State v. Lucero

Decision Date07 May 1999
Docket Number No. 169, No. 170., No. 168, No. 19
Citation127 N.M. 672,986 P.2d 468
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Vincent LUCERO, Anita Guilez, and Gilbert Salcido, Defendants-Appellants.
CourtCourt of Appeals of New Mexico

Patricia A. Madrid, Attorney General, Steven S Suttle, Assistant Attorney General, Santa Fe, NM, for appellee.

Phyllis H. Subin, Chief Public Defender, Susan Gibbs, Assistant Appellate Defender, Santa Fe, NM, for Guilez & Salcido, appellants.

Jesse R. Cosby, Roswell, NM, for Lucero, appellant.

Certiorari Denied, No. 25,784, July 15, 1999.

OPINION

BUSTAMANTE, J.

{1} Vincent Lucero, Anita Guilez, and Gilbert Salcido (referred to collectively as Defendants) each appeal their convictions for one count of receiving stolen property over $2500, in violation of NMSA 1978, § 30-16-11(G) (1987). Defendants were tried jointly in a second trial, after the first proceeding ended in a mistrial. Defendants' appeals were consolidated by this Court. Defendants raise the following issues on appeal: (1) whether double jeopardy barred a retrial after the mistrial; (2) whether the trial court erred in failing to grant a mistrial as a result of the prosecutor's attempt to introduce evidence of an unrelated crime; (3) whether the trial court erred in refusing to allow Defendants to cross-examine the prosecutor's informant about an alleged forgery; (4) whether the trial court's comment on Defendants' admission of a photograph exhibit deprived Defendants of a fair and impartial trial; and (5) whether the trial court erred in ordering Defendants to pay restitution in an amount representing the full retail value of the merchandise recovered. We affirm.

I. FACTS

{2} Randall Matlock, manager of J.C. Penney in Roswell, initiated an investigation after he noticed that shipments to his store were consistently missing merchandise. About the same time, Detective Clifton Frosch of the Roswell police department received information from an anonymous caller that Kenneth Allison, a delivery truck driver for Merchant's Freight Company, was making frequent deliveries to a Roswell residence belonging to Defendants Guilez and Salcido. Detective Frosch and other officers followed Allison's truck to this residence and observed Allison unloading several boxes. After Allison drove away, he was stopped and arrested. The police determined that Allison had been embezzling J.C. Penney merchandise from his employer. During a search incident to the arrest, officers also found cocaine in Allison's hat band.

{3} Detective Frosch obtained a search warrant and conducted a search of Guilez's and Salcido's residence, seizing several boxes of clothing. Lucero was Guilez's third cousin and occasionally stayed with Guilez and Salcido. All three Defendants were arrested and charged with receiving stolen property over $2500. Matlock participated in cataloging the seized items and identified most of the seized property as the missing J.C. Penney merchandise.

{4} Detective Frosch and the prosecutor agreed to reduce Allison's sentence if he informed them about Defendants' participation in receiving the J.C. Penney merchandise. According to Allison, in exchange for his testimony he pleaded guilty to one misdemeanor, one petty misdemeanor, twelve fourth-degree felonies and six third-degree felonies. He received a six-year sentence, with all but 364 days suspended, and an agreement that the sentence could be served on work release. Ultimately, Detective Frosch decided the State would not prosecute Allison for any crimes arising out of the distribution of stolen J.C. Penney merchandise to persons other than Defendants.

{5} The case was first brought to trial on October 15, 1997. At the beginning of the trial, defense counsel received a report from the Dexter police, indicating that Yolanda Alvarez had delivered two boxes of clothing to the police on October 9, 1996, which she claimed she received from Allison. The prosecutor stated that he had not seen the Dexter police report prior to that morning of trial. Defendants moved for a continuance to subpoena and interview Alvarez. The motion was to be heard during the noon recess of the first day of trial, outside the presence of the jury.

{6} Prior to the motion hearing, Dexter Police Chief Carlos Barela and Detective Frosch both testified. Chief Barela testified that he participated in a consent search of Alvarez's home and a warrant search of Allison's mother's home in Dexter. He stated that he received other property from Antonio Salaz, who claimed to have received the property from Allison. He indicated that all of the property was turned over to Detective Frosch at the Roswell police department in October 1996.

