{ "id": 4247016, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Demetrio A. SALAS, Defendant-Appellant", "name_abbreviation": "State v. Salas", "decision_date": "2010-06-15", "docket_number": "No. 30,967", "first_page": "313", "last_page": "322", "citations": [ { "type": "official", "cite": "148 N.M. 313" }, { "type": "parallel", "cite": "2010-NMSC-028" }, { "type": "parallel", "cite": "236 P.3d 32" } ], "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": "2009-NMCA-034", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4242383 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 51" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0783-01" ] }, { "cite": "101 N.M. 595", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586387 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "601", "parenthetical": "holding that the cumulative error \"doctrine cannot be invoked if no irregularities occurred or if the record as a whole demonstrates that a defendant received a fair trial\" (citation omitted)" }, { "page": "943", "parenthetical": "holding that the cumulative error \"doctrine cannot be invoked if no irregularities occurred or if the record as a whole demonstrates that a defendant received a fair trial\" (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0595-01" ] }, { "cite": "2002-NMSC-005", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183137 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 63" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0709-01" ] }, { "cite": "2002-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260689 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0657-01" ] }, { "cite": "1997-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 142185 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 5" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0073-01" ] }, { "cite": "2002-NMCA-036", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183110 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 20" }, { "page": "\u00b6 24" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0746-01" ] }, { "cite": "2008-NMCA-084", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4002970 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 15" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0279-01" ] }, { "cite": "514 U.S. 765", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1340390 ], "weight": 13, "year": 1995, "pin_cites": [ { "page": "767", "parenthetical": "per curiam" }, { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" }, { "page": "767" }, { "page": "767-68" }, { "page": "768" }, { "page": "767" }, { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/us/514/0765-01" ] }, { "cite": "505 U.S. 42", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1480976 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "59", "parenthetical": "holding that \"the Constitution prohibits a criminal defendant from engaging in purposeful discrimination ... in the exercise of peremptory challenges\"" }, { "parenthetical": "holding that \"the Constitution prohibits a criminal defendant from engaging in purposeful discrimination ... in the exercise of peremptory challenges\"" }, { "parenthetical": "holding that \"the Constitution prohibits a criminal defendant from engaging in purposeful discrimination ... in the exercise of peremptory challenges\"" } ], "opinion_index": 0, "case_paths": [ "/us/505/0042-01" ] }, { "cite": "511 U.S. 127", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147675 ], "weight": 5, "year": 1994, "pin_cites": [ { "page": "129", "parenthetical": "holding that \"gender, like race, is an unconstitutional proxy for juror competence and impartiality\"" }, { "parenthetical": "holding that \"gender, like race, is an unconstitutional proxy for juror competence and impartiality\"" }, { "parenthetical": "holding that \"gender, like race, is an unconstitutional proxy for juror competence and impartiality\"" }, { "page": "140" } ], "opinion_index": 0, "case_paths": [ "/us/511/0127-01" ] }, { "cite": "112 N.M. 190", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720258 ], "weight": 2, "pin_cites": [ { "page": "192" }, { "page": "1340" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0190-01" ] }, { "cite": "1999-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 257791 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 31" }, { "page": "\u00b6 32" }, { "page": "\u00b6 84", "parenthetical": "holding that \"gender, like race, is an unconstitutional proxy for juror competence and impartiality\"" }, { "parenthetical": "holding that \"gender, like race, is an unconstitutional proxy for juror competence and impartiality\"" }, { "parenthetical": "holding that \"gender, like race, is an unconstitutional proxy for