OPINION
{1} Defendant David Wildgrube appeals his conviction and sentence for homicide by vehicle in violation of NMSA 1978, § 66-8-101 (1991). Defendant challenges his conviction on the grounds of insufficient evidence to support the conviction, errors in the admission of evidence, prosecutorial misconduct, and errors in sentencing. He also contends that the State is bound by a post-trial agreement between the district attorney and Defendant. We affirm the conviction and sentence.
Background
{2} Late in the evening of September 10, 1999, after leaving a local bar called Zebediah’s, Defendant struck the victim with his ear as the victim walked along Highway 434 in Angel Fire, New Mexico. Defendant did not report the collision to the police even though he had in his car a cellular telephone and a ham radio, which could have been used to summon help. The collision killed the victim, whose body was found early the following morning lying in a field on the other side of the guard rail by three men who notified the police. After the police arrived at the scene, they were approached by an individual who told them that the car that struck the victim could be found at a nearby apartment complex. The Angel Fire Police Department dispatched Lieutenant Walker to the apartment complex. Upon his arrival, Lt. Walker received an additional notice that Defendant had just called 911 to report the incident. Lt. Walker found Defendant in the parking lot, standing by his damaged car, and advised him of his Miranda rights. The officer then asked Defendant about the events of the previous evening. After answering several questions, Defendant stated that he wanted to speak with an attorney. Upon completion of the police investigation, a grand jury indicted Defendant, charging him with homicide by vehicle and leaving the scene of an accident involving death or great bodily injury. Following the trial, Defendant was convicted of homicide by vehicle and acquitted of the second charge. The trial court imposed the statutory sentence for a third degree felony of six years and also adjudged the crime to be a serious violent offense. See NMSA 1978, § 31-18-15(A)(4) (1999); NMSA 1978, § 33-2-34(L)(4)(n) (1999).
Sufficiency of the Evidence
{3} Defendant contends that there was insufficient evidence presented at trial to convict him of vehicular homicide. We review the sufficiency of the evidence under a substantial evidence standard. State v. Sutphin,
{4} In this case, the jury was instructed, based on UJI 14-240 NMRA 2003, that the State was required to prove that Defendant “operated a motor vehicle while under the influence of intoxicating liquor or in a reckless manner” and “thereby caused the death of [the victim].” Defendant challenges only the sufficiency of the evidence regarding impairment and reckless driving; he does not dispute that his car struck and killed the victim.
{5} The jury received an instruction defining “under the influence of intoxicating liquor” as follows:
A person is under the influence of intoxicating liquor when as a result of drinking such liquor the person is 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.
UJI 14-243 NMRA 2003.
{6} Defendant contends that there was insufficient proof of impairment or intoxication presented at trial. He bases this contention on the testimony of two of the people drinking with him that evening who stated that Defendant did not appear to be intoxicated. Contrary to Defendant’s assertion, however, there is ample evidence of impairment or intoxication in the record. During his direct testimony, Defendant admitted that he had consumed a half carafe of wine, approximately sixteen ounces, and two additional alcoholic drinks that evening. See State v. Omar-Muhammad,
{7} There was also substantial evidence to support a jury determination that Defendant operated his vehicle in a reckless manner causing the death of the victim. A person has operated a motor vehicle in a reckless manner if he or she “drove with willful disregard of the safety of others and at a speed or in a manner that endangered or was likely to endanger any person.” UJI 14-241 NMRA 2003. The evidence that Defendant had been drinking alcohol before driving is relevant to the jury’s consideration of Defendant’s recklessness. See State v. Sandoval,
Admission of Evidence
{8} Defendant claims that the trial court committed reversible error (1) by refusing to admit evidence of the victim’s blood alcohol level during his cross-examination of the pathologist, (2) in admitting the testimony of one of the investigating officers, and (3) by refusing to allow the jury to replay the tape recordings of Defendant’s 911 call and his testimony before the grand jury. “An evidentiary ruling within the discretion of the court will constitute reversible error only upon a showing of an abuse of discretion, and a demonstration that the error was prejudicial rather than harmless.” State v. Jett,
Testimony of the Pathologist
{9} On direct examination, the pathologist testified that the victim’s death was caused by multiple blunt force injuries and that the internal injuries had been so severe that there was more than one fatal injury. During cross-examination, Defendant established that the pathologist had requested the OMI toxicology laboratory to perform drug and alcohol screening tests as part of the autopsy-
{10} When Defendant asked the pathologist about the results of the blood alcohol test, the State objected. After the jury was excused, Defendant explained that he wanted to introduce the test results as being “[t]he facts or data in the particular case upon which an expert bases an opinion or inference.” Rule 11-703 NMRA 2003. He also relied upon Rule 11-705 NMRA 2003, which provides that on cross-examination, expert witnesses may “be required to disclose the underlying facts or data” upon which they base their opinion. However, when questioned by Defendant during a voir dire examination about the basis of her opinion regarding the cause of death, the pathologist testified that she had arrived at her conclusion and completed the death certificate without waiting for the toxicology report. She stated that although she ordered the toxicology report to be thorough, she did not need it or take it into consideration as a basis for forming her opinion that the victim died of blunt trauma injuries. Accordingly, the trial court ruled that Defendant could not bring in evidence of the victim’s blood alcohol level through the pathologist. The court did not rule that the evidence would itself be inadmissible, but only that the pathologist was not the proper witness to introduce the evidence. Defendant did not try to introduce the victim’s blood alcohol level through any other witness during the trial. On appeal, he argues that the court’s ruling was in error and prejudiced his defense.
