State v. Harold Ulibarri

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 NO. 30,120
3 STATE OF NEW MEXICO,
4 Plaintiff-Appellee,
5 v.
6 HAROLD ULIBARRI,
7 Defendant-Appellant.
8 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
9 James A. Hall, District Judge
10 Hugh W. Dangler, Chief Public Defender
11 Kathleen T. Baldridge, Assistant Appellate Defender
12 Santa Fe, NM
13 for Appellant
14 Gary K. King, Attorney General
15 Andrew S. Montgomery, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
1 DECISION
2 SERNA, Justice.
3 {1} Pursuant to Rule 12-102(A)(1) NMRA, Harold Ulibarri (Defendant) is before
4 this Court on direct appeal from his convictions for first degree murder and tampering
5 with evidence contrary to NMSA 1978, Sections 30-2-1(A)(1) (1963, as amended
6 through 1994) and 30-22-5(A) (1963, as amended through 2003), respectively. He
7 argues that the evidence presented at trial was insufficient to support his convictions.
8 He also argues that he was denied his constitutional right to a fair and impartial jury
9 when the district court refused to grant him a new trial on the following grounds: the
10 district court’s failure to produce one of the jurors for questioning after he allegedly
11 made an improper statement, alleged omissions and misrepresentations made by some
12 of the jurors on the jury questionnaires, and the jury having supposedly discussed
13 extraneous and prejudicial information during deliberations. Defendant’s contentions
14 are without merit and we therefore affirm his convictions and the denial of his motion
15 for a new trial.
16 I. BACKGROUND
17 {2} On October 30, 2005, Rhonda Gutierrez (Victim) was shot multiple times in her
18 home and died from her wounds. In connection with Victim’s death, Defendant was
19 tried for first degree murder, tampering with evidence, and breaking and entering.
20 The State’s theory of the case was that Defendant killed Victim, his girlfriend of
21 thirteen years and the mother of his two children, because he was angry that she was
2
1 leaving him for another man. The district court granted Defendant a directed verdict
2 on the breaking and entering charge and the jury found him guilty of first degree
3 murder and tampering with evidence.
4 A. Factual Background
5 {3} Prior to Victim’s death, she and Defendant had an approximately thirteen-year
6 relationship. They had two children. The family lived together in a mobile home in
7 Chama, with Victim’s grandparents, Jose and Antonia Gutierrez (“Grandfather” and
8 “Grandmother”). The relationship between Defendant and Victim was “off and on”
9 and, during the thirteen years, they separated and subsequently reconciled numerous
10 times.
11 {4} In May of 2005, Victim met Kenny Duran and they began to have a
12 relationship, though they kept it a secret. A few months after meeting Duran, Victim
13 asked Defendant to move out of the trailer. There is contradictory testimony as to
14 whether Defendant complied or remained living in the trailer. In the subsequent
15 months, Defendant made several attempts at reconciling with Victim, but she rejected
16 him. Defendant eventually learned of Victim’s relationship with Duran.
17 {5} On October 29, 2005, Duran picked Victim up from her home at about ten
18 o’clock so that they could go to a Halloween dance at a bar. When they were driving
19 away from Victim’s home, Duran noticed a truck that looked like Defendant’s parked
20 down the street with its parking lights on. After they had driven several blocks away,
21 Victim asked Duran to drive back to her home so that she could make sure she had
3
1 locked the door. When they returned to Victim’s home, they saw what appeared to
2 be Defendant’s truck parked in the driveway. Victim told Duran not to stop and to
3 just keep on driving. Both cars began to drive in the same direction on a parallel road
4 until they reached the main road, at which time Duran confirmed that it was Defendant
5 in the other truck. At that point, Defendant turned south; Duran turned north to avoid
6 a potential altercation. Victim was very upset. She called Defendant and angrily
7 asked him what he was doing at her home and told him that she did not want him
8 there. Duran and Victim continued to the bar.
