 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3        Plaintiff-Appellee,

 4 v.                                                                       No. 28,753

 5 JONATHAN HUNT,

 6        Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 Thomas J. Hynes, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Susan Roth, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                              MEMORANDUM OPINION

17 SUTIN, Judge.

18        Defendant appeals from his convictions for second degree murder, battery, and

19 assault. In this Court’s first notice of proposed summary disposition, we proposed to

20 affirm. Defendant responded with a memorandum in opposition and a motion to

21 amend the docketing statement. In this Court’s second notice of proposed summary
 1 disposition, we granted Defendant’s motion to amend and again proposed to affirm

 2 Defendant’s convictions. Pursuant to an extension granted by this Court, Defendant

 3 has timely responded with a second memorandum in opposition. We have reviewed

 4 Defendant’s arguments, and as we are not persuaded by them, we now affirm.

 5        Issue A: Defendant contends that his attorney was ineffective by not hiring

 6 expert witnesses to analyze the blood stains on Defendant’s fleece jacket. [DS 5] In

 7 order to demonstrate that his counsel was ineffective, Defendant must establish both

 8 that his counsel committed an unreasonable error and that the error prejudiced him.

 9 See State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289. A decision

10 made by trial counsel will not be considered an error for purposes of an ineffective

11 assistance claim if it can be justified as a trial tactic or strategy. See id. To show

12 prejudice, Defendant must establish “a reasonable probability that, but for counsel’s

13 unprofessional errors, the result of the proceeding would have been different.” Id.

14 (internal quotation marks and citation omitted).

15        We hold that Defendant has not established that his counsel’s reliance on cross-

16 examination of the State’s expert cannot be justified as a legitimate trial strategy in

17 this case. See State v. Harrison, 2000-NMSC-022, ¶ 63, 129 N.M. 328, 7 P.3d 478

18 (rejecting a claim of ineffective assistance on direct appeal and concluding that


                                              2
 1 defense counsel made a tactical decision not to hire an expert and to rely on his own

 2 cross-examination of the prosecution’s expert). Without evidence presented in a

 3 hearing by Defendant’s trial counsel, this Court cannot know whether counsel’s

 4 choices were strategic because we do not have defense counsel’s perspective on why

 5 he made them, and we do not know what limitations constrained defense counsel’s

 6 actions. “Strategic choices made after thorough investigation of law and facts relevant

 7 to plausible options are virtually unchallengeable; and strategic choices made after

 8 less than complete investigation are reasonable precisely to the extent that reasonable

 9 professional judgments support the limitations on investigation.” Lytle v. Jordan,

10 2001-NMSC-016, ¶ 41, 130 N.M. 198, 22 P.3d 666 (alteration omitted) (internal

11 quotation marks and citation omitted).

12        Even more importantly, Defendant cannot show that he was prejudiced by the

13 failure to consult with an expert because he has not demonstrated that there is an

14 expert available to testify in a manner that would aid his defense. We believe that in

15 the absence of facts showing that Defendant could have actually presented favorable

16 expert testimony had his attorney consulted with an expert, we conclude that

17 Defendant has not established “a reasonable probability that, but for counsel’s

18 unprofessional errors, the result of the proceeding would have been different.” Bernal,


                                              3
 1 2006-NMSC-050, ¶ 32 (internal quotation marks and citation omitted). Therefore,

 2 Defendant has not made a prima facie case of ineffective assistance of counsel. See

 3 State v. Herrera, 2001-NMCA-073, ¶ 37, 131 N.M. 22, 33 P.3d 22 (holding that the

 4 defendant failed to establish a prima facie case of ineffective assistance of counsel for

 5 his counsel’s failure to retain an expert to testify at trial when trial counsel had

 6 consulted with one expert whose opinion was unfavorable to the defendant and the

 7 defendant had not shown there was another expert who could have testified in a

 8 manner that likely would have changed the outcome of the case). If Defendant is able

 9 to obtain further evidence in support of his claim, he may raise it in a habeas corpus

10 proceeding. See Bernal, 2006-NMSC-050, ¶ 33.