juror competence and impartiality\"" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0151-01" ] }, { "cite": "2001-NMSC-014", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352481 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 11" }, { "page": "\u00b6 12" }, { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0227-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] } ], "analysis": { "cardinality": 1203, "char_count": 31041, "ocr_confidence": 0.676, "pagerank": { "raw": 8.160999968310426e-08, "percentile": 0.4748381083221454 }, "sha256": "1c7d16649cfcf71dc2cea1215567b34ae103d24b9cbd532508e9c02f9f2971ad", "simhash": "1:d84def4e7bceddee", "word_count": 5021 }, "last_updated": "2023-07-14T17:58:33.542282+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: CHARLES W. DANIELS, Chief Justice, PATRICIO M. SERNA, RICHARD C. BOSSON, and EDWARD L. CH\u00c1VEZ, Justices." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Demetrio A. SALAS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nMAES, Justice.\n{1} Following a jury trial, Demetrio A. Salas (Defendant) was convicted of (1) first-degree murder in violation of NMSA 1978, Section 30-2-1(A)(1), (2) (1994); (2) attempted first-degree murder in violation of Section 30\u20142\u20141(A)(1) and NMSA 1978, Section 30-28-1 (1963); (3) shooting at a dwelling or occupied building and causing death or great bodily harm in violation of NMSA 1978, Section 30-3-8(A) (1993); (4) tampering with evidence in violation of NMSA 1978, Section 30-22-5 (2003); and (5) intimidation of a witness in violation of NMSA 1978, Section 30-24-3(A)(3) (1997). Pursuant to Rule 12-102(A)(1) NMRA, Defendant appeals directly to this Court, claiming that (1) the trial court improperly granted the State\u2019s second motion to reconsider a change of venue under NMSA 1978, Section 38-3-3 (2003) and NMSA 1978, Section 38-3-7 (1965); (2) the trial court improperly held that Defendant had violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) by striking a white male venireperson from the jury, but that the State had not violated Batson by striking Hispanic venirepersons from the jury; and (3) Defendant\u2019s convictions must be reversed under the cumulative error doctrine. We reject Defendant\u2019s claims and affirm his convictions.\nI. BACKGROUND\n{2} At approximately 2:20 a.m. on September 15, 2005, ten-year-old Carlos Perez (Victim) was shot to death while sleeping in the bedroom he shared with his older brother, Ruben Perez (Ruben), at the Gatewood Apartment Complex in Clovis, New Mexico. Nine gunshots were fired through the boys\u2019 bedroom window, one of which struck Victim in the head, causing his death.\n{3} At trial, the State adduced the following relevant evidence regarding the shooting. On September 14, 2005, Ruben, a junior at Clovis High School, was threatened at knife point by Orlando Salas (Orlando). Orlando informed Ruben that his older brother, Defendant, wanted to fight him. It was arranged that Ruben and Defendant would fight after school. Ruben reported to the designated location for the fight, but Defendant never appeared. Ruben went home and later went to sleep in the bedroom that he shared with Victim.\n{4} That night, Defendant and Orlando picked up Melissa Sanchez (Melissa), a student at Clovis High School. Defendant was driving a white Suburban with a blue pinstripe and carrying a loaded .22 caliber revolver. Defendant drove Orlando, Melissa, and his codefendant, David Griego, to the Gatewood Apartment Complex, where he asked Melissa to point out the apartment in which Ruben, whom he referred to as a \u201csewer rat,\u201d lived. Melissa complied by pointing out Ruben\u2019s apartment window.\n{5} Defendant then drove to Eric Gutierrez\u2019s (Eric) house, which was located approximately two blocks away from Ruben\u2019s apartment. Defendant ordered Orlando and Melissa to get out of the vehicle, explaining that he had to \u201cgo do some business\u201d and that he had \u201ca mission.\u201d Soon thereafter, Defendant and Griego returned, acting \u201chyped up\u201d like \u201cthey just got a rush out of something.\u201d Defendant informed Melissa that he had just \u201cblasted nine rounds at that sewer rat\u2019s house.\u201d\n{6} At this point, Defendant, Griego, Eric, Orlando, and Melissa heard on the police scanner that an eleven-year old boy had been shot and that the police were looking for a \u201cwhite Suburban with blue lines around [it].\u201d Defendant \u201cstarted flipping out\u201d and insisted upon parking his Suburban in Eric\u2019s garage. Melissa became upset and reached out toward Defendant, but he informed her that she should not touch him because he had gun powder residue on him. That night and the next day, Defendant repeatedly threatened Melissa \u201cto keep [her] mouth shut or else.