State v. Flanagan

• Decision Date: 18 October 1990
• Docket Number: No. 11247,11247
• Citation: 111 N.M. 93,1990 NMCA 113,801 P.2d 675
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jeffrey FLANAGAN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 675

801 P.2d 675

111 N.M. 93

STATE of New Mexico, Plaintiff-Appellee, v. Jeffrey FLANAGAN, Defendant-Appellant.

No. 11247.

Court of Appeals of New Mexico.

Oct. 18, 1990.

Certiorari Denied Nov. 26, 1990.

[111 N.M. 94] Hal Stratton, Atty. Gen., Charles H. Rennick, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Sheila Lewis, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

CHAVEZ, Judge.

Defendant appeals his conviction for homicide by vehicle. The docketing statement raised eight issues. Defendant has briefed five issues. Issues not briefed on appeal are deemed abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). The following issues were raised on appeal: (1) whether the prosecutor impermissibly introduced evidence of insurance in violation of SCRA 1986, 11-411; (2) whether the trial court erred in allowing the prosecutor to cross-examine defendant with questions that seemingly required defendant to comment on the veracity of the state's witnesses; (3) whether the prosecutor intentionally introduced evidence of defendant's prior bad acts; (4) whether the prosecutor deprived defendant of a fair trial during closing argument; and (5) whether reversal is appropriate under a cumulative error argument. We affirm.

BACKGROUND

On August 18, 1987, defendant was driving his vehicle north on Fourth Street in Albuquerque, New Mexico. Prior to this time, he had replaced the engine in the vehicle. As he left the intersection of Claremont and Fourth Street, his vehicle rapidly accelerated and hit the left rear side of a pickup truck driven by Clyde Vigil. The pickup went out of control and rolled over several times. Mr. Vigil died four days later from the resulting injuries.

The state contends that defendant was reckless in the operation of his vehicle. Defendant alleged that, at the time of the accident, he was driving between 35-40 mph when he accelerated to pass another vehicle. The other vehicle also accelerated, so defendant took his foot off the gas pedal to allow the vehicle to pass. After doing so, his vehicle malfunctioned and continued to accelerate. At trial, it was uncontested that defendant's vehicle gained speed as it travelled down Fourth Street. There was significant difference in the testimony of the state's witnesses concerning the speed of defendant's vehicle. The estimates ranged from 50 mph to 60-70 mph.

1. LIABILITY INSURANCE

Defendant first contends he was denied a fair trial when the prosecutor impermissibly introduced evidence of defendant's status as an insured driver. He characterizes the prosecution's conduct as the intentional interjection of improper evidence in violation of Rule 11-411, and argues that an admonition to the jury to disregard the evidence would have been ineffective to remove the prejudice, citing State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966).

Because this case arose out of an automobile accident, it is not unusual that it involved an investigation by an insurance company. See NMSA 1978, Sec. 66-5-205 (Repl.Pamp.1989). Insurance was mentioned during the opening statement without objection and again during the examination of the first insurance witness. Defendant did not object to the mention of insurance until the very end of this witness's testimony. His objection mainly concerned privilege. Defendant at that point moved for a mistrial based on the mention of insurance. Defendant did not ask to have the jury admonished that insurance was irrelevant to the issues on trial.

Motions for mistrial are directed to the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. State v. Simonson, 100 N.M. 297, 669 P.2d 1092 (1983). An abuse of discretion occurs when the ruling of the court is clearly against the logic and effect of the facts and circumstances or the reasonable, probable, and actual deductions to be drawn from the facts and circumstances. Id.

The general rule in New Mexico is that error in the admission of evidence is cured by striking the evidence and admonishing the jury to disregard it. Id. In a civil case, this court has previously held that the prejudicial effect of a reference to insurance during opening statements was cured by the prompt admonishment of the trial court. Chavez v. Chenoweth, 89 N.M. 423, 553 P.2d 703 (Ct.App.1976). Also in the context of civil cases, the trial court was held not to have abused its discretion in denying a motion for mistrial based on a witness's unsolicited reference to insurance when the defendant did not ask to have the jury instructed that insurance had no bear ing on the issue. Cardoza v. Town of Silver City, 96 N.M. 130, 628 P.2d 1126 (Ct.App.1981).

