March 21, 2019- State of New Mexico v. Gabriel Montoya, No. A-1-CA-34632

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW-MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-34632
5 	GABRIEL MONTOYA,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Richard J. Knowles, District Judge
9 Hector H. Balderas, Attorney General
10 Marko D. Hananel, Assistant Attorney General
11 	Santa Fe, NM
12 for Appellee
13 	Bennett J. Baur, Chief Public Defender
14 Mary Barket, Assistant Appellate Defender
15 	Santa Fe, NM
16 for Appellant
17 	MEMORANDUM OPINION
18 	HANISEE, Judge.
19 {t} 	Defendant Gabriel Montoya appeals from his convictions following a jury
20 trial for armed robbery, conspiracy to commit armed robbery, aggravated burglary,
21 	and conspiracy to commit aggravated burglary. Defendant was sentenced to twenty-
22 six 	years 	of imprisonment, 	which 	includes 	two 	years 	of mandatory 	firearm
Court of Appeals of New Mexico
Filed 3/21/2019 10:17 AM
Mark Reynolds

1 enhancements 	of his 	sentences 	for 	armed 	robbery 	and 	aggravated 	burglary.
2 Defendant advances the following arguments on appeal: (1) his right to be free from
3 double jeopardy was violated by both of his conspiracy convictions as well as the
4 firearm enhancements to his sentences for armed robbery and aggravated burglary;
5 (2) the district court erred by not allowing a second substitution of defense counsel
6 shortly before trial; (3) the district court erred by not granting Defendant's request
7 for a continuance of the jury trial; (4) the district court erred· by excluding the
8 testimony of Defendant's father, Steven Montoya; (5) Defendant's right to effective
9 assistance 	of counsel 	was 	violated; 	(6) 	the 	district 	court 	erred 	by 	denying
10 Defendant's requested jury instruction concerning the unreliability of accomplice
11 	testimony; (7) the accomplice testimony offered by the State against Defendant was
12 insufficient to sustain his convictions; (8) the district court erred by denying
13 	Defendant's request for a mistrial because of an alleged mischaracterization by the
14 	State in its rebuttal closing argument; and (9) the district court's cumulative errors
15 	require reversal because Defendant was deprived of his right to a fair trial.
16 	{2} 	We agree that the State did not present evidence of separate conspiracies.
17 Accordingly, we remand this case to the district court with instructions that it vacate
18 	one of Defendant's conspiracy convictions and resentence Defendant accordingly.
19 For the reasons set forth herein, we are unpersuaded by Defendant's remaining
20 arguments and otherwise affirm.
2

1 BACKGROUND
2 	{3} 	Defendant, Leroy Lucero, and Harry Williams conspired to burglarize Lisa
3 and Tristan Hawkins' home, with which Defendant was familiar and believed
4 contained firearms, as well as a safe, cash, and tools. Dressed as a pizza delivery
5 person, Mr. Williams knocked on the Hawkins' front door. When Ms. Hawkins
6 answered the door and told Mr. Williams that she had not ordered pizza, Mr.
7 Williams asked her to help him verify the address he claimed to be his intended
8 destination. As Ms. Hawkins stepped outside to do so, Mr. Williams displayed a
9 firearm and ordered her to go back inside. Defendant, Mr. Williams and Mr. Lucero
10 then entered the house, ordered Ms. Hawkins to the floor, tied her up and covered
11 	her head with a jacket so she could not see.
12 	{4} 	When she denied having the keys to the safe and that there was cash in her
13 	house, the coconspirators pistol-whipped Ms. Hawkins. They then located and stole
14 thirty firearms, Ms. Hawkins' phone, cash, and debit cards, along with various tools
15 	and videos. Both Mr. Lucero and Mr. Williams were presented by the State as
16 witnesses during Defendant's trial.
17 	{5} 	Because this is a non-precedential opinion drafted to inform the parties of our
18 reasoning, we omit further factual discussion at this time and discuss only those
19 additional facts that are necessary to our analysis.
3

1 DISCUSSION
2 I. 	Double Jeopardy
3 	{6} 	We review Defendant's double jeopardy arguments de novo as a matter of
4 law. State v. Gallegos, 2011-NMSC-027, ·~ 51, 149 N.M. 704,254 P.3d 655. When
5 "factual issues are intertwined with the double jeopardy analysis, we review the trial
6 court's fact determinations under a deferential substantial evidence standard of
7 review." Id. (internal quotation marks and citation omitted). "The defense of double
8 jeopardy may not be waived and may be raised by the accused at any stage of a
9 criminal prosecution, either before or after judgment." NMSA 1978, § 30-1-10
10 (1963).
11 	A.
12
13 	{7}
One 	of Defendant's Conspiracy Convictions Must Be Vacated 	as a
Violation of Defendant's Right to Be Free From Double Jeopardy
The jury convicted Defendant of conspiracy to commit armed robbery and
14 conspiracy to commit aggravated burglary, among other crimes. As Defendant
15 	argues and the State concedes, under Gallegos, the State did not present evidence of
16 separate conspiratorial agreements as to each offense. See 2011-NMSC-027, ~~ 42,
17 	55, 56 (holding that there exists a "rebuttable presumption that multiple crimes are
18 the 	object 	of only 	one, 	overarching 	conspiratorial 	agreement" 	and 	that 	the
19 "presumption of singularity may [only] be overcome by [evidence] demonstrating
20 the existence of more than one conspiracy"). Given that the evidence presented by
21 	the State at trial indicated that both conspiracies were jointly planned, and the
4

