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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                   NO. 30,251

 5 RONNIE YARBROUGH

 6          Defendant-Appellant,


 7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
 8 Robert S. Orlik, District Judge

 9   Gary King, Attorney General
10   Santa Fe, NM
11   M. Anne Kelly, Assistant Attorney General
12   Albuquerque, NM

13 for Appellee

14   Jacqueline L. Cooper, Chief Public Defender
15   Santa Fe, NM
16   Vicki W. Zelle, Assistant Appellate Defender
17   Albuquerque, NM

18 for Appellant

19                                 MEMORANDUM OPINION
 1 GARCIA, Judge.

 2        Defendant was accused of first-offense driving while intoxicated (DWI),

 3 contrary to NMSA 1978, § 66-8-102(A) (2008) (amended 2010), and driving without

 4 a license, contrary to NMSA 1978, § 66-5-2 (2007). He initially faced charges in

 5 magistrate court but was ultimately convicted of DWI in a bench trial before the

 6 district court. Defendant appeals his conviction arguing that the district court trial

 7 violated his right to be free from double jeopardy, and the State purposefully and

 8 vindictively attempted to deprive Defendant of his “vested” right to jury trial.

 9 Defendant asks this Court to reverse his conviction and dismiss his charges, or honor

10 his right to a jury trial. We disagree and affirm Defendant’s DWI conviction.

11 BACKGROUND

12        On January 6, 2009, the date set for jury selection in the magistrate court, the

13 State moved for mistrial during its voir dire of the jury venire. The magistrate court

14 is not a court of record, and the record on appeal is undeveloped as to the magistrate

15 court proceedings. It appears as though defense counsel objected to many of the

16 prosecutor’s statements and questions during voir dire, and the State believed that a

17 mistrial was necessary because the defense counsel’s objections had prejudiced the

18 jury against Defendant. It also appears that defense counsel initially objected to a

19 mistrial, but Defendant instructed his counsel to inform the magistrate court that he


                                              2
 1 would not oppose the State’s motion because he did not want to risk conviction if the

 2 jury had been tainted. The magistrate judge’s handwritten notes indicate that

 3 Defendant also believed that the jury panel was prejudiced. The magistrate court

 4 granted the State’s motion for mistrial on the grounds of manifest necessity. The State

 5 filed a criminal information in the district court before the magistrate court officially

 6 closed the case. The magistrate court closed the case on February 10, 2009.

 7 Defendant was arraigned on February 13, 2009.

 8        Trial was set for June 29, 2009, with district court Judge Orlik presiding. In

 9 May, the parties appeared before the district court for a pretrial conference. At that

10 time, the State asserted that the case would be quick and simple for the judge to decide

11 and requested the judge use his discretion to grant a bench trial in this case. In

12 response, Defendant asserted that if the case was as simple as the State claimed, then

13 the State should dismiss the case outright. Defendant also asserted that if the State

14 chose to proceed, then he had a right to a jury trial. The judge denied the State’s

15 request, stating that Defendant is entitled to a jury trial at his request.

16        On June 26, 2009, the parties again appeared in front of Judge Orlik for two

17 defense motions regarding discovery and a continuance. At that time, the State

18 asserted that it would object to a continuance unless Defendant was willing to proceed

19 with a bench trial. The State expressed its belief that the case would be “a ten-minute


                                                3
 1 hearing,” and that the interest of justice would better be served with a bench trial. The

 2 prosecutor argued that it could convince “anybody, anyplace, anywhere,” that a

 3 defendant was impaired to the slightest degree, but he likely could not convince a

 4 judge. The State also informed the court that it had asked then-presiding chief district

 5 court judge, Judge Hartley, to testify as to the appropriateness of a bench trial. The

 6 district court heard testimony from Judge Hartley regarding the cost of impaneling a

 7 jury and the discretionary nature of jury trials when a defendant faces a maximum

 8 sentence of less than a year. Judge Hartley also testified that it was his practice to

 9 conduct bench trials when a jury trial was not mandatory. Judge Orlik responded to

10 Judge Hartley’s testimony by noting that he was more concerned with the

11 constitutional requirement for jury trials than finances. He also explained that, as he

12 understood the requirement, a jury trial was not mandatory for cases involving less

13 than a year of incarceration. He asked Judge Hartley if he agreed. Judge Hartley

14 expressed his concurrence and elaborated that he did not believe that there was a

15 requirement for a jury trial in minor criminal matters.

