The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23- 112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: ___________________ Filing Date: February 9, 2022
NO. S-1-SC-37558
STATE OF NEW MEXICO, Plaintiff-Respondent,
v.
HENRY HILDRETH JR., Defendant-Petitioner.
ORIGINAL PROCEEDING ON CERTIORARI Robert A. Aragon, District Judge
Bennett J. Baur, Chief Public Defender Caitlin C. M. Smith, Assistant Appellate Defender Santa Fe, NM
for Petitioner
Hector H. Balderas, Attorney General Emily C. Tyson-Jorgenson, Assistant Attorney General Santa Fe, NM
for Respondent OPINION
VIGIL, Chief Justice. {1} This case presents a question of first impression: whether judicial conduct at
trial may result in a bar to retrial under the double jeopardy clause of the New
Mexico Constitution, and if so, whether the district court judge’s conduct in this case
bars retrial. See N.M. Const. art. II, § 15 (prohibiting any person from being “twice
put in jeopardy for the same offense”). We hold that judicial conduct may result in
a bar to retrial under the New Mexico Constitution and that the judicial conduct in
this case bars Defendant’s retrial.
I. BACKGROUND
A. The District Court Proceedings
{2} A criminal complaint was filed in the district court on September 9, 2016,
charging Defendant Henry Hildreth, Jr., with felony aggravated battery against a
household member with great bodily harm, misdemeanor aggravated battery against
a household member without great bodily harm, and unlawful taking of a motor
vehicle. NMSA 1978, § 30-3-16(B), (C) (2008, amended 2018); NMSA 1978, § 30-
16D-1 (2009). At the arraignment the following month, Defendant was found to be
indigent, and Steven Seeger was appointed to represent him. Trial was set for March
14, 2017, on a trailing docket.
{3} The State belatedly filed its witness list on March 1, 2017, and eight days later,
on March 9, 2017, filed an amended witness list to correct an address. That same
2 day, nine days after the discovery deadline and five days before trial, the State
provided Defendant with a CD containing audio recordings of statements made by
the State’s witnesses and Defendant in interviews with the police.
{4} The day after receiving the CD, on Friday, March 10, 2017, Seeger filed a
motion to continue the jury trial. Seeger argued that he needed more time to review
the CD in order to adequately prepare for trial and that, without more time to prepare,
Defendant would be denied his right to effective assistance of counsel. That same
day, the parties appeared before the judge for a pretrial conference.
{5} At the pretrial conference, the judge denied the motion for continuance
without hearing any argument. From that point forward, Seeger remained
determined to get a continuance, and the judge remained committed to proceed with
trial as scheduled. Their intransigence forms the root of the issue in this case.
{6} In response to the judge’s denial of his motion to continue, Seeger told the
judge that he would not be ready for trial. He stated that he would “be present but
not participate.” The judge responded that “[i]f that is true, then [Defendant] would
have . . . excellent grounds for appeal on incompetency of counsel.” The judge told
Seeger that if he objected to the State’s untimely discovery, he could file a motion,
and it would be heard before trial. Seeger did just that.
{7} Seeger filed a motion for sanctions on March 13, 2017, the day before trial,
asking the judge to prevent any of the State’s identified witnesses from testifying. In
its written response, the State acknowledged that its discovery was late. With respect
3 to the CD, the State asserted that it was not within the State’s “control” until March
9, 2017, and it was made available to Seeger that same day. The State asserted that
sanctions were not appropriate, but if the judge was inclined to grant any sanctions,
the less punitive sanction of a continuance instead of preventing any of the State’s
witness from testifying was appropriate.
{8} At the motion hearing, held on March 14, 2017, the first day of the trial,
Seeger argued that due to the untimely discovery disclosures, the State should be
prohibited from calling any witnesses. With regard to the CD, Seeger asserted that
it might contain a “prior statement of [a] witness, and [that he had] not had an
opportunity to listen to it to see whether it ha[d] potential material for cross-
examination” or exculpatory information. In response to a question from the judge
regarding whether the State intended to actually use the CD during trial, the
prosecutor said, “it’s nothing that the State would have presented today.” The State
then again requested that if sanctions were imposed, the sanction be a continuance
rather than exclusion of its witnesses. The judge denied the motion and imposed no
sanctions. The trial then started.
{9} During the trial, Seeger refused to participate in voir dire, challenge any
jurors, examine any witnesses, or participate in the selection of jury instructions.
