This memorandum opinion was not selected for publication in the New Mexico Appellate 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 vs. No. 33,422
5 ARTURO OLAGUE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY 8 Fernando R. Macias, District Judge
9 Gary K. King, Attorney General 10 Santa Fe, NM
11 for Appellee
12 Law Offices of the Public Defender 13 Jorge A. Alvarado, Chief Public Defender 14 J.K. Theodosia Johnson, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant 1 MEMORANDUM OPINION
2 HANISEE, Judge.
3 {1} Defendant appeals his convictions for Aggravated Driving While Intoxicated
4 (DWI) (.16 or above) and Failure to Maintain Lane. We issued a calendar notice
5 proposing to affirm. Defendant has responded with a memorandum in opposition, and
6 a motion to amend the docketing statement to add the issue of whether the trial court
7 erred in admitting certain testimony, and whether he received ineffective assistance
8 of counsel. We hereby deny the motion to amend and affirm the district court
9 judgment.
10 Motion to Amend
11 {2} Defendant seeks to amend the docketing statement to add two new issues. See
12 Rule 12-208(F) NMRA. In cases assigned to the summary calendar, this Court will
13 grant a motion to amend the docketing statement to include additional issues if the
14 motion (1) is timely, (2) states all facts material to a consideration of the new issues
15 sought to be raised, (3) explains how the issues were properly preserved or why they
16 may be raised for the first time on appeal, (4) demonstrates just cause by explaining
17 why the issues were not originally raised in the docketing statement, and (5) complies
18 in other respects with the appellate rules. See State v. Rael, 1983-NMCA-081, ¶ 15,
19 100 N.M. 193, 668 P.2d 309. This Court will deny motions to amend that raise issues
20 that are not viable, even if they allege fundamental or jurisdictional error. See State
2 1 v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, superceded by rule as
2 stated in State v. Salgado, 1991-NMCA-044, 112 N.M. 537.
3 {3} Here, Defendant concedes that he did not preserve a challenge to the admission
4 of some of an officer’s testimony as expert testimony. See State v. Lucero, 1986-
5 NMCA-085, ¶ 9, 104 N.M. 587, 725 P.2d 266 (“It is well-settled that objections must
6 be raised below to preserve an issue for appellate review.”). “We require that a party
7 assert the basis for its objection with sufficient specificity to alert the mind of the
8 [district] court to the claimed error[.]” State v. Silva, 2008-NMSC-051, ¶ 9, 144 N.M.
9 815, 192 P.3d 1192 (internal quotation marks and citation omitted); see Rule 12-216
10 NMRA. Notwithstanding the failure to preserve the issue, Defendant maintains that
11 the admission of this testimony constituted fundamental error. [MIO 4] “Fundamental
12 error only applies in exceptional circumstances when guilt is so doubtful that it would
13 shock the judicial conscience to allow the conviction to stand.” State v. Baca, 1997-
14 NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, overruled on other grounds by State
15 v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. Here, the other evidence
16 indicates that guilt was not so doubtful that it would shock the conscience.
17 Specifically, Defendant and another individual were the only individuals found at the
18 accident site. [MIO 2-3] The other individual testified that he was the passenger. [MIO
19 2-3] The district court, sitting as factfinder in this bench trial [RP 157], could also
20 construe the officer’s testimony as lay testimony, or at least within the competency of
3 1 this witness, because seeing two sets of footprints does not require any particular
2 expertise. [MIO 4] Finally, Defendant’s BAC was above .16. [MIO 3]
3 {4} Defendant also argues that counsel was ineffective for failing to object to the
4 admission of this “expert” testimony. [MIO 6] We will not decide an ineffective
5 assistance of counsel claim on direct appeal unless a defendant makes a prima facie
6 showing that counsel was incompetent and the incompetence resulted in prejudice to
7 the defense. See State v. Richardson, 1992-NMCA-112, ¶ 4, 114 N.M. 725, 845 P.2d
8 819, abrogated on other grounds by Allen v. LeMaster, 2012-NMSC-001, 267 P.3d
9 806. As applied here, we believe that the failure to object falls within the ambit of trial
10 tactics, because defense counsel may not have wanted to focus the court’s attention
11 on the matter, or to allow the officer the opportunity to elaborate on his training and
12 the techniques supporting the strength of his testimony. See State v. Baca,
13 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (stating that “a prima facie case
14 is not made when a plausible, rational strategy or tactic can explain the conduct of
15 defense counsel”). As Defendant observes [MIO 7], Defendant may raise this issue
16 in a habeas proceeding. See Duncan v. Kerby, 1993-NMSC-011, ¶ 4, 115 N.M. 344,
17 851 P.2d 466.
