     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
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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. 33,699

 5 MARTIN LOPEZ,

 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 Maha Khoury, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 L. Helen Bennett, P.C.
14 L. Helen Bennett
15 Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 FRENCH, Judge.
 1   {1}   Martin Lopez (Defendant) appeals his convictions of three counts of first-degree

 2 criminal sexual penetration of a minor and one count of second-degree criminal sexual

 3 contact of a minor. Defendant advances four arguments for reversal: (1) it was

 4 fundamental error to admit the testimony of police investigator Robert Hernandez

 5 (Investigator Hernandez), (2) ineffective assistance of counsel, (3) the district court

 6 failed to conduct a fair trial, and (4) the district court improperly denied Defendant’s

 7 motion for a new trial. We affirm after considering each argument.

 8 BACKGROUND

 9   {2}   Defendant was accused of sexual abuse by his former foster child (Child)

10 approximately two years after she left his home. During the time the police were

11 investigating Child’s allegations, Defendant “got information” that his sons were

12 involved in criminal activity and went to the police station under that pretense. There,

13 Investigator Hernandez and Investigator Richard Chavez (Investigator Chavez)

14 questioned Defendant in tandem about Child’s allegations. They spoke with

15 Defendant for approximately seventy-seven minutes, including an eleven minute

16 break. Defendant verbally indicated that he understood that he was not under arrest,

17 was free to leave, and was not obligated to answer any questions. He did not receive

18 a statement of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).




                                               2
 1   {3}   At trial, Child testified that Defendant forced her to perform sexual acts when she

 2 was five years old and lived in his home. Child testified in explicit detail, including

 3 accusations that Defendant coerced Child to perform sexual acts in order to obtain

 4 food she and her brothers needed. She testified that Defendant would hit or kick her

 5 if she did not comply or “for not doing a good job,” and that his physical abuse caused

 6 bruises. Child also told the jury that she was forced to “sit on the floor for hours

 7 picking up like grains of sand, stuff that you can’t even see, like stuff you could get

 8 with a vacuum cleaner” and that Defendant put a spider in her bedroom and wouldn’t

 9 remove it. Child explained that she did not tell anyone about the abuse earlier than she

10 did because Defendant had told her not to tell anyone, threatened to hurt her if she did,

11 and because she did not feel that she could trust anyone until, eventually, she came to

12 trust her stepmother and father. Child was thirteen years old when she testified at trial.

13   {4}   Investigator Hernandez testified about Defendant’s interview at the police station.

14 Defendant, according to Investigator Hernandez’s testimony, repeatedly denied

15 engaging in sexual activity with Child. However, Investigator Hernandez testified that

16 Defendant wavered back and forth about whether Child was a liar:

17          At first, he would say that she’s lying. Then when asked if a little five-
18          year-old girl is going to lie, he said, [w]ell, she’s not lying. And we tried
19          to explain to him that he couldn’t have it 50/50, either she’s lying or
20          she’s not. And he would indicate, [w]ell, she’s not lying, but she’s not
21          telling the truth.


                                                 3
 1 He also testified that Defendant talked “in circles a lot[,]” was “very elusive, . . .

 2 nervous, . . . shaking[,]” and had trouble remembering simple things, such as the

 3 number of bedrooms in his house and his address.

 4   {5}   Two of Defendant’s sons, his wife (Wife), and Defendant himself testified on

 5 his behalf. They presented a dramatically different version of life in the home than

 6 Child. According to the testimony of one of the Defendant’s sons, the family ate

 7 dinner together as a routine, including Child and her two younger brothers. Defendant

 8 and Wife chose to bring Child and her brothers along for two family

 9 vacations—including a trip to California to attend their eldest son’s graduation from

10 the Marines—despite the option to place them in respite care with another foster

11 family. Both of Defendant’s sons who lived in the home testified that they did not see

12 any bruises or injuries on Child and, had they seen any, they would have reported their

13 observations to their mother.

14   {6}   Wife testified that she and Defendant had been married for thirty years. She

15 testified that she went to church with Child four times a week, and that Child wore a

16 dress on those occasions. Wife testified that she was a light sleeper, and that Child

17 slept in a bedroom with a common wall to the bedroom she shared with Defendant.

18 Wife testified that she could hear and feel her husband rise from the bed to use the

19 bathroom, that she rose in the night two or three times to care for the infant in the


                                              4
 1 home, and there was never a time when she felt that Defendant was out of bed for an

 2 unusually long time. Child played on the family’s trampoline, played with the family

 3 ducks, and referred to Wife and Defendant as “Mrs. Duckling” and “[D]addy.” She

 4 testified that Child received three meals a day, plus snacks, and was a “big eater.”

 5 Defendant and Wife attempted to adopt the younger of Child’s brothers, but were

 6 unsuccessful because an adoption was already underway.

