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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. 34,301

 5 DOMINIC MARTIN MONTOYA,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Douglas R. Driggers, District Judge

 9 Hector H. Balderas, Attorney General
10 Maris Veidemanis, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13   Bennett J. Baur, Chief Public Defender
14   Santa Fe, NM
15   Steven J. Forsberg, Assistant Appellate Defender
16   Albuquerque, NM

17 for Appellant

18                                 MEMORANDUM OPINION

19 VANZI, Chief Judge.
 1   {1}   Defendant Dominic Montoya admits that he killed Adam Avalos (Victim) in

 2 prison but seeks reversal of his second degree murder conviction, contrary to NMSA

 3 1978, Section 30-2-1(B) (1994), on the grounds that (1) the prosecutor improperly

 4 asked Defendant on cross-examination whether he had a prior felony conviction for

 5 murder, and the jury considered this “extraneous evidence” during deliberations; (2)

 6 the admission of another inmate’s phone call identifying Defendant as the killer

 7 lacked an adequate foundation, was inadmissible hearsay, and violated Defendant’s

 8 right to confrontation; and (3) Defendant’s trial counsel was ineffective. We affirm.

 9 BACKGROUND

10   {2}   In April 2006 a grand jury indicted Defendant for first degree murder, contrary

11 to Section 30-2-1(A)(1); possession of a deadly weapon or explosive by a prisoner,

12 contrary to NMSA 1978, Section 30-22-16 (1986); and tampering with evidence,

13 contrary to NMSA 1978, Section 30-22-5 (2003). For reasons not relevant to this

14 appeal, Defendant’s trial began in June 2014. The following undisputed facts are

15 derived from the trial transcript.

16   {3}   Defendant was incarcerated at the Doña Ana County Detention Center

17 (DACDC) when the homicide occurred. On April 2, 2006, at about 8:00 p.m., a

18 DACDC officer observed Defendant sitting on a chair covered in blood. The officer

19 called a “code Mary,” or medical emergency, during which time the prison was locked

20 down. The officer had last seen Defendant without bloody clothes thirty to forty

                                              2
 1 minutes earlier. Victim’s body was discovered in the shower with a gash across his

 2 neck and scratches or blood on his chest. A razor was found five or six feet from

 3 Victim’s body. The autopsy revealed that the cause of death was multiple blunt force

 4 and sharp force injuries.

 5   {4}   At trial the State sought to call Claudio Castaneda as a witness. Castaneda had

 6 been an inmate at DACDC when the homicide occurred. He refused to testify, and the

 7 State moved to introduce a recorded phone call Castaneda made at 7:59 p.m. on April

 8 2. Defense counsel objected on foundation, hearsay, and confrontation grounds. The

 9 district court found that Castaneda was unavailable, overruled Defendant’s objection,

10 and allowed the recording to be admitted into evidence, finding that it had a

11 “sufficient indicia of reliability.” Before the recording was played to the jury,

12 DACDC’s phone call custodian testified that his job was to ensure that inmate phone

13 calls get recorded and explained that “[e]ach inmate has a different ID when they get

14 to the jail [that is] tied to their PIN to use the phone,” which is associated with the

15 inmate’s password. He also testified that computerized call records show the inmate

16 ID used to make the call, the duration of the call, and the number called. In addition,

17 he acknowledged that it is common practice for inmates to share their PIN numbers.

18 The following is the complete transcript of the phone call:

19         [Caller:]   Hey, babe, guess what?
20         [Receiver:] What?
21         [Caller:]   Dominic just killed somebody.

