State v. Adeogba

Opinion

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. 35,662 5 SAINT ADEOGBA, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY 8 Daniel A. Bryant, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Tania Shahani, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant 16 MEMORANDUM OPINION 17 VIGIL, Judge. 18 {1} Defendant appeals his convictions for two counts of trafficking a controlled 19 substance (methamphetamine). [DS 1] We issued a calendar notice proposing to

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1 affirm. In response, Defendant filed a memorandum in opposition and motion to 2 amend the docketing statement. We deny Defendant’s motion to amend the docketing 3 statement and remain unpersuaded by Defendant’s arguments, and therefore affirm. 4 Ineffective Assistance 5 {2} We turn first to Defendant’s motion to amend the docketing statement with 6 respect to the issue of ineffective assistance of counsel. While the docketing statement 7 argued that trial counsel was ineffective for failing to move to reveal the identity of 8 the confidential informant (“CI”), [DS 5] Defendant seeks to amend the docketing 9 statement to add additional instances of ineffective assistance. [MIO 1, 5] We address 10 each contention of ineffective assistance in turn. 11 {3} First, Defendant seeks to amend the docketing statement to argue that trial 12 counsel was ineffective for failing to challenge the warrantless covert recording made 13 in Defendant’s home under Article II, Section 10 of the New Mexico Constitution. 14 [MIO 6] We summarize the relevant factual background as follows. The two counts 15 of trafficking in this case stemmed from two separate incidents—once on April 4, 16 2014 and once on April 17, 2014. [MIO 2–3] Detective Wallace Downs testified that 17 on April 4, 2014, he worked with a CI to buy methamphetamine from Defendant. The 18 CI invited Defendant to the CI’s home, where Defendant pulled out a plastic-wrapped 19 bundle with a white, powdery substance from his pants. [MIO 3] The parties stipulated

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1 that the substance was methamphetamine. [MIO 3] Officer Downs gave Defendant 2 $200 in unmarked cash in exchange for the substance. [MIO 3] 3 {4} On April 17, 2014, the CI arranged a second buy with Defendant, this time at 4 Defendant’s house. [MIO 3] Officer Downs and the CI went to Defendant’s house and 5 knocked on the back door, at which point Defendant invited them in and took him to 6 his bedroom. [MIO 3] Defendant took out a half-ounce of a substance stipulated to be 7 methamphetamine, and in exchange, Officer Downs gave him $625 in unmarked cash. 8 [MIO 3] This transaction was covertly recorded by Officer Downs, without a warrant, 9 and the audio was played for the jury at trial, without objection. [MIO 3–4] 10 {5} Defendant acknowledges that under Fourth Amendment jurisprudence, the 11 recording would not be suppressed. See State v. Hogervorst, 1977-NMCA-057, ¶ 30, 12 90 N.M. 580, 566 P.2d 828 (holding that there was no unlawful search where an 13 officer secretly recorded a conversation with electronic equipment carried on his 14 person); State v. Chamberlain, 1989-NMCA-082, ¶ 7, 109 N.M. 173, 783 P.2d 483 15 (“A police officer or agent does not violate the fourth amendment by electronically 16 recording or transmitting his conversations with another person.”). 17 {6} However, Defendant argues that a different result is mandated by the New 18 Mexico Constitution, and that his trial counsel was ineffective for failing to argue 19 below that our state constitution afforded him greater protections. [MIO 6] We

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1 disagree. Our case law has not yet considered whether the New Mexico Constitution 2 would provide greater protection in this context. 3 {7} “To evaluate a claim of ineffective assistance of counsel, we apply the 4 two-prong test in Strickland v. Washington, 466 U.S. 668, 687 (1984).” State v. Dylan 5 J., 2009-NMCA-027, ¶ 36, 145 N.M.719, 204 P.3d 44. “That test places the burden 6 on the defendant to show that his counsel’s performance was deficient and that the 7 deficient performance prejudiced his defense.” Id. In the present case, our Courts have 8 not evaluated whether secret recordings by police officers are subject to greater 9 protections under our state constitution, and our existing jurisprudence is clear that 10 this circumstance presents no basis for suppression under the Fourth Amendment. 11 Thus, not only could it be argued that a “plausible, rational strategy or tactic can 12 explain the conduct of defense counsel,” such as “counsel’s judgment that the motion 13 would be groundless and unsuccessful,” State v. Crocco, 2014-NMSC-016, ¶ 15, 327 14 P.3d 1068 (internal quotation marks and citation omitted), but “[a] showing that 15 counsel has not anticipated a future development in the law is not sufficient” to show 16 a lack of competence, State v. Savage, 1992-NMCA-126, ¶ 18, 115 N.M. 250, 849 17 P.2d 1073. Indeed, “[t]he adequacy of counsel’s performance must be determined by 18 the law in effect at the time of trial.” Savage, 1992-NMCA-126, ¶ 18 (alteration, 19 internal quotation marks, and citation omitted). We therefore conclude that Defendant

