State v. McDaniel

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. 31,501 5 CARLEOUS McDANIEL, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Neil Candelaria, District Judge

9 Hector H. Balderas, Attorney General 10 Nicole Beder, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Jorge A. Alavarado, Chief Public Defender 14 Nicole S. Murray, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant

17 MEMORANDUM OPINION 18 VIGIL, Chief Judge.

1 {1} Defendant Carleous McDaniel appeals his convictions for attempted first 2 degree murder and four counts of aggravated battery. We affirm in part, reverse in 3 part, and remand. 4 {2} On the afternoon of December 31, 2008, (New Year’s Eve) Defendant called 5 his ex-wife Kimberly Davison to ask if he could go to her home to visit their children. 6 She agreed. That same day, Davison, her boyfriend Anthony Hicks, and Terrence 7 Turner decided to have a small New Year’s Eve party at Davison’s home. 8 {3} Alicia Coleman, Adrian Lewis, Nakisha Alexander, Katrina Bustos, Turner, 9 Hicks, Davison, and several children attended the party. Everyone at the party was 10 drinking alcohol except Davison. Coleman and Hicks had been drinking since early 11 in the afternoon. The party guests described Hicks as “sloppy drunk.” At one point 12 Hicks knocked the Christmas tree down while dancing. 13 {4} When Defendant initially arrived, Coleman went to his car and spoke with him. 14 She told Defendant that they did not want any problems. Defendant responded that he 15 did not go there to cause any problems, he only wanted to see his kids. When 16 Defendant entered Davison’s home he greeted his children. Defendant held Josiah, 17 eighteen months, and Tamar, five years old, sat on his lap. His attention was toward 18 the children.

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1 {5} At one point, Defendant left the party with Turner and Lewis to buy a cigar. 2 While in the car, Lewis spotted a gun in Defendant’s pocket. When they returned the 3 three men were talking and laughing. They then went outside to smoke marijuana. 4 {6} Later Defendant was sitting on the couch holding Tamar and Josiah. Davison 5 tried to talk to him about the children. At some point Hicks fell into Defendant while 6 he was holding Josiah. Defendant said to Hicks, “Look, please be careful,” and 7 “You’re wasted.” 8 {7} Defendant and Lewis were talking and then they began to “tussle.” Defendant 9 claims that Lewis was threatening him with a broken bottle, but no witnesses testified 10 to Lewis holding anything in his hands. Defendant then fired a shot at Lewis. The shot 11 hit Lewis in the face knocking him to the ground. Lewis then stood up and ran out the 12 door. Lewis testified to Defendant firing multiple shots in the house. However, 13 Defendant testified to firing only one shot, Alexander testified to Defendant firing 14 shots at Lewis outside, and no other witnesses testified to hearing gun shots. Lewis 15 and Alexander also testified that Defendant chased Lewis outside and then returned 16 to the house. 17 {8} Then Defendant and Hicks began arguing in the hallway. Defendant testified 18 that Hicks pulled out a pistol. Davison heard Hicks say, “I’m not tripping on you. 19 Those are your kids.” Coleman was standing between the two men. She bent down

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1 to pick up her child, and Defendant fired a shot at Hicks’s head. Defendant ran out the 2 door and left the scene. 3 {9} Davison and her guests called 911. Police officers and an ambulance arrived. 4 {10} Defendant was arrested on January 12, 2009, and indicted by a grand jury on 5 January 27, 2009. The public defender assigned three attorneys to Defendant’s case 6 over the twenty-seven month period he awaited trial. Defendant stood trial on April 7 12, 2011. A jury convicted defendant of attempted first degree murder, aggravated 8 battery causing great bodily harm, and aggravated battery with a deadly weapon 9 towards Hicks; and aggravated battery causing great bodily harm and aggravated 10 battery with a deadly weapon towards Lewis. Defendant brings five arguments on 11 appeal: (1) a delay of twenty-seven months from arrest until trial violated his 12 constitutional right to a speedy trial; (2) the multiple convictions violate the 13 prohibition against double jeopardy; (3) the evidence was insufficient to support a 14 finding beyond a reasonable doubt; (4) he was denied effective assistance of counsel; 15 and (5) he was denied his right to testify before the grand jury. We address each issue. 16 I. Right to a Speedy Trial 17 {11} Defendant appeals his convictions arguing that a delay of twenty-seven months 18 from arrest until trial violated his constitutional right to a speedy trial.

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1 {12} “Violation of the speedy trial right is only determined through a review of the 2 circumstances of a case[.]” State v. Garza, 2009-NMSC-038, ¶ 13, 146 N.M. 499, 212 3 P.3d 387. We apply the four-factor Barker balancing test to determine if there was a 4 violation of Defendant’s right. Id. 5 A. The Length of Delay 6 {13} Under the first prong of the Barker analysis, we determine whether the length 7 of the delay to bring the defendant’s case to trial is “presumptively prejudicial.” Id. 8 ¶ 15. “The length of delay serves two purposes under the speedy trial analysis.” State 9 v. Spearman, 2012-NMSC-023, ¶ 20, 283 P.3d 272. First, it triggers the analysis of 10 the speedy trial factors and, second, it is also a speedy trial factor to be weighed in the 11 overall balance. Id. “[T]he greater the delay the more heavily it will potentially weigh 12 against the State.” Garza, 2009-NMSC-038, ¶ 24. “[T]he burden of persuasion rests 13 with the State to demonstrate that, on balance, the defendant’s speedy trial right was 14 not violated.” Id. ¶ 16. 15 {14} In Garza, our Supreme Court adopted benchmarks for determining presumptive 16 prejudice: for a simple case, twelve months of delay becomes presumptively 17 prejudicial; for an intermediate case, fifteen months is presumptively prejudicial; and 18 for a complex case, eighteen months is presumptively prejudicial. Id. ¶ 48. In 19 distinguishing between the level of complexity for each case, we have stated that

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1 “simple cases require less investigation and tend to involve primarily police officer 2 testimony during the trial.” State v. Laney, 2003-NMCA-144, ¶ 14, 134 N.M. 648, 81 3 P.3d 591 (internal quotation marks and citation omitted). Cases of intermediate 4 complexity “involve numerous or relatively difficult criminal charges and evidentiary 5 issues, numerous witnesses, expert testimony, and scientific evidence.” Id. 6 {15} Defendant argues that this is a simple case because the trial lasted just over 7 three days, there were six civilian witnesses including Defendant, and law 8 enforcement officers that were called as witnesses. Defendant argues that although 9 there was some conflicting testimony, all the witnesses described a discrete series of 10 events that occurred over the course of the single evening. Defendant also points out 11 that there were no expert witnesses and no significant pretrial motions except for 12 motions in limine. 13 {16} In contrast, the State argues that this case is complex or intermediate-complex. 14 The State argues that with voir dire and jury deliberations the trial was five days. The 15 State asserts that the seriousness of the victims’ injuries and their recovery required 16 additional time to schedule and coordinate interviews. Hicks suffered brain damage 17 making it difficult for him to understand and communicate clearly, and Lewis was 18 arrested and indicted on separate charges which delayed his witness interview.

