This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,220 9 JACOB MILLIGAN, 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 12 William C. Birdsall, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Hugh W. Dangler, Chief Public Defender 17 Kathleen T. Baldridge, Assistant Appellate Defender 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 KENNEDY, Judge. 22 Jacob Milligan (Defendant) appeals from the district court’s order denying his 23 motion for entry of acquittal. [RP 156] Defendant raises two double jeopardy issues, 24 contending that (1) the mistrial in Defendant’s first trial was a result of the wilful 252 disregard of the State for the district court’s order and Defe ndant’s rights, and, 1 therefore, further prosecution violates double jeopardy; and (2) Defendant was 2 impliedly acquitted in the second trial of the charges of attempted first and second 3 degree murder and further prosecution of those charges would violate double 4 jeopardy. [DS 4] This Court issued two calendar notices that proposed summary 5 affirmance. [Ct. App. File, CN1, CN 2] Defendant has filed a memorandum in 6 opposition to the second calendar notice. [2nd MIO] After due consideration, we 7 affirm. 8 DISCUSSION 9 Prosecutorial Misconduct 10 In the second memorandum, Defendant continues to disagree with this Court’s 11 proposed summary affirmance on this issue. [2nd MIO 1-4] Defendant provides no 12 additional facts or legal authorities, however, that persuade us that the analysis set 13 forth in the second calendar notice was incorrect or inappropriate. State v. Ibarra , 116 14 N.M. 486, 489, 864 P.2d 302, 305 (Ct. App. 1993) (“A party opposing summary 15 disposition is required to come forward and sp ecifically point out errors in fact and/or 16 law.”). Accordingly, we affirm the district court on this issue. 17 Article II, Section 15 of the New Mexico Constitution bars a defendant’s retrial 18 under double jeopardy principles when (1) improper official conduct is so unfairly 193 prejudicial to the defendant that it cannot becured by means short of a mistrial or a 1 motion for a new trial; (2) the official knows that the conduct is improper and 2 prejudicial; and (3) the official either intends to provoke a mistrial or acts in wilful 3 disregard of the resulting mistri al, retrial, or reversal. State v. Breit , 1996-NMSC-067, 4 ¶ 32, 122 N.M. 655, 930 P.2d 792. In State v. McClaugherty , our Supreme Court set 5 forth the appellate standard of review of a prosecutorial misconduct claim as a mixed 6 question of law and fact. 2008-NMSC- 044, ¶ 39, 144 N.M. 483, 188 P.3d 1234. “The 7 appellate court will defer to th e district court when it has made findings of fact that are 8 supported by substantial evidence and reviews de novo the district court’s application 9 of the law to the facts.” Id. In examining whether “the prosecutor’s conduct amounts 10 to “wilful disregard of a resulting mistrial, retrial, or reversal, th e appellate court will 11 carefully examine the prosecuto r’s conduct in light of the totality of the circumstances 12 of the trial.” Id. ¶ 58 (internal quotation marks and citation omitted). 13 “Wilful disregard” means “a consci ous and purposeful decision by the 14 prosecutor to dismiss any concern that his or her conduct may lead to a mistrial or 15 reversal, while emphasizing that the prosecuto r is actually aware, or is presumed to 16 be aware, of the potential consequences of his or her actions.” Id. (internal quotation 17 marks and citation omitted). “The presumption that the prosecutor is aware of such 18 consequences is established by the pros ecutor’s egregious conduct, not necessarily 194 from an inference of a conscious and purpos eful decision to bring about a mistrial.” 1 Id. In McClaugherty , the Supreme Court demonstratedthe application of each prong 2 of the Breit test, concluding that double jeopardy principles barred retrial of the 3 defendant in that case. 4 A. The First Breit Prong: Whether the Improper Official Conduct was So 5 Unfairly Prejudicial to Defendant That it Cannot be Cured by Any 6 Means Short of a Mistrial or a Motion for a New Trial 7 In McClaugherty , the prosecutor improperly introdu ced material facts that were 8 not in evidence and that did not exist through his cross-examination of the defendant. 9 Id. ¶¶ 41-42. These facts were statements from witnesses that the prosecutor did not 10 produce at trial, stating the defendant had confessed to shooting and then bragged 11 about it. Id. ¶ 41. As such, the prosecutor’s reference to these statements was, at the 12 very least, a violation of the hear say rule and not harmless error. Id. ¶ 42. The 13 Supreme Court held that the first prong of the Breit test was met in McClaugherty 14 because the prosecutor’s “conduct was so unfai rly prejudicial to [the d]efendant that 15 it could not be cured short of a new trial.” Id. 16 In this case, Defendant’s first memorandum indicates that the prosecutor 17 acknowledged that he failed to inform Detective Sgt. Perez not to mention that 18 defense witnesses were southside gang members in accordance with the district 19 court’s limiting instructions. [MIO 2] Th e prosecutor explained that he had intended 205 the detective would testify about the photographs of the victim’s wounds, but then 1 decided at the last minute to broach other topics. [Id.] Because the officer’s 2 statements allowed the jury to know thatthe defense witnesses were gang members, 3 Defendant was unfairly prejudiced, and, it appears that the prejudice could not be 4 cured by any means short of a mistrial. We hold that the first Breit prong is met in 5 this case. 6 B. The Second Breit Prong: Whether the OfficialKnew That the Conduct was 7 Improper or Prejudicial 8 In McClaugherty , the Supreme Court held that there was no testimony or 9 evidence to support the district court’s f actual finding that the prosecutor committed 10 the conduct at issue because he was an in experienced lawyer, a naive practitioner, or 11 a poor lawyer. Id. ¶ 47. Moreover, as in Breit , in McClaugherty , “[t]here [was] no 12 suggestion in the record that the prosecuto r acted out of error, or negligence, or 13 mistake.” Id. ¶ 48. As such, “[t]he law clearly presume[d] that [the prosecutor] knew 14 that his cross-examination of [the d]efendant using either inadmissible hearsay or facts 15 not in evidence, where [the prosecutor] had no intention of trying to gain the proper 16 admission of that material, was improper.” Id. ¶ 57. The second prong of the Breit 17 test was met in McClaugherty

