1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,235
10 BARRY CHOYCE,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 13 Gary L. Clingman, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM
16 for Appellee
17 Law Office of Craig C. Kling 18 Craig C. Kling 19 San Diego, CA
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
23 Defendant appeals from his conviction for trafficking a controlled substance,
24 contrary to NMSA 1978, § 30-31-20 (2006). On appeal, Defendant contends (1) 1 the district court erred in allowing Assistant District Attorney Chris Mills (ADA
2 Mills) to participate in jury selection because ADA Mills knew Defendant in grade
3 school and high school, (2) the district court erred by allowing the dismissal of an
4 African-American juror because Defendant is also African-American, and (3) the
5 district court improperly denied a directed verdict based on a highly suggestive
6 identification. This Court issued a calendar notice proposing to affirm. Defendant
7 has filed a memorandum in opposition, which we have duly considered. Because
8 we are unpersuaded by Defendant’s arguments in opposition to our proposed
9 disposition, we affirm.
10 The District Court Did Not Err in Refusing to Disqualify ADA Mills
11 Defendant contends that the district court erred when it allowed ADA Mills
12 to assist in selecting a jury. In his docketing statement, Defendant asserted that he
13 and ADA Mills knew each other in high school and that it was “highly likely that
14 [ADA] Mills had some insight into [Defendant’s] background and that the insight
15 that he possessed unfairly influenced the prosecutor during the voir dire and jury
16 selection stage of the trial, resulting in an [sic] jury selection that was not fair and
17 impartial.” [DS 7] In support of this argument, Defendant cited State v. Robinson,
18 2008-NMCA-036, 143 N.M. 646, 179 P.3d 1254. [DS 2, 8] In this Court’s
19 calendar notice, we noted that to the extent Defendant was relying on a fight
2 1 Defendant may have been in with ADA Mills in high school to argue that Robinson
2 required ADA Mills’ removal from the case, Robinson provided that a prosecutor
3 could not prosecute a defendant for a crime if the prosecutor was a victim of that
4 crime. Id. ¶¶ 23-24. We further noted that Robinson did allow a prosecutor to
5 separately prosecute a defendant for another crime, despite the fact the prosecutor
6 had been victimized by the defendant in a manner other than that charged. Id.
7 Thus, we proposed to conclude that, to the extent Defendant was relying on a prior
8 victimization of ADA Mills to argue that ADA Mills should be disqualified,
9 Robinson did not require the district court to do so.
10 To the extent Defendant now argues that ADA Mills should have been
11 disqualified because he and Defendant were friends in grade school or high school,
12 and ADA Mills was privy to relevant, confidential information, we remain
13 unpersuaded. In his memorandum in opposition, Defendant contends that ADA
14 Mills was aware that Freddie Heckard, the prospective African-American juror the
15 prosecutor challenged, knew Defendant even though Mr. Heckard did not respond
16 affirmatively during voir dire when the venire was asked if anyone knew
17 Defendant. [MIO 2] Defendant contends that ADA Mills alerted the trial court
18 that he did not believe Mr. Heckard was being completely truthful during voir dire.
19 [MIO 2-3] When Mr. Heckard informed the Court he knew Defendant as a friend
3 1 of his son’s, the State moved to strike Mr. Heckard for cause. The district court
2 denied the State’s request, and the State used a peremptory challenge to strike Mr.
3 Heckard.
4 In support of his argument, Defendant again relies on Robinson for the
5 proposition that “[a] prosecutor may be removed from a case for a conflict of
6 interest where the prosecutor has a prior or current relationship with the defendant
7 that either made the prosecutor privy to relevant, confidential information, or
8 where their relationship has created an interfering personal interest or bias.” Id. ¶
9 22 (citing State v. Pennington, 115 N.M. 372, 374-75, 851 P.2d 494, 496-97 (Ct.
10 App. 1993), and State v. Gonzales, 2005-NMSC-025, ¶¶ 4-9, 40-46, 138 N.M.
11 271, 119 P.3d 151). Defendant has not demonstrated, however, how the
12 information possessed by ADA Mills was “relevant, confidential information”;
13 how ADA Mills’ continued prosecution of Defendant ran afoul of a particular
14 standard of professional conduct; or whether ADA Mills had a significant personal
15 bias against Defendant. Nor do the cases cited by this Court in Robinson for the
16 proposition Defendant relies on assist in Defendant’s argument. See Pennington,
17 115 N.M. at 374, 851 P.2d at 496 (acknowledging that there was no dispute that an
18 investigator who had previously worked for the defendant but then moved to the
19 prosecutor’s office had confidential information, but concluding that the screening
4 1 process afforded sufficient protection so the entire district attorney’s office did not
2 have to be disqualified); see also Gonzales, 2005-NMSC-025, ¶¶ 40-48
3 (upholding the disqualification of an entire district attorney’s office where one of
4 the attorneys had a significant professional and antagonistic relationship with the
5 defendant and a strong personal bias against the defendant, where no attempt to
6 screen the attorney had been made).
