Lead Opinion
{1} Our Supreme Court reversed Defendant’s convictions in State v. McClaugherty,
{2} The district court originally dismissed the indictment against Defendant, finding that the prosecutor had misrepresented the contents of the statements. The State timely appealed the dismissal, but later sought to dismiss its appeal and reopen the motion hearing to allow the presentation of other evidence. The district court granted the State’s motion to reopen, heard more evidence in a succession of hearings, vacated its dismissal, and ordered a new trial in the case. From this order, Defendant now appeals. First, he asserts that NMSA 1978, § 39-1-1 (1953), operated to deny the State’s motions to dismiss the appeal and to reopen the evidence that were pending before the district court by operation of law because more than thirty days elapsed from their filing to their resolution. Because Defendant does not appeal the grant of the State’s motion to reopen, we do not address whether that motion was properly granted. Second, Defendant argues that pursuant to the New Mexico Constitution and Breit, the district court erred in allowing retrial. We affirm the district court.
FACTS AND PROCEDURAL BACKGROUND
The Trial and Appeal to the Supreme Court
{3} Defendant was tried and convicted of a number of serious crimes, including the first-degree (deliberate and felony) murder of Ricky Solisz. The critical issue was whether Defendant “shot,” and the only direct evidence of it came from the State’s informant. McClaugherty,
{4} In the cross-examination, the prosecutor, Kenny Montoya, questioned Defendant about his conversations with Sarah Tucker and Sherri Goen immediately after the shooting. When Defendant testified that he told them “I was there and I ran,” the prosecutor asked, “Is that all you told them?” At that point, the prosecutor asked Defendant, ‘You’re aware I’ve got statements?” and “[W]hy are they lying about you then?” The prosecutor then asked Defendant if he would be surprised that Tucker’s and Goen’s statements to the police indicated that Defendant admitted to them that he shot during the incident. This questioning continued through defense objections that the prosecutor was eliciting extrinsic evidence and hearsay.
{5} During re-direct examination, Defendant disagreed with the prosecutor’s version of those statements and testified that he had read the women’s statements and that they contained references to his denying any shooting. The prosecutor objected during the re-direct examination, arguing to the district court that defense counsel was eliciting a lie and stating, “[Defendant] said he shot. Do you want me to let that go? ... They both admit that he said he shot at the guys.”
{6} Neither Tucker nor Goen was called to testify at trial, and the statements that they made to the police were never admitted into evidence or presented to the district court. The State did not present rebuttal evidence, and the trial ended. The alleged “admissions” were not mentioned during closing arguments or at any other time during the trial.
{7} The Supreme Cоurt reversed Defendant’s convictions and held that the prosecutor’s cross-examination constituted an impermissible use of hearsay that sufficiently prejudiced the course of the trial to an extent that required reversal. Id. ¶¶ 3, 16, 35. The Supreme Court remanded the case for a new trial. Id. ¶ 35.
Motion to Bar Reprosecution and the State’s Appeal
{8} Upon remand for trial from the Supreme Court, Defendant filed a motion to impose a double jeopardy bar to retrial, alleging that the prosecutor had committed misconduct sufficient to trigger Defendant’s rights to be free from double jeopardy under the New Mexico Constitution and Breit,
{9} At the May 6, 2003 hearing on Defendant’s motion to bar retrial, Defendant introduced the statements Tucker and Goen made to the police, which were admitted as evidence by the district court. The State did not present witnesses or evidence at this hearing. The State conceded that the trial questioning by the prosecutor based on the witness statements was improper, but argued that in the context of the entire trial, such misconduct was isolated, was based on a good faith interpretation of the statements, and consequently did not merit barring reprosecution of Defendant under Breit.
{10} The district court reviewed the police statements given by Tucker and Goen and the trial transcript. It found that their statements were that Defendant “did not shoot and was not the shooter” and that the prosecutor had “grossly misreрresented” the content of the statements to the district court during trial. The district court concluded that had it known of the extent of the State’s misconduct at the time, it would have granted a mistrial. The district court found that the prosecutor “was actually aware, or must be presumed to have been aware, that his misconduct had the potential to result in a mistrial or a reversal,” and that he had made a “conscious and purposeful decision to dismiss any concern” of such a result. The district court granted Defendant’s motion, barred reprosecution, and dismissed the indictment with prejudice. The State timely filed its notice appealing this order on May 12,2003.
The State’s Effort to Reopen the Evidence
{11} On May 27, 2003, the State filed a motion to dismiss the appeal and a motion to reopen hearing as to barring of prosecution. It offered the testimony of the trial prosecutor that it stated “will be in direct contrast to the Court’s findings in its Order of Dismissal.”
Remand by the Court of Appeals for Action on the State’s Motions
{12} During this same period, Defendant applied to this Court for a dismissal of the State’s appeal because the State had not timely filed its docketing statement. See Rule 12-208(B) NMRA. We denied the motion to dismiss the appeal and remanded to the district court, directing that if the district court denied the pending motions, the State could file a docketing statement if it still desired to pursue its appeal. This Court did not comment on the effect, validity, or merits of the pending motions.
