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 1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Filed: November 7, 2013

 3 STATE OF NEW MEXICO,

 4          Plaintiff-Appellee,

 5 v.                                                                            NO. 33,290

 6 MOISES MARTIN MENCHACA,

 7          Defendant-Appellant.


 8 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 9 Fernando R. Macias, District Judge


10 Bennett J. Baur, Acting Chief Public Defender
11 Nina Lalevic, Assistant Appellate Defender
12 Santa Fe, NM

13 for Appellant

14 Gary K. King, Attorney General
15 Ann M. Harvey, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18                                             DECISION
 1 CHÁVEZ, Justice.

 2   {1}   Moises Menchaca appeals directly to this Court from a life sentence stemming

 3 from a conviction of first degree murder. Menchaca was convicted of one count of

 4 willful and deliberate murder contrary to NMSA 1978, Section 30-2-1(A)(1) (1994).

 5 Menchaca was also convicted of conspiracy to commit first degree murder, shooting

 6 at a dwelling or occupied building, aggravated battery, and aggravated assault with a

 7 deadly weapon. On appeal, Menchaca presents the following arguments: (1) the four-

 8 year delay in bringing him to trial violated his constitutional right to a speedy trial, (2)

 9 his trial counsel was ineffective for failing to assert his speedy trial right earlier in the

10 proceeding and failing to properly impeach the two co-defendants, (3) the district

11 court erred in admitting Menchaca’s cell phone records, (4) the district court erred in

12 not holding an evidentiary hearing on alleged prosecutorial misconduct, (5) a proper

13 chain of custody was not established for the admission of Menchaca’s red shirt and

14 cell phone, and (6) his convictions were not supported by sufficient evidence. We

15 reject each of Menchaca’s arguments and affirm his convictions.

16 FACTS

17   {2}   On the night of September 7, 2007, Menchaca went to a party with two of his

18 friends, Benjamin Tapia and Isaac Ramirez. A fight broke out and the three friends


                                                 2
 1 left after the host punched Menchaca in the face. They armed themselves and returned

 2 to the party. Menchaca opened fire on the house, killing one guest and injuring two

 3 others. Menchaca’s case took almost four years to litigate. The facts are further

 4 developed in the appropriate sections of this decision.

 5 DISCUSSION

 6 I.      MENCHACA’S SPEEDY TRIAL RIGHTS WERE NOT VIOLATED

 7   {3}   Menchaca argues that the forty-seven month pre-trial delay denied him his

 8 constitutional right to a speedy trial. U.S. Const. amend. VI; N.M. Const. art. II, § 14.

 9 According to Menchaca, the nearly four-year delay is presumptively prejudicial, and

10 the reasons for the delay weigh against the State. Menchaca also argues that he

11 sufficiently invoked his speedy trial rights by asserting them shortly before trial.

12 Finally, Menchaca argues that he suffered actual prejudice from the delay because of

13 the death of an exculpatory witness.

14   {4}   We evaluate speedy trial claims by balancing the factors articulated in Barker

15 v. Wingo, 407 U.S. 514, 530-32 (1972): “(1) the length of the delay, (2) the reasons

16 given for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4)

17 prejudice to the defendant.” State v. Collier, 2013-NMSC-015, ¶ 39, 301 P.3d 370

18 (internal quotation marks and citation omitted). “On appeal, we give deference to the


                                               3
 1 [district] court’s factual findings, but we review the weighing and the balancing [of]

 2 the Barker factors de novo.” Id. (alterations in original) (internal quotation marks and

 3 citations omitted).

 4 A.      The length of delay was presumptively prejudicial

 5   {5}   Menchaca argues that the length of the delay in his case was presumptively

 6 prejudicial and should weigh in his favor. We agree. In State v. Garza, 2009-NMSC-

 7 038, ¶ 48, 146 N.M. 499, 212 P.3d 387, we issued guidelines for determining when

 8 a delay is presumptively prejudicial. Under the Garza guidelines, a delay of eighteen

 9 months is presumptively prejudicial for complex cases. Id.

10   {6}   That this case was complex is beyond dispute. Menchaca was charged with

11 nine counts, including a capital offense; his case was joined with the cases of two co-

12 defendants; the shooting involved multiple victims, requiring extensive forensic

13 analysis; and the case involved more than eighty witnesses and 885 pages of written

14 discovery. Under the Garza guidelines, a delay of eighteen months in complex cases

15 such as this one is presumptively prejudicial. Id. Menchaca was arrested on

16 September 8, 2007, and trial commenced on August 5, 2011, constituting a delay of

17 forty-seven months. Therefore, Menchaca’s trial delay was presumptively prejudicial.

