State v. Reynolds

• Decision Date: 15 November 1990
• Docket Number: No. 11811,11811
• Citation: 804 P.2d 1082,111 N.M. 263,1990 NMCA 122
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Charles REYNOLDS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1082

804 P.2d 1082

111 N.M. 263

STATE of New Mexico, Plaintiff-Appellee, v. Charles REYNOLDS, Defendant-Appellant.

No. 11811.

Court of Appeals of New Mexico.

Nov. 15, 1990.

Cert. Denied Jan. 2, 1991.

[111 N.M. 264] Jacquelyn Robins, Chief Public Defender, Hugh W. Dangler, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Elizabeth Major, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

HARTZ, Judge.

Defendant seeks reversal of his conviction of burglary of a pickup truck. NMSA 1978, Sec. 30-16-3(B) (Repl.Pamp.1984). He contends that he was denied a fair trial by (1) the state's opening statement, in which (a) the prosecutor said that defendant had provided a "cock-and-bull story" and (b) the prosecutor may have referred to defendant's expected trial testimony; (2) the prosecutor's efforts to inform the jury of defendant's felony convictions that were more than ten years old; (3) a conversation outside the courtroom during trial in which a police officer, who had already testified, allegedly informed an officer who had not yet testified that defense counsel was asking about discrepancies concerning the date and location of the offense; and (4) cumulative error. He also claims that the district court erred by denying a tendered instruction on attempted burglary. We affirm.

I. FACTS

Officer Kathleen Smith testified on direct examination as follows: Shortly before midnight on January 5, 1989, she responded to a citizen's report that someone was lying under a pickup truck by Sparks' Garage. Upon her arrival, she observed defendant under a red Ford pickup. As she approached the vehicle, defendant said, "Don't shoot, don't shoot, I'll come out." After he emerged, he explained that he was just hanging around. When she asked him if the pickup was his, he answered that it was not, but that he had a similar one at home that was not running and he was checking this one out to see what was wrong with his. Soon thereafter Officer Fred Smith arrived. At his request, she looked under the pickup and found an open-end wrench. Because of a shift change, she then departed, leaving further investigation to her fellow officer. Two or three days later she made a verbal report of the incident to Officer Lance Smith, who was preparing a written report.

On cross-examination Officer Kathleen Smith was asked if she had told Officer Lance Smith that the incident occurred on January 9 at 1320 North Chicago. She responded that she could not say what date she had given him. Also, she did not remember providing a street number; she had not known the address of Sparks' Garage, except that it was on North Chicago. She recalled telling Officer Lance Smith that the pickup was a Ford, but she did not recall mentioning the model year. She admitted that at the preliminary hearing she had testified that the incident occurred on January 9, but she added that the date was straightened out at the hearing. She stated that both defendant and his wife had testified that the incident occurred on January 5.

Officer Fred Smith testified that after Officer Kathleen Smith departed, he was talking to defendant when he heard a "thunk" from the pickup. He looked under the pickup and found a starter on the ground. Defendant told him that there had been a couple of kids messing around the truck, but he had run them off and then checked under the truck to see if anything was missing. Officer Smith let defendant go because he could not reach Mr. Sparks. On cross-examination he was asked whether he had testified at the preliminary hearing that the incident occurred on January 9. He stated that he recalled the January 9 date being brought up, but he did not remember testifying to that date himself. He said that he recalled pulling the radio log, which showed the date as January 5. He also said that defendant and his wife had testified at the preliminary hearing that the incident occurred on the night of January 5 and 6.

Terry Roberts testified that he owned a 1977 Ford pickup that he had taken to Sparks' Garage for a new gasket in the oil pan. He stated that no one had permission to work on the starter.

Aubrey Sparks testified that defendant called him the morning of January 6 to say that he had seen three kids under a pickup trying to take the starter off, but he had run them off and tried to put the starter back on. Sparks then checked out the pickup and saw some wrenches lying on the frame under the pickup. They were not his. The wrenches were consistent with those necessary to remove a starter. He stated that removing a starter requires removing two or three bolts and an electric wire, and takes about fifteen minutes. He acknowledged that he had incorrectly described the pickup to Officer Lance Smith as a 1968, rather than a 1977, model.

