{ "id": 257716, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Adam PAIZ, Defendant-Appellant", "name_abbreviation": "State v. Paiz", "decision_date": "1999-07-06", "docket_number": "No. 19,491", "first_page": "776", "last_page": "785", "citations": [ { "type": "official", "cite": "127 N.M. 776" }, { "type": "parallel", "cite": "987 P.2d 1163" }, { "type": "parallel", "cite": "1999-NMCA-104" } ], "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": "116 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 727626 ], "weight": 9, "year": 1993, "pin_cites": [ { "page": "453" }, { "page": "1074" }, { "page": "453" }, { "page": "1074", "parenthetical": "clarifying that plain error applies to evidentiary matters which were not brought to the attention of the trial judge, and not just evidentiary rulings" }, { "page": "453" }, { "page": "1074" }, { "page": "453" }, { "page": "1074" } ], "opinion_index": 0, "case_paths": [ "/nm/116/0450-01" ] }, { "cite": "121 N.M. 1", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566519 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "10", "parenthetical": "stating error is harmless if it does not prejudice the defendant" }, { "page": "240", "parenthetical": "stating error is harmless if it does not prejudice the defendant" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0001-01" ] }, { "cite": "94 N.M. 190", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573203 ], "weight": 2, "pin_cites": [ { "page": "192" }, { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nm/94/0190-01" ] }, { "cite": "104 N.M. 660", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594896 ], "weight": 2, "pin_cites": [ { "page": "662-63" }, { "page": "1230-31" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0660-01" ] }, { "cite": "1998-NMSC-034", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827353 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0044-01" ] }, { "cite": "297 U.S. 157", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3929288 ], "weight": 3, "year": 1936, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/us/297/0157-01" ] }, { "cite": "110 N.M. 45", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716905 ], "weight": 2, "pin_cites": [ { "page": "49" }, { "page": "803" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0045-01" ] }, { "cite": "66 N.M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848200 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "473-74" }, { "page": "1039-40" } ], "opinion_index": 0, "case_paths": [ "/nm/66/0458-01" ] }, { "cite": "87 N.M. 57", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2836650 ], "weight": 4, "pin_cites": [ { "page": "61" }, { "page": "287" }, { "page": "61" }, { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/nm/87/0057-01" ] }, { "cite": "507 U.S. 725", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6237509 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "734" }, { "page": "736" } ], "opinion_index": 0, "case_paths": [ "/us/507/0725-01" ] }, { "cite": "1998-NMSC-052", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827417 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 13" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0477-01" ] }, { "cite": "104 N.M. 587", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1595015 ], "weight": 2, "pin_cites": [ { "page": "590" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0587-01" ] }, { "cite": "90 N.M. 87", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2872642 ], "weight": 2, "pin_cites": [ { "page": "93" }, { "page": "1220" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0087-01" ] }, { "cite": "963 P.2d 511", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "1998-NMSC-018", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834347 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0434-01" ] }, { "cite": "196 F.2d 653", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 499435 ], "pin_cites": [ { "page": "655" } ], "opinion_index": 0, "case_paths": [ "/f2d/196/0653-01" ] }, { "cite": "76 N.M. 273", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501837 ], "weight": 6, "year": 1966, "pin_cites": [ { "page": "275" }, { "page": "501" }, { "page": "275" }, { "page": "501" }, { "page": "276" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/nm/76/0273-01" ] }, { "cite": "592 F.2d 931", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 53041 ], "pin_cites": [ { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/f2d/592/0931-01" ] }, { "cite": "384 F.2d 602", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2082171 ], "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/f2d/384/0602-01" ] }, { "cite": "722 F.2d 1090", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10607496 ], "weight": 2, "pin_cites": [ { "page": "1095" }, { "page": "1094" } ], "opinion_index": 0, "case_paths": [ "/f2d/722/1090-01" ] }, { "cite": "112 