State v. Carlos Garcia

Opinion

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 NO. 30,088 3 STATE OF NEW MEXICO, 4 Plaintiff-Appellee, 5 vs. 6 CARLOS GARCIA, 7 Defendant-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY 9 Douglas R. Driggers, District Judge 10 Silvia Cano-Garcia, District Judge 11 Lourdes Martinez, District Judge

12 Law Offices of Nancy L. Simmons, P.C. 13 Nancy L. Simmons 14 Albuquerque, NM

15 for Appellant

16 Gary K. King, Attorney General 17 Max Shepherd, Assistant Attorney General 18 Santa Fe, NM

19 for Appellee

20 DECISION 1 CHÁVEZ, Chief Justice. 2 {1} Carlos Garcia (Defendant) appeals his convictions of two counts of first 3 degree murder, conspiracy to commit murder in the first degree, armed robbery, 4 conspiracy to commit armed robbery, two counts of kidnapping in the first degree, 5 multiple counts of tampering with evidence, conspiracy to tamper with evidence, and 6 arson relating to the deaths of two young men (the victims). Defendant initially 7 claims that he was denied effective assistance of counsel because (1) he was 8 deprived of his ability to present an insanity defense; (2) his attorney failed to secure 9 the testimony of a potentially exculpatory witness; and (3) his attorney did not call 10 as witnesses at trial his co-defendant and certain unnamed police officers who had 11 supposedly coerced testimony through threats. Defendant then claims that the trial 12 court erred in admitting his statement confessing to the murders. Defendant also 13 argues that the district attorney’s office had a conflict of interest at trial because the 14 district attorney was married to the lead investigator in the case. Finally, Defendant 15 claims that even if these errors are not individually sufficient grounds for reversal, 16 cumulative error deprived him of his right to due process and a fair trial, warranting 17 reversal. 18 {2} Because we either reject or find insufficient evidence to support any of 19 Defendant’s claims, we affirm his convictions on all counts.

20 I. INEFFECTIVE ASSISTANCE OF COUNSEL

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1 {3} Defendant claims that he received ineffective assistance of counsel in 2 violation of the Sixth Amendment of the United States Constitution in three ways, 3 each of which we discuss in turn. The test for ineffective assistance of counsel is 4 derived from Strickland v. Washington, 466 U.S. 668, 694 (1984):

5 To establish a claim of ineffective assistance, a defendant must 6 show error on the part of counsel and prejudice resulting from that 7 error. An error is found if the attorney's conduct fell below that of a 8 reasonably competent attorney. An error is not unreasonable if it can 9 be justified as a trial tactic or strategy. Prejudice is shown when there 10 is a reasonable probability that, but for counsel's unprofessional errors, 11 the result of the proceeding would have been different.

12 State v. Schoonmaker, 2008-NMSC-010, ¶ 32, 143 N.M. 373, 176 P.3d 1105 13 (internal quotation marks and citations omitted). 14 {4} Typically this Court prefers ineffective assistance of counsel claims to be 15 heard in habeas corpus proceedings, since the trial record may not contain sufficient 16 evidence to allow such a determination on direct appeal. Id. ¶ 31. Alternatively, the 17 Court can remand to the trial court if the defendant has made a prima facie showing 18 of ineffective assistance. State v. Bernal, 2006-NMSC-050, ¶ 33, 140 N.M. 644, 19 146 P.3d 289. However, we have been willing to decide the issue of ineffective 20 assistance in some cases, such as when the complained-of incompetence was so 21 obvious that the trial court should have been aware of it and the State does not 22 dispute the relevant facts. Schoonmaker, 2008-NMSC-010, ¶ 31. 23 A. FAILURE TO PRESENT THE INSANITY DEFENSE

