July 30, 2009 – State of New Mexico v. Aragon, No. 27,615

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: __________	2
Filing Date: __________	3
NO. 27,615	4
STATE OF NEW MEXICO,	5
Plaintiff-Appellee,	6
v.	7
MARTIN ARAGON,	8
Defendant-Appellant.	9
APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY	10
John W. Pope, District Judge	11
Gary K. King, Attorney General	12
Santa Fe, NM	13
Max Shepherd, Assistant Attorney General	14
Albuquerque, NM	15
for Appellee	16
Hugh W. Dangler, Chief Public Defender	17
Mary A. Barket, Assistant Appellate Defender	18
Santa Fe, NM	19
for Appellant	20

OPINION	1
CASTILLO, Judge.	2
{1} 	Defendant was convicted on one count of child abuse resulting in great bodily	3
harm. 	On appeal, he challenges the effectiveness of his trial counsel on several	4
grounds. 	Based on counsel’s failure to interview the State’s experts and obtain or	5
consult with an expert, we hold that Defendant has made a prima facie case for	6
ineffective assistance of counsel. We remand those two issues to the trial court for	7
further factual development in an evidentiary hearing. We further hold that Defendant	8
failed to make a prima facie case for ineffective assistance of counsel on the remaining	9
claims.	10
I. 	BACKGROUND	11
{2} 	On December 30, 2004, Defendant was indicted by grand jury on one count of	12
abuse of a child resulting in great bodily harm, contrary to NMSA 1978, Section 30-6-	13
1 (2004) (amended 2005). 	The indictment arose from the events of December 8,	14
2004. On that day, it is undisputed that Defendant was left alone with Child, who was	15
Defendant’s four-month-old son. When Child’s mother returned an hour and a half	16
later, Defendant met her outside. 	He told her that Child appeared to have been	17
choking and that he shook Child in an attempt to resuscitate him. Child’s condition	18
deteriorated overnight, and he was taken to a clinic the following day. Mother told	19

2
the doctor at the clinic, Dr. Olmstead, that Child’s eighteen-month-old brother had	1
fallen onto Child.	2
{3} 	Dr. Olmstead testified that she evaluated Child and that while in her presence,	3
Child suffered a seizure and stopped breathing. 	Dr. Olmstead then called for	4
emergency transport because she was “concerned about . . . [the] imminent death if	5
this child did not receive treatment as soon as possible.” Child was transported to the	6
University of New Mexico Hospital, where Dr. Coleman took over Child’s care.	7
{4} 	Dr. Coleman testified that Child’s injuries included extensive brain injuries, rib	8
fractures, spinal cord and neck injuries, and a femur fracture; that the rib fractures	9
predated the other injuries and were between ten and fourteen days old; and the	10
remaining brain, spinal, and neck injuries had been inflicted more recently—and were	11
between twenty-four and seventy-two hours old; and that the femur fracture could not	12
be dated. We will refer to the rib fractures as the “old injuries” and the remaining	13
injuries—excepting the femur fracture—as the “new injuries.” 	Based on her	14
evaluation of all of Child’s injuries, Dr. Coleman called Dr. Campbell, who was a	15
member of the child abuse response team. Dr. Campbell concluded that Child “had	16
injuries that were diagnostic of abuse.”	17
{5} 	When Mother was initially interviewed by a police detective, she told him the	18
same story that she had told Dr. Olmstead. Eventually, however, Mother changed her	19

3
story and told the police that Defendant had admitted to shaking Child. She also told	1
the detective that Defendant had prevented her from seeking help for Child.	2
Defendant was arrested during the following week, was arraigned on January 13,	3
2005, and pled not guilty to the charge. On January 18, 2005, an attorney who was	4
on contract with the public defender department was appointed as counsel for	5
Defendant.	6
{6} 	Defendant waived his right to a jury trial and was tried by the court on October	7
31, 2005, and November 1, 2005. The State presented the expert testimony of three	8
doctors. Defendant put on no expert testimony. Defendant was convicted, and the	9
trial court imposed a mandatory 18-year sentence. Defendant appeals.	10
II. 	DISCUSSION	11
{7} 	Defendant argues that his counsel was ineffective because she (1) failed to	12
interview the State’s medical experts, (2) failed to consult with or retain a defense	13
expert, and (3) failed to file a motion to mitigate the length of his sentence. Defendant	14
also argues that certain rulings by the trial court rendered his counsel ineffective,	15
based on the reasoning in State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176	16
P.3d 1105.	17
{8} 	Claims of ineffective assistance of counsel are mixed questions of law and fact,	18
which we review de novo. State v. Martinez, 2007-NMCA-160, ¶ 19, 143 N.M. 96,	19

