State v. Garcia

I attest to the accuracy and

integrity of this document

New Mexico Compilation

Commission, Santa Fe, NM

'00'04- 15:20:37 2011.04.26

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-003

Filing Date: January 12, 2011

Docket No. 30,782

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

JOSE PEDRO GARCIA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY

George P. Eichwald, District Judge

Law Office of Craig C. Kling

Craig Charles Kling

San Diego, CA

for Appellant

Gary K. King, Attorney General

Andrew S. Montgomery, Assistant Attorney General

Santa Fe, NM

for Appellee

OPINION

CHÁVEZ, Justice.

{1} This case involves the conviction of Defendant Jose Pedro Garcia for multiple

charges arising from the Memorial Day 2005 murder of Jeff Armstrong. Defendant attended

a party that day at the apartment of Armstrong’s neighbor, Sarita Duran. According to

eyewitnesses, Defendant went to Armstrong’s apartment to steal marijuana for use at the

party, a struggle ensued, and Garcia shot and killed Armstrong.

I. BACKGROUND

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{2} The jury convicted Defendant of one count of first degree felony murder, contrary

to NMSA 1978, Section 30-2-1(A) (1994); one count of armed robbery, contrary to NMSA

1978, Section 30-16-2 (1973); one count of possession of a firearm or destructive device by

a felon, contrary to NMSA 1978, Section 30-7-16 (2001); and one count of tampering with

evidence, contrary to NMSA 1978, Section 30-22-5 (2003). The district court merged the

armed robbery count into the first degree felony murder count.

{3} In his appeal, Defendant presents six issues. He contends that (1) insufficient

evidence was presented to support the tampering with evidence and felony murder

convictions; (2) the district court improperly rejected Defendant’s motion to proceed pro se;

(3) the district court erred by refusing to sever Defendant’s felon in possession of a firearm

charge; (4) Defendant’s statement to Rio Rancho police was improperly admitted; (5)

defense counsel rendered ineffective assistance; and (6) the district court improperly failed

to vacate Defendant’s armed robbery conviction, the predicate offense for felony murder.

We affirm Defendant’s convictions for felony murder, felon in possession of a firearm, and

tampering with evidence, and hold that (1) sufficient evidence was adduced at trial to support

the felony murder and tampering with evidence convictions; (2) the district court properly

denied Defendant’s belated pro se motion; (3) the district court’s failure to sever the felon

in possession of a firearm count did not prejudice Defendant; (4) Defendant’s statement to

Rio Rancho police was admissible; and (5) defense counsel provided Defendant with

adequate representation at trial. We vacate the armed robbery conviction, holding that the

district court erred by only merging that conviction with the felony murder conviction

without also vacating the armed robbery conviction, as required under New Mexico law.

Because the district court imposed a life sentence on Defendant, we review Defendant’s

appeal directly from the district court, pursuant to Article VI, Section 2 of the New Mexico

Constitution and Rule 12-102(A)(1) NMRA. See State v. Smallwood, 2007-NMSC-005, ¶

6, 141 N.M. 178, 152 P.3d 821 (“[O]ur appellate jurisdiction extends to appeals from district

court judgments imposing a sentence of life imprisonment or death.”).

II. DISCUSSION

A. Sufficient Evidence Was Presented at Trial to Support the Jury’s Felony

Murder and Tampering with Evidence Verdicts.

{4} Defendant contends that the felony murder and tampering with evidence convictions

fail for lack of evidence. Regarding the felony murder count, he argues that the relevant

witness testimony at trial was not credible and cannot support the conviction. As for the

tampering count, Defendant challenges the conviction on the basis that his repeated attempts

to have others conceal evidence (the murder weapon) failed, and therefore only a charge of

“attempted” tampering with evidence is viable.

{5} Because an appellate tribunal does not enjoy the same exposure to the evidence and

witnesses as the jury at trial, our review for sufficiency of the evidence is deferential to the

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jury’s findings. See State ex rel. Moreno v. Floyd, 85 N.M. 699, 703, 516 P.2d 670, 674

(1973). We review “whether substantial evidence of either a direct or circumstantial nature

exists to support a verdict of guilt beyond a reasonable doubt with respect to every element

essential to a conviction.” State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515

(internal quotation marks and citation omitted). Evidence is viewed “in the light most

favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts

in the evidence in favor of the verdict.” Id. (internal quotation marks and citation omitted).

In particular, New Mexico appellate courts will not invade the jury’s province as fact-finder

by “second-guess[ing] the jury’s decision concerning the credibility of witnesses,

reweigh[ing] the evidence, or substitut[ing] its judgment for that of the jury.” State v.

Lucero, 118 N.M. 696, 699, 884 P.2d 1175, 1178 (Ct. App. 1994). So long as “‘a rational

jury could have found beyond a reasonable doubt the essential facts required for a

conviction,’” we will not upset a jury’s conclusions. Duran, 2006-NMSC-035, ¶ 5 (quoting

State v. Garcia, 114 N.M. 269, 274, 837 P.2d 862, 867 (1992)).

i. The non-conflicting testimony of multiple witnesses provided the jury

with a reasonable basis to find Defendant guilty of felony murder.

