State v. Sosa

• Decision Date: 25 November 2009
• Docket Number: No. 31,308.,31,308.
• Citation: 2009 NMSC 056,223 P.3d 348
• Parties: STATE of New Mexico, Plaintiff-Petitioner and Cross-Respondent, v. Jim SOSA, Defendant-Respondent and Cross-Petitioner.
• Court: New Mexico Supreme Court

223 P.3d 348

2009 NMSC 056

STATE of New Mexico, Plaintiff-Petitioner and Cross-Respondent, v. Jim SOSA, Defendant-Respondent and Cross-Petitioner.

No. 31,308.

Supreme Court of New Mexico.

November 25, 2009.;

Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Petitioner and Cross-Respondent.

Caren Ilene Friedman, Santa Fe, NM, for Respondent and Cross-Petitioner.

OPINION

BOSSON, Justice.

{1} Jim Sosa (Defendant) was tried and convicted of two counts of sexual assault based on the victim's alleged inability to consent due to alcohol and perhaps drug-related intoxication. The parties hotly contested any suggestion that Defendant might have given the victim a so-called date-rape drug. During closing arguments, the prosecutor made a statement which, according to Defendant, implied that drugging evidence did exist but had been withheld from the jury by the court. Based on that one statement, Defendant claims fundamental error and demands a new trial, or even no trial and a judgment of acquittal, due to prosecutorial misconduct.

{2} The Court of Appeals agreed with Defendant, found fundamental error, and reversed the convictions. State v. Sosa, 2008-NMCA-134, 145 N.M. 68, 193 P.3d 955. We are not persuaded by Defendant's interpretation of the prosecutor's remark, and we conclude it would not constitute fundamental error in any event. Accordingly, we reverse the Court of Appeals and affirm Defendant's convictions.

BACKGROUND

{3} Defendant was charged with three counts of third-degree criminal sexual penetration, which requires proof of "the use of force or coercion." NMSA 1978, § 30-9-11(E) (2005). Force or coercion can be proven by evidence that the accused knew or had reason to know that the victim was "unconscious, asleep or otherwise physically helpless or suffers from a mental condition that renders the victim incapable of understanding the nature or consequences of the act." NMSA 1978, § 30-9-10(A)(4) (2005). The State's theory at trial was that the victim, J.M., was intoxicated by alcohol or a date-rape drug, or both, to such an extent that she was incapable of consenting to sexual activity. Defendant denied giving her a drug of any kind, and maintained that their sexual activity was at all times knowing and consensual.

{4} Defendant and J.M. first met when she hired him as her personal trainer. A relationship developed between them, and over the course of the next two years they would occasionally go out socially for dinner or drinks. At times they engaged in various forms of flirtation and sexual contact, even sleeping together, but avoided penile sexual intercourse.

{5} Thereafter, on the evening of May 24, 2004, J.M. called Defendant and arranged to meet him at a hotel bar in Las Cruces. J.M. consumed a number of drinks throughout the night, to the point where she became heavily intoxicated. J.M. recalled going to the ladies room at the hotel bar with her friend Marcie, where she vomited. She testified that she felt heavy and found it difficult to speak. While she had consumed more alcohol on prior occasions, J.M. insisted that she had never felt as bad or become so drunk; she felt as if she had been drugged. Her friend Marcie testified that J.M.'s behavior changed "drastically" during the night and "she slid downhill" quickly, having trouble sitting up, slurring her words, and even falling over, unaware of her surroundings. J.M. later believed she had been given a date-rape drug that night.

{6} J.M. testified that she did not remember anything between the events at the hotel bar and being in Defendant's shower, vomiting, and then laying on Defendant's bed begging him for a bucket. The next morning she woke up naked in Defendant's bed. She had no recollection of, and Defendant denied, any sexual activity. Detecting some blood spotting, J.M. was examined two days later by a sexual assault nurse who observed bruising, redness and a laceration at the entrance of her vagina, symptoms described at trial as consistent with non-consensual, forced sexual penetration.

{7} Defendant's recollection differed. He testified that when they arrived at his house, J.M. vomited, took a shower, and then joined him in consensual sexual activity not including penile penetration. The issue at trial, therefore, distilled down to J.M.'s consent, and particularly her ability to consent given her condition that night. The State attacked Defendant's credibility with evidence that he had provided inconsistent statements to the police regarding the events of that night, first denying any sexual activity and then admitting to sexual activity, short of penile penetration, with J.M.'s consent.

