State v. Gutierrez, 33,296.

• Citation: 333 P.3d 247
• Decision Date: 07 August 2014
• Docket Number: No. 33,296.,33,296.
• Court: Supreme Court of New Mexico
• Parties: STATE of New Mexico, Plaintiff–Respondent, v. Julian GUTIERREZ, Defendant–Petitioner.

333 P.3d 247

STATE of New Mexico, Plaintiff–Respondent,

v.Julian GUTIERREZ, Defendant–Petitioner.

No. 33,296.

Supreme Court of New Mexico.

Aug. 7, 2014.

Daniel R. Lindsey, P.C., Daniel R. Lindsey, John L. Collins, Jr., Clovis, NM, for Petitioner.

Gary K. King, Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM for Respondent.

OPINION

DANIELS, Justice.

{1} This case involves factually related issues of the boundaries between proper and improper prosecutorial conduct in dealing with recalcitrant witnesses and of the circumstances in which a mistrial and retrial may take place without violating constitutional double jeopardy protections when a witness does not appear for trial. Following federal double jeopardy principles in United States Supreme Court precedent, we conclude that a prosecution witness's failure to appear for Defendant's trial did not constitute manifest necessity for granting a mistrial after a jury had been selected and sworn to hear his case. Because empaneling a new jury and retrying Defendant would violate his double jeopardy protections under the United States Constitution, we remand to the district court with instructions to dismiss. Because of our holding, we do not decide any issues relating to the scope of the Double Jeopardy Clause of the New Mexico Constitution or whether the prosecution team inappropriately threatened the witness.

I. BACKGROUND

{2} A Curry County grand jury indicted Defendant Julian Gutierrez on three counts of criminal sexual contact of a minor, contrary to NMSA 1978, Section 30–9–13(B)(2)(a) (2003), based on the testimony of Defendant's daughter that he touched or pinched her breasts on several occasions when she was fifteen years old. At the time of the alleged incidents, Defendant was estranged from his daughter's mother, who lived in Lubbock, Texas. After Defendant's indictment, his daughter moved out of their home to stay next door with her paternal grandparents.

{3} On Monday morning, February 23, 2009, the first scheduled day of trial, Defendant informed his attorney that he had been provided with a statement written by his daughter that related to a recent visit by prosecution representatives to her school. In its entirety, the statement said,

The da was telling me that if I didnt go to the court they could take my son away. and she was try to say that my dad touched me 6 time and I had told her that I told the oaisis people that he just did it 3 time and that we were just playing. and she said that 6 times is closer to 3 time and she told my principle and counsler that if it was OK for them to pick me up tuesday morning at 8:30 and I told them that they have to ask my parents first and she told me that they dont. and she had also made me put my phone on the desk. She would not allow anyone in the room with us. They were telling me that my grandparents house wasnt a good place for me to be staying. Was telling me that I could get charges on me if I change my story. and that I have someone to think about now that I have to make a good choice of what I want.

February 20, 2009

/s/ Naomi Gutierrez

When defense counsel asked for a hearing on the new revelations, the prosecutor admitted not having disclosed to the defense anything about the pretrial encounter at which the daughter attempted to recant her grand jury testimony. After initially taking the position that she did not have to do so, the prosecutor ultimately agreed to provide the defense with an audio recording of the incident. The district court refused a defense request to conduct an immediate hearing on the matter, proceeded to select and swear a jury to hear the case, and recessed for the day, with testimony to begin the next day, Tuesday, February 24.

{4} The next morning, when Defendant's daughter did not appear to testify and the State could not locate her, the State asked the district court to make a finding of manifest necessity and declare a mistrial. Defendant objected to granting a mistrial and moved instead to dismiss with prejudice on the ground that the State's officers committed prosecutorial misconduct in inappropriately threatening the daughter during their private encounter at the school. Without ruling on the motions or proceeding further with the trial, the court issued a bench warrant for the daughter's arrest for failure to appear for trial and, despite the defense's argument that it was ready to go forward that day, temporarily released the jury.

