STATE OF NEW MEXICO v. NIEVES SONNY ORTEGA
No. 33,864
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
June 9, 2014
Opinion Number: __________
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Mark Terrence Sanchez, District Judge
Steven James Forsberg, Assistant Appellate Defender
Albuquerque, NM
for Appellant
Gary K. King, Attorney General
Ann M. Harvey, Assistant Attorney General
Santa Fe, NM
for Appellee
VIGIL, Chief Justice.
{1} Niеves Sonny Ortega (Defendant) appeals directly to this Court from a life sentence stemming from a conviction of first-degree murder. Defendant was convicted of one count of willful and deliberate murder, contrary to
FACTS
{2} On the night of January 29, 2010, Adam Laureles (Laureles) drove to the residence of a friend in Hobbs, New Mexico to pick up his brother, Chris Laureles (Victim.) Victim was listening to music and drinking beer with a small group of people. At around midnight, a member of the group left and returned with Defendant and Mark Ruiz (Co-defendant).
{3} Co-defendant threatened Victim over money Victim allegedly owed to him and directed Victim to leave with him. Victim refused. Co-defendant pulled out a handgun, and Defendant placed his hand in his pocket making it aрpear that he also had a gun. Co-defendant told Victim to take off his jewelry, but Victim refused. Co-defendant wanted the jewelry or Victim‘s car as collateral for the debt allegedly owed to him. Defendant walked outside the house, and was followed by Laureles, Victim, and Co-defendant.
{4} Upon going outside, Laureles noticed a car parked on the street behind Victim‘s car, which he believed to be Defendant‘s car. Victim and Co-defendant walked over to Victim‘s car and Victim asked Co-defendant to get in the car with him. Victim got into the driver‘s seat while Co-defendant remained standing outside the car, next to the driver‘s side. Co-defendant reached into Victim‘s car, grabbed a flashlight, and hit Victim on the head with it. Victim started the car, put it in reverse, and hit the gas. Victim backed into Defendant‘s car but before he could take off, Defendant and Co-defendant opened fire. Once the shooting stoрped, Victim jumped out of the passenger side door, took several steps, collapsed, and died on the scene. The Office of the Medical Investigator (OMI) determined that Victim died from gunshot wounds to the chest, abdomen, and left arm, and ruled the death a homicide.
DISCUSSION
I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENSE WITNESS CO-DEFENDANT USE IMMUNITY
{5} During its case in chief, defense counsel informed the district court that he intended to call Co-defendant as a witness, but that defense counsel expected him to refuse to testify on Fifth Amendment grounds. In chambers, Co-defendant confirmed that he would assert his constitutional right against self-incrimination if called to testify, but asserted that he would testify if he was granted use immunity. Defense counsel requested that the district court grant Co-defendant use immunity to testify under
{6} Defendant argues that the district court erred in denying his motion to grant Co-defendant use immunity. Defendant argues that the district court failed to conduct a balancing test as required under State v. Belanger, 2009-NMSC-025, ¶ 38, 146 N.M. 357, 210 P.3d 783. Defendant also argues that the district court erred because it appeared to make its decision based on the State‘s concerns about conflicting out Co-defendant‘s case to another judicial district. According to Defendant, these concerns should not havе outweighed his right to present a defense. While we agree with Defendant that the district court‘s apparent reasoning for denying witness use immunity was not appropriate, we affirm the district court‘s decision on other grounds.
{7} We review a district court‘s decision to grant witness use immunity for an abuse of discretion. See id. ¶ 38. “[W]e will affirm the trial court‘s decision if it was right for any reason so long as it is not unfair to the appellant.” See State v. Gallegos, 2007-NMSC-007, ¶ 26, 141 N.M. 185, 152 P.3d 828.
{8} Under a grant of use immunity, the State promises to refrain from using a witness‘s testimony, and any evidence derived from that testimony, in any future prosecution of the witness. Belanger, 2009-NMSC-025, ¶ 11; see also
{9} Under
places the initial burden on the accused. The defendant must show that the proffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree. If the defendant meets this initial burden, the district court must then balance the defendant‘s need for the testimony against the government‘s interest in opposing immunity.
Belanger, 2009-NMSC-025, ¶ 38.
