February 27, 2019- State of New Mexico v. Henry Hildreth, Jr., No. A-1-CA-36833

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:
Filing Date: February 27, 2019 Court of Appeals of New
Filed 2/27/2019 12
No. A-1-CA-36833 nL
STATE OF NEW MEXICO, Merk
Plaintiff-Appellee,
V.
HENRY HILDRETH JR.,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Robert A. Aragon, District Judge

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

for Appellee

Bennett J. Baur, Chief Public Defender

Caitlin C.M. Smith, Assistant Appellate Defender
Santa Fe, NM

for Appellant

Mexico
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1 	OPINION
2 V ANZI, Judge.
3 	{1} 	Defendant Henry Hildreth Jr. appeals his misdemeanor and felony convictions
4 for aggravated battery against a household member following a jury trial in which
5 his 	attorney refused to participate. Defendant raises 	several arguments. 	First,
6 Defendant 	argues, 	and 	the 	State 	concedes, 	that 	Defendant 	was 	denied 	his
7 constitutional right to assistance of counsel. Second, Defendant argues the district
8 court judge's conduct during trial should bar his retrial on double jeopardy grounds.
9 Third, Defendant argues the district court abused its discretion in not granting his
10 motions for a continuance and mistrial. Lastly, Defendant claims the amended
11 	judgment convicting him of two counts of aggravated battery against a household
12 member based on a single incident constitutes double jeopardy. We agree that the
13 	absence of effective representation deprived Defendant of a fair trial and mandates
14 reversal of his convictions. We disagree that the district judge's conduct bars retrial,
15 	and thus remand for retrial. In light of olir rulings on these issues, Defendant's
16 remaining arguments are moot.
17 BACKGROUND
18 	{2} 	The parties do not dispute the following facts. Defendant was charged in 2016
19 with misdemeanor aggravated battery against a household member without great
20 bodily harm, NMSA 1978, § 30-3-16(B) (2008, amended 2018) (Count 1), unlawful

1 taking of a motor vehicle, NMSA 1978, § 30-16D-1 (2009) (Count 2), and felony
2 aggravated battery against a household member with great bodily harm (Count 3).
3 Section 	30-3-16(C). 	On 	July 	11, 	2016, 	Steven 	Seeger 	(Seeger) 	entered 	his
4 appearance as defense counsel for Defendant. Seeger appeared with Defendant at his
5 arraignment on October 21, 2016. Three days later, the district court entered a notice
6 of hearing scheduling Defendant's case for a three-day jury trial starting March 14,
7 2017.
8 {3} 	On Friday, March 10, 2017, Seeger filed a -motion on behalf of Defendant
9 seeking a continuance of the jury trial on the basis that, among other things, the State
10 had filed its disclosures and witness list late. Specifically, the State had provided
11 	discovery the previous day in the form of a CD that Seeger had not yet had the chance
12 to review. Defendant, who by then had not disclosed his own trial witnesses, stated
13 	that to "force [Seeger] to go to trial on March 14, 2017 would deny the Defendant
14 effective assistance of counsel and thereby deny him his [Sixth] Amendment [right]
15 	to counsel." The parties appeared before the district court judge on the morning of
16 March 10, 2017 for a pretrial conference, at which time the judge denied the motion
17 for continuance. Seeger responded to the ruling by informing the court: "I will not
18 be ready, your honor. I will not participate in the trial. I will be present but [I will]
19 not participate." The judge said, "If that is true, then [Defendant] would have
20 excellent grounds 	for 	appeal 	on incompetency 	of counsel," 	to which 	Seeger
2

