State v. Gallegos

STATE OF NEW MEXICO, Plaintiff-Appellee, v. TONY GALLEGOS, Defendant-Appellant.

No. S-1-SC-37313

SUPREME COURT OF THE STATE OF NEW MEXICO

January 28, 2021

This decision of the Supreme Court of New Mexico was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Supreme Court.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY

James Lawrence Sanchez, District Judge

L. Helen Bennett, P.C.

Linda Helen Bennett

Albuquerque, NM

Amavalise F. Jaramillo

Tome, NM

Bennett J. Baur, Chief Public Defender

C. David Henderson, Appellate Defender

Santa Fe, NM

for Appellant

Hector H. Balderas, Attorney General

Walter M. Hart III, Assistant Attorney General

Santa Fe, NM

for Appellee

DECISION

BACON, Justice.

{1} Defendant Tony Gallegos appeals his life sentence directly to this Court pursuant to Rule 12-102(A)(1) NMRA, raising two issues: (1) ineffective assistance of counsel stemming from his attorney's potential conflict of interest, and (2) sufficiency of the evidence. For the ineffective assistance of counsel issue, Defendant argues that his attorney, Amavalise Jaramillo, had an actual conflict of interest created by Jaramillo's previous unrelated representation of the State's key witness in this case, Cody Cruz. This conflict, according to Defendant, resulted in a curtailed cross-examination of Cruz, whose testimony was crucial to the State's theory of the case. The sufficiency of the evidence argument, raised pursuant to State v. Franklin and State v. Boyer,¹ asserts that Cruz was not a reliable witness, and that his allegedly unreliable testimony cannot support Defendant's convictions.

{2} We affirm Defendant's convictions.² As to Defendant's ineffective assistance of counsel claim, we find the record wanting for information to support Defendant's argument. While briefing certainly illuminates a potential conflict of interest, the record lacks critical facts to establish an actual conflict of interest was created by Jaramillo's representation of Cruz and subsequent representation of Defendant. We stress, however, that Defendant's ineffective assistance of counsel claim is more appropriately suited for a habeas corpus petition, wherein Defendant can develop a factual record regarding Jaramillo's potential conflict of interest.

I. RELEVANT BACKGROUND

A. Factual Background

{3} On the afternoon of April 24, 2014, Defendant, Cruz, and Defendant's cousin, Phillip Chavira, drove to the Los Lunas residence of Patrick Chavez (Victim). The three men planned to steal marijuana and other valuables from Victim's house. According to Cruz, the original plan was to "go over [to Victim's house] beforehand and see if anybody was home. And if nobody was at the residence, then we could break in and take the items or any valuables." When the three men arrived at Victim's residence, they noticed apparent signs that people were inside the house. Despite indications the house was occupied, Defendant disregarded the original plan because "he didn't want to go out there for nothing." Defendant's new plan was that Cruz and Chavira were to wait outside the house while Defendant entered the house and subdued any individuals inside; once Defendant accomplished this, Cruz would enter the house and steal items. Cruz protested, raising concerns about the house's occupants, but Defendant nevertheless proceeded.

{4} Defendant casually approached the front door of the house, knocked, and called out Victim's name. Victim and Victim's brother were inside the house. Victim let Defendant inside the house. Once inside, Defendant drew a handgun and demandedthat Victim hand over marijuana. Victim responded by reaching for the handgun, and a struggle for the weapon ensued. Defendant shot Victim multiple times in the torso and legs, killing him.

{5} Upon hearing the shooting, Cruz, who was outside the house, fled on foot down the street. Eventually, Defendant and Chavira, who were driving, caught up to Cruz and ordered him to get into their vehicle. Cruz and Chavira asked Defendant if he had shot Victim, to which Defendant responded affirmatively, but stated he was unsure if Victim was dead (which, in fact, he was).

B. Trial

{6} Defendant's three-day trial began on December 5, 2017. The State called eleven witnesses. Of those eleven witnesses, eight represented either law enforcement or medical expertise. One witness was a friend of Defendant who testified that Defendant had admitted to shooting Victim in the leg. Two of the witnesses, Cruz and Victim's brother, were present at the time of the shooting. While Victim's brother was in the house at the time of the shooting, he testified he was hiding at the time and could only provide a rough description of the shooter. Cruz, however, identified Defendant as the shooter and provided significant testimony incriminating Defendant's role in the shooting.

{7} In addition to testimonial evidence, the State presented evidence of Defendant's DNA on a fencepost outside of Victim's house. While bullets recovered from the scene were determined to be from the same firearm, the firearm itself was not found. Cruz's testimony, therefore, was critical in proving the State's theory that Defendant had shot Victim.