 7   {7}   Defendant testified that he left high school before graduation and worked in

 8 pecan fields for more than thirty-five years. He testified that he generally worked from

 9 7:00 a.m. to 5:00 p.m. during the week, and 7:00 a.m. to 12:00 p.m. on Saturday. For

10 approximately two months during the winter, Defendant worked seven days a week

11 from 7:00 a.m. to 6:00 p.m. According to Defendant, he did not drink, smoke, take

12 drugs, or any medication for any purpose. He asserted that his questioning in

13 connection with this case was the first time he was ever questioned by the police.

14 Defendant confirmed at trial that, during his questioning by the police, he stated that

15 he went to the police station of his own volition and understood that he was not under

16 arrest and was free to leave at any time. Defendant testified that he did not sexually

17 abuse Child.

18   {8}   The jury convicted Defendant on all charged counts.




                                              5
 1   {9}    After trial, Defendant filed a motion for a new trial on the basis of newly

 2 discovered evidence. The new evidence was a neuropsychological evaluation by Dr.

 3 Noah K. Kaufman that was ordered as a pre-sentencing evaluation. Before the hearing

 4 on the motion for a new trial, but after Defendant filed his written motion, Dr.

 5 Kaufman performed a second evaluation and wrote an additional report. Dr. Kaufman

 6 concluded that Defendant had poor language and cognitive skills, and was highly

 7 suggestible to leading questions. Defendant argued that a new trial was warranted on

 8 the basis of Dr. Kaufman’s evaluations and the findings in the report. On behalf of the

 9 State, Dr. Edward Siegel also conducted an evaluation of Defendant. Dr. Siegel

10 concluded that Defendant had been—and remained—competent to stand trial, was

11 capable of independent decisions, and decided to remain at the interview with the

12 police even though he was not under arrest and was free to leave. After a hearing, the

13 district court denied Defendant’s motion for a new trial and additionally found

14 Defendant competent.

15   {10}   Defendant also filed a motion for a new trial in the interest of justice pursuant

16 to Rule 5-614 NMRA. In part, Defendant argued that Child’s testimony “simply made

17 no sense, and raised the prospect of a troubled mind[,]” and, in contrast, the testimony

18 on behalf of Defendant “was logically consistent and reasonable.” Defendant’s

19 fundamental contention was that the jury’s verdict was not supported by the evidence.


                                                6
 1 Defendant’s motion for a new trial in the interest of justice was denied. This appeal

 2 followed. Additional facts will be added as needed in the following analysis.

 3 DISCUSSION

 4 A.       Admission of Investigator Hernandez’s Testimony

 5   {11}   Defendant contends that he is entitled to a new trial because his statements to

 6 Investigators Hernandez and Chavez should have been suppressed. Defendant argues

 7 that the district court committed error by allowing Investigator Hernandez to testify

 8 about Defendant’s statements. Defendant advances two distinct arguments. First, that

 9 Defendant did not make a valid waiver of his Miranda rights. Second, that Defendant

10 was improperly interrogated, rendering his statements involuntary. As explained

11 below, we do not embrace either argument.

12   {12}   Defendant’s claim of error that his statements to the police should have been

13 suppressed was not preserved—he did not, for example, object or file a motion to

14 suppress. Therefore, we review his arguments only for fundamental error. See Rule

15 12-216(A) NMRA (stating that preservation of a question for appellate review

16 requires a ruling or decision of the district court); Rule 12-216(B)(2) (stating that

17 unpreserved questions involving fundamental error or the fundamental rights of a

18 party may be reviewed on appeal). We reverse for fundamental error only to correct

19 injustices that shock the conscience of the court. State v. Saiz, 2008-NMSC-048, ¶ 59,


                                               7
 1 144 N.M. 663, 191 P.3d 521, abrogated on other grounds by State v. Belanger, 2009-

 2 NMSC-025, ¶ 36 n.1, 146 N.M. 357, 210 P.3d 783. Such injustices may be procedural

 3 or substantive. “[A] mistake in the process [that] makes a conviction fundamentally

 4 unfair notwithstanding the apparent guilt of the accused” is fundamental error, as is

 5 the conviction of an “indisputably innocent” defendant. Saiz, 2008-NMSC-048, ¶ 59

 6 (internal quotation marks and citation omitted). The threshold inquiry of fundamental

 7 error review is to determine whether there was error. State v. Silva, 2008-NMSC-051,

 8 ¶ 11, 144 N.M. 815, 192 P.3d 1192.

 9 I.       Defendant’s Miranda Rights

10   {13}   The Fifth Amendment of the United States Constitution provides that “[n]o

11 person . . . shall be compelled in any criminal case to be a witness against himself[.]”

