1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: February 27, 2019
4 No. A-1-CA-36833
5 STATE OF NEW MEXICO,
6 Plaintiff-Appellee,
7 v.
8 HENRY HILDRETH JR.,
9 Defendant-Appellant.
10 APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY 11 Robert A. Aragon, District Judge
12 Hector H. Balderas, Attorney General 13 Emily C. Tyson-Jorgenson, Assistant Attorney General 14 Santa Fe, NM
15 for Appellee
16 Bennett J. Baur, Chief Public Defender 17 Caitlin C.M. Smith, Assistant Appellate Defender 18 Santa Fe, NM
19 for Appellant 1 OPINION
2 VANZI, Judge.
3 {1} Defendant Henry Hildreth Jr. appeals his misdemeanor and felony
4 convictions for aggravated battery against a household member following a jury
5 trial in which his attorney refused to participate. Defendant raises several
6 arguments. First, Defendant argues, and the State concedes, that Defendant was
7 denied his constitutional right to assistance of counsel. Second, Defendant argues
8 the district court judge’s conduct during trial should bar his retrial on double
9 jeopardy grounds. Third, Defendant argues the district court abused its discretion
10 in not granting his motions for a continuance and mistrial. Lastly, Defendant
11 claims the amended judgment convicting him of two counts of aggravated battery
12 against a household member based on a single incident constitutes double
13 jeopardy. We agree that the absence of effective representation deprived Defendant
14 of a fair trial and mandates reversal of his convictions. We disagree that the district
15 judge’s conduct bars retrial, and thus remand for retrial. In light of our rulings on
16 these issues, Defendant’s remaining arguments are moot.
17 BACKGROUND
18 {2} The parties do not dispute the following facts. Defendant was charged in
19 2016 with misdemeanor aggravated battery against a household member without
20 great bodily harm, NMSA 1978, § 30-3-16(B) (2008, amended 2018) (Count 1), 1 unlawful taking of a motor vehicle, NMSA 1978, § 30-16D-1 (2009) (Count 2),
2 and felony aggravated battery against a household member with great bodily harm
3 (Count 3). Section 30-3-16(C). On July 11, 2016, Steven Seeger (Seeger) entered
4 his appearance as defense counsel for Defendant. Seeger appeared with Defendant
5 at his arraignment on October 21, 2016. Three days later, the district court entered
6 a notice of hearing scheduling Defendant’s case for a three-day jury trial starting
7 March 14, 2017.
8 {3} On Friday, March 10, 2017, Seeger filed a motion on behalf of Defendant
9 seeking a continuance of the jury trial on the basis that, among other things, the
10 State had filed its disclosures and witness list late. Specifically, the State had
11 provided discovery the previous day in the form of a CD that Seeger had not yet
12 had the chance to review. Defendant, who by then had not disclosed his own trial
13 witnesses, stated that to “force [Seeger] to go to trial on March 14, 2017 would
14 deny the Defendant effective assistance of counsel and thereby deny him his
15 [Sixth] Amendment [right] to counsel.” The parties appeared before the district
16 court judge on the morning of March 10, 2017 for a pretrial conference, at which
17 time the judge denied the motion for continuance. Seeger responded to the ruling
18 by informing the court: “I will not be ready, your honor. I will not participate in the
19 trial. I will be present but [I will] not participate.” The judge said, “If that is true,
20 then [Defendant] would have excellent grounds for appeal on incompetency of
2 1 counsel,” to which Seeger responded, “Absolutely. I will not participate.” After the
2 judge pointed out that the trial date had been set for months and that Seeger had
3 ample notice, the following exchange took place:
4 Judge: Well, Mr. Seeger, I’ve known you for years. I know you are an 5 extremely competent and diligent attorney and it is precisely because 6 of the potential arisal [sic] of contingencies such as you have just 7 described that notice of trial in these cases [is] sent out far in advance 8 of the date. My schedule cannot accommodate this case being placed 9 number one on next month’s docket. It’s very simple.
