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6
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 7
STATE OF NEW MEXICO, 8

Plaintiff

- Appellee, 9

v. No. A

- 1

- CA

- 36091 10
JERRY KENNEDY, JR., 11

Defendant

- Appellant. 12

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Briana Zamora, District Judge 14

Hector H. Balderas, Attorney General 15 Santa Fe, NM 16 Laurie Pollard Blevins, Assistant Attorney General 17 Albuquerque, NM 18
for Appellee 19

D. Eric Hannum 20 Albuquerque, NM 21
McCleary & Richter

- Freund 22 Mary McCleary 23 Albuquerque, NM 24
for Appellant 25

MEMORANDUM OPINION 262

GALLEGOS, Judge Pro Tempore

. 1

{1} Defendant Jerry Kennedy, Jr., appeals from the district court’s affirmance of 2
his convictions after a jury trial in metropolitan court for driving while intoxicated 3
(DWI) , speeding, and resisting arrest

. The issu e before this Court is two

- fold: (1) 4

whether the S tate ’s comment s in closing arguments bearing upon Defendant’s 5

silence violate hi s constitutional privilege against self

- incrimi n ation and right to 6
due process
, and (2) whether the metropolitan court erred in denying Defendant’s 7

motion for a mistrial on that basis. We co nclude that while the State infringed upon 8

Defendant’s right to due process, its comments nevertheless did not deprive 9

Defendant of a fair trial. We therefore affirm. 10

BACKGROUND 11

{ 2 } W hile driving the speed limit on San Mateo Boulevard at approximately 12
8:00 p.m. on December 8, 2014
, Albuquerque Police Officer Charles W. Miller 13

noticed a blue truck and a black Honda “going well faster than” his vehicle. 14
Although the blue truck and black Honda appeared to be going the same speed, 15
Officer Miller pulled ov er the black Honda as it was closer to his vehicle

. During 16
the traffic stop, Officer Miller observed that the driver of the black Honda , Jessica 17

Villalobos, was exhibiting signs of intoxication. While administering field sobriety 18

tests (FSTs) to Ms. Villalobos as part of a DWI inv estigation , Officer Miller saw 19
the blue truck drive past their location and park about three houses away on the 203

right side of the street

. The driver got out of the truck , “went to the right real quick 1
and then across the street to the left as [Officer Miller looked] southbound down 2

the street.” Although Officer Miller could not see their fac es, he noticed that the 3
driver and another person were standing outside and appeared to be talking and 4
pointing in Officer Miller’s direction. Officer Miller did not see either individual 5
drinking, eating, or smoking. 6

{ 3 } Approximately nine to ten minutes later, Defendant walked down the street 7
toward Officer Miller. Defendant approached Officer Miller and asked him about 8
posting bond for Ms. Villalobos. While speaking with Defendant, Officer Miller 9
noticed a strong odor of alcohol coming from Defendant, a nd also observed that 10
Defendant’s eyes were bloodshot and his speech was “dragged, if not slurred, at 11

times.” Defendant confirmed both that he was driving the blue truck and that he 12
was the person driving in front of Ms. Villalobos. Officer Miller then asked 13
Defendant whether he had consumed alcohol that evening, to which Defendant 14
responded that he drank a couple of beers around lunchtime

. 15

{ 4 } At that point, suspecting Defendant of DWI , Officer Miller asked Defendant 16
to undergo a ser ies of FSTs. Following Defendant’s poor performance on the 17

FSTs, Officer Miller told Defendant to turn around and put his hands behind his 18
back. As Officer Miller approached , Defendant yelled an expletive and r an away. 19

Officer Miller caught
, physically restrained, and handcuffed Defendant . Officer 204

Miller then placed Defendant inside a patrol car

. After having another officer 1
transport Defendant to jail, Officer Miller administered a breath alcohol content 2
(BAC) test to Defendant

