State v. Peralta

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 28,115 10 RUBEN PERALTA, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 13 Stephen Pfeffer, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM 16 M. Victoria Wilson, Assistant Attorney General 17 Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender 20 Carlos Ruiz de la Torre, Assistant Appellate Defender 21 Santa Fe, NM

22 for Appellant 1 MEMORANDUM OPINION 2 ROBLES, Judge. 3 Ruben Peralta (Defendant) appeals his convictions of second-degree murder, 4 contrary to NMSA 1978, Section 30-2-1(B) (1994); tampering with evidence, contrary 5 to NMSA 1978, Section 30-22-5 (2003); and intimidation of a witness, contrary to 6 NMSA 1978, Section 30-24-3(A)(3) (1997). He assigns six claims of error with sub- 7 parts, which he avers should result in reversal of his convictions. Defendant argues 8 that (1) the district court erred in admitting his post-arrest statements in violation of 9 his rights under the Vienna Convention on Consular Relations (VCCR); (2) it was 10 error to admit evidence of his prior bad acts of domestic violence; (3) he was entitled 11 to jury instructions on self-defense and voluntary manslaughter; (4) the intimidation 12 of a witness charge was based on an overly broad date range; (5) his conviction for 13 second-degree murder lacked sufficient evidence; and (6) he received ineffective 14 assistance of counsel at trial. e affirm on all claims. 15 I. BACKGROUND 16 On September 18, 2006, New Mexico State Police Agent Mitchell Maestas 17 received information that a man by the name of Donald Moe was claiming that the 18 voice of God was telling him the location of a human body and telling him to call the 19 police. A subsequent law enforcement investigation on Moe’s mother’s property did,

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1 in fact, reveal the body of an unknown victim. The body was located in what had 2 been a hole dug on the property for drainage of a washing machine. Moe testified 3 that, sometime in 2002, Darla Trujillo contacted him and his wife and told them that 4 there had been an incident on the property. Trujillo, a friend of Moe’s daughter, 5 Angela, occasionally stayed on the property in question. In 2002, Defendant and 6 Angela, who have four children together, were living on the property in one of two 7 mobile homes. Also staying on the property, either temporarily or sporadically, was 8 an individual by the name of Chino and another man named Rigo Camacho, who was 9 Trujillo’s boyfriend. On the day after hearing from Trujillo in 2002, Moe and his wife 10 went to the property and looked for a dead body. None was found. Four years later, 11 as Moe was walking to his mother’s house, “a voice” told him to go to his neighbor’s 12 house, ask to borrow the phone, call the police, and tell them that there was a body in 13 the drainage hole. Moe testified that when he and his wife searched the property in 14 2002, he simply did not look in the drainage hole. 15 As a result of Agent Maestas’s investigation, Defendant was arrested in Kansas 16 where he was residing with Angela and their children. New Mexico authorities 17 interviewed Defendant in English and Spanish after informing him of his Miranda 18 rights and obtaining a signed waiver. Defendant initially denied having any 19 knowledge about the body. However, as the interview progressed, Defendant

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1 eventually stated that he and Camacho helped hide the body in the hole and that Chino 2 was the one responsible for the murder. Contrary to Defendant’s story, Angela made 3 statements to investigators that Defendant and Camacho had participated in the killing 4 with Chino. Subsequently, Defendant and Camacho were tried together and charged 5 with conspiracy, tampering with evidence, intimidation of a witness, and second- 6 degree murder. The conspiracy charges were dismissed by directed verdict and 7 Camacho was convicted only of tampering with evidence. Further facts relevant to 8 this Opinion will be developed as needed. 9 II. DISCUSSION 10 Defendant’s appeal raises six issues with sub-parts that we address in turn. 11 Because we conclude that there was no error below, we affirm Defendant’s 12 convictions. 13 A. Post-Arrest Statements 14 Defendant, a citizen of Honduras, had been livingin the United States for 15 approximately sixteen years. His co-defendant, Camacho, is a citizen of Mexico. On 16 appeal, Defendant asserts that the district court erred in admitting his post-arrest 17 statements to the authorities in violation of the VCCR and, in the alternative, the jury 18 should have been instructed that his statements were obtained in violation of the 19 VCCR. Additionally, Defendant advocates for a review of the voluntariness of his

