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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            No. A-1-CA-35076

 5 ALFREDO VILLALOBOS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 8 William G. Shoobridge, District Judge

 9 Hector H. Balderas, Attorney General
10 Anita Carlson, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Chief Public Defender
14 William O’Connell, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 ATTREP, Judge.
 1   {1}   Defendant Alfredo Villalobos appeals his conviction for second-degree murder.

 2 On appeal, Defendant argues that his conviction must be reversed because the State’s

 3 prosecutor improperly impeached his testimony with his post-arrest silence when he

 4 was asked to admit to the jury that he never told police that he and Victim had been

 5 in a fight. We find that Defendant did not preserve the issue for appeal and review

 6 only for fundamental error. Although we hold that the prosecutor improperly

 7 commented on Defendant’s post-arrest silence, Defendant did not show that the

 8 improper comments constituted fundamental error. We, therefore, affirm his

 9 conviction.

10 BACKGROUND

11   {2}   On June 26, 2012, Defendant stabbed and killed Kenny Parks (Victim) at

12 Defendant’s home in Hobbs, New Mexico. That day, Defendant had been drinking at

13 his home with his sister (Daniella), his sister’s fiancé (Joshua), and two other friends.

14 Eventually the group decided to seek out drugs and contacted Victim. The group went

15 to Victim’s home, smoked methamphetamine, and then returned to Defendant’s home

16 with Victim. At Defendant’s home, Defendant, Victim, and the rest of the group

17 continued to smoke methamphetamine and drink alcohol. The group gathered in

18 Defendant’s bedroom when, according to Defendant’s testimony, a physical

19 confrontation for an unknown reason began between Defendant and Victim.



                                               2
 1   {3}   Although Defendant was unable to recall much detail about the night of June

 2 26, 2012, Defendant testified at trial that Victim was mad and pinned him against a

 3 wall. Defendant testified that they wrestled and fought. Defendant then testified that

 4 he grabbed a knife that was located in the room, and that he swung the knife at Victim.

 5 Victim backed away and Defendant fled the scene.

 6   {4}   The State cross-examined Defendant regarding his failure to tell the police

 7 about the alleged altercation with Victim in the following exchange:

 8         Q.    [The prosecutor] And when you were picked up by the police, you
 9         were taken to the police station, correct?

10         A.    [Defendant] Yes.

11         Q.    And, of course, you told the police what happened, didn’t you?

12         A.    No.

13         Q.    No. You never told the police that this had been a fight?

14         A.    I felt I didn’t have no reason to say anything because I didn’t think
15         anything happened.

16         Q.    You didn’t think anything had happened.

17 In response to this line of questioning, defense counsel did not immediately object.

18 Approximately three minutes later, a bench conference was held. During this

19 conference, Defendant’s attorney objected to the State’s previous questions regarding

20 Defendant’s post-arrest silence. Although the recording of the bench conference is



                                               3
 1 inaudible, the trial court, on limited remand, reconstructed the record with the

 2 assistance of the parties, and found the following:

 3         At 2:21:56 p.m. on January 27, 2015, Defendant’s counsel asked to
 4         approach the bench and objected to the questions asked about three
 5         minutes earlier by the Assistant District Attorney. The objection was
 6         based upon an improper comment by the prosecution on . . . Defendant’s
 7         right to remain silent. The [c]ourt agreed with the objection.

 8         . . . Defense counsel does not recall whether or not he specifically
 9         requested a mistrial. The [c]ourt and the prosecutor have specific
10         memory that no mistrial was requested. The [c]ourt remembers that
11         inquiry was made as to what relief defense counsel was requesting and
12         defense counsel only asked for cessation of any inquiry regarding
13         Defendant’s silence. All parties agree that there was no request for a
14         curative instruction[] and that the jury was not excused to hear a motion
15         for mistrial.

16 Defendant’s silence was not mentioned again at trial.

17   {5}   At trial, Daniella, Joshua, and Defendant’s mother, who had returned home

18 sometime before the alleged altercation, testified that they did not see the fight start,

19 but walked in on the fight. After the fight broke up, and it was clear that Victim was

20 bleeding, Joshua called the police and dragged Victim to the front door of the home.

21 When the police arrived, Joshua told the police that Victim had shown up at the house

22 bleeding. Victim was transported to the hospital and was declared dead shortly after

23 arriving at the hospital.

