STATE V. GUTIERREZ, 2014-NMSC-031,
333 P.3d 247
CASE HISTORY ALERT: see ¶35 - affects
2012-NMCA-013
STATE OF NEW MEXICO,
Plaintiff-Respondent,
v.
JULIAN GUTIERREZ, Defendant-Petitioner.
SUPREME COURT OF NEW MEXICO
2014-NMSC-031, 333 P.3d 247
ORIGINAL PROCEEDING ON CERTIORARI, Drew D. Tatum,
District Judge.
Released for Publication September 16,
2014.
Daniel R. Lindsey, P.C., Daniel R.
Lindsey, John L. Collins, Jr., Clovis, NM, for Petitioner.
Gary K. King, Attorney General, Martha
Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Respondent.
CHARLES W. DANIELS, Justice. WE CONCUR:
BARBARA J. VIGIL, Chief Justice, PETRA JIMENEZ MAES, Justice, RICHARD C. BOSSON,
Justice, EDWARD L. CHÁVEZ, Justice.
AUTHOR: CHARLES W. DANIELS.
{1} This case involves
factually related issues of the boundaries between proper and improper
prosecutorial conduct in dealing with recalcitrant witnesses and of the
circumstances in which a mistrial and retrial may take place without violating
constitutional double jeopardy protections when a witness does not appear for
trial. Following federal double jeopardy principles in United States Supreme
Court precedent, we conclude that a prosecution witness’s failure to appear for
Defendant’s trial did not constitute manifest necessity for granting a mistrial
after a jury had been selected and sworn to hear his case. Because empaneling a
new jury and retrying Defendant would violate his double jeopardy protections
under the United States Constitution, we remand to the district court with
instructions to dismiss. Because of our holding, we do not decide any issues
relating to the scope of the Double Jeopardy Clause of the New Mexico
Constitution or whether the prosecution team inappropriately threatened the
witness.
{2} A Curry County
grand jury indicted Defendant Julian Gutierrez on three counts of criminal
sexual contact of a minor, contrary to NMSA 1978, Section
30-9-13(B)(2)(a)
(2003), based on the testimony of Defendant’s daughter that he touched or
pinched her breasts on several occasions when she was fifteen years old. At the
time of the alleged incidents, Defendant was estranged from his daughter’s
mother, who lived in Lubbock, Texas. After Defendant’s indictment, his daughter
moved out of their home to stay next door with her paternal grandparents.
{3} On Monday morning,
February 23, 2009, the first scheduled day of trial, Defendant informed his
attorney that he had been provided with a statement written by his daughter
that related to a recent visit by prosecution representatives to her school. In
its entirety, the statement said,
The da was telling me that if I
didnt go to the court they could take my son away. and she was try to say that
my dad touched me 6 time and I had told her that I told the oaisis people that
he just did it 3 time and that we were just playing. and she said that 6 times
is closer to 3 time and she told my principle and counsler that if it was OK
for them to pick me up tuesday morning at 8:30 and I told them that they have
to ask my parents first and she told me that they dont. and she had also made
me put my phone on the desk. She would not allow anyone in the room with us.
They were telling me that my grandparents house wasnt a good place for me to be
staying. Was telling me that I could get charges on me if I change my story.
and that I have someone to think about now that I have to make a good choice of
what I want.
When defense counsel asked for a hearing on the new
revelations, the prosecutor admitted not having disclosed to the defense
anything about the pretrial encounter at which the daughter attempted to recant
her grand jury testimony. After initially taking the position that she did not
have to do so, the prosecutor ultimately agreed to provide the defense with an
audio recording of the incident. The district court refused a defense request
to conduct an immediate hearing on the matter, proceeded to select and swear a
jury to hear the case, and recessed for the day, with testimony to begin the
next day, Tuesday, February 24.
{4} The next morning,
when Defendant’s daughter did not appear to testify and the State could not
locate her, the State asked the district court to make a finding of manifest
necessity and declare a mistrial. Defendant objected to granting a mistrial and
moved instead to dismiss with prejudice on the ground that the State’s officers
committed prosecutorial misconduct in inappropriately threatening the daughter
during their private encounter at the school. Without ruling on the motions or
proceeding further with the trial, the court issued a bench warrant for the
daughter’s arrest for failure to appear for trial and, despite the defense’s
argument that it was ready to go forward that day, temporarily released the
jury.
