STATE V. FOSTER, 2003-NMCA-099, 134 N.M.
224, 75 P.3d 824
STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
WILLIAM FOSTER, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2003-NMCA-099, 134 N.M. 224, 75 P.3d 824
APPEAL FROM THE DISTRICT COURT OF SAN
JUAN COUNTY, Byron Caton, District Judge
Certiorari Denied, No. 28,100, August
7, 2003. Released for Publication August 21, 2003.
Patricia A. Madrid, Attorney General,
Patricia Gandert, Assistant Attorney General, Santa Fe, NM, for Appellee.
John B. Bigelow, Chief Public Defender,
Santa Fe, NM, Thomas DeMartino, Assistant Public Defender, Albuquerque, NM, for
Appellant.
CELIA FOY CASTILLO, Judge. WE CONCUR:
JONATHAN B. SUTIN, Judge, IRA ROBINSON, Judge.
AUTHOR: CELIA FOY CASTILLO.
{1} This is an interlocutory
appeal from the district court's denial of Defendant's motion to dismiss on
double jeopardy grounds based on being twice tried in magistrate court for the
same offense. The appeal presents us with three questions certified by the
district court: (1) whether a district court in a trial de novo may review
trial transcripts or other evidence of proceedings in magistrate court, a court
not of record, in ruling on a pretrial motion to dismiss on grounds of double
jeopardy; (2) whether transcripts are papers or exhibits under Rule
6-703(F)
NMRA 2003; and (3) whether the double jeopardy clause is violated when a
defendant is tried twice without an order declaring a mistrial and without a
finding of manifest necessity.
{2} We hold that under the
circumstances of this case, the district court may review the trial transcripts
insofar as is necessary to resolve the double jeopardy issue. We determine that
trial transcripts are not papers but may be exhibits, if properly admitted in
the court below. We also determine that the magistrate court's failure to enter
a written order granting a mistrial does not give rise to a double jeopardy
claim so long as the record adequately establishes that the magistrate court
properly granted a mistrial. We vacate the district court's order denying
Defendant's motion to dismiss and remand for further proceedings on the issue
of manifest necessity.
{3} On November 5, 2001,
Defendant was tried before a jury in magistrate court for aggravated driving
under the influence of intoxicating liquor or drugs (DWI) (second offense) in
violation of NMSA 1978, §
66-8-102 (1999). During the trial, defense counsel
asked the State's witness, Deputy Brian Johnston, "Isn't it true Deputy,
that 90% of the people you arrest for DWI are Navajo?" The magistrate
court sustained the State's objection to the question. A bench conference was
then held during which the State asked for a mistrial. Immediately following
the bench conference, the magistrate court orally declared a mistrial. The
following day, the State requested the magistrate court to order a mistrial,
find manifest necessity, and set a second jury trial date. In his response
opposing the State's motion, Defendant requested a hearing. The magistrate
court at some point handwrote "Motion Granted" on the State's motion
and "Denied" on Defendant's motion.
{4} The second trial began on
December 7, 2001. After swearing in jurors, conducting voir dire, and
exercising challenges, but prior to announcing the selected jurors, defense
counsel renewed her objection to a second trial. A discussion ensued between
defense counsel and the prosecutor as to whether alternatives to a mistrial
were considered by the magistrate court and whether the court made a finding of
manifest necessity. The magistrate court overruled Defendant's objection and
the second trial proceeded. Defendant was subsequently convicted of aggravated
DWI. He appealed to the district court for a trial de novo and then filed a
pretrial motion with the district court to dismiss the criminal complaint on
double jeopardy grounds. Defendant attached to the motion an uncertified
transcription of portions of the first trial testimony, including the bench
conference and the magistrate court's oral declaration of a mistrial. Also
attached were copies of the mistrial motions filed by both parties in
magistrate court.
{5} The district court
conducted two hearings on Defendant's motion to dismiss. There was extensive
discussion about whether the district court had jurisdiction to review the
pretrial motion and, if so, what materials constituted a reviewable record on
appeal. Particularly, the district court had concerns as to whether it could
review trial transcripts, tapes of the proceedings, or motions not requested by
the magistrate court to be in writing. It also questioned its jurisdictional
authority to review a grant of mistrial, a discretionary function of the
magistrate court, during an appeal de novo. The district court ultimately
concluded that trial transcripts are not part of the record on appeal under
Rule 6-703(F), are not papers, and were not admitted as exhibits.