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1 statements under the standard applied to children and argues that his statements should 2 be suppressed under the Treaty of Guadalupe Hidalgo. We address each of these 3 arguments. 4 Review of suppression motions requires an examination of the application of 5 the law to the facts, which are viewed in a light most favorable to the prevailing party. 6 State v. Juarez, 120 N.M. 499, 502, 903 P.2d 241, 244 (Ct. App. 1995). Factual 7 determinations are reviewed under a substantial evidence standard while legal 8 conclusions are reviewed de novo. State v. Neal, 2007-NMSC-043, ¶ 15, 142 N.M. 9 176, 164 P.3d 57. Claims of error that are based on the district court’s failure to give 10 a jury instruction present a mixed question of fact and law. State v. Ramirez, 2008- 11 NMCA-165, ¶ 4, 145 N.M. 367, 198 P.3d 866, cert. denied, 2008-NMCERT-011, 145 12 N.M. 531, 202 P.3d 124. 13 1. The VCCR 14 “The VCCR is a multilateral treaty signed by more than 100 nations.” State 15 v. Martinez-Rodriguez, 2001-NMSC-029, ¶ 7, 131 N.M. 47, 33 P.3d 267, abrogated 16 on other grounds by State v. Forbes, 2005-NMSC-027, 138 N.M. 264, 119 P.3d 144. 17 Ratified by the United States in 1969, it contains seventy-nine articles that concern 18 consular officers and their rights, functions, privileges, and immunities. Id. 19 Defendant argues, and the State admits, that he was not advised that he could confer

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1 with consulate officials after his arrest as provided by Article 36 of the VCCR. See 2 VCCR, art. 36(1)(b), Apr. 24, 1963, 21 U.S.T. 77, 100-01 (“[I]f he so requests, the 3 competent authorities of the receiving [s]tate shall, without delay, inform the consular 4 post of the sending [s]tate if, within its consular district, a national of that [s]tate is 5 arrested[, t]he said authorities shall inform the person concerned without delay of his 6 rights under this sub-paragraph[.]”); art. 36(1)(c) (“[C]onsular officers shall have the 7 right to visit a national of the sending State who is in prison, custody or detention, to 8 converse and correspond with him and to arrange for his legal representation.”). 9 Before trial, Defendant filed a motion for suppression, arguing that because his 10 interrogating officers did not advise him of his right to confer with a consulate 11 official, he was entitled to suppression of his statements. The motion was denied. 12 On appeal, Defendant concedes that the VCCR does not mandate suppression 13 or any other specific remedy, and implementation of the treaty is left to domestic law. 14 See VCCR, art. 36(2) (“The rights referred to in . . . this Article shall be exercised in 15 conformity with the laws and regulations of the receiving [s]tate.”). The United States 16 Supreme Court has held that although our nation is a signatory to the treaty, 17 application of the exclusionary rule for violation of Article 36 would be an 18 extraordinary remedy. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 346-48 (2006). 19 As that Court noted, a failure to inform a defendant of his Article 36 right to confer

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1 with his consulate is unlikely to produce a coerced or unreliable confession that would 2 require suppression under the exclusionary rule. Id. at 349. However, a defendant can 3 raise an Article 36 violation “as part of a broader challenge to the voluntariness of his 4 statements to police.” Id. at 350. 5 On appeal, Defendant has changed his argument from one that advocates for 6 suppression to be considered as a remedy for failure to advise of the VCCR rights to 7 one that argues that the district court should have considered Defendant’s claim within 8 the broader challenge of the voluntariness of his statements. We observe that 9 Defendant never challenged the voluntariness of his statements. While it is true that 10 Defendant requested a hearing on the suppression of his statements, a request for a 11 hearing is not an allegation that his statements were coerced or somehow the product 12 of an involuntary action. 13 In New Mexico, the State has the burden to make a prima facie showing of 14 voluntariness, which requires an establishment by preponderance of the evidence that 15 a confession was not extracted “by fear, coercion, hope of reward or any other 16 improper inducement.” State v. Tindle, 104 N.M. 195, 198, 718 P.2d 705, 708 (Ct. 17 App. 1986). Nevertheless, the State is only required to demonstrate voluntariness if 18 there is a question of voluntariness. See State v. Soliz, 79 N.M. 263, 265-66, 442 P.2d 19 575, 577-78 (1968) (noting that the state must show voluntariness when the question

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1 is raised by the defense at the time of the admission of the confession). Defendant’s 2 argument below was based on the authorities’ failure to inform him of his right under 3 the VCCR to communicate with the Honduran consulate. Because we do not view a 4 general request for a suppression hearing as being a specific challenge to the 5 voluntariness of statements, we conclude that this issue was not preserved. See 6 Kilgore v. Fuji Heavy Indus. Ltd., 2009-NMCA-078, ¶ 50, 146 N.M. 698, 213 P.3d 7 1127 (“The primary purposes for the preservation rule are[] (1) to specifically alert the 8 district court to a claim of error so that any mistake can be corrected at that time, (2) 9 to allow the opposing party a fair opportunity to respond to the claim of error and to 10 show why the district court should rule against that claim, and (3) to create a record 11 sufficient to allow this Court to make an informed decision regarding the contested 12 issue.”), cert. granted, 2009-NMCERT-007, 147 N.M. 363, 223 P.3d 360. 13 2. Jury Instruction on the VCCR 14 Defendant states that the district court should have granted his request for a jury 15 instruction that his post-arrest statements were obtained in violation of the VCCR. He 16 argues that allowance of such an instruction would have informed the jury and 17 allowed them to give his statements the “appropriate weight” during their 18 deliberations. Citing to Sanchez-Llamas, Defendant suggests that the United States

