State v. Flanagan, 801 P.2d 675 (N.M. Ct. App. 1990). · Go Syfert
State v. Flanagan, 801 P.2d 675 (N.M. Ct. App. 1990). Cases Citing This Book View Copy Cite
“when the prosecutor started this line of questioning, the public defender objected____the court allowed all three questions and overruled defendant's objection to the line of questioning.”
115 citation events (94 in the last 25 years) across 20 distinct courts.
Strongest positive: State v. Perea (nmctapp, 2011-06-15)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 30 distinct citers.
examined Cited as authority (verbatim quote) State v. Perea (2×) also: Cited as authority (quoted)
N.M. Ct. App. · 2011 · signal: see · quote attribution · 2 verbatim quotes · confidence high
the general rule in 13 new mexico is that error in admission of evidence is cured by striking the evidence 14 and admonishing the jury to disregard it.
examined Cited as authority (verbatim quote) State v. Soto (7×) also: Cited as authority (rule), Cited "see", Cited "see, e.g."
N.M. Ct. App. · 2007 · signal: see · quote attribution · 1 verbatim quote · confidence high
when the prosecutor started this line of questioning, the public defender objected____the court allowed all three questions and overruled defendant's objection to the line of questioning.
examined Cited as authority (verbatim quote) State v. Graves (4×) also: Cited as authority (rule), Cited "see, e.g."
Iowa · 2003 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
whether the defendant believes the other witnesses were truthful or lying is simply irrelevant.
discussed Cited as authority (verbatim quote) State v. Hart
Mont. · 2000 · quote attribution · 1 verbatim quote · confidence high
it is the role of the jury to determine the credibility of witnesses
discussed Cited as authority (rule) State v. Vazquez
Neb. · 2025 · confidence medium
App. 93, 97, 801 P.2d 675, 679 (1990) (improper to ask if another witness is “‘mistaken’” or “‘lying’”); People v. Adams, 148 A.D.2d 964 , 539 N.Y.S.2d 200 (1989) (cannot ask if other testimony was lie); People v. Riley, 63 Ill.
discussed Cited as authority (rule) State v. Leutschaft
Minn. Ct. App. · 2009 · confidence medium
United States v. Henke, 222 F.3d 633, 643 (9th Cir.2000); United States v. Fernandez, 145 F.3d 59, 64 (1st Cir.1998); United States v. Lin, 101 F.3d 760, 769 (D.C.Cir.1996); *421 United States v. Scanio, 900 F.2d 485, 492-93 (2d Cir.1990), abrogated on other grounds by Ratzlaf v. United States, 510 U.S. 135 , 114 S.Ct. 655 , 126 L.Ed.2d 615 (1994); Liggett v. People, 135 P.3d 725, 732 (Colo.2006); State v. Santiago, 269 Conn. 726 , 850 A.2d 199, 209-11 (2004); State v. Singh, 259 Conn. 693 , 793 A.2d 226, 236-39 (2002); Knowles v. State, 632 So.2d 62, 65 (Fla.1993); State v. Maluia, 107 Hawai'…
discussed Cited as authority (rule) Esco v. State
Miss. Ct. App. · 2008 · confidence medium
See Daniel v. State, 119 Nev. 498 , 78 P.3d 890, 904 (2003); Beaugureau v. State, 56 P.3d 626, 635-36 (Wyo.2002); State v. Singh, 259 Conn. 693, 793 A.2d 226, 239 (2002); Knowles v. State, 632 So.2d 62, 65-66 (Fla. 1993) (holding that the error was harmless); State v. Casteneda-Perez, 61 Wash.App. 354 , 810 P.2d 74, 79 (1991); State v. Flanagan, 111 N.M. 93 , 801 P.2d 675, 679 (Ct.App.1990) (holding that the error was harmless).
discussed Cited as authority (rule) State v. McCLAUGHERTY
N.M. · 2008 · confidence medium
We concluded that Montoya’s use of this highly prejudicial practice merited reversal of Defendant’s convictions holding that “[t]he statements made to the police were not used simply to challenge the credibility of a witness’s testimony, but to prove that Defendant actually admitted to shooting a gun on that night.” Id. ¶ 25. {64} In State v. Flanagan, 111 N.M. 93, 97 , 801 P.2d 675, 679 (Ct.App.1990), the Court of Appeals imposed a strict prohibition against asking the defendant if another witness is mistaken or lying and established as standard that such behavior is categorically …
discussed Cited as authority (rule) State v. Duran
