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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     NO. 34,155

 5 MANUEL S. CHAVEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Christina P. Argyres, District Judge


 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Tania Shahani, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 WECHSLER, Judge.
 1   {1}   Defendant Manuel Chavez appeals from his judgment and sentence entered

 2 upon a jury conviction for second degree murder contrary to NMSA 1978, Section 30-

 3 2-1(B) (1994). [RP 88, 90] Unpersuaded by Defendant’s docketing statement, we

 4 issued a notice of proposed summary disposition, proposing to affirm. In response to

 5 our notice, Defendant has filed a joint memorandum in opposition and motion to

 6 amend the docketing statement. Having carefully considered Defendant’s arguments,

 7 we remain unpersuaded, and therefore deny Defendant’s motion to amend and affirm

 8 the district court.

 9 MOTION TO AMEND

10   {2}   Defendant has moved to amend his docketing statement to add four new issues:

11 (1) whether the district court erred in issuing a jury instruction on voluntary

12 manslaughter that did not contain the sufficient-provocation element; (2) whether the

13 jury should have been given an instruction on involuntary manslaughter; (3) whether

14 defense counsel failed to provide effective assistance; and (4) whether Defendant’s

15 right to a speedy trial was violated. [MIO 1] None of these issues was preserved below

16 and Defendant asks this Court to review for fundamental error. [MIO 1-2] See State

17 v. Hodge, 1994-NMSC-087, ¶ 25, 118 N.M. 410, 882 P.2d 1 (explaining that

18 preservation of an alleged error is generally required for appellate review, but noting

19 that there is an exception that applies to cases involving fundamental error). For the

                                              2
 1 reasons that follow, we do not believe that Defendant has shown good cause to amend

 2 the docketing statement, and we therefore deny his motion. See Rule 12-208(F)

 3 NMRA (requiring good cause to amend docketing statement).

 4 A. Voluntary Manslaughter Instruction

 5   {3}   Defendant argues that the trial court erred in issuing a jury instruction that

 6 omitted an essential element. [MIO 4-6] Specifically, Defendant asserts that the

 7 voluntary manslaughter instruction given to the jury in this case omitted “element

 8 number three, an essential element which informs the jury that a defendant’s action[]

 9 result[s] from sufficient provocation.” [MIO 5] The jury instruction supplied to the

10 jury in this case does not, as Defendant points out, contain the third element in UJI 14-

11 220 NMRA, which states, “The defendant acted as a result of sufficient provocation.”

12 Instead, the third element in the jury instruction reads, “The defendant did not act in

13 self defense.” [RP 76]

14   {4}   Our Supreme Court’s opinion in State v. Parish, 1994-NMSC-073, 118 N.M.

15 39, 878 P.2d 988, controls in this case. In Parish, the jury convicted the defendant of

16 voluntary manslaughter, but “the jury was first asked to decide whether [the

17 defendant] committed second degree murder, which is distinguished from voluntary

18 manslaughter by the element of provocation.” Id. ¶ 21. The Court expressed concern

19 that the instruction on provocation contained language that was similar to the


                                               3
 1 instruction on self-defense. Id. ¶¶ 21-22. It stated: “The jury could easily have found

 2 that [the facts of the case] fell within the definition of self-defense. However, upon

 3 considering the instruction on voluntary manslaughter, the jury may also have found

 4 in these same facts the element of provocation. Both instructions describe a situation

 5 which arouses fear in the Defendant. . . .” Id. ¶ 22. As a result, it further stated: “It is

 6 plausible that a reasonable juror might be confused by first finding sufficient

 7 provocation to reduce the charge from second degree murder to voluntary

 8 manslaughter, and to then discard the concept of provocation and use the same facts

 9 that evinced provocation to prove self-defense.” Id. ¶ 23. It determined, in other

10 words, that the instructions on self-defense and provocation were “mutually

11 exclusive”—“[e]ither the Defendant is guilty of having been provoked into voluntary

12 manslaughter or he is innocent because he killed in self-defense.” Id. ¶ 22. It therefore

13 concluded that instructing the jury on both was inappropriate.

