State v. Smith

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1

Opinion Number: 2

Filing Date: March 27, 2025 3

NO. S-1-SC-39989 4

STATE OF NEW MEXICO, 5

Plaintiff-Appellee, 6

v. 7

CRAIG TALBERT SMITH, 8

Defendant-Appellant. 9

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 10

Brett R. Loveless, District Judge 11 Bennett J. Baur, Chief Public Defender 12 Kimberly Chavez Cook, Appellate Defender 13 Mark A. Peralta-Silva, Assistant Appellate Defender 14 Santa Fe, NM 15

for Appellant 16

Raúl Torrez, Attorney General 17

Eric J. Orona, Assistant Solicitor General 18 Santa Fe, NM 19

for Appellee20

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OPINION 1

THOMSON, Chief Justice. 2

I. INTRODUCTION 3

{1} Defendant Craig Talbert Smith challenges his convictions for first degree 4 murder (willful and deliberate), conspiracy to commit first degree murder, 5 kidnapping, aggravated burglary, and tampering with evidence. Defendant raises 6 three issues for our review: (1) Did the district court abuse its discretion in denying 7 Defendant's two motions for mistrial when a juror became ill during deliberations? 8

(2) Is Defendant's conviction for conspiracy to commit first degree murder 9 supported by sufficient evidence? and (3) Was Defendant's counsel ineffective 10 because she was appointed approximately three months prior to trial? 11

{2} We determine that the district court did not abuse its discretion in denying 12 Defendant's motions for mistrial and that Defendant's conspiracy conviction is 13 supported by sufficient evidence. We further conclude that Defendant has not shown 14 ineffective assistance of counsel. We therefore affirm Defendant's conviction and 15 sentence. 16

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II. DISCUSSION 1

A. Denial of Defendant's Motions for Mistrial 2

{3} As his first issue on appeal, Defendant challenges the district court's denial of 3 his two motions for mistrial. Defendant's trial spanned from October 26, 2022, to 4 November 9, 2022. At that time, this Court had implemented public health 5 emergency protocols designed to minimize the spread and impact of the COVID-19 6 pandemic. See New Mexico Judiciary Public Health Emergency Protocols, Supreme 7 Court Ord. No. 20-8500-025 (July 6, 2020, as amended by Supreme Court Ord. No. 8 22-8500-010 (eff. March 21, 2022)). Protocol 1(B), Health Screening and Self-9 Isolation Procedures, prohibited individuals who could not pass a series of health 10 screening questions from entering the courthouse. Id. 11

{4} Defendant's trial proceeded for six and one-half days in compliance with the 12 protocols, and the case was submitted to the jury in the early afternoon of November 13 2, 2022. The next morning, a juror reported that she was sick with a fever. In 14 accordance with court protocols, because the juror could not pass the screening 15 questions, she was prohibited from entering the courthouse. The district court 16 explored a variety of options with the parties in view of the juror's unavailability, 17 including proceeding with eleven jurors, resuming deliberations with the sick juror 18 attending via telecommunications, or recessing deliberations until the juror 19

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recovered and was allowed to reenter the courthouse. Defendant objected to the 1 alternatives proposed by the district court and moved for a mistrial; the State 2 opposed. After considering the parties' positions, the district court denied 3 Defendant's first motion for mistrial and suspended deliberations for one week, until 4 November 9, 2022. The court indicated that it would reassess whether deliberations 5 could resume on that date. 6

{5} By November 9, the juror had recovered and was permitted to return to the 7 courthouse. However, two other jurors reported having been exposed to family 8 members who had tested positive for COVID-19, and accordingly the two could not 9 pass the health screening questions for courthouse access. Defendant made a second 10 motion for mistrial; the State opposed and suggested the district court seek an 11 exemption from the public health emergency protocols. The district court 12 subsequently asked this Court for an exemption, proposing to implement other 13 health-protective measures that would allow the jurors to resume deliberations. This 14 Court granted the exemption, and jury deliberations resumed around 1 p.m. on 15 November 9. Just over an hour later, the jury returned a verdict. 16

{6} Defendant contends that the district court erred in denying his two motions 17 for mistrial and instead suspending deliberations. We review the district court's 18 denial of a motion for mistrial for an abuse of discretion. State v. Sena, 2020-NMSC-19

