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State v. McDowell

Supreme Court of New Mexico

January 4, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
JOHN N. "JACK" McDOWELL, JR., Defendant-Appellant.

         APPEAL 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

          Hector H. Balderas, Attorney General Laura Erin Horton, Assistant Attorney General Santa Fe, NM for Appellee

          OPINION

          EDWARD L. CHÁVEZ, Justice

         {1} 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         {2} 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 Chavez.

         {3} 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 trial.

         II. DISCUSSION

         A. The State erred in commenting on Defendant's right to counsel

         {4} 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 require reversal).

         {5} 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 as self-incriminatory").

         {6} 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 interview room.
Q. But he did invoke his right to counsel, correct?
A. Yes.
Q. After that, what you know as an officer, what are you to do when ...

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