January 17, 2019- State of New Mexico v. Jerry Kennedy, Jr., No. A-1-CA-36091

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-1-CA-36091
5 JERRY KENNEDY, JR.,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 Briana Zamora, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 Laurie Pollard Blevins, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 D. Eric Hannum
15 	Albuquerque, NM
16 McCleary & Richter-Freund
17 Mary McCleary
18 Albuquerque, NM
19 for Appellant
20 	MEMORANDUM OPINION
21 	GALLEGOS, Judge Pro Tempore.
22 	{I} 	Defendant Jerry Kennedy, Jr., appeals from the district court's affirmance of
23 	his convictions after a jury trial in metropolitan court for driving while intoxicated
24 (DWI), speeding, and resisting arrest. The issue before this Court is two-fold: (1)
Court of Appeals of New Mexico
Filed 1/17/2019 11:49 AM
Mark Reynolds

1 whether the State's comments in closing arguments bearing upon Defendant's .
2 silence violate his constitutional privilege against self-incrimination and right to due
3 process, and (2) whether the metropolitan court erred in denying Defendant's motion
4 for a mistrial on that basis. We conclude that while the State infringed upon
5 Defendant's right to 	due process, 	its 	comments nevertheless 	did not deprive
6 Defendant of a fair trial. We therefore affirm.
7 BACKGROUND
8 {2} 	While driving the speed limit on San Mateo Boulevard at approximately 8:00
9 p.m. on December 8, 2014, Albuquerque Police Officer Charles W. Miller noticed a
10 blue truck and a black Honda "going well faster than" his vehicle. Although the blue
11 	truck and black Honda appeared to be going the same speed, Officer Miller pulled
12 	over the black Honda as it was closer to his vehicle. During the traffic stop, Officer
13 	Miller observed that the driver of the black Honda, Jessica Villalobos, was exhibiting
14 	signs 	of intoxication. 	While administering 	field 	sobriety tests 	(FSTs) to 	Ms.
15 	Villalobos as part of a DWI investigation, Officer Miller saw the blue truck drive
16 past their location and park about three houses away on the right side of the street.
17 The driver got out of the truck, "went to the right real quick and then across the street
18 to the left as [Officer Miller looked] southbound down the street." Although Officer
19 Miller could not see their faces, he noticed that the driver and another p~rson were
2

1 standing outside and appeared to be talking ·and pointing in Officer Miller's
2 direction. Officer Miller did not see either individual drinking, eating, or smoking.
3 	{3} 	Approximately nine to ten minutes later, Defendant walked down the street
4 toward Officer Miller. Defendant approached Officer Miller and asked him about
5 posting bond for Ms. Villalobos. While speaking with Defendant, Officer Miller
6 noticed a strong odor of alcohol coming from Defendant, and also observed that
7 Defendant's eyes were bloodshot and his speech was "dragged, if not slurred, at
8 times." Defendant confirmed both that he was driving the blue truck and that he was
9 the person driving in front of Ms. Villalobos. Officer Miller then asked Defendant
10 whether he had consumed alcohol that evening, to which Defendant responded that
11 	he drank a couple of beers around lunchtime.
12 {4} 	At that point, suspecting Defendant of DWI, Officer Miller asked Defendant
13 	to undergo a series ofFSTs. Following Defendant's poor performance on the FSTs,
14 Officer Miller told Defendant to tum around and put his hands behind his back. As
15 	Officer Miller approached, Defendant yelled an expletive and ran away. Officer
16 Miller caught, physically restrained, and handcuffed Defendant. Officer Miller then
17 placed Defendant 	inside 	a patrol 	car. 	After having 	another 	officer transport
18 	Defendant to jail, Officer Miller administered a breath alcohol content (BAC) test to
19 Defendant. Results from Defendant's breath samples revealed a BAC of 0.14 and
20 0.13. Defendant was charged with DWI, speeding, and resisting arrest.
3

