State v. Cardenas

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number: 2

Filing Date: March 27, 2025 3

NO. S-1-SC-39517 4

STATE OF NEW MEXICO, 5

Plaintiff-Appellee, 6

v. 7

CRISTAL CARDENAS, 8

Defendant-Appellant. 9

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 10 Conrad F. Perea, District Judge 11

Bennett J. Baur, Chief Public Defender 12 Caitlin C.M. Smith, Assistant Appellate Defender 13 Santa Fe, NM 14

for Appellant 15

Raúl Torrez, Attorney General 16

Serena R. Wheaton, Assistant Attorney General 17 Santa Fe, NM 18

for Appellee19

1

OPINION 1

VIGIL, Justice. 2

{1} Defendant Cristal Cardenas appeals directly to this Court from her convictions 3 of first-degree murder, NMSA 1978, § 30-2-1(A)(1) (1994), conspiracy to commit 4 first-degree murder, NMSA 1978, § 30-28-2 (1979), and criminal solicitation to 5 commit first-degree murder, NMSA 1978, § 30-28-3 (1979). Defendant presents 6 four arguments: (1) a series of evidentiary rulings resulted in reversible cumulative 7 error, (2) the State presented insufficient evidence to convict Defendant of first-8 degree murder, (3) the convictions for conspiracy and criminal solicitation constitute 9 double jeopardy, and (4) the district judge violated her constitutional right to a public 10 trial. 11

{2} We reverse Defendant's convictions based on a single evidentiary ruling. We 12 conclude that the district court abused its discretion and committed reversible error 13 when it allowed the State to question Defendant about her six-month-old child's 14 positive methamphetamine test. We reject Defendant's sufficiency of the evidence 15 and double jeopardy arguments and, therefore, remand for a new trial on all charges 16 for which the jury convicted Defendant. Finally, we emphasize that the First 17 Amendment to the United States Constitution provides the general public and the 18 press with the right to access criminal trials. Therefore, although we do not reverse 19

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Defendant's convictions on the basis of this issue, we conclude that the district court 1 erred by seizing the notes of Defendant's trial observer without legal justification. 2

I. BACKGROUND 3

{3} In the early morning hours of March 25, 2018, Mario Cabral and Vanessa 4 Mora were shot to death in their home. Mora's thirteen-year-old daughter, S.D., 5 awoke to the sounds of a vehicle. She heard sliding glass doors shattering, footsteps, 6 and gunshots. Struck with fear, S.D. covered herself with her blanket and fell asleep. 7 She was awakened at about 9:00 a.m. by Cabral's and Mora's phones ringing 8 without an answer. Upon entering the living room, she found Cabral and Mora 9 deceased. S.D. ran to her neighbor's home for help, and the neighbor called the 10 police. 11

{4} In 2007, Defendant and Cabral had a child together, Y.C., but the couple's 12 relationship ended. In 2015, Defendant filed a petition in family court against Cabral 13 to establish paternity, determine custody and time-sharing, and assess child support. 14 Subsequently, in early November 2016, the family court entered an interim child 15 custody and visitation order limiting Cabral's visitation with Y.C. 16

{5} Defendant testified that she was not angry about the family court's decision 17 to allow expanded visitation with Cabral, but the State presented evidence that 18 Defendant hired a hitman to kill Cabral over the custody case. Edward Alonso 19

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testified at trial that, shortly after he got out of prison in January 2018, a friend 1 connected him by phone with Defendant, who asked if he would kill someone for 2 her. For $10,000—half upfront—he agreed. 3

{6} Alonso testified that he met with Defendant several times and that sometimes 4 Defendant's boyfriend, Luis Flores, was present. Defendant gave him the layout of 5 the property where Cabral lived, the address of the property, a description of the 6 property, and a photo of Cabral. Together, Defendant and Alonso surveilled where 7 Cabral lived. Defendant told Alonso that there was a narrow time frame for the 8 murder because of the custody battle and that if he would not murder Cabral, Flores 9 would do it. At one meeting, Defendant and Flores showed Alonso a .45-caliber gun. 10 Defendant paid Alonso $3,000. Because it was less than the agreed-upon amount, 11 he decided not to murder Cabral. 12

{7} In mid-February of 2018, Alonso was arrested on the way back from where 13 Cabral lived for having a gun while on probation. He decided to inform the FBI of 14 the plot to kill Cabral. He told the FBI that Cabral would be killed in the following 15 month with a .45-caliber gun and gave them a description of the property where 16 Cabral lived. 17

{8} Former FBI agent George Dougherty testified about his interactions with 18 Alonso. ) He stated that Alonso offered information about a murder for hire that 19

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Alonso agreed to commit. According to Agent Dougherty, Alonso offered physical 1 descriptions of the persons involved, Defendant's first name, Cabral's first name, 2 and directions to where Cabral lived. Following Alonso's directions, Agent 3 Dougherty was able to locate where Cabral lived, which matched Alonso's 4 description. He learned that Defendant was, in fact, involved in a custody battle with 5 Cabral. 6

{9} Agent Dougherty concluded that he "couldn't find anything to show that 7 [Alonso] wasn't being 100 percent truthful" and that Alonso's account "had merit." 8 On the basis of Alonso's information, the FBI warned Cabral that there was a threat 9 against his life. 10

{10} Additional inculpatory evidence presented by the State included photographs 11 from Defendant's phone showing the back of the house where the murders occurred. 12 Although a witness testified that she took pictures of where Cabral lived at 13 Defendant's request to assist in the custody battle, that witness did not recall ever 14 taking pictures of the back of the house. Defendant also had numerous aerial images 15 on one of her phones depicting where the victims lived and the surrounding area. 16