                                              3
 1   [Receiver:]   Are you F’g serious?
 2   [Caller:]     Yeah, Babe. He cut him up and everything.
 3   [Receiver:]   Really?
 4   [Caller:]     I swear to God.
 5   [Receiver:]   Son of a bitch. Like, he really killed him or he just hurt him
 6                 bad?
 7   [Caller:]     No. He killed him. Slit his throat open and showed me
 8                 everything.
 9   [Receiver:]   He showed you?
10   [Caller:]     Yeah, babe. Yeah, baby. And I’m so sorry. You okay?
11   [Receiver:]   Yeah, I’m all right. Fuck, man. That guy is fucking crazy,
12                 Claudio.
13   [Caller:]     I know, Babe. I think it’s, like, beating the shit out of
14                 somebody, but doing it like that, goddamn.
15   [Receiver:]   And they haven’t locked you guys down yet?
16   [Caller:]     No. They’re barely finding out.
17   [Receiver:]   Really. Did you know the guy?
18   [Caller:]     Yeah, yeah, yeah. Check what they want.
19   [Receiver:]   I don’t want you to be there no more, babe. I don’t want
20                 you to be in there.
21   [Caller:]     I don’t want to be here. What did he say?

22         ....

23   [Caller:]     No, the C.O.’s are coming now.
24   [Receiver:]   Are they?
25   [Caller:]     Yeah, they’re going to lock us down, babe.
26   [Receiver:]   Are they?
27   [Caller:]     Yeah, I probably won’t be able to talk to you for a couple
28                 of days, mija.
29   [Receiver:]   Okay. Baby I love you, and I’ll be thinking of you, okay?
30   [Caller:]     Okay. I love you, mija.
31   [Receiver:]   Call me as soon as you can. Claudio, keep it together.
32   [Caller:]     They told me to hang up, babe. I got to go. Okay.
33   [Receiver:]   Okay.
34   [Caller:]     I love you, mija.
35   [Receiver:]   I love you too.
36   [Caller:]     Bye.


                                          4
 1   {5}   Defendant elected to testify in his own defense. On direct examination,

 2 Defendant discussed various tragic events that happened in his life. Defense counsel

 3 asked Defendant if he had two different felony convictions and Defendant answered

 4 “yes” and stated he was serving around seventy years. Also on direct, Defendant

 5 admitted he had the razor and fought with Victim in the shower but said he blacked

 6 out during much of the incident. Defendant further testified that he had no plans to

 7 hurt Victim, but was upset because he recently broke up with his girlfriend and “just

 8 exploded” after Victim said, “Fuck that bitch. She ain’t worth it.”

 9   {6}   On cross-examination, the following exchange occurred between Defendant and

10 the prosecutor:

11         [Prosecutor:]       [Y]our attorney . . . indicated that you were in
12                             prison; is that right?
13         [Defendant:]        Yes.
14         [Prosecutor:]       And that you had been in prison for a conviction of
15                             felony offenses; is that correct?
16         [Defendant:]        Yes.
17         [Prosecutor:]       One of those felony offenses was a murder; is that
18                             correct?

19 Defense counsel objected before Defendant answered on the ground that asking

20 whether Defendant had a prior conviction for murder was “highly prejudicial.” The

21 district court sustained the objection and “admonish[ed] the State not to bring up the

22 [name of the] prior convictions, just the fact that he has two prior felony convictions.”

23 The State did not bring up the murder conviction by name again. Defense counsel did


                                               5
 1 not seek a mistrial or curative instruction or otherwise object to the court’s handling

 2 of the matter. Later, during cross-examination, Defendant asserted, “I don’t think this

 3 case is about whether I killed him or not. I’m pretty sure the jury and everybody

 4 knows. I know I killed [Victim].”

 5   {7}   Two clinical psychologists that were qualified as expert witnesses testified at

 6 trial. Dr. Eric Westfried, who evaluated Defendant in 2009, testified for the defense

 7 and discussed Defendant’s various psychiatric disorders. Dr. Westfried opined that

 8 Defendant experienced a “full blown panic attack” at the time of the homicide and that

 9 in his “opinion, at a reasonably scientific level of certainty, . . . [Defendant’s] anxiety

10 was at a panic level and that he was not in control of his feelings, his thinking nor his

11 behavior.”