9 {6} An employee of the liquor store attached to the bar where the couple went
10 testified that a truck that was consistent with Defendant’s parked across the street from
11 the bar where the driver “could see through the whole [bar].”
12 {7} At Victim’s home at about 2:00 a.m. that same morning, Grandmother awoke
13 because the trailer was very cold. She saw that the window in the children’s bedroom
14 had been removed. She went into the living room and found Defendant sitting there
15 with the lights off. Grandmother asked Defendant to replace the window. Defendant
16 replaced the window and then returned to the living room. Grandmother went back
17 to sleep and did not know what Defendant did at that point or when he left.
18 {8} After they spent the night in a hotel together, Duran drove Victim home at
19 about 7:00 a.m. the following morning. It was important that she arrive by 7:00 a.m.
20 because Defendant was supposed to return the children to her at that hour; he had
21 plans to go to Colorado that morning. However, when Victim arrived at home, the
4
1 children had not been dropped off, so she went directly to her room to lie down.
2 Grandmother had two brief conversations with Victim and then left to go to church
3 at about 7:55 a.m.
4 {9} Grandfather remained at home and watched a church program on television.
5 He was hard of hearing and had the volume turned up very loudly. During the
6 program, Defendant appeared without the children. He entered the kitchen and sat
7 down with or behind Grandfather for a few minutes. Grandfather testified that this
8 was unusual because Defendant was typically not friendly with him and “never even
9 talked” to him. After a few minutes, Grandfather saw Defendant go outside and drive
10 away quickly in his truck. At about 8:30 a.m., a neighbor saw Defendant’s truck
11 traveling “pretty fast” on a nearby road.
12 {10} Defendant then returned to the home and asked Grandfather to call Victim from
13 her room, explaining that he was afraid that she would be angry with him if he tried
14 to call her himself.
15 {11} Grandfather went into Victim’s room and saw her lying on the floor.
16 Grandfather put his hand over her heart and head and observed that she was cold.
17 Defendant wrapped Victim in a blanket, carried her to his truck, and drove her to a
18 medical clinic in Tierra Amarilla.
19 {12} The same neighbor that had earlier observed Defendant’s truck traveling fast
20 once again saw Defendant driving his truck, but at a slower speed than what he had
21 previously observed.
5
1 {13} An emergency medical technician met Defendant and Victim at the clinic. She
2 testified that she thought it was strange that Defendant had parked his truck at a
3 distance from the clinic’s emergency doors. She had to ask him to move the truck
4 closer so that they could transport Victim into the clinic more easily. She could not
5 get a pulse from Victim. Suspecting that a possible assault had occurred, the
6 technician called for law enforcement and the Office of the Medical Investigator.
7 {14} Various police officers responded, several of whom happened to be life-long
8 friends of Defendant. One of these friends, Officer Luis Martinez, delivered the news
9 to Defendant that Victim had died. At that time, there was little information about
10 what had happened to Victim; there had been no autopsy and the medical
11 professionals’ first observations led them to believe that Victim had been stabbed.
12 However, Officer Martinez witnessed a bullet fall from Victim’s body. He then
13 approached Defendant, who was seated in Officer Martinez’s police vehicle and
14 asked, “what’s going on; she is shot?” Defendant responded, “I know. I thought you
15 said she was cut.” Defendant made several other strange remarks to his law
16 enforcement friends, including, “[y]eah, I’ve been hunting, too, but it looks like I’m
17 going to be fucked now” and, when asked how long he had until retirement, “[n]ow
18 probably never.”
19 {15} The autopsy revealed that Victim died of multiple gunshot wounds. She was
20 shot three times—once in the head from close range, once in the shoulder, and once
21 in the cheek. Blood splatter stains were found in Victim’s bedroom. 0.22 caliber
6
1 bullets were recovered from Victim’s body and unfired 0.22 caliber cartridges were
2 found both in Defendant’s truck and near the window that was found open at Victim’s
3 home the previous evening. An empty Colt 0.45 revolver holster was found in
4 Defendant’s truck. The gun used to kill Victim was never found.
5 {16} The police conducted a gunshot residue test on Defendant and the results came
6 back negative, indicating no gunshot residue on Defendant’s hands. The police stated,
7 however, that Defendant had washed his hands while he was at the clinic, which could
8 have affected the results.
