                                                                I attest to the accuracy and
                                                                 integrity of this document
                                                                   New Mexico Compilation
                                                                 Commission, Santa Fe, NM
                                                                '00'05- 14:23:29 2017.02.15

Certiorari Denied, January 24, 2017, No. S-1-SC-36237;
Conditional Cross-Petition Denied, January 24, 2017, No. S-1-SC-36237

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-020

Filing Date: November 28, 2016

Docket No. 33,709

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

RAMON HERNANDEZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
Gerald E. Baca, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Kenneth H. Stalter, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                      OPINION

GARCIA, Judge.

{1}    Defendant Ramon Hernandez appeals his convictions for homicide by vehicle,
contrary to NMSA 1978, Section 66-8-101(A) (2004, amended 2016), great bodily harm by
vehicle, contrary to Section 66-8-101(B), and reckless driving, contrary to NMSA 1978,

                                           1
Section 66-8-113(A) (1987). Defendant asserts that (1) the district court erred in failing to
grant a mistrial following improper testimony regarding excluded evidence by New Mexico
State Police Officer Mario Vasquez; (2) prosecutorial misconduct bars retrial; (3) the district
court erroneously admitted Defendant’s conversation with a visitor that was recorded while
Defendant was incarcerated; (4) there was insufficient evidence to prove Defendant drove
at the time of the accident or that Defendant’s conduct was reckless; (5) the district court’s
findings were insufficient to support its classification of homicide by vehicle as a serious
violent offense; (6) cumulative error in the district court’s evidentiary rulings deprived
Defendant of a fair trial; and (7) Defendant’s conviction for reckless driving violates the
prohibition against double jeopardy. We hold that the improper testimony regarding the
purported confession was extremely prejudicial and warranted a mistrial. We also hold that
the prosecutor’s conduct did not rise to a level that would bar retrial and that there was
sufficient other evidence to support Defendant’s convictions. We remand for a new trial.
Retrial obviates the need to address Defendant’s remaining arguments raised on appeal.
Accordingly, we reverse Defendant’s three convictions and remand for a new trial.

BACKGROUND

{2}     On June 10, 2012, there was a two-car collision on southbound I-25 near Exit 307
in San Miguel County, New Mexico. Defendant and Domingo Gonzales were in one car, a
Pontiac sedan. Victims Aileen and Zachary Smith (“the Smiths” collectively or “Female
Victim” and “Male Victim” respectively when referred to as individuals) were in the other
car, a Suzuki SUV. Male Victim was driving in the right lane when the Pontiac entered the
highway at a low rate of speed. Male Victim signaled and moved the Suzuki into the left lane
to avoid the slow-moving Pontiac. The Pontiac left its lane and was headed in a horizontal
direction toward the left lane where the Suzuki was driving. Male Victim tried to avoid the
Pontiac, the two cars collided, nearly perpendicular. The right front of the Suzuki hit the
driver’s side of the Pontiac, near the front end, and the airbags in the Suzuki deployed.

{3}      Shortly after the collision, Jorge Acosta, a passerby, stopped to help. Acosta observed
two people emerge from the driver’s side window of the Pontiac. The first person, who was
later identified as Gonzales, walked away from the scene of the accident. The second person
was identified as Defendant. Acosta did not observe who had been driving the Pontiac, but
Defendant told him that “the one who had run was the one who had driven.” Throughout the
investigation and in his conversations with the first responders, Defendant maintained that
he was not the driver of the Pontiac. He stated to a first responder that “he did not know”
who was driving and told officers that Gonzales was driving at the time of the accident.

{4}     Female Victim was seven months pregnant at the time of the accident. Her water
broke on scene and she began to have severe contractions. Male Victim called 911. Female
Victim was trapped in the car but first responders freed her and took her to the hospital.
There, doctors performed an emergency cesarean delivery. A baby boy (Baby) was born
alive but was not breathing and soon died from blunt force injuries and prematurity. Female
Victim also suffered other significant injuries with permanent effects. The Smiths had one

                                               2
child after the accident, but doctors advised against any more children due to Female
Victim’s ongoing health risks associated with the accident. Male Victim’s injuries were not
as serious and healed without lasting consequence.

