October 08, 2013 – State v. Edward Armijo, No. 32,139

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	OCTOBER 8, 2013
NO. 32,139
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
EDWARD ARMIJO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Charles W. Brown, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Ralph E. Trujillo, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Acting Chief Public Defender
Vicki W. Zelle, Assistant Appellate Defender
Albuquerque, NM
for Appellant

OPINION
FRY, Judge.
{1} 	Defendant Edward Armijo appeals his first-offense conviction for driving under
the influence of intoxicating liquor (DWI) entered by the metropolitan court and
subsequently affirmed by the district court following on-record review. In this appeal,
Defendant asserts four theories of trial error, including error in jury selection, in the
admission of hearsay, in the admission of improper opinion testimony, and cumulative
error. 	Having reviewed the metropolitan court proceedings, we agree that—in the
specific context of this case—there is a reasonable probability that the jury’s verdict
may have been induced by the unqualified opinion testimony of a witness for the state.
We therefore reverse on that basis. Because the remaining issues are unlikely to recur
on remand, we express no opinion on the other errors claimed by Defendant.
BACKGROUND
{2} 	Defendant was tried pursuant to a criminal complaint charging him with DWI,
speeding, and failure to maintain a traffic lane. 	Because the jury acquitted him of
failing to maintain a traffic lane and Defendant does not appeal his conviction for
speeding, only the conviction for DWI is at issue in this appeal. With regard to that
charge, the State’s evidence at trial consisted of the results of a breath alcohol test and
the testimony of two police officers. The State’s first witness, Officer Eric Hammon,
testified that he used radar to determine that Defendant was driving forty-five miles

2
per hour on a road with a posted speed limit of thirty-five miles per hour. Officer
Hammon also saw Defendant’s car drift to the right within his lane so that the
passenger-side tires of his car touched the right-hand lane line. 	Officer Hammon
pulled Defendant over for speeding and failure to maintain his lane. Officer Hammon
testified that when he approached the car, Defendant was behind the wheel, there were
two passengers in the car, and he “could smell the distinct odor of an alcoholic
beverage emitting from him.” Officer Hammon also testified that Defendant’s eyes
were “bloodshot and watery,” that he “could detect some slurring of his speech,” and
that Defendant reported having had “one beer earlier in the evening.”
{3} 	Officer Hammon called for a DWI unit to continue the investigation. Officer
Marisa Martinez arrived ten minutes later to conduct a DWI investigation. Officer
Martinez was the State’s second witness. She testified that Defendant’s eyes were
bloodshot and watery, that she noticed an odor of alcohol, and that the Defendant told
her he had a beer ten minutes before he was pulled over. 	Officer Martinez then
administered three field sobriety tests: a horizontal gaze nystagmus test, a walk-and-
turn test, and a one-leg-stand test. 	Defendant performed the horizontal gaze
nystagmus test as instructed. The walk-and-turn test required Defendant to walk in
a straight line for nine steps with his hands at his sides while touching heel-to-toe, to
turn around, and to walk back in a similar fashion. In performing that test, Defendant

3
missed touching his heel to his toes twice, did not turn in the way Officer Martinez
instructed, and once raised his arms from his sides. The one-leg-stand test required
Defendant to raise one foot six inches off the ground and maintain that pose while
counting out loud for thirty seconds. Officer Martinez testified that, while doing so,
Defendant “was swaying while balancing and he raised his arms for balance.”
{4} 	Officer Martinez determined that Defendant “was showing the signs of
impairment,” handcuffed him, and took him to the transport center to test his breath
alcohol content. 	Officer Martinez tested two breath samples and the breath card
showing the test results was admitted into evidence at trial. 	That card showed
Defendant’s breath scores for the two samples to be .06 and .05 grams per 210 liters
of breath. At the close of Officer Martinez’s direct examination, the State asked her
whether .06 and .05 is “a particularly high breath score,” before rephrasing the
question to, “is that breath score over the legal limit?” Defendant’s objection to that
question was sustained, and the State passed the witness to the defense.
{5} 	Defendant then cross-examined Officer Martinez and the State conducted a re-
direct examination. At the end of that re-direct examination, the State returned to the
topic of Defendant’s breath alcohol content, asking with regard to his breath scores
of .06 and .05, “what does that indicate to you?” 	Defendant’s objection to that
question was sustained, and the State asked “is a .06/.05 consistent with [D]efendant’s