1 ensuing acts of armed robbery and aggravated burglary were jointly carried out by
2 those conspirators, including Defendant, we agree.
3 {8} 	Gallegos further instructs that punishment should be imposed on the "single
4 remaining conspiracy at the level ofthe highest crime conspired to be committed[.]"
5 Id. 1 64 (internal quotation marks and citation omitted). Aggravated burglary and
6 armed robbery are both second degree felonies, 	so 	either one 	of Defendant's
7 conspiracy convictions may be vacated. We therefore remand this case to the district
8 court to vacate one 	of Defendant's conspiracy convictions and to resentence
9 Defet;1dant consistent with this determination.
B.
10 {9}
The Firearm Sentencing Enhancements Do Not Violate Defendant's
Right to Remain Free of Double Jeopardy
Defendant argues that separate, one-year enhancements of his convictions for
11 	armed robbery and aggravated burglary, imposed pursuant to NMSA 1978, Section
12 31-18-16(A) ( 1993 ), the firearm enhancement statute, violate double jeopardy
13 	because the same conduct, Defendant's use 	of a firearm, violates the statutes
14 criminalizing armed robbery and aggravated burglary and serves as the factual
15 	predicate for sentencing enhancement. However, as the State points out in its answer
16 brief, this same challenge to the firearm enhancement statute has been resolved
17 recently by our Supreme Court in State v. Baroz, 2017-NMSC-030, 1 20, 23, 404
18 P.3d 769, which evaluated the applicability of double jeopardy to separate firearm
19 enhancements for two convictions of aggravated assault with a deadly weapon
5

1 stemming from the defendant's unitary act of firing a gun. Baroz held that "the
2 Legislature 	intended 	to 	authorize 	greater 	punishment 	for 	noncapital 	felonies
3 committed with a firearm[,]" and as such individual firearm enhancements do "not
4 run afoul of double jeopardy." Id. 1 27. We therefore affirm the district court's
5 imposition of firearm enhancements to Defendant's sentences for armed robbery and
6 aggravated burglary.
7 II.
8
9 	{10}
The District Court Did Not Abuse Its Discretion by Denying a Second
Substitution of Defense Counsel
Defendant contends that the district court's refusal to allow substitution of
10 defense counsel shortly before trial deprived Defendant of his constitutional right to
11 	conflict-free counsel in light ofDefendant's attorney's (defense counsel) poor health
12 in the months prior to trial. The State counters that both defense counsel and the
13 	attorney willing to substitute for defense counsel agreed that a substitution was not
14 necessary, and that the district court did not abuse its discretion in denying the
15 	substitution. The State also argues that defense counsel's health does not bear the
16 capacity to constitute a "conflict" such that substitution was required. We affirm on
17 the basis that the district court did not abuse its discretion in denying the substitution
18 requested by Defendant.
19 A. 	Standard of Review
20 	{11} 	We review the district court's decision as to whether to appoint substitute
21 	counsel for abuse of discretion. State v. Lucero, 1986-NMCA-085, 121, 104 N.M.
6

1 587, 725 P.2d 266. Although an indigent defendant has the right to appointed
2 counsel, that right does not include the right to choose his attorney. Id. "In order to
3 dismiss the appointed counsel, a defendant must come forward and make a showing
4 that failure to appoint substitute counsel will result in ineffective representation or
5 prejudice to the defense." Id.
6 B. 	Analysis
7 	{12} 	In March 2014, approximately seven months before trial, the district court
8 permitted the withdrawal of two private attorneys based upon an unspecified actual
9 conflict of interest. The district court then directed that the Law Offices of the Public
10 Defender represent Defendant, and the following month defense counsel entered his
11 	first and only appearance for Defendant. In October 2014, and despite defense
12 counsel not having sought to withdraw, a separate public defender contract attorney,
13 	Christopher Knight, entered his appearance for Defendant.
14 	{13} 	During a pretrial conference attended by Defendant, defense counsel, and Mr.
15 	Knight, defense counsel informed the district court that the public defender's office
16 had notified him that he would no longer represent Defendant, possibly because
17 "[Defendant's] father had [spoken with the public defender's office] and made a
18 	convincing case for some problem that he had." Regarding his illness, defense
19 counsel stated that he had been diagnosed with meningitis in July 2014, which had
20 affected him "significantly" from July through September of that year. Defense
7

1 counsel stated, "I don't like [to] try to get off cases ... [u]nless there is a real conflict
2 that I can't resolve with a client." Defense counsel did not move to withdraw. At no
3 time did defense counsel claim an inability to prepare for or represent Defendant in
4 the November trial. Also during the conference, Mr. Knight acknowledged that he
5 was unprepared to try the case in less than a morith, that defense counsel's "file [was]
6 extremely well prepared" and "voluminous[,]" and that Mr. Knight saw no "major
7 conflict or any other reason to go ahead and suddenly do a reassignment of an
8 attorney."
9 	{14} 	The district court then asked Defendant ifhe had "any particular complaints"
10 with defense counsel's representation. Defendant stated three concerns: (1) defense
11 	counsel had not yet filed another motion to review conditions of release; 	(2)
12 Defendant heard from defense counsel's other clients that they were not satisfied
13 	and defense counsel's contact with them had been "very minimal"; and (3) on one
14 occasion defense counsel went to the Metropolitan Detention Center to meet with
15 	Defendant but had forgotten the file for one of Defendant's other cases. Defendant
16 	insisted that he was willing to remain in custody for another three or four months if
17 necessary so Mr. Knight would have time to prepare the case for trial.
18 	{15} 	Having noted earlier in the conference that that under Rule 5-107(B) NMRA,
19 district courts, and not defendants or the public defender's office, decide whether an
20 attorney on a given case may withdraw, the district court denied Defendant's request
8