16        Defense counsel responded with a brief recitation of the case’s procedural

17 posture. After listening to the magistrate court and the State, Defendant decided it

18 would be in his best interest to have a different jury panel if defense counsel’s

19 objections to the State’s questions had angered the current magistrate court jury panel.


                                               4
 1 Defendant’s counsel explained that he was entitled to a jury trial for petty

 2 misdemeanors in magistrate court and indicated that he had prepared for a new jury

 3 trial in magistrate court. Counsel expressed concern that when the State instead filed

 4 the criminal information in district court it was attempting to deprive Defendant of his

 5 right to a trial by jury. Defendant also argued that the hearing was scheduled on

 6 Defendant’s discovery motion, not on the issue of whether Defendant had the right to

 7 a jury trial. Given the unexpected issue of the right to a jury trial raised during the

 8 hearing, defense counsel asserted that the State’s conduct raised concerns regarding

 9 double jeopardy and that “there may be a double jeopardy issue.” Defendant argued

10 that the State was trying to avoid giving Defendant “two bites at the apple.” Counsel

11 argued that he did not want Defendant to lose his rights, that he did believe Defendant

12 has a right to jury trial and that “perhaps his rights are being threatened by double

13 jeopardy at this point.”

14        The State responded that it would ask for a jury trial if Defendant wanted two

15 bites at the apple. The State reiterated its belief that Judge Orlik could quickly decide

16 this case and the high probability that a result would go against the State. The State

17 also asserted that, if needed, it would ask the magistrate judge to testify as to why he

18 granted the mistrial on the basis of manifest necessity because the facts were different

19 than defense counsel had presented them. Defendant objected to the States’s assertion


                                               5
 1 regarding the facts. Defense counsel argued that the State was implying that he had

 2 attempted to mislead the district court regarding the magistrate court proceedings.

 3 Judge Orlik responded that the court was not misled, that the State’s attorney had a

 4 tendency to unintentionally use nuances that some people might find offensive, and

 5 that the court did not believe the State had done so during the current proceedings.

 6 The district court granted Defendant’s request for a continuance and stated that it

 7 would set the matter for a bench trial.

 8        The district court held a bench trial on November 4, 2009. In his capacity as

 9 factfinder, Judge Orlik found Defendant guilty of first offense DWI. Judge Orlik

10 based his decision on a videotape of Defendant’s performance on his field sobriety

11 tests. Defendant filed a timely notice of appeal.

12 DISCUSSION

13        Defendant argues on appeal that there was no manifest necessity for mistrial in

14 the magistrate court and double jeopardy should have barred retrial of the charges in

15 district court. U.S. Const. amend. V; N.M. Const. art. II, § 15. Defendant also argues

16 that this Court should dismiss the charges with prejudice because the State’s

17 misconduct violated due process and his “vested right” to a jury trial.

18 A.     Double Jeopardy

19        The Double Jeopardy Clause of the United States Constitution and the New


                                             6
 1 Mexico Constitution guarantees that no person shall be put in jeopardy twice for the

 2 same offense. U.S. Const. amend. V; N.M. Const. art. II, § 15. “If . . . the trial court

 3 declares a mistrial and discharges the jury, the [d]ouble [j]eopardy [c]lause prohibits

 4 a defendant from being placed in jeopardy again at a second trial for the same offense

 5 unless there is a manifest necessity for the discharge of the first jury. . . .” State v.

 6 Foster, 2003-NMCA-099, ¶ 7, 134 N.M. 224, 75 P.3d 824 (internal quotation marks

 7 and citation omitted). “Jeopardy attaches in a jury trial when the jury is empaneled

 8 and sworn[.]” Cnty. of Los Alamos v. Tapia, 109 N.M. 736, 737 n.1, 790 P.2d 1017,

 9 1018 n.1 (1990). Defendant notes the “unusual nature of the facts” in this case: “The

10 [S]tate moved for mistrial during voir dire.” For the purposes of this Opinion, we

11 shall assume without deciding that jeopardy can attach to Defendant’s charges at the

12 time of the voir dire proceedings.

13        Defendant did not properly object to a mistrial in the magistrate court and did

14 not invoke a ruling on this issue in the district court. The issue of double jeopardy,

15 however, can be raised for the first time on appeal, and this Court will review a

16 defendant’s contention that his constitutional guarantees against double jeopardy were

17 violated under a de novo standard of review. State v. Lopez, 2008-NMCA-002, ¶ 12,

18 143 N.M. 274, 175 P.3d 942. However, Defendant’s double jeopardy claim is fact

19 specific and requires this Court to carefully review the evidence to determine the


                                               7
 1 existence of manifest necessity. See State v. Messier, 101 N.M. 582, 584-85, 686 P.2d

 2 272, 274-75 (Ct. App. 1984) (“Determination of the propriety of manifest necessity

 3 must be made under the particular facts of each individual case.”). As a result, this

 4 Court will only review Defendant’s claim if there is a factual basis in the record to

 5 support the claim. See State v. Wood, 117 N.M. 682, 687, 875 P.2d 1113, 1118 (Ct.