18 Issue 1
19 {5} Defendant continues to argue that that the district court erred in denying his
20 motion for a jury trail. [MIO 8] A defendant may demand a trial by jury in those cases
21 where the crime is classified as serious and has a potential penalty in excess of six
4 1 months’ imprisonment. See State v. Sanchez, 1990-NMSC-012, ¶ 7, 109 N.M. 428,
2 786 P.2d 42; see also N.M. Const. art. II, § 12. New Mexico law does not provide for
3 a jury trial for crimes having a potential penalty of six months or less imprisonment.
4 See Hamilton v. Walker, 1959-NMSC-047, ¶ 5, 65 N.M. 470, 340 P.2d 407.
5 {6} Here, Defendant was charged with Aggravated DWI (.16 or greater), pursuant
6 to NMSA 1978, Section 66-8-102(D)(1) (2010). [RP 10] This charge carried a
7 potential penalty of up to ninety days. Section 66-8-102(E). The other charge against
8 Defendant, Failure to Maintain Lane, was a penalty assessment misdemeanor. [RP 11]
9 As such, we conclude that the district court appropriately denied Defendant a jury
10 trial, notwithstanding his assertion that his case was complicated.
11 Issue 2
12 {7} Defendant continues to claim that the district court erred in refusing to strike
13 the testimony of the nurse who collected the blood sample, on the ground that the
14 nurse had no specific recollection of this particular blood draw. [MIO 10] See Rule
15 11-602 NMRA (generally requiring that a witness have personal knowledge of matter
16 on which they testify). The nurse’s testimony related to laying a foundation for the
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This memorandum opinion was not selected for publication in the New Mexico Appellate 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.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 vs. No. 33,422
5 ARTURO OLAGUE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY 8 Fernando R. Macias, District Judge
9 Gary K. King, Attorney General 10 Santa Fe, NM
11 for Appellee
12 Law Offices of the Public Defender 13 Jorge A. Alvarado, Chief Public Defender 14 J.K. Theodosia Johnson, Assistant Appellate Defender 15 Santa Fe, NM
16 for Appellant 1 MEMORANDUM OPINION
2 HANISEE, Judge.
3 {1} Defendant appeals his convictions for Aggravated Driving While Intoxicated
4 (DWI) (.16 or above) and Failure to Maintain Lane. We issued a calendar notice
5 proposing to affirm. Defendant has responded with a memorandum in opposition, and
6 a motion to amend the docketing statement to add the issue of whether the trial court
7 erred in admitting certain testimony, and whether he received ineffective assistance
8 of counsel. We hereby deny the motion to amend and affirm the district court
9 judgment.
10 Motion to Amend
11 {2} Defendant seeks to amend the docketing statement to add two new issues. See
12 Rule 12-208(F) NMRA. In cases assigned to the summary calendar, this Court will
13 grant a motion to amend the docketing statement to include additional issues if the
14 motion (1) is timely, (2) states all facts material to a consideration of the new issues
15 sought to be raised, (3) explains how the issues were properly preserved or why they
16 may be raised for the first time on appeal, (4) demonstrates just cause by explaining
17 why the issues were not originally raised in the docketing statement, and (5) complies
18 in other respects with the appellate rules. See State v. Rael, 1983-NMCA-081, ¶ 15,
19 100 N.M. 193, 668 P.2d 309. This Court will deny motions to amend that raise issues
20 that are not viable, even if they allege fundamental or jurisdictional error. See State
2 1 v. Moore, 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, superceded by rule as
2 stated in State v. Salgado, 1991-NMCA-044, 112 N.M. 537.
