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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOSEPH MATTHEW FOSTER,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Matthew E. Chandler, District Judge,
Hector H. Balderas, Attorney General, Santa Fe, NM, Walter M. Hart, III,
Assistant Attorney General, Albuquerque, NM, for Appellee
Bennett J. Baur, Chief Public Defender,
Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant
J. MILES HANISEE, Judge. WE CONCUR: EMIL
J. KIEHNE, Judge Pro Tempore, DANIEL J. GALLEGOS, Judge Pro Tempore
{1} Joseph Matthew
Foster (Defendant) appeals three convictions: possession of a controlled
substance, possession of drug paraphernalia, and possession of a firearm by a
felon. On appeal, Defendant argues that (1) the State committed prosecutorial
misconduct; (2) the district court erred in admitting police hearsay testimony,
thereby violating his right to confront witnesses under the Confrontation
Clause; (3) the three convictions were not supported by sufficient evidence;
(4) he received ineffective assistance of counsel; and (5) cumulative error
warrants reversal. Unpersuaded, we affirm.
{2} Lieutenant
Lyndell Max Stansell and another officer responded to a call reporting the
admission of a gunshot wound victim to Plains Regional Medical Center in
Clovis. The victim, Benardo Baca, although alert and otherwise responsive, was
reluctant to speak to Lieutenant Stansell about the shooting incident and
unwilling to cooperate with the investigation. Despite Mr. Baca’s
recalcitrance, Lieutenant Stansell was able to determine that the shooting had
taken place at a certain residence in Clovis and involved an individual named
“Ace,” an alias known by Lieutenant Stansell to be used by Defendant.
{3} Upon
arriving at the Clovis residence, Lieutenant Stansell joined other responding
officers who had already made contact with the occupants of the house.
Lieutenant Stansell observed .25 caliber shell casings in the driveway and
detected a “faint odor” of marijuana inside the house. The officers secured the
residence and waited for the issuance of a search warrant. In addition to
Defendant, also present in the house were two adult females, at least one of
whom was Defendant’s daughter,
1 The record is unclear as to whether the second
female encountered by police at the scene was also Defendant’s daughter or,
instead, his niece. This fact, however, is immaterial to our analysis.
1 six young children, and the boyfriend of one of the adult
females. The boyfriend was the only person present who did not permanently
reside at the home.
2 Defendant’s statement to police indicated that he
lived at the residence with his daughters, grandchildren, grandnieces, and
grandnephews, “but no one else.”
2 Lieutenant Stansell conducted a pat-down search of
Defendant, who thereafter proceeded to a neighbor’s house. When officers later
attempted to question Defendant, they learned from neighbors that he had left
the area.
{4} Also
responding to the scene was Detective Adriana Munoz. Munoz testified that,
prior to issuance of the search warrant, she entered the house with the consent
of Defendant’s adult daughter and ascertained which bedrooms belonged to whom.
Soon thereafter, the search warrant was issued and officers searched the
residence. In the bedroom that Detective Munoz believed belonged to Defendant,
she discovered a chest containing male clothing, a .22 caliber magazine, and
boxes of .22 and .25 caliber ammunition, as well as a jewelry box containing a
needle filled with liquid, a spoon with a crystal-like substance, a scale used
to weigh narcotics, women’s jewelry, and tampons. Police later determined that
the substance inside the needle and on the spoon was methamphetamine. Detective
Munoz also recovered a pink firearm in a common area of the residence that
could fire .25 caliber bullets.
{5} Defendant
was interviewed by a police interrogator several days later and, after being
given
Miranda warnings, provided several incriminating statements
relevant to this appeal. Defendant admitted that he was sick on drugs and a
drug addict. Defendant also acknowledged awareness of the pink firearm in the
house and, while denying being the shooter, indicated that the police would
probably find his fingerprints on the pink gun. As to who shot Mr. Baca,
Defendant conceded that he (Defendant) went by the name “Ace,” but maintained
that his nephew, Shawn Acey, was the shooter and that others often confused him
with his nephew.