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1 {5} Defendant claims that he was denied effective assistance of counsel when his 2 attorney deprived him of an insanity defense, “in spite of the clear indications that 3 his mental condition at the time of the alleged murders was not sound[.]” According 4 to Defendant, this deprivation occurred when his private defense counsel failed to 5 take sufficient steps to secure funding for an expert from either the trial court or the 6 Public Defender Department, or, when such funding was not forthcoming, failing 7 to withdraw to allow Defendant to seek representation through the Public Defender 8 Department, which would have paid for expert witnesses. The State argues that 9 defense counsel actually “made a strategic decision after consulting with the 10 Defendant and his family not to present [the insanity] defense.” We hold that there 11 is insufficient evidence in the record to allow us to decide whether or not counsel’s 12 performance was ineffective in this regard. 13 {6} Defendant’s mental state was a central factor in the extensive pre-trial history 14 of this case, during which Defendant was represented by four separate attorneys. 15 Shortly after the January 5, 2000 killings of the victims, Defendant was evaluated 16 by Dr. Thomas Calvin Thompson, who concluded that Defendant was “floridly 17 psychotic” at the time of the evaluation. Defendant accordingly was deemed unfit 18 to stand trial. Almost a year later, after having been found competent to stand trial, 19 Defendant announced that he would pursue an insanity defense. Dr. Thompson 20 concluded in a subsequent evaluation of Defendant that “there would have been an

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1 extremely high probability that Mr. Garcia was quite psychotic at the time of the 2 alleged crimes[,]” but that he needed “further information” to definitively make this 3 determination. When Defendant’s second court-appointed attorney made little 4 progress in securing expert opinions on Defendant’s mental state at the time of the 5 crimes, he was removed as Defendant’s lawyer. As the trial judge explained, “I feel 6 that this case needs to move forward. [The insanity defense] is a unique defense, a 7 difficult defense to present, important defense to present . . . and it has to be 8 presented.” After the third court-appointed attorney failed to meet Defendant’s 9 family’s expectations, they hired private counsel Emeterio Rudolfo to take the case 10 to trial. 11 {7} The case was heard five years after the crimes were committed. By this time, 12 Defendant’s sanity at the time of the offenses had apparently been evaluated by Dr. 13 Thompson, who testified at a pre-trial hearing that “it’s a reasonable conclusion that 14 [at the time of the crime] he was psychotic.” In addition, Defendant’s brain was 15 analyzed by Dr. Ricardo Weinstein, an expert witness from California. Dr. 16 Thompson testified that Dr. Weinstein’s test results indicated that Defendant had 17 “frontal lobe dysfunction, which [Dr. Weinstein] believed [was] consistent with both 18 acquired as well as longer-standing features of mental illness and behavior control 19 difficulties.” The State responded to this evidence by hiring its own expert, Dr. Ned 20 Siegel, who concluded that Defendant was not insane at the time the crimes were 21 committed. Although questions have been raised about the preparation of

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1 Defendant’s experts, we are satisfied that consistent with the record, Defendant’s 2 sanity might have been a significant issue at trial. 3 {8} When Defendant’s case finally came to trial in January 2005, defense counsel 4 did not present an insanity defense. Defense counsel made no reference to a claim 5 of insanity in his opening statement. The State presented a strong case based, inter 6 alia, on evidence of Defendant’s stated intention to kill the victims with a gun he had 7 in his possession, the reported statements of co-defendant Steve Calderon, who 8 claimed to have been present when Defendant murdered the victims, and 9 Defendant’s multiple confessions to different people. Apparently defense counsel 10 had not yet informed either the State or the trial court whether it would present 11 experts on insanity by the time the State rested its case. Defense counsel explained 12 that “there is difficulty for the family to pay these experts.” After a recess to discuss 13 the issue with Defendant and his family, defense counsel returned to the courtroom, 14 and stated:

15 [Defense counsel:] Your Honor, I met with my client’s family 16 and then spoke with my client before and after that. The family doesn’t 17 have the means to pay the expert. We’re going to proceed without the 18 insanity defense.

19 The Court: Okay. Is that correct, [Defendant]? 20 [Defendant:] Yes, your Honor. 21 Defense counsel attacked the prosecution’s case on a piecemeal basis, and Defendant

