State v. Riggs ( 2010 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,569
10 MELVIN LEE RIGGS,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
13 Lisa C. Schultz, District Judge
14 Gary K. King, Attorney General
15 Margaret E. McLean, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 The Law Offices of Nancy L. Simmons, P.C.
19 Nancy L. Simmons
20 Albuquerque, NM
21 for Appellant
22 MEMORANDUM OPINION
23 WECHSLER, Judge.
1 Defendant appeals his convictions for larceny, criminal damage to property, and
2 conspiracy to commit criminal damage to property, claiming that counsel was
3 ineffective for failing to find and call a witness that Defendant claimed corroborated
4 his defense. In our notice, we proposed to affirm. Defendant has timely responded.
5 We have considered his arguments and, finding them unpersuasive, we affirm.
6 In our notice, we proposed to conclude that Defendant had failed to make a
7 prima facie showing of ineffective assistance of counsel. We pointed out that a habeas
8 corpus proceeding was the better route for developing his claim. In his memorandum
9 in opposition, Defendant urges that we assign the case to the general calendar so as
10 to have access to transcripts that might offer the “possibility” that the full record
11 would yield a prima facie case. [MIO 3] This Court does not assign cases to the
12 general calendar on possibility that the record might show something different from
13 the recollections of counsel. See State v. Sheldon, 110 N.M. 28, 29, 791 P.2d 479, 480
14 (Ct. App. 1990) (“It has long been recognized by this [C]ourt that the appellate rules
15 do not allow appellate counsel to pick through the record for possible error.”).
16 The record establishes that Defendant’s defense was that Ms. Brown had hired
17 him to remove the copper tubing that he was alleged to have stolen. The record also
18 establishes that Defendant told his counsel that there was another person who had
19 been told by Ms. Brown that she had authority to sell copper tubing from the lot. The
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1 record also establishes that counsel did not track down the witness or call him to
2 testify at trial.
3 We do not believe that this establishes a prima facie case of ineffective
4 assistance of counsel. As we stated in our calendar notice, calling witnesses is a
5 matter of trial tactics and strategy. State v. Orosco, 113 N.M. 789, 797, 833 P.2d
6 1155, 1163 (Ct. App. 1991), aff’d, 113 N.M. 780, 788, 833 P.2d 1146, 1154 (1992).
7 We recognize that there may be situations where the failure to call a witness necessary
8 to the defense establishes a prima facie case of ineffective assistance of counsel. See
9 State v. Aragon, 2009-NMCA-102, ¶¶ 9, 18-19, 147 N.M. 26, 216 P.3d 27610 (concluding that the defendant had made a prima facie case where counsel had failed
11 to locate an expert to support the defense).
12 We do not believe that this is such a case. It appears that Defendant’s claim
13 regarding being hired by Ms. Brown to remove the copper tubing was presented to the
14 jury. [DS 2] Ms. Brown testified, and defense counsel had the opportunity to cross-
15 examine her. Another witness testifying about a previous instance of Ms. Brown
16 hiring someone to remove copper tubing would have been corroborative evidence.
17 We are not convinced by Defendant’s characterization of this witness as exculpatory.
18 The witness was nothing more than corroborative of Defendant’s claim that he
19 thought he had been hired to remove the copper tubing. Counsel’s decision not to call
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1 a witness to corroborate the defense is tactical. Thus, we cannot say that it was
2 incompetent.
3 Further, we do not see how Defendant was prejudiced by the failure to call the
4 witness. Defendant has not shown that the result of the trial would have been
5 different. Rather, there is a very real probability that the result would have been the
6 same, as the jury could have disbelieved the witness as well as Defendant regarding
7 Ms. Brown’s role in the crime.
8 Without a showing of incompetent counsel and prejudice to the defense,
9 Defendant has failed to make a prima facie showing of ineffective assistance of
10 counsel. As we stated in our notice, we believe that a habeas corpus proceeding is the
11 better route to take on this claim. The claimed error here appears to implicate tactical
12 decisions made by counsel that are best evaluated during habeas corpus proceedings,
13 where trial counsel can provide testimony. State v. Bernal, 2006-NMSC-050, ¶ 35,
14 140 N.M. 644, 146 P.3d 289.
15 Therefore, for the reasons stated herein and in the notice of proposed
16 disposition, we affirm.
17 IT IS SO ORDERED.
18 _______________________________
19 JAMES J. WECHSLER, Judge
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1 WE CONCUR:
2 __________________________________
3 RODERICK T. KENNEDY, Judge
4 __________________________________
5 TIMOTHY L. GARCIA, Judge
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