1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,187
10 GUADALUPE RODRIGUEZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Denise Barela Shepherd, District Judge
14 Gary K. King, Attorney General 15 Santa Fe, NM 16 M. Victoria Wilson, Assistant Attorney General 17 Albuquerque, NM
18 for Appellee
19 Jacqueline L. Cooper, Acting Chief Public Defender 20 Santa Fe, NM 21 Josephine H. Ford, Assistant Appellate Defender 22 Albuquerque, NM
23 for Appellant
24 MEMORANDUM OPINION 1 CASTILLO, Chief Judge.
2 Defendant was charged with driving while under the influence of intoxicating
3 liquor (DWI), reckless driving, and failure to yield to emergency vehicles. She was
4 convicted of all the charges following a bench trial in metropolitan court (metro
5 court). Defendant now appeals, raising issues related to the metro court’s decision to
6 admit the Scientific Laboratory Division (SLD) 705 form and the sufficiency of the
7 evidence. We affirm.
8 BACKGROUND
9 The events which led to the charges against Defendant are undisputed. On
10 August 4, 2006, Bernalillo County Sheriff’s Deputy Greg Martinez was patrolling in
11 a marked vehicle when he observed Defendant driving in excess of the speed limit.
12 Defendant was traveling in the opposite direction of Deputy Martinez, so he waited
13 for her to pass, turned his vehicle around, and began pursuit.
14 While attempting to catch up to Defendant, Deputy Martinez observed her
15 travel through a stop sign without stopping or slowing down. When he finally caught
16 up, Deputy Martinez activated his emergency equipment and, using his loud speaker,
17 verbally directed Defendant to stop. Defendant did not stop, however, and Deputy
18 Martinez concluded that a high speed pursuit posed too great a risk to the public. He
19 deactivated his emergency equipment and backed away.
2 1 Deputy Martinez then observed Defendant travel at a high rate of speed through
2 a construction zone in the opposing lane of traffic. At one point, Defendant swerved
3 and grazed a jersey barrier with her tire. At this juncture, Deputy Martinez reactivated
4 his emergency equipment and again attempted to compel Defendant to stop, but was
5 again unsuccessful.
6 Defendant continued to speed while traveling in the opposing lane of traffic and
7 drove through an intersection at high speed. Several other deputies had been alerted
8 to the unfolding events and considered employing a spike belt. This became
9 unnecessary, however, as Defendant eventually crashed into a newly installed, twelve-
10 inch-tall curb and became airborne. This caused Deputy Martinez to crash into the
11 rear of Defendant’s vehicle. The wreck immobilized and significantly damaged
12 Defendant’s car and caused Deputy Martinez to suffer a shoulder injury.
13 Several deputies approached Defendant as she sat in her now inoperable car.
14 Initially, she appeared to be unconscious but soon woke up. There were two empty
15 beer cans on the passenger side of her car, and her vehicle smelled of alcohol. Deputy
16 Ted Asbury took charge of the DWI investigation. He first spoke to Deputy Martinez
17 and then made contact with Defendant.
18 Defendant informed Deputy Asbury that she had been driving home and had
19 no recollection of the accident or how it occurred. Deputy Asbury smelled the odor
3 1 of alcohol emanating from Defendant’s breath and observed that Defendant’s eyes
2 were blood shot and her speech was slurred. Deputy Asbury asked Defendant if she
3 had consumed any alcohol, and she admitted that she had been drinking but could not
4 recall how much. Defendant refused to perform the standard field sobriety tests and
5 was taken to the University of New Mexico Hospital where she agreed to undergo a
6 blood draw.
7 The results of that blood draw were recorded on a SLD 705 form, and that form
8 was admitted at Defendant’s trial over her objection. The form indicates that the
9 blood alcohol content (BAC) of the blood drawn from Defendant was .07 gms/100ml.
10 The analyst who tested Defendant’s blood and transcribed the test results onto the 705
11 form did not testify. Rather, the State called Dr. Rong-Jen Hwang. Dr. Hwang
12 testified that Defendant’s BAC was .07 gms/100ml, as was indicated on the 705 form,
13 and stated his opinion that Defendant’s blood sample was analyzed correctly.
14 The metro court pointed to the following evidence in support of the DWI
15 conviction on grounds of impairment to the slightest degree: the results of Defendant’s
16 blood test confirmed that she had consumed alcohol, Defendant admitted consuming
17 alcohol, and Defendant drove “like a crazy person, putting everybody’s life in
18 danger.” Defendant’s refusal to perform the field sobriety tests was not used against
19 her. The metro court concluded that there was no question Defendant drove recklessly
4 1 and failed to yield to emergency vehicles.
