{ "id": 4239416, "name": "STATE OF NEW MEXICO, Plaintiff-Respondent, v. JULIAN GUTIERREZ, Defendant-Petitioner", "name_abbreviation": "State v. Gutierrez", "decision_date": "2014-08-07", "docket_number": "Docket No. 33,296", "first_page": "567", "last_page": "578", "citations": [ { "type": "official", "cite": "2014-NMSC-031" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "134 S. Ct. 2070", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12707008, 12580943 ], "weight": 13, "year": 2014, "pin_cites": [ { "page": "2075-77", "parenthetical": "per curiam" }, { "page": "2072" }, { "page": "2073" }, { "page": "2073-74" }, { "page": "2074-75" }, { "page": "2076" }, { "page": "2076" }, { "page": "2076-77" }, { "page": "2077", "parenthetical": "alterations and omission in original" } ], "opinion_index": 0, "case_paths": [ "/us/572/0833-01", "/s-ct/134/2070-01" ] }, { "cite": "168 F.3d 445", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11639663 ], "year": 1999, "pin_cites": [ { "page": "458", "parenthetical": "reversing a conviction as a result of the prosecution's private intimidation of its own witness" } ], "opinion_index": 0, "case_paths": [ "/f3d/168/0445-01" ] }, { "cite": "704 F.3d 1137", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3654151 ], "weight": 2, "year": 2013, "pin_cites": [ { "page": "1140" }, { "page": "1141-42", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/f3d/704/1137-01" ] }, { "cite": "535 F.2d 223", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1062313 ], "year": 1976, "pin_cites": [ { "page": "227-28" } ], "opinion_index": 0, "case_paths": [ "/f2d/535/0223-01" ] }, { "cite": "935 F.2d 832", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539512 ], "year": 1991, "pin_cites": [ { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/f2d/935/0832-01" ] }, { "cite": "409 U.S. 95", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171852 ], "year": 1972, "pin_cites": [ { "page": "97-98" } ], "opinion_index": 0, "case_paths": [ "/us/409/0095-01" ] }, { "cite": "2009-NMSC-025", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4243179 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "\u00b6\u00b6 35-36" } ], "opinion_index": 0, "case_paths": [ "/nm/146/0357-01" ] }, { "cite": "1997-NMSC-045", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 18637 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 35-36" } ], "opinion_index": 0, "case_paths": [ "/nm/124/0055-01" ] }, { "cite": "103 N.M. 430", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711292 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/103/0430-01" ] }, { "cite": "1985-NMSC-079", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 21" } ], "opinion_index": 0 }, { "cite": "2005-NMSC-008", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 929183 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0, "case_paths": [ "/nm/137/0258-01" ] }, { "cite": "2011-NMSC-023", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4250695 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0137-01" ] }, { "cite": "472 F.3d 1227", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 5197953 ], "year": 2007, "pin_cites": [ { "page": "1231, 1239", "parenthetical": "prohibiting a retrial after the trial judge granted a mistrial when an important government witness went into labor two weeks early" } ], "opinion_index": 0, "case_paths": [ "/f3d/472/1227-01" ] }, { "cite": "336 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3939222 ], "year": 1949, "pin_cites": [ { "page": "685, 687-88" } ], "opinion_index": 0, "case_paths": [ "/us/336/0684-01" ] }, { "cite": "108 N.M. 38", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592824 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/108/0038-01" ] }, { "cite": "1988-NMSC-100", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 9, 16" } ], "opinion_index": 0 }, { "cite": "372 U.S. 734", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765418 ], "weight": 8, "year": 1963, "pin_cites": [ { "page": "736", "parenthetical": "citing Perez" }, { "page": "737", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "737-38" }, { "page": "737-38" }, { "page": "736-37" }, { "page": "737" } ], "opinion_index": 0, "case_paths": [ "/us/372/0734-01" ] }, { "cite": "624 F.3d 713", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3794099 ], "year": 2010, "pin_cites": [ { "page": "720, 723" } ], "opinion_index": 0, "case_paths": [ "/f3d/624/0713-01" ] }, { "cite": "109 N.M. 416", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590306 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0416-01" ] }, { "cite": "1990-NMSC-010", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 8-10" } ], "opinion_index": 0 }, { "cite": "434 U.S. 497", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185127 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "505" }, { "page": "508, 515-16", "parenthetical": "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" }, { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/us/434/0497-01" ] }, { "cite": "285 P.3d 637", "category": "reporters:state_regional", "reporter": "P.3d", "year": 1978, "opinion_index": 0 }, { "cite": "2012-NMSC-031", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4190097 ], "year": 1978, "pin_cites": [ { "page": "\u00b6 25" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0468-01" ] }, { "cite": "109 N.M. 736", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590318 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/109/0736-01" ] }, { "cite": "1990-NMSC-038", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0 }, { "cite": "314 P.3d 236", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-047", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4077712 ], "pin_cites": [ { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm-app/5/0007-01" ] }, { "cite": "302 U.S. 319", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6140617 ], "year": 1937, "opinion_index": 0, "case_paths": [ "/us/302/0319-01" ] }, { "cite": "395 U.S. 784", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771730 ], "year": 1969, "pin_cites": [ { "page": "787, 794", "parenthetical": "holding that the Fourteenth Amendment secures to defendants in state prosecutions the protections of the Double Jeopardy Clause of the Fifth Amendment, overruling Pateo v. Connecticut, 302 U.S. 319 (1937)" } ], "opinion_index": 0, "case_paths": [ "/us/395/0784-01" ] }, { "cite": "2012-NMCERT-001", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "269 P.3d 905", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMCA-013", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4188546 ], "weight": 2, "pin_cites": [ { "page": "\u00b6\u00b6 23, 36" }, { "page": "\u00b6\u00b6 14, 18" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0205-01" ] } ], "analysis": { "cardinality": 1410, "char_count": 34621, "ocr_confidence": 0.772, "pagerank": { "raw": 6.28872926797028e-08, "percentile": 0.3873930487839252 }, "sha256": "28bad60ffa91039e4f990099e370aba95faf6d393873bc9a4bc0d5dca8de7643", "simhash": "1:93606c722b801da1", "word_count": 5597 }, "last_updated": "2023-07-14T17:19:17.637489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHARLES W. DANIELS, Justice", "WE CONCUR:", "BARBARA J. VIGIL, Chief Justice", "PETRA JIMENEZ MAES, Justice", "RICHARD C. BOSSON, Justice", "EDWARD L. CH\u00c1VEZ, Justice" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Respondent, v. JULIAN GUTIERREZ, Defendant-Petitioner." ], "opinions": [ { "text": "OPINION\nDANIELS, Justice.\n{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\u2019s failure to appear for Defendant\u2019s 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.\nI. BACKGROUND\n{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\u2019s 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\u2019s mother, who lived in Lubbock, Texas. After Defendant\u2019s indictment, his daughter moved out of their home to stay next door with her paternal grandparents.\n{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,\nThe 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.\nFebruary 20, 2009 /s/ Naomi Gutierrez\nWhen 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.\n{4} The next morning, when Defendant\u2019s 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\u2019s 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\u2019s arrest for failure to appear for trial and, despite the defense\u2019s argument that it was ready to go forward that day, temporarily released the jury.\n{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\u2019s argument that determining manifest necessity required considering the \u201cintertwined\u201d matter of prosecutorial misconduct in the encounter with the daughter, saying that it would address the propriety of that encounter separately \u201cat a later date.\u201d The court made no findings that Defendant contributed in any way to the daughter\u2019s 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 \u201ca jury fully empaneled and sworn and the victim having been served a subpoena then failed to appear\u201d and concluding that there was \u201cmanifest necessity for retrial.\u201d\n{6} After the daughter had been arrested on the bench warrant two weeks later, the court held hearings on Defendant\u2019s 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\u2019s victim advocate in questioning the daughter at her school.\n{7} The daughter, who appeared with her separate attorney, testified that a few days before the scheduled trial the State\u2019s officials had her removed from class and taken to \u201cthe officer\u2019s room . . . inside the main office\u201d where the door was locked and her cell phone was removed from her immediate possession. Her testimony focused on threats by the State\u2019s 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.\n{8} The detective admitted participating in the confrontation at the school at the request of the lead prosecutor and admitted that the State\u2019s representatives raised questions about what might happen to the daughter\u2019s baby but denied that anything they said constituted a threat. His testimony emphasized that the State\u2019s officers were trying to get the daughter to tell the truth. Neither the prosecutor nor the district attorney\u2019s victim advocate, the other two participants in the school questioning, testified.