State v. Viera

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 30,075 10 LARRY HILARIO VIERA, 11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 13 Stephen K. Quinn, 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 Jacqueline L. Cooper, Acting Chief Public Defender 20 Nina Lalevic, Assistant Appellate Defender 21 Santa Fe, NM

22 for Appellant 23 MEMORANDUM OPINION 24 SUTIN, Judge.

1 Defendant Larry Hilario Viera appeals his conviction of two counts of 2 trafficking controlled substances. At trial, defense counsel cross-examined the 3 arresting officer on the issue of pretextual arrest. The district court ruled it 4 inappropriate to raise the issue in the jury’s presence and declined to rule on the issue 5 of pretext. We conclude that the district court did not abuse its discretion by declining 6 to make a ruling on whether the stop was pretextual, and we reject Defendant’s 7 ineffective assistance of counsel argument. We affirm. 8 BACKGROUND 9 Detective Steven Wright stopped Defendant for a cracked taillight. After being 10 advised by dispatch that Defendant’s driver’s license was revoked, Detective Wright 11 arrested Defendant, and at the detention center, officers discovered that Defendant 12 possessed several baggies containing substances later determined to be illicit drugs. 13 At trial, the State led off with Detective Wright, through whom the State 14 presented evidence of the traffic stop, the arrest, and Defendant’s possession of and 15 alleged intent to distribute drugs. Defense counsel did not object to the State’s direct 16 examination of Detective Wright but, on cross-examination, Defendant’s counsel 17 asked questions through which he was attempting to establish whether Detective 18 Wright used the cracked taillight as a pretext for the stop. The State objected, 19 explaining that defense counsel’s attempt to establish pretext would be appropriate for

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1 a motion in limine or motion to suppress, but that it was not a matter to be presented 2 before the jury. The district court sustained the State’s objection. Defense counsel 3 nevertheless persisted in attempting to establish that Detective Wright used 4 Defendant’s broken taillight as a pretext to investigate further. 5 Following a second objection by the State to defense counsel “going down the 6 line of Ochoa,” a bench conference was held. Defense counsel asked the district court 7 for a ruling as to whether Detective Wright had used the cracked taillight as a pretext 8 for further investigation and thereby committed an Ochoa violation. See State v. 9 Ochoa, 2009-NMCA-002, ¶¶ 38, 42, 146 N.M. 32, 206 P.3d 143 (holding that 10 “pretextual traffic stops are not constitutionally reasonable in New Mexico” and that 11 “[w]here there is a factual finding of pretext, that the officer had a constitutionally 12 invalid purpose for the stop . . ., the stop violates the New Mexico Constitution, and 13 the evidentiary fruits of the stop are inadmissible”). In support of his requested ruling, 14 defense counsel pointed to several facts from Detective Wright’s testimony, including 15 that the detective noticed that Defendant backed out of the driveway of a convicted 16 drug distributor and that before initiating a traffic stop, he followed Defendant “for 17 a while” to a less-congested traffic area. The district court held that it would not make 18 any findings with regard to pretext, rather, it would sustain or overrule objections as

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1 they were made. Additionally, the district court found that it was inappropriate for 2 defense counsel to have raised the issue before the jury. 3 Trial proceeded. The State presented other witnesses and evidence relating to 4 Defendant’s drug possession. The jury convicted Defendant. On appeal, Defendant 5 argues that he was entitled to move to suppress evidence under Ochoa based on 6 Detective Wright’s testimony at trial showing that the stop was pretextual and that the 7 district court erred in not allowing further questioning of the detective and in not 8 making a ruling under Ochoa. In the alternative, Defendant argues that defense 9 counsel was ineffective for failing to make a motion to suppress prior to trial. For 10 reasons explained in this Opinion, we affirm Defendant’s convictions. 11 DISCUSSION 12 Standard of Review 13 We review the district court’s decision to sustain objections to testimony for an 14 abuse of discretion. See State v. Allison, 2000-NMSC-027, ¶ 31, 129 N.M. 566, 11 15 P.3d 141 (explaining that a district court’s decision to admit testimony is reviewed for 16 abuse of discretion). Likewise, we review the district court’s decision to refrain from 17 making a ruling on Defendant’s motion to suppress for an abuse of discretion. See 18 State v. Gutierrez, 2005-NMCA-015, ¶ 21, 136 N.M. 779, 105 P.3d 332 (recognizing 19 that the court has discretion to not hear a motion to suppress that was made outside the

