December 23, 2019- State of New Mexico v. John R. Gonzales, No. A-1-CA-36059

1
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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _______ _
3 Filing Date: December 23, 2019
4 	No. A-1-CA-36059
5 	STATE OF NEW MEXICO,
6 	Plaintiff-Appellee,
7 V .
. 8 JOHN R. GONZALES,
9 	Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY
11 	Pedro G. Rael, District Judge
12 Hector H. Balderas, Attorney General
13 	Santa Fe, NM
14 M. Victoria Wilson, Assistant Attorney General
15 	Albuquerque, NM
16 for Appellee
17 Bennett J. Baur, Chief Public Defender
18 MJ Edge, Assistant Appellate Defender
19 	Santa Fe, NM
20 for Appellant
Court of Appeals of New Mexico
Filed 12/23/2019 9:22 AM

1 	OPINION
2 MEDINA, Judge
3 {l} 	Defendant John Gonzales appeals his convictions for resisting, evading, or
4 obstructing 	an 	officer, 	contrary to 	NMSA 	1978, 	Section 30-22-1.(D) 	(1981);
5 aggravated driving while under the influence of intoxicating liquor or drugs (DWI),
6 contrary to NMSA· 1978, Section 66-8-102(D)(l) (2010, amended 2016); careless
7 driving, contrary to NMSA 1978, Section 66-8-113 (1987); 	and possession of an
·8 	open container, contrary to NMSA 1978, Section 66-8-138 (2013). Defendant raises
9 two issues on appeal: (1) the denial of his motion for a mistrial after the State
10 questioned him about plea negotiations in front of the jury and (2) he was the subject
11 	of a pretextual stop. We reverse and remand for a new trial.
12 BACKGROUND
13 	{2} 	The testimony at trial revealed the following facts. A husband and wife were
14 driving home one afternoon when they saw an unfamiliar car driven by Defendant
15 	pull in and out of their driveway. As Defendant pulled out, he almost struck the
16 couple's vehicle and fence before driving away. The couple followed Defendant and
17 	saw him pull in and out of another driveway. As Defendant drove away, the couple
18 	had to swerve in order to avoid being struck by him, causing a nearby truck to drive
.19 	onto a railroad tie. A few minutes later, Defendant returned and pulled back into the

/
1 same driveway from which he had just pulled out, at which point Officer Caleb
2 Martin arrived in response to a report of a reckless driver.
3 	{3} 	When Officer Martin made contact with Defendant, who was still sitting in
4 the vehicle, he immediately smelled a strong odor of alcohol emanating from
5 Defendant and noticed Defendant had bloodshot, watery eyes. Once Defendant
6 opened the door, he almost fell out of the vehicle. Officer Martin eventually placed
7 Defendant under arrest for DWI. Additionally, when Officer Martin reached in to
8 tum off the ignition and secure Defendant's vehicle, he noticed a nearly empty pint
9 	of whiskey on the passenger seat. Officer Martin drove Defendant to the police
10 station, and as he was escorting Defendant inside, Defendant pulled away, resulting
11 	in Officer Martin pinning him against the wall. Inside the station, Officer Martin
12 asked Defendant if he would submit to a breath or blood test and interpreted
13 	Defendant's lack of response as a refusal.
14 {4} 	Defendant testified in his defense. On direct examination, Defendant testified
15 	that he stopped at a store on his way home and purchased a bottle of whiskey. Once
16 home, Defendant entered his house, retrieved a soda with a cup of ice and returned
17 to his vehicle, where he sat and listened to music until Officer Martin arrived.
18 Defendant denied that he almost fell down or that he resisted arrest, and further
19 testified that he offered to provide a breath, blood, or urine sample.
2

1 {5} 	During the State's cross examination of Defendant, the following colloquy
2 took place:
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6
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9
10
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12
13
14
Q.
A.
Q.
A.
Mr. Gonzales, you realize certain things can happen in this case,
right, if you get convicted, you are looking at jail time, right? 1
Yes, if I did something wrong but I never did anything wrong.
You have to break the law before you can get[-]
Yeah.
I haven't broke any laws. I can't see where he got me on reckless
driving when I never drove my car in the manner of under the
influence .... If I would have done wrong, I would have accepted
the guilty plea like in the past. But how can you plea to something
you didn't do[?] I don't think you would do that. I'm sorry but if
you do nothing wrong, how can you plea to that? How can· you
accept that? You have to do something wrong before you-
15 	The district court interjected, "There is no question pending, Mr. Gonzales. Wait
16 until there is a question, okay." The cross examination continued:
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Q.
A.
Q.
A.
Q.
Mr. Gonzales, you just made a statement that you would never
plea to something like this?
Would you please repeat the question?
You would never plea to something that you didn't do, right?
Well you can't.
Isn't it true that this morning you wanted to plea this case out?
1
Although defense counsel did not object, we note that this question was
improper, as jurors in criminal cases are expressly admonished not to consider the
consequences of their verdict. See UJI 14-6007 NMRA.
3

1 Immediately following the State's question, defense counsel objected, stating, "That
2 is clearly inadmissible," and moved for a mistrial. In response, the State argued that
3 Defendant "opened the door[.]"After a brief bench conference, the district court
4 sustained defense counsel's objection but denied her motion for a mistrial and
5 instructed the jury "to disregard the last statements of the witness about any possible
6 negotiations that may have occurred in this case[.]"
7 {6} 	At the conclusion of trial, Defendant was found guilty of: (1) resisting,
8 evading, or obstructing an officer; (2) aggravated DWI; (3) careless driving; and (4) 	(
9 possession of an open container. This appeal followed.
10 	DISCUSSION
11 	I.
12 A.
13 	{7}
Evidence of Defendant's Plea Attempt Was Not Admissible
Standard of Review
We review the denial of a motion for a mistrial for an abuse of discretion.
14 State v. 	Hernandez, 2017-NMCA-020, 114, 388 P.3d 1016. "The district courtl
15 abuses its discretion in ruling on a motion for mistrial if it acts in an obviously
16 erroneous, arbitrary, or unwarranted manner, or when the decision is clearly against
17 the logic and effect of the facts and circumstances before the court." Id. (internal
18 	quotation marks and citation omitted). In determining whether the district court
19 abused its discretion in denying Defendant's motion for a mistrial, we must address
20 whether the State's question about plea negotiations violated Rule 11-410 NMRA,
4

1 and 	if so, whether it could be cured by the district court's admonition. 	See
2 Hernandez, 2017-NMCA-020, ,-r 14. We begin by turning to the rule generally
3 prohibiting the introduction of plea negotiations at trial and the policy supporting
4 that prohibition.
5 B. 	Rule 11-410 and Supporting Policy
6 	{8} 	Under Rule 	11-410(A)(5), .evidence 	of "a 	statement made 	during plea
7 discussions with an attorney for the prosecuting authority if the discussions did not
8 result in a guilty plea or resulted in a later-withdrawn guilty plea" are not admissible
9 "against the defendant who made the plea or participated in plea discussions[.]"2
10 Rule 11-410 also applies to evidence of the offer itself. See State v. Smile, 2009-
11 	NMCA-064, ,-r 41, 146 N.M. 525,212 P.3d 413 (observing that '~ule 11-410 applies
12 to ... evidence of an offer to plead guilty and statements made in connection with
13 	the offer"). "The only exceptions provided by Rule 11-410 are where another
14 statement made during the same plea or plea discussions has been introduced, if in
2 We note that Rule 5-304(F) NMRA also provides:
Evidence of a plea of guilty, later withdrawn, a plea ofno contest, or of
an offer to plead guilty or no contest to the crime charged or any other
crime, or of statements made in connection with any of the foregoing
pleas or offers, is not admissible in any civil or criminal proceeding
against the person who made the plea or offer.
However, as Defendant does not cite Rule 5-304(F) and relies solely on Rule 11-410
for his argument, our discussion is limited to the latter rule.
5