\n{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 \u201cthat she wanted to leave\u201d because the prosecution had threatened \u201cto take her child away\u201d and \u201ccharge her with perjury if she did not testify the way they wanted.\u201d\n{10} The most objective and complete evidence of the school encounter introduced at the hearing was the verbatim audio recording created by the State\u2019s 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.\n{11} The audio recording begins with the prosecutor advising the daughter that \u201cthe reason we came here is because you didn\u2019t show up for our meeting\u201d and confirming that the daughter had received her subpoena and continues with the district attorney\u2019s victim advocate reminding the daughter of her previous warnings that she \u201chad to show up\u201d 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.\nDaughter: Actually, my mom\u2019s the one that told me to tell ya\u2019ll that.\nProsecutor: That you were going to get into trouble?\nDaughter: No. That, to tell ya\u2019ll what happened.\nProsecutor: Did your mom tell you to tell the truth?\nDaughter: Mmm, no. She just said tell them that. She didn\u2019t say to tell them the truth.\nProsecutor: Okay what is the truth?\nDaughter: That he didn\u2019t do nothing.\nProsecutor: What do you mean he didn\u2019t do nothing?\nDaughter: He didn\u2019t touch me or nothing.\nProsecutor: Okay. You gave your statement under oath at the grand jury that [Defendant] did touch you.\nDaughter: I know, because my mom had told me to.\nProsecutor: So when you talked to Mr. Baskett at The Oasis [Children\u2019s Advocacy Center], were you lying?\nDaughter: M-hm, because my mom had told me. It\u2019s on the messages that the detective has.\nProsecutor: So what is the truth?\nDaughter: That he didn't do nothing.\nProsecutor: Okay. Why did you say that he did?\nDaughter: Because I wanted to go live with my mom, but now I don\u2019t.\n{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:\nProsecutor: Remember, I talked to you and you swore, and if you say that it didn\u2019t happen in court this week,\nDaughter: um-hmm,\nProsecutor: 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?\nDaughter: No.\nInvestigator: And what you need to be, what you need to be concerned with is you don\u2019t, you need to be concerned with yourself, and, and I guess you have a baby. Is that correct?\nDaughter: Um-hmm.\n{13} The investigator and the victim advocate continued:\nAdvocate: So you\u2019re willing to get in trouble.\nInvestigator: Why would you do that? If you get into trouble where\u2019s your baby gonna go?\nDaughter: Um, I don\u2019t\nInvestigator: So, you\u2019re saying you\u2019re willing to get in trouble?\nDaughter: Um-hmm.\nInvestigator: If you get into trouble, then your child is going where?\nDaughter: To a home.\nInvestigator: Is that what you want?\nDaughter: No.\nInvestigator: But you\u2019re not willing to do anything about it. Is that what you\u2019re saying?\n{14} Following these exchanges, the daughter yielded and partially recanted her recantation, telling the State\u2019s officers, \u201che did touch me, but we were playing.\u201d During the exchange, the advocate cautioned, \u201cyou just don\u2019t change your story, hon.\u201d Before ending the encounter, the State\u2019s investigator warned the daughter of the likely outcomes for her two-year-old son if she failed to testify appropriately:\nInvestigator: And, and if you don\u2019t do what\u2019s right or you, you don\u2019t get up there and say what you told [the prosecutor] just now,... you\u2019re putting your son in a situation that, number one, he has absolutely no control over.\nDaughter: I know.\nInvestigator: Number two, that he\u2019s ultimately . . . , well, I can tell you at two years old, you think if some, some stranger comes and picks him up,\nDaughter: um-hmm,\nInvestigator: he\u2019s not gonna like that.\nDaughter: Yeah.\nInvestigator: Okay. But that\u2019s not just gonna stop right there. Just, you don\u2019t like it. Don\u2019t let it happen to your son. Okay?\n{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.\n{16} The district court ultimately denied Defendant\u2019s 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.\n{17} The Court of Appeals affirmed the district court, holding both that the conduct of the State\u2019s officers did not constitute prosecutorial misconduct and that Defendant\u2019s federal and state constitutional protections against double jeopardy were not violated because manifest necessity justified a mistrial when Defendant\u2019s daughter failed to appear as a witness after the first jury was sworn. See State v. Gutierrez, 2012-NMCA-013, \u00b6\u00b6 23, 36, 269 P.3d 905. We granted certiorari to review those rulings. See State v. Gutierrez, 2012-NMCERT-001.\nII. DISCUSSION\nA. Double Jeopardy\n{18} Both the United States Constitution and the New Mexico Constitution guarantee that a state may not compel a person to be \u201ctwice put in jeopardy\u201d for the same criminal offense. U.S. Const, amend. V; N.M. Const, art. II, \u00a7 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 Pateo 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, \u00b6 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).