10 Seeger: I’m not gonna do a C-minus job on the trial on Tuesday.
11 Judge: Well, then I guess you’ll have to do an F-minus job and just sit 12 there. I don’t know—I can’t tell you how to run your business, Mr. 13 Seeger.
14 Seeger: That’s my plan.
15 Judge: Well, that’s not a good plan.
16 The district court suggested that Seeger raise any discovery issues by filing
17 motions in limine before trial.
18 {4} On the morning of trial, Seeger renewed Defendant’s motion to continue as
19 well as a motion for sanctions based on the State’s late disclosures, which Seeger
20 had filed the day before. Seeger explained that he did not have time to listen to the
21 CD because he spent the weekend attending the wake of a co-worker and
22 facilitating the reassignment of his co-worker’s cases to other attorneys. The Stated
23 responded that it did not come into possession of the CD until March 9, 2017, and
24 stated for the first time that it did not intend to use any of the information on the 3 1 CD at trial. Additionally, the State pointed out that its amended March 9, 2017
2 witness list did not include any previously undisclosed witnesses. The judge denied
3 Defendant’s motions to continue and for sanctions, telling Seeger, despite Seeger
4 himself having no role in the State’s decision to provide a CD less than a week
5 prior to trial that had been set months before, that if Seeger felt he was being
6 “deprived of information, [he] should have filed the motion long before this” and
7 that there was no showing of prejudice based on the late disclosures. In response,
8 Seeger reiterated that he was not going to participate in the trial, and as the trial
9 record demonstrates, he remained steadfast in that decision. Indeed, our review of
10 the record confirms that Seeger played the most marginal of roles at trial: he did
11 not participate in jury selection, give a substantive opening statement, cross-
12 examine any of the State’s witnesses, call any witnesses on behalf of Defendant,
13 move for a directed verdict, meaningfully participate in the submission of jury
14 instructions, or give a closing argument. As the following summary reflects,
15 Seeger’s active involvement during trial was limited and narrowly confined.
16 {5} Seeger did not ask the venire any questions and replied “No comment” each
17 time the judge asked for his position on striking a potential juror. After the jury
18 was sworn, Seeger moved for a mistrial, arguing that Defendant had been denied
19 effective assistance of counsel. The district court denied the motion, stating, “He
20 has not been denied effective assistance of counsel. He has been . . . refused any
4 1 assistance of counsel. There’s a world of difference there.” The judge asked Seeger
2 to confirm “that you are not going to defend this man?” Seeger answered, “Correct.
3 I am not going to participate because I cannot provide effective assistance of
4 counsel.” The trial continued and after the State’s opening statement, the judge
5 turned to Seeger and said, “I ask you to remember, as an officer of the court,
6 opening statement is reserved to evidence that is going to be presented.” After
7 Seeger responded, “I don’t know what you mean,” the judge explained, “I mean
8 the weight of your heart at the moment is of no consequence whatsoever to the
9 duty the jury is intended to perform today.” Despite the court’s admonition, Seeger
10 focused his opening statement not on the anticipated evidence, but on the Sixth
11 Amendment of the United States Constitution and his client’s right to counsel. The
12 judge told Seeger that his opening statement was improper and that he would not
13 allow him to proceed. Seeger responded, “I have nothing further then.” The judge
14 instructed the jury to ignore the “civics lesson that was presumptuously offered by
15 Mr. Seeger.”
16 {6} The State proceeded to call two of its three witnesses during the morning
17 session. Seeger made no objections during the witnesses’ direct examinations and
18 conducted no cross-examinations. After the lunch break, Seeger renewed his
19 motion for a mistrial. He argued that he had looked at the State’s late-disclosed CD
20 and saw that it contained statements from three witnesses—including the two that
5 1 had testified that morning—and Defendant. Seeger stated that he did not have time
2 to listen to the CD or have it transcribed for use in cross-examination and voiced a
3 concern that it might contain information useful to his client’s defense. Although
4 the State admitted the CD had been in the possession of an agent of the State
5 before March 9, 2017, the district court nevertheless denied the mistrial motion
6 because it did not believe that Defendant had demonstrated prejudice.
