Breit test in New Mexico

2025See State v. Haynes, 2000-NMCA-060 , ¶ 6, 129 N.M. 304 , 6 P.3d 1026 (concluding that the absence of the third factor was dispositive and it was unnecessary to analyze the first two Breit factors).

2025See State v. Haynes, 2000-NMCA-060 , ¶ 6, 129 N.M. 304 , 6 P.3d 1026 (concluding that the absence of the third factor was dispositive and it was unnecessary to analyze the first two Breit factors).

2022As a threshold matter, the Breit test requires “improper official conduct.” Id. (emphasis added).

2022As a threshold matter, the Breit test requires “improper official conduct.” Id. (emphasis added).

2025Our Supreme Court has determined that prosecutorial misconduct rises to this level only “when [(1)] 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 [(2)] if the official knows that the conduct is improper and prejudicial, and [(3)] if the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.” State v. Breit, 1996-NMSC-067, ¶ 32 , 122 N.M. 655 , 930 P.2d 792 . {4} While the parties dispute all three of the Breit factors

2025Our Supreme Court has determined that prosecutorial misconduct rises to this level only “when [(1)] 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 [(2)] if the official knows that the conduct is improper and prejudicial, and [(3)] if the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.” State v. Breit, 1996-NMSC-067, ¶ 32 , 122 N.M. 655 , 930 P.2d 792 . {4} While the parties dispute all three of the Breit factors

2008Even 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. {65} 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

2008Even 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. {65} 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

2022See Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[A] counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.”), superseded on other grounds by statute, Antiterrorism and Effective Death Penalty Act of 1996, Pub.

2022See Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[A] counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.”), superseded on other grounds by statute, Antiterrorism and Effective Death Penalty Act of 1996, Pub.

2007See State v. Fielder, 2005-NMCA-108, ¶ 23 , 138 N.M. 244 , 118 P.3d 752 (holding that a lone instance of prosecutorial misconduct did not rise to the level of misconduct articulated in Breit ); State v. Pacheco, 1998-NMCA-164, ¶¶ 11-15 , 126 N.M. 278 , 968 P.2d 789 (holding that a comment on the defendant's silence, even though a clear violation of law requiring a mistrial, was insufficient to reach the Breit bar prohibiting retrial). {35} As we read and understand Breit , the re-prosecution bar under the willful-disregard test is to be invoked only in rare instances when it can be shown that

2007See State v. Fielder, 2005-NMCA-108, ¶ 23 , 138 N.M. 244 , 118 P.3d 752 (holding that a lone instance of prosecutorial misconduct did not rise to the level of misconduct articulated in Breit); State v. Pacheco, 1998-NMCA-164, ¶¶ 11-15 , 126 N.M. 278 , 968 P.2d 789 (holding that a comment on the defendant’s silence, even though a clear violation of law requiring a mistrial, was insufficient to reach the Breit bar prohibiting retrial). {35} As we read and understand Breit, the re-prosecution bar under the willful-disregard test is to be invoked only in rare instances when it can be shown that th

2007See State v. Fielder, 2005-NMCA-108, ¶ 23 , 138 N.M. 244 , 118 P.3d 752 (holding that a lone instance of prosecutorial misconduct did not rise to the level of misconduct articulated in Breit); State v. Pacheco, 1998-NMCA-164, ¶¶ 11-15 , 126 N.M. 278 , 968 P.2d 789 (holding that a comment on the defendant’s silence, even though a clear violation of law requiring a mistrial, was insufficient to reach the Breit bar prohibiting retrial). {35} As we read and understand Breit, the re-prosecution bar under the willful-disregard test is to be invoked only in rare instances when it can be shown that th

2007See State v. Fielder, 2005-NMCA-108, ¶ 23 , 138 N.M. 244 , 118 P.3d 752 (holding that a lone instance of prosecutorial misconduct did not rise to the level of misconduct articulated in Breit); State v. Pacheco, 1998-NMCA-164, ¶¶ 11-15 , 126 N.M. 278 , 968 P.2d 789 (holding that a comment on the defendant’s silence, even though a clear violation of law requiring a mistrial, was insufficient to reach the Breit bar prohibiting retrial). {35} As we read and understand Breit, the re-prosecution bar under the willful-disregard test is to be invoked only in rare instances when it can be shown that th

