STATE OF NEW MEXICO v. NMALBERT DELAO

Defendant appeals from the memorandum opinion of the district court entered1

in an on-record appeal, which affirms the sentencing order entered by the metropolitan2

court. The metropolitan court found Defendant guilty of DWI (first offense) and3

careless driving. Unpersuaded that Defendant demonstrated error in the metropolitan4

court proceeding, we issued a notice of proposed summary disposition, proposing to5

affirm. Defendant has responded to our notice with a memorandum in opposition.6

After due consideration of Defendant’s response, we remain unpersuaded.7

Accordingly, we affirm Defendant’s convictions. 8

{2} At the center of the dispute in this appeal is the officer’s prior statement made9

in a pretrial interview in a different case. [RP 113:18-19] The prior statement made10

by the officer was that he did not like to use his dash cam because he believes defense11

attorneys use the videos to get cases dismissed. [RP 113:19-22] The same officer in12

the present case did not use his dash cam, and the officer testified that it was because13

the dash cam was not working because he did not have a disk for it. [RP 113:16 to14

114:1, 18-19] The officer further stated in the present case that if the dash cam were15

working, then he would have used it. [RP 114:20-21] 16

{3} From Defendant’s docketing statement, we understood his issues to argue:17

Defendant should have been able to impeach the officer by admission of the prior18

inconsistent statement under Rule 11-613 NMRA; the metropolitan court improperly19

3

limited cross-examination of the officer; and insufficient evidence was presented to1

support his convictions. [DS 6-21, 21-22] Our notice proposed to affirm on grounds2

that the officer’s prior statement was not relevant to whether Defendant committed3

DWI in the current case; the prior statement was not inconsistent with the officer’s4

current testimony; Defendant did not otherwise establish that the metropolitan court5

improperly limited cross-examination; and sufficient evidence was presented to6

support Defendant’s convictions. In response to our notice, Defendant recites a nearly7

identical and lengthy statement of facts that appeared in his docketing statement,8

[MIO 1-21; DS 1-21] but lists only one issue. [MIO 21] The memorandum in9

opposition contends that the metropolitan court erred by limiting cross-examination10

about the officer’s use of video in DWI investigations. [MIO 21-26] Defendant does11

not indicate that he opposes our proposed disposition on any other grounds. The12

failure to respond to our proposed holding regarding the lack of inconsistency between13

the officer’s prior statement and his current testimony is deemed abandoned, as is14

Defendant’s challenge to the sufficiency of the evidence. See State v. Johnson,15

1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306 (indicating that when a case is16

decided on the summary calendar, an issue is deemed abandoned where a party fails17

to respond to the proposed disposition of the issue). 18

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{4} Defendant’s remaining challenge on appeal is his argument that the1

metropolitan “court erred in limiting cross-examination about Officer Carr’s use of2

video in DWI investigations.” [MIO 21] Defendant does not clearly and specifically3

state under this issue how the metropolitan court limited cross-examination, nor does4

he clearly and specifically state why it was error. Rather, Defendant’s response relies5

on broad principles regarding impeachment and relevancy, indicating that6

impeachment of a witness’s credibility is permitted by the Rules of Evidence [MIO7

21], and bias is relevant and never collateral. [MIO 22] Defendant’s argument does8

not directly respond to important points made in our notice. 9

{5} Namely, the defense attempted to impeach the officer’s credibility about his10

non-use of the video dash camera with an out-of-court statement the officer made in11

a different case that the defense sought to introduce in the current case for the truth of12

the matter asserted in the statement. There are obvious obstacles for such a statement13

to come into evidence: hearsay and relevance. In order for this out-of-court statement14

to be considered non-hearsay, it needs to fall within one of the categories of15

statements deemed non-hearsay under Rule 11-801(D) NMRA. In order for this out-16

of-court statement to be admitted as an exception to the rule against hearsay, Rule 11-17

802 NMRA, it must fall within one of the exceptions under Rule 11-803 NMRA,18

given that the officer was available as a witness in this case. Our notice observed that19

