State v. Gutierrez

2012 NMCA 013, 1 N.M. Ct. App. 205
CourtNew Mexico Court of Appeals
DecidedJanuary 25, 2012
DocketNo. 33,296; Docket No. 29,997
StatusPublished

This text of 2012 NMCA 013 (State v. Gutierrez) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gutierrez, 2012 NMCA 013, 1 N.M. Ct. App. 205 (N.M. Ct. App. 2012).

Opinion

OPINION

GARCIA, Judge.

{1} Defendant Julian Gutierrez was granted a direct appeal and certification of the district court’s amended decision letter denying Defendant’s motion to dismiss. Defendant was indicted on three counts of criminal sexual contact of a minor, contrary to NMSA 1978, Section 30-9-13(B)(2)(a) (2003). Defendant raises three issues on appeal: (1) whether the district court erred in declaring a mistrial on the basis of manifest necessity, (2) whether prosecutorial misconduct bars retrial of Defendant, and (3) whether Defendant’s right to present a defense and due process rights require dismissal of all charges with prejudice. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

{2} A grand jury indicted Defendant on three counts of criminal sexual contact of a minor. Victim, Defendant’s then sixteen-year-old daughter, testified at the grand jury hearing. A few days before trial, on February 22, 2009, the prosecutor interviewed Victim at her school (the Interview). The merits of Defendant’s direct appeal rest on the contents of the Interview. The Interview lasted approximately one-half hour and included Victim, the prosecutor, a special investigator, and the victim’s advocate. Following the Interview, Victim fled the jurisdiction.

{3} During the Interview, the prosecutor explained that the purpose of the Interview was to prepare Victim for trial, make sure she received her subpoena, and confirm she would appear. The prosecutor asked Victim about her living arrangements. Victim said she was living with her grandmother next door to Defendant. Victim indicated that her grandparents had not spoken to her about testifying but that her grandmother told her she was going to get herself into a “whole bunch of trouble,” and her grandfather no longer wanted her to live there.

{4} The prosecutor wanted to go over the police report with Victim to make sure she still remembered the incidents. Victim recanted, said Defendant never touched her, and explained that her mother told her to lie to the grand jury. The prosecutor told Victim that she could be charged with perjury if she did not testify consistently with her prior statements. The prosecutor asked if she wanted to be faced with charges. The prosecutor and the victim’s advocate also stressed that they were there to help Victim. They explained that they were worried Victim’s family was threatening her and said they could find her another place to live. The special investigator asked Victim where her baby would go if she got into “trouble” and if she was willing to get into trouble and see her child sent to a home. Victim then said that her father had touched her, but they were playing a game. The special investigator told Victim she should tell the truth at trial, and if the truth was that she and Defendant were playing a game, that is what Victim should say. The prosecutor and special investigator stressed that Victim needed to tell the truth, but they made it clear that her grand jury testimony was that Defendant had touched her. The prosecutor and the special investigator commended Victim for remaining in school while raising a child and told her she should be proud. They also discussed driving Victim to the courthouse.

{5} Victim was not present the morning of trial. During an in-chambers hearing, defense counsel filed a written motion in open court to call the prosecutor as a witness or, in the alternative, to dismiss the charges. Defense counsel argued that the prosecution improperly threatened Victim during the Interview. The State responded that no one threatened Victim and that the State was concerned with reports that Defendant and his family, with whom Victim lived, were pressuring Victim. The State also moved for mistrial on the basis of Victim’s unavailability and asked the district court to issue a bench warrant for Victim’s failure to respond to her subpoena. The district court noted that with regard to intimidation, there was much “speculation as to what exactly occurred, if anything.” Similarly, the court explained that Victim fled the jurisdiction and, therefore, could not discuss why she fled. Before deciding whether a mistrial or dismissal was appropriate, the district court wanted to do more research and asked both parties for additional authority. The district court temporarily dismissed the jury but kept them impaneled. The prosecutor again asked for a bench warrant for Victim’s arrest due to her failure to appear pursuant to a subpoena.

{6} Approximately two weeks later, the district court granted the State’s motion for mistrial. Explaining that the present issue was only whether a mistrial was appropriate at that time, the court reserved ruling on Defendant’s motion to dismiss. The court found manifest necessity due to Victim’s unavailability and released the jury that had been impaneled for two weeks. To determine whether a mistrial was appropriate, the district court relied on the law and did not utilize the tape of the Interview. Defense counsel made a proffer at the mistrial hearing and asserted that the court should use the Interview to establish whether the prosecutor was coercing and threatening Victim.

{7} The district court held a separate hearing on Defendant’s motion to dismiss for prosecutorial misconduct. The special investigator and Victim both testified about the Interview. Victim said she felt “kind of scared” because the prosecutor and the special investigator told her they could take her son away if she failed to appear for court. Victim also explained that she fled because she was afraid the prosecutor would take her son. After reviewing the actual recording of the Interview and the parties’ briefs, the district court issued its amended decision letter denying Defendant’s motion for dismissal. The court found no prosecutorial misconduct and again said that there was manifest necessity for a mistrial. A direct appeal was then filed by Defendant.

II. DISCUSSION

{8} Defendant argues on appeal thatthere was no manifest necessity for mistrial, and double jeopardy bars retrial of the charges. U.S. Const, amend. V; N.M. Const, art. II, § 15. Defendant also argues that this Court should dismiss the charges with prejudice because the prosecutor’s conduct had an immediate and severely prejudicial impact on his rights to present a defense and violated due process.

A. PROPRIETY OF THE MISTRIAL

{9} When the district court declares a mistrial, double jeopardy precludes retrial unless the defendant consented to the mistrial, or manifest necessity compelled the mistrial. State v. Salazar, 1997-NMCA-088, ¶ 5, 124 N.M. 23, 946 P.2d 227. The district court ruled that manifest necessity compelled a mistrial in the present case. “A motion for a mistrial is addressed to the sound discretion of the trial court and is only reviewable for an abuse of discretion.” Id. ¶ 4 (internal quotation marks and citation omitted). “No mechanical rule exists for determining the existence of manifest necessity. The standard involves a careful weighing of [the] defendant’s right to have his trial completed and the public’s interest in a fair trial and just judgment.” State v. Messier, 101 N.M. 582, 584, 686 P.2d 272, 274 (Ct. App. 1984). “An appellate court should be wary of substituting its judgment for that of the trial court.” State v.Alberico, 116 N.M.

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Bluebook (online)
2012 NMCA 013, 1 N.M. Ct. App. 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gutierrez-nmctapp-2012.