State v. Sloan

                                                              Office of Director             New Mexico
                                                                     2019.12.09              Compilation
                                                                                             Commission
                                                               '00'07- 09:19:13
            IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: October 31, 2019

No. S-1-SC-36696

STATE OF NEW MEXICO,

      Plaintiff-Appellee,

v.

MATTHEW SLOAN,

      Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
Lisa B. Riley, District Judge

Released for Publication December 17, 2019.

Law Offices of Adrianne R. Turner
Adrianne R. Turner
Albuquerque, NM

for Appellant

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

for Appellee

                                        OPINION

THOMSON, Justice.

{1}     This Court’s dispositional order reversed Defendant Matthew Sloan’s conviction
at his first trial based on faulty jury instructions. See State v. Sloan, S-1-SC-34858, ¶
13, dispositional order (June 23, 2016) (nonprecedential). Defendant now appeals his
convictions for burglary and felony murder after a second jury trial. At the second trial,
the State presented evidence that Defendant, armed with a rifle and accompanied by
two other men, broke into the victim’s house to retrieve drugs or money from the victim
and that Defendant shot and killed the victim during the burglary. On appeal, Defendant
argues that (1) the district court denied him his right to be present and to confront
witnesses against him by failing to determine whether he made a valid waiver of his
right to be present at three pretrial hearings, (2) he received ineffective assistance from
his trial counsel, and (3) the district court committed reversible error by declining to
instruct the jury on voluntary manslaughter as a lesser included offense. For the
reasons that follow, we affirm Defendant’s convictions.

I.    BACKGROUND

{2}     Defendant drove from Carlsbad to the victim’s house in Artesia with two
accomplices, Donald Ybarra (Duck) and Senovio Mendoza (Hoss), to obtain drugs or
money to buy drugs from the victim, who ostensibly owed Hoss. Defendant habitually
used methamphetamines and testified that he had been using for multiple days at the
time the three left for Artesia and that they all smoked methamphetamines throughout
the trip.

{3}   When the three men first arrived at the victim’s house, no one came to the door.
They drove around Artesia and made other stops before returning to the victim’s house
a second time. That time Hoss knocked on and kicked the door while Defendant and
Duck waited in the truck. Hoss returned to the truck and told them the victim said to
come back later.

{4}    The three men then drove to Walmart where they bought beanies that Duck
modified to mask their faces. When they returned to the victim’s house a third time and
Hoss still could not get the victim to open the door, they put the masks on and
approached the house. Defendant was armed with a rifle.

{5}     Hoss kicked in the door to the victim’s house, and Defendant entered the house
yelling “Pecos Valley Drug Task Force.” Defendant located the victim, pointed the rifle,
and yelled, “Get on the floor”! Meanwhile Hoss searched the house. During the robbery,
Defendant shot the kneeling victim in his upper-left forehead near the hairline from
approximately three feet away, killing him. The three men left the house after the
shooting but returned later to retrieve a flashlight. At his second jury trial, Defendant
was convicted of and sentenced for felony murder and tampering with evidence. He
appeals his convictions. We discuss additional facts relevant to the issues Defendant
raises on appeal in context as needed.

II.   DISCUSSION

A. Rights to Presence and Confrontation

{6}     Defendant remained incarcerated prior to trial and was not transported to any of
the three pretrial hearings. He argues that he was denied his right to be present and his
right to confront the witnesses against him at critical stages of trial during the three
pretrial hearings. These hearings involved prosecution motions-in-limine including a
motion to qualify an expert witness, a scheduling conference during which counsel and
the district court considered whether the judge had a conflict of interest, and a motion to
exclude testimony of Defendant’s sister. Contrary to Rule 5-612(B)(2) NMRA, the record
for each of these hearings lacks a written waiver of Defendant’s appearance executed
by Defendant and approved by defense counsel and the district court. Instead, defense
counsel orally waived Defendant’s appearance at each hearing.

{7}   Only the hearing concerning qualification of the expert witness warrants
substantive legal analysis. We conclude that Defendant was not denied his right to be
present or his right to confront the witnesses against him.

1.     Standard of review

{8}    Whether a defendant’s constitutional right was violated is a question of law that
this Court reviews de novo. See State v. Montoya, 

, 

; see also State v. Boyse, 

, 

 (“‘We review
[questions] of statutory and constitutional interpretation de novo.’” (alteration in original)
(quoting State v. Ordunez, 

, 

)).

2.     Defendant’s right to be present

{9}      “There is no dispute that a criminal defendant charged with a felony has a
constitutional right to be present and to have the assistance of an attorney at all critical
stages of a trial.” State v. Padilla, 

, 

, 

(citing U.S. Const. amends. VI (guaranteeing an accused “the right . . . to be confronted
with the witnesses against him”), XIV (guaranteeing protection of rights by “due process
of law”); N.M. Const. art. II, § 14 (guaranteeing an accused the right of a defense “in
person” and the right of confrontation)); see also State v. Corriz, 

, ¶ 5,

, 

 (observing that it “is the defendant’s right to be present in
the courtroom at every stage of the trial” but that this right “is not an absolute right”). A
defendant bears the burden of proving that a particular stage of a criminal proceeding is
“critical,” which triggers the constitutional right to be present at that stage. See State v.
Torres, 

, 

 (citing Kentucky v. Stincer, 

 (1987)).