{5}     Ultimately, Defendant was charged with multiple crimes related to the collision,
including homicide by vehicle, great bodily harm by vehicle, driving under the influence of
intoxicating liquor or drugs, and reckless driving. The State alleged that Defendant was the
driver of the Pontiac at the time of the accident.

{6}      By the time of trial, Gonzales was not available to testify because he was deceased.
No statements from Gonzales were introduced as evidence. Evidence introduced at trial
included the following: (1) a recorded conversation between Defendant and a visitor at the
jail, with Defendant making remarks the State alleges imply that Defendant was the driver
based upon a reference to his location in the vehicle; (2) accident reconstruction testimony;
(3) DNA evidence taken from the Pontiac and compared against Defendant and Gonzales;
and (4) testimony from witnesses on scene and investigative officers, including improper
testimony from New Mexico State Police Officer Mario Vasquez that Defendant had
confessed to another officer about being “behind the wheel” at the time of the accident.
Officer Vasquez’s “behind the wheel” hearsay testimony was specifically excluded by a
pretrial motion in limine, but after failing to adhere to the court’s admonishment at trial, it
was ultimately excluded again by a curative instruction to the jury to “disregard that
statement [by Officer Vasquez] and to not consider it for any purpose.”

{7}     The jury convicted Defendant of homicide by vehicle (based upon evidence of
reckless driving), great bodily harm by vehicle (also based upon evidence of reckless
driving), and reckless driving. The jury acquitted Defendant of driving under the influence
of intoxicating liquor or drugs.

{8}     Defendant appeals, raising numerous issues. We address three of the issues raised:
(1) whether the district court should have granted a mistrial following the improper reference
by Officer Vasquez to the excluded confession; (2) whether alleged prosecutorial misconduct
bars retrial; and (3) whether there was sufficient evidence to support Defendant’s convictions
and remand for a new trial.

DISCUSSION

I.     Mistrial

A.     The Purported Confession Testimony

{9}    We address whether the district court erred when it failed to grant a mistrial based
on Officer Vasquez’s improper trial testimony that Defendant allegedly confessed to being
“behind the wheel” at the time of the accident. Prior to testifying at trial, Officer Vasquez
had been admonished that no such confession was ever made to Agent Gomez and, as a

                                              3
result, this purported confession was excluded from the State’s evidence as inadmissible
hearsay and was not to be mentioned at trial.

{10} Officer Vasquez previously prepared a written report stating Agent Gomez told him
that Defendant admitted to being the driver. However, Agent Gomez specifically refuted the
existence of any such purported confession as well as any alleged statement made to Officer
Vasquez. Accordingly, the parties agreed and stipulated that Defendant had never admitted
to Agent Gomez that he was the driver at the time of the collision. Therefore, the purported
statement in Officer Vasquez’s report was hearsay, factually incorrect, and prejudicial to
Defendant. Prior to trial, Defendant moved in limine to exclude any such testimony
regarding the purported confession as both factually incorrect and as prejudicial hearsay. The
district court granted Defendant’s motion, agreeing that what Officer Vasquez had written
in his report about a purported confession constituted inadmissable hearsay. Defense counsel
cautioned the district court and the State that any such testimony from Officer Vasquez
would be “undoable” and a mistrial issue. The district court then specifically directed the
State to confer with Officer Vasquez and stated, “I want it understood by [Officer Vasquez]
that he’s not to be repeating what [Agent] Gomez told him occurred” and to “make sure that
he is clear he’s not to testify to any hearsay.”

{11} At trial, prior to Officer Vasquez’s testimony, the prosecutor reconfirmed and
acknowledged the district court’s previous directive that it admonish Officer Vasquez not
to testify as to anything he was told by Agent Gomez. The district court responded, “I just
want to make sure because . . . I don’t want to end up with a mistrial at this point in time.”
After Officer Vasquez was called to testify and improperly testified regarding Defendant
being incarcerated, the district court issued another warning and put the State on further
notice that “[Officer Vasquez] likes to spit out a lot of information at a time, so be real
careful with the questions and be real specific with him.” Nonetheless, just moments later
the following exchange occurred with Officer Vasquez.

       Prosecutor:             We talked about the search of the vehicle and the
                               search warrant for [D]efendant and then you
                               interviewed, well, actually Agent Gomez interviewed
                               [D]efendant.

