State v. Montoya ( 2019 )

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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. A-1-CA-37298
5 JOSEPH MONTOYA,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
8 Daniel A. Bryant, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 L. Helen Bennett, P.C.
13 Linda Helen Bennett
14 Albuquerque, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
18 {1} Defendant appeals from a district court judgment and sentence entered after a
19 jury found him guilty of one count of felony shoplifting and one count of
1 misdemeanor shoplifting. We issued a calendar notice proposing to affirm. Defendant
2 has responded with a memorandum in opposition. We affirm.
3 {2} Issue 1: Defendant continues to claim that the State failed to disclose unedited
4 security surveillance video footage from all camera positions on the two days that the
5 shoplifting incidents took place. [MIO 2] “In order to establish a Brady violation, the
6 petitioner must show that: (1) the prosecution suppressed evidence; (2) the evidence
7 was favorable to the accused; and (3) the evidence was material to the defense.” Case
8 v. Hatch, 2008-NMSC-024, ¶ 44, 144 N.M. 20, 183 P.3d 905 (internal quotation
9 marks and citation omitted).
10 {3} Our calendar notice pointed out that Defendant’s docketing statement failed to
11 provide any facts that establish that he satisfied his burden to show a Brady violation,
12 and we would not presume error. See State v. Aragon, 1999-NMCA-060, ¶ 10, 127
13 N.M. 393, 981 P.2d 1211 (stating that there is a presumption of correctness in the
14 rulings or decisions of the district court, and the party claiming error bears the burden
15 of showing such error). Defendant’s memorandum does not refer us to specific
16 objections that were raised below, the State’s response to these objections, or the
17 district court’s basis for any ruling. As such, we conclude that Defendant did not
18 establish that a Brady violation actually occurred.
19 {4} Issue 7: Defendant continues to claim that he should have been allowed to
20 represent himself. [MIO 5] Our calendar notice observed that Defendant failed to
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1 show that he preserved the issue. See State v. Leon, 2013-NMCA-011, ¶ 33, 292 P.3d
2 493 (“We generally do not consider issues on appeal that are not preserved below.”
3 (internal quotation marks and citation omitted)). We also stated that Defendant failed
4 to provide sufficient facts to review the issue. See State v. Chamberlain, 1989-NMCA-
5 082, ¶ 11, 109 N.M. 173, 783 P.2d 483 (stating that where an appellant fails “to
6 provide us with a summary of all the facts material to consideration of [his or her]
7 issue, as required by [Rule 12-208(D)(3) NMRA], we cannot grant relief on [that]
8 ground”).
9 {5} In his memorandum in opposition, Defendant maintains that he repeatedly told
10 the judge that he was unhappy with counsel and wanted to represent himself. [MIO
11 6] Again, however, Defendant has not provided sufficient facts to establish error. He
12 has not informed this Court of when he raised the issue with the district court, or what
13 the court’s response was. We therefore presume correctness of the district court’s
14 ruling, because Defendant has not established that he raised the issue in a timely
15 manner. See State v. Garcia, 2011-NMSC-003, ¶ 26, 149 N.M. 185, 246 P.3d 105716 (noting that a defendant must raise the issue in a timely manner and citing case law
17 that holds that raising the issue mid-trial is untimely).
18 {6} Issues 2, 3, 4, 5, 6, 8, 9: Defendant has not provided any new argument on these
19 issues. See State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 100320 (stating that a party responding to a summary calendar notice must come forward and
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1 specifically point out errors of law and fact, and the repetition of earlier arguments
2 does not fulfill this requirement).
3 {7} For the reasons set forth above, we affirm.
4 {8} IT IS SO ORDERED.
5 __________________________________
6 LINDA M. VANZI, Judge
7 WE CONCUR:
8 _________________________________
9 JENNIFER L. ATTREP, Judge
10 _________________________________
11 KRISTINA BOGARDUS, Judge
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