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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. 35,654

5 CHRISTOPHER ZAMORA, 

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY

8 Louis P. McDonald, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM

11 for Appellee

12 Patrick J. Martinez

13 Albuquerque, NM

14 for Appellant

15 MEMORANDUM OPINION

16 VIGIL, Chief Judge.
2

1 {1} Defendant appeals from the district court’s judgment and sentence and order of

2 deferral and remand to the municipal court, entered following a bench trial, convicting

3 him for driving under the influence of intoxicating liquor or drugs (first 

4 offense), failure to maintain a traffic lane, and no driver’s license. This Court issued

5 a calendar notice proposing summary affirmance. Defendant filed a memorandum in

6 opposition to this Court’s notice of proposed disposition, which we have duly

7 considered. Unpersuaded, we affirm.

8 {2} Defendant raises a single issue on appeal: whether he received ineffective

9 assistance of counsel where his trial counsel failed to file a motion to suppress and did

10 not properly subpoena a defense witness for trial. [CN 3] In our calendar notice, we

11 proposed to hold that the record in this case is insufficient to establish whether defense

12 counsel’s actions were unreasonable or caused prejudice to Defendant. [CN 4] See

13 State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 (“When an

14 ineffective assistance claim is first raised on direct appeal, [the appellate courts]

15 evaluate the facts that are part of the record. If facts necessary to a full determination

16 are not part of the record, an ineffective assistance claim is more properly brought

17 through a habeas corpus petition, although an appellate court may remand a case for

18 an evidentiary hearing if the defendant makes a prima facie case of ineffective

19 assistance.” (citation omitted)); see also State v. Aker, 2005-NMCA-063, ¶ 34, 137
3

1 N.M. 561, 113 P.3d 384 (“To establish a prima facie case of ineffective assistance of

2 counsel, [a d]efendant must show that (1) counsel’s performance was deficient in that

3 it ‘fell below an objective standard of reasonableness’; and (2) that [the d]efendant

4 suffered prejudice in that there is ‘a reasonable probability that, but for counsel’s

5 unprofessional errors, the result of the proceeding would have been different.’ ”

6 (citation omitted)). 

7 {3} Specifically, with respect to counsel’s failure to file a motion to suppress, we

8 noted in our calendar notice that there was nothing in the docketing statement to

9 indicate a basis for suppression of the breath alcohol results, and we also observed that

10 there did not appear to be anything in the record before this Court that would establish

11 a basis for suppression. [CN 3] Consequently, we proposed to conclude that

12 Defendant had not demonstrated a prima facie case of ineffective assistance of counsel

13 for the failure of his counsel to file a motion to suppress. See State v. Mosley, 2014-

14 NMCA-094, ¶ 20, 335 P.3d 244 (stating that when a defendant’s ineffective assistance

15 of counsel claim is based upon trial counsel’s failure to suppress evidence, he or she

16 “must establish that the facts support the motion to suppress and that a reasonably

17 competent attorney could not have decided that such a motion was unwarranted”

18 (internal quotation marks and citation omitted)). 
4

1 {4} In his memorandum in opposition, aside from a mere recitation of facts already

2 provided to this Court [see MIO 2-3], Defendant has not provided us with a basis for

3 suppression. This Court will not attempt to divine Defendant’s argument in favor of

4 suppression where it has not even been asserted, let alone adequately developed. See

5 Corona v. Corona, 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty

6 to review an argument that is not adequately developed.”); Elane Photography, LLC

7 v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“To rule on an inadequately briefed

8 issue, [the appellate court] would have to develop the arguments itself, effectively

9 performing the parties’ work for them.”). To the extent Defendant is arguing that his

10 counsel “had evidence in his possession that would have properly challenged the

11 foundation for the admission of [Defendant’s] breath results” [MIO 3], we note that

12 this non-descript evidence does not appear to be a matter of record in this case, and

13 we will not consider matters outside the record. See State v. Harrison, 2010-NMSC14 038, ¶ 10, 148 N.M. 500, 238 P.3d 869 (“Matters outside the record present no issue

15 for review.” (internal quotation marks and citation omitted)). Therefore, we are not

16 convinced that our proposed conclusion on this point was incorrect. See Hennessy v.

17 Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have

18 repeatedly held that, in summary calendar cases, the burden is on the party opposing

19 the proposed disposition to clearly point out errors in fact or law.”). 
5

1 {5} With respect to trial counsel’s failure to properly subpoena defense witness

2 Jason Avery for trial, we noted in our calendar notice that Defendant had not informed

3 this Court what testimony this witness would have provided, other than the

4 generalized claim that he would have laid a foundation for the admission of

5 Intoxilyzer 8000 logs. [CN 4] Further, we noted that the record does not appear to

6 contain any evidence of how the information from Mr. Avery would have changed the

7 outcome of the proceedings, nor does the record otherwise indicate the significance

8 of the logs or their potential impact on the case. [CN 4] Therefore, we proposed to

9 conclude that Defendant had not demonstrated a prima facie case of ineffective

10 assistance of counsel for the failure of his counsel to subpoena Mr. Avery for trial. Cf.

11 State v. Dartez, 1998-NMCA-009, ¶ 27, 124 N.M. 455, 952 P.2d 450 (holding that

12 counsel’s failure to interview the witness was not prejudicial, for purposes of a claim

13 of ineffective assistance, in the absence of any indication that the witness’s testimony

14 would have benefitted the defendant).

15 {6} In his memorandum in opposition, Defendant characterizes Mr. Avery’s

16 potential testimony as “crucial” to challenging the “validity and reliability” of his

17 breath alcohol results. [MIO 3-4] However, Defendant again fails to describe the

18 content of Mr. Avery’s potential testimony or the details of any evidence he wished

19 to introduce but could not due to Mr. Avery’s absence—and the record itself is devoid
6

1 of detail as to both—leaving this Court to speculate as to how exactly Mr. Avery’s

2 testimony would have benefitted Defendant. Thus, we are not convinced that we were

3 incorrect in our proposed disposition on this issue. See Hennessy, 1998-NMCA-036,

4 ¶ 24. 

5 {7} Consequently, we hold that Defendant has not established a prima facie case of

6 ineffective assistance of counsel given the deficiency of the record. However, as we

7 noted in our calendar notice, Defendant may pursue the issue in a habeas proceeding

8 as our courts prefer habeas proceedings so that “the defendant may actually develop

9 the record with respect to defense counsel’s actions.” State v. Arrendondo, 2012-

10 NMSC-013, ¶ 38, 278 P.3d 517. 

11 {8} Accordingly, for the reasons stated above, as well as those provided in our

12 notice of proposed disposition, we affirm. 

13 {9} IT IS SO ORDERED.

14 _______________________________________

15 MICHAEL E. VIGIL, Chief Judge

16 WE CONCUR:

17 ___________________________

18 JAMES J. WECHSLER, Judge
7

1 ___________________________

2 JONATHAN B. SUTIN, Judge