STATE OF NEW MEXICO v. ROBERT EARLEY

Robert Glenn Earley, convicted by a jury of first-degree murder, tampering with3

evidence, and kidnapping, raises eight issues on direct appeal to this Court: (1) the4

trial court erred by denying Defendant’s motion to suppress three statements he made5

to law enforcement officers, (2) the trial court erred by denying Defendant’s motion6

for a continuance, (3) the trial court erred by admitting graphic crime scene and7

autopsy photographs, (4) the trial court erred by limiting testimony of Defendant’s8

pharmacology expert, (5) the trial court erred in disallowing Defendant to recall his9

pharmacology expert to answer the State’s rebuttal testimony, (6) the trial court erred10

by excluding testimony of Defendant’s mother about statements the victim Emily11

Lambert made to her, (7) evidence to support the jury’s verdicts was insufficient, and12

(8) the trial court’s errors taken together constitute cumulative error. We affirm13

Defendant’s convictions by nonprecedential decision. See Rule 12-405(B) (“The14

appellate court may dispose of a case by nonprecedential order, decision or15

memorandum opinion . . . [where t]he issues presented have been previously decided16

. . . [, t]he presence or absence of substantial evidence disposes of the issue . . . [, or17

3

t]he issues presented are manifestly without merit.”).1

I. BACKGROUND2

{2} Late on March 1, 2014, Defendant and his girlfriend Emily Lambert began to3

argue while drinking together at the Blue Cactus Lounge located within the Stevens4

Inn in Carlsbad, New Mexico. Lambert left the lounge angry but later returned to the5

hotel for her belongings and announced that she was leaving Defendant. As a result,6

the two started to fight again. During the argument, Lambert bit Defendant on the arm,7

and Defendant responded by hitting her. He then proceeded to kick Lambert several8

times in the face and head until she was “knocked out” but still breathing.9

{3} Defendant placed the unconscious Lambert in the car and drove her behind a10

private residence 11.7 miles from the hotel on Potash Mines Road. Lambert was still11

unconscious when Defendant grabbed an air pump from the vehicle and hit her with12

it multiple times. He then wrapped a rope around Lambert’s neck, attached the other13

end of the rope to his car, and dragged her behind a barn to remove her from the area14

in back of the house where she might be seen. Because Lambert “looked pretty bad”15

and appeared not to be breathing, Defendant “hit her with [a] bar a couple of times”16

to ensure she would not suffer or “freeze to death.” Defendant then left Lambert’s17

body and returned to his hotel room to sleep, disposing of the bar on his return route.18

{4} When Defendant awoke in the morning on March 2, 2014, he returned to the19

4

Potash Mines Road property to see if Lambert was moving, and she was not. He1

disposed of the rope “to cover [his] tracks.” Later that morning, Defendant called 9112

and reported Lambert missing, explaining to the dispatcher that Lambert never3

returned to the Stevens Inn after telling Defendant she was leaving the bar with4

another man.5

A. The Police Investigations6

{5} Officer David Williams responded to the 911 call on that same day in the7

afternoon and met with Defendant outside his Stevens Inn hotel room to take a8

missing persons report. Defendant recounted that he and Lambert had a verbal9

altercation on the prior night at the hotel lounge and that Lambert became upset and10

left with another man. During the interview, Officer Williams did not observe any11

signs that Defendant was intoxicated. The officer returned to the Stevens Inn on the12

next day to follow up on the case and learned that Lambert had not returned.13

{6} On the same morning, Detective Robert Scott Naylor and Sergeant Blaine14

Rennie of the Carlsbad Police Department were assigned to investigate the case. The15

two officers met with Defendant, as the original reporting party, at his hotel room.16

Once again, Defendant claimed that he had an argument with his girlfriend and that17

she left the hotel bar with another man and never returned. After speaking with18

Defendant, the officers requested consent to search Defendant’s vehicle that was19

5

parked by an oil rig on a county road approximately thirty miles from the Stevens Inn.1

Defendant consented to the search and provided officers with his vehicle key and2

directions to the vehicle.3

{7} Upon returning to the hotel, the officers requested that Defendant accompany4

them to make a recorded statement at the police station, and he agreed. Officers5

transported Defendant, unrestrained, to the station because he did not have a car. At6

the police station, Defendant provided Rennie with a recorded statement, reiterating7

that he and Lambert argued at the hotel bar and that she left, but this time he said that8

he did not actually see her leave with another man. Rennie asked Defendant if he9

would be willing to take a polygraph examination on the following day, and again10

Defendant agreed. When the interview concluded, an officer drove Defendant back11

to the Stevens Inn. Officers conducted surveillance of Defendant’s room overnight.12

Neither officer identified signs of impairment in Defendant throughout their first day13

of encounters with him.14

{8} On the following morning, March 4, 2014, Defendant contacted Rennie to15

request a ride to the police station to participate in the polygraph exam. At16

approximately 10:00 a.m., Tim Argo of the Artesia Police Department administered17

a polygraph exam to Defendant at the Carlsbad Police Department. Before18

commencing, Argo reviewed a “Consent for Polygraph Examination” form with19

6

Defendant. In addition to a waiver of liability for the exam itself, the form also1

included an advisement of the polygraph examinee’s Miranda rights. Defendant2

consented to the polygraph exam and indicated that he understood his rights and3

wished to proceed. During an interview before the polygraph exam, Defendant4

responded in the negative to standard questions regarding whether he was under the5

influence of illicit drugs, alcohol, or prescription medication. Argo did not identify6

any signs of impairment in Defendant. The exam lasted several hours, at the end of7

which Argo informed Defendant that he had failed and that Rennie wished to speak8

with him.9

{9} After Argo notified Rennie and Naylor that Defendant failed the polygraph10

exam, the officers gave Defendant a break and lunch, and then both officers returned11

to interview him. The officers did not repeat Defendant’s Miranda rights prior to12

conducting the postpolygraph-exam interview. During this interview, Defendant13

provided a second version of events. This time he claimed that when Lambert left the14

bar she got into another man’s truck and that Defendant followed her and the15

unidentified man in his own vehicle to a “housing . . . area.” Defendant said that when16

he pulled up behind the other vehicle, the man came after him with a pipe and17

Lambert jumped in between the two men, which caused the man to hit her in the head18

with the pipe. Defendant stated that he got back into his vehicle and fled. When the19

