State v. Gallegos

This decision of the Supreme Court of New Mexico was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Filing Date: January 28, 2021

No. S-1-SC-37313

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

TONY GALLEGOS,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
James Lawrence Sanchez, District Judge

L. Helen Bennett, P.C.
Linda Helen Bennett
Albuquerque, NM

Amavalise F. Jaramillo
Tome, NM

Bennett J. Baur, Chief Public Defender
C. David Henderson, Appellate Defender
Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General
Walter M. Hart III, Assistant Attorney General
Santa Fe, NM

for Appellee

DECISION

BACON, Justice.
{1} Defendant Tony Gallegos appeals his life sentence directly to this Court pursuant
to Rule 12-102(A)(1) NMRA, raising two issues: (1) ineffective assistance of counsel
stemming from his attorney’s potential conflict of interest, and (2) sufficiency of the
evidence. For the ineffective assistance of counsel issue, Defendant argues that his
attorney, Amavalise Jaramillo, had an actual conflict of interest created by Jaramillo’s
previous unrelated representation of the State’s key witness in this case, Cody Cruz.
This conflict, according to Defendant, resulted in a curtailed cross-examination of Cruz,
whose testimony was crucial to the State’s theory of the case. The sufficiency of the
evidence argument, raised pursuant to State v. Franklin and State v. Boyer,1 asserts
that Cruz was not a reliable witness, and that his allegedly unreliable testimony cannot
support Defendant’s convictions.

{2} We affirm Defendant’s convictions.2 As to Defendant’s ineffective assistance of
counsel claim, we find the record wanting for information to support Defendant’s
argument. While briefing certainly illuminates a potential conflict of interest, the record
lacks critical facts to establish an actual conflict of interest was created by Jaramillo’s
representation of Cruz and subsequent representation of Defendant. We stress,
however, that Defendant’s ineffective assistance of counsel claim is more appropriately
suited for a habeas corpus petition, wherein Defendant can develop a factual record
regarding Jaramillo’s potential conflict of interest.

I. RELEVANT BACKGROUND

A. Factual Background

{3} On the afternoon of April 24, 2014, Defendant, Cruz, and Defendant’s cousin,
Phillip Chavira, drove to the Los Lunas residence of Patrick Chavez (Victim). The three
men planned to steal marijuana and other valuables from Victim’s house. According to
Cruz, the original plan was to “go over [to Victim’s house] beforehand and see if
anybody was home. And if nobody was at the residence, then we could break in and
take the items or any valuables.” When the three men arrived at Victim’s residence,
they noticed apparent signs that people were inside the house. Despite indications the
house was occupied, Defendant disregarded the original plan because “he didn’t want
to go out there for nothing.” Defendant’s new plan was that Cruz and Chavira were to
wait outside the house while Defendant entered the house and subdued any individuals
inside; once Defendant accomplished this, Cruz would enter the house and steal items.
Cruz protested, raising concerns about the house’s occupants, but Defendant
nevertheless proceeded.

{4} Defendant casually approached the front door of the house, knocked, and called
out Victim’s name. Victim and Victim’s brother were inside the house. Victim let
Defendant inside the house. Once inside, Defendant drew a handgun and demanded

1See State v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982; State v. Boyer, 1985-NMCA-029,
103 N.M. 655, 712 P.2d 1.
2Because the record does not support Defendant’s factual assertions and because the case can
otherwise be disposed of by established New Mexico law, we exercise our discretion under Rule 12-
405(B)(1)-(2) NMRA and issue this non-precedential decision affirming Defendant’s convictions.
that Victim hand over marijuana. Victim responded by reaching for the handgun, and a
struggle for the weapon ensued. Defendant shot Victim multiple times in the torso and
legs, killing him.

{5} Upon hearing the shooting, Cruz, who was outside the house, fled on foot down
the street. Eventually, Defendant and Chavira, who were driving, caught up to Cruz and
ordered him to get into their vehicle. Cruz and Chavira asked Defendant if he had shot
Victim, to which Defendant responded affirmatively, but stated he was unsure if Victim
was dead (which, in fact, he was).