12 U.S. Const. amend V. From that right flows the holding of Miranda: before being

13 subjected to a custodial interrogation, a person “must be warned that he has a right to

14 remain silent, that any statement he does make may be used as evidence against him,

15 and that he has a right to the presence of an attorney, either retained or appointed.”

16 384 U.S. at 444. The right to a Miranda warning is triggered when a person is both

17 interrogated and in custody. State v. Wilson, 2011-NMSC-001, ¶ 48, 149 N.M. 273,

18 248 P.3d 315, overruled on other grounds by State v. Tollardo, 2012-NMSC-008,

19 ¶ 37, n.6, 275 P.3d 110.



                                              8
 1   {14}   We examine first whether Defendant was in custody. A person is in custody if

 2 under formal arrest or if a person’s movement is restrained to the degree associated

 3 with a formal arrest. State v. Nieto, 2000-NMSC-031, ¶ 20, 129 N.M. 688, 12 P.3d

 4 442. Our inquiry into whether a person was in custody is objective, requiring that we

 5 determine whether, under all the circumstances, “a reasonable person would have felt

 6 he or she was not at liberty to terminate the interrogation and leave.” Howes v. Fields,

 7 ___ U.S. ___, ___, 132 S. Ct. 1181, 1189 (2012) (alteration, internal quotation marks,

 8 and citation omitted); see also State v. Snell, 2007-NMCA-113, ¶ 10, 142 N.M. 452,

 9 166 P.3d 1106 (“A suspect is in custody for the purpose of Miranda if a reasonable

10 person in his position would believe he was not free to leave the scene of the

11 interrogation.”).

12   {15}   Defendant has not developed an argument that he was in custody. Instead,

13 Defendant merely contends that “even a cursory examination of the transcript of the

14 event demonstrates” that he was in custody. We disagree.

15   {16}   At trial, Defendant confirmed statements made to the police during the

16 questioning: namely, that he went to the police station of his own accord, and

17 understood that he was free to leave and not under arrest. Moreover, Defendant did

18 not testify at trial that during the questioning he felt as though he was in custody or

19 not free to leave. Thus, we conclude that Defendant understood that he was at liberty



                                              9
 1 to conclude the interview and leave the police station at any time. That is to say,

 2 although Defendant argues on appeal that we should determine that his liberty was

 3 constrained, the record does not support an inference that Defendant believed himself

 4 to be in custody.

 5   {17}   Nevertheless, we objectively examine whether a reasonable person in

 6 Defendant’s circumstances “would have felt he . . . was not at liberty to terminate the

 7 interrogation and leave.” Howes, ___ U.S. at ___, 132 S. Ct. at 1189 (alteration,

 8 internal quotation marks, and citation omitted). The fact that the questioning took

 9 place in a room at the police station does not, of itself, render the questioning

10 custodial. See State v. Munoz, 1998-NMSC-048, ¶ 44, 126 N.M. 535, 972 P.2d 847,

11 (citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (stating that, without restraint

12 on movement or formal arrest, questioning a suspect in a coercive environment such

13 as a police station does not convert “a noncustodial situation . . . to one in which

14 Miranda applies”)); Nieto, 2000-NMSC-031, ¶ 21 (holding that an interview was non-

15 custodial when the suspect was interviewed in a room in a police station with the door

16 closed and the suspect’s back to a wall with an officer between the suspect and the

17 door, accompanied the police to the interview at their request, was transported to and

18 from the police station, and was free to terminate the interview and leave at any time).

19 The questioning, from which Defendant was by all appearances free to leave at any



                                              10
 1 time, lasted approximately seventy-seven minutes. At the conclusion of the interview,

 2 Defendant left. We conclude that a reasonable person in Defendant’s shoes would

 3 have felt, as did Defendant, that his or her liberty was unconstrained during the

 4 interview. Therefore, Defendant was not in custody. See Howes, ___ U.S. at ___, 132

 5 S. Ct. at 1189 (stating that the initial inquiry into “whether a person is in custody” is

 6 whether a “reasonable person” in the shoes of the defendant “would have felt” at

 7 liberty to conclude the questioning and leave (alteration, internal quotation marks, and

 8 citation omitted)); Snell, 2007-NMCA-113, ¶ 10 (“A suspect is in custody for the

 9 purpose of Miranda if a reasonable person in his position would believe he was not

10 free to leave the scene of the interrogation.”).

11   {18}   Because Defendant was not in custody, he was not entitled to a Miranda

12 warning. See Wilson, 2011-NMSC-001, ¶ 48 (stating that a person is not entitled to

13 a Miranda warning unless interrogated while in custody). Thus, the admission of his

14 un-Mirandized statements through the testimony of Investigator Hernandez was not

15 error.