{11} Further, Cabral's aunt and uncle both testified that Defendant picked up a gun 17 that, according to the aunt, Defendant had previously left with her. Neither the aunt 18 nor uncle was certain about when the gun was picked up, and their accounts differed 19

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by several years. The uncle testified that the gun was .45-caliber. Police found .45 1 caliber ammunition, among other types, in one of the bedrooms in Defendant's 2 house. At the scene of the killings, police found .45 caliber shell casings. 3

{12} Defendant testified that she never had a gun, did not know Alonso, never paid 4 Alonso any money, never told him that Flores would kill Cabral, and did not want 5 Cabral dead. 6

{13} The jury acquitted Defendant of the first-degree murder of Mora but convicted 7 her of the first-degree murder of Cabral, conspiracy to commit first-degree murder, 8 and criminal solicitation of first-degree murder. 9

{14} Additional facts are provided as necessary in the following discussion. 10

II. DISCUSSION 11

A. The District Court Erred by Allowing the State to Question Defendant 12

About Her Child's Positive Methamphetamine Test; Because the Error 13

Is Not Harmless, We Reverse Defendant's Convictions 14

1. Cross-examination of Defendant 15

{15} Defendant had a child, Y.C., with Cabral. She also had a child, A.F., with 16 Flores, who was approximately six months old at the time of Defendant's arrest. 17

{16} Defendant testified in her defense. During cross-examination, the State asked 18 Defendant why six-month-old A.F. tested positive for methamphetamine. The 19 exchange was as follows: 20

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State: [Cabral] didn't care as much about [Y.C.] as you did, did 1 he? 2

Defendant: I always had [Y.C.] since she was born. 3 State: And [A.F.]? 4

Defendant: And [A.F.] 5

State: Both of those girls, they are your life, right? 6 Defendant: Yes, they are. 7

State: You would do anything to keep them safe? 8

. . . . 9

Defendant: Like, danger-wise? 10 State: Danger-wise, yes. 11 Defendant: Well, that's what a parent would keep a child safe. 12 State: I agree. So why is it that your child [A.F.] tested positive 13 for meth when y'all got arrested? 14

Defense counsel objected immediately. In a sidebar, defense counsel explained to 15 the district court that he had not received the required notice that the State intended 16 to use this evidence and that he had not heard until that moment of a child of 17 Defendant testing positive for methamphetamine. He further argued that the 18 methamphetamine test seemed to relate to the actions of Flores, not Defendant, and 19 that the evidence was prejudicial and without probative value. 20

{17} The State asserted that Flores pleaded guilty to endangering A.F. The State 21 argued Defendant was 22

leaving a misrepresentation on this jury of how great parents they are, 23 how she's the only one who cared for them, that all she ever wanted . . . 24 was these children to be safe and calm and comfortable. And that is a 25 big misrepresentation because if that were the truth, your honor, these 26 children would not be testing positive for methamphetamine. 27

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{18} The State further argued that Defendant's testimony on direct examination 1 placed her character at issue. More specifically, the State argued to the district court 2 that Defendant stated that she is "peaceful," "a good mother," and a "law-abiding 3 citizen." In addition, the State argued that Defendant was incorrect in maintaining 4 that notice is required under these facts: 5

[Rule 11-]404 [NMRA] goes to notice and character evidence when 6 you are trying to use that in your case in chief, not when if the defendant 7 is going to take the stand and this and that. That goes when you are 8 trying to bring in extraneous offenses in the case in chief for the 9 purposes of there's relevancy; there's modus operandi, whatever it is 10 that you're going to try and prove under that except . . . under the 11 exception to hearsay and under [Rule] 404, etc. 12

{19} The district court concluded that the State could elicit limited testimony about 13 A.F.'s positive methamphetamine test. Upon return to the courtroom, the State asked 14 Defendant whether A.F. tested positive for methamphetamine, to which she 15 responded, "I believe so." 16

{20} On redirect examination, Defendant stated that subsequent to A.F.'s positive 17 drug test, Flores was charged on the basis of A.F.'s test. She further testified that she 18 believed that the case against Flores was dismissed by the prosecutor. 19

2. Preservation and standard of review 20

{21} At trial, Defendant objected and preserved five distinct arguments against the 21 State's questioning regarding A.F.'s positive methamphetamine test. See State v. 22

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Clarkson, 1938-NMSC-012, ¶¶ 6-7, 42 N.M. 289, 76 P.2d 1161 (holding an 1 objection must specify particular reasons for a "review . . . by this [C]ourt" on 2 appeal). 3

{22} First, in accord with Rules 11-401 NMRA and 11-403 NMRA, Defendant 4 argued that the State's questioning was prejudicial and lacked value probative to this 5 case. See Rule 11-401 ("Evidence is relevant if it has any tendency to make a fact 6 more or less probable than it would be without the evidence, and the fact is of 7 consequence in determining the action."); Rule 11-403 ("The court may exclude 8 relevant evidence if its probative value is substantially outweighed by a danger of 9 one or more of the following: unfair prejudice, confusing the issues, misleading the 10 jury, undue delay, wasting time, or needlessly presenting cumulative evidence."). 11 Next, in response to the State's assertion under Rule 11-404(A)(2)(a)¹that 12 Defendant "put[] her character in on direct," Defendant argued that she did not, in 13 fact, do so. See 11-404(A)(2)(a) (stating that if evidence is admitted of a defendant's 14