4
173 P.3d 18. Because Defendant raises the issue for the first time on appeal, he must	1
establish a prima facie case for ineffective assistance in order for this Court to remand	2
the matter to the trial court for an evidentiary hearing. 	See State v. Bernal, 2006-	3
NMSC-050, ¶ 33, 140 N.M. 644, 146 P.3d 289. 	“A prima facie case is made out	4
when: (1) it appears from the record that counsel acted unreasonably; (2) the appellate	5
court cannot think of a plausible, rational strategy or tactic to explain counsel’s	6
conduct; and (3) the actions of counsel are prejudicial.” 	State v. Herrera, 2001-	7
NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (internal quotation marks and citation	8
omitted). We begin by addressing counsel’s actions and inactions, and then we turn	9
to the rulings of the trial court.	10
A. 	Counsel’s Actions	11
1. 	Medical Experts	12
a. 	Unreasonableness and the Strategic or Tactical Basis for	13
Counsel’s Actions	14
{9} 	We first consider whether defense counsel acted unreasonably and without a	15
strategic or tactical basis when she failed to interview the State’s experts and retain	16
or consult with an expert for Defendant. See Herrera, 2001-NMCA-073, ¶ 36. There	17
is no dispute that defense counsel failed to conduct pre-trial interviews of the State’s	18
experts. The record provides no tactical or strategic basis for this failure, as the expert	19
testimony was critical to proving the State’s case. Defense counsel was appointed on	20

5
January 18, 2005. On February 23, 2005, the State filed a witness list, which included	1
Dr. Campbell, one of the State’s experts. The record shows that the State contacted	2
defense counsel to schedule the interviews as early as April 2005 and that defense	3
counsel did not respond. On August 30, 2005, the State provided defense counsel	4
with the phone number of the primary expert—apparently not for the first time. The	5
email exchanged between defense counsel and the State establishes that the State did	6
not promise to arrange for the interviews but instead made clear that such was the	7
responsibility of defense counsel. 	By her own admission, defense counsel did not	8
speak with Dr. Campbell until late October—in the week before trial, and that	9
interview was a phone conversation instead of an interview or deposition.	10
{10} 	On August 10, 2005, the State filed an amended witness list, which included	11
two additional doctors. Defense counsel did not contact those witnesses in the two	12
months prior to trial. Defense counsel asserted that she was waiting for the State to	13
set up contact. 	In arguing for more time, defense counsel stated that “it’s a state	14
witness, it’s an expert, and it seems to me only fair that they should provide them to	15
me.”	16
{11} 	It is undisputed that throughout the pretrial process, Defendant possessed a list	17
of witnesses and a means of contacting those witnesses. 	Such is the State’s sole	18
obligation under Rule 5-501(A)(5) NMRA. 	We further observe that Defendant	19

6
provides no authority for the proposition that it is the State’s responsibility to actually	1
arrange the interviews. Absent an agreement between the parties, we will not impose	2
an independent duty on the State to act as a scheduler. 	Cf. State v. Johnson, 2007-	3
NMCA-107, ¶¶ 22, 32, 142 N.M. 377, 165 P.3d 1153 (acknowledging that when the	4
state agrees to arrange interviews, it has an obligation to follow through). We turn	5
next to consider whether, based on the theory of defense, there was a reasonable trial	6
strategy to justify defense counsel’s failure to retain or consult with an expert.	7
{12} 	There are two aspects to Defendant’s claim relating to the failure to obtain an	8
expert. First, given the importance of expert medical testimony to proving the State’s	9
case, we note that Defense counsel filed a motion for a continuance in May 2005,	10
indicating that “[a]dditional time is needed to fully investigate this case and to obtain	11
an expert witness for the defense.” Later, counsel suggested that an expert would be	12
helpful in her review of medical documents. Regardless of any need or intention to	13
do so, no expert was retained—or apparently even consulted. 	Second, Defendant	14
asserts ineffective assistance because no experts were retained to testify on his behalf.	15
While we have generally held that Defendant has not been prejudiced by such inaction	16
in absence of availability of a witness, expert testimony was the crux of this case. See	17
State v. Crain, 1997-NMCA-101, 124 N.M. 84, 946 P.2d 1095; see also State v.	18
Hernandez, 115 N.M. 6, 846 P.2d 312 (1993).	19

7
{13} 	It was not contested at trial, nor is it contested on appeal, that Defendant shook	1
Child 	on 	December 	8, 	2004. 	Defendant’s 	theory 	at 	trial 	was 	that 	earlier	2
injuries—caused by someone else—were exacerbated by his actions on December 8.	3
In particular, Defendant pointed out that there was no evidence, apart from the	4
timeline of events, to establish that he shook Child with the force that the State’s	5
medical experts testified would have been necessary to cause Child’s new injuries.	6
Because there were no witnesses to Defendant’s actions on December 8, Defendant	7
asserts that his case depended on his credibility and on expert testimony to establish	8
a factual basis for Defendant’s theory that Child’s new injuries stemmed from reinjury	9
or 	exacerbated 	existing 	injuries. 	See 	Schoonmaker, 	2008-NMSC-010, 	¶ 	33	10
(explaining that because there were no witnesses to the incident, expert testimony	11
“was critical to the defense to call into question the [s]tate’s expert opinions that [the	12
c]hild’s injuries could only have been caused by shaking of a violent nature”).	13
{14} 	The State argues that defense counsel’s failure to retain an expert witness was	14
tactical because “she was going to base the defense not on challenging [the scientific]	15
facts but on establishing that Defendant did not [injure Child].” We are unpersuaded.	16
As the State itself points out, “there was no evidence admitted at trial that anyone but	17
. . . Defendant was with [Child] when the injuries occurred on the afternoon of	18
December 8, 2004.” Thus, the primary evidence that ties Defendant to the injuries is	19

