State v. Avallone ( 2012 )

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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. 31,279
5 THOMAS AVALLONE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
8 Thomas A. Rutledge, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Jacqueline Cooper, Chief Public Defender
13 Will O’Connell , Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 BUSTAMANTE, Judge.
1 Defendant is appealing his conviction after a jury found him guilty of
2 aggravated battery. We issued a calendar notice proposing to affirm. Defendant has
3 filed a motion to amend the docketing statement to raise an ineffective assistance of
4 counsel claim. We hereby deny Defendant’s motion for the reasons stated below.
5 Defendant has also filed a memorandum in opposition to our calendar notice. Not
6 persuaded, we affirm the judgment and sentence.
7 Motion to Amend
8 Defendant has filed a motion to amend the docketing statement to add a new
9 issue. See Rule 12-208(F) NMRA. In cases assigned to the summary calendar, this
10 Court will grant a motion to amend the docketing statement to include additional
11 issues if the motion (1) is timely, (2) states all facts material to a consideration of the
12 new issues sought to be raised, (3) explains how the issues were properly preserved
13 or why they may be raised for the first time on appeal, (4) demonstrates just cause by
14 explaining why the issues were not originally raised in the docketing statement, and
15 (5) complies in other respects with the appellate rules. See State v. Rael, 100 N.M.
16 193, 197, 668 P.2d 309, 313 (Ct. App. 1983). This Court will deny motions to amend
17 that raise issues that are not viable, even if they allege fundamental or jurisdictional
18 error. See State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989),
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1 overruled on other grounds by State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct.
2 App. 1991).
3 Here, Defendant would like to add two issues. With respect to the claim that
4 the district court judge should have recused, because he had presided over a previous
5 incomplete divorce proceeding, and had become “incensed” with Defendant when the
6 divorce did not go through. [MIO 8-11] Defendant concedes that this issue was not
7 preserved. [MIO 9] Accordingly, we conclude that the issue is not viable because
8 there is nothing in the record to substantiate Defendant’s claims concerning the district
9 court judge’s prior conduct. See State v. Martin, 101 N.M. 595, 603, 686 P.2d 937,
10 945 (1984) (observing that matters not of record cannot be reviewed on appeal).
11 Defendant also would like to add the issue of whether his counsel was
12 ineffective. [MIO 11] Again, Defendant’s claims appear to be either not of record,
13 or matters of strategy. Accordingly, we believe that these claims are better addressed
14 in collateral proceeding. See Duncan v. Kerby, 115 N.M. 344, 346, 851 P.2d 466, 468
15 (1993) (stating that habeas corpus proceedings are the “preferred avenue for
16 adjudicating ineffective assistance of counsel claims.”)
17 Memorandum in Opposition
18 Defendant continues to claim that the district court erred in excluding evidence
19 in the form of a threatening letter to Defendant that was authored by the Victim.
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1 [MIO 5] “We review the admission of evidence under an abuse of discretion standard
2 and will not reverse in the absence of a clear abuse.” State v. Sarracino, 1998-NMSC-
3 022, ¶ 20, 125 N.M. 511, 964 P.2d 72.
4 Defendant had the fundamental right to present his theory of defense to the jury.
5 See State v. Lucero, 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143. In this case
6 Defendant argued self-defense, claiming that Victim was the aggressor. [RP 84] To
7 support this defense, Defendant sought to admit a letter addressed to him, sent by
8 Victim, which Defendant characterizes as “threatening.” [DS 1] Our Supreme Court
9 has set forth the applicable analysis as follows:
10 When a defendant is claiming self-defense, his or her apprehension of
11 the victim is an essential element of his or her claim. Therefore, under
12 Rule 11-405(B) [NMRA], evidence of specific instances of the victim's
13 prior violent conduct of which the defendant was aware may be admitted
14 to show the defendant's fear of the victim.
15 State v. Armendariz, 2006-NMSC-036, ¶ 17, 140 N.M. 182, 141 P.3d 526.
16 In our calendar notice, we observed that Defendant did not provide any detail
17 concerning the “threatening” nature of Victim’s letter. In the absence of an adequate
18 description, we were unable to review this issue. See Thornton v. Gamble, 101 N.M.
19 764, 769, 688 P.2d 1268, 1273 (Ct. App. 1984) (stating that trial counsel must set out
20 all the facts in the docketing statement); see also Rule 12-208(D)(3) NMRA (stating
21 that the docketing statement shall contain “a concise, accurate statement of the case
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1 summarizing all facts material to a consideration of the issues presented”).
2 Nevertheless, we presume that the district court did not abuse its discretion in
3 excluding the letter. See State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981
4 P.2d 1211 (stating that there is a presumption of correctness in the rulings or decisions
5 of the trial court, and the party claiming error bears the burden of showing such
6 error.).
7 In his memorandum in opposition, Defendant indicates that the letter was not
8 disclosed until the morning of trial, at which time the district court excluded it. [MIO
9 5] We therefore conclude that we properly applied the presumption of correctness,
10 in that the letter was not properly disclosed. See Rule 5-502(A)(1) NMRA (requiring
11 disclosure of papers no later than ten days before trial).
12 For the reasons set forth above, we affirm.
13 IT IS SO ORDERED.
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15 MICHAEL D. BUSTAMANTE, Judge
16 WE CONCUR:
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18 CELIA FOY CASTILLO, Chief Judge
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2 TIMOTHY L. GARCIA, Judge
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