{6} Defendant urges this Court to reject the eyewitness testimony pertinent to the felony

murder charge as “inherently unbelievable.” Defendant contends that each witness harbored

reasons to provide false or misleading testimony, and therefore the testimony fails to “meet

a minimal standard of truthfulness.” Defendant argues that New Mexico law permits this

Court to override a jury’s witness credibility determinations when multiple witnesses “fail

to meet any test of truth.” See State v. Armijo, 35 N.M. 533, 543, 2 P.2d 1075, 1080 (1931)

(holding that the inherently improbable, uncorroborated testimony of an accomplice was

insufficient to support a conspiracy conviction). We disagree and hold that the jury was

presented with substantial evidence of the “essential facts required for [the felony murder]

conviction.” Duran, 2006-NMSC-035, ¶ 5 (internal quotation marks and citation omitted).

{7} To prove felony murder, the State must establish that a predicate, inherently

dangerous felony was committed; the defendant caused the death while committing the

predicate felony; and the defendant either intended to kill the victim or knew his actions

“created a strong probability of death or great bodily harm.” UJI 14-202 NMRA. At

Defendant’s trial, the jury was instructed on the felony murder count as follows:

1. The defendant, Jose P. Garcia, committed the crime of Armed

Robbery;

2. Jose P. Garcia caused the death of Jeff Armstrong during the

commission of or the attempt to commit armed robbery;

3. Jose P. Garcia intended to kill or knew that his acts created a strong

probability of death or great bodily harm;

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4. This happened in Sandoval County, New Mexico on or about the 30th

day of May, 2005.

{8} At trial, a great deal of direct and circumstantial evidence was presented to support

the felony murder charge. Despite Defendant’s claims to the contrary, numerous witnesses

testified that Defendant was present at the party. Multiple witnesses also testified that

Defendant visited Armstrong’s apartment on at least two occasions while the party was

underway. The party’s host, Sarita Duran, testified that she and Defendant made an initial

visit to Armstrong’s where the two successfully obtained a small amount of marijuana.

When that supply of marijuana was exhausted, Henry Yerena and Louis Ramirez who were

at the party, testified that Defendant gestured to a screwdriver tucked in his waistband, stated

that he was going to “jack the fool,” and returned to Armstrong’s apartment.

{9} Edgardo Collins also went to Armstrong’s apartment to obtain marijuana. Duran

testified that the two men went to Armstrong’s apartment together, while Collins contended

that he followed Defendant there after Defendant left the party. Upon entering the

apartment, Collins testified that he saw Defendant punching Armstrong and holding the

screwdriver against Armstrong’s neck. Collins watched as Armstrong attempted to reach

for a gun concealed under the cushions of the couch where he was seated, but Defendant

retrieved the gun first. Collins testified that Defendant put the gun to Armstrong’s head and

pulled the trigger. When the weapon failed to fire, Defendant pulled the trigger a second

time and shot and killed Armstrong.

{10} After the shot was fired, Duran, Yerena, and Collins testified that Defendant and

Collins ran back into Duran’s apartment. Duran and Yerena testified that Defendant entered

the apartment with the gun in his hand. According to testimony from Duran and Collins,

Defendant twice asked Duran to hide the gun, but she refused. Louis Ramirez testified that

later, while at the home of Gabriel Moreno, Defendant was showing off the gun and stated

that he had taken the gun from Armstrong and “blasted him.” Defendant then tried

unsuccessfully to sell the gun to Ramirez and separately to Moreno.

{11} Sufficient evidence was presented to permit a reasonable jury to find all the elements

of a felony murder conviction beyond a reasonable doubt. Multiple witnesses provided

testimony regarding events before, during, and after the Armstrong murder that supported

the jury’s verdicts. This testimony was only controverted by Defendant’s statements to

police taken soon after Armstrong’s murder. Collins provided direct evidence of the murder

and armed robbery. While the defense attempted to establish Collins’ motive to lie, the

testimony of other witnesses supported and was consistent with his account of events. Most

compelling in this respect was the testimony proffered by multiple witnesses that (1)

Defendant intended to rob the victim; (2) Defendant possessed the gun immediately after the

shooting; and (3) Defendant repeatedly endeavored to get rid of the gun after Armstrong’s

death. The testimony adduced at trial stands in marked contrast to Armijo, the case relied

upon by the defense, where this Court reversed a conspiracy conviction based upon the

inherently improbable, uncorroborated testimony of an accomplice who earlier had declared

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that the defendant was innocent. 35 N.M. at 542, 2 P.2d at 1080 (opinion of court on

rehearing). Accordingly, it was well within the jury’s fact-finding function to conclude that

the testimony adduced at trial was both credible and sufficient, supporting the finding that

Defendant committed the predicate offense of armed robbery and then intentionally killed

Armstrong during the course of the robbery. As a result, we leave the jury’s determinations

of credibility intact and decline to grant Defendant’s request to reverse his felony murder

conviction due to insufficient evidence.

ii. Defendant’s overt acts to conceal evidence constitute sufficient evidence

to support the tampering with evidence conviction.

