IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1
NO. 30,088 2 STATE OF NEW MEXICO , 3 Plaintiff-Appellee, 4

vs. 5 CARLOS GARCIA , 6 Defendant-Appellant. 7

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY 8 Douglas R. Driggers, District Judge 9 Silvia Cano-Garcia, District Judge 10 Lourdes Martinez, District Judge 11 Law Offices of Nancy L. Simmons, P.C. 12 Nancy L. Simmons 13 Albuquerque, NM 14 for Appellant 15 Gary K. King, Attorney General 16 Max Shepherd, Assistant Attorney General 17 Santa Fe, NM 18 for Appellee 19

DECISION 20CHÁVEZ, Chief Justice. 1
{1} Carlos Garcia (Defendant) appeals his convictions of two counts of first 2 degree murder, conspiracy to commit murd er in the first degree, armed robbery, 3 conspiracy to commit armed robbery, two counts of kidnapping in the first degree, 4 multiple counts of tampering with evidence, conspiracy to tamper with evidence, and 5 arson relating to the deaths of two young men (the victims). Defendant initially 6 claims that he was denied effective a ssistance of counsel because (1) he was 7 deprived of his ability to present an insanitydefense; (2) his attorney failed to secure 8 the testimony of a potentially exculpatory w itness; and (3) his attorney did not call 9 as witnesses at trial his co-defendant and certain unnamed police officers who had 10 supposedly coerced testimony through threats. Defendant then claims that the trial 11 court erred in admitting his statement conf essing to the murders. Defendant also 12 argues that the district attorney’s office had a conflict of interest at trial because the 13 district attorney was married to the lead investigator in the case. Finally, Defendant 14 claims that even if these errors are not individually sufficient grounds for reversal, 15 cumulative error deprived him of his right to due process and a fair trial, warranting 16 reversal. 17 {2} Because we either reject or find in sufficient evidence to support any of 18 Defendant’s claims, we affirm his convictions on all counts. 19

I. INEFFECTIVE ASSISTANCE OF COUNSEL 202 {3} Defendant claims that he received ineffective assistance of counsel in 1 violation of the Sixth Amendment of the United States Constitution in three ways, 2 each of which we discuss in turn. The te st for ineffective assistance of counsel is 3 derived from Strickland v. Washington , 466 U.S. 668, 694 (1984): 4 To establish a claim of ineffec tive assistance, a defendant must 5 show error on the part of counseland prejudice resulting from that 6 error. An error is found if the attorney's conduct fell below that of a 7 reasonably competent atto rney. An error is not unreasonable if it can 8 be justified as a trial tactic or strategy. Prejudice is shown when there 9 is a reasonable probability that, but for counsel's unprofessional errors, 10 the result of the proceeding would have been different. 11 State v. Schoonmaker , 2008-NMSC-010, ¶ 32, 143 N.M. 373, 176 P.3d 1105 12 (internal quotation marks and citations omitted). 13 {4} Typically this Court prefers ineffectiv e assistance of counsel claims to be 14 heard in habeas corpus pro ceedings, since the trial record may not contain sufficient 15 evidence to allow such a determination on direct appeal. Id. ¶ 31. Alternatively, the 16 Court can remand to the trial court if the defendant has made a prima facie showing 17 of ineffective assistance. State v. Bernal , 2006-NMSC-050, ¶ 33, 140 N.M. 644, 18 146 P.3d 289. However, we have been willing to decide the issue of ineffective 19 assistance in some cases, such as when the complained-of incompetence was so 20 obvious that the trial court should have been aware of it and the State does not 21 dispute the relevant facts. Schoonmaker , 2008-NMSC-010, ¶ 31. 22 A. FAILURE TO PRESENT THE INSANITY DEFENSE 233 {5} Defendant claims that he was denied e ffective assistance of counsel when his 1 attorney deprived him of an insanity defe nse, “in spite of the clear indications that 2 his mental condition at the time of the alleged murders was not sound[.]” According 3 to Defendant, this deprivation occurred wh en his private defense counsel failed to 4 take sufficient steps to secure funding for anexpert from either the trial court or the 5 Public Defender Department, or, when su ch funding was not forthcoming, failing 6 to withdraw to allow Defendant to seek representation through the Public Defender 7 Department, which would have paid for e xpert witnesses. The State argues that 8 defense counsel actually “made a strate gic decision after consulting with the 9 Defendant and his family not to present [theinsanity] defense.” We hold that there 10 is insufficient evidence in the record to allow us to decide whether or not counsel’s 11 performance was ineffective in this regard. 