Certiorari Granted, No. 31,732, July 1, 2009
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2009-NMCA-064
Filing Date: May 7, 2009
Docket No. 27,338
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CHRISTOPHER SMILE,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Jerry H. Ritter, Jr., District Judge
Gary K. King, Attorney General
Santa Fe, NM
James W. Grayson, Assistant Attorney General
Albuquerque, NM
for Appellee
Hugh W. Dangler, Chief Public Defender
Mary A. Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
FRY, Chief Judge.
{1} Defendant appeals from his conviction for aggravated stalking in violation of NMSA
1978, Section 30-3A-3.1 (1997). Defendant argues that his conduct was insufficient to
support a charge of aggravated stalking, that testimony regarding statements he made to the
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police prior to and after his arrest should have been suppressed because he was not read his
Miranda rights, and that the trial court erroneously admitted evidence that Defendant had
attempted to plead guilty at his first appearance. For the following reasons, we affirm
Defendant’s conviction.
I. BACKGROUND
{2} Defendant and Tamisha, the victim of Defendant’s stalking, met online. After having
regular telephone conversations over a period of time, Defendant traveled from Little Rock,
Arkansas, to Alamogordo, New Mexico, to meet Tamisha in person. After initially staying
in a motel room that Tamisha had rented, Defendant stayed for a few weeks at an apartment
being rented by Tamisha’s friend Samantha. Although the relationship between Tamisha
and Defendant was initially friendly, about three weeks after Defendant had arrived in
Alamogordo, Tamisha became concerned that Defendant was more serious about the
relationship than she was. Tamisha decided that Defendant needed to move out of
Samantha’s apartment, so she packed up Defendant’s belongings and left them with one of
Defendant’s co-workers.
{3} Later that evening, Defendant showed up at Samantha’s apartment looking for
Tamisha. Samantha told Defendant that Tamisha was not there and, according to the girls’
testimony, Defendant pretended to leave. As soon as Tamisha started to talk, however,
Defendant began yelling from outside that he knew she was in there and started pounding
on the door because, according to his testimony, he was enraged that Samantha had lied to
him and that Tamisha was hiding from him. After cursing and shouting for Tamisha to come
out of the apartment to no avail, Defendant threatened to damage Tamisha’s and Samantha’s
cars that were parked in front of the apartment. The girls immediately called the police and
ran outside to ensure that their vehicles were not damaged.
{4} Following this incident, Tamisha and Defendant reconciled for a short time.
However, the relationship deteriorated quickly after Tamisha went on a weekend trip with
some of her friends. Defendant testified that while Tamisha was gone, he had a vision while
staring at a blank television screen in which he saw Tamisha being intimate with another
man. When Tamisha returned to Alamogordo, Defendant went to Tamisha’s apartment and
accused her of cheating on him while she was out of town. Tamisha told Defendant that they
were just friends and that she had in fact been with someone else over the weekend.
Defendant became enraged by this comment and started to move toward Tamisha and her
friend Hope in a threatening manner. In addition, Defendant stated, “[if] I see [you and your
new boyfriend] together, I’m killing both of you.” Fearing for their safety, Tamisha and
Hope pushed Defendant out of the apartment and called the police. By the time the police
arrived, Defendant had left the scene. The responding officer advised Tamisha that the best
way to stop Defendant from threatening her was to obtain a temporary restraining order
(TRO). Because of the threats Defendant had made to kill her and her new boyfriend, the
threat he had made to damage her car after she took his belongings to his workplace, and
because Defendant had left a number of threatening letters in Tamisha’s mailbox and had
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made a threatening phone call to Tamisha’s father, Tamisha obtained a TRO the following
day.
{5} On the day Tamisha obtained the TRO, but before Defendant was served, Tamisha
pulled into the parking lot of her apartment complex and saw Defendant sitting in a chair
holding “Ninja-style” knives that he had recently purchased. Fearing for her safety, Tamisha
quickly backed out of the parking lot, called 911, and circled the block until the police
arrived. When the police arrived and began talking to Defendant, Defendant stated that he
was there to “put the fear of God” into Tamisha for what she had done to him and that he
could accomplish this in three ways: by letting it go, by calling his “homies” from Arkansas
to help him out, or by taking care of it himself using the Ninja skills he had studied in Japan
and intimidation methods he had learned as an ex-felon. While Defendant was talking to
Officer Guinn, the officer who had responded to Tamisha’s 911 call, another officer arrived
and served Defendant with the TRO Tamisha had obtained earlier in the day. Officer Guinn
explained the seriousness of the TRO to Defendant, and Defendant acknowledged that he
understood the consequences that would arise from a violation of the order. Before Officer
Guinn took Defendant back to his residence, however, Defendant stated that a piece of paper
was not going to stop him from inflicting pain and fear on Tamisha.
{6} Following this incident, Tamisha, who worked a night shift, went to work. When she
returned home the next morning, she found a copy of the TRO in her door with a handwritten
message stating, “It ain’t over, [b]itch, I want to see your man[;] [w]here he at?” Tamisha
recognized the handwriting as Defendant’s, immediately became concerned for her safety,
and called the police. Officer Jackson responded to the call and began investigating the TRO
violation. Officer Jackson later met with Officer Guinn, and the two officers went to
Defendant’s residence to determine if he had written the threatening message on the TRO.
After a brief investigation, Defendant was arrested for violating the TRO. After his arrest,
however, the officers determined that Defendant had violated Section 30-3A-3.1, and the
State charged Defendant with aggravated stalking due to the pattern of threatening behavior
he had engaged in and his threatening conduct in violation of the TRO.
II. DISCUSSION
A. The Aggravated Stalking Statute
{7} At trial, after the State rested its case, Defendant argued that the State had presented
insufficient evidence to support a conviction for aggravated stalking because he had engaged
in only one instance of threatening conduct after he was served with the TRO, and Section
30-3A-3.1 requires that there be a pattern of conduct after the TRO is served. The trial court
disagreed and concluded that Section 30-3A-3.1 requires only one threatening act following
the issuance of a TRO. On appeal, Defendant makes the same argument that he made in the
trial court.
1. Standard of Review
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{8} Interpretation of a statute is a question of law that we review de novo. State v. Davis,
2007-NMCA-022, ¶ 6, 141 N.M. 205, 152 P.3d 848. “Our ultimate goal in statutory
construction is to ascertain and give effect to the intent of the Legislature.” State v. Smith,
2004-NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022 (internal quotation marks and citation
omitted). To reach this goal, we begin “by looking first to the words chosen by the
Legislature and the plain meaning of the Legislature’s language.” State v. Davis, 2003-
NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064 (internal quotation marks and citation
omitted). “When a statute contains language which is clear and unambiguous, we must give
effect to that language and refrain from further statutory interpretation.” State v. Johnson,
2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233 (internal quotation marks and citation
omitted).
2. The Aggravated Stalking Statute Requires Only One Act in Furtherance of a
Pattern of Stalking
{9} Defendant was charged with and convicted of aggravated stalking, a fourth degree
felony, pursuant to the Harassment and Stalking Act (the Act). NMSA 1978, §§ 30-3A-1
to -4 (1997).
A. Aggravated stalking consists of stalking perpetrated by a
person:
(1) who knowingly violates a permanent or temporary
order of protection issued by a court, except that mutual violations of such
orders may constitute a defense to aggravated stalking;
(2) in violation of a court order setting conditions of
release and bond;
(3) when the person is in possession of a deadly weapon; or
(4) when the victim is less than sixteen years of age.
§ 30-3A-3.1(A)(1)-(4). Stalking is defined as
knowingly pursuing a pattern of conduct that would cause a reasonable
person to feel frightened, intimidated or threatened. The alleged stalker must
intend to place another person in reasonable apprehension of death, bodily
harm, sexual assault, confinement or restraint or the alleged stalker must
intend to cause a reasonable person to fear for his safety or the safety of a
household member. In furtherance of the stalking, the alleged stalker must
commit one or more of the following acts on more than one occasion:
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(1) following another person, in a place other than the
residence of the alleged stalker;
(2) placing another person under surveillance by being
present outside that person’s residence, school, workplace or motor vehicle
or any other place frequented by that person, other than the residence of the
alleged stalker; or
(3) harassing another person.
§ 30-3A-3(A)(1)-(3). Defendant’s aggravated stalking conviction was based on his violation
of Section 30-3A-3.1(A)(1), stalking perpetrated by a person who knowingly violates a
temporary order of protection.
{10} Our Legislature first enacted the Act in 1993. 1993 N.M. Laws, ch. 86, § 2. The
1993 Act criminalized stalking but made the crime a misdemeanor. Id. It was only when
an offender was convicted of a third stalking offense that the crime escalated to a fourth
degree felony. 1993 N.M. Laws, ch. 86, § 3(C). In 1997, the Legislature repealed the 1993
Act and enacted the current Act. 1997 N.M. Laws, ch. 10. The new Act made a second and
subsequent conviction a fourth degree felony and created the new crime of aggravated
stalking, also a fourth degree felony. § 30-3A-3(C). Thus, the modifications imposed a
harsher punishment upon those offenders who posed a significant danger to their victims
because of repeat offenses, the age of the victim, the presence of a deadly weapon, or the
offender’s disregard of a court order or a court sanction. See § 30-3A-3.1. By changing the
penalty for an offender’s second conviction from a misdemeanor to a felony, for example,
the Legislature ensured that an individual who has already been convicted of stalking
receives a harsher punishment when he or she ignores the sanctions imposed by the first
offense and continues to stalk a victim. Similarly, the Legislature imposed a harsher penalty
when a stalker violates a TRO or a court order because a stalker who ignores such an order
ostensibly poses a more serious threat to his or her victim. Having already been warned that
his or her conduct is prohibited, an individual who continues to stalk disregards the rule of
law and poses a significant threat to the safety of his or her victim.
