1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 30,526
10 MILTON BROCK,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Neil C. Candelaria, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM
16 for Appellee
17 Chief Public Defender 18 Kimberly Chavez Cook, Assistant Appellate Defender 19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
23 Defendant appeals his convictions for DWI, leaving the scene of an accident,
24 and no insurance. We proposed to affirm in a notice of proposed summary 1 disposition, and Defendant has filed a memorandum in opposition. In his
2 memorandum in opposition, Defendant also seeks to raise new issues that were not
3 identified in his docketing statement. We construe and analyze these new issues as
4 an implicit motion to amend the docketing statement. Having considered the
5 arguments raised by Defendant in his memorandum and implicit motion and
6 remaining unpersuaded, we affirm his convictions and deny his motion to amend the
7 docketing statement.
8 Ineffective Assistance of Counsel
9 In his docketing statement, Defendant claimed trial counsel was ineffective in
10 two ways: (1) failing to object after the State’s witnesses violated the district court’s
11 order prohibiting it from introducing hearsay; and (2) failing to move for a mistrial
12 when a comment was made concerning Defendant’s silence. [DS 8] In our notice of
13 proposed summary disposition, we proposed to affirm on both contentions finding that
14 counsel was not ineffective and to the extent any errors were made, Defendant was not
15 prejudiced.
16 In his memorandum in opposition, Defendant reasserts his ineffective assistance
17 contentions and includes three additional instances of trial counsel’s alleged
18 deficiencies. [MIO 6-15] He adds allegations that counsel was deficient in failing to
19 obtain a copy of an Albuquerque Transit Incident Report (“Incident Report”) that was
20 allegedly prepared after the accident, failing to present Defendant’s theory of defense,
2 1 and failing to object to “Repeated Occurrences of Prosecutorial Misconduct.” [MIO
2 2, 10-15]
3 Turning to Defendant’s first contention, the district court excluded any
4 testimony regarding the identification of Defendant by a witness, Sandra Kamm.
5 [MIO 7; RP 170] Defendant claims that counsel should have objected when the driver
6 of the bus, Rick Baker, mentioned there was another witness because Baker’s
7 identification was doubtful, and his statement regarding another witness improperly
8 bolstered his credibility and was highly prejudicial. [MIO 3, 8-9] We are not
9 convinced. As discussed in our previous notice, we fail to see how Defendant was
10 prejudiced given that there were no details as to the substance of that other witness’s
11 testimony and nothing to suggest that this witness would corroborate Baker’s version
12 of events. [MIO 8]
13 In our previous notice, we also observed that the district court found that Baker
14 never testified regarding another witness. [RP 172] Defendant contends that he and
15 his district court counsel “distinctly recall this testimony,” and therefore claims that
16 the case should be reassigned to the general calendar so that the trial transcript can be
17 examined. [MIO 3 n. 3] We disagree because even if Baker mentioned another
18 witness, Defendant has failed to show he was sufficiently prejudiced by this non-
19 specific comment to establish a prima facie case of ineffective assistance, and as
20 discussed in our previous notice, he has failed to convince us that the failure to object
3 1 was not a matter of trial tactics employed so as not to draw attention to the fact that
2 there might have been another witness who saw Defendant driving.
3 We now turn to the statement of the arresting officer, Lopez, who testified that
4 as Defendant was walking back to the scene of the accident, a couple of people,
5 including Baker, “pointed to” Defendant. [MIO 3, 8; RP 172] For the reasons
6 discussed in our previous notice of proposed summary disposition, we are not
7 convinced that the failure to object to this vague statement was not a matter of trial
8 tactics nor are we convinced that Defendant suffered any prejudice as a result of this
9 statement.
10 As his second assertion of ineffective assistance, Defendant claims counsel was
11 ineffective in failing to move for a mistrial based on an improper comment on
12 Defendant’s silence. [DS 8] We affirm for the reasons set forth in our notice of
13 proposed summary disposition and for the reasons set forth later in this opinion when
14 analyzing Defendant’s claims of prosecutorial misconduct.