B. Trial

{6} Defendant’s three-day trial began on December 5, 2017. The State called eleven
witnesses. Of those eleven witnesses, eight represented either law enforcement or
medical expertise. One witness was a friend of Defendant who testified that Defendant
had admitted to shooting Victim in the leg. Two of the witnesses, Cruz and Victim’s
brother, were present at the time of the shooting. While Victim’s brother was in the
house at the time of the shooting, he testified he was hiding at the time and could only
provide a rough description of the shooter. Cruz, however, identified Defendant as the
shooter and provided significant testimony incriminating Defendant’s role in the
shooting.

{7} In addition to testimonial evidence, the State presented evidence of Defendant’s
DNA on a fencepost outside of Victim’s house. While bullets recovered from the scene
were determined to be from the same firearm, the firearm itself was not found. Cruz’s
testimony, therefore, was critical in proving the State’s theory that Defendant had shot
Victim.

{8} The jury convicted Defendant of: (1) accessory to felony murder in the first
degree, contrary to NMSA 1978, Section 30-2-1(A)(2) (1994) and NMSA 1978, Section
30-1-13 (1972); (2) attempted robbery, contrary to NMSA 1978, Section 30-16-2 (1973)
and NMSA 1978, Section 30-28-1 (1963); and (3) conspiracy to commit armed robbery,
contrary to Section 30-16-2 and NMSA 1978, 30-28-2 (1979). The district court entered
judgment and sentenced Defendant to life imprisonment for the accessory to murder
conviction.

C. What the Record Establishes Regarding Jaramillo’s Representation of Cruz

{9} Initially, Public Defender Michael Rosenfield represented Defendant. On
December 2, 2015, however, Jaramillo moved to substitute as private counsel for
Defendant. That same motion noted Rosenfield’s objection to Jaramillo representing
Defendant. Specifically, Rosenfield opposed the motion because he believed
Jaramillo’s representation of Defendant would be a conflict with Jaramillo’s previous
representation of Cruz.

{10} The district court held a hearing on the matter on January 22, 2016. During the
hearing, Rosenfield stated his office’s investigator had learned of Jaramillo’s previous
representation of Cruz. The investigator had purportedly learned that “Cruz’s father told
[the investigator] that Mr. Cruz went to talk to Mr. Jaramillo about his involvement as a
State witness in the case against [Defendant].” Rosenfield voiced his concerns that
Jaramillo might have a conflict of interest between protecting Cruz’s interests and cross-
examining him at trial.

{11} Jaramillo responded by stating there was not a conflict because there was no
adverse representation to Defendant or Cruz, nor was there a violation of Rule 16-107
NMRA. Jaramillo noted his representation of Cruz was for a minor matter where Cruz
had allegedly stolen property from a local middle school. Jaramillo assured the district
court that Cruz’s case was over. Further, Jaramillo acknowledged that he had
interviewed Cruz regarding the shooting of Victim, but that he had told Cruz that he was
“interviewing him as [Defendant’s] lawyer, not as [Cruz’s] lawyer.” The State did not
take a position on the matter.

{12} The district court, having considered Rosenfield’s statements and Jaramillo’s
assessment, concluded that Jaramillo did not have a conflict. The district court did,
however, note its concerns about the appearance of impropriety. Nevertheless, the
district court relied on Jaramillo’s judgment that there was not a conflict, and reminded
Jaramillo of his “burden as an officer of the court to make sure [he did not] have a
conflict.” The district court therefore allowed Jaramillo to substitute as counsel.

II. DISCUSSION

A. The Record Does Not Support Defendant’s Claim for Ineffective Assistance
of Counsel; His Claim is Better Suited for a Habeas Corpus Petition

1. Standard of review

{13} Claims of ineffective assistance of counsel are reviewed de novo. See, e.g.,
State v. Mosley, 2014-NMCA-094, ¶ 18, 335 P.3d 244. A challenge to a district court’s
grant of substitution of counsel is reviewed for an abuse of discretion. See State v.
Dyke, 2020-NMCA-013, ¶ 12, 456 P.3d 1125.

