STATE OF NEW MEXICO v. GREGORY M. HOBBS
NO. 32,838
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
October 5, 2015
Freddie J. Romero, District Judge
Opinion Number:
Paula E. Ganz, Assistant Attorney General
Santa Fe, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Tania Shahani, Assistant Appellate Defender
Santa Fe, NM
for Appellant
VANZI, Judge.
{1} Defendant Gregory Marvin Hobbs appeals his conviction for voluntary manslaughter with a firearm enhancement, contrary to
BACKGROUND
{2} It is undisputed that Defendant shot and killed Ruben Archuleta, Jr. (Ruben Jr.) and Ruben Archuleta, Sr., also known as Hammer (Victim), during an altercation that occurred on June 15, 2012. The State did not prosecute Defendant for Ruben Jr.‘s death because it determined that the killing of Ruben Jr. was legally justified. Defendant was, however, charged with and convicted for voluntary manslaughter for causing Victim‘s death. Defendant appeals his conviction and raises three independent issues. The facts relevant to each issue will be discussed below.
Courtroom Closure
{3} Britini S., a minor, witnessed the struggle between Defendant and Victim. She testified at Defendant‘s preliminary hearing and was later subpoenaed by Defendant to testify at his trial. Defendant considered Britini‘s testimony to be crucial to his theory of self-defense.
{4} Britini failed to appear on the first day of trial, so the district court issued a bench warrant for her arrest. After her father called the judge‘s chambers to express concern for his daughter‘s safety, the judge held a conference regarding the conditions under which Britini would testify. The judge and counsel for the State and Defendant interviewed Britini in the presence of Defendant and Britini‘s mother.
{5} Britini, who was six and one-half months pregnant at the time of trial, explained that she was not comfortable testifying in front of an audience because she feared retaliation from Victim‘s family. She stated that approximately two weeks after she testified at the preliminary hearing she was physically assaulted by a girl whom she did not know, but who was with two of Victim‘s sons. Britini informed the court that she was afraid that she would not be able to defend herself if she were attacked again due to her pregnancy, and she felt like she had to watch her back. Likewise,
{6} Defense counsel proposed that Britini be deemed unavailable and suggested that Britini‘s testimony from the preliminary hearing be admitted in lieu of testimony at the trial. The State agreed that Britini‘s fear of retaliation was reasonable because her attacker had been in the company of Victim‘s sons. However, the State opposed using Britini‘s testimony from the preliminary hearing and argued that the situation did not rise to the level of deeming Britini unavailable. The judge also expressed his concern for Britini‘s safety but stated that he did not think that he had the authority to exclude the public from the proceedings. In response, defense counsel asked the judge, “[n]ot even upon stipulation of the parties[,] your honor?” Counsel then stated that “the defense would be happy to stipulate for the purpose of her testimony that the court could be cleared . . . of everyone but the bailiffs [and] parties[.]” The State also agreed to the stipulation.
{7} The judge and counsel for the State and Defendant discussed Defendant‘s rights, Victim‘s rights, the public‘s rights, and how these rights could be affected if the district court agreed to partially close the courtroom during Britini‘s testimony. After careful consideration, and based upon the parties’ stipulation to a partial closure of the courtroom, the district court decided to exclude members of Victim‘s and
{8} On appeal, Defendant argues that the partial courtroom closure during Britini‘s testimony violated his Sixth Amendment right to a public trial, despite the fact that his defense counsel stipulated to the closure. He claims that the unconstitutional closure constitutes structural error requiring a new trial. He further argues that structural errors are subject to a relaxed preservation requirement and that they are not subject to a harmless error analysis. The State, on the other hand, asserts that Defendant did not preserve this issue for appellate review, that Defendant stipulated to the closure, and that Defendant‘s stipulation has the effect of a waiver of this issue on appeal.
