{ "id": 1568768, "name": "STATE of New Mexico, Plaintiff-Appellee, v. William DUNN, Defendant-Appellant", "name_abbreviation": "State v. Dunn", "decision_date": "1979-03-27", "docket_number": "No. 3924", "first_page": "239", "last_page": "242", "citations": [ { "type": "official", "cite": "93 N.M. 239" }, { "type": "parallel", "cite": "599 P.2d 392" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "89 N.M. 499", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865664 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0499-01" ] }, { "cite": "89 N.M. 91", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867978 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0091-01" ] }, { "cite": "432 U.S. 23", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176310 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/432/0023-01" ] }, { "cite": "424 U.S. 600", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12027140 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/424/0600-01" ] }, { "cite": "400 U.S. 470", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047837 ], "weight": 5, "year": 1971, "opinion_index": 0, "case_paths": [ "/us/400/0470-01" ] }, { "cite": "89 N.M. 204", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866701 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0204-01" ] }, { "cite": "88 N.M. 240", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838625 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/88/0240-01" ] }, { "cite": "88 N.M. 454", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840322 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0454-01" ] }, { "cite": "91 N.M. 498", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571056, 1571123, 1571148 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/nm/91/0498-03", "/nm/91/0498-01", "/nm/91/0498-02" ] } ], "analysis": { "cardinality": 427, "char_count": 7573, "ocr_confidence": 0.8, "pagerank": { "raw": 1.0067541877801203e-07, "percentile": 0.5408772866680644 }, "sha256": "685c26061ce7211e9b28e97cf00827c10749c97d818cb6416bb3fcfba9a03176", "simhash": "1:83d8712ed2e61fec", "word_count": 1240 }, "last_updated": "2023-07-14T15:53:36.909287+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and WALTERS, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. William DUNN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant\u2019s conviction for escape from the penitentiary was reversed on the basis of Esquibel v. State, 91 N.M. 498, 576 P.2d 1129 (1978). During the retrial of defendant, the trial court ordered a mistrial because of an answer made by a defense witness during cross-examination. We granted an interlocutory appeal (see \u00a7 39-3-3(A), N.M.S.A.1978), because defendant may not be again tried on the escape charge if the mistrial was improperly granted. State v. De Baca, 88 N.M. 454, 541 P.2d 634 (Ct.App.1975); State v. Sedillo, 88 N.M. 240, 539 P.2d 630 (Ct.App.1975).\nDefendant and Cody escaped from the penitentiary together. Both were prosecuted for the escape. Both asserted duress as a defense. See Esquibel v. State, supra. Cody was acquitted. Prior to defendant\u2019s retrial, the trial court prohibited \u201cthe defense case from any reference by whatever means to the jury that a defense witness, Denny B. Cody, had been acquitted of the identical charge in a companion case to that at bar.\u201d\nDuring cross-examination the prosecutor asked the following question, and Cody gave the following answer:\n\u201cQ. (Mr. Berardinelli) How can you explain to this jury that both of you [defendant and Cody] have claimed that you escaped to save your lives; that both of you have claimed that notes were put on your beds and threats were made from unknown individuals because you were both supposed to be snitches?\nA. (Mr. Cody) Because that is true. You forget to mention that I was found not guilty of this same crime\u2014\n(Mr. Berardinelli) Objection, your honor.\u201d\nThe trial court instructed the jury to disregard the answer, explaining that what may have been determined with regard to Cody was \u201ccompletely irrelevant to the issues in this case.\u201d\nThe jury was then excused. The trial court inquired of defense counsel regarding compliance with its pretrial ruling to refrain from any reference to Cody\u2019s acquittal. Defense counsel informed the trial court \u201cthat he had adequately instructed the witness regarding this prohibition.\u201d Cody was then found to have been in contempt of court; this contempt ruling is not involved in this appeal.\nAfter the contempt ruling, the prosecutor moved for a mistrial. Defendant opposed the granting of a mistrial. The trial court ordered a mistrial, finding:\n[T]hat because of the intentional and unjustified injection of the testimony above-referred to, the Plaintiff [State] cannot obtain a fair trial, and that no amount of admonition to the jury and no less drastic procedure would cure the error or eliminate the prejudice to the State\u2019s case, and that manifest necessity has arisen thereby sufficient to justify granting said Motion, over objection by the defense.