State v. Day

• Decision Date: 07 February 1978
• Docket Number: No. 3154,3154
• Citation: 1978 NMCA 18,91 N.M. 570,577 P.2d 878
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Michael Marvin DAY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 878

577 P.2d 878

91 N.M. 570

STATE of New Mexico, Plaintiff-Appellee, v. Michael Marvin DAY, Defendant-Appellant.

No. 3154.

Court of Appeals of New Mexico.

Feb. 7, 1978.

Rehearing Denied Feb. 24, 1978.

Writ of Certiorari Denied March 28, 1978.

[91 N.M. 571] Charles Driscoll, Albuquerque, for defendant-appellant.

Toney Anaya, Atty. Gen., Sammy J. Quintana, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Defendant was convicted of aggravated burglary and criminal sexual penetration in the second degree. In State v. Day, 90 N.M. 154, 560 P.2d 945 (Ct.App.1977) we reversed because of contradictory and confusing jury instructions concerning the defense of insanity at the time of the offenses. Upon retrial, defendant was again convicted. We again reverse, this time because of prosecutor misconduct which cannot be considered as harmless. Because the case must again be retried, we discuss two issues that may arise on retrial. The matters discussed are: (1) prosecutor misconduct; (2) harmless error; (3) the relationship of Evidence Rules 403 and 609, and (4) references to defendant exercising his right to counsel.

Defendant claims the evidence of intent to commit a theft upon entering the victim's apartment and the evidence concerning his insanity were insufficient to raise a jury issue. He claims a double jeopardy issue as to the same evidentiary claims in connection with his first trial. These issues are without merit and do not require discussion. Defendant's arguments are based on a view of the evidence most favorable to defendant. That is not the basis for reviewing the evidence; we review the evidence in the light most favorable to the verdict. State v. Driscoll, 89 N.M. 541, 555 P.2d 136 (1976); State v. Gonzales, 82 N.M. 388, 482 P.2d 252 (Ct.App.1971).

Defendant refers us to various portions of the prosecutor's closing argument to the jury and asserts these amounted to prosecutor misconduct requiring reversal. We discuss two of the prosecutor's arguments. As to the other arguments, either there was no timely objection, State v. Wilson, 86 N.M. 348, 524 P.2d 520 (Ct.App.1974), or the trial court's ruling on the objection made came within the trial court's discretion in controlling arguments of counsel, State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969). Other Criminal Conduct Prosecutor Misconduct

There are three interrelated references to other criminal conduct. All occurred during the prosecutor's cross-examination of defendant. We discuss them as items (a), (b) and (c).

Item (a). Defendant was armed with a "starter pistol" when he entered the victim's apartment. After having defendant testify that he carried a starter pistol rather than a "real gun" so as not to hurt anybody, the prosecutor asked: "Now, let's see, you were convicted in 1964 ". Before the question was completed, defendant interrupted, objected and moved for a mistrial. The objection was sustained and the jury was admonished to disregard the 1964 conviction; the motion for a mistrial was denied. The prosecutor, however, referred to the 1964 conviction in his closing jury argument.

Item (b). Over defendant's objection, the trial court permitted the prosecutor to bring out that defendant had been convicted of robbery in 1965 in California. The admission of this conviction was proper under Evidence Rule 609(a) and (b). We do not discuss the 1965 conviction further in this point; however, the basis for the trial court's admission of this conviction is discussed in point three of this opinion.

Item (c). Immediately after establishing the 1965 robbery conviction, the following occurred:

Question by the prosecutor: So the fact that you weren't carrying a real gun if you had been carrying a real gun, it would have constituted a federal offense, wouldn't it?

Answer: I don't know.

Defense Counsel: Your Honor, I object.

The Court: The objection will be sustained.

On appeal, the State asserts that defendant's objection was untimely. We fail to understand the basis for this contention and the State does not explain its untimeliness claim.

The 1964 conviction was not admissible to attack defendant's credibility under the wording of Evidence Rule 609(b) as amended effective April 1, 1976. The rule, as amended, applied to this case. The 1964 conviction was not admissible because more than ten years had elapsed since the date of the conviction and defendant had never been confined for that conviction. The prosecutor sought admission of the 1964 conviction on the basis of the wording of Evidence Rule 609(b) prior to its amendment in 1976. Although the prosecutor proceeded on an erroneous basis, the prosecutor's error is not to be characterized as misconduct.

