State v. Leyba, 2041

• Decision Date: 27 January 1976
• Docket Number: No. 2041,2041
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Toni LEYBA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 876

546 P.2d 876

89 N.M. 28

STATE of New Mexico, Plaintiff-Appellee, v. Toni LEYBA, Defendant-Appellant.

No. 2041.

Court of Appeals of New Mexico.

Jan. 27, 1976.

Certiorari Denied March 1, 1976.

[89 NM 28] Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Sarah M. Singleton, Assistant Appellate Defender, Santa Fe, for appellant.

Toney Anaya, Atty. Gen. F. Scott MacGillivray, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION

WOOD, Chief Judge.

Convicted of receiving stolen property, defendant appeals. We reverse because of prosecutor misconduct in closing argument to the jury.

The stolen property was a necklace. There was evidence that defendant stated she did not remember how she got the necklace or how long she had it, but that she had had it for a long time. An issue at trial was whether defendant received or retained the necklace 'knowing that it has been stolen or believing it has been stolen'. Section 40A--16--11(A), N.M.S.A.1953 (2d Repl.Vol. 6, Supp.1975).

The assistant district attorney argued:

'His (defense counsel's) witnesses say she wore it very openly in public and it was also loaned to a friend and remarkably enough it was done before the necklace was even stolen. Let's go into this just a little bit more. That her possession of the necklace, her ownership was so open and so honest, why had not the defense case or witnesses told you today in Court where she got it. They have had all of this time to show where it truthfully came from.' (Our emphasis.)

Defendant objected that the argument was improper and moved for a mistrial which was denied.

The assistant district attorney continued:

'What have they shown as to the true ownership of the necklace, where it came from, where it was bought from, who sold it, absolutely nothing has been shown. The State has the burden of proof beyond a reasonable doubt and I will in no way, shape or form shirk from that duty. (Our emphasis.)

'Obviously this is not an open and shut case. I ask you, ladies and gentlemen, how you prove what a person believes or knows about something that he or she knows is wrong. The persons receiving stolen property proclaim their guilt in public in front of witnesses? Of course, not . . ..

'She is going to go into a cold cell . . . but on the other hand, she has no explanation that might help her get out of jail, nothing.' (Our emphasis.)

The last emphasized remark of the prosecutor was a comment on defendant's failure to testify. State v. Jones, 80 N.M. 753, 461 P.2d 235 (Ct.App.1969). Defendant did not object to this comment. The New Mexico rule is that unless objection was made to the improper comment, the comment will not be reviewed. State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974). A question arises whether the New Mexico rule remains valid since the decision of the United States Supreme Court in United States v. Hale, 422 U.S. 171, 45 L.Ed.2d 99, 95 S.Ct. 2133 (1975). See State v. Lara, 88 N.M. 233, 539 P.2d 623 (Ct.App.1975). We do not consider this question because we do not consider the improper comment on defendant's silence as an independent point for review. We do consider the improper comment in relation to the other comments of the prosecutor, quoted above.

The first two emphasized remarks of the prosecutor are directed to the failure of the defense to call witnesses to explain defendant's possession of the necklace. The argument acknowledges that the State had the burden of proof but, nevertheless, argued that defendant had failed to make an explanation. There is agreement that remarks of this type are improper. They suggest that a defendant has some duty to produce witnesses or has some burden of proof. See State v. Caron, 218 N.W.2d 197 (Minn.1974). The decisions, however, differ as to whether the improper remarks amount to reversible error.

In People v. Mirenda, 23 N.Y.2d 439, 297 N.Y.S.2d 532, 245 N.E.2d 194 (1969) the prosecutor made repeated references to defendant's failure to produce witnesses. The court consistently sustained objections to the prosecutor's statements and admonished the jury that the defense was not required to call witnesses. Because of the repeated misconduct, the conviction was reversed. In People v. Thomas, 22 Ill.App.3d 854, 318 N.E.2d 342 (1974) the state commented on defendant's failure to produce alibi witnesses. It is not clear whether the defense objected to the comment. The defense did object to the state calling defendant a criminal when the defendant had no prior record and had not presented his defense when the remark was made. The Illinois court held that the comment on failure to produce witnesses, when combined with the reference to ...