 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
 3   also note that this electronic memorandum opinion may contain computer-generated errors or other
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 5   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. 30,057

10 ARIN JENNIFER DILALLO,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
13 Michael E. Vigil, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Will O’Connell, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 FRY, Chief Judge.

23          Defendant appeals her conviction for second degree murder. We issued a

24 calendar notice proposing to affirm. Defendant has responded with a motion to amend
1 the docketing statement and a memorandum in opposition.        We hereby deny

2 Defendant’s motion to amend the docketing statement and affirm her conviction.




                                         2
 1 Motion to Amend

 2        Defendant has moved to amend the docketing statement to add two new issues:

 3 whether the trial court should have addressed her competency to stand trial, and

 4 whether the jury should have been instructed on voluntary manslaughter as a lesser

 5 included offense of second degree murder. We do not believe that she has shown

 6 good cause to amend the docketing statement. See Rule 12-208(F) NMRA (requiring

 7 good cause to amend docketing statement); see generally State v. Moore, 109 N.M.

 8 119, 128-29, 782 P.2d 91, 100-101 (Ct. App. 1989), overruled on other grounds by

 9 State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).

10        With respect to the competency issue [MIO 13], Rule 5-602(B)(1) NMRA

11 states that the issue may be raised at any stage of the proceedings. Here, the issue was

12 raised pre-trial and the court ordered an evaluation. [MIO 13; RP 22] Defendant then

13 filed a notice of withdrawal of the competency issue, indicating that Defendant was

14 not incompetent. [RP 27] Defendant did not thereafter request a competency hearing.

15 Defendant indicates that her trial counsel’s decision to abandon the competency issue

16 was erroneous, because Dr. Westfried testified at trial that Defendant had neurological

17 problems that were greater than mere anxiety. [MIO 15-16] Dr. Westfried was

18 Defendant’s own witness. [RP 81] If Defendant believed that there was reasonable

19 doubt as to her competency she could have either directly asked for an independent



                                              3
 1 evaluation or she could have asked Dr. Westfried to provide specific opinion evidence

 2 that would have triggered the court’s own duty to order a competency evaluation.

 3 Because she did not do either, we do not believe that this issue has merit on direct

 4 appeal. To the extent that she believed that defense counsel acted erroneously, this

 5 is a claim better suited for habeas. See Duncan v. Kerby, 115 N.M. 344, 346, 851 P.2d

 6 466, 468 (1993).

 7        Defendant claims that she was entitled to a jury instruction on involuntary

 8 manslaughter. [MIO 19] “In order to obtain an instruction on a lesser included

 9 offense, there must be some view of the evidence pursuant to which the lesser offense

10 is the highest degree of crime committed, and that view must be reasonable.” State v.

11 Brown, 1998-NMSC-037, ¶ 12, 126 N.M. 338, 969 P.2d 313 (alteration omitted)

12 (internal quotation marks and citation omitted).

13        “Voluntary manslaughter consists of manslaughter committed upon a sudden

14 quarrel or in the heat of passion.” NMSA 1978, § 30-2-3 (1994). Defendant

15 acknowledges that the issue was not preserved. [MIO 19] We note, however, that the

16 facts of this case did not justify the instruction. [MIO 2-4] There was no evidence of

17 a sudden quarrel or an event that caused Defendant to act in the heat of passion. [MIO

18 2-3] The fact that Defendant received a provocation instruction for second degree

19 murder does not mean that the evidence showed that a voluntary manslaughter



                                             4
 1 instruction was required. To the contrary, Defendant’s defense was that someone else

 2 committed the crime. [MIO 4] In the absence of specific evidence that would have

 3 supported a theory of voluntary manslaughter, we do not believe that she was entitled

 4 to the instruction. It follows that any ineffective assistance of counsel claims do not

 5 have merit on direct appeal.