 6 App. 1994) (holding there must be a factual basis in the record to support a double

 7 jeopardy claim).

 8        The State asserts that the factual record on appeal is inadequate for this Court

 9 to review the propriety of Defendant’s claim. In response, Defendant argues that the

10 magistrate court is not a court of record and, “the defense did everything it could to

11 preserve the facts underlying the improper declaration of mistrial in magistrate court.”

12 But, Defendant was not, as he claims, “powerless to improve upon [the] record,” or

13 to otherwise factually develop his claim for appeal. “We place the burden on the

14 defendant, the party raising the double jeopardy challenge, to provide a sufficient

15 record for the court . . . .” State v. Sanchez, 1996-NMCA-089, ¶ 11, 122 N.M. 280,

16 923 P.2d 1165. This requirement is “fundamentally fair to the State which must have

17 the opportunity to contest Defendant’s version of the facts.” Id.

18        When a district court reviews a magistrate court’s grant of mistrial on the basis

19 of manifest necessity, it must make an independent determination, but it may review


                                              8
 1 the events that transpired in the magistrate court to the extent necessary to make a

 2 meaningful determination. Foster, 2003-NMCA-099, ¶¶ 19-20. The facts in Foster

 3 are significantly different from the present case because the defendant objected to the

 4 magistrate court’s finding of manifest necessity and there was a much more extensive

 5 record for the district court to review. Id. ¶ 4. However, this Court briefly addressed

 6 questions that might arise when, as in this case, the factual record before the district

 7 court is missing material information. Id. ¶ 18. We reasoned that the district court

 8 should permit “generous allowance for record modification” if a defendant requests

 9 to supplement a sparse record with necessary and omitted material information

10 pursuant to Rule 6-703(G) NMRA. Foster, 2003-NMCA-099, ¶ 18. Thus, at a

11 defendant’s request, the district court may independently inquire as to proceedings in

12 the magistrate court when necessary to make a meaningful determination of the

13 existence of manifest necessity. Id. ¶¶ 19-20; see also State v. Antillon, 2000-NMSC-

14 014, ¶ 12, 129 N.M. 114, 2 P.3d 315 (concluding that it is “unjust to prevent the

15 defendant from including evidence relevant to [the] defense [of double jeopardy] in

16 the record proper”).

17        In this case, defense counsel made no such request for an independent inquiry

18 or to supplement the record. The record on appeal indicates that defense counsel

19 merely asserted that “perhaps” there was a double jeopardy violation and that trial in


                                              9
 1 the district court “may” violate Defendant’s rights. Now Defendant makes numerous

 2 unsupported assertions regarding the State’s bad faith, the magistrate court’s failure

 3 to consider alternatives to a mistrial, and the lack of an emergency to justify the

 4 finding of manifest necessity. But these assertions are not evidence, and defense

 5 counsel does not cite to any factual evidence in the record to support where these

 6 assertions were established below. See State v. Gonzales, 2011-NMCA-007, ¶ 30, 149

 7 N.M. 226, 247 P.3d 1111 (refusing to consider Defendant’s “unsupported and

 8 speculative suggestion[s]” in the absence of citations to the record), cert. denied,

 9 2010-NMCERT-012, 150 N.M. 492, 263 P.3d 269.

10        Moreover, the record provides this Court with no factual information regarding

11 any prosecutorial misconduct or bad faith. There is no record to determine whether

12 such conduct occurred or would otherwise negate the existence of manifest necessity.

13 We will not speculate on appeal regarding the record. See Sanchez, 1996-NMCA-089,

14 ¶ 10 (refusing to “engage in conjecture” when the defendant raised a double jeopardy

15 claim based on unitary conduct without establishing a sufficient factual record to

16 support his claim); State v. Andazola, 2003-NMCA-146, ¶ 27, 134 N.M. 710, 82 P.3d

17 77 (finding the record inadequate to review the defendant’s double jeopardy claim).

18 As such, the record is inadequate to support Defendant’s double jeopardy claims on

19 appeal.


