State v. Aragon

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-102

Filing Date: July 30, 2009

Docket No. 27,615

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

MARTIN ARAGON,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY
John W. Pope, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Max Shepherd, Assistant Attorney General
Albuquerque, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Mary A. Barket, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

CASTILLO, Judge.

{1} Defendant was convicted on one count of child abuse resulting in great bodily harm.
On appeal, he challenges the effectiveness of his trial counsel on several grounds. Based on
counsel’s failure to interview the State’s experts and obtain or consult with an expert, we
hold that Defendant has made a prima facie case for ineffective assistance of counsel. We
remand those two issues to the trial court for further factual development in an evidentiary
hearing. We further hold that Defendant failed to make a prima facie case for ineffective

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assistance of counsel on the remaining claims.

I. BACKGROUND

{2} On December 30, 2004, Defendant was indicted by grand jury on one count of abuse
of a child resulting in great bodily harm, contrary to NMSA 1978, Section 30-6-1 (2004)
(amended 2005). The indictment arose from the events of December 8, 2004. On that day,
it is undisputed that Defendant was left alone with Child, who was Defendant’s four-month-
old son. When Child’s mother returned an hour and a half later, Defendant met her outside.
He told her that Child appeared to have been choking and that he shook Child in an attempt
to resuscitate him. Child’s condition deteriorated overnight, and he was taken to a clinic the
following day. Mother told the doctor at the clinic, Dr. Olmstead, that Child’s eighteen-
month-old brother had fallen onto Child.

{3} Dr. Olmstead testified that she evaluated Child and that while in her presence, Child
suffered a seizure and stopped breathing. Dr. Olmstead then called for emergency transport
because she was “concerned about . . . [the] imminent death if this child did not receive
treatment as soon as possible.” Child was transported to the University of New Mexico
Hospital, where Dr. Coleman took over Child’s care.

{4} Dr. Coleman testified that Child’s injuries included extensive brain injuries, rib
fractures, spinal cord and neck injuries, and a femur fracture; that the rib fractures predated
the other injuries and were between ten and fourteen days old; and the remaining brain,
spinal, and neck injuries had been inflicted more recently—and were between twenty-four
and seventy-two hours old; and that the femur fracture could not be dated. We will refer to
the rib fractures as the “old injuries” and the remaining injuries—excepting the femur
fracture—as the “new injuries.” Based on her evaluation of all of Child’s injuries, Dr.
Coleman called Dr. Campbell, who was a member of the child abuse response team. Dr.
Campbell concluded that Child “had injuries that were diagnostic of abuse.”

{5} When Mother was initially interviewed by a police detective, she told him the same
story that she had told Dr. Olmstead. Eventually, however, Mother changed her story and
told the police that Defendant had admitted to shaking Child. She also told the detective that
Defendant had prevented her from seeking help for Child. Defendant was arrested during
the following week, was arraigned on January 13, 2005, and pled not guilty to the charge.
On January 18, 2005, an attorney who was on contract with the public defender department
was appointed as counsel for Defendant.

{6} Defendant waived his right to a jury trial and was tried by the court on October 31,
2005, and November 1, 2005. The State presented the expert testimony of three doctors.
Defendant put on no expert testimony. Defendant was convicted, and the trial court imposed
a mandatory 18-year sentence. Defendant appeals.

II. DISCUSSION

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{7} Defendant argues that his counsel was ineffective because she (1) failed to interview
the State’s medical experts, (2) failed to consult with or retain a defense expert, and (3)
failed to file a motion to mitigate the length of his sentence. Defendant also argues that
certain rulings by the trial court rendered his counsel ineffective, based on the reasoning in
State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105.

{8} Claims of ineffective assistance of counsel are mixed questions of law and fact,
which we review de novo. State v. Martinez, 2007-NMCA-160, ¶ 19, 143 N.M. 96, 173 P.3d
18. Because Defendant raises the issue for the first time on appeal, he must establish a prima
facie case for ineffective assistance in order for this Court to remand the matter to the trial
court for an evidentiary hearing. See State v. Bernal, 2006-NMSC-050, ¶ 33, 140 N.M. 644,
146 P.3d 289. “A prima facie case is made out when: (1) it appears from the record that
counsel acted unreasonably; (2) the appellate court cannot think of a plausible, rational
strategy or tactic to explain counsel’s conduct; and (3) the actions of counsel are
prejudicial.” State v. Herrera, 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (internal
quotation marks and citation omitted). We begin by addressing counsel’s actions and
inactions, and then we turn to the rulings of the trial court.