7

interview ceased, Defendant directed Rennie, Naylor, and another officer to the1

housing location on Potash Mines Road.2

{10} At the residence, Defendant waited in the driveway, outside the patrol unit,3

while the three officers proceeded further onto the property and discovered Lambert’s4

body. Rennie walked back to Defendant and advised him that the officers found5

Lambert. While the other officers secured the crime scene, Naylor transported6

Defendant to the Carlsbad Police Station for additional questioning. Prior to7

conducting the brief interview, Naylor again read Defendant his Miranda rights, and8

Defendant acknowledged that he understood those rights and agreed to speak with9

Naylor. Defendant repeated the version of events provided in the interview conducted10

in the early afternoon after the polygraph exam. The interview began at 5:49 p.m. and11

lasted twenty-six minutes.12

{11} A short time later, at approximately 7:15 p.m., Detective Sergeant Allen13

Sanchez entered the interview room to further question Defendant. Sanchez did not14

readvise Defendant of his Miranda rights prior to conducting the interview, though15

he was aware an officer had provided Defendant with the Miranda warnings earlier.16

Sanchez did not observe any signs that Defendant was impaired during the course of17

conducting the interview. This time, Defendant confessed to a third version of events18

where during a struggle with Lambert he kicked her in the head multiple times until19

8

she was unconscious, took her to the residence on Potash Mines Road, beat her with1

an air pump when she regained consciousness, dragged her body, and left her.2

Defendant then guided Sanchez and Rennie to locations where he had placed evidence3

of the crime. He first directed the officers to the rope and a bag with Lambert’s4

clothes. However, because he was unable to lead officers to the air pump that evening,5

Defendant volunteered to help the officers locate it on the next day.6

{12} On the following morning, March 5, 2014, Sanchez retrieved Defendant from7

the jail, and they located the air pump that matched the description Defendant had8

provided. On the way back to the jail, Defendant spontaneously began giving Sanchez9

new information about the crime. Sanchez allowed him to speak but did not ask any10

questions until they returned to the jail. Outside the jail, Sanchez asked for11

Defendant’s permission to record a statement pertaining to the new information.12

Sanchez again advised Defendant of his Miranda rights, and Defendant responded that13

he understood them. Defendant expounded on details he had previously provided and14

admitted that Lambert never regained consciousness at the Potash Mines Road15

property, contrary to the statement he made on the previous day that he beat Lambert16

again at the property when she regained consciousness and they resumed fighting.17

B. Court Proceedings18

{13} On March 14, 2014, the State charged Defendant with first-degree murder, first-19

9

degree kidnapping, and tampering with evidence. At the conclusion of a nearly three-1

week jury trial, Defendant was convicted of all three charges. The jury also2

unanimously found that Defendant murdered Lambert with the intent to kill in the3

commission of the kidnapping, an aggravating circumstance for sentencing purposes4

under NMSA 1978, Section 31-20A-5(B) (1981). Defendant was sentenced to life5

imprisonment without the possibility of parole. He now appeals his convictions6

directly to this Court pursuant to Article VI, Section 2 of the New Mexico7

Constitution, which states that “[a]ppeals from a judgment of the district court8

imposing a sentence of death or life imprisonment shall be taken directly to the9

supreme court.” The facts relevant to the trial court’s rulings challenged on appeal are10

developed further below.11

II. DISCUSSION12

A. Defendant’s Motion to Suppress His Statements to Law Enforcement13 Officials14

{14} Prior to trial, Defendant moved to suppress one postpolygraph-exam statement15

he made to law enforcement on March 4, 2014, as evidence obtained in violation of16

Miranda v. Arizona, 384 U.S. 436 (1966), and two additional statements made on the17

same date as fruits of the first unlawfully obtained statement. See State v. King, 2013-18

NMSC-014, ¶ 3, 300 P.3d 732 (“In Miranda, the United States Supreme Court19

10

articulated a warning that law enforcement must give to a suspect before the suspect1

can be subjected to a custodial interrogation without compromising the suspect’s2

privilege against self-incrimination.” (citing Miranda, 384 U.S. 478-79)). Defendant3

primarily contended that he did not voluntarily, knowingly, and intelligently waive his4

Miranda rights prior to making his first postpolygraph-exam statement “because he5

was coming out from under the influence of alcohol” after “four days of continuous6

drinking.” Following a suppression hearing, the trial court disagreed and denied the7

motion, finding that Defendant was not in custody until officers discovered Lambert’s8

body on the afternoon of March 4, 2014, and was not impaired when speaking to law9

enforcement during periods of custodial interrogation.10

{15} On appeal, Defendant abandons his argument that the first statement was11

involuntary based on intoxication. See State v. Correa, 2009-NMSC-051, ¶ 31, 14712

N.M. 291, 222 P.3d 1 (“On appeal, issues not briefed are considered abandoned.”).13

Rather, Defendant asserts the trial court erred because the first interview was custodial14

and unwarned, rendering the remaining statements inadmissible as fruits of the15

poisonous tree. To support his contention that he was in custody for Miranda16

purposes, Defendant notes that he was interviewed at the police station and “badgered17

by his interrogators” such that “no reasonable person would feel free to leave.”18

Defendant does not challenge other statements that he made to law enforcement on19

11

March 2, 3, or 5, 2014.1

{16} “In reviewing a trial court’s denial of a motion to suppress, we observe the2

distinction between factual determinations which are subject to a substantial evidence3

standard of review and application of law to the facts[,] which is subject to de novo4

review.” State v. Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442 (alteration5

in original) (internal quotation marks and citation omitted). Determining whether a6

police interview constitutes custodial interrogation for Miranda purposes requires the7

application of law to facts. Id. We therefore review the trial court’s determination de8

novo, while giving deference to the court’s factual findings. Id.9

1. March 4, 2014, postpolygraph-exam statement to Sergeant Rennie and10 Detective Naylor11

{17} At issue is whether Defendant was in custody, thereby requiring a Miranda12

advisement, when Sergeant Rennie and Detective Naylor interviewed him following13

the failed polygraph exam. “A suspect’s Miranda rights attach only when he is the14

subject of a ‘custodial interrogation.’” Nieto, 2000-NMSC-031, ¶ 20 (citation15

omitted). “[W]hether or not an interview is custodial depends on whether there was16

a formal arrest or restraint on freedom of movement of the degree associated with a17

formal arrest.” Id. (internal quotation marks and citation omitted). “A suspect is also18

considered in custody if a reasonable person would believe that he or she were not free19

