{ "id": 4246562, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Martin ARAGON, Defendant-Appellant", "name_abbreviation": "State v. Aragon", "decision_date": "2009-07-30", "docket_number": "No. 27,615", "first_page": "26", "last_page": "38", "citations": [ { "type": "official", "cite": "147 N.M. 26" }, { "type": "parallel", "cite": "216 P.3d 276" }, { "type": "parallel", "cite": "2009-NMCA-102" } ], "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": "2008-NMSC-061", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243097 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0232-01" ] }, { "cite": "173 P.3d 764", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "143 N.M. 157", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2007-NMCERT-011", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2007-NMCA-130", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692715 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 17" }, { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0699-01" ] }, { "cite": "2007-NMSC-004", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3669143 ], "weight": 4, "pin_cites": [ { "page": "\u00b6\u00b6 11, 28" }, { "page": "\u00b6 21" } ], "opinion_index": 0, "case_paths": [ "/nm/141/0148-01" ] }, { "cite": "116 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727672 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "169", "parenthetical": "\"[T]he admission of expert testimony or other scientific evidence is peculiarly within the sound discretion of the trial court and will not be reversed absent a showing of abuse of that discretion.\"" }, { "page": "205", "parenthetical": "\"[T]he admission of expert testimony or other scientific evidence is peculiarly within the sound discretion of the trial court and will not be reversed absent a showing of abuse of that discretion.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0156-01" ] }, { "cite": "2007-NMCA-012", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3670908 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 14" }, { "page": "\u00b6 15" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0930-01" ] }, { "cite": "127 N.M. 20", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 257742 ], "weight": 8, "pin_cites": [ { "page": "\u00b6 10" }, { "page": "\u00b6 10" }, { "page": "\u00b6 16" }, { "page": "\u00b6 10" }, { "parenthetical": "describing the final factor as \"the prejudice to the movant in denying the motion\"" }, { "page": "\u00b6 43" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0020-01" ] }, { "cite": "509 U.S. 579", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355769 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/us/509/0579-01" ] }, { "cite": "2009-NMCA-027", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4243417 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 39" } ], "opinion_index": 0, "case_paths": [ "/nm/145/0719-01" ] }, { "cite": "2004-NMSC-036", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224634 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 22, 24" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0533-01" ] }, { "cite": "2007-NMSC-039", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3692694 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 9" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0107-01" ] }, { "cite": "2001-NMSC-016", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352669 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 34" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0198-01" ] }, { "cite": "2002-NMSC-024", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 260726 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 48" } ], "opinion_index": 0, "case_paths": [ "/nm/132/0576-01" ] }, { "cite": "115 N.M. 6", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725504 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/nm/115/0006-01" ] }, { "cite": "1997-NMCA-101", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 17518 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0084-01" ] }, { "cite": "2007-NMCA-107", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3693161 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 22, 32" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0377-01" ] }, { "cite": "2001-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183086 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 36" }, { "page": "\u00b636" }, { "page": "\u00b636" }, { "page": "\u00b6 36" }, { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0022-01" ] }, { "cite": "2006-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3671204 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 33" } ], "opinion_index": 0, "case_paths": [ "/nm/140/0644-01" ] }, { "cite": "2007-NMCA-160", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3783538 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0096-01" ] }, { "cite": "2008-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 3784610 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 33" }, { "page": "\u00b6\u00b67-8" }, { "page": "\u00b6 36" } ], "opinion_index": 0, "case_paths": [ "/nm/143/0373-01" ] } ], "analysis": { "cardinality": 1352, "char_count": 44227, "ocr_confidence": 0.662, "pagerank": { "raw": 5.305043392786989e-08, "percentile": 0.33506663902026723 }, "sha256": "66b09289fc4f6a5f7efb82d6eeaefe9928b401e98e3e3245239c70d56e93fa34", "simhash": "1:8b6ac076514611f4", "word_count": 7080 }, "last_updated": "2023-07-14T21:21:31.817470+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: RODERICK T. KENNEDY and TIMOTHY L. GARCIA, Judges." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Martin ARAGON, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nCASTILLO, Judge.\n{1} Defendant was convicted on one count of child abuse resulting in great bodily harm. On appeal, he challenges the effectiveness of his trial counsel on several grounds. Based on counsel\u2019s failure to interview the State\u2019s experts and obtain or consult with an expert, we hold that Defendant has made a prima facie case for ineffective assistance of counsel. We remand those two issues to the trial court for further factual development in an evidentiary hearing. We further hold that Defendant failed to make a prima facie ease for ineffective assistance of counsel on the remaining claims.