14   {5}   In this case, the district court appears to have recognized the conflict and, to

15 resolve it, the court instructed the jury consistent with the requirements set forth in

16 Parish. See id. ¶¶ 14, 23 (providing that the instruction proffered by the defendant in

17 that case (but refused by the trial court), which is identical in material respects to the

18 instruction supplied in this case, [RP 76] would have prevented the error that resulted

19 in reversal). In other words, in this case, Defendant was entitled to claim either self


                                                4
 1 defense or provocation; Defendant asserted that he acted in self defense, and he

 2 received an instruction in accordance with that claim consistent with Parish. Hence,

 3 we perceive no error, much less fundamental error. See State v. Barber, 2004-NMSC-

 4 019, ¶ 17, 135 N.M. 621, 92 P.3d 633 (providing that fundamental error only occurs

 5 in “cases with defendants who are indisputably innocent, and cases in which a mistake

 6 in the process makes a conviction fundamentally unfair notwithstanding the apparent

 7 guilt of the accused”).

 8 B. Failure to Instruct on Involuntary Manslaughter

 9   {6}   Defendant next challenges the district court’s failure to instruct on involuntary

10 manslaughter. [MIO 7] Defendant, however, failed to preserve this alleged error by

11 failing to tender or otherwise advocate for the inclusion of an involuntary

12 manslaughter instruction, and we therefore review for fundamental error only. [MIO

13 7] See State v. Sosa, 1997-NMSC-032, ¶ 23, 123 N.M. 564, 943 P.2d 1017 (“Having

14 failed to proffer accurate instructions, object to instructions given, or otherwise

15 preserve the issue for appeal, ... we will limit our evaluation to the claim of

16 fundamental error.”); Rule 5-608(D) NMRA (setting forth the preservation

17 requirements relative to jury instructions).

18   {7}   When jury instructions are at issue, fundamental error generally occurs when

19 the jury was not instructed on an essential element of an offense or when it otherwise


                                               5
 1 appears that “a reasonable juror would have been confused or misdirected by the jury

 2 instruction” at issue. See State v. Cunningham, 2000-NMSC-009, ¶ 14, 128 N.M. 711,

 3 998 P.2d 176 (internal quotation marks and citation omitted). Here, even assuming

 4 that Defendant was entitled to an instruction on involuntary manslaughter, see State

 5 v. Romero, 2005-NMCA-060, ¶ 17, 137 N.M. 456, 112 P.3d 1113 (“As we have held

 6 that self-defense was available to Defendant, the jury could have found that his

 7 beating of the victim was in the commission of a lawful act, but without due caution

 8 or circumspection due to her drunken state and liver condition.”), the failure to make

 9 any such assertion at the trial level is determinative of this issue. The decision not to

10 request the instruction may have been a conscious decision attributable to trial

11 strategy, and, if that is the case, we will not second-guess the tactical decisions of

12 counsel below. See State v. Boeglin, 1987-NMSC-002, ¶ 15, 105 N.M. 247, 731 P.2d

13 943 (“We hold that, consistent with the constitutional guarantees of a fair trial, the

14 defendant in a first degree murder prosecution may take his chances with the jury by

15 waiving instructions on lesser included offenses and cannot be heard to complain on

16 appeal if he has gambled and lost.”). Under these circumstances, we conclude that this

17 case does present a situation that meets the exacting standard requiring reversal due

18 to fundamental error.




                                               6
 1 C. Ineffective Assistance of Counsel

 2   {8}    Defendant alleges that counsel was ineffective for three reasons: (1) for failure

 3 to request the involuntary manslaughter instruction addressed above, (2) for failure

 4 to move to exclude Defendant’s statements to police while Defendant was allegedly

 5 intoxicated, and (3) for failure to assert Defendant’s right to speedy trial or move to

 6 dismiss on for violation of his right to a speedy trial. [MIO 10-11]

 7   {9}    Defendant has the burden of establishing a prima facie case of ineffective

 8 assistance. State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.

 9 Defendant may only establish a prima facie case by showing that his counsel’s

10 performance fell below the performance of a reasonably competent attorney and that

11 his counsel’s deficient performance prejudiced him. Patterson v. LeMaster,

12 2001-NMSC-013, ¶ 17, 130 N.M. 179, 21 P.3d 1032. “We indulge a strong

13 presumption that counsel’s conduct falls within the wide range of reasonable

14 professional assistance; that is, the defendant must overcome the presumption that,

15 under the circumstances, the challenged action might be considered sound trial

16 strategy.” State v. Dylan J., 2009-NMCA-027, ¶ 37, 145 N.M. 719, 204 P.3d 44

17 (internal quotation marks and citation omitted).

18   {10}   In considering an ineffective assistance of counsel claim, our review is limited

19 to an evaluation of the facts contained within the record. “If facts necessary to a full


                                                7
 1 determination are not part of the record, an ineffective assistance claim is more

 2 properly brought through a habeas corpus petition[.]” State v. Roybal, 2002-NMSC-

 3 027, ¶ 19, 132 N.M. 657, 54 P.3d 61. Here, Defendant claims of ineffectiveness relate

 4 to matters outside the record, and we are therefore unable to conclude that Defendant

 5 has made a prima facie showing of ineffective assistance of counsel. See State v.

