A-1-CA-34972 | Omnilex

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Court of Appeals of New Mexico Filed 5/6/2019 11:01 AM
Mark Reynolds
1
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 4 v.
Plaintiff-Appellee,
No. A-1-CA-34972
ROMEO MARTINEZ-MELGAR,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY Mary L. Marlowe, District Judge
Hector H. Balderas, Attorney General
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM
Bennett J. Baur, Chief Public Defender
Kimberly M. Chavez Cook, Assistant Appellate Defender
17 for Appellant
18
MEMORANDUM OPINION
19 MEDINA, Judge.
{1} Defendant was charged with trafficking in cocaine, by possession with intent to distribute, pursuant to NMSA 1978, § 30-31-20(A)(3) (2006), and possession of drug paraphernalia, pursuant to NMSA 1978, § 30-31-25.1 (2001). Defendant appeals his convictions on double jeopardy grounds. The State concedes and we
20 21 22 23
5 6 7 8 9 10 Santa Fe, NM 11 12 13 for Appellee 14 15 16 Santa Fe, NM

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agree that Defendant’s conviction for possession of drug paraphernalia violates
double jeopardy. We reverse that conviction. Defendant also raises several claims of
ineffective assistance of counsel. Defendant has failed to demonstrate a prima facie
showing of ineffective assistance of counsel. Therefore, we affirm Defendant’s
conviction for possession of cocaine with intent to distribute.

BACKGROUND

23 We begin with the State’s case and then turn to Defendant’s testimony. Three
officers testified on behalf of the State and their testimony is as follows. Santa Fe
Police Officer Joseph Nieto, received information from a confidential informant that
4 Spanish-speaking person by the name of Romeo Martinez-Melgar, was selling
drugs from his home located at a specific address in Santa Fe, New eT The
confidential informant told Officer Nieto to look for the drugs in a room with a wood
burning stove. Officer Nieto verified through a motor vehicle records check that
Defendant lived at the address provided by the confidential informant. A background
check further revealed Defendant was not a United States sitio

{3} | Officer Nieto shared the information he gathered with his supervisor, Sergeant
Matt Martinez. Sergeant. Martinez suggested they conduct a “knock-and-talk.” Prior
to conducting the knock-and-talk, Sergeant ‘virtues contacted Agent Matthew
Salcido with the Federal Immigration and Customs Enforcement ee (ICE) and

notified him that they were investigating a non-U.S. citizen, for drug trafficking.

4; About a week after speaking with the confidential informant, Officer Nieto,
Sergeant Martinez, Agent Salcido, and Officer Jimenez, drove and parked down the
street from Defendant’s residence. Sergeant Martinez and Agent Salcido, who was
a fluent Spanish-speaker, Raodked on Defendant’s front door while the other officers
wire positioned to their right. Agent Salcido and Sergeant Martinez wore plain
clothes and were not displaying their weapons. The other officers were wearing their
uniforms.

{5} Defendant ewERA the door. Agent Salcido identified himself in Spanish and
showed Defendant his badge and credentials. He asked Defendant in Spanish for
permission to enter and search the house for narcotics and firearms. According to

the officers, Defendant invited them inside and gave them verbal permission to

search his home for narcotics. Agent Salcido and Officer Nieto testified that}

Defendant was calm, not nervous, and did not appear under dares,

6 After entering the house, Officers Nieto and Tinea stayed with Defendant
in the entryway while Agent Salcido and Sergeant Martinez conducted a protective
sweep of the house. During the protective sweep, the officers located Defendant’s
stepdaughter and wife whom they asked to join Defendant.

(7 Agent Salcido and Sergeant Martinez saw a detached apartment located in the
backyard. For officer safety reasons, they knocked on the apartment door to discover

who else might be on the property. The occupant of the apartment, Wilbur, consented

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to a search of his apartment.. Wilbur was not a United States citizen, but an
immigration “records check” revealed he had no outstanding warrants. Agent
Salcido and Sergeant Martinez did not detain or question Wilbur because the |
confidential informant specifically identified Defendant as the person who was
selling drugs from inside his home.

33 After cotnpledng a quick protective sweep of the backyard apartment, Agent
Salcido and Sergeant Martinez returned to Defendant’s residence. Agent Salcido,
Sergeant Martinez, and Officer Nieto entered a room that looked like a single car
garage that had been converted into a living room. Officer Jimenez remained with
Defendant. The room had a wood-burning stove, a desk with a computer and a stack
of tires. The officers concentrated heir search in that room because the confidential
informant told Officer Nieto the narcotics would be located in the general area of the
wood burning stove.