16 II.      The Interview

17   {19}   Defendant contends that his statements to the police were not voluntary but,

18 instead, coerced. He argues that he was interrogated improperly and, as a consequence

19 of official overreaching by the police, his statements should have been excluded.



                                              11
 1 Defendant states that the police overreached because they used what Defendant refers

 2 to as the “Reid Technique” and further, that his interrogation exceeded the standards

 3 of that technique.1 Moreover, argues Defendant, our analysis should be informed by

 4 Defendant’s “physical and mental state . . . , as depicted by Dr. Kaufman.”

 5   {20}   Use at trial of a statement or confession that was not voluntary does not

 6 comport with federal due process requirements. See State v. Trujillo, 1979-NMCA-

 7 055, ¶ 22, 93 N.M. 728, 605 P.2d 236 (“[A]ny criminal trial use against a defendant

            1
 8           The Reid Technique is “probably the most widely used method of interrogation
 9   in the United States[.]” Tracy Lamar Wright, Let’s Take Another Look at that: False
10   Confession, Interrogation, and the Case for Electronic Recording, 44 Idaho L. Rev.
11   251, 260 (2007); see also Charles D. Weisselberg, Mourning Miranda 96 Cal. L. Rev.
12   1519, 1530 (2008) (“The largest national provider of training in interrogation
13   techniques is Chicago-based John E. Reid & Associates.”). “The underlying
14   philosophy . . . is simple: a suspect will not confess unless he perceives it to be in his
15   best interest to do so, and it is the job of the interrogator to engender this belief.”
16   Wright, supra, at 262. The Reid Technique recommends that the subject be isolated
17   in a private, sparsely furnished, quiet room. Weisselberg, supra, at 1532. The
18   technique consists of nine steps: (1) “a direct, positively presented confrontation of
19   the suspect with a statement that he is considered to be the person who committed the
20   offense”; (2) introduction of “a theme for the interrogation, a reason for the
21   commission of the crime, which may be a moral (but not legal) excuse or a way for
22   the suspect to rationalize her actions”; (3) “overcoming denials”; (4)-(6) “overcoming
23   the suspect’s reasons why he would not or could not commit the crime, keeping the
24   suspect's attention and handling a suspect’s passive mood”; (7) a “critical” step where
25   “the officer formulates alternative questions, one of which is more acceptable or
26   understandable than the other. The question is followed by a statement of support for
27   the more morally acceptable alternative. However, whichever alternative is chosen by
28   the suspect, the net effect will be the functional equivalent of an incriminating
29   admission”; (8)-(9) “taking the suspect’s oral statement and converting it to a written
30   confession.” Id. at 1532-33 (alterations, internal quotation marks, and citations
31   omitted).

                                                12
 1 of his involuntary statement is a denial of due process of law, even though there is

 2 ample evidence aside from the confession to support the conviction.” (citing Mincey

 3 v. Arizona, 437 U.S. 385, 398 (1978) (internal quotation marks and citation omitted))).

 4 Pursuant to the Due Process Clause of the Fourteenth Amendment, “certain

 5 interrogation techniques, either in isolation or as applied to the unique characteristics

 6 of a particular suspect, are so offensive to a civilized system of justice that they must

 7 be condemned[.]” Munoz, 1998-NMSC-048, ¶ 20.

 8   {21}   In the absence of official coercion, a statement or confession is voluntary. See

 9 Munoz, 1998-NMSC-048, ¶ 21 (“Voluntariness means freedom from official

10 coercion.” (internal quotation marks and citation omitted)). If a statement is the

11 product of official coercion that led to a defendant’s will being overborne and his or

12 her capacity for self-determination critically impaired, then the defendant’s statement

13 is inadmissible. Id. ¶ 20. Conversely, if a statement is the result of an “essentially free

14 and unconstrained choice[,]” then it may be used in court. Id. ¶ 21. “On appeal, we

15 review the totality of the circumstances to determine independently whether the

16 prosecution has proved that a confession was given voluntarily[,]” id. ¶ 23 (internal

17 quotation marks and citation omitted), including “both the characteristics of the

18 accused and the details of the interrogation[.]” State v. Ruud, 1977-NMCA-072, ¶ 12,

19 90 N.M. 647, 567 P.2d 496.



                                               13
 1   {22}   Defendant contends that there are two factors that render his statements legally

 2 involuntary when examined under our totality of the circumstances test: (1) the use,

 3 and misuse, of the Reid Technique of interrogation by the police, which constituted

 4 official overreaching; (2) the mental and physical condition of Defendant. We first

 5 examine Defendant’s contention about the police use of the Reid Technique of

 6 interrogation.

