{ "id": 4002970, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Shishmon BAILEY, Defendant-Appellant", "name_abbreviation": "State v. Bailey", "decision_date": "2008-03-27", "docket_number": "No. 26,500", "first_page": "279", "last_page": "287", "citations": [ { "type": "official", "cite": "144 N.M. 279" }, { "type": "parallel", "cite": "186 P.3d 908" }, { "type": "parallel", "cite": "2008-NMCA-084" } ], "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": "1999-NMCA-060", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257801 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0393-01" ] }, { "cite": "120 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558929 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "392", "parenthetical": "second alteration in original" }, { "page": "74", "parenthetical": "second alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0383-01" ] }, { "cite": "100 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588533 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "765", "parenthetical": "\"We assume where arguments in briefs are unsupported by cited authority, counsel after diligent search, was unable to find any supporting authority.\"" }, { "page": "1330", "parenthetical": "\"We assume where arguments in briefs are unsupported by cited authority, counsel after diligent search, was unable to find any supporting authority.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0764-01" ] }, { "cite": "2006-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671953 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0311-01" ] }, { "cite": "2006-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 2542655 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/139/0167-01" ] }, { "cite": "103 N.M. 655", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711335 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0655-01" ] }, { "cite": "78 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324373 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0127-01" ] }, { "cite": "1997-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 142185 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0073-01" ] }, { "cite": "2002-NMCA-036", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183110 ], "weight": 12, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 20" }, { "page": "\u00b6\u00b6 10-11" }, { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0746-01" ] }, { "cite": "499 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11319062 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "402", "parenthetical": "\"[W]e hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race.\"" }, { "parenthetical": "\"[W]e hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race.\"" }, { "parenthetical": "\"[W]e hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race.\"" } ], "opinion_index": 0, "case_paths": [ "/us/499/0400-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 8, "year": 1986, "pin_cites": [ { "page": "86" }, { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "512 U.S. 452", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39831 ], "weight": 13, "year": 1994, "pin_cites": [ { "page": "455" }, { "parenthetical": "alterations in original" }, { "page": "462" }, { "page": "459" }, { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/us/512/0452-01" ] }, { "cite": "451 U.S. 477", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187603 ], "weight": 6, "year": 1981, "pin_cites": [ { "page": "484" }, { "page": "484-85" } ], "opinion_index": 0, "case_paths": [ "/us/451/0477-01" ] }, { "cite": "2001-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352481 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 23" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0227-01" ] }, { "cite": "1999-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257627 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b614" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0207-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 6, "year": 1966, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 1079, "char_count": 26235, "ocr_confidence": 0.696, "pagerank": { "raw": 6.948559662100509e-08, "percentile": 0.42119154437189193 }, "sha256": "ae9cc3ac41368cb643b5f896f09a63564f2dc9c3549afaac4a0c15f3e72984b2", "simhash": "1:a862b333be900bcf", "word_count": 4214 }, "last_updated": "2023-07-14T22:37:29.378104+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: LYNN PICKARD and MICHAEL E. VIGIL, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Shishmon BAILEY, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} Defendant Shishmon Bailey appeals his convictions for abandonment or abuse of a child, bribery or intimidation of a witness, and possession of marijuana. On appeal, Defendant argues that (1) the district court erred in refusing to suppress in-custody statements made in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) because the statements were made in response to questions posed by a law enforcement interviewer after Defendant expressed doubt about answering any further questions without having a lawyer present; (2) the district court erred in failing to find that the State struck three prospective jurors on the basis of race; (3) the district court erred in enhancing Defendant\u2019s sentence; and (4) cumulative error deprived Defendant of fair proceedings. We affirm Defendant\u2019s convictions.