"pertinent trait, . . . the prosecutor may offer evidence to rebut it"). Finally, 15 Defendant argued that the State's inquiry concerning A.F.'s positive test did not 16

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comply with Rule 11-404(B) due to insufficient notice and that this Rule generally 1 prohibits such character evidence. See 11-404(B)(1) ("Evidence of a crime, wrong, 2 or other act is not admissible to prove a person's character in order to show that on 3 a particular occasion the person acted in accordance with the character."); Rule 11-4 404(B)(3) (requiring "reasonable notice" to a defendant when the prosecution 5 intends to use "any evidence of crimes, wrongs, or other acts"; the notice must be 6 provided prior to trial unless the court excuses that failure "for good cause"). 7

{23} The district court then issued an oral ruling as follows: "This is a 11-404 8 argument, and with that, I'm not looking at propensity itself; I am just looking, in 9 fact, that the door was opened, and we can use this; I am going to allow this question, 10 but I am going to ask that it be, that it be limited." 11

{24} Based on the district court's language in its oral ruling, we infer that it 12 considered the arguments made by counsels to be governed by Rule 11-13 404(A)(2)(a), thus permitting rebuttal character evidence by "opening the door." See 14 Christopher B. Mueller and Laird C. Kirkpatrick, 1 Federal Evidence, § 4.24 at 703-15 04 (4th ed. 2013) ("When testimony ranges beyond these basic [background] facts 16

. . . and beyond matters that are directly relevant to the charges or defenses, and 17 paints not only a picture of innocence but a self-portrait of a person whose 18 background, outlook, personality, or philosophy make it unlikely that he committed 19

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the crime or had the necessary mental state, then it is fair to view this strategy as an 1 effort to prove good character, thus opening the door to counterattack by the 2 prosecutor."). 3

{25} Defendant, on appeal, only argues that the State's inquiry into A.F.'s positive 4 methamphetamine test was improper under Rule 11-404(B). Thus, Defendant may 5 have abandoned her objections under Rules 11-401, -403, and -404(A) despite 6 raising these objections at trial. See State v. Sandoval, 1975-NMCA-096, ¶ 11, 88 7 N.M. 267, 539 P.2d 1029 (concluding that issues not addressed in briefings were 8 deemed abandoned). 9

{26} However, this unique preservation and potential abandonment issue can and 10 should be cured by this Court by addressing the Rule 11-404(A)(2)(a) issue sua 11 sponte. See State v. Goss, 1991-NMCA-003, ¶ 12, 111 N.M. 530, 807 P.2d 228 12 ("Where defendants have failed to comply with [briefing rules] . . . , an appellate 13 court may decline to address such contention on appeal." (emphasis added)); State 14

v. Martinez, 1996-NMCA-109, ¶ 13, 122 N.M. 476, 927 P.2d 31 (stating that the 15 defendant's failure to explain how the issue was preserved in his briefing did not 16 compel the Court of Appeals to disregard the issue); cf. Doe v. State, 1975-NMCA-17 108, ¶ 36, 88 N.M. 347, 540 P.2d 827 (recognizing that an issue of a party's 18 fundamental rights which trial counsel "adequately notified" the district court of, but 19

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did not raise on appeal, could still be reviewed on appeal). Because Defendant 1 articulated the proper objections at trial, fairness tilts in favor of reviewing the Rule 2 11-404(A) issue as if put adequately before this Court. Cf. Huckins v. Ritter, 1983-3 NMSC-033, ¶ 3, 99 N.M. 560, 661 P.2d 52 ("The transcripts and briefs in this case 4 are sufficient to present the essential question for review on the merits."). We review 5 because the issue was adequately preserved in the district court. Rule 12-321 NMRA 6 ("To preserve an issue for review, it must appear that a ruling or decision by the trial 7 court was fairly invoked."). 8

{27} "We review the district court's decision to admit or exclude evidence for an 9 abuse of discretion." State v. Fernandez, 2023-NMSC-005, ¶ 8, 528 P.3d 621 10 (internal quotation marks and citation omitted). "An abuse of discretion occurs when 11 the ruling is clearly against the logic and effect of the facts and circumstances of the 12 case. We cannot say the trial court abused its discretion by its ruling unless we can 13 characterize it as clearly untenable or not justified by reason." State v. Bailey, 2017-14 NMSC-001, ¶ 12, 386 P.3d 1007 (internal quotation marks and citation omitted). 15

{28} As we explain below, the result is the same for analyses under Rules 11-16 404(A)(2)(a) and -404(B): the district court abused its discretion to admit this 17 inquiry. Because we further conclude that the error was not harmless, we reverse 18 Defendant's convictions. 19

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3. Analysis 1

a. Inquiry into A.F.'s positive methamphetamine test was inadmissible 2

under Rule 11-404(B) 3

{29} Defendant argues that the State did not give the notice required by Rule 11-4 404(B)(3) and that A.F.'s test was not admissible for any permitted use under Rule 5 11-404(B)(2). The State counters that the notice was sufficient because Defendant 6 seemed "familiar[] with the issue" based on the discussion with the district court 7 during the sidebar. The State additionally argues "that Defendant opened the door" 8 to the question about the positive methamphetamine test, invoking the doctrine of 9 curative admissibility. 10

{30} Rule 11-404(B)(1) states, "Evidence of a crime, wrong, or other act is not 11 admissible to prove a person's character in order to show that on a particular 12 occasion the person acted in accordance with the character." However, such 13 evidence is admissible "for another purpose, such as proving motive, opportunity, 14 intent, preparation, plan, knowledge, identity, absence of mistake, or lack of 15 accident." Rule 11-404(B)(2). Further, Rule 11-404(B)(3)(a) requires that "[i]n a 16 criminal case, the prosecution must provide reasonable notice of the general nature 17 of any evidence of crimes, wrongs, or other acts that the prosecutor intends to offer 18 at trial, so that the defendant has a fair opportunity to review it." 19

