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                                                                       New Mexico Compilation
                                                                     Commission, Santa Fe, NM
                                                                    '00'05- 15:04:18 2016.02.10


Certiorari Denied, December 30, 2015, No. S-1-SC-35602

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMCA-015

Filing Date: October 20, 2015

Docket No. 32,374

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

MICHAEL PAUL ASTORGA,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Stan Whitaker, District Judge

Hector H. Balderas, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
David Henderson, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                          OPINION

KENNEDY, Judge.

{1}      Michael Astorga (Defendant) stands convicted of the second-degree murder of
Candido Martinez. At trial, the deposition of Adeline Martinez, the decedent’s sister, was
read to the jury. The deposition was taken by counsel for the State and Defense and used at
trial without objection. Prior to the beginning of voir dire, Defendant’s counsel, along with
counsel for the State, met with the district court to discuss jury questionnaires from the first

                                               1
of apparently three jury panels summoned by the court for trial. Some members of the venire
panel were excluded as exempt, some for cause, and the remainder appeared for voir dire and
jury selection.

{2}     Defendant argues that the district court erred by failing to inquire as to Defendant’s
waiver of his right to be present at the deposition of a witness and a portion of the jury
selection. The parties are familiar with the facts,1 and for the sake of brevity in this opinion
we present only such facts as are needed for our discussion of the issues.

I.      DISCUSSION

A.      We Review for Fundamental Error Only

{3}      Defendant neither objected to the admissibility of the Martinez deposition testimony
at trial, nor raised the issue of his presence when it was taken. He also did not assert any
error from him not being present during the conference that preceded jury selection in his
case.2 Defendant thus failed to preserve the issues for appellate review. See Rule 12-216
NMRA (stating that in order to preserve a question for review, a party must invoke a ruling
or decision by the district court). As such, we review the issues he raises for fundamental
error. State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633.

{4}      Fundamental error comprises a case-specific calculation. To prevail, Defendant must
demonstrate that any error goes to the foundation of the case or takes away a right that was
essential to the defense and “which no court could or ought to permit him to waive.” Id.
(quoting State v. Garcia, 1942-NMSC-030, ¶ 25, 46 N.M. 302, 128 P.2d 459). Fundamental
error is also a doctrine by which courts can “cut through procedure in order to protect the
defendant’s substantive rights[,]” Id. ¶ 15, by focusing “less on guilt and innocence and more
on process and the underlying integrity of our judicial system.” Id. ¶ 16. In respect of judicial
integrity, a mistake in the process may make the conviction fundamentally unfair
notwithstanding the apparent guilt of the accused, thereby resulting in a miscarriage of
justice. Id. ¶ 17. Here, we do not consider the situation where fundamental error might apply
if Defendant’s guilt is less than firmly established. See, e.g., State v. Swick, 2012-NMSC-
018, ¶ 46, 279 P.3d 747.

{5}     The burden of demonstrating fundamental error is on the party alleging it, State v.


        1
        We have addressed the facts and other issues raised by Defendant in this appeal in
a separate memorandum opinion filed in this case, State v. Astorga, No., 32,374, slip op.
(N.M. Ct. App. Oct. __, 2015 (non-precedential) concurrently filed on this date. The facts
applicable to those issues and our affirming Defendant’s convictions on the merits are set
forth more completely in that opinion.
        2
         Defendant also did not raise these issues in his docketing statement.

                                               2
Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176, and the standard of
review for reversal for fundamental error is an “exacting” one. State v. Samora, 2013-
NMSC-038, ¶ 17, 307 P.3d 328. Defendant must demonstrate prejudice from the errors he
alleges; absent a showing of prejudice, Defendant cannot demonstrate error, let alone
fundamental error, which we require for unpreserved claims. See State v. Fernandez, 1994-
NMCA-056, ¶ 16, 117 N.M. 673, 875 P.2d 1104; see also 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.”). Here, our decision depends on whether the situations of which
Defendant complains rise to the level of calling the process of the trial into question to an
extent sufficient to hold that its result cannot be sustained on appeal. For the following
reasons, we determine that they do not.

