State v. Costillo

                                                                           Office of the Director              New Mexico
                                                                            11:03:04 2020.11.18                Compilation
                                                                                          '00'07-              Commission


             IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: August 27, 2020

No. A-1-CA-36032

STATE OF NEW MEXICO,

        Plaintiff-Appellee,

v.

LEO COSTILLO, JR.,

        Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Karen L. Townsend, District Judge

Released for Publication November 24, 2020.

Hector H. Balderas, Attorney General
Santa Fe, NM
Laurie P. Blevins, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Aja Oishi, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                                 OPINION

HANISEE, Chief Judge.

{1}   The formal opinion previously filed in this matter on September 26, 2019, is
hereby withdrawn, and this opinion is substituted therefor. 1



1This opinion has been modified on remand from our New Mexico Supreme Court, see No. S-1-SC-
37981 (filed January 31, 2020), which instructed that this Court reconsider our original opinion in light of
{2}    Defendant Leo Costillo, Jr., appeals from his convictions of twenty-one counts of
criminal sexual penetration of a minor (CSPM), one count of attempt to commit CSPM,
and one count of intimidation of a witness. Defendant argues that his convictions must
be reversed because during trial, the State impermissibly commented on his prearrest
silence in violation of his Fifth Amendment right to remain silent. Defendant also argues
that due process and his right to be free from double jeopardy require the reversal of all
but one of his convictions for CSPM and that his prosecution for intimidation of a
witness was time-barred, requiring reversal of that conviction as well. We agree that the
State’s pervasive references to Defendant’s invocation of his Fifth Amendment privilege,
and the conclusion of guilt the State suggested be drawn therefrom, does not withstand
constitutional scrutiny. We further agree that the State’s prosecution of Defendant for
intimidation of a witness was time-barred. We disagree, however, with Defendant that
the State is barred from reprosecution under State v. Breit, 

, 

, 

. Finally, we decline to resolve Defendant’s contention that his CSPM
convictions violated his due process and double jeopardy rights, given his failure to
challenge the nature of the criminal information on those grounds prior to trial. We
nonetheless permit such a challenge on remand based upon our New Mexico Supreme
Court’s recent clarification of law in this area. We, therefore, reverse Defendant’s
convictions and remand for a new trial.

BACKGROUND

{3}    During the summer of 2008, when R.S. was six years old, she lived with her
grandmother and Defendant, her grandmother’s husband. According to the criminal
information filed by the State and R.S.’s testimony at trial, Defendant repeatedly raped
R.S. from August 2008 until April 2009; threatened to hurt R.S. or her brother if she told
anyone; and attempted but failed to rape R.S. in April 2013. R.S. first told her mother of
the sexual abuse in 2015, and six months later, both reported it to police.

{4}    Defendant was charged by criminal information with twenty-six counts of CSPM,
which uniformly alleged identical instances of conduct occurring on or about the same
date: August 15, 2008. 2 Defendant was also accused of a single count of intimidation of
a witness. At trial, R.S., her mother, and San Juan County Sheriff’s Deputy Detective
Robert Tallman, the detective who conducted a voluntary, non-custodial interview of
Defendant prior to any charges being filed, testified for the State. Defendant testified in
his own defense, as did his wife and R.S.’s grandmother, Rosita Costillo. The jury
returned guilty verdicts on all counts submitted to it. Defendant appeals. We reserve
further discussion of the facts for our analysis.

DISCUSSION


State v. Lente, 

, 

, which was filed shortly after issuance of our original
opinion in this case.
2Following the State’s oral motion at trial to amend the information based on testimony that was
presented at trial, there remained twenty-one counts of CSPM, one count of attempted CSPM (a lesser
included offense of one count of CSPM), and one count of intimidation of a witness. The jury ultimately
returned guilty verdicts on these remaining twenty-three counts.
I.    The Prosecutor’s Comments on and Use of Defendant’s Invoked Silence
      Violated His Fifth Amendment Rights and Constituted Fundamental Error