{11} Despite the Legislature’s intent to provide greater protection to stalking victims who
have obtained a TRO, Defendant argues that the plain language of the statute requires the
State to prove that there was a pattern of threatening conduct after the TRO was served.
Under Defendant’s interpretation of the statute, an individual would be charged with
misdemeanor stalking for any threatening conduct that occurred prior to the issuance of a
TRO and could only be charged with aggravated stalking if a new pattern of conduct
occurred after the TRO has been issued. In support of this contention, Defendant argues that
because there is a separate offense for a single violation of a protective order, see NMSA
1978, § 40-13-6(F) (2008) (establishing that a single violation of a protective order is a
misdemeanor offense), the Legislature must have intended that there be multiple violations
of a protective order before an aggravated stalking charge can be brought.
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{12} We are not persuaded. As the State points out, it is possible to violate a restraining
order in a manner that would not satisfy the requirements of the stalking statute. If, for
example, Defendant had violated the TRO by telephoning Tamisha in a non-threatening
manner, he could have been charged with violating the restraining order but not with stalking
because the definition of stalking requires behavior that causes a reasonable person to feel
frightened, intimidated, or threatened, and the stalker must intend to make the victim fear for
his or her safety or the safety of a family member. § 30-3A-3. Where, as here, the violation
of the restraining order is done in a threatening manner, is intended to place the victim in
fear, and is a part of an established pattern of stalking behavior, then aggravated stalking
charges may be proper.
{13} In addition, under Defendant’s interpretation of the aggravated stalking statute, an
individual who engages in a pattern of threatening behavior and then is restrained by a TRO
could only be charged with misdemeanor stalking for the pattern of conduct that occurred
prior to the TRO, a misdemeanor violation of the TRO for the first, second, and possibly
third violations of the TRO, and then, only if the TRO violations occurred with enough
frequency to be considered a pattern, a charge of aggravated stalking could be brought. As
the State points out, this interpretation would create an arbitrary break in an otherwise
continuous pattern of threatening behavior and would frustrate the legislative purpose of
providing greater protection to victims who obtain TROs against their stalkers. Nothing in
Section 30-3A-3.1 supports Defendant’s interpretation.
{14} When the statute is considered as a whole and Defendant’s interpretation is applied
to the other aggravating factors, the incongruity of Defendant’s argument becomes apparent.
The third aggravating factor in the statute is “stalking perpetrated by a person . . . when the
person is in possession of a deadly weapon.” § 30-3A-3.1. We have interpreted this to
require not only that the stalker be in possession of a deadly weapon, but also that the stalker
intended to use the deadly weapon. See State v. Anderson, 2001-NMCA-027, ¶ 32, 130
N.M. 295, 24 P.3d 327. Under Defendant’s interpretation of the statute, an individual could
not be charged with aggravated stalking unless he or she engaged in stalking behavior while
carrying a deadly weapon with the intent to use it against the victim on a sufficient number
of occasions to establish a pattern of conduct. The Legislature could not have intended to
allow a stalker to repeatedly subject a victim to such unreasonable risk. Thus, while a
pattern of conduct is required to establish that stalking has occurred, the crime charged may
be escalated to aggravated stalking as soon as one of the aggravating factors occurs.
{15} The out-of-state authority cited by Defendant does not persuade us to reach a
different conclusion. Vazquez v. State, 953 So. 2d 569 (Fla. Dist. Ct. App. 2007), is
inapplicable to our analysis because the plain language of Florida’s aggravated stalking
statute requires that an offender repeatedly engage in conduct in violation of a court order.
Fla. Stat. Ann. § 784.048(4) (West 2008) (providing harsher punishment for any person who,
“after an injunction for protection . . . repeatedly follows, harasses, or cyberstalks another
person” (emphasis added)). In the California case Defendant cites, People v. McClelland,
49 Cal. Rptr. 2d 587, 590-91 (Ct. App. 1996), the defendant had made numerous threats to
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his victim after being served with a TRO, and the court therefore did not address the issue
before us today. Thus, McClelland provides no guidance in our resolution of this case. See
Fernandez v. Farmers Ins. Co., 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (noting that
cases are not authority for propositions not considered).
{16} It is undisputed that Defendant engaged in a pattern of harassing conduct sufficient
to charge him with stalking and that Defendant made an additional threat to Tamisha after
being served with a TRO that specifically prohibited the conduct in which he had been
engaging. We, therefore, affirm the trial court’s determination that the Act applied to
Defendant’s conduct. Because of our holding, we do not address Defendant’s argument that
under his interpretation of the statute there was insufficient conduct following the issuance
of the restraining order to support his conviction.
3. The Aggravated Stalking Statute is Not Unconstitutionally Vague
{17} Defendant next argues that our interpretation of the aggravated stalking statute
renders the statute unconstitutionally vague. We review a vagueness challenge de novo “in
light of the facts of the case and the conduct which is prohibited by the statute.” State v.
Duran, 1998-NMCA-153, ¶ 31, 126 N.M. 60, 966 P.2d 768. Defendant “[can]not succeed
if the statute clearly applied to his conduct” and, because there is a strong presumption of
constitutionality underlying each legislative enactment, Defendant “has the burden of
proving [the] statute is unconstitutional beyond all reasonable doubt.” State v. Laguna,
1999-NMCA-152, ¶ 24, 128 N.M. 345, 992 P.2d 896 (citation omitted).
{18} There are two ways in which Defendant can meet this burden. He can either
demonstrate that the statute fails to “allow[] individuals of ordinary intelligence a fair
opportunity to determine whether their conduct is prohibited,” or he can demonstrate that the
“statute permits police officers, prosecutors, judges, or juries to engage in arbitrary and
discriminatory enforcement of the statute, which occurs because the statute has no standards
or guidelines and therefore allows, if not encourages, subjective and ad hoc application.”
Id. ¶¶ 25-26. Defendant argues that our interpretation of the statute is unconstitutional under
both prongs of the vagueness test.
{19} Defendant first argues that because the majority of his actions constituting a pattern
of stalking conduct occurred prior to the issuance of the TRO, he was not on notice that his
actions might constitute an offense as serious as a felony. Defendant’s argument is without
merit. A person of ordinary intelligence reading the Act can easily understand that engaging
in a pattern of threatening conduct may result in a charge of misdemeanor stalking under
Section 30-3A-3. Such a person reading Section 30-3A-3.1 would further understand that
continuing such conduct after being ordered by a court to stay away from the victim may
result in a charge of aggravated stalking and increased criminal penalties.
{20} Defendant next argues that the aggravated stalking statute is unconstitutionally vague
because it can be applied in an ad hoc, abitrary manner. That the State had some discretion
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to charge Defendant with the felony crime he committed or a lesser offense such as
misdemeanor stalking or a mere violation of the restraining order does not render the statute
unconstitutionally vague. In order to fall within the arbitrary and discriminatory prong of
the vagueness test, the statute must have “no standards or guidelines and therefore allow[],
if not encourage[], subjective and ad hoc application.” Laguna, 1999-NMCA-152, ¶ 26. In
Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971), for example, the United States
Supreme Court held that a statute was unconstitutionally vague because it criminalized
conduct that “annoyed” police officers or passers-by in Cincinnati. The Court held that not
only did this statute fail to put individuals on notice of what conduct would annoy a police
officer, but it also gave the police arbitrary discretion to charge an individual with a violation
of the statute using a vague and subjective standard. See id.
{21} Unlike the arbitrary discretion given to police officers and prosecutors condemned
in Coates, the aggravated stalking statute has clear guidelines regarding what circumstances
will escalate the misdemeanor crime to a felony offense. The prosecutor’s decision to charge
Defendant with aggravated stalking did not require any arbitrary discretion. Instead, the
prosecutor applied the law as stated in the Act to the conduct of Defendant and determined
that Defendant had engaged in a pattern of threatening behavior directed at Tamisha, had
continued that threatening conduct after being ordered by the court to stop, and had,
therefore, committed aggravated stalking.
B. Alleged Miranda Violations
{22} Defendant next argues that certain statements he made to the police should have been
suppressed because he was not given Miranda warnings before he made the statements. On
the night that Defendant was arrested, Officer Guinn and Officer Jackson went to look for
Defendant at his apartment but were unable to locate him. Because they also needed to issue
a citation to one of Defendant’s roommates for marijuana possession, however, the two
officers remained in the area for about an hour discussing the situation, issuing the citations,
and filling out evidence receipts. The two police vehicles were parked on the street about
fifty yards from Defendant’s apartment. While the officers were parked, Defendant arrived
in a vehicle and stopped. Defendant got out of that vehicle, walked the fifty yards to the
police officers, and yelled out that he understood that they were looking for him. The
officers began to talk with Defendant about the reason they were looking for him, and
Defendant made a number of incriminating statements regarding the TRO violation and the
threats he had made to Tamisha. Defendant made an additional incriminating statement after
his arrest while he was being booked. It is undisputed that Defendant was not read his
Miranda rights at any time during his encounters with the officers.
{23} Miranda warnings are intended to prevent situations where “the circumstances
surrounding the asking of a question by law enforcement are so inherently coercive that any
answer” given by a defendant is deemed to be compelled and not the result of the
defendant’s free will. State v. Javier M., 2001-NMSC-030, ¶ 14, 131 N.M. 1, 33 P.3d 1.