11        Issue B: Defendant asserts that the district court erred in refusing to give a

12 step-down instruction on voluntary manslaughter. [DS 5-6] The denial of a jury

13 instruction involves a mixed question of law and fact, which we review de novo. See

14 State v. Gaines, 2001-NMSC-036, ¶ 4, 131 N.M. 347, 36 P.3d 438.                  “When

15 considering a defendant’s requested instruction[], we view the evidence in the light

16 most favorable to the giving of the requested instruction.”           State v. Romero,

17 2005-NMCA-060, ¶ 8, 137 N.M. 456, 112 P.3d 1113. “In the case of lesser included




                                               4
 1 offense instructions, there must be some view of the evidence that could sustain a

 2 finding that the lesser offense was the highest degree of crime committed.” Id.

 3        An instruction on voluntary manslaughter would have been appropriate if there

 4 was evidence that Defendant was sufficiently provoked to reduce the charge from

 5 second degree murder to voluntary manslaughter. See UJI 14-220 NMRA. Sufficient

 6 provocation is defined as “any action, conduct or circumstances which arouse anger,

 7 rage, fear, sudden resentment, terror or other extreme emotions.” UJI 14-222 NMRA.

 8 “The provocation must be such as would affect the ability to reason and to cause a

 9 temporary loss of self control in an ordinary person of average disposition.” Id.

10        In this Court’s first notice, we stated that it did not seem that there was any

11 evidence of provocation other than the fact that Defendant may have been wounded

12 and that Defendant’s blood was at the scene of the murder. [DS 5] We noted that our

13 Supreme Court has concluded that evidence that a defendant has suffered some injury

14 at the hands of the victim is insufficient circumstantial evidence of provocation. See

15 State v. Martinez, 95 N.M. 421, 424, 622 P.2d 1041, 1044 (1981) (“With reference to

16 the defendant’s wounds, the fact that he was injured constitutes some proof that the

17 victim may have struck and shot [the] defendant. However, it also constitutes proof

18 that the victim tried to defend himself against [the] defendant’s deadly attacks. [The


                                             5
 1 d]efendant’s wounds alone do not constitute sufficient evidence to support an

 2 inference of provocation or acts in the heat of passion.        There must be other

 3 evidence.”). We therefore proposed to conclude that the district court did not err in

 4 refusing to instruct the jury on voluntary manslaughter.

 5        In Defendant’s memoranda in opposition, he pointed out that witnesses at the

 6 campground testified that they heard Defendant arguing with someone earlier in the

 7 evening. [MIO 9; 2d MIO 6] However, as Defendant seems to recognize, “[i]t is

 8 well established that words alone are not enough to arouse the passions such that

 9 murder is reduced to manslaughter.” State v. Stills, 1998-NMSC-009, ¶ 36, 125 N.M.

10 66, 957 P.2d 51. In certain circumstances, informational words may constitute

11 sufficient provocation, see Sells v. State, 98 N.M. 786, 788, 653 P.2d 162, 164 (1982),

12 but Defendant points to no evidence regarding the substance of any argument

13 Defendant and the victim may have had. Defendant argues that State v. Montano, 95

14 N.M. 233, 620 P.2d 887 (Ct. App. 1980), supports his position that insulting words

15 and action accompanying those words may support a voluntary manslaughter

16 instruction, particularly when the victim and the defendant are intoxicated. [MIO 9;

17 2d MIO 6] However, in Montano, this Court relied on the fact that there was specific

18 evidence presented that the victim became angry when the defendant asked him to


                                              6
 1 leave her home and that the victim may have been moving toward a gun sitting near

 2 him on a table when the defendant grabbed the gun and shot the victim. 95 N.M. at

 3 236, 620 P.2d at 890. Therefore, we find Montano to be distinguishable.

 4        Defendant also points out that the campers heard slapping sounds during the

 5 argument. [2d MIO 6] We note that those witnesses testified that, over the course of

 6 several hours during the night, the witnesses heard a repeated sound like someone

 7 hitting another person and that they heard Defendant repeating that he was a “bad

 8 mother fucker.” [RP 232, 239, 242, 256] It is not clear to this Court whether

 9 Defendant intends to suggest that what the campers heard was the victim repeatedly

10 hitting Defendant, and this Court does not review unclear arguments. See Headley v.

