harmless error in New Mexico

2026The harmless error 3 analysis is strictly case-by-case: “When assessing two cases that are factually 4 analogous, with similar errors, the reviewing court thus may find the impact of the 5 error harmful in one case and harmless in the other.” Tollardo, 2012-NMSC-008 , ¶ 6 44. 7 2.

2024The evidence of a defendant’s guilt apart from the error 15 “may often be relevant . . . since it will provide context for understanding how the 16 error arose and what role it may have played in the trial proceedings; but such 17 evidence . . . can never be the singular focus of the harmless error analysis.” 18 Tollardo, 2012-NMSC-008, ¶ 43 .

2013Co., 2012-NMCA-036, ¶ 21 , 273 P.3d 867 (“[Ejven if a district court makes an erroneous evidentiary ruling, it does not constitute reversible error unless it results in prejudice.”); Rule 11-103(A) NMRA (“A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party}.]”); City of Albuquerque v. Ackerman, 82 N.M. 360, 365 , 482 P.2d 63, 68 (1971) (“Harmless error in the exclusion of evidence cannot be the basis for a new trial.”).

2013Co., 2012-NMCA-036, ¶ 21 , 273 P.3d 867 (“[Ejven if a district court makes an erroneous evidentiary ruling, it does not constitute reversible error unless it results in prejudice.”); Rule 11-103(A) NMRA (“A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party}.]”); City of Albuquerque v. Ackerman, 82 N.M. 360, 365 , 482 P.2d 63, 68 (1971) (“Harmless error in the exclusion of evidence cannot be the basis for a new trial.”).

2024Interrogation and Harmless Error {16} The statements at issue here are those post-arrest statements made by Defendant related to Defendant having a drug problem and Defendant’s statement, “I did, but I had to come home you know,” made in response to the officer’s statement, “I didn’t put drugs into your system and make you drive tonight.” {17} Assuming, without deciding, that the statements at issue were given in response to a custodial interrogation and were, therefore, erroneously admitted into evidence, we conclude that those statements were harmless. {18} We “review violations of federal c

2024Interrogation and Harmless Error {16} The statements at issue here are those post-arrest statements made by Defendant related to Defendant having a drug problem and Defendant’s statement, “I did, but I had to come home you know,” made in response to the officer’s statement, “I didn’t put drugs into your system and make you drive tonight.” {17} Assuming, without deciding, that the statements at issue were given in response to a custodial interrogation and were, therefore, erroneously admitted into evidence, we conclude that those statements were harmless. {18} We “review violations of federal c

2022This is in contrast to later statements by our Supreme Court, as well as this Court, that the defendant has the initial burden of showing a nonconstitutional error was prejudicial, see, e.g., Astorga, 2015-NMSC-007, ¶ 43 (providing that, for nonconstitutional errors, “[the d]efendant bears the initial burden of demonstrating that he was prejudiced by the error” in the harmless error analysis); Cabral, 2021-NMCA-051, ¶ 35 (same), while the state appears to have the ultimate burden of showing the error was harmless, see, e.g., Serna, 2013-NMSC-033, ¶ 32 (observing, for a nonconstitutional error,

2014See State v. Serna, 2013-NMSC-033, ¶ 25 , 305 P.3d 936 (discussing the defendant’s cross-examination as part of the assessment of the amount of emphasis placed on erroneously admitted evidence); Tollardo, 2012-NMSC-008, ¶ 42 (“[T]he central inquiry of [the harmless error analysis is] whether an error was likely to have affected the jury’s verdict.”).

2004Under a harmless error analysis for evidentiary errors that do not violate a constitutional right, the Court evaluates whether substantial evidence supports the conviction, State v. Moore, 94 N.M. 503, 504 , 612 P.2d 1314, 1315 (1980), and assesses the strength of the State's case in relation to the excluded evidence, see id.

2004Under a harmless error analysis for evidentiary errors that do not violate a constitutional right, the Court evaluates whether substantial evidence supports the conviction, State v. Moore, 94 N.M. 503, 504 , 612 P.2d 1314, 1315 (1980), and assesses the strength of the State's case in relation to the excluded evidence, see id.

2013See State 11 v. Gallegos, 2005-NMCA-142, ¶ 32 , 138 N.M. 673 , 125 P.3d 652 , aff’d in part, rev’d 12 in part on other grounds, 2007-NMSC-007 , 141 N.M. 185 , 152 P.3d 828 (stating that 13 we apply a harmless error analysis to improperly admitted evidence). 14 {8} “Improperly admitted evidence is not grounds for a new trial unless the error 15 is determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25 , 275 P.3d 110 . 16 Here, Defendant alleges a violation of the rules of evidence; the error alleged is 17 therefore non-constitutional, see State v. Barr, 2009-NMSC-024, ¶ 53 , 146 N.M.

