State v. Plouse

• Decision Date: 15 January 2003
• Docket Number: No. 22,398.,22,398.
• Citation: 133 N.M. 495,2003 NMCA 48,64 P.3d 522
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Christopher PLOUSE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

64 P.3d 522

133 N.M. 495

2003 NMCA 48

STATE of New Mexico, Plaintiff-Appellee, v. Christopher PLOUSE, Defendant-Appellant.

No. 22,398.

Court of Appeals of New Mexico.

January 15, 2003.

Certiorari Denied February 25, 2003.

Patricia A. Madrid, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.

Nancy L. Simmons, The Law Offices of Nancy L. Simmons, PC Albuquerque, NM, for Appellant.

Certiorari Denied, No. 27,904, February 25, 2003.

OPINION

SUTIN, Judge.

{1} Defendant appeals from the judgment entered after a jury found him guilty of Escape from Penitentiary under NMSA 1978, § 30-22-9 (1963). He asserts the violation of his Sixth Amendment rights to effective assistance of counsel and to a speedy trial, and denial of his right to due process. We affirm.

BACKGROUND

{2} Defendant was convicted of two counts of second degree murder in 1992 and was confined to the Southern New Mexico Correctional Facility (Southern). In 1993 he was transferred to the penitentiary near Santa Fe, New Mexico, allegedly as a result of his failure to become an informant for the prison administration. After placement into involuntary segregation after a stabbing incident and because of the prison administration's fear of further harm to him, he was transferred to the prison in Los Lunas, New Mexico. In an attempt to relieve overcrowding, Defendant was among other prisoners transferred to a Texas county jail for a short time. Upon his return to New Mexico, he was placed back at the penitentiary in Santa Fe. Again, Defendant was placed in involuntary segregation by the administration for his protection after another stabbing incident that did not directly involve Defendant. In 1997 Defendant was again transferred to the facility in Los Lunas. In 1999 he went back to Southern and was placed in the close-custody unit and then, after another stabbing unrelated to Defendant, he was placed in segregation for approximately a day, and then was placed back in the close-custody unit. About one month after being returned to the general population, Defendant attempted to escape.

{3} Underneath his shirt, Defendant brought a large rock from an outside work detail into the prison. To avoid disclosure of their plan to escape, Defendant and another inmate waited until the other prisoners were outside for recreation before hammering at the cell wall with the rock. Although Defendant and the other inmate believed that the wall would be hollow, much to their dismay they learned the prison's cinder block walls are filled with cement. Since the escape was going to take longer than originally anticipated, Defendant crafted a cardboard vent cover to hide the large hole in the wall. Once they had finally broken through the concrete wall, Defendant and the other inmate crawled through the ventilation system and crawled across the prison yard toward the fence, at which point they were apprehended.

{4} Defendant was convicted by a jury of escape from a penitentiary, in contravention of Section 30-22-9. On appeal, Defendant does not dispute trying to escape. Rather, Defendant argues that his conviction resulted from ineffective assistance of counsel on three grounds: (1) his attorney's incompetence; (2) the district court's failure to adequately determine whether his waiver of counsel was voluntary, knowing, and intelligent; and (3) his attorney's failure to withdraw while he and his attorney were in conflict. In addition, Defendant contends that his right to a speedy trial was violated, and that he was denied due process because the State failed to produce exculpatory evidence.

DISCUSSION

I. Ineffective Assistance of Counsel

A. Attorney Competence

{5} Defendant argues that his attorney failed to provide constitutionally adequate assistance by (1) failing to pursue discovery requests, (2) failing to communicate with Defendant prior to and during trial, (3) failing to call witnesses at trial, and (4) making tactical decisions that were fatal to Defendant's defense. Defendant concedes that most of his factual contentions are not of record. Defendant attempted to establish a record by asking this Court to permit him to file an affidavit setting out allegations regarding his attorney. We denied the motion. We have not considered the affidavit. Defendant asks this Court either to reverse and remand for a new trial, or, alternatively, to remand for an evidentiary hearing on the ineffective assistance issue.

