Defendant interviewed Britini in the
presence of Defendant and Britini’s mother.

{5}     Britini, who was six and one-half months pregnant at the time of trial, explained that
she was not comfortable testifying in front of an audience because she feared retaliation from
Victim’s family. She stated that approximately two weeks after she testified at the
preliminary hearing she was physically assaulted by a girl whom she did not know, but who
was with two of Victim’s sons. Britini informed the court that she was afraid that she would
not be able to defend herself if she were attacked again due to her pregnancy, and she felt
like she had to watch her back. Likewise, Britini’s mother expressed concern for Britini’s
safety and the safety of her unborn grandchild.

{6}     Defense counsel proposed that Britini be deemed unavailable and suggested that
Britini’s testimony from the preliminary hearing be admitted in lieu of testimony at the trial.
The State agreed that Britini’s fear of retaliation was reasonable because her attacker had
been in the company of Victim’s sons. However, the State opposed using Britini’s testimony
from the preliminary hearing and argued that the situation did not rise to the level of
deeming Britini unavailable. The judge also expressed his concern for Britini’s safety but
stated that he did not think that he had the authority to exclude the public from the

                                                2
proceedings. In response, defense counsel asked the judge, “[n]ot even upon stipulation of
the parties[,] your honor?” Counsel then stated that “the defense would be happy to stipulate
for the purpose of her testimony that the court could be cleared . . . of everyone but the
bailiffs [and] parties[.]” The State also agreed to the stipulation.

{7}     The judge and counsel for the State and Defendant discussed Defendant’s rights,
Victim’s rights, the public’s rights, and how these rights could be affected if the district court
agreed to partially close the courtroom during Britini’s testimony. After careful
consideration, and based upon the parties’ stipulation to a partial closure of the courtroom,
the district court decided to exclude members of Victim’s and Defendant’s families from the
courtroom while Britini testified. The judge explained to Britini that he would exclude
Victim’s and Defendant’s families while she testified but that he could not seal the
courtroom. The judge further said that if someone from the newspaper was in the audience,
the attorneys could ask that person “[t]o give some consideration so that [her] name [was not
published] in the newspaper.” The following day, Britini testified on behalf of Defendant.
Her testimony and the partial courtroom closure lasted less than twenty minutes.

{8}     On appeal, Defendant argues that the partial courtroom closure during Britini’s
testimony violated his Sixth Amendment right to a public trial, despite the fact that his
defense counsel stipulated to the closure. He claims that the unconstitutional closure
constitutes structural error requiring a new trial. He further argues that structural errors are
subject to a relaxed preservation requirement and that they are not subject to a harmless error
analysis. The State, on the other hand, asserts that Defendant did not preserve this issue for
appellate review, that Defendant stipulated to the closure, and that Defendant’s stipulation
has the effect of a waiver of this issue on appeal.

{9}     “In a criminal trial, the accused shall enjoy the right to a speedy and public trial.”
State v. Turrietta, 2013-NMSC-036, ¶ 1, 308 P.3d 964 (citing U.S. Const. amend. VI; N.M.
Const. art. II, § 14). The right to a public trial, however, “is not absolute and may give way
in certain cases to other rights or interests.” Id. Whether Defendant’s constitutional rights
were violated is a question of law and, therefore, our review is de novo. Id. ¶ 14.

{10} As an initial matter, Defendant appears to concede that he did not preserve this issue
for appellate review, and we agree. See Rule 12-216(A) NMRA (“To preserve a question for
review it must appear that a ruling or decision by the district court was fairly invoked[.]”);
see also State v. Vandenberg, 2003-NMSC-030, ¶ 52, 134 N.M. 566, 81 P.3d 19 (“In
analyzing preservation, we look to the arguments made by Defendant below.”); State v.
Jacobs, 2000-NMSC-026, ¶ 12, 129 N.M. 448, 10 P.3d 127 (“In order to preserve an issue
for appeal, it is essential that a party must make a timely objection that specifically apprises
the [district] court of the claimed error and invokes an intelligent ruling thereon.”). Despite
Defendant’s failure to preserve his Sixth Amendment claim, however, we address his
assertion that the alleged unconstitutional closure violates his right to a public trial and
constitutes a structural error requiring a new trial. See Waller v. Georgia, 467 U.S. 39, 49
(1984).