93 Agent Salcido located a smail tool box sitting on a ledge across from the wood
burning stove. Agent Salcido opened the tool box and discovered a white plastic jar
containing: (1) three medium-sized clear plastic bindles of a white powdery
substance that appeared to be cocaine, (2) a mixing cup, (3) a bowl, (4)-numerous
empty plastic baggies al a digital scale.

410} Officer Jimenez brought Defendant into the room asked Defendant if

everything in the room was his. Defendant said, “Yes.” Agent Salcido asked

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Defendant if the contents of the tool box were his and he stated, “Yes.” Agent
Salcido asked Defendant in Spatiish if the computer was his and if the stack of tires
were his. Each time Defendant answered, “Yes.” |

113 Officer Nieto placed Defendant under arrest for possession of cocaine. Officer
Jimenez, who was fluent in Spanish, advised Defendant of his rights of which
Defendant stated he understood. Officer Nieto conducted a search of Tetisndlant
incident to his arrest and while doing so, pulled a wallet out of Defendant’s pocket.
When he opened the wallet to check for Defendant’s identification, fourteen small
clear plastic bindles of a white powdery substance fell out of Defendant’s wallet.
The plastic bindles looked like the corners of plastic baggies. According to Officer
Nieto, Agent Salcido asked Defendant about the bindles and Defendant responded:
“They were for his personal use.”

{123 Agent Salcido continued to search the room with the wood burning stove and
the tool box. Agent Salcido found a bottle of Inositol Powder inside one of the tires.
Agent Salcido and Sergeant Martinez both testified that based on their experience
and training, Inositol Powder is a common cutting substance traffickers use to
increase the volume of their product.

{13}, Sergeant Martinez testified that it looked like the cup and bow! found inside
the tool box had residue and based on his training and experience, it looked like the

cup was used for measuring. He explained that a trafficker would mix cocaine and

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the Inositol Powder in the bowl and use the cup to weigh the mixture on the scale
and then place the mixture into the corners of plastic baggies. He testified that
traffickers would then cut or tie the corners of the baggies containing the mixture
and that the trafficker would sell the narcotic. He testified that based on his training
and experience, a personal use amount of cocaine would be between a quarter gram
to two grams, and that the items found in the tool box indicated to him that there was
a narcotics trafficker.

(14; The officers also found a trash can in the room that contained the tops of
several zip lock bags. Agent Salcido found this indicative of drug trafficking,
explaining that traffickers pour small amounts of cocaine into the comers of zip lock
bags and discard the top portion of the baggie.

{15} Finally, the officers found a ledger on top of the computer. Sergeant Martinez
looked at the ledger and testified that based on his training and experience it looked |
like narcotics ledgers they have found while investigating mid to high level narcotics
dealers. Sergeant Martinez explained that those types of ledgers document who owes.
the trafficker money and how much product they have given to an individual.

{16} The evidence of drug trafficking found in Defendant’s residence and on his
person was sent to the Department of Public Safety Forensic Lab in Santa Fe, New
Mexico, for analysis. The State presented testimony from forensic cioniis Adam

Wolff, who worked at the Department of Public Safety. Wolff testified as an expert

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in seaiveing controlled substances. Wolf analyzed the evidence in this case for the
presence of controlled substances and prepared a report containing the results of his
analysis.

{17} Wolff randomly selected items to test. The results of his analysis were as
follows: (1) the white powder in the bowl was cocaine; (2) the powder in the large
bag found in the tool box was not cocaine; (3) a bindle weighing 49.2611 grams
identified as Exhibit 4B-1, could not be identified as cocaine; and (4) two smaller
bindles contained cocaine.

418} After the close of the State’s case, Defendant testified on his own behalf.
Defendant testified that when he answered the door all the officers entered his home,
told him they were from ICE, and were looking for someone named Wilbur.
Defendant denied having given the officers consent to enter.

{19} Defendant denied having ever engaged in trafficking in cocaine or using
illegal drugs. Defendant denied any knowledge of the drugs, including the fourteen
bindles the officers testified fell out of his wallet, the paraphernalia, or the ledger
that was found in his home. Defendant testified he was relaxed until the officers told
him he had to accept the charges and made gestures of calling Children, Youth and
Families Department (CYFD) to take the children away.

{20} Defendant opined that the drugs and paraphernalia belonged to Wilbur,

because Wilbur had access to the room where the drugs were found and disappeared

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the day after Defendant’s arrest. The jury convicted Defendant of both charges. This
appeal followed.

DISCUSSION

I. Defendant’s Conviction for Possession of Drug Paraphernalia Violates
His Right to Be Free From Double Jeopardy

21} Defendant argues his convictions for possession of cocaine with intent to
distribute and — of drug paraphernalia violate double jeopardy because the
jury instructions failed to distinguish the fourteen plastic binilles that fell out of his
wallet from the plastic baggies and other forms of drug paraphernalia that were found
inside his residence. The State concedes this issue on appeal. While we are not bound |.
to accept the State’s concession, see State v. Tapia, 2015-NMCA-048, § 31, 347
P.3d 738 (stating appellate courts are not bound by the state’s concessions), for the | .
reasons that follow, we agree.

