State v. Robinson

• Decision Date: 28 January 2008
• Docket Number: No. 26,594.,26,594.
• Citation: 2008 NMCA 036,179 P.3d 1254
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Earl Scott ROBINSON, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

179 P.3d 1254

2008 NMCA 036

STATE of New Mexico, Plaintiff-Appellant, v. Earl Scott ROBINSON, Defendant-Appellee.

No. 26,594.

Court of Appeals of New Mexico.

January 28, 2008.

Certiorari Denied, No. 30,915, February 28, 2008.

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Santa Fe, NM, for Appellant.

John Bigelow, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

FRY, Judge.

{1} The State appeals from the district court's order disqualifying the Second Judicial District Attorney's Office from prosecuting this case. The present case stems from charges against Defendant for criminal sexual penetration, criminal sexual contact of a minor, contributing to the delinquency of a minor, and bribery of a witness. Defendant's trial on these charges resulted in a hung jury on several counts. Before the State could retry Defendant, he was indicted for solicitation to commit first degree murder of, among other victims, one of the two attorneys who prosecuted his original trial and initiated his retrial. Upon a motion from Defendant, the district court ruled that Defendant demonstrated an appearance of impropriety in the continued prosecution of the present case by either assistant district attorney (ADA) and disqualified the entire office of the District Attorney for the Second Judicial District (DA's Office) from retrying Defendant. Pursuant to the collateral order doctrine, the State properly appeals from this order of the district court. See State v. Gonzales, 2005-NMSC-025, ¶ 19, 138 N.M. 271, 119 P.3d 151 (confirming that the collateral order doctrine justifies immediate review of a trial court order disqualifying the prosecuting attorney).

{2} On appeal, the State argues that Defendant failed to demonstrate that the prosecuting ADAs had a conflict of interest or bias warranting disqualification and argues that Defendant's post-trial conduct should not form the basis for a finding of prosecutorial conflict or bias. Even assuming that the prosecutors had a disqualifying interest, the State argues that the district court erroneously disqualified the entire Second Judicial DA's Office from prosecuting Defendant. We agree with the State that the prosecuting attorneys did not have a disqualifying interest and, therefore, that there was no impropriety to impute to the remaining attorneys in the DA's Office. Accordingly, we reverse the district court and remand for further proceedings.

BACKGROUND

{3} In the Second Judicial District, Defendant was tried by the Crimes Against Children (CAC) Division of the DA's Office for three counts of criminal sexual contact of a minor, two counts of contributing to the delinquency of a minor, and one count each of criminal sexual penetration and bribery of a witness. The jury found Defendant not guilty of one count of contributing to the delinquency of a minor and the count of bribery of a witness. The district court directed a verdict on the second count of contributing to the delinquency of a minor, and the jury was unable to reach a verdict on the remaining charges.

{4} ADA Rachel Berenson first entered her appearance in Defendant's trial in August 2001, and, in April and May of 2002, ADA Berenson prosecuted the case along with her supervisor, ADA Lisa Trabaudo, also from the CAC Division of the Second Judicial DA's Office. On May 13, 2002, the district court entered an order declaring a mistrial upon jury disagreement and reflecting the State's reservation of the right to retry Defendant. Due to numerous extensions and this appeal, Defendant has not yet been retried.

{5} On March 29, 2004, the New Mexico Office of the Attorney General (AG's Office) indicted Defendant for solicitation to commit first degree murder and solicitation to commit aggravated battery. ADA Berenson was one of the alleged victims of Defendant's murder threats. Defendant entered into a plea agreement related to these charges, in which he pleaded guilty to two counts of criminal solicitation to commit aggravated battery. The State dropped the charge relating to ADA Berenson, but she nonetheless testified at the hearing on Defendant's sentencing for the charges agreed upon in the plea agreement.

{6} Meanwhile, in November 2004, during pretrial matters in the present case, ADA Berenson transferred out of the CAC Division and ceased all involvement with this underlying case against Defendant. ADA Berenson remained employed with the Second Judicial DA's Office, however, and ADA Trabaudo was assigned to prosecute this case alone, which she has done through the present appeal.

{7} On January 13, 2006, Defendant filed a motion to disqualify all attorneys in the Second Judicial DA's Office due to a purported conflict that was created by the charge against Defendant for allegedly soliciting the murder of ADA Berenson. Following a hearing on the motion, the district court disqualified the entire DA's Office, ruling that Defendant had met his burden of establishing an appearance of impropriety or bias.

{8} The district court agreed with Defendant that ADA Berenson had a disqualifying interest in prosecuting Defendant, which created an appearance of impropriety that was imputed to the entire DA's Office. The district court focused its findings on ADA Trabaudo's involvement with Defendant's current charges and her knowledge of the solicitation charges in the case prosecuted by the AG's Office. The district court found that ADA Trabaudo received the initial call about the solicitation on ADA Berenson's life, reported it to Berenson, and was in contact with the AG's Office about the investigation of the charges and the effect Defendant's plea would have on the current charges for which she was prosecuting Defendant. The district court also found that all of the prosecutors in the Second Judicial DA's Office were aware of the solicitation charges against Defendant, from both word of mouth within the office and from the media, and that they expressed safety concerns about Defendant's possible release from incarceration. With the widespread knowledge and media coverage of the solicitation charges, the district court found that proper screening mechanisms were not employed, and that, even if they were employed, they may not have been effective to dissipate the appearance of unfairness or impropriety. Based on these findings, the district court granted Defendant's motion and disqualified the entire Second Judicial DA's Office from prosecuting Defendant on the present charges.

{9} Pursuant to the collateral order doctrine and Gonzales, 2005-NMSC-025, ¶ 19, 138 N.M. 271, 119 P.3d 151 the State filed this appeal.

DISCUSSION

The Standards of Review

{10} According to our Supreme Court in Gonzales, the standard of review applicable to an order disqualifying a prosecutor or a prosecution office is not easily defined. Id. ¶ 20. While this Court concluded that appellate courts review such orders for abuse of discretion in State v. Pennington, 115 N.M. 372, 376, 851 P.2d 494, 498 (Ct.App.1993) (stating that "we leave to the sound discretion of the district court whether the circumstances of the specific case require disqualification of the entire [prosecuting] staff"), the Supreme Court stated that the appropriate standard of review "actually is more complex," Gonzales, 2005-NMSC-025, ¶ 20, 138 N.M. 271, 119 P.3d 151, and depends upon the "nature of the order and the grounds on which the order is challenged." Id. ¶ 25. As always, the trial court resolves the historical facts, which we review under the deferential standard of substantial evidence review. See id. ¶ 21. Where the district court resolves issues involving "values that animate legal principles" or the consideration of "abstract legal doctrines" that require the balancing of underlying policies and competing legal interests, our review is de novo. Id. (internal quotation marks and citations omitted). To the extent that the dissenting opinion utilizes an abuse of discretion standard contrary to these precepts, we find it unconvincing. Given the mix of standards applicable to disqualification orders, we follow the Supreme Court's example and identify the appropriate standard within our discussion of the issues.

The Parties' Arguments

{11} In the district court, defense counsel focused on ADA Trabaudo and contended that she should be disqualified from prosecuting Defendant in the present case because it would be impossible for her to avoid developing bias against Defendant, who was accused of soliciting the murder of Trabaudo's trial partner, ADA Berenson. In addition, defense counsel argued, the State failed to take steps to screen prosecutors assigned to the present case from information regarding the solicitation charges against Defendant, which failure translated to inherent bias and taint of the entire office. On appeal, the defense makes similar arguments and contends that both ADA Berenson and ADA Trabaudo had disqualifying interests. Defendant maintains that ADA Berenson had a personal interest—in her continued health and safety—in prosecuting Defendant, which conflicted with her professional obligation to represent public justice. Defendant argues that ADA Trabaudo's extensive involvement with ADA Berenson and the solicitation charge means that Trabaudo also had a disqualifying interest that should prohibit her from prosecuting Defendant. Defendant further argues that the Second Judicial DA's Office did not have adequate screening mechanisms in place to shield the Office from the disqualifying interest to dissipate the appearance of impropriety.

{12} The State argues that neither ADA Berenson nor ADA Trabaudo had a disqualifying conflict of interest or bias, and that, therefore, there was no appearance of impropriety or need to screen the remaining attorneys in the Second Judicial DA's Office. The State argues alternatively that, assuming screening was...