{ "id": 1586487, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Ronnie Van WHITE, Defendant-Appellant", "name_abbreviation": "State v. White", "decision_date": "1984-03-29", "docket_number": "No. 7324", "first_page": "310", "last_page": "315", "citations": [ { "type": "official", "cite": "101 N.M. 310" }, { "type": "parallel", "cite": "681 P.2d 736" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "525 S.W.2d 20", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10119143 ], "opinion_index": 0, "case_paths": [ "/sw2d/525/0020-01" ] }, { "cite": "97 N.M. 670", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555168 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0670-01" ] }, { "cite": "95 N.M. 433", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575611 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/95/0433-01" ] }, { "cite": "416 U.S. 637", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 84180 ], "weight": 3, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/416/0637-01" ] }, { "cite": "94 N.M. 500", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573073 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/94/0500-01" ] }, { "cite": "86 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824335 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/86/0039-01" ] }, { "cite": "80 N.M. 364", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363538 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0364-01" ] }, { "cite": "100 N.M. 532", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588560 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/100/0532-01" ] }, { "cite": "446 U.S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182598 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0335-01" ] }, { "cite": "504 F.2d 220", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 109521, 3685966 ], "opinion_index": 0, "case_paths": [ "/f2d/504/0220-01", "/us-app-dc/164/0151-01" ] }, { "cite": "709 F.2d 160", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11322307 ], "opinion_index": 0, "case_paths": [ "/f2d/709/0160-01" ] }, { "cite": "418 N.Y.S.2d 295", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1979, "opinion_index": 0 }, { "cite": "391 N.E.2d 1274", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "47 N.Y.2d 287", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 4371884 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ny-2d/47/0287-01" ] }, { "cite": "652 P.2d 595", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10432318 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/p2d/652/0595-01" ] }, { "cite": "97 N.M. 232", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555133 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/nm/97/0232-01" ] }, { "cite": "99 N.M. 348", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584550 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/99/0348-01" ] }, { "cite": "100 N.M. 563", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588693 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "1297" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0563-01" ] }, { "cite": "97 N.M. 346", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555213 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/97/0346-01" ] } ], "analysis": { "cardinality": 804, "char_count": 15654, "ocr_confidence": 0.772, "pagerank": { "raw": 1.242328959090844e-07, "percentile": 0.6082516779935818 }, "sha256": "ae92913ec5061e6e0cc5619e02d22778afb80ff6565f7a9108751f59e7ac3516", "simhash": "1:9358cdbae15c9dc0", "word_count": 2518 }, "last_updated": "2023-07-14T22:42:52.435207+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "NEAL and ALARID, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Ronnie Van WHITE, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nConvicted of three counts of trafficking in cocaine and heroin and one count of possession of marijuana with intent to distribute contrary to NMSA 1978, Sections .30-31-20(A)(2) & (B)(1) and 30-31-22(A)(1)(a) (Repl.Pamp.1980), defendant appeals, contending 1) ineffective assistance of counsel, and 2) prosecutorial misconduct. Issues raised in the docketing statement and not argued on appeal are deemed abandoned. We affirm.\nThe case involved witnesses who testified to the surveillance of the defendant, supervision of \u201ccontrolled buys\u201d from defendant by paid narcotics informers, and a search of defendant\u2019s residence. There was extensive cross-examination of all witnesses.\nIneffective Assistance of Counsel\nClaims of ineffective assistance of counsel may be raised for the first time on appeal. State v. Lucero, 97 N.M. 346, 639 P.2d 1200 (Ct.App.1981).