{ "id": 1552734, "name": "STATE of New Mexico, Plaintiff-Appellee, v. David FERNANDEZ, Defendant-Appellant", "name_abbreviation": "State v. Fernandez", "decision_date": "1994-04-14", "docket_number": "No. 14681", "first_page": "673", "last_page": "682", "citations": [ { "type": "official", "cite": "117 N.M. 673" }, { "type": "parallel", "cite": "875 P.2d 1104" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "80 N.M. 198", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5353992, 5358695, 5359383 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0198-03", "/nm/80/0198-01", "/nm/80/0198-02" ] }, { "cite": "419 U.S. 1072", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6481347, 6481412, 6481765, 6482215, 6482312, 6481991, 6481482, 6482476, 6482388, 6482104, 6481882, 6482621, 6481567 ], "year": 1974, "pin_cites": [ { "page": "1092" } ], "opinion_index": 0, "case_paths": [ "/us/419/1072-01", "/us/419/1072-02", "/us/419/1072-05", "/us/419/1072-09", "/us/419/1072-10", "/us/419/1072-07", "/us/419/1072-03", "/us/419/1072-12", "/us/419/1072-11", "/us/419/1072-08", "/us/419/1072-06", "/us/419/1072-13", "/us/419/1072-04" ] }, { "cite": "524 P.2d 988", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2827489, 2821385, 2822746, 2823285, 2825498 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0372-03", "/nm/86/0372-02", "/nm/86/0372-05", "/nm/86/0372-04", "/nm/86/0372-01" ] }, { "cite": "86 N.M. 372", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2827489, 2821385, 2825498, 2823285, 2822746 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0372-03", "/nm/86/0372-02", "/nm/86/0372-01", "/nm/86/0372-04", "/nm/86/0372-05" ] }, { "cite": "419 U.S. 833", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6229472, 6226944, 6228483, 6228203, 6228812, 6226577, 6227538, 6227890, 6229142, 6227229, 6226302 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/419/0833-11", "/us/419/0833-03", "/us/419/0833-08", "/us/419/0833-07", "/us/419/0833-09", "/us/419/0833-02", "/us/419/0833-05", "/us/419/0833-06", "/us/419/0833-10", "/us/419/0833-04", "/us/419/0833-01" ] }, { "cite": "112 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720248 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "487", "parenthetical": "similar statement by prosecutor was harmless error which did not require reversal" }, { "page": "1109", "parenthetical": "similar statement by prosecutor was harmless error which did not require reversal" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0485-01" ] }, { "cite": "86 N.M. 351", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2823467 ], "weight": 2, "pin_cites": [ { "page": "354" }, { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0351-01" ] }, { "cite": "111 N.M. 654", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715204 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "662" }, { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0654-01" ] }, { "cite": "558 P.2d 619", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1976, "opinion_index": 0 }, { "cite": "90 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "year": 1976, "opinion_index": 0 }, { "cite": "89 N.M. 800", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2861233 ], "weight": 2, "pin_cites": [ { "page": "803-04" }, { "page": "72-73" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0800-01" ] }, { "cite": "670 P.2d 581", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "opinion_index": 0 }, { "cite": "100 N.M. 327", "category": "reporters:state", "reporter": "N.M.", "year": 1983, "opinion_index": 0 }, { "cite": "100 N.M. 440", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588588 ], "weight": 2, "pin_cites": [ { "page": "444" }, { "page": "1155" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0440-01" ] }, { "cite": "683 P.2d 44", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1984, "opinion_index": 0 }, { "cite": "101 N.M. 362", "category": "reporters:state", "reporter": "N.M.", "year": 1984, "opinion_index": 0 }, { "cite": "101 N.M. 377", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586469 ], "weight": 2, "pin_cites": [ { "page": "379" }, { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0377-01" ] }, { "cite": "110 N.M. 705", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716925 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "710", "parenthetical": "\"Generally, an instruction that parallels the language of the statute and contains all essential elements of the crime is sufficient.\"" }, { "page": "579", "parenthetical": "\"Generally, an instruction that parallels the language of the statute and contains all essential elements of the crime is sufficient.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0705-01" ] }, { "cite": "80 N.M. 190", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363746 ], "weight": 2, "pin_cites": [ { "page": "195" }, { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/nm/80/0190-01" ] }, { "cite": "87 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836475 ], "weight": 2, "pin_cites": [ { "page": "387" }, { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0383-01" ] }, { "cite": "114 N.M. 269", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731614 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "274", "parenthetical": "sufficiency of the evidence requires substantial evidence such that a rational jury could have found each element of the crime to be established beyond a reasonable doubt" }, { "page": "867", "parenthetical": "sufficiency of the evidence requires substantial evidence such that a rational jury could have found each element of the crime to be established beyond a reasonable doubt" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0269-01" ] }, { "cite": "113 N.M. 148", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723311 ], "weight": 2, "pin_cites": [ { "page": "149" }, { "page": "949" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0148-01" ] }, { "cite": "116 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727672 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "170", "parenthetical": "abuse of discretion requires the trial judge's action to be \"obviously erroneous, arbitrary, or unwarranted\"" }, { "page": "206", "parenthetical": "abuse of discretion requires the trial judge's action to be \"obviously erroneous, arbitrary, or unwarranted\"" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0156-01" ] }, { "cite": "92 N.M. 347", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557227 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "349", "parenthetical": "citations omitted" }, { "page": "550", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0347-01" ] }, { "cite": "116 N.M. 599", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727693 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "304" }, { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0599-01" ] }, { "cite": "42 L.Ed.2d 669", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "95 S.Ct. 662", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "86 N.M. 382", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824082 ], "weight": 2, "pin_cites": [ { "page": "382" }, { "page": "998" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0382-01" ] }, { "cite": "83 N.M. 626", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333038 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "627", "parenthetical": "such a finding sufficient under prior rule" }, { "page": "1074", "parenthetical": "such a finding sufficient under prior rule" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0626-01" ] }, { "cite": "105 N.M. 214", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598938 ], "weight": 2, "pin_cites": [ { "page": "219" }, { "page": "1201" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0214-01" ] }, { "cite": "100 N.M. 720", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588650 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "728", "parenthetical": "evidentiary ruling of trial court will not be disturbed absent an abuse of discretion" }, { "page": "250", "parenthetical": "evidentiary ruling of trial court will not be disturbed absent an abuse of discretion" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0720-01" ] }, { "cite": "614 P.2d 545", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1980, "opinion_index": 0 }, { "cite": "94 N.M. 628", "category": "reporters:state", "reporter": "N.M.", "year": 1980, "opinion_index": 0 }, { "cite": "93 N.M. 685", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568748 ], "weight": 2, "pin_cites": [ { "page": "693-94" }, { "page": "831-32" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0685-01" ] }, { "cite": "42 L.Ed.2d 59", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "95 S.Ct. 58", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "491 F.2d 460", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 203896 ], "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/f2d/491/0460-01" ] }, { "cite": "83 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335859, 5337835, 5332102, 5332151 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/83/0473-01", "/nm/83/0473-02", "/nm/83/0473-04", "/nm/83/0473-03" ] }, { "cite": "83 N.M. 484", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5336402 ], "weight": 2, "pin_cites": [ { "page": "485" }, { "page": "970" } ], "opinion_index": 0, "case_paths": [ "/nm/83/0484-01" ] }, { "cite": "115 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725504 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "20" }, { "page": "326" }, { "page": "20" }, { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0006-01" ] }, { "cite": "107 N.M. 603", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597084 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "608" }, { "page": "895" }, { "page": "608" }, { "page": "895" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0603-01" ] }, { "cite": "109 N.M. 21", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590309 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "25-6" }, { "page": "297-98" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0021-01" ] }, { "cite": "112 N.M. 544", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720224 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "549" }, { "page": "1191" }, { "page": "549" }, { "page": "1191", "parenthetical": "voir dire of seventy-nine prospective jurors in three-hour period within discretion" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0544-01" ] }, { "cite": "644 P.2d 1040", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "opinion_index": 0 }, { "cite": "98 N.M. 51", "category": "reporters:state", "reporter": "N.M.", "year": 1982, "opinion_index": 0 }, { "cite": "97 N.M. 575", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555072, 1555067, 1555127 ], "weight": 2, "pin_cites": [ { "page": "577-78" }, { "page": "180-81" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0575-01", "/nm/97/0575-02", "/nm/97/0575-03" ] }, { "cite": "26 B.R. 615", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6116942 ], "weight": 3, "pin_cites": [ { "page": "621" }, { "page": "622" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/br/26/0615-01" ] }, { "cite": "705 P.2d 1138", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1985, "opinion_index": 0 }, { "cite": "103 N.M. 287", "category": "reporters:state", "reporter": "N.M.", "year": 1985, "opinion_index": 0 }, { "cite": "103 N.M. 382", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711286 ], "weight": 2, "pin_cites": [ { "page": "389" }, { "page": "1199" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0382-01" ] }, { "cite": "841 P.2d 549", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1992, "opinion_index": 0 }, { "cite": "114 N.M. 501", "category": "reporters:state", "reporter": "N.M.", "year": 1992, "opinion_index": 0 }, { "cite": "114 N.M. 495", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731606 ], "weight": 2, "pin_cites": [ { "page": "500" }, { "page": "1266" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0495-01" ] }, { "cite": "847 P.2d 313", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1993, "opinion_index": 0 }, { "cite": "115 N.M. 79", "category": "reporters:state", "reporter": "N.M.", "year": 1993, "opinion_index": 0 }, { "cite": "92 N.M. 414", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557099 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "416" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0414-01" ] }, { "cite": "115 N.M. 80", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725440 ], "weight": 2, "pin_cites": [ { "page": "83" }, { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0080-01" ] }, { "cite": "101 N.M. 595", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586387 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "603", "parenthetical": "citations omitted" }, { "page": "945", "parenthetical": "citations omitted" }, { "page": "601" }, { "page": "943", "parenthetical": "cumulative error doctrine to be strictly applied and cannot be invoked if no irregularities occurred or if record as a whole demonstrates defendant received a fair trial" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0595-01" ] } ], "analysis": { "cardinality": 1409, "char_count": 31872, "ocr_confidence": 0.698, "pagerank": { "raw": 2.688124036150245e-07, "percentile": 0.8272621299542946 }, "sha256": "f408a13a7bf29ff6dc6af4f72e07892f482b86f7ffe752ef63d0959f4f531bb4", "simhash": "1:9d2a80359ef61f42", "word_count": 5211 }, "last_updated": "2023-07-14T15:10:41.727131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and ALARID, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. David FERNANDEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBLACK, Judge.\nOn December 4, 1991 David Fernandez (Defendant) was arrested by Taos County Police Officer David Romo and charged with driving while intoxicated (DWI), careless driving, and resisting arrest. On January 6, 1992, in his capacity as Chairman of the Taos County Commission, Defendant wrote a letter to Romo stating that he had received information indicating Romo and his wife were violating the guidelines of a federal food commodities program. Based on this letter, the New Mexico Attorney General\u2019s Office decided to add a witness intimidation count to the three pending misdemeanor charges. In addition, Defendant was facing embezzlement charges in an unrelated matter.\nFollowing a four-day jury trial, Defendant was convicted on the two misdemeanor offenses of careless driving and resisting arrest, and on one felony count of intimidating a witness. Defendant was acquitted on the DWI charge.\nDefendant raises thirteen points on appeal, but, in violation of SCRA 1986, 12-213(A)(1)(a) (Repl.1992) fails to list the legal issues in an index. Nonetheless, this Court has reviewed each of the arguments raised in Defendant\u2019s brief in chief and we address them here, combining some of Defendant\u2019s issues for purposes of our discussion. We find Defendant\u2019s arguments without merit, and we affirm.\nI. JUDICIAL BIAS AND MISCONDUCT\nDefendant\u2019s principal contentions on appeal revolve around the alleged judicial bias and misconduct of Judge Benjamin S. East-burn, who presided over both Defendant\u2019s DWI trial and Defendant\u2019s embezzlement trial. In support of his allegations, Defendant cites more than fifteen instances which he claims demonstrate Judge Eastburn\u2019s bias against him. However, Defendant\u2019s claims of judicial bias or misconduct are not supported by the record.\nOur Supreme Court has recognized the scope of the challenge a trial judge faces in remaining impartial:\nA trial judge must exercise great care to assure a criminal defendant a fair and impartial trial. This required fairness and impartiality may often run counter to natural human reaction, particularly where the case involves a heinous crime, or the demeanor of an attorney has been particularly disrespectful or antagonistic. Nonetheless, fairness and impartiality are required of a judge and necessitate that the judge \u201cbe patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom he deals in his official capacity.\u201d\nState v. Martin, 101 N.M. 595, 603, 686 P.2d 937, 945 (1984) (citations omitted).\nAs a general rule, \u201c\u2018a fair and impartial tribunal requires that the trier of fact be disinterested and free from any form of bias or predisposition regarding the outcome of the case.\u2019 \u201d Purpura v. Purpura, 115 N.M. 80, 83, 847 P.2d 314, 317 (Ct.App.) (quoting Reid v. New Mexico Bd. of Examiners in Optometry, 92 N.M. 414, 416, 589 P.2d 198, 200 (1979)), cert. denied, 115 N.M. 79, 847 P.2d 313 (1993). On the other hand it is also well settled that a party \u201ccannot establish bias merely by pointing to the judge\u2019s failure to accept his argument.\u201d State v. Cherryhomes, 114 N.M. 495, 500, 840 P.2d 1261, 1266 (Ct.App.), cert. denied, 114 N.M. 501, 841 P.2d 549 (1992). Rather, the test for resolving a claim that a judge is biased in favor of the State \u201cis whether the conduct of the judge deprived the defendant of a fair trial.\u201d State v. Muise, 103 N.M. 382, 389, 707 P.2d 1192, 1199 (Ct.App.), cert. denied, 103 N.M. 287, 705 P.2d 1138 (1985).