{10} Torres relies on Stincer concerning what makes a hearing a critical stage of the
proceeding. Stincer reasoned that critical stages of a criminal proceeding include any
stage in which the defendant’s “‘presence has a relation, reasonably substantial, to the
ful[l]ness of his opportunity to defend against the charge.’” 

 (quoting
Snyder v. Massachusetts, 

 (1934), overruled in part on other
grounds by Malloy v. Hogan, 

, 2 n.1, 3 (1964)); accord State v. Acuna, 1967-
NMSC-090, ¶ 10, 

, 

 (“To constitute a critical stage of a criminal
proceeding, the particular proceeding or act in question must be one at which, or in
connection with which, the accused’s constitutionally protected rights may be lost or
adversely affected.”). Therefore, a particular stage of a criminal proceeding may be
critical if “the defendant’s presence at the proceeding would [contribute] to the
defendant’s opportunity to defend himself against the charges,” Stincer, 482 U.S at 744
n.17, such that “a fair and just hearing would be thwarted by his absence,” Snyder, 

. If a particular stage of a criminal proceeding is critical, then the Due
Process Clause of the Fourteenth Amendment confers upon the defendant the right to
be present at that stage in the proceeding. See Stincer, 

 (“[E]ven in
situations where the defendant is not actually confronting witnesses or evidence against
him, he has a due process right ‘to be present in his own person whenever his presence
has a relation, reasonably substantial, to the ful[l]ness of his opportunity to defend
against the charge.’” (citation omitted)).

{11} Nevertheless, Defendants may waive their right of presence either personally or
through counsel. See Hovey v. State, 

, ¶ 17, 

, 

 (“[E]ven constitutional rights[] may be waived.”). Waiver of this constitutional right
through counsel generally requires the defendant’s express consent, “unless the
defendant voluntarily elects to absent himself, or is excluded from the courtroom by
reason of ‘disruptive, contumacious, or stubbornly defiant’ conduct.” Id. ¶ 24 (Walters,
J., specially concurring) (citation omitted).

{12} Rule 5-612 incorporates a defendant’s constitutional right to be present at all
critical stages of trial into the New Mexico Rules of Criminal Procedure by prescribing
when New Mexico requires the defendant’s presence, when and how the defendant
may waive that requirement, and perhaps most significant to this case, when New
Mexico does not require the defendant’s presence. See Rule 5-612; see also State v.
Clements, 

, ¶ 12, 

, 

 (“A defendant’s right to
be present during all stages of a criminal trial has its genesis in the sixth amendment’s
confrontation clause and the fourteenth amendment’s due process clause. This right
has been incorporated into [Rule 5-612(A) NMRA (1986)].”). Rule 5-612(A) provides
that “the defendant shall be present at all proceedings, including the arraignment, all
hearings and conferences, argument, the jury trial and during all communications
between the court and the trial jury.” Notwithstanding the breadth of Rule 5-612(A), Rule
5-612(D) specifies certain situations in which the defendant’s presence is not required,
including proceedings that involve “only a conference or hearing upon a question of
law.”

{13} Because the right to be present is protected by the Fourteenth Amendment and
incorporated into our rules of criminal procedure, our analysis of this issue is twofold.
First, we must determine whether each of the following three pretrial hearings was a
“critical” stage of Defendant’s criminal proceeding. If any of the three hearings was a
critical stage of Defendant’s criminal proceeding, then Defendant had a due process
right to be present at that hearing. Second, we must determine whether any of the three
pretrial hearings involved “only a conference or hearing upon a question of law”
because our rules of criminal procedure do not require Defendant to be present at such
a conference or hearing. If a hearing was not a critical stage and our rules did not
require Defendant’s presence, his right to be present was not violated.

{14} Defendant urges us to reverse his conviction, citing State v. McDuffie, 1987-
NMCA-077, ¶ 10, 

, 

, for the broad proposition that he has a
constitutional right to be present at all pretrial hearings “where testimony is to be taken.”
Defendant maintains that he did not waive that right. The State argues that Defendant’s
presence was not required at these noncritical stages of the proceedings and that if he
was entitled to be present he waived his right to appear. The State also appears to
argue that because Defendant waived his appearance through his counsel, this Court
should determine that Defendant failed to preserve for appeal the issue of his right to be
present. But see Rule 12-321(B)(2)(d) NMRA (stating that a party may “for the first time
on appeal” raise an issue concerning a fundamental right); see also State v. Gomez,

, ¶ 31 n.4, 

, 

 (“Even if [Defendant]’s
contentions before the trial court had failed to preserve the . . . constitutional claim, we
could nevertheless consider it because [confrontation] is a fundamental right.”).

