State v. Isiah

• Decision Date: 18 October 1989
• Docket Number: No. 17789,17789
• Citation: 109 N.M. 21,781 P.2d 293,1989 NMSC 63
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Jerry ISIAH, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 293

781 P.2d 293

109 N.M. 21

STATE of New Mexico, Plaintiff-Appellee, v. Jerry ISIAH, Defendant-Appellant.

No. 17789.

Supreme Court of New Mexico.

Oct. 18, 1989.

[109 N.M. 23] Hal Stratton, Atty. Gen., Margaret McLean, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Sheila Lewis, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

LARRABEE, Justice.

This is an appeal from a first-degree murder conviction, NMSA 1978, Section 30-2-1(A) (Repl.Pamp.1984), and attempted first-degree murder, NMSA 1978, Sections 30-2-1(A) and 30-28-1(A) (Repl.Pamp.1984). Defendant-appellant, Jerry Isiah, pleaded not guilty by reason of insanity. Defendant had killed Jackie Saunders and injured Yadira Salinas while travelling through Lordsburg, New Mexico on a bus from Arizona to Texas. Following a jury trial defendant was found guilty but mentally ill on both counts. He was sentenced to imprisonment for life on count one and to a period of nine years followed by two years of parole on count two. The sentences were to run concurrently. We affirm.

On appeal defendant raises the following issues: (1) the prosecutor's direct comment on defendant's exercise of his right to remain silent constituted fundamental error; (2) the trial court abused its discretion by barring probing voir dire questions on the issue of race; (3) two prospective jurors who could not be impartial should have been excused for cause; (4) the trial court abused its discretion in failing to grant a directed verdict on the first degree murder and attempted first degree murder charges; (5) the jury instructions when taken as a whole injected an intolerable quantum of confusion into the case; and, in the conclusion of the brief in chief, defendant contends that the errors in the trial in the aggregate denied him a fair trial.

The first three issues and the one on cumulative error in the conclusion of defendant's brief in chief were not included in defendant's docketing statement and no motion to amend the docketing statement was filed. We stated recently in Gallegos v. Citizens Insurance Agency, 108 N.M. 722, 779 P.2d 99 (1989), "While the docketing statement required under SCRA 1986, 12-208 remains mandatory for perfecting appeals to this Court, it is not jurisdictional. It is within our discretion to consider error preserved below and presented in appellant's brief after having been omitted from the docketing statement." Id. 108 N.M. at 731, 779 P.2d at 108. We will review each of these issues.

1. Comments on Defendant's Post-Arrest Silence

Defendant claims that on three occasions during the trial, the prosecutor specifically asked police officers who were involved in or observed Isiah's arrest whether he made a statement at the time. Defendant maintains that these questions contravened his fifth amendment right to remain silent and constituted fundamental error. ¹

On the first occasion, the prosecutor asked Officer Darnell if defendant made any statements during the booking procedure. Defense counsel objected. An extensive bench conference followed and the objection was sustained. Thereafter, the prosecutor rephrased the question, "Is there anything else that you observed about his demeanor during the booking?"

Later, when Deputy Schneider was describing the arrest of defendant, the following colloquy took place:

Prosecutor: As you were observing him and before and during arrest, can you describe this individual's demeanor?

Deputy Schneider: Very controlled and normal.

Prosecution: Do you recall him saying anything to you at that time?

Deputy Schneider: No, he did not.

Prosecution: Was he moving about? Standing still?

Deputy Schneider: He was walking when I first observed him, just in a normal pace toward me.

Defense counsel made no objection to these questions. During cross-examination, defense counsel inquired, "During this time, did the defendant say anything to you?" Schneider answered, "No, he did not."

The third instance occurred after Deputy Sheriff Kramer had fully described defendant's demeanor at the time of his arrest. The prosecutor asked, "Do you recall his saying anything at this time?" The witness responded, "No, sir." Again, defense counsel did not object and during cross-examination, he posed the question, "During that time, he didn't say anything to you, did he?" Deputy Kramer responded, "No, sir."

The State claims the inquiries into defendant's post-arrest silence did not directly implicate defendant's fifth amendment rights. The State posits that the purpose of these questions was to determine defendant's demeanor during the time of commission of the crimes and immediately thereafter; the state argues that his demeanor was highly probative of his mental condition, which was at issue because of his defenses of insanity, mental illness, and inability to form specific intent.

