{ "id": 4077542, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. EDWARD ARMIJO, Defendant-Appellant", "name_abbreviation": "State v. Armijo", "decision_date": "2013-12-20", "docket_number": "No. 34,400; Docket No. 32,139", "first_page": "360", "last_page": "366", "citations": [ { "type": "official", "cite": "2014-NMCA-013" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2007-NMCA-077", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 3692313 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 32-34" } ], "opinion_index": 0, "case_paths": [ "/nm/142/0032-01" ] }, { "cite": "2009-NMSC-055", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4244893 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/147/0386-01" ] }, { "cite": "92 N.M. 456", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557177 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0456-01" ] }, { "cite": "1979-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 26" } ], "opinion_index": 0 }, { "cite": "93 N.M. 289", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568772 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0289-01" ] }, { "cite": "1979-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0 }, { "cite": "96 N.M. 415", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1577428 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/96/0415-01" ] }, { "cite": "1981-NMCA-019", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 18" } ], "opinion_index": 0 }, { "cite": "2009-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243179 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/146/0357-01" ] }, { "cite": "103 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711409 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0282-01" ] }, { "cite": "1985-NMSC-077", "category": "reporters:neutral", "reporter": "NMSC", "weight": 3, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 8" } ], "opinion_index": 0 }, { "cite": "2003-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15501 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/133/0717-01" ] }, { "cite": "275 P.3d 110", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188256 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 36" }, { "page": "\u00b6 40" }, { "page": "\u00b6 43" }, { "parenthetical": "instructing appellate courts to consider \"what role [the error] may have played in the trial proceedings\"" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0535-01" ] }, { "cite": "2000-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1217118 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 39" }, { "page": "\u00b6 39" } ], "opinion_index": 0, "case_paths": [ "/nm/129/0556-01" ] }, { "cite": "109 N.M. 263", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590342 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0263-01" ] }, { "cite": "1989-NMCA-086", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0 }, { "cite": "116 N.M. 156", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727672 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/116/0156-01" ] }, { "cite": "1993-NMSC-047", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 41-54" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 884, "char_count": 19257, "ocr_confidence": 0.76, "pagerank": { "raw": 5.163086915398848e-08, "percentile": 0.3249307198991138 }, "sha256": "8cb1e7cf77a18bb3ed105c8efc9a0f0223c9d4c1ac85f7fc33a45db4ae63fb0c", "simhash": "1:fc7938648bc957f2", "word_count": 3042 }, "last_updated": "2023-07-14T21:28:15.201030+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CYNTHIA A. FRY, Judge", "M. MONICA ZAMORA, Judge", "J. MILES HANISEE, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. EDWARD ARMIJO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nFRY, Judge.\n{1} Defendant Edward Armijo appeals his first-offense conviction for driving under the influence ofintoxicating liquor (DWI) entered by the metropolitan court and subsequently affirmed by the district court following on-record review. In this appeal, Defendant asserts four theories of trial error, including error in jury selection, in the admission of hearsay, in the admission of improper opinion testimony, and cumulative error. Having reviewed the metropolitan court proceedings, we agree that \u2014 in the specific context of this case \u2014 there is a reasonable probability that the jury\u2019s verdict may have been induced by the unqualified opinion testimony of a witness for the State. We therefore reverse on that basis. Because the remaining issues are unlikely to recur on remand, we express no opinion on the other errors claimed by Defendant.