{ "id": 4240727, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. NIEVES SONNY ORTEGA, Defendant-Appellant", "name_abbreviation": "State v. Ortega", "decision_date": "2014-06-09", "docket_number": "Docket No. 33,864", "first_page": "181", "last_page": "196", "citations": [ { "type": "official", "cite": "2014-NMSC-017" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "100 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588533 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0764-01" ] }, { "cite": "1984-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0 }, { "cite": "278 P.3d 517", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4186851 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 38" }, { "page": "\u00b6 38" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0673-01" ] }, { "cite": "306 P.3d 426", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4335299 ], "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm-app/4/0196-01" ] }, { "cite": "113 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723276 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/113/0221-01" ] }, { "cite": "1992-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 32" } ], "opinion_index": 0 }, { "cite": "2001-NMSC-013", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352473 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0179-01" ] }, { "cite": "2001-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352669 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0198-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "2002-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260689 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 33" }, { "page": "\u00b6 19" }, { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0657-01" ] }, { "cite": "106 N.M. 300", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708052 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/106/0300-01" ] }, { "cite": "1987-NMSC-080", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0 }, { "cite": "1997-NMSC-047", "category": 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"opinion_index": 0 }, { "cite": "2012-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188653 ], "pin_cites": [ { "page": "\u00b6 34" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0224-01" ] }, { "cite": "90 N.M. 710", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2874545 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0710-01" ] }, { "cite": "1977-NMCA-080", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 69" } ], "opinion_index": 0 }, { "cite": "122 N.M. 148", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322283 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0148-01" ] }, { "cite": "1996-NMSC-043", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 47" } ], "opinion_index": 0 }, { "cite": "2001-NMCA-061", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 352625 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0670-01" ] }, { "cite": "116 N.M. 793", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727643 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/116/0793-01" ] }, { "cite": "1994-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0 }, { "cite": "2011-NMSC-027", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250059 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 55" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0704-01" ] }, { "cite": "299 P.3d 863", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCERT-001", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "296 P.3d 1232", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4190584 ], "pin_cites": [ { "page": "\u00b6 30" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0461-01" ] }, { "cite": "294 P.3d 435", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-003", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4191021 ], "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0363-01" ] }, { "cite": "2004-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224656 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 8" }, { "page": "\u00b6 8" }, { "page": "\u00b6 11" }, { "page": "\u00b6 9" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0348-01" ] }, { "cite": "275 P.3d 110", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188256 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 15" }, { "page": "\u00b6 45" }, { "page": "\u00b6 40" }, { "page": "\u00b6 43" }, { "page": "\u00b6 44" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0535-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "2007-NMSC-007", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669553 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0185-01" ] }, { "cite": "2009-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243179 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 38" }, { "page": "\u00b6 11" }, { "page": "\u00b6 11" }, { "page": "\u00b6 38" }, { "parenthetical": "stating that the defendant must demonstrate that \"the proffered testimony\" is material to his or her defense" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0357-01" ] } ], "analysis": { "cardinality": 1611, "char_count": 48782, "ocr_confidence": 0.782, "pagerank": { "raw": 6.158979011947244e-08, "percentile": 0.38272327846140836 }, "sha256": "ff627d31922636db0ca22fa61e7e7a5ac1652cfb3df23879549ff15d1b6fee75", "simhash": "1:8660f368eec11249", "word_count": 7613 }, "last_updated": "2023-07-14T17:19:17.637489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BARBARA J. VIGIL, Chief Justice", "WE CONCUR:", "PETRA JIMENEZ MAES, Justice", "RICHARD C. BOSSON, Justice", "EDWARD L. CH\u00c1VEZ, Justice", "CHARLES W. DANIELS, Justice" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. NIEVES SONNY ORTEGA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nVIGIL, Chief Justice.\n{1} Nieves Sonny Ortega (Defendant) appeals directly to this Court from a life sentence stemming from a conviction of first-degree murder. Defendant was convicted of one count of willful and deliberate murder, contrary to NMSA 1978, Section 30-2-l(A)(l) (1994). Defendant was also convicted of conspiracy to commit first-degree murder, attempted first-degree kidnapping, attempted armed robbery, conspiracy to commit robbery, and conspiracy to commit first-degree kidnapping. On appeal, Defendant presents the following arguments: (1) the record establishes a case of ineffective assistance of counsel, (2) the district court improperly denied an important defense witness use immunity, (3) the testimony of the State\u2019s medical expert violated Defendant\u2019s confrontation rights, (4) Defendant\u2019s multiple conspiracy convictions violate double jeopardy, (5) the jury was improperly instructed, (6) the State violated its duty to disclose, and (7) cumulative error. We affirm Defendant\u2019s convictions for first-degree murder, conspiracy to commit first-degree murder, attempted first-degree kidnapping, and attempted armed robbery. We vacate Defendant\u2019s convictions for conspiracy to commit robbery and conspiracy to commit first-degree kidnapping on double jeopardy grounds.