State v. Cavanaugh

• Decision Date: 06 December 1993
• Docket Number: No. 14480,14480
• Citation: 1993 NMCA 152,116 N.M. 826,867 P.2d 1208
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Patrick CAVANAUGH, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1208

867 P.2d 1208

116 N.M. 826

STATE of New Mexico, Plaintiff-Appellee, v. Patrick CAVANAUGH, Defendant-Appellant.

No. 14480.

Court of Appeals of New Mexico.

Dec. 6, 1993.

Certiorari Denied Jan. 19, 1994.

[116 N.M. 827] Tom Udall, Atty. Gen., Ann M. Harvey, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Amme M. Hogan, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

PICKARD, Judge.

Defendant appeals his conviction for driving while under the influence of intoxicating liquor contrary to NMSA 1978, Section 66-8-102 (Cum.Supp.1993) and resisting, evading, or obstructing an officer contrary to NMSA 1978, Section 30-22-1(B) (Repl.Pamp.1984). Defendant argues that (1) he was given inadequate notice of the charges against him, (2) statements made by him to the arresting officer should have been suppressed, (3) there was insufficient evidence to support his conviction, (4) the trial judge erred in refusing a tendered jury instruction, (5) the trial judge erred in denying his request to poll the jury about an alternative jury instruction, and (6) cumulative error deprived him of a fair trial. We affirm as to all issues.

FACTS

Defendant was a passenger in a car owned and driven by Mr. Layne McGinty. McGinty's car was pulled over by Officer Terry Gallagher on suspicion of drunk driving. When McGinty failed a field sobriety test, Officer Gallagher asked Defendant and the other passengers in the car whether any of them had been drinking. Officer Gallagher testified that he did not ask this question for the purpose of issuing a citation, but rather to determine if anyone could drive the car home for McGinty. Defendant said that he had not been drinking. Upon smelling liquor on Defendant's breath, Officer Gallagher asked Defendant again if he had been drinking. Defendant then answered that he had had two beers that night. Officer Gallagher gave Defendant a field sobriety test, from which Officer Gallagher concluded that Defendant was not capable of driving. While Officer Gallagher radioed for backup, Defendant got behind the wheel of McGinty's car, sped off, and led Officer Gallagher and another officer, Officer Terry Colwell, on a high-speed chase. After his arrest, a blood alcohol content (BAC) test was given to Defendant, the results of which showed his BAC to be above the legal limit for driving.

ADEQUACY OF NOTICE OF THE

OFFENSE CHARGED

Defendant argues that he was given inadequate notice as to the charge of driving while under the influence of intoxicating liquor. Relying on State v. Raley, 86 N.M. 190, 521 P.2d 1031 (Ct.App.), cert. denied, 86 N.M. 189, 521 P.2d 1030 (1974), Defendant contends that he was given insufficient notice because of the use of the acronym "DWI" in the charging documents. In Raley, we held that a criminal complaint for driving under the influence of intoxicating liquor requires a more specific description of the offense than simply "DWI" because those initials standing alone could mean driving either while under the influence of alcohol or while under the influence of drugs. Id. at 192, 521 P.2d at 1033. In the instant case, however, the criminal complaint stated as an essential fact that defendant was arrested after "driving under the influence of alcohol." Even if Raley is still good law, we hold that this provided Defendant with adequate notice of the charges against him.

STATEMENTS MADE BY DEFENDANT TO OFFICER GALLAGHER

Defendant argues that the trial court should have suppressed his statements to Officer Gallagher regarding his drinking because they were involuntary and because they were made prior to his being given warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In reviewing this issue, we consider "whether the law was correctly applied to the facts, viewing them in a manner most favorable to the prevailing party; all reasonable inferences in support of the court's decision will be indulged in, and all inferences or evidence to the contrary will be disregarded." State v. Boeglin, 100 N.M. 127, 132, 666 P.2d 1274, 1279 (Ct.App.1983).

Statements made to an officer prior to the giving of Miranda warnings must be suppressed only when the statements are the product of a custodial interrogation. State v. Chamberlain, 112 N.M. 723, 728, 819 P.2d 673, 678 (1991). Whether an individual is in police custody is determined by how a reasonable person in the individual's position would have understood the situation. Id. Interrogation occurs when an officer subjects an individual to questioning or circumstances which the officer knows or should know are reasonably likely to elicit incriminating responses. See State v. Ybarra, 111 N.M. 234, 238, 804 P.2d 1053, 1057 (1990). In the instant case, Defendant had committed no crime at the time Officer Gallagher asked Defendant whether he had been drinking. Further, there was no indication that Officer Gallagher should have known that Defendant would subsequently speed off in McGinty's car. Thus, there was no reason for Officer Gallagher to know that his questions would produce a response that would later prove to be incriminating. Even assuming that Defendant was in custody at the time of his statement, which we do not, Defendant's statements to Officer Gallagher were not the products of interrogation.

