State v. Baisley ( 2023 )

This decision of the New Mexico Court of Appeals was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Court of
Appeals.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40062
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MATTHEW S. BAISLEY,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Steven Blankinship, District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Meryl E. Francolini, Assistant Attorney General
Albuquerque, NM
for Appellee
Harrison, Hart & Davis, LLC
Daniel J. Gallegos
Nicholas T. Hart
Albuquerque, NM
for Appellant
MEMORANDUM OPINION
HANISEE, Judge.
{1} Defendant Matthew Baisley appeals his jury conviction for attempted first degree
murder, contrary to NMSA 1978, Section 30-28-1 (1963), and NMSA 1978, Section 30-
2-1(A)(1) (1994); and aggravated assault with a deadly weapon, contrary to NMSA
1978, Section 30-3-2(A) (1963). Defendant appeals, arguing that several district court
rulings prevented meaningful presentation of his defense, including exclusion of an
expert as a discovery sanction, denial of a continuance to call an unsubpoenaed
witness, and an order prohibiting testimonial hearsay on Defendant’s blood alcohol
content (BAC) level through an expert. Moreover, Defendant argues that counsel was
ineffective in failing to secure a toxicology expert for trial, and that his conviction was
unsupported by sufficient evidence with respect to the intent requirement. We affirm.
BACKGROUND
{2} The night of the assault, Defendant was staying with his mother following a
period of estrangement. Defendant ate dinner with his mother and brother, after which
his brother retired to his room while Defendant and his mother stayed up talking about
“current events.” Defendant’s brother later awoke to yelling in the kitchen, which upon
investigation, revealed blood on the floor and Defendant crouched over his mother, who
was holding her throat. Defendant, armed with a knife, chased his brother while telling
him not to call 911. The brother was able to escape when Defendant stumbled, then fled
the house and alerted law enforcement.
{3} At trial, a responding officer testified that he found Defendant’s mother in the
back yard with a knife sticking out of her upper back, lower neck area. The officer
detained Defendant, who was compliant, and transferred him to the Alamogordo Police
Department. The officer noted Defendant smelled of alcohol and appeared to be under
the influence, which Defendant later testified was the result of having consumed wine
and a combination of vodka mixed with Hawaiian punch. While being processed and
photographed at the police station, Defendant commented unsolicitedly that he “must be
the world’s worst murderer.” Subsequent inspection of the house revealed blood
splatters throughout the kitchen and dining room, and alcohol in two of the cups sitting
on the dining room table. Defendant’s mother sustained over thirty stab wounds and
could not speak or walk for some time following the attack, but she later recovered and
was able to testify at trial. Defendant testified that he had no recollection of events
having taken place between speaking amicably with his mother and being in the police
car.
{4} Before trial, the district court entered a scheduling order requiring the disclosure
of discovery and a final witness list no later than 3:00 p.m. on the day before the jury
trial scheduled for July 2020. The order indicated in bold text that “[f]ailure to timely file a
final trial exhibit and witness list will result in exclusion of exhibits and/or witnesses.”
Following an unopposed continuance, the district court ordered Defendant to file his
witness list by September 14 and the State to file any final witness list by September 28.
Defendant then moved for another continuance in late October to procure more expert
witnesses, which the State opposed citing the previous continuance as well as the
emotional toll the wait was having on Defendant’s mother. Following a hearing, the
district court issued a final scheduling order on November 9 that required Defendant to
identify a toxicology expert by December 4 and to disclose the toxicology expert witness
report by January 2. On December 3, Defendant filed a motion requesting additional
time to find an expert, but on the following day Defendant filed a second amended
witness list naming a toxicologist. At a subsequent hearing in January, Defendant
indicated that counsel had spoken with the proposed toxicologist and provided
additional information at his request the following day, but they had not agreed to a
contract nor had the toxicologist responded to the follow-up information in the
intervening month. No toxicology expert witness report was ever disclosed. In a written
order issued January 20, 2021, the district court determined that the appropriate
sanction would be to exclude the proposed toxicologist and any other toxicologist
employed by the defense from the upcoming April 5, 2021 trial.
