January 7, 2019- State of New Mexico v. Carmen Gonzales, No. A-1-CA-37522

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No.A-1-CA-37522
5 CARMEN GONZALES,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Jacqueline D. Flores, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 The Law Office of Ramsey & Hoon, LLC
13 	Twila A. ·Hoon
14 Albuquerque, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 VANZI, Chief Judge.
18 	{I} 	Defendant appeals following her conviction for DWI. We previously issued a
19 notice of proposed summary disposition, proposing to affirm. Defendant has filed a
20 memorandum in opposition. After due consideration, we remain unpersuaded by-
21 	Defendant's assertion of error. We therefore affirm.
Court of Appeals of New Mexico
Filed 1/7/2019 8:59 AM
Mark Reynolds

1 {2} 	Defendant's challenging on appeal concerns the district court's handling of a
2 closing comment. The prosecutor appears to have invited the jury to reflect upon the
3 evidence presented in support of the DWI charge, as "[i]fyou were on the road that
4 night, or if your child [inaudible] ... " [DS 4] Defendant argued that comment
5 constituted an improper appeal to sympathy or prejudice, and requested a curative
. 6 instruction. [DS 4-5] The district court denied Defendant's request, and simply
7 ordered the State to "move on." [DS 4]
8 	{3} 	In her memorandum in opposition Defendant contends that the prosecutor's
9 	comment was designed to inflame the jury, and was sufficiently indecorous and
10 prejudicial to her right to a fair trial that the district court's failure to issue a
11 	corrective instruction resulted in reversible error. 	[MIO 2-3] However, as we
12 previously observed, the comment was brief and isolated, and it did not invade any
13 	constitutional protection. This weighs against Defendant's assertion of error. See
14 Statev. Sosa, 2009-NMSC-056, 131, 147N.M. 351,223 P.3d348 ("[O]urappellate
15 	courts have consistently upheld convictions where a prosecutor's impermissible
16 comments are brief or isolated."); State v. Brown, 1997-NMSC-029, 123, 123 N.M.
17 413, 941 P .2d 494 ("The general rule is that an isolated comment made during closing
18 	argument is not sufficient to warrant reversal."). Moreover, we remain unpersuaded
19 that the comment was sufficiently egregious to require a different response. "Because
2

1 trial judges are in the best position to assess the impact of any questionable comment,
2 we 	afford 	them 	broad 	discretion 	in 	managing 	closing 	argument." 	Sosa,
3 2009-NMSC-056, ,r 25. "Only in the most exceptional circumstances should we, with
4 the limited perspective of a written record, determine that all the safeguards at the
5 trial level have failed. Only in such circumstances should we reverse the verdict of
6 a jury and the judgment of a trial court." Id. We conclude that this is not such a case.
7 {4} 	Accordingly, for the ·reasons stated in the notice of proposed summary
8 disposition and above, we affirm.
9 {5}
10
11
IT IS SO ORDERED.
12 WE CONCUR:
13~~
14 JULIJ.VARAs;.iie
15 	~'~ 	•
16 	JE~i:ATTREP, Judge
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