STATE of New Mexico, Plaintiff-Appellee, v. Charles Isaac McCLAUGHERTY, Defendant-Appellant, 141 N.M. 468

OPINION WECHSLER, Judge. {1} Our Supreme Court reversed Defendant’s convictions in State v. McClaugherty, 2003-NMSC-006, 133 N.M. 459, 64 P.3d 486, for the State’s improper use of hearsay evidence in the course of cross-examining Defendant. Id. ¶¶ 3, 16, 35. The trial prosecutor asked Defendant to comment on alleged statements witnesses made to police relating Defendant’s admissions that he shot a gun during the incident. Id. ¶¶ 11, 14. On remand to the district court, Defendant promptly moved to bar retrial for prosecutorial misconduct under State v.

Breit, 1996—NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792. {2} The district court originally dismissed the indictment against Defendant, finding that the prosecutor had misrepresented the contents of the statements. The State timely appealed the dismissal, but later sought to dismiss its appeal and reopen the motion hearing to allow the presentation of other evidence. The district court granted the State’s motion to reopen, heard more evidence in a succession of hearings, vacated its dismissal, and ordered a new trial in the case. From this order, Defendant now appeals.

First, he asserts that NMSA 1978, § 39-1-1 (1953), operated to deny the State’s motions to dismiss the appeal and to reopen the evidence that were pending before the district court by operation of law because more than thirty days elapsed from their filing to their resolution. Because Defendant does not appeal the grant of the State’s motion to reopen, we do not address whether that motion was properly granted. Second, Defendant argues that pursuant to the New Mexico Constitution and Breit, the district court erred in allowing retrial. We affirm the district court.

FACTS AND PROCEDURAL BACKGROUND The Trial and Appeal to the Supreme Court {3} Defendant was tried and convicted of a number of serious crimes, including the first-degree (deliberate and felony) murder of Ricky Solisz. The critical issue was whether Defendant “shot,” and the only direct evidence of it came from the State’s informant. McClaugherty, 2003-NMSC-006, ¶¶ 9-10, 133 N.M. 459, 64 P.3d 486. Defendant was the last witness to testify at trial and denied on direct examination that he was armed or fired a gun.

Id. ¶ 10. {4} In the cross-examination, the prosecutor, Kenny Montoya, questioned Defendant about his conversations with Sarah Tucker and Sherri Goen immediately after the shooting. When Defendant testified that he told them “I was there and I ran,” the prosecutor asked, “Is that all you told them?” At that point, the prosecutor asked Defendant, ‘You’re aware I’ve got statements?” and “[W]hy are they lying about you then?” The prosecutor then asked Defendant if he would be surprised that Tucker’s and Goen’s statements to the police indicated that Defendant admitted to them that he shot during the incident.

This questioning continued through defense objections that the prosecutor was eliciting extrinsic evidence and hearsay. {5} During re-direct examination, Defendant disagreed with the prosecutor’s version of those statements and testified that he had read the women’s statements and that they contained references to his denying any shooting. The prosecutor objected during the re-direct examination, arguing to the district court that defense counsel was eliciting a lie and stating, “[Defendant] said he shot. Do you want me to let that go? ...

They both admit that he said he shot at the guys.” {6} Neither Tucker nor Goen was called to testify at trial, and the statements that they made to the police were never admitted into evidence or presented to the district court. The State did not present rebuttal evidence, and the trial ended.

The alleged “admissions” were not mentioned during closing arguments or at any other time during the trial. {7} The Supreme Court reversed Defendant’s convictions and held that the prosecutor’s cross-examination constituted an impermissible use of hearsay that sufficiently prejudiced the course of the trial to an extent that required reversal. Id. ¶¶ 3, 16, 35. The Supreme Court remanded the case for a new trial. Id. ¶ 35.

Motion to Bar Reprosecution and the State’s Appeal {8} Upon remand for trial from the Supreme Court, Defendant filed a motion to impose a double jeopardy bar to retrial, alleging that the prosecutor had committed misconduct sufficient to trigger Defendant’s rights to be free from double jeopardy under the New Mexico Constitution and Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792. Defendant alleged misconduct insofar as the prosecutor improperly used hearsay in the prosecutor’s cross-examination and grossly misrepresented the contents of the statements in his questions.