1 responded, "Absolutely. I will not participate." After the judge pointed out that the
2 trial date had been set for months and that Seeger had ample notice, the following
3 exchange took place:
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Judge: Well, Mr. Seeger, I've known you for years. I know you are an
extremely competent and diligent attorney and it is precisely because
of the potential arisal [sic] of contingencies such as you have just
described that notice of trial in these cases [is] sent out far in advance
of the date. My schedule cannot accommodate this case being placed
number one on next month's docket. It's very simple.
Seeger: I'm not gonna do a C-minus job on the trial on Tuesday.
Judge: Well, then I guess you'll have to do an F-minusjob and just sit
there. I don't know-I can't tell you how to run your business, Mr.
Seeger.
Seeger: That's my plan.
Judge: Well, that's not a good plan.
16 The district court suggested that Seeger raise any discovery issues by filing motions
17 in limine before trial.
. 18 	{4} 	On the morning of trial, Seeger renewed Defendant's motion to continue as
19 well as a motion for sanctions based on the State's late disclosures, which Seeger
20 had filed the day before. Seeger explained that he did not have time to listen to the
21 	CD because he spent the weekend attending the wake of a co-worker and facilitating
22 the reassignment of his co-worker's cases to other attorneys. The Stated responded
23 	that it did not come into possession of the CD until March 9, 2017, and stated for the
24 first time that it did not intend to use any of the information on the CD at trial.
3