7 It is Defendant’s burden of proof to show that a particular standard of
8 professional conduct or a personal bias disqualifies the prosecutor. See Robinson,
9 2008-NMCA-036, ¶ 13. Defendant has not demonstrated how information that a
10 juror knew Defendant was confidential information that disqualified ADA Mills
11 from participating in Defendant’s prosecution. Nor has Defendant demonstrated a
12 personal bias or that a particular standard of professional conduct was violated by
13 ADA Mills’ participation. As a result, we conclude that Defendant has not
14 demonstrated how the information he claims ADA Mills possessed and utilized
15 required ADA Mills’ disqualification. Accordingly, we affirm on this issue.
16 The District Court Did Not Err by Permitting the State to Exercise a 17 Peremptory Challenge Against an African-American Juror
18 In his docketing statement, Defendant asserted that the district court erred by
19 permitting the State to exercise a peremptory challenge against Mr. Heckard, a
5 1 prospective African-American juror. In this Court’s calendar notice, we proposed
2 to affirm the district court’s decision, because it appeared the State had offered a
3 race-neutral reason, and Defendant had not demonstrated how he rebutted the
4 State’s explanation.
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1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,235
10 BARRY CHOYCE,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 13 Gary L. Clingman, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM
16 for Appellee
17 Law Office of Craig C. Kling 18 Craig C. Kling 19 San Diego, CA
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
23 Defendant appeals from his conviction for trafficking a controlled substance,
24 contrary to NMSA 1978, § 30-31-20 (2006). On appeal, Defendant contends (1) 1 the district court erred in allowing Assistant District Attorney Chris Mills (ADA
2 Mills) to participate in jury selection because ADA Mills knew Defendant in grade
3 school and high school, (2) the district court erred by allowing the dismissal of an
4 African-American juror because Defendant is also African-American, and (3) the
5 district court improperly denied a directed verdict based on a highly suggestive
6 identification. This Court issued a calendar notice proposing to affirm. Defendant
7 has filed a memorandum in opposition, which we have duly considered. Because
8 we are unpersuaded by Defendant’s arguments in opposition to our proposed
9 disposition, we affirm.
10 The District Court Did Not Err in Refusing to Disqualify ADA Mills
11 Defendant contends that the district court erred when it allowed ADA Mills
12 to assist in selecting a jury. In his docketing statement, Defendant asserted that he
13 and ADA Mills knew each other in high school and that it was “highly likely that
14 [ADA] Mills had some insight into [Defendant’s] background and that the insight
15 that he possessed unfairly influenced the prosecutor during the voir dire and jury
16 selection stage of the trial, resulting in an [sic] jury selection that was not fair and
17 impartial.” [DS 7] In support of this argument, Defendant cited State v. Robinson,
18 2008-NMCA-036, 143 N.M. 646, 179 P.3d 1254. [DS 2, 8] In this Court’s
19 calendar notice, we noted that to the extent Defendant was relying on a fight
2 1 Defendant may have been in with ADA Mills in high school to argue that Robinson
2 required ADA Mills’ removal from the case, Robinson provided that a prosecutor
3 could not prosecute a defendant for a crime if the prosecutor was a victim of that
4 crime. Id. ¶¶ 23-24. We further noted that Robinson did allow a prosecutor to
5 separately prosecute a defendant for another crime, despite the fact the prosecutor
6 had been victimized by the defendant in a manner other than that charged. Id.
7 Thus, we proposed to conclude that, to the extent Defendant was relying on a prior
8 victimization of ADA Mills to argue that ADA Mills should be disqualified,
9 Robinson did not require the district court to do so.
10 To the extent Defendant now argues that ADA Mills should have been
11 disqualified because he and Defendant were friends in grade school or high school,
12 and ADA Mills was privy to relevant, confidential information, we remain
13 unpersuaded. In his memorandum in opposition, Defendant contends that ADA
14 Mills was aware that Freddie Heckard, the prospective African-American juror the
15 prosecutor challenged, knew Defendant even though Mr. Heckard did not respond
16 affirmatively during voir dire when the venire was asked if anyone knew
17 Defendant. [MIO 2] Defendant contends that ADA Mills alerted the trial court
18 that he did not believe Mr. Heckard was being completely truthful during voir dire.
