circumstances surrounding error in New Mexico

2023In conducting our review, we analyze the error on a case-by-case basis, “evaluat[ing] all of the circumstances surrounding the error, including examining the error itself, the source of the error, the emphasis on the error, and whether the error was cumulative or introduced new facts.” State v. Hernandez, 2017-NMCA-020, ¶ 20 , 388 P.3d 1016 .

2022“Reviewing courts are to evaluate all of the circumstances surrounding the error, including examining the error itself, the source of the error, the emphasis on the error, and whether the error was cumulative or introduced new facts.” State v. Hernandez, 2017-NMCA-020, ¶ 20 , 388 P.3d 1016 .

2026This includes (1) “an examination of the source of the error and the emphasis placed upon the error,” (2) “evidence of a defendant’s guilt separate from the error,” (3) “the importance of the erroneously admitted evidence in the prosecution’s case,” and (4) “whether the error was cumulative or instead introduced new facts.” Id. (alterations, internal quotation marks, and citation omitted). “[The d]efendant bears the initial burden of demonstrating that [they were] prejudiced by the error.” Astorga, 2015-NMSC-007, ¶ 43 . {4} At trial, the State sought admission of the underwear during its direc

2026State v. Sena, 2020-NMSC-011, ¶ 29 , 11 470 P.3d 227 (internal quotation marks and citation omitted). 12 {19} The effect of constitutional error and nonconstitutional error is evaluated 13 through the same lens: 14 “When assessing the probable effect of evidentiary error, courts should 15 evaluate all of the circumstances surrounding the error.

2026State v. Sena, 2020-NMSC-011, ¶ 29 , 11 470 P.3d 227 (internal quotation marks and citation omitted). 12 {19} The effect of constitutional error and nonconstitutional error is evaluated 13 through the same lens: 14 “When assessing the probable effect of evidentiary error, courts should 15 evaluate all of the circumstances surrounding the error.

2023We assess “the potential impact of an error on the outcome” by reviewing “all of the circumstances surrounding the error,” which include “the source of the error, the emphasis placed on the error, evidence of the defendant’s guilt apart from the error, the importance of the erroneously admitted evidence to the prosecution’s case, and whether the erroneously admitted evidence was merely cumulative.” Id. (alteration, internal quotation marks, and citation omitted).

2023“Reviewing courts are to evaluate all of the circumstances surrounding the error, including examining the error itself, the source of the error, the emphasis on the error, and whether the error was cumulative or introduced new facts.” Id. 1We note that Defendant also contends on appeal that the felon-in-possession charge should have been severed from the other charges because the failure to sever allowed the jury to consider this charge in addition to the other propensity evidence, contributing to the cumulative prejudicial effect of the propensity evidence.

2020“In the absence of prejudice, there is no reversible error.” State v. Fernandez, 1994-NMCA-056 , ¶ 13, 117 N.M. 673 , 875 P.2d 1104 . [I]n reaching a judgment as to the likely effect of the error, courts should evaluate all of the circumstances surrounding the error.

2020“In the absence of prejudice, there is no reversible error.” State v. Fernandez, 1994-NMCA-056 , ¶ 13, 117 N.M. 673 , 875 P.2d 1104 . [I]n reaching a judgment as to the likely effect of the error, courts should evaluate all of the circumstances surrounding the error.

2019To determine the effect the error had on the verdict, “[w]e examine all the circumstances surrounding the error; examine the importance to the prosecution’s case of the erroneously admitted evidence, and ask, among other things, whether the erroneously admitted evidence was cumulative or introduced new facts.” State v. Rivas, 2017-NMSC-022, ¶ 52 , 398 P.3d 299 . {52} Nicole testified that she saw the victim’s corpse, participated in the attempt to gather the spent shotgun-shell casings, and could readily deduce (apart from any admissions made by Gutierrez) that Gutierrez did indeed kill the vi

2018“We acknowledge the 9 Constitution guarantees criminal defendants a meaningful opportunity to present a 10 complete defense.” State v. Lasner, 2000-NMSC-038 , ¶ 24, 129 N.M. 806 , 14 P.3d 11 1282 (internal quotation marks and citation omitted).

2015As a result, 5 even if the admission of the State’s question was erroneous, the error does not require 6 reversal under either the plain or fundamental error doctrines. 7 {53} Defendant also suggests that we should evaluate the State’s question under the 8 standard applied to prosecutorial misconduct arising from the intentional introduction 9 of evidence about a defendant’s post-arrest silence, as in State v. Hennessy, 1992- 10 NMCA-069, ¶¶ 21-23, 114 N.M. 283 , 837 P.2d 1366 , overruled on other grounds by 11 Lucero, 1993-NMSC-064 .

2015As a result, 5 even if the admission of the State’s question was erroneous, the error does not require 6 reversal under either the plain or fundamental error doctrines. 7 {53} Defendant also suggests that we should evaluate the State’s question under the 8 standard applied to prosecutorial misconduct arising from the intentional introduction 9 of evidence about a defendant’s post-arrest silence, as in State v. Hennessy, 1992- 10 NMCA-069, ¶¶ 21-23, 114 N.M. 283 , 837 P.2d 1366 , overruled on other grounds by 11 Lucero, 1993-NMSC-064 .