. Results from Defendant’s breath samples revealed a 3

BAC of 0.14 and 0.13. Defendant was charged with DWI , speeding, and resisting 4

arrest. 5

{ 5 } At trial in metropolitan court, defense counsel told the jury in his opening 6
statement that although Defendant consumed t w o beers earlier in the day, “there 7
will be no evidence that he was intoxicated or impaired to any degree when he was 8
driving.” Defense counsel explained that after driving and parking his vehicle, 9
“[Defendant] went to my witness’s, James Chavez, his friend , they live in the same 10
neighborhood, to pay him some money and he consumes some alcohol there.” 11

D uring the defense case, Mr. Chavez testified that Defendant went to his house 12
around 8:00 p.m. and consumed a couple of shots of Jack Daniels whiskey and a 13
beer during the fifteen to twenty minutes he was there. Mr. Chavez testified that 14
Defendant wanted a cigarette and walked across the street to Mr. Chavez’s 15

brother’s house to get one , and never returned

. Defendant himself did not testify. 16

{ 6 } During closin g argument, the State argued : 17
[Defendant] didn’t tell Officer Miller on December 8 of 2014 that he 18 had just had a large amount of alcohol to drink. And if you’re being 19 investigated for DWI, I think it’s a fact that might ’ve come up at that 20 time. W hen [Defe ndant] was being placed under arrest that would’v e 21 been a very good time to say “ Wait no let me explain. I was driving, 22 but I drank after the fact. ” Instead he

— 235

At that point, Defendant moved for a mistrial, arguing that the State was asserting 1

that Defendant had a duty to explain himself. The State responded, “I’m not saying 2
there’s a duty, judge. I’m saying that using reason and common sense, it might’ve 3
come up at this time. I do believe [defense counsel] has opened the door directly to 4

this line of argument.” After the metropolitan court stated it was not ready to 5
declare a mistrial, defense counsel asked the metropolitan court “to caution the 6
district attorney not to comment on my client’s right to remain silent.” The State 7
explained that he had not done so, but was instead “talking about the date of the 8
arrest.” The metropolitan court stated, “Defendant has the right to remain silent. He 9
could have indicated to the officer that he had a drink earlier but I think you need 10

to be careful with that a rgument.” During rebuttal, the State argued , without 11
objection , “If you truly believe that [Defendant] drove to his friend’s house, 12
consumed several shots of Jack Daniels and a beer, then approached Officer 13
Miller, and at no point in time during the invest igation thought to tell Officer 14
Miller that he had drank after he had driven, you know, you should find him not 15
guilty. However, I don’t think with all the facts in front of us that that creates a 16

reasonable doubt.” 17

{ 7 } Following the jury’s guilty verdict on all counts, Defendant appealed to the 18

district court. The district court affirmed the metropolitan court’s judgment and 19

sentence . In its memorandum opinion, the district court concluded that because 206

Defendant did not argue Officer Miller gave Defendant his warnings
, pursuant to 1

Miranda v. Arizona , 384 U.S. 436 (1966) , “[t]he [State’s] comment is, therefore, 2
not a reference to post

- Miranda silence and did not otherwise invade a direct 3
constitutional protection. See [ State v. ] Sosa , 2009

- NMSC

- 056, ¶ 26[, 1 47 N.M. 4

351, 223 P.3d 348 ]

. ” The district court also concluded that the State’s comment 5
was “isolated and brief[,]” and Defendant “invited the State’s comment by setting 6

forth the drank

- after

- driving defense in opening statements and presenting the 7

witness testimony to support it.” 8

DISCUSSION 9

{ 8 } Defendant appeals from the district court’s on

- record affirmance of the 10
metropolitan court ’s judgment and sentence

. On appeal to this Court, Defendant 11
challenges the metropolitan court’ s denial of his motion for a mistrial on grounds 12

that the State commented on his silence in violation of his privilege against self

13

incrimination and his right to due process

. 14

I

. Standard of Review 15

{ 9 } “For on

- record appeals the district court acts as a typical appellate court, 16

with the district court simply reviewing the record of the metro [ politan] court trial 17
for legal error.” State v. Hall , 2016