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{31} We need not reach Defendant's notice argument because the State has not 1 offered, or even made a serious attempt at presenting, any admissible purpose under 2 Rule 11-404(B) in this Court or the district court. Moreover, the doctrine of curative 3 admissibility argued by the State is inapposite. "Under the doctrine of curative 4 admissibility, a party may introduce inadmissible evidence to counteract the 5 prejudice created by their opponent's earlier introduction of similarly inadmissible 6 evidence." State v. Gonzales, 2020-NMCA-022, ¶ 12, 461 P.3d 920; see also United 7 States v. Nardi, 633 F.2d 972, 977 (1st Cir. 1980) (stating that the doctrine applies 8

"only when inadmissible evidence has been allowed, when that evidence was 9 prejudicial, and when the proffered testimony would counter that prejudice"); 10 Frederick C. Moss, The Sweeping-Claims Exception and the Federal Rules of 11 Evidence, 1982 Duke L.J. 61, 76 (February 1982) ("The doctrine of curative 12 admissibility should be limited, at least conceptually, to cases . . . in which the 13 admission of rebuttal evidence is justified to counteract prejudicial inadmissible 14 evidence introduced by the other side."). The State does not argue that Defendant 15 presented inadmissible evidence. Therefore, the doctrine of curative admissibility 16 cannot justify the prosecutor's inquiry into A.F.'s positive methamphetamine test. 17

{32} "[I]t is incumbent upon the proponent of Rule 11-404(B) evidence to . . . 18 cogently inform the court—whether the trial court or a court on appeal—[of] the 19

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rationale for admitting the evidence to prove something other than propensity." State 1

v. Gallegos, 2007-NMSC-007, ¶ 25, 141 N.M. 185, 152 P.3d 828. Here, the State 2 has made no argument that the inquiry into A.F.'s positive methamphetamine test 3 was admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, 4 identity, absence of mistake, or lack of accident" or any other purpose that might 5 satisfy Rule 11-404(B)(2). 6

{33} In light of the total absence of a permissible use under Rule 11-404(B)(2), we 7 conclude that it was an abuse of discretion to admit the inquiry into A.F.'s positive 8 methamphetamine test under Rule 11-404(B). See Bailey, 2017-NMSC-001, ¶ 12 9 (stating that a district court abuses its discretion when the ruling is "'untenable or 10 not justified by reason'" (citation omitted)). 11

b. Inquiry into A.F.'s positive methamphetamine test was inadmissible 12

under Rule 11-404(A)(2)(a) 13

{34} Under Rule 11-404(A)(2)(a), a criminal defendant "may offer evidence of the 14 defendant's pertinent [character] trait." See also State v. Martinez, 2008-NMSC-060, 15 ¶ 29, 145 N.M. 220, 195 P.3d 1232 (stating that "substantive character testimony" 16 may be offered by a defendant to "establish a general character inconsistent with 17 guilt of the crime with which [the defendant] stood charged" (internal quotation 18 marks and citation omitted)). But if a defendant does so, a prosecutor may offer 19 evidence to rebut evidence of the pertinent character trait. Id. ¶ 24; cf. id. ¶ 33 (stating 20

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that by requiring a pertinent trait, Rule 404(A) confirms "that character evidence 1 must relate to a specific relevant trait in order to be admissible" and that "Rule 404 2 permits evidence of traits only" (internal quotation marks and citation omitted)). 3

{35} The classic way of offering character evidence involves calling a "defense 4 character witness" who testifies to the defendant's reputation or provides an opinion 5 on a defendant's pertinent trait. See Mueller & Kirkpatrick, supra, § 4.24 at 698. 6 However, defendant-witnesses can also address their own character by testifying 7 beyond background information and presenting self-portraits as persons whose 8 experience, personality, philosophy, and disposition make it less likely that they 9 committed the crime. See id. at 703-04. In such cases, "the defendant personally 10 opens the door to . . . counterattacks" on character, allowing the State to offer 11 evidence to rebut the image the defendant has created. Id. The State claims the latter 12 method of introducing character evidence is what happened in this case. 13

{36} At trial, the State argued that Defendant offered evidence of three character 14 traits: that she is a "law-abiding citizen," "peaceful," and "a good mother." Our 15 review of the record indicates that Defendant did not offer, or attempt to offer, proof 16 of these character traits on direct examination. In other words, there was no such 17 testimony to rebut. 18

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{37} Defendant did not testify that she was a law-abiding citizen. The testimony in 1 that broad ambit was that she was not prohibited from exercising her Second 2 Amendment rights and did not have a conviction for a felony, a crime of violence, 3 or domestic violence. Defendant's specific statements do not constitute evidence for 4 her character as a generally law-abiding citizen. See State v. Bogle, 376 S.E.2d 745, 5 751 (N.C. 1989) (stating that evidence of a lack of convictions merely indicates that 6 one has not been convicted of a crime, whereas "law-abiding" addresses a person's 7 character trait of abiding by all laws). 8