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1 twenty-day time limit under Rule 5-212(C) NMRA). “An abuse of discretion occurs 2 when the ruling is clearly against the logic and effect of the facts and circumstances 3 of the case. We cannot say the trial court abused its discretion by its ruling unless we 4 can characterize it as clearly untenable or not justified by reason.” State v. Duarte, 5 2007-NMCA-012, ¶ 3, 140 N.M. 930, 149 P.3d 1027 (internal quotation marks and 6 citation omitted). 7 The Denial of Defendant’s Requests Made at Trial 8 The State concedes that “[a]lthough defense counsel did not expressly request 9 suppression of the evidence, counsel’s request for a finding of pretext was sufficient 10 to alert both the trial court and the prosecutor to defense counsel’s goal of obtaining 11 suppression of the evidence.” We agree and proceed to address Defendant’s point on 12 appeal. 13 Rule 5-212(C) states that “[a] motion to suppress shall be made within twenty 14 . . . days after the entry of a plea, unless, upon good cause shown, the trial court 15 waives the time requirement of this rule.” Despite the apparent mandatory nature of 16 Rule 5-212(C), the committee commentary to Rule 5-212 states that “[t]he New 17 Mexico Rules of Criminal Procedure do not require [that a] motion objecting to 18 illegally seized evidence [be made] prior to trial.” Our Supreme Court has recognized 19 that while “[o]ur rules of criminal procedure provide that a motion to suppress

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1 evidence is to be made within twenty days after entry of a plea, . . . they do not require 2 that such a motion be made prior to trial.” Cnty. of Los Alamos v. Tapia, 109 N.M. 3 736, 744 n.13, 790 P.2d 1017, 1025 n.13 (1990) (emphasis omitted); see also State v. 4 Katrina G., 2008-NMCA-069, ¶ 17, 144 N.M. 205, 185 P.3d 376 (recognizing that “a 5 motion to suppress evidence is not required to be made before trial and may be made 6 at trial”); Gutierrez, 2005-NMCA-015, ¶ 21 (stating that “[t]here is no obligation for 7 [a d]efendant to move for suppression of evidence prior to trial”). Whether to hear a 8 motion to suppress made at trial is within the discretion of the district court. See 9 Tapia, 109 N.M. at 744 & n.13, 748, 790 P.2d at 1025 & n.13, 1029 (Wilson, J., 10 dissenting) (stating that “[a]lthough orderly procedure requires the motion to be made 11 earlier . . ., the court in its discretion may entertain a motion at the trial stage” and also 12 recognizing, in regard to waiting until trial to attack an indictment, that “any judicial 13 system should encourage litigants to raise objections at the earliest rather than [the] 14 latest possible time” (internal quotation marks and citation omitted)); Gutierrez, 2005- 15 NMCA-015, ¶ 21 (explaining that the fact that the defendant was outside the time 16 limit of Rule 5-212(C) in making his motion to suppress at trial “might have served 17 as grounds for not hearing or denying the motion or having it regarded in an 18 unfavorable light”).

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1 Defendant asserts that it would have been “practical” for the district court to 2 have heard the motion to suppress during trial. He explains that, because the 3 necessary witnesses were present at trial, the court could have excused the jury and 4 held a hearing on the motion. He further contends that, because his counsel had 5 already asked some questions regarding pretext, it would have been “a simple matter 6 for the [court] to decide” and that despite the interruption, the trial would have been 7 completed by the end of the working day. Nothing in the record indicates that 8 Defendant raised these considerations in the district court. We see nothing that 9 indicates that Defendant’s counsel requested the court to excuse the jury, discussed 10 what further witnesses and evidence he wanted to present, explained to the court the 11 reasonableness of his request in terms of the limited nature of the interruption, or 12 explained why the issue was being addressed for the first time during trial. 13 Determinations related to delay or interruption are within the discretion of the 14 district court. See State v. Garcia, 2011-NMSC-003, ¶¶ 23, 27, 30, 149 N.M. 185, 15 246 P.3d 1057 (holding that the district court properly exercised its “broad discretion” 16 in denying the defendant’s pro se motion made on the third day of a four-day trial 17 insofar as it properly balanced “whatever prejudice [was] alleged by the defendant 18 against considerations of disruption of the proceedings, inconvenience[,] and delay” 19 (internal quotation marks and citation omitted)); State v. Torres, 1999-NMSC-010, ¶

