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 1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Filing Date: March 21, 2019

 3 STATE OF NEW MEXICO,

 4          Plaintiff-Appellee,

 5 v.                                                             NO. S-1-SC-36110

 6 TRINIDAD GALLEGOS,

 7          Defendant-Appellant.

 8 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 9 Alisa Hadfield, District Judge


10 Bennett J. Baur, Chief Public Defender
11 B. Douglas Wood, III, Assistant Appellate Defender
12 Santa Fe, NM

13 for Appellant


14 Hector H. Balderas, Attorney General
15 Eran Shemuel Sharon, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18                                             DECISION
 1 VIGIL, Justice.

 2 I.      INTRODUCTION

 3   {1}   In this direct appeal, Defendant Trinidad Gallegos appeals his convictions of

 4 first-degree murder and other crimes on the basis of independent and cumulative error

 5 at trial. In addition, Defendant asks us to conclude that he has made a prima facie

 6 showing he received ineffective assistance of counsel and to remand the matter for an

 7 evidentiary hearing. For the following reasons, we reject Defendant’s claims of

 8 prejudicial error and conclude that he has not made a prima facie case of ineffective

 9 assistance of counsel. Accordingly, we affirm Defendant’s convictions.

10 II.     BACKGROUND

11   {2}   Defendant was sentenced for his convictions of first-degree murder,

12 kidnapping, armed robbery, tampering with evidence, and conspiracy to commit

13 kidnapping in the 2014 death of Sergio Bickham (Victim). The evidence presented at

14 trial was that Defendant kidnapped Victim at a gas station in Albuquerque, and then

15 drove Victim west of the city to a tunnel that runs under Interstate 40. There,

16 Defendant shot Victim four times in the head, killing him.

17   {3}   Charles Cordova testified against Defendant at trial. Before testifying, Cordova

18 entered into an immunity use agreement with the State specifying that Cordova’s


                                               2
 1 testimony could not be used against him at his own trial. Cordova testified that on the

 2 day of the killing, he helped Defendant tow Victim’s vehicle, a black Mustang, in

 3 exchange for the forgiveness of a debt Cordova owed Defendant. He stated that

 4 Warren Esquirrel, an acquaintance of Defendant, followed Cordova and Defendant to

 5 the gas station. Cordova and Defendant then towed Victim’s vehicle to a location

 6 where Esquirrel was supposed to pick it up.

 7   {4}   Cordova continued that after they towed the vehicle, he drove Defendant and

 8 Victim towards Route 66 Casino via Interstate 40. He testified that they did not make

 9 it to the casino. Instead, they exited the interstate at Atrisco Vista Boulevard and

10 stopped at the underpass there. Defendant and Victim got out and walked through the

11 underpass tunnel to the other side while Cordova stayed in his vehicle. Cordova stated

12 that he heard at least one gunshot, and then Defendant returned with a gun in hand.

13 When Cordova asked where Victim had gone, Defendant responded that “[h]e had

14 some business to take care of.” The pair then returned to Albuquerque without Victim.

15   {5}   Though Cordova’s testimony formed the backbone of the State’s case against

16 Defendant, additional evidence supported Cordova’s retelling of the day in question.

17 First, the State introduced expert testimony regarding cell phone location analysis

18 from Agent Russell Romero. That testimony placed Defendant and Cordova in the


                                              3
 1 general locations of the kidnapping and murder.

 2   {6}   Next, Esquirrel testified that when he met Defendant and Cordova at the gas

 3 station that afternoon, Defendant handed him a bag full of guns and ammunition,

 4 pointed a gun at him, and told him to leave “before the cops got there.” Esquirrel

 5 further testified that Defendant asked Esquirrel if he knew someone who could

 6 remotely erase surveillance video. When Esquirrel replied that he was not sure if that

 7 was possible, Defendant told him he would “blow up the whole gas station.”

 8   {7}   In addition, Victim’s half-brother, Joseph Michael Gomez, testified that two

 9 guys—one with a semiautomatic weapon—approached him and Victim as they were

10 fixing Victim’s Mustang at the gas station. Gomez stated that Defendant told him to

11 put his hands on the trunk of the Mustang and then threatened to shoot him if he did

12 not walk away. Gomez said he watched Cordova and Defendant push his brother to

13 the passenger side of the car and then heard an electrical noise that he thought was a

14 taser being used on Victim. After walking away from the car, Gomez saw Cordova

15 and Defendant hook up the tow and leave with Victim still in the Mustang. Gomez

16 described the scene as the State played corresponding surveillance camera footage

17 from the gas station.

18   {8}   The video footage shows Defendant and Cordova meeting Victim where he is


                                             4
 1 parked at the gas pump. Once Defendant and Cordova arrive at the gas station, Victim

 2 remains inside the vehicle. Gomez is pushed towards the trunk of the car where he

 3 stays with his hands on the car until he walks away. Meanwhile, Defendant and

 4 Cordova continually enter and exit the driver’s side of Victim’s Mustang. Within

 5 minutes, the pair attach a tow rope from the Mustang to Cordova’s SUV.

 6   {9}    In the video, Esquirrel arrives to the gas station roughly two minutes after

 7 Defendant and Cordova. While Cordova is preparing the tow, Defendant walks back

 8 and forth between Esquirrel’s truck and Victim’s vehicle. Two minutes after he

 9 arrives, Esquirrel pulls out of the gas station and Defendant returns to Victim’s

10 vehicle. Cordova then gets into the passenger seat of the Mustang with Victim behind

11 the wheel. Defendant climbs into the driver’s seat of Cordova’s SUV and drives away

12 with Victim’s Mustang in tow.