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011, ¶ 15, 470 P.3d 227. "An abuse of discretion occurs when the ruling is clearly 1 against the logic and effect of the facts and circumstances of the case." State v. 2 Sanchez, 2020-NMSC-017, ¶ 21, 476 P.3d 889 (internal quotation marks and citation 3 omitted). "A court abuses its discretion if it applies an incorrect standard, incorrect 4 substantive law, or its discretionary decision is premised on a misapprehension of 5 the law." State v. Fernandez, 2023-NMSC-005, ¶ 8, 528 P.3d 621 (internal quotation 6 marks and citation omitted). "When there exist reasons both supporting and 7 detracting from a trial court decision, there is no abuse of discretion." State v. 8 Moreland, 2008-NMSC-031, ¶ 9, 144 N.M. 192, 185 P.3d 363 (internal quotation 9 marks and citation omitted); see also State v. Layne, 2008-NMCA-103, ¶ 7, 144 10 N.M. 574, 189 P.3d 707 ("The very essence of discretion is that there will be reasons 11 for the district court to rule either way on an issue, and whatever way the district 12 court rules will not be an abuse of discretion."). 13

{7} When reviewing the district court's decision on a motion for mistrial, we are 14 mindful that "[t]he trial judge is in a much better position to know whether a 15 miscarriage of justice has taken place and his opinion is entitled to great weight in 16 the absence of a clearly erroneous decision." State v. Sutphin, 1988-NMSC-031, ¶ 17 18, 107 N.M. 126, 753 P.2d 1314 (internal quotation marks and citation omitted). 18

"The power to declare a mistrial should be exercised with the greatest caution." State 19

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v. Smith, 2016-NMSC-007, ¶ 69, 367 P.3d 420 (internal quotation marks and citation 1 omitted). A district court therefore should explore reasonable alternatives before 2 declaring a mistrial. State v. Messier, 1984-NMCA-085, ¶ 14, 101 N.M. 582, 686 3 P.2d 272; see also State v. Vanderdussen, 2018-NMCA-041, ¶ 17, 420 P.3d 609 4 ("[T]he proposed alternatives to a mistrial must be feasible or reasonable."). In some 5 circumstances, a juror's illness or unavailability may support declaration of a 6 mistrial. See Messier, 1984-NMCA-085, ¶¶ 11-12 ("Manifest necessity for the 7 declaration of a mistrial has been upheld . . . under certain circumstances where a 8 judge, juror or witness has become ill or unavailable."); State v. Salazar, 1997-9 NMCA-088, ¶¶ 8, 17, 124 N.M. 23, 946 P.2d 227 (affirming that manifest necessity 10 supported the declaration of a mistrial when a juror became unavailable due to a 11 migraine). Yet in other circumstances, declaring a mistrial may seem an unnecessary 12 waste of time and resources, and a reasonable continuance may be warranted. See 13 Messier, 1984-NMCA-085, ¶ 14 ("Where a reasonable continuance may resolve the 14 problem, it should be undertaken in lieu of granting a mistrial."); see also State v. 15 Sanchez, 2000-NMSC-021, ¶ 9, 129 N.M. 284, 6 P.3d 486 ("When a juror becomes 16 disabled during deliberations, . . . the trial court has limited options. Granting a 17 mistrial may seem an unnecessary waste of scarce resources. Granting a continuance 18 may be impractical."). 19

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{8} We review each of Defendant's two motions for mistrial under this abuse of 1 discretion standard of review. 2

1. Defendant's first motion for mistrial 3

{9} Defendant contends that the district court abused its discretion in denying his 4 first motion for mistrial because the court's decision to suspend deliberations 5 violated his right to a fair trial. Defendant asserts that deliberations are a critical 6 point in trial and that he was prejudiced by the suspension during jury deliberations. 7 We agree that deliberations are critical; but, under the circumstances presented, we 8 conclude the district court had good cause to grant a continuance. As the matter had 9 already been submitted when the juror became ill, the district court could not 10 substitute that juror with an alternate. See Rule 5-605(B) NMRA ("Alternate jurors 11

