State v. Dirickson ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39770
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MICHAEL SHAINE DIRICKSON,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Angie K. Schneider, District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Leland M. Churan, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
MEDINA, Judge.
{1} Defendant Michael Dirickson was convicted of possession of methamphetamine,
contrary to NMSA 1978, Section 30-31-23(E) (2011, amended 2021). Defendant argues
on appeal: (1) his counsel was ineffective for failing to move to suppress evidence; and
(2) the evidence presented was insufficient to support his conviction. We affirm.
BACKGROUND
{2} The following facts are based on evidence presented during Defendant’s trial. On
February 3, 2018, a clerk from a Giant gas station called the Alamogordo Police
Department and reported that a man was slumped over in the driver’s seat of a vehicle
that had been parked in front of the station for multiple hours. Officer Phillip Villarreal
responded to the call at approximately 4:00 a.m. in the morning. Upon arriving at the
Giant gas station, Officer Villarreal parked his patrol car behind Defendant’s vehicle,
observed Defendant asleep, and slumped over in the driver’s seat. He also noted that
Defendant’s dog was in the back passenger seat.
{3} Officer Villarreal knocked on the driver’s side window of the vehicle to awaken
and make contact with Defendant. The interaction between Officer Villarreal and
Defendant was recorded on the Officer’s lapel camera. Upon waking Defendant, Officer
Villarreal told Defendant to roll down his window and Defendant responded by opening
his door. Officer Villarreal asked Defendant, “What’s going on?” to which Defendant
replied that he had been waiting for his brother. Officer Villarreal asked Defendant if he
needed to be worried about any weapons. Defendant replied that he had a pistol, and
pointed to the passenger floorboard of the vehicle. In order to ensure his safety, Officer
Villarreal instructed Defendant to step out of the vehicle to separate him from the
weapon. After Defendant stepped out of the vehicle, Officer Villarreal asked Defendant
to confirm that he did not have the pistol on his person and then asked for identification,
which Defendant produced.
{4} At this point Officer Villarreal informed Defendant that the store clerk was
concerned and had requested the police check on him to ensure that he was not
intoxicated or otherwise in distress. Officer Villarreal then called in for a license check,
which revealed two active arrest warrants. Defendant was placed in handcuffs and
asked if he had anything on his person that the officer needed to be concerned about,
such as knives or needles. Defendant replied, “I don’t know.”
{5} Officer Villarreal then conducted a search of Defendant during which he
discovered a pistol in the inner pocket of Defendant’s jacket and a bag of a white,
crystalized substance in the front, left pocket of Defendant’s pants. Based on his
experience, Officer Villarreal believed the substance in the bag to be
methamphetamine. Officer Villarreal sought the opinion of another officer on scene, who
had arrived to assist Officer Villarreal at some point during the encounter, and confirmed
that the substance looked like methamphetamine. The second officer did not testify at
trial. Defendant and the bag of suspected methamphetamine were transported to the
police department where the substance was submitted to evidence pending later
testing.
{6} A forensic scientist with the New Mexico Department of Public Safety, testified
that the substance tested positive for methamphetamine. The jury convicted Defendant
of possession of methamphetamine. This appeal followed.
DISCUSSION
{7} Defendant argues that Officer Villarreal was not acting as a community caretaker
when interacting with him because he failed to ask about Defendant’s well-being and
continued a criminal investigation after he learned Defendant did not need assistance.
Because of this, Defendant asserts Officer Villarreal impermissibly seized him when he
parked his patrol car behind Defendant’s car, woke him, and asked Defendant to get out
of the vehicle without reasonable suspicion. Defendant therefore alleges that the
evidence used to convict him was obtained unlawfully and should have been
suppressed. Defendant makes these arguments under a claim of ineffective assistance
of counsel, given his attorney did not file a motion to suppress evidence. We conclude
Defendant has failed to establish a prima facie case of ineffective assistance of counsel.