Seeger also declined to proffer an opening statement or a closing statement.
However, he made three motions for mistrial—all based on assertions of ineffective
4 assistance of counsel resulting from the State’s late disclosures, and, consequently,
his asserted inability to prepare for trial.
{10} Seeger first moved for a mistrial shortly after the jury was sworn in. The judge
immediately denied the motion and the trial proceeded. The State then called two of
its three witnesses before the lunch hour. These were the victim and an eyewitness
to the alleged aggravated battery. Seeger did not cross-examine either one.
{11} After the lunch break, Seeger again moved for a continuance or mistrial based
on the late discovery. Seeger told the judge that during lunch he reviewed the writing
on the CD and discovered that it contained statements from the two witnesses who
had testified that morning, another witness, and Defendant. Seeger argued that as a
result of the State’s late disclosures, he did not have a chance to listen to the CD or
get the statements on the CD “transcribed to use [for] potential cross-examination.”
Seeger noted that he did not know what exculpatory information or prior inconsistent
statements were on the CD and renewed his prior motion for a continuance or
mistrial.
{12} The State’s response was that the CD was handed over to Seeger on March 9,
2017, the day it was received at the district attorney’s office. In response to
questioning from the judge, however, the prosecutor confirmed that the police
officer who investigated the case was in possession of the CD before he turned it in
to the district attorney’s office. Moreover, in a subsequent filing the prosecutor
disclosed that the police officer’s report describing the interviews and confirming
5 that they were recorded was received by the district attorney’s office seven days after
the offense, on June 30, 2016.
{13} The judge then turned back to Seeger and asked why he had not reviewed the
CD in the intervening days between his receipt of it and the trial. Seeger answered
that on the following day, he was either in court or in the process of reviewing the
public defender cases of a contract attorney who had suddenly passed away so those
cases could be reassigned to new attorneys. On the weekend, he continued reviewing
the files and attended the viewing of his deceased colleague, and he had “no time”
to review the CD the following Monday, the day before the trial. The judge denied
the motions, concluding that there had been “no showing of prejudice to the court.”
Based on the prosecutor’s concession that the CD had been in a State agent’s
possession, the judge also admonished the prosecutor that “[t]here is no distinction
made between the agents of the State. The State is the State.”
{14} Despite Seeger’s efforts, the judge allowed trial to proceed. Before closing
arguments, Seeger again moved for mistrial. And again, the judge denied his motion.
The jury found Defendant guilty of felony aggravated battery against a household
member with great bodily harm, and Defendant appealed to the Court of Appeals.
B. The Court of Appeals’ Opinion
{15} In the Court of Appeals, “Defendant argue[d], and the State concede[d], that
Defendant was denied his constitutional right to assistance of counsel.” State v.
Hildreth, 2019-NMCA-047, ¶ 1, 448 P.3d 585. Defendant also argued that “the
6 district court judge’s conduct during trial should bar [Defendant’s] retrial on double
jeopardy grounds.” Id.
{16} The Court of Appeals concluded that Defendant was denied his constitutional
right to effective assistance of counsel and reversed Defendant’s conviction. Id. The
Court of Appeals reasoned that “Seeger’s conduct rose to the level of a constructive
denial of counsel sufficient to create a presumption of prejudice.” Id. ¶ 14.
{17} Turning to Defendant’s double jeopardy argument, the Court of Appeals
acknowledged that “Seeger’s adamant refusal to provide his client with a defense in
a felony trial and the district judge’s decision to proceed with such a trial in
circumstances where some form of guilty verdict was not only a near certainty, but
had no realistic chance of being upheld on appeal,” created an “unusual and
unseemly situation.” Id. ¶ 16. Nevertheless, the Court of Appeals rejected
Defendant’s argument that retrial was barred under the three-part test set forth in
State v. Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792. Hildreth, 2019-
NMCA-047, ¶¶ 17, 20. The Court of Appeals determined that Breit had “no bearing”
on the case and even if it did, “the district court judge . . . acted appropriately and
appeared impartial throughout the proceedings.” Id. ¶ 20. In analyzing whether the
Breit test would be satisfied if it did apply, the Court of Appeals focused on the
judge’s demeanor, his tone of voice, and his efforts “to avoid interrupting Seeger.”