                                                3
{11} “A structural error is a defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself.” State v. Nguyen,
2008-NMCA-073, ¶ 9, 144 N.M. 197, 185 P.3d 368 (internal quotation marks and citation
omitted). “If a hearing is closed in violation of the Constitution, the denial of the right to a
public trial is a structural error; thus, it is not subject to a harmless error analysis.” State v.
Hood, 2014-NMCA-034, ¶ 6, 320 P.3d 522. Therefore, if Defendant’s right to a public trial
was violated, such error would be a structural error.

{12} When determining the constitutionality of a courtroom closure, our Supreme Court
in Turrietta adopted the “overriding interest” standard, discussed by the United States
Supreme Court in Waller, 467 U.S. 39, and Press-Enterprise Co. v. Superior Court of
California, 464 U.S. 501 (1984). See Turrietta, 2013-NMSC-036, ¶¶ 17, 19. In Waller, the
United States Supreme Court held that a closure “over the objections of the accused” must
meet the following “overriding interest” four-pronged test:

        [1] the party seeking to close the hearing must advance an overriding interest
        that is likely to be prejudiced, [2] the closure must be no broader than
        necessary to protect that interest, [3] the [district] court must consider
        reasonable alternatives to closing the proceeding, and [4] it must make
        findings adequate to support the closure.

Waller, 467 U.S. at 47-48.

{13} Defendant asserts that none of these prongs were satisfied. Specifically, he argues
that: (1) neither party demonstrated an overriding interest for the closure; (2) the closure was
overly broad; (3) the district court failed to adequately assess possible alternatives to closure;
and (4) the district court failed to make adequate findings to support closure. Conversely, the
State contends that the four prongs were met in this case. It contends that: (1) Britini’s safety
and the safety of her unborn child were the overriding interests for the closure; (2) the partial
closure was not overly broad in scope or duration; (3) the district court considered
alternatives and determined that the partial closure was the best option; and (4) the district
court interviewed Britini and her mother in the presence of counsel for Defendant and the
State and made sufficient factual findings to support the closure. For the reasons that follow,
we conclude that Defendant waived his right to a public trial when his attorney expressly
consented to the partial courtroom closure during Britini’s testimony. Therefore, his
structural error argument fails and consideration of the “overriding interest” standard is not
required. We explain.

{14} “Fundamental rights, including constitutional rights, can be waived.” State v.
Singleton, 2001-NMCA-054, ¶ 11, 130 N.M. 583, 28 P.3d 1124. While “[s]ome rights are
considered so personal to the defendant they necessitate inquiry into the individual
defendant’s decision-making process[,] . . . [o]ther rights generally pertaining to the conduct
of trial may be waived through counsel and without an inquiry on the record into the validity
of the waiver.” Id. ¶ 12. “Defense attorneys make a wide variety of tactical decisions during

                                                4
the course of a criminal trial, and many of these decisions implicate the constitutional rights
of a defendant.” Nguyen, 2008-NMCA-073, ¶ 24. “A personal waiver by the defendant is not
required for all of these decisions.” Id. Furthermore, the United States Supreme Court has
“uniformly recognized the public-trial guarantee as one created for the benefit of the
defendant.” Presley v. Georgia, 558 U.S. 209, 213 (2010) (internal quotation marks and
citation omitted). The right to “a public trial is for the benefit of the accused; that the public
may see he is fairly dealt with and not unjustly condemned,” and “encourages witnesses to
come forward [while] discourag[ing] perjury.” Waller, 467 U.S. at 46 (internal quotation
marks and citations omitted); see also Peretz v. United States, 501 U.S. 923, 936 (1991)
(recognizing that a defendant may waive most basic rights, including his or her right to a
public trial); Levine v. United States, 362 U.S. 610, 611, 619-20 (1960) (holding that the
defendant’s due process and public trial rights were not violated after the public had been
excluded from the courtroom, in what began as a grand jury proceeding and continued as a
hearing for the defendant’s criminal contempt; the Supreme Court noted that the defendant
made no request at any time to open the courtroom and simply “raise[d] an abstract claim
only as an afterthought on appeal”).