{10} We hold that the district court did not abuse its discretion in dеnying Defendant‘s motion to grant Co-defendant witness use immunity because Defendant failed to meet his burden under Belanger. Under Belanger, Defendant was required to make a proffer as to what testimony Co-defendant would give. See id. (stating that the defendant must demonstrate that “the proffered testimony” is material to his or her defense). Although defense counsel pointed out discrepancies and credibility problems with different prosecution witnesses, he did not make a proffer as to what testimony Co-defendant would give. The district court asked defense counsel if he would like to “address all legs of the test,” but he declined, instead deferring to the State‘s objection. At this point, defense counsel should have made a proffer or could have requested immunity limited to an in camera hearing, which would have allowed the district court to hear Co-defendant‘s testimony and gauge its importance. See id. ¶ 39 (stating that an in camеra interview “for the purpose of understanding what the witness‘s testimony at trial will be” does not bind the district court at trial). Defense counsel failed to do so.
{11} Defendant argues that defense counsel may have felt that a proffer was unnecessary, given that the district court appeared to make its decision on the cost and inconvenience to the State. This argument is
{12} Belanger also requires the district court to make a finding that the witness‘s “proffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree.” Id. At trial, defense counsel only stated that Co-defendant‘s testimony could help the jury resolve alleged discrepancies in the testimony of the State‘s witnesses. This argument is spеculative and fails to address how Defendant‘s defense would have been prejudiced without Co-defendant‘s testimony.
{13} Although we affirm the district court‘s ultimate decision to deny Co-defendant witness immunity, we disagree with its apparent reasoning. As noted by Defendant, the district court appeared to make its decision based on the cost and inconvenience to the State. Under Belanger, “the [s]tate must demonstrate a persuasive reason that immunity would harm a significant governmental interest.” Id. Furthermore, a “desire for judicial expediency provides no excuse to short-change a defendant in his [or her] quest for constitutional protection.” Id. ¶ 55. Therefore, we reiterate that once a defendant meets his or her initial burden, the state must present substantive reasons why witness use immunity should not be granted. See id. ¶ 38. We take this opportunity to stress that mere inconvenience to the State is not a pеrsuasive reason for a district court to deny witness use immunity.
II. THE ADMISSION OF SURROGATE TESTIMONY REGARDING THE VICTIM‘S TOXICOLOGY REPORT THROUGH THE STATE‘S MEDICAL EXPERT WAS HARMLESS ERROR
{14} At trial, Dr. Ross Zumwalt, Chief Medical Investigator for the State of New Mexico, testified that a toxicology report had been performed on the blood and vitreous fluid in Victim‘s body. He stated that Victim‘s blood alcohol concentration was .018, which he described as a “small amount” compared to the standard of .08 for driving under the influence. He also said that marijuana metabolites were detected in Victim‘s blood, indicating that sometime in the past Victim had used marijuana. Finally, Dr. Zumwalt stated that amphetamine and methamphetamine were also found in Victim‘s body. Dr. Zumwalt testified that the toxicology testing was performed by the Scientific Laboratory Division (SLD) of the New Mexico Department of Health and that the report was signed by Dr. Rong-Jen Hwang, Bureau Chief of the SLD‘s Toxicology Bureau.
{15} At trial, defense counsel objected to Dr. Zumwalt‘s testimony regarding the toxicology report on confrontation grounds. Arguing that Crawford v. Washington, 541 U.S. 36 (2004), requires the analyst who actually performed the test to testify. The district court denied Defendant‘s motion, concluding that there was no violation of Defendant‘s confrontation rights.
{16} On appeal, Defendant argues that Dr. Zumwalt‘s testimony regarding Victim‘s toxicology report violated his constitutional right to confront witnesses because: (1) it was testimonial, (2) it was offered to prove the truth of the matter asserted, (3) no testimony was given stating that Dr. Hwang was unavailable, and (4) Defendant did not have an opportunity to cross-examine Dr. Hwang.
{17} Appellate courts review de novo the question of whether the Confrontation Clause has been violated by the admission of hearsay evidence. State v. Tollardo, 2012-NMSC-008, ¶ 15, 275 P.3d 110. Confrontation Clause violations are subject to harmless error review. See State v. Johnson, 2004-NMSC-029, ¶ 8, 136 N.M. 348, 98 P.3d 998 (stating that non-structural federal constitutional errors are subject tо a harmless error analysis).
