N.M. R. Crim. P. Dist. Ct. 5-113
Committee commentary. - Paragraph A of this rule was derived from Rule 1-061. Application of this rule, where constitutional error is alleged, is governed by federal constitutional law. In Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, rehearing denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967), the court said that "the court must be able to declare a belief that [the error] was harmless beyond a reasonable doubt." In Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963), the supreme court said that: "the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction".
In State v. Anaya, 81 N.M. 52, 462 P.2d 637 (1969), the Chapman and Fahy tests were followed. The evidence in State v. Anaya pointed overwhelmingly to the defendant's guilt. There was "no reasonable possibility that the question and answer concerning a subsequent offense contributed to the defendant's conviction." See also, State v. Pope, 78 N.M. 282, 430 P.2d 779 (1967). In State v. Mann, 87 N.M. 427, 535 P.2d 70 (Ct. App. 1975), the court held that infringement of a right to confrontation could never be treated as harmless error.
This rule purports to cover error in the admission or exclusion of evidence. However, Paragraph A of Rule 11-103 also deals with error in rulings on evidence. Under Rule 5-613, the Rules of Evidence, insofar "as they are not in conflict with these rules", apply to and govern the trial of criminal cases. The commentaries to the Rules of Evidence indicate that Rule 11-103 does not purport to change the harmless error rule, citing, inter alia, Rule 1-061 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, rehearing denied, 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241 (1967). See 56 F.R.D. 183, 195 (1973).
For defects, errors and amendment of information and indictment, see Rule 5-204 NMRA. For effect of errors and irregularities in depositions, see Rule 5-503 NMRA. Compiler's notes. - Paragraph A of this rule is similar to Rule 52(a) of the Federal Rules of Criminal Procedure. Paragraph B of this rule is similar to Rule 36 of the Federal Rules of Criminal Procedure. Hearsay statements made in a telephone call between witnesses. - Where the prosecutor distributed a transcript to the jury and played the recording of a telephone call placed at the county jail by the witness to a friend of the defendant; the telephone call contained statements by the friend incriminating the defendant in the murder of the victim and purported to recount the defendant's confession to the friend; there was sufficient independent evidence to convict the defendant; the state placed marked emphasis on the statements of the friend; and the jury took the friend's statements into consideration, the admission of the friend's hearsay statements was not harmless. State v. Macias, 2009-NMSC-028, 146 N.M. 378, 210 P.3d 804. Constitutional and non-constitutional harmless error. - Where the defendant has established a violation of the rights guaranteed by the United States Constitution or the New Mexico Constitution, a reviewing court should only conclude that an error is harmless when there is no reasonable possibility it affected the verdict. In contrast, where a defendant has established a violation of statutory law or court rules, a reviewing court should only conclude that a non-constitutional error is harmless when there is no reasonable probability the error affected the verdict. State v. Barr, 2009-NMSC-024, 146 N.M. 301, 210 P.3d 198. Factors to be considered in analysis of constitutional and non-constitutional harmless error. - The factors a court should consider in determining whether there is a reasonable possibility or reasonable probability that an error, constitutional or non-constitutional, contributed to a verdict are whether there is: (1) substantial evidence to support the conviction without reference to the improperly admitted evidence; (2) such a disproportionate volume of permissible evidence that, in comparison, the amount of improper evidence will appear miniscule; and (3) no substantial conflicting evidence to discredit the state's testimony. State v. Barr, 2009-NMSC-024, 146 N.M. 301, 210 P.3d 198. No non-constitutional harmless error. - Where the trial court improperly admitted a videotaped statement of a witness in the defendant's trial; the defendant's confession provided strong evidence against the defendant and was corroborated by the witness's testimony and the physical evidence; the improperly admitted evidence contained mostly irrelevant speculation which had no direct to the murder of the victim; and even though the defendant presented substantial evidence to challenge the extraneous discussion in the videotaped statement through witnesses who testified to the peaceful character of the defendant, there was no reasonable probability that the admission of the videotaped statement contributed to the defendant's conviction and the admission of the videotaped statement was harmless error. State v. Barr, 2009-NMSC-024, 146 N.M. 301, 210 P.3d 198. Admission of testimony not error if there was no reasonable probability that the testimony affected the verdict. - In a trial for criminal sexual contact of a minor, where qualified expert in child sexual abuse testified regarding the propriety of a parent applying ointment to the genital area of a nine-year-old child, the trial court did not abuse its discretion in admitting the evidence, because even if the admission of the expert's testimony was error, the error