February 18, 2019- State of New Mexico v. Crystal Martinez, No. A-1-CA-37108

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 V . 	NO. A-1-CA-37108
5 CRYSTAL MARTINEZ,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
8 Sarah C. Backus, District Judge
9 	Hector H. Balderas, Attorney General
10 	Santa Fe , NM
11 	for Appellee
12 	Bennett J. Baur , Chief Public Defender
13 	Allison H. Jaramillo, Assistant Appellate Defender
14 	Santa Fe , NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 V ANZI, Judge.
18 	{I} 	On motion for rehearing, the opinion filed on February 11, 2019, is withdrawn,
19 	and the following opinion is substituted in its place.
20 	{2} 	Defendant appeals following the district court' s denial of her motion to
21 	suppress. On appeal, Defendant contends that the officer unlawfully seized her and
Court of Appeals of New Mexico
Filed 2/18/2019 9:54 AM
Mark Reynolds

1 unlawfully searched her bag. This Court issued a notice of proposed disposition,
2 proposing to affirm. Defendant filed a memorandum in opposition and motion to
3 amend the docketing statement, which we have duly considered. Unpersuaded, we
4 deny the motion to amend the docketing statement as non-viable and otherwise
5 affirm.
6 	{3} 	In this Court's calendar notice, we proposed to affirm the district court's
7 decision finding that the actions of the officer were reasonable and justified under the
8 totality of the circumstances and that the officer had "articulated facts that justified
9 swift action to prevent the potential risk to life." [RP 129] We proposed that the State
10 appeared to have demonstrated that exigent circumstances existed that justified the
11 	warrantless seizure of the occupants of the vehicle when the officer pointed his
12 	weapon at the driver. As Defendant did not raise any other objections to the stop and
13 	seizure in her docketing statement, we did not further examine the encounter.
14 	{4} 	In her memorandum in opposition, Defendant continues to argue that the initial
15 	seizure occurred when the officer drew his gun or, as she now argues in the
16 	alternative, when the officer first parked behind the car in which Defendant was
17 	riding. [MIO 18] She also argues that the district court's findings were "not grounded
18 	in any exigency." [MIO 18] To the contrary, as Defendant admits, the district court
19 	found that the officer articulated facts that justified "swift action to prevent the
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1 potential risk to life," and such finding is supported by the record and Defendant has
2 	not disputed the facts identified by the district court in support of this finding. See
3 Hennessy v. Duryea, 1998-NMCA-036, ,r 24, 124 N.M. 754, 955 P.2d 683 (" Our
4 	courts have repeatedly held that, in summary calendar cases, the burden is on the
5 party opposing the proposed disposition to clearly point out errors in fact or law.").
6 	[MIO 18] Based on the record before us, we proposed to conclude that exigent
7 circumstances justifying the seizure existed. [CN 5-6] Defendant' s argument in her
8 memorandum in opposition, conflating the exigent circumstances of the initial seizure
9 	with her new argument regarding consent to search Defendant's purse, as discussed
10 	further below , does not persuade us that exigent circumstances did not justify the
11 	initial seizure. [MIO 18-20] We are similarly unpersuaded by Defendant's new
12 	arguments that the officer needed particularized suspicion of Defendant to justify the
13 	seizure because the evidence of the officer's knowledge of the driver's involvement
14 	in a shooting, likely possession of weapons, and sudden tum toward the console did
15 	not demonstrate exigent circumstances that justified the seizure of all the passengers
16 in the vehicle. [MIO 22, CN 5-6] To the extent Defendant now argues that the district
17 	court's basis for its order was the driver's consent, we note that the order clearly
18 	states that the seizure was also justified based on the facts articulated by the officer
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1 regarding his swift actions to prevent potential risk to life. [MIO 18, Notice of Appeal
2 	4; RP 129]
3 	{5} 	Defendant also seeks to amend the docketing statement to add the argument
4 	that the district court erred in relying on the driver's consent in finding that the search
5 	of Defendant ' s purse was permissible. [MIO 1] However , this issue was not raised in
6 the motion to suppress below, and was thus not preserved. Defendant raises it in her
7 	motion to amend for the first time, alternatively arguing that her trial counsel's failure
8 to raise it in her motion to suppress amounted to ineffective assistance of counsel.