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1 10, 127 N.M. 20, 976 P.2d 20 (stating that, in evaluating a motion for continuance, the 2 district court should consider, among other things, the length of the delay, the degree 3 of inconvenience, and the fault of the movant in causing a need for the delay). 4 Defense counsel essentially made no attempt to persuade the district court why it 5 should exercise its discretion under Rule 5-212 in his favor by interrupting trial to hear 6 the merits of the pretext issue outside the presence of the jury. 7 We cannot say the district court abused its discretion. At the outset, defense 8 counsel seemed bent on a strategy of having the jury hear testimony in regard to 9 pretext. He did not explain why he did not move before trial to suppress evidence. 10 He did not discuss whether his failure to object to Detective Wright’s testimony at 11 trial about the drug possession and intent to sell had any negative bearing or impact 12 on his having pursued the pretext issue for the first time during trial. He made no 13 attempt to engage the court in consideration of questions of delay or interruption of 14 the trial. Under these circumstances, we will not second guess the district court’s 15 decision. See State v. Belanger, 2009-NMSC-025, ¶ 55, 146 N.M. 357, 210 P.3d 783 16 (recognizing that “trial courts have supervisory control over their dockets and inherent 17 power to manage their own affairs so as to achieve the orderly and expeditious 18 disposition of cases” (internal quotation marks and citation omitted)).

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1 When a defendant fails to raise the issue of suppression within the time limits 2 of Rule 5-212(C), he or she must be prepared to present persuasive reasons to the 3 district court explaining why the motion should be heard during trial, including an 4 explanation of why hearing the motion at trial would not disrupt the “orderly 5 procedure” of the trial. See Tapia, 109 N.M. at 744, 748, 790 P.2d at 1025, 1029 6 (Wilson, J., dissenting). In so holding, we “encourage litigants to raise objections at 7 the earliest rather than [the] latest possible time[.]” Id. at 744, 790 P.2d at 1025 8 (internal quotation marks and citation omitted). 9 Defendant’s Ineffective Assistance of Counsel Claim 10 Defendant argues, in the alternative, that his counsel was ineffective for failing 11 to move pre-trial to suppress the drug evidence because the facts of this case were 12 sufficiently similar to Ochoa such that a reasonably competent attorney could not have 13 decided that such a motion was unwarranted. 14 “The test for ineffective assistance of counsel is whether defense counsel 15 exercised the skill of a reasonably competent attorney.” State v. Aker, 2005-NMCA- 16 063, ¶ 34, 137 N.M. 561, 113 P.3d 384. To prevail on a claim for ineffective 17 assistance of counsel, “a defendant must establish that (1) counsel’s performance was 18 deficient, and (2) such deficiency resulted in prejudice against the defendant.” 19 Garcia, 2011-NMSC-003, ¶ 33. There is a strong presumption that a defendant’s

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1 counsel’s conduct “falls within the wide range of reasonable professional 2 assistance[.]” State v. Hunter, 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168 3 (internal quotation marks and citation omitted). “We review claims of ineffective 4 assistance of counsel de novo.” Garcia, 2011-NMSC-003, ¶ 33. 5 Indeed, Defendant’s argument as to the obvious similarity of this case to Ochoa 6 tends as much to indicate that defense counsel may have purposefully chosen to wait 7 until trial to open up the matter as to indicate that he was not competent. Given 8 (1) defense counsel’s failure to object to Detective Wright’s testimony about the 9 drugs; (2) the manner in which defense counsel questioned Detective Wright about his 10 motivation for initiating the stop in the presence of the jury and, after the court 11 sustained the State’s first objection, attempted to continue the same line of 12 questioning; and (3) the fact that he waited until trial was underway to raise the issue 13 of pretext under Ochoa, we conclude that defense counsel could well have been 14 employing a strategy through which he was attempting to influence the jury. It was 15 only when this attempt was thwarted by the district court sustaining the State’s 16 objections that Defendant’s counsel appeared to move from jury consideration to a 17 court ruling. And even then, he did not expressly ask for suppression of any evidence. 18 “As with other cases involving the tactical decisions of trial counsel in other contexts, 19 we do not wish to guess at what defense counsel was doing.” Gutierrez, 2005-

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1 NMCA-015, ¶ 20. Nor will we second guess defense counsel’s trial tactics or 2 strategy. State v. Gonzales, 113 N.M. 221, 230, 824 P.2d 1023, 1032 (1992). We 3 presume that defense counsel’s conduct fell “within the wide range of reasonable 4 professional assistance” and therefore provides no basis for reversal. Hunter, 2006- 5 NMSC-043, ¶ 13 (internal quotation marks and citation omitted). 6 CONCLUSION 7 We affirm. 8 IT IS SO ORDERED.

9 __________________________________ 10 JONATHAN B. SUTIN, Judge

11 WE CONCUR:

12 _________________________________ 13 RODERICK T. KENNEDY, Judge

14 _________________________________ 15 TIMOTHY L. GARCIA, Judge