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Allen v. Tong2/10/2003
065, 40, 130 N.M. 753, 31 P.3d 1027; Gracia, 120 N.M. at 197, 900 P.2d at 357.
Counsel's Closing Argument
The case below was tried on a bifurcated basis--first liability, then damages. This appeal is from the liability verdict. The issue of damages was never reached. During his closing argument, Defendant's counsel stated that if the jury found Defendant was not negligent, then "that will be the end of this trial and your job will be over, and you will get back to your jobs and your families."
Plaintiff accuses Defendant's counsel of "attempt to cultivate an improper mind set in the jurors," by "reminding them that a `no' verdict will end this whole matter." Plaintiff asserts that the one hour and twenty minute jury deliberation shows the effect and prejudice of this statement. Further, Plaintiff states that Defendant's counsel breached an ethical duty by giving the jury a "fast track" direction that must come from the court, not from counsel, thereby misstating the law as to the duty of jurors.
Plaintiff made no objection to the statement. Absent an objection, we will review the propriety of the statement only in "exceptional cases where the interest of substantial justice is at stake." Lopez v. Southwest Cmty. Health Servs., 114 N.M. 2, 10, 833 P.2d 1183, 1191 (Ct. App. 1992) (internal quotation marks and citation omitted). Plaintiff asserts that interest is at stake and that the doctrine of fundamental error should be applied because the argument was "so flagrant and glaring in fault and wrongdoing as to leave the bounds of ethical conduct." Grammer v. Kohlhaas Tank & Equip. Co., 93 N.M. 685, 693, 604 P.2d 823, 831 (Ct. App. 1979). We disagree.
In his closing argument, Defendant's counsel discussed the evidence and asked the jury to consider whether Defendant's thinking was reasonable and whether his actions were in good faith under the circumstances presented to him. Counsel then suggested to the jury that the evidence established that the answer was "yes." He then discussed some of the instructions, including the special verdict form, noting for the jury in particular the first question on the special verdict form, which was whether Defendant was medically negligent. He asked the jury to answer that question "no." It was at that point that Defendant's counsel indicated that with a "no" answer the trial would be over and everyone could get back to their work and families.
In the context of his argument, we cannot say that Defendant's counsel's statement was a flagrant or glaring wrongdoing that requires us to invoke fundamental error. We therefore reject Plaintiff's request that we reverse based on this statement during closing argument.
Denial of Motion for New Trial
Plaintiff asserts the district court abused its discretion in denying his motion for a new trial. We review orders that deny a motion for a new trial under a deferential, abuse of discretion standard. Rhein v. ADT Auto., Inc., 1996-NMSC-066, 18, 122 N.M. 646, 930 P.2d 783. Based on our holdings on the instruction error and closing argument issues and our analyses underlying those holdings, we see no basis on which to view the district court's order denying plaintiff's motion for a new trial to be an abuse of discretion.
CONCLUSION
We affirm.
IT IS SO ORDERED.
JONATHAN B. SUTIN, Judge
WE CONCUR:
A. JOSEPH ALARID, Judge
IRA ROBINSON, Judge
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