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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. 35,248

 5 LORI LOCKWOOD,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Fernando R. Macias, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12   Bennett J. Baur, Chief Public Defender
13   D. David Henderson, Appellate Defender
14   MJ Edge, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VANZI, Chief Judge.
 1   {1}   Defendant appeals her conviction for trafficking methamphetamine (by

 2 possession with intent to distribute). We issued a calendar notice proposing to affirm.

 3 Defendant has responded with a memorandum in opposition and a motion to amend

 4 the docketing statement. We deny the motion to amend for the reasons set forth below.

 5 We affirm.

 6 MOTION TO AMEND

 7   {2}   Defendant has filed a motion to amend the docketing statement to add a new

 8 issue. [MIO 1] In cases assigned to the summary calendar, this Court will grant a

 9 motion to amend the docketing statement to include additional issues if the motion (1)

10 is timely, (2) states all facts material to a consideration of the new issues sought to be

11 raised, (3) explains how the issues were properly preserved or why they may be raised

12 for the first time on appeal, (4) demonstrates just cause by explaining why the issues

13 were not originally raised in the docketing statement, and (5) complies in other

14 respects with the appellate rules. See State v. Rael, 1983-NMCA-081, ¶ 15, 100 N.M.

15 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that are

16 not viable, even if they allege fundamental or jurisdictional error. See State v. Moore,

17 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, superceded by statute on other

18 grounds as stated in State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d

19 730.



                                               2
 1   {3}   Here, Defendant claims that it was plain error for the district court to admit

 2 evidence seized at the residence. [MIO 7-8] The doctrine of plain error, arising from

 3 our Rules of Evidence, applies specifically to evidentiary matters and permits a court

 4 to “take notice of a plain error affecting a substantial right, even if the claim of error

 5 was not properly preserved.” Rule 11-103(E) NMRA.

 6   {4}   Defendant’s specific claim is that there were discrepancies in the chain of

 7 custody of the crystal substance found at the residence and in the amount that was

 8 seized. [MIO 3-4, 8] Defendant’s argument on both grounds appears to rely on alleged

 9 differences in the number of baggies as described by the officers who conducted the

10 search and the forensic scientist who tested some of them. [DS 5] Any conflicts in the

11 testimony was a matter for the jury to resolve. See State v. Cunningham,

12 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. To the extent that Defendant’s

13 chain of custody claim may have had merit, the failure to raise the objection prevented

14 the State the opportunity to place additional information in the record that may have

15 clarified the matter, thus depriving this Court of a record to review. See State v.

16 Hunter, 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296 (“Matters not of record

17 present no issue for review.”). We therefore conclude that Defendant’s motion to

18 amend is not viable.

19 CONFIDENTIAL INFORMANT



                                               3
 1   {5}   Defendant continues to challenges the district court’s denial of her motion to

 2 disclose the identity of the confidential informant. [MIO 4] Specifically, she claims

 3 that the ruling was rendered late, prejudicing her ability to formulate a new defense

 4 strategy. We believe that any prejudice here is too speculative, not of record, and that

 5 defense counsel should have known that the motion would be denied. The charges in

 6 this case were not predicated on Defendant’s acts of selling drugs to the informant;

 7 instead Defendant was only charged with acts that were based on evidence found as

 8 a consequence of a police search. Under such circumstances, we have held that a

 9 district court does not abuse its discretion in denying a motion to disclose the

10 informant’s identity. See State v. Chandler, 1995-NMCA-033, ¶¶ 19-25, 119 N.M.

11 727, 895 P.2d 249 (affirming the district court’s decision not to hold an in camera

12 hearing regarding the identity of a confidential informant where the district court

13 concluded that the identity of the informant was not relevant because the defendant

14 was not charged with a crime based upon the transaction witnessed by the informant,

15 but rather on evidence found during the execution of a search warrant). To the extent

16 that Defendant is arguing that the CI would have testified that he/she, and not

17 Defendant, was the individual who was dealing drugs out of the house [MIO 5],

18 Defendant’s assertion implies that the CI was already known to Defendant; in any

19 event, it is too speculative to assume that the CI would have waived their right against

20 self-incrimination.

21 INEFFECTIVE ASSISTANCE




                                              4
 1   {6}   Defendant does not provide any new argument with respect to this issue. We

 2 therefore rely on our analysis set forth in our calendar notice. See Hennessy v. Duryea,

 3 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly

 4 held that, in summary calendar cases, the burden is on the party opposing the proposed

 5 disposition to clearly point out errors in fact or law.”).

 6 PROSECUTOR’S COMMENTS

 7   {7}   Defendant continues to claim that the prosecutor impermissibly commented on

 8 matters outside the evidence during closing argument. [MIO 9] Specifically, the

 9 prosecutor questioned why Defendant did not call as a witness one of the individuals

10 who was in the house at the time of the search. [DS 5] It was permissible for the

11 prosecutor to comment on this individual’s absence from trial. See State v. Gonzales,

12 1991-NMSC-075, ¶ 20, 112 N.M. 544, 817 P.2d 1186 (stating that “[c]omment during

13 closing argument concerning the failure to call a witness is permitted”). We also note

14 that, to the extent that the comments could be construed to shift the burden of proof,

15 the judge here admonished the prosecutor about burden shifting. [DS 5] To the extent

16 that Defendant’s memorandum challenges the holding of Gonzales, this Court is

17 bound by that precedent. See State v. Cordova, 1999-NMCA-144, ¶ 30, 128 N.M. 390,

18 993 P.2d 104 (“It is well-established that this Court is without authority to reverse or

19 revise court rules that have been previously interpreted by our Supreme Court.”).

20 CUMULATIVE ERROR

21   {8}   Defendant continues to argue that the cumulative error in this case amounted

22 to a violation of due process. [MIO 11] Because we conclude that there was no error,


                                               5
1 we hold that there was no cumulative error. See State v. Bent, 2013-NMCA-108, ¶ 37,

2 328 P.3d 677 (stating that “[w]hen there is no error, there is no cumulative error”

3 (internal quotation marks and citation omitted)).

4   {9}    For the reasons set forth above, we affirm.



5   {10}   IT IS SO ORDERED.


6                                          __________________________________
7                                          LINDA M. VANZI, Chief Judge

8 WE CONCUR:


 9 _________________________________
10 MICHAEL E. VIGIL, Judge


11 _________________________________
12 TIMOTHY L. GARCIA, Judge




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