2 Defendant appealed the metro court’s decision to district court. The district
3 court affirmed the convictions. Defendant now appeals to us.
4 DISCUSSION
5 On appeal, Defendant makes three arguments. Citing the Confrontation Clause
6 and recent New Mexico case law, she claims that the metro court committed
7 fundamental error in admitting the 705 form because the analyst who actually tested
8 her blood did not testify at trial. Alternatively, she claims that the 705 form was
9 inadmissible because the State failed to lay an adequate foundation. Finally, she
10 claims that there was insufficient evidence that she drove under the influence of
11 alcohol. She asks us to reverse her convictions and either remand for a new trial or
12 dismiss the charges with prejudice. We begin with the Confrontation Clause issue and
13 address the remaining issues in the order listed.
14 Citing State v. Aragon, 2010-NMSC-008, 147 N.M. 474, 225 P.3d 1280 and
15 State v. Bullcoming, 2010-NMSC-007, ¶ 16, 147 N.M. 487, 226 P.3d 1, cert. granted,
16 Bullcoming v. New Mexico, 131 S. Ct. 62 (2010) (mem.), Defendant claims that she
17 was entitled to confront and cross-examine the analyst who actually tested her blood
18 and transcribed the test results onto the 705 form. Having been denied that
19 opportunity, she contends that the report was wrongly admitted. “Confrontation
5 1 Clause claims are issues of law that we review de novo.” State v. Martinez,
2 1996-NMCA-109, ¶ 14, 122 N.M. 476, 927 P.2d 31.
3 Defendant acknowledges that this issue was not raised at trial and concedes that
4 the doctrine of fundamental error applies. Under that doctrine, we first determine if
5 error occurred and then evaluate whether the error was fundamental. State v. Silva,
6 2008-NMSC-051, ¶ 11, 144 N.M. 815, 192 P.3d 1192. In this case, we need not
7 resolve whether admission of the 705 form was error; even if the form were admitted
8 in error, we are confident that the error was not fundamental.
9 “A fundamental error occurs where there has been a miscarriage of justice, the
10 conviction shocks the conscience, or substantial justice has been denied [or when the
11 district] court’s error was of such magnitude that it affected the trial outcome.” State
12 v. Dietrich, 2009-NMCA-031, ¶ 52, 145 N.M. 733, 204 P.3d 748 (internal quotation
13 marks and citation omitted). Thus, our Supreme Court has explained that “[t]he
14 doctrine of fundamental error is to be resorted to in criminal cases only for the
15 protection of those whose innocence appears indisputably, or open to such question
16 that it would shock the conscience to permit the conviction to stand.” State v.
17 Rodriguez, 81 N.M. 503, 505, 469 P.2d 148, 150 (1970). Defendant’s innocence is
18 far from indisputable.
19 Ignoring the 705 form and the BAC results, there is ample other evidence
6 1 Defendant violated NMSA 1978, Section 66-8-102(A) (2005) (amended 2010) by
2 driving under the influence of intoxicating liquors while impaired to the slightest
3 degree. The uncontroverted evidence at trial demonstrates that Defendant exceeded
4 the speed limit while traveling in an opposing lane of traffic, ignored stop signs and
5 sped through an intersection, grazed a jersey barrier, ignored Deputy Martinez’s
6 repeated commands to stop, crashed her car into a large curb causing her vehicle to
7 literally fly into the air, and caused a wreck which injured Deputy Martinez and
8 significantly damaged Defendant’s vehicle. After the wreck, officers observed open
9 beer cans in Defendant’s car and detected the odor of alcohol inside the vehicle.
10 While speaking to Deputy Asbury, Defendant admitted that she had consumed alcohol
11 before driving, and Deputy Asbury observed several signals confirming this
12 admission: Defendant’s breath smelled of alcohol, her eyes were bloodshot, and her
13 speech was slurred. This evidence, standing alone, was more than adequate to convict
14 Defendant of DWI under the impaired to the slightest degree standard. See State v.
15 Soto, 2007-NMCA-077, ¶¶ 32-34, 142 N.M. 32, 162 P.3d 187 (concluding that there
16 was sufficient evidence that the defendant committed DWI under the impaired to the
17 slightest degree standard—despite the fact that officers observed no irregular driving,
18 the defendant’s behavior was not irregular, and no field sobriety tests were
19 conducted—in light of the fact that the defendant’s eyes were bloodshot, his speech
7 1 was slurred, his breath smelled of alcohol, he admitted drinking, and the officers
2 observed several empty cans of beer where the defendant had been). “The record
3 before us does not suggest the indisputable innocence of [Defendant], or that [her]
4 conviction would shock the conscience.” Rodriguez, 81 N.M. at 505, 469 P.2d at 150.
