January 27, 2020- State of New Mexico v. Joshua Grantham, No. A-1-CA-37413

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication
with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly
in Odyssey.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37413	4
JOSHUA GRANTHAM,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY	7
Lisa B. Riley, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Todd B. Hotchkiss, Attorney at Law, LLC	13
Todd B. Hotchkiss	14
Albuquerque, NM	15
for Appellant	16
MEMORANDUM OPINION	17
MEDINA, Judge.	18
{1} 	Defendant 	Joshua 	Grantham, 	appeals 	his 	convictions 	for 	trafficking 	a	19
controlled substance, contrary to NMSA 1978, Section 30-31-20 (2006), and	20
possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1(A)	21
(2001, amended 2019). Defendant raises two issues on appeal (1) that his Sixth	22
Court of Appeals of New Mexico
Filed 1/27/2020 9:32 AM

2
Amendment right to counsel was violated and (2) reversal is required because of a	1
difference between the date in the criminal information and the actual date of the	2
offenses. We affirm.	3
BACKGROUND	4
{2} 	On July 15, 2014, the officers of the Pecos Valley Drug Task Force (PVDTF),	5
executed a search warrant on Defendant’s house and found twenty five grams of	6
heroin, syringes, a digital scale, and plastic baggies. Defendant was handcuffed,	7
Mirandized, 	and 	questioned 	by 	Deputy 	David 	Whitzel. 	During 	questioning	8
Defendant admitted to possessing heroin and to fronting heroin to a friend.	9
Defendant was subsequently charged but the criminal information mistakenly	10
alleged that each offense occurred on July 7, 2014.	11
{3} 	Six witnesses testified at trial including Defendant. At the close of trial the	12
jury convicted Defendant of trafficking by possession with intent to distribute and	13
possession of drug paraphernalia. This appeal followed. We discuss additional facts	14
as they relate to issues presented.	15
DISCUSSION	16
I. 	The District Court Did Not Err In Denying Defendant’s Motion to	17
Suppress	18
{4} 	Defendant argues that his Sixth Amendment right to counsel was violated	19
when the PVDTF questioned him after his arrest and as a result, statements he made	20
to Deputy Whitzel should have been suppressed. Specifically, Defendant contends	21

3
that Deputy Whitzel questioned him about a crime for which “adversarial [judicial]	1
proceedings were initiated.” Our review of motions to suppress represents “a mixed	2
question of law and fact.” State v. Davis, 2018-NMSC-001, ¶ 10, 408 P.3d 576	3
(internal quotation marks and citation omitted). “We review the factual analysis for	4
substantial evidence and review the legal analysis de novo.” Id.	5
{5} 	The Sixth Amendment to the United States Constitution provides that: “In all	6
criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of	7
Counsel for his defense.” Right to counsel under the Sixth Amendment ordinarily	8
attaches when judicial criminal proceedings have been initiated, “by way of formal	9
charge, preliminary hearing, indictment, information, or arraignment.” See Kirby v.	10
Illinois, 406 U.S. 682, 689 (1972) (plurality opinion) (noting that the right to counsel	11
attaches when government begins “adversary judicial criminal proceedings”); see	12
also Rothgery v. Gillespie Cty., Tex, 554 U.S. 191, 194, 198 (2008) (reaffirming that	13
the right to counsel attaches at the initiation of adversarial judicial criminal	14
proceedings, explicitly tying the Sixth Amendment right to counsel to “the first	15
appearance before a judicial officer at which a defendant is told of the formal	16
accusation against him and restrictions are imposed on his liberty”); State v. Aragon,	17
1990-NMCA-001, ¶ 10, 109 N.M. 632, 788 P.2d 932 (stating the right to counsel	18
“ordinarily attaches when judicial proceedings have been initiated, by way of formal	19
charge, preliminary hearing, indictment, information, or arraignment”). Further, the	20

4
United States Supreme Court has never held that the right to counsel attaches at	1
arrest. See United States v. Gouveia, 467 U.S. 180, 190 (1984) (commenting that	2
“we have never held that the right to counsel attaches at the time of arrest”).	3
{6} 	Consistent with federal law, our State jurisprudence has held that the initiation	4
of 	adversarial 	judicial 	criminal 	proceedings 	is 	the 	time 	at 	which 	the 	Sixth	5
Amendment right to counsel attaches. See State v. Rivas, 2017-NMSC-022, ¶ 39,	6
398 P.3d 299 (stating that once the adversary judicial process has been initiated the	7
Sixth 	Amendment 	guarantees 	the 	defendant 	the 	right 	to 	counsel); 	State 	v.	8
Kanikaynar, 1997-NMCA-036, ¶ 14, 123 N.M. 283, 939 P.2d 1091 (“Without	9
question, the right to counsel guaranteed by the [S]ixth [A]mendment to the United	10
States Constitution does not attach until formal charges are initiated.” (internal	11
quotation marks and citation omitted)); Aragon, 1990-NMCA-001, ¶ 10 (“[The	12
Sixth Amendment] right [to counsel] ordinarily attaches when judicial proceedings	13
have been initiated, by way of formal charge, preliminary hearing, indictment,	14
information, or arraignment.”).	15
{7} 	Here, adversarial proceedings against Defendant had not been initiated when	16
he was questioned by Deputy Whitzel on July 15, 2014. We explain.	17
{8} 	The facts developed at the motion to suppress hearing in which Defendant	18
raised a Sixth Amendment violation claim revealed the following. Prior to July 15,	19
2014, Defendant hired an attorney to negotiate a confidential informant agreement	20