{5}     Defendant argues that the prosecutor’s “direct and extensive comment on
constitutionally protected silence” contributed to the “[e]xtreme and pervasive
prosecutorial misconduct” that deprived him of a fair trial. Detective Tallman interviewed
Defendant at the San Juan County Sheriff’s office, and the clear implication of Detective
Tallman’s questioning, which Defendant quickly learned, was that Detective Tallman
believed Defendant had sexually abused R.S. Despite the setting, and consistent with
the non-custodial nature of the interview, Defendant declined to answer Detective
Tallman’s questions and asked several times to end the interview. Defendant contends
that at his ensuing trial the prosecutor then impermissibly commented on Defendant’s
invocation of his Fifth Amendment right to remain silent during his voluntary, prearrest
interview with Detective Tallman. Indeed, during trial, the prosecutor commented on
Defendant’s silence during every phase of the proceeding: in opening statement, during
direct examination of Detective Tallman, while cross-examining Defendant, during his
closing argument, and finally in rebuttal. Defendant, however, failed to make any
objections to this evidence or argument.

{6}     “[W]e review de novo the legal question whether the prosecutor improperly
commented on [the d]efendant’s silence.” State v. Foster, 

, 

, 

. “When a defendant fails to object at trial to comments made by
the prosecution about his or her silence, we review only for fundamental error[.]” State
v. DeGraff, 

, 

, 

. “This review consists of
two parts. We first determine whether any error occurred, i.e., whether the prosecutor
commented on the defendant’s protected silence. If such an error occurred, we then
determine whether the error was fundamental.” 

 Before we conduct our fundamental
error analysis, however, we must answer two threshold questions—whether the State
may use a defendant’s prearrest silence as substantive proof of guilt when Defendant
has invoked his right to remain silent, and whether Defendant did in fact invoke his right
to remain silent in this case.

A.    Prosecutors in New Mexico May Not Use a Defendant’s Invoked Prearrest
      Silence as Substantive Evidence of Guilt

{7}     The Fifth Amendment to the United States Constitution provides that “[n]o person
shall . . . be compelled in any criminal case to be a witness against himself[.]” U.S.
Const. amend. V. That “guarantee against testimonial compulsion . . . must be accorded
liberal construction in favor of the right it was intended to secure.” Hoffman v. United
States, 

 (1951). “It is the extortion of the information from the
accused, the attempt to force him to disclose the contents of his own mind, that
implicates the Self-Incrimination Clause.” Doe v. United States, 

(1988) (internal quotation marks and citations omitted). “There are four relevant time
periods at which a defendant may either volunteer a statement or remain silent: before
arrest; after arrest, but before the warnings required by Miranda v. Arizona, 

, . . . (1966), have been given; after Miranda warnings have been given; and at trial.”
DeGraff, 

.

{8}     It remains axiomatic in American jurisprudence that a defendant’s exercise of his
right to remain silent at trial may not be used as a basis to convict him. See id. ¶ 12
(“The Fifth Amendment protects a defendant’s decision not to testify at trial from
prosecutorial comment.”); see also Griffin v. California, 

 (1965) (“[T]he
Fifth Amendment . . . forbids either comment by the prosecution on the accused’s
silence or instructions by the court that such silence is evidence of guilt.”). It is also well
established that “due process guaranteed by the Fifth Amendment protects postMiranda silence.” DeGraff, 

 (citing Doyle v. Ohio, 

 (1976)). The law is “less clear” regarding a prosecutor’s ability to comment on a
defendant’s invocation of his or her right to remain silent post-arrest, pre-Miranda.
DeGraff, 

. Even more uncertain is whether there exists a
constitutional limitation on a prosecutor’s ability to comment on a defendant’s prearrest
and pre-Miranda silence, the circumstance present in this case.