11 Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076.

12 Furthermore, it does not appear that Defendant ever offered this theory to the district

13 court in urging that the voluntary manslaughter instruction be given. Instead, the only

14 evidence Defendant suggested was relevant to the instruction was the fact that

15 Defendant had a head injury. [RP 359] As Defendant has not provided this Court

16 with any authority to support a claim that evidence of the sound of hitting is sufficient

17 to warrant an instruction on voluntary manslaughter, we hold that the district court did

18 not err in refusing to give the instruction. Even if we were to assume that a jury could


                                               7
 1 reasonably conclude that the victim was hitting Defendant, the fact that a victim hits

 2 the person who kills her is not itself evidence of sufficient provocation. See Martinez,

 3 95 N.M. at 424, 622 P.2d at 1044.

 4        Issue C: Defendant argues that the district court erred in refusing to give a

 5 step-down instruction on involuntary manslaughter. [DS 6] We review this claim de

 6 novo. See Gaines, 2001-NMSC-036, ¶ 4. Involuntary manslaughter includes the

 7 unlawful killing of a human being without malice either in the commission of an

 8 unlawful act not amounting to a felony, in the commission of a lawful act that might

 9 produce death in an unlawful manner, or in the commission of a lawful act that might

10 produce death without due caution and circumspection. See NMSA 1978, § 30-2-3(B)

11 (1994).

12        In our first notice, we stated that it appears that Defendant argued that the

13 involuntary manslaughter instruction was warranted because Defendant was drunk or

14 otherwise mentally incapacitated at the time of the murder. [RP 367] The district

15 court indicated that it did not find an involuntary manslaughter instruction appropriate

16 because the evidence showed that the victim was struck repeatedly and that the

17 repeated action indicated that it was not involuntary. [RP 368] We proposed to agree

18 with the district court. We noted that the defense of intoxication or another mental


                                              8
 1 impairment applies only when a defendant is alleged to have had the specific intent

 2 necessary to establish first degree murder. See UJI 14-5110 NMRA. It does not apply

 3 to the general intent crime of involuntary manslaughter. See UJI 14-5105 NMRA

 4 (stating that voluntary intoxication is not a defense to general intent crimes). We also

 5 stated that Defendant points to no evidence tending to show that the victim’s death

 6 would fall within the misdemeanor-manslaughter provision of the statute or that it was

 7 accidentally committed during a lawful act. See § 30-2-3(B). Accordingly, we

 8 proposed to conclude that the district court did not err in refusing to instruct the jury

 9 on involuntary manslaughter.

10        In Defendant’s memoranda in opposition, he repeats that there was evidence

11 presented at trial that he did not intend to kill the victim and that this evidence

12 included that “he did not remember anything, . . . he was extremely drunk and acting

13 without a ‘full deck.’” [MIO 8; 2d MIO 7-8] Defendant does not respond to the legal

14 authority cited by this Court that Defendant’s intoxication does not reduce the crime

15 to involuntary manslaughter, and we hold that such an instruction was not warranted

16 by Defendant’s voluntary intoxication. Furthermore, Defendant again fails to point

17 to any evidence that would suggest that Defendant’s conduct was either lawful or

18 committed within the scope of the misdemeanor-manslaughter rule, which are


                                               9
 1 necessary elements of Section 30-2-3(B). As there was no evidence that Defendant’s

 2 conduct was covered by any of the alternatives under Section 30-2-3(B), we hold that

 3 the district court did not err in refusing to give an involuntary manslaughter

 4 instruction.

 5        Issues D, E, & F: Defendant contends that the prosecutor was guilty of

 6 prosecutorial misconduct when he asked Defendant whether he had “issues with

 7 women” and when he asked if Defendant had ever made a certain crude and

 8 derogatory characterization of having sex with his wife. [DS 6] Defendant also

 9 contends that the district court erred in allowing these questions to be asked over

10 Defendant’s objection. [DS 6] “[I]n reviewing claims of prosecutorial misconduct,

11 we determine whether the trial court abused its discretion . . . by overruling the

12 defendant’s objection to the challenged conduct, or by otherwise failing to control the

13 conduct of counsel during trial.” State v. Duffy, 1998-NMSC-014, ¶ 46, 126 N.M.

