State v. Dylan J.

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.

Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 31,274 5 DYLAN J., 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Denise Barela Shepherd, District Judge

9 Gary K. King, Attorney General 10 Santa Fe, NM 11 Jacqueline R. Medina, Assistant Attorney General 12 Albuquerque, NM

13 for Appellee

14 Robert E. Tangora, L.L.C. 15 Robert E. Tangora 16 Santa Fe, NM

17 for Appellant 18 MEMORANDUM OPINION 19 HANISEE, Judge.

1 {1} Defendant was convicted of three counts of criminal sexual penetration (CSP) 2 in the first degree (child under thirteen) for acts involving his two sons, B.J. and A.J. 3 In Defendant’s first appeal to this Court, we concluded that Defendant established a 4 prima facie claim of ineffective assistance of counsel, and we remanded to the district 5 court to hold an evidentiary hearing. State v. Dylan J., 2009-NMCA-027, ¶ 45, 145 6 N.M. 719, 204 P.3d 44. Following the evidentiary hearing, the district court rejected 7 Defendant’s claims that his trial counsel was ineffective. 8 {2} On appeal, Defendant raises three main issues. Defendant first argues that the 9 district court erred in concluding that he received effective representation during his 10 trial. Second, Defendant contends that his appellate counsel in his first appeal was also 11 ineffective. Finally, Defendant argues that his counsel on remand during the 12 evidentiary hearing was ineffective. We conclude that Defendant’s trial counsel was 13 not ineffective, that the district court properly declined to review issues regarding the 14 effectiveness of Defendant’s appellate counsel, and that Defendant did not establish 15 a prima facie case of ineffectiveness of counsel regarding his counsel on remand. 16 Accordingly, we affirm. 17 {3} Because this is a memorandum opinion and the parties are familiar with the 18 facts and procedural history of this case, we reserve further discussion of the pertinent 19 facts for our analysis.

3

1 DISCUSSION 2 Standard of Review 3 {4} Defendant’s claims present this Court with mixed questions of fact and law. 4 “Questions of law or questions of mixed fact and law, . . . including the assessment 5 of effective assistance of counsel, are reviewed de novo.” Duncan v. Kerby, 1993- 6 NMSC-011, ¶ 7, 115 N.M. 344, 851 P.2d 466. However, we review the district court’s 7 findings on purely factual issues to determine if substantial evidence supports the 8 court’s findings. Id. 9 I. Trial Counsel 10 {5} “Trial counsel is generally presumed to have provided adequate assistance.” 11 State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. In order to 12 establish a successful ineffective assistance of counsel claim, “a defendant must first 13 demonstrate error on the part of counsel, and then show that the error resulted in 14 prejudice.” Id. Error occurs only if the representation fell below an objective standard 15 of reasonableness and cannot be justified as a trial tactic or strategy. Id. As for 16 prejudice, “generalized prejudice is insufficient.” Id. “Instead, a defendant must 17 demonstrate that counsel’s errors were so serious, such a failure of the adversarial 18 process, that such errors undermine judicial confidence in the accuracy and reliability 19 of the outcome.” Id. (alteration, internal quotation marks, and citation omitted). Thus,

4

1 the defendant must show “a reasonable probability that, but for counsel’s 2 unprofessional errors, the result of the proceeding would have been different.” Id. 3 (internal quotation marks and citation omitted). Failure to prove either prong of the 4 test defeats a claim of ineffective assistance of counsel. State v. Martinez, 2007- 5 NMCA-160, ¶ 19, 143 N.M. 96, 173 P.3d 18. 6 {6} Defendant alleges five instances of counsel’s error at trial: (1) counsel elicited 7 opinion testimony that B.J.’s adjustment disorder was caused by sexual abuse, (2) 8 counsel failed to hire experts, (3) counsel failed to object to the reiteration of out-of- 9 court accusations by B.J. through his sexual abuse counselor, (4) counsel failed to 10 object to character evidence, and (5) counsel assisted the State in establishing 11 accusations involving A.J. Defendant also contends that these failures resulted in 12 cumulative error. We address each of these alleged errors in turn. 13 A. Adjustment Disorder Testimony 14 {7} Defendant argues that counsel was ineffective for eliciting an opinion that B.J.’s 15 adjustment disorder was caused by sexual abuse. B.J.’s sexual abuse counselor, Ms. 16 Wasmus, testified at trial that she diagnosed him with “adjustment disorder.” During 17 counsel’s cross-examination of Ms. Wasmus, counsel asked, “In fact, you can’t say 18 from the witness stand today that sexual abuse caused the adjustment disorder in 19 [B.J.’s] case, right?” Ms. Wasmus responded, “In my professional opinion[,] it did.”