{9}     In Jenkins v. Anderson, the United States Supreme Court held that use of
prearrest silence to impeach a criminal defendant’s credibility does not violate the Fifth
Amendment, but the Court expressly reserved the question of whether a defendant’s
prearrest silence can be used in circumstances other than impeachment. See 

, 236 n.2, 239 (1980) (“Our decision today does not consider whether or under what
circumstances prearrest silence may be protected by the Fifth Amendment.”). That
question has remained open since Jenkins, as evinced by the division among lower
courts considering whether the Constitution protects prearrest, pre-Miranda invocations
of silence from substantive evidentiary use. 3


3See United States v. Okatan, 

 (2d Cir. 2013) (holding the prosecution was
not permitted to use the driver’s prearrest invocation or his subsequent silence as part of “its case in chief
as substantive evidence of guilt”); Combs v. Coyle, 

 (6th Cir. 2000) (holding the
prosecution was barred from using the defendant’s prearrest statement “as substantive evidence of guilt”
because that would violate “the Fifth Amendment’s privilege against self-incrimination”); United States v.
Burson, 

 (10th Cir. 1991) (concluding the defendant’s prearrest, pre-Miranda
silence could not be substantively used by the prosecution at trial because “once a defendant invokes his
right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which
[the] defendant exercised”); Coppola v. Powell, 

 (1st Cir. 1989) (holding
admission of a state trooper’s testimony that the defendant stated prior to arrest that “he would not talk . .
. without a lawyer” during the prosecution’s case in chief violated the Fifth Amendment); U.S. ex rel.
Savory v. Lane, 

 (7th Cir. 1987) (holding that the defendant’s prearrest, pre-Miranda statement to officers that he did not want to speak to them was protected from use by the
prosecution in its case in chief by the Fifth Amendment, but concluding it was harmless error); but see
United States v. Oplinger, 

 (9th Cir. 1998) (“[W]e respectfully disagree with the
First, Seventh and Tenth Circuits, which have all held that pre[]arrest silence comes within the
proscription against commenting on a defendant’s privilege against self-incrimination[.]”), overruled on
other grounds by United States v. Contreras, 

 (9th Cir. 2010) (per curiam); United
States v. Rivera, 

 (11th Cir. 1991) (“The government may comment on a defendant’s
silence if it occurred prior to the time that he is arrested and given his Miranda warnings.”). State courts
likewise are divided on the issue of whether the prosecution may introduce such evidence during its case
in chief, with a significant number of states holding, on either federal or state constitutional grounds, that
{10} In 2013, the United States Supreme Court granted certiorari “to resolve a division
of authority in the lower courts over whether the prosecution may use a defendant’s
assertion of the privilege against self-incrimination during a noncustodial police
interview as part of its case in chief.” Salinas v. Texas, 

 (2013). A
plurality of the divided Court, however, determined that the defendant failed to invoke
his right of silence and thus found it unnecessary to reach the question on which
certiorari was granted. See 

 Concurring in the judgment, Justice Thomas, joined by
Justice Scalia, wrote that even had the defendant invoked the privilege, “the
prosecutor’s comments regarding [the defendant’s] precustodial silence did not compel
him to give self-incriminating testimony” and were, therefore, not improper comments on
silence. 

 (Thomas & Scalia, JJ, concurring in judgment). The dissent, authored
by Justice Breyer and joined by Justices Ginsburg, Sotomayor, and Kagan, concluded
oppositely, reasoning that “the Fifth Amendment here prohibits the prosecution from
commenting on [the defendant’s] silence in response to police questioning.” 

(Breyer, Ginsburg, Sotomayor, & Kagan, JJ, dissenting). Salinas, therefore, left in place
the differing federal circuit and state perspectives on the substantive viability of
prearrest, pre-Miranda invoked silence.

