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Date: 04-24-2021
Case Style:
State of New Mexico v. Christopher Heh
Case Number: A-1-CA-37243
Judge: Shammara Henderson
Court: IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Plaintiff's Attorney: Hector H. Balderas, Attorney General
Jane A. Bernstein, Assistant Attorney General
Defendant's Attorney:
Description:
Albuquerque, NM - Criminal defense attorney represented CHRISTOPHER HEH with possession of a stolen motor vehicle and possession of burglary tools charges
The opinion filed January 6, 2021, is hereby withdrawn, and this opinion is
21 substituted in its place. A jury convicted Defendant Christopher Heh of possession
22 of a stolen motor vehicle and possession of burglary tools. On appeal, Defendant
Court of Appeals of New Mexico
Filed 1/6/2021 4:47 PM2
1 advances several arguments: (1) the State improperly solicited testimony regarding
2 his post-arrest silence; (2) there was insufficient foundation for the admission of
3 surveillance video evidence; (3) his conviction for possession of burglary tools is
4 not supported by sufficient evidence; (4) failure to instruct the jury on the definition
5 of burglary constituted fundamental error; and (5) the district court engaged in
6 improper commentary during voir dire. We hold that Defendant’s Fifth Amendment
7 right against self-incrimination was violated by the State’s improper solicitation of
8 testimony regarding his post-arrest silence, and that Defendant’s conviction for
9 possession of burglary tools is not supported by sufficient evidence. We therefore
10 reverse and remand. Because we reverse on these grounds, we need not reach
11 Defendant’s remaining arguments. However, we exercise our discretion to address
12 Defendant’s argument regarding the improper admission of the surveillance video
13 as it is likely to become an issue on remand.
14 BACKGROUND
15 {2} Albuquerque Police Department (APD) Officer Tavish Barnhill was
16 dispatched to the scene of a single-vehicle car accident. When he arrived, he
17 discovered a truck caught in the median dividing the roadway. Officer Barnhill
18 learned that the truck had been reported stolen and that a witness identified
19 Defendant as the possible driver of the truck. He detained Defendant on the scene. 3
1 {3} No individual at the scene witnessed Defendant operating the truck before it
2 became caught in the median. However, Officer Barnhill obtained surveillance
3 footage taken from a nearby gas station that appeared to show Defendant exiting the
4 truck at the gas station and the truck rolling away towards the roadway shortly
5 thereafter. A screwdriver was found in a cup holder in the truck. Defendant was
6 transported to an APD substation for questioning by Detective David Taylor.
{4} A grand jury indicted Defendant for, among other charges,
1 7 one count of
8 possession of a stolen motor vehicle, contrary to NMSA 1978, Section 30-16D-4(A)
9 (2009), and one count of possession of burglary tools, contrary to NMSA 1978,
10 Section 30-16-5 (1963). At trial, both Officer Barnhill and Detective Taylor were
11 called as witnesses by the State. The State introduced the surveillance video from
12 the gas station through Officer Barnhill. Over Defendant’s objections, the district
13 court admitted the video into evidence, finding that Officer Barnhill could
14 sufficiently authenticate the video, although he did not personally observe the events
15 the video portrayed and was unfamiliar with the gas station’s surveillance video
system.
2 16
1
The other charges were dismissed prior to trial.
2
This district court ruling was consistent with its earlier ruling on the same
issue in this case, which was raised pretrial by motion in limine and heard at a motion
hearing. 4
1 {5} Detective Taylor was the final witness to testify. The State asked Detective
2 Taylor a series of questions about what he did at the substation after transporting
3 Defendant there. After asking Detective Taylor if Defendant was present at the
4 substation and to identify Defendant, the prosecutor again asked him what occurred
5 at the substation to which he replied, “I attempted to interview [Defendant].”
6 Defense counsel asked to approach the bench, and the following discussion ensued:
7 Defense Counsel: Your Honor I’m going to object on the basis of an
8 improper commentary on [Defendant]’s right to
9 remain silent. He refused to give a statement, he was
10 in custody, he’s under arrest. I think if they’re going
11 to ask him that he chose not to. . . .
