Saturday, June 27, 2020

New Mexico: Improper Argument Leads To Reversal Of Conviction

The New Mexico Supreme Court reversed a conviction for, among other things, an improper closing argument by the prosecutor

The conviction

  A jury found Defendant guilty of one count of each of the following crimes: criminal sexual penetration (CSP) in the first degree in violation of NMSA 1978, Section 30-9-11(D)(2) (2009); kidnapping in the first degree in violation of NMSA 1978, Section 30-4-1 (2003); armed robbery in violation of NMSA 1978, Section 30-16-2 (1973); aggravated burglary in violation of NMSA 1978, Section 30-16-4(C) (1963); and criminal sexual contact (CSC) in violation of NMSA 1978, Section 30-9-12(C)(3) (2003).

The argument

In her closing argument, the prosecutor asked the jury, “Did you watch [Defendant] in the courtroom when [Victim] 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.” The argument had no purpose other than to invite the jury to draw an adverse conclusion from Defendant’s failure to get on the stand and explain why he would not look at Victim as she testified. After Defendant objected, the jury heard the district court overrule the objection, which placed the “stamp of judicial approval” on the improper argument, further magnifying the prejudice. See Boulden v. State, 787 S.W.2d 150, 153 (Tex. Ct. App. 1990) (internal quotation marks and citation omitted) (“[W]here a trial court overrules an objection to improper argument, it places ‘the stamp of judicial approval’ on the argument, magnifying the harm.” (citation omitted)). Having obtained the district court’s stamp of judicial approval, the prosecutor compounded the prejudice by repeating the statement and adding, “And why wouldn’t he look at her? Because he knew what he’d done. He knew what he did.” We would be remiss if we did not add that the closing arguments were recorded and we have the benefit of knowing not only what words the prosecutor spoke but her tone as well. The prosecutor’s accusatory tone was tantamount to pointing a finger at Defendant.

The court

The prosecutor’s arguments violated Defendant’s Fifth and Fourteenth Amendment rights and deprived Defendant of a fair trial, resulting in reversible error. Prosecutors do not have license to make improper and prejudicial arguments with impunity. We reverse the Court of Appeals holding that Defendant received a fair trial, and we remand to the district court for a new trial.

(Mike Frisch)

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