State v. Johnson

• Decision Date: 11 September 1984
• Docket Number: No. 7486,7486
• Citation: 692 P.2d 35,102 N.M. 110,1984 NMCA 94
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Gary Lee JOHNSON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 35

692 P.2d 35

102 N.M. 110

STATE of New Mexico, Plaintiff-Appellee, v. Gary Lee JOHNSON, Defendant-Appellant.

No. 7486.

Court of Appeals of New Mexico.

Sept. 11, 1984.

Paul Bardacke, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee

Daniel Rakes, Michael Slosberg, Albuquerque, for defendant-appellant.

OPINION

NEAL, Judge.

Defendant appeals his conviction of demanding or receiving a bribe and criminal sexual penetration in the third degree. He raises the following issues on appeal:

1. That his constitutional right to be free from self-incrimination was violated because the prosecutor made impermissible remarks concerning his failure to testify at trial;

2. That the trial court's refusal to merge Count I, demanding a bribe, and Count II, extortion with criminal sexual penetration, violated his constitutional right prohibiting double jeopardy; and

3. That the trial judge incorrectly excluded evidence of many prior criminal complaints filed by the complainant which would have been used to impeach her testimony.

Defendant stopped the victim for speeding on November 13, 1982. This was not the first time that defendant and the victim had had an interaction. Two or three weeks earlier defendant had stopped the victim for reckless driving. At that time the victim told the defendant that she would do anything to keep from being arrested. According to Sergeant White, who was present at the earlier stop of the victim by the defendant, the defendant said afterward that he would not mind taking the victim out. The victim repeated this statement on the night in question. According to defendant's statement, the victim was traveling fifty-one miles an hour in a thirty-mile an hour zone.

After the stop, defendant determined that the victim had been drinking. According to the victim, the defendant then said he would not take her to jail if she did him the favor of oral sex. He then followed the victim home. He used her telephone to report that his radio was out of order. The victim testified that the defendant told her to come out to the car, and made her "go down" on him.

Sergeant Sullivan, defendant's immediate supervisor at that time, testified that later that evening, the defendant came into Sambo's Restaurant. Sullivan asked the defendant where he had been. Defendant replied that he was out getting oral sex. Shortly after this remark, defendant said that the victim had propositioned him earlier that night at a car stop.

The victim testified that she stayed drunk for most of the weekend following the incident. On Monday she told a co-worker what had happened. The co-worker's husband is a police officer. She said she was afraid of the defendant and hoped her friend could advise her. The victim was then contacted by a captain on the Carlsbad Police Department. She gave him her story.

I. Comments on Defendant's Silence.

Defendant asserts a comment by the prosecutor during the state's closing argument constituted a forbidden reference to the accused's post-arrest silence. He also alleges that certain comments made during the argument were impermissible comments on his silence at trial.

The fifth amendment of the constitution made applicable to the states through the fourteenth amendment, states that an accused is not compelled to testify against himself. The United States Supreme Court held that a prosecutor is not permitted to comment on a defendant's silence. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Any comment for which the prosecutor is directly responsible constitutes fundamental error and requires reversal. State v. Baca, 89 N.M. 204, 549 P.2d 282 (1976). Failure to object at trial does not preclude review on appeal. State v. Ramirez, 98 N.M. 268, 648 P.2d 307 (1982).

The defendant's first contention has no merit and may be dismissed on factual grounds. Simply, there was no post-arrest silence. The defendant was informed of his right to remain silent at his arrest. He voluntarily made a statement to the investigating officers. The statement was admitted into evidence without objection. The prosecutor, in his closing argument, attacked various inconsistencies between the defendant's statement and other testimony heard at the trial. He noted that while the defendant called the dispatcher from the victim's house at 12:32 a.m., and claimed to have left her home about one and one-half minutes after the call, he did not arrive at his stop until fourteen minutes later, when the victim's house was only about three minutes away. He said:

Where are the other eight minutes? They are not there because he did not tell the police what happened after he left the house. He did not tell them about getting fellatio from [the victim]. That's where the other time is. That's why you know what happened. That's why we put this statement into evidence.

