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State v. Sena

Court of Appeals of New Mexico

February 14, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
RICHARD SENA, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Stephen K. Quinn, District Judge.

          Hector H. Balderas, Attorney General Santa Fe, NM Jane A. Bernstein, Assistant Attorney General Albuquerque, NM for Appellee.

          Bennett J. Baur, Chief Public Defender Allison H. Jaramillo Santa Fe, NM for Appellant.



         {¶1} A jury convicted Defendant Richard Sena of criminal sexual penetration (CSP), kidnapping, armed robbery, aggravated burglary, and criminal sexual contact (CSC). Defendant was sentenced to a term of forty years and six months. He appeals his conviction, alleging five separate assertions of error. First, Defendant claims the district court erred in failing to grant a mistrial following the State's comments during closing arguments about Defendant's demeanor during the testimony of Victim. Defendant next alleges that the district court failed to properly instruct the jury on the kidnapping charge by omitting the requirement that the State prove that Defendant's restraint of Victim was not incidental to the commission of another crime. Third, Defendant contends that the State failed to present sufficient evidence to support his convictions for first degree CSP and kidnapping. Fourth, Defendant argues his convictions for both aggravated burglary and CSP or CSC violate double jeopardy. Finally, Defendant argues the district court abused its discretion in admitting expert testimony regarding DNA evidence. We conclude that Defendant's convictions for both aggravated burglary and CSP/CSC violate double jeopardy and vacate Defendant's aggravated burglary conviction. Further, because the jury was not properly instructed on kidnapping, we remand to the district court for a new trial on that count. We affirm Defendant's convictions on all other counts.

         I. BACKGROUND

         {¶2} Victim, a seventy-three-year-old woman, awoke to an intruder, whom she identified at trial as Defendant, holding his gloved hand over her mouth and pointing a knife at her head. When she attempted to scream, Defendant threatened to kill her if she did not keep quiet. Defendant ordered her to get out of bed and take off her pajamas. Victim obeyed. Defendant asked where he could find Victim's purse, and she directed him to her closet where he retrieved the purse and took Victim's wallet. Victim informed Defendant that she needed to use the restroom, and she was permitted to walk to the restroom with Defendant following close behind. Once there, Defendant masturbated while Victim used the restroom. Defendant then directed Victim-still unclothed-to return to the bedroom and lie face down on the bed. Once Victim did so, Defendant penetrated her with his penis both vaginally and anally while she was lying on the bed. Victim also testified that Defendant fondled her breast and vaginally penetrated her with his fingers.

         {¶3} Defendant left the bedroom after approximately an hour, and Victim made two attempts to get up from the bed. The first was unsuccessful, as Defendant was still in the living room and warned her to get back on the bed. Victim complied, and lay on the bed a while longer before again trying-this time successfully-to get off of the bed. When Victim entered the living room, she discovered her front door was standing open and her two cordless home phones, her wallet, and her rifle were gone. She locked the front door, put on a robe, and used her cell phone to call 911. Defendant never struck Victim, but she testified she felt as though she could not leave while he was in her home.

         {¶4} The police arrived at Victim's home within a few minutes of her 911 call. Once there, the police discovered footprints in the mud outside Victim's window. They followed the footprints leading away from the house, ultimately arriving at another house in town approximately an hour and a half later where they found Defendant hiding in the back yard with socks on but without any shoes. The police found sneakers with tread matching the footprints outside Victim's home and a dark-colored, hooded sweatshirt at the house where Defendant was hiding. In a vehicle parked outside the home, the officers also found leather work gloves matching those described by Victim.

         {¶5} Later that morning, Victim underwent a sexual assault examination, during which the Sexual Assault Nurse Examiner (SANE) found no injuries during an external examination, but did discover that Victim had a half-centimeter "open area" that was "consistent with force." The SANE also collected various swabs from Victim and Defendant. These items were subjected to DNA testing, along with two sheets from Victim's bed and Defendant's boxer shorts.

         {¶6} During closing arguments, the State drew the jury's attention to Defendant's demeanor during Victim's testimony, stating, "did you notice also, ladies and gentlemen, when she testified, that man wouldn't even look at her. He watched every other witness on the stand." At that point, defense counsel objected and moved for a mistrial, arguing that the State was commenting on Defendant's silence and that there was no evidence in the record regarding what Defendant did or did not do while Victim was testifying. The court overruled Defendant's objection, but stated in open court that "the jury will have to rely on their own memories as to what they observed." The State resumed its closing argument stating, "Did you watch him in the courtroom when she took the stand? He wouldn't even look at her. He looked at every other witness in the eye, but he wouldn't look at her. And why wouldn't he look at her? Because he knew what he'd done. He knew what he did."