12 {6} Defendant’s mental state was a central f actor in the extensive pre-trial history 13 of this case, during which Defendant was represented by four separate attorneys. 14 Shortly after the January 5, 2000 killings of the victims, Defendant was evaluated 15 by Dr. Thomas Calvin Thompson, who conc luded that Defendant was “floridly 16 psychotic” at the time of the evaluation. Defendant accordingly was deemed unfit 17 to stand trial. Almost a year later, af ter having been found competent to stand trial, 18 Defendant announced that he would pursue an insanity defense. Dr. Thompson 19 concluded in a subsequent evaluation of De fendant that “there would have been an 204 extremely high probability that Mr. Garcia was quite psychotic at the time of the 1 alleged crimes[,]” but that he needed “further information” to definitively make this 2 determination. When Defendant’s s econd court-appointed attorney made little 3 progress in securing expert opinions on Defendant’s mental state at the time of the 4 crimes, he was removed as Defendant’s lawyer. As the trial judge explained, “I feel 5 that this case needs to move forward. [The insanity defe nse] is a unique defense, a 6 difficult defense to present, important de fense to present . . . and it has to be 7 presented.” After the third court-appointed attorney failed to meet Defendant’s 8 family’s expectations, they hired private counsel Emeterio Rudolfo to take the case 9 to trial. 10 {7} The case was heard five year s after the crimes were committed. By this time, 11 Defendant’s sanity at the time of the offe nses had apparently been evaluated by Dr. 12 Thompson, who testified at a pre-trial hearing that “it’s a reasonable conclusion that 13 [at the time of the crime] he was psychotic .” In addition, Defendant’s brain was 14 analyzed by Dr. Ricardo Weinstein, an expert witness from California. Dr. 15 Thompson testified that Dr. Weinstein’s te st results indicated that Defendant had 16 “frontal lobe dysfunction, which [Dr. Weinstein] believed [was] consistent with both 17 acquired as well as longer-standing features of mental illness and behavior control 18 difficulties.” The State responded to this evidence by hiring its own expert, Dr. Ned 19 Siegel, who concluded that Defendant was not insane atthe time the crimes were 20 committed. Although questions have b een raised about the preparation of 215 Defendant’s experts, we are satisfied thatconsistent with the record, Defendant’s 1 sanity might have been a significant issue at trial. 2 {8} When Defendant’s case finally came to trial in January 2005, defense counsel 3 did not present an insanity defense. De fense counsel made no reference to a claim 4 of insanity in his opening statement. Th e State presented a strong case based, inter 5 alia, on evidence of Defendant’s stated inte ntion to kill the victims with a gun he had 6 in his possession, the reported statements of co-defendant Steve Calderon, who 7 claimed to have been present when Defendant murdered the victims, and 8 Defendant’s multiple confessions to differe nt people. Appare ntly defense counsel 9 had not yet informed either the State or the trial court whether it would present 10 experts on insanity by the time the State rest ed its case. Defense counsel explained 11 that “there is difficulty for the family to pay these experts.” After a recess to discuss 12 the issue with Defendant and his family, de fense counsel returned to the courtroom, 13 and stated: 14 [Defense counsel:] Your Honor, I met with my client’s family 15 and then spoke with my client beforeand after that. The family doesn’t 16 have the means to pay the expert. We’re going to proceed without the 17 insanity defense. 18 The Court: Okay. Is th at correct, [Defendant]? 19 [Defendant:] Yes, your Honor. 20 Defense counsel attacked the prosecution’s case on a pi ecemeal basis, and Defendant 216 was found guilty on all charges. 1 {9} Defendant now argues that his private counsel, recognizing the importance of 2 the insanity defense and the availability of funding through the Public Defender 3 Department, should have eith er taken steps to secure that funding or recommended 4 that Defendant seek representation from the Public Defender Department and then 5 withdrawn. As Defendant puts it, “[c]on tinued representation of a client without 6 adequate resources, when adequate resour ces are readily available elsewhere . . . 7 would constitute ineffective assistance of c ounsel.” As a result of this allegedly 8 deficient performance, Defendant argue s that he was prejudiced at trial. 