State v. Quinones

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 13:08:06 2011.04.27
Certiorari Denied, January 19, 2011, No. 32,774

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-018

Filing Date: November 22, 2010

Docket No. 28,607

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ELIZAR URRUTIA QUIÑONES,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas R. Driggers, District Judge

Gary K. King, Attorney General
Nicole Beder, Assistant Attorney General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Will O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

FRY, Chief Judge.

{1} Defendant appeals his felony convictions for one count of intentional child abuse
resulting in death and two counts of intentional child abuse resulting in great bodily harm,
contrary to NMSA 1978, Section 30-6-1(D) (2004) (amended 2005 and 2009). We conclude
that: (1) the district court properly denied Defendant’s motion to suppress an incriminating
statement he made to detectives, (2) the district court did not abuse its discretion on two

1
evidentiary rulings, (3) Defendant has not established a prima facie case for ineffective
assistance of counsel, (4) there was substantial evidence supporting Defendant’s convictions
for intentional child abuse, and (5) there was no cumulative error. We therefore affirm.

BACKGROUND

{2} Defendant’s convictions stem from the death of his daughter, Diana, following an
incident that arose on January 11, 2005, when Diana was approximately six weeks old.
Defendant was allegedly changing Diana’s diaper after having fed her when he noticed that
she was unresponsive and had stopped breathing. Emergency personnel responded to
Defendant’s 911 call, and Diana was later air-lifted to a hospital in Albuquerque, New
Mexico, where her treating physicians concluded that she was brain dead after having
suffered extensive brain injuries. Diana’s other injuries included bucket-handle fractures of
both femurs and several rib fractures, which her physicians determined were older injuries
at various stages of healing. Diana died four days later as a result of her brain injuries. The
State’s experts opined at trial that Diana was a victim of shaken baby syndrome and that her
injuries were the result of child abuse.

{3} On January 12, 2005, while Diana was still being treated at the hospital, detectives
questioned Defendant and his wife regarding Diana’s injuries, and Defendant stated that he
had previously injured Diana on three separate occasions. Shortly thereafter, Defendant was
arrested and indicted on three counts of intentional child abuse, contrary to Section 30-6-
1(D). Defendant was tried twice; his first trial resulted in a mistrial after the jury was unable
to agree on a verdict on all three counts. At his second trial, Defendant was convicted on all
counts. Pursuant to New Mexico’s habitual offender statute, NMSA 1978, Section 31-18-17
(2003), the district court sentenced Defendant to a total of 27 years in prison followed by two
years’ parole. This appeal followed.

DISCUSSION

{4} Defendant raises six issues on appeal. He argues that: (1) the district court erred in
refusing to suppress Defendant’s incriminating statement, (2) the district court erred in
denying Defendant an opportunity to elicit testimony that his interrogator did not supply
Defendant with an attorney during his interrogation, (3) the district court erred in denying
Defendant an opportunity to elicit testimony at trial about his non-violent character, (4)
Defendant was denied effective assistance of counsel because his attorney failed to consult
with or retain a defense expert on shaken baby syndrome, (5) there was insufficient evidence
to support Defendant’s convictions, and (6) cumulative error deprived Defendant of a fair
trial. We address each issue in turn below.

1. Suppression of Defendant’s Incriminating Statement

{5} Defendant first contends that the district court erred in denying his motion to
suppress the incriminating statement he made during the second of his two encounters with

2
Detective Sheila Cunningham on the evening of January 12, 2005. Specifically, Defendant
argues that his statement should have been suppressed for three reasons: (1) he did not
knowingly and intelligently waive his previously invoked Fifth Amendment right to counsel
before he gave the incriminating statement during his second encounter, (2) his statement
was involuntarily given, and (3) the New Mexico Constitution requires that interrogators
supply an attorney once a defendant has invoked his right to counsel.

{6} We begin by stating the facts surrounding the events of Defendant’s interrogation.
It is undisputed that at the request of Detective Cunningham, Defendant and his wife
accompanied Detectives Cunningham and Larry Tafoya from the hospital to the police
station on the evening of January 12, 2005. Defendant and his wife were placed in separate
interview rooms, and Defendant was questioned by Detective Cunningham. Before the
questioning began, Defendant was given Miranda warnings in full, and he signed a waiver
of rights form. After Detective Cunningham had questioned Defendant for some time
regarding the serious nature of Diana’s injuries and the events preceding Defendant’s 911
call, Defendant unequivocally asserted his right to counsel. At this point, Detective
Cunningham ceased the interrogation and left the room.