{18} Pursuant to the
{19} Dr. Zumwalt testified that the OMI orders toxicology reports when it feels that drugs or alcohol might be a key factor in a death. The State elicited Dr. Zumwalt‘s testimony about Victim‘s toxicology report to prove that Victim did not die from drug or alcohol use, but rather from gunshot wounds. Because the report was compiled “to establish or prove рast events potentially relevant to later criminal prosecution“, id., we conclude the statements concluded therein were testimonial. Furthermore, the statements concerning toxicity were offered for the truth of the matter asserted (that Victim‘s cause of death was not alcohol or drugs), the State did not argue that Dr. Hwang was unavailable to testify at trial, and Defendant was not afforded an opportunity to cross-examine him. Therefore, pursuant to Navarette, we hold that Dr. Zumwalt‘s testimony regarding the toxicology reports violated Defendant‘s confrontation rights under the Sixth Amendment. While we conclude that there was a confrontation violation, we also conclude that the violation was harmless error. See Tollardo, 2012-NMSC-008, ¶ 45 (“When a statement is admitted in violation of the Confrontation Clause, we next inquire into whether the error was harmless, and [t]o preclude reversal, the error must be harmlеss beyond a reasonable doubt.“) (alteration in original) (internal quotation marks and citation omitted)).
{20} Harmless errors are “constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may . . . be deemed harmless, not requiring the automatic reversal of the conviction.” Johnson, 2004-NMSC-029, ¶ 8 (internal quotation marks and citation omitted). The “central focus’ . . . is ‘whether there is a reasonable possibility’ . . . that ‘the erroneous evidence might have affected the jury‘s verdict.‘” Tollardo, 2012-NMSC-008, ¶ 40 (quoting Johnson, 2004-NMSC-029, ¶ 11). The Court‘s focus “is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Johnson, 2004-NMSC-029, ¶ 9 (internal quotation marks and citation omitted). “[W]hen reviewing an error‘s role in the trial, courts may, depending upon the circumstances of the cases before them, examine ‘the importance оf the [erroneously admitted evidence] in the prosecution‘s case‘, as well as ‘whether the [error] was cumulative’ or instead introduced new facts.” Tollardo, 2012-NMSC-008, ¶ 43 (alteration in original) (quoting Johnson, 2004-NMSC-029, ¶ 11).
{21} The State suggests that Dr. Zumwalt‘s testimony about the toxicology reports was used to confirm that neither alcohol, nor drugs was the cause of Victim‘s death. Defendant argues that he was prejudiced by the admission of Dr. Zumwalt‘s testimony because the toxicology report showed Victim‘s BAC was under the legal limit, thus undermining Defendant‘s theory that Victim did not resist kidnapping because he was impaired.1 We review the effects of the Confrontation Clause violation for harmless error on both Defendant‘s murder conviction and attempted kidnapping conviction. See Tollardo, 2012-NMSC-008, ¶ 44 (“[B]ecause an error may be prejudicial with respect to one conviction, but harmless with respect to another, courts must separately assess the effect the error mаy have
had on each of the defendant‘s convictions.“)
{22} With respect to the first-degree murder conviction, we hold that it was harmless
{23} Next we turn to the constitutional error‘s effect on Defendant‘s attempted kidnapping conviction. Defendant asserts that “[i]f the victim was intoxicated, it was more likely that he was not intimidated into going with [Co-defendant] out to his car and thus not kidnapped.” He further asserts that “the toxicology report and testimony tend to show that [Victim] was sober and more likely not an active disputant but rather someone responding to a threat.” First, as a practical matter, Defendant‘s theory that Victim was too impaired to consent would have done little to further his defense. Generally, evidence of intoxication typically serves to defeаt a consent defense. See 1 Charles E. Torcia, Wharton‘s Criminal Law § 46, at 304 (15th ed. 1993) (“An apparent consent is ineffective if, by reason of intoxication, the victim is unable to make a reasonable judgment as to the nature or harmfulness of the conduct in question, or if, by reason of force, threatened force, or fraud, he is induced to give such consent.“). The only relevance that Victim‘s toxicity would have to a defense would be to show that Victim was indeed sober, thereby had capacity, and did consent by voluntarily going outside with Defendant and Co-defendant, which would normally be a defense to kidnapping. See State v. Sotelo, 2013-NMCA-028, ¶ 30, 296 P.3d 1232, cert. denied, 2013-NMCERT-001, 299 P.3d 863 (“Kidnapping may occur once the [v]ictim‘s physical association with [the d]efendant [is] no longer voluntary.” (alterations in original) (internal quotation marks and citation omitted)). Rather than arguing that he was prejudiced by a showing that Victim was sober, it appears to the Court that hе should be arguing that Victim was sober and had capacity.
