     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     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum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. 33,098

 5 NELSON STEAD,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Stan Whitaker, District Judge

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

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 ZAMORA, Judge.
 1   {1}   Defendant appeals following his conviction at a jury trial on four counts of

 2 criminal sexual penetration of a minor in the second degree (child under 13) and three

 3 counts of false imprisonment, contending that the district court erred in not granting

 4 a mistrial following defense objections to two questions by the prosecutor that

 5 allegedly “prejudicially touched on Defendant’s Fifth Amendment right to remain

 6 silent.” [DS 6-7] This Court issued a calendar notice proposing summary affirmance.

 7 Defendant filed a memorandum in opposition to this Court’s notice of proposed

 8 disposition and a motion to amend the docketing statement, both of which we have

 9 duly considered. Unpersuaded, we affirm.

10   {2}   In our calendar notice, we examined the content and context of the prosecutor’s

11 questions and the witness’s sole answer and we proposed to determine that the

12 comments on Defendant’s silence in this case appear to have been, at most, indirect

13 and ambiguous. [CN 6] In the present case, like in State v. Baca, 1976-NMSC-015,

14 ¶ 5, 89 N.M. 204, 549 P.2d 282, the prosecutor’s first question was in regard to

15 whether the police officer had interviewed Defendant. However, unlike in Baca where

16 the officer’s response directly addressed the defendant’s invocation of his Miranda

17 rights, the witness in the current case was unable to answer the question due to a

18 sustained objection. Likewise, the officer’s testimony in response to the prosecutor’s




                                              2
 1 question as to whether she had met with Defendant face to face did not contain any

 2 information directly regarding Defendant’s silence.

 3   {3}   In his memorandum in opposition, Defendant points us to State v. Lara, 1975-

 4 NMCA-095, ¶ 10, 88 N.M. 233, 539 P.2d 623, for the proposition that “[i]f [the]

 5 defendant’s silence lacks significant probative value, any reference to defendant’s

 6 silence has an intolerable prejudicial impact requiring reversal.” [MIO 9] However,

 7 we recognize that our Supreme Court in Baca found it “necessary to distinguish and

 8 limit [Lara] to those situations where the prosecutor is directly responsible for the

 9 improper comment on the defendant’s silence.” Baca, 1976-NMSC-015, ¶ 3. While

10 Defendant asserts that “the State twice elicited from the lead detective a comment on

11 [Defendant’s] silence” [MIO 8], this conclusory statement does not distinguish the

12 prosecutor’s questions in this case from the question asked in Baca. We note that the

13 Court in Baca did not characterize the prosecutor’s question as directly eliciting a

14 response on the defendant’s silence, but rather analyzed the content of the witness’s

15 answer. Id. ¶¶ 5-6. Therefore, we conclude that here, as in Baca, the prosecutor’s

16 questions did not directly elicit a response from Detective Chavez regarding

17 Defendant’s silence.

18   {4}   Additionally, the content of Detective Chavez’s testimony included no response

19 to the first question—due to the sustained objection—and the statement “I did not” in


                                              3
 1 response to the second question. [DS 5] In light of the foregoing, and relying on

 2 Baca’s observation that “[w]e are unwilling to go so far as to say that any comment

 3 on the defendant’s silence must result in a mistrial, or a reversal of the defendant’s

 4 conviction[,]” id. ¶ 5, we are not convinced that the district court abused its discretion

 5 in denying Defendant’s motion for a mistrial in this case.

 6   {5}   Furthermore, in regard to Defendant’s contention that the prosecutor’s

 7 questions “prejudicially touched on Defendant’s Fifth Amendment right to remain

 8 silent” [DS 6-7], we explained in our calendar notice that we are unaware of any

 9 authority that extends the Fifth Amendment’s due process clause protection against

10 prosecutorial comment to a defendant’s pre-arrest and pre-Miranda silence. [CN 5]

11 Thus, we proposed to hold that even if the prosecutor’s questions did elicit a response

12 on Defendant’s silence, the comments themselves did not implicate Defendant’s right

13 to remain silent as protected by the Fifth Amendment, and therefore, were not

14 improper. [CN 5] In response, Defendant has not provided us with any authority to

15 establish that pre-arrest and pre-Miranda silence is protected by the Fifth Amendment,

16 and in fact candidly cites us to Salinas v. Texas, ___ U.S. ___, 133 S.Ct. 2174 (2013),

17 for the proposition that “the use of pre-arrest silence as substantive evidence is not a

18 violation of a [d]efendant’s Fifth Amendment rights.” [MIO 7-9]        {6}   Instead,

19 Defendant points us to Degraff, 2006-NMSC-011, ¶ 15, 139 N.M. 211, 131 P.3d,


                                               4
 1 where the Court stated that in the absence of controlling federal law, comments on

 2 silence are still subject to the rules of evidence. [MIO 8] Without determining whether

 3 Salinas controls in this case, we observe that it is unclear from the docketing statement

 4 and the memorandum in opposition whether Defendant made a particular evidentiary

 5 objection to the prosecutor’s questions at trial, or whether the objections at trial were

 6 more generally linked to the alleged Fifth Amendment violation.

