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State v. Collins3/4/2005
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The first instance of claimed prejudicial error involved the prosecutor referring to the police report concerning Defendant's arrest. Defendant testified at trial that he had a couple of beers at a bar earlier that night. During cross-examination, the prosecutor asked Defendant whether he initially told the officer that he had not had any beers. When Defendant responded by saying he did not tell the officer that he had not had anything to drink, the prosecutor said: "if I told you that it's in the [police] report, that you told him that you had not been . . . ." At this point, defense counsel objected on the ground that the officer did not testify whether Defendant told him that he had not been drinking. The court stated that the jury would remember the officer's testimony and that the court was not going to make a decision on the objection. Moments later, the prosecutor asked Defendant, "You told the officer that you had been at your parent's that night, right?" Defendant stated that he told the officer he was at the bar. The prosecutor then asked, "That's not in the report, would that surprise you?" Defense counsel objected, stating, "he didn't do the report." The court sustained the objection before defense counsel finished his argument. On appeal, Defendant argues that the prosecutor's comments were attempts to discredit Defendant and were improper and prejudicial because they gave a false impression of fact to the jury.
The district court did not abuse its discretion in failing to sustain Defendant's first objection based on the court's curative comment and Defendant's failure to focus on an applicable evidentiary rule. Similarly, the district court did not abuse its discretion in sustaining Defendant's second objection, which we interpret as falling under Rule 11-602 NMRA (requiring personal knowledge). Moreover, the prosecutor's alleged improprieties in this case did not have "such a persuasive and prejudicial effect on the jury's verdict that the defendant was deprived of a fair trial." Duffy, 1998-NMSC-014, 46. We find no prejudicial effect on the jury's verdict because the jury found that Defendant drove with an unlawful BAC, and any opinion as to Defendant's credibility would not have a material bearing on that determination. Because the alleged misconduct could have no effect on the jury's verdict, Defendant was not prejudiced or denied a fair trial.
Defendant further argues that even though his second objection was sustained, the prosecutor's comments were so prejudicial that the court had a duty to give a curative instruction or take some other step to remedy the prejudice caused by the statement, relying on Enriquez v. Cochran, 1998-NMCA-157, 126 N.M. 196, 967 P.2d 1136. In Enriquez, a personal injury case, defense counsel made improper references to the defendant's ability to pay a verdict against him, knowing full well that the defendant had insurance which would likely cover the full amount of any award. Id. 132, 134. In Enriquez, this Court stated: " he trial court did nothing in response to Plaintiff's objections beyond instructing the jury to `ignore the last remark[.]' . . . This single admonition, in the absence of other cautionary or corrective instructions, was insufficient to meet the false impression left by Counsel's statement." Id. 136.
Enriquez is distinguishable from the case at hand on several grounds, the most compelling of which is that in Enriquez, the plaintiff asked for a curative instruction and the court refused. Id. 137. Here, Defendant did not request a curative instruction, but nonetheless appears to argue, based on our language in Enriquez, that the court had a sua sponte duty to give a corrective instruction. We decline
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