State v. Callaway

• Decision Date: 07 November 1989
• Docket Number: No. 10966,10966
• Citation: 109 N.M. 564,787 P.2d 1247,1989 NMCA 94
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Terry CALLAWAY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 1247

787 P.2d 1247

109 N.M. 564

STATE of New Mexico, Plaintiff-Appellee, v. Terry CALLAWAY, Defendant-Appellant.

No. 10966.

Court of Appeals of New Mexico.

Nov. 7, 1989.

[109 NM 565] Hal Stratton, Atty. Gen., Gail MacQuesten, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Michael E. Vigil, Marchiondo, Vigil & Voegler, P.A., Albuquerque, for defendant-appellant.

OPINION

ALARID, Judge.

Defendant appeals his convictions, upon retrial, on two counts of second-degree criminal sexual penetration (CSP II), and one count each of criminal sexual contact (CSC), aggravated battery, kidnaping, and conspiracy to commit CSP. He raises three issues in his brief: (1) whether retrial, after his first trial ended in a "manifest necessity" mistrial, constituted double jeopardy; (2) whether a new trial should have been granted on the basis of newly discovered evidence; or in the alternative, whether he was denied effective assistance of counsel; and (3) whether his sentence contains an illegal condition. Other issues listed in the docketing statement but not briefed are deemed abandoned. State v. Fish, 102 N.M. 775, 701 P.2d 374 (Ct.App.1985). We affirm.

DOUBLE JEOPARDY

At the first trial, the victim testified that, prior to the attack, she spoke to State Police Officers Garcia and Medina concerning a month-long campaign of harassment and threats by defendant, co-defendant and an unidentified third man. The state believed the defense intended to call the officers for their testimony that they did not believe the victim's allegations of harassment. The state made a motion in limine to exclude evidence concerning the officers' opinions of the victim's veracity. Defense counsel represented that he was planning to ask Officer Medina his opinion of the victim's credibility. Counsel stated that he had not planned to ask Officer Garcia his opinion. The trial court granted the state's motion, and instructed defense counsel to tell Officer Medina not to state his opinion. The trial court specifically told counsel that there would be an immediate mistrial if Officer Medina gave his opinion. Although the trial court directed counsel to inform only Officer Medina of his ruling, defense counsel was on notice that any opinion evidence concerning the victim's credibility was prohibited. Defense counsel asked Officer Garcia on direct examination if he had done anything to dissuade the victim from filing a complaint. The witness responded that he had not dissuaded the victim, but that he had not believed what she was saying. The trial court immediately declared a mistrial. After the jury left the courtroom, the trial court stated its belief that counsel had been probing for the officer's response. Counsel denied soliciting the response but admitted that he had not cautioned Officer Garcia about the court's ruling in limine. Defense counsel told the court he did not think Officer Garcia would volunteer such opinion so he had not discussed the court's admonition with him. The trial court noted that even if counsel had not acted intentionally, he violated his duty to inform the officer not to give his opinion.

Defendant contends the trial court's sua sponte declaration of a mistrial was not based upon reasons of manifest necessity. This being the case, he argues his retrial constituted double jeopardy.

Both the federal and state constitutions prohibit the state from twice subjecting a person to criminal prosecution for the same offense. U.S. Const. amend. V; N.M.Const. art. II, Sec. 15. The double jeopardy clause also protects a criminal defendant against being retried in some instances when the criminal proceeding was aborted before a final judgment was obtained. State v. Saavedra, 108 N.M. 38, 766 P.2d 298 (1988). Jeopardy attaches when the jury is sworn in the first trial, and if the defendant objects to a mistrial he cannot be retried once jeopardy attaches, unless the mistrial was found to have been declared for reasons of "manifest necessity." Id. The question upon appellate review is whether the trial court exercised its sound discretion in deciding there was a manifest necessity for the declaration of a mistrial. State v. Sedillo, 88 N.M. 240, 539 P.2d 630 (Ct.App.1975).

The standard for determining the existence of manifest necessity to declare a mistrial involves carefully weighing the defendant's right to have his trial completed against the public's interest in a fair trial and just judgment. State v. Messier, 101 N.M. 582, 686 P.2d 272 (Ct.App.1984). Thus, a grant of mistrial is not proper merely to allow the state to strengthen its case upon retrial, or to secure the attendance of a witness which it neglected to subpoena or have present at trial. Id. The prosecutor must shoulder a heavy burden to justify the mistrial if the double jeopardy bar is to be avoided. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); State v. Saavedra.