 6 Cordova, 2014-NMCA-081, ¶ 15, 331 P.3d 980. With respect to the first alleged error

 7 relating to the involuntary manslaughter instruction, as we explained above, this

 8 decision could have been trial strategy, and we have repeatedly refused to “find

 9 ineffective assistance of counsel if there is a plausible, rational trial strategy or tactic

10 to explain counsel’s conduct.” State v. Allen, 2014-NMCA-047, ¶ 17, 323 P.3d 925.

11 Relative to counsel’s failure to move to exclude Defendant’s statements to police, the

12 resolution of this claim likewise depends on evidence not in the record, and we

13 therefore conclude that Defendant’s claim is more properly adjudicated in habeas

14 corpus proceedings. See Cordova, 2014-NMCA-081, ¶ 7 (explaining that our Supreme

15 Court has a preference that ineffective assistance of counsel claims be adjudicated in

16 habeas corpus proceeding, which “stems from a concern that the record before the

17 district court may not adequately document the sort of evidence essential to a

18 determination of trial counsel’s effectiveness” (alteration, internal quotation marks,

19 and citation omitted)); see also State v. Samora, 2013-NMSC-038, ¶ 23, 307 P.3d 328


                                                8
 1 (“Because we usually have insufficient information before us to evaluate an

 2 ineffective assistance claim on direct appeal, as in this case, this Court prefers that

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

 4 actually develop the record with respect to defense counsel’s actions.” (internal

 5 quotation marks and citation omitted)).

 6   {11}   For similar reasons, we also reject Defendant’s claim of ineffective assistance

 7 based on the failure to raise a speedy trial claim. To determine the merits of a speedy

 8 trial motion, we evaluate the four factors set forth in Barker v. Wingo, 407 U.S. 514

 9 (1972) (the Barker factors): length of delay, reasons for the delay, defendant’s

10 assertion of the right to a speedy trial, and prejudice to the defendant. See State v.

11 Collier, 2013-NMSC-015, ¶ 39, 301 P.3d 370.

12   {12}   Relative to this issue, we glean the following information based on the record

13 before us. First, it appears that the length of delay in this case was approximately two

14 and one-half years from the time of indictment to trial months—well over even the

15 eighteen-month presumptively prejudicial benchmark for complex cases. See State v.

16 Garza, 2009-NMSC-038, ¶ 48, 146 N.M. 499, 212 P.3d 387 (setting forth the

17 applicable benchmarks for determining when a delay is presumptively prejudicial for

18 purposes of speedy trial analysis).[RP 1, 57] Relative to the third Barker factor

19 (assertion of the right), it appears that Defendant did not, at any time in the


                                               9
 1 proceedings, assert his right to a speedy trial or assert that his right had been violated.

 2 [MIO 19-20] Finally, relative to the last Barker factor (prejudice), it appears that

 3 Defendant was incarcerated from the time of his arrest until sentencing—a period of

 4 approximately two and one-half years. [RP 95] See Barker, 407 U.S. at 532

 5 (identifying three potential sources of prejudice caused by delay as (1) oppressive

 6 pretrial incarceration, (2) anxiety and concern of the accused, and (3) impairment of

 7 the defense); accord State v. Garza, 2009-NMSC-038, ¶ 35, 146 N.M. 499, 212 P.3d

 8 387. Beyond this, however, we are unable to determine the merits of Defendant’s

 9 claim because the record is not sufficient to establish whether the speedy trial claim

10 was viable and, accordingly, whether defense counsel was unreasonable in failing to

11 move to dismiss on speedy-trial grounds. “Without such prima facie evidence, the

12 Court presumes that defense counsel’s performance fell within the range of reasonable

13 representation.” State v. Arrendondo, 2012-NMSC-013, ¶ 38, 278 P.3d 517.

14   {13}   We commend appellate defense counsel’s efforts to piece together what

15 occurred below based on the information she had before her relative to this issue,

16 [MIO 17-19] but even she acknowledges that there is a limited record and it is thus

17 unclear what caused much of the delay in this case. [MIO 17] Counsel suggests that

18 assigning this case to the general calendar would aid in development of the facts, but

19 we fail to see how that assignment would help, since the problem is not that we do not


                                               10
 1 have a complete record of the proceedings below; rather, the issue is that even with

 2 the complete record, we would not have enough information to resolve this issue since

 3 these issues were not raised below. See State v. Jensen, 1998-NMCA-034, ¶ 18, 124

 4 N.M. 726, 955 P.2d 195 (explaining that “[w]hen a case is assigned to a general

 5 calendar, the factual basis for the issues must be contained in the record of

 6 proceedings made below” and without a factual basis in the record, the claim of error

 7 must be rejected).

