State v. Garcia ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-39938
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
YSIDRO ROBERT GARCIA,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Jennifer J. Wernersbach, District Court Judge
Raúl Torrez, Attorney General
Santa Fe, NM
Erica Schiff, Assistant Attorney General
Michael J. Thomas, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
HANISEE, Judge.
{1} Defendant Ysidro Robert Garcia appeals his conviction for receiving or
transferring a stolen vehicle in violation of NMSA 1978, Section 30-16D-4(A) (2009).
Defendant argues that during trial the State improperly elicited testimony from a witness
that Defendant invoked his right to counsel during a postarrest interview. Defendant
seeks reversal of his conviction and a bar on retrial under the Double Jeopardy Clause
of the New Mexico Constitution. For reasons set forth below, we affirm.
DISCUSSION
{2} This case comes before us for the second time. See State v. Garcia (Garcia I),
2020-NMCA-024, 463 P.3d 483. Because the general facts and background are
explained in Garcia I, ¶¶ 2-8, we reference only those facts pertinent to this appeal.
Garcia I required us to address the timeliness of Defendant’s motion to reconsider a
ruling regarding mistrial, a motion which we concluded to have been untimely. Id. ¶¶ 13-
15. We reversed the district court’s contrary determination and remanded for
resentencing. Id. ¶ 16. Thus, we did not consider the propriety of the State-elicited
testimony, which prompted Defendant’s request for a mistrial in the first place. We now
conclude that such testimony, provided by the investigating detective during the State’s
case-in-chief, indeed constituted an improper comment upon Defendant’s invocation of
his right to counsel. Under applicable jurisprudence considered in light of the facts of
this case, however, we determine the comment to have been harmless, and therefore
decline to reverse Defendant’s conviction or resolve his argument regarding the
propriety of retrial.
{3} At trial, the following exchange occurred between the prosecutor and lead
detective:
Q: What did [D]efendant tell you in the interview room?
A: I did read him the advice of rights. [Defendant] said he did
understand. [Defendant] did sign the form and [stated that] he wished to
speak to his attorney.
Defense counsel immediately objected, and the questioning ceased there. The district
court sustained defense counsel’s objection and promptly issued a curative instruction
admonishing jurors that they “may not draw any inference at all about the testimony you
heard that [Defendant] asked for an attorney.”
{4} Our review of prosecutorial commentary or state-elicited testimony regarding a
criminal defendant’s refusal to speak with police consists of two parts.1 State v. Costillo,
2020-NMCA-051, ¶ 6, 475 P.3d 803. First, “we review de novo the legal question
whether the prosecutor improperly commented on the defendant’s silence.” Id. (text
only) (citation omitted). Second, if such impropriety occurred and was properly objected
to at trial, we must “determine whether the error is harmless beyond a reasonable
1A criminal defendant’s assertion of his or her right to remain silent and to speak with counsel are treated
without distinction in the context of allegedly improper discussion at trial. See, e.g., State v. McDowell,
2018-NMSC-008, ¶ 18, 411 P.3d 337 (stating that the court will apply the same analysis to instances in
which a prosecutor elicits testimony about a defendant’s assertion of his right to remain silent and his
right to an attorney); State v. Callaway, 1978-NMSC-070, ¶¶ 10-11, 92 N.M. 80, 582 P.2d 1293(discussing in unison commentary on the invocation of both rights). We, therefore, draw on case law
referencing allegedly improper discussion of a defendant’s assertion of either right.
doubt.” State v. Gutierrez, 2007-NMSC-033, ¶ 18, 142 N.M. 1, 162 P.3d 156. It is the
State’s burden to prove harmlessness. Id. Constitutional error, such as commenting on
a criminal defendant’s exercise of his right to counsel, is not “harmless if there is a
reasonable possibility that the evidence complained of might have contributed to the
conviction.” Id. (internal quotation marks and citation omitted).
{5} The detective’s testimony regarding Defendant’s assertion of his right to counsel
was indeed improper. See State v. Smith, 2001-NMSC-004, ¶ 32, 130 N.M. 117, 19
P.3d 254 (“Evidence of a defendant’s postarrest silence is generally inadmissible.”). In
making this determination, we consider “whether the language used was manifestly
intended to be or was of such a character that the jury would naturally and necessarily
take it to be a comment on the accused’s exercise of his or her right to remain silent.”
Costillo, 2020-NMCA-051, ¶ 15 (internal quotation marks and citation omitted). While
the prosecutor told the district judge he did not intend to elicit the detective’s testimony,
the statement directly addressed Defendant’s assertion of his right to an attorney, and
the jury could only naturally conclude such a statement to “be a comment on the
accused’s exercise of his or her right to remain silent.” Id. ¶ 15 (internal quotation marks
and citation omitted). We, therefore, conclude that the testimony improperly disclosed
Defendant’s exercise of his constitutional right to an attorney. We take this opportunity
to remind counsel for the State that ignorance of a witness’s forthcoming statement is
no excuse for prompting improper testimony and caution that such open-ended
questions unnecessarily risk running afoul of a defendant’s well-established
constitutional protections.