Improper comments on a defendant's fifth amendment right to remain silent violate the privilege against self-incrimination guaranteed by the fifth and fourteenth amendments. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); see State v. Molina, 101 N.M. 146, 147, 679 P.2d 814, 815 (1984); State v. Ramirez, 98 N.M. 268, 269, 648 P.2d 307, 308 (1982); State v. Lopez, 105 N.M. 538, 545, 734 P.2d 778, 785 (Ct.App.), cert. quashed, 105 N.M. 521, 734 P.2d 761 (1985), cert. denied, 479 U.S. 1092, 107 S.Ct. 1305, 94 L.Ed.2d 160 (1986). The fifth amendment provides in part: "No person shall be held to answer for a capital, or otherwise infamous crime, ... nor shall he be compelled in any criminal case to be a witness against himself, ... without due process of law...." U.S. Const. amend. V; see also New Mexico Const. art. II, Sec. 15. Upon arrest fifth amendment warnings, which include an individual's right to remain silent, must be given to the individual. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The protection of the fifth amendment forbids a prosecutor to comment on an accused's silence, and a judge to give jury instructions that such silence is evidence of guilt. Griffin, 380 U.S. at 615, 85 S.Ct. at 1233. Not all improper remarks, however, are harmful or require automatic reversal. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see United States v. Espinosa, 771 F.2d 1382 (10th Cir.), cert. denied, Foreman v. United States, 474 U.S. 1023, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985).

In State v. Clark, 108 N.M. 288, 772 P.2d 322 (1989), we adopted a test for evaluating allegedly improper prosecutorial comments on an accused's failure to testify. Id. at 302, 772 P.2d at 336. Because we see no difference in principle in the exercise by defendant of his constitutional right not to testify and his constitutional right to remain silent when taken into custody, we hold this test is applicable in both situations. To evaluate allegedly improper prosecutorial comments we must determine "whether 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 invocation of his fifth amendment rights to remain silent after arrest. See id. We must also look to the context in which the statement was made to determine the manifest intention that prompted the remarks, as well as the natural and necessary impact upon the jury. Id. at 293, 772 P.2d at 337.

Although it is generally error for the prosecutor to elicit the fact of a defendant's post-arrest silence, under the circumstances of the present case, the first remarks, if error, were harmless beyond a reasonable doubt. The questions posed by the prosecutor were intended to determine defendant's general demeanor and mental state at the time of the crimes. Because defendant's mental state and degree of culpability rather than his guilt were at issue, the jury would have taken these remarks within the context in which they were made. The fact that the trial court sustained the objection supports our conclusion that no harm or prejudice resulted. In addition, defendant never requested a curative instruction and the prosecutor rephrased the question. Based on these reasons, we believe that the prosecutor's remarks here were not such as to influence the jury to render a verdict on the grounds beyond the admissible evidence presented.

As to the second and third set of statements, the record reveals that not only were no objections made, but defendant's attorney elicited the same testimony on cross-examination. "Where the defendant fails to object and chooses instead to await the verdict, his silence is waiver of the improper comments by the prosecutor." Id. at 293, 772 P.2d at 337; cf. State v. Sanchez, 58 N.M. 77, 84, 265 P.2d 684, 688 (1954) (the right against self-incrimination is a fundamental right that may be waived or lost). The general rule bars review of issues not properly reserved at trial. See State v. Tafoya, 94 N.M. 762, 764, 617 P.2d 151, 153 (1980); State v. Ruffino, 94 N.M. 500, 502, 612 P.2d 1311, 1313 (1980). An exception to this general rule, however, applies in cases that involve fundamental error. Clark, 108 N.M. at 396, 772 P.2d at 330. The doctrine of fundamental error is always available to the court on behalf of the accused. Sanchez, 58 N.M. at 84, 265 P.2d at 688. "It should, however, be resorted to only under exceptional circumstances, 'if the innocence of the defendant appears indisputable, or if the question of his guilt is so doubtful that it would shock the conscience to permit the conviction to stand.' " State v. Gomez, 82 N.M. 333, 335, 481 P.2d 412, 414 (1971), (quoting State v. Torres, 78 N.M. 597, 435 P.2d 216 (Ct.App.1967).

We are not persuaded that these comments rise to the level of fundamental error. The remarks were not motivated by the prosecutor's intention to comment on defendant's right against self-incrimination, but were made to elicit...