\nWe note at the outset that, following the voluntary recusal of the two local district judges, Defendant stipulated to Judge East-burn. While not dispositive on the issue of judicial bias, it may also be relevant that Defendant was acquitted of DWI, the charge he seemed most concerned about in his dialogue with Officer Romo. At a minimum, Defendant\u2019s acquittal on the DWI charge reveals the jury\u2019s ability to distinguish the evidence presented at trial notwithstanding any allegedly improper conduct by Judge Eastburn and is therefore inconsistent with Defendant\u2019s contention that he was denied a fair trial. For the same reason, it also is noteworthy that Defendant was acquitted of all charges in his subsequent trial in which he was represented by the same counsel and which was also presided over by Judge East-burn.\nA. Voir Dire\nDefendant\u2019s first example of alleged judicial misconduct occurred during voir dire. Defendant complains that Judge Eastburn\u2019s refusal to allow defense counsel a five-minute recess to reconcile his own seating chart was an example of the type of judicial bias and misconduct which ultimately denied him a fair trial.\nThe record reflects, however, that defense counsel\u2019s request occurred shortly after the court had already begun to conduct its own voir dire. The record further reflects that in denying the recess, the court confirmed with defense counsel that counsel had all the names \u201cin order\u201d and \u201ccoded,\u201d and pointed out that counsel would have ample opportunity to organize his materials further during voir dire by the court and State.\nA judge\u2019s expressed desire to expedite resolution of a matter is not generally an indication of bias against either party. In re Bokum Resources Corp., 26 B.R. 615, 621 (D.N.M.1982); cf. State v. Turner, 97 N.M. 575, 577-78, 642 P.2d 178, 180-81 (Ct.App.1981) (denial of motions for continuance not proof of bias), cert. quashed, 98 N.M. 51, 644 P.2d 1040 (1982). The Supreme Court rejected a similar argument and held defense counsel was not entitled to continue voir dire so he could have additional time to review the supplemental jury questionnaires in State v. Gonzales, 112 N.M. 544, 549, 817 P.2d 1186, 1191 (1991). Finally, there is no evidence the court was predisposed towards refusing short recesses by the defense, since such requests were granted at other points in the trial.\nDefendant also argues the district court improperly limited his voir dire. The relevant New Mexico Rule of Criminal Procedure governing juror voir dire states:\nThe court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as [the court] deems proper, or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper.\nSCRA 1986, 5-606(A) (Repl.1992) (emphasis added).\nA review of the trial tapes reveals the district judge initially conducted his own examination of the jury panel, and then allowed counsel for both the Defendant and the State to conduct their own voir dire. The court\u2019s examination resulted in the dismissal for cause of a number of prospective jurors, after which defense counsel spent well over an hour in voir dire of the remaining jurors. Counsel for the defense examined the panel as a whole, as well as prospective jurors, at length. In sum, Defendant was permitted more than adequate voir dire by the court, consistent with his right to have a jury free from bias or prejudice. Cf. State v. Gonzales, 112 N.M. at 549, 817 P.2d at 1191 (voir dire of seventy-nine prospective jurors in three-hour period within discretion).\nIn raising this claim, Defendant appears to argue that any restriction on a party\u2019s voir dire by the court amounts to reversible error. Defendant cites no authority to support any such theory and it is inconsistent with well established New Mexico law. See, e.g., State v. Isiah, 109 N.M. 21, 25-6, 781 P.2d 293, 297-98 (1989). Moreover, Defendant has failed to assert any prejudice he may have suffered by the court\u2019s exercise of its supervision over voir dire. In the absence of prejudice, there is no reversible error. State v. Duran, 107 N.M. 603, 608, 762 P.2d 890, 895 (1988).\nB. The District Court\u2019s Conduct Regarding the Scope of the State\u2019s Investigation\nAt trial, the State called six witnesses, none of whom were involved in the Attorney General\u2019s investigation of the case. The defense was permitted to call Art Garcia, an investigator with the Attorney General\u2019s Office who was assigned to Defendant\u2019s case. On direct examination, Garcia testified regarding his involvement in the investigation, but the defense never questioned Garcia concerning the thoroughness of the investigation.\nOur review of the record suggests the court inquired into the relevance and probative value of the proffered evidence, then ruled it was admissible on cross-examination under limited circumstances. Defendant\u2019s only specific complaint is that in response to a specific question by defense counsel as to whether the Attorney General\u2019s Office had requested that Romo utilize an electronic listening device in Defendant\u2019s presence, the district court sustained an objection on the grounds of relevance and speculation. At trial, Defendant argued several theories in support of his defense that the charges were politically motivated. One of these theories involved an attempt by defense counsel to show that the prosecution\u2019s investigation was less thorough than the investigation it performed in a separate, unrelated case. Specifically, the court questioned defense counsel as to the nature of the defense which would justify calling the Attorney General and members of his staff to appear as witnesses at trial. The court stated that it did not understand \u201ccompleteness of an investigation\u201d as a legitimate defense. Judicial bias must be personal and cannot be based on adverse rulings. State v. Hernandez, 115 N.M. 6, 20, 846 P.2d 312, 326 (1993).