12 Court: Are you going to ask him about any statements?
13 Prosecutor: I’m going to ask [Detective Taylor] if he asked if
14 [Defendant] would give a statement and
15 [Defendant] said “No. Anything I say will
16 incriminate me further.” So [Detective Taylor]
17 stopped.
18 Court: Ok . . . that won’t come in. But I’m going to allow
19 a little bit of leading in this way: “were you able to
20 get a statement from [Defendant]” is the extent of it.
21 {6} Defense counsel repeated his objection and expressed concern that any
22 testimony bearing on Defendant’s right not to give a statement would allow the jury
23 to infer a consciousness of guilt. The district court acknowledged the prejudicial
24 nature of the testimony sought, but reasoned it was a “balancing act” and did not
25 want the jury to believe that Detective Taylor did not ask Defendant to speak with 5
1 him. In an attempt to mitigate the prejudice, the district court suggested defense
2 counsel inquire on cross examination whether Defendant was read his rights
3 pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The court then asked the
4 parties to clarify the State’s last question to Detective Taylor. Defense counsel,
5 apparently confusing the State’s last question to Detective Taylor with the question
6 the district court said it would allow the State to ask, responded, “Were you able to
7 get a statement? [Detective Taylor] said ‘No.’ ” This misstatement went uncorrected
8 by the State.
9 {7} Contrary to the district court’s instructions, the State did not limit its
10 questioning of Detective Taylor and instead adopted the questions the court
11 suggested defense counsel use on cross examination:
12 Prosecutor: Ok, so Detective Taylor, you just stated that . . . you
13 were not able to get a statement from . . .
14 [Defendant]?
15 Detective Taylor: No.
Prosecutor: Ok. And did you read him his Miranda rights?3 16
3
At this point, Defendant had already been detained by Officer Barnhill at the
scene of the accident and was transported to an APD substation. Officer Barnhill
was not asked whether he gave Defendant his Miranda warnings, but he testified
that while they did speak, he did not recall Defendant’s statements. Though unclear
from the record, for purposes of our analysis, we assume that Defendant had been
given his Miranda warnings. See State v. DeGraff, 2006-NMSC-011, ¶ 13, 139 N.M.
211, 131 P.3d 61 (explaining that appellate courts may assume Miranda warnings
were given when the record is silent as to that issue).6
1 Detective Taylor: I did not.
2 Prosecutor: Why not?
3 Detective Taylor: He did not wish to speak with me, so I didn’t go any
4 further.
5 The jury convicted Defendant of both charges, and this appeal followed.
6 DISCUSSION
7 I. Defendant’s Fifth Amendment Right Against Self-Incrimination Was
8 Violated
9 {8} Defendant argues that his Fifth Amendment right against self-incrimination
10 was violated based on the State’s questioning of Detective Taylor that elicited
11 testimony that he was unable to obtain a statement from Defendant. The State argues
12 that Defendant “invited” this testimony and that any resulting error was harmless.
13 For the reasons that follow, we agree with Defendant.
14 {9} “No person . . . shall . . . be compelled in any criminal case to be a witness
15 against himself[.]” U.S. Const. amend. V. The Fifth Amendment prohibits comments
16 from the prosecution before the jury on the silence of the accused. See State v. Isiah,
17 1989-NMSC-063, ¶ 10, 109 N.M 21, 781 P.2d 293, overruled on other grounds by
18 State v. Lucero, 1993-NMSC-064, ¶ 13, 116 N.M. 450, 863 P.2d 1071. “Evidence
19 of a defendant’s post[-]arrest silence is generally inadmissible because the probative
20 value is substantially outweighed by the potential for unfair prejudice.” State v.
