State v. Amador

Office of the
New Mexico
Director Compilation
Commission
2024.04.25
'00'06- 11:15:39
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2024-NMSC-006

Filing Date: February 19, 2024

No. S-1-SC-38941

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

RUDOLPH AMADOR,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Melissa A. Kennelly, District Judge

Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Petitioner

Hector H. Balderas, Attorney General
Van Snow, Assistant Attorney General
Albuquerque, NM

for Respondent

OPINION

VIGIL, Justice.

{1} Defendant Rudolph Amador was convicted of two counts of criminal sexual
contact of a minor, contrary to NMSA 1978, Section 30-9-13(B)(1) (2003), and one
count of child abuse, contrary to NMSA 1978, Section 30-6-1(D) (2009). The district
court sua sponte filed a motion for a new trial, citing prosecutorial misconduct and
ineffective assistance of counsel. After hearing argument, the district court ultimately
ordered a new trial based on four instances of prosecutorial misconduct, but denied
Defendant’s argument that the retrial was barred. Defendant was retried and convicted
on all three counts.
{2} Defendant appealed to the Court of Appeals, arguing that retrial was barred by
double jeopardy under State v. Breit, 1996-NMSC-067, 122 N.M. 655, 930 P.2d 792,
and that he received ineffective assistance of counsel. Docketing Statement, State v.
Amador, A-1-CA-38665 (N.M. Ct. App. Dec. 27, 2019). The Court of Appeals rejected
Defendant’s arguments and affirmed his convictions. State v. Amador, A-1-CA-38665,
mem. op. ¶ 1 (N.M. Ct. App. July 19, 2021) (nonprecedential).

{3} We granted Defendant’s petition for writ of certiorari on both issues. We reverse
the Court of Appeals and hold that Defendant’s second trial was barred by double
jeopardy under Article II, Section 15 of the New Mexico Constitution.

I. BACKGROUND

A. District Court

{4} The charges arose from allegations that Defendant sexually abused his friend’s
eleven-year-old daughter when Defendant spent the night at his friend’s house. The
child’s father testified that he was friends with Defendant, had known him for more than
twenty years, and had invited Defendant to stay at his house for a couple of nights. The
father also testified that his eleven-year-old daughter stayed with him on the second
night.

{5} The child testified that she had her own bedroom, which she slept in that night.
She woke up to Defendant touching her “front private part” and “back private part.” She
clarified that the contact to her vagina and buttocks was skin-to-skin, under her
underwear. Defendant left her room once she started to wiggle and move away from
him. After Defendant left her room, she ran to her father’s room screaming, woke her
father, and told him what had happened.

{6} The father testified that after his daughter woke him up and when he became
aware of what had happened, he confronted Defendant, who was eating a corndog in
the dark in the kitchen. Defendant denied touching the child. However, after confirming
what had happened with his daughter, the father kicked Defendant out of the house.

{7} After the State rested, the prosecutor informed the court and defense counsel
that he planned to impeach Defendant with a prior conviction for child abuse, should
Defendant take the stand. Defense counsel agreed that Defendant had an “ancient
prior,” but she was unsure whether it fell within the ten-year window under Rule 11-609
NMRA. The prosecutor then stated that the prior conviction was a felony and fell within
the ten-year window. The judge told the prosecutor he could impeach Defendant with
the prior conviction, but he could not get into the specific facts of the offense.

{8} When Defendant took the stand, defense counsel opted to bring up the prior
conviction during her direct examination by asking if he had “ever been charged with a
felony.” Defendant responded that he had been charged with child abuse in 2009. He
explained that the charge was based on a fight with his seventeen-year-old stepson and
that he ended up taking a plea deal, serving three years of probation. Defendant also
testified that his girlfriend had three daughters, and that he had never been accused of
any felonies involving them. Concerning his friend’s daughter, Defendant testified that
he had known her all her life and that he would never do anything like what he was
accused of doing. He denied entering her room and touching her. In his closing
argument at the end of the evidence, the prosecutor began with:

Basically, what this case is about, I mean, is the criminal sexual contact of
a minor. Defendant says he didn’t do it. Okay, and frankly, I think, you
know, for someone who is not a pedophile, it’s hard to understand why
any grown man would touch a child. Isn’t it? When you think about it, how
. . . why would any grown man have any sexual interest in a child? It
seems incomprehensible, but we know it happens all the time, don’t we? I
mean something we see a lot in the media, and even, I’m a lifelong
Catholic, I love the Catholic Church, and even in an institution such as the
Catholic Church, you know, as hard as it is to believe, as painful, I think as
a Catholic to see, you know we have priests, even priests are now
abusing these children. Sometimes, these priests go for years and years
and years before they are caught. Umm . . . you know they have access to
these kids, and they have . . .

