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State v. Collins3/4/2005
to make such a rule. It is the duty of the complaining party to request a curative instruction. State v. Sandoval, 88 N.M. 267, 268, 539 P.2d 1029, 1030 (Ct. App. 1975). Enriquez is also distinguishable because there the district court found that the comment had a prejudicial effect and, in this case, there was no such prejudice. 1998-NMCA-157, 138. Defendant was not denied a fair trial on the basis of the references to the police report by the prosecutor.
b. The Prosecutor Stated, "I don't see any [snow], do you see any?"
The second claimed instance of prosecutorial misconduct occurred during cross-examination of Defendant after Defendant pointed out snow in a picture. The prosecutor responded: "I don't see any [snow], do you see any?" Defense counsel objected, and the objection was sustained before defense counsel even stated a ground for the objection. The pictures were published to the jury.
We will assume, without deciding, that this comment by the prosecutor was an improper comment on the evidence. See State v. Reynolds, 111 N.M. 263, 266, 804 P.2d 1082, 1085 (Ct. App. 1990) (" here are restrictions on the prosecutor's freedom to express an opinion to the jury[.]"). We, nonetheless, see no abuse of discretion by the district court. The court's actions in sustaining Defendant's objection and publishing the pictures to the jury would have cured any prejudice from the prosecutor offering his own opinion on the evidence. Concluding that the district court's actions were reasonable and that there was no prejudice, we hold that this instance of claimed prosecutorial misconduct did not deny Defendant a fair trial. See Duffy, 1998-NMSC-014, 46. Further, even assuming there were prejudice, we reiterate that there was no sua sponte duty on the part of the court to take any further action to remedy the prejudice as Defendant argues.
c. Reference to the Booking Sheet
The final instance of claimed prosecutorial misconduct occurred after Defendant testified that he had a can of chewing tobacco with him when arrested and that the tobacco was listed on the booking sheet at the jail. During the State's cross-examination of Defendant, the following colloquy took place:
Prosecutor: Did you have a can of Red Seal that night or Coppenhagen?
Defendant: Red Seal.
Prosecutor: And you said you were booked with that?
Defendant: Yes, I was.
Prosecutor: May I approach your honor?
The Court: You may.
[unknown speaker]: Is that off the booking report?
Defense Counsel: That's not off of the booking report. I'd object. I'd called the jail and had them bring it over, the booking report it has his personal effects, it has a can of Red Seal in it. So if he's going to show this he needs to . . .
The Court: If you are testifying Mr. Lindsey, why don't you do it up here at the bench.
Defense Counsel: I'm sorry your Honor. I apologize. . . . My objection would be that that's incomplete and if they are going to offer it they need to do the whole file.
The Court: Approach.
Defense Counsel: . . . and I object to all of it, it's hearsay [inaudible] . . . it's incomplete and it's misleading [inaudible].
The Court: Before evidence closes in this case I want to see that report.
Apparently after the close of evidence, defense counsel obtained the entire booking sheet from the jail and offered it into evidence. The court did not admit it into evidence, stating as the grounds for its ruling that evidence had already closed, he did not believe the jury had been misled about the b
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