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State v. Vanderdussen

Court of Appeals of New Mexico

April 5, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
STEVEN VANDERDUSSEN, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY Fred T. Van Soelen, District Judge.

          Hector H. Balderas, Attorney General Santa Fe, NM, John Kloss, Assistant Attorney General Albuquerque, NM for Appellee.

          Lindsey Law Firm, L.L.C. Daniel R. Lindsey Clovis, NM for Appellant.


          EMIL J. KIEHNE, Judge

         {¶1} Defendant appeals from the district court's order denying dismissal of the charges against him on double jeopardy grounds. The district court ruled that the magistrate court properly declared a mistrial based on manifest necessity, where a juror was discharged for stating that she could not be impartial after deliberations had begun and the alternate jurors were dismissed from the courtroom. Defendant argues that the magistrate court failed to consider less severe alternatives to a mistrial-namely, the magistrate court refused to call back the alternate jurors who remained in the courthouse-and, therefore, the mistrial was not based on manifest necessity. We hold that the mistrial was justified by manifest necessity and affirm the district court's denial of Defendant's motion to dismiss.


         {¶2} To frame our examination of the mistrial, we first address the limits of the record before us and the roles of the courts through which this case has traveled. Because charges were originally filed against Defendant in magistrate court, which is not a court of record, there is no record of the events that occurred there. See NMSA 1978, § 35-1-1 (1968) (establishing magistrate courts as courts not of record); Black's Law Dictionary 431 (10th ed. 2014) (defining "court of record" as "[a] court that is required to keep a record of its proceedings"). After the magistrate court declared a mistrial, the State refiled the same charges in district court. In district court, proceedings are held de novo. Cf. NMSA 1978, § 35-13-2(A) (1996) ("Appeals from the magistrate courts shall be tried de novo in the district court."); see State ex rel. Bevacqua-Young v. Steele, 2017-NMCA-081, ¶ 9, 406 P.3d 547 ("In a de novo appeal to the district court, there is a new trial on the entire case-that is, on both questions of fact and issues of law-conducted as if there had been no trial in the first instance." (internal quotation marks and citation omitted)). In the de novo proceedings here, Defendant filed numerous motions including a motion to dismiss for violation of the Double Jeopardy Clause, the subject of this appeal. Because the district court was not sitting in a typical appellate capacity, the district court was not bound by the magistrate court's decisions and was required to make an independent determination of whether manifest necessity supported the magistrate court's declaration of a mistrial. See State v. Foster, 2003-NMCA-099, ¶¶ 9, 19, 134 N.M. 224, 75 P.3d 824 (holding that because the magistrate court is not a court of record, appeals from there are heard de novo in district court, which required the district court to decide anew, without deference to the magistrate court, whether a mistrial was warranted). The district court, however, was bound by events that transpired in magistrate court and therefore was required to base its independent judgment on the limited record brought before it and the arguments made by counsel in district court. See id. ¶¶ 19-20; City of Farmington v. Piñon-Garcia, 2013-NMSC-046, ¶ 12, 311 P.3d 446 (stating that the history of a case in a court not of record is not disregarded when appealed to the district court for a trial de novo).

         {¶3} The State raises arguments in this case about Defendant's failure to more fully develop the record to establish error. It appears that, at least in the context of a challenge in district court to a plea agreement entered into in magistrate court, the district court is permitted to take evidence to clarify the limited record from magistrate court. See State v. Gallegos, 2007-NMCA-112, ¶¶ 16, 18, 142 N.M. 447, 166 P.3d 1101 (explaining that the district court properly conducted an evidentiary hearing to reconstruct the magistrate proceedings to allow it to fulfill its "obligation to determine the validity of the plea in order to determine its jurisdiction over the appeal"). Our Supreme Court has also explained that it is permissible for the district court to hold a hearing to reconstruct the magistrate proceedings when asked to decide whether the magistrate court acquitted the defendant on the merits or dismissed the complaint for a procedural violation. See State v. Baca, 2015-NMSC-021, ¶¶ 2, 27, 352 P.3d 1151.

