State v. Pennington

appeal, in this we the issues dispositive of 851 P.2d arguments merits of these do not reach the Mexico, of New STATE them. opinion regarding express no Plaintiff-Appellee, Attorney Fees. 4. for attorney fees requests Worker PENNINGTON, Jr., Douglas appeal. This re this Defendant-Appellant. compensa no premature is because quest made. NMSA yet has been See tion award 13263. No. (in 1978, 52-1-54(F) de (Repl.Pamp.1991) § attorney fees for a termining reasonable Mexico. Appeals of New Court of claimant, only those judge consider shall for secur attorney responsible benefits 16, 1993. March ing); & Torres Dri-Wall Ortiz v. Ortiz April Denied Certiorari Co., (denying request for (Ct.App.1972) appeal in workers’ com successful

fees for of com no award

pensation case because made). thus yet been

pensation has attorney fees for Worker decline to award However, any appeal at this time.

this compensation is made Worker

award of remand, judge to award direct the appeal in attorney fees for this

Worker awarded, light fees other

addition compensation. See the final award of Cory., 105 N.M. Nelson Chem.

Nelson v. (Ct.App.1987).

CONCLUSION legislature intended hold that the employing fewer employers

out-of-state of New

than three workers only the admin- exempt

Mexico to be obtaining filing burden

istrative compensation insurance

proof of workers’ statutory re-

complying with New Mexico’s liability pay- but not from

quirements, the Act if under

ment of benefits Mexico’s work- subject to New

otherwise Consequently, we law. compensation

ers’ claim should not that Worker’s

conclude reverse and dismissed. We thus

have been Ad- Compensation

remand to the Workers’ proceedings consis- for further

ministration opinion.

tent with

IT IS SO ORDERED. J., DONNELLY,

MINZNER, C.J., and

concur. resulting acquitted in death and

child abuse charge. of the other him of Interest. I. Conflict first Defendant’s contention consider Attorney’s Third Judicial District that disqualified from should have been Office Gen., Udall, Shepherd, Atty. Max Tom four months after prosecuting him. About Fe, Gen., plaintiff- Atty. for Asst. Santa Kling, private investi- first trial Tim a appellee. for on the case gator who had worked Defender, Sammy Quintana, J. Public Defendant, attorney’s of- joined the district Defender, Rogoff, Appellate Asst. Bruce attorney proce- The district instituted fice. Fe, defendant-appellant. Santa for Kling prosecution screen from the dures to he on for defense of cases had worked attorneys. later Defendant One month OPINION disqualify dis- a motion to the entire filed HARTZ, Judge. in attorney’s participating from trict office child his appeals Defendant conviction mo- hearing him. At a prosecuting (1) resulting in death. He contends: abuse that he had recent- tion Defendant testified disqualified court should have the district Kling copies of various ly called to obtain attorney’s prosecut- district office from him Kling that then asked documents and inter- of a conflict of ing the case because trial, upcoming questions several est; (2) argument closing the prosecutor’s be, including strategy be- what his would (3) autopsy photograph improper; an was Kling him that he now was fore informed admitted; (4) the not been should have Kling attorney. working for the district support evidence was insufficient with acknowledged having a conversation conviction; (5) should the trial court that he received no Defendant but testified request for granted his a continuance. have he imme- information that confidential affirm, agree Defen- although we he was diately informed Defendant prosecutor’s claim that some dant’s Finding working attorney. for the district closing consti- during argument comments “evenly matter evidence on the to be improper vouching for a witness. tuted balanced,” De- court held that district prove had not met burden to fendant BACKGROUND Kling informa- obtained confidential for going to work the district tion after count of Defendant indicted on one did not dis- attorney. district bodily resulting great in child abuse not confidential pute Kling had obtained of child abuse result- harm and one count case when information about Defendant’s alleged The victim the death. for Defendant. The district Candelaria, he worked the six- was Devon abuse Candelaria, court denied the motion De- Frances month-old son of office, however, screening charges because girlfriend. Both fendant’s by the attor- procedure established district injuries Devon suffered stemmed from ney. baby-sitting him. Oh Defendant was while a skull