The Reopened Hearing
{13} On July 25, 2003, after the State filed its notice of appeal and subsequent motions, and following remand from this Court, the district court granted the State’s motions to dismiss the appeal and reopen the case, stating that it had discretion “to hear any additional matters that may not have been raised initially when the motion hearing was heard” on May 6. Defendant objected to this ruling, and the district court commenced to take evidence.
{14} The trial prosecutor testified that his questioning of Defendant was based on Goen’s statement of June 19, 1999, as well as a number of other unidentified statements. He agreed that his questioning of Defendant referred to “copies of statements” and that there was no statement by either Tucker or Goen other than the June 19 statements that 'was ever reduced to writing. He stated that his question — “So why are they lying about you then?” — referred to “all the statements I had in my hand,” including other witnesses than Tucker and Goen. He stated that he resumed his cross-examination after Defendant’s objection and a bench conference, asking Defendant, “[Wjould it surprise you to hear that [Tucker] gave a statement to the police 6/19/99” and later asking, “How about your roommate, Sherri Goen? Does it surprise you that she also made the same statement^] ... That you admitted shooting? ... Bragged about it?”
{15} The prosecutor testified that Tucker’s description of the night of the fight and its inconsistencies gave him his basis for his
{16} The prosecutor recalled the defense objection and bench conference. He stated, “I think [Defendant’s trial attorney] was saying that I was eliciting hearsay and I said I wasn’t. I wasn’t going to admit the evidence. I just wanted — and [the district court] actually told me how to form it in a better way.” “I think it was very important that I knew when I brought those questions up that Sherri Goen was in my office, said that [Defendant] went up bragging that he killed him and it was him. He did the shooting.” The prosecutor testified that during re-direct examination of Defendant, his argument to the bench — “He said he shot. Do you want me to let that go? ... They both admit that he said he shot at the guys,” — was based on Tucker’s June 19 statement, Goen’s June 19 statement, and Goen’s pretrial interview in his office.
{17} The State offered an affidavit from Goen dated July 23, 2003, as an exhibit during its redirect examination of the prosecutor, and the defense objected to it as hearsay. The State offered that the affidavit “goes also to Mr. Montoya’s reliance on Sherri Goen.” The district court admitted the affidavit. It then admitted, without objection, a February 2000 pretrial interview notice as evidence that the prosecutor met with Goen.
{18} The prosecutor testified that Goen had come to the district attorney’s office in 2000 and given a pretrial statement:
Myself, a defense attorney was there ... I’m sure I either had a female in there or female coming in because Sherri was a — I believe there’s somebody else. I couldn’t tell you who it is. Sherri Goen came in, broke down very quick, started crying, saying “I’m very afraid, got to let you know what happened. He came up, he was bragging that he shot him.” He said “we did it.” It’s very short in her conversation with us because she was so definite that he admitted to not just shooting, but bragging about it. At that point, it stopped. I don’t have any notes to show you about it. There’s not a tape. I asked Erica Garcia, my old secretary, to look for a tape. The way I usually run things like that, the [djefense attorney was there, he’s taping it himself. I believe, it was Bustamante, the [d]efense attorney and at that time, went out and we agreed on a plea because Ms. Goen was so definite____
{19} The prosecutor stated that a police officer had to be sent to bring Goen in, and that “there were a number of people in that interview.” He recalled a defense attorney, Ed Bustamante; a “female;” and “a detective or our own investigator.” He testified that this interview lasted less than two minutes. As to the basis for his questions, the prosecutor said that “there was very solid evidence especially with [Tucker] and [Goen], I believe, saying it in front of me, ‘He admitted to shooting and he was bragging about we shot them.’ ”
{20} Defendant’s former attorney Ed Bustamante was called as a witness and testified that he represented Defendant in 2000, but did not recall ever being present at a pretrial interview with Montoya and Goen. He testified that it is his practice to record and preserve the recordings of such interviews. He recalled that Goen was “an important witness” and that her interview was “rescheduled a lot,” but he did not believe she was ever interviewed.
{21} Other evidence established that the State offered a plea to Defendant on April 27, 2000. Interviews had been scheduled for Goen for February 24, 2000 and August 29, 2000. Montoya sent Bustamante a list of witnesses, including Goen, for an interview he planned to hold on August 16, 2000. The State called attorney Sandra Barnhart y Chavez, who testified that she represented Goen and had been contacted by a faxed subpoena dated August 29, 2000. Barnhart y Chavez recalled that the prosecutor, Goen, and she were the only persons present. The meeting took place for not more thаn an horn1
{22} Following these hearings, the district court stated that it had come to have doubts as to whether the Breit test had been satisfied. The district court remained convinced that if it had the transcripts of the two witness statements at trial, it would have granted a mistrial because it would have considered any curative instruction inadequate, thus meeting that element of the Breit test. The district court continued:
With respect to the third prong, it talks about the prosecutor’s acts must be in willful disregard, you know, and [Breit] defines what willful disregard means. In other words, I have to ask the question, was he actually aware of the potential consequences of his actions or even if he’s presumed to be aware of the potential consequences. And, again, I don’t think that it has risen to that level based upon the new information that I received. And certainly in the May hearing, if I’d have had all of this information before me, I think I probably would have been in a better position to make the decision.
