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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: ____________

Filing Date: December 16, 2013

Docket No. 32,066

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

BRAD ALLEN,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

Thomas J. Hynes, District Judge

Gary K. King, Attorney General

Santa Fe, NM

M. Anne Kelly, Assistant Attorney General

Albuquerque, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender

Allison H. Jaramillo, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

GARCIA, Judge.

{1} The primary issue before us concerns the preservation of error regarding the

admissibility of a prior conviction for impeachment purposes when that prior conviction

arose after the entry of an Alford plea in one of a related series of criminal charges against

Defendant. During pretrial motions in limine, the district court ruled that the related prior

conviction was admissible as impeachment evidence, and Defendant chose to preemptively

address the prior conviction head-on during direct examination. We conclude that the district
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court did not err in making the evidentiary rulings that are challenged by Defendant.

Defendant also makes a claim for ineffective assistance of counsel that was not sufficiently

developed at trial. We affirm.

FACTS

{2} Defendant was charged with criminal sexual contact and attempted criminal sexual

contact of several minors. The trial with respect to each individual minor was separated from

the other related trials, but all of Defendant’s charges remained before the same judge. In the

first prosecution (2010-1063-6), Defendant entered into a plea pursuant to North Carolina

v. Alford, 400 U.S. 25 (1970). The district court accepted the plea but stated it would defer

any action in the first case until the resolution of the second case. The memorandum of plea

and order filed in the district court stated that the district court accepted “Defendant’s plea

and decline[d] at th[at] time to adjudicate guilt.”

{3 Prior to trial in the second prosecution (2011-293-6), the State filed a motion for an

adjudication of guilt in the first prosecution. The State expressly indicated its intention to

inquire as to whether Defendant was a convicted felon, should Defendant choose to testify

in the second prosecution. During the hearing on the State’s motion, Defendant informed the

district court that he had not yet been adjudicated guilty on his plea and argued that it would

be inappropriate for the State to impeach Defendant’s testimony with his plea at that time.

The court explained that it had accepted Defendant’s plea after the State laid the factual basis

for its case against Defendant and did not withhold adjudication of guilt. Instead, the court

had chosen not to take further action in the case until the other charges against Defendant

were resolved. The district court then entered an adjudication of guilt against Defendant and

expressly stated that, “[t]he conviction will be available for impeachment purposes at the

trial” in the second prosecution.

{4} The morning of trial in the second prosecution, defense counsel renewed its objection

to the use of the conviction from the first prosecution to impeach Defendant’s testimony. The

State clarified that it intended to ask Defendant only if he had been convicted of a felony

without requesting that Defendant identify the precise felony for which he was convicted.

The court agreed that this limitation would be a fair “compromise,” and defense counsel

offered no further objections.

{5} At trial, Defendant testified on his own behalf. Defense counsel’s first question to

Defendant was, “You’re a convicted felon, aren’t you, sir?” Defendant responded, “Yes, sir.”

At the very end of the prosecutor’s cross-examination of Defendant, the prosecutor asked

Defendant if he was a convicted felon. Defendant repeated that he was a convicted felon.

The State again mentioned Defendant’s prior conviction during its discussion of credibility

in closing argument.

{6} Following trial, the jury convicted Defendant on one count of CSCM and was

deadlocked on the other count of CSCM. Defendant then entered into another Alford plea
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agreement to dispose of all of the remaining counts against him. The plea agreement was

conditioned on Defendant’s ability to appeal the jury verdict. If Defendant’s appeal is

successful, he will be allowed to withdraw his guilty plea. Defendant timely filed an appeal

of his conviction.

DISCUSSION

{7} Defendant appeals the district court’s adjudication of guilt in the first prosecution,

as it applies to the second prosecution, and the jury verdict in the second prosecution. On

appeal, Defendant argues that it was error to permit impeachment with his prior conviction

and that his counsel was ineffective in failing to engage in a redirect examination of a

witness. We will address each argument in turn.

A. Impeachment With Defendant’s Alford Plea

1. Preservation

{8} We first address Defendant’s assertion that the district court erred when it allowed

the State to impeach Defendant’s credibility during the second prosecution with evidence

of his Alford plea in the first prosecution. Before trial the prosecution gave notice that, if

Defendant chose to testify, it intended to impeach him with evidence of his Alford plea from

the first prosecution. The district court granted the State’s motion regarding impeachment

and allowed the State to use Defendant’s conviction in the first prosecution if Defendant

testified in the second prosecution. After the district court granted the State’s motion to

allow it to use Defendant’s conviction in the first prosecution for impeachment proposes,

Defendant made a tactical decision to lessen its impact by preemptively disclosing the prior

conviction when he testified on direct examination. See Ohler v. United States, 529 U.S. 753,

762-63 (2000) (Souter, J., et al., dissenting) (addressing the strategic waiver of prior

objections by offering the evidence preemptively before the evidence is used by the state).