12   {8}   Dr. Ned Siegel, who evaluated Defendant in April 2014, testified for the State

13 during its rebuttal. Dr. Siegel opined that Defendant’s awareness of his surroundings

14 indicates some level of control and stated, “It is my opinion that he was not

15 experiencing a psychosis at [the time of the homicide,] nor was he experiencing a

16 tangible element that would rob him of the ability to form specific intent.”

17   {9}   The jury was given a step-down instruction for which it could find Defendant

18 guilty of first or second degree murder. The jury also received insanity instructions

19 that, in order to find Defendant guilty of either first or second degree murder, it was

20 required to find, in relevant part, that “[D]efendant was sane at the time the offense

                                                6
 1 was committed . . . [and] was not suffering from a mental disease or disorder at the

 2 time the offense was committed to the extent of being incapable of forming an intent

 3 to take away the life of another.”

 4   {10}   During jury deliberations, the jury sent the following note to the district court:

 5 “[The] prosecuting attorney stated that [Defendant] had a previous felony murder.

 6 Were we to disregard this[?]” After consulting with counsel, the judge simply sent a

 7 note back to the jury that said, “yes.” Neither the State nor defense counsel objected

 8 or requested a mistrial or additional curative instructions. In fact, when asked whether

 9 he had a problem with the judge simply saying “yes,” defense counsel answered, “No

10 sir.”

11   {11}   The jury found Defendant guilty of second degree murder and possession of a

12 deadly weapon by a prisoner. Defendant appeals.

13 DISCUSSION

14 The Prosecutor’s Question

15 1.       Preservation

16   {12}   At the outset, we observe that Defendant’s arguments regarding the

17 prosecutor’s question concerning the prior murder conviction were not preserved.

18 Rule 12-321(A) NMRA provides, “To preserve an issue for review, it must appear that

19 a ruling or decision by the [district] court was fairly invoked.” In particular, “a

20 defendant must make a timely objection that specifically apprises the [district] court

                                                7
 1 of the nature of the claimed error and invokes an intelligent ruling thereon.” State v.

 2 Montoya, 2015-NMSC-010, ¶ 45, 345 P.3d 1056 (internal quotation marks and

 3 citation omitted).

 4   {13}   Here, defense counsel timely objected to the prosecutor asking Defendant if he

 5 had a prior felony conviction for murder on the grounds that the question was “highly

 6 prejudicial.” The district court sustained the objection and defense counsel did not

 7 seek a mistrial or a curative instruction at any point as a result of the prosecutor’s

 8 question. Any potential error could only arise from Defendant’s failure to seek a

 9 mistrial or a curative instruction after the district court sustained the objection to the

10 State’s question about the prior felony conviction. See State v. Johnson, 2010-NMSC-

11 016, ¶¶ 52-55, 148 N.M. 50, 229 P.3d 523 (addressing a defendant’s unpreserved

12 failure to move for a mistrial and the subsequent review for error).

13 2.       Standard of Review

14   {14}   Defendant urges us to employ the plain error rule, however, as we explain, plain

15 error is not the proper standard of review in this context. The doctrine of plain error

16 applies specifically to evidentiary matters and permits a court to “take notice of a plain

17 error affecting a substantial right, even if the claim of error was not properly

18 preserved.” Rule 11-103(E) NMRA. Under Rule 11-103(A), plain error may exist for

19 evidentiary matters that admit or exclude evidence. See State v. Lucero, 1993-NMSC-

20 064, ¶ 13, 116 N.M. 450, 863 P.2d 1071 (clarifying that the plain error rule applies not

                                                8
 1 only to evidentiary rulings but also to situations where evidence was admitted without

 2 being subject to a district court ruling).

 3   {15}   It would be improper to apply plain error review here. No evidence of

 4 Defendant’s prior murder conviction was admitted via a ruling or otherwise. As

 5 Defendant concedes, questions posed by lawyers to witnesses are not evidence. Cf.

 6 State v. Sanchez, 1974-NMCA-107, ¶ 4, 86 N.M. 713, 526 P.2d 1306 (observing that

 7 improper prosecutorial comments are not reviewed for plain error). Additionally, the

 8 district court sustained defense counsel’s objection to the question, and Defendant

 9 does not contend that the exclusion of testimony was in error. Accordingly, we

10 perceive no basis to use plain error review.

