State v. Garcia, 15008

• Decision Date: 14 November 1994
• Docket Number: No. 15008,15008
• Citation: 1994 NMCA 147,118 N.M. 773,887 P.2d 767
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jose A. GARCIA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 767

887 P.2d 767

118 N.M. 773

STATE of New Mexico, Plaintiff-Appellee, v.Jose A. GARCIA, Defendant-Appellant.

No. 15008.

Court of Appeals of New Mexico.

Nov. 14, 1994.

Certiorari Denied Feb. 2, 1995.

[118 N.M. 774] Tom Udall, Atty. Gen., Ann M. Harvey, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, David Henderson, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

HARTZ, Judge.

Defendant was convicted by a jury of armed robbery and aggravated assault.His sole claim on appeal is that the prosecution improperly used his postarrest silence as evidence against him.We agree and reverse the convictions.

I.BACKGROUND

Defendant presented an alibi defense.There was no dispute that the crimes charged had been committed by someone.On the evening of December 19, 1991, a woman was robbed of her purse at gunpoint in the parking lot of the SuperSave grocery store in Espanola, New Mexico.While fleeing, the robber fired his gun at a pursuing witness.The robber was not apprehended that evening.An employee of the store told an investigating officer that he had seen Defendant behind the store a few minutes before the robbery.Subsequently, Defendant was arrested at his brother's home in Questa.Espanola police detective Johnny Vigil transported Defendant back to Espanola.

At trial Defendant admitted that he had been at the SuperSave during the evening of the robbery.He explained, however, that he was merely accompanying a friend, Leonard Padilla, who had gone to the store to buy dog food.According to Defendant, after Padilla made his purchase the two left in Padilla's truck.Padilla corroborated this account at trial, although he was not certain of the exact date.

Defendant complains of the following questioning of Detective Vigil by the prosecutor during the State's case in chief:

PROSECUTOR: Now when--what kind of papers were served on [Defendant] when he was arrested or when you picked him up in terms of advising him of the charges?

VIGIL: He was given a copy of the arrest warrant and the affidavit.

PROSECUTOR: Okay.And how long did you spend with [Defendant] on the 26th?

VIGIL: Travelled up to Taos, spoke to some of the deputies that had picked him up in Questa, then we travelled back to Espanola.

PROSECUTOR: Okay.And how long does it take to travel back from Taos to Espanola?

VIGIL: It's probably a 45-minute drive.

PROSECUTOR: Okay.And did you also participate in booking [Defendant]?

VIGIL: Yes, I did.

PROSECUTOR: About how long did that take?

VIGIL: Probably about 10 minutes.

PROSECUTOR: What next steps did you take in the investigation?

VIGIL: What I did is I went ahead and took [Defendant's] boots--

PROSECUTOR: Why did you do that?

VIGIL: --the evening of his arrest.I had been told by Officer Jesse Marquez that while he was attempting to catch up to a possible suspect headed in a northerly direction from SuperSave he had seen some waffle type shoe prints headed in a northerly direction from SuperSave as it had snowed during that particular time of the year.The boots or shoes that [Defendant] had on at the time of his arrest had some waffle-type shoe prints on it.

PROSECUTOR: Were you ever able to locate the prints that Officer Marquez had mentioned to you?

VIGIL: No.

PROSECUTOR: Okay.What else did you do then next?

VIGIL: I sent this evidence that I had to the crime lab for analysis.

PROSECUTOR: Okay.Have you--how many cases have you worked in your nine and a half years with the Espanola Police Department?Can you give an estimate?Say major--major crimes as opposed to maybe when you were on patrol and doing traffic and stuff, but major cases.

VIGIL: I would have to say a substantial number of cases.

PROSECUTOR: More than 100?

VIGIL: That's probably a close estimate.

PROSECUTOR: Okay.While investigating those cases, have you ever arrested a suspect who indicated to you that he had an alibi for the time of the crime?

VIGIL: Yes.

