State v. Sena

470 P.3d 227

STATE of New Mexico, Plaintiff-Respondent/Cross-Petitioner,

v.Richard J. SENA, Defendant-Petitioner/Cross-Respondent.

NO. S-1-SC-36932 CONSOLIDATED WITH NO. S-1-SC-36933

Supreme Court of New Mexico.

Filing Date: June 25, 2020

Rehearing Denied: July 20, 2020

Bennett J. Baur, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Petitioner/Cross-Respondent

Hector H. Balderas, Attorney General, Marko David Hananel, Assistant Attorney General, Santa Fe, NM, for Respondent/Cross-Petitioner

VIGIL, Justice.

{1} 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). In addition, Defendant entered a no contest plea to being a felon in possession of a firearm in violation of NMSA 1978, Section 30-7-16 (2001, amended 2018, 2019), and admitted to being a habitual offender and subject to an enhanced sentence.

Defendant was sentenced to the New Mexico Department of Corrections for a total of forty years and six months. Defendant appealed to the Court of Appeals. State v. Sena , 2018-NMCA-037, 419 P.3d 1240, cert. granted , 2018-NMCERT-–––– (S-1-SC-36932, May 25, 2018).

{2} In the Court of Appeals, Defendant asserted the following errors: (1) the district court failed to grant a mistrial when Defendant did not testify, and the prosecutor in closing arguments argued that Defendant's demeanor during Victim's trial testimony was evidence of Defendant's guilt, (2) the instruction on kidnapping was erroneous in failing to require a finding that the restraint used during the kidnapping was not merely incidental to another crime, (3) Defendant's convictions of both aggravated burglary and CSP and CSC were double jeopardy violations, (4) the State failed to present sufficient evidence to support the convictions of CSP and kidnapping, and (5) the district court abused its discretion by admitting the results of DNA testing into evidence. See id. ¶¶ 1, 7, 20, 26, 27, 32, 34, 51.

{3} In a formal opinion the Court of Appeals (1) rejected Defendant's argument that the district court erred in denying his motion for a mistrial, (2) held that the omission of incidental restraint in the instruction on kidnapping constituted fundamental error, and (3) held that Defendant's convictions of aggravated burglary, CSP, and CSC were double jeopardy violations. See id . ¶¶ 7-19, 20-25, 34-48. The Court of Appeals also determined that the State presented sufficient evidence to support the convictions of CSP and kidnapping and that the district court did not err in admitting the results of DNA testing into evidence. See id . ¶¶ 26-33, 49-55.

{4} We granted the petitions for certiorari filed by Defendant and the State to review the foregoing conclusions. We hold that the Court of Appeals (1) erred in affirming the district court order denying Defendant's motion for a mistrial, (2) erred in reversing Defendant's kidnapping conviction for fundamental error on grounds that the elements instruction did not address incidental restraint, (3) erred in concluding that Defendant's convictions for aggravated burglary, CSP, and CSC violated double jeopardy, and (4) correctly held that the State presented substantial evidence to support Defendant's convictions for CSP and kidnapping. Because we remand for a new trial, it is not necessary, and we decline to address, whether the district court erred in admitting the results of DNA testing into evidence.

A. BACKGROUND

{5} Victim, who lived alone and was in her seventies, awoke at 3:30 a.m. to Defendant's gloved hand over her mouth and a knife to her head. When Victim tried to scream, Defendant told her to stop and threatened to kill her. Defendant then ordered Victim out of bed and demanded she undress. As Victim undressed, Defendant asked Victim where her purse was, and Victim replied that it was in the closet. Defendant took Victim's wallet containing thirty dollars.

{6} Victim told Defendant that she needed to use the restroom. Defendant allowed Victim to go to the restroom while he watched and began masturbating. After she finished using the restroom, Defendant ordered Victim back to bed, telling her to lie face down on a pillow. Defendant got on top of Victim and penetrated Victim's vagina and anus with his penis. After a few minutes, Defendant instructed Victim to get on her knees and continued penetrating Victim's vagina and anus with his penis. Defendant then told Victim to turn over, at which point he began fondling Victim's breasts and digitally penetrating Victim's vagina.