\u201d\nII. DISCUSSION\nA. Whether the Trial Court Properly Granted the State\u2019s Second Motion to Reconsider a Change of Venue\n{7} Defendant claims that, due to the public excitement and local prejudice surrounding this ease, he could not obtain a fair trial in the Ninth Judicial District, which is composed of Curry County and Roosevelt County. Defendant argues that the trial court, Judge Joe Parker, therefore properly ordered a change of venue to Lea County, which is located in the Fifth Judicial District, and that Judge David W. Bonem improperly reconsidered and modified Judge Parker\u2019s order, resulting in a second change of venue to Roosevelt County in the Ninth Judicial District.\n{8} The following additional facts and procedural history are relevant to Defendant\u2019s claim. Prior to trial, Defendant requested a change of venue, claiming that \u201c[t]his case has received extensive publicity\u201d and, therefore, \u201cDefendant cannot receive a fair trial in the County of Curry, State of New Mexico, and this case should be moved to another Judicial District.\u201d Defendant suggested that venue must be changed to a neighboring county outside of the Ninth Judicial District, such as Lea or Chavez County, to preserve Defendant\u2019s right to a fair trial. Judge Parker asked Defendant whether he \u201c[had] any numbers\u201d to support his change of venue motion. Defendant responded that he did not have any numbers because a survey of prospective jurors would have been cost prohibitive.\n{9} The State opposed Defendant\u2019s change of venue motion, claiming that (1) Defendant had failed to file an affidavit as required by Section 38-3-3(B), (2) the ease had not received extensive publicity, and (3) Defendant had failed to produce any evidence indicating that an impartial jury could not be obtained in Curry County. Alternatively, the State argued that if a change of venue is appropriate, then the case must be moved to another county free from exception within the same judicial district, which in this case, would be Roosevelt County.\n{10} Defendant acknowledged that it would be \u201csomewhat easier\u201d to' choose a jury in Roosevelt County, but stated that his \u201cinstincts tell [him] real clear that people there are going to have a few percentage points less knowledge than people in Curry County.\u201d However, Defendant informed Judge Parker that he would defer to the court\u2019s discretion with respect to whether Roosevelt County is an appropriate venue.\n{11} At the conclusion of the hearing, Judge Parker found, based on his own personal experience as a member of the community, that the case had been subject to extensive trial publicity. Judge Parker held that \u201cjustice in this matter will be better served by having the jury, the jury pool selected from out of county and having this matter heard in a neighboring county.\u201d Accordingly, Judge Parker ordered venue to be changed from Curry County to Lea County.\n{12} Thereafter, the State filed a motion for reconsideration, arguing in relevant part that Defendant had \u201cfailed to produce any evidence that [he] would be deprived of a fair and impartial jury if the jurors were selected from Curry County.\u201d Additionally, the State argued that a change of venue to Lea County would impose a considerable burden on the witnesses and the family of Victim, who will have to travel from Curry County to Lea County to attend the trial. The State pointed out that, even if a change of venue is appropriate, then the case should be moved to Roosevelt County, which \u201c[hadn\u2019t] even published an article about this [case] in a long time.\u201d\n{13} Judge Parker denied the State\u2019s motion for reconsideration, explaining: \u201cI\u2019m not convinced that I\u2019m without the appropriate discretion to change the venue. It was my opinion at that time and I haven\u2019t abandoned that opinion____I\u2019ll continue in my position that this matter will be tried in Lea County.\u201d The State objected because Judge Parker had failed \u201cto make findings on the record with regard to why we can\u2019t have [the trial] in Roosevelt County.\u201d Judge Parker found that Roosevelt County was an inappropriate venue because of \u201cthe sense of excitement about the case\u201d and that Section 38-3-3 provides \u201csufficient leeway and discretion to make its findings for the trying of this case.\u201d\n{14} The State filed a second motion for reconsideration of Judge Parker\u2019s change of venue order. Thereafter, retired District Court Judge Bonem was assigned to serve as Judge Pro Tempore in this case. On August 29, 2007, Judge Bonem held a hearing on the State\u2019s motion. At the outset, Defendant clarified that the State\u2019s motion is \u201ca motion to reconsider a ruling on a motion to reconsider\u201d because the parties \u201calready had the hearing on the Motion to Reconsider.