 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
 2   Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                           NO. 29,090

10 WILLIAM PERKINS,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
13 Thomas A. Rutledge, District Judge

14 Gary K. King, Attorney General
15 Andrew S. Montgomery, Assistant Attorney General
16 Santa Fe, NM

17 for Appellee

18 Hugh W. Dangler, Chief Public Defender
19 Will O’Connell, Assistant Appellate Defender
20 Santa Fe, NM

21 for Appellant

22                                 MEMORANDUM OPINION

23 FRY, Chief Judge.

24          Defendant appeals his jury convictions for aggravated driving under the

25 influence of intoxicating liquor, driving on roadways laned for traffic (weaving), and
 1 vehicle entering highway from private road or driveway (unsafe entry). Defendant

 2 raises three issues: (1) ineffective assistance of counsel, (2) reversible error in the

 3 admission of evidence, and (3) cumulative error. We affirm the district court.

 4 BACKGROUND

 5        The convictions arose out of an incident that occurred on February 23, 2008,

 6 when Defendant attracted the notice of an off-duty officer by driving erratically while

 7 pulling out of the parking lot of a bar. After stopping Defendant, the officer observed,

 8 among other things, that a strong odor of alcohol was coming from Defendant’s

 9 vehicle and from his person, that he spoke with a thick tongue, and that his vehicle

10 contained an open container of alcohol. Defendant admitted to drinking a beer

11 immediately before driving, and the officer used a “non-certified” field breath test to

12 determine the presence of alcohol in his breath. When the implied consent card was

13 read to Defendant, he chanted “la la la la la, I can[not] hear you, la la la la la.”

14 Defendant was uncooperative, was placed under arrest, and continued to make

15 inflammatory remarks in the officer’s vehicle.

16        Defendant was charged with aggravated driving under the influence of

17 intoxicating liquor, contrary to NMSA 1978, § 66-8-102(A), (D)(3) (2004) (amended

18 2010); driving on roadways laned for traffic (weaving), contrary to NMSA 1978,

19 § 66-7-317 (1978); and vehicle entering highway from private road or driveway


                                              2
 1 (unsafe entry), contrary to NMSA 1978, § 66-7-331 (1978). At trial, the State

 2 presented the testimony of one witness, the officer who arrested Defendant, and

 3 Defendant did not present any witness in his defense. The jury found Defendant

 4 guilty of all three charges. In accordance with the jury’s verdicts, the district court

 5 imposed a sentence of 364 days, thirty of which were to be served in the county jail

 6 and the remainder under house arrest, with various other terms and conditions.

 7 Defendant filed a timely notice of appeal.

 8 DISCUSSION

 9        On appeal, Defendant argues that his counsel was ineffective and that the

10 cumulative effect of counsel’s errors was so prejudicial that it deprived Defendant of

11 his fundamental right to a fair trial. Defendant also argues that the district court erred

12 in admitting evidence that he had been drinking. Finally, Defendant argues that his

13 conviction should be reversed on the basis of cumulative error. We address each of

14 these issues below.

15 Ineffective Assistance of Counsel

16        Defendant argues that the record demonstrates a prima facie case of ineffective

17 assistance of counsel, requiring that the case be remanded for a hearing to determine

18 whether he is entitled to a reversal of his convictions. We review claims of ineffective

19 assistance of counsel de novo. State v. Boergadine, 2005-NMCA-028, ¶ 33, 137 N.M.


                                               3
 1 92, 107 P.3d 532. “To establish a prima facie case of ineffective assistance of

 2 counsel, [the d]efendant must show that (1) [the] counsel’s performance was deficient

 3 in that it fell below an objective standard of reasonableness; and (2) that [the

 4 d]efendant suffered prejudice in that there is a reasonable probability that, but for

 5 counsel’s unprofessional errors, the result of the proceeding would have been

 6 different.” State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384

 7 (internal quotation marks and citation omitted).

 8        To show deficiency, Defendant must overcome the presumption that counsel’s

 9 conduct was within “the wide range of reasonable professional assistance.” State v.

10 Dylan J., 2009-NMCA-027, ¶ 37, 145 N.M. 719, 204 P.3d 44 (internal quotation

11 marks and citation omitted). If we “can conceive of a reasonable trial tactic which

12 would explain the counsel’s performance,” we should not find ineffective assistance.