\nThe trial court found an \u201cintentional and unjustified injection\u201d of Cody\u2019s acquittal into defendant\u2019s trial. Although the finding is not specific, our understanding is that this intentional and unjustified conduct was by Cody, hence the finding of contempt.\nThe question was an open-ended one; the prosecutor asked Cody to \u201cexplain to this jury\u201d the similarity of the defenses to the escape charges. The answer cannot be characterized as totally unsolicited by the question that was asked. Compare State v. Baca, 89 N.M. 204, 549 P.2d 282 (1976). Although the answer improperly interjected Cody\u2019s acquittal into the case, this error can be viewed as having been invited by the prosecutor\u2019s question.\nViewing the prosecutor\u2019s question as having invited the improper answer, how does the open-ended question affect the propriety of the mistrial order? In this case it has no effect. The plurality opinion in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) points out that the trial court\u2019s decision to grant a mistrial requires \u201ca scrupulous exercise of judicial discretion\u201d and that such discretion is not to be exercised \u201caccording to rules based on categories of circumstances . . . .\u201d Jorn states:\n[W]e cannot evolve rules based on the source of the particular problem giving rise to a question whether a mistrial should or should not be declared, because, even in circumstances where the problem reflects error on the part of one counsel or the other, the trial judge must still take care to assure himself that the situation warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal.\nThere are no \u201cbright-line rules based on the source of the problem . .\u201d United States v. Jorn, supra. However, the double jeopardy clause \u201cbars retrials where \u2018bad-faith conduct by judge or prosecutor,\u2019 . threatens the \u2018[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict\u2019 the defendant.\u201d United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). See Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977).\nThe transcript does not show that the prosecutor\u2019s open-ended question was asked in bad faith or was in any way designed to obtain a declaration of a mistrial. The trial court did not find that the prosecutor acted improperly in asking the question. Accordingly, the prosecutor\u2019s conduct plays no part in our decision as to the propriety of the mistrial order. Nor does the intentionalness of Cody\u2019s answer play a part. The propriety of the mistrial is to be determined by whether there was a manifest necessity for the mistrial order, or by whether \u201cthe ends of public justice would be defeated by carrying the first trial [in this case the retrial] to a final verdict.\u201d State v. Aragon, 89 N.M. 91, 547 P.2d 574 (1976).\nCody\u2019s answer informed the jury that he had been acquitted \u201cof this same crime\u201d. Because of this answer, the trial court found that the State could not obtain a fair trial. Our function, on appeal, is to determine whether the trial court abused its discretion. United States v. Jorn, supra; State v. Sedillo, supra.\nDefendant claims the trial court abused its discretion by failing to consider alternatives to a mistrial. See State v. De Baca, supra. Obviously it did consider alternatives. The trial court first instructed the jury to disregard the answer, but after the contempt hearing, the trial court concluded that \u201cno amount of admonition and no less drastic procedure would cure the error or eliminate the prejudice to the State\u2019s case . . . .\u201d\nDefendant asserts the trial court failed to exercise \u201csound discretion\u201d in abandoning the \u201cless drastic alternative\u201d of an admonition to the jury. The trial court was of the view that an admonition to the jury could not eliminate the prejudice to the State\u2019s case. Compare Albertson v. State, 89 N.M. 499, 554 P.2d 661 (1976). The question of abuse of discretion necessarily turns on the trial court\u2019s view of prejudice. The trial court observed the witness and the impact of the witness\u2019s answer on the jury, we did not. Compare the situation in State v. Aragon, supra. Accordingly, we cannot hold that the trial court\u2019s view of prejudice to the State\u2019s ability to obtain a fair trial was an abuse of discretion.\nThe order declaring a mistrial is affirmed.\nIT IS SO ORDERED.\nHERNANDEZ and WALTERS, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "John B. Bigelow, Chief Public Defender, Martha A. Daly, Asst. App. Defender, Santa Fe, for defendant-appellant.", "Jeff Bingaman, Atty. Gen., Sammy J. Quintana, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "599 P.2d 392\nSTATE of New Mexico, Plaintiff-Appellee, v. William DUNN, Defendant-Appellant.\nNo. 3924.\nCourt of Appeals of New Mexico.\nMarch 27, 1979.\nJohn B. Bigelow, Chief Public Defender, Martha A. Daly, Asst. App. Defender, Santa Fe, for defendant-appellant.\nJeff Bingaman, Atty. Gen., Sammy J. Quintana, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0239-01", "first_page_order": 285, "last_page_order": 288 }