{ "id": 827415, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Samuel O. TELLES, Defendant-Appellant", "name_abbreviation": "State v. Telles", "decision_date": "1998-07-08", "docket_number": "No. 18091", "first_page": "593", "last_page": "598", "citations": [ { "type": "official", "cite": "126 N.M. 593" }, { "type": "parallel", "cite": "973 P.2d 845" }, { "type": "parallel", "cite": "1999-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": "1997-NMCA-080", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 142213 ], "weight": 3, "pin_cites": [ { "page": "\u00b637" } ], "opinion_index": 0, "case_paths": [ "/nm/123/0690-01" ] }, { "cite": "118 N.M. 586", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563576 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/nm/118/0586-01" ] }, { "cite": "118 N.M. 312", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563644 ], "weight": 5, "pin_cites": [ { "page": "317" }, { "page": "62" }, { "page": "317" }, { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0312-01" ] }, { "cite": "101 N.M. 12", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586361 ], "weight": 2, "pin_cites": [ { "page": "19-20" }, { "page": "632-33" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0012-01" ] }, { "cite": "112 N.M. 78", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720269 ], "weight": 2, "pin_cites": [ { "page": "80" }, { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0078-01" ] }, { "cite": "93 N.M. 307", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568824 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "309" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0307-01" ] }, { "cite": "116 N.M. 112", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727710 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "114" }, { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0112-01" ] }, { "cite": "1997-NMCA-113", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 18530 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0289-01" ] }, { "cite": "121 N.M. 507", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566525 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0507-01" ] }, { "cite": "1996-NMSC-012", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 8-18" } ], "opinion_index": 0 }, { "cite": "115 N.M. 372", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725421 ], "weight": 2, "pin_cites": [ { "page": "380" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0372-01" ] }, { "cite": "118 N.M. 762", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563621 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "770" }, { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0762-01" ] }, { "cite": "121 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566519 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "4", "parenthetical": "quoting State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994)" }, { "page": "234", "parenthetical": "quoting State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994)" }, { "page": "4" }, { "page": "234" }, { "page": "4" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0001-01" ] }, { "cite": "101 N.M. 146", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586429 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "147" }, { "page": "815" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0146-01" ] }, { "cite": "109 N.M. 21", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590309 ], "weight": 12, "year": 1989, "pin_cites": [ { "page": "24" }, { "page": "296" }, { "page": "24" }, { "page": "296" }, { "page": "24-25" }, { "page": "296-97" }, { "page": "25" }, { "page": "297" }, { "page": "25" }, { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0021-01" ] }, { "cite": "114 N.M. 283", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731655 ], "weight": 2, "pin_cites": [ { "page": "286" }, { "page": "1369" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0283-01" ] }, { "cite": "116 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727626 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "453", "parenthetical": "holding that plain error doctrine applies to evidentiary matters" }, { "page": "1074", "parenthetical": "holding that plain error doctrine applies to evidentiary matters" }, { "page": "453-54" }, { "page": "1074-75" }, { "page": "453-54" }, { "page": "1074-75" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0450-01" ] }, { "cite": "88 N.M. 233", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839071 ], "weight": 2, "pin_cites": [ { "page": "235" }, { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0233-01" ] }, { "cite": "104 N.M. 703", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1595004 ], "weight": 2, "pin_cites": [ { "page": "707" }, { "page": "861" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0703-01" ] }, { "cite": "1997-NMSC-047", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18717 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/124/0064-01" ] }, { "cite": "122 N.M. 554", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322276 ], "weight": 6, "opinion_index": 0, "case_paths": [ "/nm/122/0554-01" ] }, { "cite": "1996-NMCA-114", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 33" }, { "page": "\u00b6 33" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 806, "char_count": 16285, "ocr_confidence": 0.753, "pagerank": { "raw": 1.8309751633491596e-07, "percentile": 0.7207370004969401 }, "sha256": "bf1f4c2b0c97e4e2e6a02a6e6d868e18906b472c36d77a96a81944b0c1645745", "simhash": "1:85e2a4e01360c9f1", "word_count": 2552 }, "last_updated": "2023-07-14T18:24:14.526620+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "DONNELLY and BOSSON, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Samuel O. TELLES, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nAPODACA, Judge.\n{1} Defendant appeals his convictions and sentences after a jury trial. He was found guilty of homicide by vehicle (DWI) and great bodily injury by vehicle (DWI) in violation of NMSA 1978, \u00a7 66-8-101 (1991). He raises six issues on appeal: (1) comments by law enforcement officers on Defendant\u2019s post-arrest, post-Miranda, silence in response to the prosecutor\u2019s direct examination constituted reversible error, (2) the trial court erred by excluding testimony regarding the victims\u2019 blood alcohol level and drug use, (3) testimony regarding the victims\u2019 injuries was unfairly prejudicial and violated Defendant\u2019s substantive rights, (4) the trial court improperly sentenced Defendant, (5) defense counsel\u2019s failure to call a witness constituted ineffective assistance of counsel, and (6) these errors cumulatively deprived Defendant of substantial rights. Unpersuaded by Defendant\u2019s arguments, we affirm.\nI. FACTUAL AND PROCEDURAL BACKGROUND\n{2} One evening in February 1996, after leaving a bar, Defendant drove his vehicle home southbound on Highway 28, south of Las Cruces. Defendant testified that he wanted to pass the vehicle in front of him. To view oncoming traffic, Defendant stated that he would drive his car to the left, close to or slightly into the northbound lane. In doing so, Defendant collided with a motorcycle on which the driver and a passenger were riding. The collision killed the passenger and caused the driver to lose his leg. We incorporate additional facts in our discussion of the issues.\nII. DISCUSSION\nA. Prosecutorial Comment On Defendant\u2019s Right To Remain Silent\n{3} Defendant argues that the trial court committed reversible error because it failed to grant a mistrial when the prosecutor intentionally elicited impermissible comments on Defendant\u2019s right to remain silent from law enforcement witnesses. On direct examination, the prosecutor asked Deputy Pirtle the following questions concerning his investigation of the collision:\nProsecutor: When you were at the scene of the collision, did you approach [Defendant] as part of your investigation?\nDeputy Pirtle: Yes, I did.\nProsecutor: And when you approached him, did you notice anything about him?\nDeputy Pirtle: When I approached [Defendant], he was in the back of Deputy Mendez\u2019 police car. I opened the back door to speak with [Defendant]. As I opened the door the first thing I observed was the strong odor of an alcoholic beverage coming from within the back portion of the vehicle. [Defendant] looked up at me, I observed that he had bloodshot and watery eyes. I told [Defendant] why he was under arrest and [Defendant] didn\u2019t say anything to me.\nDefendant also complains of the prosecutor\u2019s questioning of Deputy Mendez:\nProsecutor: Were you present when [Defendant] was notified that [the passenger] had died?\nDeputy Mendez: Yes, I was.\nProsecutor: What was his reaction? Defense counsel: Objection, irrelevant. Trial court: Overruled.\nDeputy Mendez: When he was told about it, he had no reaction. He didn\u2019t say anything, he just went back to sleep.