1

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2010-NMSC-016

Filing Date: March 23, 2010

Docket No. 29,664

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

TRACY ALVIN JOHNSON,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY

Jay W. Forbes, District Judge

Law Works, L.L.C.

John A. McCall

Albuquerque, NM

for Appellant

Gary K. King, Attorney General

Francine Ann Baca-Chavez, Assistant Attorney General

Santa Fe, NM

for Appellee

OPINION

SERNA, Justice.

I. INTRODUCTION

{1} This is Defendant Tracy Johnson’s second direct capital appeal to the New Mexico

Supreme Court, following his third trial for the murder of two individuals in Carlsbad in late

2000. Now, almost a decade after the crimes were committed, we affirm Defendant’s

convictions and sentences for two counts of first degree murder, one count of armed robbery,

one count of conspiracy to commit armed robbery, and one count of possession of a firearm
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by a felon.

II. BACKGROUND

{2} We described the crimes with which Defendant was charged in our previous opinion

in this case:

 The two victims [Anthony Granado and Ronnie Lujan] were beaten,

robbed, and killed inside a residence belonging to one of them. One victim

had been shot three times - once in the head, once in the chest, and once in

the back - and had been struck in the head by a hard, curved object,

consistent with a tire iron. The other victim had been shot twice - once in the

head and once in the chest - and had also been struck in the head by a hard,

curved object. A ballistics expert testified that all five bullets were fired

from the same firearm. However, neither the murder weapon nor any of the

items stolen from the house were ever recovered.

State v. Johnson, 2004-NMSC-029, ¶ 3, 136 N.M. 348, 98 P.3d 998.

{3} Defendant was tried by jury and found guilty on the same charges he appeals now,

as well as evidence tampering. On appeal, this Court affirmed his conviction for evidence

tampering, but reversed all of his other convictions on the grounds that the admission of a

certain statement was not harmless error under the United States Supreme Court’s decision

in Crawford v. Washington, 541 U.S. 36 (2004), and remanded for retrial. 2004-NMSC-029,

¶ 2. Defendant’s second trial ended in a mistrial. Defendant was tried a third time, found

guilty on all charges, and sentenced to a total of 67 years in prison.

III. DISCUSSION

{4} Defendant raised sixteen issues in this appeal, and we address each in turn.

A. Admission of Recorded Jail Phone Calls

1. Factual and Procedural History

{5} While being held in the Eddy County Detention Center (“Detention Center”)

awaiting his second trial, Defendant made multiple telephone calls, which were recorded

because the Detention Center digitally records all calls placed by inmates for security

purposes. When a call is placed, a digital message informs both parties to the call that it may

be recorded and monitored, stating, “This call is from a correctional institution and is subject

to monitoring and recording.” The Detention Center interprets the decision of both parties

to the call to continue talking after hearing the recorded message as their consent to the

recording.
1

Martinez was convicted of conspiracy to intimidate a witness. State v. Martinez,

2008-NMCA-019, 143 N.M. 428, 176 P.3d 1160.

3

{6} While in the Detention Center, Defendant placed two calls to Thomas Martinez

(“Martinez”) and one to Cynthia Flores (“Flores”), requesting that Martinez be present at

Defendant’s trial and that Flores ask another individual to be present at the trial, ostensibly

to influence the testimony of the State’s witnesses. In a motion in limine, the State argued

that the calls to Martinez and Flores were evidence that Defendant was engaging in witness

intimidation to prevent certain witnesses from testifying about the true nature of Defendant’s

role in the crimes. The court granted the State’s motion in limine, permitting recordings of

the conversations to be played at trial, and admitting Defendant’s statements as admissions

of a party opponent and those of Martinez and Flores as non-hearsay statements made in

furtherance of a conspiracy.1

 A portion of one call to Martinez was admitted as an adoptive

admission of Defendant.

{7} Defendant argues that the calls were recorded in violation of his rights under the New

Mexico Abuse of Privacy Act and the United States and New Mexico Constitutions and were

improperly admitted at trial.

2. Standard of Review

{8} Our review of the admission of the telephone calls involves a mixed question of law

and fact and is reviewed de novo. State v. Templeton, 2007-NMCA-108, ¶ 8, 142 N.M. 369,

165 P.3d 1145.

3. Abuse of Privacy Act

{9} Defendant argues that the phone calls in question were recorded in violation of

Section 30-12-1 of the Abuse of Privacy Act (“Act”), NMSA 1978, §§ 30-12-1 to -11 (1963,

as amended through 1979), which prohibits the knowing interference of communication

without lawful authority by “reading, interrupting, taking or copying any message,

communication or report intended for another by telegraph or telephone without the consent

of a sender or intended recipient thereof [.]” Section 30-12-1(C). An exception is provided

when “one of the parties to the communication has given prior consent to such interception,

monitoring or recording of such communication.” Section 30-12-1(E)(3).

{10} Two Court of Appeals opinions have addressed this question and held that the Act

is not violated when a prisoner impliedly consents to the recording of calls placed from jail.

In State v. Coyazo, 1997-NMCA-029, 123 N.M. 200, 936 P.2d 882, cert. denied, 123 N.M.

