State v. Hernandez, 2017 NMCA 20

Background

June 10, 2012: two-car collision on I-25; occupants of a Pontiac were Defendant Ramon Hernandez and Domingo Gonzales; occupants of a Suzuki were Aileen and Zachary Smith. The Smiths suffered serious injuries and the Smiths’ newborn died.
No eyewitness definitively saw who was driving the Pontiac. Gonzales exited the driver side and fled; Gonzales died before trial.
Defendant consistently told responders that Gonzales was driving; prosecution relied on circumstantial evidence (injury patterns, DNA testing, jail recording of Defendant, accident reconstruction) to prove Defendant was the driver and reckless.
Pretrial motion in limine excluded hearsay that Defendant confessed to Agent Gomez; Officer Mario Vasquez nevertheless testified at trial that Agent Gomez reported a confession that Defendant was “behind the wheel.” The court excused the jury and gave a curative instruction rather than declaring a mistrial.
Jury convicted Hernandez of homicide by vehicle, great bodily harm by vehicle, and reckless driving; acquitted on DUI. Hernandez appealed, arguing mistrial was required, prosecutorial misconduct bars retrial, insufficient evidence, and other claims. Court reverses and remands for new trial based on mistrial error; finds retrial not barred and evidence sufficient to permit retrial.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Hernandez)	Held
Whether district court erred by denying mistrial after Officer Vasquez testified about excluded "confession"	Error was inadvertent, curable by prompt curative instruction; prosecutor did not intentionally elicit it	Testimony violated in limine order, was highly prejudicial on the central issue (who was driving), and required mistrial	Court: denial of mistrial was abuse of discretion; curative instruction insufficient; reverse and remand for new trial
Whether prosecutorial misconduct / double jeopardy bars retrial	Prosecutor did not intentionally elicit confession; misconduct not extraordinary; retrial permissible	Officer Vasquez was part of prosecution team; misconduct was sufficiently egregious to bar retrial	Court: double jeopardy does not extend to witness misconduct absent record showing prosecutor intended to provoke mistrial; retrial not barred
Whether evidence at first trial was sufficient to permit retrial	Circumstantial evidence (injury patterns, DNA, jail recording, reconstruction) was sufficient to support convictions	Evidence only showed possibility Defendant drove; insufficient to overcome inference Gonzales was driver	Court: viewing evidence in State's favor, sufficient circumstantial evidence existed to support convictions and justify retrial
Whether other asserted errors require resolution	N/A	Raises multiple additional evidentiary and sentencing arguments	Court: unnecessary to decide remaining claims because reversal and remand for retrial on mistrial ground disposes the appeal

Key Cases Cited

State v. Fry, 138 N.M. 700, 126 P.3d 516 (N.M. 2006) (standard of review for mistrial motion—abuse of discretion)
State v. Gonzales, 129 N.M. 556, 11 P.3d 131 (N.M. 2000) (inadmissible testimony intentionally elicited by prosecution is not cured by admonition)
State v. Ruiz, 133 N.M. 717, 68 P.3d 957 (N.M. Ct. App. 2003) (prosecutor’s questioning can effectively lead witness into suppressed testimony)
State v. McClaugherty, 133 N.M. 459, 64 P.3d 486 (N.M. 2003) (improper hearsay on critical issue can require new trial)
State v. Gutierrez, 142 N.M. 1, 162 P.3d 156 (N.M. 2007) (prejudicial comments made early in trial are difficult to overcome)
State v. Tollardo, 275 P.3d 110 (N.M. 2012) (harmless-error framework for non-constitutional evidentiary errors)