18   {7}   However, length of delay alone is not dispositive. Barker presents a balancing


                                              4
 1 test, and no one factor alone is sufficient to find a violation of the right. See Garza,

 2 2009-NMSC-038, ¶ 23. “[A] ‘presumptively prejudicial’ length of delay is simply a

 3 triggering mechanism, requiring further inquiry into the Barker factors.” Id. ¶ 21.

 4 Thus, finding Menchaca’s delay presumptively prejudicial does not end the inquiry

 5 into whether his speedy trial rights were violated; instead, we balance the other Barker

 6 factors.

 7 B.      The reasons for delay do not weigh heavily against the State

 8   {8}   We examine the second Barker factor by “allocating the reasons for the delay

 9 to each side and determining the weight attributable to each reason.” State v.

10 Tortolito, 1997-NMCA-128, ¶ 8, 124 N.M. 368, 950 P.2d 811. There are three types

11 of delay, each of which carries a different weight. Garza, 2009-NMSC-038, ¶ 25

12 (citing Barker, 407 U.S. at 531). First, prosecutorial “‘bad faith in causing delay will

13 be weighed heavily against the government.’” Id. (quoting Doggett v. United States,

14 505 U.S. 647, 656 (1992) (citation omitted)). Second, negligent or administrative

15 delay weighs less heavily against the government. Id. ¶ 26. Finally, delays for “‘a

16 valid reason, such as a missing witness, should serve to justify appropriate delay.’”

17 Id. ¶ 27 (quoting Barker, 407 U.S. at 531).

18 1.      Delay attributable to Menchaca


                                              5
 1   {9}    Menchaca caused or contributed to delay throughout this case.              As a

 2 preliminary matter, Menchaca declined a public defender and failed to retain private

 3 counsel for nearly three months. Menchaca then caused delay by filing a joint motion

 4 to continue on July 1, 2009, which the district court granted, giving the parties a six-

 5 month extension. We also attribute the December 29, 2009 stipulated order to

 6 Menchaca because the continuance was requested jointly by all of the parties.1 The

 7 continuance resulted in resetting the trial from January 19, 2010 to July 12, 2010, a

 8 delay of approximately six months. Finally, Menchaca caused a two-week delay by

 9 excusing Judge Schultz in February 2011.

10   {10}   “[D]elay occasioned by the accused will weigh heavily against him.” State v.

11 Harvey, 1973-NMCA-080, ¶ 7, 85 N.M. 214, 510 P.2d 1085. We find a total of one

12 year and three months of delay attributable to Menchaca. This delay weighs heavily


            1
13           Although Menchaca now argues that he did not have notice of the stipulated
14   order, we attribute the stipulated order to Menchaca for several reasons. First, the
15   grounds for the order included providing more time for Menchaca to schedule witness
16   interviews and allowing counsel for co-defendant Ramirez to conduct a death penalty
17   trial. The stipulated order was sought by defense counsel to benefit the defense, so
18   we do not attribute the delay to the State. Second, the record reflects three
19   unsuccessful attempts to contact Menchaca’s counsel regarding the order, so it is
20   plausible that Menchaca did not have notice of the order. However, if he were truly
21   surprised by the stipulated order and did not wish to stipulate, he could have objected.
22   He did not object; thus, we attribute the stipulated order and resulting delay to
23   Menchaca.

                                                6
 1 against him.

 2 2.       Delay attributable to the State

 3   {11}   The State bears the burden of moving the case forward. See Barker, 407 U.S.

 4 at 527 (noting that “[a] defendant has no duty to bring himself to trial; the State has

 5 that duty. . . .” (footnote omitted). Therefore, even administrative or negligent delay

 6 will be attributed to the State and weighed against the State, although not as heavily

 7 as intentional efforts to harm the defense through delay. Garza, 2009-NMSC-038, ¶

 8 26. In this case, there is no evidence of intentional delay. The delay attributable to

 9 the State is administrative or negligent.

10   {12}   Judicial reassignments “fall[] within the administrative burdens on the criminal

11 justice system,” and delay resulting from judicial reassignments is “considered

12 negligent delay and is weighed against the State accordingly.” Id. ¶ 29. The delay

13 caused by the trial resetting pending Judge Bridgforth’s retirement is negligent delay

14 which weighs against the State. The State caused additional delay by excusing Judge

15 Murphy. Approximately two months elapsed between the reassignment to Judge

16 Murphy and the notice of assignment to Judge Schultz. Therefore, approximately two

17 months of administrative delay caused by judicial reassignments weighs against the

18 State.


                                                7
 1   {13}   The remainder of the delay was caused by continuances. As discussed above,

 2 we do not attribute to the State those continuances that were sought by the defense.

 3 Menchaca concedes that he consented to or did not object to the State’s continuances.

 4 The record shows that he either stipulated, took no position, or failed to object to each

 5 continuance. Menchaca first stipulated to a motion for continuance on March 17,

 6 2008, which the State requested due to the large volume of discovery and the lack of

 7 forensic testing results available at the time.        The district court granted the

 8 continuance and extended the time limit for six months. This delay was for a valid

 9 reason, and it does not weigh against the State.