 7   {23}   When examining whether a state actor has coerced a defendant into making an

 8 involuntary statement, “[the appellate courts] look to whether the police used fear,

 9 coercion, hope of reward, or some other improper inducement.” State v. Cooper,

10 1997-NMSC-058, ¶ 44, 124 N.M. 277, 949 P.2d 660. In this case, Defendant has not

11 made such a demonstration. Defendant has not asserted that the questioning was

12 extraordinarily long, and it wasn’t—seventy-seven minutes with an eleven minute

13 break. Cf. Munoz, 1998-NMSC-048, ¶¶ 35-37 (holding that a 100 minute interrogation

14 did not weigh in favor of a confession being involuntary and citing to cases in which

15 much longer interrogations did not invalidate a confession for involuntariness).

16 Defendant has not asserted that the police threatened him or made any promise to him

17 that would constitute an improper inducement. Cf. Aguilar v. State, 1988-NMSC-004,

18 ¶¶ 3, 12-14, 106 N.M. 798, 751 P.2d 178 (concluding that statements were involuntary

19 where the defendant’s mental impairments were known to his interrogator, and the



                                               14
 1 interrogator used a combination of threats of additional charges and promises of

 2 leniency to induce a confession). Defendant was free to leave and was not physically

 3 uncomfortable. See State v. Juarez, 1995-NMCA-085, ¶ 19, 120 N.M. 499, 903 P.2d

 4 241 (stating that an involuntary statement can result from physical discomfort during

 5 questioning); cf. Mincey, 437 U.S. at 399 (concluding that statements were involuntary

 6 where the defendant was interrogated while seriously wounded and in the hospital,

 7 “encumbered by tubes, needles, and breathing apparatus” and “at the complete mercy”

 8 of his interrogator (internal quotation marks omitted)). In sum, the circumstances of

 9 the interview were not extraordinary and do not give us pause from the standpoint of

10 applicable constitutional authority. Accordingly, Defendant’s general argument that

11 his interrogation was overzealous is unpersuasive. Although Defendant contends that

12 the police used “[m]any of the [Reid T]echniques,” the label applied to the activities

13 of the police is unimportant. Instead, we measure whether a person’s due process

14 rights were violated by the activities of the police and the totality of the circumstances

15 of the interrogation. Cf. State v. Gutierrez, 2011-NMCA-024, ¶¶ 23-24, 150 N.M. 232,

16 258 P.3d 1024 (stating that when analyzing whether the use of a confession violates

17 due process, the district court considers a “litany” of factors, including factors directed

18 toward both the details of the interrogation and the characteristics of the accused).




                                               15
 1   {24}   Defendant also argues that, given his mental and physical condition, the

 2 interrogation rendered his statements involuntary. We observe initially that Defendant

 3 has not noted any physical condition or physical discomfort that he suffered. Also,

 4 although Defendant contends that his mental state was “a context affecting what must

 5 be regarded as coercive and overreaching[,]” he does not explain or make argument

 6 other than to refer generally to Dr. Kaufman’s post-conviction evaluation. In any case,

 7 Dr. Kaufman found that Defendant had poor English language skills, poor cognitive

 8 skills, and was more likely to yield to leading questions than ninety-eight percent of

 9 his comparison group. Dr. Siegel, who performed a post-conviction report on behalf

10 of the State, concluded that Defendant was competent to stand trial and had the

11 “ability to arrive at independent decisions even when guided by an attorney.”

12   {25}   The question we face is whether Defendant’s will was overborne and his

13 capacity for self-determination critically impaired under the circumstances of the

14 interview and given his mental deficits. See State v. Evans, 2009-NMSC-027, ¶ 33,

15 146 N.M. 319, 210 P.3d 216 (stating that the question of whether a confession was

16 voluntary turns on whether “a defendant’s will has been overborne and his capacity

17 for self-determination has been critically impaired” (alteration, internal quotation

18 marks and citation omitted)). We conclude that it was not. First of all, we note that

19 Defendant repeatedly denied his guilt and never confessed. The tenor of his statements



                                             16
 1 throughout the interview was not of resignation or admission but, instead, willful

 2 denial of guilt:

 3        Q:     Well did you . . . have you had any relationships with her?
 4        A:     No, what do you mean?

 5        Q:     Like touched her inappropriately, . . . talked to her inappropriately
 6               or anything like that?
 7        A:     No.

 8        Q:     No?
 9        A:     No.

10        ....

11        Q:     Did you show her? Did she ever see your #1?
12        A:     No. No. No. . . . ‘Cause I know.

13        ....

14        Q:     But you need to come out and tell me because I’m . . . I’m . . . I’m
15               not gonna sit here and play these word games with you. Okay.
16               Because you know right now in your head that something
17               happened . . .
18        A:     No.

19        Q:     And you’re . . . and you’re nervous.
20        A:     Nothing happened.

21        ....