. . . shall replace jurors who, prior to the time the jury retires to consider its verdict, 12 become or are found to be unable or disqualified to perform their duties." (emphasis 13 added)); Sanchez, 2000-NMSC-021, ¶ 23 (holding that post-submission substitution 14 of a juror is reversible error under Rule 5-605(B) unless the state can show "that the 15 trial court took adequate steps to ensure the integrity of the jury process"). The 16 district court proposed reasonable alternatives that may have allowed the jurors to 17 resume deliberations despite the juror's illness, which Defendant rejected. Now on 18 appeal, Defendant concedes that there was no alternative to mistrial that he would 19

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have accepted. The district court therefore did not err in concluding that a 1 continuance was warranted. 2

{10} We likewise conclude that the recess in deliberations did not prejudice 3 Defendant. Defendant argues that he was prejudiced because his case was relatively 4 complex and seven days was a lengthy suspension during which the jurors' 5 memories of the evidence could have been affected. We disagree with Defendant's 6 characterization of the complexity of his case and the length of the suspension. Even 7 though presentation of evidence lasted six days, Defendant's trial was relatively 8 straightforward as the State primarily relied on a few key witnesses and exhibits 9 connecting Defendant to the crime. And seven days was not a long interruption in 10 view of the fact that the trial took place in the midst of a global pandemic that 11 disrupted many aspects of everyday life, including jurors' access to the courthouse. 12 Cf. Smith, 2016-NMSC-007, ¶ 71 (concluding that a district court did not abuse its 13 discretion in denying a motion for mistrial and instead ordering a midtrial recess of 14 ten days to benefit the defense). Thus, we do not believe that either the complexity 15 of the case or the length of the recess prejudiced Defendant in his trial. 16

{11} Defendant also suggests that the jury could have been exposed to prejudicial 17 media coverage during the recess in deliberations, noting that several news 18 organizations reported on his trial. But we do not see any prejudice arising from the 19

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jury's exposure to publicity under the circumstances presented. Generally, when it 1 appears that jurors may have been exposed to inherently prejudicial publicity mid-2 trial, we require the district court to canvass the jury to determine whether any juror 3 has been actually exposed to the publicity, and if so, to evaluate whether this 4 exposure compromises the fairness of the trial. See State v. Holly, 2009-NMSC-004, 5 ¶¶ 19-24, 145 N.M. 513, 201 P.3d 844; see also State v. House, 1999-NMSC-014, 6 ¶¶ 25-26, 57, 127 N.M. 151, 978 P.2d 967 (recognizing the right to an impartial jury 7 in the context of assessing a motion for change in venue due to pretrial publicity). 8 Here, before the recess in deliberations, Defendant expressed concerns that the jury 9 could be exposed to prejudicial publicity during the break. The district court 10 indicated that it would be amenable to canvassing the jury on return from the recess. 11 However, Defendant did not raise the issue again before deliberations resumed. We 12 view Defendant's silence as a tacit admission that the jury was not actually exposed 13 to prejudicial publicity during the break. Cf. State v. Astorga, 2015-NMSC-007, ¶ 14 70, 343 P.3d 1245 (concluding that a defendant "tacitly agree[d] that there was no 15 evidence of actual prejudice" from exposure to pretrial publicity where the defendant 16 did not renew a motion for change of venue after voir dire). Further, we note that the 17 district court instructed the jury at each recess to avoid media coverage about the 18 case and even specifically warned jurors to avoid certain news organizations that 19

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were reporting on the proceedings. Defendant therefore has not shown prejudice 1 arising from the jury's exposure to publicity during the break. 2

{12} In short, we conclude that the circumstances warranted a continuance and the 3 recess did not deny Defendant his right to a fair trial. The recess in deliberations thus 4 fell within the wide "scope of the trial court's inherent authority to control and 5 manage trial proceedings and preserve the integrity of the trial process." Smith, 6 2016-NMSC-007, ¶ 71 (brackets, internal quotation marks, and citation omitted). 7 We therefore decide that the district court did not abuse its discretion by denying 8 Defendant's first motion for mistrial. 9

2. Defendant's second motion for mistrial 10

{13} We next consider the district court's decision to deny Defendant's second 11 motion for mistrial and to resume deliberations on November 9, 2022. Defendant 12 asserts that the court's decision to resume deliberations denied him a fair trial 13 because the jury was at risk of rushing to judgment on return from the break. 14 Defendant points out that one juror had a doctor's appointment on the morning of 15 November 10, 2022, and another juror was unavailable on November 11, 2022, due 16 to prearranged travel. 17

