Guilty verdict in vehicular homicide thrown out
Officer wrongly testified defendant confessed
Convictions in an unusual vehicular homicide case that resulted in a nine-year prison sentence for a man accused of driving drunk have been reversed by the New Mexico Court of Appeals, which remanded the case to District Court for a new trial.
The appeals court said District Judge Gerald E. Baca should have declared a mistrial in the case of Ramon A. Hernandez, who was convicted in 2013 for the death of a baby born after the mother was injured in a crash that prosecutors say Hernandez caused on Interstate 25 near Rowe, east of Santa Fe.
Hernandez was convicted of vehicular homicide, causing great bodily harm and reckless driving for the June 2012 automobile accident. Police said the baby lived only about a minute following delivery after the pregnant woman from the other car was transported to Christus St. Vincent Regional Hospital. During the trial, and contrary to a pre-trial ruling by the judge, a New Mexico State Police officer testified that Hernandez had confessed to being behind the wheel when the wreck took place. Baca had declared the purported confession inadmissible hearsay evidence.
“We hold that the improper testimony regarding the purported confession was extremely prejudicial and warranted a mistrial,” Court of Appeals Judge Timothy L. Garcia wrote in an opinion from last month.
Even though Judge Baca issued a “curative instruction” to the jury about the officer’s testimony, the Court of Appeals determined the
instruction was vague and referenced an objection that never occurred. The appeals court said that the officer’s testimony “not only undermined Defendant’s overall credibility but provided erroneous corroboration for the State’s circumstantial evidence regarding who it claimed was driving at the time of the accident.”
“It’s pretty devastating to us, to be honest,” Aileen Smith of Colorado Springs, Colo., whose baby Dimitri was killed by the accident, said in a phone interview this week.
“Going through the trial process once was gut wrenching. To have to go through it again four years after the crash is tremendously upsetting.”
It’s unclear whether the case will actually be retried. Las Vegas District Attorney Richard Flores, whose office prosecuted the case, is out of the office this week and unavailable to take questions, a staff member told the Journal Thursday. Other prosecutors involved in the case are “not authorized” to speak to the media, she said.
Hernandez’s attorney said he expects to file a motion asking the court to dismiss the case on double jeopardy grounds.
High profile case
Gov. Susana Martinez had used the case of the Smith baby to highlight the need to toughen the state’s DWI laws. Hernandez had at least three prior DWI convictions.
Two versions of “Dimitri’s Law” that aimed to stiffen DWI laws, especially for repeat offenders, died in the House and Senate judiciary committees during the legislative session in 2013. The Smiths helped lobby for stiffer DWI punishments.
While Smith said she understands that people make mistakes, she said it was also disappointing Hernandez was never subjected to a field sobriety test.
That’s because State Police didn’t initially think he was the driver, based on statements made at the scene by Hernandez and a witness to the accident. Consequently, Hernandez, who was 43 at the time of the accident, was not asked to submit to standard field sobriety tests. The jury acquitted him on a DWI charge.
“It’s very disappointing that it came down the way it did, with the police officer’s testimony,” Smith said. “I understand that everyone there was so focused on me, getting me out of the vehicle, into an ambulance and to the hospital. But the police officers should have picked up the protocol.”
The loss of a child is bad enough, but Smith said she and her husband have suffered in other ways.
“Our personal lives haven’t reset back to where they were,” she said. “It’s been expensive for us. Zach and I were almost homeless.”
And while the couple has had two children since losing their first, “both of them have had trouble,” Aileen said. Doctors told them that due to the injuries she suffered in the accident she might have trouble giving birth. Their next child, was delivered by C-section six weeks early. Their next child was an Asymmetrical Intrauterine Growth Restriction baby that went full term but weighed just 3 pounds, 12 ounces at birth.
Hernandez’s attorney, Ben Andrew Mondragon, said he has mixed emotions about the prospect of having to retry the case.
“We’re excited about the Court of Appeals’ decision to overturn it,” he said in a phone interview Thursday. “However, our happiness is tempered by the death of the child.”
Mondragon added that perhaps the hardest things he had to do in his career was to cross examine Aileen Smith, “but I’m there to represent my client.”
