State v. Marquez

• Decision Date: 28 July 2008
• Docket Number: No. 27,735.,27,735.
• Citation: 193 P.3d 578,2008 NMCA 133
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Reyes MARQUEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

193 P.3d 578

2008 NMCA 133

STATE of New Mexico, Plaintiff-Appellee, v. Reyes MARQUEZ, Defendant-Appellant.

No. 27,735.

Court of Appeals of New Mexico.

July 28, 2008.

Certiorari Granted, No. 31,294, September 22, 2008.

Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.

John Bigelow, Chief Public Defender, Adrianne R. Turner, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} Defendant appeals his conviction for driving while intoxicated (DWI). He contends that the trial court erred when it determined that Defendant's appearance for trial dressed in his military uniform was an exceptional circumstance that allowed the court to extend the time that the State had to bring Defendant to trial. He also challenges the sufficiency of the evidence supporting his conviction. Finally, he contends that the court admitted testimony regarding the significance of the horizontal gaze nystagmus (HGN) test as it relates to blood alcohol content (BAC) without the proper foundation. We affirm.

BACKGROUND

{2} Officer Benjamin Kirby (Kirby) was on duty at the door to a night club in Albuquerque, New Mexico, when he saw Defendant leaving. Defendant appeared to be staggering. Kirby cautioned Defendant not to drive, but Defendant ignored the officer's advice and got into a red pickup truck in the parking lot outside the bar. Kirby then saw Defendant's red pickup back out of its parking spot at the same time that a white truck pulled into the lot. The white truck accelerated as if trying to avoid a collision, while the red truck "stabbed" its brakes and then continued in reverse approximately sixty feet into traffic on Montgomery Boulevard. Kirby radioed a police dispatcher to report what he had seen.

{3} Officer Kelly Enyart (Enyart) responded to Kirby's request for an officer to stop the red truck. Enyart saw Defendant backing out onto the boulevard in front of her. Enyart activated her emergency lights, but Defendant did not immediately stop. Instead, he lurched forward and accelerated back into the parking lot. When she pulled Defendant over, Enyart smelled alcohol, observed Defendant's bloodshot, watery eyes, and noticed that his speech was slurred. When Enyart asked for Defendant's driver's license, registration, and proof of insurance, Defendant had trouble complying because he had "fumbling fingers." Defendant acknowledged having consumed two alcoholic drinks. When getting out of the truck, he was slow to respond and had his hand on the side of the vehicle for balance.

{4} Enyart asked Defendant to perform field sobriety tests (FSTs). Defendant asked Enyart if he could perform the tests in a place other than the parking lot, and she allowed him to do so. Enyart ensured that Defendant's preferred location was level and well lit, that the asphalt surface was free of debris, and that it was not wet or slippery. Enyart asked Defendant whether he had any problems walking or balancing and whether he had any problems that might prevent him from performing tests requiring walking or balancing, and he said he did not.

{5} Defendant had a hard time understanding Enyart's instructions, and Enyart had to explain and demonstrate the tests several times. During the HGN test, Defendant was unable to follow the officer's instructions and swayed noticeably backward and forward. During the walk and turn test, Defendant had to be instructed three times, and Enyart observed five of the eight clues. Defendant blamed his walking and balancing problems on having been in Iraq, but he could not say that he had been injured or exposed to anything that would cause such problems. Defendant was also unsuccessful in performing the one leg stand test, failing on three of four clues. Enyart then arrested Defendant for DWI. Defendant became upset and uncooperative and began using profanity. He initially agreed to take a breath alcohol test, but then refused. He was advised of the legal consequences of refusing to take the test, but he refused two more times.

{6} Defendant was charged with aggravated driving under the influence of intoxicating liquor, contrary to NMSA 1978, § 66-8-102 (2005) (amended 2007). He was arraigned on July 20, 2005. Following several delays, the case was set for trial on January 13, 2006. Both parties announced that they were ready for trial, and a jury panel was standing by. The judge then made the observation on the record that Defendant was wearing a camouflage military uniform in the courtroom. The State objected on the ground that Defendant's being in uniform was prejudicial. Defense counsel said that he told Defendant not to wear his uniform to court, but that Defendant was a member of the New Mexico National Guard and that his supervisor had instructed him to wear it.

