State v. Gutierrez

• Decision Date: 11 July 2005
• Docket Number: No. 23,753.,23,753.
• Citation: 2005 NMCA 093,117 P.3d 953
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Peter P. GUTIERREZ, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 953

117 P.3d 953

2005 NMCA 093

STATE of New Mexico, Plaintiff-Appellee, v. Peter P. GUTIERREZ, Defendant-Appellant.

No. 23,753.

Court of Appeals of New Mexico.

May 26, 2005.

Certiorari Granted, No. 29,286, July 11, 2005.

Patricia A. Madrid, Attorney General, Santa Fe, Max Shepherd, Assistant Attorney General, Albuquerque, for Appellee.

John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, for Appellant.

OPINION

WECHSLER, J.

{1} Defendant appeals his convictions for intimidation of a witness, aggravated stalking, criminal damage to property, telephone harassment, and evading and eluding a police officer. Defendant argues on appeal that his convictions should be reversed because the prosecutor inappropriately mentioned Defendant's refusal to submit to a polygraph examination during opening statement. Defendant also argues that the district court erred in denying his motion for directed verdict as to the evading and eluding charge. We conclude that the prosecutor improperly commented on Defendant's silence but that the comment was harmless beyond a reasonable doubt. We further conclude that there was sufficient evidence to support Defendant's conviction of evading and eluding. Therefore, we affirm Defendant's convictions.

Factual and Procedural History

{2} Police arrested Defendant for allegedly stalking the victim in violation of a domestic violence order. See NMSA 1978, § 30-3A-3.1(A)(1) (1997) (defining aggravated stalking as stalking in violation of an order of protection issued by a court). At trial, the State introduced, through the victim, the domestic violence order, which applied to both parties. The victim testified that Defendant stalked her, harassed her with telephone calls, sent letters to her home, placed letters on her car, and continually drove past her home, all in violation of the domestic violence order. The victim testified that she knew Defendant's writing well and recognized his voice on the telephone, because they had dated periodically for approximately five years and had known each other for approximately fifteen to twenty years. The State introduced into evidence four handwritten letters, which the victim identified as written by Defendant. The victim also testified that she had received additional letters from Defendant, which she threw away, and that she called the police whenever she received a letter or telephone call from Defendant. One of the letters included a comment about "signs."

{3} The victim testified that signs started appearing "all over the neighborhood." The State, again using the victim to lay the foundation, admitted into evidence three signs, discovered in her father's yard, which the victim testified were written by Defendant. The signs included derogatory language about the victim, including calling her a "whore" or a "crack whore," and also contained her work and home telephone numbers.

{4} In addition to receiving harassing telephone calls from Defendant at her home and work, the victim testified that she received a telephone call from Defendant while she was staying at a local hotel. The victim stated that when she answered the telephone, Defendant stated: "Hello whore" and then she hung up. When the victim checked out of the hotel, she stated that she found that her vehicle had been scratched or "keyed" during the night. The State introduced photographs depicting the victim's vehicle after the alleged incident. The vehicle was scratched all the way around, with the word "whore" etched into the paint in numerous places. Officer Keith Farkas stated that he did not dust the vehicle for fingerprints and that it was unlikely fingerprints would be found on the signs because they were made out of cardboard. The victim testified that it cost her nearly $3000 to have the vehicle repaired.

{5} The victim stated that the day after her vehicle was damaged she received another telephone call from Defendant while Officer Russell Gould was at her home investigating the case. Officer Gould testified that the victim told him about the signs, telephone calls, and letters and identified Defendant as the perpetrator. While he was documenting the victim's statement, Officer Gould said she received a telephone call. The victim answered the telephone, and promptly handed it to Officer Gould whispering: "It's him." Officer Gould testified that he heard a male voice say: "What do you think about last night?" The victim also stated that she received a telephone call from Defendant while he was in jail stating: "You're dead." However, the PIN number required to make telephone calls from jail belonged to another individual, who was not in jail at that time.

{6} Detective Keith Bessette was assigned to investigate the victim's allegations against Defendant. He stated that the victim identified Defendant as the author of the signs and letters that were admitted into evidence. He stated that no fingerprints were taken from the letters or signs because he suspected they had been handled by too many people. He also stated that it was impossible for him to get a handwriting expert to match Defendant's writing to that on the signs and letters because his department lacked funding and there were not any state facilities that could do the work. He believed the victim because she was "[o]ne hundred percent" positive that Defendant was responsible for the letters and signs.

{7} Detective Bessette interviewed Defendant, who waived his Miranda rights and gave a statement. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Defendant stated that he had not made any telephone calls to the victim and that he "may" have written some letters to her when he was drunk, but had not written the letters at issue. A jury convicted Defendant of intimidation of a witness, aggravated stalking, criminal damage to property, telephone harassment, and evading and eluding a police officer. The remaining facts will be discussed as they pertain to the particular issues on appeal.

Comment on Defendant's Refusal to Submit to a Polygraph Examination

{8} During the State's opening statement, the prosecutor commented on Defendant's refusal to submit to a polygraph examination. Defendant contends that the comment requires reversal. The parties dispute the standard of review we should apply to this issue. The State argues, relying on State v. Casaus, 1996-NMCA-031, ¶ 34, 121 N.M. 481, 913 P.2d 669, that we should apply an abuse of discretion standard because Defendant's motion for mistrial was denied. Defendant argues that a de novo standard of review is proper because the prosecutor's statement infringed on his Fifth Amendment right to remain silent and was prosecutorial misconduct because the statement improperly impugned Defendant's credibility. See, e.g., State v. Estrada, 2001-NMCA-034, ¶ 30, 130 N.M. 358, 24 P.3d 793 ("Where the facts are undisputed, we review de novo the legal question whether the prosecutor improperly commented on Defendant's silence.").

{9} This case is distinguishable from Casaus. The prosecutor in Casaus elicited testimony from a police detective that the defendant had been offered the opportunity to take a polygraph examination and that the defendant had stated that he was willing to do so. Casaus, 1996-NMCA-031, ¶ 35, 121 N.M. 481, 913 P.2d 669. We stated that the testimony did not prejudice the defendant because it tended to aid the defendant by giving the jury the impression that his assent to submit to the polygraph examination indicated that he had nothing to hide. Id. ¶ 36. In addition, because the defendant had waived his Miranda rights prior to being questioned, testimony that he was willing to submit to the test was not an infringement of his rights. Casaus, 1996-NMCA-031, ¶ 37, 121 N.M. 481, 913 P.2d 669. However, we indicated that the analysis might have been different if the state had sought to introduce evidence that the defendant had refused a polygraph examination. Id. ¶ 36. Therefore, while we generally review a denial of a motion for mistrial for abuse of discretion, the issue presented in this case is whether the prosecutor violated Defendant's constitutional rights with his comment, an issue we review de novo. See State v. Lopez, 2000-NMSC-003, ¶ 10, 128 N.M. 410, 993 P.2d 727 (stating that when a defendant alerts the trial court to a constitutional issue with a proper objection, he raises an issue of law, which is reviewed de novo); see also State v. Sandoval, 2004-NMCA-046, ¶ 6, 135 N.M. 420, 89 P.3d 92 (stating that constitutional issues are reviewed de novo); Estrada, 2001-NMCA-034, ¶ 30, 130 N.M. 358, 24 P.3d 793.

{10} During opening statement the prosecutor stated:

Detective . . . Bessette goes, reads the Defendant his rights, asks to talk to him. Defendant says he didn't [make] the signs, make any calls, he might have [written] the letters while he was drunk. More conversation comes out. Detective asks him, "Okay, your side, [do] you want to take a polygraph?" He says, "No."

Defense counsel objected and requested a mistrial, arguing that it was improper for the State to comment on Defendant's refusal to submit to a polygraph examination because the jury could inappropriately interpret his refusal as an acknowledgment of guilt. The prosecutor argued that he should be able to use Defendant's statement because it was not simply a refusal, but an admission of guilt because Defendant repeatedly stated that he would fail the polygraph examination. The district court sustained Defendant's objection and instructed the jury not to consider anything relating to a polygraph examination or to speculate as to what Defendant's responses might have been. It did not grant Defendant's request for a mistrial.

{11} A district court has discretion to admit polygraph examination results as evidence so long as "certain conditions, designed to ensure the accuracy and reliability of the test...