7 {7} The State called one additional witness. During that witness’s testimony,
8 Seeger made a single objection to the admission of an item of physical evidence,
9 which the district court sustained. Seeger made no other objections and conducted
10 no cross-examination of the witness. At the close of the State’s case, Seeger told
11 the court that he had hoped to call four or five witnesses but that he had neither
12 disclosed nor subpoenaed them. Seeger did not move for a directed verdict or make
13 any other motions. Before releasing the jury for the day, the court informed the
14 jury that the State had the burden of proof; that Defendant was not required to put
15 on any witnesses of his own; and that Defendant would not be calling any
16 witnesses.
17 {8} During the discussion about jury instructions, Seeger stated he had not
18 prepared any instructions and proceeded to express concern about the judge’s bias
19 in the case. The judge responded, “I cannot help that Mr. Seeger. You seem to be
20 troubled by a number of things, namely your obligation to abide by your oath and
6 1 defend the people that you take as clients.” The judge stated that he resented the
2 accusation of bias and encouraged Seeger to report him to the New Mexico
3 Judicial Standards Commission if he believed he (the judge) was biased. At that
4 point, Seeger indicated that he would not oppose any of the instructions tendered
5 by the State. The discussion on jury instructions continued and Seeger asked about
6 a step-down instruction. The court noted that the charge of misdemeanor
7 aggravated battery on a household member without great bodily harm, § 30-3-
8 16(B) was a lesser included offense of the felony charge of aggravated battery on a
9 household member with great bodily harm, § 30-3-16(C). As a result, the district
10 court ruled that the misdemeanor charge would be given as a step-down instruction
11 rather than a separate count. Besides inquiring about the step-down instruction,
12 Seeger did not participate in the discussion over jury instructions.
13 {9} The next morning, Seeger again renewed his motion for a mistrial on the
14 basis of ineffective assistance of counsel. The district court again denied the
15 motion. Before closing arguments, the court reminded the jury, “Defendant has
16 chosen not to present a case, and that is his right. . . . Whether or not [Defendant]
17 presents any evidence, the burden always remains on the State[.]” The court also
18 informed the jury that it was optional for the parties to present closing arguments.
19 During the State’s closing, Seeger objected once, claiming that the prosecutor was
20 expressing his personal opinion on the evidence. Seeger asked for a curative
7 1 instruction, which the court gave after sustaining the objection. When the State
2 completed its closing argument, the court asked Seeger if he wanted to “exercise
3 the opportunity to argue the evidence that has been presented.” Seeger stood up
4 and began, “I think, given the circumstances, I could not provide effective
5 assistance . . .” at which point the judge stopped him saying, “Alright, that is not
6 evidence, Mr. Seeger. If you don’t intend to argue the evidence, please return to
7 your seat.” The court then released the jury for deliberations.
8 {10} The jury acquitted Defendant of unlawful taking of a motor vehicle but
9 found him guilty of aggravated battery against a household member with great
10 bodily harm. See § 30-3-16(C). Although Seeger did participate in the sentencing
11 hearing, he provided no response concerning his position on the order for a pre-
12 sentence report. Defendant was ultimately sentenced to the maximum term of three
13 years in prison, followed by two years of parole. NMSA 1978, § 31-18-15(A)(11)
14 (2016). Seeger did not respond to the request for approval of the judgment and
15 order of commitment, despite having the proposed document provided to him both
16 in person and by email. Seeger timely filed a notice of appeal on Defendant’s
17 behalf on October 18, 2017. On November 3, 2017, and despite its earlier ruling
18 that the misdemeanor aggravated battery offense was a lesser included offense the
19 district court entered an amended judgment, adding a conviction for aggravated
20 battery against a household member with no great bodily harm “as charged in
8 1 Count 1 of the Criminal Information . . . incorporated into Count 3 by the Court.”
2 Seeger approved the amended judgment and sentence without objection.
DISCUSSION
3 {11} As relevant to our disposition of this appeal, Defendant argues that he was
4 denied his constitutional right to assistance of counsel and that the district judge’s
5 conduct during trial should bar his retrial. We address each argument in turn.
