State v. Saavedra
| Decision Date | 21 December 1988 |
| Docket Number | No. 17471,17471 |
| Citation | 108 N.M. 38,1988 NMSC 100,766 P.2d 298 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Gilbert SAAVEDRA, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Gilbert Saavedra was convicted of a 1982 felony murder and armed robbery, and was sentenced to life imprisonment plus 21 years, to be served consecutively. On appeal he raises two issues: first, that his third trial, which resulted in his conviction in 1987, subjected him to double jeopardy contrary to the fifth amendment of the United States Constitution and article II, section 15 of the New Mexico Constitution; second, that the consecutive sentences imposed by Judge Burt Cosgrove in 1987 violated his due process rights under the state and federal constitutions. Defendant was originally convicted on the same charges in 1983 and sentenced by Judge Patricia Madrid to a term of life imprisonment plus 21 years, to be served concurrently. We reversed his conviction and remanded for a second trial because evidence material to his defense was improperly excluded and a State's witness improperly commented on Saavedra's previous felony conviction. See State v. Saavedra, 103 N.M. 282, 705 P.2d 1133 (1985).
Double jeopardy. On June 23, 1986, before Judge Cosgrove, Saavedra was brought to trial for the second time. A jury was impaneled, and heard testimony from a number of state witnesses. On June 30, temporary substitute counsel announced that Saavedra's attorney, Mr. Riggs, was striken with chicken pox and was unable to continue with the trial at that time. A letter was presented to the court from Riggs' doctor, stating that Riggs would no longer be contagious after July 4, 1986. The defendant requested a one week continuance, insisting that Riggs would be able to resume trial on Monday, July 7.
The prosecutor, Mr. Shane, informed the court that he was scheduled to leave Albuquerque on Thursday, July 10, to undergo back surgery. Shane told the court his scheduled surgery had already been postponed due to Saavedra's trial "about as much as it could be postponed." Shane also told the court, however, that he had been living with his back problems for two years and recognized his responsibility to prosecute the case to its conclusion. He contended a mistrial would prejudice the State's case. The defendant also strenuously objected to the declaration of a mistrial at that time, although he had twice before moved for a mistrial based on alleged irregularities in statements by the State's witnesses. These motions had been denied.
Shane estimated the completion of his case would take around a day and a half, and he anticipated calling one to four rebuttal witnesses. Riggs, through temporary substitute counsel, estimated the entire trial could be finished within three days. These assurances notwithstanding, Judge Cosgrove expressed doubts the case could be adequately completed within the three-day window between defense counsel's proposed return and the prosecutor's scheduled departure.
Judge Cosgrove also noted he had promised himself and his staff a vacation starting July 7, the day the defendant estimated trial could resume. He questioned whether a week's continuance would unduly inconvenience the jury; however, each of the jurors replied upon being questioned that the proposed schedule did not pose a problem. Judge Cosgrove instructed the attorneys to discuss scheduling problems with witnesses and asked the prosecutor to investigate further the possibility of postponing his operation. The judge then recessed the hearing, indicating he wanted to continue the discussion on the following day. Apparently, such a meeting did take place off the record. The court declared a mistrial for reasons of manifest necessity, and entered findings and conclusions to that effect on September 24, 1986. Pertinent to our discussion are the following findings and conclusions:
6. The Court was notified that Mr. Riggs was confined to his home and might require hospitalization, and his disease was contagious and that the Court was obligated to grant the Defendant a Continuance until Mr. Riggs' health was adequately restored to allow him to continue to represent the Defendant.
7. Due to the complexity of the case, the numerous witnesses and issues involved, including the history of the case, [and] the progress of the trial, neither the Defendant nor the State could have obtained substitute counsel which could have provided adequate assistance.
8. Mr. Shane, the Special Prosecutor, was suffering from a degenerative back condition and previously had major back surgery scheduled out-of-state, said surgery to occur July 11, 1986. Mr. Shane was scheduled to leave Albuquerque on July 10, 1986 and would not complete recovery until mid to late August, 1986.
9. It was doubtful that Mr. Riggs could return on Monday, July 7, 1986 in adequate health to undergo the strain of completing the State's Case-In-Chief, the Defense's Case-In-Chief, any rebuttal or sur-rebuttal, the preparation of jury instructions, closing arguments and jury deliberations which circumstances required to be completed in three (3) days and to compel Mr. Riggs to do so may cause the defense to be ineffectively represented.