. Id. 18 In this case, the prosecutor was questioning the officer on direct examination 19 about the victim’s wounds. [RP 47W] The prosecutor did not make allusions to the 206 defense witnesses’ gang affiliations nor e licit the officer’s improper response. The 1 district court judge expressly determinedthat the prosecutor’s actions were “a 2 mistake” or “inadvertent” and denied Defendant’s double jeopardy motion on that 3 basis. [RP 51, 62B, 56] As such, unlike in McClaugherty , in this case there isa 4 “suggestion in the record that the prosecu tor acted out of error, or negligence, or 5 mistake.” McClaugherty , 2008-NMSC-044, ¶ 48. We hold that the second Breit 6 prong is not met in this case. 7 C. The Third Breit Prong: Whether the Offi cial Intended to Provoke a 8 Mistrial or Acted in Wilful Dis regard of the Resulting Mistrial, 9 Retrial, or Reversal 10 In McClaugherty , while the prosecutor engaged in a single incident of 11 misconduct, the conduct constituted the “i ntroduction of nonexistent evidence at 12 worst, or at best, inadmissible hearsay through his cross-examination questions.” Id. 13 ¶ 60. As in Breit , the prosecutor in McClaughertyessentially acted to avoid “an 14 acquittal at any cost.” Id. ¶ 59 (internal quotation marks and citation omitted). In 15 McClaugherty , moreover, the defendant pointed out that “the misconduct occurred 16 shortly before the end of the trial, wh en the weakness of the [s]tate’s case was 17 apparent.” Id. ¶ 60. The third Breit prong was met in McClaugherty