       Officer Vasquez:        That is correct.

       Prosecutor:             Okay, what was your next step after that in your
                               investigation?

       Officer Vasquez:        In our investigation, uh, like I said, we were outside
                               of the interview room while Agent Gomez said
                               [Defendant] were speaking. Um, Mr. Um, Agent
                               Gomez came out and stated that there was a
                               confession of being behind the wheel.

                                              4
{12} Following this exchange, the district court immediately recognized the error that had
occurred and excused the jurors from the courtroom. Once the jury was removed, the district
court began by stating that

        There was a motion in limine with respect to what [Officer Vasquez’]
        testimony would and would not be with respect to statements being made by
        [D]efendant to Agent Gomez . . . and specifically the issue with respect to
        this statement of confession. . . . [I]t was ordered by the court that no such
        statement would be made and that the [S]tate would admonish and do
        whatever it needed to do with this witness to make sure that [it] didn’t come
        out. It did come out. There was no [immediate] objection by the defense but
        I heard it. I know the jury heard it, and it was something that I ordered not to
        happen. I need to hear from the [S]tate why I shouldn’t declare a mistrial at
        this time.

The prosecutor acknowledged that the court’s order was violated but argued that a mistrial
was not warranted, asked for a curative instruction, and suggested that the issue be addressed
through cross-examination of Officer Vasquez. Defense counsel argued that a curative
instruction was not sufficient and asked for a mistrial. The district court orally ruled that
there was “[no] manifest necessity” for a mistrial and that “[i]t’s unfair to everyone to have
to spend the time and effort to come and deal with emotional issues here and [for] the court
[to] have to declar[e a] mistrial and have to do it over again.” Instead, the district court chose
to give the jury a curative instruction.

{13} The parties do not dispute that Officer Vasquez’s hearsay testimony regarding the
purported confession by Defendant constituted an evidentiary error and violated a specific
pre-trial order forbidding such testimony. In addition, the State does not dispute that
Defendant could have been unfairly prejudiced by Officer Vasquez’s improper testimony.

B.      The Curative Instruction

{14} “[The appellate courts] review a [district] court’s denial of a motion for mistrial
under an abuse of discretion standard.” State v. Fry, 2006-NMSC-001, ¶ 52, 138 N.M. 700,
126 P.3d 516 (internal quotation marks and citation omitted). The district court abuses its
discretion in ruling on a motion for mistrial if it acts in an obviously erroneous, arbitrary, or
unwarranted manner, id. ¶ 50, or when the decision is “clearly against the logic and effect
of the facts and circumstances before the court.” State v. Lucero, 1999-NMCA-102, ¶ 32,
127 N.M. 672, 986 P.2d 468 (internal quotation marks and citation omitted). In determining
whether the district court abused its discretion, we must address whether Officer Vasquez’s
prejudicial testimony about the purported confession could be cured by the instruction that
the district court read to the jury.

{15}    The State argues that the district court reasonably concluded a curative instruction

                                                5
was sufficient to remedy the single reference to Defendant’s purported confession. The State
contends that the record reveals several factors that mitigate potential prejudice and show
a mistrial was an extreme, unwarranted measure. These factors include that Officer
Vasquez’s testimony was not elicited by the prosecutor, Officer Vasquez’s misstatement
occurred early in the trial, and the subsequent testimony of Agent Gomez established
Defendant had not admitted to driving during the collision. Additionally, the State argues
that Defendant retained the ability to cross-examine Officer Vasquez regarding the erroneous
basis for his statement but chose not to do so. We disagree with the State’s assertion that
certain mitigating factors existed to cure a mistrial and shall address the numerous errors
made by the district court when it ruled otherwise.