\nBACKGROUND\n{2} Defendant was tried pursuant to a criminal complaint charging him with DWI, speeding, and failure to maintain a traffic lane. Because the jury acquitted him of failing to maintain a traffic lane and Defendant does not appeal his conviction for speeding, only the conviction for DWI is at issue in this appeal. With regard to that charge, the State\u2019s evidence at trial consisted of the results of a breath alcohol test and the testimony of two police officers. The State\u2019s first witness, Officer Eric Hammon, testified that he used radar to determine that Defendant was driving forty-five miles per hour on a road with a posted speed limit of thirty-five miles per hour. Officer Hammon also saw Defendant\u2019s car drift to the right within his lane so that the passenger-side tires of his car touched the right-hand lane line. Officer Hammon pulled Defendant over for speeding and failure to maintain his lane. Officer Hammon testified that when he approached the car, Defendant was behind the wheel, there were two passengers in the car, and he \u201ccould smell the distinct odor of an alcoholic beverage emitting from him.\u201d Officer Hammon also testified that Defendant\u2019s eyes were \u201cbloodshot and watery,\u201d that he \u201ccould detect some slurring of his speech,\u201d and that Defendant reported having had \u201cone beer earlier in the evening.\u201d\n{3} Officer Hammon called for a DWI unit to continue the investigation. Officer Marisa Martinez arrived ten minutes later to conduct a DWI investigation. Officer Martinez was the State\u2019s second witness. She testified that Defendant\u2019s eyes were bloodshot and watery, that she noticed an odor of alcohol, and that the Defendant told her he had a beer ten minutes before he was pulled over. Officer Martinez then administered three field sobriety tests: a horizontal gaze nystagmus test, a walk-and-turn test, and a one-leg-stand test. Defendant performed the horizontal gaze nystagmus test as instructed. The walk-and-turn test required Defendant to walk in a straight line for nine steps with his hands at his sides while touching heel-to-toe, to turn around, and to walk back in a similar fashion. In performing that test, Defendant missed touching his heel to his toes twice, did not turn in the way Officer Martinez instructed, and once raised his arms from his sides. The one-leg-stand test required Defendant to raise one foot six inches off the ground and maintain that pose while counting out loud for thirty seconds. Officer Martinez testified that, while doing so, Defendant \u201cwas swaying while balancing and he raised his arms for balance.\u201d\n{4} Officer Martinez determined that Defendant \u201cwas showing the signs of impairment,\u201d handcuffed him, and took him to the transport center to test his breath alcohol content. Officer Martinez tested two breath samples and the breath card showing the test results was admitted into evidence at trial. That card showed Defendant\u2019s breath scores for the two samples to be .06 and .05 grams per 210 liters of breath. At the close of Officer Martinez\u2019s direct examination, the State asked her whether .06 and .05 are \u201ca particularly high breath score,\u201d before rephrasing the question to, \u201cis that breath score over the legal limit?\u201d Defendant\u2019s objection to that question was sustained, and the State passed the witness to the defense.\n{5} Defendant then cross-examined Officer Martinez and the State conducted a re-direct examination. At the end of that re-direct examination, the State returned to the topic of Defendant\u2019s breath alcohol content, asking with regard to his breath scores of .06 and .05, \u201cwhat does that indicate to you?\u201d Defendant\u2019s objection to that question was sustained, and the State asked \u201cis a .06/.05 consistent with [Djefendant\u2019s admission of one beer?\u201d Officer Martinez answered \u201cno, sir,\u201d and the State followed up with the question \u201cis a .06/.05 consistent with more than one beer?\u201d Defendant objected again, the objection was again sustained, and the court instructed the jury \u201cyou are to disregard the line of questioning.\u201d\n{6} When the State then rested, Defendant moved for a directed verdict on all charges, which was denied except as to driving with a blood or breath alcohol content of .08 or more. See NMSA 1978, \u00a7 66-8-102(C)(1) (2008)(definingperieDWI). Defendant then rested. The jury ultimately returned its verdict acquitting Defendant of failure to maintain a traffic lane and convicting on the charges of speeding and driving under the influence. Defendant appealed to the district court, which affirmed, and this appeal follows.\nDISCUSSION\n{7} Defendant argues that Officer Martinez\u2019s assessment of his breath alcohol content results was \u201cunqualified opinion testimony\u201d that constituted \u201cincurable error.