\nBACKGROUND\n{2} The charges against Defendant arose after he allegedly struck his young stepson in the course of disciplining him. Defendant\u2019s wife, the boy\u2019s mother, called the police and Defendant\u2019s probation officer to report the incident, informing them that there was probably marijuana and drug paraphernalia in a shed behind the family home. Officer Hal Alton and another police officer went to Defendant\u2019s home with Defendant\u2019s probation officer to investigate. After placing Defendant in handcuffs, the officers found marijuana residue and drug paraphernalia in the shed as well as marijuana plants growing in the yard. In response, Officer Alton read Defendant his Miranda rights, which he indicated he understood, and took him from his home to the Department of Public Safety for further questioning.\nWAIVER OF MIRANDA RIGHTS\n{3} In order to protect a defendant\u2019s right against self-incrimination, law enforcement officers must, before beginning questioning, inform a person in custody (1) of the right to remain silent, (2) of the prospect that any statement made may be used as evidence against him or her, and (3) of the right to an attorney. Id. at 444, 86 S.Ct. 1602, 16 L.Ed.2d 694. However, any of those rights may be waived, \u201cprovided the waiver is made voluntarily, knowingly and intelligently.\u201d Id.; accord State v. Martinez, 1999-NMSC-018, \u00b6 13, 127 N.M. 207, 979 P.2d 718.\n{4} When a defendant moves to suppress statements allegedly made in violation of Miranda, \u201cthe State bears the burden of demonstrating by a preponderance of the evidence that the defendant\u201d made such a voluntary, knowing, and intelligent waiver. Martinez, 1999-NMSC-018, \u00b614, 127 N.M. 207, 979 P.2d 718. In doing so, \u201c[t]he State must demonstrate that the waiver of rights was the product of a free and deliberate choice rather than intimidation, coercion, or deception\u201d and also must show that the waiver \u201cwas made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.\u201d Id. (internal quotation marks and citation omitted). We review whether such a waiver was made by evaluating \u201cthe totality of the circumstances and the particular facts, including consideration of the mental and physical condition, background, experience, and conduct of the accused, as well as the conduct of the police.\u201d Id. (internal quotation marks and citation omitted). Additionally, we must indulge every reasonable presumption against waiver. Id. In doing so, \u201cwe review the trial court\u2019s findings of fact for substantial evidence and review de novo the ultimate determination of whether a defendant validly waived his or her Miranda rights prior to police questioning.\u201d State v. Barrera, 2001-NMSC-014, \u00b6 23, 130 N.M. 227, 22 P.3d 1177.\n{5} Defendant argues that his Fifth Amendment rights under Miranda were violated when Officer Alton continued to question him after he expressed doubt about continuing without an attorney present. At the suppression hearing, Officer Alton testified that he did not re-read Defendant his Miranda rights at the beginning of the interview at the Department of Public Safety but that he asked Defendant (1) if he was still aware of the rights that he was read at his home and (2) whether he was willing to answer some more questions. Initially, Defendant did not object to answering Officer Alton\u2019s questions. Defendant proceeded to speak with Officer Alton, and at one point during the interview, Defendant told him that he had spanked his stepson with a toy tennis racquet and that he may have been \u201coverzealous.\u201d Officer Alton testified that upon being asked to clarify what he meant by \u201coverzealous,\u201d Defendant stated that he did not think that he should answer any further questions without having a lawyer present. Officer Alton asked Defendant whether he meant that he did not want to answer any more questions at all or if he was exclusively referring to questions specifically regarding the incident involving the toy tennis racquet. In response, Defendant agreed to answer questions about other topics. Officer Alton testified that he proceeded to ask Defendant questions, including questions regarding other times that he had struck his stepson.\n{6} Officer Alton testified that Defendant returned to the topic that initially caused him to inquire about an attorney after he was asked, \u201cIs there anything else you need to tell me?