See
Rule 6-703(F)(2), (4). The district court denied Defendant's motion, finding that
the district court cannot review events that transpired in the magistrate
court. Defendant appeals the denial of his motion. Because it considered the
issues presented by the motion as potentially dispositive of the case, the
district court certified the three questions stated above and stayed the trial
de novo pending the outcome of this appeal.
{6} We review de novo
questions of law concerning the interpretation of Supreme Court rules and the
district court's application of the law to the facts of this case.
State v.
Gage,
2002-NMCA-018, ¶ 14,
131 N.M. 581,
40 P.3d 1025 ("Interpretation
and application of the law are subject to a de novo review.") (internal
quotation marks and citation omitted);
State v. Wilson,
1998-NMCA-084, ¶
8,
125 N.M. 390,
962 P.2d 636 (applying a de novo standard to its review of the
district court's application of a Supreme Court rule).
B. Transcripts and Other Evidence
Reviewable From a Court Not of Record in a Trial De Novo
1. Double Jeopardy Defense
{7} The Double Jeopardy
Clause of the United States Constitution and the New Mexico Constitution
guarantees that no person shall be put in jeopardy twice for the same offense.
U.S. Const. amend. V;
N.M. Const. art. II, § 15. "Jeopardy attaches in a
jury trial when the jury is empaneled and sworn."
County of Los Alamos
v. Tapia,
109 N.M. 736, 737 n.1,
790 P.2d 1017, 1018 n.1 (1990). If the
trial is not completed, i.e., the trial court declares a mistrial and
discharges the jury, the Double Jeopardy Clause prohibits a defendant from
being placed in jeopardy again at a second trial for the same offense unless
"there is a manifest necessity for the discharge of the first jury or . .
. the ends of public justice would be defeated by carrying the first trial to
final verdict."
State v. De Baca,
88 N.M. 454, 459,
541 P.2d 634,
639 . Defendant acknowledges that he could have sought to prohibit the
magistrate court from retrying him after the magistrate court denied his motion
to dismiss. Defendant's failure to seek an extraordinary writ is not a waiver
of his double jeopardy defense.
See NMSA 1978, §
30-1-10 (1963),
see
also State v. Sedillo,
88 N.M. 240, 242,
539 P.2d 630, 632 (Ct. App.
1975) (holding that defendant's failure to object to a declaration of mistrial
was not a waiver of his double jeopardy defense and the defense could be raised
on appeal after he was retried for the same offense). We conclude that the
double jeopardy defense is available to Defendant in his de novo appeal.
2. De Novo Appeal and Appeal on
the Record
{8} The question before us
concerns the extent of the district court's review, during a de novo appeal, of
a record on appeal when it considers a pretrial motion claiming a violation of
double jeopardy in a court not of record. Because of its importance to this
case, we briefly address the difference between an appeal of record and a de
novo appeal. The New Mexico Constitution vests district courts with
"appellate jurisdiction of all cases originating in inferior courts."
N.M. Const. art. VI, § 13. In the exercise of that appellate jurisdiction,
"trial shall be had de novo unless otherwise provided by law."
N.M.
Const. art. VI, § 27. Under state statute, "[a]ll appeals from inferior
tribunals to the district courts shall be tried anew in said courts on their
merits, as if no trial had been had below, except as otherwise provided by
law." NMSA 1978, §
39-3-1 (1955).
{9} Whether a lower court is
of record determines whether a trial will be de novo.
See State v.
Trujillo,
1999-NMCA-003, ¶¶ 4-5,
126 N.M. 603,
973 P.2d 855 (explaining
that appeals from the metropolitan court may be either de novo or on the record
depending on the type of case). If an appeal is on record, the district court
acts as a typical appellate court reviewing the record of the lower court's
trial for legal error.
Id. ¶ 4. The magistrate court, unlike the
metropolitan court, is not a court of record.
Compare NMSA 1978, §
35-1-1 (1968) (establishing magistrate courts as courts not of record)
with
NMSA 1978, §
34-8A-6(B), (D) (1993) (establishing metropolitan courts as courts
of record for civil actions and certain criminal actions). Therefore, appeals
from magistrate courts are de novo. NMSA 1978, §
35-13-2(A) (1996)
("Appeals from the magistrate courts shall be tried de novo in the
district court."); Rule 6-703(J) ("Trials upon appeals from the
magistrate court to the district court shall be de novo."). In a de novo
appeal, in contrast to appeals on the record, a district court conducts a new
trial as if the trial in the lower court had not occurred.