{15} For reasons discussed next, we conclude that Defendant did not have the right to
be present at any of the three pretrial hearings under the Fourteenth Amendment nor
did Rule 5-612 require Defendant’s presence.

a.      Motion in limine to allow expert testimony

{16} Defendant argues that he had the right to be present at a pretrial hearing in
which the State sought to admit Detective Rodriguez as an expert witness in blood
spatter analysis and to prohibit the defense from discussing the definition of “reasonable
doubt” at trial. 1 Defense counsel appeared telephonically and stated, “I’d like to waive
[Defendant]’s appearance at this. This is merely an administrative proceeding to clean
up some housekeeping matters.” The State indicated that it “anticipated potentially
putting on testimony” concerning admission of the blood spatter analyst as an expert
witness, and defense counsel reiterated that he waived Defendant’s appearance. The
blood spatter analyst testified generally about his education, experience, and
qualifications but did not testify concerning the facts or substance of the case. The
district court qualified the blood spatter analyst as an expert witness for trial subject to
the State laying an adequate foundation.

{17} Stincer provides that a critical stage of a proceeding is one in which a
defendant’s presence contributes to “the defendant’s opportunity to defend himself
against the charges” and thereby increases “the fairness of the proceeding.” See 

 n.17, 745. Stincer’s facts and procedural posture are instructive on this
issue. In Stincer, the defendant was excluded from an in-chambers hearing to
determine whether two child witnesses were competent to testify. 

. The
defendant’s counsel was present at the hearing and had an opportunity to cross-
examine the two child witnesses. 

. The questions posed to the child
witnesses in that hearing “were directed solely to each child’s ability to recollect and
narrate facts, to her ability to distinguish between truth and falsehood, and to her sense
of moral obligation to tell the truth.” 

. The child witnesses were not asked about
the substance of the testimony they would give at trial. 

. The district

1The district court allowed a brief discussion of the State’s motion concerning reasonable doubt before ruling that
there would be no discussion at trial “about what reasonable doubt is other than the definition in the UJI [14-5060
NMRA]” and that the court would “instruct the jury about [the UJI].”
court found that both child witnesses were competent to testify. 

. After trial, the
defendant appealed his conviction, arguing that his exclusion from the competency
hearing violated his due process rights under the Fourteenth Amendment. 2 See 

. Stincer affirmed the conviction because no evidence supported a conclusion that
the defendant’s “presence at the competency hearing . . . would have been useful in
ensuring a more reliable determination as to whether the witnesses were competent to
testify.” 

. Further, evidence did not support a conclusion that his presence
would have increased the fairness of the proceeding by, for example, “assist[ing] either
his counsel or the judge in asking questions that would have resulted in a more assured
determination of competency.” 

 Therefore the competency hearing in Stincer was not
a critical stage of the criminal proceeding, and the defendant did not have a due
process right to be present. See 

.

{18} In this case, the hearing on whether to qualify the blood spatter analyst as an
expert witness is analogous to the competency hearing in Stincer because both
hearings were intended to determine whether prosecution witnesses could testify
against the defendant at trial and neither hearing addressed the substance of that
testimony. In this case, the district court heard testimony concerning the qualifications
and background of the blood spatter analyst and made a preliminary determination that
his testimony would be admissible at trial as expert testimony. See Rule 11-104(A)
NMRA (“The court must decide any preliminary question about whether a witness is
qualified, a privilege exists, or evidence is admissible.”); see also State v. Downey,

, 

, 

 (describing the district court’s
gatekeeper role in qualifying an expert to ensure that admitted evidence is relevant and
reliable); State v. Fry, 

, 

, 

 (holding
that the district court’s qualification of an expert to provide an opinion on blood spatter
analysis was proper). There is no evidence in this case that Defendant’s presence
would have increased the fairness of the pretrial hearing.

{19} At trial, Defendant heard testimony of the blood spatter analyst concerning both
his qualifications and his expert opinion, consistent with Rule 11-104(A), and also had
the opportunity to confront and cross-examine the blood spatter analyst. There is no
indication that Defendant’s presence at the pretrial hearing would have strengthened his
counsel’s challenge to the blood spatter analyst’s qualifications or would have otherwise
resulted in a more assured determination of whether the analyst could testify as an
expert witness.

{20} We conclude that Defendant did not have a right to be present at a hearing on an
affirmative motion in limine to establish the qualifications of an expert who was later
subject to cross-examination at trial on the same qualifications. This pretrial hearing was
not a critical stage of Defendant’s criminal proceeding, and due process did not afford
him the right to be present.


2The Stincer defendant also argued on appeal that he was deprived of his rights under the Confrontation Clause of
the Sixth Amendment. See Stincer, 

. Defendant makes a similar argument, which this opinion
addresses later.
{21} Contrary to our conclusion, Defendant relies on an overly broad reading of
McDuffie, 

, to argue that the hearing to qualify the blood spatter analyst
as an expert was a critical stage simply because the expert testified. In McDuffie, the
Court of Appeals held that a specific suppression hearing was an essential and critical
part of the proceedings and accordingly that the defendant’s appearance at that hearing
was essential. See id. ¶ 9. In reaching this holding, the Court of Appeals concluded that
“a defendant has a right to be present at a suppression hearing where testimony is to be
taken.” Id. ¶ 10. Defendant contends that this language in McDuffie establishes a per se
right to be present whenever testimony is taken.