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1 Supreme Court envisioned jury instructions as an appropriate remedy that is shy of 2 suppression. 3 In Defendant’s pretrial motion, he argued that, as an alternative to suppression, 4 “[a]nother way of enforcing [the VCCR] would be to allow [Defendant] to argue [that 5 his] statements go to the weight the [j]ury may assign to the [s]tatements after 6 informing the [j]ury that the [s]tatements were obtained in violation of [D]efendant’s 7 right to speak to his consulate or to be informed by the [p]olice of his right under the 8 VCCR.” 9 “Generally, to preserve error on a trial court’s refusal to give a tendered 10 instruction, the [a]ppellant must tender a legally correct statement of the law.” State 11 v. Jernigan, 2006-NMSC-003, ¶ 10, 139 N.M. 1, 127 P.3d 537 (filed 2005). 12 “However, if the record reflects that the judge clearly understood the type of 13 instruction the [d]efendant wanted and understood the tendered instruction needed to 14 be modified to correctly state the law, then the issue is deemed preserved for appellate 15 review.” Id. From the record, it is not clear to this Court whether Defendant was 16 requesting a jury instruction or if he was requesting permission to argue the weight 17 of Defendant’s statements. See UJI 14-5020 NMRA (“You alone are the judges of the 18 credibility of the witnesses and the weight to be given to the testimony of each of 19 them.”). Nor is it clear that the district court clearly understood the type of instruction

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1 Defendant wanted tendered, if any at all. Cf. State v. Munoz, 2006- NMSC-005, ¶ 12- 2 13, 139 N.M. 106, 129 P.3d 142 (holding that the defendant’s objection was preserved 3 when he submitted a definition to the court and objected to the proposed instructions 4 that were ultimately used). Defendant’s motion requested that he be allowed to argue 5 to the jury the weight that it may assign his post-arrest statements. This is not a 6 request for a jury instruction, nor does it substitute for tendering a jury instruction. 7 The record does not reveal that the district court understood this as a request for a jury 8 instruction, and the issue was not revisited after the close of evidence at the jury 9 instruction conference. We therefore conclude that this issue was not preserved. 10 3. Voluntariness Determined by Juvenile Standards 11 It is Defendant’s contention that because he is a foreigner, a heightened level 12 of protection should have been triggered when the district court evaluated the 13 voluntariness of his statements, and there should have been a presumption that any 14 statements made or rights waived were not done so knowingly, intelligently, or 15 voluntarily. As we have already noted, Defendant never argued below that his 16 statements were involuntarily given, and there has been no demonstration that would 17 indicate that the facts or circumstances surrounding his statements were coercive. 18 Additionally, this issue has been addressed by our Supreme Court. See State v. 19 Barrera, 2001-NMSC-014, ¶ 24, 130 N.M. 227, 22 P.3d 1177. In that case, the Court

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1 held that the defendant’s assertion that foreign citizens are entitled to the enhanced 2 standard of a juvenile to measure voluntariness of their statements was not supported 3 by case law and was without merit. Id. Likewise, Defendant cites no authority that 4 supports his assertion that an adult foreign national is entitled to greater protection 5 than other adults in the criminal justice system. This issue was not preserved, nor 6 does the contention have merit. 7 4. The Treaty of Guadalupe Hidalgo 8 In his brief, Defendant argues that the admission of his post-arrest statements 9 violated the rights of his co-defendant, Camacho, a Mexican citizen, under the Treaty 10 of Guadalupe Hidalgo and, therefore, should have been suppressed in the joint trial. 11 Essentially, Defendant is advocating for the rights of his co-defendant and arguing 12 that the violation of Camacho’s rights led to the admission of Defendant’s statements 13 which, in turn, damaged Defendant. We understand Defendant to imply that he would 14 have benefitted from the preservation of his co-defendant’s rights. Before we examine 15 the merits of this claim, we inquire as to how Defendant can assert the rights of his co- 16 defendant. 17 The joint pretrial motion, which both co-defendants submitted, mentions the 18 Treaty of Guadalupe Hidalgo. However, the section of the motion that Defendant 19 cites to in his brief falls under the following sub-heading:

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1 RIGO CAMACHO, A CITIZEN OF MEXICO, ASSERTS THAT 2 ARTICLE II, SECTION 5 OF THE NEW MEXICO BILL OF RIGHTS 3 DICTATES THAT THIS COURT ACTUALLY ENFORCE THE 4 [VCCR] IF A STATEMENT OBTAINED BY THE STATE IN 5 VIOLATION OF [THE VCCR] IS USED AGAINST A CITIZEN OF 6 MEXICO IN A NEW MEXICO COURT PROCEEDING.