N.M. 59", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720268 ], "weight": 2, "pin_cites": [ { "page": "66" }, { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0059-01" ] }, { "cite": "97 N.M. 177", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555069 ], "weight": 10, "year": 1981, "pin_cites": [ { "page": "179" }, { "page": "1234" }, { "page": "179" }, { "page": "1234" }, { "page": "179" }, { "page": "1234", "parenthetical": "stating that the trial judge \"must not forget his judicial function by assuming the role of advocate or by taking a partisan stance\"" }, { "page": "179" }, { "page": "1234", "parenthetical": "asserting that judge \"should not show bias or feeling\" in interrogation of witnesses" }, { "page": "179" }, { "page": "1234" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0177-01" ] } ], "analysis": { "cardinality": 1226, "char_count": 32294, "ocr_confidence": 0.689, "pagerank": { "raw": 1.1811921055852281e-07, "percentile": 0.5886845140392355 }, "sha256": "13b125ea9e84a0a4ef92ac64737e3723f8d675e6aad4396c53cb95bf5c1423f3", "simhash": "1:7d0f2846ed43eb34", "word_count": 5250 }, "last_updated": "2023-07-14T14:57:01.529900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and BOSSON, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Adam PAIZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\n{1} Defendant appeals his conviction for aggravated battery, contrary to NMSA 1978, Section 30-3-5 (1969). Defendant contends that the conduct of the metropolitan court judge, Keesha Ashanti, at trial and before the jury evidenced a manifest bias in favor of the State securing a conviction against him. We agree and conclude that Judge Ashanti\u2019s conduct was so egregious that it constituted plain error, and thus, Defendant\u2019s conviction must be reversed and this case remanded for a new trial before a different, impartial judge.\nFacts and Procedural Background\n{2} \u2019The trial was .conducted before a jury in the metropolitan court. The State began its case with the testimony of Albuquerque Police Officer Matt Suazo. During direct examination, Officer Suazo testified that while working as a member of the Domestic Abuse Response Team on March 1, 1997, he was dispatched to an address located in Albuquerque, Bernalillo County. When he arrived, he approached a man and woman walking down the street, whom he later identified as Adam Paiz and Isela Camarena. He testified that Camarena was bleeding from her swollen nose and lip and had blood stains on her shirt. Defendant had a fresh abrasion and blood on his right knuckles, \u201clike he had been scratched against a surface.\u201d On cross-examination, Officer Suazo testified that when he approached Defendant and Camarena walking down the street, they were walking side by side, and were not arguing. Officer Suazo further stated that when he first spoke to Camarena, she did not want to tell him who hit her. When asked if Defendant had hit her, Camarena said that someone else had, not Defendant.\n{3} When defense counsel asked Officer Suazo if Camarena told him that Defendant was not the person who hit her, the metropolitan court judge interrupted counsel and asked the officer, \u201cOne moment, why don\u2019t you just tell us what she said.\u201d Officer Suazo agreed with defense counsel that Camarena told him that someone other than Defendant had hit her. Again, the judge interrupted, asking the officer, \u201cOne moment, I need to know; what else did she say?\u201d Officer Suazo responded that Camarena was reluctant to talk to him, so he was unable to obtain any further information from her. The judge asked Officer Suazo, \u201cWhen you say reluctant, why don\u2019t you describe what it is that was said and what you observed that would lead you to the conclusion she was reluctant.\u201d Officer Suazo replied that Camarena said everything was alright and that nothing happened. Officer Suazo stated that based on the injuries he observed on Defendant and Camarena, he indicated to Camarena that he thought that Defendant was possibly her assailant. Camarena responded that it was not Defendant and that it was someone else.\n{4} Officer Suazo testified that when he told Camarena that Defendant was going to be taken into custody, she was not adamant that Defendant was not her assailant. He stated that Camarena seemed appeased. The metropolitan court judge asked, \u201cWben you say appeased, could you please describe what is it you observed that would lead you to the conclusion that she was appeased.\u201d Defense counsel objected to the judge\u2019s inquiry as calling for speculation, but the judge overruled the objection. Officer Suazo responded by stating that Camarena was neither argumentative nor confrontational toward the officers. He further testified that after Defendant was taken into custody, Camarena was actually cooperative and willingly accepted assistance from victim impact personnel.