5
with the task force. Deputy Jeffery Clifton met with Defendant’s attorney in March	1
2014 to negotiate an informant agreement. However, no agreement was entered	2
between the PVDTF and Defendant prior to July 15, 2014. On July 15, 2014, Deputy	3
Whitzel was unaware of Defendant’s efforts to negotiate a confidential informant	4
agreement with the PVDTF. In addition Defendant never stated that he had an	5
attorney nor did he request to speak with an attorney during his July 15, 2014,	6
interview by Deputy Whitzel.	7
{9} 	The district court denied Defendant’s motion to suppress finding among other	8
things, that Defendant was not working with the PVDTF on July 15, 2014; no	9
criminal charges were pending against Defendant at the time of his July 15, 2015,	10
questioning; 	Defendant 	had 	been 	properly 	Mirandized 	and 	Defendant 	never	11
requested an attorney or that questioning be stopped.	12
{10} 	Because adversarial judicial proceedings against Defendant had not been	13
initiated on July 15, 2014, we conclude that his Sixth Amendment right to counsel	14
had not attached, and affirm the denial of Defendant’s motion to suppress.	15
{11} 	In asserting his Sixth Amendment claim, Defendant relies upon a pre-Miranda	16
case, Escobedo v. Illinois, 378 U.S. 478 (1964). Defendant asserts that Escobedo	17
recognizes that the right to counsel is not “predicated on whether a formal indictment	18
[has] occurred.” Defendant’s reliance on Escobedo is unavailing. Later authority	19
made clear that Escobedo applies only to a defendant’s Fifth Amendment rights. See	20

6
Moran v. Burbine, 475 U.S. 412, 429 (1986) (“At the outset, subsequent decisions	1
foreclose any reliance on Escobedo and Miranda for the proposition that the Sixth	2
Amendment right, in any of its manifestations, applies prior to the initiation of	3
adversary judicial proceedings.”). Thus, Escobedo does not support Defendant’s	4
claim that his Sixth Amendment right to counsel was violated.	5
{12} 	To the extent Defendant argues that his engagement of counsel to negotiate a	6
confidential informant agreement with the PVDTF triggered Sixth Amendment	7
protections, we are unpersuaded. No formal information or indictment had been filed	8
in 	any 	of 	the 	prior 	investigations 	giving 	rise 	to 	the 	confidential 	informant	9
negotiations, thus, under our analysis the right to counsel had not yet attached. Even	10
had formal charges been filed the Sixth Amendment right to counsel would not have	11
applied to Defendant’s statements in this case. See Rivas, 2017-NMSC-022, ¶ 40	12
(“The Sixth Amendment right is narrower in at least one sense—it is offense-	13
specific, unlike Miranda’s Fifth Amendment right against self-incrimination—and	14
is thus of no help with respect to questioning regarding matters not yet subject to	15
adversarial proceedings.”).	16
{13} 	Finally, to the extent Defendant argues that adversarial proceedings were	17
initiated by the execution of a search warrant he failed to provide us with any	18
authority in support of his contention. To the contrary, our case law explicitly	19
distinguishes between the functions of law enforcement and those of prosecution.	20

7
See State v. Sandoval, 1984-NMCA-053, ¶ 14, 101 N.M. 399, 683 P.2d 516	1
(rejecting a claim that right to counsel attached when police issued citations after	2
arresting the defendants for driving while intoxicated: “[a] bright line must be drawn	3
between the authority invested in the [s]tate’s law enforcement officers and that	4
invested in the [s]tate’s prosecutors”). Issuance of a search warrant does not mark	5
the beginning of adversarial judicial proceedings, but rather, represents judicial	6
oversight of law enforcement’s investigative activities. See State v. Wagoner, 1998-	7
NMCA-124, ¶ 9, 126 N.M. 9, 966 P.2d 176 (stating that “[t]he chief function of the	8
warrant requirement is to permit a judge to oversee the investigative activities of law	9
enforcement officers”).	10
II. 	The Difference Between the Offense Date In the Criminal Information	11
and the Actual Date of Offense Does Not Require Reversal	12
{14} 	Defendant’s contention and applicable standards are unclear. We understand	13
his argument to be that the difference in the offense date in the information (July 7,	14
2014) and the actual date of the offense (July 15, 2014) warrant reversal. We are not	15
persuaded.	16
{15} 	Rule 5-204(C) NMRA provides that:	17
No variance between those allegations of a complaint, indictment,	18
information or any supplemental pleading which state the particulars of	19
the offense, whether amended or not, and the evidence offered in	20
support thereof shall be grounds for the acquittal of the defendant unless	21
such variance prejudices substantial rights of the defendant. The court	22
may at any time allow the indictment or information to be amended in	23
respect to any variance to conform to the evidence. If the court finds	24