N.M. · 2006 · confidence medium
A. Improper Questioning by the Prosecutor {18} In State v. Flanagan, 111 N.M. 93, 97 , 801 P.2d 675, 679 (Ct.App.1990), the Court of Appeals indicated that a strict prohibition would be imposed upon asking the defendant if another witness is mistaken or lying, particularly “in a criminal case where defendant is forced to characterize numerous witnesses, including police officers, as ‘incorrect’ or ‘mistaken’ in order for his or her testimony to be credible.” Id.
discussed Cited as authority (rule) Liggett v. People
Colo. · 2006 · confidence medium
See State v. Santiago, 269 Conn. 726 , 850 A.2d 199, 209-11 (2004) (finding such questions invade the province of the jury, have no probative value, distort the government’s burden of proof, and are improper and argumentative); State v. Singh, 259 Conn. 693 , 793 A.2d 226 (2002) (same); Knowles v. State, 632 So.2d 62 (Fla.1993) (finding such questions improper); State v. Maluia, 107 Hawai'i 20 , 108 P.3d 974, 978 (2005) (finding “were they lying” questions are improper because they invade province of jury, are argumentative, have no probative value, create a risk that the jury may conclu…
discussed Cited as authority (rule) Jensen v. State
Wyo. · 2005 · confidence medium
First of all, the justification for admitting this evidence — that the defendant has opened the door- — does not resolve the fundamental doubt as to the probative value of such questioning. [State v. Flanagan, 111 N.M. 93 , 801 P.2d 675, 679 (N.M.Ct.App.1990) ] (“Whether the defendant believes the other witnesses were truthful or lying is simply irrelevant.”); People v. Berrios, 298 A.D.2d 597 , 750 N.Y.S.2d 302, 302 (2002) (“Whether the defendant believed that the other witnesses were lying is irrelevant.” (Citation omitted.)) Secondly, the exception depends on a difficult determi…
discussed Cited as authority (rule) State v. Johnson (2×)
Wis. · 2004 · confidence medium
App. 1978); State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003); State v. Manning, 19 P.3d 84, 100 (Kan. 2001); Commonwealth v. Martinez, 726 N.E.2d 913, 923-24 (Mass. 2000); Daniel v. State, 78 P.3d 890, 904 (Nev. 2003); State v. Flanagan, 801 P.2d 675, 679 (N.M.
discussed Cited as authority (rule) Daniel v. State
Nev. · 2003 · confidence medium
See also Hill v. State, 98 Nev. 295, 296 , 647 P.2d 370, 370-71 (1982) (“[T]he defendant’s belief in the necessity of using force in self-defense must be reasonable.”); NRS 200.130. 32 See Keiser, 57 F.3d at 857 . 33 Burgeon v. State, 102 Nev. 43, 45-46 , 714 P.2d 576, 578 (1986). 34 Id. 35 116 Nev. 321 , 997 P.2d 800 . 36 Id. at 326-27, 997 P.2d at 803 . 37 State v. Daniels, 465 N.W.2d 633, 636 (Wis. 1991). 38 Id. at 636-37 . 39 Id. at 637 . 40 Dickson v. State, 108 Nev. 1, 3 , 822 P.2d 1122, 1123 (1992). 41 Bishop v. State, 92 Nev. 510 , 515 n.2, 554 P.2d 266 , 270 n.2 (1976). 42 DeCha…
discussed Cited as authority (rule) State v. Pilot
Minn. · 1999 · confidence medium
Scott v. United States, 619 A.2d 917, 924-25 (D.C.1993) (stating "[w]e have repeatedly condemned questioning by counsel which prompts one witness to suggest that he or she is telling the truth and that contrary witnesses are lying."); United States v. Richter, 826 F.2d 206, 208 (2d Cir.1987) (stating "[p]rosecutorial cross-examination which compels a defendant to state that law enforcement officers lied in their testimony is improper"); Casteneda-Perez, 810 P.2d at 79 (stating that the prosecutor's use of "were they lying" questions during cross-examination of defendant invaded the province of…
discussed Cited as authority (rule) State v. La Madrid
N.M. Ct. App. · 1997 · confidence medium
The district court would be acting well within its discretion in finding that Denhollander’s opinion, as opposed to his personal knowledge of the facts of the case (such as facts inconsistent with the women’s trial testimony), would not be “helpful.” Cf State v. Flanagan, 111 N.M. 93, 96-98 , 801 P.2d 675, 678-80 (Ct.App.1990) (improper to ask defendant if another witness is lying).