August Devon suffered that the district court Defendant claims September Devon fracture. On first, in applying in two respects: erred injury; lapsed into a caused a head coma per se rule of that would on September he died attorney’s from prohibit district office handling hiring after trial in a mistrial Defendant’s first ended second, assigning Kling; him the burden jury could not reach a unanimous when proving Kling acquired charge. At his second of confidential verdict either later) (nine joined information he at- and one-half months after trial district charge torney’s staff. jury convicted Defendant Disqualification prosecution. A. Per Se Although Mata involved a Attorney’s “stale” claim—the issue was first District Office. raised post-conviction a motion for relief—the We first consider whether an entire dis opinion explicitly did not holding restrict its trict always staff should be dis post-conviction motions for relief. qualified prosecuting a defendant what, In evaluating any, when Cham- one member of the staff join before holding good law, bers remains we look to ing the office was involved in representing jurisdictions guidance. other Opinions charges the defendant on the being prose eight jurisdictions other disquali- have In arguing cuted. per se rule of fied an entire office without disqualification Defendant relies on State requiring a showing employee who Chambers, had assisted the joining defendant before (Ct.App.), denied, 372, cert. the staff participated had in the P.2d 988 In that case a district tion or conveyed person information to a attorney’s office disqualified when one participating prosecution. State v. staff attorney had a conflict of interest Latigue; People Stevens, v. 642 P.2d 39 because he had previously represented the (Colo.Ct.App.1981); Tippecanoe State v. Id., defendant. 86 N.M. at 524 P.2d at Court, County (Ind.1982); 432 N.E.2d 1377 focused appear Chambers on the Ross, (Mo.1992)(en State v. 829 S.W.2d 948 impropriety ance of created when former banc); State, Fitzsimmons v. 116 Neb. joined defense counsel the district attor (1928); People Shinkle, N.W. 83 v. ney’s reversing staff. Id. In the district 51 N.Y.2d 434 N.Y.S.2d court’s disqualify office, refusal (1980); N.E.2d 909 Cooper, State v. Chambers held that the facts of the case (1980); Ohio Misc. 409 N.E.2d 1070 compelled disqualification to ensure “the Stenger, v. 111 Wash.2d 760 P.2d 357 impartial fair and jus administration of (1988) (en banc). Superior Love v. Cf. tice.” Id. at 524 P.2d at 1004. The Court, Cal.App.3d 367, Cal.Rptr. Court wrote: (1980) (disqualifying attorneys the six What must a family defendant and his in the major crimes section of the district and friends think attorney when his office). attorney’s principal concerns goes leaves his case and to work expressed cases, Chambers, in these as in very office prosecuting him? appearance are the impropriety though Even there is no revelation potential for an breach of undiscoverable attorney to his colleagues, new the de- confidence when a defendant’s former con- fendant will never believe that. Justice joins fidante enemy camp. upon and the law must complete rest Even in jurisdictions, however, the above thinking public confidence of the and to it is not always clear that the courts would do they so must appear- avoid even the require disqualification of an entire district ance impropriety. wife, Like Caesar’s attorney’s ground office on the that one reproach. must be above employee had worked for the defendant on 384-85, Id. (quoting at 524 P.2d at 1000-01 a related matter. Most of in- the cases Latigue, State v. 108 Ariz. volved circumstances. In two of (1972) (en banc)). attorney causing the cases the disquali- later, however, year A this Court ruled part-time prosecutor fication was a whose showing some cases a at an eviden- private represent firm continued to the de- tiary hearing appearance can overcome the litigation. fendant in related civil State v. Mata, of unfairness. Ross; In Fitzsimmons State. four of (Ct.App.1975). 543 P.2d 1188 inAs Cham- attorney cases the who had worked for bers the defendant’s former attorney had the defendant had become the district at- joined the district office. But an torney or chief assistant. Latigue; State v. evidentiary hearing established that the de- Tippecanoe Court; State v. County Peo- fendant’s former totally Shinkle; had di- ple v. Stenger. State v. Tippeca- vorced himself noe, involvement 432 N.E.2d at 1379 and Stenger, 760 (Tenn.Crim.App. State, 564 S.W.2d 678 360-61, explicitly stated that P.2d at Edwards, just 1977); rel. Eidson v. disqualified State ex office need not be entire (en (Tex.Crim.App.1990) repre- deputy in the office 793 S.W.2d