1 {5} 	At trial in metropolitan court, defense counsel told the jury in his opening
2 	statement that although Defendant consumed two beers earlier in the day, "there will
3 be no evidence that he was intoxicated or impaired to any degree when he was
4 driving." Defense counsel explained that after driving and parking his vehicle,
5 "[Defendant] went to my witness's, James Chavez, his friend, they live in the same
6 neighborhood, to pay him some money and he consumes some alcohol there."
7 During the defense case, Mr. Chavez testified that Defendant went to his house
8 around 8:00 p.m. and consumed a couple of shots of Jack Daniels whiskey and a
9 beer during the fifteen to twenty minutes he was there. Mr. Chavez testified that
10 Defendant wanted a cigarette and walked across the street to Mr. Chavez's brother's
11 	house to get one, and never returned. Defendant himself did not testify.
12 	{6}
13
14
15
16
17
18
During closing argument, the State argued:
[Defendant] didn't tell Officer Miller on December 8 of 2014 that he
had just had a large amount of alcohol to drink. And if you're being
investigated for DWI, I think it's a fact that might've come up at that
time. When [Defendant] was being placed under arrest that would've
been a very good time to say "Wait no let me explain. I was driving,
but I drank after the fact." Instead he-
19 At that point, Defendant moved for a mistrial, arguing that the State was asserting
20 that Defendant had a duty to explain hi~self. The State responded, "I'm not saying
21 	there's a duty, judge. I'm saying that using reason and common sense, it might've
22 come up at this time. I do believe [defense counsel] has opened the door directly to
23 	this line of argument." After the metropolitan court stated it was not ready to declare
4

1 a mistrial, defense counsel asked the metropolitan court "to caution the district
2 attorney not to comment on my client's right to remain silent." The State explained
3 that he had not done so, but was instead "talking about the date of the arrest." The
4 metropolitan court stated, "Defendant has the right to remain silent. He could have
5 indicated to the officer that he had a drink earlier but I think you need to be careful
6 with that argument." During rebuttal, the State argued, without objection, "If you
7 truly believe that [Defendant] drove to his friend's house, consumed several shots of
8 Jack Daniels and a beer, then approached Officer Miller, and at no point in time
9 during the investigation thought to tell Officer Miller that he had drank after he had
10 driven, you know, you should find him not guilty. However, I don't think with all
11 	the facts in front of us that that creates a reasonable doubt."
12 	{71 	Following the jury's guilty verdict on all counts, Defendant appealed to the
13 	district court. The district court affirmed the metropolitan court's judgment and
14 	sentence. In its memorandum opinion, the district court concluded that because
15 	Defendant did not argue Officer Miller gave Defendant his warnings, pursuant to
16 Miranda v. Arizona, 384 U.S. 436 (1966), "[t]he [State's] comment is, therefore, not
17 a 	reference 	to 	post-Miranda 	silence 	and 	did 	not 	otherwise 	invade 	a 	direct
18 	constitutional protection. See [State v.] Sosa, 2009-NMSC-056, 126[, 147 N.M. 351,
19 	223 P.3d 348]." The district court also concluded that the State's comment was
20 "isolated and briefl,]" and Defendant "invited the State's comment by setting forth
5

1 the drank-after-driving defense in opening statements and presenting the witness
2 testimony to support it."
3 DISCUSSION
4 	{8} 	Defendant appeals 	from the district court's on-record affirmance 	of the
5 metropolitan court's judgment and sentence. On appeal to this Court, Defendant
6 	challenges the metropolitan court's denial of his motion for a mistrial on grounds
7 that the State commented on his silence in violation of his privilege against self-
8 incrimination and his right to due process.
9 	I.
10 	{9}
Standard of Review
"For on-record appeals the district court acts as a typical appellate court, with
11 	the district court simply reviewing the record of the metro[politan] court trial for
12 	legal error." State v. Hall, 2016-NMCA-080, ,-r 7, 380 P.3d 884 (internal quotation
13 marks and citation omitted). "In subsequent appeals such as this, we apply the same
14 standards of review employed by the district court." Id. (internal quotation marks
15 	and citation omitted). "Where the error is preserved, we review a district court's
16 denial of a motion for mistrial on the basis of remarks made in closing argument for
17 an abuse of discretion." State v. Ramos-Arenas, 2012-NMCA-117, ,-f 16, 290 P.3d
18 	733 (alterations, internal quotation marks, and citations omitted). "An abuse of
19 discretion exists when the [district] court acted in an obviously erroneous, arbitrary,
20 	or unwarranted manner." State v. Fry, 2006-NMSC-001, ,-f 50, 138 N.M. 700, 126
6

