State v. Collier

• Decision Date: 25 March 2013
• Docket Number: No. 32,915.,32,915.
• Parties: STATE of New Mexico, Plaintiff–Petitioner and Cross–Respondent v. Greg COLLIER, Defendant–Respondent and Cross–Petitioner.
• Court: New Mexico Supreme Court

301 P.3d 370

STATE of New Mexico, Plaintiff–Petitioner and Cross–Respondent

v.Greg COLLIER, Defendant–Respondent and Cross–Petitioner.

No. 32,915.

Supreme Court of New Mexico.

March 25, 2013.

Gary K. King, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, NM, for Petitioner and Cross–Respondent.

Caren Ilene Friedman, Santa Fe, NM, The Pickett Law Firm, L.L.C., Lawrence M. Pickett, Las Cruces, NM, for Respondent and Cross–Petitioner.

Albright Law and Consulting, Jennifer Rebecca Albright, Barbara E. Bergman, Albuquerque, NM, Jones, Snead, Wertheim & Wentworth, P.A., Jerry Todd Wertheim, Trace L. Rabern, Attorney and Counselor at Law, L.L.C., Trace L. Rabern, Santa Fe, NM, for Amicus Curiae New Mexico Criminal Defense Lawyers Association.

OPINION

MAES, Chief Justice.

{1} Greg Collier (Defendant) was indicted in August 2006 for extreme cruelty to animals, a fourth-degree felony, after a horse that Defendant had been training died shortlyafter a training session. A jury acquitted Defendant of felony extreme cruelty to animals but was unable to reach a unanimous verdict on the lesser included offense of misdemeanor cruelty to animals, on which the district court, at the State's request, instructed the jury without objection from Defendant. The issue on appeal is whether the State can retry Defendant for the lesser offense, which was not explicitly charged in the indictment, without running afoul of the double jeopardy clause of the Fifth Amendment to the United States Constitution. We hold that the State can retry Defendant for the lesser included offense because retrial after a mistrial caused by jury deadlock does not violate the constitutional prohibition on double jeopardy.

{2} In the cross-appeal, we consider whether retrial on the lesser included offense is barred by the period set by the two-year statute of limitations for that crime. The State indicted Defendant for felony extreme cruelty to animals less than seven months after the horse's death, but the district court did not instruct the jury on misdemeanor cruelty to animals until after the statute of limitations period for that offense had run. We hold that the statute of limitations was satisfied because our statutes of limitations prescribe time limits within which the State must commence a prosecution by filing the initial charging document in a case, not time limits within which a defendant must be brought to trial. The statute of limitations does not bar retrial on the lesser included offense.

{3} Additionally, Defendant asks this Court to consider the merits of his speedy trial claim, on which the district court has not ruled. We decline to consider Defendant's speedy trial claim in the first instance and remand Defendant's case to the district court.

BACKGROUND

{4} The State alleges that on February 13, 2006, Defendant injured a horse he was training, causing the horse's death. On August 31, 2006, a grand jury returned an indictment charging Defendant with one count of extreme cruelty to animals, a fourth degree felony, under NMSA 1978, Section 30–18–1(E) (2001) (amended 2007).

{5} The State has tried Defendant twice under the indictment. The records of Defendant's previous trials are not in the appellate record before this Court. At Defendant's first trial, held in March 2008, the jury failed to reach a verdict on the felony offense, and thus the district court declared a mistrial based on manifest necessity due to jury deadlock.

{6} At the second trial in January 2009, the State again tried Defendant on the felony extreme cruelty charge but this time requested a jury instruction on the lesser included offense of cruelty to animals. SeeNMSA 1978, § 30–18–1(B)(1) & (D). Defendant did not object to the lesser included offense instruction, and the district court instructed the jury on both offenses. The district court gave the jury the following standard step-down instruction: “If you should have a reasonable doubt as to whether the defendant committed the crime of extreme cruelty to animals, you must proceed to determine whether the defendant committed the included offense of cruelty to animals.” SeeUJI 14–6002 NMRA. The jury found Defendant not guilty of the felony charge but failed to reach a unanimous decision on the misdemeanor offense. The district court entered a judgment of acquittal on the felony charge and declared a mistrial based on manifest necessity due to jury deadlock on the misdemeanor charge.