... I don’t think that the last two prongs of [Breit ] have been met. When it talks about the prosecutor in this fashion, it’s talking about a prosecutor who knowingly and willfully does something improper; that he or she knows the conduct is improper and knows that a mistrial could result and purposely does that to gain some sort of advantage somehow. And after listening to Mr. Montoya and the other evidence, I don’t think that it’s come that far.
{23} The district court entered its order on September 29, vacating the May 8 order of dismissal and denying Defendant’s motion to bar further prosecution and to dismiss. The district court also certified this ease for interlocutory appeal pursuant to NMSA 1978, § 39 — 3—3(A)(3) (1972), directing the State to draft the appropriate order. Defendant filed his timely notice of appeal of the order.
THIS COURT’S JURISDICTION OF THIS APPEAL
{24} We initially address the State’s motion to dismiss this appeal for lack of jurisdiction. Defendant brings this appeal under State v. Apodaca,
{25} The State contends that Apodaca does not apply in this case because Defendant’s trial did not end in a mistrial as in Apodaca and that, therefore, Defendant’s appeal concerns, only the district court’s ruling on a non-final motion involving prosecutorial misconduct, a due process issue, not double jeopardy. We do not agree.
{26} Apodaca grants Defendant the right to directly appeal the district court’s order to this Court. See Apodaca,
{27} The Supreme Court reversed Defendant’s convictions in this case owing to the prosecutor’s improper use of hearsay statements in cross-examining Defendant. See McClaugherty,
JURISDICTION OF THE DISTRICT COURT
{28} On May 8, 2003, the district court dismissed the indictment on double jeopardy grounds after its initial hearing on May 6, 2003. The State filed its notice of appeal on May 12, 2003. On May 27, 2003, the State filed two motions in the district court. It moved to voluntarily dismiss its appeal, and it moved to reopen the hearing on Defendant’s motion to bar further prosecution. This Court remanded the case to the district court for the limited purpose of ruling on the State’s pending motions on July 17, 2003. The district court granted the State’s motion to dismiss the appeal and motion to reopen the hearing on barring of reprosecution on July 25, 2003. Subsequently, on September 29, 2003, after a hearing, it entered its order vacating its May 8, 2003 order of dismissal and denied Defendant’s motion to bar further prosecution.
{29} Defendant contends that the district court lacked jurisdiction to address the State’s motions to dismiss the appeal and to reopen the May 8, 2003 order based on the operation of Section 39-1-1. Section 39-1-1 reads in pertinent part:
Final judgments and decrees, entered by district courts in all cases tried pursuant to the provisions of this section shall remain under the control of such courts for a period of thirty days after the entry thereof, and for such further time as may be necessary to enable the court to pass upon and dispose of any motion which may have been filed within such period, directed against such judgment; provided, that if the court shall fail to rule upon such motion within thirty days after the filing thereof, such failure to rule shall be deemed a denial thereof}.]
The State contends that Section 39-1-1 did not restrict the district court’s ability to act on the State’s motion because its notice of appeal divested the district court of jurisdiction to act on issues directed to the district court’s ruling on appeal as long as the appeal was pending. The State relies on a line of cases holding that the filing of a notice of appeal removes the case from the district court’s jurisdiction except to rule on motions directed to the judgment that are pending at the time of the filing of the notice of appeal, motions in connection with perfecting the appeal, or motions collateral to the judgment. See Kelly Inn No. 102, Inc. v. Kapnison,
{30} We therefore must resolve the tension between Section 39-1-1 and case law addressing the effect of the filing of a notice of appeal. We do so as a matter of statutory interpretation that we review de novo on appeal. State v. Rowell,
{31} Section 39-1-1 applies to judgments that dispose of a case without a jury verdict. See Valley Bank of Commerce v. Hilburn,
{33} Although Section 39-1-1 has been discussed in the context of jurisdiction, by its language and history, Section 39-1-1 does not grant jurisdiction tо the district court, but, rather, limits the period of time that a district court may act on a case over which it has jurisdiction. It is the constitution that grants the district court its jurisdiction. N.M. Const, art. VI, § 13.