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1 {17} In Laney, we determined that case fell “in the high end of the simple complexity 2 range.” 2003-NMCA-144, ¶ 15. In Laney, the defendant was charged with vehicular 3 homicide, great bodily injury by vehicle, leaving the scene of an accident, receiving 4 or transferring a stolen vehicle, and reckless driving. Id. ¶ 2. Both sides provided 5 expert testimony including a forensic pathologist and accident reconstructionist, and 6 the use of DNA evidence was contemplated. Id. ¶¶ 5, 12. We held that although many 7 facts were stipulated, the ultimate question of who was driving was contested and 8 required ten witnesses, including an accident reconstruction expert and two experts 9 in forensic pathology. Id. ¶ 15. 10 {18} We view the present case as less complex than Laney and determine that it is 11 a simple case. Here, only eyewitnesses, law enforcement officers, emergency room 12 doctors, and Defendant testified. Expert witness testimony was not required. The 13 sequence of events on the night in question were generally corroborated among all the 14 witnesses and there was no dispute as to who committed the illegal acts since 15 Defendant testified that he shot Hicks and Lewis. 16 {19} The case was not tried until twenty-seven months after Defendant was indicted. 17 As a simple case, twenty-seven months exceeded the twelve-month benchmark by 18 fifteen months. Because “the greater the delay the more heavily it will potentially

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1 weigh against the State[,]” Garza, 2009-NMSC-038, ¶ 24, we weigh the length of the 2 delay against the State. 3 B. The Reasons for the Delay 4 {20} “Closely related to [the] length of delay is the reason the government assigns 5 to justify the delay.” Id. ¶ 25 (internal quotation marks and citation omitted). 6 Defendant argues that the State’s requests for continuances to conduct plea 7 negotiations, rescheduling witness interviews, and a heavy caseload resulting in 8 conflicting trial scheduling should weigh against the State. However, he also argues 9 that the State’s continuances allowing Defendant’s new attorney time to prepare 10 should not weigh against the State. 11 {21} The reasons for the delay may “heighten or temper the prejudice to the 12 defendant caused by the length of the delay.” State v. Maddox, 2008-NMSC-062, ¶ 13 13, 145 N.M. 242, 195 P.3d 1254, abrogated on other grounds by Garza, 2009- 14 NMSC-038, ¶¶ 47-48. This factor looks at the “reason the government assigns to 15 justify the delay.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and 16 citation omitted). Barker v. Wingo described three types of delays: (1) “[a] deliberate 17 attempt to delay the trial in order to hamper the defense[, which is] weighted heavily 18 against the government[;]” (2) “negligence or overcrowded courts . . . [, which are] 19 weighted less heavily but nonetheless should be considered since the ultimate

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1 responsibility for such circumstances must rest with the government rather than with 2 the defendant;” and (3) “a valid reason, such as a missing witness, should serve to 3 justify appropriate delay.” 407 U.S. 514, 531 (1972); Garza, 2009-NMSC-038, ¶¶ 25- 4 27. 5 {22} The State argues that for the first eighteen months after the indictment, the 6 parties proceeded in a customary manner. The State contends that it was ready for trial 7 on July 26, 2010. 8 {23} We discuss the delays for plea negotiations, scheduling witnesses, 9 administrative caseload, and allowing the new defense attorney time to prepare. 10 1. Plea Negotiations 11 {24} Defendant argues the State’s first two requests for continuance were to allow 12 time for plea negotiations, which is not a valid reason for delaying trial. He points us 13 to Maddox where the Supreme Court said, “plea negotiations are not an excuse for a 14 delay in the prosecution of a case.” 2008-NMSC-062, ¶ 25. On the other hand, the 15 State argues that plea negotiations are a part of judicial efficiency and aimed at 16 conserving the court’s resources. The State argues that it cannot have the obligation 17 to prepare for trial while Defendant is considering a plea offer. 18 {25} “[A]bsent some act of bad faith or some prejudice to the defendant, plea 19 negotiations are themselves not a factor to be held against either party.” Id. ¶ 24

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1 (internal quotation marks and citation omitted). However, plea negotiations are also 2 “not an excuse for a delay in the prosecution of a case” and “do not constitute a valid 3 reason for suspending the defendant’s right to a speedy trial.” Id. ¶ 25. In Maddox, the 4 state made a plea offer, and nearly three months later, defense counsel responded. Id. 5 ¶ 26. While the burden of bringing a case to trial is on the State, the defendant is also 6 required to timely respond to plea offers. Id. The Court held that three months was too 7 long of a delay and weighed it slightly against the State. Id. 8 {26} Here, the State’s July 13, 2009 motion for continuance stated that the State 9 “will be making a plea offer within the next week [and if] the offer is rejected 10 additional time will be necessary to schedule and prepare for trial.” At that point, the 11 trial was scheduled for August 31, 2009, and the State requested the trial be 12 rescheduled for November 2009. Defendant’s attorney at the time, stipulated to the 13 motion. The State’s next motion for continuance was on October 16, 2009. The State 14 recited that it had made a plea offer on October 13, 2009, and Defendant’s attorney 15 requested four weeks to discuss the offer with Defendant. Defense counsel “[did] not 16 object” to the motion. 17 {27} The requests demonstrate the State and defense counsel working together to 18 reach a resolution. Defendant’s request for time counterbalances the State’s extensions 19 for plea negotiations. We view this as a valid reason justifying delay. Plea