\u201d The State conceded that it had previously filed a motion for reconsideration, but stated that \u201cwith all due respect to Judge Parker, [it] did not believe that the Court specifically followed the law in all of the things necessary to consider a change of venue.\u201d At the hearing, both the State and Defendant reiterated the same arguments that they previously had presented to Judge Parker.\n{15} Judge Bonem upheld \u201cthe previous ruling that the venue from Curry County shall be changed.\u201d However, according to Section 38-3-7, \u201cwhere a change of venue is granted, the case shall be removed to another county within the same judicial district unless the remaining counties are subject to exception.\u201d Judge Bonem determined that Roosevelt County was not subject to exception because\nRoosevelt County has received approximately one-half fl\u00e9) of the trial pretrial publicity that Curry County has been subjected to. The Court further finds that media coverage of this case has been essentially non-existent in Roosevelt County in the past seven (7) months of the date of this order. The Court further finds that substantial time has passed since the alleged incident in question, approximately one (1) year and eleven (11) months.\nAccordingly, Judge Bonem held that \u201cthe appropriate venue of this ease shall be the Ninth Judicial District, Roosevelt County.\u201d\n{16} \u201cThis Court reviews a grant or denial of a motion for change of venue under an abuse of discretion standard.\u201d State v. Barrera, 2001-NMSC-014, \u00b6 11, 130 N.M. 227, 22 P.3d 1177. \u201cThe trial court\u2019s discretion in this matter is broad and will not be disturbed on appeal unless a clear abuse of that discretion can be demonstrated. The burden of establishing an abuse of discretion is borne by the party that opposes the trial court\u2019s venue decision.\u201d State v. House, 1999-NMSC-014, \u00b6 31, 127 N.M. 151, 978 P.2d 967 (citation omitted).\n{17} Additionally, this Court will uphold the trial court\u2019s ruling on a change of venue motion if it is supported by substantial evidence. See Barrera, 2001-NMSC-014, \u00b6 12, 130 N.M. 227, 22 P.3d 1177; House, 1999-NMSC-014, \u00b6 32, 127 N.M. 151, 978 P.2d 967.\nSubstantial evidence consists of relevant evidence that might be accepted by a reasonable mind as adequate to support a conclusion. This Court resolves all disputed facts and draws all reasonable inferences in favor of the successful party and disregards all evidence and inferences to the contrary, viewing the evidence in the light most favorable to the trial court\u2019s decision. We must be mindful that it is the role of the trial court, and not the appellate court, to weigh the evidence and determine the credibility of witnesses. We do not substitute our own judgment for a determination of the trial court supported by substantial evidence.\nBarrera, 2001-NMSC-014, \u00b6 12, 130 N.M. 227, 22 P.3d 1177 (citations omitted).\n{18} We begin our analysis with a brief review of the statutes governing a change of venue motion. Section 38-3-3(B)(3) provides:\nThe venue in all civil and criminal cases shall be changed, upon motion, to another county free from exception ... when the party moving for a change files in the case an affidavit of himself, his agent or attorney, that he believes he cannot obtain a fair trial in the county in which the case is pending because ... of public excitement or local prejudice in the county in regard to the case or the questions involved in the case, an impartial jury cannot be obtained in the county to try the case____\nSection 38-3-7 further provides:\nIn all cases where a change of venue is granted, the case shall be removed to another county within the same judicial district unless the remaining counties are subject to exception, or unless the change of venue is ordered upon any of the grounds relating to the judge. Under these circumstances, the case shall be removed to some county of the nearest judicial district which is free from exception.\nTo resolve the issue on appeal, we must determine whether Roosevelt County is \u201csubject to exception\u201d under Sections 38-3-3 and 38-3-7.\n{19} The record reflects that Defendant failed to adduce any evidence in support of his claim that he could not obtain a fair trial in Roosevelt County. For example, Defendant failed to produce any witnesses, file any affidavits, admit any media articles, or submit any juror questionnaires exhibiting bias or prejudice. Although defense counsel represented to the court that there was extensive public excitement and media coverage surrounding this case, it is well established that \u201c[argument of counsel is not evidence.