Id. Based on this analysis, the Court of Appeals held that the judge’s conduct did not
7 bar retrial, reversed Defendant’s conviction based on ineffective assistance of
counsel, and remanded the case for retrial. Id. ¶¶ 15, 20, 21.
{18} Defendant petitioned this Court for a writ of certiorari to review the Court of
Appeals’ conclusion that Breit does not apply, and even if it does, the judge’s
conduct did not meet Breit’s criteria to bar retrial.
II. DISCUSSION
A. Standard of Review
{19} At issue in this case is whether judicial conduct may result in a bar to retrial
under the New Mexico Constitution. N.M. Const. art. II, § 15. “A double jeopardy
claim is a question of law that we review de novo.” State v. Bernal, 2006-NMSC-
050, ¶ 6, 140 N.M. 644, 146 P.3d 289.
B. Breit Applies to Judicial Conduct
{20} The State contends that because the facts of Breit concerned prosecutorial
misconduct, the Breit test was meant to be limited to prosecutors and does not apply
to judicial conduct. We disagree. The language of the Breit test itself and its history
support its application to judges.
{21} Breit directs that retrial is barred when (1) the “improper official conduct is
so unfairly prejudicial to the defendant that it cannot be cured by means short of a
mistrial or a motion for a new trial,” (2) “the official knows that the conduct is
improper and prejudicial,” and (3) “the official either intends to provoke a mistrial
or acts in willful disregard of the resulting mistrial, retrial, or reversal.” 1996-
8 NMSC-067, ¶ 32. This language is not on its face limited to prosecutorial conduct.
In fact, the reference to the “official” and “official misconduct” is certainly broad
enough to include judicial conduct. This was no accident.
{22} Both New Mexico and federal precedent influenced the language of the Breit
test. In State v. Day, although we held retrial was not barred under those facts, we
noted that double jeopardy barred retrial when “the prosecutor engaged in any
misconduct for the purpose of precipitating a motion for a mistrial, gaining a better
chance for conviction upon retrial, or subjecting the defendant to the harassment and
inconvenience of successive trials.” 1980-NMSC-032, ¶ 15, 94 N.M. 753, 617 P.2d
142, cert. denied, 449 U.S. 860 (1980). “This standard was an amalgam of various
pronouncements by the United States Supreme Court.” Breit, 1996-NMSC-067, ¶
26. For example, Day referred with approval to the standard in United States v.
Dinitz:
The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where bad-faith conduct by judge or prosecutor, threatens the harassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict the defendant.
424 U.S. 600, 611 (1976) (alteration, internal quotation marks, and citation omitted)
(emphasis added); Day, 1980-NMSC-032, ¶ 11. In fact, “[a]ll of the elements of the
rule adopted by Day were included in [the] double-jeopardy standard set forth
9 earlier” in Dinitz. Breit, 1996-NMSC-067, ¶ 26. Day also endorsed United States v.
Jorn, which provided, “where a defendant’s mistrial motion is necessitated by
judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution
might well be barred.” 400 U.S. 470, 485 n.12 (1971) (emphasis added); Day, 1980-
NMSC-032, ¶ 13.
{23} Following Day, the United States Supreme Court issued its opinion in Oregon
v. Kennedy, 456 U.S. 667, 679 (1982), which narrowed the federal double jeopardy
rule. See Breit, 1996-NMSC-067, ¶ 26 (“[T]he federal cases upon which we based
our double-jeopardy rule in Day were narrowly restricted by Kennedy to a rule based
upon prosecutorial intent.”). But in Breit, we rejected this narrow approach,
concluding that “when this Court derives an interpretation of New Mexico law from
a federal opinion, our decision remains the law of New Mexico even if federal
doctrine should later change.” 1996-NMSC-067, ¶¶ 26, 27. Instead, we adopted a
test that was “implicit in Day.” Id. ¶ 32. We utilized a “‘willful disregard’” standard
that “encompass[ed] and augment[ed] the circumstances implicated by the rule in
Day.” Id. ¶ 36. One such circumstance was judicial impropriety. See id. ¶ 26.
Because of this, we used the language “improper official conduct,” id. ¶ 32
(emphasis added), rather than “prosecutorial misconduct,” as used in Day to
accurately capture the scope of the double jeopardy bar. Day, 1980-NMSC-032, ¶¶
2, 5.
10 {24} Thus, based on the language of Breit itself and the history behind its adoption,
we conclude that Breit applies to judicial conduct.