{9} “In a criminal trial, the accused shall enjoy the right to a speedy and public trial.” State v. Turrietta, 2013-NMSC-036, ¶ 1, 308 P.3d 964 (citing
{10} As an initial matter, Defendant appears to concede that he did not preserve this issue for appellate review, and we agree. See
{11} “A structural error is a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” State v. Nguyen, 2008-NMCA-073, ¶ 9, 144 N.M. 197, 185 P.3d 368 (internal quotation marks and citation omitted). “If a hearing is closed in violation of the Constitution, the denial of
{12} When determining the constitutionality of a courtroom closure, our Supreme Court in Turrietta adopted the “overriding interest” standard, discussed by the United States Supreme Court in Waller, 467 U.S. 39, and Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984). See Turrietta, 2013-NMSC-036, ¶¶ 17, 19. In Waller, the United States Supreme Court held that a closure “over the objections of the accused” must meet the following “overriding interest” four-pronged test:
[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the [district] court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.
{13} Defendant asserts that none of these prongs were satisfied. Specifically, he argues that: (1) neither party demonstrated an overriding interest for the closure; (2) the closure was overly broad; (3) the district court failed to adequately assess possible alternatives to closure; and (4) the district court failed to make adequate findings to support closure. Conversely, the State contends that the four prongs were met in this case. It contends that: (1) Britini‘s safety and the safety of her unborn child were the
{14} “Fundamental rights, including constitutional rights, can be waived.” State v. Singleton, 2001-NMCA-054, ¶ 11, 130 N.M. 583, 28 P.3d 1124. While “[s]ome rights are considered so personal to the defendant they necessitate inquiry into the individual defendant‘s decision-making process[,] . . . [o]ther rights generally pertaining to the conduct of trial may be waived through counsel and without an inquiry on the record into the validity of the waiver.” Id. ¶ 12. “Defense attorneys make a wide variety of tactical decisions during the course of a criminal trial, and many of these decisions implicate the constitutional rights of a defendant.” Nguyen, 2008-NMCA-073, ¶ 24. “A personal waiver by the defendant is not required for all of these decisions.” Id. Furthermore, the United States Supreme Court has “uniformly
{15} In this case, Defendant believed that Britini‘s testimony was critical and would bolster his theory of self-defense. But Britini did not want to testify in front of an audience because she feared retaliation from Victim‘s family. After the district court denied defense counsel‘s request to use her preliminary hearing testimony in lieu of having her testify at trial, defense counsel proposed closing the courtroom for
{16} Because we conclude that Defendant expressly consented to the closure to make his witness feel more comfortable during her testimony, we need not determine whether the Waller “overriding interest” four-pronged standard was met. See Waller, 467 U.S. at 47 (holding that, under the Sixth Amendment, a courtroom closure must meet the four-prong test when the accused has objected to the courtroom closure); see also Addai, 776 F.3d at 534 (explaining that, in a case where the defendant expressly consents to a courtroom closure, the court is not required to balance the interests described in Waller). Accordingly, we affirm on this issue.
Ineffective Assistance of Counsel
{17} Defendant claims that he received ineffective assistance of counsel because his attorney failed to retain or call an expert on bullet trajectories. Defendant contends that such expert testimony could have corroborated his self-defense theory and effectively rebutted the State‘s evidence. Defendant raises this issue as an alternative to his newly discovered evidence argument, which we discuss later in this Opinion.
{19} Defendant bears the burden of showing that his counsel‘s performance was deficient and that he suffered prejudice as a result of the deficiency. See State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. “When an ineffective assistance claim is first raised on direct appeal, we evaluate the facts that are part of the record.” Id. “If facts necessary to a full determination are not part of the record, an ineffective assistance claim is more properly brought through a habeas corpus petition[.]” Id.; see also State v. Herrera, 2001-NMCA-073, ¶ 37, 131 N.M. 22, 33 P.3d 22 (“When the record on appeal does not establish a prima facie case of ineffective assistance of counsel, this Court has expressed its preference for
{20} Here, the jury convicted Defendant of voluntary manslaughter on February 1, 2013. On February 14, 2013, defense counsel filed a motion for a new trial and asserted that, while preparing for a different trial on February 6, 2013, she discovered that Nelson Welch, an expert witness whom she had retained in a different case, is qualified to give expert opinions regarding situations where two people are struggling over a weapon, as well as weapon discharges, trajectory, and angles of bullets. Had she known about his expertise in this area before Defendant‘s trial, defense counsel says she would have hired Welch to testify on behalf of Defendant because he would have provided useful information central to Defendant‘s theory of self-defense. For the reasons that follow, we are not persuaded that defense counsel‘s failure to hire Welch rises to the level of ineffective assistance of counsel.