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1 was found guilty on all charges. 2 {9} Defendant now argues that his private counsel, recognizing the importance of 3 the insanity defense and the availability of funding through the Public Defender 4 Department, should have either taken steps to secure that funding or recommended 5 that Defendant seek representation from the Public Defender Department and then 6 withdrawn. As Defendant puts it, “[c]ontinued representation of a client without 7 adequate resources, when adequate resources are readily available elsewhere . . . 8 would constitute ineffective assistance of counsel.” As a result of this allegedly 9 deficient performance, Defendant argues that he was prejudiced at trial. 10 {10} The State characterizes the decision to forego the insanity defense as “a 11 strategic decision.” The State also implies that since there was no hope of getting 12 public funding while private counsel Rudolfo was Defendant’s attorney, the family 13 was presented with the decision of (1) whether to keep retained counsel and forego 14 the insanity defense, or (2) to have private counsel withdraw and again request 15 representation from the Public Defender Department. They chose the first 16 alternative. 17 {11} The evidence before us is not sufficient to allow us to decide whether defense 18 counsel’s performance was deficient and, if so, whether Defendant was prejudiced 19 by any deficiency. First, our case law suggests that defense counsel may or may not 20 have performed deficiently, consistent with the facts in the record. We agree with 21 the State that defense counsel’s failure to approach the trial court or the Public

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1 Defender Department for funding was not ineffective. At the time of Defendant’s 2 trial, Subin v. Ulmer provided that a trial court could not force the Public Defender 3 Department to provide funding for expert assistance to a private attorney’s indigent 4 client. 2001-NMCA-105, ¶¶ 2, 4, 131 N.M. 350, 36 P.3d 441. After Defendant’s 5 trial, Subin was distinguished by State v. Brown, 2006-NMSC-023, ¶¶ 24-25, 139 6 N.M. 466, 134 P.3d 753, which obligated the Public Defender Department to 7 provide funding for indigent clients of pro bono private counsel, provided certain 8 criteria are met. In the case at bar, we have not been informed whether Rudolfo was 9 working pro bono. Even if he had been working pro bono, we cannot hold that 10 defense counsel’s failure to anticipate Brown constitutes ineffective assistance of 11 counsel. State v. Savage, 115 N.M. 250, 255, 849 P.2d 1073, 1078 (1992) (“On this 12 record, Defendant has not carried his burden of showing a lack of competence. A 13 showing that counsel has not anticipated a future development in the law is not 14 sufficient. The adequacy of counsel’s performance must be determined by the law 15 in effect at the time of . . . trial.” (internal quotation marks and citations omitted)). 16 Subin’s language was broad, and we believe it could reasonably have been read by 17 Defendant’s attorney to limit the trial court’s ability to require the Public Defender 18 Department to provide assistance even to pro bono private counsel. See 2001- 19 NMCA-105, ¶ 4 (“we find nothing in any constitutional doctrine or statutory 20 provisions authorizing the district court generally to order the [New Mexico Public 21 Defender] Department to provide services to people who are not its clients.”).

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1 {12} However, we must still address Defendant’s argument that defense counsel 2 should have advised Defendant of the availability of funding through the Public 3 Defender Department and then withdrawn. In Schoonmaker, the defendant faced 4 child abuse charges resulting from severe injuries sustained by an infant for whom 5 he was babysitting. 2008-NMSC-010, ¶ 2. He was indigent, but his family chose 6 to pay for private counsel. Id. ¶ 1. The State’s case hinged upon expert testimony 7 on shaken baby syndrome. Id. ¶¶ 19-21. The family could not afford to pay for a 8 medical expert, or even for interviews with the State’s medical experts. Id. ¶ 7. 9 When the trial court refused to provide assistance, defense counsel moved to 10 withdraw from the case to assure that the defendant was able to receive expert 11 assistance from the Public Defender Department. This course of action was also 12 refused by the trial court. Id. ¶¶ 7, 18. This Court held that the denial of the motion 13 to withdraw deprived the defendant of effective assistance of counsel and that a new 14 trial was required. Id. ¶¶ 40-41. In reaching this result, the Court noted that there 15 was no dispute about the centrality of expert opinion to the case; the fact that the 16 defendant’s inability to secure expert assistance was due to his “impecunious 17 condition[,]” or the fact that he would have gone to the Public Defender Department 18 but for the trial court’s interference. Id. ¶¶ 33-34. This analysis demonstrated that 19 the trial court had denied the defendant competent representation; as the Court 20 observed, “[a] defendant’s inability to pay for necessary experts is not a trial tactic 21 or strategy[.]” Id. ¶ 34. Indeed, in this circumstance, the Court suggested that “any