19 [MIO 2-3] When Mr. Heckard informed the Court he knew Defendant as a friend
3 1 of his son’s, the State moved to strike Mr. Heckard for cause. The district court
2 denied the State’s request, and the State used a peremptory challenge to strike Mr.
3 Heckard.
4 In support of his argument, Defendant again relies on Robinson for the
5 proposition that “[a] prosecutor may be removed from a case for a conflict of
6 interest where the prosecutor has a prior or current relationship with the defendant
7 that either made the prosecutor privy to relevant, confidential information, or
8 where their relationship has created an interfering personal interest or bias.” Id. ¶
9 22 (citing State v. Pennington, 115 N.M. 372, 374-75, 851 P.2d 494, 496-97 (Ct.
10 App. 1993), and State v. Gonzales, 2005-NMSC-025, ¶¶ 4-9, 40-46, 138 N.M.
11 271, 119 P.3d 151). Defendant has not demonstrated, however, how the
12 information possessed by ADA Mills was “relevant, confidential information”;
13 how ADA Mills’ continued prosecution of Defendant ran afoul of a particular
14 standard of professional conduct; or whether ADA Mills had a significant personal
15 bias against Defendant. Nor do the cases cited by this Court in Robinson for the
16 proposition Defendant relies on assist in Defendant’s argument. See Pennington,
17 115 N.M. at 374, 851 P.2d at 496 (acknowledging that there was no dispute that an
18 investigator who had previously worked for the defendant but then moved to the
19 prosecutor’s office had confidential information, but concluding that the screening
4 1 process afforded sufficient protection so the entire district attorney’s office did not
2 have to be disqualified); see also Gonzales, 2005-NMSC-025, ¶¶ 40-48
3 (upholding the disqualification of an entire district attorney’s office where one of
4 the attorneys had a significant professional and antagonistic relationship with the
5 defendant and a strong personal bias against the defendant, where no attempt to
6 screen the attorney had been made).
7 It is Defendant’s burden of proof to show that a particular standard of
8 professional conduct or a personal bias disqualifies the prosecutor. See Robinson,
9 2008-NMCA-036, ¶ 13. Defendant has not demonstrated how information that a
10 juror knew Defendant was confidential information that disqualified ADA Mills
11 from participating in Defendant’s prosecution. Nor has Defendant demonstrated a
12 personal bias or that a particular standard of professional conduct was violated by
13 ADA Mills’ participation. As a result, we conclude that Defendant has not
14 demonstrated how the information he claims ADA Mills possessed and utilized
15 required ADA Mills’ disqualification. Accordingly, we affirm on this issue.
16 The District Court Did Not Err by Permitting the State to Exercise a 17 Peremptory Challenge Against an African-American Juror
18 In his docketing statement, Defendant asserted that the district court erred by
19 permitting the State to exercise a peremptory challenge against Mr. Heckard, a
5 1 prospective African-American juror. In this Court’s calendar notice, we proposed
2 to affirm the district court’s decision, because it appeared the State had offered a
3 race-neutral reason, and Defendant had not demonstrated how he rebutted the
4 State’s explanation. In his memorandum in opposition, Defendant points out that it
5 became known during the course of voir dire that Mr. Heckard knew
6 Defendant—Defendant was a friend of Mr. Heckard’s son—and that Mr. Heckard
7 had not volunteered this information when the venire was asked if anyone knew
8 Defendant. Mr. Heckard informed the district court that, while it could be more
9 difficult, he would not be unduly influenced by his son’s relationship with
10 Defendant. [MIO 3] Mr. Heckard also stated that he had been feeling ill and that
11 he was confused during voir dire. [Id.] Defendant contends that, despite this
12 information, the State did not provide a race-neutral reason for use of its
13 peremptory challenge. Defendant further argues that the fact Mr. Heckard and
14 Defendant knew each other is not a race-neutral reason since the reason they knew
15 each other was because they are both part of the African-American community in
16 Hobbs. [MIO 4]
17 “A trial court’s determination of whether the state has properly provided
18 racially neutral reasons will be upheld on appeal if the determination is supported
19 by substantial evidence.” State v. Moore, 111 N.M. 619, 620, 808 P.2d 69, 70 (Ct.
6 1 App. 1991). “The state’s explanations need not rise to the level justifying removal
2 of a juror for cause; however, the reasons must be clear, reasonably specific, and
3 related to the issues to be tried.” Id. It is sufficient if the state provides an
4 explanation “that the trial court can determine is a bona fide reason relating to
5 legitimate criteria in selecting a jury on behalf of the state.” Id.
