DocketNumber: A-1-CA-37522
Filed Date: 1/7/2019
Status: Non-Precedential
Modified Date: 2/15/2019
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. No. A-1-CA-37522 5 CARMEN GONZALES, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Jacqueline D. Flores, District Judge 9 Hector H. Balderas, Attorney General 10 Santa Fe, NM 11 for Appellee 12 The Law Office of Ramsey & Hoon, LLC 13 Twila A. Hoon 14 Albuquerque, NM 15 for Appellant 16 MEMORANDUM OPINION 17 VANZI, Chief Judge. 1 {1} Defendant appeals following her conviction for DWI. We previously issued a 2 notice of proposed summary disposition, proposing to affirm. Defendant has filed a 3 memorandum in opposition. After due consideration, we remain unpersuaded by 4 Defendant’s assertion of error. We therefore affirm. 5 {2} Defendant’s challenging on appeal concerns the district court’s handling of a 6 closing comment. The prosecutor appears to have invited the jury to reflect upon the 7 evidence presented in support of the DWI charge, as “[i]f you were on the road that 8 night, or if your child [inaudible] . . .” [DS 4] Defendant argued that comment 9 constituted an improper appeal to sympathy or prejudice, and requested a curative 10 instruction. [DS 4-5] The district court denied Defendant’s request, and simply 11 ordered the State to “move on.” [DS 4] 12 {3} In her memorandum in opposition Defendant contends that the prosecutor’s 13 comment was designed to inflame the jury, and was sufficiently indecorous and 14 prejudicial to her right to a fair trial that the district court’s failure to issue a corrective 15 instruction resulted in reversible error. [MIO 2-3] However, as we previously 16 observed, the comment was brief and isolated, and it did not invade any constitutional 17 protection. This weighs against Defendant’s assertion of error. See State v. Sosa, 182009-NMSC-056
, ¶ 31,147 N.M. 351
,223 P.3d 348
(“[O]ur appellate courts have 19 consistently upheld convictions where a prosecutor’s impermissible comments are 2 1 brief or isolated.”); State v. Brown,1997-NMSC-029
, ¶ 23,123 N.M. 413
,941 P.2d 2
494 (“The general rule is that an isolated comment made during closing argument is 3 not sufficient to warrant reversal.”). Moreover, we remain unpersuaded that the 4 comment was sufficiently egregious to require a different response. “Because trial 5 judges are in the best position to assess the impact of any questionable comment, we 6 afford them broad discretion in managing closing argument.” Sosa,2009-NMSC-056
, 7 ¶ 25. “Only in the most exceptional circumstances should we, with the limited 8 perspective of a written record, determine that all the safeguards at the trial level have 9 failed. Only in such circumstances should we reverse the verdict of a jury and the 10 judgment of a trial court.”Id.
We conclude that this is not such a case. 11 {4} Accordingly, for the reasons stated in the notice of proposed summary 12 disposition and above, we affirm. 13 {5} IT IS SO ORDERED. 14 15 LINDA M. VANZI, Chief Judge 16 WE CONCUR: 17 18 JULIE J. VARGAS, Judge 19 3 1 JENNIFER L. ATTREP, Judge 4