“The standard of review for suppression rulings is whether the law was correctly applied to
8
the facts, viewing them in a manner most favorable to the prevailing party.” State v.
Harbison, 2007-NMSC-016, ¶ 8, 141 N.M. 392, 156 P.3d 30 (internal quotation marks and
citation omitted). While we apply a deferential standard to the trial court’s findings of fact,
see State v. Lopez, 2005-NMSC-018, ¶ 9, 138 N.M. 9, 116 P.3d 80, “[d]etermining whether
or not a police interview constitutes a custodial interrogation requires the application of law
to the facts,” and we, therefore, apply de novo review of the trial court’s ruling. State v.
Nieto, 2000-NMSC-031, ¶ 19, 129 N.M. 688, 12 P.3d 442.
{24} The suppression of an incriminating statement made by a defendant to a police
officer “is only required when the statements are the product of a custodial interrogation.”
State v. Fekete, 120 N.M. 290, 300, 901 P.2d 708, 718 (1995). Thus, two separate
circumstances must exist before Miranda warnings are required—the defendant must be in
custody and there must be an interrogation.
{25} Defendant sought to suppress statements he made on two separate occasions, each
requiring us to analyze different elements of the custodial interrogation requirement. The
first set of statements Defendant sought to suppress was made before he was arrested and
clearly involved interrogation, but the trial court determined that Defendant was not in
custody. The second statement was made after Defendant’s arrest while he was clearly in
custody, but the trial court held that Defendant’s statement was not made in response to an
interrogation. Because of the distinct factual differences between the two sets of statements
Defendant made, we address them separately.
1. Pre-Arrest Statements
{26} There is no dispute that Officers Guinn and Jackson questioned Defendant outside
of his apartment prior to his arrest. Thus, our inquiry focuses solely on whether Defendant
was in custody such that Miranda warnings were required prior to his questioning. Whether
or not an individual is in custody depends on “how a reasonable man in the suspect’s
position would have understood his situation,” Fekete, 120 N.M. at 300, 901 P.2d at 718
(internal quotation marks and citation omitted), and not on the “subjective perception of any
of the members to the interview.” Nieto, 2000-NMSC-031, ¶ 20. An interview is custodial
and, therefore, subject to mandatory Miranda warnings if there is a “formal arrest or
restraint on freedom of movement of the degree associated with a formal arrest.” Id.
(internal quotation marks and citations omitted). However, the questioning of an individual
during an investigatory detention instigated by an officer’s reasonable belief that the
individual has engaged in criminal activity is generally not considered a custodial
interrogation subject to Miranda requirements. Javier M., 2001-NMSC-030, ¶19. But see
State v. Wilson, 2007-NMCA-111, ¶¶ 18, 19, 142 N.M. 737, 169 P.3d 1184 (noting that in
some situations, such as when an officer uses handcuffs, puts the suspect in a police vehicle,
or uses force, an investigatory detention can become the equivalent of custody such that the
Miranda warnings are required). In addition, the fact that an officer has focused his
investigation on the defendant at the time of questioning does not necessitate Miranda
warnings. State v. Swise, 100 N.M. 256, 258, 669 P.2d 732, 734 (1983).
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{27} Determining whether an individual is in custody for purposes of Miranda requires
a fact-specific analysis of the circumstances in which the questioning took place. In State
v. Munoz, for example, our Supreme Court held that a suspect was not in custody where he
was questioned for approximately one hour and forty minutes by FBI agents in the back of
an FBI vehicle parked a mile or so from the suspect’s house. 1998-NMSC-048, ¶¶ 39, 42-
43, 126 N.M. 535, 972 P.2d 847. The individual was a prime suspect in a murder
investigation and the agents had picked him up at his home and transported him to the
location where he was questioned and ultimately confessed to stabbing his victim multiple
times in the neck. Id. ¶¶ 3-6, 11. Despite the length and location of the questioning, the
Court explained that there was no evidence that the suspect’s freedom had been restrained
in any way that could be associated with a formal arrest. Id. ¶ 43. He had voluntarily
accompanied the agents after being told that he did not have to go with them, he was not
handcuffed or searched, the car doors were not locked during the questioning, and the car
was parked along a busy street during daylight. Id. ¶¶ 43-44.
{28} In contrast, this Court held that a suspect was in custody despite not being formally
under arrest where a police officer ordered the suspect out of his vehicle, forcibly placed
handcuffs on him in a manner that caused him to drop to his knees, and then questioned the
suspect in the back of the officer’s vehicle. Wilson, 2007-NMCA-111, ¶ 35. We noted that
a reasonable person in the suspect’s position would have believed “that he was restrained to
the degree associated with a formal arrest.” Id.
{29} In the present case, we cannot conclude that a reasonable person in Defendant’s
position would have believed that he was subject to the degree of restraint associated with
a formal arrest. While Officers Guinn and Jackson were parked on the street in front of
Defendant’s apartment, Defendant pulled up in a vehicle and, without any provocation, got
out of the vehicle and voluntarily walked at least fifty yards to the location of the officers.
He then called out that he heard they were looking for him and approached the officers.
Because of Officer Guinn’s knowledge that Defendant carried Ninja knives, he frisked
Defendant for safety purposes, but Defendant was not restrained in any manner. Defendant
stayed a “safe distance” away from the officers at all times, and the officers questioned him
for approximately twenty minutes.
{30} The circumstances of Defendant’s questioning are similar to but far less “custodial”
than the facts our Supreme Court found did not constitute custody in Munoz. In addition,
unlike the defendant in Wilson, who was forcibly handcuffed and interrogated in the back
of police cruiser, the officers did not use any force on Defendant nor did they handcuff him
during the questioning. Thus, we conclude that a reasonable person in Defendant’s position
would not have believed that he was in custody.
{31} Defendant contends that because he had been warned the night before that he would
be arrested if he violated the TRO, he knew that his arrest was imminent and was therefore
in custody when the officers began to question him about the TRO violation. Thus,
Defendant argues that because he broke the law and because the officers questioned him
10
about that violation, he was in custody for purposes of a Miranda analysis. This argument
is without merit. We do not consider the subjective beliefs of the parties to the interview.
Nieto, 2000-NMSC-031, ¶ 20. Thus, any belief that Defendant may have had regarding
whether he would be arrested does not affect our conclusion that Defendant was not in
custody and that Miranda warnings were not required.
2. Post-Arrest Statement
{32} Following his arrest, Defendant was transported to the police station for booking.
During booking, Defendant became extremely upset and agitated and started cursing about
Tamisha and what she had done to him. Officer Jackson told Defendant, “You need to calm
down, you need to forget about her, you need to let her go.” In response to this statement,
Defendant told Officer Jackson, “You’re right, I should just let her go . . . because if I stick
around, the next time you’ll be fingerprinting me, it’ll be for murder.” Because Defendant
was being booked into jail at the time he made this statement, there is no dispute that he was
in custody. However, because Officer Jackson did not ask Defendant a question, the parties
disagree as to whether Defendant was being interrogated at the time that he made the
statement.
{33} Because the primary purpose of Miranda warnings is to prevent the introduction of
compelled, involuntary incriminating statements, interrogation “must reflect a measure of
compulsion above and beyond that inherent in custody itself,” and a statement given freely
and voluntarily without any compelling influences does not violate Miranda. Rhode Island
v. Innis, 446 U.S. 291, 299-300 (1980). An “[i]nterrogation occurs when an officer subjects
an individual to questioning or circumstances which the officer knows or should know are
reasonably likely to elicit incriminating responses.” Fekete, 120 N.M. at 300, 901 P.2d at
718 (internal quotation marks and citation omitted). Miranda does not apply “in those
situations where [a defendant] volunteers statements” either by making a statement “which
the police did not attempt to elicit” or by making a statement that is “unresponsive to the
questions asked.” Id.
{34} Defendant argues that Officer Jackson knew that Defendant would make an
incriminating statement when he told Defendant to forget about Tamisha because Officer
Jackson had told Defendant the same thing prior to the arrest and Defendant had made
similar incriminating statements. Thus, Defendant argues that “Officer Jackson was aware
that almost any statement to [Defendant] about his relationship with [Tamisha] would elicit
a veritable wave of incriminating information.”
{35} We assume, without deciding, that because Defendant had previously made
incriminating statements when he was told to forget about Tamisha, Officer Jackson should
have known that telling Defendant to calm down would elicit an incriminating response.
Under this assumption, the trial court erred in allowing the testimony regarding Defendant’s
statement that he would be fingerprinted for murder if he did not forget about Tamisha.
However, based on the evidence presented at trial, this error was harmless. “An error is
11
harmless if the [s]tate can establish . . . beyond a reasonable doubt” that there is no
reasonable possibility that the objectionable evidence might have contributed to the
defendant’s conviction. State v. Walters, 2007-NMSC-050, ¶ 25, 142 N.M. 644, 168 P.3d
1068 (internal quotation marks and citations omitted). In determining whether the state has
met this burden, we examine several factors including “the importance of the witness’
testimony in the prosecution’s case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and . . . the overall strength of
the prosecution’s case.” Id. ¶ 26 (internal quotation marks and citation omitted).
{36} Prior to the testimony regarding Defendant’s statement that he would be fingerprinted
for murder, a substantial amount of incriminating evidence had already been presented.
Tamisha and her friends testified that Defendant had threatened Tamisha and her new
boyfriend and that he had engaged in a pattern of threatening conduct directed at Tamisha.