2. Relevant law regarding ineffective assistance of counsel due to a conflict

{14} A criminal defendant charged with a felony has a Sixth Amendment right to have
the effective assistance of an attorney. Strickland v. Washington, 466 U.S. 668, 692
(1984), superseded on other grounds by Antiterrorism and Effective Death Penalty Act
of 1996, PL 104-132, 110 Stat. 1214 (1996); State v. Padilla, 2002-NMSC-011, ¶ 11,
132 N.M. 247, 46 P.3d 1247. Subsumed within the Sixth Amendment’s right to counsel
is the guarantee that such counsel is free from conflict. State v. Sosa, 1997-NMSC-
032, ¶ 20, 123 N.M. 564, 943 P.2d 1017 (“The right to effective assistance of counsel
free from conflicts of interest is guaranteed by the Sixth Amendment of the United
States Constitution.”), abrogated on other grounds by State v. Porter, 2020-NMSC-020,
476 P.3d 1201; State v. Martinez, 2001-NMCA-059, ¶ 24, 130 N.M. 744, 31 P.3d 1018
(noting the Sixth Amendment guarantees “the right to counsel’s undivided loyalty”). “It
is well established in New Mexico that trial counsel representing a defendant has a duty
to avoid a conflict of interest.” State v. Santillanes, 1990-NMCA-035, ¶ 6, 109 N.M. 781,
790 P.2d 1062.

{15} Generally, a prima facie case of ineffective assistance of counsel requires a
defendant to show that their attorney’s performance was deficient and that the deficient
performance prejudiced the defense. See, e.g., State v. Sloan, 2019-NMSC-019, ¶ 33,
453 P.3d 401. The analysis for conflict-based ineffective assistance of counsel claims,
however, differs from the more typical ineffective assistance of counsel claim. See Rael
v. Blair, 2007-NMSC-006, ¶ 10, 141 N.M. 232, 153 P.3d 657. A conflict-based claim
requires that “a defendant demonstrates that an actual conflict of interest undermined
counsel’s loyalty.” Martinez, 2001-NMCA-059, ¶ 24. Once an actual conflict is
established, “prejudice is presumed.” Id. (quoting Strickland, 466 U.S. at 692); see also
Santillanes, 1990-NMCA-035, ¶ 7 (“When ineffective assistance of counsel is based on
a conflict of interest, prejudice is presumed and need not be proved.”).

{16} Prejudice, however, is not automatically presumed when there is a potential
conflict. See Rael, 2007-NMSC-059, ¶ 11; see also Churchman v. Dorsey, 1996-
NMSC-033, ¶ 12, 122 N.M. 11, 919 P.2d 1076 (“[T]he mere possibility of conflict is
insufficient to support a claim of ineffective assistance of counsel.”). Instead, the
defendant must demonstrate that an actual conflict exists. This Court has stated that a
defendant

must show that while counsel represented [the defendant] there was an
ongoing professional relationship between [the witness at issue] and
defense counsel that requires the protection of attorney-client privilege.
Further, Defendant must show that counsel’s representation of [the
witness] involved a matter relevant to [the defendant’s] trial. If there is
significant relevance, a per se conflict of interest can be identified.

Rael, 2007-NMSC-059, ¶ 21.

{17} Relevant to the matter at hand, this Court has stated that an actual conflict of
interest occurs “when counsel represents two clients with divergent interests in the
same matter.” State v. Joanna V., 2004-NMSC-024, ¶ 6, 136 N.M. 40, 94 P.3d 783.
Moreover, an actual conflict can be found when a plausible defense was not pursued
because of the interests of another party. See Santillanes, 1990-NMCA-035, ¶ 7; cf.
Rule 16-107(A)(2) (stating a conflict exists if “there is a significant risk that the
representation of [a client] will be materially limited by the lawyer’s responsibilities to . . .
a former client”). For example, New Mexico courts have found an actual conflict exists
when counsel states on the record certain defenses were not pursued because of a
duty owed to a third party, Dyke, 2020-NMCA-013, ¶¶ 19-22; Santillanes, 1990-NMCA-
035, ¶¶ 1, 16, when an attorney previously represented a key prosecution witness in a
matter substantially related to the defendant’s case, Rael, 2007-NMSC-006, ¶ 25, or
when an attorney was himself a suspect in the crime for which the defendant was being
charged, Martinez, 2001-NMCA-059, ¶¶ 31-36. But the law is clear: an actual conflict is
not merely “the possibility of conflict.” State ex rel. Children, Youth & Families Dep’t v.
Tammy S., 1999-NMCA-009, ¶ 21, 126 N.M. 664, 974 P.2d 158; see also Rael, 2007-
NMSC-059, ¶ 11; Churchman, 1996-NMSC-033, ¶ 12.