10   {14}   Menchaca took no position on the State’s September 25, 2008 petition to this

11 Court for a six-month extension of time to commence trial, which this Court granted.

12 Menchaca stipulated to the State’s March 13, 2009 petition to this Court for an

13 additional six-month extension of time to commence trial. Menchaca stipulated to yet

14 another extension of time on September 30, 2009, in the State’s second petition to the

15 district court for extension of time within which to commence trial. The district court

16 granted the motion and extended the time limits by six months to April 1, 2010. On

17 March 30, 2010, Menchaca took no position on the State’s petition to the district court

18 for another six-month extension, which the district court granted. Thus, Menchaca


                                               8
 1 consented to four extensions, resulting in a delay of two years. Since Menchaca

 2 consented to the continuances, the resulting delay weighs only slightly against the

 3 State.

 4   {15}   Of the nearly four-year delay, six months of delay was for a valid reason and

 5 does not weigh against the State. Two months of administrative delay weigh against

 6 the State. Two years of additional neutral delay weighs against the State, but only

 7 slightly, because Menchaca consented to it. On the other hand, one year and three

 8 months of delay weighs heavily against Menchaca. Therefore, the second Barker

 9 factor weighs slightly against the State.

10 C.       Menchaca did not meaningfully assert his right to a speedy trial

11   {16}   “The defendant’s assertion of his [or her] speedy trial right . . . is entitled to

12 strong evidentiary weight in determining whether the defendant is being deprived of

13 the right. We emphasize that failure to assert the right will make it difficult for a

14 defendant to prove that he was denied a speedy trial.” Barker, 407 U.S. at 531-32.

15 Although a defendant’s failure to assert the right does not necessarily constitute

16 waiver, “the timeliness and vigor with which the right is asserted may be considered

17 as an indication of whether a defendant was denied needed access to speedy trial over

18 his [or her] objection or whether the issue was raised on appeal as afterthought.”


                                                9
 1 Garza, 2009-NMSC-038, ¶ 32. As the court noted in Barker, defendants may choose

 2 not to assert the right to speedy trial because “deprivation of the right may work to the

 3 accused’s advantage. Delay is not an uncommon defense tactic.” 407 U.S. at 521.

 4   {17}   Under the third Barker factor, we examine both the timing and the manner of

 5 the defendant’s assertion of the speedy trial right. Garza, 2009-NMSC-038, ¶ 32

 6 (citing State v. Maddox, 2008-NMSC-062, ¶ 28, 145 N.M. 242, 195 P.3d 1254,

 7 abrogation recognized by State v. Spearman, 2012-NMSC-023, ¶ 19, 283 P.3d 272).

 8 “An early assertion of the speedy trial right indicates the defendant’s desire to have

 9 the charges resolved rather than gambling that the passage of time will operate to

10 hinder prosecution.” Zurla v. State, 1990-NMSC-011, ¶ 19, 109 N.M. 640, 789 P.2d

11 588, modified on other grounds by Garza, 2009-NMSC-038, ¶¶ 21-22. Similarly, “the

12 closer to trial an assertion is made, the less weight it is given.” State v. Moreno, 2010-

13 NMCA-044, ¶ 33, 148 N.M. 253, 233 P.3d 782.

14   {18}   The timing of Menchaca’s assertion weighs against him. Menchaca had the

15 opportunity to assert his speedy trial right on many occasions in the years leading up

16 to his trial, yet he failed to do so until trial was nearly upon him. Menchaca failed to

17 assert his speedy trial right at two arraignments. He either stipulated or failed to

18 object to any of the State’s requested continuances over almost four years. He also


                                               10
 1 caused over one year of delay. Thus, Menchaca acquiesced to the delay, without

 2 asserting his speedy trial right, until he filed a motion to dismiss the indictment less

 3 than a month before trial began. This last-minute assertion does not support

 4 Menchaca’s claim that he meaningfully asserted his speedy trial right. See Barker,

 5 407 U.S. at 534 (finding no speedy trial violation where “[d]espite the fact that

 6 counsel had notice of the motions for continuances, the record shows no action

 7 whatever taken [for over three years] that could be construed as the assertion of the

 8 speedy trial right” (footnote omitted)).

 9   {19}   Moreover, the manner in which Menchaca asserted his right weighs against

10 him. When a defendant’s last-minute assertion of the speedy trial right comes in the

11 form of a motion to dismiss the indictment, we accord little weight to the defendant’s

12 assertion of that right.    See Maddox, 2008-NMSC-062, ¶¶ 29-31 (finding the

13 defendant’s motion to dismiss filed five days before trial was “neither timely nor

14 forceful” assertion of the right), abrogated on other grounds by Garza, 2009-NMSC-

15 038, ¶¶ 47-48; see also Tortolito, 1997-NMCA-128, ¶ 17 (finding the defendant’s late

16 assertion through a motion to dismiss did not weigh in the defendant’s favor).