\u201d At that point, Defendant stated that he had lied about spanking his stepson with the toy tennis racquet. Officer Alton testified that Defendant acknowledged that he did not use a toy tennis racquet to strike his stepson; rather, he used a wooden ski from a NordicTrack exercise machine. Defendant told Officer Alton that he struck his stepson after the child refused to answer him, that he did not hit the child too forcefully, and that he did not think that he had bruised the child. On cross-examination, Officer Alton agreed that, despite having originally inquired about speaking with an attorney when presented with questions on the issue, Defendant ultimately told him everything about the incident. Finally, Defendant testified that when Officer Alton asked him if they could talk about anything else, he thought that the line of questioning would shift to a topic that was not related to the child abuse allegation, such as the marijuana that had been found.\n{7} An audio recording of portions of Officer Alton\u2019s interview with Defendant was ultimately admitted into evidence at trial and played for the jury. As transcribed in Defendant\u2019s brief, the following exchange took place concerning Defendant\u2019s assertion that he did not want to answer any further questions about the spanking incident:\nOfficer: What do you mean, you got overzealous?\nAppellant: I don\u2019t think I should say anything else without seeing a lawyer. It\u2019s not that I don\u2019t trust you. It\u2019s not that I\u2019m saying that; but you can\u2019t (inaudible), right?\nOfficer: Yes, I can. I\u2019ve already read you your rights. You said that you understood them. Okay, so, so you don\u2019t want to say any more. You don\u2019t want to say any more about that incident, or you don\u2019t want to say anything else, about ... ? Appellant: About that incident.\nOfficer: Okay. All right. Having your rights in mind, can we talk about other disciplinary issues in the home?\nAppellant: Let me, what I ...\nOfficer: I mean, what you\u2019re saying is that you don\u2019t want to say any more to me about that incident without a lawyer being present. I fully understand you that (Sic). I won\u2019t ask you any more questions about that incident. I\u2019m also asking you if you\u2019re invoking your rights under Miranda to not talk to me about other things?\nAppellant: Other things, we can talk about.\n{8} After considering Defendant\u2019s Miranda argument, the district court ruled that Defendant\u2019s statements about not saying anything else without first speaking -with an attorney amounted to a limited invocation of his right to remain silent, that Defendant understood his rights, and that' the subsequent statements about how he disciplined his stepson were voluntary. We agree.\n{9} In Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court set forth the general rule regarding further questioning after an accused has requested counsel: \u201c[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.\u201d The Court went on to hold that an accused, \u201chaving expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.\u201d Id. at 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378. However, Edwards left open the question of how law enforcement officers should respond when the suspect being questioned makes an equivocal request for counsel, as in the present case.\n{10} In Davis v. United States, 512 U.S. 452, 455, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the United States Supreme Court addressed a situation in which the defendant stated, more than an hour after an investigating agent began interviewing him, \u201c \u2018Maybe I should talk to a lawyer.\u2019 \u201d The agent later testified about what happened after the defendant made that statement:\n\u201c[We mjade it very clear that we\u2019re not here to violate his rights, that if he wants a lawyer, then we will stop any kind of questioning with him, that we weren\u2019t going to pursue the matter unless we have it clarified is he asking for a lawyer or is he just making a comment about a lawyer, and he said, [\u2019]No, I\u2019m not asking for a lawyer,\u2019 and then he continued on, and said, \u2018No, I don\u2019t want a lawyer.\u2019 \u201d\nId. (alterations in original). Noting the two layers of protection afforded by Miranda and Edwards, the Court was \u201cunwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer,\u201d and it held that \u201c[u]nless the suspect actually requests an attorney, questioning may continue.\u201d Davis, 512 U.S. at 462, 114 S.Ct. 2350. The Court further noted that the suspect \u201cmust articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney,\u201d id. at 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 and observed that\nwhen a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney.... Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect\u2019s statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions.\nId. at 461, 114 S.Ct. 2350, 129 L.Ed.2d 362.