May 28, 2019- State of New Mexico v. William Serna, No. A-1-CA-34926

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Court of Appeals of New Mexico
Filed 5/28/2019 11:38 AM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Nak at

STATE OF NEW MEXICO,

Plaintiff-Appellee,
V. No. A-1-CA-34926
WILLIAM SERNA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Christina P.-Argyres, District Judge

Hector H. Balderas, Attorney General

Maha Khoury, Assistant Attorney General

SantaFe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM :

for Appellant

MEMORANDUM OPINION
B. ZAMORA, Judge.
a} Defendant William Serna appeals his convictions for possession of a
controlled substance and conspiracy to commit possession of a controlled substance
on the following grounds: (1) his right to be free from double jeopardy was violated;

(2) there was insufficient evidence to support his convictions; (3) he was entitled to

1 a jury instruction on a lesser-included offense; (4) h~ had ineffective assistance of
2 counsel; and (5) his right to a speedy trial was violated. Because we agree with
3 Defendant that his conviction for conspiracy to commit possession of a controlled
4 substance violated his right against double jeopardy, we reverse and remand for the
5 district court to enter an order vacating this conviction. We otherwise affirm.
6 BACKGROUND
7 {2} 	In August 2012 Officer Daniel Galvan was part of a "tactical plan" at the
8 Albuquerque Rescue Mission, a shelter for homeless people. Officer Galvan and
9 another officer were on the roof of the Rescue Mission that night watching for
10 potential drug use and other possible crimes occurring on the sidewalk below.
11 	Although it_ was dark, the officers could see the sidewalk below because "it was
12 	illuminated by floodlights. While the officers observed the sidewalk, an arrest team
13 	was in a patrol car parked down the street.
14 	{3} 	From his vantage point on the roof, Officer Galvan saw Defendant and
15 	Matthew Valdez approximately fifteen feet directly below his position, lying on the
16 sidewalk on their sides and talking to one another. Nothing obstructed Officer
17 Galvan's view of Defendant and Valdez, it was a clear night, and Officer Galvan
18 was wearing his prescription glasses. While Officer Galvan was observing the two
19 men, Defendant produced what Officer Galvan identified as a crack cocaine pipe,
2

1 took out a lighter, and took "three hits" from it 1, flicking the pipe upwards so it was
2 orientated vertically rather than horizontally, as one would smoke a cigarette. After
3 Officer Galvan observed Defendant smoke from the pipe, he called the arrest team.
4 Officer Galvan then observed Defendant pass the pipe to Valdez who also smoked
5 from it and Valdez then concealed the pipe in a red pouch. Officer Galvan continued
6 to observe Defendant, until the arrest team reached the scene, less than two minutes
7 later.
8 {4} 	When the arrest team approached, Valdez threw the red pouch to his feet and
9 tried to kick it away. Officer Amy Markwick, an officer on the arrest team, searched
10 the red pouch and discovered the pipe. Officer Markwick later gave the pipe to
11 	Officer Galvan so he could tag it into evidence. Officer Galvan removed a Brillo pad
12 from the pipe, which is a copper wire mesh typically found in crack cocaine pipes
13 	and tagged it into evidence. The Brillo pad later tested positive for the presence of
14 cocaine. Officer Markwick testified at trial that she could not recall if the arrest team
15 	recovered anything else on Defendant or Valdez. Officer Markwick further testified
16 that she could not recall if there wa~ anything else in the red pouch or whether she
17 "inventoried it or not[,]" but if the pouch was inventoried and there were additional
18 pipes they would also have been tagged into evidence.
1Testimony from another officer indicated that a crack cocaine pipe does not
usually have a bowl in most cases so the user has to light the pipe every single time
they want to draw on it, otherwise it will not stay lit.
3

1 {5} 	Defendant was indicted on one count of possession of a controlled substance,
2 contrary to NMSA 1978, Section 30-31-23 (2011), and one count of conspiracy to
3 commit possession of a controlled substance, contrary to NMSA 1978, Section 30-
4 28-2 (1979), and Section 30-31-23. The Friday before trial, Defendant filed a motion
5 to dismiss on speedy trial grounds, which was denied by the district court. Following .
6 the trial, the jury returned a guilty verdict for both felony counts.
7 DISCUSSION
8 I. 	Double Jeopardy
9 	{6} 	Defendant argues that his convictions for possession of a controlled substance
10 and conspiracy to commit possession of a controlled substance violate his right to
11 	be free from double jeopardy. Specifically, Defendant contends that his convictions
12 under the two different statutes present a double-description double jeopardy claim
13 	because the State relied on the moment Defendant smoked the pipe with Valdez to .
14 prove both the possession and conspiracy to commit possession charges. See State
15 	v. Gutierrez, 2011-NMSC-024, 151, 150 N.M. 232,258 P.3d 1024 (holding that a
16 double-description claim requires "first analyzing whether the conduct underlying
17 the offense is unitary, i.e., whether the same conduct violates both statutes, and, if
18 	so, proceeding to analyze whether the [L ]egislature intended to create separately
19 punishable offenses" (internal quotation marks and citation omitted)).
4

1 {7} 	The State agrees that Defendant's right to be free from double jeopardy was
2 violated and his "conviction for conspiracy should be vacated." Although we are not
3 bound by the State's concession, we agree. See State v. Montoya, 1993-NMCA-097,
4 1 28, 116 N.M. 297, 861 P.2d 978 (noting that this Court is not bound by state's
5 concessions). 	In State 	v. 	Silvas, 	our Supreme Court noted that, to 	support a
6 conviction for two different crimes, the state relied on evidence of a "single moment
7 in time [(giving drugs to codefendant)] to prove both [the d]efendant's possession
8 with intent [to distribute] and [the d]efendant's conspiratorial agreement with [the
9 codefendant] to commit the same crime." 2015-NMSC-006, 1 10,343 P.3d 616. Our
10 	Supreme Court concluded that this constituted unitary conduct and violated the
11 	defendant's right against double jeopardy. Id. 1119-21. The same is true here. In its
12 closing argument, "the State appears to have directed the jury to the same act for
13 	both crimes." Id. 118.
14 	{8} 	Accordingly, based on our review of the record, and the State's concession on
15 	this point, we find further analysis unnecessary and conclude Defendant's right to
16 be free from double jeopardy was violated.
17 II. 	Sufficiency of the Evidence
18 	{9} 	Defendant 	claims 	that 	there 	was 	insufficient 	evidence 	to 	support 	his
19 conviction for possession of a controlled substance. Defendant also argues there is
20 insufficient evidence to support his conviction for conspiracy to possess a controlled
5

