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

2 Opinion Number:___________

3 Filing Date: November 28, 2016

4 NO. 33,709

5 STATE OF NEW MEXICO,

6 Plaintiff-Appellee,

7 v.

8 RAMON HERNANDEZ,

9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY

11 Gerald E. Baca, District Judge

12 Hector H. Balderas, Attorney General

13 Santa Fe, NM

14 Kenneth H. Stalter, Assistant Attorney General

15 Albuquerque, NM

16 for Appellee

17 Bennett J. Baur, Chief Public Defender

18 Kimberly Chavez Cook, Assistant Appellate Defender

19 Santa Fe, NM

20 for Appellant
1 OPINION

2 GARCIA, Judge.

3 {1} Defendant Ramon Hernandez appeals his convictions for homicide by vehicle,

4 contrary to NMSA 1978, Section 66-8-101(A) (2004, amended 2016), great bodily

5 harm by vehicle, contrary to Section 66-8-101(B), and reckless driving, contrary to

6 NMSA 1978, Section 66-8-113(A) (1987). Defendant asserts that (1) the district court

7 erred in failing to grant a mistrial following improper testimony regarding excluded

8 evidence by New Mexico State Police Officer Mario Vasquez; (2) prosecutorial

9 misconduct bars retrial; (3) the district court erroneously admitted Defendant’s

10 conversation with a visitor that was recorded while Defendant was incarcerated; (4)

11 there was insufficient evidence to prove Defendant drove at the time of the accident

12 or that Defendant’s conduct was reckless; (5) the district court’s findings were

13 insufficient to support its classification of homicide by vehicle as a serious violent

14 offense; (6) cumulative error in the district court’s evidentiary rulings deprived

15 Defendant of a fair trial; and (7) Defendant’s conviction for reckless driving violates

16 the prohibition against double jeopardy. We hold that the improper testimony

17 regarding the purported confession was extremely prejudicial and warranted a

18 mistrial. We also hold that the prosecutor’s conduct did not rise to a level that would

19 bar retrial and that there was sufficient other evidence to support Defendant’s
2

1 convictions. We remand for a new trial. Retrial obviates the need to address

2 Defendant’s remaining arguments raised on appeal. Accordingly, we reverse

3 Defendant’s three convictions and remand for a new trial.

4 BACKGROUND

5 {2} On June 10, 2012, there was a two-car collision on southbound I-25 near Exit

6 307 in San Miguel County, New Mexico. Defendant and Domingo Gonzales were in

7 one car, a Pontiac sedan. Victims Aileen and Zachary Smith (“the Smiths”

8 collectively or “Female Victim” and “Male Victim” respectively when referred to as

9 individuals) were in the other car, a Suzuki SUV. Male Victim was driving in the

10 right lane when the Pontiac entered the highway at a low rate of speed. Male Victim

11 signaled and moved the Suzuki into the left lane to avoid the slow-moving Pontiac.

12 The Pontiac left its lane and was headed in a horizontal direction toward the left lane

13 where the Suzuki was driving. Male Victim tried to avoid the Pontiac, the two cars

14 collided, nearly perpendicular. The right front of the Suzuki hit the driver’s side of

15 the Pontiac, near the front end, and the airbags in the Suzuki deployed.

16 {3} Shortly after the collision, Jorge Acosta, a passerby, stopped to help. Acosta

17 observed two people emerge from the driver’s side window of the Pontiac. The first

18 person, who was later identified as Gonzales, walked away from the scene of the

19 accident.The second person wasidentified as Defendant. Acosta did not observe who
3

1 had been driving the Pontiac, but Defendant told him that “the one who had run was

2 the one who had driven.” Throughout the investigation and in his conversations with

3 the first responders, Defendant maintained that he was not the driver of the Pontiac.

4 He stated to a first responder that “he did not know” who was driving and told

5 officers that Gonzales was driving at the time of the accident.

6 {4} Female Victim was seven months pregnant at the time of the accident. Her

7 water broke on scene and she began to have severe contractions. Male Victim called

8 911. Female Victim was trapped in the car but first responders freed her and took her

9 to the hospital. There, doctors performed an emergency cesarean delivery. A baby boy

10 (Baby) was born alive but was not breathing and soon died from blunt force injuries

11 and prematurity. Female Victim also suffered other significant injuries with

12 permanent effects. The Smiths had one child after the accident, but doctors advised

13 against any more children due to Female Victim’s ongoing health risks associated

14 with the accident. Male Victim’s injuries were not as serious and healed without

15 lasting consequence.