9 {10} The State characterizes th e decision to forego the insanity defense as “a 10 strategic decision.” The State also imp lies that since there was no hope of getting 11 public funding while private counsel Rudolfo was Defendant’s attorney, the family 12 was presented with the decision of (1) whether to keep retained counsel and forego 13 the insanity defense, or (2) to have private counselwithdraw and again request 14 representation from the Public Defender Department. They chose the first 15 alternative. 16 {11} The evidence before us is not sufficient to allow us to decide whether defense 17 counsel’s performance was deficient and, if so, whether Defendant was prejudiced 18 by any deficiency. First, our case law s uggests that defense counsel may or may not 19 have performed deficiently, consistent withthe facts in the r ecord. We agree with 20 the State that defense counsel’s failure to approach the trial court or the Public 217 Defender Department for funding was not in effective. At the time of Defendant’s 1 trial, Subin v. Ulmer provided that a trial court coul d not force the Public Defender 2 Department to provide funding for expert a ssistance to a private attorney’s indigent 3 client. 2001-NMCA-105, ¶¶ 2, 4, 131 N.M. 350, 36 P.3d 441. After Defendant’s 4 trial, Subinwas distinguished by State v. Brown , 2006-NMSC-023, ¶¶ 24-25, 139 5 N.M. 466, 134 P.3d 753, which obligated the Public Defender Department to 6 provide funding for indigent clients of pro bono private counsel, provided certain 7 criteria are met. In the case at bar, we have not been informed whether Rudolfo was 8 working pro bono. Even if he had b een working pro bono, we cannot hold that 9 defense counsel’s failure to anticipate Brown constitutes ineffective assistance of 10 counsel. State v. Savage , 115 N.M. 250, 255, 849 P.2d 1073, 1078 (1992) (“On this 11 record, Defendant has not carried his burden of showing a lack of competence. A 12 showing that counsel has not anticipated a future development in the law is not 13 sufficient. The adequacy of counsel’s performance must be determined by the law 14 in effect at the time of . . . trial.” (i nternal quotation marks and citations omitted)). 15 Subin ’s language was broad, and we believe it could reasonably have been read by 16 Defendant’s attorney to limit the trial court’s ability to require the Public Defender 17 Department to provide assistance even to pro bono private counsel. See 2001- 18 NMCA-105, ¶ 4 (“we find nothing in any constitutional doctrine or statutory 19 provisions authorizing the district court ge nerally to order the [New Mexico Public 20 Defender] Department to provide services to people who are not its clients.”). 218 {12} However, we must still address Defe ndant’s argument that defense counsel 1 should have advised Defendant of the av ailability of funding through the Public 2 Defender Department and then withdrawn. InSchoonmaker , the defendant faced 3 child abuse charges resulting from severe in juries sustained by an infant for whom 4 he was babysitting. 2008-NMSC -010, ¶ 2. He was indigent, but his family chose 5 to pay for private counsel. Id . ¶ 1. The State’s case hinged upon expert testimony 6 on shaken baby syndrome. Id . ¶¶ 19-21. The family coul d not afford to pay for a 7 medical expert, or even for interviews with the State’s medical experts. Id . ¶ 7. 8 When the trial court refused to provideassistance, defense counsel moved to 9 withdraw from the case to assure that th e defendant was able to receive expert 10 assistance from the Public Defender Department. This course of action was also 11 refused by the trial court. Id . ¶¶ 7, 18. This Court held that the denial of the motion 12 to withdraw deprived the de fendant of effective assistance of counsel and that a new 13 trial was required. Id. ¶¶ 40-41. In reaching this result, the Court noted that there 14 was no dispute about the centrality of expertopinion to the case; the fact that the 15 defendant’s inability to secure expert assistance was due to his “impecunious 16 condition[,]” or the fact that he would have gone to the Public Defender Department 17 but for the trial court’s interference. Id. ¶¶ 33-34. This analysis demonstrated that 18 the trial court had denied the defendant competent representation; as the Court 19 observed, “[a] defendant’s in ability to pay for necessary e xperts is not a trial tactic 20 or strategy[.]” Id . ¶ 34. Indeed, in this circumst ance, the Court suggested that “any 219 competent counsel” would withdraw. Id . ¶ 18. 