8
timing—Mother testified that Child was fine before she left him with Defendant and	1
that Child was injured when she returned. 	Defendant could not refute the State’s	2
timing evidence without medical testimony to question the causation of Child’s	3
injuries and suggest that Child had been injured earlier, before Child was in his care,	4
but that the symptoms of the injuries did not noticeably manifest until a later time.	5
We see no tactical reason not to employ a medical expert in an attempt to substantiate	6
Defendant’s theory. In addition, nothing in the record indicates that defense counsel	7
was evaluating whether to call an expert.	8
{15} 	It is not necessary for us to address the retention of a testifying expert. Defense	9
counsel, in her motion for continuance, pointed out that a consulting expert would be	10
useful to help prepare the case by explaining the medical reports that had recently	11
been received. 	We agree that a consulting expert was necessary to understand the	12
nature of the State’s evidence and to prepare an adequate defense. 	The failure of	13
defense counsel to retain any sort of expert in the months prior to trial allows us to	14
reach our conclusion. Thus, based on her failure to engage an expert for consultation,	15
combined with her failure to conduct adequate pre-trial interviews of the State’s	16
experts, we conclude that defense counsel acted unreasonably and without any	17
strategic or tactical justification. Defendant has established two of the three criteria	18
required to demonstrate a prima facie case of ineffective assistance for counsel. See	19

9
Herrera, 2001-NMCA-073, ¶ 36. We now turn to consider the final factor: whether	1
Defendant was prejudiced by defense counsel’s errors.	2
b. 	Prejudice	3
{16} 	A defendant must demonstrate that his counsel’s errors prejudiced his defense	4
such that there was “a reasonable probability that the outcome of the trial would have	5
been different.” State v. Reyes, 2002-NMSC-024, ¶ 48, 132 N.M. 576, 52 P.3d 948.	6
Defense counsel’s own lack of diligence resulted in failure to adequately interview the	7
State’s experts or consult with an expert to prepare for trial. These failings in turn	8
resulted in an inability to present Defendant’s theory through effective cross-	9
examination of those experts. See Lytle v. Jordan, 2001-NMSC-016, ¶ 34, 130 N.M.	10
198, 22 P.3d 666 (determining that adequate cross-examination eliminated a	11
“reasonable probability that consultation with experts would have affected the	12
outcome of the trial”). Counsel then did not remedy these initial failings by engaging	13
an expert to explain Defendant’s theory at trial, thus eliminating his only line of	14
defense to the State’s charges.	15
{17} 	After the parties made their closing arguments, the trial court ruled from the	16
bench with the following comments:	17
The, undisputed evidence that basically is that, there, that [C]hild	18
was, was okay when he was left in the charge of [Defendant], and when	19
[C]hild’s mother came back, [C]hild manifested all the symptoms that	20
the doctors said were indicative of child abuse and shaken baby	21

10
syndrome.	1
It does concern the [c]ourt, it’s kind of, that there, (indiscernible)	2
that there are two discrete, at least two discrete child abuse injuries, but	3
we’ll, we’ll know, we’ll obviously not know about what caused the first	4
one. But we do, I think under the evidence that we have at hand, beyond	5
a reasonable doubt know what caused the second injury.	6
Based on the evidence presented, the trial court concluded that the timeline	7
demonstrated that Defendant must have caused the new injuries. Accordingly, there	8
is a reasonable probability that the outcome of the trial would have been different had	9
defense counsel engaged an expert to substantiate the defense theory—that the injuries	10
manifested on December 8 were actually inflicted on an earlier date by another person.	11
Although the failure to retain a defense expert will not establish in every case the	12
prejudice necessary to make a claim for ineffective assistance of counsel, under the	13
facts of the present case it is clear that without an expert to either assist in trial	14
preparation or to testify on Defendant’s behalf, Defendant was deprived of his only	15
avenue of defense.	16
{18} 	The State argues that Defendant suffered no prejudice because non-expert	17
testimony undercut his defense theory. In support of this argument, the State points	18
out that Defendant admitted to shaking Child and argues that no expert would have	19
been able to refute Defendant’s admission or “the undisputed evidence of Defendant’s	20
consciousness of guilt.” This argument assumes that all experts would agree that any	21
amount or type of shaking would cause the injuries that Child suffered. Defendant’s	22

11
theory was that although he shook Child, he did not do so in a violent enough manner	1
to cause Child’s new injuries and that the new injuries were the result of someone	2
else’s earlier actions. This theory—if it had been supported by evidence—could have	3
survived Defendant’s admission that he shook Child. 	Further, the theory is not	4
undone by the evidence that Defendant hid from the police—it was undisputed that	5
Defendant knew he had done something wrong. 	The State would still have been	6
required to prove that Defendant’s wrongdoing was specifically the cause of Child’s	7
extensive new injuries.	8
c. 	Prima Facie Case	9
{19} 	Having determined that defense counsel’s actions were unreasonable and had	10
no strategic or tactical purpose and that those actions prejudiced Defendant, we hold	11
that Defendant has established a prima facie case for ineffective assistance.	12
{20} 	Defendant argues that based on these prejudicial errors, we should remand his	13
case for a new trial. We disagree. Generally, we prefer that claims for ineffective	14
assistance of counsel be brought by habeas petition. State v. Grogan, 2007-NMSC-	15
039, ¶ 9, 142 N.M. 107, 163 P.3d 494. Nevertheless, “New Mexico appellate courts	16
frequently remand claims of ineffective assistance of counsel brought on direct appeal	17
for further evidentiary hearings” because “the record before the trial court may not	18
adequately document the sort of evidence essential to a determination of trial	19