{7} After being left alone in the interview room for approximately one hour, Defendant
knocked on the door and asked to speak with Detective Cunningham again because he
wanted to “take the blame for it.” When Detective Cunningham re-entered the room,
Defendant informed her that he had changed his mind about wanting an attorney because of
his wife and because he was tired. He then proceeded to incriminate himself, stating that:
(1) two days earlier, he had squeezed Diana’s head “hard enough to hurt her”; (2) two weeks
earlier, he had held Diana tightly and squeezed hard enough to break her ribs; and (3) some
time ago, he held Diana’s legs too tightly while changing her diaper and then heard her legs
pop. Before his first trial, Defendant filed a motion to suppress this incriminating statement,
which the district court denied.

{8} A ruling on a motion to suppress evidence presents a mixed question of law and fact.
State v. Garcia, 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116 P.3d 72. On appeal, we “review[]
factual findings under a substantial evidence standard, viewing the facts in the light most
favorable to the prevailing party, and we review de novo whether the district court correctly
applied the law to the facts.” State v. Slayton, 2009-NMSC-054, ¶ 11, 147 N.M. 340, 223
P.3d 337. Whether a defendant has validly waived his/her previously invoked right to
counsel and whether a confession is voluntarily given are legal determinations that we
review de novo on appeal. See State v. Barrera, 2001-NMSC-014, ¶ 23, 130 N.M. 227, 22
P.3d 1177 (applying de novo review to whether the defendant waived his Miranda rights);
State v. Salazar, 1997-NMSC-044, ¶ 59, 123 N.M. 778, 945 P.2d 996 (applying de novo
review to whether a confession is voluntary).

{9} Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), in order to protect a
defendant’s right against self-incrimination, interrogators are required to inform a suspect,
before beginning questioning: (1) of the right to remain silent, (2) of the prospect that any

3
statement made may be used as evidence against him/her, and (3) of the right to an attorney
during an interrogation. Id. at 444. However, any of these rights may be waived, “provided
[that] the waiver is made voluntarily, knowingly and intelligently.” Id. When a defendant
moves to suppress statements allegedly made in violation of Miranda, “the [s]tate bears the
burden of demonstrating by a preponderance of the evidence that the defendant” made a
voluntary, knowing, and intelligent waiver. State v. Martinez, 1999-NMSC-018, ¶ 14, 127
N.M. 207, 979 P.2d 718. In doing so, “[t]he [s]tate must demonstrate that the waiver of
rights was the product of a free and deliberate choice rather than intimidation, coercion, or
deception” and also must show that the waiver “was made with a full awareness of both the
nature of the right being abandoned and the consequences of the decision to abandon it.”
Id. (internal quotation marks and citation omitted). We review whether such a waiver was
made by evaluating “the totality of the circumstances and the particular facts, including
consideration of the mental and physical condition, background, experience, and conduct of
the accused, as well as the conduct of the police.” Id. (internal quotation marks and citation
omitted). Additionally, we must indulge every reasonable presumption against waiver. Id.

a. Defendant’s Waiver of Previously Invoked Right to Counsel

{10} Defendant argues that he did not waive his previously invoked Miranda right to
counsel due to the “circumstances of [his] confinement” and the fact that the State did not
“actually produc[e] an attorney” after he invoked his right to counsel during the first
encounter with Detective Cunningham. In Edwards v. Arizona, 451 U.S. 477, 484 (1981),
the United States Supreme Court established the general rule regarding further questioning
after an accused has asserted his Fifth Amendment right to counsel. “[W]hen an accused has
invoked his right to have counsel present during [a] custodial interrogation, a valid waiver
of that right cannot be established by showing only that he responded to further
police-initiated custodial interrogation even if he has been advised of his rights.” Id. at 484;
see State v. Bailey, 2008-NMCA-084, ¶ 9, 144 N.M. 279, 186 P.3d 908. The Court held that
an accused, “having expressed his desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel has been made available to
him, unless the accused himself initiates further communication, exchanges, or
conversations with the police.” Edwards, 451 U.S. at 484-85 (emphasis added). The Court
went on to note that “a valid waiver of an accused’s previously invoked Fifth Amendment
right to counsel is possible” if the “waiver was knowing and intelligent . . . under the totality
of the circumstances, including the necessary fact that the accused, not the police, reopened
the dialogue with the authorities.” Id. at 486, n.9; see State v. Boeglin, 100 N.M. 127, 131-
32, 666 P.2d 1274, 1278-79 (Ct. App. 1983); see also State v. Post, 109 N.M. 177, 179-80,
783 P.2d 487, 489-90 (Ct. App. 1989).