\n{4} Objections to prosecutorial comments on the right to remain silent are not necessary for appellate consideration of this issue. See State v. Carrasco, 1996-NMCA-114, \u00b6 33, 122 N.M. 554, 928 P.2d 939, aff'd, and rev\u2019d in part on other grounds, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075. Impermissible prosecutorial comment on the right of a defendant to remain silent generally will result in reversal of a defendant\u2019s conviction. See Carrasco, 1996\u2014NMCA-114, \u00b6 33, 122 N.M. 554, 928 P.2d 939.\n{5} The State argues that we should apply the abuse of discretion standard of review here because Defendant appeals from denial of his motion for a mistrial on this issue. See State v. Price, 104 N.M. 703, 707, 726 P.2d 857, 861 (Ct.App.1986). Defendant, however, does not posture his appeal in this manner. He asks this Court to determine whether the alleged prosecutorial comment constitutes plain error. See State v. Lara, 88 N.M. 233, 235, 539 P.2d 623, 625 (Ct.App.1975). Our evidentiary rule and case law supports Defendant\u2019s contention on the appropriate standard of review. See Rule 11-103(D) NMRA 1998 (\u201cNothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.\u201d); State v. Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993) (holding that plain error doctrine applies to evidentiary matters); State v. Hennessy, 114 N.M. 283, 286, 837 P.2d 1366, 1369 (Ct.App.1992) (holding that prosecutorial questioning concerns the presentation of evidence), overruled on other grounds by Lucero, 116 N.M. at 453-54, 863 P.2d at 1074-75.\n{6} In evaluating allegedly improper prosecutorial comments, we examine the manifest intent and character of the language. See State v. Isiah, 109 N.M. 21, 24, 781 P.2d 293, 296 (1989), overruled on other grounds by Lucero, 116 N.M. at 453-54, 863 P.2d at 1074-75. We determine whether the jury would naturally and necessarily understand it as a comment on Defendant\u2019s invocation of his right to remain silent. See Isiah, 109 N.M. at 24, 781 P.2d at 296. To deduce the manifest intention prompting the remarks, we consider the context of the statement and the natural and necessary impact on the jury. See id.\n{7} First, we evaluate the prosecutor\u2019s questioning of Deputy Pirtle on direct examination. The prosecutor asked Deputy Pirtle about various field sobriety tests administered in DWI cases. Then the prosecutor focused on Deputy Pirtle\u2019s investigation of the accident. She asked Deputy Pirtle what he noticed about Defendant at the scene of the collision. We hold that this question was not plain error.\n{8} In Isiah, 109 N.M. at 24-25, 781 P.2d at 296-97, our Supreme Court held that questions intended to determine the defendant\u2019s demeanor and mental state, in challenging an insanity defense, were not reversible error. The defendant\u2019s mental state and degree of culpability were at issue in Isiah. See id. Here, Defendant\u2019s intoxication was at issue. See \u00a7 66-8-101 (defining the offenses of homicide and great bodily injury by vehicle while driving under the influence of intoxicating liquor). The prosecutor\u2019s question sought to elicit indicators of Defendant's intoxication and was not a comment on Defendant\u2019s silence. See Carrasco, 1996\u2014 NMCA-114, \u00b6 37, 122 N.M. 554, 928 P.2d 939 (holding that questions concerning defendant\u2019s behavior and attitude following arrest were not a direct comment on his post-arrest right to remain silent).\n{9} Next we evaluate the prosecutor\u2019s direct examination of Deputy Mendez. The prosecutor questioned Deputy Mendez about his investigation of the accident, administration of sobriety tests to Defendant, arrest of Defendant, and Defendant\u2019s blood sample. Then she asked Deputy Mendez about Defendant\u2019s reaction to the motorcycle passenger\u2019s death. Deputy Mendez testified that Defendant had no reaction and went back to sleep. The State contends that this question concerned the influence of alcohol on Defendant and established a narrative of events.\n{10} We agree with the State that the inquiry concerning Defendant\u2019s reaction was not a prosecutorial comment on his silence. The.line of questioning sought to prove that Defendant was under the influence of alcohol. Officer Mendez testified about Defendant\u2019s impaired movements, the odor of alcohol, and Defendant\u2019s slurred and slow speech. Additionally, Officer Mendez testified concerning Defendant\u2019s admission of drunkenness, failure of the sobriety test, profanity, and blank stare. Somnolence is also an influence of alcohol. Consequently, we hold that this question did not constitute plain error.