State v. Ruiz

STATE OF NEW MEXICO, Plaintiff-Appellee, v. JESUS RUIZ, Defendant-Appellant.

NO. A-1-CA-35726

COURT OF APPEALS OF THE STATE OF NEW MEXICO

December 26, 2018

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY

Marci E. Beyer, District Judge

Hector H. Balderas, Attorney General

Anita Carlson, Assistant Attorney General

Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Kathleen T. Baldridge, Appellate Defender

Santa Fe, NM

for Appellant

MEMORANDUM OPINION

BOHNHOFF, Judge {1} Defendant Jesus Ruiz was convicted of possession of drug paraphernalia and a controlled substance (methamphetamine), contrary to NMSA 1978, Section 30-31-25.1(A) (2001) and NMSA 1978, Section 30-31-23(E) (2011), respectively. On appeal, Defendant argues that during trial the prosecutor impermissibly commented on his silence, amounting to fundamental or plain error. Defendant also contends that there is insufficient evidence to support his conviction for possession of the methamphetamine. Unpersuaded, we affirm.¹

BACKGROUND

{2} Deputy Jose Pacheco pulled Defendant over for having a suspended license and then learned that there was a warrant out for Defendant's arrest. Deputy Pacheco placed Defendant under arrest, handcuffed him, and conducted a search incident to arrest. Deputy Pacheco asked Defendant if he had anything in his pocket that could harm him during the search. Defendant stated that he had one or two pipes used to smoke methamphetamine in his pocket. Deputy Pacheco then asked Defendant if he had any methamphetamine on him or if there was any in his vehicle. Defendant responded in the negative to these inquiries. After searching Defendant's clothing and finding a single pipe, Deputy Pacheco placed Defendantin the back of his patrol vehicle. Upon searching Defendant's vehicle, Deputy Pacheco discovered two bags of methamphetamine in the pocket of the driver's side door within arm's reach of where Defendant had been seated. The State subsequently charged Defendant with possession of drug paraphernalia and possession of a controlled substance.

{3} At trial, there was no testimony as to whether Deputy Pacheco or any of the other officers who had participated in Defendant's arrest had read Defendant his Miranda rights. The district court did admit into evidence the dashboard video from the arresting officer's patrol vehicle, which showed that Deputy Pacheco did not advise Defendant of his Miranda rights prior to placing him in the back of the patrol vehicle. However, for reasons that were not explained, subsequently during the course of the arrest the video was muted and continued to run for approximately twenty-five minutes before the sound resumed; thus, we do not know whether Defendant was advised of his Miranda rights while the video was muted. Defendant never moved to suppress or otherwise objected to any of the statements he had made to Deputy Pacheco on the basis of a Miranda violation.

{4} During opening statements, Defendant's counsel indicated to the jury that Defendant would testify that other people had driven his vehicle prior to his arrest, providing an alternative explanation why the vehicle contained methamphetamine. When Defendant took the stand, he testified that several of his friends and familymembers had used the vehicle, including on the day of Defendant's arrest. However, Defendant admitted that the pipe was his and that he had used it to smoke methamphetamine. There was additional testimony from one of the officers who participated in the arrest that the pipe contained methamphetamine residue.

{5} During the prosecutor's cross-examination of Defendant, the following exchange occurred:

Q: Mr. Ruiz, isn't it true that when you were pulled over a year ago, you were the occupant of your vehicle?

A: Correct.

Q: Isn't it true that you admitted to the officer that that's your car?

A: Yes.

Q: Okay. Mr. Ruiz, you've been sitting here throughout the entire trial, haven't you?

A: Yes.

Q: So you've heard the testimony of all the other officers and the scientist, correct?

A: Correct.

Q: So won't you agree with me that none of the police officers testified that you told them that other people had been in your car?

A: Can you repeat that question?

Q: That was a confusing way to ask that question, I'll agree with you on that. Wouldn't you agree with me that none of the officers that testified said that you told them other people had been in your car?

A: They never asked.

Q: But you never told them, did you?

A: No.

Q: Wouldn't you agree with me that that might have been helpful if you would have told them that story?

A: They never asked that nothing at all.

Q: But you didn't think it was important to tell the officers that other people have been in your car?