{11} Relying upon State v. Ortiz-Burciaga,
Testimony of the Investigating Officer
{12} Defendant objects to part of the testimony of Richard Anglin, an Angel Fire police officer, and to the introduction into evidence of a diagram prepared by the officer. On September 11, 1999, Officer Anglin secured and investigated the crime scene where the victim’s body was found. The officer testified that he had been a police officer for over twenty years and had conducted a number of highway accident investigations. He testified extensively and without objection about the evidence collected at the crime scene and the methods used by the police to gather the evidence. He described the system used to measure the location of the debris which resulted from Defendant’s car having struck the victim so that the debris distribution could be used to reconstruct the collision. The officer testified that he entered the measurements into a computer which used the measurements to draw a diagram of the scene showing the path of Defendant’s car, the point of impact with the victim’s body, the point at which the body came to rest, and the location of other physical evidence at the scene. He testified that the diagram accurately represented the measurements he had taken at the crime scene.
{13} When the State moved to enter the diagram as an exhibit, Defendant objected that the diagram was speculative and that it was beyond the capability of the officer to form such a conclusion. The court denied the objection, observing that the officer’s training and experience permitted him to give an opinion, as a lay witness, about the meaning of the debris path. The court allowed Defendant to cross-examine the officer on this point. Defendant subsequently conducted an extensive cross-examination of Officer Anglin concerning the collection of data, the preparation of the diagram, and his expertise in using the computer program.
{14} Defendant claims that the admission of the testimony and the exhibit were in error because the officer was not an expert witness and therefore not competent to give this testimony under Rule 11-702 NMRA 2003. Officer Anglin was not offered by the State as an expert witness or designated as an expert by the court under Rule 11-702; rather, the challenged evidence was admitted under Rule 11-701 NMRA 2003. Rule 11-701 governs the admissibility of opinion testimony by lay witnesses and permits them testimony in the form of opinions or inferences when those opinions or inferences are “(A) rationally based on the perception of the witness and (B) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.” Diagrams and exhibits are admissible to illustrate testimony as long as they are not misleading. See Cantrell v. Dendahl,
{15} The officer’s testimony conformed to the conditions established in Rule 11-701; it was based on his perceptions and was helpful to a clear understanding of the testimony about the location of the debris. See Jones v. State,
The Grand Jury and 911 Tapes
{16} Defendant argues that the trial court committed reversible error by not permitting the jury to replay tape recordings of Defendant’s grand jury testimony and 911 call. During deliberations, the jury requested a tape recorder. The trial court initially denied the request, telling the jurors to rely upon their memories of the testimony. Defendant objected to the court’s response.
