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After remand to the district court, Defendant's new counsel filed a motion to bar retrial pursuant to State v. The State explained that it sought to introduce “the truth” of what happened at trial by calling the prosecutor “to defend himself against the Court findings in the [O]rder of [D]ismissal” and to “explain his actions to the Court.” At the hearing on both of the State's motions, defense counsel agreed to the dismissal of the appeal but argued, inter alia, that NMSA 1978, Section 39-1-1 (1917), prohibited the district court from reopening the hearing because it requires that a district court act on a post-judgment motion within a certain time frame, and the time to act had expired. Defense counsel determined that the statements did not contain any references to Defendant “bragging” about the shooting and did not include a statement from Defendant's sister that Defendant “admitted he shot” the victim and presented a motion to the district court to bar further prosecution. The district court set the matter for an evidentiary hearing. The Court of Appeals clarified that although Section 39-1-1 has been discussed in the context of jurisdiction, by its language and history, ultimately, it is the constitution that grants the district court its jurisdiction. At the close of evidence from these hearings, the State argued that the trial objection to Montoya's cross-examination of Defendant had been “improper impeachment,” not an objection that Montoya had asked the question in “bad faith,” and that Montoya's “good faith” basis for the questions he asked came from all the evidence against Defendant of which Montoya was aware of at the time he posed the questions. Q: You had quite a bit of trial experience before then? Defendant concludes that Montoya knew or was presumed to have known that his use of hearsay and “false characterization” of the police statements during cross-examination were improper and prejudicial and that Breit specifically rejects a district court's application of an “inexperience” rationale. Prosecutor side, we don't cross the line, we can't. App.1991) (“Unless clearly erroneous or deficient, findings of the trial court will be construed so as to uphold a judgment rather than to reverse it.”).b. See Rule 11-801(D)(2)(a) (excluding admissions by a party-opponent from the hearsay rule). We rely on the transcript of proceedings to review the testimony at trial and our published opinions represent the sum of that work. App.1990), the Court of Appeals imposed a strict prohibition against asking the defendant if another witness is mistaken or lying and established as standard that such behavior is categorically improper. In Huff, the Court of Appeals found that the prosecutor acted in “willful disregard” of a resulting mistrial, but concluded that double jeopardy did not bar retrial because the first two prongs of the Breit test were not met. Steele, 91 F.3d 1046, 1051 (7th Cir.1996) (brandishing an unidentified piece of paper during cross-examination to insinuate he had a document other than the one in his hand when he knew his insinuation was untrue was a “reprehensible” tactic although harmless when there was a “plethora” of evidence against defendant); see also United States v. The State timely appealed the dismissal to the Court of Appeals but later filed two motions in the district court: one to dismiss the appeal and a second to reopen the hearing on the motion to bar reprosecution to allow the presentation of additional evidence. Events After Our Remand to District Court After we remanded the case, Defendant's new defense counsel received and reviewed the police statements of Tucker and Goen that had been in Montoya's possession during his impeachment of Defendant at trial. She remembered being present at that interview with Montoya and Goen, it took place in Montoya's “individual room” lasting “not more than an hour”, and no one else was in Montoya's office during the interview. On direct examination, Montoya told the trial court he has “a couple of masters' degrees, [and] a law degree,” that as an attorney for the District Attorney's office in Albuquerque he “entered every courtroom in this district court and metro court” and “went from metro services to white collar crimes to narcotics to violent crime division,” and that he was the lead prosecutor on the Mc Claugherty case “[a]s well as other murder trials.” He also testified that “[prosecutors] [u]phold the constitution to make sure that [Defendant] has the rights of that constitution and all [it stands] for. A prosecutor's belief regarding their own conduct is irrelevant because “[r]are are the instances of misconduct that are not violations of rules that every legal professional, no matter how inexperienced, is charged with knowing.” Breit, 1996-NMSC-067, ¶ 33, 122 N. An opposing party may introduce out-of-court statements made by its opponent under the theory that the declarant party is in court and has the opportunity to deny or explain such statements, 5 Weinstein & Berger, supra, § 801.30[1][a], at 801-44, but the admission must be the party's own out-of-court statement, not statements made by a third party. At the reopened hearing, the State further