\n{5} The metropolitan court judge continued to question Officer Suazo, asking him, \u201cAfter you informed her that Mr. Paiz was going to be arrested, did she repeatedly note he wasn\u2019t the person and [you] shouldn\u2019t arrest him?\u201d Officer Suazo responded that when he told Camarena that he suspected that Defendant had hit her, she also indicated that someone else may have hit her.\n{6} Thereafter, the metropolitan court judge extensively questioned Officer Suazo about the injuries to Defendant\u2019s right hand:\nJudge: You stated that you observed blood and injuries to Mr. Paiz\u2019s knuckles?\nOfficer: That\u2019s correct, ... his right hand.\nJudge: Was that, what you observed consistent or inconsistent with what you observed on the female? You observed injuries on the female?\nOfficer: Right.\nJudge: You observed injuries on Mr. Paiz?\nOfficer: They were consistent with the information I received that he could have inflicted the injuries sustained.\nJudge: That\u2019s not my question. The injuries on the female and the injuries on the defendant, were they consistent or inconsistent with each other?\nOfficer: They were consistent based on my experiences.\nJudge: Have you done any prior investigation of calls of this nature?\nOfficer: Yes, ma\u2019am. Since July of last year. Strictly I responded to incidents of domestic violence and the injuries that I observed on both parties, whether male or female as the primary aggressor, these injuries were consistent with those that I have witnessed or observed in other incidents of domestic violence as having been one caused by the other.\nJudge: Have you had any prior experience ... where the person who has the primary injuries was reluctant to identify the assailant?\nOfficer: Certainly. In these particular instances of domestic violence they know one another, they\u2019re either married dr boyfriend and girlfriend a lot of times. Either half don\u2019t want to incriminate the responsible person.\nCounsel: Your honor, I\u2019m sorry, I\u2019m going to have to stop the officer there. He\u2019s talking about what happens in other eases, what\u2019s the relevance of that?\nJudge: Well, he\u2019s made a conclusion in reference to ... Camarena and her testimony. I think he needs to lay the foundation as to how he reached that conclusion. If that conclusion is based on his prior experience of other victims, I think it\u2019s relevant. So objection is overruled. Continue.\nOfficer: Leaving off with, a lot of times they don\u2019t want to incriminate their lover, boyfriend, girlfriend, husband and wife. Just because they don\u2019t want to see them go to jail. And a lot of times I try and let the victims of domestic violence ... know that an arrest is intervention and all I want to do is help him. But a lot of times we\u2019ll still get resistance from the victim of domestic violence because they don\u2019t want to see that person taken away; they don\u2019t want to see, in instances of marriage, they don\u2019t want to see the income stop coming to the family. They feel there\u2019s going to be____\nCounsel: Your honor, I\u2019m sorry, again I\u2019m going to have to interrupt the officer. I think we\u2019re getting into ....\nJudge: Tell me, did Mr. Paiz offer an explanation for the blood that was on him?\nCounsel: Excuse me your honor. I\u2019m sorry, that calls for hearsay.\nJudge: He\u2019s the defendant charged with a crime.\nCounsel: It\u2019s an out-of-court statement that would have been made.\nJudge: Statements made by defendants are excepted from the hearsay rule. Objection overruled. Did he give an explanation as to the blood that was on him?\nOfficer: From my recollection, he indicated that he did not know how he received that injury to his right hand which was questionable for me.\nJudge: He had blood on his hand, but he said he didn\u2019t know how he received it?\nOfficer: That\u2019s correct.\nJudge: Did he say anything else about it?\nOfficer: He also just stated that it was somebody else.\n{7} Defense counsel continued his cross-examination, asking Officer Suazo if based on his experience, Defendant\u2019s hand could have been \u201cscratched\u201d by someone other than Camarena. The metropolitan court judge apparently thought that Officer Suazo had testified that Defendant\u2019s hand was \u201cscraped,\u201d not \u201cscratched,\u201d and corrected counsel\u2019s use of the term \u201cscratched.\u201d Defense counsel then asked Officer Suazo, \u201cHe had an abrasion, that means a scratch, doesn\u2019t it officer?\u201d The judge interrupted, \u201cNo, no, no, no, no, no, no, nope, nope, nope, ... let\u2019s be very careful the words we use. Let\u2019s use the words he used. Because he didn\u2019t say \u2018scratched.