- NMCA

- 080, ¶ 7 , 380 P.3d 884 (internal 18
quotation marks and citation omitted) . “In subsequent appeals such as this, we 19
apply the same stand ards of review employed by the district court.” Id. (internal 207

quotation marks and citation omitted). “Where the error is preserved, we review a 1

district court’s denial of a motion for mistrial on the basis of remarks made in 2
closing argume nt for an abuse o f discretion.” State v. Ramos

- Arenas , 2012

- 3

NMCA

- 117, ¶ 1 6 , 290 P.3d 7 33 (alteration s , internal quotation marks, and 4
citations omitted)

. “An abuse of discretion exists when the [district] court acted in 5
an obviously erroneous, arbitrary, or unwarranted manner.” State v. Fry , 2006

- 6

NMSC

- 001, ¶ 50, 138 N.M. 700, 126 P.3d 516 (alteration, internal quotation 7
marks, and citation omitted). “If a mistrial is denied, a new trial may be ordered on 8

a ppeal unless the [s] tate can show the error is harmless.” State v. DeGraff , 2006

- 9

NMSC

- 011, ¶ 12 , 139 N.M. 211, 131 P.3d 61

. “In the absence of a timely 10
objection from a defendant, comments on a defendant’s exercise of his or 11

her

. . . right to remain silen t[] are reviewed for fundamental error.” Id

. 12

{1 0 } Defendant objected to the State’s fi rst comment during closing argument. 13

Defendant failed , however, to do so after the State’s second com ment during its 14

rebuttal argument. However, we ultimately conclude that the result here would be 15
the same regardless of whether we review for abuse of discretion or fundamental 16

error. T herefore , in order to simplify our analysis, we will treat both comments as 17
having garnered timely objections , and we review the me tropolitan court’s denial 18

of Defendant’s motion for a mistrial for abuse of discretion

. To the extent that this 19
requires us to resolve Defendant’s argument that the State improperly commented 208

on his silence , our review is de novo

. See id

. ¶ 6 (explaining that the issue of 1

whether the state’s comments on a defendant’s silence violated his constitutional 2
rights “raise[s] questions of constitutional law, which we review de novo”). 3

II

. The Metropolitan Court Did Not Abuse Its Discretion in Den ying 4 Defendant’s Motion for a Mistrial 5

{1 1 } When reviewing whether the State’s comments during closing arguments 6
warrant reversal, three factors “carry great influence in our deliberations: (1) 7

whether the statement invades some distinct constitutional protection; (2) whether 8
the statement is isolated and brief, or repeated and pervasive; and (3) whether the 9
statement is invited by the defense.” Sosa , 2009

- NMSC

- 056, ¶ 26 . “These three 10

factors are useful guides, but in the final analysis context is paramount.” Id. ¶ 34. 11
These factors are applied by our courts when reviewing for either an abuse of 12

discretion or fundamental error. See id. ¶ 2 6 (“We have reviewed over 30 years of 13
appellate decisions regarding challenges to closing arguments under both standards 14

of review, and we discern three factors that appear to carry great influence[.]”). 15
“Our courts also consider whether the evidence of guilt is overwhelming, whether 16
the improper statement is corrected by counsel or limited by the court, or whether 17
the fact manipulated by the statement is determinative to the outcome of the case.” 18

State v. Sena , 2018

- NMCA

- 037, ¶ 17, 419 P.3d 1240

. “The common thread 19
running through the cases finding reversible error is that the [s tate’s] comments 20
materially altered the trial or likely confused the jury by distorting the evidence, 219

and thereby deprived the accused of a fair trial.” Id . (alteration , internal quotation 1

marks, and citation omitted). We co nsider each of the se factors in turn. 2

A

. T he State’s Comment s Invaded a Distinct Constitutional Protection 3

{1 2 } “New Mexico courts have long held that a prosecutor is prohibited from 4
commenting on a defendant’s right to remain silent [