Officer Guinn testified that Defendant had said he would make Tamisha feel his pain and
that he was armed with Ninja-style knives and had trained extensively in Japan as a Ninja.
Officer Jackson testified that Defendant had threatened that he could “take care” of Tamisha
by calling his homies or by taking care of her himself using his Ninja training. In addition,
Defendant himself admitted to all of the essential elements of aggravated stalking. He did
not dispute that he had engaged in a pattern of threatening conduct prior to the issuance of
the TRO, nor did he dispute that he wrote a threatening message on his copy of the TRO and
then placed it in Tamisha’s door. Instead, Defendant merely argued that all of his threats
were empty and that he never intended to follow through with any of them. Thus,
Defendant’s statement that he would be booked for murder was merely a cumulative
statement that repeated his earlier undisputed threats to harm Tamisha. See Fekete, 120
N.M. at 301, 901 P.2d at 719 (noting that even if an officer’s question was an interrogation,
the statements made by the defendant merely repeated what he had stated earlier and their
admission was therefore harmless error).
{37} We, therefore, cannot conclude that Defendant’s statement influenced the jury’s
decision to convict Defendant for aggravated stalking. All of the evidence supporting
Defendant’s conviction was uncontested and had already been established before the
statement was erroneously admitted. Defendant was charged and convicted of aggravated
stalking, not attempted murder, and he never disputed that he made the threats that formed
the basis of his conviction. Thus, we hold that even if the admission of Defendant’s post-
arrest statement was error, the error was harmless.
C. Rule 11-410 NMRA Bars the Admission of Evidence That a Defendant Pleaded
Guilty or Attempted to Plead Guilty but Does Not Require Reversal
{38} At his arraignment, Defendant attempted to plead guilty to the charges against him
and told the magistrate court that everything Tamisha said about him was true. After
Defendant made these statements, the magistrate court informed him that he was being
charged with a felony and that the court did not have jurisdiction to accept a guilty plea in
12
a felony case. At trial, the State called a witness who had been present at Defendant’s
arraignment and who testified regarding the statements Defendant made when he attempted
to plead guilty. Defendant objected to the admission of this evidence on the grounds that it
violated his due process rights, that the plea was involuntary, and that such evidence was just
generally inadmissible.
{39} Defendant now argues that the admission of his attempt to plead guilty violated Rule
11-410, which provides that
[e]vidence of a plea of guilty or an admission in a children’s court
proceeding, later withdrawn, or a plea of no contest, or of an offer to plead
guilty or no contest to the crime charged or any other crime, or of statements
made in connection with any of the foregoing pleas or offers, is not
admissible in any civil or criminal proceeding against the person who made
the plea or offer.
Because Defendant raises Rule 11-410 for the first time on appeal, the State argues that
Defendant failed to adequately preserve the issue. We disagree. Although none of defense
counsel’s objections specifically referenced Rule 11-410, defense counsel alerted the court
on multiple occasions to the general notion that guilty pleas are inadmissible. See State v.
Varela, 1999-NMSC-045, ¶ 25, 128 N.M. 454, 993 P.2d 1280 (explaining that in order for
an issue to be preserved for appeal, the defendant must make a timely objection that
specifically apprises the trial court of the nature of the claimed error and invokes an
intelligent ruling thereon). We, therefore, address the merits of Defendant’s argument. See
State v. Anderson, 116 N.M. 599, 601, 866 P.2d 327, 329 (1993) (noting that Rule 11-410
issue was preserved for appellate review where defense counsel did not specify the rule in
his objection because the trial “court’s comments indicate[d] that it was adequately apprised
of the application of the rule”).
{40} Despite the language of Rule 11-410 barring evidence of a guilty plea, the State
argues that evidence of Defendant’s attempt to plead guilty and the related statements are
admissible under our Supreme Court’s decision in Anderson. There, the Court held that Rule
11-410 applies only if a suspect “relied on the rule in deciding to break silence, because the
rule encourages cooperation only if the defendant relied on it.” Anderson, 116 N.M. at 602-
03, 866 P.2d at 330-31. While Anderson would seem to suggest that the evidence of
Defendant’s attempt to plead guilty was admissible since he did not rely on the rule when
he made his plea, the State’s reliance on this case is misplaced.
{41} Rule 11-410 applies to two separate and distinct types of evidence: (1) evidence of
a plea of guilty that is later withdrawn and statements made in connection with the plea, and
(2) evidence of an offer to plead guilty and statements made in connection with the offer.
Anderson dealt exclusively with the second type of evidence made inadmissible by Rule 11-
410, offers to plead guilty. Anderson did not consider the admissibility of an actual guilty
plea and statements made in connection with that plea. Here we are concerned only with the
13
first type of guilty plea evidence covered by Rule 11-410, the actual entry of a guilty plea.
Thus, Anderson does not apply to our analysis of Defendant’s appeal.
{42} Under Rule 11-410, “[i]f a plea is never entered or entered and then withdrawn, at
trial it is to appear as though the earlier plea . . . never took place. The slate is wiped clean
once plea negotiations fail or the defendant withdraws his plea.” State v. Trujillo, 93 N.M.
724, 727, 605 P.2d 232, 235 (1980). When a plea is entered and then withdrawn, Rule 11-
410 makes any evidence of that plea inadmissible at trial. See Standen v. State, 710 P.2d
718, 720 (Nev. 1985) (noting that a withdrawn guilty plea is “deemed never to have existed
and should not be used as evidence”); Toth v. State, 297 So. 2d 53, 53 (Fla. Dist. Ct. App.
1974) (holding that a rule similar to Rule 11-410 absolutely bars the admission of evidence
that a defendant pleaded guilty and then withdrew the plea). While Defendant did not
formally enter and then withdraw his guilty plea, his attempt to enter a guilty plea and the
magistrate’s rejection of that plea for jurisdictional reasons constituted the functional
equivalent of a formal plea entry and withdrawal for purposes of Rule 11-410. Defendant
believed that he was formally pleading guilty to the charges against him. Had the court had
jurisdiction to accept the plea, Defendant would have had an opportunity to withdraw the
plea, thus making Rule 11-410 applicable. Thus, Rule 11-410 barred the admission of
evidence that Defendant had attempted to plead guilty, and the trial court erred by admitting
the testimony.
{43} However, we conclude that the error was harmless. As the dissent points out,
evidence of a defendant’s attempt to plead guilty is ordinarily inadmissible because, among
other reasons, it may compel a defendant to take the stand to explain to the jury why he or
she initially pleaded guilty and then later withdrew the plea and decided to challenge the
charges at trial. People v. Spitaleri, 173 N.E.2d 35, 37 (N.Y. 1961) (noting that evidence of
a withdrawn guilty plea “in effect forced [the defendant] to take the stand”). Furthermore,
admission of such evidence can be highly prejudicial because “[i]t is also difficult to
conceive a disclosure more apt to influence a jury than the information that the accused had
at one time [pleaded] guilty to the commission of the crime with which he stands charged.”
State v. Boone, 327 A.2d 661, 666 (N.J. 1974) (internal quotation marks and citation
omitted). While we recognize the prejudicial effect that the admission of a defendant’s
attempt to plead guilty can have on a criminal trial, we disagree with the dissent’s contention
that “reversible error is committed regardless of what the remaining evidence in the case
may be” and that a violation of Rule 11-410 is not subject to a harmless error test.
{44} While the dissent correctly notes that the United States Supreme Court did not apply
a harmless error test in Kercheval v. United States, 274 U.S. 220, 225 (1927), when it ruled
that evidence of an attempt to plead guilty is inadmissible, we do not believe that the Court’s
failure to discuss the sufficiency of the remaining evidence to sustain the conviction
indicates that the Court intended to prohibit the use of a harmless error test every time
evidence of a guilty plea is improperly admitted. See Fernandez v. Farmers Ins. Co. of
Arizona, 115 N.M. 622, 627, 857 P.2d 22, 27 (1993) (noting that cases are not authority for
propositions not considered). In fact, contrary to the dissent’s argument that a harmless error
14
test cannot be applied under these circumstances, a number of other jurisdictions that have
considered this issue have applied a harmless error test to the erroneous admission of guilty
pleas. See, e.g, United States v. Acosta-Ballardo, 8 F.3d 1532, 1536 (10th Cir. 1993)
(applying harmless error test to Rule 410 violation and concluding that error was harmless
with respect to the defendant’s conviction for a charge he admitted to in his testimony but
reversible with respect to a charge that required the jury to weigh the credibility of the
witnesses); United States v. Tesack, 538 F.2d 1068, 1070 (4th Cir. 1976) (holding that due
to the strength of the evidence against the defendant, “[i]f there was error in [the admission
of the withdrawn guilty plea], we find it entirely harmless”); Thessen v. State, 454 P.2d 341,
350 (Alaska 1969) (concluding beyond a reasonable doubt that admission of withdrawn
guilty plea did not influence jury), superseded by statute as stated in State v. Chaney, 477
P.2d 441 (Alaska 1970); State v. Thomson, 278 P.2d 142, 148 (Or. 1954) (en banc) (applying
harmless error test to admission of guilty plea evidence and concluding that due to
conflicting evidence, reversal was required); People v. Scheller, 39 Cal. Rptr. 3d 447, 455
(Ct. App. 2006) (holding that erroneous admission of statements made in reliance on guilty
plea was subject to the Chapman v. California, 386 U.S. 18 (1967) harmless error test); State
v. Simonson, 732 P.2d 689, 696 (Idaho Ct. App. 1987) (applying harmless error test to
erroneous admission of evidence that the defendant had pleaded guilty and concluding that
error was not harmless due to circumstantial nature of the prosecution’s case); United States
v. Doamarel, 567 F. Supp. 254, 262-63 (D. Del. 1983) (applying Chapman harmless error
test to wrongful admission of guilty plea evidence and concluding that error was harmless
due to limiting instruction and overwhelming evidence against the defendant); United States
v. Elizondo, 277 F. Supp. 2d 691, 703 (S.D. Tex. 2002) (noting that “[t]he [c]ourt’s error in
admitting [the d]efendant’s guilty plea and conviction will not warrant a new trial if it is
beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained” (internal quotation marks and citation omitted)).