16 {5} Ultimately, Defendant was charged with multiple crimes related to the

17 collision, including homicide by vehicle, great bodily harm by vehicle, driving under

18 the influence of intoxicating liquor or drugs, and reckless driving. The State alleged

19 that Defendant was the driver of the Pontiac at the time of the accident.
4

1 {6} By the time of trial, Gonzales was not available to testify because he was

2 deceased. No statements from Gonzales were introduced as evidence. Evidence

3 introduced at trial included the following: (1) a recorded conversation between

4 Defendant and a visitor at the jail, with Defendant making remarks the State alleges

5 imply that Defendant was the driver based upon a reference to his location in the

6 vehicle; (2) accident reconstruction testimony; (3) DNA evidence taken from the

7 Pontiac and compared against Defendant and Gonzales; and (4) testimony from

8 witnesses on scene and investigative officers, including improper testimony from

9 New Mexico State Police Officer Mario Vasquez that Defendant had confessed to

10 another officer about being “behind the wheel” at the time of the accident. Officer

11 Vasquez’s “behind the wheel” hearsay testimony was specifically excluded by a

12 pretrial motion in limine, but after failing to adhere to the court’s admonishment at

13 trial, it was ultimately excluded again by a curative instruction to the jury to

14 “disregard that statement [by Officer Vasquez] and to not consider it for any

15 purpose.”

16 {7} The jury convicted Defendant of homicide by vehicle (based upon evidence of

17 reckless driving), great bodily harm by vehicle (also based upon evidence of reckless

18 driving), and reckless driving. The jury acquitted Defendant of driving under the

19 influence of intoxicating liquor or drugs.
5

1 {8} Defendant appeals, raising numerous issues. We address three of the issues

2 raised: (1) whether the district court should have granted a mistrial following the

3 improper reference by Officer Vasquez to the excluded confession; (2) whether

4 alleged prosecutorial misconduct bars retrial; and (3) whether there was sufficient

5 evidence to support Defendant’s convictions and remand for a new trial.

6 DISCUSSION

7 I. Mistrial

8 A. The Purported Confession Testimony

9 {9} We address whether the district court erred when it failed to grant a mistrial

10 based on Officer Vasquez’s improper trial testimony that Defendant allegedly

11 confessed to being “behind the wheel” at the time of the accident. Prior to testifying

12 at trial, Officer Vasquez had been admonished that no such confession was ever made

13 to Agent Gomez and, as a result, this purported confession was excluded from the

14 State’s evidence as inadmissible hearsay and was not to be mentioned at trial.

15 {10} Officer Vasquez previously prepared a written report stating Agent Gomez told

16 him that Defendant admitted to being the driver. However, Agent Gomez specifically

17 refuted the existence of any such purported confession as well as any alleged

18 statement made to Officer Vasquez. Accordingly, the parties agreed and stipulated

19 that Defendant had never admitted to Agent Gomez that he was the driver at the time
6

1 of the collision. Therefore, the purported statement in Officer Vasquez’s report was

2 hearsay, factually incorrect, and prejudicial to Defendant. Prior to trial, Defendant

3 moved in limine to exclude any such testimony regarding the purported confession

4 as both factually incorrect and as prejudicial hearsay. The district court granted

5 Defendant’s motion, agreeing that what Officer Vasquez had written in his report

6 about a purported confession constituted inadmissable hearsay. Defense counsel

7 cautioned the district court and the State that any such testimony from Officer

8 Vasquez would be “undoable” and a mistrial issue. The district court then specifically

9 directed the State to confer with Officer Vasquez and stated, “I want it understood by

10 [Officer Vasquez] that he’s not to be repeating what [Agent] Gomez told him

11 occurred” and to “make sure that he is clear he’s not to testify to any hearsay.”

12 {11} At trial, prior to Officer Vasquez’s testimony, the prosecutor reconfirmed and

13 acknowledged the district court’s previous directive that it admonish Officer Vasquez

14 not to testify as to anything he was told by Agent Gomez. The district court

15 responded, “I just want to make sure because . . . I don’t want to end up with a

16 mistrial at this point in time.” After Officer Vasquez was called to testify and

17 improperly testified regarding Defendant being incarcerated, the district court issued

18 another warning and put the State on further notice that “[Officer Vasquez] likes to

19 spit out a lot of information at a time, so be real careful with the questions and be real
7

1 specific with him.” Nonetheless, just moments later the following exchange occurred

2 with Officer Vasquez.