{5} Lastly on April 2, 2021, Defendant moved to vacate the trial date to subpoena the
State’s toxicology expert after the State indicated that it would not be calling that expert
to testify to Defendant’s BAC on the night of the attack. The State indicated to defense
counsel that it had previously debated whether to call its toxicologist as a matter of trial
strategy, and therefore was unconcerned when the toxicologist was ultimately
unavailable for trial due to a family emergency out of the country. The district court
denied Defendant’s motion as Defendant had not named the State’s toxicologist as an
expert on his own witness list, and therefore was not entitled to subpoena that expert at
such a late hour. Moreover, the district court noted that the factors to consider in
granting a continuance, as enumerated in State v. Torres, 1999-NMSC-010, ¶ 10, 127
N.M. 20, 976 P.2d 20, did not favor granting the continuance.
{6} Trial commenced, during which the State moved to exclude discussion of
Defendant’s BAC toxicology results from the night of the attack as no expert was
available to discuss the accuracy of the testing. Outside the presence of the jury, the
district court ruled that Defendant’s forensic psychology expert could testify that
Defendant was drunk, and moreover, that his opinion was based on a toxicology report
that indicated alcohol was in Defendant’s bloodstream, but the expert was not permitted
to testify to a numeric BAC value. The jury therefore heard Defendant’s expert’s opinion
that Defendant could not form an intent to kill while blacked out due to alcohol
consumption, and the State’s expert’s opinion that Defendant could still form an intent to
kill even in an alcoholic blackout, as evidenced by Defendant’s demonstrated
awareness of the circumstances surrounding the assault. Defendant was found guilty of
attempted first degree murder and aggravated assault with a deadly weapon.
DISCUSSION
I. Exclusion of Toxicology Expert
{7} Defendant first argues that the district court, in excluding his toxicology expert as
a discovery sanction, failed to properly consider all the factors required to exclude a
witness under State v. Le Mier: “culpability, prejudice, and lesser sanctions.” 2017-
NMSC-017, ¶ 20, 394 P.3d 959. “The propriety of a trial court’s decision to exclude or
not to exclude witnesses is reviewed for abuse of discretion.” Id. ¶ 22. “An abuse of
discretion occurs when the ruling is clearly against the logic and effect of the facts and
circumstances of the case.” Id. (internal quotation marks and citation omitted). “We
cannot say the trial court abused its discretion by its ruling unless we can characterize it
as clearly untenable or not justified by reason.” Id. (internal quotation marks and citation
omitted).
{8} Though the district court’s January 20, 2021 order did not provide individualized
headings as to each Le Mier factor, the court’s findings do address each component of
the analysis. To culpability, the district court observed Defendant’s multiple prior
opportunities to procure a witness and Defendant’s failure to do so by extended
deadlines. To prejudice, the district court found that both the State and the court were
prejudiced by the delay and failure to disclose the expert opinion report that had “never
been authored.” The district court noted that well after a month past the deadline to
secure an expert, the purported toxicologist had yet to be hired or produce a report. As
to lesser sanctions, the district court noted—as was the case in Le Mier, see id. ¶ 28—
that previous extensions of time had been afforded to Defendant and that exclusion
came only after those opportunities were exhausted fruitlessly.
{9} We discern no error in the district court’s analysis under Le Mier. “[T]he district
court was not obligated to consider every conceivable lesser sanction before imposing
witness exclusion.” Id. ¶ 27. Especially as Defendant had failed to procure any
toxicology expert and accompanying report within the well-defined scheduling
deadlines, we are unpersuaded the district court abused its discretion in excluding any
potential toxicology experts, including the one identified by Defendant, given the
looming trial date and Defendant’s repeated failure to secure such an expert.
II. Denied Continuance
{10} Defendant also argues that the district court erred in denying him a continuance
to subpoena and secure the attendance of the State’s toxicology expert on the eve of
trial once he became aware the State would not call her. “The grant or denial of a
motion for a continuance rests within the sound discretion of the trial court, and the
burden of establishing an abuse of discretion rests with the defendant.” Torres, 1999-
NMSC-010, ¶ 10 (internal quotation marks and citation omitted).