{5} At a brief hearing
two weeks later, the daughter still not having been located, the district court
declared a mistrial over the objection of the defense and permanently
discharged the jury. The court rejected Defendant’s argument that determining
manifest necessity required considering the “intertwined” matter of
prosecutorial misconduct in the encounter with the daughter, saying that it
would address the propriety of that encounter separately “at a later date.” The
court made no findings that Defendant contributed in any way to the daughter’s
nonappearance for trial or that the prosecution was unaware its witness might
not appear for trial when the jury was sworn, finding simply that there had
been “a jury fully empaneled and sworn and the victim having been served a
subpoena then failed to appear” and concluding that there was “manifest
necessity for retrial.”
{6} After the daughter
had been arrested on the bench warrant two weeks later, the court held hearings
on Defendant’s motions to dismiss for prosecutorial misconduct and to preclude
retrial for lack of manifest necessity justifying the mistrial. Evidence presented
at the hearings included an audio recording of the school encounter three days
before trial, the live testimony of the daughter, and the live testimony of the
police detective who had participated with the prosecutor and the district
attorney’s victim advocate in questioning the daughter at her school.
{7} The daughter, who
appeared with her separate attorney, testified that a few days before the
scheduled trial the State’s officials had her removed from class and taken to
“the officer’s room . . . inside the main office” where the door was locked and
her cell phone was removed from her immediate possession. Her testimony focused
on threats by the State’s officers to file perjury charges against her and take
away her young son after she told the prosecutor that her mother had influenced
her to make false charges against her father. She testified that the threats
scared her and caused her not to show up for the jury trial several days later.
After the school encounter, she wrote and delivered to her own lawyer the
letter that was delivered to defense counsel the morning of jury selection.
{8} The detective
admitted participating in the confrontation at the school at the request of the
lead prosecutor and admitted that the State’s representatives raised questions
about what might happen to the daughter’s baby but denied that anything they
said constituted a threat. His testimony emphasized that the State’s officers
were trying to get the daughter to tell the truth. Neither the prosecutor nor
the district attorney’s victim advocate, the other two participants in the
school questioning, testified.
{9} Although the State
had alleged in its brief requesting a mistrial that Defendant had been in some
way responsible for the nonappearance of his daughter, the record contains no
substantial evidence supporting the allegation. The daughter testified that her
father had nothing to do with her not showing up for court and that the only
reason she did not appear was because the prosecutor threatened to take her son
away. In addition, a filed affidavit by a boyfriend of the daughter represented
that it was his idea alone to take her to Texas after she told him tearfully
“that she wanted to leave” because the prosecution had threatened “to take her
child away” and “charge her with perjury if she did not testify the way they
wanted.”
{10} The most objective
and complete evidence of the school encounter introduced at the hearing was the
verbatim audio recording created by the State’s officers. It contained
corroboration for parts of what had been described in the testimony, both the
friendly admonitions to tell the truth and the warnings that the daughter could
be prosecuted for perjury and that her two-year-old son could be taken from her
if she did not appear at trial and testify consistently with her previous grand
jury testimony.
{11} The audio recording
begins with the prosecutor advising the daughter that “the reason we came here
is because you didn’t show up for our meeting” and confirming that the daughter
had received her subpoena and continues with the district attorney’s victim
advocate reminding the daughter of her previous warnings that she “had to show
up” in court if she received a subpoena. After the prosecutor said she wanted
to go over the expected testimony, the daughter attempted to recant her prior
allegations, saying that she had fabricated her grand jury testimony because
her mother had influenced her to do so.
Daughter: Actually,
my mom’s the one that told me to tell ya’ll that.
Prosecutor: That
you were going to get into trouble?
Daughter: No.
That, to tell ya’ll what happened.
Prosecutor: Did
your mom tell you to tell the truth?
Daughter: Mmm,
no. She just said tell them that. She didn’t say to tell them the truth.
Prosecutor: Okay
what is the truth?
Daughter: That
he didn’t do nothing.
Prosecutor: What
do you mean he didn’t do nothing?
Daughter: He
didn’t touch me or nothing.
Prosecutor: Okay.
You gave your statement under oath at the grand jury that [Defendant] did touch
you.
Daughter: I
know, because my mom had told me to.