{24} Addressing the Johnson factors, we first note that evidence of Victim‘s toxicity was not important to the State‘s attempted kidnapping case where it was proffered to establish the cause of death. Further, as discussed above, evidence of Victim‘s toxicity would have gone to his voluntary consent to walking outside, and evidence of his being closer to sober (and thereby able to consent) would only have helped Defendant‘s case. Next, other evidence presented at trial tended to show that Victim did not exhibit any substantial level of impairment. For example, Laureles testified that Victim actively resisted Defendant‘s and Co-defendant‘s attempts to get Victim to go outside and take off his jewelry. Based on this evidence, and considering that evidence of toxicity went to the element of another crime, we can infer that the jury‘s vеrdict was rendered despite the improperly admitted statements in the toxicology report. Again, we see no reasonable possibility that its admission contributed to the jury‘s guilty verdict.
{25} With respect to Defendant‘s remaining convictions, we cannot see any way in which the statements in the toxicology report could be used as a basis for rendering a guilty verdict. With no logical connection to Victim‘s toxicity, the guilty verdicts rendered were certainly unattributable to improperly admitted testimonial statements. Accordingly, we hold that the district court‘s admission of Dr. Zumwalt‘s testimony regarding the toxicology report was harmless error because we cannot conclude that there is any reasonable possibility that improperly admitted testimony
III. DEFENDANT‘S MULTIPLE CONSPIRACY CONVICTIONS VIOLATE DOUBLE JEOPARDY
{26} Defendant was convicted on three separate counts of conspiracy: conspiracy to commit first-degree murder, conspiracy to commit robbery, and conspiracy to commit first-degree kidnapping. Defendant argues that these convictions violate his double jeopardy rights under the United States and New Mexico Constitutions. The State concedes Defendant‘s double jeopardy claim with respect to conspiracy to commit kidnapping and conspiracy to commit robbery. We agree with Defendant and the State and hold that the facts of this case support only one conspiracy, conspiracy to commit first-degree murder.
{27} “The defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment.”
{28} The evidence adduced at trial supports the existence of one conspiracy. Defendant and Co-defendant shared a common goal, to collect a debt from Victim. All three charged conspiracies occurred at or near the residence of Victim‘s friend and unfolded over a relatively short period of time. Furthermore, the actions of Defendant and Co-defendant overlapped and were mutually dependent. See id. ¶ 61. Finally, the three charged conspiracies involved only one victim. See id. ¶ 57. Therefore, we hold that there was only one conspiracy and that Defendant‘s double jeopardy rights were violated. Accordingly, we vacate Defendant‘s convictions for conspiracy to commit robbery and сonspiracy to commit first-degree kidnapping.
IV. THE JURY WAS PROPERLY INSTRUCTED
{29} During the preparation of jury instructions in chambers, the district court asked if there were any objections to the following accessory instruction: “The defendant may be found guilty of a crime even though he himself did not do the acts constituting the crime.” The State asserted that the instruction should say “murder” instead of “crime.” Defense counsel pointed out that
{30} During its deliberations, the jury sent the district court a question аsking whether the accessory instruction applied to all counts or only the murder count. The State took the position that the district court could instruct the jury that the accessory instruction only applies to the murder charge. Defense counsel stated that he did not think the jury
{31} Defendant argues that the jury was improperly instructed on accessory liability because accessory liability only should have applied to the murder count. Defendant contends that the district court had a duty to clarify the instruction regardless of the arguments of counsel. We hold that the jury was properly instructed and that any alleged error regarding the accessory instruction was invited error.
{32} Defendant was charged with willful and deliberate first-degree murder. The uniform jury instruction on accessory liability that applies to willful and deliberate first-degree murder,
{33} Defendant asks us to review the accessory jury instruction for fundamental error under State v. Foxen, 2001-NMCA-061, ¶ 12, 130 N.M. 670, 29 P.3d 1071. In Foxen, the Court of Appeals held that it would review deficient jury instructions resulting from oversight or neglect for fundamental error. Id. Defendant argues that the deficient jury instruction in his case was a result of oversight or neglect because his attorney was “mistaken about the law.”