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1 competent counsel” would withdraw. Id. ¶ 18. 2 {13} Schoonmaker suggests that defense counsel’s performance may have been 3 deficient. Although the trial court denied the defendant in Schoonmaker necessary 4 but unaffordable expert assistance, it appears that if the same denial were effected 5 by counsel’s negligence, such as counsel’s failure to advise the client that public 6 subsidy was available, the defendant would also be denied competent representation. 7 The problem in the case before us is that Defendant lacks evidence to support such 8 a claim. For example, there is little direct evidence of the strength of his insanity 9 defense as it would have been presented at trial. Although inability to pay for a 10 necessary expert witness is not a trial strategy, unwillingness to either advise a client 11 about or present a hopeless insanity defense certainly is. See Burton v. State, 82 12 N.M. 328, 331, 481 P.2d 407, 410 (1971) (“The failure of an attorney to advise a 13 defendant of all possible defenses is no basis for a claim of incompetency of 14 counsel.”). Moreover, we are not presented with sufficient details of the 15 circumstances under which the decision not to present the insanity defense was 16 made. It is not clear when defense counsel first discussed the issue of expert costs 17 with Defendant, or whether defense counsel ever informed Defendant of the 18 availability of funding if he were to seek representation through the Public Defender 19 Department. If the necessity of paying expert witnesses and the availability of 20 alternative funding had been communicated to Defendant in a timely manner, but 21 Defendant nevertheless requested defense counsel to proceed without the insanity

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1 defense, it seems doubtful that defense counsel’s performance would be considered 2 deficient. Under New Mexico’s Rules of Professional Conduct, “the lawyer shall 3 abide by the client’s decision, after consultation with the lawyer, as to a plea to be 4 entered[.]” Rule 16-102(A) NMRA; see also State v. Richardson, 114 N.M. 725, 5 730, 845 P.2d 819, 824 (Ct. App. 1992) (“if defense counsel pursued a defense 6 Defendant insisted upon, counsel's performance in following that directive should 7 not necessarily result in a new trial, even if found below the standards for effective 8 assistance of counsel.”). 9 {14} Nor does the Court have sufficient evidence to determine whether Defendant 10 was prejudiced by the lack of an insanity defense. Defendant argues that Dr. 11 Thompson’s evaluations strongly suggest that he would testify to Defendant’s 12 insanity at the time of the offense. If presented, Defendant claims that “[a] properly 13 mounted defense of insanity drastically alters the landscape of a criminal trial . . . 14 and can have a dramatic effect on the ultimate disposition of the case[.]” The State 15 contends that its experts would have contradicted any claim of insanity and that the 16 testimony of the witnesses who had seen Defendant around the time of the killing 17 would further undermine any such defense. 18 {15} To demonstrate prejudice, a criminal defendant normally must show that 19 “there is a reasonable probability that, but for counsel's unprofessional errors, the 20 result of the proceeding would have been different.” Schoonmaker, 2008-NMSC- 21 010, ¶ 32 (internal quotation marks and citation omitted). Here, there is no direct

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1 evidence showing how Defendant’s experts would have testified at trial. Thus, we 2 cannot balance the evidence to determine whether the case’s outcome would have 3 been affected by such a defense. However, although Defendant has not carried his 4 burden, we are unable to conclusively hold that he was not prejudiced; as recited 5 above, the record contains considerable evidence suggesting that it was possible that 6 Defendant’s experts could have supported a meaningful insanity defense. 7 {16} Since Defendant has not carried his burden of demonstrating deficient 8 performance and prejudice even to the point of presenting a prima facie case, we 9 reject this claim of ineffective assistance of counsel. However, if Defendant is able 10 to develop more evidence, he may petition the trial court for a writ of habeas corpus 11 on this point.