12

to leave.” State v. Munoz, 1998-NMSC-048, ¶ 40, 126 N.M. 535, 972 P.2d 847. This1

is an objective determination, and “the actual subjective beliefs of the defendant and2

the interviewing officer on whether the defendant was free to leave are irrelevant.” Id.3

(internal quotation marks and citation omitted).4

{18} In Nieto this Court determined that officers were not constitutionally required5

to advise the defendant of his Miranda rights prior to questioning in a murder case.6

See 2000-NMSC-031, ¶¶ 20-21. Though the defendant was questioned in the7

detective’s small office with his back to the wall, an officer was situated between the8

defendant and the doorway, and the office door was closed, the Court determined that9

these factors alone did not indicate that the “[d]efendant’s freedom of movement was10

restricted to an extent consistent with a formal arrest.” Id. ¶ 21. Rather, those facts11

combined with the trial court’s findings that the defendant agreed to accompany12

officers to the police station when asked, that he was free to leave or terminate the13

interview, and that he was provided with transportation to and from the police station14

were “consistent with routine, non-custodial police questioning.” Id. As a result, this15

Court affirmed the trial court’s ruling that the interview was noncustodial and that16

Miranda warnings were unnecessary. See id.17

{19} In the present case, a number of facts could support Defendant’s contention that18

he was in custody during the postpolygraph-exam interview: Defendant was19

13

questioned at the police station, the interview lasted several hours, and Defendant was1

escorted by an officer at all times while at the police station. See Munoz, 1998-NMSC-2

048, ¶¶ 42-43 (recognizing that the location and duration of the interrogation, as well3

as the fact that the defendant was the focus of the police investigation, could support4

a conclusion that the defendant was in custody but concluding that additional evidence5

in the record failed to demonstrate the defendant’s freedom as restricted in any way6

associated with formal arrest to constitute custody for Miranda purposes).7

{20} In this case as well, additional evidence presented at the suppression hearing8

supports the trial court’s ultimate determination that Defendant was not in custody9

during the postpolygraph-exam interview. Defendant initiated contact with police10

officers by filing a missing persons report. Officers then asked Defendant to11

participate in a polygraph exam at the police station, and he agreed to do so. On the12

morning of the exam, Defendant called Rennie’s cell phone to request a ride to the13

police station for the exam because he did not have a vehicle, and the officer14

responded by providing transportation for Defendant. During the postpolygraph-exam15

interview, officers provided Defendant with food, and Defendant took cigarette and16

bathroom breaks at will. An officer escorted Defendant during these breaks, in part17

to open the hallway door that automatically locked upon entering the bathroom.18

Officers did not block access to the door of the interview room. Rennie and Naylor19

14

testified that Defendant was free to leave at the time of the postpolygraph-exam1

interview. Defendant was not physically restrained at any time during the interview,2

his freedom of movement was not restricted in any significant way, and a review of3

the record does not reveal evidence that the officers’ interview method or the4

interview environment was unduly coercive. See State v. Chamberlain, 1991-NMSC-5

094, ¶ 17, 112 N.M. 723, 819 P.2d 673 (noting that Miranda warnings are not6

required “every time the police interview a suspect, even though there may be7

coercive aspects to the questioning; a coercive environment requiring warnings occurs8

only where there has been such a restriction on a person’s freedom as to render him9

in custody.” (emphasis added) (internal quotation marks and citation omitted)); State10

v. Swise, 1983-NMSC-071, ¶ 12, 100 N.M. 256, 669 P.2d 732 (concluding that the11

defendant was not in custody for Miranda purposes and noting that evidence12

“reflect[ed] no coercive atmosphere against which Miranda was developed to13

protect”). As in Nieto, these facts are indicative of routine, noncustodial police14

questioning. We affirm the trial court’s ruling that the May 4, 2014, postpolygraph-15

exam interview at the police station was noncustodial and that the officers were not16

constitutionally required to provide Defendant with Miranda warnings.17

2. March 4, 2014, statements to Detective Naylor and Detective Sanchez18

{21} Defendant claims the statements he made to Detective Naylor and Detective19

15

Sanchez later on March 4, 2014, following the discovery of Lambert’s body at the1

Potash Mines Road property must be suppressed as fruits of the first postpolygraph-2

exam statement he alleges to have been unlawfully procured. Because we conclude3

that the trial court did not err by admitting Defendant’s first postpolygraph-exam4

statement, Defendant’s argument fails. Moreover, Naylor again read Defendant his5

Miranda rights prior to questioning him at 5:49 p.m. Defendant acknowledged that6

he understood his rights and agreed to speak with Naylor. A short time later, Detective7

Sanchez entered the interview room to continue questioning Defendant on the same8

matter, but he did not readvise Defendant of his Miranda rights.9

{22} “A confession is not necessarily invalid because [Miranda] warnings . . . were10

not given in full each time the interrogation process was resumed after interruption.”11

State v. Gilbert (Gilbert I), 1982-NMSC-095, ¶ 12, 98 N.M. 530, 650 P.2d 814. In12

Gilbert I, this Court held that officers were not required to provide the defendant with13

“a second fresh and full Miranda warning” prior to a second interrogation when he14

had been advised of these rights twice that same day, “as recently as four hours15

before,” and when he expressed that he understood those rights. Id.16

{23} In this case, Defendant’s statements to Sanchez a short time after he was17

questioned by Naylor were not rendered inadmissible by Sanchez’s failure to18

separately advise Defendant of his Miranda rights before continuing the questioning.19

16

Defendant already had been advised of his rights prior to the polygraph exam at1

approximately 10:00 a.m. and again when Naylor interviewed him at 5:49 p.m.2

Following each set of warnings, Defendant indicated that he understood his rights and3

wished to proceed. After Naylor completed his brief twenty-six minute interview,4