6 Defendant Did Not Receive Effective Assistance of Counsel
7 {12} As we have noted, the State concedes that Defendant was denied his right to
8 assistance of counsel, and that reversal and remand for a new trial is warranted.
9 Although we are not bound by the State’s concession, we conclude that under the
10 circumstance of this case, Defendant’s convictions must be reversed. See State v.
11 Guerra, 2012-NMSC-027, ¶ 9, 284 P.3d 1076 (stating that an appellate court is not
12 bound by the state’s concession of an issue). Our review is de novo. See State v.
13 Mosley, 2014-NMCA-094, ¶ 18, 335 P.3d 244 (stating that ineffective assistance of
14 counsel claims are reviewed de novo).
15 {13} Generally, an ineffective assistance of counsel claim is established when a
16 defendant shows “error by counsel and prejudice resulting from the error.” State v.
17 Grogan, 2007-NMSC-039, ¶ 11, 142 N.M. 107, 163 P.3d 494. Error is shown if
18 the “attorney’s conduct fell below that of a reasonably competent attorney.” Id.
19 (internal quotation marks and citation omitted). While it is usually a defendant’s
9 1 burden to show both incompetence and prejudice, id., a defendant need not
2 establish prejudice in those cases where “circumstances that are so likely to
3 prejudice the accused that the cost of litigating their effect in a particular case is
4 unjustified.” Id. ¶ 12 (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)).
5 Those circumstances in which prejudice to the defendant can be presumed include:
6 “(1) denial of counsel altogether; (2) defense counsel’s failure ‘to subject the
7 prosecution’s case to meaningful adversarial testing’; and (3) when the accused is
8 ‘denied the right of effective cross-examination.’ ” Id. ¶ 12 (citing Cronic, 466
9 U.S. at 659).
10 {14} Prior to the start of trial in this case, Seeger announced his intention to not
11 participate in the trial proceedings. Staying true to his word, Seeger abdicated his
12 role as an advocate by refusing to engage in jury selection, give an opening
13 statement, present a defense or call any witnesses, subject the State’s witnesses to
14 cross-examination, or give a closing argument on behalf of his client. We agree
15 with the district court that this was not a case of ineffective assistance of counsel
16 but rather a case where “[Defendant] has been refused any assistance of counsel.”
17 After all, Seeger’s voluntary posture of determined inaction both precluded any
18 “meaningful adversarial testing” of the State’s evidence and denied Defendant the
19 right of effective cross-examination within the meaning of Grogan, 2007-NMSC-
20 039, ¶ 12, and Cronic, 466 U.S. at 659. In these circumstances, Seeger’s conduct
10 1 rose to the level of a constructive denial of counsel sufficient to create a
2 presumption of prejudice. See Martin v. Rose, 744 F.2d 1245, 1250-52 (6th Cir.
3 1984 (concluding that defense counsel’s “bizarre and irresponsible stratagem” of
4 “abandon[ing] all attempts to defend his client at trial” amounted to “constitutional
5 error even without any showing of prejudice”); see also United States v. Swanson,
6 943 F.2d 1070, 1074 (9th Cir. 1991) (concluding that defense counsel’s concession
7 during summation that there was no reasonable doubt as to any of the disputed
8 factual issues amounted to a failure to subject the prosecution’s case to meaningful
9 adversarial testing and, thus, a failure to provide effective assistance under
10 Cronic).
11 {15} Seeger’s purposeful failure to participate in any meaningful way in
12 Defendant’s trial represents a constitutional violation under both the United States
13 and New Mexico Constitutions. See U.S. Const. amend. VI (guaranteeing a right to
14 assistance of counsel in criminal cases); N.M. Const. art. II, § 14 (same), thus
15 compelling us to vacate Defendant’s convictions and remand for a new trial.
