This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 30,467 9 JAMES SNEED, JR., 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 12 Stephen K. Quinn, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh Dangler, Chief Public Defender 17 B. Douglas Wood III, Assi stant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20

MEMORANDUM OPINION 212 CASTILLO, Judge. 1 Defendant appeals from the district c ourt’s judgment and sentence, convicting 2 him pursuant to a jury trial, for trafficking cocaine and possession of marijuana. We 3 issued a notice of proposed summary dispos ition, proposing to affi rm. Defendant has 4 responded to our notice with a memorandum in opposition. We have considered 5 Defendant’s response and remain unpersuaded that the district court erred. 6 Accordingly, we affirm. 7 Defendant raises five issues on appeal. Hecontends that the district court erred: 8 (1) by not requiring the State to disclose the identity of the confidential informant, (2) 9 by permitting the State to play all five recordings of Defendant’s phone calls, (3) by 10 requiring the defense’s key witness to te stify while shackled and dressed in prison 11 clothing, (4) by refusing to grant Defendant a mistrial due to the prosecutor’s 12 comments in opening statements, and (5) by refusing to grant a mistrial for the 13 fundamental and cumulative error Defendant alleges. 14 Confidential Informant 15 Defendant claims that his confrontation rights were violated when the district 16 court refused to requiredisclosure of the identity of the confidential informant. [DS 17 7; MIO 4-6] Our notice observed that Defe ndant did not describe any facts indicating 18 why he should have been permitted to confront the confid ential informant (CI) at the 193 suppression hearing, what the State argued below, and the grounds upon which the 1 district court ruled. 2 Our notice also explained the following. Our review of the record indicated that 3 the district court ruled that the contents of the affidavits state facts showing the 4 information provided was reliable and esta blished probable cause to search the 5 apartment. [RP 85] Further, the district court ruled there is no evidence that the CI 6 was present during the searches or that his or her testimony would be helpful to 7 Defendant or that disclosure of the identity of the CI would be necessary for a fair 8 determination of his guilt or innocence. [RP 85, 255] 9 We noted that Rule 11-510(C)(2) NMRAmakes an exception to the state’s 10 privilege to refuse to disclose the identity of a confidential info rmant where it appears 11 that the “informer will be able to give te stimony that is relevant and helpful to the 12 defense of an accused, or is necessary to a fair determination of the issue of guilt or 13 innocence.” In determining whether nondisc losure of an informant’s identity was 14 proper, the district court should make a case-by-case decision, depending “on the 15 particular circumstances of each case, taking into consideration the crime charged, the 16 possible defenses, the possible significance of the informer’s testimony, and other 17 relevant factors.” State v. Campos , 113 N.M. 421, 424, 827 P. 2d 136, 139 (Ct. App. 18 1991) (internal quotation marks and citation omitted), reversed on other grounds by 194 117 N.M. 155, 870 P.2d 117 (1994). “On appeal, we review the trial court’s decision 1 denying disclosure of the identity of a confidential informant for an abuse of 2 discretion.” Id. 3 In Campos , we found no abuse of discretion by the district court in denying a 4 motion to conceal the identity of a CI when the informan t was not present during the 5 search of the premises or when the defendant was stopped and arrested. Id. In 6 Campos , the facts showed that the “informant was not a witness to any sale or [the] 7 defendant’s possession of the controlled substance found at the time of his arrest” and 8 that “the confidential informant conveye d information that defendant had been 9 distributing controlled substances and thathe would be engaging in illicit drug activity 10 on the morning that he was apprehended.” Id. We decided that the trial court, 11 therefore, “could properly conclude that the informant did not possess information 12 relevant to the preparation or presentati on of [the defendant’s] defense, or which 13 would exculpate [the] defendant from the charge against him.” Id. at 425, 827 P.2d 14 at 140. 15 Unpersuaded that disclosure was necessary in the current case under our rules 16 and case law, we stated in our notice that Defendant, similarly, was not charged with 17 a crime based upon the transaction witnessed by the CI. Rather, the evidence of the 18 crime was found during the execution of the search warrant. [RP 69] It appeared that 195 at various times during the month before th e search and arrest of Defendant, the CI 1 observed Defendant either selling or po ssessing large amounts of cocaine from his 2 residence. [DS 3; RP 60, 225] The record gave us no indication that the CI would “be 3 able to give testimony that [would be] rele vant and helpful to the defense of [the] 4 accused, or [would be] necessary to a fairdetermination of the issue of guilt or 5 innocence.” Rule 11-510(C)(2). In our noti ce, we proposed to affirm because without 6 more specific argument and informati on from Defendant, we saw no abuse of 7 discretion in the nondisclosure of the CI’s identity. 