{12} Defendant also argues that there was insufficient evidence adduced at trial to support

his tampering with evidence conviction. The tampering with evidence charge arose from

Defendant’s efforts to conceal the weapon used in the Armstrong homicide. Defendant

contends that because his multiple efforts to conceal the weapon failed and the weapon was

never recovered, the State cannot meet its burden of proof. However, we construe

Defendant’s extensive efforts to rid himself of the murder weapon as sufficient evidence to

support the jury’s findings.

{13} Under New Mexico law, the elements of tampering with evidence are (1)

“destroying, changing, hiding, placing or fabricating any physical evidence,” and (2) “with

intent to prevent the apprehension, prosecution or conviction of any person or to throw

suspicion of the commission of a crime upon another.” Section 30-22-5(A). “When there

is no other evidence of the specific intent . . . to disrupt the police investigation, intent is

often inferred from an overt act of the defendant.” Duran, 2006-NMSC-035, ¶ 14. Where

there is no direct evidence of an intent to undermine law enforcement activities, and no overt

act permitting an inference of such intent, “the evidence cannot support a tampering

conviction.” Compare State v. Silva, 2008-NMSC-051, ¶¶ 18-19, 144 N.M. 815, 192 P.3d

1192 (holding that the State failed to meet its burden where it “effectively asked the jury to

speculate that an overt act of . . . hiding [the murder weapon] had taken place, based solely

on the fact that such evidence was never found” (alteration in original) (internal quotation

marks and citation omitted)), with State v. Arellano, 91 N.M. 195, 197, 572 P.2d 223, 225

(Ct. App. 1977) (affirming tampering conviction where the defendant committed the overt

act of giving his brother a loaded gun used in a homicide and instructed brother to “‘hold it

for him’”). Importantly, when a tampering conviction is based on concealing evidence,

conviction is not predicated on actual recovery of the evidence. See State v. Johnson, 2004-

NMSC-029, ¶¶ 3, 54, 136 N.M. 348, 98 P.3d 998.

{14} In this case, Defendant perpetrated a sequence of overt acts in an effort to both rid

himself of the firearm and conceal it from the police, permitting a rational jury to find both

elements of Section 30-22-5(A) beyond a reasonable doubt. The trial transcript is littered

with evidence of multiple acts committed by Defendant in an effort to thwart law

enforcement efforts by concealing or transferring possession of the gun. As we have already

discussed, these acts included two attempts to sell the gun to acquaintances and two attempts

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to give the gun to another acquaintance, urging that it be hidden. Ultimately, law

enforcement was unable to recover the gun. The jury could reasonably infer from these facts

that Defendant ultimately achieved his objective of disposing of the gun. His multiple overt

acts made clear his intent to thwart law enforcement by jettisoning key evidence.

Defendant’s conviction for tampering with evidence is affirmed.

B. Failure to Sever the Felon-in-Possession Charge Did Not Actually Prejudice

Defendant and Therefore Does Not Constitute an Abuse of Discretion.

{15} Defendant asserts that the trial judge improperly denied his motion to sever the felon

in possession of a firearm charge from the other offenses. Defendant contends that leaving

the charge joined to these proceedings enabled otherwise inadmissible evidence of his prior

felonies (battery and aggravated assault on a police officer) to be admitted, thereby

prejudicing the jury against him.

{16} In New Mexico, joinder of similar offenses is required under Rule 5-203(A) NMRA.

See State v. Gallegos, 2007-NMSC-007, ¶ 10, 141 N.M. 185, 152 P.3d 828 (“Rule 5-203(A)

is not a discretionary or permissive rule; it demands that the State join certain charges.”).

However, in the event the trial judge determines that the joinder of offenses will result in

prejudice to either party, the offenses may be severed pursuant to a party’s motion. Rule 5-

203(C). The decision to grant a severance motion lies within the trial judge’s discretion and

will not be overturned on appeal unless the joinder of offenses results in actual prejudice

against the moving party. See State v. Dominguez, 2007-NMSC-060, ¶ 9, 142 N.M. 811, 171

P.3d 750; see also Gallegos, 2007-NMSC-007, ¶ 18 (“Even when the trial court abuses its

discretion in failing to sever charges, appellate courts will not reverse unless the error

actually prejudiced the defendant.”); State v. Ramming, 106 N.M. 42, 46, 738 P.2d 914, 919

(Ct. App. 1987) (“[T]he standard of review applicable to a severance issue is exceedingly

narrow.”). Defendant bears the burden of establishing that he was actually prejudiced by a

failure to sever. State v. Duffy, 1998-NMSC-014, ¶ 42, 126 N.M. 132, 967 P.2d 807.