\nC. The District Court\u2019s Conduct Regarding Defense Counsel\u2019s Opening Statement\nDefendant next argues that the district court made derogatory comments regarding the length of Defendant\u2019s opening statement. These comments appear to have been made outside the presence of the jury and Defendant alleges no prejudice. In the absence of prejudice, there is no reversible error. Duran, 107 N.M. at 608, 762 P.2d at 895; see also State v. Clark, 83 N.M. 484, 485, 493 P.2d 969, 970 (Ct.App.1971) (trial court\u2019s comments outside presence of the jury did not deprive defendant of a fair trial), cert. denied, 83 N.M. 473, 493 P.2d 958 (1972).\nD. The District Court\u2019s Response to Defense Objections\nDefendant raises numerous instances of alleged bias by the district court which all relate to the manner in which the court responded to defense objections. It appears that the court repeatedly attempted to have the parties follow a procedure whereby objections would be stated concisely and any further argument would be elicited by the court only if necessary. See SCRA1986,11611(A) (a judge has authority to exercise reasonable control over trial proceedings so as to ensure ascertainment of the truth and avoid needless time consumption). Where counsel attempted to circumvent this procedure and argue the merits of the objection in front of the jury, Judge Eastburn admonished them. Judicial bias must be personal and cannot be predicated upon enforcement of the rules of criminal procedure. Hernandez, 115 N.M. at 20, 846 P.2d at 326.\nSimilar claims were considered in In re Bokum Resources. Addressing the argument that the bankruptcy judge showed bias by his harsh tone, Judge Burciaga said:\nSuffice it to say that the transcripts show Judge Keller\u2019s statements to be free from any indication of animosity towards Bokum\u2019s counsel. If indeed the judge became angry, that anger would be understandable in light of the insistence of Bokum\u2019s counsel on pursuing meritless motions and his repeated attempts to introduce evidence to which objections had previously been sustained. \u201cJudges, while expected to possess more than the average amount of self-restraint, \u00e1re still only human. They do not possess limitless ability, once passion is aroused, to resist provocation.\u201d United States v. Weiss, 491 F.2d 460, 468 (2d Cir.), cert. denied, 419 U.S. 833, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974).\nIn re Bokum Resources, 26 B.R. at 622.\nDefendant specifically claims his counsel was \u201cscreamed at by the trial judge.\u201d Defendant refers this Court to three instances in support of his claim. After listening to the pertinent portions of the trial tapes, we do not agree with Defendant\u2019s characterization of Judge Eastburn\u2019s tone. In one of the instances Defendant calls our attention to, we recognize that the judge was speaking louder than he had previously; however, the judge was not \u201cscreaming.\u201d In fact, the judge\u2019s raised tone of voice was in direct response to defense counsel\u2019s raised voice and defense counsel\u2019s continued interruption of the judge as the judge attempted to clarify a legal point with the jury.\nWe find no indication of bias or animosity in his tone of voice or the fact he required both sides to voice their evidentiary objections without making a jury argument. Cf. Grammer v. Kohlhaas Tank & Equip. Co., 93 N.M. 685, 693-94, 604 P.2d 823, 831-32 (Ct.App.1979) (counsel argument in front of jury under the supervision of the trial court which has wide discretion in that regard), cert. denied, 94 N.M. 628, 614 P.2d 545 (1980).\nE. Evidentiary Rulings\nDefendant next argues that the district judge demonstrated his partiality by his various evidentiary rulings regarding the December 6 letter and other matters. The admission or exclusion of evidence is within the discretion of the district court. See State v. Worley, 100 N.M. 720, 728, 676 P.2d 247, 250 (1984) (evidentiary ruling of trial court will not be disturbed absent an abuse of discretion). Again, judicial bias cannot be predicated upon unfavorable evidentiary rulings. State v. Williams, 105 N.M. 214, 219, 730 P.2d 1196, 1201 (Ct.App.1986). The mere fact that a judge has consistently ruled for or against one party cannot, standing alone, provide a basis for a finding of judicial bias. In re Bokum Resources, 26 B.R. at 621.\nFinally, as is customary, Judge Eastburn instructed the jury before opening statements as follows:\nNo statement, ruling, remark or comment that I may make during the course of the trial is intended to indicate my opinion as to how you should decide this case or to influence you in any way. At times I may ask questions of witnesses. If I do, such questions do not in any way indicate my opinion about the facts or indicate the weight that I feel you should give the testimony of any of the witnesses____ [Y]ou are the sole judges of the facts of this case, and that it\u2019s your role in this proceeding, and not mine.\nAt the close of the case, the court instructed the jury further that they were \u201cthe sole judges of the facts in this case,\u201d that they \u201calone [were] the judges of the credibility of the witnesses, and of the weight to be given to the testimony of each of them\u201d and that they were \u201cjudges of the facts [whose] sole interest is to ascertain the truth from the evidence in the case.\u201d Given the mixed verdict in this ease, it seems obvious the jury was able to consider the evidence impartially.\nII. SIX-MONTH RULE\nDefendant argues the district court erred by not granting his motion to dismiss the charges filed against him, based on an alleged violation of the \u201csix-month rule.