State v. Gonzales ( 1979 )

SUTIN, Judge

(specially concurring).

I concur.

I agree that “[t]he ‘beating’ testimony was improperly admitted because of the absence of evidence connecting defendant with the beating.” Defendant is entitled to a new trial.

Defendant raised a second point on appeal that should be answered because it may arise at the second trial.

During trial, the testimony put defendant in the home of a sister of the State’s main witness soon after the robbery. She was not called as a witness. During closing argumerit, defendant asked why the State had not called her to testify. In rebuttal, the State turned the tables and asked why defendant had not called her. Defendant objected, and the objection was overruled. The State explained to the jury that if defendant thought she had anything to offer which would help the defendant or hurt the prosecution, she would have been present as a witness. A motion for a mistrial was denied.

This case does not involve the propriety of the comment by the district attorney on the failure of defendant to call a witness on his behalf. State v. Martin, 32 N.M. 48, 250 P. 842 (1926). It involves a response by the district attorney to defendant’s argument with reference to the State’s failure to produce a witness. This response falls within the category of retaliatory statements.

The general rule is that remarks of the district attorney, which ordinarily would be improper, are not ground for reversal if they are provoked by defendant’s counsel, and are in reply to his acts or statements, unless such remarks go beyond a pertinent reply and bring before the jury extraneous matters touching important issues. State v. Parks, 25 N.M. 395, 403, 183 P. 433 (1919).

When defendant “opened the door,” he effectively waived any right he might have to claim error because of the prosecutor’s comments. State v. Paris, 76 N.M. 291, 414 P.2d 512 (1966). The State’s comments were within the realm of a reasonable reply to arguments made by defendant’s counsel. State v. Ergenbright, 84 N.M. 662, 506 P.2d 1209 (1973).

The strategy of the State and defendant is unknown. I assume that the absent witness was available, and that her knowledge of defendant’s presence or absence in her home was known to the State and defendant. Perhaps she was without knowledge. Nevertheless, her testimony was crucial to prove defendant’s innocence, but it was merely corroborative of the testimony of the main witness, her brother. Her absence was a mystery that did influence the jury. The failure of defendant to call the witness was the death knell of the defense, and the mention thereof in closing argument was its interment. Perhaps this mystery will be resolved if this case proceeds to trial again.