December 03, 2014 – State of New Mexico v. Danny Surratt, No. 32,881

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: December 3, 2014
NO. 32,881
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DANNY SURRATT,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
Steven L. Bell, District Judge
Gary K. King, Attorney General
Yvonne M. Chicoine, Assistant Attorney General
Santa Fe, NM
for Appellee
Templeman and Crutchfield
C. Barry Crutchfield
Lovington, NM
for Appellant

OPINION
SUTIN, Judge.
{1} 	This appeal raises the issue whether a person appointed as special prosecutor
in a criminal case has authority to appoint another attorney to act as special prosecutor
instead. In Defendant’s first trial, prosecuted by a special prosecutor appointed by the
district attorney of the judicial district in which the case originated, the district court
ordered a new trial. 	Defendant’s second trial was prosecuted by a second special
prosecutor, this one appointed by the first special prosecutor. We hold that the district
attorney of the judicial district in which the case originated was the only person with
authority to appoint a special prosecutor and that the district court lacked jurisdiction
over the case being retried.
BACKGROUND
{2} 	Defendant Danny Surratt was a police officer and deputy sheriff in Lea County,
New Mexico for approximately thirty-five years. 	When he was charged with four
counts 	arising 	out 	of 	allegations 	of 	sexual 	abuse 	of 	his 	wife’s 	two 	minor
granddaughters in Lea County, Janetta Hicks, the district attorney for the Fifth Judicial
District, the judicial district in which Lea County is situated and the prosecution
originated, determined that a conflict of interest precluded her office from prosecuting
Defendant. Accordingly, acting pursuant to NMSA 1978, Section 36-1-23.1 (1984),

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Ms. Hicks appointed Diana Martwick, district attorney for the Twelfth Judicial
District, to prosecute Defendant in her stead. See id. (providing that when a district
attorney “cannot prosecute a case for ethical reasons or other good cause” the district
attorney may “appoint a practicing member of the bar of this state to act as special
assistant district attorney”).
{3} 	Ms. Martwick assigned assistant district attorneys from her office in the Twelfth
Judicial District to prosecute the State’s case against Defendant, and they proceeded
to file a criminal information against Defendant in the Fifth Judicial District Court and
then to try the State’s case against Defendant before a jury. Of the four charges that
comprised the State’s case against Defendant, the jury found Defendant guilty of a
single count of criminal sexual penetration of a child between the ages of thirteen and
eighteen. The district court dismissed two of the charges, and because the jury could
not reach a verdict as to the fourth charge, the district court declared a mistrial as to
that charge. Before Defendant was sentenced, new counsel entered the case on his
behalf. Defendant, through his new counsel, moved for a new trial on the basis of an
error in the jury instructions related to the charge of which Defendant was convicted,
and the district court granted the motion.
{4} 	When the district court ordered a new trial, Ms. Martwick was ill and
undergoing medical treatment and was therefore unable to personally prosecute the

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State’s case against Defendant. Also, an unspecified conflict had arisen between the
alleged victims and the assistant district attorney who had prosecuted Defendant in the
first trial. Owing to the conflict and because, in Ms. Martwick’s view, the assistant
district attorney “seemed overwhelmed by the case and having to retry the whole thing
all over again[,]” and lacked “the experience to deal with the re-trial[,]” Ms. Martwick
“felt that it would be in the best interest of justice to re-assign the case” to another
jurisdiction. Ms. Martwick then appointed Matthew Chandler, district attorney for the
Ninth Judicial District, as special prosecutor in the State’s case against Defendant.
{5} 	Following Mr. Chandler’s appointment as special prosecutor, Mr. Chandler’s
chief deputy district attorney entered her appearance on behalf of the State and began
moving the case toward trial. 	Defendant successfully moved to sever the two
remaining charges against him, and the State re-tried Defendant on the charge of
criminal sexual penetration of a child under the age of thirteen. 	A jury found
Defendant guilty of that charge; however, before Defendant was sentenced, his
counsel learned from an anonymous telephone call that “ ‘the jury had and used
improper information’ ” in reaching its verdict. 	Defendant moved for a new trial
contingent upon confirming the truth of the anonymous caller’s information. 	The
district court issued an order authorizing Defendant’s counsel to interview the jurors
concerning Defendant’s trial. The court also determined that, pending Defendant’s

