{ "id": 720224, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Raymond L. GONZALES, a/k/a Loco a/k/a Mario a/k/a Joseph, Defendant-Appellant", "name_abbreviation": "State v. Gonzales", "decision_date": "1991-08-19", "docket_number": "No. 18955", "first_page": "544", "last_page": "554", "citations": [ { "type": "official", "cite": "112 N.M. 544" }, { "type": "parallel", "cite": "817 P.2d 1186" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "414 U.S. 1000", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11788834, 11788679, 11788937, 11788777, 11788649, 11789003, 11789072, 11788529, 11788888, 11788601, 11788732 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/414/1000-07", "/us/414/1000-04", "/us/414/1000-09", "/us/414/1000-06", "/us/414/1000-03", "/us/414/1000-10", "/us/414/1000-11", "/us/414/1000-01", "/us/414/1000-08", "/us/414/1000-02", "/us/414/1000-05" ] }, { "cite": "85 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769044, 2771395, 2771564 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0005-02", "/nm/85/0005-01", "/nm/85/0005-03" ] }, { "cite": "112 N.M. 554", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720271 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/nm/112/0554-01" ] }, { "cite": "110 N.M. 507", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716924 ], "weight": 2, "pin_cites": [ { "page": "517" }, { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0507-01" ] }, { "cite": "101 N.M. 595", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586387 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "601" }, { "page": "943" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0595-01" ] }, { "cite": "795 P.2d 1022", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "110 N.M. 330", "category": "reporters:state", "reporter": "N.M.", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "110 N.M. 517", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716983 ], "weight": 2, "pin_cites": [ { "page": "523" }, { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0517-01" ] }, { "cite": "109 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590337 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/nm/109/0541-01" ] }, { "cite": "100 N.M. 481", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588549 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "483" }, { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0481-01" ] }, { "cite": "721 P.2d 1309", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1986, "opinion_index": 0 }, { "cite": "104 N.M. 378", "category": "reporters:state", "reporter": "N.M.", "year": 1986, "opinion_index": 0 }, { "cite": "104 N.M. 461", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594983 ], "weight": 2, "pin_cites": [ { "page": "469" }, { "page": "1191" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0461-01" ] }, { "cite": "668 P.2d 308", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "opinion_index": 0 }, { "cite": "100 N.M. 192", "category": "reporters:state", "reporter": "N.M.", "year": 1983, "opinion_index": 0 }, { "cite": "100 N.M. 120", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588690 ], "weight": 2, "pin_cites": [ { "page": "123" }, { "page": "1270" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0120-01" ] }, { "cite": "103 N.M. 784", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711374 ], "weight": 2, "pin_cites": [ { "page": "787" }, { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0784-01" ] }, { "cite": "100 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588558 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nm/100/0297-01" ] }, { "cite": "655 P.2d 160", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "opinion_index": 0 }, { "cite": "99 N.M. 148", "category": "reporters:state", "reporter": "N.M.", "year": 1982, "opinion_index": 0 }, { "cite": "99 N.M. 117", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584575 ], "weight": 2, "pin_cites": [ { "page": "120" }, { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0117-01" ] }, { "cite": "653 P.2d 878", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "opinion_index": 0 }, { "cite": "99 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "year": 1982, "opinion_index": 0 }, { "cite": "98 N.M. 798", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582533 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/98/0798-01" ] }, { "cite": "101 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586377 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "10", "parenthetical": "although substantial evidence may exist to support the verdict, prosecutorial misconduct cannot be deemed harmless unless the evidence is so overwhelming that there is no reasonable probability that the misconduct contributed to the conviction" }, { "page": "623", "parenthetical": "although substantial evidence may exist to support the verdict, prosecutorial misconduct cannot be deemed harmless unless the evidence is so overwhelming that there is no reasonable probability that the misconduct contributed to the conviction" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0007-01" ] }, { "cite": "110 N.M. 304", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716982 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "313" }, { "page": "1005" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0304-01" ] }, { "cite": "95 