\n{19} The Double Jeopardy Clause of the United States Constitution not only guarantees that\nthe 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 \u201cthe defendant\u2019s valued right to have his trial completed by a particular tribunal.\u201d Cnty. of Los Alamos v. Tapia, 1990-NMSC-038, \u00b6 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, \u00b6 25, 285 P.3d 637. \u201cConsequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.\u201d Arizona v. Washington, 434 U.S. 497, 505 (1978).\n{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 \u201cconsistently treated as a bright-line rule: A jury trial begins, and jeopardy attaches, when the jury is sworn,\u201d 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\u2019s inability to procure attendance of its key witnesses).\n{21} The only double jeopardy issue in serious contention in this case is whether the district court correctly determined that there was \u201cmanifestnecessity\u201d 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, \u00b6\u00b6 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 \u201cexercise a sound discretion\u201d in determining manifest necessity for declaring a mistrial), the United States Supreme Court has made it clear that \u201cthe strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence.\u201d Arizona v. Washington, 434 U.S. at 508, 515-16 (holding that an effective finding of manifest necessity was an exercise of \u201csound discretion\u201d where defense misconduct in raising inadmissible and prejudicial matters before the jury created \u201cthe \u2018high degree\u2019 of necessity\u201d for the mistrial); see also United States v. Fisher, 624 F.3d 713, 720, 723 (5th Cir. 2010) (\u201chold[ing] that there was no manifest necessity,\u201d concluding that federal law does not apply a deferential standard of review \u201cin an unavailable-government-witness case,\u201d and noting that all of the other eight federal circuits deciding the issue have applied the Arizona v. Washington \u201cstrictest scrutiny\u201d standard).\n{22} The manifest necessity standard has been a part of double jeopardy jurisprudence for most of our nation\u2019s history. See United States v. Perez, 22 U.S. (9 Wheat) 579, 580 (1824) (requiring courts \u201cto exercise a sound discretion\u201d in determining manifest necessity \u201cto discharge a jury from giving any verdict\u201d and initiate a new trial). \u201cThe classic example [of the need for a second trial] is a mistrial because the jury is unable to agree.\u201d Downum v. United States, 372 U.S. 734, 736 (1963) (citing Perez). When the situation involves a deadlocked jury, \u201cthe trial judge should be allowed broad discretion whether to declare a mistrial,\u201d but \u201cwhen 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.\u201d State v. Saavedra, 1988-NMSC-100, \u00b6\u00b6 9, 16, 108 N.M. 38, 766 P.2d 298 (emphasizing that a \u201cprosecutor must shoulder a heavy burden to justify the mistrial if the double jeopardy bar is to be avoided\u201d but not reversing the district court\u2019s finding of manifest necessity where defense counsel was stricken with illness during trial and where the evidence supported the trial court\u2019s findings that neither a rescheduling with the existing jury nor other alternatives to a mistrial were feasible).\n{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 \u201cimpaneled the jury without first ascertaining whether or not his witnesses were present, he took a chance\u201d 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.\n{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, \u00b6\u00b6 14, 18. The opinion below did not address the language in Downum indicating that its principle would apply even where the prosecution discovered \u201cimmediately after the jury was impaneled\u201d that its \u201cevidence was insufficient.\u201d See Downum, 372 U.S. at 737-38. Downum left some room for doubt as to its holding, however, by also explicitly refusing \u201cto say that the absence ofwitnesses \u2018can never justify discontinuance of a trial.\u2019\u201d 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\u2019s rapid advancement across German territory in World War II because \u201cthe 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\u201d).\n{25} Whatever ambiguities may have been created by Downum have now been substantially lessened by the United States Supreme Court\u2019s 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 \u201cnot be participating in the trial.\u201d 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.\n{26} The Illinois Supreme Courtreversed, 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.\n{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\u2019s 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 rej ected unrestricted judicial discretion that would allow routine witness unavailability to bar protection from retrial:\nIndeed, even if the trial court had chosen to dismiss the case or declare a mistrial rather than granting Martinez\u2019s 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 \u201c\u2018extraordinary and striking circumstanc[e]\u2019\u201d in which a trial court may exercise \u201cdiscretion to discharge the jury before it has reached a verdict.