{6} The State
subsequently charged Defendant with aggravated battery based on the shooting of
Mr. Baca, possession of a controlled substance, possession of drug
paraphernalia, and possession of a firearm by a felon.
{7} At trial, Detective
Munoz testified that she “deduced through information” that the bedroom
containing the chest and jewelry box belonged to Defendant. When Detective
Munoz was asked on direct examination about the search of that bedroom,
Defendant’s trial counsel objected, arguing during a bench conference that the
officer’s conclusion that the bedroom was Defendant’s was based solely on
hearsay. The district court overruled the objection, allowing Defendant to
cross-examine Detective Munoz on that issue.
{8} During the
ensuing cross-examination, defense counsel asked if it was true that “someone
told you that that was [Defendant’s] room?” Detective Munoz responded, “Yes.”
Counsel then asked Detective Munoz whether Defendant had admitted that it was
his room. Detective Munoz responded in the negative, adding that she had
concluded that Defendant resided in that bedroom because it was the only room
in the house that contained male clothing and Defendant was the only adult male
known to live in the house.
{9} The State,
after resting its case, and despite having represented to the jury in its
opening statement that Mr. Baca would testify at trial, voluntarily dismissed
the aggravated battery charge against Defendant based on Mr. Baca’s failure to
appear as a witness. Reprising his previous hearsay objections, Defendant asked
the district court to strike Detective Munoz’s testimony pertaining to
Defendant’s occupancy of the bedroom in question and to provide a curative
instruction. The district court denied Defendant’s request, citing as grounds
the record evidence supporting Detective Munoz’s assessment that the bedroom
belonged to Defendant and noting defense counsel’s failure to request a
curative instruction at the time the officer testified several hours earlier.
A. Prosecutorial Misconduct
{10} Defendant
argues the State committed prosecutorial misconduct when it stated during
opening statement that Mr. Baca would testify at trial regarding the aggravated
battery count, only to later dismiss the count when Mr. Baca failed to appear
for trial. In this regard, Defendant points out that the State was obviously
aware of Mr. Baca’s lack of cooperation and of the possibility that he might
not appear for trial. On another score, Defendant argues that the State
misrepresented the nature of the relationship between the shell casings found
at the scene and the firearm found in the residence.
{11} We begin by
noting that Defendant has raised his claim of prosecutorial misconduct for the
first time on appeal. In these circumstances, this Court will review the claim
only for fundamental error.
See State v. Allen,
2000-NMSC-002,
¶ 95,
128 N.M. 482,
994 P.2d 728. “Prosecutorial misconduct rises to the
level of fundamental error when it is so egregious and had such a persuasive
and prejudicial effect on the jury’s verdict that the defendant was deprived of
a fair trial.”
State v. Carrillo,
2017-NMSC-023, ¶ 50,
399 P.3d 367
(internal quotation marks and citation omitted).
{12} With respect
to Defendant’s initial contention that the State committed prosecutorial
misconduct by failing to dismiss the aggravated battery charge prior to trial,
we observe that Defendant provides no support for his underlying premise that
when the state is unaware of whether a witness will testify or unsure of what
that witness might say in the event he or she testifies, the count or counts at
issue must be dismissed.
See In re Adoption of Doe,
1984-NMSC-024,
¶ 2,
100 N.M. 764,
676 P.2d 1329 (indicating that where a party cites no
authority to support an argument, we may assume no such authority exists). We
consider this proposition no further.
{13} Defendant
next argues that the State committed prosecutorial misconduct during the
opening statement by discussing the aggravated battery charge, and stating that
Mr. Baca would testify, despite knowing otherwise. “If the prosecutor, in his
opening statement stated facts, having reason to believe such facts could not
be proved, that would be evidence of bad faith.”
State v. Torres,
1970-NMCA-017, ¶ 41,
81 N.M. 521,
469 P.2d 166.
But see State v. Fuentes,
1978-NMCA-028, ¶ 17,
91 N.M. 554,
577 P.2d 452 (finding no evidence of bad
faith on the part of the prosecutor in referring during opening statement to
the potential testimony of a witness who ultimately did not testify). However,
that is not what occurred in this case. It appears instead that the State
believed it could prove the aggravated battery charge with the benefit of Mr.
