State v. Hildreth

The slip opinion is the first version of an opinion released by the Chief Clerk of the
Supreme Court. Once an opinion is selected for publication by the Court, it is
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deviations from the formal authenticated opinion.

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: ___________________
Filing Date: February 9, 2022

NO. S-1-SC-37558

STATE OF NEW MEXICO,
Plaintiff-Respondent,

v.

HENRY HILDRETH JR.,
Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Robert A. Aragon, District Judge

Bennett J. Baur, Chief Public Defender
Caitlin C. M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

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

for Respondent
OPINION

VIGIL, Chief Justice.
{1} This case presents a question of first impression: whether judicial conduct at

trial may result in a bar to retrial under the double jeopardy clause of the New

Mexico Constitution, and if so, whether the district court judge’s conduct in this case

bars retrial. See N.M. Const. art. II, § 15 (prohibiting any person from being “twice

put in jeopardy for the same offense”). We hold that judicial conduct may result in

a bar to retrial under the New Mexico Constitution and that the judicial conduct in

this case bars Defendant’s retrial.

I. BACKGROUND

A. The District Court Proceedings

{2} A criminal complaint was filed in the district court on September 9, 2016,

charging Defendant Henry Hildreth, Jr., with felony aggravated battery against a

household member with great bodily harm, misdemeanor aggravated battery against

a household member without great bodily harm, and unlawful taking of a motor

vehicle. NMSA 1978, § 30-3-16(B), (C) (2008, amended 2018); NMSA 1978, § 30-

16D-1 (2009). At the arraignment the following month, Defendant was found to be

indigent, and Steven Seeger was appointed to represent him. Trial was set for March

14, 2017, on a trailing docket.

{3} The State belatedly filed its witness list on March 1, 2017, and eight days later,

on March 9, 2017, filed an amended witness list to correct an address. That same

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day, nine days after the discovery deadline and five days before trial, the State

provided Defendant with a CD containing audio recordings of statements made by

the State’s witnesses and Defendant in interviews with the police.

{4} The day after receiving the CD, on Friday, March 10, 2017, Seeger filed a

motion to continue the jury trial. Seeger argued that he needed more time to review

the CD in order to adequately prepare for trial and that, without more time to prepare,

Defendant would be denied his right to effective assistance of counsel. That same

day, the parties appeared before the judge for a pretrial conference.

{5} At the pretrial conference, the judge denied the motion for continuance

without hearing any argument. From that point forward, Seeger remained

determined to get a continuance, and the judge remained committed to proceed with

trial as scheduled. Their intransigence forms the root of the issue in this case.

{6} In response to the judge’s denial of his motion to continue, Seeger told the

judge that he would not be ready for trial. He stated that he would “be present but

not participate.” The judge responded that “[i]f that is true, then [Defendant] would

have . . . excellent grounds for appeal on incompetency of counsel.” The judge told

Seeger that if he objected to the State’s untimely discovery, he could file a motion,

and it would be heard before trial. Seeger did just that.

{7} Seeger filed a motion for sanctions on March 13, 2017, the day before trial,

asking the judge to prevent any of the State’s identified witnesses from testifying. In

its written response, the State acknowledged that its discovery was late. With respect

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to the CD, the State asserted that it was not within the State’s “control” until March

9, 2017, and it was made available to Seeger that same day. The State asserted that

sanctions were not appropriate, but if the judge was inclined to grant any sanctions,

the less punitive sanction of a continuance instead of preventing any of the State’s

witness from testifying was appropriate.

{8} At the motion hearing, held on March 14, 2017, the first day of the trial,

Seeger argued that due to the untimely discovery disclosures, the State should be

prohibited from calling any witnesses. With regard to the CD, Seeger asserted that

it might contain a “prior statement of [a] witness, and [that he had] not had an

opportunity to listen to it to see whether it ha[d] potential material for cross-

examination” or exculpatory information. In response to a question from the judge

regarding whether the State intended to actually use the CD during trial, the

prosecutor said, “it’s nothing that the State would have presented today.” The State

then again requested that if sanctions were imposed, the sanction be a continuance

rather than exclusion of its witnesses. The judge denied the motion and imposed no

sanctions. The trial then started.

{9} During the trial, Seeger refused to participate in voir dire, challenge any

jurors, examine any witnesses, or participate in the selection of jury instructions.

