State v. Martinez

• Decision Date: 28 June 2001
• Docket Number: No. 21,100.,21,100.
• Citation: 31 P.3d 1018,130 N.M. 744
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Benny MARTINEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

31 P.3d 1018

130 N.M. 744

STATE of New Mexico, Plaintiff-Appellee, v. Benny MARTINEZ, Defendant-Appellant.

No. 21,100.

Court of Appeals of New Mexico.

June 28, 2001.

Certiorari Denied August 13, 2001.

Patricia A. Madrid, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Appellee.

Phyllis H. Subin, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 27,046, August 13, 2001.

OPINION

BOSSON, Chief Judge.

{1} The opinion heretofore filed in this case is withdrawn and the following substituted therefor. The motion for rehearing (reconsideration) is denied.

{2} After a jury convicted Benny Martinez (Benny) of second-degree murder, Benny appealed, attacking his attorney's representation as ineffective and falling short of constitutional standards. We hold that defense counsel's representation of Benny was hampered by an actual conflict of interest which rendered his representation ineffective as a matter of law. We reverse Benny's conviction and remand to the district court for a new trial. We do not reach the sentencing issues Benny also raises.

BACKGROUND

{3} On May 31, 1998, the Eddy County Sheriff's Department responded to a 911 call from Rachael Martinez (Rachael) (no relation to Benny Martinez). Rachael called 911 to report that three men had just attacked her companion, Elmo (Primo) Rodgers, at a house on Thomason Road in Carlsbad, and that someone in that group had shot Primo. Rachael fled the scene of the shooting to call 911. The operator dispatched an ambulance and law enforcement personnel to 1809 Thomason Road, the address where the shooting took place.

{4} When sheriff's deputies arrived at the scene, they found Primo lying on the ground in the front yard of the house, and Benny, who lived at 1809 Thomason Road, standing over his body. Primo was dead. Benny told the first sheriff's deputy on the scene that he "didn't kill this dude." Rachael, who had returned after making the 911 call, then screamed at Benny, "You shot him you son-of-a-bitch, you shot him." A sheriff's deputy described Rachael as upset and angry to the point of being frantic. Benny responded to Rachael's accusation with a request that the deputies "check" his hands, suggesting that he wanted a gunshot-residue test performed to prove that he had not fired a weapon. Fearing an altercation, the deputies separated the two, placing them into different patrol cars. Both were taken to the station for questioning.

{5} The deputies searched the entire premises, but never found the murder weapon. The deputies did find bullet casings and tracks in the soil from the tires of two different cars leaving the scene. One set of tire tracks belonged to Rachael's car, and the other to a different vehicle. The tire track depressions revealed that Rachael's car departed the scene first, followed by the second car. The timing of each car's departure could be determined from the overlay of the tire tracks; the second car's tire tracks went over the top of Rachael's tire tracks. Two other cars remained at the house. One belonged to Benny. The other was a black Chevrolet Blazer parked close to the house.

{6} When questioned at the station, Rachael told sheriff's deputies that she drove to Benny's house with Primo in her car. When she arrived there, she pulled into the driveway and parked on the left of a white "detective looking car." The white car was in turn parked to the left of the black Blazer. Benny met Primo at her car and escorted Primo inside the house. Once Primo was inside, Rachael said she could see three men attack him through the open door of the house. Primo escaped from the house, only to be pursued and shot as he ran past her car. Rachael described the shooter as a grayhaired man with a ponytail, a description consistent with Benny's appearance. According to Rachael, the white car left the scene after the shooting but before the deputies arrived.

{7} Benny told the sheriff's deputies a vastly different story. According to Benny, Primo and Rachael drove over to his house. The purpose of their visit was to discuss the sale of some statues that Primo wanted to sell. Initially, Benny spoke with the couple briefly at their car, then Benny and Primo carried the statues inside the house where they discussed the sale in private. A short time later Primo left the house while Benny remained inside. As Primo left, Benny heard gunshots and ran just outside the door where he could see someone, whom he could not describe, shooting at Primo. Benny could not describe where the shooter was standing.

{8} Based on the evidence collected and Rachael's statements, Benny was arrested on an open count of murder. He was also charged with tampering with evidence because the gun was never found despite a thorough search of the premises. Attorney Michael Carrasco (hereinafter "defense counsel") defended Benny against the pending criminal charges. At the preliminary hearing, defense counsel cross-examined the State's key witness, Rachael. When he questioned Rachael about the identity of the two men who allegedly had assisted Benny in the fight, the following colloquy ensued:

Rachael: For all I know you could have been the man that was there that helped him beat him up, because your Blazer was there!. . . .

Counsel: How did you know my Blazer was there?

Rachael: Because a detective told me that it was your Blazer.

Counsel: Which detective?

Rachael: I'm not going to tell you which one.

. . . .

Rachael: If it was you, I never did get to see your face and you have your hair in a ponytail like that and the guy that was there had shoulder length hair like this and he was slim, just the way you are.

. . . .

Counsel: I'm just trying to find out exactly what it is that you saw, Ms. Martinez.

Rachael: Well, maybe you know, maybe you were there!

Counsel: Maybe I wasn't.

Judge: Ms. Martinez just respond to the questions, madam.

At the end of the preliminary hearing the magistrate judge bound Benny over for trial on the murder charge but dismissed the charge of tampering with evidence.

{9} Despite the contentious atmosphere at the preliminary hearing, defense counsel never filed a motion in limine to prevent the State, or the State's witnesses, from referring to defense counsel as the owner of the Blazer. Nor did he withdraw from the case. Thus, the district judge, who did not preside at the preliminary hearing, was never forewarned of the potential problem created by defense counsel's Blazer being at the scene of the crime.

{10} Benny's trial provided more details about defense counsel's relationship to the case. During the prosecution's presentation of its case, Detective Ballard discussed the layout of the crime scene and the evidence collected. Detective Ballard described the position of the two cars that were at the scene when they arrived relative to Rachael's car and the white car that Rachael testified had been at the house that night. Detective Ballard's testimony prompted the trial judge to ask, in front of the jury, who owned each car remaining at the scene when the deputies arrived. Detective Ballard responded that Benny owned one car, and the "black Blazer belongs to the defense attorney, Michael Carrasco."

{11} The tire track evidence at the scene strongly suggested that the white "detective looking car" had been present at the time of the killing. Sheriff's Deputy Ray Goff testified that the evidence at the scene corroborated Rachael's claim that a car was there during the killing, because the tire tracks demonstrated that a car had been parked between her car and the Blazer. Detective Ballard testified that the overlay of the tire tracks proved that this car departed after Rachael did, but before law enforcement arrived.

{12} The evidence suggested that the white car was also owned by defense counsel's law firm. When asked to identify State's Exhibit 8, Detective Ballard responded, "This is a picture of a white Ford Crown Victoria, and the photo taken was outside the Reif-Carrasco law firm-where I learned that this vehicle belonged to the [Reif-Carrasco] law firm—and learned through investigation that the person who was driving this vehicle, [Manny Girdley,] had been to the location of 1809 Thomason Road" the night of the murder in that car. Detective Ballard testified that the tire measurements of the white car Rachael reported leaving the scene matched those of the white car in the photograph, belonging to defense counsel's law firm, and that the tread patterns on the tires of both cars were "similar." Detective Ballard acknowledged that Ford Crown Victorias were frequently used as official law enforcement vehicles, thereby corroborating Rachael's description of a white "detective looking car."

{13} After the State rested its case, the jury went to lunch, and the trial judge conferred with the attorneys in Benny's presence to express his concerns about the case. The trial judge voiced a concern about whether it was appropriate for defense counsel to represent Benny given that his car and another car associated with his law firm were at the murder scene. The judge felt that a reasonable juror could draw an inference that the murder weapon was removed from the scene by the person driving the white vehicle, who might well be defense counsel's employee, Girdley. After voicing these concerns, the trial judge asked the prosecutor about defense counsel's role in the case. The prosecutor responded by saying, "[T]here's nothing I can prove. There's nothing that can be proven. Like, you said, there's a lot of inferences, but, well, that's it."

{14} Responding to the judge's concerns, defense counsel steadfastly denied being present at Benny's house on the day of the murder. Defense counsel explained that he and Benny were business partners in a bar and grill, and that Benny used the Blazer in the course of that business. Nevertheless, the judge...