13   {10}   The jury convicted Defendant of first-degree, willful and deliberate murder,

14 contrary to NMSA 1978, Section 30-2-1(A)(1) (1994); kidnapping, contrary to NMSA

15 1978, Section 30-4-1(A)(4) (2003); felony murder based on the predicate felony of

16 kidnapping, contrary to NMSA 1978, Section 30-2-1(A)(2) (1994); armed robbery,

17 contrary to NMSA 1978, Section 30-16-2 (1973); unlawful taking of a motor vehicle,

18 contrary to NMSA 1978, Section 30-16D-1(A) (2009); tampering with evidence,


                                              5
 1 contrary to NMSA 1978, Section 30-22-5 (2003); and conspiracy to commit

 2 kidnapping, contrary to NMSA 1978, Section 30-28-2(A) (1979). The trial court

 3 properly vacated the convictions for felony murder and unlawful taking of a motor

 4 vehicle, see State v. Garcia, 2011-NMSC-003, ¶ 39, 149 N.M. 185, 246 P.3d 1057,

 5 and ultimately sentenced Defendant to life imprisonment plus nineteen years with a

 6 credit for pre- and post-sentence confinement. Defendant appeals his convictions

 7 pursuant to this Court’s jurisdiction under Article VI, Section 2 of the New Mexico

 8 Constitution and Rule 12-102(A)(1) NMRA.

 9 III.     DISCUSSION

10   {11}   Defendant’s claims on appeal can be separated into three broad arguments.

11 First, Defendant asserts he should be retried on the basis of several independent errors

12 at his trial. Specifically, Defendant claims the trial court erred when it (1) failed to

13 exclude certain evidence as hearsay, (2) erroneously excluded other evidence as

14 hearsay, (3) failed to excuse three jurors for cause, (4) failed to exclude witness

15 testimony despite the State’s untimely disclosure of an immunity use agreement for

16 that witness, and (5) erroneously denied two motions for mistrial based on admitted

17 evidence of Defendant’s prior bad acts. Second, Defendant asserts that his counsel

18 was ineffective in (1) failing to object to testimony that violated his right of


                                              6
 1 confrontation and (2) failing to subpoena an expert in cellular location analysis.

 2 Finally, Defendant contends that cumulative error deprived him of a fair trial. Upon

 3 examination of the evidence presented and the applicable legal standards of review,

 4 we reject Defendant’s arguments and affirm his convictions.

 5   {12}   We review the trial court’s decisions relating to Defendant’s claims of

 6 independent error for abuse of discretion. “An abuse of discretion occurs when the

 7 ruling is clearly against the logic and effect of the facts and circumstances of the case.

 8 We cannot say the trial court abused its discretion by its ruling unless we can

 9 characterize it as clearly untenable or not justified by reason.” State v. Otto, 2007-

10 NMSC-012, ¶ 9, 141 N.M. 443, 157 P.3d 8 (internal quotation marks and citation

11 omitted). Ineffective assistance of counsel claims are reviewed de novo. State v.

12 Tafoya, 2012-NMSC-030, ¶ 59, 285 P.3d 604.

13 A.       Anonymous Tip Evidence

14   {13}   One missing piece of evidence in the State’s case was the murder weapon. At

15 trial, Detective Mark Craver testified that another detective had received an

16 anonymous tip that Defendant had placed the gun used in the killing in the air bag

17 compartment of a black Chevy pickup truck at his residence. The tip alleged that

18 Defendant was bragging after detectives failed to find the gun during their first search


                                               7
 1 of his residence. As we explain, the admission of this tip violated both the rule against

 2 hearsay and Defendant’s rights under the Confrontation Clause. However, this error

 3 does not support Defendant’s request for a new trial on appeal.

 4   {14}   As soon as Detective Craver mentioned the anonymous tip at trial, but before

 5 he explained what exactly the tipster told law enforcement, defense counsel objected

 6 on hearsay and relevance grounds. Importantly, defense counsel did not raise the

 7 Confrontation Clause in her objection. During the ensuing bench conference, the State

 8 responded that the tip was not being offered for the truth of the matter asserted but

 9 instead to show why the detective sought a warrant for the Chevy pickup. The State

10 continued that another witness, Ernie Ortiz, would confirm that Defendant told him

11 the gun was hidden in the air bag of the Chevy. However, later in the trial, Ortiz

12 denied that Defendant had talked to him about the murder or the gun. Ultimately, the

13 trial court permitted Detective Craver to testify to the content of the anonymous tip.

14   {15}   Defendant argues on appeal that the State’s only objective in eliciting the

15 evidence of the anonymous tip was to offer the statement for its truth, i.e., to show that

16 Defendant hid the murder weapon. Essentially, Defendant claims that the State’s

17 stated purpose served merely as an end-run around the rule against hearsay. He argues

18 he was prejudiced by the admission of the anonymous tip because it gave the


                                               8
 1 appearance to the jury that he craftily hid the murder weapon yet retrieved it before

 2 law enforcement could find it.

 3   {16}   In response, the State maintains that the tip was not hearsay because it was not

 4 offered for its truth but rather to explain why detectives sought a warrant to search the

 5 Chevy. Furthermore, the State contends that if the evidence was admitted in error, that

 6 error was harmless.

 7 1.       The anonymous tip was hearsay, but its admission was harmless

 8   {17}   Hearsay is an out-of-court statement that “a party offers in evidence to prove

 9 the truth of the matter asserted in the statement.” Rule 11-801(C) NMRA. Hearsay

10 evidence is inadmissible absent an exception. Rule 11-802 NMRA. “Statements

11 offered for a purpose other than their truth are not hearsay.” Otto, 2007-NMSC-012,

12 ¶ 18. Crucially, that separate purpose must be “legitimate.” See id. (listing such

13 legitimate purposes as “establishing knowledge, belief, good faith, reasonableness,

14 motive, [and] effect on the hearer or reader, [among] many others.” (emphasis

15 omitted) (quoting State v. Rosales, 2004-NMSC-022, ¶ 16, 136 N.M. 25, 94 P.3d

16 768). In the context of police investigations in particular, a statement “supporting the

17 reasonableness of a detective’s conduct may be admissible if relevant to a fact of

18 consequence and not offered to prove the truth of the matter asserted.” State v.


                                                9
 1 Stampley, 1999-NMSC-027, ¶ 39, 127 N.M. 426, 982 P.2d 477.