. ] ” State v. McDowell
, 2018

- 5

NMSC

- 008, ¶ 4
, 411 P.3d 337

. “There are three independent underpinnings for 6
[this prohibition] : (1) the constitutional privilege against self

- incrimination, (2) 7
constitutional due process, and (3) the rules of evidence barring irrelevant 8

evidence

. . . and evidence whose probative value is substantially outweighed by 9
the danger of unfair prejudice [

. ] ” State v. Foster , 1998

- NMCA

- 163, ¶ 9, 126 N.M. 10

177, 967 P.2d 852 (citation omitted)

. 11

1. The State Commented on Defendant’s Silence 12

{1 3 } “ W e first consider whether the [state] commented on [the d]efendant’s 13

silence [

. ] ” DeGraff

, 2006

- NMSC

- 011, ¶ 7. In so doing, we “consider whether the 14
language used [by the state] was manifestly intended to be or was of such a 15
character that the jury would nat urally and necessarily take it to be a comment on 16
the [defendant’s] exercise of his or her right to remain silent.” Id. ¶ 8 (internal 17
quotation marks and citation omitted). “We evaluate the statement in context to 18
determine the manifest intention that prompted the remarks as well as the natural 19
and necessary impact upon the jury.” Id. (internal quotation marks and citation 2010

omitted). “Where comments by the prosecutor are ambiguous, we consider what 1
inference the jury was asked to draw from the defendant’s silence and the propriety 2

of that inference.” Id . ¶ 9. 3

{1 4 } In the case before us, we are dealing with two separate comme nts by the 4

State. The first comment by the prosecutor occurred during the State’s closing 5

argument: 6
[Defendant] didn’t tell Officer Miller on December 8 of 2014 that he 7 had just had a large amount of alcohol to drink. And if you’re being 8 investigated for D WI, I think it’s a fact that might’ve come up at that 9 time. When [Defendant] was being placed under arrest that would’ve 10 been a very good time to say “Wait no let me explain. I was driving, 11 but I drank after the fact.” Instead he

— 12

The second comment, utte red during the State’s rebuttal, was that Defendant “at no 13
point in time during the investigation thought to tell Officer Miller that he had 14

drank after he had driven.” 15

{1 5 } Our Supreme Court has determined that comments similar to those made in 16

this case were comments on the defendant’s silence. See i d. ¶¶ 3

- 4, 9. In DeGraff
, 17
the state argued in closing argument that the defendant’s failure to tell the police 18
that he killed the victim to defend himself from the victim’s “sexual advances,” 19
indicated that the defendant’s subsequent explanation to that effect was fabricated. 20

Id. ¶¶ 3

- 4. Our Supreme Court held that this comment was “implicitly ask[ing the 21
jury] to reject [the d]efendant’s self

- defense explanation because [the d]efendant 22
did not offer it immediately[,]” thereby “invit[ing] the jury to infer guilt from 2311

silence.” Id. ¶¶ 9

- 10; State v. Hennessy , 1992

- NMCA

- 069, ¶¶ 18

- 19, 114 N.M. 1

283, 837 P.2d 1366 (concluding that the state’s cross

- examination of the defendant 2
regarding his failure to tell the police his alibi before trial was a comment on his 3
silence)
, overruled on ot her grounds by State v. Lucero , 1993

- NMSC

- 064, 116 4

N.M. 450, 863 P.2d 1071

. But cf. Foster , 1998

- NMCA

- 163, ¶¶ 14

- 15 (holding that 5
when a defendant testifies, evidence of inconsistencies between the defendant’s 6
pretrial statements and trial testimony was pr oper). As our Supreme Court has 7
explained, Hennessy and Foster , while seemingly contradictory, “illuminate the 8
difference between a permissible comment on a defendant’s incomplete statement, 9

as in Foster , and commenting on a defendant’s silence, as in Henn essy .” DeGraff
, 10

