State v. Gonzales

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. 31,997 5 TOBY GONZALES, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY 8 Michael E. Vigil, District Judge

9 Gary K. King, Attorney General 10 Margaret E. McLean, Assistant Attorney General 11 Joel Jacobsen, Assistant Attorney General 12 Santa Fe, NM

13 for Appellee

14 Law Offices of Nancy L. Simmons, P.C. 15 Nancy L. Simmons 16 Albuquerque, NM

17 for Appellant 18 MEMORANDUM OPINION 19 SUTIN, Judge.

1 {1} A jury found Defendant Toby Gonzales guilty of kidnapping, conspiracy to 2 commit kidnapping, and tampering with evidence based on his involvement in the 3 kidnapping and murder of Steven Duran (the Victim). See NMSA 1978, § 30-4- 4 1(A)(4), (B) (2003) (defining kidnapping, a first degree felony); NMSA 1978, § 30- 5 28-2(A), B(1) (1979) (defining conspiracy and providing that, when the crime 6 conspired to be committed is a first degree felony, the conspiracy constitutes a second 7 degree felony); NMSA 1978, § 30-22-5(A), (B)(1) (2003) (defining tampering with 8 evidence and providing that, when it is related to evidence of a first degree felony, 9 tampering with evidence constitutes a third degree felony). The district court entered 10 its judgment against Defendant in accordance with the jury verdicts and sentenced 11 Defendant to thirty-three years imprisonment, followed by two years of parole. 12 Defendant appeals from the court’s judgment. 13 {2} On appeal, Defendant argues that the district court made erroneous evidentiary 14 rulings, he challenges the sufficiency of the evidence, and he argues that the court 15 erred in refusing to allow his counsel to withdraw. We hold that Defendant’s claims 16 of error provide no basis for reversal. We affirm. 17 BACKGROUND 18 {3} Defendant and Rudy Salazar were arrested on February 23, 2010, in connection 19 with a report that they were the last people to have been seen with the Victim who had

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1 been missing since February 18, 2010. After he was arrested, Salazar directed New 2 Mexico State Police agents to the Victim’s truck that was located in a remote area, 3 east of U.S. 285 in or near Chamita, New Mexico. The agents found a large amount 4 of blood in the bed of the truck, and there was evidence that someone had tried, 5 unsuccessfully, to light the truck on fire, using gasoline, brush, and tree branches. 6 {4} After he was arrested, Defendant was interviewed by two New Mexico State 7 Police Investigations Bureau agents, both of whom testified at Defendant’s trial. Joey 8 Gallegos, an agent with the New Mexico State Police Investigations Bureau, 9 interviewed Defendant three times. Agent Gallegos believed Defendant was lying in 10 the first interview conducted on February 23, 2010, because the information that 11 Defendant gave did not match information that Agent Gallegos received from Agent 12 Baca as a result of his interview with Salazar. However, Agent Gallegos testified that 13 as Defendant was walking away from the second interview also on February 23, 14 Defendant “mumbled something to the effect that, ‘You guys won’t find the truck.’ ” 15 The third interview, later the same day, with Defendant occurred after the agents had 16 found the Victim’s truck; and in light of that information, Defendant told Agent 17 Gallegos what had occurred on the night of February 18, 2010. 18 {5} According to Agent Gallegos, Defendant told him the following. On the 19 evening of February 18, 2010, the Victim and Rudy Salazar were at Defendant’s

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1 house with Defendant. Defendant borrowed the Victim’s truck so that he could drive 2 down the road to meet a girl. As Defendant was driving back to his home, he noticed 3 that the police were there, and when the police began chasing him, he led them on a 4 high-speed chase and “drove up to the hills,” thereby successfully evading the police. 5 Defendant phoned Salazar and the Victim from the hills and requested that they bring 6 him some gasoline. 7 {6} When Salazar and the Victim showed up with the gasoline, the three burned a 8 tree because it was cold outside, and began partying, using cocaine and drinking 9 alcohol. The Victim began “tripping out a little bit,” so Defendant tried to calm him 10 down. When the Victim was sitting down with his head between his legs and his 11 hands behind his head, Salazar became agitated with the Victim. Salazar approached 12 the Victim from behind and put a t-shirt round his neck and said something like, “I can 13 kill you. I can choke you at any time.” Salazar abandoned the t-shirt for some baling 14 twine and choked the Victim for a second time. Salazar approached the Victim a third 15 time, this time physically beating and choking him. After the choking and beating 16 incident, the Victim, who according to Defendant was “easily manipulated,” complied 17 with an order by Salazar and Defendant to get into the back of the truck. According 18 to Defendant, Salazar tied the Victim up with baling twine, and then, with the Victim 19 tied up in the back, Salazar and Defendant began driving off. As they started to drive,