{22} Defendant’s argument ignores the essential holding in McDuffie, which is
consistent with United States Supreme Court case law. See id. ¶¶ 9, 12 (concluding that
defense counsel could not waive a defendant’s appearance where defense counsel had
not spoken to the defendant and where the hearing constituted the “defendant’s only
realistic chance of prevailing”). McDuffie affirms that the Sixth and Fourteenth
Amendments to the United States Constitution extend the right to be present “to all
hearings that are an essential part of the trial—i.e., to all proceedings at which the
defendant’s presence has a relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge.” McDuffie, 

, ¶ 9 (internal
quotation marks and citation omitted). However, the broad declaration “that a defendant
has a right to be present at a suppression hearing where testimony is to be taken,”
McDuffie, 

, ¶ 10, fails to make clear that the right is circumscribed: The
subject matter of the testimony identifies whether the hearing constitutes a critical stage
of trial, as discussed below.

{23} In analyzing a defendant’s right to be present at a critical stage of trial, McDuffie
cites four federal cases. See id. ¶ 10. Those cases distinguish suppression hearings
that do not take testimony related to a defendant’s guilt or innocence from suppression
hearings that concern evidentiary facts about the commission of a crime or a
defendant’s guilt or innocence. Compare United States v. Bell, 

 (2nd
Cir. 1972) (determining that a defendant’s right to be present was not violated where the
trial court took evidence concerning confidential federal profiling for threat reduction in
air transportation but where witness testimony “bore no relationship at all to the question
of [the defendant]’s guilt or innocence of the crime charged”), and United States v.
Gradsky, 

 (5th Cir. 1970) (determining that an evidentiary hearing
was not a critical stage where the issue “was not one of guilt or innocence but . . .
whether the evidence leading to the appellants’ convictions was tainted”), with United
States v. Hurse, 

 (8th Cir. 1973) (per curiam) (determining that a
supplemental evidentiary hearing was a critical stage where the evidence taken
concerned the existence of probable cause for the search, which was related to the
question of the defendant’s guilt or innocence of the crime), and United States v. Dalli,

 (2nd Cir. 1970) (determining that a defendant voluntarily waived the
right to be present at a hearing where the evidence taken concerned the existence of
probable cause for arrest, which was related to the question of the defendant’s guilt or
innocence of the crime). These federal cases are consistent with Snyder and Stincer
because they affirm that “critical” stages of criminal proceedings are stages in which
defendants’ presence increases their ability to defend themselves on questions of their
guilt or innocence. McDuffie affirms our conclusion that Defendant did not have a due
process right to be present because the testimony concerned the blood spatter analyst’s
qualifications, not evidentiary facts related to Defendant’s guilt or innocence.

{24} We next turn to Rule 5-612 to determine whether it required Defendant’s
presence at the pretrial hearing to consider qualifications of the blood spatter analyst.
Although Rule 5-612(A) requires a defendant to be present at “all proceedings . . . [and]
all hearings and conferences,” Rule 5-612(D)(3) states that a defendant’s presence is
“[n]ot [r]equired” at proceedings that involve “only a conference or hearing upon a
question of law.” We note equivalence between the federal procedural rule and the New
Mexico procedural rule that govern when a defendant’s presence is not required.
Compare Fed. R. Crim. P. 43(b)(3) (“A defendant need not be present . . . [when t]he
proceeding involves only a conference or hearing on a question of law.”), with Rule 5-
612(D)(3) (same).

{25} Under Fed. R. Crim. P. 43, defendants “must be present” at all stages of a
criminal proceeding in which their presence, as a practical matter, would aid their
counsel in presenting their defense. See United States v. Reyes, 

, 1191-
92 (9th Cir. 2014) (“We held that Rule 43 did not mandate the defendant’s presence
because his presence would have contributed nothing substantial to his opportunity to
defend since the matters discussed predominantly involved questions of law.” (internal
quotation marks and citations omitted)); see also United States v. Gonzales-Flores, 

 (4th Cir. 2012) (“[T]he whole point of the right to be present (in both its
constitutional and statutory dimensions) is to permit the defendant to contribute in some
meaningful way to the fair and accurate resolution of the proceedings against him.”);
United States v. Jones, 

 (1st Cir. 2012) (providing that the rationale for
the Rule 43 “explicit exception for ‘a conference or hearing on a question of law’” is “that
a defendant’s presence on a legal issue . . . is not going to aid the defense counsel in
making such arguments” (citation omitted)). We note the similarity in effect between the
analysis under Rule 43 (and, by extension, Rule 5-612) and the foregoing analysis
under the Fourteenth Amendment. Concerning the pretrial hearing to qualify the blood
spatter analyst, Defendant did not have a right under the Fourteenth Amendment to be
present at a hearing unrelated to his guilt or innocence, and Rule 5-612 did not require
Defendant’s presence at this hearing concerned only with a question of law.

