State v. Neal
| Decision Date | 26 September 2016 |
| Docket Number | NO. 33,552,33,552 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JOSEPH NEAL, 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 OTERO COUNTY
Hector H. Balderas, Attorney General
Maris Veidemanis, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant, Joseph Neal, appeals from his convictions for trafficking methamphetamine, contrary to NMSA 1978, Section 30-31-20(A)(1) (2006), and possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A) (2001). Defendant argues that (1) he received ineffective assistance of counsel, (2) the State presented insufficient evidence to sustain his convictions, (3) his convictions violate the prohibition against double jeopardy, and (4) the district court erred in denying his motion for a mistrial after it read an incorrect charge to the jury. We affirm.
{2} In the early morning hours of September 24, 2011, Jerry Wheeler, the owner of a storage facility in Alamogordo, New Mexico, drove by the facility and noticed a white vehicle parked outside one of the storage units. Mr. Wheeler saw Defendant exit the storage unit. As Mr. Wheeler approached, he also saw an unidentified woman and noticed that there were mattresses on the floor of the unit. It appeared to Mr. Wheeler that someone may have stayed in the unit overnight. Mr. Wheeler told Defendant and the unidentified woman that he had called the police. Defendant drove away from the storage facility, leaving the woman behind.
{3} The woman eventually identified herself to Mr. Wheeler as Ameera Itani and told him that she had permission to access the storage unit, which was rented by her mother, Janet Styger. When the police arrived, Ms. Itani was still present at thestorage facility. Mr. Wheeler could not reach Mrs. Styger, so a police officer took Ms. Itani home.
{4} Mr. Wheeler's wife, Naomi, called Mrs. Styger. Mrs. Styger met the Wheelers at the storage facility and gave them permission to enter the storage unit. Inside the unit, the Wheeler's discovered several items that concerned them including: a bottle of acetone, drain cleaner, muriatic acid, and a backpack, which contained several packages of matches and packages of pills. Mrs. Wheeler and Mrs. Styger placed those items outside the storage unit.
{5} Police returned to the storage unit and ultimately seized a number of items that appeared to be components of a mobile methamphetamine lab. At least one item, a black scale, seized from the storage unit had methamphetamine residue on it. Defendant was charged with trafficking methamphetamine by manufacturing and possession of drug paraphernalia. Defendant was also charged with abandonment or abuse of a child because his and Ms. Itani's infant was present with them at the storage unit on the morning of September 24, 2011.
{6} At Defendant's first trial, the district court entered a directed verdict on the child abuse charge. After the case was submitted to the jury, one juror suffered an injury that prevented her from participating in deliberations. Because there were no alternate jurors, the district court declared a mistrial. Defendant was tried a secondtime and convicted of trafficking methamphetamine and possession of drug paraphernalia.
{7} Defendant claims that he received ineffective assistance of counsel because (1) his attorney concurrently represented one of the State's witnesses; and (2) his attorney did not move to disqualify the prosecutor, based on the prosecutor's previous representation of Defendant. "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.
{8} "The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantees . . . the right to the effective assistance of counsel." Patterson v. LeMaster, 2001-NMSC-013, ¶ 16, 130 N.M. 179, 21 P.3d 1032 (internal quotation marks and citation omitted). "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. "[A]n appellate court may remand a case for an evidentiary hearing if the defendant makes a prima facie case of ineffective assistance." State v. Paredez, 2004-NMSC-036, ¶ 22, 136 N.M. 533, 101 P.3d 799 (internal quotation marks and citation omitted).
{9} "A prima facie case of ineffective assistance is made by showing that defense counsel's performance fell below the standard of a reasonably competent attorney and, due to the deficient performance, the defense was prejudiced." Patterson, 2001-NMSC-013, ¶ 17 (internal quotation marks and citation omitted). As to the first prong, "[d]efense counsel's performance is deficient if it falls below an objective standard of reasonableness[,]" usually judged as an action contrary to "that of a reasonably competent attorney." Dylan J., 2009-NMCA-027, ¶ 37. Our review of counsel's performance is "highly deferential" in that counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. (internal quotation marks and citation omitted). Therefore, a defendant "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." State v. Hunter, 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168 (internal quotation marks and citation omitted). "If there is a plausible, rational strategy or tactic to explain counsel's conduct, a prima facie case for ineffective assistance is not made." Dylan J., 2009-NMCA-027, ¶ 39.
{10} As to the second prong, "[a] defense is prejudiced if, as a result of the deficient performance, there was a reasonable probability that . . . the result of the trial would have been different." Id. ¶ 38 (omission in original) (internal quotation marks andcitation omitted). "A reasonable probability is one that is sufficient to undermine confidence in the outcome." Id. (internal quotation marks and citation omitted). The deficient performance "must represent so serious a failure of the adversarial process that it undermines judicial confidence in the accuracy and reliability of the outcome." Id. (internal quotation marks and citation omitted). A defendant is entitled to an evidentiary hearing on his ineffective assistance claim when the record on appeal presents "a prima facie case of ineffective assistance of counsel." State v. Herrera, 2001-NMCA-073, ¶ 35, 131 N.M. 22, 33 P.3d 22.
{11} Defendant alleges that an actual conflict of interest arose from defense counsel's concurrent representation of Defendant and Ms. Itani, who testified for the State. An ineffective assistance of counsel claim based on defense counsel's conflict of interest is analyzed differently than the "more typical ineffective assistance of counsel claim based on lack of competence and resulting prejudice." Rael v. Blair, 2007-NMSC-006, ¶ 10, 141 N.M. 232, 153 P.3d 657. "A defendant must show that counsel, actively represented conflicting interests and that an actual conflict of interest adversely affected his or her lawyer's performance." Id. ¶ 11 (alteration, internal quotation marks, and citation omitted). When "counsel is burdened by an actual conflict of interest[,]" prejudice is presumed. Id. (). "In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties." Id. (internal quotation marks and citation omitted).
{12} Although the State does not dispute Defendant's contention that his attorney represented Ms. Itani, who was also charged in connection with the facts giving rise to this case, facts regarding that representation were not made part of the district court record. To the extent that Defendant refers us to https://caselookup.nmcourts.gov/, and suggests that we take judicial notice of court records therein for facts regarding this claim, we decline to do so.
{13} "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. In order to establish a prima facie case of ineffective assistance, Defendant must establish both attorney error and prejudice by producing "enough evidence to allow the fact-trier to infer the fact at issue and rule in favor." State v. Crocco, 2014-NMSC-016, ¶ 24, 327 P.3d 1068 (alteration in original) (internal quotation marks and citation omitted). Because Defendant cannot establish a prima facie case of ineffective assistance based on the facts in the record, we "cannot determine that trial counsel provided constitutionally ineffective assistance." Id. ¶ 15.
{14} Defendant claims that defense counsel provided ineffective assistance when he failed to move to disqualify the prosecuting attorney. After Defendant's trial, the State filed a supplemental criminal information concerning Defendant's status as a habitual offender. At the arraignment on the supplemental information, defense counsel informed the district court that Defendant believed that the prosecutor had a conflict of interest....
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