{17} While the jury was still deliberating, the trial court reconsidered its position and decided, relying upon Rule 5-610(A) NMRA 2003 and State v. Fried,
{18} Defendant claims that the denial of access to the tapes improperly undercut the defense and bolstered the prosecution and that he was thereby prejudiced. He claims that the tapes were crucial to rebut the State’s theory that he had intentionally avoided the police the night of the accident and that the verdict was distorted by the trial court’s initial refusal to replay the tapes. We are not persuaded by these assertions. First, the jury was offered an opportunity to listen to the tapes once more before it returned its verdict. Second, as Defendant acknowledges, he was acquitted of leaving the scene of an accident involving death or great bodily injury. A reviewing court does not speculate about how the jury arrived at its verdict. State v. Lacey,
Prosecutorial Misconduct
{19} Defendant argues that the prosecutor twice improperly commented on his having invoked his right to counsel after receiving Miranda warnings. He claims that the first comment occurred during the direct examination of Lt. Walker and the second during the cross-examination of Defendant’s trial testimony. He asserts that the prosecutor’s comments constituted misconduct, requiring reversal of his conviction.
{20} When an issue of prosecutorial misconduct has been preserved by a specific and timely objection at trial, we review the claim of error by determining whether the trial court’s ruling on the claim was an abuse of discretion. Allen,
Lt. Walker’s Testimony
{21} Defendant argues that during the testimony of Lt. Walker the prosecutor improperly elicited a comment about Defendant’s having invoked his Miranda right to silence. On direct examination, the prosecutor asked about the officer’s initial meeting with Defendant in the apartment complex parking lot. In describing the sequence of the interview, Lt. Walker testified that, after advising Defendant of his Miranda rights, he asked Defendant what had happened the evening before. Defendant responded that he had been at Zebediah’s and that he had arrived at the bar around 9:30 p.m. and left between 11:30 and midnight. The officer testified that Defendant told him that on his way home he had leaned over to the passenger side of his car to get a cell phone when he hit what he thought was a deer. Defendant stated that he stopped and looked around from inside the car and, seeing nothing, drove home.
{22} The comment Defendant contends to have been improperly elicited occurred during the following exchange between the prosecutor and Lt. Walker:
[Prosecutor:] Did you ask whether he had had anything to drink at Zebediah’s?
[Lt. Walker:] I asked if he had had anything to drink. And he said he had some wine. I then asked him how much he had to drink. And at that time, he stated he didn’t want to state anything further until he had consulted with an attorney.
[Prosecutor:] And he told you he went home or left Zeb’s about what time?
{23} Because no objection was made by Defendant at trial, we review for fundamental error. In assessing whether a comment has been improperly elicited by the state, our courts have distinguished between inadvertent remarks made by a witness and those that are intentionally solicited by a prosecutor. See, e.g., State v. Gonzales,
{24} In this case, the exchange between the prosecutor and Lt. Walker occurred during a narrative of events and was therefore similar to the circumstances in Baca, in which our Supreme Court determined that the detective’s comment had been “unsolicited, and possibly inadvertent.” Baca,
Cross-examination of Defendant
{25} Defendant also asserts that the prosecutor questioned Defendant during cross-examination about invoking his right to silence. In her cross-examination of Defendant, the prosecutor devoted most of her questions to Defendant’s claim that he did not know that he struck the victim, but rather believed he had hit a deer when he left the scene. This line of questioning related to the charge of leaving the scene of an accident involving death or great bodily injury. The prosecutor also pointed out the inconsistencies between Defendant’s earlier statements to Lt. Walker and to the grand jury and his trial testimony, which had been more self-exculpatory. Defendant, accompanied by defense counsel, had read a prepared statement to the grand jury about the circumstances leading to his invocation of counsel. The State had played the recording of Defendant’s grand jury testimony at the close of its ease without objection. The prosecutor cross-examined Defendant about the differences between his previous accounts about damage to his car and reaching for the cell phone and his testimony at trial.
{26} In the questioning at issue, the prosecutor challenged Defendant’s testimony during direct examination that he had been too upset by the news of the victim’s death to talk with the officer. Defendant had testified as follows about his decision to stop answering Lt. Walker’s questions and to consult with an attorney:
[Defense attorney:] Let’s get back to that conversation with Officer Walker. Do you remember him asking you any questions?
[Defendant:] Yes.
[Defense attorney:] What questions?
[Defendant:] I don’t know if he asked where I was or what I was doing, or whatever. But, I — I said that I — or if I had seen him. I said yes, I had — I think I had asked him if he knew who it was. I think that’s how that went. And he said he was wearing a big black cowboy hat, and I said, “Oh, my God, I know the guy,” or I know who it is, or something of that nature.
