333 P.3d 247
N.M.2014Background
- Gutierrez was indicted on three counts of criminal sexual contact of a minor based on his daughter's testimony; the daughter moved out and the prosecution encountered her at school to obtain testimony.
- Before trial, the State disclosed a pretrial encounter where the daughter attempted to recant her grand jury testimony; defense requested an immediate hearing, which was denied.
- Trial began with jury selected and sworn; the daughter failed to appear and could not be located by the State.
- State sought a finding of manifest necessity to declare a mistrial; the court discharged the jury after two weeks without locating the daughter.
- Gutierrez objected to a mistrial and later sought dismissal with prejudice for prosecutorial misconduct; the court declared manifest necessity and set for retrial, which the Court of Appeals upheld.
- This Court reverses, holding the mistrial was improper under the federal Double Jeopardy Clause and remands to dismiss the indictment; no decision on state constitutional double jeopardy or prosecutorial misconduct is reached.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was manifest necessity to declare a mistrial after the key witness failed to appear. | Gutierrez argues no manifest necessity existed. | Gutierrez contends the unavailability of the witness did not justify mistrial under strict scrutiny. | No manifest necessity; mistrial improper. |
| Whether prosecutorial misconduct at the witness encounter requires dismissal or affects double jeopardy. | Gutierrez asserts prosecutorial misconduct. | Gutierrez warns about improper pressure on witnesses. | Issue not resolved on misconduct; guidance cautions against intimidation. |
| Whether the New Mexico Double Jeopardy Clause provides greater protection than the federal clause in this context. | Not reached; federal protection controls. | ||
| Whether swearing the jury before addressing witness nonappearance violated double jeopardy safeguards. | Court should have avoided swearing the jury if witness might be unavailable. |
Key Cases Cited
- Arizona v. Washington, 434 U.S. 497 (1978) (strict scrutiny for mistrial when evidence unavailable; respect for double jeopardy)
- Downum v. United States, 372 U.S. 734 (1963) (no manifest necessity when witness unavailable after jury sworn; retrial barred)
- Martinez v. Illinois, 134 S. Ct. 2070 (2014) (jeopardy attaches when jury is sworn; alternatives to mistrial urged)
- United States v. Fisher, 624 F.3d 713 (5th Cir. 2010) (discusses standard for manifest necessity in unavailable-witness cases)
- Walck v. Edmondson, 472 F.3d 1227 (10th Cir. 2007) (restrains double jeopardy when witness unavailable after jury sworn)
- United States v. Juan, 704 F.3d 1137 (9th Cir. 2013) (prosecution pressure on witnesses can violate due process)
- United States v. Scheer, 168 F.3d 445 (11th Cir. 1999) (prosecution influence on witness testimony)
- Wade v. Hunter, 336 U.S. 684 (1949) (military context illustrating limits of witness-related disruption)
- Perez, 22 U.S. (9 Wheat) 579 (1824) (origin of manifest necessity doctrine)