{7} The court instructed Defendant not to wear the uniform at trial. However, Defendant did not have any other clothes with him, and he told the court, in a manner suggesting that he would not be able to be back on time, that he would have to return to his home in order to change. Defendant asked how much time the court would allow him to get a change of clothes. The court remarked that it was a Friday, a jury needed to be picked, and it would not allow for the delay required for Defendant to get new clothes and return for trial the same day. Taking into consideration the court's busy docket, that it was already after 10:00 a.m., and the time it would take for Defendant to get new clothes, the court believed that there was inadequate time to get the case to a jury the same day. The court ordered the case reset, held that the delay was due to Defendant's attire, deemed the situation an "exceptional circumstance," and ordered a 30-day extension of the 182-day rule. The court ordered Defendant to wear civilian clothing to the next trial setting.

{8} Trial was held on February 14, 2006. During her testimony, Enyart stated that the National Highway Traffic Safety Administration (NHTSA) conducted studies that established a correlation between the clues on FSTs and a person's blood or breath alcohol concentration. She testified that, according to the NHTSA, if two or more clues are observed during the walk and turn test, there is a 68% likelihood that the person's alcohol level is at or above New Mexico's legal limit of 0.08 percent. Moreover, if two or more clues are observed on the one leg stand test, there is a 65% chance that the person's alcohol concentration meets or exceeds 0.08 percent. The State then asked: "What if you put all three of the tests together?" Over Defendant's objection, Enyart testified that based on the clues of all three field sobriety tests, including the HGN test, the probability that a person's breath score was over the legal limit was in the ninetieth percentile. Defendant was convicted of DWI, and the district court affirmed his conviction in a lengthy memorandum opinion. We also affirm.

DISCUSSION

The 182-Day Rule

{9} In metropolitan court, the 182-day rule provides that "[t]he trial of a criminal citation or complaint shall be commenced within one hundred eighty-two (182) days after whichever of the following events occurs latest: (1) the date of arraignment or the filing of a waiver of arraignment of the defendant." Rule 7-506(B) NMRA. "The purpose of the 182-day rule ... is to encourage the prompt and orderly disposition of criminal cases, not to effectuate dismissals." State v. Maestas, 2007-NMCA-155, ¶ 8, 143 N.M. 104, 173 P.3d 26 (internal quotation marks and citation omitted). Accordingly, the rule includes a mechanism that allows the court to extend the time for commencing trial "upon a determination ... that exceptional circumstances exist that were beyond the control of the state or the court that prevented the case from being heard within the time period, provided that the aggregate of all extensions granted pursuant to this subparagraph may not exceed thirty (30) days." Rule 7-506(C)(5). The committee commentary accompanying the rule explains: "`Exceptional circumstances', as used in this rule, would include conditions which are unusual or extraordinary such as: death or illness of the judge, prosecutor, or a defense attorney immediately preceding the commencement of the trial; and circumstances which ordinary experience or prudence would not foresee, anticipate or provide for." Rule 7-506 committee commentary.

{10} Defendant argues that the metropolitan court erred in finding on January 13, 2006, that exceptional circumstances required an extension of trial until February 14, 2006. Application of Rule 7-506 to the facts of this case is a question of law that we review de novo. Maestas, 2007-NMCA-155, ¶ 9, 143 N.M. 104, 173 P.3d 26. However, the underlying facts, such as which party was responsible for the delay, were for the metropolitan court to decide in the first instance, and we review those findings for substantial evidence. See id.; State v. Hand, 2008-NMSC-014, ¶ 6, 143 N.M. 530, 178 P.3d 165 (explaining that where appellate court reviews application of law to facts, trial court's factual findings are reviewed for substantial evidence, and appellate court indulges all reasonable inferences in support of the trial court's decision). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Salgado, 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (internal quotation marks and citations omitted).

{11} Defendant contends that appearing for trial in a camouflage military uniform against his own counsel's instructions was not exceptional, but was only a "routine" choice of attire. He argues that any prejudice caused by his clothing choice could have been accommodated through voir dire and curative instructions to the jury. We disagree. We share the metropolitan court's concerns that Defendant's appearance in front of the jury in a military...