{8} A toxicology report revealed only ibuprofen in J.M.'s blood. The State's expert testified, however, that date-rape drugs disappear quickly from the blood, suggesting that the negative toxicology report was not conclusive. Throughout the trial, the State continually referred to J.M.'s condition that night as drunk or drugged.

{9} Defendant moved in limine to exclude any evidence from trial that J.M. had been drugged. Accommodating Defendant in part, the trial court did not allow J.M. to testify that she believed Defendant had drugged her. However, the court did allow J.M. to describe her own perceptions that night (that she "felt drugged"), and the court allowed expert testimony regarding the effects of date-rape drugs generally. The State's expert, a pediatrician with a degree in pharmacy, testified generally about the nature of date-rape drugs. They are put into the victim's drink, and because they have no taste the victim does not perceive the drug. They cause the victim to lose consciousness, and then the drug passes quickly out of the victim's system making detection difficult. The victim regains consciousness with no memory of events that occurred while under the influence of the drug.

{10} During voir dire, the prosecutor informed the jury about the State's theory of the case: that J.M. was so incapacitated through drugs or alcohol that she could not consent. Although there would be ample evidence of J.M.'s alcoholic consumption, the prosecutor conceded that there would be no direct evidence of drugging, such as a scientific test. In response, defense counsel's opening remarks stated flatly that there would be "no evidence of any drugging by anybody in the course of this trial."

{11} After all the evidence was in and the parties rested, counsel began their closing arguments to the jury. During the State's initial closing, the prosecutor again conceded the absence of any direct evidence of drugging, but reminded the jury of the circumstantial evidence of drugging. Responding, defense counsel attacked the drugging theory by calling it "false," claiming there was "no proof" of drugs, and arguing that all of J.M.'s symptoms were caused by alcohol alone. Counsel told the jury not to consider any evidence of drugging. Thereafter, in the State's rebuttal closing, the prosecutor made the following statement, which is the subject of this Opinion: "[Defense counsel] says, No evidence of date rape drug. That is wrong. The Judge wouldn't allow things—wouldn't allow you to hear things that you are not allowed to consider as evidence. That wouldn't come in." Defendant did not object to the statement or move for a mistrial.

{12} The jury convicted Defendant of two counts of third-degree criminal sexual penetration for performing digital penetration and cunnilingus on J.M. when she was incapable of consent. The jury acquitted Defendant of the third count for penile penetration. The court sentenced Defendant to six years imprisonment with three years suspended.

{13} After the verdict, Defendant filed a motion for a new trial, asserting inter alia a lack of evidence to support the drugging theory. Significantly, Defendant did not assert any error with respect to the prosecutor's closing statement. The motion was denied.

{14} On appeal, the Court of Appeals reversed the jury verdict, concluding that the prosecutor's statement was intended to suggest to the jury—inappropriately—that inculpatory evidence of drugging did exist but had been withheld by the court. Sosa, 2008-NMCA-134, ¶ 15, 145 N.M. 68, 193 P.3d 955. The majority found the statement to be "extreme prosecutorial misconduct," amounting to fundamental error, and granted Defendant a new trial. Id. ¶ 17. Chief Judge Sutin dissented, observing that the majority had misread the prosecutor's remarks, and that, in any event, those remarks did not undermine the fairness of the verdict and amount to fundamental error. Id. ¶¶ 32-39 (Sutin, J., dissenting in part). We granted certiorari to resolve the tension between these opposing views in light of our prior opinions discussing when remarks made during closing argument constitute error.

DISCUSSION

The Prosecutor's Comment Did Not Constitute Error

{15} We find no error, fundamental or otherwise, in the prosecutor's remark. The entire comment, in full text, was as follows:

[Defense counsel] says, No evidence of date rape drug. That is wrong. The Judge wouldn't allow things—wouldn't allow you to hear things that you are not allowed to consider as evidence. That wouldn't come in. That's why you get instructed.

So when [J.M.] sat there from this bench, from this witness stand and said, I felt like I had never felt before. I felt drugged. That is testimony. You are allowed to consider that.

When Dr. Williams came in and said that all of her statements were consistent with being drugged, you're allowed to consider that.

In the first paragraph of the Court of Appeals opinion, however, the majority recast the comment as: "[T]he prosecutor, without objection, told the jury that there was `no evidence of date rape drugs' because the judge would not `allow you to hear' it." Sosa, 2008-NMCA-134, ¶ 1, 145 N.M. 68, 193 P.3d 955. With the statement thus rephrased, the Court of Appeals went on to...