1 P.3d 516 (alteration, internal quotation marks, and citation omitted). "If a mistrial is
2 denied, a new trial may be ordered on appeal unless the [s]tate can show the error is
3 harmless." State v. DeGraff, 2006-NMSC-Ol l, if 12, 139 N.M. 211, 131 P.3d 61. "In
4 the absence of a timely objection from a defendant, comments on a defendant's
5 exercise of his or her ... right to remain silent[] are reviewed for fundamental error."
6 Id.
7 	{to} 	Defendant objected to the State's first comment during closing argument.
8 Defendant failed, however, to do so after the State's second comment during its
9 rebuttal argument. However, we ultimately conclude that the result here would be
10 the same regardless of whether we review for abuse of discretion or fundamental
11 	error. Therefore, in order to simplify our analysis, we will treat both comments as
12 having garnered timely objections, and we review the metropolitan court's denial of
13 	Defendant's motion for a mistrial for abuse of discretion. To the extent that this
14 requires us to resolve Defendant's argument that the State improperly commented
15 	on his silence, our review is de novo. See id. ,r 6 (explaining that the issue of whether
16 the state's comments on a defendant's silence violated his constitutional rights
17 "raise[s] questions of constitutional law, which we review de novo").
18 	II.
19
20 	{11}
The 	Metropolitan 	Court Did 	Not Abuse Its 	Discretion 	in 	Denying
Defendant's Motion for a Mistrial
When reviewing whether the State's comments during closing arguments
21 	warrant reversal, three factors "carry great influence in our deliberations: (1) whether
7

1 the statement invades some distinct constitutional protection; 	(2) whether the
2 statement is isolated and brief, or repeated and pervasive; and (3) whether the
3 statement is invited by the defense." Sosa, 2009-NMSC-056, 126. "These three
4 factors are useful guides, but in the final analysis context is paramount." Id. 134.
5 These factors are applied by our courts when reviewing for either an abuse of
6 discretion or fundamental error. See id. 126 ("We have reviewed over 30 years of
7 appellate decisions regarding challenges to closing arguments under both standards
8 of review, and we discern three factors that appear to carry great influence[.]"). "Our
9 courts also consider whether the evidence of guilt is overwhelming, whether the
10 	improper statement is corrected by counsel or limited by the court, or whether the
11 	fact manipulated by the statement is determinative to the outcome of the case." State
12 v. Sena, 2018-NMCA-037, 117, 419 P.3d 1240. "The common thread running
13 	through the cases finding reversible error is that the [state's] comments materially
14 altered the trial or likely confused the jury by distorting the evidence, and thereby
15 	deprived the accused of a fair trial." Id. (alteration, internal quotation marks, and
16 citation omitted). We consider each of these factors in tum.
17 A. 	The State's Comments Invaded a Distinct Constitutional Protection
18 	{12} 	"New Mexico courts have long held that a prosecutor is prohibited from
19 commenting on a defendant's right to remain silent[.]" State v. McDowell, 2018-
20 NMSC-008, 14,411 P.3d 337. "There are three independent underpinnings for [this
8

1 prohibition]: 	(1) 	the 	constitutional 	privilege 	against 	self-incrimination, 	(2)
2 constitutional 	due 	process, 	and 	(3) 	the 	rules 	of evidence 	barring 	irrelevant
3 evidence ... and evidence whose probative value is substantially outweighed by the
4 danger of unfair prejudice[.]" State v. Foster, 1998-NMCA-163,, 9, 126 N.M. 177,
5 967 P.2d 852 (citation omitted).
6 	1. 	The State Commented on Defendant's Silence
7 {13} 	"We first consider whether the 	[state] 	commented on [the d]efendant's
8 silence[.]" DeGraff, 2006-NMSC-O 11, , 7. In so doing, we "consider whether the
9 language used [by the state] was manifestly intended to be or was of such a character
10 that the jury would naturally and necessarily take it to be a comment on the
11 	[defendant's] exercise of his or her right to remain silent." Id., 8 (intei;nal quotation
12 marks and citation omitted). "We evaluate the statement in context to determine the
13 	manifest intention that prompted the remarks as well as the natural and necessary
14 	impact upon the jury." Id. (internal quotation marks and citation omitted). "Where
15 	comments by the prosecutor are ambiguous, we consider what inference the jury was
16 	asked to draw from the defendant's silence and the propriety of that inference." Id.
18 	{14} 	In the case before us, we are dealing with two separate comments by the State.
19 The first comment by the prosecutor occurred during the State's closing argument:
20
21
[Defendant] didn't tell Officer Miller on December 8 of 2014 that he
had just had a large amount of alcohol to drink. And if you're being
9

1
2
3
4
investigated for DWI, I think it's a fact that might've come up at that
time. When [Defendant] was being placed under arrest that would've
been a very good time to say "Wait no let me explain. I was driving,
but I drank after the fact." Instead he-
5 The second comment, uttered during the State's rebuttal, was that Defendant "at no
6 point in time during the investigation thought to tell Officer Miller that he had drank
7 after he had driven."
8 {15} 	Our Supreme Court has determined that comments similar to those made in
9 this case were comments on the defendant's silence. See id. 113-4, 9. In DeGrajf,
10 the state argued in closing argument that the defendant's failure to tell the police that
11 	he killed the victim to defend himself from the victim's "sexual advances," indicated
12 that the defendant's subsequent explanation to that effect was fabricated. Id. 113-4.
13 	Our Supreme Court held that this comment was "implicitly ask[ing the jury] to reject
14 	[the d]efendant's self-defense explanation because [the d]efendant did not offer it
15 	immediately[,]" thereby "invit[ing] the jury to infer guilt from silence." Id. 119-10;
16 State v. 	Hennessy, 	1992-NMCA'.-069, 1118-19, 	114. N.M. 283, 837 P.2d 1366
17 (concluding that the state's cross-examination of the defendant regarding his failure
18 to tell the police his alibi before trial was a comment on his silence), overruled on
19 other grounds by State v. Lucero, 1993-NMSC-064, 116 N.M. 450, 863 P.2d 1071.
20 But cf Foster, 1998-NMCA-163, 1114-15 (holding that when a defendant testifies,
21 	evidence of inconsistencies between the defendant's pretrial statements and trial
22 testimony was proper). As our Supreme Court has explained, Hennessy and Foster,
10

1 while seemingly contradictory, "illuminate the difference between a. permissible
2 comment on a defendant's incomplete statement, as in Foster, and commenting on
3 a defendant's silence, as in Hennessy." DeGraff, 2006-NMSC-011,, 9.
4 	{16} 	F9r several reasons, Foster is inapposite here. First, Defendant did not testify
5 and thus the State was not commenting on an inconsistency between Defendant's
6 testimony and his pretrial statements to the police that he had drank a couple beers
7 around 	lunchtime. 	Moreover, 	as 	in 	DeGraff and 	Hennessy, 	the 	State 	was
8 commenting on Defendant's silence by highlighting his failure to tell Officer Miller
9 that he drank after driving. The State was thus inviting the jury to infer that
10 Defendant's 	drank-after-driving 	defense 	was 	fabricated. 	Consequently, 	we
11 	determine that the State's two statements constituted comments on Defendant's
12 	silence.
13 	2. 	Defendant's Silence Was Constitutionally Protected
14 {17} 	To 	determine 	whether 	Defendant's 	silence 	was 	protected, 	we 	must
15 	appropriately categorize that silence. "There are four relevant time periods at which
16 a defendant may either volunteer a statement or remain silent: before arrest; after
17 arrest, but before the warnings required by Miranda . . . have been given; after
18 	Miranda warnings have been given; and at trial." DeGraff, 2006-NMSC-O 11, , 	11.
19 Categorizing the silence is important because each of these time periods is afforded
20 differing levels of protection. See id.,, 12-14.
11

1 {18} 	Defendant presents this case as involving post-arrest, post-Miranda silence. If
2 Defendant is correct, the State's comments on his post-Miranda silence violate due
3 process. See DeGraff, 2006-NMSC-011, , 	12 ("[D]ue process guaranteed by the
4 Fifth 	Amendment 	[to 	the 	United 	States 	Constitution] 	protects 	post-Miranda
5 silence."); see also Doyle v. Ohio, 426 U.S. 610, 617-19 (1976) (holding that using
6 a defendant's post-arrest, post-Miranda silence for impeaching the defendant's
7 testimony at trial is a violation of due process); Wainwright v. Greenfield, 474 U.S.
8 284, 292-93 (1986) (holding that, as in Doyle, it would 'be unfair to breach the
9 promise assured in Miranda warnings by using a defendant's silence as affirmative
10 proof of the defendant's guilt).
11 	{19} 	The State, however, argues that the silence in this case occurred during the
12 period of time following Defendant's arrest, but before he was read his Miranda
13 	rights. As both sides point out, the question of whether and to what extent the state
14 may use a defendant's post-arrest, pre-Miranda silence as affirmative proof of guilt
15 	has not been resolved in New Mexico. See DeGraff, 2006-NMSC-011, ,, 13, 18
16 (noting the lack of New Mexico law on this issue, and assuming for purposes of that
17 case that Miranda warnings were given); State v. Gutierrez, 2003-NMCA-077,, 10,
18 	133 N.M. 797, 70 P.3d 787 (same); State v. Garcia, 1994-NMCA-147, ,, 10-11,
19 	118 N.M. 773, 887 P.2d 767 (assuming for the purposes of that case that the same
20 standard of review applies to post- and pre-Miranda silence). Thus, if the State is .
12