N.M. 262", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575488 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "265" }, { "page": "1290" } ], "opinion_index": 0, "case_paths": [ "/nm/95/0262-01" ] }, { "cite": "917 F.2d 469", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10390 ], "opinion_index": 0, "case_paths": [ "/f2d/917/0469-01" ] }, { "cite": "99 N.M. 353", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584607 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "357", "parenthetical": "extent of voir dire left to sound discretion of trial court and limited only by essential demands of fairness" }, { "page": "432", "parenthetical": "extent of voir dire left to sound discretion of trial court and limited only by essential demands of fairness" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0353-01" ] }, { "cite": "87 N.M. 34", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835988 ], "weight": 2, "pin_cites": [ { "page": "36" }, { "page": "895" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0034-01" ] }, { "cite": "92 N.M. 533", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557146 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "537", "parenthetical": "standard of review on denial of motion for continuance is whether trial court abused its discretion to the prejudice or injury of defendant" }, { "page": "668", "parenthetical": "standard of review on denial of motion for continuance is whether trial court abused its discretion to the prejudice or injury of defendant" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0533-01" ] }, { "cite": "439 U.S. 357", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11330305 ], "weight": 5, "year": 1979, "pin_cites": [ { "page": "364" }, { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/us/439/0357-01" ] }, { "cite": "550 F.2d 577", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 988765 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/f2d/550/0577-01" ] }, { "cite": "611 F.2d 37", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 470014 ], "opinion_index": 0, "case_paths": [ "/f2d/611/0037-01" ] }, { "cite": "96 N.M. 456", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577409 ], "weight": 6, "pin_cites": [ { "page": "460" }, { "page": "1328" }, { "page": "459" }, { "page": "1327" } ], "opinion_index": 0, "case_paths": [ "/nm/96/0456-01" ] }, { "cite": "109 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590275 ], "weight": 7, "year": 1989, "pin_cites": [ { "page": "3" }, { "page": "1150" }, { "page": "4" }, { "page": "1151" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0001-01" ] }, { "cite": "107 N.M. 510", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597118 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "515" }, { "page": "1281" }, { "page": "516" }, { "page": "1282", "parenthetical": "doctrine of fundamental error applied to excuse failure to make proper objection below only if innocence of defendant appears indisputable or if question of guilt is so doubtful that it would shock conscience to permit conviction to stand" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0510-01" ] }, { "cite": "378 U.S. 52", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165037 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "79", "parenthetical": "defendant must demonstrate he testified under a grant of immunity before burden shifts to prosecution" }, { "page": "1609-10", "parenthetical": "defendant must demonstrate he testified under a grant of immunity before burden shifts to prosecution" }, { "parenthetical": "defendant must demonstrate he testified under a grant of immunity before burden shifts to prosecution" } ], "opinion_index": 0, "case_paths": [ "/us/378/0052-01" ] }, { "cite": "103 N.M. 40", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711334 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "42", "parenthetical": "quoting Kastigar, 406 U.S. at 460, 92 S.Ct. at 1665" }, { "page": "987", "parenthetical": "quoting Kastigar, 406 U.S. at 460, 92 S.Ct. at 1665" }, { "page": "45" }, { "page": "990", "parenthetical": "different prosecutor than one who elicits immunized testimony should handle prosecution of person who gave immunized testimony; steps should be taken to insulate such prosecutor and staff from exposure to immunized testimony" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0040-01" ] }, { "cite": "406 U.S. 441", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171486 ], "weight": 9, "year": 1972, "pin_cites": [ { "page": "460" }, { "page": "1665" }, { "page": "461-62" }, { "page": "1665" }, { "page": "460" }, { "page": "1664" } ], "opinion_index": 0, "case_paths": [ "/us/406/0441-01" ] }, { "cite": "38 L.Ed.2d 236", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "94 S.Ct. 353", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "85 N.M. 19", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771596 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0019-01" ] } ], "analysis": { "cardinality": 1304, "char_count": 31098, "ocr_confidence": 0.768, "pagerank": { "raw": 1.3124635023310726e-07, "percentile": 0.6247682779961303 }, "sha256": "9778e095f5f69dbe9632f81428ab913ecea7ca10f7fe0f62cf461e039c204636", "simhash": "1:7ec6f7527b8ab041", "word_count": 5000 }, "last_updated": "2023-07-14T17:49:39.380170+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BACA and FRANCHINI, JJ\u201e concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Raymond L. GONZALES, a/k/a Loco a/k/a Mario a/k/a Joseph, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nSOSA, Chief Justice.