State v. Heh
| Decision Date | 06 January 2021 |
| Docket Number | No. A-1-CA-37243,A-1-CA-37243 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. CHRISTOPHER HEH, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
Jane A. Bernstein, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} The opinion filed January 6, 2021, is hereby withdrawn, and this opinion is substituted in its place. A jury convicted Defendant Christopher Heh of possession of a stolen motor vehicle and possession of burglary tools. On appeal, Defendant advances several arguments: (1) the State improperly solicited testimony regarding his post-arrest silence; (2) there was insufficient foundation for the admission of surveillance video evidence; (3) his conviction for possession of burglary tools is not supported by sufficient evidence; (4) failure to instruct the jury on the definition of burglary constituted fundamental error; and (5) the district court engaged in improper commentary during voir dire. We hold that Defendant's Fifth Amendment right against self-incrimination was violated by the State's improper solicitation of testimony regarding his post-arrest silence, and that Defendant's conviction for possession of burglary tools is not supported by sufficient evidence. We therefore reverse and remand. Because we reverse on these grounds, we need not reach Defendant's remaining arguments. However, we exercise our discretion to address Defendant's argument regarding the improper admission of the surveillance video as it is likely to become an issue on remand.
{2} Albuquerque Police Department (APD) Officer Tavish Barnhill was dispatched to the scene of a single-vehicle car accident. When he arrived, he discovered a truck caught in the median dividing the roadway. Officer Barnhill learned that the truck had been reported stolen and that a witness identified Defendant as the possible driver of the truck. He detained Defendant on the scene.
{3} No individual at the scene witnessed Defendant operating the truck before it became caught in the median. However, Officer Barnhill obtained surveillance footage taken from a nearby gas station that appeared to show Defendant exiting the truck at the gas station and the truck rolling away towards the roadway shortly thereafter. A screwdriver was found in a cup holder in the truck. Defendant was transported to an APD substation for questioning by Detective David Taylor.
{4} A grand jury indicted Defendant for, among other charges,1 one count of possession of a stolen motor vehicle, contrary to NMSA 1978, Section 30-16D-4(A) (2009), and one count of possession of burglary tools, contrary to NMSA 1978, Section 30-16-5 (1963). At trial, both Officer Barnhill and Detective Taylor were called as witnesses by the State. The State introduced the surveillance video from the gas station through Officer Barnhill. Over Defendant's objections, the district court admitted the video into evidence, finding that Officer Barnhill could sufficiently authenticate the video, although he did not personally observe the events the video portrayed and was unfamiliar with the gas station's surveillance video system.2
{5} Detective Taylor was the final witness to testify. The State asked Detective Taylor a series of questions about what he did at the substation after transporting Defendant there. After asking Detective Taylor if Defendant was present at the substation and to identify Defendant, the prosecutor again asked him what occurred at the substation to which he replied, "I attempted to interview [Defendant]." Defense counsel asked to approach the bench, and the following discussion ensued:
{6} Defense counsel repeated his objection and expressed concern that any testimony bearing on Defendant's right not to give a statement would allow the jury to infer a consciousness of guilt. The district court acknowledged the prejudicial nature of the testimony sought, but reasoned it was a "balancing act" and did not want the jury to believe that Detective Taylor did not ask Defendant to speak with him. In an attempt to mitigate the prejudice, the district court suggested defense counsel inquire on cross examination whether Defendant was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The court then asked the parties to clarify the State's last question to Detective Taylor. Defense counsel, apparently confusing the State's last question to Detective Taylor with the question the district court said it would allow the State to ask, responded, This misstatement went uncorrected by the State.
{7} Contrary to the district court's instructions, the State did not limit its questioning of Detective Taylor and instead adopted the questions the court suggested defense counsel use on cross examination:
The jury convicted Defendant of both charges, and this appeal followed.
{8} Defendant argues that his Fifth Amendment right against self-incrimination was violated based on the State's questioning of Detective Taylor that elicited testimony that he was unable to obtain a statement from Defendant. The State argues that Defendant "invited" this testimony and that any resulting error was harmless. For the reasons that follow, we agree with Defendant.
{9} "No person . . . shall . . . be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V. The Fifth Amendment prohibits comments from the prosecution before the jury on the silence of the accused. See State v. Isiah, 1989-NMSC-063, ¶ 10, 109 N.M 21, 781 P.2d 293, overruled on other grounds by State v. Lucero, 1993-NMSC-064, ¶ 13, 116 N.M. 450, 863 P.2d 1071. "Evidence of a defendant's post[-]arrest silence is generally inadmissible because the probative value is substantially outweighed by the potential for unfair prejudice." State v. Garcia, 1994-NMCA-147, ¶ 7, 118 N.M. 773, 887 P.2d 767.
{10} "[W]e review de novo the legal question whether the prosecutor improperly commented on efendant's silence." State v. Foster, 1998-NMCA-163, ¶ 8, 126 N.M. 177, 967 P.2d 852. "[I]n cases in which a defendant has properly objected at trial, we review prosecutorial comment on silence to determine whether the error is harmless beyond a reasonable doubt." State v. Gutierrez, 2007-NMSC-033, ¶ 18, 142 N.M. 1, 162 P.3d 156. It is the State's burden to establish "that the constitutional error was harmless beyond a reasonable a doubt." Id. (internal quotation marks and citation omitted). Constitutional error can never be "harmless if there is a reasonable possibility that the evidence complained of might have contributed to the conviction." Id. (internal quotation marks and citation omitted).
{11} "Our focus must remain squarely on assessing the likely impact of the error on the jury's verdict." State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 32, 136 N.M. 309, 98 P.3d 699. "We take care not to focus our harmless error analysis exclusively on whether the trial record consisted of overwhelming evidence of the defendant's guilt, so as not to risk inadvertently concluding the constitutional error was harmless simply because there was substantial evidence to support the conviction." Gutierrez, 2007-NMSC-033, ¶ 18 (internal quotation marks and citation omitted). Consequently, "in a proper harmless error analysis, the appellate court defers to the jury verdict only when the [s]tate has established beyond a reasonable doubt that the jury verdict was not tainted by the constitutional error." Alvarez-Lopez, 2004-NMSC-030, ¶ 30. Finally, we "considerwhether the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be a comment on the accused's exercise of his or her right to remain silent." DeGraff, 2006-NMSC-011, ¶ 8 (internal quotation marks and citation omitted).
{12} We first examine the context in which the testimony concerning Defendant's silence was made. The State argues that because Detective Taylor was the eighth and final witness to appear after two days of evidence being presented, this testimony was harmless error given the amount of other evidence presented. We disagree. ...
To continue reading
Request your trial