{11} In the present case, Defendant does not dispute that Detective Cunningham stopped
questioning him and left the interrogation room after he invoked his right to counsel and that
sometime later, Defendant knocked on the door to the interrogation room and asked to speak
with her again. Under Edwards, we conclude that Defendant himself re-initiated contact
with Detective Cunningham and expressed his desire to speak with her again. We also note

4
that both Detective Kennedy, who was observing Defendant from outside the interview
room, and Detective Cunningham reminded Defendant that he had invoked his right to
counsel. Despite this reminder, Defendant voluntarily continued his second encounter with
Detective Cunningham. We see nothing in the circumstances of Defendant’s confinement
indicating that Defendant’s re-initiation of police contact was the result of any official
coercion or pressure. Therefore, we conclude that Defendant willingly and freely made a
choice to waive his previously invoked right to counsel. See Salazar, 1997-NMSC-044,
¶¶ 10, 63 (holding that the defendant knowingly and intelligently waived his previously
invoked right to counsel when he re-initiated contact with the police by asking them to return
to his hospital room so he could “tell his side of the story” and by not objecting when the
police actually returned to the room and again advised him of his Miranda rights (internal
quotation marks omitted)); cf. Post, 109 N.M. at 179-80, 783 P.2d at 489-90 (holding that
the defendant’s incriminating statement should have been suppressed because detectives
continued questioning the defendant after he invoked his right to counsel and without any
re-initiation of contact by the defendant).

{12} Defendant next argues that his incriminating statement should have been suppressed
because Detective Cunningham failed to re-read him Miranda warnings when she re-entered
the interview room at his request. Defendant relies on State v. Greene, 91 N.M. 207, 572
P.2d 935 (1977), and Salazar in asserting that officers are required to provide new and
adequate Miranda warnings when a suspect initiates contact with officers after having
previously invoked his/her right to counsel. Although we recognize that in certain
circumstances officers have re-Mirandized suspects during subsequent interrogations, this
Court has never adopted a per se rule requiring officers to do so. See State v. Gilbert, 98
N.M. 530, 533, 650 P.2d 814, 818 (1982) (stating that “[a] confession is not necessarily
invalid because warnings as to the right to remain silent and to counsel were not given in full
each time the interrogation process was resumed after interruption”). Instead, we believe
the critical inquiry is whether a suspect is still aware of the rights afforded to him under
Miranda when he resumes contact with officers. This can occur even in the absence of a
new set of Miranda warnings. See id. (concluding that a new set of Miranda warnings was
not required at the start of a second encounter between the defendant and officers where
Miranda warnings had been read a few hours earlier to the defendant on an unrelated charge
and the defendant had once before invoked his right to counsel and officers had complied).

{13} We conclude that Defendant was still aware of his constitutional rights under
Miranda when he re-initiated contact with Detective Cunningham. Only a few hours had
passed from the time Defendant was first read his Miranda rights and his second encounter.
He was given complete Miranda warnings at the start of his first encounter with Detective
Cunningham, and at that time, he verbally indicated that he understood what his rights were
and then he signed the initial waiver of rights form. More importantly, he had previously
invoked his right to counsel and was aware that Detective Cunningham had honored his
request by immediately ceasing the first interrogation. See Salazar, 1997-NMSC-044, ¶¶ 10,
61 (determining that the defendant understood what his Miranda rights were because he had
previously successfully invoked his right to counsel during an earlier encounter with law

5
enforcement). In addition, the detectives reminded Defendant that he had previously
invoked his right to counsel before they allowed him to voluntarily continue with any further
statements.

b. Voluntariness of Statement

{14} Defendant also challenges the State’s proof of the voluntariness of his statement. We
stated the general rule regarding voluntariness of a confession in State v. Lobato, 2006-
NMCA-051, ¶ 9, 139 N.M. 431, 134 P.3d 122.

A confession is involuntary only if official coercion has occurred. Official
coercion occurs when a defendant’s will has been overborne and his capacity
for self-determination [has been] critically impaired. If, however, the
confession is the product of an essentially free and unconstrained choice by
its maker, it may be used against the defendant without offending due
process. On appeal, we review the totality of the circumstances to determine
as a threshold matter of law whether the [s]tate has proved by a
preponderance of the evidence that [the d]efendant’s confession was
voluntary.

Id. (first alteration in original) (internal quotation marks and citations omitted).