5

1 Counsel immediately objected to Ms. Wasmus’ statement and moved for a mistrial. 2 The district court denied the request but issued a curative instruction for the jury to 3 disregard the statement. 4 {8} Counsel testified at the evidentiary hearing that asking the question was part of 5 his trial strategy. Counsel explained that due to a pre-trial ruling stating that the 6 prosecution could not elicit this type of opinion testimony, he expected Ms. Wasmus 7 to answer that she could not say from the witness stand that sexual abuse caused the 8 adjustment disorder. The district court found that counsel had a legitimate strategic 9 reason in asking the question, that no prejudice resulted because psychological 10 testimony was not the crux of the case, and that Ms. Wasmus’ testimony was not 11 particularly persuasive. 12 {9} Regardless of our agreement or disagreement with the district court’s finding 13 on this point, we conclude that Defendant has not shown any prejudice that resulted 14 from the question. The district court promptly administered a curative instruction after 15 the statement and struck the answer from the record. Cf. State v. Newman, 1989- 16 NMCA-086, ¶ 19, 109 N.M. 263, 784 P.2d 1006 (“Generally, a prompt admonition 17 from the court to the jury to disregard and not consider inadmissible evidence 18 sufficiently cures any prejudicial effect which might otherwise result.”). Following the 19 curative instruction, counsel immediately elicited testimony from Ms. Wasmus

6

1 regarding the numerous other factors in B.J.’s life that could cause adjustment 2 disorder. Finally, the district court included an instruction in the jury instructions that 3 “Ms. Wasmus cannot make a determination as to the cause of any diagnosis. Any 4 testimony to the contrary should be disregarded.” We presume that the jury followed 5 both the curative instruction and the jury instruction. See State v. Sellers, 1994- 6 NMCA-053, ¶ 28, 117 N.M. 644, 875 P.2d 400 (“There is a presumption that the jury 7 follows the instructions that are given.”). Furthermore, we conclude that counsel’s 8 questioning of Ms. Wasmus to elicit other factors that may have contributed to the 9 adjustment disorder diagnosis provided Defendant an effective cross-examination of 10 this witness. Accordingly, because Defendant was not prejudiced by this question, we 11 conclude that counsel was not ineffective on this point. 12 B. Failure to Hire Experts 13 {10} Defendant argues that counsel was ineffective in failing to utilize expert 14 testimony in his defense. More specifically, Defendant contends that counsel should 15 have called an expert to rebut Ms. Wasmus’ testimony and to discuss child 16 suggestibility in false allegation cases. 17 {11} Counsel testified at the evidentiary hearing that he discussed with Defendant 18 the hiring of experts and that in order to obtain experts, Defendant would need to find 19 additional funds. Counsel presented Defendant with the option that, in the absence of

7

1 additional funds, counsel could withdraw from the representation and Defendant could 2 seek representation from the public defender’s office, where funds for experts were 3 available, subject to their internal approval process. Counsel testified that Defendant 4 chose to proceed with counsel’s representation despite not being able to procure more 5 funds. Defendant, on the other hand, testified at the evidentiary hearing that these 6 conversations did not take place and presented testimony that more funds could have 7 been made available to hire experts. The district court ultimately found counsel’s 8 testimony credible and concluded that counsel was not ineffective in failing to hire 9 experts for this reason. 10 {12} Defendant argues on appeal that counsel’s explanation for failing to hire experts 11 is inadequate given that Defendant produced testimony that more funds were 12 available. We are unpersuaded by Defendant’s contention because when reviewing 13 the district court’s findings under our substantial evidence standard of review, the 14 question is whether there is sufficient evidence to support the finding reached, not 15 whether contrary evidence supports a different conclusion. State v. Davis, 2013- 16 NMSC-028, ¶ 10, 304 P.3d 10, cert. granted, 2014-NMCERT-003, 324 P.3d 376.In 17 this case, counsel’s testimony provides sufficient evidence that Defendant chose to 18 proceed without expert testimony in order to continue with private counsel, and 19 Defendant’s claim of error accordingly fails on this point.

