A-1-CA-36513 | Omnilex

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Court of Appeals of New Mexico
Filed 8/29/2019 3:22 PM

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
Plaintiff-Appellee, A. ~fe4
Mark Reynolds
Vv. No. A-1-CA-36513
MALACHI MOFFITT,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
James Waylon Counts, District Judge

Hector H. Balderas, Attorney General

Maha Khoury, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

J.K. Theodosia Johnson, Assistant Appellate Defender
Santa Fe, NM

for Appellant

MEMORANDUM OPINION

DUFFY, Judge.

11}. Defendant, having led police on a high speed chase in a borrowed vehicle,
was convicted of aggravated fleeing from a law enforcement officer, possession of
methamphetamine, failure to give immediate notice of an accident, and driver’s
license not in possession. Defendant contends that the district court erred in denying

his motion for a continuance and challenges the sufficiency of the evidence

supporting his conviction for driver’s license not in possession. We conclude that

the district court did not abuse its discretion in denying Defendant’s motion for a
continuance but reverse Defendant’s conviction for driver’s license not in
possession.

BACKGROUND

2} Defendant’s girlfriend, Yolanda Martinez, agreed to let Defendant borrow her
Dodge Journey and left the keys inside the center console so that Defendant could
pick up the vehicle while she was at work. Defendant apparently found another
Dodge Journey in the parking lot and mistakenly opened the door to look for the
keys, setting off the vehicle’s alarm. Defendant eventually realized that this was not
Martinez’s vehicle and after locating her Dodge Journey, found the keys inside and
drove off. The owner of the original vehicle, however, reported the incident to the
police, alleging that someone had broken into her car and stolen money. Not long
afterward, a police officer observed a Dodge Journey with the same description as
Martinez’s vehicle and with a similar license plate. The officer activated his lights
and siren and attempted to pull the vehicle over. The driver did not stop and instead
led the officer on a chase. At trial, the officer identified Defendant as the driver.

33} During the chase, the officer saw the vehicle pull over briefly and let out a
passenger before continuing. The officer was ordered to end his pursuit and shortly

thereafter, Defendant lost control of the vehicle, crashed into a telephone pole, and

left the scene. While executing a search warrant on the abandoned vehicle, police
found methamphetamine, marijuana, and paraphernalia, including syringes and a
marijuana pipe.

(4; Over the next thirteen months, Defendant’s case was assigned to three
different public defenders and was set for trial four times. On the morning of trial on
May 4, 2017, Molly Kicklighter—Defendant’s third public defender—orally
requested that the trial be continued. She said that she had about 150 to 160 cases |
and had only been assigned to Defendant’s case one month ago. In addition,
Kicklighter stated that just that morning, she had learned that Martinez was at the
courthouse to testify in Defendant’s case; Kicklighter was acquainted with Martinez
through another client with whom Martinez also had a relationship. Kicklighter said
she had not investigated Defendant’s case “sufficiently to even understand how
[Martinez] is involved[.]” Kicklighter also noted that while Martinez’s involvement
may not present a conflict of interest, Defendant may suspect one given
Kicklighter’s work on behalf of her other client. Kicklighter candidly represented
that she was unprepared for Defendant’s trial and would be unable to provide
Defendant with competent representation. The State responded that Martinez was
named in a police report as the owner of the car involved in the incident and
therefore, Defendant’s attorney should have known the nature of her involvement.

The district court denied the motion to continue without explaining its reasoning.

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{5} Later that day, after trial had commenced, Kicklighter argued that upon further
review of the case, she expected the State to call Martinez to testify that items found
in her vehicle, including “methamphetamine and paraphernalia,” did not belong to
her and therefore, Kicklighter would have to impeach Martinez. The district court

explored Kicklighter’s alleged conflict and the following exchange occurred:

District court: [Martinez] is not your client.

Kicklighter: She is not my client.

District court: No... attorney-client relationship between you and
her.

Kicklighter: Correct. But then I am put in a position where I have

to disclose certain things to a different division in
regard to another case, potentially at sentencing.