7 (Emphasis omitted.) Thus, the entire section refers to his co-defendant’s claim that 8 under the Treaty of Guadalupe Hidalgo, the district court “is obliged to suppress any 9 statement used against . . . Camacho,” not Defendant. (Emphasis added.) Although 10 Defendant was a party to this joint motion, this section of the motion specifically 11 refers to citizens of Mexico to which the Treaty of Guadalupe Hidalgo applies and to 12 Camacho. 13 Second, Defendant has not explained how he has standing to make this claim. 14 “Generally, one may not assert the constitutional rights of another.” Gunaji v. Macias, 15 2001-NMSC-028, ¶ 20, 130 N.M. 734, 31 P.3d 1008. However, this maxim is subject 16 to exception when considered by “countervailing policies,” such as situations where 17 the rights of an individual, who is not a party to the action, would be impaired and that 18 third person has no effective way to preserve those rights for himself. Id. In this case, 19 Camacho was capable of preserving this issue for himself. He is not a party to this 20 appeal, and this situation does not involve him appealing his own conviction. In light 21 of Defendant’s failure to fully develop how he may assert the rights of another and our 22 review of the pretrial motion, we will not address this issue further.

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1 B. Prior Bad Acts 2 Defendant argues for a new trial because testimony was developed that tended 3 to show he had committed acts of domestic violence against Moe and Angela. We 4 examine the situations surrounding both witnesses. “We review the admission of 5 evidence under an abuse of discretion standard and will not reverse in the absence of 6 a clear abuse.” State v. Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 7 72. 8 1. Donald Moe 9 At trial, Camacho’s counsel suggested, during opening statements, that Moe’s 10 actions were suspicious, and the authorities should have considered him a suspect in 11 the victim’s death. Defendant’s counsel did not make an opening statement. During 12 Moe’s testimony, the prosecutor inquired about how Defendant came to be living with 13 Angela on the property. Moe spontaneously responded that when Defendant began 14 sleeping with Angela, Moe did not approve. Further, Moe tried to “chase” Defendant, 15 but instead was severely beaten by him. Defense counsel moved for a mistrial at a 16 bench conference. The prosecutor explained that such testimony was going to be 17 brought out eventually to explain why Moe was afraid of Defendant and did not like 18 him, and why he did not call the police for four years. The district court decided to 19 reserve ruling on the motion, depending on what transpired in further testimony.

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1 Subsequently, after having his memory refreshed, Moe testified that the reason that 2 he did not call the police in 2002 after being told by Trujillo that there was a body on 3 the property was because he was afraid of Defendant. When asked what his basis was 4 for that fear, Moe responded, without objection from defense, that Defendant had 5 severely beaten him in 2001. On cross-examination, defense counsel elicited further 6 testimony from Moe and had him describe in detail the beating that Defendant had 7 inflicted upon him. 8 Defendant maintains that evidence of violence towards Moe was irrelevant and 9 overly prejudicial and, further, the objectionable portions of the testimony were not 10 consistent with any legitimate purpose. We conclude that this issue was not 11 preserved. No ruling on Defendant’s request for a mistrial was given, and Defendant 12 did not renew his objection or his motion for a mistrial. See State v. Varela, 1999- 13 NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (preserving an issue for appeal 14 requires a timely objection that specifically apprises the trial court of the nature of the 15 claimed error and invokes an intelligent ruling thereon). On cross-examination, 16 defense counsel actually developed Moe’s testimony regarding the beating. It would 17 appear that trial counsel’s strategy was to cast doubt on Moe’s credibility, emphasize 18 his bias, and imply that he was a valid suspect in the murder. The record shows that 19 defense counsel pursued lines of questioning that discussed Moe’s mental illness, drug

