 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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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. 29,920

10 VIRGIL MARTINEZ,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 Kenneth Martinez, District Judge

14 Gary K. King, Attorney General
15 Andrea Sassa, 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 BUSTAMANTE, Judge.
 1        Defendant Virgil Martinez (Defendant) was tried for aggravated driving while

 2 under the influence of intoxicating liquor, contrary to NMSA 1978, Section 66-8-102

 3 (2007) (amended 2008 and 2010). After Defendant rested his case, the State called

 4 Christobol Garcia, a witness from Defendant’s witness list, for rebuttal. Believing

 5 there was a conflict because Garcia was represented by the Public Defender

 6 Department (the Department) in an unrelated case, Defendant’s attorney (PD) refused

 7 to cross-examine Garcia. The jury convicted and Defendant appeals, arguing that his

 8 right to effective assistance of counsel was violated because of the alleged conflict.

 9 We affirm.

10 I.     BACKGROUND

11        On July 20, 2007, at 10:08 in the evening, Defendant was pulled over by

12 Deputy Kyle Hartsock, a member of the Bernalillo County Sheriff’s DWI

13 Enforcement Unit. The deputy testified that Defendant had been slow to merge when

14 his lane ended and that despite the deputy’s close proximity and use of his lights and

15 siren, Defendant did not begin to pull over for fifteen or twenty seconds.

16 Additionally, he testified that Defendant admitted to drinking one beer at a friend’s

17 house and that Defendant smelled of alcohol and had bloodshot, watery eyes. The

18 deputy administered a portable breath test, which indicated that there was alcohol in

19 Defendant’s system. The deputy then administered several field sobriety tests. After


                                             2
 1 the field tests, the deputy concluded that he had probable cause to arrest Defendant for

 2 DWI. The deputy testified that he read the Implied Consent Act to Defendant and

 3 Defendant refused repeated requests to take a breath test.

 4        During the cross-examination of Defendant’s son, the State began to lay the

 5 foundation to call Garcia as a rebuttal witness. Garcia had been listed as a defense

 6 witness. Four days prior to trial, the State interviewed Garcia. During the interview,

 7 Garcia apparently indicated very specific times when Defendant left his house that

 8 conflicted with Defendant’s testimony regarding when he left the house. In the midst

 9 of this discussion about Garcia, PD indicated that Garcia was represented by Alex

10 Kostich, another public defender, in an unrelated case.

11        After Defendant rested his case, and after a lengthy discussion concerning the

12 ethical implications to PD of allowing Garcia to testify, the district court allowed the

13 State to call Garcia in rebuttal. The State conducted a brief direct examination,

14 concentrating on when Defendant arrived at and left from Garcia’s house. Garcia

15 testified that on the night in question Defendant arrived at his house between 7:30 and

16 8:00 after work and stayed for between an hour and an hour and a half. However,

17 Garcia acknowledged that he had previously stated that Defendant arrived at 7:30 and

18 left at 8:30. Garcia also testified that Defendant had told him that “he was going to

19 go get him a drink and go home and go relax” after he left.


                                              3
 1        PD refused to cross-examine Garcia and moved for a mistrial on the grounds

 2 that he was “prevented from cross-examining [Garcia] because of the conflict of

 3 interest” and that it was “a denial of [Garcia’s] Sixth Amendment right to confront.”

 4 There was considerable discussion of whether a conflict existed, which we explain as

 5 necessary below. Ultimately, the district court ordered that substitute counsel and

 6 conflict counsel be appointed for Garcia going forward and that since Garcia was no

 7 longer a client of the Department, no conflict existed. Nevertheless, PD asserted that

 8 “[Garcia] has been advised as to whether to testify and how to handle cross-

 9 examination by my colleague, Mr. Kostich, [and] that’s the representation that’s

10 relevant for this representation, not in the future, but what’s happened this afternoon.”

11 Because PD continued to believe that a conflict existed, he elected not to cross-

12 examine Garcia.

13 II.    DISCUSSION

14        Defendant raises two arguments: (1) that the district court erred in determining

15 that no conflict existed and denying his motion for a mistrial, and (2) that his right to

16 effective assistance of counsel was violated because his attorney’s performance was

17 deficient. We address each argument in turn.

18        “The right to effective assistance of counsel free from conflicts of interest is

19 guaranteed by the Sixth Amendment of the United States Constitution.” Rael v. Blair,


                                               4
 1 2007-NMSC-006, ¶ 10, 141 N.M. 232, 153 P.3d 657 (internal quotation marks

 2 omitted). This right encompasses two guarantees: (1) the right to counsel of

 3 reasonable competence, and (2) the right to counsel’s undivided loyalty. See State v.

