State v. McClaugherty

188 P.3d 1234

2008 NMSC 044

STATE of New Mexico, Plaintiff-Respondent, v. Charles Isaac McCLAUGHERTY, Defendant-Petitioner.

No. 30,272.

Supreme Court of New Mexico.

June 27, 2008.

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

Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

MAES, Justice.

{1} This is the second time Charles McClaugherty (Defendant) has appealed to this Court. State v. McClaugherty (McClaugherty I), 2003-NMSC-006, ¶ 1, 133 N.M. 459, 64 P.3d 486. This appeal concerns events predicated on our remand for a new trial from McClaugherty I, which Defendant challenged below based on double jeopardy grounds.

{2} In McClaugherty I, we reversed Defendant's convictions because the prosecutor, Kenny Montoya (Montoya), put inadmissible hearsay in front of the jury by reciting portions of statements allegedly given to the police by two witnesses who were not called to testify. Id. ¶ 35. During Montoya's cross-examination of Defendant, the last witness at trial, Montoya asked Defendant if he would be surprised that the two witnesses told the police that they each heard him claiming credit for shooting at the victim and "bragging" about the shooting. Id. ¶¶ 13-14. We held that this conduct prejudiced Defendant to the extent that the only proper remedy was reversal of the convictions and a remand for a new trial. Id. ¶ 35.

{3} After remand to the district court, Defendant's new counsel filed a motion to bar retrial pursuant to State v. Breit, 1996-NMSC-067, 122 N.M. 655, 930 P.2d 792. The district court heard the matter, agreed with Defendant, and dismissed the indictment with prejudice. The State timely appealed the dismissal to the Court of Appeals but later filed two motions in the district court: one to dismiss the appeal and a second to reopen the hearing on the motion to bar reprosecution to allow the presentation of additional evidence. The State explained that it sought to introduce "the truth" of what happened at trial by calling the prosecutor "to defend himself against the Court findings in the [O]rder of [D]ismissal" and to "explain his actions to the Court." At the hearing on both of the State's motions, defense counsel agreed to the dismissal of the appeal but argued, inter alia, that NMSA 1978, Section 39-1-1 (1917), prohibited the district court from reopening the hearing because it requires that a district court act on a post-judgment motion within a certain time frame, and the time to act had expired. The district court first granted the State's unopposed motion to dismiss its appeal and then granted the State's motion to reopen the hearing on the motion to bar reprosecution. After it heard more evidence in a succession of hearings, the district court vacated its earlier dismissal of the indictment with prejudice and ordered a new trial.

{4} Defendant appealed the order for a new trial to the Court of Appeals, asserting (1) that Section 39-1-1 operated to deprive the district court of jurisdiction to hear the State's motion to reopen the hearing on the motion to bar further prosecution because more than thirty days elapsed from its filing to the motion's resolution, and (2) pursuant to New Mexico Constitution Article II, Section 15 and Breit, the district court erred in ordering a retrial. State v. McClaugherty (McClaugherty II), 2007-NMCA-041, ¶ 2, 141 N.M. 468, 157 P.3d 33. In a split decision, the Court of Appeals affirmed the district court. Id. ¶¶ 53-54.

{5} Defendant appealed two issues to this Court: (1) whether the thirty-day period that Section 39-1-1 sets for the district court to decide a motion to reconsider a final judgment expires during the pendency of an appeal, and (2) whether evidence of the prosecutor's "gross" misconduct in cross-examining Defendant bars retrial under the double jeopardy principles of Breit. We granted Defendant's petition for certiorari review and affirm the Court of Appeals' conclusion that under the facts of this case, Section 39-1-1 did not limit the district court's jurisdiction to act on the State's motion to reopen the hearing on the defense motion to bar further prosecution. We take this opportunity to clarify the standard by which courts should measure a prosecutor's misconduct to determine whether or not to bar retrial of a defendant. We conclude that double jeopardy principles, as articulated in Breit and clarified herein, bar retrial of this Defendant.

I. HISTORY OF THIS CASE

A. Facts and Procedure from the Record

{6} The facts of this case are more completely presented in McClaugherty I, we present an abridged version here. The indictment arose from a shooting in Albuquerque over an argument wherein Ricky Solisz argued with a girl on the phone. The conversation allegedly concluded with Solisz threatening to slap or kick her. The girl was at a party at Defendant's apartment, and Defendant took umbrage when he was told of Solisz's aggression. Defendant and his friend Rodrigo Dominguez argued with Solisz on the telephone, and eventually Solisz agreed to bring his friends to a fight where Defendant and his friends would defend the girl from the disrespect. The two groups agreed to meet at a shopping center parking lot and arrived there in separate cars.

