1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see 2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 3 also note that this electronic memorandum opinion may contain computer-generated errors or other 4 deviations from the official paper version filed by the Court of Appeals and does not include the 5 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. 27,617
10 LARRY A.,
11 Child-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 13 William Birdsall, District Judge
14 Gary K. King, Attorney General 15 Andrew S. Montgomery, Assistant Attorney General 16 Santa Fe, NM
17 for Appellee
18 Hugh W. Dangler, Chief Public Defender 19 J.K. Theodosia Johnson, Assistant Appellate Defender 20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 FRY, Chief Judge.
24 In October 2005, on a county road in Bloomfield, New Mexico, a shootout took
25 place in which one person was killed and two others suffered life-threatening gunshot 1 wounds. As a result of the shootout, Child was charged with assault, battery, shooting
2 at a motor vehicle, and unlawful possession of a firearm. Following a jury trial, Child
3 was convicted of all the charges against him except battery. Because Child was a
4 juvenile, the trial court held an amenability hearing to determine whether Child should
5 be sentenced to adult or juvenile sanctions and concluded that Child was not amenable
6 to treatment. The court sentenced Child to a total of thirteen years’ incarceration in
7 an adult facility. Child appeals and, for the following reasons, we affirm Child’s
8 conviction and the sentence imposed against him.
9 BACKGROUND
10 The events leading up to Child’s conviction began early in the day on October
11 21, 2005. Carlos Escobar, the only person killed in the shootout, apparently owed a
12 debt to Anthony Jacquez, a friend of Child. Jacquez and Thomas Vigil, another friend
13 of Child, had apparently beaten up Escobar earlier in the day in an argument over the
14 debt. Eventually, Escobar and two friends, Jacob Young and Troy Martin, drove to
15 Vigil’s house in Escobar’s pickup. Shortly after this, Vigil pulled up in another
16 vehicle, got out, approached Escobar’s vehicle, and began shouting and throwing
17 rocks at Escobar’s truck. Vigil then punched Escobar in the face repeatedly, at which
18 point Escobar pulled out a gun and fired four shots, seriously wounding Vigil.
2 1 During the altercation between Vigil and Escobar, Child, according to a
2 statement he gave to the police, had been sitting on the porch of his friend’s house
3 across the street. When he saw Vigil fall to the ground after being shot, Child
4 “bust[ed] out his guns” and started “blasting” at Escobar’s truck as it reversed away
5 from Vigil’s house. Child stated that he had two guns in his pants and was shooting
6 both of them as he ran down the street toward the truck and Vigil. While Child
7 maintained that he was the only one shooting at the truck, witnesses at the scene
8 testified that there were as many as three other individuals with Child who may or
9 may not have been shooting. One witness positively identified Child in the group of
10 people and testified that Child was shooting at the truck.
11 As the gunfire subsided, the truck, which had been reversing out of Vigil’s
12 driveway, rolled into a nearby ditch. Escobar, the driver of the truck, was dead in the
13 driver’s seat, Young, the front passenger, had been hit twice and was severely
14 wounded with injuries to his liver and his right lung, while Martin, the backseat
15 passenger, escaped the vehicle, having only been grazed by a bullet.
16 Child was later arrested and charged with assault, battery, shooting at a motor
17 vehicle, and unlawful possession of a firearm. Following a jury trial, Child was
18 convicted of all the charges against him except battery. Child appeals.
3 1 DISCUSSION
2 Jury Instructions
3 Child first argues that the jury instructions on the charge of shooting at or from
4 a motor vehicle were incorrect and violated his due process rights because the
5 instructions named a victim not identified in the information and removed the question
6 of causation from the jury. The instruction given to the jury required the jury to find
7 that Child “willfully shot a firearm at a motor vehicle with reckless disregard for
8 another person” and that “[t]he shooting caused great bodily harm to . . . Young and/or
9 . . . Escobar.” However, the criminal information had not named Escobar; rather, it
10 named only Young and Martin as the victims.
11 Child contends that allowing the jury to consider the harm inflicted upon
12 Escobar violated his due process rights because Escobar was not named as a victim
13 in the information and thus, the trial court had implicitly found that there was no
14 probable cause that Child was involved in Escobar’s death. The State contends,
15 however, that Child not only failed to preserve this issue below, but that he also
16 invited the error he now alleges on appeal. We agree.
