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State v. House11/20/1997
conclude during the jury selection process that a fair and impartial jury cannot be obtained in Taos County. In that event, the district court must necessarily reconsider alternate venues. Nothing in this opinion should be construed to suggest that Doa Ana County, or any other county, is or is not a proper alternate venue. At the same time, both sides will be free to advocate for any alternate venues they deem appropriate, and the district court should again devote its thoughtful and determined consideration to any constitutional arguments the parties may raise concerning alternative venues.
III. OTHER ISSUES
{54} Although we are remanding for a new trial in light of our Discussion on the change of venue issue, we also address the following issues because they either have the potential of affording Defendant greater relief on appeal or will necessarily recur on retrial.
A. Motion To Dismiss
{55} Following the second mistrial, Defendant moved to dismiss the remaining charges on the grounds of prosecutorial misconduct, cruel and unusual punishment, and denial of due process. Defendant first points out that New Mexico does not have any case law on point, and he asks this Court to establish the standards to determine when dismissal is appropriate after multiple hung juries. However, Defendant does not specifically argue that the district court used inappropriate factors, and the State points out that the district court derived the factors it used from out- of-state cases cited by Defendant. See State v. Abbati, 493 A.2d 513 (N.J. 1985); State v. Witt, 572 S.W.2d 913 (Tenn. 1978). Under the circumstances, this Court will not reach out to decide whether the factors considered by the district court were correct when Defendant has failed to adequately raise such an issue. See ) (issues must be adequately argued in brief). We simply assume, without deciding, that the district court considered the appropriate factors in reaching its decision to deny Defendant's motion to dismiss.
{56} Defendant also proceeds on the assumption that, even if the district court used the right factors, it applied them incorrectly. Again, Defendant's arguments and citations to the record are inadequate. See id. Defendant does, however, refer to six of the eight factors considered by the district court as points of potential error which we will briefly address.
{57} The first factor mentioned by Defendant concerns the number of prior mistrials and the outcome of jury deliberations. Defendant suggests that the district court incorrectly considered the fact of two nearly identical hung juries because the similar hung juries suggested that a similar result would occur on retrial. However, the district court also took into account the fact that 75% of each jury voted to convict. As such, the court reasonably believed that it was not highly unlikely that the State would succeed at a new trial. Defendant also argues the district court failed to consider the effect of the district attorney's improper comments on the outcome of the first two trials, but later Defendant argues that the district court considered the district attorney's conduct under the wrong factor, i.e., hardship on Defendant. Whether that is true, we are confident that the district court considered the district attorney's conduct in reaching its ultimate decision.
{58} Defendant also argues that the district court's decision not to hold an evidentiary hearing was erroneous because the court's refusal to hear from former jurors was a critical loss since the district court had a negative view of the jurors. Even assuming the record would support Defendant's allegation that the district court had a neg
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