1 substance. However, because we vacated the conspiracy conviction based on double
2 jeopardy grounds, we need not address this argument.
3 A. 	We Decline to Overturn Wood and Grijalva
4 	{to} 	Defendant argues that there was insufficient evidence that he possessed a
5 controlled substance pursuant to Section 30-31-23 because the empty pipe contained
6 only a trace amount of cocaine. Defendant's argument is contrary to existing
7 precedent and would require us to overturn our decisions in State v. Wood, 	1994-
8 NMCA-060, 117 N.M. 682,875 P.2d 1113 and State v. Grijalva, 1973-NMCA-061,
9 	85 N.M. 127, 509 P.2d 894. In Wood, this Court held that less than 0.0001 gram of
. 	.•
10 cocaine located in syringes was sufficient to uphold a conviction for possession of a
11 	controlled substance. 1994-NMCA-060, ,, 2-3, 6-12.
12 	{11} 	Defendant requests we overturn Wood and Grijalva because the legislative
13 	intent of Section 30-31-23 was not to punish people who possess paraphernalia
14 containing only residue and such a holding "makes an absurd distinction between
15 	clean and dirty paraphernalia." Defendant adds that, "all misdemeanor paraphernalia
16 cases would be transformed into drug possession cases by the mere fact that drug
17 users had used their paraphernalia before[.]" The State responds that the legislative
18 .intent of the possession statute is to prevent consumption and here Officer Galvan
19 observed Defendant consuming what the jury could have inferred was crack cocaine,
20 the exact behavior the Legislature sought to prevent. Further, the State argues, the
6

1 distinction between the possession of a controlled substance and possession of
2 paraphernalia is not rendered absurd when applied to the facts of this case. We agree
3 with the State.
4 	{12} 	"Stare decisis is the judicial obligation to follow precedent, and it lies at the
5 very core of the judicial process of interpreting and announcing law." See Trujillo v.
6 City of Albuquerque, 1998-NMSC-031,, 33, 125 N.M. 721, 965 P.2d 305. Stare ·
7 decisis is at the core of maintaining "a sound judicial system[.]" Id. Consequently,
8 "any 	departure 	from 	precedent 	demands 	special justification." N.M 	Right 	to
9 	Choose/NARAL v. Johnson, 1999-NMSC-028,, 11, 127 N.M. 654, 986 P.2d 450
10 (alteration, omission, internal quotation marks, and citation omitted). In deciding
11 	whether to overturn precedent we look to:
12
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15
16
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18
1) whether the precedent is so unworkable as to be intolerable; 2)
whether parties justifiably relied on the precedent so that reversing it
would create an undue hardship; 3) whether the principles of law have
developed to such an extent as to leave the old rule no more than a
remnant of abandoned doctrine; and 4) whether the facts have changedI
in the interval from the old rule to reconsideration so as to have robbed
the old rule of justification.
19 State v. 	Pieri, 2009-NMSC-019, , 	21, 146 N.M. 	155, 207 P.3d 1132 (internal
20 quotation marks 	and citation omitted). 	Defendant states that his 	argument is
21 	premised both on the first factor, that the result of this precedent is unworkable, and
22 the third factor, that Wood and Grijalva failed to undertake a sufficient analysis of
23 	legislative intent.
\
7

1 {13} 	Defendant does not· present a compelling reason to overturn Grijalva and
2 	Wood. The legislative intent analysis from Wood was sufficient and the holding
3 continues to remain workable. In conducting our analysis of legislative intent in
4 	Wood, we stated that the "starting point in every case involving the construction of
5 a statute is an examination of the language utilized by the drafters of the act." 1994-
6 NMCA-060, 1 8. We noted that Subsection B of Section 30-31-23 "adopted differing
7 penalties for possession of specific quantities of marijuana." Wood, 1994-NMCA-
8 060, 1 8. In comparison, we read the language "any amount" of a "controlled
9 substance" in Subsection C of Section 30-31-23 together with Subsection D, which
10 also references "a controlled substance," and does not indicate a specific amount for.
1 l 	a 	conviction. 	Wood, 	1994-NMCA-060, 	1 	8. 	This 	notable 	difference 	in 	the
12 subsections led· to our conclusion that it was clear and unambiguous that the
13 	Legislature intended to punish with Section 30-31-23 "any clearly identifiable
14 amount of a controlled substance[,]" interpreting the "any amount" language in
15 	Section 30-31-23(C) to also apply to Section 30-3 l-23(D).2 Wood, 1994-NMCA-
16 060, 19.
17 {14} 	We fail to see how we could interpret the language in Section 30-31-23
18 differently. As we noted in Wood, "[t]he power to define crimes is a legislative
2This statute has been amended since our conclusions in Wood. As of the date
of this opinion, Sect1ons 30-31-23(C) and (D) are now effectively Sections 30-31-
23(D) and (E).
8

