by Matt Clarke

The Supreme Court of New Mexico reversed two counts of criminal sexual contact with a minor and one count of child abuse under NMSA 1978, §§ 30-­9-­13(B)(1) (2003) and 30-­6-­1(D) (2009), after holding that the second trial on those charges violated the prohibition against double jeopardy because of prosecutorial misconduct in the first trial willfully disregarded the resulting mistrial.

Rudolph Amador was staying at the house of a friend when the friend’s 11-­year-­old child accused him of entering her bedroom at night and touching her vagina and buttocks. She woke up her father who kicked Amador out of the house. Amador was arrested and charged with the aforementioned counts.

The child testified that she woke up to Amador touching her. He left when she shifted away from him. Afterwards, she ran screaming to her father’s room.

The father testified that he was awakened by his screaming daughter and, once he ascertained what had happened, found Amador eating a corndog in the unlit kitchen. Amador denied touching the child, but the father told him to leave.

After the prosecutor rested, he advised defense counsel that Amador had a prior conviction for child abuse, and it would be used to impeach him should he take the stand.

When Amador took the stand to deny having touched the child and to suggest that it might have been a dream, defense counsel asked him whether he had ever been charged with a felony. He explained that he had been charged with child abuse in 2009 based on a fight with his 17-­year-­old stepson, had accepted a plea deal, and had served three years of probation. He also testified that his girlfriend had three daughters, and he had never been accused of any felonies involving them.

In his closing arguments, the prosecutor referred to Amador as a pedophile five times and started talking about a large scandal involving Catholic priests sexually assaulting children before the judge cut him off and summoned the parties to the bench to inform them that the argument was improper. Defense counsel did not object to the improper argument.

The prosecutor then spoke at length about the prior conviction, asked where the stepdaughters were, and gave a description of reasonable doubt that instructed the jury to convict if they had a reasonable doubt about leaving Amador alone in a house with a little girl. The court admonished the prosecutor that his comments regarding the stepdaughters was improper.

After the jury found Amador guilty, the prosecutor revealed that he did not have a prior conviction for child abuse but rather had a conditional discharge, which could not be used to impeach. The court granted a mistrial sua sponte based on “prosecutorial misconduct” and “visible ineffective assistance of counsel.”

The State retried the case, and Amador was convicted on all counts. He appealed on the basis of double jeopardy. The court of appeals affirmed. Aided by Chief Public Defender Bennet J. Baud and Assistant Appellate Defender Allison H. Jaramillo, Amador filed a petition for certiorari in the state Supreme Court that was granted.

The Court applied the standard of State v. Breit, 930 P.2d 792 (N.M. 1996), to the double jeopardy claim under Article II, Section 15 of the New Mexico Constitution. Under Breit, a second trial is barred: “(1) ‘when improper official conduct is so unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial or motion for new trial,’ (2) ‘the official knows that the conduct is improper and prejudicial,’ and (3) ‘the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.’”

The State conceded the first two prongs of the Breit test. The question was whether the prosecutor’s misconduct amounted to willful disregard of the resulting mistrial.

The Court explained that the only way to refute the child’s testimony was for Amador to testify, yet the State threatened to impeach him with “a prior conviction for child abuse,” leading defense counsel to introduce the prior charge on direct examination to soften the blow. After the verdict, the prosecutor admitted that it was a successfully completed conditional discharge. He said he did not know that a conditional discharge could not be used to impeach. In denying a defense Breit motion to prevent retrial, the trial court ruled that the prosecutor was, “negligently incorrect.”

The Supreme Court, however, disagreed with that assessment. It held that any competent prosecutor should know that a conditional discharge cannot be used to impeach and “that the admission of a misdemeanor or felony must be approached with great caution because it may cause undue, irreparable prejudice.” State v. Williams, 417 P.2d 62 (N.M. 1966).

The Court stated: “Simply stated, the danger is that the jury will believe that because the defendant has committed a crime in the past, the defendant is predisposed to commit crimes and return a conviction on this basis.” People v. Molineux, 61 N.E. 286 (N.Y. 1901); People v. Emmel, 127 N.E. 53 (Ill. 1920). And the Court continued: “It is also well recognized that the danger of prejudice is even more remarkable when the conviction of a prior crime for the same offense on trial is admitted because the jury might believe ‘if a defendant did it before, the defendant probably did it this time.’” State v. Fernandez,” 528 P.3d 621 (N.M. 2023).

The Court observed that the state Supreme Court instructed that there “must be a point at which lawyers are conclusively presumed to know what is proper and what is not” in State v. McClaugherty, 188 P.3d 1234 (N.M. 2008). “That point was reached in this case,” the Court concluded.

“If those responsible for enforcing the law do not understand basic evidentiary rules while wielding the considerable power of the State, it undermines the public’s confidence in the justice system. Tested against Breit’s objective standard, the prosecutor’s conduct was sufficiently egregious to trigger the bar of double jeopardy,” the Court reasoned.

The Court also held that the “district court failed to assess the totality of the circumstances properly…. The prosecutor referred to Defendant as a pedophile five times in his closing argument, referred to the Catholic Church clergy abuse scandal, argued that Defendant should have brought his stepdaughters to testify, and asked the jurors to shift the burden of proof and protect other children from Defendant. These arguments were also extremely prejudicial and improper.” See White v. State, 228 So.3d 893 (Miss. Ct. App. 2017). Therefore, the Court held that the second trial was barred by double jeopardy.

Accordingly, the Court reversed the court of appeals and remanded to the district court to vacate the conviction. See: State v. Amador, 546 P.3d 1277 (N.M. 2024).  

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