12
counsel’s effectiveness.” Id. (internal quotation marks and citation omitted). In the	1
past, we have required a defendant to show that an expert would have been—not could	2
have been—available to testify at trial. See Crain, 1997-NMCA-101, ¶ 33. On cross-	3
examination, Defendant referred to a number of medical studies to establish that his	4
defense theory is not without support in the medical community. 	Based on our	5
catalogue of defense counsel’s failures and inactions, it would be impossible for the	6
current record to demonstrate that an expert was actually available to testify in this	7
regard. On the other hand, it would be futile to remand the matter for a new trial if no	8
expert is available to bear out Defendant’s theory. 	Accordingly, an evidentiary	9
hearing is appropriate to explore these issues. See State v. Paredez, 2004-NMSC-036,	10
¶¶ 22, 24, 136 N.M. 533, 101 P.3d 799 (remanding for an evidentiary hearing in part	11
because “the record indicate[d] . . . a distinct possibility” that the defendant’s attorney	12
acted unreasonably and that those actions resulted in prejudice to the defendant). We	13
remand for the trial court to conduct an evidentiary hearing regarding defense	14
counsel’s failure to interview the State’s expert witnesses and failure to consult with	15
or retain an expert.	16
2. 	Motion to Mitigate	17
{21} 	Defendant also argues that his counsel was ineffective because she failed to file	18

13
a motion setting forth mitigating factors. As we have stated, in evaluating a direct	1
appeal based on ineffective assistance of counsel, we consider whether defense	2
counsel acted unreasonably, whether counsel’s actions can be justified by trial strategy	3
or tactics, and whether the defendant was prejudiced by counsel’s unjustified errors.	4
See Herrera, 2001-NMCA-073, ¶ 36. After reviewing the record, we discern no error	5
on counsel’s part for failing to file the motion.	6
{22} 	Defendant asserts that at the sentencing hearing, the trial court stated that “it	7
believed a lesser sentence was appropriate” and that the court invited “defense counsel	8
to file a motion setting forth mitigating factors.” As a result, Defendant maintains that	9
if counsel had filed a motion, “it is likely that [Defendant] would have received a	10
reduced sentence.” 	Our review of the sentencing hearing does not support	11
Defendant’s characterization of the interchange between counsel and the trial court.	12
{23} 	At the hearing, the trial court spoke at length about the difficulties surrounding	13
mandatory sentencing provisions and the resulting unfairness that stems from	14
removing the trial court’s discretion. 	Despite these concerns, the court stated that	15
“I’m going to sentence him to 18 years because I think that’s what society demands.	16
I think, given the circumstances of the crime, his past history, that’s what I have to do.	17
I take no pleasure in it.” Defense counsel suggested that the trial court could reduce	18
the sentence based on mitigating factors. The trial court expressed some doubt, and	19

14
the State indicated that Defendant would have to file a motion. The trial court told	1
defense counsel that “If you file a motion, I’ll consider it.” 	Then the trial court	2
continued and warned defense counsel: 	“You’ll have to [show] me the mitigating	3
circumstances and I would have to take—that would have to be—I would have to	4
make a finding of mitigating circumstances. 	You would have to show me those	5
mitigating circumstances. I’m not going to do that on whim.”	6
{24} 	There is no indication in the record to suggest why counsel failed to file the	7
motion, and it is conceivable that based on the comments of the trial court, counsel	8
strategically opted not to proceed with the motion. 	See State v. Dylan J., 2009-	9
NMCA-027, ¶ 39, 145 N.M. 719, 204 P.3d 44 (“If there is a plausible, rational	10
strategy or tactic to explain counsel’s conduct, a prima facie case for ineffective	11
assistance is not made.”). Thus, we perceive no error for failing to file the motion.	12
{25} 	Further, Defendant did not establish that the trial court would have reduced the	13
sentence but for counsel’s failure to file the motion. On appeal, Defendant identifies	14
the following mitigating circumstances: 	doubt regarding the source of Child’s	15
injuries, Defendant’s history of having been abused as a child, and Defendant’s	16
subsequent rehabilitative efforts. All of this evidence had already been presented to	17
the trial court during the course of the trial. The verdict demonstrates that based on	18
the evidence before it, the trial court had no reasonable doubt about the source of	19

15
Child’s new injuries. Defendant’s unfortunate history of being abused came to light	1
during the trial when defense counsel played a video taped interview between the	2
investigating detective and Defendant. Finally, the trial court referred to Defendant’s	3
efforts at rehabilitation during sentencing, but ultimately concluded that he was bound	4
to impose the mandatory sentence. After having been exposed to all of this mitigating	5
evidence, the trial court stated “I don’t think there’s any mitigating circumstances,	6
frankly.”	7
{26} 	Based on this, we hold that Defendant has not established that he was	8
prejudiced by his counsel’s failure to file a motion setting forth mitigating factors.	9
Consequently, Defendant has failed to establish a prima facie case for ineffective	10
assistance of counsel based on defense counsel’s failure to file a motion laying out	11
mitigating factors.	12
B. 	Trial Court Rulings	13
{27} 	Defendant also argues that his counsel was rendered ineffective by three of the	14
trial court’s rulings. 	Specifically, Defendant contends that “[b]y denying defense	15
counsel’s motions and refusing to grant any other form of relief, the [trial] court	16
actively caused or contributed to defense counsel’s incompetence.” This argument is	17
based on our Supreme Court’s reasoning in the recent Schoonmaker opinion.	18
1. 	Schoonmaker’s Presumption of Prejudice	19

