State v. Torres

• Court: New Mexico Court of Appeals
• Decided: March 2, 2010
• Docket: 29,603
• Status: Unpublished

Opinion

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. NO. 29,603

10 LAYBE TORRES,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 13 Stephen Pfeffer, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Susan Roth, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 WECHSLER, Judge.

23 Defendant appeals from the district court’s judgment and sentence. This 1 Court’s notice proposed summary affirmance. Defendant filed a memorandum in

2 opposition to the proposed disposition. We are not persuaded by Defendant’s

3 arguments and affirm the district court.

4 Defendant continues to argue that the district court abused its discretion in not

5 declaring a mistrial because the only purpose for the prosecutor’s liar comment was

6 to arouse and inflame the jury, which resulted in prejudice and contributed to his

7 conviction. [MIO 2-3] Defendant contends that the remark calling defense counsel

8 a liar encouraged the jury to convict because if defense counsel was a liar, then the

9 inference was that Defendant was also a liar. [MIO 3] Defendant further asserts that

10 the comment, combined with the act of waiving the citation, improperly made the

11 prosecutor an unsworn witness in a case involving issues of credibility. [MIO 4-5]

12 In addressing Defendant’s arguments, we consider “whether the prosecutor’s

13 improprieties had such a persuasive and prejudicial effect on the jury’s verdict that

14 [D]efendant was deprived of a fair trial.” State v. Duffy, 1998-NMSC-014, ¶ 46, 126

15 N.M. 132, 967 P.2d 807, holding modified on other grounds by State v. Gallegos,

16 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828..

17 The district court judge cured any impropriety by instructing the jury to

18 disregard the prosecutor’s comment. See State v. Martinez, 99 N.M. 353, 355-56, 658

19 P.2d 428, 430-31 (1983) (recognizing that the prosecutor’s characterization of the

2 1 defendant as a “chola punk” was inappropriate but finding that any prejudice that

2 might have resulted was adequately cured by instructions to the jury to disregard it).

3 The prosecutor’s isolated, one-time remark was in reference to a no seatbelt citation,

4 and it had little or no effect on issues of credibility concerning the DWI charge. With

5 regard to the credibility of the blood test results, it appears that the toxicologist

6 testified he could not say with scientific certainty that the blood vial containing

7 Defendant’s name and the name “Garcia” belonged to Defendant. [MIO 1]

8 Therefore, evidence undermining the credibility of the blood test results was admitted

9 for the jury to consider and determine what weight and effect, if any, to place on it.

10 We are not persuaded that the prosecutor’s isolated, unrelated comment concerning

11 the no seatbelt citation had any effect on the jury’s view of the evidence admitted in

12 support of the DWI charge. See State v. Boergadine, 2005-NMCA-028, ¶ 31, 137

13 N.M. 92, 107 P.3d 532 (holding that comments constituting an “isolated, minor

14 impropriety” did not deprive the defendant of a fair trial (internal quotation marks and

15 citation omitted)).

16 In light of the judge’s corrective instruction to the jury and the remoteness of

17 the comment to the DWI charge at issue, we hold that any error was harmless because

18 there is no reasonable probability the error affected the verdict. Cf. State v. Day, 91

19 N.M. 570, 573-74, 577 P.2d 878, 881-82 (Ct. App. 1978) (stating that the proper

3 1 harmless error standard in a case of prosecutorial misconduct was whether there was

2 a reasonable probability that the misconduct contributed to the conviction).

3 Consequently, the prosecutor’s remark did not deprive Defendant of a fair trial. See

4 State v. Taylor, 104 N.M. 88, 96, 717 P.2d 64, 72 (Ct. App. 1986) (noting that isolated

5 comments were not so pervasive or prejudicial as to deprive the defendant of a fair

6 trial).

7 For these reasons and those stated in the notice of proposed disposition, we

8 affirm the district court.

9 IT IS SO ORDERED.

10 ________________________________ 11 JAMES J. WECHSLER, Judge 12 WE CONCUR:

13 ______________________________ 14 JONATHAN B. SUTIN, Judge

15 ______________________________ 16 LINDA M. VANZI, Judge