State v. Kant

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. 30,581 5 JERRY KANT, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 8 Louis P. McDonald, 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 Natalie Bruce 15 Albuquerque, NM

16 for Appellant

17 MEMORANDUM OPINION 18 CASTILLO, Chief Judge.

1 Defendant appeals from his conviction on two counts of battery with a deadly 2 weapon, stemming from a bloody brawl that broke out in the early morning hours of 3 August 9, 2008, at a home in Rio Rancho, New Mexico. Defendant raises seven 4 issues on appeal. We affirm. 5 BACKGROUND 6 Because both parties are familiar with the events in dispute, we review just the 7 basic facts here before proceeding to our discussion. Defendant and three co- 8 defendants were charged with a number of offenses relating to a violent altercation 9 that occurred during a party held in the yard and driveway at the home of Robert 10 Montaño, one of four victims of the altercation. Guests at the party included Steve 11 Jimenez, Carlos Santiago, and Arnold Conejo. The clash started when co-defendant 12 Samuel Urioste and a friend rode up to the home on bicycles, engaged the partygoers 13 in conversation, and were each given a beer. Testimony conflicts as to whether 14 Samuel left and returned or immediately became involved in an altercation with some 15 of the four victims. Within about ten minutes, Samuel’s brother, Leondro Urioste, and 16 two friends, including Defendant, drove up to the house, walked up the driveway, and 17 began fighting with the victims. The melee involved the use of a set of brass 18 knuckles, a metal chair, the handle to a sprinkler system, and a gun. Robert’s wife, 19 Janet Gonzales, called 911, and she described some of the events to a police

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1 dispatcher. Defendant and co-defendants eventually drove off with the seriously 2 injured Samuel in the front seat and their vehicle was stopped less than a half mile 3 from the scene. 4 Defendant was convicted of two counts of aggravated battery with a deadly 5 weapon, and he was acquitted of conspiracy. He raises seven issues on appeal. He 6 contends that the court erred (1) in admitting photographs of the injured victims, (2) 7 in admitting the recording of a 911 call made by one of the victim’s wife, (3) in 8 admitting the brass knuckles allegedly used in the attack into evidence, (4) in rejecting 9 jury instructions on self-defense and the right to not retreat, (5) in denying a motion 10 for directed verdict as to the charge of aggravated battery with a deadly weapon, (6) 11 in denying a motion for directed verdict on the conspiracy charge, and he complains 12 (7) that he received ineffective assistance of counsel for his attorney’s failure to file 13 a motion to dismiss based on deficiencies in the police investigation. We address his 14 arguments in order. 15 DISCUSSION 16 1. Admission of Photographs 17 Defendant first argues that the district court erred in allowing photographs of 18 two of the bruised and bloody victims to be admitted into evidence because the 19 photographer, Arnold’s girlfriend Arlene, was not called to testify and help lay a

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1 foundation for the photos. Preliminary questions on admissibility of evidence are 2 determined by the trial judge. See Rule 11-104(A) NMRA. We review a district 3 court’s decision whether to admit or exclude evidence for abuse of discretion. Ruiz 4 v. Vigil-Giron, 2008-NMSC-063, ¶ 7, 145 N.M. 280, 196 P.3d 1286 (per curiam). 5 “For authentication of still photographs, the required foundation is that the 6 pictures fairly and accurately represent that which is shown by the pictures.” State v. 7 Thurman, 84 N.M. 5, 8, 498 P.2d 697, 700 (Ct. App. 1972). Such testimony is 8 sufficient for photographs to be admitted into evidence. See State v. Foster, 82 N.M. 9 573, 575, 484 P.2d 1283, 1285 (Ct. App. 1971). In Foster, the victim “testif[ied] that 10 each of the photographs fairly and accurately represented the things shown in the 11 photographs and fairly and accurately represented what he had described in his 12 testimony.” Id. The victim also did not know who took the photos or when they were 13 taken, and we concluded that testimony from the photographer was not required to 14 admit the photos into evidence. See id. In the case before us, Defendant cites no 15 statute, rule or case law from New Mexico to the contrary. At trial, Robert testified 16 as to the injuries allegedly caused by Defendant, and he identified the photographs 17 introduced into evidence as accurate depictions of the injuries he suffered. Such 18 testimony was sufficient to authenticate the photographs such that the district court 19 did not abuse its discretion in allowing them to be admitted into evidence.