8 In response to our notice, Defendant ar gues that the disclosure of the CI’s 9 identity was necessary because the inform ation provided by the CI led the police to 10 their suspicion that Defendant was involve d in selling drugs and contributed to the 11 basis for the search warrant. [MIO 4-5] We fail to see how this differs from 12 information provided by any informant or why this informant’s identity should be 13 excepted from the prosecution’s privilege. Defendant also c ontends that the informant 14 could have provided relevant testimony that might have aided Defendant by verifying 15 his defense that Ms. Nivens was responsible for the drugs in the residence. [MIO 5] 16 Defendant gives us no indication why th e informant’s testimony might support his 17 defense beyond mere speculati on and assertion. Under these circumstances, we 18 cannot say that the district court abused its discretion by protecting the State’s 196 privilege. See Rule 11-510(C)(2). Therefore, we affirm this decision. 1 The Recordings 2 In his docketing statement, Defendant cl aimed that the district court erred by 3 permitting the State to play all five tape d conversations to the jury without first 4 making the tapes available to Defendant and by permitting the State to play as many 5 tapes as it wanted. [DS 7; MIO 6-7] Defendant states that the defense was provided 6 with actual copies of the tapes of three telephone calls Defendant made from prison, 7 but not the other two. [MIO 6] 8 The district court ruled that Defendantimpliedly consented to the monitoring 9 of his phone calls. [DS 4; RP 253] As we stated in our notice, the record indicates 10 that testimony was given that every inmate receives a handbook advising that phone 11 calls are recorded. [RP 168] Also, testimony indicated thatthere is a warning on the 12 phone stating that this phone call is being recorded and may be monitored at any time, 13 and that when a phone call is answered it states who is calling from the Curry County 14 Detention Center. [Id.] 15 The record suggests that the State gave Defendant notice of the State’s recorded 16 phone calls, that Defendant kne w about the conversations, that the State did not know 17 Defendant did not have all the tapes, and that Defendant did not request all the 18 recordings the State said that it had on file . [RP 169] The recordalso indicates that 197 the State disclosed the general content of the recorded statements and discussed it at 1 length at a motions hearing where both the State and the defense questioned 2 Defendant about the phone calls . [RP 208] Defendant gives us no indication that the 3 State failed to disclose the existence of the tapes and/or failed to make the tapes 4 available to Defendant, pursuant to the requirements of Rule 5-501(A) NMRA. On 5 these facts, we see no reversible error. 6 Also in his response to our notice, Defe ndant contends that the district court 7 should have excluded the taped conversations pursuant to the Rule 11-403 NMRA 8 balancing test, because the c onversations involved future behavior and therefore were 9 of little probative value. [MIO 7] Without more information, we disagree. 10 Presuming the conversations discussed futu re drug dealing, they would indicate a 11 pattern of behavior that is highly relevant. Defendant’s generalized allegations of 12 prejudice are not sufficient to show reversible error. See In re Ernesto M., Jr. , 1996- 13 NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“ An assertion of prejudice is not a 14 showing of prejudice.”); State v. Fernandez , 117 N.M. 673, 677, 875 P.2d 1104, 1108 15 (Ct. App. 1994) (“In the absence of prej udice, there is no reversible error.”). 16 Shackled Defense Witness 17 Defendant argues that the district court violated his rights to equal protection 18 and a fair trial by enforcing the policy that inmates must testify while shackled and 198 dressed in prison uniform, and requiring Ms. Ni vens, a key defense w itness, to testify 1 in that manner. [MIO 8-10] Defendant refers this Court to federal case law 2 prohibiting defendants from being compelled tostand trial before a jury in prison 3 clothes. [MIO 8-10] We see a materialdistinction between requiring a defendant to 4 stand trial and compelling an inmate witness to testify in prison clothing. 5 Furthermore, we do not see how Defendant was prejudiced. The defense theory was 6 that Ms. Nivens was responsible for havi ng the drugs in the re sidence; therefore, 7 Defendant already had implicated its key witness in crimin al behavior. We do not see 8 how Ms. Nivens’ appearance at trial would significantly blemish the jury’s view of 9 her character in a manner that rises to a violation of Defendant ’s constitutional rights. 10 Her appearance as an inmate could support the defense’s theory, not materially 11 damage it. For these reasons, we are not persuaded that Defendant has demonstrated 12 reversible error. 