Baca’s testimony, and continued its efforts to contact him throughout the trial.
3 It is true, as Defendant notes, that the State
represented to the district court a month prior to trial that it did not
“believe we will be able to go forward . . . based on the lack of cooperation
from Mr. Baca.” However, we view this statement only as a recitation of the
obvious reality that the aggravated battery charge would be difficult to prove
without Mr. Baca’s testimony, and not that the State definitively knew that Mr.
Baca would not testify.
3 See State v. Martinez, 1971-NMCA-115, ¶ 9, 83 N.M.
9, 487 P.2d 919 (“This is not a case where the prosecutor, in his opening
statement, stated facts which he had reason to believe could not be proved.”).
Further, as trial progressed the State attempted to prove Defendant committed
aggravated battery by use of other evidence. For example, Lieutenant Stansell
testified that police officers observed Mr. Baca’s gunshot wound and were
informed that “Ace” might be involved. The State also tried to link the
shooting to Defendant by comparing the .25 caliber casings found in the
driveway, where the shooting occurred, and the .25 caliber ammunition found in
Defendant’s bedroom and loaded in the pink firearm, which Defendant admitted to
handling. Most importantly, the State made clear that it did not know the substance
of Mr. Baca’s anticipated testimony but that it nonetheless planned to put Mr.
Baca on the stand and elicit his testimony. We conclude that the prosecutor’s
actions fell significantly short of the rigorous fundamental error standard
needed to establish actionable misconduct. Although the State wrongly informed
the jury—at its own peril—that Mr. Baca would testify, that representation,
standing alone and without more, did not rise to the level of “extreme
disregard for the truth, and such a clear intent to influence the jury by false
statements, as would warrant a reversal of the case[.]” State v. McDonald,
1915-NMSC-080, ¶ 3, 21 N.M. 110, 152 P. 1139 (internal quotation marks and
citation omitted); see id. (recognizing that a prosecutor’s
“overstatement” during opening statement is “[u]sually . . .
prejudicial” to the state (internal quotation marks and citation omitted)); see
also State v. Gilbert, 1982-NMSC-137, ¶ 15, 99 N.M. 316, 657 P.2d 1165
(finding no bad faith where the discrepancies in the prosecutor’s opening
statement and the testimony presented did not prejudice the defense).
{14} In sum, we
find no basis in the record to question the bona fides of the State’s expressed
intention to call Mr. Baca as a witness or its efforts to secure his testimony.
Thus, we conclude that there was no prosecutorial misconduct in connection with
the State’s opening statement or its ensuing dismissal of the aggravated
battery count, and thus no fundamental error upon which reversal could be
premised.
{15} Nor did the
State commit prosecutorial misconduct—and certainly none approaching
fundamental error—by stating in its closing argument that the shell casings
found in the driveway matched the bullets found in Defendant’s bedroom, and
this despite the lack of any ballistics testing. While the State indicated in
its opening statement that it would demonstrate that Defendant had shot Mr.
Baca, it never affirmatively stated, during closing argument or otherwise, that
any ballistics testing was done. Indeed, Detective Munoz herself confirmed the
absence of ballistics testing during her testimony. While the prosecutor
explained in closing that the shell casings found outside the house matched the
“exact kind” of ammunition found in the pink firearm and in Defendant’s
bedroom, no representation was made to the jury that the pink gun was the
shooting weapon in this case. Indeed, this portion of the prosecutor’s closing
statement was consistent with Detective Munoz’s unobjected-to trial testimony
that the shell casings found in the driveway were of the same caliber as the
ammunition recovered from the pink firearm and in other areas of Defendant’s
bedroom.
4 We note that Defendant has not challenged, either at
trial or on appeal, the competency of Detective Munoz or Lieutenant Stansell to
testify regarding the caliber of the ammunition or the pink firearm recovered
at the scene.