16 {16} We pause here to address the unusual and unseemly situation occasioned by
17 Seeger’s adamant refusal to provide his client with a defense in a felony trial and
18 the district judge’s decision to proceed with such a trial in circumstances where
19 some form of guilty verdict was not only a near certainty, but had no realistic
20 chance of being upheld on appeal. First, we address Seeger’s refusal to provide his
11 1 client with a defense, conduct that violated Seeger’s constitutional responsibility to
2 his client and his duty to the tribunal for which, as a licensed attorney, he serves as
3 an officer. Stated simply, attorneys in New Mexico are not empowered with
4 decisional autonomy regarding when trials commence and when they do not
5 commence. District courts are. Second, we feel obliged to provide our district
6 courts with some guidance as to how to respond to situations like this in the future.
7 A district judge is not helpless when faced with an attorney threatening to
8 withdraw from participation in a criminal trial, but has various options to address
9 the situation. For instance, the district court can order new counsel to represent the
10 defendant. See Sanders v. Rosenberg, 1997-NMSC-002, ¶ 9, 122 N.M. 692, 930
11 P.2d 1144 (“If a compelling reason exists that supports the disqualification of
12 counsel, a court may reject that party’s chosen counsel.”). Or it can impose a
13 sanction on the culpable attorney while at the same time granting a continuance to
14 give the defendant and his or her attorney time to prepare for trial. If, in that
15 circumstance, the attorney still refuses to participate in the face of a clear order to
16 do so, the court can invoke its contempt powers against the obstructionist attorney,
17 see NMSA 1978, § 34-1-2 (1851). While we understand the district court’s
18 concerns over the efficient administration of its docket, forcing a criminal
19 defendant to go to trial with an attorney who refuses to participate itself hinders,
20 rather than promotes judicial economy by wasting scarce court resources while all
12 1 but ensuring a violation of the defendant’s constitutional rights. See Grogan, 2007-
2 NMSC-039, ¶ 10 (“[I]n cases of obvious ineffective assistance of counsel, the trial
3 judge has the duty to maintain the integrity of the court, and thus inquire into the
4 representation.”).
13 1 Retrial is Not Barred in this Case
2 {17} Defendant argues that the district court judge’s conduct bars retrial “under
3 principles of double jeopardy.” A double jeopardy challenge is a constitutional
4 question of law, which we review de novo. See State v. Andazola, 2003-NMCA-
5 146, ¶ 14, 134 N.M. 710, 82 P.3d 77. The New Mexico Constitution, like the
6 Federal Constitution, prevents any person from being “twice put in jeopardy for the
7 same offense[.]” N.M. Const. art. II, § 15; see U.S. Const. amend. V. Double
8 jeopardy may bar retrial on the basis of official misconduct during the initial trial.
9 See State v. Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792. Defendant
10 urges us to apply the three-part test announced by our Supreme Court in Breit,
11 which bars retrial under Article II, Section 15, of the New Mexico Constitution
12 when improper official conduct is so unfairly prejudicial to the 13 defendant that it cannot be cured by means short of a mistrial or a 14 motion for a new trial, and if the official knows that the conduct is 15 improper and prejudicial, and if the official either intends to provoke a 16 mistrial or acts in willful disregard of the resulting mistrial, retrial, or 17 reversal.
18 Breit, 1996-NMSC-067, ¶ 32.
19 {18} Although Defendant acknowledges that our appellate courts have applied
20 Breit only in cases of prosecutorial misconduct, he nonetheless urges this Court to
21 extend Breit to the judge’s actions in this matter. Defendant contends that the
22 jurors saw “tense, fraught interactions between [the judge] and Mr. Seeger. Over
23 and over, the jurors saw Mr. Seeger decline to ask questions. The jurors saw Mr. 14 1 Seeger attempt to address them, and they saw the way [the judge] stopped him.”
2 Further, Defendant asserts, “[b]y making dismissive comments toward the defense
3 in the presence of the jury, [the judge] violated his duty to appear impartial.” And
4 by forcing the parties to continue with the trial in light of Seeger’s declaration of
5 non-participation, Defendant argues, the judge knew Defendant’s rights were being
6 violated and acted in “willful disregard of the reversal that was likely to result.”
7 Defendant contends these actions satisfy all three prongs of the Breit test. We
8 disagree.