1 Additionally, the State pointed out that its amended March 9, 2017 witness list did
2 not include any previously undisclosed witnesses. The judge denied Defendant's
3 motions to continue and for sanctions, telling Seeger, despite Seeger himself having
4 no role in the State's decision to provide a CD less than a week prior to trial that had
5 been set months before, that if Seeger felt he was being "deprived of information,
. 6 [he] should have filed the motion long before this" and that there was no showing of
7 prejudice based on the late disclosures. In response, Seeger reiterated that he was not
8 going to participate in the trial, and as the trial record demonstrates, he remained
9 steadfast in that decision. Indeed, our review of the record confirms that Seeger
10 played the most marginal of roles at trial: he did not participate in jury selection,
11 	give a substantive opening statement, cross-examine any of the State's witnesses,
12 call any witnesses on behalf of Defendant, move for a directed verdict, meaningfully
13 	participate in the submission of jury instructions, or give a closing argument. As the
14 following summary reflects, Seeger's active involvement during trial was limited
15 	and narrowly confined.
16 	{5} 	Seeger did not ask the venire any questions and replied "No comment" each
17 time the judge asked for his position on striking a potential juror. After the jury was
18 	sworn, 	Seeger moved for a mistrial, arguing that Defendant had been denied
19 effective assistance of counsel. The district court denied the motion, stating, "He has
20 not been denied effective assistance of counsel. He has been . . . refused any
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1 assistance of counsel. There's a world of difference there." The judge asked Seeger
2 to confirm "that you are not going to defend this man?" Seeger answered, "Correct.
3 I am not going to participate because I cannot provide effective assistance of
4 counsel." The trial continued and after the State's opening statement, the judge
5 turned to Seeger and said, "I ask you to remember, as an officer of the court, opening
6 statement is reserved to evidence that is going to be presented." After Seeger
7 responded, "I don't know what you mean," the judge explained, "I mean the weight
8 of your heart at the moment is of no consequence whatsoever to the duty the jury is
9 intended to perform today." Despite the court's admonition, Seeger focused his
10 opening statement not on the anticipated evidence, but on the Sixth Amendment of
11 	the United States Constitution and his client's right to counsel. The judge told Seeger
12 that his opening statement was improper and that he would not allow him to proceed.
13 	Seeger responded, "I have nothing further then." The judge instructed the jury to
14 ignore the "civics lesson that was presumptuously offered by Mr. Seeger."
15 	{6} 	The State proceeded to call two of its three witnesses during the morning
16 session. Seeger made no objections during the witnesses' direct examinations and
17 conducted no cross-examinations. After the lunch break, Seeger renewed his motion
18 	for a mistrial. He argued that he had looked at the State's late-disclosed CD and saw
19 that it contained statements from three witnesses-including the two that had
20 testified that morning-and Defendant. Seeger stated that he did not have time to
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1 listen to the CD or have it transcribed for use in cross-examination and voiced a
2 concern that it might contain information useful to his client's defense. Although the
3 State admitted the CD had been in the possession of an agent of the State before
4 March 9, 201 7, the district court nevertheless denied the mistrial motion because it
5 did not believe that Defendant had demonstrated prejudice.
6 {7} 	The State called one additional witness. During that witness's testimony,
7 Seeger made a single objection to the admission of an item of physical evidence,
8 which the district court sustained. Seeger made np other objections and conducted
9 no cross-examination of the witness. At the close -of the State's case, Seeger told the
10 court that he had hoped to call four or five witnesses but that he had neither disclosed
11 	nor subpoenaed them. Seeger did not move for a directed verdict or make any other
12 motions. Before releasing the jury for the day, the court informed the jury that the
13 	State had the burden of proof; that Defendant was not required to put on any
14 witnesses of his own; and that Defendant would not be calling any witnesses.
15 	{8} 	During the discussion about jury instructions, 	Seeger stated he had not
16 prepared any instructions and proceeded to express concern about the judge's bias
17 in the case. The judge responded, "I cannot help that Mr. Seeger. You seem to be
18 troubled by a number of things, namely your obligation to abide by your oath and
19 defend the people that you take as clients." The judge stated that he resented the
20 accusation of bias and encouraged Seeger to report him to the New Mexico Judicial
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1 Standards Commission if he believed he (the judge) was biased. At that point, Seeger
2 indicated that he would not oppose any of the instructions tendered by the State. The
3 discussion on jury instructions continued and Seeger asked about a step-down
4 instruction. The court noted that the charge of misdemeanor aggravated battery on a
5 household member without great bodily harm, § 30-3-16(B) was a lesser included
6 offense of the felony charge of aggravated battery on a household member with great
7 bodily harm,§ 30-3-16(C). As a result, the district court ruled that the misdemeanor
8 charge would be given as a step-down instruction rather than a separate count.
9 Besides inquiring about the step-down instruction, Seeger did not participate in the
10 discussion over jury instructions.
11 	{9} 	The next morning, Seeger again renewed his motion for a mistrial on the basis
12 	of ineffective assistance of counsel. The district court again denied the motion.
13 	Before closing arguments, the court reminded the jury, "Defendant has chosen not
14 to present a case, and that is his right. ... Whether or not [Defendant] presents any
15 	evidence, the burden always remains on the State[.]" The court also informed the
16 jury that it was optional for the parties to present closing arguments. During the
17 	State's closing, Seeger objected once, claiming that the prosecutor was expressing
18 	his personal opinion on the evidence. Seeger asked for a curative instruction, which
19 the court gave after sustaining the objection. When the State completed its closing
20 argument, the court asked Seeger if he wanted to "exercise the opportunity to argue
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1 the evidence that has been presented." Seeger stood up and began, "I think, given
2 the circumstances, I could not provide effective assistance ... " at which point the
3 judge stopped him saying, "Alright, that is not evidence, Mr. Seeger. If you don't
4 intend to argue the evidence, please return to your seat." The court then released the
5 jury for deliberations.
6 	{to} 	The jury acquitted Defendant of unlawful taking of a motor vehicle but found
7 him guilty of aggravated battery against a household member with great bodily
8 harm. See§ 30-3-16(C). Although Seeger did participate i~ the sentencing hearing,
9 he provided no response concerning his position on the order for a pre-sentence
10 report. Defendant was ultimately sentenced to the maximum term of three years in
11 	prison, followed by two years of parole. NMSA 1978, § 31-18-lS{A)(ll) (2016).
12 	Seeger did not respond to the request for approval of the judgment and order of
13 	commitment, despite having the proposed document provided to him both in person
14 and by email. Seeger timely filed a notice of appeal on Defendant's behalf on
15 	October 18, 2017. On November 3, 2017, and despite its earlier ruling that the
16 misdemeanor aggravated battery offense was a lesser included offense the district
17 court entered an amended judgment, adding a conviction for aggravated battery
18 	against a household member with no great bodily harm "as charged in Count 1 of
19 the Criminal Information . . . incorporated into Count 3 by the Court." Seeger
20 approved the amended judgment and sentence without objection.
8