1 {13} Schoonmaker suggests that defense counsel ’s performance may have been 2 deficient. Although the trial c ourt denied the defendant in Schoonmaker necessary 3 but unaffordable expert assist ance, it appears that if the same denial were effected 4 by counsel’s negligence, such as counsel’s failure to advise the client that public 5 subsidy was available, the defendant would also be denied comp etent representation. 6 The problem in the case before us is th at Defendant lacks evidence to support such 7 a claim. For example, there is little direct evidence of the strength of his insanity 8 defense as it would have been presented at trial. Although inability to pay for a 9 necessary expert witness is not a trial strategy, unwillingness to e ither advise a client 10 about or present a hopeless insanity defense certainly is. See Burton v. State, 82 11 N.M. 328, 331, 481 P.2d 407, 410 (1971) (“The failure of an attorney to advise a 12 defendant of all possible defenses is no basis for a claim of incompetency of 13 counsel.”). Moreover, weare not presented with sufficient details of the 14 circumstances under which the decision not to present the insanity defense was 15 made. It is not clear when defense counsel first discussed the issue of expert costs 16 with Defendant, or whether defense couns el ever informed Defendant of the 17 availability of funding if he were to seek representation through the Public Defender 18 Department. If the necessity of paying expert witnesses and the availability of 19 alternative funding had been communicated to Defendant in a timely manner, but 20 Defendant nevertheless requested defense counsel to proceed without the insanity 2110 defense, it seems doubtful that defense c ounsel’s performance would be considered 1 deficient. Under New Mexico’s Rules of Professional Conduct, “the lawyer shall 2 abide by the client’s decision, after consu ltation with the lawyer, as to a plea to be 3 entered[.]” Rule 16-102(A) NMRA; see also State v. Richardson , 114 N.M. 725, 4 730, 845 P.2d 819, 824 (Ct. App. 1992) (“if defense counsel pursued a defense 5 Defendant insisted upon, c ounsel's performance in following that directive should 6 not necessarily result in a new trial, evenif found below the st andards for effective 7 assistance of counsel.”). 8 {14} Nor does the Court have sufficient ev idence to determin e whether Defendant 9 was prejudiced by the lack of an insan ity defense. Defendant argues that Dr. 10 Thompson’s evaluations strongly suggest that he would testify to Defendant’s 11 insanity at the time of the offense. If pres ented, Defendant claims that “[a] properly 12 mounted defense of insanity drastically alters the landscape of a criminal trial . . . 13 and can have a dramatic effect on the ultim ate disposition of the case[.]” The State 14 contends that its experts woul d have contradicted any clai m of insanity and that the 15 testimony of the witnesses who had seenDefendant around the time of the killing 16 would further undermine any such defense. 17 {15} To demonstrate prejudice, a criminal defendant normally must show that 18 “there is a reasonable probability that, butfor counsel's unprofessional errors, the 19 result of the proceeding woul d have been different.” Schoonmaker , 2008-NMSC20 010, ¶ 32 (internal quotation marks and citation omitted). Here, there is no direct 2111 evidence showing how Defendant ’s experts would have tes tified at trial. Thus, we 1 cannot balance the evidence to determin e whether the case’s outcome would have 2 been affected by such a defense. Howe ver, although Defendant has not carried his 3 burden, we are unable to conclusively hol d that he was not prejudiced; as recited 4 above, the record contains consider able evidence suggesting that it was possible that 5 Defendant’s experts could have supported a meaningful insanity defense. 6 {16} Since Defendant has not carried his burden of demonstrating deficient 7 performance and prejudice even to the pointof presenting a prima facie case, we 8 reject this claim of ineffective assistance of counsel. However, if Defendant is able 9 to develop more evidence, hemay petition the trial court for a writ of habeas corpus 10 on this point. 11 B. FAILURE TO SECURE A POTENTIALLY EXCULPATORY 12 WITNESS 13
