State v. Navarette

Opinion

This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

2 Filing Date: July 19, 2018 3 STATE OF NEW MEXICO, 4 Plaintiff-Appellee, 5 v. NO. S-1-SC-35528 6 ARNOLDO NAVARETTE, 7 Defendant-Appellant.

8 APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY 9 Fred T. Van Soelen, District Judge

10 Bennett J. Barr, Chief Public Defender 11 Nina Lalevic, Assistant Appellate Defender 12 Santa Fe, NM

13 for Appellant

14 Hector H. Balderas, Attorney General 15 Elizabeth Ashton, Assistant Attorney General 16 Santa Fe, NM

17 for Appellee 1 DECISION 2 MAES, Justice. 3 {1} A jury convicted Defendant Arnoldo Navarette of willful, deliberate, and 4 premeditated first-degree murder under NMSA 1978, Section 30-2-1(A)(1) (1994), 5 and of aggravated battery with a deadly weapon under NMSA 1978, Section 30-3- 6 5(C) (1969). The district court sentenced Defendant to life imprisonment for the 7 murder, plus three years for the aggravated battery. 8 {2} Defendant appeals directly to this Court and raises seven issues: (1) the district 9 court erred by admitting evidence of a previous altercation that involved Defendant, 10 (2) Defendant’s convictions are not supported by sufficient evidence, (3) the district 11 court improperly denied Defendant’s request to instruct the jury on voluntary 12 manslaughter, (4) the district court erred by allowing a portion of Defendant’s video- 13 recorded interview with law enforcement to be played for the jury, (5) the district 14 court abused its discretion by denying Defendant’s motion to change venue, (6) 15 Defendant received ineffective assistance of counsel, and (7) Defendant’s convictions 16 must be reversed due to cumulative error. 17 {3} We have jurisdiction under Article VI, Section 2 of the New Mexico 18 Constitution and Rule 12-102(A)(1) NMRA, and we affirm. Because Defendant 19 raises no questions of law that New Mexico precedent does not already sufficiently

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1 address, we dispose of Defendant’s appeal in this non-precedential decision. See Rule 2 12-405(B)(1) NMRA. 3 I. BACKGROUND 4 {4} Defendant was originally tried and convicted in 2010 for the first-degree 5 murder of Reynaldo Ornelas (Reynaldo) and the aggravated battery of Danny Ornelas 6 (Danny). On appeal, this Court held that certain expert testimony at Defendant’s trial 7 violated the Confrontation Clause and therefore reversed his convictions and 8 remanded for a new trial. See State v. Navarette, 2013-NMSC-003, 294 P.3d 345. 9 The instant appeal arises from Defendant’s second trial, in which he was tried and 10 convicted again of the same crimes. 11 {5} Defendant’s convictions stem from an incident that took place in Portales on 12 Memorial Day weekend in 1993. According to multiple witnesses, Reynaldo and 13 Danny were shot as they were standing next to a parked car that was occupied by 14 Defendant and Defendant’s brother-in-law, Dolores “Lolo” Ortega. Reynaldo died 15 from a single gunshot wound to the chest. Danny was shot twice in the arm and 16 survived his injuries. Witnesses gave conflicting testimony at Defendant’s trial about 17 whether Defendant or Lolo had shot the two men. 18 {6} Defendant testified in his own defense that he did not shoot Reynaldo or Danny.

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1 Defendant explained that just before the shooting began, he had ducked down in the 2 passenger seat and did not see who fired the shots. But after the shooting stopped and 3 Lolo had driven away, Defendant saw Lolo put a gun under his left leg. Defendant 4 also explained that he left for Denver the day after the shooting and that he later 5 moved to Mexico out of fear of retribution from the Ornelas family. Defendant was 6 arrested in Texas and extradited back to New Mexico in 2009, sixteen years after the 7 shootings occurred. Defendant confirmed that he was relieved when he “finally got 8 arrested” because he “wanted the . . . truth to come out.” 9 {7} At the conclusion of Defendant’s trial, the jury was instructed on first-degree 10 murder, second-degree murder as a lesser included offense, and aggravated battery 11 with a deadly weapon. After deliberating for less than two hours, the jury convicted 12 Defendant of first-degree murder and aggravated battery with a deadly weapon. This 13 appeal followed. Additional facts will be provided as needed throughout this decision. 14 II. DISCUSSION 15 A. The District Court Did Not Admit Improper Propensity Evidence 16 {8} Defendant first argues that the district court erred when it allowed one of 17 Reynaldo’s brothers, Rick Ornelas (Rick), to testify about a confrontation with 18 Defendant that took place more than two months before Reynaldo was killed. Over