was harmless because defendant was only convicted of an incident that did not involve ointment or the propriety of defendant applying ointment to the genital area of his nine-year-old daughter; therefore even if the admission of the expert's testimony was error, there was not a reasonable probability that the error affected the verdict. State v. Bailey, 2015-NMCA-102, cert. granted, 2015-NMCERT-009. Prosecutor's reference in opening statement to the defendant's refusal to submit to a polygraph test was an impermissible comment on silence and the error was not harmless beyond a reasonable doubt where the defendant's credibility was crucial since he testified at trial and denial of the charges was his only defense. State v. Gutierrez, 2007-NMSC-033, 142 N.M. 1, 162 P.3d 156. Failure to adhere to court's pretrial ruling was not harmless and was sufficient grounds to support a mistrial. - Where defendant was charged with multiple crimes following a two-vehicle collision, including homicide by vehicle, great bodily harm by vehicle, driving under the influence of intoxicating liquor or drugs, and reckless driving, and where, prior to trial, the district court judge specifically excluded by motion in limine hearsay testimony that defendant had confessed to another officer about being behind the wheel at the time of the accident, and where, at trial, the officer failed to adhere to the court's admonishment, the district court abused its discretion in denying defendant's motion for a mistrial following the improper reference by the officer, because the improper testimony went to the crux of the defense that defendant was not the driver of the vehicle at the time of the accident, the improper testimony could not be cured by the district court's instruction to the jury to disregard the prejudicial testimony about the purported confession, and the purported confession error was not harmless. State v. Hernandez, 2017-NMCA-020, cert. denied. There are two standards for determining "harmless error": (1) whether the issue was raised in the trial court and (2) whether the relief sought would be beneficial to defendant. State v. Zamora, 1978-NMCA-017, 91 N.M. 470, 575 P.2d 1355, cert. denied, 91 N.M. 491, 576 P.2d 297. Error, to warrant reversal, must be prejudicial. State v. Williams, 1966-NMSC-145,76 N.M. 578, 417 P.2d 62 (decided under former law). Where testimony of officers, fingerprint evidence and defendant's admission from the witness stand left no reasonable possibility that evidence improperly admitted, and then stricken by the trial court, contributed to the conviction, the improperly admitted evidence was harmless error. State v. Thurman, 1972-NMSC-040, 84 N.M. 5, 498 P.2d 697. It is not the function of an appellate court to correct errors which have not affected the ultimate decision of the trial court. Defendant cannot be heard to complain of error which had not prejudiced him. State v. Holland, 1967-NMSC-186, 78 N.M. 324, 431 P.2d 57 (decided under former law). A party cannot complain of errors committed by the trial court which under no view of the case could be prejudicial to such party. State v. Darden, 1974-NMCA-032, 86 N.M. 198, 521 P.2d 1039. Error, to be reversible, must be prejudicial. State v. Wright, 1972-NMCA-073, 84 N.M. 3, 498 P.2d 695; State v. Baca, 1969-NMCA-070, 80 N.M. 488, 458 P.2d 92; State v. Wesson, 1972-NMCA-013, 83 N.M. 480, 493 P.2d 965. Violation of defendant's constitutional rights is never harmless. State v. Barela, 1974-NMCA-016, 86 N.M. 104, 519 P.2d 1185. Infringement of right of confrontation cannot be harmless error. - Unless there has been a waiver of the right of confrontation, or it has been shown that the witness is unavailable after due diligence has been used by the state to attempt to produce him at trial, admission of a witness' prior recorded testimony violates a defendant's right of confrontation. Infringement of that right cannot be harmless error. It is a right that is so basic to a fair trial that its infraction can never be treated as harmless error. State v. Mann, 1975-NMCA-045, 87 N.M. 427, 535 P.2d 70. Two-way video testimony violated defendant's confrontation rights and was not harmless error. - In defendant's first-degree murder trial, where a police forensic scientist, living outside of New Mexico, testified via Skype, there was nothing in the record to demonstrate that the use of two-way video was necessary to further an important public policy, where the district court did not conduct an evidentiary hearing or enter any findings on the issue; the admission of remote testimony violated defendant's sixth amendment right to confrontation. Moreover, the constitutional error was not harmless because there was no reasonable probability that the testimony of the absent forensic analyst did not influence the verdict, where the expert witness was the only analyst who had actually tested the DNA samples, and she testified to the results of the measurements she performed, and the DNA profiles were offered as the sole evidence that implicated defendant in the crime. State v. Thomas, 2016-NMSC-024. When clear denial of statutorily created procedural right has been established, the state has the burden of showing beyond a reasonable doubt that the error was harmless. State v. Spearman, 1972-NMCA-150, 84 N.M. 366, 503 P.2d 649. Doctrine of fundamental error is to be applied sparingly and is not to be used to excuse failure to make proper objection in the trial court. State v. Browder, 1971-NMCA-150, 83 N.M. 238, 490 