Since the issue is misconduct, we do not consider whether the reference to a 1964 conviction, not admissible under the evidence rules, was in itself reversible error. See Albertson v. State, 89 N.M. 499, 554 P.2d 661 (1976).

The misconduct occurred in the prosecutor's closing argument. Defendant, in his closing argument to the jury, asserted that the prosecutor had withheld evidence from the jury that was favorable to the defendant. This evidence, brought out by the defense, was that a witness who observed defendant at the scene stated to the police that defendant acted like a crazy man. This was fair argument on the basis of the evidence. The prosecutor responded to the defense argument by asking the jury "to think about one little fact":

" 'Question' from Mr. McDevitt, standing right over there directed at Michael Day, 'Isn't it true that in 1964 you were convicted of ' 'Objection!' (by Mr. Driscoll). Jury goes into the little room, comes back out and we have the testimony ".

Defendant moved for a mistrial, which was denied. However, the trial court admonished the jury to disregard the prosecutor's comments.

Rule 7-106(C)(1) of the Code of Professional Responsibility states that a lawyer shall not "(s)tate or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence." The fact that the 1964 conviction was not admissible under the evidence rules established the irrelevancy of the conviction. Albertson v. State, supra. The trial court had excluded the 1964 conviction; the reference to that conviction was not supported by admissible evidence. The prosecutor's reference to the 1964 conviction in closing jury argument was misconduct.

On appeal, the State would excuse this misconduct on the basis that defendant had "opened up" the 1964 conviction in his closing argument.

The general rule is that remarks of the district attorney, which ordinarily would be improper, are not ground for reversal if they are provoked by defendant's counsel, and are in reply to his acts or statements, unless such remarks go beyond a pertinent reply and bring before the jury extraneous matters touching important issues. State v. Parks, 25 N.M. 395, 183 P. 433 (1919).

Defendant did refer to a 1964 conviction in closing argument but the reference was part of an argument that defendant's credibility should not be diminished because of his robbery conviction. While defendant misstated the year of that conviction, it is clear that the reference was to the conviction which had been admitted as evidence; see item (b). The prosecutor's argument was not in reply to defense counsel's remarks concerning the conviction or concerning defendant's credibility; nor was the prosecutor's argument provoked by these remarks. The prosecutor's argument was provoked by and was in reply to defendant's argument that the prosecutor withheld evidence favorable to the defense. The prosecutor's argument was that the defense had also withheld evidence by objecting to testimony concerning the inadmissible 1964 conviction.

In addition, the prosecutor's argument went beyond any pertinent reply to defendant's misstatement that the robbery conviction occurred in 1964. The prosecutor's argument referred to an extraneous matter, a conviction not admissible under the rules of evidence. The prosecutor's misconduct in jury argument was not excused on the basis that defendant opened up the 1964 conviction.

There is no justification for the prosecutor's question about a possible federal offense if defendant had carried a real gun. It was not relevant to any issue in the trial. Evidence Rule 401. This inquiry did not involve other crimes or wrongs, see Evidence Rule 404(b); the inquiry was speculation about a possible crime.

On appeal, the State does not attempt to justify the question concerning a possible federal crime. Rather, the State's argument is that defendant did not object until the question had been answered and did not, at the time, move for a mistrial. These procedural arguments go to the consequences of the misconduct which we consider in point two.

This point does no more that identify two items of misconduct. They were the argument to the jury about a conviction that had been excluded from evidence, item (a) and questioning defendant concerning a possible federal crime, item (c).

Harmless Error

What is the consequence of the two items of prosecutor misconduct? Specifically, was defendant harmed by the misconduct and, if so, how? These questions arise because there is substantial evidence justifying the convictions and because the case has now been twice tried with the same jury result at each trial. In fairness, is another trial necessary? Yes.

Neither the improper jury argument nor the reference to a possible federal crime had any place in the trial. These two items of misconduct could have had no purpose other than to arouse the prejudices of the jury against defendant. See State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966).

This purposeful misconduct must be considered in light of the harmless error rule. For the misconduct to be considered harmless, we must be able to say that the evidence of guilt was so...