Preview:

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
CORRECTION PAGE: Cover pg, ln 13, changed "Elason" to "Eleanor"; SCMO Filed 2/14/12; St v. Lyster, No. 31,493, FYWS

1

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO, 3 4 v. 5 LARRY LYSTER, 6 Defendant-Appellant. Plaintiff-Appellee, NO. 31,493

7 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 8 James Waylon Counts, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appllee 12 Jacqueline L. Cooper, Chief Public Defender 13 Eleanor Brogan, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 17 FRY, Judge. 18 Defendant appeals his convictions for aggravated battery (felony, great bodily MEMORANDUM OPINION

19 harm) and battery (petty misdemeanor). [RP Vol.II/483, 499] The notice proposed

1 to affirm and Defendant filed a timely memorandum in opposition and motion to 2 amend the docketing statement. We deny Defendant's motion to amend his docketing 3 statement. We further remain unpersuaded by Defendant's arguments, and therefore 4 affirm. 5 Defendant seeks to amend his docketing statement to argue that he was denied

6 effective assistance of counsel. [MIO 1, 12-14] Defendant argues his trial counsel 7 was ineffective because: counsel spent only an hour meeting with him before the first 8 trial and did not communicate with him before the second trial; counsel did not 9 prepare for trial and failed to conduct any pre-witness interviews; counsel did not 10 request the surveillance videotape showing the altercation; counsel refused to find any 11 of the other witnesses that saw the altercation; and counsel failed to call a defense 12 expert witness at trial. [MIO 13] These asserted deficiencies, however, either are not 13 of record or otherwise involve trial strategy. See State v. Stenz, 109 N.M. 536, 538, 14 787 P.2d 455, 457 (Ct. App. 1990) (holding that trial counsel is not ineffective for 15 failure to make a motion that is not supported by the record); Lytle v. Jordan, 16 2001-NMSC-016,

Download CA31493.pdf

New Mexico Law