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State v. Storey

Court of Appeals of New Mexico

September 28, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JULIAN STOREY, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Brett R. Loveless, District Judge.

          Hector H. Balderas, Attorney General Santa Fe, NM John Kloss, Assistant Attorney General Albuquerque, NM for Appellee.

          Bennett J. Baur, Chief Public Defender Santa Fe, NM Steven J. Forsberg, Assistant Appellate Defender Albuquerque, NM for Appellant.

          OPINION

          HENRY M. BOHNHOFF, JUDGE.

         {1} Julian Storey (Defendant) was arrested in Albuquerque, New Mexico on suspicion of driving under the influence of marijuana. Following a jury trial in Bernalillo County metropolitan court, he was convicted of aggravated driving under the influence of a drug (DUI), possession of drug paraphernalia, and failing to maintain lane. The district court affirmed these convictions. On appeal to this Court, Defendant raises five challenges to the aggravated DUI conviction: (1) the trial court erred when it denied Defendant's motion to strike three potential jurors for cause, thus denying Defendant a fair trial; (2) there was insufficient evidence to support the jury's finding that Defendant was guilty of aggravated DUI; (3) the trial court erred by denying Defendant's motion for a mistrial due to the prosecutor's comments regarding the legal standard for DUI; (4) NMSA 1978, Section 66-8-102(D)(3) (2016) is unconstitutional because it criminally punishes defendants for refusing to submit to a warrantless blood draw; and (5) on the same constitutional grounds, fundamental error occurred when the prosecutor commented during closing argument on Defendant's refusal to submit to the blood draw. Pursuant to the United States Supreme Court's holding in Birchfield v. North Dakota, __U.S.__, 136 S.Ct. 2160 (2016), and following this Court's ruling in State v. Vargas, 2017-NMCA-023, ¶ 15, 389 P.3d 1080, cert, granted, 2017-NMCERT-, (No. A-l-CA-33718, Feb. 14, 2017), we conclude that Section 66-8-102(D)(3) is unconstitutional under the facts of this case. Pursuant to the Fourth and Fourteenth Amendments to the United States Constitution, a state cannot criminally punish an individual for refusing to submit to a warrantless blood draw. However, we also conclude that the constitutional proscription announced in Birchfield does not extend to the introduction of evidence of, or a prosecutor's comment on, such refusal to consent. Thus, the trial court did not err by allowing the prosecutor to comment during closing argument on Defendant's refusal to submit to a blood draw. We are not persuaded by Defendant's remaining arguments. We thus affirm in part and reverse in part, and remand for entry of judgment and sentence for violation of the underlying DUI offense.

         BACKGROUND

         I. New Mexico's Impaired Driving Laws

         {2} Section 66-8-102(A) generally prohibits driving under the influence of alcohol: "It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state." "[U]nder the influence, " as that phrase is used in Section 66-8-102(A), means that "as a result of drinking liquor, the driver [is] 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." (DWI). State v. Neal, 2008-NMCA-008, ¶ 21, 143 N.M. 341, 176 P.3d 330 (alteration, emphasis added) (internal quotation marks and citation omitted). Section 66-8-102(B) generally prohibits driving under the influence of a drug: "It is unlawful for a person who is under the influence of any drug to a degree that renders the person incapable of safely driving a vehicle to drive a vehicle within this state." (Emphasis added.)

         {3} The New Mexico Implied Consent Act (the Act), NMSA 1978, §§ 66-8-105 to -112(1978, as amended through 2015), aids in the enforcement of Section 66-8-102. The Act generally provides that any person who operates a motor vehicle within the state is deemed to have consented to a breath or blood test if he or she is arrested on suspicion of driving under the influence of intoxicating liquor or drugs. Section 66-8-107(A); State v. Watchman, 1991-NMCA-010, ¶ 31, 111 N.M. 727, 809 P.2d 641, overruled in part on other grounds byStatev. Hosteen, 1996-NMCA-084, ¶21, 122 N.M. 228, 923 P.2d 595. The subject may refuse to consent to the test, Section 66-8-111(A), but the Act provides sanctions for refusing: revocation of the subject's driver's license for one year, Section 66-8-111(B), and a mandatory jail sentence if he or she is convicted of the underlying DUI offense, Section 66-8-102(E). That is, Section 66-8-102(D)(3) establishes the offense of aggravated driving while under the influence of intoxicating liquor or drugs (aggravated DUI): "refus[al] to submit to chemical testing, as provided for in [the Act, while, ] in the judgment of the court, based upon evidence of intoxication presented to the court, the driver was under the influence of intoxicating liquor or drugs."[1] Id.

