 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                   NO. 29,220

10 JACOB MILLIGAN,

11          Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 William C. Birdsall, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant

21                                 MEMORANDUM OPINION

22 KENNEDY, Judge.

23          Jacob Milligan (Defendant) appeals from the district court’s order denying his

24 motion for entry of acquittal. [RP 156] Defendant raises two double jeopardy issues,

25 contending that (1) the mistrial in Defendant’s first trial was a result of the wilful
 1 disregard of the State for the district court’s order and Defendant’s rights, and,

 2 therefore, further prosecution violates double jeopardy; and (2) Defendant was

 3 impliedly acquitted in the second trial of the charges of attempted first and second

 4 degree murder and further prosecution of those charges would violate double

 5 jeopardy. [DS 4] This Court issued two calendar notices that proposed summary

 6 affirmance. [Ct. App. File, CN1, CN2] Defendant has filed a memorandum in

 7 opposition to the second calendar notice. [2nd MIO] After due consideration, we

 8 affirm.

 9 DISCUSSION

10 Prosecutorial Misconduct

11        In the second memorandum, Defendant continues to disagree with this Court’s

12 proposed summary affirmance on this issue. [2nd MIO 1-4] Defendant provides no

13 additional facts or legal authorities, however, that persuade us that the analysis set

14 forth in the second calendar notice was incorrect or inappropriate. State v. Ibarra, 116

15 N.M. 486, 489, 864 P.2d 302, 305 (Ct. App. 1993) (“A party opposing summary

16 disposition is required to come forward and specifically point out errors in fact and/or

17 law.”). Accordingly, we affirm the district court on this issue.

18        Article II, Section 15 of the New Mexico Constitution bars a defendant’s retrial

19 under double jeopardy principles when (1) improper official conduct is so unfairly


                                              2
 1 prejudicial to the defendant that it cannot be cured by means short of a mistrial or a

 2 motion for a new trial; (2) the official knows that the conduct is improper and

 3 prejudicial; and (3) the official either intends to provoke a mistrial or acts in wilful

 4 disregard of the resulting mistrial, retrial, or reversal. State v. Breit, 1996-NMSC-067,

 5 ¶ 32, 122 N.M. 655, 930 P.2d 792. In State v. McClaugherty, our Supreme Court set

 6 forth the appellate standard of review of a prosecutorial misconduct claim as a mixed

 7 question of law and fact. 2008-NMSC-044, ¶ 39, 144 N.M. 483, 188 P.3d 1234. “The

 8 appellate court will defer to the district court when it has made findings of fact that are

 9 supported by substantial evidence and reviews de novo the district court’s application

10 of the law to the facts.” Id. In examining whether “the prosecutor’s conduct amounts

11 to “wilful disregard of a resulting mistrial, retrial, or reversal, the appellate court will

12 carefully examine the prosecutor’s conduct in light of the totality of the circumstances

13 of the trial.” Id. ¶ 58 (internal quotation marks and citation omitted).

14         “Wilful disregard” means “a conscious and purposeful decision by the

15 prosecutor to dismiss any concern that his or her conduct may lead to a mistrial or

16 reversal, while emphasizing that the prosecutor is actually aware, or is presumed to

17 be aware, of the potential consequences of his or her actions.” Id. (internal quotation

18 marks and citation omitted). “The presumption that the prosecutor is aware of such

19 consequences is established by the prosecutor’s egregious conduct, not necessarily


                                                3
 1 from an inference of a conscious and purposeful decision to bring about a mistrial.”

 2 Id. In McClaugherty, the Supreme Court demonstrated the application of each prong

 3 of the Breit test, concluding that double jeopardy principles barred retrial of the

 4 defendant in that case.

 5 A.     The First Breit Prong: Whether the Improper Official Conduct was So
 6        Unfairly Prejudicial to Defendant That it Cannot be Cured by Any
 7        Means Short of a Mistrial or a Motion for a New Trial

 8        In McClaugherty, the prosecutor improperly introduced material facts that were

 9 not in evidence and that did not exist through his cross-examination of the defendant.

