State v. McCalep

• Court: New Mexico Court of Appeals
• Decided: September 24, 2024
• Status: Unpublished

Opinion

The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

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

2 Opinion Number: __________________

3 Filing Date: September 24, 2024

4 No. A-1-CA-40870

5 STATE OF NEW MEXICO,

6 Plaintiff-Appellee,

7 v.

8 COURTNEY MCCALEP a/k/a 9 COURTNEY LEON MCCALEP,

10 Defendant-Appellant.

11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Joseph A. Montano, District Court Judge

13 Raúl Torrez, Attorney General 14 Teresa Ryan, Assistant Attorney General 15 Santa Fe, NM

16 for Appellee

17 Bennett J. Baur, Chief Public Defender 18 Melanie C. McNett, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant 1 OPINION

2 HANISEE, Judge.

3 {1} The memorandum opinion filed June 10, 2024, is hereby withdrawn, and this

4 opinion is substituted in its place. Defendant Courtney McCalep appeals his

5 conviction of aggravated battery without great bodily harm, contrary to NMSA

6 1978, Section 30-3-5(A), (B) (1969). On appeal, Defendant argues the district court

7 abused its discretion in denying two untimely motions he filed to suppress evidence

8 of the victim’s prior, out-of-court identification of Defendant as well as the victim’s

9 forthcoming in-court identification of him. Defendant argues that police procedures

10 used to obtain the victim’s out-of-court identification at the scene of the arrest were

11 unduly suggestive of Defendant’s guilt in violation of his due process rights under

12 Article II, Section 18 of the New Mexico Constitution and the per se prohibition of

13 such impermissibly obtained identifications announced in State v. Martinez, 2021-

14 NMSC-002, ¶¶ 72, 79, 86, 478 P.3d 880. Defendant further asserts that, under the

15 rule announced in Martinez, the victim’s subsequent in-court identification of him

16 was unduly tainted by the suggestive, out-of-court identification and should have

17 been suppressed as well. See id. ¶ 86. Defendant lastly argues that, alternatively, if

18 the district court did not abuse its discretion in denying Defendant’s untimely

19 motions, Defendant received ineffective assistance of counsel for his attorney’s 1 failure to file the suppression motion earlier in the case. For the reasons set forth

2 below, we affirm.

3 DISCUSSION

4 Defendant’s Motion to Suppress

5 {2} The aggravated battery of which Defendant was convicted occurred on June

6 8, 2020. Defendant’s first attorney entered his appearance in the case on August 11,

7 2020, and the district court ordered all pretrial motions to be filed by November 27,

8 2020. As of that date, Defendant had not filed any evidentiary motions. On January

9 25, 2021, the district court entered an order continuing Defendant’s trial until

10 sometime after February 1, 2021, due to the COVID-19 pandemic. Almost fourteen

11 months later, on March 16, 2022, and still without any evidentiary motions filed by

12 Defendant, the parties stipulated that they were ready for trial. Thereafter, on May

13 19, 2022, the district court approved substitution of defense counsel in the case, and

14 Defendant’s second attorney then took over Defendant’s representation.

15 {3} Defendant submitted his first evidentiary motions in the case, entitled

16 “Defendant’s Motions In Limine,” on July 16, 2022, ten days prior to trial, and

17 included, in part, a request that the district court suppress the victim’s anticipated in-

18 court identification of Defendant. Defendant’s motion regarding the forthcoming

19 identification, in total, was limited to the following statement:

20 10. Exclusion of [i]n-[c]ourt [i]dentification—an order precluding and 21 excluding any in-court identification of . . . Defendant by [the victim]

2 1 as prior identification were [sic] done improperly and have 2 subsequently tainted in[-]court identifications. See State v. Martinez, 3 2021-NMSC-002.

4 At a pretrial hearing two days later, the district court invited the parties to submit

5 supplemental briefing on Defendant’s motion to suppress “particularly pursuant to

6 Antonio M.,” which the district court explained is a “juvenile case, but it really looks

7 at Martinez and whether or not it is actually applicable to in-court identifications.”