Seeger also declined to proffer an opening statement or a closing statement.

However, he made three motions for mistrial—all based on assertions of ineffective

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assistance of counsel resulting from the State’s late disclosures, and, consequently,

his asserted inability to prepare for trial.

{10} Seeger first moved for a mistrial shortly after the jury was sworn in. The judge

immediately denied the motion and the trial proceeded. The State then called two of

its three witnesses before the lunch hour. These were the victim and an eyewitness

to the alleged aggravated battery. Seeger did not cross-examine either one.

{11} After the lunch break, Seeger again moved for a continuance or mistrial based

on the late discovery. Seeger told the judge that during lunch he reviewed the writing

on the CD and discovered that it contained statements from the two witnesses who

had testified that morning, another witness, and Defendant. Seeger argued that as a

result of the State’s late disclosures, he did not have a chance to listen to the CD or

get the statements on the CD “transcribed to use [for] potential cross-examination.”

Seeger noted that he did not know what exculpatory information or prior inconsistent

statements were on the CD and renewed his prior motion for a continuance or

mistrial.

{12} The State’s response was that the CD was handed over to Seeger on March 9,

2017, the day it was received at the district attorney’s office. In response to

questioning from the judge, however, the prosecutor confirmed that the police

officer who investigated the case was in possession of the CD before he turned it in

to the district attorney’s office. Moreover, in a subsequent filing the prosecutor

disclosed that the police officer’s report describing the interviews and confirming

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that they were recorded was received by the district attorney’s office seven days after

the offense, on June 30, 2016.

{13} The judge then turned back to Seeger and asked why he had not reviewed the

CD in the intervening days between his receipt of it and the trial. Seeger answered

that on the following day, he was either in court or in the process of reviewing the

public defender cases of a contract attorney who had suddenly passed away so those

cases could be reassigned to new attorneys. On the weekend, he continued reviewing

the files and attended the viewing of his deceased colleague, and he had “no time”

to review the CD the following Monday, the day before the trial. The judge denied

the motions, concluding that there had been “no showing of prejudice to the court.”

Based on the prosecutor’s concession that the CD had been in a State agent’s

possession, the judge also admonished the prosecutor that “[t]here is no distinction

made between the agents of the State. The State is the State.”

{14} Despite Seeger’s efforts, the judge allowed trial to proceed. Before closing

arguments, Seeger again moved for mistrial. And again, the judge denied his motion.

The jury found Defendant guilty of felony aggravated battery against a household

member with great bodily harm, and Defendant appealed to the Court of Appeals.

B. The Court of Appeals’ Opinion

{15} In the Court of Appeals, “Defendant argue[d], and the State concede[d], that

Defendant was denied his constitutional right to assistance of counsel.” State v.

Hildreth, 2019-NMCA-047, ¶ 1, 448 P.3d 585. Defendant also argued that “the

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district court judge’s conduct during trial should bar [Defendant’s] retrial on double

jeopardy grounds.” Id.

{16} The Court of Appeals concluded that Defendant was denied his constitutional

right to effective assistance of counsel and reversed Defendant’s conviction. Id. The

Court of Appeals reasoned that “Seeger’s conduct rose to the level of a constructive

denial of counsel sufficient to create a presumption of prejudice.” Id. ¶ 14.

{17} Turning to Defendant’s double jeopardy argument, the Court of Appeals

acknowledged that “Seeger’s adamant refusal to provide his client with a defense in

a felony trial and the district judge’s decision to proceed with such a trial in

circumstances where some form of guilty verdict was not only a near certainty, but

had no realistic chance of being upheld on appeal,” created an “unusual and

unseemly situation.” Id. ¶ 16. Nevertheless, the Court of Appeals rejected

Defendant’s argument that retrial was barred under the three-part test set forth in

State v. Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792. Hildreth, 2019-

NMCA-047, ¶¶ 17, 20. The Court of Appeals determined that Breit had “no bearing”

on the case and even if it did, “the district court judge . . . acted appropriately and

appeared impartial throughout the proceedings.” Id. ¶ 20. In analyzing whether the

Breit test would be satisfied if it did apply, the Court of Appeals focused on the

judge’s demeanor, his tone of voice, and his efforts “to avoid interrupting Seeger.”

Id. Based on this analysis, the Court of Appeals held that the judge’s conduct did not

7
bar retrial, reversed Defendant’s conviction based on ineffective assistance of

counsel, and remanded the case for retrial. Id. ¶¶ 15, 20, 21.

