State v. Barber ( 2012 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. 31,958
5 JORDAN ANDREW BARBER,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
8 Lisa C. Schultz, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 Karl Erich Martell, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VIGIL, Judge.
18 Defendant-Appellant Jordan Andrew Barber (Defendant) appeals from multiple
19 convictions for vehicle burglary, larceny, criminal damage to property, conspiracy,
1 and possession of burglary tools. We issued a notice of proposed summary
2 disposition, proposing to uphold the convictions. Defendant has filed a memorandum
3 in opposition. After due consideration, we remain unpersuaded. We therefore affirm.
4 Defendant has raised a single issue, challenging the exclusion of a recording of
5 a hearing at which one of the State’s witnesses was sentenced. [DS 7] The defense
6 sought to present this evidence in order to clarify that the witness had received
7 leniency in exchange for his testimony against Defendant. However, as we observed
8 in the notice of proposed summary disposition, this information was conveyed to the
9 jury in the course of the witness’s testimony at trial. On cross-examination the
10 witness specifically stated that the prosecutor had requested, and he had ultimately
11 received, an entirely suspended sentence in exchange for his testimony against
12 Defendant. [DS 6-7; MIO 2] Under the circumstances the recording would have
13 essentially constituted cumulative evidence, which the district court was well within
14 its discretion to exclude. See generally State v. Marquez, 1998-NMCA-010, ¶ 24, 124
15 N.M. 409, 951 P.2d 1070 (“[T]he trial court in its discretion may properly exclude
16 cumulative evidence.”).
17 In his memorandum in opposition Defendant takes issue with our
18 characterization of the recording as cumulative evidence, on the theory that the jury
19 had previously heard conflicting information relative to the witness’s sentence. [MIO
20 3] We acknowledge that the prosecutor’s questioning on the subject was less than
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1 ideally clear. [MIO 1-2] However, the witness unequivocally explained on cross-
2 examination that he had received an entirely suspended sentence in exchange for his
3 testimony against Defendant. [MIO 2] We perceive no basis for Defendant’s claim
4 of lingering ambiguity. [MIO 3-4] Insofar as the witness clarified the matter, we
5 reject Defendant’s suggestion that the jury had been presented with “two opposing
6 stories,” such that resort to the recording was necessary. [MIO 3]
7 Accordingly, for the reasons stated, we affirm.
8 IT IS SO ORDERED.
9 _______________________________
10 MICHAEL E. VIGIL, Judge
11 WE CONCUR:
12 _________________________________
13 CELIA FOY CASTILLO, Chief Judge
14 _________________________________
15 LINDA M. VANZI, Judge
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