July 17, 2019- State of New Mexico v. Sammy Pinon, No. A-1-CA-34120

OCR transcription for search; preserved printed pages are authoritative

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Court of Appeals of New Mexico
Filed 7/17/2019 9:22 AM

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO ark Reynolds

STATE OF NEW MEXICO,

Plaintiff-Appellee,
Vv. . No. A-1-CA-34120
SAMMY PINON,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Mark T. Sanchez, District Judge

Hector H. Balderas, Attorney General
Laura E. Horton, Assistant Attorney General
Santa Fe, NM
for Appellee
L. Helen Bennett, P.C.
Linda Helen Bennett
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
M. ZAMORA, Chief Judge.
43} Defendant Sammy J. Pinon appeals his conviction of retaliation against a
witness, contrary to NMSA 1978, Section 30-24-3 (1997). Defendant argues (1) the

district court violated his confrontation rights by admitting witness testimony from

the preliminary hearing; (2) there was insufficient evidence to support his conviction

1 without the preliminary hearing testimony; and (3) he received ineffective assistance
2 of coun~el at trial and on appeal. Unpersuaded, we affirm.
3 	{2} 	We review the merits of this case on remand from the New Mexico Supreme
4 Court, which issued a dispositional order of reversal. See State v. Pinon, No. S-1-
5 SC-36408, dee. (N;M. Sup. Ct. June 21, 2018) (non-precedential) (concluding this
6 Court has jurisdiction). 1 Because this is a memorandum opinion and the parties are
7 familiar with the facts and procedural history of the case, we reserve discussion of
8 the relevant facts for our analysis.
9 DISCUSSION
10 I.
11 	{3}
Admission of Preliminary Hearing Audio Tape
Abigail Balboa testified on behalf of the State at Defendant's preliminary
12 hearing. Ms. Balboa testified that she witnessed Defendant confront and hit her
13 	brother, Carlos Maldonado, who had served as a witness against Defendant in
14 another case. Subsequently, Ms. Balboa died before trial, and the State moved to
15 admit an audio tape of Ms. Balboa's testimony at Defendant's preliminary hearing
16 	in lieu of trial testimony, pursuant to Rule 11-804(B) NMRA. Defendant objected to
1
We note that although Defendant has completed the term of his sentence, we
reach the merits of this case because of the continuing "collateral consequences" of
Defendant's felony conviction. See State v. Sergio B., 2002-NMCA-070, ,1 1
10, 132
N.M. 	375, 	48 	P.3d 	764 (recognizing 	that 	an 	appellate 	court 	will 	review 	a
criminal conviction even after the defendant has completed his term of incarceration
"because of the continuing collateral consequences of a conviction"). Neither party
disputes this Court's authority to reach the merits on that basis.
2

1 the introduction of the audio tapes on the grounds that it violated his right to confront
2 Ms. Balboa. The district court granted the State's motion, 	and Ms. 	Balboa's
3 preliminary hearing testimony was played for the jury at trial.
4 {4} 	Defendant maintains that the admission of Ms. Balboa's preliminary hearing
5 testimony violates his right to confront a witness under Article II, Section 14 of the
6 New Mexico Constitution.2 Defendant further argues that Ms. Balboa's testimony
7 was "unreliable" and had "not been subject to rigorous 	cross[-]examination."
8 Defendant does not argue that the testimony was improperly admitted under an
9 exception to hearsay under Rule 11-804(B)(l) NMRA. Moreover, Defendant asserts
10 that if this Court agrees that Ms. Balboa's testimony was improperly admitted,
11 	without 	Ms. 	Balboa's 	testimony, 	there 	was 	insufficient 	evidence 	to 	convict
12 Defendant.
13 	{5} 	"Questions of admissibility under the Confrontation Clause are ques_tions of
14 law, which we review de novo." State v. Lopez, 2013-NMSC-047, 17, 314 P.3d 236
15 	(internal quotation marks and citation omitted). Article II, Section 14 of the New
2Although Defendant generally cites to our interstitial approach and implies
that the state constitution should provide greater protection, he fails to develop the
argument, and we will not develop it for him. See State v. Guerra, 2012-NMSC-O 14,
121, 278 P.3d 1031 (stating that appellate courts are under no obligation to:review
unclear or undeveloped arguments); State v. Leyva, 2011-NMSC-009, 1 49, 149
N.M. 435,250 P.3d 861 (stating that when a state constitutional provision has never
been interpreted as providing greater protections than its federal counterpart, the
proponent must make the arguments below necessary for the court to conduct an
interstitial analysis).
3