discussed Cited as authority (rule) State v. Stevenson
Utah Ct. App. · 1994 · confidence medium
See State v. Casteneda-Perez, 61 Wash.App. 354 , 810 P.2d 74, 79-80 (1991) (stating that answers such as "I don’t know" or "perhaps the witness was mistaken” in response to questions about the veracity of other witnesses made improper question harmless error); State v. Flanagan, 111 N.M. 93, 97 , 801 P.2d 675, 679-80 (App.1990) (holding that accused provided explanation for discrepancy suggested by prosecutor therefore no reversible error) cert. denied, 111 N.M. 77 , 801 P.2d 659 (1990). 6 .
discussed Cited as authority (rule) Buffett v. Jaramillo
N.M. Ct. App. · 1993 · confidence medium
Ordinarily, an improper ruling cannot be ground for reversal unless the trial court was alerted to the erroneous basis of its ruling, see State v. Flanagan, 111 N.M. 93, 98 , 801 P.2d 675, 680 (Ct.App.), cert. denied, 111 N.M. 77 , 801 P.2d 659 (1990), and a pretrial motion in limine can hardly alert the court that a prediction in an opposing party's response to the motion turned out at trial to be incorrect.
discussed Cited as authority (rule) Buffett v. Jaramillo
N.M. Ct. App. · 1993 · confidence medium
Ordinarily, an improper ruling cannot be ground for reversal unless the trial court was alerted to the erroneous basis of its ruling, see State v. Flanagan, 111 N.M. 93, 98 , 801 P.2d 675, 680 (Ct.App.), cert. denied, 111 N.M. 77 , 801 P.2d 659 (1990), and a pretrial motion in limine can hardly alert the court that a prediction in an opposing party’s response to the motion turned out at trial to be incorrect.
discussed Cited "see" State v. Stenerson (2×)
N.M. Ct. App. · 2025 · signal: see · confidence high
See State v. Flanagan, 1990-NMCA-113 , ¶ 8, 111 N.M. 93 , 801 P.2d 675 (holding that a mistrial was properly denied where the possibility of prejudice was highly speculative and the defendant did not ask for prompt admonition). {10} Defendant next challenges the sufficiency of the evidence supporting his conviction for CSP. [BIC 14-22] When reviewing for sufficiency, we view the evidence in the light most favorable to the verdict, then determine “whether the evidence viewed in this manner could justify a finding by any rational trier of fact that each element of the crime charged has been e…
discussed Cited "see" State v. Lopez (2×)
N.M. Ct. App. · 2023 · signal: see · confidence high
See State v. Flanagan, 1990-NMCA-113 , ¶¶ 9, 17, 111 N.M. 93 , 801 P.2d 675 (providing that objections relating to comments on veracity are reviewed for an abuse of discretion); State v. Sosa, 2009-NMSC-056, ¶ 26 , 147 N.M. 351 , 223 P.3d 348 (providing in closing argument context, “[w]here error is preserved at trial, an appellate court will review under an abuse of discretion standard”). {3} Defendant first argues that the district court erred in allowing testimony from the lead detective in the investigation regarding her opinion of Defendant’s credibility during a post-arrest inte…
discussed Cited "see" Little v. Baigas (2×)
N.M. Ct. App. · 2016 · signal: see · confidence high
See State v. Flanagan, 1990-NMCA-113 , ¶ 1, 111 N.M. 93 , 801 P.2d 675 (“Issues not briefed on appeal are deemed abandoned.”); see also Rule 12-213(A)(4) NMRA (requiring that a brief in chief set forth an argument, standard of review, explanation of preservation, and citation to authority in support of each issue presented on appeal).
discussed Cited "see" Little v. Baigas (2×)
N.M. Ct. App. · 2016 · signal: see · confidence high
See State v. Flanagan, 5 1990-NMCA-113 , ¶ 1, 111 N.M. 93 , 801 P.2d 675 (“Issues not briefed on appeal are 6 deemed abandoned.”); see also Rule 12-213(A)(4) NMRA (requiring that a brief in 7 chief set forth an argument, standard of review, explanation of preservation, and 8 citation to authority in support of each issue presented on appeal).
discussed Cited "see" Briggs v. Smith
N.M. Ct. App. · 2013 · signal: see · confidence high