{14} However, before resuming deliberations, the district court asked the jurors to 18 inform the court if they would feel rushed to reach a verdict. None of the jurors 19

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indicated that they would feel rushed. The district court also sought and obtained 1 permission for the jury to deliberate one hour past the courthouse's closing time on 2 November 9, and the jury would have been able to deliberate for almost a full day 3 on November 10 before breaking for a long weekend. Given these circumstances, 4 the district court logically determined that there was sufficient time to resume 5 deliberations on November 9. 6

{15} The timing of the jury's verdict fails to indicate that the jury felt rushed to 7 reach a verdict. Although the jury returned its verdict shortly after resuming 8 deliberations, the jury had already deliberated for a half day and on strong evidence 9 of Defendant's guilt. More to the point, we review the district court's decision to 10 resume deliberations based on the circumstances as presented at the time of the 11 court's decision, not in hindsight. Cf. State v. Perez,1980-NMSC-143, ¶ 5, 95 N.M. 12 262, 620 P.2d 1287 (evaluating whether the district court abused its discretion by 13 denying a motion for a continuance based on information available to the court at 14 the time of its decision). We therefore do not see an abuse of discretion in the district 15 court's decision to deny Defendant's second motion for mistrial and resume 16 deliberations on November 9. 17

{16} In sum, the district court denied Defendant's two motions for mistrial after 18 carefully weighing the facts and circumstances presented. We see no 19

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misunderstanding of law in the district court's decisions. We therefore conclude that 1 the district court did not err by denying Defendant's two motions for mistrial. 2

B. Sufficiency of the Evidence for the Conspiracy Conviction 3

{17} For his second issue, Defendant asserts that his conviction for conspiracy to 4 commit first degree murder was based on insufficient evidence. In reviewing 5 whether sufficient evidence supports a conviction, we consider "whether substantial 6 evidence of either a direct or circumstantial nature exists to support a verdict of guilt 7 beyond a reasonable doubt with respect to every element essential to a conviction." 8 Sutphin, 1988-NMSC-031, ¶ 21. Our task is to determine whether, on careful 9 scrutiny of the record, "any rational jury could have found each element of the crime 10 to be established beyond a reasonable doubt." State v. Garcia, 1992-NMSC-048, ¶ 11 27, 114 N.M. 269, 837 P.2d 862. 12

{18} When reviewing the record, we view the evidence in the light most favorable 13 to the jury's verdict, remaining cognizant that "the jury is free to reject Defendant's 14 version of the facts." State v. Duran, 2006-NMSC-035, ¶ 5, 140 N.M. 94, 140 P.3d 15 515 (internal quotation marks and citation omitted). This Court will "not invade the 16 jury's province as fact-finder by second-guessing the jury's decision concerning the 17 credibility of witnesses, reweighing the evidence, or substituting its judgment for 18 that of the jury." State v. Garcia, 2016-NMSC-034, ¶ 15, 384 P.3d 1076 (brackets, 19

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internal quotation marks, and citation omitted). And "[w]e are at all times mindful 1 of the jury's fundamental role as factfinder in our system of justice and the 2 independent responsibility of the courts to ensure that the jury's decisions are 3 supportable by evidence in the record, rather than mere guess or conjecture." State 4

v. Gallegos, 2011-NMSC-027, ¶ 15, 149 N.M. 704, 254 P.3d 655 (internal quotation 5 marks and citation omitted). 6

1. Factual background to Defendant's conspiracy conviction 7

{19} Defendant was convicted of crimes surrounding the murder of his elderly 8 aunt, Josephine Ortega, at her Northeast Albuquerque home. Defendant's ex-9 girlfriend, Evonne Jaramillo, served as the State's primary witness at trial. 10 According to Jaramillo, Defendant murdered Ortega because he needed money to 11 pay off a $50,000 drug debt and knew that his aunt kept a large amount of cash in 12 her home. 13

{20} Jaramillo testified that, on the night of the murder, she drove a rental car to an 14 apartment complex in Ortega's neighborhood. Jaramillo met Defendant there and 15 joined him in his truck. Sitting together in Defendant's truck, Jaramillo gave herself 16

"eighty ccs" of heroin and then administered "a whole syringe full" of 17 methamphetamine to Defendant. 18