Hernandez, who has been in jail since 2012, is currently being held at the Roswell Correctional Center.
He’s an immigrant from Honduras who has been in the United States since at least 2000 when he was charged with his first DWI. He received a New Mexico driver’s license in 2002, and Motor Vehicle Division and court records show he had been issued a social security number. But after his arrest he was placed on a federal Immigration and Customs Enforcement detainer hold and remains on an immigration hold today.
Mom was seven months pregnant
On June 10, 2012, Aileen and Zach Smith were driving from Colorado Springs to San Diego for a baby shower for their unborn son. Aileen was seven months pregnant.
Traveling south on I-25 in their Suzuki Grand Vitara, Zach, who was driving, pulled over into the left lane when he saw Pontiac merge onto the freeway near Rowe. But, according to eyewitness accounts, the Pontiac crossed all the way over into the left lane and struck the Suzuki, causing both drivers to lose control.
The Smiths’ Suzuki stayed upright and ended up in the median, with heavy damage to the front right side of the vehicle.
While Zach was mostly unhurt, Aileen suffered contusions to her abdomen and a broken sternum. At the Santa Fe hospital, doctors decided to perform an emergency C-section in an effort to save the unborn child. The baby lived a few moments before succumbing to what the coroner determined were massive head injuries and bleeding on the brain.
After the crash, the purple Pontiac ended up on its right side. A witness to the accident said he saw two men climb out of the driver’s side of the car. The first one out didn’t stick around. He walked away from the crash and couldn’t be located when police arrived.
Later identified as Domingo Gonzales, the man in the vehicle with Hernandez died before the trial. No statements from him were introduced as evidence.
Hernandez insisted that he wasn’t the driver. And the fact that another man exited the vehicle first from the driver’s side seemed to support his account, so State Police did not perform DWI tests at the scene — even though Hernandez admitted to drinking four to five beers prior to the accident, police smelled alcohol on him and there were 10 unopened cans of beer found in the vehicle, according to the statement of probable cause signed by State Police officer Mario Vasquez.
But that same report says that when interviewed the day after the accident, Hernandez “advised Agent Gomez and me that he was in sole possession of the vehicle at the time of the accident ... After a verbal admission of guilt of driving the vehicle I placed Ramon A. Hernandez under arrest.”
That account was later refuted by Agent Gomez (no first name is provided for this officer in the appeals court opinion), and Judge Baca granted a defense motion before the trial began to have that part of the record discounted as hearsay. Also, as Vasquez was about to testify, the judge instructed the prosecution to confer with Vasquez about steering clear of mentioning anything about an alleged confession when he was on the witness stand.
“(Officer Vasquez) likes to spit out a lot of information at a time, so be real careful with the questions and be real specific with him,” the judge told the prosecution, according to the Court of Appeals’ opinion.
But moments later, a prosecutor asked Vasquez an open ended question to which Vasquez answered that Hernandez confessed to being “behind the wheel.”
Judge Baca halted the proceedings immediately after Vasquez’s remark and had the jurors excused from the courtroom so the attorneys could discuss what had happened.
Mondragon, Hernandez’s attorney, said the utterance was “undoable” and cause for a mistrial.
But Baca orally ruled there was no “manifest necessity” for a mistrial, saying “it’s unfair to everyone to have to spend the time and effort to come and deal with emotional issues here and (for) the court (to) have to declare a mistrial and have to do it over again.”
So instead he issued the curative instruction to the jury when they were called back into the courtroom.
Judge Baca told the jury that he had sustained a defense objection when, actually, there hadn’t been an objection. Rather, Mondragon had made a motion for a mistrial outside the presence of the jury.
“Although the district court may have deliberately made the curative instruction vague to avoid further emphasis of Officer Vasquez’s improper reference to the purported confession, referencing an objection that never occurred and failing to address the fact that no confession ever occurred was also error,” the Court of Appeals’ opinion states.
The opinion says “some fault can be attributed to the prosecutor” for failing to follow the judge’s instruction to be careful in questioning Vasquez. It’s unclear from the appeals court’s written decision which attorney was questioning Vasquez on the stand.