State v. Montgomery, 33,985

On August 4, 2013, Sgt. Marc Davis stopped Zackary Montgomery for seat-belt violations; Davis discovered an outstanding warrant and arrested Montgomery while children remained in the parked van.
Davis smelled alcohol after placing Montgomery in the patrol car and called Officer Hoover to perform standardized field sobriety tests at the station; Montgomery performed poorly and consented to breath tests registering .12 and .13 BAC.
Montgomery testified he had not been drinking before the stop but bought alcohol ~20 minutes before and drank two 50 ml shots while waiting in the car; he claimed those two shots produced his higher BAC readings.
The State attempted to elicit and argue a scientific correlation between the amount Montgomery said he drank and the tested BAC, but the court sustained an objection during testimony that would have allowed unqualified lay opinion on absorption/BAC timing.
In closing, the prosecutor repeatedly told the jury it was ‘‘absolutely impossible’’ that two shots could produce a .12–.13 BAC and argued Montgomery must have been ‘‘drinking all day,’’ despite no expert evidence or record support for those scientific assertions.
The jury convicted Montgomery of negligent child abuse, driving under the influence, and seat-belt violations; Montgomery appealed, asserting prosecutorial misconduct based principally on the State’s unsupported scientific assertions in closing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s closing comments injecting scientific facts not in evidence constituted prosecutorial misconduct denying a fair trial	State: comments were fair attack on credibility and reasonable inference from record	Montgomery: prosecutor repeatedly asserted expert-level scientific conclusions (two drinks cannot equal .12/.13) not in evidence, violating court rulings and misleading jury	Reversed: prosecutor’s repetitive, unsupported scientific assertions were egregious misconduct that deprived defendant of a fair trial
Whether isolated objections cured the misconduct or required cumulative-review reversal	State: comments were credibility attacks and not reversible if isolated	Montgomery: statements were repeated and cumulative, and they concerned a crucial scientific fact that the court had precluded as inadmissible	Held that cumulative effect warranted reversal; no need to reach other misconduct claims

State v. Armijo, 316 P.3d 902 (N.M. Ct. App. 2014) (reversed DWI conviction where officer gave unqualified opinion about consumption-consistency with breath scores)
State v. Marquez, 223 P.3d 931 (N.M. 2009) (improper admission of scientific evidence indicating intoxication will likely tip balance in favor of state)
State v. Garvin, 117 P.3d 970 (N.M. Ct. App. 2005) (reversal where prosecutor’s misstatements and cumulative conduct deprived defendant of fair trial)
State v. Duffy, 967 P.2d 807 (N.M. 1998) (prosecutorial remarks must be based on evidence; prejudicial unsupported statements constitute misconduct)
State v. Torres, 279 P.3d 740 (N.M. 2012) (factors for reviewing questionable closing statements and paramount importance of context)
State v. Sosa, 223 P.3d 348 (N.M. 2009) (comments that materially alter trial or distort evidence justify reversal)
State v. Herrera, 499 P.2d 364 (N.M. Ct. App. 1972) (statements based on evidence and reasonable inferences are permissible; unsupported statements are not)