There are a number of factors that trial courts should consider in
evaluating a motion for continuance, including [(1)] the length of the
requested delay, [(2)] the likelihood that a delay would accomplish the
movant’s objectives, [(3)] the existence of previous continuances in the
same matter, [(4)] the degree of inconvenience to the parties and the
court, [(5)] the legitimacy of the motives in requesting the delay, [(6)] the
fault of the movant in causing a need for the delay, and [(7)] the prejudice
to the movant in denying the motion.
Id.
{11} The factors delineated in Torres do not favor Defendant’s continuance request.
The requested delay was for an unspecified amount of time until the State’s toxicologist
returned to the country after handling a family emergency. Such a length of time could
delay trial significantly. We agree with the district court that further delay would likely
secure the toxicologist’s attendance at trial, but the other factors weigh against granting
the motion, such as the several other previous delays that had postponed trial, the
significant inconvenience of continuing trial the day beforehand, and the relative
weakness of Defendant’s claimed need to examine a witness he had not subpoenaed.
The district court was not persuaded “that there is a legitimate motive for requesting a
continuance.” Defendant contends that in making this determination, “the district court
overlooked the importance of toxicology evidence to [his] lack of capacity defense.”
Upon careful review of the record, we are unpersuaded that Defendant has carried his
burden that the district court erred in this determination. See State v. Aragon, 1999-
NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that we presume correctness in
the trial court’s rulings and the burden is on the appellant to demonstrate trial court
error). As for prejudice, while the exact BAC toxicology report and the toxicologist’s
related opinions could not be presented to the jury, circumstantial evidence,
Defendant’s own admissions, and the testimony of his forensic psychology expert
established that Defendant was thoroughly inebriated when undertaking the actions for
which he was convicted. We conclude the district court’s denial of Defendant’s motion
was not an abuse of discretion.
III. Prohibited Hearsay Testimony About BAC
{12} Defendant next argues that the district court erred in excluding any mention of his
BAC toxicology results during testimony by Defendant’s forensic psychology expert.
Defendant insists that the BAC level was relied on by his forensic psychologist in
forming his expert opinion, which in turn should be admissible under Rule 11-703
NMRA. “We review the admission of evidence pursuant to an exception or an exclusion
to the hearsay rule under an abuse of discretion standard by which deference is given
to the district court’s ruling.” State v. Largo, 2012-NMSC-015, ¶ 22, 278 P.3d 532.
{13} Rule 11-703 states that “[a]n expert may base an opinion on facts or data in the
case that the expert has been made aware of or personally observed.” The expert may
rely on inadmissible facts and data to form their opinion, and “the proponent of the
opinion may disclose [the inadmissible evidence] to the jury only if [its] probative value
in helping the jury evaluate the opinion substantially outweighs [its] prejudicial effect.” Id.Defendant maintains his BAC level would have been particularly probative as to his
ability to form a requisite intent while it provides little prejudice to the State.
{14} Under the circumstances of this case, we disagree. Defendant’s forensic
psychology expert was permitted to testify to his opinion—that Defendant was blacked
out consistent with the theory of defense—and that his opinion was based on a
toxicology report. In this case, the probative value of the numerical BAC reading without
context from an expert able to discuss the meaning of the value is slight. As the district
court also correctly observed, the jury would be hearing a BAC number lacking
verification for when the blood draw was done, whether there was a proper chain of
custody for the sample, or whether the test was done in compliance with proper
procedures. As the jury would have no indication that the number itself was reliable—or
what the number means in a practical sense—we share the district court’s concern that
it would more likely confuse issues and possibly lead to misuse by the jury. To reiterate,
Defendant was still able to present his expert’s opinion that Defendant had blacked out,
eliminating his ability to form intent, into evidence. We disagree with Defendant that
Rule 11-703 operated to compel admission of his BAC at trial.
