State v. Chavez

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Supreme Court.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: October 2, 2025

No. S-1-SC-40266

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

DANIEL ROBERT CHAVEZ,

Defendant-Appellant.

CAPITAL APPEAL
Jeffrey A. Shannon, District Judge

Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Appellate Defender
Thomas J. Lewis, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Raúl Torrez, Attorney General
Walter Hart, Assistant Solicitor General
Albuquerque, NM

for Appellee

DECISION

ZAMORA, Justice.

I. INTRODUCTION

{1} Defendant, Daniel Robert Chavez, appeals his conviction for first-degree willful
and deliberate murder, contrary to NMSA 1978, Section 30-2-1(A)(1) (1994), arising
from the stabbing of Victim, Joshua Trujillo, which resulted in his death. Defendant
argues that this Court must reverse his conviction because (1) there was insufficient
evidence to support the jury’s finding of first-degree willful and deliberate murder, (2) the
district court committed fundamental error in failing to instruct the jury on self-defense,
(3) the district court erred in denying Defendant’s motion to dismiss alleging a Brady
violation, and (4) the State engaged in prosecutorial misconduct requiring reversal. We
affirm and exercise our discretion to decide this appeal by nonprecedential decision.
See Rule 12-405(B)(1) NMRA.

II. BACKGROUND

{2} This case arises from the stabbing death of Victim. The following narrative of
events is supported by the evidence presented at trial, primarily surveillance footage
and testimony. The stabbing occurred while Victim and his girlfriend, Tiffany Miera, were
at the Speedway convenience store in El Prado, New Mexico. Defendant, Defendant’s
girlfriend Katrina Madrid, and Katrina’s sister Floralea Trujillo entered the store at the
same time as Victim and Tiffany. After entering the store, Victim and Tiffany waited in
line at the cash register, when Floralea approached the two, turned to address Tiffany,
and threw a bag of chips that hit Victim. Victim did not meet Floralea’s conduct with a
violent response, but instead took Tiffany under his arm and the two continued to the
register to complete their transaction. While Victim faced the register, Defendant
continued to stand near the end of the register line and angrily pointed and gestured
towards the back of Victim’s head before he rejoined Floralea and Katrina near the back
of the store.

{3} While Victim and Tiffany completed their transaction, Defendant remained near
the back of the store, and began to wield a knife. Defendant not only had the knife in his
hand, but he held the handle firmly within his fist with the blade pointing downwards.
Knife in hand, Defendant repeatedly attempted to move towards the front of the store,
but Katrina physically tried to stop him from reaching the front door and approaching
Victim. After Victim completed his transaction, he and Tiffany walked toward the exit.
Tiffany exited the store just before Victim, and as Victim neared the exit, he appeared to
see Defendant moving down the aisle in his direction. Victim paused at the doorway and
gestured towards Defendant by halfway lifting his arm in his direction with his hand
down turned as he was carrying his recent purchase. Tiffany continued walking towards
her vehicle in the parking lot.1 Victim then exited the store.

1Defendant asserts that Victim and Tiffany waited for Defendant “for a few minutes” outside of the store
and that Defendant only armed himself with the knife after the fight had ensued. Based on our review of
the portions of the record cited by Defendant, the evidence does not support and, in fact, contradicts
Defendant’s characterization of the evidence. We will not scour the record to determine if there is
evidence that supports Defendant’s version of the facts. See Heeter v. Heeter, 1992-NMCA-032, ¶ 15,
113 N.M. 691, 831 P.2d 990 (“This [C]ourt will not search the record to find evidence to support an
appellant’s claims.”). We remind counsel of their responsibility to cite the record to support their view of
the evidence and if there is no evidence to support their view, be aware that mischaracterization may
amount to an ethical violation. See Rule 16-303(A)(1) NMRA (requiring that “a lawyer shall not knowingly
. . . make a false statement of fact or law to a tribunal”); see, e.g., In re Dixon, 2019-NMSC-006, 435 P.3d
80.
{4} Katrina continued her attempts to stop Defendant from reaching Victim, until
Defendant pushed past her and exited the store. Victim, who had been walking towards
his vehicle, turned around to face Defendant. As Defendant approached Victim, with
knife in hand, Victim punched Defendant in the face. At the same time, Tiffany turned
from the vehicle and ran towards the store’s entrance. While Defendant and Victim
struggled, Tiffany struck Katrina over the head with a liquor bottle, and the two women
began to fight. Defendant and Victim also continued fighting, with Defendant pursuing
Victim around the vehicle and back again to the front of the store.

