November 07, 2011 – State of New Mexico v. Raymond Archuleta, No. 29,976

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: November 7, 2011

NO. 29,976

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

RAYMOND ARCHULETA,
Defendant: A ppellant.

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Eugenio S. Mathis, District Judge

Gary K. King, Attomey General
Andrea Sassa, Assistant Attomey General
Santa Fe, NM

for Appellee

Jacqueline L.. Cooper, Acting Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
GARCIA, Judge.
{1} 	On or about February 14, 2009, Defendant was found in possession of property
which the State alleged had been stolen from the home of Phillip Baca and Denise
Velarde. Defendant ran from police officers, depositing a stolen watch and a syringe
in a garbage bin. He was charged with burglary, possession of stolen property with
a value in excess of $500, possession of drug paraphernalia, tampering with evidence,
and resisting arrest. 	Defendant was ultimately acquitted of both burglary and
possession of drug paraphernalia, but convicted of all other charges. 	On appeal,
Defendant contends that: 	(1) the district court erred in denying his motions for a
continuance and to reappoint counsel after Defendant waived his right to counsel and
moved to represent himself; (2) there was insufficient evidence that Defendant
possessed stolen property with a value in excess of $500, a fourth-degree felony and,
thus, there was also insufficient evidence to support Defendant’s conviction for
tampering with evidence of a fourth-degree felony; (3) the admission of certain
statements by one of the State’s witnesses constituted fundamental error and violated
Defendant’s confrontation clause rights; and (4) cumulative error deprived Defendant
of his right to a fair trial. For the reasons that follow, we find no error and affirm.

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DISCUSSION
I. 	Defendant’s Motions for a Continuance and to Reappoint Counsel
{2} 	Defendant argues that the district court erred in denying his motions for a
continuance and to reappoint counsel. At trial, Defendant was initially represented by
counsel but, on June 23, 2009, Defendant requested that he be allowed to represent
himself. 	The court conducted an extensive inquiry, advising Defendant of the
potential consequences of choosing to proceed pro se. 	Throughout the inquiry,
Defendant continually maintained that he understood the risks and that he still wished
to represent himself. The district court granted his motion, finding that Defendant
had knowingly, voluntarily, and intelligently waived his right to counsel and relieved
Defendant’s counsel from his representation. 	On the same date, Defendant was
informed that the matter was scheduled for trial on September 10, 2009.
{3} 	On September 9, 2009, the day before trial, Defendant moved to continue the
trial, asserting that he was unprepared because he had not been able to physically see
some of the stolen items to prepare his case and because he had been able to spend
only approximately one hour in the detention center library since receiving additional
discovery from the State approximately two weeks earlier. The court asked Defendant
what specific items he needed to see, and he identified a cell phone, sunglasses, and
an earring, all being items which ultimately were not used in securing Defendant’s

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convictions. The court asked Defendant why the inventory list and photographs that
were in his possession were not sufficient, and Defendant merely maintained that he
was not given full discovery because he was not able to personally see all actual items.
The district court denied Defendant’s motion for a continuance and found that
Defendant had not provided sufficient reasons why he was unable to be prepared for
trial the next day.
{4} 	Immediately after Defendant’s motion to continue was denied, Defendant made
a motion to have counsel reappointed. 	Defendant asserted the same arguments he
made regarding his motion for a continuance, arguing that he had not had adequate
time to prepare his case and that he had not received full discovery. The district court
denied Defendant’s motion, stressing that Defendant was making the request the day
before trial when he had already waived his right to counsel and requested to represent
himself.
A. 	Defendant’s Motion for a Continuance
{5} 	The grant or denial of a motion for a continuance rests within the sound
discretion of the trial court, and the burden of establishing an abuse of discretion rests
with the defendant. State v. Sanchez, 120 N.M. 247, 253, 901 P.2d 178, 184 (1995);
see State v. Perez, 95 N.M. 262, 264, 620 P.2d 1287, 1289 (1980) (“[I]n the absence
of demonstrated abuse resulting in prejudice to the defendant there is no ground for