168, 936 P.2d 337 (1997), the defendant was in jail awaiting trial on first degree murder

charges when he placed a call on the jail phone, next to which was a sign stating that all calls

were subject to monitoring and recording. The Court of Appeals consulted case law

discussing the analogous federal statute, 18 U.S.C. § 2511, to conclude the defendant’s
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consent to the recording could be shown by circumstantial evidence, namely, the sign next

to the phone stating that the call was subject to recording. Coyazo, 1997-NMCA-029, ¶¶ 10,

13, 16. In Templeton, the Court of Appeals affirmed the Coyazo application of the exception

in the Act to calls made in jail. The Court reiterated that consent may be implied where

adequate notice has been given an inmate that phone calls are subject to recording. 2007-

NMCA-108, ¶ 15 (stating that “adequate notice” includes “signs near telephones indicating

that calls may be monitored, information in orientation or prison handbooks provided to

inmates, forms signed by inmates consenting to monitoring procedures, [and] recordings on

telephones that indicate the monitoring policy prior to the placing of a call”). The Court

found that the recording of a call placed from the booking area, where no notice was given

that calls could be recorded, violated the Act. Id. ¶ 16. However, the Templeton Court

concluded that a call placed from inside the jail, where there were signs next to the phone

stating that the call would be recorded and an automated recording informed the caller that

the call was being recorded before the number dialed was connected, did not violate the Act

because the defendant had consented to the recording by placing the call with the knowledge

that it would be recorded. Id. ¶¶ 23-24.

{11} Defendant’s briefs do not attempt to distinguish Coyazo and Templeton and do

nothing more than reference arguments made in response to the State’s motion in limine,

which is an unacceptable appellate practice. See Rule 12-213(A)(4) NMRA. We agree with

the Court of Appeals’ analyses in Coyazo and Templeton concluding that the Act is not

violated when phone calls placed from jail are recorded after the caller has been given notice

that such will occur. Defendant impliedly provided prior consent to the recording of his calls

by placing the calls with the knowledge that they were subject to recording and monitoring;

indeed, we may say that Martinez and Flores also consented to the recording of the phone

calls by accepting the calls after hearing the recording. The consent exception to the Act,

Section 30-12-1(E)(3), applies to phone calls placed from jail when one or both parties

impliedly consents, and thus Defendant’s rights under the Act were not violated.

4. United States Constitution: Amendments Four, Five, and Six

{12} Defendant also claims that the recording of the phone calls violated his rights under

the Fourth, Fifth, and Sixth Amendments of the United States Constitution. These claims

are meritless.

{13} The Fourth Amendment protects against unreasonable searches and seizures. See

Burdeau v. McDowell, 256 U.S. 465, 474-75 (1921). While the United States Supreme

Court has not decided whether the monitoring and recording of prison phone calls violates

the Fourth Amendment, the federal Circuit Courts which have addressed this question under

the federal wiretapping statute, 18 U.S.C. § 2511, have found that it does not. Like the New

Mexico Abuse of Privacy Act, the federal wiretapping statute contains an exception that

permits recording when consent has been obtained. Compare NMSA 1978, § 30-12-1(E)(3)

with 18 U.S.C. § 2511(2)(c). Federal courts have found implied consent under the

wiretapping statute when jails notify inmates by sign or recording that their calls are being
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monitored, and thus there exists no reasonable expectation of privacy in the phone call that

would result in a Fourth Amendment violation. See, e.g., United States v. Verdin-Garcia,

516 F.3d 884, 894 (10th Cir. 2008) (finding implied consent to recording based on

circumstantial evidence that the defendant knew calls from jail phones were recorded);

United States v. Workman, 80 F.3d 688, 693-94 (2d Cir. 1996) (consent implied when inmate

notified that call would be recorded and still placed call); United States v. Van Poyck, 77

F.3d 285, 290-91 (9th Cir. 1996) (same); Jaramillo v. Scribner, 2009 WL 1444353, at *11

(E.D. Cal. 2009) (no reasonable expectation of privacy in a phone call from prison where a

“recorded voice at the beginning of the telephone call alerted [the defendant] that the call

may be monitored and recorded”). We agree that Defendant’s Fourth Amendment rights

were not violated by the recording of a phone call he made with notice that the call would

be recorded.

{14} The Fifth Amendment protects against compelled self-incrimination and is violated

by custodial interrogation resulting in a coerced confession. See Miranda v. Arizona, 384

U.S. 436, 467 (1966). Here, Defendant was in police custody, but he was not the subject of

police interrogation when he placed these phone calls, nor was he coerced into conversing

about witness intimidation on the jail phone. See Coyazo, 1997-NMCA-029, ¶ 17 (finding

that “there is no evidence that [the defendant] was compelled, coerced, or improperly

influenced into making the calls in question”); see also United States v. Horr, 963 F.2d 1124,

1126 (8th Cir. 1992) (“[The defendant] was aware of the telephone monitoring policy. It was

his choice to use the telephone to conduct his illegal business. Having gambled by discussing

his [illegal plan], [the defendant] cannot now be heard to complain that he lost.”).

Defendant’s Fifth Amendment Rights were not violated. 

{15} The Sixth Amendment protects an individual’s right to counsel and the

confidentiality of conversations between client and counsel. See State v. Young,

2007-NMSC-058, ¶ 2, 143 N.M. 1, 172 P.3d 138; Coyazo, 1997-NMCA-029, ¶ 19. None

of the phone calls in question were to Defendant’s counsel, and therefore Defendant’s Sixth

Amendment rights were not violated. See Coyazo, 1997-NMCA-029, ¶ 19.

5. New Mexico Constitution: Article II, Sections 10, 14, 15, and 17

{16} Article II, Section 10 of the New Mexico Constitution protects against unreasonable

searches and seizures. Although our Constitution generally provides greater protection than

the Fourth Amendment, Article II, Section 10 is not violated by the recording of the jail

phone calls because Defendant had no reasonable expectation of privacy in phone calls he

knew were being recorded. See Templeton, 2007-NMCA-108, ¶ 26.

