OPINION
{1} In March 1998, Defendant Darcy Smith was convicted of first degree felony murder in violation of NMSA 1978, § 30-2-1(A)(2) (1980, prior to 1994 amendment) and false imprisonment in violation of NMSA 1978, § 30-4-3 (1963). She was sentenced to life imprisonment for the murder and to eighteen months for false imprisonment with the sentences to be served consecutively. We review this case on direct appeal under Rule 12-102(A)(1) NMRA 2001. On appeal, Defendant raises the following challenges to the convictions: (1) there was insufficient evidence to convict her of either felony murder or false imprisonment; (2) the trial court erred in admitting certain evidence, in restricting Defendant’s cross-examination of two witnesses, and in refusing two of her proposed jury instructions; and (3) the prosecutor improperly commented on Defendant’s right to silence and character. We affirm Defendant’s convictions.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} On the morning of November 24, 1992, the body of the seventeen-year-old murder victim was discovered in a remote area near Bernardo, New Mexico, in Socorro County. The state police were able to establish his identity from a gift certificate found on the body which had been given to him by his grandparents for his birthday on November 23. The crime remained unsolved until late 1993, when the New Mexico State Police arranged for a Crime Stoppers television program about the murder. Several weeks after the broadcast, Defendant’s friend, Jennifer Jones, contacted Michael Davies, who was in charge of the state police investigation. Ms. Jones provided information implieating Defendant, Eric Smith (Smith), and Mark Apodaea (Apodaea) in the murder of the victim. At the time of the murder, Smith and Apodaea had been good friends for some time, and Apodaea was married to Defendant’s sister. Defendant and Smith had married in June 1993 and shortly after their marriage, began a house sharing arrangement with the Jones couple which continued until Defendant and Smith were arrested in December 1993.
{3} Apodaea was arrested first and gave a voluntary statement about the killing. Defendant and Smith were subsequently arrested and charged in the victim’s death. In a separate trial, Smith was convicted of felony murder, false imprisonment, aggravated assault, conspiracy, tampering with evidence, and contributing to the delinquency of a minor. Apodaea pleaded guilty to second degree murder and related crimes in a plea agreement. As part of that agreement, Apodaca agreed to testify truthfully about Defendant’s participation in the victim’s death. Defendant, who was seventeen years old at the time of the murder, was charged initially in children’s court. See In re Darcy S.,
{4} At trial, Apodaea testified about the events on the night of the murder. Ms. Jones, and her estranged husband, Brian Jones, also testified about Defendant’s later admissions regarding that evening’s events. Apodaea stated that he, Smith, and Defendant had spent the evening drinking and then decided to go out and shoot rabbits. Each was armed with a weapon: Smith with a .44 caliber revolver, Defendant with a 9 millimeter handgun in a holster on her right hip, and Apodaea with a 12 gauge shotgun. Apodaea testified that they had gone shooting before and Defendant was proficient in the use of various weapons, including the type of handgun she had with her that night.
{5} At some point, the three of them decided to pick someone up at random to “scare the hell” out of that person. In an area near the University of New Mexico in Albuquerque, they spotted the victim. Smith forced him into the backseat of his two-door ear at gunpoint, and they all drove off. Apodaca said that, as they were driving, Smith became angry with the victim. He asked Apodaea to steady the steering wheel so that Smith could turn around in the driver’s seat to hit the victim in the face with the butt of his .44 revolver. While Apodaea steered the car during the beating, Defendant put her foot on the gas pedal to maintain the car’s speed. Smith left Interstate 25 at the Bernardo exit and drove a short distance from the exit. After he stopped the ear, Smith took the victim out of the car and had him stand at the back of the car where Defendant and Apodaea joined them. After further angry words, Smith began to beat the victim and then shot him twice with the .44 revolver. After the victim fell to the ground, Defendant then shot him twice with her 9 millimeter handgun. Apodaea testified that after she shot the victim, Defendant picked up one of the spent casings from her gun as a souvenir. Smith next retrieved the shotgun from the car, and he and Apodaea each shot the victim three more times. Afterward Defendant, Smith, and Apodaea got back in the car and left the victim there. Apodaea described Defendant as being excited about the shooting and “hyped” during the ride back to Albuquerque.