{7} During Detective Frosch's testimony, defense counsel discovered that there were two search warrants that had not been disclosed which were executed in an attempt to locate other missing merchandise in the Dexter area. The search warrants revealed witnesses who potentially knew of other criminal conduct by Allison. Detective Frosch testified that he provided the warrant, its return, and the inventory to the district attorney's office. Apparently, the prosecutor had approved the affidavits filed in support of the search warrants. Detective Frosch stated that he did not disclose this evidence because he did not believe it pertained to Defendants' case.

{8} Defendants moved for a mistrial as a result of the State's failure to disclose the search warrants and returns. Defendants asserted that both situations involved Allison's embezzlement of J.C. Penney merchandise from his employer and his disposal of that merchandise. Defendants also argued that this information bore on Allison's credibility because it rebutted Allison's claim that only Defendants had received stolen property from him. The trial court continued the trial to allow defense counsel to interview and subpoena these potential witnesses. Because of Matlock's unavailability the following day, the trial court allowed him to testify before the jury was excused.

{9} When the trial resumed the following day, October 16, 1997, the State disclosed that during the overnight continuance it discovered a second statement in Allison's file at the district attorney's office. The statement had been taken on October 31, 1996, by Detective Frosch. Defendants moved for a mistrial due to the late disclosure. Defendants argued that the statement was inconsistent with Allison's other statements concerning who originated the idea of trading merchandise for cocaine, and to whom else Lucero gave or sold merchandise. It also included for the first time, the name of another Dexter resident, Irma Medrano, who allegedly purchased merchandise from Allison. The trial court read Allison's statement, noting that it was the statement upon which his plea was based, and granted Defendants' motion for a mistrial.

{10} Prior to the retrial, Defendants moved to dismiss the charges on double jeopardy grounds. The trial court denied the motion, finding that although it could not condone the discovery violation, it did not rise to the level of bad faith and was not calculated to put the State in a better position to convict. The case proceeded to a second trial. At the second trial, Lucero testified that he gave Allison permission to store his personal property at the house because Allison claimed he was getting a divorce. Guilez and Salcido testified that they gave both Lucero and Allison permission to store their personal property at their home. All three Defendants denied any knowledge that Allison was storing stolen property at the house. Defendants were convicted of receiving stolen property over $2500. We summarize additional facts as we address the specific issues on appeal.

II. DISCUSSION
A. DOUBLE JEOPARDY

{11} Defendants contend that after the first trial ended in mistrial, retrial should have been barred due to prosecutorial misconduct. Before addressing the State's preservation argument, we take this opportunity to clarify how the New Mexico standard on the double jeopardy bar to retrial for prosecutorial misconduct evolved.

1. How the New Mexico Standard Evolved

{12} Like State v. Breit, 1996-NMSC-067, ¶ 14, 122 N.M. 655, 930 P.2d 792, this case "focusses on trials that are terminated, nullified, or reversed at the defendant's behest, not mistrials that are declared sua sponte by the court." In this regard, we note that the parties' citations to case law, both at the trial level and on appeal, concerning the "manifest necessity" standard for mistrials declared sua sponte by the trial court are inapplicable to the facts of this case. See, e.g., State v. Messier, 101 N.M. 582, 585, 686 P.2d 272, 275 (Ct.App.1984)

(determining whether trial court's sua sponte declaration of a mistrial was a manifest necessity such that retrial is not barred). Here, Defendants moved for a mistrial in the first trial, and then moved for dismissal on double jeopardy grounds because of prosecutorial misconduct at the first trial.

{13} The general rule is that "[a] motion for mistrial by defendant ordinarily removes the barrier to reprosecution. An exception occurs where the motion is the result of prosecutorial overreaching." State v. Mazurek, 88 N.M. 56, 59, 537 P.2d 51, 54 (Ct.App.1975) (citation omitted). Prior to Breit, New Mexico based its double jeopardy standard, as announced in State v. Day, 94 N.M. 753, 757, 617 P.2d 142, 146 (1980), on "an amalgam of various pronouncements by the United States Supreme Court." Breit, 1996-NMSC-067, ¶ 26, 122 N.M. 655, 930 P.2d 792. Under the standard adopted in Day, the double jeopardy bar to retrial is triggered where "the prosecutor engaged in any misconduct for the purpose of precipitating a motion for a mistrial, gaining a better chance for conviction upon retrial, or subjecting the defendant to the harassment and inconvenience of successive trials." Day, 94 N.M. at 757, 617 P.2d at...

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