argued that it was “a shame that the Supreme Court had to step in and overrule the jury on this matter ․ because they did not hear the testimony.” This also troubles us. It is an enumerated duty of a juror to determine the weight to give to each witness' testimony. Even though Montoya stated he was neither familiar with nor believed in the existence of such a rule, he should have been able to deduce that cross-examining a witness by introducing statements that he did not intend to admit into evidence at trial and asking the witness on the stand to comment on the veracity of those statements was improper since the only evidence of the statements was his own questioning. Holding a piece of paper purporting to contain a witness's statement and then failing to call its declarant as a witness has been called “reprehensible.” United States v.Do your best to preserve any evidence related to the incident so that campus authorities have as much information as possible.Evidence may range from bruises and torn clothing to text messages, emails and screen captures of social media site such as Facebook and Twitter.The girl was at a party at Defendant's apartment, and Defendant took umbrage when he was told of Solisz's aggression. Shots fired from Defendant's group fatally wounded Solisz and injured Martinez. During the subsequent bench conference, defense counsel argued to the court: Defense: He's trying to impeach him with hearsay that's never been admitted into evidence.[Montoya]: Inconsistent statements of admission. In the course of cross-examining defendant Charles I. Defendant appealed these conclusions to the Court of Appeals, which affirmed the district court. The appellate court will defer to the district court when it has made findings of fact that are supported by substantial evidence and reviews de novo the district court's application of the law to the facts. At the conclusion of the additional evidence and Montoya's testimony at the hearings on the motion to reopen, the trial court adhered to its original ruling on this issue. Montoya, in his cross-examination of Defendant, referred to two specific statements given by Goen and Tucker that the State has failed to prove ever existed. Considering the totality of circumstances, we agree with the initial conclusion of the district court and the Court of Appeals' dissent that Montoya's misconduct was willful. Moreover, unlike the State's interest in a lawful conviction, which could be vindicated upon appeal after a second trial, if the accused is acquitted at a second trial, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. In barring a retrial in Breit we relied on Justice Douglas's explanation of the purpose of the double jeopardy clause, and recall his eloquence now: I read the Double Jeopardy Clause as applying a strict standard. Ed.2d 901 (1961) (Douglas, J., dissenting) (quoted authority omitted). We announced that, to evoke a bar to retrial under our double jeopardy clause, the State's misconduct must manifest a “willful disregard” of the defendant's right to a fair trial. 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. Defendant and his friend Rodrigo Dominguez argued with Solisz on the telephone, and eventually Solisz agreed to bring his friends to a fight where Defendant and his friends would defend the girl from the disrespect. Solisz arrived with his friends, Vincent Martinez and Eloy Sandoval. The police determined that the fatal shot had come from a handgun; however, they recovered only one handgun and they could not determine if that gun had fired the fatal shot. Coriz testified for the State at Defendant's trial and was the only witness to identify Defendant as one of the young men who fired a gun on the night of the murder. Court: Do we have statements from these people that say something opposite to what he's saying? Mc Claugherty at trial in this matter, Assistant District Attorney Kenny Montoya questioned Mr. Montoya grossly misrepresented the content of those statements.2. Montoya's misconduct at the time, it would have granted a mistrial.3. Montoya's misconduct was so unfairly prejudicial to Mr. Montoya acted in willful disregard of the potential consequences of his misconduct. If the State's explanation for Montoya's cross-examination questions is that Montoya was actually relying on other material in support of his questions, it was incumbent on the State to prove the existence of such material. In sum, the State requested that the hearing on the motion to bar further prosecution be reopened to articulate the bases for Montoya's trial conduct. Montoya's misconduct meets the third prong of a Breit analysis. In Day we concluded 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.” 94 N. The prohibition is not against being twice punished, but against being twice put in jeopardy. The prosecutorial misconduct in this case can be described as a single event in front of the jury that, alone and isolated, completely denied this Defendant the due process of law to which he is afforded through our state and federal constitutions. CNM does adhere to FERPA guidelines regarding confidentiality of student information and records.CNM can release information if necessary in situations of safety to self or others.