13 Id. ¶ 39 (internal quotation marks and citation omitted).

14        A defendant must also affirmatively prove prejudice. State v. Dietrich, 2009-

15 NMCA-031, ¶ 84, 145 N.M. 733, 204 P.3d 748, cert. denied, 2009-NMCERT-002,

16 145 N.M. 704, 204 P.3d 29. “[M]ere evidentiary prejudice is not enough. Counsel’s

17 deficient performance must represent so serious a failure of the adversarial process

18 that it undermines judicial confidence in the accuracy and reliability of the outcome.”

19 State v. Roybal, 2002-NMSC-027, ¶ 25, 132 N.M. 657, 54 P.3d 61.


                                              4
 1        If a prima facie showing of ineffective assistance is made, the Court may

 2 remand the case for an evidentiary hearing if unusual circumstances exist. Dylan J.,

 3 2009-NMCA-027, ¶ 41. However, the general preference is to defer adjudication of

 4 the claim to a habeas corpus proceeding under Rule 5-802 NMRA. Dylan J., 2009-

 5 NMCA-027, ¶ 41.

 6        Defendant claims that (1) counsel’s performance during voir dire was

 7 inadequate, (2) counsel failed to investigate the audio recording of the arrest, (3)

 8 counsel failed to object to improper argument by the prosecutor, and (4) there were

 9 numerous other instances where counsel provided ineffective assistance.

10        Defendant first argues that counsel failed to properly examine or move to strike

11 for cause potential jurors who knew the prosecutor, who had been injured by a drunk

12 driver, who had driven after drinking, or who had been charged with driving under the

13 influence. We are not persuaded.

14        Many of the questions regarding the prospective jurors’ backgrounds and

15 possible sources of bias were covered in the prosecutor’s questions, and defense

16 counsel was not required to go over the same ground a second time. In addition, it is

17 not a sign of ineffectiveness, as Defendant contends, that counsel chose not to

18 challenge several of the jurors who knew the prosecutor or indicated they knew

19 someone who had been injured by a drunk driver. The prospective jurors stated that


                                              5
 1 they would lay aside their prior experience and judge the evidence fairly and without

 2 bias. See State v. Pace, 80 N.M. 364, 367, 456 P.2d 197, 200 (1969) (holding that a

 3 venire member can qualify as a juror if he or she can assert that he or she will lay

 4 aside personal opinions and reach a decision based solely on the law and evidence

 5 presented at trial). Instead of making challenges for cause, defense counsel used

 6 peremptory strikes to exclude several prospective jurors from the jury, including one

 7 who claimed to be “pro law enforcement,” two who were professionally acquainted

 8 with the prosecutor, and one who knew someone who had been killed or injured by

 9 a drunk driver. By striking these jurors, counsel demonstrated an ability to remove

10 jurors that he believed would be biased against Defendant.

11        In addition, Defendant has failed to demonstrate prejudice as a result of

12 counsel’s performance. Defendant has not established that there is “a reasonable

13 probability that, absent the errors, the factfinder would have had a reasonable doubt

14 respecting guilt.” Roybal, 2002-NMSC-027, ¶ 25 (internal quotation marks and

15 citation omitted). Defendant has failed to demonstrate that any of the prospective

16 jurors he objected to was unfair or partial in his or her jury service. See State v. Baca,

17 99 N.M. 754, 755-56, 664 P.2d 360, 361-62 (1983) (holding that the “presence and

18 participation on the jury” of a juror or jury foreperson whose outlook might be




                                               6
 1 affected by a prior relationship or experience does not automatically demonstrate bias

 2 or partiality).

 3        Defendant next argues that counsel was ineffective in not conducting discovery

 4 of the audio recording of the traffic stop leading up to his arrest. Because the batteries

 5 for the officer’s belt microphone were dead on the night of the incident and because

 6 the officer could not recover the back-up digital audio file from his dash-camera video

 7 recording of the incident, Defendant was unable to use the audio recording of the

 8 arrest as evidence. Defendant argues that counsel was ineffective for failing to

 9 discover, prior to trial, that the State’s evidence was defective, and for failing to seek

10 an effective remedy for the lost evidence. The record indicates that the arresting

11 officer believed until the morning of the trial that the video recording contained a

12 functioning audio track and that he could retrieve a back-up audio file from his laptop

13 computer. During an afternoon break, the officer checked his laptop for the audio file

14 and realized that it no longer contained the file for the incident.

15        We conclude that Defendant has failed to establish substandard performance by

16 counsel regarding discovery of the audio recording or resulting prejudice. Counsel

17 moved to dismiss the charges against Defendant on the basis that the audio recording

18 might have been exculpatory and the State lost it. Although the district court denied

19 the motion, it permitted defense counsel to argue the relevance of the lost recording,


                                               7
 1 which he did during the closing argument. The remedies sought by counsel were

 2 appropriate methods of addressing the lost evidence, and Defendant does not

 3 challenge the district court’s denial of his motion to dismiss.