because a Miner, banc); matter. 128 Vt. 258 A.2d in the same sented the accused Annotation, that the de- T.J. Although emphasized generally see Latigue Griffin, Prosecuting the fact that the Disqualification did not rest “on cision County Relationship here is the Attor- attorney involved Attorney on Account of (1970 a later deputy,” Accused, id. ney’s chief 31 A.L.R.3d 953 & suggested jurisdiction in that has decision Supp.1992). an entire office that whether join majority rejecting a case, depend specifics will entire per rule of se Court, 165 Ariz. Superior Turbin v. disqualified prosecutorial staff when the (Ct.App.1990). In the remain- of the staff is isolated from member by a two- ing two cases the decisions were prosecution of the defendant. Instead we Stevens, majority, People to-one the district to the sound discretion of leave court, Cooper. single-judge trial State v. whether the circumstances court great majority jurisdictions have disqualification of the specific require case disqualifying apply per se rule refused to staff. entire solely prosecutor’s staff on the entire rejecting a There are several reasons for had one of the staff basis that member First, attorney has per rule. if a district se of the representation in the involved been a issued directives to isolate member in matter. In their defendant a related particular prosecution of a staff from ordinarily need not be view the entire staff ease, presume that secret one should not prosecuting the defen- disqualified from occur. A violations of the directives will previous- if dant the staff member who A duty justice. is to do prosecutor’s sole is isolated ly worked for the defendant incen- attorney has no financial prosecuting prosecution in any participation information. prohibited Of tive obtain Caggi- v. the defendant. United States course, attorneys make mis- prosecuting (6th Cir.1981); ano, 660 F.2d 184 United takes, mistakes that violate ethical even (7th Cir.1990); Goot, v. 894 F.2d 231

States of miscon- of conduct. But the sort rules (Ala.Crim. State, v. 502 So.2d 858 Jackson per presume justify a se duct one must State, 424, Ark. App.1986); Upton v. 257 prosecutors would a rule is that violate (1974); Lopez, People 516 904 v. S.W.2d (that disqualified em- mandate clear 813, Cal.App.3d Cal.Rptr. 202 333 155 in ployee from all involvement be isolated statute); (1984) (applying new state State prosecution) and then lie about such 629, 795 Bunkley, 202 Conn. 522 A.2d v. presume no reason to We have violation. (1987); Fitzpatrick, 464 So.2d State v. egregious misconduct would oc- that such (Fla.1985); State, 257 Ga. 1185 Frazier v. attorney offices in this cur in the district (1987); 690, v. Damb- 362 S.E.2d 351 State possibility despicable of such state. The (1991); rell, 120 Idaho slight justify per a se behavior is too McKibben, Kan. 239 rule. (1986); Mudd, 679 S.W.2d 518 Summit v. denigrating the saying In this we are not Bell, (Ky.1984); 346 So.2d 225 State v. appearances. may There importance of State, (La.1977); 297 Md. Young v. 1090 circumstances which concern well be (1983); 465 A.2d 1149 Pisa v. Com- appearance impropriety would monwealth, N.E.2d 386 378 Mass. justify disqualification of the entire district (1979); Legakes, 98 Nev. Collier attorney’s If the is of staff. Camacho, (1982); re- great political importance such (1991); 589, 406 Common- N.C. S.E.2d political future of a sult could affect the Harris, 501 Pa. 460 A.2d 747 wealth v. attorney, might question one Cline, district (1983); 122 R.I. Smart, pressures prosecutorial (1979); whether A.2d 1192 State v. S.C. staff are less influential than those on Mattress v. S.E.2d private might counsel. Other factors that attorney’s district office. See State v. suggest a disqualification Jones, need for are evi- 180 Conn. 429 A.2d 942-43 dence in hiring employee of bad faith (1980) (Per many se rule “would result in defendant, who had worked for the see withdrawals, unnecessary mobility limit (district Caggiano, United States v. court legal profession, and restrict the state finding good hiring made faith in defen- assignment of counsel where no attorney), dant’s former lack of candor confidentiality breach has in fact oc- matters, prosecutor’s office in related curred.”), part overruled in on other simply prior or evidence of overzealousness Powell, grounds, State v. 186 Conn. members of the staff. We 442 A.2d courts, rely can on the district in the exer- The ABA Committee on Professional discretion, cise of their sound Ethics relied the above two reasons in an entire office whenever there are sub- ruling lawyers government in a office stantial reasons to internal doubt necessarily disqualified from han- screening procedures protect will the de- dling lawyer matters in another fendant. participated private office had while per A second reject reason to se rule of practice. The committee wrote: disqualification is that such a rule could disciplinary When the rules of Canons seriously impede a district ef- and 5 mandate the acquire possible forts to employ- best government lawyer who has come from per ees. A se rule could foreclose the private practice, governmental de- hiring persons with substantial recent partment practicably or division cannot experience local in criminal defense work. incapable handling be rendered even rule, per hiring Under a se such an attor- specific Clearly, matter. D.R. 5- ney employing would entail the cost of 105(D) construed, govern- were so the special prosecutor to every handle case in ability ment’s to function un- would be which the new staff member worked reasonably impaired. Necessity dictates for a defendant. Even if the financial ex- government hampered action not be pense consideration, major were not a the by 5-105(D). such a construction of D.R. attorney may pleased district not be relationships lawyers among within having important prosecuted by peo- cases government agency a from different ple who do expe- not have the criminal-law among partners those and associates of a rience or knowledge of local culture government law firm. salaried em- (including thinking the modes of of the ployee does not have the financial inter- judiciary juries) possessed by local and departmental repre- est in the success of attorneys. attorney staff The district private prac- sentation that is inherent in might preferable find it less-quali- to hire a important tice. This difference in the person problems. fied than to incur such adversary posture government of the suggested One court has that this difficul- lawyer recognized by is Canon 7: ty by delaying employ- could be resolved duty public prosecutor to seek ment of the staff new member until com- justice, convict, merely not pletion prosecution of the defendant duty government lawyers of all to seek for whom the new staff member had just results rather than the result desired Dambrell, worked. 817 P.2d at 653. But by a channeling advocacy client. The practice pro- in that would mean that the just opposed toward a result as to vindi- spective employee would need to refrain particular cation of a claim from in lessens involvement criminal cases for temptation to period disciplinary an indefinite circumvent the while the district attor- through ney’s completes office rules the action of associates. 5-105(D) prospective employee’s Accordingly, former clients. construe D.R. inapplicable government The financial burden to be impose this could to other prospective employee might lawyers particular gov- deter that associated with a person seeking from position lawyer disquali- with the ernment is himself who 5-105, one 4-101, Even in those states where D.R.