The Dean of Students will work hard to insure your safety and will assist you in arranging temporary remedies that may be appropriate to your situation such as working with faculty to manage missed classwork, changing class sections or arranging for administrative services to be provided in an alternate way.

The Dean of Students office is committed to providing students with an environment that is a safe as possible, including safety from discrimination based on gender, including sexual harassment and sexual violence.

The Office will act as swiftly as circumstances permit when sexual misconduct is reported to protect the safety of the reporting person and the educational environment while respecting the due process rights of the accused student.

Coriz also testified that after he, Defendant and Dominguez returned to Defendant's apartment, he heard Defendant tell his sister that they “went and shot at some people.” After the State rested, defense counsel called Defendant to the stand, where he was the last witness to testify. Montoya's description of these witness statements during cross-examination became the subject of Defendant's first appeal to this Court. On cross-examination, Montoya asked Defendant if he told his sister and his roommate what happened that night. Montoya continued to question Defendant while holding papers in his hand: Q: Is that all you told them? ” You're assuming facts not in evidence, so I'm going to sustain the objection on that particular ground, okay? [Defense counsel] has had the opportunity to interview her. The day after the motions were filed, the district court scheduled a hearing in district court on both of the State's motions. However, instead of presenting both Goen and Tucker to testify themselves that they made the statements in question, the State chose to rely solely on Montoya's explanation. 415, 418, 631 P.2d 321, 324 (1981), we pointed out that “[a] prosecutor who cross-examines in the form of leading questions, which he has a right to do, is the witness who testifies before the jury, not the defendant. This analysis applies to the alleged Goen interview as well. at 144, 870 P.2d at 106 (deferring to the district court when it has made findings of fact that are supported by substantial evidence). Defendant has established that Montoya's misconduct satisfies the first prong of a Breit analysis. Montoya did not know or can be presumed not to have known that the conduct was improper and prejudicial” must be accorded deference by this Court pursuant to State v. In neither is there a breakdown in judicial machinery such as happens when the judge is stricken, or a juror has been discovered to be disqualified to sit, or when it is impossible or impractical to hold a trial at the time and place set․ The policy of the Bill of Rights is to make rare indeed the occasions when the citizen can for the same offense be required to run the gauntlet [sic] twice. This case is remanded to the district court for further proceedings consistent with this Opinion. Dominguez was convicted of voluntary manslaughter and other crimes.

During Defendant's cross-examination, Montoya repeated statements he claimed were contained in witness statements to the police and drew a hearsay objection from defense counsel. Defendant answered: “I had told them, yes, I was there and I ran.” Mc Claugherty I, 2003-NMSC-006, ¶ 11, 133 N. [Montoya] then returned to the cross-examination by asking Defendant, “[s]ir, would it surprise you to hear that your sister, Sarah Tucker, gave a statement to the police 6/19/99, the day after or the day, that morning, that said that you admitted to her that you shot-.” At this point defense counsel objected again. Court: The question that's being asked is whether or not he agrees with this or not is not-I mean because this person can always be brought in to explain it, so I'm going to allow him to proceed and allow him to ask the question, so I'm going to overrule the objection.[Montoya] then continued to question Defendant: Q: Do you remember the question? Before the hearing on the merits of these motions, Defendant filed a motion in the Court of Appeals to dismiss the State's pending appeal because the State had failed to timely file a docketing statement. This explanation was, in large part, dependant upon the alleged interview with Goen. The questions asked [in this case] were equivalent of testimony by the prosecutor․” Here, when we reversed Defendant's convictions and remanded for a new trial, we explained that the State could have gained the admission of the Goen and Tucker statements: A proper way to conduct the impeachment would have been for the State to ask Defendant if he told them that he shot a gun that night. The State is incorrect that the additional quantum of hearsay, the Goen interview material, somehow makes any of the hearsay material admissible through Montoya. This is also consistent with our analysis and holding in Mc Claugherty I, that the trial court abused its discretion in permitting the prosecutor to refer to the statements that Tucker and Goen allegedly made to the police without calling them to testify to those remarks, and the reference to these statements, at the very least, violated the hearsay rule and was not harmless. The risk of judicial arbitrariness rests where, in my view, the Constitution puts it-on the Government.

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