STATE OF NEW MEXICO v. BRADLEY TORRES

Albuquerque, NM - Criminal defense lawyer represented defendant BRADLEY TORRES with arguing that the district court erred in concluding that any error in the arresting officer’s use of the word “nystagmus” during his testimony describing Defendant’s performance on the field sobriety tests (FSTs) was harmless. [MIO 2-3] Defendant contends that the word “nystagmus” must have sounded “impressively latinate and scientific[,]” and therefore, was particularly persuasive to the jury.

Defendant does not dispute the district court’s recitation of the facts and

5 testimony at trial. [MIO 1-2] However, Defendant argues that the district court erred

6 in concluding that any error in the arresting officer’s use of the word “nystagmus”

7 during his testimony describing Defendant’s performance on the field sobriety tests

8 (FSTs) was harmless. [MIO 2-3] Defendant contends that the word “nystagmus” must

9 have sounded “impressively latinate and scientific[,]” and therefore, was particularly

10 persuasive to the jury. [MIO 3] Defendant further argues that, because there was no

11 evidence of a breath or blood test in this case, the likely impact of the FST evidence

12 necessarily must be afforded greater weight, and therefore, any error in the officer’s

13 use of the word nystagmus requires reversal of his conviction. [MIO 3]

14 {3} We disagree and continue to adhere to our view that the district court correctly

15 determined that if any error was occasioned by the use of the term nystagmus, such

16 error was harmless. [RP 95-96] See State v. Vargas, 2016-NMCA-038, ¶ 24, 368 P.3d

17 1232 (“Non-constitutional errors are harmless unless there is a reasonable probability

18 that the error impacted the verdict.”). As the district court noted in its opinion, the use

19 of the term “nystagmus” was not emphasized by the State, had little importance as

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1 evidence, and introduced no new facts into evidence. [RP 95-96] See id. (stating that

2 in determining whether improperly admitted evidence affected the verdict the court

3 considers “circumstances [including] other evidence of the defendant’s guilt, the

4 importance of the erroneously admitted evidence to the prosecution’s case, and the

5 cumulative nature of the error”). Defendant does not argue otherwise in his

6 memorandum in opposition. Additionally, there was substantial other evidence of

7 Defendant’s guilt including erratic driving, failure to follow instructions, an odor of

8 alcohol, bloodshot and watery eyes, and difficulties with balance and coordination.

9 [RP 96] See id. Under these circumstances, we see no error in the district court’s

10 determination that any error in the admission of this evidence was harmless. See State

11 v. Brennan, 1998-NMCA-176, ¶ 13, 126 N.M. 389, 970 P.2d 161 (determining that

12 any error in the admission of HGN testimony was harmless where there was ample

13 other evidence to support the defendant’s conviction for DWI).

14 {4} Defendant next argues that the district court erred in determining that any error

15 in the introduction of Officer Montez’s testimony that Defendant was unsafe to

16 operate a motor vehicle due to impairment was harmless. [MIO 4-6] The district court

17 assumed without deciding that the admission of the evidence was error because

18 Officer Montez had not been qualified as an expert, but determined that the admission

19 of the evidence was nonetheless harmless. [RP 97-98] In making this determination

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1 the district court considered that the challenged testimony consisted of a single

2 sentence, and the State did not refer to the testimony again during trial or in its closing

3 argument. The district court also considered that the jury saw a videotape of the stop

4 which showed Defendant’s erratic driving, his failure to follow commands and

5 instructions, and his poor balance and coordination. The jury was therefore able to

6 evaluate Defendant’s demeanor, words, and actions for itself in determining that

7 Defendant had been impaired. [RP 98] See generally State v. Pickett,

8 2009-NMCA-077, ¶ 21, 146 N.M. 655, 213 P.3d 805 (holding that, even if the officer

9 was improperly allowed to give expert witness testimony relative to whether the

10 defendant was impaired, any error was harmless where there were other admissible

11 evidence indicating that the defendant was impaired).

12 {5} Defendant continues to argue in his memorandum in opposition that, in the

13 absence of a chemical test, it cannot be reasonably concluded that Officer Montez’s

14 testimony was harmless. [MIO 6] However, we agree with the district court’s

15 assessment for the reasons stated in its memorandum opinion.

For these reasons, we affirm the district court’s order affirming the metropolitan

court’s writ of restitution.