{
  "id": 1573130,
  "name": "Paul GONZALES, Petitioner, v. STATE of New Mexico, Respondent",
  "name_abbreviation": "Gonzales v. State",
  "decision_date": "1980-06-23",
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  "last_updated": "2023-07-14T18:18:16.712923+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "SOSA, C. J., and EASLEY, PAYNE and FELTER, JJ., concur."
    ],
    "parties": [
      "Paul GONZALES, Petitioner, v. STATE of New Mexico, Respondent."
    ],
    "opinions": [
      {
        "text": "OPINION\nFEDERICI, Justice.\nPetitioner-defendant was charged with aggravated battery with a deadly weapon and found guilty. The Court of Appeals affirmed. Defendant filed a petition for writ of certiorari with this Court. We reverse.\nThe issue presented on appeal and by the writ of certiorari is whether the prosecutor\u2019s closing argument included a comment on defendant\u2019s failure to testify in violation of defendant\u2019s rights under the Fifth Amendment of the United States Constitution and art. II, \u00a7 15 of the New Mexico Constitution.\nThe comment by the prosecution which defendant considered prejudicial was:\nAnd did you hear one word from the defense, one word of denial that he beat him with this 2X4. Not one word of denial. . . What was his justification for doing to Byron what he did? He didn\u2019t tell you, the defense didn\u2019t tell you what the reason was. He didn\u2019t give you any justification. He didn\u2019t deny that he hit him with a 2 X 4 and he didn\u2019t tell you why.\nIt is probable that the district attorney meant his comments to apply only to the arguments of defense counsel, but his choice of words do not exclude a reasonable interpretation that he was making a direct comment on Gonzales\u2019 failure to testify.\nThe Fifth Amendment to the United States Constitution forbids comment by the prosecution on the accused\u2019s failure to testify at trial. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). That such a comment is reversible error is well-settled in New Mexico. State v. Miller, 76 N.M. 62, 412 P.2d 240 (1966); State v. Sneed, 76 N.M. 349, 414 P.2d 858 (1966). The above comment by the prosecutor was a direct comment on the defendant\u2019s failure to testify and constituted reversible error.\nThe majority in the Court of Appeals opinion cites State v. Frank, 92 N.M. 456, 589 P.2d 1047 (1979), State v. Dominguez, 91 N.M. 296, 573 P.2d 230 (Ct.App.1977), and State v. Carmona, 84 N.M. 119, 500 P.2d 204 (Ct.App.1972), in support of its conclusion that the comments of the prosecutor were harmless. Frank is consistent with our holding in this case. Dominguez and Carmona are distinguishable.\nIn Frank, this Court held that if there is a reasonable possibility that the inappropriate remarks of the prosecutor caused a jury to consider the failure of even the wife to testify or caused it to reach a verdict it might not otherwise have reached, then those comments are grounds for reversal. In that case, this Court also stated whatever the prosecutor\u2019s intentions might have been and even if spoken with the purest of motives, if in fact the comments related to the failure of the defendant to testify, they were prejudicial and required that the conviction be set aside.\nIn Dominguez, the Court of Appeals stated that the comment by the prosecution was at most an \u201cindirect comment\u201d on defendant\u2019s failure to testify. In the case at bar, the prosecutor\u2019s comment was a \u201cdirect comment\u201d on defendant\u2019s failure to testify. We do not believe the jury could have felt that someone else other than the defendant was being referred to in the specific comments made by the prosecution in his closing argument.\nIn Carmona, the Court of Appeals held that the comment was proper under the facts in that case. However, the court also stated that even if the prosecutor\u2019s remark could have been considered an \u201cindirect comment,\u201d the defendant in his closing argument, had \u201copened the door\u201d for the prosecutor\u2019s subsequent comments.\nThe trial court and the Court of Appeals are reversed and the defendant is granted a new trial.\nIT IS SO ORDERED.\nSOSA, C. J., and EASLEY, PAYNE and FELTER, JJ., concur.",
        "type": "majority",
        "author": "FEDERICI, Justice."
      }
    ],
    "attorneys": [
      "William H. Lazar, El Rito, for petitioner.",
      "Jeff Bingaman, Atty. Gen., Santa Fe, for respondent."
    ],
    "corrections": "",
    "head_matter": "612 P.2d 1306\nPaul GONZALES, Petitioner, v. STATE of New Mexico, Respondent.\nNo. 12954.\nSupreme Court of New Mexico.\nJune 23, 1980.\nWilliam H. Lazar, El Rito, for petitioner.\nJeff Bingaman, Atty. Gen., Santa Fe, for respondent."
  },
  "file_name": "0495-01",
  "first_page_order": 531,
  "last_page_order": 532
}