State v. Gutierrez

• Decision Date: 13 October 1992
• Docket Number: No. 13178,13178
• Citation: 114 N.M. 533,1992 NMCA 113,843 P.2d 376
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Guadalupe GUTIERREZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 376

843 P.2d 376

114 N.M. 533

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

No. 13178.

Court of Appeals of New Mexico.

Oct. 13, 1992.

Certiorari Denied Nov. 18, 1992.

[114 N.M. 533] Tom Udall, Atty. Gen., and William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Robert J. Jacobs, Taos, for defendant-appellant.

OPINION

PICKARD, Judge.

Defendant appeals his conviction for trafficking cocaine. He argues two basic issues. First, he contends that the trial court erred in failing to grant a mistrial or to promptly admonish the jury when the prosecutor said, "it's not true," after defense counsel questioned a witness about an alleged homicide conviction of a non-witness. Second, he contends that the trial court should have granted a directed verdict or given one of several tendered jury instructions on objective entrapment. Defendant also contends that cumulative error deprived him of a fair trial, but because we find no error, the doctrine of cumulative error does not apply. SeeState v. Martin, 101 N.M. 595, 600-01, 686 P.2d 937, 942-43 (1984). We affirm.

FACTS

This case involves some of the same cast of characters as State v. Sheetz, 113 N.M. 324, 825 P.2d 614 (Ct.App.1991). Milton Culbertson, an undercover detective, and Jerry Mabrey, a paid police informant, had met defendant at Sheetz's home. They tried unsuccessfully on two occasions to get defendant to obtain drugs for them. The reason that the attempts were unsuccessful was that defendant could not find a supplier. The evidence was that it did not take much effort to get defendant to cooperate. On the day of the offense charged, Culbertson gave defendant $220 with which to purchase cocaine, and defendant found a supplier.

Defendant purchased the cocaine from Roque Aranda. Detective Flint Knight testified that Aranda had worked as a police informant in the past, but that no payments had been made to Aranda for two years. Knight had no knowledge whether Aranda was working for any other government agency on the day of the offense.

Defendant met Culbertson and Mabrey after the purchase, and defendant gave Culbertson the cocaine. Defendant testified that Culbertson and Mabrey had told him that they would give him some of the cocaine he obtained for them. Defendant was a user and explained that this was why he participated in the transaction. When defendant brought back the cocaine to Culbertson, defendant asked for a portion of the drugs. Instead of drugs, he received $10. The evidence conflicted on whether the money was for gas or for drugs.

During the cross-examination of Culbertson, defense counsel asked whether Culbertson knew that Mabrey had been convicted of a homicide. The prosecutor objected to the question and additionally said, "it's not true." At a bench conference, the prosecutor revealed that he had no knowledge of such a conviction, and defense counsel revealed that he had no proof of it. Later, when it appeared that Mabrey had been convicted of voluntary manslaughter some seventeen years earlier, defendant asked to introduce that information into evidence. When the trial court refused on relevancy grounds, defendant asked for a mistrial. Instead, the trial court admonished the jury to disregard the prosecutor's statement.

PROSECUTORIAL MISCONDUCT

While acknowledging that there is nothing in the record indicating that the prosecutor's conduct was purposeful misconduct, defendant nonetheless contends that the prosecutor's comment was a comment on defense counsel's credibility, which prejudiced the jury against defendant. In addition, defendant appears to contend that the fact of the homicide conviction had some relevance and was therefore admissible. Defendant cites no authority for this additional contention. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984). For that reason and for the reason that a non-witness's seventeen-year-old conviction would be inadmissible in any event, see SCRA 1986, 11-607, -609, we do not consider the additional contention further.

Defendant's main contention is that Mabrey's record was necessary to show that defense counsel was truthful in asking the question about it and, thus, the trial court should have instructed the jury about it or granted a mistrial. We disagree. Whether error can be cured by an admonition is a question that must be answered according to the particular facts of a case. State v. Saavedra, 103 N.M. 282, 285, 705 P.2d 1133, 1136 (1985). The prosecutor's statement here was not purposeful misconduct. Cf. State v. Day, 91 N.M. 570, 573-74, 577 P.2d 878, 881-82 (Ct.App.) (when there is purposeful misconduct it is less likely that an admonition will cure the error), cert. denied, 91 N.M. 491, 576 P.2d 297 (1978). In this case, defendant admitted to committing the crime, and his entrapment defense was weak. The trial judge admonished the jury to disregard the prosecutor's remark about the homicide shortly after the judge learned of the fact of the conviction. Therefore, in the context of this case, we believe the trial court's admonition, given as quickly as the occasion demanded, was sufficient to cure any error otherwise occurring. See State v. Hoxsie, 101 N.M. 7, 10, 677 P.2d 620, 623 (1984) (no reasonable probability that prosecutor's comment contributed to the conviction) overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 731, 779 P.2d 99, 110 (1989); State v. Pace, 80 N.M. 364, 370, 456 P.2d 197, 203 (1969) (admonition given the next day was sufficient to cure error).

ENTRAPMENT

Defendant tendered two entrapment instructions. One involved circular transactions in which a defendant buys drugs from one police agent only to transfer them to another. The other involved law enforcement officers exceeding the bounds of proper investigation.

Objective entrapment occurs when law enforcement officers exceed the bounds of proper investigation. Sheetz, 113 N.M. at 326, 825 P.2d at 616 (quoting Baca v. State, 106 N.M. 338, 341, 742 P.2d 1043, 1046 (1987)). Sheetz teaches that law enforcement officers may exceed the bounds of proper investigation in either of two ways: (1) when they coax a defendant into a circular transaction, or (2) when they use unfair methods of persuasion which create a substantial risk that a crime would be committed by a reasonable person in the defendant's circumstances who was not otherwise ready and willing to commit the crime. See also Proposed Uniform Jury Instruction 14-5160 (Vol. 31, No. 22, SBB 535). Defendant's tendered jury instruction...