15 Motion to Amend the Docketing Statement
16 In his memorandum in opposition, Defendant raises three new allegations of
17 ineffective assistance of counsel. [MIO 2, 10-15] He contends that counsel was
18 ineffective in failing to obtain a copy of the Incident Report that was allegedly
19 prepared after the accident, failing to present Defendant’s theory of defense, and
20 failing to object to numerous instances of prosecutorial misconduct. [MIO 2, 10-15]
4 1 As Defendant did not raise these matters in his docketing statement, we
2 consider these contentions as contained in an implicit motion to amend the docketing
3 statement. See Rule 12-210(D)(3) NMRA (stating in part that in any memorandum
4 in opposition, “the party shall be restricted to arguing only issues contained in the
5 docketing statement [but] [t]he docketing statement or statement of the issues may be
6 amended at this time for good cause shown with the permission of the appellate
7 court”); Rule 12-208(F) NMRA (providing that this Court “may, upon good cause
8 shown, allow the amendment of the docketing statement”). In cases assigned to the
9 summary calendar, this Court will deny a motion to amend the docketing statement
10 if it raises issues that are not viable, even if the issues allege fundamental or
11 jurisdictional error. State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App.
12 1989), overruled on other grounds by State v. Salgado, 112 N.M. 537, 817 P.2d 730
13 (Ct. App. 1991).
14 Incident Report
15 Defendant claims that his trial counsel was ineffective in failing to attempt to
16 obtain the Incident Report prepared after the accident. [MIO 2-3, 10] We are not
17 persuaded that Defendant has established a prima facie case of ineffective assistance
18 on this basis because there is nothing to suggest that the Incident Report would have
19 provided exculpatory evidence by conforming to Baker’s initial description to the
20 police. [MIO 10] All we have is counsel’s assertions that Defendant “believes” the
5 1 Incident Report would have included Mr. Baker’s contemporaneous description of the
2 driver. [MIO 10] Baker may have initially told Lopez that the driver was Hispanic and
3 five feet eight inches tall, [MIO 1-2] but after Defendant returned to the scene, Baker
4 specifically identified him to Lopez as the person driving. [RP 12, 52, 56]
5 Theory of Defense
6 We are also not persuaded that trial counsel was deficient in failing to present
7 Defendant’s theory of defense. [MIO 11] Defendant claims that he told trial counsel
8 that his car was stolen and claims counsel should have taken additional steps to
9 investigate the actual driver’s identification or elicit testimony from Defendant
10 highlighting that the car was stolen. [MIO 11] He notes that he told appellate counsel
11 that he did not have the keys when he tried to obtain his car from the impound lot,
12 [MIO 11] but counsel did not elicit this testimony on the stand. [MIO 11] We
13 disagree.
14 First, our review of the record indicates that counsel did present Defendant’s
15 theory because the record suggests that the jury was told that Defendant never found
16 his keys. [RP 174] Moreover, even if counsel did not fully present Defendant’s
17 theory that his car was driven and then stolen by someone else, we are not persuaded
18 that this failure represents a prima facie case of ineffective assistance of counsel.
19 Although Defendant contends that he told appellate counsel he did not have the keys
20 when he tried to obtain his car from the impound lot, he admits this contention is not
6 1 part of the record so it is unknown whether trial counsel had this information. [MIO
2 11 n. 8] See generally, State v. Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d
3 296 (“Matters not of record present no issue for review.”). Furthermore, the record
4 indicates at the time Lopez approached him, Defendant was in possession of the keys
5 to the Buick involved in the accident. [MIO 4; RP 54] There was also evidence that
6 Defendant was the only person in the car at the time of the accident. [RP 171]
7 Therefore, trial counsel could have decided as a matter of trial tactics not to elicit
8 testimony from Defendant that he did not have his keys when he retrieved the vehicle
9 from the impound lot.
10 Finally, Defendant claims that counsel was deficient for failing to object to
11 “Repeated Occurrences of Prosecutorial Misconduct.” [MIO 11-15] The alleged
12 misconduct includes the prosecutor’s actions in: (1) failing to disclose or preserve the
13 Incident Report; (2) failing to instruct or control the State’s witnesses; (3) eliciting
14 testimony from Lopez regarding Defendant’s silence at the scene; and (4) making
15 inappropriate and inflammatory comments during closing. [MIO 12-14] All of these
16 alleged deficiencies are considered in the discussion of other issues in this opinion
17 including Defendant’s direct allegations of prosecutorial misconduct, his allegation
18 that counsel should have objected to the testimony of Baker and Lopez regarding other
19 witnesses at the scene, his allegation that Lopez was improperly allowed to testify as
20 to Defendant’s silence, and his allegation that defense counsel should have requested
7 1 the Incident Report. Therefore, for the reasons set forth in our discussion of those
2 other issues, we are not convinced that Defendant has established a prima facie case
3 of ineffective assistance of counsel based on counsel’s failure to object to alleged
4 instances of prosecutorial misconduct.