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investigation into the jury issue, it would delay filing a judgment and sentence
pursuant to the jury’s verdict.
{6} 	Although the investigation into the jury issue did not, in defense counsel’s
estimation, “warrant further actions[,]” Defendant nevertheless moved to dismiss the
complaint and set aside the sentence because, in the process of investigating the jury
issue, defense counsel “became aware for the first time of defects in the appointment
of” Mr. Chandler as special prosecutor. Defendant argued that Mr. Chandler lacked
authority to prosecute Defendant because, among other things, Ms. Martwick, in her
role as special prosecutor, lacked authority to appoint another special prosecutor to
prosecute the State’s case. 	Defendant concluded by arguing that, because Mr.
Chandler lacked authority to prosecute Defendant, “no jurisdiction exists for criminal
prosecution of the matter[.]” In a follow-up motion containing points and authorities
in support of his lack-of-authority argument, Defendant also argued that Ms.
Martwick did not have a valid or ethical reason to appoint a new special prosecutor
to prosecute Defendant.
{7} 	The State’s response to Defendant’s motion to dismiss the complaint and set
aside the sentence included affidavits of Ms. Hicks, Ms. Martwick, and Mr. Chandler.
In relevant part, Ms. Hicks stated in her affidavit that Ms. Martwick “would not have
come back to my office for another appointment as I was already conflicted out of the

1 If Ms. Hicks and her office had a conflict that required her to appoint a special
prosecutor, here Ms. Martwick, we do not understand why Ms. Hicks excused herself
and her office for reasons of conflict from appointing a replacement special
prosecutor.
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proceeding. It would have been [Ms.] Martwick’s responsibility to make any further
[special prosecutor] appointments she deemed appropriate.” 1 Ms. Martwick stated in
her affidavit that before re-assigning the case, she contacted Ms. Hicks, and they “both
agreed that [Ms. Hicks] was conflicted out and that [Ms. Martwick] should be the one
to” appoint a new special prosecutor. Ms. Martwick also addressed the bases of her
decision to appoint another special prosecutor. Finally, Mr. Chandler stated in his
affidavit that he had read, understood, and accepted the responsibilities of the oath of
a special prosecutor as reflected by the filing of his acceptance of the appointment.
{8} 	The district court denied Defendant’s motion and proceeded to enter its
judgment reflecting Defendant’s conviction of criminal sexual penetration of a child
under age thirteen and sentenced Defendant to eighteen years of imprisonment. The
State dismissed the remaining charge of criminal sexual penetration of a child between
the ages of thirteen and eighteen without prejudice in consideration of Defendant’s
sentence of incarceration and on the ground of “judicial efficiency[.]”
{9} 	On appeal from the district court’s judgment and sentence, Defendant argues
that his conviction should be reversed and the matter remanded because Mr. Chandler

2 Based on the title and the text of Section 36-1-23.1, it is clear that, for the
purposes of and in the context of this case, the designation “special assistant district
attorney[]” is synonymous with the designation of “special prosecutor[]” outside of
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was not lawfully appointed as special prosecutor and did not have lawful authority to
prosecute the case, and because the district court lacked jurisdiction over the second
trial of Defendant. We agree and reverse the district court’s judgment and sentence
and remand this matter to the district court for further proceedings.
DISCUSSION
{10} 	Whether, pursuant to Section 36-1-23.1, Ms. Martwick had authority to appoint
Mr. Chandler as a special prosecutor in the State’s case against Defendant, and the
related question whether the district court had jurisdiction over this matter, are
questions of law that we review de novo. See State v. McClaugherty, 2008-NMSC-
044, ¶ 21, 144 N.M. 483, 188 P.3d 1234 (stating that a question of jurisdiction of the
district court that is answered through statutory construction is reviewed de novo).
{11} 	Section 36-1-23.1, titled “[s]pecial prosecutors in conflict cases[,]” provides
that
[e]ach district attorney may, when he cannot prosecute a case for ethical
reasons or other good cause, appoint a practicing member of the bar of
this state to act as special assistant district attorney. 	Any person so
appointed shall have authority to act only in the specific case or matter
for which the appointment was made. An appointment and oath shall be
required of special assistant district attorneys in substantially the same
form as that required for assistant district attorneys[.]2

the office of the appointing district attorney. 	The parties use the term “special
prosecutor,” as do we.
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{12} 	Defendant concedes and we agree that Ms. Martwick had authority to designate
an assistant district attorney within her own office to prosecute Defendant, as she did
in the first trial. 	State v. Cherryhomes, 1996-NMSC-072, ¶ 11, 122 N.M. 687, 930
P.2d 1139 (stating that where a district attorney has been appointed as special
prosecutor in a particular case pursuant to Section 36-1-23.1, he or she is permitted
to delegate the task of prosecution to an assistant district attorney acting under his or
her supervision). 	Defendant contends, however, that as special prosecutor Ms.
Martwick did not have the authority of a “district attorney” for the purpose of
appointing a special prosecutor pursuant to Section 36-1-23.1. We agree.
{13} 	As the district attorney for the Fifth Judicial District, Ms. Hicks had a statutory
duty to prosecute Defendant on behalf of the State for the alleged crimes originating
within Lea County. 	NMSA 1978, § 36-1-18(A)(1) (2001) (“Each district attorney
shall . . . prosecute . . . for the state in all courts of record of the counties of his district
all [criminal] cases . . . in which the state or any county in his district may be a party
or may be interested[.]”). 	Ms. Hicks’ position also vested her with the lawful
authority to appoint a special prosecutor when ethical reasons or other good cause so
required. 	Section 36-1-23.1. 	When Ms. Hicks appointed Ms. Martwick to act as