{7} After the sexual assaults, Defendant asked Victim about a rifle leaning against the bedroom wall. Defendant proceeded to leave the bedroom, and after waiting a few minutes, Victim attempted to inch out of bed. Defendant, who was watching Victim from the living room, ordered Victim back into bed. After waiting awhile longer, Victim got out of bed and entered the living room where she found her front door wide open. Victim discovered that her wallet and rifle were missing, as were the cordless telephones from the living room and Victim's bedroom. Victim also noticed an open sliding window in the dining room. Victim closed the front door, locked it, and called police.

{8} Police arrived shortly thereafter, discovering shoe prints directly below the open sliding window. Police tracked the shoe prints to the residence of Defendant's stepmother and stepfather, where Defendant was hiding wearing socks but no shoes. Inside the residence, police collected a pair of sneakers consistent with the shoe print found at Victim's home. Police also followed tire tread tracks to a Honda parked outside the residence, which was identified as belonging to Defendant. After obtaining a search warrant for the Honda, police found leather gloves, a rifle, and a large knife. The gloves were consistent with the description that Victim provided. Victim also identified the rifle as the one stolen by Defendant and the knife as the one used during the incident.

{9} Following the incident, Victim was examined by a sexual assault nurse examiner (SANE). The examination revealed a half centimeter "open area" consistent with force on Victim's vagina. The SANE obtained various swabs from both Victim and Defendant for DNA testing, including a swab of Victim's left, upper thigh and a swab of Defendant's lower abdomen. No semen was detected on any of the swabs that were tested, but Victim's DNA was detected on Defendant's hands.

{10} We now address the issues raised by Defendant and the State in their respective petitions for certiorari.

B. DISCUSSION

1. The Prosecutor's Arguments During Closing Arguments

{11} The Court of Appeals held that "commenting on the demeanor of a nontestifying defendant is improper, as it is neither probative of innocence or guilt, nor is it evidence that an appellate court can properly review." Sena , 2018-NMCA-037, ¶ 12, 419 P.3d 1240. We agree with this holding. However, the Court of Appeals erred in concluding that the prosecutor's arguments in this case "did not invade a distinct constitutional protection" and did not deprive Defendant of a fair trial. Id . ¶¶ 18, 19 (internal quotation marks and citation omitted). For the reasons that follow, we reverse and remand for a new trial.

{12} While the prosecutor was making her closing arguments, the following exchanges took place.

OPEN COURT

Prosecutor:

Did you notice, also, ladies and gentlemen, when she [Victim] testified, that man [Defendant] wouldn't even look at her. He watched every other witness on the stand.

Defense Counsel:

Objection, your honor. There's no evidence of that. May I approach the bench?

Prosecutor:

Judge, this is ... (unintelligible)

SIDEBAR CONFERENCE

Defense Counsel:

That's commenting on his silence. He's not testifying. What he did or didn't do is not in the record at all. We object and, strongly object to her reference of what—against his presumption of innocence. He didn't testify. There was absolutely no evidence. That's done to inflame. We move for a mistrial.

Prosecutor:

Judge, that is not ... (unintelligible)

Defense Counsel:

No one testified to that.

Prosecutor:

(unintelligible)

Defense Counsel:

No one testified to that.

Court:

The jury's just going to have to rely on their own memories of what they observed. And she's not commenting on his silence, she's just commenting on what he did. So, objection is overruled.

OPEN COURT

Court:

Objection is overruled. The jury will have to rely on their own memories as to what they observed (unintelligible).

Prosecutor:

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.

{13} Defendant contends that the Court of Appeals erred when it held that while the prosecutor's arguments were improper, they were not prejudicial. Defendant asserts that the district court erred because the prosecutor's arguments were not only improper but were prejudicial and contributed to Defendant's convictions.

{14} The State concedes that the prosecutor's arguments were improper because they "elevated [Defendant's] courtroom demeanor to the status of evidence and encouraged the jury to treat it as evidence of guilt." However, the State contends the Court of Appeals correctly held that the comments were not prejudicial because "Defendant's right to have his guilt or innocence determined solely on the basis of the evidence introduced at trial" does not "transform any reference to matters not in evidence into a ...