\nDefendant, Raymond L. Gonzales, appeals his 1989 convictions of felony murder and armed robbery. He was sentenced to nine years on the robbery conviction to run concurrent with life imprisonment on the murder conviction. Defendant alleges error concerning jury selection, admission and exclusion of certain evidence, and jury instructions, and raises other issues of alleged prosecutorial misconduct, improper communication by one juror, whether a taint hearing should have been held, and whether reversible cumulative error occurred. We affirm.\nToby Grogg and Kathy Chavez were stabbed to death in December 1987. Defendant and Richard M. Ortega were arrested for the killings, indicted on counts of murder, kidnapping, robbery, and conspiracy, and were tried separately with Ortega being tried first. Defendant testified in Ortega\u2019s 1988 trial under a grant of use and derivative use immunity pursuant to SCRA 1986, 5-116 and 11-412. The immunity agreement provided that defendant would be charged only with felony murder and armed robbery of Toby Grogg. Defendant admitted he was present when victim Grogg was killed, but maintained he was an innocent bystander and did not participate. According to defendant, Ortega solely was responsible for the robbery and murder of both victims. The state argued the impossibility of Ortega committing both murders without defendant\u2019s assistance.\nDefendant\u2019s June 1989 trial resulted in a mistrial because certain tape-recorded interviews with witnesses were provided to the defense on the eve of the trial. A second jury trial began in November with a verdict entered on November 21, 1989, and an amended judgment and sentence filed December 15, 1989. On appeal, defendant alleges the following errors:\n(1) the district court erred in not holding a taint hearing prior to defendant\u2019s trial;\n(2) defendant was denied a fair and impartial jury by the manner in which the venire and jury were selected;\n(3) defendant was denied a fair trial due to prosecutorial misconduct in voir dire and closing argument;\n(4) the district court erred by admitting defendant\u2019s testimony concerning his probation on an unrelated charge, the video deposition of witness Chavez, statements concerning threats by Ortega against witness Chavez, and evidence and argument concerning victim Chavez, which unfairly prejudiced defendant and denied him a fair trial;\n(5) the district court erred in excluding evidence of threats against defendant\u2019s life made by Ortega and a prior inconsistent statement by witness Casaus;\n(6) the district court erred in giving vague and unconstitutional jury instructions regarding aiding and abetting;\n(7) defendant was denied a fair trial due to improper contact between the court and a deliberating juror; and,\n(8) cumulative error deprived defendant of a fair trial. We address defendant\u2019s claims of error seriatim.\nTAINT HEARING\nDefendant claims fundamental error occurred by the court\u2019s failure to sua sponte order a taint hearing to determine if the state\u2019s evidence derived from sources independent of his immunized testimony given in Ortega\u2019s trial and at a pretrial deposition. Defendant argues the prosecution reviewed exhibits from Ortega\u2019s trial that included those testified to by defendant, and complains the record lacks certification by the state of its independent sources of its evidence. This issue is raised for the first time on appeal. See State v. Jaramillo, 85 N.M. 19, 508 P.2d 1316 (Ct.App.) (fundamental error doctrine allows court to reach questions that were not preserved properly for appeal in order to prevent miscarriage of justice when defendant has been deprived of rights essential to the defense), cert. denied, 85 N.M. 5, 508 P.2d 1302, cert. denied, 414 U.S. 1000, 94 S.Ct. 353, 38 L.Ed.2d 236 (1973).\nKastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), is the seminal case addressing the prohibition on prosecutors from using immunized testimony in any respect, direct or indirect, which may lead to the infliction of criminal penalties on the witness. \u201cKastigar requires that a defendant only show that he has testified under a grant of immunity. The prosecuting authorities then \u2018have the burden of showing that their evidence is not tainted [by exposure to prior immunized testimony] by establishing that they had an independent, legitimate source for the disputed evidence.\u201d State v. Munoz, 103 N.M. 40, 42, 702 P.2d 985, 987 (1985) (quoting Kastigar, 406 U.S. at 460, 92 S.Ct. at 1665); Murphy v. Waterfront Comm\u2019n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609-10, 12 L.Ed.2d 678 (1964) (defendant must demonstrate he testified under a grant of immunity before burden shifts to prosecution).\nOne raising a claim under [the immunity] statute need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.\nKastigar, 406 U.S. at 461-62, 92 S.Ct. at 1665.