{11} We agree with those courts that have concluded that a defendant’s prearrest,
pre-Miranda silence, once invoked, may not be admitted as substantive evidence of
guilt by a prosecutor at trial. We, too, consider assertions of an individual’s Fifth
Amendment right of silence in the face of accusatory questioning by law enforcement to
not be fodder for insinuations of guilt at trial. See 

 (“[T]o allow comment on
silence directly or indirectly can compel an individual to act as a witness against
himself—very much what the Fifth Amendment forbids.” (Breyer, J., dissenting) (internal
quotation marks and citation omitted))); Okatan, 

 (answering in the
negative “the question the Supreme Court left unanswered in Salinas: whether the
prosecution may use a defendant’s assertion of the privilege against self-incrimination
during a noncustodial police interview as part of its case in chief” (internal quotation
marks and citation omitted)). To hold otherwise validates—at the expense of the
constitutional right holder—a classic “lose-lose” scenario, wherein the suspect either
elects to answer police questions at the risk of self-incriminating disclosure or does not
do so and the prosecution later uses the silence as evidence of guilt. In this context, the
Constitution proscribes such an advantage to the state to the detriment of individuals
within it.

{12} While Defendant was present at the interview voluntarily, he quickly realized
even in the absence of Miranda warnings that anything he said could be “dangerous” to
himself as an “injurious disclosure[.]” See Hoffman, 

. To conclude that
the State may use Defendant’s ensuing invocation of the Fifth Amendment as evidence
of his guilt in its case in chief would, as explained by the Supreme Court in Griffin,
render New Mexico courtrooms forums for little more than “an inquisitorial system of
criminal justice” that imposes “a penalty . . . for exercising a constitutional privilege.” 

 (internal quotation marks and citation omitted); 

 (holding that the

the state is barred from substantively using such prearrest expressions of silence. See State v. Kulzer,

, 

, 

 (summarizing state court decisions).
Fifth Amendment “forbids either comment by the prosecution on the accused’s silence
[by not testifying at trial] or instructions by the court that such silence is evidence of
guilt”). This we cannot abide. As did the analysis that underpinned Griffin and the
dissent in Salinas, we decline to make one’s prearrest assertion of the Fifth Amendment
costly to a criminal defendant by allowing the State to infer guilt based thereon. We hold
that prosecutors in New Mexico may not use a defendant’s prearrest silence as
substantive evidence of guilt when the defendant has invoked the Fifth Amendment
privilege against self-incrimination.

B.     Defendant Invoked His Right to Remain Silent

{13} We next turn briefly to the State’s argument that Defendant failed to invoke his
right to remain silent. If Defendant did not invoke his Fifth Amendment privilege, the
prosecutor’s comments on Defendant’s silence were not constitutionally prohibited. See
DeGraff, 

 (recognizing “that silence is protected only if a right to
remain silent is invoked”); see also Salinas, 

 (“Before [the defendant]
could rely on the privilege against self-incrimination, he was required to invoke it.”). “As
a general rule, the constitutional privilege against self-incrimination is available only if it
is invoked as the ground for refusing to speak.” State v. Gutierrez, 

,
¶ 8, 

, 

. “If the witness desires the protection of the privilege,
he must claim it[.]” 

 (alteration, internal quotation marks, and citation omitted). “It is
agreed by all that a claim of the privilege does not require any special combination of
words.” Quinn v. United States, 

 (1955). “[N]o ritualistic formula is
necessary in order to invoke the privilege.” 

. “All that is necessary is an
objection [to a question] stated in language that [the propounder of the question] may
reasonably be expected to understand as an attempt to invoke the privilege.” Emspak v.
United States, 

 (1955).

{14} Here, the recording of Detective Tallman’s interview of Defendant reflects that
Defendant unequivocally informed Detective Tallman that he would not speak with him
upon learning the topic Detective Tallman wished to discuss. When Detective Tallman
invited Defendant to “start at the beginning and tell me about how that all started and
how that happened[,]” referring to “some inappropriate things” that had gone on with
R.S., Defendant immediately responded, “Let’s stop there. Now that’s the reason why I
was asking what am I—am I in trouble for something because—this, this is gonna go to
more evil stuff. Shouldn’t I have an attorney here?” Defendant also repeatedly asked to
stop the interview and indicated that he did not wish to continue speaking with Detective
Tallman by asking, “So, can we stop for a while? I mean, step out of this, you know?”
When Detective Tallman continued to question Defendant, Defendant interjected, not
ten seconds later, “Can I go now? Can we set another time when we can talk?”
Defendant ultimately demonstrated his intent not to speak with Detective Tallman, i.e.,
to exercise his right to remain silent, by answering affirmatively that he did not wish to
speak further and by leaving the interview. Cf. State v. King, 

,

 (holding that the defendant invoked his right to remain silent in a custodial
interrogation when the defendant’s invocation was not ambiguous). Based on the
foregoing, we have little difficulty concluding that Defendant invoked his right to remain
silent during his interview with Detective Tallman.