22        Q:     And it wasn’t supposed to happen, exactly and people make
23               mistakes, is that correct?
24        A:     But it didn’t happen.

25        Q:     It never happened?
26        A:     No.

                                              17
 1          ....

 2          Q:     Did you want to tell me the truth?
 3          A:     About what?

 4          Q:     About you and [Child?]
 5          A:     Nothing . . . nothing happened.

 6          Q:     And that’s it, you’re not gonna . . . that’s the story you’re gonna
 7                 stick with?
 8          A:     [N]ot that I’m gonna stick with it, nothing happened.

 9          ....

10          Q:     Cause you know it’s a lie.
11          A:     No, it’s not.

12          Q      You . . . you know it’s a lie.
13          A:     You’re saying it’s a lie.

14          Q:     You know it’s a lie. [Interview concludes]

15 Moreover, when Defendant later discussed with Dr. Siegel his reasons for remaining

16 in the interview, Defendant is quoted by Dr. Siegel as stating “to stay and clear things

17 up.” Neither our review of the interview, nor Defendant’s retrospective understanding,

18 indicate that his will was overborne.

19   {26}   We conclude under the totality of the circumstances, including the conduct of

20 the police, the circumstances of the interview, and Defendant’s mental condition, that

21 his will was not overborne nor was his capacity for self-determination critically

22 impaired. Thus, Defendant’s statements were the product of an “essentially free and



                                                18
 1 unconstrained choice” and were not improperly used against him at trial through the

 2 testimony of Investigator Hernandez. See Munoz, 1998-NMSC-048, ¶ 21 (stating that

 3 when a statement is the product not of a person’s overborne will or critically impaired

 4 capacity for self-determination but, instead, an essentially free and unconstrained

 5 choice, then the statement is admissible in court).

 6 B.       Ineffective Assistance of Counsel

 7   {27}   Criminal defendants are entitled to “ ‘reasonably effective’ assistance of

 8 counsel” pursuant to the Sixth Amendment of the United States Constitution. State v.

 9 Garcia, 2011-NMSC-003, ¶ 33, 149 N.M. 185, 246 P.3d 1057. A successful

10 ineffective assistance of counsel claim requires that a defendant demonstrate both that

11 counsel erred and that the error prejudiced the defendant. State v. Arrendondo, 2012-

12 NMSC-013, ¶ 38, 278 P.3d 517.

13   {28}   There is a strong presumption that counsel has not erred unreasonably but,

14 instead, that counsel’s performance “falls within the wide range of reasonable

15 professional assistance.” Garcia, 2011-NMSC-003, ¶ 33 (internal quotation marks and

16 citation omitted). A defendant demonstrates that counsel’s error caused prejudice

17 when there is “a reasonable probability that, but for counsel’s unprofessional errors,

18 the result of the proceeding would have been different.” State v. Bernal, 2006-NMSC-




                                             19
 1 050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (internal quotation marks and citation

 2 omitted).

 3   {29}   We evaluate an ineffective assistance of counsel claim raised on direct appeal

 4 only on the basis of the facts in the record. State v. Crocco, 2014-NMSC-016, ¶ 14,

 5 327 P.3d 1068. Because facts not in the record are often necessary to fully determine

 6 whether an action taken by defense counsel was not reasonable or if an error caused

 7 prejudice, ineffective assistance of counsel claims are often better addressed through

 8 habeas corpus proceedings. Arrendondo, 2012-NMSC-013, ¶ 38. In fact, our appellate

 9 courts prefer that ineffective assistance of counsel claims are brought by a petition for

10 writ of habeas corpus. State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d

11 776. However, if on direct appeal a defendant makes a prima facie case for ineffective

12 assistance of counsel on the basis of facts in the record, an appellate court can remand

13 to the district court for an evidentiary hearing. Crocco, 2014-NMSC-016, ¶ 14. A

14 defendant makes a prima facie case when the defendant produces sufficient evidence

15 to allow the trier of fact to infer the fact at issue and rule in the defendant’s favor. Id.

16 When there is a “plausible, rational strategy or tactic to explain the counsel’s

17 conduct[,]” a prima facie case for ineffective assistance of counsel is not made. State

18 v. Astorga, 2015-NMSC-007, ¶ 18, 343 P.3d 1245 (internal quotation marks and

19 citation omitted).



                                                20
 1   {30}   Defendant argues that his counsel was ineffective because counsel failed to: (1)

 2 object to the testimony of Investigator Hernandez; (2) investigate Child’s civil claims

 3 against CYFD; (3) investigate Child psychologically; (4) obtain a report on Defendant

 4 from Dr. Kaufman prior to trial. We evaluate Defendant’s arguments in turn.

