 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: ___________

 3 Filing Date: June 6, 2017

 4 NO. 33,985

 5 STATE OF NEW MEXICO,

 6        Plaintiff-Appellee,

 7 v.

 8 ZACKARY A. MONTGOMERY,

 9        Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
11 Angie K. Schneider, District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   Tonya Noonan Herring, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17 Law Offices of Nancy L. Simmons P.C.
18 Nancy L. Simmons
19 Albuquerque, NM

20 for Appellant
 1                                        OPINION

 2 GARCIA, Judge.

 3   {1}   Defendant Zackary Montgomery was tried and convicted of driving while

 4 under the influence of intoxicating liquors, child abuse negligently caused, and no

 5 seat belts. Defendant argues on appeal that a series of actions by the State during trial

 6 constituted prosecutorial misconduct, including the State’s injection of facts not

 7 supported by the evidence during its closing argument. We agree that the misconduct

 8 by the prosecutor during trial and closing argument was sufficiently egregious as to

 9 constitute reversible error. We need not reach Defendant’s other proffered examples

10 of prosecutorial misconduct or other arguments regarding ineffective assistance of

11 counsel. Defendant was deprived of a fair trial. Therefore we reverse and remand for

12 a new trial.

13 BACKGROUND

14   {2}   On August 4, 2013, at approximately 5:17 p.m., New Mexico State Police

15 Sergeant Marc Davis conducted a traffic stop on Defendant’s vehicle after observing

16 that Defendant and the front seat passenger, Defendant’s brother, were not wearing

17 seat belts. At trial, Sergeant Davis testified as the arresting officer. He stated that

18 upon approaching the vehicle, he recognized Defendant. After advising Defendant

19 of the reason for the stop, Sergeant Davis returned to his vehicle to issue the citations
 1 and discovered that Defendant had an outstanding warrant for his arrest out of

 2 Ruidoso, New Mexico. Sergeant Davis observed Defendant and Defendant’s vehicle

 3 during the seven minutes he was in his unit writing the citations. Sergeant Davis then

 4 issued the citations—first to the passenger, then to Defendant—and advised

 5 Defendant of his outstanding warrant. Sergeant Davis further noticed that there were

 6 children in the back seat of the van that were not properly restrained for which he

 7 issued Defendant a verbal warning. Shortly thereafter, Defendant’s grandparents

 8 drove up, and Sergeant Davis explained to Defendant’s grandmother that Defendant

 9 would be placed under arrest. Sergeant Davis then had Defendant get out of the

10 vehicle and placed him under arrest for his outstanding warrant. Defendant became

11 agitated and refused Sergeant Davis’s offer to arrest him out of the sight of the

12 children, who were still inside the vehicle.

13   {3}   Sergeant Davis testified that he had concerns about Defendant’s behavior so

14 Sergeant Davis quickly patted down Defendant, cuffed him, and put him into the back

15 of his police unit. Sergeant Davis then smelled alcohol coming from the back of his

16 unit. He told Defendant he could smell alcohol, but Defendant made no comment in

17 response. Sergeant Davis further testified that because Defendant was “volatile” in

18 their prior dealings, he decided to call another officer to conduct field sobriety tests

19 on Defendant at the police station. Officer Hoover administered three standardized


                                              2
 1 field sobriety tests at the station, and Defendant performed poorly on these tests.

 2 Defendant consented to take a breath alcohol test, the results of which registered

 3 blood alcohol content (BAC) readings of .12 and .13. Defendant was charged with

 4 driving while under the influence of intoxicating liquor, fourth offense, pursuant to

 5 NMSA 1978, Section 66-8-102(A), (G) (2010, amended 2016), or in the alternative,

 6 having an alcohol concentration of eight one-hundredths (.08) or more in his breath

 7 or blood within three hours of operating a motor vehicle, pursuant to Section 66-8-

 8 102(C), (G). Defendant was also charged with negligent child abuse, no death or great

 9 bodily harm, pursuant to NMSA 1978, Section 30-6-1(D) (2009), and not wearing

10 seat belts, pursuant to NMSA 1978, Section 66-7-372(A) (2001).

11   {4}   The following excerpts and arguments are relevant to this appeal. The State

12 elicited testimony from Sergeant Davis regarding the “concept of peak.” Sergeant

13 Davis described “peak” as your “maximum level of absorption [of alcohol] at that

14 given time.” Defense counsel objected that Sergeant Davis was not qualified as an

15 expert in alcohol absorption rates, and the State responded that it would only ask

16 some “general questions.” Sergeant Davis went on to testify as to the factors that

17 would affect a person’s BAC. Later, on re-direct, the State asked Sergeant Davis, “is

18 it at all possible for someone to drink two shots of liquor and blow .12 forty minutes

19 later?” Defendant again objected, and the district court sustained the objection.


