State v. Wildgrube6/23/2003
ation of his rights); State v. Hennessy, 114 N.M. 283, 288, 837 P.2d 1366, 1371 (Ct. App. 1992) (" he constitutional bar against the use of silence does not apply to cross-examination which inquires into prior inconsistent statements."), overruled on other grounds by State v. Lucero, 116 N.M. 450, 453-54, 863 P.2d 1071, 1074-75 (1993).
The State also argues that Defendant cannot give an explanation to the jury for his invocation of counsel and then claim error occurred when he was cross-examined about his testimony. As the Supreme Court held in Brown v. United States, 356 U.S. 148, 154-55 (1958) (internal quotation marks and citation omitted):
If [the defendant in a criminal case] takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness . . . . e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.
See also State v. Olguin, 88 N.M. 511, 513, 542 P.2d 1201, 1203 (Ct. App. 1975); accord State v. Foster, 1998-NMCA-163, 13, 126 N.M. 177, 967 P.2d 852. We agree with the State that "as a general proposition, a prosecutor is entitled to respond to defense counsel's argument." State v. Clark, 108 N.M. 288, 298, 772 P.2d 322, 332 (1989), overruled on other grounds by State v. Henderson, 109 N.M. 655, 789 P.2d 603 (1990), overruled on other grounds by Clark v. Tansy, 118 N.M. 486, 882 P.2d 527 (1994); accord State v. Estrada, 2001-NMCA-034, 34, 130 N.M. 358, 24 P.3d 793. However, in this case, the prosecutor's questions, in attempting to impeach Defendant's testimony about when and why he had stopped answering the police officer's questions, did comment improperly on Defendant's invocation of his right to silence. Her final questions on cross-examination are focused more on Defendant's refusal to answer questions than on his inconsistent statements.
We must determine, therefore, whether the trial court abused its discretion in overruling Defendant's objection. We do not disturb such a ruling "unless its ruling is arbitrary, capricious, or beyond reason." State v. Duffy, 1998-NMSC-014, 46, 126 N.M. 132, 967 P.2d 807. To do so, we examine the comment within the context of the trial. United States v. Young, 470 U.S. 1, 12 (1985); accord Trujillo, 2002-NMSC-005, 60 (reviewing prosecutor's statements in the context of the facts and circumstances of the case).
Although we will address Defendant's claim as being preserved below, we note initially that when Defendant objected, he did not state the nature of his objection or move to strike the question to prevent a response. On appeal, Defendant asserts that the objection was to prosecutorial misconduct related to the improper nature of the prosecutor's question on cross-examination. However, there is nothing in the record to indicate that Defendant specifically alerted the trial court to his current claim that the question was an improper comment on Defendant's post-Miranda invocation of his right to counsel. After the trial court overruled the objection, Defendant did not again object when the prosecutor concluded the cross-examination with two similar questions, nor did he ask for a limiting instruction.
" t is the responsibility of counsel at trial to elicit a definitive ruling on an objection from the court. It is also trial counsel's duty to state the objections so that the trial court may rule intelligently on them and so that an appellate court does not have to guess at what was and what was not an issue at trial."
Harrison, 2000-NMSC-022, 28 (quoting State v. Lucero, 116 N.M. 450, 453, 863 P.2d 107
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