1 fairness both statements ought to be considered together and in a criminal proceeding
2 for perjury or false statement." Kipnis v. Jusbasche, 2017-NMSC-006,, 1, 388 P.3d
3 654 (internal quotation marks and citation omitted); see Rule 11-410(B)(l). The
4 State does not argue that either of the listed exceptions apply in the instant case.
5 	{9} 	There 	are 	important 	policy 	considerations 	for 	Rule 	11-410' s 	general
6 prohibition against the admission of evidence relating to plea negotiations. "Like the
7 federal counterpart rule from which the [state] rule was taken, the rule is meant to
8 promote the efficient disposition of criminal cases because collateral use of pleas, as
9 admissions of party-opponents under Rule 11-801 NMRA or as other evidentiary
10 implications of guilt, would discourage resolution of criminal proceedings." Kipnis,
11 	2017-NMSC-006,, 1. "Rule [1 l'-]410 embodies the public interest in encouraging
12 negotiations concerning pleas between the criminal defendant and the [s]tate. Guilty
13 	pleas are an essential part of our criminal justice system, and candor in plea
14 discussions aids greatly in the reaching of agreements between the defendant and the
15 	[s]tate." State v. Trujillo, 1980-NMSC-004,, 18, 93 N.M. 724, 605 P.2d 232.
16 {IO} 	Our Supreme Court expounded upon the importance of the role of plea
17 bargaining in Trujillo by acknowledging:
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The negotiated guilty plea serves important functions. The quality of
justice in all cases would suffer if overloaded courts were faced with a
great increase in the number of trials. Tremendous investments of time,
talent, and money, all of which are in short supply and can be better
used elsewhere, would be necessary if all cases were tried.
6

1 Id. 	(omission, internal quotation marks, and citation omitted). In light of these
2 important policy considerations, the Court in Trujillo determined that "Rule 11-410
3 'clos [ed] the door on the admissibility of [statements surrounding plea negotiations]
4 as evidence at trial for either substantive or impeachment purposes' and that 'a
5 weighing of conflicting policies demonstrates that the balance is tipped in favor of
6 interpreting Rule 	[ll-]410 	as 	the 	cloak 	of privilege 	around plea negotiation
7 discussions.' 	" 	Kipnis, 	2017-NMSC-006, 	~ 14 (first and second alterations in
8 original) (quoting Trujillo, 1980-NMSC-004, ~~ 19, 21). Our Supreme Court has
9 also indicated that Rule 11-410 acts as a categorical rule of exclusion, noting that,
10 unlike surrounding evidentiary rules, Rule 11-410 "contains no language which
11 	limits its exclusionary effect." Kipnis, 2017-NMSC-006, ~ 13 (quoting Trujillo,
12 	1980-NMSC-004, 	~ 17). 	Compare 	Rule 	11-410, 	with 	Rule 	11-409 	NMRA
13 	(providing that evidence of offers to pay medical expenses "is not admissible to
14 prove 	liability for 	the 	injury" 	(emphasis 	added)), 	and 	Rule 	11-411 	NMRA
15 	(providing that evidence of a person's liability insurance, or lack thereof, "is not
16 admissible to prove that the person acted negligently or otherwise wrongfully"
17 (emphasis added)). Moreover, in doing so, our Supreme Court has paid more than
18 passing tribute to the interpretation of Federal Rule of Evidence 410 and the idea
19 that the federal counterpart "contains no hint that its categorical rule of exclusion
20 has anything to do with the purpose for which the evidence is offered." Kipnis, 2017-
7

