State v. Hoxsie, 677 P.2d 620 (N.M. 1984). · Go Syfert
State v. Hoxsie, 677 P.2d 620 (N.M. 1984). Cases Citing This Book View Copy Cite
129 citation events (30 in the last 25 years) across 6 distinct courts.
Strongest positive: State v. Duran (nmctapp, 2009-08-21)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 39 distinct citers.
examined Cited as authority (verbatim quote) State v. Duran (2×) also: Cited as authority (quoted)
N.M. Ct. App. · 2009 · signal: see · quote attribution · 2 verbatim quotes · confidence high
an assertion of prejudice is not a 7 showing of prejudice.
examined Cited as authority (verbatim quote) State v. Baldonado (2×) also: Cited as authority (quoted)
N.M. Ct. App. · 1998 · signal: see · quote attribution · 2 verbatim quotes · confidence high
in the absence of prejudice, there is no reversible error.
examined Cited as authority (verbatim quote) State v. House (8×) also: Cited as authority (quoted), Cited "see"
N.M. Ct. App. · 1998 · signal: see · quote attribution · 4 verbatim quotes · confidence high
an assertion of prejudice is not a showing of prejudice.
examined Cited as authority (verbatim quote) State v. Casaus (2×) also: Cited as authority (quoted)
N.M. Ct. App. · 1996 · signal: see · quote attribution · 2 verbatim quotes · confidence high
in the absence of prejudice, there is no reversible error.
cited Cited as authority (rule) State v. Jaure
N.M. Ct. App. · 2013 · confidence medium
“In the absence of prejudice, there is no reversible error.” State v. Hoxsie, 8 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984), overruled on other grounds by Gallegos 9 v. Citizens Ins.
discussed Cited as authority (rule) Griego v. Rodriguez
N.M. Ct. App. · 2010 · confidence medium
However, “[a]n 2 assertion of prejudice is not a showing of prejudice.” State v. Hoxsie, 101 N.M. 7, 10 , 3 677 P.2d 620, 623 (1984), overruled on other grounds, Gallegos v. Citizens Ins. 4 Agency, 108 N.M. 722, 731 , 779 P.2d 99, 108 (1989).
cited Cited as authority (rule) Wylie v. Wylie
N.M. Ct. App. · 2010 · confidence medium
State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) 18 (stating that, “[a]n assertion of prejudice is not a showing of prejudice”), overruled 19 on other grounds, Gallegos v. Citizens Ins.
cited Cited as authority (rule) State v. Varela
N.M. · 1999 · confidence medium
“In the absence of prejudice, there is no reversible error.” State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984), overruled on other grounds by Gallegos v. Citizens Ins.
cited Cited as authority (rule) State v. Duffy
N.M. · 1998 · confidence medium
State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984), overruled on other grounds by Gallegos v. Citizens Ins.
discussed Cited as authority (rule) Ray Agard v. Leonard Portuondo, Superintendent of Fishkill Correctional Facility (2×)
2d Cir. · 1997 · confidence medium
State v. Smith, 82 Wash.App. 327 , 917 P.2d 1108, 1111-12 (1996) (no Sixth Amendment violation); State v. Hoxsie, 101 N.M. 7 , 677 P.2d 620, 622 (1984), overruled on other grounds by Gallegos v. Citizens Ins.
cited Cited as authority (rule) Matter of Ernesto M., Jr.
N.M. Ct. App. · 1996 · confidence medium
State v. Hoxsie, 101 N.M. 7,10 , 677 P.2d 620, 623 (1984), overruled on other grounds by Gallegos v. Citizens Ins.
discussed Cited as authority (rule) Gutierrez v. City of Albuquerque (2×)
N.M. Ct. App. · 1995 · confidence medium
Co., 118 N.M. 203, 209 , 880 P.2d 300, 306 (1994) (argument must contain citations to appropriate portions of the record that clearly show how the trial court erred); State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) (assertion of prejudice is not showing of prejudice), overruled on other grounds by Gallegos v. Citizens Ins.
cited Cited as authority (rule) State v. Villalobos
N.M. Ct. App. · 1995 · confidence medium
State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) (without prejudice, there is no reversible error), overruled on other ground by Gallegos v. Citizens Ins.
