1996 -NMSC- 67, State v. Breit

Decision Date06 December 1996
Docket NumberNo. 21954,21954
Citation1996 NMSC 67,122 N.M. 655,930 P.2d 792
Parties, 65 USLW 2464, 1996 -NMSC- 67 STATE of New Mexico, Plaintiff-Appellee, v. Foster James BREIT, Defendant-Appellant.
CourtNew Mexico Supreme Court


Foster James Breit was convicted for aggravated assault with a deadly weapon and the first-degree murder of Colvin Hill. However, the court granted a motion for a new trial because of extreme prosecutorial misconduct. Breit was convicted on retrial and sentenced to life in prison. On double-jeopardy grounds, we reverse the convictions and discharge Breit from any further prosecution in this matter.

Double jeopardy has been held to bar a new trial when a defendant is goaded by prosecutorial misconduct to move for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982); United States v. Kessler, 530 F.2d 1246, 1255 (5th Cir.1976). In New Mexico, the rule barring reprosecution applies in those situations in which "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." State v. Day, 94 N.M. 753, 757, 617 P.2d 142, 146, cert. denied, 449 U.S. 860, 101 S.Ct. 163, 66 L.Ed.2d 77 (1980). The federal standard, described by the U.S. Supreme Court in Oregon v. Kennedy, restricts the bar against retrial exclusively to those situations in which the prosecution intentionally "goads" the defendant into moving for a mistrial. Oregon v. Kennedy, 456 U.S. at 676, 102 S.Ct. at 2089. Under the Kennedy standard, Breit's reprosecution would not have been barred.

However, so pervasive and outrageous was the misconduct of the prosecutor in Breit's first trial that we are compelled to join other states in concluding that the narrow Kennedy rule based solely on prosecutorial intent does not adequately protect double-jeopardy interests. We do not overrule Day in this opinion. Rather, we interpret Day to be describing instances of misconduct in which the prosecutor acts in willful disregard of the resulting mistrial, retrial, or reversal on appeal. Under this standard, the reprosecution of Breit is barred.


Breit was charged with shooting and killing Hill in Alamogordo, New Mexico on September 1, 1988. Breit claimed he shot in self-defense.

Breit's first conviction was set aside because of extreme prosecutorial misconduct. During the first trial, before the case went to the jury, Breit, through his attorney, expressed great concern about the actions of the prosecutor. He indicated the only proper solution might be the granting of a mistrial. However, since he had already endured the ordeal and expense of the entire trial, he chose to hear the jury's determination. Upon the guilty verdict, Breit filed a motion for a new trial which was granted.

Thereafter, Breit filed a motion to dismiss all the charges on double-jeopardy grounds. The trial court granted this motion by memorandum opinion. State v. Breit, No. CR-88-175, slip op. at 1-11 (N.M.Dist.Ct. Aug. 2, 1990) [hereinafter Breit I ]. The state's motion to reconsider the dismissal was denied in a second memorandum opinion. State v. Breit, No. CR-88-175, slip op. at 2 (N.M.Dist.Ct. Sept. 12, 1990) [hereinafter Breit II ]. The state appealed the dismissal of the charges and the Court of Appeals reversed, stating that a new trial would pose no double-jeopardy violation. State v. Breit, No. 12,638, slip op. at 1-5 (N.M.Ct.App. Sept. 25, 1991) [hereinafter Breit III ]. We denied Breit's motion for certiorari. Breit v. State, 113 N.M. 1, 820 P.2d 435 (1991) [hereinafter Breit IV ].

Breit was convicted in a second trial and sentenced to life imprisonment. Under the New Mexico Constitution we directly receive all appeals of sentences of life imprisonment. N.M. Const. art. VI, § 2 (Repl.Pamp.1992). On appeal, we address only one of the six issues raised by Breit. We conclude that double jeopardy should have barred Breit's second trial and precludes his further prosecution.


The New Mexico Constitution, like its federal counterpart, protects any person from being "twice put in jeopardy for the same offense." N.M. Const. art. II, § 15 (Repl.Pamp.1992); see also U.S. Const. amend. V. The double-jeopardy clause protects defendants from being subjected to multiple prosecutions for a single infraction. State v. Tanton, 88 N.M. 333, 336, 540 P.2d 813, 816 (1975).

