State v. Armijo, 32,139.

• Decision Date: 20 December 2013
• Docket Number: No. 32,139.,32,139.
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Edward ARMIJO, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

316 P.3d 902

STATE of New Mexico, Plaintiff–Appellee,

v.Edward ARMIJO, Defendant–Appellant.

No. 32,139.

Court of Appeals of New Mexico.

Oct. 8, 2013.

Certiorari Granted, Dec. 20, 2013,

No. 34,400.

Gary K. King, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Acting Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Albuquerque, NM, for Appellant.

OPINION

FRY, Judge.

{1} Defendant Edward Armijo appeals his first-offense conviction for driving under the influence of intoxicating liquor (DWI) entered by the metropolitan court and subsequently affirmed by the district court following on-record review. In this appeal, Defendant asserts four theories of trial error, including error in jury selection, in the admission of hearsay, in the admission of improper opinion testimony, and cumulative error. Having reviewed the metropolitan court proceedings, we agree that—in the specific context of this case—there is a reasonable probability that the jury's verdict may have been induced by the unqualified opinion testimony of a witness for the State. We therefore reverse on that basis. Because the remaining issues are unlikely to recur on remand, we express no opinion on the other errors claimed by Defendant.

BACKGROUND

{2} Defendant was tried pursuant to a criminal complaint charging him with DWI, speeding, and failure to maintain a traffic lane. Because the jury acquitted him of failing to maintain a traffic lane and Defendant does not appeal his conviction for speeding, only the conviction for DWI is at issue in this appeal. With regard to that charge, the State's evidence at trial consisted of the results of a breath alcohol test and the testimony of two police officers. The State's first witness, Officer Eric Hammon, testified that he used radar to determine that Defendant was driving forty-five miles per hour on a road with a posted speed limit of thirty-five miles per hour. Officer Hammon also saw Defendant's car drift to the right within his lane so that the passenger-side tires of his car touched the right-hand lane line. Officer Hammon pulled Defendant over for speeding and failure to maintain his lane. Officer Hammon testified that when he approached the car, Defendant was behind the wheel, there were two passengers in the car, and he “could smell the distinct odor of an alcoholic beverage emitting from him.” Officer Hammon also testified that Defendant's eyes were “bloodshot and watery,” that he “could detect some slurring of his speech,” and that Defendant reported having had “one beer earlier in the evening.”

{3} Officer Hammon called for a DWI unit to continue the investigation. Officer Marisa Martinez arrived ten minutes later to conduct a DWI investigation. Officer Martinez was the State's second witness. She testified that Defendant's eyes were bloodshot and watery, that she noticed an odor of alcohol, and that the Defendant told her he had a beer ten minutes before he was pulled over. Officer Martinez then administered three field sobriety tests: a horizontal gaze nystagmus test, a walk-and-turn test, and a one-leg-stand test. Defendant performed the horizontal gaze nystagmus test as instructed. The walk-and-turn test required Defendant to walk in a straight line for nine steps with his hands at his sides while touching heel-to-toe, to turn around, and to walk back in a similar fashion. In performing that test, Defendant missed touching his heel to his toes twice, did not turn in the way Officer Martinez instructed, and once raised his arms from his sides. The one-leg-stand test required Defendant to raise one foot six inches off the ground and maintain that pose while counting out loud for thirty seconds. Officer Martinez testified that, while doing so, Defendant “was swaying while balancing and he raised his arms for balance.”

{4} Officer Martinez determined that Defendant “was showing the signs of impairment,” handcuffed him, and took him to the transport center to test his breath alcohol content. Officer Martinez tested two breath samples and the breath card showing the test results was admitted into evidence at trial. That card showed Defendant's breath scores for the two samples to be .06 and .05 grams per 210 liters of breath. At the close of Officer Martinez's direct examination, the State asked her whether .06 and .05 are “a particularly high breath score,” before rephrasing the question to, “is that breath score over the legal limit?” Defendant's objection to that question was sustained, and the State passed the witness to the defense.

{5} Defendant then cross-examined Officer Martinez and the State conducted a re-direct examination. At the end of that re-direct examination, the State returned to the topic of Defendant's breath alcohol content, asking with regard to his breath scores of .06 and .05, “what does that indicate to you?” Defendant's objection to that question was sustained, and the State asked “is a .06/.05 consistent with [D]efendant's admission of one beer?” Officer Martinez answered “no, sir,” and the State followed up with the question “is a .06/.05 consistent with more than one beer?” Defendant objected again, the objection was again sustained, and the court instructed the jury “you are to disregard the line of questioning.”