P.2d 680 (decided under former law). The doctrine of fundamental error is resorted to in criminal cases only if the innocence of the defendant appears indisputable, or if the question of his guilt is so doubtful that it would shock the conscience to permit his conviction to stand. State v. Aguirre, 1972-NMSC-081, 84 N.M. 376, 503 P.2d 1154. The doctrine of fundamental error is applicable only if the innocence of the defendant appears indisputable or if the question of his guilt is so doubtful that it would shock the conscience to permit his conviction to stand. State v. Jones, 1975-NMCA-078, 88 N.M. 110, 537 P.2d 1006, cert. denied, 88 N.M. 318, 540 P.2d 248. Doctrine of cumulative error is recognized in New Mexico. State v. Parker, 1973-NMCA-055, 85 N.M. 80, 509 P.2d 272. The doctrine of cumulative error is recognized in New Mexico and may be raised as an issue on a direct appeal. However, the doctrine is not applicable if the claimed errors were not committed by the trial court and the entire record demonstrates that the defendant did receive a fair trial. State v. Seaton, 1974-NMSC-067, 86 N.M. 498, 525 P.2d 858. Cumulative error found. - In trial for aggravated assault on a police officer, where prosecutor introduced into evidence a butcher knife that could not be connected with defendants, made reference to the stabbing of a United States senator in Washington, D.C., and expressed his personal opinion of the defendants' guilt, cumulative impact of three items of misconduct was so prejudicial as to deprive defendants of a fair trial and called for reversal of conviction even where one defendant objected to only two of the items and the other defendant objected to none. State v. Vallejos, 1974-NMCA-009, 86 N.M. 39, 519 P.2d 135. Cumulative error deprives a defendant of a fair trial. - In a trial for criminal sexual penetration of a minor, where the prosecutor failed to disclose evidence favorable to the defense until just before trial started, where the district court permitted the trial to go forward without allowing defendant any additional time to conduct a meaningful review of untimely disclosed evidence, where defendant was forced to call a witness without the benefit of a prior interview, where defendant had no opportunity to effectively use the untimely disclosed evidence to his advantage, and where the jury was presented with six identical counts per child, with no way to distinguish between each offense or act, the numerous errors, considered together, rose to the level of prejudice so great that defendant was deprived of a fair trial. State v. Huerta-Castro, 2017-NMCA-026. Cumulative error by trial court and defense counsel denied defendant a fair trial. - In defendant's trial for criminal sexual penetration of a minor, criminal sexual contact of a minor, and bribery of a witness, where the trial court erroneously admitted an apparent admission of guilt by defendant, and where defendant's trial counsel failed to investigate the sexual molestation charges against the victim's stepfather, failed to discover the victim's recantation of her allegations against her stepfather, failed to move to strike or otherwise remedy the characterization of his client as a sexual deviant, and failed to review and take steps to properly introduce a Children, Youth and Families Department report that called into question the victim's credibility, cumulative error denied defendant a fair trial. State v. Miera, 2018-NMCA-020. Improperly admitted evidence must not contribute to conviction. - In order for an appellate court to say that the error was harmless, they must also be able to say that the other evidence was so overwhelming that the improperly admitted evidence did not contribute to the conviction. State v. Self, 1975-NMCA-062, 88 N.M. 37, 536 P.2d 1093. Peephole evidence very likely substantially contributed to the jury's guilty verdicts and is not harmless error under Paragraph A of this rule. State v. Kerby, 2005-NMCA-106, 138 N.M. 232, 118 P.3d 740, cert. granted, 2005-NMCERT-008. Comment on defendant's failure to testify. - Closing remarks by prosecutor as to "uncontroverted testimony" by state witnesses did not address itself to the defendant's failure to testify so as to constitute fundamental error. State v. Aguirre, 1972-NMSC-081, 84 N.M. 376, 503 P.2d 1154. Where prosecution improperly commented on accused's failure to testify in his own behalf, and where it could not be contended that the evidence of guilt was overwhelming nor that the remark of the prosecutor was an inconsequential factor in the outcome of the case, the harmless error rule was inapplicable. State v. Ford, 1969-NMCA-092, 80 N.M. 649, 459 P.2d 353 (decided under former law). Testimony regarding the behavior of sexually abused children. - Testimony by a S.A.F.E. House interviewer, improperly admitted as lay witness testimony, that the majority of children she has interviewed delayed in disclosing sexual abuse was not harmless because there was a reasonable probability that the error affected the jury's verdict by supporting the victim's credibility. State v. Duran, 2015-NMCA-015. The improper admission of a child's incriminating statements in DWI investigation deemed harmless in light of properly admitted evidence. - In delinquency proceedings, where the district court excluded sixteen-year-old child's statements that he drank three beers approximately fifteen to thirty minutes prior to his encounter with police officers, and where the district court then allowed the prosecutor to