State v. McClaugherty, 24,409.

• Decision Date: 15 February 2007
• Docket Number: No. 24,409.,24,409.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Charles Isaac McCLAUGHERTY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

157 P.3d 33

2007 NMCA 041

STATE of New Mexico, Plaintiff-Appellee, v. Charles Isaac McCLAUGHERTY, Defendant-Appellant.

No. 24,409.

Court of Appeals of New Mexico.

February 15, 2007.

Certiorari Granted, No. 30,272, April 2, 2007.

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

Freedman Boyd, Daniels Hollander & Goldberg P.A., Zachary A. Ives, Albuquerque, NM, Jones Day, John D. Cline, San Francisco, CA, for Appellant.

OPINION

WECHSLER, Judge.

{1} Our Supreme Court reversed Defendant's convictions in State v. McClaugherty, 2003-NMSC-006, 133 N.M. 459, 64 P.3d 486, for the State's improper use of hearsay evidence in the course of cross-examining Defendant. Id. ¶¶ 3, 16, 35. The trial prosecutor asked Defendant to comment on alleged statements witnesses made to police relating Defendant's admissions that he shot a gun during the incident. Id. ¶¶ 11, 14. On remand to the district court, Defendant promptly moved to bar retrial for prosecutorial misconduct under State v. Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792.

{2} The district court originally dismissed the indictment against Defendant, finding that the prosecutor had misrepresented the contents of the statements. The State timely appealed the dismissal, but later sought to dismiss its appeal and reopen the motion hearing to allow the presentation of other evidence. The district court granted the State's motion to reopen, heard more evidence in a succession of hearings, vacated its dismissal, and ordered a new trial in the case. From this order, Defendant now appeals. First, he asserts that NMSA 1978, § 39-1-1 (1953), operated to deny the State's motions to dismiss the appeal and to reopen the evidence that were pending before the district court by operation of law because more than thirty days elapsed from their filing to their resolution. Because Defendant does not appeal the grant of the State's motion to reopen, we do not address whether that motion was properly granted. Second, Defendant argues that pursuant to the New Mexico Constitution and Breit, the district court erred in allowing retrial. We affirm the district court.

FACTS AND PROCEDURAL BACKGROUND

The Trial and Appeal to the Supreme Court

{3} Defendant was tried and convicted of a number of serious crimes, including the first-degree (deliberate and felony) murder of Ricky Solisz. The critical issue was whether Defendant "shot," and the only direct evidence of it came from the State's informant. McClaugherty, 2003-NMSC-006, ¶¶ 9-10, 133 N.M. 459, 64 P.3d 486. Defendant was the last witness to testify at trial and denied on direct examination that he was armed or fired a gun. Id. ¶ 10.

{4} In the cross-examination, the prosecutor, Kenny Montoya, questioned Defendant about his conversations with Sarah Tucker and Sherri Goen immediately after the shooting. When Defendant testified that he told them "I was there and I ran," the prosecutor asked, "Is that all you told them?" At that point, the prosecutor asked Defendant, "You're aware I've got statements?" and "[W]hy are they lying about you then?" The prosecutor then asked Defendant if he would be surprised that Tucker's and Goen's statements to the police indicated that Defendant admitted to them that he shot during the incident. This questioning continued through defense objections that the prosecutor was eliciting extrinsic evidence and hearsay.

{5} During re-direct examination, Defendant disagreed with the prosecutor's version of those statements and testified that he had read the women's statements and that they contained references to his denying any shooting. The prosecutor objected during the re-direct examination, arguing to the district court that defense counsel was eliciting a lie and stating, "[Defendant] said he shot. Do you want me to let that go? . . . They both admit that he said he shot at the guys."

{6} Neither Tucker nor Goen was called to testify at trial, and the statements that they made to the police were never admitted into evidence or presented to the district court. The State did not present rebuttal evidence, and the trial ended. The alleged "admissions" were not mentioned during closing arguments or at any other time during the trial.

{7} The Supreme Court reversed Defendant's convictions and held that the prosecutor's cross-examination constituted an impermissible use of hearsay that sufficiently prejudiced the course of the trial to an extent that required reversal. Id. ¶¶ 3, 16, 35. The Supreme Court remanded the case for a new trial. Id. ¶ 35.