{15} Defendant contends that his confession was not voluntarily given because he was
held in isolation for one-and-a-half hours, separated from his wife and not allowed to
communicate with her, and because he was told that “his fate . . . depended [on]
communications with the police in Las Cruces.” We are not persuaded. Defendant fails to
provide record support for the length of time he was allegedly held in isolation. See State
v. Garcia, 2009-NMCA-107, ¶ 23, 147 N.M. 150, 217 P.3d 1048 (stating that we do not
consider arguments if the defendant fails to cite record support). We note that during the
time interval between both encounters, Defendant was able to leave the interview room to
use the restroom, and he twice asked for and received status updates from Detective
Kennedy. As for the inability to communicate with his wife, Detective Kennedy testified
that Defendant and his wife shouted back and forth between their respective interview rooms
and that they could hear each other. Finally, Defendant does not demonstrate that any threats
or coercive activity occurred on the part of Detectives Cunningham and Kennedy when they
informed him that Las Cruces police would make the next decision regarding his interview
after he invoked his right to counsel. We note that Defendant was aware from the beginning
of his interview that the Las Cruces police department was involved and had made the initial
request that Detective Cunningham interview Defendant while he was in Albuquerque.
Consequently, because none of the interview circumstances that Defendant refers to
demonstrate official coercion, we conclude that Defendant’s statement was voluntarily
given. See State v. Muñoz, 1998-NMSC-048, ¶ 23, 126 N.M. 535, 972 P.2d 847 (explaining
that this Court “determine[s] as a threshold matter of law that the prosecution proved
voluntariness by a preponderance of the evidence”).

6
c. State Constitution

{16} Defendant also argues that the New Mexico Constitution affords him greater
protection than the federal constitution. Specifically, Defendant argues that under the New
Mexico Constitution, interrogators have an obligation to “supply an attorney” once a
defendant has invoked his Fifth Amendment right to counsel. As Defendant acknowledges,
no such obligation exists under federal law. See, e.g., Miranda, 384 U.S. at 474 (“If the
individual states that he wants an attorney, the interrogation must cease until an attorney is
present. At that time, the individual must have an opportunity to confer with the attorney
and to have him present during any subsequent questioning. . . . This does not mean, as
some have suggested, that each police station must have a ‘station house lawyer’ present at
all times to advise prisoners”); see also Edwards, 451 U.S. at 482, 485 (reiterating that
officers have an obligation to cease an interrogation once a suspect invokes his right to have
counsel present during custodial interrogation).

{17} “Under our interstitial approach to interpreting the New Mexico Constitution, we
may diverge from federal precedent where the federal analysis is flawed, where there are
structural differences between the state and federal governments, or because of distinctive
New Mexico characteristics.” State v. Garcia, 2009-NMSC-046, ¶ 27, 147 N.M. 134, 217
P.3d 1032. We conclude that Defendant has not presented any arguments on appeal that are
directed toward any of these three procedural reasons. Though Defendant makes a blanket
assertion that federal law on this issue “does not go far enough in protecting a suspect’s right
to due process of law,” he provides us with no specific argument as to why the existing
federal analysis is flawed. Defendant also does not argue that there are any structural
differences between our state and the federal government or that distinctive New Mexico
characteristics would militate in favor of greater protections under our state constitution.

{18} To the extent that Defendant cites existing New Mexico precedent on this issue, we
remain unpersuaded because neither State v. Rascon, 89 N.M. 254, 550 P.2d 266 (1976),
State v. Foster, 1998-NMCA-163, 126 N.M. 177, 967 P.2d 852, nor State v. Seward, 104
N.M. 548, 724 P.2d 756 (Ct. App. 1986), held that the New Mexico Constitution’s
counterpart to the fifth amendment of the federal constitution affords greater protection to
suspects who invoke a right to counsel during an interrogation. See Rascon, 89 N.M. at 258,
260, 550 P.2d at 270, 272 (holding that the New Mexico’s Public Defender Act, NMSA
1978, Sections 31-15-1 to -12 (1973, as amended through 2001), does not create a statutory
extension or expansion of a detained individual’s constitutional right to counsel under either
the federal or New Mexico Constitutions and also stating, in relevant part, that a suspect’s
fifth amendment rights during an interrogation are not greater under the parallel provision
of the New Mexico Constitution); see also Foster, 1998-NMCA-163, ¶¶ 13-19 (holding that
evidence of a defendant’s failure to mention in initial police interviews the threats made on
the day of the shooting had significant probative value as impeachment, was admissible as
a matter of New Mexico evidentiary law, and such impeachment did not deny the defendant
due process under Miranda); Seward, 104 N.M. at 554, 724 P.2d at 762 (holding that the
New Mexico’s Public Defender Act and the Indigent Defense Act, NMSA 1978, Sections

7
31-16-1 to -10 (1968, as amended through 1973), establish only mechanisms for indigents
to obtain counsel in criminal proceedings and that “[i]t is not within the [L]egislature’s
purview to establish or regulate constitutional or judicial procedural rights [to counsel]
through these Acts”). Accordingly, Defendant has not persuaded us that we have any basis
to depart from existing federal law.

