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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 28,845
10 RAY M. QUIROZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 13 Thomas A. Rutledge, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM 16 James W. Grayson, Assistant Attorney General 17 Albuquerque, NM
18 for Appellee
19 Hugh W. Dangler, Chief Public Defender 20 Eleanor Brogan, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION
24 WECHSLER, Judge. 1 Defendant Ray Quiroz appeals from the district court’s judgment, order and
2 commitment to the Corrections Department. He was convicted after a jury trial of
3 possession of a controlled substance, a fourth degree felony, and concealing identity,
4 a petty misdemeanor. On appeal, he contends that: (1) the evidence was insufficient
5 to prove beyond a reasonable doubt that he possessed methamphetamine; (2) the
6 district court erred in admitting the forensic crime laboratory report of the State of
7 New Mexico Department of Public Safety (DPS) as a business record because it
8 violated Defendant’s right of confrontation under the Fifth Amendment to the United
9 States Constitution; (3) Defendant did not receive effective assistance to which he was
10 entitled by the Sixth Amendment to the United States Constitution; and (4) the district
11 court erred because it did not inform the jury when it was evenly deadlocked to
12 suspend its deliberations and wait for further instructions. We affirm.
13 SUFFICIENCY OF THE EVIDENCE
14 Defendant argues that the evidence was insufficient to support his conviction
15 for possessing methamphetamine. “The test for sufficiency of the evidence is whether
16 substantial evidence of either a direct or circumstantial nature exists to support a
17 verdict of guilt beyond a reasonable doubt with respect to every element essential to
18 a conviction.” State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M. 821, 192 P.3d 1198
19 (internal quotation marks and citation omitted). We view the evidence in the light
2 1 most favorable to, and indulge all inferences in favor of the verdict. Id.; State v.
2 Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). If there is sufficient evidence
3 supporting the verdict, we do not reweigh the evidence or substitute our judgment for
4 that of the factfinder. State v. Fuentes, 2010-NMCA-027, ¶ 13, 147 N.M. 761, 228
5 P.3d 1181.
6 As the jury instructions provided, for the jury to find Defendant guilty of
7 possession of methamphetamine beyond a reasonable doubt, it was required to find
8 that Defendant had methamphetamine in his possession and knew that it was
9 methamphetamine. As to possession, the district court instructed the jury that a
10 “person is in possession . . . when he knows it is on his person or in his presence and
11 he exercises control over it.” To convict Defendant, the jury was therefore required
12 to find more than mere possession. State v. Garcia, 2005-NMSC-017, ¶ 13, 138 N.M.
13 1, 116 P.3d 72. Indeed, in circumstances in which an area is shared with others, our
14 case law stresses the need for proof that a defendant exercises control of the
15 contraband property. See State v. Maes, 2007-NMCA-089, ¶¶ 20-21, 142 N.M. 276,
16 164 P.3d 975 (holding that knowledge of another’s drugs and ability to exercise
17 control was insufficient); State v. Sizemore, 115 N.M. 753, 757, 858 P.2d 420, 424
18 (Ct. App. 1993) (stating that presence in proximity of stolen goods in shared area is
19 insufficient evidence to support a conviction).
3 1 However, circumstantial evidence of the constructive possession is sufficient
2 to support a conviction. See State v. Barber, 2004-NMSC-019, ¶ 27, 135 N.M. 621,
3 92 P.3d 633 (“Proof of possession in controlled substances cases may be established
4 by evidence of the conduct and actions of a defendant, and by circumstantial evidence
5 connecting defendant with the crime.”). There is such circumstantial evidence in this
6 case.
7 Officers of the Pecos Valley Drug Task Force received a tip that Defendant was
8 selling methamphetamine from a home and established surveillance of the home. They
9 knew there was an outstanding arrest warrant for Defendant. Officer Ramiro Martinez
10 was observing the house from the next block with binoculars. He was familiar with
11 Defendant’s appearance. He testified that he observed Defendant leave the residence
12 while carrying a black jacket. He could see clearly because it was light outside.