16
{28} 	In Schoonmaker, private defense counsel filed a motion to withdraw because	1
the public defender department would not pay for an expert witness when the	2
defendant was not represented by the department. 	2008-NMSC-010, ¶¶ 7-8. 	The	3
court would not permit counsel to withdraw, and counsel was faced with a dilemma:	4
“refuse to proceed without an order of withdrawal and risk being held in contempt, or	5
proceed without necessary experts.” 	Id. ¶ 36. 	Under those circumstances, our	6
Supreme Court presumed that the defendant was prejudiced because “counsel’s	7
potential ineffectiveness is expressly brought to the attention of the [trial] court and	8
is occasioned by the rulings of the court itself.” Id.	9
{29} 	In the present case, Defendant argues that his counsel was similarly rendered	10
ineffective by three of the trial court’s rulings: (1) the denial of a motion to continue	11
so that counsel could interview certain witnesses, (2) the denial of a motion to exclude	12
evidence, and (3) the admission of certain medical testimony. We consider each of	13
these rulings to determine whether they forced defense counsel to provide ineffective	14
assistance of counsel.	15
{30} 	On October 28, 2005—three days before trial—Defendant filed a motion	16
requesting “a reasonable time to interview the State’s experts.” The trial court held	17
a hearing on the same day and denied the motion to continue the trial. As we have	18
already determined, counsel’s failure to interview witnesses was the result of her own	19

17
inaction. Thus, the denial of the motion to continue for the purpose of interviewing	1
the State’s witnesses did not render counsel ineffective—the need for the motion	2
under these circumstances demonstrates that counsel had already been ineffective.	3
{31} 	In the same October 28, 2005 motion, Defendant requested the trial court to	4
exclude the testimony of two medical expert witnesses who were disclosed late by the	5
State, as well as any reference to certain medical records that the State disclosed on	6
October 21, 2005. The trial court denied the motion and observed that those records	7
were as accessible to defense counsel as they were to the State. In addition, although	8
the State did not disclose two of its medical witnesses until August, defense counsel	9
had at least two months to interview those witnesses before trial. Thus the trial court’s	10
failure to remedy the State’s late disclosure of records and witnesses did not cause the	11
prejudice to Defendant—defense counsel’s failure to seek records that were available	12
and failure to interview identified witnesses caused the prejudice to Defendant.	13
{32} 	We have struggled with Defendant’s last argument. He appears to make two	14
arguments related to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579	15
(1993). First, Defendant contends that the trial court improperly delayed the Daubert	16
hearing. Second, Defendant maintains that because the trial court’s rulings prevented	17
him from interviewing the State’s experts or from obtaining an expert, the trial court	18
had a heightened obligation to question the State’s experts at that hearing. 	Again,	19

18
defense counsel was responsible for any prejudice that resulted from these rulings.	1
The motion challenging the State’s experts was filed on the day of trial—any delay	2
in the hearing is squarely defense counsel’s responsibility. 	In addition, defense	3
counsel was not prevented by the trial court’s rulings from conducting interviews or	4
obtaining an expert—she simply did not do so.	5
{33} 	We have already determined that it was unreasonable for defense counsel to fail	6
to interview the State’s experts and retain or consult with an expert. None of the trial	7
court’s rulings forced defense counsel to act unreasonably. 	See Herrera, 2001-	8
NMCA-073, ¶ 36. 	Counsel’s own actions led to the rulings and to any resulting	9
prejudice. Accordingly, counsel’s ineffectiveness was not “occasioned by the rulings	10
of the court” and we decline to apply the Schoonmaker presumption of prejudice.	11
Schoonmaker, 2008-NMSC-010, ¶ 36.	12
2. 	Unreasonable Error	13
{34} 	Even were we to accept Defendant’s argument that prejudice should be	14
presumed, we are further unpersuaded that the trial court should have ruled differently	15
under the circumstances. See id. ¶ 40 (holding that the trial court should have ruled	16
differently to avoid rendering the defendant’s counsel ineffective). We address each	17
ruling in turn and conclude that the trial court did not abuse its discretion. See State	18
v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20 (reviewing a ruling on	19