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1 Defendant’s objection, the following question-and-answer exchange took place at the 2 outset of Rick’s direct examination:

3 Q: Now, in February of 1993, did you have an altercation with 4 Arnoldo Navarette?

5 A: I did. He pulled a gun on me. 6 Q: Was it a handgun or a rifle? 7 A: It was a handgun. 8 Q: And was that reported to the police? 9 A: Yes, it was. 10 The State moved on immediately from this subject and did not question Rick or any 11 other witness about the February incident or refer to the incident in closing argument. 12 Defendant later testified that he could not remember a specific incident with Rick in 13 February of 1993 “because we had fights every weekend. I don’t remember exactly 14 anything about guns or anything.” Defendant also testified that he had never been 15 arrested or convicted of a felony before his arrest in this case. 16 1. The Evidence Was Probative of Defendant’s Motive 17 {9} Defendant argues on appeal that Rick’s testimony about the February incident 18 should have been excluded under Rule 11-404(B) NMRA as impermissible evidence 19 of an alleged “crime, wrong, or other act,” offered to show only that Defendant had

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1 a propensity for “violence with guns.” The State argues that the evidence was 2 admissible under Rule 11-404(B)(2) to show that Defendant had the motive and 3 opportunity to commit the crimes in question. We review the admissibility of 4 evidence under Rule 11-404(B) for an abuse of discretion. E.g., State v. Otto, 2007- 5 NMSC-012, ¶ 9, 141 N.M. 443, 157 P.3d 8. “An abuse of discretion occurs when the 6 ruling is clearly against the logic and effect of the facts and circumstances of the case. 7 We cannot say the trial court abused its discretion by its ruling unless we can 8 characterize it as clearly untenable or not justified by reason.” Id. (internal quotation 9 marks and citation omitted). 10 {10} Under Rule 11-404(B)(1), “[e]vidence of a crime, wrong, or other act is not 11 admissible to prove a person’s character in order to show that on a particular occasion 12 the person acted in accordance with the character.” However, such evidence “may be 13 admissible for another purpose, such as proving motive, opportunity, intent, 14 preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Rule 15 11-404(B)(2). “[T]he issue . . . is whether there is a probative use of the evidence that 16 is not based on the proposition that a bad person is more likely to commit a crime.” 17 State v. Jones, 1995-NMCA-073, ¶ 8, 120 N.M. 185, 899 P.2d 1139. 18 {11} Rick’s testimony was admissible under Rule 11-404(B)(2) to prove, at a

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1 minimum, Defendant’s motive for the crimes against Reynaldo and Danny. 2 Defendant argued at trial that he was innocent and that Lolo was the only person in 3 the car who had a gun that day. And before Rick testified, defense counsel cross- 4 examined Danny about the feud, suggesting that the Navarettes (Defendant’s family) 5 had not been involved and that the feud was only between the Ortegas (Lolo’s family) 6 and the Ornelas family. Evidence that Defendant had pulled a gun on Rick Ornelas 7 a few months before the shooting therefore was relevant to establish that Defendant 8 had personally participated in the feud with the Ornelas family and to explain his 9 violent actions toward Reynaldo and Danny. See State v. Mireles, 1995-NMCA-026, 10 ¶ 6, 119 N.M. 595, 893 P.2d 491 (holding that evidence of a feud and previous violent 11 behavior between two rival families was relevant to prove the defendant’s motive and 12 intent when the defendant and victim were associated with families on opposite sides 13 of the feud); cf. Otto, 2007-NMSC-012, ¶ 12 (“[C]ontext may be a proper purpose 14 under Rule 11-404(B).”). Thus, the evidence was admissible for a purpose other than 15 to show a propensity for “violence with guns.”

16 2. The Evidence’s Probative Value Was Not Substantially Outweighed by the 17 Danger of Unfair Prejudice

18 {12} We therefore must consider whether the evidence’s “probative value [was] 19 substantially outweighed by a danger of . . . unfair prejudice.” Rule 11-403 NMRA;