13 Defendant entered a car on the rear passenger side.
14 Officers stopped the car a couple of blocks from the house under surveillance.
15 Chad Jones was in the driver’s seat, Misty Farmer was in the front passenger seat,
16 Shon Eastman was in the rear seat behind the driver, and Defendant was in the rear
17 seat on the passenger side. The officers secured the car, removed the occupants, and
18 obtained a warrant to search the car. During the search, Officer Carroll Caudill found
19 a black jacket in the front of the car on both the console and the passenger seat with
4 1 a substance that was later identified as methamphetamine in one of its pockets. It was
2 the only black jacket in the car. The officers also found a large amount of cash in the
3 console and drug paraphernalia, marijuana, and a drug ledger in Farmer’s purse in the
4 front passenger seat.
5 Although Defendant argues that the evidence was insufficient to establish
6 Defendant’s possession of the black jacket, and therefore the methamphetamine,
7 Defendant does not set forth in his brief in chief all the evidence pertaining to the
8 issue. See Rule 12-213(A)(3) NMRA (“A contention that a verdict, judgment or
9 finding of fact is not supported by substantial evidence shall be deemed waived unless
10 the summary of proceedings includes the substance of the evidence bearing upon the
11 proposition[.]”). Regardless, there was sufficient evidence for the jury to reasonably
12 conclude that Defendant had possession of the jacket.
13 Officer Martinez testified that he clearly observed Defendant carrying a black
14 jacket into the car. The officers stopped the car within a few blocks after Officer
15 Martinez’s observation. Both Defendant and the driver testified that there was no
16 opportunity to hide anything from the officers and that no one in the car moved in
17 response to the officers’ presence. The officers found only one black jacket in the car.
18 Defendant argues that the State did not prove his possession of the black jacket
19 beyond a reasonable doubt because there was conflicting testimony as to whether
5 1 Defendant was carrying a black jacket that day. Defendant testified that he did not
2 have a black jacket, that he was carrying a black backpack, and that he did not see a
3 black jacket in the car. Eastman testified that he saw a jacket on the front console
4 before Defendant entered the car and that Defendant did not have a jacket. He did not
5 know who owned the jacket. Jones, the driver, did not see the jacket in the car and
6 testified that it was not on the console. He did not see Defendant with a black jacket.
7 Both Eastman and Jones said that Defendant had a backpack; Eastman could not
8 remember the color, and Jones thought it was more green than black. Further, the
9 jacket was admitted into evidence and therefore available for the jury to compare with
10 the description of Farmer’s size and typical dress.
11 The flaw in Defendant’s argument is that he is asking this Court to reweigh the
12 credibility of the witnesses and conclude that Defendant’s testimony and the
13 inconsistent testimony of other occupants of the car are more credible than the
14 testimony of Officer Martinez. Not only do we not reweigh the evidence, but we must
15 “resolve all disputed facts in favor of the [s]tate, indulge all reasonable inferences in
16 support of the verdict, and disregard all evidence and inferences to the contrary.”
17 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. Moreover,
18 “[c]ontrary evidence supporting acquittal does not provide a basis for reversal because
19 the jury is free to reject Defendant’s version of the facts.” Id.
6 1 Defendant argues in this regard that “evidence equally consistent with two
2 inferences does not, without more, provide a basis for adopting either one— especially
3 beyond a reasonable doubt,” State v. Garcia, 114 N.M. 269, 275, 837 P.2d 862, 868
4 (1992), and that the testimony in this case required the jury to speculate in order to fill
5 the gaps in the State’s proof. However, as this Court has stated in response to a
6 similar argument, “[w]hen a defendant argues that the evidence and inferences present
7 two equally reasonable hypotheses, one consistent with guilt and another consistent
8 with innocence, . . . the jury has necessarily found the hypothesis of guilt more
9 reasonable than the hypothesis of innocence.” State v. Montoya, 2005-NMCA-078,
10 ¶ 3, 137 N.M. 713, 114 P.3d 393. We decline Defendant’s invitation to intrude upon
11 the role of the jury and to overturn its verdict.
