{ "id": 1590205, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Floyd SANTILLANES, Defendant-Appellant", "name_abbreviation": "State v. Santillanes", "decision_date": "1990-03-15", "docket_number": "No. 10921", "first_page": "781", "last_page": "785", "citations": [ { "type": "official", "cite": "109 N.M. 781" }, { "type": "parallel", "cite": "790 P.2d 1062" } ], "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": "92 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557080 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/92/0001-01" ] }, { "cite": "89 N.M. 194", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866147 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0194-01" ] }, { "cite": "100 N.M. 726", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588540 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/nm/100/0726-01" ] }, { "cite": "486 U.S. 153", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6212318 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/us/486/0153-01" ] }, { "cite": "104 N.M. 614", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594992 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/104/0614-01" ] }, { "cite": "87 N.M. 279", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835934 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0279-01" ] }, { "cite": "92 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557035 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0450-01" ] }, { "cite": "93 L.Ed.2d 287", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "pin_cites": [ { "parenthetical": "alternative strategy was not plausible when there was no evidence indicating that a co-defendant might have stabbed the victim" } ], "opinion_index": 0 }, { "cite": "107 S.Ct. 313", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1986, "pin_cites": [ { "parenthetical": "alternative strategy was not plausible when there was no evidence indicating that a co-defendant might have stabbed the victim" } ], "opinion_index": 0 }, { "cite": "479 U.S. 914", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6441156, 6441477, 6442598, 6441671, 6442504, 6441255, 6441584, 6441363, 6440884, 6442357, 6441782, 6442227 ], "year": 1986, "pin_cites": [ { "parenthetical": "alternative strategy was not plausible when there was no evidence indicating that a co-defendant might have stabbed the victim" } ], "opinion_index": 0, "case_paths": [ "/us/479/0914-02", "/us/479/0914-05", "/us/479/0914-12", "/us/479/0914-07", "/us/479/0914-11", "/us/479/0914-03", "/us/479/0914-06", "/us/479/0914-04", "/us/479/0914-01", "/us/479/0914-10", "/us/479/0914-08", "/us/479/0914-09" ] }, { "cite": "782 F.2d 1521", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1552315 ], "opinion_index": 0, "case_paths": [ "/f2d/782/1521-01" ] }, { "cite": "516 F.2d 1072", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1132791 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/f2d/516/1072-01" ] }, { "cite": "769 F.2d 829", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 361066 ], "opinion_index": 0, "case_paths": [ "/f2d/769/0829-01" ] }, { "cite": "745 F.2d 1157", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 592956 ], "opinion_index": 0, "case_paths": [ "/f2d/745/1157-01" ] }, { "cite": "75 N.M. 757", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5375936 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/75/0757-01" ] }, { "cite": "100 N.M. 501", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588598 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nm/100/0501-01" ] }, { "cite": "391 N.E.2d 990", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "417 N.Y.S.2d 908", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1979, "opinion_index": 0 }, { "cite": "47 N.Y.2d 257", "category": "reporters:state", "reporter": "N.Y.2d", "case_ids": [ 4372415 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ny-2d/47/0257-01" ] }, { "cite": "681 F.Supp. 1019", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7399313 ], "opinion_index": 0, "case_paths": [ "/f-supp/681/1019-01" ] }, { "cite": "825 F.2d 835", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10549103 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/f2d/825/0835-01" ] }, { "cite": "78 L.Ed.2d 147", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "104 S.Ct. 161", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1983, "opinion_index": 0 }, { "cite": "464 U.S. 851", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6373316, 6372581, 6374724, 6374439, 6374232, 6372244, 6372403, 6373654, 6373495, 6374008, 6373821, 6372767 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/464/0851-05", "/us/464/0851-03", "/us/464/0851-12", "/us/464/0851-11", "/us/464/0851-10", "/us/464/0851-01", "/us/464/0851-02", "/us/464/0851-07", "/us/464/0851-06", "/us/464/0851-09", "/us/464/0851-08", "/us/464/0851-04" ] }, { "cite": "99 N.M. 674", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584654 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "1346" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0674-01" ] }, { "cite": "87 N.M. 503", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2835364 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0503-01" ] }, { "cite": "103 N.M. 33", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711314 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/103/0033-01" ] }, { "cite": "84 N.M. 151", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2763165 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0151-01" ] } ], "analysis": { "cardinality": 639, "char_count": 13206, "ocr_confidence": 0.795, "pagerank": { "raw": 1.6330291811234705e-07, "percentile": 0.6891828442507651 }, "sha256": "42a6b2509fe49bcb9417b202663e287df7318e4992c8347bfb1a44140f195e4d", "simhash": "1:a9f872582cc63a61", "word_count": 2102 }, "last_updated": "2023-07-14T16:43:28.780053+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and ALARID, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Floyd SANTILLANES, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nAPODACA, Judge.\nDefendant appeals his jury conviction for aggravated battery with a deadly weapon. He raises several issues on appeal, among them: (1) the trial court erred in denying his motion for a new trial based on ineffective assistance of counsel; and (2) the evidence was insufficient to support his conviction. Defendant\u2019s first issue is founded on his contention that a conflict of interest denied defendant effective assistance of counsel when trial counsel represented both defendant and defendant\u2019s brother, a co-defendant. We agree with defendant that an existing conflict of interest deprived him of his right to effective assistance of counsel under the United States Constitution Amendment VI. We thus reverse the trial court.\nWe must address the substantial evidence issue, since defendant would be afforded greater relief on appeal if this court determined the evidence was insufficient to support the conviction. See State v. Losolla, 84 N.M. 151, 500 P.2d 436 (Ct.App.1972) (if evidence is insufficient to support a conviction, cause is remanded with instructions to release defendant). Because we hold that there was sufficient evidence supporting the jury\u2019s verdict, we also examine defendant\u2019s claim that the trial court erred in denying his motion for new trial. Under the record in this appeal, we determine that the trial court erred in denying defendant\u2019s motion for new trial. We therefore remand for a new trial. Our disposition does riot require us to address defendant\u2019s remaining issues.\nDefendant and his brother, who apparently bear a strong resemblance as siblings, were involved in a fight with other persons. During the altercation, three victims were wounded; one victim was shot in the leg and two others were stabbed with a knife. Defendant and his brother were arrested. Defendant\u2019s brother was charged with the two stabbings and defendant was charged with the shooting.\nBoth of them retained Estevan Martinez as defense counsel. Immediately before trial, defendant\u2019s brother entered into a plea agreement under which he pled guilty to the two stabbings and swore under oath that he did not fire the weapon. After the plea, defendant\u2019s brother informed trial counsel that he had done the shooting. Trial counsel failed to inform the trial court or defendant about defendant\u2019s brother\u2019s admission. It was not until midway through defendant\u2019s, trial that trial counsel told defendant of the admission. At trial, Art Garcia, a witness, testified that he saw the fight and it was defendant\u2019s brother, not defendant, who fired the shot. Ruben Salazar, another witness, testified that, before trial, he met with defense counsel, defendant and defendant\u2019s brother. He stated defendant\u2019s brother wanted to confess that he had fired the shot, but that defense counsel told him not to say anything about the admission of defendant\u2019s brother, indicating that he was the one who had fired the shot.\nAt the hearing on the motion for new trial, defense counsel stated that, after the trial, defendant\u2019s brother signed an affidavit admitting he, not defendant, had fired the shot. Counsel also admitted that, to protect defendant\u2019s brother, he had to avoid calling him as a witness at defendant\u2019s trial. Defendant testified at the same hearing that he wanted to take the stand at the trial to deny firing any shot, but that defense counsel told him he did not want him to take the stand. Additionally, Dolores Salazar and Darlene Martinez testified at the hearing that defendant\u2019s brother told him he had fired the shot.