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Certiorari Granted, January 25, 2012, No. 33,296

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-013

Filing Date: October 25, 2011

Docket No. 29,997

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

JULIAN GUTIERREZ,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF ROOSEVELT COUNTY

Drew D. Tatum, District Judge

Gary K. King, Attorney General

Santa Fe, NM

M. Anne Kelly, Assistant Attorney General

Albuquerque, NM

for Appellee

Daniel R. Lindsey, P.C.

Daniel R. Lindsey

John L. Collins

Clovis, NM

for Appellant

OPINION

GARCIA, Judge.

{1} Defendant Julian Gutierrez was granted a direct appeal and certification of the district

court’s amended decision letter denying Defendant’s motion to dismiss. Defendant was

indicted on three counts of criminal sexual contact of a minor, contrary to NMSA 1978,
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Section 30-9-13(B)(2)(a) (2003). Defendant raises three issues on appeal: (1) whether the

district court erred in declaring a mistrial on the basis of manifest necessity, (2) whether

prosecutorial misconduct bars retrial of Defendant, and (3) whether Defendant’s right to

present a defense and due process rights require dismissal of all charges with prejudice. We

affirm. 

I. FACTUAL AND PROCEDURAL HISTORY

{2} A grand jury indicted Defendant on three counts of criminal sexual contact of a

minor. Victim, Defendant’s then sixteen-year-old daughter, testified at the grand jury

hearing. A few days before trial, on February 22, 2009, the prosecutor interviewed Victim

at her school (the Interview). The merits of Defendant’s direct appeal rest on the contents

of the Interview. The Interview lasted approximately one-half hour and included Victim, the

prosecutor, a special investigator, and the victim’s advocate. Following the Interview,

Victim fled the jurisdiction.

{3} During the Interview, the prosecutor explained that the purpose of the Interview was

to prepare Victim for trial, make sure she received her subpoena, and confirm she would

appear. The prosecutor asked Victim about her living arrangements. Victim said she was

living with her grandmother next door to Defendant. Victim indicated that her grandparents

had not spoken to her about testifying but that her grandmother told her she was going to get

herself into a “whole bunch of trouble,” and her grandfather no longer wanted her to live

there.

{4} The prosecutor wanted to go over the police report with Victim to make sure she still

remembered the incidents. Victim recanted, said Defendant never touched her, and

explained that her mother told her to lie to the grand jury. The prosecutor told Victim that

she could be charged with perjury if she did not testify consistently with her prior statements.

The prosecutor asked if she wanted to be faced with charges. The prosecutor and the

victim’s advocate also stressed that they were there to help Victim. They explained that

they were worried Victim’s family was threatening her and said they could find her another

place to live. The special investigator asked Victim where her baby would go if she got into

“trouble” and if she was willing to get into trouble and see her child sent to a home. Victim

then said that her father had touched her, but they were playing a game. The special

investigator told Victim she should tell the truth at trial, and if the truth was that she and

Defendant were playing a game, that is what Victim should say. The prosecutor and special

investigator stressed that Victim needed to tell the truth, but they made it clear that her grand

jury testimony was that Defendant had touched her. The prosecutor and the special

investigator commended Victim for remaining in school while raising a child and told her

she should be proud. They also discussed driving Victim to the courthouse.

{5} Victim was not present the morning of trial. During an in-chambers hearing, defense

counsel filed a written motion in open court to call the prosecutor as a witness or, in the

alternative, to dismiss the charges. Defense counsel argued that the prosecution improperly
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threatened Victim during the Interview. The State responded that no one threatened Victim

and that the State was concerned with reports that Defendant and his family, with whom

Victim lived, were pressuring Victim. The State also moved for mistrial on the basis of

Victim’s unavailability and asked the district court to issue a bench warrant for Victim’s

failure to respond to her subpoena. The district court noted that with regard to intimidation,

there was much “speculation as to what exactly occurred, if anything.” Similarly, the court

explained that Victim fled the jurisdiction and, therefore, could not discuss why she fled.