10 Id. ¶¶ 41-42. These facts were statements from witnesses that the prosecutor did not

11 produce at trial, stating the defendant had confessed to shooting and then bragged

12 about it. Id. ¶ 41. As such, the prosecutor’s reference to these statements was, at the

13 very least, a violation of the hearsay rule and not harmless error. Id. ¶ 42. The

14 Supreme Court held that the first prong of the Breit test was met in McClaugherty

15 because the prosecutor’s “conduct was so unfairly prejudicial to [the d]efendant that

16 it could not be cured short of a new trial.” Id.

17        In this case, Defendant’s first memorandum indicates that the prosecutor

18 acknowledged that he failed to inform Detective Sgt. Perez not to mention that

19 defense witnesses were southside gang members in accordance with the district

20 court’s limiting instructions. [MIO 2] The prosecutor explained that he had intended


                                              4
 1 the detective would testify about the photographs of the victim’s wounds, but then

 2 decided at the last minute to broach other topics. [Id.] Because the officer’s

 3 statements allowed the jury to know that the defense witnesses were gang members,

 4 Defendant was unfairly prejudiced, and, it appears that the prejudice could not be

 5 cured by any means short of a mistrial. We hold that the first Breit prong is met in

 6 this case.

 7 B.     The Second Breit Prong: Whether the Official Knew That the Conduct was
 8        Improper or Prejudicial

 9        In McClaugherty, the Supreme Court held that there was no testimony or

10 evidence to support the district court’s factual finding that the prosecutor committed

11 the conduct at issue because he was an inexperienced lawyer, a naive practitioner, or

12 a poor lawyer. Id. ¶ 47. Moreover, as in Breit, in McClaugherty, “[t]here [was] no

13 suggestion in the record that the prosecutor acted out of error, or negligence, or

14 mistake.” Id. ¶ 48. As such, “[t]he law clearly presume[d] that [the prosecutor] knew

15 that his cross-examination of [the d]efendant using either inadmissible hearsay or facts

16 not in evidence, where [the prosecutor] had no intention of trying to gain the proper

17 admission of that material, was improper.” Id. ¶ 57. The second prong of the Breit

18 test was met in McClaugherty. Id.

19        In this case, the prosecutor was questioning the officer on direct examination

20 about the victim’s wounds. [RP 47W] The prosecutor did not make allusions to the

                                              5
 1 defense witnesses’ gang affiliations nor elicit the officer’s improper response. The

 2 district court judge expressly determined that the prosecutor’s actions were “a

 3 mistake” or “inadvertent” and denied Defendant’s double jeopardy motion on that

 4 basis. [RP 51, 62B, 56] As such, unlike in McClaugherty, in this case there is a

 5 “suggestion in the record that the prosecutor acted out of error, or negligence, or

 6 mistake.” McClaugherty, 2008-NMSC-044, ¶ 48. We hold that the second Breit

 7 prong is not met in this case.

 8 C.     The Third Breit Prong: Whether the Official Intended to Provoke a
 9        Mistrial or Acted in Wilful Disregard of the Resulting Mistrial,
10        Retrial, or Reversal

11        In McClaugherty, while the prosecutor engaged in a single incident of

12 misconduct, the conduct constituted the “introduction of nonexistent evidence at

13 worst, or at best, inadmissible hearsay through his cross-examination questions.” Id.

14 ¶ 60. As in Breit, the prosecutor in McClaugherty essentially acted to avoid “an

15 acquittal at any cost.” Id. ¶ 59 (internal quotation marks and citation omitted). In

16 McClaugherty, moreover, the defendant pointed out that “the misconduct occurred

17 shortly before the end of the trial, when the weakness of the [s]tate’s case was

18 apparent.” Id. ¶ 60. The third Breit prong was met in McClaugherty.

