State v. Degraff

Citation131 P.3d 61,2006 NMSC 011
Decision Date28 February 2006
Docket NumberNo. 28,306.,28,306.
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Steven DeGRAFF, Defendant-Appellant.
CourtSupreme Court of New Mexico

John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Patricia A. Madrid, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.


MINZNER, Justice.

{1} Following a jury trial, Defendant Steven DeGraff was convicted of: felony murder, contrary to NMSA 1978, § 30-2-1(A)(2) (1994); armed robbery, contrary to NMSA 1978, § 30-16-2 (1973); aggravated burglary, contrary to NMSA 1978, § 30-16-4 (1963); and five counts of tampering with evidence, contrary to NMSA 1978, § 30-22-5 (1963, prior to 2003 amendment). The district court dismissed the armed robbery conviction as the predicate felony underlying Defendant's felony murder conviction. On appeal, Defendant argues that because the prosecutor asked the jury to draw an inference of guilt from his failure to tell the police he acted in self-defense, he was denied due process contrary to the Fifth Amendment, and he is entitled to a new trial. He also argues that he has been subject to multiple punishments, contrary to the Double Jeopardy Clause of the Fifth Amendment, and he is entitled to an amended judgment and sentence, because (1) his convictions for both aggravated burglary and felony murder are based on the same conduct, and (2) his convictions for tampering with evidence are based on a continuous course of conduct.

{2} Because the prosecutor's comments did not amount to fundamental error, we affirm the felony murder conviction. Nevertheless, we take this opportunity to clarify our approach to unpreserved claims that a prosecutor has commented on a defendant's silence. We conclude that the felony murder and aggravated burglary convictions are not based on the same conduct and affirm both convictions. Because we conclude that three convictions for tampering with evidence are based on a single course of conduct and the Legislature did not intend to impose multiple punishments for this conduct, we remand with instructions to dismiss two of the tampering convictions.


{3} Sometime in the evening of December 7, 2001, Father Michael Mack was killed in his home. Investigators found that he had been hit on the head numerous times with a hammer and a glass or crystal object. He had also been stabbed in the neck at least eight times with a knife. Defendant was arrested for unrelated auto theft charges by the Pojoaque Tribal Police on December 16, 2001, and remained in custody from December 16 to December 28.1 On December 28, 2001, Defendant gave a voluntary statement to the investigating officers. Defendant admitted that he was at the victim's home and was responsible for the victim's death, but Defendant explained that he was defending himself from sexual advances. After the attack, Defendant picked up the knife, glass, and hammer he had used as weapons, and he fled in the victim's car. Defendant threw the knife, glass, and hammer out of the car on the highway. On the next day he abandoned the car and returned to his house. While he was at his home, he changed out of the clothes he had worn during the attack, leaving the clothes in a pillowcase in a grey van outside the house.

{4} During the State's closing argument, the prosecutor explained that the case "is not so much what [Defendant] did on December 7th but what he did afterward." The prosecutor commented in closing arguments:

So I'm saying wouldn't a person have called Deputy Baker or Deputy Toya and said "Deputy, something terrible has happened, I'm sorry, I was defending myself from a vicious attack. I'm a victim and I'm calling you now because I want you to know the truth." But that didn't happen in this case, did it? And there's a reason why it didn't happen that way. Because the story that [Defendant] gave is a complete fabrication.

{5} The prosecutor made repeated references in his closing argument to the three weeks between the murder and Defendant's statement to officers. He argued that Defendant had time in those three weeks to fabricate a self-defense story, and that his story was not credible because he did not volunteer it sooner. The defense did not object to these comments at trial.


{6} Defendant now argues that these statements were fundamental error and necessitate a new trial. Alternatively, he suggests he is entitled to a remand for entry of an amended judgment and sentence. His arguments primarily raise questions of constitutional law, which we review de novo. State v. Javier M., 2001-NMSC-030, ¶ 17, 131 N.M. 1, 33 P.3d 1. This general rule is particularly relevant when constitutional rights are at issue.

A. Comment on Silence Claims

{7} We first consider whether the prosecutor commented on Defendant's silence, contrary to his constitutional rights. We then address whether and how Defendant's silence was protected. Finally, we determine whether the comment should be characterized as fundamental error.