\nI. BACKGROUND\n{2} On December 30, 2004, Defendant was indicted by grand jury on one count of abuse of a child resulting in great bodily harm, contrary to NMSA 1978, Section 30-6-1 (2004) (amended 2005). The indictment arose from the events of December 8, 2004. On that day, it is undisputed that Defendant was left alone with Child, who was Defendant\u2019s four-month-old son. When Child\u2019s mother returned an hour and a half later, Defendant met her outside. He told her that Child appeared to have been choking and that he shook Child in an attempt to resuscitate him. Child\u2019s condition deteriorated overnight, and he was taken to a clinic the following day. Mother told the doctor at the clinic, Dr. Olmstead, that Child\u2019s eighteen-month-old brother had fallen onto Child.\n{3} Dr. Olmstead testified that she evaluated Child and that while in her presence, Child suffered a seizure and stopped breathing. Dr. Olmstead then called for emergency transport because she was \u201cconcerned about ... [the] imminent death if this child did not receive treatment as soon as possible.\u201d Child was transported to the University of New Mexico Hospital, where Dr. Coleman took over Child\u2019s care.\n{4} Dr. Coleman testified that Child\u2019s injuries included extensive brain injuries, rib fractures, spinal cord and neck injuries, and a femur fracture; that the rib fractures predated the other injuries and were between ten and fourteen days old; and the remaining brain, spinal, and neck injuries had been inflicted more recently \u2014 and were between twenty-four and seventy-two hours old; and that the femur fracture could not be dated. We will refer to the rib fractures as the \u201cold injuries\u201d and the remaining injuries \u2014 excepting the femur fracture \u2014 as the \u201cnew injuries.\u201d Based on her evaluation of all of Child\u2019s injuries, Dr. Coleman called Dr. Campbell, who was a member of the child abuse response team. Dr. Campbell concluded that Child \u201chad injuries that were diagnostic of abuse.\u201d\n{5} When Mother was initially interviewed by a police detective, she told him the same story that she had told Dr. Olmstead. Eventually, however, Mother changed her story and told the police that Defendant had admitted to shaking Child. She also told the detective that Defendant had prevented her from seeking help for Child. Defendant was arrested during the following week, was arraigned on January 13, 2005, and pled not guilty to the charge. On January 18, 2005, an attorney who was on contract with the public defender department was appointed as counsel for Defendant.\n{6} Defendant waived his right to a jury trial and was tried by the court on October 31, 2005, and November 1, 2005. The State presented the expert testimony of three doctors. Defendant put on no expert testimony. Defendant was convicted, and the trial court imposed a mandatory 18-year sentence. Defendant appeals.\nII. DISCUSSION\n{7} Defendant argues that his counsel was ineffective because she (1) failed to interview the State\u2019s medical experts, (2) failed to consult with or retain a defense expert, and (3) failed to file a motion to mitigate the length of his sentence. Defendant also argues that certain rulings by the trial court rendered his counsel ineffective, based on the reasoning in State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105.\n{8} Claims of ineffective assistance of counsel are mixed questions of law and fact, which we review de novo. State v. Martinez, 2007-NMCA-160, \u00b6 19, 143 N.M. 96, 173 P.3d 18. Because Defendant raises the issue for the first time on appeal, he must establish a prima facie case for ineffective assistance in order for this Court to remand the matter to the trial court for an evidentiary hearing. See State v. Bernal, 2006-NMSC-050, \u00b6 33, 140 N.M. 644, 146 P.3d 289. \u201cA prima facie case is made out when: (1) it appears from the record that counsel acted unreasonably; (2) the appellate court cannot think of a plausible, rational strategy or tactic to explain counsel\u2019s conduct; and (3) the actions of counsel are prejudicial.\u201d State v. Herrera, 2001-NMCA-073, \u00b6 36, 131 N.M. 22, 33 P.3d 22 (internal quotation marks and citation omitted). We begin by addressing counsel\u2019s actions and inactions, and then we turn to the rulings of the trial court.\nA. Counsel\u2019s Actions\n1. Medical Experts\na. Unreasonableness and the Strategic or Tactical Basis for Counsel\u2019s Actions\n{9} We first consider whether defense counsel acted unreasonably and without a strategic or tactical basis when she failed to interview the State\u2019s experts and retain or consult with an expert for Defendant. See Herrera, 2001-NMCA-073, \u00b636. There is no dispute that defense counsel failed to conduct pre-trial interviews of the State\u2019s experts. The record provides no tactical or strategic basis for this failure, as the expert testimony was critical to proving the State\u2019s case. Defense counsel was appointed on January 18, 2005. On February 23, 2005, the State filed a witness list, which included Dr. Campbell, one of the State\u2019s experts. The record shows that the State contacted defense counsel to schedule the interviews as early as April 2005 and that defense counsel did not respond. On August 30, 2005, the State provided defense counsel with the phone number of the primary expert \u2014 apparently not for the first time. The email exchanged between defense counsel and the State establishes that the State did not promise to arrange for the interviews but instead made clear that such was the responsibility of defense counsel. By her own admission, defense counsel did not speak with Dr. Campbell until late October \u2014 in the week before trial, and that interview was a phone conversation instead of an interview or deposition.\n{10} On August 10, 2005, the State filed an amended witness list, which included two additional doctors. Defense counsel did not contact those witnesses in the two months prior to trial. Defense counsel asserted that she was waiting for the State to set up contact. In arguing for more time, defense counsel stated that \u201cit\u2019s a state witness, it\u2019s an expert, and it seems to me only fair that they should provide them to me.