The State denied that the prosecutor had acted in “willful disregard” of the consequences of his actions. {9} At the May 6, 2003 hearing on Defendant’s motion to bar retrial, Defendant introduced the statements Tucker and Goen made to the police, which were admitted as evidence by the district court. The State did not present witnesses or evidence at this hearing. The State conceded that the trial questioning by the prosecutor based on the witness statements was improper, but argued that in the context of the entire trial, such misconduct was isolated, was based on a good faith

interpretation of the statements, and consequently did not merit barring reprosecution of Defendant under Breit. {10} The district court reviewed the police statements given by Tucker and Goen and the trial transcript. It found that their statements were that Defendant “did not shoot and was not the shooter” and that the prosecutor had “grossly misrepresented” the content of the statements to the district court during trial. The district court concluded that had it known of the extent of the State’s misconduct at the time, it would have granted a mistrial.

The district court found that the prosecutor “was actually aware, or must be presumed to have been aware, that his misconduct had the potential to result in a mistrial or a reversal,” and that he had made a “conscious and purposeful decision to dismiss any concern” of such a result. The district court granted Defendant’s motion, barred reprosecution, and dismissed the indictment with prejudice. The State timely filed its notice appealing this order on May 12,2003.

The State’s Effort to Reopen the Evidence {11} On May 27, 2003, the State filed a motion to dismiss the appeal and a motion to reopen hearing as to barring of prosecution. It offered the testimony of the trial prosecutor that it stated “will be in direct contrast to the Court’s findings in its Order of Dismissal.” Remand by the Court of Appeals for Action on the State’s Motions {12} During this same period, Defendant applied to this Court for a dismissal of the State’s appeal because the State had not timely filed its docketing statement. See Rule 12-208(

B) NMRA. We denied the motion to dismiss the appeal and remanded to the district court, directing that if the district court denied the pending motions, the State could file a docketing statement if it still desired to pursue its appeal. This Court did not comment on the effect, validity, or merits of the pending motions.

The Reopened Hearing {13} On July 25, 2003, after the State filed its notice of appeal and subsequent motions, and following remand from this Court, the district court granted the State’s motions to dismiss the appeal and reopen the case, stating that it had discretion “to hear any additional matters that may not have been raised initially when the motion hearing was heard” on May 6.

Defendant objected to this ruling, and the district court commenced to take evidence. {14} The trial prosecutor testified that his questioning of Defendant was based on Goen’s statement of June 19, 1999, as well as a number of other unidentified statements. He agreed that his questioning of Defendant referred to “copies of statements” and that there was no statement by either Tucker or Goen other than the June 19 statements that 'was ever reduced to writing.

He stated that his question — “So why are they lying about you then?” — referred to “all the statements I had in my hand,” including other witnesses than Tucker and Goen. He stated that he resumed his cross-examination after Defendant’s objection and a bench conference, asking Defendant, “[Wjould it surprise you to hear that [Tucker] gave a statement to the police 6/19/99” and later asking, “How about your roommate, Sherri Goen? Does it surprise you that she also made the same statement^] ... That you admitted shooting? ...

Bragged about it?” {15} The prosecutor testified that Tucker’s description of the night of the fight and its inconsistencies gave him his basis for his question about Tucker. He pointed out that Goen’s June 19 statement indicated that Defendant “said he shot them,” but conceded that Goen immediately stated to police, “[n]ot him but the guys that are with him,” and she then specifically denied that Defendant himself admitted shooting the victim.

However, the prosecutor testified that he based his questions on the statement Goen gave in his office in which she said Defendant “bragged about it.” {16} The prosecutor recalled the defense objection and bench conference. He stated, “I think [Defendant’s trial attorney] was saying that I was eliciting hearsay and I said I wasn’t. I wasn’t going to admit the evidence.

I just wanted — and [the district court] actually told me how to form it in a better way.” “I think it was very important that I knew when I brought those questions up that Sherri Goen was in my office, said that [Defendant] went up bragging that he killed him and it was him. He did the shooting.” The prosecutor testified that during re-direct examination of Defendant, his argument to the bench — “He said he shot. Do you want me to let that go? ...

They both admit that he said he shot at the guys,” — was based on Tucker’s June 19 statement, Goen’s June 19 statement, and Goen’s pretrial interview in his office. {17} The State offered an affidavit from Goen dated July 23, 2003, as an exhibit during its redirect examination of the prosecutor, and the defense objected to it as hearsay. The State offered that the affidavit “goes also to Mr. Montoya’s reliance on Sherri Goen.” The district court admitted the affidavit.