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{21} A short while later, they drove over to Ortega's house and parked on the street. 1 Defendant then called Ortega using Jaramillo's cell phone, telling Ortega that he was 2 outside and wanted to talk. Ortega, who lived alone, let Defendant inside her home. 3

{22} Jaramillo testified that she waited outside for approximately twenty-five 4 minutes while Defendant was inside Ortega's home. Jaramillo said she spent most 5 of this time waiting in the truck, but at one point she exited the vehicle, looked 6 around the outside of the house, smoked a cigarette, and urinated next to Ortega's 7 home. Defendant eventually returned wearing latex gloves and carrying a plastic 8 shopping bag. The bag contained approximately $98,000 in cash, although Jaramillo 9 claimed not to know what was in the bag at the time Defendant left the house. 10

{23} Defendant and Jaramillo drove off together in Defendant's truck, leaving 11 Jaramillo's rental car at the apartment complex near Ortega's home. Later that 12 evening, while Defendant counted the money in the couple's RV, Jaramillo asked 13 how Defendant got the money from Ortega. Defendant told her that "he had to kill 14 her for it." When Jaramillo stated that she had not heard a gunshot, Defendant replied 15 that he had suffocated Ortega because he did not want the neighbors to hear. 16 Jaramillo testified that Defendant gave her some of the money, paid off his debt, and 17 bought more drugs. 18

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{24} Ortega's friend, Ninfa Martinez, testified that she arrived the next morning to 1 pick up Ortega for a monthly lunch date. Martinez discovered the front door to 2 Ortega's house slightly ajar, the sliding back door wide open, and the bedrooms in 3 disarray. Ortega was found lying face down on the floor of her bedroom. Ortega's 4 hands had been restrained behind her back with zip ties. Two plastic shopping bags 5 and a kitchen trash bag had been placed over her head and secured around her neck 6 with duct tape. A medical examiner concluded that Ortega had asphyxiated due to 7 obstruction of her airway and that the manner of death was homicide. 8

{25} About a week prior to the murder, Defendant and Jaramillo were recorded on 9 video surveillance shopping together at a Northeast Albuquerque Walmart. 10 According to a receipt later obtained by investigators, Defendant purchased zip ties, 11 latex gloves, wet wipes, and a flashlight along with a few miscellaneous items. The 12 zip ties were the same brand and type of zip ties that were used to restrain Ortega. 13 At trial, Jaramillo admitted to shopping with Defendant but testified that she did not 14 know what Defendant was purchasing at the time. However, surveillance videos 15 show Jaramillo pushing a nearly empty cart with the zip ties visible from checkout 16 and later leaving the store carrying a plastic shopping bag with the zip ties poking 17 out from the top. 18

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{26} Also about a week prior to the murder, Defendant visited Ortega for Mother's 1 Day, bringing her donuts and flowers. It had been around two years since Defendant 2 had last visited. Jaramillo also waited outside Ortega's home in Defendant's truck 3 during this Mother's Day visit. 4

2. Defendant's conspiracy conviction is supported by substantial evidence 5

{27} We now consider whether the record supports Defendant's conviction for 6 conspiracy to commit willful and deliberate first degree murder. "Conspiracy 7 consists of knowingly combining with another for the purpose of committing a 8 felony within or without this state." NMSA 1978, § 30-28-2(A) (1979). "The gist of 9 conspiracy under the statute is an agreement between two or more persons to commit 10 a felony." Gallegos, 2011-NMSC-027, ¶ 25 (internal quotation marks and citation 11 omitted). "Conspiracy is a specific intent crime." State v. Varela, 1999-NMSC-045, 12 ¶ 42, 128 N.M. 454, 993 P.2d 1280. "In order to be convicted of conspiracy, the 13 defendant must have the requisite intent to agree and the intent to commit the offense 14 that is the object of the conspiracy." Gallegos, 2011-NMSC-027, ¶ 25 (internal 15 quotation marks and citation omitted). "[I]t is not necessary in order to establish a 16 conspiracy to prove a formal agreement to accomplish the illegal act." State v. 17 Deaton, 1964-NMSC-062, ¶ 5, 74 N.M. 87, 390 P.2d 966. "Due to the typically 18 clandestine nature of conspiracies, the prosecution's proof of a conspiracy is seldom 19