1 Mexico Constitution provides that a criminal defendant shall have the opportunity
2 to confront the witnesses against him. Our Supreme Court has determined that the
3 New Mexico Constitution tracks the wording of the Sixth Amendment of the United
4 States Constitution, and "[t]here is therefore no textual justification for interpreting
5 the two provisions inconsistently." Lopez, 2013-NMSC-047, 117; see also id. 121
6 ("conclud[ing] that there are no principled reasons for departing from federal
7 constitutional law[,]" and "hold[ing] that nothing in Article II, Section 14 of the New
8 Mexico Constitution requires affording constitutional confrontation rights at a
9 [preliminary] hearing"). The Confrontation Clause "prohibits the introduction of
10 testimonial hearsay unless the accused has had the opportunity to cross-examine the
11 	declarant." 	State 	v. 	Carmona, 	2016-NMCA-050, 	115, 	371 	P.3d 	1056 (citing
12 	Crawford 	v. 	Washington, 	541 	U.S. 	36, 	54 	(2004)). 	This 	Court 	has 	held
13 	that admission of a "testimonial" statement given by a witness under oath in a
14 preliminary 	hearing 	"does 	not 	violate 	the 	Confrontation 	Clause
15 	under Crawford where: (1) the witness is unavailable; and (2) the defendant had a
16 prior opportunity to cross-examine the statement that 	is 	now being offered into
17 evidence against him." State v. Henderson, 2006-NMCA-059, 1 16, 139 N.M. 595,
18 	136 P.3d 1005 (emphasis omitted).
19 	{6} 	Here, Ms. Balboa's testimony did not violate Defendant's confrontation right
20 	because both elements are met. Due to her death prior to Defendant's trial, Ms.
4

1 Balboa was "unavailable" as required by Rule 11-804(A)(4) (defining unavailability
2 to include death). In addition, Defendant had the opportunity to-and in fact did-
3 cross-examine Ms. B~lboa at the preliminary hearing. Therefore, the admission of
4 the former sworn testimony of Ms. Balboa was properly admitted. See Lopez, 2011-
5 NMSC-035, 1 12 (concluding that there was no Sixth Amendment Confrontation
6 Clause violation when the defendant had an opportunity to and actually did cross-
7 	examine the witness at the preliminary hearing). Although Defendant contends that
8 Ms. Balboa's testimony was "unreliable" and had "not been subject to rigorous
9 cross[-]examination[,]" such assertions misapprehend controlling case law. 	See
10 Henderson, 2006-NMCA-059, 1 13 (acknowledging abandonment of the United
11 	States Supreme Court's reliability test in Ohio v. Roberts, 448 U.S. 56, (1980), in
12 favor of the confrontation test articulated in Crawford, 541 U.S. 36);' Henderson,
13 	2006-NMCA-059,1 16 (setting out the standard for admission of a testimonial
14 	statement in a preliminary hearing). Therefore, we hold that the district court did not
15 	err in admitting Ms. Balboa's preliminary hearing testimony at trial.
16 	{7} 	Because Defendant's sufficiency of the evidence argument is predicated on
17 the absence of Ms. Balboa's testimony, we need not reach this argument in light of
18 	our above holding. Ms. Balboa's testimony, along with the other evidence pr¢sented
19 at trial, is sufficient to support Defendant's conviction.
5

