{
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  "name": "STATE of New Mexico, Plaintif-Appellee, v. Ruben CARMONA, Defendant-Appellant",
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    "judges": [
      "WOOD, C. J., and HERNANDEZ, J., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintif-Appellee, v. Ruben CARMONA, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nSUTIN, Judge.\nCarmona was convicted and sentenced for second degree murder. Section 40A-2-1, N.M.S.A.1953 (Repl. Vol. 6). He appeals.\nWe affirm.\nThe only claimed error is that during closing argument, the district attorney commented upon Carmona\u2019s failure to testify in violation of Carmona\u2019s right to remain silent under both the state and federal constitutions.\nThe record shows that during closing argument, the district attorney asked a series of questions. Carmona did not object during argument, but moved for a mistrial after the jury retired. The motion was denied.\nThe closing argument of Carmona shows that six pages contain comments on the testimony of his defense psychiatrist. In response, the district attorney hammered home a series of fifteen questions that the defense psychiatrist should have asked Carmona during the medical examination. We believe the purpose of asking the questions was to weaken the strength of Carmona\u2019s closing argument on the psychiatrist\u2019s testimony. Not one of the questions was a direct comment on Carmona\u2019s failure to testify nor was one of them comparable to comments made in State v. Miller, 76 N.M. 62, 412 P.2d 240 (1966); State v. Flores, 76 N.M. 134, 412 P.2d 560 (1966); State v. Ford, 80 N.M. 649, 459 P.2d 353 (Ct.App.1969); State v. Jones, 80 N.M. 753, 461 P.2d 235 (Ct.App.1969), where reversible error occurred. Carmona contends that the district attorney suggested \u201cto the jury those questions which in his opinion should have been asked of the defendant, Ruben Carmona.\u201d We do not agree. This contention loses its value in the same manner shown in State v. Lindsey, 81 N.M. 173, 464 P.2d 903 (Ct.App.1969), cert. den. 398 U.S. 904, 90 S.Ct. 1692, 26 L.Ed.2d 62, where the court said the statements made by the district attorney could not reasonably be construed as comments on Carmona\u2019s failure to testify.\nIf the fifteen questions asked could be construed to be \u201cindirect comment\u201d on Carmona\u2019s failure to testify, Carmona \u201copened the door\u201d in closing argument and effectively waived any claim of error. State v. Paris, 76 N.M. 291, 414 P.2d 512 (1966); State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967).\nA second reason no constitutional error occurred arises from instructions given by the trial court and Carmona\u2019s comments during closing argument.\nThe trial court, without objection on the part of Carmona, instructed the jury as follows:\n16. The Court instructs the jury that the defendant may, if he sees fit, become a witness in his own behalf; but the law imposes no obligation upon him to testify in his own behalf, or as to any material fact in the case, and the fact that the defendant did not take the stand and testify as a witness in his own behalf as to any material fact is not to be taken or considered by you in arriving at your verdict, and no presumption whatever is to be raised against him on account of not testifying in his own behalf.\n* * * * * *\n22. After these instructions on the law governing this case, the lawyers may make closing arguments or statements on the evidence and the law. These summaries can be of considerable assistance to you in arriving at your decision and you should listen carefully. You may give them such weight as you think proper. However, neither these final discussions nor any other remarks or arguments of the attorneys made during the course of the trial are to be considered by you as evidence nor as correct statements of the law if contrary to the law given to you in these instructions.\nDuring closing argument, Carmona\u2019s trial counsel told the jury there were twenty-three instructions the jury would have in the jury room to review, \u201cand I would urge you, at the outset, to review these instructions,\u201d and \u201cto look over these instructions,\u201d and \u201cthe instructions are here for you to look at. I just urge you look at them and to review them.\u201d The purpose of this portion of Carmona\u2019s argument was to alert the jury to the legal problems involved. This would include instruction No. 16, supra. That instruction was actually for the benefit of Carmona as a caution to the jury. State v. Buchanan, 76 N.M. 141, 412 P.2d 565 (1966); State v. Sandoval, 76 N.M. 570, 417 P.2d 56 (1966).\nUnder the foregoing circumstances, if the district attorney\u2019s questions were construed to be \u201cdirect comment\u201d or \u201cindirect comment,\u201d they did not amount to a violation of Carmona\u2019s constitutional rights and do not require a reversal. State v. Leyba, 80 N.M. 190, 453 P.2d 211 (Ct.App.1969); State v. Gonzales, 78 N.M. 218, 430 P.2d 376 (1967).\nFinally, we do not believe that objection to improper final closing argument was timely made. Carmona had a duty to object at the earliest time in order to alert the court before allowing the argument to continue. Objections made after the close of the district attorney\u2019s argument came too late in the day. State v. Montoya, 80 N.M. 64, 451 P.2d 557 (Ct. App.1968), aff. Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969). Carmona cannot excuse his failure to object during the state\u2019s argument to the jury \u201con the ground that to have done so would have magnified the error in the minds of the jury.\u201d State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct. App.1971).\nAffirmed.\nIt is so ordered.\nWOOD, C. J., and HERNANDEZ, J., concur.",
        "type": "majority",
        "author": "SUTIN, Judge."
      }
    ],
    "attorneys": [
      "Stephen G. Durkovich, Albuquerque, for defendant-appellant.",
      "David L. Norvell, Atty. Gen., Prentis Reid Griffith, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "500 P.2d 204\nSTATE of New Mexico, Plaintif-Appellee, v. Ruben CARMONA, Defendant-Appellant.\nNo. 828.\nCourt of Appeals of New Mexico.\nJuly 21, 1972.\nStephen G. Durkovich, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Prentis Reid Griffith, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0119-02",
  "first_page_order": 275,
  "last_page_order": 277
}