{7} Following the second trial, the district court set Defendant's case for retrial under the original indictment on the lesser included misdemeanor offense of cruelty to animals. One week prior to commencement of the third trial, which was scheduled to begin July 22, 2009, Defendant moved the district court to dismiss his case. Defendant argued that any one of three grounds warranted dismissal: (1) the double jeopardy clause of the Fifth Amendment to the United States Constitution, (2) New Mexico's two-year statute of limitations for the misdemeanor cruelty to animals offense, or (3) Defendant's right to speedy trial. The district court granted Defendant's motion to dismiss because the State did not explicitly charge Defendant with misdemeanorcruelty to animals within the two-year statute of limitations period for that crime.

{8} The State appealed to the Court of Appeals. See State v. Collier, No. 29,805, mem. op., 2011 WL 704485 (N.M.Ct.App. Jan. 10, 2011). The Court of Appeals held “that cruelty to animals is a lesser included offense of extreme cruelty to animals and that the statute of limitations did not bar trial on the misdemeanor charge.” Id. at 2. But the Court of Appeals affirmed the district court's dismissal of the case because “subsequent prosecution of the Defendant on the misdemeanor charge following his acquittal on the felony charge would violate the constitutional guarantee against double jeopardy.” Id.

{9} The State filed a petition for writ of certiorari, arguing that principles of double jeopardy do not preclude the State from retrying Defendant on the lesser included offense because the jury hung on that charge, causing the district court to declare a mistrial. Defendant filed a cross-petition for writ of certiorari, arguing that a third trial on the misdemeanor charge would violate both the statute of limitations and his right to a speedy trial. We granted certiorari on both petitions.

DISCUSSIONThe State may retry Defendant for the misdemeanor offense without violating Defendant's double jeopardy rights

{10} Defendant asks us to uphold the Court of Appeals' conclusion that retrial on the lesser included offense would violate Defendant's double jeopardy rights. Defendant relies only on the double jeopardy clause in the federal constitution and does not argue that the New Mexico Constitution affords him greater protection. SeeN.M. Const. art. II, § 15. Accordingly, we limit our discussion to the federal constitution and review Defendant's double jeopardy claim de novo. See State v. Gallegos, 2011–NMSC–027, ¶ 51, 149 N.M. 704, 254 P.3d 655 (providing that double jeopardy claims present questions of constitutional law that we review de novo).

{11} The Fifth Amendment to the United States Constitution guarantees that no person shall be “twice put in jeopardy” for the same offense. U.S. Const. amend. V. The “Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment.” Benton v. Maryland, 395 U.S. 784, 787, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The double jeopardy clause protects a criminal defendant against (1) “a second prosecution for the same offense after acquittal,” (2) “a second prosecution for the same offense after conviction,” and (3) “multiple punishments for the same offense.” Gallegos, 2011–NMSC–027, ¶ 30, 149 N.M. 704, 254 P.3d 655 (explaining that both the state and federal constitutions provide these three levels of protection).

{12} Defendant asserts that retrial in this case would constitute a second prosecution for the same offense after acquittal. In response, the State relies on State v. Desnoyers, arguing that “double jeopardy principles are not implicated” when the State retries a defendant “following a mistrial in which the jury could not reach a verdict on a particular count.” 2002–NMSC–031, ¶ 33, 132 N.M. 756, 55 P.3d 968 (internal quotation marks and citation omitted), abrogated on other grounds as noted by State v. Forbes, 2005–NMSC–027, ¶ 6, 138 N.M. 264, 119 P.3d 144;see also State v. O'Kelley, 113 N.M. 25, 27, 822 P.2d 122, 124 (Ct.App.1991) (citing New Mexico case law that relies on federal precedent and stating that it “is well established under New Mexico case law that a retrial after a mistrial caused by a hung jury does not violate the constitutional prohibition on double jeopardy”). We agree that the State may retry Defendant for misdemeanor cruelty to animals without implicating Defendant's double jeopardy rights.

{13} A criminal defendant's double jeopardy right to be free from a second prosecution for an offense does not arise until jeopardy has attached and then terminates for that offense. See Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). In other words, two prerequisites for a meritorious successive-prosecution double jeopardy claim are (1) the attachment of jeopardy and (2) the termination of jeopardy. In a jury trial, jeopardy attaches “when the jury is sworn” to try the case. State v. Saavedra, 108 N.M. 38, 41, 766 P.2d 298, 301 (1988). Jeopardy is terminated by the entry of a final judgment, usually a conviction or an acquittal. See Richardson, 468 U.S. at 325, 104 S.Ct. 3081 (explaining that the protection against double jeopardy “applies only if there has been some event, such as an acquittal, which terminates the original jeopardy”); see also Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) (explaining that “the...