3 {3} Here, Defendant concedes that he did not preserve a challenge to the admission
4 of some of an officer’s testimony as expert testimony. See State v. Lucero, 1986-
5 NMCA-085, ¶ 9, 104 N.M. 587, 725 P.2d 266 (“It is well-settled that objections must
6 be raised below to preserve an issue for appellate review.”). “We require that a party
7 assert the basis for its objection with sufficient specificity to alert the mind of the
8 [district] court to the claimed error[.]” State v. Silva, 2008-NMSC-051, ¶ 9, 144 N.M.
9 815, 192 P.3d 1192 (internal quotation marks and citation omitted); see Rule 12-216
10 NMRA. Notwithstanding the failure to preserve the issue, Defendant maintains that
11 the admission of this testimony constituted fundamental error. [MIO 4] “Fundamental
12 error only applies in exceptional circumstances when guilt is so doubtful that it would
13 shock the judicial conscience to allow the conviction to stand.” State v. Baca, 1997-
14 NMSC-045, ¶ 41, 124 N.M. 55, 946 P.2d 1066, overruled on other grounds by State
15 v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. Here, the other evidence
16 indicates that guilt was not so doubtful that it would shock the conscience.
17 Specifically, Defendant and another individual were the only individuals found at the
18 accident site. [MIO 2-3] The other individual testified that he was the passenger. [MIO
19 2-3] The district court, sitting as factfinder in this bench trial [RP 157], could also
20 construe the officer’s testimony as lay testimony, or at least within the competency of
3 1 this witness, because seeing two sets of footprints does not require any particular
2 expertise. [MIO 4] Finally, Defendant’s BAC was above .16. [MIO 3]
3 {4} Defendant also argues that counsel was ineffective for failing to object to the
4 admission of this “expert” testimony. [MIO 6] We will not decide an ineffective
5 assistance of counsel claim on direct appeal unless a defendant makes a prima facie
6 showing that counsel was incompetent and the incompetence resulted in prejudice to
7 the defense. See State v. Richardson, 1992-NMCA-112, ¶ 4, 114 N.M. 725, 845 P.2d
8 819, abrogated on other grounds by Allen v. LeMaster, 2012-NMSC-001, 267 P.3d
9 806. As applied here, we believe that the failure to object falls within the ambit of trial
10 tactics, because defense counsel may not have wanted to focus the court’s attention
11 on the matter, or to allow the officer the opportunity to elaborate on his training and
12 the techniques supporting the strength of his testimony. See State v. Baca,
13 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 776 (stating that “a prima facie case
14 is not made when a plausible, rational strategy or tactic can explain the conduct of
15 defense counsel”). As Defendant observes [MIO 7], Defendant may raise this issue
16 in a habeas proceeding. See Duncan v. Kerby, 1993-NMSC-011, ¶ 4, 115 N.M. 344,
17 851 P.2d 466.
18 Issue 1
19 {5} Defendant continues to argue that that the district court erred in denying his
20 motion for a jury trail. [MIO 8] A defendant may demand a trial by jury in those cases
21 where the crime is classified as serious and has a potential penalty in excess of six
4 1 months’ imprisonment. See State v. Sanchez, 1990-NMSC-012, ¶ 7, 109 N.M. 428,
2 786 P.2d 42; see also N.M. Const. art. II, § 12. New Mexico law does not provide for
3 a jury trial for crimes having a potential penalty of six months or less imprisonment.
