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


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                    NO. 30,467

10 JAMES SNEED, JR.,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
13 Stephen K. Quinn, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh Dangler, Chief Public Defender
18 B. Douglas Wood III, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant



21                                 MEMORANDUM OPINION
 1 CASTILLO, Judge.

 2        Defendant appeals from the district court’s judgment and sentence, convicting

 3 him pursuant to a jury trial, for trafficking cocaine and possession of marijuana. We

 4 issued 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 the district court erred.

 7 Accordingly, we affirm.

 8        Defendant raises five issues on appeal. He contends that the district court erred:

 9 (1) by not requiring the State to disclose the identity of the confidential informant, (2)

10 by permitting the State to play all five recordings of Defendant’s phone calls, (3) by

11 requiring the defense’s key witness to testify while shackled and dressed in prison

12 clothing, (4) by refusing to grant Defendant a mistrial due to the prosecutor’s

13 comments in opening statements, and (5) by refusing to grant a mistrial for the

14 fundamental and cumulative error Defendant alleges.

15 Confidential Informant

16        Defendant claims that his confrontation rights were violated when the district

17 court refused to require disclosure of the identity of the confidential informant. [DS

18 7; MIO 4-6] Our notice observed that Defendant did not describe any facts indicating

19 why he should have been permitted to confront the confidential informant (CI) at the



                                               2
 1 suppression hearing, what the State argued below, and the grounds upon which the

 2 district court ruled.

 3        Our notice also explained the following. Our review of the record indicated that

 4 the district court ruled that the contents of the affidavits state facts showing the

 5 information provided was reliable and established probable cause to search the

 6 apartment. [RP 85] Further, the district court ruled there is no evidence that the CI

 7 was present during the searches or that his or her testimony would be helpful to

 8 Defendant or that disclosure of the identity of the CI would be necessary for a fair

 9 determination of his guilt or innocence. [RP 85, 255]

10        We noted that Rule 11-510(C)(2) NMRA makes an exception to the state’s

11 privilege to refuse to disclose the identity of a confidential informant where it appears

12 that the “informer will be able to give testimony that is relevant and helpful to the

13 defense of an accused, or is necessary to a fair determination of the issue of guilt or

14 innocence.” In determining whether nondisclosure of an informant’s identity was

15 proper, the district court should make a case-by-case decision, depending “on the

16 particular circumstances of each case, taking into consideration the crime charged, the

17 possible defenses, the possible significance of the informer’s testimony, and other

18 relevant factors.” State v. Campos, 113 N.M. 421, 424, 827 P.2d 136, 139 (Ct. App.

19 1991) (internal quotation marks and citation omitted), reversed on other grounds by



                                               3
 1 117 N.M. 155, 870 P.2d 117 (1994). “On appeal, we review the trial court’s decision

 2 denying disclosure of the identity of a confidential informant for an abuse of

 3 discretion.” Id.

 4        In Campos, we found no abuse of discretion by the district court in denying a

 5 motion to conceal the identity of a CI when the informant was not present during the

 6 search of the premises or when the defendant was stopped and arrested. Id. In

 7 Campos, the facts showed that the “informant was not a witness to any sale or [the]

 8 defendant’s possession of the controlled substance found at the time of his arrest” and

 9 that “the confidential informant conveyed information that defendant had been

10 distributing controlled substances and that he would be engaging in illicit drug activity

11 on the morning that he was apprehended.” Id. We decided that the trial court,

12 therefore, “could properly conclude that the informant did not possess information

13 relevant to the preparation or presentation of [the defendant’s] defense, or which

14 would exculpate [the] defendant from the charge against him.” Id. at 425, 827 P.2d

15 at 140.

16        Unpersuaded that disclosure was necessary in the current case under our rules

17 and case law, we stated in our notice that Defendant, similarly, was not charged with

18 a crime based upon the transaction witnessed by the CI. Rather, the evidence of the

19 crime was found during the execution of the search warrant. [RP 69] It appeared that



                                               4
 1 at various times during the month before the search and arrest of Defendant, the CI

 2 observed Defendant either selling or possessing large amounts of cocaine from his

 3 residence. [DS 3; RP 60, 225] The record gave us no indication that the CI would “be

 4 able to give testimony that [would be] relevant and helpful to the defense of [the]

 5 accused, or [would be] necessary to a fair determination of the issue of guilt or

 6 innocence.” Rule 11-510(C)(2). In our notice, we proposed to affirm because without

 7 more specific argument and information from Defendant, we saw no abuse of

 8 discretion in the nondisclosure of the CI’s identity.