{34} Entirely separate from Section 39-1-1, our Supreme Court has clearly limited the ability of the district court to act in a case before it after a notice of appeal is filed. In Kelly Inn,
{35} In this case, the State filed its notice of appeal before it filed its motions to dismiss the appeal and to reopen the case. Its motion to reopen was directed to the district court’s order that was subject to the notice of appeal. The motion to reopen therefore was not collateral to the order subject to the appeal. See id. at 241-43,
{36} Indeed, the lack of such an exception makes sense. Otherwise, a losing party may proceed to attack a judgment both in this Court and in district court, causing inefficiency in the process. This Court recognized such an inefficiency in this case when, after the filing of the notice of appeal and Defendant’s motion to dismiss the appeal, it remanded the case to the district court for the limited purpose of. ruling on the State’s pending motions. At that point, this Court reinstated
{37} Section 39-1-1 does not controvert this analysis. Although Section 39-1-1 limits a district court’s time to act on a post-judgment motion, it clearly allows the court to act on such motions. Yet, in the circumstances of this case, in which the State filed its notice of appeal before its motion to reopen, the district court no longer had any ability to act on the motion.
{38} We interpret a statute to achieve the result intended by the legislature, and we will not construe a statute in a way that renders its application “absurd, unreasonable, or unjust.” Rowell,
{39} The cases upon which Defendant relies are not on point. They recognize that by virtue of Section 39-1-1 a motion can be deemed denied so as to affect the timеliness of an appeal or the record on appeal. See Wagner Land & Inv. Co. v. Halderman,
{40} Because the district cоurt could not have acted on the State’s motion to reopen the hearing until the appeal was dismissed, it was not deemed denied under Section 39-1-1.
MERITS OF MOTION TO REOPEN
{41} Although the dissent argues that the motion to reopen should not have been granted, we do not address the merits of that argument. Defendant did not raise it on appeal. See, e.g., State v. Rendleman,
MERITS OF MOTION TO BAR RETRIAL
{42} As set forth in Breit, under the New Mexico Constitution, we employ a three-part test to establish whether double jeopardy bars reprosecution as a result of prosecutorial misconduct: (1) the improper prosecutorial conduct must be “so unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial or a motion for a new trial;” (2) “the official knows that the conduct is improper and prejudicial;” and (3) “the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.” Breit,
{43} Double jeopardy bars reprosecution in only the rare and exceptionаl occasion; it is an “exceedingly uncommon remedy.” Breit,
{44} The district court concluded that the first part of the Breit test was met in this case, but that the second and third parts were not. If any of the three parts of the Breit test is not met, double jeopardy does not bar retrial. Because we do not believe that the third part has been met, we do not analyze the other parts in this ease.
{45} The third part of the Breit test requires that the prosecutor “either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.” Breit,
{46} The cases that hold that a prosecutor engaged in acts in willful disregard of the potential consequences of a mistrial or retrial serve as examples. In Breit, the prosecutor’s misconduct was pervasive throughout
{47} In State v. Huff,
{48} The questioning in this ease does not extend to the level of conduct of Breit and Huff. Although the questioning was improper, it was isolated and was not reflected in other parts of the trial, including closing. See, e.g., Haynes,
The Court finds that Mr. Montoya did not know or can be presumed not to have known that the conduct was improper and prejudicial. The Court finds that Mr. Montoya had an honest belief that his questions were proper.
As to the third part of the Breit test, the district court stated:
The Court finds that ... Mr. Montoya did not act in willful disregard. That Mr. Montoyaf’s] misconduct does not appear to be the result of a plan or scheme to inject unfair prejudice into the trial. Nor did Mr. Montoya seek a tactical advantage through his conduct or would the State would have gained [sic] a tactical advantage because of a mistrial.
{49} We must consider Defendant’s argument in the context of the trial as a whole. See Breit,
{50} Although the district court’s findings are laced with conclusions of law, we consider its observation that the prosecutor did not seek a tactical advantage and that the State would not have gained a tactical advantage by a mistrial to be significant. These factors were important to our analysis in State v. Lucero,
{51} Nor do we believe, as Defendant argues, that the timing of the prosecutor’s questions indicates the prosecutor’s willful disregard of the potential consequences of his actions. It is true that when improper questioning occurs late in a trial, it is more difficult to cure. Cf. Haynes,
{52} Lastly, we note our concern about the State’s reasons for initially declining to present evidence opposing Defendant’s motion to bar reprosecution. In its motion to reopen, the State asserted that it “did not call Kenny Montoya at the first hearing because it did not believe thе [c]ourt would rule in favor” of Defendant. It stated additionally that the prosecutor had recently been appointed to a statewide position. Defendant argued in response that the State should not be entitled to a second chance on the issue. The district court addressed the motion, and we have addressed the district court’s ruling on the merits. Nevertheless, we do not condone the State’s laxity in its approach. This case involves serious charges, and the State has the responsibility to act eommensurately. Cf. State v. Perkins,
CONCLUSION
{53} Section 39-1-1 did not deny the district court the ability to dismiss the State’s appeal and reopen the evidence in connection with Defendant’s motion to bar retrial for prosecutorial misconduct. The district court did not err in concluding that double jeopardy protections did not apply. We therefore affirm the ruling of the district court and remand for retrial.
{54} IT IS SO ORDERED.