4
admission of one beer?” Officer Martinez answered “no, sir,” and the State followed
up with the question “is a .06/.05 consistent with more than one beer?” Defendant
objected again, the objection was again sustained, and the court instructed the jury
“you are to disregard the line of questioning.”
{6} 	When the State then rested, Defendant moved for a directed verdict on all
charges, which was denied except as to driving with a blood or breath alcohol content
of .08 or more. 	See NMSA 1978, § 66-8-102(C)(1) (2008) (defining per se DWI).
Defendant then rested. The jury ultimately returned its verdict acquitting Defendant
of failure to maintain a traffic lane and convicting on the charges of speeding and
driving under the influence. Defendant appealed to the district court, which affirmed,
and this appeal follows.
DISCUSSION
{7} 	Defendant argues that Officer Martinez’s assessment of his breath alcohol
content results was “unqualified opinion testimony” that constituted “incurable error.”
Defendant is correct that Officer Martinez’s opinion regarding the amount of alcohol
he must have consumed in order to produce breath scores of .06/.05 was inadmissible.
The State’s questions regarding whether those scores suggested that Defendant had
consumed “one beer” or “more than one beer” sought opinion testimony for which no
foundation was laid at trial. 	See Rule 11-703 NMRA (providing foundation

5
requirements for expert testimony in the form of an opinion). 	Without such a
foundation, the witness was not qualified to offer her opinion on the matter. See State
v. Alberico, 1993-NMSC-047, ¶¶ 41-54, 116 N.M. 156, 861 P.2d 192.
{8} 	In response, the State asserts that the testimony at issue amounts to no more
than harmless error, specifically relying upon the metropolitan court’s admonishment
to the jury that it should “disregard this line of questioning.” 	Notably, the State
neither argues that the questions asked were proper nor suggests how any answers
Officer Martinez gave to those questions could possibly have been admissible.
Instead, the State claims that “[t]he trial judge’s immediate curative instruction
remedied the prosecution’s isolated improper question and Officer Martinez’s
answer.”
{9} 	It is true that, “[g]enerally, a prompt admonition from the court to the [j]ury to
disregard and not consider inadmissible evidence sufficiently cures any prejudicial
effect which might otherwise result.” State v. Newman, 1989-NMCA-086, ¶ 19, 109
N.M. 263, 784 P.2d 1006 (emphasis added). However, where “inadmissible testimony
[is] intentionally elicited by the prosecution,” the general rule does not apply and,
“regardless of whether a trial court admonishes the jury not to consider the testimony,
[appellate courts] must determine whether there is a reasonable probability that the
improperly admitted evidence could have induced the jury’s verdict.” 	State v.

6
Gonzales, 2000-NMSC-028, ¶ 39, 129 N.M. 556, 11 P.3d 131 overruled on other
grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110; accord State
v. Ruiz, 2003-NMCA-069, ¶ 6, 133 N.M. 717, 68 P.3d 957; see also State v. Saavedra,
1985-NMSC-077, ¶ 13, 103 N.M. 282, 705 P.2d 1133 (holding that admonitory
instruction could cure intentionally elicited testimony only in the absence of a
reasonable probability that inadmissible evidence induced the verdict), abrogated on
other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783;
cf. State v. Bartlett, 1981-NMCA-019, ¶ 18, 96 N.M. 415, 631 P.2d 321 (finding
prosecutor’s facially improper question to be “prejudicial error and no attempt to
admonish the jury to forget the question could possibly erase the effects”).
{10} 	Thus, before determining that a curative instruction has cured what would
otherwise be error, we must consider whether the offending testimony was unsolicited
or was, instead, elicited by the State. In State v. Vialpando, the trial court’s offer to
give an admonitory instruction to the jury was deemed to have cured the improper
testimony of a witness who was asked when he had first met the defendant and who
responded, “when he was in the State Penitentiary.” 1979-NMCA-083, ¶ 21, 93 N.M.
289, 599 P.2d 1086. On appeal, this Court acknowledged that such testimony would
require a mistrial if “deliberately induced through questioning by the prosecutor who
intended that the objectionable response be made by the witness.” Id. ¶ 23. In that