2. District Court’s Evidentiary Rulings

{19} Defendant next challenges two of the district court’s evidentiary rulings, arguing that
the district court erred in: (1) refusing to allow Defendant to ask Detective Cunningham
whether she supplied Defendant with an attorney during the interrogation; and (2) denying
Defendant an opportunity to elicit testimony from his relatives regarding his non-violent
character. “Generally speaking, a reviewing court defers to the [district] court’s decision to
admit or exclude evidence and will not reverse unless there has been an abuse of discretion.
However, our review of the application of the law to the facts is conducted de novo.” State
v. Martinez, 2008-NMSC-060, ¶ 10, 145 N.M. 220, 195 P.3d 1232 (internal quotation marks
and citation omitted). “We cannot say the [district] court abused its discretion by its ruling
unless we can characterize it as clearly untenable or not justified by reason.” State v. Rojo,
1999-NMSC-001, ¶ 41, 126 N.M. 438, 971 P.2d 829 (internal quotation marks and citation
omitted).

a. Detective Cunningham’s Testimony

{20} Defendant first contends that the district court abused its discretion when it refused
to allow him to ask Detective Cunningham during cross-examination whether she “ma[de]
an attorney available to him” following his request for counsel during the interrogation.
Defendant argues that he should have been allowed to pursue this line of questioning with
Detective Cunningham because it was relevant to the issue of the voluntariness of
Defendant’s incriminating statement. At trial, the district court told defense counsel that he
could inquire about the voluntariness of the statement, but that asking Detective Cunningham
whether she made an attorney available to Defendant was “the same thing as implying they
[i.e., police officers] ha[d] a duty to make a lawyer available to [Defendant].”

{21} We agree with Defendant that the voluntariness of his incriminating statement was
at issue. However, to the extent that we understand Defendant’s argument, we are not
persuaded that the district court abused its discretion on this evidentiary ruling. The district
court understood the law with respect to an officer’s duties during an interrogation and the
law regarding the voluntariness of a statement obtained after a defendant has waived his
right to counsel. Cf. State v. Elinski, 1997-NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209
(stating that a trial court abuses its discretion when it exercises its discretion based on a
misunderstanding of the law). The State is not obligated to furnish counsel when, as
happened in this case, officers cease an interrogation because a defendant has asserted his
fifth amendment right to counsel. See Rascon, 89 N.M. at 258, 550 P.2d at 270 (stating that
if a defendant asserts his right to counsel during an interrogation, officers “may elect to

8
question the suspect no further, in which event the [s]tate is under no obligation to provide
counsel at that point in response to fifth amendment rights”). Thus, we conclude the district
court correctly applied the law to the facts when it sustained the State’s objection to defense
counsel’s question to Detective Cunningham.

b. Character Evidence

{22} Defendant also claims that the district court abused its discretion when it refused to
allow him to elicit testimony from his family members about his non-violent character.
Specifically, Defendant argues that the district court erred when it refused to allow defense
counsel to ask one of the defense witnesses whether she knew if Defendant had “ever act[ed]
violently towards anyone.” The State argues that Defendant failed to preserve this issue for
appeal because defense counsel withdrew the question after the State’s objection to the
question and later, defense counsel approved the district court’s limiting instruction on the
question.

{23} In order to preserve an issue for appeal, Defendant must make a timely objection that
specifically apprises the district court of the nature of the claimed error and invokes an
intelligent ruling thereon. State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d
1280. “Both the district court and the [s]tate must be alerted to the specific claim of error
in order to allow the [s]tate a fair opportunity to respond, to show the district court why it
should not rule in [the d]efendant’s favor, and to allow the district court the opportunity to
correct any mistake.” State v. Maez, 2009-NMCA-108, ¶ 14, 147 N.M. 91, 217 P.3d 104.
Preservation serves the purposes of (1) allowing the trial court an opportunity to correct any
errors, thereby avoiding the need for appeal; and (2) creating a record from which this Court
can make informed decisions. See, e.g., Diversey Corp. v. Chem-Source Corp.,
1998-NMCA-112, ¶ 38, 125 N.M. 748, 965 P.2d 332.

{24} On this issue, Defendant’s brief refers to events from the first trial. Our review of
the record on this issue, however, is limited only to the testimony from Defendant’s second
trial, which is the trial that resulted in his convictions. The transcript of the second trial
reveals that immediately after defense counsel asked Defendant’s sister-in-law whether
Defendant had ever acted violently toward anyone, the State objected to the question on
relevancy grounds. The following exchange then took place between the parties and the
district court:

[C]ourt: [To defense counsel:] [W]hat’s the relevancy of that question?
[Defense]: Propensity for violence.
[State]: May we approach?
[Defense]: Withdraw[n].
[C]ourt: Objection sustained.

Defense counsel then abandoned this line of questioning. Because Defendant withdrew his
question without alerting the district court and the State to any argument that the question

9
would have elicited proper character evidence under Rule 11-404(A)(1) NMRA, Defendant
failed to provide the district court with a factual or legal basis on which to make an informed
ruling that we can review on appeal. State v. Frazier, 2007-NMSC-032, ¶ 38, 142 N.M. 120,
164 P.3d 1 (“A party cannot rely on a withdrawn objection to preserve error.” (alteration
omitted) (internal quotation marks and citation omitted)).