 6 Ineffective Assistance of Counsel

 7        Defendant continues to maintain that her counsel denied her of her right to

 8 testify on her behalf. [MIO 4] We will not decide an ineffective assistance of counsel

 9 claim on direct appeal unless a defendant makes a prima facie showing that counsel

10 was incompetent and the incompetence resulted in prejudice to the defense. See State

11 v. Richardson, 114 N.M. 725, 727, 845 P.2d 819, 821 (Ct. App. 1992).

12        Here, Defendant’s claim is based on communications that she allegedly had

13 with her attorney. [MIO 4] There is no indication that these communications were

14 made part of the record. See State v. Martin, 101 N.M. 595, 603, 686 P.2d 937, 945

15 (1984) (holding that an appellate court may not consider matters not of record).

16 Instead, Defendant refers us to matters outside of the record. [MIO 4] As such, we

17 believe the issue is better suited for habeas. See Duncan, 115 N.M. at 346, 851 P.2d

18 at 468.




                                              5
 1 Motion for New Trial

 2        Defendant claims that the district court erred in denying her motion for a new

 3 trial based on newly discovered evidence. [MIO 8] “[W]e will not disturb a trial

 4 court’s exercise of discretion in denying or granting a motion for a new trial unless

 5 there is a manifest abuse of discretion.” State v. Garcia, 2005-NMSC-038, ¶ 7, 138

 6 N.M. 659, 125 P.3d 638.

 7        Here, Defendant’s motion was based on a sworn statement by another

 8 individual claiming to be the person who committed the murder. [RP 194, 196]

 9 However, it was accompanied by another letter from this same individual recanting

10 this confession and maintaining that she confessed for money and because she feared

11 for her safety. [RP 205] Under these circumstances, we do not believe that it was an

12 abuse of discretion to deny the motion.

13 Sufficiency of the Evidence

14        Defendant contends that the evidence was insufficient to support her conviction.

15 [MIO 11] A sufficiency of the evidence review involves a two-step process. Initially,

16 the evidence is viewed in the light most favorable to the verdict. Then the appellate

17 court must make a legal determination of “whether the evidence viewed in this manner

18 could justify a finding by any rational trier of fact that each element of the crime

19 charged has been established beyond a reasonable doubt.” State v. Apodaca, 118


                                              6
 1 N.M. 762, 766, 887 P.2d 756, 760 (1994) (internal quotation marks and citation

 2 omitted).

 3        In order to support Defendant’s conviction for second degree murder, the

 4 evidence had to show that Defendant killed Victim, and that her acts created a strong

 5 probability of death or great bodily harm. [RP 175] The evidence indicated that

 6 Victim, Defendant’s mother, was killed when she was in her bed in a home shared

 7 with Defendant and her two children. [MIO 2-3] Defendant’s daughter testified that

 8 she heard Victim say “oh it’s you Jen,” and that about two minutes later she got up

 9 and saw Defendant standing by the end of the bed, with something on her shirt and

10 pants. [MIO 3; DS 4] Defendant’s son testified that his sister alerted him that there

11 was something wrong with Victim, at which time he went to Victim’s room and

12 observed Defendant leaving it in a state of hysteria, with something on her shirt, pants

13 and hands. [MIO 2-3; DS 3] We believe that this circumstantial evidence was

14 sufficient to support the conviction. See State v. Duran, 2006-NMSC-035, ¶ 5, 140

15 N.M. 94, 140 P.3d 515 (“The test for sufficiency of the evidence is whether

16 substantial evidence of either a direct or circumstantial nature exists to support a

17 verdict of guilt beyond a reasonable doubt with respect to every element essential to

18 a conviction.” (internal quotation marks and citation omitted)). The jury was free to




                                              7
1 reject Defendant’s version of events, namely that Defendant’s boyfriend killed Victim.

2 See State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988).

3 CONCLUSION

4        For the reasons stated above, we affirm.

5        IT IS SO ORDERED.



6
7                                        CYNTHIA A. FRY, Chief Judge

8 WE CONCUR:



 9
10 MICHAEL D. BUSTAMANTE, Judge



11
12 CELIA FOY CASTILLO, Judge




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