1 NMSC-006, ,r 13 (quoting Glen Weissenberger & James J. Duane, Weissenberger's
2 Federal Evidence§ 410.3 at 214 (7th ed. 2011)). With these considerations in mind,
3 we now tum to an analysis of the State's questioning of Defendant.
4 C. 	Rule 11-410 Bars Admission of Evidence of Defendant's Plea Attempt
5 	{11} 	Despite Rule 11-410's broad protection, the State contends that under the
6 doctrine of curative admissibility, the State's question-"Isn't it true that this
7 morning you wanted to plea this case out?"-was proper since Defendant "raised
8 the 	issue 	of pleading 	guilty 	in 	a 	way 	that misrepresented what 	occurred[.]"
9 Specifically, the State contends that Defendant "opened the door" by "us[ing] the
10 lack of a plea as evidence to support his claim that he 	did not drive while
11 	intoxicated." We disagree.
12 	{12} 	Curative admissibility is a common law evidentiary doctrine that is still
13 	recognized by our courts, despite its lack of codification in our rules of evidence.
14 See State 	v. 	Baca, 	1995-NMSC-045, if 23 	n.2, 	120 N.M. 	383, 	902 P.2d 	65
15 	(recognizing that New Mexico adopted the doctrine of curative admissibility); see
16 also United States v. Bolin, 514 F.2d 554, 558 (7th Cir. 1975) (stating that "[t]he
17 doctrine 	of curative admissibility . . . is well established in the common law of
18 	evidence"). Under the doctrine of curative admissibility, a party may introduce
19 inadmissible evidence to counteract the prejudice created by their opponent's earlier
20 introduction of similarly inadmissible evidence. State v. 	Comitz, 	2019-NMSC-
8

1 011, 147,443 P.3d 1130 ("[W]hen a defendant gives testimony that 'opens the door'
2 to 	inadmissible 	evidence, 	the 	doctrine 	of 	curative 	admissibility 	in 	some
3 circumstances may permit the [s]tate to rebut that claim with otherwise inadmissible
4 evidence." (internal quotation marks and citation omitted)); State v. Ruiz, 2001-
5 NMCA-097, 147, 131 N.M. 241, 34 P.3d 630 ("Our precedents permit otherwise
6 inadmissible evidence to be used to rebut the same under the doctrine of curative
7 admissibility."); Leday v. State, 983 S.W.2d 713, 716 (Tex. Crim. App. 1998) (en
8 bane) ("In the common law of evidence, the doctrine of curative admissibility allows
9 one party to introduce evidence that might otherwise be excluded, to counter the
10 unfair prejudicial use of the same evidence by the opposing party."). Thus, a party
11 	cannot invoke curative admissibility to correct an admissible statement. 3 See Francis
12 A. Gilligan & Edward J. Imwinkelried, Bringing the "Opening the Door" Theory to
13 	a Close: The Tendency to Overlook the Specific Contradiction Doctrine in Evidence
14 Law, 41 Santa Clara L. Rev. 807, 809 (2001) ("Curative admissibility is triggered
15 	only 	when 	the 	opponent 	first 	breaches 	an 	evidentiary 	rule 	by 	introducing
16 	inadmissible evidence." (emphasis added)); see also State v. Fukusaku, 946 P.2d 32,
17 	67 (Haw. 1997) (declining to apply the doctrine of curative admissibility because
3We note, however, that parties may generally impeach misleading evidence
introduced by their opponents through specific contradiction. See generally Gilligan
& Imwinkelried, supra ( discussing the differences between curative admissibility
and specific contradiction).
9

1 defense counsel "introduced admissible evidence, not inadmissible evidence");
\
2 Frederick C. Moss, 	The Sweeping-Claims Exception and the Federal Rules of
3 Evidence, 1982 Duke L.J. 61, 76 (1982) ("The doctrine of curative admissibility
4 should be limited, at least conceptually, to cases ... in which the admission of
5 rebuttal 	evidence 	is 	justified to 	counteract prejudicial 	inadmissible 	evidence
6 introduced by the other side." (emphasis added)); Dale A. Nance, A Theory of Verbal
7 Completeness, 80 IowaL. Rev. 825,869 (1995) (noting that "[c]urative admissibility
8 applies only when the original evidence is properly inadmissible upon objection").
9 	{13} 	Because the doctrine is based on, and limited by, the interest of fairness, the
10 district court has discretion to deny a party's request to invoke curative admissibility,
11 	especially when the court concludes a curative instruction would be effective in
12 ameliorating the prejudice created by the inadmissible evidence. See Perkins v.
13 	United States, 760 A.2d 604, 610 (D.C. 2000) ("Under the doctrine of curative
14 admissibility, the introduction of incompetent or irrelevant evidence by a party opens
15 	the door to the admission of otherwise inadmissible evidence only to the extent
16 necessary to remove any unfair prejudice which might otherwise have ensued from
17 the original evidence. The doctrine is based upon, and limited by, the necessity of
18 removing prejudice in the interest of fairness." 	(internal quotation marks and
19 citations omitted)); State v. Dunlap, 2002 WI 19, 1 14,250 Wis. 2d 466,640 N.W.2d
20 	112 ("[T]he court may allow the opposing party to introduce otherwise inadmissible
10