8
that the defendant has been prejudiced by an amendment, the court may	1
postpone the trial or grant such other relief as may be proper under the	2
circumstances.	3
“We review a district court’s interpretation and application of Rule 5-204 de	4
novo.” State 	v. 	Branch, 2010-NMSC-042, 	¶ 	19, 	148 	N.M. 	601, 	241 	P.3d	5
602, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37, 275	6
P.3d 110.	7
{16} 	“A criminal indictment or information need not contain exacting detail as	8
long as the defendant is given sufficient notice of the charges.” State v. Stevens,	9
2014-NMSC-011, ¶ 50, 323 P.3d 901; State v. Cawley, 1990-NMSC-088, ¶ 13, 110	10
N.M. 705, 799 P.2d 574 (recognizing accused’s right to be apprised of the charge	11
against him and that not all charging documents need to establish the time or date of	12
the offense); State v. Baldonado, 1998-NMCA-040, ¶¶ 18-21, 124 N.M. 745, 955	13
P.2d 214 (recognizing the need to reconcile a defendant’s “due process right to	14
reasonable notice of the charges” and difficulties arising from the prosecution of	15
criminal sexual charges committed against children that often have difficulty	16
remembering precise dates of crimes committed against them); accord Rule 5-	17
205(A)(1) NMRA (“It shall be unnecessary for a complaint, indictment or an	18
information to contain the [time of the commission of the offense] unless such	19
allegations are necessary to give the defendant notice of the crime charged[.]”).	20

9
{17} 	In this case the information alleged a July 7, 2014, offense date. The actual	1
events lending to the information took place on July 15, 2014. Before trial, in	2
anticipation of the State’s evidence, Defendant filed a motion in limine in which he	3
asserted that his criminal prosecution resulted from a “July 15, 2014 raid.” During	4
trial the audio recording of Defendant’s statements made on July 15, 2014, was	5
played for the jury and photo exhibits of the items found in Defendant’s home on	6
that date were entered into evidence.	7
{18} 	Although Commander Lenin Leos of the PVDTF initially stated that the	8
search and arrest occurred on July 7, 2014, he later testified that the date may have	9
been July 15, 2014. Similarly, Deputy Whitzel and Officer Jorge Martinez, testified	10
that the date of the search involving Defendant was July 15, 2014.	11
{19} 	After resting its case, the State advised the district court and Defendant that it	12
had amended the jury instructions to reflect an offense date of July 15, 2014,	13
effectively amending the information. Defendant made no objection to the amended	14
instructions and made no claim of prejudice before presenting his case. Defendant	15
testified on his own behalf and referred to the date of the search as July 15, 2014.	16
{20} 	We therefore conclude that Defendant had sufficient notice of the charges and	17
he provides no evidence to the contrary. Moreover it is established that a formal	18
amendment to the charging document is not required.	19

10
{21} 	Defendant cites State v. Mankiller, 1986-NMCA-053, 104 N.M. 461, 722 P.2d	1
1183, arguing that the date in the criminal information became a material allegation	2
of the offenses charged, such that the State was precluded from establishing	3
Defendant’s guilt based on a different date. In Mankiller we held that the date of the	4
offense was material to the defense where the defendant could not have anticipated	5
from the date specified in the indictment that the state would present evidence that	6
the crime occurred nearly two months later. Id. ¶ 17. In contrast, and as we	7
previously noted, Defendant filed a pre-trial motion in limine in which he asserted	8
that his criminal prosecution resulted from a “July 15, 2014 raid” demonstrating that	9
he was on notice that the State would be presenting evidence to prove that his crimes	10
occurred on July 15, 2014.	11
{22} 	We therefore find no error in the amendment to the information and conclude	12
that the jury was properly instructed that it had to find that the offenses were	13
committed 	on 	July 15, 2014. For the reasons 	above Defendant’s 	claims 	of	14
insufficient evidence based on the offense date, and plain or fundamental error are	15
without merit.	16
CONCLUSION	17
{23} 	For the reasons set forth above, we affirm Defendant’s convictions. We	18
remand to the district court for correction of the judgement and sentence to reflect	19
the correct offense date.	20

11
{24} 	IT IS SO ORDERED.	1
______________________________	2
JACQUELINE R. MEDINA, Judge	3
WE CONCUR:	4
____________________________	5
M. MONICA ZAMORA, Judge	6
____________________________	7
JULIE J. VARGAS, Judge	8