5 In sum, we deny Defendant’s implicit motion to amend his docketing statement
6 to include additional allegations of ineffective assistance of counsel because he has
7 failed to raise any viable issue. See State v. Sommer, 118 N.M. 58, 60, 878 P.2d 1007,
8 1009 (Ct. App. 1994) (denying a motion to amend the docketing statement based upon
9 a finding that the motion and the argument offered in support thereof were not viable).
10 Because Defendant has failed to show that he was prejudiced by any of counsel’s
11 alleged deficiencies, we reject Defendant’s claim that all of counsel’s errors, even if
12 individually insufficient, cumulatively rise to the level of a violation of his right to
13 effective counsel. [MIO 15]
8 1 Prosecutorial Misconduct
2 Defendant also seeks to amend his docketing statement to include claims that
3 the prosecutor’s “repeated improprieties” constitute reversible prosecutorial
4 misconduct, barring retrial. [MIO 15-31] The alleged misconduct includes the
5 prosecutor’s actions in: (1) failing to disclose or preserve the Incident Report; (2)
6 failing to instruct or control the State’s witnesses; (3) eliciting testimony from Lopez
7 regarding Defendant’s silence and comments on that silence; and (4) making improper
8 comments during closing by asking the jurors if they knew anyone who had been the
9 victim of DWI or had been killed by a drunk driver. [MIO 15-31]
10 Defendant admits that his contentions of prosecutorial misconduct were not
11 preserved. [MIO 16-18] Therefore, we review these allegations for fundamental
12 error. See State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. To find
13 fundamental error, we must be convinced that the prosecutor’s conduct created “a
14 reasonable probability that the error was a significant factor in the jury’s deliberations
15 in relation to the rest of the evidence before them.” State v. DeGraff,
16 2006-NMSC-011, ¶ 21, 139 N.M. 211, 131 P.3d 61 (internal quotation marks and
17 citation omitted). Moreover, we will only set aside a jury verdict if (1) the defendant’s
18 guilt is so doubtful as to shock the conscience, or (2) there has been an error in the
19 process implicating the fundamental integrity of the judicial process. Barber,
20 2004-NMSC-019, ¶ 17-18.
9 1 Defendant first claims that the prosecutor engaged in misconduct by eliciting
2 testimony in violation of the district court’s order excluding any reference to Kamm’s
3 on-scene identification. [MIO 18-20] He claims the prosecution wrongfully elicited
4 Baker’s testimony regarding another witness and Lopez’s testimony that he received
5 identifying information from witnesses at the scene. [MIO 18] We disagree.
6 First, there is nothing to indicate that the prosecution elicited any comments
7 from Baker or Lopez as to any other witness. To the contrary, the record shows that
8 when Lopez attempted to tell the jury what a witness told him, the prosecutor cut him
9 off and said they could not talk about that. [MIO 8; RP 172] Therefore, the only
10 potentially objectionable statements were Lopez’s statement that a couple of people,
11 including Baker, “pointed to” Defendant when he approached the scene and Baker’s
12 alleged non-specific mention of another witness. [MIO 3, 8; RP 172] As discussed
13 when analyzing Defendant’s ineffective assistance claim, we are not convinced that
14 such isolated comments are enough to prejudice Defendant or to warrant reversal.
15 We are not convinced that our Supreme Court’s opinion in State v.
16 McClaugherty, 2008-NMSC-044, 144 N.M. 483, 188 P.3d 1234, warrants a different
17 result. [MIO 18] In that case, the prosecutor recited incriminating statements
18 allegedly provided to the police by two witnesses who were never called to testify and
19 whose statements were never even shown to exist. Id. ¶¶ 2, 41. In this case, there is
20 nothing to suggest that the prosecutor elicited the testimony and the testimony consists
10 1 only of a vague reference to persons who “pointed to” Defendant, not specific
2 allegations or statements of an absent witness. [RP 172] Therefore, we deny
3 Defendant’s motion to amend his docketing statement to contend that the prosecution
4 committed misconduct in eliciting improper testimony from Baker or Lopez.