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reversal.”). 	“Trial judges necessarily require a great deal of latitude in scheduling
trials. Not the least of their problems is that of assembling the witnesses, lawyers, and
jurors at the same place at the same time, and this burden counsels against
continuances except for compelling reasons.” State v. Brazeal, 109 N.M. 752, 756,
790 P.2d 1033, 1037 (Ct. App. 1990) (internal quotation marks and citation omitted).
{6} 	Factors that a court considers when weighing the merits of a continuance
request are (1) the length of the delay, (2) the likelihood that a delay would
accomplish the movant’s objectives, (3) the existence of previous continuances in the
same matter, (4) the degree of inconvenience to the parties and the court, (5) the
legitimacy of the motives in requesting the delay, (6) the fault of the movant in
causing a need for the delay, and (7) the prejudice to the movant in denying the
motion. State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20. While
this was Defendant’s first request for a continuance, there were various additional
reasons justifying the court’s denial of Defendant’s motion. Defendant’s request came
the day before trial, after he had been previously informed and reminded on multiple
occasions of the upcoming trial date. 	The granting of Defendant’s eleventh-hour
motion would have likely caused significant inconvenience to the court and the State,
both of which had prepared for Defendant’s trial the following day. Additionally, the
factors regarding the likelihood that a delay would accomplish the movant’s objectives

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and the prejudice to the movant hold relatively little or no weight in this circumstance.
The evidence Defendant requested to physically inspect after it was viewed in the pre-
trial photographs was never offered or used against him. In addition, Defendant failed
to articulate how waiting one day to view the physical evidence rather than the
photographs of the evidence caused him any prejudice. Finally, Defendant’s reasons
for a continuance failed to identify a legitimate motive that justified postponing the
trial. As a result, Defendant did not meet his burden by sufficiently explaining why
Defendant’s limited time in the detention center library and the allegedly missing and
late discovery provided compelling reasons for a continuance. 	Under these
circumstances, we cannot say that the district court abused its discretion in denying
Defendant’s motion to continue.
B. 	Defendant’s Motion to Reappoint Counsel
{7} 	Defendant also challenges the court’s denial of his motion to reappoint counsel.
In State v. Vincent, we followed the lead of multiple out-of-state jurisdictions to hold
that once a defendant has validly waived his right to counsel, he may not later demand
the assistance of counsel as a matter of right. 2005-NMCA-064, ¶ 48, 137 N.M. 462,
112 P.3d 1119; see State v. Canedo-Astorga, 903 P.2d 500, 504 (Wash. Ct. App.
1995) (“After a competent defendant has made a valid waiver, reappointment is a
matter for the discretion of the trial court.”); State v. Gallegos, 2006 UT App 404, ¶

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10, 147 P.3d 473 (Utah Ct. App. 2006) (“A trial court’s denial of a motion to
reappoint counsel, where the motion follows a proper waiver of the right to counsel,
will be overturned only for an abuse of discretion.”); People v. Cruz, 147 Cal. Rptr.
740, 747 (Ct. App. 1978) (“The decision whether to reappoint counsel after a waiver
of that right appears to be a matter within the discretion of the trial court.”). However,
in exercising discretion, a trial court should consider all the facts and circumstances
of the case.
Because [s]elf-representation is a grave undertaking, one not to be
encouraged, the request for reappointment should be granted absent
reasons to deny. 	In some cases, however, there will be reasons to
deny—for example, that the request comes on the eve of or during trial,
and will delay or interrupt the trial if granted.
Canedo-Astorga, 903 P.2d at 504 (alteration in original) (footnote omitted) (internal
quotation marks omitted). 	We must review whether the district court abused its
discretion when it denied Defendant’s motion to reappoint counsel on the eve of trial.
{8} 	First, we now adopt the approach taken by the California Supreme Court in
People v. Lawrence to provide guidance to the trial court when determining whether
to grant a pro se defendant’s motion to reappoint counsel. 205 P.3d 1062, 1066-67
(Cal. 2009) (citing People v. Elliot, 139 Cal. Rptr. 205, 210-11 (Ct. App. 1977)).
There, the court suggested that a trial court should apply the following factors when
faced with a defendant’s request to reappoint counsel: 	(1) the defendant’s prior

