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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMSC-014

Filing Date: May 10, 2012

Docket No. 31,973

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

GRACIELA GUERRA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

James Waylon Counts, District Judge

Robert E. Tangora, L.L.C.

Robert E. Tangora

Santa Fe, NM

for Appellant

Gary K. King, Attorney General

Nicole Beder, Assistant Attorney General

Santa Fe, NM

for Appellee

OPINION

DANIELS, Justice.

{1} A jury found Defendant Graciela Guerra guilty of first-degree murder for the

stabbing death of her daughter-in-law, Brenda Guerra, in an Alamogordo motel room. The

district court sentenced Defendant to a mandatory term of life imprisonment, giving this

Court exclusive jurisdiction to hear her direct appeal. See N.M. Const. art. VI, § 2 (“Appeals

from a judgment of the district court imposing a sentence of death or life imprisonment shall

be taken directly to the supreme court.”); accord Rule 12-102(A)(1) NMRA.
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{2} We address Defendant’s arguments that the district court: (1) erred by denying

Defendant’s self-defense instruction; (2) abused its discretion when it excluded, for lack of

notice under Rule 5-602(F) NMRA, expert testimony about Defendant’s incapacity to form

specific intent; (3) abused its discretion when it excluded expert testimony related to whether

the victim’s wounds would have been fatal if treated; (4) abused its discretion when it

excluded letters Defendant wrote while in prison; (5) and abused its discretion when it

denied Defendant’s motion for a new trial. Defendant also makes a claim of cumulative

error. We affirm her conviction.

I. BACKGROUND

{3} Defendant’s son Christian and Christian’s wife, the victim, were going through a

divorce at the time of the killing. Throughout the divorce proceeding, Christian and the

victim vacillated about whether to reconcile. On May 13, 2008, Christian and the victim

attended a divorce hearing in Alamogordo. Christian had expected the victim’s attorney to

withdraw from the case at that hearing to allow both parties to proceed in the divorce without

representation, but the victim changed her mind about giving up her lawyer. The couple

argued for much of the afternoon following the hearing.

{4} After the hearing, Christian dropped off the victim at her motel, went to his house,

and told Defendant, who was living with Christian and the children, about what happened

at the hearing. Later in the day, after Christian had dropped off the children at the victim’s

motel, he told Defendant that he and the victim had agreed to reconcile and that Defendant

could either stay and help them with the children or move out. Defendant replied to

Christian that she would “fix it for [him].” Christian indicated that he did not want

Defendant talking to the victim; he wanted Defendant to stay home and “cool down.” After

this exchange, Christian drove to the victim’s motel.

{5} Defendant followed Christian to the motel. Christian saw Defendant in her car

behind him and called her cellular phone to tell her not to follow him. Christian eventually

lost sight of Defendant’s car and continued driving to the motel. After Christian entered the

room and while he was seated on the bed, Defendant knocked on the door. The victim

opened the door and asked, in Spanish, “what is that doing here?” A hair-pulling fight then

broke out between the two women.

{6} Christian rose from the bed to break up the fight but stopped when he saw that

Defendant was armed with a large knife and that the victim was falling to the floor, bleeding.

Christian grabbed his older son, covered the boy’s eyes, and ran to put the child in his car.

When he returned to the room to get his younger son, the door was locked. Christian could

hear Defendant saying “bad” things in Spanish and could hear the victim screaming “God,

God, God!” Eventually Defendant, covered in blood and holding a knife, opened the door

and told Christian “take [your] kids, [you’re] free.” Christian took his younger son, drove

home with the children, and called 911.
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{7} A motel guest saw Defendant enter the victim’s room and saw Christian leave with

the children about ten minutes later. The witness was able to see Defendant inside the room

with blood on her hands and the victim lying on the floor. As the witness entered the room,

Defendant was shouting obscenities and kicking the victim’s body. Defendant told the

witness not to call the police. The witness went to the motel office, asked an employee to

call the police, and returned to his own room to call the police.

{8} When the police arrived, they found Defendant standing in the open doorway of the

victim’s room, covered in blood. The police took Defendant into custody. They found the

victim lying on the floor and exhibiting no signs of life. While they investigated the scene,

Defendant repeatedly said in Spanish, “I killed her!” On the way to the police station,

Defendant made a number of additional volunteered admissions. She said that she told

Christian she intended to kill the victim, but Christian did not believe her. She claimed that

she and the victim “had some words,” that she told Christian to take the children and leave,

that a scuffle ensued, and that she stabbed the victim several times. She told the police that

she was tired of the way the victim treated Christian and the children.