\nFACTS\n{2} On the night of January 29, 2010, Adam Laureles (Laureles) drove to the residence of a friend in Hobbs, New Mexico to pick up his brother, Chris Laureles (Victim.) Victim was listening to music and drinking beer with a small group of people. At around midnight, a member of the group left and returned with Defendant and Mark Ruiz (Co-defendant).\n{3} Co-defendant threatened Victim over money Victim allegedly owed to him and directed Victim to leave with him. Victim refused. Co-defendant pulled out a handgun, and Defendant placed his hand in his pocket making it appear that he also had a gun. Co-defendant told Victim to take off his jewelry, but Victim refused. Co-defendant wanted the jewelry or Victim\u2019s car as collateral for the debt allegedly owed to him. Defendant walked outside the house, and was followed by Laureles, Victim, and Co-defendant.\n{4} Upon going outside, Laureles noticed a car parked on the street behind Victim\u2019s car, which he believed to be Defendant\u2019s car. Victim and Co-defendant walked over to Victim\u2019s car and Victim asked Co-defendant to get in the car with him. Victim got into the driver\u2019s seat while Co-defendant remained standing outside the car, next to the driver\u2019s side. Co-defendant reached into Victim\u2019s car, grabbed a flashlight, and hit Victim on the head with it. Victim started the car, put it in reverse, and hit the gas. Victim backed into Defendant\u2019s car but before he could take off, Defendant and Co-defendant opened fire. Once the shooting stopped, Victim jumped out of the passenger side door, took several steps, collapsed, and died on the scene. The Office of the Medical Investigator (OMI) determined that Victim died from gunshot wounds to the chest, abdomen, and left arm, and ruled the death a homicide.\nDISCUSSION\nI. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENSE WITNESS CO-DEFENDANT USE IMMUNITY\n{5} During its case in chief, defense counsel informed the district court that he intended to call Co-defendant as a witness, but that defense counsel expected him to refuse to testify on Fifth Amendment grounds. In chambers, Co-defendant confirmed that he would assert his constitutional right against self-incrimination if called to testify, but asserted that he would testify if he was granted use immunity. Defense counsel requested that the district court grant Co-defendant use immunity to testify under Rule 5-116 NMRA, arguing that Co-defendant was important to Defendant\u2019s defense because he was an eyewitness to the events that had transpired. The State opposed use immunity for Co-defendant, citing its concurrent prosecution of Co-defendant and arguing that if Co-defendant were granted use immunity, his case would have to be conflicted out to another judicial district. After asking defense counsel about the \u201csignificant financial resources\u201d that had been devoted to Co-defendant\u2019s case and noting that Co-defendant\u2019s case was \u201cripe for trial,\u201d the district court denied Defendant\u2019s motion to grant use immunity to Co-defendant.\n{6} Defendant argues that the district court erred in denying his motion to grant Co-defendant use immunity. Defendant argues that the district court failed to conduct a balancing test as required under State v. Belanger, 2009-NMSC-025, \u00b6 38, 146 N.M. 357,210 P.3d 783. Defendant also argues that the district court erred because it appeared to make its decision based on the State\u2019s concerns about conflicting out Co-defendant\u2019s case to another judicial district. According to Defendant, these concerns should not have outweighed his right to present a defense. While we agree with Defendant that the district court\u2019s apparent reasoning for denying witness use immunity was not appropriate, we affirm the district court\u2019s decision on other grounds.\n{7} We review a district court\u2019s decision to grant witness use immunity for an abuse of discretion. See id. \u00b6 38. \u201c[W]e will affirm the trial court\u2019s decision if it was right for any reason so long as it is not unfair to the appellant.\u201d See State v. Gallegos, 2007-NMSC-007, \u00b6 26, 141 N.M. 185, 152 P.3d 828.\n{8} Under a grant of use immunity, the State promises to refrain from using a witness\u2019s testimony, and any evidence derived from that testimony, in any future prosecution of the witness. Belanger, 2009-NMSC-025, \u00b6 11; see also Rule 11-413 NMRA (\u201cTestimony or evidence compelled under an order of immunity, or any information derived from such testimony or evidence, may not be used against the person compelled to testify or to produce evidence in any criminal case.\u201d). In other words, \u201cthe prosecution may still proceed with charges against the witness so long as it does not use or rely on the witness\u2019s testimony or its fruits.\u201d Belanger, 2009-NMSC-025, \u00b6 11. \u201cThe State, if it wishes to prosecute, retains the ability to use other, independently obtained evidence such as material it already had, or material it developed independently of the witness\u2019s testimony.\u201d Id. \u00b6 12.\n{9} Under Rule 5-116(A) NMRA, the defense is permitted to request witness use immunity. In deciding whether to grant a defense witness use immunity over the opposition of the State, the district court must perform a balancing test. The balancing test\nplaces the initial burden on the accused. The defendant must show that the proffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree. If the defendant meets this initial burden, the district court must then balance the defendant\u2019s need for the testimony against the government\u2019s interest in opposing immunity.\nBelanger, 2009-NMSC-025, \u00b6 38.\n{10} Wehold that the district court did not abuse its discretion in denying Defendant\u2019s motion to grant Co-defendant witness use immunity because Defendant failed to meet his burden under Belanger. Under Belanger, Defendant was required to make a proffer as to what testimony Co-defendant would give. See id. (stating that the defendant must demonstrate that \u201cthe proffered testimony\u201d is material to his or her defense). Although defense counsel pointed out discrepancies and credibility problems with differentprosecution witnesses, he did not make a proffer as to what testimony Co-defendant would give. The district court asked defense counsel if he would like to \u201caddress all legs of the test,\u201d but he declined, instead deferring to the State\u2019s objection. At this point, defense counsel should have made a proffer or could have requested immunity limited to an in camera hearing, which would have allowed the district court to hear Co-defendant\u2019s testimony and gauge its importance. See id. \u00b6 39 (stating that an in camera interview \u201cfor the purpose of understanding what the witness\u2019s testimony at trial will be\u201d does not bind the district court at trial). Defense counsel failed to do so.