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State v. Hildreth

Court of Appeals of New Mexico

February 27, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
HENRY HILDRETH JR., Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY ROBERT A. ARAGON, DISTRICT JUDGE

          Hector H. Balderas, Attorney General Emily C. Tyson-Jorgenson, Assistant Attorney General Santa Fe, NM for Appellee

          Bennett J. Baur, Chief Public Defender Caitlin CM. Smith, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          LINDA M. VANZI, JUDGE.

         {¶1} Defendant Henry Hildreth Jr. appeals his misdemeanor and felony convictions for aggravated battery against a household member following a jury trial in which his attorney refused to participate. Defendant raises several arguments. First, Defendant argues, and the State concedes, that Defendant was denied his constitutional right to assistance of counsel. Second, Defendant argues the district court judge's conduct during trial should bar his retrial on double jeopardy grounds. Third, Defendant argues the district court abused its discretion in not granting his motions for a continuance and mistrial. Lastly, Defendant claims the amended judgment convicting him of two counts of aggravated battery against a household member based on a single incident constitutes double jeopardy. We agree that the absence of effective representation deprived Defendant of a fair trial and mandates reversal of his convictions. We disagree that the district judge's conduct bars retrial, and thus remand for retrial. In light of our rulings on these issues, Defendant's remaining arguments are moot.

         BACKGROUND

         {¶2}The parties do not dispute the following facts. Defendant was charged in 2016 with misdemeanor aggravated battery against a household member without great bodily harm, NMSA 1978, § 30-3-16(B) (2008, amended 2018) (Count 1), unlawful taking of a motor vehicle, NMSA 1978, § 30-16D-1 (2009) (Count 2), and felony I aggravated battery against a household member with great bodily harm (Count 3). Section 30-3-16(C). On July 11, 2016, Steven Seeger (Seeger) entered his appearance as defense counsel for Defendant. Seeger appeared with Defendant at his arraignment on October 21, 2016. Three days later, the district court entered a notice of hearing scheduling Defendant's case for a three-day jury trial starting March 14, 2017.

         {¶3}On Friday, March 10, 2017, Seeger filed a motion on behalf of Defendant seeking a continuance of the jury trial on the basis that, among other things, the State had filed its disclosures and witness list late. Specifically, the State had provided discovery the previous day in the form of a CD that Seeger had not yet had the chance to review. Defendant, who by then had not disclosed his own trial witnesses, stated that to "force [Seeger] to go to trial on March 14, 2017 would deny the Defendant effective assistance of counsel and thereby deny him his [Sixth] Amendment [right] to counsel." The parties appeared before the district court judge on the morning of March 10, 2017 for a pretrial conference, at which time the judge denied the motion for continuance. Seeger responded to the ruling by informing the court: "I will not be ready, your honor. I will not participate in the trial. I will be present but [I will] not participate." The judge said, "If that is true, then [Defendant] would have excellent grounds for appeal on incompetency of counsel," to which Seeger responded, "Absolutely. I will not participate." After the judge pointed out that the I trial date had been set for months and that Seeger had ample notice, the following exchange took place:

Judge: Well, Mr. Seeger, I've known you for years. I know you are an extremely competent and diligent attorney and it is precisely because of the potential arisal [sic] of contingencies such as you have just described that notice of trial in these cases [is] sent out far in advance of the date. My schedule cannot accommodate this case being placed number one on next month's docket. It's very simple.
Seeger: I'm not gonna do a C-minus job on the trial on Tuesday.
Judge: Well, then I guess you'll have to do an F-minus job and just sit there. I don't know-I can't tell you how to run your business, Mr. Seeger.
Seeger: That's my plan.

         Judge: Well, that's not a good plan. The district court suggested that Seeger raise any discovery issues by filing motions in limine before trial.

         {¶4}On the morning of trial, Seeger renewed Defendant's motion to continue as well as a motion for sanctions based on the State's late disclosures, which Seeger had filed the day before. Seeger explained that he did not have time to listen to the CD because he spent the weekend attending the wake of a co-worker and facilitating the reassignment of his co-worker's cases to other attorneys. The Stated responded that it did not come into possession of the CD ...


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