{9} In the motel room, investigators found two knives covered with blood, a kitchen

knife with a bent four-inch blade and a butcher’s knife with a bent seven-inch blade. DNA

analyses confirmed that the blood came from the victim. In the kitchen of Christian’s

residence, where Defendant had been living, investigators found a knife block with one of

the matching steak-knives missing.

{10} An autopsy of the victim revealed forty-one injuries, thirty-one of which were stab

wounds. The knives found at the scene were consistent with these wounds. One of the stab

wounds in the back of the victim’s neck cut her jugular vein. The victim had four stab

wounds in her right back, two of which punctured her right lung. She also had many stab

wounds in her chest, five of which punctured her left lung. The forensic pathologist who

conducted the autopsy testified that the cause of death was multiple stab wounds and the

manner of death was homicide.

{11} The State introduced three letters Defendant wrote while in custody awaiting trial.

In one, Defendant acknowledged attacking the victim. In another, she admitted killing the

victim, whom she described as sick and obsessed, and wrote that on the day of the killing,

she entered the motel room, told Christian to take the children and leave, and “pulled [out]

the knife and . . . did what [she] did.” In a third letter, Defendant indicated she felt no

remorse for what she did, describing the victim as “trash.”

II. DISCUSSION

A. The District Court Properly Refused a Self-Defense Instruction.

{12} Defendant argues that the district court erred in denying her requested self-defense

instruction. Although there appears to have been no evidence that the victim had previously
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threatened Defendant, the defense presented evidence that the victim had a “short temper,”

that the victim once said she would rather see Christian dead than with another woman, and

that the victim once told Christian she could easily buy a gun and shoot him. Defendant

testified that she did not intend to kill the victim when she came to the motel room and only

brought the two knives from her house in case she needed to defend herself. She also

testified that when the hair-pulling fight started, she was afraid the victim would strangle or

hit her, although she acknowledged that she expected Christian would not have allowed the

victim to really harm her. She claimed that she did not know how she came to stab the

victim the first time but admitted that after she first stabbed the victim in the stomach, the

victim let go of Defendant’s hair and asked if they could “talk.” Defendant testified that

upon hearing the victim’s request to “talk,” Defendant lost control of herself. The next thing

Defendant claimed she remembered was kneeling over the victim, her hands covered in

blood.

{13} “The propriety of denying a jury instruction is a mixed question of law and fact that

we review de novo.” State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.2d 438.

The applicable standards have been addressed thoroughly in our case law.

A defendant is not entitled to a self-defense instruction unless it is justified

by sufficient evidence on every element of self-defense. Those elements are

that (1) the defendant was put in fear by an apparent danger of immediate

death or great bodily harm, (2) the killing resulted from that fear, and (3) the

defendant acted reasonably when he or she killed. The first two

requirements, the appearance of immediate danger and actual fear, are

subjective in that they focus on the perception of the defendant at the time of

the incident. By contrast, the third requirement is objective in that it focuses

on the hypothetical behavior of a reasonable person acting under the same

circumstances as the defendant.

State v. Rudolfo, 2008-NMSC-036, ¶ 17, 144 N.M. 305, 187 P.3d 170 (internal quotation

marks and citations omitted). A self-defense instruction is warranted only when the

evidence is “sufficient to allow reasonable minds to differ as to all [three] elements of the

defense.” State v. Lopez, 2000-NMSC-003, ¶ 23, 128 N.M. 410, 993 P.2d 727 (internal

quotation marks and citation omitted).