{17} Article II, Section 14 protects the right to counsel. As there was no call to

Defendant’s attorney involved, Section 14 was not violated. See Coyazo, 1997-NMCA-029,

¶ 19.

{18} Article II, Section 15 protects against coerced self-incrimination. Just as it did not
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violate the Fifth Amendment, recording these calls did not violate Section 15. See id. ¶ 17.

{19} Article II, Section 17 protects freedom of speech. The First Amendment of the

federal Constitution is not violated when prisons monitor inmates’ phone calls for prison

security purposes. See, e.g., United States v. Vasta, 649 F. Supp. 974, 989-90 (S.D.N.Y.

1986). Defendant offers no argument that Article II, Section 17 provides greater speech

protections in this case, see State v. Gomez, 1997-NMSC-006, ¶ 23, 122 N.M. 777, 932 P.2d

1, and thus we need not determine whether Section 17 was violated by prison officials

recording the phone calls.

6. Admission of the Calls

{20} Having determined that the recording of the phone calls should not be suppressed for

violating the Act or the United States or New Mexico Constitutions, we turn to whether the

calls were admitted for a proper purpose. Defendant argues that the calls were improperly

admitted and that an expert was necessary to explain the colloquial language used in the

calls. The State argues that the calls were properly admitted as the non-hearsay admissions

of a party opponent or for purposes other than the truth, such as evidence of other bad acts

for proving motive or intent.

{21} The district court did not err in admitting the calls. The statements of Defendant

were admitted as non-hearsay statements of a party opponent. Rule 11-801(D)(2)(a) NMRA.

The statements of the other party to the phone conversations were admitted as adoptive

statements of a co-conspirator in furtherance of the conspiracy, Rule 11-801(D)(2)(e), and,

in one case, as an adoptive admission of Defendant. Rule 11-801(D)(2)(b). Cf. State v.

Macias, 2009-NMSC-028, ¶ 36, 146 N.M. 378, 210 P.3d 804 (holding that the district court

abused its discretion in admitting recorded phone calls placed from a jail phone to which no

exception or exemption to the hearsay rule applied). Defendant need not have been charged

with conspiracy to intimidate a witness in order for this exception to the hearsay rule to be

invoked to admit evidence. See State v. Farris, 81 N.M. 589, 589-90, 470 P.2d 561, 561-62

(Ct. App. 1970). We hold that these statements were properly admitted under the

aforementioned hearsay exceptions.

7. Manner of Admission

{22} Defendant also argues that he received ineffective assistance of counsel because no

objection was made to the lack of an expert witness to explain the language used in the

recorded calls. Establishing a prima facie case of ineffective assistance of counsel requires

a defendant to show (1) an error by trial counsel, and (2) that the defendant was prejudiced

by that error. See State v. Grogan, 2007-NMSC-039, ¶ 11, 142 N.M. 107, 163 P.3d 494.

As the Court of Appeals noted in its review of two of these conversations in Martinez’s trial

for conspiracy to intimidate a witness:

 While the conversations were replete with idiomatic and offensive
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language, the agreement that [Martinez] would appear in court to intimidate

[the witness] was sufficiently clear and understandable for the jury to

determine that the two agreed on a plan to accomplish that result: shake the

witness up and make him afraid to testify truthfully or to have a lapse in

memory.

Martinez, 2008-NMCA-019, ¶ 4. There was no error in admission of the phone calls without

the use of an expert. As there was no error by trial counsel in not objecting to the lack of

expert witness in the admission of the phone conversations, Defendant’s ineffective

assistance of counsel claim fails. 

B. Use of Leg Shackles During Trial

1. Background

{23} Defendant was in leg irons for the duration of the trial. The record does not contain

the reason behind this security measure. Defendant requested that the leg irons be removed

if he were to testify. Citing safety concerns and recent violent incidents in other states

involving unsecured defendants, the district court said it would not “override the detention

center” and remove Defendant’s leg irons if he were to testify. Defendant did not testify.

In addition, five security guards were present in the courtroom during the trial, although the

reason for their presence is not in the record. Defendant did not object either to the presence

of the security officers or the use of leg irons, other than to request the shackles be removed

were Defendant to testify.

{24} Defendant now argues that the use of leg irons during trial violated his due process

rights under the United States and New Mexico Constitutions, as well as his right to a fair

and impartial jury and a presumption of innocence under the New Mexico Constitution.

Defendant does not argue that the presence of the security officers violated his rights, but

does acknowledge that some level of security was necessary during trial in stating that either

the use of shackles or the presence of the guards “would be sufficient to guarantee any safety

issues related to the trial, but not both.”

2. Standard of Review

{25} Defendant did not object to the use of leg irons during the trial. As it was not

preserved, we review this issue for fundamental error. State v. Holly, 2009-NMSC-004, ¶

40, 145 N.M. 513, 201 P.3d 844. 

Error that is fundamental must be such error as goes to the foundation or

basis of a defendant’s rights or must go to the foundation of the case or take

from the defendant a right which was essential to his defense and which no

court could or ought to permit him to waive. Fundamental error only applies

in exceptional circumstances when guilt is so doubtful that it would shock the
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judicial conscience to allow the conviction to stand. 

State v. Gallegos, 2009-NMSC-017, ¶ 27, 146 N.M. 88, 206 P.3d 993 (internal quotation

marks and citations omitted).