C. The Judge’s Conduct Satisfies the Breit Test
{25} Having determined that Breit applies to judges, we turn to whether the judge’s
conduct in this case satisfies the three prongs of the Breit test. We review each prong
in turn.
1. The first Breit prong
{26} Under this prong, we are required to determine if the judge’s conduct was “so
unfairly prejudicial to [Defendant] that it [could not] be cured by means short of a
mistrial or a motion for a new trial.” Breit, 1996-NMSC-067, ¶ 32.
{27} In its analysis, the Court of Appeals focused on the tone and demeanor of the
judge before the jury to conclude that the judge’s conduct was not improper.
Hildreth, 2019-NMCA-047, ¶ 20. The Court of Appeals “listened to the entire audio
recording of the trial,” focusing on the “judge’s tone of voice” which “sounded”
appropriate and proper. Id. The Court of Appeals noted that “[t]he judge did not raise
his voice, . . . kept his commentary on Seeger’s actions to a minimum in front of the
jury[, and] . . . repeatedly gave Seeger the opportunity to change course and actively
participate in the trial proceedings.” Id. The Court of Appeals determined that
because the judge did not sound dismissive or biased, the judge’s conduct was not
improper. Id. This is where the Court of Appeals erred in its analysis.
11 {28} While the tone and content of remarks may be considered when determining
whether an official’s conduct was improper, see Breit, 1996-NMSC-067, ¶¶ 41-44,
these considerations are not dispositive. Rather, we must “carefully examine the
[official’s] conduct in light of the totality of the circumstances of the trial,” id. ¶ 40,
and assess “the effect” the official’s conduct had on the defendant. State v.
McClaugherty, 2008-NMSC-044, ¶ 26, 144 N.M. 483, 188 P.3d 1234.
{29} Looking to the totality of the circumstances of the trial, we repeat that this was
a battle between Seeger and the judge over whether a continuance was warranted or
trial should proceed as scheduled. The denial of Seeger’s repeated requests for a
continuance resulted in repeated motions for a mistrial. These procedural maneuvers
between Seeger and the judge deprived Defendant of his constitutional right to the
effective assistance of counsel, prompting us to consider the circumstances under
which the denial of a continuance is an abuse of discretion because it causes undue
prejudice to a defendant.
{30} In State v. Salazar, we concluded that “our case law requires the trial court to
consider the Torres factors initially in evaluating a motion for a continuance.” State
v. Salazar, 2007-NMSC-004, ¶ 27, 141 N.M. 148, 152 P.3d 135 (citing State v.
Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20). As reiterated by the Salazar
Court, the Torres factors include:
the length of the requested delay, the likelihood that a delay would accomplish the movant’s objectives, the existence of previous
12 continuances in the same matter, the degree of inconvenience to the parties and to the court, legitimacy in motives in requesting the continuance, fault of the movant in causing a need for delay, and the prejudice to the movant in denying that motion.
Salazar, 2007-NMSC-004, ¶ 14 (citing Torres, 1999-NMSC-010, ¶ 10). “In addition
to meeting the Torres factors, [the d]efendant must show that the denial of the
continuance prejudiced him.” Salazar, 2007-NMSC-004, ¶ 16.
{31} In Salazar, we noted the prejudice to the defendant by the late discovery of a
videotape and the effect it had on defense counsel’s cross-examination of a witness.
Id. ¶¶ 7, 23. We determined “that the trial court abused its discretion in denying [the
d]efendant’s motion” for a continuance because “[t]here had been no previous
continuances, . . . the State did not oppose [the] continuance,” and “[the d]efendant
was not at fault for causing the delay.” Id. ¶¶ 1, 21. We concluded by stating that “if
the motion for a continuance depends on a claim that, absent a continuance, the
defendant will have been or will be denied effective assistance of counsel, Brazeal
offers guidance on how that claim should be analyzed,” but “that standard should
play a subsequent, even subsidiary role to the Torres factors and analysis.” Id. ¶¶ 27-
28 (citing State v. Brazeal, 1990-NMCA-010, ¶ 15, 109 N.M. 752, 790 P.2d 1033).
{32} In Brazeal, our Court of Appeals set forth a two-prong analysis to determine
whether the denial of the continuance amounts to ineffective assistance of counsel.