17 In order to preserve an issue for appeal, a defendant must make a timely
18 objection that specifically apprises the trial court of the nature of the claimed error and
19 invokes an intelligent ruling on it. State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M.
4 1 454, 993 P.2d 1280. On appeal, we will not consider issues not raised in the trial
2 court unless the issues involve matters of jurisdictional or fundamental error. In re
3 Aaron L., 2000-NMCA-024, ¶ 10, 128 N.M. 641, 996 P.2d 431. While we will
4 consider an unpreserved issue that involves fundamental error, “the doctrine of
5 fundamental error has no application in cases where the defendant, by his own actions,
6 invites error.” State v. Handa, 120 N.M. 38, 46, 897 P.2d 225, 233 (Ct. App. 1995).
7 At trial, defense counsel moved for a directed verdict on the charge of shooting
8 at or from a motor vehicle, arguing that there was no evidence that Child fired a bullet
9 that hit Young. In response, the State argued that there was evidence that Child was
10 the only shooter and that both Escobar and Young had suffered great bodily injury.
11 Defense counsel then argued that Child was “not charged with any count involving
12 . . . Escobar” and that the trial court had found at a preliminary hearing that there was
13 “no probable cause binding over for shooting at . . . Escobar.” The State pointed out
14 that the charge alleged only that Child had shot at a motor vehicle and had caused
15 great bodily harm.
16 The following morning, defense counsel appeared to have abandoned his
17 argument regarding Escobar’s absence from the information because he did not raise
18 the issue during the discussion about jury instructions. Defense counsel advised the
19 court that the only two issues remaining regarding the jury instructions involved the
5 1 wording of a self-defense instruction and the question whether Child could assert self-
2 defense in connection with the charge of possession of a firearm. After some
3 discussion regarding these two issues, the court went off the record to sort out the
4 order of the instructions in the instruction packet.
5 Back on the record, defense counsel indicated that he had duplicate instructions
6 in his packet for the charge of shooting at or from the motor vehicle. The State
7 advised that the two instructions were in fact slightly different because one listed the
8 victims as Young and/or Escobar and the other listed them as “occupant or
9 occupants.” Following this, the parties agreed to remove the “occupants” instruction
10 and leave the instruction naming Young and Escobar. After Child’s conviction, his
11 counsel filed a motion for a new trial but notably did not challenge the jury instruction
12 on shooting at a motor vehicle.
13 Because Child did not make any objection to the use of the jury instruction he
14 now challenges, we conclude that he failed to preserve the issue and that we are
15 therefore precluded from considering whether the trial court erred in giving the
16 instruction. See State v. Nguyen, 2008-NMCA-073, ¶ 22, 144 N.M. 197, 185 P.3d
17 368, cert. denied, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932. While Child
18 initially raised some concern regarding the proposed jury instruction during his
19 motion for a directed verdict, he did not raise the issue when the trial court was
6 1 actually considering the instructions, and he specifically advised the trial court that the
2 only issues he had with the instructions were limited to a self-defense instruction and
3 the possession of a firearm instruction. Thus, to the extent that Child apprised the trial
4 court of his objection to using Escobar’s name in the instruction on shooting at or
5 from a vehicle, he failed to invoke a ruling on whether using Escobar’s name was
6 appropriate because he failed to challenge the instruction. See Varela, 1999-NMSC-
7 045, ¶ 25 (requiring a defendant to apprise the trial court of the error and to invoke an
8 intelligent ruling on the error). Further, because Child specifically assented to the
9 instruction given, we conclude that he invited the alleged error such that we are also
10 precluded from considering whether any alleged error constitutes fundamental error.
11 See Handa, 120 N.M. at 46, 897 P.2d at 233.
12 Sufficiency of the Evidence
13 Child next contends that there was insufficient evidence for the jury to find him
14 guilty of shooting at a motor vehicle because the State failed to prove that a bullet he
15 fired made contact with either Young or Escobar. In reviewing a challenge to the
16 sufficiency of the evidence, we “must first determine whether substantial evidence of
17 either a direct or circumstantial nature exists to support a verdict of guilt beyond a
18 reasonable doubt with respect to every element essential to a conviction.” State v.