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history 	in 	the 	substitution 	of 	counsel 	and 	in 	the 	desire 	to 	change 	from
self-representation to counsel-representation, (2) the reasons set forth for the request,
(3) the length and stage of the proceedings, (4) disruption or delay which reasonably
might be expected to ensue from the granting of such motion, and (5) the likelihood
of the defendant’s effectiveness in defending against the charges if required to
continue to act as his own attorney. Id.
{9} 	After considering the totality of the circumstances surrounding Defendant’s
request for reappointment of counsel, we conclude the district court did not abuse its
discretion in denying the request. Here, we note that Defendant had the benefits of
previously appointed counsel who assisted with his case before he moved to represent
himself. Defendant was thoroughly and adequately apprised by the district court of
the inherent risks involved in self-representation before he made a valid waiver of his
right to counsel. Months later, he moved to reappoint counsel on the day before trial
was set to begin.
{10} 	The district court found that Defendant’s offered reasons to reappoint counsel
were insufficient, and we agree. It was unclear what additional assistance Defendant
needed and why he felt the inventory list and photographs of the items in his
possession were inadequate to allow him to prepare his defense. He did not explain
or articulate why such a personal inspection of certain physical evidence seized from

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him at the time of arrest was needed to prepare his defense versus viewing the
evidence personally the following day at trial. Further, granting Defendant’s motion
would clearly have caused substantial delay to the proceedings, as the request came
on the eve of trial and would have required last minute rescheduling for the court,
witnesses, and jurors who had been secured to attend the following day. The case
itself was a relatively routine stolen property matter and Defendant never expressed
any concern regarding its nature or complexity. The dismissal of one of the original
charges and the not guilty verdict rendered on one other charge further attest to
Defendant’s ability to represent himself in an adequate manner. 	Under these
circumstances, we find no abuse of discretion in the denial of Defendant’s request for
reappointment of counsel.
{11} 	Defendant alternatively asks the Court to adopt the approach taken by the state
of Washington in State v. Silva, 27 P.3d 663, 673 (Wash. Ct. App. 2001) (holding that
the Washington Constitution affords a pretrial detainee who has exercised his
constitutional right to represent himself a right of reasonable access to state-provided
resources that will enable him to prepare a meaningful pro se defense). We decline
to do so. 	Because Defendant failed to advise the district court that he was either
requesting or asserting an expanded right under the New Mexico Constitution, this
issue is not properly before this Court. State v. Gomez, 1997-NMSC-006, ¶¶ 19, 22,

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122 N.M. 777, 932 P.2d 1 (where the provision has never before been addressed under
our 	interstitial 	analysis, 	trial 	counsel 	additionally 	must 	argue 	that 	the 	state
constitutional provision should provide greater protection, and suggest reasons as to
why, for example, “a flawed federal analysis, structural differences between state and
federal government, or distinctive state characteristics”).
II. 	Denise Velarde’s Statements Regarding the Value of the Stolen Property
{12} 	At trial, the State called Denise Velarde, who resided in the burglarized home
with her husband, Phillip Baca. Ms. Velarde testified to the items stolen from their
home and the value of those items, including an iPod valued at $150, tennis shoes
valued at $110, an internet card valued at $220, three cellular phone chargers valued
at $25 each, and a watch valued at $100. 	The State also entered into evidence
photographs of the stolen items which were taken by Phillip Baca prior to the
burglary. When testifying about the watch, Ms. Velarde stated that she knew how
much it was worth because her husband told her the value. 	Defendant argues on
appeal 	that 	the 	admission 	of 	Ms. 	Velarde’s 	testimony 	violated 	Defendant’s
confrontation clause rights because Ms. Velarde’s statement regarding the watch’s
value constituted inadmissible hearsay, and she otherwise did not indicate how she
had personal knowledge of the other items’ values.
{13} 	We note that Defendant failed to preserve the confrontation and personal

