{ "id": 1552778, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Charles SELLERS, Defendant-Appellant", "name_abbreviation": "State v. Sellers", "decision_date": "1994-04-07", "docket_number": "No. 14490", "first_page": "644", "last_page": "651", "citations": [ { "type": "official", "cite": "117 N.M. 644" }, { "type": "parallel", "cite": "875 P.2d 400" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "100 N.M. 714", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588545 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "719" }, { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0714-01" ] }, { "cite": "730 P.2d 1193", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1987, "opinion_index": 0 }, { "cite": "105 N.M. 211", "category": "reporters:state", "reporter": "N.M.", "year": 1987, "opinion_index": 0 }, { "cite": "105 N.M. 238", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599049 ], "weight": 2, "pin_cites": [ { "page": "242" }, { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0238-01" ] }, { "cite": "715 P.2d 71", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1986, "opinion_index": 0 }, { "cite": "103 N.M. 798", "category": "reporters:state", "reporter": "N.M.", "year": 1986, "opinion_index": 0 }, { "cite": "104 N.M. 88", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594971 ], "weight": 4, "pin_cites": [ { "page": "94" }, { "page": "70" }, { "page": "95" }, { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0088-01" ] }, { "cite": "111 N.M. 309", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715084 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "314" }, { "page": "83" }, { "page": "314" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0309-01" ] }, { "cite": "107 N.M. 126", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597058 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "131" }, { "page": "1319" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0126-01" ] }, { "cite": "86 N.M. 212", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2829555 ], "weight": 3, "pin_cites": [ { "page": "214" }, { "page": "1163" } ], "opinion_index": 0, "case_paths": [ "/nm/86/0212-01" ] }, { "cite": "107 N.M. 603", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597084 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "605" }, { "page": "892" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0603-01" ] }, { "cite": "852 P.2d 682", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1993, "opinion_index": 0 }, { "cite": "115 N.M. 409", "category": "reporters:state", "reporter": "N.M.", "year": 1993, "opinion_index": 0 }, { "cite": "115 N.M. 250", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 725443 ], "weight": 2, "pin_cites": [ { "page": "254" }, { "page": "1077" } ], "opinion_index": 0, "case_paths": [ "/nm/115/0250-01" ] }, { "cite": "211 Cal.Rptr. 343", "category": "reporters:state", "reporter": "Cal. Rptr.", "pin_cites": [ { "page": "345-46" } ], "opinion_index": 0 }, { "cite": "165 Cal.App.3d 496", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2128882 ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/165/0496-01" ] }, { "cite": "356 U.S. 369", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6163723 ], "weight": 7, "year": 1958, "pin_cites": [ { "page": "384" }, { "page": "826" } ], "opinion_index": 0, "case_paths": [ "/us/356/0369-01" ] }, { "cite": "591 P.2d 947", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1979, "pin_cites": [ { "page": "955", "parenthetical": "en banc" } ], "opinion_index": 0 }, { "cite": "153 Cal.Rptr. 459", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1979, "pin_cites": [ { "page": "467", "parenthetical": "en banc" } ], "opinion_index": 0 }, { "cite": "23 Cal.3d 675", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2268498 ], "year": 1979, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/cal-3d/23/0675-01" ] }, { "cite": "113 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723297 ], "weight": 4, "pin_cites": [ { "page": "329" }, { "page": "619" }, { "page": "326" }, { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0324-01" ] }, { "cite": "106 N.M. 338", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 707881 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "341" }, { "page": "1046" }, { "page": "341" }, { "page": "1046" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0338-01" ] } ], "analysis": { "cardinality": 996, "char_count": 21967, "ocr_confidence": 0.693, "pagerank": { "raw": 9.649180430799443e-08, "percentile": 0.5279580006401917 }, "sha256": "c05c359cd45410d2439bbecbfbbeecd1f53e3ab8a99d6b020ff94485d0db429b", "simhash": "1:834c9b459313d749", "word_count": 3550 }, "last_updated": "2023-07-14T15:10:41.727131+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BIVINS and HARTZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Charles SELLERS, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nMINZNER, Chief Judge.