\nIt is uncontroverted that defendant, either before, during or after trial, failed to alert the court of his concern that the prosecution\u2019s evidence might have been derived from his immunized testimony given in Ortega\u2019s trial, nor did he object or question the source of the prosecution\u2019s evidence to adduce that it was untainted by his immunized testimony. Nevertheless, despite the lack of a Kastigar hearing, precautions were in place to avoid possible taint arising from defendant\u2019s immunized testimony. Two special prosecutors from the Fifth Judicial District, who had no connection to the Ortega trial, were appointed to try defendant\u2019s case. See Munoz, 103 N.M. at 45, 702 P.2d at 990 (different prosecutor than one who elicits immunized testimony should handle prosecution of person who gave immunized testimony; steps should be taken to insulate such prosecutor and staff from exposure to immunized testimony); see generally 22 C.J.S. Criminal Law \u00a7 79 (1989). Further, the record indicates that a pretrial conference was held after jury selection wherein the defense attorney, prosecutors, and trial judge recognized that defendant\u2019s immunized testimony could not be used in his trial. During the discussions, prosecutor Plath expressed concern with \u201cDefendant\u2019s use of the fact that he testified against Mr. Ortega to his own benefit in this case, in this trial.\u201d Defense counsel stated, and all agreed, that \u201c[i]t\u2019s clear it [defendant\u2019s immunized testimony] shall not be used.\u201d\nUnlike the cases cited by defendant wherein the prosecuting authorities had reviewed the immunized testimony, the record in the instant case suggests no knowledge by the prosecutors of the substance of defendant\u2019s immunized testimony, nor that they had access to it or reviewed it. In fact, after Ortega\u2019s November 1988 trial, the transcript of proceedings in his trial were not designated for appeal until April 1989, and were received in the supreme court on November 16, 1989. Jury selection in defendant\u2019s second trial took place on November 13 with his trial commencing the next day.\nAbsent defendant\u2019s failure to raise this issue in the trial court or question the source of the prosecution\u2019s evidence, we find no error in the court\u2019s failure to hold a taint hearing, and, thus, no fundamental error. \u201cThe doctrine of fundamental error is one to be applied only under exceptional circumstances and solely to prevent a miscarriage of justice.\u201d State v. Escamilla, 107 N.M. 510, 515, 760 P.2d 1276, 1281 (1988).\nJURY SELECTION\nDefendant objected to the jury selection from only lists of registered voters. He alleges this method is contrary to the 1989 amended provisions of NMSA 1978, Section 38-5-3 (Cum.Supp.1990), and asks this court to reconsider its opinion in State ex rel. Stratton v. Serna, 109 N.M. 1, 780 P.2d 1148 (1989). He further disputes that registered voters comprise an accurate cross-section of the community and that the jury selection process denied him his rights to a fair and impartial jury, equal protection, and due process.\nAlthough the amendment of Subsection A in Section 38-5-3, which enlarged the jury selection pool by adding driver\u2019s license holders, took effect on June 16, 1989, it contained no language invalidating the existing jury pools as renewal of the pool lists would not take place until ninety days following the next general election. Id. at 3, 780 P.2d at 1150. The first general election following the amendment was held in November 1990, one year after defendant\u2019s trial. The Serna court reasoned that the legislature did not intend immediate implementation, but that jury pool selection would continue to be renewed ninety days after every general election. Id. The court held that, until the next general election, jury selection using lists of registered voters continued to be a valid method from which to select a jury pool. Id. at 4, 780 P.2d at 1151. The legislature\u2019s intent to wait until after the 1990 general election to enlarge the jury pool to include nonvoting citizens with driver\u2019s license is not inconsistent with defendant\u2019s constitutional rights.\nThe issue raised by defendant that registered voters alone do not represent a fair cross-section of the community was addressed in State v. Lopez, 96 N.M. 456, 631 P.2d 1324 (Ct.App.1981). The court, quoting United States v. Coats, 611 F.2d 37 (4th Cir.1979), held that before one\u2019s constitutional rights are violated, a defendant must demonstrate that a cognizable or distinctive group has been systematically excluded or substantially underrepresented. 96 N.M. at 460, 631 P.2d at 1328. In order to establish that excluded persons comprise a distinct or cognizable group in the community, a defendant must show:\n(1) the presence of some quality or attribute which \u201cdefines and limits\u201d the group; (2) a cohesiveness of \u201cattitudes or ideas or experience\u201d which distinguishes the group from the general social milieu; and (3) a \u201ccommunity of interest\u201d which may not be represented by other segments of society.\nId. at 459, 631 P.2d at 1327 (quoting United States v. Test, 550 F.2d 577 (10th Cir. 1976)). Moreover, in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court held that to establish a prima facie violation of the fair cross-section requirement,\nthe defendant must show (1) that the group alleged to be excluded is a \u201cdistinctive\u201d group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.