{34} Defendant‘s case is distinguishable from Foxen. The jury instruction on accessory liability in Defendant‘s case was the result of invited error, not oversight or neglect. “The doctrine of fundamental error cannot be invoked to remedy the defendant‘s own invited mistakes.” State v. Campos, 1996-NMSC-043, ¶ 47, 122 N.M. 148, 921 P .2d 1266. New Mexico courts “have consistently followed the ethical maxim that no party can profit by his own wrong.” Proper v. Mowry, 1977-NMCA-080, ¶ 69, 90 N.M. 710, 568 P.2d 236 (internal quotation marks and citation omitted) (holding that a jury instruction stating that defendant in a slander action must have entertained serious doubts as to the statements was invited error). A party may not be rewarded with a new trial when it invites jury instruction error and subsequently complains about that very error. See Estate of Gutierrez ex rel. Jaramillo v. Meteor Monument, L.L.C., 2012-NMSC-004, ¶ 34, 274 P.3d 97 (holding that an error in a jury instruction concerning the scope of employment in a negligent supervision case was invited and did not entitle the defendant to a new trial).
{35} Defense counsel invited error in the jury instructions in two respects. First, he objected to the State‘s proposed modification of the jury instruction during the formulation of the instructions. Second, he objected to reinstructing the jury after the jury expressed confusion about the application of the accessory instruction. Defense counsel was mistaken about the law in this regard. “The decision to issue additional jury instructions generally lies within the sound discretion of the [distriсt] court.” State v. Juan, 2010-NMSC-041, ¶ 16, 148 N.M. 747, 242 P.3d 314; see also
V. DEFENDANT WAS NOT PREJUDICED BY THE STATE‘S FAILURE TO DISCLOSE THE VICTIM‘S TOXICOLOGY REPORT AND THE FULL BALLISTICS REPORT
A. The Toxicology Report
{36} During the testimony of Dr. Zumwalt, defense counsel noticed that Dr. Zumwalt was looking at the victim‘s file which included a toxicology report. After defense counsel raised the issue, the district court gave him an opportunity to copy the portions of the file to which Dr. Zumwalt was referring. Defense counsel asked to be heard in chambers.
{37} In chambers, defense counsel objected that the toxicology report to which Dr. Zumwalt was referring differed from the report he had previously received in discovery. Defense counsel stated that the new report had not been disclosed under
B. The Ballistics Report
{38} At trial, the State called Kevin Streine, a firearms and tool mark examiner for the New Mexico Department of Public Safety. Without objection, the district court recognized Streine as an expert witness in firearms and tool mark analysis. Streine testified that the OMI sent him three bullets recovered from Victim‘s body, one of which was fragmented into two pieces. Streine stated that when an item is received by the lab, it is weighed, and he does not rely on OMI‘s weights. Streine identified two of the bullets as .32 caliber. As for the two fragments, Streine testified that he cоuld not determine their caliber, but he did identify them as being fired from the same gun as the .32 caliber bullets.
{39} Streine also received four shell casings from the Hobbs Police Department which were collected from the crime scene. Streine determined that all four casings were .32 caliber and were fired from the same firearm. He testified that without the firearm in question, he could not say whether the bullets and casings were fired from the same firearm.
{40} Finally, Streine received another bullet and additional fragments from the Hobbs Police Department which had been recovered from the victim‘s car. He identified the bullet and fragments as nominally .38 caliber. Streine stated that he used the bullet and fragment weights to determine the caliber.
{41} During Streine‘s testimony, defense counsel noticed that he was referring to notes. Defense counsel brought this to the attention of the district court, and the district court took a rеcess to give defense counsel an opportunity to see the notes. In chambers, defense counsel stated that the two-page report he received in discovery did not contain the weights of the bullets, yet Streine was referring to a thirty-three-page document during his testimony that did contain the weights of the bullets. Defense counsel objected that under
C. Discussion
{42} Defendant alleges that the State violated its duty to disclose by not providing the defense with the reports relied upon by Dr. Zumwalt and Streine during their testimony at trial. Defendant argues that under
{43} On review, a defеndant bears the burden of proving he was prejudiced by non-disclosure of evidence. State v. Hernandez, 1993-NMSC-007, ¶ 63, 115 N.M. 6, 846 P.2d 312. When evidence is disclosed for the first time during trial, we
must consider the following factors to determine whether the error is reversible: (1) whether the State breached some duty or intentionally deprived the defendant of evidence; (2) whether the improperly non-disclosed evidence was material; (3) whether the non-disclosure of the evidence prejudiced the defendant; and (4) whether the trial court cured the failure to timely disclose the evidence.