\nDefendant appeals from a judgment entered after a jury trial convicting him of one count of trafficking in cocaine, a second-degree felony, contrary to NMSA 1978, Sections 30-31-20(A)(2) and (B)(1) (Repl. Pamp.1989), and one count of conspiracy to traffic cocaine, a third-degree felony, contrary to NMSA 1978, Sections 30-28-2 (Repl. Pamp.1984) and 30-31-20. On appeal, Defendant raises four issues: (1) the jury was not instructed properly on his entrapment defense; (2) he was entitled to a directed verdict on the trafficking count because he established entrapment as a matter of law; (3) there was insufficient evidence to support the conspiracy-to-traffic count; and (4) he was denied a fair trial by prosecutorial misconduct during closing argument. We affirm.\nFACTS\nAt trial Kel Smith testified that he had five felony convictions for check forgery and had been in prison four times. He became a police informant and was placed with undercover narcotics agent Carl Work in Alamogordo. By putting out the word that he had buyers, Smith found people wanting to sell drugs. Smith used that information to arrange for Work\u2019s drug buys and was paid $400 for each transaction.\nSmith and Defendant have been close friends since growing up together in Las Cruces. They are both in their forties. When Smith moved to Alamogordo the two men visited there and in Las Cruces, staying at each other\u2019s houses. According to Smith, he had put out the word that he had a buyer with money, and Defendant approached him in order to make some of the money. According to Defendant, however, Smith first approached him about the deal, telling him that Smith was going to sell some cocaine, but the buyer did not want Smith to handle the money because of prior drug problems. Defendant testified that he twice agreed, when asked, to do Smith a favor by participating in a drug deal, because they had been friends for a long time.\nSmith set up the first buy and drove Defendant to meet Work, who then gave Defendant $950 for an ounce of cocaine. Next, either Defendant or Smith acquired the cocaine, and the two of them went back to give it to Work. Smith and Defendant agree that one gave the other some of the cocaine for his participation in this and the other deals, but each claims he was the recipient and the other was the person who acquired the cocaine. Both also agree that Defendant had never sold cocaine prior to that day.\nSmith said he twice accompanied Defendant in dealing with Work, but Work and Defendant agreed that there were three deals. The second deal was basically a repeat of the first. Defendant and Smith had different versions of the third deal.\nWork testified that on August 8, 1991, he discussed purchasing cocaine with Jerry Holsome, a friend of theirs whom Smith had introduced to Work. Work gave Holsome money to purchase cocaine. Work became extremely concerned when Holsome did not return with the cocaine that same day, so he told Smith that if Smith could not get Holsome to deliver the cocaine, Smith was going to have to take Work to find Holsome. Work testified that on the following day, Defendant delivered to him the cocaine he had asked Holsome to purchase. Work and Defendant discussed the fact the delivery was \u201clight,\u201d and Defendant said that he \u201cwould see what he could do\u201d to remedy the problem.\nSmith testified he was at Holsome\u2019s house when Holsome went into another room and called Defendant, asking him to make a drug delivery. Defendant arrived shortly thereafter. On cross-examination Smith admitted that he neither heard nor saw Holsome make the call. Smith saw Holsome give Defendant a package of cocaine and heard Holsome ask Defendant to deliver it to Work. Smith drove Defendant to deliver the cocaine.\nDefendant claims that he showed up at Holsome\u2019s house simply because he decided to stop by to visit his friend. Defendant\u2019s version has Smith giving Defendant a package, asking him to deliver it to Work, and Smith driving him to make the delivery.\nDefendant was subsequently charged by grand jury indictment with three counts of trafficking cocaine and one count of conspiracy to traffic cocaine. He was acquitted of two counts of trafficking on the basis of the first two buys. We discuss below each of the issues Defendant raises, beginning with the jury instructions.