{8} As a preliminary matter, we briefly address the State’s argument that because
Defendant was represented by the Law Offices of the Public Defender during the course
of the proceedings below and now on appeal, Defendant must first comply with this
Court’s order in State v. Jones, 1994-NMCA-045, 119 N.M. 53, 888 P.2d 935. In Jones,
this Court ordered the appellate public defender for the Law Office of the Public
Defender to file a waiver of conflict of interest by a defendant where the appellate public
defender argues ineffective assistance of counsel on appeal where counsel below was
also a public defender for the Law Office of the Public Defender. Id. The State gives no
description of how a conflict exists here, other than to say that a public defender
appeared in the case below. The State requested Defendant “file a waiver in this Court,
make a showing as to why no conflict exists, or file a motion to have his counsel
withdraw.”
{9} Jones applies when there is a facial conflict between the appellate public
defender and the public defender below due to both attorneys working in the same
office. See id. Jones does not stand for the principle that a defendant’s argument should
not be reached on appeal, but rather that the state may move to hold briefing in
abeyance until the conflict is resolved. See id. Here, as defense counsel explains, the
appellate public defender is now in a different department from trial counsel, eliminating
a facial conflict. See NMSA 1978, § 31-15-8(A), (B) (2014) (stating the chief public
defender shall establish an appellate division, and that the appellate division will
“provid[e] representation before the [C]ourt of [A]ppeals and the [S]upreme [C]ourt in
appellate, review and postconviction proceedings”); cf. Morales v. Bridgforth, 2004-
NMSC-034, ¶ 1, 136 N.M. 511, 100 P.3d 668 (concluding “there is no per se conflict of
interest where the Post Conviction Conflict Division of the Department represents an
individual arguing a claim of ineffective assistance of counsel by an attorney from the
Trial Division of the Department” of the public defender’s office). As such, we decline to
address the State’s argument further.
I. Ineffective Assistance of Counsel
{10} “The Sixth Amendment to the United States Constitution guarantees the right to
the effective assistance of counsel.” State v. Mosely, 2014-NMCA-094, ¶ 18, 335 P.3d
244. Defendant contends he had a viable suppression issue under Article II, Section 10
of the New Mexico Constitution and that his attorney’s failure to move to suppress the
methamphetamine on the grounds that he “was seized without reasonable suspicion or
pursuant to any exception,” rendered his attorney’s assistance ineffective. The State
contends that the record establishes that the contact between Officer Villarreal and
Defendant was a permissible community caretaker encounter and therefore a
reasonably competent attorney could have decided that a motion to suppress was not
warranted.
{11} “We review claims of ineffective assistance of counsel de novo.” State v. Pitner,
2016-NMCA-102, ¶ 14, 385 P.3d 665 (internal quotation marks and citation omitted).
“[T]here is a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” State v. Garcia, 2011-NMSC-003, ¶ 33, 149 N.M.
185, 246 P.3d 1057 (internal quotation marks and citation omitted). “In order to establish
a prima facie case of ineffective assistance of counsel on direct appeal, a defendant
must demonstrate that: (1) counsel’s performance fell below that of a reasonably
competent attorney; (2) no plausible, rational strategy or tactic explains counsel’s
conduct; and (3) counsel’s apparent failings were prejudicial to the defense.” State v.
Bahney, 2012-NMCA-039, ¶ 48, 274 P.3d 134. “When an ineffective assistance claim is
first raised on direct appeal, we evaluate the facts that are part of the record.” State v.
Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.
{12} Because the record is frequently insufficient to establish whether an action taken
by defense counsel was not reasonable or if an error caused prejudice, ineffective
assistance of counsel claims are often better addressed in habeas corpus proceedings.