DISCUSSION
1 {11} 	As relevant to our disposition of this appeal, Defendant argues that he was
2 denied his constitutional right to assistance of counsel and that the district judge's
3 conduct during trial should bar his retrial. We address each argument in tum.
4 Defendant Did Not Receive Effective Assistance of Counsel
5 {12} 	As we have noted, the State concedes that Defendant w~s denied his right to
6 assistance of counsel, and that reversal and remand for a new trial is warranted.
7 Although we are not bound by the State's concession, we conclude that under the
8 circumstance of this case, Defendant's convictions must be reversed. See State v.
9 	Guerra, 2012-NMSC-027, 19, 284 P.3d 1076 (stating that an appellate court is not
10 bound by the state's concession of an issue). Our review is de novo. See State v.
11 	Mosley, 2014-NMCA-094, 118, 335 P.3d 244 (stating that ineffective assistance of
12 counsel claims are reviewed de novo ).
13 	{13} 	Generally, an ineffective assistance of counsel claim is established when a
14 defendant shows "error by counsel and prejudice resulting from the error." State v.
15 	Grogan, 2007-NMSC-039, 111, 142 N.M. 107, 163 P.3d 494. Error is shown if the
16 "attorney's conduct fell below that of a reasonably competent attomey."Jd. (internal
17 quotation marks and citation omitted). While it is usually a defendant's burden to
18 	show both incompetence and prejudice, id., a defendant need not establish prejudice
19 in those cases where "circumstances that are so likely to prejudice the accused that
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1 the cost of litigating their effect in a particular case is unjustified." Id. 112 (quoting
2 	United States v. Cronic, 466 U.S. 648, 658 (1984)). Those circumstances in which
3 prejudice to 	the 	defendant can be presumed include: 	"(1) 	denial 	of counsel
4 altogether; 	(2) defense counsel's failure 	'to subject the prosecution's case to
5 meaningful adversarial testing'; and (3) when the accused is 'denied the right of
6 effective cross-examination.'" Id. 112 (citing Cronic, 466 U.S. at 659).
7 {14} 	Prior to the start of trial in this case, Seeger announced his intention to not
8 participate in the trial proceedings. Staying true to his word, Seeger abdicated his
9 role as an advocate by refusing to engage in jury selection, give an opening
10 statement, present a defense or call any witnesses, subject the State's witnesses to
11 	cross-examination, or give a closing argument on behalf of his client. We agree with
12 the district court that this was not a case of ineffective assistance of counsel but
13 	rather a case where "[Defendant] has been refused any assistance of counsel." After
14 all, 	Seeger's 	voluntary 	posture 	of 	determined 	inaction 	both 	precluded 	any
15 	"meaningful adversarial testing" of the State's evidence and denied Defendant the
16 right of effective cross-examination within the meaning of Grogan, 2007-NMSC-
17 039, 1 12, and Cronic, 466 U.S. at 659. In these circumstances, Seeger's conduct
18 rose to the level of a constructive denial of counsel sufficient to create a presumption
19 of prejudice. See Martin v. Rose, 744 F.2d 1245, 1250-52 (6th Cir. 1984 (concluding
20 that defense counsel's "bizarre and irresponsible stratagem" of "abandon[ing] all
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1 attempts to defend his client at trial" amounted to "constitutional error even without
2 any showing of prejudice"); see also United States v. Swanson, 943 F.2d 1070, 1074
3 (9th Cir. 1991) (concluding that defense counsel's concession during summation that
4 there was no reasonable doubt as to any of the disputed factual issues amounted to a
5 failure to subject the prosecution's case to meaningful adversarial testing and, thus,
6 a failure to provide effective assistance under Cronic).
7 	{15} 	Seeger's 	purposeful 	failure 	to 	participate 	in 	any 	meaningful 	way 	in
8 Defendant's trial represents a constitutional violation under both the United States
9 and New Mexico Constitutions. See U.S. Const. amend. VI (guaranteeing a right to
10 assistance of counsel in criminal cases); N.M. Const. art. II, § 14 (same), thus
11 	compelling us to vacate Defendant's convictions and remand for a new trial.·
12 {16} 	We pause here to address the unusual and unseemly situation occasioned by
13 	Seeger' s adamant refusal to provide his client with a defense in a felony trial and the
14 district judge's decision to proceed with such a trial in circumstances where some
15 	form of guilty verdict was not only a near certainty, but had no realistic chance of
16 being upheld on appeal. First, we address Seeger' s refusal to provide his client with
17 a defense, conduct that violated Seeger's constitutional responsibility to his client
18 	and his duty to the tribunal for which, as a licensed attorney, he serves as an officer.
19 Stated simply, 	attorneys 	in New Mexico 	are not 	empowered with decisional
20 autonomy regarding when trials commence and when they do not commence.
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1 District courts are. Second, we feel obliged to provide our district courts with some
2 guidance as to how to respond to situations like this in the future. A district judge is
3 not helpless when faced with an attorney threatening to withdraw from participation
4 in a criminal trial, but has various options to address the situation. For instance, the
5 district court can order new counsel to represent the defendant. See Sanders v.
6 Rosenberg, 1997-NMSC-002,, 9, 122 N.M. 692, 930 P.2d 1144 ("If a compelling
7 reason exists that supports the disqualification of counsel, a court may reject that
8 party's chosen counsel."). Or it can impose a sanction on the culpable attorney while
9 at the same time granting a continuance to give the defendant and his or her attorney
10 time to prepare for trial. 	If, 	in that circumstance, the attorney still refuses to
11 	participate in the face of a clear order to do so, the court can invoke its contempt
12 powers against the obstructionist attorney, see NMSA 1978, § 34-1-2 (1851). While
13 	we understand the district court's concerns over the efficient administration of its
14 docket, forcing a criminal defendant to go to trial with an attorney who refuses to
15 	participate itself hinders, rather than promotes judicial economy by wasting scarce
16 court resources while all but ensuring a violation of the defendant's constitutional
17 rights. See Grogan, 2007-NMSC-03Q, , 	10 ("[I]n cases of obvious ineffective
18 assistance of counsel, the trial judge has the duty to maintain the integrity of the
19 court, and thus inquire into the representation.").
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I
1 Retrial is Not Barred in this Case
2 	{17} 	Defendant argues that the district court judge's conduct bars retrial "under
3 principles of double jeopardy." A double jeopardy challenge is a constitutional
4 question oflaw, which we review de novo. See State v. Andazola, 2003-NMCA-146,
5 1 14, 134 N.M. 710, 82 P.3d 77. The New Mexico Constitution, like the Federal
6 Constitution, prevents any person from being "twice put in jeopardy for the same
7 offense[.]" N.M. Const. art. II, § 15; see U.S. Const. amend. V. Double jeopardy
8 may bar retrial on the basis of official misconduct during the initial trial. See State
9 v. Breit, 1996-NMSC-067, 132, 122 N.M. 655, 930 P.2d 792. Defendant urges us
10 to apply the three-part test announced by our Supreme Court in Breit, which bars
11 	retrial under Article II, Section 15, of the New Mexico Constitution
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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, and if the official knows that the conduct is
improper and prejudicial, and if the official either intends to provoke a
mistrial or acts in willful disregard of the resulting mistrial, retrial, or
reversal.
18 Breit, 1996-NMSC-067, 132.
19 	{18} 	Although Defendant acknowledges that our appellate courts have applied
20 Breit only in cases of prosecutorial misconduct, he nonetheless urges this Court to
21 	extend Breit to the judge's actions in this matter. Defendant contends that the jurors
22 saw "tense, fraught interactions between [the judge] and Mr. Seeger. Over and over,
23 	the jurors saw Mr. Seeger decline to ask questions. The jurors saw Mr. Seeger
13

