¶1(dissenting).
¶2I respectfully dissent.
¶3The majority is reversing defendant’s conviction on two grounds: (1) improper comments made by the prosecution pertaining to defendant’s silence; and (2) denial of defendant’s right to a fair trial because of cumulative error.
¶4The majority, relying on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), concludes that the prosecutor’s questions regarding whether defendant told anyone, before the trial, that she had shot the decedent was an improper line of questioning, and therefore constitutionally impermissible. In Doyle, the U.S. Supreme Court held that the use for impeachment purposes of the defendant’s silence, at the time of arrest, and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. 426 U.S. at 619, 96 S.Ct. at 2245. In Hale, the Supreme Court held that the defendant’s silence during police interrogation lacked significant probative value and under the circumstances of that case any reference to defendant’s silence carried with it an intolerably prejudicial impact. These factual situations are quite different from the present case, in which the prosecutor’s question referred to defendant’s failure to tell family members that she shot her husband and did not refer to any silence “at the time of arrest” as in Doyle or any silence “during police interrogation” as in Hale. The Supreme Court in both the Doyle and Hale cases specifically limited the holdings to “at the time of arrest” or “during police interrogation”; therefore, the majority’s rationale is inapplicable to the factual situation in the present case.
¶5Furthermore, the majority notes that “the important determination to be made on this issue is whether the silence has any probative value.” Noting that the difference between this case and Hale and Doyle is that defendant “did not tell either her daughters or the police what had happened,” the majority acknowledge that “[t]here is some probative value in defendant’s silence because it is more likely that a suspect in a crime will tell family members, as opposed to police, about the surrounding circumstances of the act.” The majority places too little value on the probative aspects of this silence; it is significant and material.
¶6It is important to note that through this line of questioning, the State was seeking to show that the defendant’s claim of self-defense was a fabrication. Furthermore, the defendant’s claim of self-defense was not made known until the sixth day of trial, during defense counsel’s opening statement. Certainly, the issue of the defendant’s silence regarding her role in the killing became significant at this point due to the potential for recent fabrication. Evidence was presented that the defendant had stated on an insurance claim form that the decedent was shot by unknown assailants. The defendant was either not telling the truth about the unknown assailants or her self-defense position was a fabrication. The defendant’s silence relating to both of these positions therefore had significant probative value, and the prosecutor was entitled to enquire accordingly. It is error for the majority to reverse on this ground. The State’s questions regarding the defendant’s silence had no prejudicial impact requiring reversal due to the significant probative value of the questions.
¶7In discussing defendant’s failure to disclose that she had shot the decedent, the majority, without support, states that “[djefendant is not required to reveal her theory of defense to the prosecution before trial and any inference that she should have done so is highly improper.” This statement is erroneous and misleading. There are well recognized exceptions to this statement found in the Rules of Criminal Procedure. For example, a notice of alibi is required by NMSA 1978, Crim.P. Rule 32 (Repl.Pamp.1980), and a notice of an insanity defense is required by NMSA 1978, Crim.P.Rule 35 (Cum.Supp.1983).
¶8Moreover, taking as correct the majority’s statement regarding the revealing of defendant’s theory of defense, the fact remains that the defendant is still required to comply with NMSA 1978, Crim.P.Rule 28 (Cum.Supp.1983), just as the State is required to comply with NMSA 1978, Crim.P. Rule 27 (Cum.Supp.1983), and which in the normal course of events alerts each side to the other side’s probable positions or defenses. Rule 28 requires that the evidence and witnesses of the defendant be disclosed to the State within thirty days after arraignment or filing of a waiver of arraignment or not less than ten days before trial, whichever date occurs earlier. The Rules of Criminal Procedure provide for reciprocal discovery rights and are intended to provide ample opportunity for investigation of facts. See Crim.P.Rule 27 (Cum.Supp. 1983); State v. Smith, 88 N.M. 541, 543 P.2d 834 (Ct.App.1975).
