State v. Montoya

• Decision Date: 16 August 1968
• Docket Number: No. 98,98
• Citation: 80 N.M. 64,451 P.2d 557,1968 NMCA 69
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Robert Thomas MONTOYA, Donald Deats, and Carlos Perez, Defendants-Appellants.
• Court: Court of Appeals of New Mexico

Page 557

451 P.2d 557

80 N.M. 64

STATE of New Mexico, Plaintiff-Appellee, v. Robert Thomas MONTOYA, Donald Deats, and Carlos Perez Defendants-Appellants.

No. 98.

Court of Appeals of New Mexico.

Aug. 16, 1968.

Writ of Certiorari Issued Sept. 12, 1968.

Fred M. Calkins, Jr., Matteucci, Franchini & Calkins, Albuquerque, for appellants

Boston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., Santa Fe., for appellee.

OPINION

ARMIJO, Judge.

This appeal concerns only Donald Deats who was found guilty by a jury of the crimes of aggravated burglary and larceny.

Two points are relied upon by appellant as grounds for reversal. The first point is:

'THE PROSECUTOR'S FINAL ARGUMENT TO THE JURY WAS INFLAMATORY AND PREJUDICIAL INASMUCH AS IT INTRODUCED FACTS BEYOND THE RECORD AND WAS CONTRARY TO THE COURT'S INSTRUCTION.'

The sufficiency of the evidence in support of the jury verdict, is not questioned.

Appellant recognizes that reasonable latitude should be allowed counsel during final argument. He claims, however, that the district attorney overstepped these bounds and thereby committed error.

We set out the comment claimed to be improper:

'* * * Why didn't Mr. Deats tell it when the officer talked to him? He showed a reluctance to testify.

'MR. CALKINS: Object. I will reserve it. I won't object to that point.

'THE COURT: All right. Proceed.

'MR. BRANDENBURG: Why didn't Mr. Deats tell the officer? If this is the way it happened, why didn't he tell them right then? If you were caught in a situation like Mr. Deats was caught in, and you are innocent, what is the first thing you are going to tell the police? Aren't you going to tell them exactly what you have been doing? Aren't you going to tell them about calling Mr. Farnum? Aren't you going to tell them the whole story so they can check it out? And, if it turns out to be true, are you going to languish in jail and say, 'Forget it, I don't want to talk to you?' I think you will consider this also.'

At the conclusion of opening argument by the state, the following motion was made by defendant:

'THE COURT: State your motion, counsel.

'MR. CALKINS: At this time, Your Honor, the Defendant, Donald Deats, moves that you grant him a mis-trial based upon comments made by counsel in the final argument, which I understood to be that after Mr. Deats had been apprehended that he failed to explain or to tell the police officers what had transpired on the night of September 28, 1966. We submit, Your Honor, that this type of comment is prohibited by the case of State versus Trimble, inasmuch as this case states that the defendant is never under any obligation to make any statement to the police officers, and as the Court knows, under no obligation to ever make any statement in court unless he decides to so do. We think that this comment certainly is prejudicial error; that it could not be taken care of by instruction by the Court. And, we therefore move for a mis-trial.

'THE COURT: The motion is overruled. I will instruct the jury, if they recollect that statement, I do not recollect it. They may. But, if the (sic) recollect it, none of the parties placed under arrest had any obligation to make any statement whatsoever to the police, and their failure to do so is no indication of their guilt.

'MR. CALKINS: In view of the Court's statement, I think now a fundamental error, I will ask the Court not to make any statement then.

'THE COURT: If you request it, I will not make it. Call the jury.'

We set forth the following facts developed at trial, pertinent to a discussion of this point. When the police arrived at the scene of an apparent burglary, appellant was standing in front of the burglarized building and was holding in his hand coins which were identified as having been stolen therefrom. A silk stocking was found in his trouser pocket and rubber gloves were also found on his person. He was armed with a pistol. Appellant testified in his own behalf and explained his presence at the scene as well as the other circumstances in an effort to exculpate himself. When the officer arrived at the scene appellant told the officer that he believed a burglary had been committed and appellant was then arrested after which he told the officer he had the wrong man.

Appellant relies on State v. Miller, 76 N.M. 62, 412 P.2d 240 (1966) as authority for his contention that it is reversible error for the state to comment on a defendant's failure to give information at the time of arrest.