4 Thus, the prosecutor’s comments in closing argument did
not deviate from the evidence or cause Defendant any discernible prejudice. See
State v. Montgomery, 2017-NMCA-065, ¶ 13, 403 P.3d 707 (“During closing
arguments, remarks by the prosecutor must be based upon the evidence or be in
response to the defendant’s argument.” (internal quotation marks and citation
omitted)). We again conclude that no act of prosecutorial misconduct took place
and that no fundamental error occurred.
B. Hearsay and Confrontation Issues
{16} Defendant
argues that the district court committed reversible error by admitting hearsay
evidence adduced during the State’s questioning of Detective Munoz regarding
which inhabitant(s) of the house lived in the bedroom containing the
incriminating evidence, i.e., the needle, spoon, and ammunition. This Court
reviews evidentiary determinations under an abuse of discretion standard.
See
State v. Jaramillo,
2012-NMCA-029, ¶ 17,
272 P.3d 682.
“We cannot
say the [district] court abused its discretion by its ruling unless we can
characterize it as clearly untenable or not justified by reason.”
State v.
Apodaca,
1994-NMSC-121, ¶ 23,
118 N.M. 762,
887 P.2d 756 (internal
quotation marks and citation omitted).
{17} Defendant
contends that Detective Munoz’s testimony regarding which bedroom belonged to
Defendant constituted inadmissible hearsay as it stemmed either from the
statement of Defendant’s daughter or the other adult female at the scene,
neither of whom testified, and Detective Munoz otherwise had no personal
knowledge of the matter, as required by Rule
11-602 NMRA.
See State v. Smith,
2001-NMSC-004, ¶ 21,
130 N.M. 117,
19 P.3d 254 (noting that under Rule
11-602 a witness must have “personal knowledge of a matter to testify”).
Defendant asserts that this led to two errors by the district court, the first
in improperly permitting Detective Munoz to testify, and the second, in
refusing to give a curative instruction so that the jury would not consider the
testimony as substantive evidence. In Defendant’s view, there was no other
evidence upon which the jury could have found that Defendant possessed the
methamphetamine, drug paraphernalia, or the firearm.
{18} Defendant’s
argument misunderstands the hearsay rule and mischaracterizes the manner in
which the officer’s testimony was admitted at trial. First, Rule
11-801(C) NMRA
defines hearsay as a “statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence
to prove the truth of the matter asserted in the statement.” Detective Munoz’s
testimony, however, did not fall within the ambit of the rule. Granted, no
witness with personal knowledge of the location of Defendant’s bedroom
testified as to that issue and, in result, any testimony from Detective Munoz
as to what she was told by others about the location of Defendant’s bedroom would
have been hearsay had the prosecution offered it into evidence to prove that
Defendant inhabited the bedroom containing the incriminating evidence. But
here, on direct examination, Detective Munoz testified only that she “deduced
through information” that the bedroom was Defendant’s. As the district court
noted in denying Defendant’s subsequent motion to strike Detective Munoz’s
testimony, that information was derived not from a hearsay source, but rather
from the officer’s personal observations and deductions from facts in evidence,
including those relating to the layout of the house, the age and gender of its
residents, and the nature of the clothing found in the bedroom containing the
contraband.
{19} Significantly,
it was only during cross-examination by Defendant’s attorney that Detective
Munoz was directly asked whether she was told by someone other than Defendant
that the bedroom in question was his, a question to which she responded
affirmatively. Thus, the challenged testimony was elicited not by the State,
but by Defendant, in order to discredit the basis upon which Detective Munoz
believed that the bedroom was Defendant’s. “It is well established that a party
may not invite error and then proceed to complain about it on appeal.”
State
v. Jim,
2014-NMCA-089, ¶ 22,
332 P.3d 870. “To allow a defendant to invite
error and to subsequently complain about that very error would subvert the
orderly and equitable administration of justice.”
State v. Handa,
1995-NMCA-042, ¶ 35,
120 N.M. 38,
897 P.2d 225 (alteration, internal quotation
marks, and citation omitted).
{20} In the final
analysis, Detective Munoz had independent, personal knowledge that the bedroom
containing the contraband was Defendant’s—and this irrespective of what she may
have been told by others at the scene—thus rendering her testimony akin to a
lay opinion under Rule
11-701 NMRA.