{6} At trial, Dr. Ross Zumwalt, chief medical investigator for the Office of the Medical Investigator, testified as an expert in forensic pathology about the autopsy of the victim. The autopsy revealed that the victim had been shot ten times and had bled to death from his wounds, although given the extent and severity of his injuries, it was unlikely that he could have survived. The victim also had numerous injuries to the face including bruises and lacerations caused by a blunt object. Dr. Zumwalt testified that the injuries were consistent with being struck by the butt of a revolver. Additional bruising found on the victim’s forearms and the back of his hand also was caused by a blunt object. These bruises were described as defensive injuries which can occur when a person raises his or her arms or hands as protection from blows. The supervisor of the firearms identification section at the Department of Public Safety’s Crime Lab testified as an expert witness. He described the testing process he used on the bullets and shotgun pellets retrieved from the victim’s body during the autopsy and those found at the scene. He testified that weapons involved in the murder had been a 12 gauge shotgun, a .44 caliber revolver, and a 9 millimeter weapon.
II. SUFFICIENCY OF THE EVIDENCE
{7} Defendant contends that the evidence presented at trial was insufficient to support either her conviction for false imprisonment or for felony murder. We review the sufficiency of the evidence under a substantial evidence standard. State v. Sutphin,
A. False Imprisonment
{8} Defendant was charged as both a principal and an accessory to the crime of false imprisonment. See Section 30-4-3; NMSA 1978, § 30-1-13 (1972). To convict Defendant of false imprisonment, the State had to prove the following beyond a reasonable doubt:
1. The defendant confined [the victim] against his will;
2. The defendant knew she had no authority to confine [the victim] [.]
See UJI 14-401 NMRA 2001. The jury was also given the following instruction on accessory liability:
The defendant may be found guilty of a crime even though she herself did not do the acts constituting the crime, if the state proves to your satisfaction beyond a reasonable doubt that:
1. The defendant intended that the crime be committed;
2. The crime was committed;
3. The defendant helped, encouraged or caused the crime to be committed}.]
This instruction does not apply to the charge of felony murder.
See UJI 14-2822 NMRA 2001.
{9} The State presented evidence about the events of that night through the testimony of the eyewitness, Apodaca, and that of Jennifer and Brian Jones, who testified about Defendant’s separate admissions to each of them about the victim’s death. The jury heard testimony that (1) Defendant was armed; (2) she decided, along with Smith and Apodaca, to snatch a stranger off the street; (3) the victim was forced into the back of a two-door ear from which he could not get out except through the driver door or the passenger side door; and (4) as they drove from Albuquerque to Bernardo, Defendant pressed her foot on the gas pedal to keep the car on course while the driver turned around to beat the victim with the butt of his weapon.
{10} We conclude that there was sufficient evidence to support the jury’s verdict. A rational jury could reasonably have determined that Defendant either confined the victim against his will without authority to do so, or helped or encouraged that to happen. See State v. Muise,
B. Felony Murder
{11} Defendant’s claim that her felony murder conviction is not supported by substantial evidence has two parts. As we understand Defendant’s argument, she contends that there was insufficient evidence to support her conviction because there was no underlying felony inherently dangerous to life due to the fact that false imprisonment is a fourth degree felony. She argues that there was insufficient evidence of false imprisonment for it to have served as the underlying felony. Because we have already determined that the false imprisonment conviction was supported by substantial evidence, this part of Defendant’s claim is resolved.
