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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. 34,690

 5 JOSEPH MEYERS,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
 8 Marci Beyers, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 ZAMORA, Judge.

18   {1}    Defendant appeals from a conviction for breaking and entering. We previously

19 issued a notice of proposed summary disposition in which we proposed to uphold the
 1 conviction. Defendant has filed a memorandum in opposition. After due consideration,

 2 we remain unpersuaded. We therefore affirm.

 3   {2}   Defendant has raised a single issue, contending that the district court erred in

 4 failing to grant a mistrial based on a witness’ reference to Defendant’s involvement

 5 in a “domestic disturbance” prior to the events forming the basis for his conviction.

 6 [DS 3] In the notice of proposed summary disposition, we observed that we lacked

 7 information about the relevant context. [CN 2] Under the circumstances, we made

 8 certain assumptions about the comment. [CN 2]

 9   {3}   In conjunction with his memorandum in opposition, Defendant has

10 supplemented the record with a partial transcript of the trial proceedings. This allows

11 us to engage in a more thorough analysis of the merits.

12   {4}   The transcript reflects that the statement at issue was, in fact, “isolated and

13 spontaneous,” as we presumed. [CN 2] It was elicited by the prosecutor in the course

14 of her direct examination of one of the officers who responded to the scene. The

15 officer explained that he had patted Defendant down, advised him to have a seat, and

16 asked his name. [TR 9] The prosecutor then asked the witness, “So after you had him

17 have a seat, what did you do?” [TR 10] In response the officer stated, “I proceeded to

18 gather his basic information. At that time, he proceeded to state that earlier that

19 evening he was kicked out of his residence at another address on South Espina by



                                               2
 1 officers due to the fact that he was involved in a disturbance.” [TR 10] Defense

 2 counsel objected, and at a sidebar requested a mistrial based on the witness’ improper

 3 reference to “any disturbances, any past criminal acts.” [TR 10] The prosecutor noted

 4 that the statement was not a direct response to her question, and further, there were no

 5 charges and no details. [TR 10] The judge proposed to give a curative instruction to

 6 the jury telling them that the witness’ statement was not responsive and that they

 7 should not consider the reference to the disturbance. [TR 10-11] Defense counsel

 8 again stated his request for a mistrial, “for the record . . . with the understanding of

 9 what the court [was] going to do.” [TR 11] The judge then instructed the jury as

10 proposed: that “the officer’s last response regarding a disturbance was not responsive

11 to the question,” that it would be “struck from the record,” and that the matter was not

12 to be considered in deliberations. [TR 11] We perceive no abuse of discretion.

13   {5}   The foregoing summary clearly reflects that the officer’s comment was both

14 spontaneous and isolated. As we previously observed in the notice of proposed

15 summary disposition, under such circumstances a curative instruction is sufficient.

16 See State v. Fry, 2006-NMSC-001, ¶ 53, 138 N.M. 700, 126 P.3d 516 (observing that

17 a curative instruction is generally regarded as a sufficient response to an inadvertent

18 remark about a defendant’s prior criminal history); State v. Gonzales, 2000-NMSC-

19 028, ¶ 37, 129 N.M. 556, 11 P.3d 131 (holding that a curative instruction minimized



                                              3
 1 any prejudice caused by a witness’ inadvertent remark about the defendant’s prior bad

 2 acts, and consequently, the district court did not abuse its discretion in denying the

 3 defendant’s motion for mistrial), overruled on other grounds by State v. Tollardo,

 4 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110.

 5   {6}   Defendant acknowledges the foregoing principles and authorities. [MIO 4-5,

 6 8] However, he suggests that a departure is warranted in this case. To the extent that

 7 the officer “intentionally testified contrary to [a] limiting instruction” that had

 8 previously been issued by the court, Defendant contends that the comment should be

 9 regarded as intentional misconduct on the part of the “prosecutorial team.” [MIO 6]

10 However, it is not immediately clear that the officer’s reference to a “disturbance”

11 represented deliberate disregard for the court’s pretrial admonition, and we will not

12 presume bad faith. See, e.g., State v. LeFebre, 2001-NMCA-009, ¶¶ 24-25, 130 N.M.

13 130, 19 P.3d 825 (declining to presume that a police officer’s unsolicited testimony

14 about the defendant’s prior criminal history represented a willful violation of the

15 court’s pretrial exclusion of such evidence). Moreover, as Defendant acknowledges,

16 his novel argument for application of the prosecutorial misconduct analysis to

17 testifying members of the prosecutorial team is presently unsupported by published

18 authority, and we decline the invitation to extend our jurisprudence as Defendant has

19 requested in this case. [MIO 6] See State v. Herrera, 2014-NMCA-007, ¶ 22, 315 P.3d



                                             4
 1 343 (rejecting a similar request to extend the prosecutorial misconduct analysis to

 2 unsolicited comments on silence by police witnesses).

 3   {7}   Finally, we understand Defendant to contend that the witness’ statement was

 4 so prejudicial that the general rule, by which curative instructions are regarded as

 5 sufficient responses in cases such as this, should be deemed inapplicable. [MIO 8-9]

 6 However, we do not regard the isolated reference to Defendant’s involvement in an

 7 unspecified “disturbance” as sufficiently inflammatory to require the extraordinary

 8 relief requested. See, e.g., Gonzales, 2000-NMSC-028, ¶¶ 36-37 (holding that a

 9 curative instruction minimized any prejudice from a witness’ inadvertent remark that

10 the defendant was incarcerated on a bomb charge, and accordingly, the trial court did

11 not abuse its discretion in denying a motion for mistrial); State v. Fike,

12 2002-NMCA-027, ¶ 18, 131 N.M. 676, 41 P.3d 944 (“Prejudice caused by an

13 unsolicited remark can usually be dissipated by a curative instruction.”).

14   {8}    Accordingly, for the reasons stated above and in the notice of proposed

15 summary disposition, we affirm.

16   {9}   IT IS SO ORDERED.



17
18                                        M. MONICA ZAMORA, Judge




                                             5
1 WE CONCUR:


2
3 JAMES J. WECHSLER, Judge


4
5 MICHAEL D. BUSTAMANTE, Judge




                                 6