And — and in the course of that, that’s what I did, I said I saw him at Zebediah’s the night before. He asked me what I was doing, and did I have anything to drink. And I said I had some wine. And I don’t know what stretch of time this was, exactly. But it was during this time that shortly after that, I — I realized I — I couldn’t concentrate very well because I was so shook up about it. And I said I better wait to talk to an attorney, because there’s something obviously pretty major here.
[Defense attorney:] What did Officer Walker say to that?
[Defendant:] He said he understood.
In her cross-examination, the prosecutor pointed out that Lt. Walker had simply confirmed what Defendant had already reported to 911 — that he had struck someone with his car the previous night. She also reminded Defendant that he had continued to answer the officer’s questions, in contrast to his trial testimony.
{27} On appeal, Defendant challenges the following exchange:
[Prosecutor:] Mr. Wildgrube, it was not until Mr. — or Officer Walker asked you about how much you had had to drink at Zebediah’s that you decided that you better not answer his questions; is that correct?
[Defense Attorney:] I’m gonna object to that, your Honor.
THE COURT: Overruled.
Relying upon Doyle v. Ohio,
{28} The facts of this case are more similar to those of Anderson v. Charles,
Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.
Id. at 408. The Court determined this kind of questioning to be proper because it was designed to elicit an explanation for a prior inconsistent statement rather than to draw inferences from silence. Id. at 409. In conclusion, the Supreme Court stated: “Each of two inconsistent descriptions of events may be said to involve ‘silence’ insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of ‘silence,’ and we find no reason to adopt such a view in this case.” Id.; accord State v. Loera,
{29} The State also argues that Defendant cannot give an explanation to the jury for his invocation of counsel and then claim error occurred when he was cross-examined about his testimony. As the Supreme Court held in Brown v. United States,
If [the defendant in a criminal case] takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness.... [H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.
See also State v. Olguin,
{30} We must determine, therefore, whether the trial court abused its discretion in overruling Defendant’s objection. We do not disturb such a ruling “unless its ruling is arbitrary, capricious, or beyond reason.” State v. Duffy,
{31} Although we will address Defendant’s claim as being preserved below, we note initially that when Defendant objected, he did not state the nature of his objection or move to strike the question to prevent a response. On appeal, Defendant asserts that the objection was to prosecutorial misconduct related to the improper nature of the prosecutor’s question on cross-examination. However, there is nothing in the record to indicate that Defendant specifically alerted the trial court to his current claim that the question was an improper comment on Defendant’s post-Miranda invocation of his right to counsel. After the trial court overruled the objection, Defendant did not again object when the prosecutor concluded the cross-examination with two similar questions, nor did he ask for a limiting instruction.
“[I]t is the responsibility of counsel at trial to elicit a definitive ruling on an objection from the court. It is also trial counsel’s duty to state the objections so that the trial court may rule intelligently on them and so that an appellate court does not have to guess at what was and what was not an issue at trial.”
Harrison,
{32} At the point in the trial when Defendant objected, Defendant’s invocation of his right to counsel had already been presented to the jury without objection by Lt. Walker’s testimony, by a tape recording of Defendant’s grand jury testimony, by the testimony of Defendant’s brother (a defense witness), and by Defendant’s direct examination. The trial court could well have concluded that Defendant had opened the door or that the prosecutor’s questions were cumulative. It may have appeared to the court that Defendant had made a tactical decision not to object to the questions.