See Sanchez v. Wiley,
1997-NMCA-105,
¶ 17,
124 N.M. 47,
946 P.2d 650 (indicating that lay opinion testimony
under Rule 11-701 is permissible when it is rationally based on the perception
of the witness and helpful in the determination of a fact at issue). Under
these circumstances, we find no abuse of discretion in the district court’s
decision to overrule Defendant’s hearsay objection, or its denial of Defendant’s
subsequent motion to strike Detective Munoz’s testimony in this regard and
provide a curative instruction to the jury.
{21} Nor does
Defendant stand on firmer ground in arguing that the admission of this same
testimony violated his right to confront the witnesses against him under the
Confrontation Clause.
See State v. Montoya,
2014-NMSC-032, ¶ 21,
333
P.3d 935 (“The Confrontation Clause of the Sixth Amendment guarantees all
criminal defendants, state and federal, the right to be confronted with the
witnesses against them.” (internal quotation marks and citation omitted)).
Again, because Defendant did not object below on these grounds, our review of
this claim is limited to fundamental error
. See State v. Jimenez,
2017-NMCA-039, ¶ 13 n.3,
392 P.3d 668,
cert. denied, ___-NMCERT-___ (No.
S-1-SC-36346, Apr. 6, 2017).
{22} Defendant’s
confrontation-related arguments rely on similar assumptions as those underlying
his hearsay argument. Specifically, Defendant contends that he was unable to
confront any witness regarding whatever statement(s) may have been made to
Detective Munoz identifying which bedroom in the residence was his. Under the
Confrontation Clause, “an out-of-court statement that is both testimonial and
offered to prove the truth of the matter asserted may not be admitted unless
the declarant is unavailable and the defendant had a prior opportunity to
cross-examine the declarant.”
State v. Smith,
2016-NMSC-007, ¶ 42,
367
P.3d 420 (internal quotation marks and citation omitted). Again, Defendant attempts
to assign exclusive probative value to what Detective Munoz was told at the
scene while ignoring the probative value of what she personally learned during
her ensuing investigation. It again bears emphasis that the State did not offer
the disputed statement through Detective Munoz’s direct testimony and that
Detective Munoz identified her own independent criteria for concluding that the
bedroom containing the contraband belonged to Defendant. At bottom, Defendant
may not now interject a Confrontation Clause issue arising from his own
cross-examination questioning, a shadowy semblance of an issue based on little
more than a vague and superfluous witness statement that the State itself did
not elicit. Thus, we conclude that there was no violation of the Confrontation
Clause amounting to fundamental error.
See Handa,
1995-NMCA-042,
¶ 35
(“[T]he doctrine of fundamental error has no application in cases
where the defendant, by his own actions, invites error.”).
C. Sufficiency of the Evidence
{23} Defendant
claims that there is insufficient evidence to support any of his three
convictions. A defendant may raise a sufficiency challenge for the first time
on appeal.
See State v. Stein,
1999-NMCA-065, ¶ 9,
127 N.M. 362,
981
P.2d 295.
{24} “The test for
sufficiency of the evidence is whether substantial evidence of either a direct
or circumstantial nature exists to support a verdict of guilty beyond a
reasonable doubt with respect to every element essential to a conviction.”
State
v. Montoya,
2015-NMSC-010, ¶ 52,
345 P.3d 1056 (internal quotation marks
and citation omitted). Substantial evidence consists of relevant evidence that
a reasonable mind might accept as adequate to support a conclusion.
See
State v. Salgado,
1999-NMSC-008, ¶ 25,
126 N.M. 691,
974 P.2d 661. This
Court views the evidence in a light most favorable to the verdict, indulging
all reasonable inferences and resolving all conflicts in the evidence in favor
of the verdict.
See State v. Cunningham,
2000-NMSC-009, ¶ 26,
128 N.M.
711,
998 P.2d 176. We disregard all evidence and inferences that support a
different result.
See State v. Rojo,
1999-NMSC-001, ¶ 19,
126 N.M. 438,
971 P.2d 829. “We do not reweigh the evidence and may not substitute our
judgment for that of the fact finder, so long as there is sufficient evidence
to support the verdict.”