{12} “[T]he killing of one human being by another without lawful justification or excuse ... in the commission of or attempt to commit any felony” is first degree murder. Section 30-2-1 (A)(2). In New Mexico, the underlying felony must be a first degree felony, an inherently dangerous lesser degree felony, or a lesser degree felony committed under inherently dangerous circumstances. State v. Harrison,
{13} Defendant was charged with felony murder as a principal and as an accessory. The jury was instructed that to find Defendant guilty of felony murder, the State was required to prove beyond a reasonable doubt that:
1.The defendant, Darcy Smith, committed the crime of false imprisonment, under circumstances or in a manner dangerous to human life;
2. Darcy Smith caused the death of [the victim] during the commission of false imprisonment;
3. Darcy Smith intended to kill or knew that her acts created a strong probability of death or great bodily harm[.]
See UJI 14-202 NMRA 2001. To convict Defendant as an accessory to felony murder, the State had to prove the following beyond a reasonable doubt:
1. The felony of false imprisonment was committed under circumstances or in a manner dangerous to human life;
2. The defendant Darcy Smith helped, encouraged or caused the felony of false imprisonment to be committed;
3. The defendant Darcy Smith intended that the false imprisonment be committed;
4. During the commission of the felony [the victim] was killed;
5. The defendant Darcy Smith helped, encouraged, or caused the killing to be committed;
6. The defendant Darcy Smith intended the killing to occur or knew that she was helping to create a strong probability of death or great bodily harm[.]
See UJI 14-2821 NMRA 2001.
{14} False imprisonment is a fourth degree felony, so in order for it to serve as the predicate felony for felony murder, the State would have to prove that it was committed in circumstances that were inherently dangerous to human life. See Harrison,
{15} Defendant’s second claim is that no causal connection was established between the victim’s death and her acts. This claim is without merit. In Harrison, this Court defined causation in the context of felony murder as “those acts of defendant or his accomplice initiating and leading to the homicide without an independent force intervening.”
{16} Defendant also appears to argue that there was insufficient evidence because the testimony of Apodaca was suspect. However, in New Mexico, it is the factfinder that determines credibility. See State v. Varela,
III. TRIAL ERROR
A. Admission of Evidence
{17} Defendant objects to the admission of Brian Jones’s testimony concerning the statements she made to him about her participation in the murder while he and Jennifer Jones shared a house with Defendant and Smith. Defendant asserts that the State improperly elicited statements that were made to him by Smith, not by Defendant. She argues that these statements were hearsay and their admission violated the Sixth Amendment Confrontation Clause. The admission of evidence is a matter within the discretion of the trial court which we will affirm absent a clear abuse of discretion. State v. Worley,
{18} Defendant does not direct us to any specific testimony by Mr. Jones upon which she bases her claim, and we find no support in the record. As Mr. Jones testified about the numerous conversations he had with Defendant and Smith about the victim’s death, the prosecutor repeatedly directed Mr. Jones to describe only the statements made by Defendant. At Defendant’s request, the trial court cautioned the jury during the direct examination that any testimony about statements by Smith, not made in the presence of Defendant, were not to be considered as evidence. During cross-examination, defense counsel also clarified with Mr. Jones that the statements had been made by Defendant. We conclude that the testimony involved Defendant’s own statements and that they were properly admitted under Rule 11-801(D)(2)(a) by the trial court. Because the challenged testimony was not hearsay, the Defendant’s right of confrontation under the Sixth Amendment was not violated. Cf. State v. Castillo-Sanchez,
B. Cross-Examination of Witnesses
{19} Defendant asserts that the tidal court improperly limited the cross-examination of two witnesses, Carlos Maldonado and Brian Jones, and that this action violated her Sixth Amendment right of confrontation. Although the extent of cross-examination is a matter within the discretion of the trial court, we review de novo the question of whether the Confrontation Clause has been violated. State v. Gonzales,
{20} In November 1992, Carlos Maldonado was assigned to criminal investigations with the New Mexico State Police and, in that capacity, investigated the crime scene where the victim’s body was found. At the end of cross-examination, Defendant asked Captain Maldonado two questions about the search at the scene for any buried projectiles from the bullets that had been fired. The prosecutor objected to each question, because Captain Maldonado was not involved in that part of the crime scene investigation. The objections were sustained by the trial court. Two later witnesses did testify about the bullets found at the crime scene. An investigator for the prosecutor’s office described how she conducted the search and retrieval of the bullets at the crime scene, and an analyst with the Department of Public Safety’s Crime Lab testified as an expert witness about those projectiles.