 8 D. Speedy trial

 9   {14}   For the same reasons set forth in addressing the ineffective assistance of counsel

10 claim premised on counsel’s failure to raise Defendant’s right to a speedy trial below,

11 we hold that no fundamental error occurred with respect to Defendant’s speedy trial

12 claim. [MIO 13-21] See State v. Rojo, 1999-NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d

13 829 (“[N]othing in the record suggests such a striking violation of the constitutional

14 right to a speedy trial that it would be appropriate to consider that issue for the first

15 time on appeal.” (internal quotation marks and citation omitted)).

16   {15}   In considering the foregoing—in particular, that many of these issues require

17 development of the record below in order to assess their merit—we conclude that

18 Defendant has not presented viable issues in his motion to amend, and we therefore

19 deny his motion. See State v. Munoz, 1990-NMCA-109, ¶ 19, 111 N.M. 118, 802 P.2d


                                                11
 1 23 (stating that if counsel had properly briefed the issue, we “would deny defendant’s

 2 motion to amend because we find the issue he seeks to raise to be so without merit as

 3 not to be viable”). However, Defendant may consider raising these claims in a

 4 collateral proceeding so that these issues may be developed and considered on their

 5 merits.

 6 SUFFICIENCY OF THE EVIDENCE

 7   {16}   Defendant continues to challenge the sufficiency of the evidence to support his

 8 conviction for second-degree murder. [MIO 21-24] Specifically, in response to our

 9 proposed disposition, Defendant asserts that the State failed to prove the second

10 element of the offense, i.e., that Defendant knew that his acts created a strong

11 probability of death or great bodily harm to Victim. [MIO 23] Defendant contends that

12 “his level of intoxication” rendered him incapable of forming the necessary mens rea

13 to commit second-degree murder. [MIO 23] Our Supreme Court, however, has held

14 that “intoxication is not a defense to second-degree murder.” State v. Campos, 1996-

15 NMSC-043, ¶ 31, 122 N.M. 148, 921 P.2d 1266. It reasoned that “voluntary

16 intoxication is only a defense to specific-intent crimes, whereas second-degree murder

17 is a general-intent crime.” Id. Accordingly, Defendant’s claim of insufficiency

18 premised on intoxication is without merit because intoxication cannot, as a matter of

19 law, negate the intent requirement in second-degree murder. See id. ¶¶ 30-46


                                              12
 1 (discussing the mens rea requirement for second-degree murder, its interplay with

 2 intoxication, and rejecting intoxication as a defense to second-degree murder).

 3   {17}   Further, for reasons set forth in this Court’s proposed disposition, we conclude

 4 that the evidence presented at trial was otherwise sufficient to establish second-degree

 5 murder beyond a reasonable doubt. See State v. Day, 2008-NMSC-007, ¶ 15, 143

 6 N.M. 359, 176 P.3d 1091 (explaining that a reviewing court does not weigh the

 7 evidence or substitute its judgment for that of the factfinder as long as there is

 8 sufficient evidence to support the verdict); State v. Duran, 2006-NMSC-035, ¶ 5, 140

 9 N.M. 94, 140 P.3d 515 (“Contrary evidence supporting acquittal does not provide a

10 basis for reversal because the jury is free to reject Defendant’s version of the facts.”

11 (internal quotation marks and citation omitted)); see also State v. Archie, 1997-

12 NMCA-058, ¶ 10, 123 N.M. 503, 943 P.2d 537 (“Intent involves a defendant’s state

13 of mind and is seldom, if ever, susceptible to direct proof. Therefore, intent may be

14 proved by circumstantial evidence.” (citation omitted)).

15   {18}   For the reasons stated above and in our calendar notice, we deny Defendant’s

16 motion to amend and affirm his conviction for second degree murder.




17   {19}   IT IS SO ORDERED.


                                               13
1                                         ______________________________
2                                         JAMES J. WECHSLER, Judge


3 WE CONCUR:


4 ________________________________
5 MICHAEL E. VIGIL, Chief Judge


6 ________________________________
7 TIMOTHY L. GARCIA, Judge




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