{14} In determining whether a jury should be permitted to consider the issue of selfdefense, it is essential for both trial and appellate courts to honor the constitutional rights of

the accused to have the jury decide whether the prosecution has proven legal guilt in

accordance with the reasonable doubt and unanimity requirements that are fundamental to

our system of justice. See Rudolfo, 2008-NMSC-036, ¶ 22. The test is not how the judge

would weigh the self-defense evidence as a factfinder; the true test is whether any juror

could be justified in having a reasonable doubt about whether the accused acted in selfdefense. See id. ¶ 27. “For a court to issue a self-defense instruction, there need be only

enough evidence to raise a reasonable doubt in the mind of a juror about whether the
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defendant lawfully acted in self-defense. If any reasonable minds could differ, the

instruction should be given.” State v. Sandoval, 2011-NMSC-022, ¶ 17, 150 N.M. 224, 258

P.3d 1016 (internal quotation marks and citation omitted). If the jury’s role as factfinder is

not respected, the consequences include reversals and retrials. See, e.g., State v. Hill,

2001-NMCA-094, ¶¶ 10-11, 31, 131 N.M. 195, 34 P.3d 139 (reversing a conviction for

battery on a peace officer because whether the defendant was the instigator was a question

that should have been left to the jury); State v. Cooper, 1999-NMCA-159, ¶¶ 18, 24, 128

N.M. 428, 993 P.2d 745 (reversing a conviction because conflicts in a defendant's testimony

regarding his fear of the victim presented “a classic issue for the jury to decide”); State v.

Branchal, 101 N.M. 498, 504, 684 P.2d 1163, 1169 (Ct. App. 1984) (holding that the judge’s

belief that the defendant was “under no threat of imminent harm” did not justify denial of

jury resolution of the contested issue).

{15} In Rudolfo, the defendant shot and killed an occupant of a vehicle driving away from

a house where there had been a violent struggle over a gun. 2008-NMSC-036, ¶¶ 5-6. We

upheld the district court’s rejection of a self-defense instruction because “[n]one of the three

required components of self-defense [were] present.” Id. ¶¶ 18, 26. We reach the same

conclusion in this case. As in Rudolfo, there was no appearance in this case that Defendant

was threatened with death or great bodily harm at the time of the killing. Necessarily, if the

first element is not present, Defendant could not have killed as a result of that threat. And

finally, as in Rudolfo, even viewing the evidence in the light most favorable to the defendant,

the circumstances of this case presented “no basis for the jury to have any doubt that a

reasonable person would have found the [killing] to be unnecessary.” Id. ¶ 26.

{16} The facts of this case are similar to those in Lopez, in which we rejected a

defendant’s claim to a self-defense instruction because the defendant’s act of killing was not

objectively reasonable. 2000-NMSC-003, ¶ 26. In that case, the victim pulled a knife on

the defendant after the defendant told the victim to leave the premises. See id. ¶ 3. In

response, the defendant grabbed a knife from the kitchen and inflicted twenty-one stab

wounds on the victim’s neck and head, seventeen stab wounds on the victim’s hands and

arms, and sixteen stab wounds on his torso. Id. The defendant then crushed the victim’s

skull with a rock. Id. This Court held that the number of stab wounds and the crushing of

the victim’s skull exhibited, as in this case, “conduct fueled by hatred or by rage or other

strong emotion, but not by fear,” and that there was no jury issue as to whether the defendant

killed in fear or acted reasonably in killing. Id. ¶ 26.

{17} Defendant’s act of repeatedly stabbing an unarmed woman who was lying on the

ground and pleading for an opportunity to talk is the kind of attack that no reasoning juror

could doubt was objectively unreasonable. “The law simply does not recognize any right

to an acquittal based on a wholly unreasonable claim of a self-defense justification for taking

the life of another.” Rudolfo, 2008-NMSC-036, ¶ 20; see also State v. Sutphin, 2007-

NMSC-045, ¶ 24, 142 N.M. 191, 164 P.3d 72 (concluding that the defendant’s actions were

not reasonable and did not support a self-defense instruction when he beat an initial attacker

to death after rendering him unconscious). “If at any point Defendant was put in fear by an
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appearance of immediate death or great bodily harm, that fear could not have been present

when the [fatal injuries were inflicted].” State v. Jacob Gonzales, 2007-NMSC-059, ¶ 22,

143 N.M. 25, 172 P.3d 162.

{18} In this case, as in Lopez, Rudolfo, and Jacob Gonzales, the response of the accused

to any potential threat was indisputably unreasonable. Accordingly, we hold that Defendant

was not entitled to a self-defense instruction.

B. The District Court Did Not Abuse Its Discretion in Denying Admission of

Untimely-Noticed Psychologist’s Testimony.