2006

- NMSC

- 011, ¶ 9. 11

{1 6 } For several reasons, Foster is inapposite here. First, Defendant did not 12
testify and thus the State was not commenting on an inconsistency between 13
Defendant’s testimony and his pretrial statements to the police that he had drank a 14
couple beers around lunchtime . Moreover, as in DeGraff and Hennessy , the State 15
was commenting on Defendant’s silence by highlighting his failure to tell Officer 16
Miller that he drank after driving. The State was thus inviting the jury to infer that 17

Defendant’s drank

- after

- driving defense was fabricated. Consequently, we 18

de termine that the State’s two statements constituted comments on Defendant’s 19

silence. 2012

2. Defendant’s Silence Was Constitutionally Protected 1

{1 7 } To determine whether Defendant’s silence was protected, we must 2
appropriately categorize that silence. “There a re four relevant time periods at 3
which a defendant may either volunteer a statement or remain silent: before arrest; 4
after arrest, but before the warnings required by Miranda

. . . have been given; 5

after Miranda warnings have been given; and at trial. ” DeG raff , 2006

- NMSC

- 011, 6
¶ 11. Categorizing the silence is important because each of these time periods is 7
afforded differing levels of protection. See id . ¶¶ 12

- 14. 8

{1 8 } Defendant present s this case as involving post

- arrest, post

- Miranda silence

. 9
If Defendant is correct, the State’s comments on his post

- Miranda silence violate 10
due process. See DeGraff , 2006

- NMSC

- 011, ¶ 12 (“[D]ue process guaranteed by 11
the Fifth Amendment [to the United States Constitution] protects post

- Miranda 12
silence.”); see als o Doyle v. Ohio , 426 U.S. 610, 617

- 19 (1976) (holding that using 13
a defendant’s post

- arrest, post

- Miranda silence for impeaching the defendant’s 14
testimony at trial is a violation of due process); Wainwright v. Greenfield , 474 U.S. 15

284, 292

- 93 (1986) (holdin g that, as in Doyle , it would be unfair to breach the 16
promise assured in Miranda warnings by using a defendant’s silence as affirmative 17
proof of the defendant’s guilt). 18

{1 9 } The State, however, argues that the silence in this case occurred during the 19

per iod of time following Defendant’s arrest, but before he was read his Miranda 2013

rights. As both sides point out, the question of whether and to what extent the state 1
may use a defendant’s post

- arrest, pre

- Miranda silence as affirmative proof of guilt 2

has not been resolved in New Mexico. See DeGraff , 2006

- NMSC

- 011, ¶¶ 13, 18 3
(noting the lack of New Mexico law on this issue, and assuming for purposes of 4

that case that Miranda warnings were given); State v. G utierrez , 2003

- NMCA

- 077, 5
¶ 10 , 133 N.M. 797, 70 P.3d 787 (same); State v. Garcia , 1994

- NMCA

- 147, 6
¶¶ 10

- 11, 118 N.M. 773, 887 P.2d 767 (assuming for the purposes of that case that 7
the same standard of review applies to post

- and pre

- Miranda silence). Thus, if the 8

S tate is correct, we must determine whether, and to what extent, post

- arrest, pre

9

Miranda silence can be used by the State as affirmative proof of guilt. 1 10

{ 20 } We note the metropolitan court did not make a finding regarding whether 11
Defendant was given his Miranda warnings. However, with the benefit of Officer 12
Miller’s lapel camera footage, we are presented with evidence in the record from 13

which we can determine whether Miranda warnings were given. See State v. 14

1 The United States Constitution does not prohibit the use of post

- arrest, pre

Miranda silence to impeach a testifying defendant at trial. See Fletcher v. Weir
, 455 U.S. 603, 607 (1982) (holding that it is not a violation of due process of law to impeach a testifying defendant with his post

- arrest, pre

- Miranda silence); Foster , 1998

- NMCA

- 16 3, ¶ 13 (explaining that “the privilege against self

- incrimination is no bar to impeaching a defendant’s testimony with evidence of the defendant’s silence

. . . after arrest” (citations omitted) ). However, Defendant did not testify in this case, and there is a division among the federal circuits as to whether the reading of Miranda warnings serves as the line separating post