1990-NMCA-010, ¶ 15. The first consideration is whether “a per se violation of [the]
defendant’s constitutional rights” has occurred—“in other words, whether we can
13 presume . . . that [the] defendant suffered from ineffective assistance of counsel
because of the denial of a continuance.” Id. The second consideration is the
defendant’s specific claims of ineffective assistance of counsel. Id. The
circumstances in which prejudice to the defendant can be presumed include: “(1)
denial of counsel altogether; (2) defense counsel’s failure ‘to subject the
prosecution’s case to meaningful adversarial testing’; and (3) when the accused is
‘denied the right of effective cross-examination.’” State v. Grogan, 2007-NMSC-
039, ¶ 12, 142 N.M. 107, 163 P.3d 494 (quoting United States v. Cronic, 466 U.S.
648, 659 (1984)).
{33} With this background in mind, we begin with the judge’s denial of Seeger’s
first motion for a continuance. Although there had been no previous continuances,
we cannot say that the judge’s conduct was improper in denying this motion. To be
sure, the State provided late discovery of the CD, but in looking to the Torres factors,
as mandated by Salazar, the degree of inconvenience to the parties, legitimacy of
motives, and prejudice to Defendant were unknown at this time. Salazar, 2007-
NMSC-004, ¶¶ 27-28. Seeger’s comment that he would “not participate” at trial does
not change this determination. The judge could not know whether Seeger would
remain true to his word, as evinced by the judge’s response, “[i]f that is true, then
[Defendant] would have . . . excellent grounds for appeal.” (Emphasis added.)
{34} At the motion hearing the morning of the trial, Seeger argued for sanctions
because of the late discovery. Again, he argued that the CD might contain prior
14 statements of a witness and that he had not had an opportunity to review it for
exculpatory material. Apparently acting on the State’s assurance that the CD was
“nothing that the State would have presented today,” the judge denied the motion
for sanctions. Again, there was no abuse of discretion and the trial commenced.
{35} At trial, the judge watched as Seeger refused to participate in voir dire, juror
challenges, opening statement, and witness examination. After the jury was sworn
and Seeger made his first motion for mistrial, the judge asked Seeger to confirm
“that [Seeger was] not going to defend this man,” to which Seeger replied,
“[c]orrect.” The trial continued and the State called two of its three witnesses. Seeger
did not cross-examine either witness.
{36} By this time Seeger’s voluntary posture of determined inaction precluded any
“meaningful adversarial testing” and denied Defendant “the right of effective cross-
examination.” Grogan, 2007-NMSC-039, ¶ 12 (internal quotation marks and
citation omitted). Thus, “Seeger’s conduct rose to the level of a constructive denial
of counsel sufficient to create a presumption of prejudice.” Hildreth, 2019-NMCA-
047, ¶ 14. By now, it was clear that Defendant was being denied his right to effective
assistance of counsel, but that is not the question before us. The question is whether
the judge’s conduct was “so prejudicial as to cause a mistrial or new trial.” Breit,
1996-NMSC-067, ¶ 33.
{37} After lunch, Seeger renewed the motions for mistrial or continuance. At this
moment in the trial, the judge’s conduct became “so unfairly prejudicial to
15 [Defendant] that it [could not] be cured by means short of a mistrial or a motion for
a new trial.” Breit, 1996-NMSC-067, ¶ 32. This time, Seeger told the judge what
was on the CD: statements from Defendant and the State’s two witnesses who
testified that morning. At this time, the judge knew that there was no meaningful
adversarial testing of the State’s case, that Defendant was denied his right to
effective cross-examination, that the State misled the court by declaring that it would
not use the CD but then calling two witnesses whose prior statements were on the
CD, and that Seeger had no role in the State’s failure to provide the CD less than a
week prior to trial. The judge’s denial of a continuance under these circumstances
was unfairly prejudicial to Defendant.
{38} These facts are similar to those in Salazar—there had been no previous
continuances, the defense was not at fault for causing the delay, and the late
discovery provided by the State prejudiced defense counsel’s cross-examination of
witnesses—but here we also have a headstrong attorney refusing to participate in a
criminal trial. Salazar, 2007-NMSC-004, ¶¶ 7, 21-23. Yet, despite the Torres factors
weighing in favor of granting a continuance and allowing Defendant to develop a
defense, the judge—equally obstinate—remained resolute in maintaining the trial
docket. It was at this point in the trial that the judge had an affirmative obligation to
do something: grant a continuance, declare a mistrial, or impose sanctions. However,
the judge failed to undertake any measures to protect the constitutional rights of
Defendant and the integrity of the court. See Grogan, 2007-NMSC-039, ¶ 10 (“[I]n
16 cases of obvious ineffective assistance of counsel, the trial judge has the duty to
maintain the integrity of the court, and thus inquire into the representation.”); see
also Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (“The constitutional right of an
accused to be represented by counsel invokes, of itself, the protection of a trial
court.”).