922} We review double jeopaly claims de novo. See State v. Gutierrez, 2011-
NMSC-024, 4 49, 150 N.M. 232, 258 P.3d 1024. “The New Mexico and United
States éSousiiiuions each contain a prohibition that no person be twice put in
jeopardy for the same offense.” State v. Armendariz, 2006-NMSC-036, { 19, 140
NM. 182, 141 P.3d 526 (internal quotation marks and citations omitted), overruled
on other grounds by State v. Swick, 2012-NMSC-018, 279 P.3d 747. We engage in
double jeopardy analysis in three circumstances: (1) to “protect|] against a second

prosecution for the same offense after acquittal,” (2) to “protect[] against a second

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prosecution for the same offense after conviction,” and (3) to “protect[] against
multiple punishments for the same offense.” Swafford v. State, 1991-NMSC-043,
4 6, 112 N.M. 3, 810 P.2d 1223. |

23} “Multiple punishment problems can arise from bot dviiBledescdition
claims, in which a single act results in multiple charges under different criminal
statutes, and unit-of-prosecution claims, in which an individual is convicted of
multiple violations of the same criminal statute.” State v. Bernal, 2006-NMSC-050,
4 7, 140 N.M. 644, 146 P.3d 289 (internal quotation marks and citation omitted).
{24} Defendant raises a double-description claim because he is claiming the jury
may have relied on his single act of possessing fourteen plastic bindles of cocaine,
to convict him of two separate criminal statutes. We apply a two-step inquiry to
double-description claims. See Swafford, 1991-NMSC-043, § 25. First, we analyze
the factual question, “whether the conduct underlying the offenses is unitary, i.e.,
whether the same conduct violates both statutes[,]” and if so, we consider “whether
the [L]egislature intended to create separately punishable offenses.” Jd. “If it
reasonably can be said that the conduct is unitary, then [we] must move to the second
part of the inquiry. Otherwise, if the conduct is separate and distinct, [the] inquiry is

at an end.” Id. 28.

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A. Unitary Conduct

725} The jury was instructed that in order to convict Defendant of trafficking in a/
controlled substance, the state had to prove in relevant part that “[D]efendant had
cocaine in his possession; [D]efendant knew it was cocaine, or believed it to be
[cocaine; and DJefendant intended to transfer it to another.” With regard to the crime }
of possession of drug paraphernalia, the jury was instructed in relevant part that it
had to find that “[D]efendant had in his possession plastic baggies, a digital scale, -
bowls, and/or Inositol Powder.” During closing argument the aRBROR invited the
jury to convict Defendant of possession of drug paraphernalia, based on the fourteen |
“bags” of cocaine that fell out of Defendant’s wallet. These were the same fourteen
bags of cocaine the prosecutor relied on to support Defendant’s conviction for
trafficking. |

26; Although the jury instruction provided alternative bases to support
Defendant’s conviction for possession of drug paraphernalia, the general verdict
form did not identify which alternatives the jury based its conviction on. Therefore,
we presume that each of Defendant’s convictions was based on the unitary conduct
of possessing fourteen bindles of cocaine and move to the second factor in the
Swafford analysis. See State v. Foster, 1999-NMSC-007, § 28, 126 N.M. 646, 974
P.2d 140 (concluding that the Court “must presume that a conviction under a general

verdict requires reversal if the jury is instructed on an alternative basis for the}

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conviction that would result in double jeopardy, and the record does not disclose
whether the jury relied on this legally inadequate alternative”), abrogated on other
grounds by Kersey v. Hatch, 2010-NMSC-020, ¢ 17, 148 N.M. 381, 237 P.3d 683.
B. Language of the Statutes and Legislative Intent

27} We mea consider whether the Legislature intended to create separately
punishable offenses for the same conduct. See Swafford, 1991-NMSC-043, ¢ 28 (“If
it reasonably can be said that the conduct is unitary, then one must move to the
second part of the inquiry.”). In construing legislative intent, we first look to the
plain language of the statutes at issue to determine whether they “expressly” provide
for “multiple punishments for unitary conduct.” Id. q 30. The statutes at issue here
do not expressly state that conviction for one offense shall not preclude conviction
for the other. Compare NMSA 1978, § 30-31-25.1(A) (2001) (prohibiting drug
paraphernalia possession), with NMSA 1978, § 30-31-20(A)(3) (2006) (prohibiting
possession of cocaine with intent to traffic). Therefore we apply the test set out in
Blockburger v. United States, 284 U.S. 299 (1932). See Swafford, 1991-NMSC-043, |
q 30.