                                             3
 1   {5}   Defendant testified that on the day he was arrested, he was on his way to a

 2 birthday party for his daughter but did not have any alcohol to drink prior to being

 3 pulled over. Defendant bought alcohol for the party about twenty minutes before the

 4 stop, and it was located inside the car. When Sergeant Davis returned to his squad car,

 5 Defendant drank two fifty milliliter shots of liquor from the alcohol he had just

 6 purchased because he was worried about missing his daughter’s birthday and knew

 7 he had an outstanding warrant for his arrest. On cross-examination, the State asked

 8 Defendant, “you’re trying to tell this jury that by taking two shots of alcohol you can

 9 manage to get to [a BAC of] .12 forty some minutes later?” Defendant responded,

10 “I’m not educated in that matter,” and the prosecutor commented, “didn’t figure that

11 part out did you?” Defense counsel objected that the prosecutor’s statement was

12 argumentative, and the district court sustained as to the prosecutor’s last comment.

13 Defendant’s brother also testified that Defendant grabbed shots and drank them while

14 they were waiting for Sergeant Davis to return to their vehicle.

15   {6}   In its closing argument, the State urged the jury to consider whether

16 Defendant’s testimony was “believable,” whether he was “truthful or untruthful,” and

17 whether his story was reasonable. When the prosecutor told the jury that Defendant’s

18 theory of the case was that he drank “two shots of alcohol and that led to a BAC of

19 .12 or .13,” defense counsel objected and asked to approach. Defense counsel


                                              4
 1 objected to any argument that would amount to unsworn testimony as to what amount

 2 of alcohol would lead to that level of BAC. The district court overruled Defendant’s

 3 objection. The prosecutor continued, telling the jury, “Defendant claims [he] had two

 4 shots of alcohol and that led [him] to a .12/.13. Absolutely impossible, absolutely a

 5 lie, absolutely more than incredible, . . . couldn’t happen under any set of

 6 circumstances, that’s his story.”

 7   {7}   The prosecutor then pointed out that 0.12 is 150% higher than the legal limit

 8 and went on to ask the jury to analyze Defendant’s behavior and demeanor during the

 9 traffic stop as a symptom of “poor judgment” or as a symptom of the fact that he had

10 been “drinking all day.” Defense counsel objected that there was no evidence

11 Defendant had been drinking all day, the prosecutor’s statements were “way outside

12 the record,” and requested that the district court give an instruction to disregard.

13 Again, the district court overruled the objection, stating that the prosecutor’s

14 comments were permissible argument. The prosecutor continued, stating,“two drinks

15 do not equal .12, period. End of story. That suggests quite a bit of consumption of

16 alcohol. End of story.”

17   {8}   The jury found Defendant guilty of: (1) child abuse, (2) driving under the

18 influence of intoxicating liquors and/or drugs, and (3) no seat belts. This appeal

19 followed.


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 1 DISCUSSION

 2   {9}    On appeal, Defendant submits two arguments. First, Defendant argues that a

 3 series of questions and statements by the prosecutor constituted prosecutorial

 4 misconduct and resulted in cumulative error. Second, Defendant argues that his

 5 attorney provided ineffective assistance of counsel and that the district court’s denial

 6 of Defendant’s motion to re-open his case denied him a fair trial. We hold that the

 7 State’s injection of facts and argument not supported by the evidence, scientific or

 8 otherwise, constituted prosecutorial misconduct warranting reversal. As such, we

 9 need not address whether Defendant’s assertions of other specific instances of

10 prosecutorial misconduct also support reversal. Because we reverse and remand for

11 a new trial, we do not address Defendant’s ineffective assistance of counsel argument.

12   {10}   When a defendant has preserved, by a timely objection, an issue of

13 prosecutorial misconduct, we review for “abuse of discretion[,]” State v. Stills, 1998-

14 NMSC-009, ¶ 49, 125 N.M. 66, 957 P.2d 51, because the district court is “in the best

15 position to evaluate the significance of any alleged prosecutorial errors.” State v.

16 Duffy, 1998-NMSC-014, ¶ 46, 126 N.M. 132, 967 P.2d 807, overruled on other

17 grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.

18   {11}   “Our ultimate determination of this issue rests on whether the prosecutor’s

19 improprieties had such a persuasive and prejudicial effect on the jury’s verdict that


                                              6
 1 the defendant was deprived of a fair trial.” Duffy, 1998-NMSC-014, ¶ 46.