21 Garcia, 1994-NMCA-147, ¶ 7, 118 N.M. 773, 887 P.2d 767. 7
1 {10} “[W]e review de novo the legal question whether the prosecutor improperly
2 commented on [the d]efendant’s silence.” State v. Foster, 1998-NMCA-163, ¶ 8,
3 126 N.M. 177, 967 P.2d 852. “[I]n cases in which a defendant has properly objected
4 at trial, we review prosecutorial comment on silence to determine whether the error
5 is harmless beyond a reasonable doubt.” State v. Gutierrez, 2007-NMSC-033, ¶ 18,
6 142 N.M. 1, 162 P.3d 156. It is the State’s burden to establish “that the constitutional
7 error was harmless beyond a reasonable a doubt.” Id. (internal quotation marks and
8 citation omitted). Constitutional error can never be “harmless if there is a reasonable
9 possibility that the evidence complained of might have contributed to the
10 conviction.” Id. (internal quotation marks and citation omitted).
11 {11} “Our focus must remain squarely on assessing the likely impact of the error
12 on the jury’s verdict.” State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 32, 136 N.M. 309,
13 98 P.3d 699. “We take care not to focus our harmless error analysis exclusively on
14 whether the trial record consisted of overwhelming evidence of the defendant’s guilt,
15 so as not to risk inadvertently concluding the constitutional error was harmless
16 simply because there was substantial evidence to support the conviction.” Gutierrez,
17 2007-NMSC-033, ¶ 18 (internal quotation marks and citation omitted).
18 Consequently, “in a proper harmless error analysis, the appellate court defers to the
19 jury verdict only when the [s]tate has established beyond a reasonable doubt that the
20 jury verdict was not tainted by the constitutional error.” Alvarez-Lopez, 2004-8
1 NMSC-030, ¶ 30. Finally, we “consider whether the language used was manifestly
2 intended to be or was of such a character that the jury would naturally and necessarily
3 take it to be a comment on the accused’s exercise of his or her right to remain silent.”
4 DeGraff, 2006-NMSC-011, ¶ 8 (internal quotation marks and citation omitted).
5 {12} We first examine the context in which the testimony concerning Defendant’s
6 silence was made. The State argues that because Detective Taylor was the eighth
7 and final witness to appear after two days of evidence being presented, this testimony
8 was harmless error given the amount of other evidence presented. We disagree.
9 “[E]ven if [the] conviction appears inevitable, there is a point at which an error
10 becomes too great to condone as a matter of constitutional integrity and prosecutorial
11 deterrence. While the strength of the properly admitted evidence is a factor in
12 evaluating the likely impact on the jury of the constitutional error, constitutional
13 error cannot be deemed harmless simply because there is overwhelming evidence of
14 defendant’s guilt. Rather, we focus squarely on assessing the likely impact of the
15 error on the jury’s verdict.” Gutierrez, 2007-NMSC-033, ¶ 18 (alteration, internal
16 quotation marks, and citations omitted). The State attempts to diminish the
17 importance of Detective Taylor’s testimony by characterizing it as surplusage
18 following numerous other prosecution witnesses. The prosecutor must have known
19 that by having the last witness jurors would hear testify comment on Defendant’s 9
1 silence just prior to them retiring to deliberate, it would impact their decision
2 regarding Defendant’s guilt.
