State v. Ferguson

803 P.2d 676, 111 N.M. 191

• Court: New Mexico Court of Appeals
• Decided: October 30, 1990
• Docket: 11525
• Status: Published

Opinions

OPINION

MINZNER, Judge.

The state appeals the trial court’s granting of defendant’s motion for a new trial. The state raises one issue on appeal: whether the trial court abused its discretion in granting a new trial because the comments made by the prosecutor during closing argument did not constitute legal error. We affirm.

FACTS

Defendant was charged with an open count of murder for killing his wife’s lover after finding his wife and the victim in bed at defendant’s home. Defendant testified that he hit his wife with the butt of a revolver and that it accidentally went off and caused the victim’s death. The state’s theory at trial was that the shooting could not have been accidental, given the location of the powder burns and the wound on defendant’s wife’s face and head. The state contended that defendant had been suspicious of his wife and murdered the victim when his suspicions were confirmed.

During the trial, evidence was admitted that defendant possessed several loaded guns. In closing argument, the prosecutor remarked that the guns showed a kind of paranoia. Defense counsel objected and the objection was sustained. In his final summation, the prosecutor stated that he thought that the jury should return a guilty verdict. Defense counsel objected and moved for a mistrial. The judge sustained the objection but denied the mistrial and warned the prosecutor. The jury returned a verdict for second degree murder. Defendant moved for a mistrial on several grounds. The trial court granted defendant’s motion for a new trial based on two improper remarks made by the prosecutor in closing argument.

DISCUSSION

The trial court is invested with broad discretion in granting or denying a motion for a new trial, and its decision will be reversed only upon a showing of clear and manifest abuse of that discretion. State v. Gonzales, 105 N.M. 238, 731 P.2d 381 (Ct.App.1986). In reviewing whether a trial court abused its discretion in granting or denying a defendant’s request for a new trial, the appellate court employs a two-part test. Id. First, the court determines whether the grant of a new trial is based on legal error. Second, the court examines whether the error is substantial enough to warrant the exercise of the trial court’s discretion. Id.

We recognize that while the standard of appellate review governing rulings entrusted to the trial court’s discretion is deferential, it does not require us to affirm. Trial courts are given discretion in a number of areas, and the scope of our review depends in part on the particular nature of the question the trial court was called upon to answer.

In this case, Gonzales has provided a starting point for analysis. However, we think it is important to add to its teachings the principle that adequate appellate review often depends on sufficient indication in the record of the reasons underlying a discretionary ruling.

Review-limiting discretion in its stronger forms confers upon the trial judge unusual power with regard to many issues and, as a corollary, grave responsibility. He becomes a court of last resort on these issues, not because appellate machinery is lacking, but because the matters are not susceptible to firm legal rules and because the trial judge is thought to be in a better position than appellate judges to decide the matters wisely and justly.

Of course, a trial judge wielding, such extraordinary power is bound to play fair with the system. He would be false in his duty if he-were to try to camouflage his rulings or to shield them from normal review by “dropping an ‘iron curtain’ ” of discretion over them. Thus, he may not order a new trial in the purported exercise of discretion in a general way when his true ground is an arguable belief that the jury misapplied the law or rendered a verdict he disapproves of for some private reason.

To play fair, a trial judge relying upon discretionary power should place on record the circumstances and factors that were crucial to his determination. He should spell out his reasons as well as he can so that counsel and the reviewing court will know and be in a position to evaluate the soundness of his decision. If the appellate court concludes that he considered inappropriate factors or that the range of his discretionary authority should be partially fenced by legal bounds, it will be in a position to do this intelligently.

M. Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L.Rev. 635, 665-66 (1971) (footnote omitted).

In this case, the trial court’s order granting a new trial lists the grounds on which the court relied. When the order is read in light of the court’s oral remarks at the time the motion was heard, it is clear enough why the court ruled as it did. Thus, we believe the record is sufficient to permit us to review and affirm.

This does not mean to suggest that it would be reversible error in every case to fail to provide a record of the reasons. In some cases, the reasons in favor of the ruling may be so strong and so apparent from the evidence or argument that the trial court does not have to specifically articulate them. In other cases, where the reasons may not be so strong or so apparent, but where it is evident that there existed reasons for and reasons against the ruling, we may indulge in the usual appellate presumptions. See State ex rel. Alfred v. Anderson, 87 N.M. 106, 529 P.2d 1227 (1974) (upon a doubtful or deficient record, we indulge in every presumption in favor of the correctness of the judgment; every reasonable intendment and presumption are resolved in favor of the proceedings and judgment in the court below); accord State v. Garcia, 98 N.M. 186, 646 P.2d 1250 (Ct.App.1982) (trial court is upheld if right for any reason); see Alexander Film Co. v. Pierce, 46 N.M. 110, 121 P.2d 940 (1942) (where the trial court did not state a reason, ruling should not be reversed if correct upon any proper theory); see also State v. Beachum, 83 N.M. 526, 494 P.2d 188 (Ct.App.1972).