- arrest silence
, which the state consistent with a defendant’s privilege against self

- incrimination, can and cannot use as substantive evidence. See United States v. Wilchombe , 838 F.3d 1179, 1190 (11th Cir. 2016) (describing the circuit

- split).14

Martinez , 2015

- NMCA

- 051, ¶ 15, 348 P.3d 1022 (e xplaining that “reviewing a 1
video by itself is like reviewing any other documentary evidence, and we are in as 2
good a position as the district court to view the video and interpret what it shows”), 3
rev’d on other grounds
, 2018

- NMSC

- 007, 410 P.3d 186. Foota ge from Officer 4
Miller’s lapel camera reflects the passage of approximately ten minutes from the 5
point at which Defendant first approached Officer Miller to when Officer Miller 6
physically restrained and cuffed Defendant after Defendant attempted to run awa y. 7

Addit ionally, roughly three minutes elapsed from when Officer Miller physically 8

restrained and cuffed Defendant to when Officer Miller placed Defendant inside 9
the patrol vehicle, at which point the lapel camera footage cuts off. During this 10

time, Office r Miller was assisted by another officer. Neither Officer Miller nor any 11
other officer gave Miranda warnings to Defendant during either period. With no 12
evidence to the contrary, we conclude that Defendant was not given his Miranda 13
warnings until, at the ea rliest, after he was placed inside the patrol vehicle

. 14

Therefore, as the State contends, there was indeed a period of time between 15

Defendant’s arrest and when he was presumably given his Miranda rights. 16

{ 2 1} We are not convinced, however, that we are dealing solely with Defendant’s 17
silence during the period following his arrest, but prior to being advised of his 18

Miranda rights. That is, there is nothing that necessarily tethers the State’s 19

comments on Defendan t’s silence to the post

- arrest, pre

- Miranda period. In fact, 2015

the State’s broad references to “December 8” and “during [the] investigation” 1
could very well be seen to encompass the various pre

- arrest, post

- arrest but pre

2

Miranda , and post

- arrest and post

- Mi randa time periods. As such, in categorizing 3
Defendant’s silence, we must assume that the State commented at least indirectly 4

on Defendant’s post

- arrest, post

- Miranda silence. Accordingly, we need not 5
determine the extent to which post

- arrest, pre

- Miranda silence is protected, nor 6
shall we weigh

- in on the ongoing federal split of authority on this question. 7

Instead, given the State’s broad and vague statements during its closing argument 8

and rebutta l, we conclude that the State ’s comments on Defendant’s sil ence 9
invaded a distinct constitutional protection , which weighs in favor of reversal

. 10

{ 22 } We pause to remind the State that it has the burden to prove a defendant’s 11
guilt beyond a reasonable doubt. It is not a defenda nt’s obligation to prove him or 12

herself not guilty. Delving into a discussion about why a non

- testifying defendant 13
remained silent obfuscates this burden. We have previously admonished the State 14
to refrain from engaging in this type of trial stratagem , and we are compelled to do 15
so again today. See Hennessy , 1992

- NMCA

- 069, ¶ 23. 16

B

. The State’s Comment s Were Isolated and Brief 17

{ 23 } “Extensive comment is more likely to cause error, whereas the general rule 18
is that an isolated comment made during closing argument is not sufficient to 19

warrant reversal.” Sosa , 2009

- NMSC

- 056, ¶ 29 ( alteration, internal quotation 2016

marks
, and citation omitte d). This Court has previously concluded that the state’s 1
comments are brief or isolated when they were limited to closing argument and 2
were relatively brief

. See, e .g. , Sena , 2018

- NMCA

- 037, ¶¶ 16, 18 (determining that 3

the state’s comments were isolated and brief when they “were confined to closing 4
argument and were relatively brief”); State v. Landers , 1992