B.     The Deposition

{6}      On December 27, 2011, Ms. Martinez informed the State that owing to an acute
medical condition, she would be unable to travel from Albuquerque to testify at Defendant’s
trial in Las Cruces. Defendant was informed of this situation by the State’s motion for
deposition. Ms. Martinez’ deposition was taken in Albuquerque upon the State’s notice on
Friday, January 6, 2012. The deposition proceeded without objection by either party, and
was taken in her hospital room. Defense counsel was present, and participated by cross-
examining the witness. The record is silent as to whether defense counsel ever sought to
have Defendant attend the deposition, but Defendant does not allege that he was unaware
of it.

{7}       The admissibility of the deposition was addressed by counsel and the court prior to
trial, in Defendant’s presence, and no objection was raised then to its introduction, nor was
there any mention that Defendant was not present at the deposition. Defendant objected
based on relevance to Ms. Martinez’ testimony about bad blood between Defendant and her
family because cross-examining the sources of her information was impossible. The
objection was overruled. The parties worked out a stipulation for redacted contents of the
deposition to be read to the jury, thus eliminating matters conceded by both sides to be
prejudicial. Defendant was present and made no further objections as the limited portions
of Ms. Martinez’ deposition were read into the record at trial.

1.     Purpose of the Deposition

{8}     Ms. Martinez’ deposition was taken by the State for two purposes: her understanding
of a long-festering dispute between the families of Defendant and the decedent, and if
needed, her recollection that witness Rudy Contreras told her that Defendant had shot the
decedent on the same night of the shooting at the hospital where she was attending the
decedent. The district court ruled that Contreras’ statement would not be admissible at all
absent his denying having made it during his testimony. Contreras denied the statement, and
the deposition was used to impeach him. During his closing argument, Defendant referenced
Ms. Martinez’ deposition and used it in an attempt to discredit Contreras’s testimony.

                                             3
{9}     Ms. Martinez’ testimony impeaching Contreras’ denial of his comment to her at the
hospital is not substantive evidence, and does not implicate the Confrontation Clause.3 See
State v. Granillo-Macias, 2008-NMCA-021, ¶ 23, 143 N.M. 455, 176 P.3d 1187
(acknowledging that the Confrontation Clause extends only to persons offering substantive
evidence against a defendant at trial). Her deposition testimony was not offered for its
substantive truth or falsity, but under Rule 11-801(D)(1)(a) NMRA governing prior
inconsistent statements. State v. Astorga, 2015-NMSC-007, ¶ 31, 343 P.3d 1245 (stating that
“prior inconsistent statements are inherently relevant for a ‘non-hearsay’ purpose [of]
impeaching a witness’s credibility”).

{10} Ms. Martinez’ substantive testimony presented her knowledge of family history as
to bad blood between her brother and Defendant. The jury heard from Maez, Prieto, and
Contreras that the ‘59 El Camino was a source of enmity between Defendant and decedent.
Use of the deposition in this regard was cumulative, and of little weight for calculating
fundamental error. State v. Crain, 1997-NMCA-101, ¶ 29, 124 N.M. 84, 946 P.2d 1095
(admission of objectionable testimony may be harmless when it is cumulative of other
evidence); see State v. Lopez, 2000-NMSC-003, ¶ 21, 128 N.M. 410, 993 P.2d 727 (holding
that where improper testimony was cumulative of testimony of three other witnesses, was
harmless beyond a reasonable doubt).

{11} The two purposes for which the deposition was used do not indicate to us a defect
in the proceedings that results from Defendant’s absence that is so substantial as to call the
integrity of the trial into question. Defendant’s argument is that the district court erred “when
it failed to make any inquiry whether [Defendant] waived his right to be present” during the
deposition and a portion of jury selection. Defendant gives us no New Mexico authority
holding that a pretrial deposition is a critical stage of the proceedings requiring his presence.
Rule 5-503(F) NMRA generally governing depositions in criminal cases not only does not
require a defendant’s presence, but allows a party in a criminal case to submit written
questions to a deponent “[i]n lieu of participating in the oral examination.” In State v.
Herrera, 2004-NMCA-015, ¶ 9, 135 N.M. 79, 84 P.3d 696, the defendant did not respond
to the State’s motion for the deposition, did not object at the time of the deposition, or the
time the deposition was used at trial, and used the deposition at trial in closing arguments.
We held that he implicitly waived his right to face-to-face confrontation with the witness.
Id. We acknowledge that in Herrera, the defendant took part in the deposition from another
room and was able to communicate with counsel, id. ¶ 11, but we held the waiver resulted
from giving no indication of concern with the admission of the deposition. Id. ¶ 14.

