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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: _____________ 3 Filing Date: March 20, 2023 4 No. A-1-CA-39869 5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v. 8 GREGG STEELE, 9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY 11 Jeffrey A. Shannon, District Court Judge
12 Raúl Torrez, Attorney General 13 Laurie Blevins, Assistant Attorney General 14 Santa Fe, NM
15 for Appellee
16 Bennett J. Baur, Chief Public Defender 17 MJ Edge, Assistant Appellate Defender 18 Santa Fe, NM
19 for Appellant 1 OPINION 2 HANISEE, Judge. 3 {1} Defendant Gregg Steele appeals (1) his convictions for second degree murder, 4 contrary to NMSA 1978, Section 30-2-1(B) (1994), and tampering with evidence, 5 contrary to NMSA 1978, Section 30-22-5 (2003), as well as (2) the district court’s 6 denial of Defendant’s motion for a new trial. Defendant argues he was denied 7 effective assistance of counsel due to the district court’s adherence to applicable and 8 mandatory distancing restrictions issued by our Supreme Court in response to the 9 COVID-19 public health emergency. For the reasons that follow, we conclude 10 Defendant is unable to establish the prima facie case necessary to advance a claim 11 of ineffective assistance of counsel on direct appeal. Therefore, we affirm, but note 12 that nothing about our doing so prevents Defendant from more fully developing the 13 issue he presents in this appeal in future habeas corpus proceedings. 14 DISCUSSION 15 {2} Defendant argues the district court erred in denying his motion for a new 16 trial—and, consequently, challenges the validity of his convictions—because the 17 district court’s enforcement of public health orders, primarily the New Mexico 18 Supreme Court Order, In the Matter of Recommencing Jury Trials During the 19 COVID-19 Public Health Emergency, 20-8500-020 (N.M. May, 28, 2020) (the 20 Supreme Court Order), in which our state’s highest court set forth procedures related
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1 to the recommencing of jury trials during the COVID-19 public health emergency, rendered 2 Defendant without effective assistance of counsel. See https://www.nmcourts.gov/wp- 3 content/uploads/2020/12/Order-No_-20-8500-020-Order-Recommencing-Jury-Trials-5-28-20- 4 2.pdf. Specifically, Defendant contends that one particular requirement of the 5 Supreme Court Order—namely that all individuals maintain a minimum distance of 6 six feet between one another—resulted in Defendant being unable to have privileged 7 communications with his trial counsel before and during trial. 1 Defendant states that 8 such inability to maintain privileged communications with his trial counsel 9 precluded him from electing to testify in his own defense. Defendant claims as well 10 that the district court erroneously perceived and found the Supreme Court Order to 11 incorporate a determination that the ability to maintain attorney-client 12 communications before and during proceedings is not a prerequisite for effective 13 assistance of counsel. 14 {3} Defendant’s arguments broadly center on an assertion that the district court’s 15 adherence to the Supreme Court Order resulted in Defendant receiving ineffective 16 assistance of counsel. Indeed, the alleged deficiencies by his trial counsel arose 17 solely from compliance with the district court’s enforcement of the Supreme Court
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Defendant does not specify under what authority the social distancing restrictions were enforced at the jail. For the purposes of this discussion, we refer to the Supreme Court Order, but make no determination about whether the Supreme Court Order governed social distancing at the county jail.
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1 Order. To the extent Defendant’s arguments challenge the propriety or legality of 2 the Supreme Court Order, we would decline to entertain such an inquiry as it should 3 instead be directed to our Supreme Court. See Alexander v. Delgado, 1973-NMSC- 4 030, ¶ 9, 84 N.M. 717, 507 P.2d 778 (“The general rule is that a court lower in rank 5 than the court which made the decision invoked as a precedent cannot deviate 6 therefrom and decide contrary to that precedent, irrespective of whether it considers 7 the rule laid down therein as correct or incorrect.” (internal quotation marks and 8 citation omitted)); see also N.M. Const. art. VI, § 3 (providing that our Supreme 9 Court is granted “superintending control over all inferior courts”); State v. Peru, 10 2022-NMCA-018, ¶ 5, 508 P.3d 907 (holding there to be no error in the district 11 court’s interpretation and enforcement of a comparable Supreme Court order related 12 to proceedings during the COVID-19 public health emergency), cert. denied (S-1- 13 SC-39205). Here, though, we perceive ourselves faced not with a question regarding 14 the legality of the Supreme Court Order itself, but rather the effects of the Supreme 15 Court Order on Defendant’s right to effective assistance of counsel. 16 {4} To raise this issue, Defendant appeals the district court’s denial of his motion 17 for a new trial, which we review for abuse of discretion. See State v. Ferguson, 1990- 18 NMCA-117, ¶ 4, 111 N.M. 191, 803 P.2d 676. Regarding Defendant’s broader 19 assertions of ineffective assistance of counsel, we reiterate that “[c]riminal 20 defendants are entitled to reasonably effective assistance of counsel under the Sixth