{5} At a brief hearing two weeks later, the daughter still not having been located, the district court declared a mistrial over the objection of the defense and permanently discharged the jury. The court rejected Defendant's argument that determining manifest necessity required considering the “intertwined” matter of prosecutorial misconduct in the encounter with the daughter, saying that it would address the propriety of that encounter separately “at a later date.” The court made no findings that Defendant contributed in any way to the daughter's nonappearance for trial or that the prosecution was unaware its witness might not appear for trial when the jury was sworn, finding simply that there had been “a jury fully empaneled and sworn and the victim having been served a subpoena then failed to appear” and concluding that there was “manifest necessity for retrial.”

{6} After the daughter had been arrested on the bench warrant two weeks later, the court held hearings on Defendant's motions to dismiss for prosecutorial misconduct and to preclude retrial for lack of manifest necessity justifying the mistrial. Evidence presented at the hearings included an audio recording of the school encounter three days before trial, the live testimony of the daughter, and the live testimony of the police detective who had participated with the prosecutor and the district attorney's victim advocate in questioning the daughter at her school.

{7} The daughter, who appeared with her separate attorney, testified that a few days before the scheduled trial the State's officials had her removed from class and taken to “the officer's room ... inside the main office” where the door was locked and her cell phone was removed from her immediate possession. Her testimony focused on threats by the State's officers to file perjury charges against her and take away her young son after she told the prosecutor that her mother had influenced her to make false charges against her father. She testified that the threats scared her and caused her not to show up for the jury trial several days later. After the school encounter, she wrote and delivered to her own lawyer the letter that was delivered to defense counsel the morning of jury selection.

{8} The detective admitted participating in the confrontation at the school at the request of the lead prosecutor and admitted that the State's representatives raised questions about what might happen to the daughter's baby but denied that anything they said constituted a threat. His testimony emphasized that the State's officers were trying to get the daughter to tell the truth. Neither the prosecutor nor the district attorney's victim advocate, the other two participants in the school questioning, testified.

{9} Although the State had alleged in its brief requesting a mistrial that Defendant had been in some way responsible for the nonappearance of his daughter, the record contains no substantial evidence supporting the allegation. The daughter testified that her father had nothing to do with her not showing up for court and that the only reason she did not appear was because the prosecutor threatened to take her son away. In addition, a filed affidavit by a boyfriend of the daughter represented that it was his idea alone to take her to Texas after she told him tearfully “that she wanted to leave” because the prosecution had threatened “to take her child away” and “charge her with perjury if she did not testify the way they wanted.”

{10} The most objective and complete evidence of the school encounter introduced at the hearing was the verbatim audio recording created by the State's officers. It contained corroboration for parts of what had been described in the testimony, both the friendly admonitions to tell the truth and the warnings that the daughter could be prosecuted for perjury and that her two-year-old son could be taken from her if she did not appear at trial and testify consistently with her previous grand jury testimony.

{11} The audio recording begins with the prosecutor advising the daughter that “the reason we came here is because you didn't show up for our meeting” and confirming that the daughter had received her subpoena and continues with the district attorney's victim advocate reminding the daughter of her previous warnings that she “had to show up” in court if she received a subpoena. After the prosecutor said she wanted to go over the expected testimony, the daughter attempted to recant her prior allegations, saying that she had fabricated her grand jury testimony because her mother had influenced her to do so.

Daughter: Actually, my mom's the one that told me to tell ya'll that.

Prosecutor: That you were going to get into trouble?

Daughter: No. That, to tell ya'll what happened.

Prosecutor: Did your mom tell you to tell the truth?

Daughter: Mmm, no. She just said tell them that. She didn't say to tell them the truth.

Prosecutor: Okay what is the truth?

Daughter: That he didn't do nothing.

Prosecutor: What do you mean he didn't do nothing?

Daughter: He didn't touch me or nothing.

Prosecutor: Okay. You gave your statement under oath at the grand jury that [Defendant] did touch you.

Daughter: I know, because my mom had told me to.

....

Prosecutor: So when you talked to Mr. Baskett at The Oasis [Children's Advocacy Center], were you lying?

Daughter: M-hm, because my mom had told me. It's on the messages that the detective has.

....

Prosecutor: So what is the truth?

...