3 Prosecutor: We talked about the search of the vehicle and the

4 search warrant for [D]efendant and then you

5 interviewed, well, actually Agent Gomez

6 interviewed [D]efendant.

7 Officer Vasquez: That is correct.

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

9 investigation?

10 Officer Vasquez: In our investigation, uh, like I said, we were outside

11 of the interview room while Agent Gomez said

12 [Defendant] were speaking. Um, Mr. Um, Agent

13 Gomez came out and stated that there was a

14 confession of being behind the wheel.

15 {12} Following this exchange, the district court immediately recognized the error

16 that had occurred and excused the jurors from the courtroom. Once the jury was

17 removed, the district court began by stating that

18 There was a motion in limine with respect to what [Officer Vasquez’]

19 testimony would and would not be with respect to statements being

20 made by [D]efendant to Agent Gomez . . . and specifically the issue with

21 respect to this statement of confession. . . . [I]t was ordered by the court

22 that no such statement would be made and that the [S]tate would

23 admonish and do whatever it needed to do with this witness to make

24 sure that [it] didn’t come out. It did come out. There was no [immediate]

25 objection by the defense but I heard it. I know the jury heard it, and it

26 was something that I ordered not to happen. I need to hear from the

27 [S]tate why I shouldn’t declare a mistrial at this time.

28 The prosecutor acknowledged that the court’s order was violated but argued that a
8

1 mistrial was not warranted, asked for a curative instruction, and suggested that the

2 issue be addressed through cross-examination of Officer Vasquez. Defense counsel

3 argued that a curative instruction was not sufficient and asked for a mistrial. The

4 district court orally ruled that there was “[no] manifest necessity” for a mistrial and

5 that “[i]t’s unfair to everyone to have to spend the time and effort to come and deal

6 with emotional issues here and [for] the court [to] have to declar[e a] mistrial and

7 have to do it over again.” Instead, the district court chose to give the jury a curative

8 instruction.

9 {13} The parties do not dispute that Officer Vasquez’s hearsay testimony regarding

10 the purported confession by Defendant constituted an evidentiary error and violated

11 a specific pre-trial order forbidding such testimony. In addition, the State does not

12 dispute that Defendant could have been unfairly prejudiced by Officer Vasquez’s

13 improper testimony.

14 B. The Curative Instruction

15 {14} “[The appellate courts]review a [district] court’s denial of a motion for mistrial

16 under an abuse of discretion standard.” State v. Fry, 2006-NMSC-001, ¶ 52, 138

17 N.M. 700, 126 P.3d 516 (internal quotation marks and citation omitted). The district

18 court abuses its discretion in ruling on a motion for mistrial if it acts in an obviously

19 erroneous, arbitrary, or unwarranted manner, id. ¶ 50, or when the decision is “clearly
9

1 against the logic and effect of the facts and circumstances before the court.” State v.

2 Lucero, 1999-NMCA-102, ¶ 32, 127 N.M. 672, 986 P.2d 468 (internal quotation

3 marks and citation omitted). In determining whether the district court abused its

4 discretion, we must address whether Officer Vasquez’s prejudicial testimony about

5 the purported confession could be cured by the instruction that the district court read

6 to the jury.

7 {15} The State argues that the district court reasonably concluded a curative

8 instruction was sufficient to remedy the single reference to Defendant’s purported

9 confession. The State contends that the record reveals several factors that mitigate

10 potential prejudice and show a mistrial was an extreme, unwarranted measure. These

11 factors include that Officer Vasquez’s testimony was not elicited by the prosecutor,

12 Officer Vasquez’s misstatement occurred early in the trial, and the subsequent

13 testimony of Agent Gomez established Defendant had not admitted to driving during

14 the collision. Additionally, the State argues that Defendant retained the ability to

15 cross-examine Officer Vasquez regarding the erroneous basis for his statement but

16 chose not to do so. We disagree with the State’s assertion that certain mitigating

17 factors existed to cure a mistrial and shall address the numerous errors made by the

18 district court when it ruled otherwise.

