 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
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 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




                                 17
