Gomez v. State

The prosecutor did not make a prohibited golden rule argument in closing, as the comments at issue did not entreat the jury to place themselves in the victim's shoes but instead appealed to their desire to create a safe community.

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Clayton Ricardo Gomez appeals his theft by taking conviction. He argues that the trial court erred in failing to give curative instructions or to rebuke counsel because of certain comments the assistant district attorney made in opening statement. We find the error, if any, to be harmless, given that the only issue at trial was Gomez’s intent. We also conclude that, contrary to Gomez’s assertion, the state did not make a prohibited golden rule argument during closing argument. We therefore affirm Gomez’s conviction. Gomez was convicted of taking Clyde Stutts’s boat trailer. He admitted taking the trailer; his defense was that he thought the trailer was abandoned.

1. Gomez argues that the trial court should have rebuked the assistant district attorney or issued curative instructions because of certain comments the assistant district attorney made in his opening statement. Specifically, the assistant district attorney said, The investigator got a lead that a stolen trailer was there, and he went to Mr. Gomez’s residence. Pursuant to a Fourth Amendment waiver, he went onto his property and looked at a trailer that was parked on Mr. Gomez’s property, determined that it was stolen, determined that it belonged to Mr. Clyde Stutts, and ultimately took possession of it and returned it to Clyde Stutts. Once the assistant district attorney had completed his opening statement, Gomez objected to the reference to “a lead,” which he contended violated an order in limine to exclude any statements made by a confidential informant or any other witness not subpoenaed to testify. He also argued that the reference to a Fourth Amendment waiver impermissibly placed his character in issue.

Gomez v. State

The prosecutor did not make a prohibited golden rule argument in closing, as the comments at issue did not entreat the jury to place themselves in the victim's shoes but instead appealed to their desire to create a safe community.

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