The words of Justice Black are often quoted to explain the interests protected by the double-jeopardy clause.

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). However, there is no "guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal laws in one proceeding." Oregon v. Kennedy, 456 U.S. at 672, 102 S.Ct. at 2087. Breit argues that, because of the nature of the prosecutorial misconduct in his first trial, the double-jeopardy clause of the New Mexico Constitution should have barred further prosecution in his second trial. We agree.

The State contends that under the law-of-the-case doctrine we cannot address this issue. As noted above, the trial court's determination that double jeopardy barred the reprosecution of Breit was reversed by the Court of Appeals. Breit III, slip op. at 1-5 (reversing Breit I ). We denied Breit's motion for certiorari. Breit IV, 113 N.M. 1, 820 P.2d 435. Under the law-of-the-case doctrine, "[i]f an appellate court has considered and passed upon a question of law and remanded the case for further proceedings, the legal question so resolved will not be determined in a different manner on a subsequent appeal." Ute Park Summer Homes Ass'n, Inc. v. Maxwell Land Grant Co., 83 N.M. 558, 560, 494 P.2d 971, 973 (1972).

The most expedient response to this argument is that under New Mexico law, "[t]he defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment." NMSA 1978, § 30-1-10 (Repl.Pamp.1994). The right to be protected from double jeopardy is so fundamental, that it cannot be relinquished even if a conviction is affirmed on appeal.

Furthermore, the law-of-the-case doctrine is not inflexible. Rather, it is a matter of precedent and policy; it is a determination that, in the interests of the parties and judicial economy, once a particular issue in a case is settled it should remain settled. See Reese v. State, 106 N.M. 505, 507, 745 P.2d 1153, 1155 (1987) (quoting 5 Am.Jur.2d Appeal and Error § 750 at 194 (1962)). But we will not apply this doctrine to perpetuate an obvious injustice or to affirm a former appellate decision that is clearly erroneous. Id. The law-of-the-case doctrine is discretionary to this Court. In this case, application of the doctrine would be manifestly unjust.

We emphasize, also, that our denial of Breit's petition for review of the double-jeopardy decision of the Court of Appeals suggested nothing as to the correctness of that court's decision. See State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1318 (1983). "[S]ince this court will not grant review whenever it appears that the Court of Appeals reached a questionable decision, it follows that a denial of review carries no implication that the decision or the opinion of the Court of Appeals was correct." 1000 Friends v. Board of County Comm'rs, 284 Or. 41, 584 P.2d 1371, 1372 (1978). Appellate courts sometimes find themselves reexamining a denial of certiorari. In United States v. Ohio Power Co., so that a case might be disposed of consistently with other cases involving the same question, the United States Supreme Court vacated, sua sponte, its order denying a petition for rehearing, even though nearly a year and a half had elapsed since denial of certiorari. 353 U.S. 98, 77 S.Ct. 652, 1 L.Ed.2d 683 (1957). In justifying its action the Court explained, "We have consistently ruled that the interest in finality of litigation must yield where the interests of justice would make unfair the strict application of our rules." Id. at 99, 77 S.Ct. at 653. Appellate courts have the power, in exceptional situations, to recall one of their own mandates after it has issued. Lindus v. Northern Ins. Co., 103 Ariz. 160, 162, 438 P.2d 311, 313 (1968); see also Maryland Casualty Co. v. Hallatt, 326 F.2d 275, 276-77 (5th Cir.) ("We recognize that an appellate court's power to depart from its own ruling on a former appeal should be exercised sparingly and only in exceptional cases."), cert. denied, 377 U.S. 932, 84 S.Ct. 1335, 12 L.Ed.2d 296 (1964). This case is exceptional. Upon Breit's first petition for certiorari, the conduct of the prosecutor should have been examined.

This opinion focusses on trials that are terminated, nullified, or reversed at the defendant's behest, not mistrials that are declared sua sponte by the court. The general rule is that when a defendant, on his or her own motion, obtains a mistrial, reprosecution is permitted. Kessler, 530 F.2d at 1255. However, when a defendant's mistrial motion or request for reversal on appeal is...

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