State v. Brietag,
1989-NMCA-019, ¶ 9,
108 N.M.
368,
772 P.2d 898.
{25} All three of
Defendant’s convictions share the common element of possession, and possession
is the only element Defendant now asserts is unsupported by substantial
evidence. The jury instructions given at trial only define possession in the
context of the drug possession charge, and did so as follows:
A person is in possession of
methamphetamine when he knows it is on his person or in his presence, and he
exercises control over it. Even if the substance is not in his physical
presence, he is in possession if he knows where it is, and he exercises control
over it. Two or more people can have possession of a substance at the same
time. A person’s presence in the vicinity of the substance or his knowledge of
the existence or the location of the substance, is not, by itself, possession.
Defendant was not in actual possession of the contraband
found in the bedroom, making this a constructive possession case. See State
v. Garcia, 2005-NMSC-017, ¶ 13, 138 N.M. 1, 116 P.3d 72 (reviewing a
defendant’s felon in possession of a firearm conviction). Therefore, in order
to sustain Defendant’s convictions, the appellate courts “must be able to
articulate a reasonable analysis that the fact-finder might have used to
determine knowledge and control.” Id. (alteration, internal quotation
marks, and citation omitted).
{26} Defendant relies
mainly on
Brietag and
Garcia in arguing that there is
insufficient evidence linking him to the contraband recovered from what was
shown to be his bedroom. In
Brietag, police observed the defendant going
to and coming from a house that he rented, although officers could not say who
actually lived at the house.
1989-NMCA-019, ¶ 3. Seven or eight
individuals were staying at the house when police executed a search warrant,
but the defendant was not present.
Id. ¶¶ 3, 8. Upon searching the
house, the police found, among other things, methamphetamine, marijuana,
cocaine, and numerous items identifying the defendant in one of the bedrooms.
Id.
¶¶ 4, 6. However, the defendant had been living at another location for about a
month prior to the search, and the bedroom in question was actually a “crash
pad” occupied by a number of people and contained items identifying other
individuals.
Id. ¶¶ 8, 16. Based on those facts, this Court held that
there was insufficient evidence to establish “a rational connection between the
location of the drugs and [the] defendant’s knowledge and control sufficient to
prove constructive possession beyond a reasonable doubt.”
Id. ¶ 16. We
further noted that “[t]he inference of knowledge and control of drugs, based on
proximity to personal belongings, arises from the extent of control the owner
or lessee exercises over the area where drugs are found.”
Id. ¶ 17.
{27} To be
contrasted is
Garcia, where police discovered a firearm behind the
passenger’s seat of a car containing two occupants, the defendant and the
driver.
2005-NMSC-017, ¶ 4. Police also discovered the ammunition clip for the
firearm on the passenger’s seat where the defendant had been sitting.
Id.
The defendant was convicted of being a felon in possession of a firearm, and our
Supreme Court affirmed, finding sufficient evidence of knowledge and control.
Id.
¶ 15. The
Garcia Court concluded that there was sufficient evidence to
create a reasonable inference that the defendant had knowledge of the firearm
because the defendant had placed a beer bottle right next to the gun, acted in
a manner that showed consciousness of guilt, and was sitting on the ammunition
clip.
Id. The Court in
Garcia noted that, because there were two
occupants in the vehicle who had equal access to the firearm, the State needed
more than just physical proximity to establish control of the firearm, a
standard found to have been met by the presence of the ammunition clip.
Id.
¶¶ 21-22. “The clip was fully loaded and fit the gun located directly under
[the d]efendant’s seat, directly linking the clip to the gun.”
Id.
¶ 22. Pivotal was that control over the clip, which gave rise to control
over the gun.
Id.
{28} For its part,
the State relies on another constructive possession case,
State v. Muniz,
1990-NMCA-105, ¶ 1,
110 N.M. 799,
800 P.2d 734. In
Muniz, police
executed a search warrant of the defendant’s home while he was incarcerated.
Id.
¶ 5. When police executed the warrant, the defendant’s mother and several
children occupied the home.