{18} Defendant petitioned this Court for a writ of certiorari to review the Court of

Appeals’ conclusion that Breit does not apply, and even if it does, the judge’s

conduct did not meet Breit’s criteria to bar retrial.

II. DISCUSSION

A. Standard of Review

{19} At issue in this case is whether judicial conduct may result in a bar to retrial

under the New Mexico Constitution. N.M. Const. art. II, § 15. “A double jeopardy

claim is a question of law that we review de novo.” State v. Bernal, 2006-NMSC-

050, ¶ 6, 140 N.M. 644, 146 P.3d 289.

B. Breit Applies to Judicial Conduct

{20} The State contends that because the facts of Breit concerned prosecutorial

misconduct, the Breit test was meant to be limited to prosecutors and does not apply

to judicial conduct. We disagree. The language of the Breit test itself and its history

support its application to judges.

{21} Breit directs that retrial is barred when (1) the “improper official conduct is

so unfairly prejudicial to the defendant that it cannot be cured by means short of a

mistrial or a motion for a new trial,” (2) “the official knows that the conduct is

improper and prejudicial,” and (3) “the official either intends to provoke a mistrial

or acts in willful disregard of the resulting mistrial, retrial, or reversal.” 1996-

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NMSC-067, ¶ 32. This language is not on its face limited to prosecutorial conduct.

In fact, the reference to the “official” and “official misconduct” is certainly broad

enough to include judicial conduct. This was no accident.

{22} Both New Mexico and federal precedent influenced the language of the Breit

test. In State v. Day, although we held retrial was not barred under those facts, we

noted that double jeopardy barred retrial when “the prosecutor engaged in any

misconduct for the purpose of precipitating a motion for a mistrial, gaining a better

chance for conviction upon retrial, or subjecting the defendant to the harassment and

inconvenience of successive trials.” 1980-NMSC-032, ¶ 15, 94 N.M. 753, 617 P.2d

142, cert. denied, 449 U.S. 860 (1980). “This standard was an amalgam of various

pronouncements by the United States Supreme Court.” Breit, 1996-NMSC-067, ¶

26. For example, Day referred with approval to the standard in United States v.

Dinitz:

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 harassment of an accused by successive
prosecutions or declaration of a mistrial so as to afford the prosecution
a more favorable opportunity to convict the defendant.

424 U.S. 600, 611 (1976) (alteration, internal quotation marks, and citation omitted)

(emphasis added); Day, 1980-NMSC-032, ¶ 11. In fact, “[a]ll of the elements of the

rule adopted by Day were included in [the] double-jeopardy standard set forth

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earlier” in Dinitz. Breit, 1996-NMSC-067, ¶ 26. Day also endorsed United States v.

Jorn, which provided, “where a defendant’s mistrial motion is necessitated by

judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution

might well be barred.” 400 U.S. 470, 485 n.12 (1971) (emphasis added); Day, 1980-

NMSC-032, ¶ 13.

{23} Following Day, the United States Supreme Court issued its opinion in Oregon

v. Kennedy, 456 U.S. 667, 679 (1982), which narrowed the federal double jeopardy

rule. See Breit, 1996-NMSC-067, ¶ 26 (“[T]he federal cases upon which we based

our double-jeopardy rule in Day were narrowly restricted by Kennedy to a rule based

upon prosecutorial intent.”). But in Breit, we rejected this narrow approach,

concluding that “when this Court derives an interpretation of New Mexico law from

a federal opinion, our decision remains the law of New Mexico even if federal

doctrine should later change.” 1996-NMSC-067, ¶¶ 26, 27. Instead, we adopted a

test that was “implicit in Day.” Id. ¶ 32. We utilized a “‘willful disregard’” standard

that “encompass[ed] and augment[ed] the circumstances implicated by the rule in

Day.” Id. ¶ 36. One such circumstance was judicial impropriety. See id. ¶ 26.

Because of this, we used the language “improper official conduct,” id. ¶ 32

(emphasis added), rather than “prosecutorial misconduct,” as used in Day to

accurately capture the scope of the double jeopardy bar. Day, 1980-NMSC-032, ¶¶

2, 5.

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{24} Thus, based on the language of Breit itself and the history behind its adoption,

we conclude that Breit applies to judicial conduct.