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1 use, his participation or knowledge regarding drug dealing, whether he had ever 2 stabbed anyone, and why he was not a suspect in the murder. Overall, it appears it 3 was trial counsel’s scheme to develop this testimony and, thus, no renewed objection 4 was made. 5 2. Angela Moe 6 During trial, Angela testified about the night the stabbing took place. She then 7 testified about Defendant’s statements, which she overheard, regarding the murder and 8 the subsequent threats Defendant made to her, stating that he would kill her if she told 9 anyone what she heard. Angela stated that she believed Defendant’s threats because 10 he had hit her in the past, broken her nose and teeth, and threatened to kill her. 11 Defendant did not object to this testimony. 12 On appeal, Defendant insists that this testimony was collateral and irrelevant 13 to the case, and its only purpose was to demonstrate to the jury that Defendant was a 14 bad person with a propensity to commit crimes. We fail to see how this issue was 15 preserved. Defendant’s brief does not cite to where trial counsel objected to this 16 testimony, and we are unable to locate it. See Rule 12-213(A)(4) NMRA (stating that 17 briefs submitted to this Court “shall contain a statement of the applicable standard of 18 review, the contentions of the appellant and a statement explaining how the issue was 19 preserved in the court below, with citations to authorities, record proper, transcript of

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1 proceedings or exhibits relied on” (emphasis added)); State v. Rojo, 1999-NMSC-001, 2 ¶ 44, 126 N.M. 438, 971 P.2d 829 (filed 1998) (holding that appellate courts will not 3 search the record to find whether an issue was preserved where the defendant did not 4 refer the court to appropriate transcript references). The lack of objection below 5 means that the issue was not preserved. 6 C. Jury Instructions 7 After the conclusion of testimony, Defendant requested jury instructions on 8 self-defense and voluntary manslaughter. Both requests were denied. Defendant now 9 appeals the district court’s decision. Review of the denial of a tendered instruction is 10 conducted de novo. State v. Rudolfo, 2008-NMSC-036, ¶ 13, 144 N.M. 305, 187 P.3d 11 170. 12 1. Self-Defense 13 At the jury instruction conference, defense counsel argued that the videotape 14 of Defendant’s post-arrest statements, which was played in totality to the jury at 15 Defendant’s request, contained statements by Defendant that Chino stabbed the victim 16 in self-defense, and then coerced both co-defendants to help him bury the body. 17 Defendant additionally notes that Trujillo testified that, although she did not see 18 anything on the night in question, there was some kind of a fight or disturbance in one 19 of the mobile homes while she and Angela were in the neighboring mobile home. On

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1 appeal, Defendant argues that this “slight evidence” is sufficient to grant the 2 instruction. 3 To be entitled to a self-defense instruction, evidence must be developed at trial 4 that would support the giving of the instruction as to every element of the defense. 5 Id. ¶ 17. This requires a showing in the record that “(1) the defendant was put in fear 6 by an apparent danger of immediate death or great bodily harm; (2) the killing resulted 7 from that fear; and (3) the defendant acted reasonably [in killing the victim].” Id. 8 (internal quotation marks and citation omitted); UJI 14-5183 NMRA. The evidence 9 in the record does not establish the required elements of the defense. As the district 10 court observed below, a post-arrest statement from Defendant that Chino killed in self- 11 defense does not apply to Defendant. The remaining evidence presented at trial 12 showed instead that Defendant had bragged about participating in the killing. As for 13 Trujillo’s testimony about a fight or disturbance in the neighboring mobile home, that 14 argument does not establish fear of immediate danger, reasonableness in killing, or 15 killing in response to that fear. See UJI 14-5183. Trujillo testified that she did not see 16 any of the events occur in the neighboring mobile home and that, after the killing, 17 Camacho merely told her that there had been a fight and a stabbing without any 18 further details about who did what or why. The evidence presented at trial was 19 insufficient to entitle Defendant to a self-defense instruction.

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1 2. Voluntary Manslaughter 2 In his brief, Defendant argues that he was entitled to a voluntary manslaughter 3 instruction because (1) the men involved in the incident had consumed four, thirty 4 packs of beer and had been drinking Bacardi; (2) there was tension and an argument 5 because the victim would not purchase more beer; and (3) something triggered Chino 6 and subsequently Defendant to stab the victim. As an initial matter, this Court is 7 unable to locate testimony in the record that “the men had four 30 packs of beer and 8 Bacardi to drink,” and Defendant does not provide a citation for this contention. 9 Additionally, the State argues that no such testimony about the quantity of alcohol 10 consumed was presented at trial. We additionally note that voluntary intoxication is 11 a defense to a specific intent crime. State v. Nozie, 2009-NMSC-018, ¶ 41, 146 N.M. 12 142, 207 P.3d 1119. Voluntary intoxication will not provide a defense to a general 13 intent crime which requires only a “conscious wrongdoing.” State v. Brown, 14 1996-NMSC-073, ¶ 22, 122 N.M. 724, 931 P.2d 69 (internal quotation marks and 15 citation omitted). New Mexico has consistently held that “specific intent is not 16 required for conviction in second degree murder, thus explaining why voluntary 17 intoxication is no defense to such a charge.” State v. Tapia, 81 N.M. 274, 276, 466 18 P.2d 551, 553 (1970). Therefore, “[i]ntoxication of the defendant at the time of the 19 killing . . . cannot be said to furnish the provocation required to reduce murder in the

