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State v. Fernandez4/14/1994
tracks the language of Section 30-24-3(A)(3). See ("Generally, an instruction that parallels the language of the statute and contains all essential elements of the crime is sufficient.").
Defendant tendered Proposed Jury Instruction No. "C" which the court refused. Defendant's proposed instruction "C" read as follows: "In order to find the Defendant guilty of the offense of intimidation of a witness, you must find that Defendant had the specific intent to intimidate a witness when he authored the letter of January 6, 1992 to Officer David Romo." Defendant was not entitled to his tendered instruction because the jury was adequately instructed on the requisite intent by the instructions given. See ), cert. denied, 101 N.M. 362, 683 P.2d 44 (1984).
VII. OFFER OF PROOF
Defendant contends "the trial court improperly refused to allow the defense to make a tender of proof through Officer David Romo." (Emphasis omitted.) Although it is not entirely clear, Defendant's claim apparently refers to the defense theory concerning the scope of the Attorney General's Office investigation which was previously raised in the context of Defendant's allegations of judicial bias. An offer of proof stated in mere conclusory terms is too general and should be rejected. ), cert. denied, 100 N.M. 327, 670 P.2d 581 (1983); see also SCRA 1986, 11-103.
Defendant further claims the trial court stated it would allow an offer of proof from Officer Romo "when the State called Officer Romo as a rebuttal witness." The State, of course, had no duty to call Officer Romo as a rebuttal witness and did not do so. It is unclear why Defendant apparently did not make the offer of proof during its cross-examination of Romo. It is also unclear how Taos Police Officer Romo's proffered testimony regarding an investigation by the Attorney General's Office, a separate law enforcement agency, could have been crucial to Defendant's "scope of the investigation defense." It is not error to reject an offer of proof where the party making the tender does not clearly identify the relevance of the evidence. ), cert. denied, 90 N.M. 7, 558 P.2d 619 (1976). We see no error in the rejection of an offer of proof regarding what Romo knew about how the Attorney General's Office investigated this case in comparison with other claims.
VIII. PROSECUTOR'S COMMENT
Defendant cites as "perhaps one of the single most egregious errors in the trial" a comment by the prosecutor regarding the Defendant's decision not to testify. A review of the relevant portion of the record reflects that this comment by the trial prosecutor was likely inadvertent.
After the defense had called several witnesses, the district court asked defense counsel, in open court, who else the defense intended to call. Defense counsel responded, "I intend to call Mr. David Fernandez
[and others]." This dialogue was immediately followed by the court granting a requested recess to defense counsel to confer with his client. At this point, the jury was excused and counsel and the court discussed the use of defense counsel's flip-charts during closing argument. After the jury re-entered the courtroom, defense counsel announced to the court that the defense rested its case. The trial tape then reflects the court expressed surprise, and asked the prosecutor whether there would be any rebuttal by the State. After a pause, the prosecutor responded that he was "not in a position to rebut until tomorrow morning, your Honor. I expected, we all expected, the defendant to testify . . . ." Defendant never entered an objection to the prosecuto
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