b.     Scheduling conference

{26} Defendant contends that he had a right to be present at a scheduling conference
on December 5, 2016, in which the parties and the district court discussed scheduling
matters and a possible conflict that might “disqualify the [c]ourt.” During that conference,
neither party took issue with the judge’s unspecified potential conflict of interest.
Defense counsel stated on the record, “My client . . . has authorized me to waive his
appearance for today’s hearing.”
{27} This scheduling conference was not a critical stage of Defendant’s criminal
proceeding. The judge’s potential conflict of interest was an uncontested issue, and the
scheduling conference did not provide an opportunity for either party to address the
charges against Defendant. See Stincer, 

 (providing that a defendant
has a constitutional right to be present when the defendant’s presence “‘has a relation,
reasonably substantial, to the ful[l]ness of his opportunity to defend against the charge.’”
(citation omitted)); accord Torres, 

. Defendant thus did not have
the constitutional right to be present at the scheduling conference. See Stincer, 

. Additionally, because Rule 5-612(D)(3) provides that defendants “need not
be present . . . when the proceeding involves only a conference,” Defendant’s presence
was also not required at the scheduling conference under our rules of criminal
procedure.

c.     Hearing to limit testimony of Defendant’s sister

{28} Finally, Defendant takes issue with the fact that he was not present at the
September 15, 2017, hearing that determined the scope of his sister’s testimony. Three
days before the jury trial began, the district court addressed the State’s motion to
exclude (on evidentiary grounds) the testimony of Defendant’s sister, Kelly Rickert,
regarding the background, character, and state of mind of Defendant. Defense counsel
again waived Defendant’s appearance. Without hearing testimony, the district court
addressed the straightforward legal question, whether the trial testimony of Defendant’s
sister could include the term duress in relation to Defendant. The district court did not
exclude Ms. Rickert’s testimony but properly limited it to relevant evidence.

{29} This pretrial hearing on September 15, 2017, was not a critical stage of trial
because the district court was enforcing a well-accepted principle of law concerning
limiting the scope of witness testimony about a defendant’s character or state of mind.
See, e.g., Rule 11-404 NMRA (prescribing limitations on the admissibility of character
evidence). Accordingly, because the hearing afforded no “opportunity to defend against
the charge,” Defendant did not have a right under the Fourteenth Amendment to be
present at this hearing. See Stincer, 

 (internal quotation marks and
citation omitted); accord Torres, 

. Similarly, our rules of criminal
procedure did not require Defendant to be present because the hearing concerned only
a question of law. See Rule 5-612(D)(3) (“A defendant need not be present . . . when
the proceeding involves only a conference or hearing upon a question of law.”).

3.     Defendant’s confrontation clause claim

{30} Concerning Defendant’s argument that his absence from the pretrial hearings
denied his right to confrontation, “[t]he United States Supreme Court consistently has
interpreted confrontation as a right that attaches at the criminal trial, and not before.”
State v. Lopez, 

, 

. This Court has also observed that
“a defendant’s right to confront witnesses against him is primarily a trial right, not a
pretrial right.” State v. Rivera, 

, 

, 

. In addition, because Defendant confronted and cross-examined the blood spatter
analyst at trial, his confrontation challenge fails. See Stincer, 

 (observing
that where a defendant has the opportunity for a full and effective cross-examination at
the time of trial, the defendant’s inability to cross-examine prior statements is not “of
crucial significance” (internal quotation marks and citation omitted)).

{31} We conclude that Defendant did not have a right to be present at any of the three
pretrial hearings at issue. He was not denied due process or an opportunity to confront
the State’s witnesses against him pursuant to the Sixth and Fourteenth Amendments,
and he was not required to be present under the New Mexico Rules of Criminal
Procedure.

B.     Ineffective Assistance of Counsel

{32} Defendant next argues his defense counsel was ineffective because (1)
Defendant did not authorize defense counsel to waive his appearance at the pretrial
hearings; (2) defense counsel failed to successfully challenge the admission of (a) the
expert opinion regarding blood spatter, (b) the recorded conversation between
Defendant and Hoss, whose previous trial was connected to the same murder, and (c)
Defendant’s recorded statement to officers; and (3) defense counsel failed to fully
develop Defendant’s “intoxication defense.”

1.     Standard of review

{33} “‘A convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction . . . has two components. First, the defendant must show
that counsel’s performance was deficient. . . . Second, the defendant must show that
the deficient performance prejudiced the defense.’” Lytle v. Jordan, 

, 

, 

 (omissions in original) (quoting Strickland v.
Washington, 

 (1984)). This Court has referred “to the two prongs of
this test as the reasonableness prong and the prejudice prong.” Patterson v. LeMaster,

, 

, 

. “Effective assistance of counsel is
presumed unless a defendant ‘demonstrates both that counsel was not reasonably
competent and that counsel’s incompetence caused the defendant prejudice.’” State v.
Sanchez, 

, ¶ 20, 

, 

 (citation omitted); State
v. Astorga, 

, 

 (providing that unless a defendant
establishes a prima facie case of ineffective assistance of counsel on direct appeal, “we
presume that counsel’s performance was reasonable”).

