State v. Hennessy

• Court: Court of Appeals of New Mexico
• Writing for the Court: PICKARD
• Citation: State v. Hennessy, 114 N.M. 283, 837 P.2d 1366, 1992 NMCA 69 (N.M. App. 1992)
• Decision Date: 23 June 1992
• Docket Number: No. 12847,12847
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. James HENNESSY, Defendant-Appellant.

Page 1366

837 P.2d 1366

114 N.M. 283

STATE of New Mexico, Plaintiff-Appellee, v. James HENNESSY, Defendant-Appellant.

No. 12847.

Court of Appeals of New Mexico.

June 23, 1992.

Certiorari Denied Aug. 3, 1992.

[114 N.M. 283] Tom Udall, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Mark H. Donatelli, David Henderson, Rothstein, Bennett, Donatelli, Hughes &

[114 N.M. 284] Dahlstrom, Santa Fe, for defendant-appellant.

OPINION

PICKARD, Judge.

Defendant appeals his conviction for trafficking cocaine. He contends that (1) there was not substantial evidence to support his conviction, (2) his trial should have been severed from his codefendant's, and (3) the prosecutor impermissibly commented on his postarrest silence. Because we reverse and remand for a new trial on the issue of comment on silence, we also address the claim of insufficiency of the evidence. See State v. Santillanes, 109 N.M. 781, 790 P.2d 1062 (Ct.App.1990) (court addresses substantial evidence issue because that would afford greater relief).

FACTS

Law enforcement officers obtained a warrant to search codefendant's (Montoya's) home. The affidavit in support of the search warrant contained hearsay statements from a confidential informant (CI) stating that (1) Montoya would receive a package of cocaine from Los Angeles on December 1, 1989; (2) within the previous twenty-four hours the CI had seen approximately two ounces of cocaine at Montoya's home; (3) the CI had personally witnessed three drug sales by Montoya within the past twenty-four hours; (4) the CI knew Montoya sold cocaine from his home; (5) the CI was familiar with the appearance of cocaine; and (6) the CI had purchased cocaine from Montoya in the past.

When the officers arrived to serve the warrant, they persuaded Montoya to leave the house before informing him of the purpose of their visit. Two officers entered the house and searched for other occupants. In a back bedroom, one officer observed a trunk with a scale on top of it. On top of the scale were a plastic bag with a white powdery substance and some paper "bindles" used to package cocaine. The officer testified that he saw defendant sitting on a box facing the scale and holding the weighing tray from the scale in his hand. Defendant and Montoya were placed under arrest. A further search of the house revealed weapons, more bindles, chemicals used to cut cocaine, and other cocaine paraphernalia. The paraphernalia and a pistol were found in Montoya's bedroom, and Montoya acknowledged ownership of those items.

Defendant's argument at trial was that he was only at the house to purchase a small quantity of cocaine for personal use, and that Montoya was the dealer. He testified that Montoya left the room to answer the door, that he did not touch the cocaine while he waited for Montoya to return, and that he was not holding the scale tray when the officers entered the room.

SUBSTANTIAL EVIDENCE

On appeal, defendant argues that there was insufficient evidence that he had control over the cocaine, and therefore insufficient evidence that he possessed the cocaine with the intent to distribute. We disagree.

Defendant's presence in close proximity to the cocaine is a circumstance the jury could consider when deciding whether defendant had control of the substance. See United States v. Kincade, 714 F.2d 1064 (11th Cir.1983). In addition, the officer's testimony that defendant was holding the weighing tray of the scale in his hand supports the jury's determination regarding this issue. Cf. Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986) (when the defendant was present in a room containing drugs and paraphernalia and the defendant had a gun, the evidence was sufficient to show control over the contraband). Finally, the presence of the bindles and scale is substantial evidence of an intent to distribute the cocaine. On appeal, we view the evidence in the light most favorable to the verdict, indulging all inferences in favor of that verdict. State v. Sutphin, 107 N.M. 126, 753 P.2d 1314 (1988). The jury was not required to credit defendant's testimony. See State v. Vigil, 87 N.M. 345, 350, 533 P.2d 578, 583 (1975). We hold that substantial evidence supported the verdict in this case.

COMMENT ON SILENCE

After defendant was arrested and given his Miranda warnings, he told the arresting officers he was just at Montoya's house to borrow some tools. At trial, he testified that he was actually there to purchase cocaine for personal consumption. During the state's cross-examination of defendant, the prosecutor focused on defendant's failure to contact the police after his initial encounter with them in order to correct his original postarrest statement. This section of the prosecutor's cross-examination proceeded as follows:

Q.: Did you ever change your story to the police?