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1 see also State v. Otto, 2005-NMCA-047, ¶ 14, 137 N.M. 371, 111 P.3d 229 (“Because 2 evidence that [the defendant] acted in accordance with a propensity would be 3 exceedingly probative evidence if admitted, even permitted uses of ‘bad acts’ evidence 4 are tempered in turn by the application of Rule 11-403 NMRA.”). Defendant argues 5 that the evidence was unfairly prejudicial because it “never had its day in court” and 6 therefore could not be corroborated. The State concedes that the evidence was 7 prejudicial but argues that it was “highly relevant,” especially given Defendant’s 8 assertion that he was innocent. 9 {13} We agree that the testimony about the February incident was prejudicial, but we 10 cannot say that it was unfairly so. See, e.g., Otto, 2007-NMSC-012, ¶ 16 (“[P]rejudice 11 is considered unfair when it ‘goes only to character or propensity.’” (quoting State v. 12 Ruiz, 1995-NMCA-007, ¶ 12, 119 N.M. 515, 892 P.2d 962)). As explained above, the 13 evidence of Defendant’s prior altercation with Rich Ornelas had significant probative 14 value to prove Defendant’s motive based on his personal participation in the ongoing 15 feud with various members of the Ornelas family. Given that Defendant’s sole 16 defense was that he was innocent, the evidence was highly relevant. See Otto, 2007- 17 NMSC-012, ¶ 14 (“‘Because a determination of unfair prejudice is fact sensitive, 18 much leeway is given trial judges who must fairly weigh probative value against

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1 probable dangers.’” (quoting State v. Woodward, 1995-NMSC-074, ¶ 19, 121 N.M. 2 1, 908 P.2d 231 (internal quotation marks omitted)). Accordingly, the district court 3 did not abuse its discretion by admitting the challenged testimony. 4 B. Sufficient Evidence Supports Defendant’s Convictions 5 {14} Defendant next argues that the State failed to introduce sufficient evidence to 6 prove that he, not Lolo, shot Reynaldo and Danny. When reviewing for sufficient 7 evidence to support a conviction, we must determine “whether substantial evidence 8 of either a direct or circumstantial nature exists to support a verdict of guilty beyond 9 a reasonable doubt with respect to every element essential to a conviction.” State v. 10 Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 557, 226 P.3d 656 (internal quotation marks 11 and citation omitted). In making that determination, we view the evidence “in the 12 light most favorable to the guilty verdict, indulging all reasonable inferences and 13 resolving all conflicts in the evidence in favor of the verdict.” State v. Guerra, 2012- 14 NMSC-027, ¶ 10, 284 P.3d 1076 (internal quotation marks and citations omitted). 15 “Contrary evidence supporting acquittal does not provide a basis for reversal because 16 the jury is free to reject [a defendant’s] version of the facts.” State v. Rojo, 1999- 17 NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. 18 {15} In challenging the sufficiency of the evidence, Defendant focuses on evidence

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1 suggesting that Lolo, not Defendant, was the shooter. Defendant points to testimony 2 that on the way to find Reynaldo, Lolo had asked an acquaintance if he “wanted to see 3 a murder,” that Lolo was the one who called Reynaldo over to the car before Reynaldo 4 was shot, and that there was conflicting testimony about whether Defendant or Lolo 5 had shot Reynaldo and Danny. Defendant also argues that expert testimony that 6 Reynaldo was shot from a distance of more than two feet away was inconclusive about 7 who actually pulled the trigger. And Defendant argues that the Ornelas family 8 members’ testimony should not be trusted because they were motivated to get a 9 conviction for Reynaldo’s death. 10 {16} Despite the evidence cited by Defendant, the jury heard sufficient evidence to 11 conclude beyond a reasonable doubt that Defendant was the shooter. Two 12 witnesses—including Danny, who was with Reynaldo by the open driver’s side 13 window of Lolo’s car—testified that they saw Defendant reach down, pull out a gun, 14 and start shooting from the passenger seat. The same two witnesses further testified 15 that Lolo was in the driver seat of the car and that they never saw him with a gun. 16 And both witnesses testified that they saw Lolo moved back in his seat when 17 Defendant pulled out the gun and started firing. The jury was free to conclude from 18 this testimony that Defendant, not Lolo, shot Reynaldo and Danny and to reject

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1 Defendant’s version of the facts. 2 {17} Other evidence also supported the jury’s verdicts. There was expert testimony 3 that the lack of gunshot residue on Reynaldo’s clothing meant that he was shot from 4 a distance of more than two to three feet, and numerous witnesses testified that 5 Reynaldo was standing near the driver-side window with his hand on top of the car 6 when the shooting began. Based on this evidence, the jury could have concluded that 7 the shots must have been fired from the passenger seat, where Defendant was seated, 8 because Lolo would have fired from too close to Reynaldo to explain the lack of 9 gunshot residue on Reynaldo’s clothing. The jury also could have viewed 10 Defendant’s testimony that he left for Denver the day after the shooting and eventually 11 moved to Mexico, leaving his wife and children in Portales, as evidence that he fled 12 to avoid capture for shooting Reynaldo and Danny. See, e.g., State v. Flores, 2010- 13 NMSC-002, ¶ 23, 147 N.M. 542, 226 P.3d 641 (“[E]vidence of flight . . . may prove 14 consciousness of guilt.”). The jury thus heard sufficient evidence to conclude that 15 Defendant shot Reynaldo and Danny.