 2   {18}   Statements that would otherwise be considered hearsay may be admitted not for

 3 their truth, but to rebut suggestions that law enforcement acted unreasonably during

 4 the course of an investigation. Id. In Stampley, the defendant suggested that the

 5 investigating detective was biased and questioned the detective’s motive for targeting

 6 him as a suspect. Id. On re-direct examination of the detective, the State adduced

 7 testimony that several out-of-court declarants had identified the defendant as the

 8 shooter. Id. ¶ 36. The Court held that the trial court did not err in admitting this

 9 testimony because it “explained [the detective’s] state of mind at the time of the

10 investigation and refuted [the defendant’s] claim that she was biased against him.” Id.

11 ¶ 39.

12   {19}   Unlike the defendant in Stampley, Defendant had not questioned any of the

13 detectives’ motives during the investigation. The State asked Detective Craver about

14 the anonymous tip during direct examination, before defense counsel had any

15 opportunity to cast doubt on his investigation. In particular, the defense never attacked

16 the validity of the search warrant for the Chevy. Because the reasonableness of the

17 detective’s conduct in obtaining the additional search warrant had not been

18 questioned, there does not appear to be a legitimate purpose for the admission of the


                                              10
 1 anonymous tip. Accordingly, the trial court’s decision to allow Detective Craver to

 2 testify to the content of the anonymous tip violated the rule against hearsay, was “not

 3 justified by reason,” and therefore constituted an abuse of discretion. See Otto, 2007-

 4 NMSC-012, ¶ 9.

 5   {20}   We pause here to emphasize that trial attorneys must articulate a legitimate

 6 purpose for offering evidence that would otherwise constitute inadmissible hearsay.

 7 See id. ¶ 18. Trial judges should be exceedingly cautious in permitting evidence of an

 8 out-of-court declarant’s statements on the grounds that it is not being offered for the

 9 truth of the matter, as this response is often used to sidestep the hearsay exclusion

10 rules.

11   {21}   If evidence was improperly admitted over objection, we may grant a new trial

12 only if “the error is determined to be harmful.” State v. Tollardo, 2012-NMSC-008,

13 ¶ 25, 275 P.3d 110. “[A] non-constitutional error is harmless when there is no

14 reasonable probability the error affected the verdict.” Id. ¶ 36 (emphasis, internal

15 quotation marks, and citation omitted). As opposed to the “reasonable possibility”

16 standard used for constitutional errors, a “reasonable probability standard requires a

17 greater degree of likelihood that a particular error affected a verdict.” Id. (emphasis

18 added) (internal quotation marks and citation omitted). To assess whether the error


                                             11
 1 affected the verdict, we evaluate the circumstances surrounding the error including:

 2 “the source of the error,” the emphasis placed on the error, the importance of the

 3 erroneously admitted evidence to the case against the defendant, and whether the error

 4 was merely cumulative of properly admitted evidence or introduced new facts. Id. ¶

 5 43. We also consider the other evidence of defendant’s guilt to “provide context for

 6 understanding how the error arose and what role it may have played in the trial,” but

 7 overwhelming evidence of guilt cannot be the sole basis for a determination of

 8 harmless error. Id.

 9   {22}   The admission of the anonymous tip was harmless error. Evaluating the

10 circumstances surrounding the error, there was not a “reasonable probability” that the

11 tip affected the verdict. First, the content of the anonymous tip was not highly

12 emphasized at trial. Following Detective Craver’s testimony, the State briefly

13 discussed the Chevy with lead detective Russell Broyles. Detective Broyles testified

14 that he searched the Chevy but was unable to find a firearm. A similar exchange was

15 conducted with Detective Nicholas Marrujo. Detective Marrujo also testified that no

16 gun was found in the vehicle. None of the detectives stated that they searched the

17 vehicle based on the information provided by the tipster. Detective Broyles attempted

18 to testify that Ernie Ortiz had alerted them that the gun was in the Chevy, but the trial


                                              12
 1 court properly sustained defense counsel’s objection. Significantly, the State did not

 2 mention the anonymous tip, the black Chevy, or a gun hidden in the air bag in its

 3 closing argument to the jury.

 4   {23}   In addition, it is more likely that the jury credited Cordova’s testimony in

 5 reaching its guilty verdict on the murder charge. Cordova testified that moments after

 6 he heard at least one gunshot, Defendant returned from the underpass with a gun in

 7 hand and instructions for Cordova to return to Albuquerque without Victim. Based on

 8 the more complete picture painted by Cordova, it is not probable that the jury’s

 9 decision was tainted by the assertion that Defendant apparently hid the gun and was

10 pleased when law enforcement was unable to find it.

11   {24}   Arguably, the State benefitted from the jury’s perception that the anonymous

12 tip was credible enough for the detectives to obtain yet another warrant and expend

13 resources based on its content. However, because the State did not heavily rely on the

14 assertion within the anonymous tip and other evidence was likely more influential on

15 the jury’s verdict, the erroneous admission of the anonymous tip as nonhearsay was

16 harmless error.

17 2.       The violation of Defendant’s confrontation rights was not fundamental
18          error

19   {25}   Defense counsel did not raise the Confrontation Clause in her objection to

                                             13
 1 Detective Craver’s testimony regarding the anonymous tip. For this reason, the

 2 confrontation issue was not preserved for review. See Rule 12-321(A) NMRA (“To

 3 preserve an issue for review, it must appear that a ruling or decision by the trial court

 4 was fairly invoked.”). Defendant did not explicitly ask us to review whether the

 5 admission of the anonymous tip violated Defendant’s confrontation rights, though he

 6 does argue that his counsel’s failure to object on confrontation grounds constituted

 7 ineffective assistance of counsel.

 8   {26}   Before addressing this matter under the framework of ineffective assistance of

 9 counsel, we first address whether Defendant’s confrontation rights were violated and

10 whether that violation was fundamental error. See State v. Jade G., 2007-NMSC-010,

11 ¶ 24, 141 N.M. 284, 154 P.3d 659 (explaining that we may review issues that were not

12 preserved at trial when necessary “to protect the fundamental rights of the party”); see

13 also State v. Cabezuela, 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 (stating

14 that when a Confrontation Clause issue is not preserved, we review for fundamental

15 error). Under fundamental error review, we first determine whether an error occurred

16 and then whether that error was fundamental. Id.