\u201d Defendant is correct that Officer Martinez\u2019s opinion regarding the amount of alcohol he must have consumed in order to produce breath scores of .06/.05 was inadmissible. The State\u2019s questions regarding whether those scores suggested that Defendant had consumed \u201cone beer\u201d or \u201cmore than one beer\u201d sought opinion testimony for which no foundation was laid at trial. See Rule 11-703 NMRA (providing foundation requirements for expert testimony in the form of an opinion). Without such a foundation, the witness was not qualified to offer her opinion on the matter. See State v. Alberico, 1993-NMSC-047, \u00b6\u00b6 41-54, 116 N.M. 156, 861 P.2d 192.\n{8} In response, the State asserts that the testimony at issue amounts to no more than harmless error, specifically relying upon the metropolitan court\u2019s admonishment to the jury that it should \u201cdisregard this line of questioning.\u201d Notably, the State neither argues that the questions asked were proper nor suggests how any answers Officer Martinez gave to those questions could possibly have been admissible. Instead, the State claims that \u201c[t]he trial judge\u2019s immediate curative instruction remedied the prosecution\u2019s isolated improper question and Officer Martinez\u2019s answer.\u201d\n{9} It is true that, \u201c[gjenerally, a prompt admonition from the court to the [jjury to disregard and not consider inadmissible evidence sufficiently cures any prejudicial effect which might otherwise result.\u201d State v. Newman, 1989-NMCA-086, \u00b6 19, 109 N.M. 263, 784 P.2d 1006 (emphasis added). However, where \u201cinadmissible testimony [is] intentionally elicited by the prosecution,\u201d the general rule does not apply and, \u201cregardless of whether a trial court admonishes the jury not to consider the testimony, [appellate courts] must determine whether there is a reasonable probability that the improperly admitted evidence could have induced the jury\u2019s verdict.\u201d State v. Gonzales, 2000-NMSC-028, \u00b6 39, 129 N.M. 556, 11 P.3d 131 overruled on other grounds by State v. Tollardo, 2012-NMSC-008, \u00b6 37 n.6, 275 P.3d 110; accord State v. Ruiz, 2003-NMCA-069, \u00b6 6, 133 N.M. 717, 68 P.3d 957; see also State v. Saavedra, 1985-NMSC-077, \u00b6 13, 103 N.M. 282, 705 P.2d 1133 (holding that admonitory instruction could cure intentionally elicited testimony only in the absence of a reasonable probability that inadmissible evidence induced the verdict), abrogated on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783; cf. State v. Bartlett, 1981-NMCA-019, \u00b6 18, 96 N.M. 415, 631 P.2d 321 (finding prosecutor\u2019s facially improper question to be \u201cprejudicial error and no attempt to admonish the jury to forget the question could possibly erase the effects\u201d).\n{10} Thus, before determining that a curative instruction has pured what would otherwise be error, we must consider whether the offending testimony was unsolicited or was, instead, elicited by the State. In State v. Vialpando, the trial court\u2019s offer to give an admonitory instruction to the jury was deemed to have cured the improper testimony of a witness who was asked when he had first met the defendant and who responded, \u201cwhen he was in the State Penitentiary.\u201d 1979-NMCA-083, \u00b6 21, 93 N.M. 289, 599 P.2d 1086. On appeal, this Court acknowledged that such testimony would require a mistrial if \u201cdeliberately induced through questioning by the prosecutor who intended that the objectionable response be made by the witness.\u201d Id. \u00b623. In that case, however, \u201cthe witness\u2019s response was totally unexpected by the court and the attorneys.\u201d Id. As a result, the error was curable by way of instruction, and not so prejudicial as to require a new trial. Id. \u00b6 25. In so holding, this Court was \u201cespecially mindful of the lack of any improper motive preceding the witness\u2019s unprompted utterance.\u201d Id. \u00b6 27.\n{11} In contrast, similar testimony was considered sufficiently prejudicial to require a new trial in Saavedra. In that .case, a witness who was asked how long he had known the defendant responded \u201c[s]ince he got out of the penitentiary.\u201d 1985-NMSC-077, \u00b6 8. On appeal, our Supreme Court noted that the prosecutor had asked an identical question of the same witness at a grand jury hearing and received \u201can almost identical answer.