fied reason of D.R. 9-101(B), disqualified, the ne- disciplinary office has been D.R. or similar tor’s Although disqualifica- cessity representatives rules. vicarious for still exists department is not Latigue, supra, government office, tion of a in as wise, lawyer individual necessary or closely special prosecutor to work with a any direct or from should be screened (and the for- integrity in that of whose matter, in the participation indirect accused) reliance mer counsel concerning colleagues discussion with his reposed. ultimately must have been or set of trans- the relevant transaction Thus, transferring re- we believe rules. prohibited by is those actions another, sponsibility one office to from Comm, Ethics, For- special prosecu- appointment ABA on Professional or the of a tor, Op. provides purported remedy mal 62 A.B.A.J. opinion was in ethics The conclusion is more cosmetic than substantial. to Model in ABA reaffirmed comment Cline, 405 A.2d at Conduct, Rule Rules of Professional per rule of dis- We conclude that the se New Mexico Su- 1.11(c) adopted — Chambers qualification expressed in can- 1986, 16-111(C) preme Court as SCRA contrary great weight withstand states (Repl.Pamp.1991). The comment cogent support- reasons authority and the lawyer serving public as a that when a expressly authority. overrule participating employee disqualified is from Chambers to the extent that it can be read prior participation in a matter because disqualification of an always requiring as practice, private other the matter while prose- attorney’s office from entire district agency lawyers government same solely ground cuting a defendant necessarily prohibited partici- are not employee of the office had worked that one 16-111, ABA pating in the matter. SCRA on the same matter. When defendant significant find it that neither cmt. We employee effectively is disqualified Opinion the comment Formal 342 nor any participation pros- screened from 1.11(c) published when Rule had been defendant, the district attor- ecution of Chambers was decided this Court. general, proceed ney’s may, office Moreover, as insofar prosecution. leave to the sound the entire staff district however, court, discretion of the district concern for the justified solely because of of whether under the the determination unfairness, appointment appearance of the case, con- specific of a substantial facts fully allay prosecutor cannot of a appearance of fairness re- cerns about the special prosecu- the that concern. Unless attorney’s quire the district office be that scratch, investigation from begins tor the prosecuting the defen- disqualified from integ- absolute special prosecutor even a of despite adoption by the that office dant possibility that mate- rity cannot avoid the any disquali- effective measures to screen attorney’s of- supplied by the district rial employees. fied agencies has been contaminat- police fice or em- disqualified the ed disclosures from Application of Proof and B. Burden in three cases ployee. We have found to This Case. raised an ethical has which the defendant turning the of this Before to facts despite the challenge prosecution to case, attempt clarify the allocation of participation from withdrawal substantial persuasion on the issues burden government office prosecution by First, the de governing disqualification. defendant’s former in which the that a Miranda, fendant has the burden establish N.M. worked. attorney’s Reid, member of the district staff is (Ct.App.1983); prose disqualified participation from in the N.C.App. 410 S.E.2d Leon, Carver, cution. See Ltd. follow- State v. Miner. We concur (1986) (disquali P.2d Island Su- ing observation the Rhode ' case); opposing fication of counsel in civil preme Court: adopted by the Co., posed by the State and Mining v. Homestake Ulibarri court: (Ct.App. 1991) has (party alleging proponent the affirmative is the The Defendant request this find that since persuasion). We note that to have Court burden of investigator employment of 'the by proving, meet this burden defendant can Office, Attorney’s District the inves- case, the staff as this that member tigator again acquired confidential infor- defendant on the previously worked Defendant; mation and as the does same matter. When the defendant proponent finding that carries the bur- burden, not meet this the district court evenly proof and the evidence is den disqualify anyone the district at- cannot in. find and the Court declines to balanced torney’s office. investigator acquired confiden- Once a defendant has carried bur- again information after he went to tial den, the state has the burden to establish Attorney’s at the Dsitrict Of- work [sic] working prose- that staff members fice. effectively cution have been screened from argues appellate in his brief Defendant disqualified staff member contact with the finding implies that the district that this concerning appro- the case. This burden is thought had the bur- court that Defendant unique priately on the state because it has proving prejudice from den of actual pertinent Impo- to the information. access Kling’s of interest. We do not so conflict sition of this on the state also fol- burden finding. What the district court read presumption employees lows from if tele- appears saying is that be respect a law office share confidences with phone conversation Defendant between being by the office. to matters handled independent Kling alleged to be an Goot, States v. 894 F.2d See United Kling, then ground Martinez, 234-35; proving Defendant had the burden cf. (Ct.App.1983) telephone conversation version (lawyer seeking to remain case has bur- agree correct. with that view. was knowledge den of confidential note, however, Kling disquali- to show was actual). imputed, not If merely participation matters is fied from burden, the district court found regardless does not meet this of what state respect telephone to the conversation. entire district office must be dis- all Kling’s prior work for Defendant was qualified. Also, him. that was needed When both the defendant and the district if court Defen- even the district believed burdens, respective attorney have met their conversation, dis- dant’s version rests in the sound discretion of the matter necessarily attorney’s office would not trict employ- disqualified court. Even if the prosecuting disqualified from Defendant be effectively ee is screened from Kling adequately screened from team, per- may tion circumstances short, handling prosecution. In those appearance an suade the district court that finding respect to the district court’s with impropriety requires disqualification of of dispositive on the the conversation was not depend the entire office. This decision will the district at- issue of factors, have variety on a some of which hand, torney’s On the other insofar office. to The local district been alluded above. testimony telephone con- as the than an position court is in a far better may Kling was have shown versation appellate weigh and court to evaluate unlikely comply untrustworthy and to with alloca- evidence on the matter. The formal proper fac- screening procedures, it was a persuasion serves no tion of a burden weigh in the for the district court to tor purpose in this exercise of discretion. authority discretionary exercise of its attorney’s office. disqualify the district present court’s In the case the district persuasion turn to the critical find only reference to the Now we burden of the district court. following Finding pro- No. 10 and conclusion preserve appeal, adopted pro- hearing. the State’s To an issue The district court posed Finding ordinarily ruling No. 9 and Conclusion No. defendant must invoke state: by on the issue the trial court. See State 218, 227, Gonzales, 110 N.M. Finding No. 9. (Ct.App.1990), 111 N.M. aff'd, following precautions The have been (1991); 1986, 12- SCRA Attorney for the taken the District 216(A). District to ensure that Inv. Third Judicial any Also, information Kling does not share we find no abuse of discretion may acquired capac- in his which he have any court’s determination that the district ity private investigator and as an as a appearance “dissipated.” of unfairness was investigator the Public Defender’s We therefore affirm the district court’s Office, Attorney and with the District his the district refusal staff: office.