\n{11} In the present case, Defendant\u2019s response, \u201cI don\u2019t think I should say anything else without seeing a lawyer,\u201d contains two levels of equivocation. First, the statement was equivocal on its face in that Defendant did not explicitly assert that he required a lawyer before he would answer any further questions. Rather, Defendant\u2019s statement could reasonably have been interpreted to mean that he was considering whether he needed a lawyer but had not yet decided to demand one. At a minimum, the statement appears to call for a follow-up clarification question, such as, \u201cAre you asking for a lawyer?\u201d Second, Defendant\u2019s statement was equivocal under the circumstances because its intended scope was not clear. Although Defendant\u2019s assertion that he did not think that he should say \u201canything else\u201d could be taken to mean that he did not want to say anything further on any subject, under the circumstances it was reasonable for Officer Alton to be uncertain whether Defendant did not want to talk about the details of what he meant by using the word \u201coverzealous,\u201d which was the immediate topic of discussion, or whether he referred to any further discussion of any kind. By asking a clarifying question, Officer Alton observed the \u201cgood police practice\u201d recommended by Davis to establish exactly what Defendant wanted. See id.\n{12} Defendant does not dispute the facts that (1) he was given Miranda warnings at his home and (2) he was reminded of those warnings before questioning resumed at the Department of Public Safety. Under those circumstances, Officer Alton was under no obligation to interpret, without further clarification, Defendant\u2019s equivocal statement that he was unsure whether he \u201cshould say anything else without seeing a lawyer\u201d as a sufficiently clear invocation of his right to require all questioning to cease. On the contrary, Defendant\u2019s decision to continue answering questions and, in response to an open-ended question, to volunteer statements about the subject that had initially triggered him to equivocally invoke his Miranda rights constituted a knowing, intelligent, and voluntary waiver of those rights. Accordingly, the district court did not err in denying Defendant\u2019s motion to suppress the statements that he made after he suggested that he might want to speak with a lawyer before continuing the interview with Officer Alton.\nTHE STATE\u2019S USE OF PEREMPTORY CHALLENGES\n{13} Defendant also argues that the State\u2019s use of all three of its peremptory challenges to excuse potential jurors with Hispanic surnames violated the principles set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court held that \u201c[p]urposeful racial discrimination in selection of the venire violates a defendant\u2019s right to equal protection because it denies him the protection that a trial by jury is intended to secure.\u201d Id. at 86, 106 S.Ct. 1712, 90 L.Ed.2d 69. Accordingly, \u201cby denying a person participation in jury service on account of his race, the State unconstitutionally discriminatefs] against the excluded juror.\u201d Id. at 87, 106 S.Ct. 1712. Batson principles apply in cases in which, as in the present case, the excluded jurors and the defendant are apparently of different races. See Powers v. Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (\u201c[W]e hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race.\u201d). In the present case, Defendant is African-American, and the excluded potential jurors, whose individual races are not discernible from the record, have Hispanic surnames.\n{14} This Court has stated that in alleging a violation of the principles set forth in Batson, \u201c[a] defendant must first make a prima facie showing that the State used its peremptory challenges in a racially discriminatory way.\u201d State v. Martinez, 2002-NMCA-036, \u00b6 10, 131 N.M. 746, 42 P.3d 851. A prima facie showing requires a defendant to prove \u201cthat (1) the State exercised its peremptory challenges to remove members of [a racial] group from the jury panel and (2)[the] facts and other related circumstances raise an inference that the State used its challenges to exclude members of the panel solely on account of their race.\u201d Id. \u00b6 11. If a defendant is able to make a prima facie showing that the State used its peremptory challenges in a racially discriminatory way, \u201cthen the State must provide a racially neutral explanation for its challenges. If the trial court finds that the State\u2019s explanation is racially neutral, then the burden again falls on [the defendant] to show that the reason given is in fact pretext for a racially discriminatory motive.\u201d Id. \u00b6 10 (citation omitted).\n{15} This Court reviews a district court\u2019s factual findings regarding a Bat-son challenge using a deferential standard of review, as it is the responsibility of the district court to (1) \u201cevaluate the sincerity of both parties,\u201d (2) \u201crely on its own observations of the challenged jurors,\u201d and (3) \u201cdraw on its experience in supervising voir dire.\u201d Martinez, 2002-NMCA-036, \u00b6 20, 131 N.M. 746, 42 P.3d 851. However, we are not required to defer to the district court regarding whether a stated reason for a challenge is constitutionally adequate; therefore, we apply a de novo standard of review to the ultimate question of constitutionality. See State v. Jones, 1997-NMSC-016, \u00b6 11, 123 N.M. 73, 934 P.2d 267.