elicit testimony from the arresting officer regarding those same statements, the admission of the child's statements was improper because they were elicited before the child was advised of his statutory right to remain silent in violation of Section 32A-2-14(D) NMSA 1978. The improperly admitted statements were harmless, however, because when viewed in light of the properly admitted evidence, that the officer, upon approaching child's vehicle, detected the odor of alcohol, that child appeared to be intoxicated, smelled of alcohol, had bloodshot and watery eyes and slurred speech, performed poorly on field sobriety tests, stated that he was "pretty buzzed", and that the results of child's breath alcohol tests established child's alcohol concentration level of 0.14 and 0.15, there was no reasonable probability that the admission of the officer's testimony regarding the statements child made prior to being advised of his right to remain silent affected the verdict. State v. Wyatt B., 2015-NMCA-110, cert. denied, 2015-NMCERT-010. Failure to grant juvenile defendant's motion to suppress statements made without counsel present was harmless. - In a first-degree murder trial, it was error for the district court to deny the juvenile defendant's motion to suppress statements he made in a police interview in the absence of his appointed counsel, because once the record had established that the Sixth Amendment right to counsel had attached, the juvenile's right to counsel could not be waived outside the presence of counsel, but the error was harmless because the statement sought to be suppressed introduced facts favorable to the defendant and there was no reasonable probability the admission of the statements contributed to defendant's convictions. State v. Rivas, 2017-NMSC-022. For a district attorney to be both witness and prosecutor is reversible error. When a district attorney finds it necessary to testify on behalf of the prosecution, he should withdraw and leave the trial of the case to other counsel. State v. McCuistion, 1975-NMCA-067, 88 N.M. 94, 537 P.2d 702, cert. denied, 88 N.M. 318, 540 P.2d 248. Admission of coconspirator's testimony may constitute a technical violation of the accused's right to confront and cross-examine the witnesses against him, but such admission does not require a reversal of conviction if it constituted error harmless beyond a reasonable doubt. Admission of such statements was harmless beyond a reasonable doubt where the properly admitted evidence of guilt was overwhelming, and the prejudicial effect of the codefendants' statements was insignificant by comparison. State v. Rondeau, 1976-NMSC-044, 89 N.M. 408, 553 P.2d 688. Admission of codefendant's plea agreement as substantive evidence against defendant was not harmless error. - Where defendant was charged with receiving or transferring a stolen vehicle, conspiracy to receive or transfer a stolen vehicle, possession of burglary tools, and two counts of harboring a felon, and where the district court admitted, without any limiting instruction, a codefendant's plea and disposition agreement in order to prove elements of the crime against defendant, including knowledge that the codefendant had committed felonies and that defendant had reason to believe that the automobile in question was stolen, the admission of the plea agreement was not harmless, because a codefendant's guilty plea may not be used as substantive evidence to prove a defendant's guilt, and it cannot be said that there was no reasonable possibility that the substantive use of the codefendant's guilty plea affected the verdict. State v. Flores, 2018-NMCA-075. Admission of evidence of the defendant's other than honorable discharge from the military service was harmless error where other strong and competent admissible evidence supported the jury verdict. State v. Ho'o, 1982-NMCA-158, 99 N.M. 140, 654 P.2d 1040. Improper admission of testimony related to the operation of cell phone towers deemed harmless in light of properly admitted evidence. - In a first-degree murder trial, where the trial court erred in allowing a lay witness to testify regarding how cell phone towers operate, which required a duly qualified expert to explain the technical nature of the many variables that influence how cell towers connect with cell phones, the error was harmless, because other testimony, to which there was no objection, summarized the information contained within the call detail report record and the cell tower report produced by the lay witness, and therefore defendant failed to establish that there was a reasonable probability that the jury would have had a reasonable doubt concerning his guilt as a result. State v. Carrillo, 2017-NMSC-023. Statements based on evidence and reasonable inferences. - Statements by counsel in closing arguments having their basis in the evidence, together with reasonable inferences to be drawn therefrom, are permissible and do not warrant reversal. State v. Santillanes, 1970-NMCA-003, 81 N.M. 185, 464 P.2d 915 (decided under former law). Claim of ineffective assistance of counsel. - A conviction is not to be reversed on a claim of ineffective assistance of counsel unless the proceedings leading to his conviction amount to a sham, a farce or a mockery of justice. State v. Trejo, 1972-NMCA-019, 83 N.M. 511, 494 P.2d 173. The failure of counsel to object to the words, "my wife said she heard glass," did not deprive defendant of the effective assistance of counsel. State v. Baca, 1969-NMCA-070, 80 N.M. 