\nId. at 364, 99 S.Ct. at 668. Accordingly, defendant\u2019s claim must fail since he failed to satisfy his burden of establishing that registered voters in Bernalillo County do not represent a fair cross section of the community.\nVOIR DIRE\nDefendant also claims the trial court abused its discretion in denying his motion to continue voir dire so he could have additional time to review supplemental jury questionnaires. He also submits he was prejudiced because voir dire was conducted with a group of seventy-nine people during a three-hour period instead of smaller groups over a longer period of time, thus denying him his rights to effective assistance of counsel and a fair trial.\nWe find no abuse by the court in denying defendant\u2019s motion for continuance. See State v. Smith, 92 N.M. 533, 537, 591 P.2d 664, 668 (1979) (standard of review on denial of motion for continuance is whether trial court abused its discretion to the prejudice or injury of defendant). The record indicates the short amount of time to review the questionnaires was attributable to defendant\u2019s delay in preparing the questionnaire and bringing it before the court for its approval. Defendant first raised the issue of an additional questionnaire in a telephone hearing two months before the trial began with the court setting a deadline for submission of the questionnaire. Defendant failed to meet the deadline and filed a motion to allow the questionnaire to be given to the venire two weeks before trial was scheduled to begin. The court granted the motion three days later. The court\u2019s action cannot be characterized as unfair, arbitrary, or as manifest error. See State v. Kincheloe, 87 N.M. 34, 36, 528 P.2d 893, 895 (Ct.App.1974) (to establish abuse of discretion it must appear that court acted unfairly, arbitrarily or committed manifest error).\nRegarding defendant\u2019s other allegations, the record contains no indication that he requested to either voir dire the venire in small groups or extend the time in which to conduct voir dire. Moreover, before voir dire began the trial court explained to counsel that individual voir dire would be allowed if necessary. Thus, the record reveals no abuse of discretion by the court in the manner voir dire was conducted. See State v. Martinez, 99 N.M. 353, 357, 658 P.2d 428, 432 (1983) (extent of voir dire left to sound discretion of trial court and limited only by essential demands of fairness).\nCONDUCT OF THE PROSECUTOR\nDefendant claims the court erred in failing to grant any of his motions for mistrial, which were based upon certain remarks by the prosecutor during voir dire, cross-examination, and closing argument, and alleged to have deprived him of a fair trial. Defendant\u2019s claimed support in Mahomey v. Wattman, 917 F.2d 469 (10th Cir.1990), is misplaced in that Mahomey is a federal habeas corpus proceeding. In New Mexico, the granting of a mistrial lies within the discretion of the trial court and review is for abuse of that discretion. State v. Perez, 95 N.M. 262, 265, 620 P.2d 1287, 1290 (1980). We address defendant\u2019s individual allegations as follows.\n1. During voir dire, a discussion developed on the standard of proof required by the jury to find defendant guilty. The prosecutor, responding to a juror\u2019s comment, attempted to distinguish reasonable doubt and possible doubt by stating:\nThe law presumes the Defendant to be innocent unless and until you\u2019re satisfied beyond a reasonable doubt of his guilt. The burden is always on the State to prove guilt beyond a reasonable doubt. It is not required that the State prove guilt beyond all possible doubt. The test is one of reasonable doubt.\nDefendant claims the prosecutor\u2019s remarks were misleading and confused the jury by suggesting \u201cthat the jury could convict Defendant even if they had doubts about the case.\u201d\nThe prosecutor\u2019s remarks parallel the language of our jury instruction on presumption of innocence, reasonable doubt, and burden of proof, which was given as Instruction No. 2. See SCRA 1986, 14-5060. During one of several bench conferences held shortly thereafter, the court advised the prosecutor to go no further so as to not get \u201cinto the area of instructing the jury [as] that\u2019s the Court\u2019s job.\u201d The court believed the jury was not confused, and reminded defense counsel that he would have an opportunity to address any questions presented by the jury on the issue of reasonable doubt. The discussion concluded with the state asking if any member of the venire felt as if they could not follow the particular instruction. The court's action in controlling this portion of voir dire and in denying defendant\u2019s motion for mistrial was not an abuse of discretion.