State v. Moore ( 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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,779
10 HERBERT MOORE,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY
13 Matthew Reynolds, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Carlos Ruiz de la Torre, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 WECHSLER, Judge.
1 Defendant appeals his convictions for two counts of trafficking
2 methamphetamine, solicitation to distribute, and conspiracy to manufacture. We
3 proposed to affirm his convictions. Defendant has responded with an opposition to
4 our proposal, along with a motion to amend the docketing statement to assert
5 ineffective assistance of trial counsel. We have considered Defendant’s arguments
6 and, finding them unpersuasive, we affirm.
7 Defendant continues to argue that the district court erred in denying his motion
8 for change of venue. He asserts that the reason given for the denial, failure to file an
9 affidavit as required by NMSA 1978, Section 38-3-3(B) (2003), was in error. He
10 points out that the motion filed by counsel included the reasons why Defendant could
11 not get a fair trial in Estancia. He argues that the motion was in the nature of an
12 affidavit since an attorney is bound as an officer of the court to allege only those
13 matters he believes to be true and correct. See Rule 16-301 NMRA. Thus, he argues,
14 there was an affidavit as required by statute.
15 However, even if we were to equate counsel’s allegations with the affidavit
16 required by statute, we would not find error here. As we noted in our calendar notice,
17 the district court in denying the motion allowed Defendant the opportunity to file
18 another motion with an affidavit. [RP 96] In so doing, the district court addressed the
19 specifics of what it expected regarding allegations of prejudice to Defendant. [Id.] The
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1 district court was clear that it needed facts specific to this particular case, not
2 Defendant’s previous case. Thus, we conclude that although the order denying the
3 change of venue states that the reason was lack of an affidavit as required by statute,
4 the district court correctly denied the motion for failure to present sufficient facts to
5 support a change of venue for this case. See State v. Gallegos, 2007-NMSC-007, ¶ 26,
6 141 N.M. 185, 152 P.3d 828 (stating that an appellate court will affirm a district
7 court’s decision if it is right for any reason, as long as it is not unfair to the appellant).
8 We conclude that the district court did not err in denying the motion for change of
9 venue.
10 Insofar as Defendant contends that the district court was required to change
11 venue upon his first motion, State v. House, 1999-NMSC-014, ¶ 29, 127 N.M. 151,
12 978 P.2d 967, we note that the district court sought evidence in support of Defendant’s
13 motion. [RP 95-96] Moreover, the decision to change venue was left to the sound
14 discretion of the district court. NMSA 1978, § 38-3-5 (1929). We cannot say that the
15 district court abused its discretion in its decision.
16 Further, as we pointed out in our calendar notice, Defendant has not shown that
17 he was denied a fair and impartial trial. Thus, his claim fails for lack of a showing of
18 prejudice. See House, 1999-NMSC-014, ¶ 104.
19 Defendant further continues to argue that the district court erred in denying his
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1 motion to suppress evidence obtained pursuant to a search warrant. He contends that
2 the affidavit for search warrant did not establish probable cause because it was based
3 on allegations from an unreliable confidential informant. Defendant argues that when
4 an affidavit for search warrant is based on information from a confidential informant,
5 the affidavit must show the basis for believing the informant and a basis for
6 concluding that the informant gathered the information of illegal activity in a reliable
7 fashion. State v. Cordova, 109 N.M. 211, 214, 784 P.2d 30, 33 (1989). He argues
8 that those factors were not satisfied here. We disagree.
9 The affidavit for search warrant states that the informant is not “working off
10 charges” and is a concerned citizen. [RP 33] The affidavit then describes the activity
11 occurring on Defendant’s rural property. [Id.] It also describes how Defendant and
12 others go to different stores and buy large amounts of pseudoephedrine. [Id.]
13 Contrary to Defendant’s assertion, the affidavit does not rely solely on the information
14 from the informant. It includes information regarding law enforcement’s verification
15 of the information, in particular the purchase of pseudoephedrine. [RP 34]
16 Defendant argues that the purchase of pseudoephedrine is not illegal. We agree,
17 when the drug is bought for personal use. However, it appears here that the amounts
18 being purchased by Defendant at different stores at the same time were inconsistent
19 with personal use. Further, pseudoephedrine is an immediate precursor to
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1 methamphetamine. Thus, its purchase in large amounts is not consistent with innocent
2 activity. Cf. State v. Nyce, 2006-NMSC-026, ¶¶ 16-17, 139 N.M. 647, 137 P.3d 5873 (distinguishing between precursors and ingredients and acknowledging that purchase
4 of legal product in large amounts may give rise to probable cause), limited on other
5 grounds by State v. Williamson, 2009-NMSC-039, ¶ 29, 146 N.M. 488, 212 P.3d 376.