3. Analysis

{26} The United States Supreme Court concluded that visible shackling is “inherently

prejudicial,” Deck v. Missouri, 544 U.S. 622, 635 (2005), and stated that “the Fifth and

Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a

trial court determination, in the exercise of its discretion, that they are justified by a state

interest specific to a particular trial[,]” including security concerns. Id. at 629. The

important principles behind this rule are: (1) the presumption of innocence, id. at 630

(“Visible shackling undermines the presumption of innocence and the related fairness of the

factfinding process.”); (2) the right to counsel, id. at 631 (stating that shackles “can interfere

with a defendant’s ability to participate in his own defense, say, by freely choosing whether

to take the witness stand on his own behalf”); and (3) the dignity of the judicial process. Id.

(“[T]he use of shackles at trial affronts the dignity and decorum of judicial proceedings that

the judge is seeking to uphold.” (internal quotation marks and modifications omitted)). State

interests may outweigh these individual rights, but a court must make this determination

after a review of each case’s circumstances. Id. at 632.

{27} In Deck, the Court found that the defendant was prejudiced by visible shackling

during the sentencing phase of his trial. The record was clear that the jury knew the

defendant was shackled, id. at 634, and the prosecution failed to meet its burden of proving

beyond a reasonable doubt that the inherently prejudicial shackling did not contribute to the

guilty verdict. Id. at 635.

{28} In contrast, where a defendant is restrained in a manner not visible to the jury,

prejudice is not presumed. In United States v. Wardell, 591 F.3d 1279, 1294 (10th Cir.

2009), the Tenth Circuit refused to presume prejudice when a defendant was required to

wear a stun belt that was not visible to the jury. Similarly, in Holly, we found no

fundamental error when a single juror may have viewed the defendant in handcuffs and

defense counsel raised the issue to the judge but did not request a mistrial, removal of the

juror, or a finding of prejudice. 2009-NMSC-004, ¶¶ 40-41.

{29} In this case, the district court did not commit fundamental error by keeping

Defendant in shackles for the duration of the trial. There is no indication the jury saw the

leg irons, and thus the factors tending to show prejudice are not present. See id. ¶¶ 40-42.

As the jury was not aware of Defendant’s restraint, Defendant’s presumption of innocence

was not violated. See State v. Sluder, 82 N.M. 755, 756-57, 487 P.2d 183, 184-85 (Ct. App.

1971). For the same reason, the dignity of the judicial process was not affected. See Deck,

544 U.S. at 630. Defendant’s right to counsel was not violated, as the record does not reveal

that Defendant’s decision not to testify was a result of the district court’s determination that
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Under Rule 5-115(C) NMRA, the appearance of a defendant before the court in “any

. . . item which, if visible to the jury, would prejudice the defendant in the eyes of the jury”

is not permitted “[e]xcept by order of the court[.]” While the district court may take the

views of the executive branch into consideration, the judge must make the determination

about the propriety and necessity of restraint devices in each particular case.

9

Defendant posed too great a security risk to be unshackled rather than Defendant’s own free

choice not to testify. See id. at 631. While the record seems to indicate the decision to

shackle Defendant was the Department of Corrections and not the district courts,2

 the district

court considered Defendant to pose a safety threat and stated it would not remove the leg

irons. We do note, however, that this procedure is rarely justified. See id. at 628 (counseling

that shackling “should be permitted only where justified by an essential state interest specific

to each trial” (internal quotation marks and citation omitted)). In the future, the district court

and the parties should ensure the record reflects the reasons behind security measures

undertaken during trial and the ways in which the defendant’s constitutional rights are

protected or the state interests that outweigh the defendant’s individual rights.

C. Denial of Challenges for Cause During Jury Selection

1. Background

{30} Defendant argues that the district court’s denial of his requests to strike two jurors,

Jurors 28 and 35, for cause violated Defendant’s right to an impartial jury. Juror 28’s cousin

was murdered and Juror 28 did not believe the perpetrator’s sentence was sufficient. Juror

28 indicated that he would follow the law as stated by the judge and be fair in his

determination of guilt, though it would be difficult for him to ignore the victims’ families’

feelings. Juror 35’s friend was murdered nine years prior, and Juror 35 stated that the

feelings that arose after the murder would be “rekindled” during trial. Juror 35 stated those

feelings would not cause her to be unfair to either side. The district court denied

Defendant’s attempts to have Jurors 28 or 35 struck for cause. As a result, Defendant used

peremptory strikes to remove Jurors 28 and 35. 

2. Standard of Review

{31} “[W]e review the trial court’s rulings regarding the selection of jurors for an abuse

of discretion because the trial court is in the best position to assess a juror’s state of mind,

based upon the juror’s demeanor and credibility.” State v. Allen, 2000-NMSC-002, ¶ 83, 128

N.M. 482, 994 P.2d 728 (filed 1999) (internal quotation marks and citations omitted). “An

abuse of discretion exists when the trial court acted in an obviously erroneous, arbitrary, or

unwarranted manner.” Gallegos, 2009-NMSC-017, ¶ 21 (internal quotation marks and

alterations omitted). Where the trial court clearly abused its discretion in failing to excuse

a juror who could not be impartial, prejudice is presumed if the petitioner used all

peremptory challenges on potential jurors who could be excused for cause before a jury was
10

seated. Fuson v. State, 105 N.M. 632, 634, 735 P.2d 1138, 1140 (1987). The challenging

party bears the burden of proving juror bias. State v. Baca, 99 N.M. 754, 756, 664 P.2d 360,

362 (1983).