12 CONFRONTATION CLAUSE
13 Defendant argues that the district court erred in admitting the DPS forensic
14 crime report as a business record because it violates his rights under the confrontation
15 clause of the United States Constitution. The report was prepared by Eric Young, a
16 forensic scientist at the Southern Forensic Laboratory (SFL), who performed
17 laboratory tests on the substance found in the black jacket. Young was not available
18 to testify at trial, and Adam Pasternak, also a forensic scientist at the SFL, testified
19 concerning the report and his own review and opinions relating to Young’s report.
7 1 At the outset of Pasternak’s testimony, defense counsel made a general
2 objection to the testimony and asked to approach the bench. The bench conference
3 is mostly inaudible on the record provided to this Court. After the bench conference,
4 the district court discussed the business record exception to the hearsay rule and the
5 scope of the testimony of expert witnesses under Rules 11-702 and 11-703 NMRA.
6 It allowed the State to examine Pasternak to lay a foundation with regard to the
7 objection. The district court then ruled that it would allow the testimony under Rule
8 11-803(F) NMRA, the business record exception to the hearsay rule, and Rules 11-
9 702 and 11-703, the rules concerning the testimony of expert witnesses. It told
10 defense counsel that its record was adequately established for appellate review.
11 Defendant acknowledges on appeal that he “did not specifically state that his
12 objection to the substitute analyst was based on the [c]onfrontation [c]lause.” He
13 contends, however, that he preserved his confrontation clause argument with his
14 objection because the district court’s “ruling showed that it was adequately alerted that
15 [Defendant] was moving to exclude . . . Pasternak as a witness based on a violation
16 of his right to confront witnesses against him.” He contends that he made his
17 objection following Pasternak’s statement that Young performed the tests of the
18 substance at issue.
19 Our review of the record does not bear out Defendant’s contentions. Although
8 1 defense counsel’s objection was timely, he only stated that he objected and asked to
2 approach the bench. As Defendant admits, the bench conference discussions are not
3 audible on the record. (BIC 16) Defendant had the obligation to prepare a statement
4 of proceedings under such circumstances and did not do so. Rule 12-211(H) NMRA.
5 The district court’s ruling does not show that it was alerted to a confrontation
6 clause argument. See State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d
7 1280 (“In order to preserve an error for appeal, it is essential that the ground or
8 grounds of the objection or motion be made with sufficient specificity to alert the
9 mind of the trial court to the claimed error or errors, and that a ruling thereon then be
10 invoked.”) (internal quotation marks and citation omitted). After the voir dire with
11 regard to foundation, the district court asked questions of Pasternak that related to the
12 admission of records and the bases for an expert’s opinion. The district court then
13 ruled that it would allow the evidence under Rule 11-803(F), pertaining to the
14 business record exception to the hearsay rule, and under Rules 11-702 and 11-703,
15 pertaining to the admissibility of expert witness testimony. It did not mention the
16 confrontation clause, Defendant’s right to confront witnesses against him, or aspects
17 underlying a confrontation clause argument such as the testimonial nature of the
18 evidence.
19 Moreover, defense counsel’s own actions do not indicate that he was making
9 1 a confrontation clause argument. When defense counsel had the opportunity to
2 conduct a voir dire examination of Pasternak after the district court allowed the State
3 to lay a foundation in connection with defense counsel’s objection, defense counsel
4 did not ask questions that related to a confrontation clause objection, such as questions
5 that would indicate that the evidence was testimonial in nature. See Crawford v.
6 Washington, 541 U.S. 36, 68-69 (2004) (stating that the confrontation clause applies
7 to out-of-court testimonial statements).
8 A hearsay objection is not sufficient to preserve a confrontation clause
9 argument for appellate review. State v. Lucero, 104 N.M. 587, 591, 725 P.2d 266, 270
10 (Ct. App. 1986); see also State v. Silva, 2008-NMSC-051, ¶ 10, 144 N.M. 815, 192
11 P.3d 1192 (declining to address confrontation clause argument when objection in
12 district court was under Fifth Amendment); State v. Trujillo, 2002-NMSC-005, ¶ 13,
13 131 N.M. 709, 42 P.3d 814 (declining to address confrontation clause argument when
14 the objection in district court was on general impeachment and hearsay grounds).