\u201d State v. Cochran, 112 N.M. 190, 192, 812 P.2d 1338, 1340 (Ct.App.1991). Accordingly, the evidence was insufficient to establish that Roosevelt County was subject to exception, and Judge Bonem properly ordered venue to \u201cbe removed to another county within the same judicial district\u201d as Curry County in accordance with Section 38-3-7.\nB. Whether the Trial Court Properly Ruled on the Parties\u2019 Batson Challenges\n{20} We next address whether the trial court properly ruled that Defendant\u2019s peremptory strike against a white male venireperson violated Batson, whereas the State\u2019s peremptory strikes against Hispanic venirepersons did not. The following additional facts and procedural history are relevant to this claim. Defendant and his co-defendant, Griego, received a total of fourteen peremptory challenges to exercise against regular jurors and two peremptory challenges to exercise against alternate jurors. The State received the same number of peremptory challenges.\n{21} During jury selection, the State raised a Batson challenge, pointing out that Defendant had used nine of his fourteen peremptory challenges to strike \u201call the white males on [the] jury panel.\u201d In response, the trial court asked Defendant to supply a rational basis for the last three venirepersons struck. Defendant provided a race neutral explanation for each venireperson, after which the trial court stated that it had been \u201calerted to the [State\u2019s] concern and [it] will respond appropriately if the pattern continues.\u201d Shortly thereafter, Defendant exercised his tenth peremptory challenge on a white male. Defendant sua sponte proffered a rational basis for this peremptory challenge, and jury selection continued.\n{22} Defendant subsequently exercised his eleventh peremptory challenge on Juror 19, a white male. The State renewed its Batson challenge. The trial court noted that \u201cMuring proceedings, [Juror 19 had] indicated that if the case went until the fifth he would be out on a cattle check.\u201d A discussion took place off the record, after which the trial court asked Defendant to provide a race-neutral explanation for striking Juror 19. Defendant explained:\nWe based it on his questionnaire and his responses and a tactical reason. Because I don\u2019t want him as foreman on this jury. And I don\u2019t think that that has anything to do with his race, it has everything to do with his power. And the other thing, he\u2019s a crime victim.\nAnd counsel for co-defendant in this case \u2014 well, the reason we think he\u2019s going to be foreman is because he\u2019s got a Ph.D., and I don\u2019t want one person controlling this jury, and he will. And that\u2019s our tactical reason, primarily that.\nAnd the other thing is is that, you know, I\u2019m a rancher as well and I know what that stuff means, and I just \u2014 if we\u2019re getting down to the last day and they\u2019re deliberating into that day or two days before, I mean, I think we\u2019ll be finished with ornease, but if this case is close and they\u2019re deliberating, he\u2019s going to push this jury to a verdict. I\u2019m not going to like the verdict.\n{23} The State questioned the veracity of Defendant\u2019s facially neutral explanation, noting that \u201cevery single one\u201d of the other jurors accepted by Defendant \u201cis either a victim of a crime or has served as a juror before.\u201d In particular, the State pointed out that Defendant had accepted Juror 17, \u201cwho is a prior foreman of a jury.\u201d The State argued that Defendant\u2019s facially neutral explanation was pretext for a discriminatory motive, noting that Defendant had used all of his peremptory strikes thus far to eliminate \u201cone hundred percent of [the] white males\u201d from the jury.\n{24} In response, Defendant explained that his general trial strategy was to exclude crime victims and male venirepersons with prior jury experience because he was afraid that they would end up \u201ctaking control [of the jury] because [they have] all that experience. That\u2019s a real sensitive issue for us with some of these powerful men on this jury.\u201d Defendant further explained that it had been his\nexperience doing a number of trials, especially with jury panels that have been there for a long period of time, they have a tendency to favor the State after they\u2019ve [served] two or three times. And it\u2019s not based on race, it\u2019s based on prior jury service and the fact that the more they serve, the more convictions the State gets.