17 Menchaca asserted his right to a speedy trial in the form of a motion to dismiss the

18 indictment without offering an alternative motion for immediate trial. This indicates


                                              11
 1 an attempt to secure the remedy of dismissal, but it does not indicate that Menchaca

 2 actually intended to assert his right to a speedy trial. Cf. Barker, 407 U.S. at 535

 3 (characterizing the defendant’s motion to dismiss without an alternative motion for

 4 immediate trial as evidence that the defendant “hoped to take advantage of the delay

 5 in which he had acquiesced, and thereby obtain a dismissal of the charges, [but] he

 6 definitely did not want to be tried”). Under these circumstances, we determine that

 7 Menchaca’s assertion of the speedy trial right was neither timely nor forceful. The

 8 third Barker factor does not weigh in his favor.

 9 D.       Menchaca was not prejudiced by the delay

10   {20}   “The heart of the right to a speedy trial is preventing prejudice to the accused.”

11 Garza, 2009-NMSC-038, ¶ 12. Menchaca argues that he suffered prejudice because

12 a potential witness, J.T. Melendres, died during the four years it took to bring

13 Menchaca to trial. Menchaca argues that Melendres’s testimony was essential to his

14 case because Melendres would have testified that he did not see Menchaca with Tapia

15 and Ramirez when they came to Melendres’s house to get a handgun before the

16 shooting. We conclude that Melendres’s death did not prejudice Menchaca.

17   {21}   We analyze prejudice to the accused in light of three interests: (1) preventing

18 oppressive pretrial incarceration, (2) minimizing the anxiety and concern of the


                                                12
 1 accused, and (3) limiting the possibility that the defense will be impaired. Garza,

 2 2009-NMSC-038, ¶ 35. The defendant bears the burden of production on the issue

 3 of prejudice. Maddox, 2008-NMSC-062, ¶ 32.

 4   {22}   Although the length of Menchaca’s pretrial incarceration was considerable,

 5 Menchaca does not argue that it was oppressive, nor the cause of excessive anxiety

 6 or concern.2 “[W]ithout a particularized showing of prejudice, we will not speculate

 7 as to the impact of pretrial incarceration on a defendant or the degree of anxiety a

 8 defendant suffers.” Garza, 2009-NMSC-038, ¶ 35. Therefore, Menchaca has not

 9 carried his burden regarding the first two interests of our prejudice analysis.

10   {23}   Instead, Menchaca argues that he was prejudiced because his defense was

11 impaired by Melendres’s death in March 2011. “The third type of prejudice is the

12 most serious.” Id. ¶ 36 (internal quotation marks and citation omitted). As such, the

13 defendant must “state[] with particularity what exculpatory testimony would have


            2
14          Menchaca argued in the district court that his lengthy pretrial incarceration was
15   oppressive because the jail was overcrowded, he had no opportunity to learn a skill
16   or continue his education, and he was deprived of direct physical contact with family
17   members. Menchaca fails to raise this argument on appeal. Therefore, we decline to
18   address it. See State v. Rendleman, 2003-NMCA-150, ¶ 50, 134 N.M. 744, 82 P.3d
19   554 (refusing to consider an argument made in the district court but not raised on
20   appeal), overruled on other grounds by State v. Myers, 2009-NMSC-016, ¶ 32, 146
21   N.M. 128, 207 P.3d 1105, reversed on other grounds by State v. Myers, 2011-NMSC-
22   028, ¶ 46, 150 N.M. 1, 256 P.3d 13.

                                               13
 1 been offered and . . . present evidence that the delay caused the witness’s

 2 unavailability.” Id. (internal quotation marks and citations omitted).

 3   {24}   Menchaca has not shown that Melendres’s death caused actual prejudice to the

 4 defense. Melendres was listed as a witness for the State. According to the State,

 5 Melendres would have testified that Menchaca was a member of the Southside Royal

 6 Knights gang, and that their gang color is red. The State claims that Melendres would

 7 have testified that he was friends with Menchaca and Ramirez, and Ramirez came to

 8 his house the night of the party and told him that Menchaca got jumped and wanted

 9 revenge. The State also claims that Melendres would have further testified that he saw

10 the getaway vehicle next to his house after the murder. Melendres’s testimony would

11 have supported the State’s case, not Menchaca’s. Although Menchaca reserved the

12 right to call Melendres, Melendres’s proposed testimony was not inherently

13 exculpatory. The fact that Melendres did not see Menchaca on the night of the

14 shooting does not establish that Menchaca did not commit the shooting. Thus,

15 Menchaca has not carried his burden regarding the third interest of our prejudice

16 analysis.