3. Analysis

{32} The jury may not consider the consequences of its verdict. State v. Brown, 1997-

NMSC-029, ¶ 12, 123 N.M. 413, 941 P.2d 494. In this case, although both Jurors 28 and 35

indicated the trial would cause them to think about the murders of their loved ones, both also

indicated that they would be able to be fair and follow the instructions of the judge. The

district court denied the request based on this fact and we will not second-guess his

judgment, and Defendant failed to demonstrate that his use of peremptory strikes on Jurors

28 and 35 resulted in prejudice. Cf. Rivera v. Illinois, ___ U.S. ___, ___, 129 S. Ct. 1446,

1453 (2009) (“If a defendant is tried before a qualified jury composed of individuals not

challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith

error is no matter of federal constitutional concern.”). As we will not presume prejudice and

Defendant has failed to show prejudice, we hold that the district court did not abuse its

discretion in failing to strike the jurors for cause.

D. Voir Dire Questions

1. Background

{33} During voir dire, the prosecutor posed questions to the venire about accessory

liability using hypotheticals. The first hypothetical, to which Defendant did not object, was

a scenario about three people stealing an air conditioner. The second hypothetical involved

a homicide, and the prosecutor initially used Defendant’s name, stating, “Let’s just take for

instance Mr. Johnson is not the person who pulled the trigger.” Defendant objected. In a

sidebar, the district court permitted the question without use of Defendant’s name, a

restriction with which the prosecutor complied. No juror admitted to being unable to follow

the law regarding accessory liability. Defendant now argues this question amounted to

prosecutorial misconduct that deprived him of a fair trial.

2. Standard of Review

{34} We apply an abuse of discretion standard of review to the district court’s

“determination of how voir dire should be conducted, because assuring the selection of an

impartial jury may require that counsel be allowed considerable latitude in questioning

prospective [jury] members.” Allen, 2000-NMSC-002, ¶ 83 (internal quotation marks and

citations omitted; alteration in original). “The trial court, who is listening first hand to

counsel’s questions and the panel members’ responses, is in the best position to determine

whether voir dire has sufficiently exposed any biases that may preclude jurors from acting

fairly and impartially.” State v. Martinez, 2002-NMCA-036, ¶ 35, 131 N.M. 746, 42 P.3d

851. We will reverse only if a clear abuse of discretion by the district court in the conduct
11

of voir dire resulted in prejudice to defendant. State v. Clark, 1999-NMSC-035, ¶ 20, 128

N.M. 119, 990 P.2d 793.

3. Analysis

{35} The Sixth Amendment of the United States Constitution guarantees defendants the

right to trial by a fair and impartial jury and is implicated during voir dire. State v. Sosa,

1997-NMSC-032, ¶¶ 14, 15, 123 N.M. 564, 943 P.2d 1017 (finding that the trial judge’s

decision not to permit defense questioning on the venire’s attitude to gangs was not an abuse

of discretion). In Clark, we held the trial court did not abuse its discretion by permitting the

prosecutor to ask whether an individual could impose the death penalty, as “this questioning

did not commit jurors to return a death sentence.” 1999-NMSC-035, ¶ 20.

{36} In this case, the prosecutor’s questioning whether the potential jurors could follow

the law did not bind them to return a guilty verdict. There is no indication that the

prosecutor’s questions prejudiced the jury. The district court did not abuse its discretion by

permitting the use of hypotheticals during the voir dire in a way that resulted in prejudice to

Defendant.

E. Exclusion of Witness from Courtroom

1. Background

{37} Defendant’s father was included on the witness lists for both parties. During the first

trial, the district court imposed the witness sequestration rule but permitted witnesses who

were not going to be recalled to stay in the courtroom after they testified. The district court,

in the first trial, ruled that Defendant’s father, though not called by either party as part of a

case-in-chief and Defendant’s only relative able to be present at trial, was potentially a

rebuttal witness for the State and therefore remained under sequestration. During a bench

conference in the third trial, Defendant requested that his father, who had not been called as

a witness, be allowed to sit in the courtroom, as the victims’ mothers, witnesses who had

already testified, were so permitted. The district court denied the request, invoking the prior

ruling on witness sequestration. Defendant implicitly argues that his father was excluded

from the courtroom because he is African-American.

2. Standard of Review

{38} Although the parties describe the issue as whether the district court abused its

discretion in excluding members of the general public from the courtroom, our review is

whether the district court abused its discretion by imposing the witness sequestration rule.

See State v. Shirley, 2007-NMCA-137, ¶ 33, 142 N.M. 765, 170 P.3d 1003. “We will not

disturb the decision of the trial court absent a clear abuse of this discretion and prejudice to

the complaining party.” State v. Hernandez, 115 N.M. 6, 18, 846 P.2d 312, 324 (1993).
12

3. Analysis

{39} The witness sequestration rule permits the exclusion of witnesses from the courtroom

to prevent the tailoring of testimony that may occur as a result of listening to the trial. Rule

11-615 NMRA (permitting the exclusion of witnesses from the courtroom “so that they

cannot hear the testimony of other witnesses”); see also State v. Trevino, 113 N.M. 804, 809,

833 P.2d 1170, 1175 (Ct. App. 1991). As evidenced by the concerns of witness intimidation,

discussed supra Section III.A., the district court was validly concerned about the integrity

of the testimony at trial. The district court did not abuse its discretion in upholding the

witness sequestration rule during this trial with the effect that Defendant’s father was

excluded from the courtroom, and Defendant did not show that he was prejudiced by the

imposition of the rule. There is no basis in the record for the allegation that Defendant’s

father was excluded because of his race.

