STATE OF NEW MEXICO v. CHRISTOPHER SAIS

Alamogordo, NM - Criminal defense lawyer represented defendant CHRISTOPHER SAIS charged with two counts of criminal sexual penetration in the second degree (CSP II) and one count of contemp.

Defendant appeals the district court’s judgment and sentence, convicting him

21 for two counts of criminal sexual penetration in the second degree (CSP II in the

Court of Appeals of New Mexico

Filed 2/10/2020 8:47 AM

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1 commission of another felony) and one count of contempt. Unpersuaded that

2 Defendant’s docketing statement supplied sufficient information and established

3 error, we issued a notice of proposed summary disposition, proposing to affirm.

4 Defendant filed a motion for extension of time to file a memorandum in opposition

5 and to allow an amended docketing statement. This Court granted the motion, and

6 Defendant filed a document entitled, “amended docketing statement.” This document

7 does not add new issues and again does not supply us with sufficient information to

8 establish error. This Court confirmed with appellate counsel that the “amended

9 docketing statement” is intended to constitute Defendant’s response to our calendar

10 notice, notwithstanding our order of March 6, 2019, granting the request to file an

11 amended docketing statement. Thus, we refer to Defendant’s “amended docketing

12 statement” as his response to our notice or as the memorandum in opposition (MIO)

13 and treat it as we would a typical response to our notice.

14 {2} On appeal, Defendant contends the district court erred by denying his motion

15 for a continuance and to terminate the attorney-client relationship with his counsel

16 and asserts that he was denied effective assistance of counsel. [DS 4-5; MIO 3-4, 5-7]

17 Second, Defendant contends the district court erred by denying his motion for a new

18 trial based on alleged discovery violations. [DS 5; MIO 4-5] Third and lastly,

19 Defendant contends the district court erred by denying his motion for a new trial

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1 based on his inability to introduce exculpatory evidence. [DS 5; MIO 5] Defendant’s

2 response to our notice abandons three issues raised in the docketing statement. See

3 State v. Salenas, 1991-NMCA-056, ¶ 2, 112 N.M. 208, 814 P.2d 136 (explaining that

4 where a party has not responded to the Court’s proposed disposition of an issue, that

5 issue is deemed abandoned).

6 Defendant’s Assertions Regarding Trial Counsel

7 {3} Defendant contends the district court should have granted (1) his request to

8 sever the attorney-client relationship due to their lack of communication, and (2) a

9 continuance so that Defendant could file pretrial motions and prepare a defense. [DS

10 4-5; MIO 3-4, 6] Defendant raised these matters to the district court in a sparse

11 pretrial motion on the morning of trial that did not identify the amount of delay

12 requested, any details about the deteriorating attorney-client relationship or its actual

13 impact on the case. [RP 78-79] As we stated in our notice, the record shows the

14 district court concluded Defendant failed to show good cause for the filing of the

15 motion so close to trial, and the motion was designed to cause needless delay. [RP

16 155] Defendant responds that the district court should have inquired into the

17 allegations and asked whether counsel had provided Defendant with discovery to

18 review and what efforts were made to prepare for trial. [MIO 3]

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1 {4} Defendant continues to fail to explain how he demonstrated prejudice to the

2 district court—i.e., how potential pretrial motions or defenses he would have raised

3 would have changed the outcome—or how he established good cause for filing the

4 motion on the morning of trial. See State v. Jacobs, 2000-NMSC-026, ¶ 46, 129 N.M.

5 448, 10 P.3d 127 (“[The] assertion of the possibility of prejudice, without more, is

6 insufficient to establish actual prejudice.”); State v. Hobbs, 2016-NMCA-006, ¶ 21,

7 363 P.3d 1259 (“Defendant must demonstrate that his counsel’s errors prejudiced his

8 defense such that there was a reasonable probability that the outcome of the trial

9 would have been different.” (internal quotation marks and citation omitted)). In

10 essence, Defendant contends the district court had an obligation to develop

11 Defendant’s claims on his behalf and ignore its own concerns about Defendant’s

12 potential gamesmanship, the additional,seemingly needless delay, and the impact of

13 further delay on the alleged victim. [RP 155-56] This is not consistent with our case

14 law and does not demonstrate abuse of discretion. See State v. Gonzales, 2017-

15 NMCA-080, ¶¶ 32-33, 406 P.3d 534 (explaining it is the defendant’s burden of

16 establishing abuse of discretion in the denial of a continuance and stating the factors

17 to consider: “ ‘(1) the length of the requested delay; (2) the likelihood that a delay

18 would accomplish the movant’s objectives; (3) the existence of previous continuances

19 in the same matter; (4) the degree of inconvenience to the parties and the court; (5)

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1 the legitimacy of the motives in requesting the delay; (6) the fault of the movant in

2 causing a need for the delay; and (7) the prejudice to the movant in denying the

3 motion.’ ” Id. ¶ 33 (quoting State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976

4 P.2d 20)); see also State v. Leyva, 2011-NMSC-009, ¶ 36, 149 N.M. 435, 250 P.3d

5 861 (explaining that the preservation rule requires parties to state the applicable legal

6 principle and develop the facts in the district court to adequately alert that court to the

7 claim and provide it an opportunity to correct a problem and to afford the opposing

8 party a fair opportunity to respond to the claim). As a result, we are not persuaded

9 that Defendant has established error in the denial of his motion for a continuance and

10 to fire trial counsel.