         A. The Prosecutor's Closing Argument Comments About Defendant's Demeanor

         {¶7} We review the denial of Defendant's motion for mistrial based on prosecutorial misconduct for an abuse of discretion. See State v. Fry, 2006-NMSC-001, ¶ 50, 138 N.M. 700, 126 P.3d 516. An abuse of discretion occurs where the district court acts "in an obviously erroneous, arbitrary, or unwarranted manner." Id. (internal quotation marks and citation omitted). Defendant argues that the prosecutor's action of calling the jury's attention to Defendant's demeanor during Victim's testimony was equivalent to commenting on facts not in evidence. Further, Defendant contends that because he chose not to testify, it was reversible error for the State, during closing argument, to attribute a testimonial value to Defendant's demeanor during Victim's testimony, thereby suggesting Defendant's demeanor was testimonial or somehow relevant to the issue of guilt or innocence. The propriety of a prosecutor's comments on the courtroom demeanor of a defendant who elects not to testify is an issue of first impression in New Mexico.

         {¶8} Although no New Mexico appellate court has addressed this issue, state and federal courts throughout the country have ruled on the propriety of commenting on a non-testifying defendant's courtroom demeanor. A majority of jurisdictions disallow such comments, though their reasons for doing so vary. Some courts reason that such comments are not probative of the issue of guilt or innocence, some equate them to argument of facts not in evidence, some rely on a combination of both those reasons, and some simply characterize them as improper without any additional analysis.

         {¶9} Several states take a broad view when disallowing comment on a non-testifying defendant's demeanor by reasoning that it is not probative of the issue of guilt or innocence. See Hughes v. State, 437 A.2d 559, 572 (Del. 1981) (concluding that the prosecution's comments on the defendant's courtroom demeanor were improper, explaining that they are "irrelevant" and "pregnant with potential prejudice"); Commonwealth v. Young, 505 N.E.2d 186, 188-90 (Mass. 1987) (distinguishing between permissible general comments on a defendant's courtroom demeanor and improper comments on demeanor that encourage an inference of guilt, stating that "a prosecutor should never argue that an inference of guilt should be drawn from proper conduct"). Other states take a more formalistic evidentiary approach by reasoning that a prosecutor's comments about a non-testifying defendant's demeanor amount to argument of facts not in evidence. See State v. John B., 925 A.2d 1235, 1243 (Conn. App. Ct. 2007) (concluding that the prosecution's reference to the defendant's courtroom demeanor was improperly based on "matters extrinsic to the evidence" where the defendant did not testify and, aside from witness identifications, his presence in the courtroom was not otherwise introduced into evidence); State v. Smith, 984 P.2d 1276, 1286 (Haw. Ct. App. 1999) (stating that "[u]nless and until [the defendant's] reaction during the trial was lawfully introduced as evidence, it was not a proper subject for argument to the jury" and concluding that comments on the defendant's reaction violated his right to have his guilt or innocence determined solely on the basis of the evidence presented at trial); People v. Foss, 559 N.E.2d 254, 256 (111. App. Ct. 1990) (concluding that the prosecutor's invitation during opening statement that the jury consider the defendant's demeanor was improper because the defendant's "demeanor, in any respect other than when he is testifying, does not constitute evidence"). Some states rely on both reasons for disallowing comment on anon-testifying defendant's demeanor. See Mayberry v. State, 830 S.W.2d 176, 178 (Tex. App. 1992) ("Because a defendant's nontestimonial demeanor is not evidence, it provides no basis for reasonable deductions from the evidence. Courtroom demeanor is simply irrelevant to the issue of guilt."); see also People v. Heishman, 753 P.2d 629, 662-63 (Cal. 1988) (stating that prosecutorial references to a non-testifying defendant's demeanor or behavior in the courtroom are improper because demeanor evidence (1) is relevant only as to the credibility of a witness, (2) infringes on a defendant's right not to testify, and (3) "violates the rule that criminal conduct cannot be inferred from bad character"), abrogated on other grounds by People v. Diaz, 345 P.3d 62, 69 (Cal. 2015).