\nThe factual posture which gives rise to this claim is set forth in In re Contempt of Court of Patricia Palafox and Richard Esper, 100 N.M. 563, 673 P.2d 1296, 1297 (1983):\nRonnie Van White (White) was indicted in Dona Ana County, New Mexico, for drug related offenses. White retained Richard D. Esper (Esper), a member of the bar of Texas and some other jurisdictions, to represent him. Because Esper is not a member of the New Mexico Bar, he contacted Patricia L. Palafox (Palafox), a member of the New Mexico Bar, and requested her to associate with him in order for him to appear in New Mexico and represent White. Palafox agreed and entered a joint appearance in the case with Esper. However, at no time during the proceedings did Palafox appear in trial court with Esper, nor did the trial court require her to do so. Apparently, Palafox was never notified by either the trial court, the clerk, or Esper of any pre-trial hearings or of the trial.\nThereafter, White was convicted and Esper advised him to obtain public defender representation for his appeal because White had not paid Esper and could not afford retained counsel for his appeal. Neither Palafox nor Esper prepared the docketing statement for White\u2019s appeal, although Esper did make some attempts to assist the public defender.\nNMSA 1978, Crim.P.Rule 53.1 (Cum. Supp.1983) (emphasis added), provides in pertinent part:\n(a) Nonadmitted counsel. [Counsel not admitted to practice law in New Mexico, but who are licensed to practice law and in good standing in another state or territory, may participate in proceedings before New Mexico courts only in association with counsel licensed to practice law and in good standing in New Mexico, who, unless excused by the court, must be present in person in all proceedings before the court. New Mexico counsel must sign the first motion or pleading and New Mexico counsel\u2019s name and address must appear on all subsequent pleadings.\nIn addition, NMSA 1978, Crim., Child. Ct., Dom.Rel. & W/C App. Rule 205(b) (Spec.Supp.1983) provides:\n(b) Attorney responsible. Trial counsel shall be responsible for preparing and filing the docketing statement unless relieved by order of the appellate court.\nBoth Esper and Palafox agree that they did not comply with Rule 53.1, although they argue that since the trial court did not require Palafox to appear or insist upon her name being on subsequent pleadings, they should not be held in contempt of court for failure to follow the Rules of Criminal Procedure. In addition, Esper and Palafox also agree that they did not comply with Rule 205(b) requiring trial counsel to prepare the docketing statement for White\u2019s appeal. Esper, however, argues that he should not be held in contempt of court for failure to comply with Rule 205(b) since he' was not aware of it and he had been informed by the appellate public defender that he would prepare and file the docketing statement. We disagree with both arguments.\nBoth Rule 53.1 and Rule 205(b) are clear and unequivocal. Counsel is required to follow both rules. After hearing the explanations of counsel, we determine that both Palafox and Esper are in contempt of court for not complying with Rule 53.1 and Rule 205(b). Cf. State v. Fulton, 99 N.M. 348, 657 P.2d 1197 (Ct.App.1983).\nWhile the Court commends both Esper and Palafox for their candor at the hearing before this Court, we feel compelled to impose a fine for willful failure to follow the rules.\nDefendant does not assert that he was prejudiced by any particular misfeasance or nonfeasance at trial by his unlicensed attorney. Defendant argues that, under the circumstances of this case, his representation by Esper was per se ineffective.\nThe State argues that a per se rule should not be applied in this case. It states:\nThe fact that local counsel did not attend the trial cannot in itself compel the conclusion that the defense was not conducted with the skill, judgment and diligence of a reasonably competent defense attorney. State v. Orona, 97 N.M. 232, 638 P.2d 1077 (1982). Having demonstrated neither Mr. Esper\u2019s incompetence nor prejudice to his defense, defendant\u2019s claim must fail.\nIn Wilson v. People, 652 P.2d 595 (Colo. 1982), the court was presented with the following question: \u201cIs a criminal defendant\u2019s right to counsel violated where the accused unwittingly retains a representative for trial who is in all respects qualified to practice law in Colorado yet remains unlicensed due to the failure to take the mandatory oath for admission?\u201d The court distinguished People v. Felder, 47 N.Y.2d 287, 391 N.E.2d 1274, 418 N.Y.S.2d 295 (1979), where the defendants in Felder were represented by a layman masquerading as a lawyer. In Felder, a harmless error argument was rejected. In Wilson, the \u201cattorney\u201d had graduated from an accredited law school and passed the Colorado bar exam. However, he had failed to take the mandatory oath for admission. The court held:\nIn such circumstances, we conclude that the representation provided does not constitute a per se denial of the accused\u2019s right to counsel. Rather, the proper determination to be made is whether fundamental principles of due process were denied as a result of the representation.