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 |
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:
(Our emphasis.)
Defendant objected that the argument was improper and moved for a mistrial which was denied.
The assistant district attorney continued:
'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 ...
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