                                                                                        F I L E D
                                                                                United States Court of Appeals
                                                                                        Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                         DEC 11 1997
                                      TENTH CIRCUIT
                                                                                    PATRICK FISHER
                                                                                              Clerk

 LAWRENCE J. ESPINOSA,

           Petitioner - Appellant,
 v.
                                                                   No. 96-2077
                                                           (D.C. No. CIV-92-698-MV)
 JOE WILLIAMS, Warden,
                                                            (District of New Mexico)
 ATTORNEY GENERAL OF THE
 STATE OF NEW MEXICO,

           Respondents - Appellees.




                                ORDER AND JUDGMENT *


Before TACHA, HENRY and LUCERO, Circuit Judges.



       In January 1987, Lawrence Espinosa was indicted by a New Mexico grand

jury on numerous charges arising out of the murder of Oscar Barajas and an

attempted armed robbery at a Howard Johnson’s motel in Albuquerque.

Following a two-day jury trial, Espinosa was convicted of felony murder,

attempted armed robbery, kidnapping and false imprisonment. He was sentenced



       *
         This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.
to life imprisonment plus fifteen years and six months. On July 6, 1992, Espinosa

filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 which was

dismissed with prejudice. Espinosa now appeals this dismissal. He maintains

that his attorneys’ performance at trial violated his Sixth Amendment right to

effective assistance of counsel and that certain instructions given to the jury

regarding felony murder warrant reversal of his conviction. We exercise

jurisdiction under 28 U.S.C. § 2253 and affirm.

                                          I

      A claim of ineffective assistance of counsel presents a mixed question of

law and fact which is reviewed de novo. Miles v. Dorsey, 61 F.3d 1459, 1474

(10th Cir. 1995). In order to prevail, Espinosa must satisfy both parts of the test

set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984): “First, the

defendant must show that counsel’s performance was deficient. . . . Second, the

defendant must show that the deficient performance prejudiced the defense.” As

this circuit has interpreted Strickland, Espinosa must demonstrate

      that his attorney’s performance fell below an objective standard of
      reasonableness and that but for counsel’s deficiencies a reasonable
      probability exists the proceedings would have resulted in a different
      verdict. Restated, [he] must show his attorney’s performance was
      both substandard and prejudicial to his defense, taking into account
      the strength of the government’s case. Trial strategies necessarily
      evolve without the benefit of hindsight. Accordingly, we afford a
      high level of deference to the reasonableness of counsel’s
      performance in light of all the circumstances at the time of the


                                          -2-
       alleged error. The ultimate inquiry, of course, focuses on the
       fundamental fairness of the proceeding.

United States v. Maxwell, 966 F.2d 545, 547-48 (10th Cir. 1992) (internal

quotations and citations omitted).

       In evaluating counsel’s performance, we are mindful that there is a “wide

range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

Moreover, “prejudice” in this context means that “counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Id. at 687. Unless both elements of Strickland are satisfied, “it cannot be said

that the conviction . . . resulted from a breakdown in the adversary process that

renders the result unreliable.” Id.

       Espinosa points to numerous omissions to demonstrate defense counsel’s

substandard performance. 1 They include the failure to impeach the state’s

primary witnesses, to file motions in limine, to object to prejudicial testimony,

and to present evidence concerning a possible third person at the crime scene.

                                                A

       The critical witnesses linking Espinosa to the crime were co-defendant and

admitted accomplice, Simon Aragon, and Espinosa’s friend, Henry Alderete.

Espinosa contends trial counsel’s cross-examination of Aragon and Alderete was


       1
        Prior to denying Espinosa’s habeas petition, the district court conducted an evidentiary
hearing examining this claim, a transcript of which is included in the record on appeal.

                                               -3-
inadequate and that counsel failed to call certain witnesses to impeach their

testimony.

      With respect to Espinosa’s claim of ineffective cross-examination, we note

that defense counsel emphasized to the jury that Aragon and Alderete received

significant concessions from the state in return for their testimony. Counsel

emphasized that both were admitted heroin addicts and convicted felons.