{45} In addition, the United States Supreme Court has explained that error can be analyzed
under a harmless error test when the case involves “error which occurred during the
presentation of the case to the jury, and which may therefore be quantitatively assessed in
the context of other evidence presented in order to determine whether its admission was
harmless beyond a reasonable doubt.” Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991).
Thus, the harmless error test has been applied to the admission of a defendant’s confession
in violation of his constitutional rights, Milton v. Wainwright, 407 U.S. 371, 376 (1972), the
admission of a coerced confession, Fulminante, 499 U.S. at 295, and the admission of an
accomplice’s statements in violation of the confrontation clause. State v. Alvarez-Lopez,
2004-NMSC-030, ¶ 32, 136 N.M. 309, 98 P.3d 699 (applying harmless error test to the
erroneous admission of an accomplice’s confession). The erroneous admission of evidence
of a defendant’s attempted guilty plea, like the erroneous admission of a coerced confession
or a statement admitted in violation of the confrontation clause, is a defect in the presentation
of evidence to the jury and “may therefore be quantitatively assessed in the context of other
evidence presented in order to determine whether its admission was harmless beyond a
reasonable doubt.” Fulminante, 499 U.S. at 307-08. Here, the erroneous admission of
evidence that Defendant attempted to plead guilty is not the type of error that affects the
15
structure of the trial and requires automatic reversal such as deprivation of the right to
counsel, trial before a biased judge, or the race-based exclusion of potential jurors. See
Fulminante, 499 U.S. at 310 (discussing the types of cases that are not subject to harmless
error analysis because they affect the very structure of the trial).
{46} Because the erroneous admission of Defendant’s attempt to plead guilty could touch
upon various constitutional rights, we disagree with the dissent’s conclusion that a violation
of Rule 11-410 is not subject to the harmless error analysis stated in Chapman. That test
requires us to determine “whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction,” and we “must be able to conclude
beyond a reasonable doubt that the jury verdict would have been the same absent the error.”
State v. Johnson, 2004-NMSC-029, ¶ 9, 136 N.M. 348, 98 P.3d 998 (internal quotation
marks, citations and alteration omitted). This requires us to carefully consider “the error’s
possible impact on th[e] evidence” and “[i]f, at the end of that examination, we conclude
there is a reasonable possibility the evidence complained of might have contributed to the
conviction, we must reverse.” Id. ¶ 10. Applying that analysis, we cannot conclude that
there is a reasonable possibility that the admission of the evidence that Defendant attempted
to plead guilty affected the jury’s verdict in this case.
{47} Our Supreme Court in Johnson provided a framework for our analysis. That case
addressed whether a confrontation clause violation amounted to harmless error and adopted
a number of factors to consider. These factors include:
the importance of the witness’ testimony in the prosecution’s case, whether
the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case.
Id. ¶ 11 (internal quotation marks and citation omitted). We believe that these factors are
useful in the context of the present issue involving the erroneous admission of an attempted
guilty plea.
{48} Our Supreme Court’s application of these factors in Johnson provides further
guidance. The Court determined that an erroneously admitted statement constituted
reversible, not harmless, error. Regarding the first factor, the statement “provided the only
direct evidence of guilt with respect to th[e] theory of armed robbery,” and there was,
therefore, “a reasonable possibility that its erroneous admission contributed to the verdict.”
Id. ¶ 32. With respect to a separate charge of accomplice liability, the Court held that
“[w]hile there is much other circumstantial evidence from which reasonable inferences of
[the d]efendant’s guilt might have been derived, [the erroneously admitted] statement
provides the direct evidence of [the d]efendant’s intent to commit armed robbery that
rendered such inferences unnecessary” and the “only direct evidence that [the d]efendant
was armed.” Id. ¶ 36. The Court therefore concluded that the statement was “of central
16
importance to the prosecution’s case.” Id. Applying the second factor, the Court rejected
the State’s argument that the evidence was merely cumulative because “[t]o the extent the
evidence corroborates, and therefore strengthens, the prosecution’s evidence, it cannot be
deemed ‘cumulative’ as we understand that term.” Id. ¶ 37. The Court explained that
cumulative evidence is additional evidence that supports a fact already established by
existing evidence, while corroborative evidence tends to confirm a point suggested by other
evidence but not already proved. Id. ¶ 39. Finally, the Court noted that the defendant’s
testimony contradicted the evidence that had been erroneously admitted and that the jury
would have had to make a credibility determination in favor of the erroneously admitted
evidence in order to disregard the defendant’s testimony and convict him. Id. ¶ 43. Based
on its analysis of these factors, the Court determined that it could not conclude beyond a
reasonable doubt that the evidence did not contribute to the defendant’s conviction. Id.
{49} Similarly, in Elizondo, a case cited by the dissent, the court concluded that its
admission of evidence that a defendant had pleaded guilty was not harmless error because
“[t]he remaining evidence against [the d]efendant, though probably legally sufficient to
sustain a verdict, was not so strong that the [c]ourt can with any confidence say that evidence
of the guilty plea and conviction did not have a substantial impact on the jury’s verdict.”
277 F. Supp. 2d at 704. The court also noted that the other evidence of the defendant’s
knowledge, an essential element of the crime charged, “was limited and circumstantial.” Id.
{50} In this case, in contrast to Johnson and Elizondo, we are able to conclude beyond a
reasonable doubt that the erroneous admission of Defendant’s attempted guilty plea did not
contribute to the jury’s verdict. Unlike the case against the defendant in Johnson, the case
against Defendant here was not comprised solely of circumstantial evidence that the
erroneously admitted evidence served to corroborate. Instead, the State in this case offered
direct evidence that Defendant had committed aggravated stalking, including Tamisha’s
eyewitness testimony that Defendant had threatened her on multiple occasions and the
similar eyewitness testimony of Samantha and Hope regarding Defendant’s multiple threats
toward Tamisha.
{51} In addition, Officer Guinn testified that Defendant stated that he was going to make
Tamisha “feel his pain,” that he was going to put the fear of God in her, and that he had sat
down in front of Tamisha’s residence after receiving the TRO in order to “inflict[] pain” on
her. Finally, Officer Jackson testified that Defendant admitted to him that the night he
received the TRO, Defendant had stopped by Tamisha’s house and “left a note on her door”
and had sat outside Tamisha's house “[t]o instill fear in her.”
{52} Thus, at the time that the State’s witness testified that Defendant had attempted to
plead guilty, the jury had already heard an overwhelming amount of eyewitness testimony
proving that Defendant had engaged in a pattern of threatening behavior directed at Tamisha.
More importantly, the jury had already heard testimony from Officers Jackson and Guinn
that Defendant had admitted that he had done everything that Tamisha had accused him of.
The testimony that Defendant had attempted to plead guilty and had stated that everything
17
Tamisha had said about him was true, therefore, merely repeated Defendant’s admissions
of guilt that were already properly before the jury. Consequently, the guilty plea evidence
was truly cumulative evidence that simply reiterated evidence already before the jury. The
erroneously admitted evidence was not, as the dissent argues, corroborative evidence that
merely strengthened the prosecution’s case. In addition, when Defendant took the stand in
his own defense, he did not offer any testimony that was inconsistent with his guilty plea.
Defendant did not deny that he had engaged in the pattern of threatening conduct that gave
rise to his aggravated stalking conviction; instead, Defendant admitted that he had done
everything Tamisha had accused him of and maintained that he did not really intend to
threaten or actually harm her. As a result, the State’s cross-examination of Defendant was
far from “devastating,” Dissent ¶ 54, because the State simply re-emphasized evidence that
had already been admitted through other witnesses and that had nothing to do with the
attempted guilty plea. Because the erroneously admitted testimony was cumulative and was
not central to the prosecution’s case or contradicted by any other evidence in the record, we
are able to conclude beyond a reasonable doubt that the admission of Defendant’s attempted
guilty plea did not contribute to his conviction. We, therefore, hold that the error caused by
the admission of the testimony that Defendant attempted to plead guilty was harmless.
{53} We further disagree with the dissent’s contention that the admission of Defendant’s
attempted guilty plea may have forced him to take the stand in violation of his constitutional
rights. Defendant never disputed the occurrence of the threatening actions about which the
eyewitnesses had testified. Instead, while cross-examining the State’s witnesses, defense
counsel sought only to show that Defendant did not really intend to harm Tamisha. Because
his defense was based on his intentions when he threatened Tamisha, not whether he had
actually threatened her, we cannot conclude that the admission of the guilty plea forced
Defendant to take the stand in his own defense. The only way that Defendant could establish
that he did not mean that he would actually harm Tamisha when he threatened to harm her
was by testifying that his threats were empty. Without Defendant’s testimony, the case
would have rested on the State’s case, which overwhelmingly proved that Defendant had
engaged in a pattern of threatening behavior sufficient to find him guilty of aggravated
stalking. In light of this, it is unlikely that Defendant would have contemplated a different
defense theory even if the evidence of the attempted guilty plea had not been admitted.