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1 negotiations are a normal part of a criminal prosecution. We weigh the delays in 2 negotiating the plea offer neutrally. 3 2. Witnesses 4 {28} Defendant argues that the State’s third and fourth requests for continuance were 5 for mistakes made in scheduling witness interviews, which should be classified as 6 negligence and weighed against the State. The State responds that confusion in 7 scheduling witness interviews does not amount to negligence, but even if the State 8 was negligent, negligence should not be weighed heavily against the State. The State 9 also argues that complications stemming from Lewis’s arrest should be treated like a 10 missing witness, which justifies an appropriate delay. 11 {29} In State v. Moreno, the State “repeatedly failed to schedule the interviews or 12 canceled them for reasons that cannot be attributed to Defendant.” 2010-NMCA-044, 13 ¶ 29, 148 N.M. 253, 233 P.3d 782. In that case we found that the “State’s inability to 14 schedule essential witness interviews despite its repeated assurances that it would do 15 so constitute[d] bureaucratic indifference” and weighed against the State. Id. 16 {30} Here, there were two occasions when the State had scheduling issues. First, in 17 its January 15, 2010 request for continuance the State had to reschedule witness 18 interviews because the witnesses had the dates wrong. In that same motion, the State 19 explained that Lewis had recently been indicted for an unrelated crime and required

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1 an attorney to be present during his interview. The State had to wait to interview 2 Lewis until an attorney was appointed to him. Defendant opposed this motion. 3 {31} In the State’s April 16, 2010 motion for continuance, the State said it still 4 needed to conduct interviews of the emergency room doctors who treated the victims. 5 The State also had interviews scheduled with police officers, but had to reschedule 6 because the interviews were “inadvertently not confirmed with [Defendant’s] 7 counsel.” 8 {32} While the delay in interviewing Mr. Lewis could not be helped, the January and 9 April 2010 requests for more time to interview witnesses occurred a year after 10 Defendant’s indictment. We view this as negligent delay and weigh delays in 11 interviewing witnesses against the State. 12 3. Caseload 13 {33} Defendant argues that the State’s sixth request for continuance was because of 14 the State’s caseload and should be weighed against the State. Administrative burdens 15 on the criminal justice system are weighed against the State. Garza, 2009-NMSC-038, 16 ¶ 29. In its October 16, 2009 and October 5, 2010 motions, the State said that it had 17 other trials scheduled for the same time period. In response to the State’s October 16, 18 2009 motion, defense counsel also stated he had other trials scheduled at the same 19 time as Defendant’s trial. We weigh the excessive case load only slightly against the

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1 State. See Zurla v. State, 1990-NMSC-011, ¶ 14, 109 N.M. 640, 789 P.2d 588 (stating 2 that excessive caseload is to be weighed less heavily against the prosecution than 3 intentional delay); Laney, 2003-NMCA-144, ¶ 17 (indicating that delay attributable 4 to excessive caseload is a form of negligent delay and is a “more neutral reason that 5 weighs lightly against the [prosecution]”). 6 {34} To sum up, the State “bears the primary responsibility to bring cases to trial 7 within a reasonable time.” Salandre v. State, 1991-NMSC-016, ¶ 20, 111 N.M. 422, 8 806 P.2d 562. However, both parties contributed to this delay in some way. In 9 considering all the reasons for delay, we weigh the reasons neutrally. 10 C. Defendant’s Assertion of the Right to a Speedy Trial 11 {35} “[T]he defendant’s assertion of or failure to assert his right to a speedy trial is 12 one of the factors to be considered in an inquiry into the deprivation of the right.” 13 Barker, 407 U.S. at 528. Defendant argues that his three pro se motions support his 14 assertion of his right to a speedy trial. Defendant argues that he did not knowingly fail 15 to object or delay his filings for strategic purposes. He explains that in his October 1, 16 2010 motion objecting to extensions and continuances, he stated that he never 17 discussed the continuances with his trial counsel and had little to no contact with his 18 trial counsel. Defendant argues that he made a vigorous assertion of his rights by 19 filing several pro se motions.

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1 {36} The State counters that defense counsel stipulated to all but one of the State’s 2 extension requests and Defendant did not assert his speedy trial rights until his third 3 lawyer entered the case. The State also argues that of Defendant’s three pro se 4 motions, only one asserted his speedy trial rights. Finally, the State argues that 5 Defendant’s assertion was not of the frequency or force that should lead us to weigh 6 this third factor in favor of Defendant. 7 {37} “[W]e assess the timing of the defendant’s assertion and the manner in which 8 the right was asserted.” Garza, 2009-NMSC-038, ¶ 32. “[W]e accord weight to the 9 ‘frequency and force’ of the defendant’s objections to the delay.” Id. (quoting Barker, 10 407 U.S. at 529). We also look at the defendant’s actions with regard to the delay, 11 such as defense motions that slow down the process and procedural maneuvers to 12 delay the trial. Id. The defendant’s failure to assert the right is not error since the right 13 is fundamental. Id. However, “timeliness and vigor with which the right is asserted 14 may be considered as an indication of whether a defendant was denied needed access 15 to speedy trial over his objection or whether the issue was raised on appeal as 16 afterthought.” Id. 17 {38} On February 23, 2009, defense counsel filed a demand for a speedy trial. 18 Defendant also filed a pro se motion to dismiss for violation of his right to a speedy 19 trial on September 15, 2010. At this point Defendant had been incarcerated since

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1 January 13, 2009. Around the same time, Defendant also filed a motion to dismiss for 2 ineffective assistance of counsel claiming that his attorney never communicated with 3 him about the extensions and continuances and failed to take any action in his case. 4 Defendant also filed a motion objecting to the continuances and extensions stating that 5 Defendant never agreed to any extension or continuance, and did not have an 6 opportunity to object to the July 12, 2009, October 16, 2009, January 15, 2010, and 7 the April 16, 2010 motions. The district court held a hearing on Defendant’s pro se 8 motions on November 9, 2010, and denied them. 9 {39} Defendant argues that the delay is due to the State’s and Defendant’s attorney 10 continuously acquiescing to long delays without his consent. He contends that his pro 11 se motions demonstrate his vigorous assertions of his right and should be given 12 greater weight than similar motions in Garza. We recognize that defense counsel 13 stipulated to most of the time extensions. Moreover, Defendant’s pro se motions were 14 filed in September and October 2010 after Defendant had already spent over eighteen 15 months incarcerated. We therefore weigh this factor only slightly in favor of 16 Defendant. 17 D. Particularized Showing of Prejudice to Defendant 18 {40} Our analysis of prejudice focuses on protecting three interests: (1) to prevent 19 oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused;