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1 Salazar noticed that the Victim had managed to untie himself; they stopped the truck, 2 Salazar got out, choked the Victim to death, and they continued driving into the hills. 3 Defendant and Salazar took the Victim’s body out of the truck and burned it. Then 4 they drove the truck away from the Victim’s body until it got stuck. 5 {7} Agents found the Victim’s body on February 24, 2010. It was in an arroyo 6 approximately half a mile south from the location of the Victim’s truck. An autopsy 7 confirmed that the Victim had blunt force injury to his head, consisting of multiple 8 lacerations, there was evidence of ligature strangulation, and he had been extensively 9 burned. Because the Victim’s body had been so significantly burned, it was 10 impossible for the forensic pathologist who supervised and participated in the autopsy 11 to determine whether the blunt force injuries from the beating, the strangulation, or 12 the burning was ultimately responsible for the Victim’s death. 13 {8} Agent Abraham Baca testified, among other things, that he interviewed 14 Defendant on March 1, 2010. According to Agent Baca, at the outset of their 15 interview, Defendant requested an attorney and stated that he would give an honest 16 interview once he had an attorney present. Once Defendant requested an attorney, 17 Agent Baca concluded the interview, turned off his recorder, and was getting ready 18 to leave when Defendant “asked [Agent Baca] if [he] had found both scene[s].” Agent 19 Baca testified that Defendant “referred to two scenes[,]” one where the truck was

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1 found and the other “where they burned the tree[.]” Defendant also reportedly told 2 Agent Baca that the Victim’s shoes and a blue knife that Defendant and Salazar used 3 to cut the string, with which Salazar tied the Victim, were located at the scene of the 4 burned tree; and that Salazar “did the majority of it[,]” including having “hit [the 5 Victim] with a pipe[.]” Defendant reportedly asked Agent Baca if the police had 6 found the pipe and then said that “the minute he contacted his attorney[,]” he would 7 tell Agent Baca everything. 8 {9} Salazar pleaded guilty to second degree murder and first degree kidnapping for 9 his involvement in the Victim’s death; and Salazar’s plea was admitted into evidence 10 at Defendant’s trial. It was the district court’s understanding that, among other things, 11 the terms of Salazar’s plea required him to testify truthfully at Defendant’s trial. 12 Salazar did not testify. Defendant was tried by a jury on charges of second degree 13 murder, or in the alternative, accessory to second degree murder; kidnapping, or in the 14 alternative, accessory to kidnapping; tampering with evidence, and conspiracy to 15 commit kidnapping. The jury found Defendant guilty of kidnapping, tampering with 16 evidence, and conspiracy, but the jury could not reach a unanimous verdict on the 17 murder charges. Additional background regarding the trial will be provided as 18 necessary throughout the discussion section of this Opinion.

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1 {10} On appeal, Defendant argues that the district court erred in limiting Defendant’s 2 cross-examination of law enforcement officers regarding statements made by Salazar 3 and that the court’s ruling in that regard affected his constitutional right to confront 4 his accuser. He also argues that the district court erred in admitting Agent Baca’s 5 testimony and that the court erred in denying Defendant’s motion for a mistrial on the 6 basis of that agent’s allegedly perjured testimony. He also challenges the sufficiency 7 of the evidence and argues that the court erred in refusing to allow his counsel to 8 withdraw following allegations of ineffective assistance of counsel. We are not 9 persuaded by Defendant’s assertions of error; accordingly, we affirm his convictions.