2013See State 11 v. Gallegos, 2005-NMCA-142, ¶ 32 , 138 N.M. 673 , 125 P.3d 652 , aff’d in part, rev’d 12 in part on other grounds, 2007-NMSC-007 , 141 N.M. 185 , 152 P.3d 828 (stating that 13 we apply a harmless error analysis to improperly admitted evidence). 14 {8} “Improperly admitted evidence is not grounds for a new trial unless the error 15 is determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25 , 275 P.3d 110 . 16 Here, Defendant alleges a violation of the rules of evidence; the error alleged is 17 therefore non-constitutional, see State v. Barr, 2009-NMSC-024, ¶ 53 , 146 N.M.

2013See State 11 v. Gallegos, 2005-NMCA-142, ¶ 32 , 138 N.M. 673 , 125 P.3d 652 , aff’d in part, rev’d 12 in part on other grounds, 2007-NMSC-007 , 141 N.M. 185 , 152 P.3d 828 (stating that 13 we apply a harmless error analysis to improperly admitted evidence). 14 {8} “Improperly admitted evidence is not grounds for a new trial unless the error 15 is determined to be harmful.” State v. Tollardo, 2012-NMSC-008, ¶ 25 , 275 P.3d 110 . 16 Here, Defendant alleges a violation of the rules of evidence; the error alleged is 17 therefore non-constitutional, see State v. Barr, 2009-NMSC-024, ¶ 53 , 146 N.M.

2013See, e.g., Aragon, 2010-NMSC- 15 008, ¶¶ 35, 37 (applying constitutional harmless error analysis where the erroneous 16 admission of hearsay reports violated the defendant’s confrontation rights); see also 17 Barr, 2009-NMSC-024,¶ 53 (distinguishing between the harmless error analysis in the 18 context of constitutional rights and non-constitutional rights and providing that a 20 1 non-constitutional harmless error analysis should apply where the error concerns a 2 violation of statutory law or court rules, such as an evidentiary ruling by the trial 3 court).

2025As Defendant acknowledges, “[t]he State did not need this additional evidence of intoxication when it already had [the arresting officer’s] testimony about his observations of [Defendant] and his performance on the field sobriety testing.” [MIO 8] See State v. Astorga, 2015-NMSC-007, ¶ 43 , 343 P.3d 1245 (holding that, absent a constitutional violation, an appellate court’s harmless error analysis looks to “whether there is a reasonable probability that the error affected the verdict”). {8} Lastly, Defendant continues to maintain that there was insufficient evidence to convict him of DWI becau

2022To determine if the error was harmful, we engage in a harmless error analysis, where “we look to whether there is a reasonable probability that the error affected the verdict.” State v. Astorga, 2015-NMSC-007, ¶ 43 , 343 P.3d 1245 .

2014See State v. Johnson, 2004-NMSC-029, ¶ 8 , 136 N.M. 348 , 98 P.3d 998 (stating that non-structural federal constitutional errors are subject to a harmless error analysis). {18} Pursuant to the Sixth Amendment to the United States Constitution, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This clause bars the admission of out-of-court statements that are “both testimonial and offered to prove the truth of the matter asserted},] . . . unless the declarant is unavailable and the defendant had a prior opportunity to cross-

2014See State v. Johnson, 2004-NMSC-029, ¶ 8 , 136 N.M. 348 , 98 P.3d 998 (stating that non-structural federal constitutional errors are subject to a harmless error analysis). {18} Pursuant to the Sixth Amendment to the United States Constitution, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This clause bars the admission of out-of-court statements that are “both testimonial and offered to prove the truth of the matter asserted},] . . . unless the declarant is unavailable and the defendant had a prior opportunity to cross-

2009Cf. State v. Day, 91 N.M. 570, 573-74 , 577 P.2d 878, 881-82 (Ct.App.1978) (stating that the proper harmless error standard in a case of prosecutorial misconduct was whether there was a reasonable probability that the misconduct contributed to the conviction). {54} The reasonableness standards provide elasticity that is responsive to the appropriate level of certainty needed before a reviewing court can pronounce an error harmless.

2009Cf. State v. Day, 91 N.M. 570, 573-74 , 577 P.2d 878, 881-82 (Ct.App.1978) (stating that the proper harmless error standard in a case of prosecutorial misconduct was whether there was a reasonable probability that the misconduct contributed to the conviction). {54} The reasonableness standards provide elasticity that is responsive to the appropriate level of certainty needed before a reviewing court can pronounce an error harmless.

2024We conclude that even assuming the admission of Exhibits 4 and 5 was error, any error was harmless. {20} When a nonconstitutional evidentiary error occurs, the harmless error standard of review only requires reversal “if there is a reasonable probability the inadmissible evidence contributed to the defendant’s conviction.” State v. Leyba, 2012-NMSC-037, ¶ 24 , 289 P.3d 1215 (alteration, internal quotation marks, and citation omitted).

2021See Leyba, 2012-NMSC-037, ¶ 24 .

