State v. Montgomery
2017 NMCA 65
N.M. Ct. App.2017Background
- On Aug. 4, 2013, Sgt. Marc Davis stopped Zackary Montgomery for seat-belt violations, discovered an outstanding warrant, and arrested him; children were in the back seat. Montgomery drank two 50 ml shots in the car after purchase and before the traffic stop, according to his testimony and his brother’s.
- Davis detected alcohol on Montgomery after the arrest; Montgomery performed poorly on standardized field sobriety tests and consented to a breath test at the station, producing .12 and .13 BAC results.
- Charges: driving while under the influence (DWI) (fourth offense / alternativel y BAC ≥ .08), negligent child abuse (no death or great bodily harm), and failure to wear seat belts.
- The State attempted to elicit testimony from Sgt. Davis about alcohol absorption/"peak" and whether two shots could produce a .12 BAC forty minutes later; the trial court sustained a defense objection to that specific question and barred Davis from giving an expert opinion on that issue.
- During closing, the prosecutor repeatedly argued—over defense objection and despite the court’s prior exclusion—that it was "absolutely impossible" that two shots produced a .12/.13 BAC and suggested Montgomery had been "drinking all day," asserting facts and scientific conclusions not in evidence.
- The jury convicted Montgomery on all counts; on appeal the Court of Appeals held the prosecutor’s repeated, unsupported scientific assertions during trial and closing constituted reversible prosecutorial misconduct and reversed and remanded for a new trial.
Issues
| Issue | State's Argument | Montgomery's Argument | Held |
|---|---|---|---|
| Whether the prosecutor’s closing and trial statements asserting that two shots could not produce a .12/.13 BAC were improper and reversible | Argued statements were credibility argument and reasonable inference from evidence | Argued statements injected unsupported scientific facts/opinions outside the record and beyond permissible argument | Held improper: prosecutor repeatedly advanced baseless scientific claims that required expert foundation; this deprived defendant of a fair trial and warranted reversal |
| Whether the prosecutor’s comments about post-arrest silence and character (calling defendant a liar/thug) were misconduct contributing to unfair trial | Framed as attacking credibility and inferences from conduct | Argued such characterizations were unsupported and prejudicial | Court found primary reversible error in the scientific assertions and did not need to resolve all other alleged misconduct; cumulative misconduct contributed to unfairness |
| Whether the trial court abused discretion in overruling objections during closing argument | Argued comments were permissible argument and jury credibility assessment | Argued court should have sustained objections and instructed jury to disregard | Held trial court abused its discretion by permitting the repeated, critical scientific assertions after excluding expert testimony on that subject |
| Whether reversal is required or error was harmless given the evidence | Argued evidence (poor FSTs, breath results) supported conviction; error harmless | Argued improper, repeated, expert-like statements likely swayed jury on a pivotal factual issue (amount/timing of consumption vs. BAC) | Held reversible: prosecutor’s manipulation of a crucial scientific fact not in evidence likely altered trial outcome; remanded for new trial |
Key Cases Cited
- State v. Armijo, 316 P.3d 902 (N.M. Ct. App. 2014) (officer unqualified to opine on drink-to-BAC correlation; improper opinion testimony can require reversal)
- State v. Duffy, 967 P.2d 807 (N.M. 1998) (prosecutor’s remarks must be based on evidence; prejudicial statements unsupported by evidence are misconduct)
- State v. Torres, 279 P.3d 740 (N.M. 2012) (factors for reviewing closing argument statements: constitutional invasion, pervasiveness, and invitation by defense; context paramount)
- State v. Sosa, 223 P.3d 348 (N.M. 2009) (comments that materially alter trial or distort evidence can require reversal)
- State v. Marquez, 223 P.3d 931 (N.M. 2009) (improper admission of scientific evidence indicating legal intoxication can decisively tip jury toward conviction)