State v. Lopez

1

STATE OF NEW MEXICO, Plaintiff-Appellee, v. RUBEN LOPEZ, Defendant-Appellant.

No. A-1-CA-40007

Court of Appeals of New Mexico

October 31, 2024

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Matthew Chandler District Court Judge

Raúl Torrez, Attorney General Lee Green, Assistant Solicitor General Santa Fe, NM for Appellee

Bennett J. Baur, Chief Public Defender Bianca Ybarra Assistant Appellate Defender Santa Fe, NM for Appellant

MEMORANDUM OPINION

KRISTINA BOGARDUS, JUDGE

{¶1} Following a jury trial, Defendant Ruben Lopez was convicted of aggravated burglary with a deadly weapon, contrary to NMSA 1978, Section 30-16-4(A) (1963); two counts of aggravated assault with a deadly weapon, contrary to NMSA 1978, Section 30-3-2(A) (1963); and possession of a firearm by a felon, contrary to NMSA 1978, Section 30-7-16 (2019, amended 2022). Defendant now appeals arguing: (1) the district court improperly admitted evidence of jail phone calls; (2) the district court violated his right to confrontation by admitting the preliminary testimony of Magnolia Prince and Adolph Peelle (Victims); (3) he was denied his right to effective assistance counsel; and (4) the district court violated his right to conflict free counsel when it denied his trial counsel's motion to withdraw. We affirm.

BACKGROUND

{¶2} We provide a brief factual background and discuss the facts in more detail as they become relevant to our analysis. Ms. Prince called the police to report that Defendant had entered her and Mr. Peelle's home without consent in Clovis, New Mexico carrying a .22 long barrel rifle. Defendant wore a thick coat, sunglasses, and a beanie to hide the long gun and cover his face-upon entering their home, Defendant pointed the gun at Ms. Prince and Mr. Peelle. According to Ms. Prince, Defendant came to her home to confront her because he believed Ms. Prince had broken into his home and cars.

DISCUSSION

I. Jail Phone Calls

{¶3} Defendant first argues that the district court abused its discretion in admitting jail phone calls he made to Victims. Additionally, he argues that the admission of the phone calls constitutes plain error for a variety of reasons he failed to raise to the district court. According to Defendant, cumulatively, these errors deprived him of his right to a fair trial. We disagree.

{¶4} We begin by addressing the preserved portion of Defendant's argument. When the State sought to admit the jail phone calls, Defendant objected on relevance grounds. The district court overruled Defendant's objection.

{¶5} We review evidentiary rulings for an abuse of discretion. State v. Hughey, 2007-NMSC-036, ¶ 9, 142 N.M. 83, 163 P.3d 470. "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say that the [district] court abused its discretion by its ruling unless we can characterize the ruling as clearly untenable or not justified by reason." State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation omitted). In the context of evidentiary errors, reversal is only justified if an error is harmful. State v. Tollardo, 2012-NMSC-008, ¶ 25, 275 P.3d 110. An error, such as the wrongful admission of evidence, is harmless "when there is no reasonable possibility the error affected the verdict." Id. ¶ 36 (internal quotation marks and citation omitted).

{¶6} "Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence, and . . . the fact is of consequence in determining the action." Rule 11-401 NMRA. Ordinarily, "[r]elevant evidence is admissible." Rule 11-402 NMRA. Here, the State sought admission of the jail phone calls because, it asserted, the phone calls showed Defendant's consciousness of guilt as Defendant discussed the facts underlying the incident and encouraged Victims not to testify at trial. Defendant asserts that the jail phone calls "did not shed light on any element of the crimes charged," however, upon our independent review of the jail phone calls, it is clear that the subject of the calls concerns the underlying incident. While other topics of conversation come up briefly throughout both calls, the content of the phone calls is centered on Defendant discussing both the incident and Victims' intent to testify at trial.

{¶7} For these reasons, we cannot say that the district court abused its discretion by ruling that the jail phone calls were relevant. See State v. Balderama, 2004-NMSC-008, ¶ 23, 135 N.M. 329, 88 P.3d 845 ("All relevant evidence is generally admissible, unless otherwise provided by law."); see also id. ("Any doubt whether the evidence is relevant should be resolved in favor of admissibility.").