Prosecutor: So
when you talked to Mr. Baskett at The Oasis [Children’s Advocacy Center], were
you lying?
Daughter: M-hm,
because my mom had told me. It’s on the messages that the detective has.
Prosecutor: So
what is the truth?
Daughter: That
he didn't do nothing.
Prosecutor: Okay.
Why did you say that he did?
Daughter: Because
I wanted to go live with my mom, but now I don’t.
{12} After expressing
their concerns that family members may have been pressuring her to change her
story and testify falsely, the prosecutor and the investigator then had the
following exchange with the daughter:
Prosecutor: Remember,
I talked to you and you swore, and if you say that it didn’t happen in court
this week,
Prosecutor: then
we can charge you with perjury for lying before. Do you realize that? Is that
what you want to do? Do you want to be faced with charges?
Investigator: And
what you need to be, what you need to be concerned with is you don’t, you need
to be concerned with yourself, and, and I guess you have a baby. Is that
correct?
{13} The investigator and
the victim advocate continued:
Advocate: So
you’re willing to get in trouble.
Investigator: Why
would you do that? If you get into trouble where’s your baby gonna go?
Investigator: So,
you’re saying you’re willing to get in trouble?
Investigator: If
you get into trouble, then your child is going where?
Investigator: Is
that what you want?
Investigator: But
you’re not willing to do anything about it. Is that what you’re saying?
{14} Following these
exchanges, the daughter yielded and partially recanted her recantation, telling
the State’s officers, “he did touch me, but we were playing.” During the
exchange, the advocate cautioned, “you just don’t change your story, hon.”
Before ending the encounter, the State’s investigator warned the daughter of
the likely outcomes for her two-year-old son if she failed to testify
appropriately:
Investigator: And, and if you don’t do what’s
right or you, you don’t get up there and say what you told [the prosecutor]
just now, . . . you’re putting your son in a situation that, number one, he has
absolutely no control over.
Investigator: Number
two, that he’s ultimately . . . , well, I can tell you at two years old, you
think if some, some stranger comes and picks him up,
Investigator: he’s
not gonna like that.
Investigator: Okay.
But that’s not just gonna stop right there. Just, you don’t like it. Don’t let
it happen to your son. Okay?
{15} After the
prosecution team told the daughter they would help her and would be there with
her at court, the prosecutor told her they would pick her up at school and take
her to trial to testify the following Tuesday morning.
{16} The district court
ultimately denied Defendant’s motions to dismiss for prosecutorial misconduct
in the school encounter and reaffirmed without further findings its earlier
manifest necessity mistrial ruling, but vacated the scheduled retrial to permit
Defendant to appeal.
{17} The Court of Appeals
affirmed the district court, holding both that the conduct of the State’s
officers did not constitute prosecutorial misconduct and that Defendant’s
federal and state constitutional protections against double jeopardy were not
violated because manifest necessity justified a mistrial when Defendant’s
daughter failed to appear as a witness after the first jury was sworn.
See
State v. Gutierrez,
2012-NMCA-013, ¶¶ 23, 36,
269 P.3d 905. We granted
certiorari to review those rulings.
See State v. Gutierrez,
2012-NMCERT-001.
{18} Both the United
States Constitution and the New Mexico Constitution guarantee that a state may
not compel a person to be “twice put in jeopardy” for the same criminal
offense. U.S. Const. amend. V;
N.M. Const. art. II, § 15;
see Benton
v. Maryland, 395 U.S. 784, 787, 794, (1969) (holding that the Fourteenth
Amendment secures to defendants in state prosecutions the protections of the
Double Jeopardy Clause of the Fifth Amendment, overruling
Palko v.
Connecticut, 302 U.S. 319 (1937)). Because Defendant has invoked the
protections of both constitutions, we apply our interstitial analysis and
consider first whether the federal claim is dispositive before conducting a
state constitutional analysis.
See State v. Lopez,
2013-NMSC-047,
¶ 8,
314 P.3d 236 (noting that where an asserted right is protected by the
federal constitution, there is no need to reach the counterpart state
constitutional claim).