19
a motion for continuance for abuse of discretion); State v. Duarte, 2007-NMCA-012,	1
¶ 14, 140 N.M. 930, 149 P.3d 1027 (reviewing a trial court’s ruling on late discovery	2
for abuse of discretion); State v. Alberico, 116 N.M. 156, 169, 861 P.2d 192, 205	3
(1993) (“[T]he admission of expert testimony or other scientific evidence is peculiarly	4
within the sound discretion of the trial court and will not be reversed absent a showing	5
of abuse of that discretion.”).	6
a. 	Motion for Continuance	7
{35} 	In order to determine whether a trial court improperly denied a defendant’s	8
motion for a continuance, we consider a number of factors. Torres, 1999-NMSC-010,	9
¶ 10; see State v. Salazar, 2007-NMSC-004, ¶¶ 11, 28, 141 N.M. 148, 152 P.3d 135	10
(applying the Torres factors in an appeal in which the defendant argued that the denial	11
of a motion to continue the trial rendered trial counsel ineffective). 	Those factors	12
include:	13
the length of the requested delay, the likelihood that a delay would	14
accomplish 	the 	movant’s 	objectives, 	the 	existence 	of 	previous	15
continuances in the same matter, the degree of inconvenience to the	16
parties and the court, the legitimacy of the motives in requesting the	17
delay, the fault of the movant in causing a need for the delay, and the	18
prejudice to the movant in denying the motion.	19
Torres, 1999-NMSC-010, ¶ 10.	20
{36} 	We first observe that the length of the requested delay was “a reasonable time”	21
to interview the witnesses, and Defendant did not offer a specific estimate of how	22

20
much additional time was needed to prepare for trial. 	Defendant did, however,	1
indicate that the six-month rule was set to run in mid-February. See Salazar, 2007-	2
NMSC-004, ¶ 21 (presuming that a defendant wanted enough time to accomplish his	3
stated goals). Defendant also offered the trial court no indication of the steps that had	4
already been taken to accomplish the stated objectives or what would have been done	5
in the future to secure interviews or an expert. 	Cf. Torres, 1999-NMSC-010, ¶ 16	6
(concluding that the requested delay was reasonably likely to achieve the stated	7
objectives because the defendant had already taken action and that future action was	8
likely to achieve the desired result).	9
{37} 	The 	third 	and 	fourth 	Torres 	factors 	weigh 	the 	existence 	of 	previous	10
continuances and the inconvenience of further delay. The original trial date was set	11
for May 16, 2005. 	Defendant filed a motion to continue that setting, which was	12
granted. 	In addition, two six-month rule extensions were granted, with Defendant	13
stipulating to at least the first extension. 	Defendant’s position on the second rule	14
extension is not in the record. 	Ultimately, the six-month rule was extended until	15
February 12, 2006. The delay between the original trial date and the actual trial date	16
was approximately five and a half months.	17
{38} 	On October 26, 2005, anticipating a motion by Defendant to again continue the	18
trial, the State filed a motion vigorously opposing an additional continuance. At the	19

21
October 28, 2005 hearing, the State argued that any further delay would be prejudicial	1
because memories fade and because one of its experts would soon be unavailable due	2
to an illness. The trial court also observed that the offense and the indictment had	3
happened “almost a year ago” and that it was “time to get these cases on.” Although	4
it is clear that “the trial court’s generalized concerns about expediency are not	5
sufficient to override [a defendant’s] constitutional right to compulsory process,” the	6
State opposed the continuance and demonstrated that inconvenience would result if	7
the time for trial was extended beyond December, when its witness would no longer	8
be available. Torres, 1999-NMSC-010, ¶ 17 (explaining that the parties would have	9
to 	establish 	“significant 	or 	substantial 	inconvenience” 	in 	order 	to 	warrant	10
consideration as a factor).	11
{39} 	The State argues that Defendant had an illegitimate motive for moving for a	12
continuance. 	We have already commented on the quality of defense counsel’s	13
representation based in part on her failure to interview these witnesses. We are not	14
persuaded by the record that defense counsel’s motive was entirely to delay the	15
proceedings, as the State suggests. 	The need to interview witnesses and review	16
records is manifest in this case. We do not regard the request itself as illegitimate.	17
The State offers no evidence or citation to the record to establish that defense	18
counsel’s motive was other than what was claimed—to finally act to secure witnesses	19

22
and conduct interviews.	1
{40} 	The next Torres factors evaluate whether the need for the delay was caused by	2
Defendant and what prejudice would result if the continuance was denied. See 1999-	3
NMSC-010, ¶ 10. 	The State argues that the fault for the delay was entirely	4
Defendant’s: Defendant failed to interview the State’s experts and failed to alert the	5
court to any difficulties that she was having in arranging for the interviews.	6
Defendant contends that the State is partly to blame for the failure to interview	7
because the State promised to arrange for an interview with one expert and failed to	8
timely disclose two other experts. As explained above, Defendant has an independent	9
duty to investigate and pursue witness interviews in this case. Here, the State bears	10
little responsibility for the delay. Defense counsel had over eight months to interview	11
one witness and two and a half months to interview the remaining witnesses, and she	12
failed to do so. 	Defense counsel did not alert the trial court to any difficulties in	13
contacting the witnesses, and the court was unaware of any problems until three days	14
before trial. Based on this, we conclude that Defendant alone bears the responsibility	15
for the need for a continuance.	16
{41} 	Defendant claims that as a result of the trial court’s failure to grant a	17
continuance, he was prejudiced because he was unable to call or consult with an	18
expert and thereby establish his theory of the case, which we have already described.	19

