State v. Torres
| Decision Date | 24 May 2012 |
| Docket Number | No. 32,291.,32,291. |
| Citation | 279 P.3d 740,2012 -NMSC- 016 |
| Parties | STATE of New Mexico, Plaintiff–Respondent, v. Laybe TORRES, Defendant–Petitioner. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Jacqueline L. Cooper, Chief Public Defender, Kimberly M. Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Petitioner.
Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Respondent.
{1} Laybe Torres (Defendant) was convicted by a jury of Driving While Intoxicated (seventh or subsequent offense). While Defendant was initially pulled over for not wearing a seatbelt during a routine seatbelt enforcement operation, the arresting officer subsequently initiated a DWI investigation after smelling alcohol, observing Defendant's bloodshot eyes, and noting Defendant's slurred speech.
{2} In his rebuttal closing, the prosecutor told the jury that defense counsel had lied when commenting on the absence of a seatbelt citation during his closing argument, implying that a citation did in fact exist. The prosecutor also waved around what appeared to be a copy of the seatbelt violation, which had not been introduced into evidence, in front of the jury while accusing defense counsel of lying. Defense counsel promptly moved for mistrial, and the trial court, after excusing the jury from the courtroom and discussing the issue with counsel, instructed the jury to “disregard the statement of the prosecution as to opposing counsel lying.”
{3} Defendant appealed his conviction to the Court of Appeals, which affirmed the trial court in a memorandum opinion. State v. Torres, No. 29,603, mem. op., 2010 WL 3997933 (N.M.Ct.App. Mar. 2, 2010). While we agree with the Court of Appeals' ultimate conclusion that a new trial is not warranted, we nonetheless must address the prosecutor's unprofessional behavior during closing arguments. SeeNMSA 1978, § 36–2–1 (1941) (); see also Bell v. State, 723 So.2d 896, 897 (Fla.Dist.Ct.App.1998) (). While we would disapprove of such conduct by any practicing attorney during any trial, we find the prosecutor's behavior in this case especially troubling. A prosecutor “represents the public interest” and must ensure above all else that a criminal defendant receives a fair trial. State v. Gonzales, 2005–NMSC–025, ¶ 36, 138 N.M. 271, 119 P.3d 151;see also State v. Cooper, 2000–NMCA–041, ¶ 15, 129 N.M. 172, 3 P.3d 149. Referring to opposing counsel as a liar, or attempting to corroborate such insults by relying on information not admitted into evidence erodes that interest, undercuts public confidence in the legal profession, and unnecessarily raises the risk of a mistrial.
I. BACKGROUND
{4} At trial, the State presented testimony regarding the sobriety testing, the drawing and testing of Defendant's blood, and the blood test results in order to support the DWI charge. Although defense counsel challenged the accuracy and reliability of the blood test results,1 the jury heard a considerable amount of testimony from the medical assistant and forensic toxicologist who drew and tested Defendant's blood, as well as testimony concerning the protocol followed in the present case and blood drawing and testing protocol generally.
{5} During defense counsel's closing argument, he noted the fact that the State presented no evidence regarding the underlying seatbelt violation—the reason for which Defendant was initially stopped. Defense counsel asked the jury to
[l]ook at the situation. If you get pulled over by an officer because you're not wearing your seatbelt, he may arrest you for something else later. And that's his whole purpose of being out there that day is to make sure you're wearing your seatbelt. Don't you think maybe you'd want to ask yourself why we're not here on the seatbelt, too? It's a little odd. Maybe there's something else going on in this case, I don't know. It doesn't seem right.... But there's just something not right with that.
Without any objection from the State, defense counsel finished his closing argument. Immediately after beginning his rebuttal closing, however, the prosecutor informed the jury that defense counsel had lied regarding the seatbelt citation comments, while simultaneously waving a copy of the seatbelt violation around in front of the jury. Defense counsel alleges to never have seen the citation and it had not been introduced into evidence during the trial. Although the parties dispute the actual wording the prosecutor employed in attacking defense counsel's honesty during his rebuttal,2 we find implicit in the conversation between the trial court and counsel during the bench conference after defense counsel's objection and motion for mistrial a finding by the district court that the prosecutor in fact told the jury that defense counsel had lied: 3
...
...
{6} After establishing what had actually been said in front of the jury, the trial court reflected on the way the prosecutor handled the situation, advising the prosecutor to The court asked why, if the prosecutor believed defense counsel's statements to be problematic, rather than making an objection he decided to tell the jury he was lying, further noting that:
You waited until you[r] reply thinking that you could bring up evidence that was not before this Court. So that's a big problem. That should-there needs to be something in you that makes you stop. And then when you say it so quickly to just say ... he's a liar, that really-I don't know what television shows you're watching about attorneys, but I don't want to hear “liar” in my courtroom. That should be something that makes you hesitate.
After hearing arguments by both parties on the appropriate way to proceed, including argument in support of defense counsel's motion for mistrial, the trial court determined the seatbelt citation issue to be peripheral to the DWI trial and decided to instruct the jury to disregard the prosecutor's statement. After retiring for deliberation, the jury returned a guilty verdict in roughly twenty minutes.
II. DISCUSSIONA. The trial court did not abuse its discretion in denying Defendant's motion for mistrial.
{7} Before addressing the issue of attorney professionalism that this case presents, we briefly discuss why the prosecutor's actions, while entirely improper, did not deprive Defendant of a fair trial. State v. Sosa, 2009–NMSC–056, ¶ 25, 147 N.M. 351, 223 P.3d 348. The trial court abuses its discretion in ruling on a motion for mistrial if in doing so it “acted in an obviously erroneous, arbitrary, or unwarranted manner.” State v. Fry, 2006–NMSC–001, ¶ 50, 138 N.M. 700, 126 P.3d 516 (quoting State v. Stills, 1998–NMSC–009, ¶ 33, 125 N.M. 66, 957 P.2d 51).
{8} In reviewing the trial court's ruling, we view the comment at issue “in context with the closing argument as a whole and in the context of the remaining trial proceedings so that we may gain a full understanding of the comments and their potential effect on the jury.” Fry, 2006–NMSC–001, ¶ 50, 138 N.M. 700, 126 P.3d 516 (quoting State v. Armendarez, 113 N.M. 335, 338, 825 P.2d 1245, 1248 (1992) (internal quotation marks omitted)). This Court has in the past acknowledged that
[c]oming at the end of trial, and often after jury instructions, [closing argument] is the last thing the jury hears before retiring to deliberate, and therefore has considerable potential to influence how the jury weighs the evidence. At the same time, closing argument, and rebuttal argument in particular, is necessarily responsive and extemporaneous, not always capable of the precision that goes into prepared remarks.
Sosa, 2009–NMSC–056, ¶ 24, 147 N.M. 351, 223 P.3d 348. When remarks made during closing argument offset this delicate balance, the trial court may choose to strike statements and offer curative instructions. Id. ¶ 25. Alternatively, “should all the preceding safeguards fail, the trial court retains the power to declare a mistrial.” Id. Because the trial court is better able to gauge the magnitude of objectionable comments, we afford it broad discretion in choosing the appropriate way to respond. See id.
{9} As discussed more thoroughly below, we view both the prosecutor's reference to information outside of evidence and his labeling of defense counsel as dishonest as unacceptable. We hold, however, that the trial court did not err in choosing to deny the motion and to instead downplay the prosecutor's actions through a simple curative instruction to the jury. Cf. State v. Taylor, 104 N.M. 88, 95, 717 P.2d 64, 71 (Ct.App.1986) ().
{10} In State v. Sosa, this Court articulated three factors to consider when reviewing questionable statements made...
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