Before deciding whether a mistrial or dismissal was appropriate, the district court wanted

to do more research and asked both parties for additional authority. The district court

temporarily dismissed the jury but kept them impaneled. The prosecutor again asked for a

bench warrant for Victim’s arrest due to her failure to appear pursuant to a subpoena.

{6} Approximately two weeks later, the district court granted the State’s motion for

mistrial. Explaining that the present issue was only whether a mistrial was appropriate at

that time, the court reserved ruling on Defendant’s motion to dismiss. The court found

manifest necessity due to Victim’s unavailability and released the jury that had been

impaneled for two weeks. To determine whether a mistrial was appropriate, the district court

relied on the law and did not utilize the tape of the Interview. Defense counsel made a

proffer at the mistrial hearing and asserted that the court should use the Interview to establish

whether the prosecutor was coercing and threatening Victim.

{7} The district court held a separate hearing on Defendant’s motion to dismiss for

prosecutorial misconduct. The special investigator and Victim both testified about the

Interview. Victim said she felt “kind of scared” because the prosecutor and the special

investigator told her they could take her son away if she failed to appear for court. Victim

also explained that she fled because she was afraid the prosecutor would take her son. After

reviewing the actual recording of the Interview and the parties’ briefs, the district court

issued its amended decision letter denying Defendant’s motion for dismissal. The court

found no prosecutorial misconduct and again said that there was manifest necessity for a

mistrial. A direct appeal was then filed by Defendant.

II. DISCUSSION

{8} Defendant argues on appeal that there was no manifest necessity for mistrial, and

double jeopardy bars retrial of the charges. U.S. Const. amend. V; N.M. Const. art. II, § 15.

Defendant also argues that this Court should dismiss the charges with prejudice because the

prosecutor’s conduct had an immediate and severely prejudicial impact on his rights to

present a defense and violated due process.

A. PROPRIETY OF THE MISTRIAL

{9} When the district court declares a mistrial, double jeopardy precludes retrial unless

the defendant consented to the mistrial, or manifest necessity compelled the mistrial. State

v. Salazar, 1997-NMCA-088, ¶ 5, 124 N.M. 23, 946 P.2d 227. The district court ruled that
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manifest necessity compelled a mistrial in the present case. “A motion for a mistrial is

addressed to the sound discretion of the trial court and is only reviewable for an abuse of

discretion.” Id. ¶ 4 (internal quotation marks and citation omitted). “No mechanical rule

exists for determining the existence of manifest necessity. The standard involves a careful

weighing of [the] defendant’s right to have his trial completed and the public’s interest in

a fair trial and just judgment.” State v. Messier, 101 N.M. 582, 584, 686 P.2d 272, 274 (Ct.

App. 1984). “An appellate court should be wary of substituting its judgment for that of the

trial court.” State v. Alberico, 116 N.M. 156, 170, 861 P.2d 192, 206 (1993).

{10} The absence or unavailability of a key prosecution witness may fall within the

parameters of manifest necessity. Messier, 101 N.M. at 585, 686 P.2d at 275. In Messier,

this Court held that when a critical state witness is unavailable for trial, it is not an abuse of

discretion for the district court to declare mistrial on the basis of manifest necessity. Id. at

584-85, 686 P.2d at 274-75. Mistrial, however, is not proper merely to allow the state to

strengthen its case, where the state seeks a mistrial in bad faith, or where the witness is

absent due to prosecutorial neglect. Id. at 584, 686 P.2d at 274. “Determination of the

propriety of manifest necessity must be made under the particular facts of each individual

case.” Id. at 584-85, 686 P.2d at 274-75.

{11} Defendant attempts to distinguish Messier by arguing that the State acted in bad faith

in seeking a mistrial, and the district court did not explore reasonable alternatives to mistrial.

We disagree.