Id. The officers located marijuana in the
closet of one of the three bedrooms within the home.
Id. ¶ 6. The
defendant, relying on
Brietag, argued that there was insufficient
evidence to convict him of possession of the marijuana.
Muniz,
1990-NMCA-105, ¶ 8. This Court disagreed.
Id. ¶ 15. Similar to the case
at bar, the jury in
Muniz was instructed that two or more people may
have possession of an object at the same time.
Id. We stated that
“[e]ven if someone else had knowledge of the presence of the marijuana in the
bedroom and exercised some control over it, [the] defendant could also have had
sufficient knowledge and control to be in constructive possession.”
Id.
We found dispositive the facts that the defendant confessed to being a drug
trafficker, kept a “black book” he used for his drug transactions at his
residence, used the bedroom in which the marijuana was found to keep his
correspondence, including a bill for the pager used in his drug transactions,
and that the marijuana found in the bedroom closet was packaged for sale.
Id.
¶¶ 15-17.
{29} We view the
teachings of
Brietag,
Garcia, and
Muniz to support
affirmance in this case. Here, the State presented additional evidence tying
the needle, spoon, and firearm to Defendant beyond just their respective locations
within a residence occupied by multiple people.
See State v. Howl,
2016-NMCA-084, ¶ 31,
381 P.3d 684 (holding that when a defendant does not have
exclusive control over the area where contraband is found “additional
circumstances, including the conduct of the accused, are required” to infer
constructive possession). First and foremost, the jury could reasonably have
accepted that the bedroom in question was Defendant’s based on the evidence
showing that Defendant was the only permanent male resident of the house and
that the bedroom was the only one that contained male clothing. Notably, the
male clothing was found not just in the same room, but in the same chest, as
the ammunition. The jury was also aware that Defendant admitted to handling the
pink firearm, and that the same caliber of bullets that were loaded in the pink
gun were also found in the chest in the bedroom. Significant, too, was
Defendant’s abrupt disappearance during the execution of the search warrant and
his attempted flight from the scene, conduct demonstrating a consciousness of
guilt.
See State v. Sizemore,
1993-NMCA-079, ¶ 11,
115 N.M. 753
(recognizing that flight can demonstrate consciousness of guilt). These
factors, together with Defendant’s admission that he was a recent drug user and
a drug addict, were sufficient to support an inference of constructive
possession. This is so notwithstanding the presence of women’s jewelry and
other belongings in Defendant’s bedroom.
See Rojo,
1999-NMSC-001, ¶ 19
(“In reviewing the sufficiency of evidence used to support a conviction, we
resolve all disputed facts in favor of the [s]tate, indulge all reasonable
inferences in support of the verdict, and disregard all evidence and inferences
to the contrary.”).
{30} Similarly,
there is sufficient evidence of knowledge and control to support the conviction
for possession of a firearm by a felon, and this despite the recovery of the
pink firearm in a common area of the house. Significant to our analysis are
Defendant’s admissions that he knew the firearm was in the residence and that
his fingerprints were probably on it, his ability to identify its unique color,
and the unopposed evidence that the firearm was suitable for firing ammunition
of the type found in the chest in Defendant’s bedroom.
See Jimenez,
2017-NMCA-039, ¶ 48 (“A defendant’s ability to exercise control over ammunition
may give rise to an inference of control over a firearm that can utilize that
ammunition.”).
{31} Consequently,
we hold that there is sufficient evidence that Defendant had knowledge and
exercised control over the methamphetamine and drug paraphernalia to support
the guilty verdict on these two charges. We hold as well that there was
sufficient evidence to convict Defendant for possession of a firearm by a
felon.
D. Ineffective Assistance of Counsel
{32} Defendant
makes two distinct claims of ineffective assistance of counsel. Specifically,
he argues that his trial counsel was not reasonably competent because he did
not give a closing argument, thereby communicating to the jury that Defendant
was guilty and did not have a defense. Additionally, Defendant asserts that his
trial counsel had a conflict of interest based on his concurrent representation
of another defendant in an unrelated criminal case who potentially could have
served as a witness against Defendant in this matter.
