State v. Lopez ( 1987 )

GARCIA, Judge

(concurring in part and dissenting in part).

I concur in the opinion with the exception of that portion concerning reversal of Col-son’s conviction based on the prosecutor’s comments. I do not view the prosecutor’s statement as a direct comment on Colson’s failure to testify.

Gonzales v. State, 94 N.M. 495, 612 P.2d 1306 (1980) is cited as New Mexico’s authority on this proposition. The comment in Gonzales, however, was far different. The prosecutor said:

And did you hear one word from the defense, one word of denial that he beat him with this 2x4. Not one word of denial * * *. What was his justification for doing to Byron what he did? He didn’t tell you, the defense didn’t tell you what the reason was. He didn’t give you any justification. He didn’t deny that he hit him with a 2 x 4 and he didn’t tell you why.

Gonzales at 495, 612 P.2d 1306.

The prosecutor’s comments concerned defendant’s failure to justify, explain or deny the alleged misconduct; those direct comments are forbidden by the Fifth Amendment to the Constitution.

In the present case, it is undisputed that defense counsel advised the prosecuting attorney that Colson would testify, and in fact, extracted a concession not to cross-examine him. Anticipating defendant’s testimony, the prosecutor arranged for rebuttal witnesses. The record indicates that the judge inquired of prosecutor whether he would present rebuttal testimony and the prosecutor responded:

Yes, sir, we intend to have two rebuttal witnesses. Um. Having been told that Mr. Colson was going to take the stand, uh, its going to take me about * * *.

Certainly the prosecutor’s comments were improper, and the state concedes as much. Improper as they may have been, I believe they are more in line with the “indirect comments” on defendant’s failure to testify as discussed in State v. Dominguez, 91 N.M. 296, 573 P.2d 230 (Ct.App.1977). Our cases have drawn distinctions between direct and indirect comments. The former are constitutionally forbidden and will result in reversible error. The latter may not result in reversible error under the particular circumstances of the case. I would determine that under the circumstances in this case, the indirect comment did not require a reversal. State v. Carmona, 84 N.M. 119, 500 P.2d 204 (Ct.App.1972).

I respectfully disagree with that portion of the opinion.