State v. Nichols
| Decision Date | 07 April 1986 |
| Docket Number | No. 15859,15859 |
| Citation | 1986 NMSC 23,104 N.M. 74,717 P.2d 50 |
| Parties | STATE of New Mexico, Petitioner-Appellee, v. Russell Earl NICHOLS, Respondent-Appellant. |
| Court | New Mexico Supreme Court |
The defendant-appellant, Russell Earl Nichols (defendant), was charged by a grand jury indictment with an open charge of murder, or in the alternative with felony murder, in the death of Michael Stickle; by the same indictment he was charged with armed robbery in the same incident which gave rise to the murder charge, with conspiracy to commit armed robbery and with the crime of tampering with evidence. After a trial by jury, defendant was convicted of first degree (felony) murder, armed robbery, and tampering with evidence. By a special finding made at his sentencing hearing it was determined that this was defendant's second conviction for armed robbery. Defendant was sentenced to life imprisonment for the murder conviction, eighteen years for the armed robbery, and eighteen months for tampering with evidence. All sentences imposed are to run consecutively. Defendant appeals the convictions and the eighteen-year sentence for armed robbery. We affirm.
Defendant challenges his convictions on the basis that testimony at trial regarding his prior criminal convictions was grounds for a mistrial. His first contention is that the testimony constituted prejudicial error.
Prior to any trial testimony, the trial court heard defendant's motion in limine which sought to keep out all evidence of his prior convictions. Defense counsel argued that the potentially prejudicial effect of these convictions outweighed any evidentiary benefit they might have. The State responded that it would not be necessary to bring out these convictions. The trial court instructed the prosecution to avoid any mention of defendant's criminal past without first holding a bench conference on the subject.
On direct examination during the trial one of the State's key witnesses made a comment, unsolicited by the prosecution, that defendant was acquainted with "inmates." Defense counsel objected and moved for a mistrial on the ground that this was error prejudicial to defendant's right to a fair trial. The trial court denied a mistrial but offered to give a cautionary instruction to the jury, which defendant declined. Later in the trial another witness for the State referred to defendant's recent release from jail. Defense counsel timely objected but did not request a mistrial.
After the State rested its case, defense counsel argued another motion in limine, seeking to exclude evidence of defendant's prior convictions if defendant himself testified. The court denied defendant's motion, noting that defendant's convictions were recent, demonstrated moral turpitude, and were admissible for the purpose of impeaching credibility. Defendant then took the stand in his own defense and, on direct examination, testified to his three prior felony convictions.
Disposition of defendant's contention is controlled by this Court's opinion in State v. Baca, 89 N.M. 204, 549 P.2d 282 (1976), and the Court of Appeals' application of Baca in State v. Vialpando, 93 N.M. 289, 599 P.2d 1086 (Ct.App.), cert. denied, 93 N.M. 172, 598 P.2d 215 (1979). In both cases, imporper, unsolicited testimony was presented before the jury. In Baca, this Court held that whether an unsolicited comment on a suspect's post-arrest silence was grounds for a mistrial was to be resolved by application of NMSA 1978, Evid.Rule 103(a) (Repl.Pamp.1983) (preservation of error) and NMSA 1978, Evid.Rule 403 (Repl.Pamp.1983) (). Such improper testimony did not automatically warrant a mistrial.
The Court of Appeals applied the Baca rationale in Vialpando, where unsolicited testimony related directly to defendant's previous incarceration. Vialpando declined the trial court's offer to admonish the jury. Vialpando first restates New Mexico's adherence to the general rule that a prompt admonition to the jury cures any prejudicial effect. 93 N.M. at 296-97, 599 P.2d at 1093-94. Vialpando further states that an offer to admonish, even if declined, is generally a sufficient basis to uphold the denial of a mistrial motion. Id. at 297, 599 P.2d at 1094 (citing State v. Carlton, 83 N.M. 644, 495 P.2d 1091 (Ct.App.), cert. denied, 83 N.M. 631, 495 P.2d 1078 (1972)). See also State v. Beach, 102 N.M. 642, 699 P.2d 115 (1985) ().
Here, defendant declined a cautionary instruction which could have cured any prejudicial effect the objectionable testimony may have had on the jury. The ambiguity of the comment regarding defendant's acquaintance with "inmates" would further render it susceptible to cure by a cautionary instruction. On the record before us, the trial court did not abuse its discretion in denying the mistrial motion. Vialpando.
Defendant contends on appeal that the record supports a presumption of prosecutorial misconduct for the prosecutor's purported failure to warn his witnesses to refrain from mentioning defendant's criminal record. We rule against defendant. There...
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State v. Gibson
...particularly when the improper remark was somewhat ambiguous and not emphasized by the witness or counsel. See State v. Nichols, 104 N.M. 74, 75, 717 P.2d 50, 51 (1986); United States v. Doby, 598 F.2d 1137, 1142 (8th Cir.1979) (" 'The jury should not infer from anything that occurred durin......
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Nichols v. Sullivan
...statute. Nichols directly appealed his convictions and armed robbery sentence to the New Mexico Supreme Court, State v. Nichols, 104 N.M. 74, 717 P.2d 50 (1986). In his brief to that court, Nichols alleged: (1) "[t]he trial court erred in refusing to grant a mistrial after the state's key w......
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State v. Espinosa
...criminal record, we need not discuss those cases here, as they are inapposite. Instead, our decision is governed by State v. Nichols, 104 N.M. 74, 717 P.2d 50 (1986), in which we held that a defendant is not entitled to mistrial following a State witness' unsolicited statement concerning th......