State v. Cordova

• Decision Date: 14 September 1999
• Docket Number: No. 18895.,18895.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. George CORDOVA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

993 P.2d 104

128 N.M. 390

STATE of New Mexico, Plaintiff-Appellee, v. George CORDOVA, Defendant-Appellant.

No. 18895.

Court of Appeals of New Mexico.

September 14, 1999.

Certiorari Granted November 19, 1999.

Tom Udall, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, for Appellee.

Jennifer L. Stone, Albuquerque, for Appellant.

Certiorari Granted, No. 25,988, November 19, 1999.

OPINION

ARMIJO, Judge.

{1} George Cordova (Defendant) appeals his convictions for Criminal Sexual Contact of a Minor (CSCM), contrary to NMSA 1978, § 30-9-13(A)(1) (1991), and false imprisonment, contrary to NMSA 1978, § 30-4-3 (1963). He claims violation of his rights to due process and fundamental fairness. Alternatively, he claims that his sentence on both charges violated his protection against double jeopardy. He further claims error in the district court's admission of polygraph evidence and in the trial judge's refusal to recuse himself. For the reasons discussed below, we affirm Defendant's convictions and sentence.

FACTUAL BACKGROUND

{2} In August 1995, a grand jury indicted Defendant on charges of CSCM and false imprisonment. The State's factual allegations supporting the indictment are that on July 28, 1995, an eleven-year-old girl (Child) entered Defendant's home to borrow a pair of scissors. While in his home, she waited for Defendant to end a telephone call. When he ended his call, Child walked toward Defendant to thank him. At this point, Defendant pulled Child to him and restrained her to his lap. While restraining her, Defendant reached down and grabbed Child's vagina through her clothes, as if "he was trying to grab inside." Child struggled to free herself, dropping the scissors in the process. She eventually broke free sufficiently to grab for the scissors; however, Defendant pulled her back, again restraining her to his lap. He then kissed Child, inserting his tongue into her mouth.

PROCEDURAL BACKGROUND

{3} The district court, presided over by Judge Robert M. Doughty, II, convened a jury trial to hear these charges on May 13, 1996. Prior to trial, Defendant filed a motion in limine, seeking to exclude from evidence any reference to a polygraph test administered upon Child that indicated she was speaking truthfully in making her allegations against Defendant. As his initial grounds of objection, Defendant argued that the polygraph evidence ought to be excluded for the State's failure to comply with the discovery requirements of Rule 11-707 NMRA 1999. The district court denied the motion. Defendant supplemented his motion on the morning of trial, summarily asserting that the polygraph evidence was inadmissible per Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,125 L.Ed.2d 469 (1993), and State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993):

Supplemental to our objection to the court's ruling on the admissibility of the polygraph testimony and in light of the fact, your honor, that in the event that in some appellate court the rule, or Supreme Court rule, or rule of evidence relating to admissibility should be disregarded and the court should go to the Dow Chemical [Pharmaceuticals] test, which is set out, I think in Alberico, ... we would object under Dow Chemical [Pharmaceuticals] and under Alberico to the admissibility of the, of the polygraph evidence because it does not pass what's commonly called and become the Dow test.

The trial judge denied this supplemental motion.

{4} The trial ended with a hung jury. The record is unclear as to how the jury voted, and the parties contest whether the majority favored acquittal or conviction. Nonetheless, on May 21, 1996, the district court entered a written order of mistrial, expressly reserving the State's right to retry the case. The parties do not contest the validity of, nor the findings supporting, the mistrial order.

{5} The district court convened a second trial on November 12, 1996; however, due to a scheduling conflict, Judge Doughty recused himself, appointing Judge Frank K. Wilson to try the matter in his stead. In this proceeding, Defendant filed no pretrial motions; instead, on the first day of trial, he summarily asked the court to reconsider the pretrial motion made prior to the first trial. Without any substantive presentation or argument, the district court reaffirmed the prior ruling; that is, it denied the motion.

{6} The evidence the parties presented at the second trial did not substantially differ from that which they presented at the first. Defendant notes changes in the State's direct and cross-examinations, the State's addition of Child's step-father as a witness, and modifications in some witnesses' testimony. Nonetheless, as a whole, the parties did not substantially alter their evidence or arguments for the second trial.

