State v. Downey

2008 NMSC 061, 195 P.3d 1244, 145 N.M. 232
CourtNew Mexico Supreme Court
DecidedOctober 16, 2008
Docket30,263
StatusPublished
Cited by103 cases

This text of 2008 NMSC 061 (State v. Downey) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Downey, 2008 NMSC 061, 195 P.3d 1244, 145 N.M. 232 (N.M. 2008).

Opinion

OPINION

MAES, Justice.

{1} The question presented in this appeal is whether the trial court properly executed its gatekeeping function in determining that (1) the State’s witness, Ron Smock, was qualified to testify as an expert concerning the science of retrograde extrapolation; and (2) Smock’s expert testimony was reliable and admissible pursuant to the criteria established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993). We assume without deciding that the trial court properly qualified Smock as an expert witness. Nonetheless, we conclude that the trial court improperly admitted Smock’s expert testimony because it was predicated on factual assumptions unsupported by the record and, therefore, was unreliable and inadmissible under Daubert and Alberico. We further conclude that the improper admission of Smock’s testimony was prejudicial to Defendant and, therefore, we vacate Defendant’s conviction and remand the case to the trial court for a new trial.

I. FACTS AND PROCEDURAL HISTORY

{2} At approximately 7:00 p.m. on July 13, 2001, sixty-eight-year-old Harry Downey (Defendant) was driving in the southbound lane of Highway 286. Annabeth Austin (Victim) was a passenger in a vehicle traveling in the opposite direction driven by her husband, Dorman Austin. Austin and Victim were following behind Victim’s son, Cody Coffey, who was approximately one-quarter to one-half of a mile ahead. As Coffey passed Defendant, neither Coffey nor Austin noticed anything unusual about Defendant’s driving. Soon thereafter, Defendant’s vehicle suddenly swerved into the northbound lane. Although Austin tried to avoid a collision, the front passenger side of Austin’s vehicle struck the rear of Defendant’s vehicle, killing Victim. After the collision, Defendant left the scene to summon emergency medical assistance, but returned approximately five to ten minutes later.

{3} Alicia King, a state police officer, arrived at the scene of the collision sometime between 7:00 and 7:30 p.m. Approximately five or ten minutes after her arrival, she interviewed Defendant. During this conversation, Defendant spoke clearly, and Officer King did not detect the odor of alcohol on Defendant’s breath. Defendant did seem to be disoriented, but Officer King attributed this to the shock of the collision and Defendant’s age.

{4} Florian Chavez, a sergeant with the state police, arrived at the scene of the collision sometime after 7:00 p.m. Soon thereafter, he interviewed Defendant, who explained that “he had been driving southbound toward Melrose and another vehicle had struck him from behind.” Sergeant Chavez observed that Defendant’s “eyes were red, bloodshot, and watery, and that his speech was — it was kind of slurred.” He detected an “unusual smell” on Defendant’s breath, one that he did not recognize. After speaking to Defendant, Sergeant Chavez continued to investigate the scene of the collision. Due to conflicting evidence concerning the cause of the collision, Sergeant Chavez requested the aid of Jeff Vick, a sergeant with the state police, to assist with accident reconstruction.

{5} Sergeant Vick arrived at the scene at approximately 8:30 p.m. After inspecting the condition of the vehicles, Sergeant Vick concluded that the accident could not have been caused by an in-line, rear-end collision as indicated by Defendant. Accordingly, Sergeant Vick approached Defendant to seek clarification concerning the cause of the accident. Defendant repeated the information that he had reported to Sergeant Chavez; namely, that he had been traveling southbound on Highway 286 when he was suddenly struck from behind. During this conversation, Sergeant Vick noticed that Defendant’s speech “did not seem real clear,” but he attributed the lack of clarity to Defendant’s age. At that time, Sergeant Vick did not detect the odor of alcohol on Defendant’s breath or “reach any conclusions about [Defendant’s] condition, really, except [that] he was coherent and he was speaking” clearly.

{6} After speaking to Defendant, Sergeant Vick inspected the vehicles involved in the collision a second time. Sergeant Vick again concluded that Defendant's description of events was inconsistent with the physical evidence and, therefore, he decided to re-interview Defendant. During his second conversation with Defendant, which occurred approximately five to ten minutes after the first, Sergeant Vick detected the “odor of alcoholic beverage.” He asked Defendant whether he had been drinking, and Defendant adamantly responded “no, that he had not, he can’t drink, he has diabetes.” Thereafter, Sergeant Vick reported to Sergeant Chavez that Defendant smelled of alcohol, and that he suspected Defendant had been drinking.

{7} In response, Sergeant Chavez approached Defendant and asked whether he had been drinking. Defendant responded: “Just two cokes. I don’t drink. I can’t drink, but I have diabetes.” In speaking to Defendant, Sergeant Chavez again detected an unusual odor with which he was unfamiliar, so he requested the assistance of Sandy Loomis, a Curry County deputy sheriff who has experience in the investigation of alcohol-related offenses. Deputy Loomis arrived at the scene of the collision sometime between 9:30 and 10:00 p.m. Deputy Loomis explained to Defendant that he was there to determine whether he was intoxicated, and asked him to recite the alphabet. As Defendant recited the alphabet, Deputy Loomis noticed a “strong odor of alcoholic beverage” on his breath, that his speech was “thiek[-]tongued,” and that his eyes were bloodshot and watery. Deputy Loomis reported his observations to Sergeant Chavez.

{8} At approximately 10:00 p.m., three hours after the collision, Sergeant Chavez conducted a series of field sobriety tests. First, Sergeant Chavez administered the “one-leg stand,” wherein the subject is instructed to stand on one leg and count to thirty. Defendant failed this test. Second, Sergeant Chavez conducted the “walk-and-turn” test, wherein the subject is instructed to place one foot in front of the other, heel-to-toe, for nine steps, then to pivot and return in a similar fashion. Defendant failed this test. Sergeant Chavez took Defendant into custody and transported him to the Clovis police station.

{9} In the meantime, Officer King and Sergeant Vick continued to investigate the scene of the accident. On the side of the road, approximately eight feet away from the site of the collision, they discovered some tools and a 1.7 liter bottle of whiskey with approximately one-fourth of the liquor remaining. After documenting the location of these items, Officer King transported the bottle of whiskey to the Clovis police station. Defendant admitted to Officer King that the bottle of whiskey belonged to him, but informed her that it had been stored in the bed of his pickup truck the whole time.

{10} Sometime before midnight, Officer King transported Defendant to Plains Regional Hospital for the administration of a blood alcohol content (BAC) test. At approximately 1:00 a.m., six hours after the collision, a sample of Defendant’s blood was drawn.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 NMSC 061, 195 P.3d 1244, 145 N.M. 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-downey-nm-2008.