{17} In this case, Defendant and the State agree that the evidence of the prior felony

conviction would have been inadmissible in a separate trial, and therefore the felon in

possession charge should have been severed. As this Court has held, “one test for abuse of

discretion is whether prejudicial testimony, inadmissible in a separate trial, is admitted in a

joint trial.” Dominguez, 2007-NMSC-060, ¶ 10 (internal quotation marks and citation

omitted). The potential for prejudice is especially ripe where a defendant faces the prospect

of admission of evidence of a past felony. Id. ¶ 10. As a result, we have cautioned the

district courts that “[a]bsent an affirmative finding of cross-admissibility, the better practice

is for the trial court to sever a felon in possession charge to avoid both error and the

‘appreciable risk’ of reversal on appeal.” Id. ¶ 13.

{18} In Dominguez, we explained that putting the facts of a prior felony before the jury

would put “pressure on the accused to testify so as to explain his past . . . thereby

compromising his constitutional right to silence.” Id. ¶ 11. We concluded that the

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“Defendant’s prior unrelated crime most certainly would not have been admissible in a

separate trial of Defendant’s remaining charges.” Id. Thus, severance -- or some other

remedy amenable to the defendant -- was called for to safely wall off the facts of the

inadmissible past felony act from the jury’s consideration of the remaining charges. As the

parties in this proceeding agree, the “better practice” of severing the felon in possession

charge would have addressed the very concerns set forth in Dominguez.

{19} However, we also noted that any error by the trial judge is harmless if it did not

actually prejudice the defendant. Id. ¶ 13. In Gallegos, we set forth a variety of criteria to

measure whether a defendant has been prejudiced by the joinder of offenses. 2007-NMSC-

007, ¶ 41.

[F]actors tending to show that a defendant was not prejudiced . . . include:

(1) dissimilar offenses such that a jury would not confuse them; (2) the

defendant being acquitted of some charges; and (3) proper jury instructions

that adequately make clear to the jury that it must not consider evidence

inadmissible to a particular count when coming to a verdict on that count.

Id. (citations and footnote omitted). Underlying these considerations is the concern that

joinder will result in the jury “weigh[ing] the evidence against the defendant cumulatively,

rather than independently” for each offense. State v. Boscarino, 529 A.2d 1260, 1265

(Conn. 1987). This concern is especially relevant where trials are “unusually long and

complex,” the prosecution “intertwin[es] the offenses” in making its case, the offenses are

“inflammatory in nature,” the defendant is convicted on all counts, the offenses are factually

similar, or where a conviction occurs despite sparse evidence. Gallegos, 2007-NMSC-007,

¶ 41.

{20} Defendant, who carries the burden to establish prejudice, does not contend that he

was actually prejudiced in this case, stating that “the jury’s knowledge of [his] past violent

conviction could have influenced the jury’s decision to convict.” We agree and conclude

that because of the overwhelming weight of the uncontroverted evidence supporting guilt

in this case, the efforts by the trial judge to mitigate the effect of the disputed evidence, and

the dissimilar nature of the charged offenses, no prejudice resulted from the failure to sever.

While Defendant correctly points out that the judgment and sentence order from Defendant’s

prior felonies was entered into evidence during trial, the State never identified the names or

any details of the prior offenses and only generically mentioned the fact of the prior offenses

as an element of the felon in possession charge, in no way “intertwining” the past felony

evidence with the tampering with evidence, felony murder, and armed robbery charges. See

Gallegos, 2007-NMSC-007, ¶ 41. Even if the jury learned the identity or nature of

Defendant’s prior felonies from the judgment and sentence order, the State avoided any other

mention of the prior crimes, instead building its case upon an array of witness and police

testimony. There was substantial evidence, aside from the reference to the prior felonies,

to support Defendant’s convictions for felony murder, armed robbery, and tampering with

evidence.

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{21} In this case, the trial judge took a further step to mitigate any impact of the prior

felony evidence by instructing the jury to consider each charged offense separately. See

Gallegos, 2007-NMSC-007, ¶ 41. Unlike Gallegos, where the defendant was prejudiced by

the failure to sever multiple similar sex-crime counts stemming from a series of sexual

encounters with minors, in these proceedings Defendant was charged with four distinct

offenses arising from a singular sequence of events. Id. ¶¶ 4, 5. Therefore, the trial judge’s

instruction to consider each offense separately adequately addressed any concern that the

jury might apply the evidence of prior felonies beyond the felon in possession charge. Due

to these myriad factors, there is no “appreciable risk that the jury convicted for illegitimate

reasons.” See Duffy, 1998-NMSC-014, ¶ 42 (internal quotation marks and citation omitted).

The failure to sever did not result in any prejudice to Defendant and the district court’s

decision not to sever constitutes harmless error.

{22} Defendant contends that actual prejudice should be presumed because the judgment

and sentence order from the prior felonies was admitted for the “jury’s continued review.”