{16} Numerous evidence-based factors support Defendant’s argument that the error could
not be cured by the district court’s instruction to disregard Officer Vasquez’s prejudicial
testimony about the purported confession that, in fact, was established to be erroneous prior
to trial. First, the issue of who was driving the Pontiac at the time of the accident, Defendant
or Gonzales, was the most critical issue in the case and highly disputed by the parties. The
State was aware of Defendant’s consistent statements that Gonzales was the driver at the
time of the accident. During its opening statement, the State made it clear that nobody saw
who was driving the vehicle, Defendant said Gonzales was driving, and the State intended
to prove Defendant was in fact the driver. Second, Gonzales’s inculpatory acts of being the
first person to exit the driver side of the Pontiac and immediately flee the scene of the
accident supported Defendant’s statements that Gonzales was the driver at the time of the
accident. Gonzales’s subsequent death prior to trial complicated the critical issue of who was
driving at the time of the accident. Third, at trial, the State’s case exclusively relied on
circumstantial and inferential evidence to establish that Defendant, not Gonzales, was
driving the Pontiac at the time of the accident. This evidentiary background made the
purported confession by Defendant to Agent Gomez uniquely prejudicial, especially under
the circumstances where Defendant established prior to trial that no such confession
occurred.

{17} Our case law acknowledges that “generally, a prompt admonition . . . to the jury to
disregard and not consider inadmissible evidence sufficiently cures any prejudicial effect
which might otherwise result.” State v. Armijo, 2014-NMCA-013, ¶ 9, 316 P.3d 902
(emphasis, alterations, internal quotation marks, and citation omitted) (quoting State v.
Newman, 1989-NMCA-086, ¶ 19, 109 N.M. 263, 784 P.2d 1006); see State v. Shoemaker,
1981-NMCA-151, ¶¶ 7, 9, 11-13, 97 N.M. 253, 638 P.2d 1098 (recognizing that a curative
instruction was sufficient to cure any prejudice that occurred when the state attempted to
impeach the defendant with a prior indictment that did not result in a conviction). However,
one of the exceptions to this general rule arises when “inadmissible testimony [is]
intentionally elicited by the prosecution.” State v. Gonzales, 2000-NMSC-028, ¶ 39, 129
N.M. 556, 11 P.3d 131, overruled on other grounds by State v. Tollardo, 2012-NMSC-008,
¶ 37 n.6, 275 P.3d 110. In such an instance, the general rule does not apply regardless of
whether the district court admonishes the jury to disregard the inadmissible testimony.
Gonzales, 2000-NMSC-028, ¶ 39. On review, this Court “must determine whether there is

                                               6
a reasonable probability that the improperly admitted evidence could have induced the jury’s
verdict.” Id. Therefore, prior to determining whether a curative instruction has cured what
otherwise would be error, we must first consider whether the inadmissible testimony was
intentionally elicited by the State. See Armijo, 2014-NMCA-013, ¶ 10.

C.      Officer Vasquez’s Testimony Was Not Intentionally Elicited by the State

{18} Some fault can be attributed to the prosecutor in failing to follow the district court’s
specific instruction to be “careful with the questions [to Officer Vasquez] and be real
specific with him.” Almost immediately thereafter, the prosecutor asked an open-ended
question regarding Agent Gomez’s interview of Defendant at the police station and Officer
Vasquez’s “next step after that[.]” From a strictly sequential perspective, this next step is
important to our review. The State was aware of the “next step” taken by Officer Vasquez.
This was the moment when Officer Vasquez erroneously claimed in his written report that
Agent Gomez came out of the interview room and purportedly told Officer Vasquez that
Defendant had confessed to being “behind the wheel.”

{19} The issue is whether the prosecutor intentionally disregarded the district court’s
direct admonishment to “be careful . . . and . . . specific” at this juncture when the prosecutor
immediately gave Officer Vasquez the open-ended opportunity to testify about what in fact
happen next—Agent Gomez allegedly telling Officer Vasquez about the purported
confession. See State v. Ruiz, 2003-NMCA-069, ¶¶ 6-9, 133 N.M. 717, 68 P.3d 957
(recognizing that a prosecutor’s questioning can be considered intentional when he walked
a key witness right into the testimony that had been suppressed by a motion in limine); see
also State v. Saavedra, 1985-NMSC-077, ¶ 9, 103 N.M. 282, 705 P.2d 1133 (concluding that
an improper prosecutorial motive was established when the prosecutor asked an identical
question of the same witness at a grand jury hearing and received identical inadmissible
answers each time), abrogated on other grounds by State v. Belanger, 2009-NMSC-025, 146
N.M. 357, 210 P.3d 783; State v. Vialpando, 1979-NMCA-083, ¶ 23, 93 N.M. 289, 599 P.2d
1086 (holding that a curative instruction was only proper because “the witness’s response
was totally unexpected by the court and the attorneys”). In fact, Officer Vasquez accurately
answered the prosecutor’s question regarding the “next step” that occurred in the
investigation. Just like the prosecutor in Ruiz, the prosecutor walked Officer Vasquez right
to the key confession testimony that had been suppressed prior to trial and gave him an open-
ended question that, once answered correctly, solicited the suppressed evidence. See 2003-
NMCA-069, ¶ 7. Like Ruiz, there is no record on appeal regarding what the prosecutor was
expecting as the answer to the question at issue on this appeal. See id. However, the district
court’s curative instruction included specific language stating that Officer Vasquez’s
testimony was non-responsive. Based upon the district court’s curative instruction, this Court
can only infer that the prosecutor expected Officer Vasquez to move on to other aspects of
the investigation and avoid any violation of the pretrial order and subsequent admonishments
issued by the district court. “Where there is a doubtful or deficient record, every presumption
must be indulged by the reviewing court in favor of the correctness and regularity of the
[district] court’s judgment.” State v. Rojo, 1999-NMSC-001, ¶ 53, 126 N.M. 438, 971 P.2d

                                               7
829 (internal quotation marks and citation omitted). This presumption of correctness cannot
be disregarded in this instance. Despite walking the witness right to the line of the
suppressed testimony, this Court can reasonably rely on the district court’s determination
and we are sufficiently persuaded that the prosecutor did not intentionally solicit Officer
Vasquez’s testimony about the purported confession. See Ruiz, 2003-NMCA-069, ¶ 7; see
also Gonzales, 2000-NMSC-028, ¶ 39 (applying “a different analysis to inadmissible
testimony intentionally elicited by the prosecution).

D.      The Purported Confession Error Was Not Harmless

{20} Next, we address whether Officer Vasquez’s testimony about the purported
confession can be overcome by the district court’s curative instruction or could otherwise
be considered harmless error. When a non-constitutional evidentiary error occurs, the
harmless error standard of review only requires reversal if there is a “reasonable probability”
the inadmissible evidence contributed to Defendant’s conviction. See State v. Leyba, 2012-
NMSC-037, ¶ 24, 289 P.3d 1215 (internal quotation marks and citation omitted). Under this
standard of review, a case-by-case analysis is required. See Tollardo, 2012-NMSC-008, ¶
44. Reviewing courts are to evaluate all of the circumstances surrounding the error,
including examining the error itself, the source of the error, the emphasis on the error, and
whether the error was cumulative or introduced new facts. Id. ¶ 43. Evidence of guilt
separate from the error may be relevant but may not be the singular focus in determining
whether the trier of fact was influenced by the error. Id.

{21} In the instant case, the error created by Officer Vasquez’s testimony regarding the
purported confession was not harmless and was proper grounds for reversal and a new trial.
See State v. McClaugherty, 2003-NMSC-006, ¶¶ 27, 32-35, 133 N.M. 459, 64 P.3d 486
(recognizing the improperly admitted hearsay statements that went to a critical and highly
disputed issue at trial were not harmless and warranted a new trial), overruled on other
grounds by Tollardo, 2012-NMSC-008, ¶ 37 n.6. This Court has explained that “confessions
can prejudice ‘the jury’s thinking on certain issues which it might otherwise have been able
to decide objectively.’ ” State v. Hardy, 2012-NMCA-005, ¶ 10, 268 P.3d 1278 (quoting
Proof of the Corpus Delicti Aliunde the Defendant’s Confession, 103 U. Pa. L. Rev. 638, 677
(1955)). Thus, a confession can be highly prejudicial and warrants a close examination of
the circumstances. Here, the confession Officer Vasquez wrongly referenced struck at the
crux of the defense offered at trial—Defendant was not the driver at the time of the collision.
Officer Vasquez’s testimony claiming that a confession occurred, when it never did, not only
undermined Defendant’s overall credibility but provided erroneous corroboration for the
State’s circumstantial evidence regarding who it claimed was driving at the time of the
accident.

{22} Furthermore, Officer Vasquez’s testimony regarding the purported confession
occurred on the afternoon of the first day of trial. The fact that a witness made an improper
reference to a confession so early in the course of trial can be difficult to overcome. See State
v. Gutierrez, 2007-NMSC-033, ¶ 23, 142 N.M. 1, 162 P.3d 156 (concluding that a

                                               8
prejudicial comment made in opening statement “particularly at this stage, is inherently
difficult to overcome”). In addition, after Officer Vasquez made the inappropriate comment,
the district court immediately excused the jury, without providing any sort of instruction,
while the attorneys argued for or against a mistrial. According to the record, the jury was
excused for approximately nine minutes, which is ample time for the reference to a
confession to take root and fester in the jurors’ minds. Only after the jury returned was the
curative instruction offered in an attempt to remedy the inappropriate testimony about the
purported confession.

E.     The District Court’s Curative Instruction Was Insufficient

{23} The district court’s curative instruction was vague and inaccurate. The district court
instructed the jury as follows:

       Ladies and gentlemen, there was an unresponsive statement made by [Officer
       Vasquez] concerning a confession, there was an objection to that statement.
       I have sustained the objection and will strike that statement from the record
       and the jury is instructed to disregard that statement and to not consider it for
       any purpose.

{24} This instruction was not accurate in two respects. First, as discussed above, Officer
Vasquez’s statement was in fact responsive to the prosecutor’s question of what the officer
did next. Officer Vasquez accurately answered the prosecutor with the next sequential act
in his investigation—meeting Agent Gomez outside the interrogation room and addressing
what was obtained during Defendant’s interrogation. Secondly, the district court inaccurately
referenced an objection that was sustained—a technical error that was procedurally incorrect
and factually contrary to what actually occurred on the record. Immediately after Officer
Vasquez’s confession statement, the district court sua sponte excused the jury prior to any
objection or any other statement by defense counsel. Even once the jury was excused,
Defendant did not object to the alleged confession testimony but very specifically moved for
mistrial, and the motion for mistrial is what the parties argued while the jury was excused.
The district court denied the motion for mistrial and decided to use its curative instruction
to the jury. Therefore, two substantive inaccuracies were presented to the jury in the
language of the court’s curative instruction.

{25} Even if this instruction attempted to accurately cure the error made by Officer
Vasquez, it was also vague when it informed the jury of its duty to disregard the improper
comment. See State v. Garcia, 1994-NMCA-147, ¶ 17, 118 N.M. 773, 887 P.2d 767. Telling
the jury to disregard the “unresponsive statement made by the officer concerning a
confession” does not inform the jury that the reason to disregard the statement concerning
a confession was, in fact, because no confession ever occurred. The fact that a confession
never occurred was critical information with regard to the prejudice injected into the trial.
Although the district court may have deliberately made the curative instruction vague to
avoid further emphasis of Officer Vasquez’s improper reference to the purported confession,

                                              9
referencing an objection that never occurred and failing to address the fact that no confession
ever occurred was also error. See id. (stating that “[i]ndeed, the vagueness was probably
intentional, because any direct comment on [the error] posed the risk of emphasizing the
matter to the jury”); see also Gutierrez, 2007-NMSC-033, ¶ 23 (holding that a vague
instruction was insufficient to cure prejudice); State v. Miller, 1966-NMSC-041, ¶ 32, 76
N.M. 62, 412 P.2d 240 (holding that a statutory curative instruction would not sufficiently
remove the improper impression created by a prosecutor’s inappropriate comments regarding
the defendant’s failure to testify). We recognize that the district court was attempting to
address a critical and prejudicial error. Should it tell the jury the truth and re-emphasize the
serious prejudice that Officer Vasquez had created or should it hide the true nature of the
error by misrepresenting the procedural circumstances that required a curative instruction,
as well as the true erroneous nature of the purported confession? These unacceptable choices
regarding accuracy and vagueness only reinforce why Defendant’s motion for a mistrial
should have been granted and could not be cured by the district court’s efforts to use a
curative instruction.

{26} For the foregoing reasons, we are persuaded that there was a reasonable probability
the purported confession and insufficient curative instruction severely prejudiced the jury’s
thinking and contributed to Defendant’s conviction. In addition, a reasonable inference can
be drawn from the circumstances that Officer Vasquez’s testimony was not accidental.
Because the resulting curative instruction was vague and inaccurate, we conclude that the
instruction was insufficient in this case, and the district court abused its discretion when it
failed to grant Defendant’s motion for a mistrial.