{17} Next, Defendant argues that his atto rney should have secured either a 14 statement or live testimony from a cousinof one of the victims. The cousin 15 supposedly stated that on the night of the murders, one of the victims had told him 16 that the victims had a .22 handgun, the samecaliber as the murder weapon, and were 17 going out looking for rival gang members at whom they had previously shot. At 18 trial, defense counsel attempted to introduce this statement through the testimony of 19 Dave Fernandez, an inves tigator with the Doña Ana Sheriff’s Department, who 20 interviewed the victim’s cousin. Defense c ounsel stated at trial that he was forced 2112 to use Fernandez’s testimony because defe nse counsel’s investigator was unable to 1 locate the victim’s cousin in the vicinity of Anthony, New Mexico. Defense counsel 2 argued that although Fernandez’s statement wa s hearsay within hearsay, the victim’s 3 words were a statement against penal in terest, Rule 11-804 NMRA, and the cousin’s 4 statement should come in under the catch-all hearsay exception, Rule 11-807 5 NMRA. The trial court rejected this pos ition, arguing that there were insufficient 6 steps taken to secure the cousin’s attendance at trial and thatthe statements were 7 neither reliable nor did they fall within any of the hearsay exceptions. Defendant 8 does not now argue that this ruling was in correct, but instead claims that it was 9 ineffective assistance to fail to secu re the cousin’s attendance at trial. 10 {18} The State responds that Defendant has made no showing that had he moved 11 for a continuance, he would have been ab le to find the missing witness. Moreover, 12 the State contends that even if the witness had been presen t, there is not a reasonable 13 probability that the jury would have found that someone other than Defendant was 14 the shooter. 15 {19} We hold that counsel’s assistance was not ineffective in failing to secure the 16 cousin’s testimony. Although defense c ounsel’s performance may or may not have 17 been deficient, we are able to concludefrom the record that no prejudice resulted 18 from this witness’s absence at trial. First, there is no evidence that the cousin could 19 have been found, even if defense counsel had made more diligent efforts. Second, 20 it is by no means clear that the cousin would have been willing to testify at trial: as 2113 both the State and Defendant suggested at trial, the victims’ families had become 1 unwilling to assist Defendant. See State v. Hernandez , 115 N.M. 6, 18, 846 P.2d 2 312, 324 (1993) (refusing to find ineffectiv e assistance of counsel because the 3 “[d]efendant has failed to demonstrate th at the potential witnesses were willing to 4 testify and would have give n favorable evidence.”). Third, and most importantly, 5 even if the cousin had testified as Fernandez described, it is difficult to imagine that 6 his testimony would have ch anged the trial’s outcome. There was ample evidence 7 that Defendant committed the murders: witnesses testified that they had seen 8 Defendant with a gun on the day of the murder s, heard him express his desire to kill 9 someone, watched him get into the vic tims’ car, and heard him make multiple 10 confessions admitting that he had committe d the murders. Considering the totality 11 of the evidence presented at trial, we do not believe that the cousin’s testimony was 12 “of sufficient magnitude to call into questi on the reliability of the trial results.” State 13 v. Reyes , 2002-NMSC-024, ¶ 46, 132 N.M. 576, 52 P.3d 948. Since Defendant was 14 not prejudiced, his ineffectiv e assistance claim must fail. 15 C. FAILURE TO CALL CO-DEFENDANT AND POLICE OFFICERS 16 {20} In his last ineffective assistance of counsel claim, Defendant argues that 17 defense counsel should have subpoenaed (1) his co-defendant, and (2) unnamed 18 police officers for questioning at trial. He claims that his co-defendant “made 19 multiple statements that may have cast th e veracity of Defendant’s confession into 20 doubt” and that the police officers “made threats and otherwise coerced testimony 211 Defendant does not allegeany difference between U.S. Const. amend. XIV 21 and N.M. Const. art. II, § 18, and we acco rdingly decide this issue under federal 22 14 against Defendant.” Appellate defense counsel admits that regarding the police, 1 “Defendant’s communication on this point is relatively non-specific as to the 2 identities of the police officers as well as the particular testimony that Defendant 3 argues was coerced or improperly obtaine d.” The State argues that Defendant’s 4 claims about the officers are without factual support, and his argument regarding co5 defendant Steve Calderon is undermined by the lack of evidence that Calderon 6 would actually have testified, since his conviction was on appeal during Defendant’s 7 trial. 8 {21} We reject this ineffective assistance claim; there is insufficient evidence in the 9 record to allow us to decide it. It is well established that the burden of 10 demonstrating ineffective assistance is on the defendant. See State v. Hunter , 11 2006-NMSC-043, ¶ 13, 140 N.M. 406, 143 P.3d 168. Defendant essentially admits 12 that he made no such showing. We have no way of knowing whether defense 13 counsel’s performance was deficient or whether prejudice resulted. As with 14 Defendant’s first ineffective assistance claim, if sufficient facts do develop, 15 Defendant may bring a habeas corpus petition to test his argument. 16 II. ADMISSION OF DEFENDANT’S CONFESSION TO THE POLICE 17 {22} Defendant argues that the trial judge erred in refusing to suppress Defendant’s 18 allegedly involuntary confession to police, thereby violating his due process rights. 1 19principles and the state cases that have been decided in cons onance with them. See 21 State v. Gomez , 1997-NMSC-006, ¶ 22, 122 N.M. 777, 932 P.2d 1. 22