State v. Mora, 1997-NMSC-060, ¶ 43, 124 N.M. 346, 950 P.2d 789, abrogation on other grounds recognized by Kersey v. Hatch, 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.
{44} As a preliminary matter, we must note that Defendant failed to designate the toxicology report and ballistics report as exhibits under
{45} Under
{46} The record in this matter reflects that the defense requested discovery under
{47} The toxicology report relied upon by Dr. Zumwalt and the ballistics report relied upon by Streine would qualify as scientific tests or experiments. Although the State characterizes Streine‘s report as case notes, the report was contemplated in the defense‘s request to preserve original and edited notes and reports. Since both Dr. Zumwalt and Streine were employed by the State at the time of the trial, the toxicology and ballistics reports are presumed to be within the control of the prosecutor. See Hernandez, 1993-NMSC-007, ¶ 63 (“Information within the custody or control of an agent of the State is presumed to be within the control of the prosecutor.“). In addition, the reports could
{48} Under the second prong of Mora, we conclude that the toxicology and ballistics reports were material. The toxicology report was material because it was relevant to the issue of whether Victim resisted Defendant‘s attempt to kidnap him. The ballistics report was material because it was relevant to the issue of who fired the shots that killed Victim.
{49} Although we believe that the defense should have been provided the reports relied upon by Dr. Zumwalt and Streine, we hold under the third prong of Mora that Defendant did not suffer any prejudice from the Statе‘s failure to disclose. Id. Defendant makes no assertion as to how any difference in the reports used at trial and those provided during discovery would have changed the outcome of his case. As discussed, the toxicology report would not have materially altered his defense. The second ballistics report, which apparently contained specific bullet weights, would not have changed the outcome of Defendant‘s murder conviction. Regardless of the bullet weights, which would presumably establish which gun actually killed Victim, the jury had ample evidence to convict Defendant of first-degree murder, even if the bullets did not come from his gun. See
{50} Under the fourth prong of Mora, we conclude that the district court timely cured the State‘s failure to disclose. 1997-NMSC-060, ¶ 43. Defense counsel acknowledged talking with Streine on a break from trial and asking him about the weight of the bullets. Nevertheless, we are concerned about the amount of time defense counsel had to review this evidence at trial. The record reflects that following Defendant‘s objection, the district court recessed for approximately fifty-three minutes, of which about thirty-six minutes was spent in chambers with the attorneys arguing about the non-disclosure. Therefore, defense counsel only had around 17 minutes to meet with Streine and review Streine‘s notes. In most circumstances, this would not be a sufficient amount of time to read and digest lengthy scientific documentation and to prepare an adequate cross-examination.
{51} The foregoing concern notwithstanding, defense counsel should have asked for more information from the State. In fact, it is a common practice for attorneys to ask experts for the underlying notes or reports from experts. We take this opportunity to stress that defense attorneys are entitled to go to the OMI independently, without authorization from the State, and to interview OMI personnel. As a matter of practice, medical examiners will freely talk to defense counsel. This is part of the job of a medical investigator. Although there is always a risk of prejudice in not disclosing such evidence, in this case we conclude that Defendant was not prejudiced by the non-disclosure of the expert reports.
VI. THERE WAS NO CUMULATIVE ERROR
{52} Defendant argues that he did not receive a fair trial, and therefore his convictions should be reversed due to cumulative error. In support of his claim of cumulative error, Defendant merely repeats the arguments raised in his appeal.
VII. DEFENDANT HAS NOT ESTABLISHED THAT DEFENSE COUNSEL WAS INEFFECTIVE
{54} Defendant argues that his counsel at trial was constitutionally ineffective under the record established in this case. Defendant asserts that defense counsel demonstrated deficient performance in failing to interview or investigate the State‘s expert witnesses, including Dr. Zumwalt and Streine.2 Defendant claims that he was prejudiced by defense counsel‘s failure to investigate because Dr. Zumwalt and Streine‘s testimonies undermined the defense‘s theory of the case. In particular, Defendant claims that Streine‘s testimony undermined his attempt to rebut the testimony of eyewitness Laureles, who testified that both Defendant and Co-defendant were shooters. He also noted that Dr. Zumwalt‘s testimony was important to deciding the issue of whether the victim‘s acts were voluntary or coerced.