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special prosecutor in this matter, Ms. Martwick was vested with the limited authority
to prosecute the State’s case against Defendant. Section 36-1-23.1 (“Any person . . .
appointed [to act as special prosecutor] shall have authority to act only in the specific
case or matter for which the appointment was made.”). Ms. Martwick’s appointment
as special prosecutor authorized her, in effect, to step into the shoes of the district
attorney for the Fifth Judicial District solely to prosecute as prescribed by Section 36-
1-18(A)(1).
{14} 	Nothing in the language of Section 36-1-23.1 supports a conclusion that the
Legislature intended a special prosecutor, appointed for the purpose of prosecuting a
single case, to assume the authority with which the appointing district attorney was
vested by virtue of having been elected to the office to appoint a special prosecutor.
While a conflict may have prevented Ms. Hicks and her office from prosecuting
Defendant, under Section 36-1-23.1, she nevertheless retained the statutory duty to act
on behalf of the Fifth Judicial District to appoint a special prosecutor to do so, as she
did with the appointment of Ms. Martwick. Having learned that Ms. Martwick could
no longer prosecute the case in her stead, it was incumbent upon Ms. Hicks, as the
only person with lawful authority to do so, to appoint another special prosecutor. By
appointing Mr. Chandler to act as special prosecutor in Defendant’s case, Ms.
Martwick unlawfully assumed the exclusive authority of the district attorney for the

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Fifth Judicial District to appoint a special prosecutor to prosecute a matter originating
within the Fifth Judicial District.
{15} 	We are not persuaded by the State’s attempt to explain its position that Ms.
Martwick’s “transfer” of the case to Mr. Chandler was lawful and did not deprive the
district court of jurisdiction. With no applicable authority nor any manageable logic,
the State offers several unsupported notions. The State concentrates on the fact that
both Ms. Martwick and Mr. Chandler are elected district attorneys who took the
required oaths in that regard and had statutory prosecutorial duties, thus curing any
concerns about whether the appointment by Ms. Martwick comported with the
language of Section 36-1-23.1 or created any actual prejudice to Defendant. All that
occurred, according to the State, was nothing more than a substitution by Ms.
Martwick of a qualified attorney as an authorized “hybrid” between what the State
characterizes as a “regular assistant district attorney[]” and a “special assistant district
attorney.” 	The Cherryhomes and Hollenbeck cases on which the State relies, see
Cherryhomes, 1996-NMSC-072, ¶¶ 6, 11, and State v. Hollenbeck, 1991-NMCA-060,
¶¶ 7, 14, 15, 112 N.M. 275, 814 P.2d 143, which are the only cases remotely close to
the issue here, in no way support the State’s argument. And we particularly reject the
State’s implication, when citing to Cherryhomes and Hollenbeck, that the legislative
enactments of NMSA 1978, Section 36-1-1 (1909), NMSA 1978, Section 36-1-5

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(1988), NMSA 1978, Section 36-1-2 (1984), and Section 36-1-23.1 indicate both a
legislative intent to allow Ms. Martwick’s appointment of Mr. Chandler or, as more
directly argued by the State, if the Legislature had intended to preclude such an
appointment delegation responsibly it could have easily done so. It would be fruitless
for us to attempt to set out in any more detail the State’s eleven-plus-page discussion
attempting to justify the significance of these notions and its position on appeal.
{16} 	In sum, we hold that Ms. Martwick lacked lawful authority to appoint Mr.
Chandler, Mr. Chandler lacked authority to prosecute the State’s case against
Defendant, and the district court lacked jurisdiction over Defendant’s re-trial. “[I]f
an individual who does not have authority to prosecute does prosecute, the [district]
court will lack jurisdiction.” Hollenbeck, 1991-NMCA-060, ¶ 10. Accordingly, we
reverse the district court’s judgment and sentence and remand this matter to the
district court for further proceedings. 	See id. 	¶¶ 14-15 (reversing the defendant’s
conviction where a special prosecutor’s appointment did not conform to the legal
requirements of Section 36-1-23.1). Because we reverse on jurisdictional grounds, we
do not consider Defendant’s argument regarding the validity of Ms. Martwick’s
reasons for appointing a special prosecutor.
CONCLUSION

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{17} 	We reverse the district court’s judgment and sentence and remand this matter
to the district court for further proceedings.
{18} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
_______________________________
JAMES J. WECHSLER, Judge
_______________________________
MICHAEL E. VIGIL, Judge