24   {6}   At trial, Defendant did not dispute that he had stabbed Victim, but asserted that

25 he had done so in self-defense. The State’s theory at trial was that the physical


                                               4
 1 evidence controverted Defendant’s self-defense claim. The State elicited testimony

 2 that, after the fight, Defendant had no bruises and had only superficial marks. A

 3 forensic pathologist testified at trial that Victim had a wound on his hand

 4 contemporaneous with his death, but that otherwise there were no injuries on Victim’s

 5 hands that would suggest that an altercation had taken place. Victim died from two

 6 stab wounds—one to the chest and one to the mid-back.

 7   {7}   The jury returned a verdict of guilty of second-degree murder, Defendant was

 8 sentenced to fifteen years imprisonment, and Defendant filed this appeal.

 9 DISCUSSION

10   {8}   Defendant argues that the prosecutor improperly impeached his testimony that

11 Victim had attacked him by asking him to admit that he “never” told the police that

12 he and Victim had fought. Defendant asserts that this line of questioning improperly

13 commented on his post-arrest silence. Whether a prosecutor improperly commented

14 on a defendant’s post-arrest silence is a legal question that we review de novo. See

15 State v. Foster, 1998-NMCA-163, ¶ 8, 126 N.M. 177, 967 P.2d 852. Because we find




                                             5
 1 that Defendant did not timely object, we review only for fundamental error.1 See

 2 DeGraff, 2006-NMSC-011, ¶¶ 12, 16, 21-22.

 3 I.       Defendant Failed to Preserve the Issue

 4   {9}    “To preserve an issue for review, it must appear that a ruling or decision by the

 5 trial court was fairly invoked.” Rule 12-321(A) NMRA. To fairly invoke a ruling or

 6 decision, “it is the responsibility of counsel at trial to elicit a definitive ruling on an

 7 objection from the court.” State v. Lucero, 1993-NMSC-064, ¶ 11, 116 N.M. 450, 863

 8 P.2d 1071. “It is [also] trial counsel’s duty to state the objections so that the trial court

 9 may rule intelligently on them and so that an appellate court does not have to guess

10 at what was and what was not an issue at trial.” Id.

11   {10}   In this case, defense counsel objected to the prosecutor’s questions relating to

12 Defendant’s silence three minutes after the line of questioning was completed and

13 asked only that the inquiry into Defendant’s silence cease. Defendant did not ask for

14 a curative instruction or a mistrial.2 Defendant’s belated objection, especially in light


            1
15           Defendant’s assertion that plain error review should apply in this case is
16   unavailing. Courts have consistently applied fundamental error review to a
17   defendant’s unpreserved claim that the state has improperly commented on
18   defendant’s silence. See State v. McDowell, 2018-NMSC-008, ¶¶ 7, 18, 411 P.3d 337;
19   State v. DeGraff, 2006-NMSC-011, ¶¶ 12, 16, 21-22, 139 N.M. 211, 131 P.3d 61.

        2
17        In the reconstruction of the record, defense counsel claims he does not recall
18 whether he requested a mistrial during the bench conference; it is undisputed that
19 Defendant did not move for a mistrial later in the proceedings. The bench conference

                                                 6
 1 of his failure to ask for a curative instruction or mistrial, is insufficient to preserve the

 2 issue for appeal. See State v. La Madrid, 1997-NMCA-057, ¶ 5, 123 N.M. 463, 943

 3 P.2d 110 (“[T]he general rule [is] that an untimely objection is an ineffective

 4 objection.”); see also In re Crystal L., 2002-NMCA-063, ¶ 19, 132 N.M. 349, 48 P.3d

 5 87 (holding that there was no reversible error where defense counsel made an

 6 objection but did not request a curative instruction or other remedy). “[I]n the context

 7 of a prosecutor’s comments on a defendant’s right to silence where no timely

 8 objection is made, the Court considers only whether the defendant has shown

 9 fundamental error.” State v. McDowell, 2018-NMSC-008, ¶ 18, 411 P.3d 337.

10 II.      Fundamental Error Analysis

11   {11}   As recognized in McDowell, “New Mexico courts have long held that a

12 prosecutor is prohibited from commenting on a defendant’s right to remain silent,

13 which is protected under Miranda v. Arizona, 384 U.S. 436 . . . (1966).” McDowell,

14 2018-NMSC-008, ¶ 4 (explaining the three rationales behind this prohibition); see

15 also State v. Garcia, 1994-NMCA-147, ¶ 12, 118 N.M. 773, 887 P.2d 767 (providing

16 that “‘it would be fundamentally unfair and a deprivation of due process to allow the

17 arrested person’s silence to be used to impeach an explanation subsequently offered

18 at trial’” (quoting Doyle v. Ohio, 426 U.S. 610, 618 (1976)). The first step in


17 lasted less than 50 seconds and matters other than Defendant’s silence were discussed.
18 It seems implausible that Defendant moved for a mistrial during this brief conference.