23
See id. (describing the final factor as “the prejudice to the movant in denying the	1
motion”). We agree that counsel’s failure to call an expert or interview the State’s	2
experts was prejudicial to his defense. Nevertheless, weighing this factor together	3
with the other Torres factors, we conclude that the trial court did not abuse its	4
discretion by denying a continuance. The case had been delayed three times already,	5
once at Defendant’s request and at least once with Defendant’s approval. Defendant	6
provided no indication of how much more time was required or how his stated	7
objectives would have been achieved. The State established that further delay would	8
harm the prosecution, and the record demonstrates that the need for the delay was	9
rooted in Defense counsel’s failure to arrange for interviews. Accordingly, we hold	10
that the trial court did not render Defendant’s counsel ineffective by denying the	11
October 28, 2005 motion for a continuance. We now turn to the trial court’s denial	12
of Defendant’s motion to exclude the late-disclosed medical records and the testimony	13
of the late-disclosed medical experts.	14
b. 	Evidentiary Ruling	15
{42} 	In order to determine whether a ruling on late discovery requires reversal, we	16
consider “(1) whether the [s]tate breached some duty or intentionally deprived the	17
defendant of evidence; (2) whether the improperly non-disclosed evidence was	18

24
material; (3) whether the non-disclosure of the evidence prejudiced the defendant; and	1
(4) whether the trial court cured the failure to timely disclose the evidence.” Duarte,	2
2007-NMCA-012, ¶ 15.	3
{43} 	As we have explained, defense counsel’s failure to interview the State’s experts	4
was not due to a breach of duty on the part of the State. The trial court specifically	5
stated that it “takes very seriously the [S]tate’s obligation to provide timely discovery	6
and cooperate in interviews.” 	Defendant also has not established that the State	7
breached a duty regarding the late-disclosed medical records. 	At the hearing on	8
Defendant’s motion, the State explained that the records were recent records, which	9
had not previously been part of the State’s file. The State passed the documents on	10
to Defendant as soon as they were obtained. 	The trial court pointed out that	11
Defendant had as much access to these records as did the State, and he could have	12
easily obtained them. 	There is additionally very little indication, apart from	13
Defendant’s insistence, that these recent records were material to the charge. 	The	14
records pertained to Child’s condition at the time of trial and not at the time he was	15
injured or before the injuries.	16
{44} 	With regard to the late-disclosed witnesses, we first observe that Defendant did	17
not argue to the trial court that the State violated Rule 5-501(A)(5), which requires the	18
State to disclose witnesses within ten days of arraignment. We further fail to see how	19

25
Defendant was prejudiced by the untimely disclosure. To determine prejudice, “we	1
look at whether the defense’s case would have been improved by an earlier disclosure	2
or how [the defense] would have prepared differently for trial.” 	Duarte, 2007-	3
NMCA-012, ¶ 15 (alteration in original) (internal quotation marks and citation	4
omitted). The State’s first expert was disclosed on February 23, 2005. Although this	5
disclosure is outside the time set by Rule 5-501(A)(5), over eight months elapsed	6
before trial commenced. The two additional experts were disclosed on August 10,	7
2005, more than two months before trial.	8
{45} 	Defendant made no claim below—and makes none on appeal—that he would	9
have prepared differently for trial had he known of the expert witnesses earlier. In	10
fact, the primary difficulty in securing witness interviews was not notice, but defense	11
counsel’s inaction and her disagreement about whether the State or Defendant was	12
responsible for arranging the interviews. 	Given the length of time between	13
Defendant’s receipt of notice of the witnesses and the trial, as well as defense	14
counsel’s supposed misapprehension about his responsibility to arrange for interviews,	15
we conclude that the trial court did not abuse its discretion by failing to provide a	16
remedy for the late disclosure.	17
c. 	Expert Testimony	18
{46} 	As an initial matter, Defendant does not argue that under Daubert or any other	19

26
authority that the State’s doctors were not qualified to testify, that the evidence of	1
shaken baby syndrome does not assist the trier of fact, or that the shaken baby	2
diagnosis is not sufficiently based on applicable factors under Rule 11-702 NMRA or	3
Rule 11-104(A) NMRA. Instead, Defendant challenges the timing of the evidentiary	4
hearing and the trial court’s conduct of the hearing on the day of trial. 	These	5
arguments focus on the deficiencies of the trial court and not on the deficiency or the	6
unreliability of the medical diagnosis at issue. Accordingly, we review Defendant’s	7
contentions as they are presented. We do not analyze whether the evidence of shaken	8
baby syndrome is subject to having Daubert applied or otherwise meets the standards	9
for scientific reliability. 	See Torres, 1999-NMSC-010, ¶ 43 (“[A]pplication of the	10
Daubert factors is unwarranted in cases where expert testimony is based solely upon	11
experience or training.” (internal quotation marks and citation omitted)).	12
{47} 	Dr. Campbell was the State’s final witness, and two other doctors had testified	13
earlier in the trial. Defendant contends that at least one of these doctors, Dr. Coleman,	14
touched on the issue of shaken baby syndrome—although that doctor did not refer to	15
it by name—before the trial court had considered the scientific reliability of the	16
diagnosis. Defendant thus argues that by delaying the Daubert hearing, unqualified	17
and potentially unreliable evidence was admitted. We are unpersuaded. Irrespective	18
of whether Daubert applies to the shaken baby diagnosis, we see no error in delaying	19