10 DISCUSSION 11 I. Standard of Review 12 {11} Defendant’s claims of error require us to consider evidentiary and constitutional 13 issues, the propriety of the court’s denial of a mistrial, and the sufficiency of the 14 evidence supporting Defendant’s convictions. We review the court’s decision to 15 admit or exclude evidence for an abuse of discretion. See State v. Flores, 2010- 16 NMSC-002, ¶ 25, 147 N.M. 542, 226 P.3d 641. The district court’s denial of a motion 17 for mistrial is also reviewed for an abuse of discretion. State v. Gonzales, 2000- 18 NMSC-028, ¶ 35, 129 N.M. 556, 11 P.3d 131, overruled on other grounds by State

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1 v. Tollardo, 2012-NMSC-008, 275 P.3d 110. “An abuse of discretion occurs when 2 the ruling is clearly against the logic and effect of the facts and circumstances of the 3 case. We cannot say [that] the trial court abused its discretion by its ruling unless we 4 can characterize it as clearly untenable or not justified by reason.” Flores, 2010- 5 NMSC-002, ¶ 25 (internal quotation marks and citation omitted). We review issues 6 involving a defendant’s constitutional rights de novo. See State v. Lopez, 2011- 7 NMSC-035, ¶ 10, 150 N.M. 179, 258 P.3d 458. We review the sufficiency of the 8 evidence by considering whether, when viewed in the light most favorable to the 9 verdict, substantial direct or circumstantial evidence exists to support a conclusion that 10 the defendant was guilty beyond a reasonable doubt. State v. Torrez, 2013-NMSC- 11 034, ¶ 40, 305 P.3d 944. 12 II. Defendant’s Argument Regarding Salazar’s Statements 13 {12} On the first day of trial, Defendant filed a motion to exclude Salazar’s 14 statements to police during the investigation into the Victim’s murder, some of which 15 implicated Defendant in the murder. As a basis for the motion, Defendant stated that 16 Salazar would refuse to testify at trial, and he had not “made himself available to give 17 a witness statement prior to trial[.]” Accordingly, Defendant had not been afforded 18 an opportunity to confront Salazar in regard to any inculpatory statements made 19 against him, and the admission of those statements would violate Defendant’s

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1 constitutional right to confront witnesses against him. See State v. Walters, 2007- 2 NMSC-050, ¶¶ 23-24, 142 N.M. 644, 168 P.3d 1068 (recognizing that the admission 3 of incriminating statements of non-testifying co-defendants at the defendant’s trial 4 was a per se violation of the defendant’s right to confront the witnesses against him). 5 {13} When the State called Salazar to testify, he refused to do so notwithstanding the 6 district court’s finding that he did not have a Fifth Amendment right to remain silent 7 and notwithstanding the court’s order to testify. In light of Salazar’s clear intention 8 to not testify, Defendant’s counsel asked the court to consider Defendant’s motion to 9 exclude Salazar’s statements that implicated Defendant in the Victim’s murder. The 10 following exchange took place between Defendant’s counsel, the court, and the 11 prosecutor outside the presence of the jury.

12 [Defendant’s counsel]: I alluded to exclude any reference made 13 by Mr. Salazar. You have the motion.

14 The [c]ourt: I can’t imagine how they would come in.

15 [Defendant’s counsel]: Judge, it’s a formality that I think I need 16 to make[.]

17 The [c]ourt: The door could be open.

18 [Defendant’s counsel]: Barring opening the door, I don’t believe 19 any police agent or law enforcement officer can testify [to] anything that 20 Rudy Salazar said that inculpates [Defendant]. That’s not to say the 21 statements by Mr. Salazar can’t come in, but they can’t come in if they 22 include any inculpatory evidence against [Defendant].

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1 The [c]ourt: That’s correct. That’s the status of the law.

2 [Prosecutor]: Your Honor, I’d like to get a better ruling because 3 what happened is that [Defendant was] in one room being interrogated. 4 He was giving voluntary statements to Agent Gallegos. Mr. Salazar was 5 in another room giving voluntary statements to Agent Baca. They’re 6 going back and forth. Basically the reference would be, “[Defendant], 7 Rudy said this.” And in response to that, [Defendant] made statements. 8 Or, “We’ve been talking to Rudy and we know more.” It’s things like 9 that. Your Honor, I think as a matter of completeness all of the 10 statements and references to Rudy [sic – Defendant] should come in.

11 The [c]ourt: I think confrontation trumps completeness. I don’t 12 see how you can get that in.

13 [Prosecutor]: The other way it could come in is that sometimes 14 Mr. Salazar would say what he did and then he would go into statements 15 about “we.”