{21} Even if Defendant could show that counsel‘s performance was deficient because there was no tactical or strategic basis for failing to retain or consult with Welch or another trajectory expert, see State v. Aragon, 2009-NMCA-102, ¶¶ 9-15, 147 N.M. 26, 216 P.3d 276, Defendant “must demonstrate that his counsel‘s errors prejudiced his defense such that there was a reasonable probability that the outcome of the trial would have been different.” Id. ¶ 16 (internal quotation marks and citation
{22} Defendant‘s claim of prejudice is based on mere speculation. Without specifying what an expert would have testified to, Defendant asserts that the expert “could have provided useful information . . . central to the theory of defense[;]” “could have reviewed Dr. Andrews’ analysis to confirm or contest his findings[;]” “could have corroborated Dr. Andrews’ theories if accurate, and if contradictory, would have provided necessary assistance for effective cross-examination of those theories” and “could have offered scientific evidence” that would have bolstered his
{23} Therefore, we conclude that Defendant has not established a prima facie case of ineffective assistance of counsel. See State v. Grogan, 2007-NMSC-039, ¶ 11, 142 N.M. 107, 163 P.3d 494 (“The defendant has the burden to show both incompetence and prejudice.“). Absent a prima facie case of ineffective assistance of counsel, Defendant‘s remedy is through habeas proceedings. State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (stating that “[t]his Court has expressed its preference for habeas corpus proceedings over remand when the record on appeal does not establish a prima facie case of ineffective assistance of counsel“).
Denial of Request for New Trial
{24} Defendant asserts that the district court abused its discretion in denying his request for a new trial on three grounds: (1) juror bias, (2) newly discovered evidence, and (3) the district court‘s failure to instruct the jury regarding the timing of a break during Defendant‘s closing argument. “The general rule is that a motion for a new trial is not favored and this Court will only reverse a denial of a motion for new trial upon a showing of a clear abuse of discretion by the trial court.” State v. Curry, 2002-NMCA-092, ¶ 18, 132 N.M. 602, 52 P.3d 974.
{25} Defendant asserts that his right to a fair trial was compromised because a juror failed to disclose during voir dire that he knew one of the State‘s witnesses. See State v. Johnson, 2010-NMSC-016, ¶ 35, 148 N.M. 50, 229 P.3d 523 (“The Sixth Amendment of the United States Constitution guarantees defendants the right to trial by a fair and impartial jury and is implicated during voir dire.“); State v. McFall, 1960-NMSC-084, ¶ 6, 67 N.M. 260, 354 P.2d 547 (emphasizing that the New Mexico Constitution guarantees a trial by an “impartial” jury). Specifically, he contends that the juror concealed that he knew witness Trisha Hart during voir dire.
{26} Tricia Hart investigated the crime scene on behalf of the OMI and was called to testify by the State. Prior to testifying, and outside the presence of the jury, Hart disclosed that she knew the juror from church and that the juror probably knew her “as Jerry‘s wife.” Defense counsel stated that she had no objection to the juror, as long as the relationship was not a close and personal one. Although Defendant did not object to the juror at the time, he later argued in his post-trial motion and now on appeal that the district court erred by not asking the juror whether his acquaintance with Hart would affect his impartiality. Additionally, Defendant contends that he would have used a peremptory challenge to excuse the juror if the juror had disclosed his connection to Hart during voir dire. In its response to Defendant‘s motion for a
{27} While we recognize that “a lone biased juror undermines the impartiality of an entire jury,” State v. Gardner, 2003-NMCA-107, ¶ 10, 134 N.M. 294, 76 P.3d 47, “Defendant bears the burden to establish that the jury was not fair and impartial, and must demonstrate bias or prejudice on the part of the remaining jurors.” State v. Gallegos, 2009-NMSC-017, ¶ 22, 146 N.M. 88, 206 P.3d 993. Here, Defendant did not object to Hart‘s disclosure about the juror and made no attempt to inquire further into any relationship between Hart and the juror. Further, he makes no real argument that the juror was biased nor does he challenge the juror‘s sworn statement that the juror did not recognize Hart at the time of trial and only realized that they attended the same church when Hart introduced herself on the Sunday after the trial had concluded. Defendant has not come forth with any evidence that the juror recognized or knew Hart during the trial or that they had any relationship requiring the district court to hold an evidentiary hearing. Accordingly, we hold that Defendant has not sustained his burden of showing that this juror was biased or impartial. See State v. Mann, 2002-NMSC-001, ¶ 20, 131 N.M. 459, 39 P.3d 124 (“The essence of cases