{34} “An error is found if the attorney’s conduct fell below that of a reasonably
competent attorney.” State v. Grogan, 

, 

, 

 (internal quotation marks and citation omitted). “When reviewing a claim of
ineffective assistance of counsel, we do not second-guess defense counsel’s trial
strategy and tactics.” Sanchez, 

, ¶ 20. “Further, an assertion of
prejudice is not sufficient to demonstrate that a choice caused actual prejudice.” 

 And
an appellate court may dispose of an ineffective assistance of counsel claim based
wholly on the lack of prejudice to simplify the disposition. Lukens v. Franco, 2019-
NMSC-002, ¶ 19, 

.

{35} This Court has expressed a preference to remand ineffective assistance of
counsel claims to the district court for an evidentiary hearing and habeas corpus
proceedings “because the record before the trial court may not adequately document
the sort of evidence essential to a determination of trial counsel’s effectiveness.” See
Grogan, 

 (internal quotation marks and citation omitted).

2.     Waiver without authorization

{36} Based on our previous determinations that Defendant’s constitutional rights were
not violated and that Defendant’s presence was not required as provided under Rule 5-
612(D)(3), Defendant has not stated a prima facie claim for ineffective assistance of
counsel pursuant to an alleged waiver without authorization.

{37} The law does not require that a defendant “be present in court in order to waive
his right to be present,” and counsel may validly waive the right if authorized. Hovey,

, ¶¶ 17-18 (“The validity of the waiver may be established through the
defense counsel, the defendant, or both.”).

{38} But Defendant asserts that he did not authorize defense counsel to waive his
appearance and therefore that defense counsel provided ineffective representation
when he waived Defendant’s appearance. Insofar as Defendant’s assertion could give
rise to a viable ineffective assistance of counsel claim based on additional evidence, we
note that the additional evidence would likely come from privileged communications
between Defendant and defense counsel. See Rule 11-503 NMRA (providing a privilege
for attorney-client communications and a presumption that an attorney has authority to
claim the privilege “only on behalf of the client” and “absent evidence to the contrary”).

{39} Such communications are not part of the record before this Court. Cf. State v.
Roybal, 

, 

, 

 (“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 . . . .”); see also State v. Telles, 1999-NMCA-
013, ¶ 25, 

, 

 (“This Court cannot evaluate matters outside of
the record.”). We do not comment here on the merit of any claim Defendant may make
as part of a habeas corpus proceeding.

3.     Failure to challenge the admission of evidence

{40} Defendant also asserts his defense counsel was ineffective because counsel
failed to have some of the evidence against Defendant excluded from trial. Defendant
argues that defense counsel objected “pro forma” but “failed to meaningfully challenge
. . . expert blood spatter opinion testimony.” Defendant then argues that defense
counsel should have objected to the admission of a voice recording that was not
authenticated. Finally, Defendant argues that defense counsel should have requested a
hearing before admission to determine the voluntariness of Defendant’s video-recorded
statements to police.

{41} Typically, tactics determine the tenacity and manner with which trial counsel
fights the admissibility of evidence. See State v. Singleton, 

, 

, 

 (observing that strategic and tactical decisions include “‘what
witnesses to call, whether and how to conduct cross-examination, what jurors to accept
or strike, what trial motions should be made, and what evidence should be introduced’”
(citation omitted)). In this context, Defendant must establish that no reasonably
competent attorney would have abandoned objecting further in order to satisfy the
reasonableness prong. Cf. Patterson, 

 (observing that “to satisfy
the reasonableness prong . . . , [a defendant] 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”).

a.       Objection to the expert’s qualification

{42} A “trial judge has wide discretion to determine whether a witness is qualified to
give testimony as an expert, and no set criteria can be laid down to test [such]
qualifications.” State v. McDonald, 

, 

, 

(internal quotation marks and citations omitted). Appellate courts review the qualification
of an expert for an abuse of discretion. See 

 “If there are reasons both for and against
a court’s decision, there is no abuse of discretion.” State v. Smith, 

, 

.

{43} Defendant argues that blood spatter analysis is more subjective than scientific
but that the evidence in this case was “purported to be based in science by an
appropriate expert” who nevertheless had limited experience as an expert in this area.
Defendant calls these “clear reasons” why defense counsel should have more
vehemently opposed qualification of this expert and admission of his testimony. This
Court observed in Fry, 

, that because blood spatter analysis
is a field “based on well established scientific principles, and is capable of producing
opinions based on reasonable probability rather than speculation or conjecture,” an
expert may be properly qualified to provide opinion testimony.

