State v. Laney10/14/2003
Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993) (finding issue not preserved where defense failed to state specific objection raised on appeal). In fact, the record reflects that Defendant did not object on the basis of prosecutorial misconduct nor did he request the district court to take any further action because of any prejudice that was alleged to occur. Cf. State v. Ruiz, 2003-NMCA-069, 4, 133 N.M. 717, 68 P.3d 957 (considering prosecutorial misconduct in eliciting forbidden testimony in violation of trial court order where defense counsel immediately objected, moved for mistrial, and renewed motion for mistrial at close of trial); State v. Trujillo, 2002-NMSC-005, 50, 131 N.M. 709, 42 P.3d 814 (finding the defendant properly preserved issue of prosecutorial misconduct by a timely objection at trial and in a motion to dismiss); Davila v. Bodelson, 103 N.M. 243, 249, 704 P.2d 1119, 1125 (Ct. App. 1985) (finding the effect of a violation of the district court's order limiting witness testimony was not properly preserved where the defendant failed to request mistrial or cautionary instruction, despite pretrial motion in limine and objection to question designed to elicit testimony). The record further shows defense counsel agreed to the limitation imposed on his own expert. Hence, we find Defendant failed to preserve these issues. State v. Lucero, 1999-NMCA-102, 43, 127 N.M. 672, 986 P.2d 468 (declining to address issue where the defendant failed to cite to the record or describe how the issue was timely and specifically preserved).
To the extent Defendant's argument implies fundamental or plain error, we find no basis under either theory. First, there was no error. Defense counsel objected and moved to strike the testimony which the district court sustained. Defendant requested nothing further from the district court and thus obtained the relief requested. See In re Crystal L., 2002-NMCA-063, 19, 132 N.M. 349, 48 P.3d 87 (stating that closing statements by the State, while improper, did not constitute reversible error without evidence of substantial prejudice where defense counsel objected and the district court sustained the objection, but the defense did not request curative instruction or other remedy); State v. Woodward, 121 N.M. 1, 5, 908 P.2d, 231, 235 (1995) (holding that the defendant waived objection to hearsay statement by asking the district court to caution witness, and having failed to request other relief, relief sought was obtained).
Further, there was more than substantial evidence to convict on the basis of admissible evidence, including eyewitness and expert testimony, photographs showing the extent of damage to the car and to Defendant, as well as testimony regarding the extent of injuries to the front seat passenger. See Lucero, 116 N.M. at 453, 863 P.2d at 1074 ("In either [fundamental or plain error], we must be convinced that admission of the testimony constituted an injustice that creates grave doubts concerning the validity of the verdict.").
III. Jury Instruction
The jury instructions for vehicular homicide by reckless driving, great bodily injury by vehicle, and reckless driving require the jury to find the defendant "operated a motor vehicle." Defendant tendered the following jury instruction to the district court: "A person is `operating' a motor vehicle if the person is driving the motor vehicle." UJI 14-4511 NMRA 2003 ("`Operating' or driving a motor vehicle defined."). The State, in turn, requested an amendment, "A person is `operating' a motor vehicle if the person is: 1. Driving the motor vehicle; or 2. In actual physical control whether or not the vehicle is moving if the vehicle is on a highway." Both parties argued to the d
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