19 {16} Numerous evidence-based factors support Defendant’s argument that the error
10

1 could not be cured by the district court’s instruction to disregard Officer Vasquez’s

2 prejudicial testimony about the purported confession that, in fact, was established to

3 be erroneous prior to trial. First, the issue of who was driving the Pontiac at the time

4 of the accident, Defendant or Gonzales, was the most critical issue in the case and

5 highly disputed by the parties. The State was aware of Defendant’s consistent

6 statements that Gonzales was the driver at the time ofthe accident. During its opening

7 statement, the State made it clear that nobody saw who was driving the vehicle,

8 Defendant said Gonzales was driving, and the State intended to prove Defendant was

9 in fact the driver. Second, Gonzales’s inculpatory acts of being the first person to exit

10 the driver side of the Pontiac and immediately flee the scene of the accident supported

11 Defendant’s statements that Gonzales was the driver at the time of the accident.

12 Gonzales’s subsequent death prior to trial complicated the critical issue of who was

13 driving at the time of the accident. Third, at trial, the State’s case exclusively relied

14 on circumstantial and inferential evidence to establish that Defendant, not Gonzales,

15 was driving the Pontiac at the time ofthe accident.This evidentiary background made

16 the purported confession by Defendant to Agent Gomez uniquely prejudicial,

17 especially under the circumstances where Defendant established prior to trial that no

18 such confession occurred.

19 {17} Our case law acknowledges that “generally, a prompt admonition . . . to the jury
11

1 to disregard and not consider inadmissible evidence sufficiently cures any prejudicial

2 effect which might otherwise result.” State v. Armijo, 2014-NMCA-013, ¶ 9, 316 P.3d

3 902 (emphasis, alterations, internal quotation marks, and citation omitted) (quoting

4 State v. Newman, 1989-NMCA-086, ¶ 19, 109 N.M. 263, 784 P.2d 1006); see State

5 v. Shoemaker, 1981-NMCA-151, ¶¶ 7, 9, 11-13, 97 N.M. 253, 638 P.2d 1098

6 (recognizing that a curative instruction was sufficient to cure any prejudice that

7 occurred when the state attempted to impeach the defendant with a prior indictment

8 that did not result in a conviction). However, one ofthe exceptions to this general rule

9 arises when “inadmissible testimony [is] intentionally elicited by the prosecution.”

10 State v. Gonzales, 2000-NMSC-028, ¶ 39, 129 N.M. 556, 11 P.3d 131, overruled on

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

12 an instance, the general rule does not apply regardless of whether the district court

13 admonishes the jury to disregard the inadmissible testimony. Gonzales, 2000-NMSC14 028, ¶ 39. On review, this Court “must determine whether there is a reasonable

15 probability that the improperly admitted evidence could have induced the jury’s

16 verdict.” Id. Therefore, prior to determining whether a curative instruction has cured

17 what otherwise would be error, we must first consider whether the inadmissible

18 testimony was intentionally elicited by the State. See Armijo, 2014-NMCA-013, ¶ 10.
12

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

2 {18} Some fault can be attributed to the prosecutor in failing to follow the district

3 court’s specific instruction to be “careful with the questions [to Officer Vasquez] and

4 be real specific with him.” Almost immediately thereafter, the prosecutor asked an

5 open-ended question regarding Agent Gomez’s interview of Defendant at the police

6 station and Officer Vasquez’s “next step after that[.]” From a strictly sequential

7 perspective, this next step is important to our review. The State was aware of the

8 “next step” taken by Officer Vasquez. This was the moment when Officer Vasquez

9 erroneously claimed in his written report that Agent Gomez came out of the interview

10 room and purportedly told Officer Vasquez that Defendant had confessed to being

11 “behind the wheel.”

12 {19} The issue is whether the prosecutor intentionally disregarded the district court’s

13 direct admonishment to “be careful . . . and . . . specific” at this juncture when the

14 prosecutor immediately gave Officer Vasquez the open-ended opportunity to testify

15 about what in fact happen next—Agent Gomez allegedly telling Officer Vasquez

16 about the purported confession. See State v. Ruiz, 2003-NMCA-069, ¶¶ 6-9, 133 N.M.

17 717, 68 P.3d 957 (recognizing that a prosecutor’s questioning can be considered

18 intentional when he walked a key witness right into the testimony that had been

19 suppressed by a motion in limine); see also State v. Saavedra, 1985-NMSC-077, ¶ 9,
13

1 103 N.M. 282, 705 P.2d 1133 (concluding that an improper prosecutorial motive was

2 established when the prosecutor asked an identical question of the same witness at a

3 grand jury hearing and received identical inadmissible answers each time), abrogated

4 on other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d

5 783; State v. Vialpando, 1979-NMCA-083, ¶ 23, 93 N.M. 289, 599 P.2d 1086

6 (holding that a curative instruction was only proper because “the witness’s response

7 was totally unexpected by the court and the attorneys”). In fact, Officer Vasquez