{18} Thus, under established New Mexico law, a defendant receives ineffective
assistance of counsel when their lawyer has an “actual conflict which adversely affected
the defense lawyer’s performance. Absent an actual conflict, the defendant has no
claim.” State v. Case, 1984-NMSC-012, ¶ 9, 100 N.M. 714, 676 P.2d 241.

3. Analysis

{19} Defendant asserts two reasons for reversal based on ineffective assistance of
counsel: (1) Jaramillo’s representation of Defendant after representing Cruz created an
actual conflict of interest, and (2) the district court failed to make sufficient inquiry into
the potential conflict. We address each in turn.

a. The record does not establish an actual conflict

{20} Defendant’s conflict-based claim of ineffective assistance of counsel requires
Defendant to demonstrate that Jaramillo had an actual conflict of interest stemming
from his previous representation of Cruz. See, e.g., Rael, 2007-NMSC-006, ¶¶ 11-12;
Martinez, 2001-NMCA-059, ¶ 24. Defendant argues that, “The potential for conflict
between Defendant and Cruz existed from the time Cruz implicated [Defendant] in the
shooting that resulted in the charges only against [Defendant].” (Emphasis added.)
Defendant describes the conflict as Defendant’s “interest was in demonstrating his
innocence. Cruz’ interests lay in maintaining that [Defendant], not Cruz, was the
perpetrator[.]” Defendant’s summation of Jaramillo’s conflict presupposes two facts
unsupported by the record. First, it assumes that Jaramillo learned attorney-client
information from Cruz that was relevant to the instant matter. Second, it draws a further
inference from the first assumption to conclude whatever Jaramillo might have learned
created an actual conflict of interest.

{21} As to the assumption that Jaramillo learned information from Cruz, the thin
record indicates that Jaramillo did not gain relevant attorney-client information from
Cruz. For example, when the district court asked Jaramillo if he had learned attorney-
client information about the instant case through Cruz, Jaramillo responded, “I didn’t
learn anything from [Cruz] when I was his attorney.” Jaramillo stated he had
interviewed Cruz about the shooting, but Jaramillo assured the court that during the
interview he informed Cruz that he was Defendant’s attorney, not Cruz’s. Moreover,
Cruz himself acknowledged this interview and informed the court that he did not divulge
any information to Jaramillo that he had not already provided to police.

{22} The only identifiable aspect of the record that lends support to the notion
Jaramillo learned attorney-client information stems from statements made by
Rosenfield, Defendant’s previous publicly-appointed attorney. Rosenfield informed the
district court that he believed Jaramillo might have a conflict due to his previous
representation of Cruz. Rosenfield’s contention, however, was grounded in information
relayed to him by his investigator, who had in turn received it from Cruz’s father, who in
turn reported that he believed Cruz had spoken to Jaramillo about the shooting.
Jaramillo offered his clarification on this by informing the court he had interviewed Cruz
while serving as Defendant’s attorney, but the conversation was held after Cruz’s case
was over. Jaramillo further informed the court that his representation of Cruz was on a
previous and minor criminal matter, wholly unrelated to the shooting.

{23} There is no support in the record regarding the further inference that Jaramillo
gained information adverse to Defendant’s defense. Defendant contends that his
defense was undermined by Jaramillo’s cross-examination of Cruz because of
Jaramillo’s ongoing duty of loyalty to Cruz. The record does not indicate a curtailed
cross-examination. Jaramillo conducted a lengthy examination of Cruz that pursued
multiple manners of impeachment, highlighted motivations to lie, and examined
inconsistent statements. Furthermore, in closing argument, Jaramillo informed the jury
on multiple occasions that Cruz was the one who shot Victim.