17   {27}   The Confrontation Clause of the Sixth Amendment of the United States

18 Constitution bars the admission of statements by declarants who are not subject to


                                              14
 1 cross-examination by the defendant. Crawford v. Washington, 541 U.S. 36, 53-54

 2 (2004). To implicate the Confrontation Clause, the out-of-court statement must be

 3 “both testimonial and offered to prove the truth of the matter asserted.” State v.

 4 Navarette, 2013-NMSC-003, ¶ 7, 294 P.3d 435. A statement is testimonial “when the

 5 circumstances objectively indicate that there is no . . . ongoing emergency, and that

 6 the primary purpose of the [police] interrogation is to establish or prove past events

 7 potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813,

 8 822 (2006); see also Navarette, 2013-NMSC-003, ¶ 8 (explaining that a statement is

 9 testimonial if it is “primarily intending to establish some fact with the understanding

10 that the statement may be used in a criminal prosecution”).

11   {28}   The anonymous tip was testimonial hearsay. First, as we conclude above, the

12 tip was offered to prove the truth of the matter asserted in violation of the rule against

13 hearsay. Second, the tip was testimonial in nature. There is no evidence in the record

14 that the statements were given during the course of an ongoing emergency. Defendant

15 correctly states that the tipster “undoubtedly imparted information for the primary

16 purpose of assisting law enforcement in the prosecution of [Defendant].” Because the

17 anonymous tip was testimonial hearsay of a declarant who did not testify, its

18 admission at trial violated Defendant’s right to confront the witnesses against him.


                                               15
 1 Despite this violation, the admission of the anonymous tip did not constitute

 2 fundamental error.

 3   {29}   “A fundamental error occurs where there has been a miscarriage of justice, the

 4 conviction shocks the conscience, or substantial justice has been denied.” Cabezuela,

 5 2011-NMSC-041, ¶ 49 (internal quotation marks and citation omitted). “[A]

 6 defendant’s conviction shocks the conscience [when] (1) the defendant is indisputably

 7 innocent, or (2) a mistake in the process makes a conviction fundamentally unfair

 8 notwithstanding the apparent guilt of the accused.” State v. Astorga, 2015-NMSC-007,

 9 ¶ 14, 343 P.3d 1245 (alteration, internal quotation marks, and citations omitted).

10   {30}   Defendant’s conviction does not shock the conscience because he is not

11 indisputably innocent, nor does the admission of the anonymous tip constitute a

12 mistake that would “undermine judicial integrity if left unchecked,” State v. Barber,

13 2004-NMSC-019, ¶ 18, 135 N.M. 621, 92 P.3d 633.

14          On the charge of first-degree murder, the jury was instructed as follows:

15                 For you to find the defendant guilty of first-degree murder by
16          deliberate killing as charged in Count 1, the State must prove to your
17          satisfaction beyond a reasonable doubt each of the following elements
18          of the crime: One, the defendant killed Sergio Bickham; two, the killing
19          was with the deliberate intention to take away the life of Sergio
20          Bickham; three, this happened in New Mexico on or about the 10th day
21          of May, 2014.


                                              16
 1   {31}   There was substantial evidence independent of the anonymous tip upon which

 2 the jury likely relied in coming to its guilty verdict on this count. The most

 3 incriminating evidence against Defendant was Cordova’s eyewitness testimony of the

 4 events immediately before and after the killing. That testimony demonstrated that

 5 Defendant shot Victim with deliberate intention to kill him in New Mexico on May

 6 10, 2014 and was wholly independent of the anonymous tip regarding the hidden gun.

 7 Furthermore, Cordova’s testimony was corroborated by Agent Romero’s cell location

 8 testimony, which placed Defendant near the scene of the killing, and Esquirrel’s

 9 testimony that Defendant wanted to get rid of the gas station’s surveillance video even

10 if it meant blowing up the building. The weight of this evidence leads us to conclude

11 that Defendant was not indisputably innocent.

12   {32}   Additionally, though the anonymous tip’s admission was a mistake in the

13 process, it does not rise to a level that shocks the conscience or demonstrates a

14 miscarriage of justice. As the State did not rely on the anonymous tip when arguing

15 Defendant’s guilt to the jury, its erroneous admission does not undermine judicial

16 integrity. In all, the admission of the anonymous tip violated Defendant’s

17 confrontation rights but was not fundamental error.

18 B.       Ineffective Assistance of Counsel


                                             17
 1   {33}   Defendant contends that counsel’s failure (1) to object to the anonymous tip on

 2 Confrontation Clause grounds and (2) to subpoena an expert witness to rebut Agent

 3 Romero’s cellular location testimony amounted to ineffective assistance of counsel.

 4 “To establish [a prima facie case of] ineffective assistance of counsel, a defendant

 5 must show: (1) ‘counsel’s performance was deficient,’ and (2) ‘the deficient

 6 performance prejudiced the defense.’ ” State v. Paredez, 2004-NMSC-036, ¶ 13, 136

 7 N.M. 533, 101 P.3d 799 (quoting Strickland v. Washington, 466 U.S. 668, 687

 8 (1984)). We have consistently stated that “we prefer . . . ineffective assistance of

 9 counsel claim[s] to be brought in a habeas corpus proceeding, ‘so that the defendant

10 may actually develop the record with respect to defense counsel’s actions.’ ” Astorga,

11 2015-NMSC-007, ¶ 17 (quoting State v. Arrendondo, 2012-NMSC-013, ¶ 38, 278

12 P.3d 517). On direct appeal, if the defendant is able to present a prima facie case of

13 ineffective assistance of counsel based on the facts in the record, we will remand the

14 defendant’s claims to the trial court for an evidentiary hearing. See Astorga, 2015-

15 NMSC-007, ¶ 17; see also State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54

16 P.3d 61 (explaining that appellate courts evaluate the facts in the record to determine

17 if defendants have met their burden). If the defendant cannot make a prima facie case

18 based on the direct appeal record, we will presume counsel’s performance was


                                              18
 1 reasonable. Astorga, 2015-NMSC-007, ¶ 17.

 2   {34}   Under the deficient performance prong of our ineffective assistance of counsel

 3 analysis, a “defendant must point to specific lapses . . . by trial counsel.” State v.