SUFFICIENCY OF THE EVIDENCE

Defendant argues that the State presented insufficient evidence to support a conviction either for driving under the influence of intoxicating liquor or for driving with a BAC of .10% or higher. When a defendant attacks a conviction on sufficiency of the evidence grounds, we view testimony and resolve inferences from the evidence in the light most favorable to the verdict. State v. Baca, 111 N.M. 270, 276, 804 P.2d 1089, 1095 (Ct.App.1990), cert. denied, 111 N.M. 164, 803 P.2d 253 (1991).

A. Driving Under the Influence of Intoxicating Liquor

Defendant contends that there was insufficient evidence to support a conviction for driving under the influence of intoxicating liquor. At trial, Officer Gallagher testified that Defendant offered to drive McGinty's car home. Officer Gallagher further testified that he smelled liquor on Defendant's breath, that Defendant admitted that he had been drinking, and that Defendant failed a field sobriety test. Officer Gallagher therefore concluded that Defendant was in no condition to drive and asked Defendant simply to wait in McGinty's car. While Officer Gallagher was calling for backup, Defendant got behind the wheel of McGinty's car and sped off. Defendant then led Officer Gallagher and Officer Colwell, the backup officer, on a chase at speeds of up to eighty miles per hour. Defendant's vehicle was weaving. When he was eventually pulled over, Defendant resisted arrest and kicked at the officers after being handcuffed. This evidence was sufficient for a rational jury to conclude that Defendant drove while under the influence.

B. Driving With a Blood Alcohol Content of .10% or Higher

Defendant also argues that there was insufficient evidence to support a verdict that his BAC was .10% or more at the time he was driving. One hour and forty minutes after being arrested, Officer Colwell administered a BAC test on Defendant on an Intoximeter 3000 machine that he was certified to operate. The results of the test showed Defendant to have a BAC of approximately .13%. Defendant first argues that the results of the test should not have been admitted into evidence because Officer Colwell did not know how to administer the test properly. However, Officer Colwell testified that the machine had been calibrated the week before the test was given to Defendant. See Plummer v. Devore, 114 N.M. 243, 245, 836 P.2d 1264, 1266 (Ct.App.) (showing of proper machine calibration must be made before BAC tests are admissible), cert. denied, 114 N.M. 82, 835 P.2d 80 (1992). Once this threshold foundation was laid, any questions about Officer Colwell's ability to give a BAC test went to the weight of the evidence, not its admissibility. See State v. Eden, 108 N.M. 737, 743, 779 P.2d 114, 120 (Ct.App.), cert. denied, 108 N.M. 681, 777 P.2d 1325 (1989).

Defendant next argues that, assuming that the test results were properly admitted, there was still insufficient evidence of a BAC of .10% or higher at the time Defendant was driving. Defendant's reliance on Commonwealth v. Modaffare, 601 A.2d 1233 (1992), for this argument is misplaced because that case is distinguishable from this case. In Modaffare, the defendant was involved in a traffic accident. Id. at 1234. One hour and fifty minutes later he was given a BAC test, which registered .108%, a result the court characterized as just "barely" over the limit. Id. at 1234, 1235. The Modaffare court reversed the defendant's conviction for driving with a BAC over .10%. Id. at 1236. However, the only other evidence in that case of the defendant's intoxication at the time he was driving was the fact that he had been drinking at two taverns sometime earlier in the evening. Id. Also, a physician had testified that the defendant's BAC may have peaked after the accident but before the test was given. Id. at 1235.

In the instant case, by contrast, testimony was given by Officers Gallagher and Colwell which tended to show Defendant's intoxication immediately before, during, and immediately after Defendant drove the vehicle. Further, there was no evidence presented that Defendant's BAC peaked after he drove the car. As the BAC test results were admissible and sufficiently over the limit, we hold that under the facts of this case, Defendant's blood alcohol content at the time of testing, combined with the evidence of Defendant's behavior before, at, and after the time of driving, could reasonably have led the jury to infer that Defendant's blood alcohol content was .10% or more when he drove McGinty's car. See Baca, 111 N.M. at 276, 804 P.2d at 1095 (...