The State contends that Defendant’s tactical decision to preemptively reveal his prior

conviction would now prevent the issue from being reviewed on appeal.

{9} “The primary purposes for the preservation rule are: (1) to specifically alert the

district court to a claim of error so that any mistake can be corrected at that time, (2) to allow

the opposing party a fair opportunity to respond to the claim of error and to show why the

district court should rule against that claim, and (3) to create a record sufficient to allow this

Court to make an informed decision regarding the contested issue.” Kilgore v. Fuji Heavy

Indus. Ltd., 2009-NMCA-078, ¶ 50, 146 N.M. 698, 213 P.3d 1127. Defendant here did so,

objecting to the State’s in limine notice of its intent to use his plea for impeachment purposes

and again, prior to trial. See State v. Thang, 41 P.3d 1159, 1168 (Wash. 2002) (en banc).

Preservation for review requires a fair ruling or decision by the district court in order to

provide the lower court with an opportunity to correct any mistake, give the opposing party

an opportunity to demonstrate why the district court should rule in its favor, and create a

record that enables this Court to make informed decisions. State v. Janzen, 2007-NMCA-
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134, ¶ 11, 142 N.M. 638, 168 P.3d 768. The State argues that this error was strategically

waived and could not be preserved because the district court had no opportunity to make a

ruling on the application of Ohler or the desire by the defense to mitigate the effect of the

conviction’s introduction during the second prosecution. We conclude that Defendant has

not waived his right to appeal by the preemptive use of his prior conviction in the second

prosecution.

{10} In Ohler, the United States Supreme Court concluded that a defendant waives his

appellate standing concerning admission of prior convictions when he preemptively

introduces the prior convictions after an unfavorable ruling on a motion in limine. 529 U.S.

at 760. Ohler notes that “any possible harm flowing from a district court’s in limine ruling

permitting impeachment by a prior conviction is wholly speculative” because such orders

may be revisited at any time during trial. Id. at 759 (alteration, internal quotation marks, and

citation omitted). A strongly worded four-justice dissent in Ohler expressed a concern that

the decision rested not on precedent but on a “commonsense” rule that did not make sense

when applied. 529 U.S. at 761-62 (Souter, J., et al., dissenting). Because state courts are not

bound by the United States Supreme Court’s interpretation of federal rules of procedure,

several states have now rejected the majority ruling in Ohler. See, e.g., State v. Swanson, 707

N.W.2d 645, 654 (Minn. 2006) (“In light of our prior decisions on these issues, we hold that

a defendant who testifies about his convictions on direct examination after denial of a motion

in limine to exclude those convictions has not forfeited the opportunity to appeal the

admissibility of those prior convictions.”); State v. Gary M.B., 2004 WI 33, ¶ 17, 270 Wis.2d

62, 676 N.W.2d 475 (“The Court’s formulation of the strategic waiver rule in Ohler is

contrary to the approach Wisconsin courts have utilized. Finally, as the dissent recognized

in Ohler, the majority’s holding is against the great weight of academic authority.”); State

v. Daly, 623 N.W.2d 799, 801 (Iowa 2001) (“Moreover, the rule of waiver is contrary to

established precedent in this state.”). In rejecting Ohler, other courts have reasoned that a

district court is fully aware of the proposed evidence and law when it rules on such evidence

in limine and that it is a poor trial tactic for defense attorneys to wait for the prosecution to

introduce such evidence on cross-examination. State v. Keiser, 807 A.2d 378, 387-88 (Vt.

2002); Thang, 41 P.3d at 1167-68; Daly, 623 N.W.2d at 801. Given the nature of this tactical

dilemma, a defendant is allowed to appeal a district court’s preliminary ruling even after

preemptively admitting prior bad acts or convictions before they are used against him/her

by the state. See Thang, 41 P.3d at 1168 (“A defense lawyer who introduces preemptive

testimony only after losing a battle to exclude it cannot be said to introduce the evidence

voluntarily. Waiver is the voluntary relinquishment of a right.”).

