State v. Little

• Decision Date: 17 April 2023
• Docket Number: A-1-CA-40282
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. DALE LITTLE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

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STATE OF NEW MEXICO, Plaintiff-Appellee, v. DALE LITTLE, Defendant-Appellant.

No. A-1-CA-40282

Court of Appeals of New Mexico

April 17, 2023

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY Angie K. Schneider District Court Judge

Raul Torrez, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

Bennett J. Baur, Chief Public Defender Caitlin C.M. Smith Assistant Appellate Defender Santa Fe, NM for Appellant

MEMORANDUM OPINION

ZACHARY A. IVES, Judge

{¶1} This matter was submitted to this Court on the brief in chief, pursuant to the Administrative Order for Appeals in Criminal Cases Involving the Law Offices of the Public Defender, From the Twelfth Judicial District Court in In re Pilot Project for Criminal Appeals, No. 2021-002, effective September 1, 2021. Following consideration of the brief in chief, this Court assigned this matter to Track 2 for additional briefing. Now having considered the brief in chief, answer brief, reply brief, and record proper, we affirm in part and reverse in part for the following reasons.

{¶2} Defendant was convicted of aggravated fleeing, driving while his license was suspended, failure to register or title a vehicle, and failure to carry proof of insurance. [1 RP 176-179, 189] Defendant appeals his convictions, raising three issues: (1) the district court erred by denying his motion for mistrial; (2) the district court should have dismissed the insurance violation once Defendant provided proof of insurance; and (3) the State presented insufficient evidence that Defendant was driving with a suspended license. [BIC 7-17] We affirm Defendant's convictions for aggravated fleeing and failure to register a vehicle, but reverse the remaining two convictions.

{¶3} Regarding Defendant's argument that the district court erred by denying his request for mistrial following the prosecutor's question during cross-examination of Defendant, we review a trial court's denial of a mistrial for an abuse of discretion. See State v. Salas, 2017-NMCA-057, ¶ 18, 400 P.3d 251; see also State v. Comitz, 2019-NMSC-011, ¶ 46, 443 P.3d 1130 ("An abuse of discretion occurs when the ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the trial court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason." (internal quotation marks and citation omitted)). "If no abuse of this discretion or prejudice to the defendant is evident, error does not result." State v. Gilbert, 1982-NMSC-137, ¶ 13, 99 N.M. 316, 657 P.2d 1165. "Because the trial court is better able to gauge the magnitude of objectionable comments, we afford it broad discretion in choosing the appropriate way to respond." State v. Torres, 2012-NMSC-016, ¶ 8, 279 P.3d 740.

{¶4} "If the district court determines that a prosecutor's comment or questioning of a witness is substantially likely to cause a miscarriage of justice, the judge should grant a defendant's motion for mistrial." Comitz, 2019-NMSC-011, ¶ 47 (internal quotation marks and citation omitted). Mistrial is reserved for instances where procedural safeguards like striking statements and offering curative instructions fail: "Only in the most exceptional circumstances should [appellate courts], with the limited perspective of a written record, determine that all the safeguards at the trial level have failed." State v. Sosa, 2009-NMSC-056, ¶ 25, 147 N.M. 351, 223 P.3d 348.

{¶5} Here, Defendant testified on his own behalf, and during a contentious crossexamination, the State followed one of Defendant's responses by asking, "Were you giving the officer as much trouble that [sic] you're giving me?" [BIC 6-8; AB 4] Defense counsel objected immediately, and the district court sustained the objection. [Id. ] At defense counsel's request, the district court instructed the jury to disregard the question. [Id. ] Defense counsel moved for a mistrial based on the comment, and the district court denied the motion. [BIC 7; AB 4] Defendant now argues that the district court erred by refusing to grant a mistrial. [AB 7]