1 II. 	Ineffective Assistance of Counsel
2 	{8} 	Defendant contends that he received ineffective assistance of counsel at trial
3 and on appeal. First, Defendant argues that his trial counsel was ineffective when he
4 (1) failed to object "adequately" to the introduction and use 	of Ms. Balboa's
5 preliminary hearing testimony, and (2) failed to "properly and thoroughly" impeach
6 Ms. Balboa. Specifically, Defendant asserts that trial counsel failed to impeach Ms.
7 Balboa's testimony by eliciting evidence that "[Ms.] Balboa was a chronic drug user
8 and was likely under the influence at the time of the incident and when she gave her
9 statement to 	... 	law enforcement; and ... 	[Ms.] Balboa's brother [Carlos]
10 Maldonado was in custody for voluntary manslaughter, which took place during an
11 	incident that also involved [Defendant]."
12 {9} 	"We review claims of ineffective assistance of counsel de novo." State v.
13 Dylan J., 2009-NMCA-027,, 33, 145 N.M. 719, 204 P.3d 44. To establish a prima
14 facie case of ineffective assistance, a defendant must show that: "( 1) counsel's
15 	performance fell below that of a reasonably competent attorney; (2) no plausible,
16 rational strategy or tactic explains counsel's conduct; and (3) counsel's apparent
17 failings were prejudicial to the defense." State v. Bahney, 2012-NMCA-039, , 48,
18 	274 P.3d 134; accord State v. Bernal, 2006-NMSC-050,, 32, 140 N.M. 644, 146
19 P .3d 289 ("For a successful ineffective assistance of counsel claim, a defendant must
20 first demonstrate error on the part of counsel, and then show that the error resulted
6

1 in prejudice."). "We indulge a strong presumption that counsel's conduct falls within
2 the wide range of reasonable professional assistance; that is, the defendant must
3 overcome the presumption that, under the circumstances, the challenged action
4 might be considered sound trial strategy." State v. Hunter, 2006-NMSC-043, 1 13,
5 140 N.M. 406, 143 P.3d 168 (internal quotation marks and citation omitted). "If any
6 claimed error can be justified as a trial tactic or strategy, then the error will not be
7 unreasonable." Bernal, 2006-NMSC-050, 132.
8 {to} 	Here, Defendant misconstrues the record since defense counsel did object to
9 the introduction of the preliminary hearing testimony as a violation of Defendant's
10 right 	to 	confrontation. 	Moreover, 	Defendant 	has 	not. overcome 	the 	strong
11 	presumption that his counsel's impeachment of Ms. Balboa might be considered
12 	sound trial strategy. Defense counsel may have exercised a particular strategy or trial
13 	tactic in deciding not to impeach Ms. Balboa with her brother's prior bad acts
14 	involving Defendant. See Henderson, 2006-NMCA-059, 1 10 (observing "the fact
15 	that the defendant chose not to further cross-examine the witness was a matter of
16 tactics"). Additionally, Defendant cites nothing in the record in support of his
17 allegation that Ms. Balboa was a "chronic drug user" or was under the influence at
18 the time of the incident or when she gave her statement to police. Based on our
19 review of the record, 	we 	see no evidence, and Defendant points us to none,
20 	demonstrating that trial counsel's conduct fell below that of a reasonably competent
7

1 attorney. Thus, we conclude that Defendant has not made a prima facie case that his
2 trial counsel was ineffective.
3 	{11} 	Second, Defendant also contends his appellate counsel was ineffective based
4 on counsel's actions in Defendant's prior appeal to this Court. The ineffective
5 assistance of appellate counsel was argued at the habeas corpus proceeding and
6 resulted in the current reinstated appeal. We do not reach Defendant's argument that
7 appellate counsel was ineffective because, pursuant to the district court's un-
8 appealed partial grant of habeas corpus, Defendant was granted the current appeal
9 as a remedy for lack of a meaningful appeal due to his appellate counsel's failures.
10 See State v. Garcia, _-NMCA-_,, 48 n.7, _ 	P.3d _ 	(No. A~l-CA-35812,
11 	May 23, 2019) (noting that by this Court reaching the merits of his appeal, the
12 defendant received "the remedy he was entitled to under the Sixth Amendment's
13 	right to effective assistance of counsel for appellate counsel's failure to perfect his
14 	original appeal"). He has not been limited to the issues briefed in his original
15 	docketing statement nor bound by this Court's original summary affirmance.
16 Because Defendant has given us no other reason to consider this argument further,
17 we decline to do so.
18 	CONCLUSION
19 	{12} 	For the aforementioned reasons, we affirm Defendant's conviction.
8

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13} ITISSO ORDERED.

Nee

- M. MONICA ZAMO

WE CONCUR:

——s ZS

ER L. ATTREP, Judge

ai a

RICHARD C. BOSSON , Judge Pro Tempore

Chief Judge