16 C. The District Court Did Not Err By Refusing To Instruct the Jury on 17 Voluntary Manslaughter

18 {18} Defendant next argues that the district court improperly denied his request to 19 instruct the jury on voluntary manslaughter as a lesser-included offense of first-degree

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1 murder. “The propriety of jury instructions given or denied is a mixed question of law 2 and fact” that we review de novo. State v. Salazar, 1997-NMSC-044, ¶ 49, 123 N.M. 3 778, 945 P.2d 996. 4 {19} Near the close of the evidence, the district court granted the State’s request to 5 instruct the jury on the lesser-included offense of second-degree murder, over 6 Defendant’s “adamant” objection. Defendant argued against the instruction, 7 explaining that the State had focused its entire trial strategy on proving first-degree 8 murder and that the jury should not be given the opportunity to convict Defendant of 9 second-degree murder as a “compromise verdict.” Having lost the argument, 10 Defendant requested that the jury also be instructed on voluntary manslaughter as a 11 lesser-included offense because there was evidence that Defendant may have been 12 provoked. See UJI 14-220 NMRA (“The difference between second degree murder 13 and voluntary manslaughter is sufficient provocation.”). For reasons that are less than 14 clear, the district court refused Defendant’s requested instruction and instructed the 15 jury only on first- and second-degree murder. The jury later found Defendant guilty 16 of the greater offense. 17 {20} We previously have held that a district court’s failure to provide a jury 18 instruction on a lesser-included offense is reversible error when: “(1) the lesser

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1 offense is included in the greater, charged offense; (2) there is evidence tending to 2 establish the lesser included offense and that evidence establishes that the lesser 3 offense is the highest degree of crime committed; and (3) the defendant has tendered 4 appropriate instructions preserving the issue.” State v. Jernigan, 2006-NMSC-003, 5 ¶ 21, 139 N.M. 1, 127 P.3d 537. In this appeal, only the second element is at issue; 6 specifically, whether there was sufficient evidence of provocation to support a 7 conviction of voluntary manslaughter. We therefore must determine “whether ‘there 8 is a rational view of the evidence that would lead the jury to conclude beyond a 9 reasonable doubt that Defendant committed the lesser included offense while still 10 harboring a reasonable doubt that Defendant committed the charged offense.’” Id. ¶ 11 23 (quoting State v. Hill, 2001-NMCA-094, ¶ 17, 131 N.M. 195, 34 P.3d 139). 12 {21} Sufficient provocation is “any action, conduct or circumstances which arouse 13 anger, rage, fear, sudden resentment, terror or other extreme emotions. The 14 provocation must be such as would affect the ability to reason and to cause a 15 temporary loss of self control in an ordinary person of average disposition.” UJI 14- 16 222 NMRA. “It is settled law that the victim must be the source of the provocation.” 17 State v Munoz, 1992-NMCA-004, ¶ 12, 113 N.M. 489, 827 P.2d 1303 (citing State v. 18 Manus, 1979-NMSC-035, ¶ 16, 93 N.M. 95, 597 P.2d 280, overruled on other

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1 grounds by Sells v. State, 1982-NMSC-125, ¶ 10, 98 N.M. 786, 653 P.2d 162). “The 2 appropriate inquiry is whether there is [sufficient] evidence that [the victim] 3 individually provoked [the defendant].” State v. Jim, 2014-NMCA-089, ¶ 15, 332 4 P.3d 870 (citing Manus, 1979-NMSC-035, ¶ 16). 5 {22} Defendant argues that there was sufficient evidence of provocation to support 6 a jury instruction on voluntary manslaughter. Specifically, he points to his own 7 testimony that, just before the shooting began, Danny and his cousin were 8 approaching Lolo’s car looking “very upset,” and Lolo yelled, “Look out. They’ve 9 got a piece.” Defendant also points to evidence that Danny and his cousin “escalated 10 the situation.” Defendant testified that while he and Lolo were talking to Reynaldo, 11 Danny and his cousin pulled up in their truck, got out, and walked towards Lolo’s car, 12 yelling at Lolo and Defendant to get out of the car so that “they could whip us or beat 13 us.” Defendant further testified that once Lolo yelled, “Look out,” Defendant ducked 14 down “with [his] head between [his] legs” and did not look up until the shooting had 15 ended and Lolo had driven away. 16 {23} The State argues that the evidence cited by Defendant was insufficient to 17 support a jury instruction for voluntary manslaughter. While that evidence may have 18 suggested that Defendant was frightened as a result of Danny yelling and approaching

