State v. Gutierrez
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1 2 3 4 5 This decision was not selected for publication in the New Mexico Reports. Please see Rule 12405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court and does not include the filing date. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 8 Plaintiff-Appellee, 9 10 v. NO. 31,527 11 ANTHONY GRACEN GUTIERREZ, 12 Defendant-Appellant. 13 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 14 James A. Hall, District Judge 15 Law Offices of Nancy L. Simmons, P.C. 16 Nancy L. Simmons 17 Albuquerque, NM 18 for Appellant 19 20 21 22 23 Gary K. King, Attorney General Nicole Beder, Assistant Attorney General Santa Fe, NM for Appellee 24 DECISION 25 DANIELS, Justice. 26 This is a direct appeal from Defendant Anthony Gracen Gutierrez s convictions 1 for first-degree murder and conspiracy to commit murder in connection with a revenge 2 spree in which a Santa Fe home was invaded and one man was fatally shot in the head, 3 another was shot in the head but survived, a third escaped a fatal shot to the head 4 when a pistol jammed, and another intended victim was not located at the scene of the 5 shootings. See N.M. Const. art. VI, § 2 ( Appeals from a judgment of the district 6 court imposing a sentence of death or life imprisonment shall be taken directly to the 7 supreme court. ); accord Rule 12-102(A)(1) NMRA. A jury found Defendant guilty 8 of first-degree murder, contrary to NMSA 1978, Section 30-2-1(A)(1) (1994), and 9 conspiracy to commit murder, contrary to NMSA 1978, Section 30-28-2 (1979). He 10 was sentenced to life imprisonment for the murder conviction and nine years plus an 11 eight-year habitual offender enhancement for the conspiracy conviction, for a total of 12 seventeen years to be served concurrently with the life sentence. 13 Defendant argues (1) that the evidence against him was insufficient to sustain 14 his convictions, (2) that the district court abused its discretion under Rule 11-403 15 NMRA by admitting testimony that he had been on probation and testimony relating 16 to the circumstances under which he told his probation officer that he had been 17 arrested on suspicion of murder but had gotten away with it, and (3) that he received 18 ineffective assistance of counsel. 19 We find no reversible error. Because the arguments raise no novel questions 2 1 of law that are not addressed sufficiently in New Mexico precedents, we issue this 2 unpublished decision affirming Defendant s convictions pursuant to Rule 12-405(B) 3 NMRA. 4 I. FACTUAL BACKGROUND 5 On, Friday, June 15, 2007, Defendant and his friends Jacob Chavez and 6 Michael Martinez attended a party at a hotel in Santa Fe, where Defendant and Chavez 7 got involved in a fight. A witness described Defendant s participation, saying he 8 actively backed up Chavez in their fight against others, becoming scratched and 9 bruised in the process. After the fight, Defendant and Chavez left the hotel in 10 Chavez s blue Tahoe truck, and Defendant was dropped off at his home. Chavez and 11 Martinez went on to another party at Max Valdez s house, the ultimate scene of the 12 fatal confrontation, later in the evening. 13 At Max Valdez s party, Jacob Chavez asked a guest, Erik Garcia, where he was 14 from and became angry and confrontational when Garcia said he was from El Paso, 15 Texas. As the argument intensified, Chavez produced a pistol, cocked it, and 16 brandished it while yelling at Garcia, who took off his shirt to show he was unarmed. 17 Michael Martinez also produced a pistol and backed up Chavez. Valdez pleaded with 18 the men not to do that here in his home, but the confrontation continued. In 19 response to Valdez s plea, Chavez said, Come on. I just want to shoot him. More 3 1 people became involved in trying to defuse the situation. Garcia was able to slip out 2 the back door of Max Valdez s house during the confusion. Chavez and Martinez 3 searched outside for him, both with guns drawn, but when those efforts were 4 unsuccessful, they left Valdez s house. 5 After Erik Garcia got away from them, Jacob Chavez and Michael Martinez met 6 with Defendant at a park near Chavez s house. All three men then returned to 7 Chavez s house, Defendant again riding in Chavez s blue Tahoe. At Chavez s house, 8 all three appeared to Defendant s girlfriend to be anxious to go back to Max Valdez s 9 house. Defendant asked his girlfriend for a ride back to Max Valdez s house. 10 Defendant himself said to her they were going back to take care of business. She 11 believed they were up to something and tried to dissuade them from going back, 12 telling them it wasn t worth it. She refused to drive for them and instead left 13 Chavez s house alone, returning to the same Santa Fe hotel where the first party took 14 place. 