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State v. Montgomery

Court of Appeals of New Mexico

June 6, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
ZACKARY A. MONTGOMERY, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Angie K. Schneider, District Judge.

          Hector H. Balderas, Attorney General Santa Fe, NM Tonya Noonan Herring, Assistant Attorney General Albuquerque, NM for Appellee.

          Law Offices of Nancy L. Simmons P.C. Nancy L. Simmons Albuquerque, NM for Appellant.


          TIMOTHY L. GARCIA, Judge.

         {1} Defendant Zackary Montgomery was tried and convicted of driving while under the influence of intoxicating liquors, child abuse negligently caused, and no seat belts. Defendant argues on appeal that a series of actions by the State during trial constituted prosecutorial misconduct, including the State's injection of facts not supported by the evidence during its closing argument. We agree that the misconduct by the prosecutor during trial and closing argument was sufficiently egregious as to constitute reversible error. We need not reach Defendant's other proffered examples of prosecutorial misconduct or other arguments regarding ineffective assistance of counsel. Defendant was deprived of a fair trial. Therefore we reverse and remand for a new trial.


         {2} On August 4, 2013, at approximately 5:17 p.m., New Mexico State Police Sergeant Marc Davis conducted a traffic stop on Defendant's vehicle after observing that Defendant and the front seat passenger, Defendant's brother, were not wearing seat belts. At trial, Sergeant Davis testified as the arresting officer. He stated that upon approaching the vehicle, he recognized Defendant. After advising Defendant of the reason for the stop, Sergeant Davis returned to his vehicle to issue the citations and discovered that Defendant had an outstanding warrant for his arrest out of Ruidoso, New Mexico. Sergeant Davis observed Defendant and Defendant's vehicle during the seven minutes he was in his unit writing the citations. Sergeant Davis then issued the citations-first to the passenger, then to Defendant-and advised Defendant of his outstanding warrant. Sergeant Davis further noticed that there were children in the back seat of the van that were not properly restrained for which he issued Defendant a verbal warning. Shortly thereafter, Defendant's grandparents drove up, and Sergeant Davis explained to Defendant's grandmother that Defendant would be placed under arrest. Sergeant Davis then had Defendant get out of the vehicle and placed him under arrest for his outstanding warrant. Defendant became agitated and refused Sergeant Davis's offer to arrest him out of the sight of the children, who were still inside the vehicle.

         {3} Sergeant Davis testified that he had concerns about Defendant's behavior so Sergeant Davis quickly patted down Defendant, cuffed him, and put him into the back of his police unit. Sergeant Davis then smelled alcohol coming from the back of his unit. He told Defendant he could smell alcohol, but Defendant made no comment in response. Sergeant Davis further testified that because Defendant was "volatile" in their prior dealings, he decided to call another officer to conduct field sobriety tests on Defendant at the police station. Officer Hoover administered three standardized field sobriety tests at the station, and Defendant performed poorly on these tests. Defendant consented to take a breath alcohol test, the results of which registered blood alcohol content (BAC) readings of .12 and .13. Defendant was charged with driving while under the influence of intoxicating liquor, fourth offense, pursuant to NMSA 1978, Section 66-8-102(A), (G) (2010, amended 2016), or in the alternative, having an alcohol concentration of eight one-hundredths (.08) or more in his breath or blood within three hours of operating a motor vehicle, pursuant to Section 66-8-102(C), (G). Defendant was also charged with negligent child abuse, no death or great bodily harm, pursuant to NMSA 1978, Section 30-6-1(D) (2009), and not wearing seat belts, pursuant to NMSA 1978, Section 66-7-372(A) (2001).

         {4} The following excerpts and arguments are relevant to this appeal. The State elicited testimony from Sergeant Davis regarding the "concept of peak." Sergeant Davis described "peak" as your "maximum level of absorption [of alcohol] at that given time." Defense counsel objected that Sergeant Davis was not qualified as an expert in alcohol absorption rates, and the State responded that it would only ask some "general questions." Sergeant Davis went on to testify as to the factors that would affect a person's BAC. Later, on re-direct, the State asked Sergeant Davis, "is it at all possible for someone to drink two shots of liquor and blow .12 forty minutes later?" Defendant again objected, and the district court sustained the objection.

         {5} Defendant testified that on the day he was arrested, he was on his way to a birthday party for his daughter but did not have any alcohol to drink prior to being pulled over. Defendant bought alcohol for the party about twenty minutes before the stop, and it was located inside the car. When Sergeant Davis returned to his squad car, Defendant drank two fifty milliliter shots of liquor from the alcohol he had just purchased because he was worried about missing his daughter's birthday and knew he had an outstanding warrant for his arrest. On cross-examination, the State asked Defendant, "you're trying to tell this jury that by taking two shots of alcohol you can manage to get to [a BAC of] .12 forty some minutes later?" Defendant responded, "I'm not educated in that matter, " and the prosecutor commented, "didn't figure that part out did you?" Defense counsel objected that the prosecutor's statement was argumentative, and the district court sustained as to the prosecutor's last comment. Defendant's brother also testified that Defendant grabbed shots and drank them while they were waiting for Sergeant Davis to return to their vehicle.

         {6} In its closing argument, the State urged the jury to consider whether Defendant's testimony was "believable, " whether he was "truthful or untruthful, " and whether his story was reasonable. When the prosecutor told the jury that Defendant's theory of the case was that he drank "two shots of alcohol and that led to a BAC of .12 or .13, " defense counsel objected and asked to approach. Defense counsel objected to any argument that would amount to unsworn testimony as to what amount of alcohol would lead to that level of BAC. The district court overruled Defendant's objection. The prosecutor continued, telling the jury, "Defendant claims [he] had two shots of alcohol and that led [him] to a .12/.13. Absolutely impossible, absolutely a lie, absolutely more than incredible, . . . couldn't happen under any set of circumstances, that's his story."

         {7} The prosecutor then pointed out that 0.12 is 150% higher than the legal limit and went on to ask the jury to analyze Defendant's behavior and demeanor during the traffic stop as a symptom of "poor judgment" or as a symptom of the fact that he had been "drinking all day." Defense counsel objected that there was no evidence Defendant had been drinking all day, the prosecutor's statements were "way outside the record, " and requested that the district court give an instruction to disregard. Again, the district court overruled the objection, stating that the prosecutor's comments were permissible argument. The prosecutor continued, stating, "two drinks do not equal .12, period. End of story. That suggests quite a bit of consumption of alcohol. End of story."

         {8} The jury found Defendant guilty of: (1) child abuse, (2) driving under the influence of intoxicating liquors and/or ...

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