9 	[MIO 1, 24-29]
10 	{6} 	"Criminal defendants are entitled to 'reasonably effective' assistance of counsel
11 	under the Six th Amendment of the United States Constitution." State v. Crocco,
12 	2014-NMSC-016 , ~ 12, 327 P.3d 	1068 (internal quotation marks and citation
13 	omitted). "For a successful ineffective assistance of counsel claim, a defendant must
14 	first demonstrate error on the part of counsel, and then show that the error resulted
15 	in prejudice." Id. ~ 14 (internal quotation marks and citation omitted). Without an
16 adequate record, an appellate court cannot determine that trial counsel provided
17 	constitutionally 	ineffective 	assistance. 	See 	State 	v. 	Tafoya, 	2012-NMSC-030,
18 ~~ 58-59, 285 P.3d 604 ("An appellate court will not second-guess counsel's strategic
19 judgment unless the conduct does not conform with an objective standard of
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1 reasonableness." (internal quotation marks and citation omitted)). "If facts necessary
2 to a full determination are not part of the record, an ineffective assistance claim is
3 more properly brought through a habeas corpus petition, although an appellate court
4 may remand a case for an evidentiary hearing if the defendant makes a prima facie
5 case of ineffective assistance." Crocco, 2014-NMSC-016, ~ 14 (internal quotation
6 marks and citation omitted).
7 	{7} 	In this case, although different arguments to suppress the search ofDefendant' s
8 bag may have been made below, factual disputes such as Defendant's possible
9 consent to the search prevent us from having a complete record in order to fully
10 evaluate the claim. Accordingly, Defendant has not made a prima facie case of
11 	ineffective assistance of counsel. See Tafoya, 2012-NMSC-03 0, ~~ 58-59. We note,
12 	however, that our Supreme Court has expressed a preference that ineffective
13 	assistance of counsel claims be adjudicated in habeas corpus proceedings, rather than
14 on direct appeal. State v. Grogan, 2007-NMSC-039, ~ 9, 142 N.M. 107, 163 P.3d
15 	494. "This preference stems from a concern that the record before the [district] court
16 	may not adequately document the sort of evidence essential to a determination of trial
17 	counsel's effectiveness." State v. Schoonmaker, 2008-NMSC-010, ~ 31, 143 N.M.
18 	373, 176 P.3d 1105 (internal quotation marks and citation omitted), overruled on
19 other grounds by State v. Consaul, 2014-NMSC-030, ~ 38, 332 P.3d 850.
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1 {8} 	We thus turn to Defendant's motion to amend her docketing statement to add
2 the argument that the driver's consent was insufficient to provide consent to search
3 Defendant's purse. As indicated above, this argument was not preserved, and
4 Defendant does not explain how the issue rises to fundamental error. In cases
5 assigned to the summary calendar, this Court will grant a motion to amend the
6 docketing statement to include additional issues if the motion (1) is timely, (2) states
7 all facts material to a consideration of the new issues sought to be raised, (3) explains
8 how the issues were properly preserved or why they may be raised for the first time
9 on appeal, (4) demonstrates just cause by explaining why the issues were not
10 	originally raised in the docketing statement, and (5) complies in other respects with
11 	the appellate rules. See State v. Rael, 1983-NMCA-081, ,, 7-8, 10-11, 14-17, 100
12 N.M. 193,668 P.2d 309. This Court will deny motions to amend that raise issues that
13 	are not viable, even if they allege fundamental or jurisdictional error. See State v.
14 Moore, 1989-NMCA-073,, 42, 109 N.M. 119, 782 P.2d 91, superceded by rule on
15 	other grounds as recognized in State v. Salgado, 1991-NMCA-044, 112 N.M. 537,
16 	81 7 P .2d 73 0. As Defendant has not explained how the issue was preserved, why it
17 may be raised for the first time on appeal, or why it cannot be more appropriately
18 	addressed through habeas corpus proceedings, we deny the motion to amend as non-
19 viable. See id.; Rael, 1983-NMCA-081, ,, 7-8; see also State v. Cunningham, 2000-
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1 NMSC-009, ~ 21, 128 N.M. 711,998 P.2d 176 ("Parties alleging fundamental error
2 must demonstrate the existence of circumstances that shock the conscience or
3 implicate a fundamental unfairness within the system that would undermine judicial
4 integrity if left unchecked.").
5 	{9} 	Because of the foregoing, we conclude that Defendant has not satisfied her
6 burden to oppose the proposed summary disposition. See Hennessy, 1998-NMCA-
7 036, ~ 24 ("Our courts have repeatedly held that, in summary calendar cases, the
8 burden is on the party opposing the proposed disposition to clearly point out errors
9 	in fact or law."). Accordingly, we affirm.
10 	{IO} 	IT IS SO ORDERED.
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12
13 	WE CONCUR:
16 	~it12c17 JEN~ATTREP,Judge
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