(emphasis added). The judge cut off the closing and directed the parties to approach
the bench. The judge informed the prosecutor that the argument was improper and that
allowing it to go further could result in reversible error. The prosecutor continued his
closing argument,

Uh…so…uh…Defendant said he never, he didn’t do it, and then he cites,
uh, then he says that he has three, three stepdaughters. We don’t know,
that’s just what he says. And he did admit that he was a convicted, you
know, felon. That’s just what he says. That he didn’t, he never touched his
stepdaughters, we don’t know . . .

Then, the prosecutor summarized the relevant evidence. Next, the prosecutor said,
“This Defendant, here, this guy here, he touched a little eleven-year-old [girl’s] vagina
and buttocks, for whatever reason—because he’s a pedophile, [unintelligible] to do
something like that. Who knows what a pedophile looks like—we don’t know, as we all
know, pedophiles come in all shapes and forms” (emphasis added). The prosecutor
then sought to describe the reasonable doubt standard:

Reasonable doubt is the sort of doubt you would use in making important
decisions about important things in your life. Buy a car, buy a house, or
what have you. In relation to this case, I would ask you to consider
whether you feel safe enough, based on what you heard today, to let this
guy stay in a house with another child.

Defense counsel failed to object at any point.
{9} Defense counsel gave her closing argument. She argued that there was no
testimony to support the use of the word “pedophile” and that the State was bringing up
the “ugly word” and Catholic priests in an attempt to get the jury to view Defendant in
such a way. Defense counsel then argued that the child’s testimony was inconsistent:
she was coached, could have been dreaming, and did not testify as though she was
traumatized—“not an ounce of nerves.”

{10} In rebuttal, the prosecutor again referenced Defendant’s stepdaughters by
asking: “Where are the three stepdaughters?” The judge again asked counsel to
approach the bench. The judge told the prosecutor, “You cannot comment [on] his
failure to present evidence.” After addressing the defense counsel’s arguments, the
prosecutor moved on to discuss motive: “The motives of a pedophile, it is an
inexplicable, a nonpedophile may think, why do they do things like that?” (emphasis
added). Defense counsel objected, and the judge told the prosecutor that he was
“walking very close to asking [D]efendant to prove himself innocent, that is not his
burden, and you can’t refer to him—you’re not to refer to him as a pedophile again.” The
prosecutor returned to his argument, focusing again on the definition of reasonable
doubt. Again, he asked the jurors whether they “would want a little girl alone in the
house with the defendant.”

{11} After the jury returned guilty verdicts for two counts of criminal sexual contact of a
minor and one count of child abuse, the court asked the parties if they would like to
proceed directly to sentencing. Defense counsel said there was something that needed
to be clarified before moving forward:

Defense counsel: [Defendant] only has the one prior it was, it was either a
conditional discharge or a deferred and so I think that’s something we
need to clear up before we move forward and uh . . .

Prosecutor: It was a conditional discharge.

Defense counsel: It was?

Prosecutor: Yeah.

Judge: And he successfully completed that?

Defense counsel: Yes.

Prosecutor: I can’t remember now, I think I have the, I gave her the
information.

Defendant: Yes, he did.

Prosecutor: I think there was, there was some issue, but I think he . . .

Judge: You didn’t tell me that, and you used it as a . . .
Prosecutor: I think he did complete it, uh . . . the conditional discharge
[unintelligible].

Defendant: [unintelligible]

Prosecutor: I’m not sure. I don’t remember but . . .

Judge: You represented to the court that it was a prior conviction, and for
that reason, I allowed you to—and [defense counsel], you didn’t object.

Defense counsel: I didn’t know it was a conditional discharge until he told
...

Judge: I allowed you to use it as a, as a, as impeachment evidence.

Prosecutor: Okay, well I’m not sure, I . . . I . . . I guess, uh, I didn’t realize,
uh.

Judge: Wow.

Prosecutor: And I can’t remember. It’s been some time since I looked at it
but uh . . . closely, but I think it may, it may have got violated, and I’m not
sure your honor at this point. I’m not sure.

Judge: Well, what you represented to the court was that he had a prior
conviction that you were going to impeach him with.

Prosecutor: Right, and that’s why. . .

Judge: And it’s not a conviction if it is a completed conditional discharge.
When they plead guilty, they are told if you successfully complete this, it
does not count as a conviction.

Prosecutor: Okay.

Judge: And you represented to the court, you stand up here and told me
as an officer of the court that he had a prior conviction and now you are
telling me two hours later you’re not really sure?

Prosecutor: Uh. . .

Judge: Mr. [prosecutor]? You’re not really sure? You wouldn’t know?

Prosecutor: I apologize. I guess I didn’t think.
Judge: Apologize? You just got a conviction, so you used something
improperly to obtain a conviction.

Prosecutor: Okay, and I guess I . . . that was my mistake and I [inaudible].

Defense counsel stated that she was “tempted . . . to ask the court for a mistrial”
because the information on the conditional discharge was not disclosed. The judge then
admonished defense counsel: “But you conceded that he had a prior conviction. We
stood up here and talked, and had a conference, and you conceded he had a prior
conviction, and now, two hours later, all of a sudden, oh well, it wasn’t really a
conviction.” The prosecutor then said he “thought a conditional discharge would count
as a prior conviction” for impeachment purposes. The judge responded, “No it’s not. It’s
not a conviction for anything. It’s considered not a conviction if it’s successfully
completed.”

{12} Concerned with the “prosecutorial misconduct” and “visibly ineffective assistance
of counsel,” the judge filed a sua sponte motion for a new trial—enumerating the
following specific instances of prosecutorial misconduct and ineffective assistance of
counsel:

a. When the prosecutor learned that Defendant would testify[,] he
represented to the court and defense counsel that Defendant had a
prior conviction for child abuse which he would use for
impeachment purposes. Defense counsel did not object. When
Defendant testified, [defense] counsel elicited the fact that
Defendant had a prior conviction for child abuse[,] and defendant
gave his version of the events that led to the “conviction.” However,
after trial and after the jury had returned its guilty verdict, defense
counsel advised the Court that Defendant did not[,] in fact[,] have a
prior conviction for child abuse, but rather a conditional discharge
where the Defendant had successfully completed his probation.
The prosecutor stated that he thought a conditional discharge was
synonymous with a prior conviction, which it is not.

b. During closing argument the prosecutor repeatedly referred to
Defendant as a “pedophile” and made reference to the Catholic
Church clergy abuse scandal. The prosecutor also referred to
himself as a Catholic. The prosecutor argued that normal people
like himself and the jurors could not understand why pedophiles did
what they did. Defense counsel failed to object to any of these
arguments.

c. During his closing argument[,] the prosecutor stated that the
[D]efendant should have brought in certain evidence if he wanted
the jurors to believe he was not guilty. This was an impermissible
shift in the burden of proof.
d. Defense counsel was patently unprepared for trial.

e. During the course of the trial all of the prosecution witnesses
referred to . . . [D]efendant as “the defendant.” They did not refer to
him by name even though he was a family friend of 20 years. The
prosecution had obviously instructed the witnesses, including the
12-year old child [and alleged victim], to refer to him as the
defendant and not by his name. Defense counsel never objected.

Citing State v. Grogan, the judge emphasized her judicial “duty to maintain the integrity
of the court” and set a hearing on the motion for a new trial. 2007-NMSC-039, ¶ 10, 142
N.M. 107, 163 P.3d 494.

{13} The day before the hearing on the motion, Defendant moved for a mistrial and to
bar reprosecution under Breit, 1996-NMSC-067. At the hearing, the State, represented
by new counsel, did not oppose a new trial but opposed a bar to retrial. In the State’s
response to Defendant’s motion, the State argued that the prosecutorial misconduct by
the initial prosecutor did “not rise to the level of the most severe prosecutorial
transgressions.” The judge retired before ruling on the motion.

