5 N.M. 759
N.M. Ct. App.2014Background
- Defendant faced multiple related charges of criminal sexual contact; the trials were severed but before the same judge.
- In the first prosecution Defendant entered an Alford plea; the court accepted the plea but initially deferred adjudication of guilt pending resolution of related charges.
- Before the second prosecution the State moved to have the court adjudicate guilt on the first plea so the conviction could be used to impeach Defendant if he testified in the second trial; the court adjudicated guilt and ruled the conviction admissible for impeachment.
- Defense objected pretrial but then Defendant, after the court’s ruling, preemptively disclosed on direct examination that he was a convicted felon; the State also asked impeachment questions on cross-examination and referenced the conviction in closing.
- Jury convicted Defendant on one count in the second prosecution; Defendant appealed, arguing (1) the prior conviction was improperly used for impeachment and (2) trial counsel provided ineffective assistance by failing to conduct redirect and other alleged omissions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of appeal after preemptive disclosure of prior conviction | State: preemptive disclosure strategically waives appellate review (Ohler) | Defendant: objected pretrial and preemptive disclosure was tactical to lessen harm; preserved issue | Court: preserved — New Mexico precedent allows appeal when court made prior ruling and defendant later preemptively disclosed |
| Admissibility of conviction from Alford plea for impeachment | State: adjudicated guilt on first plea made conviction available under Rule 11-609(A)(1) | Defendant: Alford plea (and deferred sentencing) should not count as a conviction for impeachment | Court: admissible — adjudication of guilt constitutes a conviction for impeachment; no abuse of discretion |
| Timing/process of district court adjudication to enable impeachment | State: court acted within discretion to adjudicate earlier so impeachment available | Defendant: court erred by adjudicating guilt to permit impeachment in the related trial | Court: no error — no authority precluding adjudication prior to sentencing; procedure upheld |
| Ineffective assistance of counsel (failure to redirect, certain direct questions, proof about shop opening) | Defendant: counsel’s omissions prejudiced outcome | State: record insufficient; trial strategy; no prima facie showing of prejudice | Court: claim not developed on record; presumption of competency; remand denied — direct-appeal relief inappropriate; advise habeas/collateral proceedings |
Key Cases Cited
- Ohler v. United States, 529 U.S. 753 (U.S. 2000) (preemptive testimony after an adverse in limine ruling may waive appellate review — discussed and distinguished)
- State v. Zamarripa, 145 N.M. 402 (N.M. 2009) (defendant may preserve error after preemptively introducing evidence when the court previously ruled against exclusion)
- State v. Keener, 97 N.M. 295 (N.M. Ct. App. 1981) (adjudication of guilt is a conviction for impeachment purposes even if judgment and sentence not yet filed)
- State v. Thang, 41 P.3d 1159 (Wash. 2002) (defendant who testifies about convictions after losing motion in limine does not forfeit appellate review)