{
  "id": 2866701,
  "name": "STATE of New Mexico, Petitioner, v. Ruben B. BACA, Jr., Respondent",
  "name_abbreviation": "State v. Baca",
  "decision_date": "1976-04-14",
  "docket_number": "No. 10793",
  "first_page": "204",
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    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
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    "name": "N.M."
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  "last_updated": "2023-07-14T20:56:52.908635+00:00",
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  "casebody": {
    "judges": [
      "OMAN, C. J., and STEPHENSON, MONTOYA and SOSA, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Petitioner, v. Ruben B. BACA, Jr., Respondent."
    ],
    "opinions": [
      {
        "text": "OPINION\nMcMANUS, Justice.\nThis case comes to us on petition by the state for a writ of certiorari, after the Court of Appeals reversed defendant\u2019s conviction and remanded for a new trial. In its petition the state argues that the Court of Appeals erred in reversing the trial court\u2019s decision not to grant a mistrial when a witness, in response to a question by the state, commented on the defendant\u2019s silence. Under the circumstances of this case we agree, and reverse the Court of Appeals. (It should be noted that the decision of the Court of Appeals came to us in the form of a memorandum opinion which was never published.)\nDuring the course of the trial, the state called Detective Crespin and asked him whether he had \"at any time interview [ed] the defendant ?\u201d He responded:\n\u201cYes, my first contact with the defendant was about 12:05 on the 6th of September. I took him from the jail section, took him upstairs to our investigation section and the first thing I did was advise him of his rights to which he told me he understood. I filled out the standard advice of rights form, and asked him to read it, and read it to him, asked if he understood his rights, which he did. I also had him initial each statement to the form to indicate that he read and understood each one. I then explained a waiver of rights to him and he told me at the time he did not wish to talk to me, he wanted an attorney before he said anything. At that time I terminated the interview, took him to the jail.\u201d\nThis testimony appears to have been unsolicited, and possibly inadvertent. Nevertheless, the Court of Appeals held this testimony to be so intolerably prejudicial as to require reversal. In arriving at this conclusion the Court relied upon its previous case of State v. Lara, 88 N.M. 233, 539 P.2d 623 (Ct.App.1975) which held that:\n\u201cIf defendant\u2019s silence lacks significant probative value, any reference to defendant\u2019s silence has an intolerable prejudicial impact requiring reversal.\u201d\nWe, therefore, find it necessary to distinguish and limit State v. Lara to those situations where the prosecutor is directly responsible for the improper comment on the defendant\u2019s silence.\nIn State v. Lara, the state prosecutor specifically inquired about the defendant\u2019s silence. The Court of Appeals based its reversal on the reasoning in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). There the United States Supreme Court affirmed a reversal of Hale\u2019s conviction holding that:\n\u201c * * * the probative value of respondent\u2019s pretrial silence in this case was outweighed by the prejudicial impact of admitting it into evidence.\u201d Id. 95 S.Ct. at 2135.\nWe would agree that where, as in United States v. Hale, and State v. Lara, the prosecutor comments on or inquires about the defendant\u2019s silence, such a reference can have an intolerable prejudicial impact and may require reversal under the \u201cplain error\u201d rule of our Rules of Evidence (rule 103(d)).\nWe are unwilling to go so far as to say that any comment on the defendant\u2019s silence must result in a mistrial, or a reversal of the defendant\u2019s conviction. We would draw the line between those comments which can be directly attributed to the prosecutor and those comments incorporated within the testimony of a witness. Any reference to the defendant\u2019s silence by the state, if it lacks significant probative value, constitutes plain error under rule 103(d) of the New Mexico Rules of Evidence. As such it would require reversal, as stated in the Lara case, even if the defendant fails to timely object. However, where the witness refers to the defendant\u2019s silence, the defendant must object to this testimony as required by rule 103(a) in order to preserve the error. In such a situation the defendant would simply be objecting to the testimony of the witness as being inadmissible under either rule 403 or rule 402 of the New Mexico Rules of Evidence. The trial court would rule on this objection and defendant could obtain a review of that ruling on appeal.\nIn this case the defendant failed to timely object to Detective Crespin\u2019s lengthy response. We are inclined to say that the defendant thereby waived his right to object to this testimony. Nevertheless, assuming, arguendo, that the defendant\u2019s motion for a mistrial constituted a timely objection to the introduction of the testimony, we still come to the same conclusion, i. e., that the trial court correctly denied that motion since there was no showing that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury as required by evidentiary rule 403.\nThe Court of Appeals is reversed as to this issue and the judgment of the trial court is affirmed and reinstated.\nIT IS SO ORDERED.\nOMAN, C. J., and STEPHENSON, MONTOYA and SOSA, JJ., concur.",
        "type": "majority",
        "author": "McMANUS, Justice."
      }
    ],
    "attorneys": [
      "Toney Anaya, Atty. Gen., Don Montoya, Asst. Atty. Gen., Santa Fe, for petitioner.",
      "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Santa Fe, for respondent."
    ],
    "corrections": "",
    "head_matter": "549 P.2d 282\nSTATE of New Mexico, Petitioner, v. Ruben B. BACA, Jr., Respondent.\nNo. 10793.\nSupreme Court of New Mexico.\nApril 14, 1976.\nRehearing Denied May 5, 1976.\nToney Anaya, Atty. Gen., Don Montoya, Asst. Atty. Gen., Santa Fe, for petitioner.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Santa Fe, for respondent."
  },
  "file_name": "0204-01",
  "first_page_order": 240,
  "last_page_order": 241
}