{39} Returning to Breit, the judge’s decision to allow the trial to proceed in light
of the facts before him was conduct so unfairly prejudicial to Defendant that it could
not be cured short of a mistrial or new trial. We conclude that the first prong of the
Breit analysis is satisfied.
{40} Before turning to the second Breit prong, we take this opportunity to note that
our determination that the judge’s conduct was improper and unfairly prejudicial to
Defendant should in no way be construed as a validation of Seeger’s actions. See
Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[A] counsel’s function, as
elaborated in prevailing professional norms, is to make the adversarial testing
process work in the particular case.”), superseded on other grounds by statute,
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214; see also Martin v. Rose, 744 F.2d 1245, 1250-52 (6th Cir. 1984)
(concluding that defense counsel’s decision to “abandon all attempts to defend his
client at trial” was a “bizarre and irresponsible stratagem” that amounted to
constitutional error). “[A]ttorneys in New Mexico are not empowered with
decisional autonomy regarding when trials commence and when they do not
17 commence. District courts are.” Hildreth, 2019-NMCA-047, ¶ 16. Seeger had an
obligation to preserve the record with a focus on the specific facts in support of a
continuance and to demonstrate how the denial of the continuance was prejudicial
to Defendant, while not abdicating his role as Defendant’s attorney. See Salazar,
2007-NMSC-004, ¶¶ 15-16 (factors to be considered when “evaluating a trial court
decision granting or denying a motion for continuance”).
{41} That said, we echo the guidance offered to our district courts by the Court of
Appeals as to how to respond when an attorney is threatening to withdraw from
participation in a criminal trial. “[T]he district court can order new counsel to
represent the defendant,” it can “impose a sanction on the culpable attorney while at
the same time granting a continuance,” or, should “the attorney still refuse[] to
participate in the face of a clear order to do so, the court can invoke its contempt
powers against the obstructionist attorney.” Hildreth, 2019-NMCA-047, ¶ 16.
Additionally, the court could “question the defendant to determine whether he [or
she] understands the implications and consequences of the attorney’s proposed tactic
and agrees to waive his [or her] right to effective assistance of counsel at trial.”
Martin, 744 F.2d at 1251-52; see State v. Chapman, 1986-NMSC-037, ¶ 10, 104
N.M. 324, 721 P.2d 392 (“[T]he trial court must determine if a defendant is making
a knowing and intelligent waiver of counsel and fully understands the dangers of
self-representation.”).
18 2. The second Breit prong
{42} The second prong of the Breit test focuses on the effect of the official’s
conduct on the defendant, “regardless of the [official’s] intent,” to determine
whether the official knows that its conduct is improper. McClaugherty, 2008-
NMSC-044, ¶ 26. As we stated in McClaugherty, “[w]e cannot overemphasize or
overstate that this is an objective standard, not a subjective one: the belief of the
[official] regarding his or her own conduct is irrelevant in this analysis.” Id. ¶ 27.
“[T]here must be a point at which lawyers [and judges] are conclusively presumed
to know what is proper and what is not.” Id. ¶ 49 (first alteration in original) (internal
quotation marks and citation omitted). Or said another way, “Breit’s knowledge test
[is] satisfied by presuming knowledge on the part of” the official if the rule is of the
kind “that every legal professional, no matter how inexperienced, is charged with
knowing.” Id. ¶¶ 49-50 (internal quotation marks and citation omitted). Under this
standard, the law presumes that the judge here knew “that [counsel’s] conduct [was]
improper and prejudicial.” Breit, 1996-NMSC-067, ¶ 32.
{43} We again focus on the motion for mistrial or continuance following the lunch
break. By this time, Seeger’s inaction had created a “presumption of prejudice”
against Defendant because there had been no meaningful adversarial testing of the
prosecution’s case or effective cross-examination. Hildreth, 2019-NMCA-047, ¶ 14.
The concept that there is a “presumption of prejudice” to a defendant in such
circumstances is not new to New Mexico. See Grogan, 2007-NMSC-039, ¶ 12
19 (including lack of meaningful adversarial testing of the prosecution’s case and
effective cross-examination as circumstances under which there is a presumption of
prejudice to a defendant (citing Cronic, 466 U.S. at 659 (internal quotation marks
and citation omitted))). Further, this is no subtle point of law—effective assistance
of counsel requires more than an attorney simply being present at trial. See Cronic,
466 U.S. at 659 (“[I]f counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing, then . . . the adversary process itself [is]
presumptively unreliable.”). Given the judge’s knowledge of Seeger’s inaction,
coupled with the new information relayed to the judge that the CD contained
statements from the State’s two witnesses who had testified the morning of the trial
as well as Defendant and our case law regarding when prejudice is presumed and
when it is an abuse of discretion to deny a continuance, we know of no calculus by
which to justify the judge’s refusal to grant a continuance, mistrial, or sanctions—
let alone allow the trial to proceed to its end.
{44} We conclude that the law clearly presumes that the judge knew it would be
improper to proceed with trial under the circumstances. The second prong of Breit
is met.
3. The third Breit prong
{45} We conclude that the judge acted “in willful disregard of the resulting mistrial,
retrial, or reversal” by allowing the trial to proceed under the circumstances. Breit,
1996-NMSC-067, ¶ 32. When analyzing the third prong of Breit, the appellate court
20 “will carefully examine the [official’s] conduct in light of the totality of the
circumstances of the trial,” and determine whether the conduct amounts to “willful
disregard of the resulting mistrial, retrial, or reversal.” Id. ¶ 40. In Breit, we defined
“willful disregard” as “a conscious and purposeful decision by the [official] to
dismiss any concern that his or her conduct may lead to a mistrial or reversal,” while
“emphasizing that the [official] is actually aware, or is presumed to be aware, of the
potential consequences of his or her actions.” Id. ¶ 34 (internal quotation marks
omitted).
{46} The State argues that the judge did not act in willful disregard of a possible
reversal because he gave Seeger every opportunity to participate. The State contends
that even if the judge knew of Seeger’s intention to not participate at trial, he could
not take Seeger’s “threat to violate his client’s constitutional rights at face value.”
The State asserts that after witnessing Seeger refuse to participate in jury selection,
the judge “could have reasonably assumed that, once trial began in earnest, Seeger
would fulfill his duty to represent Defendant.” We are not persuaded.
{47} The totality of the trial demonstrates that the judge made a “conscious and
purposeful decision” to proceed with trial despite any concern that his conduct may
result in reversal. Breit, 1996-NMSC-067, ¶ 34. The State’s argument that the judge
did not know whether Seeger would represent his client “once trial began in earnest,”
neglects the fact that the judge had witnessed Seeger fail to participate in voir dire,
21 juror challenges, opening statement, and witness examination by the time Seeger
made his second motion for mistrial.
{48} Additionally, the judge acknowledged the likelihood of a reversal on appeal
when he stated that Defendant “would have . . . excellent grounds for appeal on
incompetency of counsel,” if Seeger did not participate. And after lunch, it became
clear that it was not just that Defendant had been denied effective assistance of
counsel, but that Defendant had also been prejudiced by the State’s late disclosures.
The judge is presumed to be aware that by continuing with a trial where Defendant
was not represented and where Defendant was prejudiced by the State’s late
disclosures, the result “may lead to a mistrial or reversal.” Breit, 1996-NMSC-067,
¶ 34. Again, this is no “subtle point of law, and one we can presume any . . . attorney
[or judge] to know.” McClaugherty, 2008-NMSC-044, ¶ 65 (internal quotation
marks and citation omitted).
{49} Accordingly, we conclude that under the narrow facts of this case, the judge
acted in willful disregard of the resulting reversal thus satisfying the third prong of
Breit. Retrial is barred.
III. CONCLUSION
{50} We affirm the Court of Appeals’ reversal of Defendant’s conviction, reverse
the Court of Appeals’ determination and application of Breit, and remand to the
district court for further proceedings in accordance with this opinion.
{51} IT IS SO ORDERED.
22 MICHAEL E. VIGIL, Chief Justice
WE CONCUR:
C. SHANNON BACON, Justice
DAVID K. THOMSON, Justice
JULIE J. VARGAS, Justice