See State v. Flanagan, 1990-NMCA-113 , ¶ 1, 111 19 N.M. 93 , 801 P.2d 675 (“Issues not briefed on appeal are deemed abandoned.”). 8 1 Furthermore, “[the appellate courts] will not disturb a [district] court’s exercise of 2 discretion in denying or granting a motion for a new trial unless there is a manifest 3 abuse of discretion.” State v. Garcia, 2005-NMSC-038, ¶ 7 , 138 N.M. 659 , 125 P.3d 4 638 . 5 {16} Plaintiffs make passing mention of proposed findings of fact and conclusions 6 of law without citing to the record where they may exist, and we have not seen any in 7 the record.
discussed Cited "see" State v. Soto (2×)
N.M. Ct. App. · 2011 · signal: see · confidence high
See State v. Flanagan, 111 N.M. 93, 98 , 801 P.2d 675, 680 (Ct. 5 App. 1990 ) (stating that the purpose of the preservation rule is to “apprise the trial 6 court of the nature of the error and invoke an intelligent ruling on the issue”). “[S]ince 7 the issue of denial of the right to confrontation may not be raised for the first time on 8 appeal, we will not address [the d]efendant’s Sixth Amendment issue, but only the 9 district court’s grant of the [s]tate’s motion in limine on an evidentiary basis.” State 10 v. Riley, 2010-NMSC-005, ¶ 26 , 147 N.M. 557 , 226 P.3d 656 (citatio…
discussed Cited "see" State v. Zapata (2×)
N.M. Ct. App. · 2010 · signal: see · confidence high
See State v. Flanagan, 111 N.M. 93, 95 , 801 P.2d 675, 677 (Ct. App. 1990) 3 (“The general rule in New Mexico is that error in the admission of evidence is cured 4 by striking the evidence and admonishing the jury to disregard it.”). 5 INEFFECTIVE ASSISTANCE OF COUNSEL 6 Defendant contends that his trial attorney made several errors that denied him 7 effective assistance of counsel.
discussed Cited "see" State v. Turrietta (2×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See State v. Flanagan, 111 N.M. 93, 97 , 801 P.2d 675, 679 (Ct. 18 App. 1990 ).
discussed Cited "see" State v. Mosimann (2×)
N.M. Ct. App. · 2009 · signal: see · confidence high
See State v. Flanagan, 111 N.M. 93, 95-96 , 801 P.2d 675, 677-78 (Ct. 8 App. 1990 ) (holding that a mistrial was properly denied where the possibility of 9 prejudice was highly speculative). 10 To the extent Defendant claims that the court’s refusal to cure the false 11 testimony by ordering a new trial denied him the right to present a defense, we 12 disagree. [DS 14] Presumably, Defendant wanted to benefit from introducing 13 additional evidence that he was the one that requested another test.
discussed Cited "see" State v. Andrade (2×)
N.M. Ct. App. · 1997 · signal: see · confidence high
See State v. Flanagan, 111 N.M. 93, 96-98 , 801 P.2d 675, 678-80 (Ct.App.1990).
discussed Cited "see" State v. Martinez (2×)
N.M. Ct. App. · 1996 · signal: see · confidence high
See State v. Flanagan, 111 N.M. 93, 98 , 801 P.2d 675, 680 (Ct.App.) (purpose of rule “is to apprise the trial court of the nature of the error and invoke an intelligent ruling on the issue”), cert. denied, 111 N.M. 77 , 801 P.2d 659 (1990). 13.
discussed Cited "see, e.g." People v. Koper
Colo. Ct. App. · 2018 · signal: see also · confidence medium
Thus, “were they lying” type questions are “categorically improper.” 15 Id. at 733 ; see also People v. Wittrein, 221 P.3d 1076, 1081 (Colo. 2009) (“In Colorado, neither lay nor expert witnesses may give opinion testimony that another witness was telling the truth on a specific occasion.” (citing CRE 608(a))). ¶ 32 Improper “were they lying” type questions include asking a testifying defendant whether another witness was “mistaken,” State v. Flanagan, 801 P.2d 675, 679 (N.M.
STATE of New Mexico, Plaintiff-Appellee,
v.
Jeffrey FLANAGAN, Defendant-Appellant
11247.
New Mexico Court of Appeals.
Oct 18, 1990.
801 P.2d 675
Hal Stratton, Atty. Gen., Charles H. Rennick, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee., Jacquelyn Robins, Chief Public Defender, Sheila Lewis, Asst. Appellate Defender, Santa Fe, for defendant-appellant.
Chavez, Minzner, Hartz.
Cited by 43 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 66%
Citer courts: New Mexico Court of Appeals (1)

