State v. Gutierrez-Robles

STATE OF NEW MEXICO, Plaintiff-Appellee, v. TARSILO GUTIERREZ-ROBLES, Defendant-Appellant.

No. A-1-CA-38319

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 12, 2021

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Fred T. Van Soelen, District Judge

Hector H. Balderas, Attorney General

Maris Veidemanis, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Santa Fe, NM

Victor E. Sanchez, Assistant Appellate Defender

Albuquerque, NM

for Appellant

MEMORANDUM OPINION

DUFFY, Judge.

{1} Defendant Tarsilo Gutierrez-Robles appeals his conviction for aggravated driving under the influence of intoxicating liquor or drugs (DWI), contrary to NMSA 1978, Section 66-8-102(D)(3) (2016). Defendant argues that (1) the district court erred in denying his motion for a continuance; (2) he received ineffective assistance of counsel; (3) the district court committed plain error when it allowed an officer to testify about his reading of the New Mexico Implied Consent Act to Defendant in Spanish; (4) there was insufficient evidence to support Defendant's willful refusal to submit to a breath test; (5) the district court erred in admitting his blood alcohol test results; and (6) there was cumulative error. We affirm.

BACKGROUND

{2} Sergeant Jimmy Docherty was on patrol when he saw a vehicle he suspected had a suspended or expired registration. While following the vehicle, he saw it make a wide left turn, go up onto the grass, then come back on the paved roadway. Sergeant Docherty then initiated a traffic stop. He testified that upon approaching Defendant, he smelled an odor of alcohol. While speaking with Defendant, Sergeant Docherty observed that Defendant was slurring his words, seemed clumsy, and had red eyes, and there was an open can of beer next to him. He also testified that Defendant spoke a mix of English and Spanish.

{3} Sergeant Docherty began to conduct standardized field sobriety tests but realized there was either an impairment problem or a language barrier because Defendant could not or would not follow instructions; he called another officer, Justin Cobb, to assist. Officer Cobb testified that after arriving at the scene, he attempted to conduct field sobriety tests on Defendant. He was unable to conduct a full investigation, however, because Defendant only spoke Spanish with a minor amount of English. Nevertheless, Officer Cobb smelled an odor of alcohol on Defendant and noticed that Defendant was not able to stand properly—he was swaying back and forth. Because neither Sergeant Docherty nor Officer Cobb could communicate with Defendant, they called Deputy Bryan Vannatta, who spoke Spanish.

{4} When Deputy Vannatta arrived, he also observed that Defendant had slurred speech and bloodshot watery eyes, and that there was a strong odor of alcohol coming from him. Deputy Vannatta testified that he spoke Spanish with Defendant and Defendant stated that he understood the officer's instructions. After learning Defendant had a physical problem with his arm and leg, Deputy Vannatta conducted alternate field sobriety tests on Defendant, none of which he was able to complete as instructed. Deputy Vannatta confirmed that he instructed Defendant in Spanish. Defendant was placed under arrest and taken to the state police office, where Deputy Vannatta read the Implied Consent Act in Spanish to Defendant from a card provided by his department. Deputy Vannatta requested that Defendant take a breath test, but Defendant did not consent. Officer Cobb subsequently obtained a search warrant for a blood test. Defendant was charged with aggravated DWI.

{5} At trial, the State and defense stipulated to the admission of Deputy Vannatta's lapel camera, which documented the officer's interaction with Defendant. During a recess at trial, a certified court interpreter previewed the video. Before the jury returned, the interpreter informed the court that "the Spanish spoken by the officer is not Spanish." Defendant then requested a continuance to obtain an expert to testify about Deputy Vannatta's Spanish proficiency. The district court denied Defendant's request but ruled that the video would be played without sound for the jury and that Defendant could cross-examine Deputy Vannatta on his Spanish-speaking abilities. The jury wasinstructed to determine whether Defendant was unable "either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle" and whether he "refused to submit to chemical testing[.]" From that criteria, the jury found Defendant guilty of aggravated DWI (impaired to the slightest degree).¹ State v. Pickett, 2009-NMCA-077, ¶¶ 1, 6, 146 N.M. 655, 213 P.3d 805 (distinguishing DWI based on the "impaired to the slightest degree" standard from "per se" DWI, based on a breath or blood alcohol concentration (BAC) of .08 or more). Defendant appeals.

DISCUSSION

I. Denial of Continuance

{6} Defendant argues that the district court abused its discretion when it denied his motion for a continuance. "The grant or denial of a continuance is within the sound discretion of the trial court, and the burden of establishing abuse of discretion rests with the defendant." State v. Salazar, 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135. "An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason." Id. (internal quotation marks and citation omitted).

{7} Our Supreme Court articulated seven factors that courts should consider when evaluating a request for a continuance:

[1] the length of the requested delay, [2] the likelihood that a delay would accomplish the movant's objectives, [3] the existence of previous continuances in the same matter, [4] the degree of inconvenience to the parties and the court, [5] the legitimacy of the motives in requesting the delay, [6] the fault of the movant in causing a need for the delay, and [7] the prejudice to the movant in denying the motion.

State v. Torres, 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20. Applying the Torres factors to this case, we conclude the district court did not abuse its discretion in denying Defendant's motion.

{8} Regarding the first factor—the length of the requested delay—Defendant did not request a specific amount of time for the continuance. Because we have no indication of how much time would be needed, this factor has little or no application here. Compare id. ¶ 15 (holding that a requested delay of a week or less to properly serve a witness and compel the witness to testify weighed in favor of granting a continuance), with State v. Salazar, 2006-NMCA-066, ¶¶ 24, 26, 139 N.M. 603, 136 P.3d 1013 (holding that the denial of a continuance was appropriate where the delay was likely at least two months); see also Salazar, 2007-NMSC-004, ¶ 21 ("[The d]efendant did not request aspecific amount of time for delay, but presumably enough time to conduct further witness interviews, possibly have the [v]ictim evaluated to determine competency to testify, and time to investigate."). Regarding the second factor—the likelihood that a delay would accomplish the movant's objectives—a sufficient delay would arguably have allowed Defendant to obtain an expert.

{9} As for the third factor, Defendant's trial had been set four times in fifteen months. The district court had sua sponte ordered a continuance on three occasions to resolve older cases, and the State requested the fourth continuance. Because these continuances were not made at Defendant's request, we do not weigh this factor against him. Cf. Torres, 1999-NMSC-010, ¶ 15 (noting that, where the request for a continuance was the defendant's first, and thus no indication the continuance was sought as a dilatory tactic, there was support for granting the request).

{10} Nevertheless, because Defendant's request came midway through trial, the fourth factor—the degree of inconvenience to the parties and the court—weighs heavily against granting the request. See State v. Gonzales, 2017-NMCA-080, ¶ 36, 406 P.3d 534 (stating that "we presume resetting the trial date on the day trial is supposed to begin is inconvenient for the parties and for the court"); see also State v. Brazeal, 1990-NMCA-010, ¶ 16, 109 N.M. 752, 790 P.2d 1033 ("Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons." (internal quotation marks and citation omitted)). While Defendant relies on Torres for the proposition that it was the State's burden to demonstrate that granting the motion would create a significant inconvenience for the court or either party, we believe the language Defendant relies upon stems from material differences between this case and Torres that renders Torres distinguishable. See 1999-NMSC-010, ¶ 17. The defendant in Torres requested a continuance on the second day of trial for the purpose of serving and compelling the appearance of a witness who was "essential to the defense theory," after learning the sheriff's department had not served the witness, even though defense counsel had delivered a subpoena to the sheriff's department at least ten days before trial. Id. ¶¶ 11-12. The district court in Torres was thus required to balance "[the] defendant's constitutional right to compulsory process, with the court's interest in controlling...