{5} Defendant continued to pursue and stab Victim until he successfully retreated to
the vehicle, where Tiffany was waiting for him. In total, Defendant stabbed Victim
twenty-eight times. Defendant continued to harass Victim and Tiffany by pounding on
the passenger side window as they entered the vehicle and by taunting them with arms
raised as they drove from the scene. Defendant then discarded the knife, throwing it
somewhere outside of the video’s frame, and walked away. Defendant left the scene
and later arrived at the hospital to seek treatment for his and Katrina’s injuries. While at
the hospital, Defendant was mirandized and Officer Taylor Gwinn conducted a recorded
interview. In that video, Defendant denied that he was involved in a stabbing.

{6} Defendant was later convicted of first-degree willful and deliberate murder and
tampering with evidence and was sentenced to life imprisonment plus nine years.
Defendant appeals his conviction for first-degree murder directly to this Court. See Rule
12-102(A)(1) NMRA (requiring that “appeals from the district courts in which a sentence
of . . . life imprisonment has been imposed” be taken to the Supreme Court).

III. DISCUSSION

A. The Evidence Was Sufficient to Convict Defendant of First-Degree
Deliberate Intent Murder

{7} Defendant argues the State did not present sufficient evidence to establish
deliberate intent as required to convict him of first-degree willful and deliberate murder.
The State responds that the evidence submitted to the jury “amply supported” the jury’s
finding that Defendant acted with deliberate intent in killing Victim based on evidence of
his conduct before, during, and after the stabbing. We agree with the State.

1. Standard of review

{8} The sufficiency of the evidence is measured against the jury instructions, which
“become the law of the case.” State v. Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d
517 (internal quotation marks and citation omitted). Evidence is sufficient when
substantial evidence “‘exists to support a verdict of guilt beyond a reasonable doubt with
respect to every element essential to a conviction.’” State v. Duran, 2006-NMSC-035, ¶
5, 140 N.M. 94, 140 P.3d 515 (quoting State v. Sutphin, 1988-NMSC-031, ¶ 21, 107
N.M. 126, 753 P.2d 1314). “We resolve all disputed facts in favor of the State, indulge
all reasonable inferences in support of the verdict, and disregard all evidence and
inferences to the contrary.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971
P.2d 829.

2. The State presented sufficient evidence of deliberate intent

{9} Defendant was charged with first-degree murder, which criminalizes “the killing of
one human being by another . . . by any kind of willful, deliberate and premeditated
killing.” Section 30-2-1(A)(1). To convict Defendant, the State was required to prove that
he killed Victim and that “[t]he killing was with the deliberate intention to take away the
life of [Victim].” See UJI 14-201 NMRA. Deliberate intent “means arrived at or
determined upon as a result of careful thought and the weighing of the consideration for
and against the proposed course of action. A calculated judgment and decision may be
arrived at in a short period of time.” Id. However, “A mere unconsidered and rash
impulse, even though it includes an intent to kill, is not a deliberate intention to kill.” Id.
For a killing to be deliberate, a defendant “must weigh and consider the question of
killing and his reasons for and against such a choice.” Id.