In Porter v. Ferguson, 324 S.E.2d 397 (W.Va.1984), the court considered a case similar in part to the present case. In Porter, defense counsel violated an order of the trial court issued after an in-limine hearing. The trial court directed that defense counsel not inquire into the fact of a previous arrest of a key prosecution witness on charges unrelated to those pending against the defendant. The court upheld the trial court's sua sponte declaration of a mistrial, observing that a general rule has evolved to the effect that improper conduct of defense counsel which prejudices the state's case may give rise to manifest necessity for the granting of a mistrial. The court found that the trial court did not abuse its discretion because defense counsel's questioning of the witness was in violation of the court's in-limine order, that defense counsel had been cautioned in advance not to conduct such inquiry and despite such warning counsel embarked on the line of questioning, and that the effect of such questioning prejudiced the state's case. Under these facts, the court in Porter determined that the trial court did not act precipitously, and the sua sponte granting of a mistrial came within the ambit of manifest necessity.

Defendant maintains the trial court abused its discretion in declaring the mistrial by acting hastily and failing to consider alternatives.¹ We hold that under the circumstances of this case, the trial court properly declared the mistrial.

Explicit findings on the presence of manifest necessity are not determinative of the issue involved, but the record must contain sufficient justification for the granting of the mistrial. Arizona v. Washington; State v. Messier. Where the conduct of the defense may have affected the partiality of the jury, the trial court's evaluation of the need for a mistrial is accorded the highest degree of respect. Arizona v. Washington; see also State v. Fosse, 144 Wis.2d 700, 424 N.W.2d 725 (Ct.App.1988). We agree with the state that situations in which the conduct of the defense has affected the trial create a difficult dilemma for the trial judge. If the trial court does not grant the mistrial, the prejudice could result in an unjust acquittal. On the other hand, if the trial court grants the mistrial the defendant will be discharged if an appellate court disagrees with the finding of manifest necessity. Under these circumstances, the trial court's decision should be accorded considerable deference.

Officer Garcia's comment seriously prejudiced the state's case. The state presented little evidence corroborating the victim's testimony. There was scant physical evidence of a sexual assault. The defendant presented alibi testimony. Thus, the victim's credibility was crucial to the state's case.

We find little support for defendant's position from our decisions in Sedillo and State v. De Baca, 88 N.M. 454, 541 P.2d 634 (Ct.App.1975). In Sedillo, the defense misconduct did not go to the "very vitals of the trial itself." Id., 88 N.M. at 242, 539 P.2d at 632. By contrast, Officer Garcia's comment in this case was potentially devastating since the state's case was based almost entirely upon the victim's credibility. In De Baca, the alleged jury tampering did not create any possibility of juror bias. In this case, there can be little question that the officer's comment materially undermined the victim's credibility before the jury.

We also do not believe that the state used the mistrial to its tactical advantage by presenting new evidence and witnesses. The state did not move for the mistrial. See State v. Messier. Similarly, our review of the record does not support an inference that the state sought to gain, or would gain, any advantage from a mistrial. See id. The fact that the state did not present the identical case on retrial is not determinative of this issue. Compare United States v. Kin Ping Cheung, 485 F.2d 689 (5th Cir.1973). The trial court's exercise of discretion concerning whether to grant a mistrial is entitled to some weight in cases where defense counsel's failure to comply with a ruling of the court may serve to bias the jury against the state. See State v. Fosse; see also United States v. Kwang Fu Peng, 766 F.2d 82 (2d Cir.1985).

Defendant argues that the trial court did not explore possible alternatives to a mistrial. A trial court has a duty to inquire into the alternatives before declaring a mistrial. State v. De Baca. The trial court, however, is not required to make a detailed record of each alternative considered before declaring a mistrial. Id.; State v. Messier. The trial court's declaration of a mistrial should not be overturned solely because it failed to articulate all the factors which were considered in the exercise of its discretion. See Arizona v. Washington. We recognize that the trial judge's vitriolic outburst in his sua sponte declaration of a mistrial was inappropriate and we do not condone such conduct. However, just prior to the in-court presentation of Officer Garcia's...