Additional impeachment evidence therefore would have been of minimal utility to

Espinosa.

      Even were we to accept Espinosa’s contention that trial counsel could have

sought prospective witnesses more earnestly, our review of the record reveals that

these witnesses would have had little impact on the outcome of the trial. As

discussed above, counsel had already put into question Aragon and Alderete’s

credibility. Moreover, had they testified, each of the uncalled witnesses would

have presented testimony contradicting Aragon and Alderete’s testimony, but only

as regarding Espinosa’s whereabouts and activities well before or well after the

commission of this crime. Their testimony—even if believed by the jury—would

have had only peripheral impeachment value.

.                                        B

      Espinosa contends trial counsel unreasonably failed to file motions in

limine to exclude certain evidence. Deciding whether to file such motions “is


                                         -4-
clearly part of the process of establishing trial strategy. A defendant may prevail

on an ineffective assistance claim relating to trial strategy only if he can show

counsel’s strategy decisions would not be considered sound.” Jones v. Stotts, 59

F.3d 143, 146 (10th Cir. 1995). We agree with the district court’s assessment that

      counsel did not err by not filing motions in limine. Counsel were
      experienced with the practices and procedures of the trial judge and
      raised [evidentiary matters] in pretrial conference. The judge
      advised that objections should be made at trial . . . . There are
      alternative ways of bringing concerns to the court’s attention besides
      the filing of papers.

Vol. I, Doc. 120 at 25; see Evidentiary Hr’g Tr. 1-3-95 at 82-83, 129, 146, 154,

274-75.

                                          C

      At trial, Aragon testified he saw Espinosa in jail following the murder, and

spontaneously added that Espinosa was in custody for a different charge, “trying

to rob a taxicab or assaulting a taxicab or something like—.” Trial Tr. at 114.

Defense counsel objected and moved for a mistrial. The trial court denied the

motion on the grounds that the prosecution had taken steps to prevent disclosure

of this information, and that defense counsel could have acted more diligently in

opposing the line of questioning leading to Aragon’s unsolicited statement.

      We agree with Espinosa that counsel’s sluggish reaction could be described

as substandard attorney performance under Strickland. However, we do not find

prejudice of a constitutional magnitude. No further reference was made to this

                                          -5-
outburst and, in light of the other evidence presented, there does not appear to be

“a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland, 466 U.S. at 694. 2

                                                 D

       A witness to the crime informed police that, in addition to the two male

intruders, there may have been an Hispanic female present at the crime scene.

Espinosa maintains his attorneys failed to properly investigate his suggestion to

them that Aragon’s girlfriend, Frances Montoya, may have been the third suspect

in question. In evaluating this claim, we note that defense counsel is required “to

make reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary.” Strickland, 466 U.S. at 691.

       Counsel explained during the evidentiary hearing that members of the

defense team conducted an investigation but were unable to locate Montoya.

Espinosa countered by introducing the testimony of an investigator with the

Federal Public Defender’s office, who had been able to do so several years later.

When asked whether it was easy to locate Ms. Montoya, however, the investigator

stated, “[n]ot really.” Evidentiary Hr’g Tr. 12-14-94 at 118. Thus we cannot

conclude that counsel’s investigation was unreasonable.

       2
        Espinosa also contends that trial counsel erred in failing to object to the introduction of
evidence at several other times during the trial. We conclude, after reviewing the record, that
defense counsel’s performance as to these evidentiary matters did not constitute ineffective
assistance of counsel under Strickland.

                                                 -6-
       Trial counsel’s ability to conduct a more thorough investigation was

substantially impeded by Espinosa’s mercurial version of events. He initially told

his attorneys that he was the third person at the scene, later admitted he was the

gunman, and later still resorted to the alibi he now asserts, namely that he spent

the night in question with an unidentified man. Espinosa’s failure to provide his

attorneys with more consistent information bars the conclusion that defense

counsel failed in their investigative duties. See Strickland, 466 U.S. at 691.