{12}    In this case, necessity dictated the deposition be taken; the parties had a month’s


        3
         We acknowledge Defendant’s point in his reply brief that the State misguidedly
attempted in its answer brief to use Martinez’ impeaching statement as part of the
substantive and substantial evidence showing Defendant’s guilt at trial. However, its use at
trial was properly stated as impeachment of Contreras.

                                               4
notice from the witness that she would be unavailable for trial due to a medical condition
that required her deposition be taken in hospital. The use of Ms. Martinez’ testimony was
cumulative as to the history of Defendant’s grudge against the decedent, and was cross-
examined based on family hearsay. The use of Contreras’ prior inconsistent statement cannot
form the basis for a confrontation violation, nor is it hearsay. Defendant asserts no prejudice
from the use of the deposition. In the presence of the Defendant, defense counsel made a
tactical decision, by which Defendant is bound, to use the deposition at trial, and to argue
its weight and implications to the jury in closing argument. At no point did Defendant object
or indicate in any way that he disagreed with defense counsel’s decisions. We regard those
tactical decisions as negating the existence of fundamental error with regard to Defendant’s
presence at the deposition. See State v. Reim, 2014 MT 108, ¶ 41, 374 Mont. 487, 323 P.3d
880 (finding no fundamental error when the defendant’s counsel attended deposition, fully
cross-examined the witness, and the deposition was admitted at trial without objection).

{13} Because Defendant had notice of Ms. Martinez’ deposition, was fully represented at
the deposition, did not object to its use at trial, and in fact used it in his defense, we hold that
the district court did not err, when it did not inquire whether Defendant had waived his right
to be present at Ms. Martinez’ deposition, although this case presents a cautionary example
for both courts and defendants. Defendant has not carried his burden to establish the
existence of fundamental error on this issue. We next address whether the district court erred
in failing to inquire as to whether Defendant waived his right to be present during a
preliminary stage of jury selection.

C.      “Culling”

{14} Defendant next argues that the district court also erred in failing to inquire whether
he had waived his right to be present at a conference between the district court and counsel
that occurred in Albuquerque on Friday, January 6, 2012,4 preceding the commencement on
the following Monday of jury selection for trial. As with the deposition question, Defendant
does not directly allege that his rights to be present were violated, or that he was prejudiced.
There is no indication in the record, for instance, that he was not informed by counsel of the
proceedings, wished to be present, or otherwise suffered any prejudice from the lack of his
presence. He does not seek to demonstrate any greater prejudice to his case than a simple
alleged violation of his right to be present at a “critical stage” of the proceedings. When
jurors appeared on Monday for voir dire examination and jury selection, Defendant was
present. He simply states that it was error not to be asked by the trial court whether his
presence at a conference to discuss juror qualification based on their questionnaires was
something voluntarily waived. Again, since no error was preserved below, we review for
fundamental error.

{15}    We recognize that there are some rights that are so personal to the defendant that


        4
         The jury culling preceded the deposition of Ms. Martinez by minutes.

                                                 5
inquiry into a defendant’s decision to waive them is necessary, such as the right to counsel,
the right to go to trial, and the right to plead guilty. State v. Singleton, 2001-NMCA-054, ¶
12, 130 N.M. 583, 28 P.3d 1124. Presence at the critical stage of “jury selection” is generally
such a right. State v. Padilla, 2002-NMSC-016, ¶ 11, 132 N.M. 247, 46 P.3d 1247. However,
it is not such an essential right that absence from voir dire requires automatic reversal. Id.
¶ 17. Padilla also recognized that a defendant’s presence at that stage may be voluntarily
waived, id. ¶ 14, even by implication, id. ¶ 12. Padilla addressed absence at voir dire, not
a preliminary assessment of jurors’ qualifications based on juror questionnaires. Id.