\u201d\n{11} It is undisputed that throughout the pretrial process, Defendant possessed a list of witnesses and a means of contacting those witnesses. Such is the State\u2019s sole obligation under Rule 5-501(A)(5) NMRA. We further observe that Defendant provides no authority for the proposition that it is the State\u2019s responsibility to actually arrange the interviews. Absent an agreement between the parties, we will not impose an independent duty on the State to act as a scheduler. Cf. State v. Johnson, 2007-NMCA-107, \u00b6\u00b6 22, 32, 142 N.M. 377, 165 P.3d 1153 (acknowledging that when the state agrees to arrange interviews, it has an obligation to follow through). We turn next to consider whether, based on the theory of defense, there was a reasonable trial strategy to justify defense counsel\u2019s failure to retain or consult with an expert.\n{12} There are two aspects to Defendant\u2019s claim relating to the failure to obtain an expert. First, given the importance of expert medical testimony to proving the State\u2019s case, we note that Defense counsel filed a motion for a continuance in May 2005, indicating that \u201c[a]dditional time is needed to fully investigate this case and to obtain an expert witness for the defense.\u201d Later, counsel suggested that an expert would be helpful in her review of medical documents. Regardless of any need or intention to do so, no expert was retained \u2014 or apparently even consulted. Second, Defendant asserts ineffective assistance because no experts were retained to testify on his behalf. While we have generally held that Defendant has not been prejudiced by such inaction in absence of availability of a witness, expert testimony was the crux of this case. See State v. Crain, 1997-NMCA-101, 124 N.M. 84, 946 P.2d 1095; see also State v. Hernandez, 115 N.M. 6, 846 P.2d 312 (1993).\n{13} It was not contested at trial, nor is it contested on appeal, that Defendant shook Child on December 8, 2004. Defendant\u2019s theory at trial was that earlier injuries\u2014 caused by someone else \u2014 were exacerbated by his actions on December 8. In particular, Defendant pointed out that there was no evidence, apart from the timeline of events, to establish that he shook Child with the force that the State\u2019s medical experts testified would have been necessary to cause Child\u2019s new injuries. Because there were no witnesses to Defendant\u2019s actions on December 8, Defendant asserts that his case depended on his credibility and on expert testimony to establish a factual basis for Defendant\u2019s theory that Child\u2019s new injuries stemmed from reinjury or exacerbated existing injuries. See Schoonmaker, 2008-NMSC-010, \u00b6 33 (explaining that because there were no witnesses to the incident, expert testimony \u201cwas critical to the defense to call into question the [s]tate\u2019s expert opinions that [the c]hild\u2019s injuries could only have been caused by shaking of a violent nature\u201d).\n{14} The State argues that defense counsel\u2019s failure to retain an expert witness was tactical because \u201cshe was going to base the defense not on challenging [the scientific] facts but on establishing that Defendant did not [injure Child].\u201d We are unpersuaded. As the State itself points out, \u201cthere was no evidence admitted at trial that anyone but ... Defendant was with [Child] when the injuries occurred on the afternoon of December 8, 2004.\u201d Thus, the primary evidence that ties Defendant to the injuries is timing \u2014 Mother testified that Child was fine before she left him with Defendant and that Child was injured when she returned. Defendant could not refute the State\u2019s timing evidence without medical testimony to question the causation of Child\u2019s injuries and suggest that Child had been injured earlier, before Child was in his care, but that the symptoms of the injuries did not noticeably manifest until a later time. We see no tactical reason not to employ a medical expert in an attempt to substantiate Defendant\u2019s theory. In addition, nothing in the record indicates that defense counsel was evaluating whether to call an expert.\n{15} It is not necessary for us to address the retention of a testifying expert. Defense counsel, in her motion for continuance, pointed out that a consulting expert would be useful to help prepare the case by explaining the medical reports that had recently been received. We agree that a consulting expert was necessary to understand the nature of the State\u2019s evidence and to prepare an adequate defense. The failure of defense counsel to retain any sort of expert in the months prior to trial allows us to reach our conclusion. Thus, based on her failure to engage an expert for consultation, combined with her failure to conduct adequate pre-trial interviews of the State\u2019s experts, we conclude that defense counsel acted unreasonably and without any strategic or tactical justification. Defendant has established two of the three criteria required to demonstrate a prima facie case of ineffective assistance for counsel. See Herrera, 2001-NMCA-073, \u00b636. We now turn to consider the final factor: whether Defendant was prejudiced by defense counsel\u2019s errors.\nb. Prejudice\n{16} A defendant must demonstrate that his counsel\u2019s errors prejudiced his defense such that there was \u201ca reasonable probability that the outcome of the trial would have been different.\u201d State v. Reyes, 2002-NMSC-024, \u00b6 48, 132 N.M. 576, 52 P.3d 948. Defense counsel\u2019s own lack of diligence resulted in failure to adequately interview the State\u2019s experts or consult with an expert to prepare for trial. These failings in turn resulted in an inability to present Defendant\u2019s theory through effective cross-examination of those experts. See Lytle v. Jordan, 2001-NMSC-016, \u00b6 34, 130 N.M. 198, 22 P.3d 666 (determining that adequate cross-examination eliminated a \u201creasonable probability that consultation with experts would have affected the outcome of the trial\u201d). Counsel then did not remedy these initial failings by engaging an expert to explain Defendant\u2019s theory at trial, thus eliminating his only line of defense to the State\u2019s charges.\n{17} After the parties made their closing arguments, the trial court ruled from the bench with the following comments:\nThe, undisputed evidence that basically is that, there, that [C]hild was, was okay when he was left in the charge of [Defendant], and when [C]hild\u2019s mother came back, [C]hild manifested all the symptoms that the doctors said were indicative of child abuse and shaken baby syndrome.