State v. Cunningham
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 33,401 5 THOMAS CUNNINGHAM, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Judith K. Nakamura, District Judge 9 10 11 12 Hector H. Balderas, Attorney General Santa Fe, NM Walter Hart, Assistant Attorney General Albuquerque, NM 13 for Appellee 14 15 16 17 18 Jorge A. Alvarado, Chief Public Defender Becca Salwin, Assistant Appellate Defender Santa Fe, NM Vicki W. Zelle, Assistant Appellate Defender Albuquerque, NM 19 for Appellant 20 MEMORANDUM OPINION 1 BUSTAMANTE, Judge. 2 {1} Thomas Cunningham (Defendant) appeals the district court’s denial of his 3 motion to suppress evidence on the ground that there was no reasonable suspicion to 4 support the investigatory detention that led to evidence against him. We conclude that 5 the officer’s detention of Defendant was based on reasonable suspicion and therefore 6 affirm. We also decline Defendant’s invitation to remand for a new trial based on his 7 claim of ineffective assistance of counsel. 8 BACKGROUND 9 {2} At approximately 10 p.m. on April 4, 2012, Officer Chris Luttrell was on patrol 10 near a shopping center at San Mateo and Zuni in Albuquerque, New Mexico. The back 11 of the shopping center faces Acoma Street. Between the back of the shopping center 12 and Acoma Street there is an open area in which there were loading docks and 13 dumpsters. The area is separated from Acoma Street by a curb. Officer Luttrell was 14 driving westbound in a black, unmarked Crown Victoria with the lights off when he 15 observed a pickup truck parked next to a dumpster behind the shopping center. Officer 16 Luttrell testified that it was “very dark” behind the shopping center and that there were 17 no businesses open either in the shopping center or across the street from where the 18 truck was parked, except for possibly a “pizza place” that had “its own lighted area 19 parking” that was closer to the store’s entrance than where the truck was parked. 20 Defendant and another man (Valentine Romero) were sitting in the cab of the truck, 2 1 with Defendant on the passenger side. A third man was standing next to the open 2 passenger door interacting with the occupants of the truck. Officer Luttrell testified 3 that he “c[a]me drifting down” toward the truck with his lights off because he “like[d] 4 to drive right up on people and catch them in the act.” When he was approximately 5 thirty feet from the truck, Officer Luttrell turned on the police car’s spotlight. As he 6 did so, he observed a “hand-to-hand,” which he described as “when I’m going to give 7 you cash for some sort of illicit drugs and we pass to each other.” 8 {3} Shortly after turning on the spotlight, Officer Luttrell approached the passenger 9 side of the truck on foot. At some point, either while still in the police car or while 10 walking toward the truck, Officer Luttrell saw Defendant shove a black bag down 11 toward his feet. As Officer Luttrell walked toward the truck, the man standing at the 12 passenger side door noticed him and “t[ook] off northbound [at] a high pace.” Officer 13 Luttrell identified himself as a police officer and told the truck occupants to keep their 14 hands where he could see them. Officer Luttrell was armed and wearing a uniform that 15 identified him as a police officer. He asked who owned the black bag at Defendant’s 16 feet. Both Defendant and Romero denied ownership of the bag. 17 {4} During the discussion of the bag’s ownership, Officer Luttrell observed a “long, 18 thin crack pipe sticking up and out” of the bag. After seeing the pipe, Officer Luttrell 19 “got [Defendant] out, placed him in cuffs and put him under arrest.” Officer Luttrell 20 also found marijuana, heroin, and other drug paraphernalia in the bag. He then 3 1 “pat[ted Defendant] down,” put Defendant in the police car, and took him to the 2 prisoner transport center. At the prisoner transport center, Officer Luttrell watched as 3 another officer was preparing Defendant for booking by removing Defendant’s belt. 4 During this process, a baggie, later determined to contain crack cocaine, dropped from 5 Defendant’s waist area. 6 {5} Defendant was charged with possession of cocaine, as well as possession of 7 marijuana, heroin, and drug paraphernalia. His motion to suppress the evidence 8 obtained from the truck and at the prisoner transport center based on a lack of 9 reasonable suspicion for his detention was denied. 10 {6} Defendant was convicted by a jury on all counts. He now appeals, arguing that 11 the district court erred in denying his motion to suppress. 