Sanchez resumed questioning an hour later at approximately 7:15 p.m. The character5

of the interrogation did not change; Sanchez entered the interview room soon after6

Naylor and questioned Defendant in the same manner and on the same matter.7

Accordingly, we conclude that the trial court did not err by admitting Defendant’s8

March 4, 2014, statements into evidence.9

B. Defendant’s Motion for a Continuance10

{24} Defendant claims that the trial court erred by refusing to grant his motion for11

a continuance. “The grant or denial of a continuance is within the sound discretion of12

the trial court, and the burden of establishing abuse of discretion rests with the13

defendant.” State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135; see14

also State v. Smith, 1979-NMSC-020, ¶ 13, 92 N.M. 533, 591 P.2d 664 (“The standard15

of review on a denial for a motion for continuance is whether the trial court abused its16

discretion to the prejudice or injury of the defendant.”). When evaluating a trial court17

decision granting or denying a motion for continuance we look to a number of factors18

including19

17

“the length of the requested delay, the likelihood that a delay would1 accomplish the movant’s objectives, the existence of previous2 continuances in the same matter, the degree of inconvenience to the3 parties and the court, the legitimacy of the motives in requesting the4 delay, the fault of the movant in causing a need for the delay, and the5 prejudice to the movant in denying the motion.”6

State v. Gallegos, 2011-NMSC-027, ¶ 66, 149 N.M. 704, 254 P.3d 655 (quoting State7

v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20).8

{25} In applying these factors to the present case, we conclude that the trial court did9

not abuse its discretion in its ruling on Defendant’s motion for a continuance. On10

January 29, 2015, Defendant moved to continue the trial then scheduled for March 16,11

2015. In the motion and at a hearing on the matter, defense counsel requested that the12

court continue trial to August 2015, noting several reasons for the request including13

more time to accommodate defense counsels’ overloaded schedules, more time to14

allow newly assigned counsel acting as second chair to prepare for trial, more time to15

ascertain the proper procedures in a case with a potential sentence of life16

imprisonment without parole, more time to finalize supplemental jury questionnaires,17

and time to resolve several discovery matters. On appeal, Defendant asserts that the18

request had a sound basis and posed no inconvenience. Defendant does not articulate19

the prejudice that resulted from the trial court’s denial of his motion.20

{26} The record indicates that any concerns pertaining to discovery were resolved21

18

at the hearing on the motion for continuance. At the same hearing, former defense1

counsel also testified pertaining to case information that she transferred to new2

counsel when she left the Office of the Public Defender, stating that counsel serving3

as first chair was originally her second chair and was at all times privy to case-related4

information. She stated that the case was on schedule to move to trial when she left5

on December 26, 2014. The trial court noted it had initially set trial for January 20156

and then moved the setting to March 2015 to accommodate a request from defense7

counsel. The court did not believe it had another available setting for a year and8

expressed concern that Defendant would remain incarcerated during that time.9

Importantly, the trial court did not wholly deny Defendant’s request but rather granted10

a partial continuance to accommodate defense counsels’ schedules and workloads by11

moving the trial from the middle of March to the end of April. In this case, there is no12

showing that the trial court’s decision prejudiced Defendant, and the record reveals13

that the trial court did not abuse its discretion. Accordingly, we uphold the trial court’s14

ruling.15

C. Admission of Certain Crime Scene and Autopsy Photographs16

{27} Defendant asserts that the trial court improperly admitted six graphic autopsy17

photographs of Lambert, claiming they were redundant and irrelevant and should have18

been excluded because the danger that the photographs would unfairly prejudice19

19

Defendant substantially outweighed their probative value. For similar reasons,1

Defendant also asserts that the trial court improperly admitted twelve crime scene2

photographs.3

{28} “We review a trial court’s exercise of discretion in admitting allegedly4

prejudicial photographs under an abuse of discretion standard.” State v. Saiz, 2008-5

NMSC-048, ¶ 53, 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State6

v. Belanger, 2009-NMSC-025, ¶ 36 & n.1, 146 N.M. 357, 210 P.3d 783. “Photographs7

are relevant and admissible for the purpose of clarifying and illustrating testimony.”8

State v. Gilbert (Gilbert II), 1983-NMSC-083, ¶ 43, 100 N.M. 392, 671 P.2d 640.9

“The court may exclude relevant evidence if its probative value is substantially10

outweighed by a danger of . . . unfair prejudice.” Rule 11-403 NMRA.11

{29} In this case, the contested photographs were relevant to the State’s case at trial.12

The physician-employee of the Office of the Medical Investigator who processed13

Lambert’s autopsy referred to the photographs in his medical testimony to establish14

Lambert’s cause and manner of death. He also relied on photographs showing portions15

of Lambert’s body with redness in her abrasions to demonstrate that Lambert was still16

alive when Defendant brought her to the Potash Mines property and dragged her17

behind the barn. Additionally, the State offered the disputed crime scene photographs18

as relevant to reconstruction of the crime scene, in conjunction with testimony from19

20

the officer who managed the crime scene investigation and reconstruction team.1

{30} The admitted photographs were not unduly prejudicial to Defendant. The trial2

court held hearings, outside the jury’s presence, on defense counsel’s objections to the3

photographs. Prior to trial, the State voluntarily cropped certain photographs and4

omitted others to reduce potentially inflammatory effects. The trial court further5

requested that the State crop portions of some of the remaining contested photographs6

and, in one instance, excluded a photograph. The trial court proceeded cautiously by7

holding hearings outside the jury’s presence and reviewing each disputed photograph8

both for relevance and for potential prejudice. See Saiz, 2008-NMSC-048, ¶ 549

(concluding that a trial court did not abuse its discretion in admitting probative10

graphic photographs of the victim’s body because the trial judge “proceeded11

cautiously and prudently” by considering the basis for the Rule 11-403 decision12

outside the jury’s presence and by carefully selecting some photographs to admit13

while excluding others). We conclude that the trial court did not abuse its discretion14

by admitting the contested autopsy and crime scene photographs.15

D. Limitation on the Testimony of Defendant’s Pharmacology Expert16

{31} Defendant next contends that the trial court erred in restricting the testimony17

of defense expert Dr. Jose O. Rivera. Defendant’s entire defense rested on his claim18

of voluntary intoxication and subsequent inability to form the specific intent required19