6 Here, Mr. Heckard knew Defendant and failed to volunteer this information
7 when the venire was asked if anyone knew Defendant. Mr. Heckard, although
8 stating that he could be neutral, admitted that it might prove more difficult for him
9 since he knew Defendant. We have previously held that similar circumstances
10 constituted a race-neutral justification for removing a venire member. See id. at
11 620-621, 808 P.2d at 70-71 (determining that the State’s use of a peremptory
12 challenge against the only African-American member of a jury venire was racially-
13 neutral where the prosecutor was aware that the juror knew one of the witnesses
14 and the juror did not volunteer this information during voir dire when the venire
15 was asked). In Moore, we stated that the prosecutor was entitled to be concerned
16 with a venire member’s lack of candor based on her failure to answer the
17 prosecutor’s questions and inform the court that she knew one of the witnesses. Id.
18 We therefore conclude that here “[t]he district court was entitled to find that the
7 1 prosecutor’s explanation related to a legitimate criteria in selecting jurors
2 acceptable to the state.” Id.
3 To the extent Defendant attempts to argue that the State did not provide a
4 racially-neutral reason because Mr. Heckard and Defendant only knew each other
5 because they were part of the African-American community in Hobbs and, thus,
6 the challenge was still based on race, Defendant has not provided any authority in
7 support of his argument. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d
8 1329, 1330 (1984) (providing that an appellate court will not consider an issue if
9 no authority is cited in support of the issue). Accordingly, we affirm on this issue.
10 The District Court Did Not Err by Refusing to Grant a Directed Verdict
11 Defendant contends, pursuant to State v. Franklin, 78 N.M. 127, 428 P.2d
12 982 (1967), and State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985), that the
13 officer that identified Defendant, Agent Fedric, did so under highly influential
14 circumstances and that the district court should have granted a directed verdict. In
15 this Court’s calendar notice, we stated that we understood Defendant to argue that
16 the officer’s identification should have been suppressed, and without the
17 identification, a directed verdict was appropriate. We proposed to conclude that,
18 although the method of identification was highly suggestive, the identification was
19 nonetheless reliable based on the totality of the circumstances. [CN 7]
8 1 Specifically, we noted that the identifying officer had plenty of time to observe
2 Defendant while he was engaged in face-to-face negotiations over the purchase of
3 crack cocaine; that the officer would have been especially attentive at the time of
4 the crime, given that he knew he would have to identify the perpetrator later; that
5 there was no indication that the officer expressed any uncertainty regarding his
6 identification; and that it did not appear there was any significant period of time
7 between the crime and the identification. [CN 7-8]
8 In his memorandum in opposition, Defendant contends that this Court’s
9 reliance on State v. Stampley, 1999-NMSC-027, ¶ 14, 127 N.M. 426, 982 P.2d 477,
10 is misplaced since the officer’s identification was not based on a photo array, but
11 on an individual photograph, thus, making it more akin to a show-up identification.
12 [MIO 5] Defendant’s argument is unpersuasive, as the analysis for a photo array
13 and a show-up identification are the same. According to State v. Johnson, 2004-
14 NMCA-058, ¶ 13, 135 N.M. 567, 92 P.3d 13, “[i]n reviewing the admissibility of
15 showup identification, we analyze whether the procedure was so impermissibly
16 suggestive as to give rise to a very substantial likelihood of irreparable
17 misidentification and, if so, whether the identification is nonetheless reliable under
18 the totality of the circumstances.” Johnson further provides that “[t]o assess
19 reliability, ‘courts weigh the corrupting effect of the suggestive identification’
9 1 against five factors[:] . . . (1) the witness’s opportunity to view the perpetrator at
2 the time of the crime, (2) the witness’s degree of attention at the time of the crime,
3 (3) the accuracy of the witness’s pre-identification description, (4) the certainty of
4 the witness, and (5) the time elapsed between the crime and the identification.” Id.
5 These are the factors this Court relied on in proposing to conclude that the
6 suggestiveness of the identification was outweighed by its reliability. Defendant
7 does not address these factors with respect to Agent Fedric’s identification of
8 Defendant. [MIO 5] See State v. Sisneros, 98 N.M. 201, 202-03, 647 P.2d 403,
9 404-05 (1982) (“The opposing party to summary disposition must come forward
10 and specifically point out errors in fact and in law.”). Accordingly, we affirm on
11 this issue.
12 For the reasons stated above and in this Court’s notice of proposed
13 disposition, we affirm Defendant’s conviction.
14 IT IS SO ORDERED.
15 16 17 MICHAEL E. VIGIL, Judge 18 WE CONCUR:
19 20 CYNTHIA A. FRY, Chief Judge
10 1 2 JONATHAN B. SUTIN, Judge