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1 2. Admission of 911 Recording 2 Defendant also contests the district court’s ruling to admit a recording of the 3 911 emergency call made to police by Robert’s wife, Janet, because the police 4 dispatch operator was not called to authenticate the recording. We review for abuse 5 of discretion. Ruiz, 2008-NMSC-063, ¶ 7. 6 As noted in the previous section, a piece of evidence may be authenticated by 7 witness testimony that identifies the piece of evidence as being what its proponent 8 claims it to be. See Rule 11-901(A) NMRA (stating that the requirement of 9 authentication or identification as a condition precedent to admissibility is satisfied 10 by evidence sufficient to support a finding that the matter in question is what its 11 proponent claims). An opinion about a voice electronically recorded satisfies the 12 requirement of the rule. See Rule 11-901(B)(5). We have previously stated that the 13 “[i]dentification of a voice, whether heard firsthand or through mechanical or 14 electronic transmission or recording, can be made by opinion based on hearing the 15 voice at any time under circumstances connecting it with the alleged speaker.” State 16 v. Garcia, 110 N.M. 419, 425, 796 P.2d 1115, 1121 (Ct. App. 1990). 17 In the case before us, Janet testified that she spoke to a 911 dispatch operator 18 during the attack and gave the operator an eyewitness account of what she was seeing, 19 including one co-defendant pointing a gun at her. Gonzales testified that she listened

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1 to the CD recording of that 911 call and that the contents of the CD recording 2 accurately reflected the conversation she had with the police dispatcher during the 3 attack. The district court, citing Garcia, concluded that such testimony was sufficient 4 to satisfy Rule 11-901 because the testimony provided sufficient evidence to support 5 a finding that the recording was of what the State claimed it to be. We interpret Rule 6 11-901 the same way and cannot say that the district court abused its discretion in 7 admitting the 911 recording. 8 On appeal, Defendant argues that in order for an audio recording to be admitted, 9 it must be shown that the recording device operated properly, that the operator of the 10 device was competent, and that the recording was not subsequently altered. See State 11 v. Baca, 82 N.M. 144, 146, 477 P.2d 320, 322 (Ct. App. 1970), overruled on other 12 grounds by State v. Jojola, 89 N.M. 489, 490, 553 P.2d 1296, 1297 (Ct. App. 1976). 13 The rule stated in Baca, however, predates by about five years the evidentiary rule 14 governing the authentication and identification of an item of evidence. New Mexico’s 15 Rule 11-901 is based on Rule 901 of the Federal Rules of Evidence that was enacted 16 in 1975. See Fed. R. Evid. 901; Estate of Romero ex rel. Romero v. City of Santa Fe, 17 2006-NMSC-028, ¶ 8, 139 N.M. 671, 137 P.3d 611 (noting that “New Mexico Rules 18 of Evidence generally follow the federal rules of evidence”). Further, the example 19 given at Rule 11-901(B)(9) allowing “[e]vidence describing a process or system and

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1 showing that it produces an accurate result” tracks with the Baca reasoning and 2 merely provides an alternate way of authenticating a recording. The district court’s 3 ruling fits comfortably within Rule 11-901 and did not constitute an abuse of 4 discretion. 5 3. Admission of Brass Knuckles 6 Defendant next argues that the district court erred in admitting into evidence the 7 brass knuckles allegedly used by Defendant during the altercation. He contends that 8 proper police procedure was not followed, including gaps in the chain of custody. He 9 postulates that the set of brass knuckles presented as evidence may have been different 10 from that found at the scene of the crime or that the evidence might have been 11 tampered with. As above, we review the court’s decision whether to admit or exclude 12 evidence for abuse of discretion. Ruiz, 2008-NMSC-063, ¶ 7. We will find no abuse 13 of discretion when the state shows by a preponderance of the evidence that the item 14 of evidence is what it purports to be. See State v. Peters, 1997-NMCA-084, ¶ 26, 123 15 N.M. 667, 944 P.2d 896. 16 “In order to admit real or demonstrative evidence at trial, the item of evidence 17 in question must be identified, either visually or by establishing the custody of the 18 object from the time it was seized to the time it is offered in evidence.” State v. 19 Chavez, 84 N.M. 760, 761, 508 P.2d 30, 31 (Ct. App. 1973). The state need not

