State v. Anaya
| Decision Date | 04 October 2022 |
| Docket Number | A-1-CA-39331 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. CHERRY ANAYA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Fred Van Soelen District Judge.
Hector H. Balderas, Attorney General Laurie Blevins, NM for Appellee.
Bennett J. Baur, Chief Public Defender Santa Fe, NM Steven J Forsberg, Assistant Appellate Defender for Appellant.
{¶1} Defendant Cherry Anaya appeals her convictions for armed robbery and conspiracy to commit armed robbery, contrary to NMSA 1978, Section 30-16-2 (1973) and NMSA 1978, Section 30-28-2 (1979).[1] Defendant argues that (1) the victim's in-court identification of Defendant was unduly suggestive, and (2) she received ineffective assistance of counsel. We affirm.
{¶2} Defendant asserts that the in-court identification in this case was unduly suggestive and therefore unconstitutional. Defendant further asserts that the in-court identification "was the only evidence linking [her] to the robbery, and absent that evidence, there are grave doubts concerning the validity of the robbery verdicts." We initially reject the latter assertion in light of the significant circumstantial evidence presented by the State linking Defendant to the robbery. This evidence includes: (1) video showing a gold Nissan parking beside the victim's car before she was robbed at gunpoint by a passenger in the gold Nissan; (2) video of Defendant driving the gold Nissan through a McDonald's drive-through an hour after the robbery at the same time the victim's credit card was used to purchase food at McDonald's; (3) testimony from two police officers positively identifying Defendant as the driver of the gold Nissan in the McDonald's video; (4) video of Defendant driving the gold Nissan through the drive-through lane at KC Express shortly after the McDonald's video was taken, and at the same time that the victim's credit card was used to purchase cigarettes at KC Express; (5) testimony from the clerk working for KC Express at the time of the transaction, who positively identified Defendant as the driver of the gold Nissan in the video who purchased cigarettes; and (6) testimony that Defendant was driving the gold Nissan and had the keys to that vehicle at the time she was arrested two months later. Cf. State v. Milton, 1974-NMCA-094, ¶¶ 2-3, 86 N.M. 639, 526 P.2d 436 (circumstantial evidence that the defendant drove away from the robbery sufficiently supported his conviction despite his claim that the pretrial identification was impermissibly suggestive); City of Raton v. Cowan, 1960-NMSC-120, ¶¶ 2, 10, 67 N.M. 463, 357 P.2d 52 ().[2]
{¶3} On the primary issue of the in-court identification, the State points out that defense counsel was the one to first elicit the in-court identification during cross- examination of the victim and, therefore, Defendant invited the error she now complains of. State v. Jim, 2014-NMCA-089, ¶ 22, 332 P.3d 870 (). Defendant acknowledges that her counsel initially solicited the identification during trial, but nevertheless asks us to review the matter for "fundamental and plain error." However, it is well settled that "[t]he doctrine of fundamental error cannot be invoked to remedy the defendant's own invited mistakes." State v. Campos, 1996-NMSC-043, ¶ 47, 122 N.M. 148, 921 P.2d 1266, abrogated on other grounds as stated in State v. Groves, 2021-NMSC-003, 478 P.3d 915; see also State v. Handa, 1995-NMCA-042, ¶ 35, 120 N.M. 38, 897 P.2d 225 ().
{¶4} We also reject Defendant's assertion that she was compelled to elicit the identification because "[a] lay jury may well reason that [Defendant] must be the person the witness was talking about or otherwise [Defendant] would not be in the defendant's seat." As our Supreme Court noted in State v. Ramirez, 2018-NMSC-003, ¶¶ 34-35, 409 P.3d 902, other constitutional safeguards were available to protect Defendant from any suggestiveness arising from her seat position in the courtroom. Those safeguards include "the right to have a jury evaluate the testimony of witnesses, the right to confront eyewitnesses, the right to effective assistance of an attorney who can expose the flaws of the eyewitness testimony on cross-examination[,] . . . the right to present testimony about the unreliability of eyewitness identification made under certain circumstances, and the requirement that the state prove guilt beyond reasonable doubt." Id. ¶ 35. Defense counsel used a number of these tools during his cross-examination of the victim, and on appeal, Defendant has not explained how eliciting the in-court identification from the victim would counter the suggestiveness she complains of. See id. ¶ 34 (); see also State v. Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 ( that appellate courts are under no obligation to review unclear or undeveloped arguments).
{¶5} While the invited error doctrine disposes of the matter, we briefly note two additional points that preclude our consideration of Defendant's substantive arguments. First, to the extent Defendant claims that Ramirez should be overturned insofar as it only provides a remedy for identifications tainted by improper law enforcement influence, we are not an appropriate audience for that argument because this Court is not at liberty to overrule precedents of our Supreme Court. See State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, ¶ 22, 135 N.M. 375, 89 P.3d 47 (). Second, Defendant did not raise her concerns about the reach of Ramirez at trial, and therefore failed to preserve the arguments she now makes on appeal. See State v. Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 . The same is true for her argument that the New Mexico Constitution provides broader protections than its federal counterpart. See State v. Gomez, 1997-NMSC-006, ¶ 23, 122 N.M. 777, 932 P.2d 1 .
{¶6} For all of these reasons, we decline to reverse Defendant's convictions based on her claim that an improper in-court identification tainted the verdict.
{¶7} Defendant argues that she received ineffective assistance of counsel because her attorney failed to file a pretrial motion to suppress the in-court identification. "To establish ineffective assistance of counsel, a defendant must show: (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense." State v. Astorga, 2015-NMSC-007, ¶ 17, 343 P.3d 1245 (internal quotation marks and citation omitted). Defense counsel's performance is deficient if it falls "below an objective standard of reasonableness." Id. ¶ 18 (internal quotation marks and citation omitted). "We indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances,...
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