{44} The blood spatter analyst 3 testified before the jury, first about his qualifications
and then concerning his opinion on the victim’s position when he was shot: whether he
was “standing up” and “where he fell” and “where [his] knees [we]re in relation to where
his head [wa]s.” The “jury was free to weigh every aspect of the [analyst’s] qualifications
and was free to disregard [his opinion] entirely.” McDonald, 

. A
“‘perceived deficiency’” in education or experience “‘is relevant to the weight [of the
evidence] and not to [its] admissibility.’” 

 (quoting State v. Hernandez, 1993-NMSC-
007, ¶ 61, 

, 

).


3
 We note that a different district court judge had previously qualified this blood spatter analyst in a companion
case.
{45} Because Defendant’s argument appears to go to the weight of the evidence and
not to its admissibility, and because Defendant did not provide additional evidence to
contradict the blood spatter testimony, a reasonably competent attorney could have
decided that further objection was unwarranted.

b.     Objection to the authentication of the voice recording

{46} Defendant argues that defense counsel should have objected to and insisted on
authentication of the voice recording pursuant to Rule 11-901(A) NMRA, which requires
“evidence sufficient to support a finding that the [recording] is what the [State] claims it
is.” Defendant thus implies that the authentication did not meet “the low threshold for
admissibility established by Rule 11-901(B)(5).” State v. Loza, 

,

 (observing that State v. Padilla, 

, ¶ 5, 

, 

, favorably discussed a federal case “in which the testifying witness heard the
appellant’s voice on only two other occasions”).

{47} Officer Bryan Burns testified that he collected a “mini-recorder” from Hoss when
Hoss was arrested at A1 Best Bonds in Carlsbad. Officer Burns was familiar with both
Hoss and Defendant and recognized their voices in the conversation on Hoss’s
recorder.

{48} Defendant also complains that the authentication was insufficient to establish that
the recording was “a true and complete recording of the conversation.” Rule 11-901
does not require proof that a recorded conversation is “true and complete.” It appears
that Defendant’s argument conflates Rule 11-901 with Rule 11-106 NMRA (permitting a
party to introduce “any other part [of a recorded statement introduced by an opposing
party] that in fairness ought to be considered at the same time”).

{49} Considering the applicable authentication threshold and the fact that at least part
of Defendant’s argument appears to go to the weight of the evidence and not its
admissibility, a reasonably competent attorney could have decided that further objection
was unwarranted.

c.     Failure to move for suppression of Defendant’s statement to the police

{50} Defendant argues that defense counsel should have requested “a hearing to
determine the voluntariness of [his] interrogation [by] police officers before it was
admitted into evidence and played for the jury.” Defendant asserts that he had been
using methamphetamine continuously for days when police interrogated him and
therefore that it was unreasonable for defense counsel to waive his right to require proof
of voluntariness by failing to raise the issue. See State v. Swavola, 

, ¶
18, 

, 

 (acknowledging that the prosecution has the burden
of proof if voluntariness is contested and that failure of defense counsel to move for
suppression “forfeited [the defendant’s] right to have the State prove voluntariness”).
{51} Although a waiver analysis may consider intoxication, the “state of intoxication
does not automatically render a statement involuntary.” United States v. Smith, 

 (10th Cir. 2010) (internal quotation marks and citation omitted); accord
State v. Young, 

, ¶ 14, 

, 

 (“[V]oluntary
intoxication is relevant to determining whether a waiver was knowing and intelligent.”);
see also United States v. Burson, 

 (10th Cir. 2008) (observing that
“[t]he mere fact of drug or alcohol use will not suffice” to negate a knowing and
intelligent waiver).

{52} On appeal, Defendant does not point to any evidence in the record—such as in
the video recording of his interview by the police—to demonstrate that he was
substantially impaired, or extremely intoxicated to the point that he could not knowingly
and intelligently waive his rights. See Burson, 

 (“The defendant must
produce evidence showing his condition was such that it rose to the level of substantial
impairment.”); see also State v. Bramlett, 

, ¶¶ 20-22, 

, 

 (holding that “extreme intoxication” was not consistent with a valid waiver),
overruled on other grounds by Armijo v. State ex rel. Transp. Dep’t, 

, ¶
8, 

, 

. In addition, like the defendant in Swavola, Defendant
ignores the possible benefit to the defense of his recorded statements, such as those
expressing remorse or explaining that the killing was accidental. See 

,
¶ 19.

{53} A reasonably competent attorney could have decided that moving the district
court to suppress the evidence was ill-advised.