\n{25} Defendant clarified that he was striking \u201cpowerful\u201d men with prior jury experience because he feared that they \u201cwould end up controlling the jury, particularly against the women on the jury.\u201d Additionally, Defendant noted that \u201cone of the key witnesses in this case is a young woman. And [he happened] to think that frankly fathers have \u2014 don\u2019t judge the credibility of young females as well as mothers do. That\u2019s defining my strategy, it has nothing to do with their race.\u201d The trial court held that Defendant had failed to provide a neutral explanation sufficient to justify the use of a peremptory challenge against Juror 19 and, therefore, struck Defendant\u2019s peremptory challenge and seated Juror 19 on the jury.\n{26} Thereafter, the State peremptorily struck three Hispanic venirepersons: Jurors 56, 85, and 28. Defendant raised a Batson challenge, and the State sua sponte provided a race-neutral explanation for each: \u201c[Juror 28] was asleep during my jury selection, so that was a concern that I had, so that\u2019s why we struck her. And [Juror 85], she \u2014 we know her father, but I know her as being involved in crimes that I myself have prosecuted her on. So I struck her.\u201d With respect to Juror 56, the State explained that his \u201cson and granddaughter are defendants \u2014 or were [defendants in this district, and that\u2019s the reason we struck him.\u201d\n{27} Defendant admitted that the State had provided \u201ca valid reason for striking [the] juror[s],\u201d but objected to the challenges because the information was \u201conly privy to the State.\u201d Defendant argued that the State should have shared the information with the defense so that it \u201ccould have dealt with that issue. Because that changes the strategy of picking a jury for us whenever you have three people like that.\u201d In response, the State pointed out that the information was available to Defendant because it was provided in the juror questionnaires.\n{28} Defendant complained that, in total, the State had struck \u201cfive out of eight\u201d Hispanic venirepersons. The trial court asked the State to provide a race-neutral explanation for the two prior peremptory challenges. The State explained that it had struck Juror 51, a Hispanic female, because \u201cshe is familiar with Jonathan Carver in this case. Jonathan Carver is a witness, he\u2019s a potential witness in this case and was assisting David Griego and [Defendant] with a place to stay while he allegedly came up with what they were going to do after the homicides.\u201d With respect to Juror 57, who is also a Hispanic female, the State explained that she was struck because her uncle previously had been represented by defense counsel.\n{29} The trial court found that the State had provided a race-neutral explanation for each of its peremptory strikes and, therefore, denied Defendant\u2019s Batson challenge. The trial court pointed out that the explanations provided by the State were \u201cdifferent than striking a person as a male, a person that would be powerful.\u201d\n{30} It is well established that neither the State nor a defendant may \u201cduring the jury selection process, use [their] peremptory challenges to exclude otherwise unbiased and well-qualified individuals solely on the basis of their race, gender, economic status, or any other similar discriminatory characteristic.\u201d House, 1999-NMSC-014, \u00b6 84, 127 N.M. 151, 978 P.2d 967; see also J.E.B. v. Alabama, 511 U.S. 127, 129, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (holding that \u201cgender, like race, is an unconstitutional proxy for juror competence and impartiality\u201d); Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (holding that \u201cthe Constitution prohibits a criminal defendant from engaging in purposeful discrimination ... in the exercise of peremptory challenges\u201d). Such invidious discrimination violates the Equal Protection Clause of the United States Constitution and \u201ccauses harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process.\u201d J.E.B., 511 U.S. at 140, 114 S.Ct. 1419.\n{31} The United States Supreme Court has adopted a three-part test to determine whether peremptory challenges have been exercised in a discriminatory manner. First, the opponent of a peremptory challenge bears the burden to establish a prima facie case indicating that the peremptory challenge has been exercised in a discriminatory way (step one). See Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). To make a prima facie showing, a party must prove that (1) a peremptory challenge was used to remove a member of a protected group from the jury panel, and (2) the facts and other related circumstances raise an inference that the individual was excluded solely on the basis of his or her membership in a protected group. See State v. Bailey, 2008-NMCA-084, \u00b6 14, 144 N.M. 279, 186 P.3d 908; State v. Martinez, 2002-NMCA-036, \u00b6 11, 131 N.M. 746, 42 P.3d 851.