8 See State v. Antonio M. (Antonio M. I), 2022-NMCA-041, 516 P.3d 193, rev’d on

9 other grounds by State v. Antonio M. (Antonio M. II), 2023-NMSC-022, 536 P.3d

10 487; 1 see also Martinez, 2021-NMSC-002, ¶¶ 72-80 (adopting per se exclusion of

11 in-court identifications of criminal defendants by witnesses who participated in

12 unduly suggestive out-of-court identifications). The district court further explained

13 that the parties’ briefing may “involv[e] Martinez as well.” See Martinez, 2021-

14 NMSC-002, ¶¶ 72-80.

15 {4} The State submitted its supplemental brief on July 22, 2022, the day before a

16 follow-up hearing on the matter, but Defendant submitted his supplemental briefing

1 During the pendency of this appeal, our Supreme Court reversed part of this Court’s opinion in Antonio M. I as it relates to in-court identification testimony from “collateral witnesses,” or persons who can identify a defendant from circumstances separate from the alleged crime itself. See Antonio M. II, 2023-NMSC-022, ¶¶ 8, 29, 34. Because the district court’s reference to Antonio M. I in this case relates only to portions of that opinion not reversed by Antonio M. II, and because the district court’s discussion of Antonio M. I does not affect our holding today, we do not further discuss Antonio M. II in this opinion.

3 1 only on July 25, 2022, the day before trial and after the district court held the follow-

2 up hearing. As in his original motion, Defendant’s brief contained no factual

3 allegations pertaining to the instant case from which the district court could

4 determine the applicability of Martinez or Antonio M. I. Instead, Defendant’s brief

5 merely expressed his view that the per se exclusion of in-court witness

6 identifications following out-of-court witness identifications obtained through

7 unnecessarily suggestive means applied herein. See Martinez, 2021-NMSC-002,

8 ¶¶ 76, 79. Without asserting any facts explaining how the victim’s identification of

9 Defendant in this case was improperly obtained from the outset, Defendant

10 concluded his brief by asking the district court to exclude “an in-court identification

11 of [Defendant] . . . and any other relief the [c]ourt finds just and proper under the

12 circumstances.”

13 {5} The district court denied Defendant’s motion to suppress the victim’s

14 anticipated in-court identification of Defendant, finding that Defendant failed to

15 “explain how the [out-of-court] identification was done impermissibly or [was]

16 unnecessarily suggestive” and that “[t]he [c]ourt cannot determine whether the out-

17 of-court identification was done impermissibly without being able to apply the law

18 to the facts.” Indeed, under Martinez, the “question of whether the identification is

19 unnecessarily suggestive focuses not only on the identification procedure itself but

20 also on whether the police have a good reason to use a suggestive identification

4 1 procedure in the first instance.” 2021-NMSC-002, ¶ 79 (emphasis omitted). In other

2 words, Defendant’s motion failed to supply facts by which such a determination

3 could have been made.

4 {6} Thereafter, on July 26, 2022, and following the start of trial, Defendant filed

5 a renewed motion to suppress the victim’s out-of-court identification, as well as the

6 victim’s anticipated in-court identification testimony. In his renewed motion—filed

7 minutes after the district court called the case to begin jury selection—Defendant

8 finally included factual allegations bearing upon his belief that the victim’s out-of-

9 court identification was obtained through unduly suggestive means. Nonetheless, the

10 district court denied the motion in a hearing held after the jury had been empaneled

11 and sworn, finding that it was then untimely under City of Santa Fe v. Marquez,

12 2012-NMSC-031, ¶ 25, 285 P.3d 637 (stating that “our rules require suppression

13 motions to be filed prior to trial, absent good cause”). See Rule 5-212(C) NMRA.

14 {7} The district court explained that Defendant bore the burden of proving the

15 victim’s out-of-court identification of him was unconstitutionally obtained and that

16 without litigating such an issue before trial in a substantive hearing, the State would

17 wrongly forfeit its right to appeal an order suppressing such an identification were

18 the jury to acquit Defendant of the charges. See Martinez, 2021-NMSC-002, ¶ 88

19 (stating “the initial burden is on the defendant to show some indication of

20 suggestiveness in law enforcement’s administration of the eyewitness identification

5 1 procedure”); see also Marquez, 2012-NMSC-031, ¶ 15 (explaining that, where a trial

2 court makes an evidentiary ruling after jeopardy attaches, “the [s]tate is barred from

3 appealing when a defendant is acquitted by the trial court no matter how egregiously

4 erroneous the trial court’s ruling” (internal quotation marks and citation omitted)).

5 Stated succinctly, the district court found that Defendant failed to establish a prima

6 facie showing that the identification was unconstitutional, as required by Martinez,

7 2021-NMSC-002, ¶ 88, and that Defendant’s renewed motion was untimely under

8 Marquez, 2012-NMSC-031, ¶ 26.

9 {8} Defendant argues that the district court’s denial of both his original and

10 renewed motions to suppress is reviewed for abuse of discretion, and that under such

11 standard, the district court’s denial of his motions constituted an abuse of discretion

12 warranting reversal. Considering each motion in turn, we disagree with Defendant’s

13 arguments and conclude that the district court properly ruled on the motions before

14 it. We explain.

