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State v. Lopez6/19/1997
{1} Defendant was convicted of driving under the influence of intoxicating liquor or drugs (DWI), a fourth-degree felony, pursuant to NMSA 1978, Section 66-8-102 (Repl. Pamp. 1994) and NMSA 1978, Section 31-18-15 (Repl. Pamp. 1994) and failure to carry evidence of financial responsibility pursuant to NMSA 1978, Section 66-5-229(C) (Repl. Pamp. 1994). At trial, Defendant contended that he was not the driver of the vehicle. The court admitted, as a statement of identification under Rule 11-801(D)(1)(c) NMRA 1997, a police officer's testimony that Defendant's wife, Clara Lopez, reported on the night of the accident that Defendant had been driving the vehicle.
{2} On appeal, Defendant raises five issues challenging the conduct of his trial and imposition of sentence. We reach only one in reversing his DWI conviction: whether the trial court committed reversible error in admitting the alleged out-of-court statement of Clara Lopez about whether Defendant drove the truck away from their home immediately prior to the accident. We hold that the alleged statement was not an identification of a person upon perceiving the person as contemplated by the evidentiary rule. Although the testimony could have been admitted for impeachment purposes under Rule 11-613 NMRA 1997, its substantive admission as identification unfairly prejudiced Defendant. We reverse his felony conviction and affirm his misdemeanor conviction.
FACTS
{3} On September 20, 1994, a pickup truck registered to Defendant rolled over onto its side on McCormick School Road in Farmington, New Mexico. Defendant was seen at the accident scene by a responding police officer. Officer McDaniel testified that there were two other people at the accident scene. Defendant told the officer that he had not been driving the vehicle. The officer reported that Defendant's eyes were watery and bloodshot, his speech was slurred, and his breath smelled strongly of alcohol. Defendant submitted to a horizontal gaze nystagmus test. Based on the results, the officer believed Defendant's blood-alcohol level to be above .10%. A sample of his blood showed a blood-alcohol concentration of .23%. Defendant did not produce evidence of liability insurance at the scene. Defendant was charged with driving under the influence of intoxicating liquor or drugs, fourth or subsequent offense, and failure to carry evidence of financial responsibility.
{4} Clara Lopez testified at trial about the evening of the accident. She testified that Defendant and two or three of his friends had been drinking at her home, that Defendant indicated to her that he intended to leave the house, and that they argued as a result. She stated that she was very angry with him and urged him to go to bed. At some point in the evening the group left. Clara Lopez testified that one of the group wanted them to drive Defendant's truck to Denver because it had a new motor. She further testified that she thought that there had been two vehicles in the driveway. Clara Lopez also stated that she did not see who got into which vehicle or who was driving. She testified that she only heard tires spinning and saw the dust and gravel that the vehicles kicked up as they pulled out of the driveway. Clara Lopez testified that a short time later Officer Neph Izatt of the Farmington Police Department came to speak to her at her mother's house. Clara Lopez testified that she never told the officer that she had seen her husband drive away or that he had been the sole occupant of the truck. She explained that from where she was reported to have been standing, she would have been unable to see the driveway. After Clara Lopez testified, the State called Officer Izatt. Defendant objected that any testimo
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