State v. Foster

• Decision Date: 16 May 2003
• Docket Number: No. 23,225.,23,225.
• Citation: 75 P.3d 824,2003 NMCA 99,134 N.M. 224
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. William FOSTER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

75 P.3d 824

134 N.M. 224

2003 NMCA 99

STATE of New Mexico, Plaintiff-Appellee, v. William FOSTER, Defendant-Appellant.

No. 23,225.

Court of Appeals of New Mexico.

May 16, 2003.

Certiorari Denied August 7, 2003.

Patricia A. Madrid, Attorney General, Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Santa Fe, NM, Thomas DeMartino, Assistant Public Defender, Albuquerque, NM, for Appellant.

Certiorari Denied, No. 28,100, August 7, 2003.

OPINION

CASTILLO, Judge.

{1} This is an interlocutory appeal from the district court's denial of Defendant's motion to dismiss on double jeopardy grounds based on being twice tried in magistrate court for the same offense. The appeal presents us with three questions certified by the district court: (1) whether a district court in a trial de novo may review trial transcripts or other evidence of proceedings in magistrate court, a court not of record, in ruling on a pretrial motion to dismiss on grounds of double jeopardy; (2) whether transcripts are papers or exhibits under Rule 6-703(F) NMRA 2003; and (3) whether the double jeopardy clause is violated when a defendant is tried twice without an order declaring a mistrial and without a finding of manifest necessity.

{2} We hold that under the circumstances of this case, the district court may review the trial transcripts insofar as is necessary to resolve the double jeopardy issue. We determine that trial transcripts are not papers but may be exhibits, if properly admitted in the court below. We also determine that the magistrate court's failure to enter a written order granting a mistrial does not give rise to a double jeopardy claim so long as the record adequately establishes that the magistrate court properly granted a mistrial. We vacate the district court's order denying Defendant's motion to dismiss and remand for further proceedings on the issue of manifest necessity.

I. BACKGROUND

{3} On November 5, 2001, Defendant was tried before a jury in magistrate court for aggravated driving under the influence of intoxicating liquor or drugs (DWI) (second offense) in violation of NMSA 1978, § 66-8-102 (1999). During the trial, defense counsel asked the State's witness, Deputy Brian Johnston, "Isn't it true Deputy, that 90% of the people you arrest for DWI are Navajo?" The magistrate court sustained the State's objection to the question. A bench conference was then held during which the State asked for a mistrial. Immediately following the bench conference, the magistrate court orally declared a mistrial. The following day, the State requested the magistrate court to order a mistrial, find manifest necessity, and set a second jury trial date. In his response opposing the State's motion, Defendant requested a hearing. The magistrate court at some point handwrote "Motion Granted" on the State's motion and "Denied" on Defendant's motion.

{4} The second trial began on December 7, 2001. After swearing in jurors, conducting voir dire, and exercising challenges, but prior to announcing the selected jurors, defense counsel renewed her objection to a second trial. A discussion ensued between defense counsel and the prosecutor as to whether alternatives to a mistrial were considered by the magistrate court and whether the court made a finding of manifest necessity. The magistrate court overruled Defendant's objection and the second trial proceeded. Defendant was subsequently convicted of aggravated DWI. He appealed to the district court for a trial de novo and then filed a pretrial motion with the district court to dismiss the criminal complaint on double jeopardy grounds. Defendant attached to the motion an uncertified transcription of portions of the first trial testimony, including the bench conference and the magistrate court's oral declaration of a mistrial. Also attached were copies of the mistrial motions filed by both parties in magistrate court.

{5} The district court conducted two hearings on Defendant's motion to dismiss. There was extensive discussion about whether the district court had jurisdiction to review the pretrial motion and, if so, what materials constituted a reviewable record on appeal. Particularly, the district court had concerns as to whether it could review trial transcripts, tapes of the proceedings, or motions not requested by the magistrate court to be in writing. It also questioned its jurisdictional authority to review a grant of mistrial, a discretionary function of the magistrate court, during an appeal de novo. The district court ultimately concluded that trial transcripts are not part of the record on appeal under Rule 6-703(F), are not papers, and were not admitted as exhibits. See Rule 6-703(F)(2), (4). The district court denied Defendant's motion, finding that the district court cannot review events that transpired in the magistrate court. Defendant appeals the denial of his motion. Because it considered the issues presented by the motion as potentially dispositive of the case, the district court certified the three questions stated above and stayed the trial de novo pending the outcome of this appeal.