¶9In the present case, the defendant failed to comply with Rule 28 by not timely disclosing evidence or witnesses to the State. The physician who testified on defendant’s behalf as to scars from the alleged abuse done by decedent did not examine defendant until after three and one-half days of the State’s case. The name of a psychologist who was defendant’s primary expert witness and who examined defendant prior to trial was made known to the State approximately seven days before trial. Moreover, when the State contacted the psychologist prior to trial, he had not completed his evaluation, making it impossible for the State to prepare for his testimony. None of the test results from his examination were ever made available to the State. Furthermore, these violations of Rule 28 in failing to timely disclose evidence and names of witnesses could properly have supported the State’s theory that defendant had prepared her case at the last minute which was possibly due to the recent fabrication of the self-defense claim. The State could properly impeach defendant as to the State’s contention that the self-defense claim was a recent fabrication.
¶10The majority also reverses defendant’s conviction because cumulative error denied defendant her right to a fair trial. The majority in this case has elevated non-prejudicial matters to a standard of cumulative error. The cumulative error doctrine states that we must consider the cumulative impact of the alleged items of misconduct and only where it is shown that an accumulation of irregularities, each of which in itself might be deemed harmless, in the aggregate, show the absence of a fair trial can a defendant’s conviction be reversed. State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974). The doctrine of cumulative error is to be strictly applied. State v. Hamilton, 89 N.M. 746, 557 P.2d 1095 (1976). If the record demonstrates that defendant received a fair trial, the doctrine cannot be invoked. State v. Victorian, 84 N.M. 491, 505 P.2d 436 (1973). The defendant did receive a fair trial.
¶11The majority first asserts that evidence of prior abuse of defendant by her ex-husband, Esquibel, is probative because it tends to support the State’s claim that it gave defendant special knowledge which would be useful in fabricating a claim of abuse by decedent. However, the majority holds that it was error for the court to admit evidence of Esquibel’s prior criminal history and drug use, stating that it has no probative value in relation to defendant’s actions toward decedent. This type of evidence was not relevant to show the kind of person Esquibel was, but was relevant to show the type of person the defendant associated with, had dealings with, and even married. Another purpose for asking such questions was to show that although defendant was married to Esquibel for seven and one-half years, and had three children with him, she had no trouble in making up her mind to divorce him. Defendant testified that decedent was much worse, however, testimony from defendant’s own witnesses indicated that she was having difficulty in deciding to divorce decedent and, in fact, wanted him to come back to her. The State properly attempted to show that if defendant’s testimony were true regarding the alleged abuse, it would be unlikely that she would have trouble making up her mind to divorce decedent in light of the fact that she had no difficulty in divorcing Esquibel. The State had the right to prove the guilt of defendant by any relevant fact. See State v. Allen, 91 N.M. 759, 581 P.2d 22 (Ct.App.), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978). The evidence was relevant; there was no error in its admission.
¶12The majority next holds that it was an improper limitation on defendant’s right to present evidence after sexually explicit films had been admitted into evidence and were not shown to the jury. The films were passed to the jury so that they could see the representative photographs on the covers. The trial court stated that it was not going to require that the films be shown, but indicated that the jury was free to view the films if they desired.
¶13This was a proper ruling on the part of the trial court. We recognize that the determination of relevancy, as well as materiality, rests largely within the discretion of the trial court. Wilson v. Hayner, 98 N.M. 514, 650 P.2d 36 (Ct.App.1982). However, the trial court cannot interfere and tell the jury how to consider the evidence. The amount of time to be spent in deliberation and with what evidence is a matter for the jury to determine. See State v. Mosier, 83 N.M. 213, 490 P.2d 471 (Ct.App.1971). Similarly, it is for the jury to determine the weight and credibility of the evidence. There was no error shown in this regard in the present case. The jury was allowed to decide whether it wanted to view the contents of the evidence. This type of decision is made by juries every day. It was not necessary for the jury to look at each frame of film to know the contents. The jury knew what the films were and had the opportunity to consider them in their deliberations. Had the jury needed or wanted additional information about the films, it was available for the asking. The trial court fulfilled its duty by making the films available to the jury.
¶14The fundamental issue in this case is whether the defendant received a fair trial. This case is not one in which an accumulation of irregularities exists. The defendant received a fair trial. Her conviction should be affirmed.