PROSECUTOR: And what did you do when a suspect said he had an alibi?What is your responsibility then?

VIGIL: If an individual says he has an alibi it would be my responsibility or an investigator's responsibility to check it out and see if in fact it is true or not true.

PROSECUTOR: Have you ever had the occasion to check out an alibi on a suspect that you've already arrested and found that the alibi checked out?

VIGIL: Yes.

PROSECUTOR: And then what's your responsibility?

VIGIL: To share that information with the district attorney.

PROSECUTOR: Has that ever resulted in the suspect then being freed, let go, cleared?

VIGIL: I would have to say that's happened on at least a couple of occasions.

PROSECUTOR: Okay.When was the first time you learned that there was an alleged alibi for Jose Garcia in this incident?

VIGIL: The first time I learned was I think it was back in August of 92 when this case came to trial.(Emphasis added.)

After the prosecutor asked one more question and received an answer, defense counsel asked to approach the bench, where he moved for a mistrial on the ground that the prosecutor had commented upon Defendant's exercise of his right to remain silent.The prosecutor responded as follows:

Your Honor, I haven't asked him anything about what the defendant said or didn't say.It is a fact that the first time he heard about [inaudible] was in August.The case law is quite clear that there is a difference between commenting on a person's right to remain silent and commenting on recent fabrication, especially when it would be natural under the circumstances to make a statement to disclaim something.It was the defendant's choice to raise his defense as having an alibi.

After further argument by defense counsel, the prosecutor continued:

I haven't commented on the defendant.There's another source for mentioning the alibi, and that's Leonard Padilla, who could have gone to the officer.

The district court asked defense counsel if an instruction to the jury would cure any prejudice.Defense counsel replied that any instruction would be inadequate.The court denied the motion for a mistrial and instructed the jury as follows:

The jury is instructed, if it heard or ascertained anything in the witness's last answer, and it was a fairly long--the question wasn't as long as the answer was narrative--but, anything that may have been heard or not as to anything Mr. Garcia, the Defendant, said or didn't say at the time of his fingerprinting or booking, and any comment by the officer at that time will be stricken and disregarded, if any you heard--there's some dispute and we're going to listen to the tape as to what may have been said--but, it's not appropriate evidence at this time and will not be considered by the jury if you did hear and understand either what Mr. Garcia said or didn't say or was said to have said or not say, or what the Sergeant said at that time.You may proceed.

At the close of the State's case Defendant unsuccessfully renewed his motion for a mistrial.

II.DISCUSSION

A. Postarrest Silence Distinguished From Post-Miranda Silence

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.See, e.g., United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99(1975);State v. Baca, 89 N.M. 204, 549 P.2d 282(1976);SCRA 1986, 11-403 (Repl.1994).

In addition, when the silence came after the defendant received the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), a second reason supports exclusion of the evidence.As the Supreme Court of the United States stated in Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91(1976):

[W]hile it is true that the 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.

Doyle was not predicated on the probativeness, or lack thereof, of postarrest silence.On the contrary, the Supreme Court has held that when Miranda warnings were not given, there is no federal constitutional prohibition on use of evidence of postarrest silence.In Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490(1982)(per curiam), the Court wrote:

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand.A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony.

A third possible reason for excluding evidence of postarrest silence was suggested in State v. Ramirez, 98 N.M. 268, 269, 648 P.2d 307, 308(1982), in which the New Mexico Supreme Court indicated that prosecutorial comment on a defendant's silence may violate New Mexico's rule of evidence SCRA 1986, 11-513(A)(Repl.1994), which forbids comment on any claim of privilege.The decision, however, may rest more particularly on the fact that the silence referred to by the comment in that case encompassed the defendant's failure to testify at trial.SeeGriffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106(1965)(Constitution forbids comment on defendant's failure to testify at trial).Subsequent to Ramirez, in State v. Martin, 101 N.M. 595, 600, 686 P.2d 937, 942(1984), our Supreme Court noted that Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86(1980), held that prearrest silence may be...