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the metropolitan court ruled that defense counsel could ask questions that might elicit1

testimony from the officer that was inconsistent with his prior statement and then use2

the prior statement to impeach the officer. [RP 118:17-19] We continue to believe3

that the metropolitan court’s limitation on the use of the prior statement is consistent4

with Rule 11-801(D)(1)(a), providing that a witness’s prior sworn statement is not5

hearsay where is it inconsistent with the witness’s current testimony. We also6

continue to believe that proving the prior statement’s inconsistency with the current7

testimony would bring the statement within the realm of appropriate, relevant8

impeachment, to the extent that Rule 11-613 NMRA might apply. [RP 114:2-5,9

117:8-18] See, e.g., State v. Gomez, 2001-NMCA-080, ¶ 17, 131 N.M. 118, 33 P.3d10

669 (indicating that a foundational requirement under Rule 11-613 for cross-11

examination of a witness on a prior statement made by the witness in earlier12

proceedings of the same case is the inconsistency of the witness’s statement with the13

witness’s testimony). As we stated in our notice, the metropolitan court even offered14

suggestions for questions that might elicit inconsistent testimony. [Id.] Our notice15

suggested that, at trial, defense counsel did not pursue a full line of questioning that16

elicited an inconsistent statement from the officer. [RP 119] Defendant’s response17

does not contradict this Court’s observation in the notice. In fact, as indicated earlier,18

Defendant’s response does not even attempt to argue that the prior out-of-court19

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statement was inconsistent with the officer’s testimony in this case. We fail to see1

how this prior statement can be introduced without overcoming the rule against2

hearsay.3

{6} To the extent Defendant argues that cross-examination into the statement should4

have been permitted because bias is always relevant [MIO 22], we are not persuaded5

by the authority on which Defendant relies. Defendant relies on State v. Santillanes,6

1974-NMCA-092, ¶ 5, 86 N.M. 627, 526 P.2d 424, for this proposition. [MIO 22]7

In that case, however, this Court was not specifically addressing the use of a prior out-8

of-court statement in cross-examination, and we affirmed the trial court’s limitation9

on cross-examination of the witness because the potential bias of the witness was not10

properly presented. Id. ¶¶ 7-10. Defendant also relies on State v. White, 1954-11

NMSC-050, ¶ 15, 58 N.M. 324, 270 P.2d 727, for a similar proposition. [MIO 22]12

In White, our Supreme Court reversed the district court’s exclusion of defense13

witnesses—who would have testified about the prosecution’s witness’s threats and14

attempts to keep other defense witnesses from appearing and testifying at the15

trial—holding that the excluded witnesses’ testimony was not collateral and was not16

properly excluded when offered to prove bias or interest of the prosecution’s witness.17

Id. ¶¶ 13-15. Hearsay was not an issue discussed in White. Also, the relevance of the18

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defense witnesses’ testimony in White is far more clear than is the relevance of a1

statement made by the officer in a pretrial interview in another case.2

{7} Also, Defendant does not explain why the officer’s prior statement made in a3

different case—that he did not like to use his dash cam because he believes defense4

attorneys use the videos to get cases dismissed [RP 113:19-22]—is relevant to the5

jury’s decision in the present case. [RP 114, 116] 6

{8} As we stated in our notice, it appears that Defendant wanted to use the7

substance of the officer’s prior statement from another case to suggest that the officer8

does not properly conduct traffic stops and wants to hide it. This intended use of a9

prior out-of-court statement to impeach a witness on a collateral matter that the10

witness did not directly contradict in his current testimony does not serve the purposes11

of the evidentiary rules. See, e.g., State v. Lopez, 2011-NMSC-035, ¶¶ 15-22, 15012

N.M. 179, 258 P.3d 458 (explaining proper and improper uses of prior out-of-court13

statements for impeachment). 14

{9} Lastly, we note that Defendant attempts to make the officer’s failure to use a15

dash cam relevant to the current case by relying on a letter written by the United16

States Department of Justice to Mayor Richard Berry on April 10, 2014, indicating17

that the failure to record investigations is an ongoing problem in the Albuquerque18

Police Department. [MIO 23] Defendant gives us no indication that this letter was19

8

considered by the metropolitan court, and the date of the letter precludes any1

possibility that it was presented to the trial court during its proceedings that concluded2

in June 2011. [RP 2] Thus, this letter is not a matter of record. “This Court will not3

consider and counsel should not refer to matters not of record in their briefs.”

For the reasons set forth in our notice and in this Opinion, we affirm the6

metropolitan court’s rulings regarding the defense’s attempted use and admission of7

the officer’s prior statement. Accordingly, we affirm Defendant’s convictions.