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knowledge issues in the district court. 	Because Defendant never objected to the
admission of the statements below, we only review the statements to determine
whether their admission created fundamental error. 	State v. Cunningham, 2000-
NMSC-009, ¶ 8, 128 N.M. 711, 998 P.2d 176; see State v. Martinez, 2007-NMSC-
025, ¶ 25, 141 N.M. 713, 160 P.3d 894 (reviewing a defendant’s Confrontation Clause
claim for fundamental error even though the issue was not preserved); State v.
Aguilar, 117 N.M. 501, 507, 873 P.2d 247, 253 (1994) (reviewing for fundamental
error based upon improper statements and arguments presented to the jury).
Fundamental error occurs only in “cases with defendants who are indisputably
innocent, 	and 	cases 	in 	which 	a 	mistake 	in 	the 	process 	makes 	a 	conviction
fundamentally unfair notwithstanding the apparent guilt of the accused.” 	State v.
Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 633. It applies “in exceptional
circumstances when guilt is so doubtful that it would shock the judicial conscience to
allow the conviction to stand.” State v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55,
946 P.2d 1066, overruled on other grounds by State v. Belanger, 2009-NMSC-025,
146 N.M. 357, 210 P.3d 783. 	Defendant argues that the statements amounted to
fundamental error at trial because Defendant was never able to cross-examine Mr.
Baca. We disagree.
{14} 	In this case, the admission of Ms. Velarde’s testimony was not fundamental

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error. 	We note that even if Ms. Velarde’s statement regarding the watch’s value
should have been excluded as hearsay, the value of the other items admitted into
evidence still totaled more than the $500 threshold amount. 	Because there was
sufficient additional evidence for a jury to find Defendant guilty, we find no
fundamental error. 	See State v. Rodriguez, 81 N.M. 503, 505, 469 P.2d 148, 150
(1970) (“If there is substantial evidence . . . to support the verdict of the jury, we will
not resort to fundamental error.”).
III. 	Sufficiency of the Evidence of the Value of Stolen Property
{15} 	Defendant argues that the evidence presented at trial was insufficient to result
in his conviction for fourth-degree receiving stolen property and for tampering with
evidence. Our review of a sufficiency of the evidence question involves a two-step
process. 	See State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994).
Initially, we view the evidence in the light most favorable to the verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the
verdict, and then we must “make a legal determination of whether the evidence
viewed in this manner could justify a finding by any rational trier of fact that each
element of the crime charged has been established beyond a reasonable doubt.” Id.
(internal quotation marks and citation omitted). The question is whether the district
court’s “decision is supported by substantial evidence, not whether the [district] court

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could have reached a different conclusion.” In re Ernesto M., Jr., 1996-NMCA-039,
¶ 15, 121 N.M. 562, 915 P.2d 318. “The reviewing court does not weigh the evidence
or substitute its judgment for that of the fact finder as long as there is sufficient
evidence to support the verdict.” 	State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M.
346, 950 P.2d 789, abrogated on other grounds by Kersey v. Hatch, 2010-NMSC-020,
148 N.M. 381, 237 P.3d 683.
{16} 	To convict Defendant of fourth-degree receiving stolen property, the State was
required to prove that: (1) the iPod, wireless internet card, Pittsburgh Steelers watch,
Jordan tennis shoes, and phone chargers had been stolen; (2) Defendant kept this
property; (3) at the time Defendant kept the property, he knew or believed it had been
stolen; (4) the property had a market value of over $500; and (5) this happened in New
Mexico on or about February 14, 2009. The jury was further instructed that market
value means the price at which the property could ordinarily be bought or sold at the
time of the alleged receipt of stolen goods. Defendant challenges only whether the
State sufficiently proved that the market value of the items possessed exceeded $500.
{17} 	We find no basis in the record to support Defendant’s argument that Ms.
Velarde only testified to the purchase price of the items, not their market value. Ms.
Velarde did, in reference to the tennis shoes and wireless internet card, indicate that
she knew the value of the items because she and her husband “bought them.” Ms.