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direct evidence of the agreement." State v. Saiz, 2017-NMCA-072, ¶ 24, 404 P.3d 1

422. A conspiracy, therefore, may be established by circumstantial evidence, as 2

"[g]enerally, the agreement is a matter of inference from the facts and 3 circumstances." Gallegos, 2011-NMSC-027, ¶ 26 (internal quotation marks and 4 citation omitted). 5

{28} The parties agree that the jury instruction on Defendant's conspiracy charge 6 is law of the case and controls our inquiry into the sufficiency of the evidence 7 supporting his conviction. State v. Holt, 2016-NMSC-011, ¶ 20, 368 P.3d 409. As 8 relevant to our analysis, the jury was instructed as follows: 9 For you to find the defendant guilty of conspiracy to commit first 10 degree murder by a deliberate killing as charged in Count 2 or 11 conspiracy to commit kidnapping as charged in Count 4 or conspiracy 12 to commit aggravated burglary as charged in Count 6, the state must 13 prove to your satisfaction beyond a reasonable doubt each of the 14 following elements of the crime: 15

1. The defendant and another person by words or acts agreed together 16 to commit first degree murder by a deliberate killing or kidnapping or 17 aggravated burglary; 18

2. The defendant and the other person intended to commit first degree 19 murder by a deliberate killing or kidnapping or aggravated burglary; 20

3. This happened in New Mexico on or between the 18th and 19th days 21 of May, 2017. 22

The jury found that Defendant had conspired to commit first degree murder, 23 kidnapping, and aggravated burglary. Consistent with our case law, the district court 24

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vacated the conspiracy to commit kidnapping and conspiracy to commit aggravated 1 burglary convictions on double jeopardy grounds, leaving in place Defendant's 2 conviction for conspiracy to commit first degree murder by deliberate killing. See 3 Gallegos, 2011-NMSC-027, ¶ 55 (explaining that the Legislature intended to 4 establish "a rebuttable presumption that multiple crimes are the object of only one, 5 overarching, conspiratorial agreement subject to one, severe punishment set at the 6 highest crime conspired to be committed"). 7

{29} Defendant asserts that insufficient evidence supports the jury's finding that 8 Defendant and another person agreed to commit deliberate murder. He emphasizes 9 testimony by Jaramillo where she claimed not to know that Defendant was going to 10 murder Ortega. For example, Jaramillo testified that she did not pay attention to the 11 items Defendant purchased at Walmart that were likely used in the killing, that she 12 did not enter Ortega's home on the night of the murder, and that she did not know 13 what was in the plastic shopping bag Defendant was carrying when he returned to 14 his truck. Defendant also referenced other parts of Jaramillo's testimony where she 15 suggested that she only learned that Defendant killed Ortega later that evening, when 16 she asked him how he got the money. Defendant argues that this testimony shows 17 that he and Jaramillo did not agree to deliberately kill Ortega. 18

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{30} However, Jaramillo's testimony claiming ignorance of Defendant's actions 1 was contradicted by other evidence of the couple's activities before and during the 2 night of the murder. For example, Jaramillo testified that she knew Defendant's 3 motive for killing Ortega. Defendant told Jaramillo that he owed approximately 4 $50,000 to a "street brother" named Jesse and that Defendant's immediate family 5 was in danger if he did not repay the debt. He also told Jaramillo that he knew that 6 Ortega kept a large amount of cash in her home. 7

{31} The State also submitted evidence showing that Jaramillo helped Defendant 8 plan to carry out the murder. There was testimony that Defendant visited his aunt for 9 the first time in two years about a week prior to the murder. Jaramillo testified that 10 she waited outside in Defendant's truck during this visit. The jury could reasonably 11 infer that Defendant and Jaramillo visited Ortega in preparation for the murder. 12

{32} Also, around a week prior to the murder, Defendant and Jaramillo shopped at 13 a Northeast Albuquerque Walmart and purchased items that the jury could 14 reasonably infer were used in the murder, including the zip ties used to restrain 15 Ortega. Although Jaramillo claimed that she did not know what Defendant was 16 purchasing, video surveillance shows that Jaramillo pushed a nearly empty cart with 17 the items through the store, was with Defendant as he paid for the items at checkout, 18 and carried the purchases out of the store. In view of this video evidence, the jury 19