1 for a second substitute counsel and ordered defense counsel to continue to represent
2 Defendant 	because 	there 	was 	no 	"legal 	basis 	for 	having 	[defense 	counsel]
3 withdraw." The district court reasoned that defense counsel did not move to
4 withdraw, and that while usually substitution of counsel is "liberally granted[,]" by
5 then the case had been pending over two years, within which there had been multiple
6 continued trial settings.
7 {16} 	We hold that the district court did not abuse its discretion in refusing to permit
8 substitution of defense counsel. Defendant's stated reasons for why he wanted a new
9 attorney in no way conveyed that defense counsel's continued representation would
10 result in ineffective assistance or prejudice to Defendant, or touched upon the subject
11 	of any 	actual 	conflict regarding defense 	counsel's 	ongoing representation 	of
12 Defendant. See State v. Bell, 1977-NMSC-013, 1 68, 90 N.M. 134, 560 P.2d 925
13 	(holding no tenable showing of abuse of discretion when no claim of inadequate
14 representation or prejudice to defense was made). The ongoing circumstance of
15 	Defendant's pretrial incarceration, along with defense counsel's representation of
16 other defendants and his isolated lapse in forgetting to bring a file on one occasion
17 when visiting Defendant in custody, are largely irrelevant to the inquiry of whether
18 the 	circumstances 	dictated 	a 	ruling, 	based 	on 	conflict, 	ineffectiveness 	of
19 representation, or prejudice, outside the range of discretion afforded the district
20 court. Combined with the district court's consideration of the long pendency of this
9

1 case and the multiple previous trial settings, we cannot conclude the district court
2 abused its discretion in denying a second substitution of defense counsel.
3 	{17} 	Given 	Defendant's 	failure 	to 	make 	specific 	record 	citations 	regarding
4 precisely how defense counsel's illness affected his representation of Defendant, see
5 State v. Lopez, 2018-NMCA-002,, 26,410 P.3d 226 (stating that in the absence of
6 citation to specific facts in the record, we will not search for them to support
7 generalized arguments), we only briefly address Defendant's argument that defense
8 counsel's health issues undermined his loyalty to Defendant, resulting in an actual
9 conflict of interest for which prejudice to Defendant is presumed, and that the
10 conflict prevented 	defense 	counsel 	from 	pursuing 	a viable 	defense 	strategy.
11 	Defendant relies on State v. Martinez, 2001-NMCA-059, 130 N.M. 744, 31 P.3d
12 	1018, and State v. Santillanes, 1990-NMCA-035, 109 N.M. 781, 790 P.2d 1062,
13 	both of which are distinguishable from this case. The conflict of interest in Martinez
14 was that the defense attorney had been implicated in the murder for which he was
15 	defending his client, 2001-NMCA-059, , 	27, while the conflict of interest in
16 Santillanes was that the defense attorney had jointly represented two brothers on the
17 same case, and "[b ]y attempting to establish a defense for co-defendant, trial counsel
18 was forced to abandon strategy that could have been used to exonerate defendant."
19 	1990-NMCA-035,, 10. Neither of these extreme circumstances exists in this case,
20 nor has Defendant provided a basis from which the presumption of prejudice can
10

1 anse 	based upon 	an 	actual 	conflict. 	We 	affirm the 	district court's 	denial 	of
2 Defendant's motion to substitute.
3 III.
4
5
6 {18}
Defendant Did Not Move to Continue the Jury Trial and Therefore Did
Not 	Preserve 	His 	Challenge 	That 	the 	District 	Court 	Committed
Reversible Error by Not Continuing Defendant's Trial
Defendant argues that the district court erred in not continuing his trial
7 because during a pretrial hearing defense counsel "appeared wholly unprepared and
8 unaware of the substance of witness testimony he potentially intended to rely upon."
9 He further contends that the district court erred by not clarifying whether Defendant
10 sought a continuance. The State counters that Defendant did not seek a continuance
11 	and that this claim of error was not preserved.
12 	{19} 	Our 	review 	of the 	record 	confirms 	that 	Defendant 	did 	not 	request 	a
13 	continuance prior to trial. Although defense counsel, during a pretrial hearing, twice
14 referenced the possibility of a continuance based on unrelated issues regarding trial
15 	witnesses, on neither occasion did he actually request one. First, regarding the fact
16 that the State had not interviewed several defense witnesses, defense counsel stated,
17 "I can ask for a continuance in the case to complete that part of the investigation, is
18 	one possible remedy to the situation. But the other possible way we could approach
19 it would be to attempt to at least get some of the most salient of ... these witnesses
20 available to the State prior to the beginning of the defendant's case and to not
21 	mention them in the opening." Second, when the State notified defense counsel that
11

1 it would not call the case agent to testify, defense counsel said, "[I]t appears that if
2 we're not going to continue the trial on the basis of this witness's unavailability ...
3 then our choice, really, is to move to suppress him[.]" The district court then pointed
4 out, "Nobody has asked me to continue [the trial]; I'm just mentioning that. So you're
5 going to move to suppress?" (Emphasis added.) Defense counsel responded, "Yes,
6 	[y ]our Honor."
7 	{20} 	Thus, since Defendant did not affirmatively seek a continuance of the trial
8 setting, the issue is unpreserved and we decline to address it further. See Rule 12-
9 321(A) NMRA ("To preserve an issue for review, it must appear that a ruling or
10 decision by the trial court was fairly invoked."). Nor is there any duty on the part of
11 	the district court to sua sponte continue the trial, and we reject Defendant's
12 contention that the district court should have done so or inquired in greater detail as
13 	to Defendant's position with regard to a trial continuance. See State v. Montoya,
14 	1993-NMCA-097, ,-r 19, 116 N.M. 297,861 P.2d 978 (declining to review the district
15 	court's denial of a motion for continuance because the trial record did not show that
16 	such a motion was made to the district court and stating "[t]here is no duty upon the
17 trial court to order a continuance when none has been requested.").
18 IV.
19
20 	{21}
The District Court Did Not Abuse Its Discretion by Excluding Steven
Montoya's Testimony
Defendant contends that the district court abused its discretion by excluding
21 	testimony from Defendant's father, Steven Montoya, who Defendant did not timely
12