7
case, however, “the witness’s response was totally unexpected by the court and the
attorneys.” Id. 	As a result, the error was curable by way of instruction, and not so
prejudicial as to require a new trial. Id. ¶ 25. In so holding, this Court was “especially
mindful of the lack of any improper motive preceding the witness’s unprompted
utterance.” Id. ¶ 27.
{11} 	In contrast, similar testimony was considered sufficiently prejudicial to require
a new trial in Saavedra. 	In that case, a witness who was asked how long he had
known the defendant responded “[s]ince he got out of the penitentiary.” 1985-NMSC-
077, ¶ 8. 	On appeal, our Supreme Court noted that the prosecutor had asked an
identical question of the same witness at a grand jury hearing and received “an almost
identical answer.” Id. ¶ 9. Thus, the Court noted that—unlike in Vialpando—a “lack
of improper motive” could not be presumed in Saavedra, and the Court conducted a
review for harmless error, ultimately concluding that a new trial was required. 1985-
NMSC-077, ¶ 12. 	This requirement that appellate courts review for prejudice,
notwithstanding 	a 	curative 	instruction, 	rests 	upon 	the 	sound 	policy 	that 	the
prosecution should not be permitted to rely upon a trial court’s curative instruction to
remove the taint of incompetent evidence that it has intentionally placed before a jury.
As has often been noted in similar circumstances:
When the error is exposed on appeal, it is met by the stereotyped
argument that it is not apparent it in any wise influenced the minds of the

8
jury. The reply the law makes to such suggestion is: that, after injecting
it into the case to influence the jury, the prosecutor ought not to be heard
to say, after he has secured a conviction, it was harmless[.]
State v. Frank, 1979-NMSC-012, ¶ 26, 92 N.M. 456, 589 P.2d 1047 (internal
quotation marks and citation omitted).
{12} 	In this case, the State drew repeated objections to questions intended to elicit
Officer Martinez’s unqualified and inadmissible opinion regarding the significance
of Defendant’s breath scores of .06/.05. 	On appeal, the State makes no attempt to
justify the questions and, having reviewed the proceedings below, we can identify no
proper purpose for those questions. 	Thus, the question of whether Defendant was
prejudiced by Officer Martinez’s improper testimony cannot be answered simply by
relying upon the metropolitan court’s curative instruction; instead, we must actually
determine—in the particular context of this case—whether that inadmissible testimony
was prejudicial or harmless.
{13} 	For purposes of harmless error review, violations of the rules of evidence are
non-constitutional error. 	State v. Marquez, 2009-NMSC-055, ¶ 20, 147 N.M. 386,
223 P.3d 931. Thus, the error at issue in this case can be deemed harmless only if
“there is no reasonable probability the error affected the verdict.” 	Tollardo, 2012-
NMSC-008, ¶ 36 (emphasis, internal quotation marks, and citation omitted). 	As
recently explained by our Supreme Court, “harmless error review necessarily requires

9
a case-by-case analysis . . . [of] whether the guilty verdict actually rendered in this
trial was surely unattributable to the error.” 	Id. ¶ 44 (internal quotation marks and
citation omitted). In determining whether the impermissible evidence contributed to
Defendant’s conviction, we must “evaluate all of the circumstances surrounding the
error.” 	Id. ¶ 43. 	Those circumstances include “the error itself . . . includ[ing] an
examination of the source of the error and the emphasis placed upon the error,” as
well as the properly admitted evidence, at least to the extent such evidence provides
“context for understanding how the error arose and what role it may have played in
the trial proceedings.” Id.
{14} 	Because there was no dispute that Defendant was driving a car, the only
contested fact for the jury to decide with regard to the conviction here appealed was
whether he was impaired by alcohol while doing so. As the jury was instructed at
trial, it was to determine whether “as a result of drinking liquor the defendant was 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.” See UJI 14-4501 NMRA. The State’s evidence relevant to such a finding
consisted of the breath alcohol content test results as well as the officers’ testimony
regarding speeding, bloodshot eyes, slurred speech, the odor of alcohol, and
Defendant’s performance on the field sobriety tests.

