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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. A-1-CA-37010 5 BRADFORD PARKER, 6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 John A. Dean, Jr., District Judge
9 Hector H. Balderas, Attorney General 10 Santa Fe, NM
11 for Appellee
12 Law Offices of Adrianne R. Turner 13 Adrianne R. Turner 14 Albuquerque, NM
15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Judge. 18 {1} Defendant appealed following his conviction for CSCM. We issued a notice 19 of proposed summary disposition in which we proposed to uphold the conviction.
1 Defendant has filed a memorandum in opposition. After due consideration, we remain 2 unpersuaded by the assertions of error. We therefore affirm. 3 {2} The pertinent background information has previously been set forth. We will 4 avoid undue reiteration here and focus instead on the content of the memorandum in 5 opposition. 6 {3} First, Defendant renews his argument that the district court erred in 7 disqualifying his attorney, based upon a conflict of interest. [MIO 8-15] In this case, 8 the question of disqualification arose after it came to the State’s attention that the firm 9 representing Defendant had previously been retained by the mother of the victim. A 10 hearing was conducted, at which numerous witnesses testified. Thereafter, the district 11 court entered its disqualification order, which clearly sets forth the factual and legal 12 basis for its decision. [RP 144-49] 13 {4} In his memorandum in opposition Defendant protests that the attorneys did not 14 undertake to actively represent the mother of the victim. [MIO 3-4, 10] However, the 15 evidence before the district court, including the letter issued by the attorney indicating 16 that she had been engaged to represent the victim’s mother, as well as the mother’s 17 stated belief that it was her understanding that the attorneys represented her, [MIO 4- 18 5, 10] supplied ample support for the district court’s determination. And although that 19 representation may have concluded, the subject of the original representation of the 20 victim’s mother (i.e., a civil action arising out of Defendant’s sexual abuse of the
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1 victim) was substantially related to the subject of the subsequent representation of 2 Defendant (i.e., the criminal case arising out of Defendant’s sexual abuse of the 3 victim), and their interests were undeniably materially adverse. The district court 4 properly concluded that this constituted a prohibited conflict, requiring 5 disqualification. See Rule 16-109(A) NMRA (“A lawyer who has formerly 6 represented a client in a matter shall not thereafter represent another person in the 7 same or a substantially related matter in which that person’s interests are materially 8 adverse to the interests of the former client unless the former client gives informed 9 consent, confirmed in writing.”); Rule 16-116(A)(1) NMRA (providing for mandatory 10 disqualification where the representation will result in violation of the Rules of 11 Professional Conduct). 12 {5} In his memorandum in opposition Defendant argues that the attorney who 13 undertook the original representation of the victim’s mother did not actually obtain 14 confidential information, or pass that on to the additional attorneys who subsequently 15 joined in the criminal defense team. [MIO 9-10] However, this is not the nature of the 16 inquiry. See Living Cross Ambulance Serv., Inc. v. N.M. Pub. Regulation Comm’n, 17 2014-NMSC-036, ¶ 17, 338 P.3d 1258 (explaining that in this context, “[t]he court 18 need not inquire into whether the confidential information was actually revealed or 19 whether the attorney would be likely to use the information to the disadvantage of the 20 former client” (internal quotation marks and citation omitted)). Rule 16-109 requires
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1 disqualification not only when confidential information has actually been disclosed, 2 but also to situations in which there is an appearance that confidential information 3 might have been given to the attorney in the prior representation. Living Cross, 2014- 4 NMSC-036, ¶ 16; see also State v. Barnett, 1998-NMCA-105, ¶ 18, 125 N.M. 739, 5 965 P.2d 323 (“[T]he determination of whether there is a substantial relationship turns 6 on the possibility, or appearance thereof, that confidential information might have 7 been given to the attorney in relation to the subsequent matter in which 8 disqualification is sought. The rule does not necessarily involve any inquiry into the 9 imponderables involved in the degree of relationship between the two matters, but 10 instead involves the realistic appraisal of the possibility that confidences had been 11 disclosed in the one matter which will be harmful to the client in the other. The effect 12 of the rule, therefore, is to restrict the inquiry to the possibility of disclosure and not 13 whether actual confidences were disclosed.” (alteration, internal quotation marks, and 14 citation omitted)). In this case, the interaction between the attorney and the victim’s 15 mother gave rise to such an appearance. 16 {6} Defendant asserts that the disqualification should have been limited to the 17 attorneys who are members of the firm that represented the victim’s mother. [MIO 11- 18 14] However, in light of the co-counsel relationship, the presumption that confidences 19 were divulged, and the underlying policy concerns, we conclude that the district court 20 acted within its discretion in disqualifying all of the attorneys on the defense team. See