{25} In addition, after defense counsel finished questioning the defense witness, the State
asked for a limiting instruction on the withdrawn question. Again, defense counsel did not
raise any objection to the State’s request, and he affirmatively stated that he agreed with the
district court’s proposed limiting instruction. Cordova v. Taos Ski Valley, Inc., 121 N.M.
258, 263, 910 P.2d 334, 339 (Ct. App. 1995) (“A party who has contributed, at least in part,
to perceived shortcomings in a [district] court’s ruling should hardly be heard to complain
about those shortcomings on appeal.”).

{26} Because we conclude that the issue was not preserved for appeal, we decline to
address the parties’ arguments as to the merits of Defendant’s attempt to elicit character
evidence on his non-violent nature pursuant to Rule 11-404 and Rule 11-405 NMRA.

3. Ineffective Assistance of Counsel

{27} Defendant argues that he was denied effective assistance of counsel because his trial
attorney failed to consult with, retain, or present the testimony of an expert witness on
shaken baby syndrome. Defendant contends that the “results of th[e] trial would likely have
been different if defense counsel had called or consulted with an expert” and accordingly,
he seeks reversal of his convictions or, in the alternative, remand to the district court for an
evidentiary hearing on defense counsel’s effectiveness.

{28} We review claims of ineffective assistance of counsel de novo. State v. Boergadine,
2005-NMCA-028, ¶ 33, 137 N.M. 92, 107 P.3d 532. “To establish a prima facie case of
ineffective assistance of counsel, [the d]efendant must show that (1) counsel’s performance
was deficient in that it fell below an objective standard of reasonableness; and (2) that [the
d]efendant suffered prejudice in that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” State v. Aker,
2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384 (internal quotation marks and citation
omitted).

{29} To show deficient performance, Defendant must overcome the presumption that
counsel’s conduct was within “the wide range of reasonable professional assistance.” State
v. Dylan J., 2009-NMCA-027, ¶ 37, 145 N.M. 719, 204 P.3d 44 (internal quotation marks
and citation omitted). If we “can conceive of a reasonable trial tactic which would explain
the counsel’s performance, we [should] not find ineffective assistance.” Id. ¶ 39 (internal
quotation marks and citation omitted).

10
{30} A defendant must also affirmatively prove prejudice. See State v. Dietrich, 2009-
NMCA-031, ¶ 84, 145 N.M. 733, 204 P.3d 748, cert. denied, 2009-NMCERT-002, 145 N.M.
704, 204 P.3d 29. “[M]ere evidentiary prejudice is not enough. Counsel’s deficient
performance must represent so serious a failure of the adversarial process that it undermines
judicial confidence in the accuracy and reliability of the outcome.” State v. Roybal, 2002-
NMSC-027, ¶ 25, 132 N.M. 657, 54 P.3d 61.

{31} If a prima facie showing of ineffective assistance is made, the Court may remand the
case for an evidentiary hearing if unusual circumstances exist. Dylan J., 2009-NMCA-027,
¶ 41. Our Supreme Court has expressed a preference for ineffective assistance of counsel
claims to be heard in habeas corpus proceedings when the trial record does not contain
sufficient evidence to allow for such a determination on direct appeal. Id.

{32} Defendant argues that because expert testimony is an essential component of cases
involving shaken baby syndrome, his attorney’s failure to consult with or present a defense
expert at trial prevented him from challenging the State’s theory of the case. Defendant
asserts that a defense expert could have countered the State’s assertions that Defendant
inflicted the injuries to his daughter, that the injuries were sustained immediately, and that
the injuries were indicative of shaken baby syndrome. Defendant acknowledges, however,
that the record reveals only that his trial attorney did not present expert testimony at trial but
does not “disclose what efforts, if any, counsel made behind the scenes” with respect to
consulting with or retaining a defense expert.

{33} We agree with Defendant’s characterization of the trial record and conclude that the
evidence before us is not sufficient to allow us to determine whether defense counsel’s
performance was deficient, and if so, whether Defendant was prejudiced as a result. On the
basis of the record before us, we are not persuaded that Defendant has established a prima
facie case of ineffectiveness. We cannot state with certainty that Defendant’s trial counsel
did not retain or consult with a medical expert on shaken baby syndrome. Although the
record indicates that at some point during the pre-trial proceedings, defense counsel made
unsuccessful attempts to interview and consult with experts, it is unclear whether
Defendant’s attorney had subsequent success in this endeavor. There is also no information
in the record regarding defense counsel’s efforts with respect to any potential defense
experts during the time period between the first and second trials. On this record, we will
not speculate as to what happened behind the scenes with respect to defense counsel’s
decisions regarding potential defense experts. See Dylan J., 2009-NMCA-027, ¶ 40 (“We
are reluctant to attempt to decide the issue [of trial counsel’s effectiveness] when we do not
have before us all of the facts needed for an informed decision.”).