Our precedent has not supported a bright-line standard. Instead, we have required proof that

the failure to sever actually prejudiced the defendant. See Gallegos, 2007-NMSC-007, ¶¶

37-38. Nevertheless, we recognize the increased risk of prejudice when one of the charges

involves a felon in possession charge. Although the district court in this case was able to

avoid any actual prejudice to Defendant, the risk of prejudice is too great for us to continue

to permit our equivocal cautionary language in Dominguez to survive. Accordingly, we

modify Dominguez to require a trial judge to sever or bifurcate the felon in possession charge

when the trial judge determines that prior felony evidence is not cross-admissible. The trial

judge may exercise his or her discretion only as to whether to sever or bifurcate, considering

the competing advantages and disadvantages of the two alternatives. This approach affords

trial judges clearer guidance than we provided in Dominguez and eliminates any risk of

actual prejudice that almost always arises in the admission of prior felony convictions that

are not cross-admissible.

C. The Trial Judge Properly Exercised His Broad Discretion in Denying

Defendant’s Motion to Proceed Pro Se Mid-Trial.

{23} Defendant contends that his Sixth Amendment right to represent himself pro se was

improperly denied at trial because the district court failed to assess whether Defendant

knowingly and intelligently waived his right to counsel. Defendant made his pro se motion

on the third day of a four-day trial.

{24} A defendant’s constitutional right to undertake pro se representation is well-

established. N.M. Const. art. II, § 14 (“In all criminal prosecutions, the accused shall have

the right to appear and defend himself in person.”); Faretta v. California, 422 U.S. 806, 832

(1975) (“The Framers selected in the Sixth Amendment a form of words that necessarily

implies the right of self-representation. That conclusion is supported by centuries of

consistent history.”); State v. Pino, 1997-NMCA-001, ¶ 8, 122 N.M. 789, 932 P.2d 13 (“The

Sixth Amendment right to counsel includes, as a corollary, the right not to have counsel.”).

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In Faretta, a landmark case on the law of pro se representation, the United States Supreme

Court clarified that the Sixth Amendment right to assistance of counsel includes the corollary

right to reject the imposition of counsel in state criminal proceedings. 422 U.S. at 834 (“To

force a lawyer on a defendant can only lead him to believe that the law contrives against

him.”). As the Faretta Court expressed, it is the defendant who “will bear the personal

consequences of a conviction,” and thus should be allowed the freedom to determine the

fundamental course of his or her defense. Id.

{25} This right is not absolute, however, and may not be invoked inter alia “to cause delay

or thwart the orderly and fair administration of justice.” State v. Lewis, 104 N.M. 218, 221,

719 P.2d 445, 448 (Ct. App. 1986). Three requirements must be satisfied for a defendant to

proceed pro se. First, the defendant must “clearly and unequivocally” assert his intention

to represent himself. State v. Hamilton, 104 N.M. 614, 617, 725 P.2d 590, 593 (Ct. App.

1986) (internal quotation marks omitted) (quoting Lewis, 104 N.M. at 220, 719 P.2d at 447).

Second, the defendant must make this assertion in a timely fashion. See Lewis, 104 N.M.

at 221, 719 P.2d at 448; see also Martinez v. Court of Appeal of California, Fourth Appellate

Dist., 528 U.S. 152, 161-62 (2000) (“The defendant must ‘voluntarily and intelligently’ elect

to conduct his own defense, and most courts require him to do so in a timely manner.”

(emphasis added) (internal quotation marks and citations omitted)); United States v. Nunez,

877 F.2d 1475, 1478-79 (10th Cir. 1989) (holding that the third day of trial was too late to

invoke the right to self-representation). Third, the defendant must “knowingly and

intelligently” relinquish the benefits of representation by counsel. Lewis, 104 N.M. at 220,

719 P.2d at 447 (citing Faretta, 422 U.S. at 835 (internal quotation marks and citation

omitted)).

{26} A defendant’s constitutional privilege to proceed pro se is sharply curtailed when it

is not sought in a timely fashion. If it is requested in advance of trial, a defendant who

makes the request “clearly and unequivocally” and “knowingly and intelligently” is

presumptively entitled to the right. Lewis, 104 N.M. at 220, 221, 719 P.2d at 447, 448

(internal quotation marks and citation omitted); see also United States v. Mayes, 917 F.2d

457, 462 (10th Cir. 1990) (“[T]he right to self-representation is unqualified . . . if demanded

before trial.” (internal quotation marks and citation omitted)). However, once the jury has

been selected, “‘it becomes discretionary with the trial court whether to allow the defendant

to proceed pro se.’” Mayes, 917 F.2d at 462 (quoting United States v. Gillis, 773 F.2d 549,

559 n.14 (4th Cir. 1985)). “[T]he trial court is recognized as having broad discretion to

reject as untimely a request made during the course of the trial.” 3 Wayne R. LaFave et al.,

Criminal Procedure § 11.5(d), at 753-54 (3d ed. 2007). Thus, we review a belated pro se

request, made after the start of trial, for abuse of the district court’s discretion. United States

v. Beers, 189 F.3d 1297, 1303 (10th Cir. 1999) (“When [a] defendant does not assert this

right before trial, we review the district court’s decision whether to allow defendant to

proceed pro se for an abuse of discretion.”).