12 DISCUSSION 13 Defendant’s Right to be Free From Unreasonable Seizures Was Not Violated 14 {7} The right to be free from unreasonable searches and seizures, including 15 investigatory detentions, stems from the Fourth Amendment to the United States 16 Constitution and Article II, Section 10 of the New Mexico Constitution. See U.S. 17 Const. amend. IV; N.M. Const. art. II, § 10; State v. Jason L., 2000-NMSC-018, ¶ 14, 18 129 N.M. 119, 2 P.3d 856 (“[I]nvestigatory stops are seizures invoking Fourth 19 Amendment protections[.]”). “An investigatory detention occurs when an officer 20 briefly detains and investigates a person based on reasonable suspicion of criminal 4 1 activity.” State v. Wilson, 2007-NMCA-111, ¶ 18, 142 N.M. 737, 169 P.3d 1184. 2 Analysis of the reasonableness of an investigatory detention requires us to answer two 3 questions: at what point did the detention begin, and did the officer have reasonable 4 suspicion at that point to support the detention? See Jason L., 2000-NMSC-018, ¶ 1 5 (stating that the Court would analyze “(1) when was [the defendant] seized for 6 purposes of his constitutional protections, . . . and (2) was his seizure justified?”). We 7 address these questions in turn. 8 {8} “The point at which the seizure occurs is pivotal because it determines the point 9 in time the police must have reasonable suspicion to conduct an investigatory stop.” 10 State v. Harbison, 2007-NMSC-016, ¶ 10, 141 N.M. 392, 156 P.3d 30. A person is 11 seized when “a police officer accosts an individual and restrains his freedom to walk 12 away.” Jason L., 2000-NMSC-018, ¶ 15 (internal quotation marks and citation 13 omitted). “[R]estraint on a person’s freedom . . . can be the result of either physical 14 force or a showing of authority.” Id. To determine whether a person has been seized, 15 we examine “(1) the conduct of the police, (2) the person of the individual citizen, and 16 (3) the physical surroundings of the encounter.” Id. (internal quotation marks and 17 citation omitted). In doing so, we ask “(1) what were the circumstances surrounding 18 the stop, including whether the officers used a show of authority; and (2) did the 19 circumstances reach such a level of accosting and restraint that a reasonable person 20 would have believed he or she was not free to leave?” Id. ¶ 19. The former question 5 1 is “a factual inquiry, which we review for substantial evidence[,]” whereas the latter 2 “is a legal inquiry, which we review de novo.” Id. 3 {9} On appeal, Defendant argues that he was seized as soon as Officer Luttrell 4 turned on the spotlight and began to “rapid[ly]” approach the truck. In contrast, the 5 State argues that the investigatory detention began only when Officer Luttrell 6 identified himself as a police officer and ordered Defendant to keep his hands visible. 7 These arguments are consistent with the parties’ arguments before the district court. 8 {10} 9 10 11 12 13 14 15 16 17 18 19 20 In its denial of Defendant’s motion to suppress, the district court stated: The [c]ourt finds that Officer Luttrell had reasonable suspicion, based on articulable facts, to stop Defendant on April 4, 2012. Considering the totality of the circumstances, the [c]ourt finds that the following facts supported the [o]fficer’s reasonable suspicion to stop [Defendant]: the high-crime nature of the area in which Defendant was parked, the fact that Defendant was parked away from any open businesses, lighted areas, or marked parking spaces, the [o]fficer’s observation of a hand-to-hand transaction followed by the quick departure, upon seeing the [o]fficer, of the third party to the transaction, as well as Defendant’s furtive movement to hide an item in the car when the [o]fficer approached. {11} The district court did not state explicitly when Defendant was seized. But 21 because the district court included “Defendant’s furtive movement” in its statement 22 of facts supporting reasonable suspicion to detain Defendant, we infer that the district 23 court also found that Defendant was detained after that movement occurred. In other 24 words, the district court apparently agreed with the State that the investigatory 25 detention did not begin until Defendant knew that the person approaching was a police 6 1 officer and was told to keep his hands visible. See Jason L., 2000-NMSC-018, ¶ 10 2 (“All reasonable inferences in support of the district court’s decision will be indulged 3 in, and all inferences or evidence to the contrary will be disregarded.” (alterations, 4 internal quotation marks, and citation omitted)). 