{21} On appeal, Defendant has not shown what evidence she hoped to elicit with the questions to Captain Maldonado, how it would have been relevant, or how her right of confrontation was violated. See In re Ernesto M.,
{22} Defendant asserts that on two occasions the trial court improperly restricted the cross-examination of Brian Jones about his drinking habits during that time period and about whether Smith had abused Defendant. In the first instance, after a question about Mr. Jones’s drinking habits, the prosecutor approached the bench on a matter of courtroom procedure, not to object to the questioning. The judge instructed defense counsel, and the cross-examination resumed. Shortly thereafter, Defendant asked the same question of Mr. Jones which was answered without objection. Moreover, our review of the record shows that Mr. Jones was questioned extensively on direct and cross-examination about his former drinking habits and whether his memory of events had been affected.
{23} Later in the cross-examination, Defendant raised a question about whether Mr. Jones had witnessed Smith abusing Defendant. The prosecutor objected on the grounds that the question exceeded the scope of direct examination and was sustained on that basis. See Rule 11-611(B) (limiting cross-examination to the subject matter of the direct examination). Again Defendant has not informed this Court what the testimony might have been and how it would have been relevant to the murder of the victim. As we understand Defendant’s argument, she contends that if cross-examination had not been restricted, it “might have shown more clearly the truth of her position” and provided information to impeach Apodaea. This speculation is offered without citation to the record or to authority. See In re Adoption of Doe,
{24} We conclude that there was no abuse of discretion on the part of the trial court and no violation of the Confrontation Clause. Cf. State v. Herrera,
C. Jury Instruction on Accomplice Testimony
{25} Defendant claims that the trial court also erred in not giving a requested instruction on accomplice testimony. Defendant asserts that under the circumstances of this case, it was reversible error for the trial court to have refused the requested instruction because the credibility of Apodaca’s testimony was suspect. She had wanted to have the jury directed to “view the testimony of the accomplice [Apodaca] with suspicion and receive it with caution.”
{26} The language of Defendant’s tendered instruction comes from UJI 14-5015 NMRA 2001. However, the use note for that instruction states that no instruction on the subject shall be given. In addition, the General Use Note to Uniform Jury Instructions Criminal NMRA 2001 also prohibits the use of this type of instruction: “In no event may an elements instruction be altered or an instruction given on a subject which a use note directs that no instruction be given.” The trial court refused the instruction on accomplice liability on that basis, stating that he was bound by the uniform jury instructions.
{27} In two recent cases, this Court has rejected precisely the same argument after careful review. See State v. Brown,
{28} The trial court covered the question of witness credibility when it instructed the jury on their duty to assess the credibility of the witnesses:
You alone are the judges of the credibility of the witnesses and the weight to be given to the testimony of each of them. In determining the credit to be given any witness, you should take into account his truthfulness or untruthfulness, his ability and opportunity to observe, his memory, his manner while testifying, any interest, bias or prejudice he may have and the reasonableness of his testimony considered in the light of all evidence in the case.
UJI 14-5020 NMRA 2001. We hold that the trial court did not err when it followed the order of this Court and New Mexico case law and refused the additional instruction on witness credibility. See State v. Smith,
{29} Additionally, our review of the record shows that the jury had sufficient information to assess the credibility of Apodaea and his motive for testifying. Defendant consistently challenged Apodaca’s credibility, cross-examined him in detail on the inconsistencies in his multiple statements and about the plea agreement, and, in closing argument, continued to attack Apodaca’s testimony as not being credible.
D. Jury Instruction on Mere Presence
{30} Defendant argues that the trial court erred when it refused her tendered jury instruction on “mere presence” at a crime. She had wanted the jury to be instructed that “merely being present at the scene of a crime” would not have been sufficient to convict her, but rather that the State must prove that Defendant was “a participant-someone who wanted the crime to be committed.” The uniform jury instructions contain an instruction on mere presence at UJI 14-2823 NMRA 2001, and again the corresponding use note for that instruction states that no instruction on mere presence shall be given. In refusing the proffered instruction, the trial court noted that this Court has not included the instruction in the uniform jury instructions. As discussed above, the trial court did not err when it followed the mandate of this Court and refused the tendered instruction.