9 {17} Defendant claimed that at the time Victim was killed, he was purchasing fuel
10 and tobacco at a local gasoline station and convenience store. However, three store
11 clerks who were working at the gas station and convenience store that morning all
12 testified that Defendant did not come into the store at any time during that morning.
13 Additionally, Defendant testified that at around the time he was observed to be
14 following Victim and Duran, he had been scouting for elk. However, Officer
15 Martinez, also an experienced hunter, testified that it is not customary to scout for elk
16 late at night; hunters scout for elk in the early morning, or in the late afternoon and
17 evening.
18 {18} While in jail after his arrest, Defendant made several phone calls attempting to
19 persuade witnesses to change their statements. During one of the calls, Defendant
20 denied making the incriminating statement to Officer Tommy Martinez to the effect
21 that he was “going to be fucked now” and urged someone to contact the officer and
7
1 tell him to say that Defendant did not make that statement. Defendant also made a call
2 to someone and urged them to contact Grandmother and tell her that he was not at
3 Victim’s trailer at 2:00 a.m., but rather that he was there at 8:00 a.m. to fix the
4 window.
5 B. Proceedings Below
6 {19} Defendant was charged with first degree murder, breaking and entering, and
7 tampering with evidence and a six-day trial ensued. Near the end of the trial, the
8 district court alerted the parties that Juror Bill Martinez (Juror) had allegedly said in
9 front of other jurors that it was an “open and shut” case and that “there was no
10 evidence presented otherwise.” Defense counsel initially took no position, then
11 requested that Juror be questioned regarding the statement he made in the jury room,
12 and finally requested that he “be excluded from deliberations and designated as an
13 alternate.” The district court accordingly designated Juror as an alternate over the
14 State’s objection. The jury found Defendant guilty of first degree murder and
15 tampering with evidence.
16 {20} Through a post-trial investigation, Defendant discovered both that some jurors
17 had failed to disclose certain information on their juror questionnaires and that, during
18 deliberations, some jurors discussed an Española murder case in which a mistrial was
19 declared because the jurors could not reach unanimity. Claiming that his
20 constitutional right to a fair and impartial jury was violated, Defendant moved for a
21 new trial based on the district court’s refusal to produce Juror for questioning, the
8
1 omissions on the juror questionnaires, and the discussions of the Española mistrial
2 during deliberations. Defendant submitted affidavits of his trial counsel and an
3 investigator in support of the motion. After a hearing, the district court denied the
4 motion.
5 II. DISCUSSION
6 A. Sufficiency of the Evidence
7 {21} “The test for sufficiency of the evidence is whether substantial evidence of
8 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
9 reasonable doubt with respect to every element essential to a conviction.” State v.
10 Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks
11 and citation omitted). In applying this standard, an appellate court “review[s] the
12 evidence in the light most favorable to the guilty verdict, indulging all reasonable
13 inferences and resolving all conflicts in the evidence in favor of the verdict,” State v.
14 Rudolfo, 2008-NMSC-036, ¶ 13, 144 N.M. 305, 187 P.3d 170 (internal quotation
15 marks and citation omitted), and after reviewing the evidence as such, “[t]he relevant
16 question is whether . . . any rational trier of fact could have found the essential
17 elements of the crime beyond a reasonable doubt.” State v. Garcia, 114 N.M. 269,
18 274, 837 P.2d 862, 867 (1992). The reviewing court does not substitute its judgment
19 for that of the jury: “[c]ontrary evidence supporting acquittal does not provide a basis
20 for reversal because the jury is free to reject [the] [d]efendant’s version of the facts.”
21 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Nor does this
9
1 Court “evaluate the evidence to determine whether some hypothesis could be designed
2 which is consistent with a finding of innocence.” State v. Graham, 2005-NMSC-004,
3 ¶ 13, 137 N.M. 197, 109 P.3d 285 (internal quotation marks and citation omitted).
4 1. First Degree Murder
5 {22} Defendant asserts on appeal that there was insufficient evidence for a rational
6 jury to find that Defendant committed first degree murder beyond a reasonable doubt
7 because the State failed to prove deliberate intent. In New Mexico, first degree
8 murder includes “any kind of willful, deliberate and premeditated killing.” Section
9 30-2-1(A)(1). Deliberate intention is a decision “arrived at or determined upon as a
10 result of careful thought and the weighing of the consideration for and against the
11 proposed course of action.” UJI 14-201 NMRA. “Intent is subjective and is almost
12 always inferred from other facts in the case, as it is rarely established by direct
13 evidence.” State v. Sosa, 2000-NMSC-036, ¶ 9, 129 N.M. 767, 14 P.3d 32 (internal
14 quotation marks and citation omitted).
15 {23} Although Defendant emphasizes that the State did not proffer any “direct,
16 physical or biological evidence” from which a reasonable jury could convict him of
17 first degree murder, he also acknowledges that such evidence is not required and that
18 circumstantial evidence is sufficient to uphold a first degree murder conviction. See
19 State v. Motes, 118 N.M. 727, 729, 885 P.2d 648, 650 (1994); State v. Duran, 107
20 N.M. 603, 605, 762 P.2d 890, 892 (1988) (“Just because the evidence supporting the
21 conviction was circumstantial does not mean it was not substantial evidence.”),
10
1 superseded on other grounds by rule, Rule 11-801(D)(1)(a) NMRA (as amended
2 through 1995), as recognized in State v. Gutierrez, 1998-NMCA-172, ¶ 10, 126 N.M.
3 366, 969 P.2d 970. The crux of Defendant’s argument, then, is that the State’s
4 evidence was both circumstantial and tenuous and that it, “without more, [was] not
5 substantial evidence to support a deliberate intent to kill.” We disagree.
6 {24} Viewing the evidence in the light most favorable to the verdict, there is
7 substantial evidence to support the jury’s conclusion that Defendant killed Victim
8 with the deliberate intent to do so. The State presented evidence that Defendant was
9 upset that Victim had ended their thirteen-year relationship and was seeing someone
10 new. On the night before Victim’s murder, he followed her and her new boyfriend.
11 He entered Victim’s home through a window at 2:00 a.m. and was found sitting in the
12 dark. Defendant was at Victim’s home at about the time of her death. He did not
13 bring their children to her, as they had planned. He sat with Grandfather in the
14 kitchen, though Grandfather said that it was very unusual for Defendant to sit or speak
15 with him. Then he left the trailer suddenly and drove away very quickly. Defendant
16 claimed that he went to a local gas station, but three attendants denied ever seeing
17 him. When he returned to the home, he asked Grandfather to retrieve Victim.
18 {25} Defendant made several incriminating statements at the clinic. Primarily,
19 without being informed of Victim’s injuries, Defendant responded to Officer
20 Martinez’s inquiry about Victim being shot by saying, “I know . . . .” Defendant also
21 told the officers that he probably would never be able to retire and was “fucked now.”
11
1 {26} The same type of ammunition that was used to kill Victim was found in
2 Defendant’s truck and near where he had entered Victim’s trailer during the night.
3 {27} Finally, while in jail, Defendant called several people in an attempt to have
4 Officer Tommy Martinez and Grandmother change their statements more favorably
5 to him.
6 {28} Although the evidence of Defendant’s guilt is circumstantial, when it is viewed
7 in the aggregate, it is sufficient to affirm the jury’s conclusion that Defendant killed
8 Victim with the deliberate intent to do so. It cannot be said that the jury acted
9 irrationally in finding Defendant guilty of first degree murder beyond a reasonable
10 doubt. Therefore, his first degree murder conviction is affirmed.