{7} Defendant arrived with Dominguez, Nachima Coriz, and others at the rendezvous. McClaugherty I, 2003-NMSC-006, ¶ 5, 133 N.M. 459, 64 P.3d 486. Solisz arrived with his friends, Vincent Martinez and Eloy Sandoval. Martinez brandished a baseball bat. Id. ¶ 6. There was testimony that Defendant and his friends brought two handguns and a shotgun with them. Shots fired from Defendant's group fatally wounded Solisz and injured Martinez. The police determined that the fatal shot had come from a handgun; however, they recovered only one handgun and they could not determine if that gun had fired the fatal shot.¹ After the early morning shootout, Defendant and Coriz hid all day in a nearby apartment. That evening, Coriz turned himself in to the police and gave them a statement inculpating Defendant and Dominguez. 2003-NMSC-006, ¶¶ 5-6, 8-9, 133 N.M. 459, 64 P.3d 486.

{8} Coriz testified for the State at Defendant's trial and was the only witness to identify Defendant as one of the young men who fired a gun on the night of the murder. Coriz testified that Defendant carried a pistol to the scene on the night of the murder and that he saw Defendant and another person get out of their car and run toward a fence bordering the parking lot. Coriz claimed that Defendant turned and shot at Solisz's car between five and seven times while he was running, then turned and jumped over the fence. Coriz also testified that after he, Defendant and Dominguez returned to Defendant's apartment, he heard Defendant tell his sister that they "went and shot at some people." After the State rested, defense counsel called Defendant to the stand, where he was the last witness to testify. During Defendant's cross-examination, Montoya repeated statements he claimed were contained in witness statements to the police and drew a hearsay objection from defense counsel. Id. ¶¶ 9-14. Montoya's description of these witness statements during cross-examination became the subject of Defendant's first appeal to this Court. See Id. ¶ 3.

B. Our Analysis in McClaugherty I — the Hearsay Introduced During Defendant's Cross-Examination

{9} In McClaugherty I, we reproduced the colloquy between Defendant and Montoya, and repeat it here for ease of reference. During his testimony, Defendant denied that he handled or fired a gun on the night of the murder. On cross-examination, Montoya asked Defendant if he told his sister and his roommate what happened that night. Defendant answered: "I had told them, yes, I was there and I ran." McClaugherty I, 2003-NMSC-006, ¶ 11, 133 N.M. 459, 64 P.3d 486. Montoya continued to question Defendant while holding papers in his hand:

Q: Is that all you told them?

A: I'm pretty sure.

Q: You're aware I've got statements? You got copies of the statements.

A: Yes.

Q: So why are they lying about you then?

A: Can you tell me what you're referring to?

At this point defense counsel objected to the State's line of questioning. During the subsequent bench conference, defense counsel argued to the court:

Defense: He's trying to impeach him with hearsay that's never been admitted into evidence.

[Montoya]: Inconsistent statements of admission.

Court: Do we have statements from these people that say something opposite to what he's saying?

[Montoya]: When they were talking about the shooting, at first he —

Court: I think what you're doing is the objection is really to the form of the question. You can ask him, "Would it surprise you if somebody else said this, like as far as something — you know, why are they lying about you?" You're assuming facts not in evidence, so I'm going to sustain the objection on that particular ground, okay?

[Montoya] then returned to the cross-examination by asking Defendant, "[s]ir, would it surprise you to hear that your sister, Sarah Tucker, gave a statement to the police 6/19/99, the day after or the day, that morning, that said that you admitted to her that you shot —." At this point defense counsel objected again. At the bench conference, defense counsel argued:

Defense: He is attempting to impeach him with extrinsic evidence of which I have no opportunity to cross-examine him with, under what circumstances or anything else.

Court: Anything for your record?

[Montoya]: Your Honor, [Sarah] Tucker is actually his sister. She's been subpoenaed. She's been available. She won't come up to our office. [Defense counsel] has had the opportunity to interview her.

Court: The question that's being asked is whether or not he agrees with this or not is not — I mean because this person can always be brought in to explain...