{14} The new judge who presided over Defendant’s case reviewed the audio
recording of Defendant’s trial and the hearing on the sua sponte motion for a new trial.
Similarly concerned that the prosecutor’s misconduct undermined the court’s integrity,
the judge ordered a new trial based on four instances of prosecutorial misconduct in
closing arguments: (1) the statement that Defendant “did admit he was a convicted
felon,” (2) the statement that Defendant “touched a little eleven-year-old vagina and
buttocks for whatever reasons—because he’s a pedophile,” (3) the statements about
the reasonable doubt standard “effectively inverted the reasonable doubt standard by
implying to the jury that they should convict Defendant if they had a reasonable doubt
as to his innocence,” and (4) the line of argument about the Catholic Church and the
prosecutor’s faith. Regarding ineffective assistance of counsel, the judge noted that
defense counsel did not object to the statements made or request any curative
instructions.

{15} As to Defendant’s double jeopardy challenge, the court determined that while the
first two prongs of the Breit test were met, the third prong was not. The court found that
“there is no indication that the prosecutor intended to provoke a mistrial—his conduct
was simply overreaching and overzealous.” Thus, the issue boiled down to whether the
prosecutor acted in willful disregard that a mistrial would result. The court found that
because the prosecutor stopped his line of argument when admonished by the court
and because his misconduct was primarily confined to the closing argument, his actions
were “reckless and heedless,” not willful. The court also found that the prosecutor’s
“statement that Defendant ‘did admit he was a convicted felon’ was negligently
incorrect.” The judge denied Defendant’s motion to bar retrial, concluding that any
“[p]rejudice to Defendant [could] be rectified by a new trial.”
{16} The case proceeded to a second trial where Defendant was again convicted of
two counts of criminal sexual contact of a minor and one count of child abuse.
Defendant appealed to the Court of Appeals.

B. Court of Appeals

{17} On appeal, Defendant argued that double jeopardy barred the second trial and
that he was deprived of effective assistance of counsel because his attorney had a
conflict of interest. Amador, A-1-CA-38665, mem. op. ¶¶ 1, 5. The Court of Appeals
rejected both arguments. Id. ¶ 6. The Court rejected Defendant’s Breit claim because
the prosecutor’s conduct “did not rise to the level of willful disregard required to bar
retrial.” Id. ¶¶ 2-4 (internal quotation marks omitted). While agreeing that “the
prosecutor’s improper remarks may have influenced the jury’s determination of
credibility,” the Court of Appeals said that because “the misconduct itself was limited to
four discreet instances that occurred primarily during closing argument,” the misconduct
was neither pervasive throughout the trial nor intended to inject unfair prejudice into the
trial. Id. ¶ 4.

{18} In addition, the Court of Appeals reasoned, “while the prosecutor was negligently
incorrect in his belief that Defendant’s conditional discharge could be used at trial as a
prior felony, the prosecutor demonstrated his intent to avoid mistrial on this issue by
notifying defense counsel—without objection—and the court of his intent to use a prior
felony when Defendant testified.” Id. On the ineffective assistance of counsel issue, the
court held that it would not presume prejudice where Defendant failed “to establish
either the existence of an actual conflict of interest or that he received ineffective
assistance of [counsel] during his second trial.” Id. ¶ 5. The Court of Appeals affirmed
Defendant’s convictions. Id. ¶ 6.

II. DISCUSSION

{19} Defendant timely filed a petition for writ of certiorari with this Court. The petition
was granted on both issues: first, “[w]hether retrial should have been barred under State
v. Breit based on the prosecutor’s pervasive misconduct,” and second, “[w]hether
[Defendant] received ineffective assistance of counsel.” We limit our discussion to the
dispositive issue of whether a retrial should have been barred based on prosecutorial
misconduct.

{20} In Breit, this Court announced a three-prong test for determining when
prosecutorial misconduct bars a second trial as violating double jeopardy under Article
II, Section 15 of the New Mexico Constitution: (1) “when 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.” Breit, 1996-NMSC-067, ¶ 32.

{21} The State concedes that the first two prongs of the Breit test are met. Although
we are not bound by it, we accept the State’s concession, as the Court of Appeals only
addressed Breit’s third willful disregard prong. But see State v. Comitz, 2019-NMSC-
011, ¶ 25, 443 P.3d 1130 (declining to accept State’s concession that some of the
defendant’s convictions violated double jeopardy).