488, 458 P.2d 92 (decided under former law). Jury seeing defendant in handcuffs. - Where there was no showing that any juror saw defendant handcuffed in courtroom, defendant was not prejudiced, or denied a fair trial or due process. State v. Foster, 1971-NMCA-134, 83 N.M. 128, 489 P.2d 408 (decided under former law). Absent proof or contention that defendant had been in handcuffs in the courtroom during jury selection or trial, without reasonable justification, defendant's objection constitutes no reversible error. State v. Newman, 1971-NMCA-137, 83 N.M. 165, 489 P.2d 673 (decided under former law). Comments by court held not to show bias against party. - Comments by the trial court to defense counsel that "you shouldn't be calling people like that as a witness", referring to an individual who had not been called by the defense, and that "if you don't want your witnesses cross-examined, don't call them", although indicative of impatience, did not display bias against or in favor of a party, nor did they amount to an undue interference by the trial court or show such a severe attitude that proper presentation of the cases was prevented, and consequently, the remarks did not deprive defendant of a fair trial. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485. Communication between jury and trial judge. - The presumption of prejudicial error does not automatically attach in all cases involving attempted communication between jury and trial judge. There must be at least some indication, however slight, in the record that the event complained of gives rise to the likelihood of prejudice. State v. Trujillo, 1973-NMCA-012, 84 N.M. 593, 506 P.2d 337. It is highly improper for the court to have any communication with the jury, except in open court and in the presence of the accused and his counsel. Although the bare fact of such a communication does not, in all cases, necessitate a new trial, it must affirmatively appear that no prejudice resulted to the defendants and the burden is on the state to establish this as a fact. State v. Brugger, 1972-NMCA-102, 84 N.M. 135, 500 P.2d 420. Questions as to race of friend of defendant. - Where defendant convicted of distribution of a controlled substance was a Negro, and the transactions complained of occurred between defendant and an undercover agent at the home of a white female friend of defendant, prosecutor's questions which asked that the woman be identified as "white or black" did not, as a matter of law, constitute fundamental error. State v. Parker, 1973-NMCA-055, 85 N.M. 80, 509 P.2d 272. Racial composition of jury. - One is not entitled to relief simply because there is no member of his race on the jury unless he shows that the absence results from purposeful discrimination. State v. Newman, 1971-NMCA-137, 83 N.M. 165, 489 P.2d 673 (decided under former law). Waiver by defendant of error of denial of motion for directed verdict. - When the defendant in a murder trial, having moved for a directed verdict at the close of the state's case in chief on grounds of insufficient evidence, took the stand after the denial of the motion, admitted that he fired the shot and asserted the defense of self-defense, he waived the error, if any, in the denial of his motion. State v. Quintana, 1974-NMCA-095, 86 N.M. 666, 526 P.2d 808, cert. denied, 86 N.M. 656, 526 P.2d 798. Waiver of error of nonresponsive answer by witness. - Where a witness for the state gave a potentially prejudicial and nonresponsive answer on direct examination and was thereafter cross-examined and examined on redirect, and only after the examination of the witness was concluded did defendant move for a mistrial on the basis of the nonresponsive answer, then by lack of timely objection defendant waived the claimed error. State v. Milton, 1974-NMCA-094, 86 N.M. 639, 526 P.2d 436. Questions regarding prior convictions. - Where the very essence of defendant's defense hinged upon his credibility, questioning the defendant about his prior misdemeanor convictions for possession of marijuana, which easily conjures notions and prejudices in the mind of a juror, could not be rectified by an admonition to disregard such testimony and was reversible error. Albertson v. State, 1976-NMSC-056, 89 N.M. 499, 554 P.2d 661. The damage implicit in asking defendant's mother whether she knew of defendant's past convictions of crimes was in no way repaired by virtue of the fact that the objection was sustained. Neither was it overcome by the admonitions given the jury. Therefore, the asking of such a question constituted reversible error, and a mistrial should have been declared. State v. Rowell, 1966-NMSC-231, 77 N.M. 124, 419 P.2d 966. Question suggesting conviction of rape held not prejudicial. - Where it was made clear to the jury by two answers of appellant, and by the instruction of the court, that appellant was not convicted of statutory rape, as suggested by the question to which objection was made, if any error was committed by asking such question, such error was not prejudicial to appellant under the facts. State v. Williams, 1966-NMSC-145, 76 N.M. 578, 417 P.2d 62 (decided under former law). Allowing jury to hear tape after case submitted to jury. - Where trial court allowed the jury to listen again to a tape recording allegedly containing defendant's voice after the case had been submitted to the jury for decision, there was a presumption of prejudicial error and the burden was upon the state to overcome the presumption by showing that the jury was not prejudiced