8

1 C. Ms. Wasmus’ Repetition of B.J.’s Out-of-Court Accusations 2 {13} Defendant argues that counsel was ineffective for failing to object to Ms. 3 Wasmus’ repetition of B.J.’s accusations during therapy that Defendant sexually 4 abused him. Counsel testified at the evidentiary hearing that he did not object to this 5 testimony because he lost a pre-trial motion to keep Ms. Wasmus’ testimony out 6 entirely and to prevent her from testifying as to what the children told her. Counsel 7 also stated in his affidavit that he did not object to this testimony because identity was 8 not at issue in the case. The district court agreed with counsel and concluded, in part, 9 that failing to renew the objection was not error given that the motion in limine had 10 been denied and that because identity was not at issue in the case, counsel’s failure to 11 object was a legitimate trial strategy in order to avoid appearing obstructionist and 12 argumentative in front of the jury. 13 {14} We agree with the district court that counsel’s failure to renew the objection did 14 not amount to ineffective assistance of counsel. The “[f]ailure to renew at trial a 15 motion concerning an evidentiary matter which has been denied in limine does not 16 constitute ineffective assistance of counsel.” State v. Martinez, 1996-NMCA-109, 17 ¶ 27, 122 N.M. 476, 927 P.2d 31. In this case, the district court denied Defendant’s 18 motion to exclude Ms. Wasmus’ testimony, including statements made by B.J. 19 regarding the abuse. Therefore, it was a legitimate trial strategy to remain silent out

9

1 of the belief that renewing the objection would only serve to make counsel appear 2 argumentative in front of the jury, especially where such objection would not likely 3 result in preventing the evidence from being introduced. See Lytle v. Jordan, 2001- 4 NMSC-016, ¶ 26, 130 N.M. 198, 22 P.3d 666 (stating that the appellate courts 5 presume that counsel provided adequate assistance and will not find error in counsel’s 6 performance where there exists a sound strategy or tactic to explain counsel’s 7 conduct). 8 D. Character Evidence 9 {15} Defendant argues that counsel was ineffective for failing to object to testimony 10 by a neighbor of the family who vouched for the honesty of Mother, A.J., and B.J. 11 Counsel stated in his affidavit that he did not object to this testimony because his trial 12 strategy was not to show that Mother and the children were intentionally lying, but 13 that the victims’ accusations were the product of Mother and her partner’s inadvertent 14 suggestions that created false memories of abuse. The district court concluded that 15 since counsel’s strategy was not to attack Mother and the children’s veracity, counsel 16 was not ineffective for failing to object to the testimony. The district court further 17 concluded that Defendant was not prejudiced by the testimony. 18 {16} We agree with the district court. Declining to object to the testimony fit into 19 counsel’s strategy not to characterize Mother and the children as intentionally lying

10

1 but instead to proffer that the accusations came about by suggestion and influence. 2 Thus, counsel could reasonably believe that an objection could appear aggressive and 3 argumentative to the jury. See State v. Peters, 1997-NMCA-084, ¶ 40, 123 N.M. 667, 4 944 P.2d 896 (“A failure to object . . . does not establish ineffective assistance of 5 counsel. Decisions concerning objections are considered to be in the area of trial 6 tactics and ineffective assistance is not necessarily established by showing 7 unsuccessful trial tactics.” (citation omitted)). Furthermore, this Court held in the first 8 appeal that the testimony did not “seriously affect the fairness or integrity of the trial, 9 nor [did] it create grave doubts concerning the validity of the verdict.” Dylan J., 2009- 10 NMCA-027, ¶ 32. Accordingly, because failing to object to the testimony was an 11 appropriate trial tactic by counsel and because the testimony was not prejudicial, we 12 conclude that counsel was not ineffective on this point. See Lytle, 2001-NMSC-016, 13 ¶¶ 26-27. 14 E. Accusations Involving A.J. 15 {17} Defendant argues that counsel was ineffective because he facilitated the 16 introduction of testimony and evidence regarding Defendant’s abuse of A.J. at 17 multiple times during the trial. During B.J.’s testimony, the State did not elicit 18 testimony regarding B.J. witnessing Defendant’s abuse of A.J. On cross-examination, 19 however, counsel asked B.J. whether he witnessed Defendant abusing A.J. Defendant

11

1 argues that this opened the door for the State to introduce testimony on re-direct that 2 B.J. witnessed a specific instance of abuse that would not otherwise have been 3 introduced at trial. Defendant further argues that counsel was ineffective when he 4 stipulated to the introduction of a recording of A.J.’s pretrial interview. Finally, 5 Defendant argues that counsel failed to object to accusations A.J. made against 6 Defendant about which Mother and her partner testified at trial. 7 {18} As to counsel’s cross-examination of B.J. and the stipulation regarding the 8 admission of A.J.’s pretrial interview, Defendant has not established that these 9 decisions were anything other than legitimate trial tactics or that he was prejudiced by 10 them. Counsel testified at the evidentiary hearing that he asked B.J. whether he 11 witnessed Defendant abusing A.J. because B.J.’s accusation regarding A.J. seemed 12 largely implausible. Similarly, counsel stipulated to the recording in order to show the 13 implausibility of certain accusations by A.J. and to show that the child could be led 14 into saying things that were untrue. The district court found that this was a legitimate 15 trial strategy because the statements were consistent with the defense’s theory that the 16 accusations were the result of adult influence and suggestion. 17 {19} Furthermore, even assuming counsel’s actions were not part of a legitimate trial 18 strategy, Defendant has not established prejudice. The jury did not convict Defendant 19 of anally abusing A.J., and A.J. himself testified that Defendant orally abused him.