{10} Taken together, the evidence showed that Defendant’s conduct prior to, during,
and after the stabbing was sufficient to allow a reasonable juror to determine Defendant
had the deliberate intent to kill Victim. Prior to the stabbing, Defendant armed himself
with a knife while at the back of the store, waited for Victim to conclude his transaction,
and fought back against Katrina’s multiple attempts to stop Defendant from reaching
Victim. See State v. Flores, 2010-NMSC-002, ¶ 22, 147 N.M. 542, 226 P.3d 641,
overruled on other grounds by State v. Martinez, 2021-NMSC-002, ¶ 87, 478 P.3d 880
(recognizing a reasonable jury can consider a defendant wielding an object “for no other
discernible purpose than to use it as a weapon” in finding deliberate intent); cf. State v.
Largo, 2012-NMSC-015, ¶ 33, 278 P.3d 532 (holding a reasonable jury could conclude
the defendant deliberated prior to shooting and killing the victim because the victim
physically and verbally resisted).

{11} During the stabbing, surveillance footage and blood spatter evidence
demonstrate Defendant engaged Victim in a prolonged struggle where he stabbed
Victim twenty-eight times. See Duran, 2006-NMSC-035, ¶ 8 (determining a reasonable
jury could find Defendant had the deliberate intent to kill based on “the physical
evidence of a prolonged struggle and multiple stab wounds”).

{12} Finally, after the stabbing, Defendant harassed Victim and Tiffany and showed
no signs of remorse, disposed of the evidence by throwing the knife, fled the scene, and
attempted to mislead officers. See State v. Guerra, 2012-NMSC-027, ¶ 29, 284 P.3d
1076 (allowing the jury to infer deliberate intent because the defendant showed “no
remorse after killing the victim”); see also Flores, 2010-NMSC-002, ¶ 22 (holding
substantial evidence of deliberation could include disposing of evidence, fleeing the
scene, and attempting to “deceive and evade the authorities”); see also State v. Smith,
2016-NMSC-007, ¶ 20, 367 P.3d 420 (recognizing deliberate intent may be inferred
when a defendant flees the scene and attempts to deceive authorities).
{13} In light of the evidence presented in this case, we hold that substantial evidence
supported the jury’s finding that Defendant was guilty of first-degree willful and
deliberate murder.

B. The District Court’s Failure to Instruct the Jury on Self-Defense or Defense
of Another Did Not Result in Fundamental Error

{14} Defendant argues the district court erred by not instructing the jury on self-
defense. Defendant also appears to make a secondary argument that the district court
erred in failing to give a “defense of another” instruction based on his fear for Katrina’s
safety. The State argues that “no sufficient and substantial evidence at trial supported
giving such instructions to the jury.” We agree.

1. Standard of review

{15} Defendant did not request jury instructions on self-defense or defense of another,
so we review his argument for fundamental error. We first determine “whether an error
occurred” and, if so, “whether the error was fundamental.” State v. Silva, 2008-NMSC-
051, ¶ 11, 144 N.M. 815, 192 P.3d 1192. “Fundamental error only applies in exceptional
circumstances when guilt is so doubtful that it would shock the judicial conscience to
allow the conviction to stand.” State v. Cunningham, 2000-NMSC-009, ¶ 13, 128 N.M.
711, 998 P.2d 176 (internal quotation marks and citation omitted). Here, we conclude
that the lack of a self-defense or defense of another instruction was neither error nor
fundamental error.

2. There was insufficient evidence to instruct the jury on self-defense or
defense of another

{16} A defendant is entitled to a self-defense instruction when there is sufficient
evidence “to allow reasonable minds to differ” as to each of the following elements: (1)
“the defendant was put in fear by an apparent danger of immediate death or great bodily
harm,” (2) “the killing resulted from that fear,” and (3) “the defendant acted as a
reasonable person would act under those circumstances.” State v. Lopez, 2000-NMSC-
003, ¶ 23, 128 N.M. 410, 993 P.2d 727 (internal quotation marks and citation omitted).
The first two elements “are subjective in that they focus on the perception of the
defendant at the time of the incident.” State v. Coffin, 1999-NMSC-038, ¶ 15, 128 N.M.
192, 991 P.2d 477. “[T]he third requirement is objective in that it focuses on the
hypothetical behavior of a reasonable person acting under the same circumstances as
the defendant.” Id.