8 accurately answered the prosecutor’s question regarding the “next step” that occurred

9 in the investigation. Just like the prosecutor in Ruiz, the prosecutor walked Officer

10 Vasquez right to the key confession testimony that had been suppressed prior to trial

11 and gave him an open-ended question that, once answered correctly, solicited the

12 suppressed evidence. See 2003-NMCA-069, ¶ 7. Like Ruiz, there is no record on

13 appeal regarding what the prosecutor was expecting as the answer to the question at

14 issue on this appeal. See id. However, the district court’s curative instruction included

15 specific language stating that Officer Vasquez’s testimony was non-responsive. Based

16 upon the district court’s curative instruction, this Court can only infer that the

17 prosecutor expected Officer Vasquez to move on to other aspects of the investigation

18 and avoid any violation of the pretrial order and subsequent admonishments issued

19 by the district court. “Where there is a doubtful or deficient record, every presumption
14

1 must be indulged by the reviewing court in favor of the correctness and regularity of

2 the [district] court’s judgment.” State v. Rojo, 1999-NMSC-001, ¶ 53, 126 N.M. 438,

3 971 P.2d 829 (internal quotation marks and citation omitted). This presumption of

4 correctness cannot be disregarded in this instance. Despite walking the witness right

5 to the line of the suppressed testimony, this Court can reasonably rely on the district

6 court’s determination and we are sufficiently persuaded that the prosecutor did not

7 intentionally solicit Officer Vasquez’s testimony about the purported confession. See

8 Ruiz, 2003-NMCA-069, ¶ 7; see also Gonzales, 2000-NMSC-028, ¶ 39 (applying “a

9 different analysis to inadmissible testimony intentionally elicited by the prosecution).

10 D. The Purported Confession Error Was Not Harmless

11 {20} Next, we address whether Officer Vasquez’s testimony about the purported

12 confession can be overcome by the district court’s curative instruction or could

13 otherwise be considered harmless error. When a non-constitutional evidentiary error

14 occurs, the harmless error standard of review only requires reversal if there is a

15 “reasonable probability” the inadmissible evidence contributed to Defendant’s

16 conviction. See State v. Leyba, 2012-NMSC-037, ¶ 24, 289 P.3d 1215 (internal

17 quotation marks and citation omitted). Under this standard of review, a case-by-case

18 analysis is required. See Tollardo, 2012-NMSC-008, ¶ 44. Reviewing courts are to

19 evaluate all ofthe circumstancessurrounding the error, including examining the error
15

1 itself, the source of the error, the emphasis on the error, and whether the error was

2 cumulative or introduced new facts. Id. ¶ 43. Evidence of guilt separate from the error

3 may be relevant but may not be the singular focus in determining whether the trier of

4 fact was influenced by the error. Id.

5 {21} In the instant case, the error created by Officer Vasquez’s testimony regarding

6 the purported confession was not harmless and was proper grounds for reversal and

7 a new trial. See State v. McClaugherty, 2003-NMSC-006, ¶¶ 27, 32-35, 133 N.M.

8 459, 64 P.3d 486 (recognizing the improperly admitted hearsay statements that went

9 to a critical and highly disputed issue at trial were not harmless and warranted a new

10 trial), overruled on other grounds by Tollardo, 2012-NMSC-008, ¶ 37 n.6. This Court

11 has explained that “confessions can prejudice ‘the jury’s thinking on certain issues

12 which it might otherwise have been able to decide objectively.’ ” State v. Hardy,

13 2012-NMCA-005, ¶ 10, 268 P.3d 1278 (quoting Proof of the Corpus Delicti Aliunde

14 the Defendant’s Confession, 103 U. Pa. L. Rev. 638, 677 (1955)). Thus, a confession

15 can be highly prejudicial and warrants a close examination of the circumstances.

16 Here, the confession Officer Vasquez wrongly referenced struck at the crux of the

17 defense offered at trial—Defendant was not the driver at the time of the collision.

18 Officer Vasquez’s testimony claiming that a confession occurred, when it never did,

19 not only undermined Defendant’s overall credibility but provided erroneous
16

1 corroboration for the State’s circumstantial evidence regarding who it claimed was

2 driving at the time of the accident.

3 {22} Furthermore, Officer Vasquez’s testimony regarding the purported confession

4 occurred on the afternoon of the first day of trial. The fact that a witness made an

5 improper reference to a confession so early in the course of trial can be difficult to

6 overcome. See State v. Gutierrez, 2007-NMSC-033, ¶ 23, 142 N.M. 1, 162 P.3d 156

7 (concluding that a prejudicial comment made in opening statement “particularly at

8 this stage, is inherently difficult to overcome”). In addition, after Officer Vasquez

9 made the inappropriate comment, the district court immediately excused the jury,

10 without providing any sort of instruction, while the attorneys argued for or against a

11 mistrial. According to the record, the jury was excused for approximately nine

12 minutes, which is ample time for the reference to a confession to take root and fester

13 in the jurors’ minds. Only after the jury returned was the curative instruction offered

14 in an attempt to remedy the inappropriate testimony about the purported confession.

15 E. The District Court’s Curative Instruction Was Insufficient

16 {23} The district court’s curative instruction was vague and inaccurate. The district

17 court instructed the jury as follows:

18 Ladies and gentlemen, there was an unresponsive statement made by

19 [Officer Vasquez] concerning a confession, there was an objection to

20 that statement. I have sustained the objection and will strike that

21 statement from the record and the jury is instructed to disregard that
17

1 statement and to not consider it for any purpose.

2 {24} This instruction was not accurate in two respects. First, as discussed above,

3 Officer Vasquez’s statement was in fact responsive to the prosecutor’s question of

4 what the officer did next. Officer Vasquez accurately answered the prosecutor with

5 the next sequential act in his investigation—meeting Agent Gomez outside the

6 interrogation room and addressing what was obtained during Defendant’s

7 interrogation. Secondly, the district court inaccurately referenced an objection that

8 was sustained—a technical error that was procedurally incorrect and factually

9 contrary to what actually occurred on the record. Immediately after Officer Vasquez’s

10 confession statement, the district court sua sponte excused the jury prior to any

11 objection or any other statement by defense counsel. Even once the jury was excused,

12 Defendant did not object to the alleged confession testimony but very specifically

13 moved for mistrial, and the motion for mistrial is what the parties argued while the

14 jury was excused. The district court denied the motion for mistrial and decided to use

15 its curative instruction to the jury. Therefore, two substantive inaccuracies were

16 presented to the jury in the language of the court’s curative instruction.

17 {25} Even if this instruction attempted to accurately cure the error made by Officer

18 Vasquez, it was also vague when it informed the jury of its duty to disregard the

19 improper comment. See State v. Garcia, 1994-NMCA-147, ¶ 17, 118 N.M. 773, 887
18

1 P.2d 767. Telling the jury to disregard the “unresponsive statement made by the

2 officer concerning a confession” does not inform the jury that the reason to disregard

3 the statement concerning a confession was, in fact, because no confession ever

4 occurred. The fact that a confession never occurred was critical information with

5 regard to the prejudice injected into the trial. Although the district court may have

6 deliberately made the curative instruction vague to avoid further emphasis of Officer

7 Vasquez’s improper reference to the purported confession, referencing an objection

8 that never occurred and failing to address the fact that no confession ever occurred

9 was also error. See id. (stating that “[i]ndeed, the vagueness was probably intentional,

10 because any direct comment on [the error] posed the risk of emphasizing the matter

11 to the jury”); see also Gutierrez, 2007-NMSC-033, ¶ 23 (holding that a vague

12 instruction was insufficient to cure prejudice); State v. Miller, 1966-NMSC-041, ¶ 32,

13 76 N.M. 62, 412 P.2d 240 (holding that a statutory curative instruction would not

14 sufficiently remove the improper impression created by a prosecutor’s inappropriate

15 comments regarding the defendant’s failure to testify). We recognize that the district

16 court was attempting to address a critical and prejudicial error. Should it tell the jury

17 the truth and re-emphasize the serious prejudice that Officer Vasquez had created or

18 should it hide the true nature of the error by misrepresenting the procedural

19 circumstances that required a curative instruction, as well as the true erroneous nature
19

1 of the purported confession? These unacceptable choices regarding accuracy and

2 vagueness only reinforce why Defendant’s motion for a mistrial should have been

3 granted and could not be cured by the district court’s efforts to use a curative

4 instruction.

5 {26} For the foregoing reasons, we are persuaded that there was a reasonable

6 probability the purported confession and insufficient curative instruction severely

7 prejudiced the jury’s thinking and contributed to Defendant’s conviction. In addition,

8 a reasonable inference can be drawn from the circumstances that Officer Vasquez’s

9 testimony was not accidental. Because the resulting curative instruction was vague

10 and inaccurate, we conclude that the instruction was insufficient in this case, and the

11 district court abused its discretion when it failed to grant Defendant’s motion for a

12 mistrial.