\u201d SCRA 1986, 8-506(B) (Repl.1990).\nDefendant was charged by criminal complaint and arraigned in municipal court on December 5, 1991 on charges of DWI, careless driving, and resisting arrest. On January 16,1992, the State dismissed the charges in municipal court and, that same day, filed a criminal complaint in district court charging Defendant with committing the same misdemeanor offenses charged in municipal court. On February 18, 1992, Defendant was arraigned on the charges filed in district court.\nOn April 20, 1992, Defendant was indicted by a grand jury for the felony offenses of embezzlement (count I), bribery or intimidation of a witness (count II), and fraudulent use of a credit card (count III). On June 19, 1992, Defendant entered a waiver of arraignment and plea of not guilty to those charges.\nOn August 5, 1992, the Supreme Court granted the State\u2019s petition for an extension of time pursuant to SCRA 1986, 5-604 (Repl. 1992), allowing the trial to commence through November 18, 1992. On October 26 and 27, 1992, the district court entered written orders severing the count II felony intimidation offense from counts I and III, for purposes of trial, and ordering that the three misdemeanor offenses charged in Taos County Cause No. 92-06CR be tried together with the severed felony intimidation charge in Taos County Cause No. CR 92-27. Defendant\u2019s trial in Cause No. 92-06CR, on the three misdemeanor charges and the one felony count, commenced on November 16, 1992.\nUnder New Mexico law, the trial of a criminal ease is required to commence six months after \u201cthe date of arraignment, or waiver of arraignment, in the district court of any defendant.\u201d SCRA 5-604(B)(l). Defendant argues that, after a motions hearing held July 24,1992, the district court erred by not dismissing the misdemeanor charges filed in Taos Municipal Court on December 5, 1991. The district court, however, did make a finding, after a hearing, that the State\u2019s refiling in district court of the misdemeanor charges originally filed in municipal court was not done to circumvent the rule, that Defendant had not been prejudiced, and that the intent of the six-month rule had not been violated. See, e.g., State ex rel. Delgado v. Stanley, 83 N.M. 626, 627, 495 P.2d 1073, 1074 (1972) (such a finding sufficient under prior rule). Moreover, Defendant raised this argument before the Supreme Court in his opposition to the State\u2019s petition for an extension of time. Indeed, the Supreme Court\u2019s extension order indicates Defendant\u2019s objection was considered. Defendant is thus precluded from now challenging the Supreme Court\u2019s ruling. See, e.g., State v. Sedillo, 86 N.M. 382, 382, 524 P.2d 998, 998 (Ct.App.) (New Mexico Supreme Court\u2019s grant of an extension is final and may not be challenged in the Court of Appeals), cert. denied, 86 N.M. 372, 524 P.2d 988, and cert. denied, 419 U.S. 1072, 1092, 95 S.Ct. 662, 42 L.Ed.2d 669 (1974).\nIII. THE DECEMBER 5, 1991 LETTER\nDefendant contends the district court erred by admitting into evidence a letter dated December 5, 1991 written by Defendant to Romo. Defense counsel argues that this letter constitutes an offer to plea bargain and is therefore inadmissible under SCRA 1986, 5-304(F) (Repl.1992) and SCRA 1986, 11-410.\nIt is not clear from the face of the December 5, 1991 letter that it is intended to be an offer to plea bargain. Even if it is viewed as such, however, statements volunteered by the Defendant in contacts he initiated with authorities are beyond the protection of SCRA 11-410. State v. Anderson, 116 N.M. 599, 866 P.2d 327 (1993); see also 2 David W. Louisell & Christopher B. Mueller, Federal Evidence \u00a7 187 (rev. ed. 1985). Nor does Defendant refer to any evidence that he relied on SCRA 11-410 in initiating this contact. Anderson, 116 N.M. at 304, 866 P.2d at 332.\nIt is also significant that defense counsel made statements in his opening remarks to the jury that tracked Defendant\u2019s admissions in the December 5 letter. During his opening statement, defense counsel said, \u201cClearly [Defendant] was careless [sic] driving for not putting his signal on; because of that one hesitation, David Fernandez admits the careless driving.\u201d Counsel went on to state that \u201cDavid Fernandez will tell you that when he saw the police officer that night ... he was uncooperative, and we\u2019ll agree with the prosecution on the point that he was uncooperative and therefore he was guilty of being uncooperative or as the prosecutor said resisting arrest that night----\u201d\n\u201cJudicial discretion is abused if the action taken by the trial court is arbitrary or capricious. Such abuse of discretion will not be presumed; it must be affirmatively established.\u201d, State v. Greene, 92 N.M. 347, 349, 588 P.2d 548, 550 (1978) (citations omitted); see State v. Alberico, 116 N.M. 156, 170, 861 P.2d 192, 206 (1993) (abuse of discretion requires the trial judge\u2019s action to be \u201cobviously erroneous, arbitrary, or unwarranted\u201d). We do not find an abuse of discretion in admitting the December 5 letter.\nIV. SUFFICIENCY OF EVIDENCE\nDefendant challenges the sufficiency of the evidence supporting his conviction for intimidating a witness, on two grounds. Defendant first argues, as he did throughout trial, that the State failed to prove that Officer Romo was actually intimidated or threatened as a result of Defendant\u2019s conduct. Second, Defendant challenges the sufficiency of the evidence underlying the charge generally.\nDefendant asserts that Romo testified that he was not intimidated by Defendant\u2019s calls and letters, and that Defendant never requested Romo to testify falsely, or to not testify, with respect to the .DWI charge. These evidentiary facts do not persuade us that the evidence was insufficient to support conviction for intimidation of a witness.