1. Bad Faith

{12} Defendant claims the State, believing that Victim would testify inconsistently with

her grand jury testimony, participated in her absence or encouraged her not to testify. As

such, Defendant believes the State acted in bad faith in seeking the mistrial. A prosecutor

acts in bad faith when an action is “designed to afford the prosecution a more favorable

opportunity to convict.” State v. Mestas, 93 N.M. 765, 767, 605 P.2d 1164, 1166 (Ct. App.

1980).

 

{13} Due to Victim’s failure to appear at trial pursuant to a subpoena, the district court

found that this key witness was unexpectedly unavailable for the purposes of manifest

necessity. In considering its ruling, the district court did look at whether the State in some

way encouraged Victim’s unavailability. To determine the propriety of whether manifest

necessity existed, we strongly defer to the district court’s factual determination of the reason

behind the witness’s unavailability. See Salazar, 1997-NMCA-088, ¶ 9 (explaining that the

trial court performs a fact-finding role in resolving disputes and should be given “wide

latitude” in making factual determinations). Nonetheless, in instances “when the basis for

the mistrial is the unavailability of key prosecution evidence . . . the strictest scrutiny is

necessary.” State v. Saavedra, 108 N.M. 38, 42, 766 P.2d 298, 302 (1988).

{14} We conclude that where a mistrial is granted due to witness unavailability, the
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central question is whether the prosecutor was aware that the critical witness was unavailable

before the jury was impaneled and sworn, thus acting in bad faith in seeking a mistrial. See

Arizona v. Washington, 434 U.S. 497, 508 n.24 (1978) (“If . . . a prosecutor proceeds to trial

aware that key witnesses are not available to give testimony and a mistrial is later granted

for that reason, a second prosecution is barred.”); see also Downum v. United States, 372

U.S. 734, 737 (1963) (finding no manifest necessity when prosecution’s key witness failed

to attend trial where district attorney impaneled a jury without serving prosecution witness

with a summons and made no other arrangements to assure the witness would attend); United

States v. Gallagher, 743 F. Supp. 745, 749 (Or. 1990) (finding manifest necessity for mistrial

when an essential government witness abruptly and unexpectedly announced that he was a

liar and refused to answer questions after both parties had emphasized witness’s testimony

in opening statements); McCorkle v. State of Maryland, 619 A.2d 186, 190 (Md. Ct. Spec.

App. 1993) (explaining that the crucial question for manifest necessity due to witness

unavailability is whether the prosecution was aware of witness unavailability at the time

jeopardy attaches).

{15} Focusing on the timing of the prosecutor’s awareness protects against the prosecutor

using the “first proceeding as a trial run of his case” and seeking a bad faith mistrial to

buttress weaknesses in the state’s evidence. Arizona, 434 U.S. at 508 n. 24. In Downum,

the absence of the prosecution’s key witness formed the basis of the mistrial declaration.

372 U.S. at 734-37. Unlike the present case, the prosecution in Downum knew about the key

witness’s absence before the first jury was impaneled and sworn. Id. at 735. In fact, it was

this distinction on which the case turned. The Court noted that “when the district attorney

impaneled the jury without first ascertaining whether or not his witnesses were present, he

took a chance.” Id. at 737 (internal quotation marks and citation omitted). “The situation

presented is simply one where the district attorney entered upon the trial of the case without

sufficient evidence to convict.” Id. (internal quotation marks and citation omitted); see also

State v. Nielsen, 761 A.2d 876, 879 (Me. 2000) (finding no manifest necessity where state

chose to proceed with trial and examine numerous witnesses before making a determination

that it was necessary to seek mistrial).

{16} In the present appeal, the State moved for mistrial prior to the commencement of trial

testimony when Victim failed to appear. Unlike Downum, where the prosecution made no

effort to secure witness attendance, the Victim in the present case was under a subpoena.