19 Trujillo, 2002-NMSC-005, ¶ 23, 131 N.M. 709, 42 P.3d 814 (internal quotation marks
7 1 and citation omitted). In doing so, we “must view the evidence in the light most
2 favorable to the state, resolving all conflicts therein and indulging all permissible
3 inferences therefrom in favor of the verdict.” Id. (internal quotation marks and
4 citation omitted). Our duty is not to “reweigh the evidence or substitute our judgment
5 for that of the jury” but “to determine whether any rational jury could have found each
6 element of the crime to be established beyond a reasonable doubt.” Id. ¶¶ 23, 28
7 (emphasis omitted) (internal quotation marks and citation omitted). Child argues only
8 that there is insufficient evidence to support the element of the offense that he caused
9 great bodily harm to Young and/or Escobar. We therefore limit our consideration to
10 this element of the offense.
11 As the sole support for his argument that there is insufficient evidence
12 supporting this element, Child cites State v. Hernandez, 117 N.M. 497, 873 P.2d 243
13 (1994), a case where our Supreme Court concluded that there was insufficient
14 evidence to support a defendant’s conviction for depraved mind murder. In
15 Hernandez, the defendant had fired a rifle at two people in his backyard and then
16 again fired at them while they ran down the street away from the defendant’s home.
17 Id. at 499, 873 P.2d at 245. A short time later, one of the people returned to the
18 defendant’s home and was shot in the chest during a struggle over the rifle. Id. In
19 reversing the defendant’s conviction, the Court noted that there was no evidentiary
8 1 link between the elements of depraved mind murder that the jury was required to find.
2 Id. While there was clear evidence that the defendant had acted in disregard for the
3 lives of others by firing his rifle at the two fleeing individuals, there was no evidence
4 that the depraved act was linked to the eventual shooting of the victim because the
5 victim was not shot in the course of the defendant’s depraved act. Id. Instead, the
6 victim’s shooting was a separate event that occurred after the depraved act when the
7 victim returned to the defendant’s home and struggled to obtain the rifle. Id.
8 Child contends that, as in Hernandez, there is no evidence linking his act of
9 shooting a gun at the vehicle containing Escobar and Young to the injury to Young
10 or the death of Escobar. Unlike in Hernandez, however, there is no gap in the
11 sequence of events that separates Child’s act of shooting at the vehicle from the
12 injuries inflicted upon Young. In fact, Young testified that he was not shot until the
13 second round of gunfire which, according to Child’s confession, Child was solely
14 responsible for. Thus, the jury was permitted to conclude that Child was responsible
15 for Young’s injuries since they occurred contemporaneously with Child’s act of
16 shooting at the vehicle. In addition, while there was some testimony that Vigil shot
17 Escobar, there was also testimony that Vigil did not fire a weapon, and that Escobar
18 was shot in the volley of gunfire which Child confessed to being responsible for.
19 Thus, there was evidence that supports a theory that Child was also responsible for the
9 1 death of Escobar. See Trujillo, 2002-NMSC-005, ¶¶ 25-29 (rejecting an argument
2 similar to Child’s because while there was evidence supporting two different factual
3 conclusions—that either the defendant was responsible for inflicting the fatal shot or
4 that his accomplice was responsible—it was exclusively the province of the jury to
5 resolve the conflict, and a rational jury could have found that the defendant was
6 responsible).
7 Because it is the exclusive province of the jury to resolve such a factual dispute,
8 we cannot reweigh the evidence and substitute our judgment for that of the jury. See
9 id. ¶ 28. We conclude that a rational jury could find beyond a reasonable doubt that
10 Child’s act of shooting at the truck caused Young’s injuries and/or Escobar’s death.
11 We therefore affirm Child’s conviction for shooting at a motor vehicle.
12 Child’s Statement to the Police
13 Child argues that the trial court erred in failing to suppress his videotaped
14 confession because he did not knowingly, voluntarily, and intelligently waive his
15 constitutional right against self-incrimination. Child points to three things that he
16 alleges prevented him from knowingly waiving his rights: intoxication, poor
17 cognitive functioning, and vague threats that Child was to be the scapegoat in the
18 shooting.
10 1 “The standard of review for suppression rulings is whether the law was
2 correctly applied to the facts, viewing them in a manner most favorable to the
3 prevailing party.” State v. Hand, 2008-NMSC-014, ¶ 6, 143 N.M. 530, 178 P.3d 165
4 (internal quotation marks and citation omitted). Because a suppression ruling involves
5 a mixed question of fact and law, we review the trial court’s purely factual
6 assessments to determine if they are supported by substantial evidence. Id. If the trial
7 court’s factual findings are supported by substantial evidence, we defer to those
8 findings, indulging in all reasonable inferences that can be drawn from them. Id.