\u201d Id. \u00b6 9. Thus, the Court noted that \u2014 unlike in Vialpando \u2014 a \u201clack of improper motive\u201d could not be presumed in Saavedra, and the Court conducted a review for harmless error, ultimately concluding that a new trial was required. ' 1985-NMSC-077, \u2022 \u00b6 12. This requirement that appellate courts review for prejudice, notwithstanding a curative instruction, rests upon the sound policy that the prosecution should not be permitted to rely upon a trial court\u2019s curative instruction to remove the taint of incompetent evidence that it has intentionally placed before a jury. As has often been noted in similar circumstances:\nWhen the error is exposed on appeal, it is met by the stereotyped argument that it is not apparent it in any wise influenced the minds of the jury. The reply the law makes to such suggestion is: that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmlessf.]\nState v. Frank, 1979-NMSC-012, \u00b6 26, 92 N.M. 456, 589 P.2d 1047 (internal quotation marks and citation omitted).\n{12} In this case, the State drew repeated objections to questions intended to elicit Officer Martinez\u2019s unqualified and inadmissible opinion regarding the significance of Defendant\u2019s breath scores of .06/.05. On appeal, the State makes no attempt to justify the questions and, having reviewed the proceedings below, we can identify no proper purpose for those questions. Thus, the question of whether Defendant was prejudiced by Officer Martinez\u2019s improper testimony cannot be answered simply by relying upon the metropolitan court\u2019s curative instruction; instead, we must actually determine \u2014 in the particular context of this case \u2014 whether that inadmissible testimony was prejudicial or harmless.\n{13} For purposes of harmless error review, violations of the rules of evidence are non-constitutional error. State v. Marquez, 2009-NMSC-055, \u00b6 20, 147 N.M. 386, 223 P.3d 931. Thus, the error at issue in this case can be deemed harmless only if \u201cthere is no reasonable probability the error affected the verdict.\u201d Tollardo, 2012-NMSC-008, \u00b6 36 (emphasis, internal quotation marks, and citation omitted). As recently explained by our Supreme Court, \u201charmless error review necessarily requires a case-by-case analysis . . . [of] whether the guilty verdict actually rendered in this trial was surely unattributable to the error.\u201d Id. \u00b6 44 (internal quotation marks and citation omitted). In determining whether the impermissible evidence contributed to Defendant\u2019s conviction, we must \u201cevaluate all of the circumstances surrounding the error.\u201d Id. \u00b6 43. Those circumstances include \u201cthe error itself . . . including] an examination of the source of the error and the emphasis placed upon the error,\u201d as well as the properly admitted evidence, at least to the extent such evidence provides \u201ccontext for understanding how the error arose and what role it may have played in the trial proceedings.\u201d Id.\n{14} Because there was no dispute that Defendant was driving a car, the only contested fact for the jury to decide with regard to the conviction here appealed was whether he was impaired by alcohol while doing so. As the jury was instructed at trial, it was to determine whether \u201cas a result of drinking liquor the defendant was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the person and the public.\u201d See UJI 14-4501 NMRA. The State\u2019s evidence relevant to such a finding consisted of the breath alcohol content test results as well as the officers\u2019 testimony regarding speeding, bloodshot eyes, slurred speech, the odor of alcohol, and Defendant\u2019s performance on the field sobriety tests.\n{15} On appeal, Defendant points out that much of the evidence typically introduced in a DWI case was not present in this case. For instance, when Officer Hammon pulled him over for speeding, Defendant promptly and properly stopped his car. He was' also cooperative and behaved appropriately throughout his encounters with both Officer Hammon and Officer Martinez. He displayed no signs of impairment while getting out of his car and walking with Officer Martinez to the area in which she conducted the field sobriety tests. Defendant also points out that once Officer Martinez began the field sobriety tests, he performed the horizontal gaze nystagmus test as instructed and performed the other tests with only minor errors. And, finally, he agreed to submit to a chemical test that established his breath alcohol content at only a .06/.05.\n{16} Taken as a whole, the evidence introduced at trial was the type of evidence that is generally sufficient to support a conviction under the \u201cimpaired to the slightest degree\u201d standard. See, e.g., State v. Soto, 2007-NMCA-077, \u00b6\u00b6 32-34, 142 N.M. 32, 162 P.3d 187 (collecting cases). Our task in this appeal, however, is not to determine whether the evidence was sufficient to support aconviction. See Tollardo, 2012-NMSC-008, \u00b6 40 (noting \u201c[t]here are some circumstances where . . . the evidence of a defendant\u2019s guilt is sufficient even in the absence of the [district] court\u2019s error, that still require the reviewing court to reverse the conviction if the jury\u2019s verdict appears to have been tainted by error (internal quotation marks and citation omitted)). Instead, we must determine whether there is a reasonable probability that Officer Martinez\u2019s unqualified opinion testimony \u201ccould have induced the jury\u2019s verdict.