                                                          I attest to the accuracy and
                                                           integrity of this document
                                                             New Mexico Compilation
                                                           Commission, Santa Fe, NM
                                                          '00'05- 16:03:22 2014.01.23
Certiorari Granted, December 20, 2013, No. 34,400

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2014-NMCA-013

Filing Date: October 8, 2013

Docket No. 32,139

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

EDWARD ARMIJO,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Acting Chief Public Defender
Vicki W. Zelle, Assistant Appellate Defender
Albuquerque, NM

for Appellant

                                          OPINION

FRY, Judge.

{1}     Defendant Edward Armijo appeals his first-offense conviction for driving under the
influence of intoxicating liquor (DWI) entered by the metropolitan court and subsequently
affirmed by the district court following on-record review. In this appeal, Defendant asserts
four theories of trial error, including error in jury selection, in the admission of hearsay, in

                                               1
the admission of improper opinion testimony, and cumulative error. Having reviewed the
metropolitan court proceedings, we agree that—in the specific context of this case—there
is a reasonable probability that the jury’s verdict may have been induced by the unqualified
opinion testimony of a witness for the State. We therefore reverse on that basis. Because
the remaining issues are unlikely to recur on remand, we express no opinion on the other
errors claimed by Defendant.

BACKGROUND

{2}      Defendant was tried pursuant to a criminal complaint charging him with DWI,
speeding, and failure to maintain a traffic lane. Because the jury acquitted him of failing to
maintain a traffic lane and Defendant does not appeal his conviction for speeding, only the
conviction for DWI is at issue in this appeal. With regard to that charge, the State’s evidence
at trial consisted of the results of a breath alcohol test and the testimony of two police
officers. The State’s first witness, Officer Eric Hammon, testified that he used radar to
determine that Defendant was driving forty-five miles per hour on a road with a posted speed
limit of thirty-five miles per hour. Officer Hammon also saw Defendant’s car drift to the
right within his lane so that the passenger-side tires of his car touched the right-hand lane
line. Officer Hammon pulled Defendant over for speeding and failure to maintain his lane.
Officer Hammon testified that when he approached the car, Defendant was behind the wheel,
there were two passengers in the car, and he “could smell the distinct odor of an alcoholic
beverage emitting from him.” Officer Hammon also testified that Defendant’s eyes were
“bloodshot and watery,” that he “could detect some slurring of his speech,” and that
Defendant reported having had “one beer earlier in the evening.”

{3}     Officer Hammon called for a DWI unit to continue the investigation. Officer Marisa
Martinez arrived ten minutes later to conduct a DWI investigation. Officer Martinez was
the State’s second witness. She testified that Defendant’s eyes were bloodshot and watery,
that she noticed an odor of alcohol, and that the Defendant told her he had a beer ten minutes
before he was pulled over. Officer Martinez then administered three field sobriety tests: a
horizontal gaze nystagmus test, a walk-and-turn test, and a one-leg-stand test. Defendant
performed the horizontal gaze nystagmus test as instructed. The walk-and-turn test required
Defendant to walk in a straight line for nine steps with his hands at his sides while touching
heel-to-toe, to turn around, and to walk back in a similar fashion. In performing that test,
Defendant missed touching his heel to his toes twice, did not turn in the way Officer
Martinez instructed, and once raised his arms from his sides. The one-leg-stand test required
Defendant to raise one foot six inches off the ground and maintain that pose while counting
out loud for thirty seconds. Officer Martinez testified that, while doing so, Defendant “was
swaying while balancing and he raised his arms for balance.”

{4}     Officer Martinez determined that Defendant “was showing the signs of impairment,”
handcuffed him, and took him to the transport center to test his breath alcohol content.
Officer Martinez tested two breath samples and the breath card showing the test results was
admitted into evidence at trial. That card showed Defendant’s breath scores for the two

                                              2
samples to be .06 and .05 grams per 210 liters of breath. At the close of Officer Martinez’s
direct examination, the State asked her whether .06 and .05 are “a particularly high breath
score,” before rephrasing the question to, “is that breath score over the legal limit?”
Defendant’s objection to that question was sustained, and the State passed the witness to the
defense.

