State v. Hildreth, S-1-SC-37558

Case DateFebruary 09, 2022
CourtSupreme Court of New Mexico

STATE OF NEW MEXICO, Plaintiff-Respondent,

HENRY HILDRETH JR., Defendant-Petitioner.

No. S-1-SC-37558

Supreme Court of New Mexico

February 9, 2022


Bennett J. Baur, Chief Public Defender Caitlin C. M. Smith, Assistant Appellate Defender Santa Fe, NM for Petitioner

Hector H. Balderas, Attorney General Emily C. Tyson-Jorgenson, Assistant Attorney General Santa Fe, NM for Respondent




{¶1} This case presents a question of first impression: whether judicial conduct at trial may result in a bar to retrial under the double jeopardy clause of the New Mexico Constitution, and if so, whether the district court judge's conduct in this case bars retrial. See N.M. Const. art. II, § 15 (prohibiting any person from being "twice put in jeopardy for the same offense"). We hold that judicial conduct may result in a bar to retrial under the New Mexico Constitution and that the judicial conduct in this case bars Defendant's retrial.


A. The District Court Proceedings

{¶2} A criminal complaint was filed in the district court on September 9, 2016, charging Defendant Henry Hildreth, Jr., with felony aggravated battery against a household member with great bodily harm, misdemeanor aggravated battery against a household member without great bodily harm, and unlawful taking of a motor vehicle. NMSA 1978, § 30-3-16(B), (C) (2008, amended 2018); NMSA 1978, § 30-16D-1 (2009). At the arraignment the following month, Defendant was found to be indigent, and Steven Seeger was appointed to represent him. Trial was set for March 14, 2017, on a trailing docket.

{¶3} The State belatedly filed its witness list on March 1, 2017, and eight days later, on March 9, 2017, filed an amended witness list to correct an address. That same


day, nine days after the discovery deadline and five days before trial, the State provided Defendant with a CD containing audio recordings of statements made by the State's witnesses and Defendant in interviews with the police.

{¶4} The day after receiving the CD, on Friday, March 10, 2017, Seeger filed a motion to continue the jury trial. Seeger argued that he needed more time to review the CD in order to adequately prepare for trial and that, without more time to prepare, Defendant would be denied his right to effective assistance of counsel. That same day, the parties appeared before the judge for a pretrial conference.

{¶5} At the pretrial conference, the judge denied the motion for continuance without hearing any argument. From that point forward, Seeger remained determined to get a continuance, and the judge remained committed to proceed with trial as scheduled. Their intransigence forms the root of the issue in this case.

{¶6} In response to the judge's denial of his motion to continue, Seeger told the judge that he would not be ready for trial. He stated that he would "be present but not participate." The judge responded that "[i]f that is true, then [Defendant] would have . . . excellent grounds for appeal on incompetency of counsel." The judge told Seeger that if he objected to the State's untimely discovery, he could file a motion, and it would be heard before trial. Seeger did just that.

{¶7} Seeger filed a motion for sanctions on March 13, 2017, the day before trial, asking the judge to prevent any of the State's identified witnesses from testifying. In its written response, the State acknowledged that its discovery was late. With respect


to the CD, the State asserted that it was not within the State's "control" until March 9, 2017, and it was made available to Seeger that same day. The State asserted that sanctions were not appropriate, but if the judge was inclined to grant any sanctions, the less punitive sanction of a continuance instead of preventing any of the State's witness from testifying was appropriate.

{¶8} At the motion hearing, held on March 14, 2017, the first day of the trial, Seeger argued that due to the untimely discovery disclosures, the State should be prohibited from calling any witnesses. With regard to the CD, Seeger asserted that it might contain a "prior statement of [a] witness, and [that he had] not had an opportunity to listen to it to see whether it ha[d] potential material for cross-examination" or exculpatory information. In response to a question from the judge regarding whether the State intended to actually use the CD during trial, the prosecutor said, "it's nothing that the State would have presented today." The State then again requested that if sanctions were imposed, the sanction be a continuance rather than exclusion of its witnesses. The judge denied the motion and imposed no sanctions. The trial then started.