 4 Trujillo, 2002-NMSC-005, ¶ 38, 131 N.M. 709, 42 P.3d 814 (omission in original)

 5 (internal quotation marks and citation omitted). Then, we determine whether counsel’s

 6 conduct “fell below an objective standard of reasonableness.” State v. Hunter, 2006-

 7 NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168 (quoting Strickland, 466 U.S. at 688).

 8 In doing so, we “indulge a strong presumption that counsel’s conduct falls within the

 9 wide range of reasonable professional assistance[.]” Hunter, 2006-NMSC-043, ¶ 13

10 (quoting Strickland, 466 U.S. at 689).

11   {35}   Under the prejudice prong, “a defendant must show that there is a reasonable

12 probability that, but for counsel’s unprofessional errors, the result of the proceeding

13 would have been different.” State v. Trammell, 2016-NMSC-030, ¶ 23, 387 P.3d 220

14 (alteration omitted) (quoting Strickland, 466 U.S. at 694). This is a high bar. The

15 defendant must show that “counsel’s errors were so serious, such a failure of the

16 adversarial process, that such errors undermine judicial confidence in the accuracy and

17 reliability of the outcome.” Astorga, 2015-NMSC-007, ¶ 21 (alteration omitted)

18 (quoting State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289).


                                              19
 1   {36}   We need not analyze the first prong before considering the second. “If it is

 2 easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

 3 prejudice, . . . that course should be followed.” State v. Hernandez, 1993-NMSC-007,

 4 ¶ 27, 115 N.M. 6, 846 P.2d 312 (internal quotation marks and citation omitted)

 5 (quoting Strickland, 466 U.S. at 697).

 6 1.       Defendant was not prejudiced by defense counsel’s failure to object to the
 7          admission of the anonymous tip on Confrontation Clause grounds

 8   {37}   As previously discussed, Detective Craver testified that detectives received an

 9 anonymous tip that Defendant was bragging when police had failed to find the murder

10 weapon he hid in the steering wheel of a Chevy pickup. Defense counsel objected to

11 this testimony on hearsay and relevance grounds but did not also raise the

12 Confrontation Clause. Defendant argues he received ineffective assistance of counsel

13 based on defense counsel’s failure to include the Confrontation Clause in her

14 objection, as well as her failure to seek a curative instruction to the jury not to

15 consider the evidence of a hidden weapon. He states that a “reasonably competent

16 lawyer would have objected on Confrontation Clause grounds, not just hearsay.” The

17 State responds that Defendant did not prove that the failure to object was incompetent

18 and did not show how that incompetence led to prejudice.

19   {38}   Looking to the second prong, Defendant was not prejudiced by defense

                                              20
 1 counsel’s failure to object on confrontation grounds to the admission of the

 2 anonymous tip. As we have already concluded, there was not a “reasonable

 3 probability” that Defendant would not have been convicted, but for defense counsel’s

 4 failure to raise the Confrontation Clause to bar evidence of the anonymous tip.

 5 Defendant failed to prove a prima facie case of ineffective assistance of counsel on

 6 this issue.

 7 2.       Defendant has not made a prima facie showing that failure to call an expert
 8          in cell location analysis was ineffective assistance of counsel

 9   {39}   The trial court qualified Agent Romero as an expert “Historic Cell Site Analyst”

10 over Defendant’s objection. Having reviewed the cell phone records of Defendant and

11 Cordova, Agent Romero testified to each man’s general location on the day in

12 question. Agent Romero’s testimony placed Defendant and Cordova near the locations

13 of the kidnapping and murder at the time they were alleged to have occurred. Defense

14 counsel cross-examined Agent Romero about his methods and analysis at trial.

15 Defendant’s own expert in historic cell site analysis, John Minor, did not appear for

16 trial though it appears he had consulted with the defense. Defense counsel did not

17 subpoena his presence, nor did she proffer to the trial court what Minor’s testimony

18 would be.

19   {40}   Defendant argues he was prejudiced when defense counsel failed to rebut Agent

                                               21
 1 Romero’s testimony with testimony from the defense’s own expert. The State

 2 contends that Defendant has not shown how Minor’s testimony would have led to a

 3 different result at trial.

 4   {41}   “The decision whether to call a witness is a matter of trial tactics and strategy

 5 within the control of trial counsel.” Lytle v. Jordan, 2001-NMSC-016, ¶ 47, 130 N.M.

 6 198, 22 P.3d 666 (quoting State v. Orosco, 1991-NMCA-084, ¶ 35, 113 N.M. 789,

 7 833 P.2d 1155). Especially when it comes to expert testimony, we are reluctant to

 8 second-guess trial counsel’s decisions. See Lytle, 2001-NMSC-016, ¶ 47. (“Defense

 9 counsel may simply have concluded that a battle of experts would not be beneficial

10 to the defense or that it would have unduly emphasized or inadvertently reinforced the

11 State’s evidence.”).

12   {42}   Defendant relies on State v. Aragon, 2009-NMCA-102, 147 N.M. 26, 216 P.3d

13 276, to support his argument that defense counsel’s failure to subpoena Minor was

14 unreasonable under the first prong of our ineffective assistance of counsel analysis.

15 The defendant in Aragon was charged with child abuse based on multiple doctors’

16 assessments of the cause of the child’s injuries. Id. ¶¶ 3-6. For this reason, the Court

17 noted that “expert testimony was the crux of [the] case.” Id. ¶ 12. Because expert

18 testimony was essential to both sides, the Court concluded that defense counsel had


                                               22
 1 acted unreasonably in failing to contact or retain “any sort of expert” to understand

 2 and rebut the State’s evidence and “to prepare an adequate defense.” Id. ¶ 15. The

 3 instant case is distinguishable from Aragon because cell site analysis was not the crux

 4 of the State’s case against Defendant. Other evidence, namely Cordova’s eyewitness

 5 testimony, placed Defendant at the scene of the homicide.

 6   {43}   The record on direct appeal does not support a finding that defense counsel’s

 7 decision not to subpoena Minor was professionally unreasonable. There could be

 8 several reasons defense counsel decided not to call Minor or any other expert in cell

 9 location technology. We will not speculate as to defense counsel’s motives. A more

10 developed record in a habeas corpus proceeding would allow for more comprehensive

11 evaluation of defense counsel’s performance. Accordingly, Defendant has not shown

12 that defense counsel’s failure to subpoena an expert in cell site analysis was deficient.