OPINION

CHAVEZ, Judge.

Defendant appeals his conviction for homicide by vehicle. The docketing statement raised eight issues. Defendant has briefed five issues. Issues not briefed on appeal are deemed abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App. 1985). The following issues were raised on appeal: (1) whether the prosecutor impermissibly introduced evidence of insurance in violation of SCRA 1986, 11-411; (2) whether the trial court erred in allowing the prosecutor to cross-examine defendant with questions that seemingly required defendant to comment on the veracity of the state’s witnesses; (3) whether the prosecutor intentionally introduced evidence of defendant’s prior bad acts; (4) whether the prosecutor deprived defendant of a fair trial during closing argument; and (5) whether reversal is appropriate under a cumulative error argument. We affirm.

BACKGROUND

On August 18, 1987, defendant was driving his vehicle north on Fourth Street in Albuquerque, New Mexico. Prior to this time, he had replaced the engine in the vehicle. As he left the intersection of Claremont and Fourth Street, his vehicle rapidly accelerated and hit the left rear side of a pickup truck driven by Clyde Vigil. The pickup went out of control and rolled over several times. Mr. Vigil died four days later from the resulting injuries.

The state contends that defendant was reckless in the operation of his vehicle. Defendant alleged that, at the time of the accident, he was driving between 35-40 mph when he accelerated to pass another vehicle. The other vehicle also accelerated, so defendant took his foot off the gas pedal to allow the vehicle to pass. After doing so, his vehicle malfunctioned and continued to accelerate. At trial, it was uncontested that defendant’s vehicle gained speed as it travelled down Fourth Street. There was significant difference in the testimony of the state’s witnesses concerning the speed of defendant’s vehicle. The estimates ranged from 50 mph to 60-70 mph.

1. LIABILITY INSURANCE

Defendant first contends he was denied a fair trial when the prosecutor impermissibly introduced evidence of defendant’s status as an insured driver. He characterizes the prosecution’s conduct as the intentional interjection of improper evidence in violation of Rule 11-411, and argues that an admonition to the jury to disregard the evidence would have been ineffective to remove the prejudice, citing State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966).

Because this case arose out of an automobile accident, it is not unusual that it involved an investigation by an insurance company. See NMSA 1978, § 66-5-205 (Repl.Pamp.1989). Insurance was mentioned during the opening statement without objection and again during the examination of the first insurance witness. Defendant did not object to the mention of insurance until the very end of this witness’s testimony. His objection mainly concerned privilege. Defendant at that point moved for a mistrial based on the mention of insurance. Defendant did not ask to have the jury admonished that insurance was irrelevant to the issues on trial.