See State v. Arrendondo, 2012-NMSC-013, ¶ 38, 278 P.3d 517. However, if on direct
appeal a defendant makes a prima facie case for ineffective assistance of counsel on
the basis of facts in the record, an appellate court can remand to the district court for an
evidentiary hearing. See State v. Crocco, 2014-NMSC-016, ¶ 14, 327 P.3d 1068. A
defendant makes a prima facie case when the defendant produces sufficient evidence
to allow the trier of fact “to infer the fact at issue and rule in [the d]efendant’s favor.” Id.{13} When an ineffective assistance of counsel claim is premised on counsel’s failure
to move to suppress evidence, a defendant “must establish that the facts support the
motion to suppress and that a reasonably competent attorney could not have decided
that such a motion was unwarranted.” State v. Mosley, 2014-NMCA-094, ¶ 20, 335 P.3d
244 (internal quotation marks and citation omitted). However, when “a plausible, rational
strategy or tactic can explain the conduct of defense counsel, we cannot conclude that
trial counsel erred.” Crocco, 2014-NMSC-016, ¶ 15 (internal quotation marks and
citation omitted). One reason why defense counsel may not have moved to suppress
evidence is “counsel’s judgment that the motion would be groundless and
unsuccessful.” Id.{14} In order to establish a successful motion to suppress, Defendant would have to
show the existence of facts demonstrating that Officer Villarreal acted outside the
permissible role of a community caretaker and that he lacked reasonable suspicion and
seized Defendant. The record before us on appeal suggests that a reasonably
competent attorney could have decided that such a motion was unwarranted because
Officer Villarreal was acting as a community caretaker while interacting with Defendant.
We explain.
{15} “An officer who is acting as a community caretaker does not violate the Fourth
Amendment.” State v. Sheehan, 2015-NMCA-021, ¶ 9, 344 P.3d 1064 (internal
quotation marks and citation omitted). “Therefore, when police act as community
caretakers, the existence of reasonable suspicion or grounds for probable cause are not
appropriate inquiries.” Id. (text only) (citation omitted). “When determining whether a
warrantless search or seizure is reasonable on the basis of the community caretaker
exception, we must measure the public need and interest furthered by the police
conduct against the degree of and nature of the intrusion upon the privacy of the
citizen.” Id. (internal quotation marks and citation omitted).
{16} Defendant agrees that the proper standard here for the community caretaker
exception is the public servant doctrine—which “deals primarily with warrantless
searches and seizures of automobiles.” Id. ¶ 12 (internal quotation marks and citation
omitted). Under the public servant doctrine, an officer “may stop a vehicle for a specific,
articulable safety concern, even in the absence of reasonable suspicion that a violation
of law has occurred or is occurring.” Id. (internal quotation marks and citation omitted).
“This is an objective test to determine whether a vehicle stop is based on a reasonable
concern for public safety.” Id. (internal quotation marks and citation omitted).
{17} Here, Officer Villarreal was called to the scene by a concerned store clerk who
stated Defendant had been parked for several hours and was in a slumped position.
Officer Villarreal testified that this sort of call was unusual. When Officer Villarreal made
contact with Defendant he immediately asked him, “What’s going on?” Shortly after
Defendant responded that he was waiting for his brother, Officer Villarreal asked about
weapons to ensure his own safety during the encounter. Cf. State v. Leyva, 2011-
NMSC-009, ¶ 26, 149 N.M. 435, 250 P.3d 861 (“Questions asked for purposes of
ensuring officer safety during a stop generally are proper because when these
measures are not too intrusive, the government’s strong interest in officer safety
outweighs the motorist’s interest. Questions directed toward officer safety, therefore, do
not bespeak a lack of diligence.” (alterations, internal quotation marks, and citations
omitted)); Cf. State v. Boblick, 2004-NMCA-078, ¶¶ 3, 13-15, 135 N.M. 754, 93 P.3d
775 (suppressing the evidence resulting from a protective frisk after a groggy defendant
who was asked to step out of his vehicle, did not answer the subsequent questions of
an officer, including whether the defendant had any weapons while conducting a safety
check because the defendant’s lack of response did not provide articulable safety
concerns justifying the pat down). Here, unlike the facts in Boblick, Defendant admitted
to possessing a weapon in the car and as a result, Officer Villarreal separated
Defendant from the weapon by asking him to step out of the car. After Defendant exited
the vehicle, Officer Villarreal told Defendant that he approached him because the store
clerk had been concerned for him, and had requested the police check on him to ensure
that he was not intoxicated or otherwise in distress. As such, Officer Villarreal
articulated specific concerns for the safety of the Defendant. See Schuster v. N.M. Dep’t
of Tax’n & Revenue, 2012-NMSC-025, ¶ 28, 283 P.3d 288 (concluding that an officer’s
question of whether the defendant was okay “can be viewed objectively as a question
that arises out of concern for [the defendant’s] welfare and not an intent to investigate”).