13   {44}   In addition, Defendant has not made a claim of prejudice on this issue.

14 Defendant has not shown how Minor’s testimony would have questioned or

15 contradicted the testimony given by Agent Romero. Therefore, he has not met his

16 burden to show that Minor’s testimony would have led to a different result at trial.

17 Absent such a showing of prejudice, Defendant has not made a prima facie case of

18 ineffective assistance of counsel on this issue.


                                              23
 1 C.       Defendant’s Remaining Claims of Independent Error

 2   {45}   Defendant argues that the trial court further erred when it (1) failed to excuse

 3 three jurors for cause, (2) excluded certain photographic evidence as hearsay; (3)

 4 failed to exclude Cordova’s testimony despite the State’s untimely disclosure of his

 5 immunity use agreement, and (4) failed to exclude evidence of Defendant’s prior bad

 6 acts. We review these errors for abuse of discretion. See State v. Gardner, 2003-

 7 NMCA-107, ¶ 16, 134 N.M. 294, 76 P.3d 47 (explaining that challenges for cause are

 8 reviewed under an abuse of discretion standard); Otto, 2007-NMSC-012, ¶ 9

 9 (explaining that evidentiary decisions are reviewed for abuse of discretion); State v.

10 Guerra, 2012-NMSC-014, ¶ 23, 278 P.3d 1031 (explaining that review of a trial

11 court’s decision to admit evidence that did not comply with notice and disclosure

12 requirements is for abuse of discretion); State v. Rojo, 1999-NMSC-001, ¶ 41, 126

13 N.M. 438, 971 P.2d 829 (reviewing ruling on admissibility of prior act evidence for

14 abuse of discretion).

15 1.       Failure to excuse jurors for cause

16   {46}   Defendant argues that potential jurors 26, 42, and 48 should have been excused

17 for cause based on their statements that they would prefer to hear from the defendant

18 before deciding the case. Because the trial court denied defense counsel’s request to


                                               24
 1 excuse those jurors, Defendant used three of his twelve peremptory strikes on those

 2 jurors. Ultimately, Defendant used all of his peremptory challenges before the trial

 3 court had finished the venire. Defendant asserts he was prejudiced by the trial court’s

 4 failure to excuse potential jurors 26, 42, and 48 for cause, thereby forcing him to use

 5 his peremptory strikes on potential jurors who had demonstrated their partiality

 6 against him.

 7   {47}   The United States and New Mexico Constitutions guarantee the right to a fair

 8 and impartial jury in a criminal trial. U.S. Const. amend. VI; N.M. Const. art. II, § 14.

 9 Defendant has the burden of proving a potential juror’s partiality. State v. Baca, 1983-

10 NMSC-049, ¶ 9, 99 N.M. 754, 664 P.2d 360. A potential juror is properly excused for

11 cause when his views would “prevent or substantially impair the performance of his

12 duties as a juror in accordance with his instructions and his oath.” State v. Sutphin,

13 1988-NMSC-031, ¶ 14, 107 N.M. 126, 753 P.2d 1314 (emphasis added) (quoting

14 Wainwright v. Witt, 469 U.S. 412, 424 (1985)).

15   {48}   During voir dire, defense counsel questioned the venire about the presumption

16 of innocence and whether jurors would need to hear from both sides before reaching

17 a verdict. When several members of the venire raised their hands in agreement that

18 they would want to hear from the defense in the case, the court called a bench


                                              25
 1 conference to clarify that it would want to know which potential jurors would be

 2 unable to follow the court’s instructions on the matter. Following the bench

 3 conference, defense counsel read aloud the jury instruction on the presumption of

 4 innocence and the State’s burden of proof, and the court asked the venire to raise their

 5 hands if they would have trouble following the instruction. Three potential jurors

 6 raised their hands, and those three were eventually excused for cause. Potential jurors

 7 26, 42, and 48 did not raise their hands after the jury instruction was read, though they

 8 had previously mentioned that they felt they should hear from both the State and

 9 Defendant before reaching a verdict.

10   {49}   Prejudice is presumed when a party must use its peremptory challenges on

11 potential jurors who should have been excused for cause, so long as that party has

12 exercised “all of his or her peremptory challenges before the court completes the

13 venire.” Fuson v. State, 1987-NMSC-034, ¶ 11, 105 N.M. 632, 735 P.2d 1138. In

14 Fuson, the defendant was forced to use a peremptory challenge on a potential juror

15 who should have been excused for cause because he said he could not be completely

16 impartial as he knew many of the witnesses in the case. Id. ¶¶ 1, 3. The Court

17 concluded that the defendant was harmed when potential jurors’ names were called

18 after he had used his last peremptory challenge. Id. ¶ 10. Therefore, the defendant’s


                                              26
 1 “right of peremptory challenge was necessarily impaired by the trial court’s failure to

 2 excuse the person for cause[.]” Id.

 3   {50}   Though Defendant used all of his peremptory challenges before the venire had

 4 been completed, he has not shown that potential jurors 26, 42, and 48 should have

 5 been excused for cause. Potential jurors 26, 42, and 48 did not raise their hands when

 6 the trial court asked to see who would not be able to follow the court’s instructions

 7 and hold the State to its burden of proof. Though they had previously expressed

 8 concerns about not hearing from both sides of the case, there is no evidence in the

 9 record that their concerns survived proper instruction from the court. By not raising

10 their hands, potential jurors 26, 42, and 48 indicated that their views would not impair

11 their ability to perform their duties in accordance with the court’s instructions.

12 Moreover, even if the record is ambiguous regarding the ability of these potential

13 jurors to remain impartial, there is no evidence of manifest error or clear abuse of

14 discretion by the trial court in not excusing these jurors for cause. See State v. Wiberg,

15 1988-NMCA-022, ¶ 21, 107 N.M. 152, 754 P.2d 529.