{24} Lastly, Defendant argues that a conflict was created because Cruz’s “ability to
stay on [pre-prosecution diversion] for the charges on which Jaramillo had previously
represented him were at stake.” As the State points out, there is absolutely no factual
support for this argument in the record. See State v. Clifford, 1994-NMSC-048, ¶ 19,
117 N.M. 508, 873 P.2d 254 (informing counsel that we will not research and develop
arguments where they have failed to do so).

{25} The record does not establish that an actual conflict existed. There is no support
in the record that Jaramillo had to protect divergent interests for Cruz and Defendant,
see Joanna V., 2004-NMSC-024, ¶ 6, or that a plausible defense was avoided due to a
conflict, Santillanes, 1990-NMCA-035, ¶ 7. To the contrary, Jaramillo argued to the jury
that Cruz was the shooter. Moreover, the record fails to establish any significant
relevance between the unrelated matter in which Jaramillo represented Cruz and the
matter at bar. See Rael, 2007-NMSC-059, ¶ 21.

{26} Without a showing of actual conflict, prejudice is not presumed and Defendant
cannot establish a prima facie claim of ineffective assistance of counsel. See, e.g., id. ¶
24; Santillanes, 1990-NMCA-035, ¶ 7; Martinez, 2001-NMCA-059, ¶ 24. In light of the
lacking record, Defendant’s ineffective assistance of counsel claim fails and does not
warrant reversal. See Case, 1984-NMSC-012, ¶ 9 (“Absent an actual conflict, the
defendant has no claim.”). Defendant’s claim, however, may be pursued through a
habeas corpus proceeding. See State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657,
54 P.3d 61 (“If facts necessary to a full determination are not part of the record, an
ineffective assistance claim is more properly brought through a habeas corpus
petition[.]”)

b. There is no error regarding the district court’s inquiry into the conflict

{27} Defendant also argues that the proper inquiry was not conducted by the district
court. It is not particularly clear what Defendant means by this argument, which is
obfuscated by the lack of citation to any authority except for a passing reference to Rule
16-109 NMRA, a rule of professional conduct. A fair reading of the argument is that
Defendant contends the district court erred in allowing Jaramillo to substitute as counsel
for Defendant. Specifically, Defendant argues that the district court should have directly
provided Defendant with information regarding Jaramillo’s potential conflict. Because
Defendant is challenging the district court’s decision to allow Jaramillo to substitute as
counsel, we conclude that his argument is tantamount to challenging a district court’s
disqualification of counsel, which is reviewed for abuse of discretion. Therefore, we
review this argument for abuse of discretion. See Dyke, 2020-NMCA-013, ¶ 12.

{28} “An abuse of discretion occurs when the ruling is clearly against the logic and
effect of the facts and circumstances of the case. “We cannot say the trial court abused
its discretion by its ruling unless we can characterize it as clearly untenable or not
justified by reason.” State v. Samora, 2016-NMSC-031, ¶ 37, 387 P.3d 230 (internal
quotation marks and citation omitted).

{29} The district court inquired into the potential conflict at the January 22, 2016,
hearing. At that hearing, the district court heard from Jaramillo that he had represented
Cruz on a previous, unrelated criminal matter. Jaramillo assured the district court that
there was not a conflict. Given these assurances by Jaramillo, the fact that Cruz’s case
was unrelated and reportedly done, and the lack of opposition by the State, the district
court did not abuse its discretion in allowing Jaramillo to substitute as counsel. See
Dyke, 2020-NMCA-013, ¶ 20 (“Determining whether such a potential conflict exists is no
simple task. ‘The likelihood and dimensions of nascent conflicts of interest are
notoriously hard to predict, even for those thoroughly familiar with criminal trials.’”
(quoting Wheat v. United States, 486 U.S. 153, 162-63 (1988)).