C.     The Prosecutor Impermissibly Commented on Defendant’s Silence

{15} We next consider whether—under existing precedent and the prohibition we
announce today—the prosecutor’s questions to Detective Tallman and Defendant and
statements during the State’s opening and closing remarks constituted improper
commentary on Defendant’s silence. In so doing, we consider “whether the language
used was manifestly intended to be or was of such a character that the jury would
naturally and necessarily take it to be a comment on the accused’s exercise of his or
her right to remain silent.” DeGraff, 

 (internal quotation marks and
citation omitted).

{16} As stated already, the prosecutor directly exploited Defendant’s refusal to answer
Detective Tallman’s questions throughout the proceedings. Twice during his opening
statement, the prosecutor noted Defendant’s failure to deny his involvement in R.S.’s
sexual abuse during the interview with Detective Tallman, informing the jury that
Defendant “d[idn]’t deny it once, not once,” and a short time later, reminding them again
that Defendant “[d]oesn’t deny [the allegations] just once.” During direct examination of
Detective Tallman, the prosecutor introduced and played the forty-minute taped
interview of Defendant in which he invoked his right to remain silent. Then when asked,
“Did [Defendant] give any reasons why he would be falsely accused of such a heinous
crime?” Detective Tallman responded, “Not one.” And when cross-examining Defendant
regarding his conversation with Detective Tallman, the prosecutor directly asked: “[W]hy
didn’t you profess your innocence just like you did to the jury?” Perhaps most illustrative
of the prosecutor’s mindset was his suggestion during closing argument that Defendant,
if innocent, should have professed his innocence during the interview. The prosecutor
suggested to the jury that they put themselves in the position of Defendant, arguing:

       When confronted . . . you’re gonna wonder why these accusations are
       coming if you’re really innocent. You’re gonna be like, ‘wow, that’s really
       crazy that this little girl would even come up with these schemes.’ But the
       first thing you’d want to do is profess your innocence. And you didn’t get
       any of that.

The natural and necessary impact upon the jury of each of the prosecutor’s statements,
especially taken together, was to prompt the jury to wonder what Defendant was hiding
by invoking his right to remain silent. See State v. Hennessy, 

, ¶ 16,

, 

 (determining “whether the language of the prosecutor’s
questions on cross-examination and his comments in closing were such that the jury
would naturally and necessarily have taken them to be comments on the exercise of the
right to remain silent”), overruled on other grounds by State v. Lucero, 

,
¶ 16, 

, 

.
{17} Indeed, the prosecutor’s theory of the case suggestively and unabashedly rested
on the premise that Defendant’s failure to proclaim his innocence in the face of R.S.’s
accusations insinuates—if not commands—a conclusion of guilt. But as we hold today,
a prosecutor’s trial arsenal rightly excludes the fact of a defendant’s invocation of
silence for the straightforward reason that under the Fifth Amendment, no criminal
defendant is compelled to say anything at all, much less profess his innocence, after he
has invoked his right to remain silent. Cf. In re Gault, 

 (1967) (“The
privilege can be claimed in any proceeding, be it criminal or civil, administrative or
judicial, investigatory or adjudicatory. [I]t protects any disclosures which the witness
may reasonably apprehend could be used in a criminal prosecution or which could lead
to other evidence that might be so used.” (omission, internal quotation marks, and
citation omitted)). We conclude that the prosecutor’s comments during his opening
statement and closing argument, as well as the testimony he elicited from Detective
Tallman and Defendant, proactively utilized Defendant’s invocation of his right to remain
silent as indicium of his guilt, and pursuant to our ruling today violated the Fifth
Amendment.