A. Standard of Review

{22} “An appellate review of a prosecutorial misconduct claim presents a mixed
question of law and fact.” State v. McClaugherty, 2008-NMSC-044, ¶ 39, 144 N.M. 483,
188 P.3d 1234. We “defer to the district court when it has made findings of fact that are
supported by substantial evidence and [review] de novo the district court’s application of
the law to the facts.” Id. On the ultimate question of whether a defendant’s right to be
free from double jeopardy was violated, our review is de novo. Comitz, 2019-NMSC-
011, ¶ 26.

B. The Prosecutor Acted in Willful Disregard of the Resulting Mistrial

{23} If a prosecutor “either intends to provoke a mistrial or acts in willful disregard of
the resulting mistrial, retrial or reversal,” the third prong of Breit is met. 1996-NMSC-
067, ¶ 32 (emphasis added). There is no contention that the prosecutor here acted with
an intent to provoke a mistrial; we therefore address whether the prosecutor acted with
a willful disregard of the resulting mistrial, retrial, or reversal.

{24} “[Willful disregard] connotes a conscious and purposeful decision by the
prosecutor to dismiss any concern that his or her conduct may lead to a mistrial or
reversal.” Id. ¶ 34 (internal quotation marks omitted). A prosecutor acts with “willful
disregard” of a possible mistrial or reversal when he or she “is actually aware, or is
presumed to be aware, of the potential consequences of his or her actions.” Id. “The
presumption that the prosecutor is aware of such consequences is established by the
prosecutor’s egregious conduct, not necessarily from an inference of a conscious and
purposeful decision to bring about a mistrial.” McClaugherty, 2008-NMSC-044, ¶ 58.
This is an objective standard. Id. ¶ 72. (“We clarify the holding in Breit that the standard
by which courts should evaluate a prosecutor’s conduct to determine whether the
conduct is willful is an objective one in light of the totality of the circumstances of the
trial.”). That said, the threshold of willful disregard was intended to be high—“double
jeopardy will rarely bar reprosecution if the misconduct is an isolated instance during the
course of an otherwise fair trial.” Breit, 1996-NMSC-067, ¶ 33. That high threshold was
met here.

{25} Defendant contends that the prosecutor acted in willful disregard of the resulting
mistrial or reversal when he improperly represented Defendant’s conditional discharge
as a felony conviction to impeach Defendant and when he then argued Defendant was
not credible in closing arguments. Defendant also contends that the prosecutor’s
misconduct was willful during closing argument, when he repeatedly called Defendant a
pedophile, mentioned the Catholic Church clergy abuse scandal, inverted the
reasonable doubt standard, and shifted the burden of proof to Defendant. The State, in
turn, admits the prosecutor erred in representing Defendant had a prior felony
conviction in his closing and rebuttal arguments. But, the State asserts that such errors
are not egregious or pervasive enough to prove the prosecutor acted with willful
disregard of a mistrial or new trial. We disagree with the State.

{26} We begin with the conditional discharge. After the State rested, the prosecutor
informed the court that he would impeach Defendant with—what the prosecutor
characterized as—a prior felony conviction for child abuse. The only way to refute the
child’s testimony was for Defendant to testify since they were the only ones present. In
reliance on the prosecutor’s representation, defense counsel brought up the conviction
to lessen its impact on the jury. In urging the jury to find Defendant guilty, the prosecutor
argued that Defendant was a convicted felon for child abuse and, therefore, should not
be believed. The jury then found Defendant guilty of criminal sexual contact of a minor
and child abuse. Two hours later, the prosecutor disclosed that Defendant received a
conditional discharge, and his exchange with the judge demonstrates that he did not
know a conditional discharge could not count as a prior felony conviction for
impeachment purposes and that he was not clear on whether Defendant had, in fact,
satisfactorily completed the terms of the conditional discharge. In denying Defendant’s
Breit motion, the judge described the prosecutor’s incorrect representation as
“negligently incorrect,” not rising to the level of willful misconduct. We disagree.