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could have reasonably rejected Jaramillo's claim that she was oblivious to what 1 Defendant was purchasing. 2

{33} Defendant's and Jaramillo's activities on the night of the murder also support 3 an agreement to deliberately kill Ortega. Jaramillo testified that she drove separately 4 to meet Defendant in Ortega's neighborhood. She then joined Defendant in his truck, 5 where they got high together and drove to Ortega's house. Defendant borrowed 6 Jaramillo's cell phone to call Ortega, asking if he could come inside. Ortega knew 7 the Defendant, as he was her nephew and had recently visited. Defendant made no 8 efforts to conceal his identity when entering Ortega's home, creating a reasonable 9 inference that Defendant entered the home intending to kill his aunt after robbing 10 her since she knew him and would be able to identify him. 11

{34} Jaramillo testified that she waited in Defendant's truck for nearly half an hour 12 while Defendant was in Ortega's home. Although Jaramillo asserted that she did not 13 go inside the house, Jaramillo admitted that she smoked a cigarette which was found 14 on Ortega's back patio. Jaramillo also admitted that she urinated next to Ortega's 15 home. According to Ortega's friend who discovered Ortega the next morning, the 16 sliding back doors to the house were wide open the morning after the murder. Based 17 on this evidence, the jury could reasonably infer that Jaramillo either went inside 18

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Ortega's home or at least went close enough to know what Defendant was doing 1 inside the home. 2

{35} Jaramillo also testified that, after the murder, Defendant joined her in the truck 3 carrying a plastic bag containing "hundred-dollar bills." Jaramillo claimed not to 4 know what was in the bag at the time; yet Jaramillo later accepted some of the money 5 when Defendant gave it to her. Jaramillo also drove off with Defendant in his truck, 6 abandoning her rental car at a nearby apartment complex. The State's theory at trial 7 was that Jaramillo served as Defendant's lookout. We agree that this was a 8 reasonable inference based on all of the evidence presented. Indeed, we discern that 9 the jury likely believed Jaramillo insofar as she implicated Defendant in the murder, 10 but disbelieved Jaramillo's claims of ignorance about the murder as merely an 11 attempt to minimize her own culpability. We defer to the jury's determinations of 12 witness credibility. See Garcia, 2016-NMSC-034, ¶ 15. 13

{36} Viewing the record in favor of the jury's verdict, sufficient evidence shows 14 beyond a reasonable doubt that Defendant and Jaramillo conspired to deliberately 15 murder Ortega. From the testimony and exhibits presented, the jury could reasonably 16 infer that Defendant and Jaramillo both knew of and participated in a scheme that 17 involved burglarizing, kidnapping, and killing Ortega in order to obtain the cash in 18 her home, and we defer to such reasonable inferences. See State v. Sena, A-1-CA-19

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38819, mem. op. ¶ 5 (N.M. Ct. App. Oct. 22, 2020) (showing deference to a jury's 1 reasonable inference of a conspiracy based on circumstantial evidence alone); 2 Gallegos, 2011-NMSC-027, ¶ 26 ("The agreement need not be verbal, but may be 3 shown to exist by acts which demonstrate that the alleged co-conspirator knew of 4 and participated in the scheme." (internal quotation marks and citation omitted)). 5 We therefore conclude that the State presented sufficient evidence on which the jury 6 could find that Defendant and Jaramillo conspired to commit first degree murder by 7 deliberate killing. 8

C. Ineffective Assistance of Counsel 9

{37} Defendant raises ineffective assistance of counsel as his third and final issue 10 on appeal. Specifically, Defendant contends that counsel was deficient because three 11 months was an insufficient amount of time to prepare for his defense. 12

{38} Defendant was charged with crimes associated with Ortega's murder on April 13 3, 2018. Throughout most of the pretrial proceedings, Defendant was represented by 14 privately retained counsel. On June 30, 2022, defense counsel moved to withdraw 15 based on a concurrent conflict of interest that had arisen while the case was pending. 16 The district court granted the motion to withdraw over Defendant's objection and 17 appointed the Law Offices of the Public Defender to represent Defendant. Trial 18 counsel entered her appearance on July 26, 2022. Soon after, counsel moved to 19

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continue a September 2022 trial setting and asked that trial be rescheduled for 1 November 1, 2022, or later. The district court subsequently scheduled trial for 2 October 25 through November 7, 2022. 3

