State v. Sosa

1 Analyses of this case by attorneys

  1. NM: “Birchfield does not prohibit the introduction of evidence of, and commentary on, evidence establishing a defendant’s refusal to take a blood test.”

    Law Offices of John Wesley HallJohn Wesley HallOctober 7, 2017

    A court is “least likely to find [fundamental] error where the defense has opened the door to the prosecutor’s comments by its own argument or reference to facts not in evidence.” State v. Sosa, 2009-NMSC-056, ¶ 33, 147 N.M. 351, 223 P.3d 348 (internal quotation marks and citation omitted); cf. State v. Smith, 2001-NMSC-004, ¶ 5, 130 N.M. 117, 19 P.3d 254 (noting, in a murder trial, that defense counsel stated during opening that the defendant remained in the vehicle and did not participate in the killing; declining to reverse conviction based on the prosecutor’s comment on lack of testimony to bear out counsel’s representation, since the defense invited the argument). “That the prosecutor can refer to the defendant’s failure to testify if the door is opened by the defense, is well supported by case law.”