by the playing of the tape. State v. Ross, 1973-NMCA-072, 85 N.M. 176, 510 P.2d 109. Refusing to hear evidence about fairness of lineup procedure. - Trial court's error in refusing to hear defendant's evidence concerning fairness of lineup procedure was not harmless where evidence as to the lineup identification was the only evidence which directly identified the defendant. State v. Torres, 1970-NMCA-017, 81 N.M. 521, 469 P.2d 166, cert. denied, 81 N.M. 506, 469 P.2d 151 (decided under former law). Refusing to allow expert to testify regarding validity of lay opinion. - Though the trial judge should probably have allowed defendant's expert to testify regarding the validity of lay opinion on defendant's mental condition, defendant was denied no substantial right, nor was he substantially harmed such that he was denied a fair trial, furthermore, the record clearly showed that the expert witness had an opportunity after the disallowed question to state the difficulty a lay person would have in forming a valid opinion as to defendant's mental condition. State v. Lujan, 1975-NMSC-017, 87 N.M. 400, 534 P.2d 1112, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 400 (1975). Where court was unable to find in newspaper article anything prejudicial to defendant or which could have aroused public excitement or feeling against him, and where it was neither suggested nor argued that any of the jurors who tried the case had read the article, defendant could not have been prejudiced by it. State v. Lindsey, 1969-NMCA-121, 81 N.M. 173, 464 P.2d 903, cert. denied, 81 N.M. 140, 464 P.2d 559, 398 U.S. 904, 90 S. Ct. 1692, 26 L. Ed. 2d 62 (1970) (decided under former law). Delay of 40 days between commission of offense and arrest of defendant was not in itself suggestive of prejudice. State v. Polsky, 1971-NMCA-011, 82 N.M. 393, 482 P.2d 257, cert. denied, 82 N.M. 377, 482 P.2d 241, 404 U.S. 1015, 92 S. Ct. 688, 30 L. Ed. 2d 662 (1972). Failure to attempt to suppress evidence arising from alleged illegal arrest. - Where defendant asserted his arrest had been illegal and the subsequent finding of heroin "arose" from the claimed illegal arrest, so that he was deprived of his fundamental rights by the admission into evidence of heroin, but defendant did not attempt to suppress this evidence prior to trial nor object to testimony relative thereto at trial, then despite defendant's claim that under the "harmless error" rule no error is harmless if it is inconsistent with substantial justice, and his reliance on the "plain error" rule, the court of appeals could not hold there was an illegal arrest as a matter of law. State v. Bauske, 1974-NMCA-078, 86 N.M. 484, 525 P.2d 411. Failure of state to show that witness unavailable before admitting prior testimony. - Although admission of a material witness's preliminary hearing testimony was improper because the state failed to show that the witness was unavailable, it was not prejudicial since testimony of several other witnesses established the essential elements of the crime, and a trial court may in its discretion permit cumulative testimony. State v. Mann, 1975-NMCA-045, 87 N.M. 427, 535 P.2d 70. Inference of defendant's guilt from refusal of defendant's witness to testify. - Once the state has obtained the benefit of the inference of defendant's guilt by a witness and associate of defendant invoking his fifth amendment right not to testify, which is not subject to cross-examination, then the state cannot have the benefit of a presumption that this inference was not prejudicial and shift the burden to defendant to show there was prejudice. State v. Vega, 1973-NMCA-085, 85 N.M. 269, 511 P.2d 755. Requiring oath as "fostering religion". - Defendant's contention that by requiring an oath by witnesses and jurors, the state "openly fostered religion", when made without any showing that the defendant was affected thereby, is at best a specie of harmless error. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139 (decided under former law). Inconsistent verdicts are not necessarily irrational. - Defendant's conviction of rape and acquittal of sodomy was not an irrational result amounting to fundamental error, since even assuming the verdicts were inconsistent, reviewing court can only speculate as to why the jury reached that result. That the verdicts may not be in harmony does not mean they are irrational. State v. Padilla, 1974-NMCA-029, 86 N.M. 282, 523 P.2d 17, cert. denied, 86 N.M. 281, 523 P.2d 16. Talking to state's witness during recess in defendant's cross-examination. - Absent a showing of prejudice, the denial of a motion for a mistrial because the district attorney talked to a state's witness outside the defendant's presence and during a recess in the defendant's cross-examination of such witness is not reversible error. State v. Mosley, 1965-NMSC-081, 75 N.M. 348, 404 P.2d 304 (decided under former law). Requiring original court-appointed counsel to continue. - Where defendant claimed it was error for trial court to require original counsel to continue in the case, with no contention that he was prejudiced by the representation of original counsel, the claim was no more than a claim that defendant had a right to choose his court-appointed counsel, and he had no such right. State v. Williams, 1971-NMCA-143, 83 N.M. 185, 489 P.2d 1183, cert. denied, 83 N.M. 258, 490 P.2d 975 (decided under former law). Objection to hearsay evidence promptly sustained. - The prompt sustaining of defendant's objection and the admonition to disregard the answer cured any prejudicial effect from testimony inadmissible because hearsay concerning the defendant's hitting of a child, and the prosecutor's attempt to evade the trial court's exclusionary ruling did not deprive defendant of a fair trial because objection to the question was promptly sustained and the question was never answered. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170, overruled on other grounds by State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811. Failure to prove surplusage in indictment. - Where the essential elements of the crime of burglary of an automobile were established, the model and license of the vehicle were surplusage in the indictment and need not be proved, thus failure to do so did not constitute reversible error. State v. Newman, 1971-NMCA-137, 83 N.M. 165, 489 P.2d 673 (decided under former law). Refusal to strike testimony where witness does not remember making statement. - It was not abuse of discretion by trial court to refuse to strike expert testimony from record where witness did not deny that he gave testimony appearing in record, but claimed only to not remember making statement. State v. Chavez, 1972-NMCA-127, 84 N.M. 247, 501 P.2d 691. Failure to grant continuance when witness's name given to defendant day before trial. - Defendant was entitled as a matter of law to a continuance to obtain a deposition where state, after having provided defendant with a supposedly complete list of witnesses to appear at trial, sought, over defendant's objections, to add an important witness whose name the state had disclosed to the defendant's attorney by phone the day before. Since the witness's testimony was critical and could not have been reasonably anticipated, failure of trial court to grant such continuance constituted an abuse of discretion and was so prejudicial of the substantial rights of the defendant as to necessitate reversal. State v. Billington, 1974-NMCA-010, 86 N.M. 44, 519 P.2d 140. Granting of separate trials to jointly-charged defendants is a matter resting within the discretion of the trial judge, and this right to a separate trial is not to be equated with the concept of fundamental error. This concept is bottomed upon the innocence of the accused, or the corruption of justice. It is resorted to in a criminal case only if the innocence of defendant appears indisputable, or the question of his guilt is so doubtful that it would shock the conscience to permit his conviction to stand. State v. Carrillo, 1970-NMCA-127, 82 N.M. 257, 479 P.2d 537. Where questioned evidence establishes matters not in dispute. - Where the only probative effect the admission into evidence of prosecutrix's glasses could have had was to establish their existence, and to establish that prosecutrix had been in the area where they were found, and neither the existence of the glasses nor the fact that prosecutrix had been at the place where they were found is in dispute, their admission could not possibly have prejudiced defendant. State v. Carrillo, 1970-NMCA-127, 82 N.M. 257, 479 P.2d 537. Inference from lineup identification testimony held not prejudicial. - Where defendant was positively identified by other testimony to which no objection was made, any inference from stricken lineup testimony could not be considered to be so prejudicial that the trial court was required to grant a mistrial when defendant never asked for a mistrial. State v. Hunt, 1972-NMCA-026, 83 N.M. 546, 494 P.2d 624. Not keeping jury together. - Where there is absolutely no showing of any prejudice that the jury was not kept together constitutes no error. State v. Rose, 1968-NMSC-091, 79 N.M. 277, 442 P.2d 589, cert. denied, 393 U.S. 1028, 89 S. Ct. 626, 21 L. Ed. 2d 571 (1969) (decided under former law). Inadvertent reference to other charges pending against defendant. - Where the inadvertent conduct of the trial court in referring to other charges pending against defendant was of such minor significance that the appellate court was unable to ascribe to it any improper suggestion by the court or improper effect upon the jury, there was no prejudicial error. State v. Foster, 1971-NMCA-134, 83 N.M. 128, 489 P.2d 408 (decided under former law). Where error in judgment is result of inadvertence, it is subject to amendment to conform with the verdict. State v. Soliz, 1968-NMSC-101, 79 N.M. 263, 442 P.2d 575 (decided under former law). Court addressing witness by first name. - Fact that the court, in asking the first question, addressed the expert witness by his first name was an impropriety on the part of the court, but it was in no way questioned at the time, and was of such minor significance that it could not have been prejudicial. State v. Favela, 1968-NMCA-065, 79 N.M. 490, 444 P.2d 1001 (decided under former law). Failure to instruct jury on essential elements of crime charged. - A jury must be instructed on the essential elements of the crime charged. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, modified, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464. Supplying impeachment instruction that had been omitted. - Where the court acted immediately to supply the impeachment instruction as soon as its omission became known and appellant availed himself fully of the opportunity to argue the point prior to the state's closing its argument, appellant has not met the burden imposed upon him and the error was harmless. State v. Lindwood, 1968-NMCA-063, 79 N.M. 439, 444 P.2d 766 (decided under former law). Where evidence does not support numerous instructions given jury. - Defendant convicted of first-degree murder for killing the victim by striking her with a cinder block after allegedly raping her was entitled to reversal of conviction, even in absence of objection by defendant at trial, where evidence supported judge's instruction on willful, deliberate or premeditated killing, but did not support instructions on theories of felony murder; murder by act dangerous to others, indicating depraved mind; or murder from deliberate and premeditated design unlawfully and maliciously to effect death of any human being (transferred intent). Such error was fundamental, since an intolerable amount of confusion was introduced into the case, and defendant could have been convicted without proof of all necessary elements. State v. DeSantos, 1976-NMSC-034, 89 N.M. 458, 553 P.2d 1265. Laying of no foundation for testimony found harmless. - Even if no foundation had been laid for the witness to characterize the substance sold as marijuana, the error in allowing testimony was harmless because that fact had been stipulated by expert witness. State v. Latham, 1972-NMCA-025, 83 N.M. 530, 494 P.2d 192. Waiver of defect in instructions by failure to object. - Although appellant moved at the close of the state's case as well as at the close of all testimony, and by motion for a new trial after verdict, to dismiss the charges because of a failure of proof to support a conviction of murder either in the first or second degree or of manslaughter, where no objection to the jury being instructed on manslaughter along with the two degrees of murder was stated in the record, this constitutes a waiver of errors or defects in the instructions. State v. Lopez, 1968-NMSC-092, 79 N.M. 282, 442 P.2d 594 (decided under former law). Mistrial motion used to specify fundamental trial error. - Use of the motion for a mistrial is not appropriately addressed to mere erroneous rulings of law, but generally is used to specify such fundamental error in a trial as to vitiate the result. State v. Day, 1980-NMSC-032, 94 N.M. 753, 617 P.2d 142, cert. denied, 449 U.S. 860, 101 S. Ct. 163, 66 L. Ed. 2d 77 (1980). Motion for mistrial is addressed to trial court's discretion and is reviewable for an abuse of discretion. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170. Granting of continuance is within discretion of court, and absent a showing of abuse of discretion the trial court's decision will stand. State v. Blea, 1975-NMCA-129, 88 N.M. 538, 543 P.2d 831, cert. denied, 89 N.M. 5, 546 P.2d 70. Admission of evidence is matter within discretion of court. - The admission or exclusion of evidence in the trial of a criminal case is a matter within the sound discretion of the trial court and will not be disturbed on appeal unless there has been a clear abuse. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled on other grounds by City of Albuquerque v. Haywood, 1998-NMCA-029, 124 N.M. 661, 954 P.2d 93 (Ct. App. 1997). Clerical error not precluding amendment of information. - Where, because of a clerical error, the written bind-over order omitted two crimes with which the defendant had been charged, and the magistrate had in fact orally announced that he was binding over the defendant on those counts, the written bind-over order was subsequently effectively amended to conform to the oral order, and the original information could be amended to conform to the bind-over order. State v. Coates, 1985-NMSC-091, 103 N.M. 353, 707 P.2d 1163. Clerical error in judgment and sentence that could be corrected. - Where defendant pled no contest to two separate crimes, one of which would result in a nine-year sentence and the other of which would result in a three-year sentence with two years unconditionally suspended, and where the plea agreement recited that the sentence for both convictions would run consecutively for a total of ten years in the department of corrections, and where, at the plea hearing, the district court reviewed the terms of the plea agreement with defendant on the record, acknowledged that the agreement called for a ten-year period of incarceration, and accepted defendant's plea, but where the written judgment and sentence that was then entered recited that the sentences for the two crimes would run concurrently, with the result that defendant effectively was sentenced to nine years of incarceration, the district court was within its authority to correct the sentence two years after its original entry, because based on the record below, it was clear that the judgment and sentence contained a clerical error, and Rule 5-113(B) NMRA authorizes a district court at any time to correct clerical mistakes in judgments, orders or other parts of the record. State v. Stejskal, 2018-NMCA-045. Am. Jur. 2d, A.L.R. and C.J.S. references. - Counsel's reference, in presence of sequestered witness in state criminal trial, to testimony of another witness as ground for mistrial or reversal, 24 A.L.R.4th 488. Failure to object to improper questions or comments as to defendant's pretrial silence or failure to testify as constituting waiver of right to complain of error - modern cases, 32 A.L.R.4th 774. Prosecutor's appeal in criminal case to racial, national, or religious prejudice as ground for mistrial, new trial, reversal, or vacation of sentence - modern cases, 70 A.L.R.4th 664. What constitutes harmless or plain error under Rule 52 of the Federal Rules of Criminal Procedure - Supreme Court cases, 157 A.L.R. Fed. 521.