28} The Blockburger test seeks to determine whether there are “two offenses or
only one” in prosecutions “where the same act ... . constitutes a violation of two
distinct statutory provisions.” State v. Gutierrez, 2011-NMSC-024, ¥ 56, 150 N.M.

232, 258 P.3d 1024 (internal quotation marks and citation omitted). In making this

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determination, we consider “whether each [statute] requires proof of a fact which
the other does not.” Jd. (internal quotation marks and citation omitted). If all of the
elements of one statute are contained within the other statute, then “one statute is
subsumed within the other,” and our inquiry ends with the conclusion that the
Legislature did not intend to punish the same conduct under two different statutes.
Id. (internal quotation marks and citation omitted). But, if each statute contains an
element of proof that is not found in the other, “we presume that the Legislature
intended to punish the offenses separately.” Armendariz, 2006-NMSC-036, § 22.

293 In order to convict Defendant of possession of drug paraphernalia, contrary to
Section 30-31-25.1, the State was required to prove in relevant part that Defendant
had in his possession drug paraphernalia with intent to “compound, convert, prepare,
pack, ... store, or contain cocaine.” The definition of “drug paraphernalia” includes
in relevant part, all products and materials of any kind that are intended for use in
packaging, storing, containing, or concealing a controlled substance. NMSA 1978,
§ 30-31-2(V) (2009, amended 2017). Trafficking in a controlled substance required
the State to prove in relevant part, that Defendant: (1) had a controlled substance in
his possession, in this case, cocaine; (2) he knew or believed it to be a controlled
substance; and (3) he intended to transfer the controlled substance to another. | |

Section 30-31-20(A)(3).

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{30} | Each of these two statutes contain elements of proof not contained by the
other: the trafficking statute requires proof of possession of a drug or baliet that one
is possessing a drug, along with intent to transfer the drug, while the possession of
drug paraphernalia statute, under the facts of this case, required proof that Defendant
possessed a product or material intended to store, package, contain, or conceal a
drug, regardless of whether he possessed the drug or had the intent to transfer the
drug. Therefore, we could presume that the Legislature intended to punish these two
offenses separately. See Armendariz, 2006-NMSC-036, § 22 (recognizing under the
Blockburger fest: if each statute requires an element of proof not required by the
other, “we presume that the Legislature intended to punish the offense separately”).
313. But under the facts of this case, and our opinion in State % Almeida, 2008-
NMCA-068, f 11, 144 N.M. 235, 185 P.3d 1085, we recognize that the presumption
that the Legislature intended separate punishments is not conclusive and it may be.
overcome by “other indicia of legislative intent, including the language, history, and
subject of the statutes, the social evils sought to be addressed by each statute, and
the quantum of punishment prescribed by each statute.” Jd. (internal quotation marks
and citation omitted).

32} In Almeida we were confronted with a set of facts similar to those at play here,
i.c., a defendant was convicted of both possession of a controlled substance and

possession of drug paraphernalia for possessing drugs in a plastic baggie. Id. | 1. We

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acknowledged that the prosecutions for drug possession and possession of a
controlled substance did not constitute double jeopardy under Blockburger because
they each required an element of proof not required by the other. Id. § 10.

{33} However, we nonetheless concluded that the convictions violated the
defendant’s double jeopardy rights because we did not believe that our Legislature
intended pyramid penalties for possessing drugs and drug paraphernalia when the
drug paraphernalia in question consisted only of a common, everyday item and was
identifiable as paraphernalia only because it was a container for a personal supply of
a controlled substance. Jd. § 18. We concluded that the possession of a plastic baggie
to hold drugs merged with the offense of pcséesding drugs and that the Legislature
did not intend to punish them as distinct crimes. Jd. 421. We were careful, however,
to distinguish this scenario from one in which a baggie of drugs was found next to a
pipe. Jd. J 18

343 The crime of possession of a controlled substance is a lesser included offense
of the ane of possession of a controlled substances with intent to distribute. State v.
Quick, 2009-NMSC-015, { 13, 146 N.M. 80, 206 P.3d 985. The difference between |
the two crimes is that the crime of possession, Section 30-31-23, does not include
the — element present in the crime of possession with intent to distribute.
Possessing the intent to distribute, however, ana not alter the requirement of a

container of some sort to hold the cocaine—here, corners of plastic baggies—or

change the certainty that corners of plastic baggies would not otherwise fall within
the list of items identified as drug paraphernalia in Section 30-31-25.1. We discern
no reason why our double jeopardy analysis and holding in Almeida, would not also
apply to convictions for the crime of possession of cocaine with intent to traffic and
possession of drug paraphernalia where, as here, the paraphernalia consisted of a
common every day household item used as a container to store the controlled
substance. Accordingly, we reverse Defendant’s conviction for possession of drug
paraphernalia and remand to the district court for resentencing.

