State v. Mestas , 93 N.M. 765 ( 1980 )

OPINION

WOOD, Chief Judge.

Defendant appeals an order denying his double jeopardy claim. We discuss: (1) whether the order is appealable, and (2) prosecutor misconduct which prohibits a retrial.

Whether the Order is Appealable

Defendant was convicted of criminal sexual penetration in the second degree and kidnapping. These convictions were reversed by memorandum opinion of this Court in State v. Mestas, (Ct.App.) No. 3608, decided August 22, 1978. A second trial in February, 1979 terminated when a mistrial was declared by the trial court. Defendant then moved for dismissal of the charges on the grounds of double jeopardy. This motion was denied in April, 1979 and defendant appealed.

The State has not challenged defendant’s right to appeal the order denying defendant’s motion. We discuss whether the order is appealable because it involves this Court’s jurisdiction to hear the appeal.

The right of appeal is a matter of substantive law. State v. Arnold, 51 N.M. 311, 183 P.2d 845 (1947). Section 39-3-3(A), N.M.S.A. 1978 provides for appeals as of right, by a defendant, from an order denying relief on a petition to review conditions of relief. This provision is not applicable. The statute also provides for appeals as of right, by a defendant, from the entry of final judgment. The order denying defendant’s motion, prior to the third trial, was not a final judgment. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

This Court has authority to grant interlocutory appeals. Section 39-3-3(A)(3), supra. We treat the docketing statement as an application for an interlocutory appeal, which we hereby grant. State v. Garcia, 91 N.M. 131, 571 P.2d 123 (Ct.App.1977). Since the case is before us as an interlocutory appeal, we do not reach the question of whether “final judgment” in § 39-3-3(A)(l), supra, should be construed to include an order denying a double jeopardy claim raised by pretrial motion. Compare Abney v. United States, supra.

Prosecutor Misconduct Which Prohibits a Retrial

In the first trial, defendant sought a mistrial because of improper closing argument of the prosecutor. The convictions were reversed because the prosecutor’s argument was in bad faith and because the cumulative impact of the prosecutor’s references to an absent witness denied defendant a fair trial. “The trial court erred in not granting defendant’s motion for a mistrial.”

Defendant contended, at the motion hearing before the trial court, that he had not sought a mistrial at the second trial. The trial court ruled that the mistrial was granted at defendant’s request, and the tapes support this ruling.

The factual predicate, then, is that defendant sought a mistrial at each of the first two trials.

United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) states:

The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where “bad-faith conduct by judge or prosecutor,” . . . threatens the “[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict” .

(Our emphasis.)

United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), at footnote 12, states:

[Wjhere a defendant’s mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution might well be barred. (Our emphasis.)

The wording we have emphasized in Dinitz and Jorn points out that the actions of the prosecutor must have been in bad faith, and must have been designed to afford the prosecution a more favorable opportunity to convict in the trial at which the mistrial motion was made. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977) applied “these principles” and did not, in our opinion, expand the standard to be followed in determining whether reprosecution was barred.

We followed the language of Dinitz in State v, Dunn, 93 N.M. 239, 599 P.2d 392 (Ct.App.1979) and State v. Hogervorst, 90 N.M. 580, 566 P.2d 828 (Ct.App.1977). However, in State v. Quintana, 93 N.M. 644, 603 P.2d 1101 (Ct.App.1979) our paraphrasing of Dinitz was inexact. The standard to be followed is the one announced in Dinitz.

The memorandum reversing defendant’s convictions at the first trial stated: “We view the closing remarks of the prosecutor, together with some of the questionable questioning at trial, to have been made in bad faith.” Although the prosecutor’s actions were in bad faith, defendant does not claim that these actions were designed to afford the prosecutor a more favorable opportunity to convict. Defendant properly failed to claim that the second trial (which ended in a mistrial) was barred by double jeopardy. In denying the mistrial motion at the first trial, the trial court ruled that the prosecutor’s improper comments came after defendant “ ‘opened the door’ . . .” As to the improper questioning “[sjome objections were sustained — some were overruled and properly so .” Although the prosecutor’s bad faith conduct amounted to error requiring a new trial, there was nothing indicating the conduct was for the purpose of causing a mistrial or a reversal on appeal so as to afford the prosecutor a more favorable opportunity to obtain a conviction at a subsequent trial. Compare the facts in State v. Callaway, 92 N.M. 80, 582 P.2d 1293 (1978).

At the second trial the prosecutor asked an improper question; because of this question a mistrial was declared. Defendant’s double jeopardy claim is based on this question. The trial court ruled that the question was not asked in bad faith, and was not designed to provoke a mistrial; “She had everything to lose from that [question], nothing to gain. She had a very favorable jury.” These rulings were not incorrect as a matter of law. The improper question at the second trial did not bar the scheduled third trial. Compare State v. Quintana, supra; United States v. Buzzard, 540 F.2d 1383 (10th Cir. 1976).

The order of the trial court is affirmed.

IT IS SO ORDERED.

ANDREWS, J., concurs.

SUTIN, J., specially concurring.