17 E.       Balancing test

18   {25}   Although Menchaca’s forty-seven month pre-trial delay was presumptively


                                             14
 1 prejudicial, upon balancing the other Barker factors, we do not find a constitutional

 2 violation. Menchaca agreed to delay his trial and did not assert his speedy trial right

 3 until the trial was imminent. Additionally, Menchaca failed to show that he was

 4 prejudiced by the delay. “[B]arring extraordinary circumstances, we would be

 5 reluctant indeed to rule that a defendant was denied this constitutional right on a

 6 record that strongly indicates, as does this one, that the defendant did not want a

 7 speedy trial.” Barker, 407 U.S. at 536. We conclude that Menchaca’s constitutional

 8 right to a speedy trial was not violated. We therefore affirm the district court’s denial

 9 of his motion to dismiss.

10 II.      MENCHACA HAS NOT ESTABLISHED THAT HIS COUNSEL WAS
11          INEFFECTIVE

12   {26}   Menchaca argues that his trial counsel was constitutionally ineffective by

13 failing to assert Menchaca’s speedy trial rights earlier in the proceeding. In addition,

14 Menchaca argues that his counsel was ineffective by failing to properly impeach the

15 two co-defendants with their previous statements. Neither of these arguments is

16 persuasive.

17   {27}   When a claim of ineffective assistance of counsel is first raised on direct appeal,

18 we evaluate the facts in the record. State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M.

19 657, 54 P.3d 61. In evaluating ineffective assistance of counsel claims, New Mexico

                                                15
 1 follows the test established in Strickland v. Washington, 466 U.S. 668, 687 (1984).

 2 See State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. The

 3 defendant must first show that counsel’s performance fell below that of a reasonably

 4 competent attorney. Strickland, 466 U.S. at 687. The defendant must then show that

 5 he was prejudiced by counsel’s deficient performance. Id. “A prima facie case for

 6 ineffective assistance of counsel is not made if there is a plausible, rational strategy

 7 or tactic to explain the counsel’s conduct.” Lytle v. Jordan, 2001-NMSC-016, ¶ 26,

 8 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted).

 9   {28}   Menchaca has failed to make a prima facie case of ineffective assistance of

10 counsel. Menchaca’s case was extremely complex due to the nature of the charges,

11 the number of co-defendants and witnesses, and the volume of discovery, including

12 forensic evidence. To provide a comprehensive and effective defense, Menchaca’s

13 counsel may have made a strategic decision not to demand a speedy trial. One reason

14 not to demand a speedy trial could be the amount of forensic evidence in this case.

15 It took a long time for the forensic tests to be completed and provided to the parties.

16 It may have been wise for counsel to wait for the test results because they could have

17 exonerated Menchaca or aided in his defense.

18   {29}   Menchaca does not point to anything in the record to show that his attorney’s


                                              16
 1 failure to assert his speedy trial rights earlier was not a tactical decision. “Without

 2 such prima facie evidence, the Court presumes that defense counsel’s performance fell

 3 within the range of reasonable representation.”                State v. Arrendondo,

 4 2012-NMSC-013, ¶ 38, 278 P.3d 517. Because the record is not sufficient to establish

 5 whether the actions taken by Menchaca’s counsel were reasonable, “this Court prefers

 6 that these claims be brought under habeas corpus proceedings so that the defendant

 7 may actually develop the record with respect to defense counsel’s actions.” Id.

 8   {30}   Regarding the impeachment of Ramirez and Tapia, we conclude that based on

 9 the record, Menchaca’s counsel properly and thoroughly impeached both witnesses.

10 During his cross-examination of Ramirez, Menchaca’s counsel asked Ramirez:

11          Q.    This is now the fourth story you’ve given regarding the events that
12          occurred September 7th and September 8th of 2007, correct?

13          A.    Yes, sir.

14          Q.    And all your stories are different, are they not?

15          A.    Yes, sir.

16          Q.    And you said you have some of your stories to protect Moises?

17          A.    Yes, sir.

18 Menchaca’s counsel then asked specific questions regarding Ramirez’s different

19 accounts. In fact, under questioning from Menchaca’s counsel, Ramirez admitted to

                                               17
 1 lying in previous accounts:

 2          Q.    You never said anything about going back to J.T. Melendres’s
 3          house.

 4          A.    I’m not sure what I said, sir. I don’t believe so.

 5          Q.    First story.

 6          A.     First story? I don’t remember it word for word what I said. I was
 7          just lying.

 8          ...