Il. Defendant Failed to Make a Prima Facie Case of Ineffective Assistance
of Counsel .

35} Defendant asserts his counsel was ineffective because he failed to: (1) move
to suppress the evidence based on a lack of voluntary consent; (2) call a Spanish
language expert to assess Agent Salcido’s ability to speak Spanish; (3) move for
disclosure of the identity of the confidential informant and call the informant as a
witness; (4) present a letter written by an immigration attorney and testimony from
the immigration attorney; (5) object to improper expert testimony; (6) request an
instruction on constructive possession; (7) request an instruction requiring the jury
to find that Defendant’s admission to owning the tool box was voluntarily made; and
(8) request a lesser included offense featraction for simple possession. |

36; “The Sixth Amendment to the United States Constitution, applicable to the

states through the Fourteenth Amendment, guarantees . . . the right . . . to the
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effective satienes of counsel.” Patterson v. TeManter. 2001-NMSC-013, § 16, 130
N.M. 179, 21 P.3d 1032 (internal quotation marks and citation omitted). “When an
ineffective assistance claim is first raised on direct appeal, we evaluate the facts that
are part of the record.” 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, although an appellate court may remand a case for an evidentiary hearing
if the defendant makes a prima facie case of ineffective assistance.” Jd.

37; “A defendant makes a prima facie case of ineffective assistance despite full
and adequate factual support in the record by showing that defense counsel's
performance fell below the standard of a reasonably competent attorney and, due to
the deficient performance, the defense was prejudiced.” State v. Dylan J., 2009-
NMCA-027, { 39, 145 N.M. 719, 204 P.3d 44 (internal quotation marks and citation
omitted). |

{38} i to the first prong, “[dlefense counsel's performance is deficient if it falls
below an objective standard of reasonableness[,]|” asually judged as an action
contrary to “that of a reasonably competent attorney.” Id. § 37. However, “judicial
review of the effectiveness of counsel’s performance must be highly deferential, and
courts should recognize that counsel is strongly presumed to have rendered adecate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Lytle v. Jordan, 2001-NMSC-016, 9 50, 130 N.M. 198, 22
P.3d 666 (internal quotation marks and citation omitted). “While there may be some
question as to counsel’s tactics and strategy in representing his client, counsel's
approach to the defense of his client, even though questionable, does not necessarily
amount to ineffective assistance.” State v. Martinez, 2007-NMCA-160, § 26, 143
N.M. 96, 173 P.3d i 8. Therefore, a defendant “must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.” State v. Hunter, 2006-NMSC-043, q 13, 140 N .M. 406, 143 P.3d 168
(internal quotation marks and citation omitted). “If there is a plausible, rational
strategy or tactic to explain counsel’s conduct, a prima facie case for ineffective
assistance is not made.” Dylan J., 2009-NMCA-027, 439.

393 Astothe second prong, “[a] defense is prejudiced if, as a result of the deficient
performance, there was a reasonable probability that . . . the result of the trial would
have been different.” Id. § 38 (omission in original) (internal quotation marks and
citation omitted). “A reasonable probability is one that is sufficient to undermine
confidence in the outcome.” Jd. (internal quotation marks and citation omitted).
Failure to establish either prong of the test defeats a claim of ineffective assistance

of counsel. State v. Grogan, 2007-NMSC-039, ¢ 24, 142 N.M. 107, 163 P.3d 494.

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1. _—‘ Failing to File a Motion to Suppress

{40} Defendant contends his counsel rendered ineffective assistance of counsel
because he failed to challenge the validity of Defendant’s consent to search. The
officers testified that after obtaining consent to enter, they discovered a room with
various forms of drug paraphernalia and cocaine, and that a subsequent search of
Defendant incident to arrest led to the discovery of fourteen bindles of cocaine in his
wallet. Defendant argues his counsel should have moved to suppress the evidence
based on the unlawful entry into his residence.

{4143 “Where ... the ineffective assistance of counsel claim is premised on
counsel’s failure to move to suppress evidence, [the dJefendant must establish that
the facts support the motion to suppress and that a reasonably competent attorney
could not have decided that such a motion was unwarranted.” State v. Mosely, 2014-
NMCA-094, § 20, 335 P.3d 244 (internal quotation marks and citation omitted).
{42} Defendant argues that his counsel was aware of factual circumstances
surrounding the consent that would have supported a motion to suppress and that no
reasonsiily competent attorney would have decided that such a motion was not
warranted. In particular Defendant contends that his “consent” could have been
challenged on two grounds: first, he claimed that he did not give consent to the
officers to enter and search his residence; and second, he contends that he was a

Spanish-speaker and “[i]f [Agent Salcido’s] Spanish was only mediocre,” Agent

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Salcido’s request to consent to enter and search his residence for contraband while
accompanied by three other officers “could have come across as mandatory.”