In civil cases, the mention of insurance is more prejudicial because it implies to the jury the availability of a "deep pocket." In criminal cases, however, particularly in light of the law requiring financial responsibility, Sec. 66-5-205, the prejudice flowing from the mention of insurance is speculative at best. Because defendant did not ask for a prompt admonition, and because the possibility of prejudice was highly speculative, the trial court did not abuse its discretion in denying defendant's motion for a mistrial.

2. COMMENTS ON VERACITY

Defendant contends that the trial court erred in allowing the prosecutor to cross-examine him with questions that required him to comment on the veracity of the state's witnesses. This is a case in which a number of different witnesses to an automobile accident testified to different views of the accident and the subsequent investigation. There were three potential areas of difference. First, defendant's testimony appeared to differ from the testimony of the witness in the car behind him as to when the witness was behind him and when defendant accelerated. Second, defendant's testimony appeared to differ from that of a police officer as to whether the officer inspected the accelerator. Third, defendant's testimony appeared to differ from other witnesses as to how fast defendant was driving.

In her cross-examination of defendant, the prosecutor stated that one witness, Michael Johnson, testified that when he pulled onto Fourth Street that he was right behind defendant, adding "and you say that [testimony] was incorrect?" Second, the prosecutor stated that the policeman testified that he checked the accelerator, and then the prosecutor asked, "Are you saying that he did not do that?" And last, the prosecutor asked if the three eyewitnesses who testified "are all mistaken about the speed that you were going?" When the prosecutor started this line of questioning, the public defender objected that it was improper for a witness to comment on the testimony of another witness. The prosecutor argued that she was simply asking defendant to explain the discrepancies. The court allowed all three questions and overruled defendant's objection to the line of questioning.

The prosecutor's questions gave defendant an opportunity to suggest that his testimony was not inconsistent with that of the other witnesses. For example, the prosecutor's questions concerning the accelerator allowed defendant to explain the difference between the gas pedal, which the police officer inspected, and the return spring and the throttle linkage, which defendant claimed were defective. The prosecutor's questions concerning speed allowed defendant to explain that there was a difference between his speed as he turned the corner and his speed at the time of the accident.

In State v. Martinez, 34 N.M. 112, 278 P. 210 (1929), our supreme court held that asking one witness whether another witness was mistaken was improper questioning. The court affirmed the district court's ruling that the following question was improper: " 'Now if Juan says that he ran clear across the bridge and met you about three steps on the other side of the bridge, and that right then the second shot was fired, Juan is mistaken, isn't he?' " Id. at 114, 278 P. at 211. The state argues that the subsequent adoption of the rules of evidence has abrogated the rule in Martinez. It points to SCRA 1986, 11-704, which permits opinion testimony, and to State v. Lopez, 84 N.M. 805, 508 P.2d 1292 (1973), where the supreme court rejected the objection that the evidence might invade the province of the jury.

One might question the continuing validity of the holding in Martinez, because the decision rested, at least in part, on the proposition that "[i]t is not proper to ask the opinion of one witness as to the credibility of another witness." Id., 34 N.M. at 114, 278 P. at 211. Several decades after Martinez our supreme court adopted SCRA 1986, 11-608, which permits a wit ness to express an opinion as to the credibility of another witness (subject, of course, to the requirement that the witness expressing an opinion has a sufficient basis for the opinion). Nevertheless, the holding in Martinez remains sound, particularly when applied to cross-examination of a defendant in a criminal case. Asking a defendant if a witness for the state is "mistaken" too easily lends itself to abuse. Such questioning may amount to simply argument to the jury, in which the prosecutor improperly suggests that the only possible alternatives are that either the defendant or the witness is a liar. See Commonwealth v. Long, 17 Mass.App. 707, 462 N.E.2d 330 (1984).

Other jurisdictions support the proposition that questions that require a witness to comment on the veracity or credibility of the trial testimony of other witnesses, particularly law enforcement officers, may be improper. See, e.g., United States v. Richter, 826 F.2d 206 (2d Cir.1987); Commonwealth v. Ward, 15 Mass.App. 400, 446 N.E.2d 89 (1983). One rationale behind this rule is that it is the role of the jury to determine the credibility of witnesses. State v. Martinez; United States v. Richter; Commonwealth v. Ward. Whether the...