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1 and (3) to limit the possibility that the defense will be impaired. Garza, 2009-NMSC- 2 038, ¶ 35. Here, Defendant was incarcerated for approximately twenty-seven months 3 before the case was tried. We therefore agree that Defendant suffered prejudice by 4 virtue of his pretrial incarceration. See Moreno, 2010-NMCA-044, ¶ 36 (concluding 5 that the defendant was prejudiced because the period of pretrial incarceration was 6 twenty-two months); State v. Ochoa, 2014-NMCA-065, ¶ 23, 327 P.3d 1102 7 (concluding that the defendant was prejudiced by being incarcerated to a two-year 8 period between his arrest and trial). However, we recognize that “some degree of 9 oppression and anxiety is inherent for every defendant who is jailed while awaiting 10 trial.” Id. ¶ 22 (internal quotations and alterations omitted). Moreover, without a 11 particularized showing of prejudice, we will not “speculate as to the impact of pretrial 12 incarceration on a defendant or the degree of anxiety” he suffered. Garza, 2009- 13 NMSC-038, ¶ 32. 14 {41} Defendant argues that the delay implicated each of the three categories of 15 prejudice. Defendant contends that because the first three factors weigh heavily in his 16 favor, he does not need to make a particularized showing of prejudice to demonstrate 17 that his speedy trial right was violated. However, Defendant still argues that he sat in 18 jail for twenty-seven months with little to no assistance of counsel awaiting trial,

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1 which support Defendant’s undue oppression and anxiety. Defendant also argues that 2 the delay impaired his defense because eyewitness testimony lost accuracy. 3 {42} The State asserts that Defendant failed to demonstrate that he was prejudiced 4 in a cognizable manner by the delay. We agree. Defendant failed to state with 5 particularity how he was prejudiced by the delay. Defendant states that he was unable 6 to gather evidence, contact witnesses, or otherwise prepare his defense. However, 7 Defendant fails to state with any particularity how “the delay caused the unavailability 8 of a witness and impaired the defense” and “what exculpatory testimony would have 9 been offered.” Garza, 2009-NMSC-038, ¶ 36 (internal quotation marks and citation 10 omitted). Defendant makes no showing of particularized prejudice. We therefore 11 weigh this factor only slightly in Defendant’s favor. Moreno, 2010-NMCA-044, ¶ 37 12 (concluding that the prejudicial prong weighed “slightly” in favor of the defendant 13 when he was incarcerated for twenty-two months). 14 E. Balancing Test 15 {43} In balancing the four factors in this case, the primary issue we consider is 16 “whether a court can find a violation of a defendant’s speedy trial right without a 17 particularized showing of prejudice.” Garza, 2009-NMSC-038, ¶ 38. Upon analyzing 18 the four factors we determine that the length of delay weighs against the State; the 19 reasons for delay weigh neutrally; and Defendant’s assertion of his right weighs

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1 slightly in his favor. However, Defendant failed to make a particularized showing of 2 prejudice. We therefore conclude that Defendant was not deprived of his 3 constitutional right to a speedy trial. See id. ¶ 40 (concluding that where the defendant 4 failed to demonstrate particularized prejudice and remaining factors did not weigh 5 heavily in the defendant’s favor, there was no speedy trial violation); Zurla, 1990- 6 NMSC-011, ¶ 8 (stating that “no one factor constitutes either a necessary or sufficient 7 condition to finding a deprivation of the right to a speedy trial”). 8 II. Defendant’s Convictions Violate the Prohibition Against Double Jeopardy 9 {44} Defendant was convicted of attempted first degree murder and two counts of 10 aggravated battery against Hicks and two counts of aggravated battery against Lewis. 11 Defendant argues that the aggravated battery convictions arose out of unitary conduct 12 and violate double jeopardy. The State agrees with Defendant that three of 13 Defendant’s four convictions of aggravated battery should be vacated. We first 14 address the law of double jeopardy and then address how the law applies to the 15 convictions. 16 {45} “The Fifth Amendment of the United States Constitution prohibits double 17 jeopardy and is made applicable to New Mexico by the Fourteenth Amendment.” 18 State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. The Double Jeopardy Clause of 19 the United States Constitution guarantees that no “person be subject for the same

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1 offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. “Double 2 jeopardy protects against multiple punishments for the same offense.” State v. Silvas, 3 2015-NMSC-006, ¶ 8, 343 P.3d 616. Double jeopardy presents an issue of law that 4 is reviewed de novo. State v. Montoya, 2013-NMSC-020, ¶ 29, 306 P.3d 426. 5 {46} There are two types of multiple punishment cases: unit-of-prosecution cases, 6 in which an individual is convicted of multiple violations of the same criminal statute, 7 and double-description cases, in which a single act results in multiple convictions 8 under different statutes. See Swafford v. State, 1991-NMSC-043, ¶¶ 8-9, 112 N.M. 3, 9 810 P.2d 1223. This case is the latter. 10 {47} We analyze Defendant’s double-description double jeopardy claim in 11 accordance with the two-part test set forth in Swafford. Id. ¶¶ 27-34. Under Swafford, 12 we first analyze whether the defendant’s conduct was unitary. Id. ¶ 25. If the conduct 13 is not unitary, the analysis ends and double jeopardy does not apply. Id. However, if 14 the conduct is unitary, then we must determine if the Legislature intended to punish 15 the offenses separately. Id. 16 {48} First, “[c]onduct is unitary when not sufficiently separated by time and place, 17 and the object and result or quality and nature of the acts cannot be distinguished.” 18 Silvas, 2015-NMSC-006, ¶ 10. If one statute is subsumed within the other, the inquiry