\n{32} If the opponent of the peremptory challenge successfully makes a prima facie showing, then the burden shifts to the proponent of the challenge to come forward with a race or gender-neutral explanation (step two). See Purkett, 514 U.S. at 767, 115 S.Ct. 1769. \u201cThe second step of this process does not demand an explanation that is persuasive, or even plausible.\u201d Id. at 767-68, 115 S.Ct. 1769. Rather, the issue is the facial validity of the proffered explanation. \u201cUnless a discriminatory intent is inherent in the [party\u2019s] explanation, the reason offered will be deemed race [or gender]-neutral.\u201d Id. at 768, 115 S.Ct. 1769. \u201cIf a [race or gender]-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial [or gender] discrimination.\u201d Id. at 767, 115 S.Ct. 1769. \u201c[T]he ultimate burden of persuasion regarding racial [or gender] motivation rests with, and never shifts from, the opponent of the strike.\u201d Id. at 768, 115 S.Ct. 1769.\n{33} We review the trial court\u2019s \u201cfactual findings regarding a Batson challenge using a deferential standard of review, as it is the responsibility of the [trial] court to (1) \u2018evaluate the sincerity of both parties,\u2019 (2) \u2018rely on its own observations of the challenged jurors,\u2019 and (3) \u2018draw on its experience in supervising voir dire.\u2019 \u201d Bailey, 2008-NMCA-084, \u00b6 15, 144 N.M. 279, 186 P.3d 908 (quoting Martinez, 2002-NMCA-036, \u00b6 20, 131 N.M. 746, 42 P.3d 851). However, we apply a de novo standard of review to the ultimate issue of constitutionality. Jones, 1997-NMSC-016, \u00b6 11, 123 N.M. 73, 934 P.2d 267.\n1. Defendant\u2019s Peremptory Challenges\n{34} The record reflects that Defendant used his peremptory challenges to strike every single white male from the jury pool. \u201cCourts are in near universal agreement ... that a party\u2019s decision to strike all the members of a particular race [or gender] establishes a prima facie ease of discrimination.\u201d Martinez, 2002-NMCA-036, \u00b6 24, 131 N.M. 746, 42 P.3d 851; see also Batson, 476 U.S. at 97, 106 S.Ct. 1712 (noting that \u201ca \u2018pattern\u2019 of strikes against black jurors included in the particular venire might give rise to an inference of discrimination\u201d). Accordingly, the State established a prima facie case of discrimination.\n{35} We next address whether Defendant provided a facially neutral explanation for exercising his eleventh peremptory challenge on Juror 19, a white male. Defendant explained that he struck Juror 19 because Juror 19 was a crime victim with prior jury experience. Additionally, Juror 19 had a Ph.D., which led Defendant to believe that he might become the foreperson of the jury and Defendant did not \u201cwant him as foreperson on this jury\u201d because he might end up \u201ccontrolling this jury.\u201d Additionally, Defendant was concerned that Juror 19 might \u201cpush this jury to a verdict\u201d because of his responsibilities as a cattle rancher. The reasons proffered by Defendant were both specific to Juror 19 and facially neutral and, therefore, satisfied step two of the Batson test. See Jones, 1997-NMSC-016, \u00b6 5, 123 N.M. 73, 934 P.2d 267 (holding that \u201cchallenging a juror for failure to make eye contact and lack of assertiveness is a racially neutral, specific reason,\u201d for exercising a peremptory challenge, which satisfies step two of the Batson test); Bailey, 2008-NMCA-084, \u00b6 19, 144 N.M. 279, 186 P.3d 908 (holding that challenging a potential juror for unresponsiveness during voir dire is a racially neutral reason for exercising a peremptory challenge, which satisfies step two of the Batson test).\n{36} However, the trial court did not find Defendant\u2019s facially neutral explanation to be credible and, therefore, held that Defendant\u2019s peremptory challenge failed under step three of the Batson test. We conclude that the record amply supports the trial court\u2019s factual finding regarding Defendant\u2019s discriminatory motive. First, Defendant explicitly acknowledged that his trial strategy was gender motivated, stating that he was striking men in lieu of women because \u201cfathers ... don\u2019t judge the credibility of young females as well as mothers do,\u201d and because he thought that \u201can analytical woman would probably give [Defendant] a fairer shake.