{15} In this case, Defendant believed that Britini’s testimony was critical and would
bolster his theory of self-defense. But Britini did not want to testify in front of an audience
because she feared retaliation from Victim’s family. After the district court denied defense
counsel’s request to use her preliminary hearing testimony in lieu of having her testify at
trial, defense counsel proposed closing the courtroom for Britini’s testimony. Counsel further
stated that Defendant would stipulate to excluding everyone from the courtroom except the
bailiffs and parties. Defendant was present when his attorney proposed this stipulation, and
there is no indication in the record that he objected to it. Based on these facts, it is clear that
Defendant waived his right to a public trial when his counsel expressly stipulated to—and
even encouraged—the partial courtroom closure. See Knighten vs. Commandant, 142 Fed.
Appx. 348, 351 (10th Cir. 2005) (unpublished) (holding that the defendant’s counsel’s
express waiver of objection to the trial court’s closure of courtroom during the victim’s
testimony during court-martial on criminal charges precluded review of claim on military
prisoner’s application for writ of habeas corpus); id. (“The right to a public trial . . . may be
waived, so long as the waiver is knowing and intelligent. . . . Counsel can waive the right on
behalf of a client, at least in the absence of an objection by the client.” (citations omitted));
see also Addai v. Schmalenberger, 776 F.3d 528, 533 (8th Cir. 2015) (“A defendant may
certainly consent to the closure of the courtroom if he believes it to be in his favor, and if he
chooses to do so, he can hardly claim on appeal that the closure violated his Sixth
Amendment right.”); Crawford v. Minnesota, 498 F.3d 851, 855 (8th Cir. 2007) (stating that,
in Minnesota, a defendant’s passive failure to object to closing the courtroom does not waive
compliance with the public trial mandates set forth by statute and Waller, “[b]ut if the
defendant acting through his attorney agrees to closure (and assuming no member of the
public lodges a First Amendment objection), the issue is procedurally defaulted on appeal”).
Given that defense counsel did not object to the partial courtroom closure during Britini’s
testimony and affirmatively encouraged it, Defendant is in no position to now claim that his
Sixth Amendment right to a public trial was violated.

                                                5
{16} Because we conclude that Defendant expressly consented to the closure to make his
witness feel more comfortable during her testimony, we need not determine whether the
Waller “overriding interest” four-pronged standard was met. See Waller, 467 U.S. at 47
(holding that, under the Sixth Amendment, a courtroom closure must meet the four-prong
test when the accused has objected to the courtroom closure); see also Addai, 776 F.3d at
534 (explaining that, in a case where the defendant expressly consents to a courtroom
closure, the court is not required to balance the interests described in Waller). Accordingly,
we affirm on this issue.

Ineffective Assistance of Counsel

{17} Defendant claims that he received ineffective assistance of counsel because his
attorney failed to retain or call an expert on bullet trajectories. Defendant contends that such
expert testimony could have corroborated his self-defense theory and effectively rebutted
the State’s evidence. Defendant raises this issue as an alternative to his newly discovered
evidence argument, which we discuss later in this Opinion.

{18} It is well established that criminal defendants have a constitutional right to effective
assistance of counsel. See Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M. 179, 21
P.3d 1032 (“The Sixth Amendment to the United States Constitution, applicable to the states
through the Fourteenth Amendment, guarantees not only the right to counsel but the right
to the effective assistance of counsel.” (internal quotation marks and citation omitted)).” We
review the legal issues involved with claims of ineffective assistance of counsel de novo. .
. [and] . . . defer to the findings of fact of the [district] court if substantial evidence supports
the court’s findings.” State v. Crocco, 2014-NMSC-016, ¶ 11, 327 P.3d 1068 (citations
omitted).

{19} Defendant bears the burden of showing that his counsel’s performance was deficient
and that he suffered prejudice as a result of the deficiency. See State v. Roybal, 2002-NMSC-
027, ¶ 19, 132 N.M. 657, 54 P.3d 61. “When an ineffective assistance claim is first raised
on direct appeal, we evaluate the facts that are part of the record.” Id. “If facts necessary to
a full determination are not part of the record, an ineffective assistance claim is more
properly brought through a habeas corpus petition[.]” Id.; see also State v. Herrera, 2001-
NMCA-073, ¶ 37, 131 N.M. 22, 33 P.3d 22 (“When the record on appeal does not establish
a prima facie case of ineffective assistance of counsel, this Court has expressed its preference
for resolution of the issue in habeas corpus proceedings over remand for an evidentiary
hearing.”).