 4 Martinez, 2001-NMCA-059, ¶¶ 22-24, 130 N.M. 744, 31 P.3d 1018.

 5 A.      Loyalty

 6        We begin our discussion with counsel’s duty of loyalty to his client. Defendant

 7 contends that the district court erred in determining that no conflict existed. The State

 8 responds that the district court properly denied Defendant’s motion for a mistrial

 9 based on the alleged conflict.

10        New Mexico has “adopted a case-by-case analysis for claims of potential

11 conflict of interest within the [Public Defender] Department at the trial level based,

12 in part, on [a] decision not to apply the imputed disqualification rules applicable to

13 private law firms to the [Public Defender] Department.” Morales v. Bridgforth, 2004-

14 NMSC-034, ¶ 3, 136 N.M. 511, 100 P.3d 668. “[T]he [Public Defender] Department

15 will not be automatically disqualified for potential conflicts of interest, but rather only

16 for actual conflicts of interest that are not waived by the individual client.” Id. When,

17 at trial, the Public Defender Department claims that a conflict exists, the district court

18        shall: (1) determine whether a conflict of interest or other
19        disqualification of the office of public defender in fact exists, (2)
20        determine whether the conflict or disqualification is local or statewide,
21        (3) if the conflict or disqualification is local, direct the Chief Public

                                                5
 1        Defender to provide a staff attorney or contract attorney from another
 2        county or district to represent the indigent, and (4) if the conflict or
 3        disqualification extends beyond the county or district, then the court may
 4        appoint counsel for the indigent defendant.

 5 Richards v. Clow, 103 N.M. 14, 16, 702 P.2d 4, 6 (1985). In this case, the district

 6 court determined that no conflict existed, and it therefore was not required to consider

 7 the remaining steps set forth in Richards. Accordingly, the question we must resolve

 8 is whether the district court’s conclusion that there was no conflict was in error.

 9        “[T]he analysis of an ineffective assistance of counsel claim based on a conflict

10 of interest requires a different analysis than the more typical ineffective assistance of

11 counsel claim based on lack of competence and resulting prejudice.” Rael, 2007-

12 NMSC-006, ¶ 10. Prejudice is presumed when counsel is burdened by a conflict of

13 interest, but the presumption is not automatic. See id. ¶ 11. Mere overlapping

14 representation is not enough to trigger the presumption. See id. ¶ 16. Instead, a

15 defendant must show that an actual conflict adversely affected his attorney’s

16 performance. Id. ¶ 11. “We review de novo whether there is a conflict of interest and

17 whether [a d]efendant is entitled to a presumption of prejudice.”               State v.

18 Vincent, 2005-NMCA-064, ¶ 4, 137 N.M. 462, 112 P.3d 1119.

19        The record in this case, though extensive, reveals no indication that PD had

20 received confidential information from Garcia’s attorney. Although the attorneys

21 argued that Garcia might be asked to admit to violating his probation, they did not

                                               6
 1 know whether or when he might have been on probation. PD did not assert that he

 2 had received specific information from Kostich about Garcia, but only that he “may

 3 or may not have discussed” Garcia with Kostich. PD made vague statements that he

 4 would use prior convictions and even pending cases to impeach Garcia, but provided

 5 no factual basis for how these would be admissible. The district court emphasized

 6 that, except for the limited exceptions allowed in the rules of evidence, PD’s questions

 7 along those lines would not be allowed.

 8        PD gave only one example that was not phrased as speculation: “I can give a

 9 concrete example of a conflict. Mr. Garcia is a drug addict. He may have used drugs

10 in the time since this incident that would affect his memory. We have a right to cross-

11 examine him on whether he’s been using heroin.” Even this, however, fails to

12 disclose whether PD learned of the drug addiction from Kostich. Additionally, this

13 statement only alleges that Garcia may have used drugs, not that PD had learned of

14 the drug use (either general use or specific instances) from Kostich. Furthermore, PD

15 had already disclosed to the court, without any apparent concern for confidentiality,

16 that he chose not to call Garcia because “he has a drug addiction [and] he[] looks

17 terrible” and because Garcia would only have corroborated Defendant’s story.

