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State v. Allen12/1/1999
tions than we." United States v. Moore, 104 F.3d 377, 390- 91 (D.C. Cir. 1997). We note that the inmate's testimony regarding Defendant's conversation with his trial counsel appeared in the context of a line of questioning about a series of inculpatory statements that Defendant made to that inmate. The prosecutor's questions focused on this series of inculpatory statements and any details about the crimes that they might reveal. These statements were relevant in proving Defendant's guilt. Thus, when we consider context, we cannot say the reference to Defendant's trial counsel was elicited for an improper purpose or that it makes the question of guilt "'so doubtful that it would shock the conscience to permit the conviction to stand,'" State v. Osborne, 111 N.M. 654, 662, 808 P.2d 624, 632 (1991) (quoting State v. Rogers, 80 N.M. 230, 232, 453 P.2d 593, 595 (Ct. App. 1969)); cf. State v. Clark, 1999-NMSC-035, 54, ___ N.M. ___, ___ P.2d ___ [hereinafter Clark III] (rejecting the defendant's contention that the State improperly impugned the integrity of defense counsel by accusing him of trying to circumvent the judicial system), nor did the admission of this testimony amount to plain error.
{35} Finally, we note that some portions of the inmates' testimony were consistent with Defendant's position of maintaining his innocence at trial. In particular, the statements that the evidence against Defendant was circumstantial and that he would "beat this case" were consistent with that position. Inasmuch as these statements were self- serving, we cannot say that Defendant was unfairly prejudiced by their admission. Thus, we do not find a basis for reversal in the admission of the inmate's testimony regarding Defendant's statements about his trial strategy or his communications with his trial counsel.
D. Risk to the State's Witnesses
{36} Defendant asserts that the trial court erred by allowing testimony about the "inmate code" under which inmates may place their own safety in jeopardy by testifying against other inmates. Defendant also challenges the prosecutor's remark regarding the possibility that inmate witnesses "could get a shank in them."
{37} The prosecutor's line of questioning was invited by defense counsel's repeated attacks on the credibility of the inmate witnesses. During his opening statement, for example, defense counsel stated, "the only people who are going to be pointing to [Defendant] and saying he it are . . . jailhouse snitches." Defense counsel continued to raise the issue of the inmates' credibility during cross-examination, when he questioned each of the inmate witnesses about possible incentives that might have given these witnesses a motive to lie. During closing argument, defense counsel urged the jury not to base its verdict "on the word of child rapers, liars, thieves, people hoping to get lesser sentences when they face judgment themselves."
{38} Given that attacking the credibility of the inmate witnesses in this manner was such a central theme of the defense, the prosecution was entitled to introduce evidence to rebut this attack. See United States v. Mitchell, 556 F.2d 371, 379-80 (6th Cir. 1977); 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 607.09 , at 607-104 to -107 (Joseph M. McLaughlin, ed., 2d ed. 1999); 27 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure § 6098, at 583-85 (1990). Further, the evidence that the prosecution introduced to support the inmate witnesses' credibility "logically refutes the specific focus of the attack" on their credibility. 27 Wright & Gold, supra, § 6098, at 585. Such evidence suggested that the benefits to be obtained
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