1 function." Id. 111 (internal quotation marks and citation omitted). Moreover, "[t]he
2 Legislature is presumed to act with knowledge of relevant case law" and because of
3 this knowledge the Legislature can expressly choose to take "a different approach."
4 State v. Cleve, 1999-NMSC-O 17, 1 14, 980 P .2d 23 (alteration, internal quotation ·
5 marks, and citation omitted); see Herron v. State, 1991-NMSC-012, 18, 111 N.M.
6 357, 805 P.2d 624 ("[W]hen enacting a statute the [L]egislature is deemed to be ·
7 aware of existing statutes and judicial decisions and to have amended or enacted the
8 statute in light thereof."). We assume the Legislature is aware of our decisions
9 interpreting Section 30-31-23 and, despite having amended the statute several times
10 in the decades since our holding in Grijalva, has not amended the "any amount"
11 	language. The Legislature could have easily removed the word "any" from Section
12 30-31-23 had it disapproved of our interpretation of the statute, including during the
13 	2019 legislative session where, despite amending Section 30-31-23, the Legislature
14 again did not alter or omit the words "any amount." See S.B. 323, 54th Leg., 1st
15 	Sess. (N.M. 2019), available at https://nmlegis.gov/Sessions/19%20Regular/final
16 /SB0323.pdf.
17 	{15} 	Moreover, Defendant has failed to show why the holding in 	Wood and
18 	Grijalva has become so "unworkable" that it is "intolerable." See N.M Right to
19 	Choose/NARAL, 1999-NMSC-028, 114 (indicating that a proponent of overturning
20 precedent on the grounds that it has become so unworkable as to be intolerable must
9

1 provide a basis. for concluding as such). Our Supreme Court has made clear that
2 proof of mere possession of an item containing only a trace amount of cocaine is
3 insufficient to support a conviction for possession of a controlled substance. See
4 State v. Reed, 1998-NMSC-030, 115, 125 N.M. 552,964 P.2d 113. Instead, the s~ate
5 must prove, among other elements, that the defendant had knowledge that he
6 possessed a controlled substance. See id. 1 16 (reversing a defendant's conviction
7 for possession when the defendant did not know that a cellophane cigarette wrapper
8 he had in his pocket contained cocaine residue, the amount of cocaine in the wrapper
9 was not apparent to the human eye, and the defendant did not flee or act in a
10 	suspicious manner). The facts in this case are illustrative of this point because not
11 	only was there evidence that Defendant possessed a pipe with cocaine residue,
12 additionally the officer saw Defendant smoke from the crack pipe three times-
13 	evidence that Defendant. was knowingly consuming the illicit drugs contained in the
14 pipe. 	The_ knowledge requirement of the crime 	of possession of a controlled
15 	substance makes our precedent workable, as it ensures that a person is convicted
16 only when there is evidence that they knowingly possessed a controlled substance.
17 	{16} 	Finally, we also consider "whether [the] parties justifiably relied on the
18 precedent so that reversing it would create an undue hardship[.]" Pieri, 2009-
19 NMSC-019, 1 21 (internal quotation marks and citation omitted). For over forty-five
20 years litigants have relied on the plain meaning of "any amount" in Section 30-31-
10

1 23. Maintaining our holdings in Grijalva and Wood not only provides "stability of
2 the law," but also "fairness in assuring that like cases are treated similarly[.]"
3 	Trujillo, 1998-NMSC-031, 133. Therefore, this is an inappropriate circumstance to
4 depart from our judicial obligation to follow precedent. We continue to follow Wood
5 and Grijalva, which we next apply to our analysis of Defendant's sufficiency of the
6 evidence argument.
7 B. 	There Was Sufficient Evidence That Defendant Possessed Crack Cocaine
8 {17} 	"The test for sufficiency of the evidence is whether substantial evidence of
9 either a direct or circumstantial :nature exists to support a verdict of guilty beyond a
10 reasonable doubt with respect to every element essential to a conviction." State v.
11 	Montoya, 2015-NMSC-010, 1 52, 345 P.3d .1056 (internal quotation marks and
12 citation omitted). "Substantial evidence is relevant evidence that a reasonable mind
13 	might accept as adequate to support a conclusion." See State. v. Rojo, 1999-NMSC-
14 001, 1 19, 126 N.M. 438, 971 P.2d 829. The jury instructions given by the district
15 	court "become the law of the case against which the sufficiency of the evidence is
16 measured." State v. Schackow, 2006-NMCA-123, 18, 140 N.M. 506, 143 P.3d 745.
17 	{18} 	To find Defendant guilty of possession of a controlled substance, the State
18 had to prove that Defendant knew the cocaine was "on his person or in his presence,
•
19 and he exercise[d] control over it." UJI 14-3130 NMRA. "Two or more people can
20 have possession of a substance at the same time ... [and] a person's presence in the
11

1 vicinity of the substance or his knowledge of the existence or the location of the
2 substance, is not, by itself, possession." Id. This Court "must be able to articulate a
3 reasonable analysis that the fact-finder might have used to determine knowledge and
4 control." State v. Jimenez, 2017-NMCA-039, 148, 392 P.3d 668 (internal quotation
5 ·marks and citation omitted). The State had to prove knowledge by demonstrating
6 Defendant knew of the presence of the cocaine. See State v. Garcia, 2005-NMSC-
7 017, 114, 138 N.M. 1, 116 P.3d 72. Evidence of control could include the power to
8 produce or dispose of the cocaine. State v. Barber, 2004-NMSC-019, 127, 135 N.M.
9 621, 92 P .3 d 63 3. The State could have established proof of possession by evidence
10 	of the conduct and actions of Defendant, and by circumstantial evidence connecting
11 	Defendant with the crime. See id.
12 	{19} 	Defendant argues that his conviction is based on Officer Galvan speculating
13 	that he possessed a crack pipe as opposed to a cigarette. Moreover, Defendant
14 contends the officers neglected to search the red pouch to verify whether there was
15 	a cigarette or other paraphernalia that would provide an alternative explanation as to
16 what he was smoking. We disagree.
17 	{20} 	At trial, Officer Galvan testified that he believed the object Defendant
18 possessed was a crack cocaine pipe, not a cigarette or other paraphernalia. Officer
19 Galvan described his training 	in identifying narcotics 	and methods 	of using
20 narcotics, including crack and cocaine, stated that he was familiar with crack cocaine
12