{27} The district court may exercise its discretion by balancing whatever prejudice is

alleged by the defendant against considerations of “‘disruption of the proceedings,

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inconvenience and delay, and possible confusion of the jury.’” Mayes, 917 F.2d at 462

(quoting Fulford v. Maggio, 692 F.2d 354, 362 (5th Cir. 1982)); see also Lewis, 104 N.M.

at 221, 719 P.2d at 448. “Other considerations include ‘the reason for the request [and] the

quality of the counsel representing the party.’” Mayes, 917 F.2d at 462 (quoting Sapienza

v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976)).

{28} In these proceedings, Defendant did not make his pro se request until three days into

the trial, indisputably invoking timeliness concerns and investing substantial discretion in

the trial judge. When Defendant made his request to proceed pro se, Judge Eichwald

afforded him an ample opportunity to be heard. Defendant addressed the court three times,

questioning his counsels’ tactical decisions and thoroughness. Defendant also asserted that

he understood the consequences of self-representation. The State objected to his pro se

motion, contending that a mid-trial pro se designation would invite a mistrial, Defendant had

not displayed adequate knowledge to function effectively in a pro se capacity, and

Defendant’s existing counsel had done a “good job.”

{29} After the parties’ arguments, the trial judge rightly examined the impact of the timing

of Defendant’s motion, focusing on the competence of his present counsel. After

recognizing Defendant’s Sixth Amendment right to self-representation, Judge Eichwald

asserted that “the test [to invoke the pro se right] is reasonably competent counsel.” While

this is not a precise articulation of the law, it still presents an appropriate standard. As the

Tenth Circuit set forth in Mayes, a trial judge may consider inter alia counsel’s competence

when assessing a pro se motion proffered by a defendant mid-trial. 917 F.3d at 462. It is

well settled that a trial judge enjoys “broad discretion” when a defendant makes an eleventh-

hour pro se request. 3 LaFave, supra § 11.5(d), at 753-54. Certainly, where the defendant

is not prejudiced by the continuation of existing counsel, and the state has highlighted

concerns that the proceedings will be disrupted, the judge’s sound exercise of discretion in

balancing these equities is not to be second-guessed.

{30} Defendant asserts that Judge Eichwald erred by failing to assess whether Defendant

requested the pro se designation knowingly and intelligently. We disagree. Faretta

provided three separate, independent bases for rejecting a “clear and unequivocal” pro se

request: (1) timeliness; (2) the defendant’s misconduct; or (3) the defendant’s inability to

waive the right to counsel knowingly and intelligently. Faretta, 422 U.S. at 807, 834 n.46,

835-36; see 3 LaFave, supra § 11.5(d), at 753-56. Thus, a trial judge is at liberty to reject

a pro se motion on any of these independent grounds. Judge Eichwald’s decision to base his

decision solely on factors related to timeliness was squarely within his discretion and

provided Defendant all rights due him under the Sixth Amendment. Therefore, Defendant’s

pro se claim fails.

D. Because Defendant Bases His Claim for Exclusion of His Statement to Rio

Rancho Police on a Law Not Then in Effect, the Claim is Baseless.

{31} Defendant argues that a statement he made to the Rio Rancho police the day after the

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Armstrong homicide should have been suppressed pursuant to NMSA 1978, Section 29-1-16

(2005), which requires state or local law enforcement officers to electronically record

custodial interrogations when reasonably able to do so. However, Section 29-1-16 did not

take effect until January 1, 2006, while the relevant interview of Defendant took place on

May 31, 2005. 2005 N.M. Laws, ch. 252, § 3. Even though the law passed the Legislature

during its 2005 session, the Legislature explicitly directed that the statute take effect

prospectively on January 1, 2006. Id. See generally State v. Perea, 2001-NMSC-026, ¶ 4,

130 N.M. 732, 31 P.3d 1006 (“Generally, a statute is applied prospectively unless the

legislature has made clear its intention to apply it retroactively.”). A law cannot be violated

when it is not yet in effect. Thus, Defendant’s claim under Section 29-1-16 fails.

E. Because Defense Counsel Employed Legitimate Tactics and Strategy, Defense

Counsel Did Not Render Ineffective Assistance of Counsel on Defendant’s

Behalf.

{32} Defendant claims that he received ineffective counsel at trial because his counsel

failed to request a voluntary intoxication jury instruction per UJI 14-5111 NMRA.

Defendant argues that evidence of his consumption of alcohol and marijuana at Sarita

Duran’s party warranted the instruction, and had it been given, the jury could have used the

instruction to negate the mens rea required for the felony murder predicate offense of armed

robbery.

{33} Under the Sixth Amendment, criminal defendants are entitled to “reasonably

effective” assistance of counsel. State v. Schoonmaker, 2008-NMSC-010, ¶ 29, 143 N.M.