15 At around 5 or 6 a.m., Jacob Chavez and Michael Martinez broke through the 16 front door of Max Valdez s house, rushing into the living room with pistols in their 17 hands. Chavez was in the lead, while Martinez came in after him. As Chavez entered 18 the house, he shot Kyle Clark at close range, the bullet striking Clark in the mouth and 19 exiting from the side of his head. Chavez then aimed his pistol at another guest s head 4 1 and pulled the trigger, but the gun jammed and did not fire. As Chavez pointed his 2 pistol at other people in the living room, Martinez yelled No, no. It s not them. It s 3 not them. Most of the occupants fled as Chavez and Martinez continued to move 4 through the house with their pistols drawn. Chavez and Martinez then entered 5 Valdez s room, and another shot rang out. Valdez was later found dead in his 6 bedroom, with the cause of death determined to be a gunshot wound to the face from 7 a range of less than two to three feet. 8 Two witnesses who fled the Valdez house testified that they saw a blue Tahoe 9 parked outside with its engine running and a person sitting behind the wheel. One of 10 those witnesses identified Defendant as the person sitting in the driver s seat. 11 Defendant s girlfriend testified that Defendant and Michael Martinez returned 12 together to the Santa Fe hotel where she was staying early Saturday morning and 13 continued drinking. Defendant s girlfriend said that Defendant was visibly nervous 14 at the hotel, looking out the window and insisting that the blinds be closed. Defendant 15 told her he did not intend to leave the hotel. He gave her money to go to a Santa Fe 16 mall, where she bought clothes for the two of them. Another witness who saw 17 Defendant on Sunday, the day after the killing, said that he was noticeably uneasy, 18 was sweating, and became markedly nervous when a police car passed by. 19 When interviewed by police, Defendant made a number of false denials about 5 1 his activities and whereabouts around the time of the killings. He claimed he spent 2 the entire night of the killing by himself at the Santa Fe hotel where the first party had 3 occurred. At one point, he said he went with his girlfriend to visit a friend named 4 Jerry that weekend but was unable to provide Jerry s last name or address. 5 Defendant falsely denied seeing Jacob Chavez and Michael Martinez at all that 6 weekend, other than briefly on Saturday afternoon, and claimed the abrasions on his 7 body came from falling down the stairs. 8 Defendant was arrested in this case on July 13, 2007, but his charges were 9 dismissed after his girlfriend refused to testify before the grand jury. Some months 10 later, on February 5, 2008, Defendant met with his probation officer on an unrelated 11 charge, and he tested positive for cocaine use. When confronted with the test results, 12 Defendant said to the probation officer, I was arrested for murder and I got away 13 with it. I am not going to mess with this. After this revelation and upon his 14 girlfriend s willingness to cooperate with the authorities, Defendant was rearrested 15 and this prosecution ensued. 16 II. DISCUSSION 17 A. 18 The Evidence Against Defendant Was Sufficient to Support His Convictions for First-Degree Murder and Conspiracy to Commit Murder. 19 Defendant challenges the sufficiency of the evidence to support his convictions 6 1 for first-degree murder and conspiracy to commit murder. In reviewing a claim of 2 insufficiency of the evidence, we determine whether substantial evidence of either 3 a direct or circumstantial nature exists to support a verdict of guilt beyond a 4 reasonable doubt with respect to every element essential to a conviction. State v. 5 Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988). We must view the 6 evidence in the light most favorable to the guilty verdict, indulging all reasonable 7 inferences and resolving all conflicts in the evidence in favor of the verdict. State v. 8 Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 515 (internal quotation marks 9 and citation omitted). The role of the appellate court is to scrutinize the evidence and 10 supervise the jury s fact-finding function to ensure that, indeed, a rational jury could 11 have found beyond a reasonable doubt the essential facts required for a conviction. 12 State v. Baca, 1997-NMSC-059, ¶ 13, 124 N.M. 333, 950 P.2d 776 (internal quotation 13 marks and citation omitted). 14 Although Defendant makes separate sufficiency arguments against each of the 15 two charges, essentially the same evidentiary review is applicable to both his 16 conviction for first-degree murder on an aiding and abetting theory and his conviction 17 for conspiracy to commit first-degree murder. We will therefore review the essential 18 elements which must be proven for each charge and then review the evidence that 19 equally supports both charges. 7 1 Essential Elements of Conspiracy to Commit Murder 2 The conspiracy charge brings together two statutes, the general conspiracy 3 statute and the first-degree murder statute. First-degree murder is a felony statutorily 4 defined as any kind of willful, deliberate and premeditated killing. NMSA 1978, 5 § 30-2-1(A)(1) (1994). The separate crime of conspiracy is defined as knowingly 6 combining with another for the purpose of committing a felony . . . . NMSA 1978, 7 § 30-28-2(A) (1979). 8 The gist of conspiracy in New Mexico is a meeting of the minds to commit a 9 felony. See State v. Deaton, 74 N.M. 87, 89, 390 P.2d 966, 967 (1964). The 10 conspiracy is complete upon the formulation of a plan, whether or not the felonious 11 act is ever consummated. See State v. Gilbert, 98 N.M. 77, 82, 644 P.2d 1066, 1071 12 (Ct. App. 1982). This meeting of the minds is generally demonstrated by 13 circumstantial evidence and not by direct evidence. See Deaton, 74 N.M. at 90, 390 14 P.2d at 968. The agreement in a conspiracy is generally a matter of inference 15 deduced from the facts and circumstances, and from the acts of the person accused 16 done in pursuance of an apparent criminal purpose. Id. at 90, 390 P.2d at 968. The 17 evidence need not show that the parties came together and actually agreed upon a 18 method of operation for the accomplishment of the offense. A mutually implied 19 understanding is sufficient. Id. at 89-90, 390 P.2d at 967-68. Our uniform jury 8 1 instructions, unchallenged in this case, reflect the law in New Mexico that to prove a 2 charge of conspiracy to commit first-degree murder, the evidence must show, by 3 words or acts, that an agreement between Defendant and another person to commit 4 first-degree murder had been made and that Defendant and the other person intended 5 to commit first-degree murder. See UJI 14-2810 NMRA. 6 Essential Elements of Aiding and Abetting First-Degree Murder 7 While a conspiracy is complete upon formation of an agreement to commit a 8 crime, whether or not the substantive crime is ever committed, accessory liability 9 makes a person responsible for actual commission of a substantive criminal offense, 10 no matter what the person s particular role, and a person may be charged with and 11 convicted of the crime as an accessory if he procures, counsels, aids or abets in its 12 commission and although he did not directly commit the crime . . . . NMSA 1978, 13 § 30-1-13 (1972). For accomplice liability, the State must show not only [that a 14 defendant was] aiding in the commission of the killing but also that the defendant 15 intended that the underlying felony be committed and intended the killing to occur 16 or knew that [he][she] was helping to create a strong probability of death or great 17 bodily harm. State v. Fry, 2006-NMSC-001, ¶ 23, 138 N.M. 700, 126 P.3d 516 18 (second and third alteration in original) (quoting UJI 14-2821 NMRA). This intent 19 can be inferred from behavior that encourages the act or informs the confederates that 9 1 the accessory approves of the crime. See State v. Ochoa, 41 N.M. 589, 599, 72 P.2d 2 609, 615 (1937). The two separate requirements, intent by a defendant that another 3 person commit the offense and an act on the defendant s part to cause the other person 4 to commit it, are based on the general principle of criminal culpability that the actus 5 reus element of a crime is distinct from the mens rea element . . . . State v. 6 Schoonmaker, 2008-NMSC-010, ¶ 48, 143 N.M. 373, 176 P.3d 1105 (observing that 7 a conviction for child abuse cannot be sustained in the absence of sufficient evidence 8 of both elements). Thus, for the evidence to be sufficient to support a conviction for 9 aiding and abetting first-degree murder, it must provide a rational basis for a jury to 10 be convinced beyond a reasonable doubt that a murder was committed; that the 11 accused helped, encouraged, or caused it to be committed; and that the accused 12 deliberately intended the murder to take place. See UJI 14-2821 NMRA. 13 With those essential elements of the two conviction offenses in mind, we turn 14 to a consideration of the supporting evidence. 15 Sufficiency of the Evidence to Support Convictions for Conspiracy and Aiding and 16 Abetting First-Degree Murder 17 There was ample evidence from which a reasonable jury could have concluded 18 that Defendant conspired with Jacob Chavez and Michael Martinez to commit one or 19 more murders and that he aided and abetted in the resulting murder of Max Valdez. 