2015Co., 1990-NMSC-094 , ¶ 11, 110 N.M. 741 , 799 P.2d 1113 (emphasis added); see Miller, 2003-NMCA-055, ¶ 9 (“If the allegations of the complaint or the alleged facts tend to show that an occurrence comes within the coverage of the policy, the insurer has a duty to defend regardless of the ultimate liability of the insured.” (Emphasis added.)). {11} Furthermore, an insurance company must “conduct such an investigation into the facts and circumstances underlying the complaint against its insured as is reasonable given the factual information provided by the insured or provided by the circumstances

2015Co., 1990-NMSC-094 , ¶ 11, 110 N.M. 741 , 799 P.2d 1113 (emphasis added); see Miller, 2003-NMCA-055, ¶ 9 (“If the allegations of the complaint or the alleged facts tend to show that an occurrence comes within the coverage of the policy, the insurer has a duty to defend regardless of the ultimate liability of the insured.” (Emphasis added.)). {11} Furthermore, an insurance company must “conduct such an investigation into the facts and circumstances underlying the complaint against its insured as is reasonable given the factual information provided by the insured or provided by the circumstances

2014These circumstances include “the source of the error [and] the emphasis placed on the error,” Serna, 2013-NMSC-033, ¶ 23 ; “the other, non-objectionable evidence of guilt, not for a sufficiency-of-the-evidence analysis, but to evaluate what role the error played at trial],]” State v. Leyba, 2012-NMSC-037, ¶ 24 , 289 P.3d 1215 ; “the importance ofthe erroneously admitted evidence in the prosecution’s case,” State v. Lovett, 2012-NMSC-036, ¶ 55 , 286 P.3d 265 (alteration, internal quotation marks, and citation omitted); and “whether the error was cumulative or instead introduced new facts[,]” To

2013State v. Branch, 2010-NMSC-042, ¶ 15 , 148 N.M. 601 , 241 P.3d 602 , overruled on other grounds by State v. Tollardo, 2012-NMSC-008 , 275 P.3d 110 . “[N]on-constitutional error is harmless when there is no reasonable probability the error affected the verdict.” State v. Tollardo, 2012-NMSC-008, ¶ 36 , 275 P.3d 110 (internal quotation marks and citation omitted). {23} When assessing the probable effect of evidentiary error, “courts should evaluate all of the circumstances surrounding the error.” Id. ¶ 43.

2013State v. Branch, 2010-NMSC-042, ¶ 15 , 148 N.M. 601 , 241 P.3d 602 , overruled on other grounds by State v. Tollardo, 2012-NMSC-008 , 275 P.3d 110 . “[N]on-constitutional error is harmless when there is no reasonable probability the error affected the verdict.” State v. Tollardo, 2012-NMSC-008, ¶ 36 , 275 P.3d 110 (internal quotation marks and citation omitted). {23} When assessing the probable effect of evidentiary error, “courts should evaluate all of the circumstances surrounding the error.” Id. ¶ 43.

2012Martinez, 1999-NMSC-018, ¶ 15 . 3 {12} As with adults, when determining whether a child has made a knowing, 4 voluntary, and intelligent waiver of Miranda rights, this Court assesses the totality 5 of the circumstances surrounding the waiver.

2009Lytle v. Jordan, 2001- 18 NMSC-016, ¶ 26, 130 N.M. 198 , 22 P.3d 666 . 6 1 {11} “The sixth amendment right to counsel imposes a duty upon defendant’s 2 counsel . . . to fairly investigate and assert appropriate defenses.” State v. Lewis, 104 3 N.M. 677 , 681, 726 P.2d 354 (Ct. App. 1986).

2009Stated another way, “[c]ounsel’s deficient performance must represent so serious a failure of the adversarial process that it undermines judicial confidence in the accuracy and reliability of the outcome.” Roybal, 2002-NMSC-027, ¶25 , 132 N.M. 657 , 54 P.3d 61 .

2009Stated another way, “[c]ounsel’s deficient performance must represent so serious a failure of the adversarial process that it undermines judicial confidence in the accuracy and reliability of the outcome.” Roybal, 2002-NMSC-027, ¶25 , 132 N.M. 657 , 54 P.3d 61 .

2004We have defined “frivolous or unfounded” as meaning an arbitrary or baseless refusal to pay, lacking any support in the wording of the insurance policy or the circumstances surrounding the claim: “Unfounded” in this context does not mean “erroneous” or “incorrect”; it means essentially the same thing as “reckless disregard,” in which the insurer “utterly fail[s] to exercise care for the interests of the insured in denying or delaying payment on an insurance policy.” [Jessen, 108 N.M. at 628 , 776 P.2d at 1247 .] It means an utter or total lack of foundation for an assertion of nonliability — a

2004We have defined “frivolous or unfounded” as meaning an arbitrary or baseless refusal to pay, lacking any support in the wording of the insurance policy or the circumstances surrounding the claim: “Unfounded” in this context does not mean “erroneous” or “incorrect”; it means essentially the same thing as “reckless disregard,” in which the insurer “utterly fail[s] to exercise care for the interests of the insured in denying or delaying payment on an insurance policy.” [Jessen, 108 N.M. at 628 , 776 P.2d at 1247 .] It means an utter or total lack of foundation for an assertion of nonliability — a

2003Cf. id.