\n2. Defendant claims the state attempted to shift the burden of proof during closing argument when the prosecutor stated that if the jury believed beyond reasonable doubt that defendant was only a bystander, they should find him not guilty. No objection was made, however, nor was the statement claimed as the basis for any of defendant\u2019s motions for mistrial. Unless a prosecutor\u2019s remark constitutes fundamental error, review by an appellate court must be predicated upon a timely objection by a defendant. See State v. McGuire, 110 N.M. 304, 313, 795 P.2d 996, 1005 (1990). Here, we find the comment fails to rise to a level of fundamental error. At most, the comment was a harmless misstatement of the law in light of the overwhelming evidence against defendant. See State v. Hoxsie, 101 N.M. 7, 10, 677 P.2d 620, 623 (1984) (although substantial evidence may exist to support the verdict, prosecutorial misconduct cannot be deemed harmless unless the evidence is so overwhelming that there is no reasonable probability that the misconduct contributed to the conviction).\n3. Defendant objected to the state\u2019s comment during the rebuttal portion of its closing argument, on defendant\u2019s failure to call specific witnesses to testify. Defendant alleged the state improperly commented on his right to call witnesses, and made this claim the subject of one of his motions for mistrial. Defendant further contends that because the comment came in during the state\u2019s rebuttal, defendant was deprived of the opportunity to address it with the jury.\nComment during closing argument concerning the failure to call a witness is permitted. State v. Vallejos, 98 N.M. 798, 653 P.2d 174 (Ct.App.), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982). It is for the jury to estimate the value of an attorney\u2019s argument, thus counsel should be allowed considerable latitude of speech so long as extraneous facts are not injected or improper language used. State v. Ennis, 99 N.M. 117, 120, 654 P.2d 570, 573 (Ct.App.), cert. denied, 99 N.M. 148, 655 P.2d 160 (1982). The state\u2019s remarks were a permissible response to defendant's closing argument and no error was committed.\n4. Defendant claims he was unfairly prejudiced by the state\u2019s references to witness Chavez as defendant\u2019s \u201cpuppet\u201d and witnesses Chavez and Casaus as his \u201crunning buddies\", and the comments regarding Chavez\u2019s memory loss on the wifcness stand. No objections were made to these comments at trial, nor do they rise to the level of fundamental error. See Escamilla, 107 N.M. at 516, 760 P.2d at 1282 (doctrine of fundamental error applied to excuse failure to make proper objection below only if innocence of defendant appears indisputable or if question of guilt is so doubtful that it would shock conscience to permit conviction to stand). Accordingly, we find no merit to defendant\u2019s contention.\n5. Defendant objected to references made about Kathy Chavez and the manner of her death during closing argument. The curative instruction given by the trial court that argument of the attorneys is not evidence was sufficient to cure any prejudice from the remarks under these circumstances. See State v. Simonson, 100 N.M. 297, 669 P.2d 1092 (1983). Moreover, the trial court\u2019s ruling on the relevancy of the evidence regarding Kathy Chavez, excluding all photographs of her body, was proper in light of the impossibility of separation of the evidence of one victim\u2019s death from that of the other. Defendant was able to present his theory that, although he was present when victim Grogg was killed, he did not participate in the murder. In order for the state to establish its case \u2014 that it was impossible for Ortega to have committed the murders without defendant\u2019s assistance \u2014 the state was permitted to introduce evidence of each victim\u2019s physical size and strength as well as the circumstances surrounding the events. Given the theories of the prosecution and defense, the trial court did not abuse its discretion in admitting this evidence.\n6. During cross examination, the prosecutor questioned defendant regarding his probation, which stemmed from an unrelated charge. The prosecutor stated that the purpose behind the questioning was to show a motive for defendant\u2019s desire to leave the state, an issue first brought up on direct examination when defendant was asked if he wanted to go to California. Defense counsel\u2019s objection to questions concerning revocation of the probation was sustained, with the court limiting questions to issues of behavior and conditions of probation. Defendant\u2019s claim that he was prejudiced by this line of questioning is without merit.\nADMISSION OF EVIDENCE\nDefendant claims as error the admission of witness Raymond Chavez\u2019s videotaped deposition, contending the statements made during the deposition were redundant in light of the witness\u2019s testimony at trial, and allowed the state two opportunities to inject the same incriminating statements against defendant. The court admitted the video deposition as a prior inconsistent statement under SCRA 1986, ll-801(D)(l)(a) and as former testimony of a declarant who is unavailable as a witness under SCRA 1986, 11-804(B)(1). Regarding the second basis, the court found the witness\u2019s lack of memory made him unavailable to testify. A review of the witness\u2019s testimony supports the court\u2019s ruling \u2014 the witness repeatedly stated he could not remember events and details about which he previously testified during the deposition. Accordingly, we find no abuse of discretion by the court in admitting the video deposition of Raymond Chavez.