{5}     Defendant then cross-examined Officer Martinez and the State conducted a re-direct
examination. At the end of that re-direct examination, the State returned to the topic of
Defendant’s breath alcohol content, asking with regard to his breath scores of .06 and .05,
“what does that indicate to you?” Defendant’s objection to that question was sustained, and
the State asked “is a .06/.05 consistent with [D]efendant’s admission of one beer?” Officer
Martinez answered “no, sir,” and the State followed up with the question “is a .06/.05
consistent with more than one beer?” Defendant objected again, the objection was again
sustained, and the court instructed the jury “you are to disregard the line of questioning.”

{6}    When the State then rested, Defendant moved for a directed verdict on all charges,
which was denied except as to driving with a blood or breath alcohol content of .08 or more.
See NMSA 1978, § 66-8-102(C)(1) (2008) (defining per se DWI). Defendant then rested.
The jury ultimately returned its verdict acquitting Defendant of failure to maintain a traffic
lane and convicting on the charges of speeding and driving under the influence. Defendant
appealed to the district court, which affirmed, and this appeal follows.

DISCUSSION

{7}     Defendant argues that Officer Martinez’s assessment of his breath alcohol content
results was “unqualified opinion testimony” that constituted “incurable error.” Defendant
is correct that Officer Martinez’s opinion regarding the amount of alcohol he must have
consumed in order to produce breath scores of .06/.05 was inadmissible. The State’s
questions regarding whether those scores suggested that Defendant had consumed “one beer”
or “more than one beer” sought opinion testimony for which no foundation was laid at trial.
See Rule 11-703 NMRA (providing foundation requirements for expert testimony in the
form of an opinion). Without such a foundation, the witness was not qualified to offer her
opinion on the matter. See State v. Alberico, 1993-NMSC-047, ¶¶ 41-54, 116 N.M. 156, 861
P.2d 192.

{8}      In response, the State asserts that the testimony at issue amounts to no more than
harmless error, specifically relying upon the metropolitan court’s admonishment to the jury
that it should “disregard this line of questioning.” Notably, the State neither argues that the
questions asked were proper nor suggests how any answers Officer Martinez gave to those
questions could possibly have been admissible. Instead, the State claims that “[t]he trial
judge’s immediate curative instruction remedied the prosecution’s isolated improper
question and Officer Martinez’s answer.”

{9}    It is true that, “[g]enerally, a prompt admonition from the court to the [j]ury to

                                              3
disregard and not consider inadmissible evidence sufficiently cures any prejudicial effect
which might otherwise result.” State v. Newman, 1989-NMCA-086, ¶ 19, 109 N.M. 263,
784 P.2d 1006 (emphasis added). However, where “inadmissible testimony [is] intentionally
elicited by the prosecution,” the general rule does not apply and, “regardless of whether a
trial court admonishes the jury not to consider the testimony, [appellate courts] must
determine whether there is a reasonable probability that the improperly admitted evidence
could have induced the jury’s verdict.” 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; accord State v. Ruiz, 2003-NMCA-069, ¶ 6, 133 N.M. 717, 68 P.3d 957;
see also State v. Saavedra, 1985-NMSC-077, ¶ 13, 103 N.M. 282, 705 P.2d 1133 (holding
that admonitory instruction could cure intentionally elicited testimony only in the absence
of a reasonable probability that inadmissible evidence induced the verdict), abrogated on
other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783; cf. State
v. Bartlett, 1981-NMCA-019, ¶ 18, 96 N.M. 415, 631 P.2d 321 (finding prosecutor’s facially
improper question to be “prejudicial error and no attempt to admonish the jury to forget the
question could possibly erase the effects”).

{10} Thus, before determining that a curative instruction has cured what would otherwise
be error, we must consider whether the offending testimony was unsolicited or was, instead,
elicited by the State. In State v. Vialpando, the trial court’s offer to give an admonitory
instruction to the jury was deemed to have cured the improper testimony of a witness who
was asked when he had first met the defendant and who responded, “when he was in the
State Penitentiary.” 1979-NMCA-083, ¶ 21, 93 N.M. 289, 599 P.2d 1086. On appeal, this
Court acknowledged that such testimony would require a mistrial if “deliberately induced
through questioning by the prosecutor who intended that the objectionable response be made
by the witness.” Id. ¶ 23. In that case, however, “the witness’s response was totally
unexpected by the court and the attorneys.” Id. As a result, the error was curable by way
of instruction, and not so prejudicial as to require a new trial. Id. ¶ 25. In so holding, this
Court was “especially mindful of the lack of any improper motive preceding the witness’s
unprompted utterance.” Id. ¶ 27.