9 While we defer to the trial court’s determination of the facts, “the legal question of
10 whether or not a valid waiver of Fifth Amendment rights has occurred is reviewed de
11 novo.” State v. Lasner, 2000-NMSC-038, ¶ 6, 129 N.M. 806, 14 P.3d 1282 (internal
12 quotation marks and citation omitted).
13 In reviewing Defendant’s argument that his statement should have been
14 suppressed, we “must evaluate the totality of the circumstances, including the mental
15 and physical condition, background, experience and conduct of the accused, as well
16 as the conduct of the police, in determining whether the State has successfully carried
17 its burden” of proving “by a preponderance of the evidence that the [d]efendant
18 knowingly, intelligently, and voluntarily waived his rights against self-incrimination.”
19 Id. The test for determining whether a juvenile validly waived his rights is identical
11 1 to that applicable to an adult, although the specific factors we should consider have
2 been codified in NMSA 1978, Section 32A-2-14(E) (2009) of the Children’s Code.
3 Lasner, 2008-NMSC-038, ¶¶ 6-7. However, these factors do not “establish a
4 heightened protection for statements by juveniles.” State v. Martinez, 1999-NMSC-
5 018, ¶ 18, 127 N.M. 207, 979 P.2d 718.
6 Child argues that he is entitled to a rebuttable presumption that his statement
7 was not knowingly, intelligently, or voluntarily given. We disagree. This
8 presumption applies only to juveniles who are thirteen or fourteen years old—not to
9 juveniles like Child who are over the age of fourteen. See id. (noting that Section
10 32A-2-14(F) makes all statements by juveniles under the age of thirteen inadmissible,
11 creates a rebuttable presumption of inadmissibility for juveniles aged thirteen or
12 fourteen, and provides a list of factors to be considered when evaluating statements
13 made by juveniles over fourteen years of age). We thus apply the statutory factors to
14 determine whether Child’s confession was knowingly and voluntarily given.
15 Child’s primary argument is that he was intoxicated at the time he gave his
16 confession. After a hearing on the matter, the trial court concluded that there was no
17 indication that Child was under the influence of alcohol such that he was either
18 incompetent to give a statement or unable to knowingly, intelligently, and voluntarily
12 1 waive his Fifth Amendment rights. We review the trial court’s conclusion for
2 substantial evidence.
3 Detective Ferrari, the officer who arrested Child and transported him from his
4 home to the police station and then later from the police station to the jail, testified
5 that Child was not slurring his speech, did not stumble when he walked, did not smell
6 of alcohol, and was attentive throughout the approximately thirty minutes that he
7 spent with Child on the night of the interview. Detective Ferrari also testified that he
8 had training and experience identifying intoxicated persons and that based on this
9 training and experience, Child did not appear to be intoxicated.
10 Detective Charles, the detective who conducted the interview with Child,
11 testified that Child did not slur his speech, did not stumble when he was walking,
12 appeared to be attentive, answered the questions willingly, and appeared to understand
13 what was happening to him. Detective Charles testified that he detected an odor of
14 alcohol on Child but that based on his training and experience, Child did not appear
15 to be intoxicated. Detective Charles also indicated that he did not have any concerns
16 that Child was intoxicated but that if he had had any concerns, he would not have
17 continued the interview.
18 Tracy Sutherland, the juvenile services director at the juvenile detention center,
19 testified that Child was asked whether he was under the influence of alcohol or drugs
13 1 and that Child answered that he was not under the influence. Officer Rick Clark, an
2 officer at the juvenile detention center where Child was held, testified that he was
3 working the night that Child was brought in and that while Child was uncooperative,
4 Child did not smell of alcohol, was not slurring his speech, was not stumbling when
5 he walked, and did not appear to be intoxicated. Based on this testimony, we
6 conclude that the trial court’s finding that Child was not intoxicated at the time he
7 gave his statement is supported by substantial evidence.