{6} Having so concluded, we turn now to whether such improper testimony requires
reversal. While discussion of a defendant’s choice not to talk to police is legally taboo,
State v. McDowell, 2018-NMSC-008, ¶ 4, 411 P.3d 337 (“New Mexico courts have long
held that a prosecutor is prohibited from commenting on a defendant’s right to remain
silent.”), not all such improper commentary necessarily justifies declaration of a mistrial
or reversal of a conviction on appeal. State v. Molina, 1984-NMSC-038, ¶ 5, 101 N.M.
146, 679 P.2d 814 (“It is not true, however, that any comment on the defendant’s
silence must result in a mistrial, or a reversal of the defendant’s conviction.” (internal
quotation marks and citation omitted)). “In assessing the impact of the prosecutor’s
statement, we examine the context in which it was made.” Gutierrez, 2007-NMSC-033,
¶ 20. Questions that “invite[] the jury to draw a negative inference from the defendant’s
failure to make an additional statement after his arrest” are particularly harmful. State v.
DeGraff, 2006-NMSC-011, ¶¶ 9-10, 139 N.M. 211, 131 P.3d 61. In determining if a
comment on a defendant’s silence requires reversal of his conviction, “[o]ur focus must
remain squarely on assessing the likely impact of the error on the jury’s verdict.” State v.
Alvarez-Lopez, 2004-NMSC-030, ¶ 32, 136 N.M. 309, 98 P.3d 699. While properly
admitted evidence is a factor in our review, id., “[w]e take care not to focus our harmless
error analysis exclusively on whether the trial record consisted of overwhelming
evidence of the defendant’s guilt, so as not to risk inadvertently concluding [the]
constitutional error was harmless simply because there was substantial evidence to
support the conviction.” Gutierrez, 2007-NMSC-033, ¶ 18 (internal quotation marks and
citation omitted).
{7} Our precedent contains several factors useful to determining when a
prosecutorial comment on a defendant’s silence constitutes reversible error. First,
reversal of a defendant’s conviction is more likely when the prosecutor directly
comments on the defendant’s refusal to speak with police than when testimony
regarding the same is inadvertently elicited from a witness. See DeGraff, 2006-NMSC-
011, ¶ 8 (“We have recognized that indirect comments, both those that are ambiguous,
and those inadvertently elicited by the prosecutor from a witness, are less likely to call a
jury’s attention to the defendant’s exercise of his rights.” (internal citation omitted));
State v. Baca, 1976-NMSC-015, ¶ 5, 89 N.M. 204, 549 P.2d 282 (“We would draw the
line between those comments which can be directly attributed to the prosecutor and
those comments incorporated within the testimony of a witness.”). Further, where a
prosecutor asks the jury to infer guilt from a defendant’s silence, either expressly or
through implication, reversal of a conviction is more likely. Cf. DeGraff, 2006-NMSC-
011, ¶ 23 (considering as part of fundamental error analysis that “the comments did not
directly call on the jury to infer guilt from [the d]efendant’s silence”); State v. Allen, 2000-
NMSC-002, ¶ 30, 128 N.M. 482, 994 P.2d 728 (concluding that, because the prosecutor
“did not argue to the jury that they should infer [the d]efendant’s guilt from [his silence],”
the testimony did “not involve the kind of reference to a defendant’s silence that would
require reversal under the doctrine of plain or fundamental error”). Repeated
commentary about the defendant’s silence or otherwise emphasizing his refusal to
speak also likely results in reversal. See Costillo, 2020-NMCA-051, ¶ 19 (“[T]he
commentary was trial-spanning and suggestive of guilt.”). Finally, evidence of guilt apart
from the challenged testimony or commentary may remain relevant “in evaluating the
likely impact on the jury of the constitutional error.” Alvarez-Lopez, 2004-NMSC-030,
¶ 32.
{8} In a harmless error analysis, we reverse “the conviction unless the [s]tate can
demonstrate that the error was harmless beyond a reasonable doubt.” McDowell, 2018-
NMSC-008, ¶ 7 (internal quotation marks and citation omitted). We conclude that the
State has met its burden. To begin, the State correctly argues that “the jury was never
asked to draw an adverse inference from his refusal to speak with police.” We agree.
The testimony at issue in this case consists of one question from the prosecutor that did
not mention silence or invocation of the right to counsel and an answer from the State’s
lead detective stating that Defendant understood his rights, signed the form, and
“wished to speak with [an] attorney.” As opposed to McDowell, 2018-NMSC-008, ¶ 6,
the prosecutor here did not ask directly whether Defendant asserted his right to counsel
or otherwise emphasize the consequences of that choice. The State made no
argument, implicit or otherwise, that Defendant’s refusal to speak corroborates his guilt.
Moreover, Defendant’s silence was never mentioned again throughout the trial. The
State is correct in characterizing the testimony as a “passing reference[] to evidence
that should not be referenced.”
{9} Second, the court’s curative instruction provided immediately after the detective’s
statement sufficiently addressed any negative inference the jury may have made.
Defendant argues that the curative instruction did more harm than good by calling the
jury’s attention to the detective’s comment. We find that assertion unpersuasive. See
State v. Dirickson, ___-NMCA-___, ¶ 29, ___ P.3d ___ (A-1-CA-40149, Apr. 28, 2023)
(“[G]enerally, a prompt admonition from the court to the jury to disregard and not
consider inadmissible evidence sufficiently cures any prejudicial effect which might
otherwise result.” (internal quotation marks and citation omitted)). The same logic would
apply equally to the general jury instruction—also given in this case—that jurors may
not draw any negative inference from the fact that a defendant chose not to testify at
trial. Such an instruction undoubtedly draws attention to a defendant’s assertion of a
constitutional right but is consistently given in criminal cases. The State points out that
we have made this comparison in a similar context in the past:
After all, the jury is well aware that the defendant has not testified. They
do not need the prosecutor to inform them of that fact. What is important is
that the jury know that they should not draw an adverse inference from the
defendant’s failure to testify. Therefore, when the prosecutor makes a
comment such as the one in this case, a proper instruction from the court
can cure any potential harm that may have arisen from the prosecutor’s
pointing out that the defendant failed to testify.
State v. La Madrid, 1997-NMCA-057, ¶ 12, 123 N.M. 463, 943 P.2d 110. Defendant
relies on two cases, Gutierrez, 2007-NMSC-033 and State v. Garcia, 1994-NMCA-147,
118 N.M. 773, 887 P.2d 767, to assert that “curative instructions cannot generally cure
the prejudice of a comment on silence.” However, both cases merely recognize that the
instructions given were insufficient to cure the remarks made in those cases. See
Gutierrez, 2007-NMSC-033, ¶ 23 (“Neither the instruction given, nor a more explicit one,
would have sufficed to cure the error introduced by the prosecutor’s comment in this
case.”); Garcia, 1994-NMCA-147, ¶ 18 (“That is not to say that the giving of a curative
instruction is irrelevant. . . . Here, however, neither the instruction given, nor any more
explicit instruction, would have sufficed to save the verdict.”). Unlike this case, those
cases involved either (1) use of a defendant’s silence to “impeach an explanation
subsequently offered at trial,” id. ¶ 13 (internal quotation marks and citation omitted), or
(2) a comment made directly by the prosecutor at critical juncture of the trial proceeding,
such as opening statements, see Gutierrez, 2007-NMSC-033, ¶¶ 20-23.
{10} Finally, given the nature of the evidence presented against Defendant, the
challenged testimony likely had minimal impact on the jury’s verdict. While
overwhelming evidence of guilt cannot be our sole focus in such circumstances, see id.
¶ 18, it is nonetheless a factor in our analysis to assess “the likely impact of the error on
the jury’s verdict.” Id. (internal quotation marks and citation omitted). The State points
out that Defendant was caught driving a stolen motorcycle that had no license plate
attached and an ignition mechanism that was clearly tampered with. The detective
testified that the ignition mechanism had no key tumbler present, but instead revealed a
quarter-sized hole where the key was normally inserted. Defendant had pieces of the
ignition in his pocket at the time of his arrest, and when he was first stopped by the
police, he stated, “I knew the damn thing was stolen.” Defendant also had a set of keys
in his pocket, none of which corresponded to the stolen motorcycle, that were filed down
“so that they would fit in any key receiver.” The investigating detective testified that such
keys are typically used in “an attempt to force entry into a vehicle.”
{11} We agree with the State that the context surrounding the improper testimony, the
passing nature in which it was mentioned along with the court’s curative instruction, and
the nature of the evidence against Defendant all demonstrate that any prejudice
Defendant may have suffered was “harmless beyond a reasonable doubt.” McDowell,
2018-NMSC-008, ¶ 7 (internal quotation marks and citation omitted). Because we affirm
Defendant’s conviction on this basis, we decline to address Defendant’s argument
regarding retrial.
CONCLUSION
{12} For the above reasons, we affirm.
{13} IT IS SO ORDERED.
J. MILES HANISEE, Judge
WE CONCUR:
JANE B. YOHALEM, Judge
KATHERINE A. WRAY, Judge