19        In this case, however, as mentioned above, the district court judge expressly

20 determined that the prosecutor’s actions were “a mistake” or “inadvertent.” [RP 51,


                                             6
 1 62B, 56] Under the circumstances, we cannot say that the prosecutor intended to

 2 provoke a mistrial or acted in wilful disregard of the resulting mistrial, retrial or

 3 reversal in this case. We hold, therefore, that the third Breit prong was not met in this

 4 case.

 5         We affirm the district court’s decision to declare a mistrial but to allow

 6 Defendant to be retried.

 7 Implied Acquittal

 8         In the second memorandum, Defendant continues to argue that retrial on the

 9 greater charges of attempted first degree murder and the lesser-included offense of

10 attempted second degree murder would violate his double jeopardy rights. [2nd MIO

11 4-5] Defendant relies on the arguments made in the first memorandum on this issue,

12 however, and he raises no new facts or legal authorities that persuade us that the

13 analysis in the second calendar notice was inappropriate or incorrect. Ibarra, 116

14 N.M. at 489, 864 P.2d at 305. Accordingly, we affirm.

15         Double jeopardy bars successive prosecutions of all degrees of the offense

16 following an acquittal of any degree. State v. Fielder, 2005-NMCA-108, ¶ 11, 138

17 N.M. 244, 118 P.3d 752. In order to determine the highest degree of the offense upon

18 which a defendant may be retried without violating double jeopardy, the district court

19 judge polls the jury as provided in Rule 5-611(D) NMRA. Rule 5-611(D) provides


                                               7
 1 that,

 2         [i]f the jury has been instructed on one or more lesser included offenses,
 3         and the jury cannot unanimously agree upon any of the offenses
 4         submitted, the court shall poll the jury by inquiring as to each degree of
 5         the offense upon which the jury has been instructed beginning with the
 6         highest degree and, in descending order, inquiring as to each lesser
 7         degree until the court has determined at what level of the offense the jury
 8         has disagreed.

 9 Whether the district court was required to poll the jury in regard to its deliberations

10 on each of the lesser included offenses, is an issue of law that we review de novo.

11 State v. Garcia, 2005-NMCA-042, ¶ 10, 137 N.M. 315, 110 P.3d 531.

12         In this case, the jury was instructed on attempted first degree murder, attempted

13 second degree murder, and voluntary manslaughter. [RP 122, 124, 127] Defendant

14 argues that the record is silent as to which, if any, specific charge the jury reached an

15 impasse. Defendant contends this implies he was acquitted of all but the lowest of the

16 submitted charges. [RP 148] We disagree.

17         The record proper indicates that the district court judge did inquire of the jurors,

18 as follows: “Is there no reasonable probability that you will be able to agree upon a

19 unanimous verdict in some or all of the counts?” [RP 117] The jury foreman

20 responded on behalf of the jurors, “No—on all counts.” [Id.] The jury foreman also

21 responded, “We feel we’ve reached an unresolvable deadlock.” [RP 118] The

22 memorandum indicates that the district court judge also asked the jury for a show of


                                                8
 1 hands and then declared a mistrial. [MIO 3]

 2        As we stated in the first calendar notice, the district court is not required to

 3 continue its inquiry into the jury’s deliberations regarding lesser offenses when the

 4 court has determined, through its inquiry, that the jury was unable to reach agreement

 5 as to a greater offense. Fielder, 2005-NMCA-108, ¶ 14. In this case, the district

 6 court’s inquiry, including of the foreman and the jurors by show of hands, indicated

 7 that the jury was unable to reach agreement as to any of the offenses, including both

 8 of the offenses greater than voluntary manslaughter.

 9        We hold, therefore, that there was manifest necessity to declare a mistrial as to

10 all degrees of the offense charged. Under the circumstances, therefore, Defendant can

11 be retried on all degrees of the charges without violating his double jeopardy rights.

12        IT IS SO ORDERED.

13                                         ___________________________________
14                                         RODERICK T. KENNEDY, Judge

15 WE CONCUR:



16 ___________________________
17 CELIA FOY CASTILLO, Judge



18 ___________________________
19 ROBERT E. ROBLES, Judge

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