District court: And so what—are—are you, seeking to enlighten
me, or—

Kicklighter: Judge, I am informing the court that yes indeed,
upon further evaluation of this situation, there is a
direct conflict ... between my existing client,

[Defendant], and another client of mine. That
conflict comes in where I need to impeach the
testimony proposed of Yolanda Martinez, who will,
I expect, testify for the State this afternoon. For that
reason, judge, I am asking . . . to be relieved of my
duties of representation of [Defendant] in this case,
which I expect will result in a mistrial.

6} The district court found that Kicklighter had not articulated a conflict of
interest, denied her motion to be relieved of representation, and the trial continued.

The jury convicted Defendant of aggravated fleeing a law enforcement officer,

possession of methamphetamine, failure to give immediate notice of accidents,
failure to give written reports of accidents, and driver’s license not in possession.
The district court vacated Defendant’s conviction for failure to give written reports
of accidents on double jeopardy grounds.

DISCUSSION

I. Denial of Continuance

{7} Defendant argues that the district court erred in denying his motion for a
continuance. We review the district court’s denial of a continuance for an abuse of
discretion. State v. Salazar, 2007-NMSC-004, 7 10, 141 N.M. 148, 152 P.3d 135
(“The grant or denial of a continuance is within the sound discretion of the trial court,
and the burden of establishing abuse of discretion rests with the defendant.”). “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. Rojo, 1999-NMSC-001, 7 41, 126 N.M. 438, 971 P.2d
829 (internal quotation marks and citation omitted). It is Defendant’s burden to
establish an abuse of discretion, and further, “that the abuse was to the injury of the
defendant.” Salazar, 2007-NMSC-004, 4 10 (internal quotation marks and citation

omitted).

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83 Our Supreme Court articulated seven factors that courts should consider when
deciding whether to grant or deny a motion for a continuance:
the length of the requested delay, the likelihood that a delay would
accomplish the movant's objectives, the existence of previous
continuances in the same matter, the degree of inconvenience to the
parties and the court, the legitimacy of the motives in requesting the
delay, the fault of the movant in causing a need for the delay, and the
prejudice to the movant in denying the motion.
State v. Torres, 1999-NMSC-010, § 10, 127 N.M. 20, 976 P.2d 20. As an initial
matter, we reject Defendant’s argument that the district court abused its discretion
by not considering the Torres factors. The district court is not required to set forth
the factual basis of its decision, and we will not presume from the absence of findings
in the record that the district court did not consider the Torres factors when deciding
to deny the continuance. See State v. Gonzales, 1999-NMCA-027, 9 11, 126 N.M.
742, 975 P.2d 355 (“No rule of criminal procedure requires the district court to set
forth the factual basis of its decision.”); see also State v. Finnell, 1984-NMSC-064,
4 23, 101 N.M. 732, 688 P.2d 769 (“Abuse of discretion must be shown and will not
be presumed.”).
{9} Applying the Torres factors here, we conclude that the district court did not
abuse its discretion in denying the motion for a continuance. Kicklighter did not
request a specific amount of time for the continuance, and although Defendant

argues on appeal that minimal time was needed to review the file and investigate the

case, the district court was given no indication that the requested delay would be

minimal. Compare Torres, 1999-NMSC-010, J 15 (holding that a requested delay
of a week or less weighed in favor of continuance), with State v. Salazar, 2006-
NMCA-066, J 24, 139 N.M. 603, 136 P.3d 1013 (holding that the denial of a
continuance was appropriate where the delay was likely at least two months).
Similarly, Defendant did riot clearly establish what objective he sought to
accomplish through a continuance. Kicklighter stated that she had not sufficiently
investigated Defendant’s case and that Defendant may perceive a conflict of interest,
but she did not state what additional investigation was necessary before she would
be prepared to proceed or how a continuance would resolve the perceived conflict.
See Salazar, 2006-NMCA-066, § 25 (denying the defendant’s request for a |
continuance by applying the Torres factors and noting that the defendant had “failed
to show that additional time would accomplish anything”).