Concurrence in Part
{55} I fully concur that we have jurisdiction to hear this appeal, and that Section 39-1-1 does not apply to situations such as we have here. I respectfully dissent from the majority opinion because this uncommon and extraordinary case represents two independent aspects, either of which merit reversing the district court; either to leave its original and proper dismissal of the case intact, or to dismiss the indictment as violating double jeopardy for the prosecutorial misconduct that occurred at trial.
{56} How common is a murder case in which: (1) thе prosecution represents at trial that it has two witnesses who heard the defendant confess to committing the crime, yet refuses to call either witness at trial; (2) the conviction is reversed for the prosecutor’s improper use of statements to the police purportedly given by those two witnesses in his cross-examination of the defendant; (3) at a subsequent hearing to bar reprosecution for prosecutorial misconduct, the State (represented by trial co-counsel) presents no evidence whatsoever, despite the lead trial prosecutor being available to testify at this hearing, but never having been contacted to do so. The district court discovers that the two “incriminating” statements cited by the prosecutor at trial reflect only the defendant’s denials of committing the crime, rather than any admissions; (4) as a result of being misled as to the contents of the statements, the district court dismisses the case as violating double jeopardy for prosecutorial misconduct, and the State thereafter requests to reopen the hearing in order to have the trial prosecutor testify. The State asserts as grounds that it put on no evidence because it did not “believe the Court would rule in favor in [sic] [Defendant”; (5) on the day before the hearing to reopen, and three and a half years after the trial, the State has one of those witnesses swear an affidavit that she gave a statement to the lead prosecutor in a previously undisclosed interview with that trial prosecutor, in which she stated that the defendant had admitted that he did not just “shoot” at the incident, but actually “killed [the victim].” The trial prosecutor then testifies he did not contemporaneously recоrd or take notes of this interview, never provided this statement to the defense, but moreover that he never had any intention to call that witness at trial, nor even mentioned the statement to his trial co-counsel until after the case had been dismissed when his original misrepresentation was discovered. While I concur that we have jurisdiction, I must respectfully dissent from the majority. The convergence of intentional action and generally inept practice in this case by the State results in circumstances justifying invoking double jeopardy to ban reprosecution.
I. REOPENING THE HEARING WAS AN ABUSE OF DISCRETION
{57} The law is well settled that a motion to reopen must cross a threshold of showing a good reason for the requesting party not presenting its case at the first hearing. See Sena v. N.M. State Police,
{58} The evidence presented to the district court on May 6, 2003, included the two statements given to the police by Tucker and Goen on June 19, 1999, and submitted by Defendant. The State did not request a continuance to procure any witnesses or obtain evidence for its case. Montoya was never contacted by the State prior to this hearing, although he was available to testify.
{59} The State’s argument at the May hearing conceded that the questioning by Montoya was improper, but asserted it was isolated misbehavior, based on a mistaken interpretation of the statements, and did not merit barring reprosecution of Defendant under Breit. The State did not dispute that the June 1999 Tucker and Goen statements in question contained no mention of Defendant admitting that he “shot,” nor does the State argue it now. The State offered no explanation of Montoya’s misrepresentation of the contents of the statements at trial. The “other” Goen statement, taken by Montoya
{60} The State rested its case on May 6. See generally State v. Martin,
{61} In May, the district court finally read the witness statements Montoya had declined to offer as evidence at trial. It found that Tucker and Goen’s statements were not that Defendant “shot,” but that Defendant “did not shoot and was not the shooter.” The district court found that it had been misled at trial by Montoya, and that given the witness statements, there was no assumption other than that Montoya should have known that his questioning was “totally improper and that [the questions’] impact on the jury was highly prejudicial.” The district court stated that it did not think “that any reasonable prosecutor would have asked those questions after reading those statements to the police.” It found that the prosecutor “was actually aware, or must be presumed to have been aware, that his misconduct had the potential to result in a mistrial or a reversal,” and that he had mаde a “conscious and purposeful decision to dismiss any concern” of such a result under Breit. The district court dismissed the indictment with prejudice. The district court entered its order on May 8, 2003, dismissing the case for Montoya’s misrepresentation of the witness statements and misleading the court.
{62} In moving for leave to reopen to present its entire case, the State never asserted that it wished to present any evidence it could not have presented on May 6. Instead, the State alleged that it had shirked its duty based on a belief that “the Court would [not] rule in favor in [sic] [Defendant” and that Montoya had been appointed to the National Guard. The State knew this was sub-par justification; when the motion to reopen was heard, State’s counsel began by conceding the lack of a good excuse: “Judge, I don’t shy away from my responsibility in that I probably should have called Kenny Montoya. I didn’t expect the court to assume the worst of Mr. Montoya and I was wrong.” Montoya himself testified that after the hearing, in talking with the State’s counsel, he was told by his former co-counsel that the latter “didn’t believe that motion was going to go anyway, kind of cake walk in and both surprised after that.”
{63} Defendant pointed out the State’s failure to either procure or present evidence. Defendant further objected that in seeking to reopen the case the State alleged no “legitimate reason for its failure to call Montoya at the May 6 hearing.”
