State v. Reyes-Arreola

• Decision Date: 06 May 1999
• Docket Number: No. 19,429.,19,429.
• Citation: 984 P.2d 775,127 N.M. 528
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Francisco REYES-ARREOLA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

984 P.2d 775

127 N.M. 528

STATE of New Mexico, Plaintiff-Appellee, v. Francisco REYES-ARREOLA, Defendant-Appellant.

No. 19,429.

Court of Appeals of New Mexico.

May 6, 1999.

Certiorari Denied June 18, 1999.

Patricia A. Madrid, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis Subin, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, for Appellant.

Certiorari Denied, No. 25,773, June 18, 1999.

OPINION

HARTZ, Judge.

{1} Defendant's first trial ended in a mistrial when the jury was unable to agree on a verdict. At his second trial he was convicted of distribution of a controlled substance. On appeal he contends that the district court improperly declared a mistrial at the conclusion of the first trial because there was no contemporaneous written order declaring a mistrial. He further contends that this defect was not cured when another judge entered an order nunc pro tune four months later. He claims that his retrial was barred by (1) the Double Jeopardy Clauses of the Constitutions of the United States and New Mexico, (2) Rule 5-611(H) NMRA 1999, and (3) the six-month rule, Rule 5-604(B) NMRA 1999. We affirm.

I. BACKGROUND

{2} Defendant was charged with distribution of a controlled substance, contrary to NMSA 1978, Section 30-31-22 (1990). On February 11, 1997, he was tried by a jury before District Judge Pro Tempore Norman Hodges. During jury deliberations the fore-person stated that the jury was deadlocked. She reported that the jurors had been polled several times and were evenly divided—six in favor of acquittal and six in favor of a guilty verdict. When Judge Hodges asked her whether the jury could reach a unanimous verdict if given a reasonable amount of time for further deliberations, she responded that further deliberations would be futile. Judge Hodges then asked the prosecutor and defense counsel whether they had any comments. Neither did. As a result, Judge Hodges stated that he was going to "call this a hung jury." He orally declared a mistrial based on the jury's inability to agree on a verdict and stated that the "case will be retried at a later date." Again, the court asked counsel if they had any comments. Neither voiced any comments or objections to the oral declaration of a mistrial.

{3} Judge Hodges never entered a written order declaring a mistrial and reserving the right to retry Defendant. No such written order was ever specifically requested by either party. Not until four months later, on June 2, 1997, did another judge, District Judge Gary Jeffreys, enter sua sponte a written Order Declaring Mistrial Upon Jury Disagreement. The order was made effective nunc pro tune as of February 11, 1997, the date of Judge Hodges' oral ruling. The order states:

THIS MATTER having come before the Court on the 11th day of February, 1997, for jury trial, ... and the jury, having deliberated a reasonable time and having reported to the Court that they are unable to agree upon a verdict herein, and the Court having polled the jury in accordance with [Rule] 5-611;

IT IS THEREFORE ORDERED as follows:

1. A mistrial based on jury disagreement is declared as to CONTROLLED OR COUNTERFEIT SUBSTANCES; DISTRIBUTION PROHIBITED to wit: 94.5 pounds of Marijuana, as charged in the Amended Criminal Information herein;

2. The power to retry the charge upon which the mistrial is declared is reserved;

3. This order shall be effective Nunc protunc from February 11, 1997, and the State shall have six (6) months from that date to commence a new trial in this matter;

4. The jury is discharged from further consideration of this matter.

Aside from the nunc pro tunc provision in paragraph 3, the order conforms to the form of Order Declaring Mistrial Upon Jury Disagreement adopted by the New Mexico Supreme Court. See Rule 9-508 NMRA 1999.

{4} On July 15, 1997, Defendant filed a motion to dismiss on the grounds that his reprosecution was barred by the prohibition against double jeopardy, Rule 5-611(H), and the six-month rule. On July 17, 1997, the district court denied Defendant's motion to dismiss, certifying the order of denial for interlocutory appeal. Defendant filed his application for interlocutory appeal on July 24, 1997. This Court denied the application on August 6, 1997. Defendant was retried on January 30, 1998, and found guilty of the charged offense. This appeal followed.

II. DISCUSSION

A. Standard of Review

{5} There are no disputed material facts. Thus, we review all questions raised on appeal under a de novo standard of review. See State v. Attaway, 117 N.M. 141, 145, 870 P.2d 103, 107 (1994)

(applying de novo review to constitutional claims); State v. Roman, 1998-NMCA-132, ¶ 8, 125 N.M. 688, 964 P.2d 852 ("[I]nterpretation and application of the law are subject to a de novo review."); State v. Wilson, 1998-NMCA-084, ¶ 8, 125 N.M. 390, 962 P.2d 636 (reviewing application of the six-month rule de novo).

B. Double Jeopardy

{6} The Constitutions of the United States and the State of New Mexico each contain a double-jeopardy clause guaranteeing that no person shall be "twice put in jeopardy" for the same offense. U.S. Const. amend. V; N.M. Const. art. II, § 15. These guarantees protect an individual against successive prosecutions for the same offense after an acquittal or conviction and against multiple punishments for the same offense. See Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991)

.

"The underlying idea ... 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...." Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the same offenses charged.

Id. (quoting Grady v. Corbin, 495 U.S. 508, 518, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)).

{7} Nevertheless, these clauses do not prohibit retrying a defendant, even over the defendant's objections, after a mistrial that was justified by "manifest necessity." Arizona v. Washington, 434 U.S. 497, 505-06, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The classic case of such necessity is a hung jury. See id. at 509, 98 S.Ct. 824; cf. State v. Martinez, 120 N.M. 677, 678, 905 P.2d 715, 716 (1995)

(no double-jeopardy violation when defendant retried after hung jury). Defendant does not dispute that the jury at his first trial could not reach a verdict. Thus, the double-jeopardy issue is not whether the district court had the authority to declare a mistrial at the first trial. Rather, Defendant contends that the declaration of mistrial was procedurally defective, thereby barring a second trial.

{8} Here, the presiding judge orally declared a mistrial, but no written order was entered until the successor judge entered one four months later. Defendant argues that the constitutional prohibition against double jeopardy requires that an order declaring a mistrial be in writing and entered of record immediately after the trial court's oral ruling to ensure that "clear and unequivocal notice" is given to the defendant that he will be retried. Although a contemporaneous written order would not be necessary to advance the core purposes of the prohibition against double jeopardy, Defendant asserts that the requirement of such an order "is the only way to protect a defendant against living in a continuing state of anxiety and insecurity—not knowing whether or not he is going to be retried."

{9} We disagree. Our research has uncovered few reported decisions in point, but all reject Defendant's position. See Swafford v. State, 161 Ga.App. 139, 291 S.E.2d 3 (1982); People v. Harding, 53 Mich. 481, 19 N.W. 155, 157 (1884); Murphy v. State, 149 Tex.Crim. 624, 198 S.W.2d 98, 99 (App.1946) (failure to enter order discharging jury, alone, does not give rise to double-jeopardy claim); Rodgers v. State, 93 Tex.Crim. 1, 245 S.W. 697, 699 (App.1922) ("[T]he entry of the judgment in the minutes of the court is only the evidence of the judicial ascertainment, and not the judicial ascertainment itself'); Peterson v. State, 586 P.2d 144, 150-51 (Wyo.1978) (no double-jeopardy violation even though trial court failed to enter written order explaining reasons for mistrial, as required by statute, where trial transcript of dialogue between trial judge and foreperson established that jury was deadlocked), overruled on other grounds by Crozier v. State, 723 P.2d 42, 56 (Wyo.1986)

; cf. State v. Pakulski, 319 N.C. 562, 356 S.E.2d 319, 325 (1987) (trial court's initial failure to enter findings of fact in support of mistrial did not violate double-jeopardy clause because record clearly established jury deadlock).

{10} We agree with these authorities. Because the record in this case clearly discloses the manifest necessity for declaring a mistrial, Defendant could be retried without placing him in double jeopardy. We fail to see how the delay in entering a written order declaring a mistrial prejudiced Defendant's rights under the double-jeopardy clauses. The delay did not cast any doubt on the trial court's declaration of mistrial or reservation of the right to retry Defendant. The trial court could not change its mind about the mistrial ruling once it determined that the jury was deadlocked, orally declared a mistrial, and discharged the jury. Oral declarations of mistrial are unlike other oral decisions by the trial court, which are not binding and are subject to change until a final written order or judgment is entered. Cf. Smith v. Love, 101 N.M. 355, 356, 683 P.2d 37, 38 (1984)

(oral ruling is only evidence of what trial court intends to do, and trial court could change its mind any time before entry of final written order or judgment); State v. Page, 100 N.M. 788, 793, 676 P.2d...