. 18 In this case, however, as mentioned above, the district court judge expressly 19 determined that the prosecutor’s actions were “a mistake” or “inadvertent.” [RP 51, 207 62B, 56] Under the circumstances, we cannot say that the prosecutor intended to 1 provoke a mistrial or acted inwilful disregard of the resulting mistrial, retrial or 2 reversal in this case. We hol d, therefore, that the third Breit prong was not met in this 3

case. 4 We affirm the district court’s decisi on to declare a mistrial but to allow 5 Defendant to be retried. 6 Implied Acquittal 7 In the second memorandum, Defendant continues to argue that retrial on the 8 greater charges of attempted first degree murder and the lesser-included offense of 9 attempted second degree murder would viol ate his double jeopardy rights. [2nd MIO 10 4-5] Defendant relies on the arguments made in the first memorandum on this issue, 11 however, and he raises no new facts or legal authorities that persuade us that the 12 analysis in the second calendar notice was inappropriate or incorrect. Ibarra , 116 13 N.M. at 489, 864 P.2d at 305. Accordingly, we affirm. 14 Double jeopardy bars successive prosecuti ons of all degrees of the offense 15 following an acquittal of any degree. State v. Fielder , 2005-NMCA-108, ¶ 11, 138 16 N.M. 244, 118 P.3d 752. In order to determine the highest degree of the offense upon 17 which a defendant may be retried without violating double je opardy, the district court 18 judge polls the jury as provided in Rule5-611(D) NMRA. Rule 5-611(D) provides 198 that, 1 [i]f the jury has been instructed on one or more lesser included offenses, 2 and the jury cannot unanimously agree upon any of the offenses 3 submitted, the court shall poll the jury by inquiring as to each degree of 4 the offense upon which the jury has b een instructed beginning with the 5 highest degree and, in descending order, inquiring as to each lesser 6 degree until the court has determined atwhat level of the offense the jury 7 has disagreed. 8 Whether the district court was required to po ll the jury in regard to its deliberations 9 on each of the lesser included offenses, is an issue of law that we review de novo. 10 State v. Garcia , 2005-NMCA-042, ¶ 10, 137 N.M. 315, 110 P.3d 531. 11 In this case, the jury wa s instructed on attempted first degree murder, attempted 12 second degree murder, and voluntary mans laughter. [RP 122, 124, 127] Defendant 13 argues that the record is silent as to which, if any, specific charge the jury reached an 14 impasse. Defendant contends this implies hewas acquitted of all but the lowest of the 15 submitted charges. [RP 148] We disagree. 16 The record proper indicates that the distri ct court judge did inquire of the jurors, 17 as follows: “Is there no reasonable probab ility that you will be able to agree upon a 18 unanimous verdict in some or all of the counts?” [RP 117] The jury foreman 19 responded on behalf of the jurors, “No—on all counts.” [Id.] The jury foreman also 20 responded, “We feel we’ve reached an unresolvable deadlock.” [RP 118] The 21 memorandum indicates that the district court judge also asked the jury for a show of 229 hands and then declared a mistrial. [MIO 3] 1 As we stated in the first calendar notice, the district court is not required to 2 continue its inquiry into the jury’s deliber ations regarding lesser offenses when the 3 court has determined, through its inquiry, thatthe jury was unable to reach agreement 4 as to a greater offense. Fielder , 2005-NMCA-108, ¶ 14. In this case, the district 5 court’s inquiry, including of the foreman and the jurors by show of hands, indicated 6 that the jury was unable to reach agreement as to any of the offenses, including both 7 of the offenses greater than voluntary manslaughter. 8 We hold, therefore, that there was manife st necessity to decl are a mistrial as to 9 all degrees of the offense charged. Under the circumstances, therefore, Defendant can 10 be retried on all degrees of the charges without violating his double jeopardy rights. 11 IT IS SO ORDERED. 12

___________________________________ 13 RODERICK T. KENNEDY, Judge 14 WE CONCUR : 15

___________________________ 16 CELIA FOY CASTILLO, Judge 17

___________________________ 18 ROBERT E. ROBLES , Judge 19