IV. Ineffective Assistance of Counsel
{15} Defendant argues that his trial counsel provided ineffective assistance by failing
to retain a toxicology expert or subpoena the State’s expert to ensure her attendance at
trial. “We review claims of ineffective assistance of counsel de novo.” State v. Miera,
2018-NMCA-020, ¶ 30, 413 P.3d 491 (internal quotation marks and citation omitted).
“To establish ineffective assistance of counsel, a defendant must show: (1) counsel’s
performance fell below that of a reasonably competent attorney; (2) no plausible,
rational strategy or tactic explains counsel’s conduct; and (3) counsel’s apparent failings
were prejudicial to the defense.” Id. (internal quotation marks and citation omitted).
“When an ineffective assistance claim is first raised on direct appeal, we evaluate the
facts that are part of the record.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657,
54 P.3d 61. “If facts necessary to a full determination are not part of the record, an
ineffective assistance claim is more properly brought through a habeas corpus petition,
although an appellate court may remand a case for an evidentiary hearing if the
defendant makes a prima facie case of ineffective assistance.” Id.{16} Having reviewed the trial record, we are unpersuaded on direct appeal that
Defendant was prejudiced by ineffective assistance of his trial counsel. Critical to
Defendant’s theory of the case, Defense counsel did ensure that a forensic psychologist
expert appeared and testified that Defendant was suffering from a blackout due to
alcohol intoxication at the time of the attempted murder and was, therefore, incapable of
forming the requisite intent to kill. From the record on appeal, we conclude that
Defendant has not presented a prima facie case of ineffective assistance of counsel
such as to warrant a remand for an evidentiary hearing.
V. Sufficiency of the Evidence
{17} Lastly, Defendant argues that the evidence presented was insufficient to prove
that he acted with a deliberate intent to kill. “The test for sufficiency of the evidence is
whether substantial evidence of either a direct or circumstantial nature exists to support
a verdict of guilty beyond a reasonable doubt with respect to every element essential to
a conviction.” State v. Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal
quotation marks and citation omitted). The reviewing court “view[s] the evidence in the
light most favorable to the guilty verdict, indulging all reasonable inferences and
resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,
2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. We disregard all evidence and
inferences that support a different result. See State v. Rojo, 1999-NMSC-001, ¶ 19, 126
N.M. 438, 971 P.2d 829.
{18} “Jury instructions become the law of the case against which the sufficiency of the
evidence is to be measured.” State v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726
P.2d 883. In this case, the jury instruction instructed them to find Defendant guilty if (1)
Defendant intended to kill his mother, (2) he had the deliberate intention to take away
his mother’s life, and (3) Defendant was not so intoxicated at the time of the offense “to
the extent of being incapable of forming an intention to kill.” Defendant’s argument
focuses on the second element, the deliberate intent to kill.
{19} The jury heard from Defendant’s expert who opined that Defendant could not
form an intent to kill while blacked out, and they heard from the State’s expert who
opined Defendant could still form an intent as demonstrated by Defendant’s own actions
and awareness at the time of the assault. The jury likewise heard evidence that the
knife Defendant used in the attack was from a knife block several feet away in the
kitchen, which required Defendant to walk around a peninsula counter to the knife block
and back to his mother before attacking her with the knife he retrieved. Defendant’s
brother testified that Defendant communicated to him that he should not call the police,
from which the jury could reasonably infer that Defendant knew the nature of the
situation and was aware of his criminal behavior. Responding officers found the knife in
Defendant’s mother’s neck after chasing his brother with it, indicating he returned
deliberately to attack his mother again after the initial assault in the kitchen. See State v.
Baca, 2019-NMSC-014, ¶ 26, 448 P.3d 576 (determining a deliberate intent to kill was
supported by blood splatter analysis indicating the victim changed positions over “a
prolonged, sustained attack”). Defendant even commented during booking on the failed
nature of his effort to murder his mother. Considering the foregoing, we hold sufficient
evidence was presented to the jury such that they could reasonably infer that Defendant
deliberately intended to kill his mother.
CONCLUSION
{20} For the foregoing reasons, we affirm.
{21} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
JENNIFER L. ATTREP, Chief Judge
GERALD E. BACA, Judge