16 The [c]ourt: Again, . . . if he says what he did, that’s admissible. 17 But I don’t think—

18 [Prosecutor]: But in the same sentence he’s saying “we.”

19 The [c]ourt: I don’t think the we part comes in unless you can 20 show me some case law that says it can come in. Right now—

21 [Prosecutor]: I just want to make a clear record that Your Honor 22 is basically saying Crawford trumps the rule of completeness.

23 The [c]ourt: Correct. 24 [Defendant’s counsel]: And [Melendez-]Diaz.

25 The [c]ourt: Yeah. . . . . Now, I can envision ways the door can be 26 opened, but we’re not there yet. If the door is open I’ll let you know that 27 the door is open. And [Defendant’s counsel] would have to be careful 28 with that.

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1 {14} While Defendant agrees that the foregoing ruling was “clearly correct,” he 2 argues that the court’s expressed intention to suppress Salazar’s statements that 3 incriminated Defendant was rendered “illusory” by a later ruling. The later ruling 4 upon which Defendant’s argument is premised stemmed from another exchange 5 between the court, the prosecutor, and Defendant’s counsel, also outside of the jury’s 6 presence. In that exchange, Defendant’s counsel stated that he believed that Agents 7 Gallegos and Baca could testify that Agent Gallegos overheard Salazar tell Agent 8 Baca that, “ ‘I killed Steven Duran. I hit him with a pipe, and I kicked him in the 9 stomach.’ ” In response to Defendant’s counsel’s assertion that the foregoing 10 comment was admissible “as a statement against penal interest[,]” the court warned 11 Defendant’s counsel to be careful because if the court admitted that comment, “then 12 why wouldn’t a contradictory statement come in where he says something different[,]” 13 for example, “Salazar[’s statement] that he had nothing to do with it.” The court also 14 reiterated that it was “inclined not to allow any of . . . Salazar’s statements in.” 15 Defendant’s counsel responded by stating that he would rely on Salazar’s plea, which 16 was already before the jury, stating, “I don’t believe it opens any doors if we stay 17 away from [Salazar’s] statements, but to rely on a plea, that’s been filed with the 18 [c]ourt.”

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1 {15} In Defendant’s view, he should have been permitted to elicit testimony either 2 from Agent Gallegos or Agent Baca that Salazar had confessed to striking the Victim 3 without opening the door to the admission of Salazar’s statements to the contrary. 4 Defendant argues that “the [d]istrict [c]ourt’s mistaken ruling that Defendant’s 5 reliance on Salazar’s confession would open the door to the admission of [Salazar’s] 6 self-exculpatory statements” had the practical effect of “forcing [Defendant] to 7 abandon a critical portion of his defense to ensure his right to confront his accuser.” 8 {16} Defendant’s argument is based on a strained construction of what occurred at 9 trial and of its effect on his constitutional rights to present a defense and to confront 10 his accusers. Far from posing a potential threat to his confrontation right, the court 11 appears to have been solicitous of avoiding any such violation, first by granting 12 Defendant’s motion to exclude any of Salazar’s statements that implicated Defendant, 13 and later, by emphasizing that it was not inclined to allow any of Salazar’s statements 14 into evidence. Thus, Defendant’s assertion that the court’s expressed intention to 15 suppress Salazar’s incriminating statements regarding Defendant was “illusory” is 16 contradicted by the record. There was nothing illusory about any ruling. The court 17 fairly handled Defendant’s one-sided attempt to parse the agents’ testimony in such 18 a way as to admit Salazar’s confession but exclude any examination by the 19 prosecution about the confession.

