State v. Collins

• Decision Date: 04 March 2005
• Docket Number: No. 24,118.,24,118.
• Citation: 137 N.M. 353,110 P.3d 1090
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Donald COLLINS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

110 P.3d 1090

137 N.M. 353

STATE of New Mexico, Plaintiff-Appellee, v. Donald COLLINS, Defendant-Appellant.

No. 24,118.

Court of Appeals of New Mexico.

March 4, 2005.

Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee.

Daniel R. Lindsey, Daniel R. Lindsey, P.C., Clovis, NM, for Appellant.

OPINION

SUTIN, Judge.

{1} Charged with aggravated DWI and convicted of DWI, Defendant appeals on eight grounds. We affirm.

BACKGROUND

{2} On January 27, 2001, Officer Christopher Williams was talking to another officer in the parking lot of a gas station when he saw a pick-up truck, while turning left at an intersection, cross left of the center of the street onto which he was turning, and almost strike another vehicle that was stopped in the lane reserved for traffic going the other direction. Officer Williams pursued Defendant and stopped him a short distance away when Defendant pulled into the parking lot of an apartment building.

{3} The officer observed the following signs of intoxication: Defendant stumbled when exiting his vehicle, an odor of alcohol coming from Defendant, slurred speech, swaying, and one watery and bloodshot eye. The officer learned that Defendant's other eye was a prosthesis. The officer administered field sobriety tests including the one-leg stand and the walk-and-turn test. After the officer demonstrated and explained the one-leg stand he asked Defendant if he had any problems that would prevent him from performing the test, to which Defendant answered that he had been working on boilers all day. The officer nonetheless continued with the tests, concluded that Defendant was driving while under the influence of alcohol, placed him under arrest, and transported him to jail. At the jail, the officer administered a twenty-minute waiting period and then administered a breath alcohol content (BAC) test. Three breath samples were taken, the first was an insufficient sample, the second was .18, and the third was .17.

{4} Defendant was charged with aggravated driving while under the influence of intoxicating liquor or drugs (aggravated DWI), pursuant to NMSA 1978, § 66-8-102(D) (2004). The case was tried to a jury. The jury was instructed on the charges of aggravated DWI and driving with a BAC of .08 or greater (DWI .08) as a lesser included offense of the aggravated DWI charge. Defendant was convicted of DWI .08. Additional facts will be detailed as necessary in the opinion.

DISCUSSION

{5} Defendant raises eight arguments on appeal: (1) the district court erred in submitting to the jury an instruction that Defendant could be found guilty of DWI .08; (2) by not checking to see if there was anything in Defendant's mouth, the officer did not administer the breath test according to New Mexico regulations, rendering the test results unreliable and inadmissible; (3) the district court erred in admitting the results of the BAC test because the State failed to make the required threshold showing that the machine used to test Defendant was reliable; (4) the court denied Defendant his right to confront the witnesses against him; (5) Defendant's seizure was unreasonable and thus evidence obtained therefrom was inadmissible; (6) the State made improper comments during its cross-examination of Defendant, thus denying him a fair trial; (7) Defendant was prejudiced by cumulative error; and (8) the district court erred in denying Defendant's motion for a directed verdict.

1. The District Court Did Not Err by Instructing the Jury on the Offense of DWI .08

{6} Aggravated DWI can be committed in one of three ways: (1) driving with a blood or BAC of .16 or greater (DWI .16), (2) causing bodily injury to a human being while driving while intoxicated, or (3) refusing to submit to a chemical test. Id. The information charging Defendant with aggravated DWI did not specify with which type of aggravated DWI Defendant was charged. At trial, the State requested and the court submitted jury instructions on the offenses of aggravated DWI.16 and DWI .08 as a lesser included offense of DWI .16. Defendant was convicted of DWI.08.

{7} Defendant argues that the district court erred in submitting a jury instruction for DWI .08 to the jury for three reasons: (1) he was charged only with aggravated DWI and thus was not put on notice that he needed to defend against the charge of DWI.08, (2) DWI .08 is not a lesser included offense of aggravated DWI, and (3) the district court erred by amending the pleadings sua sponte to include the charge of DWI .08.

a. Notice and Lesser Included Offense Analysis

{8} When one offense is a lesser included offense of a crime named in a charging document, the defendant is put on notice that he must defend not only against the greater offense as charged but also against any lesser included offense. See State v. Meadors, 121 N.M. 38, 45, 908 P.2d 731, 738 (1995) ("[A]n offense is a lesser-included offense only if the defendant cannot commit the greater offense in the manner described in the charging document without also committing the lesser offense. Accordingly, the defendant should be fully aware of the possible offenses for which he or she may face prosecution and should have ample opportunity to prepare a defense."). Thus, if we conclude that DWI .08 is a lesser included offense of aggravated DWI it will be dispositive of Defendant's argument that he was not on notice of the charges against him. Whether a defendant is erroneously convicted of an uncharged lesser included offense is a question of law which we review de novo. See State v. McGee, 2002-NMCA-090, ¶ 7, 132 N.M. 537, 51 P.3d 1191.