{20} Here, the jury convicted Defendant of voluntary manslaughter on February 1, 2013.
On February 14, 2013, defense counsel filed a motion for a new trial and asserted that, while
preparing for a different trial on February 6, 2013, she discovered that Nelson Welch, an
expert witness whom she had retained in a different case, is qualified to give expert opinions
regarding situations where two people are struggling over a weapon, as well as weapon
discharges, trajectory, and angles of bullets. Had she known about his expertise in this area

                                                 6
before Defendant’s trial, defense counsel says she would have hired Welch to testify on
behalf of Defendant because he would have provided useful information central to
Defendant’s theory of self-defense. For the reasons that follow, we are not persuaded that
defense counsel’s failure to hire Welch rises to the level of ineffective assistance of counsel.

{21} Even if Defendant could show that counsel’s performance was deficient because
there was no tactical or strategic basis for failing to retain or consult with Welch or another
trajectory expert, see State v. Aragon, 2009-NMCA-102, ¶¶ 9-15, 147 N.M. 26, 216 P.3d
276, Defendant “must demonstrate that his counsel’s errors prejudiced his defense such that
there was a reasonable probability that the outcome of the trial would have been different.”
Id. ¶ 16 (internal quotation marks and citation omitted). In the present case, Defendant
claims that he suffered prejudice as a result of counsel’s failure to call an expert witness to
corroborate his theory of self-defense; however, there is no evidence in the record that the
outcome would have been different if counsel had retained or called a trajectory expert to
testify on his behalf. To the contrary, Dr. Sam Andrews from the Office of the Medical
Investigator (OMI) testified regarding the path of the bullets through Victim’s body,
including that the fatal bullet was shot very close to the body and from a position above
Victim’s chest. Further, there was evidence presented regarding the struggle between
Defendant and Victim for the firearm, which would have supported Dr. Andrews’ testimony.
Other than being possibly cumulative or contradictory, Defendant does not show a
probability that an expert’s testimony regarding a struggle for a firearm and the trajectory
of bullets would change the outcome if a new trial was granted.

{22} Defendant’s claim of prejudice is based on mere speculation. Without specifying
what an expert would have testified to, Defendant asserts that the expert “could have
provided useful information . . . central to the theory of defense[;]” “could have reviewed
Dr. Andrews’ analysis to confirm or contest his findings[;]” “could have corroborated Dr.
Andrews’ theories if accurate, and if contradictory, would have provided necessary
assistance for effective cross-examination of those theories” and “could have offered
scientific evidence” that would have bolstered his self-defense theory. This conjecture is not
enough to establish prejudice. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M.
562, 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”).

{23} Therefore, we conclude that Defendant has not established a prima facie case of
ineffective assistance of counsel. See State v. Grogan, 2007-NMSC-039, ¶ 11, 142 N.M.
107, 163 P.3d 494 (“The defendant has the burden to show both incompetence and
prejudice.”). Absent a prima facie case of ineffective assistance of counsel, Defendant’s
remedy is through habeas proceedings. State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M.
476, 927 P.2d 31 (stating that “[t]his Court has expressed its preference for habeas corpus
proceedings over remand when the record on appeal does not establish a prima facie case of
ineffective assistance of counsel”).

Denial of Request for New Trial


                                               7
{24} Defendant asserts that the district court abused its discretion in denying his request
for a new trial on three grounds: (1) juror bias, (2) newly discovered evidence, and (3) the
district court’s failure to instruct the jury regarding the timing of a break during Defendant’s
closing argument. “The general rule is that a motion for a new trial is not favored and this
Court will only reverse a denial of a motion for new trial upon a showing of a clear abuse
of discretion by the trial court.” State v. Curry, 2002-NMCA-092, ¶ 18, 132 N.M. 602, 52
P.3d 974.

Juror Bias

{25} Defendant asserts that his right to a fair trial was compromised because a juror failed
to disclose during voir dire that he knew one of the State’s witnesses. See State v. Johnson,
2010-NMSC-016, ¶ 35, 148 N.M. 50, 229 P.3d 523 (“The Sixth Amendment of the United
States Constitution guarantees defendants the right to trial by a fair and impartial jury and
is implicated during voir dire.”); State v. McFall, 1960-NMSC-084, ¶ 6, 67 N.M. 260, 354
P.2d 547 (emphasizing that the New Mexico Constitution guarantees a trial by an “impartial”
jury). Specifically, he contends that the juror concealed that he knew witness Trisha Hart
during voir dire.

