State v. Herrera

• Decision Date: 13 August 2002
• Docket Number: No. 2 CA-CR 2001-0371.,2 CA-CR 2001-0371.
• Citation: 203 Ariz. 131,51 P.3d 353
• Parties: The STATE of Arizona, Appellee, v. Marcos Antonio HERRERA, Appellant.
• Court: Arizona Court of Appeals

51 P.3d 353

203 Ariz. 131

The STATE of Arizona, Appellee, v. Marcos Antonio HERRERA, Appellant.

No. -0371.

Court of Appeals of Arizona, Division 2, Department A.

August 13, 2002.

Janet Napolitano, Arizona Attorney General, By Randall M. Howe and Cynthia A. Ryan, Tucson, for Appellee.

Susan A. Kettlewell, Pima County Public Defender, By Brian X. Metcalf, Tucson, for Appellant.

OPINION

HOWARD, J.

¶ 1 A jury found defendant/appellant Marcos Herrera guilty of driving under the influence of intoxicating liquor (DUI) and driving with a blood alcohol concentration (BAC) of.10 or above. The jury also acquitted Herrera of three counts of child abuse. The trial court suspended the imposition of sentence and placed Herrera on concurrent two-year terms of probation. He raises several issues on appeal, none of which merits reversal.

BACKGROUND

¶ 2 We view the facts and reasonable inferences therefrom in the light most favorable to sustaining the verdicts. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). Officer Bender observed Herrera driving his car seventy-two miles per hour in a fifty-mile-per-hour speed zone.¹ After initiating a traffic stop, Bender observed that Herrera had "very watery eyes" and that a strong odor of air freshener was emanating from the car. Bender asked Herrera to exit the car to separate him from the air freshener. Once Herrera was outside the car, Bender noticed a "moderate odor of intoxicants" coming from Herrera's mouth. Bender then conducted a horizontal gaze nystagmus (HGN) test on Herrera and saw six out of six possible signs of impairment. Bender also had Herrera perform two field sobriety tests, the walk-and-turn test and the one-leg-stand test, in which Herrera exhibited additional signs of impairment. Bender placed Herrera under arrest, transported him to a police substation, and conducted two breath tests to determine his BAC. Each of those tests produced a BAC result of .126. Herrera admitted that he had consumed two beers or, alternatively, "one big one."

MOTIONS FOR MISTRIAL

¶ 3 In testifying about the walk-and-turn and one-leg-stand tests, Bender stated: "[T]hey have done studies that show a correlating percentage of people, if you see two cues in each test, you see a correlating percentage as to how many people are over .10." Herrera objected to this testimony and moved for a mistrial. The trial court found the testimony improper, but denied Herrera's motion and offered to give the jury a curative instruction, which Herrera declined. Later, when asked by the prosecutor about his "view of [Herrera's] performance" on the field sobriety tests, Bender testified, "I felt he was impaired to the slightest degree." Herrera objected to this testimony and again requested a mistrial. After some discussion, the trial court denied Herrera's second motion for a mistrial, struck the objectionable testimony, and gave the jury a curative instruction. Herrera contends the trial court erred by denying his motions for a mistrial. We review a trial court's denial of a motion for a mistrial for a clear abuse of discretion. State v. Stuard, 176 Ariz. 589, 601, 863 P.2d 881, 893 (1993).

¶ 4 "A declaration of a mistrial is the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted." State v. Adamson, 136 Ariz. 250, 262, 665 P.2d 972, 984 (1983). If a witness makes an inadmissible statement, a trial court "must evaluate the situation and decide if some remedy short of mistrial will cure the error." Id. We address Herrera's motions for mistrial separately.

¶ 5 The state's use of a defendant's performance on field sobriety tests, such as the walk-and-turn and one-leg-stand tests, is "limited to showing a symptom or clue of impairment." State ex rel. Hamilton v. Mesa City Court, 165 Ariz. 514, 517, 799 P.2d 855, 858 (1990). The state cannot use a defendant's performance on field sobriety tests as evidence of a BAC above .10.² See id. at 517, 518 n. 3, 519, 799 P.2d at 858, 859 n. 3, 860. Consequently, Bender gave impermissible testimony that studies have shown a "correlating percentage" of people who exhibit two signs of impairment on field sobriety tests and have a BAC above .10. But, for three reasons, we cannot conclude the trial court erred in denying Herrera's motion for a mistrial.