D.     The Prosecutor’s Comments on Defendant’s Silence Constituted
       Fundamental Error

{18} Having concluded that the prosecutor’s comments on Defendant’s silence were
constitutionally improper, we next consider whether they rendered Defendant’s trial
fundamentally unfair such that a new trial is warranted despite Defendant’s failure to
object. DeGraff, 

 (“[I]t is fundamentally unfair and a violation of
due process to allow an individual’s invocation of the right to remain silent to be used
against him or her at trial.” (internal quotation marks and citation omitted)). “Where
counsel fails to object, the appellate court is limited to a fundamental error review.”
State v. Sosa, 

, 

, 

. “[O]ur courts have
been more likely to find reversible error when the prosecution’s comment invades a
distinct constitutional protection.” Id. ¶ 27. “An error is fundamental if there is a
reasonable probability that the error was a significant factor in the jury’s deliberations in
relation to the rest of the evidence before them.” DeGraff, 

(internal quotation marks and citation omitted). “[M]ore direct prosecutorial comments
on a defendant’s invocation of the right to remain silent are more likely to be
fundamental error.” 

 Only when the “evidence of guilt is overwhelming, such that the
prosecutorial impropriety is insignificant by comparison, [may] a conclusion that the
error is not fundamental . . . be warranted.” State v. Pacheco, 

,

, 

 (internal quotation marks omitted).

{19} Considered in sum, the prosecutor’s comments on Defendant’s silence during
opening statement, direct examination of Detective Tallman, cross-examination of
Defendant, and closing argument were cumulatively powerful. Indeed, the commentary
was trial-spanning and suggestive of guilt. To reiterate, the State repeatedly invited the
jury to infer Defendant’s guilt from his invocation of his right to remain silent and his
attendant failure to proclaim his innocence. It would be impossible to conclude in this
instance that the prosecutor’s comments on Defendant’s silence were insignificant to
the jury in its deliberation, particularly given the fact that the evidence of Defendant’s
guilt otherwise hinged largely on the testimony and credibility of R.S. See id. ¶ 18
(“[I]mproper prosecutorial . . . commentary on a defendant’s exercise of the
constitutional right to remain silent is frequently regarded as a significant factor,
sufficiently prejudicial in nature to constitute fundamental error.”). We conclude instead
that the prosecutor’s reliance upon Defendant’s invoked silence, and the implication the
prosecutor urged the jury to draw therefrom, were distinctly prejudicial and warrant a
determination of fundamental error and require reversal of Defendant’s convictions. 4

E.      Retrial Is Not Barred by Double Jeopardy Principles Under Breit

{20} Defendant further contends that the prosecutor’s misconduct at trial was so
extreme that retrial should be barred under double jeopardy principles. “The New
Mexico Constitution, like its federal counterpart, protects any person from being ‘twice
put in jeopardy for the same offense.’ ” Breit, 

 (quoting N.M. Const.
art II, § 15); see U.S. Const. amend. V (providing that “[n]o person shall . . . be subject
for the same offense to be twice put in jeopardy of life or limb”). Generally, however,
“the double jeopardy guarantee imposes no limitations whatever upon the power to retry
a defendant who has succeeded in getting his first conviction set aside.” United States
v. DiFrancesco, 

 (1980) (internal quotation marks and citation
omitted). As the United States Supreme Court has explained, “[i]t would be a high price
indeed for society to pay were every accused granted immunity from punishment
because of any defect sufficient to constitute reversible error in the proceedings leading
to conviction.” 

 (internal quotation marks and citation omitted).