C. The Judge’s Conduct Satisfies the Breit Test

{25} Having determined that Breit applies to judges, we turn to whether the judge’s

conduct in this case satisfies the three prongs of the Breit test. We review each prong

in turn.

1. The first Breit prong

{26} Under this prong, we are required to determine if the judge’s conduct was “so

unfairly prejudicial to [Defendant] that it [could not] be cured by means short of a

mistrial or a motion for a new trial.” Breit, 1996-NMSC-067, ¶ 32.

{27} In its analysis, the Court of Appeals focused on the tone and demeanor of the

judge before the jury to conclude that the judge’s conduct was not improper.

Hildreth, 2019-NMCA-047, ¶ 20. The Court of Appeals “listened to the entire audio

recording of the trial,” focusing on the “judge’s tone of voice” which “sounded”

appropriate and proper. Id. The Court of Appeals noted that “[t]he judge did not raise

his voice, . . . kept his commentary on Seeger’s actions to a minimum in front of the

jury[, and] . . . repeatedly gave Seeger the opportunity to change course and actively

participate in the trial proceedings.” Id. The Court of Appeals determined that

because the judge did not sound dismissive or biased, the judge’s conduct was not

improper. Id. This is where the Court of Appeals erred in its analysis.

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{28} While the tone and content of remarks may be considered when determining

whether an official’s conduct was improper, see Breit, 1996-NMSC-067, ¶¶ 41-44,

these considerations are not dispositive. Rather, we must “carefully examine the

[official’s] conduct in light of the totality of the circumstances of the trial,” id. ¶ 40,

and assess “the effect” the official’s conduct had on the defendant. State v.

McClaugherty, 2008-NMSC-044, ¶ 26, 144 N.M. 483, 188 P.3d 1234.

{29} Looking to the totality of the circumstances of the trial, we repeat that this was

a battle between Seeger and the judge over whether a continuance was warranted or

trial should proceed as scheduled. The denial of Seeger’s repeated requests for a

continuance resulted in repeated motions for a mistrial. These procedural maneuvers

between Seeger and the judge deprived Defendant of his constitutional right to the

effective assistance of counsel, prompting us to consider the circumstances under

which the denial of a continuance is an abuse of discretion because it causes undue

prejudice to a defendant.

{30} In State v. Salazar, we concluded that “our case law requires the trial court to

consider the Torres factors initially in evaluating a motion for a continuance.” State

v. Salazar, 2007-NMSC-004, ¶ 27, 141 N.M. 148, 152 P.3d 135 (citing State v.

Torres, 1999-NMSC-010, 127 N.M. 20, 976 P.2d 20). As reiterated by the Salazar

Court, the Torres factors include:

the length of the requested delay, the likelihood that a delay would
accomplish the movant’s objectives, the existence of previous

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continuances in the same matter, the degree of inconvenience to the
parties and to the court, legitimacy in motives in requesting the
continuance, fault of the movant in causing a need for delay, and the
prejudice to the movant in denying that motion.

Salazar, 2007-NMSC-004, ¶ 14 (citing Torres, 1999-NMSC-010, ¶ 10). “In addition

to meeting the Torres factors, [the d]efendant must show that the denial of the

continuance prejudiced him.” Salazar, 2007-NMSC-004, ¶ 16.

{31} In Salazar, we noted the prejudice to the defendant by the late discovery of a

videotape and the effect it had on defense counsel’s cross-examination of a witness.

Id. ¶¶ 7, 23. We determined “that the trial court abused its discretion in denying [the

d]efendant’s motion” for a continuance because “[t]here had been no previous

continuances, . . . the State did not oppose [the] continuance,” and “[the d]efendant

was not at fault for causing the delay.” Id. ¶¶ 1, 21. We concluded by stating that “if

the motion for a continuance depends on a claim that, absent a continuance, the

defendant will have been or will be denied effective assistance of counsel, Brazeal

offers guidance on how that claim should be analyzed,” but “that standard should

play a subsequent, even subsidiary role to the Torres factors and analysis.” Id. ¶¶ 27-

28 (citing State v. Brazeal, 1990-NMCA-010, ¶ 15, 109 N.M. 752, 790 P.2d 1033).

{32} In Brazeal, our Court of Appeals set forth a two-prong analysis to determine

whether the denial of the continuance amounts to ineffective assistance of counsel.