In his brief, defendant argues that other comments made by the prosecutor during his closing argument were prejudicial, and thus supported the trial court’s granting of a new trial; however, the court stated in its order that only two comments were the basis on which a new trial was granted. Thus, we discuss only these two comments. We first address the question of whether each one involved legal error. Then we discuss the question of whether the error that occurred was substantial.

PARANOIA REMARK

Initially we note that the parties disagree about the exact reference made by the prosecutor. The state contends the prosecutor stated as follows: “... twenty-one guns, and half of them are loaded, it may represent a kind of a paranoia in a person * * (Emphasis added.) In contrast, defendant quotes the remark in the following manner: “But if you have twenty-one guns and one-half of them are loaded it may represent a kind of paranoia in this person.” (Emphasis added.) After our review of the applicable tape, we conclude the state’s version is probably correct, although the word in question was spoken softly and is not perfectly clear. It is clear, however, that the comment made differs from the comment reproduced in the trial court’s order. The trial court lists the prosecutor’s comment as follows: “shows to me a paranoia — a paranoid man.” In our view, the difference between the state’s version and the comment reproduced by the trial court is irrelevant.

It is improper for a prosecutor to refer to or argue on the basis of facts outside the record. See I American Bar Association, Standards for Criminal Justice Standard 3-5.9 (2d ed. 1980) (ABA). It is also improper for a prosecutor to mislead the jury as to the inferences warranted by the evidence, id., Standard 3-5.8(a), or to comment on the character of the accused until the defendant has placed his or her character in issue. State v. Diaz, 100 N.M. 210, 668 P.2d 326 (Ct.App.1983). In this case, the trial court was entitled to conclude that the comment was an argument not supported by facts of record or legitimate inferences from facts of record. Alternatively, the trial court was entitled to conclude that the comment was an impermissible comment on defendant’s character.

The state argues that the statement was a proper comment on the evidence because defendant’s suspicion about his wife’s behavior was a key element in the case. The state contends that the prosecutor did not make a comment about defendant’s character; instead, the state argues that the prosecutor only suggested a possible explanation for the large number of loaded guns in defendant’s possession. At oral argument, the state contended that the prosecutor in effect described defendant as “suspicious.”

We note, however, that there was other evidence to support an inference that defendant was suspicious of his wife’s activities, yet the prosecutor’s paranoia remark relied on defendant’s possession of loaded guns. The trial court could have thought the specific reference was intended to make a different point. Further, the parties agree and the record shows that the word “paranoia” was used, which the trial court certainly believed was not selected as a synonym. Under these circumstances, the trial court was entitled to conclude that the paranoia remark was legal error within the meaning of Gonzales.

“Paranoia” is a specific psychological term that refers to a certain personality type. Here, defendant’s mental state was not at issue. Further, there was no evidence that possession of loaded guns indicates paranoia, and we are not persuaded by the state’s argument that the presence of paranoia on these facts can be said to be a matter of “common public knowledge based on ordinary human experience.” ABA, supra, Standard 3-5.9.

We agree with the state that the trial court might have concluded that the remark would have been understood as a synonym for “jealous” or “suspicious.” We assume, but need not decide, that it would have been proper to argue that possession of the loaded guns was evidence of a suspicious or jealous nature. However, when the trial court might have decided either way on a question entrusted to its discretion, we will affirm the decision reached by the trial court.

OPINION REMARK

A prosecutor is prohibited from expressing his or her personal view concerning the defendant’s guilt. State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App.1974); see also ABA, supra, Standard 3 — 5.8(b); SCRA 1986, 16-304(E) (Repl.1988). The prohibition does not prevent a prosecutor from stating his opinion based on the evidence. See Swope v. State, 263 Ind. 148, 155, 325 N.E.2d 193, 196, cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975). In Swope, the court stated that the comment “ ‘[w]e trust that you will do what is right. We, of course, are close to the situation and we’re just so convinced this defendant is guilty’ ” would have been reversible error if the prosecutor had not concluded that “[t]he evidence presented here is so convincing.” Id.

