# State v. Grogan > New Mexico Supreme Court · June 27, 2007 · 142 N.M. 107 URL: https://www.frixlaw.com/law-library/cases/9782076 ## Case - **Full name:** STATE of New Mexico, Plaintiff-Respondent. v. Stanley GROGAN, Defendant-Petitioner - **Court:** New Mexico Supreme Court - **Decided:** June 27, 2007 - **Citations:** 142 N.M. 107; 163 P.3d 494; 2007 NMSC 039 - **Precedential status:** Published - **Opinion:** Dissent by Minzner - **Judges:** Maes, Chávez, Bosson, Minzner, Serna - **Cited by:** 123 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9782076 ## How later opinions describe it (automated extraction) - recognizing Hunter, 2006-NMSC-043, ¶ 30, 140 N.M. 406, 143 P.3d 168, which quotes Duncan, 115 N.M. at 346, 851 P.2d at 468, for the notion that “[hjabeas corpus proceedings are the preferred avenue for adjudicating ineffective assistance of counsel claims, because the record b… - stating that 6 “[h]abeas corpus proceedings are the preferred avenue for adjudicating ineffective 7 assistance of counsel claims, because the record before the trial court may not 8 adequately document the sort of evidence essential to a determination of trial counsel's 9 effe… - stating that “[h]abeas corpus proceedings are the preferred avenue for adjudicating ineffective assistance of counsel claims, because the record before the trial court may not adequately document the sort of evidence essential to a determination of trial counsel’s effectivenes… - stating that deficient performance is established by evidence demonstrating that the “attorney’s conduct fell below that of a reasonably competent attorney” (internal quotation marks and citation omitted) - noting that “when ‘attorney incompetence is so obvious that a trial judge ... should be aware of the threat to the defendant’s Sixth Amendment right to counsel’ the integrity of the judicial system is at risk” (quoting Galia Benson-Amram, Protecting the Integrity of the Court:… ## Opinion text MINZNER, Justice (dissenting). {22} I respectfully dissent. I agree with the Court of Appeals that the trial court should have inquired into defense counsel’s perceived ineffectiveness. The trial court should not have sua sponte ordered a new trial without first giving the State an opportunity at an evidentiary hearing to counter the trial judge’s impressions that Defendant’s counsel was ineffective. {23} The Court of Appeals, in a Memorandum Opinion, held “that the trial court, before sua sponte entering its order for new trial, should have first held a hearing to allow the State an opportunity to rebut the allegations of ineffective assistance of counsel.” State v. Grogan, No. 25,699, slip op. at 3 (Ct.App. Oct. 11, 2005). I agree. I cannot imagine a case requiring a ruling by the district court in which both sides are not allowed the opportunity to present an argument and, if relevant, evidence to support their argument; such an opportunity seems essential to due process. See State v. Baca, 1997-NMSC-059, ¶25 , 124 N.M. 333 , 950 P.2d 776 (“ ‘[Ijneffeetive assistance usually can be reached only after an adversarial proceeding exploring the reasons for the action or inaction of defense counsel.’ ”) (quoting State v. Richardson, 114 N.M. 725, 730 , 845 P.2d 819, 824 (Ct.App.1992)). Thus, the State should be given the chance to “elicit testimony from defense counsel that any perceived shortcoming were instead part of legitimate trial strategy and tactics.” Grogan, slip op. at 3; see State v. Reyes, 2002-NMSC-024, ¶ 45 , 132 N.M. 576 , 52 P.3d 948 (noting the trial court held such an evidentiary hearing to review claims of ineffective assistance of counsel raised by the defendant in a motion shortly after trial). {24} This Court has long adhered to the standard put forth by the United States Supreme Court in Strickland v. Washington, which set forth a two-prong test for determining a violation of the Sixth Amendment right to effective counsel: “the defendant must show that counsel’s performance was deficient” and “the defendant must show that the deficient performance prejudiced the defense.” 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); see, e.g., State v. Roybal, 2002-NMSC-027, ¶ 19 , 132 N.M. 657 , 54 P.3d 61 ; Lytle v. Jordan, 2001-NMSC-016, ¶ 25 , 130 N.M. 198 , 22 P.3d 666 . “Failure to prove either prong of the test defeats a claim of ineffective assistance of counsel.” Reyes, 2002-NMSC-024, ¶ 48 , 132 N.M. 576 , 52 P.3d 948 ; see State v. Baca, 1997-NMSC-045, ¶ 21 , 124 N.M. 55 , 946 P.2d 1066 . Defense counsel’s performance is deficient if his “ ‘representation fell below an objective standard of reasonableness.’ ” Lytle, 2001-NMSC-016, ¶ 26 , 130 N.M. 198 , 22 P.3d 666 (quoting Strickland, 466 U.S. at 688 , 104 S.Ct. 2052 ). It seems fair to say, in the present case, that defense counsel’s performance fell below the reasonable standard, thus establishing a prima facie case of ineffective assistance. State v. Swavola, 114 N.M. 472, 475 , 840 P.2d 1238, 1241 (Ct.App.1992). However, even if Defendant can show his counsel’s performance fell below that of a reasonably competent attorney, he must also show that his counsel’s perceived failure(s) “prejudiced his defense such that there was a reasonable probability that the outcome of the trial would have been different.” State v. Torres, 2005-NMCA-070, ¶ 18 , 137 N.M. 607 , 113 P.3d 877 (internal quotation marks and citation omitted). Under Strickland, “mere evidentiary prejudice” is insufficient. Roybal, 2002-NMSC-027, ¶ 25 , 132 N.M. 657 , 54 P.3d 61 . “Counsel’s deficient performance must represent so serious a failure of the adversarial process that it undermines judicial confidence in the accuracy and reliability of the outcome.” Id. {25} The trial court ordered a new trial, sua sponte, based on six instances of what it perceived to be ineffective assistance of counsel: (1) defense counsel’s failure to secure and read his own expert’s opinion before permitting the expert to write the report that was disclosed to the State; (2) defense counsel’s failure to move for a mistrial when the prosecutor referred to Defendant as a “criminal defendant”; (3) defense counsel’s failure to move for a mistrial after the prosecutor sought to have the jury consider inadmissible evidence on three separate occasions; (4) defense counsel’s failure to move for a mistrial when the prosecutor brought one of the children into the courtroom in a wheelchair during closing arguments; (5) defense counsel’s failure to explore alternative reasons for the accident through cross-examination; and (6) defense counsel’s failure to submit jury instructions for the lesser included offense of careless driving. Yet, the majority ultimately holds that “[djefense counsel’s failure to secure and review his own expert’s opinion before permitting the expert to write the report ... constituted such obvious attorney incompetence, it cannot be rebutted,” concluding the other five instances need not be discussed. Maj. Op. ¶¶ 16, 17. I think, at the very least, all of the trial court’s findings regarding defense counsel’s actions during Defendant’s trial should be considered. {26} Perhaps this case is sui generis. That is, perhaps this is a case reflecting such egregious mistakes on defense counsel’s part, that Defendant is entitled to a new trial based solely on the trial court’s sua sponte order. In State v. Buchanan, this Court recognized there might be exceptions to the need for an evidentiary hearing on issues that could be resolved based on the trial judge’s personal observations. 78 N.M. 588, 590-91 , 435 P.2d 207, 209-10 (1967). However, I continue to think such a determination should follow an evidentiary hearing or stipulated facts or a combination of stipulated facts and a hearing. Such a process allows both parties to participate in a meaningful way and ensure the utmost fairness in criminal trials while seeking to protect the rights of criminal defendants. {27} The majority opinion holds, “that in cases of obvious ineffective assistance of counsel, the trial judge has the duty to maintain the integrity of the court, and thus inquire into the representation.” Maj. Op. ¶ 10 (emphasis added); see Galia Benson-Amram, Protecting the Integrity of the Court: Trial Court Responsibility for Preventing Ineffective Assistance of Counsel in Criminal Cases, 29 N.Y.U. Rev. L. & Soc. Change 425 , 429 (2004). The majority then goes on to affirm the trial court, reverse the Court of Appeals, and reinstate the trial court’s order for a new trial. Maj. Op. ¶ 19. The trial court did not inquire into defense counsel’s perceived deficiencies; it sua sponte ordered a new trial without giving the State the opportunity to participate in any way. Thus, at a minimum, the trial court failed to conduct the inquiry which the majority opinion states it had a duty to conduct. {28} A showing of a prima facie ease of ineffective assistance of counsel necessitates a hearing on the issues, as has been our rule in New Mexico. My colleagues being of a different view, I respectfully dissent. I CONCUR: PATRICIO M. SERNA, Justice. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9782076. Public record. Not legal advice.