\nIt is well established in New Mexico that trial counsel representing a defendant has a duty to avoid a conflict of interest. See State v. Talley, 103 N.M. 33, 702 P.2d 353 (Ct.App.1985). Our function in this appeal is to determine whether the joint representation by trial counsel created an actual conflict of interest, thus depriving defendant of effective assistance of counsel. In making this determination, we view the proceedings as a whole. Id. The standard we apply generally is whether counsel exercised the skill of a reasonably competent attorney. Id.\nWhen ineffective assistance of counsel is based on a conflict of interest, prejudice is presumed and need not be proved. State v. Aguilar, 87 N.M. 503, 536 P.2d 263 (Ct. App.1975) (a defendant is denied his constitutional right of effective assistance of counsel if his attorney represents two defendants with conflicting interests, without disclosing such conflicts and obtaining waivers). However, there must be an actual conflict of interest and not just a possibility of a conflict. State v. Robinson, 99 N.M. 674, 662 P.2d 1341, cert. denied, 464 U.S. 851, 104 S.Ct. 161, 78 L.Ed.2d 147 (1983). The test for determining the existence of an actual conflict is whether counsel \u201cactively represented conflicting interests\u201d that adversely affected his performance. Id. at 679, 662 P.2d at 1346. United States v. Abner, 825 F.2d 835 (5th Cir. 1987). United States v. Aiello, 681 F.Supp. 1019 (E.D.N.Y.1988), stated it differently. That case required that a defendant show some plausible defense might have been pursued but was not because it would be damaging to another\u2019s interest.\nIn People v. Macerola, 47 N.Y.2d 257, 417 N.Y.S.2d 908, 391 N.E.2d 990 (1979), the court held that where one attorney represented two defendants charged with the same crimes under circumstances similar to those in this case, a conflict existed, denying both defendants their right to counsel. Although this appeal does not involve two defendants charged with the same crime, we believe the rationale under Macer\u00f3la applies because the charges here stemmed from the same incident. New Mexico also has previously addressed the issue of conflict of interest in State v. Hernandez, 100 N.M. 501, 672 P.2d 1132 (1983). See also State v. Tapia, 75 N.M. 757, 411 P.2d 234 (1966).\nHernandez held that the conflict in question there was too slight to constitute an actual conflict of interest. The court emphasized there was, in effect, no joint representation by counsel because there was a time lapse of several months between the representation of the co-defendant and defendant. Co-defendant\u2019s attorney had ended his association with co-defendant several months before trial for defendant commenced. Id. Distinguishing Tapia, the court concluded that the co-defendant in Hernandez was subject to cross-examination by defendant.\nThe facts in this appeal lead us to a different result. We believe the interests of defendant and co-defendant here could not be effectively represented by one attorney. By attempting to establish a defense for co-defendant, trial counsel was forced to abandon strategy that could have been used to exonerate defendant. United States v. Auerbach, 745 F.2d 1157 (8th Cir.1984) (joint representation prevents attorney from using best efforts to prove innocence of defendant). In the interest of maintaining client confidentiality and avoiding perjury charges against co-defendant, trial counsel was unable to use co-defendant as a witness for defendant. In violation of the requirements recognized in Hernandez, co-defendant was not subject to cross-examination by defendant. Unlike the facts in Hernandez, trial counsel\u2019s joint representation of defendant and co-defendant here continued to the time defendant\u2019s trial began. At that juncture, it was difficult to escape the implication that defendant did the shooting. This was because co-defendant stated under oath he had not fired the shot that wounded the victim. This scenario impermissibly limited trial counsel\u2019s strategy.\nThe state argues that, at the hearing on defendant\u2019s motion for a new trial, the trial court believed defendant and his witnesses were liars. The state then reasons that, because the witnesses were unbelievable, shifting the blame of the shooting to co-defendant was not a plausible defense strategy. The state\u2019s basis for this argument is that if there was no plausible defense that would afford defendant a significant gain, there was no actual conflict.\nA plausible strategy need not be successful. United States v. Fahey, 769 F.2d 829 (1st Cir.1985); Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir.1975). The court in Foxworth refused to speculate on the effect the credibility of the witnesses would have on the defense strategy. When the defendant used a \u201cshifting blame\u201d strategy, Foxworth held it was a plausible strategy because there was medical evidence to show that the blame could possibly be shifted to someone other than defendant. Id. A \u201cshifting blame\u201d strategy is not plausible when there is no indication that a co-defendant committed the crime. Oliver v. Wainwright, 782 F.2d 1521 (11th Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986) (alternative strategy was not plausible when there was no evidence indicating that a co-defendant might have stabbed the victim).