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1 is over and the statues are the same for double jeopardy purposes—punishment cannot 2 be had for both. Montoya, 2013-NMSC-020, ¶ 31. 3 {49} Second, we determine “whether Defendant has been punished twice for the 4 same offense, and if so, whether the Legislature intended that result.” Silvas, 2015- 5 NMSC-006, ¶ 11. To do so, we utilize “traditional means of determining legislative 6 intent: the language, history, and subject of the statutes, and we must identify the 7 particular evil sought to be addressed by each offense.” Montoya, 2013-NMSC-020, 8 ¶ 32 (internal quotation marks and citation omitted). We take “into consideration the 9 relationship between the statutory offenses and their common commission by unitary 10 conduct, the . . . social harms to which they are directed, and their use by the State in 11 [the] case.” Id. ¶ 52. Typically, if the two statutes are “usually violated together, [and] 12 seem designed to protect the same social interest, the inference becomes strong that 13 the function of the multiple statutes is only to allow alternative means of prosecution.” 14 Id. ¶ 32 (internal quotation marks and citation). Furthermore, “lenity applies in cases 15 of ambiguity regarding the reach of criminal statutes, because reasonable minds can 16 differ as to the Legislature’s intent in punishing the two crimes.” Id. ¶ 51 (alteration, 17 internal quotation marks, and citation omitted).

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1 {50} “Only if the first part of the test is answered in the affirmative, and the second 2 in the negative, will the double jeopardy clause prohibit multiple punishment in the 3 same trial.” Swafford, 1991-NMSC-043, ¶ 25. 4 {51} We address the convictions for Defendant’s crimes committed against the two 5 victims. 6 A. Anthony Hicks 7 {52} The jury convicted Defendant of attempted first-degree murder, aggravated 8 battery with a deadly weapon, and aggravated battery causing great bodily harm 9 against Anthony Hicks. Defendant argues on appeal that the two counts of aggravated 10 battery violate the prohibition against double jeopardy. Defendant asserts that 11 attempted first degree murder and aggravated battery arise from unitary conduct and 12 the Legislature did not intend to punish the two crimes separately. The State agrees 13 that the aggravated battery charges should be vacated. 14 {53} In this case, there was a confrontation between Defendant and Hicks resulting 15 in Defendant shooting Hicks in the head. The State used eyewitness testimony to 16 prove all three counts. We agree with Defendant that his conduct involved a single act 17 of one shot against Hicks. Therefore, the three crimes the State charged were one 18 illegal act, making the conduct unitary.

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1 {54} Given the unitary conduct, we now determine whether the legislature intended 2 the result. In Swick, 2012-NMSC-018, ¶ 19, our Supreme Court ruled that “the 3 Legislature did not intend multiple punishments for attempted murder and aggravated 4 battery arising from the same conduct because the latter is subsumed by the former.” 5 In that case, like the one before us, the defendant was convicted of aggravated battery 6 with a deadly weapon and attempted murder among other convictions. Id. ¶ 6. The 7 parties did not dispute that the underlying conduct supporting the convictions was 8 unitary. Id. ¶ 20. Then the Court determined the Legislature’s intent. The Court 9 determined that the State used the aggravated batteries to prove the “began to do an 10 act which constituted a substantial part of Murder” element of attempted murder. Id. 11 ¶ 25. The State proffered the same testimony to prove the aggravated batteries and the 12 attempted murder. Id. ¶ 26. “[T]he aggravated battery elements were subsumed within 13 the attempted murder elements.” Id. ¶ 27. 14 {55} The Court added that “[e]ven if the elements of attempted murder do not 15 subsume the elements of aggravated battery, an examination of these statutes leads us 16 to conclude that [the defendant’s] convictions violate the double jeopardy prohibition” 17 for two reasons. Id. ¶ 29. “First, the social harms addressed by each statute do not 18 conclusively indicate an intent to punish separately.” Id. “Both statutes punish overt 19 acts against a person’s safety but take different degrees into consideration. The

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1 aggravated battery statute concerns itself with the intent to harm and the attempted 2 murder statute concerns itself with the intent to harm fatally.” Id. “Second, the rule of 3 lenity should have been applied in [the defendant’s] favor” because “reasonable minds 4 can differ as to the Legislature’s intent in punishing [the] two crimes.” Id. ¶ 30. For 5 these reasons the Court held that the multiple convictions could not stand. Id. 6 {56} We follow the Swick analysis and reasoning here because the circumstances are 7 alike. Like in Swick, the State’s legal theory to prove the case used the aggravated 8 batteries to prove the attempted murder. The State proffered the same testimonial 9 evidence to prove the attempted murder and the two aggravated battery convictions. 10 The Swick court also already determined that the statutes do not decisively indicate 11 an intent to punish separately, but the crimes are “related offenses [that] may be 12 presumed to be punished as a single offense.” Id. ¶ 29 (internal quotation marks and 13 citation omitted). Finally, the rule of lenity, like in Swick, should be applied in 14 Defendant’s favor when “doubt regarding legislative intent remains[.]” Id. ¶ 30. 15 Therefore, because the attempted first degree murder and the two aggravated battery 16 convictions violate the prohibition against double jeopardy, we remand this case to the 17 district court to vacate the two convictions for aggravated battery. For these reasons, 18 we hold that the multiple aggravated battery convictions cannot stand. 19 B. Adrian Lewis

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1 {57} A jury convicted Defendant of aggravated battery of Adrian Lewis with a 2 deadly weapon, and aggravated battery causing great bodily harm against Adrian 3 Lewis. Defendant argues that the conviction of both counts, rather than only one, 4 violates the prohibition against double jeopardy. Defendant explains that the State 5 charged him with one count of aggravated battery against Lewis, but presented two 6 alternatives: deadly weapon and great bodily harm. The jury then convicted Defendant 7 on both counts, which Defendant asserts violated the prohibition of double jeopardy. 8 We again determine if the conduct was unitary and if the Legislature intended separate 9 punishment for the offenses. 10 {58} Our aggravated battery statute, NMSA 1978, § 30-3-5 (1969), is singular as to 11 what aggravated battery is: “the unlawful touching or application of force to the 12 person of another with intent to injure that person.” Section 30-3-5(A). Subsection C 13 includes alternative types of aggravated battery: “inflicting great bodily harm” or 14 “with a deadly weapon.” Section 30-3-5(C). The evil sought to be addressed by the 15 statute is aggravated battery, while the alternative theories are the means for the 16 conviction. 17 {59} The indictment and the jury instructions given at trial reflect the alternative 18 charges and do not appear to charge Defendant with two counts of aggravated battery 19 for the same conduct. The indictment charges Defendant with aggravated battery with

