State v. Calderon

                                                                       Office of the
                                                                                              New Mexico
                                                                           Director           Compilation
                                                                                              Commission
                                                                        2023.12.22
                                                                   '00'07- 14:04:35
          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: August 17, 2023

No. A-1-CA-39537

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ADRIAN CALDERON,

       Defendant-Appellant.

APPEAL FROM THE METROPOLITAN COURT OF BERNALILLO COUNTY
Jill M. Martinez, Metropolitan Court Judge

Raúl Torrez, Attorney General
Maris Veidemanis, Assistant Attorney General
Santa Fe, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM

for Appellant

                                        OPINION

HENDERSON, Judge.

{1}     This case requires us to answer whether certain defendants who are prosecuted
in metropolitan court have a right to appeal the denial of a motion to dismiss after a
mistrial. The Legislature’s 2019 amendment to NMSA 1978, Section 34-8A-6 (2019),
created a right for defendants aggrieved by judgments rendered by the metropolitan
court in specific criminal actions to appeal directly to this Court. Section 34-8A-6(D). As
we explain below, that right is confined to appeals from final judgments and not
interlocutory orders like a denial of a motion to dismiss. There being no provision in the
New Mexico Constitution or statutes permitting such an appeal, we hold that defendants
like the one in this case may only appeal from a final judgment entered after retrial.
Defendant has not yet been retried and as such there is no final judgment from which to
appeal. Therefore, we dismiss Defendant’s appeal for lack of jurisdiction.

BACKGROUND

{2}     Defendant Adrian Calderon is charged with driving while under the influence and
improper use of registration. He was prosecuted in metropolitan court and had a bench
trial by video conference that ended prematurely after the court declared a mistrial sua
sponte. The mistrial was precipitated by the prosecutor, who, while trying to
authenticate a document showing the results of Defendant’s breath alcohol test,
revealed the results to the metropolitan court prior to admission into evidence.

{3}    Defendant subsequently filed a motion to dismiss, arguing that his right to be free
from double jeopardy under the United States and New Mexico Constitutions would be
violated by a second trial. He asserted that there was no manifest necessity for the
mistrial, and so retrial would be barred by State v. Yazzie, 

,

, 

. Defendant additionally argued that retrial was barred by
State v. Breit, because the mistrial was caused by prosecutorial misconduct. 1996-
NMSC-067, ¶ 32, 

, 

. After a hearing, the metropolitan court
denied Defendant’s motion, concluding that manifest necessity required the mistrial and
therefore retrial would not violate Defendant’s double jeopardy rights. Defendant filed an
application for interlocutory appeal based on Rule 12-203 NMRA and State v. Apodaca,

, 

, 

, and this Court placed his appeal on our
general calendar for full briefing.

DISCUSSION

{4}    “To invoke the jurisdiction of the Court of Appeals, the right to take an appeal
must be granted by the [c]onstitution or by statute.” State v. Armijo, 

, 

. In Apodaca, this Court held that a defendant has a constitutional right
to appeal from a district court order denying a motion to dismiss after a mistrial and
permitting retrial. 

. That right stems from Article VI, Section 2
of the New Mexico Constitution, which provides that “an aggrieved party shall have an
absolute right to one appeal.” See Apodaca, 

. The defendant in
Apodaca was such an aggrieved party, and their right to be free from double jeopardy
was “of the greatest importance” so as to justify invoking Article VI, Section 2. Apodaca,

.

{5}     While it may appear intuitive to extend Apodaca’s holding to this case, as
Defendant requests, the underlying basis for Apodaca’s holding is limited by our
constitution. Article VI, Section 2, the provision providing a constitutional right to one
appeal by an aggrieved party, by its own terms only applies to district courts. See State
v. Heinsen, 

, 

, 

 (recognizing that
Article VI, Section 2 “specifically applies to appeals from the district court rather than
from courts of limited jurisdiction”). And unlike the absolute right to one appeal in Article
VI, Section 2, the New Mexico Constitution only provides for the right to appeal final
judgments and decisions from the metropolitan court. See N.M. Const. art. VI, § 27
(“Appeals shall be allowed in all cases from the final judgments and decisions of the
probate courts and other inferior courts as provided by law.”); Armijo, 

 (“The metropolitan court is still a court of limited jurisdiction inferior to the district
courts.”). Because there are no constitutional provisions providing defendants in
metropolitan court an absolute right to one appeal, Apodaca’s holding cannot be
extended to this case.