3 {13} Here, there is no question that the testimony elicited by the State was a direct
4 comment on Defendant’s right to remain silent. Generally, “[w]e . . . draw the line
5 between those comments which can be directly attributed to the prosecutor and those
6 comments incorporated within the testimony of a witness.” State v. Baca, 1976-
7 NMSC-015, ¶ 5, 89 N.M. 204, 549 P.2d 282. Had the commentary stopped after
8 Detective Taylor testified that he “attempted to interview [Defendant,]” this case
9 would fall neatly on the side of comments attributable only to the witness’s
10 testimony. However, in response to Defendant’s objection, the State made clear that
11 its intention was to elicit testimony regarding Defendant’s invocation of his Fifth
12 Amendment rights. See DeGraff, 2006-NMSC-011, ¶ 8 (“We evaluate the statement
13 in context to determine the manifest intention that prompted the remarks as well as
14 the natural and necessary impact upon the jury.” (internal quotation marks and
15 citation omitted)). Though the district court sought to limit the scope of the State’s
16 questioning on this point, any limitation was insufficient, as “New Mexico courts
17 have long held a prosecutor is prohibited from commenting on a defendant’s right
18 to remain silent[.]” State v. McDowell, 2018-NMSC-008, ¶ 4, 411 P.3d 337; see
19 Foster, 1998-NMCA-163, ¶ 9 (explaining “the general rule forbidding a prosecutor
20 from commenting on a defendant’s silence or introducing evidence of silence”). 10
1 {14} Additionally, the State did not heed the district court’s direction to limit its
2 questioning solely to whether Detective Taylor was able to get a statement from
3 Defendant. Instead, the State went further and adopted the questions the district court
4 suggested defense counsel ask of Detective Taylor to mitigate the prejudicial impact
5 of the testimony regarding Defendant’s post-arrest silence. This resulted in
6 testimony that explicitly mentioned Defendant’s invocation of his right to remain
7 silent, and it is directly attributable to the State.
8 {15} The State asks this Court to conclude that this error was invited by Defendant
9 because defense counsel misstated the last question asked of Detective Taylor by the
10 State just prior to the bench conference. We cannot do so. It appears defense
11 counsel’s misstatement during the bench conference was premised on a mistaken
12 belief that the district court inquired as to the question it had just ruled the State
13 could ask Detective Taylor. This was not an invitation opening the door for the State
14 to ask Detective Taylor about Defendant’s invocation of his right not to provide a
15 statement. Therefore, under such circumstances, we see no invited error. See State
16 v. Martinez, 2008-NMCA-052, ¶ 15, 143 N.M. 773, 182 P.3d 154 (observing that
17 “circumstances not caused or initiated by [the d]efendant” are not invited error);
18 State v. Foxen, 2001-NMCA-061, ¶ 12, 130 N.M. 670, 29 P.3d 1071 (declining to
19 hold that the defendant invited an error when “only a portion of the complete 11
1 problem may have been ‘invited[]’ ” by defense counsel and defense counsel’s
2 conduct was “simply the result of oversight or neglect”).
3 {16} In sum, we cannot conclude that the State has demonstrated this error was
4 harmless beyond a reasonable doubt. Detective Taylor’s testimony was the last heard
5 by the jury before it retired to deliberate, and the State has failed to convince us that
6 there is no reasonable probability that his testimony on Defendant’s exercise of his
7 right to remain silent contributed to Defendant’s convictions. Accordingly, we
8 reverse on this ground.
9 II. The Evidence Was Insufficient to Support Defendant’s Conviction for
10 Possession of Burglary Tools
11 {17} Because we reverse on Fifth Amendment grounds, we must address
12 Defendant’s contention that insufficient evidence was presented to support his
13 conviction for possession of burglary tools so as to avoid double jeopardy concerns
14 on remand if Defendant is retried. See State v. Consaul, 2014-NMSC-030, ¶ 41, 332
15 P.3d 850 (“To avoid double jeopardy concerns, we review the evidence presented at
16 the first trial to determine whether it was sufficient to warrant a second trial.”); State
17 v. Gonzales, 2020-NMCA-022, ¶ 22, 461 P.3d 920 (same). Defendant argues that
18 because the State presented no evidence that the screwdriver used as the basis for
19 the charge of possession of burglary tools was used to gain entry into the vehicle,
20 the evidence supporting this conviction is insufficient. We agree.12
1 {18} “The test for sufficiency of the evidence is whether substantial evidence of
2 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
3 reasonable doubt with respect to every element essential to a conviction.” State v.
4 Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and
5 citation omitted). “[W]e resolve all disputed facts in favor of the [s]tate, indulge all
6 reasonable inferences in support of the verdict, and disregard all evidence and
7 inferences to the contrary.” State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971
8 P.2d 829. “Although appellate courts are highly deferential to the jury’s decisions,
9 it is the independent responsibility of the courts to ensure that the jury’s decisions
10 are supportable by evidence in the record, rather than mere guess or conjecture.”
