March 20, 2023- State of New Mexico v. Gregg Steele, No. A-1-CA-39869

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: Court of Appeals of New Mexico
Filed 3/20/2023 9:28 AM

Filing Date: March 20, 2023 A.
ed
No. A-1-CA-39869 Fe
Mark Reynolds
STATE OF NEW MEXICO,
Plaintiff- Appellee,
V.
GREGG STEELE,
Defendant- Appellant.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Jeffrey A. Shannon, District Court Judge

Raul Torrez, Attomey General

Launie Blevins, Assistant Attomey General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
MJ Edge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION	1
HANISEE, Judge.	2
{1} 	Defendant Gregg Steele appeals (1) his convictions for second degree murder,	3
contrary to NMSA 1978, Section 30-2-1(B) (1994), and tampering with evidence,	4
contrary to NMSA 1978, Section 30-22-5 (2003), as well as (2) the district court’s	5
denial of Defendant’s motion for a new trial. Defendant argues he was denied	6
effective assistance of counsel due to the district court’s adherence to applicable and	7
mandatory distancing restrictions issued by our Supreme Court in response to the	8
COVID-19 public health emergency. For the reasons that follow, we conclude	9
Defendant is unable to establish the prima facie case necessary to advance a claim	10
of ineffective assistance of counsel on direct appeal. Therefore, we affirm, but note	11
that nothing about our doing so prevents Defendant from more fully developing the	12
issue he presents in this appeal in future habeas corpus proceedings.	13
DISCUSSION	14
{2} 	Defendant argues the district court erred in denying his motion for a new	15
trial—and, consequently, challenges the validity of his convictions—because the	16
district court’s enforcement of public health orders, primarily the New Mexico	17
Supreme Court Order, In the Matter of Recommencing Jury Trials During the	18
COVID-19 Public Health Emergency, 20-8500-020 	(N.M. May, 28, 2020) (the	19
Supreme Court Order), in which our state’s highest court set forth procedures related	20

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to the recommencing of jury trials during the COVID-19 public health emergency, rendered	1
Defendant without effective assistance 	of 	counsel. 	See 	https://www.nmcourts.gov/wp-	2
content/uploads/2020/12/Order-No_-20-8500-020-Order-Recommencing-Jury-Trials-5-28-20-	3
2.pdf. Specifically, 	Defendant 	contends that one particular 	requirement of the	4
Supreme Court Order—namely that all individuals maintain a minimum distance of	5
six feet between one another—resulted in Defendant being unable to have privileged	6
communications with his trial counsel before and during trial.1 Defendant states that	7
such 	inability 	to 	maintain 	privileged 	communications 	with 	his 	trial 	counsel	8
precluded him from electing to testify in his own defense. Defendant claims as well	9
that the district court erroneously perceived and found the Supreme Court Order to	10
incorporate 	a 	determination 	that 	the 	ability 	to 	maintain 	attorney-client	11
communications before and during proceedings is not a prerequisite for effective	12
assistance of counsel.	13
{3} 	Defendant’s arguments broadly center on an assertion that the district court’s	14
adherence to the Supreme Court Order resulted in Defendant receiving ineffective	15
assistance of counsel. Indeed, the alleged deficiencies by his trial counsel arose	16
solely from compliance with the district court’s enforcement of the Supreme Court	17
1 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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Order. To the extent Defendant’s arguments challenge the propriety or legality of	1
the Supreme Court Order, we would decline to entertain such an inquiry as it should	2
instead be directed to our Supreme Court. See Alexander v. Delgado, 1973-NMSC-	3
030, ¶ 9, 84 N.M. 717, 507 P.2d 778 (“The general rule is that a court lower in rank	4
than the court which made the decision invoked as a precedent cannot deviate	5
therefrom and decide contrary to that precedent, irrespective of whether it considers	6
the rule laid down therein as correct or incorrect.” (internal quotation marks and	7
citation omitted)); see also N.M. Const. art. VI, § 3 (providing that our Supreme	8
Court is granted “superintending control over all inferior courts”); State v. Peru,	9
2022-NMCA-018, 	¶ 5, 508 P.3d 907 (holding there to be no error in the district	10
court’s interpretation and enforcement of a comparable Supreme Court order related	11
to proceedings during the COVID-19 public health emergency), cert. denied (S-1-	12
SC-39205). Here, though, we perceive ourselves faced not with a question regarding	13
the legality of the Supreme Court Order itself, but rather the effects of the Supreme	14
Court Order on Defendant’s right to effective assistance of counsel.	15
{4} 	To raise this issue, Defendant appeals the district court’s denial of his motion	16
for a new trial, which we review for abuse of discretion. See State v. Ferguson, 1990-	17
NMCA-117, 	¶ 4, 111 N.M. 191, 803 P.2d 676. Regarding Defendant’s broader	18
assertions 	of 	ineffective 	assistance 	of 	counsel, 	we 	reiterate 	that 	“[c]riminal	19
defendants are entitled to reasonably effective assistance of counsel under the Sixth	20

