State v. Hernandez

• Citation: 388 P.3d 1016
• Decision Date: 28 November 2016
• Docket Number: NO. 33,709,33,709
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ramon HERNANDEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

388 P.3d 1016

STATE of New Mexico, Plaintiff-Appellee,

v.Ramon HERNANDEZ, Defendant-Appellant.

NO. 33,709

Court of Appeals of New Mexico.

Filing Date: November 28, 2016

Certiorari Denied, January 24, 2017, No. S-1-SC-36237

Conditional Cross-Petition Denied, January 24, 2017, No. S-1-SC-36237

Hector H. Balderas, Attorney General, Santa Fe, NM, Kenneth H. Stalter, Assistant Attorney General, Albuquerque, NM for Appellee.

Bennett J. Baur, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

GARCIA, Judge.

{1} Defendant Ramon Hernandez appeals his convictions for homicide by vehicle, contrary to NMSA 1978, Section 66–8–101(A) (2004, amended 2016), great bodily harm by vehicle, contrary to Section 66–8–101(B), and reckless driving, contrary to NMSA 1978, Section 66–8–113(A) (1987). Defendant asserts that (1) the district court erred in failing to grant a mistrial following improper testimony regarding excluded evidence by New Mexico State Police Officer Mario Vasquez; (2) prosecutorial misconduct bars retrial; (3) the district court erroneously admitted Defendant's conversation with a visitor that was recorded while Defendant was incarcerated; (4) there was insufficient evidence to prove Defendant drove at the time of the accident or that Defendant's conduct was reckless; (5) the district court's findings were insufficient to support its classification of homicide by vehicle as a serious violent offense; (6) cumulative error in the district court's evidentiary rulings deprived Defendant of a fair trial; and (7) Defendant's conviction for reckless driving violates the prohibition against double jeopardy. We hold that the improper testimony regarding the purported confession was extremely prejudicial and warranted a mistrial. We also hold that the prosecutor's conduct did not rise to a level that would bar retrial and that there was sufficient other evidence to support Defendant's convictions. We remand for a new trial. Retrial obviates the need to address Defendant's remaining arguments raised on appeal. Accordingly, we reverse Defendant's three convictions and remand for a new trial.

BACKGROUND

{2} On June 10, 2012, there was a two-car collision on southbound I-25 near Exit 307 in San Miguel County, New Mexico. Defendant and Domingo Gonzales were in one car, a Pontiac sedan. Victims Aileen and Zachary Smith ("the Smiths" collectively or "Female Victim" and "Male Victim" respectively when referred to as individuals) were in the other car, a Suzuki SUV. Male Victim was driving in the right lane when the Pontiac entered the highway at a low rate of speed. Male Victim signaled and moved the Suzuki into the left lane to avoid the slow-moving Pontiac. The Pontiac left its lane and was headed in a horizontal direction toward the left lane where the Suzuki was driving. Male Victim tried to avoid the Pontiac, the two cars collided, nearly perpendicular. The right front of the Suzuki hit the driver's side of the Pontiac, near the front end, and the airbags in the Suzuki deployed.

{3} Shortly after the collision, Jorge Acosta, a passerby, stopped to help. Acosta observed two people emerge from the driver's side window of the Pontiac. The first person, who was later identified as Gonzales, walked away from the scene of the accident. The second person was identified as Defendant. Acosta did not observe who had been driving the Pontiac, but Defendant told him that "the one who had run was the one who had driven." Throughout the investigation and in his conversations with the first responders, Defendant maintained that he was not the driver of the Pontiac. He stated to a first responder that "he did not know" who was driving and told officers that Gonzales was driving at the time of the accident.

{4} Female Victim was seven months pregnant at the time of the accident. Her water broke on scene and she began to have severe contractions. Male Victim called 911.

Female Victim was trapped in the car but first responders freed her and took her to the hospital. There, doctors performed an emergency cesarean delivery. A baby boy (Baby) was born alive but was not breathing and soon died from blunt force injuries and prematurity. Female Victim also suffered other significant injuries with permanent effects. The Smiths had one child after the accident, but doctors advised against any more children due to Female Victim's ongoing health risks associated with the accident. Male Victim's injuries were not as serious and healed without lasting consequence.

{5} Ultimately, Defendant was charged with multiple crimes related to the collision, including homicide by vehicle, great bodily harm by vehicle, driving under the influence of intoxicating liquor or drugs, and reckless driving. The State alleged that Defendant was the driver of the Pontiac at the time of the accident.