A. Counsel’s Actions

1. Medical Experts

a. Unreasonableness and the Strategic or Tactical Basis for
Counsel’s Actions

{9} We first consider whether defense counsel acted unreasonably and without a strategic
or tactical basis when she failed to interview the State’s experts and retain or consult with
an expert for Defendant. See Herrera, 2001-NMCA-073, ¶ 36. There is no dispute that
defense counsel failed to conduct pre-trial interviews of the State’s experts. The record
provides no tactical or strategic basis for this failure, as the expert testimony was critical to
proving the State’s case. Defense counsel was appointed on January 18, 2005. On February
23, 2005, the State filed a witness list, which included Dr. Campbell, one of the State’s
experts. The record shows that the State contacted defense counsel to schedule the
interviews as early as April 2005 and that defense counsel did not respond. On August 30,
2005, the State provided defense counsel with the phone number of the primary
expert—apparently not for the first time. The email exchanged between defense counsel and
the State establishes that the State did not promise to arrange for the interviews but instead
made clear that such was the responsibility of defense counsel. By her own admission,
defense counsel did not speak with Dr. Campbell until late October—in the week before
trial, and that interview was a phone conversation instead of an interview or deposition.

{10} On August 10, 2005, the State filed an amended witness list, which included two
additional doctors. Defense counsel did not contact those witnesses in the two months prior
to trial. Defense counsel asserted that she was waiting for the State to set up contact. In
arguing for more time, defense counsel stated that “it’s a state witness, it’s an expert, and it

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seems to me only fair that they should provide them to me.”

{11} It is undisputed that throughout the pretrial process, Defendant possessed a list of
witnesses and a means of contacting those witnesses. Such is the State’s sole obligation
under Rule 5-501(A)(5) NMRA. We further observe that Defendant provides no authority
for the proposition that it is the State’s responsibility to actually arrange the interviews.
Absent an agreement between the parties, we will not impose an independent duty on the
State to act as a scheduler. Cf. State v. Johnson, 2007-NMCA-107, ¶¶ 22, 32, 142 N.M. 377,
165 P.3d 1153 (acknowledging that when the state agrees to arrange interviews, it has an
obligation to follow through). We turn next to consider whether, based on the theory of
defense, there was a reasonable trial strategy to justify defense counsel’s failure to retain or
consult with an expert.

{12} There are two aspects to Defendant’s claim relating to the failure to obtain an expert.
First, given the importance of expert medical testimony to proving the State’s case, we note
that Defense counsel filed a motion for a continuance in May 2005, indicating that
“[a]dditional time is needed to fully investigate this case and to obtain an expert witness for
the defense.” Later, counsel suggested that an expert would be helpful in her review of
medical documents. Regardless of any need or intention to do so, no expert was
retained—or apparently even consulted. Second, Defendant asserts ineffective assistance
because no experts were retained to testify on his behalf. While we have generally held that
Defendant has not been prejudiced by such inaction in absence of availability of a witness,
expert testimony was the crux of this case. See State v. Crain, 1997-NMCA-101, 124 N.M.
84, 946 P.2d 1095; see also State v. Hernandez, 115 N.M. 6, 846 P.2d 312 (1993).

{13} It was not contested at trial, nor is it contested on appeal, that Defendant shook Child
on December 8, 2004. Defendant’s theory at trial was that earlier injuries—caused by
someone else—were exacerbated by his actions on December 8. In particular, Defendant
pointed out that there was no evidence, apart from the timeline of events, to establish that
he shook Child with the force that the State’s medical experts testified would have been
necessary to cause Child’s new injuries. Because there were no witnesses to Defendant’s
actions on December 8, Defendant asserts that his case depended on his credibility and on
expert testimony to establish a factual basis for Defendant’s theory that Child’s new injuries
stemmed from reinjury or exacerbated existing injuries. See Schoonmaker, 2008-NMSC-
010, ¶ 33 (explaining that because there were no witnesses to the incident, expert testimony
“was critical to the defense to call into question the [s]tate’s expert opinions that [the c]hild’s
injuries could only have been caused by shaking of a violent nature”).

{14} The State argues that defense counsel’s failure to retain an expert witness was tactical
because “she was going to base the defense not on challenging [the scientific] facts but on
establishing that Defendant did not [injure Child].” We are unpersuaded. As the State itself
points out, “there was no evidence admitted at trial that anyone but . . . Defendant was with
[Child] when the injuries occurred on the afternoon of December 8, 2004.” Thus, the
primary evidence that ties Defendant to the injuries is timing—Mother testified that Child
was fine before she left him with Defendant and that Child was injured when she returned.
Defendant could not refute the State’s timing evidence without medical testimony to

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question the causation of Child’s injuries and suggest that Child had been injured earlier,
before Child was in his care, but that the symptoms of the injuries did not noticeably
manifest until a later time. We see no tactical reason not to employ a medical expert in an
attempt to substantiate Defendant’s theory. In addition, nothing in the record indicates that
defense counsel was evaluating whether to call an expert.