Similarly, the State had not “assumed the risk of not finding its key witness,” as in Nielsen,

because the State moved for mistrial as soon as the prosecutor realized Victim was

unavailable. 761 A.2d at 879. In addition, Defendant did not produce any facts to establish

that the State was aware of Victim’s absence prior to jeopardy attaching. In fact, the record

appears to reflect the opposite. The State expected and encouraged Victim to appear and

offered to drive her to the courthouse to insure her appearance. It appears clear from the

evidence that jeopardy had attached, Victim failed to appear due to a concern that she might

testify inconsistently with her sworn grand jury testimony, and such inconsistent testimony

could constitute perjury. If she did appear and commit perjury, such testimony could also

result in a criminal charge of perjury against her. 
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{17} Defendant argues Victim’s fear and subsequent failure to appear were the result of

an improper perjury warning from the State. In many circumstances, however, a testifying

witness should be warned about the possibility of a perjury charge. See United States v.

Davis, 974 F.2d 182, 187 (D.C. Cir. 1992) (“[T]here are circumstances when warnings about

the possibility and consequences of a perjury charge are warranted—even prudent”); see also

State v. Baca, 1997-NMSC-045, ¶ 36, 124 N.M. 55, 946 P.2d 1066, (holding that a

prosecutor’s warning to defense witness that if she testified untruthfully she could be

charged with perjury was not threatening and therefore not reversible error), overruled on

other grounds by State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783. We

cannot conclude that this warning amounted to procurement of witness unavailability such

that the State acted in bad faith in seeking a mistrial. In fact, the State did everything it

could to get Victim to trial, including an offer to drive her to the courthouse and asking the

district court to issue a bench warrant for Victim’s arrest after her failure to appear.

{18} Finally, the State did not take a chance but had reason to believe Victim would

appear at trial and testify. Our review of the evidence confirms the district court’s

determination that Victim acted on her own accord when she decided not to appear at trial.

Her failure to appear at trial was not encouraged or attributed to by any action of the State

and, therefore, the State was not aware at the time jeopardy attached that Victim would be

unavailable. The district court did not abuse its discretion in finding that the State did not

act in bad faith in seeking a mistrial based on Victim’s unavailability.

2. Reasonable Alternatives

{19} Having found that the State did not act in bad faith, we must look at whether the

district court explored alternatives to a mistrial. “Before a mistrial is granted, other

reasonable alternatives must be considered.” Messier, 101 N.M. at 585, 686 P.2d at 275.

While a court must examine other reasonable alternatives to mistrial, explicit findings on

those options are not required. Id.

{20} Defendant argues that the district court did not appropriately explore alternatives to

mistrial. We disagree. To support his argument, Defendant cites State v. Yazzie, 2010-

NMCA-028, 147 N.M. 768, 228 P.3d. 1188. In Yazzie, this Court held there was no manifest

necessity when defense counsel inquired about the defendant’s prior bad acts and plea

bargain during cross-examination of the victim. Id. ¶ 14. The district court declared a

mistrial before the victim answered the questions. Id. Manifest necessity was improper

because the district court failed to explore reasonable alternatives, such as curative

instructions. Id. ¶ 19. 

{21} Defendant’s authority is not persuasive. In Yazzie and the other authorities cited by

Defendant, trial testimony had already commenced and thus, reasonable alternatives were

more readily available. See Taylor v. State, 811 So. 2d 803, 804-05 (Fla. Dist. Ct. App.

2002) (per curiam) (reasoning that the district court failed to explore reasonable alternatives
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to mistrial, such as severance, where trial had commenced and the court granted codefendant’s motion for mistrial despite the defendant’s objection and willingness to continue

with trial); see also Thomason v. State, 620 So. 2d 1234, 1239 (Fla. 1993) (explaining that

there is no manifest necessity when, three days into trial, defense attorney suddenly became

ill and the trial court actively refused to consider reasonable alternatives, such as a two week

continuance or contacting defense attorney’s doctor); Nielsen, 761 A.2d at 879 (finding no

manifest necessity where the state chose to proceed with trial when a key witness was

unavailable, but explaining that there would have been reasonable alternatives to mistrial had

the State moved for continuance or dismissal without prejudice prior to trial).