373, 176 P.3d 1105; see Strickland v. Washington, 466 U.S. 668, 687 (1984). To state a

claim for ineffective assistance of counsel, a defendant must establish that (1) counsel’s

performance was deficient, and (2) such deficiency resulted in prejudice against the

defendant. State v. Gonzales, 2007-NMSC-059, ¶ 14, 143 N.M. 25, 172 P.3d 162. However,

there is a strong presumption that trial counsel’s conduct “‘falls within the wide range of

reasonable professional assistance.’” State v. Hunter, 2006-NMSC-043, ¶ 13, 140 N.M. 406,

143 P.3d 168 (quoting Strickland, 466 U.S. at 689). An appellate court will not second-

guess counsel’s strategic judgment unless the conduct does not conform with “an objective

standard of reasonableness.” State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146

P.3d 289 (internal quotation marks and citation omitted). Thus, any “sound” trial tactic or

strategy withstands review. See Hunter, 2006-NMSC-043, ¶ 13 (stating that defendant must

overcome presumption that the challenged action might be considered sound trial strategy).

We review claims of ineffective assistance of counsel de novo. Duncan v. Kerby, 115 N.M.

344, 347-48, 851 P.2d 466, 469-70 (1993).

{34} In these proceedings, we conclude that trial counsels’ performance was not deficient

and we need not reach the prejudice prong of the inquiry. We reject Defendant’s ineffective

assistance claim on two bases. First, Defendant was not entitled to a voluntary intoxication

claim, and second, the decision not to seek a voluntary intoxication was effective trial

strategy, well within the parameters of sound representation.

11

{35} A finding of voluntary intoxication provides a defense to specific intent crimes where

“the intoxication is to such a degree as would negate the possibility of the necessary intent.”

State v. Lovato, 110 N.M. 146, 147, 793 P.2d 276, 277 (Ct. App. 1990). In order to receive

a voluntary intoxication instruction, there must be evidence supporting the conclusion that

the defendant was actually intoxicated. See State v. Brown, 1996-NMSC-073, ¶ 34, 122

N.M. 724, 931 P.2d 69; see also State v. Hernandez, 2003-NMCA-131, ¶¶ 20-22, 134 N.M.

510, 79 P.3d 1118. Merely demonstrating that a defendant consumed alcohol or other

intoxicants is inadequate. Compare Hernandez, 2003-NMCA-131, ¶ 21 (holding that the

defendant was not entitled to an instruction where “[d]efendant presented evidence that he

had consumed alcohol . . . [but] presented no evidence . . . that he was intoxicated to any

degree, let alone to the point that it affected his ability to form the necessary mental state for

a specific-intent crime”), with State v. Privett, 104 N.M. 79, 81-82, 717 P.2d 55, 57-58

(1986) (holding that the defendant was entitled to an instruction where evidence was

presented at trial that the defendant “had a strong odor of alcohol on his breath and appeared

‘strongly intoxicated,’” a blood test done on the defendant showed a blood alcohol content

of 0.18%, and witnesses testified that the defendant was drunk).

{36} In this case, Defendant provided no evidence of his voluntary intoxication. While

there was testimony to support that Defendant consumed alcohol, and some indirect

testimony suggesting that Defendant smoked marijuana, no witnesses testified that

Defendant appeared intoxicated. Because there was no evidence establishing Defendant’s

intoxication, there was no basis for counsel to seek a voluntary intoxication instruction. See

Hernandez, 2003-NMCA-131, ¶¶ 21, 22. Defense counsels’ strategic decision was

objectively reasonable, and therefore does not support a claim of ineffective assistance of

counsel.

{37} Notwithstanding the lack of an evidentiary basis for a voluntary intoxication

instruction, the decision not to seek such an instruction was a legitimate strategy well within

the “wide range of reasonable professional assistance.” Hunter, 2006-NMSC-043, ¶ 13

(internal quotation marks and citation omitted). At trial, Defendant argued that he was not

in attendance at the party at the time of Armstrong’s death, and contended in closing

arguments that his alibi had been verified by police. For counsel to press this alibi-based

argument and simultaneously request a voluntary intoxication instruction could have

undermined Defendant’s credibility with the jury. Counsel made the strategic decision to

pursue a valid theory on Defendant’s behalf, and understandably demurred from posing a

contradictory theory to the jury. See Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.

1998) (“[C]ounsel’s failure to seek an intoxication instruction was reasonable, because the

instruction would have conflicted with his chosen trial strategy.”); see also People v.

LaVearn, 528 N.W.2d 721, 724-25 (Mich. 1995) (per curiam) (rejecting an ineffective

assistance claim where counsel made the strategic decision to forego a voluntary intoxication

defense and instead pursue a mistaken identity theory). In light of the lack of evidence

supporting a voluntary intoxication instruction and counsels’ election between competing

strategies, this Court will not second-guess counsels’ choice of legitimate competing defense

theories. See State v. Crain, 1997-NMCA-101, ¶ 25, 124 N.M. 84, 946 P.2d 1095 (“[W]e

12

regard trial counsel’s choice and presentation of defenses and defense witnesses as falling

within the ambit of trial tactics and strategy.”). For the foregoing reasons, we reject

Defendant’s ineffective assistance of counsel claim.

F. Because the Armed Robbery Conviction Implicates Double Jeopardy Concerns,

We Vacate the Armed Robbery Conviction.