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1 {17} Further, Defendant’s argument that his right to present a defense was pitted 2 against his right to confront his accuser provides no basis for reversal. Salazar’s 3 guilty plea to the Victim’s murder was placed into evidence, thus providing Defendant 4 with demonstrable proof of Salazar’s admission that he had killed the Victim. Indeed, 5 Defendant’s counsel made a tactical decision to rely on the plea rather than attempting 6 to elicit the details of or open the door to the State’s questions about Salazar’s 7 confession to the agents in order to present the defense that Salazar, not Defendant, 8 murdered the Victim. See State v. Ervin, 2008-NMCA-016, ¶¶ 29-30, 143 N.M. 493, 9 177 P.3d 1067 (stating that the appellate court will not second-guess the tactics of trial 10 counsel and will not hold that a defendant was prejudiced by his counsel’s decision 11 to forego cross-examination on a particular point). Given that Salazar’s confession 12 to the police merely corroborates his guilty plea, Defendant’s trial tactic seems to have 13 been little more than an attempt to lay the groundwork for an appellate argument of 14 reversible error. As well, no confrontation issue exists because the court ruled that 15 Salazar’s statements were not allowed in evidence. 16 {18} All this aside, Defendant did not argue in the district court that the court’s 17 warning to “be careful” prohibited him from presenting a defense, nor did he request 18 that the prosecutor demonstrate what, if any, of Salazar’s self-exculpatory or other 19 statements the prosecutor would have sought to elicit from the agents in a re-direct

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1 examination. Defendant’s counsel simply decided and announced that he would avoid 2 opening any doors by relying on Salazar’s plea to prove that Salazar had admitted 3 murdering the Victim. Defendant did not attempt to develop whether the prosecutor 4 would have attempted to present Salazar’s testimonial statements against Defendant, 5 what those statements were, and whether the court would have admitted them. Those 6 questions are purely hypothetical. Because Defendant did not argue in the district 7 court what he now argues on appeal, we conclude that Defendant’s argument was not 8 adequately preserved for our review. See State v. Varela, 1999-NMSC-045, ¶ 25, 128 9 N.M. 454, 993 P.2d 1280 (stating that in order to preserve an error for review, the 10 appellant must, with sufficient specificity, alert the district court to the claimed error 11 and invoke a ruling thereon); see also State v. Janzen, 2007-NMCA-134, ¶ 16, 142 12 N.M. 638, 168 P.3d 768 (stating that “the district court’s own musings” were not 13 sufficient to preserve an issue for review). 14 III. Defendant’s Argument Regarding Agent Baca’s Testimony 15 {19} By the time Defendant’s trial commenced, on December 14, 2011, Agent Baca 16 (hereinafter Baca) was employed by the Rio Arriba County Sheriff’s Office, and he 17 was no longer an agent with the State Police. In his capacity as a sergeant for the 18 Sheriff’s Office, Baca was at the courthouse, apparently providing security, at the 19 same time that jury selection in the present case was occurring on December 6, 2011.

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1 Baca encountered Defendant during a break in jury selection and engaged in a 2 conversation with him. According to a police report submitted by Baca on the eve of 3 trial, during his December 6, 2011, courthouse conversation with Defendant, 4 Defendant confessed to Baca that he had killed the Victim “while he was high on 5 drugs.” 6 {20} On the first day of Defendant’s trial, Defendant moved to suppress Baca’s 7 report pertaining to the alleged courthouse confession. On December 15, 2011, after 8 a hearing at which Baca testified, the court granted Defendant’s motion1. In regard 9 to the courthouse conversation, the court concluded that “there were some credibility 10 issues with Mr. Baca” and that it was “highly unlikely that the statement was made”; 11 however, the court expressly ruled that it did not believe that Baca had perjured 12 himself. Rather, the court excluded Baca’s report pertaining to his courthouse 13 conversation with Defendant on the ground that it constituted a Miranda violation. See 14 State v. Casares, 2014-NMCA-024, ¶¶ 5, 14, 318 P.3d 200 (recognizing the well- 15 settled proposition that, pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), a 16 suspect must be apprised of his Fifth Amendment rights before he is subjected to 17 custodial interrogation), cert. denied, 2014-NMCERT-001, ___ P.3d ___. The court’s 18 ruling as to the exclusion of Defendant’s purported courthouse confession is not at

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19 The December 15, 2011, hearing is not part of the record in this case.

