State v. Chavarria
| Decision Date | 14 September 2021 |
| Docket Number | A-1-CA-38267 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. DAVID CHAVARRIA, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
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
{¶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.
{¶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, 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 (). 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.
{¶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 (); State v. Huff, 1998-NMCA-075, ¶ 13, 125 N.M. 254, 960 P.2d 342 (); State v. Paul, -NMCA-, __¶ 7, __P.3d__ (No. A-1-CA-36748, May 28, 2020) ("When a trial court terminates a defendant's trial before the defendant obtains a verdict on a charged offense, the [Double Jeopardy] Clause protects that right by prohibiting the [s]tate from retrying the defendant for that offense unless the defendant consents to the termination or there is a manifest necessity for the termination."), cert. denied, 2020-NMCERT- (No. S-1-SC-38371, Sept. 28, 2020).
{¶9} "A double jeopardy challenge is a constitutional question of law [reviewed] de novo." State v. Lewis, 2019-NMSC-001, ¶ 10, 433 P.3d 276 (internal quotation marks and citation omitted). Although the parties dispute on appeal whether manifest necessity existed to justify the mistrial, we deem it unnecessary to resolve this issue. We will assume without deciding that Defendant is correct that the district court's determination of manifest necessity was error. The pivotal question in our view is whether Defendant nonetheless consented to the mistrial, such that retrial is not barred by double jeopardy principles. See Paul, -NMCA-, ¶ 18 ().
{¶10} "Long established U.S. Supreme Court precedents hold that a defendant's . . . consent to a mistrial generally forecloses any claim of double jeopardy." Martinez, 1995-NMSC-064, ¶ 8. New Mexico recognizes both express and implied consent in this context. See Paul, __-NMCA-__, ¶ 21 (). Our courts that have considered the issue have found implied consent to a mistrial in the context of a deadlocked jury where the defendant failed to object to the trial court's discharge of the jury. See, e.g., State v. Woo Dak San, 1930-NMSC-019, ¶¶ 1-4, 35 N.M. 105, 290 P. 322 (); State v. Brooks, 1955-NMSC-002, ¶¶ 3, 6, 59 N.M. 130, 279 P.2d 1048 (). And more recently in Paul, this Court recognized the two approaches taken by courts generally in determining whether a defendant has implicitly consented to a mistrial, with some courts finding implied consent where the defendant fails to object to a mistrial when given an opportunity to do so, and others requiring something more in the form of a positive manifestation of acquiescence. __-NMCA-__, ¶ 21.
{¶11} In its written order denying the motion to bar reprosecution the district court found that Defendant had "initially objected to the mistrial," but then had "eventually agreed to [a] mistrial as an alternative remedy[.]" Defendant argues, however, that he was in no position to negotiate with the district court when it decided to declare the mistrial when the district court declined to consider its suggested alternative remedies.[...
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