11   {16}   Rather, we review for fundamental error because no evidentiary matter is

12 contested, and Defendant did not preserve his arguments below. The appellate courts

13 exercise discretion to adopt the fundamental error exception “very guardedly” and will

14 use it “only under extraordinary circumstances to prevent the miscarriage of justice[.]”

15 State v. Silva, 2008-NMSC-051, ¶ 13, 144 N.M. 815, 192 P.3d 1192 (internal

16 quotation marks and citations omitted), modified on other grounds by State v. Guerra,

17 2012-NMSC-027, ¶ 16, 284 P.3d 1076. 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

20 accused.” State v. Barber, 2004-NMSC-019, ¶ 17, 135 N.M. 621, 92 P.3d 633.

                                                9
 1 3.       Impeachment

 2   {17}   Rule 11-609(A)(1)(b) NMRA provides that a defendant’s prior felony

 3 convictions may be admitted into evidence to attack the defendant’s character for

 4 truthfulness if the defendant is a witness and “if the probative value of the evidence

 5 outweighs its prejudicial effect to that defendant[.]” Although “convictions for the

 6 same crime should be admitted sparingly . . . we have held that evidence of a prior

 7 offense is not prohibited for impeachment purposes solely on the basis of its similarity

 8 with the presently charged crime.” State v. Trejo, 1991-NMCA-143, ¶ 12, 113 N.M.

 9 342, 825 P.2d 1252; see id. ¶¶ 1-3, 18 (holding that the defendant’s prior felony

10 convictions for attempted sexual penetration and false imprisonment were properly

11 admitted to impeach the defendant at trial for attempted sexual penetration and false

12 imprisonment); see also State v. Coca, 1969-NMCA-013, ¶ 4, 80 N.M. 95, 451 P.2d

13 999 (“The State may establish by the accused the fact of a prior conviction and the

14 name of the particular felony.”). However, because of the tendency for such

15 questioning to prejudice the defendant as illegitimate propensity evidence, “it is the

16 [district] court’s responsibility to determine when cross-examination should be limited

17 because the legitimate probative value on the credibility of the accused is outweighed

18 by its illegitimate tendency, effect or purpose to prejudice him.” Coca, 1969-NMCA-

19 013, ¶ 5. Nonetheless, prejudicial impact by itself does not render evidence of a prior



                                              10
 1 felony conviction inadmissible. State v. Hall, 1987-NMCA-145, ¶¶ 26-28, 30, 107

 2 N.M. 17, 751 P.2d 701.

 3   {18}    Defendant argues that, “[t]he prosecutor’s asking of whether [Defendant’s]

 4 prior conviction was for murder was improper[,]” and cites a number of out-of-state

 5 cases. We hold, however, that any error here was not fundamental and that we can

 6 resolve this issue under New Mexico law.

 7   {19}    While we generally agree with the State that “there is no blanket prohibition

 8 against impeaching a testifying defendant with evidence of a prior [felony] criminal

 9 conviction[,]” we note that our case law strongly suggests that it was error for the

10 prosecutor to ask the question because information that a criminal defendant has a

11 prior conviction for murder “invites the impermissible inference that, because he had

12 killed in the past, it is more likely that he committed [the] murder” he is currently on

13 trial for. State v. Roybal, 2002-NMSC-027, ¶ 26, 132 N.M. 657, 54 P.3d 61; see id.

14 ¶¶ 13, 28-29 (analyzing an ineffective assistance of counsel claim and holding that,

15 where evidence of the defendant’s involvement in a prior killing was actually admitted

16 at trial through a taped confession of another party, the defendant did not demonstrate

17 actual prejudice because there was significant evidence of his guilt in the present

18 trial).