{38} The State similarly overreaches to contend that Defendant testified that she 9 had a character trait of peacefulness. Defendant stated that she was not angry with 10 the judge adjudicating her custody issues and that she "just wanted everything to go 11 right for [her] daughter[, Y.C.]." She stated that she "always encouraged [her 12 daughter, Y.C.,] to have visits with her dad" despite parenting difficulties, that she 13 never had a gun, and that she did not have a conviction for a felony, a crime of 14 violence, or domestic violence. This testimony does not equate to Defendant 15 testifying that she had a peaceful character. Moreover, even if she had, the State's 16 inquiry into A.F.'s positive methamphetamine test would be off-target and 17 inadmissible as a rebuttal. 18

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{39} Finally, we conclude that Defendant did not testify that she had the specific 1 character trait of being a good mother. In addition to stating that she wanted 2 everything to go well for her daughter, Y.C., Defendant testified that she planned to 3 transfer ownership of their house to Y.C. and that she put child support payments 4 into a savings account for Y.C. and encouraged Y.C. to have visits with her father, 5 Cabral. This does not amount to a proof or attempted proof of a character trait of 6 being a good mother. And there is no suggestion in this case that Defendant was 7 responsible for A.F.'s exposure to methamphetamine, so we are not persuaded that 8 the inquiry into A.F.'s positive test would be admissible to rebut evidence that she 9 had the character trait of a good mother had there been such evidence. 10

{40} When as in this case the defendant-witness testimony is focused on 11 background information and facts relevant to the charged crime, no "door" is opened 12 to an attack on character. See Mueller & Kirkpatrick, supra, § 4.24 at 703-04. Only 13 if the defendant-witness "ranges beyond these basic [background and relevant] 14 facts" to "personally" self-identify to a jury as the kind of person who would not 15 engage in the charged crime does the character-evidence "door" open. Id. 16 Accordingly, we conclude that it was an abuse of the district court's discretion to 17 allow the inquiry into the evidence under Rule 11-404(A)(2)(a) because Defendant 18 did not personally open the door to evidence of the specific character traits of being 19

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law-abiding, peaceful, or a good mother. See Bailey, 2017-NMSC-001, ¶ 12 (stating 1 that a district court abuses its discretion when its ruling is "'untenable or not justified 2 by reason'" (citation omitted)). 3

c. The district court's error was not harmless 4

{41} Having concluded that a nonconstitutional error has been committed, it is our 5 responsibility to reverse and remand for a new trial unless there is no reasonable 6 probability that the error affected the jury's verdict. State v. Tollardo, 2012-NMSC-7 008, ¶¶ 25, 36, 275 P.3d 110. To assess the probable effect of evidentiary error, we 8 evaluate the circumstances surrounding the error. Fernandez, 2023-NMSC-005, ¶ 9

24. This evaluation includes, but is not limited to, "the source of the error, the 10 emphasis placed on the error, evidence of the defendant's guilt apart from the error, 11 the importance of the erroneously admitted evidence to the prosecution's case, and 12 whether the erroneously admitted evidence was merely cumulative." Id. (internal 13 quotation marks and citation omitted). 14

{42} We begin by noting that the issue of A.F.'s drug test arose again during 15 Defendant's closing argument. Defendant stated that the question about the positive 16 drug test was a "punch below the belt," given that it referred to a case brought against 17 Flores, not her. And furthermore, argued Defendant, the case was dismissed. 18

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{43} The State interrupted with an objection: Defendant was "misrepresenting 1 things." The prosecutor asserted that there was no evidence put forth that the case 2 against Flores was dismissed and vehemently asserted that the case was not, in fact, 3 dismissed. The district court sustained the State's objection and instructed the jury 4 to disregard the discussion related to the charges against Flores. 5

{44} During her closing statement, Defendant attempted to mitigate the prejudice 6 from the inquiry but was improperly thwarted by the State. Defendant sought to 7 highlight that the child endangerment case against Flores was dismissed. But the 8 State objected and argued to the district court that there was no evidence presented 9 that the case against Flores was dismissed. This was false: Defendant testified that 10 she thought the case was dismissed. The prosecutor further stated unequivocally that 11 the case was not dismissed. This, too, was a false statement: as the State concedes 12 on appeal, the case was, in fact, dismissed. And, boldly, the prosecutor accused 13 Defendant's attorney of "misrepresenting things." All of these false statements were 14 made in front of the jury and quickly reinforced by the district court in its sustaining 15 of the State's objection. Under these circumstances, we are unconvinced by the 16 State's contention that the error was harmless. 17

{45} Moreover, the harmless error argument offered by the State is weak. The State 18 argues that it only "asked one question to rebut the image Defendant had painted of 19

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herself" and that the "question did not go the heart of the State's case or Defendant's 1 defense." Essentially, the State argues that the inquiry into A.F.'s positive 2 methamphetamine test was not very important or impactful. And yet the State made 3 multiple misstatements to the district court that, cumulatively, had the effect of 4 keeping this question in front of the jury and adding to the question's impact. 5

{46} Defendant makes a more compelling argument that the error was not 6 harmless. Defendant states that Defendant's credibility was an important aspect of 7 the case. The evidence, although sufficient to support Defendant's convictions, was 8 largely circumstantial. Defendant contends that the State's inquiry into A.F.'s 9 positive methamphetamine test portrayed her in a negative light, suggesting to the 10 jury that she might have criminal ties and might be capable of hiring a hitman or 11 committing murder. Moreover, the prosecutor's false statements during closing—12 which were implicitly endorsed by the district court's ruling to disregard 13 Defendant's discussion of Flores's case—unfairly undermined her credibility by 14 implying to the jury that she and her lawyer were untrustworthy. 15

{47} We conclude there is a reasonable probability that the error affected the jury's 16 verdict. See Tollardo, 2012-NMSC-008, ¶ 36 (stating that our harmless error review 17 of nonconstitutional error examines whether there was a reasonable probability that 18 the error affected the verdict). In this case, the State was the source of the error; the 19