{19} The Double Jeopardy
Clause of the United States Constitution not only guarantees that
the State with all its resources and
power should not be allowed to make repeated attempts to convict an individual
for an alleged offense, thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility that even though innocent he
may be found guilty,
but also protects “the defendant’s valued right to have his
trial completed by a particular tribunal.” Cnty. of Los Alamos v. Tapia,
1990-NMSC-038, ¶ 16, 109 N.M. 736, 790 P.2d 1017 (internal quotation marks and
citations omitted), overruled on other grounds by City of Santa Fe v.
Marquez, 2012-NMSC-031, ¶ 25, 285 P.3d 637. “Consequently, as a general
rule, the prosecutor is entitled to one, and only one, opportunity to require
an accused to stand trial.” Arizona v. Washington, 434 U.S. 497, 505
(1978).
{20} There is no question
in this case that jeopardy attached at the moment the district judge swore the
jury. Just a few weeks ago, the United States Supreme Court again reaffirmed
what it has “consistently treated as a bright-line rule: A jury trial begins,
and jeopardy attaches, when the jury is sworn,” whether or not a single witness
is ever called to testify.
Martinez v. Illinois, __ U.S. __, __, 134 S.
Ct. 2070, 2075-77 (2014) (per curiam) (holding that the Double Jeopardy Clause
precluded retrial of a defendant after the first jury was sworn, even though no
evidence was presented as a result of the prosecution’s inability to procure
attendance of its key witnesses).
{21} The only double
jeopardy issue in serious contention in this case is whether the district court
correctly determined that there was “manifest necessity” for discontinuing the
first trial and discharging the jury that had been sworn to try the case
because of the nonappearance of an important prosecution witness. While
manifest necessity mistrial rulings are reviewed for abuse of discretion,
see
Callaway v. State,
1990-NMSC-010, ¶¶ 8-10,
109 N.M. 416,
785 P.2d 1035
(reversing conviction after retrial and remanding for release of the defendant
for failure of the district court judge to “exercise a sound discretion” in
determining manifest necessity for declaring a mistrial), the United States
Supreme Court has made it clear that “the strictest scrutiny is appropriate
when the basis for the mistrial is the unavailability of critical prosecution
evidence.”
Arizona v. Washington, 434 U.S. at 508, 515-16 (holding that
an effective finding of manifest necessity was an exercise of “sound
discretion” where defense misconduct in raising inadmissible and prejudicial
matters before the jury created “the ‘high degree’ of necessity” for the
mistrial);
see also United States v. Fisher, 624 F.3d 713, 720, 723 (5th
Cir. 2010) (“hold[ing] that there was no manifest necessity,” concluding that
federal law does not apply a deferential standard of review “in an
unavailable-government-witness case,” and noting that all of the other eight
federal circuits deciding the issue have applied the
Arizona v. Washington
“strictest scrutiny” standard).
{22} The manifest
necessity standard has been a part of double jeopardy jurisprudence for most of
our nation’s history.
See United States v. Perez, 22 U.S. (9
Wheat) 579, 580 (1824) (requiring courts “to exercise a sound discretion” in
determining manifest necessity “to discharge a jury from giving any verdict”
and initiate a new trial). “The classic example [of the need for a second
trial] is a mistrial because the jury is unable to agree.”
Downum v. United
States, 372 U.S. 734, 736 (1963) (citing
Perez). When the situation
involves a deadlocked jury, “the trial judge should be allowed broad discretion
whether to declare a mistrial,” but “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.”
State v. Saavedra,
1988-NMSC-100, ¶¶ 9, 16,
108 N.M. 38,
766 P.2d 298 (emphasizing that a
“prosecutor must shoulder a heavy burden to justify the mistrial if the double
jeopardy bar is to be avoided” but not reversing the district court’s finding
of manifest necessity where defense counsel was stricken with illness during
trial and where the evidence supported the trial court’s findings that neither
a rescheduling with the existing jury nor other alternatives to a mistrial were
feasible).
{23} The United States
Supreme Court has not been hospitable to claims of manifest necessity resulting
from missing prosecution witnesses. In
Downum, the Court held that there
was no manifest necessity justifying a mistrial immediately after a jury was
sworn when the prosecution discovered that a key witness was not present to
testify, concluding that where the prosecutor “impaneled the jury without first
ascertaining whether or not his witnesses were present, he took a chance” and
could not avoid the consequences of his gamble that the witness would appear.
See
372 U.S. at 737 (internal quotation marks and citation omitted). The Court
therefore held that the Double Jeopardy Clause barred a retrial.
