State v. Perea, A-1-CA-39681

• Citation: A-1-CA-39681
• Case Date: June 13, 2022
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
MICHELLE L. PEREA, Defendant-Appellant.

No. A-1-CA-39681

Court of Appeals of New Mexico

June 13, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Steven Blankinship, District Judge

Hector H. Balderas, Attorney General for Appellee

Bennett J. Baur, Chief Public Defender Carrie Cochran, Assistant Appellate Defender for Appellant

MEMORANDUM OPINION

JENNIFER L. ATTREP, Judge

{¶1}Defendant appeals from her convictions, after a jury trial, of possession of methamphetamine, contrary to NMRA 1978, Section 30-31-23(E) (2019, amended 2021), and use or possession of drug paraphernalia, contrary to NMSA 1978, Section 30-31-25.1 (2019, amended 2022). [RP 102] This Court issued a notice of proposed disposition proposing to affirm. Defendant filed a memorandum in opposition and

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motion to amend the docketing statement, which we have duly considered. Unpersuaded, we deny the motion to amend and affirm.

{¶2} In her motion to amend the docketing statement, Defendant seeks to add an issue: Defendant argues that her rights under the Fifth Amendment of the United States Constitution were violated when her post-arrest statements were admitted at trial, because Defendant was never read warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). [MIO i, MIO 3] See Rule 12-210(D)(2) NMRA (stating that "[t]he parties shall not argue issues that are not contained in . . . the docketing statement[, but that t]he Court may, for good cause shown, permit the appellant to amend the docketing statement" and that "[t]he appellant may combine a motion to amend the docketing statement . . . with a memorandum in opposition"). We note that this Court considered in our proposed disposition whether the district court erred in allowing the State to introduce Defendant's admission that she had used methamphetamine two days prior to her arrest under different grounds; we considered whether this was error pursuant to Rule 11-404 NMRA and proposed that it was not. [CN 1-4] Defendant explicitly withdraws this claim of evidentiary error from our consideration and moves to amend the issue to consider whether there was constitutional error instead. [MIO i n. 1]

{¶3} In order for this Court to grant a motion to amend the docketing statement, the movant must meet certain criteria to establish good cause for our allowance of such

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amendment. See State v. Moore, 1989-NMCA-073, ¶¶ 41-42, 109 N.M. 119, 782 P.2d 91, superseded by rule on other grounds as stated in State v. Salgado, 1991-NMCA-044, ¶ 2, 112 N.M. 537, 817 P.2d 730; State v. Rael, 1983-NMCA-081, ¶¶ 15-16, 100 N.M. 193, 668 P.2d 309. The essential requirements to show good cause for our allowance of an amendment to an appellant's docketing statement are that

(1) the motion to amend must be timely, (2) the motion must show the new issue sought to be raised was either (a) properly preserved below or (b) allowed to be raised for the first time on appeal[, and (3)] the issues sought to be presented are viable

Moore, 1989-NMCA-073, ¶ 42. For the reasons discussed below, we conclude that Defendant's argument was neither properly preserved below, nor may be raised for the first time on appeal, and further, the issue raised is not viable.

{¶4} As Defendant acknowledges, the Miranda issue she asserts "was not adequately preserved." [MIO ii] Despite the lack of preservation below, Defendant asks this Court to review her Miranda argument for fundamental error. [MIO ii] We employ the fundamental error exception to the preservation rule "only under extraordinary circumstances to prevent the miscarriage of justice." State v. Silva, 2008-NMSC-051, ¶ 13, 144 N.M. 815, 192 P.3d 1192 (internal quotation marks and citation omitted).

Accordingly, we will use the doctrine to reverse a conviction only if the defendant's guilt is so questionable that upholding a conviction would shock the conscience, or where notwithstanding the apparent

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culpability of the defendant, substantial justice has not been served. Substantial justice has not been served when a fundamental unfairness within the system has undermined judicial integrity.

Id. (internal quotation marks and citation omitted).

{¶5} Defendant's motion to amend her docketing statement and memorandum in opposition now asserts the following...