1 evidence 	[through 	curative 	admissibility] 	if it 	is 	required 	by 	the 	concept 	of
2 fundamental fairness to prevent unfair prejudice."); Gilligan & lll)winkelried, supra,
3 at 829 (noting that "if the judge concludes that the jury could. have complied with
4 the [curative] instruction, that conclusion cuts strongly against applying curative
5 admissibility"); id. at 833 (noting that "courts typically describe the doctrine [of
6 curative admissibility] as a conferral of discretion on the trial judge rather than the
7 grant of a right to the party").
8 	{14} 	Here, the parties do not address the admissibility of Defendant's initial
9 statements about plea negotiations. We question, but do not decide, whether those
10 statements were inadmissible, as the plain language of Rule 11-410 only prohibits
11 	evidence of plea negotiations from being used against the defendant. See Gilligan &
12 Imwinkelried, supra, at 824 ("Although a party may contend that an opponent's
13 	evidence is false or misleading, even false or potentially misleading evidence can
14 satisfy the rules governing the admissibility of evidence.").
15 	{15} 	'However, 	regardless 	of 	whether 	Defendant's 	initial 	testimony 	was
16 	inadmissible-thus triggering the availability of curative admissibility-or not, Rule
17 	11-410 bars the State from introducing evidence of Defendant's plea attempt.
18 Although Defendant's testimony might have misled the jury into believing he did
19 not plead guilty, we do not conclude it created such unfair prejudice that would
20 justify the introduction of Defendant's plea attempt through curative admissibility.
11

1 Trujillo makes clear that, given the importance of plea negotiations in the criminal
2 process, Rule 11-410 "clos[ es] the door" on the admissibility of evidence of plea
3 negotiations. 	Trujillo, 	1980-NMSC-004, ,r,r 19-20. Indeed, 	our Supreme Court
4 anticipated that "some persons may be tempted to testify inconsistently with what
5 they stated previously during plea discussions with the [s]tate." Id. ,r 21. While the
6 Court did not condone such action, it determined that "a weighing of conflicting
7 policies demonstrates that the balance is tipped in favor of interpreting Rule [ 11-]410
8 as the cloak ofprivilege around plea negotiation discussions." Trujillo, 1980-NMSC-
9 004, ,r 21 (emphasis added). Similarly, weighing the need to protect and encourage
10 plea negotiations against the State's need to correct the possible prejudice created
11 	by Defendant's testimony, we conclude that the State was not so prejudiced as to
12 overcome Rule 11-410's prohibition through curative admissibility.
13 	{16} 	In advancing its argument that Defendant "opened the door" to discussing his
14 attempt to plea through curative admissibility, the State relies on cases where we
15 	have applied the doctrine to propensity evidence. See, e.g., State v. Hernandez, 1999-
16 NMCA-105, ,r,r 19-20, 127 N.M. 769,987 P.2d 1156 (concluding that the defendant
17 "opened the door" to the prosecutor's questions about prior domestic violence where
18 the defendant testified that the victim would hit herself when she was mad at the
19 defendant); State v. Andrade, 1998-NMCA-031, ,r 21, 124 N.M. 690, 954 P.2d 755
20 (holding that "[the d]efendant opened the door regarding prior violent episodes
12