1 pipes, had come across approximately two hundred crack cocaine pipes in his time
2 as a police officer, and had conducted investigations for possession of crack. Officer
3 Galvan explained that, to smoke crack cocaine, the user points the pipe vertically, a
4 technique that is distinct from smoking tobacco, marijuana, or methamphetamine.
5 Officer Galvan's testimony that Defendant smoked from a crack cocaine pipe was
6 based on his extensive training and experience, not speculation.
7 	{21} 	The arresting officers arrived within two minutes after Officer Galvan's
8 observations and retrieved the pipe from the red pouch. While waiting for the arrest
9 team, Officer Ga~van continuously watched Defendant and Valdez, and at trial,
10 identified the same pipe the two were smoking. The State's expert in forensic drug
11 	analysis later confirmed that the Brillo pad that Officer Galvan removed from the
12 pipe contained cocaine residue. As noted above, any clearly identifiable amount of
13 	a controlled substance is enough to sustain a conviction for possession 	of a
14 controlled substance. See Wood, 1994-NMCA-060, ,-r 10. As the State points out,
15 	Defendant repeatedly smoked from the crack cocaine pipe in a manner that a user
16 would traditionally smoke crack cocaine and then passed the pipe to another
17 individual who again smoked from it. It is a reasonable inference to assume that the
18 two individuals would not have smoked an empty crack cocaine pipe numerous
19 times, evidencing that the jury could have found that Defendant possessed more than
20 just a pipe with residue. Thus, the pipe with cocaine residue coupled with evidence
13

1· of Defendant smoking from the crack pipe was sufficient for the jury to reasonably
2 infer he knowingly possessed cocaine. Defendant's arguments relate to the weight
3 and credibility given to the testimony of witnesses-a matter that is directly within
4 the province of the jury which was free to reject Defendant's contentions. See State
5 v. Cabezuela, 2011-NMSC-041°, 1 45, 150 N.M. 654, 265 P.3d 705 (stating that
6 "contrary evidence offered by [the d]efendant does not warrant a reversal because
7 the jury is free to reject [the d]efendant's version of the facts." (internal quotation
8 marks and citation omitted). Based on these facts, the jury could have reasonably
9 inferred Defendant knew the substance was cocaine and exercised control over it.
10 III. 	Failure 	to 	Instr·uct 	Jury 	on 	Lesser-Included· 	Offense 	Was 	Not
11 	Fundamental Error
12 	{22} 	Defendant argues that the district court committed fundamental error and
13 	violated his right to due process because it did not sua sponte instruct the jury on the
14 lesser-included 	offense 	of 	possession 	of 	drug 	paraphernalia. 	Defendant
15 	acknowledges that he did not request the lesser-included instruction or object to the
16 instructions given below.
17 {23} 	We apply "the doctrine of fundamental error to an error in the jury instructions
18 that was not objected to, or raised in the district court." State v. 	Traeger, 2001-
19 NMSC-022, 1 18, 130 N.M. 618, 29 P.3d 518. In analyzing a fundamental error
20 claim, we begin our analysis by determining whether an error occurred. State v.
21 	Silva, 2008-NMSC-051, 1 11, 144 N.M. 815, 192 P.3d 1192. Assuming there was
14

1 error, :we will only reverse Defendant's conviction "if there has been a miscarriage
2 of justice, if the question of guilt is so doubtful that it would shock the conscience
3 to permit the conviction to stand, or if substantial justice has not been done." State
4 v. Sutphin, 2007-NMSC-045, ,-r 16, 142 N.M. 191, 164 P.3d 72 (internal quotation
5 marks and citation omitted).
6 	{24} 	Defendant relies mainly on State v. Darkis, 2000-NMCA-085, 129 N .M. 547,
7 	10 P.3d 871 	in support of his position. In Darkis, this Court concluded it was
8 reversible error for the district court to reject the defendant's request for a jury
9 instruction on the lesser-included offense of possession of paraphernalia where he
10 was charged with possession of a controlled substance. Id. ,-r 12. We noted that it was
11 	a valid trial strategy for the defendant "to allow the jury the ability to make· a choice,
12 that is, as between a lesser and a greater charge." Id. ,-r 20. Defendant's reliance is
13 	misplaced. First, the st~ndard of review in Darkis was reversible error, not the higher
14 standard of fundamental error we apply in this case because of Defendant's failure
15 	to request the instruction. See State v. Cunningham, 2000-NMSC-009, ,-r 21, 128
16 N.M. 711, 998 P.2d 176 (noting the difference between fundamental error and
17 reversible error and declaring there is a "heightened scrutiny" in a fundamental error
18 	analysis). Second, in Darkis, defense counsel explicitly requested the lesser-included
19 	instruction of drug paraphernalia. 2000-NMCA-085, il 5.
15

1 {25} 	In closing argument, Defendant's counsel attacked the motives and perception
2 of Officer Galvan and highlighted the fact that the arresting officers found the pipe
3 on Valdez, who was the only one who exhibited characteristics consistent with crack
4 use. Defendant's counsel, by not requesting an instruction of the lesser charge could
5 have made a tactical decision to pursue an "all-or-nothing" trial strategy. "On appeal,
6 we do not second-guess the tactical decisions of the litigants." State v. Villa, 2004-
7 NMSC-031, 114, 136 N.M. 367, 98 P.3d 1017; see State v. Boeglin, 1987-NMSC-
8 002, 1 10, 	105 N.M. 247, 731 	P.2d 943 	(holding that our Supreme Court has
9 "consistently ... imposed" upon a defendant the duty to make the "tactical decision"
10 to seek jury .instructions on a lesser-included offense). Moreover, we presume the
11 	jury instructions were consistent with Defendant's trial strategy, because, after
12 reviewing them, 	Defendant's counsel affirmatively agreed with the 	proposed
13 	instructions. "New Mexico courts have repeatedly held that the defendant cannot be
14 heard to complain if the trial court instructed the jury as he desired." State v.
15 Hamilton, 1988-NMCA-023, 115, 107 N.M. 186, 754 P.2d 857; see State v. Lopez,
16 	1972-NMCA-158, 111, 84 N.M. 453, 504 P.2d 1086 (stating that it was the duty of
17 counsel for the defendants to ask the court to give their requested instructions). Thus,
18 the district court's failure to instruct the jury on the lesser-included offense was not
19 fundamental error.
16