{22} The present facts are closer to this Court’s decision in Messier. In Messier, the audio

portion of a previously recorded videotape examination of the key child witness for the state

was defective. 101 N.M. at 583, 686 P.2d at 273. Due to an existing illness and a prior

ruling that in-person testimony would cause the child harm, the witness was considered

unavailable. Id. at 584, 686 P.2d at 274. Rather than immediately granting mistrial, the trial

court continued the trial until the following day. Id. at 585, 686 P.2d at 275. At that time,

the trial court concluded that “reexamining whether the witness could be called in person

was the only reasonable alternative.” Id. at 586, 686 P.2d at 276. After holding a second

hearing and again finding the child witness could not be called to testify in person, the trial

court declared a mistrial based on manifest necessity. Under those facts, this Court

determined the district court did not abuse its discretion. Id.

{23} Additionally, unlike Yazzie, where the error was evidentiary and could be addressed

by a curative instruction, such options were not readily apparent or available in the present

case. Recognizing this dilemma, the district court refused to immediately grant a mistrial.

Instead, the district court kept the jury impaneled and considered the feasibility of a

continuance for two weeks so that Victim might be made available to testify. The district

court granted a mistrial only after evidence was presented to show that Victim left the

jurisdiction on her own accord, her location was unknown, and the timing of her return could

not be determined. Accordingly, we hold that the district court adequately considered other

factors short of mistrial and reasonably delayed its ruling until other reasonable alternatives

had been considered and eliminated. We affirm the district court’s finding of manifest

necessity for a mistrial. 

B. DOUBLE JEOPARDY BASED ON PROSECUTORIAL MISCONDUCT

{24} Defendant asserts that double jeopardy bars his retrial due to prosecutorial

misconduct. This Court reviews a claim of double jeopardy de novo, examining the

prosecutor’s conduct in light of the totality of the circumstances and giving deference to the

district court’s factual findings when they are supported by substantial evidence. State v.

Breit, 1996-NMSC-067, ¶ 40, 122 N.M. 655, 930 P.2d 792; State v. Gonzales, 2002-NMCA071, ¶ 10, 132 N.M. 420, 49 P.3d 681.

{25} Retrial may be barred under Article II, Section 15 of the New Mexico Constitution
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when (1) improper official conduct is so unfairly prejudicial to the defendant that it cannot

be cured by means short of a mistrial, (2) the official knows that the conduct is improper and

prejudicial, and (3) the official intends to provoke a mistrial or acts in willful disregard of

the resulting mistrial. Breit, 1996-NMSC-067, ¶ 32. The test to find prosecutorial

misconduct is objective, focusing on the effect of the prosecutor’s conduct on the trial rather

than the prosecutor’s belief regarding his or her conduct. State v. McClaugherty, 2008-

NMSC-044, ¶¶ 26-27, 144 N.M. 483, 188 P.3d 1234. We now apply the three factors set

forth in Breit to the particular facts and circumstances in this case.

1. Unfair Prejudice

{26} First, we address whether the prosecutor’s conduct was so unfairly prejudicial to

Defendant that it could not be cured by means short of a mistrial or motion for new trial. See

Breit, 1996-NMSC-067, ¶ 32. We cannot say that the prosecutor’s statements during the

Interview were so unfairly prejudicial that it caused Victim’s unavailability at trial and could

be cured by means short of a mistrial.