15 We review claims of involuntariness using the following analysis: 1 The prosecution has the burden of proving the voluntariness of 2 a defendant's statement by a pre ponderance of the evidence. On 3 appeal, when determining whether a confession is voluntary, we review 4 the entire record and the circumst ances under which the statement or 5 confession was made in order to make an independent determination 6 of whether a defendant's confessi on was voluntary. In doing so, we 7 examine the totality of the circumstances surrounding the confession 8 in order to decide the ultimate question of voluntariness. 9 State v. Fekete , 120 N.M. 290, 298, 901 P.2d 708, 716 (1995) (internal quotation 10 marks and citations omitted). See also Aguilar v. State , 106 N.M. 798, 799-800, 751 11 P.2d 178, 179-80 (1988) (describing a three-step review process, derived from 12 Culombe v. Connecticut , 367 U.S. 568 (1961), involving consideration of the totality 13 of the circumstances surrounding the confe ssion, the accused’s response, and a legal 14 analysis of these factors). 15 {23} The substantive question that this anal ysis seeks to answer is whether “a 16 defendant's will has been overborne and his capacity for self-determination critically 17 impaired[.]” State v. Munoz , 1998-NMSC-048, ¶ 20, 126 N.M. 535, 972 P.2d 847 18 (internal quotation marks and citation omitted). In this test, mental capacity is only 19 one element to be considered. Fekete , 120 N.M. at 299, 901 P.2d at 717. Indeed, 20 New Mexico cases, citing Colorado v. Connelly , 479 U.S. 157 (1986), clearly hold 2116 that mental capacity alone cannot be a decisive factor in determining voluntariness. 1 State v. Cooper , 1997-NMSC-058, ¶ 44, 124 N.M. 277, 949 P.2d 660 (“Absent 2 police conduct causally related to the conf ession, there is simply no basis for 3 concluding that any state actor has depriveda criminal defendant of due process of 4 law.” (internal quotation marks and citation omitted)); see also Connelly , 479 U.S. 5 at 164 (“Respondent correctly notes that as interrogators have turned to more subtle 6 forms of psychological persuasion, courts have found the mental condition of the 7 defendant a more significant factor in the ‘ voluntariness’ calculus. But this fact does 8 not justify a conclusion that a defendant's mental condition, by itself and apart from 9 its relation to official coercion, should ever dispose of the inquiry into constitutional 10 ‘voluntariness.’” (internal quotation marks and citation omitted)). 11 {24} In other words, official misconduct is the sine qua non of an involuntariness 12 claim. The mere fact that a defendant, due to mental illness or drugs, was incapable 13 of recalling and retelling earlier events does not undermine his confession for due 14 process purposes, absent some wrongdoing by the police. Police awareness of a 15 mental impairment, however, raises the leve l of scrutiny we give to police tactics. 16 See, e.g., Aguilar, 106 N.M. at 800, 751 P.2d at 180 (“In comparison with all 17 evidence to the contrary, these implied threats and promises, especially when 18 knowingly made to a defendant with diminished mental capacity, rendered the 19 confession involuntary as a matter of law.”). 20 {25} Defendant points to three factors thathe claims rendered his confession 2117 involuntary: (1) he was intoxicated; (2) hewas psychotic at the time of his arrest; 1 and (3) the police pressured him to talk. The State responds thatthere is no evidence 2 of marijuana use as ide from Defendant’s assertions , Defendant’s statement does not 3 indicate that he was confused about the nature of his questi oning or otherwise 4 incompetent, and there is no evidence of police misconduct. Therefore, the State 5 argues that “there is no basis for findi ng that the Defendant’s confessions were 6 anything but voluntarily given.” 7 {26} We hold that the State met its burden of establishing that Defendant’s 8 confession was voluntary. First, as far as intoxication is concerned, the only 9 evidence before us is Defendant’s bare a ssertion during his confession to the police. 