 2 Prosecutorial misconduct may be the result of a single incident so egregious that it

 3 may, standing alone, rise to the level of fundamental error. Id. ¶ 47. “If, during the

 4 course of trial, a prosecutor engages in more than one instance of misconduct, it is not

 5 necessary for review that the defendant object every time if the cumulative effect of

 6 such improper conduct by the prosecutor denies him a fair trial.” State v. Diaz, 1983-

 7 NMCA-091, ¶ 4, 100 N.M. 210, 668 P.2d 326.

 8   {12}   Defendant argues that the cumulative effect of the claimed acts of prosecutorial

 9 misconduct ultimately contributed to an unfair trial. Defendant claims that the

10 primary examples of misconduct were: (1) “the State’s injection of facts unsupported

11 by the evidence [at] trial,” (2) “the State’s introduction of Defendant’s post-arrest

12 silence,” and (3) “the State’s characterization of Defendant as [a thug and a liar].”

13 The State’s Arguments and Reliance on Facts Unsupported by the Evidence

14   {13}   During closing arguments, “remarks by the prosecutor must be based upon the

15 evidence or be in response to the defendant’s argument.” State v. Smith,

16 2001-NMSC-004, ¶ 38, 130 N.M. 117, 19 P.3d 254. “It is misconduct for a prosecutor

17 to make prejudicial statements not supported by evidence.” Duffy, 1998-NMSC-014,

18 ¶ 56. However, “[s]tatements having their basis in the evidence, together with

19 reasonable inferences to be drawn therefrom, are permissible and do not warrant


                                                7
 1 reversal.” State v. Herrera, 1972-NMCA-068, ¶ 8, 84 N.M. 46, 499 P.2d 364 (internal

 2 quotation marks and citation omitted). Our Supreme Court has identified three factors

 3 “to consider when reviewing questionable statements made during closing arguments

 4 for reversible error: (1) whether the statement invades some distinct constitutional

 5 protection; (2) whether the statement was isolated and brief, or repeated and

 6 pervasive; and (3) whether the statement was invited by the defense.” State v. Torres,

 7 2012-NMSC-016, ¶ 10, 279 P.3d 740 (alterations, internal quotation marks, and

 8 citation omitted). These factors are only meant to be useful guidelines and the context

 9 in which the statement was made is the paramount consideration. Id. “Where evidence

10 of guilt is overwhelming, or an improper statement is corrected by counsel or the

11 court, reversible error is less likely. If a case turns on a crucial fact that is improperly

12 manipulated in closing, or if counsel persists when admonished to desist, the

13 probability of error is greater.” State v. Sosa, 2009-NMSC-056, ¶ 34, 147 N.M. 351,

14 223 P.3d 348. “When these considerations lead to a conclusion that the comments

15 materially altered the trial or likely confused the jury by distorting the evidence, the

16 [s]tate has deprived the defendant of a fair trial, and reversal is warranted.” Torres,

17 2012-NMSC-016, ¶ 10 (internal quotation marks and citation omitted).

18   {14}   Defendant argues that the State improperly relied upon facts unsupported by

19 the evidence admitted at trial and the prosecutor made repetitious improper and


                                                8
 1 unsupported comments in closing as a substitute for non-existent expert testimony.

 2 We agree.

 3   {15}   At trial, the State was barred from soliciting a response by Sergeant Davis from

 4 the question it posed regarding the relationship between Defendant’s BAC and the

 5 number of drinks Defendant consumed prior to testing. Nonetheless, the State

 6 repeatedly argued this point to the jury during closing argument. The prosecutor made

 7 multiple comments in his closing argument that the amount Defendant testified to

 8 drinking could not have resulted in the tested BAC of .12/.13 forty minutes later.

 9 Arguments such as “absolutely impossible, . . . couldn’t happen under any set of

10 circumstances, that’s historic” and “two drinks do not equal .12, period” did not have

11 any factual basis in the evidence.

12   {16}   The State argues that these statements were merely arguments attacking the

13 veracity of Defendant’s testimony and suggestions from which the jury might draw

14 reasonable inferences. We disagree. The State attempted to inject scientific facts that

15 were not in evidence regarding a subject matter that would have required qualified

16 expert opinion testimony. See Rule 11-703 NMRA (providing foundation

17 requirements for expert testimony in the form of an opinion); State v. Armijo, 2014-

18 NMCA-013, ¶¶ 7, 18, 316 P.3d 902 (reversing a driving while intoxicated conviction

19 because the officer was not qualified to give his opinion regarding the amount of


                                               9
 1 alcohol a defendant must have consumed in order to produce breath scores of

 2 .06/.05).