5 Defendant next contends that the prosecution committed reversible misconduct
6 in failing to preserve or produce evidence that might have impeached Baker’s in-court
7 identification, specifically, the Incident Report. [MIO 20-23] We disagree because,
8 as previously discussed, there is nothing to suggest that the Incident Report contained
9 exculpatory or impeaching evidence. [RP 177] See State v. Montoya, 101 N.M. 424,
10 426, 684 P.2d 510, 512 (1984) (rejecting the defendant’s assertion that the State
11 committed reversible error by withholding certain records because the defendant
12 failed to show how he was prejudiced by the failure to receive the material).
13 As his third contention, Defendant claims the prosecutor wrongfully elicited
14 testimony constituting a comment on his silence and then wrongfully commented on
15 that testimony during closing. [MIO 23-29] As discussed in our previous notice, at
16 trial Defendant testified that he was not driving his car but allowed someone else to
17 do so. [RP 174] He also testified that he remembered telling Lopez that he was not
18 driving but that he never had an opportunity or the time to tell him someone else was
19 driving. [RP 174] Lopez testified that Defendant never told him this. [RP 173, 178;
11 1 DS 7] The prosecution also asked Lopez if Defendant ever identified anyone else who
2 was driving, and Lopez answered no. [RP 178]
3 In our notice of proposed summary disposition, we proposed to reject a similar
4 contention raised by Defendant under the auspices of his ineffective assistance claim.
5 [DS 6-7] We proposed to affirm because Lopez’s testimony does not concern
6 Defendant’s silence after he was arrested or after Miranda warnings were given, nor
7 does it concern Defendant’s failure to testify at trial because Defendant did in fact
8 testify. See State v. Garvin, 2005-NMCA-107, ¶ 23, 138 N.M. 164, 117 P.3d 970
9 (noting in part that the constitutional privilege against self-incrimination prohibits the
10 prosecutor from commenting on a defendant's failure to testify at trial and due process
11 forbids a prosecutor from commenting on a defendant's silence after receiving
12 Miranda warnings); see also DeGraff, 2006-NMSC-011, ¶ 14 (“We have recognized
13 the general absence of a constitutional limitation on using pre-arrest silence to
14 impeach[.]”); State v. Foster, 1998-NMCA-163, ¶ 13-14, 126 N.M. 177, 967 P.2d 852
15 (noting that the prosecution’s use of a defendant’s pre-arrest silence for impeachment
16 purposes does not infringe upon the defendant’s Fifth Amendment rights). We also
17 observed that Defendant failed to make any showing that the probative value of
18 Lopez’s answer was substantially outweighed by its prejudicial value because
19 admitting evidence that Defendant had failed to identify or even mention the existence
20 of another driver has “significant probative value.” Foster, 1998-NMCA-163, ¶ 15
12 1 (holding that evidence that the defendant had previously failed to mention an incident
2 that was integral to his defense had “significant probative value” because “[a]
3 reasonable person could properly find a telling inconsistency between [the]
4 [d]efendant’s trial testimony and the statement he gave police”).
5 Defendant recognizes that there is usually no constitutional limitation to using
6 a defendant’s pre-arrest silence to impeach his testimony. [MIO 23] See DeGraff,
7 2006-NMSC-011, ¶ 14. He claims however that impeachment was not warranted
8 because Lopez testified as to his silence before he took the stand and denied driving.
9 [MIO 25] We disagree.
10 In Foster, the defendant made the same argument when an officer testified
11 regarding the defendant’s failure to mention some potentially exculpatory evidence
12 during a pretrial interview before the defendant had introduced that evidence during
13 his direct testimony. 1998-NMCA-163, ¶ 6. This Court recognized that the
14 defendant’s failure to mention the exculpatory evidence during the pretrial interview
15 might not be relevant, and therefore admissible, until the defendant introduced the
16 evidence on direct. Id. ¶¶ 6, 18. However, this Court declined to reverse noting that
17 even though the defendant had not yet raised the issue at trial, “the mention of the
18 incident in defense counsel’s opening statement may have sufficed to make the issue
19 relevant,” and “[i]n any event, there is no question that the evidence would have been
13 1 admissible later in the trial, and in these circumstances we will not reverse simply
2 because the evidence was admitted prematurely.” Id. ¶ 18.
