316 P.3d 902
N.M. Ct. App.2013Background
- Edward Armijo was charged with DWI, speeding, and failure to maintain a lane; jury acquitted on lane violation, convicted of speeding and DWI; conviction affirmed by district court and appealed.
- Officers Hammon and Martinez testified: speeding, odor of alcohol, bloodshot/watery eyes, slurred speech; some minor failings on walk-and-turn and one-leg-stand; HGN performed correctly.
- Breath test results: two samples of .06 and .05 g/210 L (below statutory .08 per se limit).
- State asked Officer Martinez (improperly, without foundation) whether .06/.05 was "a particularly high breath score" and whether those scores were consistent with "one beer" or "more than one beer;" objections were sustained and jury was admonished to disregard.
- Court of Appeals reviewed whether the prosecutor-elicited, unqualified opinion by Officer Martinez about what number of drinks produced the low breath scores was prejudicial despite the curative instruction.
Issues
| Issue | State's Argument | Armijo's Argument | Held |
|---|---|---|---|
| Admissibility of officer's opinion about how many drinks produce .06/.05 breath scores | Questions were isolated and cured by the court's immediate admonition to disregard | Questions elicited unqualified expert opinion without foundation and were intentionally pursued by the State | Held inadmissible: opinion testimony lacked expert foundation under Rule 11-703 and Alberico |
| Whether curative instruction cured the error | Curative instruction remedied the isolated improper question and answer | Because the prosecution elicited the testimony, curative instruction may not suffice; review for reasonable probability of prejudice required | Held curative instruction did not necessarily cure error; court applied Gonzales/Tollardo harmless-error standard |
| Harmless-error standard and application to facts | Error was harmless because other evidence supported impairment finding | Error was prejudicial because evidence could support conviction or acquittal and jurors had no other basis to interpret .06/.05 | Held prejudicial: reasonable probability that unqualified opinion induced the verdict; reversal and new trial required |
| Cumulative error claim | Not argued as determinative on appeal | Argued but unnecessary if reversal granted on opinion testimony | Court declined to reach cumulative-error claim (no opinion) |
Key Cases Cited
- State v. Alberico, 861 P.2d 192 (N.M. 1993) (foundation required for opinion testimony)
- State v. Gonzales, 11 P.3d 131 (N.M. 2000) (prosecutor-elicited inadmissible testimony requires prejudice review despite curative instruction)
- State v. Tollardo, 275 P.3d 110 (N.M. 2012) (harmless-error analysis: no reasonable probability the error affected the verdict standard; case-by-case review)
- State v. Frank, 589 P.2d 1047 (N.M. 1979) (policy against prosecutorial reliance on curative instruction to excuse intentionally elicited error)
- State v. Saavedra, 705 P.2d 1133 (N.M. 1985) (prosecutor’s repeated ability to elicit improper testimony supports reversal rather than reliance on admonition)