\n{16} The present case bears certain similarities to our Supreme Court\u2019s decision in Jones. In that case, the defendant alleged that the state did not provide an adequate reason for its peremptory challenge of an African-American venire member. Id. \u00b6 2. The state responded by asserting that it peremptorily challenged the juror \u201c \u2018because he absolutely failed to establish eye contact with the [sjtate during questioning, and in the [sjtate\u2019s amateur psychological opinion, seemed not to be possessed of a certain degree of assertiveness which the [sjtate prefers to have in jurors.\u2019\u201d Id. The Court concluded that \u201cthe prosecutor\u2019s subjective belief was not a legally insufficient explanation for a peremptory challenge of the juror.\u201d Id. \u00b6 11.\n{17} In the present case, after the State used its three peremptory challenges on jurors Vigil, Garnand, and Herrera and Defendant invoked Batson, the district court asked if the State had a \u201clegitimate nondiscriminatory reason\u201d for the challenges. The district court therefore implicitly found that Defendant had made a prima facie showing that the State\u2019s challenges were racially motivated. See Martinez, 2002-NMCA-036, \u00b6\u00b6 10-11, 131 N.M. 746, 42 P.3d 851. As to venire member Vigil, the prosecutor stated that she had responded to only one of the State\u2019s questions, she was only twenty years old, and she did not have any children. Therefore, the State argued, Vigil gave no indication \u201cthat she would know anything about disciplining children.\u201d As to venire member Garnand, the State stated that it had not recognized the name Garnand as being Hispanic. The State further argued that Garnand was generally unresponsive to its questions during voir dire. Finally, as to venire member Herrera, the State asserted that \u201c[t]here was absolutely no response from her at all on any of the questions.\u201d\n{18} In denying Defendant\u2019s Batson challenge, the district court noted that a substantial percentage of the population of the local community had Hispanic surnames and that, as a statistical matter with a panel of forty-eight potential jurors, it was not out of the ordinary that all three challenges included members of that subgroup. However, in its oral ruling, the district court stated that \u201csome of the State\u2019s reasons were somewhat vague\u201d and possibly \u201capproach[ed] the line of being too inexact.\u201d Although the district court did not expressly give credence to the State\u2019s assertion that it had not realized that Garnand was a Hispanic name, it found it \u201cinteresting\u201d that the State had excused an individual whose one answer was that he had affiliations with both the chief of police and the judge presiding over the trial. The district court observed that it seemed that the State would want such a juror to be on the panel.\n{19} While we agree with the district court that the prosecutor\u2019s stated reasons for the challenges were somewhat vague, at least as to Garnand and Herrera, we note that those potential jurors\u2019 alleged unresponsiveness was not much different from the challenged venire member\u2019s failure to make eye contact in Jones. See Jones, 1997-NMSC-016, \u00b6 2, 123 N.M. 73, 934 P.2d 267. As in Jones, the stated reasons were both racially neutral and specific, thus necessitating step three of the Batson analysis, which shifts the burden back to the defendant \u201cto show that the reason given [was] in fact pretext for a racially discriminatory motive.\u201d Martinez, 2002-NMCA-036, \u00b6 10, 131 N.M. 746, 42 P.3d 851.\n{20} After hearing the State\u2019s reasons for the three challenges, the district court proceeded to shift the burden back to Defendant to show that the State\u2019s challenges were pretext for a racially discriminatory motive. When asked for reasons as to why the State\u2019s reasons were pretextual, Defendant addressed the vagueness of the State\u2019s assertion of unresponsiveness, argued that the State had not specifically questioned the three potential jurors at issue at length, and suggested that the State was at least partially at fault for the lack of interaction. Those arguments added nothing significant to counter what the district court had already implicitly decided \u2014 that the State had offered reasons that were racially neutral and specific. Therefore, the district court concluded that Defendant had not met his burden under Batson to show that there actually was some racially discriminatory motive.\n{21} After reviewing the record, we agree with the district court\u2019s conclusion. In responding to the State\u2019s racially neutral and specific reasons for using peremptory challenges on the three jurors, Defendant failed to meet his burden of proving that the State\u2019s actual intention was racially motivated in that it aimed to ensure that Hispanicsurnamed panel members were not selected as members of the jury. Accordingly, we conclude that the district court did not err in ruling that the State\u2019s peremptory challenges complied with the mandate in Batson.