1998 -NMCA- 163, State v. Foster, 18,450

• Citation: 126 N.M. 177,967 P.2d 852,1998 NMCA 163
• Decision Date: 22 September 1998
• Docket Number: No. 18,450,18,450
• Parties: , 1998 -NMCA- 163 STATE of New Mexico, Plaintiff-Appellee, v. Eugene FOSTER, Jr., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 852

967 P.2d 852

126 N.M. 177, 1998 -NMCA- 163

STATE of New Mexico, Plaintiff-Appellee, v. Eugene FOSTER, Jr., Defendant-Appellant.

No. 18,450.

Court of Appeals of New Mexico.

Sept. 22, 1998.

Certiorari Denied, No. 25, 415,

Nov. 6, 1998.

Tom Udall, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, for Appellee.

Hilary Lamberton, Lamberton & Riedel, Santa Fe, for Appellant.

OPINION

HARTZ, Chief Judge.

¶1 Defendant appeals his convictions on one count of second degree murder, four counts of child abuse, and one count of carrying a concealed weapon. He claims that (1) the prosecutor committed reversible error by commenting on his silence after being arrested and given Miranda warnings; (2) re-prosecution of Defendant was barred on double-jeopardy grounds because prosecutorial misconduct caused his first trial to end in a mistrial; (3) the district court erroneously denied his motions for a mistrial after a prosecution witness implied that Defendant and his brother had committed prior bad acts; (4) the district court committed reversible error by permitting the prosecutor to use as a demonstrative exhibit a mannequin dressed in the victim's bloody clothes; and (5) Defendant was denied effective assistance of counsel. We affirm the convictions.

I. BACKGROUND

¶2 On December 13, 1995, Defendant killed his father's girlfriend, Laverne Mayfield, in the presence of her four children. At trial Defendant claimed self-defense. He testified as follows: He and some friends had been drinking and playing cards at the house he shared with his father and brother. His father came home with Mayfield around 9:00 p.m. Drunk and angry, his father put the barrel of a loaded rifle up to Defendant's head, cocked the trigger, threatened to kill him, and then left with Mayfield. About 40 minutes later Defendant went to Mayfield's house. He and Mayfield had a disagreement and she told him to leave. Mayfield followed him as he was leaving. When he left, the door slammed behind him, but Mayfield immediately opened it, startling him. He then shot her six times in quick succession.

¶3 After shooting Mayfield, Defendant fled home and put the gun in an outside wood box. Clovis police officers arrested Defendant the following day. After he was taken to the police station and given Miranda warnings, Defendant made a statement to the officers. He admitted shooting Mayfield. He said that he had argued with his father, but he did not recount the rifle incident. He described where he had put the gun and took a police detective to the hiding place.

¶4 A defense expert, Dr. Moss Aubrey, testified at trial that having a parent hold a gun to one's head would create a high level of stress. A result of this stress can be a state of hypervigilance, which is characterized by a narrowing of focus and functioning in a "fight or flight" survival mode. Dr. Aubrey stated that by opening the door suddenly after Defendant left. Mayfield may have especially startled Defendant if Defendant was in such a state.

¶5 Defendant's first trial was in July 1996. It was aborted when the district court granted Defendant's motion for a mistrial because of errors in the prosecution's opening statement. Defendant contended that the prosecutor had improperly commented on Defendant's right to remain silent by stating that Defendant did not claim self-defense before his arrest or when he made his statement to police. Defendant filed a motion to bar his retrial on double-jeopardy grounds. The motion was denied. At his second trial in November 1996, Defendant was convicted of second degree murder and other offenses. He was sentenced to 28 years in prison. We will summarize additional facts as we address the specific issues on appeal.

II. DISCUSSION

A. Comment on Silence at Second Trial

¶6 At Defendant's second trial, defense counsel described the rifle incident in her opening statement. During direct examination of Clovis police detective Gary Gulley, the prosecutor raised Defendant's failure to mention the incident before trial. Gulley had taken Defendant's statement after his arrest. In questioning Gulley, the prosecutor elicited that Gulley had heard Defendant's opening statement in which the rifle incident was described. He then asked, "When you talked to this defendant, did this defendant ... tell you anything about that?" Gulley responded that Defendant had not. Defense counsel objected, arguing at a bench conference that testimony about what Defendant did not tell police was an impermissible comment on Defendant's silence. Finding that Defendant had waived his Miranda rights, the district court allowed the testimony.