Trujillo,
1999-NMCA-003, ¶ 4.
3. The District Court Must Hear
the Double Jeopardy Claim
{10} The State argues that it
is impossible for the district court to review Defendant's double jeopardy
claim because, in a trial de novo, it is as though the proceedings in the lower
court below never happened. The district court's only option, the State
contends, is to conduct a full trial on the merits without considering the
double jeopardy claim. We disagree. The State provides no support for its
proposition, and we find no jurisdictional or other bar to the district court's
consideration of Defendant's motion on the merits. Defendant's right to be free
of double jeopardy is constitutionally guaranteed and statutorily protected.
See
U.S. Const. amend. V;
N.M. Const. art. II, § 15; NMSA 1978, §
30-1-10 (1963).
When asserting a violation of that right in magistrate court, Defendant's only
course of redress, barring petitioning for an extraordinary writ, is a de novo
appeal. In this case, Defendant did not file an extraordinary writ and
consequently, the State is asking us to bar Defendant from pursuing his
constitutional challenge in his de novo appeal. To hold that Defendant cannot
pursue redress by de novo appeal but instead is required to do so pursuant to a
writ is to exalt form over substance. Such a result would offend our sense of
justice.
{11} We have emphasized that
"[t]he district courts of this State have broad jurisdiction–legal and
equitable, original and appellate."
State ex rel. Highway & Transp.
Dep't v. City of Sunland Park,
2000-NMCA-044, ¶ 10,
129 N.M. 151,
3 P.3d
128;
see N.M. Const. art. VI, § 13. As discussed above, in the exercise
of their appellate jurisdiction, district courts conduct trials de novo. District
courts also, when called upon, hear pretrial motions in de novo appeals.
See
Rule
5-601(B) NMRA 2003 ("Any defense . . . which is capable of
determination without a trial on the merits may be raised before trial by
motion."); Rule
6-703(N) NMRA 2003 ("[T]he Rules of Criminal
Procedure for the District Courts shall govern the procedure on appeal from the
magistrate court.");
see also Wilson,
1998-NMCA-084, ¶ 20,
(remanding to district court for hearing on defendant's motion to dismiss for
speedy trial violation in magistrate court);
State v. Vigil,
114 N.M.
431, 433,
839 P.2d 641, 643 (considering trial court's grant of defendant's
motion to dismiss for violation of six-month rule in magistrate court);
State
v. Hicks,
105 N.M. 286, 287,
731 P.2d 982, 983 (Ct. App. 1986) ("[T]he
right of appeal [from courts not of record] . . . is the right to a trial
or
hearing de novo in the district court.") (emphasis added). We see no
justification for limiting the authority of the district court to hear
Defendant's pretrial motion in this case; to the contrary, given the gravity of
the right being asserted, the right to be free of double jeopardy, we hold that
the district court has jurisdiction as well as a constitutional and statutory
obligation to consider Defendant's motion on the merits.
4. Review of Transcripts and
Other Evidence of Proceedings
{12} Having determined that
the district court must consider what occurred below, we turn to the more
difficult issue, what material the district court may consider. Specifically,
we are asked to determine whether the district court may consider transcripts
and other evidence of proceedings. By transcripts, we mean tape recordings or
stenographic transcriptions including computer aided transcriptions of
proceedings not tape recorded.
See Rule
12-211(A) NMRA 2003 (Defining
"transcript of proceedings" for appeals to the Supreme Court and
Court of Appeals). We include in this definition written transcriptions of tape
recordings of proceedings. We presume from the district court's hearings on the
matter that the "other evidence of prior magistrate court
proceedings" are the mistrial motions from the parties. Rule 6-703(F)
governs the record on appeal from magistrate court in a criminal action. In
addition to a title page, the rule states that the record shall consist of:
"(2) a copy of all papers and pleadings filed in the magistrate court; (3)
a copy of the judgment or final order sought to be reviewed with date of
filing; and (4) any exhibits."