{6} The Sixth Amendment of the United States Constitution affords defendants in any criminal prosecution the right to effective assistance of counsel. See Patterson v. Le-Master, 2001-NMSC-013, ¶ 16, 130 N.M. 179, 21 P.3d 1032

; State v. Martinez, 2001-NMCA-059, ¶ 22, 130 N.M. 744, 31 P.3d 1018. "Proof of ineffective assistance is two-fold: (1) Defendant must show that counsel's performance fell below that of a reasonably competent attorney, and (2) Defendant also must prove that the deficient performance prejudiced the defense." State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729 (internal quotation marks and citation omitted). "The [d]efendant has the burden of proving both prongs of the test." Id. "Counsel is presumed competent unless a defendant succeeds in showing both the incompetence of his attorney and the prejudice resulting from the incompetence." State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127; see also State v. Trujillo, 2002-NMSC-005, ¶ 38, 131 N.M. 709, 42 P.3d 814 (providing that defense counsel is presumed effective unless a defendant shows " `both that counsel was not reasonably competent and that counsel's incompetence caused the defendant prejudice' ") (quoting State v. Gonzales, 113 N.M. 221, 229-30, 824 P.2d 1023, 1031-32 (1992)).

{7} In cases in which further evidence is required for review, we will not remand for an evidentiary hearing unless the defendant first establishes a prima facie case of ineffective assistance of counsel. See State v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845

("Without a record, we cannot consider Defendant's claim of ineffective assistance of counsel on direct appeal."); State v. Hosteen, 1996-NMCA-084, ¶ 6, 122 N.M. 228, 923 P.2d 595 (recognizing that remand is limited to those cases whose records on appeal establish a prima facie case of ineffective assistance of counsel).

1. Discovery Requests

{8} The district court issued an order providing that the State and the Department of Corrections "disclosed all relevant documents in their possession" and "fully complied with the Court['s] Discovery Order." Defendant nevertheless claims his attorney failed to effectively pursue the production of certain documents that he requested, which, he contends, would have supported his defense that he escaped because of duress. More specifically, Defendant argues that his attorney failed to acquire his "complete prison file," his "complete medical file," and Security Threat Group documents and that this failure was "per se prejudicial." Yet, Defendant admits that his attorney stipulated to the admission of his "entire prison file." Further, while Defendant asserts that the inmate file produced by the State "was not Defendant's entire file," he does not provide evidence or descriptions of what was allegedly missing.

{9} Defendant also asserts that his attorney failed to pursue the discovery of Defendant's complete prison file, and that although his attorney did request Defendant's complete medical file and the Security Threat Group documents, these documents were not produced by the State. Defendant's assertions are incorrect. The record shows that Defendant formally requested his complete inmate file, his complete medical file, and copies of any Security Threat Group documents in which Defendant was referenced. The Department of Corrections responded to the request, stating that it would make the documents available, except for certain documents it would not disclose.

{10} After a hearing at which Defendant and his attorney were present, the court entered an order stating that Defendant's inmate file had been forwarded by the Department to the prosecution, that the court would conduct an in camera review of the items the Department refused to disclose, and that Defendant's medical file and the documents relating to the Security Threat Group had been made available to Defendant. The court determined that it would conduct its in camera review and make a ruling regarding those documents, and that "[t]he other discovery matters ha[d] been resolved."

{11} At trial, discovery issues were again raised. Defendant personally argued them. The court stated that it was "satisfied that the documents were produced that were available to be produced." Following Defendant's trial, the court entered an order denying Defendant's motion for a new trial or in the alternative to dismiss, in which the court determined that Defendant's attorney "provided competent representation ... throughout discover[y] proceedings" and that "[t]he State and the Corrections Department disclosed all relevant documents in their possession." Based on the record, Defendant has no basis on which to assert that his attorney failed to pursue discovery of the documents in question.

{12} Furthermore, our case law requires a showing, from the totality of the evidence, that there was prejudice. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. "The prejudice must be of sufficient magnitude to call into question the reliability of the trial results." Id. Defendant has not presented evidence that reaches this magnitude. In addition, Defendant fails to cite any authority for his claim that his attorney's failure to acquire the documents was per se prejudicial. Thus, we will not consider Defendant's implicit assertion that no prejudice need be shown. See State v. Woodward, 1996-NMSC-012, ¶ 58, 121 N.M. 1, 908 P.2d 231

(noting that we will not consider arguments without citation...