{54} Finally, the dissent argues that the State has failed to meet its burden of showing that
any error caused by the admission of the attempted guilty plea was harmless beyond a
reasonable doubt. While we agree that this is the State’s burden, Chapman, 386 U.S. at 24;
Johnson, 2004-NMSC-029, ¶ 9, we decline to reverse on the technical basis of the State’s
failure to argue harmless error. We have analyzed the State’s violation of Rule 11-410 using
the Chapman constitutional error test even though Defendant did not argue on appeal that
this violation rose to the level of constitutional error. It would be patently unfair to require
the State to address an argument in its answer brief in response to an argument that was not
raised by Defendant. In addition, Chapman ultimately requires only that “the court must be
able to declare a belief that [the error] was harmless beyond a reasonable doubt.” 386 U.S.
at 24. Because we are able to reach this conclusion on our own review of the record, we do
18
not believe that the State’s failure to meet a burden that it was unaware had been imposed
on it requires us to rule in favor of Defendant. See State v. Romero, 2006-NMCA-045, ¶ 69,
139 N.M. 386, 133 P.3d 842 (applying harmless error review where the state did not argue
that error was harmless).
CONCLUSION
{55} For the foregoing reasons, we affirm Defendant’s conviction for aggravated stalking.
{56} IT IS SO ORDERED.
CYNTHIA A. FRY, Chief Judge
I CONCUR:
JAMES J. WECHSLER, Judge
MICHAEL E. VIGIL, Judge (concurring in part, dissenting in part).
Vigil, Judge (concurring in part, dissenting in part).
{57} I concur with the majority opinion except Part C in which it concludes that
improperly admitting evidence before the jury that Defendant attempted to plead guilty did
not constitute reversible error. For the reasons which follow, I respectfully submit that
Defendant is entitled to a new trial in which the improper evidence is excluded from the
jury’s consideration. Since the majority disagrees, I dissent.
FACTS
{58} On January 31, 2006, Officer Guinn arrested Defendant and booked him into the
Otero County Detention Center on a felony charge of aggravated stalking. Officer Guinn
noted that Defendant was to appear in court “when called upon.” Three days later on
February 3, 2006, Defendant was brought before the magistrate court for his first
appearance. Because a felony is not within the jurisdiction of the magistrate court, at a first
appearance the magistrate judge only advises the defendant of the charge, the penalty
provided, his rights, and sets the matter for a preliminary hearing. Rule 6-501(A), (D)
NMRA. “In actions not within magistrate trial jurisdiction, no plea shall be entered.” Rule
6-302(A) NMRA. At Defendant’s first appearance the magistrate judge noted that
Defendant wanted an attorney, wanted to consult with counsel, and wanted a trial by jury.
19
Since Defendant was indigent and incarcerated, it was ordered that a public defender
represent Defendant.
{59} After he obtained counsel, Defendant entered a plea of not guilty, and a jury trial was
held in the district court on the felony charge. The State presented the testimony of Tamisha,
Tamisha’s friend Samantha, Officer Guinn, and Officer Jackson and established the facts set
forth in paragraphs 2-6 of the majority opinion. Except to the extent raised by the Miranda
issue addressed in Part B of the majority opinion, Defendant does not challenge on appeal
the testimony of these witnesses or the facts established by their testimony.
{60} The State’s last witness at trial was Ms. Gilmore, a victim advocate with the district
attorney’s office. She testified that she attended Defendant’s first appearance in the
magistrate court. Defendant and whoever else was in jail were shown a videotape which
explained to the prisoners their rights. When the videotape was played, no attorney was
present to advise Defendant. After the video was played to the group of prisoners, Ms.
Gilmore said that the magistrate judge read the criminal complaint to Defendant, and the
magistrate judge asked Defendant to plead to the charge. Ms. Gilmore testified that
Defendant stated “he wanted to plead guilty.” Defense counsel immediately objected and,
at a bench conference, argued that the testimony was highly improper and related to an
attempt to plead guilty without the presence of counsel. Defendant moved for a mistrial.
Arguing that the evidence was admissible, the prosecutor said, “The proffer is
that . . . Defendant began to talk about I just want to go to Arkansas, everything that the
victim said is true, I just want to plead guilty. We believe that’s an admission of guilt.
It’s—it’s admissible.” After further argument, the district court ruled that the prosecutor
could lay a foundation for admission of the evidence.
{61} Ms. Gilmore then testified that the magistrate court utilizes a video arraignment
procedure. Ms. Gilmore said that the practice is for a videotape to be played explaining to
the prisoners their rights and that if they have a felony charge, this constitutes their first
appearance and if they have a misdemeanor charge, this is their arraignment. After the ten-
minute video is played, the magistrate judge calls each prisoner one at a time and they sit in
a chair and he talks to them through a video monitor. While seated in the chair, the
defendant is able to see the judge on a video monitor, and the judge is likewise able to see
the defendant on a video monitor from his location. There is a third video monitor in the jail
which is pointed at the audience so the public can see and hear the entire process. The
magistrate judge then asks each defendant whether he observed and understood the
videotape. On the basis of this testimony and over Defendant’s objection, the district court
ruled that the State established a foundation to admit Ms. Gilmore’s testimony.
{62} Ms. Gilmore then told the jury that Defendant acknowledged to the magistrate judge
that he understood the rights explained by the videotape and said he wanted to plead guilty.
The magistrate judge advised Defendant he could not accept a guilty plea because he was
charged with a felony, and Ms. Gilmore said that Defendant replied, “[b]ut I’m not denying
anything that she has said. I just want to go back to Arkansas.”
20
{63} Defendant testified in his own defense. He began his testimony by explaining why
he had tried to plead guilty in the magistrate court:
Well, in that particular occasion, with everything I heard from
everybody in New Mexico in jail, if I pleaded guilty, then my trial would go
faster. And that’s basically all I really wanted was for my trial to go faster.
Not knowing anybody in New Mexico and not having any family and friends,
I just wanted to get back home.
Defendant then denied committing the acts Tamisha accused him of. Explaining why he had
said in the magistrate court that he agreed with what Tamisha was saying, Defendant
testified, “[b]ecause as I said earlier, I just didn’t want to fight about this any more. I felt
like my chances of winning this case against a female this county knows [were not good],
so my best bet would be to plead guilty, get this over with, and get back home as soon as
possible.”
{64} Not surprisingly, the prosecutor’s cross examination of Defendant was detailed and
devastating.
Q. Do you recall being arraigned at the video arraignment over
in Magistrate Court? You’re in jail, video machine is set up; is that correct?
A. Yes, sir.
Q. And you remember you had to watch a videotape; is that
correct?
A. Yes, sir.
Q. And the Judge came on the screen and called you up to the
chair and asked you are you Christopher Smile? You know that?
A. Yes, sir.
Q. You remember that?
A. Yes, sir.
Q. Okay. Do you remember the Judge asking you if you watched
the videotape and understood it?
A. Yes, sir.
Q. And you remember saying that yes, you watched it, and you
understood it?
21
A. Yes, sir.
Q. And do you remember the Judge asking you how do you
plead, and you said I plead guilty. Is that correct?
A. Yes, sir.
Q. And do you recall telling the Judge or the Judge telling you
he couldn’t take the guilty plea because it was a felony?
A. Yes.
Q. And do you remember saying at that time everything that
Tamisha said was true?
A. Yes, sir.
Q. I just want to plead guilty and go back to Arkansas. Is that
what you said?
A. Yes, sir.
Q. Now, at the time of that arraignment, you were being
arraigned on aggravated stalking in that courtroom; isn’t that true?
A. Yes, sir.
Q. And you said everything she said about aggravated stalking
was true, correct?
A. I never specified what she said was true, never said everything
she said was true, I didn’t specify what.
Q. Well, you were being arraigned for aggravated stalking; do
you agree with that?
A. That doesn’t mean that I was agreeing to the fact that—I was
agreeing to the fact that she charged me with aggravated stalking.
Q. Well, let’s just try to agree to disagree on some stuff. This
was on date of arraignment, you already said you agreed to—you tried to
plead guilty. Do you agree that you said, “Everything that Tamisha said was
true”?
22
A. Yeah.
Q. Now, when those questions are—you understand that you
were being arraigned for aggravated stalking, is that correct?
A. Yes, sir.
Q. Do you understand and recognize that the Judge read you the
elements of the crime of aggravated stalking?
A. Yeah. (Inaudible) evidence of what it came to be aggravated
stalking, and I’m pretty sure I would be kind of upset about being locked up
for six months over it.
Q. And do you understand—or do you agree that he told you
the—well, I won’t go into that.
But you knew that there would be repercussions for you
saying that; is that fair enough?
A. Yes, sir.
Q. Okay. Now, in your cross—or direct examination with [your
counsel], you said—tried to make an excuse for this. You said—
basically, you said everything she said was true only because you wanted to
magically get out of jail, go take care of your baby girl in Arkansas. Is that
what you said?
A. First of all, it wasn’t an excuse, it was a true statement.
Q. Okay. So when you talked to [the] Judge . . . and you said
everything Tamisha said was true, are you saying that you were lying to a
Judge?
A. No, I wasn’t lying to anybody.
Q. Well, was this a true statement, everything—
A. Yes, it was true.
* * *
23
Q. Mr. Smile, so what you’re saying now is when you said
everything Tamisha said was true, that is a true statement?
A. Yes, it is.
Q. So your statement earlier today with [your counsel on direct]
that that wasn’t true, was that a lie?
