State v. Pace
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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-37089 5 JAMES PACE, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 Mark Sanchez, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Bennett J. Baur, Chief Public Defender 13 C. David Henderson, Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 17 VANZI, Chief Judge. MEMORANDUM OPINION 1 {1} Defendant James Pace appeals his conviction for DWI (3rd Offense). We issued 2 a calendar notice proposing to affirm. Defendant has responded with a memorandum 3 in opposition. Not persuaded, we affirm. 4 {2} Defendant’s sole issue on appeal is whether trial counsel was ineffective. We 5 will not decide an ineffective assistance of counsel claim on direct appeal unless a 6 defendant makes a prima facie showing that counsel was incompetent and the 7 incompetence resulted in prejudice to the defense. See State v. Richardson, 19928 NMCA-112, ¶ 4, 114 N.M. 725, 845 P.2d 819, abrogated on other grounds by Allen 9 v. LeMaster, 2012-NMSC-001, 267 P.3d 806. A defendant must show that counsel’s 10 actions were not simply matters of strategy, were made part of the record, and have 11 prejudiced Defendant. See State v. Baca, 1997-NMSC-59, ¶ 25, 124 N.M. 333, 950 12 P.2d 776 (stating that “a prima facie case is not made when a plausible, rational 13 strategy or tactic can explain the conduct of defense counsel” (internal quotation 14 marks and citation omitted)). 15 {3} Here, Defendant claims that defense counsel was ineffective because he failed 16 to move to exclude a dash cam video, which captured his behavior after he was placed 17 in the backseat of the patrol car. [MIO 3] When a defendant’s ineffective assistance 18 of counsel claim is based upon trial counsel’s failure to file a motion, the record must 19 show “that a reasonably competent attorney could not have decided that such a motion 2 1 was unwarranted.” State v. Mosley, 2014-NMCA-094, ¶ 20, 335 P.3d 244. Our 2 calendar notice observed that Defendant did not specify the legal basis for objecting 3 to the introduction of the video. In his memorandum in opposition, Defendant claims 4 that the video—which showed him highly agitated and cursing—constituted prior bad 5 act evidence, and that it was inadmissible under Rule 11-404(B) NMRA. [MIO 8-9] 6 However, this Court has held that “[t]he inclusion of the word ‘other’ [in Rule 7 11-404(B)] connotes crimes, wrongs, or acts that are not the subject of the [current] 8 proceedings[.]” State v. Ruiz, 2007-NMCA-014, ¶¶ 27-28, 141 N.M. 53, 150 P.3d 9 1003. In this case, Defendant’s conduct at the scene was part of the charged conduct, 10 since it was probative on this issue of whether Defendant was under the influence of 11 alcohol. [See Jury Instruction No. 3, RP 28] Although the jury could determine that 12 the anger was unrelated to being under the influence, as Defendant advocates [MIO 13 3], this does not affect the admissibility of the evidence, since a jury could well 14 conclude that it showed the opposite. In other words, it was probative of mental state 15 and we conclude that the motion would have been denied. 16 {4} For the reasons set forth above, we affirm. 17 {5} IT IS SO ORDERED. 18 19 _________________________________ LINDA M. VANZI, Chief Judge 20 WE CONCUR: 3 1 ____________________________ 2 DANIEL J. GALLEGOS, Judge 3 ____________________________ 4 JENNIFER L. ATTREP, Judge 4
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