{64} Granting of a motion to reopen a case to present evidence not previously offered is within the trial court’s discretion. See State v. Barragan,
{65} On July 25, the district court enunciated its exercise of discretion “to hear any additional matters that may not have been raised initially when the motion hearing was heard” (emphasis added) and granted the State’s motion to reopen. In this, the district court was wrong. There were no “additional matters” to be heard at all. No finding was made that the State was justified in its request. Reopening the hearing was an abuse of discretion.
{66} “A movant seeking permission to reopen its case must show some reasonable excuse.” Sena,
In considering a party’s motion to reopen its case to present additional evidence, the trial court should take into account all relevant factors, including the reason the party failed to initially offer such evidence; whether the opposing party will be surprised or unfairly prejudiced by the additional evidence; whether granting the motion would substantially delay the proceedings; the importance of the evidence to the movant’s case; and whether cogent reasons exist to deny the request.
{67} The State did not seek merely to reopen the case to present limited testimony on one issue as was allowed in Barragan,
{68} The prosecutor handling the May 6 hearing was co-counsel to Montoya at trial, yet did not talk with Montoya until Montoya “initiated a call” to him on May 6 after hearing from a reporter that the case had been dismissed. At that time, the prosecutor told Montoyа that he had expected a “cake walk.”
{69} It is not the role of a court to supply a remedy for the State’s unexcused failure to adequately prepare its case. The State clearly appraised its duties under Breit from the start; it acknowledged at the beginning of the May 6 hearing that “what is before the Court right now is Mr. Montoya’s improper questioning.” The prosecutor stated his awareness that the court’s inquiry included “whether the prosecutor acted in willful disregard of the resulting mistrial, retrial, or reversal,” examining “the prosecutor’s conduct in light of the totality of the circumstances of the trial.” The State clearly understood the issues, but perhaps not the gravity of its situation.
{70} The May 6 hearing was obviously no “cake walk.” City of Richmond v. Smith,
II. WHEN A PROSECUTOR DELIBERATELY TRANSGRESSES PRECEPTS OF TRIAL PRACTICE AND FAIR PLAY THAT HE IS LEGALLY PRESUMED TO KNOW, HE ACTS IN WILLFUL DISREGARD OF THE CONSEQUENCES
{71} The district court found in May 2003 that the prosecutor “was actually aware, or must be presumed to have been aware, that his misconduct had the potential to result in a mistrial or a reversal,” and that he had made a “conscious and purposeful decision to dismiss any concern” of such a result. I believe that this is the correct legal standard — that a prosecutor is presumed to be aware of proper conduct. Lucero,
{72} In this case, it is the prosecutor’s legally imputed knowledge that leads to the conclusion that he acted willfully. This is not a matter of weighing the evidence, but legal presumption. The law presumes a prosecutor knows the scope and import of the evidence, and knows the applicable rules of court, of evidence, and professional standards for his conduct. It is by this objective yardstick of his presumed knowledge that the prosecutor’s willful disregard of the consequences of his actions are most fairly judged. The district court, trying to establish its presumption that the prosecutor “did not know” things, attempted to ascribe his behavior to subjective attributes such as inexperience and negligence. Unfortunately, the evidence establishes the prosecutor’s extensive experience, and though his conduct fell below minimal levels, the district court’s later negative presumption cannot excuse his conduct in this context.
{73} Breit is quite definite in excluding prosecutorial “good faith” as an unworkable standard, thereby rejecting the subjectivity allowed under Kennedy,
{74} The one thing the State asserts in its defense — the “second” Goen statement — is the very thing that Montoya knowingly and purposefully suppressed and refused to present at trial, while attacking Defendant and his counsel as liars and misleading the court as to the nature of the “other statements” he “had in his hand.” In fact, the evidence supports the conclusion that he never intended to introduce any of the statements as evidence. I would hold that the requirements of Breit,
{75} At the bench during his examination of Defendant, Montoya specifically abjured any intention of presenting the statements or their declarants, Tucker and Goen. As a result of Montoya’s later testimony, we know that he had no intention of presenting either witness to substantiate any of Defendant’s alleged “admissions.” At the end of trial, Montoya complained that that defense counsel had “elicited a lie” when Defendant testified that the June 19th statements contained no statements that he had admitted “shooting”:
Mr. Montoya: [Defendant] said he shot. Do you want me to let that go?
The Court:What does the statement say?
Mr. Montoya: They both admit that he said he shot at the guys.
[Defense Attorney]: The portion I have[,] he specifically asked her, “Did he tell you he shot?” And she said no. If they want to bring her in and try and get the testimony out of her, I suppose that’s their decision, but this should have never come in in the first place, [sic]
The Court: Are you asking now to get into that statement? Is that what you’re wanting to do?
Mr. Montoya: I just want to show it to them, but I think it’s a past point.
The Court: All right. Hang on. You don’t have any other witnesses, right?
[Defense Attorney]: No, that’s it.
The Court: Do you have any rebuttal?