\nIt does concern the [c]ourt, it\u2019s kind of, that there, (indiscernible) that there are two discrete, at least two discrete child abuse injuries, but we\u2019ll, we\u2019ll know, we\u2019ll obviously not know about what caused the first one. But we do, I think under the evidence that we have at hand, beyond a reasonable doubt know what caused the second injury.\nBased on the evidence presented, the trial court concluded that the timeline demonstrated that Defendant must have caused the new injuries. Accordingly, there is a reasonable probability that the outcome of the trial would have been different had defense counsel engaged an expert to substantiate the defense theory \u2014 that the injuries manifested on December 8 were actually inflicted on an earlier date by another person. Although the failure to retain a defense expert will not establish in every case the prejudice necessary to make a claim for ineffective assistance of counsel, under the facts of the present case it is clear that without an expert to either assist in trial preparation or to testify on Defendant\u2019s behalf, Defendant was deprived of his only avenue of defense.\n{18} The State argues that Defendant suffered no prejudice because non-expert testimony undercut his defense theory. In support of this argument, the State points out that Defendant admitted to shaking Child and argues that no expert would have been able to refute Defendant\u2019s admission or \u201cthe undisputed evidence of Defendant\u2019s consciousness of guilt.\u201d This argument assumes that all experts would agree that any amount or type of shaking would cause the injuries that Child suffered. Defendant\u2019s theory was that although he shook Child, he did not do so in a violent enough manner to cause Child\u2019s new injuries and that the new injuries were the result of someone else\u2019s earlier actions. This theory \u2014 if it had been supported by evidence \u2014 could have survived Defendant\u2019s admission that he shook Child. Further, the theory is not undone by the evidence that Defendant hid from the police \u2014 it was undisputed that Defendant knew he had done something wrong. The State would still have been required to prove that Defendant\u2019s wrongdoing was specifically the cause of Child\u2019s extensive new injuries.\nc. Prima Facie Case\n{19} Having determined that defense counsel\u2019s actions were unreasonable and had no strategic or tactical purpose and that those actions prejudiced Defendant, we hold that Defendant has established a prima facie case for ineffective assistance.\n{20} Defendant argues that based on these prejudicial errors, we should remand his ease for a new trial. We disagree. Generally, we prefer that claims for ineffective assistance of counsel be brought by habeas petition. State v. Grogan, 2007-NMSC-039, \u00b6 9, 142 N.M. 107, 163 P.3d 494. Nevertheless, \u201cNew Mexico appellate courts frequently remand claims of ineffective assistance of counsel brought on direct appeal for further evidentiary hearings\u201d because \u201cthe record before the trial court may not adequately document the sort of evidence essential to a determination of trial counsel\u2019s effectiveness.\u201d Id. (internal quotation marks and citation omitted). In the past, we have required a defendant to show that an expert would have been \u2014 not could have been \u2014 available to testify at trial. See Crain, 1997-NMCA-101, \u00b6 33. On cross-examination, Defendant referred to a number of medical studies to establish that his defense theory is not without support in the medical community. Based on our catalogue of defense counsel\u2019s failures and inactions, it would be impossible for the current record to demonstrate that an expert was actually available to testify in this regard. On the other hand, it would be futile to remand the matter for a new trial if no expert is available to bear out Defendant\u2019s theory. Accordingly, an evidentiary hearing is appropriate to explore these issues. See State v. Paredez, 2004-NMSC-036, \u00b6\u00b6 22, 24, 136 N.M. 533, 101 P.3d 799 (remanding for an evidentiary hearing in part because \u201cthe record indicate[d] ... a distinct possibility\u201d that the defendant\u2019s attorney acted unreasonably and that those actions resulted in prejudice to the defendant). We remand for the trial court to conduct an evidentiary hearing regarding defense counsel\u2019s failure to interview the State\u2019s expert witnesses and failure to consult with or retain an expert.\n2. Motion to Mitigate\n{21} Defendant also argues that his counsel was ineffective because she failed to file a motion setting forth mitigating factors. As we have stated, in evaluating a direct appeal based on ineffective assistance of counsel, we consider whether defense counsel acted unreasonably, whether counsel\u2019s actions can be justified by trial strategy or tactics, and whether the defendant was prejudiced by counsel\u2019s unjustified errors. See Herrera, 2001-NMCA-073, \u00b6 36. After reviewing the record, we discern no error on counsel\u2019s part for failing to file the motion.\n{22} Defendant asserts that at the sentencing hearing, the trial court stated that \u201cit believed a lesser sentence was appropriate\u201d and that the court invited \u201cdefense counsel to file a motion setting forth mitigating factors.\u201d As a result, Defendant maintains that if counsel had filed a motion, \u201cit is likely that [Defendant] would have received a reduced sentence.\u201d Our review of the sentencing hearing does not support Defendant\u2019s characterization of the interchange between counsel and the trial court.\n{23} At the hearing, the trial court spoke at length about the difficulties surrounding mandatory sentencing provisions and the resulting unfairness that stems from removing the trial court\u2019s discretion. Despite these concerns, the court stated that \u201cI\u2019m going to sentence him to 18 years because I think that\u2019s what society demands. I think, given the circumstances of the crime, his past history, that\u2019s what I have to do. I take no pleasure in it.\u201d Defense counsel suggested that the trial court could reduce the sentence based on mitigating factors. The trial court expressed some doubt, and the State indicated that Defendant would have to file a motion. The trial court told defense counsel that \u201cIf you file a motion, I\u2019ll consider it.\u201d Then the trial court continued and warned defense counsel: \u201cYou\u2019ll have to [show] me the mitigating circumstances and I would have to take \u2014 that would have to be \u2014 I would have to make a finding of mitigating circumstances. You would have to show me those mitigating circumstances. I\u2019m not going to do that on whim.\u201d\n{24} There is no indication in the record to suggest why counsel failed to file the motion, and it is conceivable that based on the comments of the trial court, counsel strategically opted not to proceed with the motion. See State v. Dylan J., 2009-NMCA-027, \u00b6 39, 145 N.M. 719, 204 P.3d 44 (\u201cIf there is a plausible, rational strategy or tactic to explain counsel\u2019s conduct, a prima facie case for ineffective assistance is not made.\u201d). Thus, we perceive no error for failing to file the motion.\n{25} Further, Defendant did not establish that the trial court would have reduced the sentence but for counsel\u2019s failure to file the motion. On appeal, Defendant identifies the following mitigating circumstances: doubt regarding the source of Child\u2019s injuries, Defendant\u2019s history of having been abused as a child, and Defendant\u2019s subsequent rehabilitative efforts. All of this evidence had already been presented to the trial court during the course of the trial. The verdict demonstrates that based on the evidence before it, the trial court had no reasonable doubt about the source of Child\u2019s new injuries. Defendant\u2019s unfortunate history of being abused came to light during the trial when defense counsel played a video taped interview between the investigating detective and Defendant. Finally, the trial court referred to Defendant\u2019s efforts at rehabilitation during sentencing, but ultimately concluded that he was bound to impose the mandatory sentence. After having been exposed to all of this mitigating evidence, the trial court stated \u201cI don\u2019t think there\u2019s any mitigating circumstances, frankly.\u201d\n{26} Based on this, we hold that Defendant has not established that he was prejudiced by his counsel\u2019s failure to file a motion setting forth mitigating factors. Consequently, Defendant has failed to establish a prima facie case for ineffective assistance of counsel based on defense counsel\u2019s failure to file a motion laying out mitigating factors.\nB. Trial Court Rulings\n{27} Defendant also argues that his counsel was rendered ineffective by three of the trial court\u2019s rulings. Specifically, Defendant contends that \u201c[b]y denying defense counsel\u2019s motions and refusing to grant any other form of relief, the [trial] court actively caused or contributed to defense counsel\u2019s incompetence.\u201d This argument is based on our Supreme Court\u2019s reasoning in the recent Schoonmaker opinion.\n1. Schoonmaker\u2019s Presumption of Prejudice\n{28} In Schoonmaker, private defense counsel filed a motion to withdraw because the public defender department would not pay for an expert witness when the defendant was not represented by the department. 2008-NMSC-010, \u00b6\u00b67-8. The court would not permit counsel to withdraw, and counsel was faced with a dilemma: \u201crefuse to proceed without an order of withdrawal and risk being held in contempt, or proceed without necessary experts.\u201d Id. \u00b6 36. Under those circumstances, our Supreme Court presumed that the defendant was prejudiced because \u201ccounsel\u2019s potential ineffectiveness is expressly brought to the attention of the [trial] court and is occasioned by the rulings of the court itself.\u201d Id.\n{29} In the present case, Defendant argues that his counsel was similarly rendered ineffective by three of the trial court\u2019s rulings: (1) the denial of a motion to continue so that counsel could interview certain witnesses, (2) the denial of a motion to exclude evidence, and (3) the admission of certain medical testimony. We consider each of these rulings to determine whether they forced defense counsel to provide ineffective assistance of counsel.\n{30} On October 28, 2005 \u2014 three days before trial \u2014 Defendant filed a motion requesting \u201ca reasonable time to interview the State\u2019s experts.\u201d The trial court held a hearing on the same day and denied the motion to continue the trial. As we have already determined, counsel\u2019s failure to interview witnesses was the result of her own inaction. Thus, the denial of the motion to continue for the purpose of interviewing the State\u2019s witnesses did not render counsel ineffective\u2014 the need for the motion under these circumstances demonstrates that counsel had already been ineffective.\n{31} In the same October 28, 2005 motion, Defendant requested the trial court to exclude the testimony of two medical expert witnesses who were disclosed late by the State, as well as any reference to certain medical records that the State disclosed on October 21, 2005. The trial court denied the motion and observed that those records were as accessible to defense counsel as they were to the State. In addition, although the State did not disclose two of its medical witnesses until August, defense counsel had at least two months to interview those witnesses before trial. Thus the trial court\u2019s failure to remedy the State\u2019s late disclosure of records and witnesses did not cause the prejudice to Defendant \u2014 defense counsel\u2019s failure to seek records that were available and failure to interview identified witnesses caused the prejudice to Defendant.\n{32} We have struggled with Defendant\u2019s last argument. He appears to make two arguments related to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). First, Defendant contends that the trial court improperly delayed the Daubert hearing. Second, Defendant maintains that because the trial court\u2019s rulings prevented him from interviewing the State\u2019s experts or from obtaining an expert, the trial court had a heightened obligation to question the State\u2019s experts at that hearing. Again, defense counsel was responsible for any prejudice that resulted from these rulings. The motion challenging the State\u2019s experts was filed on the day of trial \u2014 any delay in the hearing is squarely defense counsel\u2019s responsibility. In addition, defense counsel was not prevented by the trial court\u2019s rulings from conducting interviews or obtaining an expert \u2014 she simply did not do so.