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1 the car, none of the evidence introduced at trial suggested that the victim of the 2 homicide, Reynaldo, “individually provoked Defendant.” Jim, 2014-NMCA-089, ¶ 3 15; see also Manus, 1979-NMSC-035, ¶ 16. In fact, even Defendant testified that 4 Reynaldo “turned around” after “somebody . . . called him back” from Lolo’s car. 5 Under these circumstances, there was no evidence that Reynaldo did anything to 6 “cause a temporary loss of self control” that would mitigate or lessen Defendant’s 7 culpability for killing him. UJI 14-222; see also UJI 14-220 (“Sufficient provocation 8 reduces second degree murder to voluntary manslaughter.”). The district court 9 therefore did not err in denying Defendant’s requested instruction on voluntary 10 manslaughter. 11 {24} We also note that all of the purported evidence of provocation cited by 12 Defendant came from his own testimony, in which he flatly denied shooting Reynaldo 13 or Danny. It therefore would be incongruous to hold that Defendant’s testimony 14 provided sufficient evidence that he killed Reynaldo out of “anger, rage, fear, sudden 15 resentment, terror or other extreme emotions,” UJI 14-222, when that very testimony 16 proclaimed that Defendant did not kill Reynaldo at all. Cf. Manus, 1979-NMSC-035, 17 ¶ 22 (holding that an instruction on voluntary manslaughter was not required when, 18 “to convict of voluntary manslaughter, the jury would have had to fragment the

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1 testimony of [the defendant] to such a degree as to distort it”). Moreover, this is not 2 a case in which we are concerned about an all-or-nothing approach by the State. See, 3 e.g., State v. Meadors, 1995-NMSC-073, ¶ 47, 121 N.M. 38, 908 P.2d 731 (Ransom, 4 J., specially concurring) (“There is a legitimate concern that conviction of the greater 5 offense may result because acquittal is an alternative that is unacceptable to the 6 jury.”). Indeed, it was Defendant who argued that “[t]his is an all-or-nothing case” 7 and who implored the jury not to reach a “compromise” verdict on second-degree 8 murder. The State requested the step-down instruction for second-degree murder, and 9 the jury convicted Defendant of the greater offense of first-degree murder after 10 deliberating for less than two hours. Under these circumstances, we cannot say that 11 the district court erred by refusing to instruct the jury on voluntary manslaughter.

12 D. Defendant Knowingly, Voluntarily, and Intelligently Waived His Right To 13 Remain Silent

14 {25} Defendant next argues that the district court erred when it partially denied his 15 motion to suppress a video recording of his interrogation by two law enforcement 16 officers shortly after his arrest in 2009. The district court permitted the State to show 17 the trial jury the first eleven minutes of the video, which according to Defendant, 18 consisted of a discussion of Defendant’s “biographical information and his 19 whereabouts between 1993 and 2009.” On appeal, Defendant argues that the district

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1 court should have suppressed all of the recording because he was not provided an 2 interpreter and therefore did not understand the officers when they advised him of his 3 Miranda rights. He also argues that the video should have been suppressed because 4 the officers proceeded with the interrogation despite Defendant’s repeated requests for 5 an attorney before the interrogation began. 6 {26} We review the denial of a motion to suppress as a mixed question of law and 7 fact:

8 [W]e accept the factual findings of the district court unless they are 9 clearly erroneous, and view the evidence in the light most favorable to 10 the district court’s ruling. The ultimate determination of whether a valid 11 waiver of [Miranda] rights has occurred, however, is a question of law 12 which we review de novo.