4 See Hamilton v. Walker, 1959-NMSC-047, ¶ 5, 65 N.M. 470, 340 P.2d 407.
5 {6} Here, Defendant was charged with Aggravated DWI (.16 or greater), pursuant
6 to NMSA 1978, Section 66-8-102(D)(1) (2010). [RP 10] This charge carried a
7 potential penalty of up to ninety days. Section 66-8-102(E). The other charge against
8 Defendant, Failure to Maintain Lane, was a penalty assessment misdemeanor. [RP 11]
9 As such, we conclude that the district court appropriately denied Defendant a jury
10 trial, notwithstanding his assertion that his case was complicated.
11 Issue 2
12 {7} Defendant continues to claim that the district court erred in refusing to strike
13 the testimony of the nurse who collected the blood sample, on the ground that the
14 nurse had no specific recollection of this particular blood draw. [MIO 10] See Rule
15 11-602 NMRA (generally requiring that a witness have personal knowledge of matter
16 on which they testify). The nurse’s testimony related to laying a foundation for the
17 introduction of the blood test results, which would be admissible as either business
18 records or public records. [MIO 3] See State v. Christian, 1995-NMCA-027, ¶¶ 12,
19 18, 119 N.M. 776, abrogated on other grounds by State v. Aragon, 2010-NMSC-008,
20 147 N.M. 474, 225 P.3d 1280. The fact that she may not have specifically
21 remembered this blood draw went to the weight of her testimony, and not its
5 1 admissibility. Cf. State ex rel. Elec. Supply Co. v. Kitchens Constr., Inc., 1988-NMSC-
2 013, ¶ 11, 106 N.M. 753, 750 P.2d 114 (relying on the principle that, with respect to
3 business records, “absence of personal knowledge shall not affect admissibility”). For
4 purposes of foundation, she testified that she would not have signed the form without
5 conducting the blood draw properly. [MIO 4] We therefore conclude that the district
6 court properly admitted this testimony.
7 Issue 3
8 {8} Defendant claims that the district court should have excluded a videotape of the
9 interview of Defendant by an officer, because the copy received by Defendant during
10 discovery did not include the audio portion of the video. [MIO 4, 11] “A court has the
11 discretion to impose sanctions for the violation of a discovery order that results in
12 prejudice to the opposing party.” State v. Harper, 2011-NMSC-044, ¶ 16, 150 N.M.
13 745, 266 P.3d 25. But “the mere showing of violation of a discovery order, without
14 a showing of prejudice, is not grounds for sanctioning a party.” Id. Once prejudice
15 is shown, any sanction should “affect the evidence at trial and the merits of the case
16 as little as possible.” Id. (internal quotation marks and citation omitted). “Our case
17 law generally provides that the refusal to comply with a district court’s discovery
18 order only rises to the level of exclusion or dismissal where the State’s conduct is
19 especially culpable, such as where evidence is unilaterally withheld by the State in bad
20 faith, or all access to the evidence is precluded by State intransigence.” Id. ¶ 17.
6 1 {9} Here, there was no showing below that the State acted in bad faith, or was
2 otherwise “especially culpable,” as contemplated by Harper. Defendant has not
3 indicated how he was prejudiced by the late disclosure, or that he requested a brief
4 continuance to review the audio. As such, we do not believe that Defendant has shown
5 that the district court abused its discretion. See State v. Downey, 2008-NMSC-061, ¶
6 24, 145 N.M. 232, 195 P.3d 1244 (“‘An abuse of discretion arises when the
7 evidentiary ruling is clearly contrary to logic and the facts and circumstances of the
8 case.’” (quoting State v. Armendariz, 2006-NMSC-036, ¶ 6, 140 N.M. 182, 141 P.3d
9 526)).
10 {10} For the reasons set forth above, we affirm.
11 {11} IT IS SO ORDERED.
12 13 J. MILES HANISEE, Judge
14 WE CONCUR:
15 16 MICHAEL D. BUSTAMANTE, Judge
17 18 M. MONICA ZAMORA, Judge