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State v. Sanchez7/26/1995
s not reasonably competent and that counsel's incompetence caused the defendant prejudice." . Appellants have not demonstrated that their counsel was ineffective. When reviewing a claim of ineffective assistance of counsel, we do not second-guess defense counsel's trial strategy and tactics. Id. Further, an assertion of prejudice is not sufficient to demonstrate that a choice caused actual prejudice. See
The record indicates that Appellants did not use all of their peremptory challenges. They exercised eight of the twelve permitted them. That fact suggests that the juror possessed qualities that defense counsel wanted represented on the jury. It is not hard to imagine that those qualities might have outweighed the juror's sister's employment. In addition, Appellants have not demonstrated how they were actually prejudiced by the juror's participation in the trial. Cf. ) (defense counsel's question of his client elicited what could reasonably be viewed as a blatant lie in a case the outcome of which turned largely on the defendant's credibility), cert. denied , 114 N.M. 550, 844 P.2d 130 (1992).
For the denial of a continuance to create a presumption of ineffective assistance of counsel, the circumstances surrounding the denial must show that a defendant is necessarily prejudiced. . "If the denial of a continuance precludes the defendant from raising a potential avenue of defense, a presumption of prejudice is appropriate." Id. A presumption is not appropriate on the present record. Appellants used the information concerning Vicente's blood alcohol level to challenge his credibility. Because Appellants have not shown they were otherwise prejudiced by the denial of the continuance, we do not believe it can be presumed from the present record that Appellants received ineffective assistance of counsel because their counsel desired, but were unable to obtain, a continuance during trial.
Conclusion
The judgments and convictions are affirmed.
IT IS SO ORDERED.
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