19   {20}    However, any error that occurred here was not fundamental error. First, there

20 was no evidence admitted at trial that Defendant had a prior murder conviction. The

                                               11
 1 prosecutor asked Defendant if one of his prior felonies was for murder, but Defendant

 2 never answered, and no testimony to that effect was admitted. Second, Defendant does

 3 not argue, and there is no indication in the trial transcript, that the State persisted in

 4 raising the prior murder conviction after the district court admonished the State. See

 5 State v. Sosa, 2009-NMSC-056, ¶ 31, 147 N.M. 351, 223 P.3d 348 (“[O]ur appellate

 6 courts have consistently upheld convictions where a prosecutor’s impermissible

 7 comments [during closing arguments] are brief or isolated.”). Third, we note that the

 8 district court’s curative instruction to the jury—that it was to disregard any reference

 9 to Defendant’s prior murder conviction—is presumed to have cured any prejudicial

10 effect. But see State v. Armijo, 2014-NMCA-013, ¶¶ 4-5, 9-10, 316 P.3d 902

11 (explaining that generally a prompt curative instruction cures any potential prejudice,

12 but where “inadmissible testimony [was] intentionally elicited by the prosecution,”

13 the State repeatedly sought improper opinion testimony from a lay witness after the

14 court had sustained the defendant’s objection three times, and the witness actually

15 answered the improper question, that the court’s curative instruction did not cure the

16 prejudice (internal quotation marks and citation omitted)). Finally, we reject

17 Defendant’s argument that the jury’s note asking whether it was to disregard the

18 prosecutor’s question showed that it “considered” or “deliberat[ed]” on Defendant’s

19 prior murder conviction. If anything, the note indicated that the jury was questioning



                                               12
 1 whether it should consider or deliberate on the issue, not that it actually had, and the

 2 jury was told to disregard the prosecutor’s statement.

 3   {21}   Furthermore, Defendant admits he killed Victim and on appeal argues that “his

 4 defense was not that he didn’t commit the act[,]” but that he was insane. Although we

 5 observe that our review entails considering, not whether he actually killed Victim, but

 6 whether the prosecutor’s comment prejudiced his insanity defense, we fail to see how

 7 any error here amounted to fundamental error given our discussion above. Because

 8 Defendant admitted to killing Victim and concedes that “the case was close” on the

 9 insanity issue, we cannot say that this case presents an “extraordinary circumstance”

10 whereby Defendant’s conviction amounted to a “miscarriage of justice,” Silva, 2008-

11 NMSC-051, ¶ 13, or a “mistake in the process [made Defendant’s] conviction

12 fundamentally unfair,” Barber, 2004-NMSC-019, ¶ 17, particularly given that the

13 prosecutor’s question was not outright prohibited by Rule 11-609.

14   {22}   For the same reasons, we also hold that the district court did not commit

15 fundamental error by failing to sua sponte declare a mistrial or offer additional

16 curative instructions on its own motion. See State v. Newman, 1989-NMCA-086, ¶ 19,

17 109 N.M. 263, 784 P.2d 1006 (“A reviewing court will generally refuse to reverse a

18 trial judge for failing to grant a mistrial sua sponte.”); see also State v. Gallegos,

19 2009-NMSC-017, ¶¶ 26, 29, 146 N.M. 88, 206 P.3d 993 (declining to find

20 fundamental error where a district court did not declare a mistrial on its own motion).

                                              13
 1   {23}   Additionally, we reject any allegations of prosecutorial misconduct because, as

 2 noted, Rule 11-609 permits inquiry into a testifying defendant’s prior felony

 3 convictions in order to attack the defendant’s credibility, and it is the district court’s

 4 responsibility to weigh whether any prejudicial impact warrants exclusion. Thus, the

 5 fact of the prior murder conviction was not on its face “inadmissible,” as Defendant

 6 maintains, and the prosecutor’s question did not amount to misconduct.

 7   {24}   Lastly, we acknowledge Defendant’s argument that his rights to due process

 8 and a fair trial under the Federal and New Mexico Constitutions were violated by the

 9 prosecutor’s question. But given that Defendant does not develop this argument, we

10 decline to reach it because “[f]or this Court to rule on an inadequately briefed

11 constitutional issue would essentially require us to do the work on behalf of

12 Defendant[.]” State v. Duttle, 2017-NMCA-001, ¶ 34, 387 P.3d 885; see also State v.

13 Guerra, 2012-NMSC-014, ¶ 21, 278 P.3d 1031 (noting that appellate courts are under

14 no obligation to review unclear or undeveloped arguments).

15 4.       “Extraneous Evidence”

16   {25}   The next issue presented is whether a prosecutor’s question to a witness during

17 the ordinary trial process is “extraneous evidence.” Such evidence refers to

18 “extraneous information [that] reached the jury[.]” State v. Doe, 1984-NMCA-045,

19 ¶ 15, 101 N.M. 363, 683 P.2d 45. However, “extraneous” information does not refer

20 to arguably improper questions posed by counsel during trial. Rather, it refers to

                                               14
 1 material that reaches the jury outside the normal trial process. See, e.g., id. ¶¶ 7, 14-15

 2 (discussing whether information obtained by a juror during a trial recess prejudiced

 3 the defendant); see also Kilgore v. Fuji Heavy Indus. Ltd., 2009-NMCA-078, ¶¶ 10,

 4 22-24, 146 N.M. 698, 213 P.3d 1127 (analyzing whether “extraneous evidence”

 5 reached a jury when a juror spoke to a mechanic shop owner about an automobile

 6 negligence case on which she was serving).

 7   {26}   Defendant argues that evidence of the prior murder conviction was “extraneous

 8 evidence.” Defendant acknowledges the general rule that extraneous evidence “‘does

 9 not refer to objectionable statements of counsel made during trial” but argues that this

10 case presents a unique situation because the jury “sent out a note indicating that it was

11 deliberating on the extraneous evidence[.]” We are not persuaded.

12   {27}   As already noted, we do not consider the jury’s question to the court an

13 indication that it was “deliberating” on Defendant’s prior murder conviction. But in

14 any event, the prosecutor’s question was not “extraneous evidence” because it was

15 asked while Defendant was on the stand. This is not a situation where a juror brought

16 in outside information, but rather, involved information that reached the jury during

17 the normal trial process. Consequently, the prosecutor’s question was not “extraneous

18 evidence.”

19 The Phone Call

20 1.       Foundation

                                               15
 1   {28}   The next issue on appeal is whether admission of the 7:59 p.m. phone call

 2 recording lacked an adequate foundation. “[S]ufficiency of the foundation or

 3 authenticating evidence is a matter largely within the discretion of the [district]

 4 court[.]” State ex rel. State Highway Dep’t v. Kistler-Collister Co., 1975-NMSC-039,

 5 ¶ 16, 88 N.M. 221, 539 P.2d 611. “The [district] court abuses its discretion when it

 6 admits evidence for which the necessary foundation has not been laid.” State v.

 7 Onsurez, 2002-NMCA-082, ¶ 8, 132 N.M. 485, 51 P.3d 528. A recording may be

 8 authenticated by witness testimony that identifies the recording as being what its

 9 proponent claims it to be. See Rule 11-901(A) NMRA (“To satisfy the requirement

10 of authenticating or identifying an item of evidence, the proponent must produce

11 evidence sufficient to support a finding that the item is what the proponent claims it

12 is.”).

13   {29}   Defendant argues that the “admission of the recorded phone call allegedly made

14 by Claudio Castaneda was made without an adequate foundation[.]” Defendant alleges

15 that Castaneda was not sufficiently identified as having made the phone call. We

16 disagree.