{21} An exception to this rule exists, however, in extreme circumstances of
prosecutorial misconduct, specifically when “a defendant is goaded by prosecutorial
misconduct to move for a mistrial” or to seek “reversal on appeal” in a manner so
extreme as to undermine “the defendant’s interest in having the prosecution completed
by the original tribunal before whom the trial was commenced.” Breit, 

. In Breit, our Supreme Court held:

        Retrial is barred under Article II, Section 15, of the New Mexico
        Constitution, [(1)] 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, [(2)] if the official knows that the conduct is improper


4Defendant also contends that the prosecutor committed misconduct by “improperly introducing evidence
of prior bad acts, then using it to argue propensity[.]” Defendant lodged no objection at trial, but argues
that the prosecutor’s conduct was a direct violation of Rule 11-404(B) NMRA, and thus constitutes per se
fundamental error. Defendant has cited no authority for this bald proposition, we assume none exists, and
we decline to further address his argument in this regard. See State v. Vigil-Giron, 

,

 (“[A]ppellate courts will not consider an issue if no authority is cited in support of the issue
and that, given no cited authority, we assume no such authority exists[.]”); see also Rule 12-321(B)(2)(c)
(permitting an appellate court, in its discretion, to review unpreserved issue for fundamental error); State
v. Guerra, 

, 

 (explaining that appellate courts are under no obligation
to review unclear or undeveloped arguments).
       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.

Breit, 

. But the remedy of barring retrial on double jeopardy
grounds “applies only in cases of the most severe prosecutorial transgressions.” State
v. McClaugherty, 

, 

, 

 (internal
quotation marks and citation omitted).

{22} We conclude that retrial is not barred based upon the prosecutor’s trial conduct.
Although under our holding today the State violated Defendant’s Fifth Amendment
rights, the prosecutor’s reference to and use of Defendant’s refusal to respond to police
questions before he was arrested did not contravene then-established binding
precedent. Indeed, the actions in question were those the United States Supreme Court
sought to but did not resolve in Salinas. The record does not suggest, then, that the
prosecutor knew his questions, comments, and argument were improper or in any way
intended to provoke a mistrial, or that he acted in willful disregard of such under the
second and third prongs of the Breit test. Indeed, Defendant never once objected to any
of that which he now complains should bar his retrial. In contrast to Breit, where the
prosecutor’s misconduct was so “incessant[] and outrageous” that the district court
judge’s memorandum opinion outlining such was included as an appendix to the New
Mexico Supreme Court’s decision, here there is no such comparable record or evidence
of knowing and willful misconduct by the prosecutor. See Breit, 

.
Rather, while we conclude today that the prosecutor’s substantive use of the
Defendant’s silence is constitutionally impermissible and the prejudice associated
therewith amounted to fundamental error, that conduct does not equate to the level of
prosecutorial misconduct required to bar retrial under Breit. As such, retrial is not
barred.

II.    Defendant’s Intimidation of a Witness Conviction Is Barred by the Statute
       of Limitations

{23} Defendant argues that his conviction for intimidation of a witness must be
reversed because the statute of limitations barred the prosecution of that charge. We
agree.

{24} Intimidation of a witness is a third-degree felony. NMSA 1978, § 30-24-3(C)
(1997). The time limit for bringing charges for a third-degree felony is “five years from
the time the crime was committed.” NMSA 1978, § 30-1-8(B) (2009). Defendant’s
intimidation of R.S. occurred in August 2008, and Defendant was not charged or
indicted until 2016, which exceeds the applicable statute of limitations.

{25} The State argues only that the statute of limitations for prosecuting Defendant for
intimidation of a witness was tolled under NMSA 1978, Section 30-1-9.1 (1987).
According to the State, Section 30-1-9.1 applies “when the victim of any offense is a
child.” It does not. Section 30-1-9.1 provides, “[t]he applicable time period for
commencing prosecution pursuant to Section 30-1-8 . . . shall not commence to run for
an alleged violation of [NMSA 1978,] Section 30-6-1 [(2009)], [NMSA 1978,] 30-9-11
[(2009),] or [NMSA 1978,] 30-9-13 [(2003)] until the victim attains the age of eighteen or
the violation is reported to a law enforcement agency, whichever occurs first.” By its
plain language, Section 30-1-9.1 tolls the statute of limitations for prosecuting alleged
violations of Sections 30-6-1 (abandonment or abuse of a child), 30-9-11 (criminal
sexual penetration), and 30-9-13 (criminal sexual contact of a minor). It does not toll the
statute of limitations for prosecuting an alleged violation of Section 30-24-3 (bribery or
intimidation of a witness). Because Defendant’s prosecution for intimidation of a witness
exceeded the applicable limitations period of five years between when the crime was
committed in August 2008 and when the information was filed in March 2016,
Defendant’s conviction on that charge is barred. See State v. Kerby, 

, 

, 

 (vacating the defendant’s convictions that fell
outside the applicable statute of limitations even though defense was not raised below
because the defendant did not knowingly, intelligently, and voluntarily waive the
defense).