       Espinosa contends defense counsel’s opening statement improperly

theorized about a third person’s involvement in the crime. 3 Espinosa claims this

constitutes substandard lawyering because it left the possibility of a third

participant, perhaps Espinosa, “just hanging out there.” Appellant’s Br. at 39.

We disagree. “[T]o rise to the level of constitutional ineffectiveness, [counsel’s]

decision . . . must have been completely unreasonable, not merely wrong, so that

it bears no relationship to a possible defense strategy.” Hoxsie v. Kerby, 108

F.3d 1239, 1246 (10th Cir. 1997) (internal quotations omitted), cert. denied, 66

U.S.L.W. 3257 (U.S. Oct. 6, 1997) (No. 96-9364). Counsel was aware that a third

suspect could—and probably would—be mentioned during the course of trial and

may have mentioned the third person in order to pre-empt the issue. Additionally,

       3
         For purposes of analysis, we accept as true Espinosa’s contention that a third suspect was
mentioned during the defense’s opening statement. Apparently, however, that statement was
never transcribed. See Evidentiary Hr’g Tr. 12-14-94 at 30-31. Consequently, it is not contained
in the appellate record.

                                                -7-
the testimony regarding the third person at the scene described the individual as

“20 to 23 years old . . . [a] Spanish female . . . shorter than [the witness] in build,

had a light complexion, black, medium-length hair [which was] pulled back [with]

no bangs.” Trial Tr. at 162. It is unlikely the jury would have inferred that that

person was Espinosa. Finally, counsel’s reference to a third suspect may have

benefitted the defense by casting doubt on Aragon’s testimony that only he and

Espinosa were involved in the commission of these crimes.

      Even were we to assume counsel’s performance in this case fell outside the

wide range of professionally competent assistance, such errors would not

undermine our confidence in the outcome. We cannot say that Espinosa was

deprived “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at

687. Consequently, we affirm the district court’s decision to dismiss Espinosa’s

claim of ineffective assistance of counsel.

                                           II

      Several years after Espinosa was convicted, the New Mexico Supreme

Court reexamined the state’s felony murder statute in State v. Ortega, 817 P.2d

1196 (N.M. 1991). The Ortega court construed the statute “as requiring proof that

the defendant intended to kill the victim (or was knowingly heedless that his or

her acts created a strong probability of death or great bodily harm)” thus

removing the statute from the “threat of unconstitutionality.” Id. at 1204-05.


                                           -8-
Felony murder in New Mexico therefore requires a finding of intent to kill, as

thus defined, in addition to the intent to commit the underlying felony. See State

v. Hernandez, 846 P.2d 312, 329 (N.M. 1993). On appeal, Espinosa argues that

the jury instructions in his case were improper because they did not require a

finding that he possessed the requisite intent to kill. We need not decide whether

Ortega applies retroactively because, even assuming it does and that the

instructions were thus flawed, our independent review of the record leads us to

conclude that such assumed error does not mandate habeas relief here.

      The Supreme Court’s decision in California v. Roy, 117 S.Ct. 337 (1996)

(per curiam), addresses a similar legal issue and demarcates the parameters of our

analysis. In Roy, the Court rejected the defendant’s argument that an erroneous

jury instruction mandated habeas relief. Id. at 338. The instruction at issue in

Roy was erroneous under state law because it did not inform the jury that to

sustain a guilty verdict, the jury must find that the defendant had intended to aid

in the commission of the crime. As is the situation in this appeal, the Roy Court

noted that “[n]o one claims that the error at issue here is of the ‘structural’ sort”

and the Court characterized this “error in the instruction that defined the crime,”

as a “trial error.” Id. at 339. As such, the appeal was “a case for application of

the ‘harmless error’ standard as enunciated in Brecht [v. Abrahamson, 507 U.S.

619 (1993)] and O’Neal [v. McAninch, 513 U.S. 432 (1995)].” Id.


                                           -9-
       Under Brecht, a federal court reviewing a state court determination in a

habeas corpus proceeding should apply the “harmless error” standard enunciated

in Kotteakos v. United States, 328 U.S. 750 (1946)—“whether the error ‘had

substantial and injurious effect or influence in determining the jury’s verdict.’”

Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776); see Roy, 117 S.Ct.

at 338. In O’Neal, the Supreme Court added that, in applying this standard in a

habeas proceeding, if a reviewing court “is in grave doubt as to the harmlessness

of an error,” the habeas “petitioner must win.” 513 U.S. at 437; see Roy, 117

S.Ct. at 338.

       The jury in this case was instructed that it could only find Espinosa guilty

of felony murder if it found that: (1) defendant committed kidnapping and caused

the death of Mr. Barajas; or (2) defendant attempted to commit armed robbery and

caused the death of Mr. Barajas; or (3) someone caused the death of Mr. Barajas

and defendant was an accomplice to kidnapping and/or attempted armed robbery. 4

The jury was also instructed that to find Espinosa guilty of kidnapping, it had to

find “defendant took or restrained [the kidnapping victim] by force; [and] . . .

defendant intended to hold [the kidnapping victim] for service against her will.”

R. Proper at 71.


       4
         All three of these instructions are erroneous under Ortega because none requires a
finding that the defendant not only “caused” the death of Oscar Barajas, but also intended to do
so.

                                               -10-
       The jury returned a guilty verdict as to felony murder, kidnapping and

attempted armed robbery. 5 The jury also returned a unanimous special

interrogatory verdict, finding that Espinosa committed murder in the course of

both kidnapping and attempted armed robbery, and that he used a firearm in the

course of the kidnapping.

       Espinosa argues that, because the trial judge failed to instruct the jury on

the element of intent to kill, the jury could have impermissibly found Espinosa

guilty of murder based on accomplice liability—regardless of his intent to cause

the death of Mr. Barajas. We are not persuaded. Under the kidnapping

instruction given, the jury could not have found the defendent guilty of

kidnapping as an accomplice. Our review of the record demonstrates that the only

evidence presented to the jury is that the principal kidnapper was the gunman.

Thus, the jury necessarily found that Espinosa was the gunman.

       In Ortega, the New Mexico Supreme Court held that,

       intent to kill in the form of knowledge that the defendant’s acts
       “create a strong probability of death or great bodily harm” to the
       victim or another, so that the killing would be only second degree
       murder . . . if no felony were involved, is sufficient to constitute
       murder in the first degree when a felony is involved . . . .

Ortega, 817 P.2d at 1205; see State v. Lopez, 920 P.2d 1017, 1020 (N.M. 1996)

(“[O]ur felony-murder rule is best described as elevating the crime of second-

       5
        The jury was also instructed on one count of false imprisonment, as to which it also
returned a guilty verdict.

                                              -11-
degree murder to first-degree murder when the murder is committed during the

course of a dangerous felony.”); see also N.M. Stat. Ann., § 30-2-1(B) (Michie

1978) (defining murder in the second degree). A jury in New Mexico can imply

malice if it finds beyond a reasonable doubt that the killing was committed by

means of a deadly weapon. See State v. Vigil, 533 P.2d 578, 583 (N.M. 1975);

State v. Anaya, 460 P.2d 60, 62 (N.M. 1969).

      Viewing the jury’s findings in conjunction with a review of the record we

find the erroneous instructions harmless. All the evidence shows that the gunman

possessed the intent required for felony murder under New Mexico law. The

record indicates that the gunman was aware that his acts created, at the very least,

a strong possibility of great bodily harm. Eyewitnesses presented unrefuted

testimony that the masked gunman entered the motel, pointed a gun at several

individuals, pressed the gun to the head of the kidnapping victim, and made

several threats to shoot bystanders if they did not comply with his orders. The

murder victim was shot twice, once in the back, when he came to the aid of the

kidnapping victim.

      Based on this uncontroverted evidence and on New Mexico state law, we

are not in grave doubt but that the jury’s verdict encompassed a finding that

defendant had the intent required for felony murder. Thus, we do not agree that

the error “had substantial and injurious effect or influence” on the jury’s verdict.


                                         -12-
AFFIRMED.

            ENTERED FOR THE COURT



            Carlos F. Lucero
            Circuit Judge




             -13-