1 disclose as a defense witness and whose proposed testimony the district court
2 determined to be inadmissible. Defendant argues that Mr. Montoya should have been
3 permitted 	to 	testify regarding 	his 	knowledge 	of Mr. 	Hawkins, 	whose 	home
4 Defendant 	and 	his 	coconspirators 	burglarized 	and 	who 	testified that he 	saw
5 Defendant and Mr. Lucero together at a gas station the morning of the robbery. The
6 State responds that Defendant twice attempted to provide proffers for Mr. Montoya's
7 testimony during trial, and that neither proffer included anything admissible or
8 related to Mr. Hawkins' motive to lie. Moreover, defense counsel could have, but
9 chose not to, cross-examine Mr. Hawkins about his motive to lie rather than hope to
10 call Mr. Montoya to testify later, so any error was harmless.
11 	A. 	Standard of Review
12 	{22} 	Admissibility of the testimony at issue is governed by Rules of Evidence, 11-
13 	403, 11-404, and 11-608 NMRA, a district court's application of which is reviewed
14 for an abuse of discretion. See State v. Torres, 2018-NMSC-013, ,r 58,413 P.3d 467
15 	(stating admissibility of evidence under Rule 11-608 "is left to the sound discretion
16 	of the trial court") (internal quotation marks and citation omitted); State v. Sena,
17 2008-NMSC-053, ,r 12, 144 N.M. 821, 192 P.3d 1198 (stating same regarding Rule
18 	11-404(B); State v. Sarracino, 1998-NMSC-022, i120, 125 N.M. 511, 964 P.2d 72
19 ("We review the admission of evidence under an abuse of discretion standard and
20 will not reverse in the absence of a clear abuse."). A court abuses its discretion when
13

1 it makes an evidentiary ruling that "is clearly against the logic and effect of the facts
2 and circumstances of the case" and "clearly untenable or not justified by reason."
3 State v. Samora, 2016-NMSC-03 l, ,r 37,387 P.3d 230 (internal quotation marks and
4 citation omitted).
5 	{23} 	"All relevant evidence is generally admissible, unless otherwise provided by
6 law[.]" State v. Balderama, 2004-NMSC-008, ,r 23, 135 N.M. 329, 88 P.3d 845.
7 "Evidence that reflects on a witness['s] credibility is relevant." State v. Johnson,
8 2010-NMSC-016, ,r 41, 	148 N.M. 50, 229 P.3d 523. "Any doubt whether the
9 evidence is relevant should be resolved in favor of admissibility." Balderama, 2004-
10 NMSC-008, ,r 23. Rule 11-403 instructs that evidence that is otherwise admissible
11 	may be excluded if its probative value is substantially outweighed by danger of
12 unfair prejudice, confusion of issues, waste of time, delay, or presentation of
13 	cumulative evidence. Rule 11-404(A){l) prescribes that "[e]vidence of a person's
14 character or character trait is not admissible to prove that on a particular occasion
15 	the person acted in accordance with the character or trait." Rule 11-404(A)(3) states
16 that "[e]vidence of a witness's character may be admitted under Rules 11-607, 11-
17 608, and 11-609 NMRA." Rule 11-607 instructs that "[a]ny party, including the
18 party that called the witness, may attack the witness's credibility." Lastly, pursuant
19 to 	Rule 	11-608(B)(l), 	cross-examination 	about 	specific 	instances 	of conduct
14

1 probative of the witness's character for truthfulness is generally admissible, although
2 extrinsic evidence is not admissible to prove such conduct.
3 B. 	Analysis
4 	{24} 	Pointing to very few specifics during trial or in his briefing on appeal,
5 Defendant argued at trial that Mr. Montoya would have testified that on one occasion
6 he 	observed 	Mr. 	Hawkins 	act 	"physically 	aggressive 	toward" 	Defendant 	at
7 Defendant's grandfather's home, which defense counsel argued was relevant to Mr.
8 Hawkins' "motivation to have [Defendant] charged and convicted in this case" and
9 amounted to 	a "potential grudge 	against 	[Defendant]." 	In his 	brie( in chief,
10 Defendant argues that Mr. Montoya wished to testify regarding Mr. Hawkins'
11 	"vindictiveness toward [Defendant,]" which related to his bias and motivation to lie,
12 and in his reply brief added Mr. Montoya would have testified that Mr. Hawkins
13 	believed Defendant to be having an affair with Ms. Hawkins.
14 	{25} . 	Based upon Rules 11-404(B), 11-405, and 11-608, the State sought exclusion
15 	ofMr. Montoya's testimony, which the State characterized as evidence of a "grudge"
16 that served as the basis for Mr. Hawkins' effort to have Defendant arrested. The State
17 argued that based on Defendant's proffer, Mr. Montoya's testimony was irrelevant
18 because it did not make "any matter at issue more or less ... probative or probable."
19 The State also argued that Mr. Montoya was disclosed late, and that during the
15

1 pretrial interview, Mr. Montoya stated he did not have anything relevant to say and
2 denied that there was anything specific about which he would testify.
3 {26} 	The district court ultimately excluded Mr. Montoya's testimony, not on
4 grounds of untimely disclosure as Defendant suggests, but because Mr. Montoya's
5 testimony was irrelevant under Rule 11-401 as extrinsic evidence concerning a
6 collateral matter, inadmissible under Rule 11-403 because it lacked probative value,
7 or if it had any probative value, it was minimal and "substantially outweighed by
8 confusion of the issues[,]" and thus inadmissible under Rule 11-404(A). 1
9 	{27} 	We conclude that the district court acted within its discretion when it
10 disallowed testimony from 	Mr. 	Montoya. 	Testimony that Mr. 	Hawkins acted
11 	aggressively toward Defendant on a single occasion was minimally relevant because
12 the testimony was not probative of Mr. Hawkins' grudge, his motive to lie, his
13 	credibility, or his character for truthfulness. Further, we agree with the district court
14 that the de minimis probative value of this testimony was substantially outweighed
15 	by the confusion of the issues it would cause and was therefore inadmissible under
16 Rule 11-403.
1
The district court also observed that it was defense counsel, and not the State,
that elicited the only "direct testimony from Mr. Hawkins that [Defendant] did
anything" when Mr. Hawkins testified on cross-examination that he "thought [of
Defendant] immediately" as the person who could have committed the robbery of
his home.
16