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1 Amendment of the United States Constitution.” State v. Crocco, 2014-NMSC-016, 2 ¶ 12, 327 P.3d 1068 (internal quotation marks and citation omitted). “To evaluate a 3 claim of ineffective assistance of counsel, we apply the two-prong test in Strickland 4 v. Washington, 466 U.S. 668, 687 (1984).” State v. Dylan J., 2009-NMCA-027, ¶ 36, 5 145 N.M.719, 204 P.3d 44. “That test places the burden on the defendant to show 6 that his counsel’s performance was deficient and that the deficient performance 7 prejudiced his defense.” Id.; see also Crocco, 2014-NMSC-016, ¶ 14 (“[A] prima 8 facie case [of ineffective assistance of counsel] requires [the d]efendant to establish 9 both elements of ineffective assistance, attorney error and prejudice.”). 10 {5} Here, Defendant contends that the district court’s order denying Defendant’s 11 motion for a new trial erroneously concludes that confidential, in-person 12 communication between a defendant and counsel before and during trial is not 13 necessary for effective assistance. Indeed, the parties do not disagree—and neither 14 do we—that the district court’s characterization of the Supreme Court Order as 15 concluding that trial communication between a defendant and their attorney is not 16 necessary to effective representation is mistaken. Nothing about the Supreme Court 17 Order makes any such suggestion. Taking this a step further, we express concern 18 regarding limitation on a defendant’s capacity to communicate with his trial counsel 19 in real time during proceedings. Nonetheless, the record here demonstrates that the 20 district court’s order arose from a trial in which Defendant was able to communicate
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1 with counsel, albeit in a manner constrained by method and proximity. The 2 proceedings in the district court reflect that Defendant and his counsel, while not 3 able to speak directly to one another during trial due to the Supreme Court Order 4 spacing requirements, were able to communicate during trial by exchanging written 5 notes. The district court directed Defendant and counsel to exercise caution when 6 passing such notes so as to avoid juror observation thereof, but that direction did not, 7 according to the record available to us, preclude Defendant and counsel from using 8 confidential written communication during trial. Further, Defendant and counsel 9 were able to communicate during pretrial preparations, although only virtually. The 10 record reflects that one such virtual meeting between Defendant and counsel was 11 conducted in the presence of jail staff, a point of concern, but we lack information 12 regarding the specific nature of that conversation or how it was limited in a manner 13 that the conversation could not be later revived outside the presence of jail personnel. 14 As well, during breaks from trial, Defendant and counsel were able to communicate 15 with one another in-person while outside the presence of the jury, but were required 16 to maintain the distancing and masking requirements of the Supreme Court Order 17 while doing so. These in-person communications during breaks from trial were 18 conducted in the presence of law enforcement officers, and counsel acknowledged 19 during the hearing on Defendant’s motion for a new trial that the officers were 20 present for security purposes.
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1 {6} Although we have no doubt that these limited means of communication 2 impeded counsel’s ability to freely communicate with Defendant to some degree, 3 such does not singularly render counsel deficient to the extent that establishes a 4 prima facie showing of ineffective assistance of counsel. See Crocco, 2014-NMSC- 5 016, ¶ 14. “A defense is prejudiced if, as a result of the deficient performance, there 6 was a reasonable probability that the result of the trial would have been different.” 7 Dylan J., 2009-NMCA-027, ¶ 38 (omission, internal quotation marks, and citation 8 omitted). Defendant fails to establish—and the record before us lacks as yet 9 sufficient development to demonstrate—a reasonable probability that the result of 10 the trial would have been different, and therefore fails to establish the requisite 11 prejudice necessary to a prima facie case of ineffective assistance of counsel. We 12 conclude that Defendant’s claims, as thus far developed, relate to the methods of and 13 diminished opportunity for communication with counsel and the investigators and 14 not the complete absence thereof, and under the circumstances set forth at the 15 hearing on the motion for new trial, we hold there to be no error of law in the district 16 court’s denial of a new trial on the basis of ineffective assistance of counsel. 17 Concluding there to be no underlying prima facie case of ineffective assistance of 18 counsel as presently developed in the trial record, we discern no abuse of discretion 19 by the district court related to its denial of Defendant’s motion for a new trial on that 20 basis.
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1 {7} As so often the appellate courts do, we emphasize that our holding in this 2 regard does not preclude Defendant from seeking an evidentiary hearing within a 3 habeas corpus proceeding, as such remains the best mechanism to develop specific 4 facts related to the claim. “[A] claim of ineffective assistance of counsel is best 5 addressed in a habeas corpus proceeding.” State v. Astorga, 2016-NMCA-015, ¶ 25, 6 365 P.3d 53. “Because the [district] court’s record may not adequately document the 7 sort of evidence essential to a determination of trial counsel’s effectiveness, 8 ineffective assistance of counsel claims are often better adjudicated through habeas 9 corpus proceedings.” State v. Miera, 2018-NMCA-020, ¶ 30, 413 P.3d 491 10 (alteration, internal quotation marks, and citation omitted); see also Crocco, 2014- 11 NMSC-016, ¶¶ 13, 15 (explaining that because “an appellate court cannot determine 12 that trial counsel provided constitutionally ineffective assistance” without an 13 adequate record, “a claim of ineffective assistance of counsel should normally be 14 addressed in a post-conviction habeas corpus proceeding, which may call for a new 15 evidentiary hearing to develop facts beyond the record”). 16 CONCLUSION 17 {8} For the reasons stated above, we affirm. 18 {9} IT IS SO ORDERED.
19 ______________________________ 20 J. MILES HANISEE, Judge
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1 WE CONCUR:
2 _____________________________ 3 MEGAN P. DUFFY, Judge
4 _____________________________ 5 KATHERINE A. WRAY, Judge