\nENTRAPMENT JURY INSTRUCTIONS\nNew Mexico recognizes two entrapment defenses: one focuses on improper inducements used by the police (objective); the other focuses on the defendant\u2019s lack of predisposition to commit the crime charged (subjective). Baca v. State, 106 N.M. 338, 341, 742 P.2d 1043, 1046 (1987). Defendant proposed jury instructions based on Baca, which the trial court rejected. The instruction given stated:\nEvidence has been presented that the defendant was induced to commit the crime by law enforcement officials or their agents using unfair methods of persuasion that created a substantial risk that the crime would be committed by a reasonable person in defendant\u2019s circumstances who was not otherwise ready and willing to commit the crime. For you to find the defendant guilty, the state must prove to your satisfaction beyond a reasonable doubt that the defendant was not induced to commit the crime by such methods.\nThis instruction is the one suggested in State v. Sheetz, 113 N.M. 324, 329, 825 P.2d 614, 619 (Ct.App.1991).\nDefendant argues that the instruction given misstated New Mexico law by injecting a predisposition factor into the law of objective entrapment. The instruction is incorrect, according to Defendant, because it contains language stating that the unfair methods of persuasion must create \u201c \u2018a substantial risk that the crime would be committed by a reasonable person in defendant\u2019s circumstances who was not otherwise ready and willing to commit the crime.\u2019 \u201d We disagree for two reasons.\nFirst, as the State has argued, the instruction provides guidance for the jury by articulating an appropriate \u201c \u2018reasonable person\u2019 \u201d standard. Most jurors are not likely to have been in similar circumstances and thus might not naturally imagine that a reasonable person would be in such circumstances. Thus, the jury should be reminded to consider the effect of police activity on a reasonable, law-abiding person. People v. Barraza, 23 Cal.3d 675, 153 Cal.Rptr. 459, 467, 591 P.2d 947, 955 (1979) (en banc).\nSecond, the objective test, according to Justice Frankfurter, \u201cshifts attention from the record and predisposition of the particular defendant to the conduct of the police and the likelihood, objectively considered, that it would entrap only those ready and willing to commit crime.\u201d Sherman v. United States, 356 U.S. 369, 384, 78 S.Ct. 819, 826, 2 L.Ed.2d 848 (1958). Simply stopping the instruction after \u201creasonable person in defendant\u2019s circumstances\u201d would not be satisfactory because such an instruction would bar police conduct that would induce only those who intended to commit the crime and were simply awaiting an opportunity. The language, \u201cwho was not otherwise ready and willing to commit the crime,\u201d does not shift the focus to the defendant, but rather provides the jury the remainder of the necessary framework within which to assess the police action.\nThe language of the Sheetz instruction finds support in commentary explaining the Model Penal Code\u2019s adoption of the objective standard. Model Penal Code \u00a7 2.13(l)(b) (1985). In explaining the objective theory, the Code states:\nFor most methods of inducement or persuasion, the crucial inquiry under Subsection (l)(b) is whether they create a substantial risk that offenses will be committed by persons other than those who are ready to commit them. The main criterion for evaluating the propriety of police methods is, therefore, the likely effect of such methods on law-abiding persons, and the propensities of the particular defendant are irrelevant.\nId. commentary 3 at 411. Furthermore, a footnote to this commentary states that even though the objective defense requires evaluation of police conduct rather than of a defendant\u2019s predisposition, such an evaluation must consider surrounding circumstances, and this sometimes includes defendant\u2019s prior activities. Id., 356 U.S. at 411-12 n. 17, 78 S.Ct. at 879-80 n. 17.\nThe language from Sheetz instructs the jury to look at the activities of the police; it does not require the jury to make a determination as to this specific defendant\u2019s predisposition, or lack thereof, to traffic cocaine. Rather, the language provides the jury with handles by which to grasp the problem presented when a defendant raises objective entrapment. The language should assist the jury in reaching an appropriate resolution of the factual issues with which they are charged when asked to determine whether \u201cthe police exceeded the standards of proper investigation.