1 {28} 	We likewise conclude that Mr. Montoya's testimony was inadmissible under
2 Rule 11-608(B). Although the district court did not refer to Rule 11-608(B) in its
3 ruling, we may affirm the district court if it is right for any reason, and we therefore
4 briefly evaluate the exclusion under Rule 11-608(B). See State v. Patterson, 2017-
5 NMCA-045, ,-r 15,395 P.3d 543 (analyzing admissibility of evidence under Rule 11-
6 403 as alternative basis for its holding under right for any reason doctrine); see also
7 	Gallegos, 2007-NMSC-007, ,-r 26 (analyzing admissibility of evidence under theory
8 not argued below pursuant to right for any reason doctrine as long as doing so is fair
9 to 	appellant). 	Mr. 	Montoya's 	proposed testimony 	about Mr. 	Hawkins 	acting
10 aggressively toward Defendant on a prior occasion constitutes extrinsic evidence of
11 	a specific instance 	of Mr. 	Hawkins' 	conduct offered to 	attack Mr. 	Hawkins'
12 character 	for 	truthfulness, 	which Rule 	l l-608(B) 	expressly prohibits. 	See 	id.
13 	("Except for a criminal conviction under Rule 11-609 ... extrinsic evidence is not
14 admissible to prove specific instances of a witness's conduct in order to attack or
15 	support the witness's character for truthfulness.") The district court therefore did not
16 abuse its discretion in excluding Mr. Montoya's testimony.
17 {29} 	Defendant contends that "[r]egardless of whether [Mr. Montoya's testimony]
18 was excludable under the rules of evidence ... the New Mexico Supreme Court has
19 specifically recognized that the rules cannot limit a defendant'·s constitutional right
20 to challenge 'an opposing version of facts[,]'" quoting from State v. Johnson, 1997-
17

1 NMSC-036, 123, 123 N.M. 640, 944 P.2d 869. Defendant's reliance on Johnson is
2 misplaced, primarily because nothing in Mr. Montoya's proposed testimony bore the
3 capacity to directly challenge Mr. Hawkins' testimony or his credibility, and defense
4 counsel could have cross-examined Mr. Hawkins about any bias he had against
5 Defendant that might have affected his truthfulness. See id. 123 ("A defendant's
6 right 	of confrontation-with 	its protection of the right to cross-examine, test
7 credibility, detect bias, and otherwise challenge an opposing version of facts-is a
8 critical limitation on the trial court's discretion to exclude evidence a defendant
9 wishes to admit."). Defense counsel provided no explanation for his decision not to
10 cross-examine Mr. Hawkins regarding any possible motivation he might harbor to
11 	have Defendant wrongly charged and wrongly convicted.
12 {30} 	Moreover, Mr. Montoya's testimony was not, as Defendant argues, crucial to
13 	Defendant's theory of the case, because nothing in Mr. Montoya's testimony would
14 have suggested that Mr. Hawkins had a motive to lie about Defendant's involvement
15 	in the underlying crimes, and as the district court pointed out, defense co?,tnsel
16 elicited the only direct testimony from Mr. Hawkins on that topic. Mr. Montoya's
17 proposed testimony regarding a prior act of aggression by Mr. Hawkins also was not
18 	significant because both of Defendant's coconspirators testified in detail about
19 Defendant's involvement in the crimes being considered by the jury. Even if the jury
20 somehow believed that Mr. Hawkins' prior behavior was indicative of a preexisting
18

1 grudge, which then led Mr. Hawkins to lie about his suspicion of Defendant's
2 involvement, Mr. Hawkins was not the only witness that testified about Defendant's
3 involvement 	in the 	underlying 	crimes. 	The 	district court's 	exclusion 	of Mr.
4 Montoya's testimony 	did not violate Defendant's right 	of confrontation, 	and
5 accordingly we affirm.
6 V. 	Defendant 	Has 	Not 	Presented 	a 	Prima 	Facie 	Case 	of 	Ineffective
7 	Assistance of Counsel
8 {31} 	Defendant assyrts that defense counsel was ineffective for four reasons: (1) he
9 failed to impeach Mr. Hawkins with a prior criminal conviction; (2) he did not timely
10 disclose Steven Montoya as a witness and did not understand the "full extent" of his
11 	testimony until after most of the State's witnesses had testified; (3) he chose not to
12 call Ms. Lucero, Mr. Lucero's wife, to testify; and (4) defense counsel's ill health
13 	compromised his ability to effectively represent him. The State responds that the
14 district court's exclusion of Steven Montoya was not solely premised on his late
15 	disclosure 	and 	that Ms. 	Lucero's 	testimony 	would not have 	been 	useful 	to
16 Defendant, and thus there was no ineffective assistance of counsel. We review
17 appellate claims of ineffective assistance of counsel de novo. State v. 	Cordova,
18 	2014-NMCA-081,, 6,331 P.3d 980.
19 	{32} 	"The Sixth Amendment to the United States Constitution, applicable to the
20 states through the Fourteenth Amendment, 	guarantees 	defendants 	in 	criminal
21 	proceedings the right to effective assistance of counsel." Id. "Our Supreme Court
19

1 has 	expressed 	a 	preference 	that 	ineffective 	assistance 	of counsel 	claims 	be
2 adjudicated in habeas corpus proceedings, rather than on direct appeal." Id. ,r 7.
3 "Therefore, this Court will only remand a case for an evidentiary hearing if ~he
4 record on appeal supports a prima facie case of ineffective assistance of counsel."
5 Id.
6 	{33} 	A prima facie case of ineffective assistance of counsel requires a defendant to
7 establish that: "( 1) counsel's performance fell below that of a reasonably competent
8 attorney; (2) no plausible, rational strategy or tactic explains counsel's conduct; and
9 (3) counsel's apparent failings were prejudicial to the defense." Id. ,i 9; see also State
10 v. Bernal, 2006-NMSC-050, ,r 32, 140 N.M. 644, 146 P.3d 289 ("For a successful
11 	ineffective assistance of counsel claim, a defendant must first demonstrate error on
12 the part of counsel, and then show that the error resulted in prejudice."). To prove
13 	prejudice, a defendant "must demonstrate that counsel's errors were so serious, such
14 	[as] 	a 	failure 	of the 	adversarial process, 	that 	such errors 	undermine judicial
15 	confidence in the accuracy and reliability of the outcome." Bernal, 2006-NMSC-
16 050, ,r 32 (alteration, internal quotation marks, and citation omitted). If there is a
17 "reasonable probability" that "the result 	of the proceeding would have 	been
18 different" but for counsel's deficient performance, such a probability is "sufficient
19 to undermine confidence in the outcome." Lytle v. Jordan, 2001-NMSC-016, ,r 27,
20