 5   {31}   Defendant’s counsel was not ineffective for failure to object to the testimony

 6 of Investigator Hernandez. As stated in paragraph 27 of this opinion, we are not

 7 persuaded by Defendant’s argument that Investigator Hernandez’s testimony about

 8 Defendant’s interview was improperly admitted. Thus, it was not error not to object

 9 to his testimony. Moreover, we are not persuaded that any error resulting in the

10 admission of the testimony would have been prejudicial because Defendant denied his

11 guilt repeatedly throughout the interview. The negative impact of Investigator

12 Hernandez’s testimony was not of such magnitude that we perceive a reasonable

13 probability that Defendant would not have been convicted had the jury not heard it.

14 Therefore, the prejudice prong also was not met. See Bernal, 2006-NMSC-050, ¶ 32

15 (stating that to prevail on an ineffective assistance of counsel claim, “[a] defendant

16 must show a reasonable probability that, but for counsel’s unprofessional errors, the

17 result of the proceeding would have been different.” (internal quotation marks and

18 citation omitted)). Because failing to object to the admission of Investigator

19 Hernandez’s testimony was not error and, even if error, such error was not prejudicial,



                                               21
 1 we decline to hold that Defendant has made a prima facie case for ineffective

 2 assistance of counsel on this basis. See Arrendondo, 2012-NMSC-013, ¶ 38 (stating

 3 that to prevail on an ineffective assistance of counsel claim requires both error by

 4 counsel and that the error prejudiced the defendant).

 5   {32}   Defendant’s remaining ineffective assistance of counsel arguments for

 6 counsel’s failure to: (1) investigate Child’s civil claims against CYFD, (2) investigate

 7 Child psychologically, and (3) obtain a report on Defendant from Dr. Kaufman prior

 8 to trial, are better brought by a petition for writ of habeas corpus. See Crocco, 2014-

 9 NMSC-016, ¶ 24 (noting that “[i]f facts beyond those in the record on appeal could

10 establish a legitimate claim of ineffective assistance of counsel, [the d]efendant may

11 assert it in a habeas corpus proceeding where an adequate factual record can be

12 developed for a court to make a reasoned determination of the issues.”).We examine

13 Defendant’s claims in turn. First, it is not clear from the record before this Court

14 whether, or to what extent, counsel for Defendant investigated the purported civil

15 lawsuit. Nor can Defendant demonstrate from the record whether Defendant suffered

16 prejudice from this failure. Second, it is unclear from the record why counsel for

17 Defendant did not investigate Child’s psychological state. A reasonable attorney could

18 have concluded after seeing Child’s safehouse interview that it was not worth the risk

19 of a psychological evaluation that would bolster Child’s credibility or support a



                                              22
 1 conclusion that Child had been psychologically harmed by sexual abuse. Nor has

 2 Defendant demonstrated prejudice on the basis of the failure to investigate Child’s

 3 psychological state from the record before this Court. Third, with regard to counsel’s

 4 failure to “obtain the report of Dr. Kaufman prior to trial,” Defendant has not

 5 demonstrated prejudice. Dr. Kaufman’s report did not indicate that Defendant was

 6 incompetent, nor, as we concluded above, was it sufficient to exclude testimony about

 7 Defendant’s interview. Also, a reasonable attorney might have chosen not to

 8 emphasize Defendant’s potential neuropsychological deficits because Defendant’s

 9 case at trial in large measure depended on his credibility and reliability. Finally, Dr.

10 Kaufman indicated in his report that Defendant’s neuropsychological deficits might

11 not have been apparent—in other words, a reasonably competent attorney might not

12 have noticed any reason to order such an evaluation. In sum, because each argument

13 failed to demonstrate either counsel error on the basis of facts in the record, prejudice

14 to Defendant due to counsel error, or both, Defendant has not made a prima facie case

15 for ineffective assistance of counsel on the basis of his three remaining arguments. See

16 State v. Trujillo, 2002-NMSC-005, ¶ 38, 131 N.M. 709, 42 P.3d 814 (stating that to

17 establish ineffective assistance of counsel a defendant must point to “specific lapses”

18 by trial counsel and demonstrate that “there is a reasonable probability that, but for

19 counsel’s unprofessional errors, the result of the proceeding would have been



                                              23
 1 different” (internal quotation marks and citation omitted)); Baca, 1997-NMSC-059,

 2 ¶ 25 (stating that “a prima facie case is not made when a plausible, rational strategy

 3 or tactic can explain the conduct of defense counsel” (internal quotation marks and

 4 citation omitted)); State v. Howl, No. 34,033, 2016 WL 3910915, 2016-NMCA-___,

 5 ¶ 10, ___ P.3d ___ (July 14, 2016) (stating that a prima facie case of ineffective

 6 assistance is made only when a defendant can show both: “(1) that defense counsel’s

 7 performance fell below the standard of a reasonably competent attorney, and (2) that

 8 due to the deficient performance, the defense was prejudiced.” (internal quotation

 9 marks and citation omitted)). On the basis of Defendant’s arguments and the record

10 before this Court on direct appeal, Defendant was not denied effective assistance of

11 counsel. Our ruling does not prevent Defendant from seeking collateral review of this

12 issue in habeas proceedings. See Crocco, 2014-NMSC-016, ¶ 24, (“If facts beyond

13 those in the record on appeal could establish a legitimate claim of ineffective

14 assistance of counsel, [the d]efendant may assert it in a habeas corpus proceeding.”).