{38} Finally, Defendant contends that his constitutional protection against double jeopardy

was compromised because the district court convicted him of both felony murder and the

underlying predicate felony of armed robbery. See U.S. Const. amend. V; N.M. Const. art.

II, § 15. The bar on double jeopardy serves the obvious purpose of ensuring that a defendant

is not punished twice for the same offense. See State v. Frazier, 2007-NMSC-032, ¶ 13, 142

N.M. 120, 164 P.3d 1. However, it also serves the important purpose of ensuring that a

defendant does not suffer the imposition of multiple convictions for a single offense. See

Schoonmaker, 2008-NMSC-010, ¶ 50. This Court has acknowledged that the peril inherent

in double jeopardy convictions extends beyond the consequences of punishment and

sentencing. See State v. Pierce, 110 N.M. 76, 87, 792 P.2d 408, 419 (1990). Indeed, a

second conviction may expose a defendant to a multitude of harmful “‘collateral’”

consequences, such as impacting parole eligibility, elevating sentencing for future crimes

under repeat offender guidelines, and the “‘societal stigma’” that attaches to any conviction.

Id. (quoting Ball v. United States, 470 U.S. 856, 864-65 (1985)). We review double

jeopardy claims de novo. State v. Quick, 2009-NMSC-015, ¶ 6, 146 N.M. 80, 206 P.3d 985.

{39} This Court has set forth a clear procedure by which a district court must protect a

defendant’s right not to be subjected to double jeopardy. In the event the jury finds a

defendant guilty of two crimes arising from the same offense, simply merging the two

felonies post-conviction is not enough. See Schoonmaker, 2008-NMSC-010, ¶ 50. Rather,

the trial judge must explicitly vacate one of the convictions. Id. (“[T]he district court was

required not only to ‘merge’ Defendant’s convictions . . . but to vacate one of those

alternative convictions; simply sentencing Defendant for only one conviction was not

enough.”) (citing State v. Mercer, 2005-NMCA-023, ¶ 29, 137 N.M. 36, 106 P.3d 1283).

Under Schoonmaker, merging two convictions does not vacate one of them. Thus, the trial

judge must both merge and vacate an underlying offense to avoid the peril of double

jeopardy.

{40} In the instant matter, the State argues that no conviction occurred for the underlying

offense, so double jeopardy concerns are not implicated. We disagree. Under New Mexico

law, a conviction occurs when a defendant is “found guilty by the verdict of the jury [and

that verdict is] accepted and recorded by the court.” NMSA 1978, § 30-1-11 (1963). Thus,

the conviction dovetails with the finding of guilt and it is separate from the subsequent

sentencing process. See Padilla v. State, 90 N.M. 664, 666, 568 P.2d 190, 192 (1977) (“[A]

‘conviction’ refers to a finding of guilt and does not include the imposition of a sentence.”)

(citing State v. Larranaga, 77 N.M. 528, 424 P.2d 804 (1967)).

13

{41} In the district court’s judgment and sentencing order, Judge Eichwald explicitly

adjudged Defendant “guilty of [all] offenses,” including the underlying armed robbery

charge. The order served as an explicit acceptance and recording of the jury’s guilty verdicts

for both felony murder and the underlying felony of armed robbery, constituting convictions

under Section 30-1-11. Because the order constituted a conviction for both counts,

Schoonmaker required the district court to vacate the underlying armed robbery conviction.

See 2008-NMSC-010, ¶ 50. Instead, the order merely states that “Count II [(armed robbery)]

merges into Count I [(first degree felony murder)].” Even though the order proceeds to

impose a sentence only for first degree felony murder, the conviction for armed robbery is

not vacated. This oversight runs afoul of double jeopardy concerns by leaving the conviction

for armed robbery untouched, and arguably still intact. Accordingly, we vacate the armed

robbery conviction.

III. CONCLUSION

{42} We affirm Defendant’s convictions for first degree felony murder, possession of a

firearm or destructive device by a felon, and tampering with evidence. We vacate

Defendant’s conviction for armed robbery.

{43} IT IS SO ORDERED.

______________________________________

EDWARD L. CHÁVEZ, Justice

WE CONCUR:

______________________________________

CHARLES W. DANIELS, Chief Justice

______________________________________

PATRICIO M. SERNA, Justice

______________________________________

PETRA JIMENEZ MAES, Justice

______________________________________

RICHARD C. BOSSON, Justice

Topic Index for State v. Garcia, Docket No. 30,782

AT Attorneys

AT-EA Effective Assistance of Counsel

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CT Constitutional Law

CT-DJ Double Jeopardy

CT-RC Right to Counsel

CL Criminal Law

CL-FM Felony Murder

CL-TE Tampering with Evidence

CA Criminal Procedure

CA-EA Effective Assistance of Counsel

CA-PS Pro Se

CA-SV Severance

CA-SE Sufficient Evidence

EV Evidence

EV-TM Tampering with Evidence

EV-SS Substantial or Sufficient Evidence

15