\nUnder its own terms, NMSA 1978, Section 30-24-3(A)(2) (Cum.Supp.1993) does not include \u201cactual intimidation\u201d by a victim as an element of the offense. The State was not, then, required to prove that Romo was intimidated; it was sufficient that the prosecution established that Defendant threatened Romo. Cf. State v. Santiago Rene O., 113 N.M. 148, 149, 823 P.2d 948, 949 (Ct.App.1991) (no basis for reading exception into statute which is plain on its face). In this sense, Section 30-24-3(A)(3) does not require proof that an accused\u2019s act is successful. See Black\u2019s Law Dictionary 1480 (6th ed. 1990) (\u201cthreat\u201d defined as a declaration of intent \u201cto work injury to the person, property, or rights of another, with a view of restraining such person\u2019s freedom of action\u201d). Moreover, neither Section 30-24r-3(A)(3) nor the instruction given to the jury required proof that Defendant requested any action by Romo; the operative verbs are \u201cthreatened or intimidated.\u201d\nOfficer Romo testified at trial that, up until the time he received Defendant\u2019s January 6 letter, he had no reason to believe he was not eligible for the food commodity program. Romo further testified that (a) he considered the letter directly related to Defendant\u2019s pending case; (b) it was not Defendant\u2019s job as Taos County Commissioner to monitor the food program; and (c) at the time he received the letter he was still the arresting and prosecuting officer and planned to testify against Defendant. There is sufficient evidence that Defendant \u201cthreatened or intimidated\u201d Officer Romo. See State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992) (sufficiency of the evidence requires substantial evidence such that a rational jury could have found each element of the crime to be established beyond a reasonable doubt).\nV. MOTION FOR NEW TRIAL\nA. Preservation\nThe procedure for filing a motion for a new trial is set forth under SCRA 1986, 5-614 (Repl.1992). Under that rule, a motion for new trial based on grounds other than newly discovered evidence \u201cshall be made within ten (10) days after verdict or finding of guilty or within such further time as the court may fix during the ten (10) day period.\u201d SCRA 5-614(C). Defendant was found guilty of the charges on November 19, 1992. Defendant\u2019s claim of inconsistent verdicts was first raised in an \u201cAmended Motion For A New Trial\u201d filed in district court on December 28, 1992. Defendant fails to assert, and the record does not indicate, that the district court extended the ten-day time limit for filing a motion for new trial as set forth in SCRA 5-614(C). See \u00a7 12-213(A)(3) (requiring that contentions of an appellant must indicate how an issue has been preserved in the court below). It does not appear therefore that Defendant properly preserved this issue for review.\nB. Merits\nEven if we consider Defendant\u2019s argument, it lacks merit. Defendant argues the jury\u2019s guilty verdict on the intimidation count and not guilty verdict on the DWI charge \u201care inconsistent, indicating jury confusion.\u201d The jury was instructed that the elements for the offenses of DWI and intimidation of a witness are separate and distinct under New Mexico law. Inconsistent verdicts are those which are so contrary to each other that the basis upon which each verdict was reached cannot be determined. Maxwell v. Santa Fe Pub. Sch., 87 N.M. 383, 387, 534 P.2d 307, 311 (Ct.App.1975) (Sutin, J., specially concurring). We perceive no such problem here.\nIn order to establish that Defendant intimidated Romo, the State merely had to prove that the purpose of the threat or intimidation was to prevent Romo from testifying was adequate. Furthermore, even if the acquittal on the DWI charge was irreconcilable with the conviction for intimidating a witness, we would not be required to set aside the conviction; we review the verdict of conviction, not the verdict of acquittal. See State v. Leyba, 80 N.M. 190, 195, 453 P.2d 211, 216 (Ct.App.), cert. denied, 80 N.M. 198, 453 P.2d 219 (1969). As we pointed out, there is ample evidence to support that conviction.\nVI. THE JURY WAS PROPERLY INSTRUCTED\nThe instruction on the intimidation offense presented to the jury reads as follows:\nFor you to find the defendant guilty of intimidation of a witness, the state must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:\n1. David Fernandez threatened or intimidated David Romo.\n2. At the time of the threat or intimidation, David Romo was a witness, or a person likely to become a witness, in a judicial or administrative proceeding.\n3. The purpose of the threat or intimidation was to prevent David Romo from testifying to any fact, or to abstain from testifying.\n4. This happened in New Mexico between December 4, 1991 and January 7, 1992.\nThe record further indicates that the court also gave Uniform Jury Instruction 14-141, the required instruction on general criminal intent.\nThe instruction given to the jury concerning intimidation of a witness states, \u201cThe purpose of the threat or intimidation was to prevent David Romo from testifying to any fact, or to abstain from testifying.\u201d We believe this language conveyed the notion that the State had to prove Defendant intended that Romo not testify to some fact or that Romo not testify at all. Webster\u2019s Third New International Dictionary 1847 (1966) (\u201cpurpose\u201d defined as an intended object, effect, or result). Moreover, the instruction tracks the language of Section 30-24-3(A)(3). See State v. Cawley, 110 N.M. 705, 710, 799 P.2d 574, 579 (1990) (\u201cGenerally, an instruction that parallels the language of the statute and contains all essential elements of the crime is sufficient.