{30} Defendant claims the district court should have supplied Defendant information
about Jaramillo’s potential conflict. Specifically, Defendant contends the court should
have given him information to make a knowing and voluntary waiver of his right to
conflict-free counsel. Defendant does not provide authority to support this proposition.
See Clifford, 1994-NMSC-048, ¶ 19. Nor does Defendant articulate why a district court
has an obligation to warn criminal defendants of the dangers of conflicted counsel when
the court does not believe there is a conflict. See id. Relatedly, a district court must
hold a hearing if a party files a motion to disqualify an adverse party’s counsel, which
would necessarily entail the trial court inquiring into waiver of conflicts. See Living
Cross Ambulance Serv., Inc. v. N.M. Pub. Regulation Comm’n, 2014-NMSC-036, ¶ 14,
338 P.3d 1258; Roy D. Mercer, LLC v. Reynolds, 2013-NMSC-002, ¶¶ 43-44, 292 P.3d
466. In this case, however, Defendant’s former publicly-appointed attorney notified the
district court of a potential conflict; the State raised no opposition to Jaramillo serving as
counsel. The district court, finding no basis for a conflict, did not inquire further into the
matter.

B. Sufficiency of the Evidence

{31} Pursuant to Franklin and Boyer, Defendant contends that because “the bulk of
the evidence against [Defendant] was obtained through the testimony of Cruz, who
admitted to lying to the investigating officers during their investigation of the crime, the
credible evidence at trial simply does not rise to the level of substantial enough to avoid
a reasonable doubt.” Defendant’s argument is premised on this Court determining Cruz
was an unreliable witness. The test for sufficiency of the evidence is well established.

We review whether substantial evidence of either a direct or circumstantial
nature exists to support a verdict of guilt beyond a reasonable doubt with
respect to every element essential to a conviction. Evidence is viewed in
the light most favorable to the guilty verdict, indulging all reasonable
inferences and resolving all conflicts in the evidence in favor of the verdict.
In particular, New Mexico appellate courts will not invade the jury’s
province as fact-finder by second guessing the jury’s decision concerning
the credibility of witnesses, reweighing the evidence, or substituting its
judgment for that of the jury. So long as a rational jury could have found
beyond a reasonable doubt the essential facts required for a conviction,
we will not upset a jury’s conclusions.

State v. Garcia, 2011-NMSC-003, ¶ 5, 149 N.M. 185, 246 P.3d 1057 (emphasis added)
(brackets omitted) (internal quotation marks and citations omitted).

{32} Defendant asks us to conclude that Cruz’s testimony is unreliable—a task we
have expressly stated we will not do. Id. (stating New Mexico appellate courts will not
second-guess the jury’s consideration of a witness’ credibility). Cruz did in fact provide
an inconsistent narrative of events when first interviewed by police. He initially stated
that he was not at the scene of the shooting and implicated another suspect. Cruz
acknowledged as much during direct examination, cross-examination, and redirect.
After the initial statements, however, Cruz maintained a largely consistent account of
the shooting, which he testified to at trial (and is recounted above). During cross-
examination, defense counsel played a video-recorded conversation of Cruz’s
inconsistent statements in open court. Jaramillo vigorously cross-examined Cruz about
the inconsistencies, using the video-recorded conversation to highlight the different
accounts initially given to law enforcement.

{33} The jury heard Cruz’s account of the shooting and was aware of Cruz’s initial
inconsistent statements. Indeed, Jaramillo placed significant emphasis on Cruz’s
inconsistent accounts during cross-examination, and, in closing, referred to Cruz as a
compulsive liar who had “no credibility in this matter at all.” Further, DNA evidence
placed Defendant at the scene of the shooting, and a friend of Defendant testified that
Defendant admitted to shooting Victim in the leg. Having heard and weighed this
evidence, the jury found Defendant guilty on the counts referenced above. Substantial
evidence supports the guilty verdicts reached by the jury. See id.; State v. Rojo, 1999-
NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829; State v. Sutphin, 1988-NMSC-031, ¶ 21,
107 N.M. 126, 753 P.2d 1314.

III. CONCLUSION

{34} We affirm Defendant’s convictions. The record in this matter cannot support
Defendant’s claim for ineffective assistance of counsel; this claim is better suited for a
habeas corpus proceeding so that a record may be more fully developed. Additionally,
sufficient evidence supports Defendant’s convictions.

{35} IT IS SO ORDERED.

C. SHANNON BACON, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

DAVID K. THOMSON, Justice