{19} Defendant was indicted on an open count of murder on May 28, 2008, and arraigned

two weeks later. On May 8, 2009, just one month before trial, Defendant filed and gave the

court and the prosecution notice of a trial witness list that included a previously undisclosed

forensic psychologist. At the same time, the defense disclosed the expert’s written report,

dated March 2009 but based on a November 2008 evaluation of Defendant, concluding that

Defendant had the capacity to form specific intent to kill. But when the State was finally

able to interview the expert on June 2, 2009, nine days before trial, the expert told the

prosecutor that he had changed his opinion from what was in the written report and would

testify at trial that because of cultural issues and a diminished capacity to form intent to kill,

Defendant was not able to commit deliberate first-degree murder. When the prosecutor

asked why the expert had not disclosed this opinion in his report, the expert explained that

at the time of the 2008 evaluation and report, the Defendant was claiming her son did the

stabbing, so the expert did not consider Defendant’s ability to form a specific intent to kill

to be important.

{20} The day after interviewing the expert, the State moved to exclude the testimony,

arguing that the defense had not filed a notice in June 2008 that it was raising the defense

of incapacity to form specific intent, as would have been required by Rule 5-602(F) NMRA,

and that it was too late to do so the week before trial. Two days later, Defendant filed her

first and only notice of her intention to present testimony on the lack of specific intent. The

notice indicated that she preserved her argument that disclosure of the expert testimony is

not required in murder cases in which extreme emotion may have played a part. The district

court granted the State’s motion to exclude the expert testimony because (1) the filing of

Defendant’s notice was outside the time limits required by Rule 5-602(F), (2) no good cause

was shown for the noncompliant notice, and (3) the state was unable to prepare for or meet

the expert testimony at such a late stage in the case.

{21} Defendant now argues that the expert was to testify about Defendant’s ability to form

deliberate intent instead of specific intent and that the fair and timely notice provisions of

Rule 5-602(F) apply only to the latter and not to the former. Defendant does not address any

of the New Mexico precedents which have consistently held that deliberate intent to kill is

the specific intent which distinguishes first-degree from second-degree murder. See State

v. Coffin, 1999-NMSC-038, ¶ 25, 128 N.M. 192, 991 P.2d 477 (reaffirming that “the
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Legislature intended to distinguish first degree murder from second degree murder by the

element of a deliberate intent to kill”). And Defendant does not develop her unprecedented

construction of Rule 5-602(F) with any principled analysis. See Headley v. Morgan Mgmt.

Corp., 2005-NMCA-045, ¶15, 137 N.M. 339, 110 P.3d 1076 (explaining that the appellate

court does not review unclear or undeveloped arguments). Defendant also cites no authority

from any jurisdiction supporting her argument, so we may conclude that no such authority

exists. See Lee v. Lee (In re Adoption of Doe), 100 N.M. 764, 765, 676 P.2d 1329, 1330

(1984) (“We assume where arguments in briefs are unsupported by cited authority [that]

counsel . . . was unable to find any supporting authority.”). Finally, Defendant never

articulated or preserved this argument below. See Rule 12-216(A) NMRA (requiring an

appellant to raise an issue below with sufficient specificity to invoke the trial court’s ruling

before the appellate court will address the issue).

{22} Accordingly, we address only Defendant’s arguments that constructive notice to the

prosecution constituted good cause under the rule for dispensing with the formal notice

requirement, because intent is always an element of first-degree murder and because

enlisting “a well-known forensic psychologist gave the State notice that Defendant’s exact

mental state would be in issue at trial.”

{23} A trial court’s decision to admit or exclude evidence for failure to comply with notice

and disclosure requirements is reviewed on appeal for an abuse of discretion. See State v.

Harper, 2011-NMSC-044, ¶¶ 9, 15-16, 150 N.M. 745, 266 P.3d 25 (reviewing for an abuse

of discretion the district court’s exclusion of prosecution witnesses for failure to comply with

witness interview deadlines); McCarty v. State, 107 N.M. 651, 655, 763 P.2d 360, 364

(1988) (reviewing for an abuse of discretion the district court’s exclusion of defense

witnesses for failure to comply with alibi notice deadlines).

{24} Rule 5-602(F) reads,

If the defense intends to call an expert witness on the issue of whether the

defendant was incapable of forming the specific intent required as an element

of the crime charged, notice of such intention shall be given at the time of

arraignment or within twenty (20) days thereafter, unless upon good cause

shown, the court waives the time requirement of this rule.