14 132, 967 P.2d 807. Such claims are subject to harmless-error review. See id. ¶ 59.

15 Claims of error in the admission of evidence are reviewed under the same standard.

16 See State v. Downey, 2008-NMSC-061, ¶¶ 24, 39, 145 N.M. 232, 195 P.3d 1244

17 (reviewing the admission of evidence for an abuse of discretion and harmless error).




                                             10
 1        In this Court’s first notice, we stated that, even assuming that the prosecutor’s

 2 questions constituted prosecutorial misconduct and that the district court abused its

 3 discretion in overruling Defendant’s objections, we proposed to conclude that the

 4 errors were harmless. “On appeal, prosecutorial misconduct will be deemed harmless

 5 only if we find that the evidence of guilt is so overwhelming that there can be no

 6 reasonable probability that the conviction was swayed by the misconduct.” Duffy,

 7 1998-NMSC-014, ¶ 59. We stated that the evidence against Defendant, although

 8 circumstantial, was overwhelming.

 9        We noted that witnesses testified that Defendant and the victim arrived at the

10 campsite together, that over the course of several hours during the night the witnesses

11 heard a repeated sound like someone hitting another person, and that they heard

12 Defendant repeating that he was a “bad mother fucker.” [RP 232, 239, 242, 256] One

13 witness stated that she heard arguing. [RP 257] There was evidence that in the

14 middle of the night Defendant attacked another camper who was sleeping in her car

15 and that prior to the attack he told her that all her friends were dead. [RP 252] There

16 was evidence that when the other campers found the victim dead at Defendant’s

17 campsite, it appeared that she had been severely beaten. [RP 234] An expert testified

18 that the victim died of blunt force trauma. [DS 4] After one of the campers knocked


                                             11
 1 Defendant unconscious, two campers watched him, did not allow him to leave, and

 2 accused him of killing the victim. [RP 235, 238, 285-86] Defendant did not ask

 3 questions or express concern about the victim’s death and instead said, “Just kill me.”

 4 [RP 235] Tests revealed that Defendant had the victim’s blood on his hands and on

 5 his fleece jacket. [RP 294] An expert testified that the spatter on Defendant’s jacket

 6 was consistent with impact spatter. [RP 309-10, 313-14] At the hospital, when a

 7 police officer asked Defendant if he could ask him a few questions, Defendant raised

 8 his hands and said, “you kind of caught me.” [RP 327]

 9        Defendant testified and did not deny committing the acts alleged, stating instead

10 that he did not believe that he killed the victim, but that he could not remember. [RP

11 338] He stated that he could not remember anything that happened from about 9:30

12 that evening, when he went to bed, until he woke up in the helicopter as he was being

13 transported to the hospital. [DS 4; RP 336]

14        In Defendant’s first memorandum in opposition, he did not address this Court’s

15 harmless error analysis [MIO 10-13], but in his second memorandum, he asserts that

16 the error was not harmless because no one actually witnessed the murder and the

17 evidence was circumstantial. [2d MIO 4] The fact that there were no eyewitnesses

18 to the murder does not change our analysis. In light of the overwhelming evidence


                                             12
 1 introduced at trial, we do not believe that there is a reasonable probability that the

 2 verdict was affected by the question whether Defendant had issues with women, by

 3 his answer, and by his testimony that he had made a derogatory comment about sex

 4 with his wife. We hold that the evidence of guilt in this case was so overwhelming

 5 as to render harmless the claimed prosecutorial misconduct and claimed error in the

 6 admission of this testimony.