\nNext, defendant challenged the introduction of evidence concerning victim Chavez, claiming it was more prejudicial than probative and denied him the right to a fair trial. He also alleges that any evidence relating to victim Chavez was irrelevant since he was not charged with committing any crime against her. As stated above, in light of the state\u2019s theory, it was permissible to introduce evidence of the circumstances surrounding the crimes, which could include evidence of the victim\u2019s size, strength, and injuries. The court did not abuse its discretion in admitting evidence on victim Chavez.\nEXCLUSION OF EVIDENCE\nDefendant alleges abuse of discretion by the court in excluding the following evidence: (1) Testimony by witness Chavez regarding an encounter with Deputy Mares, which was excluded as hearsay. Defendant claims that the failure of Deputy Mares to testify at trial was immaterial and that the proffered statements were admissions by a party opponent, the state, and should have been admitted under SCRA 1986, 11-801(D)(2) (hearsay exception for admission by party-opponent). (2) Testimony by corrections officers that Ortega made threats to them and Gonzales. Defendant claims that his fear of Ortega made more probable his claim that he was afraid to intervene to help the victims and cooperate with law enforcement officials during its investigation of the crimes. Defendant alleges the court abused its discretion in excluding the evidence, which had the effect of forcing him to convince the jury solely on his own testimony. (3) Testimony by witness Aragon concerning statements made by witness Casaus were excluded as hearsay. The state\u2019s objection was sustained because Casaus was not asked by the defense if he had made the statement, thus depriving him of the opportunity to admit, deny or explain pursuant to SCRA 1986, 11-613(B) (extrinsic evidence or prior inconsistent statement of witness). It is claimed that if permitted to answer Aragon would have testified that Casaus told him defendant had nothing to do with the killings. Defendant maintains the statement was offered not for its truth but to impeach Casaus, and should have been admitted in the interest of justice. Defendant contends the state could have put Casaus back on the stand during its rebuttal case and that the court abused its discretion in excluding Aragon\u2019s testimony in this regard.\nFor the court\u2019s error in excluding evidence to be prejudicial against defendant, improperly refused evidence must form an important part of defendant\u2019s case. State v. Chambers, 103 N.M. 784, 787, 714 P.2d 588, 591 (Ct.App.1986). Moreover, to warrant reversible error in the exclusion of testimony, defendant must show a reasonable probability that the court\u2019s failure to allow the testimony contributed to his conviction. State v. Garcia, 100 N.M. 120, 123, 666 P.2d 1267, 1270 (Ct.App), cert. denied, 100 N.M. 192, 668 P.2d 308 (1983). We find all of defendant\u2019s contentions to be without merit for the following reasons. First, the record demonstrates that defendant was not prevented from presenting evidence of Chavez\u2019s account of his encounters with Deputy Mares. Regarding the testimony of the corrections officers, the trial court found that any threats made by Ortega had no relevance to defendant\u2019s state of mind at the time of the murders or during the investigation. In addition, the court properly excluded Aragon\u2019s testimony, ruling that defendant waived his right to impeach Casaus with this statement by failing to lay a proper foundation pursuant to SCRA 1986, 11-613(B) (extrinsic evidence of prior inconsistent statement not admissible unless witness is afforded opportunity to explain or deny and opposite party is afforded opportunity to interrogate him thereon). While on the stand Casaus was not asked about the alleged remark made to Aragon. The record shows nothing to indicate whether Casaus would have admitted, denied, or otherwise qualified the statement had he been given the opportunity. In sum, we find no abuse of discretion by the trial court in excluding any of the evidence challenged by defendant.\nJURY INSTRUCTIONS\nDefendant submits that it was fundamentally unfair and a violation of the immunity agreement for the jury to be instructed on aiding and abetting when the agreement was silent on the issue. Defendant fails, however, to explain or cite authority to support his claim that the state\u2019s decision to prove the charges of felony murder and armed robbery on a theory of aiding and abetting violated the immunity agreement. The rule against using immunized testimony or evidence derived therefrom in a subsequent proceeding against a defendant does not generally prevent, restrict, or limit the prosecution from employing various theories in an attempt to prove the charges, so long as the proof derives from legitimate independent sources. See Kastigar, 406 U.S. at 460, 92 S.Ct. at 1664.\nAdditionally, defendant argues that the uniform jury instructions given, SCRA 1986, 14-2820 to -22, were deficient in that the terms \u201chelp\u201d and \u201cencourage\u201d were not defined, which could leave the jury in a position to speculate or guess in reaching its verdict. Although defense counsel argued at trial that these terms were too vague to allow the jury to determine guilt, no supplemental or any type of definitional instruction was tendered, nor did defendant request the court to amplify the meaning of the terms for the jury.