1990-NMCA-010, ¶ 15. The first consideration is whether “a per se violation of [the]

defendant’s constitutional rights” has occurred—“in other words, whether we can

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presume . . . that [the] defendant suffered from ineffective assistance of counsel

because of the denial of a continuance.” Id. The second consideration is the

defendant’s specific claims of ineffective assistance of counsel. Id. The

circumstances in which prejudice to the defendant can be presumed include: “(1)

denial of counsel altogether; (2) defense counsel’s failure ‘to subject the

prosecution’s case to meaningful adversarial testing’; and (3) when the accused is

‘denied the right of effective cross-examination.’” State v. Grogan, 2007-NMSC-

039, ¶ 12, 142 N.M. 107, 163 P.3d 494 (quoting United States v. Cronic, 466 U.S.

648, 659 (1984)).

{33} With this background in mind, we begin with the judge’s denial of Seeger’s

first motion for a continuance. Although there had been no previous continuances,

we cannot say that the judge’s conduct was improper in denying this motion. To be

sure, the State provided late discovery of the CD, but in looking to the Torres factors,

as mandated by Salazar, the degree of inconvenience to the parties, legitimacy of

motives, and prejudice to Defendant were unknown at this time. Salazar, 2007-

NMSC-004, ¶¶ 27-28. Seeger’s comment that he would “not participate” at trial does

not change this determination. The judge could not know whether Seeger would

remain true to his word, as evinced by the judge’s response, “[i]f that is true, then

[Defendant] would have . . . excellent grounds for appeal.” (Emphasis added.)

{34} At the motion hearing the morning of the trial, Seeger argued for sanctions

because of the late discovery. Again, he argued that the CD might contain prior

14
statements of a witness and that he had not had an opportunity to review it for

exculpatory material. Apparently acting on the State’s assurance that the CD was

“nothing that the State would have presented today,” the judge denied the motion

for sanctions. Again, there was no abuse of discretion and the trial commenced.

{35} At trial, the judge watched as Seeger refused to participate in voir dire, juror

challenges, opening statement, and witness examination. After the jury was sworn

and Seeger made his first motion for mistrial, the judge asked Seeger to confirm

“that [Seeger was] not going to defend this man,” to which Seeger replied,

“[c]orrect.” The trial continued and the State called two of its three witnesses. Seeger

did not cross-examine either witness.

{36} By this time Seeger’s voluntary posture of determined inaction precluded any

“meaningful adversarial testing” and denied Defendant “the right of effective cross-

examination.” Grogan, 2007-NMSC-039, ¶ 12 (internal quotation marks and

citation omitted). Thus, “Seeger’s conduct rose to the level of a constructive denial

of counsel sufficient to create a presumption of prejudice.” Hildreth, 2019-NMCA-

047, ¶ 14. By now, it was clear that Defendant was being denied his right to effective

assistance of counsel, but that is not the question before us. The question is whether

the judge’s conduct was “so prejudicial as to cause a mistrial or new trial.” Breit,

1996-NMSC-067, ¶ 33.

{37} After lunch, Seeger renewed the motions for mistrial or continuance. At this

moment in the trial, the judge’s conduct became “so unfairly prejudicial to

15
[Defendant] that it [could not] be cured by means short of a mistrial or a motion for

a new trial.” Breit, 1996-NMSC-067, ¶ 32. This time, Seeger told the judge what

was on the CD: statements from Defendant and the State’s two witnesses who

testified that morning. At this time, the judge knew that there was no meaningful

adversarial testing of the State’s case, that Defendant was denied his right to

effective cross-examination, that the State misled the court by declaring that it would

not use the CD but then calling two witnesses whose prior statements were on the

CD, and that Seeger had no role in the State’s failure to provide the CD less than a

week prior to trial. The judge’s denial of a continuance under these circumstances

was unfairly prejudicial to Defendant.