1 between [the d]efendant and [the v]ictim," making the prosecutor's questions of
2 "who really beat whom" proper through curative admissibility). However, there are
3 significant differences in the way that the rule prohibiting propensity evidence (i.e.,
4 Rule 11-404 NMRA) and Rule 11-410 operate that raise concerns about extending
5 our holding in those cases to the case at hand. Specifically, our Supreme Court has
6 noted that Rule 11-410 is limited in its exceptions, and that the intended purpose of
7 the evidence does not have bearing on admissibility. Kipnis, 2017-NMSC-006, 113.
8 Rule 11-404, on the other hand, contains numerous exceptions based on the purpose .
9 for which the evidence is introduced. Given these differences, and given the clear
10 import 	of 	Trujillo 	prohibiting 	evidence 	of 	plea 	negotiations 	despite 	any
11 	misrepresentations by defendants, see 1980-NMSC-004, 119, we conclude that
12 Defendant's misrepresentation cannot provide the basis for admission of evidence
13 	of his plea negotiation. Therefore, it was error for the State to bring up Defendant's
14 attempt to plead guilty. We continue our analysis, however, to determine whether
15 	the curative jury instruction remedied the error.
16 D. 	Curative Instructions and Harmless Error
17 {17} 	"The overwhelming New Mexico case law states that the prompt sustaining
18 	of the objection and an admonition to disregard the answer cures any prejudicial
19 effect of inadmissible testimony." State v. Simonson, 1983-NMSC-075, 121, 100
20 N.M. 297,669 P.2d 1092. However, "one of the exceptions to this general rule arises
13

1 when 	inadmissible 	testimony 	is 	intentionally 	elicited 	by 	the 	prosecution."
2 Hernandez, 	2017-NMCA-020, 117 	(alteration, 	internal 	quotation_ 	marks, 	and
3 citations omitted). When this occurs, "the general rule does not apply regardless of
4 whether the 	district court admonishes the jury to 	disregard the 	inadmissible
5 testimony[,]" and instead this Court must determine if harmless error occurred. Id
6 1117,20.
7 {18} 	Generally, issues of whether inadmissible testimony was intentionally elicited
8 arise when the prosecutor asks a witness a question, and the ensuing testimony is
9 inadmissible. See, 	e.g., State v. 	Armijo, 2014-NMCA-013, 112, 316 P.3d 902
10 (concluding that the state intentionally elicited inadmissible testimony where the
11 	state made no attempt to justify questions seeking the officer's unqualified opinion
12 and the court could not identify a proper purpose for the prosecutor's questions);
13 	State v. Ruiz, 2003-NMCA-069, 118-9, 133 N.M. 717, 68 P.3d 957 (holding that the
14 	state intentionally elicited inadmissible testimony where the prosecutor "directly
15 	asked the witness to say what he should have known, and what the witness seemed
16 to know, was forbidden"). The analysis of intentionality is straightforward in this
17 case because it is the State's question, and not resulting witness testimony, that
18 	contained the inadmissible reference to Defendant's plea negotiations. Regardless
19 	of any argument by the State regarding whether Defendant "opened the door," the
20 State's question to Defendant asking him to affirm his earlier desire to plead was an
14

1 intentional reference to Defendant's plea negotiation. As a result, 	we cannot
2 conclude that the district court's curative instruction cured the prejudicial effect of
3 the State's question, and we continue our analysis to determine if the error was
4 harmless. See Hernandez, 2017-NMCA-020, i-fi-f 17, 20.
5 {19} 	Generally, violations of the rules of evidence are considered to be non-
6 constitutional error, which is harmless "when there is no reasonable probability the
7 error affected the verdict." State v. Duran, 2015-NMCA-015, ,-r 19, 343 P.3d 207
8 (internal quotation marks and citation omitted). However, given the constitutional
9 rights that an erroneous admission of Defendant's attempt to plead guilty could touch
10 upon, we consider the error to be of the constitutional variety, which is harmless
11 	"only if we conclude that there is no reasonable possibility the error contributed to
12 the jury's decision to convict Defendant." State v. Tollardo, 2012-NMSC-008, i-f 45,
13 	275 P.3d 110 (emphasis added); see Smile, 2009-NMCA-064, i-f 46 (applying a
14 constitutional harmless error test because the improper admission of plea negotiation
15 	evidence "could touch upon various constitutional rights"). "[T]here are no scientific
16 answers to the ultimate question of whether the trier of fact was influenced by an
17 error[.]" Tollardo, 2012-NMSC-008, i-f 43 (internal quotation marks and citation
18 omitted). Nonetheless, reviewing courts must endeavor to determine the likely effect
19 	of the error on the jury's verdict. Id. In conducting our review, we analyze the error
20 on a case-by-case basis, "evaluat[ing] all of the circumstances surrounding the error,
15