1. Comment

{8} In Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the United States Supreme Court held that a defendant's Fifth Amendment privilege is violated in a state court trial when the prosecution asks the jury to draw an adverse conclusion from the defendant's failure to testify. New Mexico courts, following Griffin, consider "whether the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be a comment" on the accused's exercise of his or her right to remain silent. State v. Clark, 108 N.M. 288, 302, 772 P.2d 322, 336 (1989), overruled on other grounds by State v. Henderson, 109 N.M. 655, 789 P.2d 603 (1990). We evaluate the statement in context "to determine the manifest intention that prompted the remarks as well as the natural and necessary impact upon the jury." State v. Isiah, 109 N.M. 21, 24-25, 781 P.2d 293, 296 (1989), overruled on other grounds by State v. Lucero, 116 N.M. 450, 863 P.2d 1071 (1993). We have recognized that indirect comments, both those that are ambiguous, and those inadvertently elicited by the prosecutor from a witness, see State v. Baca, 89 N.M. 204, 549 P.2d 282 (1976), are less likely to call a jury's attention to the defendant's exercise of his rights. We have considered direct or indirect comments, Clark, 108 N.M. at 302, 772 P.2d at 336, and comments addressed both to a defendant's failure to testify and his or her "right to remain silent when taken into custody," Isiah, 109 N.M. at 24, 781 P.2d at 296, in each case focusing on the likely impact of the comment on the jury.

{9} Where comments by the prosecutor are ambiguous, we consider what inference the jury was asked to draw from the defendant's silence and the propriety of that inference. For example, in State v. Garcia, 118 N.M. 773, 777-78, 887 P.2d 767, 771-72 (Ct.App.1994), a series of questions regarding how suspects normally act when they have an alibi was improper as a matter of due process; the jury was implicitly asked to conclude that the defendant's alibi was fabricated because it was not immediately revealed to the police on arrest. Similarly, a prosecutor's questions regarding a defendant's failure to correct or amend his initial statement to the police were improper because they invited the jury to draw a negative inference from the defendant's failure to make an additional statement after his arrest. State v. Hennessy, 114 N.M. 283, 288-89, 837 P.2d 1366, 1371-72 (Ct.App.1992), overruled on other grounds by State v. Lucero, 116 N.M. 450, 863 P.2d 1071 (1993). But cf. State v. Foster, 1998-NMCA-163, ¶¶ 14-15, 126 N.M. 177, 967 P.2d 852 (holding that evidence of a defendant's failure to mention in initial interviews threats made on the day of shooting had significant probative value as impeachment, was admissible as a matter of New Mexico evidentiary law, and did not deny the defendant due process). Although Foster and Hennessy initially appear contradictory, they illuminate the difference between a permissible comment on a defendant's incomplete statement, as in Foster, and commenting on a defendant's silence, as in Hennessy. On the facts of this case, we conclude the prosecutor invited the jury to infer guilt from silence.

{10} The prosecutor used Defendant's silence immediately after the attack, and in the following weeks, to suggest that Defendant's explanation was fabricated. In closing argument, the prosecutor repeatedly stated that Defendant had three weeks to fabricate a story and suggested that most people would come forward immediately if they had killed another in self-defense. The prosecution's comments regarding the three weeks between the attack and Defendant's statement were indirect, but the jury was implicitly asked to reject Defendant's self-defense explanation because Defendant did not offer it immediately. We conclude that the prosecutor's statement regarding Defendant's failure to come forward immediately was a comment on Defendant's pre-arrest silence, and the references to the three weeks between the attack and Defendant's statement to police was a comment on both pre-arrest silence and post-arrest silence while he was in the custody of the Pojoaque Tribal Police. We next consider whether and how that silence was protected.

2. Protection

{11} There are four relevant time periods at which a defendant may either volunteer a statement or remain silent: before arrest; after arrest, but before the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), have been given; after Miranda warnings have been given; and at trial. The general rule limiting prosecution comment on a defendant's silence is drawn from multiple sources, which are variously applied to each of...

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