\u201d Baca, 106 N.M. at 341, 742 P.2d at 1046. That is all the instruction can be expected to accomplish. See People v. Grant, 165 Cal.App.3d 496, 211 Cal.Rptr. 343, 345-46 (Ct.App.1985). See generally The Honorable Leslie C. Smith, \u201cEntrapment,\u201d Vol. 32, No. 50, SBB 6, 7 (Dec. 16, 1993), U.J.I. 14-5160 (discussing the proposed new instruction on objective entrapment). We address the second and third issues next and together, because they both involve sufficiency of the evidence.\nSUFFICIENCY OF THE EVIDENCE\nDefendant\u2019s second issue is that he was entrapped as a matter of law and that the trial court erred in denying his motion for a directed verdict on all trafficking counts. In resolving a motion for directed verdict, the trial court had to determine whether to believe Defendant regarding the incidents of cocaine trafficking. See State v. Savage, 115 N.M. 250, 254, 849 P.2d 1073, 1077 (Ct.App.1992), cert. quashed, 115 N.M. 409, 852 P.2d 682 (1993). In this case there is conflicting testimony going to the entrapment issue. For example, Defendant and Smith each testified that it was the other who initiated Defendant\u2019s involvement in the trafficking. There was also a question regarding whether there was a government agent on each side of the transactions (did Smith or Defendant acquire the cocaine to sell to Work). Thus, there were questions of fact, including Defendant\u2019s credibility, which required that the case go to the jury. Sheetz, 113 N.M. at 326, 825 P.2d at 616.\nDefendant also disputes the sufficiency of the evidence offered to prove conspiracy to traffic cocaine. The State has the burden of proving beyond a reasonable doubt each element of the crime. State v. Duran, 107 N.M. 603, 605, 762 P.2d 890, 892 (1988). Defendant contends that the State failed to meet that burden as to the conspiracy charge. We must determine whether the evidence, either direct or circumstantial, is sufficient to show an agreement between Defendant and Holsome to traffic cocaine. See State v. Ross, 86 N.M. 212, 214, 521 P.2d 1161, 1163 (Ct.App.1974). This agreement can be in the form of an implied understanding and can be inferred from facts and circumstances showing that the parties united to accomplish a crime. Id. When determining whether there is sufficient evidence to support an essential element of a crime or a criminal conviction, this Court must view the evidence in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of the verdict. State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319 (1988).\nThe State presented evidence through Smith and Work regarding Defendant\u2019s interactions with Holsome. The evidence supported an inference that Holsome called Defendant and, upon his arrival at Holsome\u2019s, that Defendant agreed to deliver the cocaine to Work. Defendant\u2019s statement that he would see what he could do to remedy the \u201clight\u201d delivery was additional evidence upon which the jury was entitled to rely in finding the requisite agreement. Defendant presented conflicting testimony, but the evidence presented by the State was sufficient to support the jury\u2019s conviction of Defendant on charges of conspiracy to traffic cocaine. See \u00a7\u00a7 30-28-2(A) & 30-31-20(A)(2).\nCLOSING ARGUMENT\nFinally, Defendant asserts that his rights to due process and to an impartial jury were violated by the prosecutor\u2019s improper closing remarks. Defendant moved for a new trial, claiming that the jury was not properly instructed and that the prosecutor\u2019s remarks, either individually or cumulatively, resulted in fundamental constitutional error. The trial court denied Defendant\u2019s motion.\nProsecutors are allowed reasonable latitude in closing argument. State v. Jett, 111 N.M. 309, 314, 805 P.2d 78, 83 (1991). Such latitude, however, does not negate the requirement that the prosecutor\u2019s closing remarks be based on evidence or be in response to defendant\u2019s argument. State v. Taylor, 104 N.M. 88, 94, 717 P.2d 64, 70 (Ct.App.), cert. denied, 103 N.M. 798, 715 P.2d 71 (1986). Nor can the prosecutor misstate the law to the jury. State v. Gonzales, 105 N.M. 238, 242, 731 P.2d 381, 385 (Ct.App.1986), cert. quashed, 105 N.M. 211, 730 P.2d 1193 (1987). If the prosecutor\u2019s closing comments were inappropriate, Defendant must show that the comments were prejudicial and prevented him from receiving a fair trial in order to prevail on appeal. Taylor, 104 N.M. at 95, 717 P.2d at 71.