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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     NO. 34,377

 5 RED DAWN HENDERSON,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
 8 Grant L. Foutz, District Judge


 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 WECHSLER, Judge.
 1   {1}   Defendant appeals from the district court’s judgment and sentence, convicting

 2 him for aggravated battery with a deadly weapon and sentencing him to seven years

 3 incarceration and two years of parole under the habitual offender statute. We issued

 4 a notice of proposed summary disposition, proposing to affirm. Defendant has

 5 responded to our notice with a memorandum in opposition. We have considered

 6 Defendant’s response and remain unpersuaded that he has demonstrated error. We

 7 therefore affirm.

 8   {2}   Defendant raises one issue on appeal, asking whether the district court erred by

 9 denying his motion for a mistrial after the court refused to dismiss the day’s venire

10 panel, after one prospective juror stated within earshot of others that she was

11 Defendant’s grade school teacher and Defendant always was a trouble-maker and was

12 most likely guilty. [DS 3-4; MIO 4-6] Our notice proposed to hold that the district

13 court judge applied the appropriate remedies to remove any potential taint from the

14 venire, based on representations in Defendant’s docketing statement that the district

15 court (1) agreed to strike all jurors who heard the comments and (2) went back on the

16 record with the full venire and asked if anyone heard comments made in the hallway.

17 [DS 3] The docketing statement further stated that none of the jurors stated that he or

18 she had heard the comments. [DS 3] Defendant’s memorandum in opposition to our

19 notice states that the district court did not bring the entire panel in for questioning, but

                                                2
 1 rather identified potential jurors from the hallway based on a video with no audio and

 2 individually questioned them. [MIO 3, n.3] The memorandum in opposition further

 3 states that multiple other people were in the hallway and that one juror who was not

 4 involved in the conversation nevertheless heard the comments. [MIO 4] The district

 5 court denied the motion for a mistrial, finding that its remedy was sufficient and

 6 expressing doubt that the entire jury panel was tainted in a manner that would deny

 7 Defendant a fair trial. [MIO 4]

 8   {3}   While we agree that the district court’s remedy, as represented in the

 9 memorandum in opposition, is not as thorough a remedy as asking the entire jury

10 venire if anyone heard the comments, Defendant’s argument that he was denied a fair

11 and impartial jury under these new facts continues to be speculative. Defendant still

12 cannot point out any particular juror who was tainted by the comments, and we have

13 no reason to believe that any particular tainted juror would be revealed by the full

14 record. See State v. Gardner, 2003-NMCA-107, ¶ 16, 134 N.M. 294, 76 P.3d 47

15 (“Defendant cannot prevail on appeal unless he demonstrates that the jurors finally

16 selected were biased or prejudiced.”).

17   {4}   In Gardner, the prosecution selected a jury based on venire questions that the

18 defendant believed pre-qualified the jury pool to accept the State’s complete theory

19 of the case. See id. ¶ 15. This Court in Gardner held that there is no abuse of


                                              3
 1 discretion in permitting this jury to serve where the defendant could not prove

 2 prejudice on the appellate record. See id. ¶¶ 16-17. In the current case, although

 3 Defendant has presented facts in response to our notice that may create a greater

 4 potential for prejudice, Defendant nevertheless “does not direct us to anything in the

 5 record suggesting that the jurors ultimately impaneled were biased or motivated by

 6 partiality.” Id. ¶ 17. There is no indication that Defendant sought and was prevented

 7 from questioning the entire venire, nor that he obtained any sworn statements from the

 8 impaneled jury indicating that they were motivated by partiality based on the

 9 comments made in the hallway.

10   {5}   Under the circumstances, it appears to us that Defendant must seek some form

11 of post-conviction remedy that would permit him to develop a record to support his

12 claim of a mistrial. See, e.g., State v. Crocco, 2014-NMSC-016, ¶ 13, 327 P.3d 1068

13 (stating that where the error on appeal is premised upon facts that were not sufficiently

14 developed in the trial record, the claim of error should “be addressed in a

15 post-conviction habeas corpus proceeding, which may call for a new evidentiary

16 hearing to develop facts beyond the record, see Rule 5-802(E)(3) NMRA (allowing

17 a court to hold evidentiary hearings in habeas corpus proceedings), rather than on

18 direct appeal of a conviction as in the case before us”).

19   {6}   For the reasons stated above and in relevant portions of our notice, we affirm.


                                               4
1   {7}   IT IS SO ORDERED.


2                                        ________________________________
3                                        JAMES J. WECHSLER, Judge


4 WE CONCUR:


5 ________________________________
6 MICHAEL E. VIGIL, Chief Judge


7 ________________________________
8 J. MILES HANISEE, Judge




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