                                             10
 1        Additionally, the record we do have supports the grant of a mistrial. We have

 2 the magistrate judge’s handwritten notes and order granting the mistrial. The notes

 3 state, “Def[endant] does not oppose—Defendant ask[s] for mistrial—Def[endant]

 4 thinks jury panel prejudiced.” The order indicates that the State made the motion for

 5 mistrial without opposition from Defendant, and the magistrate court granted the

 6 motion on the grounds of manifest necessity. Defendant’s concurrence in the State’s

 7 motion for mistrial supports a determination that manifest necessity was established.

 8 Such a concurrence is now binding on Defendant. State v. Collins, 2007-NMCA-106,

 9 ¶ 27, 142 N.M. 419, 166 P.3d 480 (recognizing that to “allow a defendant to invite

10 error and to subsequently complain about that very error would subvert the orderly

11 and equitable administration of justice” (internal quotation marks and citation

12 omitted)). Accordingly, Defendant’s double jeopardy argument fails.

13 B.     Prosecutorial Misconduct

14        We next address Defendant’s argument that the State’s conduct was an

15 improper and manipulated attempt to deny Defendant his right to a trial by jury in

16 violation of Defendant’s due process rights. “An appellate review of a prosecutorial

17 misconduct claim presents a mixed question of law and fact.” State v. McClaugherty,

18 2008-NMSC-044, ¶ 39, 144 N.M. 483, 188 P.3d 1234. “The appellate court will defer

19 to the district court when it has made findings of fact that are supported by substantial


                                              11
 1 evidence and reviews de novo the district court’s application of law to the facts.” Id.

 2        In support of his claim, Defendant first argues that his right to a trial by jury

 3 was “vested” at the magistrate court level and thus, the district court had no discretion

 4 to hold a bench trial. However, the district court concluded that Defendant had not

 5 made a demand for trial by jury, and even if Defendant had requested a jury trial, we

 6 see no reason why Defendant’s right to a trial by jury in a magistrate court transfers

 7 to the district court such that it becomes a “vested” right. See State v. Lyon, 103 N.M.

 8 305, 310, 706 P.2d 516, 521 (Ct. App. 1985) (affirming district court’s bench trial

 9 conviction of a defendant for first offense DWI where the defendant had filed a formal

10 jury demand at the district court level and defendant was convicted by jury of a greater

11 DWI offense at a metropolitan court); State v. Haar, 94 N.M. 539, 540, 612 P.2d

12 1350, 1351 (Ct. App. 1980) (holding that a defendant is not entitled to jury trial de

13 novo in district court for first offense DWI after a trial by jury in magistrate court).

14 In addition, Defendant cites no authority on point for this novel “vested right” to a

15 jury trial argument. As a result, we will not address it on appeal. See Gonzales, 2011-

16 NMCA-007, ¶ 19 (explaining that this Court has no duty to review arguments that are

17 not adequately developed); see also State v. Torres, 2005-NMCA-070, ¶ 34, 137 N.M.

18 607, 113 P.3d 877 (stating that this Court will not address issues unsupported by

19 argument and authority).


                                              12
 1        Next, Defendant argues that the State’s motives in seeking a mistrial were

 2 improper and were actually aimed at depriving Defendant of his right to a trial by jury.

 3 Defendant concedes, however, that the charges against Defendant do not automatically

 4 entitle Defendant to a right to trial by jury. To the extent Defendant speculates about

 5 “vindictive prosecution” or some grandiose plan by the State to deny Defendant a jury

 6 trial, the evidence presented before the district court did not support such a plan.

 7 Defendant fails to cite to any facts in the record or other authority in support of this

 8 contention, and we decline to review Defendant’s undeveloped argument on appeal.

 9 See State v. Ortiz, 2009-NMCA-092, ¶ 32, 146 N.M. 873, 215 P.3d 811 (noting that

10 it is the party’s responsibility to connect legal theories to the pertinent elements and

11 the factual support for those elements and that this Court may decline to review

12 undeveloped arguments on appeal). As a result, the record does not establish that

13 Defendant’s conviction for DWI should be overturned on the basis of prosecutorial

14 misconduct.

15 CONCLUSION

16        For the foregoing reasons, we affirm the ruling of the district court.

17        IT IS SO ORDERED.


18                                          ___________________________________
19                                          TIMOTHY L. GARCIA, Judge


                                              13
1 WE CONCUR:



2 _________________________________
3 CELIA FOY CASTILLO, Chief Judge



4 _________________________________
5 JONATHAN B. SUTIN, Judge




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