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evidence of Defendant's guilt, although substantial, was circumstantial; the error 1 affected an important issue in the case—credibility; the State, although it disavows 2 the importance of the evidence at issue, went to great lengths to preserve its impact; 3 and, finally, the evidence at issue was not cumulative. See Fernandez, 2023-NMSC-4 005, ¶ 24 (instructing appellate courts to examine "the source of the error, the 5 emphasis placed on the error, evidence of the defendant's guilt apart from the error, 6 the importance of the erroneously admitted evidence to the prosecution's case, and 7 whether the erroneously admitted evidence was merely cumulative" (internal 8 quotation marks and citation omitted)). Accordingly, we reverse Defendant's 9 convictions and remand for a new trial. 10

B. Defendant's Convictions of Criminal Conspiracy and Criminal 11

Solicitation Do Not Violate Double Jeopardy Protections 12

{48} "A double jeopardy challenge is a constitutional question of law which we 13 review de novo." State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. 14

{49} Defendant argues that her convictions of conspiracy to commit first-degree 15 murder and criminal solicitation of first-degree murder violate double jeopardy 16 protections afforded by the Fifth Amendment to the United States Constitution. 17 When we conclude that there was a double jeopardy violation, we "vacate the 18 conviction carrying the shorter sentence." State v. Montoya, 2013-NMSC-020, ¶ 55, 19

306 P.3d 426. 20

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{50} "Double jeopardy protects against multiple punishments for the same 1 offense." State v. Silvas, 2015-NMSC-006, ¶ 8, 343 P.3d 616. "Cases involving 2 multiple violations of a single statute are referred to as 'unit-of-prosecution' cases, 3 while cases involving violations of multiple statutes are "double-description" cases. 4 Id. This is a double-description case. 5

{51} To analyze double-description cases, we apply a two-part framework. Id. ¶ 9. 6 First, we examine whether the defendant's conduct is unitary. Id. If not, there is no 7 double jeopardy violation and our analysis concludes. Id. 8

{52} However, if the conduct at issue is unitary, we examine whether the 9 Legislature intended to punish the offenses separately. Id. If we conclude that 10 separate punishments for the offenses are the Legislature's intent, there is no double 11 jeopardy violation. Id. Thus, to establish a double jeopardy violation in double-12 description cases, a defendant must demonstrate that the conduct is unitary and that 13 the Legislature did not intend separate punishments for the offenses at issue. Id. 14

{53} To determine whether conduct is unitary, we examine whether the defendant's 15 acts are "separated by sufficient indicia of distinctness." State v. Phillips, 2024-16 NMSC-009, ¶ 38, 548 P.3d 51 (internal quotation marks and citation omitted). 17

"Conduct is unitary when not sufficiently separated by time or place, and the object 18

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and result or quality and nature of the acts cannot be distinguished." Silvas, 2015-1 NMSC-006, ¶ 10. 2

{54} Defendant argues that we must presume that unitary conduct underlies the 3 solicitation and conspiracy convictions pursuant to the Foster presumption. See State 4

v. Foster, 1999-NMSC-007, ¶ 28, 126 N.M. 646, 974 P.2d 140, abrogated on other 5 grounds by Kersey v. Hatch, 2010-NMSC-020, ¶¶ 9, 17, 148 N.M. 381, 237 P.3d 6

683. Under Foster, we presume that conduct is unitary where jury instructions 7 provide alternative bases for conviction of an offense, one of which violates double 8 jeopardy, and where the record fails to disclose which alternative the jury relied on. 9 State v. Sena, 2020-NMSC-011, ¶ 47, 470 P.3d 227. 10

{55} The solicitation charge, in this case, required the jury to find that Defendant 11

"intended that another person commit first degree murder" and that Defendant 12

"solicited, requested, induced, or employed the other person to commit" the murder. 13 The conspiracy charge required the jury to find that "[D]efendant and another person 14 by words or acts agreed . . . to commit first degree murder" and that "[D]efendant 15 and the other person intended to commit first degree murder." Defendant argues that 16 both relevant jury instructions indicated the same date of offense—"on or about" the 17 date of the murders—and both stated that Defendant acted with "another person" 18 without specifying the other person. Furthermore, the prosecutor said during the 19

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closing argument that Defendant conspired with Alonso and Flores. In other words, 1 argues Defendant, the jury could have found Defendant guilty of conspiracy not with 2 Flores but with Alonso, which would have been based on the same conduct by 3 Defendant as for the crime of solicitation. Defendant concluded that "[t]he evidence 4 presented at trial did not establish separate factual bases for conspiracy and 5 solicitation." 6

{56} We disagree. In this case, the record discloses which alternative the jury relied 7 upon. The solicitation conviction is clearly based on Defendant's request that Alonso 8 murder Cabral for money. The crime was completed at the time of the request; the 9 later payment bolstered the evidence of Defendant's intent that Alonso commit the 10 murder. 11

{57} We further conclude that Defendant's conspiracy conviction was not 12 grounded in these actions but, instead, in an agreement with Flores. The jury 13 acquitted Defendant of the murder of Mora but convicted her of the murder of 14 Cabral. We can infer that Defendant was convicted of conspiracy with Flores in the 15 killing of Cabral. 16

{58} The evidence comports with this theory. There was testimony indicating that 17 a conspiracy between Defendant and Flores developed in response to Alonso's delay 18 and ultimate failure to complete the murder for hire. That is, Alonso testified that 19