State v. Miller, supra, is not controlling, since it dealt with comment of the prosecution concerning the defendant's failure to testify at trial. In the case before us appellant testified in his own behalf and the matter complained of related to occurrences at and prior to the time of appellant's arrest.

We recognize the right of a defendant to remain silent at the time of his arrest, however we decline to pass on the propriety of the state's comment to the jury concerning what was or was not said by appellant at and prior to his arrest, because the claim of error was not properly preserved. Appellant objected but later withdrew his objection to the argument and allowed the prosecution to continue and appellant then sought to renew his objection at the close of the state's argument. This we conclude resulted in an untimely objection. In order to preserve claimed error for review, an objection to improper closing argument, must be timely made. Compare State v. Reynolds, 79 N.M. 195, 441 P.2d 235 (Ct.App.1968). The burden is on the appellant to make his objections known to the court at the earliest time in order to afford the court the opportunity to rule on the matter before allowing the argument to continue. Holden v. United States, 388 F.2d 240 (1st Cir. 1968). The failure to make timely objection concerning alleged error because of erroneous remarks made during the trial, will prevent them from forming a basis for errors at the appellate level: State v. Evans, 88 Ariz. 364, 356 P.2d 1106 (1960); People v. Butcher, 174 Cal.App.2d 722, 345 P.2d 127 (1959); State v. Hernandez, 96 Ariz. 28, 391 P.2d 586 (1964) and Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967) cert. denied, 389 U.S. 888, 88 S.Ct. 124, 19 L.Ed.2d 188 (1967) rehearing denied 389 U.S. 945, 88 S.Ct. 299, 19 L.Ed.2d 303 (1967), unless they violated the substantial rights of the accused.

Although objection to the argument was not timely made, the trial court offered to instruct the jury to disregard the comment objected to by appellant but appellant asked the court not to. We conclude that the foregoing was not prejudicial on its face and that the appellant was not prejudiced thereby.

Appellant next claims that error was committed during rebuttal argument and he calls our attention to remarks made by the district attorney wherein he referred to appellant and the other parties arrested in connection with the offense as 'partner in crime' that he referred to appellant as 'professional' and to one of the other persons charged as a 'front man.'

Appellant testified to a prior conviction of burglary, and at the scene of the crimes he had on his person a firearm (which he admittedly had been carrying for several months) as well as other objects generally associated with persons who engage in illegal activity. These circumstances when considered together with the record as a whole, place the comment complained of within the range of legitimate closing argument. See State v. Anaya, 79 N.M. 43, 439 P.2d 561 (Ct.App.1968). An inference could be drawn from the testimony that appellant was a criminal, associated with criminals, and his associates engaged in activities classified as front men. Compare Sanders v. United States, 238 F.2d 145 (10th Cir. 1956). Appellant was not deprived of a fair trial because of such statements. They stated conclusions and inferences reasonably drawn from the facts and circumstances and were within the permissible range of argument.

Appellant also asserts error from the state's argument which relates in substance that the jury was referred to as the ultimate law enforcement agency and that the responsibility of law enforcement rested on their shoulders; that they had a responsibility to their neighbors, friends and other law abiding citizens and the result of their verdict would be indicative of the type of law enforcement they would want in Bernalillo County and with a corresponding degree and quality of police protection. No objection was made to any of these statements until after the close of the state's argument and we hold that by reason of appellant's failure to timely object thereto that he cannot now be heard to complain. Since the state was permitted to continue with its comment and because of appellant's failure to make timely objection and since we do not consider such remarks an abuse of the privilege of fair comment we are unable to disturb the judgment for such grounds.

This comment likewise falls within the permissible range of argument. See State v. King, 334 S.W.2d 34 (Mo.1960) where it was said:

'* * * the prosecution is generally permitted considerable latitude in arguing the necessity of law enforcement and the responsibility resting upon trial juries.'

See also State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, cert. denied, Laster v. State, 352 U.S. 936, 77 S.Ct. 237, 1 L.Ed.2d 167.

Other assertions presented under point one are found to be without merit.

Appellant's second claim of error is as follows:

'The trial court erred in failing to order a change of venue.'

Appellant's verified motion for change of venue was timely filed and alleged in substance the grounds prescribed by the statute for allowing such change, the applicable portion of which reads as follows:

' § 21--5--3, (N.M.S.A.1953 (Supp.1967).) Change of venue in civil and criminal cases.--A. The venue in all civil and criminal cases shall be changed, upon motion, to some county free from exception:

'* * *

'(2) when the party moving...