8 Aside from Child’s alleged intoxication, the only other factors that Child points
9 to in support of suppression are that he had poor cognitive functioning, that he was
10 only seventeen years old, and that there were vague threats made against him to be the
11 scapegoat. Child, however, does not direct us to anything in the record suggesting
12 that he had poor cognitive functioning that would prevent him from understanding his
13 rights or from being able to intelligently waive those rights. To the contrary, Child’s
14 mother testified at the suppression hearing that Child did “very good” in school—a
15 statement that contradicts Child’s unsupported assertion that he has impaired
16 cognition.
17 While Child contends that he was subjected to “vague threats, acknowledged
18 by Detective Charles, that [Child] was to be the scapegoat,” he does not argue that he
19 was threatened by Detective Charles in any way. During the interview, Detective
14 1 Charles reminded Child that at their last interview, he had told Child that he had
2 “heard through the grapevine that everybody was trying to put you up to be the
3 scapegoat” and that Child had said he was not present during the shooting. He then
4 asked why Child was now admitting to being the shooter. Aside from this reference
5 to what Detective Charles had “heard through the grapevine,” Child has offered no
6 evidence nor pointed to anything in the record supporting his assertion that he was
7 threatened into making a confession.
8 Thus, because Child has failed to show that he has poor cognitive functioning,
9 that he was threatened, or that he was intoxicated, we are left only with the question
10 of whether a seventeen-year-old is able to knowingly and voluntarily waive his Fifth
11 Amendment rights under the circumstances that existed at the time of Child’s
12 interview with the police.
13 Our Supreme Court considered a similar question in Martinez, 1999-NMSC-
14 018, ¶¶ 9-25. In concluding that the seventeen-year-old defendant had validly waived
15 his rights, the Court noted that the defendant was “old enough to comprehend
16 Miranda warnings and the consequences of waiving his rights,” appeared to be
17 “‘fairly intelligent’ and able to understand the questions asked during the interview
18 . . . [,] did not appear to be under the influence of alcohol or drugs[,] and . . . answered
19 questions in a coherent and rational manner.” Id. ¶ 22. The Court also noted that “the
15 1 interview was not particularly long, lasting only approximately one hour, and was
2 conducted at a time of day, between 9:00 and 10:00 p.m., when officers could expect
3 [the defendant] to be alert and cognizant of the significance of the interview.” Id.
4 Finally, the Court found it significant that when the defendant was read his Miranda
5 rights and told that he could stop the interview at any time, he acknowledged
6 understanding his rights and indicated that he had previously been advised of his
7 rights. Id. The Court concluded that, under the totality of the circumstances, the
8 defendant “fully understood the nature of his rights and the consequences of his
9 waiver” and therefore knowingly and intelligently waived his right against self-
10 incrimination. Id. ¶ 23.
11 Here, the facts surrounding Child’s confession are even more compelling than
12 those the Court found to constitute a valid waiver in Martinez. Like the defendant in
13 Martinez, Child was seventeen years old at the time of the interview and was
14 interviewed for less than one hour at approximately 9:00 p.m. Also like the defendant
15 in Martinez, Child was able to rationally and clearly answer questions posed to him
16 and, according to his mother, Child did well in school, an indication that he is a
17 normally intelligent individual. As in Martinez, Child was not only read his rights
18 prior to the interview, but also indicated that he remembered his rights from the last
19 interview and that he therefore did not need to hear them a second time. Thus, the
16 1 circumstances surrounding Child’s interview are nearly identical to the circumstances
2 surrounding the interview of the defendant in Martinez. Even more compelling,
3 however, is that in this case Child not only expressly waived his rights by signing a
4 written waiver, but, as the trial court found, “when it got to a point where the
5 interviewing was getting a little too focused and a little too close to where [Child] did
6 not want it to go,” Child “very ably and knowingly did invoke his right to silence and
7 his right to counsel.”
8 Because Child was a reasonably intelligent seventeen year old, was interviewed
9 for a reasonable length of time at a reasonable time of day, was made aware of and
10 expressly waived his Fifth Amendment rights, and because Child explicitly invoked
11 his rights toward the end of the interview, we affirm the trial court’s conclusion that
12 Child’s confession was knowingly, willingly, and voluntarily given and that the
13 videotaped statement was admissible at trial.