 4        Both the State and defense should have been aware of this problem with the

 5 audio recording prior to trial. However, Defendant made no offer of proof as to what

 6 he believed the audio recording might reveal, and other defects were cured as

 7 mentioned above.

 8        Even if counsel was ineffective in conducting discovery of the audio recording,

 9 Defendant has failed to show resulting prejudice. Defendant took advantage of the

10 remedy offered by the district court whereby the State fully disclosed the loss, counsel

11 cross-examined the arresting officer regarding the circumstances of the loss, and

12 counsel argued in closing the relevance of the missing evidence. State v. Hill, 2008-

13 NMCA-117, ¶ 12, 144 N.M. 775, 192 P.3d 770 (providing two remedies for the state’s

14 deprivation of evidence, including “the admission with full disclosure of the loss and

15 its relevance and import” (internal quotation marks and citation omitted)), cert.

16 quashed, 2009-NMCERT-009, 147 N.M. 423, 224 P.3d 650.

17        Defendant next argues that counsel was ineffective in failing to object to the

18 prosecutor’s closing argument. Specifically, he contends that the prosecutor used an

19 inflammatory line of argument when he recited Defendant’s statements directed


                                              8
 1 toward the arresting officer during the incident. Defendant contends counsel should

 2 have also objected to the prosecutor’s comment that Defendant’s behavior was

 3 “childish” and indicated that he was under the influence of alcohol. We conclude that

 4 counsel may have decided to refrain from objecting as a matter of tactics because such

 5 an objection could properly have been overruled. The prosecutor’s closing argument

 6 was directly related to the claim of driving while intoxicated and was based upon

 7 evidence presented at trial “and the fair and reasonable inferences to be drawn

 8 therefrom.” State v. Duffy, 1998-NMSC-014, ¶ 56, 126 N.M. 132, 967 P.2d 807

 9 (internal quotation marks and citation omitted), modified on other grounds by State

10 v. Gallegos, 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828.

11        Finally, Defendant contends that the cumulative effect of counsel’s failings

12 amounted to ineffective assistance. These other alleged failings include counsel’s

13 admitting that he was not as experienced as the prosecutor, forgetting the name of his

14 client during his opening statement, improperly attempting to impeach the arresting

15 officer with a training manual, improperly encouraging the jury to conduct its own

16 experiments, concluding his argument by referring to his client as “Mr. Guil-,” and

17 apologizing for the fact that the case wasn’t very interesting.

18        We are not persuaded. It appears that counsel was an active participant at the

19 trial and acted vigorously on Defendant’s behalf. See Dietrich, 2009-NMCA-031,


                                              9
 1 ¶¶ 82-83. Defendant cross-examined the State’s witness for over thirty minutes and

 2 was able to elicit concessions from him. Specifically, consistent with the defense

 3 theory that Defendant did not refuse to take a breath test, counsel persuaded the

 4 arresting officer to concede that he could not say whether Defendant heard the reading

 5 of the implied consent card and that he asked Defendant to take a breath test only

 6 once. Although the jury apparently was not persuaded by this theory, counsel

 7 nonetheless “subject[ed] the prosecution’s case to meaningful adversarial testing.”

 8 Id. (internal quotation marks and citation omitted).

 9        Defendant has failed to show that any of counsel’s failings or their cumulative

10 effect establish a prima facie case of ineffective assistance of counsel, much less that

11 Defendant was prejudiced. Defendant, therefore, is not entitled to an evidentiary

12 hearing to further demonstrate prejudice. He is not precluded from filing a petition

13 for habeas corpus.

14 Error in the Admission of Evidence

15        Defendant argues that the district court erred in allowing the arresting officer

16 to testify that an SD-5 field test, a portable breath alcohol testing device, indicated the

17 presence of alcohol because the State presented no testimony that the test was

18 scientifically reliable and valid. In the absence of scientific testimony, the district

19 court allowed the State to use the SD-5 field test to show that alcohol was present in


                                               10
 1 Defendant’s body, but did not allow the specific BAC number produced by the

 2 instrument into evidence. “We review the admission of evidence under an abuse of

 3 discretion standard and will not reverse in the absence of a clear abuse.” State v.