{16} The State relies on State v. Huff, 1998-NMCA-075, 125 N.M. 254, 960 P.2d 342, and
State v. Sanders, 2000-NMSC-032, 129 N.M. 728, 13 P.3d 460, to the effect that the
proceeding at which Defendant was not present was not voir dire, and not one in which he
had an enforceable right to participate. The State asserts that the conference involved “the
jury culling process” and therefore, the district court was not obligated to inquire after
Defendant’s waiver of presence. We first evaluate whether what occurred qualifies as jury
“culling” under Huff and Sanders, and then address whether Defendant had a right to be
present during the district court’s conference with counsel.

1.     The Conference

{17} From our review of the transcript, it appears that the district court, the State, and
defense counsel engaged in an on-record conference in chambers regarding the
disqualification of a number of potential jurors from the first of three pools. The court and
the parties had previously determined that voir dire would be conducted in groups of thirty
prospective jurors in Las Cruces beginning the Monday following the conference. The
purpose of the conference was to go through the juror questionnaires that had been received
to determine, as a preliminary matter, which jurors on the panel were likely subject to
challenge and excusal, and could be excused for cause and notified so they did not have to
travel to Las Cruces. No jurors were present or questioned during this conference. Counsel
were present, Defendant was not.

{18} During the conference, the district court went through a list it had prepared of “good
strong challenges” for cause with the parties, and struck for cause fifteen panel members
who, because of their questionnaire responses, generally fit into one—or more—of the
following categories: those who had previously researched Defendant, the case, his previous
convictions, and also had negative opinions of Defendant personally from this information;
those who claimed religious proscriptions against service; one juror who had family
members who had been murdered, and one who made statements of serious prejudice toward
illegal immigrants. One other juror was excluded at the State’s suggestion for demonstrating
prejudice, and another was struck for indicating an inability to deliberate. No juror was
excused for cause absent concurrence by both the State and defense. One juror with an
equivocal demonstration of prejudice was explicitly left on the panel for later voir dire in
open court, and some jurors with questions concerning United States citizenship were left


                                              6
for voir dire as well.5 Defendant makes no assertion that he did not receive a fair and
impartial jury.

2.     Culling is Not Voir Dire

{19} Defendant is correct that a criminal defendant has a constitutional right to be present
at all critical stages of trial, see Rule 5-612(A) NMRA, and that jury selection is considered
a critical stage. Padilla, 2002-NMSC-016, ¶ 11. On the other hand, despite Defendant’s
reliance on Padilla, id., which is silent on the matter, the State correctly points out that our
Supreme Court has held that a defendant has no statutory authority to participate in the jury
“culling” process, where the judge disqualifies or exempts prospective jurors pursuant to the
statutory exemptions contained in NMSA 1978, §§ 38-5-1 (2006) and 38-5-11(B) (2005);
Sanders, 2000-NMSC-032, ¶ 24 (holding that the district court properly denied the
defendant’s motion to monitor culling of jurors who are “disqualified or excused on statutory
grounds” (internal quotation marks and citation omitted)). The exemptions in the former
statute are limited to “physical or mental illness or infirmity” and “undue or extreme
physical or financial hardship.” Section 38-5-1(A). The latter statute permits jury
questionnaires to be administered for the purpose of obtaining information to aid the court
in ruling on requests for a number of purposes. It provides:

              B.      The judge or the judge’s designee shall submit questionnaires
       to prospective jurors to:

                       (1)    obtain any information that will aid the court in ruling
       on requests for exemption or excuse from service or postponement of service;

                       (2)       aid the court and the parties in voir dire examination
       of jurors or in determining a juror's qualifications to serve on a particular
       petit jury panel, trial jury or grand jury; or

                    (3)     aid in the determination of challenges for cause and
       peremptory challenges.