11 {5} We are similarly unpersuaded by Defendant’s claim that he was denied the

12 effective assistance of counsel. [DS 4-5; MIO 5-7] “To establish ineffective

13 assistance of counsel, a defendant must show: (1) counsel’s performance was

14 deficient, and (2) the deficient performance prejudiced the defense.” State v. Astorga,

15 2015-NMSC-007, ¶ 17, 343 P.3d 1245 (internal quotation marks and citation

16 omitted). “To determine if defense counsel’s performance was deficient, we consider

17 whether it fell below an objective standard of reasonableness.” Id. ¶ 18 (internal

18 quotation marks and citation omitted). To establish prejudice,

19 A defendant must demonstrate that counsel’s errors were so serious,

20 such a failure of the adversarial process, that such errors undermine

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1 judicial confidence in the accuracy and reliability of the outcome. A

2 defendant must show a reasonable probability that, but for counsel’s

3 unprofessional errors, the result of the proceeding would have been

4 different.

5 Id. ¶ 21 (alterations, internal quotation marks, and citation omitted).

6 {6} “On direct appeal, the record is frequently inadequate to either evaluate

7 counsel’s performance or to determine prejudice.” Id. ¶ 17. “As a result, we prefer an

8 ineffective assistance of counsel claim to be brought in a habeas corpus proceeding,

9 so that the defendant may actually develop the record with respect to defense

10 counsel’s actions.” Id. ¶ 17 (internal quotation marks and citation omitted).

11 {7} Defendant asserts several deficiencies on the part of trial counsel denied him

12 effective assistance of counsel: (1) the failure to communicate with Defendant;(2) the

13 failure to hire or consult a DNA expert; (3) the failure to further investigate and test

14 more stains in the hotel room; (4) the failure to investigate the videos and other

15 evidence showing Defendant near the scene of the attack; and (5) the failure to

16 subpoena the two women Defendant claims to have had intercourse with in the same

17 hotel room immediately prior to the alleged attack. [MIO 5-7] Neither Defendant’s

18 pleadings in district court nor those on appeal offer any background into or insight

19 as to the basis for any of trial counsel’s alleged failures that would permit us to

20 evaluate whether trial counsel’s actions actually fell below an objective standard of

21 reasonableness. See id. ¶ 18. Additionally, even assuming defense counsel’s

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1 performance was deficient, Defendant has not demonstrated he was prejudiced

2 thereby. Defendant does not show how the outcome would have been different had

3 his communication with his attorney been better or had his attorney engaged in

4 further investigations or had his attorney subpoenaed two unidentified women. As a

5 result, the record does notsupport these claimed failures to be unreasonably deficient,

6 nor does the record show how correcting these failures would have affected the

7 outcome. Because Defendant’s contentions are too speculative on the record before

8 us, we refer Defendant, as we often do, to habeas proceedings to develop the record

9 to support his claims of ineffective assistance of counsel. See id. ¶ 17; State v. Ortega,

10 2014-NMSC-017, ¶¶ 57, 59, 327 P.3d 1076 (rejecting claims of ineffective assistance

11 of counsel because the arguments were speculative).

12 Alleged Discovery Violations

13 {8} Defendant contends the district court erred by not suppressing evidence

14 introduced at trial that was not provided to Defendant, personally. [MIO 4] Defendant

15 and the record indicate the State fulfilled its discovery obligations by providing

16 materials through the case management system and its “open file” policy, however.

17 [MIO 5; RP 151, 156-57] Defendant does not refer us to any authority suggesting,

18 under these circumstances, that more was required of the State or that the evidence

19 should have been suppressed in the absence of a timely, meritorious motion to

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1 suppress. “[A]ppellate courts will not consider an issue if no authority is cited in

2 support of the issue and that, given no cited authority, we assume no such authority

3 exists.” State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129. To the extent

4 this contention relates to Defendant’s claim of ineffective assistance of counsel, he

5 could pursue this claim in habeas proceedings.

6 Motion for a New Trial

7 {9} Defendant contends the district court erred by denying his motion for a new

8 trial based on Defendant’s inability to introduce potentially exculpatory evidence.

9 [MIO 5] As we suggested in our calendar notice, Defendant did not sufficiently

10 develop this claim in district court for the State to respond or for the district court’s

11 assessment. [CN 5] Thus, this claimwas not sufficiently preserved for our review. See

12 Leyva, 2011-NMSC-009, ¶ 36 (explaining the purposes of adequate preservation). On

13 appeal, Defendant’s slightly more detailed claim—that the investigating officers did

14 not test all the evidence in the hotel room, which could have denied him exculpatory

15 evidence—is too speculative to establish prejudice or error, fundamental or otherwise.

16 See State v. Astorga, 2016-NMCA-015, ¶ 5, 365 P.3d 53 (“Defendant must

17 demonstrate prejudice from the errors he alleges; absent a showing of prejudice,

18 Defendant cannot demonstrate error, let alone fundamental error, which we require

19 for unpreserved claims.”). To the extent this claim of error also relates to his claim

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1 of ineffective assistance of counsel, we again direct Defendant to habeas proceedings

2 to develop the record. Astorga, 2015-NMSC-007, ¶ 17.

For the reasons stated in our notice and in this opinion, we affirm the district court’s judgment and sentence.