15 C.       The Trial

16   {33}   Defendant argues that the trial was unfair and that the district court’s failure to

17 ensure a fair trial was an abuse of that court’s discretion that requires us to remand for

18 a new trial. In State v. Grogan, our Supreme Court stated that “in cases of obvious

19 ineffective assistance of counsel, the trial judge has the duty to maintain the integrity



                                                24
 1 of the court, and thus inquire into the representation.” 2007-NMSC-039, ¶ 10, 142

 2 N.M. 107, 163 P.3d 494. The issue in Grogan was whether the district court abused

 3 its discretion by ordering a new trial sua sponte without even holding a hearing

 4 allowing the state to present evidence and argument on the basis of the district court’s

 5 observation of ineffective assistance of counsel. See id. ¶ 8. The Grogan Court held

 6 that the district court did not abuse its discretion because the record supported the

 7 district court’s finding of obvious incompetence by counsel and also “a sufficient

 8 showing of prejudice.” Id. ¶ 18.

 9   {34}   Defendant argues, citing Grogan, that the district court’s failure to order a new

10 trial sua sponte was an abuse of discretion because counsel failed to engage or request

11 an expert to psychologically evaluate Child, failed to obtain a report from Dr.

12 Kaufman for use at trial, and failed to “query regarding the admissibility of testimony

13 from Investigator Hernandez.” Defendant’s argument recasts his failed ineffective

14 assistance of counsel argument. We have already held that Defendant has not made

15 a prima facie case for ineffective assistance of counsel. Accordingly, it was not an

16 abuse of the district court’s discretion to fail to order a new trial on the basis of

17 obvious ineffective assistance of counsel.

18 D.       Motion For a New Trial




                                               25
 1   {35}   Defendant argues that the district court abused its discretion when it denied

 2 Defendant’s motion for a new trial in the interest of justice. Rule 5-614(A) NMRA

 3 provides that a court may grant a new trial to a convicted defendant in the interest of

 4 justice. The general rule is that a motion for a new trial is not favored. State v. Armijo,

 5 1997-NMCA-080, ¶ 24, 123 N.M. 690, 944 P.2d 919. Although the district court may

 6 not replace its judgment for that of the jury “when there is such overwhelming

 7 evidence against conviction that it is apparent to the [district] court that injustice has

 8 been done, the court has the duty to grant a new trial.” State v. Griffin, 1994-NMSC-

 9 061, ¶ 5, 117 N.M. 745, 877 P.2d 551. In order to make this determination, the court

10 may re-weigh the evidence, including the credibility of the witnesses. Id. ¶ 6. On

11 appeal, our appellate courts review the grant or denial of a new trial for “clear and

12 manifest abuse of discretion.” State v. Chavez, 1982-NMSC-108, ¶ 10, 98 N.M. 682,

13 652 P.2d 232.

14   {36}   We conclude that the district court did not abuse its discretion in denying

15 Defendant’s motion for a new trial in the interest of justice. Defendant argues that the

16 district court had a duty to grant a new trial because Child “should have been

17 subjected to rigorous impeachment” and Investigator Hernandez should not have been

18 allowed to testify and, therefore, the State’s case rested on an “insufficient

19 foundation.” We disagree. This is not a case where there was overwhelming evidence



                                               26
 1 against the conviction. The explicit and detailed testimony of Child, which was not

 2 undermined by obvious indicia of unreliability, was a sufficient foundation to satisfy

 3 our appellate review of the district court’s broad discretion to decline to order a new

 4 trial because the jury’s verdict was unjust. Cf. Griffin, 1994-NMSC-061, ¶ 5 (stating

 5 that where there is overwhelming evidence against a conviction such that injustice has

 6 been done, a court has a duty to grant a new trial).

 7 CONCLUSION

 8   {37}   For the reasons stated, we affirm Defendant’s convictions.

 9   {38}   IT IS SO ORDERED.



10                                         ____________________________________
11                                         STEPHEN G. FRENCH, Judge



12 WE CONCUR:



13 _____________________________
14 M. MONICA ZAMORA, Judge



15 ______________________________
16 J. MILES HANISEE, Judge




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