10 1 The three had been working as a team bent on random violence throughout the 2 course of the evening and night. The State introduced evidence that Defendant and 3 Jacob Chavez had supported each other in the first confrontation at the hotel. Michael 4 Martinez drew a firearm without provocation against a stranger in the second 5 confrontation at the home of Max Valdez. And all three colluded in deciding to go 6 back together to the Valdez home with loaded weapons to take care of business, 7 after Chavez had threatened to shoot Erik Garcia at the home and after Chavez and 8 Martinez had then unsuccessfully pursued Garcia with guns drawn. This mutual 9 willingness to help each other in their violent attacks supports a rational inference that 10 the three men continued to act with a common purpose later that night. See State v. 11 Gaitan, 2002-NMSC-007, ¶ 27, 131 N.M. 758, 42 P.3d 1207 (noting that the 12 defendant s intent to enlist or encourage the help of his companions in violent 13 situations was relevant to his liability as an accessory). 14 The jury heard testimony that after Erik Garcia eluded Jacob Chavez and 15 Michael Martinez, Defendant met with Chavez and Martinez at a park and then at 16 Chavez s house. The jury heard that Defendant asked his girlfriend for a ride back to 17 Max Valdez s house, demonstrating Defendant s plan to be part of what was to occur 18 there. The jury heard about Defendant s own words that he and the others planned to 19 go back to the Valdez home to take care of business, even after Defendant s 11 1 girlfriend told him that it wasn t worth it. The evidence that Defendant waited 2 outside the murder scene in the idling getaway car after he could not persuade his 3 girlfriend to handle the driver s duties is proof of both the conspiratorial agreement 4 and the substantive act of aiding and abetting. When Chavez and Martinez, the two 5 gunmen, were in the house and Chavez started shooting at occupants in the living 6 room, Martinez shouted to Chavez that It s not them! It s not them! This telling 7 comment indicated that the assailants had come to the Valdez home with two or more 8 planned victims in mind, and from such evidence the jury could conclude that the 9 most likely intended victims were Erik Garcia, whom Chavez and Martinez had 10 pursued with guns drawn before Garcia escaped, and Max Valdez, who had 11 entertained Garcia in his home and who had tried to protect him from harm. And the 12 evidence showed the gunmen were partially successful in their plan to kill them. 13 Although Chavez and Martinez never found Garcia, they successfully hunted down 14 and killed Valdez in the bedroom of his own home. 15 Defendant s conduct after the killings also reflected both his membership in the 16 criminal partnership and his own consciousness of guilt. A defendant s conduct after 17 an alleged crime may corroborate his or her participation in the crime. See State v. 18 Johnson, 2004-NMSC-029, ¶ 64, 136 N.M. 348, 98 P.3d 998 (noting that it is a well 19 accepted principle that any conduct on the part of a person accused of a crime 12 1 subsequent to its commission, which indicates a consciousness of guilt[,] may be 2 received as a circumstance tending to prove that he [or she] committed the act for 3 which he [or she] is charged (internal quotation marks and citations omitted)). After 4 the shootings, Defendant and co-conspirator Michael Martinez holed up together at 5 the hotel, where Defendant s conduct reflected apprehension and an attempt to conceal 6 himself from police. He lied to investigators about what he had done, where he had 7 been, and whom he had been with on the night of the murderous rampage. And of at 8 least equal significance, the jury heard about Defendant s own telling admission to his 9 probation officer after Defendant s girlfriend had refused to testify before the grand 10 jury to many of these facts and after his own charges were resultingly dismissed: I 11 was arrested for murder and I got away with it. 12 All of these facts come together to create a substantial body of evidence from 13 which a reasonable jury could conclude beyond a reasonable doubt that Defendant 14 conspired with Jacob Chavez and Michael Martinez to go to the home of Max Valdez 15 to kill Erik Garcia and Valdez and possibly unknown others, and that he aided and 16 abetted the shooters by encouraging them to go back to the house, by trying to enlist 17 a getaway driver, and finally by taking on that role for himself, waiting outside the 18 crime scene with the engine running for a quick getaway. 19 B. The District Court Did Not Abuse Its Discretion Under Rule 11-403 by 13 1 Admitting Testimony of Defendant s Probation Officer. 2 Defendant argues that the testimony of his probation officer, who told the jury 3 the circumstances of Defendant s probation and the circumstances under which 4 Defendant stated that he got away with [murder], should not have been admitted. 5 Defendant contends that there was insufficient information to support an inference that 6 the got away with it statement referred to this particular case. He also argues that 7 the introduction of the circumstances surrounding the statement, particularly the fact 8 that Defendant was on probation for undisclosed past crimes, was unfairly prejudicial. 