a) during That issue was discussed process and that formed the interview During Misconduct II. Prosecutorial developing procedural safe- basis for Argument. Final guards. Defendant, According prosecutor b) Kling All of the files that Inv. during spoke improperly on two occasions prior worked on for the defense to his first, closing argument: by improperly employment coded. are color second, shifting proof; burden c) There are to be no conversations injecting credibility improperly her own and else, investigator anyone and between authority of her office into the case regarding any this case and case that vouching credibility for the of a State’s defense, Kling and Mr. worked on for witness. there have been no conversations be- investigator anyone tween the else Shifting the A. Burden Proof. on this case. closing prosecu In her remarks the d) attorneys The are instructed to ask failure to call tor referred to Defendant’s investigator go- to leave if any experts support theory medical his ing to discuss this case. injury. of the cause of Devon’s brain De e) investigator may not even re- argu objected fendant twice to this line of view of the State’s files on which he ment; objec the trial court sustained investigator worked as an for the de- prosecutor. and admonished the tions fense. statements —that Defendant could have Conclusion No. 5. subpoenaed experts medical his own appearance unfairness as raised [T]he jurors yourselves why should “ask he dissipated upon the under Chambers is didn’t”—did not shift the burden to Defen holding evidentiary hearing and Court an prove dant to his innocence. The state entering findings has done as the Court fail ments are comments on Defendant’s Findings 9 and 10. of Fact Nos. sup may ure to call witnesses who have findings We hold that the district court’s ported theory. per comments are Such and conclusions suffice to establish that Gonzales, missible. See State effectively Kling was screened Jackson, prosecution of Defendant. See Aaron, (quoting findings made So.2d 867-68 (Ct.App.1984). remand). Although by trial court on the hearing on Defendant’s mo Vouching B. for Witness. trial and tion was conducted well before argument, prosecutor In rebuttal the may subsequent have been breaches there said: screening procedures, of the Defendant know, if subsequent claim of You Frances Candelaria want- waived breaches lie, by requesting evidentiary why a further didn’t she make never ed to [Defen-