12 B. FAILURE TO SECURE A POTENTIALLY EXCULPATORY 13 WITNESS

14 {17} Next, Defendant argues that his attorney should have secured either a 15 statement or live testimony from a cousin of one of the victims. The cousin 16 supposedly stated that on the night of the murders, one of the victims had told him 17 that the victims had a .22 handgun, the same caliber as the murder weapon, and were 18 going out looking for rival gang members at whom they had previously shot. At 19 trial, defense counsel attempted to introduce this statement through the testimony of 20 Dave Fernandez, an investigator with the Doña Ana Sheriff’s Department, who 21 interviewed the victim’s cousin. Defense counsel stated at trial that he was forced

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1 to use Fernandez’s testimony because defense counsel’s investigator was unable to 2 locate the victim’s cousin in the vicinity of Anthony, New Mexico. Defense counsel 3 argued that although Fernandez’s statement was hearsay within hearsay, the victim’s 4 words were a statement against penal interest, Rule 11-804 NMRA, and the cousin’s 5 statement should come in under the catch-all hearsay exception, Rule 11-807 6 NMRA. The trial court rejected this position, arguing that there were insufficient 7 steps taken to secure the cousin’s attendance at trial and that the statements were 8 neither reliable nor did they fall within any of the hearsay exceptions. Defendant 9 does not now argue that this ruling was incorrect, but instead claims that it was 10 ineffective assistance to fail to secure the cousin’s attendance at trial. 11 {18} The State responds that Defendant has made no showing that had he moved 12 for a continuance, he would have been able to find the missing witness. Moreover, 13 the State contends that even if the witness had been present, there is not a reasonable 14 probability that the jury would have found that someone other than Defendant was 15 the shooter. 16 {19} We hold that counsel’s assistance was not ineffective in failing to secure the 17 cousin’s testimony. Although defense counsel’s performance may or may not have 18 been deficient, we are able to conclude from the record that no prejudice resulted 19 from this witness’s absence at trial. First, there is no evidence that the cousin could 20 have been found, even if defense counsel had made more diligent efforts. Second, 21 it is by no means clear that the cousin would have been willing to testify at trial: as

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1 both the State and Defendant suggested at trial, the victims’ families had become 2 unwilling to assist Defendant. See State v. Hernandez, 115 N.M. 6, 18, 846 P.2d 3 312, 324 (1993) (refusing to find ineffective assistance of counsel because the 4 “[d]efendant has failed to demonstrate that the potential witnesses were willing to 5 testify and would have given favorable evidence.”). Third, and most importantly, 6 even if the cousin had testified as Fernandez described, it is difficult to imagine that 7 his testimony would have changed the trial’s outcome. There was ample evidence 8 that Defendant committed the murders: witnesses testified that they had seen 9 Defendant with a gun on the day of the murders, heard him express his desire to kill 10 someone, watched him get into the victims’ car, and heard him make multiple 11 confessions admitting that he had committed the murders. Considering the totality 12 of the evidence presented at trial, we do not believe that the cousin’s testimony was 13 “of sufficient magnitude to call into question the reliability of the trial results.” State 14 v. Reyes, 2002-NMSC-024, ¶ 46, 132 N.M. 576, 52 P.3d 948. Since Defendant was 15 not prejudiced, his ineffective assistance claim must fail. 16 C. FAILURE TO CALL CO-DEFENDANT AND POLICE OFFICERS 17 {20} In his last ineffective assistance of counsel claim, Defendant argues that 18 defense counsel should have subpoenaed (1) his co-defendant, and (2) unnamed 19 police officers for questioning at trial. He claims that his co-defendant “made 20 multiple statements that may have cast the veracity of Defendant’s confession into 21 doubt” and that the police officers “made threats and otherwise coerced testimony

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1 against Defendant.” Appellate defense counsel admits that regarding the police, 2 “Defendant’s communication on this point is relatively non-specific as to the 3 identities of the police officers as well as the particular testimony that Defendant 4 argues was coerced or improperly obtained.” The State argues that Defendant’s 5 claims about the officers are without factual support, and his argument regarding co- 6 defendant Steve Calderon is undermined by the lack of evidence that Calderon 7 would actually have testified, since his conviction was on appeal during Defendant’s 8 trial. 9 {21} We reject this ineffective assistance claim; there is insufficient evidence in the 10 record to allow us to decide it. It is well established that the burden of 11 demonstrating ineffective assistance is on the defendant. See State v. Hunter, 12 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168. Defendant essentially admits 13 that he made no such showing. We have no way of knowing whether defense 14 counsel’s performance was deficient or whether prejudice resulted. As with 15 Defendant’s first ineffective assistance claim, if sufficient facts do develop, 16 Defendant may bring a habeas corpus petition to test his argument. 17 II. ADMISSION OF DEFENDANT’S CONFESSION TO THE POLICE 18 {22} Defendant argues that the trial judge erred in refusing to suppress Defendant’s 19 allegedly involuntary confession to police, thereby violating his due process rights.1