{55} “When a claim of ineffective assistance of counsel is first raised on direct appeal, we evaluate the facts that are part of the record.” Roybal, 2002-NMSC-027, ¶ 19. In evaluating ineffective assistance of counsel claims, New Mexico follows the test established in Strickland v. Washington, 466 U.S. 668, 687 (1984). Roybal, 2002-NMSC-027, ¶ 19. The defendant must first show that counsel‘s performance fell below that of a reasonably competent attorney. Strickland, 466 U.S. at 687. The defendant must then show that he was prejudiced by counsel‘s deficient performance. Id. “A prima facie case for ineffective assistance of counsel is not made if there is a plausible, rational strategy or tactic to explain the counsel‘s conduct.” Lytle v. Jordan, 2001-NMSC-016, ¶ 26, 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted). “[I]n order to satisfy the prejudice prong, it is necessary to show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Patterson v. LeMaster, 2001-NMSC-013, ¶ 28, 130 N.M. 179, 21 P.3d 1032 (internal quotation marks and citation omitted).
{56} Defendant has failed to make a prima facie case of ineffective assistance of counsel. The record before us supports a showing that defense counsel made a strategic decision not to interview Dr. Zumwalt and Streine. Any information that was likely to be gleaned from interviewing these witnesses would unlikely be helpful to Defendant‘s case, or otherwise change the outcome of his convictions. We can safely presume that defense counsel was apprised of this and made a tactical decision to forgo the interviews. “On appeal, we will not second guess the trial strategy and tactics of the defense counsel.” State v. Gonzales, 1992-NMSC-003, ¶ 32, 113 N.M. 221, 824 P.2d 1023, overruled on other grounds by State v. Montoya, 2013-NMSC-020, ¶ 2, 306 P.3d 426.
{57} Defendant argues that “No plausible, rational strategy explains counsel‘s conduct.” He states that defense counsel was surprised by the testimonies of Dr. Zumwalt and Streine and that his counsel‘s failure to contact or interview either witness served no purpose to the
defense. This argument is speculative and lacks support in the record. “Without such prima facie evidence, the Court presumes that defense counsel‘s performance fell within the range of reasonable representation.” State v. Arrendondo, 2012-NMSC-013, ¶ 38, 278 P.3d 517. Even if we
{58} To demonstrate prejudice, Defendant must show that had his counsel interviewed Dr. Zumwalt and Streine and obtained the toxicology and ballistics reports they relied upon, the result of his trial would have been different. Defendant cannot make that showing. There is sufficient evidence in the record to support Defendant‘s conviction for murder. Laureles and another eyewitness testified to their direct observations of the shooting, and additional witnesses testified in a corroborative manner regarding events leading to and immediately following the shooting.
{59} Defendant makes two other ineffective assistance of counsel claims, namely that defense counsel‘s failure to interview witnesses negatively affected plea bargaining and that his counsel did not create an adequate record regarding witness use immunity for Co-defendant. Both arguments lack support in the record. Defendant‘s argument regarding plea bargaining is purely speculative. As noted by Defendant, the record does not reflect the history of any plea negotiations. We decline to consider Defendant‘s argument that his attorney did not create an adequate record because Defendant cites no authority in support of this argument. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (holding that an appellate court will not consider an issue if no authority is cited in support of the issue).
{60} Because the record is not sufficient to establish whether the actions taken by defense counsel were reasonable, “this Court prefers that these claims be brought under habeas corpus proceedings so that the defendаnt may actually develop the record with respect to defense counsel‘s actions.” Arrendondo, 2012-NMSC-013, ¶ 38.
CONCLUSION
{61} We affirm Defendant‘s convictions for first-degree murder and conspiracy to commit first-degree murder. We vacate Defendant‘s convictions for conspiracy to commit kidnapping and conspiracy to commit robbery on double jeopardy grounds. We remand to the district court to re-sentence Defendant accordingly.
{62} IT IS SO ORDERED.
BARBARA J. VIGIL, Chief Justice
WE CONCUR:
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice
CHARLES W. DANIELS, Justice