State v. Surratt

2016 NMSC 004, 9 N.M. 131
New Mexico Supreme Court·Decided December 10, 2015·No. 35,049·Published·Cited by 5 cases

Opinion

OPINION

DANIELS, Justice.

{1} Following a second trial, Defendant Danny Surratt was convicted of criminal sexual penetration of a minor. Defendant appealed his conviction, claiming the district attorney serving as special prosecutor at the second trial lacked the authority to prosecute the case because his appointment by the first special prosecutor, also a district attorney, was invalid. Defendant maintained that the Lea County District Court was thereby divested of jurisdiction over his criminal proceedings. The Court of Appeals agreed with Defendant and reversed his conviction, effectively remanding the case for a third trial. See State v. Surratt, 2015-NMCA-039, ¶ 16, 346 P.3d 419. We hold that a properly appointed special prosecutor is given all the authority and duties of the appointing district attorney to prosecute the case for which that special prosecutor was appointed, including the authority to name another special prosecutor if unable to proceed for an ethical reason or other good cause. Defendant does notraise any additional grounds for reversal on appeal. Accordingly, we reverse the Court of Appeals and reinstate Defendant’s conviction.

I. BACKGROUND

{2} On August 31, 2010, following an investigation by the New Mexico State Police, Defendant Danny Surratt was charged in Lea County Magistrate Court with several counts stemming from allegations of inappropriate sexual conduct with his two minor stepgranddaughters. Defendant served for many years as a law enforcement officer in Lea County and was a deputy sheriff at the time the allegations arose. Janetta Hicks, who was then the district attorney for the Fifth Judicial District where Lea County is located, determined that Defendant’s position and relationship with the Lea County Sheriffs Department created a conflict of interest for her office. As a result, she appointed the district attorney for the Twelfth Judicial District, Diana Martwick, or her designee as special prosecutor for the State in Defendant’s case. The signed and notarized appointment was filed with the Lea County Magistrate Court on September 1, 2010.

{3} On December 13, 2010, a Lea County Magistrate found probable cause to order the case bound over for trial in the district court. An assistant district attorney from Martwick’s office filed a four-count criminal information against Defendant in the Lea County Fifth Judicial District Court. At the conclusion of the State’s case, the district court dismissed two counts, a jury found Defendant guilty on one count of criminal sexual penetration of a child between the ages of thirteen and eighteen, and the court declared a mistrial on the final count because the jury could not reach consensus. Prior to sentencing, new counsel for Defendant moved for a new trial on the basis of an improper jury instruction pertinent to the charge for which Defendant was convicted. The district court granted Defendant’s motion, set aside the verdict, and ordered a second trial.

{4} At the time the case was remanded for a second trial, Martwick determined that her office could no longer effectively prosecute the State’s case against Defendant. She believed the assistant district attorney assigned to the case lacked the requisite experience to conduct a retrial, a conflict had developed between the alleged victims and the State’s prosecutors in the first trial during the course of that trial, and she herself was precluded from participating in a new trial because she was quite ill and undergoing extensive medical treatment. Ultimately, Martwick “felt that it would be in the best interest of justice to re-assign the case” to the office of another district attorney. She contacted Hicks regarding the case reassignment. They agreed that because Hicks’ office was conflicted out of the case, Martwick herself should appoint another special prosecutor.

{5} Martwick appointed Matthew Chandler, the Ninth Judicial District Attorney at that time, or his designee as special prosecutor in her place. The appointment was filed with the Lea County District Court on July 6, 2012. Chandler’s chief deputy entered her appearance in the case three days later. Prior to the second trial, the district court granted Defendant’s motion to sever the two remaining charges against him. The State first proceeded against Defendant on one count of criminal sexual penetration of a child under the age of thirteen, and the jury found Defendant guilty. Once again before sentencing, Defendant’s counsel filed a motion for a new trial, indicating that he had received a telephone call from an unidentified individual stating that “the jury had and used improper information” in Defendant’s case. The district court issued an order permitting Defendant’s counsel to interview jurors to determine whether the anonymous allegation had merit. The court sentenced Defendant to eighteen years of imprisonment but delayed entering the final judgment pending the outcome of defense counsel’s investigation.

{6} Defense counsel did not uncover any juror misconduct in his investigation but stated in a motion to dismiss the complaint and set aside Defendant’s sentence that, “[i]n the process of investigation, [he] became aware for the first time of defects in the appointment of counsel for the State serving as Special Prosecutor.” Specifically, Defendant challenged Martwick’s appointment of Chandler, arguing Martwick was not authorized to make the appointment and therefore it was “without legal effect.” Defendant argued Chandler therefore lacked legal authority to prosecute him, and absent that authority “no jurisdiction exist[ed] for criminal prosecution of the matter.” The district court allowed both parties to submit further briefing before hearing the issue,

{7} The State’s briefing included affidavits from District Attorneys Hicks, Martwick, and Chandler. In her affidavit, Hicks indicated that “[o]nce this conflict appointment took place, [she] no longer had any authority whatsoever over the case” and that “the appropriate manner to handle th[e] matter was in [District Attorney Martwick’s] sole discretion,” including decisions regarding any further appointment deemed appropriate. In addition to expounding her reasons for reassigning the case, Martwick stated in her affidavit that she “made the appointment as [she] was the current assigned Special Prosecutor in the matter and the Fifth Judicial District [Attorney] had already been conflicted out of the proceeding.” Martwick further indicated that when she spoke with Hicks prior to appointing Chandler, both agreed that Hicks was conflicted out and that Martwick “should be the one to do the appointment.” Finally, Chandler stated in his affidavit that when Martwick appro ached him for assistance, he agreed to represent the State in Defendant’s case and accordingly filed the appointment and oath of special prosecutor.

{8} The district court denied Defendant’s motion and formally entered the judgment and sentence against Defendant for the first degree felony conviction of criminal sexual penetration in violation of NMSA 1978, Section 30-9-11(D)(1) (2009). The State dismissed the remaining charge of criminal sexual penetration in the second degree without prejudice for “judicial efficiency.” All trial court proceedings in Defendant’s case were heard in the Lea County Fifth Judicial District Court before the same judge.

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State v. Surratt, 2016 NMSC 004, 9 N.M. 131 (N.M. 2015).

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