27
the hearing.	1
{48} 	First, Defendant’s argument that the trial court “improperly delayed” a hearing	2
on the admissibility of the shaken baby testimony is unconvincing in light of the fact	3
that the court was presented with the motion on the day of trial. Second, Defendant	4
made no objection when the trial court proposed to consider the evidentiary reliability	5
during trial or when Dr. Coleman gave her testimony. 	Third, Defendant offers no	6
authority for the proposition that a Daubert hearing pursuant to Rule 11-104 or Rule	7
11-702 must take place at a particular time during or before the trial. 	See State v.	8
King, 2007-NMCA-130, ¶ 17, 142 N.M. 699, 168 P.3d 1123 (refusing to consider	9
arguments unsupported by authority or analysis), cert. quashed, 2007-NMCERT-011,	10
143 N.M. 157, 173 P.3d 764.	11
{49} 	Fourth, it appears from the record that although the trial court qualified Dr.	12
Coleman as an expert witness, the State presented her primarily as a fact witness	13
because she was the treating physician at the time that Child was brought to the	14
University of New Mexico Hospital emergency room. She testified as to the extent	15
of all of Child’s injuries. 	Dr. Campbell later connected some of these injuries to	16
shaken baby syndrome––after the trial court accepted the scientific foundation. Dr.	17
Coleman, however, did not offer a shaken baby diagnosis and we see no error in the	18
trial court’s hearing her testimony regarding her observation of all of Child’s injuries	19

28
before considering the evidentiary reliability of the diagnosis.	1
{50} 	Our Supreme Court has characterized the trial court’s role in the admission of	2
expert evidence as that of a “gatekeeper.” State v. Downey, 2008-NMSC-061, ¶ 25,	3
145 N.M. 232, 195 P.3d 1244. 	Defendant next argues that the trial court failed to	4
fulfill its role as gatekeeper on two grounds. According to Defendant, the trial court	5
was insufficiently critical of the State’s proposed expert, and further, the trial court did	6
not genuinely inquire into the validity of the shaken baby diagnosis. Defendant takes	7
the position that more active participation by the trial court was required because	8
Defendant was prevented by the trial court’s rulings from obtaining an expert as either	9
a witness or a consultant and from fully exploring the symptoms underlying a shaken	10
baby syndrome on cross-examination of Dr. Campbell. 	We disagree, primarily	11
because Defendant’s characterizations of the trial court’s actions are not supported by	12
the record. As we have already concluded, the trial court did not prevent Defendant	13
from obtaining an expert—the absence of expert support was due entirely to defense	14
counsel’s lack of diligence. 	Additionally, Defendant provides no authority for the	15
proposition that heightened participation by the trial court is required under certain	16
circumstances. See King, 2007-NMCA-130, ¶ 17.	17
{51} 	Similarly, the record does not support Defendant’s argument that the trial court	18
prevented Defendant’s counsel from effectively cross-examining the State’s shaken	19

29
baby expert; the record demonstrates that the trial court did not prevent Defendant’s	1
counsel from pursuing any line of questioning during voir dire. Defendant points to	2
an exchange between his counsel and Dr. Campbell, in which Defendant asked,	3
“[A]ren’t there in fact many other causes for those kinds of conditions such as the	4
retinal hemorrhages as opposed to just shaking?” Dr. Campbell proceeded to outline	5
potential alternate causes for the symptoms that she had identified as indicators of	6
shaken baby syndrome. Defendant followed up with another question: “And how,	7
how about something such as vaccines, the impact of them?” The State objected and	8
argued that the questions were beginning to stray afield. 	The trial court permitted	9
Defendant to continue: 	“I’ll let you, I’ll let you go on a little bit[.]” 	After that,	10
Defendant elicited a response to the question regarding the vaccines and continued the	11
examination of the expert without interruption. Although Defendant’s questions were	12
interrupted by an objection, the trial court permitted Defendant to continue. We thus	13
fail to see how the trial court’s actions prevented Defendant from conducting an	14
effective cross-examination of Dr. Campbell.	15
{52} 	Based on Defendant’s articulated challenges to the trial court’s admission of the	16
shaken baby diagnosis, we hold that the trial court did not abuse its discretion by	17
admitting the expert evidence.	18
3. 	Rulings and Schoonmaker	19

30
{54} 	Having reviewed the three rulings in light of Schoonmaker, we conclude that	1
Defendant failed to establish that the rulings rendered his counsel ineffective. The	2
presumption of prejudice is inapplicable to the facts before us, and we discern no error	3
in the trial court’s rulings.	4
III. 	CONCLUSION	5
{55} 	We remand this matter for an evidentiary hearing to determine whether	6
Defendant’s counsel was ineffective in failing to obtain or consult with an expert or	7
in failing to interview the State’s experts. 	We observe that although Defendant’s	8
complaints regarding the motion to mitigate and the trial court’s rulings are	9
insufficiently developed to support a direct appeal, he retains the right to pursue these	10
claims via habeas review.	11
{56} 	IT IS SO ORDERED.	12
________________________________	13
CELIA FOY CASTILLO, Judge	14
WE CONCUR:	15
________________________________	16
RODERICK T. KENNEDY, Judge	17
________________________________	18
TIMOTHY L. GARCIA, Judge	19