Newly Discovered Evidence
{28} This is an alternative argument to Defendant‘s ineffective assistance of counsel claim. It is unclear when counsel learned about Welch‘s trajectory expertise. In the State‘s response to the motion for a new trial, the State argued that defense counsel knew about Welch and his expertise before Defendant‘s trial because Welch had performed an examination of a firearm and viewed evidence in the other case months before Defendant‘s trial. During the hearing on Defendant‘s motion for a new trial, defense counsel advised the district court only that she hired Welch as a firearms expert in the other case, Welch has been an expert witness since 1974, and that she did not learn about his trajectory expertise until after Defendant‘s trial. The district court did not make a finding as to when defense counsel learned about Welch‘s trajectory expertise. Instead, the district court determined that the proffered expert testimony did not constitute newly discovered evidence or grounds for a new trial. The court based its decision on the fact that defense counsel had already argued trajectory issues in closing argument based on testimony presented to the jury.
{30} A motion for a new trial based on an allegation of newly discovered evidence must meet six requirements to be granted: (1) “it will probably change the result if a new trial is granted;” (2) “it must have been discovered since the trial;” (3) “it could not have been discovered before the trial by the exercise of due diligence;” (4) “it must be material;” (5) “it must not be merely cumulative; and” (6) “it must not be merely impeaching or contradictory.” State v. Garcia, 2005-NMSC-038, ¶ 8, 138 N.M. 659, 125 P.3d 638 (internal quotation marks and citation omitted).
{31} The allegedly newly discovered evidence was Welch, an expert in bullet trajectory who had previously been retained by defense counsel in a separate case. Defendant claims that Welch could have testified about the trajectory in this case and, in particular, the position of Victim‘s body when the bullets entered his body. According to Defendant, the angle of the lethal shot could have assisted his self-
{32} “Given the wide latitude we provide to district courts in resolving motions for a new trial based on newly discovered evidence, we cannot conclude that an abuse of discretion occurred on these facts.” State v. Gallegos, 2011-NMSC-027, ¶ 77, 149 N.M. 704, 254 P.3d 655; see also State v. Sosa, 1997-NMSC-032, ¶ 16, 123 N.M. 564, 943 P.2d 1017 (explaining that motions for a new trial based on newly discovered evidence are “not encouraged” and the “denial of such a motion will only be reversed if the district court has acted arbitrarily, capriciously, or beyond reason“);
Jury Break
{33} During Defendant‘s closing argument, the State asked for a bench conference and among other issues, asked the district court to admonish the spectators for their disruptive actions. Following the bench conference, the district court sent the jury out for a break in order to address the trial spectators. The court did not inform the jury of the reason for the break, and Defendant did not object or request a curative instruction to address the timing of the break.
{34} After the jury convicted him of voluntary manslaughter, Defendant argued that he was entitled to a new trial because the timing of the break may have left the jury with the impression that defense counsel did or said something inappropriate to cause the break and that the appearance of impropriety prejudiced him. The district court denied Defendant‘s request for a new trial, and Defendant raises the same argument on appeal.
{35} Defendant acknowledges that he did not preserve this issue for appellate review, and he raises this cursory argument as fundamental error pursuant to
{36} Defendant provides no argument concerning this hypothetically perceived prejudice to him based on the timing of the break and the district court‘s failure to give a curative instruction. Indeed he contends only that the timing “might have led the jury to believe that defense counsel‘s conduct caused the break.” (Emphasis added.) This equivocal statement simply does not rise to the level of fundamental error and does not demonstrate the existence of circumstances that “shock the conscience.” Therefore, we hold that the district court did not abuse its discretion in denying Defendant a new trial on this basis.
CONCLUSION
{37} For the foregoing reasons, we affirm.
{38} IT IS SO ORDERED.
LINDA M. VANZI, Judge
MICHAEL E. VIGIL, Chief Judge
MICHAEL D. BUSTAMANTE, Judge