38J out prohibition against vouching to be this horrendous monster? dant] stems from “Yes, This person? horrible he used to that may concerns such comments lead a me, pull baby the he to from used do rest jury prosecutor’s to its decision the on this, he do that.” used to She didn’t. personal integrity authority or and not on him She out to didn’t make be that mon- Diaz, presented. the evidence 100 N.M. at mean, ster. I that would have made a P.2d prosecutor 668 at 329. When good she story. But didn’t. “I She said: case her this referred to ethical obli- strike my never saw him baby gations and then that asserted the witness presence. I saw some bruises lying, was not she created such a risk. once, questioned I bottom and him about any justification there prose Was for the it.” vouching? recognizes cutor’s Mexico New duty here, And I have a members of “invited-response” doctrine under jury, present you many to to as facts closing argument which defense counsel’s am, possible. as I obligated And I am may “open the door” to comments present you not to something I know prosecutor that otherwise would be revers lie, to be a I know to a lie. I be Cordova, ible error. See State v. duty have a to not allow someone (Ct.App.1983); perjure knowledge themselves I have Jaramillo, State v. N.M. of that. And I would not do that. (Ct.App.), denied, P.2d cert. presented This you, witness is before (1975). P.2d 248 The argues and she you mentions to about the bruis- prosecutor’s per statements were es on the bottom. And she you tells how responses invited missible because defense questioned she him about it ... But closing argument counsel’s attacked the in only that’s the incident she sees. That’s tegrity prosecutor and credibility only thing she during observes support of a In State’s witness. of this they’re living the time that together, that passages claim the State cites several about, she actually talks to him and he closing argument. quote each admits having done. statement that the relies on and then lie, If why up she wanted to not make provide the context in it was made: Why some more? not out make him (1) Why things? do twist You be a lying. monster? Because’s she not they’ve throughout know done that telling you She’s as she saw it. thing____ They course don’t Both defense counsel you to think want about facts. prosecutor have considerable latitude in closing Diaz, arguments. State v. prosecutor had asked Frances Candela- N.M. P.2d (Ct.App. ria whether Defendant attended Devon’s 1983); Pace, State v. Defense arguing funeral. counsel was latitude, This howev question attempt that this was an to mis- er, is not It encom boundless. does not jury prosecutor lead the because the knew practice pass vouching credi for the a court order Defendant under witness, bility by invoking of a either away stay from the funeral. authority prestige prosecutor’s (2) that, you know, be Don’t fooled by suggesting office or again it’s a twist evidence Diaz, knowledge. See 100 N.M. at here____ Don’t be fooled with that. 213-14, 329-30; 668 P.2d at SCRA reviewing Defense counsel was the medical 16-304(E) (in trial, (Repl.Pamp.1991) an at appears saying evidence. He to be torney may personal knowledge not “assert prosecutor mistakenly argued that Devon’s facts in or personal issue ... state a injury gone hematoma from the first opinion, supported by the evidence as away injury. the time of the second credibility witness.”); to the ... Unit Wallace, (3) don’t ed States v. 848 F.2d know Ms. Candela- ria____ (9th Cir.1988); know, ABA Standards for You sure would Criminal like to (2d 1980). Justice 4-7.8 poly- Standard ed. how well do know she would [on 382 reversal. requires error dress whether the the one with

graph who’s because test] is defense counsel’s up importance critical the one that came Of the lies? Who’s all vouching during to the object all the lies? you here and told failure Instead, for jury the retired after rebuttal. length at had discussed Defense counsel deliberations, mistrial moved for a counsel lie detector willingness to take Defendant’s The district court “just the record.” He accused Frances Candelaria tests. then comments rebuttal determined suggesting that lying about Defendant’s the invited-re- permissible under were Defen- abortion and about she have an rejected the motion for sponse doctrine and hard having spanked Devon once dant’s a mistrial. bruising. enough to create reject application have been to proper procedure would justify

