1998 -NMCA- 180, State v. Cooper

• Decision Date: 27 October 1998
• Docket Number: No. 18506,18506
• Citation: 972 P.2d 1,126 N.M. 500,1998 NMCA 180
• Parties: , 1998 -NMCA- 180 STATE of New Mexico, Plaintiff-Appellee, v. Willie Marcell COOPER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1

972 P.2d 1

126 N.M. 500, 1998 -NMCA- 180

STATE of New Mexico, Plaintiff-Appellee, v. Willie Marcell COOPER, Defendant-Appellant.

No. 18506.

Court of Appeals of New Mexico.

Oct. 27, 1998.

Certiorari Denied Dec. 15, 1998.

Tom Udall, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, for Appellant.

OPINION

ARMIJO, Judge.

¶1 Defendant appeals his conviction for one count of trafficking in cocaine contrary to NMSA 1978, Section 30-31-20(A)(1990). He raises two issues on appeal. The first issue presents us with an opportunity to examine the Federal Posse Comitatus Act, 18 U.S.C. § 1385 (1994)(PCA). Defendant claims that trial counsel was ineffective for failing to pursue a motion to suppress evidence based on an alleged violation of the PCA, and, among other claims, his trial counsel's failure to object to testimony regarding the identification of Defendant from an allegedly impermissibly suggestive photo array. The second issue concerns the sufficiency of the evidence supporting Defendant's conviction. Because we hold that Defendant has not made a prima facie showing of ineffective assistance of counsel and that the conviction is supported by sufficient evidence, we affirm.

I. BACKGROUND

¶2 In July 1994, Defendant, a civilian, was arrested for allegedly selling six rocks of crack cocaine to Joseph Tobier (Tobier), a member of the United States Air Force, in a controlled transaction. At the time, Tobier was working as an undercover agent for the Office of Special Investigations (OSI) of the United States Air Force in a joint narcotics investigation with the Metro Drug Task Force of the Clovis Police Department. The investigation targeted suspected cocaine trafficking at 204 1/2 Sheldon (Sheldon residence) in Clovis, New Mexico. The OSI and the Clovis Police Department had information that military members were purchasing crack cocaine at the property.

¶3 Based on the Air Force's involvement in the investigation through undercover agent Tobier, Defendant filed a pretrial motion to suppress evidence he alleged was obtained in violation of the PCA. However, defense counsel abandoned the motion prior to trial, concluding that the "present state of the law" failed to support the motion to suppress. The trial court accordingly dismissed the motion.

¶4 At trial, the State presented the testimony of Tobier and two officers with the Metro Drug Task Force. Sergeant Michael Reeves testified that in July 1994, he was approached by the OSI, and based upon information that members of the United States Air Force were involved in the trafficking and purchasing of crack cocaine in the Clovis area, the OSI and the Metro Drug Task Force "initiated a joint investigation" of the suspected activities. To assist in the investigation, the OSI provided the services of Tobier, an Air Force member, who had been trained by the OSI to be an undercover informant in narcotics investigations. The subject of the investigation was the Sheldon residence, a known crack house, where several arrests had been made in the past.

¶5 Tobier served as an undercover informant in the joint investigation for approximately two years. His participation was strictly voluntary, and he received no compensation for his part in the investigation. While assisting in the investigation, Tobier made at least fifteen to twenty controlled purchases at the Sheldon residence. As an undercover agent, Tobier would "hang out" at the Sheldon residence, become acquainted with suspected cocaine dealers, and give them his cell phone number as a prospective buyer. Upon receiving a call, he would immediately contact the Clovis Police Department and the OSI and obtain further instructions on setting up a controlled buy.

¶6 At trial, Tobier testified that prior to July 21, 1994, he had observed and spoken with Defendant at the Sheldon residence on several occasions. Approximately one week before July 21, 1994, Defendant approached Tobier about a possible drug sale, and the two got into Tobier's vehicle to discuss the details of the transaction and exchange phone numbers.

¶7 On July 21, 1994, Tobier received a call from Defendant on his cell phone. Tobier immediately notified OSI agents and Clovis police officers about the call. At the Metro Drug Task Force office, Tobier briefed the police officers and the OSI agents on his telephone conversation with Defendant. Clovis police officers then instructed Tobier on how to make the controlled purchase, searched Tobier's vehicle, placed a transmitter on him, and provided him with money to purchase the drugs. Tobier then arranged to meet Defendant at the Sheldon residence later that day. Tobier was kept on surveillance by Clovis police officers while he drove to and from the address.