         {¶10} Other states simply characterize comments on the demeanor of a non-testifying defendant as improper without expounding on their reason for doing so. See Pope v. Wainwright, 496 So.2d 798, 802 (Fla. 1986) (acknowledging that "comments on a defendant's demeanor off the witness stand are clearly improper"); Good v. State, 723 S.W.2d 734, 738 (Tex. Crim. App. 1986) (en banc) (concluding that a prosecutor's comments regarding a defendant's nontestimonial courtroom demeanor are improper). Further, some federal courts have similarly concluded that a comment on a non-testifying defendant's courtroom demeanor constitutes error-either based on a violation of the defendant's constitutional rights or because it holds no weight in a consideration of guilt or innocence. See United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008) (holding that courtroom demeanor of a non-testifying defendant is "an improper subject for comment by a prosecuting attorney" because it is "not in any sense legally relevant to the question of his guilt or innocence" (internal quotation marks and citation omitted)); United States v. Schuler, 813 F.2d 978, 981 (9th Cir. 1987) (concluding that "in the absence of a curative instruction from the court, a prosecutor's comment on a defendant's off-the-stand behavior constitutes a violation of the due process clause of the [F]ifth [A]mendment"); United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984) (concluding that the prosecutor was not free to comment on the defendant's behavior off the witness stand, as "a prosecutor may not seek to obtain a conviction by going beyond the evidence before the jury" and the defendant's behavior off the witness stand was not evidence subject to comment (internal quotation marks and citation omitted)); United States v. Carroll, 678 F.2d 1208, 1209-10 (4th Cir. 1982) (concluding that where the prosecution "describes the courtroom behavior of a defendant who has not testified, and then goes on to tell the jury that it may consider that behavior as evidence of guilt, " the prosecutor violates the defendant's Fifth and Sixth Amendment rights); United States v. Wright, 489 F.2d 1181, 1186 (D.C. Cir. 1973) (rejecting the idea that the defendant's "courtroom behavior off the witness stand is in any sense legally relevant to the question of his guilt or innocence").

         {¶11} A minority of jurisdictions, however, allow the prosecutor to comment on the courtroom demeanor of a non-testifying defendant. See Shaw v. State, 207 So.3d 79, 126-27 (Ala.Crim.App.2014) (characterizing the prosecution's comments that the defendant "never shed a tear" and "didn't care at all" throughout the presentation of photographic evidence during trial as proper, reasoning that the comments were aimed at the defendant's demeanor, not his failure to testify (internal quotation marks omitted)); Armstrong v. State, 233 S.W.3d 627, 638 (Ark. 2006) (finding no reversible error where the prosecution directed the jury to recall the defendant's reaction to photographic evidence, but acknowledging that the prosecution was limited to evidence in the record and that a defendant's face and body are physical evidence); Smith v. State, 669 S.E.2d 98, 104 (Ga. 2008) (stating that "it is not improper for the prosecutor to comment in closing argument on a non-testifying defendant's appearance and facial expressions"); Hunt v. Commonwealth, 304 S.W.3d 15, 38 (Ky. 2009) ("A prosecutor is entitled to comment on the courtroom demeanor of a defendant."); State v. Brown, 358 S.E.2d 1, 15 ( N.C. 1987) (finding no error in the prosecution's comments on the defendant's courtroom demeanor because it "calls to the jurors' attention the fact that evidence is not only what they hear on the stand but what they witness in the courtroom"); see also State v. Lawson, 595 N.E.2d 902, 911 (Ohio 1992) (applying the rule that a "defendant's face and body are physical evidence" to reach the conclusion that it was "permissible for the prosecution to comment on the accused's physical appearance" (internal quotation marks and citation omitted)).

         {¶12} We agree with the majority of jurisdictions and hold that commenting on the demeanor of a non-testifying defendant is improper, as it is neither probative of innocence or guilt, nor is it evidence that an appellate court can properly review. (13} In New Mexico, we afford trial judges broad discretion in managing closing argument because they "are in the best position to assess the impact of any questionable comment." State v. Sosa, 2009-NMSC-056, ¶ 25, 147 N.M. 351, 223 P.3d 348. The prosecution has similarly wide latitude during closing arguments. See State v. Smith, 2001-NMSC-004, ¶ 38, 130 N.M. 117, 19 P.3d 254. A prosecutor's remarks must, however, be based on the evidence or made in response to the defendant's arguments. Id.

         {¶14} In this case, the State's comments were not based on the evidence. Nothing in the record suggests Defendant's behavior or demeanor during trial came into evidence. In addition to arguing a fact not in evidence, we further note the prosecutor in this case encouraged the jury to infer guilt from Defendant's courtroom demeanor. Such an inference is particularly troubling where we perceive no impropriety in the demeanor that was the subject of the comments. The prosecutor suggested the jury draw just such an inference in this ...

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