15 {9} Defendant asserts that the district court abused its discretion in denying his

16 original motion to suppress “because the court was singularly focused on the wrong

17 case law.” Defendant avers that, after he filed his first motion on the identification

18 issue, the district court became focused on Antonio M. I, 2022-NMCA-041, which

19 Defendant asserts is inapposite to the instant case. Defendant continues that the

20 district court’s erroneous focus on Antonio M. I “precluded him from making factual

6 1 arguments in support of suppress[ing]” the victim’s identification of him. The record

2 does not support Defendant’s argument. Rather, the record reveals that Defendant

3 presented no facts supporting his assertion that the victim’s out-of-court

4 identification of Defendant should be suppressed, and the district court never made

5 any indication, implicit or otherwise, that Defendant was precluded from doing so.

6 On the contrary, as the district court stated in its order, Defendant failed to provide

7 any “information on the out-of-court identification process and whether it was done

8 improperly.”

9 {10} Even if we indulge Defendant’s argument that the district court’s request for

10 supplemental briefing on Defendant’s suppression motion “particularly pursuant to

11 Antonio M. [I]” was an implicit restriction on Defendant’s permissible arguments—

12 a notion we reject—Defendant does not explain how his original motion satisfied

13 the requirements of either the district court’s prior scheduling order or the rule laid

14 out in Martinez requiring that Defendant first establish a prima facie showing that

15 “some aspect of the identification procedure . . . was suggestive in nature.” See 2021-

16 NMSC-002, ¶ 80. Not only did Defendant wait until ten days prior to trial to raise

17 the in-court identification issue—a violation of the district court’s scheduling

18 order—he did not provide the district court with any factual basis upon which the

19 district court could grant him the relief he sought until after the court called the case

20 for jury selection, even when he was provided an opportunity to submit supplemental

7 1 briefing on the issue despite the passage of prior motion deadlines in the case. We

2 therefore discern no error by the district court in its determination that Defendant

3 failed to make a prima facie showing that the victim’s out-of-court identification was

4 unlawful and properly denied his motion to suppress the victim’s forthcoming in-

5 court identification. See id. ¶¶ 80, 88.

6 {11} We similarly discern no error in the district court’s denial of Defendant’s

7 renewed suppression motion as untimely. As we have stated, Marquez presents a

8 bright-line rule regarding the timely submission of suppression motions that serves

9 to protect the state’s right to appeal once a defendant has been put in jeopardy. See

10 2012-NMSC-031, ¶ 26 (“[T]o avoid having the prosecution’s appeal rights

11 inadvertently extinguished by double jeopardy protections, we . . . hold that trial

12 courts must adjudicate any suppression issues prior to trial, absent good cause for

13 delaying such rulings until trial.”); see also Rule 5-212(C) (“A motion to suppress

14 shall be filed no less than sixty (60) days prior to trial, unless, upon good cause

15 shown, the trial court waives the time requirement.”). While Defendant argues that

16 good cause did exist in this case—due to delay caused by “the COVID-19 pandemic,

17 substitution of trial counsel shortly before trial, and an over-burdened public

18 defender office”—we are unpersuaded.

19 {12} To begin, the COVID-19 pandemic resulted only in a delay of Defendant’s

20 trial, not the filing of motions in relation thereto. Nothing prevented Defendant from

8 1 filing motions or otherwise advancing his case while trial in the matter was

2 continued. Indeed, Defendant did file his own motion during that time urging the

3 district court to review his conditions of release. Moreover, late substitution of

4 defense counsel assigned to this case has no bearing on Defendant’s ability to timely

5 file motions or comply with the Rules of Criminal Procedure. See LR2-308(F)(7)

6 NMRA (2020) (“Substitution of counsel alone ordinarily shall not constitute good

7 cause for an extension of time.”). 2 While Defendant’s second attorney certainly may

8 not have known about the alleged impropriety of the victim’s out-of-court

9 identification until the attorney’s entry in the case, Defendant does not explain to us

10 how that prevented his first attorney from properly raising the issue with the district

11 court.

12 {13} Defendant asserts that the “district court did not reach the merits of the

13 identification issue until the day[ ]of trial due to its own misapprehension of the

14 applicable case law.” The record does not support such an argument. As stated,

15 Defendant did not present any facts supporting his argument until after jury selection

16 began, and as a result, the district court’s first opportunity to hear factual argument

17 on the matter was after jeopardy had attached. See State v. Roybal, 2006-NMCA-

18 043, ¶ 22, 139 N.M. 341, 132 P.3d 598 (“Jeopardy attaches in a jury trial when the

LR2-308(F)(7) (2020) was amended on August 29, 2022, and the good cause 2

language was removed. However, this version of the rule was still in effect at the time of these proceedings.