{11} Although the State’s position is well reasoned and in accord with numerous state and

federal jurisdictions, New Mexico precedent permits a defendant to both pull the sting as a

preemptive measure and preserve evidentiary issues for appeal if the district court has made

a prior ruling regarding the admissibility of the evidence. See State v. Zamarripa, 2009-

NMSC-001, ¶ 50, 145 N.M. 402, 199 P.3d 846 (“There is no waiver where a defense

attorney, his or her original objection rejected by the court, determines to ‘make the best of

a bad situation’ and argues the improperly admitted evidence in the client’s favor.” (citation
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omitted)); Sayner v. Sholer, 1967-NMSC-063, ¶ 6, 77 N.M. 579, 425 P.2d 743 (“The court

having already overruled the proper objection . . ., counsel was placed in the rather

unenviable position of having to make the best of a bad situation. This was not a waiver.”

(internal quotation marks and citation omitted)); State v. Romero, 2006-NMCA-045, ¶ 16,

139 N.M. 386, 133 P.3d 842 (holding that, where “improper evidence is admitted over

objection, resort may be had to like evidence without waiving the original error.” (internal

quotation marks and citation omitted)), aff’d, 2007-NMSC-013, 141 N.M. 403, 156 P.3d

694. We therefore conclude that it makes no difference who placed the prior conviction

before the jury because this Court can review any potential error made when the district

court ruled that it would allow the State to use the prior conviction evidence to impeach the

Defendant’s credibility.

{12} We are compelled by our New Mexico precedent to reach a result contrary to the

majority opinion in Ohler. Consistent with other jurisdictions, we hold that we may consider

the admissibility of criminal convictions for impeachment purposes where the defendant, as

a tactical matter, elects to preemptively introduce such evidence after having previously

objected to its admissibility and obtained a ruling from the district court. Zamarripa, 2009-

NMSC-001, ¶ 50. Accordingly, we conclude that Defendant made a sufficient record to

preserve for appeal his objection to the use of his prior conviction for impeachment purposes

during the second prosecution. We now address the merits of Defendant’s appeal. 

2. Admissibility of Defendant’s Prior Conviction

{13} When the district court initially accepted Defendant’s plea in the first prosecution,

it apparently intended to postpone any formal adjudication of guilt until the resolution of the

other charges against Defendant in the second prosecution. But when the State sought an

earlier adjudication so that the first conviction could be used for impeachment purposes, the

district court made the express decision to adjudicate Defendant guilty in the first

prosecution and permit the State to impeach Defendant with this specific conviction in the

second prosecution. Defendant asserts that the process used by the district court was error.

{14} “We review the admission of evidence under an abuse of discretion standard and will

not reverse in the absence of a clear abuse.” See State v. Sarracino, 1998-NMSC-022, ¶ 20,

125 N.M. 511, 964 P.2d 72. “We cannot say the [district] court abused its discretion by its

ruling unless we can characterize it as clearly untenable or not justified by reason.” State v.

Rojo, 1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and

citation omitted). Although couched as a challenge to the entry of evidence in the second

prosecution, Defendant actually claims that error was committed based upon the timing of

the district court’s entry of his conviction in the first prosecution. Defendant’s challenge to

the entry of the conviction resulting from his Alford plea thus appears to raise a question of

law that we will review de novo. See State v. Lohberger, 2008-NMSC-033, ¶ 18, 144 N.M.

297, 187 P.3d 162 (stating that questions involving procedural rules are reviewed de novo).

Defendant, however, has provided this Court with no authority that would constrain the

district court from adjudicating a defendant guilty prior to sentencing, and we therefore
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assume that no such authority exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100

N.M. 764, 676 P.2d 1329.

{15} The defenses raised in the second prosecution turned on Defendant’s credibility, a

factor Defendant chose to raise by testifying. Rule 11-609(A)(1) NMRA permits the

impeachment of a witness with a prior felony conviction. Defendant argues that a guilty plea

should not be viewed as a conviction for purposes of Rule 11-609 because a defendant can

withdraw his or her guilty plea under certain circumstances. But this Court has already held

that an adjudication of guilt constitutes a “conviction” for purposes of the rule, even if the

judgment and sentence has not yet been filed. See State v. Keener, 1981-NMCA-139, ¶ 15,

97 N.M. 295, 639 P.2d 582 (holding that a jury verdict of guilty constitutes a conviction for

purposes of impeachment under the rule, even though a final judgment and sentence had not

yet been filed). Keener explained that a conviction can still be used to impeach a defendant

where a judgment has been entered on a verdict but it is not final because an appeal has been

taken. Id. Without supporting authority, we see no reason to treat Defendant’s conviction

pursuant to an Alford plea differently because sentencing was postponed. A conviction based

on a plea is just as relevant to credibility as a judgment of conviction. See id. ¶ 16. Nothing

in the record indicates that Defendant was prevented from withdrawing his Alford plea up

until the hearing where the district court decided to adjudicate the first conviction and use

it in the second prosecution. Even after the decision to adjudicate guilt on the first

conviction, Defendant never attempted to withdraw his Alford plea prior to sentencing.

