1999 -NMSC- 10, State v. Torres

Decision Date15 February 1999
Docket NumberNo. 23334,23334
Citation1999 NMSC 10,976 P.2d 20,127 N.M. 20
CourtNew Mexico Supreme Court
Parties1999 -NMSC- 10 STATE of New Mexico, Plaintiff-Appellee, v. Joe Jerry TORRES, Defendant-Appellant.

Phyllis H. Subin, Chief Public Defender, Laurel A. Knowles, Assistant Appellate Defender, Santa Fe, D. Eric Hannum, Assistant Public Defender, Albuquerque, for Appellant.

Hon. Tom Udall, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, for Appellee.

OPINION

MINZNER, Chief J.

¶1 Defendant-Appellant Joe Jerry Torres appeals from the judgment of a bench trial finding him guilty of driving while his license was suspended or revoked, NMSA 1978, § 66-5-39 (1993), and the verdict of a jury trial finding him guilty of driving while intoxicated (DWI), NMSA 1978, § 66-8-102 (1993, prior to 1997 amendment), careless driving, NMSA 1978, § 66-8-114(B) (1969), failure to maintain a traffic lane, NMSA 1978, § 66-7-317 (1978), and failure to yield to emergency equipment, NMSA 1978, § 66-7-332 (1978). We hold that Torres's motion for continuance should not have been denied and that this denial prejudiced Torres's defense. We also hold that testimony as to the results of a Horizontal Gaze Nystagmus (HGN) test should not have been admitted at trial, because the State failed to lay a proper foundation for the admission of this expert testimony. Although the State qualified a police officer as an expert in administering the test, it failed to show the evidentiary reliability of HGN testing. For these reasons, we reverse and remand for a new trial.

I. BACKGROUND

¶2 During the course of Torres's trial, Officer Joseph Byers described the sequence of events that led to his arresting Torres on January 16, 1994. Byers testified that, as he was concluding his shift, he observed a pickup completely weaving off the roadway into the shoulder while traveling from Interstate 40 onto Interstate 25 in Albuquerque. The vehicle then jerked back into the traffic lane. After switching on his siren and red flashing lights, and after the pickup failed to respond, Byers maneuvered his patrol car parallel to the pickup and shined his spotlight into its interior. Despite having the spotlight aimed at his face, the driver of the pickup faced straight ahead and continued at a speed of fifty-five miles per hour. Byers identified Torres as the driver he saw with his spotlight and testified that he saw no other person in the vehicle during this time.

¶3 Byers briefly pursued the pickup as it continued weaving on the freeway before exiting and making its way to a dead-end street. Byers followed the pickup down the street, and the driver parked under a carport. Byers testified that it was dark underneath the carport. Byers pulled up behind the pickup, but as the driver started to exit the vehicle, Byers was having difficulty shifting into park and switching off his siren. Byers then ran to the pickup and found Torres sitting on the driver's side. After encountering some resistance from Torres, Byers handcuffed him, placed him under arrest for DWI, and put him in the back of the patrol car. Byers testified that a strong smell of alcohol emanated from both the pickup and Torres's breath and that Torres had bloodshot eyes and slurred speech. Torres told Byers that he was not the driver of the pickup. He later argued to the jury that he had only been a passenger in the pickup during the traffic violations and that the driver of the pickup ran away from the truck before Byers made his way under the carport.

¶4 Soon after Byers arrested Torres, Officer David Bowdich arrived at the scene to assist Byers. Bowdich took over the investigation and, based on observations leading him to believe Torres was intoxicated, administered three field sobriety tests: the nose touch test, the finger count test, and the HGN test. In administering the HGN test, Bowdich held a pen approximately twelve inches from Torres's face and asked him to focus on the top of the pen and follow it as it moved. Bowdich then determined whether Torres's eyes smoothly tracked the movement, whether there was any jerking of the eyes as the pen moved to a forty-five degree angle, and whether the eyes could remain at a forty-five degree angle.

¶5 At trial, the State introduced testimony from Officer Bowdich concerning results of the HGN test he performed on Torres. Torres objected on the grounds that Officer Bowdich was not qualified to testify about the administration of the HGN test and that the State had failed to demonstrate the HGN test's evidentiary reliability in proving intoxication. The trial court overruled the objection and allowed Bowdich's testimony.