{17} Here, the first element is dispositive and, therefore, we need not address whether
Defendant presented sufficient evidence to meet the remaining elements. Defendant
has failed to put forth evidence to support a finding that he had the subjective belief that
there was a “danger of immediate death or great bodily harm” presented against himself
or Katrina. Lopez, 2000-NMSC-003, ¶ 23; see State v. Sandoval, 2011-NMSC-022, ¶
16, 150 N.M. 224, 258 P.3d 1016 (“‘[C]ase law and commentary treat ‘defense of
another’ and ‘self-defense’ as virtually identical for purposes of analysis.’” (alteration in
original) (quoting State v. Gallegos, 2001-NMCA-021, ¶ 7, 130 N.M. 221, 22 P.3d 689)).

{18} To support his position that there was sufficient evidence to support the first
element, Defendant points to his statements made to police and asserts only that Victim
was (1) larger than Defendant, (2) taunting Defendant, and (3) exchanging
confrontational looks. New Mexico courts have recognized that size disparity alone is
insufficient to satisfy the subjective requirement of threat of death or great bodily harm.
See State v. Duarte, 1996-NMCA-038, ¶ 10, 121 N.M. 553, 915 P.2d 309. Generally, a
defendant may consider other factors in assessing the “quantum of risk” posed against
the defendant. See 2 Wayne R. Lafave, Substantive Criminal Law § 10.4(b), at 200 (3d
ed. 2018). However, Defendant also fails to point to any factors or evidence that would
demonstrate his subjective belief that the unarmed Victim was capable of inflicting death
or great bodily harm.

{19} Similarly, there is no indication that Defendant’s perception of Victim’s “taunts” or
“confrontational looks” created the appearance of anything beyond the threat of a
simple battery. Defendant points to no evidence that he believed Victim possessed any
weapon or that Victim actually used or attempted to use a weapon. The fear of a simple
battery, such as a punch to the face, “is not the type of force” that may result in death or
great bodily harm and not a situation in which deadly force may be used. State v.
Lucero, 2010-NMSC-011, ¶ 15, 147 N.M. 747, 282 P.3d 1167. At trial, the jury saw
video evidence showing that Defendant was near the back of the store and nowhere
near Victim, who was standing at the store’s register, when he armed himself with a
knife. While Victim did punch Defendant in the face, it was only after Defendant had
armed himself with a knife and pursued an unarmed Victim outside of the store.
Defendant points to nothing in the record that supports his subjective belief that he
perceived a threat of danger of death or great bodily harm and, therefore, fails to show
sufficient evidence that a reasonable jury could find that he acted in self-defense.
Accordingly, Defendant fails to show that he was entitled to a self-defense or defense of
another jury instruction. It follows that the lack of a self-defense or defense of another
instruction was not fundamental error.

C. Defendant Failed to Meet His Burden to Establish a Brady Violation

{20} Defendant next argues the district court erred by denying his motion to dismiss
for a purported Brady violation, based on Officer Gwinn’s failure to disclose and produce
notes related to her investigation of Victim’s death. The district court denied the motion
after concluding that the failure to disclose Officer Gwinn’s notes was not a Brady
violation, a determination that we review for abuse of discretion. State v. Turrietta, 2013-
NMSC-036, ¶ 35, 308 P.3d 964 (citing Case v. Hatch, 2008-NMSC-024, ¶ 47, 144 N.M.
20, 183 P.3d 905). Under this standard, we affirm the district court “unless its ruling
[was] arbitrary, capricious, or beyond reason.” Id. (alteration in original).

{21} “[T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good or bath faith of the prosecution.” Brady v.
Maryland, 373 U.S. 83, 87 (1963). To establish a Brady violation, Defendant must show
“(1) the prosecution suppressed the evidence; (2) the evidence was favorable to the
accused; and (3) the evidence was material to the defense.” Hatch, 2008-NMSC-024, ¶
44 (internal quotation marks and citation omitted). The State concedes Officer Gwinn
failed to disclose her investigative notes, but argues “the [d]istrict [c]ourt correctly
concluded there was no Brady violation because Defendant failed to show (1) that
anything in the missing notes was favorable to him as the accused; and (2) that
anything in the missing notes was material to the defense.”