1 attempt to address them, and they saw the way [the judge] stopped him." Further,
2 Defendant asserts, "[b]y making dismissive comments toward the defense in the
3 presence of the jury, [the judge] violated his duty to appear impartial." And by
4 forcing the parties to continue with the trial in light of Seeger' s declaration of non-
5 participation, Defendant argues, the judge knew Defendant's rights were being
6 violated and acted in "willful disregard of the reversal that was likely to result."
7 Defendant contends these actions satisfy all three prongs of the Breit test. We
8 disagree.
9 	{19} 	In Breit, our Supreme Court characterized the proceedings as "a trial out of
10 control" resulting from the "pervasive, incessant, and outrageous nature of the
11 	prosecutor's misconduct." Id. ,r,r 37, 41 (internal quotation marks omitted). From
12 opening statements to closing arguments, the prosecutor's misconduct was apparent.
13 Id. 	,r,r 41-43. He attempted to inflame the jury during opening arguments with
14 	irrelevant allegations and exaggerated claims that no evidence could ever support.
15 Id. ,r 41. He reacted with "sarcasm and scorn" toward opposing counsel and the
16 district court whenever objections were raised and sustained. Id. Even after being
17 admonished by the court, the prosecutor attempted to· solicit irrelevant comments
18 	from the defendant. Id. ,r 42. He impliedly threatened opposing counsel and made
19 "belligerent remarks." Id. 	He displayed "sarcasm, sneering, rolling of eyes and
20 exaggerated expressions" t~roughout the trial in front of the jury. Id. 	(internal
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1 quotation marks omitted). During closing arguments, the prosecutor attacked the
2 defendant's election to exercise his rights to counsel and to remain silent, and
3 suggested that opposing counsel had lied and collaborated with the defendant to
4 fabricate a defense. Id. ,r 43. In reversing defendant's convictions and barring further
5 prosecution of the underlying first-degree murder and related charges, our Supreme
6 Court noted, "As isolated instances, most of these infractions would be unlikely to
7 raise the bar to retrial. But in this case, . . . the misconduct was unrelenting and
8 pervasive .... The cumulative effect [of which] was to deny the defendant a fair
9 trial." Id. ,r 45
10 	{20} 	Breit has no bearing on this case. Even if we were to extend Breit to instances
11 	of judicial misconduct, the district court judge here acted appropriately and appeared
12 	impartial throughout the proceedings. This 	Court listened to the entire audio
13 	recording of the trial, and there was no instance in which the district court judge's
14 tone of voice sounded inappropriate or improper. The judge did not raise his voice,
15 	and he kept his commentary on Seeger's actions to a minimum in front of the jury.
16 The judge repeatedly gave Seeger the opportunity to change course and actively
17 participate in the trial proceedings by, among other things, asking Seeger if he
18 	wished to address the venire during jury selection, inquiring about Seeger's position
19 regarding potential jurors, giving him an opportunity to make an opening statement,
20 and asking if he wanted to cross-examine witnesses. Seeger declined each of the
15