1 130 N.M. 198, 22 P.3d 666 (quoting Strickland v. Washington, 466 U.S. 668, 694
2 (1984)).
3 	{34} 	We conclude that Defendant has failed to demonstrate prejudice, a deficiency
4 which is fatal to his claim of ineffective assistance of counsel. First, regarding
5 Defendant's assertion that defense counsel failed to impeach Mr. Hawkins with a
6 prior criminal conviction, the State preemptively raised the issue outside the
7 presence of the jury during trial, stating that while Mr. Hawkins had been a defendant
8 in a misdemeanor attempted receiving/transferring a stolen motor vehicle case, he
9 was not convicted and the matter had been resolved by use of a pre-prosecution
10 probation program, and thus the matter could not properly be used for impeachment
11 	purposes. Rule 11-609(A) requires evidence of a criminal conviction, and riot merely
12 evidence of a witness having been charged with a crime, to attack that witness's
13 	character for truthfulness. Here, defense counsel conceded that Mr. Hawkins had not
14 been convicted of attempted receiving/transferring a stolen motor vehicle, and on
15 	appeal failed to explain why Mr. Hawkins' criminal case was nonetheless usable for
16 	impeachment purposes. See State v. Guerra, 2012-NMSC-014, 121,278 P.3d 1031
17 (holding appellate courts are not obligated to review unclear or undeveloped
18 arguments).
19 {35} 	Second, 	because 	we 	have 	upheld 	the 	district 	court's 	ruling 	on 	the
20 inadmissibility of Mr. Montoya's testimony, any delay in the disclosure of his
21

1 identity as a witness could not have prejudiced Defendant. Third, defense counsel's
2 decision not to call Ms. Lucero as a witness was within the bounds of trial strategy
3 afforded to criminal defense attorneys. See Lytle, 2001-NMSC-016, ,r 43 (stating
4 that on appeal, we will not second guess the trial strategy and tactics of defense
5 counsel). We base this conclusion on Ms. Lucero's brief testimony, given outside
6 the presence of the jury, concerning a conversation the day of the robbery between
7 Defendant and Mr. Luc_ero regarding "drugs and [her] vehicle." Mr. Lucero told Ms.
8 Lucero that he agreed to give Defendant a ride to the Hawkins' house in exchange
9 for drugs. Ms. Lucero did not see Mr. Lucero and Defendant leave together, nor did
10 	she hear discussions 	about planning a kidnapping or robbery. 	Following her
11 	testimony, defense .counsel made the strategic decision not to call her to testify.
12 	{36} 	Last, as discussed previously, Defendant failed to demonstrate that he was
13 	prejudiced 	by 	defense 	counsel's 	health 	issues 	and 	alleged 	attendant 	lack 	of
14 preparation in the months prior to trial. While nothing in our decision today prevents
15 	Defendant from pursuing a future habeas corpus proceeding based on defense
16 counsel's constitutional effectiveness vis-a-vis his pretrial illness, we cannot make
17 a determination of prejudice in the first instance on the record before us. See State v.
18 	Crocco, 2014-NMSC-016, ,r 24, 327 P.3d 1068 ("If facts beyond those in the record
19 on appeal could establish a legitimate claim of ineffective assistance of counsel,
20 Defendant may assert it in a habeas corpus proceeding where an adequate factual
22

1 record can be developed for a court to make a reasoned determination of the
2 issues.").
3 	{37} 	Because Defendant has not shown that he suffered prejudice as a result of
4 defense counsel's representation, he has failed to establish a prima facie case of
5 ineffective assistance of counsel, as is required in order to prevail on this issue on
6 direct appeal. Accordingly, we decline to remand to the district court for an
7 evidentiary hearing. See State v. Castro, 2017-NMSC-027, 1135-36, 402 P.3d 688
8 (holding defendant's claim of ineffective assistance of counsel "more properly
9 brought through habeas corpus petition" because "there are insufficient facts in the
10 record" without defense counsel's "response to these contentions").
11 	VI.
12
13
14 	{38}
We Decline to Review Defendant's Argument That the District Court
Erred by Denying Defendant's Requested Jury Instruction Concerning
the Unreliability of Accomplice Testimony
We decline to review Defendant's argument that the district court erred by
15 	denying Defendant's requested jury instruction concerning the unreliability of
16 accomplice testimony for two reasons. First, the only supposedly binding authority
17 Defendant offers in support of his argument that Defendant was entitled to a jury
18 	instruction about the unreliability of accomplice testimony is Sarracino, 	1998-
19 NMSC-022. Defendant's reliance on this case is mystifying because it holds that a
20 defendant is not entitled to a jury instruction cautioning the jury to weigh accomplice
21 	testimony with greater care and caution than that of ordinary witnesses. Id. 11 8, 17.
23