{15} It is not necessary for us to address the retention of a testifying expert. Defense
counsel, in her motion for continuance, pointed out that a consulting expert would be useful
to help prepare the case by explaining the medical reports that had recently been received.
We agree that a consulting expert was necessary to understand the nature of the State’s
evidence and to prepare an adequate defense. The failure of defense counsel to retain any
sort of expert in the months prior to trial allows us to reach our conclusion. Thus, based on
her failure to engage an expert for consultation, combined with her failure to conduct
adequate pre-trial interviews of the State’s experts, we conclude that defense counsel acted
unreasonably and without any strategic or tactical justification. Defendant has established
two of the three criteria required to demonstrate a prima facie case of ineffective assistance
for counsel. See Herrera, 2001-NMCA-073, ¶ 36. We now turn to consider the final factor:
whether Defendant was prejudiced by defense counsel’s errors.

b. Prejudice

{16} A defendant must demonstrate that his counsel’s errors prejudiced his defense such
that there was “a reasonable probability that the outcome of the trial would have been
different.” State v. Reyes, 2002-NMSC-024, ¶ 48, 132 N.M. 576, 52 P.3d 948. Defense
counsel’s own lack of diligence resulted in failure to adequately interview the State’s experts
or consult with an expert to prepare for trial. These failings in turn resulted in an inability
to present Defendant’s theory through effective cross-examination of those experts. See
Lytle v. Jordan, 2001-NMSC-016, ¶ 34, 130 N.M. 198, 22 P.3d 666 (determining that
adequate cross-examination eliminated a “reasonable probability that consultation with
experts would have affected the outcome of the trial”). Counsel then did not remedy these
initial failings by engaging an expert to explain Defendant’s theory at trial, thus eliminating
his only line of defense to the State’s charges.

{17} After the parties made their closing arguments, the trial court ruled from the bench
with the following comments:

The, undisputed evidence that basically is that, there, that [C]hild
was, was okay when he was left in the charge of [Defendant], and when
[C]hild’s mother came back, [C]hild manifested all the symptoms that the
doctors said were indicative of child abuse and shaken baby syndrome.
It does concern the [c]ourt, it’s kind of, that there, (indiscernible) that
there are two discrete, at least two discrete child abuse injuries, but we’ll,
we’ll know, we’ll obviously not know about what caused the first one. But
we do, I think under the evidence that we have at hand, beyond a reasonable
doubt know what caused the second injury.

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Based on the evidence presented, the trial court concluded that the timeline demonstrated
that Defendant must have caused the new injuries. Accordingly, there is a reasonable
probability that the outcome of the trial would have been different had defense counsel
engaged an expert to substantiate the defense theory—that the injuries manifested on
December 8 were actually inflicted on an earlier date by another person. Although the
failure to retain a defense expert will not establish in every case the prejudice necessary to
make a claim for ineffective assistance of counsel, under the facts of the present case it is
clear that without an expert to either assist in trial preparation or to testify on Defendant’s
behalf, Defendant was deprived of his only avenue of defense.

{18} The State argues that Defendant suffered no prejudice because non-expert testimony
undercut his defense theory. In support of this argument, the State points out that Defendant
admitted to shaking Child and argues that no expert would have been able to refute
Defendant’s admission or “the undisputed evidence of Defendant’s consciousness of guilt.”
This argument assumes that all experts would agree that any amount or type of shaking
would cause the injuries that Child suffered. Defendant’s theory was that although he shook
Child, he did not do so in a violent enough manner to cause Child’s new injuries and that the
new injuries were the result of someone else’s earlier actions. This theory—if it had been
supported by evidence—could have survived Defendant’s admission that he shook Child.
Further, the theory is not undone by the evidence that Defendant hid from the police—it was
undisputed that Defendant knew he had done something wrong. The State would still have
been required to prove that Defendant’s wrongdoing was specifically the cause of Child’s
extensive new injuries.

c. Prima Facie Case

{19} Having determined that defense counsel’s actions were unreasonable and had no
strategic or tactical purpose and that those actions prejudiced Defendant, we hold that
Defendant has established a prima facie case for ineffective assistance.