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Velarde testified that the tennis shoes were purchased only a week and a half prior to
the burglary, and that the internet card was purchased from her husband’s workplace.
As to the other items, Ms. Velarde was questioned, without objection, as to the
“value” of the items. The relationship between the market value and purchase price
of these items was never disputed by Defendant or explored further with Ms. Velarde.
In the light most favorable to the verdict, Ms. Velarde’s testimony of the value of the
stolen items, particularly when coupled with photographic and physical exhibits of the
items entered into evidence at trial, was sufficient to allow the jury to conclude that
the market value of the items possessed by Defendant exceeded $500. 	It is well
settled that an owner of personal property may testify concerning the value of the
property and that such testimony is sufficient to support a jury’s determination of
value. State v. Dominguez, 91 N.M. 296, 299-300, 573 P.2d 230, 233-34 (Ct. App.
1977); State v. Zarafonetis, 81 N.M. 674, 677, 472 P.2d 388, 391 (Ct. App. 1970).
“The reason for this rule is that the owner necessarily knows something about the
quality, cost, and condition of his or her property and consequently knows
approximately what it is worth.” State v. Hughes, 108 N.M. 143, 146, 767 P.2d 382,
385 (Ct. App. 1988). Based on Ms. Velarde’s testimony valuing the stolen items and
exhibits depicting the items stolen, the jury could reasonably infer that the market
value of the stolen items exceeded $500. Because substantial evidence supports the

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jury’s determination that Defendant possessed property valued over $500, we affirm
Defendant’s conviction for fourth-degree receiving stolen property.
{18} 	Defendant also argues that because there was insufficient evidence to convict
Defendant of fourth-degree receiving stolen property, there is also insufficient
evidence to convict Defendant of tampering with evidence, another fourth-degree
felony. 	Because we have rejected Defendant’s argument holding that there was
sufficient evidence to support Defendant’s conviction for possession of stolen
property, we also reject Defendant’s identical arguments that there was insufficient
evidence of tampering with evidence.
IV. 	Cumulative Error
{19} 	Defendant argues that the cumulative effect of the various alleged errors
outlined above, including Ms. Velarde’s testimony regarding the value of the stolen
property and the court’s denial of his motions to continue and to reappoint counsel,
denied Defendant a fair trial. 	“The doctrine of cumulative error requires reversal
when a series of lesser improprieties throughout a trial are found, in aggregate, to be
so prejudicial that the defendant was deprived of the constitutional right to a fair trial.”
State v. Duffy, 1998-NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, modified on other
grounds by State v. Gallegos, 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828.
The cumulative error doctrine is strictly applied and may not be successfully invoked

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if “the record as a whole demonstrates that the defendant received a fair trial.” State
v. Trujillo, 2002-NMSC-005, ¶ 63, 131 N.M. 709, 42 P.3d 814 (internal quotation
marks and citation omitted). 	We recognize the doctrine of cumulative error in the
State of New Mexico; however, it has no application if no errors are committed and
if the defendant has received a fair trial. State v. Seaton, 86 N.M. 498, 501, 525 P.2d
858, 861 (1974); State v. Carr, 95 N.M. 755, 769, 626 P.2d 292, 306 (Ct. App. 1981),
overruled on other grounds as recognized by State v. Olguin, 120 N.M. 740, 906 P.2d
731. Because we have held that there was no error, we conclude that the cumulative
error doctrine does not apply. See State v. Aragon, 1999-NMCA-060, ¶ 19, 127 N.M.
393, 981 P.2d 1211 (holding that when there is no error, “there is no cumulative
error”).
CONCLUSION
{20} 	For the foregoing reasons, we affirm Defendant’s convictions.
{21} 	IT IS SO ORDERED.
TIMOTHY L. GARCIA, Judge
WE CONCUR:

CYNTHIA A. FRY, Judge

RODERICK T. KENNEDY, J udge

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