State v. Gutierrez

• Decision Date: 13 June 2007
• Docket Number: No. 29,286.,29,286.
• Citation: 162 P.3d 156,2007 NMSC 033
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Peter P. GUTIERREZ, Defendant-Petitioner.
• Court: New Mexico Supreme Court

162 P.3d 156

2007 NMSC 033

STATE of New Mexico, Plaintiff-Respondent, v. Peter P. GUTIERREZ, Defendant-Petitioner.

No. 29,286.

Supreme Court of New Mexico.

June 13, 2007.

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

Gary K. King, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

SERNA, Justice.

{1} Peter Gutierrez ("Defendant") was charged with intimidation of a witness, contrary to NMSA 1978, § 30-24-3(A) (1997); aggravated stalking, contrary to NMSA 1978, § 30-3A-3.1(A) (1997); criminal damage to property over $1,000, contrary to NMSA 1978, § 30-15-1 (1963); telephone harassment, contrary to NMSA 1978, § 30-20-12 (1967); and evading and eluding an officer, contrary to NMSA 1978, § 30-22-1(B) (1981). Defendant was found guilty on all counts. Defendant appealed his convictions on two grounds, claiming (i) the prosecutor's comment on Defendant's refusal to submit to a polygraph examination during his opening statement constituted reversible error and (ii) insufficient evidence supported his conviction for evading or eluding an officer. The Court of Appeals concluded that while the prosecutor's comment was improper, it was harmless beyond a reasonable doubt. State v. Gutierrez, 2005-NMCA-093, ¶ 1, 138 N.M. 147, 117 P.3d 953. In addition, the Court of Appeals held that substantial evidence supported Defendant's conviction for evading and eluding an officer. Id.

{2} For the reasons that follow, we hold that the prosecutor's comment was not harmless error and thus reverse the Court of Appeals on that issue, vacate Defendant's convictions, and remand for a new trial. In addition, we hold that substantial evidence supports Defendant's conviction for evading and eluding an officer and thus affirm the Court of Appeals on that issue. Accordingly, Defendant may be retried on all counts.

I. FACTS

{3} Defendant and Victim dated on and off for approximately five years beginning in 1997. It was a rocky relationship, and in February 2000, Victim obtained a restraining order against Defendant. However, Defendant and Victim were still periodically together, including when Defendant's mother died in February 2002. Despite the restraining order, Victim alleged that Defendant engaged in a variety of jilted lover conduct, including harassing phone calls and letters. In addition, Defendant placed harassing signs around the neighborhood, including in Victim's father's yard. Indeed, even after Defendant was arrested and in jail, Defendant phoned Victim and said, "You're dead."

{4} The particular incidents resulting in the charges against Defendant occurred while Victim was staying at a motel. Defendant phoned her at the motel and said, "Hello, whore." The next morning, May 2, 2002, Victim found that her car had been "keyed," with the word "whore" scratched into it. Victim drove from the motel to the police station and filed a report on the incident. Based on Victim's report, Officer Russell Gould of the Clovis Police Department was sent that same day to Victim's residence to investigate her allegations. While Officer Gould was making his report, Victim received a call from Defendant on her cell phone. Victim handed the phone to Officer Gould, after confirming that it was indeed Defendant calling, and Officer Gould heard the male caller say, "What do you think about last night?" several times, presumably in reference to Victim's stay at the motel. Officer Gould handed the phone back to Victim, so that she could try to get Defendant to say more, but, by the time she picked up, Defendant had hung up.

{5} Several hours after leaving Victim's house, Officer Gould was sent back because she reported to police that Defendant had called again and had driven by her house. Based on Victim's description of the vehicle, Officer Gould found the truck parked outside a house. Officer Gould was in police uniform and driving his patrol car. He stepped out of his car and told a man who walked out of the truck to stop because he needed to talk to him, in order to identify that the man was indeed Defendant. The man was walking into the house and said that he needed to use the bathroom. Officer Gould followed the man into the house, and as soon as the man saw him, he proceeded to walk out the back door. Once outside, the man looked at Officer Gould and then started running. Officer Gould gave chase, but the man had already jumped the fence. Officer Gould did not order the man to stop for the purpose of arresting him. Rather, he radioed dispatch that he was in a foot pursuit. By the time Officer Gould was off the radio, a second officer had arrived and was waiting for the man. After a brief struggle, the officers took the man, who was identified as Defendant, into custody.