See id.
at 737-38.
{24} In this case, our
Court of Appeals distinguished
Downum and held that in the absence of
evidence that the prosecution knew its key witness would be unavailable to
testify, manifest necessity would justify a mistrial when the witness did not
appear.
See Gutierrez,
2012-NMCA-013, ¶¶ 14, 18. The opinion
below did not address the language in
Downum indicating that its
principle would apply even where the prosecution discovered “immediately after
the jury was impaneled” that its “evidence was insufficient.”
See Downum,
372 U.S. at 737-38.
Downum left some room for doubt as to its holding,
however, by also explicitly refusing “to say that the absence of witnesses ‘can
never justify discontinuance of a trial.’”
Id. at 736-37 (quoting with
approval
Wade v. Hunter, 336 U.S. 684, 685, 687-88 (1949), in which a
court martial had to be stopped and begun anew during the Third Army’s rapid
advancement across German territory in World War II because “the tactical
problems of an army in the field were held to justify the withdrawal of a
court-martial proceeding and the commencement of another one on a later day”).
{25} Whatever ambiguities
may have been created by
Downum have now been substantially lessened by
the United States Supreme Court’s recent unanimous opinion in
Martinez,
handed down after the Court of Appeals opinion was filed in this case.
Martinez
was an aggravated battery and mob action prosecution in which the state had
gone to great lengths to secure attendance of two reluctant key witnesses,
placing both under subpoena and having them come before the court to be ordered
to appear for trial.
See 134 S. Ct. at 2072. On the morning of the final
rescheduled trial and before jury selection, the state moved for a continuance
because the witnesses once again had failed to appear.
See id.
After giving the state some time to locate its witnesses while jury selection
and other matters were addressed, the trial court denied another continuance
and announced it was going to swear the selected jury and begin the trial
unless the state chose instead to voluntarily dismiss its case before jeopardy
attached.
See id. Instead of dismissing and avoiding having the
jury sworn, the state advised the court that it would “not be participating in
the trial.”
See id. at 2073. After the jury was sworn and the
State declined to make an opening statement or introduce evidence, the court
granted a directed verdict and ordered the charges dismissed.
See id.
{26} The Illinois Supreme
Court reversed, holding that the trial court erred in denying the requested
continuance and that because the defendant had never truly been placed in
jeopardy where the State refused to proceed before the sworn jury, the Double
Jeopardy Clause did not protect him against continued prosecution.
See id.
at 2073-74.
{27} The United States
Supreme Court reversed the Illinois Supreme Court, applying its bright-line
test in holding that jeopardy attached at the moment the jury was sworn,
whether or not the prosecution ever called a witness or participated in any
other way in the trial.
See id. at 2074-75. Although the Court
expressly based its holding in part on the fact that the trial court’s actions,
however named, constituted an acquittal under controlling precedents,
id.
at 2076, it followed with several pointed observations that are instructive in
interpreting both
Martinez and
Downum. First, it rejected
unrestricted judicial discretion that would allow routine witness
unavailability to bar protection from retrial:
Indeed, even if the trial court had
chosen to dismiss the case or declare a mistrial rather than granting
Martinez’s motion for a directed verdict, the Double Jeopardy Clause probably
would still bar his retrial. We confronted precisely this scenario in Downum
v. United States, 372 U.S. 734 . . . (1963), holding that once jeopardy has
attached, the absence of witnesses generally does not constitute the kind of
“‘extraordinary and striking circumstanc[e]’” in which a trial court may
exercise “discretion to discharge the jury before it has reached a verdict.” Id.,
at 736 . . . ; see also Arizona v. Washington, 434 U.S. 497, 508, n.24 .
. . (1978).
Martinez, 134 S. Ct. at 2076 n.4 (alteration in
original).
{28} In addition, in
terms equally applicable to the case before us, the Court emphasized that its
view of the binding constitutional effect of swearing a jury for the trial of
an accused need not result in “unfairness to prosecutors or to the public.”
See
id. at 2076. The Court acknowledged lawful alternatives for prosecutors
to avoid the strictures of the Double Jeopardy Clause when they may find
themselves without necessary witnesses, such as (1) seeking continuances, (2)
requesting that jury swearing be postponed until the appearance of needed
witnesses can be assured, and (3) as a last resort, voluntarily dismissing the
case before the trial judge swears the jury.
See id. at 2076-77.
But when “the State declined to dismiss its case, it took a chance[,] . . .
enter[ing] upon the trial of the case without sufficient evidence to convict.”
Id.
at 2077 (alterations and omission in original) (internal quotation marks
omitted) (quoting
Downum, 372 U.S. at 737).
{29} If there is any
reason to doubt that essential witnesses might not appear for trial,
prosecutors should ensure their presence before the jury is sworn. In this
case, there was substantial reason to question whether the daughter would
appear. She had already failed to appear at a scheduled pretrial interview at
the district attorney’s office, resulting in a prosecution team making a
surprise visit to her school, having her pulled out of class and cautioning her
about her obligation to appear in response to the subpoena. She had attempted
to recant her accusations against her father. The prosecution team expressed
concern several times in the private encounter about arrangements for the daughter
to appear for trial, telling her they would personally transport her to court.
And even before jury selection began, the prosecution learned of the daughter’s
handwritten declaration, which began with “The da was telling me that if I
didnt go to the court they could take my son away.” A simple request that the
judge not swear the jury until the key witness appeared at the courthouse,
especially where the prosecution had chosen to subpoena the witness to come to
court the day after jury selection, would have avoided the attachment of
constitutional jeopardy. Instead, the prosecution took a calculated risk and
“proceeded to trial in the face of a known risk that [the witness] would be
unavailable at trial.”
Walck v. Edmondson, 472 F.3d 1227, 1231, 1239 (10th
Cir. 2007) (prohibiting a retrial after the trial judge granted a mistrial when
an important government witness went into labor two weeks early).
{30} Trial judges also
should be mindful of the constitutional consequences of swearing the jury and
should consider delaying that significant step if there is a question whether
the trial will be able to continue to completion. In this case, once the court
realized there were issues to address regarding a recalcitrant witness, it
could have released the selected jurors with appropriate admonitions and
instructions to return the next morning to be sworn and begin hearing the case
and then could have released the unsworn prospective jurors without double
jeopardy consequences when the witness did not appear as scheduled. Once the
jury has been sworn and jeopardy has attached, declaration of a mistrial should
be avoided, particularly in the case of a missing witness. Postponing the
permanent discharge of the jury until the daughter was located just two weeks later
would have at least avoided the serious double jeopardy problem that the
declaration of mistrial created in this case.
{31} In this case,
Defendant never consented to a mistrial, vigorously opposing it at every
opportunity. And because the district court did not find that Defendant
procured the nonattendance of the witness, we do not address whether such a
hypothetical scenario could justify a mistrial and retrial where the first
sworn jury is discharged over the objection of a defendant. This case boils
down to a straightforward missing prosecution witness case without a district
court finding of extraordinary circumstances. Applying the federal strictest
scrutiny test and the guidance of the United States Supreme Court in
Downum
and
Martinez, we conclude that the district court abused its discretion
in declaring a mistrial under the circumstances of this case and that the
federal Double Jeopardy Clause therefore precludes further prosecution of
Defendant. Because of that dispositional holding, we need not consider whether
the Double Jeopardy Clause of the New Mexico Constitution would provide even
greater protection than its federal counterpart.
See State v.
Ketelson,
2011-NMSC-023, ¶ 10,
150 N.M. 137,
257 P.3d 957 (allowing
consideration of the possible broader protections of the New Mexico
Constitution where the United States Constitution does not protect the right
that Defendant claims).
B. Prosecutorial
Misconduct
{32} We also need not
decide whether Defendant is correct that the prosecution team’s conduct at the
daughter’s school constituted bad faith misconduct requiring dismissal, and we
therefore make no determination that the prosecution team acted out of bad
motives or with intent to have the witness testify falsely.
Cf. State
ex rel. Brandenburg v. Blackmer,
2005-NMSC-008, ¶ 2,
137 N.M. 258,
110 P.3d
66 (holding that “a victim advocate employed by a district attorney’s office is
part of the prosecution team”);
State v. Wisniewski, 1985- NMSC-079, ¶
21,
103 N.M. 430,
708 P.2d 1031 (noting that police officers involved in a case
are part of the prosecution team). But we caution that lawyers or the agents of
lawyers representing any party must avoid intimidating prospective witnesses or
pressuring them to testify in a particular way, regardless of a lawyer’s
personal belief about what is true and what is not. The State is correct in its
position that simply advising a witness about the realities of the perjury
statutes is not sanctionable misconduct.