410} Defendant’s trial had been set four times in thirteen months, though it is not
clear from the record why the trial had been reset multiple times and the parties do
not provide any explanation in their briefing. See id. J] 24, 26 (noting that the
defendant had been granted four continuances and trial had been delayed eight
months). As well, the continuance was sought on the morning of trial, and “we
presume resetting the trial date on the day trial is supposed to begin is inconvenient
for the parties and for the court.” State v. Gonzales, 2017-NMCA-080, {| 36, 406

P.3d 534; Salazar, 2006-NMCA-066, J 26 (“The [s]tate’s witnesses had already

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been subpoenaed for trial and a continuance would have made that a wasted effort.”).
However, given Kicklighter’s unchallenged representation that she had an
overwhelming caseload that prevented her from properly investigating and preparing |
for trial, we find no indication that the continuance was requested for illegitimate
motives, nor do we fault counsel for causing the delay. Salazar, 2007-NMSC-004,
q 21 (holding that the defendant was not at fault for causing the delay when he had
“his third defense attorney because of staffing problems at the Public Defender
Department”); see also In re Camino Real Envtl. Ctr., Inc., 2010-NMCA-057, ¥ 23,
148 N.M. 776, 242 P.3d 34 (“When reasons both supporting and detracting from a
decision exist, there is no abuse of discretion.”).
{11} Finally, Defendant has not shown that he was prejudiced. Salazar, 2007-
NMSC-004, J 16 (“In addition to meeting the Torres factors, Defendant must show
that the denial of the continuance prejudiced him.”).

No more prejudice need be shown than that the trial court’s order may

have made a potential avenue of defense unavailable to the defendant.

We do not ask whether the evidence was critical but, instead, whether

the defendant made a plausible showing of how the [evidence to be

gathered or developed by additional time] would have been both

material and favorable to his defense.
Id. (alterations, internal quotation marks, and citations omitted). Defendant argues
that he was denied a potential avenue of defense because his attorney failed to

explore with Martinez who else may have had access to the car. See State v. Howl,

2016-NMCA-084, 7 31, 381 P.3d 684 (stating that “the mere presence of the

contraband [in a vehicle] is not enough to support an inference of constructive
possession if the accused did not have exclusive control over the area searched.”
(internal quotation marks and citation omitted)). As an initial matter, this avenue of
defense relates only to Defendant’s possession charge and would not have affected
Defendant’s felony conviction for aggravated fleeing or his misdemeanor conviction
for failure to give immediate notice of an accident. Regardless, Defendant fails to
establish that this avenue of defense was foreclosed to him.

{12} It is clear from the record that Kicklighter contemplated exploring who had
access to the Dodge Journey and the drugs inside during her examination of
Martinez. At a conference after opening arguments, Kicklighter stated that she
expected Martinez to testify that the methamphetamine and paraphernalia found in
the vehicle did not belong to her. Kicklighter went on to state that Martinez was the
girlfriend of another client who was living in a clean and sober household, and
Martinez had represented that her residence was a safe household. Kicklighter
claimed that if she were to argue that the drugs belonged to Martinez and were
available to her other client, her other client may be prejudiced. These statements
demonstrate that Kicklighter considered that another person may have had access to
the vehicle and its contents as an avenue of defense to the possession charge. A

continuance would not have changed anything.

{13}, Moreover, Defendant has not established that had Martinez been impeached,
her testimony would have been both material and favorable to his defense. Torres,
1999-NMSC-010, 9 12-13 (holding that the defendant’s proffer regarding the
specific testimony that a missing witness would have offered was material and
favorable to the defense because it was consistent with the theory that another person
was driving); see also Salazar, 2006-NMCA-066, § 28 (citing State v. Brazeal, 1990-
NMCA-O010, 9 26, 109 N.M. 752, 790 P.2d 1033 for the proposition that where
continuance is sought to obtain defense witnesses, in order to show prejudice, there
must be a showing that the witness was willing to testify and would have given
substantially favorable evidence). We will not conclude that an avenue of defense of
was made unavailable based only upon speculation that a witness may have provided
favorable testimony. See Salazar, 2006-NMCA-066, F{ 1-3, 27 (holding that the |
defendant failed to demonstrate prejudice from being denied a continuance to obtain
an evaluation because the prejudice was speculative).