{13} The motions that the
district court believed could not be part of the record were both duly filed in
and considered by the magistrate court. There is no suggestion that the motions
were improperly or untimely filed. The district court's concern was based on
the fact that the motions were not ordered by the magistrate court to be in
writing. Rule
6-304(B) NMRA 2003 states that "[m]otions may be made orally
or in writing, unless the court directs they be in writing." The district
court read this rule as a disallowance of written motions that were not
affirmatively directed by the magistrate court to be in writing. Our
interpretation of the rule leads us to conclude just the opposite; that oral
motions are insufficient if the magistrate court directs they be written but
that written motions are always permitted. We conclude that the motions, as
papers filed in the magistrate court, were properly included in the record sent
to the district court.
See Rule 6-703(F)(2). The content of the motions
may be considered by the district court in its review of Defendant's motion to
dismiss.
{14} There were, in this
case, tape recordings of both trials apparently made by the magistrate court;
tape logs prepared by the court monitor are contained in the record on appeal.
We note that Rule
6-601(D) NMRA 2003 allows for a transcription of proceedings
in magistrate court, with prior approval of the judge, by the parties. A
"transcription" is defined in the rule as "a stenographic or
tape recording."
Id. We refer to transcriptions and transcripts
interchangeably in this opinion. Portions of the first trial, including the
bench conference, were transcribed from tape recordings of the first trial by
defense counsel's office. The written transcription was included as an
attachment to Defendant's motion to dismiss filed in the district court; it was
not admitted as an exhibit by either party in magistrate court, nor as far as
we can tell was it filed and included in the record on appeal from magistrate
court. Tape recordings of the second trial were included in the record sent to
this Court from the district court; we presume that they were included in the
magistrate court's record on appeal to the district court. It is unclear
whether the tape recordings of the second trial were transcribed other than the
portions of the pretrial conference included in the text of Defendant's brief
in chief. There is no suggestion that a written transcription of the tape
recordings of the second trial was admitted as an exhibit or was otherwise
filed in magistrate court.
{15} We address two matters.
First, are transcripts of criminal proceedings permitted in the record on
appeal from magistrate court? Second, if yes, were the transcripts properly
included in this case such that the district court may consider them in
reviewing Defendant's motion to dismiss? We address each in turn.
{16} As stated above, in this
case, tape recordings were made of the bench conference in the first trial and
the pretrial conference in the second trial during which the requested mistrial
was discussed. We hold that these transcripts from criminal proceedings in
magistrate court may be considered insofar as is necessary for a meaningful
review of a motion to dismiss on double jeopardy grounds. As for the procedure,
we observe that the rules of civil procedure for de novo appeals from
magistrate court require that "any transcript of the proceedings made by
the magistrate court, either stenographically recorded or tape recorded"
be included in the record on appeal. Rule
1-072(G)(5) NMRA 2003 (district court
rule); Rule
2-705(E)(5) NMRA 2003 (magistrate court rule). Since this procedure
is already set forth in de novo appeals for civil proceedings, the same
procedure shall be followed for the record on appeal in a criminal proceeding
such as this where Defendant alleges that a double jeopardy violation occurred
in magistrate court.
{17} Defendant suggests that
Rule 6-601(D), which limits the use of transcripts from magistrate courts, does
not apply in this case because transcripts are not being used for impeachment
purposes. We agree that the rule does not apply. The rule limits transcripts
from criminal proceedings in magistrate court to situations "permitted by
Paragraph N of Rule 5-503 of the Rules of Criminal Procedure for the District
Courts." Rule 6-601(D). Paragraph N, which, we observe, has not been a
part of Rule 5-503 since 2000, had concerned the use of deposition testimony
for impeachment purposes during trials.
See Rule
5-503(N) NMRA 2000. Our
holding concerns the use of transcripts to review a pretrial motion alleging a
double jeopardy violation and not the use of transcripts during trial; the
rule, therefore, is inapplicable.
{18} Insofar as Defendant's
transcription of his first trial was included as an attachment to Defendant's
motion to dismiss filed in the district court and was not part of the record on
appeal from the magistrate court, it should not be considered at this time.
Similarly, the portion of Defendant's brief in chief which contains his
transcription of the pretrial jury conference during which double jeopardy was
discussed should not be considered at this time. However, we note that Rule
6-703(G) allows for a correction or modification of the record on appeal if anything
material is omitted. Such a modification may be requested in this case.
Language identical to Rule 6-703(G) is contained in Rule 12-209(C). The rule on
record modification is "broadly worded" because, as our Supreme Court
emphasized when it interpreted Rule 12-209(C), "it is in the interest of
justice to allow the parties to properly present their claims on appeal."
