 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. 29,966

10 BOBBY McMULLIN,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
13 Denise Barela Shepherd, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Robert E. Tangora, L.L.C.
18 Robert E. Tangora
19 Santa Fe, NM

20 for Appellant


21                                 MEMORANDUM OPINION

22 BUSTAMANTE, Judge.

23          Defendant appeals his felony convictions for eight counts of promoting
 1 prostitution and one count of accepting the earnings of a prostitute. [RP 136] Our

 2 second notice proposed to affirm. Pursuant to a granted motion for extension of time,

 3 Defendant filed a timely motion to amend the docketing statement and memorandum

 4 in opposition. We deny Defendant’s motion to amend the docketing statement. We

 5 further remain unpersuaded by Defendant’s arguments, and therefore affirm.

 6 Motion to amend.

 7        Defendant seeks to amend the docketing statement to argue that his counsel was

 8 ineffective by not objecting to the prosecutor’s continued reference to his contract

 9 performers as “prostitutes.” [MIO 1, 4, 7] Defendant asserts that counsel’s failure

10 to object reflected a “lack of skill, judgment, or diligence” [MIO 9] and was

11 prejudicial because it allowed the prosecutor to draw legal conclusions for the jury.

12 [MIO 9]

13        Counsel is presumed competent. State v. Jacobs, 2000-NMSC-026, ¶ 48, 129

14 N.M. 448, 10 P.3d 127. To establish a prima facie case of ineffective assistance of

15 counsel, a defendant must show (1) that counsel’s performance fell below that of a

16 reasonably competent attorney, and (2) that defendant was prejudiced by the deficient

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

18 In the present case, we view counsel’s lack of objection as a matter of trial tactics –

19 counsel, for example, may have reasonably determined that any objection would call


                                              2
 1 attention to the prosecutor’s characterization of the performers as ‘prostitutes’. [MIO

 2 9] See, e.g., State v. Peters, 1997-NMCA-084, ¶ 40, 123 N.M. 667, 944 P.2d 896

 3 (holding that whether to object to evidence is a matter of trial tactics and failure to

 4 object does not establish ineffective assistance); Lytle v. Jordan, 2001-NMSC-016,

 5 ¶ 43, 130 N.M. 198, 22 P.3d 666 (stating “[o]n appeal, we will not second guess the

 6 trial strategy and tactics of the defense counsel” (internal quotation marks and citation

 7 omitted)). We accordingly deny Defendant’s motion to amend. See State v. Sommer,

 8 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (recognizing that issues sought

 9 to be presented must be viable).

10 Issues (I) and (II):

11        Defendant continues to argue that the State engaged in prosecutorial misconduct

12 by failing to provide timely discovery, and that this failure resulted in fundamental

13 error. [DS 3-4; MIO 4] We review the district court’s discovery ruling for abuse of

14 discretion. See State v. McDaniel, 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701.

15        The facts provide that three days [DS 1-2] prior to the start of the initially

16 scheduled April 15, 2009, jury trial, [RP 65, 66] defense counsel requested and

17 received a court order compelling the prosecutor to produce a disk of Defendant’s

18 computer data that was seized by authorities pursuant to a search warrant on January

19 25, 2008. [DS 2-3] The disk contained approximately 60,000 pages of computer data,


                                               3
 1 [DS 3; MIO 7] including names and contact information for approximately 3,000 of

 2 Defendant’s clients. [DS 2; MIO 3] Defendant asserts that “[d]ue to the late nature

 3 of discovery being made available to the defense, the defense was unable to identify,

 4 locate[,] interview witnesses to verify information, or to properly subpoena any

 5 potential witnesses to testify in court on defendant’s behalf.” [DS 2]

 6        Defendant’s argument is premised on an asserted violation of Rule 5-501

 7 NMRA (setting forth discovery that must be disclosed to the defendant within ten

 8 days of arraignment). [DS 4; MIO 4] Defendant contends that the data base would

 9 have been material to his defense because his counsel could have identified potential

10 witnesses who would have testified on his behalf, namely that they conducted

11 legitimate business with Defendant. [MIO 4, 6] The facts provide, however, that the

12 State acknowledged that Defendant earned approximately $100,000 from his

13 legitimate security alarm business, and that the charges against Defendant were

14 premised not on his security alarm business, but on the prostitution business that

15 accounted for in excess of $300,000 in earnings. [DS 2; MIO 3] Given this, even

16 assuming that Defendant could have identified and called witnesses to testify that they

17 conducted legitimate business with Defendant, this would not have detracted from

18 evidence supporting the charges. [DS 2-3; MIO 3, 5] See generally State v.

19 McDaniel, 2004-NMCA-022, ¶ 11, 135 N.M. 084, 135 84 P.3d 701 (stating that, in


                                              4
 1 the context of the late disclosure of information, for evidence to be material there must

 2 be a reasonable probability that the outcome of the proceedings would have been

 3 different had the information been disclosed earlier).

 4        Moreover, although the jury trial was initially scheduled for April 15, 2009 [RP

 5 65], it was reset to October 13, 2009. [RP 132] Given this, defense counsel had

 6 ample time to review the data base, and identify and interview any potential witnesses.

 7 See In re Ernesto M., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An

 8 assertion of prejudice is not a showing of prejudice.”). Nonetheless, because

 9 Defendant did not request a continuance, he waived any claim that he was prejudiced

10 by any late disclosure of evidence. See generally State v. Barraza, 110 N.M. 45, 48-

11 49, 791 P.2d 799, 802-03 (Ct. App. 1990) (holding that a defendant’s failure to seek

12 a continuance undermines the defendant’s claim of unfair surprise and may waive a

13 complaint that exculpatory evidence was not timely disclosed). Even if Defendant’s

14 failure to request a continuance did not waive his claim of untimely disclosure, there

15 is no basis for concluding that any purportedly late disclosure of evidence amounted

16 to fundamental error. [DS 2] See State v. Barber, 2004-NMSC-019, ¶ 17, 135 N.M.

17 621, 92 P.3d 633 (providing that fundamental error only occurs in “cases with

18 defendants who are indisputably innocent, and cases in which a mistake in the process

19 makes a conviction fundamentally unfair notwithstanding the apparent guilt of the


                                               5
1 accused.”).

2 Conclusion.

3       Based on the foregoing discussion, we affirm.

4       IT IS SO ORDERED.



5
6                                MICHAEL D. BUSTAMANTE, Judge


7 WE CONCUR:


8
9 JONATHAN B. SUTIN, Judge


10
11 TIMOTHY L. GARCIA, Judge




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