Motion to Bar Reprosecution and the State's Appeal

{8} Upon remand for trial from the Supreme Court, Defendant filed a motion to impose a double jeopardy bar to retrial, alleging that the prosecutor had committed misconduct sufficient to trigger Defendant's rights to be free from double jeopardy under the New Mexico Constitution and Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792. Defendant alleged misconduct insofar as the prosecutor improperly used hearsay in the prosecutor's cross-examination and grossly misrepresented the contents of the statements in his questions. The State denied that the prosecutor had acted in "willful disregard" of the consequences of his actions.

{9} At the May 6, 2003 hearing on Defendant's motion to bar retrial, Defendant introduced the statements Tucker and Goen made to the police, which were admitted as evidence by the district court. The State did not present witnesses or evidence at this hearing. The State conceded that the trial questioning by the prosecutor based on the witness statements was improper, but argued that in the context of the entire trial, such misconduct was isolated, was based on a good faith interpretation of the statements, and consequently did not merit barring reprosecution of Defendant under Breit.

{10} The district court reviewed the police statements given by Tucker and Goen and the trial transcript. It found that their statements were that Defendant "did not shoot and was not the shooter" and that the prosecutor had "grossly misrepresented" the content of the statements to the district court during trial. The district court concluded that had it known of the extent of the State's misconduct at the time, it would have granted a mistrial. The district court found that the prosecutor "was actually aware, or must be presumed to have been aware, that his misconduct had the potential to result in a mistrial or a reversal," and that he had made a "conscious and purposeful decision to dismiss any concern" of such a result. The district court granted Defendant's motion, barred reprosecution, and dismissed the indictment with prejudice. The State timely filed its notice appealing this order on May 12, 2003.

The State's Effort to Reopen the Evidence

{11} On May 27, 2003, the State filed a motion to dismiss the appeal and a motion to reopen hearing as to barring of prosecution. It offered the testimony of the trial prosecutor that it stated "will be in direct contrast to the Court's findings in its Order of Dismissal."

Remand by the Court of Appeals for Action on the State's Motions

{12} During this same period, Defendant applied to this Court for a dismissal of the State's appeal because the State had not timely filed its docketing statement. See Rule 12-208(B) NMRA. We denied the motion to dismiss the appeal and remanded to the district court, directing that if the district court denied the pending motions, the State could file a docketing statement if it still desired to pursue its appeal. This Court did not comment on the effect, validity, or merits of the pending motions.

The Reopened Hearing

{13} On July 25, 2003, after the State filed its notice of appeal and subsequent motions, and following remand from this Court, the district court granted the State's motions to dismiss the appeal and reopen the case, stating that it had discretion "to hear any additional matters that may not have been raised initially when the motion hearing was heard" on May 6. Defendant objected to this ruling, and the district court commenced to take evidence.

{14} The trial prosecutor testified that his questioning of Defendant was based on Goen's statement of June 19, 1999, as well as a number of other unidentified statements. He agreed that his questioning of Defendant referred to "copies of statements" and that there was no statement by either Tucker or Goen other than the June 19 statements that was ever reduced to writing. He stated that his question — "So why are they lying about you then?" — referred to "all the statements I had in my hand," including other witnesses than Tucker and Goen. He stated that he resumed his cross-examination after Defendant's objection and a bench conference, asking Defendant, "[W]ould it surprise you to hear that [Tucker] gave a statement to the police 6/19/99" and later asking, "How about your roommate, Sherri Goen? Does it surprise you that she also made the same statement[?] . . . That you admitted shooting? . . . Bragged about it?"

{15} The prosecutor testified that Tucker's description of the night of the fight and its inconsistencies gave him his basis for his question about Tucker. He pointed out that Goen's June 19 statement indicated that Defendant "said he shot them," but conceded that Goen immediately stated to police, "[n]ot him but the guys that are with him," and she then specifically denied that Defendant himself admitted shooting the victim. However, the prosecutor testified that he based his questions on the statement Goen gave in his office in which she said Defendant "bragged about it."

{16} The prosecutor recalled the defense objection and bench conference. He stated, "I think [Defendant's trial attorney] was saying that I was eliciting hearsay and I said I wasn't. I wasn't going to admit the evidence. I just wanted — and [the district court] actually told me how to form it in a better...