A good summary of the relevant law can be found in F. Lee Bailey’s test — F. Bailey & H. Rothblatt, Successful Techniques for Criminal Trials Section 25:16, at 565-66 (2d ed. 1985):

The right of a prosecuting attorney to draw in his argument all legitimate inferences from the evidence authorizes him to assert a belief based on the evidence that the accused is guilty. Indeed, it would be mere stultification if it were contended that the prosecuting attorney could argue to the jury that the evidence should convince them although it did not convince him. A prosecuting officer therefore has the right to state his views as to what the evidence shows.

On the other hand, there are many holdings and statements to the effect that such an expression of belief, opinion, or knowledge is improper if either expressly or inferentially based on facts not shown by the evidence produced at the trial. Such statements, it is said, add to the probative force of the testimony adduced upon the trial the weight of the prosecutor’s personal influence or knowledge, or of his professional opinion, or the influence of his official position. [Footnotes omitted.]

Here, the state argues that the phrase “I think” was simply a mannerism used by the prosecutor and was not a testimonial statement. See, e.g., United States v. Gabriel, 715 F.2d 1447 (10th Cir.1983). Thus, the state contends that the comment may have been bad form, but it was not legal error. We note that the cases on which the state relies appear to have reviewed convictions on direct appeal, rather than a trial court’s decision to grant a defendant’s motion for a new trial. We assume that the standard of appellate review in this case is at least as deferential to the trial court as the standard applied by the federal appellate courts in the cases cited. Given the standard of review, in this case the record does not support a conclusion that the trial court erred in concluding that the prosecutor expressed a personal opinion as to defendant’s guilt. Appellate review of a ruling by the trial court in the exercise of its discretion does not depend on whether the appellate court would have arrived at the same result. State v. Gonzales.

Here, the prosecutor used the term “I think” when recommending that the jury return a guilty verdict, and he clearly did not say he made that recommendation on the basis of the evidence. We note that the prosecutor generally, throughout his closing argument, used the phrase “I think” in referring to what the evidence had shown. However, as he began the brief summary with which he closed his remarks, he said “I think you should return a, a, a guilty verdict, for a crime here. Yes.” There was an immediate objection and a motion for a mistrial.

Under these circumstances, the question for the trial court was whether the jury would have understood the recommendation as an expression of personal opinion. See ABA, supra, Standard 3-5.8(b), commentary, at 3.89-3.90. We see no reason to disturb the trial court’s resolution of that question. The trial court judge was present, and therefore she was in a better position to resolve this question than we are. We do not think that the fact that the prosecutor generally had referred to the evidence prior to beginning his summary required the trial court to rule that the comment was not legal error. See Swope v. State.

In ruling on defendant’s motion for a new trial, the trial court judge carefully distinguished the prosecutor’s earlier comments on the evidence from the last one. She noted that the comments the prosecutor made after each of the earlier remarks to which defendant referred had clarified the prosecutor’s intent. Thus, we believe the trial court understood that the threshold question was whether the prosecutor had expressed a personal opinion.

In this case, the trial court might have concluded that, in context, the jury would have understood the statement as based on the evidence. However, it was also entitled to conclude that the jury would have understood the comment as a statement of personal belief. As indicated earlier, when the trial court might have decided either way on a question entrusted to its discretion, we will affirm its decision.

WHETHER THE ERRORS WERE SUBSTANTIAL

In the present case, the state does not contend that the statements made by the prosecutor were not prejudicial. Defendant has addressed the question of whether the errors were substantial and argued that in weighing the factors for and against both the state and defendant, the trial court could find that the balance was in defendant’s favor. Because Gonzales holds that the trial court is in the best position to ascertain whether the legal error that can be identified is substantial, and that the state bears the burden on appeal to establish an abuse of discretion, we conclude that the trial court could find that the errors were substantial enough to warrant granting defendant’s motion for a new trial.

CONCLUSION

Since the state did not raise it, we will not address the issue of whether a curative instruction to the jury would have corrected the errors or whether defendant’s failure to request such an instruction waived his right to a new trial. The supreme court has stated that it would not search the record to find an error on which to reverse the trial court. State v. Weber, 76 N.M. 636, 417 P.2d 444 (1966). Courts should not take it upon themselves to raise, argue, and decide legal issues overlooked by the lawyers. State ex rel. Human Servs. Dep’t v. Staples, 98 N.M. 540, 541, 650 P.2d 824, 825 (1982).

The state has failed to show that the trial court abused its discretion in any clear or manifest manner. Therefore, the trial court’s granting of defendant’s motion for a new trial is affirmed.

IT IS SO ORDERED.

CHAVEZ, J., concurs. HARTZ, J., dissents.