{25} This rule is clear. Defendant was required to notify the State of her intention to call

an expert on the issue of specific intent either at the time of her arraignment or within twenty

days after her arraignment. Defendant did not provide such notice until a year after her

arraignment and approximately a week before trial, and then only after the State discovered

a planned specific intent defense that was disclosed neither by a Rule 5-602(F) notice nor

by the misleading written report supplied with the defense’s witness disclosure.

{26} Defendant’s novel contention that she should be excused from the Rule 5-602(F)

notice requirements because intent is always an issue in a murder prosecution is inconsistent
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with the very purpose of the rule. While the nature of a defendant’s intent is always at issue

in a homicide case, whether a defendant had the mental capacity to form that intent is not.

This difference is precisely why Rule 5-602(F) is in place—to give notice to the State that

a defendant will be raising a complex psychological issue so that the State may take the steps

necessary to prepare to meet and counter it. Defendant asks us to hold, in essence, that Rule

5-602(F) is meaningless in murder cases. We will not do so.

{27} Defendant’s second argument of good cause for late disclosure is also an argument

of constructive notice. She suggests that because she listed a forensic psychologist as a

possible witness one month before trial, the State should have figured out that Defendant’s

ability to form specific intent would be the subject of the witness’s testimony, excusing

Defendant from filing the specific notice required by Rule 5-602(F).

{28} Although there is no New Mexico case addressing a constructive notice excuse for

failing to comply with Rule 5-602(F) in particular, our Court of Appeals has rejected similar

arguments in applying the counterpart insanity defense notice provisions of Rule 5-602(A)

in State v. Silva, 88 N.M. 631, 631, 545 P.2d 490, 490 (Ct. App. 1976), and State v. Young,

91 N.M. 647, 650, 579 P.2d 179, 182 (Ct. App. 1978). Rule 5-602(A) governs notice of an

intent to present a defense of “not guilty by reason of insanity,” and Rule 5-602(F) governs

notice of an intent to present a defense that “defendant was incapable of forming the specific

intent required as an element of the crime charged,” but in all other respects they are

identical in requiring that notice to the prosecution must be “given at . . . arraignment or

within twenty (20) days thereafter, unless upon good cause shown, the court waives the time

requirement of this rule.”

{29} In Silva, the defendant argued explicit notice was not necessary under former Rule

35(a)(1)—the predecessor to Rule 5-602(A)—because he filed a motion nine days after his

arraignment requesting a psychiatric examination. See Silva, 88 N.M. at 631, 545 P.2d at

490. The motion indicated that counsel did not know whether the defendant was sane when

he committed the alleged criminal acts; the psychiatric examination was sought to find that

out. See id. Silva rejected the defendant’s argument that filing a request for a psychiatric

examination constituted constructive notice that excused providing the required notice of

intent to raise an insanity defense under the rule. See id. at 631-32, 545 P.2d at 490-91.

{30} Young rejected another attempt to substitute constructive notice for the requirements

of the rule. 91 N.M. at 650, 579 P.2d at 182. Defense counsel argued that the state was on

notice a month before trial because a report filed after a court-ordered mental examination

“suggested a possible insanity defense,” and that he had good cause for the late notice

because he could not contact the psychologist who issued the report until the day before trial,

when he first learned of the psychologist’s intended testimony. Id. Defense counsel did not

notify the prosecution, even at that late date, and withheld the information until after the

prosecution rested its case-in-chief. Id. The court held that “[n]otice of the [insanity]

defense came too late for the prosecution to prepare to meet it” and that in those

circumstances “[t]here was no abuse of discretion in excluding the tendered testimony” of
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the expert. Id.

{31} The record in this case indicates that two months after her June 9, 2008, arraignment,

Defendant filed a motion related to her scheduled psychological examination by the forensic

psychologist who later appeared on the pretrial witness list. Like the defendant in Silva,

Defendant gave no explicit timely notice of her intention to raise any issue of her capacity

to form intent. As in Young, notice of the psychological defense came too late for the

prosecution to prepare to meet it, despite the fact Defendant knew about the possible

psychological defense well before trial but did not provide the timely notice required by Rule

5-602.

{32} “A defendant’s right to present evidence on [her] own behalf is subject to [her]

compliance with established rules of procedure and evidence designed to assure both fairness

and reliability in the ascertainment of guilt and innocence.” State v. Sanders, 117 N.M. 452,

459-60, 872 P.2d 870, 877-78 (1994) (internal quotation marks and citation omitted).

{33} Courts should apply the extreme sanction of exclusion of a party’s evidence

sparingly. The decision to exclude evidence calls on judicial discretion to weigh all the

circumstances, including willfulness in violating the discovery rule, the resulting prejudice

to the opposing party, and the materiality of the precluded testimony. See McCarty, 107

N.M. at 655, 763 P.2d at 364. “Before resorting to preclusion, a trial judge should weigh not

only the prejudicial effect of noncompliance on the immediate case, but also the necessity

to enforce the rule to preserve the integrity of the trial process.” Id. McCarty found an

abuse of discretion in a trial court’s exclusion of alibi witnesses where (1) the rule violation

was not willful, (2) the state was able to interview and prepare for the testimony and was not

prejudiced by the late notice, and (3) the precluded testimony was critical to the defense’s

ability to confront and cross-examine the state’s key witness. Id. Accordingly, this Court

held that “[n]o harm is done to the integrity of the notice-of-alibi rule by prohibiting the

preclusion of witness testimony as a sanction under such circumstances.” Id.; see also

Harper, 2011-NMSC-044, ¶¶ 22, 25, 27-28 (reversing exclusion of the state’s witnesses

where failure to comply with discovery requirements was not willful or in bad faith and

where the defendant was not prejudiced).

{34} In this case, the district court held a hearing on the State’s motion to exclude and

entered an order granting the motion. The order recited that Defendant made no attempt to

comply with Rule 5-602(F) until two days after the State filed its motion; that the expert’s

written report misled the State, which had neither actual nor constructive notice of the

diminished capacity defense; that Defendant showed no good cause for the late notice; and

that the inability to meet or prepare for the undisclosed defense at such a late stage

prejudiced the State. Because Defendant has provided us with no record of the motion

hearing to support any argument that the court abused its discretion in making those findings,

we must affirm the exclusion of the expert testimony. See State v. Rojo, 1999-NMSC-001,

¶ 53, 126 N.M. 438, 971 P.2d 829 (holding that where there is a “deficient record, every

presumption must be indulged by the reviewing court in favor of the correctness” of the
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district court’s judgment (internal quotation marks and citation omitted)); Barnett v. Cal M,

Inc., 79 N.M. 553, 556, 445 P.2d 974, 977 (1968) (holding that a party “desiring review of

a ruling of the trial court has a duty to see that a record is made of the proceedings he desires

reviewed; otherwise the correctness of such ruling cannot be questioned”).

C. The District Court Did Not Abuse Its Discretion in Excluding Expert Testimony

That the Victim’s Wounds Were Not Immediately Fatal.

{35} Defendant also argues that the court abused its discretion in refusing admission of

medical testimony that the victim’s “wounds were not inevitably fatal and that no vital organ

was irreparably injured” as evidence that Defendant lacked the deliberate intent to kill the

victim. The district court granted the State’s pretrial motion to exclude on the grounds that

the medical testimony was not relevant under Rule 11-402 NMRA and that the danger of

unfair prejudice and potential to confuse the issues or mislead the jury would substantially

outweigh any probative value and call for exclusion under Rule 11-403.

{36} We review the district court’s decision to admit or exclude evidence for an abuse of

discretion. See State v. Downey, 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244 (“An

abuse of discretion arises when the evidentiary ruling is clearly contrary to logic and the

facts and circumstances of the case.” (quoting State v. Armendariz, 2006-NMSC-036, ¶ 6,

140 N.M. 182, 141 P.3d 526)). In particular, rulings on matters of doubtful relevance under

Rule 11-402 and the counterbalances to relevant evidence under Rule 11-403 are left to the

broad discretion of the district court. See State v. Chamberlain, 112 N.M. 723, 726, 819

P.2d 673, 676 (1991) (recognizing great discretion vested in the district court in applying

Rule 11-403); see also State v. Wesson, 83 N.M. 480, 482, 493 P.2d 965, 967 (Ct. App.

1972) (stating that “[w]here the materiality of the evidence is doubtful, the admission of such

evidence is within the discretion of the [district] court”).

{37} The excluded evidence had very little, if any, probative value. The victim died

quickly, before police or paramedics arrived, as a result of the thirty-one stab wounds

Defendant inflicted on her, piercing her lungs repeatedly from the front and the back and

severing her jugular vein. The wounds were inflicted with such force that both knives were

bent. The fact that the victim may have survived for a short time after Defendant’s deadly

attack sheds little, if any, light on Defendant’s state of mind. See State v. Garcia, 114 N.M.

269, 275, 837 P.2d 862, 868 (1992) (explaining that evidence of what happened after the

defendant stabbed the victim did not give rise to an inference as to the defendant’s state of

mind before the stabbing). Because the testimony lacked significant probative value, it was

not an abuse of discretion for the district court to exclude it. See State v. Blea, 101 N.M.

323, 326, 681 P.2d 1100, 1103 (1984) (“No error occurs when the judge excludes expert

testimony where the probative value of that testimony is slight.”).

{38} Even if the evidence had any slight relevance, the danger that the jury might be

confused by testimony related to whether the victim could have survived the wounds in

different circumstances would have outweighed its limited probative value. “Although
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relevant, evidence may be excluded if its probative value is substantially outweighed by the

danger of . . . confusion of the issues or misleading the jury.” Rule 11-403 NMRA.

Evidence suggesting that the victim’s wounds would not inevitably cause death could have

led the jury to speculate whether the victim died because she did not receive immediate

medical attention for those wounds. This gives rise to complicated disputes that did not need

to be addressed in this case and would not have been relevant to Defendant’s guilt or

innocence. See State v. Montoya, 2003-NMSC-004, ¶¶ 11-12, 19, 133 N.M. 84, 61 P.3d 793

(explaining the differences between a “but for” and a “proximate” cause analysis under our

homicide jury instructions and holding that “an individual may be a legal cause of death even

though other significant causes significantly contributed to the cause of death”); see also

State v. Jose Ray Gonzales, 95 N.M. 636, 639, 624 P.2d 1033, 1036 (Ct. App. 1981)

(upholding the exclusion of confusing evidence in an aggravated battery case because

“[e]vidence as to who was the aggressor in later incidents would only confuse the issue of

who was the aggressor when [the victim] was shot”), overruled on other grounds by Buzbee

v. Donnelly, 96 N.M. 692, 701, 634 P.2d 1244, 1253 (1981). Because the district court

reasonably viewed the expert’s testimony as having little relevance and as being likely to

confuse the issues or mislead the jury, we hold that the district court did not abuse its

discretion when it excluded the evidence.

D. The District Court Did Not Abuse Its Discretion in Denying Admission of

Letters Defendant Wrote While Incarcerated.

{39} The State introduced at trial three letters Defendant wrote from jail which tended to

prove that Defendant killed the victim and had no remorse for doing so. The district court

accepted the evidence as admissions of a party-opponent under Rule 11-801(D)(2) NMRA.

Defendant introduced five other letters of the more than fifty Defendant had written from

jail, which arguably indicated that at times she had expressed remorse for the killing and

made claims to have acted in self-defense. Defendant argued that the letters the State

introduced, which the court admitted, were taken out of context and that the rule of

completeness, Rule 11-106 NMRA, allowed the admission of the letters Defendant

introduced in order to provide context and show Defendant’s true state of mind during the

killing.

{40} Rule 11-106 provides in its entirety: “When a writing or recorded statement or part

thereof is introduced by a party, an adverse party may require the introduction at that time

of any other part or any other writing or recorded statement which ought in fairness to be

considered contemporaneously with it.”

{41} “The primary purpose behind the rule of completeness is to eliminate misleading or

deceptive impressions created by creative excerpting.” State v. Barr, 2009-NMSC-024, ¶

34, 146 N.M. 301, 210 P.3d 198, overruled on other grounds by State v. Tollardo,

2012-NMSC-008, ¶ 37, 275 P.3d 110. The principle behind the rule of completeness is that

“the whole of a [communication] must be taken together.” Id. (internal quotation marks and

citation omitted). “The classic illustration of a violation of the rule of completeness is
12

quoting ‘there is no God’ from the biblical phrase ‘[t]he fool hath said in his heart, there is

no God.’” Id. (citation omitted).