21

to sustain a first-degree murder conviction. Defendant proffered Dr. Rivera’s1

testimony to demonstrate the effects of alcohol consumption and energy drinks on a2

person given a number of variables such as person’s “age, weight, speed of drinking,3

and whether any food was consumed.” Defendant also sought to solicit Dr. Rivera’s4

opinion, through a series of hypothetical fact patterns based on the underlying5

circumstances of this case, regarding Defendant’s possible blood alcohol6

concentration (BAC) and ability to plan and weigh consequences on the night of the7

homicide.8

{32} The day before trial, the State filed a Daubert motion to exclude Dr. Rivera’s9

testimony in its entirety, arguing in relevant part that Dr. Rivera’s opinions were based10

on assumptions and insufficient facts and were therefore “speculative and11

conjectural.” The trial court initially addressed the matter in a pretrial hearing on April12

29, 2015, but did not rule at that time, preferring instead to hear from Dr. Rivera13

himself prior to allowing or limiting his testimony for the jury. Accordingly, prior to14

Dr. Rivera’s testimony, the trial court qualified him as an expert and found his15

methodology reliable but expressed its concern that the factual foundation for his16

testimony was highly subjective as to the amount of alcohol Defendant actually17

consumed. As a result, the trial court limited Dr. Rivera’s testimony to the effects of18

alcohol consumption on a hypothetical person of a similar height, weight, and age as19

22

Defendant if that hypothetical person consumed what Defendant claimed he1

consumed. The trial court limited the State’s rebuttal expert similarly.2

{33} We review a trial court’s decision to admit or exclude expert testimony for an3

abuse of discretion. State v. Guerra, 2012-NMSC-014, ¶ 36, 278 P.3d 1031; see also4

State v. Downey, 2008-NMSC-061, ¶ 24, 145 N.M. 232, 195 P.3d 1244 (“An abuse5

of discretion arises when the evidentiary ruling is clearly contrary to logic and the6

facts and circumstances of the case.” (internal quotation marks and citation omitted)).7

We assume without deciding that the trial court properly qualified Dr. Rivera as an8

expert witness and that the methodology this expert utilized for calculating BAC was9

valid. The narrow question before this Court, then, is whether the trial court abused10

its discretion by limiting Dr. Rivera’s testimony based on concerns that the factual11

basis for the testimony was deficient as to what Defendant himself ingested on the12

night in question.13

{34} Rule 11-702 NMRA governs the admission of expert testimony or other14

scientific evidence. “[F]or scientific evidence to be admissible under Rule 11-702, the15

reasoning or methodology underlying the testimony [must not only be] scientifically16

valid, it also must be properly . . . applied to the facts in issue.” Downey, 2008-17

NMSC-061, ¶ 30 (second alteration in original) (internal quotation marks and citation18

omitted). “Expert testimony may be received if, and only if, the expert possesses such19

23

facts as would enable him to express a reasonably accurate conclusion as1

distinguished from mere conjecture.” Id. ¶ 32 (internal quotation marks and citation2

omitted). “Experts may, and often do, base their opinions upon factual assumptions,3

but those assumptions in turn must find evidentiary foundation in the record.” Id. ¶ 34.4

{35} In Downey, this Court concluded that the trial court improperly admitted the5

state’s expert testimony utilizing retrograde extrapolation because the extrapolation6

was “predicated on factual assumptions unsupported by the record.” Id. ¶¶ 1, 137

(“[R]etrograde extrapolation . . . calculates an individual’s prior BAC level on the8

basis of a subsequently administered BAC test.”). The state in that case failed to9

produce evidence, even circumstantial evidence, regarding when the defendant last10

consumed alcohol or how much alcohol the defendant consumed, rendering the11

expert’s underlying assumptions “mere guesswork” and the conclusions “mere12

conjecture.” Id. ¶¶ 34, 36.13

{36} In contrast, this Court determined in State v. Hughey that the expert witness14

possessed sufficient facts in support of the conclusion that the defendant was at her15

peak alcohol level at the time the accident occurred to then accurately apply retrograde16

extrapolation. See 2007-NMSC-036, ¶ 15, 142 N.M. 83, 163 P.3d 470; see also17

Downey, 2008-NMSC-061, ¶ 37 (distinguishing Hughey). The expert testified about18

the generally accepted time for an individual to reach a peak alcohol level and then,19

24

“working from the assumption that [the d]efendant stopped drinking at 8:30 p.m., as1

she told police,” concluded as to when the defendant likely reached her peak alcohol2

level. Hughey, 2007-NMSC-036, ¶ 15.3

{37} In this case, Defendant and the State presented conflicting circumstantial4

evidence surrounding Defendant’s alcohol consumption and level of intoxication. The5

evidence included witness testimony from employees and patrons of the Blue Cactus6

Lounge, officers who interviewed and interacted with Defendant, and Defendant’s7

own videotaped statements. The parties also stipulated to the admission of restaurant8

receipts detailing alcohol Defendant and Lambert purchased on the night of the9

homicide, and the State introduced receipts similarly detailing alcohol purchased10

specifically from the Blue Cactus Lounge. Dr. Rivera testified that he reviewed11

transcripts and videos as the basis for his expert opinion testimony but did not12

indicate, nor does the record show, that he examined or interviewed Defendant,13

reviewed Defendant’s history of alcohol use, or reviewed Defendant’s medical14

records. Unlike in Downey and Hughey, here there was no BAC determination for15

Defendant at any time from which an expert could extrapolate a more accurate BAC16

estimate pertinent to the time the homicide occurred.17

{38} Given that Dr. Rivera, like the expert in Downey, did not have the facts18

necessary to speak specifically to Defendant’s level of intoxication on the night of the19

25

homicide, the trial court did not abuse its discretion in limiting his testimony to the1

effects of alcohol on a hypothetical person bearing the same characteristics as2

Defendant under the circumstances of this case. To be certain, the trial court could3

have allowed Dr. Rivera to testify, as the expert in Hughey did, that he was working4

from the assumption that the facts were as Defendant reported them. Nevertheless,5

through Dr. Rivera’s testimony, Defendant was able to present the same information:6

that if a male sharing Defendant’s characteristics consumed the number and type of7

drinks Defendant claimed he consumed over a twelve-hour period, he would have a8

BAC of at least 0.35 milligrams in 100 milliliters of blood at the time of the murder.9

Dr. Rivera opined that at that level, such a person would be severely impaired and10

unable to plan and properly weigh the consequences of his actions. Defendant does11

not state how he was prejudiced by the hypothetical framing of the testimony under12

an assumption of the facts as Defendant perceived them, nor does the record reflect13

that Defendant was prejudiced in any way by the trial court’s ruling. Given defense14

counsel’s statement in opening argument that Dr. Rivera would testify about the15

effects of alcohol on a “person who has the height and weight of Robert Earley” and16

the evidence both parties presented to the jury throughout the trial pertaining to17

Defendant’s alcohol use and consumption, a reasonable jury could easily make the18

inference from the hypothetical person to Defendant. Accordingly, the trial court did19

26

not abuse its discretion in limiting Dr. Rivera’s testimony.1

E. Denial of Defendant’s Motion to Allow Testimony in Answer to the State’s2 Rebuttal Testimony3

{39} “[W]hat shall be permitted to go to the jury as rebuttal testimony is a matter4

entirely within the discretion of the trial court, and this discretion will not be disturbed5

except for gross abuse.” State v. Johnson, 1983-NMSC-043, ¶ 27, 99 N.M. 682, 6626

P.2d 1349 (alteration in original) (internal quotation marks and citation omitted). A7

review of the record indicates that the trial court did not abuse its discretion in8

disallowing Defendant from recalling Dr. Rivera at the conclusion of the rebuttal9

testimony of State expert Dr. Hwang.10

{40} Defendant sought to answer the rebuttal with expert testimony to challenge the11

narrow issue of the rate of alcohol metabolism Dr. Hwang chose to use in his12

calculations. Prior to Dr. Rivera’s testimony, Defendant learned of the difference in13

the two experts’ opinions regarding the rate at which the body metabolizes alcohol.14

The trial court therefore allowed Dr. Rivera to testify in the case in chief that the15

metabolism rate Dr. Hwang utilized was unsupported by the scientific literature,16

leaving open the possibility that if Dr. Hwang presented unexpected testimony,17

defense counsel could address the matter at that time. Dr. Rivera did testify that18

experts in his field would not use the maximum metabolism rate that Dr. Hwang used19

27

as a standard, a rate he characterized as “extreme.” In addition, defense counsel cross-1

examined Dr. Hwang on this issue. Consequently, Defendant was not denied the2

opportunity to introduce Dr. Rivera’s testimony, and any further testimony in answer3

to the State’s rebuttal would have been merely confirmatory. See State v. Doe, 1983-4

NMCA-012, ¶¶ 10-11, 99 N.M. 456, 659 P.2d 908 (“If evidence sought to be5

introduced [in answer to the State’s rebuttal witness] is . . . merely cumulative or6

confirmatory, its admission is within the discretion of the trial court.”). We hold the7

trial court properly exercised its discretion.8

F. Exclusion of Testimony Concerning Lambert’s Statement to Defendant’s9 Mother10

{41} Defendant sought to introduce testimony of his mother, Donna Earley, that11

Lambert previously told her that Lambert and her ex-husband “had frequent domestic12

issues that turned physical” and that she was proud of “putt[ing] [him] down on the13

ground.” Defendant claimed Lambert’s comments were relevant and admissible to14

illustrate Defendant’s state of mind on the night Lambert was murdered. Defendant15

further argued that the State had placed Lambert’s character into evidence, thereby16

opening the door for Defendant to counter that information. He claimed the statements17

were admissible under an exception to the hearsay rule as statements against18

Lambert’s interest. The trial court disagreed and prohibited Ms. Earley’s testimony19

28

about Lambert’s statements as impermissible hearsay and irrelevant to Defendant’s1

claims that he lacked the specific intent for first-degree murder.2

{42} We examine the admission or exclusion of evidence for abuse of discretion. See3

State v. Flores, 2010-NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641. Pursuant to Rule4

11-404(A)(1) NMRA, generally “[e]vidence of a person’s character or character trait5

is not admissible to prove that on a particular occasion the person acted in accordance6

with the character or trait.” In criminal cases, however, an exception exists that allows7

a defendant to offer “evidence of a victim’s pertinent trait” for the purpose of proving8

that the victim acted in conformity with that trait on a particular occasion. Rule 11-9

404(A)(2)(b). Rule 11-405(B) NMRA concerns methods for proving character and10

provides that in cases in which “a person’s character or character trait is an essential11

element of a charge, claim, or defense, the character or trait may also be proved by12

relevant specific instances of [the person’s] conduct,” in addition to proof in the form13

of reputation or opinion testimony. For example, “[w]hen a defendant is claiming self-14

defense, his or her apprehension of the victim is an essential element of his or her15

claim,” and consequently, “under Rule 11-405(B), evidence of specific instances of16

the victim’s prior violent conduct of which the defendant was aware may be admitted17

to show the defendant’s fear of the victim.” State v. Armendariz, 2006-NMSC-036,18

¶ 17, 140 N.M. 182, 141 P.3d 526, overruled on other grounds by State v. Swick,19

29

2012-NMSC-018, ¶ 31, 279 P.3d 747. Here, Defendant has not raised a theory of self-1

defense, and Lambert’s character is not an essential element of Defendant’s voluntary-2

intoxication defense. The trial court correctly ruled that testimony pertaining to3

Lambert’s statement was irrelevant to Defendant’s claims.4

{43} Moreover, Lambert’s statement to Ms. Earley is inadmissible hearsay. Hearsay5

is an out-of-court statement that is later “offer[ed] in evidence to prove the truth of the6

matter asserted.” Rule 11-801(C) NMRA. “The hearsay rule excludes from admissible7

evidence statements that are inherently untrustworthy because of the risk of8

misperception, failed memory, insincerity, ambiguity, and the like.” State v. Mendez,9