 9          Q.    You gave your first story?

10          A.    Yes, sir.

11          Q.    Which was full of lies?

12          A.    Yes, sir.

13          Q.    You lied?

14          A.    Yes sir.

15          Q.    You lied to Detective Rosa?

16          A.    Yes sir.

17   {31}   Menchaca’s counsel also effectively impeached Tapia. He specifically asked

18 Tapia about discrepancies between the first statement Tapia gave to police, which was

19 not recorded, and a later recorded statement given to Detective Edgar Rosa, refreshing


                                               18
 1 Tapia’s recollection by presenting him with the recorded statement. Menchaca’s

 2 counsel concluded his impeachment of Tapia with the following exchange:

 3          Q.    So you’ve got a couple of different stories here, don’t you?

 4          A.    Yeah.

 5   {32}   Defense counsel’s impeachment of Ramirez and Tapia was thorough.

 6 Menchaca’s counsel effectively placed the credibility of both witnesses at issue by

 7 using their prior accounts of events to point out inconsistencies in their trial testimony.

 8 III.     THE DISTRICT COURT PROPERLY ADMITTED MENCHACA’S
 9          CELL PHONE RECORDS

10   {33}   The shooting for which Menchaca was convicted began with an altercation at

11 James Bonnett’s house party.         That altercation ended with Bonnett punching

12 Menchaca in the face, knocking him unconscious. Ramirez and Tapia then took

13 Menchaca and left the premises. After they left, Tapia and Bonnett spoke on the

14 phone. Tapia told Bonnett his behavior was “fucked up” and asked why he hit “the

15 little homie.” Bonnett testified that he heard someone in the background say, “You

16 know what, fuck him. We’ll take care of it later.”

17   {34}   Shortly before they returned to the party, Menchaca called Ramirez’s cousins,

18 who were still at the party, and told them to leave the house. Ramirez, Tapia, and

19 Menchaca returned to Bonnett’s neighborhood in an SUV. Menchaca got out,

                                               19
 1 carrying weapons, and approached Bonnett’s house on foot while Ramirez and Tapia

 2 waited in the SUV. Menchaca called Tapia on his cell phone to ask them to move the

 3 SUV closer to the house and then opened fire.

 4   {35}   Menchaca argues that the district court erred in admitting his cell phone records

 5 through the testimony of Detective Rosa. The records admitted into evidence covered

 6 all call details and text usage from September 7, 2007 to September 8, 2007 occurring

 7 on a telephone number attributed to Menchaca. During Detective Rosa’s testimony,

 8 Menchaca objected to the admission of his cell phone records on the basis of hearsay

 9 and the Confrontation Clause of the Sixth Amendment. The district court ruled that

10 the cell phone records were admissible under Rule 11-902(K) NMRA (2007) and that

11 the records were not testimonial so as to require a Confrontation Clause analysis. On

12 appeal, Menchaca argues that the district court’s ruling was erroneous on both the

13 hearsay and the Confrontation Clause issues. We disagree.

14   {36}   “On review we defer to the trial judge’s decision to admit or exclude evidence

15 and we will not reverse absent a clear abuse of discretion.” State v. Apodaca,

16 1994-NMSC-121, ¶ 23, 118 N.M. 762, 887 P.2d 756. Appellate courts review de

17 novo the question of whether the Confrontation Clause has been violated by the

18 admission of hearsay evidence. State v. Tollardo, 2012-NMSC-008, ¶ 15, 275 P.3d


                                               20
 1 110.

 2   {37}   Under Rule 11-902(K), a certified record of a regularly conducted activity is

 3 admissible as a self-authenticating document if it meets the requirements of Rule 11-

 4 803(F) NMRA (2007). Rule 11-803(F) requires that the record was “made at or near

 5 the time by . . . a person with knowledge, if kept in the course of a regularly conducted

 6 business activity, and [making the record] was the regular practice of that business

 7 activity.”

 8   {38}   At trial, the State presented a subscribed and sworn certification of records from

 9 the custodian of records for the cell phone company, Cricket Communications, Inc.

10 The certification meets all of the requirements of Rule 11-803(F).              First, the

11 certification states “[t]he raw data contained in the records now provided was made

12 and captured by the computer at or near the time of the occurrence of the matters set

13 forth in the records.” See Rule 11-803(F) (requiring that the record “was made at or

14 near the time” of its occurrence). The certification also states “[t]he raw data, and the

15 documents and records created and provided herein were and are kept in the usual

16 course of the regular business activity of Cricket Communications, Inc., and it was/is

17 the regular practice of Cricket Communications to make and keep such raw data,

18 records, and documents.” See Rule 11-803(F) (requiring that (1) the record was kept


                                                21
 1 in the regular course of business, and (2) making the record was a regular practice of

 2 the business). Because the certification of records presented by the State meets the

 3 requirements of Rules 11-803 and 11-902, the district court did not abuse its discretion

 4 in admitting Menchaca’s phone records.