{20} Defendant argues that based on these prejudicial errors, we should remand his case
for a new trial. We disagree. Generally, we prefer that claims for ineffective assistance of
counsel be brought by habeas petition. State v. Grogan, 2007-NMSC-039, ¶ 9, 142 N.M.
107, 163 P.3d 494. Nevertheless, “New Mexico appellate courts frequently remand claims
of ineffective assistance of counsel brought on direct appeal for further evidentiary hearings”
because “the record before the trial court may not adequately document the sort of evidence
essential to a determination of trial counsel’s effectiveness.” Id. (internal quotation marks
and citation omitted). In the past, we have required a defendant to show that an expert would
have been—not could have been—available to testify at trial. See Crain, 1997-NMCA-101,
¶ 33. On cross-examination, Defendant referred to a number of medical studies to establish
that his defense theory is not without support in the medical community. Based on our
catalogue of defense counsel’s failures and inactions, it would be impossible for the current
record to demonstrate that an expert was actually available to testify in this regard. On the
other hand, it would be futile to remand the matter for a new trial if no expert is available to
bear out Defendant’s theory. Accordingly, an evidentiary hearing is appropriate to explore
these issues. See State v. Paredez, 2004-NMSC-036, ¶¶ 22, 24, 136 N.M. 533, 101 P.3d 799

6
(remanding for an evidentiary hearing in part because “the record indicate[d] . . . a distinct
possibility” that the defendant’s attorney acted unreasonably and that those actions resulted
in prejudice to the defendant). We remand for the trial court to conduct an evidentiary
hearing regarding defense counsel’s failure to interview the State’s expert witnesses and
failure to consult with or retain an expert.

2. Motion to Mitigate

{21} Defendant also argues that his counsel was ineffective because she failed to file a
motion setting forth mitigating factors. As we have stated, in evaluating a direct appeal
based on ineffective assistance of counsel, we consider whether defense counsel acted
unreasonably, whether counsel’s actions can be justified by trial strategy or tactics, and
whether the defendant was prejudiced by counsel’s unjustified errors. See Herrera, 2001-
NMCA-073, ¶ 36. After reviewing the record, we discern no error on counsel’s part for
failing to file the motion.

{22} Defendant asserts that at the sentencing hearing, the trial court stated that “it believed
a lesser sentence was appropriate” and that the court invited “defense counsel to file a
motion setting forth mitigating factors.” As a result, Defendant maintains that if counsel had
filed a motion, “it is likely that [Defendant] would have received a reduced sentence.” Our
review of the sentencing hearing does not support Defendant’s characterization of the
interchange between counsel and the trial court.

{23} At the hearing, the trial court spoke at length about the difficulties surrounding
mandatory sentencing provisions and the resulting unfairness that stems from removing the
trial court’s discretion. Despite these concerns, the court stated that “I’m going to sentence
him to 18 years because I think that’s what society demands. I think, given the
circumstances of the crime, his past history, that’s what I have to do. I take no pleasure in
it.” Defense counsel suggested that the trial court could reduce the sentence based on
mitigating factors. The trial court expressed some doubt, and the State indicated that
Defendant would have to file a motion. The trial court told defense counsel that “If you file
a motion, I’ll consider it.” Then the trial court continued and warned defense counsel:
“You’ll have to [show] me the mitigating circumstances and I would have to take—that
would have to be—I would have to make a finding of mitigating circumstances. You would
have to show me those mitigating circumstances. I’m not going to do that on whim.”

{24} There is no indication in the record to suggest why counsel failed to file the motion,
and it is conceivable that based on the comments of the trial court, counsel strategically
opted not to proceed with the motion. See State v. Dylan J., 2009-NMCA-027, ¶ 39, 145
N.M. 719, 204 P.3d 44 (“If there is a plausible, rational strategy or tactic to explain counsel’s
conduct, a prima facie case for ineffective assistance is not made.”). Thus, we perceive no
error for failing to file the motion.

{25} Further, Defendant did not establish that the trial court would have reduced the
sentence but for counsel’s failure to file the motion. On appeal, Defendant identifies the
following mitigating circumstances: doubt regarding the source of Child’s injuries,

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Defendant’s history of having been abused as a child, and Defendant’s subsequent
rehabilitative efforts. All of this evidence had already been presented to the trial court
during the course of the trial. The verdict demonstrates that based on the evidence before
it, the trial court had no reasonable doubt about the source of Child’s new injuries.
Defendant’s unfortunate history of being abused came to light during the trial when defense
counsel played a video taped interview between the investigating detective and Defendant.
Finally, the trial court referred to Defendant’s efforts at rehabilitation during sentencing, but
ultimately concluded that he was bound to impose the mandatory sentence. After having
been exposed to all of this mitigating evidence, the trial court stated “I don’t think there’s
any mitigating circumstances, frankly.”

{26} Based on this, we hold that Defendant has not established that he was prejudiced by
his counsel’s failure to file a motion setting forth mitigating factors. Consequently,
Defendant has failed to establish a prima facie case for ineffective assistance of counsel
based on defense counsel’s failure to file a motion laying out mitigating factors.

B. Trial Court Rulings

{27} Defendant also argues that his counsel was rendered ineffective by three of the trial
court’s rulings. Specifically, Defendant contends that “[b]y denying defense counsel’s
motions and refusing to grant any other form of relief, the [trial] court actively caused or
contributed to defense counsel’s incompetence.” This argument is based on our Supreme
Court’s reasoning in the recent Schoonmaker opinion.

