State v. Constelon ( 2015 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 34,265
5 FRANK COSTELON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
8 Fernando R. Macias, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jorge A. Alvarado, Chief Public Defender
13 Tania Shahani, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 GARCIA, Judge.
18 {1} We now grant Defendant’s motion for rehearing, withdraw the opinion filed on
1 September 29, 2015 and substitute the following in its place. Frank Emanuel Costelon
2 (Defendant) appeals from the order dismissing his motion to set aside the judgment
3 and sentence convicting him for distribution of marijuana. This Court’s first notice
4 proposed to affirm. Defendant filed a memorandum opposing this Court’s proposed
5 disposition and moved to amend his docketing statement. Having given due
6 consideration to Defendant’s arguments in opposition, we affirm. Moreover,
7 Defendant’s motion to amend his docketing statement is DENIED.
8 {2} Defendant continues to argue that the district court erred in denying his Rule
9 1-060 NMRA motion to set aside the judgment and conviction on grounds that he was
10 denied effective assistance of counsel when his trial counsel failed to file a motion to
11 suppress evidence after contraband was found on his person while he was subjected
12 to a strip search at the Doña Ana County Detention Center. This Court’s first notice
13 proposed to affirm on the basis of the district court’s findings that Defendant was not
14 strip searched, but rather, the contraband found taped to his underarms was visually
15 observed while he was changing clothes during the booking process. [RP 357, 370,
16 454] See Duncan v. Kerby, 1993-NMSC-011, ¶ 7, 115 N.M. 344, 851 P.2d 46617 (recognizing that we review the district court’s factual findings to determine if
18 substantial evidence supports the court’s findings).
19 {3} The memorandum in opposition relies on Defendant’s version of the facts.
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1 Assuming these facts were properly before the district court when it considered the
2 motion, the district court judge found that Defendant was not strip searched, and the
3 record supports this finding. [RP 357, 370, 454] Thus, the district court apparently
4 concluded that Defendant’s testimony was not credible, and this Court defers to the
5 district court on matters of credibility. See State v. Salas, 1999-NMCA-099, ¶ 13, 127
6 N.M. 686, 986 P.2d 482 (recognizing that it is for the fact-finder [in this case, the
7 judge] to resolve any conflict in the testimony of the witnesses and to determine where
8 the weight and credibility lay). Given that it is for the trial court to weigh evidence and
9 assess credibility, we affirm the district court’s decision that trial counsel was not
10 ineffective for failing to file a motion to suppress. See State v. Chandler, 1995-
11 NMCA-033, ¶ 35, 119 N.M. 727, 895 P.2d 249 (indicating that trial counsel is not
12 ineffective for failing to make a motion that is not supported by the record).
13 {4} Defendant has also moved this Court to amend his docketing statement pursuant
14 to Rule 12-208(E) NMRA to add a new issue: whether trial counsel was ineffective
15 on remand. The essential requirements to show good cause for our allowance of an
16 amendment to an appellant’s docketing statement are: (1) that the motion be timely,
17 (2) that the new issue sought to be raised was either (a) properly preserved below or
18 (b) allowed to be raised for the first time on appeal, and (3) the issues raised are
19 viable. See State v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91,
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1 overruled on other grounds by State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817
2 P.2d 730. For the reasons that follow, we deny Defendant’s motion to amend the
3 docketing statement on the ground that the issue raised is not a viable appellate issue.
4 {5} Defendant argues that trial counsel was ineffective on remand for failing to
5 investigate if Defendant’s claim was actually meritorious. In particular, Defendant
6 asserts that trial counsel failed to: (1) investigate Dona Ana County Detention
7 Center’s policies and procedures at the time of Defendant’s arrest; (2) subpoena
8 previous trial counsel; (3) retain an expert witness to testify about what a reasonably
9 competent attorney would have done in similar circumstances; or (4) raise
10 Defendant’s Brady v. Maryland, 373 U.S. 83 (1963), violation for withholding
11 evidence. [DS 16] However, because we affirm the district court’s finding that
12 Defendant was not strip searched, the facility’s policies and procedures and case law
13 regarding the propriety of strip searches are irrelevant.
14 {6} Insofar as Defendant argues the State withheld evidence from him in 2003, we
15 are not persuaded Defendant presents a viable issue. [DS 17] Defendant contends that
16 the State failed to disclose an incident report in 2003 that was later provided to him
17 through an open records request. [DS 18] Defendant asserts that the initial discovery
18 provided by the State contained Bates-stamped page numbers, and that a gap existed
19 in the numbering where the incident report was likely taken out and deliberately
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1 withheld by the prosecutor. [DS 18] Defendant does not indicate what information
2 was contained in the alleged incident report that prejudiced him to such a degree that
3 reversible error occurred. See State v. Hoxsie, 1984-NMSC-027, ¶ 8, 101 N.M. 7, 677
4 P.2d 620 (“In the absence of prejudice, there is no reversible error.”), rev’d on other
5 grounds, Gallegos v. Citizens Ins. Agency, 1989-NMSC-055, 108 N.M. 722, 779 P.2d
6 99.
7 {7} Given that Defendant has failed to demonstrate a viable appellate issue, his
8 motion to amend the docketing statement is DENIED. With respect to the issues
9 raised in Defendant’s original docketing statement and argued in his memorandum in
10 opposition, we affirm for the reasons stated above and in this Court’s notice of
11 proposed disposition.
12 {8} For all of these reasons and those stated in this Court’s first notice, we affirm.
13 {9} IT IS SO ORDERED.
14 ________________________________
15 TIMOTHY L. GARCIA, Judge
16 WE CONCUR:
17 _______________________________
18 MICHAEL D. BUSTAMANTE, Judge
19 _______________________________
20 JONATHAN B. SUTIN, Judge
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