\n{33} We have already determined that it was unreasonable for defense counsel to fail to interview the State\u2019s experts and retain or consult with an expert. None of the trial court\u2019s rulings forced defense counsel to act unreasonably. See Herrera, 2001-NMCA-073, \u00b6 36. Counsel\u2019s own actions led to the rulings and to any resulting prejudice. Accordingly, counsel\u2019s ineffectiveness was not \u201coccasioned by the rulings of the court\u201d and we decline to apply the Schoomnaker presumption of prejudice. Schoomnaker, 2008-NMSC-010, \u00b6 36.\n2. Unreasonable Error\n{34} Even were we to accept Defendant\u2019s argument that prejudice should be presumed, we are further unpersuaded that the trial court should have ruled differently under the circumstances. See id. \u00b6 40 (holding that the trial court should have ruled differently to avoid rendering the defendant\u2019s counsel ineffective). We address each ruling in turn and conclude that the trial court did not abuse its discretion. See State v. Torres, 1999\u2014 NMSC-010, \u00b6 10, 127 N.M. 20, 976 P.2d 20 (reviewing a ruling on a motion for continuance for abuse of discretion); State v. Duarte, 2007-NMCA-012, \u00b6 14, 140 N.M. 930, 149 P.3d 1027 (reviewing a trial court\u2019s ruling on late discovery for abuse of discretion); State v. Alberico, 116 N.M. 156, 169, 861 P.2d 192, 205 (1993) (\u201c[T]he admission of expert testimony or other scientific evidence is peculiarly within the sound discretion of the trial court and will not be reversed absent a showing of abuse of that discretion.\u201d).\na. Motion for Continuance\n{35} In order to determine whether a trial court improperly denied a defendant\u2019s motion for a continuance, we consider a number of factors. Torres, 1999-NMSC-010, \u00b6 10; see State v. Salazar, 2007-NMSC-004, \u00b6\u00b6 11, 28, 141 N.M. 148, 152 P.3d 135 (applying the Torres factors in an appeal in which the defendant argued that the denial of a motion to continue the trial rendered trial counsel ineffective). Those factors include:\nthe length of the requested delay, the likelihood that a delay would accomplish the movant\u2019s objectives, the existence of previous continuances in the same matter, the degree of inconvenience to the parties and the court, the legitimacy of the motives in requesting the delay, the fault of the movant in causing a need for the delay, and the prejudice to the movant in denying the motion.\nTorres, 1999-NMSC-010, \u00b6 10.\n{36} We first observe that the length of the requested delay was \u201ca reasonable time\u201d to interview the witnesses, and Defendant did not offer a specific estimate of how much additional time was needed to prepare for trial. Defendant did, however, indicate that the six-month rule was set to run in mid-February. See Salazar, 2007-NMSC-004, \u00b6 21 (presuming that a defendant wanted enough time to accomplish his stated goals). Defendant also offered the trial court no indication of the steps that had already been taken to accomplish the stated objectives or what would have been done in the future to secure interviews or an expert. Cf. Torres, 1999-NMSC-010, \u00b6 16 (concluding that the requested delay was reasonably likely to achieve the stated objectives because the defendant had already taken action and that future action was likely to achieve the desired result).\n{37} The third and fourth Torres factors weigh the existence of previous continuances and the inconvenience of further delay. The original trial date was set for May 16, 2005. Defendant filed a motion to continue that setting, which was granted. In addition, two six-month rule extensions were granted, with Defendant stipulating to at least the first extension. Defendant\u2019s position on the second rule extension is not in the record. Ultimately, the six-month rule was extended until February 12, 2006. The delay between the original trial date and the actual trial date was approximately five and a half months.\n{38} On October 26, 2005, anticipating a motion by Defendant to again continue the trial, the State filed a motion vigorously opposing an additional continuance. At the October 28, 2005 hearing, the State argued that any further delay would be prejudicial because memories fade and because one of its experts would soon be unavailable due to an illness. The trial court also observed that the offense and the indictment had happened \u201calmost a year ago\u201d and that it was \u201ctime to get these cases on.\u201d Although it is clear that \u201cthe trial court\u2019s generalized concerns about expediency are not sufficient to override [a defendant\u2019s] constitutional right to compulsory process,\u201d the State opposed the continuance and demonstrated that inconvenience would result if the time for trial was extended beyond December, when its witness would no longer be available. Torres, 1999\u2014 NMSC-010, \u00b6 17 (explaining that the parties would have to establish \u201csignificant or substantial inconvenience\u201d in order to warrant consideration as a factor).\n{39} The State argues that Defendant had an illegitimate motive for moving for a continuance. We have already commented on the quality of defense counsel\u2019s representation based in part on her failure to interview these witnesses. We are not persuaded by the record that defense counsel\u2019s motive was entirely to delay the proceedings, as the State suggests. The need to interview witnesses and review records is manifest in this case. We do not regard the request itself as illegitimate. The State offers no evidence or citation to the record to establish that defense counsel\u2019s motive was other than what was claimed \u2014 to finally act to secure witnesses and conduct interviews.\n{40} The next Torres factors evaluate whether the need for the delay was caused by Defendant and what prejudice would result if the continuance was denied. See 1999-NMSC-010, \u00b6 10. The State argues that the fault for the delay was entirely Defendant\u2019s: Defendant failed to interview the State\u2019s experts and failed to alert the court to any difficulties that she was having in arranging for the interviews. Defendant contends that the State is partly to blame for the failure to interview because the State promised to arrange for an interview with one expert and failed to timely disclose two other experts. As explained above, Defendant has an independent duty to investigate and pursue witness interviews in this case. Here, the State bears little responsibility for the delay. Defense counsel had over eight months to interview one witness and two and a half months to interview the remaining witnesses, and she failed to do so. Defense counsel did not alert the trial court to any difficulties in contacting the witnesses, and the court was unaware of any problems until three days before trial. Based on this, we conclude that Defendant alone bears the responsibility for the need for a continuance.\n{41} Defendant claims that as a result of the trial court\u2019s failure to grant a continuance, he was prejudiced because he was unable to call or consult with an expert and thereby establish his theory of the case, which we have already described. See id. (describing the final factor as \u201cthe prejudice to the movant in denying the motion\u201d). We agree that counsel\u2019s failure to call an expert or interview the State\u2019s experts was prejudicial to his defense. Nevertheless, weighing this factor together with the other Torres factors, we conclude that the trial court did not abuse its discretion by denying a continuance. The case had been delayed three times already, once at Defendant\u2019s request and at least once with Defendant\u2019s approval. Defendant provided no indication of how much more time was required or how his stated objectives would have been achieved. The State established that further delay would harm the prosecution, and the record demonstrates that the need for the delay was rooted in Defense counsel\u2019s failure to arrange for interviews. Accordingly, we hold that the trial court did not render Defendant\u2019s counsel ineffective by denying the October 28, 2005 motion for a continuance. We now turn to the trial court\u2019s denial of Defendant\u2019s motion to exclude the late-disclosed medical records and the testimony of the late-disclosed medical experts.\nb. Evidentiary Ruling\n{42} In order to determine whether a ruling on late discovery requires reversal, we consider \u201c(1) whether the [s]tate 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.\u201d Duarte, 2007-NMCA-012, \u00b6 15.\n{43} As we have explained, defense counsel\u2019s failure to interview the State\u2019s experts was not due to a breach of duty on the part of the State. The trial court specifically stated that it \u201ctakes very seriously the [S]tate\u2019s obligation to provide timely discovery and cooperate in interviews.\u201d Defendant also has not established that the State breached a duty regarding the late-disclosed medical records. At the hearing on Defendant\u2019s motion, the State explained that the records were recent records, which had not previously been part of the State\u2019s file. The State passed the documents on to Defendant as soon as they were obtained. The trial court pointed out that Defendant had as much access to these records as did the State, and he could have easily obtained them. There is additionally very little indication, apart from Defendant\u2019s insistence, that these recent records were material to the charge. The records pertained to Child\u2019s condition at the time of trial and not at the time he was injured or before the injuries.\n{44} With regard to the late-disclosed witnesses, we first observe that Defendant did not argue to the trial court that the State violated Rule 5 \u2014 501 (A) (5), which requires the State to disclose witnesses within ten days of arraignment. We further fail to see how Defendant was prejudiced by the untimely disclosure. To determine prejudice, \u201cwe look at whether the defense\u2019s case would have been improved by an earlier disclosure or how [the defense] would have prepared differently for trial.\u201d Duarte, 2007-NMCA-012, \u00b6 15 (alteration in original) (internal quotation marks and citation omitted). The State\u2019s first expert was disclosed on February 23, 2005. Although this disclosure is outside the time set by Rule 5-501(A)(5), over eight months elapsed before trial commenced. The two additional experts were disclosed on August 10, 2005, more than two months before trial.\n{45} Defendant made no claim below \u2014 and makes none on appeal \u2014 that he would have prepared differently for trial had he known of the expert witnesses earlier. In fact, the primary difficulty in securing witness interviews was not notice, but defense counsel\u2019s inaction and her disagreement about whether the State or Defendant was responsible for arranging the interviews. Given the length of time between Defendant\u2019s receipt of notice of the witnesses and the trial, as well as defense counsel\u2019s supposed misapprehension about his responsibility to arrange for interviews, we conclude that the trial court did not abuse its discretion by failing to provide a remedy for the late disclosure.\nc. Expert Testimony\n{46} As an initial matter, Defendant does not argue that under Daubert or any other authority that the State\u2019s doctors were not qualified to testify, that the evidence of shaken baby syndrome does not assist the trier of fact, or that the shaken baby diagnosis is not sufficiently based on applicable factors under Rule 11-702 NMRA or Rule 11-104(A) NMRA. Instead, Defendant challenges the timing of the evidentiary hearing and the trial court\u2019s conduct of the hearing on the day of trial. These arguments focus on the deficiencies of the trial court and not on the deficiency or the unreliability of the medical diagnosis at issue. Accordingly, we review Defendant\u2019s contentions as they are presented. We do not analyze whether the evidence of shaken baby syndrome is subject to having Daubert applied or otherwise meets the standards for scientific reliability. See Toms, 1999-NMSC-010, \u00b6 43 (\u201c[A]pplication of the Daubert factors is unwarranted in cases where expert testimony is based solely upon experience or training.\u201d (internal quotation marks and citation omitted)).\n{47} Dr. Campbell was the State\u2019s final witness, and two other doctors had testified earlier in the trial. Defendant contends that at least one of these doctors, Dr. Coleman, touched on the issue of shaken baby syndrome \u2014 although that doctor did not refer to it by name \u2014 before the trial court had considered the scientific reliability of the diagnosis. Defendant thus argues that by delaying the Daubert hearing, unqualified and potentially unreliable evidence was admitted. We are unpersuaded. Irrespective of whether Daubert applies to the shaken baby diagnosis, we see no error in delaying the hearing.\n{48} First, Defendant\u2019s argument that the trial court \u201cimproperly delayed\u201d a hearing on the admissibility of the shaken baby testimony is unconvincing in light of the fact that the court was presented with the motion on the day of trial. Second, Defendant made no objection when the trial court proposed to consider the evidentiary reliability during trial or when Dr. Coleman gave her testimony. Third, Defendant offers no authority for the proposition that a Daubert hearing pursuant to Rule 11-104 or Rule 11-702 must take place at a particular time during or before the trial. See State v. King, 2007-NMCA-130, \u00b6 17, 142 N.M. 699, 168 P.3d 1123 (refusing to consider arguments unsupported by authority or analysis), cert. quashed, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d 764.\n{49} Fourth, it appears from the record that although the trial court qualified Dr. Coleman as an expert witness, the State presented her primarily as a fact witness because she was the treating physician at the time that Child was brought to the University of New Mexico Hospital emergency room. She testified as to the extent of all of Child\u2019s injuries. Dr. Campbell later connected some of these injuries to shaken baby syndrome\u2014 after the trial court accepted the scientific foundation. Dr. Coleman, however, did not offer a shaken baby diagnosis and we see no error in the trial court\u2019s hearing her testimony regarding her observation of all of Child\u2019s injuries before considering the evidentiary reliability of the diagnosis.\n{50} Our Supreme Court has characterized the trial court\u2019s role in the admission of expert evidence as that of a \u201cgatekeeper.\u201d State v. Downey, 2008-NMSC-061, \u00b6 25, 145 N.M. 232, 195 P.3d 1244. Defendant next argues that the trial court failed to fulfill its role as gatekeeper on two grounds. According to Defendant, the trial court was insufficiently critical of the State\u2019s proposed expert, and further, the trial court did not genuinely inquire into the validity of the shaken baby diagnosis. Defendant takes the position that more active participation by the trial court was required because Defendant was prevented by the trial court\u2019s rulings from obtaining an expert as either a witness or a consultant and from fully exploring the symptoms underlying a shaken baby syndrome on cross-examination of Dr. Campbell. We disagree, primarily because Defendant\u2019s characterizations of the trial court\u2019s actions are not supported by the record. As we have already concluded, the trial court did not prevent Defendant from obtaining an expert \u2014 the absence of expert support was due entirely to defense counsel\u2019s lack of diligence. Additionally, Defendant provides no authority for the proposition that heightened participation by the trial court is required under certain circumstances. See King, 2007-NMCA-130, \u00b6 17.\n{51} Similarly, the record does not support Defendant\u2019s argument that the trial court prevented Defendant\u2019s counsel from effectively cross-examining the State\u2019s shaken baby expert; the record demonstrates that the trial court did not prevent Defendant\u2019s counsel from pursuing any line of questioning during voir dire. Defendant points to an exchange between his counsel and Dr. Campbell, in which Defendant asked, \u201c[Ajren\u2019t there in fact many other causes for those kinds of conditions such as the retinal hemorrhages as opposed to just shaking?\u201d Dr. Campbell proceeded to outline potential alternate causes for the symptoms that she had identified as indicators of shaken baby syndrome. Defendant followed up with another question: \u201cAnd how, how about something such as vaccines, the impact of them?\u201d The State objected and argued that the questions were beginning to stray afield. The trial court permitted Defendant to continue: \u201cI\u2019ll let you, I\u2019ll let you go on a little bit[.]\u201d After that, Defendant elicited a response to the question regarding the vaccines and continued the examination of the expert without interruption. Although Defendant\u2019s questions were interrupted by an objection, the trial court permitted Defendant to continue. We thus fail to see how the trial court\u2019s actions prevented Defendant from conducting an effective cross-examination of Dr. Campbell.\n{52} Based on Defendant\u2019s articulated challenges to the trial court\u2019s admission of the shaken baby diagnosis, we hold that the trial court did not abuse its discretion by admitting the expert evidence.\n3. Rulings and Schoonmaker\n{53} Having reviewed the three rulings in light of Schoonmaker, we conclude that Defendant failed to establish that the rulings rendered his counsel ineffective. The presumption of prejudice is inapplicable to the facts before us, and we discern no error in the trial court\u2019s rulings.\nIII. CONCLUSION\n{54} We remand this matter for an evidentiary hearing to determine whether Defendant\u2019s counsel was ineffective in failing to obtain or consult with an expert or in failing to interview the State\u2019s experts. We observe that although Defendant\u2019s complaints regarding the motion to mitigate and the trial court\u2019s rulings are insufficiently developed to support a direct appeal, he retains the right to pursue these claims via habeas review.\n{55} IT IS SO ORDERED.\nWE CONCUR: RODERICK T. KENNEDY and TIMOTHY L. GARCIA, Judges.", "type": "majority", "author": "CASTILLO, Judge." } ], "attorneys": [ "Gary K. King, Attorney General, Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.", "Hugh W. Dangler, Chief Public Defender, Mary A. Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant." ], "corrections": "", "head_matter": "2009-NMCA-102\n216 P.3d 276\nSTATE of New Mexico, Plaintiff-Appellee, v. Martin ARAGON, Defendant-Appellant.\nNo. 27,615.\nCourt of Appeals of New Mexico.\nJuly 30, 2009.\nGary K. King, Attorney General, Santa Fe, NM, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.\nHugh W. Dangler, Chief Public Defender, Mary A. Barket, Assistant Appellate Defender, Santa Fe, NM, for Appellant." }, "file_name": "0026-01", "first_page_order": 62, "last_page_order": 74 }