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1 second degree to voluntary manslaughter.” State v. Cooley, 19 N.M. 91, 102, 140 P. 2 1111, 1114 (1914). 3 The difference between murder in the second degree and voluntary 4 manslaughter is sufficient provocation. See UJI 14-220 NMRA. Sufficient 5 provocation is defined as:

6 any action, conduct or circumstances which arouse anger, rage, fear, 7 sudden resentment, terror or other extreme emotions. The provocation 8 must be such as would affect the ability to reason and to cause a 9 temporary loss of self control in an ordinary person of average 10 disposition. The “provocation” is not sufficient if an ordinary person 11 would have cooled off before acting.

12 UJI 14-222 NMRA. 13 Angela testified that the men present had an argument about who would buy 14 more beer. However, at the time of the killing, sometime later that evening, she was 15 next door and had no way of knowing what the actual circumstances were. This is 16 insufficient evidence to fall within the definition of “sufficient provocation.” As the 17 district court pointed out, it is purely speculative to state what transpired next door, 18 let alone that there was sufficient provocation. 19 D. Intimidation of a Witness 20 The criminal information filed against Defendant stated that intimidation of a 21 witness occurred between 2002 and 2006. As an unpreserved issue, it is Defendant’s 22 contention that this Court should review for fundamental error the fact that the district

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1 court did not dismiss or conduct “an adequate inquiry into[] the intimidation of a 2 witness charge based on the overbroad . . . date range of between September 2002 and 3 September 2006.” Fundamental error applies “in exceptional circumstances when 4 guilt is so doubtful that it would shock the judicial conscience to allow the conviction 5 to stand.” State v. Baca, 1997-NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, 6 overruled on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 7 210 P.3d 783. 8 Citing to State v. Baldonado, Defendant encourages this Court to analyze the 9 constitutionality of the charging period and determine whether the State could have 10 reasonably provided a greater specificity for times of the alleged intimidation and, if 11 so, whether that failure prejudiced Defendant. 1998-NMCA-040, ¶ 29, 124 N.M. 745, 12 955 P.2d 214. In Baldonado, the defendant was charged with criminal sexual contact 13 of a minor. Id. ¶ 3. The indictment stated that the crimes occurred during a two-year 14 period. Id. ¶ 4. The defendant filed a motion for bill of particulars, requesting more 15 specificity for the approximate time that the alleged criminal acts occurred. Id. This 16 Court noted that the defendant may or may not have had an alibi depending on the 17 time of the alleged offense. Id. ¶¶ 5-6. We concluded that no per se rule based on 18 time of the charging period should be adopted, but instead district courts should look 19 at each situation on a case-by-case basis and conduct their analysis in light of nine,

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1 mutually exclusive factors. Id. ¶¶ 23, 26-28, 30. However, we also stated that the 2 analysis depended upon “the nature of the challenge asserted by the defendant,” 3 implying that the district court’s factual development of the issue should be responsive 4 to the defendant’s challenge. Id. ¶ 28 (internal quotation marks and citation omitted). 5 Sometime later, the Court held that a defendant must preserve a challenge to the 6 reasonableness of the state’s efforts to narrow the time frame for the crimes charged 7 in the indictment. State v. Nichols, 2006-NMCA-017, ¶¶ 26-30, 139 N.M. 72, 128 8 P.3d 500 (filed 2005). One reason for this is that each fact-specific inquiry requires 9 a careful weighing of the evidence within the context of the claimed defense or error, 10 such as the possibility of an alibi. See id. ¶ 30. Without a claim of a plausible defense 11 or a developed record, “it would be inappropriate for us to analyze this issue.” Id. 12 Such is the case here. 13 E. Sufficiency of the Evidence 14 Defendant next argues that there was insufficient evidence to convict him of 15 second-degree murder. He argues that (1) Moe, Angela, and Trujillo were biased and 16 non-credible witnesses; (2) there was no witness to the murder or physical evidence 17 linking Defendant to the murder; and (3) reasonable doubt existed because of a failure 18 to collect evidence. We will address each claim. “In reviewing the sufficiency of the 19 evidence, we must view the evidence in the light most favorable to the guilty verdict,