1 21 Defendant does not allege any difference between U.S. Const. amend. XIV 22 and N.M. Const. art. II, § 18, and we accordingly decide this issue under federal

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1 We review claims of involuntariness using the following analysis:

2 The prosecution has the burden of proving the voluntariness of 3 a defendant's statement by a preponderance of the evidence. On 4 appeal, when determining whether a confession is voluntary, we review 5 the entire record and the circumstances under which the statement or 6 confession was made in order to make an independent determination 7 of whether a defendant's confession was voluntary. In doing so, we 8 examine the totality of the circumstances surrounding the confession 9 in order to decide the ultimate question of voluntariness.

10 State v. Fekete, 120 N.M. 290, 298, 901 P.2d 708, 716 (1995) (internal quotation 11 marks and citations omitted). See also Aguilar v. State, 106 N.M. 798, 799-800, 751 12 P.2d 178, 179-80 (1988) (describing a three-step review process, derived from 13 Culombe v. Connecticut, 367 U.S. 568 (1961), involving consideration of the totality 14 of the circumstances surrounding the confession, the accused’s response, and a legal 15 analysis of these factors). 16 {23} The substantive question that this analysis seeks to answer is whether “a 17 defendant's will has been overborne and his capacity for self-determination critically 18 impaired[.]” State v. Munoz, 1998-NMSC-048, ¶ 20, 126 N.M. 535, 972 P.2d 847 19 (internal quotation marks and citation omitted). In this test, mental capacity is only 20 one element to be considered. Fekete, 120 N.M. at 299, 901 P.2d at 717. Indeed, 21 New Mexico cases, citing Colorado v. Connelly, 479 U.S. 157 (1986), clearly hold

21 principles and the state cases that have been decided in consonance with them. See 22 State v. Gomez, 1997-NMSC-006, ¶ 22, 122 N.M. 777, 932 P.2d 1.

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1 that mental capacity alone cannot be a decisive factor in determining voluntariness. 2 State v. Cooper, 1997-NMSC-058, ¶ 44, 124 N.M. 277, 949 P.2d 660 (“Absent 3 police conduct causally related to the confession, there is simply no basis for 4 concluding that any state actor has deprived a criminal defendant of due process of 5 law.” (internal quotation marks and citation omitted)); see also Connelly, 479 U.S. 6 at 164 (“Respondent correctly notes that as interrogators have turned to more subtle 7 forms of psychological persuasion, courts have found the mental condition of the 8 defendant a more significant factor in the ‘voluntariness’ calculus. But this fact does 9 not justify a conclusion that a defendant's mental condition, by itself and apart from 10 its relation to official coercion, should ever dispose of the inquiry into constitutional 11 ‘voluntariness.’” (internal quotation marks and citation omitted)). 12 {24} In other words, official misconduct is the sine qua non of an involuntariness 13 claim. The mere fact that a defendant, due to mental illness or drugs, was incapable 14 of recalling and retelling earlier events does not undermine his confession for due 15 process purposes, absent some wrongdoing by the police. Police awareness of a 16 mental impairment, however, raises the level of scrutiny we give to police tactics. 17 See, e.g., Aguilar, 106 N.M. at 800, 751 P.2d at 180 (“In comparison with all 18 evidence to the contrary, these implied threats and promises, especially when 19 knowingly made to a defendant with diminished mental capacity, rendered the 20 confession involuntary as a matter of law.”). 21 {25} Defendant points to three factors that he claims rendered his confession