¶8 At the Sheldon residence, Defendant came out to Tobier's vehicle in the driveway and asked him how much crack cocaine he wanted. Tobier responded that he wanted $100 worth. Defendant then left and returned a few minutes later with six rocks of crack cocaine which he showed to Tobier. Tobier then paid Defendant for the crack cocaine, which he wrapped in a piece of paper and put in the ashtray, and returned to the office of the Metro Drug Task Force. Tobier turned over the evidence to agent Jay Longley of the Metro Drug Task Force, and the evidence was then tested by the Department of Public Safety Crime Lab. The parties stipulated to the lab's findings that the substances were in fact cocaine. Upon returning to the military base, Tobier prepared a written report of the undercover operation which he submitted to the OSI; a copy of the report was forwarded to the Clovis Police Department.

¶9 Tobier testified that he was certain that Defendant was the individual who sold him crack on July 21, 1994, and identified Defendant in court. Tobier testified that in identifying individual suspects from the Sheldon residence, he would remember their aliases and keep a "mental picture" of their physical appearance and features. At the Metro Drug Task Force office, he would identify the suspects from a photo array. He would point out the photographs of the individuals he recognized from the Sheldon residence, and only afterwards, when the photographs were turned over, would he see the names of the individuals printed on the back side.

¶10 Defendant was the only witness who testified for the defense. He testified that he did not sell crack cocaine to Tobier on July 21, 1994. Following the trial, the jury returned a guilty verdict against Defendant on one count of trafficking in cocaine. This appeal ensued.

II. DISCUSSION

A. Ineffective Assistance of Counsel

¶11 To prevail on a claim of ineffective assistance of counsel, Defendant " 'must prove that defense counsel did not exercise the skill of a reasonably competent attorney and that this incompetent representation prejudiced the defendant's case, rendering the trial court's results unreliable.' " State v. Crain, 1997-NMCA-101, p 24, 124 N.M. 84, 946 P.2d 1095 (quoting State v. Lopez, 1996-NMSC-036, p 25, 122 N.M. 63, 920 P.2d 1017). Defendant fails to establish a prima facie case of ineffective assistance of counsel where "a plausible, rational strategy or tactic can explain the conduct of defense counsel." State v. Swavola, 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct.App.1992). A reviewing court will not second guess the trial strategy and tactics of defense counsel. Churchman v. Dorsey, 1996-NMSC-033, p 18, 122 N.M. 11, 919 P.2d 1076.

¶1 Failure to Pursue Motion To Suppress Evidence Based On Violation of PCA

¶12 Defendant asserts that defense counsel was ineffective for waiving a motion to suppress evidence seized in alleged violation of the PCA. In determining whether the failure to pursue a motion to suppress constitutes ineffective assistance of counsel, we address: (1) whether the record supports the motion on the ground asserted; and (2) whether a reasonably competent attorney could have decided that the motion was unwarranted. See State v. Martinez, 1996-NMCA-109, p 33, 122 N.M. 476, 927 P.2d 31. In other words, we look to the law and the facts of the case to determine if a reasonably competent attorney could have decided that the motion to suppress was not merited. See State v. Stenz, 109 N.M. 536, 538, 787 P.2d 455, 457 (Ct.App.1990). Applying these standards to the case before us, we conclude that the facts and the law fail to support the suppression of evidence on PCA grounds, and therefore, defense counsel was not ineffective for abandoning the motion to suppress evidence.

¶13 The PCA makes it a criminal offense, "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress," to "willfully" use "any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws[.]" 18 U.S.C. § 1385. Congress passed the PCA in 1878 to restrict the use of military power to enforce civil laws in the South during the Reconstruction Era. See People v. Burden, 411 Mich. 56, 303 N.W.2d 444, 446 (Mich.1981). Following the Civil War, federal troops were frequently called upon to enforce the laws in the former Confederate states and to assert the control over the new governments. See id. Ultimately, the intrusion of federal military troops in the South during the 1876 presidential election led to the passage of the PCA. See id. Thus, underlying the PCA is the continuing recognition of the threat to civil liberties caused by the use of military personnel to execute civilian laws. See generally Annotation, Brian L. Porto, Construction and Application of Posse Comitatus Act (18 USCS § 1385), and Similar Predecessor Provisions, Restricting Use of United States Army and Air Force to Execute Laws, 141 A.L.R. Fed. 271, § 2[a] (1997) (hereinafter Annotation, 141 A.L.R. Fed. 271).

¶14 Modern courts have employed various...