{6} By the time of trial, Gonzales was not available to testify because he was deceased. No statements from Gonzales were introduced as evidence. Evidence introduced at trial included the following: (1) a recorded conversation between Defendant and a visitor at the jail, with Defendant making remarks the State alleges imply that Defendant was the driver based upon a reference to his location in the vehicle; (2) accident reconstruction testimony; (3) DNA evidence taken from the Pontiac and compared against Defendant and Gonzales; and (4) testimony from witnesses on scene and investigative officers, including improper testimony from New Mexico State Police Officer Mario Vasquez that Defendant had confessed to another officer about being "behind the wheel" at the time of the accident. Officer Vasquez's "behind the wheel" hearsay testimony was specifically excluded by a pretrial motion in limine, but after failing to adhere to the court's admonishment at trial, it was ultimately excluded again by a curative instruction to the jury to "disregard that statement [by Officer Vasquez] and to not consider it for any purpose."

{7} The jury convicted Defendant of homicide by vehicle (based upon evidence of reckless driving), great bodily harm by vehicle (also based upon evidence of reckless driving), and reckless driving. The jury acquitted Defendant of driving under the influence of intoxicating liquor or drugs.

{8} Defendant appeals, raising numerous issues. We address three of the issues raised: (1) whether the district court should have granted a mistrial following the improper reference by Officer Vasquez to the excluded confession; (2) whether alleged prosecutorial misconduct bars retrial; and (3) whether there was sufficient evidence to support Defendant's convictions and remand for a new trial.

DISCUSSION

I. Mistrial

A. The Purported Confession Testimony

{9} We address whether the district court erred when it failed to grant a mistrial based on Officer Vasquez's improper trial testimony that Defendant allegedly confessed to being "behind the wheel" at the time of the accident. Prior to testifying at trial, Officer Vasquez had been admonished that no such confession was ever made to Agent Gomez and, as a result, this purported confession was excluded from the State's evidence as inadmissible hearsay and was not to be mentioned at trial.

{10} Officer Vasquez previously prepared a written report stating Agent Gomez told him that Defendant admitted to being the driver. However, Agent Gomez specifically refuted the existence of any such purported confession as well as any alleged statement made to Officer Vasquez. Accordingly, the parties agreed and stipulated that Defendant had never admitted to Agent Gomez that he was the driver at the time of the collision. Therefore, the purported statement in Officer Vasquez's report was hearsay, factually incorrect, and prejudicial to Defendant. Prior to trial, Defendant moved in limine to exclude any such testimony regarding the purported confession as both factually incorrect and as prejudicial hearsay. The district court granted Defendant's motion, agreeing that what Officer Vasquez had written in his report about a purported confession constituted inadmissable hearsay. Defense counsel cautioned the district court and the State that any such testimony from Officer Vasquez would be "undoable" and a mistrial issue. The district court then specifically directed the State to confer with Officer Vasquez and stated, "I want it understood by [Officer Vasquez] that he's not to be repeating what [Agent] Gomez told him occurred" and to "make sure that he is clear he's not to testify to any hearsay."

{11} At trial, prior to Officer Vasquez's testimony, the prosecutor reconfirmed and acknowledged the district court's previous directive that it admonish Officer Vasquez not to testify as to anything he was told by Agent Gomez. The district court responded, "I just want to make sure because ... I don't want to end up with a mistrial at this point in time." After Officer Vasquez was called to testify and improperly testified regarding Defendant being incarcerated, the district court issued another warning and put the State on further notice that "[Officer Vasquez] likes to spit out a lot of information at a time, so be real careful with the questions and be real specific with him." Nonetheless, just moments later the following exchange occurred with Officer Vasquez.

Prosecutor: We talked about the search of the vehicle and the search warrant for [D]efendant and then you interviewed, well, actually Agent Gomez interviewed [D]efendant.

Officer Vasquez: That is correct.

Prosecutor: Okay, what was your next step after that in your investigation?

Officer Vasquez: In our investigation, uh, like I said, we were outside of the interview room while Agent Gomez said [Defendant] were speaking. Um, Mr. Um, Agent Gomez came out and stated that there was a confession of being behind the wheel.

{12} Following this exchange, the district court immediately recognized the error that had occurred and excused the jurors from the courtroom. Once...