Within eight days of each other, two cases were released where the state Supreme Court decided to send state prosecutors and the A.G.'s office a little message. (See State v. Lopez, decided on June 21, 2007, and State v. Gutierrez, decided on June 13, 2007). That little message is contained on the 460th page of the 92nd Reporter. And when I say the Supreme's sent a message, I don't mean just a little cite to the 460th page of the 92nd Reporter, NOOOOOOOOOOO, the Supremes decided to spell out an entire paragraph contained on the above-mentioned page of the above-mentioned reporter. Let's just say I think the Supreme's, Serna and Chavez to be specific, wanted a message to be sent to prosecutors and attorney generals in New Mexico.
In Gutierrez, the Supreme's stated that a remand was needed because the error in that case was not harmless, and in Lopez, although the Court concluded that the error in that case was harmless, Justice Chavez's dissent leaves little doubt as to how the Court will look at the whole harmless error analysis from now on. As mentioned above, in both cases the A.G.'s office argued that the error was harmless beyond a reasonable doubt. However, in deciding that the error was not harmless beyond a reasonable doubt in Gutierrez (as well as the dissent in Lopez), the Supreme Court decided to SPELL OUT IN WHOLE that paragraph on page 460 of the 92nd reporter. It reads:
"The zeal . . . of some prosecuting attorneys, tempts them to an insistence upon the admission of incompetent evidence,or getting before the jury some extranneous fact supposed to be helpful in securing a verdict of guilty . . .
When the error is exposed on appeal, it is met by the stereotyped argument that it is not apparent [that the error] influenced the minds of the jury. The reply the law makes to such suggestion is: that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmless . . .[T]he presumption is to be indulged, in favor of the liberty of the citizen, that whatever the prosecutor, against the protest of the defendant, has laid before the jury, helped to make up the weight of the prosecution which resulted in the verdict of guilty." State v. Frank, 92 N.M. 456, 460.
And the other cite that the Supreme's, as well the Court of Appeals, have been busting out all over the place lately is this blast from the past: "We emphasize that constitutional error must not be deemed harmless solely based on overwhelming evidence of Defendant's guilt; the overall strength of the prosecution's case is but one factor in our harmless-error analysis."
Jiminy crickets---harmless error is dead. Or maybe not. Maybe, just maybe, the appellate courts are sending the A.G.'s a message---(1) the harmless error argument is being a little overused and will not substitute for good ol' legal analysis, and (2) the "overwhelming evidence" kicker to your harmless error analysis is a little bit overused and will not substitute for good ol' legal analysis. (Although, Maes did buy the harmless argument in the Lopez case, doing some damn fine analysis along the way to show that the evidence complained of in that case was just cumulative, and therefore truly harmless (who are her clerks?). Chavez's dissent in that case leaves me flat, and a little lost, and that's strange since he's been on top of everything else this year.)
Anyway, enough, here are the issues and holdings in those opinions:
State v. Gutierrez, June 13, 2007 (Author: Serna) (Concurring: Chavez, Bosson, Minzner, and Maes)
Facts: Mad-Dog Stalker guy won't leave ex-girlfriend alone, police catch up to him and he runs, after they catch him they ask him to take a polygraph, mad-Dog Stalker guy says "no." Prosecutor mentions the fact that Mad-Dog Stalker guy refused to take a polygraph in his opening statement to the jury, defense counsel says "mistrial", district judge says "no" and "I'll give curative instruction", defendant is convicted and defendant appeals.
Issue 1: Did the trial court err when it denied the defendant's motion for a mistrial based on the prosecutor's comment in opening statements that the defendant refused to take a polygraph?
Issue 1 Holding: Yes, the district court erred and should have granted a mistrial. A curative instruction in this instance was insufficient. The Court holds that a prosecutor's comments on a defendant's (1) refusal to take a polygraph, or (2) a statement that a defendant took and failed a polygraph is an improper comment directly relates to guilt and implicates a defendant’s fifth amendment right not to incriminate himself.
Issue 2: Was the Prosecutor's statement regarding the Defendant's refusal to take a polygraph harmless error?
Issue 2 Holding: No, the Prosecutor's statement was not harmless error. Although there was strong evidence to support the Defendant's guilt, the Court looks to the timing of the statement to analye whether there was error. Here, the statement occurred during opening statements and the Court rules that a statement of this kind and at that stage of the proceedings is highly prejudicial. The Court also rules that no curative instruction in this case could have assisted the jury to get the idea that the defendant had refused to take a polygraph out of their minds. No matter how vague or direct the curative instruction was, it would not have worked in this case. The Court holds that such a comment was so highly prejudicil as to be almost per se reversible error.
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State v. Lopez, June 21, 2007 (Author: Maes) (Concurring: Serna, Minzner) (Concurring and Dissenting in part: Chavez and Bosson)
Facts: Sad, Sad case and extremely brutal. My thoughts go out to all the legal professionals who had to work on this case. A mother passes out after drinking 2 to 5 beers. Some relatives take her newborn child and throw her up so high that her head hits the ceiling and she also hits the floor. Some report of sexual abuse to the child, as well as old injuries that mother was aware of and also took part in inflicting. Child dies due to numerous injuries. Mother goes to trial with other codefendant's but moves for severance because she does not want some of the statements that her codefendants gave to be used in her trial. The court denies the severance. At trial, The physical evidence, as well as statements given by the mother herself, give support to the charges facing mother (negligent child abuse resulting in death and so forth). The State enters statements from codefendant's regarding the events on the night of the child's death as well as prior occasions that child was injured. Those codefendant's do not testify at trial. Mother's lawyer objects pursuant to Crawford and the Confrontation Clause. Court overrules objection, Defendant is convicted and appealed.
Issue 1: Was the prejudice to the defendant sufficient enough that she should be afforded a seperate trial due to the state introducing statements made by her codefendants in their joint trial?
Issue 1 Holding: No, the statements made by defendant's codefendants that were introduced at their joint trial were cumalative and therefore constitute harmless error and thus the defendant is not entitled to a seperate trial. The court first proceeds to determine that the statements introduced at trial were in violation of Crawford and therefore violated the defendant's conrontation rights. The statements violate Crawford because they are testimonial in that they were given to law enforcement for the express purpose of being later used at trial, and the defendant did not have the ability to cross-examine the peron who made the statements regarding the statements at issue. Thus, the district court erred in admitting the statement into evidence in defendant's trial. If the defendant would have stood trial alone, the statements by themselves would have not been adnitted into evidence, and therefore it was error to admit them in defendant's joint trial with her codefendants.
However, a close review of the codefendants' statements that were introduced in the joint trial indicate that the statements were all redundant of (1) the physical evidence, and (2) the defendant's own statements. Furthermore, where the statements are not redundant of other evidence, they are silent on defendant's culpability. Therefore, the Court holds that although the statements were erronously admitted, they constituted harmless error.
Issue 1 Dissent: (Author: Chavez) (Concurring: Bosson): The lynchpin of Chavez's dissent is the rule outlined in State v. Johnson, 136 N.M. 348, which is: the harmless error analysis should be conducted with an eye toward "whether there is a reasonable possibility the erronous evidence might have afcted the jury's verdict." In this case, Justice Chavez says that the statements cold have reasonably had some iace on the culpability of the defendant, and thus their admission was not harmles error. Chavez makes this point even while he is agreeing with the State's take that the defendant's statement's were either silent on mother's guilt or cumulitive of other evidence.
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