5 {12} As already noted, the district court did not make any explicit factual findings 6 about the circumstances surrounding the stop. However, the parties appear to agree 7 on the following facts: (1) it was nighttime and therefore dark in the area behind the 8 shopping center; (2) Defendant and Romero were seated in a truck next to a dumpster 9 behind the shopping center; (3) an unnamed person was standing next to the open 10 passenger door of the truck interacting with the truck’s occupants; (4) Defendant was 11 sitting in the passenger seat of the truck; (5) Officer Luttrell approached the truck in 12 his unmarked police vehicle with his lights off; (6) within approximately thirty feet 13 of the truck, Officer Luttrell turned on the police car’s spotlight; (7) the person 14 standing next to the truck quickly left the scene; and (8) Officer Luttrell, wearing a 15 uniform identifying him as a police officer, quickly began approaching the truck on 16 foot. Defendant’s position is that he was seized at this point. Next, (9) Officer Luttrell 17 saw Defendant push a black bag towards his feet, and (10) announced that he was a 18 police officer as he approached the vehicle and told Defendant to keep his hands 19 visible. The State argues that Defendant was not seized until the latter occurred. These 20 facts are supported by Officer Luttrell’s testimony. 7 1 {13} Given these facts, we go on to the second step in the seizure analysis: at what 2 point in this sequence would “a reasonable person . . . have believed he or she was not 3 free to leave?” Id. ¶ 19. We disagree with Defendant that the turning on of the 4 spotlight and the position of the unmarked car was sufficient to cause Defendant to 5 believe that he was not free to leave at that point. Because the police car was 6 unmarked, there was nothing that indicated to Defendant that it was occupied by a 7 police officer. Cf. State v. Walters, 1997-NMCA-013, ¶ 15, 123 N.M. 88, 934 P.2d 8 282 (holding “there was no show of authority to bring about a stop [where the 9 d]efendant was not even aware he was being followed by the police”). Hence, the 10 mere activation of the spotlight on the unmarked car, by itself, did not constitute a 11 show of authority such that a reasonable person would have felt restrained. Cf. State 12 v. Garcia, 2009-NMSC-046, ¶ 41, 147 N.M. 134, 217 P.3d 1032 (holding that the 13 defendant was seized when the officer stopped his marked car close to the defendant, 14 shone the spotlight on him, and told the defendant to stop); City of Roswell v. Hudson, 15 2007-NMCA-034, ¶¶ 13-14, 141 N.M. 261, 154 P.3d 76 (considering use of the 16 spotlight in the totality of the circumstances and holding that a defendant was seized 17 when the police officer was in a marked car and shone his spotlight into the 18 defendant’s car and demanded identification); State v. Baldonado, 1992-NMCA-140, 19 ¶ 18, 115 N.M. 106, 847 P.2d 751 (holding that there is no seizure when an officer 20 pulls up behind a stopped car and turns on the police car’s emergency lights, but 8 1 acknowledging that there may be a seizure when other circumstances, such as the 2 officer’s demeanor, indicate that the driver is not free to leave). In addition, although 3 Defendant argues that Officer Luttrell’s car was positioned such that he would have 4 had to drive over a curb to leave the area, and therefore was seized as soon as Officer 5 Luttrell drove up, the district court apparently found to the contrary, since it 6 determined that there was no seizure until after Officer Luttrell approached the truck 7 on foot and announced his presence. See Jason L., 2000-NMSC-018, ¶ 11 (stating that 8 “as a general rule, we will indulge in all reasonable presumptions in support of the 9 district court’s ruling.” (alteration, internal quotation marks, and citation omitted)). 10 Finally, Officer Luttrell’s approach toward the truck does not constitute a seizure, 11 even though he was wearing a uniform and had a holstered weapon. State v. Gutierrez, 12 2008-NMCA-015, ¶ 9, 143 N.M. 522, 177 P.3d 1096 (“Law enforcement officers 13 generally need no justification to approach private individuals on the street to ask 14 questions.”). 15 {14} Instead, we agree with the State and the district court that Defendant was seized 16 once Officer Luttrell told Defendant he was a police officer and ordered him to keep 17 his hands visible. Id. (stating that a seizure might occur when “the use of language or 18 tone of voice indicat[es] that compliance with the officer’s request might be 19 compelled.” (internal quotation marks and citation omitted)); see State v. Murry, 20 2014-NMCA-021, ¶ 9, 318 P.3d 180 (stating that “[the d]efendant was seized by 9 1 police when, after the two officers approached the parked vehicle she was sitting in, 2 [one of the officers] ordered the driver to open his door”). 