No objection was made to the comment at trial.

Taken in context it is clear that the prosecutor was remarking on the statement made to the police. At his arrest the defendant waived his right to remain silent and made an exculpatory statement. Therefore, there was no post-arrest silence to which the comment could have made reference.

As stated above, a prosecutor's comment on the defendant's exercise of his fifth amendment right to remain silent may constitute error requiring reversal. State v. Ramirez. However, the rule has no application where, as here, the defendant did not remain silent, and after receiving Miranda warnings, gave a statement. State v. Olguin, 88 N.M. 511, 542 P.2d 1201 (Ct.App.1975). The fact that a defendant omits details in his statement is certainly not the kind of silence which is constitutionally protected as the defendant does not remain silent with respect to the subject matter of his statement. Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). Even when a defendant gives a statement but refuses to answer specific questions, the answers provide a context which lends probative value to the silent responses; comment on those silent responses is not prohibited. United States v. Goldman, 563 F.2d 501 (1st Cir.1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1245, 55 L.Ed.2d 768 (1978). Therefore, the prosecutor's comment on the defendant's statement is not error.

The defendant argues that the following statement in the closing argument was a direct comment on the defendant's failure to testify at trial.

And that's what he did in his statement. He just left out what happened after the telephone call and added in a little bit of his own. But you can see by the times and the distances that more happened than the defendant was willing to tell you that; and the reason he wasn't willing to tell you what happened is he cannot tell you he received a sexual favor without admitting to everything.

The defense moved for a mistrial on the grounds that the statement concerned the defendant's failure to testify. The state argued that the statement was directed to the defendant's statement rather than his failure to testify. The court withheld a ruling at the time and never did announce a ruling on the motion. Again, it is clear from the remark itself and the context in which it was made that the prosecutor was referring to the defendant's statement. The quoted language begins with a reference to the statement, and the emphasized language again refers to the defendant's lack of explanation for a period of time during which the incident in question was said to have occurred.

The state may question the plausibility of an exculpatory statement. State v. Olguin. The jury, having listened to many minutes of argument addressed to the statement, would have understood the quoted remark in that context. The comment therefore was not directed at the defendant's refusal to testify and it was not error to refuse to direct a mistrial.

The next comment by the prosecutor which defendant argues was an improper comment on his exercise of his right not to testify occurred in the state's rebuttal argument. The defense had argued at length in closing argument that a policeman's life is difficult and dangerous. The prosecutor responded by accusing the defense of making an appeal to the sympathy and prejudice of the jury. He said, "they want to pull the shield of all good officers around this defendant." He then made the remark [complained of]: "You heard no testimony about this defendant's record as a police officer, whether he faced one killer or no killers, whether he did anything."

The defense objected. The court ruled that the statement was not a comment on the defendant's failure to testify. The context of the remark makes clear that the court was correct.

Defendant's closing argument stressed the dangers faced by police officers in the line of duty. The prosecutor responded that no testimony had been heard regarding the defendant's police career. Such testimony could have been supplied by means other than the defendant's own testimony. Therefore, the statement could not reasonably be perceived as a comment on the defendant's failure to take the stand.

The final statement complained of is: "He never said one word about why the victim didn't get arrested for that because its just no reason other than the officer received this favor."

Defendant did not object to the comment but argues that this statement combined with the others constitute fundamental error. The context of the comment again indicates that it refers to the defendant's exculpatory statement to the police. The prosecutor referred to the statement that the victim was driving well above the speed limit and was ".15", referring to an estimated level of alcohol in the blood sufficient to arrest, and contrasted that with his failure to arrest her or offer an explanation why he did not arrest her. The quoted statement was not directed at the defendant's silence at trial. Therefore none of the comments complained of were...