\nGenerally, definitional instructions are not required when the terms are used in their ordinary sense and no error is committed in refusing to instruct on a term or word with a common meaning. State v. Mankiller, 104 N.M. 461, 469, 722 P.2d 1183,1191 (Ct.App.), cert. denied, 104 N.M. 378, 721 P.2d 1309 (1986). Here the terms \u201chelp\u201d, \u201ccause\u201d, and \u201cencourage\u201d are words with common meanings, thus not requiring definition for the jury, and the court\u2019s failure to give a definitional jury instruction was not error. See State v. Doe, 100 N.M. 481, 483, 672 P.2d 654, 656 (1983).\nCOMMUNICATION BETWEEN COURT AND JUROR\nDefendant contends the court violated his constitutional right to be present during every stage of his trial by communicating with a juror during deliberations outside of his presence. The record indicates that on November 20, 1989, the jury began deliberations after lunch, and, later that day, communicated to the court that it would like to remain longer that day to continue deliberations. After returning the following morning at 9:00 a.m. and deliberating for forty-five minutes, the jury reached its verdict. As soon as the attorneys arrived that morning the court notified them of the 8:15 a.m. communication by one of the jurors, who informed the court that her father had died the previous evening and asked if an alternate juror could be called in. The trial court refused the request and asked the juror if she could continue deliberating, to which she affirmatively replied.\nDefendant suggests that his claim is analogous to State v. Wilson, 109 N.M. 541, 787 P.2d 821 (1990). However, \u201cWilson acknowledged that not every instance of communication between a judge and juror during trial outside a defendant\u2019s presence was reversible error.\u201d State v. Haar, 110 N.M. 517, 523, 797 P.2d 306, 312 (Ct. App.), cert. denied 110 N.M. 330, 795 P.2d 1022 (1990). We distinguish this case from Wilson on two grounds. First, Wilson\u2019s conviction was reversed based on a finding of cumulative error to which the improper juror communication merely contributed. The reversal was not solely based upon the communication. Second, the juror in Wilson \u201cpersisted in making his objection to further service known to the judge * * * [and] had a far more disabling fear, namely that his religious convictions would mandate his complete incapacity to serve on the jury.\u201d Here the juror\u2019s request to leave jury service summarily was refused without persistence or objection on the part of the juror. Unlike Wilson, the trial judge in the instant case had no advance knowledge of the juror\u2019s personal circumstances and notified the attorneys within minutes of their arrival at the courthouse. We find no error in the way the communication was handled by the judge and no prejudice to defendant.\nCUMULATIVE ERROR\nFinally, defendant argues the cumulative impact of the individual errors alleged above denied him a fair trial. He cites State v. Martin, 101 N.M. 595, 601, 686 P.2d 937, 943 (1984), for the proposition that even if insufficient alone to rise to the level of reversible error, the cumulative impact of all errors so pervaded and infected the trial as to render it unfair.\n\u201cThe doctrine of cumulative error has no application where no errors were committed and where defendant received a fair trial.\u201d State v. Lara, 110 N.M. 507, 517, 797 P.2d 296, 306 (Ct.App.), cert. denied, 110 N.M. 330, 795 P.2d 1022 (1990). Having found no errors as alleged, we find no basis for defendant\u2019s claim that he was denied a fair trial grounded on alleged cumulative error.\nCONCLUSION\nDefendant has failed to persuade us that error was committed on any of the issues raised on appeal. Therefore, based upon the foregoing, defendant\u2019s conviction and sentence are affirmed in their entirety.\nIT IS SO ORDERED.\nBACA and FRANCHINI, JJ\u201e concur.\n. At the time of filing this opinion the case of State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991), was pending before this court.\n. With regard to the brief in chief on this point, we admonish defense counsel to follow carefully the rules of appellate procedure regarding citation to the record proper and transcript of proceedings. See SCRA 1986, 12-213(A)(3).", "type": "majority", "author": "SOSA, Chief Justice." } ], "attorneys": [ "Tom Udall, Atty. Gen., Margaret B. Al-cock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Gary C. Mitchell, P.C., Gary C. Mitchell, Ruidoso, Michael Slosberg, Albuquerque, for defendant-appellant." ], "corrections": "", "head_matter": "817 P.2d 1186\nSTATE of New Mexico, Plaintiff-Appellee, v. Raymond L. GONZALES, a/k/a Loco a/k/a Mario a/k/a Joseph, Defendant-Appellant.\nNo. 18955.\nSupreme Court of New Mexico.\nAug. 19, 1991.\nRehearing Denied Oct. 3, 1991.\nTom Udall, Atty. Gen., Margaret B. Al-cock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nGary C. Mitchell, P.C., Gary C. Mitchell, Ruidoso, Michael Slosberg, Albuquerque, for defendant-appellant." }, "file_name": "0544-01", "first_page_order": 578, "last_page_order": 588 }