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State v. Jim10/18/1988
BIVINS, Judge.
Defendant appeals a conviction for one count of great bodily injury by a motor vehicle, contrary to NMSA 1978, Section 66-8-101 (Repl. Pamp. 1987). He raises three issues: (1) whether the prosecution improperly used one of its peremptory challenges to excuse a member of defendant's race; (2) whether the trial court improperly excused a potential juror for cause; and (3) whether the statute under which he was charged and convicted is unconstitutionally vague. Defendant also renews his motion to amend his docketing statement to assert three additional issues, first raised in his memorandum in opposition to the first calendar notice by way of motion to amend the docketing statement. The motion was denied in the second calendar notice. We have reconsidered the denial and affirm it. The issues raised by defendant in his motion to amend the docketing statement are without merit. See State v. Rael, 100 N.M. 193, 668 P.2d 309 (Ct. App. 1983). We are not persuaded by defendant's other contentions and, therefore, affirm.
Defendant was involved in an automobile accident in which he hit another vehicle driven by the victim head-on. There was evidence presented at the trial that defendant had been driving while intoxicated. The victim suffered a fracture to the hip, resulting from the femur being driven back into the hip joint. The orthopedic surgeon who treated the victim testified regarding the treatment the victim had to undergo, which included an operation to insert pins in the bone to hold it in place while it healed. The surgeon testified regarding the normal healing time and the time it took the victim to heal. The surgeon also testified regarding rehabilitation time. The victim testified regarding his injury and rehabilitation. Based on all the evidence presented at trial, the jury convicted defendant.
JURY CHALLENGES
(a) Preliminary
Initially, we note that facts have been argued in the briefs that are not a part of the record. The facts are based on jury questionnaires, which were not made part of the record even though the trial court offered to do so. It is defendant's burden to bring up a record sufficient for review of the issues he raises on appeal. See State v. Padilla, 95 N.M. 86, 619 P.2d 190 (Ct. App. 1980). If he does not, all inferences will be resolved in favor of the trial court's ruling. Id. This court will not consider any references made to the jury questionnaires. See Southern Union Gas Co. v. Taylor, 82 N.M. 670, 486 P.2d 606 (1971).
(b) Claim of Discriminatory Peremptory Challenge
Defendant argues that the prosecution improperly exercised a peremptory challenge against a potential juror of defendant's
race. At voir dire, defense counsel had informed the trial court and the panel that both defendant and the victim are Navajo Indians. No questions were asked of any potential jurors regarding their race. During selection of the panel, the prosecution exercised a peremptory challenge against Ms. Clah. Defense counsel objected that Ms. Clah is a Navajo Indian and, therefore, the prosecution had to state the reasons for the challenge. The prosecution responded that, other than her appearance, there was no showing that Ms. Clah was of the same race as defendant, and that Ms. Clah was struck on the basis of her questionnaire. After some discussion regarding the questionnaire, the trial court allowed the challenge.
The state's
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