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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. 33,663

5 WILLIAM JEROME HUNTER,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

8 Angie K. Schneider, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender

13 Kathleen T. Baldridge, Assistant Appellate Defender

14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 SUTIN, Judge.
2

1 {1} Defendant has appealed from a conviction for trafficking a controlled

2 substance. We previously issued a notice of proposed summary disposition,

3 proposing to affirm. Defendant has filed a combined memorandum in opposition and

4 motion to amend the docketing statement. After due consideration, we remain

5 unpersuaded. We therefore affirm.

6 {2} Because the pertinent background information and applicable principles have

7 previously been set out, we will avoid unnecessary repetition here and instead focus

8 on the content of the memorandum in opposition.

9 {3} First, Defendant renews his argument that he received ineffective assistance of

10 counsel. [MIO 9-13] Specifically, Defendant contends that trial counsel’s failure to

11 conduct an adequate pretrial investigation, including conducting a pretrial interview

12 of the deputy who participated in the controlled buy and subpoenaing the confidential

13 informant to testify at the trial, was objectively unreasonable and resulted in less than

14 a full and fair presentation of his defense. For the present purposes, we will assume

15 that counsel’s conduct was unreasonable. See generally State v. Sotelo, 2013-

16 NMCA-028, ¶ 31, 296 P.3d 1232 (describing the two prongs of the test for ineffective

17 assistance claims). However, Defendant has not demonstrated that the outcome of the

18 trial would have been different but for this failure. See generally id. Although

19 Defendant speculates that a more thorough pretrial investigation would have
3

1 strengthened the defense, this is insufficient to establish a prima facie case of

2 ineffective assistance of counsel. See State v. Martinez, 2007-NMCA-160, ¶¶ 20, 23,

3 143 N.M. 96, 173 P.3d 18 (rejecting a claim of ineffective assistance of counsel based

4 in part upon failure to conduct pretrial interviews, where the defendant provided no

5 specifics how his defense would have been strengthened by more preparation); State

6 v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (rejecting a claim of

7 ineffective assistance based on counsel’s alleged failure to investigate, where the

8 record was inadequate to support the claim). We reject Defendant’s first argument.

9 However, we reach this conclusion without prejudice to Defendant’s pursuit of habeas

10 corpus proceedings on this issue and the development of a factual record. See State

11 v. Gonzales, 2007-NMSC-059, ¶ 16, 143 N.M. 25, 172 P.3d 162.

12 {4} Second, Defendant continues to challenge the sufficiency of the evidence to

13 support his conviction. [MIO 13-17] We remain unpersuaded. As we previously

14 observed, the State presented evidence that Defendant transferred Oxycodone to an

15 undercover police officer in the course of a controlled buy that was facilitated by a

16 confidential informant. [MIO 6-7] This evidence is sufficient to establish that

17 Defendant committed the offense. See State v. Rael, 1999-NMCA-068, ¶ 27, 127

18 N.M. 347, 981 P.2d 280 (holding that an undercover agent’s testimony that he

19 purchased heroin from the defendant provided sufficient support for a conviction for
4

1 trafficking), rev’d on other grounds sub nom. Rael v. Blair, 2007-NMSC-006, 141

2 N.M. 232, 153 P.3d 657. Although Defendant continues to focus on informational

3 gaps, including the officer’s lack of complete knowledge of the interaction between

4 the informant and Defendant, contending that the transaction could have been circular

5 [MIO 16], the jury reasonably concluded that the evidence was sufficiently

6 compelling to establish Defendant’s guilt beyond a reasonable doubt. This Court will

7 not second-guess the jury’s decision. See State v. Lucero, 1994-NMCA-129, ¶ 10,

8 118 N.M. 696, 884 P.2d 1175 (“[A] reviewing court will not second-guess the jury’s

9 decision concerning the credibility of witnesses, reweigh the evidence, or substitute

10 its judgment for that of the jury.”).