\nENHANCEMENT OF SENTENCE\n{22} Citing State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967) and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct.App.1985), Defendant also argues that the district court erred in enhancing his sentence. Specifically, Defendant alleges that the State did not provide him with the correct version of the judgment and sentence on which the habitual offender enhancement was based and that, therefore, there was insufficient evidence to support the enhancement.\n{23} We review the sufficiency of the evidence presented in habitual offender proceedings under a substantial evidence standard of review. See State v. Treadway, 2006-NMSC-008, \u00b6 7, 139 N.M. 167, 130 P.3d 746. In order to support a habitual offender enhancement, the State must prove the following elements: \u201c(1) defendant must be the same person, (2) convicted of the prior felony, and (3) less than ten years have passed since the defendant completed serving his or her sentence, probation or parole for the conviction.\u201d State v. Simmons, 2006-NMSC-044, \u00b6 8, 140 N.M. 311, 142 P.3d 899.\n{24} At Defendant\u2019s habitual offender proceeding, the State noted that the earlier conviction upon which the enhancement was based had been entered by the judge who was presiding over the current proceedings. The State requested that the court take judicial notice of the earlier proceedings. Defendant\u2019s counsel objected, arguing that the State had served upon him a judgment and sentence for the earlier offense that contained an improper extension of probation. The district court asked Defendant\u2019s counsel if his argument negated the existence of Defendant\u2019s prior felony conviction. Defendant\u2019s counsel acknowledged that it did not and stated that he simply wanted to clarify the judgment and sentence on which the State was proceeding.\n{25} We understand Defendant\u2019s argument on appeal to arise from the following discrepancy. The record includes an amended judgment and sentence that was file-stamped on August 1, 2000. At the habitual offender proceeding, the district court judge, Defendant\u2019s counsel, and Defendant\u2019s probation officer discussed a judgment and sentence that was file-stamped on July 17, 2000. Both documents refer to the sentencing that took place on July 14, 2000. Although the reason for the discrepancy is unclear, Defendant does not point to any significant or relevant substantive difference between the two documents. There appears to have been full agreement that Defendant had been previously convicted of other crimes, and Defendant cites no authority for the proposition that a minor discrepancy in copies of the judgment and sentence used to prove an earlier felony conviction must result in an appellate finding of insufficiency of the evidence when the fact of the earlier conviction is not otherwise contested. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (\u201cWe assume where arguments in briefs are unsupported by cited authority, counsel after diligent search, was unable to find any supporting authority.\u201d). Accordingly, we find Defendant\u2019s argument to be without merit.\nCUMULATIVE ERROR\n{26} Finally, Defendant argues that cumulative error deprived him of fair proceedings in district court. \u201cUnder the doctrine of cumulative error, [we] must reverse a conviction when the cumulative impact of the errors [that] occurred at trial was so prejudicial that the defendant was deprived of a fair trial.\u201d State v. Baca, 120 N.M. 383, 392, 902 P.2d 65, 74 (1995) (second alteration in original) (internal quotation marks and citation omitted). When we conclude that no error occurred, \u201cthere is no cumulative error.\u201d State v. Aragon, 1999-NMCA-060, \u00b6 19, 127 N.M. 393, 981 P.2d 1211. Because we have found no error in the proceedings before the district court, we conclude that there was no cumulative error in this case.\nCONCLUSION\n{27} Haying concluded that Defendant\u2019s rights under Miranda were not violated, that jury selection at Defendant\u2019s trial did not violate the principles set forth in Batson, and that substantial evidence supported sentencing Defendant as a habitual offender, we affirm Defendant\u2019s convictions.\n{28} IT IS SO ORDERED.\nWE CONCUR: LYNN PICKARD and MICHAEL E. VIGIL, Judges.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.", "John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2008-NMCA-084\n186 P.3d 908\nSTATE of New Mexico, Plaintiff-Appellee, v. Shishmon BAILEY, Defendant-Appellant.\nNo. 26,500.\nCourt of Appeals of New Mexico.\nMarch 27, 2008.\nCertiorari Denied, No. 31,055, May 14, 2008.\nGary K. King, Attorney General, Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.\nJohn Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0279-01", "first_page_order": 311, "last_page_order": 319 }