May 7, 2019- State of New Mexico v. Dejacka Ersel Stapleton, No. A-1-CA-37677

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	NO. A-1-CA-37677
5 DEJACKA ERSEL STAPLETON,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 Drew D. Tatum, District Judge
9 Hector H. Balderas, Attorney General
· 10 Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur, Chief Public Defender
13 	John Bennett, Assistant Appellate Defender
14 Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 VANZI, Judge.
18 	{t} 	Defendant appeals his convictions for possession of methamphetamine and
19 tampering with evidence. We issued a calendar notice proposing to affirm. Defendant
20 has responded with a memorandum in opposition/motion to amend the docketing
21 	statement. We hereby deny the motion to amend and affirm Defendant's convictions.
Court of Appeals of New Mexico
Filed 5/7/2019 10:39 AM
Mark Reynolds

1 Sufficiency of the Evidence
2 	{2} 	Defendant has abandoned this issue. See State v. Salenas, 1991-NMCA-056,
3 12, 112 N.M. 268,814 P.2d 136 (stating that where a party has not responded to the
4 Court's proposed disposition of an issue, that issue is deemed abandoned).
5 Motion to Amend
6 	{3} 	Defendant has filed a motion to amend the docketing statement to add a new
7 issue. In cases assigned to the summary calendar, this Court will grant a motion to
8 amend the docketing statement to include additional issues if the motion ( 1) is timely,
9 (2) states all facts material to a consideration of the new issues sought to be raised,
10 (3) explains how the issues were properly preserved or why they may be raised for the
11 	first time on appeal, (4) demonstrates just cause by explaining why the issues were
12 not originally raised in the docketing statement, and (5) complies in other respects
13 	with the appellate rules. SeeStatev. Rael, 1983-NMCA-081, 115, lOON.M. 193,668
14 P .2d 3 09. This Court will deny motions to amend that raise issues that are not viable,
15 	even if they allege fundamental or jurisdictional error. See State v. Moore, 1989-
16 NMCA-073, 1 42, 109 N.M. 119, 782 P.2d 91, superseded by statute on other
17 grounds as statedinStatev. Salgado, 1991-NMCA-044, 12,112 N.M. 537, 817P.2d
18 	730.
2

1 {4} 	Here, Defendant moves to amend the docketing statement to raise the issue of
2 whether he had to personally waive UJI 14-5031 NMRA, which instructs the jury not
3 to infer guilt from a defendant's refusal to testify. Defense counsel had been asked
4 if she wanted the instruction, and she declined. [MIO 4] The Use Note to UJI 14-5031
'
5 states that the instruction "must not be given if the defendant objects." The
6 Committee Commentary states that this is intended to give defendants control over
7 whether the instruction should be given. To the _extent that Defendant is arguing that
8 counsel acted over his objection, we believe that this is better addressed as an
9 ineffective assistance claim; iμ any event, Defendant has not established that his
10 personal objections were made part of the record. See State v. Hunter, 2001-NMCA-
11. 078, 1 18, 131 N.M. 76, 33 P.3d 296 ("Matters not of record present no issue for
12 review."). Defendant has also not referred us to specific authority supporting his
13 	contention that the court had an independent duty to inquire about Defendant's
14 personal views on the matter. See State v. Vigil-Giron, 2014-NMCA-069, 160,327
15 	P.3d 1129 ("[A]ppellate courts will not consider an issue if no authority is cited in
16 support of the issue and that, given no cited authority, we assume no such authority
17 exists."). We therefore conclude that the issue lacks merit.
18 {5} 	For the reasons set forth above, we affirm.
3

1 {6}
2
3
IT IS SO ORDERED.
4 WE CONCUR:
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6 J. MILES HANISEE, Judge
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~~cub~.LIA.iN-zI, Judge
4