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1 issue in this appeal. What is at issue in this appeal is Defendant’s subsequent motion 2 requesting that the court exclude or suppress Baca’s testimony pertaining to his March 3 1, 2010, interview with Defendant. 4 {21} On December 16, 2011, Defendant filed a motion “to exclude and/or suppress 5 all witness testimony of . . . Baca or in the alternative . . . for [a] mistrial for police 6 misconduct.” In his motion, Defendant argued that Baca perjured himself when he 7 testified on December 15, 2011; further, Defendant alleged that Baca “fabricated” his 8 report regarding the March 1, 2010, interview. As such, Defendant requested that the 9 court bar Baca from testifying regarding his March 1, 2010, interview or “grant a 10 mistrial based on [Baca’s] misconduct and dishonesty[.]” 11 {22} The court denied Defendant’s motion. The court reasoned that it did not make 12 a finding that Baca perjured himself at the December 15, 2011, hearing, only that 13 “there were some credibility issues with . . . Baca”; and that its finding in that regard 14 did not provide a basis on which to conclude that Baca was lying when he wrote a 15 report pertaining to the March 1, 2010, interview. On appeal, Defendant argues that 16 because the court found that Baca’s December 15, 2011, testimony regarding 17 Defendant’s alleged courthouse confession raised some credibility issues, the court 18 “was required to conclude that the potential prejudicial effect of Baca’s testimony 19 concerning Defendant’s [March 1, 2010,] confession outweighed its probative value”

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1 pursuant to Rule 11-403 NMRA. See id. (stating that “[t]he court may exclude 2 relevant evidence if its probative value is substantially outweighed by a danger of . . . 3 unfair prejudice”). 4 {23} Defendant concedes that he did not rely on Rule 11-403 when arguing, in the 5 district court, that Baca’s testimony regarding his March 1, 2010, interview with 6 Defendant should be excluded or suppressed. He argues, however, that the issue was 7 preserved by his argument that because Baca was not credible, he should be prohibited 8 from testifying. We do not agree with Defendant’s assertion that the issue of whether 9 Baca’s testimony should have been excluded pursuant to Rule 11-403 was preserved 10 in the district court. 11 {24} Defendant’s argument in the district court focused on what Defendant’s counsel 12 characterized as “an impossible situation[.]” Defendant’s counsel argued that he could 13 not advise the jury that Baca had been found not credible without also presenting the 14 context of the credibility issue, that is, Defendant’s alleged December 6, 2011, 15 courthouse confession. Defendant’s counsel further argued that allowing Baca to 16 testify regarding his March 1, 2010, interview with Defendant would be to “allow[] 17 the State to support perjury by putting . . . Baca on the stand to testify about a 18 statement done outside the presence of any recording devices.” As a legal basis for 19 these arguments, Defendant’s counsel generally referred to “confrontation and . . . due

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1 process and [the] right to a fair trial.” Thus, Defendant did not invoke a ruling as to 2 Baca’s testimony on the basis of Rule 11-403. 3 {25} Nevertheless, because Defendant’s Rule 11-403 argument on appeal and his 4 argument in the district court share an underlying premise, we briefly address it. 5 Defendant’s argument rests on the notion that because Baca’s credibility was lacking 6 in regard to the alleged statement at the courthouse, Baca’s report of the March 1, 7 2010, interview was likewise not credible. The district court rejected this notion and 8 admitted Baca’s testimony. The court’s decision did not constitute an abuse of 9 discretion. 10 {26} Baca’s report regarding his March 1, 2010, interview with Defendant was 11 recorded on a police report, the date of which report is not a matter of record, but the 12 recording was determined by the district court to have been timely. Defendant did not 13 present any evidence to prove or even to suggest that Baca had a motivation to lie in 14 that report. Cf. State v. Chavez, 2008-NMCA-125, ¶ 9, 144 N.M. 849, 192 P.3d 1226 15 (discussing indicia of reliability that should be considered by a district court in 16 deciding whether to admit a contemporaneous written note based on personal 17 observations). Moreover, the statements that Defendant reportedly made to Baca on 18 March 1, 2010, were later corroborated by the evidence that the agents found during 19 their investigation. Cf. id. (stating that other evidence or details corroborating a