\n{11} Even if we were to assume arguendo that the comments complained of constituted a direct comment on Defendant\u2019s right to remain silent, the State presented overwhelming evidence against Defendant to the trial court. Prejudicial effect of the prosecutorial query concerning Defendant\u2019s reaction to the passenger\u2019s death would be minimal in comparison. See Isiah, 109 N.M. at 25, 781 P.2d at 297; see also State v. Molina, 101 N.M. 146, 147, 679 P.2d 814, 815 (1984). For these reasons, we do not believe that the question requires reversal. See Isiah, 109 N.M. at 25, 781 P.2d at 297.\nB. Exclusion Of Blood-Alcohol Evidence Of Driver And Passenger\n{12} Driver contends that the trial court abused its discretion by excluding evidence of the motorcycle driver\u2019s and passenger\u2019s blood alcohol. \u201c \u2018An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case.\u2019 \u201d State v. Woodward, 121 N.M. 1, 4, 908 P.2d 231, 234 (1995) (quoting State v. Apodaca, 118 N.M. 762, 770, 887 P.2d 756, 764 (1994)). We determine whether the trial court\u2019s ruling is clearly untenable or not justified by reason. See Woodward, 121 N.M. at 4, 908 P.2d at 234.\n{13} All relevant evidence is admissible, and irrelevant evidence is not admissible. See Rule 11-402 NMRA 1998. Relevant evidence is \u201cevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence .\u201d Rule 11-401 NMRA 1998.\n{14} The motorcycle driver had a .05 blood alcohol concentration. At trial, an expert testified that there was no observable impairment to perhaps a slight and moderate judgment risk at this level. Additionally, there would be no lag in reaction time nor any effect on perception or memory. The trial court excluded evidence concerning the driver\u2019s alcohol consumption because \u201cit would not be relevant to any issue in this matter.\u201d We agree and hold that the trial court did not abuse its discretion in excluding evidence of the driver\u2019s blood alcohol level.\n{15} Apparently, the trial court did not rule on the admissibility of the passenger\u2019s blood alcohol concentration. The State filed a motion in limine to exclude this evidence. At the motion hearing, the trial court stated it would hear evidence concerning the matter outside the presence of the jury to determine relevancy. At trial, however, defense counsel did not seek to admit evidence concerning the passenger\u2019s blood alcohol. Consequently, Defendant did not preserve this issue for review because he did not invoke a ruling by the trial court. See Rule 12-216(A) NMRA 1998; State v. Pennington, 115 N.M. 372, 380, 851 P.2d 494, 502 (Ct.App.1993) (holding that defendant waived claim by never requesting a further evidentiary hearing).\n{16} Even if Defendant had preserved the issue of the passenger\u2019s blood alcohol concentration, we would affirm the trial court\u2019s ruling declaring its inadmissibility. See Rule 11-402 (providing that irrelevant evidence is not admissible). The State prosecuted Defendant for homicide by vehicle (DWI) and great bodily injury by vehicle (DWI). The passenger\u2019s blood alcohol level did not bear on any fact of consequence to the determination of these charges. See \u00a7 66-8-101 (defining the crimes of homicide by vehicle (DWI) and great bodily injury by vehicle (DWI)); Rule 11-401 (defining relevant evidence).\n{17} In arguing the relevancy of the motorcycle driver\u2019s and passenger\u2019s blood alcohol, Defendant relies on Buffett v. Vargas, 1996-NMSC-012, \u00b6\u00b6 8-18, 121 N.M. 507, 914 P.2d 1004 (holding that trial court did not err in admitting blood-alcohol evidence of driver and passenger). We distinguish Buffett from this case because Buffett was a civil ease involving comparative negligence. The criminal charges against Defendant did not involve concepts of comparative negligence. See \u00a7 66-8-101.\nC. Admission Of Testimony Regarding Injuries\n{18} Defendant challenges the trial court\u2019s admission of testimony concerning the victims\u2019 injuries. The standard of review for this issue is also abuse of discretion. See Woodward, 121 N.M. at 4, 908 P.2d at 234.\n{19} Defendant argues this evidence was irrelevant because there was no dispute concerning the \u201cnecessary element of great bodily harm or death caused by the accident.