17   {30}   Before the jury heard the recording, DACDC’s phone call custodian testified

18 that each inmate has an identification number that is connected to an individualized

19 PIN that inmates use to make phone calls. In addition, he testified that computerized

20 call records establish the inmate PIN used to make the call, the duration of the call,

                                              16
 1 and the number called. The phone call custodian further testified that the call log

 2 record shows that the PIN used to make the 7:59 p.m. phone call belonged to

 3 Castaneda. Although he acknowledged that it is common practice for inmates to share

 4 their PIN numbers, there is no evidence or allegation that this occurred here, and

 5 notably, the caller was identified as “Claudio” twice during the phone call. Likewise,

 6 there is no evidence or allegation that the computerized call record system was

 7 inaccurate or mishandled. Accordingly, the district court did not abuse its discretion

 8 because the witness testimony sufficiently identified Castaneda as the caller.



 9 2.       Hearsay

10   {31}   Next, we turn to whether admission of the phone call constituted inadmissible

11 hearsay. Hearsay is an out-of-court statement by a declarant offered into evidence to

12 prove the truth of the matter asserted. Rule 11-801(C) NMRA. “An out-of-court

13 statement is inadmissible unless it is specifically excluded as non-hearsay under Rule

14 11-801(D) or falls within a recognized exception in the rules of evidence, or is

15 otherwise made admissible by rule or statute.” State v. Bullcoming, 2010-NMSC-007,

16 ¶ 33, 147 N.M. 487, 226 P.3d 1 (internal quotation marks and citation omitted), rev’d

17 on other grounds by Bullcoming v. New Mexico, 564 U.S. 647 (2011).

18   {32}   Relevant here is the present sense impression exception to the hearsay rule.

19 Pursuant to Rule 11-803(1) NMRA, in order for a hearsay statement to be admissible

                                              17
 1 as a present sense impression, the statement must be one that “describes or explains

 2 the event or condition, and it must be made very close in time to the event that the

 3 statement describes. The judge must decide if the time element affects the statement’s

 4 reliability and if there is any apparent motive to lie.” State v. Chavez, 2008-NMCA-

 5 125, ¶ 9, 144 N.M. 849, 192 P.3d 1226. “We review the admission of evidence

 6 pursuant to an exception or an exclusion to the hearsay rule under an abuse of

 7 discretion standard.” State v. Largo, 2012-NMSC-015, ¶ 22, 278 P.3d 532.

 8   {33}   Here, Castaneda refused to testify and, in lieu of his testimony, the State sought

 9 to admit the phone call recording under Rule 11-803(1). The district court allowed the

10 recording to be admitted over Defendant’s objection, finding that Castaneda was

11 unavailable, and “the recording is a sufficient indicia of reliability to be admitted.”

12   {34}   On appeal, Defendant argues that the phone call was inadmissible hearsay and

13 does not fall within the present sense impression exception. Specifically, Defendant

14 contends that the call was made after the homicide, and the caller was merely

15 describing being shown Victim’s body sometime earlier. Defendant further argues that

16 the caller “had the time to alter or misrepresent his perceptions.” Because Defendant

17 acknowledges that the caller’s hearsay statements— “Dominic just killed somebody.

18 . . . Slit his throat open and showed me everything”—explained what he had

19 personally perceived, the only question on appeal is whether the statements were made



                                                18
 1 sufficiently close in time to when the caller perceived Victim’s body. We conclude

 2 that the district court did not abuse its discretion in admitting the telephone call.

 3   {35}   A DACDC officer testified that he first observed Defendant covered in blood

 4 at approximately 8:00 p.m. The officer also testified that he had last seen Defendant

 5 without bloody clothes about thirty to forty minutes earlier. The phone call was made

 6 at 7:59 p.m. and the emergency response was initiated at 8:00 p.m., which means that

 7 the homicide occurred sometime between 7:19 p.m. and 7:59 p.m. During the phone

 8 call, the caller stated that the killing “just” happened and that prison was not locked

 9 down yet because “[t]hey’re barely finding out.” Towards the end of the phone call,

10 the caller said, “the C.O.’s are coming now. . . . They told me to hang up, babe. I got

11 to go. Okay.” Based on these facts, we conclude that the district court could properly

12 determine the phone call was made very close in time to the event that the statements

13 describe. In addition, Defendant does not allege that Castaneda had any particular

14 motive to alter or misrepresent his perception, and the district court explicitly

15 determined that “the recording is a sufficient indicia of reliability to be admitted.”