{43} Each of Defendant's arguments implicate an exception to the warrant
requirement, consent. See State v. Flores, 2008-NMCA-074, § 12, 144 N.M. 217,
185 P.3d 1067 (recognizing that a search based upon a valid consent is an exception
6 the requirement for obtaining a search warrant). The voluntariness of consent is a
factual question in which the trial court must weigh the evidence and decide if it is
sufficient to clearly and convincingly establish that the consent was voluntary. State
y. Anderson, 1988-NMCA-033, $7, 107 N.M. 165, 754 P.2d 542.

{444 The voluntariness of consent involves a three-tiered analysis: “(1) there must
be clear and positive testimony that the consent was specific and unequivocal],] (2)
the consent must be given without duress or coercion[,] and (3) the first two factors
are to be viewed in light of the presumption that disfavors the waiver of
constitutional rights.” State v. Davis, 2013-NMSC-028, q 14, 304 P.3d 10 (internal
quotation marks and citation omitted). “Ultimately, the essential inquiry is whether
[the] defendant’s will ha[d] been overborne. /d. (alteration, internal quotation marks,
and citation omitted).

{45} We examine the law and the facts to determine if a reasonably competent
attorney could have decided that a motion to suppress was unwarranted. Prior to trial

the prosecutor filed a motion in limine seeking to preclude the defense from

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introducing evidence challenging the validity of Defendant’s consent to search
asserting that the motion would be untimely under Rule 5-212(C) NMRA (providing
that “motion[s] to suppress shall be filed no less than sixty .. . days prior to trial,
unless upon good cause is shown”). |

{46} The prosecutor asserted that defense counsel explored the validity of
Defendant’s consent to search during pretrial interviews with the officers but had
not filed a motion to suppress. During a hearing on the motion, the district court
meutned if the defense intended to argue during opening statement that Defendant
did not consent to the search of the home. Defense counsel responded that he was
not going to argue that the search was illegal. He also stated it was not key to the |
defense and did not intend to argue that the officers “manipulated them into letting
them into their home” but would mention it because it was nit OF their story.
Defense counsel’s responses suggest that he believed Defendant consented to the
entry but that there may have been manipulation or that the consent was possibly a
result of a language barrier.

447} If Defendant’s trial counsel believed prior to Defendant’s testimony that
Defendant provided consent, there would have been no reason to file a motion to
suppress based on a complete lack of consent. Cf State v. Stenz, 1990-NMCA-005,
q 7, 109 N.M. 536, 787 P.2d 455 (“A trial counsel is not incompetent for failing to

make a motion when the record does not support the motion.”). However, we do not

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reach this conclusion, because to do so we would have to saseiline that prior to trial,
Defendant told his counsel that he consented to the entry and search of his residence,
which is inapposite to his later trial testimony. See State v. Astorga, 2015-NMSC-
007, hI 17, 20, 343 P.3d 1245 (noting that the record is “frequently insufficient to
establish whether an action taken by defense counsel was reasonable and refusing to
—, as to the interpretation of defense counsel’s ambiguous ee
regarding his failure to litigate a 10-8 call (internal quotation marks and citation
omitted)).

{48} During trial Agent Salcido testified that he and Sergeant Martinez —e on
Defendant’s front door while wearing plain clothes and not displaying their
weapons. Agent Salcido testified that he identified himself iH Spanish, showed
Defendant his badge and credentials, and asked Defendant for permission to enter
and search his house for narcotics ara firearms. According to all three officers,
Defendant invited them inside and gave them verbal permission to search his
residence for narcotics. Agent Salcido testified that Defendant was calm, not
nervous, and did not appear under duress. Defendant testified that when he answered
the door the officers told him they were from ICE, they were looking for someone
named Wilbur and all of a sudden they entered his — without consent.

49} With respect to counsel’s failure to file a motion to suppress based on the

possibility that the request for consent to enter and search the residence for

contraband “could have come across as mandatory” the record is insufficient to
demonstrate a prima facie case of ineffective assistance of counsel. Defendant never
testified that he provided the officers with consent to enter and search his residence
much less that, based on Agent Salcido’s Spanish speaking ability, he believed he
had no option but to provide consent. Nor did Defendant claim that the presence of
the four iia somehow led him to believe he had no option but to consent to the
entry and search of his residence. Instead Defendant testified that when he answered
the door the officers told him they were from ICE, they — looking for sainenne
named Wilbur, and that officers entered his home without consent. Because
Defendant does not direct us to the facts supporting his argument that his consent
was coerced he did not meet his burden of showing that his attorney’s performance
fell below that of a reasonably competent attorney. See Stenz, 1990-NMCA-005, q 7.
2. Spanish Language Expert |

50} Defendant argues he was denied effective assistance of counsel because his
trial attorney failed to retain, disclose, and present a Spanish language expert who |
might have been able to evaluate Agent Salcido’s Spanish language skills and render
an opinion that Agent Salcido’s Spanish language skills were deficient. Our Supreme
Court has “expressly rejected the contention - that the failure to introduce the
testimony of an expert witness constitutes ineffective assistance of counsel per se.”