{18} Based on the record before us we disagree with Defendant’s contention that he
was “seized . . . when the officers approached the car, woke him up, proceeded to ask
accusatory questions, and ordered him out of his car.” Examining the existing record,
we turn first to Defendant’s contention that Officer Villarreal and his partner parked their
patrol cars behind his car and that both officers roused him from sleep. While there is no
dispute that Officer Villarreal parked his patrol car behind Defendant’s own parked
vehicle, the video recording of the officer’s encounter with Defendant appears to show a
reasonable distance between the two vehicles, but the actual distance was not
developed in the record. Moreover, although the record was not developed as to when
the second officer arrived on the scene or whether he was present when Officer
Villarreal knocked on the driver’s side window and woke Defendant, the video
establishes that only Officer Villarreal was present at the door to Defendant’s car when
the interaction began. Defendant additionally argues that Officer Villarreal ceased being
a community caretaker when he ascertained that Defendant was not impaired, but
rather tired. Although Officer Villarreal testified that he did not see signs of impairment in
Defendant, he qualified that assessment by saying that he did not see the signs of
alcohol impairment. He did not testify to any other form of impairment, or that he had
reached the conclusion that Defendant was not suffering from a mental or medical
emergency. Additionally, the record does not reflect when or if Officer Villarreal
concluded that Defendant was not in need of assistance, at which point he would be
acting outside his capacity as a community caretaker. See Sheehan, 2015-NMCA-021,
¶ 14 (stating that the public servant doctrine ends at the time the officer’s concerns are
alleviated).
{19} To the extent Defendant relies on State v. Murry, 2014-NMCA-021, 318 P.3d
180; State v. Williams, 2006-NMCA-062, 139 N.M. 578, 136 P.3d 579; and State v.
Jason L., 2000-NMSC-018, 129 N.M. 119, 2 P.3d 856 to argue that he was
unreasonably seized during his interaction with Officer Villarreal, we find these cases
inapplicable to our current analysis. Each case involved seizures conducted without
reasonable suspicion. See Murry, 2014-NMCA-021, ¶ 35 (concluding the defendant was
seized without reasonable suspicion); Williams, 2006-NMCA-062, ¶ 31 (concluding that
the officer lacked reasonable suspicion to justify the stop at inception and therefore
asking for identification was improper); Jason L., 2000-NMSC-018, ¶¶ 17, 22
(concluding that the officers lacked reasonable suspicion to detain the defendant and
ask the defendant if he was in possession of firearms). These cases do not analyze
encounters under the community caretaker exception or public servant doctrine where
reasonable suspicion is not required.
{20} Finally, Defendant argues that Officer Villarreal’s request to see Defendant’s
license and Officer Villarreal running a warrants check are not authorized under the
community caretaker exception. We disagree. “An officer may approach an individual,
ask questions, and request identification without the encounter becoming a seizure.”
State v. Granados, 2023-NMSC-003, ¶ 53, 528 P.3d 599 (internal quotation marks and
citation omitted). Further, “whenever an officer is reasonably called upon to make
contact with a driver (such as at border checkpoints and community caretaker
functions), the officer has the right to know with whom he is talking and may check to
see that the driver is both licensed and driving a car that is registered and insured.”
State v. Reynolds, 1995-NMSC-008, ¶ 21, 119 N.M. 383, 890 P.2d 1315. And “[a]fter
obtaining the documents, the officer may lawfully run a computer check, directly or
indirectly by contacting dispatch, in regard to the documents obtained. We have stated
that this check may include a wants and warrants check.” State v. Rubio, 2006-NMCA-
067, ¶ 14, 139 N.M. 612, 136 P.3d 1022.
{21} Because the facts in this record regarding Officer Villarreal’s encounter with
Defendant could support a conclusion by a reasonable attorney that Officer Villarreal
acted within the scope of the community caretaker exception, we decline to address
Defendant’s argument that the seizure was not supported by reasonable suspicion or
Defendant’s argument that the evidence was not sufficiently attenuated from the seizure
to be admissible. See Sheehan, 2015-NMCA-021, ¶ 9 (“Therefore, when police act as
community caretakers, the existence of reasonable suspicion or grounds for probable
cause are not appropriate inquiries.” (text only) (citation omitted)).