invited-response doctrine at the time object to the statements Although de prosecutor’s statements. them. State v. Her prosecutor made See prosecutor of 312, accused the 6, 1, fense counsel 1 nandez, n. 846 P.2d n. 115 N.M. jury and accused attempting 491, to mislead the Victorian, (1993); 84 N.M. v. lying, he did not Frances Candelaria 436, (1973); 495, v. 505 P.2d suborning perjury prosecutor of accuse the 691, Peden, N.M. 512 P.2d prosecutor by Frances Candelaria. timely objection A allows (Ct.App.1973). first accusa responded to the could have prejudicial na trial court to assess presentation her by explaining how tion curative the statements and take ture of mislead and could have not intended to admonishing prosecutor. steps, such as accusation responded to the second Clark, v. See State supporting the wit pointing to the evidence (error, any, cured (Ct.App.) admonitions), credibility. prosecutor’s But ness’s sustaining objections beyond permis such a comments went well denied, rt. ce credibility response. An attack on sible (1986). though prosecutor Even vouching by the justify cannot of a witness her near the end of made the statements Otherwise, could prosecutors prosecutor. had ad argument, defense counsel rebuttal every provides who dis vouch for witness object. An admonition from equate time to puted testimony. im particular could have the district court committed curing type of error pact Thus, invited-response doctrine dressing prosecutor judicial here. A by the empha apply does not here. We should undercut her prosecutor would down size, however, apply when it does that even thereby blunting authority prestige, suggesting “as it should not be understood arising the im possible prejudice judicial approval encouragement [ or]— —of authority and of that proper invocation inevitably exacer response-in-kind that prestige. in the adver the tensions inherent bates issue is not sary process ... [T]he timely objection, we review Absent a im prosecutor’s license to make otherwise for fundamental prosecutorial comments prose proper arguments, but whether Clark, 108 N.M. error. context, response,’ taken in cutor’s ‘invited (1989); States see United Unit unfairly prejudiced the defendant.” error”); (review “plain Young Unit 1, 12, 105 Young, 470 U.S. ed States (5th Caucci, F.2d ed States To 84 L.Ed.2d S.Ct. B) (no objection to Cir. Unit bluntly, applica even when put the matter made; motion for mistrial comments when invited-response doctrine leads tion of summation), de cert. after conclusion , conviction, overreaction to affirmance 831, 102 S.Ct. 454 U.S. nied L.Ed.2d 108 disciplinary justify can still by prosecutor Peden, cf. (as improper comments sanctions can (motion for mistrial 512 P.2d at 693 counsel). defense argument improper final will based on appeal motion was because impropriety be reviewed Having recognized the retired). er- jury Fundamental next ad- made after prosecutor’s argument, we ror occurs when the defendant’s innocence III. Other Claims. guilt appears indisputable or is so doubtful Defendant contends that the dis allowing would that the conviction stand admitting unduly trict court erred an Gonzales, 112 N.M. shock the conscience. prejudicial autopsy photograph depicting 1193; P.2d at at see United States Devon’s skull fractures. 11- SCRA at at 1047 Young, v. U.S. S.Ct. 403, permits the evi exclusion relevant (plain the fun- error error “undermine[d] probative dence “if its value is substantial damental fairness of the trial and contrib- ly outweighed by danger prej of unfair miscarriage justice”). to a ute^] ruling udice.” We reverse a under SCRA Thus, must look to the context in only 11-403 for an abuse of discretion. See the statements were made. See 538, 544, Lopez, State v. 105 N.M. 734 P.2d Ramming, 106 N.M. 738 P.2d Ho’o, (Ct.App.1986); 914; Young. Frances United States (Ct. credibility was neither Candelaria’s denied, App.) (autopsy photographs), cert. prosecution’s against crux of the case De- 655 P.2d 160 primary of either fendant nor the focus photograph of Devon’s skull corroborated closing counsel’s statement. The testimony the medical was relevant closing primarily tor’s statement consisted injuries issue whether Devon’s head pre- of a review of the medical evidence could have been caused a fall. We find during sented trial a discussion how no of discretion. abuse disputed expla- that evidence Defendant’s simply nation that fallen out of Devon Next, argues Defendant only bearing his bassinet. The Frances support evidence was insufficient to a ver testimony Candelaria’s had on the events disagree. dict. We Three witnesses testi September was to establish fied that had seen Devon that morn