\nDefendant lists specific comments that he argues constitute reversible error. He contends that the first two comments were not supported by the evidence. He also challenges two comments as misstating the burden of proof and another as an improper reference to the prosecutor\u2019s authority. First we consider the individual comments, then we consider the remarks as a whole.\nThe prosecutor noted in closing argument that Defendant cares for his invalid mother \u201cwhen he\u2019s not at The Corner partying with his friends and when he\u2019s not doing cocaine with Jerry Holsome, and when he\u2019s not engaging in a whole variety of other illegal activities.\u201d Defense counsel objected to that statement, and the trial court sustained the objection. The State argues that there was evidence presented that Defendant partied at The Corner and used cocaine with Jerry Holsome, and that the comment regarding other illegal activities was in reference to the trafficking and conspiracy charges at issue in this trial. We agree.\nThe prosecutor made a second reference, to \u201cknown drug traffickers.\u201d The whole exchange before the jury was as follows:\nProsecutor: You cannot allow known drug traffickers who make hand-to-hand sales to agents (unintelligible) ...\nDefense: Objection, your honor.\nJudge: Sustained.\nDefense: My client\u2019s not a known drug trafficker.\nProsecutor: You cannot find an individual in this particular case, who has admittedly engaged in drug trafficking, to be found not guilty. That\u2019s what the laws are all about.\nThe trial court offered to admonish the jury to disregard the prosecutor\u2019s comments, but Defendant declined the offer. The court then invited Defendant to cure the matters during closing argument to the jury.\nThe reference to \u201cknown drug traffickers\u201d apparently depended on Defendant\u2019s acknowledgment that he participated in the first two buys. The trial court properly sustained the objection, and defense counsel properly argued in closing that there was no evidence presented that Defendant had ever trafficked drugs in the past, and that in the present ease he contended he had been entrapped to serve as a conduit in a circular drug transaction. However, we do not believe Defendant has shown prejudice sufficient to require reversal. That is because Defendant must show that the comments prevented him from receiving a fair trial. The trial court\u2019s decision to sustain the objection and its subsequent offer to admonish the jury would substantially reduce the possibility of prejudice to Defendant. Also, the prosecutor\u2019s follow-up statement indicated to the jury that he meant \u201cadmitted drug trafficker\u201d when he said \u201cknown drug trafficker,\u201d thus further greatly diminishing the possibility that the jury would infer that the prosecutor knew about trafficking by Defendant that was not in evidence at trial. On the state of this record, the trial court was within its discretion in determining that the prosecutor had worded his remarks poorly and that sustaining the objection and offering to admonish the jury were adequate remedies.\nAppellate review provides a very limited opportunity for relief from poorly worded remarks, and the trial court\u2019s power to grant a new trial depends on the trial court being persuaded that due process was denied. In the end, the most important protection the law affords defendants against prosecutorial misconduct is the prosecutor\u2019s continued awareness and conscientious execution of his or her responsibility as a representative of the State.\nTwo comments made during closing argument concerned the burden of proof. Those statements are contained in the following exchange:\nProsecution: Now the defendant has an obvious reason for coming up with this story, a very obvious reason. He\u2019s going to be found guilty if his story isn\u2019t believable or if he can\u2019t come up with something to rebut the obvious testimony.\nDefense: Objection, your honor, I believe that he\u2019s misstating the burden.\nProsecution: The burden is on the state. There\u2019s no doubt about that. The burden is on the state to show the jury, a unanimous jury, beyond a reasonable doubt, that the defendant committed the crime, and that he was not induced by a devious and conniving and cunning Kel Smith, and that he wasn\u2019t otherwise predisposed to commit the crime. Now what that means is, if you believe that, what it all boils down to when you really get down to it is if you believe the defendant carte blanche, if you believe every single word he says then he\u2019s entitled to the entrapment defense and you\u2019re entitled to find him not guilty.