13 II. No Prosecutorial Misconduct

14 {27} We next consider whether prosecutorial misconduct occurred such that double

15 jeopardy bars Defendant’s retrial. Prosecutorial misconduct occurs when

16 prosecutorial “improprieties had such a persuasive and prejudicial effect on the jury’s

17 verdict that the defendant was deprived of a fair trial.” State v. Duffy, 1998-NMSC18 014, ¶ 46, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by Tollardo,

19 2012-NMSC-008, ¶ 37 n.6.In instances of extreme prosecutorial misconduct, double
20

1 jeopardy may bar a new trial. See State v. Breit, 1996-NMSC-067, ¶ 2, 122 N.M. 655,

2 930 P.2d 792. Under Article II, Section 15 of the New Mexico Constitution, retrial

3 is barred where (1) the official misconduct is so prejudicial that nothing short of

4 mistrial will cure it; (2) “the official knows that the conduct is improper and

5 prejudicial[;]” and (3) “the official either intends to provoke a mistrial or acts in

6 willful disregard of the resulting mistrial, retrial, or reversal.” Breit, 1996-NMSC7 067, ¶ 32. “When the prosecutor does not intend to provoke a mistrial, the misconduct

8 necessary to bar a retrial must be extraordinary.” State v. Haynes, 2000-NMCA-060,

9 ¶ 6, 129 N.M. 304, 6 P.3d 1026 (internal quotation marks and citation omitted).

10 Despite walking a witness right to the answer that was the proper basis for mistrial,

11 this Court has previously recognized that remand for a new trial is the appropriate

12 remedy for such an intentional act by a prosecutor. See Ruiz, 2003-NMCA-069,

13 ¶¶ 11-12.

14 {28} Defendant argues that Officer Vasquez is also part of the prosecution team

15 when analyzing prosecutorial misconduct that bars retrial. Defendant points out that

16 the State was twice placed on explicit notice that testimony of a confession risked a

17 mistrial. Although Defendant specifically recognizes that no authority extends the

18 double jeopardy analysis regarding prosecutorial misconduct to testifying members

19 of the prosecution team, he asks this Court to recognize such an extension. The State
21

1 in response highlights that no double jeopardy authority extends the prosecutorial

2 misconduct analysis to testifying members of the prosecution team. The State argues

3 that Officer Vasquez’s testimony was an unsolicited, non-responsive comment that

4 should not be attributed to the prosecutor.

5 {29} We agree with the State that, for double jeopardy purposes, New Mexico does

6 not extend a prosecutorial misconduct analysis to witnesses. While police officers are

7 members of the prosecution team for the purposes of disclosure of exculpatory

8 evidence, State v. Wisniewski, 1985-NMSC-079, ¶ 21, 103 N.M. 430, 708 P.2d 1031,

9 this Court has rejected the concept’s extension to an officer’s comments on a

10 defendant’s constitutional right to remain silent. See State v. Herrera, 2014-NMCA11 007, ¶ 22, 315 P.3d 343. We are not persuaded by Defendant’s arguments to extend

12 the double jeopardy protection against prosecutorial misconduct to the State’s

13 witnesses who inject precluded testimony into the trial. In addition, Defendant failed

14 to provide us with an evidentiary basis clearly attributing Officer Vasquez’s improper

15 conduct to the intentions of the prosecutor. See Breit, 1996-NMSC-067, ¶ 2

16 (recognizing that inherent in the bar on retrial is the prosecutor’s intent to provoke a

17 mistrial); Haynes, 2000-NMCA-060, ¶ 6 (recognizing that the misconduct must be

18 extraordinary when the prosecutor does not intend to provoke a mistrial). Here, the

19 prosecutor mistakenly asked Officer Vasquez an open-ended question, “what was
22

1 your next step after that in your investigation?” Officer Vasquez utilized this

2 opportunity to improperly testify about the purported confession that had been

3 suppressed. As we previously discussed, the presumption of correctness and

4 reasonable inferences that can be drawn from the district court’s curative instruction

5 are sufficient to persuade us that the prosecutor did not intentionally elicit testimony

6 about the purported confession that had been suppressed. Absent a sufficient record

7 to establish this intent element for prosecutorial misconduct, double jeopardy does

8 not bar a retrial of Defendant.