         {¶4} In this case, the district court held a hearing on Defendant's motion to dismiss and relied on the limited magistrate court record and the parties' stipulation to facts, including the stipulation to the defense's offer of proof, in order to clarify events in magistrate court. There was no objection to this process. Also, neither the parties nor the district court asked that the record be supplemented with testimony from the magistrate judge to determine whether the magistrate judge considered less severe alternatives to a mistrial. We therefore decline the State's request to hold that it is a defendant's burden to re-create a complete record of the magistrate court proceedings. See Rule 12-321(A) NMRA ("To preserve an issue for review, it must appear that a ruling or decision by the trial court was fairly invoked."). In this appeal, we simply rely on the facts as they were presented to, and found by, the district court to review whether the declaration of a mistrial was an abuse of discretion. See State v. Baca, 2015-NMSC-021, ¶ 25 (stating that we review double jeopardy claims de novo and defer to the facts found by the district court, not the magistrate court, "because it was the district court that had to find the facts on which to apply the law in ruling on the motion to dismiss"); see also State v. Gutierrez, 2014-NMSC-031, ¶ 21, 333 P.3d 247 (noting that "manifest necessity mistrial rulings are reviewed for abuse of discretion").


         {¶5} Defendant was charged and tried in magistrate court for misdemeanor DWI and failure to maintain his lane. The case was tried before eight jurors-six regular jurors and two alternates. After the trial concluded and the jury was instructed on the law, the magistrate court dismissed the two alternate jurors and excused the six-person jury from the courtroom to deliberate. Approximately five minutes into deliberations, a juror informed the magistrate judge by note that she could not be impartial based on her personal and business dealings with Defendant's family. The magistrate judge walked into the courtroom, showed the note to the parties, and directed the parties to discuss the note in chambers. Defense counsel immediately turned to his legal assistant and instructed her to leave the courtroom to see if she could find the two alternate jurors. Defense counsel accompanied his legal assistant and saw that the two alternate jurors were still in the courthouse, standing in the lobby at a counter, doing paperwork or waiting to do paperwork. Defense counsel immediately walked back to chambers and asked the magistrate judge to call the alternate jurors back to determine whether they could still serve as impartial jurors and replace the biased juror. The State asked for a mistrial, and the defense objected. The magistrate judge rejected the defense's proposal without attempting to locate and question the alternate jurors, and declared a mistrial. Thereafter, the magistrate court entered a written order declaring a mistrial due to manifest necessity.

         {¶6} After hearing the parties' presentation of the facts and legal argument on the events in magistrate court, the district court took the matter under advisement. The district court also considered the parties' briefs on the matter and entered a detailed letter decision. The district court observed a lack of dispute that good cause existed to dismiss the juror who expressed bias regarding Defendant and framed the question as whether the magistrate court adequately inquired into alternatives to a mistrial. The district court further observed that the absence of a record made it difficult to determine whether alternatives to a mistrial were considered and acknowledged the parties' stipulation that the magistrate judge did not question the alternate jurors about their ability to serve after they were released. On the facts presented to it, the district court concluded that manifest necessity justified a mistrial, based on the district court rule governing alternate jurors, i.e. Rule 5-605(B) and (C) NMRA, and on a Supreme Court opinion holding that Rule 5-605 does not permit substitution of an alternate juror after jury deliberations have begun. See State v. Sanchez, 2000-NMSC-021, ¶¶ 1, 23, 129 N.M. 284, 6 P.3d 486. Defendant appeals from this ruling.


         {¶7} The Double Jeopardy Clause guarantees that no person shall be "twice put in jeopardy" for the same offense. U.S. Const. amend. V; N.M. Const. art. II, § 15. "However, the principles of double jeopardy do not prohibit retrying a defendant, even over the defendant's objections, after a mistrial that was justified by manifest necessity." State v. Desnoyers, 2002-NMSC-031, ¶ 33, 132 N.M. 756, 55 P.3d 968 (internal quotation marks and citation omitted), abrogated on other grounds as recognized by State v. Rivas, 2017-NMSC-022, ¶ 47, 398 P.3d 299. The burden of proving "manifest necessity" falls on the prosecutor, and the magnitude of that burden is appropriately characterized by its very terms. Arizona v. Washington, 434 U.S. 497, 505 (1978). Two requirements must be met for an appellate court to uphold a mistrial for manifest necessity. "First, the circumstances necessitating the mistrial must be extraordinary ones, sufficient to override the defendant's double jeopardy interests. Second, the trial judge must determine whether an ...

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