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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                     No. 33,870

 5 ALBERT DELAO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Christina P. Argyres, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12   Jorge A. Alvarado, Chief Public Defender
13   Santa Fe, NM
14   Josephine H. Ford, Assistant Appellate Defender
15   Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 SUTIN, Judge.
 1   {1}   Defendant appeals from the memorandum opinion of the district court entered

 2 in an on-record appeal, which affirms the sentencing order entered by the metropolitan

 3 court. The metropolitan court found Defendant guilty of DWI (first offense) and

 4 careless driving. Unpersuaded that Defendant demonstrated error in the metropolitan

 5 court proceeding, we issued a notice of proposed summary disposition, proposing to

 6 affirm. Defendant has responded to our notice with a memorandum in opposition.

 7 After due consideration of Defendant’s response, we remain unpersuaded.

 8 Accordingly, we affirm Defendant’s convictions.

 9   {2}   At the center of the dispute in this appeal is the officer’s prior statement made

10 in a pretrial interview in a different case. [RP 113:18-19] The prior statement made

11 by the officer was that he did not like to use his dash cam because he believes defense

12 attorneys use the videos to get cases dismissed. [RP 113:19-22] The same officer in

13 the present case did not use his dash cam, and the officer testified that it was because

14 the dash cam was not working because he did not have a disk for it. [RP 113:16 to

15 114:1, 18-19] The officer further stated in the present case that if the dash cam were

16 working, then he would have used it. [RP 114:20-21]

17   {3}   From Defendant’s docketing statement, we understood his issues to argue:

18 Defendant should have been able to impeach the officer by admission of the prior

19 inconsistent statement under Rule 11-613 NMRA; the metropolitan court improperly


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 1 limited cross-examination of the officer; and insufficient evidence was presented to

 2 support his convictions. [DS 6-21, 21-22] Our notice proposed to affirm on grounds

 3 that the officer’s prior statement was not relevant to whether Defendant committed

 4 DWI in the current case; the prior statement was not inconsistent with the officer’s

 5 current testimony; Defendant did not otherwise establish that the metropolitan court

 6 improperly limited cross-examination; and sufficient evidence was presented to

 7 support Defendant’s convictions. In response to our notice, Defendant recites a nearly

 8 identical and lengthy statement of facts that appeared in his docketing statement,

 9 [MIO 1-21; DS 1-21] but lists only one issue. [MIO 21] The memorandum in

10 opposition contends that the metropolitan court erred by limiting cross-examination

11 about the officer’s use of video in DWI investigations. [MIO 21-26] Defendant does

12 not indicate that he opposes our proposed disposition on any other grounds. The

13 failure to respond to our proposed holding regarding the lack of inconsistency between

14 the officer’s prior statement and his current testimony is deemed abandoned, as is

15 Defendant’s challenge to the sufficiency of the evidence. See State v. Johnson,

16 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306 (indicating that when a case is

17 decided on the summary calendar, an issue is deemed abandoned where a party fails

18 to respond to the proposed disposition of the issue).




                                             3
 1   {4}   Defendant’s remaining challenge on appeal is his argument that the

 2 metropolitan “court erred in limiting cross-examination about Officer Carr’s use of

 3 video in DWI investigations.” [MIO 21] Defendant does not clearly and specifically

 4 state under this issue how the metropolitan court limited cross-examination, nor does

 5 he clearly and specifically state why it was error. Rather, Defendant’s response relies

 6 on broad principles regarding impeachment and relevancy, indicating that

 7 impeachment of a witness’s credibility is permitted by the Rules of Evidence [MIO

 8 21], and bias is relevant and never collateral. [MIO 22] Defendant’s argument does

 9 not directly respond to important points made in our notice.

10   {5}   Namely, the defense attempted to impeach the officer’s credibility about his

11 non-use of the video dash camera with an out-of-court statement the officer made in

12 a different case that the defense sought to introduce in the current case for the truth of

13 the matter asserted in the statement. There are obvious obstacles for such a statement

14 to come into evidence: hearsay and relevance. In order for this out-of-court statement

15 to be considered non-hearsay, it needs to fall within one of the categories of

16 statements deemed non-hearsay under Rule 11-801(D) NMRA. In order for this out-

17 of-court statement to be admitted as an exception to the rule against hearsay, Rule 11-

18 802 NMRA, it must fall within one of the exceptions under Rule 11-803 NMRA,

19 given that the officer was available as a witness in this case. Our notice observed that


                                               4
 1 the metropolitan court ruled that defense counsel could ask questions that might elicit

 2 testimony from the officer that was inconsistent with his prior statement and then use

 3 the prior statement to impeach the officer. [RP 118:17-19] We continue to believe

 4 that the metropolitan court’s limitation on the use of the prior statement is consistent

 5 with Rule 11-801(D)(1)(a), providing that a witness’s prior sworn statement is not

 6 hearsay where is it inconsistent with the witness’s current testimony. We also

 7 continue to believe that proving the prior statement’s inconsistency with the current