16   {36}   Therefore, we hold that the district court did not abuse its discretion in

17 admitting the phone call recording because the hearsay statements were made

18 immediately after the caller perceived the event and condition, and the district court

19 found that the statements were sufficiently reliable.

20 3.       Confrontation Clause

                                              19
 1   {37}   The next question presented is whether Defendant’s right to confront witnesses

 2 against him was violated by admission of the phone call recording. “Under the

 3 Confrontation Clause, U.S. Const. amend. VI, an out-of-court statement that is both

 4 testimonial and offered to prove the truth of the matter asserted may not be admitted

 5 unless the declarant is unavailable and the defendant had a prior opportunity to

 6 cross-examine the declarant.” State v. Smith, 2016-NMSC-007, ¶ 42, 367 P.3d 420

 7 (internal quotation marks and citation omitted). A statement is testimonial when its

 8 “primary purpose . . . is to establish or prove past events potentially relevant to later

 9 criminal prosecution.” State v. Navarette, 2013-NMSC-003, ¶ 8, 294 P.3d 435

10 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006). “Claimed violations of the

11 Sixth Amendment right to confrontation are reviewed de novo.” State v. Tollardo,

12 2012-NMSC-008, ¶ 15, 275 P.3d 110.

13   {38}   Defendant argues on appeal that his right to confrontation was violated by the

14 admission of the phone call. He specifically contends that it was “testimonial because

15 it was made by an inmate who knew that the call was recorded and could have made

16 it for the purpose of providing evidence.” (Internal quotation marks and citation

17 omitted.) For the following reasons, we are unpersuaded.

18   {39}   There is no evidence that the caller “intend[ed] to establish some fact with the

19 understanding that [the] statement may be used in a criminal prosecution.” Navarette,

20 2013-NMSC-003, ¶ 8 (internal quotation marks and citation omitted). Defendant

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 1 merely posits the hypothetical that the call “could have” been made for use in a

 2 criminal prosecution but does not establish that was the caller’s intent or primary

 3 purpose. See, e.g., State v. Imperial, 2017-NMCA-040, ¶ 38, 392 P.3d 658 (“When

 4 the primary purpose of a statement is not to create a record for trial, the Confrontation

 5 Clause is not implicated.” (internal quotation marks and citation omitted)), cert.

 6 denied, 2017-NMCERT-003, ___ P.3d ___. Moreover, Defendant alleges that the

 7 phone call “was a rushed attempt to record the caller’s version of events” but cites no

 8 evidence in the record to support his argument. Nor does Defendant provide any

 9 support for the proposition that inmate phone calls are inherently testimonial simply

10 because they are made with the knowledge that they are recorded. We conclude,

11 therefore, admission of the phone call did not violate Defendant’s confrontation rights

12 because the statements made therein were not testimonial.

13 Ineffective Assistance of Counsel

14   {40}   Defendant next argues that his trial counsel provided ineffective assistance of

15 counsel by failing to request a mistrial or a curative instruction immediately after the

16 prosecutor asked Defendant about his prior murder conviction. Defendant does not

17 sufficiently develop this argument and concedes that habeas proceedings are a more

18 appropriate venue for addressing ineffective assistance of counsel claims so that an

19 evidentiary hearing can take place on the record. See State v. Grogan, 2007-NMSC-



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1 039, ¶ 9, 142 N.M. 107, 163 P.3d 494. We instruct Defendant to petition for a writ of

2 habeas corpus on his ineffective assistance of counsel claim if he is so inclined.

3 CONCLUSION

4   {41}   Defendant’s conviction is affirmed.

5   {42}   IT IS SO ORDERED.

6                                         __________________________________
7                                         LINDA M. VANZI, Chief Judge

8 WE CONCUR:


 9 _________________________________
10 MICHAEL E. VIGIL, Judge


11 _________________________________
12 TIMOTHY L. GARCIA, Judge




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