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Amendment of the United States Constitution.” State v. Crocco, 2014-NMSC- 016,	1
¶ 12, 327 P.3d 1068 (internal quotation marks and citation omitted). “To evaluate a	2
claim of ineffective assistance of counsel, we apply the two-prong test in Strickland	3
v. Washington, 466 U.S. 668, 687 (1984).” State v. Dylan J., 2009-NMCA-027, ¶ 36,	4
145 N.M.719, 204 P.3d 44. “That test places the burden on the defendant to show	5
that his counsel’s performance was deficient and that the deficient performance	6
prejudiced his defense.” Id.; see also Crocco, 2014-NMSC-016, ¶ 14 (“[A] prima	7
facie case [of ineffective assistance of counsel] requires [the d]efendant to establish	8
both elements of ineffective assistance, attorney error and prejudice.”).	9
{5} 	Here, Defendant contends that the district court’s order denying Defendant’s	10
motion 	for 	a 	new 	trial 	erroneously 	concludes 	that 	confidential, 	in-person	11
communication between a defendant and counsel before and during trial is not	12
necessary for effective assistance. Indeed, the parties do not disagree—and neither	13
do we—that the district court’s characterization 	of the Supreme Court Order as	14
concluding that trial communication between a defendant and their attorney is not	15
necessary to effective representation is mistaken. Nothing about the Supreme Court	16
Order makes any such suggestion. Taking this a step further, we express concern	17
regarding limitation on a defendant’s capacity to communicate with his trial counsel	18
in real time during proceedings. Nonetheless, the record here demonstrates that the	19
district court’s order arose from a trial in which Defendant was able to communicate	20

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with counsel, albeit 	in a manner constrained 	by method and proximity. 	The	1
proceedings in the district court reflect that Defendant and his counsel, while not	2
able to speak directly to one another during trial due to the Supreme Court Order	3
spacing requirements, were able to communicate during trial by exchanging written	4
notes. The district court directed Defendant and counsel to exercise caution when	5
passing such notes so as to avoid juror observation thereof, but that direction did not,	6
according to the record available to us, preclude Defendant and counsel from using	7
confidential written communication during trial. Further, Defendant and counsel	8
were able to communicate during pretrial preparations, although only virtually. The	9
record reflects that one such virtual meeting between Defendant and counsel was	10
conducted in the presence of jail staff, a point of concern, but we lack information	11
regarding the specific nature of that conversation or how it was limited in a manner	12
that the conversation could not be later revived outside the presence of jail personnel.	13
As well, during breaks from trial, Defendant and counsel were able to communicate	14
with one another in-person while outside the presence of the jury, but were required	15
to maintain the distancing and masking requirements of the Supreme Court Order	16
while doing so. These in-person communications during breaks from trial were	17
conducted in the presence of law enforcement officers, and counsel acknowledged	18
during the hearing on Defendant’s motion for a new trial that the officers were	19
present for security purposes.	20

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{6} 	Although we have no doubt that these limited means of communication	1
impeded counsel’s ability to freely communicate with Defendant to some degree,	2
such does not singularly render counsel deficient to the extent that establishes a	3
prima facie showing of ineffective assistance of counsel. See Crocco, 2014-NMSC-	4
016, ¶ 14. “A defense is prejudiced if, as a result of the deficient performance, there	5
was a reasonable probability that the result of the trial would have been different.”	6
Dylan J., 2009-NMCA-027, ¶ 38 (omission, internal quotation marks, and citation	7
omitted). Defendant fails to establish—and 	the record before us lacks as yet	8
sufficient development to demonstrate—a reasonable probability that the result of	9
the trial would have been different, and therefore fails to establish the requisite	10
prejudice necessary to a prima facie case of ineffective assistance of counsel. We	11
conclude that Defendant’s claims, as thus far developed, relate to the methods of and	12
diminished opportunity for communication with counsel and the investigators and	13
not the complete absence thereof, and under the circumstances set forth at the	14
hearing on the motion for new trial, we hold there to be no error of law in the district	15
court’s denial of a new trial on the basis of ineffective assistance of counsel.	16
Concluding there to be no underlying prima facie case of ineffective assistance of	17
counsel as presently developed in the trial record, we discern no abuse of discretion	18
by the district court related to its denial of Defendant’s motion for a new trial on that	19
basis.	20

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{7} 	As so often the appellate courts do, we emphasize that our holding in this	1
regard does not preclude Defendant from seeking an evidentiary hearing within a	2
habeas corpus proceeding, as such remains the best mechanism to develop specific	3
facts related to the claim. “[A] claim of ineffective assistance of counsel is best	4
addressed in a habeas corpus proceeding.” State v. Astorga, 2016-NMCA-015, ¶ 25,	5
365 P.3d 53. “Because the [district] court’s record may not adequately document the	6
sort of evidence essential 	to a determination 	of trial 	counsel’s 	effectiveness,	7
ineffective assistance of counsel claims are often better adjudicated through habeas	8
corpus proceedings.” 	State v. 	Miera, 	2018-NMCA-020, 	¶ 30, 	413 	P.3d 	491	9
(alteration, internal quotation marks, and citation omitted); see also Crocco, 2014-	10
NMSC-016, ¶¶ 13, 15 (explaining that because “an appellate court cannot determine	11
that 	trial 	counsel 	provided constitutionally 	ineffective 	assistance” 	without an	12
adequate record, “a claim of ineffective assistance of counsel should normally be	13
addressed in a post-conviction habeas corpus proceeding, which may call for a new	14
evidentiary hearing to develop facts beyond the record”).	15
CONCLUSION	16
{8} 	For the reasons stated above, we affirm.	17
{9} 	IT IS SO ORDERED.	18
______________________________	19
J. MILES HANISEE, Judge	20

WE CONCUR:
Megan P Duffy
MEGAN P. DUFFY, Judge
Katherine a. Wraz
KATHERINE A. WRAY, Judge
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