 7        Issue G: Defendant argues that his attorney was ineffective in failing to move

 8 for a mistrial when Defendant admitted that he made the crude and derogatory

 9 comment about having sex with his wife. [DS 6] In our first and second notices, we

10 proposed to conclude that Defendant had not established ineffective assistance of

11 counsel, because (1) Defendant had not shown that counsel erred in failing to move

12 for a mistrial because he had not established that a mistrial was warranted, and (2)

13 Defendant had not established, if his counsel did so err, that there was a reasonable

14 probability that the outcome of Defendant’s trial would have been different. See

15 Bernal, 2006-NMSC-050, ¶ 32.

16        Defendant’s memoranda in opposition merely repeat his assertion that counsel

17 was ineffective—although he now argues that counsel should have asked for a

18 curative instruction rather than a mistrial—without specifically addressing either of


                                             13
 1 the two requirements for establishing a prima facie case of ineffective assistance of

 2 counsel. [MIO 12; 2d MIO 3] Accordingly, we hold that Defendant failed to

 3 establish a prima facie case of ineffective assistance of counsel.

 4         Issue H: We granted Defendant’s motion to amend his docketing statement to

 5 raise a claim that the district court erred in denying his motion to suppress statements

 6 he made to the police after he was taken to the hospital with a head injury.1 [MIO 15-

 7 23] “Appellate review of a district court’s denial of a motion to suppress evidence

 8 presents a mixed question of law and fact: facts are reviewed under a deferential

 9 substantial-evidence standard, while the application of law to the facts is reviewed de

10 novo.” State v. Moran, 2008-NMCA-160, ¶ 6, 145 N.M. 297, 197 P.3d 1079.

11 Defendant raises two alternative bases for his claim that the evidence should have



12         1
              We note that it is unclear whether the questioning actually occurred in the
13   hospital. At the hearing on Defendant’s motion, it seems that Officer Tanner stated
14   that Defendant had been transported to the sheriff’s office and that the questioning
15   occurred there. [RP 137, 139] It also appears that Detective Weisheit testified at trial
16   that he spoke with Defendant at the sheriff’s office. [RP 327] In our second notice
17   of proposed summary disposition, we stated that as both Defendant’s motion to
18   suppress and Defendant’s memorandum in opposition indicated that the questioning
19   occurred at the hospital, we would assume that the questioning occurred at the
20   hospital. Defendant’s second memorandum in opposition states that some of
21   Defendant’s statements were made at the hospital, while others were made at the
22   sheriff’s office. [2d MIO 11] Defendant does not explain which statements were made
23   at which location and does not argue that the location makes a difference to the
24   analysis of the issues raised.
                                               14
 1 been suppressed. First, he argues that the statements were involuntary and were

 2 obtained in violation of his right to due process. [MIO 15] Second, he argues that the

 3 statements were obtained in violation of his right not to incriminate himself as

 4 provided in Miranda v. Arizona, 384 U.S. 436 (1966). [Id.]

 5        In our second calendar notice, we proposed to conclude that Defendant failed

 6 to preserve his due process voluntariness argument. Defendant’s motion to suppress

 7 included a number of factual statements that Defendant argued warranted suppression,

 8 but included no legal authority to indicate the legal grounds for the motion. [RP 133-

 9 34] While some of these facts might have been relevant to an argument that

10 Defendant’s statements were not voluntarily made for purposes of due process, it

11 appears from the tape logs in the record proper that Defendant never made such an

12 argument. [RP 137-43] Instead, the parties’ arguments appear to be solely directed

13 toward the question of whether Defendant’s statements were taken in violation of his

14 Fifth Amendment rights. There is a brief discussion of whether certain of Defendant’s

15 statements were “voluntary,” but the context suggests that what the parties were

16 discussing was not voluntariness for due process purposes, but rather whether

17 Defendant’s statements were either spontaneously volunteereed or made in response

18 to police interrogation for Miranda purposes. [RP 142] See State v. Fekete, 120 N.M.


                                             15
 1 290, 298, 901 P.2d 708, 716 (1995) (“A claim that the police coerced a statement [in

 2 violation of due process] requires a different analysis than a claim that an accused

 3 voluntarily waived his or her Fifth Amendment protections under Miranda.”).

 4 Because there seemed to have been no discussion about the possibility of coercion or

 5 police overreaching, which is the appropriate due process analysis, we proposed to

 6 conclude that the issue was not preserved. Defendant has not responded to this

 7 Court’s preservation analysis and fails to argue either that the issue was in fact

 8 preserved or that this Court may review the issue regardless of whether it was

 9 preserved.   [2d MIO 10-15] Accordingly, we affirm on the basis of lack of

10 preservation.

11       Furthermore, even if we are incorrect and Defendant did preserve his argument,

12 we would hold that the evidence showed that Defendant’s statements were voluntary.

13       A confession is involuntary only if official coercion has occurred.
14       Official coercion occurs when a defendant’s will has been overborne and
15       his capacity for self-determination [has been] critically impaired. If,
16       however, the confession is the product of an essentially free and
17       unconstrained choice by its maker, it may be used against the defendant
18       without offending due process. On appeal, we review the totality of the
19       circumstances to determine as a threshold matter of law whether the
20       State has proved by a preponderance of the evidence that Defendant's
21       confession was voluntary.




                                            16
 1 State v. Lobato, 2006-NMCA-051, ¶ 9, 139 N.M. 431, 134 P.3d 122 (alteration in

 2 original) (internal quotation marks and citations omitted).        “[W]ithout police

 3 misconduct, there is no basis for concluding that any state actor has deprived a

 4 criminal defendant of due process of law.” Fekete, 120 N.M. at 299, 901 P.2d at 717

 5 (internal quotation marks and citation omitted).

 6        Defendant contends that his “seriously debilitated physical and mental state”

 7 was evidence that his statements were not voluntary. [MIO 17] However, as this

 8 Court has noted previously, while a defendant’s physical and mental state may be

 9 otherwise relevant to the question of how much weight a jury should give any

10 statements, those factors are not relevant to the question of voluntariness for due

11 process purposes since they do not demonstrate official coercion. See Lobato, 2006-

12 NMCA-051, ¶ 11 (noting that evidence that a defendant was tired, hungry, or

13 suffering from the effects of alcohol does not demonstrate that his statement was

14 involuntary in the absence of coercive law enforcement activity); see also Fekete, 120

15 N.M. at 299, 901 P.2d at 717 (stating that “a defendant’s mental state at the time he

16 or she makes incriminating statements to the police is only one factor for the trial

17 court to consider when determining whether such statements were voluntary” and

18 holding that the fact the defendant was suffering from a mental illness when he was


                                             17
 1 questioned did not render his statements involuntary since the police “did not threaten

 2 or coerce” the defendant or “promise him special treatment if he talked to them”).

 3 Defendant’s primary argument seems to be that he was in pain and that there is some

 4 possibility that the hospital had given him pain medication. [MIO 17; 2d MIO 12]

 5 Defendant also asserts that the officers’ conduct in questioning Defendant under such

 6 circumstances itself constitutes overreaching, but has cited no authority to support his

 7 argument that the act of questioning a person who is in pain constitutes a coercive

 8 police practice when the police did not cause the pain and are not contributing to it.

 9 [2d MIO 12-15] Where Defendant cites no authority in support of his claim that

10 police questioning of someone who is in pain and in a hospital constitutes a due

11 process violation, we will assume that no such authority exists. See In re Adoption of

12 Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). Accordingly, we conclude no

13 due process violation occurred.

14        We also hold that Defendant’s statements were not elicited in violation of his

15 Miranda rights. Miranda warnings are only required when a person is (1) subject to

16 an interrogation, and (2) while in police custody. State v. Munoz, 1998-NMSC-048,

17 ¶¶ 39-40, 126 N.M. 535, 972 P.2d 847. Here, we proposed to affirm because it does

18 not appear that Defendant’s statements were made in response to questions by the


                                              18
 1 police, but instead appear to have been spontaneously volunteered. Defendant’s

 2 second memorandum in opposition does not directly address this conclusion and

 3 instead focuses on the issue of whether Defendant was in custody. [2d MIO 15-18]

 4 Because Defendant has not shown that our conclusion that his statements were

 5 spontaneously volunteered is incorrect, we now determine there was no error in the

 6 district court’s refusal to suppress this evidence.          See Hennessy v. Duryea,

 7 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly

 8 held that, in summary calendar cases, the burden is on the party opposing the proposed

 9 disposition to clearly point out errors in fact or law.”).