¶6 Before resting his case on April 11, 1995, Torres's counsel moved for a continuance due to a witness's failure to appear at trial. Torres's counsel had delivered a subpoena form for the witness to the Sheriff's Department on March 31, 1995. According to Torres's counsel, this was standard procedure for the Public Defender's Office. On April 10, 1995, the first day of trial, the Sheriff's Department notified Torres's counsel that the subpoena had not been served. Defense counsel called the witness and requested his attendance. Upon the witness's failure to appear, Torres's counsel made a proffer of the expected testimony. Nevertheless, the trial court denied his motion for continuance.

¶7 At the end of trial, the jury found Torres guilty of DWI, careless driving, failure to maintain a traffic lane, and failure to yield to emergency equipment. Following a bench trial, the court found Torres guilty of driving with a revoked license. The trial court then conducted a sentencing hearing and determined that Torres had three prior DWI convictions. As a result, the trial court sentenced Torres for felony DWI consistent with Section 66-8-102(G), as well as for the other counts on which Torres had been convicted.

¶8 Torres appealed to the Court of Appeals, contending that the trial court abused its discretion in denying Torres's motion for continuance or, alternatively, that Torres received ineffective assistance of counsel due to counsel's failure to ensure the missing witness's attendance. Torres also contended that the trial court abused its discretion in admitting Officer Bowdich's testimony regarding the HGN test and that the State failed to introduce sufficient evidence to support one of his three prior DWI convictions. Pursuant to NMSA 1978, § 34-5-14(C)(2) (1972), the Court of Appeals certified the appeal to this Court on the ground that Torres's contentions presented the following issue of substantial public importance: "whether an appellate court can take judicial notice that certain scientific evidence is admissible when the evidence was admitted at trial without the necessary foundation." Certification Order, COA No. 16,654 (filed Dec. 7, 1995). Because we conclude that the trial court erred in denying Torres's motion for continuance, thereby necessitating a new trial, we need not reach the issue of ineffective assistance of counsel or the issue of the sufficiency of evidence to prove the prior DWI conviction. In order to answer the question certified by the Court of Appeals and to provide guidance on remand, however, we do reach the issue of the admissibility of the HGN test and conclude that the trial court erred in admitting the testimony as to the test's results.

II. MOTION FOR CONTINUANCE

¶9 Torres claims that the trial court abused its discretion in denying his motion for a continuance. For the reasons that follow, we agree.

¶10 "The grant or denial of a motion for a continuance rests within the sound discretion of the trial court, and the burden of establishing an abuse of discretion rests with the defendant." State v. Sanchez, 120 N.M. 247, 253, 901 P.2d 178, 184 (1995). There are a number of factors that trial courts should consider in evaluating a motion for continuance, including the length of the requested delay, the likelihood that a delay would accomplish the movant's objectives, the existence of previous continuances in the same matter, the degree of inconvenience to the parties and the court, the legitimacy of the motives in requesting the delay, the fault of the movant in causing a need for the delay, and the prejudice to the movant in denying the motion. See Case v. Mondragon, 887 F.2d 1388, 1396 (10th Cir.1989) (listing similar factors); Dickerson v. Alabama, 667 F.2d 1364, 1370 (11th Cir.1982) (same); Eldred v. Commonwealth, 906 S.W.2d 694, 699-700 (Ky.1994) (same). In the context of a continuance requested for the purpose of obtaining a witness's testimony, these factors serve to balance a criminal defendant's constitutional right to compulsory process, U.S. Const. amends. VI, XIV,1 with the court's interest in controlling its docket and the public's interest in the efficient administration of justice without unnecessary delay. In this case, the denial of the motion for continuance does not follow from a logical application of these factors. Therefore, we conclude that the trial court erred in denying the motion for continuance. Cf. March v. State, 105 N.M. 453, 455-56, 734 P.2d 231, 233-34 (1987) (concluding that the trial court's failure to grant a motion for a continuance in order to obtain a medical evaluation to determine capacity to form specific intent deprived the defendant of due process).

¶11 The State contends that Torres caused the need for the delay by failing to subpoena the witness properly. We disagree. The record indicates that defense counsel delivered a completed subpoena form to the Bernalillo County Sheriff's Department for this witness at least ten days before trial. The record supports the conclusion that the Sheriff's Department failed to serve the witness. Further, the Sheriff's Department did not notify defense counsel that the subpoena had not been served until the day of trial. At that time, defense counsel contacted the witness and requested his attendance. Under these...

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