\nDefense: Objection, your honor. I believe he\u2019s still misstating it. You don\u2019t have to believe everything that the defendant says.\nThe prosecutor\u2019s statement to the jury that they have to believe every single word Defendant said in order to find him not guilty was error because it is a misstatement of the law. The trial court properly sustained defense counsel\u2019s objection and immediately gave the following instruction:\nLadies and gentlemen, recall my instructions, irrespective of what counsel tells you during closing arguments, it\u2019s not evidence, it\u2019s not necessarily an accurate reflection of what the law is. The law of this case is contained in the instructions that I just read to you and you\u2019ll receive these instructions when you go into the jury room to deliberate, and any conflict between what either lawyer tells you in closing argument and what is in the written instructions that I gave you, must be resolved in favor of the written instructions.\nThe curative instruction was sufficient to offset any prejudicial effect due to the prosecutor\u2019s erroneous statement.\nWhile it is possible that the jury could have been confused regarding the burden of proof as a result of these remarks, we believe any possibility of error was cured. The prosecutor clearly reminded the jury that the State has the burden of proving the crime beyond a reasonable doubt. Also, the trial court gave the jury written instructions stating the correct burden of proof surrounding the entrapment issue. There is a presumption that the jury follows the instructions they are given. State v. Case, 100 N.M. 714, 719, 676 P.2d 241, 246 (1984).\nFinally, Defendant points to the prosecutor\u2019s statement, \u201cI\u2019m not trying to distort things\u2014I\u2019m really not\u2014I have no interest in that\u201d as placing the prosecutor\u2019s credibility at issue. Once again, defense counsel objected and the objection was sustained. Defendant presents this statement as exploiting the influence of the prosecutor\u2019s office and undermining the prosecutor\u2019s objective detachment. We disagree with Defendant\u2019s interpretation of this comment. We also disagree with Defendant\u2019s position that this is analogous to the situation where a prosecutor expresses his personal view concerning the defendant\u2019s guilt. Rather, it appears that the prosecutor was attempting to correct any mistaken impression he may have given in his previous statement.\nDefendant suggests that prejudice can be shown by his acquittal of the first two counts of trafficking, but not the third. However, the first and second counts had identical participants, and the deal was handled in the same fashion each time. In the third count there was another person involved, and the scenario of the transaction was significantly different. Thus, we conclude Defendant has failed to prove that the comments, when placed in the context of the trial and viewed with the curative measures taken, were so prejudicial as to deprive him of his right to a fair trial.\nThe trial court is given, and must exercise, considerable discretion in evaluating the propriety of argument and in curing any alleged defects. Jett, 111 N.M. at 314, 805 P.2d at 83. The trial court denied Defendant\u2019s motion for new trial, stating that the comments had not deprived Defendant of a fair trial. We believe that the court acted within the proper bounds of its discretion, and we will not reverse a decision denying a new trial on such a record.\nCONCLUSION\nWe are satisfied that the above assertions of error raised in Defendant\u2019s brief did not deprive Defendant of any due process rights. Therefore, for the reasons stated above, we affirm the trial court.\nIT IS SO ORDERED.\nBIVINS and HARTZ, JJ., concur.", "type": "majority", "author": "MINZNER, Chief Judge." } ], "attorneys": [ "Tom Udall, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.", "Sammy J. Quintana, Chief Public Defender, Susan Roth, Asst. Appellate Defender, Santa Fe, for defendant-appellant." ], "corrections": "", "head_matter": "875 P.2d 400\nSTATE of New Mexico, Plaintiff-Appellee, v. Charles SELLERS, Defendant-Appellant.\nNo. 14490.\nCourt of Appeals of New Mexico.\nApril 7, 1994.\nCertiorari Denied May 24, 1994.\nTom Udall, Atty. Gen., Katherine Zinn, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.\nSammy J. Quintana, Chief Public Defender, Susan Roth, Asst. Appellate Defender, Santa Fe, for defendant-appellant." }, "file_name": "0644-01", "first_page_order": 680, "last_page_order": 687 }