10        “Interrogation occurs when an officer subjects an individual to questioning or

11 circumstances which the officer knows or should know are reasonably likely to elicit

12 incriminating responses.” Fekete, 120 N.M. at 300, 901 P.2d at 718 (internal

13 quotation marks and citation omitted). “[S]tatements which the police did not attempt

14 to elicit, and statements made during custodial interrogation that may be in response

15 to police questioning but are unresponsive to the questions asked” are volunteered and

16 do not give rise to any rights under Miranda. Fekete, 120 N.M. at 300, 901 P.2d at

17 718. In this case, it appears that while Defendant was sitting in the break room of the

18 hospital, Detective Weisheit came in and asked Defendant if he would like to go


                                              19
 1 upstairs to talk to him. In response, Defendant apparently said “You kind of caught

 2 me.” [RP 16, 133, 327] We hold that Detective Weisheit’s question was not the sort

 3 of question intended to elicit an incriminating response, because the expected response

 4 to such a question is either yes or no—not an immediate confession. Accordingly, we

 5 hold that Defendant’s statement was volunteered.

 6        It appears that after Defendant made his first statement, Detective Weisheit took

 7 Defendant upstairs and began to advise him of his Miranda rights. [RP 16] Detective

 8 Weisheit began to review a waiver of rights document, and in the middle of the

 9 review, Defendant said “[I]f I have done some horrible thing, which it seems I have,

10 then I need to see an attorney.” [RP 16, 141] We hold that the district court did not

11 err in refusing to suppress this statement because it was both spontaneously

12 volunteered and because Defendant had already been advised of his rights when he

13 made it.

14        Defendant also made a few more statements at the hospital, which were: “I

15 would never do anything like that but if, somebody, if actually did that euthanasia.

16 Cause I am f—ing insane. That’s crazy. I could never even, in my lifetime anyway.”

17 [RP 150-51; MIO 15; 2d MIO 10] We note that we failed to specifically address these

18 statements in our second notice of proposed summary disposition—perhaps because


                                             20
 1 none of Defendant’s arguments or authorities were relevant to the legal issues raised

 2 in the district court regarding the statements.       The record indicates that these

 3 statements were made to hospital staff and that an officer merely overheard

 4 Defendant. [RP 142-43 (Euthanasia is incorrectly transcribed as “ufanataion” and

 5 “ufination.”), 147-48 (State’s brief arguing that a statement to a health care provider

 6 should not be excluded under Miranda), 150-51 (district court’s order indicating that

 7 the statements were made to a medical professional but were not a confidential

 8 communication for purposes of diagnosis or treatment under Rule 11-504 NMRA)].

 9 As Defendant has not argued that the district court erred in concluding that these

10 statements should not be excluded because they were made to a health care provider,

11 we see no error. See Hennessy, 1998-NMCA-036, ¶ 24 (“Our courts have repeatedly

12 held that, in summary calendar cases, the burden is on the party opposing the proposed

13 disposition to clearly point out errors in fact or law.”).

14        Issue I: We granted Defendant’s motion to amend his docketing statement to

15 add this issue, in which he raises additional claims of ineffective assistance of counsel.

16 These claims are based on his trial counsel’s failure to explore Defendant’s past brain

17 injuries, failure to locate character witnesses, failure to explain to the jury that

18 Defendant had no prior criminal record, and failure to present medical records that


                                               21
 1 appellate counsel seems to assume would have shown that Defendant’s forehead

 2 injury occurred prior to when he was hit by Mr. Contreras. [MIO 23-26] As with

 3 Defendant’s other claims of ineffective assistance, we cannot conclude on the record

 4 before us that Defendant has established a prima facie case of either an unreasonable

 5 error on the part of his trial counsel or that the results of the trial likely would have

 6 been different if trial counsel had done as appellate counsel suggests.

 7        Therefore, for the reasons stated in this opinion and in this Court’s first and

 8 second notices of proposed summary disposition, we affirm.

 9        IT IS SO ORDERED.


10                                          __________________________________
11                                          JONATHAN B. SUTIN, Judge

12 WE CONCUR:



13 _________________________________
14 CYNTHIA A. FRY, Chief Judge



15 _________________________________
16 RODERICK T. KENNEDY, Judge




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