16 2.       Exclusion of photographs of Defendant’s affidavit as hearsay

17   {51}   During the testimony of Detective Kevin Hallstrom, defense counsel sought to

18 admit photographs of a form Defendant submitted to an insurance company claiming


                                               27
 1 that his cell phone was lost on May 9, 2014 (the day before the killing) and the

 2 response from the company requesting more documentation. The State objected to the

 3 exhibits as inadmissible hearsay being offered for the truth of the matter asserted in

 4 the documents photographed. Defense counsel made several arguments that the

 5 photographs fell into hearsay exceptions before ultimately arguing that the

 6 photographs were not being offered for their truth, but instead to show that the

 7 detective had knowledge that the phone had been reported lost or stolen. The trial

 8 court ruled that the photographs were being offered to prove the truth of the

 9 statements on the forms and were inadmissible hearsay.

10   {52}   Defendant continues to argue on appeal that the photographs of the insurance

11 affidavit were not being offered for the truth of the matter asserted, and further claims

12 that he was prejudiced by the exclusion of the photographs because he was not able

13 to question the quality of the detective’s investigation. The State responds that the

14 photographs were improperly offered for their truth and that Defendant was not

15 prejudiced because he was still able to question the detective about his investigation

16 relating to whether the phone had been lost or stolen at the time of the killing. The

17 State is correct.

18   {53}   As discussed previously in this decision, out-of-court statements offered for the


                                               28
 1 truth of the matter asserted are generally inadmissible hearsay. Rules 11-801, -802.

 2 The trial court correctly concluded that the photographs were being offered for their

 3 truth. Defense counsel aimed to discuss Defendant’s assertions within the photographs

 4 with Detective Hallstrom, that is, that Defendant had claimed his phone was lost the

 5 day before the murder. It was not an abuse of discretion for the trial court to discredit

 6 defense counsel’s stated purpose of admitting the photographs merely to show that the

 7 detective had knowledge that Defendant claimed the phone was missing the day

 8 before the murder.

 9   {54}   Additionally, Defendant was not prejudiced by the exclusion of this hearsay

10 evidence. Defense counsel asked Detective Hallstrom if he investigated whether

11 Defendant’s cell phone had been lost or stolen. This shows that Defendant was able

12 to question the completeness of law enforcement’s investigation even without the

13 photographs admitted into evidence.

14   {55}   For these reasons, we conclude that the trial court properly excluded as hearsay

15 the photographs of Defendant’s affidavit.

16 3.       Failure to exclude Cordova’s testimony

17   {56}   During Cordova’s testimony, defense counsel learned that Cordova had entered

18 into an immunity use agreement with the State in exchange for his participation at


                                               29
 1 trial. Defense counsel argued at trial that Defendant was prejudiced by the State’s

 2 failure to disclose the agreement before the trial. On appeal, Defendant contends that

 3 he was prejudiced by the late disclosure of the immunity use agreement because he

 4 was not able to adequately prepare for cross-examination of the State’s key

 5 eyewitness.

 6   {57}   “Trial courts possess broad discretionary authority to decide what sanction to

 7 impose when a discovery order is violated.” State v. Le Mier, 2017-NMSC-017, ¶ 22,

 8 394 P.3d 959. When the State fails to comply with a discovery order, the trial court

 9 should fashion a sanction based on the “extent of the [State’s] culpability . . . weighed

10 against the amount of prejudice to the defense.” State v. Harper, 2011-NMSC-044,

11 ¶ 16, 150 N.M. 745, 266 P.3d 25 (omission in original) (internal quotation marks and

12 citation omitted). A trial court is justified in excluding a witness when “the State’s

13 conduct is especially culpable, such as where evidence is unilaterally withheld . . . in

14 bad faith, or all access to the evidence is precluded by State intransigence.” Id. ¶ 17.

15 In imposing discovery sanctions, trial courts are advised to seek those sanctions “that

16 affect the evidence at trial and the merits of the case as little as possible.” Id. ¶ 16

17 (internal quotation marks and citation omitted). This is because “witness exclusion is

18 a severe sanction and one that should be utilized as a sanction of last resort.” Le Mier,


                                              30
 1 2017-NMSC-017, ¶ 21.

 2   {58}   After learning that the State had not disclosed the immunity use agreement, the

 3 trial court allowed defense counsel to question Cordova without the jury present.

 4 During the interview, Cordova said he did not remember the details of the agreement

 5 he made with the state months prior but would have remembered if he had been asked

 6 closer in time to the finalization of the agreement. The trial court decided not to

 7 exclude Cordova’s testimony, but sanctioned the State for its tardy disclosure of the

 8 immunity use agreement. The trial court fined the State $275 ($25 for every month

 9 that it failed to disclose the immunity use agreement to defense counsel).

10   {59}   The trial court’s decision to allow Cordova’s testimony and fine the State for

11 its late disclosure was not an abuse of discretion. The State’s failure to notify defense

12 counsel of the immunity use agreement before trial does not rise to the level of

13 culpability contemplated in Harper. The record does not demonstrate that the State

14 “unilaterally withheld” notice of the agreement in “bad faith,” nor did it preclude all

15 access to the evidence. See Harper, 2011-NMSC-044, ¶ 17. The State explained that

16 there was no intent to hide the agreement from defense counsel. Furthermore, Cordova

17 was made available to the defense in pretrial interviews, which shows that the State

18 did not preclude defense counsel from all access to Cordova’s testimony.


                                              31
 1   {60}   Defendant was not prejudiced by the State’s late disclosure of the agreement

 2 because the trial court permitted defense counsel to question Cordova outside of the

 3 jury before she cross-examined him at trial. Additionally, defense counsel had access

 4 to all other evidence before trial, including Cordova’s version of events. Therefore,

 5 the trial court’s decision not to exclude Cordova’s testimony and instead fine the State

 6 for its tardy disclosure of the immunity use agreement was within its broad discretion

 7 to impose appropriate discovery sanctions.

 8 4.       Denial of Defendant’s motions for new trial

 9   {61}   Defendant argues that the trial court should have declared a mistrial based on

10 two pieces of admitted evidence of his prior bad acts. The first was Esquirrel’s

11 statement on the stand that he had bought drugs from Defendant. The second was

12 Ortiz’s testimony alluding to a four-hour standoff with police. We review the denial

13 of a motion for new trial for abuse of discretion. State v. Smith, 2016-NMSC-007, ¶

14 69, 367 P.3d 420. “The power to declare a mistrial should be exercised with the

15 greatest caution. . . . An argument for mistrial must show that the error committed

16 constituted legal error, and the error was so substantial as to require a new trial.” Id.