1 including examining the error itself, the source of the error, the emphasis on the
2 error, and whether the error was cumulative or introduced new facts." Hernandez,
3 2017-NMCA-020, ,r 20. Additionally, "evidence of a defendant's guilt separate from
4 the error may often be relevant, even necessary, for a court to consider, since it will
5 provide context for understanding how the error arose and what role it may have
6 played in the trial proceedings; but such evidence ... can never be the singular focus
7 of the harmless error analysis." Tollardo, 2012-NMSC-008, ,r 43.
8 {20} 	Evaluating all of the circumstances surrounding the error, we cannot conclude
9 the error was harmless. First, the error was not cumulative and introduced new facts.
10 While Defendant was the first to mention pleas by stating he would have accepted a
(
11 	guilty plea if he had done something wrong, it was the State that brought the
12 discussion out of the abstract and revealed that Defendant tried to plead guilty that
13 	very morning. Revealing this fact immediately after Defendant asserted that he
14 would have pleaded guilty if he had done something wrong undoubtedly had an
15 	impact on Defendant's innocence (or guilt) in the minds of the jury, as the State
16 essentially used Defendant's testimony to equate his plea negotiation with an
17 admission 	of guilt. 	Cf 	Hernandez, 	2017-NMCA-020, ,r 21 	(concluding that a
18 reference to the defendant's purported confession was not harmless given the highly
19 prejudicial nature of confessions on jurors). To put it another way, the State's
20 revelation prompted the jury to consider: Defendant would have pleaded guilty if he
16

1 did something wrong; he tried to plead guilty this morning; therefore, Defendant
2 must have done something wrong. Although, as the State points out, defense counsel
3 objected to the question before Defendant had the opportunity to answer it, the
4 damage was already done: the jury had learned that Defendant attempted to plead .
5 guilty that morning, an act which, according to Defendant's own testimony was
6 essentially an admission of guilt. Additionally, the State's reference to Defendant's
7 plea attempt impeached his credibility-which was paramount to his defense, given
8 his challenge of the other witnesses' version of events-by demonstrating that
9 Defendant did something he testified he would not do (i.e., plead guilty to something
10 he claimed he did not do). Furthermore, the error was emphasized before the jury
11 	during the back and forth between the State and defense counsel in which the State
12 claimed that Defendant "opened the door," and defense counsel called the question
13 	"highly inadmissible" and moved for a mistrial.
14 	{21} 	This Court has acknowledged that admission of evidence of a defendant's
15 	attempt to plead guilty "can be highly prejudicial because it is . . . difficult to
16 conceive a disclosure more apt to influence a jury than the information that the
17 accused had at one time pleaded guilty to the commission of the crime with which
J8 he stands charged." Smile, 2009-NMCA-064, ,r 43 (alterations, internal quotation
19 marks, 	and citation omitted); 	see also 	id. ,r 74 (Vigil, 	J., 	concurring in part,
20 dissenting in part) ("[A]t trial [the d]efendant [is] entitled to every constitutional
17

1 safeguard and presumption associated with a plea of 'not guilty.' Because of the
2 nature of a guilty plea, ... improperly admitting into evidence [the d]efendant's
3 attempt to plead guilty destroy[s the d]efendant's constitutional presumption of
4 innocence."). While the district court admonished the jury to disregard "any possible
5 negotiations that may have occurred," given the highly prejudicial nature of the
6 State's disclosure under the circumstances of this case, we cannot conclude that there
7 was "no reasonable possibility the error contributed to the jury's decision to convict
8 Defendant." Tollardo, 2012-NMSC-008, 145. Accordingly, the district court abused
9 its discretion in denying Defendant's motion for a mistrial.
10 E. 	Sufficient Evidence for Retrial
11 	{22} 	In light of our determination that the district court abused its discretion in not
12 	granting a mistrial, we now consider whether retrial is appropriate. Although
13 	Defendant does not challenge the 	sufficiency 	of the evidence underlying his
14 convictions, in order to avoid potential double jeopardy concerns that may arise if
15 	Defendant is retried, we consider whether the State put forth sufficient evidence to
16 convict Defendant of the charges and justify a second trial. Hernandez, 	2017-
17 NMCA-020, 130. "In reviewing the sufficiency of the evidence, this Court views
18 the evidence in the light most favorable to the guilty verdict, indulging all reasonable
19 	inferences and resolving all conflicts in the evidence in favor of the verdict." Id.
20 (alteration, internal quotation marks, and citation omitted). Given that there was
18