¶ 6 First, Bender did not reveal the correlating percentage that the studies had shown. For all the jury knew, the correlating percentage could have been extremely low. Thus, Bender's impermissible testimony was too indefinite to thwart justice. See Adamson, 136 Ariz. at 262, 665 P.2d at 984. Second, the state introduced two breath test results showing that Herrera had a BAC of.126. And Herrera had exhibited six out of six signs on the HGN test, which can be used to corroborate a breath test result. Hamilton, 165 Ariz. at 517 n. 2, 799 P.2d at 858 n. 2. Accordingly, to the extent that Bender's testimony had any tendency to prove a BAC above .10, it was merely cumulative. Third, the trial court offered to give the jury a curative instruction, which Herrera rejected. A trial court is in the best position to determine an appropriate remedy for trial error that will preserve a defendant's right to a fair trial. See Adamson, 136 Ariz. at 262,665 P.2d at 984. Based on the record here, we cannot conclude the trial court abused its discretion in denying Herrera's first motion for a mistrial.

¶ 7 Bender's testimony that he believed Herrera had been "impaired to the slightest degree" was also inappropriate. "[O]pinion evidence is usually not permitted on how the jury should decide the case." Fuenning v. Superior Court, 139 Ariz. 590, 605, 680 P.2d 121, 136 (1983); see also Comment, Ariz. R. Evid. 704, 17A A.R.S. When a law enforcement officer in a DUI case parrots the language of A.R.S. § 28-1381(A)(1), he or she is essentially giving an opinion that the defendant is guilty.³ See Fuenning, 139 Ariz. at 605, 680 P.2d at 136. Because such an opinion "embraces all issues" on that particular charge, it is beyond the scope of permissible opinion testimony. Id. It does not follow, however, that such testimony must always result in a mistrial.

¶ 8 Here, the trial court immediately struck Bender's inappropriate opinion and gave the jury a detailed curative instruction. The trial court repeated that curative instruction at the close of evidence and also instructed the jury that it was to disregard any stricken testimony. Additionally, in denying Herrera's second motion for a mistrial, the trial court expressed its firm belief that Herrera could still receive a fair trial. Thus, the trial court engaged in the analysis required by Adamson, 136 Ariz. at 262, 665 P.2d at 984. Based on the trial court's multiple remedial efforts and its express conclusion that Herrera would not be deprived of a fair trial, we cannot conclude the court abused its discretion by denying Herrera's second motion for a mistrial.

MARITAL PRIVILEGE

¶ 9 Herrera contends that he was entitled to invoke the marital fact and communication privilege in A.R.S. § 13-4062 to prevent his wife from testifying and that, therefore, the trial court erred in permitting the state to invoke the child abuse exception in A.R.S. § 13-3620(G) and call his wife as a witness against him. He asserts that A.R.S. § 13-3623(F)(1) limits the term "abuse" to the definition contained in A.R.S. § 8-201(2), which requires an actual injury. Because there were no injuries in this case, Herrera argues, the exception to the marital privilege did not apply. The state responds that, for purposes of the exception to the privilege in § 13-3620(G), the term "abuse" includes the substantive offense of child abuse. The state further argues that, because it had charged Herrera with three counts of child abuse under § 13-3623(B), which does not require an actual injury, it was permitted to call Herrera's wife under the § 13-3620(G) exception to the marital privilege.

¶ 10 Section 13-4062, which defines the marital privilege in criminal cases, states in pertinent part:

A person shall not be examined as a witness in the following cases:

1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent, as to events occurring during the marriage, nor can either, during the marriage or afterwards, without consent of the other, be examined as to any communication made by one to the other during the marriage.

Section 13-3620(G) states that the marital privilege "shall not pertain in any civil or criminal litigation or administrative proceeding in which a child's ... abuse ... is an issue."

¶ 11 Under § 13-3623(B), the offense of child abuse occurs, inter alia, when, "[u]nder circumstances other than those likely to produce death or serious physical injury to a child," a person "having the care or custody of a child ... permits a child ... to be placed in a situation where the person or health of the child ... is endangered." Section 13-3623(F)(1) states that, for purposes of that section, "[a]buse" of a child means "abuse as defined in § 8-201, except for those acts in the definition that are declared unlawful by another statute of this title." Finally, § 8-201 limits "abuse" to physical injury or serious emotional damage.

¶ 12 The issue of the meaning of the term "abuse" in § 13-3620(G), creating an exception to the marital privilege, is an issue of statutory interpretation that we review de novo. State v. Wilson, 200 Ariz. 390, ¶ 4, 26 P.3d 1161, ¶ 4 (App.2001). We interpret the marital privilege narrowly because it excludes relevant evidence and impedes the search for the truth. Blazek v. Superior Court, 177 Ariz. 535, 537, 869 P.2d 509, 511 (App.1994); see also State ex rel. Udall v. Superior Court, 183 Ariz. 462, 466, 904 P.2d 1286, 1290 (App.1995) (abrogation of privileges has "not been narrowly interpreted").

¶...