3 {15} We turn to the question of whether there was reasonable suspicion to detain 4 Defendant. “Under Terry v. Ohio and its progeny, police officers may stop a person 5 for investigative purposes where, considering the totality of the circumstances, the 6 officers have a reasonable and objective basis for suspecting that particular person is 7 engaged in criminal activity.” State v. Werner, 1994-NMSC-025, ¶ 11, 117 N.M. 315, 8 871 P.2d 971 (internal quotation marks and citation omitted). “A reasonable suspicion 9 is a particularized suspicion, based on all the circumstances that a particular 10 individual, the one detained, is breaking, or has broken, the law.” Jason L., 200011 NMSC-018, ¶ 20. Generalized suspicion is inadequate: “The officer’s suspicion must 12 rest on specific, articulable facts” relevant to the particular individual stopped. State 13 v. Robbs, 2006-NMCA-061, ¶ 12, 139 N.M. 569, 136 P.3d 570. “Reasonable 14 suspicion must exist at the inception of the seizure.” Jason L., 2000-NMSC-018, ¶ 20. 15 Because the reasonableness of an investigatory detention is a question of law, we 16 review whether the stop was justified de novo. Robbs, 2006-NMCA-061, ¶ 9. 17 {16} Other than a brief reference to “greater protections” provided by the New 18 Mexico Constitution, Defendant does not address how New Mexico’s reasonable 19 suspicion standards differ from those under the Fourth Amendment. We agree that, 20 generally speaking, the New Mexico Constitution provides greater protections against 10 1 unreasonable searches and seizures than the United States Constitution. State v. 2 Gomez, 1997-NMSC-006, ¶ 24, 122 N.M. 777, 932 P.2d 1 (“There is established New 3 Mexico law interpreting Article II, Section 10 more expansively than the Fourth 4 Amendment.”). However, Defendant has not identified any authority for the more 5 specific proposition that the reasonable suspicion analysis is more stringent under 6 Article II, Section 10 than under the Fourth Amendment. In the cases to which 7 Defendant cites for their definition of reasonable suspicion, the Courts relied on 8 federal case law or expressly stated that their analysis was based solely on the Fourth 9 Amendment. See, e.g., State v. Neal, 2007-NMSC-043, ¶ 17, 142 N.M. 176, 164 P.3d 10 57; State v. Urioste, 2002-NMSC-023, ¶ 10, 132 N.M. 592, 52 P.3d 964. We therefore 11 do not address this argument. See Harbison, 2007-NMSC-016, ¶ 26 (stating that 12 “[w]ithout a state constitutional argument presented to the Court of Appeals, . . . that 13 Court was not required to conduct its own interstitial analysis”). 14 {17} Based on his argument that he was seized when Officer Luttrell turned on the 15 spotlight, Defendant argues that, at the time that he was detained, Officer Luttrell had 16 only a hunch that criminal activity was about to or had occurred, based only on the 17 neighborhood, the time of night, and the fact of the man standing next to the open 18 door. He maintains that these facts are sufficient only to form an “inchoate and 19 unparticularized suspicion,” not rising to the reasonable suspicion necessary to justify 20 an investigatory detention. However, since we have concluded that Defendant was 11 1 seized only when Officer Luttrell announced that he was a police officer and told 2 Defendant to keep his hands visible, we examine whether there was reasonable 3 suspicion at that point to detain Defendant. 4 {18} Defendant relies on two cases to argue that reasonable suspicion was absent. 5 The first is Neal, a 2007 case in which an officer observed the defendant, seated in a 6 truck parked outside of a house that was under investigation for drug activity, interact 7 with a person standing next to the driver’s side door. 2007-NMSC-043, ¶ 4. Before 8 the officer could approach the truck, the defendant drove away and the officer 9 followed. Id. ¶ 5. As he followed, the officer observed that the truck had a cracked 10 windshield and pulled the truck over “for obstruction of driver’s view/vehicle in 11 unsafe condition.” Id. When he walked up to the truck, the officer recognized the 12 defendant as someone “he knew had prior drug-related and assault convictions.” Id. 13 During the stop, the officer also learned that the man to whom the defendant had been 14 talking was someone the officer knew to be under investigation for drug activity. Id. 15 ¶ 7. The officer observed that the defendant was nervous throughout the encounter. 