1. Schoonmaker’s Presumption of Prejudice

{28} In Schoonmaker, private defense counsel filed a motion to withdraw because the
public defender department would not pay for an expert witness when the defendant was not
represented by the department. 2008-NMSC-010, ¶¶ 7-8. The court would not permit
counsel to withdraw, and counsel was faced with a dilemma: “refuse to proceed without an
order of withdrawal and risk being held in contempt, or proceed without necessary experts.”
Id. ¶ 36. Under those circumstances, our Supreme Court presumed that the defendant was
prejudiced because “counsel’s potential ineffectiveness is expressly brought to the attention
of the [trial] court and is occasioned by the rulings of the court itself.” Id.

{29} In the present case, Defendant argues that his counsel was similarly rendered
ineffective by three of the trial court’s rulings: (1) the denial of a motion to continue so that
counsel could interview certain witnesses, (2) the denial of a motion to exclude evidence,
and (3) the admission of certain medical testimony. We consider each of these rulings to
determine whether they forced defense counsel to provide ineffective assistance of counsel.

{30} On October 28, 2005—three days before trial—Defendant filed a motion requesting
“a reasonable time to interview the State’s experts.” The trial court held a hearing on the
same day and denied the motion to continue the trial. As we have already determined,
counsel’s failure to interview witnesses was the result of her own inaction. Thus, the denial
of the motion to continue for the purpose of interviewing the State’s witnesses did not render

8
counsel ineffective—the need for the motion under these circumstances demonstrates that
counsel had already been ineffective.

{31} In the same October 28, 2005 motion, Defendant requested the trial court to exclude
the testimony of two medical expert witnesses who were disclosed late by the State, as well
as any reference to certain medical records that the State disclosed on October 21, 2005. The
trial court denied the motion and observed that those records were as accessible to defense
counsel as they were to the State. In addition, although the State did not disclose two of its
medical witnesses until August, defense counsel had at least two months to interview those
witnesses before trial. Thus the trial court’s failure to remedy the State’s late disclosure of
records and witnesses did not cause the prejudice to Defendant—defense counsel’s failure
to seek records that were available and failure to interview identified witnesses caused the
prejudice to Defendant.

{32} We have struggled with Defendant’s last argument. He appears to make two
arguments related to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
First, Defendant contends that the trial court improperly delayed the Daubert hearing.
Second, Defendant maintains that because the trial court’s rulings prevented him from
interviewing the State’s experts or from obtaining an expert, the trial court had a heightened
obligation to question the State’s experts at that hearing. Again, defense counsel was
responsible for any prejudice that resulted from these rulings. The motion challenging the
State’s experts was filed on the day of trial—any delay in the hearing is squarely defense
counsel’s responsibility. In addition, defense counsel was not prevented by the trial court’s
rulings from conducting interviews or obtaining an expert—she simply did not do so.

{33} We have already determined that it was unreasonable for defense counsel to fail to
interview the State’s experts and retain or consult with an expert. None of the trial court’s
rulings forced defense counsel to act unreasonably. See Herrera, 2001-NMCA-073, ¶ 36.
Counsel’s own actions led to the rulings and to any resulting prejudice. Accordingly,
counsel’s ineffectiveness was not “occasioned by the rulings of the court” and we decline
to apply the Schoonmaker presumption of prejudice. Schoonmaker, 2008-NMSC-010, ¶ 36.

2. Unreasonable Error

{34} Even were we to accept Defendant’s argument that prejudice should be presumed,
we are further unpersuaded that the trial court should have ruled differently under the
circumstances. See id. ¶ 40 (holding that the trial court should have ruled differently to
avoid rendering the defendant’s counsel ineffective). We address each ruling in turn and
conclude that the trial court did not abuse its discretion. See State v. Torres, 1999-NMSC-
010, ¶ 10, 127 N.M. 20, 976 P.2d 20 (reviewing a ruling on a motion for continuance for
abuse of discretion); State v. Duarte, 2007-NMCA-012, ¶ 14, 140 N.M. 930, 149 P.3d 1027
(reviewing a trial court’s ruling on late discovery for abuse of discretion); State v. Alberico,
116 N.M. 156, 169, 861 P.2d 192, 205 (1993) (“[T]he admission of expert testimony or other
scientific evidence is peculiarly within the sound discretion of the trial court and will not be
reversed absent a showing of abuse of that discretion.”).