 4 Sarracino, 1998-NMSC-022, ¶ 20, 125 N.M. 511, 964 P.2d 72.

 5        The State argues that it is unclear whether Defendant’s argument was preserved.

 6 There appears to have been a hearing held off the record regarding the admissibility

 7 of the evidence, and based on the fact that the district court did not allow the specific

 8 BAC number into evidence, we conclude that counsel is likely to have made some

 9 objection regarding the lack of foundational evidence as to the SD-5 test’s scientific

10 reliability. It therefore appears that Defendant has generally preserved the claim such

11 that we will address it.

12        In State v. Morales, this Court held “that the [s]tate must prove the scientific

13 reliability of a drug field test in a manner consistent with the Daubert/Alberico

14 standard, if it wishes to use the results of that test at trial to identify a controlled

15 substance.” 2002-NMCA-052, ¶ 1, 132 N.M. 146, 45 P.3d 406. Furthermore,

16 “testimony by a law enforcement officer will not, without more, be sufficient to

17 support admission of the results, when the officer cannot explain the scientific

18 principles that the test uses.” Id. ¶ 23. Pursuant to NMSA 1978, § 66-8-107(B)

19 (1993), breath tests must be approved by the scientific laboratory division (SLD), and


                                              11
 1 7.33.2.7(G) NMAC (4-30-2010) requires that all breath alcohol instruments be

 2 “approved and individually certified” by the SLD. The SD-5 instrument is not

 3 certified, and the record does not indicate that the State made a foundational showing

 4 to support the officer’s testimony.

 5         Because the State failed to prove the scientific reliability of the test or lay the

 6 proper foundation for the admission of the evidence, we hold that the field test results

 7 were improperly admitted into evidence. However, that error was harmless. See State

 8 v. Barr, 2009-NMSC-024, ¶ 47, 146 N.M. 301, 210 P.3d 198 (explaining that

 9 evidence admitted in violation of evidentiary rules is grounds for a new trial only

10 when the error is not harmless). In making this determination, we consider three

11 factors: “(1) whether there is substantial evidence to support the conviction without

12 reference to the improperly admitted evidence; (2) whether there is such a

13 disproportionate volume of permissible evidence that, in comparison, the amount of

14 improper evidence appears so minuscule that it could not have contributed to the

15 conviction; and (3) whether there is substantial conflicting evidence to discredit the

16 [s]tate’s testimony.” Morales, 2002-NMCA-052, ¶ 24. Finally, a “non-constitutional

17 error is reversible only if the reviewing court is able to say, in the context of the

18 specific evidence presented at trial, that it is reasonably probable that the jury’s verdict

19 would have been different but for the error.” Barr, 2009-NMSC-024, ¶ 54. W                e


                                                12
 1 conclude that the error here was harmless because the improperly admitted testimony

 2 did nothing more than reiterate the uncontroverted fact that there was an unspecified

 3 amount of alcohol in Defendant’s body. See State v. Casillas, 2009-NMCA-034, ¶¶

 4 44-45, 145 N.M. 783, 205 P.3d 830, cert. denied, 2009-NMCERT-003, 146 N.M. 603,

 5 213 P.3d 507 (finding the improper admission of evidence of cash register shortages

 6 at the defendant’s place of employment harmless because the defendant had already

 7 admitted the fact of the shortages). The arresting officer testified to Defendant’s

 8 admission to drinking a beer immediately before driving his vehicle, and both

 9 attorneys acknowledged that fact in closing arguments.             Because there was

10 uncontradicted evidence that Defendant had consumed alcohol prior to the stop, it is

11 not reasonably probable that the jury’s verdict would have been different but for the

12 improper admission of the SD-5 evidence. See Casillas, 2009-NMCA-034, ¶ 46.

13 Cumulative Error

14        Defendant’s final argument is that his conviction should be reversed on the

15 basis of cumulative error. “The doctrine of cumulative error requires reversal when

16 a series of lesser improprieties throughout a trial are found, in aggregate, to be so

17 prejudicial that the defendant was deprived of the constitutional right to a fair trial.”

18 Duffy, 1998-NMSC-014, ¶ 29.




                                              13
1        Because we conclude that Defendant’s trial counsel’s defense was not

2 inadequate, the only error that can be cumulated is the admission of the breath test

3 results. Having already held this error to be harmless, we hold that Defendant was not

4 deprived of a fair trial under the doctrine of cumulative error.

5 CONCLUSION

6        For the reasons stated above, we affirm Defendant’s convictions.

7        IT IS SO ORDERED.



8
9                                         CYNTHIA A. FRY, Chief Judge

10 WE CONCUR:


11
12 RODERICK T. KENNEDY, Judge



13
14 LINDA M. VANZI, Judge




                                            14
