1 N.M. Ct. App. 205
N.M. Ct. App.2012Background
- Defendant Julian Gutierrez was indicted on three counts of criminal sexual contact of a minor.
- Victim was Gutierrez’s then sixteen-year-old daughter and testified before a grand jury.
- Two weeks before trial, Victim was interviewed at school by the prosecutor, a special investigator, and Victim’s advocate; after the Interview, Victim fled the jurisdiction.
- During the Interview, prosecutors discussed subpoenaed appearance, warned about perjury, and suggested they could help Victim if she told the truth; Victim indicated inconsistencies with prior statements and said they were playing a game.
- Victim was unavailable for trial; defense moved to call the prosecutor as a witness or to dismiss; the district court dismissed the jury temporarily and later granted a mistrial for manifest necessity.
- Prosecutorial misconduct was separately reviewed; the district court denied a dismissal with prejudice, and Gutierrez appealed challenging manifest necessity, misconduct, and prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the mistrial’s manifest necessity properly supported? | Gutierrez argues no manifest necessity existed. | Gutierrez contends mistrial was improper and prejudicial. | Manifest necessity supported; mistrial affirmed. |
| Did prosecutorial conduct constitute double jeopardy bars on retrial? | Gutierrez asserts prosecutorial misconduct prohibits retrial. | Gutierrez argues misconduct violated due process and defense rights. | No prosecutorial misconduct requiring dismissal; retrial permitted. |
| Should the charges have been dismissed with prejudice due to prosecutorial conduct? | Gutierrez claims dismissal with prejudice is required for due process rights violation. | Gutierrez argues immediate and severe prejudice warrants prejudice dismissal. | Argument premature and undeveloped; not addressed on the merits. |
Key Cases Cited
- State v. Salazar, 124 N.M. 23 (1997) (double jeopardy and manifest necessity review standard)
- State v. Messier, 101 N.M. 582 (Ct. App. 1984) (witness unavailability and manifest necessity balancing test)
- Arizona v. Washington, 434 U.S. 497 (U.S. 1978) (importance of timing in witness availability for mistrial)
- Downum v. United States, 372 U.S. 734 (1963) (no manifest necessity when prosecutor knew witness unavailable before trial)
- Nielsen, 761 A.2d 876 (Me. 2000) (no manifest necessity where state proceeded despite possible unavailability)
- Baca, 124 N.M. 55 (1997) (warnings to a witness about perjury do not constitute improper conduct)
- Breit, 122 N.M. 655 (1996) (three-factor test for prosecutorial misconduct and retrial consequences)
- McClaugherty, NMSC 2008 (2008) (prosecutorial conduct reviewed under Breit framework)
- State v. Yazzie, 2010-NMCA-028 (2010) (manifest necessity depends on whether alternatives were explored)