 1    This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                            NO. 28,568

10 ERNEST PACHECO,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Kenneth H. Martinez, District Judge

14 Gary K. King, Attorney General
15 Farhan Khan, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Albright Law & Consulting
19 Jennifer R. Albright
20 Albuquerque, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 FRY, Chief Judge.

24          Defendant appeals the district’s court affirmance of his metropolitan court

25 conviction for driving while intoxicated (first offense), careless driving, and leaving
 1 the scene of an accident. On appeal, Defendant asserts that he received ineffective

 2 assistance of counsel at trial and that the trial court erred by denying his motion to

 3 suppress, by refusing to allow him to introduce photographic evidence, and by

 4 denying him a second peremptory challenge to strike an alternate juror. Having duly

 5 considered Defendant’s arguments, we affirm the decision of the district court.

 6 BACKGROUND

 7        On December 16, 2005, Defendant was charged with one count of DWI, one

 8 count of careless driving, and one count of leaving the scene of an accident following

 9 a report by Ms. Throgmorton that Defendant sideswiped her vehicle and then drove

10 off. Based upon Ms. Throgmorton’s report, Officer Locke conducted an investigation

11 that ended with Defendant’s being arrested at his home. Defendant asserted at trial

12 that he owns two similar vehicles, one of which is driven by his daughter. Defendant

13 argued that his son-in-law, not he, was the driver of the vehicle involved in the hit-

14 and-run and attempted to introduce photographs of the two vehicles at trial. The

15 photographs were ruled inadmissible, and Defendant was convicted of all three

16 charges pursuant to a jury trial in metropolitan court. Defendant appealed to the

17 district court, which affirmed his convictions. This appeal followed.

18 DISCUSSION

19 Ineffective Assistance of Counsel


                                             2
 1        Defendant argues that he received ineffective assistance of counsel resulting in

 2 prejudice against him and leading directly to his conviction. Claims of ineffective

 3 assistance of counsel present mixed questions of law and fact subject to de novo

 4 review. State v. Dylan J., 2009-NMCA-027, ¶ 33, 145 N.M. 719, 204 P.3d 44.

 5        There is a two-fold test for proving ineffective assistance of counsel: Defendant

 6 must show (1) that counsel’s performance fell below that of a reasonably competent

 7 attorney, and (2) that Defendant was prejudiced by the deficient performance. State

 8 v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. The burden of proof

 9 is on Defendant to prove both prongs. Id. We note that counsel is presumed

10 competent. State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M. 448, 10 P.3d 127.

11        Defendant contends that, during discovery, trial counsel failed to disclose to the

12 State photographs that purportedly supported his defense. Counsel’s failure to timely

13 disclose the photographs resulted in the trial court’s refusal to accept the photographs

14 into evidence. Defendant also argues that trial counsel failed to investigate his

15 defense because he did not request the computer-aided dispatch logs, interview or

16 subpoena witnesses, or list possible witnesses in discovery.

17        In analyzing Defendant’s claim, we assume without deciding that a reasonably

18 competent attorney would have conducted an investigation into the validity of his

19 client’s defense and timely provided evidence to the opposing party in discovery.


                                              3
 1 However, the record provides no support for Defendant’s claim that the lack of

 2 photographs at trial and the absence of witnesses other than Defendant resulted in

 3 unfair prejudice against him at trial. The record does not show what the photographs

 4 depicted, what the witnesses would have testified to, or what the computer-aided

 5 dispatch logs would have shown.

 6        “When an ineffective assistance claim is first raised on direct appeal, we

 7 evaluate the facts that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19,

 8 132 N.M. 657, 54 P.3d 61. “If facts necessary to a full determination are not part of

 9 the record, an ineffective assistance claim is more properly brought through a habeas

10 corpus petition, although an appellate court may remand a case for an evidentiary

11 hearing if the defendant makes a prima facie case of ineffective assistance.” Id. Here,

12 Defendant failed to meet his burden of showing prejudice, and he therefore did not

13 establish a prima facie case of ineffective assistance. Consequently, we decline to

14 remand for an evidentiary hearing. Because Defendant’s position is that items not

15 included in the record (such as the photographs) will support his argument, a petition

16 for habeas corpus is the appropriate avenue through which he may seek relief.

17        Defendant also asserts that counsel’s direct examination of Defendant at trial

18 was poor because he did not ask the proper questions, resulting in admonishment by

19 the judge, and failed to elicit clear answers from his client that would establish his


                                              4
 1 defense, and that counsel’s cross-examination of witnesses was not detailed enough.

 2 Defendant also argues that trial counsel’s closing argument included “what appears

 3 to have been very close to an allegation” of impropriety on the part of the prosecution.

 4        Because it is part of the record, we are able to review counsel’s performance at

 5 trial to determine whether it fell below that of a reasonably competent attorney. See

 6 State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (“The test for

 7 ineffective assistance of counsel is whether defense counsel exercised the skill of a

 8 reasonably competent attorney.”). Defendant’s attorney asked questions of the

 9 witnesses and made objections. He moved for a directed verdict and for suppression

10 of evidence. During direct examination of Defendant, the judge did admonish the trial

11 attorney to ask specific questions.

12        Although trial counsel may not have conducted himself perfectly, we cannot say

13 that his actions fell below those of a reasonably competent attorney. Neither was trial

14 counsel’s performance so poor as to unfairly prejudice Defendant. See State v.