\u2019\u201d Although Officer Suazo had actually described Defendant\u2019s hand as appearing though it \u201chad scratched against a surface,\u201d the judge expressed her understanding of the difference between an abrasion and a scratch, stating, \u201cWhen I think of an abrasion, an abrasion is something that happens when your hand comes into contact with something else. A scratch is when something comes in contact with your hand.\u201d\n{8} Accordingly, defense counsel rephrased his question, asking Officer Suazo if it was possible that Defendant received the abrasion while defending Camarena from someone else. The metropolitan court judge interrupted and did not allow counsel\u2019s question because it called for speculation. After Officer Suazo responded to the judge\u2019s question about whether he personally observed Defendant hit Camarena, the metropolitan court judge limited defense counsel\u2019s cross-examination to matters within the officer\u2019s personal knowledge.\n{9} Defense counsel continued to question Officer Suazo about the possible ways Defendant could have sustained the injury to his hand:\nCounsel: Officer, isn\u2019t it true that when someone gets angry, sometimes they slam their fist down on a table? Correct?\nOfficer: It\u2019s again speculation whether that could happen.\nCounsel: But that does happen doesn\u2019t it, people get upset, they punch things, they punch the wall?\nOfficer: Yes.\nCounsel: They punch a tree, they punch a table.\nOfficer: That does happen.\nJudge: Punch faces also too, don\u2019t they?\nOfficer: Yes.\nCounsel: I\u2019m sorry, your Honor, what did you say?\nJudge: I said, \u2018punch faces also sometimes.\u2019 Since we\u2019re speculating.\nDefense counsel continued his cross-examination without objecting to the metropolitan court judge\u2019s questions. Officer Suazo acknowledged that he could not determine with certainty what caused the abrasions on Defendant\u2019s hand. However, he testified that Defendant was the only person presented to the witness, when she was asked to identify Camarena\u2019s assailant.\n{10} After defense counsel\u2019s cross-examination, the metropolitan court judge continued questioning Officer Suazo about Camarena\u2019s injuries. Specifically, the judge asked Officer Suazo if there was \u201ctemporary disfigurement or impairment\u201d to Camarena\u2019s nose and lip as a result of her injuries. Officer Suazo responded that there was \u201cpainful, temporary disfigurement.\u201d\n{11} At the conclusion of the State\u2019s redirect examination, the metropolitan court judge asked Officer Suazo whether, after his investigation, he had drawn a conclusion as to how Camarena received her injuries. In response to a further question by the metropolitan court judge concerning other suspects, Officer Suazo testified that his investigation had not yielded any other suspects who may have been responsible for Camarena\u2019s injuries.\n{12} The State then called Margie Platero as its second and final witness. During his investigation, Officer Suazo met with Platero, who placed the emergency call to police. Platero identified Defendant as the person she witnessed \u201cbeating up a female.\u201d Platero testified that on the evening of March 1, 1997, a woman came to her apartment, knocking on her door and begging for help. She stated that Camarena was holding a little boy, and that a man followed her into the apartment. Camarena asked to use Platero\u2019s telephone. Platero identified Defendant as the man who entered her apartment with Camarena. She testified that Defendant did not allow her or Camarena to use the phone. The metropolitan court judge interrupted, asking Platero to describe what Defendant did that prevented her and Camarena from using the phone. Platero responded, \u201cHe got in the way, you know, pushed her away from the phone.\u201d When Platero tried to use the phone, Defendant also pushed her away and told her not to make the call.\n{13} Platero further testified that she saw Defendant hit Camarena on the side of her face with his fist, pull her hair, and pull her down and kick her. Platero did not intervene and asked the couple to leave. After the couple left, Platero called the police. She could hear Camarena screaming from behind the apartment. The police responded to the call and arrived within ten minutes, at which time Platero identified Defendant as Camarena\u2019s assailant.