 9        In response to our notice, Defendant argues that the disclosure of the CI’s

10 identity was necessary because the information provided by the CI led the police to

11 their suspicion that Defendant was involved in selling drugs and contributed to the

12 basis for the search warrant. [MIO 4-5] We fail to see how this differs from

13 information provided by any informant or why this informant’s identity should be

14 excepted from the prosecution’s privilege. Defendant also contends that the informant

15 could have provided relevant testimony that might have aided Defendant by verifying

16 his defense that Ms. Nivens was responsible for the drugs in the residence. [MIO 5]

17 Defendant gives us no indication why the informant’s testimony might support his

18 defense beyond mere speculation and assertion. Under these circumstances, we

19 cannot say that the district court abused its discretion by protecting the State’s



                                              5
 1 privilege. See Rule 11-510(C)(2). Therefore, we affirm this decision.

 2 The Recordings

 3        In his docketing statement, Defendant claimed that the district court erred by

 4 permitting the State to play all five taped conversations to the jury without first

 5 making the tapes available to Defendant and by permitting the State to play as many

 6 tapes as it wanted. [DS 7; MIO 6-7] Defendant states that the defense was provided

 7 with actual copies of the tapes of three telephone calls Defendant made from prison,

 8 but not the other two. [MIO 6]

 9        The district court ruled that Defendant impliedly consented to the monitoring

10 of his phone calls. [DS 4; RP 253] As we stated in our notice, the record indicates

11 that testimony was given that every inmate receives a handbook advising that phone

12 calls are recorded. [RP 168] Also, testimony indicated that there is a warning on the

13 phone stating that this phone call is being recorded and may be monitored at any time,

14 and that when a phone call is answered it states who is calling from the Curry County

15 Detention Center. [Id.]

16        The record suggests that the State gave Defendant notice of the State’s recorded

17 phone calls, that Defendant knew about the conversations, that the State did not know

18 Defendant did not have all the tapes, and that Defendant did not request all the

19 recordings the State said that it had on file. [RP 169] The record also indicates that



                                              6
 1 the State disclosed the general content of the recorded statements and discussed it at

 2 length at a motions hearing where both the State and the defense questioned

 3 Defendant about the phone calls. [RP 208] Defendant gives us no indication that the

 4 State failed to disclose the existence of the tapes and/or failed to make the tapes

 5 available to Defendant, pursuant to the requirements of Rule 5-501(A) NMRA. On

 6 these facts, we see no reversible error.

 7        Also in his response to our notice, Defendant contends that the district court

 8 should have excluded the taped conversations pursuant to the Rule 11-403 NMRA

 9 balancing test, because the conversations involved future behavior and therefore were

10 of little probative value.    [MIO 7]      Without more information, we disagree.

11 Presuming the conversations discussed future drug dealing, they would indicate a

12 pattern of behavior that is highly relevant. Defendant’s generalized allegations of

13 prejudice are not sufficient to show reversible error. See In re Ernesto M., Jr., 1996-

14 NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a

15 showing of prejudice.”); State v. Fernandez, 117 N.M. 673, 677, 875 P.2d 1104, 1108

16 (Ct. App. 1994) (“In the absence of prejudice, there is no reversible error.”).

17 Shackled Defense Witness

18        Defendant argues that the district court violated his rights to equal protection

19 and a fair trial by enforcing the policy that inmates must testify while shackled and



                                              7
 1 dressed in prison uniform, and requiring Ms. Nivens, a key defense witness, to testify

 2 in that manner. [MIO 8-10] Defendant refers this Court to federal case law

 3 prohibiting defendants from being compelled to stand trial before a jury in prison

 4 clothes. [MIO 8-10] We see a material distinction between requiring a defendant to

 5 stand trial and compelling an inmate witness to testify in prison clothing.

 6 Furthermore, we do not see how Defendant was prejudiced. The defense theory was

 7 that Ms. Nivens was responsible for having the drugs in the residence; therefore,

 8 Defendant already had implicated its key witness in criminal behavior. We do not see

 9 how Ms. Nivens’ appearance at trial would significantly blemish the jury’s view of

10 her character in a manner that rises to a violation of Defendant’s constitutional rights.

11 Her appearance as an inmate could support the defense’s theory, not materially

12 damage it. For these reasons, we are not persuaded that Defendant has demonstrated

13 reversible error.