\n{11} Defendant argues that defense counsel may have felt that a proffer was unnecessary, given that the district court appeared to make its decision on the cost and inconvenience to the State. This argument is unpersuasive. The district court gave defense counsel a clear opportunity to address the relevant prongs of Belanger and counsel demurred. Under Belanger, Defendant bears the initial burden of proof. Id. \u00b6 38.\n{12} Belanger also requires the district court to make a finding that the witness\u2019s \u201cproffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree.\u201d Id. At trial, defense counsel only stated that Co-defendant\u2019s testimony could help the jury resolve alleged discrepancies in the testimony of the State\u2019s witnesses. This argument is speculative and fails to address how Defendant\u2019s defense would have been prejudiced without Co-defendant\u2019s testimony.\n{13} Although we affirm the district court\u2019s ultimate decision to deny Co-defendant witness immunity, we disagree with its apparent reasoning. As noted by Defendant, the district court appeared to make its decision based on the cost and inconvenience to the State. Under Belanger, \u201cthe [s]tate must demonstrate a persuasive reason that immunity would harm a significant governmental interest.\u201d Id. Furthermore, a \u201cdesire for judicial expediency provides no excuse to short-change a defendant in his [or her] quest for constitutional protection.\u201d Id. \u00b6 55. Therefore, we reiterate that once a defendant meets his or her initial burden, the state must present substantive reasons why witness use immunity should not be granted. See id. \u00b6 38. We take this opportunity to stress that mere inconvenience to the State is not a persuasive reason for a district court to deny witness use immunity.\nII. THE ADMISSION OF SURROGATE TESTIMONY REGARDING THE VICTIM\u2019S TOXICOLOGY REPORT THROUGH THE STATE\u2019S MEDICAL EXPERT WAS HARMLESS ERROR\n{14} At trial, Dr. Ross Zumwalt, Chief Medical Investigator for the State of New Mexico, testified that a toxicology report had been performed on the blood and vitreous fluid in Victim\u2019s body. He stated that Victim\u2019s blood alcohol concentration was .018, which he described as a \u201csmall amount\u201d compared to the standard of .08 for driving under the influence. He also said that marijuana metabolites were detected in Victim\u2019s blood, indicating that sometime in the past Victim had used marijuana. Finally, Dr. Zumwalt stated that amphetamine and methamphetamine were also found in Victim\u2019s body. Dr. Zumwalt testified that the toxicology testing was performed by the Scientific Laboratory Division (SLD) of the New Mexico Department of Health and that the report was signed by Dr. Rong-Jen Hwang, Bureau Chief of the SLD\u2019s Toxicology Bureau.\n{15} At trial, defense counsel objected to Dr. Zumwalt\u2019s testimony regarding the toxicology report on confrontation grounds, arguing that Crawford v. Washington, 541 U.S. 36 (2004), requires the analyst who actually performed the test to testify. The district court denied Defendant\u2019s motion, concluding that there was no violation of Defendant\u2019s confrontation rights.\n{16} On appeal, Defendant argues that Dr. Zumwalt\u2019s testimony regarding Victim\u2019s toxicology report violated his constitutional right to confront witnesses because: (1) it was testimonial, (2) it was offered to prove the truth of the matter asserted, (3) no testimony was given stating that Dr. Hwang was unavailable, and (4) Defendant did not have an opportunity to cross-examine Dr. Hwang.\n{17} Appellate courts review de novo the question of whether the Confrontation Clause has been violated by the admission of hearsay evidence. State v. Tollardo, 2012-NMSC-008, \u00b6 15, 275 P.3d 110. Confrontation Clause violations are subject to harmless error review. See State v. Johnson, 2004-NMSC-029, \u00b6 8, 136 N.M. 348, 98 P.3d 998 (stating that non-structural federal constitutional errors are subject to a harmless error analysis).\n{18} Pursuant to the Sixth Amendment to the United States Constitution, \u201c[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.\u201d This clause bars the admission of out-of-court statements that are \u201cboth testimonial and offered to prove the truth of the matter asserted},] . . . unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.\u201d State v. Navarette, 2013-NMSC-003, \u00b6 7, 294 P.3d 435. A statement is testimonial when its primary purpose \u201cis to establish or prove past events potentially relevant to later criminal prosecution.\u201d Id. \u00b6 8 (internal quotation marks and citation omitted).\n{19} Dr. Zumwalt testified that the OMI orders toxicology reports when it feels that drugs or alcohol might be a key factor in a death. The State elicited Dr. Zumwalt\u2019s testimony about Victim\u2019s toxicology report to prove that Victim did not die from drug or alcohol use, but rather from gunshot wounds. Because the report was compiled \u201cto establish or prove past events potentially relevant to later criminal prosecution\u201d, id., we conclude the statements therein were testimonial. Furthermore, the statements concerning toxicity were offered for the truth of the matter asserted (that Victim\u2019s cause of death was not alcohol or drugs), the State did not argue that Dr. Hwang was unavailable to testify at trial, and Defendant was not afforded an opportunity to cross-examine him. Therefore, pursuant to Navarette, we hold that Dr. Zumwalt\u2019s testimony regarding the toxicology reports violated Defendant\u2019s confrontation rights under the Sixth Amendment. While we conclude that there was a confrontation violation, we also conclude that the violation was harmless error. See Tollardo, 2012-NMSC-008, \u00b6 45 (\u201cWhen a statement is admitted in violation of the Confrontation Clause, we next inquire into whether the error was harmless, and [t]o preclude reversal, the error must be harmless beyond a reasonable doubt.\u201d (alteration in original) (internal quotation marks and citation omitted)).\n{20} Harmless errors are \u201cconstitutional errors which in the setting of a particular case are so unimportant and insignificant that they may ... be deemed harmless, not requiring the automatic reversal of the conviction.\u201d Johnson, 2004-NMSC-029, \u00b6 8 (internal quotation marks and citation omitted). The \u201c\u2018central focus\u2019 ... is \u2018whether there is a reasonable possibility\u2019... that \u201cthe erroneous evidence might have affected the jury\u2019s verdict.