State v. Dirickson
| Docket Number | A-1-CA-39770 |
| Decision Date | 25 May 2023 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. MICHAEL SHAINE DIRICKSON, 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 OTERO COUNTY Angie K. Schneider District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Leland M. Churan, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{¶1} Defendant Michael Dirickson was convicted of possession of methamphetamine, contrary to NMSA 1978, Section 30-31-23(E) (2011, amended 2021). Defendant argues on appeal: (1) his counsel was ineffective for failing to move to suppress evidence; and (2) the evidence presented was insufficient to support his conviction. We affirm.
{¶2} The following facts are based on evidence presented during Defendant's trial. On February 3, 2018, a clerk from a Giant gas station called the Alamogordo Police Department and reported that a man was slumped over in the driver's seat of a vehicle that had been parked in front of the station for multiple hours. Officer Phillip Villarreal responded to the call at approximately 4:00 a.m. in the morning. Upon arriving at the Giant gas station, Officer Villarreal parked his patrol car behind Defendant's vehicle, observed Defendant asleep, and slumped over in the driver's seat. He also noted that Defendant's dog was in the back passenger seat.
{¶3} Officer Villarreal knocked on the driver's side window of the vehicle to awaken and make contact with Defendant. The interaction between Officer Villarreal and Defendant was recorded on the Officer's lapel camera. Upon waking Defendant, Officer Villarreal told Defendant to roll down his window and Defendant responded by opening his door. Officer Villarreal asked Defendant, "What's going on?" to which Defendant replied that he had been waiting for his brother. Officer Villarreal asked Defendant if he needed to be worried about any weapons. Defendant replied that he had a pistol, and pointed to the passenger floorboard of the vehicle. In order to ensure his safety, Officer Villarreal instructed Defendant to step out of the vehicle to separate him from the weapon. After Defendant stepped out of the vehicle, Officer Villarreal asked Defendant to confirm that he did not have the pistol on his person and then asked for identification, which Defendant produced.
{¶4} At this point Officer Villarreal informed Defendant that the store clerk was concerned and had requested the police check on him to ensure that he was not intoxicated or otherwise in distress. Officer Villarreal then called in for a license check, which revealed two active arrest warrants. Defendant was placed in handcuffs and asked if he had anything on his person that the officer needed to be concerned about, such as knives or needles. Defendant replied, "I don't know."
{¶5} Officer Villarreal then conducted a search of Defendant during which he discovered a pistol in the inner pocket of Defendant's jacket and a bag of a white, crystalized substance in the front, left pocket of Defendant's pants. Based on his experience, Officer Villarreal believed the substance in the bag to be methamphetamine. Officer Villarreal sought the opinion of another officer on scene, who had arrived to assist Officer Villarreal at some point during the encounter, and confirmed that the substance looked like methamphetamine. The second officer did not testify at trial. Defendant and the bag of suspected methamphetamine were transported to the police department where the substance was submitted to evidence pending later testing.
{¶6} A forensic scientist with the New Mexico Department of Public Safety, testified that the substance tested positive for methamphetamine. The jury convicted Defendant of possession of methamphetamine. This appeal followed.
{¶7} Defendant argues that Officer Villarreal was not acting as a community caretaker when interacting with him because he failed to ask about Defendant's wellbeing and continued a criminal investigation after he learned Defendant did not need assistance. Because of this, Defendant asserts Officer Villarreal impermissibly seized him when he parked his patrol car behind Defendant's car, woke him, and asked Defendant to get out of the vehicle without reasonable suspicion. Defendant therefore alleges that the evidence used to convict him was obtained unlawfully and should have been suppressed. Defendant makes these arguments under a claim of ineffective assistance of counsel, given his attorney did not file a motion to suppress evidence. We conclude Defendant has failed to establish a prima facie case of ineffective assistance of counsel.
{¶8} As a preliminary matter, we briefly address the State's argument that because Defendant was represented by the Law Offices of the Public Defender during the course of the proceedings below and now on appeal, Defendant must first comply with this Court's order in State v Jones, 1994-NMCA-045, 119 N.M. 53, 888 P.2d 935. In Jones, this Court ordered the appellate public defender for the Law Office of the Public Defender to file a waiver of conflict of interest by a defendant where the appellate public defender argues ineffective assistance of counsel on appeal where counsel below was also a public defender for the Law Office of the Public Defender. Id. The State gives no description of how a conflict exists here, other than to say that a public defender appeared in the case below. The State requested Defendant "file a waiver in this Court, make a showing as to why no conflict exists, or file a motion to have his counsel withdraw."
{¶9} Jones applies when there is a facial conflict between the appellate public defender and the public defender below due to both attorneys working in the same office. See id. Jones does not stand for the principle that a defendant's argument should not be reached on appeal, but rather that the state may move to hold briefing in abeyance until the conflict is resolved. See id. Here, as defense counsel explains, the appellate public defender is now in a different department from trial counsel, eliminating a facial conflict. See NMSA 1978, § 31-15-8(A), (B) (2014) (); cf. Morales v. Bridgforth, 2004-NMSC-034, ¶ 1, 136 N.M. 511, 100 P.3d 668 (). As such, we decline to address the State's argument further.
{¶10} "The Sixth Amendment to the United States Constitution guarantees the right to the effective assistance of counsel." State v. Mosely, 2014-NMCA-094, ¶ 18, 335 P.3d 244. Defendant contends he had a viable suppression issue under Article II, Section 10 of the New Mexico Constitution and that his attorney's failure to move to suppress the methamphetamine on the grounds that he "was seized without reasonable suspicion or pursuant to any exception," rendered his attorney's assistance ineffective. The State contends that the record establishes that the contact between Officer Villarreal and Defendant was a permissible community caretaker encounter and therefore a reasonably competent attorney could have decided that a motion to suppress was not warranted.
{¶11} "We review claims of ineffective assistance of counsel de novo." State v. Pitner, 2016-NMCA-102, ¶ 14, 385 P.3d 665 (internal quotation marks and citation omitted). "[T]here is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Garcia, 2011-NMSC-003, ¶ 33, 149 N.M. 185, 246 P.3d 1057 (internal quotation marks and citation omitted). "In order to establish a prima facie case of ineffective assistance of counsel on direct appeal, a defendant must demonstrate that: (1) counsel's performance fell below that of a reasonably competent attorney; (2) no plausible, rational strategy or tactic explains counsel's conduct; and (3) counsel's apparent failings were prejudicial to the defense." State v. Bahney, 2012-NMCA-039, ¶ 48, 274 P.3d 134. "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.
{¶12} Because the record is frequently insufficient to establish whether an action taken by defense counsel was not reasonable or if an error caused prejudice, ineffective assistance of counsel claims are often better addressed in habeas corpus proceedings. See State v. Arrendondo, 2012-NMSC-013 ¶ 38, 278 P.3d 517. However, if on direct appeal a defendant makes a prima facie case for ineffective assistance of counsel on the basis of facts in the record, an appellate court can remand to the district court for an evidentiary hearing. See State v. Crocco, 2014-NMSC-016, ¶ 14, 327 P.3d 1068. A defendant makes a prima facie case when the defendant produces sufficient evidence to allow the trier of...
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