11 2. Tampering with Evidence
12 {29} Defendant also argues that there was insufficient evidence to support the jury’s
13 finding of guilt for the tampering with evidence charge. Tampering is a specific intent
14 crime that “consists of destroying, changing, hiding, placing or fabricating any
15 physical evidence with intent to prevent the apprehension, prosecution or conviction
16 of any person or to throw suspicion of the commission of a crime upon another.”
17 Section 30-22-5(A); State v. Silva, 2008-NMSC-051, ¶ 18, 144 N.M. 815, 192 P.3d
18 1192. Intent is subjective; because there is rarely direct evidence of intent, it is often
19 inferred from the circumstances. State v. Motes, 118 N.M. at 729, 885 P.2d at 650.
20 “When there is no other evidence of the specific intent . . . to disrupt the police
21 investigation, intent is often inferred from an overt act of the defendant.” Duran,
12
1 2006-NMSC-035, ¶ 14. If there is neither direct evidence of the defendant’s specific
2 intent to tamper, nor evidence of an overt act from which the jury may infer such
3 intent, “the evidence cannot support a tampering conviction.” Silva, 2008-NMSC-
4 051, ¶ 18.
5 {30} Defendant asserts that the State’s theory was that since Victim was killed with
6 a 0.22 caliber gun and no weapon was recovered, Defendant must have hid it to
7 obstruct the investigation. He argues that there was no evidence that he owned or had
8 access to a 0.22 caliber gun and no evidence that he undertook an overt act to disrupt
9 the investigation. Defendant’s argument is flawed as it disregards the evidence
10 presented at trial and does not give the factfinder its proper deference.
11 {31} Although there was no evidence that Defendant owned a 0.22 caliber gun, there
12 was evidence in the record linking Defendant to a 0.22 caliber weapon: the 0.22
13 caliber bullet found in his truck. An empty holster was also found in Defendant’s
14 truck. Additionally, there was testimony that, at about the time of Victim’s murder,
15 Defendant was in the house, left suddenly, drove away quickly, and then returned.
16 Based on this evidence, a rational jury could have inferred that Defendant made an
17 overt act to either hide or dispose of the gun used in the murder. Defendant’s
18 tampering with evidence conviction is affirmed.
19 III. MOTION FOR NEW TRIAL
20 {32} Defendant argues that his constitutional right to have a fair and impartial jury
21 was violated because the district court abused its discretion in denying his motion for
13
1 a new trial. He moved for a new trial on three separate grounds: (1) the trial court’s
2 failure to produce Juror for questioning, (2) failure of certain jurors to answer
3 questions honestly during the jury selection process, and (3) improper discussion by
4 the jury of extraneous information. We affirm and address each argument in turn.
5 {33} “Because the trial judge has observed the demeanor of the witnesses and has
6 heard all the evidence, . . . the function of passing on motions for new trial belongs
7 naturally and peculiarly to the trial court.” State v. Smith, 104 N.M. 329, 333, 721
8 P.2d 397, 401 (1986), overruled on other grounds by Gallegos v. Citizens Ins. Agency,
9 108 N.M. 722, 731, 779 P.2d 99, 108 (1989). An appellate court “will not disturb a
10 trial court’s exercise of discretion in denying or granting a motion for a new trial
11 unless there is a manifest abuse of discretion.” State v. Moreland, 2008-NMSC-038,
12 ¶ 9, 144 N.M. 192, 185 P.3d 363 (internal quotation marks and citation omitted). “An
13 abuse of discretion occurs when the ruling is clearly against the logic and effect of the
14 facts and circumstances of the case.” Id. “We cannot say the trial court abused its
15 discretion by its ruling unless we can characterize it as clearly untenable or not
16 justified by reason.” Id. (internal quotation marks and citation omitted).