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a. Motion for Continuance

{35} In order to determine whether a trial court improperly denied a defendant’s motion
for a continuance, we consider a number of factors. Torres, 1999-NMSC-010, ¶ 10; see
State v. Salazar, 2007-NMSC-004, ¶¶ 11, 28, 141 N.M. 148, 152 P.3d 135 (applying the
Torres factors in an appeal in which the defendant argued that the denial of a motion to
continue the trial rendered trial counsel ineffective). Those factors include:

the length of the requested delay, the likelihood that a delay would
accomplish the movant’s objectives, the existence of previous continuances
in the same matter, the degree of inconvenience to the parties and the court,
the legitimacy of the motives in requesting the delay, the fault of the movant
in causing a need for the delay, and the prejudice to the movant in denying
the motion.

Torres, 1999-NMSC-010, ¶ 10.

{36} We first observe that the length of the requested delay was “a reasonable time” to
interview the witnesses, and Defendant did not offer a specific estimate of how much
additional time was needed to prepare for trial. Defendant did, however, indicate that the
six-month rule was set to run in mid-February. See Salazar, 2007-NMSC-004, ¶ 21
(presuming that a defendant wanted enough time to accomplish his stated goals). Defendant
also offered the trial court no indication of the steps that had already been taken to
accomplish the stated objectives or what would have been done in the future to secure
interviews or an expert. Cf. Torres, 1999-NMSC-010, ¶ 16 (concluding that the requested
delay was reasonably likely to achieve the stated objectives because the defendant had
already taken action and that future action was likely to achieve the desired result).

{37} The third and fourth Torres factors weigh the existence of previous continuances and
the inconvenience of further delay. The original trial date was set for May 16, 2005.
Defendant filed a motion to continue that setting, which was granted. In addition, two six-
month rule extensions were granted, with Defendant stipulating to at least the first extension.
Defendant’s position on the second rule extension is not in the record. Ultimately, the six-
month rule was extended until February 12, 2006. The delay between the original trial date
and the actual trial date was approximately five and a half months.

{38} On October 26, 2005, anticipating a motion by Defendant to again continue the trial,
the State filed a motion vigorously opposing an additional continuance. At the October 28,
2005 hearing, the State argued that any further delay would be prejudicial because memories
fade and because one of its experts would soon be unavailable due to an illness. The trial
court also observed that the offense and the indictment had happened “almost a year ago”
and that it was “time to get these cases on.” Although it is clear that “the trial court’s
generalized concerns about expediency are not sufficient to override [a defendant’s]
constitutional right to compulsory process,” the State opposed the continuance and
demonstrated that inconvenience would result if the time for trial was extended beyond
December, when its witness would no longer be available. Torres, 1999-NMSC-010, ¶ 17

10
(explaining that the parties would have to establish “significant or substantial
inconvenience” in order to warrant consideration as a factor).

{39} The State argues that Defendant had an illegitimate motive for moving for a
continuance. We have already commented on the quality of defense counsel’s representation
based in part on her failure to interview these witnesses. We are not persuaded by the record
that defense counsel’s motive was entirely to delay the proceedings, as the State suggests.
The need to interview witnesses and review records is manifest in this case. We do not
regard the request itself as illegitimate. The State offers no evidence or citation to the record
to establish that defense counsel’s motive was other than what was claimed—to finally act
to secure witnesses and conduct interviews.

{40} The next Torres factors evaluate whether the need for the delay was caused by
Defendant and what prejudice would result if the continuance was denied. See 1999-NMSC-
010, ¶ 10. The State argues that the fault for the delay was entirely Defendant’s: Defendant
failed to interview the State’s experts and failed to alert the court to any difficulties that she
was having in arranging for the interviews. Defendant contends that the State is partly to
blame for the failure to interview because the State promised to arrange for an interview with
one expert and failed to timely disclose two other experts. As explained above, Defendant
has an independent duty to investigate and pursue witness interviews in this case. Here, the
State bears little responsibility for the delay. Defense counsel had over eight months to
interview one witness and two and a half months to interview the remaining witnesses, and
she failed to do so. Defense counsel did not alert the trial court to any difficulties in
contacting the witnesses, and the court was unaware of any problems until three days before
trial. Based on this, we conclude that Defendant alone bears the responsibility for the need
for a continuance.