{7} The second trial also ended with a deadlocked jury. The record indicates, however, that this jury voted eleven to one to convict on the charge of CSCM and eight to four to convict on the charge of false imprisonment. On November 21, 1996, the district court entered a second written order of mistrial. The parties do not challenge the validity of, nor the findings supporting, the trial court's second declaration of a mistrial.

{8} Judge Doughty convened a third and final jury trial on August 7, 1997. On July 25, 1997, eleven days before trial, Defendant filed a motion, whereby he sought the following relief: appointment of a public defender to replace his private counsel, due to Defendant's indigency; dismissal of all charges, claiming violations of due process and the prohibition against double jeopardy; recusal of the district attorney's office, due to an alleged appearance of impropriety; and funds for transcripts and transportation of witnesses.

{9} The district court convened a hearing on the motion the day before trial, August 6, 1997, and denied Defendant's motion in all regards. However, in denying the motion, the judge noted that if the third trial ended with a deadlocked jury, the State would not be allowed to try Defendant yet again.

{10} The third jury convicted Defendant on both counts. The district court subsequently sentenced Defendant to eight-and-one-half years in prison—three years for the CSCM conviction, one-and-one-half years for the false imprisonment conviction, and four years' enhancement for Defendant's habitual offender status. Defendant now appeals.

DISCUSSION

{11} On appeal, Defendant raises four arguments. He claims that: (1) allowance of a third trial violated fundamental fairness and his right to due process, (2) sentencing on both charges violated the constitutional prohibition against double jeopardy, (3) admission of evidence of Child's polygraph test was error, and (4) Judge Doughty's refusal to recuse himself from the third trial was error. We discuss each of Defendant's claims in turn.

1. Due Process and Fundamental Fairness

{12} Defendant argues that the district court deprived him of fundamental fairness and due process by allowing the State to wage a "trial by attrition." United States v. Castellanos, 478 F.2d 749, 753 n. 4 (2d Cir. 1973) (quotation marks omitted). By allowing repeated prosecution, he asserts, the court permitted the State to win its case by wearing down Defendant as it practiced its own case. In so arguing, he raises a novel question: when does retrial, subsequent to a validly entered mistrial, go too far? The question implicates two basic rights: a defendant's right to a fair trial and the State's right to seek a verdict on validly prosecuted charges.

{13} Reviewing Defendant's claim of constitutional error de novo, we find no per se violation of due process in the district court's third trial of Defendant. A retrial, subsequent to a validly entered mistrial, does not alone violate a criminal defendant's constitutional rights. See, e.g., United States v. Quijada, 588 F.2d 1253, 1255 (9th Cir.1978)

; Ex parte Anderson, 457 So.2d 446, 451 (Ala. 1984); People v. Hobbs, 301 Ill.App.3d 481, 234 Ill.Dec. 843, 703 N.E.2d 943, 950 (1998); Cook v. State, 940 S.W.2d 623, 627-28 (Tex. Crim.App.1996) (en banc). Defendant adduced no evidence that the State used the third trial to intimidate or harass him. Nor did Defendant present evidence of any other prosecutorial abuse of power. See State v. Duncan, 117 N.M. 407, 410-12, 872 P.2d 380, 383-84 (Ct.App.1994).

{14} Turning to the specific facts of this case, we note that Defendant moved for a continuance on April 21, 1997, citing the "overwhelming" "financial burden of a third trial" and the possibility that he would seek appointment of a public defender. Among Defendant's specific complaints regarding cost, he pointed to his inability to pay for either transcripts or the transportation of out-of-state witnesses who had testified at the previous trials. As to the transcripts, we note that Defendant had access to tape recordings of the previous trials and has failed to demonstrate that he was prejudiced by lack of access to a written transcript. See Commonwealth v. Parker, 718 A.2d 1266, 1270 (Pa.Super.Ct.1998)

; cf. State v. Bartlett, 109 N.M. 679, 682, 789 P.2d 627, 630 (Ct.App. 1990) (concluding defendant's due process rights would not be violated by allowing retrial despite loss of some evidence).

{15} We also note—and are more troubled by—Defendant's claims regarding the out-of-state witnesses and the appointment of a public defender. However, Defendant made no motion on these matters until July 25, 1997—three months after his original request for a continuance and less than two weeks before trial. In denying the motion, the district court admonished Defendant for not formally raising these remediable matters earlier. Cf. Bartlett, 109 N.M. at 682,

789 P.2d at 630 (noting that where less drastic remedies are available, "a claim of violation of due process is less persuasive"). We do not determine this ruling to have been in error.

{16} There were...