{8} The jury convicted Defendant of: (1) accessory to felony murder in the first degree, contrary to NMSA 1978, Section 30-2-1(A)(2) (1994) and NMSA 1978, Section 30-1-13 (1972); (2) attempted robbery, contrary to NMSA 1978, Section 30-16-2 (1973) and NMSA 1978, Section 30-28-1 (1963); and (3) conspiracy to commit armed robbery, contrary to Section 30-16-2 and NMSA 1978, 30-28-2 (1979). The district court entered judgment and sentenced Defendant to life imprisonment for the accessory to murder conviction.

C. What the Record Establishes Regarding Jaramillo's Representation of Cruz

{9} Initially, Public Defender Michael Rosenfield represented Defendant. On December 2, 2015, however, Jaramillo moved to substitute as private counsel for Defendant. That same motion noted Rosenfield's objection to Jaramillo representing Defendant. Specifically, Rosenfield opposed the motion because he believed Jaramillo's representation of Defendant would be a conflict with Jaramillo's previous representation of Cruz.

{10} The district court held a hearing on the matter on January 22, 2016. During the hearing, Rosenfield stated his office's investigator had learned of Jaramillo's previousrepresentation of Cruz. The investigator had purportedly learned that "Cruz's father told [the investigator] that Mr. Cruz went to talk to Mr. Jaramillo about his involvement as a State witness in the case against [Defendant]." Rosenfield voiced his concerns that Jaramillo might have a conflict of interest between protecting Cruz's interests and cross-examining him at trial.

{11} Jaramillo responded by stating there was not a conflict because there was no adverse representation to Defendant or Cruz, nor was there a violation of Rule 16-107 NMRA. Jaramillo noted his representation of Cruz was for a minor matter where Cruz had allegedly stolen property from a local middle school. Jaramillo assured the district court that Cruz's case was over. Further, Jaramillo acknowledged that he had interviewed Cruz regarding the shooting of Victim, but that he had told Cruz that he was "interviewing him as [Defendant's] lawyer, not as [Cruz's] lawyer." The State did not take a position on the matter.

{12} The district court, having considered Rosenfield's statements and Jaramillo's assessment, concluded that Jaramillo did not have a conflict. The district court did, however, note its concerns about the appearance of impropriety. Nevertheless, the district court relied on Jaramillo's judgment that there was not a conflict, and reminded Jaramillo of his "burden as an officer of the court to make sure [he did not] have a conflict." The district court therefore allowed Jaramillo to substitute as counsel.

II. DISCUSSION

A. The Record Does Not Support Defendant's Claim for Ineffective Assistance of Counsel; His Claim is Better Suited for a Habeas Corpus Petition

1. Standard of review

{13} Claims of ineffective assistance of counsel are reviewed de novo. See, e.g., State v. Mosley, 2014-NMCA-094, ¶ 18, 335 P.3d 244. A challenge to a district court's grant of substitution of counsel is reviewed for an abuse of discretion. See State v. Dyke, 2020-NMCA-013, ¶ 12, 456 P.3d 1125.

2. Relevant law regarding ineffective assistance of counsel due to a conflict

{14} A criminal defendant charged with a felony has a Sixth Amendment right to have the effective assistance of an attorney. Strickland v. Washington, 466 U.S. 668, 692 (1984), superseded on other grounds by Antiterrorism and Effective Death Penalty Act of 1996, PL 104-132, 110 Stat. 1214 (1996); State v. Padilla, 2002-NMSC-011, ¶ 11, 132 N.M. 247, 46 P.3d 1247. Subsumed within the Sixth Amendment's right to counsel is the guarantee that such counsel is free from conflict. State v. Sosa, 1997-NMSC-032, ¶ 20, 123 N.M. 564, 943 P.2d 1017 ("The right to effective assistance of counsel free from conflicts of interest is guaranteed by the Sixth Amendment of the United States Constitution."), abrogated on other grounds by State v. Porter, 2020-NMSC-020, ___ P.3d ___,; State v. Martinez, 2001-NMCA-059, ¶ 24, 130 N.M. 744, 31 P.3d 1018 (noting the Sixth Amendment guarantees "the right to counsel's undivided loyalty"). "Itis well established in New Mexico that trial counsel representing a defendant has a duty to avoid a conflict of interest." State v. Santillanes, 1990-NMCA-035, ¶ 6, 109 N.M. 781, 790 P.2d 1062.

{15} Generally, a prima facie case of ineffective assistance of counsel requires a defendant to show that their attorney's performance was deficient and that the deficient performance prejudiced the defense. See, e.g., State v. Sloan, 2019-NMSC-019, ¶ 33, 453 P.3d...