\u201d).\nDefendant tendered Proposed Jury Instruction No. \u201cC\u201d which the court refused. Defendant\u2019s proposed instruction \u201cC\u201d read as follows: \u201cIn order to find the [Djefendant guilty of the offense of intimidation of a witness, you must find that [Djefendant had the specific intent to intimidate a witness when he authored the letter of January 6, 1992 to Officer David Romo.\u201d Defendant was not entitled to his tendered instruction because the jury was adequately instructed on the requisite intent by the instructions given. See State v. Griscom, 101 N.M. 377, 379, 683 P.2d 59, 61 (Ct.App.), cert. denied, 101 N.M. 362, 683 P.2d 44 (1984).\nVII. OFFER OF PROOF\nDefendant contends \u201c[t]he trial court improperly refused to allow the [d]efense to make a tender of proof through Officer David Romo.\u201d (Emphasis omitted.) Although it is not entirely clear, Defendant\u2019s claim apparently refers to the defense theory concerning the scope of the Attorney General\u2019s Office investigation which was previously raised in the context of Defendant\u2019s allegations of judicial bias. An offer of proof stated in mere conclusory terms is too general and should be rejected. State ex rel. Nichols v. Safeco Ins. Co. of Am., 100 N.M. 440, 444, 671 P.2d 1151, 1155 (Ct.App.), cert. denied, 100 N.M. 327, 670 P.2d 581 (1983); see also SCRA 1986, 11-103.\nDefendant further claims the trial court stated it would allow an offer of proof fi\u2019om Officer Romo \u201cwhen the State called Officer Romo as a rebuttal witness.\u201d The State, of course, had no duty to call Officer Romo as a rebuttal witness and did not do so. It is unclear why Defendant apparently did not make the offer of proof during its cross-examination of Romo. It is also unclear how Taos Police Officer Romo\u2019s proffered testimony regarding an investigation by the Attorney General\u2019s Office, a separate law enforcement agency, could have been crucial to Defendant\u2019s \u201cscope of the investigation defense.\u201d It is not error to reject an offer of proof where the party making the tender does not clearly identify the relevance of the evidence. De La O v. Bimbo\u2019s Restaurant, Inc., 89 N.M. 800, 803-04, 558 P.2d 69, 72-73 (Ct.App.), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976). We see no error in the rejection of an offer of proof regarding what Romo knew about how the Attorney General\u2019s Office investigated this case in comparison with other claims.\nVIII. PROSECUTOR\u2019S COMMENT\nDefendant cites as \u201c[p]erhaps one of the single most egregious errors in the trial\u201d a comment by the prosecutor regarding the Defendant\u2019s decision not to testify. A review of the relevant portion of the record reflects that this comment by the trial prosecutor was likely inadvertent.\nAfter the defense had called several witnesses, the district court asked defense counsel, in open court, who else the defense intended to call. Defense counsel responded, \u201cI intend to call Mr. David Fernandez [and others].\u201d This dialogue was immediately followed by the court granting a requested recess to defense counsel to confer with his client. At this point, the jury was excused and counsel and the court discussed the use of defense counsel\u2019s flip-charts during closing argument. After the jury re-entered the courtroom, defense counsel announced to the court that the defense rested its case. The trial tape then reflects the court expressed surprise, and asked the prosecutor whether there would be any rebuttal by the State. After a pause, the prosecutor responded that he was \u201cnot in a position to rebut Until tomorrow morning, your Honor. I expected, we all expected, the defendant to testify____\u201d Defendant never entered an objection to the prosecutor\u2019s statement, even though the court immediately instructed the jury that \u201cthis defendant has a right not to testify.\u201d\nDefendant\u2019s failure to object to the prosecutor\u2019s comment means that any error must be \u201cfundamental\u201d to warrant reversal. See State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991); State v. Urban, 86 N.M. 351, 354, 524 P.2d 523, 526 (Ct.App.1974). In light of previous statements by defense counsel that Defendant would testify and the district court\u2019s instruction, any error was harmless. See Clark v. State, 112 N.M. 485, 487, 816 P.2d 1107, 1109 (1991) (similar statement by prosecutor was harmless error which did not require reversal).\nIX. CUMULATIVE ERROR\nSince we find Defendant\u2019s other arguments to be without merit and the record to reflect no reversible error, we are also unpersuaded by the claim of cumulative error. See Martin, 101 N.M. at 601, 686 P.2d at 943 (cumulative error doctrine to be strictly applied and cannot be invoked if no irregularities occurred or if record as a whole demonstrates defendant received a fair trial).\nThe judgment of the district court is therefore affirmed.\nIT IS SO ORDERED.\nDONNELLY and ALARID, JJ., concur.", "type": "majority", "author": "BLACK, Judge." } ], "attorneys": [ "Tom Udall, Atty. Gen., Daniel F. Haft, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Anthony James Ayala, Albuquerque, for defendant-appellant." ], "corrections": "", "head_matter": "875 P.2d 1104\nSTATE of New Mexico, Plaintiff-Appellee, v. David FERNANDEZ, Defendant-Appellant.\nNo. 14681.\nCourt of Appeals of New Mexico.\nApril 14, 1994.\nCertiorari Denied May 26, 1994.\nTom Udall, Atty. Gen., Daniel F. Haft, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nAnthony James Ayala, Albuquerque, for defendant-appellant." }, "file_name": "0673-01", "first_page_order": 709, "last_page_order": 718 }