{33} When viewed in context, the prosecutor’s statements did not prejudice Defendant. See State v. Johnson,
Sentencing
{34} Defendant claims that the trial court erred when it determined that the offense of vehicular homicide was a serious violent offense under Section 33-2-34, the Earned Meritorious Deductions Act (EMDA). At the sentencing hearing, the trial court heard testimony from friends and relatives of the victim. Defendant also presented testimony from friends and relatives as well as that of a clinical psychologist who opined that Defendant was not alcohol dependent. After the testimony of witnesses, the prosecutor referred to an agreement between the district attorney and Defendant and made no argument as to sentencing. Instead, he stated that he had nothing to add to the testimony at the sentencing hearing, the evidence presented at trial, and the information contained in the presentence report, but would leave the sentence to the discretion of the court. Defendant argued that a sentence of probation and community service with the Boy Scouts would be sufficient punishment. The trial court imposed a six-year sentence for the vehicular homicide, as a third degree felony resulting in the death of a human being under Section 31-18-15(A)(4). See State v. Guerro,
{35} Defendant argues that the trial court’s determination that vehicular homicide was a serious violent offense was not supported by the evidence presented at trial or at the sentencing hearing. Defendant raises this issue as a question of fundamental error because he did not object to the trial court’s determination during the sentencing hearing. Rule 12-216(B) NMRA 2003. The principle of fundamental error is applied to prevent a miscarriage of justice. State v. Osborne,
{36} Under the EMDA, prisoners convicted of serious violent offenses may earn four days of credit for participation in various programs, while prisoners convicted of nonviolent offenses may earn up to thirty days per month. Section 33-2-34(A)(l), (2). The EMDA provides that vehicular homicide is a serious violent offense if the court so determines, based upon “the nature of the offense and the resulting harm.” Section 33-2-34(L)(4)(n). In making this determination, the court “must find either an intent to do serious harm or knowledge that one’s acts are reasonably likely to result in serious harm.” State v. Morales,
{37} The trial court’s findings in this case conform with the standard articulated in the statute. The court stated that, in making the determination that the vehicular homieide in this case was a serious violent offense, it had considered the evidence presented at trial, including Defendant’s testimony, the testimony at the sentencing hearing, and the presentence report. The court first expressed doubt about the psychologist’s opinion that Defendant was not alcohol dependent. The court then stated that in addition to the other evidence, it considered the information, contained in the presentence report, that the vehicular homicide was the fourth time that Defendant had been arrested for an alcohol-related driving offense and that he had two previous convictions for DWI. This time, the court observed, Defendant’s practice of continuing to drink and drjve caused the victim’s death. On these facts, the trial court could reasonably conclude that the vehicular’ homicide was a serious violent offense.
{38} The record further supports the trial court’s determination that the vehicular homicide was committed with “knowledge that one’s acts are reasonably likely to result in serious harm.” Morales,
{39} Defendant also asserts that his procedural due process rights were violated because he had no notice that the trial court intended to make a finding under the EMDA. As we understand his argument, Defendant is equating the serious violent offense determination under the EMDA to the aggravation of a sentence under NMSA1978, § 31-18-15.1 (1993), because, he contends, the finding of a serious violent offense increases the penalty for his crime.
{40} A similar claim was raised in Morales, but this Court did not agree, concluding that the EMDA did not add time to the defendant’s sentence, because the “[d]efendant’s sentence before application of the EMDA was 12 years, and it was still 12 years after application of the EMDA.” Morales,
{41} Defendant relies upon Caristo v. Sullivan,
{42} Finally, we note that at the time Defendant was sentenced in December 2000, the EMDA had been in effect since July 1, 1999. Enactment of the statute would have put Defendant on notice. See State v. Tower,
{43} To the extent that Defendant’s claim may be seen as a challenge to the constitutionality of the statute, Morales addressed the issue and concluded that, because the EMDA involved sentencing factors, it complied with Apprendi v. New Jersey,
Agreement with District Attorney
{44} As we understand Defendant’s brief in chief, he contends that the State is bound by an agreement made after the trial by the district attorney of the Eighth Judicial District and Defendant. Defendant and the district attorney reached an agreement as to sentencing. They also agreed that if the trial court did not accept the recommendation, the district attorney would stipulate to a mistrial and agree to a new trial for Defendant. Apparently, as part of any motion for a new trial, the agreement stated that the district attorney would “confess error.” The nature of that error is not part of the record.
{45} The State responds that the district attorney did honor the agreement at the sentencing hearing, noting that the trial court was not bound by an understanding as to sentencing between Defendant and the district attorney. Cf. State v. Mares,
{46} In response to Defendant’s claim that the agreement is still somehow binding to confess error, the State points out that on appeal the attorney general, not the district attorney, represents the State. See NMSA 1978, § 8-5-2(A) (1975) (stating that the attorney general shall “prosecute and defend all causes in the supreme court and court of appeals in which the state is a party or interested”). Further, as the State points out, even were the State to “confess error,” this Court is not bound by a concession of error on appeal made by the attorney general. See State v. Martinez,
Conclusion
{47} We affirm Defendant’s conviction and sentence for vehicular homicide.
{48} IT IS SO ORDERED.