Motions for mistrial are directed to the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. State v. Simonson, 100 N.M. 297, 669 P.2d 1092 (1983). An abuse of discretion occurs when the ruling of the court is clearly against the logic and effect of the facts and circumstances or the reasonable, probable, and actual deductions to be drawn from the facts and circumstances. Id.

The general rule in New Mexico is that error in the admission of evidence is cured by striking the evidence and admonishing the jury to disregard it. Id. In a civil case, this court has previously held that the prejudicial effect of a reference to insurance during opening statements was cured by the prompt admonishment of the trial court. Chavez v. Chenoweth, 89 N.M. 423, 553 P.2d 703 (Ct.App.1976). Also in the context of civil cases, the trial court was held not to have abused its discretion in denying a motion for mistrial based on a witness’s unsolicited reference to insurance when the defendant did not ask to have the jury instructed that insurance had no bearing on the issue. Cardoza v. Town of Silver City, 96 N.M. 130, 628 P.2d 1126 (Ct.App.1981).

In civil cases, the mention of insurance is more prejudicial because it implies to the jury the availability of a “deep pocket." In criminal cases, however, particularly in light of the law requiring financial responsibility, § 66-5-205, the prejudice flowing from the mention of insurance is speculative at best. Because defendant did not ask for a prompt admonition, and because the possibility of prejudice was highly speculative, the trial court did not abuse its discretion in denying defendant’s motion for a mistrial.

2. COMMENTS ON VERACITY

Defendant contends that the trial court erred in allowing the prosecutor to cross-examine him with questions that required him to comment on the veracity of the state’s witnesses. This is a case in which a number of different witnesses to an automobile accident testified to different views of the. accident and the subsequent investigation. There were three potential areas of difference. First, defendant’s testimony appeared to differ from the testimony of the witness in the car behind him as to when the witness was behind him and when defendant accelerated. Second, defendant’s testimony appeared to differ from that of a police officer as to whether the officer inspected the accelerator. Third, defendant’s testimony appeared to differ from other witnesses as to how fast defendant was driving.

In her cross-examination of defendant, the prosecutor stated that one witness, Michael Johnson, testified that when he pulled onto Fourth Street that he was right behind defendant, adding “and you say that [testimony] was incorrect?” Second, the prosecutor stated that the policeman testified that he checked the accelerator, and then the prosecutor asked, “Are you saying that he did not do that?” And last, the prosecutor asked if the three eyewitnesses who testified “are all mistaken about the speed that you were going?” When the prosecutor started this line of questioning, the public defender objected that it was improper for a witness to comment on the testimony of another witness. The prosecutor argued that she was simply asking defendant to explain the discrepancies. The court allowed all three questions and overruled defendant’s objection to the line of questioning.

The prosecutor’s questions gave defendant an opportunity to suggest that his testimony was not inconsistent with that of the other witnesses. For example, the prosecutor’s questions concerning the accelerator allowed defendant to explain the difference between the gas pedal, which the police officer inspected, and the return spring and the throttle linkage, which defendant claimed were defective. The prosecutor’s questions concerning speed allowed defendant to explain that there was a difference between his speed as he turned the corner and his speed at the time of the accident.

In State v. Martinez, 34 N.M. 112, 278 P. 210 (1929), our supreme court held that asking one witness whether another witness was mistaken was improper questioning. The court affirmed the district court’s ruling that the following question was improper: “ ‘Now if Juan says that he ran clear across the bridge and met you about three steps on the other side of the bridge, and that right then the second shot was fired, Juan is mistaken, isn’t he?' ” Id. at 114, 278 P. at 211. The state argues that the subsequent adoption of the rules of evidence has abrogated the rule in Martinez. It points to SCRA 1986, 11-704, which permits opinion testimony, and to State v. Lopez, 84 N.M. 805, 508 P.2d 1292 (1973), where the supreme court rejected the objection that the evidence might invade the province of the jury.