9 1 jury is empaneled and sworn.” (text only) (citation omitted)). Thus, the district court

2 correctly considered the procedure explained in Marquez, 2012-NMSC-031, ¶ 26,

3 and properly denied Defendant’s untimely renewed motion to suppress.

4 Ineffective Assistance of Counsel

5 {14} Defendant next argues that he received ineffective assistance of counsel for

6 his attorneys’ failure to properly raise the identification issue in a pretrial

7 suppression motion. Because Defendant fails to show he was prejudiced by any

8 asserted error by counsel, we reject his argument.

9 {15} A claim of ineffective assistance of counsel is reviewed de novo. State v.

10 Martinez, 2007-NMCA-160, ¶ 19, 143 N.M. 96, 173 P.3d 18. When evaluating such

11 claims on direct appeal, we evaluate facts that are part of the record, and “require [a

12 d]efendant to show, first, that his counsel’s performance was deficient and, second,

13 that this deficiency prejudiced his defense.” State v. Roybal, 2002-NMSC-027, ¶ 19,

14 132 N.M. 657, 54 P.3d 61. “If facts necessary to a full determination are not part of

15 the record, an ineffective assistance claim is more properly brought through a habeas

16 corpus petition, although an appellate court may remand a case for an evidentiary

17 hearing if the defendant makes a prima facie case of ineffective assistance.” Id. “To

18 show prejudice, we look to the record to determine whether there is a reasonable

19 probability that, but for counsel’s unprofessional errors, the result of the proceeding

10 1 would have been different.” Garcia v. State, 2010-NMSC-023, ¶ 41, 148 N.M. 414,

2 237 P.3d 716 (internal quotation marks and citation omitted).

3 {16} Here, even if we assume that effective counsel would have properly moved to

4 suppress the out-of-court identification of Defendant, Defendant has failed to show

5 on this direct appeal that he was prejudiced by defense counsel’s failure to do so.

6 See State v. Padilla, 1996-NMCA-072, ¶¶ 16-22, 122 N.M. 92, 920 P.2d 1046

7 (stating, about a factual circumstance nearly identical to that in the instant case, that

8 the defendant failed to show prejudice because incriminating evidence outside of the

9 identification assured the outcome of the case). At trial, evidence was introduced

10 that Defendant attacked the victim with a crowbar after the victim backed into

11 Defendant’s car in a parking lot. Officers arrived at the scene within approximately

12 ten minutes of the attack, and the arresting officer testified that he later saw a person

13 who generally matched the description of Defendant provided by the victim and who

14 appeared to be exiting a business near where both the victim’s vehicle and

15 Defendant’s vehicle still remained. When officers approached Defendant at the

16 scene, Defendant told them that he owned the car and that the victim had backed into

17 him and Defendant was then placed under arrest.

18 {17} Even were we to assume that the ensuing show up identification at issue

19 here—which occurred in the same parking lot about an hour after the assault and

20 within minutes of Defendant’s arrest—was suggestive in nature, the other

11 1 incriminating evidence admitted against Defendant at trial sufficiently establishes

2 no reasonable probability that the outcome of the proceeding would have been

3 different had the victim’s identification been suppressed. In addition to the victim’s

4 testimony in this regard, other evidence offered at trial included: one officer’s

5 testimony that Defendant’s appearance at the scene generally matched the

6 description of the suspect they were looking for and that Defendant was found in the

7 immediate vicinity of the incident; two officer’s statements that Defendant admitted

8 the car hit by the victim was his; and two officers’ in-court identification of

9 Defendant based on their observance of him at the scene of arrest. Thus, the victim’s

10 out-of-court and in-court identifications of Defendant were effectively cumulative

11 of the evidence already presented against him, and suppression of it would not have

12 changed the outcome of the trial to a reasonable probability. See id.

13 {18} We therefore conclude that Defendant did not make a prima facie showing of

14 prejudice resulting from his counsel’s error, if any, and reject on direct appeal his

15 argument that he received ineffective assistance of counsel. Nothing about our

16 determination today should be construed to limit Defendant’s ability to bring an

17 ineffective assistance of counsel claim by way of a habeas corpus petition or in a

18 proceeding better suited to develop facts related to the challenged identifications and

19 the trial record as a whole.

12 1 CONCLUSION

2 {19} For the reasons set forth above, we affirm.

3 {20} IT IS SO ORDERED.

4 _________________________ 5 J. MILES HANISEE, Judge

6 WE CONCUR:

7 ________________________________ 8 JACQUELINE R. MEDINA, Judge

9 ________________________________ 10 KATHERINE A. WRAY, Judge