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1 indulging all reasonable inferences and resolving all conflicts in the evidence in favor 2 of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 3 P.2d 176. 4 Defendant’s first request is for this Court to review the testimony of the 5 witnesses in this case and conclude that because they were biased, their testimony 6 lacked credibility and, therefore, the remaining evidence was insufficient to support 7 a conviction. This is a request that we cannot oblige. Our function is not to reweigh 8 evidence or evaluate the credibility of witnesses. State v. Mora, 1997-NMSC-060, ¶ 9 27, 124 N.M. 346, 950 P.2d 789 (“The reviewing court does not weigh the evidence 10 or substitute its judgment for that of the fact finder as long as there is sufficient 11 evidence to support the verdict.”). It is the role of the jury to judge witnesses, 12 determine their credibility, and assign weight to the evidence. State v. Marquez, 13 2009-NMSC-055, ¶ 17, 147 N.M. 386, 223 P.3d 931. 14 We agree with Defendant that his conviction was based on testimony from 15 witnesses and not from physical evidence linking him to the murder. However, 16 Angela testified that Defendant had told her of his involvement in the murder, and she 17 had overheard Defendant on multiple occasions bragging to other individuals about 18 his role in the murder. Additionally, Defendant’s post-arrest interview was played in 19 its entirety for the jury. Defendant has not provided this Court with a copy of that

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1 evidence, so we can only surmise what Defendant told officers during that interview 2 and what the jury inferred. See Reeves v. Wimberly, 107 N.M. 231, 236, 755 P.2d 75, 3 80 (Ct. App. 1988) (“Upon a doubtful or deficient record, every presumption is 4 indulged in favor of the correctness and regularity of the trial court’s decision, and the 5 appellate court will indulge in reasonable presumptions in support of the order 6 entered.”). However, Defendant does admit in his brief that, at some point during the 7 interview, he admitted to being present on the night of the killing and to helping 8 dispose of the body. Defendant’s own words place him at the scene of the crime. 9 Further analysis on our part, as to whether we believe Defendant or Angela, would 10 surely result in a reweighing of evidence. 11 Finally, Defendant claims that he is entitled to sufficient information to enable 12 him to properly prepare his defense. He argues that because the identity of the victim, 13 believed to be a Mexican citizen, was never discovered, and no date of the incident 14 was accurately pinpointed, the victim’s character and propensity for violence could 15 not be established and, therefore, Defendant was prevented from adequately defending 16 himself. This argument has no merit. A challenge to evidence in support of 17 conviction on sufficiency grounds is unrelated to whether a precise bill of particulars 18 was provided to Defendant. We will, however, discuss this issue.

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1 Defendant states that he was prejudiced by law enforcement’s failure to collect 2 material evidence, and he cites to State v. Ware, 118 N.M. 319, 881 P.2d 679 (1994), 3 for the proposition that failure to collect evidence may amount to suppression of 4 material evidence. In that case, our Supreme Court noted that it would be a potential 5 due process violation if the state failed to collect evidence from a crime scene or 6 provide evidence to a defendant requesting it, or lost the evidence or destroyed it. Id. 7 at 322-23, 881 P.2d at 682-83. The defendant was challenging the manner in which 8 the evidence was collected. Id. at 321, 881 P.2d at 681. The court determined that the 9 defendant must first show that the missing evidence was important to the defense and 10 that the investigating officers acted in bad faith or were negligent in failing to obtain 11 evidence. Id. at 325, 881 P.2d at 685. Defendant does not articulate how any missing 12 evidence would be important to his defense in light of other facts before the jury, nor 13 does he demonstrate how the investigating officers were negligent or acted in bad 14 faith. Without more development, this Court is left to speculate on an issue that was 15 not raised below.

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1 F. Ineffective Assistance of Counsel 2 There is a general presumption that trial counsel provided effective assistance. 3 State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. To establish a 4 claim of ineffective assistance of counsel, the burden is on the defendant to show the 5 counsel’s performance was deficient, and this deficiency prejudiced his defense. State 6 v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61. A defense counsel’s 7 performance is deficient if “representation fell below an objective standard of 8 reasonableness.” Lytle v. Jordan, 2001-NMSC-016, ¶ 26, 130 N.M. 198, 22 P.3d 666) 9 (internal quotation marks and citation omitted). To establish prejudice, the defendant 10 must show that there is “a reasonable probability that, but for counsel’s unprofessional 11 errors, the result of the proceeding would have been different.” State v. Schoonmaker, 12 2008-NMSC-010, ¶ 32, 143 N.M. 373, 176 P.3d 1105 (internal quotation marks and 13 citation omitted).

14 When an ineffective assistance claim is first raised on direct appeal, we 15 evaluate the facts that are part of the record. If facts necessary to a full 16 determination are not part of the record, an ineffective assistance claim 17 is more properly brought through a habeas corpus petition, although an 18 appellate court may remand a case for an evidentiary hearing if the 19 defendant makes a prima facie case of ineffective assistance.