\n{14} Platero seemed confused when attempting to describe how she identified Defendant as Camarena\u2019s assailant. Platero testified that when she looked out of her window to identify Camarena\u2019s assailant, Defendant was not the only person standing outside. She stated that there was another man standing next to Defendant, but she seemed confused about what the other man was wearing and whether he was a police officer. The metropolitan court judge interrupted, asking further questions of Platero. On cross-examination, Platero indicated she was confused about the chronology of events, so the metropolitan court judge intervened with questions to this effect. On redirect examination, Platero testified that there were two men standing outside her window when Officer Suazo asked her to identify Camarena\u2019s assailant. Platero testified that the other man was never in her apartment and that she did not see the other man hit Camarena. This testimony was inconsistent with Officer Suazo\u2019s testimony that Defendant was the only person presented to Platero when she was asked to identify Camarena\u2019s assailant. After the prosecutor stated that she had no further questions, referring to Defendant, the metropolitan court judge asked Platero, \u201cMa\u2019am, do you have any doubt whatsoever that this is the man that was in your apartment, any doubt at all? Platero responded, \u201cThat\u2019s him.\u201d\n{15} Defendant was convicted of aggravated battery. We note that while the briefs indicate Defendant was convicted of aggravated battery of a household member, the judgment and sentence and jury verdict indicate he was convicted of aggravated battery. At the sentencing hearing, Defendant moved for a mistrial, objecting to the metropolitan court judge\u2019s questioning of Officer Suazo. The request was denied and Defendant appealed to the district court, arguing that he was denied a fair and impartial trial as a result of the metropolitan court judge\u2019s questions, which amounted to improper comments on the evidence before the jury. In addition, Defendant argued that he was denied his constitutional right to remain silent when the metropolitan court judge asked Officer Suazo whether Defendant offered an explanation for the injury to his fist. The district court issued a memorandum opinion affirming Defendant\u2019s conviction, while expressing grave reservations about the metropolitan court judge\u2019s handling of the trial.\nInterrogation of Witnesses by the Metropolitan Court Judge\n{16} The rule governing the questioning of witnesses by the trial court provides:\nA. Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.\nB. Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party; provided, however, that in trials before a jury, the court\u2019s questioning must be cautiously guarded so as not to constitute an implied comment.\nC. Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.\nRule 11-614 NMRA 1999.\n{17} A trial judge may question witnesses to clarify testimony for the jury or to bring out all of the facts in order to ascertain the truth. See Rule 11-611(A) NMRA 1999 (providing for the trial court\u2019s exercise of reasonable control over the interrogation of witnesses and presentation of evidence). A trial judge \u201chas the prerogative to insist that all facts be presented that will insure a fair trial. However, that prerogative must be exercised with caution.\u201d State v. Crump, 97 N.M. 177, 179, 637 P.2d 1232, 1234 (1981). If the judge does not act cautiously, the judge risks giving an impression to the jury that the judge favors a particular position of the parties. Indeed, the jury may be especially attentive in order to have some basis to sway its judgment in a close case, and no one in the courtroom commands the jury\u2019s respect as does the judge who makes all the decisions in a criminal trial except guilt or innocence. Thus, \u201c[a] trial judge should studiously avoid making any remark or statement in the presence of the jury concerning factual issues or which may be construed as conveying his [or her] opinion concerning the merits of the case.\u201d State v. Sanchez, 112 N.M. 59, 66, 811 P.2d 92, 99 (Ct.App.1991). We examine Defendant\u2019s principal allegations against Judge Ashanti to determine whether she violated these standards.\nExtent of Questioning and Comments on the Evidence\n{18} The trial judge\u2019s \u201cinterrogation of witnesses should not be unduly protracted.\u201d Crump, 97 N.M. at 179, 637 P.2d at 1234. Extensive and persistent questioning by the trial judge can give the impression to the jury that the judge favors one side over the other. See id.; United States v. Beaty, 722 F.2d 1090, 1095 (3d Cir.1983) (holding that extensive questioning of key witness regarding matters affecting credibility was error). When extensive questioning is coupled with additional improprieties, it is easier for the appellate court to find error. See Cramp, 97 N.M. at 179, 637 P.2d at 1234 (stating that the trial judge \u201cmust not forget his judicial function by assuming the role of advocate or by taking a partisan stance\u201d); United States v. Guglielmini, 384 F.2d 602, 605 (2d Cir.1967) (holding that \u201cpersistent questioning the trial judge conducted ..., together with his comments to defense counsel, conveyed to the jury far too strong an impression of his belief in the defendants\u2019 guilt\u201d). The trial judge potentially runs afoul of Rule 11-614 by asking questions other than to clarify, to deal with a difficult witness, or to clear up witness confusion. See United States v. Hickman, 592 F.2d 931, 933 (6th Cir.1979). Ordinarily, the judge should wait until redirect examination is concluded to ask clarifying questions. See Beaty, 722 F.2d at 1094.\n{19} In the case on appeal, we have little difficulty in concluding that the metropolitan court judge abused the discretion allowed under Rule 11-614 when we consider the aggregation of her actions. Judge Ashanti extensively questioned Officer Suazo concerning questions critical to the defense that Defendant was not the one who committed aggravated battery upon Camarena. In addition, she made remarks which were improper. We agree with Defendant that the metropolitan court judge improperly limited defense counsel\u2019s cross-examination of Officer Suazo by not allowing defense counsel to use the term \u201cscratch.\u201d The judge\u2019s insistence on the term \u201cabrasion\u201d as opposed to the term \u201cscratch,\u201d combined with her stated definition of the terms, could potentially lead the jury to infer that Defendant actively caused his hand injury by coming into contact with Camarena\u2019s face, particularly because the metropolitan court judge initiated the discrepancy in the terminology. See Cramp, 97 N.M. at 179, 637 P.2d at 1234 (asserting that judge \u201cshould not show bias or feeling\u201d in interrogation of witnesses).\n{20} Even more significantly, when defense counsel posed alternative ways in which Defendant could have injured his hand, such as by hitting a table or wall, the metropolitan court judge interrupted with the question, \u201cpunch faces also too, don\u2019t they?\u201d The judge was reprimanding defense counsel for speculative questioning. However, the judge\u2019s choice of words amounted to an impermissible comment on the evidence, and in our judgment constituted inexcusable misconduct by a trial judge. See generally id.; see also State v. Sedillo, 76 N.M. 273, 275, 414 P.2d 500, 501 (1966). Defendant pursued a defense that he was not the one who struck Camarena in the face causing her bloody nose and lip. The metropolitan court judge was correct that defense counsel\u2019s questions called only for speculation, but, the judge\u2019s question, which had a ring of sarcasm, could have been interpreted by the jury to mean that she believed that Defendant got blood on his hand by punching Camarena\u2019s face. Moreover, questions of Officer Suazo about the consistency of the injuries and his prior experience with domestic violence victims, and the questions concerning whether the investigation uncovered any other suspects, whether the officer came to any conclusions about the victim\u2019s assailant, and whether there was any temporary disfigurement or impairment as a result of victim\u2019s injuries appeared to show a bias in the State\u2019s favor. See Crump, 97 N.M. at 179, 637 P.2d at 1234; Sedillo, 76 N.M. at 275, 414 P.2d at 501.\n{21} The metropolitan court judge further erred in the prosecutor\u2019s direct examination of Platero. We note that it appeal\u2019s that the metropolitan court judge interrupted Platero\u2019s direct examination primarily when the witness either indicated she was confused, or appeared to be confused, as evidenced by her inconsistent responses. The metropolitan court judge could properly question Platero to clarify testimony for the jury or to bring out all of the facts in order to ascertain the truth. See Rule 11 \u2014 611(A); see also Sedillo, 76 N.M. at 276, 414 P.2d at 502 (stating that trial judge \u201c \u2018enjoys the prerogative, rising often to the standard of a duty, of eliciting those facts he deems necessary to the clear presentation of the issues\u2019\u201d (quoting United States v. Brandt, 196 F.2d 653, 655 (2d Cir.1952))). However, the metropolitan court judge\u2019s final question to Platero about whether she had any doubt whatsoever that Defendant was Camarena\u2019s assailant clearly stepped over the line.\n{22} When we consider the overall effect of Judge Ashanti\u2019s questions and comments throughout the trial, we conclude that her actions exceeded her discretion under Rule 11-614 and denied Defendant a fair trial. See State v. Henderson, 1998-NMSC-018, \u00b6 6, 125 N.M. 434, 963 P.2d 511 (stating that a defendant is denied a fair trial if \u201cby exhibiting such conduct as \u2018undue interference,\u2019 or unreasonable \u2018impatience,\u2019 or an excessively \u2018severe attitude,\u2019 the judge prevent[s] the \u2018proper presentation of the cause or the ascertainment of the truth\u2019 \u201d (quoting State v. Gurule, 90 N.M. 87, 93, 559 P.2d 1214, 1220 (Ct.App.1977))).\nPlain Error\n{23} The State argues that Defendant did not preserve the alleged errors for appeal because he failed to object to the metropolitan court judge\u2019s questions as violating Rule 11-614 or otherwise denying him a fair trial. See State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct.App.1986) (stating that in order to preserve an issue for appeal, defendant must make a timely objection that specifically apprises the trial court of the nature of the claimed error and invokes an intelligent ruling thereon). During trial, Defendant objected to some of the judge\u2019s questions as calling for speculation, hearsay, or irrelevant testimony. It was not until the sentencing hearing that defense counsel objected for the first time and moved for a mistrial as a result of the judge\u2019s interrogation of Officer Suazo, but only on the basis of the \u201cpunched faces\u201d question asked by the judge. Based on our review of the record, it appears that Defendant does not base any of his claims on appeal on objections made at trial.\n{24} Defendant argues that defense counsel did object to the metropolitan court judge\u2019s questions on grounds of relevancy and hearsay, but essentially acknowledges that the basis for the appeal to the district court and to this Court is different from that raised at trial. In his defense, Defendant contends that in the metropolitan court judge\u2019s zeal to elicit evidence on the State\u2019s behalf, and as a result of her interruptions, the judge failed to give defense counsel an opportunity to object or to fully articulate the basis for his objections. He contends that, in effect, the metropolitan court judge\u2019s conduct forced defense counsel to argue the claims for the first time on appeal. Under Rule 11-614(C), to preserve an issue for appeal, defense counsel does not have to object in front of the jury, but may object \u201cat the next available opportunity when the jury is not present.\u201d Defense counsel did not make any timely objections, but waited until the sentencing hearing to object and move for a mistrial.\n{25} In the absence of objection or motion at trial, an appellate court may reverse the judgment upon a finding of fundamental or plain error. See State v. Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993). In this case, because the metropolitan court judge\u2019s error arose in connection with the eliciting of evidence and because she violated Rule 11-614, we analyze whether the plain error rule applies. See Lucero, 116 N.M. at 453, 863 P.2d at 1074 (clarifying that plain error applies to evidentiary matters which were not brought to the attention of the trial judge, and not just evidentiary rulings).\n{26} Rule 11-103(D) NMRA 1999 discusses plain error and states: \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 Under the rule, there must be (1) error, that is (2) plain, and (3) that affects substantial rights. The Federal Rules of Evidence contain the same rule, and we take guidance from the United States Supreme Court interpretations of the federal rule. See State v. Torres, 1998-NMSC-052, \u00b6 13, 126 N.M. 477, 971 P.2d 1267.\n{27} In the case on appeal, as we have discussed, the metropolitan court judge exceeded the bounds of Rule 11-614 and committed error. When we review the trial in its entirety, it is obvious to us that the metropolitan court judge commented upon the evidence in a partial manner. Hence, the error was plain. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).\n{28} In ascertaining whether a plain error affects substantial rights, the plain error rule is not as strict as the doctrine of fundamental error in its application. See Lucero, 116 N.M. at 453, 863 P.2d at 1074. \u201cUnlike the situation in the case of fundamental error, to find plain error we need not determine that there has been a miscarriage of justice or a conviction in which the defendant\u2019s guilt is so doubtful that it would shock the conscience of the court to allow it to stand.\u201d Id. Nevertheless, the plain error rule is to be used sparingly. See generally State v. Marquez, 87 N.M. 57, 61, 529 P.2d 283, 287 (Ct.App.1974). It is an exception to the rule that parties must raise timely objection to improprieties at trial, a rule which encourages efficiency and fairness. See generally Jackson v. Southwestern Pub. Serv. Co., 66 N.M. 458, 473-74, 349 P.2d 1029, 1039-40 (1960). Our Supreme Court has stated that, like fundamental error, plain error requires \u201c \u2018an injustice that creates grave doubts concerning the validity of the verdict.\u2019 \u201d Lucero, 116 N.M. at 453, 863 P.2d at 1074 (quoting State v. Barraza, 110 N.M. 45, 49, 791 P.2d 799, 803 (Ct.App.1990)). When a plain error affects substantial rights, the United States Supreme Court has indicated that an appellate court should exercise its discretion and reverse \u201cif the error \u2018seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.\u2019 \u201d Olano, 507 U.S. at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)); see also Marquez, 87 N.M. at 61, 529 P.2d at 287.\n{29} We reverse in this ease because the metropolitan court judge\u2019s errors seriously affected the fairness of the trial. Both the United States and the New Mexico constitutions guarantee a defendant in a criminal case the right to a fair trial. See U.S. Const, amend. VI; N.M. Const, art. II, \u00a7 14. Although this right does not require that the trial be perfect, it does demand fundamental and' overall fairness. See State v. McDonald, 1998-NMSC-034, \u00b6 16, 126 N.M. 44, 966 P.2d 752.\n{30} In this case, Defendant had the right to a jury trial because, if convicted, he could be incarcerated. See N.M. Const, art. II, \u00a7 12. The right to a jury trial entails a determination of guilt or innocence by the jury. That is, the jury acts as the sole fact finder based upon its weighing of the evidence and credibility of the witnesses.\n{31} The metropolitan court judge\u2019s actions in this case interfered with this role of the jury as independent fact finder. We have reviewed the audio-taped transcript of the trial. The trial was a short one with only two witnesses. The issues were not complex. Nothing about the case demanded substantial judicial intervention to permit the jury to properly perform its duty. But the metropolitan court judge persistently questioned the witnesses and interrupted counsel in a manner that was not always neutral in tone of voice, and which was repeatedly supportive of the State\u2019s case. Her actions unmistakenly conveyed to the jury a sense that the judge thought that Defendant was guilty. By doing so, the metropolitan court judge did not permit the jury to exercise its independent fact-finding role.\n{32} We note that prior to taking evidence, the metropolitan court judge instructed the jury in accordance with Rule 14-101 NMRA1999 as follows:\nNo statement, ruling, remark or comment which I make during the course of the trial is intended to indicate my opinion as to how you should decide the ease or to influence you in any way. At times I may ask questions of witnesses. If I do, such questions do not in any way indicate my opinion about the facts or indicate the weight I feel you should give to the testimony of the witness.\nWe do not consider this instruction as a cure for the metropolitan court\u2019s errors. This instruction does not contemplate the type of actions as occurred in this case. Cf. State v. Stallings, 104 N.M. 660, 662-63, 725 P.2d 1228, 1230-31 (Ct.App.1986) (holding that general instruction to jury was adequate when judge simply asked clarifying questions, which were neutrally presented). We cannot anticipate that our juries will be able to discern the difference between their own judgment and that of the trial judge when the trial judge has so exceeded the rule in impressing her opinion on the jury. See State v. Caputo, 94 N.M. 190, 192, 608 P.2d 166, 168 (Ct.App.1980) (holding that such \u201cinstruction in no way advised the jury how to recognize irrelevant questions or told the jury that ... such questions and the answers to them should be disregarded because they were irrelevant\u201d). The problem in this case is that even though there is substantial circumstantial evidence of Defendant\u2019s guilt, we are not able to dissect the trial in such a manner so as to isolate the metropolitan court judge\u2019s errors from their impact upon the jury. If we were able to do so, we would be able to apply a harmless error analysis. See State v. Woodward, 121 N.M. 1, 10, 908 P.2d 231, 240 (1995) (stating error is harmless if it does not prejudice the defendant).\n{33} Because the position of the trial judge is so significant at the trial, and because the metropolitan court judge so exceeded the bounds of her discretion under Rule 11-614, the judge\u2019s preliminary instruction did not preclude the infectious nature of her actions. Under these circumstances; when the metropolitan court judge has substantially conveyed a position concerning the issues before the jury, the fairness of the trial has been vitiated to the extent that we find plain error.\nConclusion\n{34} We reverse the district court and Defendant\u2019s conviction and remand for a new trial with reassignment to a new metropolitan court judge.\n{35} IT IS SO ORDERED.\nALARID and BOSSON, JJ., concur.", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Patricia A. Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for Appellee.", "Phyllis H. Subin, Chief Public Defender, Santa Fe, Thomas DeMartino, Assistant Public Defender, Albuquerque, for Appellant." ], "corrections": "", "head_matter": "1999-NMCA-104\n987 P.2d 1163\nSTATE of New Mexico, Plaintiff-Appellee, v. Adam PAIZ, Defendant-Appellant.\nNo. 19,491.\nCourt of Appeals of New Mexico.\nJuly 6, 1999.\nPatricia A. Madrid, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for Appellee.\nPhyllis H. Subin, Chief Public Defender, Santa Fe, Thomas DeMartino, Assistant Public Defender, Albuquerque, for Appellant." }, "file_name": "0776-01", "first_page_order": 812, "last_page_order": 821 }