13 State v. Gutierrez, 2011-NMSC-024, ¶ 7, 150 N.M. 232, 258 P.3d 1024 (second 14 alteration in original) (quoting State v. Martinez, 1999-NMSC-018, ¶ 15, 127 N.M. 15 207, 979 P.2d 718). To introduce statements obtained during a custodial 16 interrogation, the State must establish by a preponderance of the evidence that the 17 defendant made “a knowing, intelligent, and voluntary waiver” of the defendant’s 18 constitutional rights. Gutierrez, 2011-NMSC-024, ¶ 7 (quoting Martinez, 1999- 19 NMSC-018, ¶¶ 13-14). Those rights include the right “to remain silent,” to be advised 20 “that any statement made by the accused may be used as evidence against him or her,”

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1 and “to the presence of an attorney, either retained or appointed.” Gutierrez, 2011- 2 NMSC-024, ¶ 7 (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). We review 3 the totality of the circumstances to determine if a defendant validly waived these 4 rights. Gutierrez, 2011-NMSC-024, ¶ 7. 5 {27} In this case, the district court partially denied Defendant’s motion to suppress 6 after an evidentiary hearing at which the court watched the video and heard in-person 7 testimony from Defendant and both of the officers who had conducted the 8 interrogation. Based on the district court’s firsthand observations of Defendant, both 9 in the video and on the witness stand, the court specifically found that Defendant 10 “understands and communicates effectively in the English language.” The district 11 court also noted that the video showed that the officers advised Defendant of his 12 Miranda rights and responded when Defendant asked for clarification. The district 13 court further found that Defendant was not credible and therefore disbelieved 14 Defendant’s assertion that he had asked for an attorney before the interrogation began. 15 The district court concluded that Defendant knowingly, voluntarily, and intelligently 16 waived his rights to remain silent and to counsel until he asked for a lawyer 17 approximately eleven minutes into the interrogation. 18 {28} The district court’s factual determinations, which are not challenged on appeal,

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1 are supported by the evidence admitted at the hearing. Based on those findings and 2 the totality of the circumstances, we conclude that Defendant understood his Miranda 3 rights and knowingly, intelligently, and voluntarily waived them for the first eleven 4 minutes of his interrogation. See Gutierrez, 2011-NMSC-024, ¶ 16 (“[T]he transcript 5 and recording of [the child’s] interrogation reveal that he had no difficulty 6 comprehending the questions that were asked of him or effectively communicating his 7 responses. On this record, we fail to see any indication that [the child’s] language 8 abilities posed any obstacle to his understanding of his rights or the consequences of 9 waiving them.”). Accordingly, permitting the State to show the jury the first eleven 10 minutes of the video did not violate Defendant’s Miranda rights.

11 E. The District Court Did Not Abuse Its Discretion When It Denied 12 Defendant’s Motion To Change Venue

13 {29} Defendant next argues that the district court erred when it denied his motion to 14 change venue. We review the denial of a motion to change venue for an abuse of 15 discretion. State v. Rushing, 1973-NMSC-092, ¶ 31, 85 N.M. 540, 514 P.2d 297. “A 16 [district] court abuses its discretion when a ruling is clearly against the logic and effect 17 of the facts and circumstances of the case.” State v. Lasner, 2000-NMSC-038, ¶ 16, 18 129 N.M. 806, 14 P.3d 1282 (internal quotation marks and citation omitted). 19 {30} A district court has discretion to change venue based on a showing of either

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1 presumed prejudice or actual prejudice to a party. State v. House, 1999-NMSC-014, 2 ¶¶ 45, 47, 127 N.M. 151, 978 P.2d 967. Presumed prejudice arises when evidence 3 shows that the community is so saturated with inflammatory publicity about the crime 4 that it must be presumed that the trial proceedings are tainted. Id. ¶ 46. Actual 5 prejudice must be established by questioning potential jurors during voir dire to 6 determine whether there is such widespread and fixed prejudice within the jury pool 7 that a fair trial in that venue would be impossible. Id. By proceeding to voir dire, a 8 district court has implicitly rejected arguments favoring presumed prejudice. See 9 State v. Barrera, 2001-NMSC-014, ¶ 16, 130 N.M. 227, 22 P.3d 1177. We will affirm 10 a district court when its “venue determination is supported by substantial evidence in 11 the record.” House, 1999-NMSC-014, ¶ 32. 12 {31} We disagree that the district court abused its discretion in this case. Defendant 13 filed a motion to change venue approximately one year before trial. As the only 14 support for the motion, Defendant alleged that he would not be able to receive a fair 15 trial due to the parties having “extensive and overwhelming contacts” in the 16 community. The State argued in response that Defendant had failed to include an 17 affidavit with his motion or to provide any other evidence to meet his burden of 18 proving that a fair trial in the district would be a practical impossibility. The district

