concluding that unchallenged inappropriate comments and gestures from the trial judge, along with the defendant's improperly admitted criminal history and the court's refusal to admit films to corroborate the defendant's claim of victim's tendencies toward violent sexual conduct constituted cumulative error requiring a new trial
How later courts described this case
- concluding that unchallenged inappropriate comments and gestures from the trial judge, along with the defendant's improperly admitted criminal history and the court's refusal to admit films to corroborate the defendant's claim of victim's tendencies toward violent sexual conduct constituted cumulative error requiring a new trial
- stating that 6 cumulative error “requires reversal of a defendant’s conviction when the cumulative 7 impact of errors which occurred at trial was so prejudicial that the defendant was 8 deprived of a fair trial”
- determining that the defendant’s argument that the district judge made unnecessary statements to defense counsel was not properly preserved for review where no objections were made to the statements at trial
- holding that an appellate court may not consider matters not of record
Written by the judges who cited it.
The opinion
RIORDAN, Justice (specially concurring).
I concur with Chief Justice Federici that the defendant is entitled to a new trial.
I cannot concur, however, with the way the Chief Justice addresses the issue of the cross-examination of the defendant about her statements on the insurance forms as to “cause of death,” or the issue of the psychologist’s, Dr. Roll’s, testimony as an “expert” witness.
I agree with Chief Justice Federici that the defendant’s statements on the insurance forms are prior inconsistent statements which may be used for impeachment. I therefore agree that the Chief Justice reaches the proper result in upholding the cross-examination of the defendant as to those statements. The defendant’s claim that the cross-examination violates her right to remain silent is frivolous.
The defendant’s statements on the insurance forms were not the result of custodial interrogation and therefore are not precluded nor in any way affected by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).
[T]he prosecution may not use statements * * * stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
Id. at 444 , 86 S.Ct. at 1612 .
Since the statements were not in response to custodial interrogation, it is immaterial whether the defendant had been advised of her rights. In this case, she voluntarily filled out the insurance claim forms. Therefore, Miranda does not apply-
I also cannot concur with the apparent holding that unobjected-to statements by the trial judge may be considered as part of the “irregularities” that resulted in cumulative error. As stated by the Chief Justice, this Court does not consider errors which were not specifically objected to at trial unless the error falls within one of three exceptions. NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 308 (Repl.Pamp.1983). Without citing to any authority, the Chief Justice allows the accumulation of unobjected-to statements to fall within the “fundamental rights” exception.
A reviewing court’s discretion for finding fundamental error is to be exercised with extreme caution, and fundamental error must be construed carefully. See State v. Lott, 73 N.M. 280 , 387 P.2d 855 (1963); State v. Tapia, 79 N.M. 344 , 443 P.2d 514 (Ct.App.1968). The Chief Justice’s holding broadens the fundamental error exception by allowing defendants who fail to object to errors at trial to nevertheless obtain review simply by accumulating those unobjected-to errors.
Finally, I cannot concur with the holding that a psychologist may be called to support or attack the credibility of a witness.
Generally, expert testimony as to credibility of a witness is admissible if the subject matter involves organic or mental disorders * * *. If, however, the characteristic attacked does not involve some organic or mental disorder, or some impairment of the mental or physical faculties by injury, disease, or habit, expert testimony is usually excluded.
Annot., 20 A.L.R. 3rd 684, 688, 689 (1968).
The Chief Justice apparently holds that evidence is allowed attacking credibility (or I assume supporting it) as long as the witness testifies as an “expert.”
Just because NMSA 1978, Evid.Rule 704 (Repl.Pamp.1983) specifies that the testimony is admissible even if “it embraces an ultimate issue to be decided by the trier of fact,” I do not believe that expert testimony becomes admissible in every case on every issue. The trial will always evolve into a battle of the experts with the party having the most money being able to call the greatest number of experts to testify that a witness is or is not credible. The jury will lose sight of the real issue which is the credibility of the witness, not the credibility of the expert.
The greatest error in this case is the reliance upon the admission of polygraph test results as the basis for the discussion of the admission of the psychologist’s testimony. Notwithstanding this Court’s adoption of NMSA 1978, Evid.Rule 707 (Repl. Pamp.1983), there are still serious questions whether polygraph test results are generally accepted as reliable in the scientific community and should be admitted in court. In my opinion, the testimony about polygraph test results is time consuming, many times unreliable, and of dubious value to the trier of fact. Once the conductor of the polygraph test is cross-examined or the other side presents its “expert,” the conductor’s credibility, instead of the witness’s, becomes the focus of the credibility issue.
I would hold that the trial court did not err in excluding the testimony of the psychologist because I believe it is inadmissible.