F. Admission of Testimony

1. Standard of Review

{40} The trial court’s admission or exclusion of evidence is reviewed on an abuse of

discretion standard. Macias, 2009-NMSC-028, ¶ 16. On appeal, the reviewing court will

not consider issues not raised in the trial court unless the issues involve matters of

jurisdictional or fundamental error. Rule 12-216(B) NMRA.

2. Analysis

{41} Relevant evidence is that which has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Rule 11-401 NMRA. Relevant evidence is admissible.

Rule 11-402 NMRA. Relevant evidence will be excluded, however, if its probative value

is “substantially outweighed by the danger of unfair prejudice, confusion of the issues or

misleading the jury, or by considerations of undue delay, waste of time or needless

presentation of cumulative evidence.” Rule 11-403 NMRA. Evidence that reflects on a

witness’ credibility is relevant. See, e.g., State v. Christopher, 94 N.M. 648, 651, 615 P.2d

263, 266 (1980). “Any doubt whether the evidence is relevant should be resolved in favor

of admissibility.” State v. Balderama, 2004-NMSC-008, ¶ 23, 135 N.M. 329, 88 P.3d 845.

a. Testimony Regarding Fight at the Hub

{42} Defendant argues that the admission of testimony about a fight, to which Defendant

was a party, at the Hub, a liquor store, hours prior to the murders was not relevant and more

prejudicial than probative. The State argues that it was relevant and probative to whether

Defendant and his associates acted in concert the night of the murders.

{43} Witness Jeff Hoff (“Hoff”) testified about an incident at the Hub many hours prior
3

We note that this testimony arguably falls under the rubric of propensity testimony.

Under Rule 11-404(B) NMRA, evidence of prior bad acts may not be admitted solely “to

prove the character of a person in order to show action in conformity therewith.” See State

v. Gallegos, 2007-NMSC-007, ¶ 22, 141 N.M. 185, 152 P.3d 828 (“[t]he rule prohibits the

use of otherwise relevant evidence when its sole purpose or effect is to prove criminal

propensity.”). Before admitting such evidence, the proponent of the evidence must give

notice of his or her intent to do so and “identify and articulate the consequential fact to

which the evidence is directed before it is admitted.” Id. If the trial court finds the evidence

is admissible under Rule 11-404(B), it must still determine whether it satisfies the

requirements of Rule 11-403. Gallegos, 2007-NMSC-007, ¶ 22. However, we note that

even if Defendant had objected under Rule 11-404(B), and even if we had found error in the

district court’s admission of the evidence, we would have found such error to be harmless,

as there is not a reasonable probability that the error affected the jury verdict. See State v.

Torrez, 2009-NMSC-029, ¶ 33, 146 N.M. 331, 210 P.3d 228 (“To determine whether a nonconstitutional error was harmless, we must assess whether there is no reasonable probability

that the error affected the verdict.”).

13

to the murders. According to Hoff, Defendant, Coley Ingram (“Coley”), Jamall Young

(“Young”), Wayne Ingram (“Wayne”), and Hoff drove to the Hub and Defendant, Coley, and

Young entered into an altercation with a group of individuals in the parking lot, at the end

of which Defendant punched a woman. Defendant objected that the testimony was not

relevant, and the district court overruled the objection. Defendant did not object under any

other rule of evidence, and thus our review is limited to whether the testimony was relevant

under Rule 11-401. See State v. Lopez, 84 N.M. 805, 809, 508 P.2d 1292, 1296 (1973)

(stating that an issue is preserved for appeal only when a timely objection that alerts the trial

court of the nature of the claimed error is made and invokes an intelligent ruling thereon).

Because we find that the Hub fight testimony has at least a small tendency to make the

existence of the fact that Defendant and his cohorts acted in concert on the night of the

murders, we hold that the district court did not err in admitting this testimony.3

b. Testimony Regarding Memory of Crimes

{44} Defendant further argues that Hoff’s testimony about his state of mind after the

murders was more prejudicial than probative and its admission should result in reversal.

This issue was not preserved below, and thus our review is for fundamental error. See State

v. Ervin, 2008-NMCA 016, ¶ 14, 143 N.M. 493, 177 P.3d 1067. The testimony about how

often Hoff thinks of the murders is probative because of the lapse of time since the murders

were committed and to explain the discrepancies between Hoff’s testimony and prior

statements he had given to the police. There was no fundamental error in the admission of

this testimony.

c. Testimony Regarding Time Before Going to Police
14

{45} On cross-examination, Defendant questioned Hoff about why he waited four days

before reporting the crime to the police. On re-direct, the State asked Hoff to explain why

he had waited. Defendant objected to the question as being “irrelevant and immaterial.” The

district court permitted the questions as relevant.

{46} Defendant attempted to impeach Hoff’s credibility during cross-examination, and

the State’s questions about the four-day absence were asked to rehabilitate the witness. The

testimony was relevant to the issue of the witness’ credibility, and thus the district court did

not abuse its discretion by permitting questioning into Hoff’s reasons for waiting multiple

days before reporting the crime.

G. Motion for Mistrial

1. Denial of Motion for Mistrial Made At Trial

a. Background

{47} Wayne, who was not charged in the crimes, refused to testify when called as a

witness by the State, stating that he had no memory of the events on the day of the murders

and that he felt threatened. Defendant moved for a mistrial on the grounds that the jury was

prejudiced by the fear in the courtroom that prevented Wayne from testifying. The district

court denied the motion for mistrial. With the jury absent, the district court ruled that Wayne

was “practically unavailable” and permitted Wayne’s testimony from the first trial to be

played because “the testimony he gave was voluntary, it was given under oath, he was crossexamined, it has not been recanted.” After the recorded testimony was played, the district

court permitted both parties to cross-examine Wayne using leading questions.