                                                 7
 1 determining whether a violation of this nature occurred requires this Court to

 2 determine whether the prosecutor did in fact improperly comment on the Defendant’s

 3 protected silence. See DeGraff, 2006-NMSC-011, ¶ 21. If the Court determines that

 4 the prosecutor did so, “we then determine whether the error was fundamental. An

 5 error is fundamental if there is a reasonable probability that the error was a significant

 6 factor in the jury’s deliberations in relation to the rest of the evidence before them.”

 7 Id. (internal quotation marks and citation omitted).

 8 A.       The State Improperly Commented on Defendant’s Silence

 9   {12}   Defendant invoked his right to remain silent at the time of his arrest and until

10 testifying at trial. In determining whether the prosecutor improperly commented on

11 Defendant’s invocation of his right to remain silent, we “consider whether the

12 language used was manifestly intended to be or was of such a character that the jury

13 would naturally and necessarily take it to be a comment on the accused’s exercise of

14 his or her right to remain silent.” Id. ¶ 8 (internal quotation marks and citation

15 omitted). “We evaluate the statement in context to determine the manifest intention

16 that prompted the remarks, as well as the natural and necessary impact upon the jury.”

17 Id. (internal quotation marks and citation omitted). “Where comments by the

18 prosecutor are ambiguous, we consider what inference the jury was asked to draw

19 from the defendant’s silence and the propriety of that inference.” Id. ¶ 9.



                                                8
 1   {13}   In this case, the context and manner of the prosecutor’s comments indicate that

 2 the prosecutor was asking the jury to infer that Defendant’s silence was proof that his

 3 claim of self-defense was fabricated. Courts of this State have consistently held that

 4 using a defendant’s post-arrest silence to impeach an explanation offered at trial is

 5 impermissible. See DeGraff, 2006-NMSC-011, ¶¶ 8-10 (holding that a prosecutor

 6 improperly commented on a defendant’s right to remain silent when the prosecutor

 7 stated during closing argument that the defendant’s explanation of self-defense was

 8 not credible because “he did not volunteer it sooner”); State v. Pacheco, 2007-NMCA-

 9 140, ¶¶ 14, 17, 142 N.M. 773, 170 P.3d 1011 (affirming that it is impermissible for

10 a prosecutor to use a defendant’s post-arrest silence to impeach a defendant); Garcia,

11 1994-NMCA-147, ¶ 16 (“Doyle[, 426 U.S. at 618,] forbids the use of post-Miranda

12 silence to impeach an explanation offered at trial.”).

13   {14}   The State argues that the prosecutor did not improperly comment on

14 Defendant’s post-arrest silence because the questions were designed to show that

15 Defendant’s trial testimony was inconsistent with earlier statements. We are not

16 persuaded. It is true that the State may impeach a defendant’s testimony with his or

17 her prior inconsistent and voluntary statements. See, e.g., Foster, 1998-NMCA-163,

18 ¶¶ 17-18 (finding no reversible error when a prosecutor impeached a defendant by

19 comparing a prior statement with the statement the defendant was providing at trial);



                                               9
 1 State v. Hennessy, 1992-NMCA-069, ¶ 18, 114 N.M. 283, 837 P.2d 1366 (providing

 2 that “the constitutional bar against the use of silence does not apply to cross-

 3 examination which inquires into prior inconsistent statements”), overruled on other

 4 grounds by Lucero, 1993-NMSC-064, ¶ 13. The record, however, does not indicate

 5 that Defendant gave a prior statement in this case. Where, as here, a defendant has

 6 provided no prior statement, it is impermissible for the prosecution to comment on a

 7 defendant’s silence. See DeGraff, 2006-NMSC-011, ¶¶ 8-10; Pacheco, 2007-NMCA-

 8 140, ¶¶ 14, 17; Garcia, 1994-NMCA-147, ¶ 16. Additionally, insofar as the State

 9 argues that the purpose of the cross-examination was to discredit the other witnesses

10 who supported Defendant’s claim of self-defense, this Court has already rejected this

11 justification for commenting on a defendant’s post-arrest silence. See Garcia, 1994-

12 NMCA-147, ¶ 14 (rejecting the state’s argument that it could comment on a

13 defendant’s post-arrest silence to impeach his alibi witnesses).