11 {5} Third, Defendant renews his argument that the district court erred in failing to

12 declare a mistrial. [MIO 17-21; RP 169] Relatedly, and by his motion to amend,

13 Defendant argues that the prosecutor’s comments effectively denied him due process

14 and a fair trial. [MIO 1, 17-21] Because this merely elaborates upon an issue already

15 raised, no amendment to the docketing statement is required. On the merits, however,

16 we remain unpersuaded by Defendant’s assertions of error. As we previously

17 observed in the notice of proposed summary disposition, the prosecutor appears to

18 have commented in closing upon defense counsel’s failure to challenge identity, rather

19 than Defendant’s failure to testify. [RP 169] In response Defendant relies upon the
5

1 case of Gonzales v. State, 1980-NMSC-070, 94 N.M. 495, 612 P.2d 1306, in which

2 the Court reversed and remanded for a new trial based upon the prosecutor’s closing

3 references to the defendant’s failure to either deny the allegations or to offer any

4 justification for his acts. [MIO 19] The Court observed that although the prosecutor

5 probably “meant his comments to apply only to the arguments of defense counsel,”

6 his “choice of words” did “not exclude a reasonable interpretation that he was making

7 a direct comment on [the defendant’s] failure to testify.” Id. ¶ 3. Gonzales is

8 distinguishable. In this case, while we lack a precise description of the prosecutor’s

9 choice of words, the record indicates that the comment was ambiguous. Defense

10 counsel appears to have advanced no objection; instead, the district court raised the

11 matter sua sponte after closing arguments had concluded. [RP 169] After inviting

12 arguments and considering the comment in context, the district court ultimately

13 determined that the prosecutor’s comment was responsive to defense counsel’s closing

14 argument. [RP 169] Although the district court offered a curative instruction,

15 Defendant declined. [RP 169] Under the circumstances, and based on the record

16 before us, we cannot say that the district court abused its discretion in denying

17 Defendant’s motion for mistrial. See, e.g., State v. Smith, 2001-NMSC-004, ¶¶ 34-40,

18 130 N.M. 117, 19 P.3d 254 (concluding that a mistrial was not required, where a

19 curative instruction was rejected relative to an improper question, and where the
6

1 prosecutor’s closing remarks, “[t]aken in context,” were responsive to the argument

2 of defense counsel, were based on evidence presented at trial, and did not amount to

3 direct comment upon [the d]efendant’s refusal to testify); State v. Dominguez,

4 2014-NMCA-064, ¶¶ 22, 25, 327 P.3d 1092 (“Trial judges are afforded broad

5 discretion in managing closing arguments because they are in the best position to

6 assess the impact of allegedly improper statements by counsel. We therefore review

7 for abuse of discretion and will only find reversible error in the most exceptional

8 circumstances.” (internal quotation marks and citation omitted)). 

9 {6} Fourth and finally, Defendant continues to assert that his constitutional right to

10 a speedy trial was violated. [MIO 22-27] As we observed in the notice of proposed

11 summary disposition, the first three factors weigh in Defendant’s favor, albeit slightly.

12 [MIO 23-25; CN 6-8] Ultimately, however, the absence of particularized prejudice

13 to the defense constitutes a fatal deficiency. The New Mexico Supreme Court has

14 explained that “generally a defendant must show particularized prejudice” to his

15 ability to defend himself and that it is only where “the length of delay and the reasons

16 for the delay weigh heavily in [the] defendant’s favor and [he] has asserted his right

17 and not acquiesced to the delay” that “the defendant need not show [particularized]

18 prejudice” in order to prevail on a speedy trial claim. State v. Garza,

19 2009-NMSC-038, ¶ 39, 146 N.M. 499, 212 P.3d 387. In this case, Defendant does not
7

1 claim the loss of any exculpatory witnesses, the deterioration of exculpatory evidence,

2 or any other kind of particularized prejudice to his defense. See id. ¶ 36. Neither his

3 generalized assertions of anxiety and concern nor the travel limitations associated with

4 the conditions of his release are sufficient, particularly in light of Defendant’s failure

5 to request any modification. [MIO 27] See id. ¶ 37 (concluding that where the

6 defendant only demonstrated “prejudice in the form of restrictions imposed by

7 pre-trial conditions of release and stress[,]” he failed to demonstrate particularized

8 prejudice as required). We therefore reject Defendant’s speedy trial claim. See id.

9 ¶ 40 (holding that because the “other factors do not weigh heavily in [the d]efendant’s

10 favor” and “[b]ecause [the d]efendant failed to demonstrate particularized prejudice

11 . . . we cannot conclude that [the d]efendant’s right to a speedy trial was violated”).

12 {7} Accordingly, for the reasons stated in our notice of proposed summary

13 disposition and in this Opinion, we affirm.

14 {8} IT IS SO ORDERED.

15 __________________________________

16 JONATHAN B. SUTIN, Judge

17 WE CONCUR:

18 _______________________________

19 CYNTHIA A. FRY, Judge
8

1 _______________________________

2 J. MILES HANISEE, Judge