17 (alteration, internal quotation marks, and citation omitted).

18 a.       Evidence that Defendant sold drugs to Esquirrel


                                              32
 1   {62}   Prior to trial, the trial court issued an order instructing the State to “neutralize

 2 as much as possible the testimony regarding drug use by the decedent and/or the

 3 defendant” and forbidding the State from “elicit[ing] any specific drug names.” This

 4 order was issued in accordance with Rule of Evidence 11-404 NMRA, which bars

 5 “[e]vidence of a person’s character or character trait . . . to prove that on a particular

 6 occasion the person acted in accordance with the character or trait,” unless that

 7 evidence is being offered for another reason, such as to prove motive. Rule 11-

 8 404(A)-(B) NMRA. The State’s theory of the case was that Defendant killed Victim

 9 over a drug debt. The order permitted evidence of Defendant’s drug dealing to prove

10 that motive.

11   {63}   At trial, defense counsel moved for a mistrial based on Esquirrel’s testimony

12 that he bought drugs from Defendant. The State argued that there was already

13 evidence before the jury that Victim had owed a $600 drug debt to Defendant, so

14 Esquirrel’s testimony did not offend the pretrial order. The trial court denied the

15 motion for new trial, in part because Esquirrel did not state that he bought

16 methamphetamine from Defendant, so his testimony did not exceed the bounds of the

17 pretrial order.

18   {64}   The trial court did not abuse its discretion in denying defense counsel’s motion


                                                 33
 1 for new trial based on Esquirrel’s testimony. Esquirrel only briefly mentioned that he

 2 bought drugs from Defendant. Because the trial court had already ruled that evidence

 3 of Defendant’s drug sales was permissible to prove motive under Rule 11-404(B),

 4 Esquirrel’s testimony was not legal error. See Smith, 2016-NMSC-007, ¶ 69.

 5 b.       Evidence of a “standoff”

 6   {65}   During direct examination of Ortiz, the State asked if Ortiz remembered telling

 7 police about Defendant’s statements regarding Victim’s killing. When Ortiz

 8 continually stated that he did not recall what he said to police, the State asked if he

 9 would like to hear a recording of his conversation with law enforcement. Without

10 having been asked a question, Ortiz blurted out, “If it’s on recording, it’s after four

11 hours of getting high on the standoff, so I don’t care.” When the State asked again if

12 he would like to hear the recording, Ortiz stated, “I don’t want to hear it. I’m telling

13 you right now, I was there for four hours during a standoff.”

14   {66}   Defense counsel moved for a mistrial based on the mention of a “standoff,”

15 referring to the confrontation between police and Defendant at the time of his arrest.

16 The trial court agreed that the mention of a standoff was improper but denied defense

17 counsel’s motion. The trial court explained that Ortiz did not get into “enough detail

18 about what he means about a standoff [and h]e said nothing about the level to which


                                              34
 1 Mr. Gallegos may have been in a standoff.” The trial court offered to immediately

 2 excuse Ortiz if defense counsel did not wish to cross-examine him, which defense

 3 counsel accepted.

 4   {67}   When inadmissible testimony comes in at trial, on appeal “we must determine

 5 whether there is a reasonable probability that the improperly admitted evidence could

 6 have induced the jury’s verdict.” State v. Gonzales, 2000-NMSC-028, ¶ 39, 129 N.M.

 7 556, 11 P.3d 131, overruled on other grounds by Tollardo, 2012-NMSC-008, ¶ 37

 8 n.6. Any error stemming from Ortiz’s testimony was harmless. The State did not

 9 mention the standoff again and did not use Ortiz’s statement in closing its case to the

10 jury. As the trial court stated, it was not clear from Ortiz’s testimony that Defendant

11 was involved at all in the “standoff.” For these reasons, it is not reasonably probable

12 that the jury rested its verdict on Ortiz’s reluctant testimony and brief, unexplained

13 mention of a “standoff.” Consequently, Defendant is not entitled to a new trial on

14 these grounds.

15 D.       Cumulative Error

16   {68}   Finally, Defendant argues he did not receive a fair trial on the basis of

17 cumulative error. “The doctrine of cumulative error requires reversal when a series of

18 lesser improprieties throughout a trial are found, in aggregate, to be so prejudicial that


                                               35
 1 the defendant was deprived of the constitutional right to a fair trial.” Guerra, 2012-

 2 NMSC-014, ¶ 47 (internal quotation marks and citations omitted). This doctrine is

 3 “strictly applied and may not be successfully invoked if the record as a whole

 4 demonstrates that the defendant received a fair trial.” Id. (internal quotation marks and

 5 citation omitted).

 6   {69}   We conclude above that the trial court indeed erred when it admitted the

 7 anonymous tip alleging that Defendant bragged that police had not found the hidden

 8 murder weapon. However, this error was harmless. Our study of the record and the

 9 applicable legal standards of review leads us to conclude that no additional errors were

10 made at Defendant’s trial. As a result, Defendant is not entitled to a new trial on the

11 basis of cumulative error.

12 IV.      CONCLUSION

13   {70}   We conclude that Defendant received a fair trial. We determine that the trial

14 court’s admission of the anonymous tip regarding the murder weapon was harmless

15 error. Defendant’s remaining claims of error are unpersuasive. Furthermore,

16 Defendant has not made a prima facie case of ineffective assistance of counsel. We

17 therefore affirm Defendant’s convictions.

18   {71}   IT IS SO ORDERED.


                                              36
1                                       ________________________________
2                                       BARBARA J. VIGIL, Justice


3 WE CONCUR:



4 _____________________________________
5 JUDITH K. NAKAMURA, Chief Justice



6 _____________________________________
7 MICHAEL E. VIGIL, Justice



 8 _____________________________________
 9 PETRA JIMENEZ MAES, Justice, Retired
10 Sitting by designation



11 _____________________________________
12 CHARLES W. DANIELS, Justice, Retired
13 Sitting by designation




                                   37