II. DISCUSSION

A. Standard of Review

{6} We review de novo questions of law concerning the interpretation of Supreme Court rules and the district court's application of the law to the facts of this case. State v. Gage, 2002-NMCA-018, ¶ 14, 131 N.M. 581, 40 P.3d 1025 ("Interpretation and application of the law are subject to a de novo review.") (internal quotation marks and citation omitted); State v. Wilson, 1998-NMCA-084, ¶ 8, 125 N.M. 390, 962 P.2d 636 (applying a de novo standard to its review of the district court's application of a Supreme Court rule).

B. Transcripts and Other Evidence Reviewable From a Court Not of Record in a Trial De Novo

1. Double Jeopardy Defense

{7} The Double Jeopardy Clause of the United States Constitution and the New Mexico Constitution guarantees that no person shall be put in jeopardy twice for the same offense. U.S. Const. amend. V; N.M. Const. art. II, § 15. "Jeopardy attaches in a jury trial when the jury is empaneled and sworn." County of Los Alamos v. Tapia, 109 N.M. 736, 737 n. 1, 790 P.2d 1017, 1018 n. 1 (1990). If the trial is not completed, i.e., the trial court declares a mistrial and discharges the jury, the Double Jeopardy Clause prohibits a defendant from being placed in jeopardy again at a second trial for the same offense unless "there is a manifest necessity for the discharge of the first jury or ... the ends of public justice would be defeated by carrying the first trial to final verdict." State v. De Baca, 88 N.M. 454, 459, 541 P.2d 634, 639 (Ct.App.1975). Defendant acknowledges that he could have sought to prohibit the magistrate court from retrying him after the magistrate court denied his motion to dismiss. Defendant's failure to seek an extraordinary writ is not a waiver of his double jeopardy defense. See NMSA 1978, § 30-1-10 (1963), see also State v. Sedillo, 88 N.M. 240, 242, 539 P.2d 630, 632 (Ct.App.1975)

(holding that defendant's failure to object to a declaration of mistrial was not a waiver of his double jeopardy defense and the defense could be raised on appeal after he was retried for the same offense). We conclude that the double jeopardy defense is available to Defendant in his de novo appeal.

2. De Novo Appeal and Appeal on the Record

{8} The question before us concerns the extent of the district court's review, during a de novo appeal, of a record on appeal when it considers a pretrial motion claiming a violation of double jeopardy in a court not of record. Because of its importance to this case, we briefly address the difference between an appeal of record and a de novo appeal. The New Mexico Constitution vests district courts with "appellate jurisdiction of all cases originating in inferior courts." N.M. Const. art. VI, § 13. In the exercise of that appellate jurisdiction, "trial shall be had de novo unless otherwise provided by law." N.M. Const. art. VI, § 27. Under state statute, "[a]ll appeals from inferior tribunals to the district courts shall be tried anew in said courts on their merits, as if no trial had been had below, except as otherwise provided by law." NMSA 1978, § 39-3-1 (1955).

{9} Whether a lower court is of record determines whether a trial will be de novo. See State v. Trujillo, 1999-NMCA-003, ¶¶ 4-5, 126 N.M. 603, 973 P.2d 855

(explaining that appeals from the metropolitan court may be either de novo or on the record depending on the type of case). If an appeal is on record, the district court acts as a typical appellate court reviewing the record of the lower court's trial for legal error. Id. ¶ 4. The magistrate court, unlike the metropolitan court, is not a court of record. Compare NMSA 1978, § 35-1-1 (1968) (establishing magistrate courts as courts not of record) with NMSA 1978, § 34-8A-6(B), (D) (1993) (establishing metropolitan courts as courts of record for civil actions and certain criminal actions). Therefore, appeals from magistrate courts are de novo. NMSA 1978, § 35-13-2(A) (1996) ("Appeals from the magistrate courts shall be tried de novo in the district court."); Rule 6-703(J) ("Trials upon appeals from the magistrate court to the district court shall be de novo."). In a de novo appeal, in contrast to appeals on the record, a district court conducts a new trial as if the trial in the lower court had not occurred. Trujillo, 1999-NMCA-003, ¶ 4,

126 N.M. 603,

973 P.2d 855.

3. The District Court Must Hear the Double Jeopardy Claim

{10} The State argues that it is impossible for the district court to review Defendant's double jeopardy claim because, in a trial de novo, it is as though the proceedings in the lower court below never happened. The district court's only option, the State contends, is to conduct a full trial on the merits without considering the double jeopardy claim. We disagree. The State provides no...