5 Thus, even if the 705 form had been admitted in violation of Defendant’s
6 Confrontation Clause rights, that error was not fundamental. We proceed to the next
7 issue on appeal.
8 Defendant next argues that the district court erred in admitting the 705 form
9 because the State failed to lay an adequate foundation. “We review the district court’s
10 admission or exclusion of evidence for abuse of discretion. The district court abuses
11 its discretion when it admits evidence for which the necessary foundation has not been
12 laid.” State v. Tom, 2010-NMCA-062, ¶ 11, 148 N.M. 348, 236 P.3d 660 (citations
13 omitted).
14 Defendant’s assertion that the State failed to lay an adequate foundation for
15 admission of the 705 form is premised on two independent arguments. First, she
16 argues that the State failed to submit any evidence demonstrating that the blood draw
17 was carried out in compliance with the SLD regulations codified at 7.33.2.14 NMAC
18 (4/30/2010). The State responds that Defendant did not make this argument at trial
19 and, therefore, failed to preserve this contention. Our review of the record confirms
8 1 the State’s position. As such, Defendant’s first argument will not be addressed. See
2 Rule 12-216(A) NMRA (“To preserve a question for review it must appear that a
3 ruling or decision by the district court was fairly invoked[.]”); State v. Balenquah,
4 2009-NMCA-055, ¶ 18, 146 N.M. 267, 208 P.3d 912 (stating that “we do not consider
5 arguments not preserved below”).
6 Second, Defendant argues that the foundation was inadequate because there was
7 a gap in the chain of custody. Specifically, she claims that there was a five-day period
8 between the date her blood was drawn at the hospital and the date SLD received her
9 blood. She asserts that the State was required, but failed to present, any evidence
10 regarding what happened to the blood during that period. This claim was made below
11 and shall be considered.
12 The evidence at trial indicated the following. Officer Asbury witnessed
13 Defendant’s blood being drawn at the hospital on August 4, 2006. He also witnessed
14 the technician who drew Defendant’s blood mark and seal the vials in which
15 Defendant’s blood was placed. Deputy Asbury then took command of those vials and
16 logged them in at the blood locker at a substation. SLD received those vials on
17 August 9, 2006, and, when they were received, the seals were still intact. The metro
18 court determined that this evidence sufficiently established the chain of custody and
19 rejected Defendant’s claim that the alleged gap was significant. We see no error in
9 1 this ruling.
2 We have previously explained that
3 [i]n order to admit real or demonstrative evidence, the evidence must be 4 identified either visually or by establishing custody of the object from 5 the time of seizure to the time it is offered into evidence. The [s]tate is 6 not required to establish the chain of custody in sufficient detail to 7 exclude all possibility of tampering. Rather, there is no abuse of 8 discretion when the preponderance of the evidence demonstrates that the 9 questioned evidence is what it purports to be.
10 State v. Rubio, 2002-NMCA-007, ¶ 16, 131 N.M. 479, 39 P.3d 144 (internal quotation
11 marks and citation omitted). Here, the State did prove by a preponderance of the
12 evidence that the blood SLD tested was the blood drawn from Defendant. The blood
13 vials were sealed at the time the blood was drawn from Defendant, Deputy Asbury
14 took command of those vials and stored them in a secure location and, when the vials
15 were delivered to the SLD, the seals were intact.
16 Even if we reached the opposite conclusion and determined that the foundation
17 laid as to the 705 form was inadequate, we would nonetheless conclude that admission
18 of the 705 form was harmless error. “Evidence admitted in violation of our rules is
19 grounds for a new trial where the error was not harmless.” State v. Barr, 2009-
20 NMSC-024, ¶ 47, 146 N.M. 301, 210 P.3d 198. Defendant’s arguments implicate the
21 non-constitutional strand of the harmless error analysis. Id. ¶ 53 (stating that “where
22 a defendant has established a violation of statutory law or court rules,
10 1 non-constitutional [harmless] error review is appropriate”). “[N]on-constitutional
2 error is reversible only if the reviewing court is able to say, in the context of the
3 specific evidence presented at trial, that it is reasonably probable that the [fact
4 finder’s] verdict would have been different but for the error.” Id. ¶ 54. To determine
5 whether it is reasonably probable that the metro court’s determination would have
6 been different but for the error, we consider whether there is: “(1) substantial evidence
7 to support the conviction without reference to the improperly admitted evidence; (2)
8 such a disproportionate volume of permissible evidence that, in comparison, the
9 amount of improper evidence will appear minuscule; and (3) no substantial conflicting
10 evidence to discredit the State’s testimony.” Id. ¶ 56 (footnote omitted). “No one
11 factor is determinative; rather, they are considered in conjunction with one another.”