1 testimony at trial regarding: (1) Defendant's difficulties with stability and balance;
2 (2) the odor of alcohol emanating from his person, his bloodshot, watery eyes, ahd
3 slurred speech; (3) Defendant's refusal to take a chemical test; (4) Defendant pulling
4 away from the arresting officer while being escorted into the police station; (5) the
5 bottle of alcohol in Defendant's front seat; and (6) Defendant's erratic driving, we
6 conclude there was sufficient evidence to support Defendant's convictions for
7 aggravated DWI; resisting, evading, or obstructing an officer; possession of an open
8 container; and careless driving. See State v. Soto, 2007-NMCA-077,, 34, 142 N.M.
9 32, 162 P.3d 187 (concluding there was sufficient evidence to support an aggravated
10 DWI conviction where officers observed the defendant driving, the defendant had
11 	red, bloodshot, watery eyes and smelled of alcohol, officers found empty beer cans
12 where the defendant admitted to have been drinking, and the defendant refused to
13 	take a chemical test), overruled on other grounds by Tollardo, 2012-NMSC-008; see
14 also 	UJI 	14-2215 	NMRA 	(listing essential elements 	of resisting, 	evading, 	or
15 	obstructing an officer); § 66-8-138 (listing essential elements of possession of open
16 container); UJI 14-4505 NMRA. (listing essential elements of careless driving).
17 Thus, Defendant's double jeopardy rights will not be affected by a retrial.
18 	II. 	Defendant 	Failed 	to 	Adequately 	Preserve 	Whether 	His 	Stop 	Was
19 	Pretextual
20 	{23} 	Defendant additionally contends that "[t]he police used the stop, investigation,
21 	and arrest of [Defendant] as pretexts for [his] continued harassment." Defendant
19

1 raises this argument pursuant to State v. Franklin, 1967-NMSC-151, 78 N.M. 127,
2 428 P.2d 982, and State v. Boyer 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1,
3 which require appellate counsel to advance his argument even if the merits of the
4 argument are questionable. Defendant never raised this issue before the district
5 court. Preservatiop is routinely required for claims of pretext. See Schuster v. N.M
6 Dep 't of Taxation & Revenue, 2012-NMSC-025, ,, 32-33, 283 P.3d 288 (addressing
7 whether the appellant preserved his pretext argument); State v. 	Scharff, 	2012-
8 NMCA-087,, 19,284 P.3d 447 (determining the defendant's pretext argument was
9 insufficient where it was not adequately preserved below because no testimony was
10 elicited indicating that the traffic stop was a result of pretext, the issue was not raised
11 	during the suppression hearing, and no ruling by the district court was invoked). In
12 determining whether a stop was pretextual, the district court must "consider the
13 	totality of the circumstances, judge the credibility of witnesses, [and] weigh the
14 evidence ... [including] the objective reasonableness of an officer's actions and the
15 	subjective intent of the officer[.]" State v. Ochoa, 2009-NMCA-002,, 39, 146 N.M.
16 32, 206 P.3d 143. Given this fact-dependent inquiry, which this Court is unable to
17 make for the first time on appeal, we decline to address Defendant's pretext
18 argument.
20

1 CONCLUSION
2 	{24} 	For the foregoing reasons, we conclude that Rule 11-410 barred the State from
3 questioning Defendant about his plea negotiations, and the district court abused its
4 discretion in not granting a mistrial. We therefore reverse Defendant's convictions
5 and remand for a new trial.
6 {25} 	IT IS SO ORDERED.
7
8
9 WE CONCUR:
!Ol \.lL~11 	M. MONICA ZAMO
21