1 {39} 	Second, Defendant asserts that he sought such a jury instruction in this case,
2 but fails to provide the text of that jury instruction or even a citation to the record
3 showing that the jury instruction was tendered and discussed by the parties during
4 trial. See Rule 12-318(A) NMRA (generally requiring record citations in appellant's
5 brief in chief in both the summary of proceedings and in support of appellant's
6 arguments). We are not obligated to comb the record in an attempt to find the
7 proposed jury instruction at issue and then independently ascertain whether this issue
8 was preserved for review, nor are we obligated to do Defendant's research. See
9 	Guerra, 2012-NMSC-014, ,r 21 (holding appellate courts are not obligated to review
10 unclear or undeveloped arguments); State v. Clifford, 1994-NMSC-048, ,r 19, 117
11 	N.M. 508, 873 P.2d 254 (reminding counsel that appellate courts are not required to
12 do the parties' research).
13 	VII. 	The Accomplice Testimony Offered Against Defendant Was Sufficient to
14 	Support His Convictions
15 	{40} 	Defendant challenges the sufficiency of his accomplices' testimony as the
16 primary basis upon which his convictions are supported. In so doing, Defendant
17 offers no argument for why that testimony was unreliable other than the allegation
18 that Mr. Williams and Mr. Lucero received "favorable pleas dependent upon their
19 testimony[.]" Defendant does not provide citation to the record in support of this
20 allegation or explain why Mr. 	Williams's and Mr. Lucero's pleas were more
21 	favorable than they would have been absent their agreement to testify against
24

1 Defendant. The State argues that Defendant impermissibly asks us to reweigh the
2 evidence, that Mr. Williams' and Mr. Lucero's testimony was consistent with the
3 statements they provided to law enforcement prior to entering into their plea
4 agreements, and that the jury had discretion to determine witness credibility.
5 A. 	Standard of Review
6 	{41} 	We review sufficiency of the evidence issues deferentially, viewing evidence
7 in "the light most favorable to the guilty verdict, indulging all reasonable inferences
8 and resolving all conflicts in the evidence in favor of the verdict." State v. Garcia,
9 2016-NMSC-034, 1 15, 384 P.3d 1076 (internal quotation marks and citation
10 omitted). 	We 	"determine 	whether 	substantial 	evidence 	of either 	a 	direct 	or
11 	circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt
12 with respect to every element essential to a conviction." Id. (internal quotation marks
13 	and citation omitted).
14
15
16
17
18
19
We will not invade the jury's province as fact-finder by second-
guessing the jury's decision concerning the credibility of witnesses,
reweighing the evidence, or substituting ~ts judgment for that of the
jury. So long as a rational jury could have found beyond a reasonable
doubt the essential facts required for a conviction, we will not upset a
jury's conclusions.
20 Id. ( alterations, internal quotation marks, and citation omitted).
25

1 B. 	Analysis
2 	{42} 	Other than his wish that this Court will do what it has repeatedly stated it will
3 not do-substitute our judgment for that of the jury-Defendant offers no basis to
4 conclude that the evidence of his guilt, even though presented most directly by Mr.
5 Williams and Mr. Lucero, is so unreliable as to be legally insufficient. First, both
6 witnesses were questioned at length during trial regarding their plea agreements and
7 their pre-plea agreement statements to detectives. Defense counsel cross-examined
8 Mr. Williams about the contours of his plea agreement, confirming that under his
9 plea agreement he faced nine years of incarceration exposure, which was less than
10 what he would have faced without the plea agreement. Defense counsel also cross-
11 	examined Mr. Lucero about his plea agreement, pointing out that he originally had
12 approximately 100 years of incarceration exposure on this case including mandatory
13 	enhancement based on his prior felony convictions, but ultimately ended up with six
14 years of incarceration exposure under his plea agreement.
15 	{43} 	Defendant cites only to State v. Brown, 1998-NMSC-037, ,, 16, 24, 126 N.M.
16 338,969 P.2d 313, in support of his argument that the accomplices' plea agreements
17 alone made their testimony unreliable. Brown, however, did not consider the issue
18 	of accomplice testimony through the prism of evidence sufficiency; instead, it
19 considered 	whether 	a 	defendant's 	due 	process 	rights 	were 	violated 	by 	an
20 impermissibly coercive immunity agreement for a testifying accomplice. Id. ,, 17-
26

1 24. The Brown court ultimately concluded that the accomplice testimony was not
2 inherently unreliable. Id. ,r 24. Brown is, therefore, distinguishable from the instant
3 case because it concerns use immunity, rather than whether a plea agreement renders
4 accomplice testimony inherently unreliable such that it cannot constitute substantial
5 evidence.
6 {44} 	Given that Mr. Williams and Mr. Lucero were extensively questioned by both
7 parties during trial regarding their cooperation and plea agreements, the jury was
8 free to weigh their credibility accordingly. See State v. Candelaria, 2019-NMSC-
9 004, ,r 45, 434 P.3d 297 ("The jury alone is the judge of the credibility of the
10 witnesses and determines the weight afforded to testimony.") (internal quotation
11 	marks and citation omitted). "[T]he testimony of a single witness is sufficient
12 evidence for a conviction." State v. Soliz, 1969-NMCA-043, ,r 8, 80 N.M. 297, 454
13 	P .2d 779. We will not otherwise reweigh the evidence the jury received. See Garcia,
14 2016-NMSC-034, ,r 15. We therefore affirm Defendant's convictions as supported
15 	by substantial evidence.
16 VIII. The District Court Did Not Err in Denying Defendant's Request for a
17 	Mistrial Due to the State's Alleged Mischaracterization in Its Rebuttal
18 	Closing Argument
19 {45} 	Defendant asserts that the prosecutor's 	statement in its rebuttal closing
20 argument that "the State ultimately, unbeknownst to [Mr. Lucero], dismissed [Ms.
21 	Lucero' s] case for lack of evidence[,]" prejudiced him to the extent that reversal and
27