\u2019\u201d Tollardo, 2012-NMSC-008, \u00b6 40 (quoting Johnson, 2004-NMSC-029, \u00b6 11). The Court\u2019s focus \u201cis not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.\u201d Johnson, 2004-NMSC-029, \u00b6 9 (internal quotation marks and citation omitted). \u201c[W]hen reviewing an error\u2019s role in the trial, courts may, depending upon the circumstances of the cases before them, examine \u2018the importance of the [erroneously admitted evidence] in the prosecution\u2019s case\u2019, as well as \u2018whether the [error] was cumulative\u2019 or instead introduced new facts.\u201d Tollardo, 2012-NMSC-008, \u00b6 43 (alteration in original) (quoting Johnson, 2004-NMSC-029, \u00b6 11).\n{21} The State suggests that Dr. Zumwalt\u2019s testimony about the toxicology reports was used to confirm that neither alcohol, nor drugs was the cause of Victim\u2019s death. Defendant argues that he was prejudiced by the admission of Dr. Zumwalt\u2019s testimony because the toxicology report showed Victim\u2019s BAC was under the legal limit, thus undermining Defendant\u2019s theory that Victim did not resist kidnapping because he was impaired. We review the effects of the Confrontation Clause violation for harmless error on both Defendant\u2019s murder conviction and attempted kidnapping conviction. See Tollardo, 2012-NMSC-008, \u00b6 44 (\u201c[Because an error may be prejudicial with respect to one conviction, but harmless with respect to another, courts must separately assess the effect the error may have had on each of the defendant's convictions.\u201d)\n{22} With respect to the first-degree murder conviction, we hold that it was harmless error to admit the testimonial statements included in the toxicology report. Considering the factors articulated in Johnson, we first note that the Victim\u2019s toxicity levels were not important to the State\u2019s first-degree murder case. While the report affirmatively established that drugs and alcohol were not the cause of death, the State already presented evidence that Victim died of gunshot wounds inflicted by Defendant and Co-defendant. Further, this evidence supported an overwhelmingly strong case that Defendant and Co-defendant intentionally killed Victim. It is unclear why the State even sought to introduce evidence of Victim\u2019s toxicity, as relating to his cause of death, particularly when the cause of death was determined to be the gunshot wounds inflicted by Defendant and Co-defendant. Considering the evidence the jury did consider in determining Defendant was guilty of first-degree murder, it is logical to infer that the guilty verdict was rendered despite the improperly admitted statements in the toxicology report. We see no reasonable possibility that its admission contributed to the jury\u2019s guilty verdict.\n{23} Next we turn to the constitutional error\u2019s effect on Defendant\u2019s attempted kidnapping conviction. Defendant asserts that \u201c[i]f the victim was intoxicated, it was more likely that he was not intimidated into going with [Co-defendant] out to his car and thus not kidnapped.\u201d He further asserts that \u201c[t]he toxicology report and testimony tend\u2019 to show that [Victim] was sober and more likely not an active disputant but rather someone responding to a threat.\u201d First, as a practical matter, Defendant\u2019s theory that Victim was too impaired to consent would have done little to further his defense. Generally, evidence of intoxication typically serves to defeat a consent defense. See 1 Charles E. Torc\u00eda, Wharton\u2019s Criminal Law \u00a7 46, at 304 (15th ed. 1993) (\u201cAn apparent consent is ineffective if, by reason of. . . intoxication, the victim is unable to make a reasonable judgment as to the nature or harmfulness of the conduct in question, or if, by reason of force, threatened force, or fraud, he is induced to give such consent.\u201d). The only relevance that Victim\u2019s toxicity would have to a defense would be to show that Victim was indeed sober, thereby had capacity, and did consent by voluntarily going outside with Defendant and Co-defendant, which would normally be a defense to kidnapping. See State v. Sotelo, 2013-NMCA-028, \u00b6 30, 296 P.3d 1232, cert. denied, 2013-NMCERT-001, 299 P.3d 863 (\u201cKidnapping may occur once the [v]ictim\u2019s physical association with [the defendant [is] no longer voluntary.\u201d (alterations in original) (internal quotation marks and citation omitted)). Rather than arguing that he was prejudiced by a showing that Victim was sober, it appears to the Court that he should be arguing that Victim was sober and had capacity.\n{24} Addressing the Johnson factors, we first note that evidence of Victim\u2019s toxicity was not important to the State\u2019s attempted kidnapping case where it was proffered to establish the cause of death. Further, as discussed above, evidence of Victim\u2019s toxicity would have gone to his voluntary consent to walking outside, and evidence of his being closer to sober (and thereby able to consent) would only have helped Defendant\u2019s case. Next, other evidence presented at trial tended to show that Victim did not exhibit any substantial level of impairment. For example, Laureles testified that Victim actively resisted Defendant\u2019s and Co-defendant\u2019s attempts to get Victim to go outside and take off his jewelry. Based on this evidence, and considering that evidence of toxicity went to the element of another crime, we can infer that the jury\u2019s verdict was rendered despite the improperly admitted statements in the toxicology report. Again, we see no reasonable possibility that its admission contributed to the jury\u2019s guilty verdict.\n{25} With respect to Defendant\u2019s remaining convictions, we cannot see any way in which the statements in the toxicology report could be used as a basis for rendering a guilty verdict. With no logical connection to Victim\u2019s toxicity, the guilty verdicts rendered were certainly unattributable to improperly admitted testimonial statements. Accordingly, we hold that the district court\u2019s admission of Dr. Zumwalt\u2019s testimony regarding the toxicology report was harmless error because we cannot conclude that there is any reasonable possibility that improperly admitted testimony contributed to D efendant \u2019 s convictions.\nIII. DEFENDANT\u2019S MULTIPLE CONSPIRACY CONVICTIONS VIOLATE DOUBLE JEOPARDY\n{26} \u2022 Defendant was convicted on three separate counts of conspiracy: conspiracy to commit first-degree murder, conspiracy to commit robbery, and conspiracy to commit first-degree kidnapping. Defendant argues that these convictions violate his double jeopardy rights under the United States and New Mexico Constitutions. The State concedes Defendant\u2019s double jeopardy claim with respect to conspiracy to commit kidnapping and conspiracy to commit robbery. We agree with Defendant and the State and hold that the facts of this case support only one conspiracy, conspiracy to commit first-degree murder.