A.: No, sir.

Q.: You never went back and said, "Look, guys, I lied to you, I was really there to pick up ...

A.: No, sir.

Q.: ... pick up some [inaudible]?" Is there some reason for that?

A.: I was scared.

Q.: Oh. I can understand that, at the time. What about the preceding, or the next nine months?

A.: Well, they never contacted me.

Q.: Their phone number is rather available, isn't it?

A.: Yes, sir, it is.

Q.: Did you ever contact them?

A.: No, sir.

Q.: Is there some reason you didn't contact them and tell them the truth?

A.: I--I just.... After I got arrested, I was just scared. You know, all I wanted to do was get an attorney and find out what my rights were, like what was going to happen to me.

Q.: Okay. But you never went back and told them the truth, did you?

A.: No, sir.

Q.: Or, you never went back and told them what you told us today, did you?

A.: No, sir.

Defendant did not object to any of these questions. However, apparently attempting to mitigate their effect, defense counsel briefly referred to the questions on redirect examination and elicited the fact that after defendant's arrest, she had counseled him "not to say anything to anybody about the case." In closing argument, the prosecutor alluded to his cross-examination and defendant's testimony on redirect examination, stating that defendant "never bothered" to tell the police the truth and that his excuse was that his lawyer told him not to tell the truth. He then remarked that defendant was doing the same thing at trial--not telling the truth. Defendant did not object to these comments.

Defendant maintains that the above questions and arguments were comments on his right to remain silent because they implied that he had a duty to return to the police and correct his original, admittedly false statement. Because neither the questions nor the closing remarks were objected to, defendant asks us to review the issue either as one of plain error or under the doctrine of fundamental error.

Before turning to the merits of defendant's claim, we briefly review the development of case law in this area. Twenty-seven years ago, the New Mexico Supreme Court adopted the holding of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and acknowledged that prosecutorial comment on a defendant's right to remain silent at trial constitutes reversible error. State v. Miller, 76 N.M. 62, 412 P.2d 240 (1966). Following Griffin, the United States Supreme Court decided United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), reversing the defendants' convictions on the basis of prosecutorial questions pertaining to the defendants' postarrest silence. Prosecutors in this state have been on notice for more than fifteen years that such comments are improper, as this court and our supreme court have repeatedly disapproved such tactics and have held that prosecutorial comments on the right to remain silent warrant reversal, whether objected to or not. See State v. Lara, 88 N.M. 233, 235, 539 P.2d 623, 625 (Ct.App.1975) (following Hale), limited by State v. Baca, 89 N.M. 204, 549 P.2d 282 (1976) (distinguishing between comments directly attributable to the prosecutor and comments by witnesses during their testimony); see also, e.g., State v. Martin, 101 N.M. 595, 686 P.2d 937 (1984); State v. Ramirez, 98 N.M. 268, 648 P.2d 307 (1982); State v. Callaway, 92 N.M. 80, 582 P.2d 1293 (1978); State v. Lopez, 105 N.M. 538, 734 P.2d 778 (Ct.App.1986), cert. denied, 479 U.S. 1092, 107 S.Ct. 1305, 94 L.Ed.2d 160 (1987); State v. Romero, 94 N.M. 300, 609 P.2d 1256 (Ct.App.1980). Our sense of these cases is that the remedy of automatic reversal regardless of objection is designed, in significant part, as a prophylactic measure to deter prosecutors from obtaining convictions by unfair tactics. A review of cases addressing claims of prosecutorial misconduct, including comments on silence and other blatant misconduct such as reference to inadmissible, highly prejudicial matters, reveals that serious misconduct has been reviewed variously as a claim of (1) plain error, (2) deprivation of the right to fair trial, and (3) fundamental error. See id.; see also, e.g., State v. Wilson, 109 N.M. 541, 787 P.2d 821 (1990); State v. Isiah, 109 N.M. 21, 781 P.2d 293 (1989); State v. Clark, 108 N.M. 288, 772 P.2d 322 (1989), cert. denied, 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989), overruled on other grounds by State v. Henderson, 109 N.M. 655, 789 P.2d 603 (1990); State v. Taylor, 104 N.M. 88, 717 P.2d 64 (Ct.App.1986); State v. Day, 91 N.M. 570, 577 P.2d 878 (Ct.App.1978); State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974).

Because we believe some confusion has arisen concerning the continued vitality and application of the plain error doctrine, we address defendant's request for plain error review first. Claims of plain error developed as a result of the adoption of New Mexico Rule of Evidence 11-103(D), which states, "Nothing in this rule precludes taking notice of plain errors...