1 {26} 	Relying on Boeglin, Defendant also argues that the district court committed
2 fundamental error and violated his right to due process because it did not require that
3 Defendant give a knowing, intelligent, and voluntary waiver of the lesser-included
4 instruction. 	See 	1987-NMSC-002, 	1 	16 	("The 	record 	in 	this 	case 	clearly
5 demonstrates that defendant knowingly, intelligently, and voluntarily waived his
6 right to have the jury instructed on second[-]degree murder."). This Court previously
7 addressed this issue in State v. Archuleta, 1989-NMCA-022, 15, 108 N.M. 397, 772
8 P.2d 1320 where we concluded that Boeglin did not require a waiver of applicable
9 lesser-included instructions. See id. ("We do not read Boeglin as holding that [a]
10 defendant has a right to waive a lesser included offense instruction but rather that he
11 	has the right to have ·a lesser included offense instruction given where the ·evidence
12 supports it."). Therefore, we conclude that there was no fundamental error and
13 	Defendant was not deprived of due process under the circumstances.
14 IV. 	No Prima Facie Case of Ineffective Assistance of Counsel
15 	{27} 	We next address Defendant's argument that he received ineffective assistance
16 of counsel because his trial counsel: (1) did not seek the lesser-included offense of
17 possession of paraphernalia; (2) failed to file a motion to suppress the evidence
18 	seized in the search of the red pouch based on a lack of probable cause; and (3) failed
19 to admit photographs of window awnings on the Rescue Mission building that may
20 have blocked the view of Officer Galvan.
17

1 {28} 	"The Sixth Amendment to the United States Constitution, applicable to the
2 states through the Fourteenth Amendment, 	guarantees 	defendants 	in 	criminal
3 proceedings the right to effective assistance of counsel." State v. Cordova, 2014-
4 NMCA-081, 16,331 P.3d 980. "Our Supreme Court has expressed a preference that
5 ineffective 	assistance 	of 	counsel 	claims 	be 	adjudicated 	i~ 	habeas 	corpus
6 .proceedings, rather than on direct appeal." Id. ,-r 7. As such, this Court will remand
7 for an evidentiary hearing only when the record on appeal supports a prima facie
8 case of ineffective assistance of counsel. See id. ,-r 7. A prima facie case of ineffective
9 assistance 	of 	counsel 	requires 	Defendant 	to 	establish 	that: 	"(1) 	counsel's
10 performance fell below that of a reasonably competent attorney; (2) no plausible,
11 	rational strategy or tactic explains counsel's conduct; and (3) counsel's apparent
12 failings were prejudicial to the defense." Id. 	,-r 9 (internal quotation marks and
13 	citation omitted).
14 {29} 	First, as noted above, the failure to seek the instruction on the lesser-included
15 offense of drug paraphernalia could very well have been a tactical decision by
16 D~fendant' s trial counsel. For the same reasons discussed above, we. conclude, based
17 on the record before us, that Defendant has not made a prima facie case for
18 	ineffective assistance of counsel as to this claim.
19 	{30} 	Second, Defendant argues that the arresting officers lacked probable cause to
20 arrest and subsequently search the red pouch based only on Officer Galvan's
18

1 observations. Therefore, Defendant argues that his trial counsel should have moved
2 to _suppress 	the evidence obtained in the search incident to his arrest. When
3 evaluating the reasonableness prong of an ineffective a~sistance of counsel claim
'
4 premised on counsel's failure to file a motion to suppress evidence, "[a d]efendant
5 must establish that the facts support the motion to suppress and that a reasonably
6 competent attorney could not have decided that such a motion was unwarranted."
7 State v. Mosley, 2014-NMCA-094, ~ 20,335 P.3d 244 (internal quotation marks and
8 citation omitted). "A warrantless arrest is valid where the officer ha[ d] probable
~
9 cause to believe that a crime has been committed by the person whom he [or she]
10 arrests." State v. Jones, 1981-NMSC-013, ~ 7, 96 N.M. 14, 627 P.2d 409. Probable
11 	cause exists when "facts and circumstances within the officer's knowledge, or about
12 which the officer has reasonably trustworthy information, are sufficient to warrant
13 	an officer of reasonable caution to believe that an offense is being committed or has
14 been committed." State v. Sanchez, 2001-NMCA-109, ~ 6, 131 N.M. 355, 36 P.3d
15 	446.
16 	{31} 	Contrary to Defendant's 	assertion,' probable cause existed when Officer
17 Galvan witnessed Defendant produce the pipe, smoke it in a manner that a crack
18 	cocaine pipe is traditionally smoked, and do so within fifteen feet of his location. At
19 a minimum, Officer Galvan had probable cause to arrest Defendant for possession
20 	of drug paraphernalia at the time he saw him with a crack cocaine pipe. See State v.
19

l 	Ochoa, 	2008-NMSC-023, 1 	11, 	143 	N.M. 749, 	182 P.3d 130 ("[W]arrantless
2 misdemeanor arrests [are permitted] if the officer has probable cause to believe that
3 a misdemeanor was committed in the officer's presence."). This would justify a
4 search of the red pouch based on a search incident to that arrest. See State v.
5 Paananen, 2015-NMSC-031, 114, 31, 357P.3d958 (holding that it was a reasonable
6 warrantless search incident to arrest for an officer to open a cigarette package
7 belonging to the defendant that had been placed on a nearby table after officers had
8 placed the defendant under arrest). A reasonably competent attorney could have
9 decided a motion to suppress the evidence was unwarranted.
10 {32} 	Lastly, Defendant claims trial counsel should have admitted photographs of
11 	window awnings from the Rescue Mission to establish that Officer Galvan did not
12 have a clear view of Defendant and Valdez. Officer Galvan testified that the building
13 	did have window awnings, but they did not obstruct his view of Defendant and
14 Valdez. Defendant presented no evidence at trial establishing the contrary. As such,
15 	a reasonably competent attorney would not seek to admit photographs that would
16 not refute Officer Galvan's testimony. Therefore, as to all three contentions, we hold
17 Defendant has failed to demonstrate a prima facie case of ineffective assistance of
· 1g counsel. Nonetheless, Defendant may stip bring his claims through habeas corpus
19 proceedings. See State v. Martinez, 1996-NMCA-109, 125, 122 N.M. 476,927 P.2d
20 	31 ("This Court has expressed its preference for habeas corpus proceedings over
20