{27} Victim chose to hide and make herself unavailable to testify because she told the

prosecutor during the Interview that her testimony might be inconsistent with her previous

grand jury testimony. The prosecutor explained to Victim that it would be considered

perjury to testify inconsistently with prior sworn testimony and encouraged Victim to tell

the truth during trial. The State was also concerned that Victim’s change in testimony was

due to pressure from Defendant and his family. The State did not encourage Victim to

testify falsely and also explained that an act of perjury would carry potential criminal

consequences. Finally, the State’s special investigator asked Victim to consider and

understand one of the specific personal consequences that might result if she committed

perjury and was actually charged with perjury due to her sworn testimony. Although these

statements clearly scared Victim, they were legally accurate and did not misrepresent the

potential implications of committing perjury while testifying under oath. As such, they

cannot be deemed prosecutorial misconduct or unfairly prejudicial to Defendant.

{28} Similarly, Defendant fails to show how he was prejudiced by the State’s conduct.

Defendant claims Victim’s testimony will exculpate him and argues that the State

“intimidate[d], harrass[ed] and frighten[ed] a potentially exculpatory witness into either

silence or collusion.” First, we are not convinced that Victim’s testimony will be

exculpatory. Here, Victim is not a defense witness. She is under subpoena from the State,

and the State is expecting her to testify truthfully. Although Victim originally failed to

appear for trial, she later obtained an attorney, and through that attorney indicated that she

will now appear in court to testify. Despite Victim’s present availability to testify,

Defendant speculates that she will not testify truthfully, and he will be falsely implicated

because of Victim’s concerns about committing perjury. We will not speculate about

Victim’s testimony at trial, whether it will prejudice Defendant, or any of the legal

consequences that might result if Victim testifies falsely and commits perjury. Therefore,

Defendant is unable to establish prejudice at this time, and we hold that the first prong of the
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Breit test has not been satisfied. Although failing to satisfy the first prong disposes of

Defendants’ double jeopardy arguments, we shall also proceed to address the other two

prongs.

2. Improper and Prejudicial Conduct

{29} The second prong of the Breit test requires us to consider whether the prosecutor

knew or should have known that the conduct was improper and prejudicial. State v. Lucero,

1999-NMCA-102, ¶ 24, 127 N.M. 672, 986 P.2d 468. We presume that a prosecutor is

aware of the rules of professional conduct and the illegality of threatening witnesses. While

Defendant correctly notes that the prosecution cannot “intimidate, harass and frighten” a

witness not to testify, it is proper for the prosecutor and the court to “advise a witness that

testimony which differs from prior sworn testimony may give rise to perjury charges.” Baca,

1997-NMSC-045, ¶ 35. Here, the statements made by the prosecutor and the special

investigator were intended to specifically alert Victim to some of the severe consequences

that may result from committing perjury. It is not illegal or unethical to make a witness

aware of these consequences. See State v. Stanley, 720 A.2d 323, 330 (Md. 1988)

(“Generally, a party may warn its witness of the ramifications of perjury.”).

{30} The prosecutor’s statements during the Interview fail to reach the standard of

egregiousness required to establish prosecutorial misconduct. See Gonzales, 2002-NMCA071, ¶ 14 (holding that dismissal of criminal charges for prosecutorial misconduct should

only be used for “the most severe prosecutorial transgressions”). The prosecutor and the

special investigator consistently told Victim that the purpose of the Interview was to prepare

her for trial and that her duty at trial was to tell the truth. The meeting lasted thirty minutes,

and the tone of the Interview remained cordial at all times. When Victim said that Defendant

never touched her, the prosecutor warned her of the possibility that false testimony might

cause her to face charges for perjury. The special investigator then brought up the additional

possibility that Victim might lose her child if she were to be charged with perjury. The tone

of this portion of the conversation, paired with the prosecution’s concern that Victim’s

family was pressuring her to recant, indicate that the discussion was meant to warn Victim

of the seriousness and potential consequences of lying under oath. 