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1 establish the chain of custody with such precision as to exclude all possibility of 2 tampering. See Claridge v. N.M. State Racing Comm’n, 107 N.M. 632, 641, 763 P.2d 3 66, 75 (Ct. App. 1988). Any questions about a gap in the chain of custody when 4 handling evidence goes to the weight of the evidence and not to its admissibility. Cent. 5 Sec. & Alarm Co. v. Mehler, 1996-NMCA-060, ¶ 30, 121 N.M. 840, 918 P.2d 1340. 6 Here, a police officer provided both a visual identification of the brass knuckles 7 and vouched for its journey through the chain of custody. Officer Brown testified that 8 he found the brass knuckles covered in what appeared to be blood stains on the other 9 side of a wall running along the property where the fight occurred. Officer Brown 10 testified that the set of brass knuckles presented before the court was the same item 11 he collected and photographed at the scene during the morning of the altercation, 12 including similar blood stains. In addition to visually identifying the object, Officer 13 Brown described the procedure used to secure the evidence. He testified that he 14 photographed the set of brass knuckles after finding it, placed it in a paper bag, sealed 15 the bag with evidence tape, labeled the bag with the case number and the date, and 16 logged the bag into an evidence container at the Rio Rancho Police Department. Just 17 before trial, Officer Brown testified that he had retrieved the still-sealed bag from the 18 evidence custodian, broken the seal, and identified the brass knuckles as the same item 19 he had discovered at the scene.

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1 The State presented a substantial amount of evidence linking the item found at 2 the scene with the one presented at court. After hearing Officer Brown’s testimony, 3 the district court admitted the evidence. We conclude that, based on the evidence 4 presented in the form of Officer Brown’s testimony, the district court did not abuse 5 its discretion in finding that the State adequately established that the item presented 6 in court met the threshold for admissibility. 7 4. Jury Instruction on Self-Defense and Retreat 8 Defendant next argues that the district court erred in denying his request for a 9 jury instruction on self-defense and the right of a combatant to not retreat. “The 10 propriety of denying a jury instruction is a mixed question of law and fact that we 11 review de novo.” State v. Boyett, 2008-NMSC-030, ¶ 12, 144 N.M. 184, 185 P.3d 355 12 (internal quotation marks and citation omitted). 13 Before analyzing the merits of this issue, we first address the State’s argument 14 that Defendant failed to preserve this issue for appeal. In general, we will decline to 15 review a court’s denial of a request for a jury instruction if the issue has not been 16 preserved through submitting such a request and objecting to the denial of the request. 17 See State v. Badoni, 2003-NMCA-009, ¶ 7, 133 N.M. 257, 62 P.3d 348. Our rules 18 state that “[t]o preserve a question for review it must appear that a ruling or decision 19 by the district court was fairly invoked.” Rule 12-216(A) NMRA; see also Schuster

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1 v. State Dep’t of Taxation & Revenue, Motor Vehicle Div., 2012-NMSC-025, ¶ 33, 2 283 P.3d 288. Exceptions are allowed for matters of general public interest or for 3 fundamental error. See Rule 12-216(B). We have recently stated that reasons behind 4 the rule are:

5 (1) to specifically alert the district court to a claim of error so that any 6 mistake can be corrected at that time, (2) to allow the opposing party a 7 fair opportunity to respond to the claim of error and to show why the 8 district court should rule against that claim, and (3) to create a record 9 sufficient to allow this Court to make an informed decision regarding the 10 contested issue.

11 Kilgore v. Fuji Heavy Indus. Ltd., 2009-NMCA-078, ¶ 50, 146 N.M. 698, 213 P.3d 12 1127. 13 In the case before us, there is no evidence that Defendant objected to the district 14 court’s refusal to allow a jury instruction for self-defense and the right to not retreat 15 as to Defendant. A review of the discussion of jury instructions before the court at the 16 end of the penultimate day of trial reveals the following events. 17 The issue of a self-defense instruction was first brought up by the State, which 18 explained that it had received from co-defendant Samuel UJI 14-5190 NMRA, an 19 instruction on the right to not retreat. The court first addressed the threshold issue of 20 Samuel’s right to self-defense and noted that “there is really not any evidence of self- 21 defense.” The court later stated: “So it doesn’t sound like he’s really got a self- 22 defense argument.” The court rejected the UJI but then moved on to entertain a jury