A. I never said it wasn’t true. The only thing I ever said
was—what I said and what the truth—because I wanted to go back home to
be with my child. That’s all I’ve been wanting for the last six months was to
see my daughter.
ANALYSIS
{65} I agree with the majority that Rule 11-410 of the Rules of Evidence was clearly
violated. See Majority Opinion ¶¶ 39-41. Rule 5-304(F) NMRA of the Rules of Criminal
Procedure was also violated. This rule is equally clear and unambiguous and in almost the
same language directs:
Evidence of a plea of guilty, later withdrawn . . . or of an offer to
plead guilty [or] no contest . . . to the crime charged or any other crime, or of
statements made in connection with any of the foregoing pleas or offers, is
not admissible in any civil or criminal proceeding against the person who
made the plea or offer.
Id.
{66} The fact that evidence of Defendant’s offer to plead guilty was admitted, as opposed
to evidence of an actual plea, makes no substantive difference, and the majority agrees.
Majority Opinion ¶ 42. Rules 11-410 and 5-304(F) equate offers to plead guilty with actual
guilty pleas. Moreover, the cases which have considered whether such a distinction makes
a difference have concluded it does not. See State v. McGunn, 294 N.W. 208, 209 (Minn.
1940) (concluding that a conditional offer to plead guilty to the court, which the court did
not accept, is to be treated the same as a withdrawn guilty plea); State v. Meyers, 12 S.W.
516, 519 (Mo. 1889) (holding that evidence of an earlier rejected guilty plea was not
admissible); overruled on other grounds, Ex Parte Keet, 287 S.W. 463 (Mo. 1926); Dykes
v. State, 372 S.W.2d 184, 186 (Tenn. 1963) (equating an offer to plead guilty with an actual
plea that is withdrawn); Dean v. State, 161 S.W. 974, 975 (Tex. Crim. App. 1913)
(concluding that an offer of the defendant’s counsel to plead guilty was not admissible).
{67} I first part company with the majority in its conclusion that the error in this case is
subject to a harmless error analysis. Majority Opinion ¶ 43. Because of the nature of
statements made to a judge in a judicial proceeding while pleading guilty or offering to plead
24
guilty, the erroneous admission of such statements into evidence is not subject to a harmless
error analysis.
{68} It is beyond debate that the best evidence of whether a competent accused committed
a violation of the criminal law is his own statement that he committed the act with the
requisite intent. This is exactly what a guilty plea is, and the probative force of such
evidence cannot be overlooked. When a defendant proceeds to trial, it is on the basis of a
“not guilty” plea. Allowing the State to introduce evidence of an attempt to plead guilty
nullifies the entire basis for the trial. The resulting prejudice is so obvious and so
overwhelming that when a defendant’s prior attempt to plead guilty to a judge is improperly
admitted into evidence, reversible error is committed regardless of what the remaining
evidence in the case may be.
{69} The majority asserts that the admission of Defendant’s attempted guilty plea into
evidence did not constitute structural error. Majority Opinion ¶ 45. I disagree. Defendant’s
constitutional right to the presumption of innocence instantly evaporated the moment Ms.
Gilmore told the jury that when Defendant appeared before the magistrate judge, Defendant
said he “wanted to plead guilty,” and that “I’m not denying anything that she [Tamisha] has
said.”
{70} In Coffin v. United States, 156 U.S. 432, 453 (1895), the United States Supreme
Court declared:
The principle that there is a presumption of innocence in favor of the accused
is the undoubted law, axiomatic and elementary, and its enforcement lies at
the foundation of the administration of our criminal law.
Furthermore, the “presumption of innocence, although not articulated in the Constitution,
is a basic component of a fair trial.” Estelle v. Williams, 425 U.S. 501, 503 (1976). What
occurred in this case deprived Defendant of a “basic component of a fair trial.” Id. The very
foundation of how we administer our criminal justice system is weakened when we sanction
subjecting such an error to a harmless error analysis. I therefore conclude that structural error
occurred in this case.
{71} It is the public policy in New Mexico to encourage, not to discourage, plea
agreements. “Guilty pleas are an essential part of our criminal justice system[.]” Trujillo,
93 N.M. at 727, 605 P.2d at 235. In order to facilitate plea discussions, our Supreme Court
has declared
Rule [11-]410 does not set up standards of relevancy and trustworthiness, and
we will not impose any on it. If a plea is never entered or entered and then
withdrawn, at trial it is to appear as though the earlier plea and/or plea
discussions never took place. The slate is wiped clean once plea negotiations
fail or the defendant withdraws his plea.
25
* * *
[A] weighing of conflicting policies demonstrates that the balance is tipped
in favor of interpreting Rule [11-]410 as the cloak of privilege around plea
negotiation discussions.
Trujillo, 93 N.M. at 727, 605 P.2d at 235. The majority acknowledges this is the rule in New
Mexico. Majority Opinion ¶ 42. However, the majority fails to acknowledge that this public
policy places New Mexico squarely in line with the United States Supreme Court and other
state courts that conclude that the admission into evidence of an aborted guilty plea
constitutes reversible error.
{72} Kercheval, 274 U.S. at 223, establishes the federal evidentiary rule that admitting a
withdrawn guilty plea into evidence constitutes reversible error, regardless of why the plea
was withdrawn. The reasoning is particularly applicable here:
The effect of the court’s order permitting the withdrawal was to adjudge that
the plea of guilty be held for naught. Its subsequent use as evidence against
[the defendant] was in direct conflict with that determination. When the plea
was annulled it ceased to be evidence. By permitting it to be given weight
[by the jury] the court reinstated it pro tanto.
Id. at 224. The Supreme Court further observed that a trial is based upon a plea of not guilty
which is substituted for the prior guilty plea. Id. Therefore, allowing the withdrawn plea
to be admitted into evidence for the jury’s consideration places a defendant “in a dilemma
utterly inconsistent with the determination of the court awarding him a trial.” Id. The
Supreme Court did not discuss or analyze whether the evidence was otherwise sufficient to
sustain the conviction. See also State v. Jackson, 325 N.W.2d 819, 822 (Minn. 1982)
(holding that statements made in connection with a withdrawn plea are to be treated as if
they were never made, and reversing the defendant’s conviction where statements he made
in connection with a plea agreement were admitted into evidence to impeach his trial
testimony); People v. Heffron, 399 N.Y.S.2d 501, 504, 506 (N.Y. App. Div. 1977) (noting
that the argument for reversal was compelling because in cross examination of the defendant
concerning a withdrawn guilty plea, the prosecutor asked the defendant whether he lied
when he entered the plea. Although there was no objection to the questioning, the court
reversed because the error was “so fundamental and prejudicial as to require a new trial in
the interest of justice”); State v. Hayes, 172 N.W.2d 324, 325-26 (Minn. 1969) (reversing
the conviction in a bench trial where evidence of a withdrawn guilty plea in a prior
arraignment for the same offense was admitted); D. Welch, Annotation, Propriety and
Prejudicial Effect of Showing, in Criminal Case, Withdrawn Guilty Plea, 86 A.L.R.2d 326,
§§ 4, 8, at 331-35, 338-39 (1962) (collecting cases and noting it is the rule in many
jurisdictions that admission into evidence of a withdrawn guilty plea is reversible error
because it is not admissible for any purpose at a trial upon a plea of not guilty and that such
error is not cured even by an instruction to jurors to disregard their knowledge of that fact).
26
{73} My second disagreement with the majority is how it applies the concept of harmless
error to the admitted violation. The majority states that it “cannot conclude that there is a
reasonable possibility that the admission of the evidence that Defendant attempted to plead
guilty affected the jury’s verdict in this case.” Majority Opinion ¶ 46. Furthermore, the
majority disagrees that the admission of Defendant’s attempted guilty plea “may have forced
him to take the stand in violation of his constitutional rights.” Majority Opinion ¶ 53. These
conclusions appear to be grounded upon a conclusion that the attempted plea was nothing
more than cumulative evidence. Majority Opinion ¶¶ 50-52.
{74} The admission into evidence of Defendant’s attempt to plead guilty and statements
he made in connection with that attempt violated, touched upon, and implicated various
constitutional rights of Defendant. Two constitutional rights of Defendant were squarely
violated. Trujillo mandates that where a plea fails, “at trial it is to appear as though the
earlier plea and/or plea discussions never took place.” 93 N.M. at 727, 605 P.2d at 235.
Stated another way, at trial Defendant was entitled to every constitutional safeguard and
presumption associated with a plea of “not guilty.” Because of the nature of a guilty plea,
which I have already discussed, improperly admitting into evidence Defendant’s attempt to
plead guilty destroyed Defendant’s constitutional presumption of innocence. In addition,
the State’s improper use of Defendant’s statements made in connection with his offer to
plead guilty resulted in him testifying against himself “in substance if not in form.” See
Wood v. United States, 128 F.2d 265, 274 (D.C. Cir. 1942) (using this language). Once
Defendant’s statements in connection with the attempted plea were improperly admitted, his
constitutional right to remain silent was destroyed. He had to testify about the plea if he was
to have any hope of overcoming its effect on the jury. See Spitaleri, 173 N.E. 2d at 37
(stating that after the defendant’s withdrawn guilty pleas was improperly admitted into
evidence, he was “in effect forced to take the stand” to explain that although he was
innocent, he pleaded guilty because his lawyer promised him a suspended sentence).
Finally, State v. Reardon, 73 N.W.2d 192, 195 (Minn. 1955), squarely holds that the
admission into evidence of a withdrawn guilty plea violates the due process protected by
both the United States Constitution and the Minnesota Constitution.