1 a new trial are required because the statement "undermined one of [Mr. Lucero's]
2 possible motiv~s to plead guilty and testify against [Defendant]." The State responds
3 that there was no misstatement or misrepresentation, but also that if there was, it was
4 not prejudicial to Defendant. The State also argues that "[i]t is not at all clear that
5 the prose~utor's comments" implied "that [Ms. Lucero's] charges were dismissed
6 before [Mr.] Lucero pled," which the State concedes would have been improper.
7 Additionally, the State asserts that the prosecutor's statement was supported by the
8 evidence adduced at trial because the State dismissed Ms. Lucero's case prior to trial
9 and Mr. Lucero testified that he did not know about the disposition of those charges.
10 A. 	Standard of Review
11 	{46} 	We review a motion for a mistrial for abuse of discretion. State v. Smith, 2016-
12 NMSC-007, ,r 69,367 P.3d 420. "The power to declare a mistrial should be exercised
13 	with the greatest caution." Id. 	(alteration, internal quotation marks, and citation
14 omitted). "An argument for mistrial must show that the error committed constituted
15 	legal 	error, 	and the 	error was 	so 	substantial 	as 	to 	require 	a new trial." 	Id.
16 Additionally, "we afford trial judges broad discretion in managing closing argument
17 because they are in the best position to assess the impact of any questionable
18 	comment." State v. Sena, 2018-NMCA-037, ,r 13, 419 P.3d 1240, cert. granted,
19 	2018-NMCERT-_ (No. S-1-SC-36932, May 25, 2018) (internal quotation marks
20 and citation omitted). "The prosecution has . . . wide latitude during closing
28

1 arguments[,]" but "[a] prosecutor's remarks must ... be based on the evidence or
2 made in response to the defendant's arguments." Id.
B. 	Analysis
3 	{47} 	During Defendant's closing argument, defense counsel stated, "It's funny
4 because in [Mr. Lucero's plea agreement listing coconspirators], [Ms.] Lucero is left
5 out. But here in [Mr. Williams's plea agreement], Ms. Lucero is in there. 	So
6 everything is basically just manipulated for the State to get what it's trying to get,
7 which is a conviction on [Defendant]. They take Ms. Lucero out for Mr. Lucero and
8 the admission of conspiracy." Defense counsel continued, "And I'm talking about
9 	[Ms.] Lucero, who is alleged to be part of this conspiracy, did not come in here and
10 tell you that [Defendant] was the one involved in this conspiracy, who did this." The
11 	entirety of the prosecutor's statement in rebuttal closing that is now the subject of
12 this appeal is the following: "But the defense did actually tell you that [Mr. Lucero]
13 	was lying and made a lot of the fact that [Ms. Lucero] wasn't brought here to testify,
14 and there was no agreement for [Mr. Lucero] to testify against [Ms.] Lucero. Now,
15 	what you did hear was that the State ultimately, unbeknownst to Mr. Lucero,
16 dismissed her case for lack of evidence."
17 	{48} 	Defendant objected that Ms. Lucero's case was dismissed "after [Mr. Lucero]
18 pled." The district court overruled the objection, but instructed the jury that what the
19 attorneys say during closing arguments is "not evidence" and that they would "be
29

1 the ultimate judge of the facts[,]" and if they remembered something differently than
2 the attorneys, the jury should "go with [their] memories." After closing arguments
3 when the jury was deliberating, Defendant moved for a mistrial, arguing that the
4 State's statement "causes extreme prejudice to the defendant, because it undermines
5 the credibility of our closing . . . [a]nd ... gives the jury the impression that a key
6 motivation for Mr. Lucero to lie was not present when he ... entered into his plea
7 agreement and made this admission of conspiracy." The district court denied
8 Defendant's motion for a mistrial, stating that "the jury was cautioned a number of
9 times, that what [the] attorneys say is not evidence, [and] what they need to do is
10 rely on their memories 	of the testimony[.]" The district court concluded that
11 	Defendant was not prejudiced to the extent Defendant argued.
12 {49} 	It is not clear to us whether the prosecutor's statement during rebuttal closing
13 	argument implied that the State dismissed Ms. Lucero's case before Mr. Lucero
14 entered into his plea agreement. Regardless, Defendant has not shown that he was
15 prejudiced by the prosecutor's statement, much less that he was prejudiced so
16 substantially that the district court abused its considerable discretion in denying
17 Defendant's motion for a mistrial. Even if the jury believed that Ms. Lucero's case
18 was dismissed before Mr. Lucero accepted his plea agreement, Mr. Lucero testified
19 and the State reiterated that Mr. Lucero did not know what the ultimate disposition
20 	of Ms. Lucero' s case was, much less that the State had dismissed her case shortly
30

1 before trial. Because he did not know the status of Ms. Lucero's case, Mr. Lucero
2 could not have been motivated to lie during his testimony in order to obtain favorable
3 treatment of his wife's criminal case. The district court's instruction that the
4 attorneys' argument was not evidence and that the jury should rely on their own
5 memories of the evidence was therefore sufficient to cure any possible prejudice
6 resulting-from the prosecutor's statement, to the extent that any such prejudice exists.
7 See State v. Storey, 2018-NMCA-009, 160, 410 P.3d 256 ("The trial court is given,
8 and must exercise, considerable discretion in evaluating the propriety of argument
9 and in curing any alleged defects."), cert. denied, _-NMCERT-_ (No. S-l-SC-
10 36695, Oct. 31, 2017). We conclude that to the extent the prosecutor's statement was
11 	improper, Defendant was not prejudiced because of it, and therefore the district court
12 did not abuse its discretion in denying Defendant's motion for a new trial.
13 	IX. 	Cumulative Error
14 	{50} 	Defendant argues that "the combined effect" of all of the district court's errors
15 	requires reversal. In the absence of any error, much less multiple errors, we disagree,
16 and conclude that there was no cumulative error.
17 CONCLUSION
18 	{51} 	For the aforementioned reasons, we affirm Defendant's convictions for armed
19 robbery, conspiracy to commit armed robbery, aggravated burglary, and conspiracy
20 to commit aggravated burglary. We remand with instructions that the district court
31

1 vacate one of Defendant's convictions for conspiracy and to resentence DefendantI
2 accordingly.
3 	{52}
4
5
IT IS SO ORDERED.
6 WE CONCUR:
7 	t("-~8 KRITINA BOGARDUS, Judge
LINE R. MEDINA, Judge
J. MILES HANISEE, Judge
32