examined Cited as authority (rule) Paiz v. State Farm Fire & Casualty Co. (3×) also: Cited "see"
N.M. · 1994 · confidence medium
See SCRA 1986, 12-213(A) (appellant’s argument must contain citations to appropriate portions of record); State v. Hoxsie, 101 N.M. 7, 9 , 677 P.2d 620, 622 (1984) (appellant has burden of providing record sufficient to justify reversal), overruled on other grounds by Gallegos v. Citizens Ins.
discussed Cited as authority (rule) Gallegos Ex Rel. Gallegos v. Southwest Community Health Services
N.M. Ct. App. · 1994 · confidence medium
State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) (assertion of prejudice is not a showing of prejudice, and appellate court will not reverse in absence of prejudice), overruled on other grounds by Gallegos v. Citizens Ins.
discussed Cited as authority (rule) State v. Gonzales
N.M. · 1992 · confidence medium
See State v. Litteral, 110 N.M. 138, 143 , 793 P.2d 268, 273 (1990) (impeachment of witness, even if improper, not prejudicial error); State v. Duran, 107 N.M. 603, 608-09 , 762 P.2d 890, 895-96 (1988) (“[T]o establish a due process violation, and thus reversible error, the defendant must demonstrate prejudice.”); State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) (absent prejudice, no reversible error), rev’d on other grounds, Gallegos v. Citizens Ins.
cited Cited as authority (rule) State v. Duran
N.M. · 1988 · confidence medium
State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984).
cited Cited as authority (rule) State v. Sacoman
N.M. · 1988 · confidence medium
See SCRA 1986, 12-212; State v. Hoxsie, 101 N.M. 7, 9 , 677 P.2d 620, 622 (1984) (burden on appellant to designate pertinent exhibits as part of record on appeal).
cited Cited as authority (rule) State v. Taylor
N.M. · 1988 · confidence medium
State v. Smith, 104 N.M. 329, 334 , 721 P.2d 397, 402 (1986); State v. Hoxsie, 101 N.M. 7, 9 , 677 P.2d 620, 622 (1984). 5.
discussed Cited as authority (rule) State v. Boeglin
N.M. · 1987 · confidence medium
On the record before us, see State v. Hoxsie, 101 N.M. 7, 9 , 677 P.2d 620, 622 (1984), which includes only the admitted close-up photographs of the left and right sides of the victim’s neck and testimony regarding all the photographs, we cannot say as a matter of law that the danger of unfair prejudice arising from the admission of the gruesome left side photograph substantially outweighed its probative value.
discussed Cited as authority (rule) State v. Smith (2×)
N.M. · 1986 · confidence medium
NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 205 (Repl.Pamp. 1983); State v. Hoxsie, 101 N.M. 7, 9 , 677 P.2d 620, 622 (1984).
cited Cited "see" State v. Constelon
N.M. Ct. App. · 2015 · signal: see · confidence high
See State v. Hoxsie, 1984-NMSC-027 , ¶ 8, 101 N.M. 7 , 677 4 P.2d 620 (“In the absence of prejudice, there is no reversible error.”), rev’d on other 5 grounds, Gallegos v. Citizens Ins.
cited Cited "see" State v. Costelon
N.M. Ct. App. · 2015 · signal: see · confidence high
See State v. Hoxsie, 1984-NMSC-027 , ¶ 8, 101 N.M. 7 , 677 3 P.2d 620 (“In the absence of prejudice, there is no reversible error.”), rev’d on other 4 grounds, Gallegos v. Citizens Ins.
discussed Cited "see" State v. Lucero (2×)
N.M. Ct. App. · 2010 · signal: see · confidence high
See 5 generally State v. Hoxsie, 101 N.M. 7, 9 , 677 P.2d 620, 622 (1984) (observing that the 6 state has the right to inquire into and comment upon the credibility of defense 7 witnesses, including by inference that the testimony was tailored to be consistent with 8 other testimony), overruled on other grounds by Gallegos v. Citizens Ins.
discussed Cited "see" State v. Foster (2×)
N.M. Ct. App. · 1998 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7, 9 , 677 P.2d 620, 622 (1984), overruled on other grounds by Gallegos v. Citizens Ins.
examined Cited "see" Gary Randall Hoxsie v. Dareld Kerby, Warden Tom Udall, Attorney General for the State of New Mexico (3×)