{¶8} Next, Defendant argues that the district court's admission of the phone calls constitutes plain error for several reasons. See Rule 11-103(E) NMRA. Because "[p]lain error is an exception to the general rule that parties must raise timely objection to improprieties at trial, . . . it is to be used sparingly." State v. Dylan J., 2009-NMCA-027, ¶ 15, 145 N.M. 719, 204 P.3d 44 (internal quotation marks and citation omitted). We will not reverse based on plain error unless an error "affect[ed] a substantial right" of the defendant. Rule 11-103(E). In other words, such erroneous admission of such evidence must "constitute[] an injustice that create[s] grave doubts concerning the validity of the verdict." State v. Montoya, 2015-NMSC-010, ¶ 46, 345 P.3d 1056 (internal quotation marks and citation omitted).

{¶9} Particularly, Defendant calls attention to various statements he made involving his mother's health, a debt owed to Ms. Prince for a motorbike, plea offers made by the State, his being "strung out" in the past, and the possible sentence he faced. Even if we were to assume without deciding that the district court's admission of these statements was erroneous, Defendant has failed to demonstrate that the admission of such evidence calls the validity of the verdict into question. See State v. Muller, 2022-NMCA-024, ¶ 43, 508 P.3d 960 (providing that the burden is on the defendant asserting plain error). Defendant merely asserts that "[o]nce the jail calls were played for the jury it was clear they had no probative value and only served to present the jury with inadmissible character evidence and improper information about plea negotiations and the consequences of their verdict." Defendant contends that because the district court permitted the jury to hear such evidence "without objection and without a curative instruction, they became evidence the jury could fully consider when deciding [his] guilt or innocence." On appeal, Defendant simply has not demonstrated that "admission of the testimony constituted an injustice that created grave doubts concerning the validity of the verdict." State v. Garcia, 2019-NMCA-056, ¶ 10, 450 P.3d 418 (internal quotation marks and citation omitted).

II. Preliminary Hearing Testimony

{¶10} Defendant also argues that the district court violated his constitutional right to confrontation by admitting the preliminary hearing testimony of Victims. Defendant objected to the preliminary hearing testimony at trial based on confrontation grounds. "Questions of admissibility under the Confrontation Clause are questions of law, which [appellate courts] review de novo." State v. Aragon, 2010-NMSC-008, ¶ 6, 147 N.M. 474, 225 P.3d 1280, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275 P.3d 110.

{¶11} "Under the Confrontation Cause, an out-of-court statement that is both testimonial and offered to prove the truth of the matter asserted may not be admitted unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant." State v. Smith, 2016-NMSC-007, ¶ 42, 367 P.3d 420 (internal quotation marks and citations omitted). In making a finding that a witness is unavailable, the district court "may take into consideration the totality of the circumstances" when determining if the state "was diligent in attempting to produce a witness for trial." State v. Lopez, 1996-NMCA-101, ¶ 25, 122 N.M. 459, 926 P.2d 784.

{¶12} Defendant argues that the district court "abused its discretion by finding the witnesses unavailable" because although both witnesses had been served with subpoenas, "the State made no effort to enforce them by requesting material witness warrants or having the sheriff's office secure their presence at trial." See Rule 11-804(A)(5)(a) NMRA (defining "[u]navailability as a witness" when a declarant "is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure . . . the declarant's attendance, in the case of a hearsay exception under Rule 11-804(B)(1) or (5)"). We disagree.

{¶13} Here, as Defendant acknowledges, the State filed its notice of intent to use preliminary hearing testimony six days before trial. In the notice of intent, the State asserted that Victims would not allow themselves to be served and that it had obtained jail phone calls in which Defendant called both Victims and persuaded them not to testify at trial. According to the State, after the first trial setting was continued due to an undocumented illness suffered by Ms Prince, both she and Mr. Peelle became very uncooperative-Ms. Prince contacted the State's victim advocate and stated that she no longer wished to...