One might question the continuing validity of the holding in Martinez, because the decision rested, at least in part, on the proposition that “[i]t is not proper to ask the opinion of one witness as to the credibility of another witness.” Id., 34 N.M. at 114, 278 P. at 211. Several decades after Martinez our supreme court adopted SCRA 1986, 11-608, which permits a witness to express an opinion as to the credibility of another witness (subject, of course, to the requirement that the witness expressing an opinion has a sufficient basis for the opinion). Nevertheless, the holding in Martinez remains sound, particularly when applied to cross-examination of a defendant in a criminal case. Asking a defendant if a witness for the state is “mistaken” too easily lends itself to abuse. Such questioning may amount to simply argument to the jury, in which the prosecutor improperly suggests that the only possible alternatives are that either the defendant or the witness is a liar. See Commonwealth v. Long, 17 Mass.App. 707, 462 N.E.2d 330 (1984).

Other jurisdictions support the proposition that questions that require a witness to comment on the veracity or credibility of the trial testimony of other witnesses, particularly law enforcement officers, may be improper. See, e.g., United States v. Richter, 826 F.2d 206 (2d Cir.1987); Commonwealth v. Ward, 15 Mass.App. 400, 446 N.E.2d 89 (1983). One rationale behind this rule is that it is the role of the jury to determine the credibility of witnesses. State v. Martinez; United States v. Richter; Commonwealth v. Ward. Whether the defendant believes the other witnesses were truthful or lying is simply irrelevant. See Commonwealth v. Ward; People v. Crossman, 69 A.D.2d 887, 415 N.Y.S.2d 470 (1979). In addition, such questions can constitute in effect a misleading argument to the jury that the only alternatives are that the defendant or the witnesses are liars. Commonwealth v. Long. Courts have held that even though a prosecutor does not expressly ask a defendant to characterize the state’s witnesses’ testimonies as true or false, it may nonetheless be error to tempt a defendant to do so. Commonwealth v. Long.

At the same time, however, we do not mean to suggest that it is improper for the prosecutor to engage in good-faith attempts (1) to clarify a defendant’s testimony on cross-examination by inquiring about apparent inconsistencies with testimony of another witness, or (2) to determine if the defendant (as in this case) has an explanation for apparent discrepancies between the testimony of the witness and the testimony of the defendant. In general, we will leave it to the discretion of the trial court as to whether cross-examination of the defendant has crossed the line into improper argument.

We will, however, impose a strict prohibition upon asking the defendant if another witness is “mistaken” or “lying.” This result may be required by Martinez itself. See Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973). Objection to such questions should be sustained. Any legitimate purpose in the question can be served by a rephrased question posing less of a risk of improper prejudice. The state argues that while questions which are aimed at eliciting a reponse regarding the veracity of another witness’s trial testimony are deemed improper, the prosecutor in this case was asking questions which went to the perception of the other witnesses. Questions asking whether another witness was mistaken do not necessarily evoke a response regarding the veracity of a witness. See Bass v. Washington Kinney Co., 119 Ill.App.3d 713, 75 Ill.Dec. 295, 457 N.E.2d 85 (1983). There is, however, a fine line between mistake and untruthfulness. In asking whether other witnesses were mistaken, the impression communicated to the jury may be that either the witness or the defendant is lying. Commonwealth v. Long. This is especially true in a criminal case where the defendant is forced to characterize numerous witnesses, including police officers, as “incorrect” or “mistaken” in order for his or her testimony to be credible.

Applying these principles to this case, it was within the trial court’s discretion to overrule or sustain the objections to the first two questions. The third question, however, was improper and the objection should have been sustained. Nevertheless, we hold the error to be harmless. The dangers that can arise from such a question did not materialize in this case. The prosecutor’s questions did not amount to a jury argument, and defendant was not being coaxed into accusing any other witnesses of lying. On the contrary, defendant provided an explanation for the critical discrepancies suggested by the prosecutor.

