March 30, 2020- State of New Mexico v. Nicholas Valles, No. A-1-CA-37287

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37287	4
NICHOLAS VALLES,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	7
Douglas R. Driggers, District Judge	8
Hector H. Balderas, Attorney General	9
Maris Veidemanis, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
MJ Edge, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
VANZI, Judge.	18
{1} 	Defendant appealed from the district court’s denial of his motion for a	19
mistrial, based on the State arguing facts not in evidence during its closing. This	20
Court issued a notice of proposed disposition, proposing to reverse. The State filed	21
a memorandum in opposition, which contained a recitation of additional facts. Based	22
Court of Appeals of New Mexico
Filed 3/30/2020 11:22 AM

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on those facts, we issued a second notice proposing to affirm. Defendant filed a	1
memorandum in opposition, which we have duly considered. Unpersuaded, we	2
affirm.	3
{2} 	Our second notice proposed to affirm on the basis that the prosecutor’s	4
statements appeared to have been invited responses to defense counsel’s inaccurate	5
statements that Defendant was not offered a breath test, and performed the same	6
function as the evidence of Defendant’s “refused” breath test that the district court	7
had stated could be used to impeach Defendant. [2 CN 4] We therefore proposed to	8
conclude that the prosecutor’s comments in this regard constituted an invited	9
response and that the other comments concerning Defendant’s consciousness of guilt	10
were appropriately resolved through curative instructions, and therefore neither	11
warranted a mistrial. [2 CN 5]	12
{3} 	We relied on the additional facts provided by the State for our proposed	13
disposition. [CN 3-4] In response, Defendant does not point to any error with our	14
reliance on those facts. [MIO 1-4] See State v. Mondragon, 1988-NMCA-027, ¶ 10,	15
107 N.M. 421, 759 P.2d 1003 (requiring that a party responding to a summary	16
calendar notice must come forward and specifically point out errors of law and fact,	17
and the repetition of earlier arguments does not fulfill this requirement). Indeed,	18
Defendant concedes that defense counsel argued in closing that the State’s evidence	19
did not explain why Defendant was not given a breath test because the State had not	20

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been able to show that evidence. [MIO 4] However, he continues to argue that the	1
prosecutor’s comments constituted prosecutorial misconduct and cannot be excused	2
by the invited-error doctrine, as “the comments in this case were far more	3
prejudicial” than cases where invited error excused conduct. [MIO 8] Defendant	4
claims that this is because the prosecutor argued facts not in evidence. [D MIO 9]	5
We are not persuaded.	6
{4} 	The very purpose of the invited-response doctrine is to excuse comments by	7
the prosecutor, including facts not in evidence, which might otherwise constitute	8
reversible error when defense counsel’s closing argument opens the door to such	9
comments. See State v. Pennington, 1993-NMCA-037, ¶ 28, 115 N.M. 372, 851 P.2d	10
494. It was defense counsel who first raised facts not in evidence by implying the	11
absence of a breath test. “[W]e are least likely to find error where the defense has	12
opened the door to the prosecutor’s comments by its own argument or reference to	13
facts not in evidence.” State v. Sosa, 2009-NMSC-056, ¶ 33, 147 N.M. 351, 223 P.3d	14
348 (internal quotation marks and citation omitted). This is true regardless of	15
whether the responsive comment was improper. See State v. Wesson, 1972-NMCA-	16
013, ¶ 9, 83 N.M. 480, 493 P.2d 965 (“Even if the comment was improper, which	17
we do not determine, it was invited and the court’s ruling was not error.”).	18
{5} 	Moreover, Defendant’s argument that the prosecutor’s comments in State v.	19
Jaramillo, 	which 	were 	excused 	under 	invited-response 	doctrine, 	were 	less	20

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prejudicial than the comments at issue in this case, is not determinative of our	1
analysis. [MIO 8] 1975-NMCA-050, ¶ 12, 88 N.M. 60, 537 P.2d 55. The question is	2
whether “the prosecutor’s invited response, taken in context, unfairly prejudiced the	3
defendant” under the specific facts of this case. Pennington, 1993-NMCA-037, ¶ 30	4
(internal quotation marks and citation omitted). At trial, evidence was presented that	5
Defendant failed to stop at a red light, admitted to consuming alcohol prior to	6
driving, and the officer conducting field sobriety tests believed the tests indicated	7
that Defendant was impaired. [DS 3] Considering the prosecutor’s comments in the	8
specific context of this case, where the district court sustained defense counsel’s	9
objections and gave curative instructions, together with the additional evidence of	10
guilt, including Defendant’s own admission, we conclude that Defendant was not	11
unfairly prejudiced such that he was denied a fair trial. See State v. Varos, 1961-	12
NMSC-099, ¶ 12, 69 N.M. 19, 363 P.2d 629 (citing with approval a California case	13
in which after a court found there was invited error, it found that together with a full	14
warning by the trial court and strong evidence of guilt, no prejudice had resulted);	15
cf. State v. Diaz, 1983-NMCA-091, ¶ 19, 100 N.M. 210, 668 P.2d 326 (reversing	16
due to cumulative error resulting from the prosecutor’s repeated, over extensive,	17
improper remarks to the jury).	18
{6} 	Lastly, our initial calendar notice addressed the docketing statement’s issue	19
(A), regarding the dropping of the aggravated DWI charge, and proposed to conclude	20

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Defendant had not demonstrated error. [CN 6] Defendant did not respond to our	1
proposed disposition in his memorandum in opposition, and we therefore adopt and	2
incorporate that resolution in this memorandum opinion. [2 CN 6] See State v.	3
Salenas, 1991-NMCA-056, ¶ 2, 112 N.M. 268, 814 P.2d 136 (stating that where a	4
party has not responded to this Court’s proposed disposition of an issue, that issue is	5
deemed abandoned).	6
{7} 	For these reasons, and those stated in the second calendar notice, we affirm.	7
{8} 	IT IS SO ORDERED.	8
_________________________	9
LINDA M. VANZI, Judge	10
WE CONCUR:	11
_____________________________	12
KRISTINA BOGARDUS, Judge	13
_____________________________	14
ZACHARY H. IVES, Judge	15