\n{27} \u201cThe defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment.\u201d NMSA 1978, \u00a7 30-1-10 (1963). In State v. Gallegos, 2011-NMSC-027, \u00b6 55, 149 N.M. 704, 254 P.3d 655, we held that New Mexico\u2019s conspiracy statute establishes \u201ca rebuttable presumption that multiple crimes are the object of only one, overarching, conspiratorial agreement subject to one, severe punishment set at the highest crime conspired to be committed.\u201d The State bears a \u201cheavy burden\u201d in overcoming this presumption. Id. New Mexico uses \u201c[t]he totality of the circumstances test utilized by the federal circuits ... to determine the exceptional instances in which the Legislature\u2019s presumption of singularity may be overcome by demonstrating the existence of more than one conspiracy.\u201d Id. \u00b6 56. The factors used by the federal circuits to analyze the number of agreements include but are not limited to: (1) whether the conspirators shared a common goal, (2) whether the location of the alleged conspiracies was the same, (3) whether there was a significant degree of temporal overlap between the charged conspiracies, (4) whether there was an overlap of participants between the conspiracies, and (5) whether the role played by the defendant in the alleged conspiracies was similar. Id. \u00b6 42 (citations omitted).\n{28} The evidence adduced at trial supports the existence of one conspiracy. Defendant and Co-defendant shared a common goal, to collect a debt from Victim. All three charged conspiracies occurred at or near the residence of Victim\u2019s friend and unfolded over a relatively shortperiod oftime. Furthermore, the actions of Defendant and Co-defendant overlapped and were mutually dependent. See id. \u00b6 61. Finally, the three charged conspiracies involved only one victim. See id. \u00b6 57. Therefore, we hold that there was only one conspiracy and that Defendant\u2019s double jeopardy rights were violated. Accordingly, we vacate Defendant\u2019s convictions for conspiracy to commit robbery and conspiracy to commit first-degree kidnapping.\nIV. THE JURY WAS PROPERLY INSTRUCTED\n{29} During the preparation of jury instructions in chambers, the district court asked if there were any objections to the following accessory instruction: \u201cThe defendant may be found guilty of a crime even though he himself did not do the acts constituting the crime.\u201d The State asserted that the instruction should say \u201cmurder\u201d instead of \u201ccrime.\u201d Defense counsel pointed out that UJI 14-2822 NMRA uses the word \u201ccrime.\u201d The State argued that the instruction should name the crime because the accessory instruction was only intended for the murder count. The district court stated that it planned to change the word \u201ccrime\u201d to \u201cmurder,\u201d but defense counsel objected, arguing that the uniform jury instruction should be followed. Ultimately, and without objection, the district court elected to follow the uniform jury instruction, but to place it immediately following the murder instructions.\n{30} During its deliberations, the jury sent the district court a question asking whether the accessory instruction applied to all counts or only the murder count. The State took the position that the district court could instruct the jury that the accessory instruction only applies to the murder charge. Defense counsel stated that he did not think the jury could be reinstructed under Rule 5-610 NMRA. The district court noted that UJI 14-2822 permits accessory liability for all crimes other than attempt and felony murder and stated that it would be happy to reinstruct the jury or clarify the instruction. Defense counsel evidently declined the offer and the State, apparently reversing its position, stated that it did not think the jury could be reinstructed. Defense counsel then asked the district court for a mistrial, arguing that the jury instructions were flawed and that the jury was confused. The district court stated that the matter had been discussed at some length in formulating the jury instructions, and stated, \u201cSo if there is error, in my opinion invited error . . . but I don\u2019t think there is error. A fair reading of 14-2822 seems to indicate that it may apply to any charge.\u201d At the request of defense counsel, and without objection from the State, the district court sent a note to the jury stating, \u201cYou will receive no further instruction.\u201d\n{31} Defendant argues that the jury was improperly instructed on accessory liability because accessory liability only should have applied to the murder count. Defendant contends that the district court had a duty to clarify the instruction regardless of the arguments of counsel. We hold that the jury was properly instructed and that any alleged error regarding the accessory instruction was invited error.\n{32} Defendant was charged with willful and deliberate first-degree murder. The uniform jury instruction on accessory liability that applies to willful and deliberate first-degree murder, UJI 14-2822, applies to all crimes except attempt and felony murder. Compare UJI 14-2820 NMRA (aiding or abetting accessory to attempt); UJI 14-2821 NMRA (aiding or abetting accessory to felony murder). Instruction No. 6 was patterned after UJI 14-2822. Uniform jury instructions are presumed to be correct. See State v. Wilson, 1994-NMSC-009, \u00b6 5, 116 N.M. 793, 867 P.2d 1175. Nevertheless, as pointed out by Defendant, the State intended accessory liability to only apply to the murder charge.\n{33} Defendant asks us to review the accessory jury instruction for fundamental error under State v. Foxen, 2001-NMCA-061, \u00b6 12, 130 N.M. 670, 29 P.3d 1071. In Foxen, the Court of Appeals held that it would review deficient jury instructions resulting from oversight or neglect for fundamental error. Id. Defendant argues that the deficient jury instruction in his case was a result of oversight or neglect because his attorney was \u201cmistaken about the law.\u201d\n{34} Defendant\u2019s case is distinguishable from Foxen. The jury instruction on accessory liability in Defendant\u2019s case was the result of invited error, not oversight or neglect. \u201cThe doctrine of fundamental error cannot be invoked to remedy the defendant\u2019s own invited mistakes.\u201d State v. Campos, 1996-NMSC-043, \u00b6 47, 122 N.M. 148, 921 P.2d 1266. New Mexico courts \u201chave consistently followed the ethical maxim that no party can profit by his own wrong.