11 State v. Slade, 2014-NMCA-088, ¶ 14, 331 P.3d 930 (internal quotation marks and
12 citations omitted).
13 {19} “Burglary” is defined as “the unauthorized entry of any vehicle, watercraft,
14 dwelling or other structure, movable or immovable, with the intent to commit any
15 felony or theft therein.” NMSA 1978, § 30-16-3 (1971). “[T]he entry is the harm
16 sought to be prevented, as the crime is complete upon entry with the requisite intent.”
17 State v. Office of Pub. Def. ex rel. Muqqddin, 2012-NMSC-029, ¶ 60, 285 P.3d 622.
18 “While intent to commit any theft or felony is an element of burglary, entry is the
19 primary concern protected by the burglary statute.” State v. Ford, 2019-NMCA-073, 13
1 ¶ 13, 453 P.3d 471. “Burglary is a standalone crime and does not require the requisite
2 intended crime be completed after entry.” Id.
3 {20} To possess burglary tools, one must have “in the person’s possession a device
4 or instrumentality designed or commonly used for the commission of burglary and
5 under circumstances evincing an intent to use the same in the commission of a
6 burglary.” Section 30-16-5. In Ford, this Court held that our Legislature intended to
7 criminalize the use of tools while one commits, or intends to commit, a burglary,
8 meaning that “it is at the moment of entry or prior to the entry that the use or intended
9 use of burglary tools matters.” 2019-NMCA-073, ¶ 14. Thus, to be convicted for
10 possession of burglary tools, one must use, or intend to use, the tools to assist in
11 making an unauthorized entry. See id.
12 {21} Here, the evidence established that a screwdriver was found in a cup holder in
13 the truck. Detective Taylor testified that the ignition of the truck was damaged in
14 such a way as to be started by a screwdriver like the one found in the truck. While
15 the evidence also established that the locks to the truck were damaged, nothing in
16 evidence indicated that this damage was caused by a screwdriver. Rather, the State
17 proceeded only on the theory that Defendant used the screwdriver to drive the stolen
18 truck, and presented no evidence that Defendant used the screwdriver to enter the
19 truck. Because no evidence was presented that suggests Defendant possessed the
20 screwdriver before he entered the truck or had the intent to use the screwdriver to 14
1 gain entry into the truck, we conclude that insufficient evidence supports the
2 conviction for possession of burglary tools and reverse this conviction. On remand,
3 retrial on this charge is precluded. See State v. Lizzol, 2007-NMSC-024, ¶ 15, 141
4 N.M. 705, 160 P.3d 886 (stating that “a defendant may not be retried after the
5 conviction is set aside because of insufficient evidence”).
6 III. Insufficient Foundation Supported the Admission of the Surveillance
7 Video
8 {22} Defendant argues that the State laid an improper foundation for the admission
9 of the gas station surveillance video and that it should not have been admitted into
10 evidence. Specifically, Defendant contends that because Officer Barnhill did not
11 personally observe any of the events portrayed on the surveillance video and was
12 unfamiliar with the gas station’s surveillance video system, another witness was
13 necessary to authenticate the video. The State argues that this is a question of weight,
14 rather than admissibility, that is properly reserved for the jury. We agree with
15 Defendant and address this issue as it is likely to come up on remand.
16 {23} Generally, we review the district court’s “admission of evidence for an abuse
17 of discretion.” State v. Branch, 2010-NMSC-042, ¶ 9, 148 N.M. 601, 241 P.3d 602,
18 overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 n.6, 275
19 P.3d 110. An abuse of discretion occurs when the district court “exercises its
20 discretion based on a misunderstanding of the law.” State v. Vigil, 2014-NMCA21 096, ¶ 20, 336 P.3d 380. “A misapprehension of the law upon which the court bases 15
1 an otherwise discretionary evidentiary ruling is subject to de novo review.” State v.
