STATE оf New Mexico, Petitioner, v. Lee Autry MOORE, Respondent.
No. 13025.
Supreme Court of New Mexico.
June 26, 1980.
612 P.2d 1314 | 94 N.M. 503
Generally, reference by the prosecutor to the defendant‘s silence will be reversible error. As stated in State v. Lara, 88 N.M. 233, 236, 539 P.2d 623, 626 (Ct.App. 1975), following the precedent established in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), “we will no longer weigh the prejudicial impact of improper questions concerning defendant‘s silence. If defendant‘s silence lacks significant probative value, any reference to defendant‘s silence has an intolerable prejudicial impact requiring reversal.” While we recognize and aсcept the foregoing principle, we also recognize that the defense cannot with impunity refer to their own lack of testimony. The defendant here concedes in his reply brief that the reference by the prosecutor to the defendant‘s failure to testify was invited by his own closing argument. That the prosecutor can refer to the defendant‘s failure to testify if the door is opened by the defense, is well supported by case law. See State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967); State v. Peris, 76 N.M. 291, 414 P.2d 512 (1966).
The only remaining question is whether the reference to the defendant‘s failure to call witnesses or the indication of the prosecutor‘s personal belief of the defendant‘s guilt, have the cumulative effect of prejudicing the jury. We hold that it did not.
While the reference to personal belief in closing argument is of questionable ethicаl propriety, it is not always reversible error. See State v. Seaton, supra; State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct.App. 1971), cert. denied, 82 N.M. 377, 482 P.2d 241 (1971). However, given the proper factual setting, it may be. See State v. Leyba, 89 N.M. 28, 546 P.2d 876 (Ct.App.1976), cert. denied, 89 N.M. 206, 549 P.2d 284 (1976).
The reference to the defendant‘s failure to call a witness was not so extreme, in this case, as tо constitute reversible error. The prosecutor, as well as the defense, has reasonable latitude in closing arguments, State v. Riggsbee, supra; State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969), and the trial court has wide discretiоn in dealing with and controlling closing argument. State v. Pace, supra. Here the statements, neither individually nor cumulatively, reached the level of prejudicial error, especially in view of the fact that defense counsel opened the area for discussion and the trial court gave adequate warnings and instructions. See State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967), cert. denied, 391 U.S. 927, 88 S.Ct. 1829, 20 L.Ed.2d 668 (1968).
We affirm.
IT IS SO ORDERED.
SOSA, C. J., and EASLEY and FEDERICI, JJ., concur.
Martha A. Daly, App. Defender, Michael Dickman, Asst. App. Defender, Santa Fe, for respondent.
OPINION
PAYNE, Justice.
The defendant, Lee Autry Moore, was convicted of aggravated burglary, two counts of criminal sexual penetration in the second degree, larceny of less than оne hundred dollars and false imprisonment. The Court of Appeals reversed on the basis of possible prejudice from the admission into evidence of improper testimony. We reverse only as to the disposition of the case and sustain the conviction of the trial court.
The following questions are raised on сertiorari: (1) is the testimony of a rape victim concerning her mental state following the rape admissible, and (2) was the admission of that testimony prejudicial or harmless error.
We will not disturb the Court of Appeals’ decision that the victim‘s testimony, as to the effects of the rape on her, was improperly admitted by the triаl court. The defendant‘s objection was properly based on
For an error by the trial court to be considered as harmless, there must be: (1) substantial evidence to support the conviction withоut reference to the improperly admitted evidence, (2) such a disproportionate volume of permissible evidence that, in comparison, the amount of improper evidence will appear so miniscule that it could not have contributed to the conviction, and (3) no substantial conflicting evidence to discredit the State‘s testimony. State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App. 1978), cert. denied, 91 N.M. 491, 576 P.2d 297 (1978); State v. Self, 88 N.M. 37, 536 P.2d 1093 (Ct.App.1975).
It is difficult to conceive of a more thorough, complete, and convincing array of testimony than was presented in this case. Here, the victim was confronted, bound, gagged and sexually abused by a man she identified as the defendant. She was in
The victim positively identified the defendant as the man who raped her at a police show-up outside her home on the day of the аlleged rape, even though she felt the police would try and trick her. She subsequently repeated this positive identification of the defendant two other timеs. Several parts of the victim‘s testimony were corroborated by the testimony of the responding and arresting police officers. To further corroborate her testimony, a calculator stolen from the victim‘s home was found on the defendant when he was arrested.
The foregoing evidence is sufficient to support the verdict without reference to the improperly admitted testimony. No substantial conflicting evidence was presented. The record demonstratеs an overwhelming volume of permissible incriminating evidence in comparison with the small amount of impermissible and potentially prejudicial evidence. Thе victim was on the witness stand for approximately three hours testifying and being cross-examined in great detail to the events leading up to the rape, the raрe itself and its aftermath. The improperly admitted evidence consisted of testimony which lasted less than two minutes. We recognize that a trial can be prеjudiced by testimony lasting but a fraction of a second, but here that was not the case. The disparity in time only demonstrates the overwhelming volume of the permissiblе testimony. The permissible evidence was so strong that it is inconceivable that the small amount of impermissible testimony would have affected the jury‘s verdict.
As stated by Judge Hernandez in his dissenting opinion in the Court of Appeals, quoting from Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953), “[a] defendant is entitled to a fair trial but not a perfect one.” Here the defendant did reсeive a fair trial. The evidence against him was convincing and overwhelming.
We reverse.
IT IS SO ORDERED.
EASLEY, FEDERICI and FELTER, JJ., concur.
SOSA, C. J., dissenting.
SOSA Chief Justice, dissenting.
I respectfully dissent.
The evidence which was admitted at trial, over objection, concerned the effects the rape has had on the victim‘s life. It was clearly not probative of the guilt or innocence of the defendant. Defendant‘s objection was based on
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues оr misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
The prejudice inherent in the evidence substantially outweighed any probative value, and the evidence should not have been admitted.
Though evidence of guilt was great in this case, I beliеve that prosecutors should nonetheless conform to legal standards in obtaining convictions. There is no need, especially in a case with overwhеlming evidence of guilt, to resort to tactics which unfairly prejudice a jury. Convictions should not be obtained at any cost, but should be obtained in accordance with the rules of evidence.
I would give the defendant a new trial, excluding irrelevant and prejudicial evidence.