13 Prosecutor’s Comment in Opening Statement 14 Defendant contends that the districtcourt erred by denying his motion for a 15 mistrial when the State’s opening argumen t indicated that it had information that 16 Defendant was involved in past drug sales. [DS 7; MIO 11-14] 17 “If the trial judge believes that a prosecu tor’s impropriety is substantially likely 18 to cause a miscarriage of justice, the j udge should grant a defendant’s motion for a 199 mistrial. Otherwise, granting a mi strial motion is inappropriate.” State v. Reynolds , 1 111 N.M. 263, 266, 804 P.2d 1082, 1085 (Ct. App. 1990). A ruling on a motion for 2 a mistrial is addressed to the sound discretion of the trial court and will not be 3 disturbed absent a showing of abuse of discretion. See State v. McDonald , 1998- 4 NMSC-034, ¶ 26, 126 N.M. 44, 966 P.2d 752. An abuse of discretion occurs when 5 the ruling is clearly against th e logic and effect of the f acts and circumstances of the 6 case. We cannot say the trial court abused its discretion by its ruling unless we can 7 characterize it as clearly untenableor not justified by reason. State v. Rojo , 1999- 8 NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (filed 1998) (internal quotation marks 9 and citations omitted). 10 As we observed in our notice, it appearedthat the State pr esented evidence that 11 officers were investigating De fendant, that they had a sear ch warrant, that they found 12 drugs, and that the amount of drugs was “way more” than what could be for personal 13 use. [RP 164-71] This testimony would support the conclusion that Defendant was 14 indeed selling drugs. [RP 164-171] Because there was evidence presented that 15 Defendant was selling drugs, we proposed to affirm on the basis that the prosecutor’s 16 statement indicating that law enforcement had information that Defendant was 17 involved in past drug sales did not cause a miscarriage of justice. 18 In response to our notice, Defendant contends that the only evidence of 1910 possession with the intent to distribute that was presented to the jury was taken at the 1 time of the search. [MIO 12] He states that there was no eviden ce presented at trial 2 that Defendant was involved in drug dealing inthe past. [Id.] We are not persuaded 3 that the disparity in the factual support for the prosecutor’s comments about past 4 dealing and the testimony presented that o fficers had been investigating Defendant, 5 obtained a warrant, and found drugs is sufficien t to warrant a mistrial. Therefore, we 6 affirm the denial of Defendant’s motion. 7 Fundamental and Cumulative Error 8 Lastly, Defendant contends that he was denied a fair trial based on the 9 cumulative effect of irregularities and erro rs. [DS 7; MIO 14-15] Defendant does not 10 specify what he believes to be fundamental error, thus we address only his allegation 11 of cumulative error. 12 “The doctrine of cumulative error requi res reversal when a series of lesser 13 improprieties throughout a trial are found, in a ggregate, to be so prejudicial that the 14 defendant was deprived of the constitutional right to a fair trial.” State v. Duffy , 1998- 15 NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, modified on other grounds by State 16 v. Gallegos , 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828. The cumulative 17 error doctrine is strictly applied, and may not be successfully invoked if the record as 18 a whole demonstrates that the de fendant received a fair trial. State v. Trujillo , 2002- 1911 NMSC-005, ¶ 63, 131 N.M. 709, 42 P.3d 814. Wh en there is no error, “there is no 1 cumulative error.” State v. Aragon , 1999-NMCA-060, ¶ 19, 127 N.M. 393, 981 P.2d 2 1211. “We have noted on several occasions that a fair trial is not necessarily a perfect 3 trial.” State v. Allen , 2000-NMSC-002, ¶ 117, 128 N.M. 482, 994 P.2d 728. 4 Defendant argues that the district court should have declared a mistrial based 5 on all the errors he raises in his appeal, t ogether with the fact that the jurors had a 6 long, nine-hour day, they were hungry, and they quickly returned a guilty verdict. 7 [MIO 6; MIO 14] Our notice observed that Defendant did not provide this Court with 8 sufficient context to determine whether the conditions were particularly coercive or 9 oppressive for the jury, whether the jury wa nted to leave, whether the jury wanted 10 another time to deliberate, or if the evid ence of his guilt was not so overwhelming that 11 it required more deliberations. Also, Defe ndant did not state what other safeguards 12 he requested short of mistrial. Without mo re information, we were not persuaded that 13 a possibly tired and hungry jury denied Defendant a fair and impartial trial. 14 In response to our notice, Defendant doe s not present any new factual or legal 15 argument indicating why the conditions were oppressive to the jury. Because we are 16 neither persuaded that Defendant has established minor erro rs nor that he was denied 17 a fair trial, “[t]he doctrine of cu mulative error is not applicable.” Id. 18 For the reasons discussed in this opinion and in our notice, we affirm the district 1912 court’s judgment and sentence. 1 IT IS SO ORDERED. 2

___________________________________ 3 CELIA FOY CASTILLO, Judge 4 WE CONCUR: 5

__________________________________ 6 CYNTHIA A. FRY, Chief Judge 7

__________________________________ 8 TIMOTHY L. GARCIA, Judge 9