State v. Barber
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This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 31,958 5 JORDAN ANDREW BARBER, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF DOÃ A ANA COUNTY 8 Lisa C. Schultz, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jacqueline L. Cooper, Chief Public Defender 13 Karl Erich Martell, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 18 Defendant-Appellant Jordan Andrew Barber (Defendant) appeals from multiple 19 convictions for vehicle burglary, larceny, criminal damage to property, conspiracy, 1 and possession of burglary tools. We issued a notice of proposed summary 2 disposition, proposing to uphold the convictions. Defendant has filed a memorandum 3 in opposition. After due consideration, we remain unpersuaded. We therefore affirm. 4 Defendant has raised a single issue, challenging the exclusion of a recording of 5 a hearing at which one of the State s witnesses was sentenced. [DS 7] The defense 6 sought to present this evidence in order to clarify that the witness had received 7 leniency in exchange for his testimony against Defendant. However, as we observed 8 in the notice of proposed summary disposition, this information was conveyed to the 9 jury in the course of the witness s testimony at trial. On cross-examination the 10 witness specifically stated that the prosecutor had requested, and he had ultimately 11 received, an entirely suspended sentence in exchange for his testimony against 12 Defendant. [DS 6-7; MIO 2] Under the circumstances the recording would have 13 essentially constituted cumulative evidence, which the district court was well within 14 its discretion to exclude. See generally State v. Marquez, 1998-NMCA-010, ¶ 24, 124 15 N.M. 409, 951 P.2d 1070 ( [T]he trial court in its discretion may properly exclude 16 cumulative evidence. ). 17 In his memorandum in opposition Defendant takes issue with our 18 characterization of the recording as cumulative evidence, on the theory that the jury 19 had previously heard conflicting information relative to the witness s sentence. [MIO 20 3] We acknowledge that the prosecutor s questioning on the subject was less than 2 1 ideally clear. [MIO 1-2] However, the witness unequivocally explained on cross2 examination that he had received an entirely suspended sentence in exchange for his 3 testimony against Defendant. [MIO 2] We perceive no basis for Defendant s claim 4 of lingering ambiguity. [MIO 3-4] Insofar as the witness clarified the matter, we 5 reject Defendant s suggestion that the jury had been presented with two opposing 6 stories, such that resort to the recording was necessary. [MIO 3] 7 Accordingly, for the reasons stated, we affirm. 8 IT IS SO ORDERED. 9 10 _______________________________ MICHAEL E. VIGIL, Judge 11 WE CONCUR: 12 _________________________________ 13 CELIA FOY CASTILLO, Chief Judge 14 _________________________________ 15 LINDA M. VANZI, Judge 3
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