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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO, 8 9 v. 10 JOSEPH APODACA, 11 Defendant-Appellant. Plaintiff-Appellee, NO. 29,408

12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 13 Teddy L. Hartley, District Judge 14 Gary K. King, Attorney General 15 Farhan Khan, Assistant Attorney General 16 Santa Fe, NM 17 for Appellee 18 Law Office of Craig C. Kling 19 Craig C. Kling 20 San Diego, CA 21 for Appellant

22 23 GARCIA, Judge. 24

MEMORANDUM OPINION

Defendant appeals his conviction for aggravated battery against a household

1 member contrary to NMSA 1978, Section 30-3-16(C) (2008). On appeal, Defendant 2 claims: (1) the prosecutor engaged in misconduct during closing argument; (2) he was 3 denied effective assistance of counsel; (3) the district court erred by not removing the 4 prosecutor from the case; and (4) the trial court erred by admitting hearsay testimony 5 from Victim's mother. 6 conviction. 7 FACTUAL BACKGROUND 8 Defendant was charged with aggravated battery against his girlfriend (Victim). As discussed in this opinion, we affirm Defendant's

9 On August 23, 2007, Victim's mother (Juanita) was at work when she received a call 10 from Victim. According to Juanita, Victim was upset and had been crying. Victim 11 told her mother that she and Defendant had a fight, Defendant had choked her until 12 she passed out, and when she awoke she fled her home. When Juanita went to meet 13 Victim, she saw that Victim was upset and crying, was nervous and scared, and had 14 red marks on her neck. Juanita called police, and Officer Crow responded to the call. 15 Officer Crow testified that Victim had visible signs of injury on her neck, including 16 reddish-blue marks that were linear in nature and consistent with strangulation. Victim 17 told Officer Crow about the events that led to her injuries. The State issued three 18 subpoenas commanding Victim's presence at trial, but she did not appear on the day 19 of trial. Consequently, the district court allowed Victim's mother to testify about

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1 statements Victim made to her based on the excited utterance exception to the hearsay 2 rule. See Rule 11-803(B) NMRA. Defendant was found guilty following a jury trial 3 and now appeals. 4 DISCUSSION 5 Prosecutorial Misconduct 6 During closing argument, the State told the jury, "the victim has decided not to

7 show up, I don't have a victim to give you, I don't have her, she did not want to come 8 to court, that's fine." Defense counsel, in his closing argument, told the jury the "one 9 thing that you do not have is anyone that was present at the time, there was no one 10 there at the time." Counsel also reminded the jury that Victim's mother testified about 11 something she heard over a year before trial. The State, in its rebuttal argument, 12 commented,"[D]efendant himself, through [his attorney], has subpoena power, he has 13 the ability to issue a subpoena." Defense counsel objected on the grounds that the 14 district court had already told the jury that Defendant has "no obligation to do 15 anything." In response, the State claimed that it was permissible to make a comment 16 that Defendant did not call someone as a witness. Following this exchange, the 17 district court directed the parties to proceed with closing argument. After the jury

18 submitted its verdict, defense counsel requested that the district court revisit the claim 19 that the State made an improper remark during closing. Defense counsel presented

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1 argument and requested a mistrial. The district court did not grant the motion for 2 mistrial, but allowed the parties ten days to brief the issue. The State filed a brief with 3 the district court, but defense counsel did not file a brief. 4 We note that the district court did not make a ruling on this issue after

5 requesting supplemental briefing. However, the State does not raise preservation, so 6 we will address the merits of Defendant's argument We review claims of

7 prosecutorial misconduct for abuse of discretion. State v. Duffy, 1998-NMSC-014, 8

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