12

1 Similarly, Defendant was not charged, nor did the jury convict Defendant of any 2 further accusations contained in the recording. Thus, neither B.J.’s testimony 3 regarding Defendant’s abuse of A.J. nor counsel’s stipulation to the admission of the 4 recorded interview present a sufficient probability that the result of the proceeding 5 would have been different but for the admission of this evidence. See Martinez, 2007- 6 NMCA-160, ¶ 19. 7 {20} Finally, counsel’s failure to object to Mother’s repetition of A.J.’s out-of-court 8 allegations of abuse does not constitute ineffective assistance of counsel. 1Defendant 9 does not present any argument as to how these statements prejudiced him other than 10 to contend that the statements were “rank hearsay.” However, these allegations of 11 abuse were supported by A.J.’s testimony and therefore do not undermine this Court’s 12 confidence in the outcome. See Martinez, 2007-NMCA-160, ¶ 19.

1

13 Defendant also claims that Mother’s partner testified to statements by B.J. 14 However, Defendant merely states that “[Partner] also discussed statements that B.J. 15 made to her outside the courtroom.” Defendant does not provide a citation to these 16 alleged statements, and we will not search the record for support for Defendant’s 17 contention. See Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 18 (“We will not search the record for facts, arguments, and rulings in order to support 19 generalized arguments.”).

13

1 F. Cumulative Error 2 {21} Defendant argues that the doctrine of cumulative error requires reversal. “The 3 doctrine of cumulative error requires reversal when a series of lesser improprieties 4 throughout a trial are found, in aggregate, to be so prejudicial that the defendant was 5 deprived of the constitutional right to a fair trial.” State v. Duffy, 1998-NMSC-014, 6 ¶ 29, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by State v. Tollardo, 7 2012-NMSC-008, 275 P.3d 110. However, having concluded that Defendant did not 8 receive ineffective assistance of counsel on any of the above alleged issues, 9 cumulative error is not applicable in this case. 10 II. Appellate Counsel 11 {22} Defendant argues, pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 12 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, 13 that his appellate counsel in the first appeal was ineffective for not raising two issues: 14 (1) that trial counsel failed to move to dismiss two indistinguishable counts of CSP 15 involving B.J., and (2) that the district court erred when it closed the courtroom to 16 members of the public. On remand, the district court concluded that it was without 17 jurisdiction to hear Defendant’s arguments regarding his appellate counsel. We agree 18 with the district court. On remand, the district court’s jurisdiction was limited by the 19 opinion and mandate of this Court. See Normand ex rel. Normand v. Ray, 1990-

14

1 NMSC-006, ¶ 20, 109 N.M. 403, 785 P.2d 743. In the initial appeal, we remanded for 2 the district court to hold an evidentiary hearing regarding the representation Defendant 3 received from his trial counsel. Dylan J., 2009-NMCA-027, ¶ 45. Therefore, the 4 district court properly declined to consider whether his appellate counsel was also 5 ineffective. 6 III. Remand Counsel 7 {23} Defendant argues that his counsel on remand was ineffective because he failed 8 to present expert testimony. Defendant argues that remand counsel should have hired 9 experts for the evidentiary hearing because the issue of trial counsel’s failure to hire 10 experts was of critical importance. Defendant states that remand counsel’s “failure to 11 do so prejudiced [Defendant’s] opportunity to show this Court how critical expert 12 testimony was to his defense at trial.” We are not persuaded that Defendant’s 13 perfunctory argument and the facts currently before us in the record are sufficient to 14 establish a prima facie claim of ineffective assistance of counsel. See State v. Roybal, 15 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 (“When an ineffective assistance 16 claim is first raised on direct appeal, we evaluate the facts that are part of the record. 17 If facts necessary to a full determination are not part of the record, an ineffective 18 assistance claim is more properly brought through a habeas corpus petition, although 19 an appellate court may remand a case for an evidentiary hearing if the defendant

15

1 makes a prima facie case of ineffective assistance.”). Accordingly, Defendant’s claim 2 would be more properly pursued in a habeas corpus proceeding. 3 CONCLUSION 4 {24} For the foregoing reasons, we affirm the district court. 5 {25} IT IS SO ORDERED.

6 7 J. MILES HANISEE, Judge

8 WE CONCUR:

9 ___________________________ 10 JONATHAN B. SUTIN, Judge

11 ___________________________ 12 CYNTHIA A. FRY, Judge