16 Id. After the defendant declined consent to search the truck, the officer told the 17 defendant that the truck would be held “until a drug dog arrived to perform a 18 perimeter sniff of it.” Id. ¶ 8. The defendant left the scene while the officer waited for 19 the dog. Id. 20 {19} The detention of the truck was based on 12 1 2 3 4 5 6 [the officer’s] observations of [the d]efendant prior to and during the stop, including his observations of the two men at the truck; his belief that a drug transaction had taken place; [the d]efendant’s nervous, fidgety, and agitated demeanor; [the d]efendant’s desire to leave; and [the officer’s] prior personal knowledge of [the d]efendant’s and [the man leaning into the truck’s] criminal history. 7 Id. ¶ 9. In a subsequent search of the truck, officers found a loaded weapon and 8 methamphetamine. Id. ¶ 11. 9 {20} The district court granted the defendant’s motion to suppress the evidence 10 obtained from the truck. Id. ¶ 12. On appeal, this Court reversed. Id. ¶ 13. Our 11 Supreme Court reversed this Court, holding that “[the officer] lacked the requisite 12 reasonable suspicion to detain [the d]efendant’s truck to await a canine sniff.” Id. ¶ 32. 13 In doing so, our Supreme Court noted that, as to the alleged transaction observed by 14 the officer, “[the officer] could only see that an occupant of the house [under 15 investigation] was leaning into [the d]efendant’s truck. He could not see what, if 16 anything, they were doing, aside from talking, and could not hear what they were 17 saying.” Id. ¶ 27. 18 {21} Defendant also relies on State v. Carrillo, an unpublished opinion of this Court. 19 No. 31,251, mem. op. (N.M. Ct. App. Mar. 28, 2013) (non-precedential). There, we 20 affirmed the district court’s order suppressing evidence gathered when the defendant 21 was stopped in a Walgreen’s parking lot after officers observed the defendant 22 interacting with the occupant of another car at a nearby park. Id. ¶¶ 3-4. At the park, 13 1 an officer had “observed what appeared to be a hand-to-hand transaction that lasted 2 three to four seconds. However, [the officer] did not see what was exchanged.” Id. ¶ 3. 3 We held that, even though “the police had received complaints from residents about 4 possible narcotics activity in the area,” the officers’ observations of the defendant 5 were insufficient to provide reasonable suspicion for the stop at Walgreen’s. Id. ¶¶ 12, 6 15. 7 {22} To the extent that Defendant relies on these cases for the proposition that an 8 alleged “hand-to-hand” is insufficient to provide reasonable suspicion of illegal 9 activity on its own, we note that the alleged “hand-to-hand” here was not the only 10 factor considered by Officer Luttrell. Moreover, the facts here are distinguishable 11 from Neal and Carrillo, which both involved conduct during the day in public 12 locations. Neal, 2007-NMSC-043, ¶ 4 (occurring at approximately 10 a.m., defendant 13 parked on the street in front of a residence); Carrillo, No. 31,351, mem. op. ¶ 3, 14 (occurring “shortly before noon,” defendant parked at a local park). Here, Defendant 15 was parked in the unlighted, “very dark” loading area of a shopping center at nearly 16 10 p.m., away from the only business that might have been open at that hour. In 17 addition, upon seeing the officer, the unnamed person standing at the truck quickly 18 walked away, and Defendant attempted to hide the black bag as Officer Luttrell 19 approached. Considering the totality of the circumstances, we conclude that these 20 facts, taken together, gave rise to reasonable suspicion that Defendant was, or was 14 1 about to be, engaged in illegal activity. See Neal, 2007-NMSC-043, ¶ 28 (stating that 2 “our reasonable suspicion determination requires us to assess the totality of the 3 circumstances and precludes . . . a divide-and-conquer analysis in which we view each 4 individual factor or circumstance in a vacuum.” (omission in original) (alteration, 5 internal quotation marks, and citation omitted)); Urioste, 2002-NMSC-023, ¶ 10 (“A 6 reasonable suspicion of criminal activity can arise from wholly lawful conduct.” 7 (internal quotation marks and citation omitted)). 