9 A trial court s decision to admit evidence under Rule 11-403 is reviewed for 10 abuse of discretion. State v. Otto, 2007-NMSC-012, ¶¶ 9, 14, 141 N.M. 443, 157 P.3d 11 8. An abuse of discretion occurs when the ruling is clearly against the logic and 12 effect of the facts and circumstances of the case[,] . . . clearly untenable[,] or not 13 justified by reason. Id. ¶ 9 (internal quotation marks and citation omitted). 14 The trial judge properly admitted the evidence in question. Under Rule 11-403, 15 [a]lthough relevant, evidence may be excluded if its probative value is substantially 16 outweighed by the danger of unfair prejudice, confusion of the issues or misleading 17 the jury, or by considerations of undue delay, waste of time or needless presentation 18 of cumulative evidence. This determination is left to the sound discretion of the trial 19 court judge, who is given considerable leeway in these necessarily fact-sensitive 14 1 rulings. Otto, 2007-NMSC-012, ¶ 14. The purpose of Rule 11-403 is not to exclude 2 all harmful evidence but instead to guard against the danger of unfair prejudice. 3 Evidence is not unfairly prejudicial simply because it inculpates the defendant. Rather 4 prejudice is considered unfair when it goes only to character or propensity. Otto, 5 2007-NMSC-012, ¶ 16 (internal quotation marks and citations omitted). A trial judge 6 lawfully has the discretion to admit even extremely harmful evidence where its 7 probative value is very high. See, e.g., id. ¶¶ 2-4, 15 (upholding the trial court s 8 decision to admit evidence of the defendant s uncharged sexual acts against a child 9 victim because the evidence was highly probative of absence of mistake or accident). 10 Evidence is relevant if it makes a fact of consequence more or less probable. 11 See Rule 11-401 NMRA. Defendant s statement was a highly relevant [a]dmission 12 by a party-opponent, Defendant himself in this case. See Rule 11-801(D)(2)(a) 13 NMRA. The statement reflects a perception by Defendant that he had been arrested 14 for murder but that he had gotten away with it. There was no information presented 15 to the trial judge that would have indicated Defendant had been arrested and gotten 16 away with more murders than the one in this case. Determining the true meaning of 17 a party s statement is the province of the jury, and it certainly would have been 18 reasonable for the jury to conclude that Defendant meant he got away with the murder 19 at the Valdez house after his charges were dismissed. 15 1 Despite the potential prejudicial effect of allowing the jury to hear the 2 circumstances under which Defendant made the challenged statement, the trial court 3 did not abuse its discretion by admitting those circumstances because they increased 4 the relevance of the statement. It is clear that the State intended to offer the facts that 5 Defendant was on probation when he made the statement and that he made the 6 statement to his probation officer as evidence of the veracity of the statement. It is 7 highly unlikely that Defendant would make up a statement to his own probation 8 officer that he had gotten away with murder if there were no factual basis for his 9 confident statement. 10 It was also important for the jury to know of the probation officer s official 11 responsibilities and relationship to Defendant in order to evaluate the officer s 12 credibility as a reporter of both the statement and the context in which Defendant 13 made it. The evidence Defendant s statement provided was extremely relevant, and 14 the context of its making could not reasonably be ignored or excised. The 15 surrounding facts of Defendant s probation were not admitted to show simply that 16 Defendant was on probation and therefore was a bad person. The context was 17 integrally necessary to the jury s understanding of the significance of Defendant s 18 own words. The judge weighed the possibility that the jury might conclude from the 19 statement that Defendant was a bad person with criminal propensities against the 16 1 probative value of the statement, and the judge admitted the statement appropriately. 2 This is what is required of the judge under Rule 11-403, and we find no abuse of 3 discretion in his result. 4 C. Defendant Was Not Denied Effective Assistance of Counsel. 5 Defendant also claims that he was denied his constitutional right to effective 6 assistance of counsel because his attorney (Counsel) failed to interview his former 7 girlfriend, one of the State s primary witnesses, before trial. 8 To succeed in a claim of ineffective assistance that rises to a constitutional 9 denial, a defendant must show both a deficiency in representation, such that the 10 attorney s conduct fell below that of a reasonably competent attorney, and that there 11 was resulting prejudice to the adequacy of his defense. State v. Grogan, 12 2007-NMSC-039, ¶¶ 10-11, 142 N.M. 107, 163 P.3d 494. The ineffective assistance 13 of counsel inquiry must be highly deferential to counsel s judgment, avoid the 14 distorting effects of hindsight, and take into account all of the circumstances 15 surrounding the defense. See Lytle v. Jordan, 2001-NMSC-016, ¶ 26, 130 N.M. 198, 16 22 P.3d 666. When applying this test, the presumption is that counsel is competent. 