18        PD’s arguments at trial also undermine Defendant’s assertion on appeal that

19 there was an actual conflict. At trial, PD repeatedly made it clear that the conflict was


                                               7
 1 “not necessarily the fact-specific nature” at issue, but simply that public defenders

 2 were “presumed to have knowledge of one another’s representation of one another’s

 3 clients.” Our cases, however, have been clear that mere overlapping representation

 4 is not enough—actual conflict must be shown. See Rael, 2007-NMSC-006, ¶ 12;

 5 State v. Robinson, 99 N.M. 674, 678, 662 P.2d 1341, 1345 (1983) (noting that the

 6 possibility of conflict inheres in almost every instance of multiple representation, but

 7 “is insufficient to impugn a criminal conviction.” (internal quotation marks omitted));

 8 Martinez, 2001-NMCA-059, ¶ 37 (reasoning that the mere possibility of conflict is not

 9 enough, but that a new trial is warranted when defense counsel’s “struggle to serve

10 two masters cannot seriously be doubted” (internal quotation marks omitted)).

11        Having determined that no actual conflict existed due to past communications

12 between PD and Kostich, the district court ordered Garcia conflicted out of the

13 Department in the future. This ensured that there was no possibility of conflict. On

14 the record before us, there is no basis to disagree with the district court’s conclusion.

15 As there was no actual conflict, PD did not violate his Sixth Amendment duty of

16 loyalty to Defendant.

17 B.     Competence

18        Defendant’s second argument is that PD’s deficient performance deprived him

19 of his right to effective assistance of counsel. The State counters that the record is


                                               8
 1 insufficient to decide this issue and that, alternatively, there was no ineffective

 2 assistance because Defendant was not prejudiced.

 3        “To state a case of ineffective assistance of counsel, [the d]efendant must show

 4 that (1) counsel’s performance was deficient, and (2) the deficient performance

 5 prejudiced the defense.” Garcia v. State, 2010-NMSC-023, ¶ 30, 148 N.M. 414, 237

 6 P.3d 716 (internal quotation marks omitted). Where the jury has returned a verdict,

 7 prejudice depends on “whether there is a reasonable probability that, absent the errors,

 8 the fact[-]finder would have had a reasonable doubt respecting guilt.” Lytle v. Jordan,

 9 2001-NMSC-016, ¶ 27, 130 N.M. 198, 22 P.3d 666 (internal quotation marks

10 omitted).

11        We assume without deciding that PD’s failure to check for conflicts or to be

12 familiar with the law of conflicts as it applies to the Department was deficient

13 performance. However, since we have held that no actual conflict arose, no prejudice

14 resulted from this failure. This does not, however, end our analysis. We must also

15 consider whether it was ineffective assistance for PD to refuse to cross-examine

16 Garcia once the district court concluded that no conflict existed. We therefore also

17 assume, again without deciding, that the failure to cross-examine was deficient

18 performance. We conclude that this failure did not prejudice Defendant because there




                                              9
 1 was not a reasonable probability that, but for this failure, the jury would have had

 2 reasonable doubt concerning Defendant’s guilt.

 3        Garcia’s testimony was not necessary to obtain a conviction in this case. The

 4 State elicited essentially three answers from Garcia: when Defendant arrived, when

 5 Defendant left, and where Defendant said he was going. Because Garcia’s answers

 6 were vague, the State chose to impeach him with his answers from the earlier

 7 interview, which apparently were specific. If believed, the specific answers used to

 8 impeach Garcia would support an inference that Defendant had been drinking for an

 9 hour before he was pulled over. We note that Defendant’s prior statements were not

10 admissible for their truth, but only to show inconsistency. See State v. Macias, 2009-

11 NMSC-028, ¶ 20, 146 N.M. 378, 210 P.3d 804. It was up to the jury to evaluate what

12 weight to give Garcia’s conflicting testimony. However, even if the jury believed that

13 Defendant had not had the extra hour of time to drink, the State had already presented

14 abundant evidence that Defendant’s driving was impaired to the slightest degree as a

15 result of alcohol. Accordingly, we do not believe that there is a reasonable probability

16 that, had PD cross-examined Garcia, the jury would not have convicted. We therefore

17 conclude that the failure to cross-examine Garcia was not prejudicial.

18 III.   CONCLUSION

19        For the foregoing reasons, we affirm the district court.


                                              10
1     IT IS SO ORDERED.


2
3                            MICHAEL D. BUSTAMANTE, Judge

4 WE CONCUR:


5
6 JAMES J. WECHSLER, Judge


7
8 MICHAEL E. VIGIL, Judge




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