Mr. Montoya: No, your Honor.
The trial ended.
{76} According to Montoyа three years later, it was not the June 1999 statements, but the “statement [Goen] gave in the office” where she said Defendant “bragged about [the shooting]” upon which his questions were based. Montoya recalled, “I think Ms. Aragon [Defendant’s trial attorney] was saying that I was eliciting hearsay and I said I wasn’t. I wasn’t going to admit the evidence.” The Supreme Court made it clear that Montoya was dead wrong about whether he was using hearsay.
{77} Montoya explained, “I think it was very important that I knew when I brought those questions up that Sherri Goen was in my office, said that he went up bragging that he killed him and it was him. He did the shooting.” The use of this totally undisclosed hearsay statement at trial would have been no less improper than Montoya’s use of the other hearsay statements that caused the reversal of defendant’s conviction by the Supreme Court in McClaugherty,
{78} The prosecutor’s misconduct necessitated the reversal of Defendant’s conviction. The other two Breit requirements are that “the official knows that the conduct is improper and prejudicial”; and “the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.” Breit,
{79} In ruling on the case in September, the district court stated from the bench:
The second prong where the — where the prosecutor states that he must know that his conduct is improper, and I really have some doubts about this particular prong. I mean, it — Mr Montoya came here and testified and said that he believed that what he was doing was proper; that he believed the information backed him up to ask those questions. It may amount to negligence. It may amount to poor lawyering, perhaps inexperience ... being somewhat naive, but I got the impression that he honestly believed that what he was asking at trial was okay and was proper to do.
{80} The district court’s impression is irrelevant. First, our Supreme Court recognizes “gross negligence” as a type of prosecutorial misconduct that has resulted in double jeopardy barring reproseeution. Breit,
{81} The district court’s September final order found “that Mr. Montoya did not know or can be presumed not to have known that the conduct was improper and prejudicial,” and “that Mr. Montoya had an honest belief that his questions were proper.” (Emphasis added.) The State argues that the district court’s finding that Montoya was a credible witness whose “honest belief that his questions were proper” is based on substantial evidence and should end our consideration. That standard is incorrect; the district court erred in conflating Montoya’s subjective intent, which is irrelevant under Breit, against well established legal presumptions of Montoya’s knowledge, which are legally sufficient to satisfy the second Breit prong. Even if the prosecutor had a good faith basis for his questions, the statements “should not have been used on cross-examination.” McClaugherty,
{82} Breit is based on prosecutorial conduct, not prosecutorial intent. “Honest belief’ and its sister “good faith” are subjective considerations that are not relevant when the law objectively presumes prosecutors to possess certain knowledge. See, e.g., McClaugherty,
What a Prosecutor May Legally Be Presumed to Know
{83} The district court’s ascribing the prosecutor’s lack of knowledge to “negligence” or “poor lawyering, perhaps inexperience in handling those types of cases, being somewhat naive” is misplaced. “[T]here must be a point at which lawyers are conclusively presumed to know what is proper and what is not.” Pool v. Superior Court,
{84} Huff provides little refuge to the State. In Huff, we held Breit’s knowledge test was satisfied by presuming knowledge on the part of a prosecutor who introduced “irrelevant, misleading, and prejudicial testimony.” Huff,
{85} The practice of injecting improper matters through cross-examination is so broadly prohibited that a presumption that prosecutors know to avoid the practice is warranted. “It is improper under the guise of ‘artful cross examination’ to tell the jury the substance of inadmissible evidence.” United States v. Sanchez,
{86} We consistently hold that counsel should not argue facts outside the record, looking to ABA Prosecution Standards and other accepted norms as benchmarks by which to gauge prosecutorial conduct. See State v. Martinez,
Prior recorded statements which are materially inconsistent with the testimony of a witness may be introduced as substantive evidence of the content of the prior statement if the person who elicited, witnessed, or recorded the statement is available for confrontation and cross-examination and after the witness has been given an opportunity, under oath, to explain or deny the prior statement.
(Emphasis added).
{87} “[A] prosecutor may not use impeachment as a guise for submitting to the jury substantive evidence that is otherwise unavailable.” United States v. Silverstein,
{88} Our Supreme Court recently held that our 1990 dеcision in State v. Flanagan,
{89} “A prosecutor who cross-examines in the form of leading questions, which he has a right to do, is the witness who testifies before the jury, not the defendant. The questions asked [in this case] were equivalent of testimony by the prosecutor[.]” Bartlett,
{90} The prosecutor had no intention of presenting the statements, stating, “I wasn’t going to admit the evidence.” See McClaugherty,
{91} “[N]either a prosecutor’s good faith belief that some basis for [his or] her question exists nor reassurances to appellate courts drawn from information never presented below will suffice.” United States v. Elizondo,
{92} Montoya is clearly presumed by law to know what is improper conduct, particularly as the precepts involved here are neither obscure nor complicated. The fact that he intentionally pursued this conduct, by intentionally refusing to present the true evidenee
Given the Prosecutor’s Intentional Conduct, He Acted in Disregard of its Consequences
{93} “[WJhether the prosecutor’s conduct amounts to willful disregard of a resulting mistrial, retrial, or reversal, the appellate court will carefully examine the prosecutor’s conduct in light of the totality of the circumstances of the trial.” State v. Pacheco,
{94} Montoya’s conduct in this regard was deliberate. His testimony showed that he was aware defense counsel “brought up the point to go and show the statement that said basically that no, you really don’t know because she never said that, and I felt so strong about it at the time I objected.... I felt so strongly about it, as I said, Ms. Aragon was trying to elicit untruths out of the defendant and let you know I did object in front of the jury.” Montoya was clearly attempting to characterize Defendant and his counsel as liars, and specifically refusing to present the statements despite any urging by the district court or the defense to do so. The heat of the moment carried him into foul territory.