2010-NMSC-044, ¶ 19, 148 N.M. 761, 242 P.3d 328. Nevertheless, our rules of10

evidence provide exceptions to the inadmissibility of hearsay. See Rule 11-80211

NMRA. One such exception is Rule 11-804(B)(3) NMRA, which provides that the12

rule against hearsay does not exclude a statement against the declarant’s interest if the13

declarant is unavailable. A statement against interest is defined as a “statement . . .14

[that] was so contrary to the declarant’s proprietary or pecuniary interest or [that] had15

so great a tendency to invalidate the declarant’s claim against someone else or to16

expose the declarant to civil or criminal liability.” Id. This exception has no17

application here. There is no evidence that Lambert’s alleged statement was against18

any proprietary or pecuniary interest, nor would the statement have exposed Lambert19

30

to civil or criminal liability. Importantly, the record is devoid of “circumstantial1

guarantees of reliability sufficient to make the statement[] trustworthy and2

admissible.” Mendez, 2010-NMSC-044, ¶ 19. Consistent with Rule 11-804(B)(3), the3

trial court properly rejected Defendant’s argument.4

G. Sufficiency of Evidence to Support Defendant’s Convictions5

{44} In reviewing the sufficiency of the evidence, we consider the evidence “in the6

light most favorable to the State, resolving all conflicts and making all permissible7

inferences in favor of the jury’s verdict.” Id. ¶ 42 (internal quotation marks and8

citation omitted). The test for sufficiency of the evidence is whether substantial9

evidence exists that would allow a rational jury to find each element of the crime10

established beyond a reasonable doubt. See Id.11

1. Sufficient evidence supports Defendant’s deliberate intent to commit first-12 degree murder13

{45} Defendant argues that this Court should reverse his conviction for first-degree14

murder because there was insufficient evidence to support deliberate intent to commit15

murder as opposed to the killing being the result of a rash impulse. To establish first-16

degree deliberate murder, the State was required to prove beyond a reasonable doubt17

that Defendant killed Lambert with the deliberate intention to take away her life and18

that he was not intoxicated to the extent of being incapable of forming this intent. See19

31

NMSA 1978, § 30-2-1(A)(1) (1994) (“Murder in the first degree is the killing of one1

human being by another . . . by any kind of willful, deliberate and premeditated2

killing.”); UJI 14-201 NMRA (“The word deliberate means arrived at or determined3

upon as a result of careful thought and the weighing of the consideration for and4

against the proposed course of action,” and “a deliberate intention to kill” requires a5

“calculated judgment” to kill, although it “may be arrived at in a short period of6

time.”). “[I]f the State merely proves that the accused acted rashly or impulsively,7

rather than deliberately, and if the accused acted intentionally and without justification8

or provocation, then the facts would only support second-degree murder.” State v.9

Adonis, 2008-NMSC-059, ¶ 16, 145 N.M. 102, 194 P.3d 717.10

{46} Defendant relies on State v. Garcia, 1992-NMSC-048, 114 N.M. 269, 837 P.2d11

862, to argue there was insufficient evidence to prove the requisite mens rea beyond12

a reasonable doubt to sustain a conviction for deliberate-intent, first-degree murder.13

In Garcia, this Court held that not only was evidence insufficient to support an14

inference of deliberate intention in the stabbing death of the victim but that “[t]here15

was no evidence to support the jury’s conclusion that . . . [the defendant] decided to16

stab [the victim] as a result of careful thought; that he weighed the considerations for17

and against his proposed course of action; and that he weighed and considered the18

question of killing and his reasons for and against this choice.” Id. ¶ 28. The state’s19

32

evidence demonstrating that the defendant and the victim argued, reconciled, and1

argued again, ultimately resulting in the defendant stabbing the victim to death, was2

“consistent with a rash and impulsive killing” rather than a deliberate killing. See id.3

{47} The circumstances of this case are vastly distinct from those of Garcia, and this4

Court has concluded there was sufficient evidence for a rational jury to infer deliberate5

intent under factual circumstances similar to those here. For example, in State v.6

Duran, this Court concluded that a reasonable jury could infer deliberate intent based7

on evidence of a prolonged struggle, the large number of the victim’s wounds, and the8

defendant’s own statements. See 2006-NMSC-035, ¶¶ 9, 11, 140 N.M. 94, 140 P.2d9

515; see also State v. Astorga, 2015-NMSC-007, ¶ 65, 343 P.3d 1245 (concluding that10

the jury could have found that evidence of the defendant’s actions, including his own11

statements after the killing, aided in proving deliberate intention); Flores, 2010-12

NMSC-002, ¶ 22 (concluding that there was sufficient evidence of deliberate intent13

where the defendant stabbed the victim with a screwdriver “so many times that it14

evidenced an effort at overkill”); State v. Cunningham, 2000-NMSC-009, ¶ 28, 12815

N.M. 711, 998 P.3d 176 (concluding that evidence of the defendant returning to his16

vehicle to fire the fatal shot when the victim was incapacitated and defenseless could17

support a reasonable juror’s inference of deliberation). Further, “[n]ot only may18

Defendant’s acts before and during the crime provide evidence of intent, [but]19

33

evidence of flight or an attempt to deceive the police may prove consciousness of1

guilt.” Flores, 2010-NMSC-002, ¶ 23 (internal quotation marks and citation omitted).2

{48} In this case, the State presented substantial evidence at trial to raise a reasonable3

inference of deliberate intent. The jury could have found that Defendant (1) was upset4

by Lambert’s threats to leave following their argument, (2) rendered Lambert5

unconscious with multiple kicks to the head, (3) placed Lambert, unconscious and6

defenseless but still alive, in the vehicle and drove her to the more remote location7

11.7 miles from the hotel to finish killing her, (4) beat Lambert severely with an air8

pump causing the plastic to splinter and break, (5) affixed one end of a rope to his car9

and another to Lambert’s neck to drag her out of sight behind the barn, (6) then10

proceeded, by his own admission, to beat Lambert to death with a “bar,” (7) left the11

scene of the incident, (8) began getting rid of the evidence as he drove away, (9)12

returned the following morning to check on Lambert’s body, and (10) tried to deceive13

authorities by filing a missing persons report and then providing several different14

stories about what happened on the night in question.15

{49} The complexity of these extended activities also belies Defendant’s contention16

that he could not have formed specific intent due to voluntary intoxication. The jury17

also heard evidence from both parties regarding Defendant’s level of intoxication on18

the night of the homicide and was free to reject Defendant’s version of the facts. See19