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1 has not established that his counsel’s performance was deficient for failing to spot and 2 raise a novel legal argument that may or may not have been meritorious. See State v. 3 Sanchez, 1982-NMCA-155, ¶ 10, 98 N.M. 781, 652 P.2d 1232 (“Failure to file a 4 non-meritorious motion cannot be declared ineffective assistance.” (internal quotation 5 marks omitted)). Because the issue Defendant seeks to add is not viable, we deny his 6 motion to amend. See State v. Sommer, 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878 7 P.2d 1007 (denying a motion to amend the docketing statement based upon a 8 determination that the argument sought to be raised was not viable). 9 {8} Next, Defendant seeks to amend his docketing statement to argue that his trial 10 counsel was ineffective for failing to cross-examine Officer Downs about 11 inconsistencies that existed between his testimony at trial and the contents of his 12 police report. [MIO 13] Specifically, Defendant points out that the criminal complaint 13 and affidavit in support of the arrest warrant contains statements indicating that the 14 second controlled buy was coordinated directly by Officer Downs via text with 15 Defendant; however, at trial, Officer Downs testified that he never communicated 16 directly with Defendant, and that the CI set up the controlled buys. [MIO 13–14] 17 Defendant argues that the failure to highlight inconsistencies between the testimony 18 at trial and the written reports impacted the ability of the jury to give the appropriate 19 weight to Officer Downs’ credibility as a witness, and constitutes ineffective

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1 assistance of counsel. [MIO 13–14] We disagree. Defendant has failed to demonstrate 2 how his counsel’s failure to point out these inconsistencies prejudiced him in any 3 cognizable manner; rather, Defendant’s claim that the jury may have weighed Officer 4 Downs’ testimony less heavily if the inconsistencies had been noted is hypothetical. 5 In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (stating 6 that “[a]n assertion of prejudice is not a showing of prejudice.”). Again, because the 7 issue Defendant seeks to add is not viable, we deny his motion to amend. See Sommer, 8 1994-NMCA-070, ¶ 11. 9 {9} We next address Defendant’s continued contention that trial counsel was 10 ineffective for failing to develop an entrapment defense by thoroughly investigating 11 the case to identify helpful defense witnesses, including the CI. [MIO 14] We remain 12 unpersuaded. Our notice observed that trial counsel’s decision to not move to reveal 13 the identity of the CI could have been a tactical one, [CN 3] and even if not, 14 Defendant failed to establish the element of prejudice. [CN 4] With respect to 15 prejudice, our notice observed that the record before us contains nothing to suggest 16 how a motion to disclose the CI’s identity would have been successful and that the 17 CI’s testimony would have ultimately changed the outcome of the proceedings. [CN 18 4] 19 {10} In his memorandum in opposition, Defendant points out that trial counsel

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1 admitted on record that his decision not to move to reveal the identity of the CI did not 2 involve trial tactics. [MIO 15; 1 RP 130] In response to this Court’s notice, some of 3 the factual information provided by counsel is attributed to conversations with 4 Defendant, and counsel has not indicated whether these facts were actually before the 5 district court. [MIO 15–16] Specifically, Defendant asserts that the only reason he 6 provided drugs to Officer Downs was because the CI was his employer, had arranged 7 the sales, and instructed Defendant, as her employee, to sell to Officer Downs. [MIO 8 15–16] We note that unlike trial counsel, a Defendant is not an officer of the court and 9 is not bound by a duty of candor toward the tribunal. Additionally, Defendant has not 10 shown that these facts were before the district court. The record reflects that when trial 11 counsel stated that the decision not to move to reveal the CI’s identity was not tactical, 12 trial counsel also stated that he was “not going into any details.” [1 RP 130] Further, 13 Defendant’s memorandum in opposition does not respond to our notice by showing 14 how Defendant was prejudiced. To the extent Defendant argues that trial counsel 15 failed to entirely investigate whether the CI, as Defendant’s boss, utilized undue 16 persuasion or enticement to force Defendant to sell to Officer Downs, the record 17 before us is insufficient for us to address on direct appeal whether there is any merit 18 to Defendant’s ineffective assistance claim. See State v. Arrendondo, 2012-NMSC- 19 013, ¶ 44, 278 P.3d 517 (declining to review an ineffective assistance claim on direct