{¶6} Under the circumstances, we conclude that the district court did not abuse its discretion in denying Defendant's motion for a mistrial. Assuming without deciding that the prosecutor's question was improper, the district court "effectively addressed the potential of prejudice" by sustaining Defendant's objection and giving a curative instruction directing the jury to disregard the question. See Comitz, 2019-NMSC-011, ¶ 52; see also Sosa, 2009-NMSC-056, ¶ 25 (noting that "a trial court can correct any impropriety by striking statements and offering curative instructions"). The weight of authority suggests that where, as here, a prompt objection is made and the district court issues a curative instruction, the district court does not abuse its discretion in denying a request for mistrial. See Comitz, 2019-NMSC-011, ¶ 52 (concluding that trial court did not abuse its discretion in denying the motion for mistrial where jury was instructed to disregard improper cross-examination question and its answer); Torres, 2012-NMSC-016, ¶ 9 (concluding that the prosecutor's inappropriate conduct did not constitute reversible error where comments were peripheral to the issue being litigated and the trial court took swift action to issue a "simple curative instruction to the jury"); State v. Smith, 2001-NMSC-004, ¶ 36, 130 N.M. 117, 19 P.3d 254 (upholding denial of motion for mistrial where single improper question was immediately struck, went unanswered, and was the subject of an immediate objection). This is particularly true considering the rhetorical nature of the comment and that it was peripheral to the matters being litigated. Cf. State v. Reynolds, 1990-NMCA-122, ¶¶ 12-13, 111 N.M. 263, 804 P.2d 1082 (concluding that the prosecutor's characterization of the defendant's statement as a "cock-and-bull story" presented no substantial likelihood of improper prejudice); State v. Martinez, 1983-NMSC-018, ¶ 4, 99 N.M. 353, 658 P.2d 428 (concluding that prosecutor's reference to the defendant as a "chola punk," though inappropriate, was not sufficient to warrant a new trial, given that the jury was instructed to disregard the statement).

{¶7} To the extent Defendant argues that reversal is warranted under the three factors set forth in Sosa, 2009-NMSC-056, ¶ 26, we disagree. Sosa articulated three factors for courts to use in reviewing questionable statements made during closing arguments: "(1) whether the statement invades some distinct constitutional protection; (2) whether the statement is isolated and brief, or repeated and pervasive; and (3) whether the statement is invited by the defense." Id. Even assuming these factors apply to circumstances such as this, where the challenged error came as a question during cross-examination rather than as a comment during closing arguments, Defendant is not entitled to reversal.

{¶8} As to the first factor, the prosecutor in this case did not invade a distinct constitutional protection by making an improper comment on Defendant's right to silence or his right against self-incrimination. See Torres, 2012-NMSC-016, ¶ 12; see, e.g., State v. Allen, 2000-NMSC-002, ¶ 27, 128 N.M. 482, 994 P.2d 728 (noting that a prosecutor's comments regarding a defendant's right to remain silent may constitute reversible error). With regard to the second factor, "our appellate courts have consistently upheld convictions where a prosecutor's impermissible comments are brief or isolated." Sosa, 2009-NMSC-056, ¶ 31. The impermissible comment here was a single question, and nothing in the record indicates the prosecutor asked any other similarly impermissible questions. Although Defendant claims the question was part of a pattern of tension between Defendant and the prosecutor [BIC 12], he cites no authority to suggest that a tense atmosphere during cross-examination is indicative of repeated or pervasive impropriety. See State v. Vigil-Giron, 2014-NMCA-069, ¶ 60, 327 P.3d 1129 ("[A]ppellate courts will not consider an issue if no authority is cited in support of the issue and that, given no cited authority, we assume no such authority exists."). Furthermore, Defendant does not identify where in the record he objected to the other questions posed during cross-examination that he implies were improper.

{¶9} Given that the prosecutor's single, isolated question did not present a substantial likelihood of improper prejudice and does not warrant a new trial under Sosa, we conclude that the prosecutor's question did not cause a miscarriage of justice. We therefore conclude the district court did not commit reversible error by denying Defendant's request for mistrial. See Torres, 2012-NMSC-016, ¶¶ 7-9, 15 (characterizing prosecutor's actions as "entirely improper" but concluding that "the trial court did not err in choosing to deny the motion [for mistrial] and to instead downplay the prosecutor's actions through a simple curative instruction to the jury").

{¶10} Defendant also contends that the evidence at trial was insufficient to support his conviction for driving with a suspended license because the State presented no "independent evidence that a crime occurred, i.e., that [Defendant's driver's license was suspended." [BIC 20] "We review de novo any claim that the [s]tate failed to prove the corpus delicti of the charged offense." State v. Martinez, 2021-NMSC...