{22} It is uncontested that Officer Gwinn’s notes were lost and not provided to
Defendant, so the first Brady prong was met. However, Defendant fails to establish that
the undisclosed evidence was favorable and that it was material. Defendant argues that,
without Officer Gwinn’s notes, he was unable to develop his theory of self-defense
before trial.2 Specifically, Defendant asserts the notes would have alerted him to a
discrepancy between Officer Gwinn’s notes and her police report. The police report
stated that Defendant told Officer Gwinn that he did not see Victim with a BB gun before
the stabbing. On cross-examination however, Officer Gwinn admitted that Katrina had
made the statement. Defendant does not explain, and we are unable to discern, how
Katrina’s statement to Officer Gwinn that she did not see Victim with a BB gun was
“favorable” to Defendant’s self-defense argument. “Evidence is ‘favorable to an
accused’ if its disclosure and effective use ‘may make the difference between conviction
and acquittal’ regardless of whether such evidence is impeachment evidence or
exculpatory evidence.” State v. Worley, 2020-NMSC-021, ¶ 23, 476 P.3d 1212 (quoting
United States v. Bagley, 473 U.S. 667, 676 (1985)). Here, regardless of whether the
statement came from Defendant or Katrina, a witness statement that Victim was not
seen carrying a BB gun cuts against Defendant’s theory of self-defense, which would
require that Defendant perceived an apparent threat of death or great bodily harm. See
Lopez, 2000-NMSC-003, ¶ 23.

{23} Defendant also fails to explain why the evidence was material. Suppressed
evidence is material only if it “‘could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.’” Worley, 2020-NMSC-021, ¶
28 (quoting Stickler v. Greene, 527 U.S. 263, 290 (1999)). This prong asks us to
determine “whether suppression resulted in prejudice.” Id. ¶ 17. To make this
determination, we “view the suppressed evidence’s significance in relation to the record
as a whole.” Id. ¶ 28 (internal quotation marks and citation omitted). Viewed in this way,
we cannot conclude that the statement was material. We do not see how the
undisclosed notes, which we can only presume correctly recognized that Katrina stated
she did not see Victim with a BB gun, undermines the jury’s finding of deliberate intent
or strengthens Defendant’s theory of self-defense. Because Defendant has failed to
demonstrate the suppressed evidence was either favorable or material, we hold the
district court did not abuse its discretion in ruling that no Brady violation occurred.

2We decline to reach Defendant’s secondary argument asking this Court to speculate as to the
favorability and materiality of unidentified evidence that may or may not have been contained in Officer
Gwinn’s notes. See Hatch, 2008-NMSC-024, ¶ 55 (“For Brady purposes, exculpatory evidence cannot be
purely speculative.”).
D. The State Did Not Commit Prosecutorial Misconduct Amounting to
Fundamental Error

{24} Defendant argues the State prosecutor, Cosme Ripol, engaged in prosecutorial
misconduct through the use of “inflammatory leading questions,” “inflammatory
language,” and the “excessive use of bloody photos to provoke an emotional reaction.”
“Defendant made no claim of prosecutorial misconduct at trial,” so we review for
fundamental error. State v. Carrillo, 2017-NMSC-023, ¶ 51, 399 P.3d 367. Fundamental
error occurs when prosecutorial misconduct is “‘so egregious and had such a pervasive
and prejudicial effect on the jury’s verdict that the defendant was deprived of a fair trial.’”
Id. ¶ 50 (quoting State v. Allen, 2000-NMSC-002, ¶ 95, 128 N.M. 482, 994 P.2d 728).
“[W]e must be convinced that the prosecutor’s conduct created a reasonable probability
that the error was a significant factor in the jury’s deliberations in relation to the rest of
the evidence before them.” State v. Sosa, 2009-NMSC-056, ¶ 35, 147 N.M. 351, 223
P.3d 348 (internal quotation marks and citation omitted). To aid in this determination,
three factors “carry great influence in our deliberations: (1) whether the statement
invades some distinct constitutional protection; (2) whether the statement is isolated and
brief, or repeated and pervasive; and (3) whether the statement is invited by the
defense.” Id. ¶ 26. We evaluate any challenged statements “objectively in the context of
the prosecutor’s broader argument and the trial as a whole.” Id. As our review is for
fundamental error, we will only upset a jury’s verdict “when guilt is so doubtful as to
shock the conscience, or . . . when there has been an error in the process implicating
the fundamental integrity of the judicial process.” Id. ¶ 35.