{41} Defendant claims that as a result of the trial court’s failure to grant a continuance, he
was prejudiced because he was unable to call or consult with an expert and thereby establish
his theory of the case, which we have already described. See id. (describing the final factor
as “the prejudice to the movant in denying the motion”). We agree that counsel’s failure to
call an expert or interview the State’s experts was prejudicial to his defense. Nevertheless,
weighing this factor together with the other Torres factors, we conclude that the trial court
did not abuse its discretion by denying a continuance. The case had been delayed three times
already, once at Defendant’s request and at least once with Defendant’s approval. Defendant
provided no indication of how much more time was required or how his stated objectives
would have been achieved. The State established that further delay would harm the
prosecution, and the record demonstrates that the need for the delay was rooted in Defense
counsel’s failure to arrange for interviews. Accordingly, we hold that the trial court did not
render Defendant’s counsel ineffective by denying the October 28, 2005 motion for a
continuance. We now turn to the trial court’s denial of Defendant’s motion to exclude the
late-disclosed medical records and the testimony of the late-disclosed medical experts.

b. Evidentiary Ruling

{42} In order to determine whether a ruling on late discovery requires reversal, we

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consider “(1) whether the [s]tate breached some duty or intentionally deprived the defendant
of evidence; (2) whether the improperly non-disclosed evidence was material; (3) whether
the non-disclosure of the evidence prejudiced the defendant; and (4) whether the trial court
cured the failure to timely disclose the evidence.” Duarte, 2007-NMCA-012, ¶ 15.

{43} As we have explained, defense counsel’s failure to interview the State’s experts was
not due to a breach of duty on the part of the State. The trial court specifically stated that
it “takes very seriously the [S]tate’s obligation to provide timely discovery and cooperate
in interviews.” Defendant also has not established that the State breached a duty regarding
the late-disclosed medical records. At the hearing on Defendant’s motion, the State
explained that the records were recent records, which had not previously been part of the
State’s file. The State passed the documents on to Defendant as soon as they were obtained.
The trial court pointed out that Defendant had as much access to these records as did the
State, and he could have easily obtained them. There is additionally very little indication,
apart from Defendant’s insistence, that these recent records were material to the charge. The
records pertained to Child’s condition at the time of trial and not at the time he was injured
or before the injuries.

{44} With regard to the late-disclosed witnesses, we first observe that Defendant did not
argue to the trial court that the State violated Rule 5-501(A)(5), which requires the State to
disclose witnesses within ten days of arraignment. We further fail to see how Defendant was
prejudiced by the untimely disclosure. To determine prejudice, “we look at whether the
defense’s case would have been improved by an earlier disclosure or how [the defense]
would have prepared differently for trial.” Duarte, 2007-NMCA-012, ¶ 15 (alteration in
original) (internal quotation marks and citation omitted). The State’s first expert was
disclosed on February 23, 2005. Although this disclosure is outside the time set by Rule 5-
501(A)(5), over eight months elapsed before trial commenced. The two additional experts
were disclosed on August 10, 2005, more than two months before trial.

{45} Defendant made no claim below—and makes none on appeal—that he would have
prepared differently for trial had he known of the expert witnesses earlier. In fact, the
primary difficulty in securing witness interviews was not notice, but defense counsel’s
inaction and her disagreement about whether the State or Defendant was responsible for
arranging the interviews. Given the length of time between Defendant’s receipt of notice
of the witnesses and the trial, as well as defense counsel’s supposed misapprehension about
his responsibility to arrange for interviews, we conclude that the trial court did not abuse its
discretion by failing to provide a remedy for the late disclosure.

c. Expert Testimony

{46} As an initial matter, Defendant does not argue that under Daubert or any other
authority that the State’s doctors were not qualified to testify, that the evidence of shaken
baby syndrome does not assist the trier of fact, or that the shaken baby diagnosis is not
sufficiently based on applicable factors under Rule 11-702 NMRA or Rule 11-104(A)
NMRA. Instead, Defendant challenges the timing of the evidentiary hearing and the trial
court’s conduct of the hearing on the day of trial. These arguments focus on the deficiencies

12
of the trial court and not on the deficiency or the unreliability of the medical diagnosis at
issue. Accordingly, we review Defendant’s contentions as they are presented. We do not
analyze whether the evidence of shaken baby syndrome is subject to having Daubert applied
or otherwise meets the standards for scientific reliability. See Torres, 1999-NMSC-010, ¶
43 (“[A]pplication of the Daubert factors is unwarranted in cases where expert testimony is
based solely upon experience or training.” (internal quotation marks and citation omitted)).

{47} Dr. Campbell was the State’s final witness, and two other doctors had testified earlier
in the trial. Defendant contends that at least one of these doctors, Dr. Coleman, touched on
the issue of shaken baby syndrome—although that doctor did not refer to it by name—before
the trial court had considered the scientific reliability of the diagnosis. Defendant thus
argues that by delaying the Daubert hearing, unqualified and potentially unreliable evidence
was admitted. We are unpersuaded. Irrespective of whether Daubert applies to the shaken
baby diagnosis, we see no error in delaying the hearing.