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1 generally Rule 16-110(A) NMRA (providing that the conflicts of interest of a single 2 attorney are imputed to the entire firm); Living Cross, 2014-NMSC-036, ¶ 17 3 (adopting an irrebuttable presumption that a former client revealed facts requiring 4 disqualification); Roy D. Mercer, LLC v. Reynolds, 2013-NMSC-002, ¶¶ 14, 17, 292 5 P.3d 466 (explaining that “[c]lients must be secure in their understanding that 6 attorneys will maintain their confidences, even after the termination of an 7 attorney-client relationship[,]” and “each lawyer is vicariously bound by the 8 obligation of loyalty owed by each lawyer with whom the lawyer is associated” 9 (internal quotation marks and citation omitted)); State v. Gonzales, 2005-NMSC-025, 10 ¶ 31, 138 N.M. 271, 119 P.3d 151 (“In considering vicarious disqualification, a court 11 should determine whether a reasonable person standing in the shoes of the defendant 12 should be satisfied that his or her interests will not be compromised.” (internal 13 quotation marks and citation omitted)); Barnett, 1998-NMCA-105, ¶ 19 (“[A]ssurance 14 of confidentiality and efficacy of representation are necessary to maintain public trust 15 in the integrity of the judicial process.”). We therefore reject Defendant’s first 16 assertion of error. 17 {7} Second, Defendant continues to argue that the district court erred in denying his 18 motion for continuance. [MIO 15-18] We remain unpersuaded. As we previously 19 observed, [CN 3-4] the record before us supplies no indication as to the length of the 20 requested delay, and we cannot determine whether the delay would have accomplished
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1 Defendant’s objective. Defendant does not dispute that four prior continuances had 2 been granted: three at Defendant’s request, and one for Defendant’s benefit. Nor does 3 Defendant dispute that the request was made on the day of trial, at great inconvenience 4 to the parties and the district court. See State v. Gonzales, 2017-NMCA-080, ¶ 36, 406 5 P.3d 534 (“[W]e presume resetting the trial date on the day trial is supposed to begin 6 is inconvenient for the parties and for the court.”). Although Defendant urges that the 7 stated motive was legitimate and that he was not at fault for failing to identify and 8 pursue the issue prior to trial, [MIO 16, 17] we find no indication that the continuance 9 would have benefitted the defense in any concrete way. On balance, we perceive no 10 abuse of discretion. See id. ¶¶ 34-41 (upholding the denial of a motion for continuance 11 made on the day of trial, where continuances had already been granted, and where the 12 defendant failed to establish prejudice). 13 {8} Third, Defendant renews his claim of ineffective assistance of counsel. [MIO 14 18-20] Defendant bases his claim on counsel’s failure to conduct interviews, failure 15 to object to the introduction of a statement, and failure to seek an expert to testify at 16 trial. [MIO 19-20] However, we find no indication that further interviews would have 17 been helpful to Defendant’s case. See, e.g., State v. Ortega, 2014-NMSC-017, ¶¶ 54- 18 60, 327 P.3d 1076 (rejecting a claim of ineffective assistance of counsel based upon 19 failure to interview witnesses for the state, where the record contained nothing to 20 suggest that such interviews would have produced anything of assistance to the
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1 defense). Trial counsel’s failure to object to the introduction of Defendant’s statement 2 also appears to have been reasonable, given that Defendant admitted he was 3 Mirandized, and Defendant’s more recent suggestion that his “cognitive difficulties” 4 might have diminished the voluntariness of his statement [MIO 19-20] is not 5 adequately developed on the record before us. See generally State v. Telles, 6 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (“This Court cannot evaluate 7 matters outside of the record.”). We are similarly unpersuaded that the failure to retain 8 an expert amounted to ineffective assistance of counsel. “[T]his Court has expressly 9 rejected the contention that the failure to introduce the testimony of an expert witness 10 constitutes ineffective assistance of counsel per se,” Lytle v. Jordan, 11 2001-NMSC-016, ¶ 44, 130 N.M. 198, 22 P.3d 666, and in this case, trial counsel may 12 have concluded that expert testimony would not have been beneficial to the defense. 13 See id. ¶ 47 (arriving at a similar conclusion). See generally State v. Nguyen, 14 2008-NMCA-073, ¶ 30, 144 N.M. 197, 185 P.3d 368 (“It is for defense counsel to 15 assess whether a particular expert’s testimony will be helpful, and . . . we will not 16 second guess counsel’s decision.”). 17 {9} Ultimately, although the record is insufficient to establish a prima facie case of 18 ineffective assistance of counsel on direct appeal, we note that Defendant is not 19 precluded from pursuing this claim in a separate habeas proceeding. See State v. 20 Arrendondo, 2012-NMSC-013, ¶¶ 42-44, 278 P.3d 517 (noting that although there
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1 was not enough evidence to properly address the defendant’s ineffective assistance of 2 counsel claim on direct appeal, he remained at liberty to pursue habeas corpus 3 proceedings, where he could develop the record). 4 {10} Fourth and finally, Defendant renews his claim of cumulative error. [MIO 20- 5 21] In light of our rejection of Defendant’s various individual assertions of error, there 6 is no cumulative error. See State v. Bent, 2013-NMCA-108, ¶ 37, 328 P.3d 677 7 (“Because there was no individual error, we find no cumulative error.”). 8 {11} Accordingly, for the reasons stated in the notice of proposed summary 9 disposition and above, we affirm. 10 {12} IT IS SO ORDERED.
11 __________________________________ 12 LINDA M. VANZI, Judge
13 WE CONCUR:
14 _________________________________ 15 J. MILES HANISEE, Judge
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1 _________________________________ 2 KRISTINA BOGARDUS, Judge