{95} In Huff, the prosecutor was presumed to know that the foundation of the questions she put to a doctor was based on incomplete information. Huff,
{97} Montoya vividly described his frustration with Defendant when Defendant “wouldn’t say he shot, he wouldn’t say anybody shot” — to a point where he felt compelled to bring up what he felt were “admissions” — through statements the Defendant did not make, or “prior inconsistent statements.” See McClaugherty,
{98} The majority’s reliance on the district court’s finding that the State did not seek a “tactical advantage” at trial, nor would it have gained one by Montoya’s misconduct strains credulity. The Supreme Court pointed out that the evidence at trial as to Defendant’s “shooting” was not particularly strong. Id. ¶ 10. The June 19 statements were never before the district court or the Supreme Court. By lying about the content of the police statements, Montoya certainly tried to gain a tactical advantage. First, Montoya misrepresented statements that plainly stated that Defendant denied ever shooting, and intentionally created the impression that Defendant had admitted shooting. Second, his comments at trial and subsequent testimony overwhelmingly show that Tucker and Goen were witnesses whose statements he did not want to see the light of day, and whom he had no intention of ever calling to testify. Third, given what Montoya tells us was the content of Goen’s “secret” statement, that statement goes significantly farther than even Montoya’s misrepresentations at trial to establish not just “shooting,” but specifically shooting the victim. Montoya did not ever mention Goen’s other statement prior, during or after trial — until his misconduct had been discovered three years later.
{99} Montoya did not call these witnesses at trial in his case in chief, and the presumption that he knew the contents of their statements demonstrates why — it would have been disadvantageous to have their recounting Defendant’s contemporaneous denials of ever shooting. Instead, Montoya chose to sandbag Defendant at the very end of the trial in a manner that was calculated to gain an advantage and preserve it against discovery of the true nature of the evidence. The advantages gained' — asserting Defendant’s admission, presentation of false evidence in the guise of statements by absent witnesses, using the prosecutor’s own credibility to assert the veracity of Defendant’s “admissions” by using improper cross examination — combine to form the final impression the jury had of the case before the end of the trial. The majority gives short shrift to the timing of this misconduct, but given the way Montoya played out his misconduct, the timing is essential to understand how willful the misconduct was, as well as the gravity of its effect on Defendant’s right to a fair trial.
The Timing of the Misconduct Weighs Against the State
{100} Montoya testified that he made no mistake when he asked his questions. Montoya
{101} When misconduct occurs early in a trial, or with time and opportunity to cure the problem, dismissal will not be a suitable remedy. Cf. Haynes,
{102} The interjection of these “admissions” left the impression that the prosecutor possessed information about such admissions, when there was no evidence to that effect before the jury. See, e.g., Gershman, supra, § 10:30. The central issue was whether defendant “shot.” No witness was called to the stand who heard Defendant admit to shooting. Instead, assertions that they had made “statements to police” concerning alleged “admissions” were thrown at the Defendant when he took the stand. We must presume the prosecutor knew the two June 1999 statements did not contain an admission by Defendant, and that their use was improper bootstrapping of hearsay. Even if the questioning had referred to the other Goen statement it would be no less a foul blow. That the conduct — asserting that Defendant had admitted shooting' — happened at the very end of trial was certain to affix the impression of Defendant’s guilt in the jury’s mind more firmly.
{103} The cases that guide us on what level of misconduct is necessary to merit a dismissal of a prosecution following mistrial or reversal continually use language such as “so unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial.” State v. Fielder,
CONCLUSION
{104} I emphasize that this case is truly unusual. The evidence at trial was not conclusive, as the Supreme Court pointed out,
{105} The additional testimony taken from July through September 2003 served to show that our long-standing legal presumptions concerning prosecutorial knowledge of proper standards for conducting trials are well-founded. It is inconceivable to me that given these presumptions, a competent prosecutor with the experience possessed by Montoya would embark upon such a venture into impropriety without knowing the ultimate effect of his actions. The heat of the moment in a weak case is no excuse to strike the foul blow prosecutors are prohibited from striking. See Berger v. United States,
{106} For either or both of the grounds enunciated above, I would reverse the district court.