14 Amenability Hearing
15 Following Child’s conviction by jury, the trial court held an amenability
16 hearing pursuant to NMSA 1978, Section 32A-2-20(A) (2009) to determine whether
17 Child was amenable to treatment as a juvenile. Following the hearing, the court found
18 that Child was not amenable to treatment in a juvenile facility and that he was
19 therefore subject to adult sanctions. While Child did not object to the amenability
17 1 hearing or otherwise challenge the trial court’s determination below, he argues for the
2 first time on appeal that Section 32A-2-20(A) is unconstitutional. Specifically, Child
3 argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires a jury, not the trial
4 court, to make the determination that a defendant is or is not amenable to treatment
5 as a juvenile. While Child’s appeal was pending, we decided this very issue in State
6 v. Rudy B., 2009-NMCA-104, ¶ 53, 147 N.M. 45, 216 P.3d 810, cert. granted, 2009-
7 NMCERT-009, ___ N.M. ___, ___ P.3d ___ (No. 31,909, Sept. 15, 2009), and held
8 that Sections 32A-2-20(B) and (C) are facially unconstitutional and that Apprendi
9 requires that the amenability determination be made by a jury. We also held that our
10 ruling created a new rule and that it would “apply only to new cases and those that are
11 on direct review where the Apprendi issue has been preserved for appeal.” Id.
12 Our Supreme Court has previously explained that in order to properly preserve
13 a claim for a new rule to apply, the issue must be “raised and preserved below.”
14 Santillanes v. State, 115 N.M. 215, 225, 849 P.2d 358, 368 (1993). Our Supreme
15 Court has also indicated, however, that the retrospectivity of a new rule is irrelevant
16 if the trial court committed fundamental error. State v. Kirby, 1996-NMSC-069, ¶ 4,
17 122 N.M. 609, 930 P.2d 144 (concurring with an unpublished Court of Appeals
18 decision which held that “[s]ince the doctrine of fundamental error affords [the
19 d]efendant the right of appeal,” a new rule that was to be applied only prospectively
18 1 could “be made applicable to this case without applying its rule retrospectively”
2 (internal quotation marks and citation omitted)). Thus, while Child was required to
3 raise the Apprendi issue below in order to benefit from our holding in Rudy B., relief
4 could be available to Child if the trial court’s failure to have a jury determine whether
5 Child was amenable to treatment constituted fundamental error.
6 Despite recognizing that our review will be limited to fundamental error, Child
7 does not make any argument that the constitutional defect in our juvenile sentencing
8 system recognized in Rudy B. rises to the level of fundamental error. “Parties alleging
9 fundamental error must demonstrate the existence of circumstances that shock the
10 conscience or implicate a fundamental unfairness within the system that would
11 undermine judicial integrity if left unchecked.” State v. Cunningham, 2000-NMSC-
12 009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation
13 omitted). Because fundamental error is an exception to the general rule that error
14 must be preserved below, the exception is to be applied “very guardedly” and “only
15 under extraordinary circumstances to prevent the miscarriage of justice.” State v.
16 Silva, 2008-NMSC-051, ¶ 13, 144 N.M. 815, 192 P.3d 1192 (internal quotation marks
17 and citations omitted).
18 The mere fact that we have since found the statute Child challenges to be
19 unconstitutional does not automatically make the fact that the trial court sentenced
19 1 Child pursuant to that statute rise to the level of fundamental error. See State v.
2 Sanchez, 58 N.M. 77, 84, 265 P.2d 684, 688 (1954) (concluding that denial of a
3 defendant’s right to a fair and impartial jury does not automatically rise to the level
4 of fundamental error). Child fails to demonstrate how the alleged constitutional defect
5 rises to the level of fundamental error. We therefore need not address Child’s
6 argument that he was entitled to have a jury determine his amenability to treatment.
7 See State v. Clements, 2009-NMCA-085, ¶ 18, 146 N.M. 745, 215 P.3d 54 (declining
8 to address the defendant’s argument that a new rule should be applied to his case
9 because the issue was raised for the first time on appeal), cert. denied, 2009-
10 NMCERT-007 ___ N.M. ___, ___ P.3d ___ (No. 31,722, July 30, 2009).
11 Cruel and Unusual Punishment
12 Child contends that his being sentenced to incarceration in an adult penitentiary
13 constitutes cruel and unusual punishment, arguing that the trial court failed to take
14 Child’s life situation into account and that subjecting him to an adult sentence puts
15 Child into a dangerous situation. While Child acknowledges that he failed to preserve
16 this challenge below, he contends that “[a]n unconstitutional sentence is an illegal
17 sentence that may be challenged for the first time on appeal.”