{31} In addition, the committee commentary to UJI 14-2823 observes that this kind of instruction is not necessary because “the subject is covered in the essential elements instruction.” The trial court properly instructed the jury on the essential elements of the crimes of felony murder and false imprisonment, and the jury was also told that “[t]he burden is always on the state to prove guilt beyond a reasonable doubt.” UJI 14-5060 NMRA 2001. To meet that burden, the State was required to prove every element of the charges of felony murder and false imprisonment beyond a reasonable doubt. This requirement would have prevented the jury from finding Defendant guilty of these crimes based on her mere presence at the crime scene. Cf. State v. Stettheimer,
E. Comments by the Prosecutor
{32} Defendant asserts that the prosecutor impermissibly referred to her postarrest silence and commented upon her character. She argues that it was error for the trial court to deny her motion for a mistrial. The denial of a motion for mistrial is reviewed for abuse of discretion. State v. Foster,
{33} Defendant does not cite to the record for any instances of a comment upon character, so we address only the claim about two comments made by the prosecutor which allegedly were comments on the right to silence. See State v. Foster,
{34} During the prosecutor’s direct examination of the officer in charge of the investigations, she asked several questions about Apodaca’s arrest and the voluntary statement he had given. She then asked about the officer’s role in the arrest of the other two suspects, Smith and Defendant. During that line of questioning, the prosecutor asked if he had taken a statement from either of them. Before the officer could respond, the prosecutor said, “Strike that.” Defendant also objected before any response could be made by the officer.
{35} Defendant then moved for a mistrial, and argument was heard by the trial court outside the jury’s presence. Defendant argued that the prosecutor was attempting to elicit whether Defendant had invoked her Fifth Amendment rights when she was arrested and to contrast Defendant’s silence with Apodaca’s having given a voluntary statement. In response, the prosecutor apologized for the question and explained that she realized that, as soon as she asked the question, it was a mistake and so had acted to withdraw it. The trial court accepted this explanation and denied Defendant’s motion, finding that the initial questions about Apodaca’s statement were not error and concluding that the single unanswered question did not give rise to adequate grounds for granting a mistrial. The court offered to give a curative instruction; Defendant declined the offer. Cf. State v. Gibson,
{36} We hold that there was no violation of Defendant’s right to silence when the prosecutor’s single question was not answered, defense counsel immediately objected, the prosecutor did not pursue the matter further, and defense counsel refused a curative instruction. See Greer v. Miller,
{37} Defendant also contends that the State’s closing argument contained an improper comment upon her right to silence. In his opening statement, defense counsel had told the jury that while Apodaea and Smith were shooting the victim, “this young lady [Defendant] was sitting in the front of Eric Smith’s car in the middle of the front seat.” Defendant did not testify herself, and no evidence was introduced in support of defense counsel’s assertion. During closing argument, as the prosecutor was reviewing the evidence that had been presented during trial, she stated that “Darcy Smith did not sit in the car while [the victim] was murdered. Darcy Smith was not helpless sitting in the car too, too scared, I guess to drive away. Too scared to call the police.” Defendant objected, and the prosecutor concluded her remarks with the observation that although defense counsel had stated that Defendant remained in the car, there had been no testimony to that effect. Defendant made a motion for mistrial on the basis that the prosecutor had commented on Defendant’s silence. The trial court denied the motion.
{38} The privilege against self-incrimination “prohibits the prosecutor from commenting on a defendant’s failure to testify at trial.” Foster,
{39} In a factually similar case, State v. Henry,
{40} We determine that those circumstances occurred during this case. Taken in context, it is clear that the prosecutor was responding to defense counsel’s claim during opening argument and was thus commenting on what Defendant had already invited. See State v. Padilla,
IV. CONCLUSION
{41} We conclude that there was sufficient evidence to convict Defendant of false imprisonment and felony murder. The trial court did not err in admitting the testimony of Brian Jones, or in refusing Defendant’s tendered instructions on accomplice credibility and mere presence. Defendant’s right to cross-examination was not restricted by the trial court. Neither of the prosecutor’s statements constituted comments on Defendant’s right to silence. The convictions of Defendant for felony murder and false imprisonment are affirmed.
{42} IT IS SO ORDERED.