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Defendant told him that Flores would murder Cabral if Alonso "wasn't able to finish 1 the job." Defendant and Flores also showed Alonso a .45 caliber gun and asked 2 whether he had an extra magazine for it. The structure of the verdict, in combination 3 with the evidence, indicates that the jury found a conspiracy between Defendant and 4 Flores, whereas the solicitation conviction is based on Defendant's request to 5 Alonso. Stated otherwise, the solicitation and conspiracy convictions were based on 6 entirely distinct conduct. Accordingly, we conclude that the Foster presumption has 7 been overcome in this case. See Sena, 2020-NMSC-011, ¶¶ 52, 56 (concluding that 8 the Foster presumption was overcome because "[a]lthough the [jury] instructions 9 permitted the jury to convict" the defendant of multiple crimes under the same 10 instruction's alternatives, the evidence demonstrated that the crimes were separated 11 by sufficient indicia of distinctness); see also State v. Franco, 2005-NMSC-013, ¶ 12 7, 137 N.M. 447, 112 P.3d 1104 ("The proper analytical framework is whether the 13 facts presented at trial establish that the jury reasonably could have inferred 14 independent factual bases for the charged offenses." (internal quotation marks and 15 citation omitted)). We thus conclude that there was no double jeopardy violation in 16 Defendant's convictions of both conspiracy and solicitation. Silvas, 2015-NMSC-17 006, ¶ 9. 18

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C. Substantial Evidence Supports Defendant's Conviction of First-Degree 1

Murder 2

{59} Defendant argues that the first-degree murder conviction is not supported by 3 sufficient evidence, which, if true, would bar retrial for that charge. State v. Consaul, 4 2014-NMSC-030, ¶ 41, 332 P.3d 850. The jury was required to find beyond a 5 reasonable doubt that, in relevant part, Defendant killed Cabral and did so with the 6 deliberate intent to take away his life. 7

{60} "Our standard of review for sufficiency of the evidence is highly deferential 8 to the jury's verdict." State v. Chavez, 2024-NMSC-023, ¶ 40, 562 P.3d 521. The 9 jury's verdict can be supported by "substantial evidence of either a direct or 10 circumstantial nature." State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 11 P.2d 1314. 12

{61} "We view the evidence in the light most favorable to the guilty verdict, 13 indulging all reasonable inferences and resolving all conflicts in the evidence in 14 favor of the verdict." Chavez, 2024-NMSC-023, ¶ 40 (internal quotation marks and 15 citation omitted). We do "not invade the jury's province as fact-finder by second 16 guessing the jury's decision concerning the credibility of witnesses, reweighing the 17 evidence, or substituting [our] judgment for that of the jury." Id. (internal quotation 18 marks and citation omitted). Accordingly, "evidence supporting acquittal does not 19 provide a basis for reversal because the jury is free to reject [the d]efendant's version 20

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of the facts." State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 1

"So long as a rational jury could have found beyond a reasonable doubt the essential 2 facts required for a conviction, we will not upset a jury's conclusions." Chavez, 3 2024-NMSC-023, ¶ 40 (internal quotation marks and citation omitted). 4

{62} Alonso identified Defendant as the person with whom he discussed murdering 5 Cabral, testifying that Defendant expressed a desire to have him killed within sixty 6 days. The murder ultimately occurred within that approximate time frame. Cabral's 7 aunt and uncle testified that Defendant obtained a .45-caliber gun from them before 8 the murders and Alonso testified that Defendant and Flores showed him a .45-caliber 9 gun. Police found .45-caliber ammunition in one of the bedrooms in Defendant's 10 home. The murder weapon was a .45-caliber gun. On a phone seized from 11 Defendant's car or home, police found photos of the back of the house where Cabral 12 lived—where the murders took place. Additionally, on a phone seized from 13 Defendant's home, police found numerous aerial images of the property where the 14 murders took place and the surrounding area. Alonso testified that Defendant told 15 him that if he was not able to murder Cabral, her boyfriend "was gonna take care of 16 it." 17

{63} Defendant argues that because the evidence from the crime scene was, as she 18 characterizes it, exculpatory of both herself and Flores, the foregoing nominally 19

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circumstantial evidence is insufficient. Defendant notes, for example, that footprints 1 found at the scene did not match any shoes belonging to Flores and fingerprints 2 found on shell casings did not match Flores' fingerprints. However, to accept 3 Defendant's argument would invade the province of the jury, which we cannot do. 4 See Chavez, 2024-NMSC-023, ¶ 40 (stating that we will not reweigh the evidence 5 or substitute our judgment for that of the jury); Rojo, 1999-NMSC-001, ¶ 19 6 ("[E]vidence supporting acquittal does not provide a basis for reversal because the 7 jury is free to reject [the d]efendant's version of the facts."). Accordingly, we 8 conclude that Defendant's conviction of first-degree murder is supported by 9 sufficient evidence. 10

D. The First Amendment Affords a Right of Access to Criminal Trials to the 11

General Public and the Press 12

{64} On the third day of trial, the district court judge confirmed the State's 13

"understanding" that notetaking by trial observers is generally forbidden. Then, 14 having been alerted by the State that there was a woman taking notes in the back of 15 the courtroom, the judge instructed the woman to surrender her notes. Nothing in the 16 record demonstrates that she interfered with or disrupted the proceedings in any way. 17

{65} Defense counsel argued that observers may take notes at a public trial. 18 Defense counsel identified the notetaker as a family friend of Defendant, the sister 19 of a local attorney, and the only guest observer allowed to Defendant during her 20