{31} Additionally, Victim, herself, testified that she felt “kind of scared” because the

prosecutor and the special investigator told her they could take her son away if she failed to

appear. Although statements regarding the consequences that could affect Victim’s child

might be considered scary to a young witness, the prosecutor could not have known or

expected that Victim would flee as a result of the Interview. Instead, it is more reasonable

for the prosecutor to believe that Victim would testify truthfully and be ready to explain any

prior inconsistent statements that she had made before the grand jury. Similarly, although

not independently significant, we note again that Victim was a State witness, not a witness

for the defense. Thus the State was advising Victim to testify truthfully, not attempting to

silence her. Taken in context, the district court could reasonably determine that the

prosecutor’s statements during the Interview do not rise to the level of a threat or that the
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State’s conduct was improper and prejudicial. As a result, the second prong of the Breit test

was not satisfied.

3. Willful Disregard

{32} Finally, Defendant argues that the State “acted in a way that demonstrated willful

disregard of a potential discharge of proceedings.” “Willful disregard” means “a conscious

and purposeful decision . . . to dismiss any concern that . . . conduct may lead to a mistrial.”

Breit, 1996-NMSC-067, ¶ 34.

{33} In support of his argument, Defendant asserts that the State was attempting to obtain

a conviction “at all costs.” Defendant also claims that Victim was never unavailable and the

“prosecution knew exactly where [Victim] was on the morning of trial.” To the extent

Defendant speculates about some grandiose plan by the State for Victim not to show up to

trial, the evidence presented before the district court did not support such a plan. Defendant

fails to cite to any facts in the record or other authority in support of this contention, and we

decline to review Defendant’s undeveloped argument on appeal. See State v. Ortiz,

2009-NMCA-092, ¶ 32, 146 N.M. 873, 215 P.3d 811 (noting that it is the party’s

responsibility to connect legal theories to the pertinent elements and the factual support for

those elements and that this Court may decline to review undeveloped arguments on appeal).

{34} After thorough review of the record, we agree with the district court that the actions

by the State did not constitute prosecutorial misconduct.

C. DISMISSAL OF CHARGES WITH PREJUDICE

{35} Defendant argues that this Court should dismiss the charges against him with

prejudice because the prosecutor’s actions had an immediate and severely prejudicial effect

on his right to present a defense and his due process right to compulsory process. Defendant,

however, does not indicate whether he preserved this argument or whether preservation was

necessary. Additionally, Defendant fails to cite to the record to support his claims. We also

note that Defendant’s argument was premature and speculative. As such, we will not

consider his argument on appeal. See State v. Gonzales, 2011-NMCA-007, ¶ 19, 149 N.M.

226, 247 P.3d 1111 (explaining that this Court has no duty to review arguments that are not

adequately developed), cert. denied, 2010-NMCERT-012, 150 N.M. 492, 263 P.3d 269 (No.

32,684, Dec. 16, 2010); see also State v. Torres, 2005-NMCA-070, ¶ 34, 137 N.M. 607, 113

P.3d 877 (stating that this Court will not address issues unsupported by argument and

authority). 

III. CONCLUSION

{36} We hold that there was manifest necessity for a mistrial and that the State did not

commit prosecutorial misconduct during the Interview conducted with Victim prior to trial.

As a result, we conclude that double jeopardy does not bar retrial of Defendant, and we
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remand this matter to the district court for a new trial.

{37} IT IS SO ORDERED.

____________________________________

TIMOTHY L. GARCIA, Judge

WE CONCUR:

____________________________________

MICHAEL D. BUSTAMANTE, Judge

____________________________________

LINDA M. VANZI, Judge

Topic Index for State v. Gutierrez, No. 29,997

CT CONSTITUTIONAL LAW

CT-DJ Double Jeopardy

CT-DP Due Process

CT-MS Misconduct by Prosecutor

CL CRIMINAL LAW

CL-PJ Perjury

CL-SE Sexual Exploitation of Children

CL-WI Witness Intimidation

CA CRIMINAL PROCEDURE

CA-CW Children as Witnesses

CA-MT Mistrial

CA-WT Witnesses

EV EVIDENCE

EV-AV Availability of Witness

EV-PA Prior Acts or Statements