FROM THE DISTRICT COURT OF SANDOVAL COUNTY George P.
Eichwald, District Judge
Bennett J. Baur, Chief Public Defender C. David Henderson,
Appellate Defender Santa Fe, NM for Appellant
H. Balderas, Attorney General Laura Erin Horton, Assistant
Attorney General Santa Fe, NM for Appellee
L. CHÁVEZ, Justice
Following a jury trial, Defendant John "Jack"
McDowell was convicted of first- degree murder, contrary to
NMSA 1978, Section 30-2-1(A) (1994), and tampering with
evidence, contrary to NMSA 1978, Section 30-22-5 (2003).
During trial the prosecutor elicited testimony from the
arresting detective, without objection, that Defendant had
invoked his right to counsel, and that by doing so the
detective was precluded from questioning Defendant. Defendant
contends on appeal that he was deprived of due process when
the prosecutor elicited this testimony. We agree that the
prosecutor erred. For decades, prosecutors have been
prohibited from commenting on or eliciting testimony about a
defendant's exercise of his or her right to remain
silent, see State v. Miller, 1966-NMSC-041, ¶
30, 76 N.M. 62, 412 P.2d 240 (citing Griffin v.
California, 380 U.S. 609, 614-15 (1965)), or his right
to counsel, State v. Callaway, 1978-NMSC-070, ¶
10, 92 N.M. 80, 582 P.2d 1293. We review the prosecutor's
error in this case for fundamental error because the error
was not preserved, and conclude that the error was
fundamental due to the prejudicial impact of such testimony
and the lack of overwhelming evidence against Defendant.
Accordingly, we vacate his convictions and remand to the
district court for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
James Chavez died from stab wounds to his chest on July 10,
2011 in his Rio Rancho home. Shortly before his death, Chavez
was cleaning his home with two acquaintances, Casey Williams
and David Dinelli. Defendant, Defendant's son, and
Anthony Villagomez entered the home to recover goods stolen
by Chavez that belonged to Defendant's son. Villagomez
carried a sawed-off shotgun, pointed it at Williams, and
threw her into the garage. Dinelli ran to a bedroom, jumped
out through a window, and hid underneath a truck outside the
house. Defendant and his son encountered Chavez in the
kitchen, where a fight ensued between Defendant's son and
Chavez. According to Villagomez, who testified under a grant
of immunity, after three to five minutes of fighting,
Defendant approached Chavez and stabbed him. Villagomez was
the only witness to testify that he saw Defendant stab
This Court has jurisdiction over Defendant's appeal under
Article VI, Section 2 of the New Mexico Constitution and Rule
12-102(A)(1) NMRA. See State v. Smallwood,
2007-NMSC-005, ¶ 6, 141 N.M. 178, 152 P.3d 821.
Defendant advances three grounds for reversal: (1) he was
deprived of due process when the prosecutor elicited
testimony about Defendant's exercise of his right to
counsel, (2) Defendant's attorney was ineffective because
of his hearing impairment, and (3) the district court erred
when it did not hold a hearing to determine whether the
jurors accessed outside information to break their deadlock.
We conclude that Defendant was deprived of due process and
remand for a new trial. We do not need to address the
remaining issues because the remedy would be the same-a new
The State erred in commenting on Defendant's
right to counsel
New Mexico courts have long held that a prosecutor is
prohibited from commenting on a defendant's right to
remain silent, which is protected under Miranda v.
Arizona, 384 U.S. 436 (1966). See Miller,
1966-NMSC-041, ¶ 30. Three rationales underlie this
prohibition. First, the right against compelled
self-incrimination under the Fifth Amendment to the United
States Constitution prohibits the prosecution from
"ask[ing] the jury to draw an adverse conclusion from
the defendant's failure to testify." State v.
DeGraff, 2006-NMSC-011, ¶ 8, 139 N.M. 211, 131 P.3d
61. Second, the Due Process Clause of the Fourteenth
Amendment to the United States Constitution protects
post-Miranda silence. Id. ¶ 12;
see also Doyle v. Ohio, 426 U.S. 610, 618-19 (1976)
(holding that "it would be fundamentally unfair"
and a denial of due process protected by the Fourteenth
Amendment to allow post-Miranda silence to be used
in a state criminal trial "to impeach an explanation
subsequently offered at trial"). Third, as a matter of
New Mexico evidentiary law, "[b]ecause silence is often
too ambiguous to have great probative force and may be given
improper weight by a jury, evidence of a defendant's
silence generally is not admissible as proof of guilt."
DeGraff, 2006-NMSC-011, ¶ 15; see also
State v. Lara, 1975-NMCA-095, ¶ 8, 88 N.M. 233, 539
P.2d 623 (holding that comments on a defendant's silence
were prejudicial, of minimal probative value, and would
Similarly, eliciting testimony or commenting on a
defendant's exercise of his or her right to counsel is
also reversible error. Callaway, 1978-NMSC-070,
¶ 10; see also United States v. McDonald, 620
F.2d 559, 564 (5th Cir. 1980) ("It is impermissible to
attempt to prove a defendant's guilt by pointing
ominously to the fact that he has sought the assistance of
counsel."). "Comments that penalize a defendant for
the exercise of his right to counsel and that also strike at
the core of his defense cannot be considered harmless
error." McDonald, 620 F.2d at 564; see also
United States v. Liddy, 509 F.2d 428, 443-44 (D.C. Cir.
1974) (noting with approval the district court's jury
instruction "prohibiting the drawing of an adverse
inference from the mere fact of hiring an attorney, at least
when the circumstances are such that admission of evidence of
such a request provokes the possibility that it will be taken
The line of questioning at issue in this case is as follows:
Q. [The prosecutor] After making the arrest of Jack, what did
you do next in your investigation?
A. [The detective] Once he was arrested, [Defendant's
son] was arrested a short time later driving up to Jack's
residence. From that point, I proceeded back to the police
department to conduct interviews.
Q. Okay. And -- now, after you made these arrests and after
you went back to the station to conduct interviews, Jack
McDowell had already invoked his right to counsel, correct?
A. No. He did that when I went to interview him in the
Q. But he did invoke his right to counsel, correct?
Q. After that, what you know as an officer, what are you to
do when ...