12 Id. ¶ 55. We apply these factors.
13 Here, as previously described, there is substantial evidence apart from the 705
14 form and the BAC results to support Defendant’s conviction for DWI. We decline to
15 review that evidence again. As to the second factor, the 705 form and the results of
16 Defendant’s blood test appear minuscule in comparison to that other evidence.
17 Finally, there was no conflicting evidence presented at Defendant’s trial to discredit
18 the State’s evidence. Defendant acknowledges as much but points out that, at her
19 arraignment, Defendant explained that the events of August 4, 2006 were attributable
11 1 to the fact that she was in a rush to get home to care for her ill mother. Defendant
2 claims that this evidence contradicts the metro judge’s determination that Defendant
3 was impaired. We see no reason why we should consider statements made at an
4 arraignment, see In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330
5 (1984) (stating that absent cited authority to support an argument, we assume no such
6 authority exists), and further observe that it defies reason and sense to suggest that
7 Defendant would drive in an outlandishly dangerous fashion, evade police, and
8 inadvertently launch her vehicle skyward simply because she wished to hasten her
9 return home.
10 Defendant claims that admission of the 705 form was not harmless error and
11 relies heavily on State v. Marquez, 2009-NMSC-055, 147 N.M. 386, 223 P.3d 931 for
12 this claim. We are unpersuaded and determine that Marquez is distinguishable.
13 As in the present matter, the defendant in Marquez was convicted of DWI under
14 the impaired to the slightest degree standard. Id. ¶¶ 1, 16. At the defendant’s trial, the
15 arresting officer testified that he conducted field sobriety tests and further testified that
16 the defendant’s performance on those tests indicated a ninety percent likelihood that
17 his BAC was at or above the legal limit. Id. ¶ 18. Our Supreme Court determined that
18 this testimony was improperly admitted and then went on to assess whether admission
19 of the testimony was harmless error. Id. ¶¶ 18-26.
12 1 The Court determined that factors two and three weighed against the conclusion
2 that the error had been harmless. Id. ¶¶ 23-25. As to the second factor, the Court
3 explained that the officer’s improper statement was not minuscule in comparison to
4 the other permissible evidence. Id. ¶ 23. This conclusion was premised on the fact
5 that the officer’s testimony essentially conveyed to the jury that it was scientifically
6 provable, based on the results of the field sobriety tests, that the defendant was legally
7 intoxicated. Id. Our Supreme Court determined that the nature of the officer’s
8 testimony had great potential to mislead. Id. As to the third factor, the Court
9 observed that the defendant had proffered testimony that squarely conflicted with the
10 State’s evidence. Id. ¶ 25.
11 The concerns that motivated our Supreme Court to conclude in Marquez that
12 the evidentiary error in that case was not harmless are not present here. Unlike the
13 officer’s testimony in Marquez, the 705 form could not have misled the fact finder to
14 believe that it was nearly certain Defendant’s BAC was at or above the legal limit.
15 Indeed, the 705 form indicated that Defendant’s BAC was below the per se limit.
16 Thus, the 705 form could not have impacted the fact finder’s judgment in the manner
17 the officer’s testimony in Marquez did. The 705 form and the BAC results are small
18 in comparison to the other evidence presented. In addition, Defendant failed to submit
19 evidence that conflicted or discredited the State’s evidence. For these reasons, the
13 1 present matter is sufficiently distinguishable from Marquez. We proceed to the last
2 issue on appeal.
3 Defendant contends that there was insufficient evidence presented that she
4 drove under the influence of alcohol. Specifically, Defendant contends that the metro
5 court “erred in ruling that there was a nexus between alcohol and impairment.”
6 When reviewing a verdict for sufficiency of the evidence, our role 7 is to determine whether a rational fact[]finder could determine beyond 8 a reasonable doubt the essential facts necessary to convict the accused. 9 When determining the sufficiency of the evidence, the court views the 10 evidence in a light most favorable to the verdict, considering that the 11 [s]tate has the burden of proof beyond a reasonable doubt. The court 12 should not re-weigh the evidence to determine if there was another 13 hypothesis that would support innocence or replace the fact[]finder’s 14 view of the evidence with the appellate court’s own view of the 15 evidence.