{26} Tricia Hart investigated the crime scene on behalf of the OMI and was called to
testify by the State. Prior to testifying, and outside the presence of the jury, Hart disclosed
that she knew the juror from church and that the juror probably knew her “as Jerry’s wife.”
Defense counsel stated that she had no objection to the juror, as long as the relationship was
not a close and personal one. Although Defendant did not object to the juror at the time, he
later argued in his post-trial motion and now on appeal that the district court erred by not
asking the juror whether his acquaintance with Hart would affect his impartiality.
Additionally, Defendant contends that he would have used a peremptory challenge to excuse
the juror if the juror had disclosed his connection to Hart during voir dire. In its response to
Defendant’s motion for a new trial on this issue, the State attached an affidavit from the
juror. The affidavit stated that the juror only realized that he and Hart attended the same
church after the conclusion of the trial. It also stated that his verdict and consideration of the
evidence was not influenced by any prior knowledge of Hart.

{27} While we recognize that “a lone biased juror undermines the impartiality of an entire
jury,” State v. Gardner, 2003-NMCA-107, ¶ 10, 134 N.M. 294, 76 P.3d 47, “Defendant
bears the burden to establish that the jury was not fair and impartial, and must demonstrate
bias or prejudice on the part of the remaining jurors.” State v. Gallegos, 2009-NMSC-017,
¶ 22, 146 N.M. 88, 206 P.3d 993. Here, Defendant did not object to Hart’s disclosure about
the juror and made no attempt to inquire further into any relationship between Hart and the
juror. Further, he makes no real argument that the juror was biased nor does he challenge the
juror’s sworn statement that the juror did not recognize Hart at the time of trial and only
realized that they attended the same church when Hart introduced herself on the Sunday after
the trial had concluded. Defendant has not come forth with any evidence that the juror
recognized or knew Hart during the trial or that they had any relationship requiring the

                                                8
district court to hold an evidentiary hearing. Accordingly, we hold that Defendant has not
sustained his burden of showing that this juror was biased or impartial. See State v. Mann,
2002-NMSC-001, ¶ 20, 131 N.M. 459, 39 P.3d 124 (“The essence of cases involving juror
. . . bias is whether the circumstance unfairly affected the jury’s deliberative process and
resulted in an unfair jury.”). The district court did not abuse its discretion in denying
Defendant a new trial on this basis.

Newly Discovered Evidence

{28} This is an alternative argument to Defendant’s ineffective assistance of counsel
claim. It is unclear when counsel learned about Welch’s trajectory expertise. In the State’s
response to the motion for a new trial, the State argued that defense counsel knew about
Welch and his expertise before Defendant’s trial because Welch had performed an
examination of a firearm and viewed evidence in the other case months before Defendant’s
trial. During the hearing on Defendant’s motion for a new trial, defense counsel advised the
district court only that she hired Welch as a firearms expert in the other case, Welch has been
an expert witness since 1974, and that she did not learn about his trajectory expertise until
after Defendant’s trial. The district court did not make a finding as to when defense counsel
learned about Welch’s trajectory expertise. Instead, the district court determined that the
proffered expert testimony did not constitute newly discovered evidence or grounds for a
new trial. The court based its decision on the fact that defense counsel had already argued
trajectory issues in closing argument based on testimony presented to the jury.

{29} In his ineffective assistance of counsel claim, Defendant acknowledges that trajectory
experts existed before his trial. And he states specifically that his attorney “discovered the
usefulness of a bullet trajectory expert in a separate case prior to [Defendant’s] trial.” Now,
however, Defendant claims that this is newly discovered evidence and that his attorney did
not learn about trajectory experts until after Defendant’s trial and this discovery constitutes
newly discovered evidence that warrants a new trial. Defendant cannot have it both ways.

{30} A motion for a new trial based on an allegation of newly discovered evidence must
meet six requirements to be granted: (1) “it will probably change the result if a new trial is
granted;” (2) “it must have been discovered since the trial;” (3) “it could not have been
discovered before the trial by the exercise of due diligence;” (4) “it must be material;” (5)
“it must not be merely cumulative; and” (6) “it must not be merely impeaching or
contradictory.” State v. Garcia, 2005-NMSC-038, ¶ 8, 138 N.M. 659, 125 P.3d 638 (internal
quotation marks and citation omitted).