2021See State v. Lovett, 2012-NMSC-036, ¶¶ 52-53 , 286 P.3d 265 (“In the context of failure to sever, we have sometimes called the harmless-error analysis a question of actual prejudice to the accused.”).

2021See State v. Lovett, 2012-NMSC-036, ¶¶ 52-53 , 286 P.3d 265 (“In the context of failure to sever, we have sometimes called the harmless-error analysis a question of actual prejudice to the accused.”).

2017We disagree. 14 Given the absence of timely objection by Defendant to the admission of the 3 15 complained-of evidence and Defendant’s failure to directly evoke the Confrontation 16 Clause as the basis for his motion to suppress, we could conclude that this issue 17 simply was not preserved, in which case we would review for fundamental error only. 18 See State v. Dietrich, 2009-NMCA-031, ¶ 51 , 145 N.M. 733 , 204 P.3d 748 (providing 19 that preserved Crawford Confrontation issues are analyzed under a harmless error 20 standard, while un-preserved Crawford issues are reviewed for fundamental e

2017We disagree. 14 Given the absence of timely objection by Defendant to the admission of the 3 15 complained-of evidence and Defendant’s failure to directly evoke the Confrontation 16 Clause as the basis for his motion to suppress, we could conclude that this issue 17 simply was not preserved, in which case we would review for fundamental error only. 18 See State v. Dietrich, 2009-NMCA-031, ¶ 51 , 145 N.M. 733 , 204 P.3d 748 (providing 19 that preserved Crawford Confrontation issues are analyzed under a harmless error 20 standard, while un-preserved Crawford issues are reviewed for fundamental e

2004See Neder, 527 U.S. at 17 , 119 S.Ct. 1827 (holding that where an erroneously omitted element is both uncontested and supported by overwhelming evidence, such error is harmless beyond a reasonable doubt); Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986) (listing "the overall strength of the prosecution's case" as one factor in the harmless error analysis).

2004See Neder, 527 U.S. at 17 , 119 S.Ct. 1827 (holding that where an erroneously omitted element is both uncontested and supported by overwhelming evidence, such error is harmless beyond a reasonable doubt); Delaware v. Van Arsdall, 475 U.S. 673, 684 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986) (listing "the overall strength of the prosecution's case" as one factor in the harmless error analysis).

2007State v. Gonzales, 2000-NMSC-028 , ¶ 32, 129 N.M. 556 , 11 P.3d 131 .

2007State v. Gonzales, 2000-NMSC-028 , ¶ 32, 129 N.M. 556 , 11 P.3d 131 .

2023Finally, evidence of guilt apart from the challenged testimony or commentary may remain relevant “in evaluating the likely impact on the jury of the constitutional error.” Alvarez-Lopez, 2004-NMSC-030, ¶ 32 . {8} In a harmless error analysis, we reverse “the conviction unless the [s]tate can demonstrate that the error was harmless beyond a reasonable doubt.” McDowell, 2018- NMSC-008, ¶ 7 (internal quotation marks and citation omitted).

2022Consequently, “in a proper harmless error analysis, the appellate court defers to the jury verdict only when the [s]tate has established beyond a reasonable doubt that the jury verdict was not tainted by the constitutional error.” Alvarez-Lopez, 2004-NMSC-030, ¶ 30 .

2021We “will not reverse unless the error actually prejudiced the defendant.” Gallegos, 2007-NMSC-007, ¶ 18 . “[A]ny error by the trial judge is harmless if it did not actually prejudice the defendant.” Garcia, 2011-NMSC-003, ¶ 19 .

2018The moving 5 party “bears the burden of establishing that he [or she] was actually prejudiced by a 6 failure to sever.” Id. 7 {25} We therefore proceed to address whether Defendant was actually prejudiced as 8 a result of the failure to sever; or, in other words, whether denial of his motion to 9 sever constituted a harmless error.

2025See State v. Griscom, 1984-NMCA-059 , ¶¶ 16-18, 101 N.M. 377 , 683 P.2d 59 (proceeding to a harmless error analysis without first resolving the primary evidentiary challenge).

2025See State v. Griscom, 1984-NMCA-059 , ¶¶ 16-18, 101 N.M. 377 , 683 P.2d 59 (proceeding to a harmless error analysis without first resolving the primary evidentiary challenge).

2022Finally, we “consider whether the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be a comment on the accused’s exercise of his or her right to remain silent.” State v. DeGraff, 2006-NMSC-011, ¶ 8 , 139 N.M. 211 , 131 P.3d 61 (internal quotation marks and citation omitted). {16} We first consider the testimony at issue.

2022Finally, we “consider whether the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be a comment on the accused’s exercise of his or her right to remain silent.” State v. DeGraff, 2006-NMSC-011, ¶ 8 , 139 N.M. 211 , 131 P.3d 61 (internal quotation marks and citation omitted). {16} We first consider the testimony at issue.