\u201d Id., at 736 . . . ; see also Arizona v. Washington, 434 U.S. 497, 508, n.24 . . . (1978).\nMartinez, 134 S. Ct. at 2076 n.4 (alteration in original).\n{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 \u201cunfairness to prosecutors or to the public.\u201d 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 \u201cthe State declined to dismiss its case, it took a chance[,] . .. entering] upon the trial of the case without sufficient evidence to convict.\u201d Id. at 2077 (alterations and omission in original) (internal quotation marks omitted) (quoting Downum, 372 U.S. at 737).\n{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\u2019s 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\u2019s handwritten declaration, which began with \u201cThe da was telling me that if I didnt go to the court they could take my son away.\u201d 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 \u201cproceeded to trial in the face of a known risk that [the witness] would be unavailable at trial.\u201d 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).\n{30} Trial judges also should be mindful of the constitutional consequences of swearing the jury and should consider del\u00e1ying 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.\n{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, \u00b6 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).\nB. Prosecutorial Misconduct\n{32} We also need not decide whether Defendant is correct that the prosecution team\u2019s conduct at the daughter\u2019s 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, \u00b6 2, 137 N.M. 258, 110 P.3d 66 (holding that \u201ca victim advocate employed by a district attorney\u2019s office is part of the prosecution team\u201d);State v. Wisniewski, 1985-NMSC-079, \u00b6 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\u2019s 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, \u00b6\u00b6 35-36, 124 N.M. 55, 946 P.2d 1066 (holding that where there is \u201cnothing threatening or coercive\u201d about the communication, \u201c[i]t is not improper to merely advise a witness that he could face prosecution for perjury\u201d), overruled on other grounds by State v. Belanger, 2009-NMSC-025, \u00b6\u00b6 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\u2019s warnings to a defense witness about the dangers of perjury infringed on the defendant\u2019s 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 \u201can unrepresented defense witness\u201d with a truthful warning, there is a strong inference of impropriety where \u201cthe substance of what the prosecutor communicates to the witness is a threat over and above what . . . [is] timely, necessary, and appropriate\u201d (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 \u201ca highly intimidating personal interview\u201d of the witness were completely unnecessary and violated the defendant\u2019s constitutional right to have the witness give evidence in the defendant\u2019s favor). We have found no precedent in this state or elsewhere that condones going beyond merely advising a witness of directperjury consequences to raise the specter of collateral consequences, such as losing custody of one\u2019s own child.\n{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\u2019s 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\u2019s 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,\nWe 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\u2019s 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 \u2014 the inability to mount a fair and complete defense. We see no reason to doubt that the government\u2019s substantial interference with the testimony of its own witnesses can violate the Due Process Clause.\nSee 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\u2019s private intimidation of its own witness).\n{34} Like the court in Juan, although we make no determination of misconduct we caution prosecutors \u2014 and defense counsel as well \u2014 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.\nIII. CONCLUSION\n{35} Under theDouble 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\u2019s indictment.\n{36} IT IS SO ORDERED.\nCHARLES W. DANIELS, Justice\nWE CONCUR:\nBARBARA J. VIGIL, Chief Justice\nPETRA JIMENEZ MAES, Justice\nRICHARD C. BOSSON, Justice\nEDWARD L. CH\u00c1VEZ, Justice", "type": "majority", "author": "DANIELS, Justice." } ], "attorneys": [ "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" ], "corrections": "", "head_matter": "IN THE SUPREME COURT OF THE STATE OF NEW MEXICO\nOpinion Number: 2014-NMSC-031\nFiling Date: August 7, 2014\nDocket No. 33,296\nSTATE OF NEW MEXICO, Plaintiff-Respondent, v. JULIAN GUTIERREZ, Defendant-Petitioner.\nDaniel R. Lindsey, P.C. Daniel R. Lindsey John L. Collins, Jr. Clovis, NM\nfor Petitioner\nGary K. King, Attorney General Martha Anne Kelly, Assistant Attorney General Santa Fe, NM\nfor Respondent" }, "file_name": "0567-01", "first_page_order": 583, "last_page_order": 594 }