State v. Gutierrez

• Decision Date: 24 April 2003
• Docket Number: No. 22,738.,22,738.
• Citation: State v. Gutierrez, 70 P.3d 787, 133 N.M. 797, 2003 NMCA 77 (N.M. App. 2003)
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joseph R. GUTIERREZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

70 P.3d 787

133 N.M. 797

2003 NMCA 77

STATE of New Mexico, Plaintiff-Appellee, v. Joseph R. GUTIERREZ, Defendant-Appellant.

No. 22,738.

Court of Appeals of New Mexico.

April 24, 2003.

Certiorari Denied June 6, 2003.

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 28,071, June 6, 2003.

OPINION

SUTIN, Judge.

{1} Defendant appeals from convictions of driving while under the influence of intoxicating liquor, speeding, and failing to obey a stop sign. He asserts (1) questions by the prosecutor violated his right to remain silent, and (2) violation of the six-month rule in Rule 5-604(B) NMRA 2003. We affirm.

BACKGROUND

{2} Officer Gina La Brosse and Sergeant Randy Spear of the Police Department in Ruidoso, New Mexico, testified at Defendant's jury trial. The following occurred, according to their testimony. La Brosse spotted a vehicle running a stop sign and traveling twenty-seven miles per hour in a fifteen mile per hour zone. La Brosse engaged her emergency equipment and pursued the vehicle for three-tenths of a mile achieving speeds of fifty miles per hour, after which the vehicle pulled off the road into a restaurant parking lot. La Brosse did not lose sight of the vehicle during the pursuit.

{3} After La Brosse pulled in behind the vehicle, with the emergency equipment still on, Defendant exited the vehicle and headed toward the restaurant. La Brosse asked Defendant to return to his vehicle and requested his driver's license, registration, and insurance. La Brosse smelled the odor of alcohol, and noticed Defendant's eyes were red and watery, and his speech was slurred. Defendant first told La Brosse that he was going to Ruidoso Downs, and that he had pulled into the restaurant parking lot to get out of her way. When asked whether he had been drinking, Defendant initially said he had not, but later stated he had had three beers at 4:30 p.m. but that he was "fine to drive." La Brosse told Defendant she had reason to believe he was under the influence and was driving while impaired, and that she would be calling another officer to conduct field sobriety tests. According to La Brosse's testimony, Defendant "got very upset at that time and said that he didn't need this to happen. That he was fine to drive, that he was just going to friends," and that "he wouldn't drive[,] he would park the car."

{4} Upon his arrival, Sergeant Spear told Defendant that field sobriety tests would be conducted. Defendant refused and stated, "just arrest me." Spear explained to Defendant that if he were to pass the field sobriety tests, he would be free to leave. Defendant again refused, stating that the police "already ha[d] it made up in [their] mind[s]." Defendant again stated, "just arrest me." Defendant was placed under arrest, taken to the police station, booked, and asked to submit to a breathalyzer test. He refused. Spear told La Brosse that a search warrant had been obtained and that La Brosse was to transport Defendant to Lincoln County Medical Center for a blood draw. The toxicology report from this blood draw revealed a .08 percent blood alcohol content. A toxicologist testified that Defendant's blood alcohol content at the time of the stop would have been somewhere between .10 and .14 percent.

{5} On direct examination, as a part of Defendant's case, Defendant testified that the vehicle was his. However, Defendant also testified that he refused to submit to the field sobriety tests because he was not driving the vehicle. Rather, he testified, a man named Dale was driving. He further testified he did not know Dale's last name, Dale had been drinking, he and Dale were on their way to a restaurant, Dale had already gotten out of the car by the time La Brosse arrived, Defendant had the keys because he had pulled them from the ignition, and he had not seen Dale since that evening. Significantly, during this direct examination, Defendant testified, "I just told [La Brosse] that I wasn't driving and that's why I wouldn't submit to a field sobriety test." The police officers' testimony during the State's case revealed no statement by Defendant regarding this "Dale" testimony.

{6} Defendant was convicted of driving while under the influence of intoxicating liquor, speeding, and failing to obey a stop sign. He appeals, contending the prosecutorial questioning during trial regarding whether he informed the police officers or the district attorney about "Dale" constituted improper comment on his silence in violation of the Fifth Amendment. He also contends that his trial was not commenced within six months as required under Rule 5-604(B).