34

State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that1

“[t]he fact finder may reject defendant’s version of the incident”). Reviewing the2

evidence in the light most favorable to the guilty verdict, we hold that there was3

sufficient evidence to support the jury’s conclusion that Defendant killed Lambert4

with the requisite deliberate intent to support a first-degree murder conviction.5

2. Sufficient evidence supports Defendant’s kidnapping conviction6

{50} To support a kidnapping conviction under New Mexico law, the State must7

prove an “unlawful taking, restraining, transporting or confining of a person by force,8

intimidation or deception, with intent . . . to inflict death, physical injury or a sexual9

offense.” NMSA 1978, § 30-4-1(A)(4) (2003); see also UJI 14-403 NMRA. Relying10

on State v. Jacobs, 2000-NMSC-026, 129 N.M. 448, 10 P.3d 127, for the proposition11

that the State “must show that the defendant’s actual purpose was different from the12

reason the defendant and alleged victim voluntarily associated with each other,”13

Defendant claims the State failed to meet its burden. This argument is entirely without14

merit.15

{51} The jury could have inferred from the State’s evidence that any voluntary16

association between Defendant and Lambert ceased in the hotel room when the couple17

began arguing and Defendant administered several blows to Lambert’s head, knocking18

her unconscious. See State v. Ortega, 2014-NMSC-017, ¶ 23, 327 P.3d 107619

35

(“Kidnapping may occur once the [v]ictim’s physical association with [the d]efendant1

[is] no longer voluntary.” (alterations in original) (internal quotation marks and2

citation omitted)). And the jury verdict for kidnapping was supported by substantial3

evidence. The State presented evidence that Defendant placed the unconscious4

Lambert in a vehicle and transported her from the Stevens Inn to the location on5

Potash Mines Road 11.7 miles away where he proceeded to beat her with an air pump,6

drag her behind a barn by tying one end of rope to her neck and the other to the7

vehicle, and then hit her repeatedly with a “bar.” The State presented medical8

testimony that Lambert was still alive when Defendant transported her from the hotel9

to the Potash Mines Road property. The State’s medical expert also testified that10

Lambert was still alive when she incurred injuries consistent with the cause of her11

death, blunt trauma and ligature strangulation. We conclude there was sufficient12

evidence at trial to support Defendant’s kidnapping conviction.13

3. Sufficient evidence supports Defendant’s conviction for tampering with14 evidence15

{52} Defendant appeals his conviction for tampering with evidence under NMSA16

1978, Section 30-22-5 (2003), arguing that there was insufficient evidence to support17

his conviction on this charge. The State had to prove the following elements beyond18

a reasonable doubt to convict Defendant of tampering with the evidence:19

36

1. [D]efendant placed the pump or rope;1 2 2. [By doing so, D]efendant intended to prevent the apprehension,3 prosecution or conviction of himself for murder;4 5 3. [D]efendant was not intoxicated from the use of alcohol at the6 time the offense was committed to the extent of being incapable7 of forming an intention to prevent the apprehension, prosecution8 or conviction of himself for murder.9 10 4. This happened in New Mexico on or about March 2, 2014.11

See § 30-22-5(A); UJI 14-2241 NMRA. 12

{53} “Tampering with evidence is a specific intent crime,” and the State must present13

“sufficient evidence from which the jury can infer that the defendant acted with an14

intent to prevent ‘apprehension, prosecution, or conviction of any person or to throw15

suspicion of the commission of a crime upon another.’” State v. Silva, 2008-NMSC-16

051, ¶ 18, 144 N.M. 815, 192 P.3d 1192 (quoting § 30-22-5(A)). “When there is no17

other evidence of the specific intent of the defendant to disrupt the police18

investigation, intent is often inferred from an overt act of the defendant.” Duran,19

2006-NMSC-035, ¶ 14.20

{54} In this case, there is sufficient evidence from which a reasonable jury could21

conclude that Defendant placed the air pump and rope in locations outside of22

Carlsbad, New Mexico, with the intent to prevent his own prosecution, apprehension,23

or conviction. Defendant, by his own admission, sought to “cover [his] tracks” by24

37

locating the rope and throwing it on the side of the road, disposing of his bloody pants1

in a gas station dumpster, wiping blood off the hotel room walls, and throwing away2

Lambert’s dress. Defendant further admitted that he threw the “bar” off to the side of3

the road when leaving the scene of the homicide. Defendant described to officers how4

he disposed of the evidence, and he led officers to the locations where he had placed5

the rope, a bag with Lambert’s clothing, and the air pump. Accordingly, we affirm6

Defendant’s tampering conviction.7

H. Cumulative Error8

{55} Finally, Defendant contends his convictions should be reversed because errors9

raised in this case “accumulate[d] to the point of rendering the verdict inherently10

unreliable.” “The doctrine of cumulative error applies when multiple errors, which by11

themselves do not constitute reversible error, are so serious in the aggregate that they12

cumulatively deprive the defendant of a fair trial.” State v. Roybal, 2002-NMSC-027,13

¶ 33, 132 N.M. 657, 54 P.3d 61. “The cumulative error doctrine is strictly applied and14

may not be successfully invoked if the record as a whole demonstrates the defendant15

received a fair trial.” State v. Guerra, 2012-NMSC-014, ¶ 47, 278 P.3d 1031 (internal16

quotation marks and citation omitted). We conclude that Defendant received a fair17

trial, and we have determined that there was no error. “[W]here there is no error to18

accumulate, there can be no cumulative error.” State v. Samora, 2013-NMSC-038, ¶19

38

28, 307 P.3d 328 (internal quotation marks and citation omitted). Accordingly,1

Defendant’s cumulative error claim is meritless

We hold that Defendant’s claims lack merit and affirm Defendant’s convictions for first-degree murder, kidnapping, and tampering with the evidence