1 remand when the record on appeal does not establish a prima facie case of ineffective
2 assistance of counsel.").'
3 V. 	Defendant's Right to a Speedy Trial Was Not Violated
4 	{33} 	The Sixth Amendment guarantees that in criminal cases "the accused shall
5 enjoy the right to a speedy ... trial[.]" U.S. Const. amend. VI; see N.M. Const. art.
6 II § 14 ("[T]he accused shall have the right to ... a speedy ... trial."). "Speedy trial
7 analysis under the United States Constitution requires a balancing and weighing of
8 several factors, including the length of delay, the cause of the delay, timely assertion
9 of right, and prejudice to the accused." State v. Spearman, 2012-NMSC-023, ,r 1,
10 283 P.3d 272. We determine whether Defendant's right to a speedy trial has been
11 	violated analyzing the particular facts of his case. See id. ,r 16. "[W]e give deference
12 to the district court's factual findings, but we review the weighing and the balancing
13 	of the [four factors] de novo. Id. ,r 19 (alteration, internal quotation marks, and
14 citation omitted).
15 	A. 	Length of Delay
16 	{34} 	"The length of the delay is a two-fold inquiry. Initially, we determine whether
17 the delay is ,presumptively prejudicial. If it is presumptively prejudicial, we balance
18 the length of the delay against the remaining three factors to assess whether the
19 constitution has been violated." State v. Laney, 2003-NMCA-144, ,r 11,-134 N.M.
20 648, 81 P.3d 591. The guidelines for determining whether a case is presumptively
21

1 prejudicial depends on the complexity of the case-one year for a simple case,
2 fifteen months for a case of intermediate complexity, and eighteen months for a
3 complex case. State v. Garza, 2009-NMSC-038, ,12 146 N.M. 499, 212 P.3d 387.
4 The district court categorized this as a simple case and thus a twelve-month delay
5 would be presumptively prejudicial. See State v. O'Neal, 2009-NMCA-020, ,1 16,
6 	145 N.M. 604,203 P.3d 135 ("We defer to the district court's finding on the question
7 of complexity when it is supported by substantial evidence." (internal quotation
8 marks and citation omitted)).
9 	{35} 	To determine the 	length 	of delay we must first 	identify the 	date that
10 Defendant's right to speedy trial attached. "In general, the right attaches when the
.11 	defendant becomes 	an accused, that is, 	by a filing 	of a formal indictment or
12 	information or arrest and holding to answer." State v. 	Urban, 2004-NMSC-007,
13 ,112, 135 N.M. 279, 87 P.3d 1061 (internal quotation marks and citation omitted).
14 Defendant's right to a speedy trial attached on September 12, 2012, because he was
15 released from custody after his arrest and was not held to answer until the time of
16 the indictment. See id.· ,r 12 (holding that a defendant was not held to answer until
17 the time of his indictment); State v. Sanchez, 1989-NMCA-001, ,18, 108 N.M. 206,
18 	769 P .2d 1297 (holding that "arrest alone, without posting bond, imposition of
19 restrictive conditions of release, or being held to answer for unresolved criminal
20 	charges does not trigger a defendant's speedy trial rights"). Between the date of
22

1 Defendant's indictment on September 11, 2012, and the Defendant's trial setting on
2 November 17, 2014, the case was pending approximately 26 months, which exceeds
3 the 	12-month threshold for a simple case. This demonstrates a presumptively
4 prejudicial delay, requiring this Court to weigh and balance the four factors.
5 	{36} 	In determining the weight to be given to the length of delay, "the greater the
6 delay[,] the more heavily it will potentially weigh against the [s]tate." Garza, 2009-
7 NMSC-038, 1 24. Here, the delay is more than twice as long as the 12-month
8 threshold ·and therefore this factor weighs heavily against the State. See State v:
9 	Taylor, 2015-NMCA-012, 19, 343 P.3d 199 (weighing delay that was nearly twice
10 the "[12]-month threshold for [a] simple case[,]" heavily against the state).
11 	B. 	Reason for the Delay
12 	{37} 	There are three types of delay that may be weighed against the State at varying
13 	levels: (1) deliberate attempts to delay the trial to thwart the defense weigh heavily
14 against the State; (2) negligent or administrative delay weighs less heavily against
15 	the State; (3) delay that is justified by a valid reason is weighed neutrally. Garza,
16 	2009-NMSC-038, 1 25. The reasons for the delay may heighten or temper the
17 prejudice caused by the length of delay. State v. Serros, 2016-NMSC-008, 129,366
18 P.3d 1121. While the district court did not evaluate the specific periods of delay, it
19 concluded, "Defendant has largely contributed to, or been accountable for, the delay
20 in bringing the case to trial." We agree.
23

1 1. 	Neutral Time Period
2 	{38} 	Based on our review of the record, the initial period of delay commenced on
3 September 11, 2012, when Defendant was indicted and ended when the case went
4 into warrant status on May 17, 2013. During this time, the case appeared to be
5 proceeding with customary promptness 	as 	counsel 	entered their 	appearances,
6 Defendant was arraigned, witnesses were disclosed, discovery was exchanged, and
7 witness interviews were being scheduled. See State v. Valencia, 2010-NMCA-005,
8 ,r 18, 147 N.M. 432, 224 P.3d 659 (indicating that "where a case moves toward trial
9 with customary promptness, the period of time is to be weighed neutrally between
10 the parties" (internal quotation marks and citation omitted)). At the March 13, 2013,
11 	status conference, the parties agreed to reset the conference for a later date. Because
12 the parties mutually agreed to the delay, we also cannot weigh this period against
13 	either side. See State v. Mascarenas, 1972-NMCA-106, ,r 6, 84 N.M. 153, 500 P.2d
14 438 ("[W]here a defendant ... consents to the delay, he may not complain of a denial
15 	of the right [to a speedy trial]."). For these reasons, we weigh this approximately 8-
16 month period of delay neutrally.
17 2. 	_Delay Attributed to Defendant
18 	{39} 	The first period of delay attributed to Defendant began on May 17, 2013, when
19 the district court issued a bench warrant because Defendant altogether .stopped
20 reporting to pretrial services, and ended on August 14, 2013. Defendant also failed
24