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COVID-19-era trial. On appeal, Defendant argues that the ban on notetaking was 1 tantamount to an unjustified "partial closure of the courtroom" that "violated her 2 right to public trial," warranting reversal. 3

{66} Defendant has the right to a public trial under the Sixth Amendment to the 4 United States Constitution, Gannett Co. Inc. v. DePasquale, 443 U.S. 368, 379-80 5 (1979), and New Mexico has an established test to determine whether a closure 6 violates that right, State v. Turrietta, 2013-NMSC-036, ¶ 19, 308 P.3d 964. But, 7 because we have already granted Defendant a new trial, we decline to reach her 8 argument on this issue. 9

{67} Defendant, however, is not the only party with a constitutional interest in the 10 public nature of a criminal trial. "[T]he press and general public have a constitutional 11 right" to access criminal trials. Globe Newspaper Co. v. Superior Ct. for Cnty. of 12 Norfolk, 457 U.S. 596, 603 (1982). The right to access criminal trials "is embodied 13 in the First Amendment." Id. We are compelled to discuss this issue based on the 14 actions of the district court judge. 15

{68} The First Amendment to the United States Constitution, of course, protects 16 freedom of expression. But not just that. The First Amendment "has a structural role 17 to play in securing and fostering our republican system of self-government". 18 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587 (1980) (Brennan, J., 19

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concurring in judgment) (emphasis in original). This structural role reflects "not only 1 the principle that debate on public issues should be uninhibited, robust, and wide-2 open but also the antecedent assumption that valuable public debate . . . must be 3 informed." Id. (internal quotation marks and citation omitted); see also Globe 4 Newspaper, 457 U.S. at 603 ("[T]he First Amendment serves to ensure that the 5 individual citizen can effectively participate in and contribute to our republican 6 system of self-government."). 7

{69} The constitutional guarantee of open trials has two important functions. 8

"Open trials . . . assure the criminal defendant a fair and accurate adjudication." 9 Richmond Newspapers, 448 U.S. at 593 (Brennan, J., concurring in judgment). But 10 in addition, and importantly, open trials "serve[] other, broadly political, interests" 11 by allowing the public to keep watch over the justice system itself. See id. at 594, 12 596 (Brennan, J., concurring in judgment). "[J]udges bear responsibility for the 13 vitally important task of construing and securing constitutional rights." Id. at 595 14 (Brennan, J., concurring in judgment). And "court rulings impose official and 15 practical consequences upon members of society at large." Id. (Brennan, J., 16 concurring in judgment) "Under our system, judges are not mere umpires, but, in 17 their own sphere, lawmakers—a coordinate branch of government." Id. at 595-96 18 (Brennan, J., concurring in judgment). The trial—as a "genuine governmental 19

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proceeding"—"plays a pivotal role in the entire judicial process, and, by extension, 1 in our form of government." Id. at 595-96 (Brennan, J., concurring in judgment). 2

{70} "It follows that the conduct of the trial is pre-eminently a matter of public 3 interest." Id. at 596 (Brennan, J., concurring in judgment). And open trials are "akin 4 in purpose to the other checks and balances that infuse our system of government." 5 Id. (Brennan, J., concurring in judgment); see also In re Oliver, 333 U.S. 257, 270 6 (1948) ("The knowledge that every criminal trial is subject to contemporaneous 7 review in the forum of public opinion is an effective restraint on possible abuse of 8 judicial power."). "'Without publicity, all other checks are insufficient: in 9 comparison of publicity, all other checks are of small account.'" In re Oliver, 333 10 U.S. at 271 (quoting 1 Jeremy Bentham, Rationale of Judicial Evidence 524 (1827)). 11

"Open trials assure the public that . . . justice is afforded equally." Richmond 12 Newspapers, 448 U.S. at 595 (Brennan, J., concurring in judgment); see also Globe 13 Newspaper, 457 U.S. at 606 ("[P]ublic access to the criminal trial fosters an 14 appearance of fairness, thereby heightening public respect for the judicial process."). 15

{71} Secrecy, on the other hand, "is profoundly inimical to" to demonstrating "the 16 fairness of the law to our citizens." Richmond Newspapers, 488 U.S. at 594-95 17 (Brennan, J., concurring in judgment). "Closed trials breed suspicion of prejudice 18 and arbitrariness, which in turn spawns disrespect for law." Id. at 595 (Brennan, J., 19

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concurring in judgment). And closed trials are deeply contrary to historical practice: 1 the United States Supreme Court was unable to find a single instance of an in camera 2 criminal trial in any federal, state, or municipal court in our country's entire history. 3 See Globe Newspaper Co., 457 U.S. at 605. 4

{72} In sum, "a right of access to criminal trials . . . is properly afforded protection 5 by the First Amendment." Id. at 605-06 (emphasis in original). "Where . . . the [s]tate 6 attempts to deny the right of access in order to inhibit the disclosure of sensitive 7 information, it must be shown that the denial is necessitated by a compelling 8 governmental interest, and is narrowly tailored to serve that interest." Id. at 606-07. 9 In this case, the district court wrongly construed notetaking by a member of the 10 public as a problematic rather than protected activity, compelling us to issue this 11 reproach. Prohibiting handwritten notes during court sessions restricts the public's 12 and press's rights of access, distancing the judicial process from public scrutiny and 13 weakening the opportunity for informed discussions on judicial matters. See Craig 14

v. Harney, 331 U.S. 367, 374 (1947) ("There is no special perquisite of the judiciary 15 which enables it, as distinguished from other institutions of democratic government, 16 to suppress, edit, or censor events which transpire in proceedings before it."). 17

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