State v. Molina
| Decision Date | 29 March 1984 |
| Docket Number | No. 15269,15269 |
| Citation | 101 N.M. 146,679 P.2d 814,1984 NMSC 38 |
| Parties | STATE of New Mexico, Petitioner, v. Nick MOLINA, Respondent. |
| Court | New Mexico Supreme Court |
This is a criminal action which was brought in Valencia County. Nick Molina (respondent) was charged with and convicted of possession with intent to distribute heroin. Respondent appealed the conviction to the Court of Appeals on two issues: (1) whether the trial court should have suppressed evidence seized pursuant to a nighttime search warrant; and (2) whether the prosecutor violated respondent's right to remain silent while cross-examining him during trial. The Court of Appeals reversed, finding that questions by the prosecutor violated respondent's fifth amendment right to remain silent. We granted the State's petition for certiorari. We reverse on the issue of violation of the right to remain silent and affirm on the issue relating to the search warrant.
On May 19, 1982, pursuant to information gained from surveillance and from a confidential informant, police went to the magistrate judge with an affidavit for issuance of a nighttime search warrant. After execution of the warrant at 11:35 p.m., police officers seized six foil packets containing heroin, $83.00 in cash, and a variety of drug paraphernalia from the respondent's person and from his home.
Respondent moved to suppress all evidence seized under the warrant on the grounds that a nighttime search was improper and illegal. The trial court denied the motion. On appeal, the Court of Appeals held that reasonable cause existed for a nighttime search and that facts establishing reasonable cause appeared on the face of the affidavit, even though this was not required. Cf. State v. Hausler, 679 P.2d 811 (N.M.1984).
Respondent next argues that the trial court committed reversible error in allowing the prosecutor to ask questions pertaining to respondent's post-arrest silence. On cross-examination, the following exchange took place:
Respondent did not object to the questions at the time of trial and did not raise the issue in his docketing statement. Therefore, respondent must rely upon the plain error doctrine to support this issue on appeal.
Improper comment on respondent's fifth amendment right to remain silent may constitute plain error which will support a reversal. NMSA 1978, Evid.R. 103(d) (Repl.Pamp.1983); State v. Ramirez, 98 N.M. 268, 648 P.2d 307 (1982); State v. Lara, 88 N.M. 233, 539 P.2d 623 (Ct.App.1975). It is not true, however, "that any comment on the defendant's silence must result in a mistrial, or a reversal of the defendant's conviction." State v. Baca, 89 N.M. 204, 205, 549 P.2d 282, 283 (1976). Baca limits the plain error rule to situations, "where the prosecutor is directly responsible for the improper comment on the defendant's silence." Id. The record shows that the...
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State v. Wildgrube
...any comment on the defendant's silence must result in a mistrial, or a reversal of the defendant's conviction.'" State v. Molina, 101 N.M. 146, 147, 679 P.2d 814, 815 (1984) (quoting Baca, 89 N.M. at 205, 549 P.2d at {24} In this case, the exchange between the prosecutor and Lt. Walker occu......
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State v. Isiah
...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 (C......
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State v. Hennessy
...686 P.2d at 941-42; Ramirez, 98 N.M. at 269, 648 P.2d at 308; Romero, 94 N.M. at 300-302, 609 P.2d at 1256-1258. State v. Molina, 101 N.M. 146, 679 P.2d 814 (1984), cited by the state, is not to the contrary. In Molina, the prosecutor's comments were invited, and there was some question as ......
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...closing arguments, to statements and facts in the evidence, together with reasonable inferences deductible therefrom. State v. Molina, 101 N.M. 146, 679 P.2d 814 (1984); State v. Herrera, 84 N.M. 46, 499 P.2d 364 (Ct.App.1972). When defendant's own testimony directly alluded to his official......