2 Martinez, 2008-NMSC-060, ¶ 10, 145 N.M. 220, 195 P.3d 1232.
3 {24} Where no sponsoring witness can testify to the contents of photographic or
4 videographic evidence based on personal observation, New Mexico courts follow
5 the “silent witness” theory, under which the imagery portrayed “speaks for itself”
6 but must be authenticated through witness testimony. State v. Sweat, 2017-NMCA7 069, ¶ 21, 404 P.3d 20; see State v. Henderson, 1983-NMCA-094, ¶¶ 8, 11, 110
8 N.M. 260, 669 P.2d 736 (“A witness with knowledge must testify that the thing is
9 what it purports to be.”); see also Rule 11-901(A) NMRA (“To satisfy the
10 requirement of authenticating or identifying an item of evidence, the proponent must
11 produce evidence sufficient to support a finding that the item is what the proponent
12 claims it is.”).
13 {25} In Henderson, we held that sufficient evidence of authentication was
14 presented where “an officer in charge of the [ATM] machine” that generated images
15 of the defendant testified “about the film developing procedure” and that she
16 requested the film be developed from a specific date and time. 1983-NMCA-094,
17 ¶ 12. Recently, in State v. Imperial, this Court held a surveillance video was properly
18 authenticated where a store’s “[a]sset [p]rotection [a]ssociate” testified that the video
19 depicted the store location where she worked, the date and time information on the
20 video was programmed remotely, local employees could not manipulate the 16
1 surveillance system, the system operated twenty-four hours a day, the same system
2 operated at the store for five years, and “she [was] able to download surveillance
3 video from specific dates and times for up to ninety days.” 2017-NMCA-040, ¶¶ 12,
4 31-32, 392 P.3d 658.
5 {26} Here, no employee(s) from the gas station were called to testify at trial about
6 the gas station’s surveillance system. Officer Barnhill testified that he observed the
7 gas station employee(s) create a disc for him of the surveillance video purporting to
8 show this event. Unlike the witnesses who authenticated similar evidence in
9 Henderson and Imperial, Officer Barnhill could only testify about how he came to
10 obtain a copy of the surveillance video. He could not testify regarding the operation
11 of the surveillance system or the process for accessing and downloading surveillance
12 videos, whether the video could be manipulated, and he was unable to name the
13 employee(s) who downloaded the video and created the disc for him. Thus, we
14 conclude that he was unable to properly authenticate the video, which denied
15 Defendant a meaningful opportunity to cross-examine him on the operation and
16 reliability of the surveillance system. See State v. Glen Slaughter & Assocs., 1994-
17 NMCA-169, ¶ 5, 119 N.M. 219, 889 P.2d 254 (Noting that “[a] witness (who is
18 subject to cross-examination) can identify the tape recording as one produced by a
19 specific machine at a specific time and place and can allay concerns about tampering
20 with the tape”).17
1 {27} The State urges us to explicitly conclude that what has consistently served as
2 sufficient foundation in our “silent witness” cases is not necessary to authenticate
3 video recordings. Specifically, the State asks us to hold that as long as a minimal
4 threshold showing of authenticity is shown, “silent witness” video recordings should
5 be admissible, and the questions of reliability and accuracy should be left to the jury.
6 The State cites to case law from other jurisdictions to support its argument; however,
7 each case cited is distinguishable from the case at hand. Thus, in the absence of a
8 compelling reason, we will not depart from our precedent governing the
9 authentication of surveillance video evidence. See State v. Gonzales, 1990-NMCA10 040, ¶ 30, 110 N.M. 218, 794 P.2d 361 (“Until we are faced with a case in which
11 there is a reason to depart from a precedent, we will continue to apply it.”).
12 Therefore, under Henderson and our precedent governing authentication of evidence
13 such as the surveillance video in this case, we conclude that there was an insufficient
14 foundation to admit the video into evidence.
Outcome: We reverse Defendant’s convictions and remand this case to the district court with instructions to vacate Defendant’s conviction for possession of burglary tools and for further proceedings consistent with this opinion.
Plaintiff's Experts:
Defendant's Experts:
Comments: