State v. Chavez
| Decision Date | 23 December 2015 |
| Docket Number | NO. 33,095,33,095 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL CHAVEZ, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
Margaret McLean, Assistant Attorney General
Olga Serafimova, Assistant Attorney General
for Appellee
The Appellate Law Office of Scott M. Davidson
Scott M. Davidson
Albuquerque, NM
for Appellant
{1} Defendant makes multiple assertions of ineffective assistance of counsel. For lack of a sufficient factual basis, he does not make a prima facie showing of ineffective assistance. We therefore decline to reverse and deem those assertions to be better suited for resolution through a habeas proceeding. Defendant also asserts that the district court abused its discretion by refusing to exclude one of the State's witnesses. We hold that the district court did not abuse its discretion by refusing to strike Officer Lopez's testimony because the requirements for exclusion under State v. Harper, 2011-NMSC-044, ¶ 21, 150 N.M. 745, 266 P.3d 25, were not met. We further hold that the district court properly denied Defendant's requested instruction on eyewitness identification, because the instruction that Defendant tendered was cumulative to the witness credibility and reasonable doubt instructions that the court administered. We affirm Defendant's conviction.
{2} Matthew Garcia was walking home from work on the evening of May 11, 2010, when he was attacked from behind. The assailant punched and kicked Garcia, threatened him verbally, and took Garcia's backpack. The assailant's face was covered during the entire altercation. The police were called to the scene. After paramedics treated Garcia's injuries, he returned home. Approximately fifteen minutes later, two officers brought Garcia from his home to a street near the altercation where Michael Chavez (Defendant) was being detained as part of a traffic stop. Garcia identifiedDefendant as the man who had attacked him and stolen his backpack. Officer Lopez retrieved Garcia's backpack from the passenger's side of Defendant's vehicle, and after Garcia filled out a report, Officer Lopez returned the backpack to Garcia.
{3} A grand jury indicted Defendant on charges of robbery and conspiracy to commit robbery. Defense counsel filed a motion to suppress Garcia's show-up identification—three calendar days before the trial was scheduled to begin. After hearing the arguments from both parties regarding the motion, the district court struck the motion to suppress as untimely. Defense counsel also filed a motion in limine, seeking, among other things, to exclude Officer Lopez's testimony. The district court ruled on the motion in limine, as the parties stipulated to many of the issues presented in the motion in limine, and ultimately allowed Officer Lopez to testify. After a jury trial, Defendant was convicted of both charges. Defendant was sentenced, and he appealed to this Court. We limit our recitation of the facts here, and provide additional detail as each issue is discussed below.
{4} We review claims of ineffective assistance of counsel de novo. State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44. "When an ineffective assistance claim is first raised on direct appeal, we evaluate the facts that are part of the record." State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. Indoing so, "we review the entire proceeding and consider the totality of the evidence presented." State v. Martinez, 2007-NMCA-160, ¶ 21, 143 N.M. 96, 173 P.3d 18.
{5} "If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition, although an appellate court may remand a case for an evidentiary hearing if the defendant makes a prima facie case of ineffective assistance." Roybal, 2002-NMSC-027, ¶ 19. Habeas corpus proceedings, under Rule 5-802 NMRA, are the preferred avenue for adjudicating ineffective assistance of counsel claims where the record on appeal does not establish a prima facie case of ineffective assistance of counsel. See, e.g., State v. Hosteen, 1996-NMCA-084, ¶ 6, 122 N.M. 228, 923 P.2d 595, aff'd on other grounds 1997-NMSC-063, ¶ 8, 124 N.M. 402, 951 P.2d 619; Dylan J., 2009-NMCA-027, ¶ 41. This preference is based on the need for a fully developed record; the record before the district court may not contain the evidence necessary for a determination on counsel's effectiveness, as " 'conviction proceedings focus on the defendant's misconduct rather than that of his attorney.' " Id. (quoting Duncan v. Kerby, 1993-NMSC-011, ¶ 4, 115 N.M. 344, 851 P.2d 466). Because of the preference for habeas proceedings in ineffective assistance claims, " 'a record on appeal that provides a basis for remanding to the district court for an evidentiary hearing on ineffective assistance of counsel is rare.' " State v. Allen, 2014-NMCA-047, ¶ 16, 323 P.3d 925 (quoting State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776) (alterations omitted)).
{6} In order to make a prima facie showing of ineffective assistance of counsel that warrants remand, Defendant must show that "(1) it appears from the record that counsel acted unreasonably; (2) the appellate court cannot think of a plausible, rational strategy or tactic to explain counsel's conduct; and (3) the actions of counsel are prejudicial." State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (internal quotation marks and citation omitted). This follows the two-prong test for proving ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984); Roybal, 2002-NMSC-027, ¶ 19. We presume counsel is competent. State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. In order to overcome that presumption, a defendant bears the burden of proving both prongs of the Strickland test. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. Counsel's actions are not unreasonable " 'if there is a plausible, rational strategy or tactic to explain the counsel's conduct.' " State v. Ortega, 2014-NMSC-017, ¶ 55, 327 P.3d 1076 (quoting Lytle v. Jordan, 2001-NMSC-016, ¶ 26, 130 N.M. 198, 22 P.3d 666). "[W]e will not second guess the trial strategy and tactics of the defense counsel." Ortega, 2013-NMSC-017, ¶ 56 (internal quotation marks and citation omitted). In order to prove prejudice, the defendant must show that Lytle, 2001-NMSC-016, ¶ 27 (internal quotation marks and citation omitted).
{7} We note that with regard to the prejudice prong of the ineffective assistance test, Defendant urges us to consider the approach adopted in Alaska, Oregon, and Hawaii. Defendant spends a considerable amount of his brief explaining the prejudice standards used by these other states, but does not offer any authority allowing us to abandon the long-standing precedent set forth by our Supreme Court in Hester, 1999-NMSC-020, ¶ 9, requiring that we follow the Strickland test for claims of ineffective assistance of counsel. See State v. Travarez, 1983-NMCA-003, ¶ 5, 99 N.M. 309, 657 P.2d 636 (). We decline to address Defendant's proffer of out-of-state precedent to support his position. See Santa Fe Expl. Co. v. Oil Conservation Comm'n, 1992-NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819 ().
{8} Defendant acknowledges that defense counsel's motion to suppress Garcia's show-up identification of Defendant was untimely. See Rule 5-212(C) NMRA (2012) (); City of Santa Fe v. Marquez, 2012-NMSC-031, ¶ 25-26, 285 P.3d 637 (). Defendant asserts that his right to counsel was violated because the failure to timely file the motion constitutes an unauthorized waiver of his right to challenge an unconstitutional show-up identification. We equate counsel's untimely filing of a motion to suppress to a failure to file the motion at all, as the functional effect in both situations is that the matter is not properly brought before the district court. Thus, Defendant must show that the facts supported a motion to suppress and that a reasonably competent attorney could not have decided that the motion was unnecessary to satisfy the reasonableness prong of ineffective assistance. Patterson v. LeMaster, 2001-NMSC-013, ¶ 19, 130 N.M. 179, 21 P.3d 1032; but see State v. Roberts, 2015 WL 3750174, No. 33,285, mem. op. ¶ 14 (). In order to satisfy the prejudice prong, Defendant must show that, had the district court suppressed the show-up identification, there is a reasonable probability he would not have been convicted. Lytle, 2001-NMSC-016, ¶ 27; State v. Padilla, 1996-N...
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