16 State v. Garcia, 2005-NMSC-017, ¶ 12, 138 N.M. 1, 116 P.3d 72 (citations omitted).
17 Defendant’s argument that there was insufficient evidence to prove a nexus
18 between Defendant’s driving and impairment ignores Dr. Hwang’s testimony. As
19 Defendant observes, Dr. Hwang testified that alcohol consumption can diminish a
20 person’s coordination and ability to operate a motor vehicle. It is clear that the metro
21 court, as fact finder, believed that Defendant’s consumption of alcohol had just this
22 effect. Thus, there was sufficient evidence to allow the court to conclude that
23 Defendant consumed alcohol, her consumption of alcohol caused her to be impaired,
24 and her impairment resulted in her dangerous and unpredictable driving. We see no
14 1 sufficiency issue. Defendant emphasizes Dr. Hwang’s testimony that alcohol affects
2 different people in markedly different ways. While Dr. Hwang did provide this
3 testimony, it does not change our conclusion that there was sufficient evidence to
4 support the district court’s determination that Defendant’s consumption of alcohol
5 caused her impaired driving.
6 CONCLUSION
7 For the foregoing reasons, Defendant’s convictions are affirmed.
8 IT IS SO ORDERED.
9 __________________________________ 10 CELIA FOY CASTILLO, Chief Judge
11 I CONCUR:
12 __________________________________ 13 CYNTHIA A. FRY, Judge
14 RODERICK T. KENNEDY, Judge (concurring in result only)
15 1 KENNEDY, Judge (concurring in result only)
2 I concur in affirming the conviction and that the most salient objections to the
3 admission of Form 705 were either not raised (confrontation) or resulted in harmless
4 error when placed against the remainder of evidence in the case. I write separately to
5 state that, in my view, the foundation for the admission of Form 705 was insufficient,
6 and the form should never have been admitted when based on testimony such as was
7 presented through Dr. Hwang. The four days of lag time in getting the blood to SLD
8 and its delivery by the unidentified “L.C.” impugns the authenticity and chain of
9 custody but, Form 705 as admitted contains much more information. It indicates that
10 the “blood alcohol content (BAC) of the blood drawn from Defendant was
11 .07gms/100ml.” [Majority Opinion page 4, lines 11-13] It is the only evidence of the
12 actual alcohol content of Defendant’s blood. The trial judge mentioned Dr. Hwang’s
13 testimony as to the test result as showing Defendant had alcohol in her system. It is
14 with Dr. Hwang’s testimony that the inadmissible contents of the form are made
15 manifest.
16 The State qualified and presented Dr. Hwang’s “expert” testimony after
17 eliciting a string of qualifications and certifications for himself and SLD. None have
18 a thing to do with the testimony about Form 705, which states that blood was taken
19 and transported, a test was performed, and a test result was obtained. Dr. Hwang was
16 1 specific that he had not had any contact whatsoever with the blood or the test in this
2 case. He stated that he could not vouch for the quality of the blood or the authenticity
3 of the blood kit. He testified that his analysts are all well trained and that he “did not
4 see any irregularities” in the procedures used from Form 705. The sole fact to which
5 he testified, in essence, is that he had a personal belief that the test was performed
6 correctly from the “business record” before him. With a nod to Carl Sagan, the
7 absence of evidence concerning “irregularities” is not evidence of their absence.
8 Expert testimony must be worth more than being an expert on reading and
9 communicating confirmatory appearances from a piece of paper without committing
10 to giving relevant evidence to the case at hand. As a result, we do not know that in
11 this case the analyst correctly employed accepted methods and obtained a valid result.
12 Recent confrontation clause jurisprudence in this area makes clear that the
13 reason analysts are required to personally testify to the work they perform is that, on
14 occasion, they make mistakes that are consequential to the fundamental rights of the
15 accused. I am convinced that a real examination of evidence is the disinfectant for the
16 persistent questions that arise when supposition and third-hand testimony are allowed
17 to establish the “science” used to establish a conclusive element of a defendant’s guilt.
18 Recent cases make apparent the need for judges to critically evaluate evidence
19 presented in the guise of scientific or technical evidence. The touchstones and
17 1 signposts in cases and other literature available to trial judges amply instruct on how
2 to employ a correct quantum of skepticism and critical thinking when presented with
3 questionable evidence couched in high-sounding scientific jargon and bureaucratic
4 regularity. There is a mountain of information available to attorneys as to how an
5 adequate foundation for this evidence can properly be laid, as well as how to attack
6 it.
7 However, even ignoring evidence of and from Form 705, I yield to the
8 incredibly bad driving and supportive, if equivocal, symptoms given us by
9 Defendant’s conduct and agree that a rational finder of fact could find the evidence
10 sufficient to convict. I therefore agree that Defendant’s conviction should be
11 affirmed.
13 __________________________________ 14 RODERICK T. KENNEDY, Judge