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State v. Gomez10/13/2005
E COURT: - without your specific request.
[DEFENSE COUNSEL]: My inclination is not to have you give it, but I would like to just sort of ponder it over the evening.
THE COURT: Yes. It won't be given unless it comes from the defense request.
In the end, a no-adverse-inference instruction was given to the jury without objection, but the record does not indicate that Gomez consented to the instruction. The record does indicate that Gomez's counsel had the opportunity to review the preliminary instructions and seek changes before the instructions were finalized. No changes to the no-adverse-inference instruction were sought nor was any objection made to that instruction. In addition, after the instructions were given to the jury, Gomez's counsel answered "No" when asked by the trial court whether there were "any objections, additions or anything on the instructions." Finally, before the jury returned its verdict, the court asked whether either of the parties would like to put anything on the record. Gomez's counsel also answered "No" to that question.
Here, the trial court gave the no-adverse-inference instruction without placing Gomez's consent to the instruction on the record and Gomez did not make any objection. Thus, our review is for plain error. Because the record does not contain Gomez's consent to the giving of the no-adverse-inference instruction, we conclude that giving the instruction was error and that the error was plain. See Darris, 648 N.W.2d at 240. The first and second prongs of the plain error test are satisfied.
In this case, the primary issue at trial was the identity of the killer. While there was no direct evidence, the state presented circumstantial evidence, including a partial DNA profile, fingerprint identification, handwriting analysis, wiretapped conversation, similar crimes committed by Gomez, and testimony of other witnesses. We have concluded above that evidence of Gomez's prior crimes was relevant to prove identity and the probative value of the evidence is not outweighed by its potential for unfair prejudice. Moreover, the record shows that the state's key witnesses, including Lori Williamson, were subject to extensive cross-examination. The credibility of these witnesses is for the jury to decide. Given the totality of the evidence, it seems unlikely that the jury would have reached a different verdict. We conclude both that Gomez has failed to show that the error was prejudicial and that he has failed to meet his heavy burden of showing that there "is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury's verdict." Darris, 648 N.W.2d at 240.
Because the third prong of the plain-error test is not satisfied, we need not consider the effect of the error on the fairness and integrity of the trial. We note, however, that the trial court stated, on the record, its intent not to give the instruction without Gomez's consent and that the defense counsel had the opportunity to review the instruction and seek changes to it but did not. Thus, although we need not decide this issue, the record suggests that Gomez acquiesced in the instruction being given.
In summary, because the error in giving the instruction did not significantly affect the jury's verdict, we conclude that Gomez is not entitled to a new trial based on that error.
III.
Finally, we address Gomez's contention that the state's peremptory strikes of three non-Caucasian venirepersons deprived him of a fair trial. Specifically, Gomez challenges the state's peremptory strikes of venirepersons 9, 12, and 21. Purposeful racial discrimination in jury selection is prohib
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