10 The officers who took the confession testifie d that they did not notice any signs of 11 marijuana use on Defendant’s part, and there is no other specific evidence that he 12 used marijuana on the day of the murders. It appears that De fendant was alone the 13 day he was arrested and th e evidence is inconsistent regarding whether he smoked 14 marijuana in the days leading up to his arre st. In any event, even if he had been 15 smoking marijuana, Defendant himself admits that intoxication alone is not enough 16 to undermine the voluntariness of his confession. See State v. Ortiz , 77 N.M. 316, 17 319, 422 P.2d 355, 357 (1967) (“A confession is not ipso facto inadmissible if made 18 while under the influence of drugs.”). De fendant has presented no specific evidence 19 of impairment

–or more importantly, police awareness of his claimed impairment–to 20 undermine the evidence pr oduced by the State. See Munoz , 1998-NMSC-048, ¶ 25 2118 (“Defendant's claim that he was in anintoxicated state at the time of the 1 interrogation has no support in the factual record. . . . Defendant was not 2 uncooperative or disassociative but, according to the uncontradicted testimony of 3 [the investigating agent], appeared ‘calm and laid back ’ during the interview. . . . 4 [The agent] did not smell alcohol or perceive anything to indicate that Defendant's 5 mental state was impaired.”). Our own review of Defendant’s statement does not 6 uncover any signs of incapac ity: Defendant understood th e questions he was asked 7 and answered appropriately. 8 {27} Second, although Defendant argues that he was “paten tly insane” at the time 9 of his arrest, the expert on whose authority this cl aim rests admitted before trial that 10 he had neither reviewed the transcript nor the tape of the conf ession before rendering 11 his opinion. In contrast, the State presen ted expert evidence, the testimony of police 12 officers, and the testimony of other witnesse s to support its claim that Defendant was 13 mentally competent at the time of his conf ession. Even if De fendant could produce 14 convincing evidence that he was mentally im paired at the time of his confession, he 15 would have to demonstrate some sortof police awareness and associated 16 overreaching in order to overcome th e State’s contrary evidence. Cf

. Cooper , 17 1997-NMSC-058, ¶ 44 (“[T]hough [the de fendant] may have felt a certain 18 compulsion to talk to police, his incriminating statements might not–as a matter of 19 law–have been involuntary. Specifically, as stated above, we look to whether the 20 police used fear, coercion, hope of reward , or some other improper inducement.”). 2119 No such evidence has been forthcoming. Insum, the State has met its burden in the 1 face of Defendant’s claims of incapacity. 2 {28} Defendant also claims that police t actics rendered his c onfession involuntary. 3 From our review of his confession, the only evidence of possible overreaching by 4 the police came a few minutes into the in terview, after Defendant had waived his 5 rights and made some highly incriminating statements: 6 [Defendant:] [The victim] took us and we . . . we were giving him 7 directions of all . . . all over the pl aces [sic] to take us and stuff, and 8 then na [sic], but they led onto the crime. Uh . . . I’d rather not talk 9 about it right now. 10 [Investigator:] Okay. 11 [Defendant:] I just . . . 12 [Investigator:] Okay. 13 [Investigator:] Okay, if you don’t want to talk about it, that’s fine. 14 Can I ask you just a couple of questions then of what you told me in the 15 car? Do you mind of [sic] I do that? 16 [Defendant:] Uh . . . 17 [Investigator:] Yes or no? 18 [Defendant:] Uh . . . Go ahead sir. 19 (Ellipses in transcribed original.) 20 {29} After this exchange, Defendant recounted the confession he had earlier made 21 to the police after his arrest. After repeating his earlier confession, the officers asked 2220 Defendant to confirm that hehad not been harmed, threatened, or forced to confess 1 and that he understood his rights. The i nvestigators then reminded Defendant that 2 he had not wanted to discuss the events any further and allowed him to terminate the 3 interview. 