{38} These facts are similar to those in Salazar—there had been no previous

continuances, the defense was not at fault for causing the delay, and the late

discovery provided by the State prejudiced defense counsel’s cross-examination of

witnesses—but here we also have a headstrong attorney refusing to participate in a

criminal trial. Salazar, 2007-NMSC-004, ¶¶ 7, 21-23. Yet, despite the Torres factors

weighing in favor of granting a continuance and allowing Defendant to develop a

defense, the judge—equally obstinate—remained resolute in maintaining the trial

docket. It was at this point in the trial that the judge had an affirmative obligation to

do something: grant a continuance, declare a mistrial, or impose sanctions. However,

the judge failed to undertake any measures to protect the constitutional rights of

Defendant and the integrity of the court. See Grogan, 2007-NMSC-039, ¶ 10 (“[I]n

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cases of obvious ineffective assistance of counsel, the trial judge has the duty to

maintain the integrity of the court, and thus inquire into the representation.”); see

also Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (“The constitutional right of an

accused to be represented by counsel invokes, of itself, the protection of a trial

court.”).

{39} Returning to Breit, the judge’s decision to allow the trial to proceed in light

of the facts before him was conduct so unfairly prejudicial to Defendant that it could

not be cured short of a mistrial or new trial. We conclude that the first prong of the

Breit analysis is satisfied.

{40} Before turning to the second Breit prong, we take this opportunity to note that

our determination that the judge’s conduct was improper and unfairly prejudicial to

Defendant should in no way be construed as a validation of Seeger’s actions. See

Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[A] counsel’s function, as

elaborated in prevailing professional norms, is to make the adversarial testing

process work in the particular case.”), superseded on other grounds by statute,

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214; see also Martin v. Rose, 744 F.2d 1245, 1250-52 (6th Cir. 1984)

(concluding that defense counsel’s decision to “abandon all attempts to defend his

client at trial” was a “bizarre and irresponsible stratagem” that amounted to

constitutional error). “[A]ttorneys in New Mexico are not empowered with

decisional autonomy regarding when trials commence and when they do not

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commence. District courts are.” Hildreth, 2019-NMCA-047, ¶ 16. Seeger had an

obligation to preserve the record with a focus on the specific facts in support of a

continuance and to demonstrate how the denial of the continuance was prejudicial

to Defendant, while not abdicating his role as Defendant’s attorney. See Salazar,

2007-NMSC-004, ¶¶ 15-16 (factors to be considered when “evaluating a trial court

decision granting or denying a motion for continuance”).

{41} That said, we echo the guidance offered to our district courts by the Court of

Appeals as to how to respond when an attorney is threatening to withdraw from

participation in a criminal trial. “[T]he district court can order new counsel to

represent the defendant,” it can “impose a sanction on the culpable attorney while at

the same time granting a continuance,” or, should “the attorney still refuse[] to

participate in the face of a clear order to do so, the court can invoke its contempt

powers against the obstructionist attorney.” Hildreth, 2019-NMCA-047, ¶ 16.

Additionally, the court could “question the defendant to determine whether he [or

she] understands the implications and consequences of the attorney’s proposed tactic

and agrees to waive his [or her] right to effective assistance of counsel at trial.”

Martin, 744 F.2d at 1251-52; see State v. Chapman, 1986-NMSC-037, ¶ 10, 104

N.M. 324, 721 P.2d 392 (“[T]he trial court must determine if a defendant is making

a knowing and intelligent waiver of counsel and fully understands the dangers of

self-representation.”).

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2. The second Breit prong

{42} The second prong of the Breit test focuses on the effect of the official’s

conduct on the defendant, “regardless of the [official’s] intent,” to determine

whether the official knows that its conduct is improper. McClaugherty, 2008-

NMSC-044, ¶ 26. As we stated in McClaugherty, “[w]e cannot overemphasize or

overstate that this is an objective standard, not a subjective one: the belief of the

[official] regarding his or her own conduct is irrelevant in this analysis.” Id. ¶ 27.

“[T]here must be a point at which lawyers [and judges] are conclusively presumed

to know what is proper and what is not.” Id. ¶ 49 (first alteration in original) (internal

quotation marks and citation omitted). Or said another way, “Breit’s knowledge test

[is] satisfied by presuming knowledge on the part of” the official if the rule is of the

kind “that every legal professional, no matter how inexperienced, is charged with

knowing.” Id. ¶¶ 49-50 (internal quotation marks and citation omitted). Under this

standard, the law presumes that the judge here knew “that [counsel’s] conduct [was]

improper and prejudicial.” Breit, 1996-NMSC-067, ¶ 32.

{43} We again focus on the motion for mistrial or continuance following the lunch

break. By this time, Seeger’s inaction had created a “presumption of prejudice”

against Defendant because there had been no meaningful adversarial testing of the

prosecution’s case or effective cross-examination. Hildreth, 2019-NMCA-047, ¶ 14.