Therefore, we hold that the district court’s adjudication of guilt based on Defendant’s Alford

plea was properly available to the State as impeachment evidence in the second prosecution.

Accordingly, we hold that Defendant has failed to establish reversible error.

B. Ineffective Assistance of Counsel

{16} Defendant argues that his trial counsel was ineffective by (1) failing to engage in

redirect examination in order to rehabilitate Defendant’s testimony, (2) failing during direct

examination to ask Defendant whether the complaining witness had ever been in his shop

in her pajamas, and (3) failing to present evidence that the shop where the charges originated

regarding one of the alleged victims was not set up for business until September 2009, four

months outside the charging period in the indictment. “When an ineffective assistance claim

is first raised on direct appeal, we evaluate the facts that are part of the record. If facts

necessary to a full determination are not part of the record, an ineffective assistance claim

is more properly brought through a habeas corpus petition, although an appellate court may

remand a case for an evidentiary hearing if the defendant makes a prima facie case of

ineffective assistance.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.

Because there is a preference for habeas corpus proceedings over remand, “[a] record on

appeal that provides a basis for remanding to the [district] court for an evidentiary hearing

on ineffective assistance of counsel is rare.” State v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M.

333, 950 P.2d 776.

{17} We presume counsel is competent. State v. Jacobs, 2000-NMSC-026, ¶ 48, 129 N.M.
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448, 10 P.3d 127. In order to establish a prima facie case of ineffective assistance of counsel,

a defendant must demonstrate that “(1) counsel’s performance was deficient in that it fell

below an objective standard of reasonableness; and (2) that [the d]efendant suffered

prejudice in that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” State v. Aker,

2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (internal quotation marks and citation

omitted). Whether to engage in redirect examination or to ask certain questions on direct

examination are generally matters of trial strategy. “On appeal, we will not second guess the

trial strategy and tactics of the defense counsel.” Lytle v. Jordan, 2001-NMSC-016, ¶ 43,

130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted). We do not find

ineffective assistance of counsel if there is a plausible, rational trial strategy or tactic to

explain counsel’s conduct. See State v. Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146

P.3d 289; Roybal, 2002-NMSC-027, ¶ 21.

{18} As the State points out in its brief, Defendant’s bare allegations of error are totally

undeveloped, were partially addressed by other witnesses, or were never made part of the

record at trial. Defendant did not elaborate or explain these alleged deficiencies when he

filed his reply brief. As a result, the necessary facts and arguments are not sufficiently

developed for review or proper consideration by this Court. See State v. Arrendondo,

2012-NMSC-013, ¶ 44, 278 P.3d 517 (declining to review an ineffective assistance claim

on direct appeal where the record is insufficient, without prejudice to a defendant’s right to

make an adequate record and seek relief in the context of a post-conviction habeas corpus

proceeding).

{19} Furthermore, even if Defendant were able to demonstrate that his trial counsel’s

conduct was deficient, based on the record before us, Defendant has failed to establish that

any of the claimed actions or inactions prejudiced him. Defendant has not demonstrated any

reasonable probability that the outcome of his trial would have been different if trial counsel

had acted differently. See Aker, 2005-NMCA-063, ¶ 34. Accordingly, we conclude that

Defendant has failed to establish a prima facie case of ineffective assistance of counsel that

would merit remand on direct appeal.

{20} For these reasons, we hold that Defendant must pursue the issue, if at all, in a

collateral habeas corpus proceeding. See State v. Martinez, 1996-NMCA-109, ¶ 25, 122

N.M. 476, 927 P.2d 31 (“This Court has expressed its preference for habeas corpus

proceedings over remand when the record on appeal does not establish a prima facie case of

ineffective assistance of counsel.”); see also Baca, 1997-NMSC-059, ¶ 25 (“A record on

appeal that provides a basis for remanding to the [district] court for an evidentiary hearing

on ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition for

writ of habeas corpus[.]”).

CONCLUSION

{21} For the foregoing reasons, we affirm the judgment of the district court.
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{22} IT IS SO ORDERED.

____________________________________

TIMOTHY L. GARCIA, Judge

WE CONCUR:

_______________________________________

CYNTHIA A. FRY, Judge

_______________________________________

LINDA M. VANZI, Judge