III.    Consideration of Defendant’s Due Process and Double Jeopardy
        Challenges Shall Occur on Remand

{26} Defendant argues that all of his CSPM convictions except one violate his due
process and double jeopardy rights and were not supported by sufficient evidence
because the State pursued a course-of-conduct theory of prosecution based on
factually indistinguishable incidents. We leave these challenges for consideration by the
district court on remand.

{27} In its recent opinion in Lente, our New Mexico Supreme Court provided new
guidance on evaluating due process, multiplicious double jeopardy, and sufficiency of
the evidence challenges in “resident child molester” cases, a unique circumstance of
abuse wherein “child victims in these cases are usually the sole witnesses of the crimes
perpetrated and, because of their age and frequency of the sexual abuse to which they
are subjected, cannot provide detailed accounts of the abuse but only general accounts
of frequent sexual contact with the defendant.” 

. Under the
Lente framework, courts first consider whether a defendant is charged with “carbon
copy” counts, i.e., identically worded sex abuse charges that are in no way differentiated
from one another, and thus, violate double jeopardy. Id. ¶¶ 13, 41-49 (explaining the
“double jeopardy problems associated with unspecific, ‘carbon copy’ indictments”). 5
Second, if the charging instrument passes constitutional muster, the trial evidence must
then be sufficient to support multiple convictions. Id. ¶¶ 13, 68-70 (adopting three
evidentiary requirements that must be met in order for an alleged victim’s testimony to
support multiple convictions in resident molester sex abuse cases).




5Each count of alleged CSPM (originally twenty-six counts) contained in the criminal information uniformly
stated: “on or about August 15, 2008, [Defendant] did unlawfully and intentionally cause a [minor] to
engage in sexual intercourse, cunnilingus, fellatio, or anal intercourse or cause penetration, to any extent
and with any object[.]”
{28} Importantly, however, Lente also explained that in order for a defendant to
challenge an indictment or criminal information on appeal on the basis Defendant now
does in this case, he must have “filed pretrial objections to the [charging instrument] or
demanded any additional pretrial specification of the charges”—i.e., seeking a bill of
particulars—before trial. Id. ¶ 16. A defendant who fails “to object to the indictment on
notice or due process grounds” is “precluded from first [doing so] after trial[.]” Id. Such is
the case here. In his briefing on appeal, Defendant does not indicate when or even if he
pursued a challenge to or sought specification of the charges against him under
principles of due process or notice. Moreover, the State contends he failed to do so, and
our review of the record supplies no such instance where he did. Given this, we decline
to resolve Defendant’s due process and double jeopardy challenges to the criminal
information, or further apply Lente. 6 Nonetheless, and particularly given the issuance of
Lente following Defendant’s first trial, Defendant and the State are free to pursue
whatever course of action they consider to be warranted under Lente on remand,
including issues related to the remaining charges contained within the criminal
information.

CONCLUSION

{29} For the foregoing reasons, we reverse Defendant’s convictions for twenty-one
counts of CSPM, one count of attempt to commit CSPM, and one count of intimidation
of a witness, and remand for a new trial on the CSPM and attempted CSPM charges.

{30}    IT IS SO ORDERED.

J. MILES HANISEE, Chief Judge

WE CONCUR:

JENNIFER L. ATTREP, Judge

BRIANA H. ZAMORA, Judge




6We decline to address Defendant’s challenge to the sufficiency of the evidence in light of our ruling in
this regard.