\u201d Second, the trial court reasonably could have found that Defendant\u2019s trial strategy was racially motivated. Although Defendant claimed that he was exercising his peremptory challenges to strike all male venirepersons with prior jury experience, regardless of race, the State pointed out that Defendant previously had accepted non-white male venirepersons with prior jury experience. Thus, the trial court reasonably could have found that Defendant\u2019s facially neutral explanation was pretextual. Accordingly, the trial court did not abuse its discretion by affirming the State\u2019s Batson challenge and seating Juror 19 on the jury.\n2. The State\u2019s Peremptory Challenges\n{37} Defendant claims that the State failed to provide a race-neutral reason for striking five out of eight Hispanic venirepersons from the jury. Essentially, Defendant claims that, if his proffered reasons were not race-neutral, then a fortiori, the State\u2019s proffered reasons were not race-neutral either.\n{38} The State explained that it had struck Juror 28 because she fell asleep during voir dire, Juror 85 because she was involved in crimes prosecuted by the prosecutor, and Juror 56 because his son and granddaughter were defendants in the Fifth Judicial District. Additionally, the State struck Juror 51 because she was familiar with a potential witness in the case and Juror 57 because her uncle previously had been represented by defense counsel. The trial court properly found that the State\u2019s explanations were neither inherently discriminatory nor pretextual. The State focused on the answers provided by each of the venirepersons and their conduct during voir dire to provide reasonable and facially neutral reasons for their exclusion. Nothing in the State\u2019s answers alluded, either explicitly or implicitly, to the juror\u2019s gender, race, or ethnicity. Accordingly, we hold that the trial court properly rejected Defendant\u2019s Batson challenge.\nC. Whether the Cumulative Impact of the Errors That Occurred at Trial Deprived Defendant of a Fair Trial\n{39} Lastly, Defendant claims that the cumulative impact of the trial court\u2019s erroneous rulings resulted in cumulative error, thereby depriving him of a fair trial. \u201cThe doctrine of cumulative error applies when multiple errors, which by themselves do not constitute reversible error, are so serious in the aggregate that they cumulatively deprive the defendant of a fair trial.\u201d State v. Roybal, 2002-NMSC-027, \u00b6 33, 132 N.M. 657, 54 P.3d 61. \u201cIn New Mexico the doctrine of cumulative error is strictly applied. It cannot be invoked when the record as a whole demonstrates that the defendant received a fair trial.\u201d State v. Trujillo, 2002-NMSC-005, \u00b6 63, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citations omitted).\n{40} There was no error in this case and, therefore, Defendant received a fair trial. Accordingly, Defendant\u2019s cumulative error claim is rejected. See State v. Martin, 101 N.M. 595, 601, 686 P.2d 937, 943 (1984) (holding that the cumulative error \u201cdoctrine cannot be invoked if no irregularities occurred or if the record as a whole demonstrates that a defendant received a fair trial\u201d (citation omitted)); State v. Casillas, 2009-NMCA-034, \u00b6 51, 145 N.M. 783, 205 P.3d 830 (\u201cBecause there was no error, ... there was no cumulative error.\u201d).\nIII. CONCLUSION\n{41} For the foregoing reasons, we affirm Defendant\u2019s convictions.\n{42} IT IS SO ORDERED.\nWE CONCUR: CHARLES W. DANIELS, Chief Justice, PATRICIO M. SERNA, RICHARD C. BOSSON, and EDWARD L. CH\u00c1VEZ, Justices.\n. Defendant was tried jointly with his co-defendant, David Griego, who is not a party to this appeal.\n. Because Defendant and Griego exercised their peremptory challenges jointly, we hereinafter refer to Defendant and Griego collectively as \"Defendant.\u201d\n. However, this Court has stated that, if faced with a \"silly or superstitious\u201d explanation, it \"might be inclined to consider whether the New Mexico Constitution provides more protection from discrimination than is apparently provided under the Fourteenth Amendment after Purkett.\u201d State v. Jones, 1997-NMSC-016, \u00b6 9, 123 N.M. 73, 934 P.2d 267.", "type": "majority", "author": "MAES, Justice." } ], "attorneys": [ "Liane E. Kerr, L.L.C., Liane E. Kerr, Albuquerque, NM, for Appellant.", "Gary K. King, Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Appellee." ], "corrections": "", "head_matter": "2010-NMSC-028\n236 P.3d 32\nSTATE of New Mexico, Plaintiff-Appellee, v. Demetrio A. SALAS, Defendant-Appellant.\nNo. 30,967.\nSupreme Court of New Mexico.\nJune 15, 2010.\nLiane E. Kerr, L.L.C., Liane E. Kerr, Albuquerque, NM, for Appellant.\nGary K. King, Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Appellee." }, "file_name": "0313-01", "first_page_order": 347, "last_page_order": 356 }