II.     No Prosecutorial Misconduct

{27} We next consider whether prosecutorial misconduct occurred such that double
jeopardy bars Defendant’s retrial. Prosecutorial misconduct occurs when prosecutorial
“improprieties had such a persuasive and prejudicial effect on the jury’s verdict that the
defendant was deprived of a fair trial.” State v. Duffy, 1998-NMSC-014, ¶ 46, 126 N.M. 132,
967 P.2d 807, overruled on other grounds by Tollardo, 2012-NMSC-008, ¶ 37 n.6. In
instances of extreme prosecutorial misconduct, double jeopardy may bar a new trial. See
State v. Breit, 1996-NMSC-067, ¶ 2, 122 N.M. 655, 930 P.2d 792. Under Article II, Section
15 of the New Mexico Constitution, retrial is barred where (1) the official misconduct is so
prejudicial that nothing short of mistrial will cure it; (2) “the official knows that the conduct
is improper and prejudicial[;]” and (3) “the official either intends to provoke a mistrial or
acts in willful disregard of the resulting mistrial, retrial, or reversal.” Breit, 1996-NMSC-
067, ¶ 32. “When the prosecutor does not intend to provoke a mistrial, the misconduct
necessary to bar a retrial must be extraordinary.” State v. Haynes, 2000-NMCA-060, ¶ 6, 129
N.M. 304, 6 P.3d 1026 (internal quotation marks and citation omitted). Despite walking a
witness right to the answer that was the proper basis for mistrial, this Court has previously
recognized that remand for a new trial is the appropriate remedy for such an intentional act
by a prosecutor. See Ruiz, 2003-NMCA-069, ¶¶ 11-12.


                                               10
{28} Defendant argues that Officer Vasquez is also part of the prosecution team when
analyzing prosecutorial misconduct that bars retrial. Defendant points out that the State was
twice placed on explicit notice that testimony of a confession risked a mistrial. Although
Defendant specifically recognizes that no authority extends the double jeopardy analysis
regarding prosecutorial misconduct to testifying members of the prosecution team, he asks
this Court to recognize such an extension. The State in response highlights that no double
jeopardy authority extends the prosecutorial misconduct analysis to testifying members of
the prosecution team. The State argues that Officer Vasquez’s testimony was an unsolicited,
non-responsive comment that should not be attributed to the prosecutor.

{29} We agree with the State that, for double jeopardy purposes, New Mexico does not
extend a prosecutorial misconduct analysis to witnesses. While police officers are members
of the prosecution team for the purposes of disclosure of exculpatory evidence, State v.
Wisniewski, 1985-NMSC-079, ¶ 21, 103 N.M. 430, 708 P.2d 1031, this Court has rejected
the concept’s extension to an officer’s comments on a defendant’s constitutional right to
remain silent. See State v. Herrera, 2014-NMCA-007, ¶ 22, 315 P.3d 343. We are not
persuaded by Defendant’s arguments to extend the double jeopardy protection against
prosecutorial misconduct to the State’s witnesses who inject precluded testimony into the
trial. In addition, Defendant failed to provide us with an evidentiary basis clearly attributing
Officer Vasquez’s improper conduct to the intentions of the prosecutor. See Breit, 1996-
NMSC-067, ¶ 2 (recognizing that inherent in the bar on retrial is the prosecutor’s intent to
provoke a mistrial); Haynes, 2000-NMCA-060, ¶ 6 (recognizing that the misconduct must
be extraordinary when the prosecutor does not intend to provoke a mistrial). Here, the
prosecutor mistakenly asked Officer Vasquez an open-ended question, “what was your next
step after that in your investigation?” Officer Vasquez utilized this opportunity to improperly
testify about the purported confession that had been suppressed. As we previously discussed,
the presumption of correctness and reasonable inferences that can be drawn from the district
court’s curative instruction are sufficient to persuade us that the prosecutor did not
intentionally elicit testimony about the purported confession that had been suppressed.
Absent a sufficient record to establish this intent element for prosecutorial misconduct,
double jeopardy does not bar a retrial of Defendant.

III.   Sufficiency of the Evidence to Justify Retrial

{30} Finally, we consider whether the State put forth sufficient evidence to convict
Defendant of the charges and justify a second trial. State v. Consaul, 2014-NMSC-030, ¶ 41,
332 P.3d 850 (noting well-established precedent that “[t]o avoid any double jeopardy
concerns, we review the evidence presented at the first trial to determine whether it was
sufficient to warrant a second trial”). In reviewing the sufficiency of the evidence, this Court
“view[s] the evidence in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.”
State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.

{31}   Defendant argues that the State failed to prove beyond a reasonable doubt that

                                              11
Defendant was actually driving the car at the time of the collision, particularly because
Gonzales’s own conduct implicates him as the driver. Defendant asserts that the remaining
evidence only proves the mere possibility that Defendant drove and is thus insufficient to
overcome the inference that Gonzales was driving. Additionally, Defendant argues there was
insufficient evidence of recklessness. We disagree with Defendant. As this Court must view
the evidence in the light most favorable to the State, disregarding contrary evidence and
inferences, we conclude that there was sufficient evidence to support Defendant’s
convictions. See id.

{32} A rational jury could have found beyond a reasonable doubt that Defendant was the
driver of the Pontiac at the time of the collision. There were two people inside the Pontiac
at the time of the collision, Defendant and Gonzales. Nobody directly saw who was driving
at the time of the accident, and Defendant consistently told witnesses and the investigating
officers that Gonzales was the driver. The jury thus had to infer, from the evidence, which
person inside the Pontiac was driving. Because the jury was free to reject Defendant’s
version of the facts, the contrary evidence and inferences did provide a sufficient factual
basis for the jury to determine that Defendant was the driver at the time of the accident. See
State v. Astorga, 2015-NMSC-007, ¶ 57, 343 P.3d 1245. This evidence includes inconsistent
statements from Defendant as to whether and when Gonzales switched to become the driver.
Evidence was also presented showing that Defendant was observed with injuries on the left
side of his body, and the State’s expert testimony opined that these injuries would be
consistent with Defendant being in the driver’s seat at the time of the accident. The DNA
evidence taken from the vehicle after the accident was negative for Gonzales on the driver’s
side of the Pontiac and negative for Defendant on the passenger’s side of the vehicle. In
addition, when Defendant was audio taped while talking to a visitor at the jail, he was heard
using the first person to describe his actions during the accident, thus also implying that he
was the driver. Viewing all the circumstantial evidence in the light most favorable to the
State, sufficient evidence was presented at trial to convict Defendant of the homicide by
vehicle and great bodily harm by vehicle charges.

{33} As to the sufficiency of the evidence regarding reckless driving and the element of
recklessness, the facts of the collision as well as trial testimony provide sufficient evidence
to conclude that the driver of the Pontiac showed a “willful or wanton disregard of the rights
or safety of others.” Section 66-8-113(A). With another vehicle approaching on a major
interstate at highway speeds, the driver of the Pontiac slowly cut across all lanes of travel
in a nearly horizontal direction, causing the Pontiac to collide with the Smiths’ Suzuki. In
addition, a police officer testified that the Pontiac’s driver was “reckless” when making this
maneuver and used this precise language. Thus, a rational jury could have also found beyond
a reasonable doubt that the Pontiac driver was reckless. Based on the foregoing, sufficient
evidence was presented to support the recklessness element of Defendant’s convictions.

IV.    Defendant’s Remaining Claims of Error

{34}   As a result of our reversal and remand for a new trial, we determine that it is

                                              12
unnecessary for this Court to address any of Defendant’s remaining assertions of error. See
State v. Vallejos, 1994-NMSC-107, ¶ 13, 118 N.M. 572, 883 P.2d 1269.

CONCLUSION

{35} For the reasons stated in this opinion, we reverse Defendant’s convictions for
homicide by vehicle, great bodily harm by vehicle, and reckless driving. We remand for a
new trial consistent with this opinion.

{36}   IT IS SO ORDERED.

                                             ____________________________________
                                             TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge

____________________________________
M. MONICA ZAMORA, Judge




                                            13