{31} The allegedly newly discovered evidence was Welch, an expert in bullet trajectory
who had previously been retained by defense counsel in a separate case. Defendant claims
that Welch could have testified about the trajectory in this case and, in particular, the
position of Victim’s body when the bullets entered his body. According to Defendant, the
angle of the lethal shot could have assisted his self-defense argument. We conclude that
counsel’s realization that a trajectory expert may have bolstered Defendant’s theory of self-

                                              9
defense does not constitute newly discovered evidence. See Curry, 2002-NMCA-092, ¶¶ 17-
19 (holding that the testimony of a witness known before trial, but who was not available at
trial, did not constitute newly discovered evidence). Even if defense counsel did not learn
about Welch’s trajectory expertise until after Defendant’s trial, the existence of trajectory
experts could have been discovered before trial by the exercise of due diligence. Moreover,
because it is unclear what Welch, or another trajectory witness, would have testified, we
cannot assess whether the evidence would probably change the result if a new trial is granted
or whether the evidence would be material, cumulative, impeaching, or contradictory. See
Garcia, 2005-NMSC-038, ¶ 8.

{32} “Given the wide latitude we provide to district courts in resolving motions for a new
trial based on newly discovered evidence, we cannot conclude that an abuse of discretion
occurred on these facts.” State v. Gallegos, 2011-NMSC-027, ¶ 77, 149 N.M. 704, 254 P.3d
655; see also State v. Sosa, 1997-NMSC-032, ¶ 16, 123 N.M. 564, 943 P.2d 1017
(explaining that motions for a new trial based on newly discovered evidence are “not
encouraged” and the “denial of such a motion will only be reversed if the district court has
acted arbitrarily, capriciously, or beyond reason”); Curry, 2002-NMCA-092, ¶ 21 (affirming
denial of motion for new trial thus rejecting the defendant’s attempt to “take another bite at
the apple”).

Jury Break

{33} During Defendant’s closing argument, the State asked for a bench conference and
among other issues, asked the district court to admonish the spectators for their disruptive
actions. Following the bench conference, the district court sent the jury out for a break in
order to address the trial spectators. The court did not inform the jury of the reason for the
break, and Defendant did not object or request a curative instruction to address the timing
of the break.

{34} After the jury convicted him of voluntary manslaughter, Defendant argued that he
was entitled to a new trial because the timing of the break may have left the jury with the
impression that defense counsel did or said something inappropriate to cause the break and
that the appearance of impropriety prejudiced him. The district court denied Defendant’s
request for a new trial, and Defendant raises the same argument on appeal.

{35} Defendant acknowledges that he did not preserve this issue for appellate review, and
he raises this cursory argument as fundamental error pursuant to Rule 12-216(B)(2) NMRA.
Parties alleging fundamental error must demonstrate the existence of circumstances that
“shock the conscience” or implicate a fundamental unfairness within the system that would
undermine judicial integrity if left unchecked. State v. Cunningham, 2000-NMSC-009, ¶ 21,
128 N.M. 711, 998 P.2d 176; see also State v. Barber, 2004-NMSC-019, ¶ 17, 135 N.M.
621, 92 P.3d 633 (providing that fundamental error only occurs in “cases with defendants
who are indisputably innocent, and cases in which a mistake in the process makes a
conviction fundamentally unfair notwithstanding the apparent guilt of the accused”).

                                             10
{36} Defendant provides no argument concerning this hypothetically perceived prejudice
to him based on the timing of the break and the district court’s failure to give a curative
instruction. Indeed he contends only that the timing “might have led the jury to believe that
defense counsel’s conduct caused the break.” (Emphasis added.) This equivocal statement
simply does not rise to the level of fundamental error and does not demonstrate the existence
of circumstances that “shock the conscience.” Therefore, we hold that the district court did
not abuse its discretion in denying Defendant a new trial on this basis.

CONCLUSION

{37}   For the foregoing reasons, we affirm.

{38}   IT IS SO ORDERED.

                                               ____________________________________
                                               LINDA M. VANZI, Judge

WE CONCUR:

____________________________________
MICHAEL E. VIGIL, Chief Judge

____________________________________
MICHAEL D. BUSTAMANTE, Judge




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