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1 involuntary: (1) he was intoxicated; (2) he was psychotic at the time of his arrest; 2 and (3) the police pressured him to talk. The State responds that there is no evidence 3 of marijuana use aside from Defendant’s assertions, Defendant’s statement does not 4 indicate that he was confused about the nature of his questioning or otherwise 5 incompetent, and there is no evidence of police misconduct. Therefore, the State 6 argues that “there is no basis for finding that the Defendant’s confessions were 7 anything but voluntarily given.” 8 {26} We hold that the State met its burden of establishing that Defendant’s 9 confession was voluntary. First, as far as intoxication is concerned, the only 10 evidence before us is Defendant’s bare assertion during his confession to the police. 11 The officers who took the confession testified that they did not notice any signs of 12 marijuana use on Defendant’s part, and there is no other specific evidence that he 13 used marijuana on the day of the murders. It appears that Defendant was alone the 14 day he was arrested and the evidence is inconsistent regarding whether he smoked 15 marijuana in the days leading up to his arrest. In any event, even if he had been 16 smoking marijuana, Defendant himself admits that intoxication alone is not enough 17 to undermine the voluntariness of his confession. See State v. Ortiz, 77 N.M. 316, 18 319, 422 P.2d 355, 357 (1967) (“A confession is not ipso facto inadmissible if made 19 while under the influence of drugs.”). Defendant has presented no specific evidence 20 of impairment–or more importantly, police awareness of his claimed impairment–to 21 undermine the evidence produced by the State. See Munoz, 1998-NMSC-048, ¶ 25

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1 (“Defendant's claim that he was in an intoxicated state at the time of the 2 interrogation has no support in the factual record. . . . Defendant was not 3 uncooperative or disassociative but, according to the uncontradicted testimony of 4 [the investigating agent], appeared ‘calm and laid back’ during the interview. . . . 5 [The agent] did not smell alcohol or perceive anything to indicate that Defendant's 6 mental state was impaired.”). Our own review of Defendant’s statement does not 7 uncover any signs of incapacity: Defendant understood the questions he was asked 8 and answered appropriately. 9 {27} Second, although Defendant argues that he was “patently insane” at the time 10 of his arrest, the expert on whose authority this claim rests admitted before trial that 11 he had neither reviewed the transcript nor the tape of the confession before rendering 12 his opinion. In contrast, the State presented expert evidence, the testimony of police 13 officers, and the testimony of other witnesses to support its claim that Defendant was 14 mentally competent at the time of his confession. Even if Defendant could produce 15 convincing evidence that he was mentally impaired at the time of his confession, he 16 would have to demonstrate some sort of police awareness and associated 17 overreaching in order to overcome the State’s contrary evidence. Cf. Cooper, 18 1997-NMSC-058, ¶ 44 (“[T]hough [the defendant] may have felt a certain 19 compulsion to talk to police, his incriminating statements might not–as a matter of 20 law–have been involuntary. Specifically, as stated above, we look to whether the 21 police used fear, coercion, hope of reward, or some other improper inducement.”).

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1 No such evidence has been forthcoming. In sum, the State has met its burden in the 2 face of Defendant’s claims of incapacity. 3 {28} Defendant also claims that police tactics rendered his confession involuntary. 4 From our review of his confession, the only evidence of possible overreaching by 5 the police came a few minutes into the interview, after Defendant had waived his 6 rights and made some highly incriminating statements:

7 [Defendant:] [The victim] took us and we . . . we were giving him 8 directions of all . . . all over the places [sic] to take us and stuff, and 9 then na [sic], but they led onto the crime. Uh . . . I’d rather not talk 10 about it right now.

11 [Investigator:] Okay. 12 [Defendant:] I just . . . 13 [Investigator:] Okay.

14 [Investigator:] Okay, if you don’t want to talk about it, that’s fine. 15 Can I ask you just a couple of questions then of what you told me in the 16 car? Do you mind of [sic] I do that?

17 [Defendant:] Uh . . . 18 [Investigator:] Yes or no? 19 [Defendant:] Uh . . . Go ahead sir.

20 (Ellipses in transcribed original.) 21 {29} After this exchange, Defendant recounted the confession he had earlier made

22 to the police after his arrest. After repeating his earlier confession, the officers asked