\u201d Proper v. Mowry, 1977-NMCA-080, \u00b6 69, 90 N.M. 710, 568 P.2d 236 (internal quotation marks and citations omitted) (holding that a jury instruction stating that defendant in a slander action must have entertained serious doubts as to the statements was invited error). A party may not be rewarded with a new trial when it invites jury instruction error and subsequently complains about that very error. See Estate of Gutierrez ex rel. Jaramillo v. Meteor Monument, L.L.C., 2012-NMSC-004, \u00b6 34, 274 P.3d 97 (holding that an error in a jury instruction concerning the scope of employment in a negligent supervision case was invited and did not entitle the defendant to a new trial).\n{35} Defense counsel invited error in the jury instructions in two respects. First, he objected to the State\u2019s proposed modification of the jury instruction during the formulation of the instructions. Second, he objected to reinstructing the jury after the jury expressed confusion about the application of the accessory instruction. Defense counsel was mistaken about the law in this regard. \u201cThe decision to issue additional jury instructions generally lies within the sound discretion of the [district] court.\u201d State v. Juan, 2010-NMSC-041, \u00b6 16, 148 N.M. 747, 242 P.3d 314; see also Rule 5-610(A) (stating that if the jury desires additional instructions \u201cthey may in the discretion of the court be returned to the courtroom and the court may give them such additional instructions\u201d). Therefore, we hold that defense counsel invited any alleged error in the jury instructions.\nV. DEFENDANT WAS NOT PREJUDICED BY THE STATE\u2019S FAILURE TO DISCLOSE THE VICTIM\u2019S TOXICOLOGY REPORT AND THE FULL BALLISTICS REPORT\nA. The Toxicology Report\n{36} During the testimony of Dr. Zumwalt, defense counsel noticed that Dr. Zumwalt was looking at the victim\u2019s file which included a toxicology report. After defense counsel raised the issue, the district court gave him an opportunity to copy the portions of the file to which Dr. Zumwalt was referring. Defense counsel asked to be heard in chambers.\n{37} In chambers, defense counsel objected that the toxicology report to which Dr. Zumwalt was referring differed from the report he had previously received in discovery. Defense counsel stated that the new report had not been disclosed under Rule 5-501(A)(4) NMRA and asked for a mistrial. Defense counsel argued that Defendant was prejudiced by the State\u2019s non-disclosure because without the reports \u201cwe don\u2019t know which way we can argue or whether we can use this as part of our case.\u201d The State replied that defense counsel could have contacted Dr. Zumwalt and requested to interview him and review his files. The district court denied Defendant\u2019s motion for a mistrial.\nB. The Ballistics Report\n{38} At trial, the State called Kevin Streine, a firearms and tool mark examiner for the New Mexico Department of Public Safety. Without objection, the district court recognized Streine as an expert witness in firearms and tool mark analysis. Streine testified that the OMI sent him three bullets recovered from Victim\u2019s body, one of which was fragmented into two pieces. Streine stated that when an item is received by the lab, it is weighed, and he does not rely on OMI\u2019s weights. Streine identified two of the bullets as .32 caliber. As for the two fragments, Streine testified that he could not determine their caliber, but he did identify them as being fired from the same gun as the .32 caliber bullets.\n{39} Streine also received four shell casings from the Hobbs Police Department which were collected from the crime scene. Streine determined that all four casings were .32 caliber and were fired from the same firearm. He testified that without the firearm in question, he could not say whether the bullets and casings were fired from the same firearm.\n{40} Finally, Streine received another bullet and additional fragments from the Hobbs Police Department which had been recovered from the victim\u2019s car. He identified the bullet and fragments as nominally .38 caliber. Streine stated that he used the bullet and fragment weights to determine the caliber.\n{41} During Streine\u2019s testimony, defense counsel noticed that he was referring to notes. Defense counsel brought this to the attention of the district court, and the district court took a recess to give defense counsel an opportunity to see the notes. In chambers, defense counsel stated that the two-page report he received in discovery did not contain the weights of the bullets, yet Streine was referring to a thirty-three-page document during his testimony that did contain the weights of the bullets. Defense counsel objected that under Rule 5-501 the material should have been provided during discovery to give the defense a fair opportunity to review the material prior to trial. Defense counsel stated that the report might contain exculpatory evidence and cited Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley, 514 U.S. 419 (1995). On this basis, defense counsel again moved for a mistrial. The State responded that defense counsel had not attempted to contact Streine for an interview and could have done so either directly or through the district attorney\u2019s office. Streine confirmed in chambers that he had not been contacted by or visited with defense counsel prior to the start of trial. The district court conditionally denied Defendant\u2019s motion but asked for briefing. Following briefing, the district court continued to reserve judgment on this issue.\nC. Discussion\n{42} Defendant alleges that the State violated its duty to disclose by not providing the defense with the reports relied upon by Dr. Zumwalt and Streine during their testimony at trial. Defendant argues that under Rule 5-501(A)(4) and Brady, these documents should have been disclosed to the defense. Defendant asserts that he was prejudiced by the State\u2019s non-disclosure of Streine\u2019s thirty-three-page report because it included important information regarding the weights of the bullets that was not included in the two-page document previously disclosed to the defense. Defendant argues that because Streine\u2019s report was not disclosed, he was unable to effectively cross-examine Streine.\n{43} On review, a defendant bears the burden of proving he was prejudiced by nondisclosure of evidence. State v. Hernandez, 1993-NMSC-007, \u00b6 63, 115 N.M. 6, 846 P.2d 312. When evidence is disclosed for the first time during trial, we\nmust consider the following factors\nto determine whether the error is reversible: (1) whether the State 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.\nState v. Mora, 1997-NMSC-060, \u00b6 43, 124 N.M. 346, 950 P.2d 789, abrogation on other grounds recognized by Kersey v. Hatch, 2010-NMSC-020, \u00b6 17, 148 N.M. 381, 237 P.3d 683.\n{44} As a preliminary matter, we must note that Defendant failed to designate the toxicology report and ballistics report as exhibits under Rule 12-212(A) NMRA, a fact noted by the State in oral argument. The absence of these documents in the record detracts from Defendant\u2019s claims regarding their importance. See State v. Garcia, 1978-NMCA-109, \u00b6 4, 92 N.M. 730, 594 P.2d 1186 (stating that \u201cthe burden is on the appellant... to provide the necessary appellate record\u201d of transcript and exhibits).\n{45} Under Rule 5-501(A)(4), the State has a duty to disclose \u201cany results or reports of . .. scientific tests or experiments ... made in connection with the particular case, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known to the prosecutor.\u201d If a party discovers additional material subject to disclosure after its initial disclosure, that party must give written notice to the other party of the existence of the additional materials. See Rule 5-505(A) NMRA.\n{46} The record in this matter reflects that the defense requested discovery under Rule 5-501 on at least two occasions. On March 9, 2010, the public defender entered an appearance on behalf of Defendant in the magistrate court matter, which was bound over to district court, and requested timely disclosure of the materials enumerated in Rule 5-501. On May 12, 2010, the public defender entered an appearance on behalf of Defendant in the district court proceeding and made the same request for discovery. Both requests were accompanied with a demand for the preservation of \u201coriginal and edited notes, reports, memoranda, summaries or any other records related in any way to defendant.\u201d\n{47} The toxicology report relied upon by Dr. Zumwalt and the ballistics report relied upon by Streine would qualify as scientific tests or experiments. Although the State characterizes Streine\u2019s report as case notes, the report was contemplated in the defense\u2019s request to preserve original and edited notes and reports. Since both Dr. Zumwalt and Streine were employed by the State at the time of the trial, the toxicology and ballistics reports are presumed to be within the control of the prosecutor. See Hernandez, 1993-NMSC-007, \u00b6 63 (\u201cInformation within the custody or control of an agent of the State is presumed to be within the control of the prosecutor.\u201d). In addition, the reports could have become known to the prosecutor through \u201cthe exercise of due diligence.\u201d Rule 5-501(A)(4). Therefore, we conclude that under the first prong of Mora, the State breached its duty to disclose. 1997-NMSC-060, \u00b6 43.\n{48} Under the second prong of Mora, we conclude that the toxicology and ballistics reports were material. The toxicology report was material because it was relevant to the issue of whether Victim resisted Defendant\u2019s attempt to kidnap him. The ballistics report was material because it was relevant to the issue ofwho fired the shots that killed Victim.\n{49} Although we believe that the defense should have been provided the reports relied upon by Dr. Zumwalt and Streine, we hold under the third prong of Mora that Defendant did not suffer any prejudice from the State\u2019s failure to disclose. Id. Defendant makes no assertion as to how any difference in the reports used at trial and those provided during discovery would have changed the outcome of his case. As discussed, the toxicology report would not have materially altered his defense. The second ballistics report, which apparently contained specific bullet weights, would not have changed the outcome of Defendant\u2019s murder conviction. Regardless of the bullet weights, which would presumably establish which gun actually killed Victim, the jury had ample evidence to convict Defendant of first-degree murder, even if the bullets did not come from his gun. S'eeNMSA 1978, \u00a7 30-1-13 (1972) (\u201cA person may be charged with and convicted of the crime as an accessory if he procures, corxnsels, aids or abets in its commission and although he' did not directly commit the crime . . . .\u201d); State v. Carrasco, 1997-NMSC-047, \u00b6 6, 124 N.M. 64,946 P.2d 1075 (\u201cA person who aids or abets in the commission of a crime is equally culpable as the principal. Aiding and abetting is not a distinct offense and it carries the same punishment as a principal.\u201d (internal citation omitted)). Finally, as noted in State v. Hovey, 1987-NMSC-080, \u00b6 10, 106 N.M. 300, 742 P.2d 512, a mistrial is not appropriate where the raw data relied upon by the expert at trial was available to defense counsel and defense counsel failed to request it.\n{50} Under the fourth prong of Mora, we conclude that the district court timely cured the State\u2019s failure to disclose. 1997-NMSC-060, \u00b6 43. Defense counsel acknowledged talking with Streine on a break from trial and asking him about the weight of the bullets. Nevertheless, we are concerned about the amount of time defense counsel had to review this evidence at trial. The record reflects that following Defendant\u2019s objection, the district court recessed for approximately fifty-three minutes, of which about thirty-six minutes was spent in chambers with the attorneys arguing about the non-disclosure. Therefore, defense counsel only had around 17 minutes to meet with Streine and review Streine\u2019s notes. In most circumstances, this would not be a sufficient amount of time to read and digest lengthy scientific documentation and to prepare an adequate cross-examination.\n{51} The foregoing concern notwithstanding, defense counsel should have asked for more information from the State. In fact, it is a common practice for attorneys to ask experts for the underlying notes or reports from experts. We take this opportunity to stress that defense attorneys are entitled to go to the OMI independently, without authorization from the State, and to interview OMI personnel. As a matter of practice, medical examiners will freely talk to defense counsel. This is part of the job of a medical investigator. Although there is always a risk of prejudice in not disclosing such evidence, in this case we conclude that Defendant was not prejudiced by the non-disclosure of the expert reports.\nVI. THERE WAS NO CUMULATIVE ERROR\n{52} Defendant argues that he did not receive a fair trial, and therefore his convictions should be reversed due to cumulative error. In support of his claim of cumulative error, Defendant merely repeats the arguments raised in his appeal.\n{53} \u201cThe doctrine of cumulative error applies when multiple errors, which by themselves do not constitute reversible error, are so serious in the aggregate that they cumulatively deprive the defendant of a fair trial.\u201d State v. Roybal, 2002-NMSC-027, \u00b6 33, 132 N.M. 657, 54 P.3d 61. As discussed in the previous sections, the errors committed by the district court were harmless, and thus do not call into question the decision of the jury. We hold that there was no cumulative error.