         II. Defendant's Arrest

         {4} Deputy Sarah Young of the Bernalillo County Sheriffs Department was on duty during the early morning hours of November 7, 2013. She was traveling westbound on Montano Boulevard in Albuquerque, New Mexico (Montano), in the same direction as a sport utility vehicle (SUV) that was ahead of her and was traveling in the far right lane. The deputy observed the SUV cross over the solid painted lane divider into the right shoulder lane three times. Deputy Young then observed the vehicle move the opposite direction into the far left lane and appear to graze the concrete lane divider. After the SUV turned southbound onto Coors Boulevard, Deputy Young initiated a traffic stop. When she made contact with Defendant, who was the driver of the SUV, the deputy smelled the odor of burnt marijuana coming from the vehicle. Deputy Young then asked Defendant whether there was anything in the vehicle she should be aware of, and Defendant produced a marijuana pipe from the center console. Based on the odor of burnt marijuana, the marijuana pipe, and how Defendant was driving, Deputy Young called dispatch to request a DUI officer. Deputy Johan Jareno responded to the call.

         {5} When Deputy Jareno arrived, he was briefed by Deputy Young and then made contact with Defendant. Deputy Jareno also smelled the odor of burnt marijuana coming from the vehicle, and Defendant admitted to Deputy Jareno that he had smoked marijuana "a couple hours" earlier. Deputy Jareno asked Defendant if he would perform standardized field sobriety tests (FSTs) and Defendant agreed. Defendant followed Deputy Jareno's instructions for the horizontal gaze nystagmus test, but missed the heel-to-toe twice, turned incorrectly, and used his arms for balance during the walk-and-turn test. Defendant also failed to follow Deputy Jareno's instructions during the one-leg stand test, hopping once and failing to look at his foot or keep his hands by his sides.

         {6} Deputy Jareno testified that standardized FSTs help a law enforcement officer assess a driver's ability to operate a motor vehicle safely, because "the tests are divided attention tests that require multitasking, as does driving." FSTs are designed to assess a person's intoxication regardless of the intoxicating substance. Deputy Jareno had training in Advanced Road Impairment Detection and Enforcement, where he learned how to identify drugs by look, smell, and consistency, and he also received specialized training as a Drug Recognition Examiner.

         {7} Following completion of the initial FSTs, Deputy Jareno then decided to give Defendant two alternate tests. For the first test, Deputy Jareno asked Defendant to estimate thirty seconds of time. When Defendant performed this exercise, forty-one seconds actually passed. For the second test, Deputy Jareno asked Defendant to recite the alphabet from J to Y, but Defendant was able to recite the alphabet only between J and P. Based on the results from the standardized FSTs and the two alternate tests, Deputy Jareno concluded that Defendant was not able to safely operate a vehicle and arrested him for DUI.

         {8} For Defendant's part, he testified that "he did not feel intoxicated and thought he was safe to drive." He testified that his truck was "beat up" and that he had "blown out" the suspension, causing the truck to sway between the lanes because the road was "very bumpy." Defendant also testified that he believed his driving was fine and that his vehicle did not strike the barrier. Defendant also denied that the marijuana pipe he turned over to Deputy Young belonged to him.

         {9} After Defendant's arrest, but while still on the scene, Deputy Jareno read Defendant a scripted advisory statement for implied consent that states:

You are under arrest for driving under the influence of intoxicating liquor and/or drug[s].The New Mexico Implied Consent Advisory [sic] requires you to submit to a breath test, a blood test, or both to determine the alcohol or drug content of your blood. After you take one or both of our tests, you will have the right to choose an additional independent test. ... Do you agree to take our test or tests-yes or no?

         Defendant stated that he understood the advisory and he agreed to be tested. Deputy Jareno transported Defendant to a police station where Defendant was administered a breath test. The test showed negative for alcohol. Deputy Jareno then asked Defendant to submit to a blood test and Defendant refused. Deputy Jareno then stated:

I cannot force you to take our test but if you refuse you will lose your New Mexico driver's license or non-resident operating privilege for up to one year. If you are also found guilty in court of driving while under the influence you may receive a greater sentence because you refused to submit to be tested.

         Defendant still refused to submit to a blood test.

         III. District Court Appeal

         {10} The metropolitan court (trial court) jury found Defendant guilty of possession of drug paraphernalia, failure to maintain traffic lane, and aggravated DUE. The trial court entered its sentencing order and judgment on July 14, 2014. Defendant appealed his conviction to the district court, asserting error based on the trial court's denial of his motion to strike the three potential jurors for cause, the claimed lack of sufficient evidence to prove failure to maintain traffic lane, the claimed lack of sufficient evidence to prove Defendant was guilty of DUI, and the trial court's denial of his mistrial motion based on the prosecutor's claimed misstatement of the law during closing argument. In a motion to dismiss, the State contended that Defendant had waived any claim of error with respect to the sufficiency of the evidence. In its memorandum opinion entered on July 29, 2015, the district court did not address the State's waiver argument and instead proceeded to address the merits of Defendant's arguments, but ultimately found no reversible error and affirmed the sentencing order. Defendant timely filed his notice of appeal to this Court. We note that the State has not appealed the district court's de facto denial of its motion to dismiss, and thus we do not address the waiver issue.

         ANALYSIS

         L The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Motion to Strike Jurors for Cause

         {11} Defendant's jury selection argument focuses on two members of the venire panel, Baker and Romero, who were not selected to serve on the jury, and one, Lucero, who was selected as a juror.

         {12} During voir dire, in response to a question from defense counsel ("How many of you think that if you have used drugs or alcohol, no matter in what amount, in just the slightest amount, that you are not okay to drive?"), Baker stated, "I don't allow drugs of any sort, even one drink is breaking the law." Baker spoke only the one time during voir dire. Defense counsel never followed up with Baker to ascertain whether, notwithstanding his incorrect understanding of the law, he still could follow the court's instructions and decide the case fairly and impartially.

         {13} Later during voir dire, defense counsel asked the following question: "Ms. Lucero? Okay. Let's see-how do you feel about... the questions regarding whether if you've used any amount of marijuana, whether or not you're safe to drive-do you think that's the case?" Lucero responded, "Yes it is because it's endangering himself and endangering other people." That response was the only time that Lucero spoke during voir dire. Defense counsel did not follow up with Lucero to ascertain whether she could follow the court's instructions and decide the case fairly and impartially.

         {14} Defense counsel then asked Romero the following question: "Ms. Romero, I guess the same question to you-what do you think-would somebody who had any amount of marijuana in their system, would they be unable to drive safely?" Romero responded, "Well yeah, they'd be unable to drive because it's illegal to drink and drive." Similar to Baker and Lucero, defense counsel did not follow up with Romero to ascertain whether she could follow the court's instructions and decide the case fairly and impartially. That was the only time she spoke during voir dire.

         {15} Outside the presence of the venire panel, defense counsel moved to strike Baker, Lucero, and Romero, as well as another panel member, Pilcher, for cause. As is discussed below, the trial court agreed to strike Pilcher, but otherwise denied the motion. During the course of selecting the six members of the jury, defense counsel used one of Defendant's two peremptory excusals to strike Baker, but accepted Lucero. During the course of selecting an alternate juror, defense counsel exercised Defendant's remaining peremptory challenge on Romero.

         {16} Defendant argues that the trial court erred in denying his motion to strike Baker, Lucero, and Romero for cause. Defendant asserts that all three stated that, because marijuana is illegal, a driver who uses any amount cannot drive safely. In response, the State argues that Defendant failed to demonstrate how these three panel members were unwilling or unable to decide the case based on the evidence and the trial court's instructions. The State also points out that, of the three panel members that Defendant moved to strike, only one, Lucero, actually served on the jury.

         {17} "Trial courts... are given broad discretion in overseeing the voir dire process. . . . The trial court, who is listening first hand to counsel's questions and the panel members' responses, is in the best position to determine whether voir dire has sufficiently exposed any biases that may preclude jurors from acting fairly and impartially." State v. Martinez, 2002-NMCA-036, ¶¶ 31, 35, 131 N.M. 746, 42 P.3d 851. "In general, we review the trial court's rulings regarding the selection of jurors for an abuse of discretion because the trial court is in the best position to assess a juror's state of mind, based upon the juror's demeanor and credibility." State v. Allen, 2000-NMSC-002, ¶ 83, 128 N.M. 482, 994 P.2d 728 (internal quotation marks and citation omitted). Further, and crucially, "[the d]efendant cannot prevail on appeal unless he demonstrates that the jurors finally selected were biased or prejudiced." State v. Gardner, 2003-NMCA-107, ¶ 16, 134 N.M. 294, 76 P.3d 47.

         {18} In State v. Rackley, 2000-NMCA-027, 128 N.M. 761, 998 P.2d 1212, the defendant was convicted of multiple crimes in connection with a robbery. On appeal, he challenged the trial court's refusal to excuse for cause three members of the venire panel based on the fact that, during voir dire, two of the panel members commented generally about the defendant's decision to not testify and the third commented about the defendant's status as a convicted felon. Id. ¶¶ 10, 12. This Court noted that these comments implicated rules regarding the presumption of innocence, the privilege not to testify, and the rules of evidence limiting character and propensity evidence. Id. ¶¶ 11-12. This Court then observed that

[the d]efendant is trying to convert a juror's admission of a layperson's natural response into prima facie evidence of impermissible bias. Evidentiary rules restricting the use of propensity evidence reflect a judgment that the probative value of such evidence is outweighed by unfair prejudice, confusion, and waste of time. Although these rules and the policies they represent may be known to and accepted by lawyers, they are not necessarily familiar to non-lawyers, who routinely rely on information about a person's past behavior in making social and business judgments. The fact that a juror is unaware at the outset of a criminal trial of the complicated scheme regulating the use of collateral offenses/character evidence is not at all surprising and should not, of itself, give rise to a presumption that a juror is incapable of following the trial court's instructions on the proper uses of evidence of collateral offenses. Indeed, the very purpose of instructions is to educate jurors about the applicable law.

Id. ΒΆ 12 (citations omitted). This Court concluded that, with respect to all three panel members, the defendant failed to demonstrate that any of the three panel members was "biased or otherwise incapable of deciding [the] case on the facts established at trial and the ...


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