10th Cir. · 1997 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7 , 677 P.2d 620, 622 (1984), overruled on other grounds by Gallegos v. Citizens Ins.
discussed Cited "see" Hoxsie v. Kerby (2×)
10th Cir. · 1997 · signal: see · confidence high
See State v. Hoxsie, 677 P.2d 620, 622 (N.M. 1984), overruled on other grounds by Gallegos v. Citizens Ins.
discussed Cited "see" Hartman v. Texaco Inc. (2×)
N.M. Ct. App. · 1997 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) ("An assertion of prejudice is not a showing of prejudice.
discussed Cited "see" State v. Woodward (2×)
N.M. · 1995 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984), overruled on other grounds by Gallegos, 108 N.M. at 731 , 779 P.2d at 108 ; State v. Luna, 93 N.M. 773, 781 , 606 P.2d 183, 191 (1980).
discussed Cited "see" State v. Sommer (2×)
N.M. Ct. App. · 1994 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) (an assertion of prejudice, without other evidence, does not constitute a showing of prejudice), overruled on other grounds by Gallegos v. Citizens Ins.
examined Cited "see" State v. Lamure (4×)
N.M. Ct. App. · 1992 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) (an assertion of prejudice is not a showing of prejudice), overruled on other grounds by Gallegos v. Citizens Ins.
discussed Cited "see" State v. Gutierrez (2×)
N.M. Ct. App. · 1992 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) (no reasonable probability that prosecutor’s comment contributed to the conviction) overruled on other grounds by Gallegos v. Citizens Ins.
discussed Cited "see" State v. Hennessy (2×)
N.M. Ct. App. · 1992 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984), overruled on other grounds by Gallegos v. Citizens Ins.
discussed Cited "see" State v. Allen (2×)
N.M. Ct. App. · 1992 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7 , 677 P.2d 620 (1984) (mere assertion of prejudice does not establish prejudice).
discussed Cited "see" State v. Gonzales (2×)
N.M. · 1991 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) (although substantial evidence may exist to support the verdict, prosecutorial misconduct cannot be deemed harmless unless the evidence is so overwhelming that there is no reasonable probability that the misconduct contributed to the conviction). 3.
discussed Cited "see" State v. Lara (2×)
N.M. Ct. App. · 1990 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7 , 677 P.2d 620 (1984), overruled on other grounds, Gallegos v. Citizens Ins.
discussed Cited "see" State v. Roybal (2×)
N.M. Ct. App. · 1988 · signal: see · confidence high
See State v. Hoxsie, 101 N.M. 7 , 677 P.2d 620 (1984).
discussed Cited "see, e.g." Corliss v. Eastern
N.M. Ct. App. · 2009 · signal: see, e.g. · confidence medium
See, e.g., Thornton v. Gamble, 101 N.M. 7 764, 769 , 688 P.2d 1268, 1273 (Ct. App. 1984) (stating that counsel must set out all 8 relevant facts in the docketing statement).
discussed Cited "see, e.g." State v. Huff (2×)
N.M. Ct. App. · 1998 · signal: see also · confidence low
See State v. Duran, 107 N.M. 603, 608-09 , 762 P.2d 890, 895-96 (1988) (“[T]o establish a due process violation, and thus reversible error, the defendant must demonstrate prejudice.”); see also State v. Hoxsie, 101 N.M. 7, 10 , 677 P.2d 620, 623 (1984) (absent prejudice, no reversible error), overruled on other grounds by Gallegos v. Citizens Ins.
STATE of New Mexico, Plaintiff-Appellee,
v.
Gary Randall HOXSIE, Defendant-Appellant
14998.
New Mexico Supreme Court.
Mar 7, 1984.
677 P.2d 620
Paul Bardacke, Atty. Gen., William Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee., Janet Clow, Chief Public Defender, Thomas Sullivan, Appellate Defender, William P. Slattery, Asst. Appellate Defender, Santa Fe, Charles B. Sanchez, Raul Sedillo, Belen, for defendant-appellant.
Federici, Riordan, Walters.
Cited by 61 opinions  |  Published
3 passages pin-cited by 4 cases
Pinpoint authority: #34,922 of 633,719
Citer courts: New Mexico Court of Appeals (5)