4.      Failure to further develop the intoxication defense

{54} Defendant did not deny shooting the victim but argued that he did so “based o[n]
duress and/or intoxication.” Defendant states that the failure to further develop the
intoxication defense “clearly prejudiced” him. Defendant testified about his
methamphetamine use and the effects methamphetamine had on him personally.
Appellate defense counsel appears to hypothesize “addiction as a defense” by
identifying the postulation with the “voluntary intoxication defense,” based in part on a
law review article by Meredith Cusick. 4

{55} Defendant also suggests that not requesting an intoxication jury instruction
negating the knowledge element for breaking and entering was unreasonable, citing
State v. Contreras, 

, 

, 

. Contreras

4
 “Methamphetamine addiction results in catastrophic brain damage to critical neural circuits and structures. . . .
This may suggest that addiction, particularly to methamphetamine, should be handled in a different manner than
intoxication in the mens rea analysis.” Meredith Cusick, Note, Mens Rea and Methamphetamine: High Time for a
Modern Doctrine Acknowledging the Neuroscience of Addiction, 

, 2434 (2017). Ms. Cusick
argues for development of a new “doctrine of addiction,” separate from a voluntary intoxication defense, based in
part on distinguishing between “acute intoxication and addiction.” See id. at 2434-49. An argument for a new
doctrine does not support a claim for ineffective assistance of counsel due to the inability to develop a defense
based on a proposed doctrine.
requires including a knowledge element in the jury instruction for breaking and entering.
See id. But Defendant admitted at trial that he knew he did not have permission to go
into the victim’s house and that they entered after Hoss kicked in the door.

{56} Defendant cites Cusick, supra, and argues that “[a]n expert would have been
able to explain the physiological impact of meth intoxication and, more specifically,
could have countered the State’s argument that because [Defendant] was able to drive,
walk, and talk, he must have been able to form the intent necessary for the predicate
felonies.” Defendant’s argument is tantamount to an argument that the failure to call an
expert witness was per se ineffective assistance of counsel, but “this 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, 

 (citing State v. Vigil, 

, ¶¶ 17-19, 

, 

(acknowledging that an expert “may be necessary to dispel common misconceptions”
that a jury might harbor but reasoning that the decision to use the expert in that case
could have been strategic, toward promoting an alternative theory of defense), and
State v. Chamberlain, 

, ¶¶ 45-46, 

, 

(concluding that the failure to hire an expert was a matter of trial strategy)).

{57} An expert may be able to dispel common juror misconceptions and to help a jury
understand the physiological and cognitive effects of methamphetamine, including how
it relates to the ability to form the requisite intent. However, defense counsel may have
determined that using an expert to argue for the application of a novel and
unprecedented legal theory, an “addiction defense,” was inconsistent with the voluntary
intoxication defense. Defense counsel may have also determined that other pragmatic
problems discouraged the hiring of an expert. See Cusick, supra at 2441-44 (discussing
concerns about confusion in presenting neuroscience evidence to juries, noting the lack
of consensus on whether and how such evidence should be used in a determination of
culpability).

{58} Based on the above, it appears possible that a reasonably competent attorney
could have decided that trying to obtain expert testimony was unwarranted or unwise in
this case. Defendant’s argument that his trial counsel failed to further develop an
intoxication defense is insufficient to support a claim for ineffective assistance of
counsel.

C.    The District Court’s Refusal to Instruct the Jury on the Lesser Included
      Offense of Voluntary Manslaughter

{59} Defendant argues that it was reversible error for the district court to refuse to
instruct the jury on the lesser included offense of voluntary manslaughter. Defendant
requested a jury instruction on voluntary manslaughter, based on the theory that he was
under duress from one of his accomplices and that the accomplice was the source of
the provocation that caused him to kill the victim. The general defense theory was that
Defendant was a weak-willed drug addict—manipulated by Hoss through implied threat,
based on the reputation of the manipulator, and by intimidation.
{60} “The propriety of denying a jury instruction is a mixed question of law and fact
that we review de novo.” State v. Gaines, 

, 

, 

.

{61} “A defendant is entitled to an instruction on a theory of the case where the
evidence supports the theory.” State v. Salazar, 

, 

,

. “It is settled law that the victim [of voluntary manslaughter] must be the
source of the provocation.” State v Munoz, 

, ¶ 12, 

, 

 (citing State v. Manus, 

, ¶ 16, 

, 

,
overruled on other grounds by Sells v. State, 

, ¶¶ 9-10, 

,

). The proper inquiry is whether sufficient evidence was introduced to
support a determination that the “[v]ictim individually provoked [the d]efendant.” State v.
Jim, 

, 

 (citing Manus, 

, ¶ 16). “[T]o
receive a jury instruction on a lesser included offense, there must be evidence that the
lesser offense is the highest degree of crime committed.” Salazar, 

.

{62} Defendant argued below, and on appeal, that the source of the provocation was
his accomplice, not the victim. A third party, such as an accomplice, cannot properly
support a provocation defense under New Mexico law, and thus there was no evidence
of provocation that could reduce the charge of murder to manslaughter. See, e.g., Jim,

. Defendant was not entitled to the requested instruction, and the
district court properly denied his request.

III.   CONCLUSION

{63}   For the foregoing reasons, we affirm Defendant’s convictions.

{64}   IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

JUDITH K. NAKAMURA, Justice

BARBARA J. VIGIL, Justice

MICHAEL E. VIGIL, Justice

C. SHANNON BACON, Justice