Section 38-5-11(B). In Sanders, 2000-NMSC-032, ¶ 24, our Supreme Court held that the
culling process involves both statutes. We read Sanders to expand Huff’s statutory
application to permit the culling process to go beyond determining exemptions from service
under Section 38-5-1 to address the qualification of jurors to serve, and determine challenges
for cause under Section 38-5-11(B). In Huff, the defendant argued that he should have been
present when the clerk of the court culled disqualified or exempted members from the jury


       5
          This process seems to parallel the ones mentioned in State v. Vasquez,
2010-NMCA-041, ¶ 34, 148 N.M. 202, 232 P.3d 438, and State v. Mantelli, 2002-NMCA-
033, ¶ 52, 131 N.M. 692, 42 P.3d 272.

                                               7
pool prior to voir dire examination. We found that the defendant’s presence would not have
any effect on that process. We further noted that he would not be able to provide any special
insight into the process of removing jurors from the jury pool who were disqualified or
excused on statutory grounds. See Section 38-5-1. In Sanders, the defendant filed a motion
to monitor the jury culling process, which was denied. The Sanders court referred to our
recent decision on this very issue in Huff and noted that the Huff reasoning was particularly
convincing when viewed in light of Section 38-5-11(C), which provides for inspection and
copying of qualified jury panel members’ questionnaires. We conclude that juror
questionnaires have a place in culling prospective jurors when they demonstrate an adequate
degree of potential impairment of the performance of their duties under their oath, and
further, that Sanders contemplated the culling process, and the exercise of judicial discretion
in allowing challenges for cause based on questionnaires.

{20} Defendant has registered no complaint about any of the jurors who were excluded,
and was present for voir dire and selection of the trial jury. The process of voir dire where
a defendant and his counsel are “face-to-face with the jurors,” attempting to read the reaction
of jurors to the lawyer and client is the critical stage for which our Supreme Court
recognized a right to the defendant’s presence in State v. Garcia, 1980-NMSC-132, ¶ 15, 95
N.M. 246, 620 P.2d 1271. The weight of authority requiring a defendant’s presence during
jury selection is limited to the actual voir dire questioning of jurors where the value of a
Defendant’s presence “depend[s] upon the aid which, by his personal presence, he may give
to counsel and to the court and triers in the selection of jurors.” Lewis v. United States, 146
U.S. 370, 373 (1892). In Lewis, the right of the defendant to be present recognized the value
associated with face-to-face contact to facilitate the process of peremptory challenges, when
challenges for cause had proven “insufficient to set aside the juror[.]” Id. at 376-77. Voir dire
includes not only the introduction of the jurors to facts in the case, but subjects them to
scrutiny by the court and parties of “not only spoken words but also gestures and attitudes
of all participants to ensure the jury’s impartiality.” Gomez v. United States, 490 U.S. 858,
874-75 (1989).

{21} Culling actually complements the voir dire process by narrowing the jury pool to
more qualified candidates. The U.S. Supreme Court has recognized the value of juror
questionnaires in performing initial screening of jurors in cases, such as this, where a large
jury pool is involved. Skilling v. United States, 561 U.S. 358 (2010). In Skilling, the
“[d]istrict [c]ourt initially screened venire members by eliciting their responses to a
comprehensive questionnaire.” Id. at 388. The questionnaire “helped to identify prospective
jurors excusable for cause and served as a springboard for further questions put to remaining
members of the array.” Id. The Supreme Court concluded that combining the initial culling
process with a subsequent “face-to-face opportunity to gauge demeanor and credibility,
coupled with information from the questionnaires regarding jurors’ backgrounds, opinions,
and sources of news, gave the court a sturdy foundation to assess fitness for jury service.”
Id. at 395. The California Supreme Court, when reviewing this same process, held that “the
procedure benefited all parties by substantially expediting the jury selection process and
“culling out” prospective jurors who probably would have been unable to serve.” People v.