\nIn this appeal, the witnesses\u2019 credibility was not indicative of the success or failure of a plausible strategy, as the state would have us conclude. See Foxworth v. Wainwright. There was testimony at trial by a witness indicating that a \u201cshifting blame\u201d strategy could be used in an attempt to prove that co-defendant was the person who fired the shot. This witness had testified at trial that he actually saw co-defendant, not defendant, shoot the victims.\nAddressing the state\u2019s argument that the trial court disbelieved the witnesses, we conclude New Mexico law supports the proposition that an adversary can make more of evidence than the possibility envisioned by a judge. See State v. Orona, 92 N.M. 450, 589 P.2d 1041 (1979); State v. Romero, 87 N.M. 279, 532 P.2d 208 (Ct.App.1975). Thus, we hold that a new trial is required under the facts in this appeal, where defense counsel undertook to represent two co-defendants without disclosing the conflict or obtaining a waiver, and certain avenues of defense were precluded for defendant. See State v. Orona.\nThe state argues generally that defendant waived his conflict of interest claim. Specifically, the state claims there was a waiver because defendant participated in a devious scheme to clear both himself and his brother. We disagree.\nAt the hearing on defendant\u2019s motion for a new trial, defense counsel testified that defendant\u2019s brother had told him on the day of trial that he, not defendant, fired the shot. He also stated he had no recollection of specifically advising defendant that his brother confessed to the shooting. When the right to counsel is involved, the presumption is against waiver and loss of a fundamental right. State v. Hamilton, 104 N.M. 614, 725 P.2d 590 (Ct.App.1986). A waiver must be clearly shown on the record. Id. There is no indication in this appeal that defendant was aware of a conflict or that he even expressed a clear waiver of the conflict of interest claim. Additionally, a waiver of a right must be made knowingly and intelligently. Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); State v. Hamilton. There was no showing in the record that defendant made a knowing and intelligent waiver of the existing conflict of interest.\nFinally, we address defendant\u2019s contention that the evidence presented at trial was insufficient to support his conviction. See State v. Losolla. The test to determine sufficiency of evidence is whether substantial evidence exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to the conviction. State v. Brown, 100 N.M. 726, 676 P.2d 253 (1984). In testing the sufficiency of the evidence, we must view the evidence in the light most favorable to support the jury\u2019s verdict. Id. In this regard, it is true that there was conflicting evidence with respect to whether defendant or co-defendant was holding a gun when the victim was wounded. Where testimony is conflicting, the trier of fact must resolve the conflict. State v. Ellis, 89 N.M. 194, 548 P.2d 1212 (Ct.App.1976).\nThere was evidence showing that defendant was the person who shot the victim. Specifically, the victim testified he saw defendant aim a gun at him just before he was wounded: Although the victim may have mistaken defendant for co-defendant because of their resemblance, we hold this was substantial evidence nonetheless. See State v. Lankford, 92 N.M. 1, 582 P.2d 378 (1978).\nWe conclude there was an actual conflict of interest that denied defendant his right to effective assistance of counsel. We therefore hold that the trial court erred in denying defendant\u2019s motion for a new trial. We also hold that there was substantial evidence supporting the conviction, thus not requiring a dismissal of the charges against defendant.\nWe reverse defendant\u2019s conviction and remand for a new trial.\nIT IS SO ORDERED.\nDONNELLY and ALARID, JJ., concur.", "type": "majority", "author": "APODACA, Judge." } ], "attorneys": [ "Hal Stratton, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Jacquelyn Robins, Chief Public Defender, Linda Yen, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "790 P.2d 1062\nSTATE of New Mexico, Plaintiff-Appellee, v. Floyd SANTILLANES, Defendant-Appellant.\nNo. 10921.\nCourt of Appeals of New Mexico.\nMarch 15, 1990.\nHal Stratton, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nJacquelyn Robins, Chief Public Defender, Linda Yen, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0781-01", "first_page_order": 817, "last_page_order": 821 }