- NMCA

- 131, ¶¶ 11

- 5

12, 115 N.M. 514, 853 P.2d 1270 (concluding there was no re versible error when 6

the state made one improper comment to the jury in closing argument before being 7
admonished by the district court and another after being admonished )
, overruled 8
on other grounds by State v. Kerby , 2005

- NMCA

- 106, ¶¶ 26

- 29, 138 N.M. 232, 9

118 P.3d 740

. 10

{ 24 } In this case, the State’s comments on Defendant’s s ilence were isolated to 11
closing argument and rebuttal and constituted a relatively brief portion of the 12

State’s roughly eleven

- minute initial closing argument and five

- minute rebuttal

. 13
Because the comments were not repeated or pervasive, we do not see this factor as 14
weighing in favor of reversal

. 15

C

. The Defense Invited the State’s Comment s 16

{ 25 } Turning to the third factor, we note that defense counsel repeatedly asked 17

Officer Miller on cross

- examination whether he asked Defendant if he had 18
consumed any alcohol after parking his vehicle. Defense counsel’s repeated 19
questioning as to whether Officer Miller asked Defendant about his alibi strongly 2017

suggested that there was an account that Defendant had not relayed to the officer
, 1

and that the officer himself was to blame for not asking the correct questions . This 2
line of questioning by the defense placed Defendant’s silence

— regarding his post

3
driving drinking exploits

— directly into issue and practically invited the State to 4

comment upon the acc ount not provided at that time by Defendant. But cf. Garcia
, 5

1994

- NMCA

- 147, ¶ 15 (rejecting the state’s argument that the purpose of its 6
questioning of an officer was to explain why he had not investigated the 7
defendant’s alibi at the time of the investiga tion, because there was no evidence 8

that the defense argued the state had failed to investigate the alibi properly). 9
Consequently, this factor weighs against reversal. 10

D

. Defendant Was Not Deprived of a Fair Trial 11

{ 26 } Beyond the three factors previously discussed
, Sosa requires that we analyze 12
the context and determine whether the state’s “comments materially altered the 13
trial or likely confused the jury by distorting the evidence, and thereby deprived 14

the accused of a fair trial .” 2009

- NMSC

- 0 56, ¶ 34. To resolve the question of 15
whether the state’s comments deprived the defendant of a fair trial, “we review the 16
comment[s] in context with the closing argument as a whole and in the context of 17
the remaining trial proceedings so that we may gain a full understanding of the 18
comments and their potential effect on the jury.” Fry , 2006

- NMSC

- 001, ¶ 50 19
(internal quotation marks and citation omitted). Viewing the State’s relatively brief 2018

comments in context with the closing argument and the trial as a whol e, we 1
conclude the State’s comments did not deprive Defendant of a fair trial. The thrust 2
of the State’s closing argument was to highlight Defendant’s high BAC level, the 3

short time frame available to Defendant after he parked his car to consume enough 4

alcohol to reach that BAC level, his flawed performance during the FSTs , Mr. 5
Chavez’s potential bias as Defendant’s long

- time friend, and Defendant’s attempt 6
to run away, indicating consciousness of guilt. The comments on Defendant’s 7

sil ence were a very brief part of the State’s closing arguments. Moreover, given the 8
evidence of guilt presented by the State

— including Defendant’s admissions to 9
driving and to having a couple of beers at lunchtime, his poor performance on the 10

FSTs, and his b reath test results of 0.14 and 0.13

— we cannot say the State’s 11
comments materially altered the trial or confused the jury, thereby depriving 12
Defendant of a fair trial. We therefore conclude that the metropolitan court did not 13
abuse its discretion in denying Defendant’s motion for a mistrial. 14

CONCLUSION 15

{ 27 } For these reasons, we affirm. 16

{ 28 } IT IS SO ORDERED. 17

_________________________________________ 18 DANIEL J. GALLEGOS, Judge Pro Tempore 19

WE CONCUR: 2019

__________________________ 1 J. MILES HANISEE, Judge 2

________

_________________________________ 3 HENRY M. BOHNHOFF, Judge Pro Tempore 4