(concurring in part and dissenting in part).
{32} I concur with the majority that to allow the prosecutor’s repeated reference to Defendant’s notice of alibi and the name of the purported alibi witness was error. Unfortunately, this is a case where the only answer to the question of what the proper result would have been is to allow the trial to end without putting improper evidence before the jury. Since I cannot fairly state that the pinning of the notice of alibi and its witness to the defense well in advance of the defense’s case did not appreciably affect the verdict, I will not agree that the error upon which we agree was harmless. See State v. Lopez, 2007-NMCA-049, ¶ 15, 142 N.M. 613, 168 P.3d 743 (holding that harmless error occurs when there is “no reasonable possibility that the evidence complained of might have contributed to the [defendant’s] convictions” (alteration in original) (internal quotation marks and citation omitted)).
{33} I take a different view of the facts than do the majority. Specifically, the prosecutor, not the defense, was the big pusher of Mr. Brazeal’s name. Second, the defense case was cumulative of the State’s adducing evidence of the notice of alibi and its contents, not the other way around. This case highlights the constitutional problems that may arise in the application of Rule 5-508 NMRA and is a case of first impression in interpreting Section (E) of the Rule.
{34} The State brought Mr. Brazeal’s name before the jury in the opening moments of voir dire, asking if he had been found; the defense responded that it expected to call him as a witness. The prosecutor mentioned Mr. Brazeal two more times in voir dire, to each row of prospective jurors. In his opening statement, the prosecutor was quite frank about Mr. Brazeal’s value: “Ladies and gentlemen, the State has been put on notice that the defense in this case will be an alibi ... [a]nd a John Brazeal ha[s] been listed____We’ll see if [he shows] up.” This elicited no objection from the defense. Later in his opening statement, the prosecutor disclosed that he expected one of the co-defendants to testify that he and Defendant were at Mr. Brazeal’s house when Defendant attempted to get Mr. Brazeal’s help in casting suspicion away from Defendant and his two accomplices. Defendant’s opening statement characterized the co-defendants as a liar and a person with a faulty memory, but never mentioned Mr. Brazeal, or an alibi. In fact, Mr. Brazeal was never produced as a witness at trial.
{35} At trial, the prosecutor questioned Defendant’s accomplice, Derrick Faulkner, about Mr. Brazeal, referencing a conversation in which Defendant had asked Mr. Bra-zeal to help make up a story for the police on his behalf. The direct examination of the other accomplice, Mr. Fraser, developed evidence that Defendant had asked Mr. Fraser to lie to the police for him. Later, the prosecutor, using the notice of alibi, and after the defendant’s objection to the use of the notice was overruled, asked:
Mr. Fraser, in a document filed with this [c]ourt, the Defendant ... has stated that he was present at Mr. Hernandez’s ... house when you and Mr. Faulkner arrived with the deer in his pickup. Is that true?
It also states that he was not with you when you and Mr. Faulkner unlawfully shot and killed these deer. Instead, he was at [Mr. Hernandez’s] house watching movies with John Brazeal.
{36} In the course of Defendant moving for a mistrial, the prosecutor explained his position: “[W]e’re allowed to get into things that the [d]efense is going to put on as a defense. [Defense counsel] called this witness in the voir dire section of this trial, and he’s not going to produce him.” The State offered to get Mr. Brazeal and bring him in to testify, stating that they had talked to Mr. Brazeal and that he would not be a good witness for the defense.
{37} Defendant responded that the prosecution had
brought up issues that are supposed to be reserved for our case. We can choose to use those issues or not. [The State] can’t. What he’s done is he’s forcing us to either be silent so he can argue to the jury that we never produced this witness ... or we have to call this witness we may have decided is not a good witness to call.
The court gave a curative instruction to the jury that the prosecutor’s mention of the alibi should be disregarded.
{38} Mr. Hernandez was the next witness to testify. At the point where the prosecutor began to question him about Mr. Brazeal, the defense again objected. The court allowed the question; Mr. Hernandez testified that Mr. Brazeal had not been at his house at the time of the crime. Again, the prosecutor relied on the voir dire disclosure of Mr. Brazeal, incorrectly stating, “[w]hen I called my witnesses before this jury panel, I never identified John Brazeal.”
{39} Again in argument to the court, the defense pointed out that the State should not be able to chip at an alibi defense that has not been presented. The defense also pointed out that while it is good practice to identify potential witnesses to avoid problems in voir dire, the defense had not mentioned any alibi in their opening statement, nor had his opening stated that Defendant was not there. The defense stated that it did not intend to call Mr. Brazeal as a witness.
