New Mexico v. Gutierrez
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A Curry County grand jury indicted Defendant Julian Gutierrez on three counts of criminal sexual contact of a minor based on the testimony of Defendant’s daughter that he touched or pinched her breasts on several occasions when she was fifteen years old. At the time of the alleged incidents, Defendant was estranged from his daughter’s mother, who lived in Lubbock, Texas. After Defendant’s indictment, his daughter moved out of their home to stay next door with her paternal grandparents. On the first scheduled day of trial, Defendant informed his attorney that he had been provided with a statement written by his daughter that related to a recent visit by prosecution representatives to her school. When defense counsel asked for a hearing on the new revelations, the prosecutor admitted not having disclosed to the defense anything about the pretrial encounter at which the daughter attempted to recant her grand jury testimony. The next morning, when Defendant’s daughter did not appear to testify and the State could not locate her, the State asked the district court to make a finding of manifest necessity and declare a mistrial. Two weeks later, the daughter still not having been located, the district court declared a mistrial over the objection of the defense and permanently discharged the jury. The court rejected Defendant’s argument that determining manifest necessity required considering the “intertwined” matter of prosecutorial misconduct in the encounter with the daughter, saying that it would address the propriety of that encounter separately “at a later date.” Another two weeks passed, and the daughter had been arrested on the bench warrant. The court held hearings on Defendant’s motions to dismiss for prosecutorial misconduct and to preclude retrial for lack of manifest necessity justifying the mistrial. The ultimate issue this case presented to for the Supreme Court's review centered on the boundaries between proper and improper prosecutorial conduct in dealing with recalcitrant witnesses and of the circumstances in which a mistrial and retrial may take place without violating constitutional double jeopardy protections when a witness does not appear for trial. Following federal double jeopardy principles in United States Supreme Court precedent, the New Mexico Court concluded that a prosecution witness’s failure to appear for Defendant’s trial did not constitute manifest necessity for granting a mistrial after a jury had been selected and sworn to hear his case. Because empaneling a new jury and retrying Defendant would violate his double jeopardy protections under the United States Constitution, the Court remanded this case to the district court with instructions to dismiss.
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