(concurring in part and dissenting in part).
I do not agree with the majority opinion’s determination that Defendant was not entitled to the lesser-included-offense instruction of CSP III. I believe there was evidence presented at trial tending to establish that the sexual offenses were committed without the use of a gun which entitled Defendant to a CSP III instruction for each of the CSP II counts submitted to the jury. In addition, I do not agree that defense counsel’s failure to object to the prosecutor’s seemingly discriminatory use of peremptory challenges during jury selection did not amount to a prima facie case of ineffective assistance of counsel. Because I would reverse on the jury instruction issue or remand for a Batson hearing on the jury selection issue, I dissent. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). I concur, however, in the dispositions of the remaining trial and sentencing issues.
A. LESSER-INCLUDED-OFFENSE INSTRUCTION
As the majority opinion states, a defendant is entitled to a lesser-included-offense instruction if there is some view of the evidence tending to establish the lesser offense as the highest degree of the crime committed. State v. Fish, 102 N.M. 775, 779, 701 P.2d 374, 378 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). The difference between the two degrees of CSP in this case is whether or not a gun was used in the commission of the offense. There was evidence in this case that could establish that Defendant did not use a gun during the attack on Complainant, even though the evidence adduced at trial surrounding the issue of the gun was conflicting. Complainant testified that Defendant gained entry to her house, took her to an upstairs bedroom by force, handcuffed her, and then pulled a holstered gun out of his pocket, which he used to threaten her. Defendant, on the other hand, testified he did not own the gun the police found at Complainant’s house a week after the attack and that he had seen the gun in question in Complainant’s possession a month before the incident. Furthermore, Defendant’s wife also testified to seeing the gun in Complainant’s car a month before the incident and the police found no fingerprint evidence connecting the gun or the holster to Defendant. Thus, the conflict in the evidence was whether Defendant had the gun and holster in his pocket and brought' the gun into Complainant’s house on the night of the attack, as Complainant claims, or whether the gun was Complainant’s and was never in Defendant’s possession to be used during any attack, as Defendant claims.
The trial court rejected any view of the evidence that would have justified giving a CSP III instruction for the stated reason that the testimony of Complainant had to be taken as “a complete package” and accepted or rejected in its entirety. The trial court came to this conclusion because Defendant had generally presented an alibi defense, denying he was involved in any way with the attack on Complainant. The majority opinion affirms based on the trial court’s reasoning, citing to State v. Manus, 93 N.M. 95, 101, 597 P.2d 280, 286 (1979), overruled on other grounds, Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982), for the proposition that a lesser-included-offense instruction is not warranted if the evidence would have to be fragmented to the point of distortion for the lesser offense to be the highest degree of offense committed. I do not believe, however, that any distortion is necessary to obtain some view of the evidence tending to establish that Defendant did indeed rape Complainant, but did not use a gun during the attack.
The majority is correct in stating that a jury would have to reject Defendant’s alibi defense but believe his testimony about the gun. In other words, they would have to accept Complainant’s testimony about the attack in general but reject her testimony about the gun in order to find Defendant guilty solely of CSP III. The majority finds this kind of fragmentation of the evidence impermissible in the context of entitlement to a lesser-included-offense instruction. This kind of fragmentation occurs at trial on a regular basis, however, when juries believe only parts of a witness’s testimony or accept only parts of the evidence presented by the prosecution or defense. If this was not the case, there would be no trials in which the verdict resulted in conviction on some charges and acquittal on others.
The majority also states that there must be some evidence to support the lesser-included-offense instruction other than that obtained from taking parts of testimony from the victim and parts from Defendant. I need not decide whether I agree with this statement because it does not apply in this case. There was other evidence to corroborate Defendant’s testimony about the gun — his wife’s testimony and the lack of fingerprint evidence. This corroborating evidence puts Defendant’s case on a par with Fish, in which no knife being found supported the defendant’s testimony that he did not use a knife in the incident, and State v. Benavidez, 94 N.M. 706, 707, 616 P.2d 419, 420 (1980), overruled on other grounds, Sells, 98 N.M. at 786, 653 P.2d at 162, in which another witness testified about the defendant’s gesture with his arm; in both of those cases, a lesser-included instruction was given.
The majority opinion ends by saying Defendant was either innocent of any crime or guilty of CSP II. From this statement and from the cases the opinion cites from other jurisdictions, the majority seems to take the view that Defendant was not entitled to a CSP III instruction just because he asserted an alibi defense at trial. This is not the law in New Mexico and I would not so hold. See State v. Privett, 104 N.M. 79, 81, 717 P.2d 55, 57 (1986); Benavidez, 94 N.M. at 708, 616 P.2d at 421.
In sum, there is a legitimate view of the evidence in this case that Defendant did not use a gun during the sexual assault which could sustain a finding that the lesser offense of CSP III was the highest degree of the crime committed. Fish, 102 N.M. at 779, 701 P.2d at 378. Relying on settled New Mexico precedent, I believe that Defendant was entitled to a CSP III instruction. Accordingly, I would reverse Defendant’s CSP II convictions and remand for a new trial on those charges.
B. INEFFECTIVE ASSISTANCE OF COUNSEL FOR UNTIMELY BAT-SON CHALLENGE
The majority opinion does not reach the issue of whether Defendant received ineffective assistance of counsel due to the untimeliness of his objection to the prosecutor’s seemingly discriminatory use of peremptory challenges at trial. The majority reasons that Defendant failed to establish a prima facie case of ineffective assistance because trial counsel might have been implementing a plausible, rational strategy or tactic which is not apparent from the record on appeal. I disagree with this reasoning in Defendant’s case and would hold that trial counsel’s performance was deficient because he did not make a timely objection to discrimination by the State in the jury-selection process.
As a preliminary matter, I believe Defendant made a prima facie showing of discriminatory use of peremptory challenges by the State. Defendant is white. The State used one hundred percent of its peremptory challenges to remove Hispanic venirepersons from the panel. Under State v. Gonzales, 111 N.M. 590, 596-97, 808 P.2d 40, 46-47 (Ct.App.), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991), this constitutes a prima facie showing of intentional discrimination that states a claim under the Equal Protection Clause. See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (defendant has standing to object to race-based exclusions of jurors even when defendant is not same race as excluded jurors). The issue of ineffective assistance of counsel must be examined in light of the prima facie case of racial discrimination in jury selection established by Defendant through his attorney’s untimely objection.
The standard by which an attorney’s conduct must be assessed when determining whether a defendant received ineffective assistance of counsel is an objective one. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984) (“When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.”). Thus, not just any plausible strategy or tactic on the part of defense counsel will suffice to meet the constitutional standard of objective reasonableness. The attorney’s conduct should be measured against the range of competence expected of criminal defense attorneys. See id. The possible strategies listed in the majority opinion for defense counsel’s failure to object in this case might be plausible. Indeed, defense counsel may even have had a rational tactic in mind when he waived, through default, Defendant’s vital right to challenge the fairness of the selection of the jury. Cf. Powers, 499 U.S. at 411, 111 S.Ct. at 1371 (discriminatory use of peremptory challenges harms a defendant because “racial discrimination in the selection of jurors ‘casts doubt on the integrity of the judicial process,’ ... and places the fairness of a criminal proceeding in doubt.”) (quoting Rose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct. 2993, 3000, 61 L.Ed.2d 739 (1979). However, I do not believe making an untimely objection .to discriminatory jury selection, with the result that the injustice cannot be cured at trial or on appeal, is reasonable by the norms and standards of the legal profession in New Mexico.
Courts from other jurisdictions that have considered this issue in cases presenting the same or similar facts as those presented by Defendant’s ease, support the conclusion that counsel’s performance was deficient when he did not make his objection in time for it to
accomplish its goal. See Ex Parte Yelder, 575 So.2d 137, 139 (Ala.1991) (failure of counsel to make timely Batson objection to prima facie case of purposeful discrimination by state in jury selection process is ineffective assistance of counsel and prejudice will be presumed), cert. denied, — U.S. -, 112 S.Ct. 273, 116 L.Ed.2d 225 (1991); Jackson v. Thigpen, 752 F.Supp. 1551, 1562 (N.D.Ala.1990) (counsel’s failure to object at all to prosecutor’s blatantly discriminatory use of peremptory challenges was not a “reasonable exercise of professional judgment” and constituted ineffective assistance of counsel); Williams v. State, 834 S.W.2d 85, 87 (Tex.Ct.App.1992) (trial counsel’s performance deficient in not raising Batson issue on timely basis); Batiste v. State, 834 S.W.2d 460, 466 (Tex.Ct.App.1992) (same); cf. People v. Reyes, 151 A.D.2d 262, 542 N.Y.S.2d 178, 179 (N.Y.App.Div.1989) (appellate counsel’s failure to raise Batson claim on appeal, where prosecutor had peremptorily removed all Hispanic venirepersons at trial, constituted ineffective assistance of appellate counsel); Government of Virgin Islands v. Forte, 865 F.2d 59, 64-65 (3d Cir.1989) (counsel’s conduct in failing-to object to seemingly discriminatory use of peremptory challenges when counsel knew Batson was pending in the Supreme Court was unreasonable under prevailing standards). What is notable about the cited cases is that none of the courts involved.discussed the possible strategic reasons for untimely or missing Batson objections; rather, the courts determined that the conduct in question was objectively unreasonable and quickly turned to the harder question involved in the issue before them, that of prejudice to the defendant from counsel’s deficient performance.
These courts have devised a range of approaches to analyzing the question of prejudice in their eases. The Alabama Supreme Court has taken the simplest approach by holding that prejudice will be presumed when defense counsel is ineffective for not making a timely Batson objection where the claim has merit. Yelder, 575 So.2d at 139. Texas, on the other hand, conducts a harmless error analysis for constitutional error. See Williams, 834 S.W.2d at 85. The approach that makes the most sense to me involves tying prejudice to whether the defendant would have prevailed on his or her Batson objection. If the defendant would have prevailed, then he or she has been prejudiced by the incompetence of the trial attorney and is entitled to a new trial. See Yelder, 575 So.2d at 139; Jackson, 752 F.Supp. at 1561-62; Forte, 865 F.2d at 64-65.
I believe this approach to be the most prudent and the fairest to both parties in a criminal prosecution. Following the majority of jurisdictions, I would find that Defendant established a prima facie case of ineffective assistance of counsel based on the untimely Batson-type objection. I would remand his case for a hearing and reverse in the event the trial court found the State used its peremptory challenges to discriminate against Hispanies during jury selection.