{42} The rule of completeness did not apply to the letters Defendant tried to admit. This

is not a case in which creative excerpting of a writing leads to deceptive or misleading

impressions of the actual statement. The State admitted the entirety of three letters

Defendant wrote. The fact that other letters Defendant wrote were not also admitted does

not distort the context of the particular letters that were admitted. If the rule functioned the

way Defendant suggests, then admission of any oral or written statement of a party-opponent

would automatically require the admission of all self-serving hearsay statements of the party

on the same topic. Defendant cites no authority which stands for that proposition, and we

know of none. In Barr, we held that allowing the state to use the rule of completeness to

introduce the entirety of a hearsay videotape was an abuse of discretion where the state

failed to show any contents of the previously admitted portions that it alleged were taken out

of context. 2009-NMSC-024, ¶¶ 29, 37, 45; see also State v. Sanders, 117 N.M. 452, 458,

872 P.2d 870, 876 (1994) (holding that the court did not err in denying admission of the

remainder of a twenty-two-page statement of the defendant on which the prosecution had

cross-examined the defendant about two particular passages).

{43} Accordingly, we hold that the district court did not abuse its discretion when it

determined that the rule of completeness did not require the admission of Defendant’s other

letters.

E. The District Court Did Not Abuse Its Discretion in Denying Defendant’s Motion

for a New Trial.

{44} After she was convicted, Defendant unsuccessfully moved for a new trial under Rule

5-614 NMRA. She argued that the district court erred when it excluded her expert testimony

related to her capacity to form murderous intent and when it excluded the letters she wrote

from jail, both arguments that we have separately addressed and rejected.

{45} Rule 5-614(A) gives a district court authority to determine whether justice requires

relief from a conviction in the circumstances of a particular case. (“When the defendant has

been found guilty, the court on motion of the defendant, or on its own motion, may grant a

new trial if required in the interest of justice.”) In recognition of that broad discretion, an

appellate court will reverse the district court’s decision only on a showing of abuse of

discretion. See State v. Chavez, 98 N.M. 682, 683, 652 P.2d 232, 233 (1982).

{46} Because nothing Defendant complains about amounted to an error at trial, the interest

of justice did not require a new trial. Accordingly, the district court did not abuse its

discretion when it denied Defendant’s motion for a new trial.

F. There Is No Cumulative Error Because There Was No Error.
13

{47} Defendant argues that the cumulative effect of the various alleged errors outlined

above denied her a fair trial. “The doctrine of cumulative error requires reversal when a

series of lesser improprieties throughout a trial are found, in aggregate, to be so prejudicial

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

1998-NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, modified on other grounds by State v.

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

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

demonstrates that the defendant received a fair trial.” State v. Trujillo, 2002-NMSC-005,

¶ 63, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citation omitted).

Cumulative error has no application if the district court committed no errors and if the

defendant received a fair trial. See State v. Seaton, 86 N.M. 498, 501, 525 P.2d 858, 861

(1974). Because the district court committed no error in this case, there is no cumulative

error. See State v. Salas, 2010-NMSC-028, ¶ 40, 148 N.M. 313, 236 P.3d 32.

III. CONCLUSION

{48} Finding no error, we affirm Defendant’s conviction.

{49} IT IS SO ORDERED.

____________________________________

CHARLES W. DANIELS, Justice

WE CONCUR:

___________________________________

PETRA JIMENEZ MAES, Chief Justice

___________________________________

PATRICIO M. SERNA, Justice

___________________________________

RICHARD C. BOSSON, Justice

___________________________________

EDWARD L. CHÁVEZ, Justice

Topic Index for State v. Guerra, Docket No. 31,973

AE APPEAL AND ERROR

AE-SR Standard of Review

CL CRIMINAL LAW

CL-CF Capital Felony 

CL-MU Murder
14

CL-SD Self-defense

CL-SI Specific Intent

CA CRIMINAL PROCEDURE

CA-CE Cumulative Error

CA-JI Jury Instructions

CA-NO Notice

CA-NT New Trial

EV EVIDENCE

EV-DO Documentary Evidence

EV-EW Expert Witness

JD JURISDICTION

JD-SM Subject Matter

JD-SC Supreme Court

MC MENTAL COMPETENCY

MC-MI Mental Illness and Competency Statutes