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1 Defendant to confirm that he had not been harmed, threatened, or forced to confess 2 and that he understood his rights. The investigators then reminded Defendant that 3 he had not wanted to discuss the events any further and allowed him to terminate the 4 interview. 5 {30} We find no evidence to suggest that Defendant’s “will was overborne.” The 6 police asked Defendant to repeat the statements he made in the car and reminded 7 him that he had not wished to speak about anything further. They did not make any 8 threats or promises and did not engage in any apparently coercive conduct. See 9 Fekete, 120 N.M. at 299, 901 P.2d at 717 (“[T]he record does not indicate that [the 10 defendant] was personally mistreated in terms of lengthy or abusive questioning by 11 the police. Also, the record does not support any finding of overreaching by the 12 police. The officers questioning [the defendant] did not threaten or coerce him, nor 13 did they promise him any special treatment if he talked to them.”). The State has 14 carried its burden of demonstrating that Defendant’s confession was voluntary. 15 III. CONFLICT OF INTEREST 16 {31} Defendant’s final argument is that there was a conflict of interest in the 17 proceedings below because the lead police investigator in this case was married to 18 the Las Cruces district attorney, whose subordinates tried the case. Before trial, 19 Defendant argued that this relationship was grounds for disqualifying the District 20 Attorney’s Office, and his argument was rejected. Defendant claims that to the 21 extent he was prejudiced by this conflict, he was denied his due process rights and

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1 his right to a fair trial. The State replies that Defendant has produced no evidence 2 of prejudice, and as such, his claim must fail. 3 {32} We reject Defendant’s claim. This Court reviews a trial court’s decision not 4 to disqualify a prosecutor under an abuse of discretion standard that gives due 5 deference to factual findings but does not give deference to legal findings, State v. 6 Gonzales 2005-NMSC-025, ¶¶ 24-25, 138 N.M. 271, 119 P.3d 151, as follows:

7 [A] trial court should determine whether prosecution by a member of 8 the district attorney's office is inconsistent with a particular standard of 9 professional conduct, justifying disqualification of that person. When 10 doing so, the court should indicate the relevant standard and the 11 evidence demonstrating a violation of the standard. At this stage, the 12 defendant has the burden of going forward with evidence and the 13 burden of persuasion. The standard may be relatively clear in some 14 cases, as it was in [State v.] Pennington [115 N.M. 372, 851 P.2d 494 15 (Ct. App. 1993)], in which the disqualified person had previously 16 worked for the defendant on the same case. In other cases, the standard 17 may not be so clear.

18 Id. ¶ 28 (internal citations omitted). Specifically, the defendant has the burden to 19 show “particular circumstances that justif[y] an inference of a disqualifying 20 interest.” Id. ¶¶ 34, 40-47 (holding that the defendant had met his burden by 21 presenting a series of witnesses to a prosecutor’s bias.). 22 {33} During the hearing on his motion to disqualify, Defendant established the 23 relationship between the district attorney and the lead investigator, but he did not 24 explain how this created a conflict of interest or had a prejudicial effect on his case. 25 Defendant did not point to any particular violation of the ethical rules caused by this

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1 relationship. As a result, the trial court found that “the unrebutted testimony of [the 2 investigator] raised no basis for disqualification of the District Attorney’s office” 3 and concluded that Defendant’s motion should be denied. 4 {34} We agree with the trial court. The instant case presents one of the “not so 5 clear” situations referred to in Gonzales, in which the defendant has the burden of 6 showing some “particular circumstances” that should alert the Court to a potential 7 problem. The marriage of these two parties alone is not enough. We concede that 8 there exists a potential divergence between the prosecutor’s “responsibility [as] a 9 minister of justice[,]” Rule 16-308 NMRA (ABA Comment), and the investigator’s 10 responsibility to tenaciously investigate a case. However, where the record discloses 11 no personal conflict, no potential leak of privileged information, or any particular 12 evidence of prejudice whatsoever, we are unwilling to presume that the district 13 attorney was unable to live up to her professional responsibilities. We find that the 14 trial court did not abuse its discretion in denying Defendant’s motion. 15 IV. CONCLUSION 16 {35} Having either rejected or found insufficient evidence to support any of 17 Defendant’s claims, we also reject his contention that cumulative error justifies a 18 reversal of his convictions. Accordingly, we affirm his convictions on all counts. 19 {36} IT IS SO ORDERED.

20 _________________________________

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1 EDWARD L. CHÁVEZ, Chief Justice

2 WE CONCUR:

3 _________________________________ 4 PATRICIO M. SERNA, Justice

5 _________________________________ 6 PETRA JIMENEZ MAES, Justice

7 _________________________________ 8 RICHARD C. BOSSON, Justice

9 _________________________________ 10 CHARLES W. DANIELS, Justice