1 judge's invitations, and responded by saying "No comment" during jury selection,
2 improperly commenting on the right to counsel during opening statement, and
3 refusing to participate in cross-examination. When the judge asked Seeger if he
4 wanted to give a closing statement, Seeger again brought up the right to counsel
5 before being stopped. We cannot say that the judge's comments were "dismissive"
6 or appeared biased. Rather, the judge was responding to Seeger's repeated attempts
7 to argue that he was ineffective as counsel, a legal matter wholly inappropriate for
8 the jury to consider. Moreover, the judge made an effort to avoid interrupting Seeger
9 by reminding him before opening and closing statements to confine himself to
. 10 discussing the evidence. Additionally, the judge attempted to mitigate Seeger's
11 	inaction in the eyes of the jury multiple times by reminding them that the State had
12 the burden of proof and that Defendant was not required to put on any witnesses or
13 	make a closing argument. Nor did the judge act in "willful disregard" of an obvious
14 reversal. To the contrary, the district court made every attempt to have Seeger
15 participate and defend his client, all to no avail. Given these circumstances, we
16 decline Defendant's invitation to extend Breit to judicial conduct and hold that
17 double jeopardy does not bar retrial in this case.
· 18 	CONCLUSION
19 	{21} 	For the foregoing reasons, we reverse Defendant's convictions and remand
20 for retrial.
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1|{22} IT IS SO ORDERED.
2 3
JurdanSauj
LINDA M. VVANZI, Judge
4|WE CONCUR:
5
6|
J. MILES HANISEE, Judge
7 Briana Damora
8 BRIANA H. ZAMORA, Judge
17