1 correct, we must determine whether, and to what extent, post-arrest, pre-Miranda
2 silence can be used by the State as affirmative proof of guilt. 1
3 	{20} 	We note the metropolitan court did not make a finding regarding whether
4 Defendant was given his Miranda warnings. However, with the benefit of Officer
5 Miller's lapel camera footage, we are presented with evidence in the record from
6 which we can determine whether Miranda 	warnings were given. 	See State v.
7 Martinez, 2015-NMCA-051, 115, 348 P.3d 1022 (explaining that "reviewing a
8 video by itself is like reviewing any other documentary evidence, and we are in as
9 good a position as the district court to view the video and interpret what it shows"),
10 rev'd on other grounds, 2018-NMSC-007, 410 P.3d 186. Footage from Officer
11 	Miller's lapel camera reflects the passage of approximately ten minutes from the
12 point at which Defendant first approached Officer Miller to when Officer Miller
13 	physically restrained and cuffed Defendant after Defendant attempted to run away.
1The United States Constitution does not prohibit the use of post-arrest, pre-
Miranda silence to impeach a testifying defendant at trial. See Fletcher v. Weir, 455
U.S. 603, 607 (1982) (holding that it is not a violation of due process of law to
impeach a testifying defendant with his post-arrest, pre-Miranda silence); Foster,
1998-NMCA-163, 113 (explaining that "the privilege against self-incrimination is
no bar to impeaching a defendant's testimony with evidence of the defendant's
silence ... after arrest" (citations omitted)). However, Defendant did not testify in
this case, and there is a division among the federal circuits as to whether the reading
of Miranda warnings serves as the line separating post-arrest silence, which the state
consistent with a defendant's privilege against self-incrimination, can and cannot
use as substantive evidence. See United States v. Wilchombe, 838 F.3d 1179, 1190
(11th Cir. 2016) (describing the circuit-split).
13

1 Additionally, roughly three minutes elapsed from when Officer Miller physically
2 restrained and cuffed Defendant to when Officer Miller placed Defendant inside the
3 patrol vehicle, at which point the lapel camera footage cuts off. During this time,
4 Officer Miller was assisted by another officer. Neither Officer Miller nor any other
5 officer gave Miranda warnings to Defendant during either period. With no evidence
6 to the contrary, we conclude that Defendant was not, given his Miranda warnings
7 until, at the earliest, after he was placed inside the patrol vehicle. Therefore, as the
8 State contends, there was indeed a period of time between Defendant's arrest and
9 when he was presumably given his Miranda rights.
10 	{21} 	We are not convinced, however, that we are dealing solely with Defendant's
11 	silence during the period following his arrest, but prior to being advised of his
12 Miranda rights. That is, there is nothing that necessarily tethers the State's comments
13 	on Defendant's silence to the post-arrest, pre-Miranda period. In fact, the State's
14 broad references to "December 8" and "during [the] investigation" could very well
15 	be seen to encompass the various pre-arrest, post-arrest but pre-Miranda, and post-
16 arrest and post-Miranda time periods. As such, in categorizing Defendant's silence,
17 we must assume that the State commented at least indirectly on Defendant's post-
18 	arrest, post-Miranda silence. Accordingly, we need not determine the extent to
19 which post-arrest, pre-Miranda silence is protected, nor shall we weigh-in on the
20 ongoing federal split of authority on this question. Instead, given the State's broad
14

1 and vague statements during its closing argument and rebuttal, we conclude that the ,
2 State's 	comments 	on 	Defendant's 	silence 	invaded 	a 	distinct 	constitutional
3 protection, which weighs in favor of reversal.
4 {22} 	We pause to remind the State that it has the burden to prove a defendant's
5 guilt beyond a reasonable doubt. It is not a defendant's obligation to prove him or
6 herself not guilty. Delving into a discussion about why a non-testifying defendant
7 remained silent obfuscates this burden. We have previously admonished the State to
8 refrain from engaging in this type of trial stratagem, and we are compelled to do so
9 again today. See Hennessy, 1992-NMCA-069, 123.
10 B. 	The State's Comments Were Isolated and Brief
11 	{23} 	"Extensive comment is more likely to cause error, whereas the general rule is
12 that an isolated comment made during closing argument is not sufficient to warrant
13 	reversal." Sosa, 2009-NMSC-056, 129 (alteration, internal quotation marks, and
14 citation omitted). This Court has previously concluded that the state's comments are
15 	brief or isolated when they were limited to closing argument and were relatively
16 brief. See, 	e.g., Sena, 2018-NMCA-037, 1116, 18 (determining that the state's
17 comments were isolated and brief when they "were confined to closing argument
18 	and were relatively brief'); State v. Landers, 1992-NMCA-131, 1111-12, 115 N.M.
19 	514, 853 P.2d 1270 (concluding there was no reversible error when the state made
20 one improper comment to the jury in closing argument before being admonished by
15

