 1   This decision was not selected for publication in the New Mexico Reports. Please see Rule 12-405
 2   NMRA for restrictions on the citation of unpublished decisions. Please also note that this
 3   electronic decision may contain computer-generated errors or other deviations from the official
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 5         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 6 STATE OF NEW MEXICO,

 7          Plaintiff-Appellee,

 8 v.                                                                   NO. 31,607

 9 PHILLIP JAMES BUSEY,

10          Defendant-Appellant.


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


13 Jacqueline Cooper, Chief Public Defender
14 Karl Erich Martell, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17 Gary K. King, Attorney General
18 Andrew S. Montgomery, Assistant Attorney General
19 Santa Fe, NM

20 for Appellee


21                                           DECISION
 1 BOSSON, Justice.

 2         Following a jury trial, Defendant Phillip Busey was convicted of one count

 3 of first-degree murder, NMSA 1978, § 30-2-1(A) (1994), two counts of criminal

 4 sexual penetration resulting in great bodily harm, NMSA 1978, § 30-9-11(D)

 5 (2009), one count of kidnapping, NMSA 1978, § 30-4-1 (2003), one count of

 6 aggravated burglary, NMSA 1978, § 30-16-4 (1963), and one count of armed

 7 robbery, NMSA 1978, § 30-16-2 (1973).

 8         Defendant appeals his convictions on the following grounds: (1) the

 9 district court violated the parties’ stipulation when admitting evidence that sperm

10 was present on the victim's body; (2) the district court abused its discretion in

11 denying Defendant's for-cause challenges of prospective jurors; (3) the district

12 court erred in refusing to grant a mistrial when a prospective juror announced that

13 he knew Defendant from prison; (4) the district court erred in denying

14 Defendant's theory-of-the-case jury instruction; (5) the district court violated

15 Defendant's right to a fair trial by permitting the handcuffing of Defendant before

16 the jury had completed deliberating; (6) Defendant's multiple convictions

17 constitute double jeopardy; and (7) cumulative error. We review Defendant's

18 appeal pursuant to Article VI, Section 2 of the New Mexico Constitution and


                                              2
 1 Rule 12-102(A)(1) NMRA. See State v. Trujillo, 2002-NMSC-005, ¶ 8, 131

 2 N.M. 709, 42 P.3d 814 (“Our mandatory appellate jurisdiction is constitutional

 3 and is limited to appeals from a judgment of the district court imposing a

 4 sentence of death or life imprisonment.” (internal quotation marks and citation

 5 omitted)). We affirm.

 6 BACKGROUND

 7         On January 19, 2005, police were dispatched to an Albuquerque residence

 8 to investigate a report of screaming. Upon arrival, the officers discovered blood

 9 outside the home and an unconscious woman, Kathryn Hauser (“Victim”), in the

10 doorway. Victim was unclothed, surrounded by blood, breathing unnaturally,

11 and the back of her head was “mushed up.” Victim was rushed to the hospital,

12 where she died. The medical investigator determined that blunt force trauma to

13 the head was the cause of death, and that Victim had been sexually assaulted.

14         Defendant was arrested after a database search in which his DNA matched

15 that found on Victim’s body. Later tests also revealed Victim’s DNA on

16 Defendant’s pants. A jury convicted Defendant of one count of willful,

17 deliberate first-degree murder and five counts of first-degree felony murder under

18 theories of criminal sexual penetration (vaginal), criminal sexual penetration


                                            3
 1 (anal), kidnapping, aggravated burglary, and armed robbery. Defendant was also

 2 convicted of the predicate felonies of criminal sexual penetration (vaginal),

 3 criminal sexual penetration (anal), kidnaping, aggravated burglary, and armed

 4 robbery.

 5 THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN
 6 ADMITTING EVIDENCE THAT SPERM WAS PRESENT ON THE
 7 VICTIM’S BODY

 8         Before trial, Defendant and the State disputed the admissibility of DNA

 9 samples. Defendant claimed that the “composite profiling method” used to

10 identify certain DNA samples was not reliable. The district court had the same

11 concerns and ordered the evidence, dependant upon the composite profiling

12 method, be suppressed. A few days later both parties signed a stipulation, in

13 accordance with the district court’s order, as to the admissibility of evidence,

14 which reads in part:

15               Pursuant to the Court’s Memorandum Opinion entered on July
16         17, 2008 excluding “all evidence associated with expert testimony
17         regarding the State’s expert analysis using the “composite profiling
18         method...”, the parties also stipulate that evidentiary items FT-Q3
19         (D1); Q1 (D1); Q55-1 (D2); and, 54-2 (D2) are properly excluded
20         from evidence at trial.

21 The four “evidentiary items” listed in the stipulation as “properly excluded from

22 evidence” refer to the Victim’s anal and vaginal swabs, along with two swabs

                                             4
 1 taken from Defendant’s pants.

 2        At trial, the State sought to introduce evidence that sperm was present on

 3 the anal and vaginal swabs taken from Victim without identifying the source of

 4 that sperm. Relying on the stipulation, Defendant objected. After hearing

 5 argument from the parties, the district court permitted the State to introduce

 6 evidence of sperm, although the court barred the State from identifying

 7 Defendant as the source, as previously stipulated, due to the unreliability of the

 8 “composite profil[ing] method” of DNA analysis. The presence of sperm, even

 9 unidentified sperm, in the swabs from Victim’s body became important, because

10 at trial Defendant argued to the jury that Victim’s estranged husband had killed

11 her and not Defendant. Victim’s estranged husband, however, had previously

12 had a vasectomy and was no longer capable of producing semen containing

13 sperm. Thus, any evidence of sperm in Victim’s body would undermine

14 Defendant’s theory of shifting blame to the estranged husband.

15        On appeal, Defendant argues that the stipulation precluded the State from

16 eliciting any evidence relating to the sperm, even if such evidence did not

17 identify Defendant as the source. The State disagrees, arguing that the stipulation

18 precluded only the identification of Defendant’s DNA in the sperm, not the mere


                                             5
 1 presence of sperm in Victim’s body. Defendant asserts that the district court

 2 made no such distinction in its order, which excluded “all evidence associated

 3 with expert testimony regarding the State’s expert analysis using the ‘composite

 4 profiling method.’”

 5         The standard of review for the admission of evidence is an abuse of

 6 discretion. An abuse of discretion “occurs when the court’s ruling is clearly

 7 against the logic and effect of the facts and circumstances of the case.” State v.

 8 Sena, 2008-NMSC-053, ¶ 12, 144 N.M. 821, 192 P.3d 1198 (internal quotation

 9 marks and citation omitted). This Court stated in In re Quantius’ Will that

10 “stipulations should receive a fair and liberal construction, in harmony with the

11 apparent intention of the parties and the spirit of justice, and in the furtherance of

12 fair trials upon the merits, rather than a narrow and technical one calculated to

13 defeat the purposes of their execution.” 58 N.M. 807, 821, 277 P.2d 306, 315

14 (1954) (internal quotation marks and citations omitted).

15         Despite the seemingly broad language in the stipulation, the district court,

16 as the author of the suppression order, reasonably interpreted the scope of its

17 ruling and the stipulation to the effect that it was intended to exclude DNA

18 evidence subject to the composite method and no more. Defendant confirmed as


                                              6
 1 much when the parties debated the issue at trial. Because the admitted evidence

 2 did not identify Defendant as the source of the sperm, we do not find that the

 3 district court abused its discretion.

 4 THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
 5 DENYING DEFENDANT’S CHALLENGES OF PROSPECTIVE JURORS

 6         During jury selection, Defendant requested that three prospective jurors be

 7 excused for cause. The district court denied Defendant’s request. Defendant

 8 then excised his peremptory strikes with respect to those jurors. Defendant

 9 argues that the district court erred in denying his request.

10         The standard of review for juror challenges is an abuse of discretion. State

11 v. Clark, 1999-NMSC-035, ¶ 5, 128 N.M. 119, 990 P.2d 793. As previously

12 noted, Defendant exercised peremptory challenges with respect to all three

13 prospective jurors. Defendant proceeded to trial without exhausting his available

14 peremptory challenges and made no showing on appeal that the denial of his for-

15 cause challenges had any measurable effect on the composition of the jury that

16 sat in judgment of him. See State v. Smith, 92 N.M. 533, 540-41, 591 P.2d 664,

17 671-72 (1979). Accordingly, Defendant has failed to demonstrate any prejudice

18 from the district court’s action.

19 THE DISTRICT COURT DID NOT ERR IN DENYING DEFENDANT’S

                                             7
 1 MOTION FOR MISTRIAL
 2
 3    While on a lunch break during voir dire, a prospective juror stated to other

 4 prospective jurors that he recognized Defendant as a former prisoner. The

 5 prospective juror had not acknowledged knowing Defendant when the court had

 6 previously questioned him during voir dire. When Defendant became aware of

 7 these comments, he moved for a mistrial because the court had previously ruled

 8 that Defendant’s criminal record would not be admitted at trial. The court

 9 dismissed the prospective juror who had commented on Defendant’s prison term,

10 but denied the motion for mistrial.

11        The court took considerable precautionary measures. The court brought

12 the remaining prospective jurors back into court. Then, without revealing what

13 the dismissed prospective juror had actually said, the court asked each remaining

14 panel member if they had heard any comments made by the dismissed

15 prospective juror. The court identified two prospective jurors who had overheard

16 the comments, and the court proceeded to question these individuals outside the

17 presence of the remaining jury panel. These two prospective jurors were later

18 dismissed. The court brought the jury panel back into court and again asked if

19 anyone had heard any comments. Finally, the court instructed the jury panel that


                                            8
 1 if anyone were to later remember overhearing any comments, they should

 2 immediately inform the court. On appeal Defendant now claims that the jury

 3 panel was prejudiced, and that a new panel should have been selected.

 4        The standard of review for denying a motion for mistrial is an abuse of

 5 discretion. See State v. Fry, 2006-NMSC-001, ¶ 52, 138 N.M. 700, 126 P.3d

 6 516. We will not reverse the lower court without a manifest error in the exercise

 7 of its discretion. See State v. Garcia, 2005-NMSC-038, ¶ 7, 138 N.M. 659, 125

 8 P.3d 638.

 9        Based on the record before us, it appears that the remaining members of

10 Defendant’s jury were not exposed to the prejudicial comments made by one

11 prospective juror. By removing the offending prospective juror and two other

12 potentially contaminated prospective jurors, the court took appropriate action

13 under the circumstances. The district court did not abuse its discretion in denying

14 Defendant’s motion for a mistrial.

15 DEFENDANT’S NON-UNIFORM JURY INSTRUCTION WAS
16 PROPERLY REJECTED

17        During trial, Defendant made reference to his understanding that at one

18 point in time Victim’s estranged husband had been a potential suspect in Victim’s

19 murder. Defendant also called witnesses to testify that the estranged husband was

                                            9
 1 violent and possessed a temper. During closing argument, Defendant argued that

 2 Victim’s estranged husband had both motive and an opportunity to commit the

 3 charged crimes.

 4         At the close of the evidence, Defendant offered a non-uniform jury

 5 instruction based on his theory that someone other than Defendant had committed

 6 the charged crimes. Defendant’s proffered instruction read as follows:

 7                You have heard evidence that a person other than the
 8         defendant committed the offenses with which the defendant is
 9         charged. The defendant is not required to prove the other person’s
10         guilt. It is the prosecution that has the burden of proving the
11         defendant guilty beyond a reasonable doubt. Evidence that another
12         person committed the charged offenses may by itself raise a
13         reasonable doubt as to the defendant’s guilt. However, its weight
14         and significance, if any, are matters for your determination. If after
15         considering all of the evidence, including any evidence that another
16         person committed the offenses, you have a reasonable doubt that the
17         defendant committed the offenses, you must find the defendant not
18         guilty.

19         The district court denied Defendant’s requested instruction and instead

20 provided the jury with standard instructions culled from New Mexico’s Uniform

21 Jury Instructions for Criminal Cases. Defendant now argues that the exclusion of

22 his non-uniform instruction denied him a fair trial.

23         The district court’s rejection of a jury instruction tendered by a criminal

24 defendant is reviewed de novo. See State v. Ellis, 2008-NMSC-032, ¶ 14, 144

                                             10
 1 N.M. 253, 186 P.3d 245. We have previously stated that “‘published uniform

 2 jury instructions must be used unless under the facts or circumstances of the

 3 particular case they are erroneous or otherwise improper, and the district court

 4 states its reasons for refusing to use them.’” Benavidez v. City of Gallup,

 5 2007-NMSC-026, ¶ 19, 141 N.M. 808, 161 P.3d 853 (quoting First Nat’l Bank

 6 in Albuquerque v. Sanchez, 112 N.M. 317, 322, 815 P.2d 613, 618 (1991)).

 7        After reviewing the record at trial, we believe that the circumstances of

 8 Defendant’s case did not justify a departure from our uniform jury instructions.

 9 After rejecting Defendant’s non-uniform instruction, the district court provided

10 the jury with UJI 14-5060 NMRA, entitled “Presumption of innocence;

11 reasonable doubt; burden of proof.” That instruction reads as follows,

12               The law presumes the defendant to be innocent unless and
13        until you are satisfied beyond a reasonable doubt of his guilt.
14               The burden is always on the state to prove guilt beyond a
15        reasonable doubt. It is not required that the state prove guilt beyond
16        all possible doubt. The test is one of reasonable doubt. A reasonable
17        doubt is a doubt based upon reason and common sense -- the kind of
18        doubt that would make a reasonable person hesitate to act in the
19        graver and more important affairs of life.

20 Id.

21        We note that Defendant’s rejected instruction largely follows the legal

22 standard set forth in UJI 14-5060, particularly the presumption of innocence and

                                            11
 1 the burden of proof on the state in a criminal case. Furthermore, Defendant does

 2 not argue that UJI 14-5060's rendition of the law is somehow erroneous or

 3 incomplete.         Any substantive difference between Defendant’s non-uniform

 4 instruction and UJI 14-5060 derives from Defendant’s instruction asking the

 5 district court to vouch for the existence of exculpatory evidence: “You have

 6 heard evidence that a person other than the defendant committed the offenses

 7 with which defendant is charged.” That supposed “evidence” is that a third party,

 8 most likely Victim’s estranged husband, committed the charged crimes. Surely,

 9 Defendant had a theory to that effect, but was it based upon “evidence” admitted

10 at trial?

11        While Defendant alluded to suspicions that Victim’s estranged husband

12 might have killed her, the record shows that Defendant did not offer any evidence

13 to support his suspicions, only unsubstantiated speculation. Defendant was free

14 to argue to the jury, as he did, that someone else may have committed the crimes

15 and that there was reasonable doubt as to Defendant’s guilt. Defendant was not

16 entitled, however, to a redundant and argumentative jury instruction that was

17 imbued with judicial authority. Defendant was not entitled to have the court

18 vouch for his theory, or if evidence of that theory existed, where none was


                                           12
 1 apparent. Accordingly, the district court correctly rejected Defendant’s tendered

 2 jury instruction in favor of our uniform instructions.

 3 HANDCUFFING DEFENDANT DID NOT WARRANT A MISTRIAL

 4         While the verdict was read, Defendant was placed in restraints.

 5 Specifically, a security officer handcuffed Defendant after the jury foreperson

 6 read the first verdict, finding him guilty of felony murder, but before the rest of

 7 the verdict was read. Defendant’s counsel immediately brought the officer’s

 8 actions to the attention of the court. In response, the court ordered the officer to

 9 step back. However, the court did not ask the officer to remove the handcuffs.

10 The foreperson of the jury then finished reading the rest of the verdict which

11 included guilty verdicts for the remaining four felony-murder charges. After the

12 foreperson finished reading the felony-murder verdicts, it was discovered that the

13 jury had not completed the verdict forms as to Count 1 (Willful and Deliberate

14 Murder), Count 2 and Count 3 (Criminal Sexual Penetration), Count 4

15 (Kidnapping), Count 5 (Aggravated Burglary), and Count 6 (Armed robbery).

16         Defendant moved for a mistrial based upon his objection to the

17 handcuffing because it created “an atmosphere of unfairness and extreme

18 prejudice.” Defendant argued that the handcuffing would “affect the rest of [the


                                             13
 1 jury’s] deliberations, and . . . the polling of the jury.” The district court denied

 2 the motion for a mistrial. The court then ordered the jury back to the jury room

 3 to complete the verdict forms.

 4         Once the jury left the courtroom, the district court ordered the handcuffs

 5 removed. The jury returned with the verdict forms completed and read the

 6 remaining verdicts. These verdicts included another guilty verdict as to count 1

 7 (Willful and Deliberate Murder), and guilty verdicts as Count 2 and Count 3

 8 (Criminal Sexual Penetration), Count 4 (Kidnapping), Count 5 (Aggravated

 9 Burglary), and Count 6 (Armed Robbery). Felony murder, the verdict announced

10 at the first reading, had been listed as an alternative to willful and deliberate

11 murder. The State brought to the court’s attention that the two special verdict

12 forms for kidnapping were not signed. The jury was sent back a second time to

13 complete the kidnapping special verdict forms. The jury returned with a “yes”

14 verdict as to the kidnapping special verdict forms. The jury was then polled as to

15 each verdict. Each jury member affirmed his or her support for the verdicts.

16         Defendant argues that the handcuffing was prejudicial because it

17 undermined his presumption of innocence, thereby warranting a mistrial. The

18 standard of review for denying a motion for mistrial is abuse of discretion. See


                                              14
 1 Fry, 2006-NMSC-001, ¶ 52.

 2         With very few exceptions, the use of visible restraint devices is not

 3 allowed in front of the jury because the use of such restraint devices undermines

 4 the accused’s presumption of innocence. See State v. Johnson, 2010-NMSC-016,

 5 ¶ 26, 148 N.M. 50, 229 P.3d 523. The underlying reason for prohibiting the use

 6 of visible restraint devices is to avoid the possibility of jury bias. Id. In the

 7 exceptional case, visible restraint devices may sometimes be appropriate in the

 8 interest of security and preventing escape. Id.

 9         While the timing of the handcuffing in this case was admittedly unusual, it

10 could not have jeopardized Defendant’s presumption of innocence. Defendant

11 had already lost his presumption of innocence before the handcuffing even

12 occurred, when the jury first convicted him of first-degree felony murder. That

13 verdict was read aloud, and only then did the officers put Defendant in restraints.

14 Once convicted of first-degree felony murder, Defendant was found guilty of

15 every element of that crime. See State v. Frazier, 2007-NMSC-032, ¶¶ 25-26,

16 142 N.M. 120, 164 P.3d 1. The jury, therefore, could not possibly have

17 presumed Defendant innocent of the predicate felonies—criminal sexual

18 penetration, kidnapping, aggravated burglary, and armed robbery—while at the


                                              15
 1 same time convicting him of felony murder based on those same underlying

 2 offenses. Accordingly, the handcuffing caused Defendant no prejudice given the

 3 particular context of this case, and the court did not abuse its discretion in

 4 denying Defendant’s motion for mistrial.

 5         In fact, the district court handled the situation commendably under the

 6 circumstances. As soon as the court became aware of the handcuffing, it

 7 instructed the officers to step back. By not immediately ordering the handcuffs

 8 removed, the court avoided drawing more attention to the situation. Likewise,

 9 the court waited until the jury was out of the courtroom before ordering the

10 handcuffs removed. Perhaps a more suitable course would have been to send the

11 jury out of the courtroom immediately before allowing the reading to continue,

12 but under the circumstances the court was able to minimize the possibility of

13 prejudice. We also emphasize that within the courtroom it is the trial judge, and

14 not law enforcement, who has the final say regarding the use of restraint devices,

15 including handcuffs.

16 DEFENDANT’S CONVICTIONS DO NOT VIOLATE DOUBLE

17 JEOPARDY

18         The jury in this case returned guilty verdicts for one count of willful and


                                             16
 1 deliberate first-degree murder, five counts of first-degree felony murder, and

 2 every predicate felony with which Defendant was charged. To avoid double

 3 jeopardy problems, the district court vacated all five felony-murder convictions

 4 and imposed a sentence on the remaining convictions of willful and deliberate

 5 first-degree murder, two counts of criminal sexual penetration (vaginal and anal),

 6 kidnapping, aggravated burglary, and armed robbery. Defendant now argues that

 7 his convictions violate double-jeopardy principles.

 8         Defendant’s argument runs contrary to New Mexico’s double-jeopardy

 9 jurisprudence, particularly our holding in State v. Saiz, 2008-NMSC-048, ¶¶

10 24-35, 144 N.M. 663, 191 P.3d 521, abrogated by State v. Belanger,

11 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. In Saiz, we permitted the district

12 court to vacate a conviction for felony murder in lieu of a conviction on a single

13 count of willful and deliberate first-degree murder, along with the predicate

14 felony of kidnapping. Id. As in Saiz, the district court here properly vacated all

15 five of Defendant’s convictions for felony murder and imposed conviction on

16 Defendant for the one count of first-degree murder, based on a willful and

17 deliberate theory, along with the five predicate felonies. Like Saiz, no double-

18 jeopardy violation occurred on these facts.


                                            17
1 CUMULATIVE ERROR

2        Because we reject Defendant’s arguments, finding no error, the cumulative

3 error doctrine does not apply. See State v. Salas, 2010-NMSC-028, ¶ 40, 148

4 N.M. 313, 236 P.3d 32.




                                         18
1 CONCLUSION

2       For the reasons stated herein, we affirm Defendant’s convictions.

3       IT IS SO ORDERED.


4
5                                             RICHARD C. BOSSON, Justice


6 WE CONCUR:


7
8 CHARLES W. DANIELS, Chief Justice


 9
10 PATRICIO M. SERNA, Justice


11
12 PETRA JIMENEZ MAES, Justice


13
14 EDWARD L. CHÁVEZ, Justice




                                         19