20 Roybal, 2002-NMSC-027, ¶ 19. 21 Defendant makes three claims regarding ineffective assistance of counsel in the 22 context of his attorney failing to file motions. First, he maintains a motion should

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1 have been filed, severing the intimidation of a witness charge from the murder charge. 2 Second, a motion requesting a bill of particulars more narrowly specifying the date 3 range of the intimidation of a witness charge should have been filed. Finally, a motion 4 should have been filed, requesting suppression or admonishment regarding his use of 5 illegal drugs. We do not agree. 6 The State correctly responds that the failure to request severance of the 7 intimidation of a witness charge does not establish ineffective assistance of counsel. 8 Moe’s testimony regarding domestic abuse was admitted to show why the police did 9 not become involved for four years. The State additionally proposes that Defendant’s 10 treatment of Angela’s testimony, regarding Defendant’s domestic abuse, was part of 11 Defendant’s trial strategy to show that both Angela and Moe had a motive to fabricate 12 their testimony about Defendant’s involvement in the murder. This case does appear 13 to have been a credibility contest between Defendant and Angela. Defendant’s own 14 statement to officers placed him at the scene of the murder and made him appear 15 complicit, if not culpable, in hiding the body and tampering with evidence. The 16 question for the jury was whether they believed Angela or whether they believed 17 Defendant. As a question of credibility, we recognize that it was imperative that 18 Defendant challenge Angela’s truthfulness at trial. In closing, defense counsel argued 19 that Angela was biased and hated Defendant because he had beaten her in the past.

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1 In totality, it does appear that trial counsel repeatedly made attempts to demonstrate 2 Angela’s prejudice and motives to lie. “On appeal, we will not second guess the trial 3 strategy and tactics of the defense counsel.” Lytle, 2001-NMSC-016, ¶ 43 (internal 4 quotation marks and citation omitted). A prima facie case is not made when there is 5 a plausible and rational strategy or tactic to explain the conduct of counsel. State v. 6 Swavola, 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct. App. 1992). Further, we 7 presume that trial counsel was competent. State v. Jacobs, 2000-NMSC-026, ¶ 48, 8 129 N.M. 448, 10 P.3d 127. 9 Defendant’s claim that trial counsel should have filed a motion for a bill of 10 particulars, in regard to the intimidation of a witness charge, is likewise without merit. 11 Knowledge of the exact date or a more narrow charging period for the witness 12 intimidation charge would not have helped Defendant in challenging Angela’s 13 credibility. Angela testified as follows:

14 [Defendant] said if I ever said anything that he would kill me. And that 15 was not the first time. He would always threaten me and get a knife and 16 tell me that he didn’t love me, that he didn’t care, that he was only with 17 me for the kids, that it wouldn’t take him nothing to kill me and bury me 18 wherever, that he didn’t care.

19 In this particular case, the intimidation could conceivably have been the entire 20 four-year period, beginning with the night of the incident, and ending when the police 21 ultimately found and confronted Angela with the fact that a body was found on the

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1 property where she used to live. This, combined with our agreement that Defendant 2 was not prevented from challenging Angela’s credibility, leads us to conclude 3 Defendant has not demonstrated that his counsel’s failure to request a bill of 4 particulars, in regard to the intimidation of a witness charge, has resulted in a 5 deficiency that prejudiced Defendant. 6 Finally, Defendant also claims that trial counsel’s failure to file a motion, which 7 requested suppression or admonishment to the jury upon hearing evidence that 8 Defendant used illegal drugs, rises to the level of ineffective assistance. While on the 9 witness stand, Angela was asked by defense counsel whether Defendant was working 10 in 2002. Angela responded: “No. He never used to work, just for his drug habit.” 11 Defense counsel did not object and did not request an instruction from the court 12 admonishing the jury. However, failure to object does not establish ineffective 13 assistance. State v. Peters, 1997-NMCA-084, ¶ 40, 123 N.M. 667, 944 P.2d 896. The 14 decision about whether to object to evidence is a matter of trial tactics. Id. As we 15 have stated, the record demonstrates that there was a concerted effort to establish 16 various reasons that the witnesses had to dislike Defendant. That strategy is clearly 17 within the purview of trial counsel. This Court will not evaluate defense counsel’s 18 trial strategy and tactics. State v. Gonzales, 113 N.M. 221, 230, 824 P.2d 1023, 1032 19 (1992).

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1 III. CONCLUSION 2 For the reasons stated above, we affirm Defendant’s convictions. 3 IT IS SO ORDERED.

4 _______________________________ 5 ROBERT E. ROBLES, Judge

6 WE CONCUR:

7 ___________________________ 8 JAMES J. WECHSLER, Judge

9 ___________________________ 10 JONATHAN B. SUTIN, Judge