{22} We conclude that Defendant has not presented a prima facie case of ineffective
assistance of counsel. Defendant fails to establish that the record reflects that Officer
Villarreal acted outside of the scope of the community caretaker exception, and as such
cannot show the “facts support the motion to suppress and that a reasonably competent
attorney could not have decided that such a motion was unwarranted.” See Mosley,
2014-NMCA-094, ¶ 20 (internal quotation marks and citation omitted). Because of this,
we do not address Defendant’s prejudice argument and reject Defendant’s ineffective
assistance of counsel claim. However, our conclusion does not preclude Defendant
from pursuing habeas corpus proceedings if Defendant is able to adequately develop a
record sufficient for review. See State v. Bernal, 2006-NMSC-050, ¶ 33, 140 N.M. 644,
146 P.3d 289 (stating that when the record is inadequate for review, “[r]ather than
remand the case to the trial court for further hearings, this Court has a general
preference that such claims be brought and resolved through habeas corpus
proceedings”).
II. Sufficiency of the Evidence
{23} Defendant argues that there was insufficient evidence to convict him of
possession of methamphetamine because the State failed to show that he knew that
methamphetamine was in his pocket or that the substance he possessed was
methamphetamine. We disagree.
{24} In reviewing a challenge to the sufficiency of the evidence, an appellate court
views the evidence “in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.”
State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 988 P.2d 176. This test is
whether “substantial evidence of either a direct or circumstantial nature exists to support
a verdict of guilt beyond a reasonable doubt with respect to every element essential to a
conviction.” State v. Astorga, 2015-NMSC-007, ¶ 57, 343 P.3d 1245 (internal quotation
marks and citation omitted). There is no basis for reversal in the mere existence of
contrary evidence because the test merely asks whether a rational jury could have
found the existence of the essential factors. Id.{25} The jury was instructed, in relevant part, that the State must prove beyond a
reasonable doubt that “[D]efendant knew it was methamphetamine, or believed it to be
methamphetamine, or believed it to be some drug or other substance the possession of
which is regulated or prohibited by law.” The jury was also instructed that “[a] person is
in possession of methamphetamine when he knows it is on his person or in his
possession and he exercises control over it.” See State v. Smith, 1986-NMCA-089, ¶ 7,
104 N.M. 729, 726 P.2d 883 (“Jury instructions become the law of the case against
which the sufficiency of the evidence is to be measured.”).
{26} “Knowledge, like intent, is personal in its nature and may not be susceptible of
proof by direct evidence.” State v. Montoya, 1966-NMSC-224, ¶ 10, 77 N.M. 129, 419
P.2d 970. The State presented evidence that Defendant had exclusive possession of
the methamphetamine. Defendant was alone in the vehicle when Officer Villarreal
arrived and the methamphetamine was found in the front left pocket of Defendant’s
pants. Defendant exercised exclusive control and therefore knowledge of the presence
of the drug may be inferred. See State v. Howl, 2016-NMCA-084, ¶ 31, 381 P.3d 684(explaining that “[w]hen exclusive control is at issue, additional circumstances, including
the conduct of the accused, are required” to establish knowledge); State v. Tidey, 2018-
NMCA-014, ¶ 26, 409 P.3d 1019 (upholding the sufficiency of the evidence for a
conviction of possession of a controlled substance where the arresting officer found the
controlled substance in the defendant’s pocket).
{27} Our review shows sufficient evidence such that a reasonable jury could find that
Defendant knew he was in possession of the substance and the substance he
possessed was methamphetamine. Therefore, we hold there was sufficient evidence to
convict Defendant of possession of methamphetamine.
CONCLUSION
{28} For the forgoing reasons we affirm Defendant’s conviction for possession of
methamphetamine.
{29} IT IS SO ORDERED.
JACQUELINE R. MEDINA, Judge
WE CONCUR:
J. MILES HANISEE, Judge
KATHERINE A. WRAY, Judge