17 A. Failure to Produce Juror for Questioning
18 {34} After Juror’s “open and shut” comment was brought to the attention of both
19 parties, Defendant initially took no position, then requested that Juror be produced for
20 questioning, and finally urged that Juror be excluded from deliberations and
21 designated an alternate. There was a brief discussion in which the State voiced its
14
1 objection. In spite of the fact that Defendant did not make the proper showing to have
2 Juror substituted, see State v. Bojorquez, 88 N.M. 154, 156, 538 P.2d 796, 798 (Ct.
3 App. 1975) (holding that to have a juror dismissed and substituted, a party must show
4 (1) that the juror is unable to perform his or her duties and (2) that the juror’s inability
5 will prejudice the complaining party), and substitution was therefore not required, the
6 cautious trial judge substituted Juror anyway. Defendant now argues that the district
7 court’s failure to produce Juror for questioning denied him of his right to a fair trial.
8 {35} There was no abuse of discretion in the trial court’s denial of Defendant’s
9 motion for a new trial on the basis that Juror was not questioned for bias; in fact, it
10 was properly denied. “To allow a defendant to invite error and to subsequently
11 complain about that very error would subvert the orderly and equitable administration
12 of justice.” (internal quotation marks and citation omitted). “[A] defendant cannot
13 be permitted . . . to reverse his previous position simply because he gambled and lost.”
14 State v. Sanchez, 120 N.M. 247, 252, 901 P.2d 178, 183 (1995) (internal quotation
15 marks and citation omitted). Here, Defendant clearly advocated for substitution of
16 Juror: “I think [Juror] should be excluded from deliberations and designated as an
17 alternate.” Thus, any error that may have occurred was invited by Defendant. The
18 district court’s denial of Defendant’s motion for a new trial on the basis that he did not
19 have the opportunity to question Juror was not an abuse of discretion.
15
1 B. Failure of Jurors to Disclose Information on Jury Questionnaires
2 {36} Through a post-trial investigation, Defendant discovered that some of the jurors
3 failed to disclose information on the jury questionnaires: two jurors failed to disclose
4 drinking while intoxicated (DWI) convictions, two jurors failed to disclose that they
5 were victims of domestic violence, two jurors failed to disclose that they were
6 incapable of passing judgment on others, and one juror failed to disclose that she had
7 worked at the same casino as a witness in the case. Defendant argues that his right to
8 a fair and impartial jury was denied because these jury questionnaire omissions
9 prevented him from meaningful questioning during the jury selection process and
10 exercising necessary peremptory challenges. We disagree.
11 {37} There was no abuse of discretion in the trial court’s denial of Defendant’s
12 motion for a new trial on the basis that some of the jurors failed to disclose
13 information on the jury questionnaires. An appellate court, which reviews a claim that
14 alleged omissions or misrepresentations by a juror during voir dire necessitate a new
15 trial due to a denial of the claimant’s right to a fair and impartial jury, evaluates two
16 things: (1) whether the juror’s alleged omissions or misrepresentations were germane
17 to the juror’s capacity to serve as an impartial juror, and (2) whether the claimant
18 demonstrated actual prejudice as a result of the juror in question sitting on the jury.
19 See State v. Pierce, 109 N.M. 596, 599-600, 788 P.2d 352, 355-56 (1990) (plurality),
20 modified on other grounds by State v. Ortega, 112 N.M. 554, 561, 817 P.2d 1196,
21 1203 (1991). Where there is no relationship between the juror’s erroneous statements
16
1 and his or her capacity to sit as an impartial juror, a complaining defendant is not
2 entitled to relief. Id. at 600, 788 P.2d at 356. There is no prejudice unless the juror’s
3 misrepresentations bear on possible disqualification of that juror, so that it could be
4 asserted that the defendant’s trial was conducted in an atmosphere of impartiality. See
5 State v. Baca, 99 N.M. 754, 756, 664 P.2d 360, 362 (1983).
6 {38} Without explaining why, Defendant argues that the jurors’ alleged omissions
7 or misrepresentations were germane to the jurors’ abilities to be fair and impartial.