{6}     Nor has our Legislature enacted a statute providing defendants the right to
immediately appeal from metropolitan court orders denying motions to dismiss after
mistrial. Section 34-8A-6 governs appeals from metropolitan court. Prior to 2019, the
statute provided for appeals only to the district court, and only from final judgments. See
§ 34-8A-6(C) (1993) (permitting appeals from “a judgment rendered by the metropolitan
court”); State v. Lizzol, 

, 

, 

 (clarifying
that under the 1993 version of Section 34-8A-6, appeals from the metropolitan court
could only be taken from final judgments), rev’d on other grounds, 

,

, 

. When Section 34-8A-6 was amended, the Legislature
changed the route of appeal to this Court in certain cases, but otherwise left unchanged
the requirement that such an appeal be from “a judgment rendered by the metropolitan
court.” Section 34-8A-6(D) (emphasis added). Furthermore, unlike NMSA 1978,
Section 39-3-3 (1972), which expressly permits appeals from certain interlocutory
orders as certified by the district court, Section 34-8A-6(D) contains no similar provision
permitting the metropolitan court to certify interlocutory orders. Absent such a
mechanism, defendants in metropolitan court may only appeal to this Court from final
judgments.

CONCLUSION

{7}    Given the absence of a constitutional or statutory provision providing Defendant
with the right to immediately appeal from a metropolitan court’s order denying his
motion to dismiss and permitting retrial, we dismiss his appeal.

{8}    IT IS SO ORDERED.

SHAMMARA H. HENDERSON, Judge

WE CONCUR:

KRISTINA BOGARDUS, Judge

JACQUELINE R. MEDINA, Judge

HENDERSON, Judge (specially concurring).

{9}   I write separately to emphasize my concern that the amendment to Section 34-
8A-6 has inadvertently diminished protections against double jeopardy for defendants
facing driving while under the influence of intoxicating liquor or drugs and domestic
violence charges in metropolitan court. This is because appeals from those cases now
come directly to this Court for an on-record review, but as this opinion recognizes, those
appeals must be from final judgments. See § 34-8A-6(D). That strict requirement,
without any exceptions similar to those provided for in criminal appeals from district
court, forecloses any adequate remedy parties like Defendant have in the event that the
metropolitan court erred by denying their motion to dismiss after a mistrial.

{10} In Apodaca, we recognized the curtailment of the right to be free from double
jeopardy unless a defendant could immediately appeal from motions to dismiss after
mistrials. Although Article VI, Section 2 guarantees one right to appeal, the provision
“must be given a practical construction,” and only certain “interests justify invocation of
the constitutional right to appeal when final judgment has not yet been entered.”
Apodaca, 

. “Such interests must be of the greatest
importance, given the countervailing powerful interest in avoiding piecemeal appeals.”
Id. ¶ 16. This Court held that a defendant’s right to be free from double jeopardy was
such an interest, and stated plainly how “a defendant’s right not to be subjected to a
second trial for the same offence could not be remedied once the second trial has taken
place.” See id.

{11} Indeed, the right to be free from double jeopardy is fundamental to our justice
system. Benton v. Maryland, 

 (1969). New Mexico courts have
repeatedly recognized that the right to be free from double jeopardy protects defendants
from facing multiple trials that would permit the state to artificially increase the chance of
conviction; it protects people from being unduly subjected to the expense,
embarrassment, anxiety, and insecurity caused by multiple trials; and it protects the
accused’s interest in finality of the criminal charges against them. State v. Mares, 1979-
NMCA-049, ¶ 18, 

, 

; State v. Lujan, 

, ¶ 20,

, 

; State v. Davis, 

, 

, 

. But those protections are “lost if the accused were forced to ‘run the gauntlet’
a second time before an appeal could be taken,” because “even if the accused is
acquitted, or, if convicted, has [their] conviction ultimately reversed on double jeopardy
grounds, [they have] still been forced to endure a trial that the Double Jeopardy Clause
was designed to prohibit.” Abney v. United States, 

 (1977).

{12} Although the law compels our dismissal of Defendant’s appeal and requires us to
reject his invitation to extend Apodaca for the reasons stated in this opinion, much of the
analysis in Apodaca and other cases addressing double jeopardy apply to Defendant’s
case in full force. Defendant could undoubtedly appeal to this Court after he is subjected
to another trial and receives a final judgment. See § 34-8A-6(D). This is, as has been
recognized, unsatisfactory. Defendant will be forced to run through the gauntlet again,
bearing entirely the attendant expense, embarrassment, anxiety, and insecurity inherent
in all criminal trials. Even if his second trial ends prematurely, the metropolitan court
could permit retrial again before Defendant ever makes it to this Court. And in the event
of a conviction, Defendant may face significant jail time due to a trial that may be
constitutionally impermissible.
{13} However, the fact remains that appellate review is not an inherent right. It is one
created—and limited—by our constitution and statutes. Armijo, 

;
see also State v. Smallwood, 

, 

, 

(recognizing that our Supreme Court cannot create appellate jurisdiction through its rule
making authority). Because nothing in our constitution or statutes provides Defendant
the right to appeal from the metropolitan court’s order denying his motion to dismiss, the
law as it currently stands does not permit him to invoke our jurisdiction at this time.

SHAMMARA H. HENDERSON, Judge