{6} When the State then rested, Defendant moved for a directed verdict on all charges, which was denied except as to driving with a blood or breath alcohol content of .08 or more. SeeNMSA 1978, § 66–8–102(C)(1) (2008) (defining per se DWI). Defendant then rested. The jury ultimately returned its verdict acquitting Defendant of failure to maintain a traffic lane and convicting on the charges of speeding and driving under the influence. Defendant appealed to the district court, which affirmed, and this appeal follows.

DISCUSSION

{7} Defendant argues that Officer Martinez's assessment of his breath alcohol content results was “unqualified opinion testimony” that constituted “incurable error.” Defendant is correct that Officer Martinez's opinion regarding the amount of alcohol he must have consumed in order to produce breath scores of .06/.05 was inadmissible. The State's questions regarding whether those scores suggested that Defendant had consumed “one beer” or “more than one beer” sought opinion testimony for which no foundation was laid at trial. SeeRule 11–703 NMRA (providing foundation requirements for expert testimony in the form of an opinion). Without such a foundation, the witness was not qualified to offer her opinion on the matter. See State v. Alberico, 1993–NMSC–047, ¶¶ 41–54, 116 N.M. 156, 861 P.2d 192.

{8} In response, the State asserts that the testimony at issue amounts to no more than harmless error, specifically relying upon the metropolitan court's admonishment to the jury that it should “disregard this line of questioning.” Notably, the State neither argues that the questions asked were proper nor suggests how any answers Officer Martinez gave to those questions could possibly have been admissible. Instead, the State claims that “[t]he trial judge's immediate curative instruction remedied the prosecution's isolated improper question and Officer Martinez's answer.”

{9} It is true that, “ [g]enerally, a prompt admonition from the court to the [j]ury to disregard and not consider inadmissible evidence sufficiently cures any prejudicialeffect which might otherwise result.” State v. Newman, 1989–NMCA–086, ¶ 19, 109 N.M. 263, 784 P.2d 1006 (emphasis added). However, where “inadmissible testimony [is] intentionally elicited by the prosecution,” the general rule does not apply and, “regardless of whether a trial court admonishes the jury not to consider the testimony, [appellate courts] must determine whether there is a reasonable probability that the improperly admitted evidence could have induced the jury's verdict.” State v. Gonzales, 2000–NMSC–028, ¶ 39, 129 N.M. 556, 11 P.3d 131overruled on other grounds by State v. Tollardo, 2012–NMSC–008, ¶ 37 n. 6, 275 P.3d 110;accord State v. Ruiz, 2003–NMCA–069, ¶ 6, 133 N.M. 717, 68 P.3d 957;see also State v. Saavedra, 1985–NMSC–077, ¶ 13, 103 N.M. 282, 705 P.2d 1133 (holding that admonitory instruction could cure intentionally elicited testimony only in the absence of a reasonable probability that inadmissible evidence induced the verdict), abrogated on other grounds by State v. Belanger, 2009–NMSC–025, 146 N.M. 357, 210 P.3d 783;cf. State v. Bartlett, 1981–NMCA–019, ¶ 18, 96 N.M. 415, 631 P.2d 321 (finding prosecutor's facially improper question to be “prejudicial error and no attempt to admonish the jury to forget the question could possibly erase the effects”).

{10} Thus, before determining that a curative instruction has cured what would otherwise be error, we must consider whether the offending testimony was unsolicited or was, instead, elicited by the State. In State v. Vialpando, the trial court's offer to give an admonitory instruction to the jury was deemed to have cured the improper testimony of a witness who was asked when he had first met the defendant and who responded, “when he was in the State Penitentiary.” 1979–NMCA–083, ¶ 21, 93 N.M. 289, 599 P.2d 1086. On appeal, this Court acknowledged that such testimony would require a mistrial if “deliberately induced through questioning by the prosecutor who intended that the objectionable response be made by the witness.” Id. ¶ 23. In that case, however, “the witness's response was totally unexpected by the court and the attorneys.” Id. As a result, the error was curable by way of instruction, and not so prejudicial as to require a new trial. Id. ¶ 25. In so holding, this Court was “especially mindful of the lack of any improper motive preceding the witness's unprompted utterance.” Id. ¶ 27.

{11} In contrast, similar testimony was considered sufficiently prejudicial to require a new trial in Saavedra. In that case, a witness who was...