\u201d See Rules 11^101, -402. Defendant stipulated that the driver sustained great bodily harm. The State, however, still had to prove that * Defendant caused the driver\u2019s great bodily injury and the passenger\u2019s death by the unlawful operation of a motor vehicle. See \u00a7 66-8-101. The testimony was relevant to these issues. See Rule 11-401.\n{20} Defendant also contends that the prejudicial effect of the testimony outweighed its probativeness. We disagree. The testimony presented evidence of the driver\u2019s and the passenger\u2019s injuries and indicated that the passenger\u2019s injuries eventually caused her death. Consequently, we hold that the trial court did not abuse its discretion in admitting this testimony.\nD. Defendant\u2019s Sentence\n{21} Defendant argues that the trial court improperly enhanced his sentence based on two prior convictions for driving under the influence of intoxicating liquor (DWI). See \u00a7 66-8-101(D). We review de novo this question of law concerning statutory construction. See State v. Cleve, 1997-NMCA-113, \u00b6 5, 124 N.M. 289, 949 P.2d 672.\n{22} Pursuant to Section 66-8-101(D), the trial court enhanced Defendant\u2019s sentence by four years on both convictions. According to Defendant, the commission of each prior DWI used for enhancement must occur after the conviction of the preceding DWI. See Koonsman v. State, 116 N.M. 112, 114, 860 P.2d 754, 756 (1993). The cases Defendant relies on, however, concern habitual offender sentencing and not Section 66-8-101. See id.; State v. Linam, 93 N.M. 307, 309, 600 P.2d 253, 255 (1979).\n{23} The plain meaning of Section 66-8-101, we believe, does not evince a legislative intent to adopt the crime-conviction, crime-conviction sequence for its enhancement purposes. See State v. Riddall, 112 N.M. 78, 80, 811 P.2d 576, 578 (Ct.App.1991) (holding that in statutory interpretation, the appellate court should give the legislative wording its plain meaning).\n{24} Defendant additionally argues that his current convictions arose out of a single act. Consequently, he asserts the separate enhancement and the consecutive terms for each count are double jeopardy. Our Court has previously rejected Defendant\u2019s argument. See State v. Harris, 101 N.M. 12, 19-20, 677 P.2d 625, 632-33 (Ct.App.1984). As a result, we affirm Defendant\u2019s sentence.\nE. Assistance Of Counsel\n{25} Defendant asserts that his trial counsel was ineffective because of counsel\u2019s failure to investigate and call a specific known witness. Defendant did not raise this issue below and cites to matters outside of the record. This Court cannot evaluate matters outside of the record. See State v. Rickard, 118 N.M. 312, 317, 881 P.2d 57, 62 (Ct.App.), aff'd and rev\u2019d on other grounds, 118 N.M. 586, 884 P.2d 477 (1994). Without a record, we cannot consider Defendant\u2019s claim of ineffective assistance of counsel on direct appeal. See Rickard, 118 N.M. at 317, 881 P.2d at 62. Defendant\u2019s proper avenue of relief is a post-conviction proceeding that can develop a proper record. See id.\nF. Cumulative Error\n{26} Because we have found no error, there is no cumulative error. See State v. Armijo, 1997-NMCA-080, \u00b637, 123 N.M. 690, 944 P.2d 919.\nIII. CONCLUSION\n{27} We conclude that there was no prosecutorial comment on Defendant\u2019s right to remain silent and that the trial court did not abuse its discretion in excluding evidence of the motorcycle driver\u2019s and the passenger\u2019s blood alcohol concentrations. We also hold that the admission of testimony concerning the driver\u2019s and passenger\u2019s injuries was not an abuse of discretion and that the trial court lawfully sentenced Defendant. Finally, we determine that Defendant\u2019s claim for ineffective assistance of counsel is not properly before this Court and that there was no cumulative error. We therefore affirm Defendant\u2019s convictions and sentences.\n{28} IT IS SO ORDERED.\nDONNELLY and BOSSON, JJ., concur.", "type": "majority", "author": "APODACA, Judge." } ], "attorneys": [ "Tom Udall, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, for Appellee.", "Adam G. Kurtz, Albuquerque, for Appellant." ], "corrections": "", "head_matter": "1999-NMCA-013\n973 P.2d 845\nSTATE of New Mexico, Plaintiff-Appellee, v. Samuel O. TELLES, Defendant-Appellant.\nNo. 18091.\nCourt of Appeals of New Mexico.\nJuly 8, 1998.\nTom Udall, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, for Appellee.\nAdam G. Kurtz, Albuquerque, for Appellant." }, "file_name": "0593-01", "first_page_order": 631, "last_page_order": 636 }