{27} A basic, fundamental rule of evidence is that impeachment of a defendant in a
criminal case is governed by Rule 11-609. The rule permits impeaching a testifying
defendant’s “character for truthfulness” with a felony conviction not older than ten years
“if the probative value of the evidence outweighs its prejudicial effect to that defendant.”
Rule 11-609(A)(1)(b). It is settled that the admission of a misdemeanor or felony
conviction must be approached with great caution because it may cause undue,
irreparable prejudice. State v. Williams, 1966-NMSC-145, ¶ 11, 76 N.M. 578, 417 P.2d
62. The reasons are part of the fabric of criminal law that any competent prosecutor
knows:

When a person is put on trial for an offense, he is to be convicted, if at all,
by evidence which shows that he is guilty of that offense, and not by
evidence showing him guilty of other offenses wholly unconnected with the
one charged, and the evidence on a trial should be confined to the
question in issue. A man cannot be convicted of crime because he is a
bad man generally or has committed other crimes for which he has not
been punished, but proof of other crimes has a tendency to prejudice the
minds of the triers against the accused and to predispose them to a belief
in his guilt. In addition, there is the grave danger that the jury may be
confused by the evidence relating to the distinct crime.

State v. Rowell, 1966-NMSC-231, ¶ 5, 77 N.M. 124, 419 P.2d 966 (quoting 1 Ronald A.
Anderson, Wharton’s Criminal Evidence § 232, at 497 (12th ed. 1955)). Simply stated,
the danger is that the jury will believe that because the defendant has committed a
crime in the past, the defendant is predisposed to commit crimes and return a conviction
on this basis. People v. Molineux, 61 N.E. 286, 293-94 (N.Y. 1901); People v. Emmel,
127 N.E. 53, 57 (Ill. 1920). It is also well recognized that the danger of prejudice is even
more remarkable when the conviction of a prior crime for the same offense on trial is
admitted because the jury might believe “if a defendant did it before, the defendant
probably did so this time.” State v. Fernandez, 2023-NMSC-005, ¶ 17, 528 P.3d 621
(text only)1 (quoting Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967)).

{28} There are “rules that every legal professional, no matter how inexperienced, is
charged with knowing.” Breit, 1996-NMSC-067, ¶ 33. These are such rules. Since 1966,
the rule in New Mexico has been clear: “All reasonable care, and the utmost good faith,
must be exercised by the prosecutor, when questioning an accused about prior
convictions, [so] an accused is not prejudiced by suggestions that he has been
convicted of a misdemeanor or felony, when . . . he has not been so convicted.”
Williams, 1966-NMSC-145, ¶ 11; see Rowell, 1966-NMSC-231, ¶ 6. The apparent
dangers of unfair, undue prejudice clearly require due diligence. Williams, 1966-NMSC-
145, ¶ 11. “Generally, the prosecutor has the burden of going further to verify the prior
conviction[] before he can properly proceed to question the accused concerning the
same.” Id. It is, therefore, a basic, fundamental principle that “a prosecutor[] who seeks
to have a defendant make an admission concerning a felony when there has been no
conviction[] hazards a reversal.” State v. Miller, 1979-NMCA-014, ¶ 22, 92 N.M. 520,
590 P.2d 1175. A basic rule of New Mexico law is that a conditional discharge is not a
felony conviction. See NMSA 1978, § 31-20-13 (1994); In re Treinen, 2006-NMSC-013,
¶ 4, 139 N.M. 318, 131 P.3d 1282 (per curiam).

{29} In McClaugherty, we said there “must be a point at which lawyers are
conclusively presumed to know what is proper and what is not.” 2008-NMSC-044, ¶ 49
(quoting Pool v. Superior Court, 677 P.2d 261, 270 (Ariz. 1984) (en banc)). That point
was reached in this case. Simply researching the relevant statute shows that a
conditional discharge is entered without an adjudication of guilt. Section 31-20-13(A)
(stating, “the court may, without entering an adjudication of guilt, enter a conditional
discharge”). Moreover, since at least 1998, our case law has been clear that a
conditional discharge is not a conviction. State v. Herbstman, 1999-NMCA-014, ¶ 20,
126 N.M. 683, 974 P.2d 177 (rejecting the argument that a person who receives a
conditional discharge has been convicted); State v. Harris, 2013-NMCA-031, ¶ 3, 297
P.3d 374 (stating that a conditional discharge cannot serve as a conviction unless a
statute specifically so states). As such, even if the prosecutor did not actually know his
conduct was improper and prejudicial, it must be presumed that the prosecutor was
aware of the consequences of his actions and acted with willful disregard of a mistrial or
reversal in exposing the jury to inadmissible, prejudicial evidence. If those responsible
for enforcing the law do not understand basic evidentiary rules while wielding the
considerable power of the State, it undermines the public’s confidence in the justice
system. Tested against Breit’s objective standard, the prosecutor’s conduct was
sufficiently egregious to trigger the bar of double jeopardy.