See State v. Baca,
1997-NMSC-045, ¶¶ 35-36,
124 N.M. 55,
946 P.2d 1066 (holding that where there
is “nothing threatening or coercive” about the communication, “[i]t is not
improper to merely advise a witness that he could face prosecution for
perjury”),
overruled on other grounds by State v. Belanger,
2009-NMSC-025,
¶¶ 35-36,
146 N.M. 357,
210 P.3d 783. However, anything beyond a simple and
neutral advisement, even when conducted by a judicial officer, can cross
permissible boundaries.
See, e.g.,
Webb v. Texas, 409 U.S. 95,
97-98 (1972) (holding that a trial judge’s warnings to a defense witness about
the dangers of perjury infringed on the defendant’s due process rights where
the judge not only provided information of the consequences of perjury but also
implied that the judge believed the witness would lie and assured the witness
that if he lied he would be prosecuted for perjury and probably convicted);
United
States v. Jackson, 935 F.2d 832, 847 (7th Cir. 1991) (explaining that,
while no constitutional violation occurs where a prosecutor simply provides “an
unrepresented defense witness” with a truthful warning, there is a strong
inference of impropriety where “the substance of what the prosecutor
communicates to the witness is a threat over and above what . . . [is] timely,
necessary, and appropriate” (internal quotation marks and citation omitted));
United
States v. Morrison, 535 F.2d 223, 227-28 (3d Cir. 1976) (noting that the
actions of a prosecutor who repeatedly warned a prospective defense witness
about the possibility of perjury charges and conducted “a highly intimidating
personal interview” of the witness were completely unnecessary and violated the
defendant’s constitutional right to have the witness give evidence in the
defendant’s favor). We have found no precedent in this state or elsewhere that
condones going beyond merely advising a witness of direct perjury consequences
to raise the specter of collateral consequences, such as losing custody of
one’s own child.
{33} In addition to the
reported cases disapproving the intimidation of defense witnesses by
inappropriate threats, similar principles apply to attempts to shape the
testimony of a party’s own witness. The federal court in
United States v.
Juan, 704 F.3d 1137, 1140 (9th Cir. 2013), dealt with a situation in which
the alleged victim, called to testify by the prosecution in a domestic violence
case, attempted to recant previous accusations against her husband and then
recanted her recantation after prosecutors raised the prospect of perjury
charges with the wife’s attorney. Although the court held that the defendant
did not prove that any allegedly improper prosecution threats were relayed to
the witness by her attorney, it pointedly cautioned,
We have often stressed the
imperative that prosecutors and other officials maintain a posture of strict
neutrality when advising witnesses of their duties and rights. Violating this
duty by bullying a prosecution witness away from testimony that could undermine
the government’s case is no less distortive of the judicial fact-finding
process than improperly meddling with the testimony of a defense witness.
Regardless of whose witness is interfered with, the constitutional harm to the
defendant is the same—the inability to mount a fair and complete defense. We
see no reason to doubt that the government’s substantial interference with the
testimony of its own witnesses can violate the Due Process Clause.
See Juan, 704 F.3d at 1141-42 (internal
quotation marks and citation omitted); see also United States v.
Scheer, 168 F.3d 445, 458 (11th Cir. 1999) (reversing a conviction as a
result of the prosecution’s private intimidation of its own witness).
{34} Like the court in
Juan,
although we make no determination of misconduct we caution prosecutors—and
defense counsel as well—to avoid attempts to pressure witnesses into changing
their testimony, no matter what subjective good faith may arguably motivate
their efforts. Addressing perceived falsity in a more aggressive manner should
take place in open court and not in private encounters beyond the perception of
the court and opposing counsel.
{35} Under the Double
Jeopardy Clause of the United States Constitution, there was no manifest
necessity for releasing the sworn jury in this case and subjecting Defendant to
a second trial. We reverse the contrary decisions of the courts below and
remand with instructions to dismiss Defendant’s indictment.
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Chief Justice
PETRA JIMENEZ MAES, Justice
RICHARD C. BOSSON, Justice
EDWARD L. CHÁVEZ, Justice