                                               8
Ervin, 22 Cal. 4th 48, 78, 990 P.2d 506, 521 (Cal. 2000). Its ruling was based on an
assessment that the “[d]efendant’s presence at the jury screening discussions would have
served little tactical purpose.” Id. Gomez, distinguished between the face-to-face
examination of jurors’ qualifications where scrutiny of “spoken words but also gestures and
attitudes of all participants to ensure the jury’s impartiality” from an “administrative
empanelment process.” 490 U.S. at 874-75. Accordingly, as described in Sanders, the
“culling” process “is the stage in which the judge or designee disqualifies or exempts
prospective jurors pursuant to the statutory exemptions contained in [Section] 38-5-1 and
[Section] 38-5-11(B).” Sanders, 2000-NMSC-032, ¶ 24.

{22} We conclude that the process employed by the district court in this case was proper
culling, at which Defendant had no fundamental right to be present, since culling is a
basically administrative process occurring outside the presence of the jurors. Facially
qualified jurors who remained were then available for full questioning by the court and
parties in voir dire with Defendant present. Such a process is more efficient for a lack of
obviously disqualified jurors, and permits Defendant the full exercise of his rights to the
face-to-face process of evaluating trial jurors. This view squares with Sanders that a
defendant had no right to be present during culling because, “unlike the process of
challenging potential jurors where [the d]efendant may be able to discern some bias or
prejudice, [the d]efendant can provide no special insight into the removal of jurors from the
pool who are disqualified or excused on statutory grounds.” Id. (quoting Huff, 1998-NMCA-
075, ¶ 31).

{23} Therefore, following Sanders, since questionnaires from the jurors can aid in
preparing for either voir dire, or determining juror qualification to serve while also aiding
“in the determination of challenges for cause,” Section 38-5-11(B)(2), (3), we hold that using
them to thin the ranks of prospective jurors who are clearly disqualified for statutory
exemptions or other good cause constitutes permissible “culling” for which the Defendant
need not be present. Defendant and his attorney were present for all subsequent stages of
jury selection, including questioning and exercising any other resulting challenges.

{24} We conclude that Defendant has failed to demonstrate any fundamental error,
because a “fundamental error occurs where there has been a miscarriage of justice, the
conviction shocks the conscience, or substantial justice has been denied.” State v. Cabezuela,
2011-NMSC-041 ¶ 49, 150 N.M. 654, 265 P.3d 705 (internal quotation marks and citation
omitted). Defendant has alleged no consequence from any error in not inquiring as to
whether he waived his presence for the jury culling, and we have determined that under
Sanders, he had no such right. Since Defendant fails to point us to any reason that the
conference, and the exclusion of jurors that resulted from it, somehow contributed to his
conviction or resulted in an unsound process that prejudiced his rights, we will not search
for facts to support any such conclusion. See State v. Soutar, 2012-NMCA-024, ¶ 39, 272
P.3d 154. Indeed, the parties and the court removed only jurors whose bias against
Defendant was readily apparent; jurors whose prejudice or bias was deemed equivocal were
left for full questioning during voir dire.

                                              9
This Appeal Is Not a Proxy for an Ineffective Assistance Claim

{25} To the extent that Defendant implicitly asserts that failure to object to use of the
deposition testimony, or not insisting on his presence at the discussion preceding jury
selection reflects some defect in performance on the part of his trial counsel, a claim of
ineffective assistance of counsel is best addressed in a habeas corpus proceeding. Samora,
2013-NMSC-038, ¶ 23

II.    CONCLUSION

{26} To the extent that Defendant was not present for Ms. Martinez’ deposition or the
meeting between the trial court and counsel prior to jury selection, we observe no procedural
or substantive defects in the process that rise to a level that would deprive Defendant of the
fundamental fairness of the proceedings. As such, we find no fundamental error, and,
together with the reasons given in the memorandum opinion filed herewith, affirm
Defendant’s convictions in the district court.

{27}   IT IS SO ORDERED.

                                              ____________________________________
                                              RODERICK T. KENNEDY, Judge

WE CONCUR:

____________________________________
MICHAEL D. BUSTAMANTE, Judge

____________________________________
M. MONICA ZAMORA, Judge




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