8 Defendant Has Failed to Make a Prima Facie Showing of Ineffective Assistance 9 of Counsel 10 {23} Defendant argues that he is entitled to a new trial because his counsel was 11 ineffective. “We review claims of ineffective assistance of counsel de novo.” State v. 12 Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44. We assess such claims 13 using the two-pronged test set out in Strickland v. Washington, 466 U.S. 668, 687 14 (1984). Dylan J., 2009-NMCA-027, ¶ 36. Under this test, the defendant must “show 15 that his counsel’s performance was deficient and that the deficient performance 16 prejudiced his defense.” Id. An attorney is ineffective “if [his or her performance] falls 17 below an objective standard of reasonableness.” Id. ¶ 37. We indulge a strong 18 presumption in favor of counsel’s effectiveness. Id. (“We indulge a strong 19 presumption that counsel’s conduct falls within the wide range of reasonable 20 professional assistance; that is, the defendant must overcome the presumption that, 15 1 under the circumstances, the challenged action might be considered sound trial 2 strategy.” (internal quotation marks and citation omitted)). 3 {24} Generally, “when the record does not contain all the facts necessary for a full 4 determination of the issue, an ineffective assistance of counsel claim is more properly 5 brought through a habeas corpus petition[.]” Id. ¶ 39 (internal quotation marks and 6 citation omitted); see id. ¶ 41 (stating that “habeas corpus proceedings are the 7 preferred avenue for adjudicating ineffective assistance of counsel claims” (internal 8 quotation marks and citation omitted)). However, upon a prima facie showing of 9 ineffectiveness, this Court may remand for an evidentiary hearing. Id. ¶ 39. 10 {25} Here, Defendant asserts that defense counsel was ineffective because he failed 11 to (1) conduct a pre-trial interview of Romero, the driver of the truck; (2) “work out 12 some immunity deal” to permit Romero to testify at Defendant’s trial; or (3) 13 understand that competency to testify as a witness is not the same as competency to 14 stand trial, which led defense counsel’s decision to withdraw Romero as a witness. 15 {26} Defendant’s arguments are not supported by the record. Defense counsel stated 16 at the suppression hearing that he had received “in the mail, an affidavit purportedly 17 from . . . Romero.” The affidavit’s description of the encounter with Officer Luttrell 18 differed substantially from Officer Luttrell’s testimony and stated that “[t]he police 19 lied about the events of that night.” However, at the suppression hearing, defense 20 counsel stated that “[w]hen we did a witness interview of . . . Romero, he essentially 16 1 disavowed that affidavit” and that the affidavit would not be submitted into evidence. 2 These statements suggest that Romero was in fact interviewed by defense counsel. In 3 addition, defense counsel did not object to the State’s statement that “all parties 4 acknowledge . . . that according to the supposed author of the affidavit and his 5 attorney[,] who stated that [Romero] was ruled incompetent in a few cases and 6 illiterate, that the affidavit was false.” Later in the hearing, defense counsel stated that 7 Romero was withdrawn as a witness “because . . . [he is] not competent to stand trial.” 8 Even if this reasoning was incorrect, Defendant has not shown that his defense was 9 hindered by the absence of Romero’s testimony. First, although on appeal Defendant 10 asserts that Romero’s testimony would have “corroborated a different version of the 11 facts” from that presented by Officer Luttrell and provided “powerful exculpatory 12 testimony[,]” there is no evidence in the record indicating the substance of Romero’s 13 testimony, other than the disavowed affidavit. Second, given that Romero disavowed 14 the affidavit, we cannot say on direct appeal that defense counsel’s decision to 15 withdraw Romero as a witness was not “sound trial strategy.” State v. Paredez, 200416 NMSC-036, ¶ 14, 136 N.M. 533, 101 P.3d 799 (internal quotation marks and citation 17 omitted). 18 {27} We conclude that Defendant has not made a prima facie showing of ineffective 19 assistance of counsel and thus decline to remand to the district court for a new trial or 20 an evidentiary hearing on this issue. Defendant may pursue his ineffectiveness claim 17 1 in habeas corpus proceedings. See State v. Cordova, 2014-NMCA-081, ¶ 16, 331 P.3d 2 980 (declining to remand for evidentiary hearings and stating that the defendant may 3 initiate habeas corpus proceedings), cert. denied, 2014-NMCERT-007, 331 P.3d 980. 4 CONCLUSION 5 {28} We conclude that the district court did not err in denying Defendant’s motion 6 to suppress evidence. In addition, because Defendant has failed to present prima facie 7 evidence supporting it, we decline to remand for a new trial or an evidentiary hearing 8 on Defendant’s ineffectiveness claim. 9 {29} IT IS SO ORDERED. 10 11 MICHAEL D. BUSTAMANTE, Judge 12 WE CONCUR: 13 __________________________________ 14 RODERICK T. KENNEDY, Judge 15 __________________________________ 16 LINDA M. VANZI, Judge 18
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