{34} We note that our Supreme Court has “expressly rejected the contention that the
failure to introduce the testimony of an expert witness constitutes ineffective assistance of
counsel per se.” Lytle v. Jordan, 2001-NMSC-016, ¶ 44, 130 N.M. 198, 22 P.3d 666. We
have generally required a defendant to show that a defense expert was actually available to
testify in support of the defense’s theory at trial. See State v. Aragon, 2009-NMCA-102, ¶

11
20, 147 N.M. 26, 216 P.3d 276 (“[W]e have required a defendant to show that an expert
would have been—not could have been—available to testify at trial [for a prima facie case
of ineffectiveness].”). Apart from Defendant’s appellate counsel’s conjectures regarding
what a defense expert could have testified to in this case, there is nothing in the record to
indicate that a defense expert was actually available to testify in support of Defendant at trial
and what the content of the expert’s testimony would have been. See State v. Crain, 1997-
NMCA-101, ¶ 33, 124 N.M. 84, 946 P.2d 1095 (concluding that the defendant had not made
a prima facie case because the record failed to establish that a defense expert was available
to testify in support of the defendant’s theory of the case).

{35} Defendant’s reliance on Aragon is misplaced because that case is factually
distinguishable from the factual record in this case. In Aragon, we concluded that the
defendant in a child abuse case had demonstrated a prima facie case of ineffectiveness due
to his trial counsel’s “failure to engage an expert for consultation, combined with her failure
to conduct adequate pre-trial interviews of the [s]tate’s experts.” 2009-NMCA-102, ¶ 15.
Here, we are not certain that Defendant’s trial counsel did not consult with an expert or
conduct pre-trial interviews. Moreover, in Aragon, we concluded that expert testimony was
the “crux” of the case. Id. ¶ 12. In this case, however, the State did not rely exclusively on
expert testimony to form the basis of its case; it also had Defendant’s incriminating
statements and Diana’s autopsy results that it presented to the jury. Finally, in Aragon, there
was evidence that the defense theory had some support within the medical community,
thereby establishing that an expert could have been available to bolster the defense’s case.
Id. ¶ 20. In this case, there is no indication in the evidence from either trial that there was
any medical evidence supporting Defendant’s theories of the case.

{36} Thus, we conclude that Defendant has not demonstrated a prima facie case of
ineffectiveness. We clarify, however, that our determination does not preclude Defendant
from pursuing these arguments in a collateral proceeding for habeas corpus relief, where he
can develop a proper record. See State v. Bernal, 2006-NMSC-050, ¶ 36, 140 N.M. 644, 146
P.3d 289.

4. Sufficiency of the Evidence

{37} We next address Defendant’s contention that there was insufficient evidence
presented at trial to support his convictions for intentional child abuse. “In reviewing the
sufficiency of the evidence, we must view the evidence in the light most favorable to the
guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence
in favor of the verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998
P.2d 176. The relevant inquiry is “whether direct or circumstantial substantial evidence
exists and supports a verdict of guilt beyond a reasonable doubt with respect to every
element essential for conviction. We determine whether a rational fact[]finder could have
found that each element of the crime was established beyond a reasonable doubt.” State v.
Kent, 2006-NMCA-134, ¶ 10, 140 N.M. 606, 145 P.3d 86 (citations omitted).

12
{38} The sufficiency of the evidence is assessed against the jury instructions because they
become the law of the case. State v. Smith, 104 N.M. 729, 730, 726 P.2d 883, 884 (Ct. App.
1986). In order for the jury to find Defendant guilty of count one, child abuse resulting in
death or great bodily harm, the jury was required to find the following elements beyond a
reasonable doubt: (1) Defendant caused Diana to be placed in a situation which endangered
Diana’s life or health, or Defendant tortured or cruelly punished Diana; (2) Defendant acted
intentionally or with reckless disregard; (3) Defendant’s actions or failure to act resulted in
Diana’s death; (4) Diana was under the age of 18; and (5) this happened in New Mexico on
or about January 11, 2005. In order to find Defendant guilty of counts two and three, child
abuse which did not result in death or great bodily harm, the jury was required to find the
following elements beyond a reasonable doubt: (1) Defendant caused Diana to be placed in
a situation which endangered her life or health, or Defendant tortured or cruelly punished
Diana by causing her femurs to be fractured [count 2] or by causing her ribs to be fractured
[count 3]; (2) Defendant acted intentionally or with reckless disregard; (3) Diana was under
the age of 18; and (4) this happened in New Mexico on or between December 4, 2004, and
January 10, 2005.