9 {19} In Breit, our Supreme Court characterized the proceedings as “a trial out of
10 control” resulting from the “pervasive, incessant, and outrageous nature of the
11 prosecutor’s misconduct.” Id. ¶¶ 37, 41 (internal quotation marks omitted). From
12 opening statements to closing arguments, the prosecutor’s misconduct was
13 apparent. Id. ¶¶ 41-43. He attempted to inflame the jury during opening arguments
14 with irrelevant allegations and exaggerated claims that no evidence could ever
15 support. Id. ¶ 41. He reacted with “sarcasm and scorn” toward opposing counsel
16 and the district court whenever objections were raised and sustained. Id. Even after
17 being admonished by the court, the prosecutor attempted to solicit irrelevant
18 comments from the defendant. Id. ¶ 42. He impliedly threatened opposing counsel
19 and made “belligerent remarks.” Id. He displayed “sarcasm, sneering, rolling of
20 eyes and exaggerated expressions” throughout the trial in front of the jury. Id.
15 1 (internal quotation marks omitted). During closing arguments, the prosecutor
2 attacked the defendant’s election to exercise his rights to counsel and to remain
3 silent, and suggested that opposing counsel had lied and collaborated with the
4 defendant to fabricate a defense. Id. ¶ 43. In reversing defendant’s convictions and
5 barring further prosecution of the underlying first-degree murder and related
6 charges, our Supreme Court noted, “As isolated instances, most of these infractions
7 would be unlikely to raise the bar to retrial. But in this case, . . . the misconduct
8 was unrelenting and pervasive. . . . The cumulative effect [of which] was to deny
9 the defendant a fair trial.” Id. ¶ 45
10 {20} Breit has no bearing on this case. Even if we were to extend Breit to
11 instances of judicial misconduct, the district court judge here acted appropriately
12 and appeared impartial throughout the proceedings. This Court listened to the
13 entire audio recording of the trial, and there was no instance in which the district
14 court judge’s tone of voice sounded inappropriate or improper. The judge did not
15 raise his voice, and he kept his commentary on Seeger’s actions to a minimum in
16 front of the jury. The judge repeatedly gave Seeger the opportunity to change
17 course and actively participate in the trial proceedings by, among other things,
18 asking Seeger if he wished to address the venire during jury selection, inquiring
19 about Seeger’s position regarding potential jurors, giving him an opportunity to
20 make an opening statement, and asking if he wanted to cross-examine witnesses.
16 1 Seeger declined each of the judge’s invitations, and responded by saying “No
2 comment” during jury selection, improperly commenting on the right to counsel
3 during opening statement, and refusing to participate in cross-examination. When
4 the judge asked Seeger if he wanted to give a closing statement, Seeger again
5 brought up the right to counsel before being stopped. We cannot say that the
6 judge’s comments were “dismissive” or appeared biased. Rather, the judge was
7 responding to Seeger’s repeated attempts to argue that he was ineffective as
8 counsel, a legal matter wholly inappropriate for the jury to consider. Moreover, the
9 judge made an effort to avoid interrupting Seeger by reminding him before
10 opening and closing statements to confine himself to discussing the evidence.
11 Additionally, the judge attempted to mitigate Seeger’s inaction in the eyes of the
12 jury multiple times by reminding them that the State had the burden of proof and
13 that Defendant was not required to put on any witnesses or make a closing
14 argument. Nor did the judge act in “willful disregard” of an obvious reversal. To
15 the contrary, the district court made every attempt to have Seeger participate and
16 defend his client, all to no avail. Given these circumstances, we decline
17 Defendant’s invitation to extend Breit to judicial conduct and hold that double
18 jeopardy does not bar retrial in this case.
19 CONCLUSION
17 1 {21} For the foregoing reasons, we reverse Defendant’s convictions and remand
2 for retrial.
3 {22} IT IS SO ORDERED.
4 __________________________________ 5 LINDA M. VANZI, Judge
6 WE CONCUR:
7 _________________________________ 8 J. MILES HANISEE, Judge
9 _________________________________ 10 BRIANA H. ZAMORA, Judge