{6} Detective Keith Bessette, who had previously questioned both Victim and Defendant, testified at trial that Defendant had denied making the signs and the phone calls but said that he might have written some letters when he was drunk. Detective Bessette spoke with Defendant again while he was in custody and testified that Defendant "kind of looked at me in a smug way, and in a joking manner, I said, `Yeah, yeah, I know you didn't do it' and he told me `I never said I didn't do it.'" Defendant also testified and admitted that although he might have written some letters to Victim while drunk, he denied having written the letters in question.

{7} At trial, the prosecutor made an opening statement, in which he referred to Defendant's refusal to submit to a polygraph test. Defendant immediately moved for a mistrial, arguing that the prosecutor's statement was an impermissible comment on silence that was highly prejudicial to Defendant, as the jury might inappropriately interpret his refusal as an acknowledgment of guilt. In a bench conference, the district judge noted that the jury might view the Defendant's refusal as relevant to Defendant's credibility and probative of guilt and admonished the prosecutor to refrain from any further reference to polygraph evidence. Nevertheless, the judge denied Defendant's motion, stating that he believed any prejudice to Defendant could be overcome by a curative instruction. The judge, therefore, instructed the jury to ignore the prosecutor's comment.

{8} At the close of Defendant's case, he moved for a directed verdict on the evading and eluding an officer charge. See § 30-22-1(B). Defendant argued that the State failed to present sufficient evidence to convict him of the charge because Officer Gould was only in the investigative stage when he approached Defendant and was not about to apprehend or arrest him. The district court denied the motion, finding there were facts from which the jury could infer that Defendant was aware of the attempt to apprehend him and that he chose to flee instead. Defendant was found guilty on all counts.

{9} Defendant appealed his convictions, claiming two reversible errors: (i) that the prosecutor's comment regarding Defendant's refusal to submit to a polygraph test was an impermissible comment on silence which merited reversal and (ii) that Defendant was entitled to a directed verdict on the evading and eluding an officer charge due to the State's failure to put forth sufficient evidence. Gutierrez, 2005-NMCA-093, ¶ 1, 138 N.M. 147, 117 P.3d 953. The Court of Appeals held that while the prosecutor's comment was improper, it was harmless beyond a reasonable doubt. Id. ¶¶ 16-17. In addition, the Court of Appeals held that substantial evidence supported Defendant's conviction for evading and eluding an officer. Id. ¶ 21. Therefore, the Court of Appeals affirmed all of Defendant's convictions. Id. ¶ 22.

II. PROSECUTOR'S COMMENT ON DEFENDANT'S REFUSAL TO SUBMIT TO A POLYGRAPH TEST WAS AN IMPROPER COMMENT ON SILENCE AND CONSTITUTES REVERSIBLE ERROR

{10} The first issue with which we are presented is whether the prosecutor's reference in opening statement to Defendant's refusal to submit to a polygraph test was an impermissible comment on silence constituting reversible error. Where, as here, the facts are undisputed, we review this legal question, which raises substantial questions of constitutional law, de novo. State v. DeGraff, 2006-NMSC-011, ¶ 6, 139 N.M. 211, 131 P.3d 61; State v. Foster, 1998-NMCA-163, ¶ 8, 126 N.M. 177, 967 P.2d 852.

{11} We begin our analysis by emphasizing "the general rule forbidding a prosecutor from commenting on a defendant's silence or introducing evidence of silence." Foster, 1998-NMCA-163, ¶ 9, 126 N.M. 177, 967 P.2d 852. Following clear guidance from the United States Supreme Court, we have long held that prosecutorial comment on a defendant's exercise of his or her right to remain silent violates a defendant's rights under the Fifth Amendment to the federal Constitution, as applied to the states through the Fourteenth Amendment. See State v. Miller, 76 N.M. 62, 71-72, 412 P.2d 240, 245-246 (1966) (citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Tehan v. United States, ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966)). In Foster, our Court of Appeals explained at length the "three independent underpinnings for the general rule: (1) the constitutional privilege against self-incrimination, (2) constitutional due process, and (3) the rules of evidence barring irrelevant evidence . . . and evidence whose probative value is substantially outweighed by the danger of unfair prejudice." 1998-NMCA-163, ¶ 9, 126 N.M. 177, 967 P.2d 852 (internal citations omitted). The first, the constitutional privilege against self-incrimination, prohibits prosecutorial comment on a defendant's failure to testify at trial. Id. ¶¶ 9, 10. Second, due process forbids prosecutorial comment on a defendant's post-Miranda silence for the purpose of incriminating the defendant. Id. ¶¶ 11, 14; see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct....