State v. Ruffin, A-1-CA-40079

Case DateNovember 21, 2022
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellant,

KELVIN RUFFIN, Defendant-Appellee.

No. A-1-CA-40079

Court of Appeals of New Mexico

November 21, 2022



Hector H. Balderas, Attorney General Santa Fe, NM Van Snow, Assistant Attorney General Albuquerque, NM for Appellant

Bennett J. Baur, Chief Public Defender Joelle N. Gonzales, Assistant Appellate Defender Santa Fe, NM for Appellee



{¶1} The State of New Mexico appeals the district court's grant of a motion to dismiss and bar retrial following a mistrial. The State argues that the district court erred in granting Defendant's motion because the prosecutor did not commit prosecutorial misconduct. We agree and reverse.



{¶2} A criminal complaint was filed in the district court charging Defendant with attempted murder, along with two counts of aggravated battery with a deadly weapon against victims Robert and Julie Ponce. The district court excluded Robert from testifying because he failed to cooperate with pretrial interviews. Despite his exclusion as a witness prior to trial, the State requested that Julie be able to identify Robert, her husband, while testifying. The district court agreed, though it instructed the State to tell Robert "not to say anything or pull up his shirt or anything like that"-an apparent reference to the location of Robert's injuries-and to "make sure you're clear that he doesn't make any statements-that'll be a clear mistrial-or gestures or any of those kinds of things." During trial, the district court reiterated that "[Robert] is certainly not prohibited from coming into the courtroom . . . but he cannot stand, I don't want him to make any gestures, I don't want him to say anything." "If he does any of those kinds of things it'll be a mistrial in this case, and that will be attributed to the State, and it'll be dismissed with prejudice." The State agreed, and both prosecutors instructed Robert to do nothing while Julie testified.

{¶3} As permitted, Julie identified Robert on the stand during her direct examination. Trouble arose, however, when the State subsequently called her as a rebuttal witness. During that testimony, the court and parties held a bench conference outside of the courtroom. As a juror's note later informed the judge, while the judge


and attorneys were outside the courtroom, Robert arose and made a thumbs-up gesture-in the presence of the jury-to Julie who remained on the witness stand. After speaking with the juror who sent the note, the district court ultimately declared a mistrial over the State's objection. The court initially determined the mistrial was "not really the fault of the State." Defendant later filed a motion to bar retrial based on prosecutorial misconduct under State v. Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792, which the district court granted, determining that "[t]he State was negligent in controlling or monitoring [Robert]." In doing so, it "rescinded" its prior determination of "manifest necessity."


{¶4} "An appellate review of a prosecutorial misconduct claim presents a mixed question of law and fact." State v. McClaugherty, 2008-NMSC-044, ¶ 39, 144 N.M. 483, 188 P.3d 1234. "The appellate court will defer to the district court when it has made findings of fact that are supported by substantial evidence and reviews de novo the district court's application of the law to the facts." Id.

{¶5} Retrial of a criminal defendant is barred following a mistrial, retrial, or reversal due to prosecutorial misconduct after satisfying the three-prong test outlined in Breit:

[W]hen improper official conduct is so unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial or a motion for a new trial, and if the official knows that the conduct is improper and prejudicial, and if the official either intends to provoke a
mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal

1996-NMSC-067, ¶ 32. The district court's determination that the three Breit factors barred retrial rested either on Robert's conduct or the State's failure to control Robert's conduct. We conclude that, to the extent that the district court relied on Robert's violation of the order, the first element is lacking because there is no official conduct involved. Further, to the extent that the district court relied on the State's failure to enforce compliance with the order, element three was not satisfied because negligence does not constitute prosecutorial misconduct. We begin by considering the Breit factors in the context of Robert's conduct.

Improper Official Conduct

{¶6} The district court's order barring retrial was insufficient as to the first Breit prong because it improperly attributed Robert's actions to the State. As a threshold matter, the Breit test requires "improper official conduct." Id. (emphasis added). Our Supreme Court recently clarified this central requirement, holding that the same Breit test also applies even to the conduct of judges. See State v. Hildreth, 2022-NMSC-012, ¶ 22, 506 P.3d 354 (citing United States v. Dinitz, 424 U.S. 600, 611 (1976) (emphasizing the necessity of "governmental actions" to invoke double jeopardy concerns over multiple prosecutions)). Our Court has previously declined to extend prosecutorial misconduct analysis to law enforcement witnesses for the state, even when the state was placed on "explicit notice" that testimony risked


mistrial. See State v. Hernandez, 2017-NMCA-020, ¶¶ 28-29, 388 P.3d 1016 ("New Mexico does not extend a prosecutorial misconduct analysis to witnesses.")...

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