{33} This Court
reviews claims for ineffective assistance of counsel de novo.
See State v.
Boergadine,
2005-NMCA-028, ¶ 33,
137 N.M. 92,
107 P.3d 532. The right to
effective assistance of counsel is guaranteed by both the Federal and State
Constitutions.
See State v. Brazeal,
1990-NMCA-010, ¶ 14,
109 N.M. 752,
790 P.2d 1033. This Court will presume that a defendant received effective
assistance of counsel unless the defendant demonstrates that (1) counsel was
not reasonably competent, and (2) counsel’s incompetence caused the defendant
prejudice.
See State v. Sanchez,
1995-NMSC-053, ¶ 20,
120 N.M. 247,
901
P.2d 178.
{34} The record
here reveals that defense counsel’s decision to forego a closing argument was a
tactical decision. During a bench conference prior to closing argument, defense
counsel specifically represented that he was waiving the closing as a strategy
as he had successfully done previously in other cases. Defense counsel could
reasonably have decided that the State had not met its burden in establishing
the critical element of possession or that it might prove counterproductive to
argue in defense that the bedroom was not Defendant’s if the jury were
convinced to the contrary. Regardless, “this Court will not second guess the
tactics or strategy of defense counsel.”
State v. Gutierrez,
2005-NMCA-015, ¶ 20,
136 N.M. 779,
105 P.3d 332;
see also Sanchez,
1995-NMSC-053, ¶ 20. Thus, we hold that defense counsel’s waiver of closing
argument did not constitute ineffective assistance of counsel. Given this
conclusion, we need not address whether Defendant suffered any prejudice as a
result of counsel’s waiver of closing argument.
{35} Turning to
that portion of Defendant’s ineffective assistance claim premised on counsel’s
supposed conflict of interest, we analyze such claims differently than other
ineffective assistance claims.
See Rael v. Blair,
2007-NMSC-006, ¶ 10,
141 N.M. 232,
153 P.3d 657 (“[T]he analysis of an ineffective assistance of
counsel claim based on a conflict of interest requires a different analysis
than the more typical ineffective assistance of counsel claim based on lack of
competence and resulting prejudice.”). Under the governing analysis, this Court
presumes prejudice when counsel is burdened with an actual conflict of
interest.
Id. ¶ 11. “[T]o invoke such a presumption of prejudice, there
must be an actual, active conflict that adversely affects counsel’s trial
performance; the mere possibility of a conflict is insufficient.”
State v.
Martinez,
2001-NMCA-059, ¶ 24,
130 N.M. 744,
31 P.3d 1018;
see also Rael,
2007-NMSC-006, ¶ 11 (indicating that the burden is on the defendant to make
such a showing). Defendant has the burden to make this showing.
Rael,
2007-NMSC-006, ¶ 11.
{36} Defendant has
failed to show that defense counsel had an actual conflict that adversely
affected his trial performance. The potential conflict cited by Defendant
appears to be only hypothetical and unrelated to this case. Furthermore,
Defendant was aware of the potential conflict prior to trial, elected to waive
the conflict in writing, and affirmatively represented to the district court
that he understood that there was a potential conflict. Based on the record
before us, Defendant has not made a prima facie showing of ineffective
assistance of counsel. However, Defendant may bring an ineffective assistance
of counsel claim by way of a habeas proceeding.
See State v. Uribe-Vidal,
2018-NMCA-008, ¶ 27,
409 P.3d 992.
{37} Lastly, Defendant
asserts that the combination of all the previous errors warrant reversal of his
convictions based on the cumulative error doctrine. “The doctrine of cumulative
error applies when multiple errors, which by themselves do not constitute
reversible error, are so serious in the aggregate that they cumulatively
deprive the defendant of a fair trial.”
State v. Roybal,
2002-NMSC-027,
¶ 33,
132 N.M. 657,
54 P.3d 61. We have no occasion to address this argument in
light of our holdings that the district court did not commit any errors, much
less multiple errors.
{38} For the
aforementioned reasons, we affirm.
EMIL J. KIEHNE, Judge Pro Tempore
DANIEL J. GALLEGOS, Judge Pro Tempore