{39} We conclude that there was sufficient evidence to support the jury’s verdict as to all
three counts. Defendant’s wife testified at trial that Defendant was the last person with
Diana before Diana stopped responding and went into respiratory distress on the evening of
January 11, 2005. The State presented extensive medical testimony from Diana’s treating
physicians as to the nature of her injuries after she was transported by emergency personnel
to the hospital. Dr. Crowley, Diana’s treating physician, testified that Diana’s injuries
included a traumatic brain injury, rib fractures, and bucket-handle fractures of both of her
femurs; that her rib and femur fractures were at different stages of healing; and that she
stopped breathing within minutes of suffering the traumatic brain injury. Dr. Crowley
testified that Diana’s injuries were consistent with child abuse. Additionally, the State
presented Diana’s autopsy results, which had concluded that the manner of Diana’s death
was homicide and that Diana had suffered a rapid acceleration-deceleration injury consistent
with “shaken impact syndrome.” Dr. Paul, the pathologist who performed Diana’s autopsy,
opined that Diana “died of multiple blunt force injuries, . . . head injuries, rib fractures, and
femur fractures as a result of child abuse.” The State also presented photographic evidence
of Diana’s injuries. Moreover, the State presented the testimony of Detective Cunningham,
who testified regarding the incriminating statements Defendant made during his
interrogation. Defendant told Detective Cunningham that he had picked Diana up and
squeezed her “[h]ard enough to hurt her” a couple of weeks before she died. He admitted
to pulling Diana’s legs while changing her diaper and hearing them pop a few weeks before
her death. He also admitted that he had squeezed Diana’s head on the morning of January
11. Viewing the evidence in the light most favorable to the verdicts, we conclude that a
reasonable jury could have found that Defendant committed intentional child abuse.

{40} On appeal, Defendant re-asserts his innocence and contends that the State’s own
experts testified that Defendant’s acts of squeezing Diana while hugging her and squeezing
her head did not cause her fatal injuries. However, “[o]n appeal, we will not reweigh the

13
evidence nor substitute our judgment for that of the fact[]finder provided that there is
sufficient evidence to support the verdict.” State v. Collins, 2007-NMCA-106, ¶ 29, 142
N.M. 419, 166 P.3d 480. The jury was free to disregard the allegedly contrary expert
testimony that Defendant claims supports his innocence. Rojo, 1999-NMSC-001, ¶ 19
(“Contrary evidence supporting acquittal does not provide a basis for reversal because the
jury is free to reject [the d]efendant’s version of the facts.”).

5. Cumulative Error

{41} Lastly, Defendant argues that cumulative error deprived him of a fair trial. The
cumulative error doctrine calls for reversal of a conviction “when the cumulative impact of
the errors that occurred at trial was so prejudicial that the defendant was deprived of a fair
trial.” See Bailey, 2008-NMCA-084, ¶ 26 (alteration omitted). The cumulative error
doctrine is strictly applied and may not be successfully invoked if the record as a whole
demonstrates that the defendant received a fair trial. State v. Trujillo, 2002-NMSC-005, ¶
63, 131 N.M. 709, 42 P.3d 814. When we find that no error occurred, “there is no cumulative
error.” State v. Aragon, 1999-NMCA-060, ¶ 19, 127 N.M. 393, 981 P.2d 1211. Because we
have rejected Defendant’s assertions of error in the proceedings before the district court, we
conclude that the doctrine of cumulative error does not apply in the present case.

CONCLUSION

{42} For the foregoing reasons, we affirm Defendant’s convictions.

{43} IT IS SO ORDERED.

____________________________________
CYNTHIA A. FRY, Chief Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State v. Quinones, Docket No. 28,607

AE APPEAL AND ERROR
AE-CE Cumulative Error
AE-SB Substantial or Sufficient Evidence

AT ATTORNEYS

14
AT-EA Effective Assistance of Counsel

CT CONSTITUTIONAL LAW
CT-MW Miranda Warnings
CT-NM New Mexico Constitution, General
CT-SL Self-incrimination
CT-SU Suppression of Evidence

CL CRIMINAL LAW
CL-CN Child Abuse and Neglect

CA CRIMINAL PROCEDURE
CA-CF Confession
CA-CE Cumulative Error
CA-EA Effective Assistance of Counsel
CA-EX Expert Witness
CA-MW Miranda Warnings
CA-ML Motion in Limine
CA-MR Motion to Suppress
CA-RA Right Against Self-incrimination
CA-SI Self-incrimination
CA-SE Substantial or Sufficient Evidence

EV EVIDENCE
EV-CE Character Evidence

15