{75} There are additional constitutional rights which are touched upon or implicated in
this case. The record establishes that a videotape was shown to a group of prisoners in jail,
which included Defendant, that explained to the prisoners their “rights.” However, the
videotape is not before us, so we do not know its contents. We do know, however, that
Defendant had no attorney when the videotape was played and he offered to plead guilty.
Whether Defendant was afforded his constitutional right to counsel and whether there was
a valid waiver of this constitutional right are both implicated. See State v. Melendez, 397
A.2d 1117, 1118, 1120 (N.J. Super. Ct. App. Div. 1979) (per curiam) (concluding that the
defendant’s constitutional right to counsel was violated when he pleaded guilty at his first
appearance because it was made without counsel or a valid waiver of counsel, and directing
that “[n]o admissions made by defendant during the original arraignment shall be admissible
in evidence against him in the event he is retried”). Secondly, we have no basis for
concluding whether Defendant validly waived his constitutional right against self-
27
incrimination when he offered to plead guilty. This constitutional right is also implicated.
See United States ex rel. Spears v. Rundle, 268 F. Supp. 691, 699 (E.D. Pa. 1967), aff’d, 405
F.2d 1037 (3d Cir. 1969) (concluding that a guilty plea cannot operate as a waiver of the
constitutional right against self-incrimination if there was no valid waiver of that privilege
in making the plea itself).
{76} Under Chapman, in order to hold that constitutional error does not require reversal,
we must be able to conclude that the error was “harmless beyond a reasonable doubt.” 386
U.S. at 24; Johnson, 2004-NMSC-029, ¶ 8; State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 25.
The burden lies with the State to demonstrate that the error is harmless beyond a reasonable
doubt. Johnson, 2004-NMSC-029, ¶ 9; Alvarez-Lopez, 2004-NMSC-030, ¶ 25. However,
the State makes no argument of harmless error. Specifically, the State’s brief fails to make
any assertion or argument attempting to demonstrate that there is no reasonable possibility
that admitting Defendant’s statements and attempt to plead guilty into evidence contributed
to his conviction. See Johnson, 2004-NMSC-029, ¶ 11 (stating the central focus in
determining whether constitutional error was harmless is “whether there is a reasonable
possibility the erroneous evidence might have affected the jury’s verdict”).
{77} In my independent examination of the record, I cannot conclude beyond a reasonable
doubt that the error in admitting this evidence was harmless. In Alvarez-Lopez, our Supreme
Court noted Fulminante in which the United States Supreme Court “was faced with
determining whether a criminal defendant’s involuntary confession, which was
unconstitutionally admitted into evidence against him at his trial, contributed to his
conviction.” Alvarez-Lopez, 2004-NMSC-030, ¶ 34. Our Supreme Court agreed that
[C]onfessions have profound impact on the jury, so much so that we may
justifiably doubt its ability to put them out of mind even if told to do
so. . . . [A] full confession in which the defendant discloses the motive for
and means of the crime may tempt the jury to rely upon that evidence alone
in reaching its decision. . . . [T]he risk that the confession is unreliable,
coupled with the profound impact that the confession has upon the jury,
requires a reviewing court to exercise extreme caution before determining
that the admission of the confession at trial was harmless.
Id. ¶ 34 (quoting Fulminante, 499 U.S. at 296). See also United States v. Leon-Delfis, 203
F.3d 103, 112 (1st Cir. 2000) (“Confessions are by nature highly probative and likely to be
at the center of the jury’s attention.”). This reasoning has even greater force where a guilty
plea is concerned. As I have already noted, a judicial guilty plea has its own unique
probative weight which is virtually impossible to overlook. In the words of the United States
Supreme Court, “A plea of guilty differs in purpose and effect from a mere admission or an
extrajudicial confession; it is itself a conviction.” Kercheval, 274 U.S. at 223 (emphasis
added).
28
{78} In Elizondo, the defendant was convicted of conspiracy to possess with intent to
distribute, and conspiracy to distribute, cocaine in federal court. 277 F. Supp. 2d at 692.
The federal judge admitted into evidence the defendant’s guilty plea in state court, together
with the state judgment of conviction, that he possessed the same drugs. Id. at 697. The
defendant was granted a new trial after the judge concluded that he improperly admitted this
evidence. Id. at 703-04. Applying Chapman, the judge found “there is a significant
possibility that admission of [the d]efendant’s state court guilty plea and conviction had a
substantial impact on [the d]efendant’s conviction on the federal conspiracy charge.” The
judge first recognized that “admission of the guilty plea likely had an even greater impact
on the verdict than admission of the conviction itself.” Id. at 703. The judge then went
further and candidly acknowledged the effect it had upon the court itself when he denied the
defendant’s motion for a directed verdict. Id. at 703-04. When he denied the defendant’s
motion, the judge had said, “Well, I don’t know of a better form of demonstration of
knowledge [of the drugs] than somebody pleading guilty to it.” Id. at 704.
{79} Under the circumstances of this case, it is not possible to conclude that the error was
harmless beyond a reasonable doubt. See Johnson, 2004-NMSC-029, ¶ 10 (directing that
if we conclude, “there is a reasonable possibility the evidence complained of might have
contributed to the conviction” after examining the admissible evidence and the possible
impact of the error on that evidence, “we must reverse”).
{80} Johnson and Alvarez-Lopez both teach that constitutional error cannot be deemed
harmless simply because there is overwhelming evidence of a defendant’s guilt. Johnson,
2004-NMSC-029, ¶ 11; Alvarez-Lopez, 2004-NMSC-030, ¶ 32. Among the reasons given
are the recognition that appellate courts are “poorly equipped” to determine guilt or
innocence. Id. ¶ 29. Furthermore, defendants have a constitutional right to have a jury
decide guilt or innocence, not appellate judges reviewing the evidence on appeal, id. ¶ 27,
and we cannot take the risk that the appellate court—the wrong entity—is adjudging the
defendant’s guilt. Id. ¶ 28. Consistent with the jury trial guarantee, the inquiry “is not
whether, in a trial that occurred without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” Id. ¶ 27 (internal quotation marks and citation omitted). Perhaps
most compelling, “we risk inadvertently concluding that constitutional error was harmless
simply because there was substantial evidence to support the conviction.” Id. ¶ 30.
Accordingly, when constitutional error has infected a trial, a jury verdict is not automatically
afforded deference. Id. “Rather, in a proper harmless error analysis, the appellate court
defers to the jury verdict only when the State has established beyond a reasonable doubt that
the jury verdict was not tainted by the constitutional error.” Id.
{81} As a policy matter, we must be cognizant that our criminal justice system, and our
federal and state constitutions, “protect other values besides the reliability of the guilt or
innocence determination.” Id. ¶ 31 (internal quotation marks and citation omitted). A
harmless error analysis which focuses solely on whether overwhelming evidence supports
a guilty verdict does not adequately protect those values. Id. In this regard, I agree with the
29
following statement from Reardon, 73 N.W.2d at 195, which answered the state’s argument
that whether there was prejudice requiring a new trial when a withdrawn guilty plea was
admitted into evidence was determined by whether or not the error affected the result.
The state contends that whether or not there was prejudice requiring a new
trial is determined by whether or not the error affected the result. There is
authority for this proposition—but where the constitutional right to a fair trial
is denied, we are unwilling to adopt a theory which in effect assumes that,
where proof is strong, due process may be suspended. . . . It is true there is
cogent evidence to support the verdict; and it may be expected that on a
second trial the result would be the same. But to allow factually strong cases
to erode such a basic right is to deny the existence of the right.
Id. (citations and footnotes omitted).
{82} Notwithstanding the weight of the remaining evidence against Defendant, the State
has failed to demonstrate that the verdict was not tainted by the error. The majority’s
attempt to demonstrate harmless error fails. Again, evidence of Defendant’s attempt to plead
guilty has a unique evidentiary weight, and simply reciting what other evidence the State
presented does not demonstrate harmless error.
{83} Finally, I disagree with the majority conclusion that Defendant’s attempt to plead
guilty was “truly” cumulative. Majority Opinion ¶ 52. Johnson states, “To the extent the
evidence corroborates, and therefore strengthens, the prosecution’s evidence, it cannot be
deemed ‘cumulative’ as we understand that term. 2004-NMSC-029, ¶ 37. Again, given the
nature and effect of a guilty plea, the improper evidence in this case not only corroborated
and strengthened the State’s case, it did so beyond any reasonable doubt. Even if the
evidence viewed as merely cumulative, “improperly admitted evidence that is cumulative
is not ipso facto harmless beyond a reasonable doubt: the reviewing court must further
inquire into the effect that evidence might have had on the jury’s verdict.” Id. In this case,
it cannot be assumed that the improper evidence had no effect on the verdict in this case.
CONCLUSION
{84} For all the foregoing reasons, I would reverse Defendant’s conviction and remand
the case for a new trial.
______________________________________
MICHAEL E. VIGIL, Judge
Topic Index for State v. Smile, No. 27,338
AE APPEAL AND ERROR
AE-HE Harmless Error
30
CA CRIMINAL PROCEDURE
CA-GP Guilty Plea
CL CRIMINAL LAW
CL-ST Stalking
CT CONSTITUTIONAL LAW
CT-MW Miranda Warnings
CT-PI Presumption of Innocence
CT-SU Suppression of Evidence
CT-VO Vague or Overbroad
RE REMEDIES
RE-PO Protective Order
ST STATUTES
ST-IP Interpretation
31