{48} First, Defendant’s argument that the trial court “improperly delayed” a hearing on
the admissibility of the shaken baby testimony is unconvincing in light of the fact that the
court was presented with the motion on the day of trial. Second, Defendant made no
objection when the trial court proposed to consider the evidentiary reliability during trial or
when Dr. Coleman gave her testimony. Third, Defendant offers no authority for the
proposition that a Daubert hearing pursuant to Rule 11-104 or Rule 11-702 must take place
at a particular time during or before the trial. See State v. King, 2007-NMCA-130, ¶ 17, 142
N.M. 699, 168 P.3d 1123 (refusing to consider arguments unsupported by authority or
analysis), cert. quashed, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d 764.

{49} Fourth, it appears from the record that although the trial court qualified Dr. Coleman
as an expert witness, the State presented her primarily as a fact witness because she was the
treating physician at the time that Child was brought to the University of New Mexico
Hospital emergency room. She testified as to the extent of all of Child’s injuries. Dr.
Campbell later connected some of these injuries to shaken baby syndrome––after the trial
court accepted the scientific foundation. Dr. Coleman, however, did not offer a shaken baby
diagnosis and we see no error in the trial court’s hearing her testimony regarding her
observation of all of Child’s injuries before considering the evidentiary reliability of the
diagnosis.

{50} Our Supreme Court has characterized the trial court’s role in the admission of expert
evidence as that of a “gatekeeper.” State v. Downey, 2008-NMSC-061, ¶ 25, 145 N.M. 232,
195 P.3d 1244. Defendant next argues that the trial court failed to fulfill its role as
gatekeeper on two grounds. According to Defendant, the trial court was insufficiently
critical of the State’s proposed expert, and further, the trial court did not genuinely inquire
into the validity of the shaken baby diagnosis. Defendant takes the position that more active
participation by the trial court was required because Defendant was prevented by the trial
court’s rulings from obtaining an expert as either a witness or a consultant and from fully
exploring the symptoms underlying a shaken baby syndrome on cross-examination of Dr.
Campbell. We disagree, primarily because Defendant’s characterizations of the trial court’s
actions are not supported by the record. As we have already concluded, the trial court did

13
not prevent Defendant from obtaining an expert—the absence of expert support was due
entirely to defense counsel’s lack of diligence. Additionally, Defendant provides no
authority for the proposition that heightened participation by the trial court is required under
certain circumstances. See King, 2007-NMCA-130, ¶ 17.

{51} Similarly, the record does not support Defendant’s argument that the trial court
prevented Defendant’s counsel from effectively cross-examining the State’s shaken baby
expert; the record demonstrates that the trial court did not prevent Defendant’s counsel from
pursuing any line of questioning during voir dire. Defendant points to an exchange between
his counsel and Dr. Campbell, in which Defendant asked, “[A]ren’t there in fact many other
causes for those kinds of conditions such as the retinal hemorrhages as opposed to just
shaking?” Dr. Campbell proceeded to outline potential alternate causes for the symptoms
that she had identified as indicators of shaken baby syndrome. Defendant followed up with
another question: “And how, how about something such as vaccines, the impact of them?”
The State objected and argued that the questions were beginning to stray afield. The trial
court permitted Defendant to continue: “I’ll let you, I’ll let you go on a little bit[.]” After
that, Defendant elicited a response to the question regarding the vaccines and continued the
examination of the expert without interruption. Although Defendant’s questions were
interrupted by an objection, the trial court permitted Defendant to continue. We thus fail to
see how the trial court’s actions prevented Defendant from conducting an effective cross-
examination of Dr. Campbell.

{52} Based on Defendant’s articulated challenges to the trial court’s admission of the
shaken baby diagnosis, we hold that the trial court did not abuse its discretion by admitting
the expert evidence.

3. Rulings and Schoonmaker

{53} Having reviewed the three rulings in light of Schoonmaker, we conclude that
Defendant failed to establish that the rulings rendered his counsel ineffective. The
presumption of prejudice is inapplicable to the facts before us, and we discern no error in the
trial court’s rulings.

III. CONCLUSION

{54} We remand this matter for an evidentiary hearing to determine whether Defendant’s
counsel was ineffective in failing to obtain or consult with an expert or in failing to interview
the State’s experts. We observe that although Defendant’s complaints regarding the motion
to mitigate and the trial court’s rulings are insufficiently developed to support a direct
appeal, he retains the right to pursue these claims via habeas review.

{55} IT IS SO ORDERED.

_____________________________________
CELIA FOY CASTILLO, Judge

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WE CONCUR:

____________________________________
RODERICK T. KENNEDY, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Aragon, No. 27,615

AE APPEAL AND ERROR
AE-PJ Prejudicial Error
AE-RM Remand

AT ATTORNEYS
AT-EA Effective Assistance of Counsel

CL CRIMINAL LAW
CL-CN Child Abuse and Neglect

CA CRIMINAL PROCEDURE
CA-ES Enhancement of Sentence
CA-EX Expert Witness

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