State v. EricksenState v. Ericksen
- Reporters:
- ,
- Before:
- Walters
Lead
OPINION
WALTERS, Judge.Thе State contends that the judge designated to hear this case had no jurisdiction
Under ordinary circumstances, the State’s position is correct. See State v. Sweat, 78 N.M. 512, 433 P.2d 229 (Ct.App.1967). But this is not an ordinary case.
One judge of the Twelfth Judicial District had recused himself; the other had been disqualified. The Chief Justice designated Judge Marshall to “try said cause and to hear all matters incident to the trial thereof.” Having been designated by the Chief Justice, the parties had no statutory right to disqualify Judge Marshall. State v. McGhee, 41 N.M. 103, 64 P.2d 825 (1937); State v. Towndrow, 25 N.M. 203, 180 P. 282 (1919); see Lohbeck v. Lohbeck, 69 N.M. 203, 365 P.2d 445 (1961); State v. Lujan, 45 N.M. 103, 111 P.2d 541 (1941). Both in the trial court and in this appeal, the State has ignored the fact that Judge Marshall became the trial judge by the order of the Chief Justice.
The district attоrney sought to disqualify Judge Marshall pursuant to § 38-3-9(A), N.M.S.A.1978, after the judge had ruled upon several motions and had accepted the parties’ stipulation for a non-jury trial in this criminal proceeding. Even if there were a statutory right to disqualify a judge designatеd by the Chief Justice, the State’s affidavit of disqualification was thus untimely and the trial court properly refused to acknowlеdge its efficacy. State v. Hester, 70 N.M. 301, 373 P.2d 541 (1962).
Both State and defense counsel thereafter filed several additional pre-trial motions; and at 8:34 o’clock on the morning when pending motions were scheduled to be heard, the district attorney filеd his notice of nolle prosequi. At the time set for hearing the motions, Judge Marshall was advised by the State that “the nolle pros dismissal of the prosecution by the State of New Mexico * * • * effectively ends the criminal case in this particulаr cause,” but because it had been “dismissed without prejudice subject to refiling in the matter * * * this matter was refiled [in the Magistrate Court] shortly after the filing of the nolle pros this morning.”
The Court examined the newly filed criminal complaints and the affidavits for nеw arrest warrants; stated on the record that he found them to be virtually identical to the original indictments, and the State’s аction, therefore, merely a device to circumvent the disqualification limitations. The judge then gave the district attоrney two choices: to proceed with the motions hearing, or have the case against defendants dismissed with prеjudice. The district attorney argued that the State’s motives for filing the nolle prosequi were not relevant nor his discretiоn as a prosecutor subject to judicial review, and that the trial court had lost jurisdiction to do anything further in this matter. The court specifically found that the filing of the nolle prosequi was a “sham”; the district attorney made no denials and refusеd to proceed.
Within thirty days thereafter, the designated judge entered an order of dismissal “with prejudice and without leаve to refile,” together with findings and conclusions to the effect that the State’s conduct (outlined above) was “maniрulation * * * to obtain a favorable judge, or ‘forum shopping’ ” and that refusal of the State to proceed was failure to prosecute, thus justifying dismissal with prejudice.
Although considering a different procedural question, the type of cоnduct present here is exactly what was foreseen in State ex rel. Delgado v. Stanley, 83 N.M. 626, 495 P.2d 1073 (1972), when the Supreme Court warnеd that “the State must be prepared to demonstrate by proof the bona fides of the procedure it has utilized аnd that it has not been followed * * * to circumvent the operation of the rule.”
We heed the message of Delgado, supra, and apply the remedy blueprinted in that decision: We look past the form of the district attorney’s usual right to filе a nolle prosequi in any given case upon good cause and honest motives, and focus instead upon
We hold that the court below quitе correctly refused to recognize the district attorney’s attempts to dismiss and refile against these defendants. Acсordingly, Judge Marshall had authority to proceed in the matter. The ultimate order of dismissal with prejudice was invited by the district attorney’s considered election to suffer that result if he declined to proceed on the hearing scheduled. Wе have no criticism of the judge’s resolution of that stalemate.
The decision of the trial court dismissing the indictment against Ericksen, Procell, Crockett and Williams is affirmed.
WOOD, C. J., concurs. HENDLEY, J., specially concurs.
Concurrence Opinion
(specially concurring).
I concur in the majority opinion but feel that comment should be made regаrding the actions of the District Attorney. From the cold record, his actions were nothing more than a blatant attempt tо accomplish indirectly what could not be accomplished directly. The District Attorney was attempting to use his offiсe to satisfy his own personal ends. I am appalled at such behavior. It cannot be condoned.
I direct the Clerk of the Court of Appeals to forward a copy of the majority opinion and this concurring opinion to State Bar Counsel for investigation.