that Devon was fine when she left him in baby appeared and that the to be fine. morning. Defendant’s care that Two other Thereafter Defendant had exclusive custo witnesses testified to Devon’s condition dy emergency When medical Devon. morning and Defendant did not dis- apart arrived at Defendant’s technicians pute testimony. Defense counsel’s ar- afternoon, early ment Devon was evidence, gument also focused on medical breathing. unconscious and was not De suggesting that it was consistent with De- von remained a coma until he died three challenged fendant’s version of events. He days pedia later. Three doctors—Devon’s veracity only Frances Candelaria’s two trician, per who the medical examiner First, Defen- matters. she testified that neurosurgeon autopsy, formed the and a get dant had an abortion. asked her to who treated Devon—testified that Devon’s (She pregnant was the time of Devon’s injuries trauma. were result of blunt death.) Yet, she that Defen- also testified pediatrician inju testified that the Devon’s Second, changed dant soon his mind. she ry inconsistent with a fall from a bas was admitted testified that Defendant had once pediatrician sinet. The and the neurosur spanking im- Devon too hard. Whatever that, probability, geon testified in all Devon pact jury, howev- testimony had on the lapsed shortly into a coma after he sus er, large part countered in her was Although tained trauma. testimony “really that Defendant was presented no direct evidence that Defen good” baby. with the the nature of Given inju the source Devon’s fatal dant was argument in this the evidence and the final ries, guilty may verdict on cir be based case, say improper we cannot cumstantial evidence. See State vouching by prosecutor likely (Ct. Aguayo, 114 N.M. significant impact jury’s had a have death); (child resulting App.1992) deliberations, abuse much less that it undermined Sheldon, 110 N.M. State v. the fundamental fairness of the trial. See (same), denied, Clark, 16-17, (Ct.App.) cert. 105 N.M. at P.2d at 955- and 498 U.S. (1990). society ances. The defendant and should 112 L.Ed.2d 418 S.Ct. impression trial was sufficient not be left with presented evidence beyond already power enormous of the state is person to conclude for a reasonable being unfairly against for use that Defendant caused bolstered a reasonable doubt Brown, public perception 100 individual. Such has the death. Devon’s See State fostering cynicism (1984). potential for and disre- 676 P.2d 253 system justice. spect for our of Finally, Defendant claims that the say policy This is not to that other con- granted district court should have a contin ignored should be in determin- siderations to see if he should uance while he waited disqualification ap- when vicarious investigator. Yet Defendant hire another stresses, propriate. majority As suggestion preju that he has made no govern- competent people need to attract to mo any way by diced in the denial of his govern- the need of employment ment In the tion for a continuance. absence agencies perform ment their functions ground prejudice, there is no for reversal. certainly impor- without undue burdens Perez, 95 N.M. See State v. however, my belief, that trial tant. It is preserving courts should err on the side of justice citizens’ in our criminal confidence IV. Conclusion. system deciding questions disqual- when affirm the For the above reasons we ification due to conflict of interest. See judgment the district court. (concern Turbin, ap- 797 P.2d at 734 IT IS SO ORDERED. impropriety outweighed trial pearance of disqualifica- court’s concern that vicarious BIVINS, J., concurs. impeded of at- tion would have movement county ‘para- torneys offices and between CHAVEZ, J., specially concurring. lyzed’ judicial system county). CHAVEZ, Judge (specially concurring). majority’s Although agree I with the agree pertaining I the rule with of law result, holding concur in the for the disqualification vicarious announced foregoing place greater I reasons would opinion. majority I also concur in the ma- emphasis appearance of unfairness jority’s application of that rule to the facts independent justifying factor vicari- as an disagree of Defendant’s case. I with the disqualification. ous however, majority’s emphasis, on factors arising government employ- in relation to countervailing ap-

ment force to the as

pearance impropriety when it comes to

questions prosecut-

ing agency’s office. HALL, Plaintiff-Appellant, Rex A. importance gave paramount This Court appearance impropriety when de- ciding years ago. I Chambers nineteen HALL, Elizabeth Jannan a/k/a principles underlying believe Powell, Elizabeth Jannan public policy no less im- consideration are Defendant-Appellee. today. just portant important It is as that a defendant receives a fair trial ensure No. 13365. public

and that the maintains its trust and Appeals Court of of New Mexico. impartial in the fair and admin- confidence justice. istration of In a criminal March lawyer tion where a defendant’s has ongoing de- substantial involvement office, joins

fense and then appear- care taken should be

Case Details

Case Name: State v. Pennington

Court Name: New Mexico Court of Appeals

Date Published: Mar 16, 1993

Citation: 851 P.2d 494

Docket Number: 13263

Court Abbreviation: N.M. Ct. App.