4 {30} We find no evidence to suggest that De fendant’s “will was overborne.” The 5 police asked Defendant to repeat the stat ements he made in the car and reminded 6 him that he had not wished to speak about anything further. They did not make any 7 threats or promises and di d not engage in any appare ntly coercive conduct. See 8 Fekete , 120 N.M. at 299, 901 P.2d at 717 (“[T]he record does not indicate that [the 9 defendant] was personally mistreated in terms of lengthy or abusive questioning by 10 the police. Also, the record does not support any finding of overreaching by the 11 police. The officers questioning [the defe ndant] did not threaten or coerce him, nor 12 did they promise him any special treatment if he talked to them.”). The State has 13 carried its burden of demonstrating th at Defendant’s confession was voluntary. 14 III. CONFLICT OF INTEREST 15 {31} Defendant’s final argument is that there was a conflict of interest in the 16 proceedings below because th e lead police investigator in this case was married to 17 the Las Cruces district attorney, whose subordinates tried the case. Before trial, 18 Defendant argued that this relationship was grounds for disqualifying the District 19 Attorney’s Office, and his argument was re jected. Defendant claims that to the 20 extent he was prejudiced by this conflict, he was denied his due process rights and 2121 his right to a fair trial. The State replies that Defendant has produced no evidence 1 of prejudice, and as such, his claim must fail. 2 {32} We reject Defendant’s claim. This Court reviews a trial court’s decision not 3 to disqualify a prosecutor under an abuse of discretion standard that gives due 4 deference to factual findings but does not give deference to legal findings, State v. 5 Gonzales2005-NMSC-025, ¶¶ 24-25, 138 N.M. 271, 119 P.3d 151, as follows: 6 [A] trial court should determine whether prosecution by a member of 7 the district attorney's office is incons istent with a particular standard of 8 professional conduct, justifying disqualification of that person. When 9 doing so, the court should indicate the relevant standard and the 10 evidence demonstrating a violation of the standard. At this stage, the 11 defendant has the burden of going forward with evidence and the 12 burden of persuasion. The standardmay be relatively clear in some 13 cases, as it was in [ State v. ] Pennington [115 N.M. 372, 851 P.2d 494 14 (Ct. App. 1993)], in which the disqualified person had previously 15 worked for the defendant on the same case. In other cases, the standard 16 may not be so clear. 17 Id. ¶ 28 (internal citations omitted). Speci fically, the defendant has the burden to 18 show “particular circumstances that ju stif[y] an inference of a disqualifying 19 interest.” Id. ¶¶ 34, 40-47 (holding that the defendant had met his burden by 20 presenting a series of witnesses to a prosecutor’s bias.). 21 {33} During the hearing on his motion to di squalify, Defendant established the 22 relationship between the district attorney and the lead investigator, but he did not 23 explain how this created a conflict of intere st or had a prejudicial effect on his case. 24 Defendant did not point to any particular violation of the ethical rules caused by this 2522 relationship. As a result, the trial court found that “the unrebutted testimony of [the 1 investigator] raised no basis for disqualification of the District Attorney’s office” 2 and concluded that Defendant ’s motion should be denied. 3 {34} We agree with the trial court. The in stant case presents one of the “not so 4 clear” situations referred to in Gonzales , in which the defendant has the burden of 5 showing some “particular circumstances” th at should alert the Court to a potential 6 problem. The marriage of these two partie s alone is not enough. We concede that 7 there exists a potential di vergence between the prosecutor’s “responsibility [as] a 8 minister of justice[,]” Rule 16-308 NMRA(ABA Comment), and the investigator’s 9 responsibility to tenaciously investigate a cas e. However, where the record discloses 10 no personal conflict, no potential leak of privileged inform ation, or any particular 11 evidence of prejudice whatso ever, we are unwilling to presume that the district 12 attorney was unable to live up to her prof essional responsibilities. We find that the 13 trial court did not abuse its disc retion in denying Defendant’s motion. 14 IV. CONCLUSION 15 {35} Having either rejected or found in sufficient evidence to support any of 16 Defendant’s claims, we also reject his c ontention that cumulative error justifies a 17 reversal of his convictions. Accordingly, we affirm his convictions on all counts. 18 {36} IT IS SO ORDERED. 19

_________________________________ 2023 EDWARD L. CHÁVEZ, Chief Justice 1

WE CONCUR: 2

_________________________________ 3 PATRICIO M. SERNA, Justice 4

_________________________________ 5 PETRA JIMENEZ MAES, Justice 6

_________________________________ 7 RICHARD C. BOSSON, Justice 8

_________________________________ 9 CHARLES W. DANIELS, Justice 10