10
{15} 	On appeal, Defendant points out that much of the evidence typically introduced
in a DWI case was not present in this case. 	For instance, when Officer Hammon
pulled him over for speeding, Defendant promptly and properly stopped his car. He
was also cooperative and behaved appropriately throughout his encounters with both
Officer Hammon and Officer Martinez. He displayed no signs of impairment while
getting out of his car and walking with Officer Martinez to the area in which she
conducted the field sobriety tests. 	Defendant also points out that once Officer
Martinez began the field sobriety tests, he performed the horizontal gaze nystagmus
test as instructed and performed the other tests with only minor errors. And, finally,
he agreed to submit to a chemical test that established his breath alcohol content at
only a .06/.05.
{16} 	Taken as a whole, the evidence introduced at trial was the type of evidence that
is generally sufficient to support a conviction under the “impaired to the slightest
degree” standard. See, e.g., State v. Soto, 2007-NMCA-077, ¶¶ 32-34, 142 N.M. 32,
162 P.3d 187 (collecting cases). Our task in this appeal, however, is not to determine
whether the evidence was sufficient to support a conviction. 	See Tollardo, 2012-
NMSC-008, ¶ 40 (noting “[t]here are some circumstances where . . . the evidence of
a defendant’s guilt is sufficient even in the absence of the [district] court’s error, that
still require the reviewing court to reverse the conviction if the jury’s verdict appears

11
to have been tainted by error (internal quotation marks and citation omitted)). Instead,
we must determine whether there is a reasonable probability that Officer Martinez’s
unqualified opinion testimony “could have induced the jury’s verdict.” 	Gonzales,
2000-NMSC-028, ¶ 39. 	Keeping that task in mind, we note that the admissible
evidence in this case could have supported either a conviction or an acquittal, since
a reasonable jury could have returned either verdict. As a result, it is possible that the
actual verdict rendered in this case was a result of the jury’s consideration of Officer
Martinez’s improper testimony.
{17} 	Tollardo also directs us to consider “the importance of the erroneously admitted
evidence in the prosecution’s case as well as whether the error was cumulative or
instead introduced new facts.” 2012-NMSC-008, ¶ 43 (alterations, internal quotation
marks, and citation omitted). 	In this regard, we note that—apart from the State’s
attempts to elicit Officer Martinez’s opinion—no evidence was introduced at trial to
establish whether, how, or to what extent a .06 or .05 breath alcohol content is
indicative of impairment. 	Thus, Officer Martinez’s unqualified opinion that
Defendant would not have had breath alcohol contents of .06 and .05 if he had only
consumed one beer—if accepted by the jurors—may have provided them with their
only means of assessing the breath scores. 	Officer Martinez’s impermissible
testimony clearly suggested to the jury that Defendant must have consumed more than

12
the one beer he admitted to drinking prior to the traffic stop. Further, because jurors
may be unfamiliar with breath alcohol contents and this jury was given no guidance
on that topic, these jurors may have used Officer Martinez’s testimony suggesting that
Defendant consumed more than one beer as their primary means of determining
whether his breath scores indicated that he was impaired at the time he was pulled
over. If they did so, the inadmissible testimony may have played a decisive role in the
trial proceedings. 	See id. (instructing appellate courts to consider “what role [the
error] may have played in the trial proceedings”). And, under the circumstances of
this case, there is no sense in which Officer Martinez’s improper testimony could be
considered cumulative.
{18} 	Finally, Officer Martinez’s improper testimony in this case, like the improper
material in Tollardo, “was the last piece of information that the jury received before
formal instructions and closing arguments, magnifying the risk that the error would
factor into the jury’s assessment of [the d]efendant’s guilt.” Id. ¶ 52. Our review of
the trial proceedings in this case leaves us convinced that there is a reasonable
probability that the jury’s verdict was the product of inadmissible testimony. 	The
State’s final line of questions for Officer Martinez—both on direct examination and
on re-direct—sought her unqualified opinion regarding the meaning and significance
of Defendant’s breath alcohol content. 	Given the fact that no other evidence was

13
available to guide the jury in assessing that breath alcohol content, particularly when
considered with the ambiguity of the properly-admitted evidence, it is apparent that
the verdict in this case may have been induced by Officer Martinez’s improperly
elicited testimony. Having reviewed “all of the circumstances surrounding the error,”
id. ¶ 43, we conclude that the error at issue is prejudicial enough to require a new trial.
{19} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
M. MONICA ZAMORA, Judge
J. MILES HANISEE, Judge