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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 32,126
5 DONALD McPHERSON,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 Stephen K. Quinn, District Judge
9 Gary K. King, Attorney General
10 Albuquerque, NM
11 for Appellee
12 Jacqueline L. Cooper, Chief Public Defender
13 B. Douglas Wood III, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 KENNEDY, Judge.
1 Donald McPherson (Defendant) appeals his conviction for aggravated DWI and
2 resisting an officer. We proposed to affirm in a calendar notice, and Defendant has
3 responded with a memorandum in opposition. We have carefully considered
4 Defendant’s arguments, but we find them unpersuasive. We affirm Defendant’s
5 convictions.
6 The district court ruled that, if Defendant testified, the State could ask
7 Defendant whether he had performed field sobriety tests on a prior occasion. In his
8 docketing statement, Defendant claimed that his right to a fair trial was violated. We
9 addressed that argument in our calendar notice. Defendant now argues that the district
10 court’s ruling was premature and that it was fundamental error for the district court
11 to make the ruling “in advance of direct examination[.]” [MIO 6]
12 The State argued that defense counsel had “opened the door” regarding whether
13 Defendant had taken or practiced field sobriety tests in the past. The district court
14 agreed and ruled that the State could ask whether Defendant had performed the tests
15 on a prior occasion during a police stop. Defendant did not argue that the ruling was
16 made in error, or that he chose not to testify because of the ruling. Instead, Defendant
17 now appears to argue that he should have been allowed to testify on direct
18 examination and, if he again “opened the door,” the State could rely on the district
19 court’s ruling to ask the question regarding field sobriety tests. Defendant cites no
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1 authority in support of this argument, and we know of no authority that would require
2 a trial court to delay its ruling until such time as the defendant again opens the door
3 to rebuttal by the State. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d
4 1329, 1330 (1984) (stating that the appellate court will not consider an issue if no
5 authority is cited in support of the issue, as absent cited authority to support an
6 argument, the appellate court will assume no such authority exists). We affirm on this
7 issue.
8 Defendant continues to claim that his right to a fair trial was violated by the
9 State’s comments during closing argument. To the extent Defendant’s arguments
10 were not preserved below, he asks that we review them for fundamental error.
11 At some point during closing, Defendant made a broad objection to the State’s
12 comments that they were outside the scope or new argument and asked for “that line
13 of argument” to be stricken. [DS 14] The State responded to the objection, and then
14 Defendant contended that the comments were improper. [Id.] The State told the
15 district court it would “move on,” the State was told to proceed, and the trial
16 continued. [DS 14-15] Defendant did not ask for a curative instruction and did not ask
17 that the district court strike specific comments made by the State. As discussed in our
18 calendar notice, Defendant’s objections did not specifically alert the district court to
19 his claims regarding post-arrest silence, vouching for the credibility of a witness, or
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1 Defendant’s decision to not present a defense. Therefore, the arguments were not
2 preserved for appeal. Moreover, based on defense counsel’s broad request to strike
3 “that line of argument” and defense counsel’s silence after the State indicated it would
4 move on from the line of argument, and the district court told the State to proceed, the
5 district court did not err in effectively denying the motion to strike.
6 In addition, there was no fundamental error in this case. To find fundamental
7 error, Defendant’s guilt must be so doubtful as to shock our conscience, or there must
8 have been an error in the process that goes to the integrity of the judicial process.
9 State v. Barber, 2004-NMSC-019, ¶ 16, 135 N.M. 621, 92 P.3d 633; see also State v.
10 DeGraff, 2006-NMSC-011, ¶ 21, 139 N.M. 211, 131 P.3d 61 (explaining that
11 fundamental error based on prosecutor’s comments on silence occurs if there is a
12 reasonable probability that the comments were a significant factor during deliberations
13 in relation to the other evidence presented). Here, there was evidence that Defendant
14 was weaving, he had bloodshot and watery eyes and smelled of alcohol, he admitted
15 to consuming four beers, he did not perform well on field sobriety tests, and he cursed
16 at the officer and walked away. [RP 143-44] The comments referred to by
17 Defendant include the State asking the jury to put themselves in the place of an
18 officer, commenting on the absence of “difficulties presented by the surface
19 conditions,” absence of injuries Defendant may have had, absence of reasons for
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1 Defendant’s behavior, and comments that the officer provided honest testimony.
2 Given the evidence presented to the jury, the finding that Defendant was guilty does
3 not shock this Court’s conscience, and there is nothing to support a claim that the
4 process affected the integrity of the judicial process. The State’s comments do not
5 amount to fundamental error.
6 Defendant again argues that the State’s conduct amounted to cumulative error.
7 As we thoroughly discussed in our calendar notice, there is no basis for Defendant’s
8 claim.
9 For the reasons discussed in this Opinion and in our calendar notice, we affirm
10 Defendant’s convictions.
11 IT IS SO ORDERED.
12 _______________________________
13 RODERICK T. KENNEDY, Judge
14 WE CONCUR:
15 _________________________________
16 CELIA FOY CASTILLO, Chief Judge
17 _________________________________
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1 J. MILES HANISEE, Judge
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