DISCUSSION

Preservation, Scope, and Standard of Review

{7} The State asserts that Defendant failed to object to the prosecutor's questions. Defendant acknowledges this, but correctly contends that no trial objection is necessary for review. See State v. Telles, 1999-NMCA-013, ¶ 4, 126 N.M. 593, 973 P.2d 845; State v. Carrasco, 1996-NMCA-114, ¶ 33, 122 N.M. 554, 928 P.2d 939,aff'd and rev'd in part on other grounds, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075.

{8} Our Supreme Court has explained the parameters and nature of our review where impermissible prosecutorial comment on silence has been alleged but error was not preserved:

Notwithstanding the lack of a timely objection at trial, an appellate court will apply the doctrine of fundamental error and grant review of certain categories of prosecutorial misconduct that compromise a defendant's right to a fair trial. Remarks by a prosecutor that directly comment on a defendant's invocation of the right to remain silent after receiving warnings under Miranda ... fall into this category of error. The same rule applies to certain prosecutorial questions pertaining to the defendant's postarrest silence and certain testimony elicited by those questions. We apply this rule inasmuch as it is fundamentally unfair and a violation of due process to allow people's invocation of their right to remain silent to be used against them after they have been arrested and informed of this right. In such circumstances, a prosecutor's comment on the defendant's exercise of his [or her] fifth amendment right to remain silent may constitute error requiring reversal. To the extent that a trial court permits the prosecution to introduce evidence of a defendant's silence, we also apply the plain error rule.

State v. Allen, 2000-NMSC-002, ¶ 27, 128 N.M. 482, 994 P.2d 728 (alteration in original) (internal quotation marks and citations omitted).

{9} Defendant nowhere asserts either fundamental error or plain error. Although he cites cases that discuss such error, he nowhere argues that fundamental error or plain error occurred or how either error occurred. We normally refuse to step into review when not invited by the appellant to do so. However, we have not retreated from our deep concern, expressed in State v. Hennessy, 114 N.M. 283, 837 P.2d 1366 (Ct.App. 1992), about prosecutorial overreaching in comment-on-silence cases. See id. at 285-86, 837 P.2d at 1368-69 (stating "the remedy of automatic reversal regardless of objection" to be the favored practice in impermissible-comment cases "as a prophylactic measure to deter prosecutors from obtaining convictions by unfair tactics"), overruled on other grounds by State v. Lucero, 116 N.M. 450, 863 P.2d 1071 (1993); see also State v. Garcia, 118 N.M. 773, 777, 887 P.2d 767, 771 (Ct.App.1994) (referring to "the nearly twenty-year-old line of New Mexico cases that disapprove of prosecutorial use of postarrest silence"). Our role continues to be one of vigilance in discouraging prosecutors from unfair questioning of a defendant who testifies at trial in his own behalf. As a result, because of the nature of the prosecutorial questioning in this case, we give Defendant the benefit of the doubt in his appellate briefing and crack open the gate for fundamental error and plain error review in this case. "Because the facts are undisputed, we review de novo the legal question whether the prosecutor improperly commented on Defendant's silence." State v. Foster, 1998-NMCA-163, ¶ 8, 126 N.M. 177, 967 P.2d 852.

{10} No evidence exists in the record regarding whether the police officers informed Defendant, as required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that he had the right to remain silent. However, no issue exists regarding whether the questioning was permissible because Miranda assurances were not given. See Fletcher v. Weir, 455 U.S. 603, 605-07, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (distinguishing between instances in which Miranda warnings are, and are not, given in light of whether comment on silence in a state court proceeding violates due process, and stating that "[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand"); Garcia, 118 N.M. at 777,887 P.2d at 771 (noting that "the United States Constitution presents no impediment to the use of postarrest silence when the defendant did not receive Miranda warnings"; that New Mexico cases give no guidance on the distinction made in Fletcher; and determining that the same standard of review applied regardless of whether the defendant had received Miranda warnings). We decide the comment-on-silence issue in this appeal under the assumption that the Miranda assurance of the right to remain silent was given to Defendant.

{11} It is unclear whether the prosecutor's questions related to pre- or post-arrest discussions between Defendant and the police officers. Defendant argues his case as though the questions related to postarrest...