1 to appear at the May 30, 2013 status conference. The case remained in warrant status
2 until August 12, 2013, when Defendant was arrested on the warrant.
3 	{40} 	The 	second period 	of delay that weighs against Defendant arose 	from-
4 Defendant's request for a new attorney on October 16, 2013, to the status conference
5 held on March 26, 2014. Defendant filed a motion indicating he no longer wanted
6 representation by any attorney employed with the public defender's office, including
7 his assigned public defender. Instead, he requested that the court appoint him
8 contract counsel. Cf State v. Hernandez, 1986-NMCA-040, 18, 104 N.M. 268, 720
9 P.2d 303 ("As a general rule, an indigent defendant has no right to choose or
10 substitute his appointed counsel."). The supervisor for Defendant's public defender
11 	attended the hearing and informed the district court that she was confident that
12 Defendant was receiving effective assistance of counsel. Defendant asserted that he
13 	had "been sold out multiple times from Isic] the public defenders" and felt that "the
14 public defender was not advocating for him to the best of his ability." The district
15 	court granted Defendant's request, ordered his assigned public defender to withdraw
16 as counsel, and ordered that contract counsel be appointed. The district court did not
17 determine that Defendant was receiving ineffective assistance of counsel or that his
· 18 public defender was delaying or neglecting his case, rather, the district court stated
19 that "there's an attorney/client breakdown." The district court cautioned Defendant
20 that the court did not "want this to tum into ... some sort of lawyer musical chairs,"
25

1 and stated that the court would not permit Defendant to change attorneys again. As
2 a result, Defendant's public defender withdrew on October 21, 2013, and Defendant
3 was assigned contract counsel, Leanne Kerr, who entered an appearance, filed a
4 witness disclosure, and requested discovery almost a month later on November 14,
5 2013. Ms. Kerr only. represented Defendant for a couple of months.
6 	{41} 	On January 3, 2014, another attorney, Matthew Huggins, filed an entry of
7 appearance and a request for discovery on behalf of Defendant. Despite having filed
8 an entry of appearance over a month prior, Defendant's new attorney indicated he
9 had yet to meet with his client and requested that the district court reschedule the
10 February 26, 2014 status conference. See Ochoa, 2017-NMSC-03 l, ,-r 18 ("[D]elay
11 	initiated by defense counsel generally weighs against the defendant."); State v.
12 Deans, 2019-NMCA-015, ,-r 18, 435 P.3d 1280 (stating generally the defendant is
13 	held accountable for delays such as "stipulated continuances and removing defense
14 counsel").
15 	{42} 	The final period of delay we attribute to Defendant is from May 16, 2014 to
16 July 12, 2014 and one additional month from October 7, 2014 to November 17, 2014.
17 Again, Defendant failed to comply with pretrial services and a warrant was issued
18 on May 16, 2014. Because the case was in warrant status, the district court vacated
19 the October trial setting. Defendant was arrested on the warrant on July 12, 2014.
20 Defendant's non-appearance resulted in another six-week delay from October 7th to
26

1 November 	17, 	2014. The total amount 	of delay attributed to Defendant was
2 approximately eleven months.
3 3. 	Delay A.ttributed to the State
· 4 {43} 	The record is silent as to the cause of the delay during three periods: (1)
5 August 13, 2013 to October 15, 2013; (2) March 27, 2014 to May 15, 2014; and (3)
6 July 13, 2014 to October 6, 2014. The record is unclear as to how the State was
7 fulfilling its obligation to progress this case forward during this time. Thus, this
8 delay, which totals less than seven months, we deem negligent or administrative
9 delay that weighs against the State.
10 {44} 	In sum, the entire delay was approximately twenty-six months. The State was
11 	not responsible for most of this delay-with less than seven months of delay
12 weighing against the State. The remaining delay weig~ed neutrally or was attributed
13 	to Defendant. Therefore, we do not weigh this factor against the State.
14 C. 	Assertion of the Right
15 	{45} 	In evaluating the third Barker factor we look to the "frequency and force" of
16 the defendant's objections· to the delay. Garza, 2009-NMSC-038, ,r 32 (internal
17 quotation marks 	and citation omitted). 	We 	assess the timing 	of Defendant's
18 	assertions of his right to a speedy trial, the manner in which Defendant asserted the
19 right and his actions with regard to the delay. See id. We afford "relatively little
20 weight" to pro forma assertions. See Urban, 2004-NMSC-007, ,r 16. A motion to
27

1 dismiss on speedy trial grounds is an assertion of the right that is weighed against
2 the State, although not heavily. State v. Lujan, 2015-NMCA-032, ,r 18, 345 P.3d
3 	1103.
4 	{46} 	Defendant made several verbal and written assertions of his right to a speedy
5 trial. Defendant verbally asserted his right to a speedy trial at his initial arraignment
6 and at three different hearings between March 2013 	and November 2014. In
7 addition, Defendant made pro forma assertions in entry of appearances filed by his
8 attorneys. On the eve of trial, Defendant filed his motion to dismiss on speedy trial
9 grounds. This Court will afford less weight to a motion to dismiss on speedy trial
10 grounds if it is filed relatively close to the scheduled trial. See Gallegos, 2016-
11 	NMCA-076, ,r 25 (holding that filing a motion to dismiss on speedy trial grounds six
12 weeks before trial is given less weight in a speedy trial analysis than if the motion
13 	was filed earlier).
14 	{47} 	While Defendant may have made numerous assertions requesting a speedy
15 	trial, his actions were to the contrary. Despite these requests, Defendant failed to
16 appear in court on one occasion and failed to report to pre-trial services on other
17 occasions, which resulted in delaying the trial in this case. Additionally, Defendant
18 	acquiesced in or requested rescheduling of status conferences. Accordingly, we
19 weigh this factor only slightly in Defendant's favor. See State v. Samo_ra_, 2016-
28