Lytle, 200 1-NMSC-0 16, | 44. We have generally required a defendant to show that

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a defense expert was actually available to testify in support of the defense’s theory
at trial. See State v. Aragon, 2009-NMCA-102, § 20, 147 NM. 26, 216 P.3d 276
(“[W]e-have. required a defendant to show that an expert would have ieei—aiat
could have been—available to testify at trial [for a prima facie case of
ineffectiveness].”). Here, Defendant contends the sncisheribe of a language barrier
between he and Agent Salcido went directly to the voluntariness and legitimacy of
his alleged consent to search and admission to owning the tool box and as such the
error was prejudicial. Defendant’s conjecture regarding what a defense expert might
have testified to and the resulting prejudice is purely speculative. There is nothing
in the record to indicate that a defense expert was available to assess Agent Salcido’s
Spanish language skills or that an expert would have opined that Agent Salcido’s
Spanish language skills were deficient. See State v. Crain, 1 997-NMCA-101, 4 33,
124 N.M. 84, 946 P.2d 1095 (stating that the defendant had not made a prima facie
case of ineffective assistance of counsel because the record failed to establish that a
defense expert was available to testify in support of the defendant’s theory of the
case). Therefore, Defendant has failed to demonstrate a prima facie case of
ineffective assistance of counsel resulting from his trial counsel’s failure to retain,

disclose, and present a Spanish language expert.

3. Confidential Informant

51} Defendant argues his counsel was ineffective because he failed to seek
disclosure and present testimony of the confidential informant. Defendant’s implicit
argument is that the confidential informant would have provided a description of the
drug trafficker that did not match Defendant’s physical appearance. Again,
Defendant’s claim of prejudice is based entirely on speculation that the confidential
informant would have provided a description of the drug febticker that did not match
Defendant. See State v. Dartez, 1998-NMCA-009, 4 27 124 N.M. 455, 952 P.2d 450
(holding that counsel’s failure to interview or subpoena the confidential informant
was not ineffective assistance in absence of any indication that the confidential
informant’s testimony would have benefitted the defendant). Having failed to
display prejudice, Defendant has failed to demonstrate a prima facie case of
ineffective assistance of counsel resulting from trial counsel’s failure to seek
disclosure and oresent testimony of the confidential informant.

4. Immigration Attorney and Letter

{523 Defendant additionally argues his counsel was ineffective for failing to
present testimony from an immigration attorney and for failing to introduce a letter
the immigration attorney wrote in 2009, accusing Agent Salcido of using coercion
during an encounter with a client who was not Defendant. According to Defendant,

“i]t appears the other individual was also a non-citizen Spanish-speaking suspect in

a criminal case, potentially threatened with immigration consequences” similar to |
what Defendant claims his encounter with the sfiivas in this case was like. The
letter is not included in the record, thus effectively preventing us from any review of
its actual contents. This Court will not speculate as to its true contents, theories of
admissibility, and resulting prejudice to Defendant.

{53} The immigration attorney was identified on Defendant’s witness list. The
decision whether to call a witness is matter of trial tactics and strategy. See Lytle,
2001-NMSC-016, § 44. The record is devoid of any conversations defense counsel
may have had with the immigration attorney or Defendant, leading to his decision
not to present the testimony of the immigration attorney. This Court will not attempt
to second-guess tactics and strategy of counsel on appeal. We, therefore, conclude
Defendant has failed to establish a prima facie case of ineffective assistance of
counsel resulting from counsel’s failure to admit the letter or present testimony from
the immigration attorney.

5. Opinion Testimony

{543 Defendant additionally contends his trial counsel was ineffective because he
permitted Sergeant Martinez to provide improper expert opinion testimony. Sergeant
Martinez testified that based on his training and experience: (1) the items found in
the tool box could be used to traffic and were indicative of a narcotics trafficker, and |

(2) the ledger looked like a narcotics ledger. “A failure to object does not establish

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ineffective assistance of counsel.” State v. Rodriguez, 1988-NMCA-069, q 17, 107
N.M. 611, 762 P.2d 898. “Decisions regarding objections are matters of trial]
tactics[.]” State vi Hester, 1999-NMSC-020, § 15, 127 NM. 218, 979 P.2d 729.