¶7 On two occasions later in the trial, the prosecutor again elicited that Defendant had not told the police about the rifle incident. The prosecutor asked Defendant on cross-examination whether he had mentioned the incident to any officer on the day of his arrest. Also, as a rebuttal witness, Gulley repeated the essence of his prior testimony on this issue. Although on these occasions defense counsel did not object on the ground raised on appeal, he apparently had been granted a continuing objection by the district court.

¶8 Because the facts are undisputed, we review de novo the legal question whether the prosecutor improperly commented on Defendant's silence. See State v. Attaway, 117 N.M. 141, 144-45, 870 P.2d 103, 106-07 (1994). We find no reversible error.

¶9 We begin our discussion by noting the general rule forbidding a prosecutor from commenting on a defendant's silence or introducing evidence of silence. There are three independent underpinnings for the general rule: (1) the constitutional privilege against self-incrimination, (2) constitutional due process, and (3) the rules of evidence barring irrelevant evidence, Rule 11-402 NMRA 1998, and evidence whose probative value is substantially outweighed by the danger of unfair prejudice, Rule 11-403 NMRA 1998. Recognizing these different sources of the general rule can assist in the analysis of particular cases, especially when the prosecutor claims an exception to the general rule. Each source deserves a brief comment.

¶10 First, the privilege against self-incrimination. The privilege prohibits the prosecutor from commenting on a defendant's failure to testify at trial. See Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. Miller, 76 N.M. 62, 68-71, 412 P.2d 240, 244-46 (1966). It is uncertain, however, to what extent the privilege precludes comment on a defendant's silence in other contexts. See Jenkins v. Anderson, 447 U.S. 231, 241-44, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) (Stevens, J., concurring) (disputing whether reference to prearrest silence implicates Fifth Amendment).

¶11 As for due process, its application derives from the requirements imposed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When a defendant has invoked the right to remain silent after being given Miranda warnings, use of that silence by the prosecution at trial violates due process. In Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court explained:

[W]hile it is true that Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.

See State v. Martin, 101 N.M. 595, 599-600, 686 P.2d 937, 941-42 (1984).

¶12 Finally, even in the absence of constitutional restrictions on the prosecution's use of a defendant's silence, a court need not permit such use at trial. "Each jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial." Jenkins, 447 U.S. at 240, 100 S.Ct. 2124; see Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam). New Mexico has been very cautious about the use of silence at trial. "Evidence of a defendant's postarrest silence is generally inadmissible because the probative value of the silence is substantially outweighed by the potential for unfair prejudice." State v. Garcia, 118 N.M. 773, 776, 887 P.2d 767, 770 (Ct.App.1994); see United States v. Hale, 422 U.S. 171, 176-77, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (silence following Miranda warnings usually has no probative value); Martin, 101 N.M. at 599-600, 686 P.2d at 941-42; State v. Hennessy, 114 N.M. 283, 288, 837 P.2d 1366, 1371 (Ct.App.1992), overruled on other grounds by State v. Lucero, 116 N.M. 450, 453, 863 P.2d 1071, 1074 (1993).

¶13 We now turn to the analysis of the questioning and evidence challenged in this case. To begin with, we address the cross-examination of Defendant and the rebuttal testimony by Gulley. This evidence was offered after Defendant had testified in his own behalf. Therefore, the privilege against self-incrimination would not bar the evidence. "When [the defendant] takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined." Jenkins, 447 U.S. at 235, 100 S.Ct. 2124 (internal quotation marks and citation omitted). In particular, the privilege against self-incrimination is no bar to impeaching a defendant's testimony with evidence of the defendant's silence prior to arrest, see id. at 238, 100 S.Ct. 2124; State v. Gonzales, 113 N.M. 221, 229, 824 P.2d 1023, 1031 (1992), or even after arrest, see Fletcher, 455 U.S. at 607, 102 S.Ct. 1309 (due process not violated by such impeachment); Garcia, 118 N.M. at 777, 887 P.2d at 771.

¶14 The fact that Defendant testified, however, does not eliminate the due process concern. Even when a defendant has testified, it is fundamentally unfair under the ...