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1 contemporaneous written statement affect the reliability determination). In light of 2 the evidence corroborating its truthfulness, we cannot conclude that the district court 3 acted contrary to “the logic and effect of the facts and circumstances of the case” by 4 allowing Baca to testify regarding the March 1, 2010, interview, and there was no 5 abuse of discretion. Gonzales, 2000-NMSC-028, ¶ 31 (internal quotation marks and 6 citation omitted). 7 {27} Defendant also argues that the district court “should have declared a mistrial, 8 based on the court’s mistake in having permitted Baca to testify” regarding 9 Defendant’s March 1, 2010, statements that were “likely obtained in violation of 10 Defendant’s Miranda rights.” Defendant’s argument is not supported by the record. 11 Baca testified that once Defendant stated that he would not proceed with the interview 12 until he had an attorney, Baca concluded his interview. Miranda protections did not 13 apply to Defendant’s voluntary statements thereafter. See State v. Fekete, 1995- 14 NMSC-049, ¶¶ 43-44, 120 N.M. 290, 901 P.2d 708 (stating that “Miranda protections 15 do not apply in those situations where [a person in police custody] volunteers 16 statements” that were not elicited by police). 17 {28} Defendant also argues that Baca’s testimony in response to cross-examination 18 raised “obvious problems with Baca’s credibility[,]” and, therefore, the district court 19 should have granted a mistrial on the basis that Baca’s testimony regarding the March

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1 1, 2010, interview constituted perjury. Defendant’s counsel aggressively and 2 thoroughly cross-examined Baca and, in so doing, succeeded in illuminating issues 3 regarding Baca’s memory, competence, or credibility. And although the district court 4 observed that Baca was “not the brightest person” and was “confused about some of 5 the questions[,]” the court found that there was not enough evidence to find that Baca 6 committed perjury. 7 {29} On appeal, Defendant does not argue that the court erred in failing to find that 8 Baca’s testimony was perjured. He argues instead that Baca was “likely either making 9 up the story of Defendant’s . . . confession or fabricating the attendant 10 circumstances[.]” Because Defendant does not attack the court’s failure to find that 11 Baca’s testimony was perjured, Defendant’s argument that the court should have 12 granted a mistrial on the basis of Baca’s perjury is unavailing. Insofar as the district 13 court did not find that Baca’s testimony was perjured, we cannot conclude the court 14 abused its discretion by failing to grant a mistrial on the basis that Baca had, in fact, 15 perjured himself. Any remaining questions regarding Baca’s credibility and the 16 persuasive value of his testimony were matters for the jury. See State v. Fuentes, 17 2010-NMCA-027, ¶ 17, 147 N.M. 761, 228 P.3d 1181 (noting that determining the 18 credibility of the witnesses and the weight to be given to their testimony are matters 19 for the jury).

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1 IV. Sufficiency of the Evidence 2 {30} Defendant argues that the jury verdicts were not supported by sufficient 3 evidence. Defendant’s argument is not specific as to the charges or elements of 4 charges that, in his view, were not proved by sufficient evidence; and we will not 5 search the record on Defendant’s behalf to determine whether his argument has merit. 6 See State v. Dominguez, 2014-NMCA__, ¶ 26, __ P.3d __ (Nos. 31,975 & 32,456, 7 Feb. 17, 2014) (recognizing that this Court will not search the record to find facts to 8 support a defendant’s argument). Moreover, viewing the evidence in a light most 9 favorable to the jury verdicts, Defendant’s third statement given to Agent Gallegos on 10 February 23, 2010, which was but a portion of the evidence presented against 11 Defendant over the course of a four-day trial, appears, itself, to constitute sufficient 12 evidence to support the jury verdicts. We reject Defendant’s sufficiency of the 13 evidence argument. 14 V. Defendant’s Issue With His Counsel 15 {31} Defendant argues that the district court erred in refusing to allow his counsel 16 to withdraw following Defendant’s allegation that his counsel was ineffective. 17 Defendant states that he, his counsel, and the court discussed the matter in camera, and 18 off the record. Following this in camera discussion, Defendant withdrew his request 19 to allow his counsel to withdraw, and his counsel represented him for the duration of

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1 trial. Defendant does not develop an argument to show how the foregoing constituted 2 error. We will not consider this unclear and undeveloped argument further. See State 3 v. Hererra, 2014-NMCA-007, ¶ 24, 315 P.3d 343. 4 CONCLUSION 5 {32} For the foregoing reasons, we affirm Defendant’s convictions. 6 {33} IT IS SO ORDERED.

7 __________________________________ 8 JONATHAN B. SUTIN, Judge

9 WE CONCUR:

10 _________________________________ 11 MICHAEL D. BUSTAMANTE, Judge

12 _________________________________ 13 LINDA M. VANZI, Judge