1 the district court and another after being admonished), overruled on other grounds
2 	by State v. Kerby, 2005-NMCA-106, ,, 26-29, 138 N.M. 232, 118 P.3d 740.
3 	{24} 	In this case, the State's comments on Defendant's silence were isolated to
4 closing argument and rebuttal and constituted a relatively brief portion of the State's
5 roughly eleven-minute initial closing argument and five-minute rebuttal. Because
6 the comments were not repeated or pervasive, we do not see this factor as weighing
7 in favor of reversal.
8 C. 	The Defense Invited the State's Comments
9 {25} 	Turning to the third factor, we note that defense counsel repeatedly asked
10 Officer Miller 	on 	cross-examination whether he 	asked Defendant 	if he 	had
11 	consumed 	any 	alcohol 	after parking his 	vehicle. 	Defense 	counsel's 	repeated
12 questioning as to whether Officer Miller asked Defendant about his alibi strongly
13 	suggested that there was an account that Defendant had not relayed to the officer,
14 and that the officer himself was to blame for not asking the correct questions. This
15 	line of questioning by the defense placed Defendant's silence-regarding his post-
16 driving drinking exploits-directly into issue and practically invited the State to
17 comment upon the account not provided at that time by Defendant. But cf Garcia,
18 	1994-NMCA-147, , 	15 	(rejecting the state's argument that the purpose 	of its
19 questioning of an officer was to explain why he had not investigated the defendant's
20 alibi at the time of the investigation, because there was no evidence that the defense
16

1 argued the state had failed to investigate the alibi properly). Consequently, this factor
2 weighs against reversal.
3 D. 	Defendant Was Not Deprived of a Fair Trial
4 {26} 	Beyond the three factors previously discussed, Sosa requires that we analyze
5 the context and determine whether the state's "comments materially altered the trial
6 or likely confused the jury by distorting the evidence, and thereby deprived the
7 accused of a fair trial." 2009-NMSC-056,, 34. To resolve the question of whether
8 the state's 	comments 	deprived the 	defendant 	of a fair trial, 	"we review the
9 comment[ s] in context with the closing argument as a whole and in the context of
10 the remaining trial proceedings so that we may gain a full understanding of the
11 	comments and their potential effect on the jury." Fry, 	2006-NMSC-001, , 50
12 (internal quotation marks and citation omitted). Viewing the State's relatively brief
13 	comments in context with the closing argument and the trial as a whole, we conclude
14 the State's comments did not deprive Defendant of a fair trial. The thrust of the
15 	State's closing argument was to highlight Defendant's high BAC level, the short
16 time frame available to Defendant after he parked his car to consume enough alcohol
17 to reach that BAC level, his flawed performance during the FSTs, Mr. Chavez's
18 potential bias as Defendant's long-time friend, and Defendant's attempt to run away,
19 	indicating consciousness of guilt. The comments on Defendant's silence were a very
20 brief part of the State's closing arguments. Moreover, given the evidence of guilt
17

1 presented by the State-including Defendant's admissions to driving and to having
2 a couple of beers at lunchtime, his poor performance on the FSTs, and his breath test
3 results of 0.14 and 0.13-we cannot say the State's comments materially altered the
4 trial or confused the jury, thereby depriving Defendant of a fair trial. We therefore
5 conclude that the 	metropolitan court did not 	abuse 	its 	discretion 	in 	denying
6 Defendant's motion for a mistrial.
7 CONCLUSION
8 {27} 	For these reasons, we affirm.
9 	{28} 	IT IS SO ORDERED.
10
11 	DANIEL J. GALLEGOS, Judge Pro Tempore
12 WE CONCUR:
13j.~
J4 	J. MILES HANISEE, Judge
15 	1.J.1-./~
16 HENRY M. BOHNHOF;J0dgePro Tempore
18