 5   {39}   We now turn to Menchaca’s argument that the admission of his phone records

 6 violated his constitutional right to confront witnesses against him. Pursuant to the

 7 Sixth Amendment to the United States Constitution, “[i]n all criminal prosecutions,

 8 the accused shall enjoy the right . . . to be confronted with the witnesses against him

 9 . . . .” This clause “bars the admission of testimonial statements of a witness who did

10 not appear at trial unless [the witness] was unavailable to testify, and the defendant

11 had . . . a prior opportunity for cross-examination.” State v. Gurule, 2013-NMSC-025,

12 ¶ 33, 303 P.3d 838 (internal quotation marks and citations omitted). A statement is

13 testimonial when its primary purpose “is to establish or prove past events potentially

14 relevant to later criminal prosecution.” State v. Navarette, 2013-NMSC-003, ¶ 8, 294

15 P.3d 435 (internal quotation marks and citation omitted).

16   {40}   We agree with the district court’s determination that Menchaca’s phone records

17 are not testimonial. The records were not created for the purpose of proving facts

18 relevant to an element of a crime. As discussed supra, the phone records themselves


                                              22
 1 were admissible as business records under Rule 11-902(K). Business records by their

 2 nature usually are not testimonial. See Crawford v. Washington, 541 U.S. 36, 56

 3 (2004) (“Most of the hearsay exceptions covered statements that by their nature were

 4 not testimonial—for example, business records or statements in furtherance of a

 5 conspiracy.”). In addition, an affidavit that merely authenticates an admissible record,

 6 such as the one presented in this case, is excepted from confrontation requirements.

 7 See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 322-23 (2009) (“A clerk could

 8 by affidavit authenticate or provide a copy of an otherwise admissible record, but

 9 could not . . . create a record for the sole purpose of providing evidence against a

10 defendant.”).

11 IV.      THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
12          DENYING MENCHACA’S MOTION FOR AN EVIDENTIARY
13          HEARING ON PROSECUTORIAL MISCONDUCT

14   {41}   Menchaca alleges that the prosecution engaged in misconduct by tampering

15 with witnesses. He claims that after Tapia pled but before Menchaca’s trial, a state

16 investigator removed Tapia from jail and took him to the District Attorney’s Office,

17 where the investigator discussed Ramirez’s story with Tapia, giving Tapia details of

18 what Ramirez said during a previous meeting with prosecutors. At trial, Menchaca’s

19 counsel requested an evidentiary hearing on the issue. The district court denied the


                                              23
 1 motion.

 2   {42}   We review the district court’s ruling on the issue of prosecutorial misconduct

 3 under a deferential abuse of discretion standard. State v. Trujillo, 2002-NMSC-005,

 4 ¶ 49, 131 N.M. 709, 42 P.3d 814. “[T]he trial court is in the best position to evaluate

 5 the significance of any alleged prosecutorial errors.” State v. Duffy, 1998-NMSC-014,

 6 ¶ 46, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by Tollardo, 2012-

 7 NMSC-008, ¶ 37 n.6. “The trial court’s determination of these questions will not be

 8 disturbed unless its ruling is arbitrary, capricious, or beyond reason.” Id.

 9   {43}   The district court did not abuse its discretion in denying Menchaca’s motion for

10 an evidentiary hearing on the issue of prosecutorial misconduct. The district court

11 noted that it is not improper for either the State or the defense to interview a potential

12 witness who is no longer a co-defendant and to acquire additional information from

13 that witness. In addition, the district court gave Menchaca’s counsel the opportunity

14 to question Tapia about what had occurred later in the proceedings. During cross-

15 examination, Menchaca’s counsel asked Tapia about Tapia’s interview with the state

16 investigator. Tapia only stated that Detective Rosa asked him about his cell phone

17 number; Tapia did not mention any discussion of Ramirez’s story.

18 V.       THE DISTRICT COURT DID NOT ERR IN                                ADMITTING
19          MENCHACA’S RED SHIRT AND CELL PHONE

                                               24
 1   {44}   Menchaca’s red shirt was significant at his trial because the altercation at

 2 Bonnett’s house party began when a guest insulted Menchaca over the color of his

 3 shirt by falsely implying that Menchaca was part of a gang whose members wore red.

 4 The shirt was also significant because at least one witness testified that she saw a man

 5 in a red shirt pacing in front of the house around the time of the shooting.

 6   {45}   After Menchaca called Tapia on his cell phone and asked his co-defendants to

 7 move closer to the residence, Menchaca shot at the house. At least two witnesses

 8 testified that they saw a man in a red shirt around the time of the shooting.

 9   {46}   Menchaca argues that the district court erred in admitting his red shirt and cell

10 phone into evidence without a proper chain of custody. The two items were recovered

11 through a consensual search of Menchaca’s residence. We conclude that a proper

12 chain of custody was established for the admission of both items through the

13 testimony of Detective Raul Ortiz.