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1 appeal, without prejudice to a defendant’s right to make an adequate record and seek 2 relief in the context of a post-conviction habeas corpus proceeding). 3 {11} Fourth, Defendant seeks to amend the docketing statement to argue that trial 4 counsel was ineffective for failing to communicate with Defendant about the case, 5 including trial strategy. [MIO 18] Again, some of the factual information provided by 6 counsel in the memorandum in opposition is attributed to conversations with 7 Defendant, and counsel has not indicated whether these facts were actually before the 8 district court. [MIO 18] The facts are insufficiently developed for us, on direct appeal, 9 to conclude that there is any merit in Defendant’s ineffective assistance claim. See 10 Arrendondo, 2012-NMSC-013, ¶ 44. We therefore deny Defendant’s motion to 11 amend. See Sommer, 1994-NMCA-070, ¶ 11. 12 Sufficiency of the Evidence 13 {12} Defendant continues to challenge the sufficiency of the evidence to support his 14 convictions. [MIO 20] Our notice observed that testimony was presented that the CI 15 invited Defendant to come to a house and bring some “energy,” a known term 16 referring to methamphetamine. [DS 2; CN 7] On April 4, 2014, Defendant arrived at 17 the house and removed a plastic bundle with a white powdery substance from his 18 crotch area and offered it to Officer Downs. [DS 2; CN 7; MIO 3] Defendant placed 19 the substance into baggies and showed them to Officer Downs, and Officer Downs

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1 gave Defendant cash in exchange for the baggies. [DS 2–3; CN 7] The memorandum 2 in opposition clarifies that on April 17, the CI (as opposed to Officer Downs) arranged 3 a second controlled buy, at Defendant’s house, where Defendant gave Officer Downs 4 methamphetamine in exchange for cash. [MIO 3–4] Our notice proposed to conclude 5 that this evidence was sufficient to establish Defendant’s guilt. [CN 8] 6 {13} In response, Defendant’s memorandum in opposition argues that the evidence 7 was insufficient because the controlled buys were not made using marked cash, and 8 there was no fingerprint evidence to link the bags of methamphetamine purchased by 9 Officer Downs to Defendant. [MIO 21] Defendant argues that only Officer Downs’ 10 testimony and the audio recording of the April 17 controlled buy was insufficient to 11 establish his guilt, as it required “the jury to make too many inferential leaps based on 12 circumstantial evidence and to trust the testimony of a single police officer.” [MIO 13 21–22] We remain unpersuaded. The testimony of a single officer can provide 14 sufficient support for a trafficking conviction, see generally State v. Rael, 1999- 15 NMCA-068, ¶ 27, 127 N.M. 347, 981 P.2d 280 (holding that an undercover agent’s 16 testimony that he purchased heroin from the defendant provided sufficient support for 17 a conviction for trafficking), and our case law provides that circumstantial evidence 18 can provide sufficient basis to support a conviction. See State v. Durant, 19 2000-NMCA-066, ¶ 15, 129 N.M. 345, 7 P.3d 495 (“Intent can rarely be proved

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1 directly and often is proved by circumstantial evidence.”); State v. Chandler, 2 1995-NMCA-033, ¶ 15, 119 N.M. 727, 895 P.2d 249 (holding that circumstantial 3 evidence may support conviction if that evidence provides a sufficient basis for a fact- 4 finder to infer guilt beyond reasonable doubt). We therefore affirm. 5 Judicial Bias 6 {14} Defendant seeks to amend his docketing statement to add the issue that the 7 district court demonstrated that it was not a neutral arbiter when it issued an order of 8 commitment prior to trial and when it decided to run Defendant’s sentences 9 consecutively. [MIO 22] The memorandum in opposition notes that Defendant told 10 appellate counsel that the district court handed him a signed “order of commitment” 11 before trial. [MIO 22] As we have explained above, Defendant, unlike trial counsel, 12 is not an officer of the court and is not bound by a duty of candor toward the tribunal. 13 {15} To the extent Defendant argues that the district court was biased against him 14 when it rescheduled multiple sentencing hearings and ordered him to serve his 15 sentences consecutively as opposed to concurrently, [MIO 22–23] we disagree. See 16 State v. Ahasteen, 1998-NMCA-158, ¶ 28, 126 N.M. 238, 968 P.2d 328 (observing 17 that the authority of the district court to control its docket encompasses the power to 18 “supervise and control the movement of all cases on its docket from the time of filing 19 through final disposition” (internal quotation marks and citations omitted)), abrogated

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1 on other grounds by State v. Savedra, 2010-NMSC-025, 148 N.M. 301, 236 P.3d 20; 2 State v. Lopez, 1983-NMCA-045, ¶ 4, 99 N.M. 612, 661 P.2d 890 (“The trial court has 3 the discretion to order that sentences for different offenses be served concurrently or 4 consecutively.”). Because we conclude that the issue Defendant seeks to add is not 5 viable, we deny his motion to amend. See Sommer, 1994-NMCA-070, ¶ 11. 6 {16} For the foregoing reasons, we deny Defendant’s motion to amend the docketing 7 statement. With respect to the issues originally raised in Defendant’s docketing 8 statement, we affirm for the reasons stated above and in our notice of proposed 9 disposition. 10 {17} IT IS SO ORDERED.

11 __________________________________ 12 MICHAEL E. VIGIL, Judge

13 WE CONCUR:

14 _________________________ 15 JONATHAN B. SUTIN, Judge

16 _________________________ 17 TIMOTHY L. GARCIA, Judge