\nIn Wilson, the court found no denial of due process rights and, thus, no prejudice.\nIn Solina v. United States, 709 F.2d 160 (2d Cir.1983), the court limited its decision to \u201csituations where, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character____\u201d In analyzing the ineffectiveness of counsel claim, the court interpreted the Sixth Amendment to require \u201clicensed\u201d counsel. However, the court expressly stated that it does not intend that \u201cany technical defect in the licensed status of a defendant\u2019s representative would amount to a violation of the Sixth Amendment.\u201d\nIn United States v. Butler, 504 F.2d 220 (D.C.Cir.1974), the court held that \u201c[sjtanding alone, the mere fact of a trial attorney\u2019s nonmembership in the local bar is not necessarily sufficient to find that the right to effective counsel was breached.\u201d In Butler, there were several prejudicial considerations which the court listed in finding the defendant\u2019s trial counsel ineffective. Counsel had misrepresented his membership in the bar to the court, to his law firm, and to his clients; counsel had no previous trial experience; and counsel made significant errors at trial. Although the errors made at trial were tactical, those tactical errors became relevant when viewed in context with the other considerations.\nComparing Butler with the present case, Esper made no misrepresentations as to his bar membership status and he apparently had extensive trial experience. Defendant has pointed to no errors, tactical or otherwise.\nIn this case, no more than a mere \u201ctechnical defect\u201d can be found. Esper was a member of the Texas bar. He had tried criminal cases in both state and federal courts outside the State of Texas. He retained local counsel, in Patricia Palafox. Defendant alleges no errors by counsel except that local counsel did not attend the trial, as required by NMSA 1978, Crim.P. Rule 53.1(a) (Cum.Supp.1983). Although local counsel was not excused from attending court proceedings in this case, under Rule 53.1, the trial court, in its discretion, could have excused Palafox from attending defendant\u2019s trial. This amounts to no more than a technical defect, absent any prejudicial considerations such as those found in Butler. There was no per se ineffective assistance of counsel in this case.\nArthur Lee Williams, a paid police informant, testified on redirect examination that Esper had been his brother\u2019s attorney in another drug case. Defendant objected on relevancy grounds. An off-the-record bench conference was then held. The question of any conflict of interest was apparently not raised. The comment by Williams seemed spontaneous and not to have been elicited by the prosecutor. Nothing further is mentioned concerning Esper\u2019s representation of Williams\u2019 brother.\nDefendant argues that his trial counsel was ineffective because Esper had a potential conflict of interest. Defendant points out that he realizes that he must demonstrate an actual conflict of interest adversely affecting his counsel\u2019s performance in order to sustain a claim of ineffective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). However, defendant argues that the trial court\u2019s failure to conduct an inquiry into whether or not an actual conflict existed, \u201cconstituted a failure to protect Defendant\u2019s right to a fair trial and effective representation.\u201d Defendant argues further that any prejudice in this case should be presumed.\nIn the present case, there was nothing to indicate a conflict of interest. See State v. Martinez, 100 N.M. 532, 673 P.2d 509 (Ct. App.1983) (once a client becomes a former client, a lawyer .is not barred forevermore from taking positions adverse to that client). There was no requirement that the trial court investigate a conflict of interest in this case.\nProsecutorial Misconduct\nDefendant complains that two lines of argument by the prosecutor, in her closing, were improper. In defendant\u2019s closing argument, defense counsel argued that he could not tell the jury that defendant is not guilty of a crime, considering all the marijuana that was found in defendant\u2019s possession. Defense counsel said he did not want to insult the jury\u2019s intelligence by arguing that they should acquit defendant of the marijuana charge. Defense counsel then asked the jury to return a verdict of guilty of the marijuana charge, but not guilty of the heroin and cocaine charges.\nIn rebuttal, the prosecutor began to argue that there is a defense strategy of making one concession, hoping to sway the jury. Defense counsel interrupted with an objection that the prosecutor\u2019s argument was \u201cimproper and outside the record.\u201d The objection was overruled. The prosecutor then continued her argument that it is a good strategy in public speaking to make concessions to something that is not favorable to your position, hoping that you have persuaded people with your veracity and frankness, in order to sway them to believe your other points.\nCounsel is entitled to a reasonable measure of latitude in closing remarks to a jury. State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969). A trial court has wide discretion in dealing with and controlling counsel\u2019s argument to the jury, and there is no error absent an abuse of the court\u2019s discretion or prejudice to the defendant. Pace. The question presented on appeal with regard to improper comments by the prosecutor during closing argument is whether the comments served to deprive the defendant of a fair trial. State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974). See also State v. Ruffino, 94 N.M. 500, 612 P.2d 1311 (1980).\nDefendant contends that the prosecutor\u2019s remarks were similar to those deemed improper in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). There, the prosecutor said in closing: \u201c \u2018They [the respondent and his counsel] said they hope that you find him not guilty. I quite frankly think that they hope that you find him guilty of something a little less than first-degree murder.\u2019 \u201d In DeChristoforo, an admonishing instruction was deemed to have cured any error.\nHowever, the remark here was very different. The prosecutor made no improper reference to matters outside the record. She was entitled to fairly respond to defense counsel\u2019s arguments. State v. Montoya, 95 N.M. 433, 622 P.2d 1053 (Ct. App.1981). Reference to defendant\u2019s defense as a strategy is within the latitudes allowable in closing argument. Ruffino. Even assuming the comment was improper, the defendant\u2019s failure to request an admonishing instruction forecloses review of that claim. State v. Casteneda, 97 N.M. 670, 642 P.2d 1129 (Ct.App.1982).\nDefendant also complains of a second argument made by the prosecutor in rebuttal closing. \u201cThe defense says that they wouldn\u2019t be clamoring on Artie Williams [paid police informant] if he were a credible person. Well, of course, they would. They have to have a defense. We wouldn\u2019t be here if there had been another ****\u2019\u2019 The defendant objected and requested a mistrial on the basis of improper prosecutorial argument. After a bench discussion off-the-record, defendant\u2019s objection was sustained. The prosecutor then continued her argument: \u201cLadies and gentlemen, what I wanted to say, basically, the defense is grasping at straws. They don\u2019t have much of a defense. They\u2019re making an argument. That\u2019s the defense attorney\u2019s job, is to make an argument. And, he made a good argument. * * * \u201d The defendant objected again, and the jury was admonished to disregard the prosecutor\u2019s comment. The predicate for this rebuttal argument was the defendant\u2019s comments, in closing, questioning the credibility of the testimony of Williams. The prosecutor, herself, commented on credibility problems of the informants in her first closing comments.\nDefendant argues that a prosecutor\u2019s argument which attacks defense counsel for taking a position or offering a defense of the accused is manifestly improper. Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App.1975). In Anderson, the prosecutor went far afield in contrast to this case. In Anderson, the prosecutor asserted that defense counsel did not \u201chave guts enough\u201d to argue that his client was not guilty, implied that rules concerning argument were different for the prosecutor than for the defense, criticized defense counsel for making frivolous objections, and argued that defense counsel was trying to pull the wool over the jurors\u2019 eyes and was going to lie to the jury. There, the court held that a mistrial was the only remedy.\nDefendant also argues that the prosecutor\u2019s argument was improper because she inserted her opinion as to the guilt of the accused. NMSA 1978, Code of Prof. Resp.R. 7-106(C)(4) (Repl.Pamp.1982). In context, this was not an opinion of the prosecutor. It was a fair comment in rebuttal to defendant\u2019s argument. Montoya; Ruffino.\nAffirmed.\nIT IS SO ORDERED.\nNEAL and ALARID, JJ., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Paul Bardacke, Atty. Gen., William Lazar, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Janet Clow, Chief Public Defender, J. Thomas Sullivan, Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "681 P.2d 736\nSTATE of New Mexico, Plaintiff-Appellee, v. Ronnie Van WHITE, Defendant-Appellant.\nNo. 7324.\nCourt of Appeals of New Mexico.\nMarch 29, 1984.\nCertiorari Denied April 27, 1984.\nPaul Bardacke, Atty. Gen., William Lazar, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJanet Clow, Chief Public Defender, J. Thomas Sullivan, Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0310-01", "first_page_order": 344, "last_page_order": 349 }