Under these circumstances, we are not persuaded that the improper question prejudiced defendant. In the absence of prejudice, error is not reversible. State v. Wright, 84 N.M. 3, 498 P.2d 695 (Ct.App. 1972); cf. People v. Montgomery, 103 A.D.2d 622, 481 N.Y.S.2d 532 (1984) (Per Curiam) (where prosecutor pursued cross-examination until defendant agreed each officer was lying, prosecutor’s conduct raised serious ethical concerns, but in view of evidence of guilt, harmless error analysis was appropriate).

3.PRIOR BAD ACTS

Defendant contends that reversible error was present because the prosecutor intentionally introduced evidence of his pri- or bad acts in the form of previous accidents. Although defendant did not object to the specific testimony about which he complains on appeal, he argues that the error was preserved because defendant had previously objected to evidence concerning his driving record and had asked for a continuing objection, which the judge did not grant. Instead, he expressed his uncertainty about the issue defendant was trying to raise, saying, “Wait a minute. Wait a minute. We are not in common focus here.” The last thing the judge said was, “Well, just take it one step at a time,” to which defense counsel responded, “All right.” In light of the court’s expression of uncertainty about the issue and the final specific instruction to take it one step at a time, we can only interpret the colloquy as denying the continuing objection and requiring defendant to make specific objections to each question he did not want answered.

This is in accordance with the general rule. In order to preserve an issue for appeal, defendant must make a timely, specific objection. State v. Lucero, 104 N.M. 587, 725 P.2d 266 (Ct.App.1986). The purpose of this requirement is to apprise the trial court of the nature of the error and invoke an intelligent ruling on the issue. State v. Lopez. Under the circumstances of this case, defendant’s objection during his own testimony was not sufficient to alert the trial court that there was an issue concerning erroneous admission of evidence during his father’s testimony. We do not believe that admission of the evidence constituted plain or fundamental error.

4. CLOSING ARGUMENT

Defendant contends that the prosecutor’s closing argument deprived him of a fair trial. The portion of the argument to which defendant now objects occurred during rebuttal. Defendant contends the prosecutor intentionally misled the jury in suggesting that defendant used the time before he was questioned by Officer Salas to think up a story about his accelerator sticking. Defendant argues that, in fact, defendant made the same statement to an officer earlier. However, there was no objection to this portion of the closing argument, and the record does not indicate the substance of the conversation between the first officer and defendant. In addition to the cases previously discussed concerning preservation of error, State v. Riggsbee, 85 N.M. 668, 515 P.2d 964 (1973) and State v. Carmona, 84 N.M. 119, 500 P.2d 204 (Ct.App.1972), indicate that this issue was not preserved. Further, the argument depends on facts not of record, and thus this court cannot review the issue. See State v. Martin, 101 N.M. 595, 686 P.2d 937 (1984).

5. CUMULATIVE ERROR

Anticipating our ruling on the preservation of his issues, defendant finally argues that this court can consider incidents that were not preserved below under a cumulative error argument. See State v. Vallejos, 86 N.M. 39, 519 P.2d 135 (Ct.App. 1974). We are not persuaded by this argument. The cases that have reversed convictions on this basis have generally involved much more egregious misconduct by prosecutors with overtones of bad faith. In Vallejos, the misconduct that formed the basis for reversal consisted of introducing inflammatory physical evidence not connected to the defendants, referring to the mugging of a senator that had nothing to do with the case, and arguing the prosecutor’s personal belief in defendant’s guilt. Similarly, in State v. Diaz, 100 N.M. 210, 668 P.2d 326 (Ct.App.1983), the prosecutor extensively referred to his authority as prosecutor; repeatedly referred to the defendant as a “yo yo,” stupid, a thief, and a crook; incorrectly stated the law concerning the defense of intoxication; and otherwise belittled the defense.

In this case, the alleged misconduct on the part of the prosecutor is not nearly as serious. Viewing the trial as a whole, we do not believe the record compels a finding that the prosecutor deliberately introduced evidence she knew or should have known was inadmissible, or otherwise abused her authority. We have considered the fact that one question the prosecutor asked on cross-examination was improper, but we conclude that, on balance, the doctrine of cumulative error is not applicable.

6. CONCLUSION

The judgment and sentence are affirmed.

IT IS SO ORDERED.

MINZNER and HARTZ, JJ., concur.