9 III. Sufficiency of the Evidence to Justify Retrial

10 {30} Finally, we consider whether the State put forth sufficient evidence to convict

11 Defendant of the charges and justify a second trial. State v. Consaul, 2014-NMSC12 030, ¶ 41, 332 P.3d 850 (noting well-established precedent that “[t]o avoid any

13 double jeopardy concerns, we review the evidence presented at the first trial to

14 determine whether it was sufficient to warrant a second trial”). In reviewing the

15 sufficiency of the evidence, this Court “view[s] the evidence in the light most

16 favorable to the guilty verdict, indulging all reasonable inferences and resolving all

17 conflicts in the evidence in favor of the verdict.” State v. Cunningham, 2000-NMSC18 009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 

19 {31} Defendant argues that the State failed to prove beyond a reasonable doubt that
23

1 Defendant was actually driving the car at the time of the collision, particularly

2 because Gonzales’s own conduct implicates him as the driver. Defendant asserts that

3 the remaining evidence only proves the mere possibility that Defendant drove and is

4 thus insufficient to overcome the inference that Gonzales was driving. Additionally,

5 Defendant argues there was insufficient evidence of recklessness. We disagree with

6 Defendant. As this Court must view the evidence in the light most favorable to the

7 State, disregarding contrary evidence and inferences, we conclude that there was

8 sufficient evidence to support Defendant’s convictions. See id.

9 {32} A rational jury could have found beyond a reasonable doubt that Defendant

10 was the driver of the Pontiac at the time of the collision. There were two people inside

11 the Pontiac at the time of the collision, Defendant and Gonzales. Nobody directly saw

12 who was driving at the time of the accident, and Defendant consistently told

13 witnesses and the investigating officers that Gonzales was the driver. The jury thus

14 had to infer, from the evidence, which person inside the Pontiac was driving. Because

15 the jury was free to reject Defendant’s version of the facts, the contrary evidence and

16 inferences did provide a sufficient factual basis for the jury to determine that

17 Defendant was the driver at the time of the accident. See State v. Astorga, 2015-

18 NMSC-007, ¶ 57, 343 P.3d 1245. This evidence includes inconsistent statements

19 from Defendant as to whether and when Gonzales switched to become the driver.
24

1 Evidence was also presented showing that Defendant was observed with injuries on

2 the left side of his body, and the State’s expert testimony opined that these injuries

3 would be consistent with Defendant being in the driver’s seat at the time of the

4 accident. The DNA evidence taken from the vehicle after the accident was negative

5 for Gonzales on the driver’s side of the Pontiac and negative for Defendant on the

6 passenger’s side of the vehicle. In addition, when Defendant was audio taped while

7 talking to a visitor at the jail, he was heard using the first person to describe his

8 actions during the accident, thus also implying that he was the driver. Viewing all the

9 circumstantial evidence in the light most favorable to the State, sufficient evidence

10 was presented at trial to convict Defendant of the homicide by vehicle and great

11 bodily harm by vehicle charges.

12 {33} As to the sufficiency of the evidence regarding reckless driving and the element

13 of recklessness, the facts of the collision as well as trial testimony provide sufficient

14 evidence to conclude that the driver of the Pontiac showed a “willful or wanton

15 disregard of the rights or safety of others.” Section 66-8-113(A). With another vehicle

16 approaching on a major interstate at highway speeds, the driver of the Pontiac slowly

17 cut across all lanes of travel in a nearly horizontal direction, causing the Pontiac to

18 collide with the Smiths’ Suzuki. In addition, a police officer testified that the

19 Pontiac’s driver was “reckless” when making this maneuver and used this precise
25

1 language. Thus, a rational jury could have also found beyond a reasonable doubt that

2 the Pontiac driver was reckless. Based on the foregoing, sufficient evidence was

3 presented to support the recklessness element of Defendant’s convictions.

4 IV. Defendant’s Remaining Claims of Error

5 {34} As a result of our reversal and remand for a new trial, we determine that it is

6 unnecessary for this Court to address any of Defendant’s remaining assertions of

7 error. See State v. Vallejos, 1994-NMSC-107, ¶ 13, 118 N.M. 572, 883 P.2d 1269.

8 CONCLUSION

9 {35} For the reasons stated in this opinion, we reverse Defendant’s convictions for

10 homicide by vehicle, great bodily harm by vehicle, and reckless driving. We remand

11 for a new trial consistent with this opinion.

12 {36} IT IS SO ORDERED.

13 __________________________________

14 TIMOTHY L. GARCIA, Judge

15 WE CONCUR:

16 ___________________________________

17 JONATHAN B. SUTIN, Judge

18 ___________________________________

19 M. MONICA ZAMORA, Judge