17 State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127. An error is not 18 unreasonable if it can be justified as a trial tactic or strategy. State v. Bernal, 19 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. Prejudice is shown when there 17 1 is a reasonable probability that, but for counsel s unprofessional errors, the result of 2 the proceeding would have been different. Schoonmaker, 2008-NMSC-010, ¶ 32 3 (internal quotation marks and citation omitted). 4 When Defendant s former girlfriend testified against him in the State s case in 5 chief, she told the jury that Defendant said he was going back to take care of 6 business. Defendant s girlfriend testified that she told an officer about the statement 7 in an interview. However, it appears from the record that the take care of business 8 statement, as a direct statement of the witness, was on no formal transcripts or 9 documentation of interviews with the witness. The record shows that Counsel was 10 caught by surprise at trial by this statement. Defendant now contends that Counsel s 11 failure to interview the witness or to review her statements prior to trial constituted 12 ineffective assistance. 13 While failure to make adequate pre-trial investigation and preparation may be 14 grounds for finding ineffective assistance of counsel, State v. Barnett, 15 1998-NMCA-105, ¶ 30, 125 N.M. 739, 965 P.2d 323, a defendant must also 16 demonstrate that there is a reasonable probability that but for counsel s 17 unprofessional error, the result of the proceeding would have been different. State 18 v. Hernandez, 115 N.M. 6, 17, 846 P.2d 312, 323 (1993) (internal quotation marks and 19 citation omitted). In conducting the two-part ineffective assistance analysis, this Court 18 1 may consider the prejudice prong first if it more effectively disposes of the ineffective 2 assistance claim. See id. at 16-17, 846 P.2d at 322-23. Accordingly, we turn now to 3 the prejudicial effect of Counsel s failure to conduct a pre-trial interview of 4 Defendant s prior girlfriend. 5 Defendant was not significantly prejudiced by Counsel s failure to interview 6 the witness. While Defendant contends that the failure to interview the witness left 7 Counsel unprepared for an immediate impeachment, Counsel nonetheless reviewed 8 the witness s prior interviews after she testified, and later Counsel impeached her 9 testimony. On cross-examination of the interviewing police detective, Counsel 10 demonstrated to the jury that there was no prior recording or documentation of the 11 witness ever having claimed that she heard Defendant or anyone else discuss a desire 12 to return to the Valdez house to take care of business. While delayed, pointing this 13 fact out constituted an effective impeachment by omission. 14 Counsel then followed up on his impeachment of the girlfriend s testimony in 15 his closing argument, reminding the jury that the statement was not found in any 16 reports or transcripts and was not heard in any recorded interviews. Counsel also 17 explained his theory of the statement, that its conspicuous absence from the interview 18 transcripts and recordings demonstrated the fact that the witness made it up for the 19 first time at trial. Because of this, Counsel s failure to interview the witness 19 1 beforehand would have made little difference in the overall outcome of the trial. Had 2 Counsel more thoroughly prepared for this witness before trial, the only difference at 3 trial would have been an immediate impeachment by omission instead of a delayed 4 one through the investigating officer. Counsel still would have impeached her 5 testimony in the presence of the jury and been able to argue that impeachment s 6 implications in closing, just as he did at trial. 7 Because Defendant cannot demonstrate prejudice from Counsel s failure to 8 interview the witness before trial, we need not consider whether that failure fell below 9 an objectively reasonable standard of representation. Therefore, we must reject 10 Defendant s ineffective assistance of counsel claim. 11 III. CONCLUSION 12 Finding no reversible error, we affirm Defendant s convictions and sentences. 13 IT IS SO ORDERED. 14 15 __________________________________ CHARLES W. DANIELS, Chief Justice 20 1 WE CONCUR: 2 _________________________________ 3 PATRICIO M. SERNA, Justice 4 _________________________________ 5 PETRA JIMENEZ MAES, Justice 6 _________________________________ 7 RICHARD C. BOSSON, Justice 8 _________________________________ 9 EDWARD L. CHà VEZ, Justice 21
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