The concept that there is a “presumption of prejudice” to a defendant in such

circumstances is not new to New Mexico. See Grogan, 2007-NMSC-039, ¶ 12

19
(including lack of meaningful adversarial testing of the prosecution’s case and

effective cross-examination as circumstances under which there is a presumption of

prejudice to a defendant (citing Cronic, 466 U.S. at 659 (internal quotation marks

and citation omitted))). Further, this is no subtle point of law—effective assistance

of counsel requires more than an attorney simply being present at trial. See Cronic,

466 U.S. at 659 (“[I]f counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing, then . . . the adversary process itself [is]

presumptively unreliable.”). Given the judge’s knowledge of Seeger’s inaction,

coupled with the new information relayed to the judge that the CD contained

statements from the State’s two witnesses who had testified the morning of the trial

as well as Defendant and our case law regarding when prejudice is presumed and

when it is an abuse of discretion to deny a continuance, we know of no calculus by

which to justify the judge’s refusal to grant a continuance, mistrial, or sanctions—

let alone allow the trial to proceed to its end.

{44} We conclude that the law clearly presumes that the judge knew it would be

improper to proceed with trial under the circumstances. The second prong of Breit

is met.

3. The third Breit prong

{45} We conclude that the judge acted “in willful disregard of the resulting mistrial,

retrial, or reversal” by allowing the trial to proceed under the circumstances. Breit,

1996-NMSC-067, ¶ 32. When analyzing the third prong of Breit, the appellate court

20
“will carefully examine the [official’s] conduct in light of the totality of the

circumstances of the trial,” and determine whether the conduct amounts to “willful

disregard of the resulting mistrial, retrial, or reversal.” Id. ¶ 40. In Breit, we defined

“willful disregard” as “a conscious and purposeful decision by the [official] to

dismiss any concern that his or her conduct may lead to a mistrial or reversal,” while

“emphasizing that the [official] is actually aware, or is presumed to be aware, of the

potential consequences of his or her actions.” Id. ¶ 34 (internal quotation marks

omitted).

{46} The State argues that the judge did not act in willful disregard of a possible

reversal because he gave Seeger every opportunity to participate. The State contends

that even if the judge knew of Seeger’s intention to not participate at trial, he could

not take Seeger’s “threat to violate his client’s constitutional rights at face value.”

The State asserts that after witnessing Seeger refuse to participate in jury selection,

the judge “could have reasonably assumed that, once trial began in earnest, Seeger

would fulfill his duty to represent Defendant.” We are not persuaded.

{47} The totality of the trial demonstrates that the judge made a “conscious and

purposeful decision” to proceed with trial despite any concern that his conduct may

result in reversal. Breit, 1996-NMSC-067, ¶ 34. The State’s argument that the judge

did not know whether Seeger would represent his client “once trial began in earnest,”

neglects the fact that the judge had witnessed Seeger fail to participate in voir dire,

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juror challenges, opening statement, and witness examination by the time Seeger

made his second motion for mistrial.

{48} Additionally, the judge acknowledged the likelihood of a reversal on appeal

when he stated that Defendant “would have . . . excellent grounds for appeal on

incompetency of counsel,” if Seeger did not participate. And after lunch, it became

clear that it was not just that Defendant had been denied effective assistance of

counsel, but that Defendant had also been prejudiced by the State’s late disclosures.

The judge is presumed to be aware that by continuing with a trial where Defendant

was not represented and where Defendant was prejudiced by the State’s late

disclosures, the result “may lead to a mistrial or reversal.” Breit, 1996-NMSC-067,

¶ 34. Again, this is no “subtle point of law, and one we can presume any . . . attorney

[or judge] to know.” McClaugherty, 2008-NMSC-044, ¶ 65 (internal quotation

marks and citation omitted).

{49} Accordingly, we conclude that under the narrow facts of this case, the judge

acted in willful disregard of the resulting reversal thus satisfying the third prong of

Breit. Retrial is barred.

III. CONCLUSION

{50} We affirm the Court of Appeals’ reversal of Defendant’s conviction, reverse

the Court of Appeals’ determination and application of Breit, and remand to the

district court for further proceedings in accordance with this opinion.

{51} IT IS SO ORDERED.

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MICHAEL E. VIGIL, Chief Justice

WE CONCUR:

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

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