N.M. R. Crim. P. Dist. Ct. 5-607
The order of trial shall be as follows:
N.M. R. Crim. P. Dist. Ct. 5-607
Committee commentary. - Nothing in the provisions of Paragraph E of this rule alters long-settled law that a defendant, by presenting evidence, "waive[s a] a claim that the evidence at the close of the State's case [is] is insufficient for submission to the jury." State v. Lard, 1974-NMCA-004, ¶ 4, 86 N.M. 71, 519 P.2d 307. However, under Paragraph K of this rule the defendant need no longer move for a directed verdict at the close of all of the evidence to preserve a claim that the evidence was insufficient to allow the case to go to the jury. Lard, 1974-NMCA-004, at ¶ 6; see State v. Hernandez, 1993-NMSC-007, ¶ 66, 115 N.M. 6, 946 P.2d 312 (pointing to Rule 5-607(K) in holding that a trial court's "procedural lapse" in failing to rule on the sufficiency of the evidence at the close of all evidence itself "preserves the issue of sufficiency of the evidence for appellate review").
The 1975 amendments to this rule inserted a new Paragraph B to allow for instructions at the outset of the trial as provided in Rule Set 14 NMRA, Uniform Jury Instructions - Criminal. In addition, a new Paragraph L of this rule alerts the court and counsel that the procedure for settling instructions at the close of the evidence is provided for in Rule 5-608 NMRA.
[As amended by Supreme Court Order No. 21-8300-020, effective for all cases pending or filed on or after December 31, 2021.]
ANNOTATIONS The word "shall" in this rule is mandatory. State v. Davis, 1982-NMCA-057, 97 N.M. 745, 643 P.2d 614. Order of trial when insanity defense raised. - Until these rules are amended to accommodate for a bifurcated trial, separating the issues of insanity and guilt when the insanity defense is raised, the order prescribed by this rule should be followed. State v. Luna, 1980-NMSC-009, 93 N.M. 773, 606 P.2d 183. It is trial court's duty to see that no improper statements are made which are likely to influence the jury in their verdict, and that the cause is tried upon the sworn testimony of the witnesses. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485. This rule does not provide for motions for a directed verdict to be taken under advisement. State v. Davis, 1982-NMCA-057, 97 N.M. 745, 643 P.2d 614. Under Subdivision (k) (see now Paragraph K), the issue is whether there is sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320. Determination of sufficiency of evidence for submission to jury. - The trial court's proper function is limited; it should only determine whether the evidence is sufficient for the submission of the case to the jury; in doing so, the trial court is to view the evidence in the light most favorable to the state. State v. Davis, 1982-NMCA-057, 97 N.M. 745, 643 P.2d 614. The trial court's failure to rule on the sufficiency of the evidence must be considered as a denial of the defendant's challenge to the sufficiency of the evidence. State v. Davis, 1982-NMCA-057, 97 N.M. 745, 643 P.2d 614. Failure of the trial court to rule on the sufficiency of the evidence before presentation of the case to the jury did not merit reversal, but merely preserved the issue of sufficiency of the evidence for appellate review. State v. Hernandez, 1993-NMSC-007, 115 N.M. 6, 846 P.2d 312. Legal conclusion, upon review, considered in light favorable to prosecution. - Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion, that, upon judicial review, all of the evidence is to be considered in the light most favorable to the prosecution. State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320. Attempted murder conviction dependent upon conspiracy not sustained where conspiracy evidence insufficient. - Where a conviction for attempted first-degree murder is a derivative liability which depends on a conviction for conspiracy to commit first-degree murder and there is insufficient evidence to sustain the conspiracy conviction, the evidence is insufficient to sustain the attempt conviction. State v. Sheets, 1981-NMCA-064, 96 N.M. 75, 628 P.2d 320. Determining sufficiency of evidence in absence of motion for directed verdict. - The issue of the sufficiency of the evidence was before the appellate court even though no motion for a directed verdict was made at the close of the evidence. State v. Herrera, 1977-NMCA-028, 90 N.M. 306, 563 P.2d 100, cert. denied, 90 N.M. 636, 567 P.2d 485. State's contention that defendant who did not move for a directed verdict at the close of all the evidence waived any claim that the evidence was insufficient was correct under prior law, but under this rule, absence of a motion for a directed verdict at the close of all the evidence did not waive the claim that the evidence was insufficient at that point because the trial court was required to make that determination in the absence of a motion. State v. Lard, 1974-NMCA-004, 86 N.M. 71, 519 P.2d 307. On motion to dismiss, evidence viewed in light most favorable to state. - The trial court, in passing upon a motion to dismiss the charges, is to view the evidence in the light most favorable to the state. State v. Rodriguez, 1970-NMSC-073, 81 N.M. 503, 469 P.2d 148. Counsel is entitled to reasonable measure of latitude in closing remarks to a jury and statements having their basis in the evidence, together with reasonable inferences to be drawn therefrom, are permissible and do not warrant reversal. State v. Herrera, 1972-NMCA-068, 84 N.M. 46, 499 P.2d 364, cert. denied, 84 N.M. 37, 499 P.2d 355. Rebuttal argument found not to assert state's theory of case for first time. - Where the state's rebuttal argument, even when taken out of context as defendant did, was fairly within the evidence and consistent with the state's theory of first-degree murder presented throughout the trial, including its opening argument, defendant's contention that the state asserted its theory of the case for the first time during its rebuttal argument and that defendant was prejudiced because unable to respond to the new theory was frivolous. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170. Am. Jur. 2d, A.L.R. and C.J.S. references. - 75A Am. Jur. 2d Trial §§ 495, 496, 535 to 538, 540. Adequacy of defense counsel's representation of criminal client regarding argument, 6 A.L.R.4th 16. Prosecutor's reference in opening statement to matters not provable or which he does not attempt to prove as ground for relief, 16 A.L.R.4th 810. Prosecutor's appeal in criminal case to racial, national, or religious prejudice as ground for mistrial, new trial, reversal, or vacation of sentence - modern cases, 70 A.L.R.4th 664. Propriety of trial court order limiting time for opening or closing argument in criminal case - state cases, 71 A.L.R.4th 200. Negative characterization or description of defendant, by prosecutor during summation of criminal trial, as ground for reversal, new trial, or mistrial - modern cases, 88 A.L.R.4th 8. Propriety and prejudicial effect of counsel's negative characterization or description of witness during summation of criminal trial - modern cases, 88 A.L.R.4th 209. 88 C.J.S. Trial §§ 31 to 35.