14 Prosecutor’s Comment in Opening Statement

15        Defendant contends that the district court erred by denying his motion for a

16 mistrial when the State’s opening argument indicated that it had information that

17 Defendant was involved in past drug sales. [DS 7; MIO 11-14]

18        “If the trial judge believes that a prosecutor’s impropriety is substantially likely

19 to cause a miscarriage of justice, the judge should grant a defendant’s motion for a



                                               8
 1 mistrial. Otherwise, granting a mistrial motion is inappropriate.” State v. Reynolds,

 2 111 N.M. 263, 266, 804 P.2d 1082, 1085 (Ct. App. 1990). A ruling on a motion for

 3 a mistrial is addressed to the sound discretion of the trial court and will not be

 4 disturbed absent a showing of abuse of discretion. See State v. McDonald, 1998-

 5 NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752. An abuse of discretion occurs when

 6 the ruling is clearly against the logic and effect of the facts and circumstances of the

 7 case. We cannot say the trial court abused its discretion by its ruling unless we can

 8 characterize it as clearly untenable or not justified by reason. State v. Rojo, 1999-

 9 NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (filed 1998) (internal quotation marks

10 and citations omitted).

11        As we observed in our notice, it appeared that the State presented evidence that

12 officers were investigating Defendant, that they had a search warrant, that they found

13 drugs, and that the amount of drugs was “way more” than what could be for personal

14 use. [RP 164-71] This testimony would support the conclusion that Defendant was

15 indeed selling drugs. [RP 164-171] Because there was evidence presented that

16 Defendant was selling drugs, we proposed to affirm on the basis that the prosecutor’s

17 statement indicating that law enforcement had information that Defendant was

18 involved in past drug sales did not cause a miscarriage of justice.

19        In response to our notice, Defendant contends that the only evidence of



                                              9
 1 possession with the intent to distribute that was presented to the jury was taken at the

 2 time of the search. [MIO 12] He states that there was no evidence presented at trial

 3 that Defendant was involved in drug dealing in the past. [Id.] We are not persuaded

 4 that the disparity in the factual support for the prosecutor’s comments about past

 5 dealing and the testimony presented that officers had been investigating Defendant,

 6 obtained a warrant, and found drugs is sufficient to warrant a mistrial. Therefore, we

 7 affirm the denial of Defendant’s motion.

 8 Fundamental and Cumulative Error

 9        Lastly, Defendant contends that he was denied a fair trial based on the

10 cumulative effect of irregularities and errors. [DS 7; MIO 14-15] Defendant does not

11 specify what he believes to be fundamental error, thus we address only his allegation

12 of cumulative error.

13        “The doctrine of cumulative error requires reversal when a series of lesser

14 improprieties throughout a trial are found, in aggregate, to be so prejudicial that the

15 defendant was deprived of the constitutional right to a fair trial.” State v. Duffy, 1998-

16 NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, modified on other grounds by State

17 v. Gallegos, 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828. The cumulative

18 error doctrine is strictly applied, and may not be successfully invoked if the record as

19 a whole demonstrates that the defendant received a fair trial. State v. Trujillo, 2002-



                                               10
 1 NMSC-005, ¶ 63, 131 N.M. 709, 42 P.3d 814. When there is no error, “there is no

 2 cumulative error.” State v. Aragon, 1999-NMCA-060, ¶ 19, 127 N.M. 393, 981 P.2d

 3 1211. “We have noted on several occasions that a fair trial is not necessarily a perfect

 4 trial.” State v. Allen, 2000-NMSC-002, ¶ 117, 128 N.M. 482, 994 P.2d 728.

 5        Defendant argues that the district court should have declared a mistrial based

 6 on all the errors he raises in his appeal, together with the fact that the jurors had a

 7 long, nine-hour day, they were hungry, and they quickly returned a guilty verdict.

 8 [MIO 6; MIO 14] Our notice observed that Defendant did not provide this Court with

 9 sufficient context to determine whether the conditions were particularly coercive or

10 oppressive for the jury, whether the jury wanted to leave, whether the jury wanted

11 another time to deliberate, or if the evidence of his guilt was not so overwhelming that

12 it required more deliberations. Also, Defendant did not state what other safeguards

13 he requested short of mistrial. Without more information, we were not persuaded that

14 a possibly tired and hungry jury denied Defendant a fair and impartial trial.

15        In response to our notice, Defendant does not present any new factual or legal

16 argument indicating why the conditions were oppressive to the jury. Because we are

17 neither persuaded that Defendant has established minor errors nor that he was denied

18 a fair trial, “[t]he doctrine of cumulative error is not applicable.” Id.

19        For the reasons discussed in this opinion and in our notice, we affirm the district



                                              11
1 court’s judgment and sentence.

2       IT IS SO ORDERED.



3                                  ___________________________________
4                                  CELIA FOY CASTILLO, Judge

5 WE CONCUR:




6 __________________________________
7 CYNTHIA A. FRY, Chief Judge




8 __________________________________
9 TIMOTHY L. GARCIA, Judge




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