{25} In arguing Ripol’s conduct amounted to fundamental error, Defendant relies on
this Court’s recent case, State v. Lensegrav, which was filed after the submission of his
Brief in Chief. See 2025-NMSC-016, 572 P.3d 924. In Lensegrav, we held that the
same prosecutor involved in this case, Ripol, engaged in “severe and pervasive
prosecutorial misconduct.” Id. ¶ 1. In that case, Ripol “expose[d] the jury to incriminating
allegations from a non-testifying [party], repeatedly accuse[d] a defendant of witchcraft,
and relie[d] on inflammatory and inadmissible evidence throughout the case.” Id. This
Court was bound to review the defendant’s claims for fundamental error because there
were no objections below. Id. ¶ 27. The Court reasoned that reversal was necessary
because “at every stage of the trial—from opening statement through rebuttal
argument—the prosecution grounded its case in inadmissible evidence.” Id. ¶ 29. We
agree with Defendant’s concession that the conduct in this case does “not sink to the
extremes seen in Lensegrav.” We also hold that Ripol’s conduct did not amount to
fundamental error.

1. Inflammatory leading questions

{26} Defendant first argues that Ripol “repeatedly inserted leading and inflammatory
language into his direct examination of witnesses.” However, for each of the three
questions challenged on appeal, Defendant acknowledges that each was met with an
objection by defense counsel, challenging Ripol’s use of leading questions, and a
curative instruction from the district court instructing the jury to disregard.3 “[A] trial court
can correct any impropriety by striking statements and offering curative instructions.”
Sosa, 2009-NMSC-056, ¶ 25. Defendant does not explain or argue why the district
court’s curative instruction was insufficient to address any prejudice that may have
resulted from the State’s use of leading questions. “Only in the most exceptional
circumstances should we, with limited perspective of a written record, determine that all
the safeguards at the trial level have failed.” Id. Without such an argument, we see no
fundamental error.

2. Inflammatory language

{27} Defendant next challenges Ripol’s use of “inflammatory language” during the
opening statement. Specifically, Defendant challenges the references to Defendant as:
(1) “pitilessly, stabbing” Victim, (2) “hunting down” Victim, (3) a “butcher,” (4) a “killer,”
(5) a “macho man,” (6) “prowling, scoping, maddog[ging]” Victim, (7) wearing a “wife
beater T-shirt,” (8) slaughtering Victim “mercilessly, like a pig,” and (9) a “beast.” The
State defends these characterizations, arguing the “Prosecutor’s rhetoric, while
emphatic, colorful and graphic, was factually accurate, was based on the evidence
expected at trial, was relevant to the material issues of premeditation, deliberation, and
Defendant’s expected claim of self-defense, and was ultimately within the bounds of
proper exposition of the evidence.”

{28} Again, because the language challenged on appeal was not objected to below,
we are bound to review Ripol’s conduct for fundamental error. See State v. Seaton,
1974-NMSC-067, ¶ 28, 86 N.M. 498, 525 P.2d 858 (“If [the defendant] thought he was
in any way improperly prejudiced or the jury inflamed thereby, it was his duty to object
and give the trial court an opportunity to pass upon the propriety or impropriety of the
remark.”). “An opening statement is intended to serve as a preview of the evidence to
be admitted by one or both of the parties.” State v. Gilbert, 1982-NMSC-137, ¶ 14, 99
N.M. 316, 657 P.2d 1165. “It is within the range of legitimate argument for counsel to
discuss all inferences which may be drawn from the evidence and to impress them upon
the jury.” State v. Graves, 1915-NMSC-076, ¶ 29, 21 N.M. 556, 157 P. 160 (internal
quotation marks and citation omitted). With the exception of Ripol’s language referring
to Defendant as a “macho man,” and butchering Victim as if he was “a pig,” the
challenged statements are supported by the evidence produced in trial. We, therefore,
do not consider them further in our analysis of this issue.

{29} As for the two instances that were not supported by the evidence, we regard this
language as excessive narrative and unprofessional, and we admonish Ripol for
engaging in conduct that is potentially “prejudicial to the administration of justice.” Rule
16-804(D) NMRA. While a prosecutor may “‘strike hard blows, he is not at liberty to
strike foul ones.’” State v. Torres, 2012-NMSC-016, ¶ 17, 279 P.3d 740 (quoting Berger
v. United States, 295 U.S. 78, 88 (1935)). The use of this language, however, does not

3We clarify that our review of these questions is for fundamental error as the objections below were not
made on the grounds of prosecutorial misconduct. See Carrillo, 2017-NMSC-023, ¶ 51 (holding that the
defendant failed to preserve a challenge to prosecutorial misconduct by objecting on other grounds).
require reversal in this case because its use was isolated and brief within the context of
the larger opening statement to the jury and the evidence presented at trial. Sosa, 2009-
NMSC-056, ¶ 26. Due to the amount of evidence presented at trial that supports the
inference of Defendant’s guilt, “there is no reasonable probability that the error was a
significant factor in the jury’s deliberations in relation to the rest of the evidence before
them.” State v. Clark, 1989-NMSC-010, ¶ 53, 108 N.M. 288, 772 P.2d 322. Therefore,
we are unpersuaded that the State’s language affected the jury’s verdict and do not find
fundamental error.4

3. Excessive use of bloody photos to provoke an emotional response

{30} Defendant last argues Ripol introduced into evidence an excessive number of
photos. Specifically, Defendant challenges the introduction of sixteen photos of blood
spatter on the pavement, thirteen photos of blood spatter on Tiffany’s car, and four
photos of blood on Tiffany. Defendant argues that the photos were not offered as
“probative of any fact beyond that [Victim] had been stabbed” and that they were offered
solely “to play on the emotions of the jury.”

{31} Defendant concedes that there was no objection to the photos’ admission into
evidence or to how Ripol used the photos during trial. In fact, Defendant stipulated to
the photos’ admission at trial. “The doctrine of fundamental error cannot be invoked to
remedy the defendant’s own invited mistakes.” State v. Campos, 1996-NMSC-043, ¶
47, 122 N.M. 148, 921 P.2d 1266, abrogated by State v. Groves, 2021-NMSC-003, 478
P.3d 915; see also, e.g., State v. Ortega, 2014-NMSC-017, ¶ 34, 327 P.3d 1076 (“New
Mexico courts ‘have consistently followed the ethical maxim that no party can profit by
his own wrong.’” (quoting Proper v. Mowry, 1977-NMCA-080, ¶ 69, 90 N.M. 710, 568
P.2d 236)). Because Defendant invited the alleged error by stipulating to the admission
of the now challenged photos, their use did not result in fundamental error.

IV. CONCLUSION

{32} For the reasons stated above, we affirm Defendant’s convictions.

{33} IT IS SO ORDERED.

BRIANA H. ZAMORA, Justice

WE CONCUR:

DAVID K. THOMSON, Chief Justice

4Defendant also seems to present a “cumulative error” argument, but he points only to the cumulative
effect of the “inflammatory language” used by Ripol in his opening statement. Our determination that only
two of the challenged statements were improper and that they did not affect the jury’s verdict forecloses
this argument. See State v. Roybal, 2002-NMSC-027, ¶ 33, 132 N.M. 657, 54 P.3d 61 (“The 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.”).
MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice

JULIE J. VARGAS, Justice