{¶9} During the trial, Seeger refused to participate in voir dire, challenge any jurors, examine any witnesses, or participate in the selection of jury instructions. Seeger also declined to proffer an opening statement or a closing statement. However, he made three motions for mistrial-all based on assertions of ineffective


assistance of counsel resulting from the State's late disclosures, and, consequently, his asserted inability to prepare for trial.

{¶10} Seeger first moved for a mistrial shortly after the jury was sworn in. The judge immediately denied the motion and the trial proceeded. The State then called two of its three witnesses before the lunch hour. These were the victim and an eyewitness to the alleged aggravated battery. Seeger did not cross-examine either one.

{¶11} After the lunch break, Seeger again moved for a continuance or mistrial based on the late discovery. Seeger told the judge that during lunch he reviewed the writing on the CD and discovered that it contained statements from the two witnesses who had testified that morning, another witness, and Defendant. Seeger argued that as a result of the State's late disclosures, he did not have a chance to listen to the CD or get the statements on the CD "transcribed to use [for] potential cross-examination." Seeger noted that he did not know what exculpatory information or prior inconsistent statements were on the CD and renewed his prior motion for a continuance or mistrial.

{¶12} The State's response was that the CD was handed over to Seeger on March 9, 2017, the day it was received at the district attorney's office. In response to questioning from the judge, however, the prosecutor confirmed that the police officer who investigated the case was in possession of the CD before he turned it in to the district attorney's office. Moreover, in a subsequent filing the prosecutor disclosed that the police officer's report describing the interviews and confirming


that they were recorded was received by the district attorney's office seven days after the offense, on June 30, 2016.

{¶13} The judge then turned back to Seeger and asked why he had not reviewed the CD in the intervening days between his receipt of it and the trial. Seeger answered that on the following day, he was either in court or in the process of reviewing the public defender cases of a contract attorney who had suddenly passed away so those cases could be reassigned to new attorneys. On the weekend, he continued reviewing the files and attended the viewing of his deceased colleague, and he had "no time" to review the CD the following Monday, the day before the trial. The judge denied the motions, concluding that there had been "no showing of prejudice to the court." Based on the prosecutor's concession that the CD had been in a State agent's possession, the judge also admonished the prosecutor that "[t]here is no distinction made between the agents of the State. The State is the State."

{¶14} Despite Seeger's efforts, the judge allowed trial to proceed. Before closing arguments, Seeger again moved for mistrial. And again, the judge denied his motion. The jury found Defendant guilty of felony aggravated battery against a household member with great bodily harm, and Defendant appealed to the Court of Appeals.

B. The Court of Appeals' Opinion

{¶15} In the Court of Appeals, "Defendant argue[d], and the State concede[d], that Defendant was denied his constitutional right to assistance of counsel." State v. Hildreth, 2019-NMCA-047, ¶ 1, 448 P.3d 585. Defendant also argued that "the


district court judge's conduct during trial should bar [Defendant's] retrial on double jeopardy grounds." Id.

{¶16} The Court of Appeals concluded that Defendant was denied his constitutional right to effective assistance of counsel and reversed Defendant's conviction. Id. The Court of Appeals reasoned that "Seeger's conduct rose to the level of a constructive denial of counsel sufficient to create a presumption of prejudice." Id. ¶ 14.

{¶17} Turning to Defendant's double jeopardy argument, the Court of Appeals acknowledged that "Seeger's adamant refusal to provide his client with a defense in a felony trial and the district judge's decision to proceed with such a trial in circumstances where some form of guilty verdict was not only a near certainty, but had no realistic chance of being upheld on appeal," created an "unusual and unseemly situation." Id. ¶ 16. Nevertheless, the Court of Appeals rejected Defendant's argument that retrial was barred under the three-part test set forth in State v. Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792. Hildreth, 2019-NMCA-047, ¶¶ 17, 20. The Court of Appeals determined that Breit had "no bearing" on the case and even if it did, "the district court judge . . . acted appropriately and appeared impartial throughout the proceedings." Id. ¶ 20. In analyzing whether the Breit test would be satisfied if it did apply, the Court of Appeals focused on the judge's demeanor, his tone of voice, and his efforts "to avoid interrupting Seeger." Id. Based on this analysis, the Court of...

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