State v. Torres

Opinion

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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 v. No. 31,656

5 JULIAN ORTIZ TORRES,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY 8 Mark Sanchez, District Judge

9 Gary K. King, Attorney General 10 Jacqueline R. Medina, Assistant Attorney General 11 Santa Fe, NM

12 for Appellee

13 Jacqueline L. Cooper, Chief Public Defender 14 Carlos Ruiz de la Torre, Assistant Appellate Defender 15 Santa Fe, NM

16 for Appellant

17 MEMORANDUM OPINION

18 VIGIL, Judge. 1 Defendant appeals his conviction for voluntary manslaughter. We issued a

2 second calendar notice proposing to affirm. Defendant has responded with a timely

3 memorandum in opposition. Defendant has also filed a motion to amend the

4 docketing statement. Defendant’s motion is hereby denied for the reasons set forth

5 below. We affirm.

6 Motion to Amend

7 Defendant has filed a motion to amend the docketing statement to add a new

8 issue. See Rule 12-208(F) NMRA. In cases assigned to the summary calendar, this

9 Court will grant a motion to amend the docketing statement to include additional

10 issues if the motion (1) is timely, (2) states all facts material to a consideration of the

11 new issues sought to be raised, (3) explains how the issues were properly preserved

12 or why they may be raised for the first time on appeal, (4) demonstrates just cause by

13 explaining why the issues were not originally raised in the docketing statement, and

14 (5) complies in other respects with the appellate rules. See State v. Rael, 100 N.M.

15 193, 197, 668 P.2d 309, 313 (Ct. App. 1983). This Court will deny motions to amend

16 that raise issues that are not viable, even if they allege fundamental or jurisdictional

17 error. See State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989),

18 superceded in statute as stated in State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct.

19 App. 1991).

2 1 Here, Defendant challenges trial counsel was ineffective. [MIO 9] However,

2 the substance of Defendant’s allegations are not matters of record, and we are unable

3 to review them on direct appeal. See State v. Martin, 101 N.M. 595, 603, 686 P.2d

4 937, 945 (1984) (stating that matters not of record are not reviewable on appeal).

5 Accordingly, to the extent that the claims might have merit, we believe that they are

6 better addressed in collateral proceeding. See Duncan v. Kerby, 115 N.M. 344, 346,

7 851 P.2d 466, 468 (1993) (stating that habeas corpus proceedings are the “preferred

8 avenue for adjudicating ineffective assistance of counsel claims”).

9 Miranda

10 Defendant continues to argue that the district court erred in allowing the jury

11 to hear a recording of his statements, allegedly made in violation of Miranda. [MIO

12 5] Our second calendar notice proposed to affirm because Defendant had been

13 properly Mirandized and had signed an advise and waiver of rights form. In his

14 memorandum in opposition, Defendant does not dispute that he had been Mirandized

15 and had signed an advise and waiver of rights form. Instead, Defendant claims that

16 he should have been Mirandized a second time, after he had been transported to the

17 station. [MIO 8] However, a defendant does not have to be Mirandized repeatedly

18 during the course of his arrest and interrogation. See State v. Gilbert, 98 N.M. 530,

19 534, 650 P.2d 814, 819 (1982) (holding that a second Miranda warning did not need

20 to be given where the defendant had been Mirandized earlier in the day).

21 For the reasons set forth above, we affirm the district court.

3 1 IT IS SO ORDERED.

2 _______________________________ 3 MICHAEL E. VIGIL, Judge

4 WE CONCUR:

5 _________________________________ 6 CYNTHIA A. FRY, Judge

7 _________________________________ 8 RODERICK T. KENNEDY, Judge