{55} At the time of trial, Sergeant Martinez was going on seventeen years in law
enforcement during which he received years of training in narcotics investigation,
and was assigned to the narcotics unit and the narcotics task force. He was also
familiar with the packaging and sale of cocaine, and came into contact with narcotics

almost on a daily basis. Given Sergeant Martinez’ extensive background in law

‘enforcement and training and experience in narcotics investigations, trial counsel as

a matter of trial tactics could have rationally decided that an objection would have
led the State to qualify Sergeant Martinez as an expert and chose not to risk the
district court declaring Sergeant Martinez as an expert.

6. Jury Instructions

a. Lever Included Offense

56} Defendant contends his counsel provided ineffective assistance by not
requesting the lesser included jury instruction for simple possession. We do not
agree. Counsel may have determined that the better strategy was an all-or-nothing
strategy forcing the jury to choose between possession with intent to traffic in
cocaine or acquittal, without the option of finding Defendant guilty of a lesser

offense. State v. Baca, 1997-NMSC-059, q 25, 124 N.M. 333, 950 P.2d 776 (stating

13]

that “a prima facie case is not made when a plausible, rational strategy or tactic can
explain the conduct of defense counsel” (internal quotation marks and citation
omitted)). This is especially so since Defendant sought to convince the jury that
Wilbur was the individual trafficking from Defendant’s residence and claimed that
he had never used illegal drugs and the first time he saw the fourteen bindles of
cocaine was when the officers showed them to him. |

b. Voluntariness of Confession

{57} Defendant claims counsel should have requested the jury be instructed on the
voluntariness of his confession with UJI 14-5040 NMRA. As a matter of trial
strategy Defense counsel may have determined it was better not to draw attention to
Defendant’s alleged admission of owning everything in the tool box and room where
the narcotics and drug paraphernalia were discovered by asking the jury to deliberate
on the voluntariness of his admissions and instead focus the jury’s attention on
Wilbur and Defendant’s testimony that he had never seen the drugs or paraphernalia
until the officers showed them to him.

c. Constructive Possession

{58} Finally Defendant claims counsel should have requested a constructive
possession instruction that included the last bracketed phrase of ul I 14-3130
NMRA, that addressed the non-exclusive control over the premises where the drugs

were found. UJI 14-3130 defines possession of a controlled substance as follows:

“A person is in possession of cocaine when he knows it is on his person or in his
presence, and he exercises control over it.” The instruction provides three spiel
provisions that may be included with the definition to clarify the method by which
possession of a controlled substance may occur depending on the facts of the case.
Id. In this case, the jury was given a definitional instruction that included the first
option, which read as follows:

A person is in possession of cocaine when he knows it is on his person
or in his presenice, and he exercises control over it.

Even if the substance is not in his physical presence, he is in possession
if he knows where it is, and he exercises control over it.

59} Defendant claims his counsel was ineffective for not requesting the third
option which provides: “A person’s presence in the vicinity of the substance or his
knowledge of the existence or the location of the substance, is not, ™ itself,
possession.” UJI 14-3130. Defendant claims the third option would have finihered
his defense that the tool box and its contents belonged to Wilbur, the tenant who
lived in a detached backyard apartment.

{60} The instruction given to the jury required the jury to find more than presence
of the cocaine or Defendant’s knowledge of its location, but also that Defendant
exercised control over it. Therefore the instruction did not allow the jury to find
Defendant guilty based on the mere presence of drugs in a room in which he did not

have exclusive control. Given Defendant’s claim that he was not trafficking cocaine

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from his residence, did not recognize the tool box or any of the items in the tool box
or other evidence until the day the officers showed him the evidence, euauel as a
matter of strategy may have determined that the instruction given better aligned with
his defense. Therefore, Defendant has failed to demonstrate the prejudice vendita
from his counsel’s failure to request the third option.

{613 Although we hold that Defendant has failed to make a prima facie case of
ineffective assistance of counsel on direct appeal, he is not precluded from —
these issues in a collateral habeas corpus proceeding. See State v. Crocco, 2014-
NMSC-016, 9 24, 327 P.3d 1068 (noting that “[i]f facts beyond those in the record
on appeal could establish a legitimate claim of ineffective assistance of counsel, [the
djefendant may assert it in a habeas corpus proceeding where an adequate factual
record can be developed for a court to make a reasoned determination of the issues”).
CONCLUSION

{62} . For the foregoing reasons, we reverse and vacate Defendant’s conviction for
possession of drug sarephennlia: but affirm his conviction for possession of a| —
controlled substance with intent to distribute.

3} ITISSO ORDERED.

—

WwW bo

WE CONCUR:
M. VANZI, Judge

JULIE J. VARGAS,(Judge

May 6, 2019- State of New Mexico v. Romeo Martinez-Melgar, No. A-1-CA-34972

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