8 We conclude that the misrepresentations here—DWI convictions, history of domestic
9 violence, inability to pass judgment, and acquaintanceship with a witness—have no
10 relationship to the jurors’ capacities to be impartial, nor do they bear on the jurors’
11 possible disqualification or implicate the impartiality of the trial. The denial of
12 Defendant’s motion for a new trial on this basis is thereby affirmed.
13 C. Jurors’ Discussion of Another Murder Trial
14 {39} Finally, Defendant argues that he is entitled to a new trial, or at least an
15 evidentiary hearing, based on his post-trial discovery that some of the jurors discussed
16 a well-publicized Española murder case in which a mistrial was declared because the
17 jury could not reach a unanimous decision. Defendant claims that this discussion
18 tainted deliberation because jurors may have been pressured to reach unanimity in fear
19 of letting Defendant “get away with murder.” The district court ruled that pursuant
20 to Rule 11-606(B) NMRA, Defendant could not impeach the jury’s verdict.
17
1 {40} Rule 11-606(B) prohibits jurors from testifying to matters or statements that
2 occurred during deliberations, with the relevant exceptions that: “a juror may testify
3 about (1) whether extraneous prejudicial information was improperly brought to the
4 jury’s attention [or] (2) whether any outside influence was improperly brought to bear
5 upon any juror.” This exception is limited to “that information that relates . . . directly
6 to the case under consideration.” State v. Rivera, 1997-NMCA-102, ¶ 12, 124 N.M.
7 211, 947 P.2d 168. In order to impeach a jury’s verdict, a defendant bears the burden
8 of showing that the jury received extraneous information and that such information
9 “came to bear on the jury’s deliberations.” State v. Mann, 2002-NMSC-001, ¶ 19, 131
10 N.M. 459, 39 P.3d 124 (internal quotation marks and citation omitted).
11 {41} In Rivera, our Court of Appeals held that the defendant was not entitled to a
12 new trial because the jurors had watched the O.J. Simpson verdict during a break from
13 deliberation. 1997-NMCA-102, ¶ 6. The Court held that, since the jurors did not
14 violate their instructions and because the O.J. Simpson verdict “had nothing
15 whatsoever to do with th[e] case,” the defendant was not entitled to a new trial. Id.16 ¶ 12. Rather, the Court held that the extraneous exception of the rule should be
17 limited to “that information that relates . . . directly to the case under consideration.”
18 Id.19 {42} Rivera controls the outcome here. The Española murder case, like the O.J.
20 Simpson case in Rivera, had “nothing whatsoever” to do with the instant case. Id. To
21 apply the Rule 11-606(B) exception here would contradict not only our recognition
18
1 of its “very limited” nature, but also our policy which “ensur[es] freedom of
2 expression and debate, prevent[s] the harassment of jurors, insulat[es] the jury
3 decision-making process from public pressure, and secur[es] stability within the
4 system and finality of judgments.” State v. Mann, 2000-NMCA-088, ¶ 84, 129 N.M.
5 600, 11 P.3d 564. Thus, the district court’s determination that the discussion of the
6 Española case was not extraneous and prejudicial was not an abuse of discretion. The
7 denials of both Defendant’s motions for a new trial and for an evidentiary hearing are
8 affirmed.
9 IV. CONCLUSION
10 {43} Based on the forgoing analysis, we affirm Defendant’s first degree murder and
11 tampering with evidence convictions and the denial of Defendant’s motion for a new
12 trial.
13 {44} IT IS SO ORDERED.
14 _________________________________
15 PATRICIO M. SERNA, Justice
19
1 WE CONCUR:
2 _________________________________
3 EDWARD L. CHÁVEZ, Chief Justice
4 _________________________________
5 PETRA JIMENEZ MAES, Justice
6 _________________________________
7 RICHARD C. BOSSON, Justice
8 _________________________________
9 CHARLES W. DANIELS, Justice
20