{14} Given that Kicklighter acknowledged the avenue of defense before Martinez
testified, as well as the possibility that Martinez’s testimony may implicate |
Defendant on the possession charge, her decision to forego questioning Martinez
about access to and control of the vehicle may well have been trial strategy and not
an omission. See Lytle v. Johnson, 2001-NMSC-016, § 47, 130 N.M. 198, 22 P.3d

666 (“The decision whether to call a witness is a matter of trial tactics and strategy

within the control of trial counsel.” (internal quotation marks and citation omitted)).
Although Defendant suggests that Kicklighter was forced to choose between the
rights of two clients with a relationship to Martinez, Kicklighter never made clear
how her cross examination of Martinez was in fact compromised, and we will not
presume without a factual record that an attorney violated her duty to diligently
represent Defendant under Rule 16-103 NMRA. For these reasons, we conclude that
Defendant has failed to demonstrate prejudice resulting from the district court’s
denial of his motion for a continuance.

{15} We address separately Defendant’s argument that he would be denied
effective assistance of counsel without a continuance. In State v. Salazar, our
Supreme Court clarified that “if the motion for a continuance depends on a claim
that, absent a continuance, the defendant will have been or will be denied effective
assistance of counsel,” the defendant must demonstrate to the trial court that a.
presumption of prejudice exists under the circumstances. 2007-NMSC-004,
{| 24-27. Defendant, however, did not argue or otherwise demonstrate to the district
court that prejudice may be presumed in this case. See Bell v. Cone, 535 U.S. 685,
695-96 (2002) (identifying three situations implicating the right to counsel where
prejudice may be presumed: (1) “complete denial of counsel”; (2) “if counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing”; and

(3) “where counsel is called upon to render assistance under circumstances where

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competent counsel very likely could not” (internal quotation marks and citations
omitted)).
{16 “[A]bsent a basis for presuming prejudice, a defendant must establish he or
she was denied effective assistance of counsel in order to show on appeal that a
motion for a continuance should have been granted.” Salazar, 2007-NMSC-004,
q 25.
A convicted defendant making a claim of ineffective assistance must
identify the acts or omissions of counsel that are alleged not to have
been the result of reasonable professional judgment. The court must
then determine whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of professionally
competent assistance.
Moreover, even if counsel’s performance was constitutionally
defective, the defendant must still affirmatively prove prejudice. In
other words, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.”
Brazeal, 1990-NMCA-010, {ff 22-23 (quoting Strickland v. Washington, 466 U.S.
668, 690 (1984)).
417, Defendant has identified no act or omission he claims was defective other than
Kicklighter’s decision not to impeach Martinez regarding access to the vehicle. For
the reasons discussed above, we do not conclude that Kicklighter’s performance was
anything other than an exercise of reasonable, professional judgment, nor has

Defendant argued that but for Kicklighter’s alleged error, there is a reasonable

probability that the result of the proceeding would have been different. Defendant

has not met his burden to establish that he was denied effective assistance of counsel,
and detecting no abuse of discretion based upon the Torres factors, we affirm the
district court’s denial of Defendant’s motion for a continuance. We note, however,
that because Defendant did not raise a separate ineffective assistance of counsel
claim in this appeal, he “is free to pursue habeas corpus proceedings where he may
actually develop the record with respect to these issues.” State v. Arrendondo, 2012-
NMSC-013, 44, 278 P.3d 517.

Il. Sufficiency of the Evidence

{18} The parties agree that the evidence was insufficient to support Defendant’s
conviction on the charge of driver’s license not in possession, and although we are
not bound by the State’s concession, having reviewed the record on appeal, we agree
that the evidence was insufficient. See State v. Guerra, 2012-NMSC-027, § 9, 284
P.3d 1076 (providing that the state’s concession of an issue does not bind an
appellate court). Accordingly, we reverse Defendant’s conviction on that charge.
CONCLUSION

{19} We reverse Defendant’s conviction for driver’s license not in possession and
affirm on all remaining matters. We remand to the district court for resentencing as

may be necessary.

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20} ITISSO ORDERED.

Megan POLL

MEGAN P. DUFFY, )

WE CONCUR:

JACQUELINE R. MEDINA, Judge

RICHARD C. BOSSON, Yudge Pro Tempore

August 29, 2019- State of New Mexico v. Malachi Moffitt, No. A-1-CA-36513

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