3 Defendant also claims that absent a transcript, there is no way to determine if
4 his failure to provide details about the alleged driver of the car occurred when he was
5 subject to custodial interrogation. [MIO 24] He then sets forth alternative arguments
6 that might have relevance if he was in custody at the time he interacted with Lopez at
7 the scene of the accident or if he had invoked his right to silence at some point. [MIO
8 24, 27-28] He suggests that this case be placed on the general calendar due to the
9 possibility that he might have been in custody during the relevant time periods. [MIO
10 24, 27] We decline to do so given that there is absolutely no indication in the record
11 that Defendant’s interaction with Lopez at the scene of the accident occurred after
12 Defendant was in custody. [RP 12-13, 172-173] We see no reason to place this
13 matter on the general calendar to negate what is only an unsupported speculation of
14 Defendant’s.
15 Finally, we disagree with Defendant’s contention that the prosecution
16 committed reversible misconduct because by focusing on Defendant’s failure to
17 correct his initial statement, the prosecution was focusing on Defendant’s silence, not
18 the inconsistency in his statements, and Defendant’s reliance on State v. Pacheco,
19 2007-NMCA-140, 142 N.M. 773, 170 P.3d 1011, in support of this contention. [MIO
20 28] In Pacheco, the defendant’s silence occurred after he had invoked his Miranda
14 1 rights and his counsel had instructed him not to speak with law enforcement. Id. ¶¶
2 9-11, 14-15. This is not a case where the defendant was silent by failing to come
3 forward but instead one in which he spoke with Lopez but failed to inform him of the
4 identity of the person who allegedly took his car.
5 Given that the prosecution did not improperly comment on Defendant’s silence,
6 we need not consider whether any such comments constituted fundamental error.
7 [MIO 28-29] Therefore, we deny Defendant’s motion to amend his docketing
8 statement to allege that the prosecutor committed reversible misconduct by eliciting
9 testimony regarding, or commenting on, Defendant’s silence.
10 Defendant’s final contentions of prosecutorial misconduct concern his
11 contentions that the prosecutor acted improperly during closing by asking the jurors
12 whether they knew any victims of DWI or anyone who had been killed by a drunk
13 driver. [MIO 30] He claims that these remarks were so improper and prejudicial that
14 they warrant reversal of his convictions. [MIO 30-31]
15 Defendant fails to cite to anything in the record proper to support his contention
16 that these remarks were made by the prosecutor at trial. Assuming without deciding
17 that the prosecutor did indeed make these statements, we agree they were improper.
18 However, we disagree that they rise to the level of fundamental error.
19 As previously discussed, there was testimony from Baker that Defendant was
20 driving the Buick that hit the bus he was driving. There was testimony that Defendant
15 1 was intoxicated, that he owned the car that hit the bus, and that he had the keys to that
2 car when he spoke with Lopez at the scene. No one else was identified as a possible
3 driver and Defendant neither told Lopez that someone else was driving nor identified
4 that person. In light of the evidence introduced in support of Defendant’s convictions,
5 we are of the opinion that his guilt was not “so doubtful as to shock the conscience”
6 warranting reversal for fundamental error. See Barber, 2004-NMSC-019, ¶¶ 14, 40.
7 Therefore, we deny Defendant’s motion to amend his docketing statement to include
8 this issue. See Sommer, 118 N.M. at 60, 878 P.2d at 1009.
9 In light of our decision, we need not decide whether retrial would be barred by
10 double jeopardy. [MIO 31-33]
11 Conclusion
12 For the reasons set forth above as well as those set forth in our notice of
13 proposed summary disposition, we deny Defendant’s implicit motion to amend the
14 docketing statement and affirm his convictions.
15 IT IS SO ORDERED.
16 _______________________________ 17 MICHAEL E. VIGIL, Judge 18 WE CONCUR:
19 ____________________________
16 1 CYNTHIA A. FRY, Judge
2 ____________________________ 3 LINDA M. VANZI, Judge