A: No, sir.

. . .

Q: Isn't it true that the methamphetamine that was found in your car was found in the driver's side door pocket?

A: I don't know, sir.

Q: So if the officers testified that it was found there, you couldn't say whether or not that's the truth?

A: No, sir.

Q: So isn't it true that actually today is the first time you've told the story about your kids and your kids' friend and your sister having access to your vehicle, wouldn't you agree with me?

A: No.

Q: That's not the first time that you've told that story to law enforcement?

A: Correct.

Q: You told it to law enforcement previously?

A: I talked to my attorney about it.

Q: Okay. No, I'm sorry. I'm not talking about what you may have told your attorney. Isn't it true that you never told law enforcement that other people had access to your vehicle?

A: No.

Q: Isn't it true that none of those people are here today?

A: No.

Q: That is true or it is not true?

A: It's not true. I never tell anybody. Never say nothing about being other people in my car.

Q: Thank you. That's what I wanted to get to. Isn't it true that none of those people are here today?

A: No, not here.

(Emphasis added.) Defendant did not object during this questioning.

{6} In a portion of State's closing argument, the prosecutor stated:

Now, yesterday you heard the story for the first time that, oh, I loaned my car out to everyone. He blamed his teenage children, maybe, for having methamphetamine. Maybe it was one of their friends or his sister. It could have been my sister's meth. The first time he told that story to law enforcement, well, while law enforcement was present. Remember, Undersheriff Elston was here. I asked thedefendant, isn't that something you would want to tell police? But you didn't, did you? None of those people were here yesterday. None of those people are here today.

(Emphasis added.) Defendant did not object to the prosecutor's closing remarks either.

{7} At the conclusion of the trial, the jury returned a guilty verdict on both possession of drug paraphernalia and possession of a controlled substance (methamphetamine).

DISCUSSION

I. Comment on Defendant's Silence

{8} On appeal, Defendant does not assert any violation of his rights based on the fact that Deputy Pacheco questioned him following his arrest without first advising him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444, 467 (1966) (holding that prosecution may not use statements stemming from custodial interrogation of the defendant unless it demonstrates the use of "procedural safeguards effective to secure the privilege against self-incrimination[,]" and that a person is subject to custodial interrogation when law enforcement initiates questioning after a person has been taken into custody or otherwise deprived of his or her freedom of action in any way). Instead, Defendant argues that the prosecutor's cross-examination of him and closing argument statement quotedabove impermissibly commented on his silence immediately following his arrest and between that time and his trial.

{9} Whether a prosecutor improperly commented on a defendant's postarrest silence is a legal question that we review de novo. See State v. Foster, 1998-NMCA-163, ¶ 8, 126 N.M. 177, 967 P.2d 852. However, as stated above, Defendant never objected at trial to any of the prosecutor's cross-examination and argument that he now challenges. "To preserve an issue for review, it must appear that a ruling or decision by the [district] court was fairly invoked." Rule 12-321(A) NMRA. "When a defendant fails to object at trial to comments made by the prosecution about his or her silence, we review only for fundamental error[.]" State v. DeGraff, 2006-NMSC-011, ¶ 21, 139 N.M. 211, 131 P.3d 61. Fundamental error analysis involves two steps. "We first determine whether any error occurred, i.e., whether the prosecutor commented on the defendant's protected silence. If such an error occurred, we then determine whether the error was fundamental." Id.

A. Law Regarding Comment on a Defendant's Silence

{10} Although the standard Miranda warning does not indicate that remaining silent will carry no penalty, it is implied. See Doyle v. Ohio, 426 U.S. 610, 618 (1976). Consequently, "New Mexico courts have long held that a prosecutor is prohibited from commenting on a defendant's right to remain silent[.]" State v. McDowell, 2018-NMSC-008, ¶ 4, 411 P.3d 337. See also Foster, 1998-NMCA-163, ¶ 9 (noting "the general rule forbidding a prosecutor from commenting on a defendant's silence or introducing evidence of silence"); State v. Garcia, 1994-NMCA-147, ¶ 12, 118 N.M. 773, 887 P.2d 767 (stating that "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial" (internal quotation marks and citation omitted)). The prohibition on commenting on an...