15 Schoonmaker, 2008-NMSC-010, ¶ 32, 143 N.M. 373, 176 P.3d 1105 (noting that

16 ineffective assistance of counsel occurs when the allegedly incompetent representation

17 prejudiced the case such that but for counsel’s error, there is a reasonable probability

18 that the result of the proceeding would have been different). The record does not




                                              5
 1 support a finding that Defendant’s attorney was so deficient at trial that the outcome

 2 of the proceeding is in question. We affirm on this issue.

 3 Motion to Suppress

 4        At trial, Defendant filed a motion to suppress evidence, arguing that his arrest

 5 at his home violated the exception to the misdemeanor arrest rule and that all

 6 information obtained after the arrest should have been excluded from trial. NMSA

 7 1978, Section 66-8-125 (1978) provides that an officer may arrest an individual

 8 present at the scene of an accident as long as the arresting officer has reasonable

 9 grounds, based on personal investigation, to believe the person has committed a crime.

10 Section 66-8-125(A), (B).

11        Defendant argues that because he was not present at the scene of the accident

12 and because the offense was not committed in the presence of the officer, his arrest

13 was unlawful. However, our Supreme Court recently held that an officer may arrest

14 an individual not present at the scene of an accident as long as the officer has

15 developed reasonable grounds to believe the individual committed a crime and the

16 arrest took place with reasonable promptness after the time of the accident. See City

17 of Las Cruces v. Sanchez, 2009-NMSC-026, ¶¶ 15-16, 146 N.M. 315, 210 P.3d 212

18 (holding that where information obtained at the scene of an accident that was

19 corroborated by eyewitnesses and provided adequate grounds to believe the defendant


                                              6
 1 had committed the crime of DWI, the defendant’s arrest at his home near the scene of

 2 the accident promptly after the accident occurred was permissible under Section 66-8-

 3 125(B)).

 4        In this case, the accident was reported at 7:14 p.m., and the officer arrived at

 5 Defendant’s house at approximately 7:40 p.m., less than an hour later. Defendant was

 6 arrested near the scene of the accident within reasonable promptness after the police

 7 officer’s investigation suggested that Defendant was the perpetrator of the hit-and-run

 8 accident.   Under Sanchez, Defendant’s arrest fits within the exception to the

 9 misdemeanor arrest rule and we therefore affirm the metropolitan court’s denial of

10 Defendant’s motion to suppress. See § 66-8-125(B).

11 Exclusion of Evidence

12        Defendant argues that the metropolitan court erred by failing to allow him to

13 introduce as evidence photographs for impeachment purposes. We review a trial

14 court’s admission or exclusion of evidence for abuse of discretion. See State v.

15 Worley, 100 N.M. 720, 723, 676 P.2d 247, 250 (1984). An abuse of discretion occurs

16 when the ruling is clearly against the logic and effect of the facts and circumstances

17 of the case. State v. Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (filed

18 1998). “We cannot say the trial court abused its discretion by its ruling unless we can




                                              7
 1 characterize it as clearly untenable or not justified by reason.” Id. (internal quotation

 2 marks and citation omitted).

 3        At trial, Defendant moved to introduce into evidence two photographs that he

 4 claims supported his defense. The trial court ruled the photographs were inadmissible

 5 due to Defendant’s failure to disclose the photographs during discovery as required

 6 under Rule 7-504(B) NMRA. Defendant argues on appeal that the photographs were

 7 improperly excluded because they were offered as demonstrative evidence for

 8 impeachment purposes only and were not subject to disclosure during discovery under

 9 Rule 7-504(B). In support of his argument, Defendant cites State v. Ruiz, 2007-

10 NMCA-014, 141 N.M. 53, 150 P.3d 1003, cert. denied 2007-NMCERT-001, 141

11 N.M. 163, 152 P.3d 150. However, Ruiz does not support Defendant’s argument and

12 instead holds that Rule 5-502(A)(1) NMRA, the district court counterpart to Rule 7-

13 504(B), requires a defendant to disclose all evidence he intends to introduce at trial

14 prior to trial. See Ruiz, 2007-NMCA-014, ¶¶ 41-43. We therefore conclude that the

15 trial court properly acted within its discretion in excluding the photographs offered by

16 Defendant, given Defendant’s failure to comply with Rule 7-504(B).

17 Peremptory Challenge

18        Finally, Defendant argues that the metropolitan court erred by denying him a

19 second peremptory strike during jury selection. Rule 7-605(C) NMRA allows each


                                               8
 1 party two peremptory strikes of jurors. Defendant exercised one peremptory strike

 2 and attempted to exercise his second peremptory strike on the alternate juror, but the

 3 metropolitan court judge ruled that he could not use the strike for an alternate juror.

 4 The judge’s ruling was therefore contrary to Rule 7-605(C).

 5        Although the trial court’s ruling was in error, Defendant did not object at the

 6 time of the ruling and has failed to preserve this issue for appeal. In order to preserve

 7 an issue for appeal, a defendant must make a timely objection that specifically

 8 apprises the trial court of the nature of the claimed error and invokes an intelligent

 9 ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280.

10 Defendant did not draw the trial court’s attention to its violation of Rule 7-605(C) and

11 therefore failed to give the trial court the opportunity to correct its error by letting

12 Defendant strike a second juror. We will not consider this argument for the first time

13 on appeal.

14 CONCLUSION

15        For the reasons stated, we affirm the decision of the trial court.

16        IT IS SO ORDERED.



17
18                                          CYNTHIA A. FRY, Chief Judge




                                               9
1 WE CONCUR:



2
3 MICHAEL D. BUSTAMANTE, Judge



4
5 ROBERT E. ROBLES, Judge




                             10