{39} Defendant concedes that the district court effectively granted his counsel's 4 motion to continue with this late October trial setting. Thus, we do not consider 5 whether denial of a continuance was an abuse of discretion or resulted in the denial 6 of effective assistance of counsel. See State v. Salazar, 2007-NMSC-004, ¶¶ 13-14, 7

141 N.M. 148, 152 P.3d 135 (articulating the standard of review for claims that the 8 district court abused its discretion in denying a continuance and that the denial of a 9 continuance led to ineffective assistance of counsel); see also State v. Brazeal, 1990-10 NMCA-010, ¶ 15, 109 N.M. 752, 790 P.2d 1033 (evaluating whether the denial of a 11 continuance amounted to ineffective assistance of counsel). Rather, Defendant 12 asserts that three months was insufficient time for trial counsel to prepare to defend 13 him because he was facing capital charges, the State's case relied on multiple 14 witnesses and hundreds of exhibits, and trial counsel had other trials scheduled in 15 the three-month time period between her entry of appearance and trial. 16

{40} An ineffective assistance of counsel claim has two components: first, the 17 defendant must show that "counsel's performance was deficient," and second, the 18 defendant must show that counsel's "deficient performance prejudiced the defense." 19

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State v. Hunter, 2006-NMSC-043, ¶ 12, 140 N.M. 406, 143 P.3d 168 (internal 1 quotation marks and citation omitted). Counsel's performance was deficient if the 2 performance "fell below an objective standard of reasonableness . . . tak[ing] into 3 account all of the circumstances surrounding the defense." Lytle v. Jordan, 2001-4 NMSC-016, ¶ 26, 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation 5 omitted). Counsel's deficient performance prejudiced the defendant if "there is a 6 reasonable probability that, but for the deficient performance, the result of the 7 proceeding would have been different. Id. ¶ 27. A defendant usually bears the burden 8 of establishing both deficiency and prejudice in an ineffective assistance of counsel 9 claim; however, we will presume prejudice on rare occasions where it is unlikely 10 that any counsel, though fully competent, would be able to render effective 11 assistance. State v. Grogan, 2007-NMSC-039, ¶ 12, 142 N.M. 107, 163 P.3d 494; 12 United States v. Cronic, 466 U.S. 648, 659-60 (1984). For example, we presume 13 prejudice when a defendant was completely denied the assistance of counsel at a 14 critical stage of proceedings, when counsel entirely "fail[ed] to subject the 15 prosecution's case to meaningful adversarial testing," or where the defendant was 16

"denied the right of effective cross-examination." Grogan, 2007-NMSC-039, ¶ 12 17 (internal quotation marks and citation omitted); see also State v. Hildreth, 2022-18 NMSC-012, ¶ 32, 506 P.3d 354; Cronic, 466 U.S. at 659. 19

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{41} After reviewing the record, we conclude that Defendant has not shown his 1 trial counsel's performance was deficient. Although counsel was appointed only 2 three months prior to trial, the case was relatively straightforward and trial counsel 3 had the benefit of prior counsel's preparations. Cf. State v. Hernandez, 1993-NMSC-4 007, ¶ 24, 115 N.M. 6, 846 P.2d 312 (listing factors for considering ineffective 5 assistance of counsel claim based on denial of a continuance, including "the amount 6 of time available to prepare a defense, the complexity of the issues involved in the 7 case, the experience of trial counsel, and the reasons proffered by trial counsel for 8 requesting a continuance"). Trial counsel also pursued a reasonable defense strategy, 9 arguing in closing that Jaramillo carried out the murder with other accomplices and 10 only incriminated Defendant in exchange for a plea deal. And trial counsel also 11 effectively cross-examined the State's witnesses and appeared to be well versed in 12 the issues and evidence presented in the case. We therefore see no deficient 13 performance arising from the amount of time that counsel had to prepare for trial. 14

{42} Defendant also has not shown that he was prejudiced by any deficient 15 performance, and we do not view three months as being, per se, an insufficient 16 amount of time to prepare for trial such that we would presume prejudice. For 17 example, in Brazeal, our Court of Appeals concluded that a week was sufficient time 18 for counsel to prepare because it "was a simple case, defense counsel was 19

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