{11} In contrast, similar testimony was considered sufficiently prejudicial to require a new
trial in Saavedra. In that case, a witness who was asked how long he had known the
defendant responded “[s]ince he got out of the penitentiary.” 1985-NMSC-077, ¶ 8. On
appeal, our Supreme Court noted that the prosecutor had asked an identical question of the
same witness at a grand jury hearing and received “an almost identical answer.” Id. ¶ 9.
Thus, the Court noted that—unlike in Vialpando—a “lack of improper motive” could not be
presumed in Saavedra, and the Court conducted a review for harmless error, ultimately
concluding that a new trial was required. 1985-NMSC-077, ¶ 12. This requirement that
appellate courts review for prejudice, notwithstanding a curative instruction, rests upon the
sound policy that the prosecution should not be permitted to rely upon a trial court’s curative
instruction to remove the taint of incompetent evidence that it has intentionally placed before
a jury. As has often been noted in similar circumstances:


                                              4
       When the error is exposed on appeal, it is met by the stereotyped argument
       that it is not apparent it in any wise influenced the minds of the jury. The
       reply the law makes to such suggestion is: that, after injecting it into the case
       to influence the jury, the prosecutor ought not to be heard to say, after he has
       secured a conviction, it was harmless[.]

State v. Frank, 1979-NMSC-012, ¶ 26, 92 N.M. 456, 589 P.2d 1047 (internal quotation
marks and citation omitted).

{12} In this case, the State drew repeated objections to questions intended to elicit Officer
Martinez’s unqualified and inadmissible opinion regarding the significance of Defendant’s
breath scores of .06/.05. On appeal, the State makes no attempt to justify the questions and,
having reviewed the proceedings below, we can identify no proper purpose for those
questions. Thus, the question of whether Defendant was prejudiced by Officer Martinez’s
improper testimony cannot be answered simply by relying upon the metropolitan court’s
curative instruction; instead, we must actually determine—in the particular context of this
case—whether that inadmissible testimony was prejudicial or harmless.

{13} For purposes of harmless error review, violations of the rules of evidence are non-
constitutional error. State v. Marquez, 2009-NMSC-055, ¶ 20, 147 N.M. 386, 223 P.3d 931.
Thus, the error at issue in this case can be deemed harmless only if “there is no reasonable
probability the error affected the verdict.” Tollardo, 2012-NMSC-008, ¶ 36 (emphasis,
internal quotation marks, and citation omitted). As recently explained by our Supreme
Court, “harmless error review necessarily requires a case-by-case analysis . . . [of] whether
the guilty verdict actually rendered in this trial was surely unattributable to the error.” Id.
¶ 44 (internal quotation marks and citation omitted). In determining whether the
impermissible evidence contributed to Defendant’s conviction, we must “evaluate all of the
circumstances surrounding the error.” Id. ¶ 43. Those circumstances include “the error itself
. . . includ[ing] an examination of the source of the error and the emphasis placed upon the
error,” as well as the properly admitted evidence, at least to the extent such evidence
provides “context for understanding how the error arose and what role it may have played
in the trial proceedings.” Id.

{14} Because there was no dispute that Defendant was driving a car, the only contested
fact for the jury to decide with regard to the conviction here appealed was whether he was
impaired by alcohol while doing so. As the jury was instructed at trial, it was to determine
whether “as a result of drinking liquor the defendant was less able to the slightest degree,
either mentally or physically, or both, to exercise the clear judgment and steady hand
necessary to handle a vehicle with safety to the person and the public.” See UJI 14-4501
NMRA. The State’s evidence relevant to such a finding consisted of the breath alcohol
content test results as well as the officers’ testimony regarding speeding, bloodshot eyes,
slurred speech, the odor of alcohol, and Defendant’s performance on the field sobriety tests.

{15}   On appeal, Defendant points out that much of the evidence typically introduced in

                                              5
a DWI case was not present in this case. For instance, when Officer Hammon pulled him
over for speeding, Defendant promptly and properly stopped his car. He was also
cooperative and behaved appropriately throughout his encounters with both Officer Hammon
and Officer Martinez. He displayed no signs of impairment while getting out of his car and
walking with Officer Martinez to the area in which she conducted the field sobriety tests.
Defendant also points out that once Officer Martinez began the field sobriety tests, he
performed the horizontal gaze nystagmus test as instructed and performed the other tests
with only minor errors. And, finally, he agreed to submit to a chemical test that established
his breath alcohol content at only a .06/.05.