OPINION

FEDERICI, Chief Justice.

This is an appeal by Gary A. Hoxsie (defendant) from his convictions in Sandoval County District Court of first-degree murder, armed robbery and conspiracy to commit armed robbery. We affirm.

Defendant argues that prosecutorial misconduct deprived him of a fair trial in the following respects:

1. The prosecutor asked leading questions of the State’s witnesses. The practice was so flagrant that it led the court to admonish the prosecutor.

2. The prosecutor continued after objections and admonitions to ask repetitious questions which called for cumulative responses.

3. The prosecutor sought to impeach the defendant and co-defendant by reading from transcripts which had earlier been ruled inadmissible because it could not be said that the transcripts fairly and accurately reflected the witnesses’ tape-recorded statements.

4. The prosecutor moved for introduction into evidence an overabundance of demonstrative materials, in particular over sixty photographs of the victim’s wounds and the crime scene.

5. The prosecutor commented on the defendant’s exercise of his right to confront and cross-examine witnesses against him. The defendant was the last witness to testify for the defense in its case in chief. On cross-examination, the prosecutor inferred that the defendant was tailoring his testimony to be consistent with the evidence already presented.

6. The several types of prosecutorial misconduct stated in Points 1 through 5 constitute cumulative error.

This Court will not consider Points 1, 2 and 3 since they were not raised in defendant’s docketing statement and may not be raised for the first time in defendant’s briefs. NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 205 (Repl.Pamp. 1983); State v. Aranda, 94 N.M. 784, 617 P.2d 173 (Ct.App.1980); State v. Jacobs, 91 N.M. 445, 575 P.2d 954 (Ct.App.), cert. denied, 91 N.M. 491, 576 P.2d 297 (1978).

As to Point 4, the record shows that the prosecutor moved the admission of, and the trial court admitted, a great deal of demonstrative evidence in the form of slides and photographs. Timely, specific objections were made to the amount of such evidence. The pertinent slides and photographs were, however, not made a part of the record on appeal by defendant. NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 209 (Repl.Pamp.1983); State v. Duncan, 95 N.M. 215, 619 P.2d 1259 (Ct.App.1980). This is the defendant’s burden which he failed to sustain.

“Photographs are relevant and admissible for the purpose of clarifying and illustrating testimony”. State v. Gilbert, 100 N.M. 392, 399, 671 P.2d 640, 647 (1983). The fact that photographs are cumulative or repetitious does not, in and of itself, make them inadmissible as long as they are reasonably relevant to the issues of the case. State v. Hutchinson, 99 N.M. 616, 661 P.2d 1315 (1983). The admission into evidence of photographs is within the discretion of the trial court. State v. Stephens, 93 N.M. 368, 600 P.2d 820 (1979). Defendant has the burden of showing an abuse of that discretion. State v. Noble, 90 N.M. 360, 563 P.2d 1153 (1977). Defendant in this case has failed to meet that burden.

As to Point 5, the prosecutor’s comment on defendant’s right of confrontation was a proper inquiry as to whether defendant’s testimony had been tailored to the testimony of other witnesses. State v. Robinson, 157 N.J.Super. 118, 384 A.2d 569 (App.Div.), cert. denied, 77 N.J. 484, 391 A.2d 498 (1978). The purposes of the right of confrontation were respected. See State v. James, 76 N.M. 376, 415 P.2d 350 (1966). The State has a right to inquire into and comment upon the credibility of the defendant as a witness. See State v. Olguin, 88 N.M. 511, 542 P.2d 1201 (Ct.App.1975).

With reference to Point 6, cumulative error is not applicable in this case because even if errors occurred, they were not cumulatively prejudicial. State v. McGuinty, 97 N.M. 360, 639 P.2d 1214 (Ct.App. 1982). Further, the record discloses that the cumulative effect of any errors which may have occurred was slight in comparison with the evidence of guilt that was properly admitted. See State v. Luna, 93 N.M. 773, 606 P.2d 183 (1980).

The record in this case fails to show that the prosecutor’s actions prejudiced the defendant. See State v. Gomez, 82 N.M. 333, 481 P.2d 412 (Ct.App.1971). An assertion of prejudice is not a showing of prejudice. See State v. Gilbert, 100 N.M. 392, 671 P.2d 640 (1983). In the absence of prejudice, there is no reversible error. State v. Ranne, 80 N.M. 188, 453 P.2d 209 (Ct.App.1969).

On the general issue of prosecutorial misconduct, we note the rule that even though substantial evidence may exist to support the verdict, prosecutorial misconduct cannot be deemed harmless unless the evidence is “so overwhelming that there is no reasonable probability that the misconduct contributed to the conviction.” State v. Day, 91 N.M. 570, 573-74, 577 P.2d 878, 881-82 (Ct.App.), cert. denied, 91 N.M. 491, 576 P.2d 297 (1978); Cf. State v. Bartlett, 96 N.M. 415, 631 P.2d. 321 (Ct.App. 1981). In this case the record clearly shows that the evidence of guilt is so overwhelming that there is no reasonable probability that any misconduct which may have occurred contributed to the convictions. Under these circumstances any prosecutorial misconduct is harmless error.

The judgment and sentence of the trial court is affirmed.

IT IS SO ORDERED.

RIORDAN and WALTERS, JJ., concur.