State
v. Antillon,
2000-NMSC-014, ¶ 12,
129 N.M. 114,
2 P.3d 315. Moreover, the
Supreme Court declared, since the defense of double jeopardy cannot be waived,
it is "unjust to prevent the defendant from including evidence relevant to
[the] defense [of double jeopardy] in the record proper. The New Mexico
Constitution does not permit such a result."
Id. We believe that
the same interpretation of generous allowance for record modification applies
to Rule 6-703(G).
{19} When an appellate court
reviews a double jeopardy claim, it determines whether the trial court
exercised "sound discretion" in declaring a mistrial.
De Baca,
88 N.M. at 458-59, 541 P.2d at 638-39. District courts considering appeals from
magistrate courts, however, do not operate in the typical appellate capacity. §
35-13-2(A) ("Appeals from the magistrate courts shall be tried de novo in
the district court."). In its review of a pretrial motion to dismiss on
double jeopardy grounds in a de novo trial, the district court therefore is not
bound by what happened below.
City of Farmington v. Sandoval,
90 N.M.
246, 248,
561 P.2d 945, 947 ("If the district court were in any way bound
by the proceedings in the municipal court, it would not be a trial de novo, or
trial anew.") (internal quotation marks and citation omitted). It does not
then accord deference to the magistrate court's ruling; instead, the district
court makes an independent judgment based on the record before it on whether a
mistrial was properly granted.
See Hicks, 105 N.M. at 287, 731
P.2d at 983 (holding that, in considering an appeal de novo from the
metropolitan court's dismissal of charges against defendant, the district court
must make an independent determination of the metropolitan court's
discretionary decision and may not apply an abuse of discretion standard).
{20} In summary, the district
court may review events which transpired in the magistrate court in order to
review Defendant's pretrial motion to dismiss on double jeopardy grounds.
Transcripts and motions properly filed with the magistrate court and made part
of the record on appeal may be considered, as necessary, by the district court.
Accordingly, we reverse the district court's order denying Defendant's motion
to dismiss and remand for reconsideration of the merits of the motion.
C. Transcripts as Papers or
Exhibits Under Rule 6-703(F)
{21} Because transcripts are
designated separately from papers in our Supreme Court rules listing the
contents of the record on appeal, we conclude that transcripts are not papers.
See
Rules 1-072(G); 2-705(E);
7-703(F) NMRA 2003 (metropolitan court). Transcripts
that are properly admitted into evidence as exhibits may be part of the record
on appeal.
D. Written Order Declaring a
Mistrial and a Finding of Manifest Necessity
{22} We do not decide in this
appeal whether a mistrial was properly granted; that is for the district court
to determine on remand. However, in response to the district court's certified
question, we point out that the absence of a written order declaring a mistrial
and finding manifest necessity need not bar a second trial if the record
adequately discloses that a mistrial was properly granted.
Arizona v.
Washington, 434 U.S. 497, 516-17 (1978);
Callaway v. State,
109 N.M.
416, 418,
785 P.2d 1035, 1037 (1990) (reversing the grant of a mistrial
"irrespective of the fact the trial court failed to issue findings and
conclusions on why it ordered the mistrial");
State v. Reyes-Arreola,
1999-NMCA-086, ¶ 10,
127 N.M. 528,
984 P.2d 775 (rejecting defendant's position
that, by itself, the failure to enter a written order barred a second trial).
{23} The magistrate court in
this case did not enter a written order declaring there was manifest necessity
for a mistrial; instead, it handwrote "Motion Granted" on the State's
motion requesting the magistrate court "to order a mistrial, find manifest
necessity and to set a second jury trial date." While entering a separate
order may have avoided some confusion, we are mindful that magistrate court
proceedings are often conducted with a certain degree of informality.
See
State v. Sedillo,
2001-NMCA-001, ¶ 1,
130 N.M. 98,
18 P.3d 1051 (holding
that a judge's handwritten abbreviations on a complaint may be sufficient for a
fact finder to find the fact of a prior conviction). Accordingly, the absence
of a written order is not fatal, however, the district court must still
determine if there is a sufficient basis in the record for the finding.
See
State v. Saavedra,
108 N.M. 38, 40-43,
766 P.2d 298, 300-03 (1988)
(reviewing district court's findings and conclusions to determine if the
declaration of a mistrial was justified).
{24} For the reasons stated
above, we reverse the district court's denial of defendant's motion to dismiss
and remand for reconsideration consistent with this opinion.
CELIA FOY CASTILLO, Judge