1 NMSC-031, ,r 20,387 P.3d 230 ("Defendant's assertions of the right were mitigated
2 by his acquiescence to, and responsibility for, numerous delays.").
3 D. 	Prejudice
4 	{48} 	Defendant argues 	that he 	was 	prejudiced ·based 	on the 	time 	he 	spent
5 incarcerated, a period that included time incarcerated on a no-bond hold. The district
6 court agreed that the length of Defendant's incarceration "has caused him prejudice,"
7 but did not make a specific finding as to whether there was particularized prejudice
8 in this case.
9 {49} 	"The heart of the right to speedy trial is preventing prejudice to the accused."
IO 	Garza, 2009-NMSC-038, ,r 12. In analyzing whether the Defendant was prejudiced
11 	we consider whether there was (1) oppressive pretrial incarceration (2) anxiety and
12 concern of the accused and (3) impairment of Defendant's defense. Id. 	,r 35.
13 	Defendant only argues prejudice based on the time he spent incarcerated and thus,
14 we need not address the other two factors in analyzing prejudice.
15 	{50} 	"The oppressive nature of the pretrial incarceration depends on the length of
16 incarceration, whether the defendant obtained release prior to trial, 	and what
17 prejudicial effects the defendant has shown as a result of the incarceration." Serros,
18 	2016-NMSC-008, ,r 89 (internal quotation marks and citation omitted). Because
19 some degree of oppression and anxiety is inherent for every defendant who is jailed
20 while awaiting trial, a defendant must make a "particularized showing" that the pre-
29

1 trial incarceration is.undue. Id. Without such a showing, we will not speculate as to
2 the impact of pretrial incarceration on Defendant. Garza, 2009-NMSC-038, ,r 35.
3 	{51} 	Here, Defendant failed to "offer proof in the form of affidavits, testimony, or
4 other documentation to support his prejudice claim[,]" which requires us "to assess
5 the prejudice factor with little assistance from [the d]efendant." 	Ochoa, 	2017-
6 NMSC-031, ,r 49; but see State v. Salazar, 2018-NMCA-030, ,r. 28, _ 	P.3d _
7 ("[A]lthough [the d]efendant may have experienced some anxiety and concern as a
8 result of his pretrial incarceration, he has made no showing that such anxiety or
9 concern was undue beyond bare allegations."), cert. denied, 2018-NMCERT-_
10 (No. S-l-SC-36939, Apr. 13, 2018). Instead, Defendant relies exclusively on what
11 	the district court found to be sixteen months of non-continuous incarceration. The
12 primary reason the district court continued remanding Defendant into custody was a
13 	result of his own misconduct-repeatedly violating conditions of release, failing to
14 report to pretrial services, and failing to appear to court. Absent any other proof of
15 particularized prejudice, we decline to weigh this factor in Defendant's favor. See
16 	Ochoa, 2017-NMSC-031, ,r,r 3, 60 (noting the defendant suffered "some prejudice"
17 as a result of two years of continuous pretrial incarceration, but concluding that
18 "absent affirmative proof, we can only speculate as to the specific circumstances of
19 his incarceration"); Deans, 2019-NMCA-015, ,r 26 (declining to weigh the prejudice
30

1 factor in a defendant's favor based on a lack of particularized showing of prejudice
2 	and the benefit defendant received from the delay due to a change in the law).
3 E. 	Balancing the Factors
4 	{52} 	-In balancing the four factors, "no one factor is either a necessary or sufficient
5 condition to the finding of a deprivation of the right of speedy trial." Id. 127 (internal
6 quotation marks and citation omitted) .. We weigh the length of delay heavily in
7 Defendant's favor, the reasons for the delay against Defendant, the assertion of the
8 right slightly in Defendant's favor, and we decline to weigh the prejudice factor in
9 Defendant's favor based on the lack of particularized prejudice. Having weighed the
10 four factors, we conclude that the State did not violate Defendant's right to a speedy
11 	trial.
12 	CONCLUSION
13 	{53} 	For the aforementioned reasons, we reverse and remand to the district court
14 for it to enter an order vacating Defendant's conviction for conspiracy to commit
15 	possession of a controlled substance. We otherwise affirm.
16 {54} 	IT IS SO ORDERED.
17
18
31

I CONCUR:

A Mi VANZI, Judge

KRISTINA BOGARDUS, Judge (specially concurring).

32

1 BOGARDUS, Judge (specially concurring).
2 	{55} 	I concur in the result reached by the majority. I write separately to express my
3 concern that strict interpretation of Section 30-31-23 (D )' s phrase "any amount of
4 any controlled substance" leaves open the possibility that defendants are charged-
5 and 	prosecuted-for 	possessing 	amounts 	of 	drugs 	detectable 	only 	through
6 microscopic analysis or gas chromatography. It seems that plain-language analysis
7 of this statute may not be appropriate given that our precedent has evolved to permit
8 convictions for possession of increasingly trace amounts of controlled substances-
9 not because of policy considerations, but because of technological improvements in
10 	forensic drug testing. I recognize that we are bound by precedent, see Trujillo, 1998-
11 	NMSC-031, ,r .33, and thus concur in the result reached by the majority.
12 	{56} 	Nevertheless, 	I 	suggest 	that 	this 	and 	similar 	cases 	would 	be 	more
13 	appropriately. analyzed by adopting the approach in Muqqddin, 2012-NMSC-029. In
14 Muqqddin, our Supreme Court cautioned against blurring "fine-line junctures" with
15 	an "ever-broadening" definition of burglary, especially where the criminal acts are
16 "already punish[able] under our statutes as other, lesser crimes." Id. ,r 50. Because
17 Defendant's conduct in the instant case is already punishable by the crime of
18 possession 	of 	drug 	paraphernalia, 	NMSA 	1978, 	§ 30-31-25.1 	(2001), 	using
19 Muqqddin's approach to determine where the crime of possession of a controlled
20 substance ends and the crime of possession of drug paraphernalia begins seems
33

1 particularly appropriate. At"the very least, I urge our Supreme Court and Legislature
2 	to review the applicable statute and its application, in light of the circumstances of
3 this case.
4
5 ~/a,,-~
KRisTINA BO 	US, Judge
34