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1 court later held a hearing and denied Defendant’s motion, concluding that he had not 2 shown by clear and convincing evidence that he would be unable to receive a fair trial 3 in Roosevelt County. Given that Defendant offered no evidence to support his 4 motion, we hold that the district court did not abuse its discretion by denying the 5 motion. Cf. State v. Wynne, 1988-NMCA-106, ¶ 4, 108 N.M. 134, 767 P.2d 373 6 (holding that the district court did not abuse its discretion when it denied an oral 7 motion to change venue that was based only on the “[m]ere arguments of counsel, 8 unsupported by evidence”). 9 {32} We also note that the record does not include evidence of actual prejudice in 10 this case. The district court questioned the jury pool at voir dire about whether any 11 of the potential jurors had prior knowledge of the case or would be unable to be fair 12 and impartial. Fourteen of the eighty-seven members of the jury pool responded that 13 they had heard something about the case. However, as this Court recognized in 14 Barrera, “Exposure of venire members to publicity about a case by itself does not 15 establish prejudice or create a presumption of prejudice.” 2001-NMSC-014, ¶ 18 16 (internal quotation marks and citation omitted). The record confirms that only one of 17 these individuals was selected to the jury, and only after she was questioned in 18 chambers about her ability to be fair and impartial. In short, nothing in the record

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1 suggests that Defendant was unable to obtain a fair trial or that the district court 2 abused its discretion in denying the motion to change venue. 3 F. Defendant Did Not Receive Ineffective Assistance of Counsel 4 {33} Defendant next argues that he received ineffective assistance of counsel during 5 his trial based on two theories. First, Defendant argues that defense counsel failed to 6 question potential jurors during voir dire about their exposure to press coverage of the 7 shootings and the trial. Second, Defendant argues that defense counsel should not 8 have been permitted to represent Defendant in this matter due to a conflict of interest. 9 To establish a prima facie claim of ineffective assistance of counsel, Defendant must 10 show (1) that defense counsel’s performance was deficient and (2) that the deficient 11 performance prejudiced the defense. See State v. Rivas, 2017-NMSC-022, ¶ 23, 398 12 P.3d 299. We will not find that defense counsel’s performance was deficient if it can 13 be viewed as a “plausible or rational strategy or tactic.” Id. We review a claim of 14 ineffective assistance of counsel de novo. Id.

15 1. Defense Counsel Did Not Fail To Question Jurors About Their Media 16 Exposure

17 {34} Defendant first argues that defense counsel was ineffective by failing to 18 question potential jurors about their media exposure during voir dire. This argument 19 is not supported by the record and therefore lacks merit. As previously noted, the

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1 district court asked the entire panel of prospective jurors if they had seen or heard 2 anything about the case, including from media coverage. Fourteen panel members 3 answered affirmatively by raising their hands. Of those fourteen individuals, five 4 were struck for cause without further questioning, four were struck after being 5 questioned about their knowledge of the case, and one was seated on the jury after she 6 gave assurances that she could be fair and impartial despite having read about the case 7 in the newspaper. The remaining four panel members who raised their hands were not 8 interviewed because the jury was selected before their numbers were called. 9 {35} We therefore disagree as a factual matter that defense counsel failed to question 10 potential jurors about whether they had been exposed to media coverage. To the 11 contrary, defense counsel ensured that no member of the panel who indicated having 12 knowledge about the case was selected to the jury without confirming that he or she 13 could be fair and impartial. Nothing more was required. Cf. State v. Santillanes, 14 2000-NMCA-017, ¶ 22, 128 N.M. 752, 998 P.2d 1203 (holding that counsel was not 15 ineffective for failing to move a second time for a change of venue during voir dire 16 when prospective jurors were questioned about their ability to be impartial and 17 “[t]hose who indicated they had prejudged the case were excused for cause”), rev’d 18 on other grounds, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456. Because defense

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1 counsel’s performance was not deficient, Defendant’s ineffective assistance of counsel 2 claim fails. See, e.g., State v. Reyes, 2002-NMSC-024, ¶ 48, 132 N.M. 576, 52 P.3d 3 948 (“Failure to prove either prong of the test defeats a claim of ineffective assistance 4 of counsel.”). 5 2. Defense Counsel Did Not Have an Actual Conflict of Interest in This Case 6 {36} Defendant next argues that defense counsel was constitutionally ineffective 7 because he had a conflict of interest and therefore should not have been permitted to 8 represent Defendant in this case. We previously have recognized that “prejudice is 9 presumed when counsel is burdened by an actual conflict of interest.” Rael v. Blair, 10 2007-NMSC-006, ¶ 11, 141 N.M. 232, 153 P.3d 657 (alteration omitted) (quoting 11 Strickland v. Washington, 466 U.S. 668, 692 (1984)). To prevail on such a claim, “A 12 defendant must show that counsel, ‘actively represented conflicting interests and that 13 an actual conflict of interest adversely affected his lawyer’s performance.’” Rael, 14 2007-NMSC-006, ¶ 11, (quoting Strickland, 446 U.S. at 692) (internal quotation 15 marks and citation omitted). “[T]o invoke such a presumption of prejudice, there must 16 be an actual, active conflict that adversely affects counsel’s trial performance; the 17 mere possibility of a conflict is insufficient.” State v. Martinez, 2001-NMCA-059, ¶ 18 24, 130 N.M. 744, 31 P.3d 1018.