10. It was doubtful that Mr. Shane could adequately represent the State of New Mexico due to a certain amount of emotional trauma that would result from his imminent back surgery and the uncertainty of completing the Trial prior to his date of departure.
....
12. The Trial Court concludes that due to the need for [a] Continuance by the Defendant and the scheduled vacation of the Court and Its staff on July 7, 1986 and Mr. Shane's major surgery that the Trial could not be completed by July 9, 1986 without substantial prejudice to the Defendant, State or both parties.
13. The Trial Court concludes that the ends of [public] justice would not be met in carrying this Trial to a conclusion at this time.
14. The Trial Court concludes that Manifest Necessity exists and that a Mistrial should be declared.
Analysis. Both the federal and state constitutions prohibit the state from twice subjecting a person to criminal prosecution for the same offense. U.S. Const. amend. V; N.M.Const. art. II, Sec. 15. 1 When a criminal proceeding has been carried to completion, this protection is absolute: Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978) (citation omitted).
The double jeopardy clause also protects a criminal defendant against being retried in some instances when the criminal proceeding was aborted before a final judgment was obtained. Accordingly, it is said that "jeopardy" attaches when the jury is sworn in the first trial, Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963), and if the defendant objects to a mistrial he or she cannot be retried once jeopardy attaches, unless the mistrial was found to have been declared for reasons of "manifest necessity." United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824); State v. Castrillo, 90 N.M. 608, 566 P.2d 1146 (1977).
As the term "manifest necessity" implies, the protection against retrial is not absolute when the trial process has been stopped short of a final judgment. When the defendant has been acquitted, the defendant's interest against further prosecution and the public's interest in finality both compel a bar against retrial; when the trial has been aborted before its conclusion, the defendant's valued right to have his or her case heard by the jury already impaneled is sometimes in conflict with the public interest in allowing the prosecutor one full and fair opportunity to present the state's case. "[A] mechanical rule prohibiting retrial whenever circumstances compel the discharge of the jury without the defendant's consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide." United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).
Therefore, when retrial after declaration of a mistrial would not create unfairness to the accused, his interest against retrial may be subordinated to the public interest in substantive justice. Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830. The subordination of a constitutionally protected interest, however, is not to be lightly undertaken, and the prosecutor must shoulder a heavy burden to justify the mistrial if the double jeopardy bar is to be avoided. Id. "Manifest" necessity has been interpreted as a "high degree" of necessity. Id. at 506, 98 S.Ct. at 830. Nonetheless, in some instances a reviewing court must afford substantial deference to the trial court's ruling. Id. at 507-511, 98 S.Ct. at 831-33. When, for example, the underlying issue involves a deadlocked jury or possible jury bias, the trial judge should be allowed broad discretion whether to declare a mistrial. In other instances, such as when the basis for the mistrial is the unavailability of key prosecution evidence or when there is reason to believe that the prosecutor is attempting to harass or gain a tactical advantage over the defendant, the strictest scrutiny is necessary. Id.
It is readily apparent that the present case falls somewhere in between these two extremes. 2 There has been no suggestion that the...
To continue reading
Request your trial
-
County of Los Alamos v. Tapia
...quality" for purposes of the Double Jeopardy Clause. Serfass, 420 U.S. at 392, 95 S.Ct. at 1064.11 See also State v. Saavedra, 108 N.M. 38, 41, 766 P.2d 298, 301 (1988) (when retrial after declaration of mistrial would not create unfairness to the accused, his interest against retrial may b......
-
State v. Anderson
...prosecutor could step in within reasonable time because of complexity of case, and jury had been sequestered); State v. Saavedra, 108 N.M. 38, 40-43, 766 P.2d 298 (1988) (mistrial reasonable when one week continuance necessitated by illness of defense counsel was followed by prosecutor's sc......
-
Manlove v. Sullivan
...of the procedural sanction applied? Or, was the statement one to be disregarded? We believe it was the latter. See State v. Saavedra, 108 N.M. 38, 766 P.2d 298 (1988) (the denial of a one-week continuance and the granting of a mistrial were based on compelling grounds independent of vacatio......
-
State v. Lynch
...is not an absolute right. See County of Los Alamos v. Tapia, 109 N.M. 736, 742, 790 P.2d 1017, 1023 (1990); State v. Saavedra, 108 N.M. 38, 41, 766 P.2d 298, 301 (1988). A defendant's right to be free from double jeopardy may at times be "subordinated to the countervailing interest of socie......