{16} Taken as a whole, the evidence introduced at trial was the type of evidence that is
generally sufficient to support a conviction under the “impaired to the slightest degree”
standard. See, e.g., State v. Soto, 2007-NMCA-077, ¶¶ 32-34, 142 N.M. 32, 162 P.3d 187
(collecting cases). Our task in this appeal, however, is not to determine whether the
evidence was sufficient to support a conviction. See Tollardo, 2012-NMSC-008, ¶ 40
(noting “[t]here are some circumstances where . . . the evidence of a defendant’s guilt is
sufficient even in the absence of the [district] court’s error, that still require the reviewing
court to reverse the conviction if the jury’s verdict appears to have been tainted by error
(internal quotation marks and citation omitted)). Instead, we must determine whether there
is a reasonable probability that Officer Martinez’s unqualified opinion testimony “could
have induced the jury’s verdict.” Gonzales, 2000-NMSC-028, ¶ 39. Keeping that task in
mind, we note that the admissible evidence in this case could have supported either a
conviction or an acquittal, since a reasonable jury could have returned either verdict. As a
result, it is possible that the actual verdict rendered in this case was a result of the jury’s
consideration of Officer Martinez’s improper testimony.

{17} Tollardo also directs us to consider “the importance of the erroneously admitted
evidence in the prosecution’s case as well as whether the error was cumulative or instead
introduced new facts.” 2012-NMSC-008, ¶ 43 (alterations, internal quotation marks, and
citation omitted). In this regard, we note that—apart from the State’s attempts to elicit
Officer Martinez’s opinion—no evidence was introduced at trial to establish whether, how,
or to what extent a .06 or .05 breath alcohol content is indicative of impairment. Thus,
Officer Martinez’s unqualified opinion that Defendant would not have had breath alcohol
contents of .06 and .05 if he had only consumed one beer—if accepted by the jurors—may
have provided them with their only means of assessing the breath scores. Officer Martinez’s
impermissible testimony clearly suggested to the jury that Defendant must have consumed
more than the one beer he admitted to drinking prior to the traffic stop. Further, because
jurors may be unfamiliar with breath alcohol contents and this jury was given no guidance
on that topic, these jurors may have used Officer Martinez’s testimony suggesting that
Defendant consumed more than one beer as their primary means of determining whether his
breath scores indicated that he was impaired at the time he was pulled over. If they did so,
the inadmissible testimony may have played a decisive role in the trial proceedings. See id.
(instructing appellate courts to consider “what role [the error] may have played in the trial
proceedings”). And, under the circumstances of this case, there is no sense in which Officer

                                               6
Martinez’s improper testimony could be considered cumulative.

{18} Finally, Officer Martinez’s improper testimony in this case, like the improper
material in Tollardo, “was the last piece of information that the jury received before formal
instructions and closing arguments, magnifying the risk that the error would factor into the
jury’s assessment of [the d]efendant’s guilt.” Id. ¶ 52. Our review of the trial proceedings
in this case leaves us convinced that there is a reasonable probability that the jury’s verdict
was the product of inadmissible testimony. The State’s final line of questions for Officer
Martinez—both on direct examination and on re-direct—sought her unqualified opinion
regarding the meaning and significance of Defendant’s breath alcohol content. Given the
fact that no other evidence was available to guide the jury in assessing that breath alcohol
content, particularly when considered with the ambiguity of the properly-admitted evidence,
it is apparent that the verdict in this case may have been induced by Officer Martinez’s
improperly elicited testimony. Having reviewed “all of the circumstances surrounding the
error,” id. ¶ 43, we conclude that the error at issue is prejudicial enough to require a new
trial.

{19}   IT IS SO ORDERED.

                                               ____________________________________
                                               CYNTHIA A. FRY, Judge

WE CONCUR:

____________________________________
M. MONICA ZAMORA, Judge

____________________________________
J. MILES HANISEE, Judge

Topic Index for State v. Armijo, No. 32,139

APPEAL AND ERROR
Harmless Error
Standard of Review
Prejudicial Error
Remand

CRIMINAL LAW
Driving While Intoxicated

GOVERNMENT
District Attorney


                                              7
EVIDENCE
Blood/Breath Tests
Expert Witness
Scientific Evidence & Daubert Standard

JURISDICTION
Metropolitan Court




                                         8