14   {47}   “On review we defer to the trial judge’s decision to admit or exclude evidence

15 and we will not reverse absent a clear abuse of discretion.”                   Apodaca,

16 1994-NMSC-121, ¶ 23. “[T]o admit real or demonstrative evidence, the evidence

17 must be identified either visually or by establishing custody of the object from the

18 time of seizure to the time it is offered into evidence.” State v. Rubio, 2002-NMCA-


                                               25
 1 007, ¶ 16, 131 N.M. 479, 39 P.3d 144 (internal quotation marks and citation omitted).

 2 “The admission of real or demonstrative evidence does not require the State to

 3 establish the chain of custody in sufficient detail to exclude all possibility of

 4 tampering.” State v. Rodriguez, 2009-NMCA-090, ¶ 24, 46 N.M. 824, 215 P.3d 762.

 5 There is no abuse of discretion when a preponderance of the evidence shows the

 6 evidence “is what it purports to be.” State v. Sanchez, 1982-NMCA-155, ¶ 15, 98

 7 N.M. 781, 652 P.2d 1232.

 8   {48}   The record reflects that Detective Ortiz sufficiently identified the chain of

 9 custody for Menchaca’s red shirt and cell phone to be admitted into evidence.

10 Detective Ortiz testified that he was involved in the search of Menchaca’s home along

11 with Detective Mike Garcia, and that he was present when the red shirt and cell phone

12 were located in Menchaca’s bedroom. Detective Ortiz confirmed that he personally

13 observed Detective Garcia recover the phone and the red shirt and he confirmed

14 Detective Garcia’s signature on the recovery bag. Detective Ortiz identified the cell

15 phone as State’s Exhibit 117 and the red shirt as State’s Exhibit 116.

16 VI.      SUFFICIENCY OF THE EVIDENCE

17   {49}   Menchaca argues that his conviction was not supported by substantial evidence.

18 He specifically claims that the evidence presented at trial was not sufficient to prove


                                              26
 1 that he was the actual shooter. Menchaca also questions the credibility of several of

 2 the State’s witnesses. According to Menchaca, the evidence presented at trial points

 3 to Tapia as the shooter.

 4   {50}   “The test to determine the sufficiency of evidence is whether substantial

 5 evidence of either a direct or circumstantial nature exists to support a verdict of guilt

 6 beyond a reasonable doubt with respect to every element essential to a conviction.”

 7 State v. Montoya, 1984-NMSC-073, ¶ 4, 101 N.M. 424, 684 P.2d 510. “A reviewing

 8 court must view the evidence in the light most favorable to the state, resolving all

 9 conflicts therein and indulging all permissible inferences therefrom in favor of the

10 verdict.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. An

11 appellate court should not re-weigh the evidence to determine whether there was

12 another hypothesis that would support the defendant’s innocence or substitute its view

13 of the evidence for that of the fact-finder. State v. Garcia, 2005-NMSC-017, ¶ 12,

14 138 N.M. 1, 116 P.3d 72.

15   {51}   An abundance of evidence in the record points to Menchaca as the shooter.

16 Tapia testified that it was Menchaca’s idea to go to Melendres’s house, where Tapia

17 and Ramirez picked up a handgun. Ramirez testified that he, Tapia, and Menchaca

18 returned to Bonnett’s house, intending to shoot it up. Both Tapia and Ramirez


                                              27
 1 testified that when they arrived at Bonnett’s house, Menchaca left the vehicle and

 2 approached Bonnett’s house with at least one gun in his hand. At least two guests at

 3 the party testified that they saw someone wearing a red shirt around the time of the

 4 shooting. Both Tapia and Ramirez also testified that Menchaca returned to the SUV

 5 after the shooting with both guns. Ramirez identified Menchaca in court as the

 6 shooter. We therefore conclude that Menchaca’s conviction was supported by

 7 substantial evidence.

 8   {52}   Menchaca’s theory that Tapia was the shooter was rebutted by both Ramirez

 9 and Tapia. Ramirez specifically testified that Tapia did not pull the trigger on either

10 of the two guns. Tapia testified that he saw Menchaca exit the SUV with both guns,

11 heard shots, and then saw Menchaca running back to the SUV with the guns. In light

12 of the foregoing evidence, we conclude that there was substantial evidence for a

13 reasonable jury to convict Menchaca of first degree murder.

14 CONCLUSION

15   {53}   Because the issues raised in Menchaca’s appeal are without merit, we affirm all

16 of his convictions.

17   {54}   IT IS SO ORDERED.


18                                                 ______________________________

                                              28
1                                        EDWARD L. CHÁVEZ, Justice


2 WE CONCUR:



3 ___________________________________
4 PETRA JIMENEZ MAES, Chief Justice



5 ___________________________________
6 RICHARD C. BOSSON, Justice



7 ___________________________________
8 CHARLES W. DANIELS, Justice



 9 ___________________________________
10 BARBARA J. VIGIL, Justice




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