 7   {7}   In an attempt to clarify, Defendant has provided this Court with a motion to

 8 amend his docketing statement to include “a Rule 11-403 challenge to the testimony

 9 on [Defendant’s] pre-arrest silence.” [MIO 1] See Rule 12-208(F) NMRA (permitting

10 the amendment of the docketing statement based upon good cause shown); State v.

11 Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309 (setting out

12 requirements for a successful motion to amend the docketing statement). The essential

13 requirements to show good cause for our allowance of an amendment to an appellant’s

14 docketing statement are: (1) that the motion be timely, (2) that the new issue sought

15 to be raised was either (a) properly preserved below or (b) allowed to be raised for the

16 first time on appeal, and (3) the issues raised are viable. See State v. Moore, 1989-

17 NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, overruled on other grounds by State

18 v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730.




                                               5
 1   {8}   Defendant’s motion to amend purports to explain how this issue was preserved

 2 in the district court. See Rael, 1983-NMCA-081, ¶¶ 15 (requiring a motion to amend

 3 the docketing statement to include those issues sought to be added and “how they

 4 were preserved” or showing “why they did not have to be preserved”). Specifically,

 5 Defendant states that “[t]rial counsel moved in limine to prevent the State from

 6 eliciting comments on [Defendant’s] pre-arrest silence from Detective Chavez.” [MIO

 7 8] However, our examination of the motion itself [RP 89-91] and the quoted excerpt

 8 in Defendant’s memorandum in opposition [MIO 2] reveal that not to be the case.

 9 While Defendant moved to exclude “[a]ny comments made by [] Defendant when

10 Detective Chavez called Defendant over the telephone” pursuant to Rule 11-403 [MIO

11 2], there is no reference to Defendant’s silence or to the fact that Defendant did not

12 schedule a face to face interview with Detective Chavez. We see no reason to construe

13 this motion in limine to encompass Defendant’s silence when it clearly refers only to

14 statements made by Defendant. Therefore, we conclude that the Rule 11-403 issue was

15 not preserved by Defendant’s motion in limine.

16   {9}   As to the viability of the issue, Defendant points us to Lara’s statement

17 regarding the “intolerable prejudicial impact” of references to Defendant’s silence.

18 1975-NMSC-095, ¶ 10. However, as explained above, this case is distinguishable

19 from Lara in that the comments on Defendant’s silence, if any, were not directly


                                             6
 1 elicited by the prosecutor. Defendant’s argument is blunted further by our Supreme

 2 Court’s recognition that ambiguous and indirect comments, like those in this case,

 3 “are less likely to call a jury’s attention to the defendant’s exercise of his rights.”

 4 DeGraff, 2006-NMSC-011, ¶ 8 (internal citation omitted). Consequently, given the

 5 content and context of the prosecutor’s questions and the resultant answers, we are not

 6 persuaded that Rule 11-403 would have demanded a different result. This is especially

 7 the case where, as we noted in our calendar notice, the comments did not rise to the

 8 level where the district court’s offered curative instruction would not have sufficiently

 9 alleviated any prejudice to Defendant. [CN 6] See State v. Armijo, 2014-NMCA-013,

10 ¶ 9, 316 P.3d 902 (“[G]enerally, a prompt admonition from the court to the [j]ury to

11 disregard and not consider inadmissible evidence sufficiently cures any prejudicial

12 effect which might otherwise result.”) (alterations in original) (internal quotation

13 marks and citation omitted). Defendant’s citation to Armijo for the proposition that the

14 general rule does not apply where “inadmissible testimony [is] intentionally elicited

15 by the prosecution,” id. (alteration in original) (internal quotation marks and citation

16 omitted) is not convincing given our determination that the prosecution in this case

17 did not elicit the comment on Defendant’s silence. Because we do not find that the

18 issue is viable, we deny Defendant’s motion to amend the docketing statement.




                                               7
1   {10}   Finding no error on the part of the district court, we need not address the issue

2 of harmless error. Accordingly, for the reasons stated above, as well as those provided

3 in our calendar notice, we affirm.

4   {11}   IT IS SO ORDERED.




5                                                  _______________________________
6                                                  M. MONICA ZAMORA, Judge

7 WE CONCUR:


8 __________________________________
9 CYNTHIA A. FRY, Judge


10 __________________________________
11 J. MILES HANISEE, Judge




                                               8