{48} Defendant argues that the district court erred by failing to grant a mistrial, as finding

Wayne unavailable and admitting his prior testimony deprived Defendant of his

Confrontation Clause rights, and that the testimony was wrongfully admitted under the

forfeiture by the wrongdoing exception to the hearsay rule. The State argues that the prior

testimony was properly admitted under the former testimony exception to the hearsay rule.

b. Standard of Review

{49} A denial of a motion for mistrial is reviewed under an abuse of discretion standard.

State v. McDonald, 1998-NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752.

c. Analysis

{50} The record is clear that the district court admitted Wayne’s recorded testimony under

the former testimony exception to the hearsay rule, Rule 11-804(B)(1) NMRA. To admit

former testimony under this exception, the court must first determine that the witness is

unavailable. One way in which a witness may be found unavailable is if she or he “testifies
15

to a lack of memory of the subject matter of the declarant’s statement.” Rule 11-804(A)(3).

If a witness is determined to be unavailable, the former testimony exception permits the

introduction of testimony “taken in compliance with law in the course of the same or another

proceeding, if the party against whom the testimony is now offered . . . had an opportunity

and similar motive to develop the testimony by direct, cross or redirect examination.” Rule

11-804(B)(1). The purpose of the cross-examination requirement is to ensure that a

defendant’s Confrontation Clause rights are not violated. See Crawford, 541 U.S. at 53-54.

{51} In this case, the district court did not abuse its discretion by finding Wayne was

unavailable to testify based on his repeated refusal to testify due to a purported lack of

memory. See State v. Gonzales, 112 N.M. 544, 551, 817 P.2d 1186, 1193 (1991) (holding

that the district court did not abuse its discretion by finding a witness who “repeatedly stated

he could not remember events and details about which he previously testified” unavailable

and admitting the prior testimony under Rule 11-804(B)(1)). Defendant’s Confrontation

Clause rights were not violated because Defendant had an opportunity to cross-examine

Wayne, and the same motive to develop Wayne’s testimony, during Defendant’s first trial

on these same charges. In addition, the court permitted Defendant to cross-examine Wayne

after the tape was played, further dispelling any concerns about Defendant’s Confrontation

Clause rights. The district court did not abuse its discretion by admitting Wayne’s former

testimony under the prior testimony exception to the hearsay rule.

2. Failure to Grant a Mistrial Sua Sponte

a. Background

{52} Defendant argues that the district court erred by not conducting evidentiary hearings

before one juror withdrew and to determine why two witnesses, Wayne and Coley, were in

fear. Midway through trial, one juror requested, in chambers, that she be excused because

her daughter was the Ingrams’ neighbor. Defendant was not present, but his counsel gave

a “full and complete waiver” to Defendant’s presence. Defendant did not object to his

counsel’s actions. Wayne testified for the State, and Coley testified for the defense. Neither

said who or what was making them afraid.

b. Standard of Review

{53} As Defendant did not move for a mistrial on these grounds during trial, our review

is for fundamental error. See Gallegos, 2009-NMSC-017, ¶ 27.

c. Analysis

{54} In Gallegos, we determined there was no fundamental error when the district court

did not order a mistrial sua sponte after two jurors asked the bailiff if the defendant would

plead, and the judge conducted individual voir dire and offered a curative instruction. Id.

¶ 29. The judge took “necessary steps to determine whether bias or prejudice existed in the
16

minds of the jurors[.]” Id. Here, the district court did not commit fundamental error by

failing to declare a mistrial sua sponte when one juror was excused because she was fearful

of repercussions against her daughter, she said on the record that she could not be impartial,

no other jurors knew she was making such a request, and Defendant waived his right to be

present when the district court dismissed the juror.

{55} Defendant also argues that the court should have declared a mistrial sua sponte

because Coley and Wayne said they were scared to testify. As cited to us by Defendant, “It

is axiomatic in our system of justice that an individual is entitled to a fair trial S not a perfect

one.” United States v. Mannie, 509 F.3d 851, 857 (7th Cir. 2007) (finding, under abuse of

discretion review, that trial court erred by not granting mistrial when courtroom atmosphere

was extremely disruptive and trial court’s voir dire and curative instructions were not

enough). Here, we are reviewing for fundamental error, and the failure of the district court

to conduct an unrequested evidentiary hearing does not “shock the conscience” such that

reversal is required.

H. Denial of Motion for Directed Verdict

1. Background

{56} The armed robbery charge required the State to prove that Defendant took and carried

away the property of the victims, that Defendant was armed, and that Defendant took the

property by use or threat of force or violence. NMSA 1978, § 30-16-2 (1973). Because the

State argued that Defendant committed the armed robbery under an accomplice theory, it had

to show that Defendant intended the crime to be committed and helped, encouraged, or

caused the crime to be committed. NMSA 1978, § 30-1-13 (1972).

2. Standard of Review

{57} We review denials of directed verdicts by asking

whether sufficient evidence was adduced to support the underlying charge.

The test for sufficiency of the evidence is whether substantial evidence of

either a direct or circumstantial nature exists to support a verdict of guilt

beyond a reasonable doubt with respect to every element essential to a

conviction. When considering the sufficiency of the evidence, this Court

does not evaluate the evidence to determine whether some hypothesis could

be designed which is consistent with a finding of innocence. Instead, we

view the evidence as a whole and indulge all reasonable inferences in favor

of the jury’s verdict while at the same time asking whether any rational trier

of fact could have found the essential elements of the crime beyond a

reasonable doubt. 