\nVII. DEFENDANT HAS NOT ESTABLISHED THAT DEFENSE COUNSEL WAS INEFFECTIVE\n{54} Defendant argues that his counsel at trial was constitutionally ineffective under the record established in this case. Defendant asserts that defense counsel demonstrated deficient performance in failing to interview or investigate the State\u2019s expert witnesses, including Dr. Zumwalt and Streine. Defendant claims that he was prejudiced by defense counsel\u2019s failure to investigate because Dr. Zumwalt and Streine\u2019s testimonies undermined the defense\u2019s theory of the case. In particular, Defendant claims that Streine\u2019s testimony undermined his attempt to rebut the testimony of eyewitness Laureles, who testified that both Defendant and Co-defendant were shooters. He also noted that Dr. Zumwalt\u2019s testimony was important to deciding the issue of whether the victim\u2019s acts were voluntary or coerced.\n{55} \u201cWhen a claim of ineffective assistance of counsel is first raised on direct appeal, we evaluate the facts that are part of the record.\u201d Roybal, 2002-NMSC-027, \u00b6 19. In evaluating ineffective assistance of counsel claims, New Mexico follows the test established in Strickland v. Washington, 466 U.S. 668, 687 (1984). Roybal, 2002-NMSC-027, \u00b6 19. The defendant must first show that counsel\u2019s performance fell below that of a reasonably competent attorney. Strickland, 466 U.S. at 687. The defendant must then show that he was prejudiced by counsel\u2019s deficient performance. Id. \u201cA prima facie case for ineffective assistance of counsel is not made if there is a plausible, rational strategy or tactic to explain the counsel\u2019s conduct.\u201d Lytle v. Jordan, 2001-NMSC-016, \u00b6 26, 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted). \u201c[I]n order to satisfy the prejudice prong, it is necessary to show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d Patterson v. LeMaster, 2001-NMSC-013, \u00b6 28, 130 N.M. 179, 21 P.3d 1032 (internal quotation marks and citations omitted).\n{56} Defendant has failed to make aprima facie case of ineffective assistance of counsel. The record before us supports a showing that defense counsel made a strategic decision not to interview Dr. Zumwalt and Streine. Any information that was likely to be gleaned from interviewing these witnesses would unlikely be helpful to Defendant\u2019s case, or otherwise change the outcome of his convictions. We can safely presume that defense counsel was apprised of this and made a tactical decision to forgo the interviews. \u201cOn appeal, we will not second guess the trial strategy and tactics of the defense counsel.\u201d State v. Gonzales, 1992-NMSC-003, \u00b6 32, 113 N.M. 221, 824 P.2d 1023, overruled on other grounds by State v. Montoya, 2013-NMSC-020, \u00b6 2, 306 P.3d 426.\n{57} Defendant argues that \u201cNo plausible, rational strategy explains counsel\u2019s conduct.\u201d He states that defense counsel was surprised by the testimonies of Dr. Zumwalt and Streine and that his counsel\u2019s failure to contact or interview either witness served no purpose to the defense. This argument is speculative and lacks support in the record. \u201cWithout such prima facie evidence, the Court presumes that defense counsel\u2019s performance fell within the range of reasonable representation.\u201d State v. Arrendondo, 2012-NMSC-013, \u00b6 38, 278 P.3d 517. Even if we were to assume that defense counsel was deficient, Defendant cannot demonstrate prejudice.\n{58} To demonstrate prejudice, Defendant must show that had his counsel interviewed Dr. Zumwalt and Streine and obtained the toxicology and ballistics reports they relied upon, the result of his trial would have been different. Defendant cannot make that showing. There is sufficient evidence in the record to support Defendant\u2019s conviction for murder. Laureles and another eyewitness testified to their direct observations of the shooting, and additional witnesses testified in a corroborative manner regarding events leading to and immediately following the shooting.\n{59} Defendant makes two other ineffective assistance of counsel claims, namely that defense counsel\u2019s failure to interview witnesses negatively affected plea bargaining and that his counsel did not create an adequate record regarding witness use immunity for Co-defendant. Both arguments lack support in the record. Defendant\u2019s argument regarding plea bargaining is purely speculative. As noted by Defendant, the record does not reflect the history of any plea negotiations. We decline to consider Defendant\u2019s argument that his attorney did not create an adequate record because Defendant cites no authority in support of this argument. See In re Adoption of Doe, 1984-NMSC-024, \u00b6 2, 100 N.M. 764, 676 P.2d 1329 (holding that an appellate court will not consider an issue if no authority is cited in support of the issue).\n{60} Because the record is not sufficient to establish whether the actions taken by defense counsel were reasonable, \u201cthis Court prefers that these claims be brought under habeas corpus proceedings so that the defendant may actually develop the record with respect to defense counsel\u2019s actions.\u201d Arrendendo, 2012-NMSC-013, \u00b6 38.\nCONCLUSION\n{61} We affirm Defendant\u2019s convictions for first-degree murder and conspiracy to commit first-degree murder. We vacate Defendant\u2019s convictions for conspiracy to commit kidnapping and conspiracy to commit robbery on double jeopardy grounds. We remand to the district court to re-sentence Defendant accordingly.\n{62} IT IS SO ORDERED.\nBARBARA J. VIGIL, Chief Justice\nWE CONCUR:\nPETRA JIMENEZ MAES, Justice\nRICHARD C. BOSSON, Justice\nEDWARD L. CH\u00c1VEZ, Justice\nCHARLES W. DANIELS, Justice\nThe voluntariness of the victim\u2019s acts is relevant to the first element of kidnapping, which requires the jury to find that the defendant took or restrained the victim by force, intimidation, or deception. See UJI14-403 NMRA.\nDefendant also argues that his counsel was ineffective for failing to raise double jeopardy. This claim is moot. Because we vacate Defendant\u2019s convictions for conspiracy to commit robbery and conspiracy to commit first-degree kidnapping, Defendant cannot demonstrate prejudice, thus invalidating his claim of ineffective assistance of counsel.", "type": "majority", "author": "VIGIL, Chief Justice." } ], "attorneys": [ "Jorge A. Alvarado, Chief Public Defender Steven James Forsberg, Assistant Appellate Defender Albuquerque, NM", "for Appellant", "Gary K. King, Attorney General Ann M. Harvey, Assistant Attorney General Santa Fe, NM", "for Appellee" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMSC-017\nFiling Date: June 9, 2014\nDocket No. 33,864\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. NIEVES SONNY ORTEGA, Defendant-Appellant.\nJorge A. Alvarado, Chief Public Defender Steven James Forsberg, Assistant Appellate Defender Albuquerque, NM\nfor Appellant\nGary K. King, Attorney General Ann M. Harvey, Assistant Attorney General Santa Fe, NM\nfor Appellee" }, "file_name": "0181-01", "first_page_order": 197, "last_page_order": 212 }