15 Defendant’s hearsay objection did not alert the district court to a confrontation clause
16 argument, and we will not consider it for the first time on appeal.
17 INEFFECTIVE ASSISTANCE OF COUNSEL
18 Defendant argues that his trial counsel did not provide effective assistance.
19 Specifically, he contends that counsel failed to (1) follow-up on Defendant’s request
10 1 to take a lie detector test, (2) investigate the use of the confidential informant referred
2 to in the criminal complaint, (3) subpoena a key witness, and (4) analyze the black
3 jacket for hair or fingerprints.
4 A defendant has the burden of establishing a prima facie case of ineffective
5 assistance of counsel by showing that (1) “counsel’s performance fell below that of
6 a reasonably competent attorney,” and (2) “the deficient performance prejudiced the
7 defense.” State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729
8 (internal quotation marks and citation omitted). The defendant must show that, as a
9 result of counsel’s errors, the trial was not fair in that the results are not reliable.
10 Strickland v. Washington, 466 U.S. 668, 687 (1984). In conducting our review, we
11 strongly presume that counsel has “rendered adequate assistance and made all
12 significant decisions in the exercise of reasonable professional judgment.” Id. at 690.
13 We “will not second guess the trial strategy and tactics” of counsel. State v. Gonzales,
14 113 N.M. 221, 230, 824 P.2d 1023, 1032 (1992).
15 The record before us does not support Defendant’s claims. With regard to the
16 lie detector, Defendant states that he made a written request to counsel to make the
17 request. He states that the case depended on his credibility and the lie detector test
18 would have reinforced his testimony that the drugs did not belong to him. However,
19 Defendant does not demonstrate, beyond his assertion, how the results of the test
11 1 would support his testimony.
2 As to investigation of the confidential informant, Defendant contends that
3 counsel did not conduct a reasonable and thorough investigation. Yet, again, he does
4 not explain the manner in which further investigation of the confidential informant
5 would have helped his defense or changed the result of the trial.
6 Defendant asserts that Farmer was a key witness to his defense because she was
7 the occupant of the front passenger seat where the black jacket was found. Although
8 she was listed as a witness by the State, she did not appear for trial. However,
9 Defendant does not discuss what her testimony would have been or how it would have
10 made a difference in the trial.
11 As to the failure to challenge the legality of the officers’ stop of the car,
12 Defendant states that a reasonably competent attorney would have filed a motion to
13 suppress because the stop was unreasonable. But the testimony at trial established that
14 there was an outstanding warrant for Defendant’s arrest and that Officer Martinez
15 recognized Defendant and conveyed information to the arresting officers. Defendant
16 has not demonstrated that his trial counsel did not perform in a reasonably competent
17 manner.
18 Although Defendant makes an assertion in his brief in chief that his counsel was
19 also ineffective for failure to analyze the black jacket for hair and fingerprints, he does
12 1 not make an argument in that regard. We therefore do not address the assertion. See
2 Rhoades v. Rhoades, 2004-NMCA-020, ¶ 18, 135 N.M. 122, 85 P.3d 246 (declining
3 to address an assertion unsupported by citation to authority for argument).
4 Defendant has not made a prima facie showing of ineffective assistance of
5 counsel on the record on appeal. Nothing precludes him, however, from filing a
6 petition for habeas corpus raising an ineffective assistance of counsel claim. See State
7 v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31.
8 JURY DEADLOCK
9 The jury sent a note indicating that it was deadlocked six to six in its
10 deliberations on the possession of a controlled substance charge. The district court
11 received the note at 1:55 p.m. and asked for argument from counsel as to what
12 instruction to give the jury. During this discussion, at 2:02:47 p.m., the bailiff
13 informed the court that the jury had reached a verdict. Defendant argues that the
14 district court erred by failing, when it received the jury’s note, to inform the jury that
15 it should suspend its deliberations and wait for further instruction. Defendant
16 contends that the district court denied his constitutional right to a fair trial by not
17 informing the jury that it should suspend its deliberations and await further instruction
18 from the court.
19 When the district court received the jury’s note, it had the obligation to
13 1 communicate with the jury. State v. McCarter, 93 N.M. 708, 710, 604 P.2d 1242,
2 1244 (1980). It could advise the jury that it could continue its deliberations but not
3 that it had to continue. Id. It could not coerce the jury to continue its deliberations
4 or to reach a verdict. Id. at 711, 604 P.2d at 1245. The court decided to confer with
5 counsel as to the manner in which it should communicate with the jury. However,
6 within a very short time, and before the district court could hear from counsel, the jury
7 reached its verdict.
8 The district court did not act unreasonably by not informing the jury that it had
9 to await further instruction. There was no reason that the jury could not continue its
10 deliberations until it heard from the court. The court did not take an unreasonable
11 time, and it did not coerce the jury in any way. It did not err by not immediately
12 advising the jury to discontinue deliberations.
13 CONCLUSION
14 We affirm the district court’s judgment, order and commitment to the
15 Corrections Department.
16 IT IS SO ORDERED.
17 _______________________________ 18 JAMES J. WECHSLER, Judge
14 1 I CONCUR:
2 ________________________________ 3 JONATHAN B. SUTIN, Judge
4 RODERICK T. KENNEDY, Judge (specially concurring)
15 1 KENNEDY, Judge (specially concurring).
2 Because Defendant failed to adequately alert the district court to a problem
3 under the confrontation clause, and because this resulted in his then abandoning his
4 hearsay objections on appeal in favor of the new, shiny argument, the carcass of the
5 defense’s objections has no meat left, and I must concur with the result in this case.
6 Although the distinction was made in the context of determining that they are
7 testimonial statements, we should be mindful that lab reports were taken out of the
8 business records context of Rule 11-803(F), precisely because they are prepared for
9 use in fact-specific work relating to a particular case, and not in the
10 regularly-conducted administration of a business or public entity. Such a report
11 contains information as to matters observed that are unique to this case, as well as Mr.
12 Young’s professional opinions and conclusions about the import of those observations
13 and data with particular reference to whether only the substance provided to him for
14 testing for purposes of only this case, was methamphetamine. This case is therefore
15 a return to State v. Christian, 119 N.M. 776, 782, 895 P.2d 676, 682 (Ct. App. 1995),
16 where one expert testified to the observations and conclusions of the analyzing expert.
17 That practice is now discredited.
18 The persistent hearsay problem of testifying to another’s opinions or admitting
19 the report containing them wholesale is disturbing. Our Courts have long held that
16 1 although experts may rely on facts and data, including hearsay, in forming their
2 opinion, the hearsay itself is inadmissible. Rule 11-703; State v. Bullcoming, 2010-
3 NMSC-007, ¶ 24, 147 N.M. 487, 226 P.3d 1. The rule also limits the expert to
4 formation of his opinions based on facts and data and does not permit him to rely on
5 another expert’s hearsay opinion. O’Kelly v. State, 94 N.M. 74, 76, 607 P.2d 612, 614
6 (1980). In fact, in O’Kelly the admission of the opinion of a non-testifying expert has
7 been held to be reversible error. State v. Aragon, 2010-NMSC-008, ¶ 24, 147 N.M.
8 474, 483, 225 P.3d 1280, 1289 (N.M. 2010). We should strictly remember that
9 “reliance upon such hearsay facts or data, or partial reliance upon another expert’s
10 opinion that is not in evidence, to form an independent expert opinion does not
11 necessarily make the hearsay itself admissible.” Aragon, 2010-NMSC-008,¶ 23. See
12 State v. Delgado, 2010-NMCA-078, ¶ 4 (holding that to the extent expert testifies to
13 non-testifying expert’s conclusions, that evidence is inadmissible testimonial hearsay),
14 cert. denied, 2010-NMCERT-007, __ N.M.__, 241 P.3d 611 (No. 32,441, July 13,
15 2010).
16 Pasternack may have testified to Young’s conclusions or opinions, rather than
17 just the facts and data and his own opinion based on them. and the district court
17 1 admitted Young’s report to be admitted and presented to the jury.
2 ____________________________________ 3 RODERICK T. KENNEDY, Judge