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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. 31,656
5 JULIAN ORTIZ TORRES,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
8 Mark Sanchez, District Judge
9 Gary K. King, Attorney General
10 Jacqueline R. Medina, Assistant Attorney General
11 Santa Fe, NM
12 for Appellee
13 Jacqueline L. Cooper, Chief Public Defender
14 Carlos Ruiz de la Torre, Assistant Appellate Defender
15 Santa Fe, NM
16 for Appellant
17 MEMORANDUM OPINION
18 VIGIL, Judge.
1 Defendant appeals his conviction for voluntary manslaughter. We issued a
2 second calendar notice proposing to affirm. Defendant has responded with a timely
3 memorandum in opposition. Defendant has also filed a motion to amend the
4 docketing statement. Defendant’s motion is hereby denied for the reasons set forth
5 below. We affirm.
6 Motion to Amend
7 Defendant has filed a motion to amend the docketing statement to add a new
8 issue. See Rule 12-208(F) NMRA. In cases assigned to the summary calendar, this
9 Court will grant a motion to amend the docketing statement to include additional
10 issues if the motion (1) is timely, (2) states all facts material to a consideration of the
11 new issues sought to be raised, (3) explains how the issues were properly preserved
12 or why they may be raised for the first time on appeal, (4) demonstrates just cause by
13 explaining why the issues were not originally raised in the docketing statement, and
14 (5) complies in other respects with the appellate rules. See State v. Rael, 100 N.M.
15 193, 197, 668 P.2d 309, 313 (Ct. App. 1983). This Court will deny motions to amend
16 that raise issues that are not viable, even if they allege fundamental or jurisdictional
17 error. See State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989),
18 superceded in statute as stated in State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct.
19 App. 1991).
2
1 Here, Defendant challenges trial counsel was ineffective. [MIO 9] However,
2 the substance of Defendant’s allegations are not matters of record, and we are unable
3 to review them on direct appeal. See State v. Martin, 101 N.M. 595, 603, 686 P.2d
4 937, 945 (1984) (stating that matters not of record are not reviewable on appeal).
5 Accordingly, to the extent that the claims might have merit, we believe that they are
6 better addressed in collateral proceeding. See Duncan v. Kerby, 115 N.M. 344, 346,
7 851 P.2d 466, 468 (1993) (stating that habeas corpus proceedings are the “preferred
8 avenue for adjudicating ineffective assistance of counsel claims”).
9 Miranda
10 Defendant continues to argue that the district court erred in allowing the jury
11 to hear a recording of his statements, allegedly made in violation of Miranda. [MIO
12 5] Our second calendar notice proposed to affirm because Defendant had been
13 properly Mirandized and had signed an advise and waiver of rights form. In his
14 memorandum in opposition, Defendant does not dispute that he had been Mirandized
15 and had signed an advise and waiver of rights form. Instead, Defendant claims that
16 he should have been Mirandized a second time, after he had been transported to the
17 station. [MIO 8] However, a defendant does not have to be Mirandized repeatedly
18 during the course of his arrest and interrogation. See State v. Gilbert, 98 N.M. 530,
19 534, 650 P.2d 814, 819 (1982) (holding that a second Miranda warning did not need
20 to be given where the defendant had been Mirandized earlier in the day).
21 For the reasons set forth above, we affirm the district court.
3
1 IT IS SO ORDERED.
2 _______________________________
3 MICHAEL E. VIGIL, Judge
4 WE CONCUR:
5 _________________________________
6 CYNTHIA A. FRY, Judge
7 _________________________________
8 RODERICK T. KENNEDY, Judge
4