{40} When Defendant took the stand, he did not testify on direct examination that he had been with Mr. Brazeal or anyone else. His defense was simply that he was not present with the others. It was the prosecutor who on cross-examination demanded of Defendant who was with him when he was at Mr. Hernandez’s house, which brought another objection from the defense, and a judicial admonition to leave Mr. Brazeal’s name out of the examination when Defendant revealed it.
The Error Was Not Harmless
{41} Here, the notice of alibi was flogged before the jury long before Defendant testified. It should be a
rare situation where it would be appropriate for a prosecutor to comment on anticipated defense evidence because a defendant is under no obligation to put forward evidence on his or her own behalf.... [W]hen the prosecution raises the spectre of a flawed alibi and the defendant chooses not to offer any alibi evidence, it may well leave the jury with an unfavorable impression of the defendant.
United States v. Hall, 165 F.3d 1095, 1115 (7th Cir.1999).
{42} A notice of alibi is a testimonial disclosure by the defense. See Williams, 399 U.S. at 83, 86 n. 17, 90 S.Ct. 1893. In this case, as the majority points out, the prosecutor argued precisely that — the notice of alibi was an admission by the Defendant. Majority Opinion ¶ 1173. For the prosecution to comment that a defendant has filed such a notice before the defendant testifies is a comment on that defendant’s right to remain silent, raising Fifth Amendment concerns. People v. Hunter, 95 Mich.App. 734, 291 N.W.2d 186, 188 (1980). The rule requiring the filing of a notice of alibi upon the prosecutor’s demand does not exist “to alert the jury of the defendant’s proposed defense.” People v. Shannon, 88 Mich.App. 138, 276 N.W.2d 546, 549 (1979).2 In fact, the United States Supreme Court has stated that “[n]otice-of-alibi rules ... are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial.” Wardius v. Oregon, 412 U.S. 470, 473, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). However, if a defense witness testifies to facts different than those contained in the notice of alibi, he or she may be cross-examined on the variance, same with the defendant, should he or she testify. People v. Lowe, 969 P.2d 746, 749 (Colo.Ct.App.1998).
{43} Here, well before the defense began its case presentation, the prosecutor was improperly boxing in the defense by repeatedly stating Defendant had filed a pleading asserting an alibi of which Mr. Brazeal was a part. Permitting the prosecution to exploit a notice of alibi could tie a defendant “ineluctably to a strategy that, owing to circumstances, might no longer be valid.” People v. Rodriguez, 3 N.Y.3d 462, 787 N.Y.S.2d 697, 821 N.E.2d 122, 125 (2004). The fact that on direct examination, the State’s witnesses testified that Mr. Brazeal was not present is one thing, and would be permissible absent the specific references by the State as to the notice of alibi. During direct examination in the State’s case, the prosecutor used the notice of alibi in front of the jury specifically as if it was an admission from Defendant, which constitutes the error and the prejudice to Defendant. The law is clear that had Defendant not testified or offered any alibi defense at all, the State would not have been able to present any evidence of the notice of alibi. See Williams, 399 U.S. at 84, 90 S.Ct. 1893 (“Nothing ... requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.”); see, e.g., Rodriguez, 787 N.Y.S.2d 697, 821 N.E.2d at 125. There is no reason to countenance such conduct prior to the defense case being presented.
{44} The prosecutor asked one of his witnesses about Mr. Brazeal, and stated before the jury in the course of examining two State’s witnesses that Defendant had filed a document with the court stating that he was with Mr. Brazeal rather than at the scene of the crime, and examined Mr. Hernandez and Defendant about Mr. Brazeal’s presence at Mr. Hernandez’s house on the day of the crime. This use of the notice and the assertions in it was intentional and pervasive, and the district court continued to allow it. The district court did issue two admonitions, the last of which specifically stated that the jury was to specifically disregard the notice that was filed by Defendant stating that he was not with Mr. Faulkner and Mr. Frasier, and was present at Mr. Hernandez’s house when they got there.
{45} The prejudice to Defendant lies in the State’s setting up a straw man by its intentional use of the notice of alibi, and by placing Defendant in a position of having to present his version of the defense he eschewed. This is precisely the evil against the Fifth Amendment that Rule 5-508(E) is intended to forestall. Without reference to Mr. Brazeal, the State only had its parade of co-defendants and witnesses to establish that Defendant was there — it was not their place to establish the negative of his alibi in advance of the presentation of his case.
{46} Because I believe the error was not harmless, I also believe the district court should have granted the mistrial. Once the prosecution tells the jury that the defendant has filed a declaration of his defense, the defense has lost its ability even to abandon any defense and stand on the evidence properly before the court. I would reverse and remand for a new trial where the State’s case consisted of evidence that was properly theirs.
. In the present case, no demand for alibi nor any notice of alibi appear in the record proper.