State v. Atwater
| Decision Date | 01 March 2013 |
| Docket Number | NO. 31,218,31,218 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. TONY R. ATWATER, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY J. Richard Brown, District Judge
Gary K. King, Attorney General
Olga Serafimova, Assistant Attorney General
for Appellee
Bennett J. Baur, Acting Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM
for Appellant
Tony Atwater (Defendant) appeals from the district court's judgment and sentence that was entered following a jury trial, convicting him of aggravated DWI (with a breath alcohol content (BAC) of 0.16 or above) and for failure to yield. Defendant raises six issues on appeal. The focus of this appeal, however, surrounds the admission of Defendant's breath alcohol test (BAT) results without proper certification evidence of the Intoxilyzer, an error that was brought to the district court's attention, not by Defendant during trial, but by the jury during its deliberation. We hold that Defendant's failure to timely preserve the error, or seek a remedy when the jury pointed out the error, precludes relief on appeal. In the absence of fundamental error or argument that the error was plain or caused by ineffective assistance of counsel, and without a showing that other errors occurred in district court, we affirm the judgment and sentence.
I. DISCUSSION
Defendant argues that the BAT results were improperly admitted into evidence because the State did not introduce evidence that the certification from the New Mexico Department of Health, Scientific Laboratory Division (SLD) of the Intoxilyzer was current at the time the officer used it to test Defendant's BAC. Defendant's arguments do not address the problems presented on appeal. It is undisputed that theState did not introduce evidence that the Intoxilyzer was certified by the SLD at the time of the test and that the law requires the State to show that the Intoxilyzer was certified at the time of the test in order to meet its foundational requirements for admission. See State v. Martinez, 2007-NMSC-025, ¶¶ 9-12, 141 N.M. 713, 160 P.3d 894 (). Rather, we must decide whether the issue was sufficiently preserved for appellate review. Defendant's briefing proceeds as though undoubtedly the issue was preserved by events at trial. We hold that it was not.
In order to preserve a claim that the district court erroneously admitted evidence, Rule 11-103(A) NMRA requires a showing that the admission of the evidence affected a substantial right and that the party timely objected to its admission on the specific grounds relied upon on appeal if it is not apparent from the context. See also State v. Trujillo, 119 N.M. 772, 776, 895 P.2d 672, 676 (Ct. App. 1995) (); State v. Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (). When determining whether a claimof error was properly preserved, we recognize the impracticality of requiring trial counsel to articulate a fully-developed, deliberated, and researched argument "in the heat of trial." State v. Gomez, 1997-NMSC-006, ¶ 31, 122 N.M. 777, 932 P.2d 1. Our preservation rules require, however, that "parties . . . assert the legal principle upon which their claims are based and . . . develop the facts in the trial court." Id. ¶ 29.
At various times throughout the trial, the State, and even the defense, proceeded under the mistaken belief that the offense occurred on June 10, 2010, when, in fact, it occurred the year before on June 10, 2009. As a part of this oversight, the State introduced evidence that the Intoxilyzer was certified for the period of October 2009 through September 2010, rather than the applicable period of October 2008 through September 2009. Defendant raised objections to the admission of the BAT results, but did not object to their admission based on this improper certification evidence. The district court denied Defendant's objections, and the BAT results were admitted, showing that Defendant had a BAC of 0.17 and 0.18.
After closing arguments, during which the mistaken date was repeated, instructions were given to the jury for its deliberation. The jury instructions also included the erroneous date. During deliberation, the jury alerted the district court to the discrepancy in dates when it submitted a question to the judge asking for clarification as to whether the incident occurred in June 2009 or 2010. The judgeresponded with a written answer to the jury, explaining that the instructions were wrong and should have read "June 10, 2009." The jury then submitted a question to the judge, asking if it could obtain proper certification evidence for the Intoxilyzer within thirty minutes. The judge's written response informed the jury that there could be no additional evidence.
Although the record contains an audio recording of the exchange between the judge and the attorneys regarding the jury's question as to the date of the offense, the record contains no audio recording of any discussion that took place regarding the jury's discovery that the certification evidence was improper. Defendant's brief-in-chief makes no suggestion that defense counsel sought a remedy at that time and gives no indication as to what the district court and attorneys discussed in response to the jury's question. It is Defendant's obligation as the appellant to provide this Court with a complete record and to demonstrate error. See State v. Druktenis, 2004-NMCA-032, ¶ 44, 135 N.M. 223, 86 P.3d 1050; Varela, 1999-NMSC-045, ¶ 25. Because the record is incomplete and Defendant does not contend that he challenged the improper certification when the jury raised the matter in its question to the judge, we proceed under the assumption that he failed to request any remedy at that time. See Druktenis, 2004-NMCA-032, ¶ 44 (). In fact, Defendant does not dispute the State's representation that the only time he complained that the State failed to establish the necessary certification was in a verbal motion to set aside the verdict. In the motion, Defendant sought a judgment notwithstanding the verdict on the basis that the certification was inadequate to establish the validity of the scores that were submitted as evidence and, therefore, there was an insufficient factual basis on which the jury could have reached its verdict of guilt. The district court invited post-trial motions on the matter, but stated that its initial reaction is that New Mexico does not recognize judgments notwithstanding the verdict in criminal cases. Defendant never filed a post-trial motion.
Regardless, Defendant's oral motion did not argue that the improper certification evidence should have precluded admission of the BAT results, and neither the oral or the written motion would have been effective to preserve a challenge to the admission of the evidence in any event. See State v. Seaton, 86 N.M. 498, 502, 525 P.2d 858, 862 (1974) (). The Intoxilyzer's certification is not an element of the DWI crime that the State must prove beyond a reasonabledoubt. See Martinez, 2007-NMSC-025, ¶ 23 (). The State's obligation to show proper certification for the Intoxilyzer is merely a foundational requirement for the BAT results' admission into evidence, which is a matter decided by the district court alone. See id. ¶¶ 17, 21, 23. Thus, certification is not a matter for the jury to consider when reaching its verdict. As a result, when Defendant moved to set aside the verdict, and the BAT results already were admitted into evidence, the results constituted a sufficient factual basis for the jury to find that his BAC was 0.16 or above. See NMSA 1978, § 66-8-102(D)(1) (2010). To the extent that the district court denied Defendant's motion to set aside the verdict, it was not a ruling on the State's foundational proof. Thus, we are not persuaded that Defendant's motion preserved the matter for appeal, and we see no error in denying the motion.
Without any objection in the record to the admission of the BAT results and in the absence of any legal argument from Defendant supporting the proposition that his issue was preserved by either the jury's question to the judge, or his motion to set aside the verdict, Defendant has not demonstrated that issue was...
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