18 Our Supreme Court recently decided that while a challenge to a sentence
19 involving a jurisdictional question may be raised for the first time on appeal, a
20 1 challenge to a sentence involving a constitutional question must be preserved below
2 before it can be raised on appeal. State v. Chavarria, 2009-NMSC-020 ¶ 14, 146
3 N.M. 251, 208 P.3d 896 (noting that “a sentence authorized by statute, but claimed to
4 be cruel and unusual punishment under the state and federal constitutions, does not
5 implicate the jurisdiction of the sentencing court and, therefore, may not be raised for
6 the first time on appeal”). Because Child failed to preserve the claim of cruel and
7 unusual punishment claim he raises on appeal, we do not address the merits of his
8 argument.
9 Ineffective Assistance of Counsel
10 Finally, Child argues that his trial counsel was ineffective. In support of this
11 argument, Child notes that: (1) his trial counsel did not object to (a) his being
12 convicted of shooting at a motor vehicle resulting in harm to an individual not named
13 in the information, (b) the prosecutor’s reference to Child as an “unrepentant
14 murderer,” (c) the testimony of Child’s mother; and that (2) trial counsel did not argue
15 that Child’s amenability to treatment should have been submitted to a jury. In
16 addition, Child contends that his trial counsel failed to introduce evidence during the
17 suppression hearing regarding Child’s cognitive impairment stemming from
18 discovering his father’s suicide and that trial counsel failed to request a jury
21 1 instruction to the effect that it was the jury’s duty to determine whether Child’s
2 confession was voluntary.1
3 We undertake de novo review of claims of ineffective assistance of counsel and
4 apply a two-prong test that “places the burden on the defendant to show that his
5 counsel’s performance was deficient and that the deficient performance prejudiced his
6 defense.” State v. Dylan J., 2009-NMCA-027, ¶¶ 33, 35-37, 145 N.M. 719, 204 P.3d
7 44. While Child points to a number of perceived errors that allegedly demonstrate the
8 deficiency of his trial counsel, Child does not argue that any of these perceived errors
9 prejudiced his defense. The closest Child comes to arguing prejudice is his assertion
10 that the jury was prevented from considering whether his confession was voluntary.
11 The alleged threats that Child contends made his confession involuntary, however,
12 were external threats from his accomplices, not the types of official threats that would
13 make his confession involuntary. See State v. Munoz, 1998-NMSC-048, ¶ 21, 126
14 N.M. 535, 972 P.2d 847 (noting that voluntariness means “freedom from official
15 coercion” and that for a confession to be involuntary, there must be an essential link
16 between coercive activity of the state and the confession of the defendant (internal
1 16 In his reply brief, Child urges us also to consider his trial counsel’s failure to 17 preserve the challenge he raises regarding the jury instructions as part of his 18 ineffective assistance of counsel claim. However, we do not review arguments made 19 for the first time in a reply brief and therefore do not consider this alleged error. See 20 Mitchell-Carr v. McLendon, 1999-NMSC-025, ¶ 29, 127 N.M. 282, 980 P.2d 65.
22 1 quotation marks and citation omitted)). Because Child has failed to demonstrate a
2 prima facie case for ineffective assistance of counsel, we do not address the merits of
3 Child’s claim.
4 As Child acknowledges, a habeas proceeding is the preferred method to address
5 a claim of ineffective assistance of counsel when the record on appeal does not
6 establish a prima facie case. See State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M.
7 476, 927 P.2d 31. Our conclusion that Child has failed to meet his burden of
8 demonstrating a prima facie case of ineffective assistance of counsel in no way
9 impairs Child’s ability to later bring such a claim in a habeas proceeding if there
10 appears to be a factual basis. See State v. Saiz, 2008-NMSC-048, ¶ 65, 144 N.M. 663,
11 191 P.3d 521 (noting that a defendant “may pursue habeas corpus proceedings on [the
12 ineffective assistance of counsel] issue . . . if he is ever able to provide evidence to
13 support his claims”), abrogated on other grounds by State v. Belanger,
14 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.
23 1 CONCLUSION
2 For the foregoing reasons, we affirm Child’s convictions and the sentence
3 imposed by the trial court.
4 I T IS SO ORDERED.
5 6 CYNTHIA A. FRY, Chief Judge
7 WE CONCUR:
8 9 MICHAEL E. VIGIL, Judge
10 11 ROBERT E. ROBLES, Judge