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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: _____________

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

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
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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

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 is “a particularly high breath
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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

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,
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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:

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
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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 nonconstitutional 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

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
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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

Martinez’s improper testimony could be considered cumulative.
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{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.

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CYNTHIA A. FRY, Judge

WE CONCUR:

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M. MONICA ZAMORA, Judge 

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J. MILES HANISEE, Judge