6 We conclude that the affidavit for search warrant contained sufficient reliable
7 information to establish probable cause.
8 Defendant additionally continues to argue that the identity of the confidential
9 informant should have been revealed. As support for his argument, he contends that
10 the affidavit for search warrant did not contain enough information to establish the
11 basis of the informant’s information and that he needed to know whether the
12 informant was biased against him. Defendant notes that many of the witnesses at trial
13 were either on probation, had been granted witness immunity, or recently pled guilty
14 to reduced sentences. He then conjectures that if one of those witnesses was the
15 informant, then the informant’s information was compromised. We rejected a similar
16 argument in State v. Campos, 113 N.M. 421, 424-25, 827 P.2d 136, 139-40 (Ct. App.
17 1991), rev’d on other grounds, 117 N.M. 155, 870 P.2d 117 (1994). Defendant does
18 not explain why we should treat his case differently.
19 As we noted above, the confidential informant’s information did not provide
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1 the sole basis for the affidavit for search warrant. Thus, Defendant’s claim that he
2 needed to know the informant’s motivation is undermined by the independent
3 information obtained by law enforcement. We conclude that the district court did not
4 err in refusing to order the State to disclose the confidential informant.
5 Defendant also continues to argue that the district court should have granted a
6 directed verdict on the charges at the close of the State’s case. The question raised by
7 a directed verdict motion is sufficiency of the evidence. See State v. Armijo, 1997-
8 NMCA-080, ¶ 16, 123 N.M. 690, 944 P.2d 919. Defendant argues that the State’s
9 case was made in large part through the testimony of unreliable witnesses—
10 methamphetamine users and traffickers, all with prior felonies. The credibility of
11 these witnesses is left to the jury. See State v. Gipson, 2009-NMCA-053, ¶ 12, 146
12 N.M. 202, 207 P.3d 1179. The testimony of these witnesses along with other evidence
13 was sufficient to establish the crimes charged.
14 Defendant cites to his testimony and that of his sister to support his claim that
15 the evidence was insufficient. However, the motion for directed verdict was made
16 before that testimony was presented. Furthermore, the defense testimony simply
17 created conflicting evidence that the jury was required to resolve. As we have often
18 stated, the jury is not required to accept the defendant’s version of events. State v.
19 Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (filed 1998). We conclude
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1 that the evidence was sufficient to support the jury verdicts.
2 Finally, in his motion to amend the docketing statement, Defendant seeks to
3 argue that trial counsel was ineffective. On such a claim, Defendant must show that
4 counsel’s performance fell below that of a reasonable competent attorney and that the
5 deficient performance prejudiced his case. State v. Plouse, 2003-NMCA-048, ¶ 6, 133
6 N.M. 495, 64 P.3d 522. We do not second guess the trial tactics and strategy of
7 counsel. See Lytle v. Jordan, 2001-NMSC-016, ¶ 43, 130 N.M. 198, 22 P.3d 666.
8 Here, the actions of defense counsel that Defendant asserts were incompetent are
9 matters of tactics and strategy. See State v. Stenz, 109 N.M. 536, 538, 787 P.2d 455,
10 457 (Ct. App. 1990) (“A trial counsel is not incompetent for failing to make a motion
11 when the record does not support the motion.”); State v. Orosco, 113 N.M. 789, 797,
12 833 P.2d 1155, 1163 (Ct. App. 1991) (“The decision whether to call a witness is a
13 matter of trial tactics and strategy within the control of trial counsel.”); State v.
14 Rodriguez, 107 N.M. 611, 615, 762 P.2d 898, 902 (Ct. App. 1988) ( stating that
15 decisions concerning objections are considered to be in the area of trial tactics and
16 ineffective assistance is not necessarily established by showing unsuccessful trial
17 tactics). Because those instances of conduct asserted by Defendant to be incompetent
18 fall within the ambit of trial tactics and strategy, we decline to grant the motion to
19 amend. See State v. Ibarra, 116 N.M. 486, 490, 864 P.2d 302, 306 (Ct. App. 1993)
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1 (stating that issues raised in motions to amend must be viable).
2 For the reasons stated herein and in our notice of proposed disposition, we
3 affirm Defendant’s convictions.
4 IT IS SO ORDERED.
5 ______________________________
6 JAMES J. WECHSLER, Judge
7 WE CONCUR:
8 _______________________________
9 CYNTHIA A. FRY, Chief Judge
10 _______________________________
11 JONATHAN B. SUTIN, Judge
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