 3   {17}   In Armijo, the officer was asked at trial whether the defendant’s BAC scores

 4 of .06 and .05 were consistent with the defendant’s admission of having consumed

 5 only one beer—to which the officer responded, “no, sir[.]” 2014-NMCA-013, ¶ 5.

 6 This Court determined that the prosecutor’s questioning of the officer was an attempt

 7 to elicit an “unqualified and inadmissible opinion” on the defendant’s breath scores.

 8 Id. ¶ 12. This Court held there was reversible error in Armijo due to the improperly

 9 admitted evidence. Id. ¶ 18. In Armijo, although this Court reversed on the issue of

10 prejudice resulting from the improperly admitted evidence, id. ¶¶ 7, 12-18, the logic

11 and reasoning we applied is equally applicable to Defendant’s prosecutorial

12 misconduct argument in this case.

13   {18}   The prosecutor’s comments, regarding the correlation between Defendant’s

14 BAC and the amount of alcohol Defendant testified to drinking after the traffic stop,

15 constituted baseless references to an expert opinion that was only compounded by the

16 district court’s prior refusal to admit Sergeant Davis’s unqualified testimony on this

17 specific issue. See id. ¶ 7. Whether Defendant consumed only the amount of alcohol

18 stated in testimony or instead had been driving while under the influence of alcohol

19 prior to the stop, was a crucial determination to be made by the jury. The district court


                                              10
 1 specifically rejected the State’s efforts to admit evidence correlating the amount of

 2 alcohol consumed by Defendant to a BAC test score. Without a factual basis or other

 3 qualified scientific foundation to admit such evidence at trial, we can reasonably

 4 conclude that the prosecutor’s numerous comments about the correlation between

 5 Defendant’s alcohol consumption and any resulting BAC test results were

 6 intentionally made to sway the jury and improperly tip the balance in favor of the

 7 State. See id. ¶ 12; see also State v. Marquez, 2009-NMSC-055, ¶ 23, 147 N.M. 386,

 8 223 P.3d 931 (“In a DWI trial, the improper admission of scientific evidence

 9 indicating that [the d]efendant was legally intoxicated at the time of driving will

10 almost certainly tip the balance in favor of the [s]tate.” (omission, internal quotation

11 marks, and citation omitted)), overruled on other grounds by Tollardo,

12 2012-NMSC-008, ¶ 37 n.6. The State’s improper attempt to discredit Defendant’s

13 testimony interfered with the jury’s role to weigh the evidence, determine the

14 credibility of the witnesses, and fairly assess the defense offered at trial. See Sosa,

15 2009-NMSC-056, ¶ 34 (“[T]he common thread running through . . . cases finding

16 reversible error is that the prosecutors’ comments materially altered the trial or likely

17 confused the jury by distorting the evidence, and thereby deprived the accused of a

18 fair trial.”); see also Duffy, 1998-NMSC-014, ¶ 56 (“It is misconduct for a prosecutor

19 to make prejudicial statements not supported by evidence.”).


                                              11
 1   {19}   We are persuaded that the prosecutor’s manipulation and repetitive arguments

 2 regarding a critical scientific fact not admitted into evidence was so egregious that it

 3 denied Defendant a fair trial. See Armijo, 2014-NMCA-013, ¶ 16 (recognizing a

 4 reasonable probability that the officer’s unqualified opinion testimony “could have

 5 induced the jury’s verdict” even where “the admissible evidence . . . could have

 6 supported either a conviction or an acquittal, since a reasonable jury could have

 7 returned either verdict” (internal quotation marks and citation omitted)); State v.

 8 Garvin, 2005-NMCA-107, ¶¶ 37-38, 138 N.M. 164, 117 P.3d 970 (reversing and

 9 remanding for a new trial where the evidence of guilt was not overwhelming and the

10 prosecutor’s misstatement of the facts and cumulative conduct “rose to a level which

11 deprived [the d]efendant of a fair trial”). As a result, we hold that the district court

12 abused its discretion when it allowed the prosecutor to make critical comments, both

13 during the trial and closing arguments, regarding a correlation between Defendant’s

14 alcohol consumption and resulting BAC test results.

15 CONCLUSION

16   {20}   For the foregoing reasons, we reverse Defendant’s three convictions and

17 remand for a new trial.




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1   {21}   IT IS SO ORDERED.

2                               __________________________________
3                               TIMOTHY L. GARCIA, Judge

4 WE CONCUR:


5 ___________________________________
6 LINDA M. VANZI, Chief Judge


7 ___________________________________
8 JAMES J. WECHSLER, Judge




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