{30} The district court failed to assess the totality of the circumstances properly,
especially the prosecutor’s apparent lack of understanding of the fundamental principles

1“(Text only)” indicates the omission of nonessential punctuation marks—including internal quotation
marks, ellipses, and brackets—that are present in the text of the quoted source, leaving the quoted text
otherwise unchanged.
of impeachment by a felony conviction, coupled with a lack of diligence on his part. As
we explained in McClaugherty, we focus “on the effect of the prosecutorial misconduct
on the defendant, regardless of the prosecutor’s intent.” 2008-NMSC-044, ¶ 26. The
reason for this approach was clearly explained in Breit:

The object of constitutional double-jeopardy provisions is not to punish
disreputable prosecutors. The purpose, rather, is to protect the
defendant’s interest in having the prosecution completed by the original
tribunal before whom the trial was commenced. Defendants should be
protected from reprosecution once a prosecutor’s actions, regardless of
motive or intent, rise to such an extreme that a new trial is the only
recourse.

1996-NMSC-067, ¶ 22 (emphasis added) (citation omitted). Therefore, we reject the
district court’s findings that the prosecutor had not “intended to provoke a mistrial” and
that the prosecutor merely made a “negligently incorrect” statement as clearly
erroneous. Clearly erroneous findings by the trial court are not entitled to deference.
McClaugherty, 2008-NMSC-044, ¶ 48.

{31} The prosecutor’s misconduct concerning the conditional discharge being
represented as a prior felony, then using it to impeach Defendant’s credibility in the
closing argument where Defendant’s credibility was critical may have been sufficient to
conclude that Breit was a bar to Defendant’s second trial. See McClaugherty, 2008-
NMSC-044, ¶¶ 60, 70 (concluding that a single incident of misconduct at trial was a
“‘willful disregard’ of the potential for a mistrial, retrial, or reversal”). However, we need
not decide that here because additional instances of prosecutorial misconduct
prejudiced Defendant in this case.

{32} The prosecutor referred to Defendant as a pedophile five times in his closing
argument and rebuttal, referred to the Catholic Church clergy abuse scandal, argued
that Defendant should have brought his stepdaughters to testify, and asked the jurors to
shift the burden of proof and protect other children from Defendant. These arguments
were also extremely prejudicial and improper. See White v. State, 228 So. 3d 893, 910-
911 (Miss. Ct. App. 2017) (ruling that repeatedly calling the defendant a pedophile or
molester was grounds for reversal); Rodriguez v. State, 210 So. 3d 750, 754 (Fla. Dist.
Ct. App. 2017) (stating that, by calling the defendant a pedophile, the prosecutor
“suggests the defendant has engaged in repeated sexual abuse of minors and raises a
profiling argument, namely that because he is a pedophile, it is likely that he would
sexually molest children, including this specific victim”); People v. Lewis, 116 N.Y.S.3d
49, 51-52 (N.Y. App. Div. 2019) (finding the prosecutor’s argument improper where it
“referenced the sexual abuse scandals involving the Catholic Church and Orthodox
Jewish communities” and stating that prosecutors “must stay within the four corners of
the evidence and avoid irrelevant and inflammatory comments which have a tendency
to prejudice the jury against the accused” (internal quotation marks and citation
omitted)); State v. Allen, 2000-NMSC-002, ¶ 104, 128 N.M. 482, 994 P.2d 728 (“We
agree with Defendant that it is improper for the prosecution to refer the jury to matters
outside the record or to make certain kinds of ‘law and order’ appeals.”); State v. Paiz,
2006-NMCA-144, ¶ 58, 140 N.M. 815, 149 P.3d 579 (cautioning prosecutors not to
invite jurors to put themselves in the victims’ place).

{33} These improper arguments compounded to prejudice the jury against Defendant
and, combined, demonstrated the prosecutor’s willful disregard of the resulting mistrial.

III. CONCLUSION

{34} For all the foregoing reasons, we hold that Defendant’s second trial was barred
by double jeopardy under Article II, Section 15 of the New Mexico Constitution. The
Court of Appeals is reversed, and the case is remanded to the district court to vacate
Defendant’s convictions and discharge Defendant from any further prosecution in this
matter.

{35} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice