State v. Howl

• Decision Date: 14 July 2016
• Docket Number: NO. 34,033,34,033
• Citation: 381 P.3d 684
• Parties: State of New Mexico, Plaintiff–Appellee, v. David Howl, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

381 P.3d 684

State of New Mexico, Plaintiff–Appellee,

v.David Howl, Defendant–Appellant.

NO. 34,033

Court of Appeals of New Mexico.

Filing Date: July 14, 2016

Certiorari Denied, September 12, 2016, No. S-1-SC-36038

Hector H. Balderas, Attorney General, Santa Fe, NM, Elizabeth Ashton, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

WECHSLER

, Judge.

{1} Defendant David Howl was convicted in a jury trial of possession of a controlled substance, contrary to NMSA 1978, Section 30–31–23 (2011)

; possession of drug paraphernalia, contrary to NMSA 1978, Section 30–31–25.1(A) (2001) ; failure to maintain traffic lane, contrary to NMSA 1978, Section 66–7–317 (1978) ; and no proof of insurance, contrary to NMSA 1978, Section 66–5–229(C) (1998).

{2} Defendant argues on appeal that (1) insufficient evidence supported his convictions for possession of a controlled substance and possession of drug paraphernalia, (2) the district court's exclusion of certain testimony violated his constitutional right to present a defense, (3) evidence was improperly admitted, and (4) ineffective assistance of counsel prejudiced his defense. In its answer brief, the State argues that Defendant's failure to make a prima facie case of ineffective assistance of counsel requires that Defendant request relief in a habeas corpus proceeding.

{3} Defendant has made a prima facie case of ineffective assistance of counsel based upon his trial counsel's failure to move to suppress inculpatory evidence. Therefore, we remand for a hearing on Defendant's ineffective assistance of counsel claim and any further proceedings necessitated by the district court's determination on that issue. Because Defendant has made a prima facie case of ineffective assistance of counsel, we decline to accept the State's habeas corpus argument. In the interest of judicial economy, we also conclude that, should the result of Defendant's ineffective assistance of counsel hearing be unfavorable to him, (1) sufficient evidence supports Defendant's convictions for possession of a controlled substance and possession of drug paraphernalia and (2) neither of Defendant's evidentiary arguments requires reversal.

{4} Defendant further argues that a clerical error in the district court's amended judgment, sentence, and order determining habitual offender status (sentencing order) resulted in exposure to a longer sentence than that imposed at Defendant's sentencing hearing. We disagree and deny Defendant's request for resentencing.

BACKGROUND

{5} At approximately midnight on February 3, 2012, Defendant was driving his pickup truck east on 14th Street in Clovis, New Mexico. He was accompanied by a female passenger. At the same time, New Mexico State Police Officer Noe Alvarado was on patrol in Clovis and observed Defendant's vehicle cross the center line near the intersection of 14th Street and Hinkle Street. Officer Alvarado initiated a traffic stop and requested that Defendant provide his driver's license and vehicle information. When Defendant only produced his driver's license, Officer Alvarado requested that Defendant step out of the vehicle. Officer Alvarado and Defendant walked to the front of the patrol vehicle. Officer Alvarado conducted a warrant check, which came back negative. Officer Alvarado then walked back to Defendant's vehicle and requested that the passenger look for the insurance and registration documents for the vehicle. The passenger complied by opening the center console. When she did so, Officer Alvarado observed a glass pipe similar to those used to ingest methamphetamine. Officer Alvarado requested that the passenger exit the vehicle and, following a brief discussion, allowed her to depart. Officer Alvarado placed Defendant under arrest for possession of drug paraphernalia. Officer Alvarado then removed a pack of cigarettes from Defendant's shirt pocket. While handling the cigarettes, Officer Alvarado noticed a clear plastic bag containing a crystallized substance. Subsequent laboratory testing revealed that the substance was methamphetamine.

{6} Defendant's jury trial was conducted on March 27, 2014. Defendant's trial counsel did not file a motion to suppress the paraphernalia or drugs seized by Officer Alvarado or object to the admission of this evidence. Defendant's trial counsel instead moved for a directed verdict as to the possession of drug paraphernalia charge, arguing that the State failed to make a prima facie case that Defendant possessed the pipe. Defendant's trial counsel also argued that, because the discovery of the methamphetamine resulted from a post-arrest search, the possession of a controlled substance charge should be dismissed. The district court denied these motions.

{7} Against the advice of counsel, Defendant testified on his own behalf. In doing so, Defendant hoped to relay certain information to the jury including that (1) his passenger was in control of his cigarettes, soda, and cell phone while he was driving; (2) he submitted a clean urine sample at the Curry County Adult Detention Center after his arrest; and (3) he is physically unable to use the pipe at issue. Defendant's trial counsel initially declined to engage Defendant in these areas based upon her belief that doing so would subject Defendant to expansive questioning by the State. While in recess and outside the presence of the jury, a discussion took place during which the district court considered Defendant's ability, under the rules of evidence, to offer additional testimony on the three topics. The district court allowed Defendant to resume his testimony but refused to allow Defendant to discuss his urinalysis results, stating, “I won't allow anything about ... what prior convictions you've had[.]”

{8} Defendant was convicted of all charges. This appeal resulted.

INEFFECTIVE ASSISTANCE OF COUNSEL

{9} A criminal defendant's right to effective assistance of counsel is guaranteed by the Sixth Amendment to the United States Constitution. State v. Mosley , 2014–NMCA–094, ¶ 18, 335 P.3d 244

. Defendant argues that his trial counsel's failure to move to suppress the pipe and methamphetamine on the grounds that Officer Alvarado conducted an illegal search constituted ineffective assistance of counsel. We review Defendant's claim of ineffective assistance of counsel de novo. State v. Dylan J. , 2009–NMCA–027, ¶ 33, 145 N.M. 719, 204 P.3d 44.

{10} A defendant is entitled to an evidentiary hearing on his or her ineffective assistance claim “only when the record on appeal establishes a prima facie case of ineffective assistance of counsel.” State v. Herrera , 2001–NMCA–073, ¶ 35, 131 N.M. 22, 33 P.3d 22

. A defendant makes a prima facie case of ineffective assistance of counsel by showing “(1) that defense counsel's performance fell below the standard of a reasonably competent attorney, and (2) that due to the deficient performance, the defense was prejudiced.” Mosley , 2014–NMCA–094, ¶ 19, 335 P.3d 244 (alteration, internal quotation marks, and citation omitted). We refer to the prongs of this test as “the reasonableness prong and the prejudice prong.” Patterson v. LeMaster , 2001–NMSC–013, ¶ 17, 130 N.M. 179, 21 P.3d 1032.

The Reasonableness Prong

{11} When a defendant's ineffective assistance of counsel claim is based upon trial counsel's failure to move to suppress evidence, he or she “must establish that the facts support the motion to suppress and that a reasonably competent attorney could not have decided that such a motion was unwarranted.”

Mosley , 2014–NMCA–094, ¶ 20, 335 P.3d 244

(internal quotation marks and citation omitted).

{12} Defendant argues that, once Officer Alvarado removed him from the vehicle, additional efforts to locate the insurance and registration documents within the vehicle constituted an illegal search. This legal argument requires analysis under our search and seizure jurisprudence.

{13} As discussed above, after initiating a traffic stop, Officer Alvarado requested that Defendant provide his driver's license, registration, and proof of insurance. When Defendant only provided his driver's licence, Officer Alvarado requested that Defendant exit the vehicle. After several minutes, Officer Alvarado returned to Defendant's vehicle and requested that the passenger look for the insurance and registration documents for the vehicle. The passenger then opened the center console, revealing the methamphetamine pipe inside. Defendant was not under arrest at the time when Officer Alvarado returned to Defendant's vehicle.

{14} The State argues on appeal that Officer Alvarado's conduct did not constitute a search because drivers do not have a reasonable expectation of privacy in insurance and registration documents. See State v. Reynolds , 1995–NMSC–008, ¶ 12, 119 N.M. 383, 890 P.2d 1315

(“[I]ndividuals have no legitimate subjective expectation of privacy in their license, registration, or insurance documents when they are operating a motor vehicle and an officer requests to see such documents.”). The State's argument expands Reynolds beyond its intended meaning in that, regardless of a law enforcement officer's right to request insurance and registration documents, the owner of a vehicle has a reasonable expectation of privacy within the interior of the vehicle. See

New York v. Class , 475 U.S. 106, 114–15, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (“[A] car's interior as a whole is nonetheless subject to Fourth Amendment protection from unreasonable intrusions by the police.”); State v. Van Dang , 2005–NMSC–033, ¶ 7, 138 N.M. 408, 120 P.3d 830 (“Generally, one who owns, controls, or lawfully possesses property has a legitimate expectation of privacy.”). Given this reasonable expectation of privacy, Defendant's failure to produce the insurance and registration documents for the vehicle did not entitle Officer Alvarado to search the closed center...