\u201d Gonzales, 2000-NMSC-028, \u00b6 39. Keeping that task in mind, we note that the admissible evidence in this case could have supported either a conviction or an acquittal, since a reasonable jury could have returned either verdict. As a result, it is possible that the actual verdict rendered in this case was a result of the jury\u2019s consideration of Officer Martinez\u2019s improper testimony.\n{17} Tollardo also directs us to consider \u201cthe importance of the erroneously admitted evidence in the prosecution\u2019s case as well as whether the error was cumulative or instead introduced new facts.\u201d 2012-NMSC-008, \u00b6 43 (alterations, internal quotation marks, and citation omitted). In this regard, we note that \u2014 apart from the State\u2019s attempts to elicit Officer Martinez\u2019s opinion \u2014 no evidence was introduced at trial to establish whether, how, or to what extent a .06 or .05 breath alcohol content is indicative of impairment. Thus, Offi\u00f3er Martinez\u2019s imqualified opinion that Defendant would not have had breath alcohol contents of .06 and .05 if he had only consumed one beer \u2014 if accepted by the jurors \u2014 may have provided them with their only means of assessing the breath scores. Officer Martinez\u2019s impermissible testimony clearly suggested to the jury that Defendant must have consumed more than the one beer he admitted to drinking prior to the traffic stop. Further, because jurors may be unfamiliar with breath alcohol contents and this jury was given no guidance on that topic, these jurors may have used Officer Martinez\u2019s testimony suggesting that Defendant consumed more than one beer as their primary means of determining whether his breath scores indicated that he was impaired at the time he was pulled over. If they did so, the inadmissible testimony may have played a decisive role in the trial proceedings. See id. (instructing appellate courts to consider \u201cwhat role [the error] may have played in the trial proceedings\u201d). And, under the circumstances of this case, there is no sense in which Officer Martinez\u2019s improper testimony could be considered cumulative.\n{18} Finally, OfficerMartinez\u2019s improper testimony in this case, like the improper material in Tollardo, \u201cwas the last piece of information that the jury received before formal instructions and closing arguments, magnifying the risk that the error would factor into the jury\u2019s assessment of [the defendant's guilt.\u201d Id. \u00b6 52. Our review of the trial proceedings in this case leaves us convinced that there is a reasonable probability that the jury\u2019s verdict was the product of inadmissible testimony. The State\u2019s final line of questions for Officer Martinez \u2014 both on direct examination and on re-direct \u2014 sought her unqualified opinion regarding the meaning and significance of Defendant\u2019s breath alcohol content. Given the fact that no other evidence was available to guide the jury in assessing that breath alcohol content, particularly when considered with the ambiguity of the properly-admitted evidence, it is apparent that the verdict in this case may have been induced by Officer Martinez\u2019s improperly elicited testimony. Having reviewed \u201call of the circumstances surrounding the error,\u201d id. \u00b6 43, we conclude that the error at issue is prejudicial enough to require a new trial.\n{19} IT IS SO ORDERED.\nCYNTHIA A. FRY, Judge\nWE CONCUR:\nM. MONICA ZAMORA, Judge\nJ. MILES HANISEE, Judge", "type": "majority", "author": "FRY, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Santa Fe, NM Ralph E. Trujillo, Assistant Attorney General Albuquerque, NM for Appellee", "Bennett J. Baur, Acting Chief Public Defender Vicki W. Zelle, Assistant Appellate Defender Albuquerque, NM for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, December 20, 2013,\nNo. 34,400\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMCA-013\nFiling Date: October 8, 2013\nDocket No. 32,139\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. EDWARD ARMIJO, Defendant-Appellant.\nGary K. King, Attorney General Santa Fe, NM Ralph E. Trujillo, Assistant Attorney General Albuquerque, NM for Appellee\nBennett J. Baur, Acting Chief Public Defender Vicki W. Zelle, Assistant Appellate Defender Albuquerque, NM for Appellant" }, "file_name": "0360-01", "first_page_order": 376, "last_page_order": 382 }