2005See Green, 355 U.S. at 189 , 78 S.Ct. 221 . {27} Nonetheless, we believe that the circumstances of this case counsel that the double jeopardy error of trying Defendant a second time for CSP II, when he should not have faced trial on that charge, spilled over to and infected not only the conviction of CSP III, but also the convictions of aggravated burglary and false imprisonment.

2005See Green, 355 U.S. at 189 , 78 S.Ct. 221 . {27} Nonetheless, we believe that the circumstances of this case counsel that the double jeopardy error of trying Defendant a second time for CSP II, when he should not have faced trial on that charge, spilled over to and infected not only the conviction of CSP III, but also the convictions of aggravated burglary and false imprisonment.

2019See Lucero, 1999-NMCA-102, ¶ 23 (acknowledging that a conclusion that one of the Breit prongs is not satisfied disposes of a defendant’s double jeopardy argument). {11} As used in the third prong of the Breit test, “willful disregard” “emphasiz[es] that the prosecutor is actually aware, or is presumed to be aware, of the potential consequences of his or her actions.

2019See Lucero, 1999-NMCA-102, ¶ 23 (acknowledging that a conclusion that one of the Breit prongs is not satisfied disposes of a defendant’s double jeopardy argument). {11} As used in the third prong of the Breit test, “willful disregard” “emphasiz[es] that the prosecutor is actually aware, or is presumed to be aware, of the potential consequences of his or her actions.

2022In State v. Day, although we held retrial was not barred under those facts, we noted 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.” 1980-NMSC-032 , ¶ 15, 94 N.M. 753 , 617 P.2d 142 , cert. denied, 449 U.S. 860 (1980).

2022In State v. Day, although we held retrial was not barred under those facts, we noted 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.” 1980-NMSC-032 , ¶ 15, 94 N.M. 753 , 617 P.2d 142 , cert. denied, 449 U.S. 860 (1980).

2022See State v. Hildreth, 2022-NMSC-012 , ¶ 22, 506 P.3d 354 (citing United States v. Dinitz, 424 U.S. 600, 611 (1976) (emphasizing the necessity of “governmental actions” to invoke double jeopardy concerns over multiple prosecutions)).

2022See State v. Hildreth, 2022-NMSC-012 , ¶ 22, 506 P.3d 354 (citing United States v. Dinitz, 424 U.S. 600, 611 (1976) (emphasizing the necessity of “governmental actions” to invoke double jeopardy concerns over multiple prosecutions)).

2022See State v. Hildreth, 2022-NMSC-012 , ¶ 22, 506 P.3d 354 (citing United States v. Dinitz, 424 U.S. 600, 611 (1976) (emphasizing the necessity of “governmental actions” to invoke double jeopardy concerns over multiple prosecutions)).

2022See State v. Hildreth, 2022-NMSC-012 , ¶ 22, 506 P.3d 354 (citing United States v. Dinitz, 424 U.S. 600, 611 (1976) (emphasizing the necessity of “governmental actions” to invoke double jeopardy concerns over multiple prosecutions)).

1998Jury Impaneling {28} Defendant relies on State v. Garcia, 95 N.M. 246, 249 , 620 P.2d 1271, 1274 (1980) (defendant has right to be present when challenges to jurors are made), to argue that he had a right to be present at all stages of the jury impaneling process, including during the court clerk’s compiling of random jury panels.

1998Jury Impaneling {28} Defendant relies on State v. Garcia, 95 N.M. 246, 249 , 620 P.2d 1271, 1274 (1980) (defendant has right to be present when challenges to jurors are made), to argue that he had a right to be present at all stages of the jury impaneling process, including during the court clerk’s compiling of random jury panels.