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1 {37} Defendant has not shown, nor even argued, that defense counsel had an actual, 2 active conflict in this case that adversely affected his performance at trial. Instead, 3 Defendant effectively argues that defense counsel had a per se conflict because of his 4 role as the former Ninth Judicial district attorney from 1990 to 2002, a period that 5 included the time of Reynaldo’s death and the unsuccessful prosecution of Lolo for 6 Reynaldo’s murder. Defendant cites no authority recognizing a claim based on a per 7 se conflict of interest, rather than an actual conflict, and we therefore need not 8 consider this issue any further. See, e.g., State v. Clifford, 1994-NMSC-048, ¶ 19, 117 9 N.M. 508, 873 P.2d 254 (“We remind counsel that we are not required to do their 10 research, and that this Court will not review issues raised in appellate briefs that are 11 unsupported by cited authority.” (citations omitted)). 12 {38} To avoid this issue coming before us in a post-conviction proceeding, however, 13 we observe that the record in this case strongly suggests that defense counsel’s role 14 as the former district attorney did not pose an actual, active conflict in this case. Early 15 in defense counsel’s representation of Defendant, the State moved to disqualify him 16 under Rule 16-111(A)(2) NMRA because of his role as the former district attorney. 17 See id. (“[A] lawyer who has formerly served as a public officer or employee of the 18 government . . . shall not otherwise represent a client in connection with a matter in

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1 which the lawyer participated personally and substantially as a public officer or 2 employee . . . .”). In response, defense counsel flatly denied having “anything to do 3 with this case, this investigation” or with Lolo’s prosecution, all of which would have 4 been overseen by the deputy district attorney who “was in charge of Roosevelt 5 County.” The State offered no evidence to the contrary. 6 {39} Additionally, Defendant informed the district court that he wanted defense 7 counsel to represent him and later filed a written, signed statement confirming that he 8 understood defense counsel’s history, that he understood his right to have another 9 lawyer appointed to represent him, and that he waived any conflict. The district court 10 denied the State’s motion, finding that the State had not shown that defense counsel 11 had participated “personally nor substantially” in the matter and that Defendant, 12 having waived any conflict, should be represented by counsel of his choice. Under 13 these circumstances, we doubt that defense counsel’s role as the former district 14 attorney, on its own, posed an “actual, active conflict,” much less a conflict that 15 “adversely affect[ed his] trial performance.” Martinez, 2001-NMCA-059, ¶ 24. 16 G. There Was No Cumulative Error in This Case 17 {40} For his last argument, Defendant contends that his conviction must be 18 overturned due to cumulative error. “The doctrine of cumulative error applies when

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1 multiple errors, which by themselves do not constitute reversible error, are so serious 2 in the aggregate that they cumulatively deprive the defendant of a fair trial.” State v. 3 Roybal, 2002-NMSC-027, ¶ 33, 132 N.M. 657, 54 P.3d 61. Because we have 4 determined that no error occurred, the doctrine of cumulative error is not implicated. 5 See State v. Samora, 2013-NMSC-038, ¶ 28, 307 P.3d 328 (“Where there is no error 6 to accumulate, there can be no cumulative error.” (internal quotation marks, citation, 7 and alteration omitted)). 8 III. CONCLUSION 9 {41} For the reasons discussed above, Defendant’s convictions are affirmed.

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1 {42} IT IS SO ORDERED.

2 ___________________________________ 3 PETRA JIMENEZ MAES, Justice

4 WE CONCUR:

5 ___________________________________ 6 JUDITH K. NAKAMURA, Chief Justice

7 ___________________________________ 8 CHARLES W. DANIELS, Justice

9 ___________________________________ 10 BARBARA J. VIGIL, Justice

11 ___________________________________ 12 GARY L. CLINGMAN, Justice