{9} Meadors sets forth the test for determining whether one offense is a lesser included offense of another. 121 N.M. at 41-47, 908 P.2d at 734-40. First, one must decide whether the stringent "strict elements" test is met. Id. at 42, 908 P.2d at 735. Under the strict elements test, one offense is "a lesser-included offense of another only if the statutory elements of the lesser offense are a sub-set of the statutory elements of the greater offense such that it would be impossible [to ever] commit the greater offense without also committing the lesser offense." Id.

{10} If the strict elements test is not met, then the court should turn to the "cognate approach" to determine whether one offense is a lesser included offense of another. Id. at 44, 908 P.2d at 737. The cognate approach was developed in Meadors, as a clarification of the earlier rule developed in State v. DeMary, 99 N.M. 177, 179, 655 P.2d 1021, 1023 (1982). Meadors, 121 N.M. at 45, 908 P.2d at 738. Under the cognate approach, a party is entitled to an instruction on a lesser included offense, even if the strict elements test is not met, when:

(1) the defendant could not have committed the greater offense in the manner described in the charging document without also committing the lesser offense, and therefore notice of the greater offense necessarily incorporates notice of the lesser offense; (2) the evidence adduced at trial is sufficient to sustain a conviction on the lesser offense; and (3) the elements that distinguish the lesser and greater offenses are sufficiently in dispute such that a jury rationally could acquit on the greater offense and convict on the lesser.

Id. at 44, 908 P.2d at 737.

{11} In the present case, no specific form of aggravated DWI was charged. The charge was essentially an open charge, which notified Defendant that he needed to prepare against all three forms of aggravated DWI. See State v. Stephens, 93 N.M. 458, 461, 601 P.2d 428, 431 (1979) (holding that an open charge of murder which did not specify the type or degree of murder nonetheless afforded proper notice to the defendant of the charges against him), overruled on other grounds by State v. Contreras, 120 N.M. 486, 903 P.2d 228 (1995); State v. Gurule, 90 N.M. 87, 91, 559 P.2d 1214, 1218 (Ct.App.1977) (holding that an indictment was not insufficient where it charged violation of one statute that could be committed in two ways).

{12} Defendant argues that DWI .08 cannot be a lesser included offense under a strict elements test because aggravated DWI can be committed without committing DWI .08. It is true that one can commit aggravated DWI with a BAC less than .08, either by refusing to submit to a chemical test or by causing injury to a human. § 66-8-102(D)(2), (3). Thus, because the greater crime of aggravated DWI can be committed in such a manner that the lesser crime of DWI .08 is not committed, we agree with Defendant that the strict elements test has not been met in this case. See State v. Munoz, 2004-NMCA-103, ¶ 13, 136 N.M. 235, 96 P.3d 796 (holding that the strict elements test was not met because, analyzing the statutory elements of the charges in the abstract, it was theoretically possible to commit the greater crime without committing the lesser crime); State v. Romero, 1998-NMCA-057, ¶¶ 15-16, 125 N.M. 161, 958 P.2d 119 (same). We therefore turn to the cognate approach.

{13} Romero provides support for the determination that DWI .08 was a lesser included offense in the present case under the cognate approach. See id. ¶ 14. In Romero, the greater offense with which the defendant was charged was burglary, of which one element is unauthorized entry. Id. ¶ 11. The lesser offense was criminal trespass, which could be committed by either entering or by remaining in a dwelling without permission. Id. ¶ 15. This Court determined that it was theoretically possible to commit the lesser crime without committing the greater crime, if the defendant had entered the dwelling with permission but remained without consent. Id. ¶¶ 15-16. Thus, we concluded that the strict elements test was not met. Id. ¶ 16. However, we further concluded that under the cognate approach, criminal trespass was a lesser included offense because the sole factual basis of the charge of criminal trespass was...