Officer Lance Smith testified that he prepared the report on the incident. Although he talked about the matter with Officer Fred Smith on January 6, he began his investigation on January 9. He spoke with Mr. Rogers, Mr. Sparks, and Officer Kathleen Smith. His information on the model year of the pickup came from Mr. Sparks. He admitted that he mistakenly put the date on which he prepared the report as the date of the offense itself. He testified that defendant and all other parties agreed at the preliminary hearing that the incident had taken place on January 5.

Defendant testified that on the evening of the incident he heard two boys under the pickup. When he asked them what they were doing, they admitted trying to steal parts. He assured them that if they had not stolen anything, he would talk to Mr. Sparks. After unsuccessfully attempting to call Mr. Sparks, he crawled under the pickup to determine if anything was missing, so that he could go to Mr. Sparks' home and tell him. At that time Officer Kathleen Smith arrived.

Defendant and his wife each admitted at trial that in 1985 they had been convicted of burglary as co-defendants. The testimony of the other defense witnesses is not material to the appeal.

II. FAIR TRIAL

A. Prosecutorial Comments in Opening Statement

1. "Cock-and-Bull" Story

During his opening statement the prosecutor asserted that the day after the incident defendant "called Mr. Sparks and gave him this cock-and-bull story about * * *." Defendant objected and moved for a mistrial. The district court denied the motion but gave an instruction, which was accepted by defendant. The instruction advised the jury that opening statements are not evidence and should not include argument. It also advised that statements of counsel's personal opinion are inappropriate even during argument.

As explained in the Committee Comment to the uniform jury instruction on opening statements for civil trials, "The purpose of the opening statement is not to serve as the final argument nor as a preface thereto. While latitude is allowed counsel, the exercise of the right is subject to control by the court in its discretion." SCRA 1986, 13-108 (emphasis in original). See State v. Gilbert, 99 N.M. 316, 319, 657 P.2d 1165, 1168 (1982). The district court properly could have found that the prosecutor's comment was too argumentative for opening statement.

The comment did not, however, require the declaration of a mistrial. If the trial judge believes that a prosecutor's impropriety is substantially likely to cause a miscarriage of justice, the judge should grant a defendant's motion for a mistrial. Otherwise, granting a mistrial motion is inappropriate. See State v. Sutphin, 107 N.M. 126, 130, 753 P.2d 1314, 1318 (1988). Because the trial judge's observations of the proceedings are such a critical factor in determining whether the fairness of the trial will be affected, appellate courts review such rulings only for abuse of discretion. See State v. Simonson, 100 N.M. 297, 301, 669 P.2d 1092, 1096 (1983). Discretion is not abused if the trial judge (a) rationally appraises the impact of the prosecutor's statement on the jury and (b) applies the correct legal standard in determining whether to declare a mistrial. Nothing here suggests error in either respect. A reasonable trial judge could readily find that, regardless of what evidence might later be adduced at trial, the prosecutor's statement was unlikely to impair significantly the jury's ability to view the evidence rationally.

Moreover, we can see in retrospect that in fact there was no substantial likelihood that the statement improperly prejudiced defendant. Although there are restrictions on the prosecutor's freedom to express an opinion to the jury, see State v. Ferguson, 111 N.M. 191, 803 P.2d 676 (Ct.App.1990), the prosecutor in final argument may make comments rationally founded on the evidence. For example, in State v. Deutsch, 103 N.M. 752, 758, 713 P.2d 1008, 1014 (Ct.App.1985), cert. denied, 476 U.S. 1183, 106 S.Ct. 2918, 91 L.Ed.2d 547 (1986), we found no misconduct in the prosecutor's referring to a letter of the defendant as " 'a tissue of lies.' " Here the evidence, only some of which has been summarized above, would support a characterization of defendant's statement to Mr. Sparks as a "cock-and-bull story." Given that the prosecutor's comment in his opening statement would have been acceptable in final argument, we fail to see how the comment denied defendant a fair trial, particularly in light of the district court's instruction to the jury at the time of the comment.

2. Alleged Reference to Expected Testimony by Defendant

Also during his opening statement the prosecutor told the jury: "[Defendant] would have you believe he's in no condition to be crawling down * * *. I have a list of medical problems he's testified to before as far as two slipped disks and a ruptured hernia and different types of areas and a limited amount of exercise and activity he can * * *." Defense counsel objected and moved for a mistrial, arguing that the prosecutor was commenting on what defendant might say and...