State v. Chavarria, 091421 NMCA, A-1-CA-38267

Docket NºA-1-CA-38267
Opinion JudgeJACQUELINE R. MEDINA, JUDGE
Party NameSTATE OF NEW MEXICO, Plaintiff-Appellee, v. DAVID CHAVARRIA, Defendant-Appellant.
AttorneyHector H. Balderas, Attorney General Van Snow, Assistant Attorney General Santa Fe, NM for Appellee McCleary Law Office Mary McCleary Albuquerque, NM for Appellant
Judge PanelWE CONCUR: J. MILES HANISEE, Chief Judge, KRISTINA BOGARDUS, Judge
Case DateSeptember 14, 2021
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

v.

DAVID CHAVARRIA, Defendant-Appellant.

No. A-1-CA-38267

Court of Appeals of New Mexico

September 14, 2021

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Christina P. Argyres, District Judge

Hector H. Balderas, Attorney General Van Snow, Assistant Attorney General Santa Fe, NM for Appellee

McCleary Law Office Mary McCleary Albuquerque, NM for Appellant

MEMORANDUM OPINION

JACQUELINE R. MEDINA, JUDGE

{¶1} Defendant appeals from the district court's denial of his motion to bar retrial on the sole charge of aggravated battery following the district court's declaration of a mistrial. Defendant argues that retrial would subject him to double jeopardy because the mistrial was not justified by manifest necessity and was due to prosecutorial misconduct. Assuming that manifest necessity did not justify the mistrial, we hold that principles of double jeopardy do not preclude retrial because Defendant consented to the mistrial declaration. We also hold that misconduct by the prosecutor, if any, did not rise to a level sufficient to bar retrial. We therefore affirm the district court.

BACKGROUND

{¶2} Defendant was accused of shooting the alleged victim, Alan Cofran, during a physical confrontation that took place at a gathering at Defendant's home. During trial, defense counsel cross-examined Mr. Cofran as to whether he had reviewed documents or statements from other witnesses before testifying, implying that Mr. Cofran's testimony could have been tailored to accord with the other witnesses' version of events. On redirect examination, the prosecutor then asked Mr. Cofran whether he "had the opportunity to sit in here and listen to any of the witnesses testify." When Mr. Cofran stated no, the prosecutor said, "So unlike the Defendant you-"

{¶3} At that point, defense counsel objected, and a bench conference took place. Defense counsel argued that the prosecutor's question amounted to a comment on Defendant's right to be present at trial and was therefore an act of prosecutorial misconduct sufficient to call for a mistrial. However, defense counsel stated that, given the late stage of the trial, she was not ready to move for a mistrial at that point, and instead moved for a new trial in the event of conviction and asked the district court to issue a curative instruction.

{¶4} The district court subsequently recessed the jury and conferred with the parties regarding the defense objection. At that point, defense counsel modified her prior motion for a new trial in the event of conviction, stating that, on reflection, she was not concerned that error requiring a mistrial had occurred and asked instead that the district court disqualify the lead prosecutor. The district court disagreed that the prosecutor's conduct required disqualification, instead stating its concern that the question invited the jury to make impermissible inferences. Specifically, the district court stated that if Defendant chose to testify, the jury was invited to infer that he was lying because he had heard the other witnesses testify and could tailor his testimony accordingly. Conversely, if Defendant chose not to testify, the jury was invited to infer that it was because he had listened to the other witnesses' testimony, and the question therefore implied an impermissible comment on his silence. The district court also indicated that it did not believe that a curative instruction would be helpful, stating, "You can't unring the bell."

{¶5} Defense counsel then stated that Defendant would be willing to waive his right to a jury trial and have the case decided by the bench, asserting that Defendant wanted to get the case decided that day and did not want a mistrial. The district court again expressed its concerns with the implications of the prosecutor's question and said that it did not know how to proceed fairly. Defense counsel replied, "I told the court I would trust you as to what my remedy is, and is the court saying there is no remedy short of a mistrial that will be adequate? I think that is a factual finding that the court would make." The district court and the parties then agreed to reconvene on the issue the following morning.

{¶6} The next day, defense counsel began by arguing that an instruction to the jury telling it not to consider Defendant's presence at trial in its deliberations would be a sufficient remedy. Defense counsel added that "if the court does not find an adequate remedy short of a mistrial, however, I would ask the court to entertain a motion for mistrial at this time." After restating its concerns with the inferences that could be drawn from a comment on Defendant's presence at trial, the district court concluded that an instruction to the jury could not cure the issue and that it had no choice but to declare a mistrial due to manifest necessity.

{¶7} Defendant subsequently filed a motion to bar retrial, arguing that the State acted intentionally, or in the alternative, with reckless disregard, to cause a mistrial. See State v. Breit, 1996-NMSC-067, ¶ 2, 122 N.M. 655, 930 P.2d 792 (recognizing that inherent in the bar on retrial is the prosecutor's intent to provoke a mistrial). Following a hearing, the district court denied the motion, ruling that the prosecutor's question was not posed intentionally to cause a mistrial or with recklessness. Defendant appeals from this order.

DISCUSSION

{¶8} The Double Jeopardy Clauses of both the Federal and State Constitutions guarantee that no person shall be "twice put in jeopardy" for the same offense. U.S. Const. amend. V; N.M. Const. art. II, § 15. When the district court declares a mistrial, double jeopardy precludes retrial unless manifest necessity compelled the mistrial or the defendant either moved for or consented to the mistrial. See State v. Lynch, 2003-NMSC-020, ¶ 18, 134 N.M. 139, 74 P.3d 73; see also State v. Martinez, 1995-NMSC-064, ¶ 8, 120 N.M. 677, 905 P.2d 715 (stating that when a mistrial is granted over the...

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