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1 a deadly weapon, or in the alternative, aggravated battery with great bodily harm. Jury 2 instruction number nine instructs the jury on aggravated battery with a deadly weapon, 3 whereas jury instruction number ten instructs the jury on aggravated battery with great 4 bodily harm in the alternative. 5 {60} Like Defendant’s conduct towards Hicks, the testimony reveals that 6 Defendant’s actions against Lewis were within the same time and place. The two 7 “tussled” and then Defendant shot Lewis in the face. The conduct was unitary. The 8 statute also supports that the Legislature did not intend multiple punishments since 9 Subsection C allows for alternative charges. For these reasons, only one aggravated 10 battery conviction may stand, and we remand to the district court to vacate one 11 conviction of aggravated battery. 12 III. Sufficiency of the Evidence 13 {61} Defendant argues that the evidence presented at trial was insufficient to support 14 the jury’s finding of guilt. Defendant contends that the evidence presented at trial was 15 “inherently improbable” and could not have supported the jury’s finding beyond a 16 reasonable doubt that Defendant was not acting in self-defense during the altercations 17 with Hicks and Lewis. The State contends that the State’s proof of Defendant’s guilt 18 was overwhelming. The State maintains that witness testimony demonstrated that 19 there was no altercation between Defendant and the victims and that the jury resolved

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1 issues of witness credibility in favor of the State’s witnesses. Upon reviewing the 2 evidence in light of the jury verdict, we affirm Defendant’s convictions. 3 {62} On appeal, our review of the sufficiency of the evidence to support a criminal 4 conviction is “to determine whether the record evidence could reasonably support a 5 finding of guilt beyond a reasonable doubt.” State v. Garcia, 1992-NMSC-048, ¶ 26, 6 114 N.M. 269, 837 P.2d 862 (quoting Jackson v. Virginia, 443 U.S. 307, 317-19 7 (1979)). We determine whether “after viewing the evidence in the light most favorable 8 to the prosecution, any rational trier of fact could have found the essential elements 9 of the crime beyond a reasonable doubt.” Id. (emphasis omitted). “[W]e resolve all 10 disputed facts in favor of the State, indulge all reasonable inferences in support of the 11 verdict, and disregard all evidence and inferences to the contrary.” State v. Rojo, 1999- 12 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 13 {63} Where the defendant presents evidence of self-defense, the jury is charged with 14 weighing the evidence and credibility of the testimony presented. See State v. Gurule, 15 2004-NMCA-008, ¶ 38, 134 N.M. 804, 82 P.3d 975 (“It is up to the jury to weigh the 16 testimony and contradictory evidence and believe or disbelieve any testimony it 17 hears.”). It is for the jury to determine whether it believes the defendant’s evidence 18 and theory of self-defense. State v. Hunter, 2001-NMCA-078, ¶ 16, 131 N.M. 76, 33 19 P.3d 296. If the jury rejects the defendant’s assertion of self-defense, it is not

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1 unreasonable that the defendant should be found guilty of the crime. State v. Harrison, 2 1970-NMCA-071, ¶ 40, 81 N.M. 623, 471 P.2d 193. “Contrary evidence supporting 3 acquittal does not provide a basis for reversal because the jury is free to reject [the 4 d]efendant’s version of the facts.” Rojo, 1999-NMSC-001, ¶ 19. 5 {64} Defendant was convicted of one count of attempted first degree-murder, two 6 counts of aggravated battery against Hicks, and two counts of aggravated battery 7 against Lewis. Having already determined that three of the aggravated battery counts 8 violated the prohibition against double jeopardy, we address the sufficiency of the 9 evidence for the attempted first-degree murder conviction against Hicks and the 10 aggravated battery conviction against Lewis. 11 {65} First, Defendant argues that the evidence presented at trial regarding the 12 altercation with Lewis was contradictory and inconsistent with the physical evidence. 13 Defendant asserts that Lewis testified that Defendant shot at him three times, but it is 14 inherently implausible that the other witnesses did not notice the multiple gunshots. 15 Thus, Defendant asserts, we should reject the State’s evidence as a physical 16 impossibility. 17 {66} Second, Defendant argues that the evidence presented at trial was insufficient 18 to support a finding that Defendant did not act in self-defense during the altercation 19 with Hicks. Defendant explains Hicks testified that he had no specific memory about

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1 the altercation with Defendant. The other witnesses testified that they were near Hicks 2 before the gunshot and did not witness an argument between Hicks and Defendant. 3 Defendant contends that the evidence presented was therefore insufficient to allow the 4 jury to make a finding that Defendant was not acting in self-defense. 5 {67} Defendant’s assertions that the witness testimony is “inherently implausible” 6 and insufficient to support a self-defense claim are based upon his particular view of 7 the credibility of the State’s witnesses. While “[t]estimony by a witness whom the 8 factfinder has believed may be rejected by an appellate court only if there is a physical 9 impossibility that the statements are true or the falsity of the statement is apparent 10 without resort to inferences or deductions,” Gurule, 2004-NMCA-008, ¶ 38 (internal 11 quotation marks and citation omitted), other witness testimony supports the theory that 12 there were multiple gunshots. Nonetheless, “the jury was not obligated to believe 13 Defendant’s testimony, to disbelieve or discount conflicting testimony, or to adopt 14 Defendant’s view.” State v. Foxen, 2001-NMCA-061, ¶ 17, 130 N.M. 670, 29 P.3d 15 1071. See State v. Sosa, 2000-NMSC-036, ¶ 8, 129 N.M. 767, 14 P.3d 32 16 (“[C]redibility of witnesses is for the jury.”); State v. Johnson, 1983-NMSC-043, ¶ 7, 17 99 N.M. 682, 662 P.2d 1349 (stating that conflicts in the evidence, including conflicts 18 in testimony among witnesses, are to be resolved by the trier of fact).

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1 {68} In State v. Sutphin, 1988-NMSC-031, ¶ 20, 107 N.M. 126, 753 P.2d 1314, the 2 defendant also appealed arguing the evidence was insufficient to sustain the 3 conviction. In that case, a jury convicted the defendant of first-degree murder. Id. ¶ 5. 4 On appeal, the defendant claimed that “a criminal conviction [could not] be sustained 5 if a reasonable hypothesis could be designed which is consistent with innocence.” Id. 6 ¶ 20. The defendant did not deny killing the victim, but claimed that the killing had 7 been in self-defense. Id. ¶ 22. 8 {69} The Supreme Court rejected the defendant’s argument stating that “[a]n 9 appellate court does not evaluate the evidence to determine whether some hypothesis 10 could be designed which is consistent with a finding of innocence.” Id. ¶ 21. Instead, 11 the test to determine the sufficiency of the evidence is “whether substantial evidence 12 of either a direct or circumstantial nature exists to support a verdict of guilt beyond 13 a reasonable doubt with respect to every element essential to a conviction.” Id. 14 {70} Like in the present case, the jury in Sutphin was instructed on the defendant’s 15 theory of self-defense. Id. ¶ 23. Evidence conflicting the State’s theory of first degree 16 murder was also introduced, and “the jury resolved conflicts in the evidence and 17 questions of credibility in favor of guilt, thereby rejecting [the] defendant’s version 18 of the incident.” Id. The Supreme Court concluded there was sufficient evidence for 19 the jury to find the defendant guilty. Id.

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1 {71} Here, the jury rejected Defendant’s claim of acting in self-defense or defense 2 of another. Although Defendant points to evidence that supported Defendant’s theory 3 of innocence, this Court does not consider evidence supporting an acquittal when 4 reviewing the sufficiency of the evidence. See Rojo, 1999-NMSC-001, ¶ 19 5 (“Contrary evidence supporting acquittal does not provide a basis for reversal because 6 the jury is free to reject [the d]efendant’s version of the facts.”). Thus, there is 7 sufficient evidence to sustain Defendant’s conviction for attempted first-degree 8 murder and aggravated battery. 9 IV. Ineffective Assistance of Counsel 10 {72} Defendant claims that he was denied his right to effective assistance of counsel 11 at two critical stages of the proceedings. First, trial counsel failed to protect 12 Defendant’s right to speedy trial by continuously acquiescing to the State’s 13 continuances. Second, trial counsel failed to adequately prepare Defendant’s defense, 14 and denied him his right to participate in the preparation of his defense. 15 {73} A claim of ineffective assistance of counsel is established by a showing of error 16 by counsel and prejudice resulting from the error. State v. Bernal, 2006-NMSC-050, 17 ¶ 32, 140 N.M. 644, 146 P.3d 289 (citing Strickland v. Washington, 466 U.S. 668, 18 690, 692 (1984)). An error is found if the “attorney’s conduct fell below that of a 19 reasonably competent attorney.” State v. Baca, 1997-NMSC-059, ¶ 24, 124 N.M. 333,

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1 950 P.2d 776. A defendant must show “a reasonable probability that, but for counsel’s 2 unprofessional errors, the result of the proceeding would have been different.” Bernal, 3 2006-NMSC-050, ¶ 32 (internal quotation marks and citation omitted). “Without such 4 prima facie evidence, the Court presumes that defense counsel’s performance fell 5 within the range of reasonable representation.” State v. Arrendondo, 2012-NMSC- 6 013, ¶ 38, 278 P.3d 517. 7 {74} First, Defendant claims that Defendant’s trial counsel acquiesced to the State’s 8 six continuances without adequately informing Defendant and without seeking his 9 consent. He argues that the multiple continuances of trial violated Defendant’s 10 constitutional right to a speedy trial and failing to safeguard his speedy trial right falls 11 below the standard of competent representation. He also argues that he was prejudiced 12 by the twenty-seven month incarceration and that he was without the assistance of 13 counsel during most of that time and was unable to gather evidence, contact witnesses, 14 or prepare his defense. 15 {75} In this case Defendant had three different attorneys—two from the Public 16 Defender’s office and one contracted through the Public Defender’s office. 17 Defendant’s first attorney entered her appearance on February 23, 2009, and withdrew 18 on June 30, 2009, when she left the public defender’s office. Within the period that 19 she represented Defendant she negotiated at least one plea offer. Also within that time

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1 the State filed its first four motions for continuance or extension. Defense counsel 2 submitted memoranda in response to each of the State’s motions explaining the 3 progress of the case and why the State was requesting the extensions and she objected 4 to the third motion. 5 {76} Defendant’s second trial attorney was briefly appointed until realizing he had 6 a conflict of interest. He stipulated to the State’s motions for continuance to allow for 7 him to prepare for the trial. 8 {77} Defendant’s third trial attorney entered his appearance on July 21, 2010. Trial 9 counsel stipulated to the State’s motions for continuance due to conflicting trial 10 schedules. The third attorney also filed a motion for continuance requesting more time 11 to prepare for trial due to his personal ongoing medical emergency. 12 {78} The record does not support finding that defense counsels’ actions or inactions 13 fell below an objective standard of reasonableness. Even if we were to assume the 14 purported failures fell below an objective standard of reasonableness, Defendant fails 15 to show that there was a reasonable probability that but for counsel’s errors, the result 16 of the case would have been different. Defendant’s argument amounts to an assertion 17 of prejudice, without a showing of prejudice. We do not find this persuasive. See In 18 re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An 19 assertion of prejudice is not a showing of prejudice.”); see also State v. Gonzales,

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1 2011-NMCA-007, ¶ 30, 149 N.M. 226, 247 P.3d 1111 (explaining that we will not 2 consider arguments based on factual allegations that are unsupported by citation to the 3 record proper). 4 {79} Defendant argues that trial counsel failed to adequately prepare his defense and 5 denied him his right to participate in preparing his defense. Defendant asserts that trial 6 counsel failed to interview witnesses. Defendant argues that trial counsel failed to 7 meet with him until shortly before trial and did not consult with him as to trial 8 strategy. Defendant maintains that trial counsel’s inactions prejudiced him because he 9 had a strong self-defense claim. 10 {80} With regard to defense counsel failing to interview witnesses, Defendant does 11 not demonstrate how the failure to further interview witnesses was prejudicial, as 12 Defendant has not informed this Court what testimony these witnesses would have 13 provided. See Baca, 1997-NMSC-045, ¶ 20 (stating that whether a defendant was 14 prejudiced depends on whether “the allegedly incompetent representation prejudiced 15 the case such that but for counsel’s error, there is a reasonable probability that the 16 result of the conviction proceedings would have been different”), overruled on other 17 grounds by State v. Belanger, 2009-NMSC-025, ¶ 36, 146 N.M. 357, 210 P.3d 783. 18 The record does not contain any evidence of how the additional information from 19 witnesses would have changed the outcome of the proceedings. See State v. Dartez,

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1 1998-NMCA-009, ¶ 27, 124 N.M. 455, 952 P.2d 450 (holding that counsel’s failure 2 to interview the witness was not prejudicial, for purposes of a claim of ineffective 3 assistance, in the absence of any indication that the witness’s testimony would have 4 benefitted the defendant). 5 {81} Defendant also contends that his attorney failed to meet with him until shortly 6 before the trial. The record on appeal is insufficient to support this contention. See 7 State v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845; State v. Rickard, 8 1994-NMCA-083, ¶ 14, 118 N.M. 312, 881 P.2d 57 (stating that the Court of Appeals 9 will not review matters that are not of record), rev’d in part on other grounds, 1994- 10 NMSC-111, 118 N.M. 586, 884 P.2d 477. Defendant thus fails to make a prima facie 11 showing of ineffective assistance of counsel on failure to communicate. See State v. 12 Hosteen, 1996-NMCA-084, ¶ 6, 122 N.M. 228, 923 P.2d 595, aff’d on other grounds 13 by 1997-NMSC-063, 124 N.M. 402, 951 P.2d 619; see also State v. Chamberlain, 14 1991-NMSC-094, ¶ 47, 112 N.M. 723, 819 P.2d 673 (stating that “the amount of time 15 counsel spent with [the] defendant, without more, does not constitute ineffective 16 assistance of counsel”). 17 {82} Defendant also fails to demonstrate what further action trial counsel should 18 have taken to bolster Defendant’s self-defense claim. Trial counsel had Defendant 19 testify to recount the events and elicit Defendant’s state-of-mind during the night of

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1 the events. Trial counsel had two self-defense instructions and two defense of another 2 instructions conforming to UJI 14-5181 and 14-5182 NMRA. “Without additional, 3 specific evidence as to the basis of Defendant’s defense, we cannot say that but for 4 counsel’s performance, there is a reasonable probability that the outcome would have 5 been different. In other words, there has been no prima facie showing of prejudice to 6 Defendant.” State v. Cordova, 2014-NMCA-081, ¶ 10, 331 P.3d 980, cert. denied, 7 2014-NMCERT-007, 331 P.3d 923. 8 {83} As we have stated, the record here is insufficient to establish whether defense 9 counsel’s actions were unreasonable or caused prejudice. Defendant has not 10 established a prima facie case of ineffective assistance of counsel given the deficiency 11 of the record. State v. Plouse, 2003-NMCA-048, ¶ 15, 133 N.M. 495, 64 P.3d 522. We 12 leave the way open for him to pursue the issue in a habeas proceeding as our courts 13 prefer habeas proceedings so that “the defendant may actually develop the record with 14 respect to defense counsel’s actions.” State v. Arrendondo, 2012-NMSC-013, ¶ 38. 15 V. Testimony Before the Grand Jury 16 {84} Defendant contends, pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 17 127, 428 P.2d 982, and State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1, 18 that he was denied his right to testify before a grand jury under NMSA 1978, Section 19 31-6-11 (2003) and requests that the indictment be dismissed. The State asserts that

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1 Defendant’s argument presents no challenge to the indictment and any error in the 2 indictment would have been cured by the trial verdict. 3 {85} Although Defendant’s argument is not fully developed, we will address it 4 because Defendant presented it pursuant to Franklin and Boyer. See Headley v. 5 Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076 6 (declining to entertain a cursory argument that relied on several factual assertions that 7 were made without citation to the record). 8 {86} Section 31-6-11(C) provides in part that “the target of a grand jury investigation 9 shall be notified in writing . . . [of his] right to testify no earlier than four days after 10 receiving the target notice if he is in custody[.]” Section 31-6-11(C)(3). The two 11 purposes of the grand jury are “to investigate the matter for which it is called and to 12 determine from the evidence if there is probable cause to believe an offense has been 13 committed” and to “protect citizens against unfounded accusations[.]” State v. Bent, 14 2012-NMSC-038, ¶ 17, 289 P.3d 1225 (alteration, internal quotation marks, and 15 citation omitted) (citing UJI 14-8001 NMRA). However, “because Defendant has 16 brought this issue to us so late . . . we cannot fashion a relief that would be consistent 17 with the constitutional purpose of requiring a grand jury in the first place.” Bent, 18 2012-NMSC-038, ¶ 20. “[T]here is no simple way after the verdict to restore the 19 defendant to the position in which he would have been had the indictment been

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1 dismissed before trial.” Id. ¶ 22 (quoting United States v. Mechanik, 475 U.S. 66, 71 2 (1986)). Additionally, Defendant does not allege that not testifying at the grand jury 3 proceedings had any effect on the outcome of the trial. See id. ¶ 26. The jury verdict 4 “rendered harmless any conceivable error in the charging decision.” Id. ¶ 27 (internal 5 quotation marks and citation omitted). 6 CONCLUSION 7 {87} Consistent with this Opinion, we affirm Defendant’s convictions for attempted 8 first degree murder of Anthony Hicks and one conviction of aggravated battery of 9 Adrian Lewis. We remand this case to the district court to vacate Defendant’s two 10 convictions for aggravated battery of Anthony Hicks and his one conviction of 11 aggravated battery of Adrian Lewis and for resentencing if appropriate. 12 {88} IT IS SO ORDERED.

13 _______________________________ 14 MICHAEL E. VIGIL, Chief Judge

15 WE CONCUR:

16 _________________________________ 17 JAMES J. WECHSLER, Judge

18 _________________________________ 19 RODERICK T. KENNEDY, Judge