State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198 (internal quotation
17

marks, citations, and alterations omitted).

3. Analysis

{58} We hold that “substantial evidence of either a direct or circumstantial nature,” id.,

was presented at trial to permit the jury to find Defendant guilty beyond a reasonable doubt.

The testimony presented at trial that supports Defendant’s armed robbery conviction

includes: Hoff’s testimony about the conversation in the bathroom between Defendant and

Coley; Hoff’s testimony that Defendant said, “[t]his is a jack” upon entering the victims’

room; Hoff’s testimony about Young bringing items out of the house and into the

Defendant’s car; Wayne’s recorded testimony that he saw a phone, pager, and jewelry at

Defendant’s house after the robbery but had not seen Defendant with such items prior to the

murders; David Mata’s testimony that Defendant requested he hide Defendant’s guns shortly

after the murder and robbery; Coley’s recorded testimony that Defendant thought the victim

was in possession of Defendant’s gun; the State’s witnesses who impeached Coley’s

testimony exculpating Defendant, including the prison officials who testified that Coley had

stated that Defendant had the gun with which he committed the murders; testimony that

Defendant dominated his relationship with Coley; recorded phone calls in which Coley told

his family he did not commit the crimes, although he confessed to the same; recorded phone

calls in which Defendant requested other individuals intimidate the witnesses against him;

and testimony of multiple witnesses, including Defendant himself, that Defendant had

remained in the room during the commission of the crimes.

{59} Although evidence was presented contrary to Defendant’s conviction, is it not our

role to “evaluate the evidence to determine whether some hypothesis could be designed

which is consistent with a finding of innocence.” Id. The testimony presented exculpating

Defendant was his own recorded testimony from the first trial and Coley’s testimony that

Defendant played no role in the robbery and that his previous testimony, in which he stated

that Defendant committed the crimes, was false. Viewing the evidence as a whole and in the

light most favorable to the verdict, there is sufficient evidence for a reasonable jury to have

found Defendant guilty of armed robbery beyond a reasonable doubt.

I. Aiding and Abetting Jury Instruction 

{60} Defendant argues that the district court committed error in issuing the aiding and

abetting jury instruction, having objected based on his “great hope” that we change the

instruction. The district court gave the aiding and abetting uniform jury instruction, UJI 14-

2821 NMRA, approved by this Court at the time of the trial, and Defendant has not

convinced us of any need to revisit that instruction. There is no error.

J. Sufficiency of the Evidence

{61} Defendant attempts to revive his arguments regarding the sufficiency of the evidence

made during his first appeal to this Court. This is impermissible, Rule 12-213(A)(4); see
18

also Clark, 1999-NMSC-035, ¶ 3 (“[W]e address only those issues properly before this

Court within the briefs of the parties.”), and thus we do not review this issue.

K. Abandoned Issues

{62} Defendant abandoned three issues, the admission of hearsay testimony regarding a

conversation between Hoff and a friend, the admission of Defendant’s prior criminal record,

and the State’s use of rebuttal witnesses, by failing to discuss them in his brief. See Clark,

1999-NMSC-035, ¶ 3.

IV. CONCLUSION

{63} Defendant’s convictions are affirmed.

{64} IT IS SO ORDERED.

____________________________________

PATRICIO M. SERNA, Justice

WE CONCUR:

EDWARD L. CHÁVEZ, Chief Justice 

PETRA JIMENEZ MAES, Justice

RICHARD C. BOSSON, Justice

CHARLES W. DANIELS, Justice

Topic Index for State of New Mexico v. Tracy Alvin Johnson, No. 29,664

AE APPEAL AND ERROR

AE-AP Appellate Rules and Procedure

AE-FE Fundamental Error

AE-PA Preservation of Issues for Appeal

AE-SR Standard of Review

AE-SB Substantial or Sufficient Evidence

CT CONSTITUTIONAL LAW

CT-FA Fourth Amendment
19

CT-FS Freedom of Speech

CT-FT Fair Trial

CT-NM New Mexico Constitution, General

CT-RF Right to Confrontation

CT-SL Self-Incrimination

CT-SU Suppression of Evidence

CT-TJ Trial by Jury

CL CRIMINAL LAW

CL-AC Accessory

CL-AA Aiding or Abetting

CL-FM Felony Murder

CL-PS Possession

CL-RB Robbery

CA CRIMINAL PROCEDURE

CA-CQ Courtroom Security

CA-EA Effective Assistance of Counsel

CA-EX Expert Witness

CA-FT Fair Trial

CA-PU Public Trial

CA-RV Right against Self-Incrimination

CA-RT Right to Confrontation

CA-SE Substantial or Sufficient Evidence

CA-WI Wiretaps

CA-WT Witnesses

EV EVIDENCE

EV-AE Admissibility of Evidence

EV-AV Availability of Witness

EV-CR Credibility of Witnesses

EV-HR Hearsay Evidence

EV-IM Impeachment

EV-PB Probative Value v. Prejudicial Effect

EV-RC Relevancy, Materiality, and Competency

EV-SS Substantial or Sufficient Evidence

EV-WT Witnesses

JR JURIES

JR-IJ Impartial Jury

JR-JS Jury Selection

JR-VD Voir Dire

JI JURY INSTRUCTIONS
20

JI-JI Jury Instructions, General