14   {15}   Because the context and content of the prosecutor’s questions demonstrate that

15 the true purpose of her questions was to impermissibly impeach Defendant’s

16 credibility with his post-arrest silence, we conclude that the prosecution improperly

17 commented on Defendant’s silence.

18 B.       The Prosecutor’s Comments Did Not Rise to the Level of Fundamental
19          Error




                                              10
 1   {16}   The Court does not take lightly that it has been clear for many years that

 2 “prosecutors who inject impermissible comments on silence into trials will risk

 3 reversal by this [C]ourt of convictions secured through such tactics, regardless of

 4 whether there is objection.” Hennessy, 1992-NMCA-069, ¶ 23. Nonetheless, because

 5 Defendant failed to make a timely objection, we determine only whether the

 6 prosecutor’s error was fundamental. “The rule of fundamental error applies only if

 7 there has been a miscarriage of justice, if the question of guilt is so doubtful that it

 8 would shock the conscience to permit the conviction to stand, or if substantial justice

 9 has not been done.” Lucero, 1993-NMSC-064, ¶ 12 (internal quotation marks and

10 citation omitted). In assessing fundamental error, this Court “considers only whether

11 the defendant has shown that there is a reasonable probability that the error was a

12 significant factor in the jury’s deliberations relative to the other evidence before

13 them.” DeGraff, 2006-NMSC-011, ¶ 22. It is the Court’s responsibility to “evaluate

14 the prejudicial effect of the testimony and the quantum of evidence against [the

15 d]efendant.” McDowell, 2018-NMSC-008, ¶ 18. “If the prejudicial effect is minimal

16 and the evidence of the defendant’s guilt overwhelming, the error does not rise to the

17 level of fundamental error.” Id.

18   {17}   Defendant argues that the prosecutor’s comments on his silence constituted

19 fundamental error because there was ample evidence provided at trial in support of his



                                              11
 1 claim of self-defense and sufficient provocation, and because his credibility was

 2 crucial to these claims. Although Defendant testified that he was defending himself

 3 during an altercation with Victim, and a number of other witnesses testified that a

 4 fight occurred, we are unconvinced that the prosecutor’s error was a significant factor

 5 in the jury’s deliberations. The prosecution provided physical evidence, testimony,

 6 and forensic evidence that undermined Defendant’s claims of self-defense and

 7 sufficient provocation and supported a conviction of second-degree murder. This

 8 evidence included: (1) undisputed testimony and physical evidence that Defendant

 9 stabbed Victim and fled; (2) testimony that Victim had been stabbed twice; (3)

10 testimony and evidence that Victim died from the stab wounds; (4) testimony that

11 Defendant lacked significant bruising or markings to show that he was in a physical

12 struggle where his life was in danger; (5) forensic evidence that Victim lacked injuries

13 consistent with an altercation with Defendant; (6) testimony that eye witnesses were

14 not credible because of their prior inconsistent statements and their actions following

15 the crime, including dragging Victim to the front porch of the home and telling

16 officers that Victim showed up to the house bleeding; and (7) testimony from

17 Defendant that showed significant gaps in his memory and inconsistencies between

18 his testimony and the physical evidence that undermined his claims of self-defense

19 and sufficient provocation.



                                              12
 1   {18}   The prosecutor’s comments were constrained to three questions during

 2 Defendant’s cross-examination, and the issue was never raised again. In comparison

 3 to the overwhelming evidence supporting Defendant’s guilt, the prosecutor’s

 4 comments on Defendant’s silence were limited and non-essential to the State’s case.

 5 Given this, we conclude that the prosecutor’s comments were not a significant factor

 6 in the jury’s deliberations and had minimal prejudicial effect. “In light of the minimal

 7 prejudicial effect of the prosecutor’s comments, and the overwhelming evidence

 8 presented by the prosecution, Defendant has not shown fundamental error.” DeGraff,

 9 2006-NMSC-011, ¶ 23 (internal quotation marks and citation omitted).

10 CONCLUSION

11   {19}   For the foregoing reasons, we affirm Defendant’s conviction.

12   {20}   IT IS SO ORDERED.


13
14                                         JENNIFER L. ATTREP, Judge

15 WE CONCUR:


16
17 LINDA M. VANZI, Chief Judge


18
19 STEPHEN G. FRENCH, Judge



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