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1 instruction for the other three co-defendants for defense of another. The court 2 appeared to confuse self-defense with the defense of another and stated the opposite 3 of what it intended: “I’ll allow the self-defense suggested earlier in your elements 4 instruction and the statement in the instruction I’m allowing on self-defense, but 5 there’s not a defense of another.” Defendant’s attorney recognized the confusion 6 because he immediately gave the court a copy of an instruction for defense of another, 7 and the court promptly asked the State if it objected to the instruction for defense of 8 another. The parties proceeded to debate whether the instruction for defense of 9 another should include the version that involves a response with deadly force. When 10 the parties finally agreed on a version of the instruction for defense of another, the 11 court announced that it would allow UJI 14-5182 NMRA, the version of the 12 instruction for defense of another that does not mention deadly force. 13 The court then moved on to the propriety of an instruction for the right to not 14 retreat, UJI 14-5190 that was agreed to by the State. In attempting to clarify the actual 15 language to be used in the instruction, the following exchange occurred:

16 Court: But [UJI 14-5190] needs to be modified to indicate it’s the 17 defense of another. Do you have objection to that from . . . defense 18 counsel? 19 [Defendant’s Counsel]: No, [y]our honor.

20 A few moments later, Defendant’s counsel summed up the agreement among the 21 parties:

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1 [Defendant’s Counsel]: I think just self-defense to the defense of, 2 not the defense of another. So I think it’s not—there is a no for the three 3 of us. We can’t say self-defense. It would be the defense of another. 4 Court: Defense of another is just like self-defense, only that 5 you’re going to the rescue of someone else. 6 [Defendant’s Counsel]: I understand that.

7 (Emphasis added.) The court eventually rejected an instruction for the right to not 8 retreat following this exchange:

9 Court: You’re saying everybody is agreeing a person who is 10 threatened with an attack need not retreat. I don’t think that even really 11 applies in this situation. 12 [Defendant’s Counsel]: I agree. I think it’s self-defense. 13 Court: That’s not coming in either. 14 [Defendant’s Counsel]: Right. 15 Court: We’ll not give either [self-defense or right to not retreat]. 16 We’ll just give [UJI] 14-5182 [defense of another]. 17 [Defendant’s Counsel]: Right. I think those [rejected instructions] 18 go to self-defense, not defense of another. 19 Court: Right 20 [Defendant’s Counsel]: Right.

21 (Emphasis added.) 22 It is clear from context that the court rejected jury instructions on self-defense 23 and the right to not retreat. At no time did Defendant’s counsel object to the court’s 24 ruling. In fact, Defendant’s counsel expressed agreement with the court’s ruling. The 25 court eventually allowed a jury instruction on behalf of Defendant for defense of 26 another. No instruction was given for self-defense or the right to not retreat. 27 We conclude that Defendant concurred as the district court sorted out the jury

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1 instructions and did not object when the court eventually chose the instruction for 2 defense of another, rejecting the instructions for self-defense and the right to not 3 retreat. In fact, Defendant’s counsel never argued that Defendant was entitled to a 4 self-defense instruction, and a self-defense instruction was not included among 5 Defendant’s requested jury instructions. In sum, Defendant abandoned any claim to 6 the request for a self-defense instruction first noted by the State before the court or for 7 an instruction on the right to not retreat, and his argument fails all three prongs of the 8 Kilgore test: Defendant’s counsel failed to argue in favor of either jury instruction 9 and thus invoke a ruling by the court, opposing counsel was not given an opportunity 10 to argue the merits of the jury instructions, and the record is not fully developed on 11 the matter. 2009-NMCA-078, ¶ 50. We conclude that Defendant failed to preserve 12 this argument, and we decline to address it. 13 As to the jury instruction for the right to not retreat, we further note that the trial 14 court was not required to give this instruction because the giving of UJI 14-5190 is 15 premised on a claim of self-defense. See State v. Nozie, 2007-NMCA-131, ¶ 14, 142 16 N.M. 626, 168 P.3d 756 (rejecting the defendant’s claim that he was entitled to UJI 17 14-5190 where he did not put self-defense at issue). 18 5. Directed Verdict for Aggravated Battery With a Deadly Weapon 19 Defendant contends that the district court erred in denying his motion for

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1 directed verdict as to aggravated battery with a deadly weapon, because no witness 2 sufficiently linked the two weapons involved during the attack—brass knuckles and 3 a metal chair—to Defendant. A directed verdict is a drastic measure that is generally 4 disfavored in that it threatens to interfere with the jury’s function and one’s right to 5 a trial by jury. See Perez v. City of Albuquerque, 2012-NMCA-040, ¶ 7, 276 P.3d 6 973. A trial court should not grant a motion for directed verdict unless it is clear that 7 “the facts and inferences are so strongly and overwhelmingly in favor of the moving 8 party that the judge believes that reasonable people could not arrive at a contrary 9 result.” Melnick v. State Farm Mut. Auto. Ins. Co., 106 N.M. 726, 729, 749 P.2d 10 1105, 1108 (1988). “Any conflicts in the evidence or reasonable interpretations of the 11 evidence are viewed in favor of the party resisting the directed verdict.” Sunwest 12 Bank of Clovis, N.A. v. Garrett, 113 N.M. 112, 115, 823 P.2d 912, 915 (1992). “We 13 review de novo the district court’s decisions on the motions for directed verdict.” 14 Perez, 2012-NMCA-040, ¶ 7. Specifically, our inquiry “asks whether sufficient 15 evidence was adduced to support the underlying charge.” State v. Sena, 16 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198. 17 In the case before us, the district court found sufficient evidence of a link 18 between Defendant and a weapon to send the question to the jury. “The test for 19 sufficiency of the evidence is whether substantial evidence of either a direct or

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1 circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt 2 with respect to every element essential to a conviction.” Id. (internal quotation marks 3 and citation omitted). “Substantial evidence is such relevant evidence that a 4 reasonable mind would find adequate to support a conclusion.” Landavazo v. 5 Sanchez, 111 N.M. 137, 138, 802 P.2d 1283, 1284 (1990). The State was required to 6 prove that Defendant touched or applied force to Arnold or Carlos with the brass 7 knuckles or metal chair with the intent to injure them. See UJI 14-322 NMRA. 8 Defendant contends that neither of those two victims described actually seeing brass 9 knuckles or a metal chair in Defendant’s possession and that witnesses instead 10 suggested that others wielded the weapons. Defendant also hypothesizes that one of 11 the victims may have used the set of brass knuckles that were found at the spot where 12 Carlos hopped over the wall along the property. 13 The State presented witness testimony that offered evidence of an attack by 14 Defendant with a weapon. Robert testified that Defendant hit him in the face with 15 what felt like a brick, and then he saw Defendant attack Arnold. Arnold testified that 16 Defendant hit him in the face with a sharp object. Officer Brown found the set of 17 brass knuckles at the scene and noted that the victims’ injuries were the result of 18 blows that were landed with more than just hands and fists. Robert testified that he 19 saw Defendant pick up the chair and move toward Carlos intending to hit him on the

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1 head with it. Carlos testified that he saw an object coming at him from above and that 2 he raised his arm to block it and blunt its impact. He also testified that he was hit with 3 a punch that seemed like it was more than just a fist. In addition to the set of brass 4 knuckles, a metal chair was found at the scene by police. The evidence presented by 5 the State was substantial enough to convince a reasonable juror that Defendant had 6 attacked at least two of the victims with either brass knuckles or a metal chair. Cf. 7 Landavazo, 111 N.M. at 138, 802 P.2d at 1284 (“Evidence is substantial even if it 8 barely tips the scales in favor of the party bearing the burden of proof.”). We are not 9 swayed by the fact that Defendant posits plausible alternative theories and 10 explanations. See Las Cruces Prof’l Fire Fighters v. City of Las Cruces, 1997- 11 NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177 (“The question is not whether 12 substantial evidence exists to support the opposite result, but rather whether such 13 evidence supports the result reached.”). Therefore, we conclude that the district court 14 did not abuse its discretion in denying Defendant’s motion for a directed verdict on 15 the charge of aggravated battery with a deadly weapon. 16 6. Directed Verdict for Conspiracy 17 Defendant also argues that there was insufficient evidence to support the count 18 of conspiracy and that therefore his motion for directed verdict should have been 19 granted. The State argues that, because Defendant was acquitted of the charge of

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1 conspiracy, the issue is moot. 2 We focus on the question of mootness. “A reviewing court generally does not 3 decide academic or moot questions,” Crutchfield v. N.M. Dep’t of Taxation & 4 Revenue, 2005-NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273, and “[a] case will be 5 dismissed for mootness if no actual controversy exists.” City of Las Cruces v. El Paso 6 Elec. Co., 1998-NMSC-006, ¶ 16, 124 N.M. 640, 954 P.2d 72. However, an appellate 7 court may address such a case on the merits if it presents issues that are of substantial 8 public interest or are capable of repetition yet evading review. Cobb v. State 9 Canvassing Bd., 2006-NMSC-034, ¶ 14, 140 N.M. 77, 140 P.3d 498. The issue of 10 mootness is a jurisdictional question that we review de novo. See Garcia v. Dorsey, 11 2006-NMSC-052, ¶ 13, 140 N.M. 746, 149 P.3d 62; In re Qwest Commc’ns Int’l, Inc., 12 2002-NMSC-006, ¶ 3, 131 N.M. 770, 42 P.3d 1219. 13 Defendant’s main argument against mootness is that we have the ability to grant 14 a new trial on only the two counts of aggravated battery with a deadly weapon, which 15 would offer him a chance to adjust his trial strategy without the potential for a 16 conspiracy conviction. Defendant does not complain that the State had no basis to 17 bring the charge of conspiracy in the first instance—merely that the State had not 18 proved its case. Either way, because we affirm the district court on all counts and do 19 not grant a new trial on any issue, Defendant’s argument has no merit. We also do not

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1 find Defendant’s conviction for conspiracy to present us with an issue of substantial 2 public interest; nor is it one capable of repetition yet evading review. We conclude 3 that the issue is moot, and we therefore do not address the question of whether a 4 directed verdict was proper. 5 7. Ineffective Assistance of Counsel 6 Finally, Defendant contends that he received ineffective assistance of counsel 7 because his attorney failed to file a motion to dismiss based on alleged deficiencies 8 in the investigation of the crime scene by police officers. “Questions of ineffective 9 assistance of counsel are reviewed de novo.” State v. Joanna V., 2003-NMCA-100, 10 ¶ 11, 134 N.M. 232, 75 P.3d 832, aff’d, 2004-NMSC-024, 136 N.M. 40, 94 P.3d 783. 11 In general, assistance of counsel is presumed to be effective. See State v. 12 Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. To establish a prima 13 facie case of ineffective assistance of counsel, a defendant has the burden of proving 14 that (1) his attorney’s performance fell below that of a competent attorney and (2) he 15 was prejudiced by that deficient performance. State v. Hester, 1999-NMSC-020, ¶ 9, 16 127 N.M. 218, 979 P.2d 729. In reviewing whether a defendant has met the burden 17 of establishing such a prima facie case, we will not second-guess the trial tactics of the 18 attorney. Id. ¶ 11. We note that our Supreme Court has stated that “habeas corpus 19 proceedings are the preferred avenue for adjudicating ineffective assistance of counsel

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1 claims, because the record before the trial court may not adequately document the sort 2 of evidence essential to a determination of trial counsel’s effectiveness.” State v. 3 Grogan, 2007-NMSC-039, ¶ 9, 142 N.M. 107, 163 P.3d 494 (alteration, internal 4 quotation marks, and citation omitted). 5 Defendant focuses his argument on deficiencies in the police investigation and 6 claims that his attorney was incompetent for failing to file a motion to dismiss based 7 on those grounds. Defendant contends that the police investigation was deficient 8 because officers (1) conducted a prejudicial show-up identification, (2) did not test the 9 alcohol level of the victims, (3) failed to conduct DNA testing of the blood on the 10 brass knuckles, (4) failed to gather fingerprint evidence, (5) never reviewed 11 Defendant’s cellular phone records, (6) failed to search for evidence of alcohol 12 containers in the garbage, and (7) failed to investigate additional witnesses. Defendant 13 argues that, because of this deficient investigation, he was entitled to dismissal of the 14 charges pursuant to State v. Ware, 118 N.M. 319, 881 P.2d 679 (1994), which 15 provides a remedy for defendants prejudiced by law enforcement’s failure to 16 adequately collect material evidence at a crime scene. 17 In Ware, the Court articulated a two-part test for determining whether the 18 State’s failure to collect evidence deprives a defendant of a fair trial:

19 The first factor is whether the evidence is relevant, material, or important 20 to the defense, as opposed to extraneous or duplicative of other evidence.

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1 The second factor goes to the character of the officers investigating the 2 crime scene—whether they acted in good faith, bad faith, or negligently 3 when deciding not to gather the specific evidence at the crime scene.

4 Id. at 325, 881 P.2d at 685 (citations omitted). As to the first prong, evidence is 5 considered material “only if there is a reasonable probability that, had the evidence 6 been available to the defense, the result of the proceeding would have been different.” 7 Id. (alteration, internal quotations marks, and citations omitted). As to the second 8 prong, a court must determine whether law enforcement’s failure to collect evidence 9 was done in bad faith or was the result of the officers’ gross negligence. See id. 10 “When the failure to gather evidence is merely negligent, an oversight, or done in 11 good faith, sanctions are inappropriate[.]” Id. 12 The question before us is whether Defendant’s counsel was ineffective for 13 failing to pursue a motion to dismiss under Ware based on the seven allegations noted 14 above. We first note, as the State points out, that five of Defendant’s 15 allegations—relating to the failure to conduct a lineup, test the blood sample for DNA, 16 check the brass knuckles collected at the scene for fingerprints, pull the phone records 17 of the co-defendants, and pursue other witnesses for questioning—have nothing to do 18 with collecting evidence at the scene but rather go to the investigation’s procedures. 19 None of those aspects of the investigation fall under the Ware analysis. See State v. 20 Chandler, 119 N.M. 727, 735, 895 P.2d 249, 257 (Ct. App. 1995) (stating that failing

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1 to file a motion that would prove futile does not constitute ineffective assistance of 2 counsel), modified on other grounds by State v. Vargas, 2007-NMSC-006, 140 N.M. 3 864, 149 P.3d 249. We now turn to the two remaining allegations. 4 Defendant faults the officers for not searching trash bins for further evidence. 5 However, he offers no details and makes no argument as to how such evidence would 6 have been relevant or material to his defense or whether officers’ failure to search the 7 trash bins may have been an act of bad faith or gross negligence. We will not make 8 Defendant’s argument for him. See Headley v. Morgan Mgmt. Corp., 9 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 (“We will not review unclear 10 arguments, or guess at what [a party’s] arguments might be.”). 11 Finally, Defendant notes that police failed to test the blood-alcohol content of 12 the victims. Officer Brown testified that two of the victims suffered “massive 13 injuries” and needed to be taken to the hospital immediately, which made it 14 implausible to photograph the victims let alone hold them to perform blood tests. And 15 while the other two victims were not in need of hospital care, officers at the scene 16 noted that both men had been drinking and appeared to be intoxicated, and 17 photographs were taken of beer cans strewn on the property. It is questionable that 18 a blood-alcohol test would be material to the issue of the credibility of the victims or 19 change the outcome of the case, considering the abundance of evidence of drinking

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1 at the party and the admission by the victims who testified that they had been drinking 2 as early as 2:00 p.m. the day before the fight broke out in the early morning hours of 3 August 9, 2008. Even if a blood-alcohol test were deemed to be material to the 4 investigation, Defendant can point to no evidence that the officers’ decision not to test 5 the victims’ blood-alcohol levels was a result of bad faith or gross negligence. The 6 strategy of Defendant’s attorney to opt against a motion for dismissal based on the 7 failure to search trash bins and or to perform blood tests on the victims does not rise 8 to the level of ineffective assistance of counsel. 9 III. CONCLUSION 10 For the foregoing reasons, we affirm Defendant’s conviction. 11 IT IS SO ORDERED.

12 __________________________________ 13 CELIA FOY CASTILLO, Chief Judge

14 WE CONCUR:

15 __________________________________ 16 JAMES J. WECHSLER, Judge

17 __________________________________ 18 MICHAEL D. BUSTAMANTE, Judge