 8 testimony would bring the statement within the realm of appropriate, relevant

 9 impeachment, to the extent that Rule 11-613 NMRA might apply. [RP 114:2-5,

10 117:8-18] See, e.g., State v. Gomez, 2001-NMCA-080, ¶ 17, 131 N.M. 118, 33 P.3d

11 669 (indicating that a foundational requirement under Rule 11-613 for cross-

12 examination of a witness on a prior statement made by the witness in earlier

13 proceedings of the same case is the inconsistency of the witness’s statement with the

14 witness’s testimony). As we stated in our notice, the metropolitan court even offered

15 suggestions for questions that might elicit inconsistent testimony. [Id.] Our notice

16 suggested that, at trial, defense counsel did not pursue a full line of questioning that

17 elicited an inconsistent statement from the officer. [RP 119] Defendant’s response

18 does not contradict this Court’s observation in the notice. In fact, as indicated earlier,

19 Defendant’s response does not even attempt to argue that the prior out-of-court


                                               5
 1 statement was inconsistent with the officer’s testimony in this case. We fail to see

 2 how this prior statement can be introduced without overcoming the rule against

 3 hearsay.

 4   {6}   To the extent Defendant argues that cross-examination into the statement should

 5 have been permitted because bias is always relevant [MIO 22], we are not persuaded

 6 by the authority on which Defendant relies. Defendant relies on State v. Santillanes,

 7 1974-NMCA-092, ¶ 5, 86 N.M. 627, 526 P.2d 424, for this proposition. [MIO 22]

 8 In that case, however, this Court was not specifically addressing the use of a prior out-

 9 of-court statement in cross-examination, and we affirmed the trial court’s limitation

10 on cross-examination of the witness because the potential bias of the witness was not

11 properly presented. Id. ¶¶ 7-10. Defendant also relies on State v. White, 1954-

12 NMSC-050, ¶ 15, 58 N.M. 324, 270 P.2d 727, for a similar proposition. [MIO 22]

13 In White, our Supreme Court reversed the district court’s exclusion of defense

14 witnesses—who would have testified about the prosecution’s witness’s threats and

15 attempts to keep other defense witnesses from appearing and testifying at the

16 trial—holding that the excluded witnesses’ testimony was not collateral and was not

17 properly excluded when offered to prove bias or interest of the prosecution’s witness.

18 Id. ¶¶ 13-15. Hearsay was not an issue discussed in White. Also, the relevance of the




                                               6
 1 defense witnesses’ testimony in White is far more clear than is the relevance of a

 2 statement made by the officer in a pretrial interview in another case.

 3   {7}   Also, Defendant does not explain why the officer’s prior statement made in a

 4 different case—that he did not like to use his dash cam because he believes defense

 5 attorneys use the videos to get cases dismissed [RP 113:19-22]—is relevant to the

 6 jury’s decision in the present case. [RP 114, 116]

 7   {8}   As we stated in our notice, it appears that Defendant wanted to use the

 8 substance of the officer’s prior statement from another case to suggest that the officer

 9 does not properly conduct traffic stops and wants to hide it. This intended use of a

10 prior out-of-court statement to impeach a witness on a collateral matter that the

11 witness did not directly contradict in his current testimony does not serve the purposes

12 of the evidentiary rules. See, e.g., State v. Lopez, 2011-NMSC-035, ¶¶ 15-22, 150

13 N.M. 179, 258 P.3d 458 (explaining proper and improper uses of prior out-of-court

14 statements for impeachment).

15   {9}   Lastly, we note that Defendant attempts to make the officer’s failure to use a

16 dash cam relevant to the current case by relying on a letter written by the United

17 States Department of Justice to Mayor Richard Berry on April 10, 2014, indicating

18 that the failure to record investigations is an ongoing problem in the Albuquerque

19 Police Department. [MIO 23] Defendant gives us no indication that this letter was


                                              7
 1 considered by the metropolitan court, and the date of the letter precludes any

 2 possibility that it was presented to the trial court during its proceedings that concluded

 3 in June 2011. [RP 2] Thus, this letter is not a matter of record. “This Court will not

 4 consider and counsel should not refer to matters not of record in their briefs.” In re

 5 Aaron L., 2000-NMCA-024, ¶ 27, 128 N.M. 641, 996 P.2d 431.

 6   {10}   For the reasons set forth in our notice and in this Opinion, we affirm the

 7 metropolitan court’s rulings regarding the defense’s attempted use and admission of

 8 the officer’s prior statement. Accordingly, we affirm Defendant’s convictions.

 9   {11}   IT IS SO ORDERED.



10                                          __________________________________
11                                          JONATHAN B. SUTIN, Judge


12 WE CONCUR:


13 ___________________________________
14 MICHAEL D. BUSTAMANTE, Judge


15 ___________________________________
16 TIMOTHY L. GARCIA, Judge




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