It then admitted, without objection, a February 2000 pretrial interview notice as evidence that the prosecutor met with Goen. {18} The prosecutor testified that Goen had come to the district attorney’s office in 2000 and given a pretrial statement: Myself, a defense attorney was there ... I’m sure I either had a female in there or female coming in because Sherri was a — I believe there’s somebody else. I couldn’t tell you who it is. Sherri Goen came in, broke down very quick, started crying, saying “I’m very afraid, got to let you know what happened.

He came up, he was bragging that he shot him.” He said “we did it.” It’s very short in her conversation with us because she was so definite that he admitted to not just shooting, but bragging about it. At that point, it stopped. I don’t have any notes to show you about it. There’s not a tape. I asked Erica Garcia, my old secretary, to look for a tape. The way I usually run things like that, the [djefense attorney was there, he’s taping it himself. I believe, it was Bustamante, the [d]efense attorney and at that time, went out and we agreed on a plea because Ms.

Goen was so definite____ {19} The prosecutor stated that a police officer had to be sent to bring Goen in, and that “there were a number of people in that interview.” He recalled a defense attorney, Ed Bustamante; a “female;” and “a detective or our own investigator.” He testified that this interview lasted less than two minutes.

As to the basis for his questions, the prosecutor said that “there was very solid evidence especially with [Tucker] and [Goen], I believe, saying it in front of me, ‘He admitted to shooting and he was bragging about we shot them.’ ” {20} Defendant’s former attorney Ed Bustamante was called as a witness and testified that he represented Defendant in 2000, but did not recall ever being present at a pretrial interview with Montoya and Goen. He testified that it is his practice to record and preserve the recordings of such interviews.

He recalled that Goen was “an important witness” and that her interview was “rescheduled a lot,” but he did not believe she was ever interviewed. {21} Other evidence established that the State offered a plea to Defendant on April 27, 2000. Interviews had been scheduled for Goen for February 24, 2000 and August 29, 2000. Montoya sent Bustamante a list of witnesses, including Goen, for an interview he planned to hold on August 16, 2000. The State called attorney Sandra Barnhart y Chavez, who testified that she represented Goen and had been contacted by a faxed subpoena dated August 29, 2000.

Barnhart y Chavez recalled that the prosecutor, Goen, and she were the only persons present. The meeting took place for not more than an horn1 and was conducted in the prosecutor’s personal office. Barnhart y Chavez did not recall the substance of Goen’s statement. {22} Following these hearings, the district court stated that it had come to have doubts as to whether the Breit test had been satisfied.

The district court remained convinced that if it had the transcripts of the two witness statements at trial, it would have granted a mistrial because it would have considered any curative instruction inadequate, thus meeting that element of the Breit test. The district court continued: With respect to the third prong, it talks about the prosecutor’s acts must be in willful disregard, you know, and [Breit] defines what willful disregard means.

In other words, I have to ask the question, was he actually aware of the potential consequences of his actions or even if he’s presumed to be aware of the potential consequences. And, again, I don’t think that it has risen to that level based upon the new information that I received. And certainly in the May hearing, if I’d have had all of this information before me, I think I probably would have been in a better position to make the decision. ... I don’t think that the last two prongs of [Breit ] have been met.

When it talks about the prosecutor in this fashion, it’s talking about a prosecutor who knowingly and willfully does something improper; that he or she knows the conduct is improper and knows that a mistrial could result and purposely does that to gain some sort of advantage somehow. And after listening to Mr. Montoya and the other evidence, I don’t think that it’s come that far. {23} The district court entered its order on September 29, vacating the May 8 order of dismissal and denying Defendant’s motion to bar further prosecution and to dismiss.

The district court also certified this ease for interlocutory appeal pursuant to NMSA 1978, § 39 — 3—3(A)(3) (1972), directing the State to draft the appropriate order. Defendant filed his timely notice of appeal of the order. THIS COURT’S JURISDICTION OF THIS APPEAL {24} We initially address the State’s motion to dismiss this appeal for lack of jurisdiction. Defendant brings this appeal under State v. Apodaca, 1997-NMCA-051, 123 N.M. 372, 940 P.2d 478.

Apodaca holds that a defendant has a right to directly appeal the denial of a motion to dismiss charges that the defendant claims violate constitutional double jeopardy protections. Id. ¶ 17. Under Breit, the double jeopardy clause of the New Mexico Constitution bars a retrial if the state has engaged in an extreme level of improper official conduct in the first trial.

Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792. {25} The State contends that Apodaca does not apply in this case because Defendant’s trial did not end in a mistrial as in Apodaca and that, therefore, Defendant’s appeal concerns, only the district court’s ruling on a non-final motion involving prosecutorial misconduct, a due process issue, not double jeopardy. We do not agree. {26} Apodaca grants Defendant the right to directly appeal the district court’s order to this Court. See Apodaca, 1997-NMCA-051, ¶ 17, 123 N.M. 372, 940 P.2d 478; see also State v.

McDonald, 2003-NMCA-123, ¶ 24, 134 N.M. 486, 79 P.3d 830 (holding that a denial of a motion to prevent retrial on double jeopardy grounds is “directly reviewable” under Apodaca, even when the trial ended with the jury deadlocked on the charges at issue instead of a mistrial), rev’d in part on other grounds, 2004-NMSC-033, 136 N.M. 417, 99 P.3d 667. Prosecutorial misconduct and double jeopardy principles are inextricably linked in this context.

See Breit, 1996-NMSC-067, ¶ 15, 122 N.M. 655, 930 P.2d 792. “[Wjhen a trial is severely prejudiced by prosecutorial misconduct, the double-jeopardy analysis is identical, whether the defendant requests a mistrial, a new trial, or, on appeal, a reversal.” Id.; see State v. Lynch, 2003-NMSC-020, ¶ 1, 134 N.M. 139, 74 P.3d 73 (reversing the denial of a double jeopardy claim against a new indictment on remand).

Article VI,

Section 2 of the New Mexico Constitution confers the right to appeal from the denial of a motion to bar reprosecution because the right to be free from double jeopardy is lost if a new trial takes place. See Apodaca, 1997-NMCA-051, ¶¶ 15-16, 123 N.M. 372, 940 P.2d 478. {27} The Supreme Court reversed Defendant’s convictions in this case owing to the prosecutor’s improper use of hearsay statements in cross-examining Defendant. See McClaugherty, 2003-NMSC-006, ¶¶ 3,16, 35, 133 N.M. 459, 64 P.3d 486.

Defendant asserted in his motion that because the hearsay statements as represented at trial by the prosecutor were falsely stated, misleading, and prejudicial to Defendant’s rights, the misconduct was sufficient to raise a double jeopardy bar to retrial. The district court granted and then denied Defendant’s motion. The denial of the motion below is all that is required by Apodaca to confer jurisdiction on this Court to hear an immediate direct appeal. See State v. Astorga, 2000-NMCA-098, ¶ 1, 129 N.M. 736, 13 P.3d 468.

We have jurisdiction to hear the appeal, and the State’s motion to dismiss Defendant’s appeal is accordingly denied. JURISDICTION OF THE DISTRICT COURT {28} On May 8, 2003, the district court dismissed the indictment on double jeopardy grounds after its initial hearing on May 6, 2003. The State filed its notice of appeal on May 12, 2003. On May 27, 2003, the State filed two motions in the district court. It moved to voluntarily dismiss its appeal, and it moved to reopen the hearing on Defendant’s motion to bar further prosecution.

This Court remanded the case to the district court for the limited purpose of ruling on the State’s pending motions on July 17, 2003. The district court granted the State’s motion to dismiss the appeal and motion to reopen the hearing on barring of reprosecution on July 25, 2003.

Subsequently, on September 29, 2003, after a hearing, it entered its order vacating its May 8, 2003 order of dismissal and denied Defendant’s motion to bar further prosecution. {29} Defendant contends that the district court lacked jurisdiction to address the State’s motions to dismiss the appeal and to reopen the May 8, 2003 order based on the operation of

Section 39-1-1.

Section 39-1-1 reads in pertinent part: Final judgments and decrees, entered by district courts in all cases tried pursuant to the provisions of this

section shall remain under the control of such courts for a period of thirty days after the entry thereof, and for such further time as may be necessary to enable the court to pass upon and dispose of any motion which may have been filed within such period, directed against such judgment; provided, that if the court shall fail to rule upon such motion within thirty days after the filing thereof, such failure to rule shall be deemed a denial thereof}.] The State contends that

Section 39-1-1 did not restrict the district court’s ability to act on the State’s motion because its notice of appeal divested the district court of jurisdiction to act on issues directed to the district court’s ruling on appeal as long as the appeal was pending. The State relies on a line of cases holding that the filing of a notice of appeal removes the case from the district court’s jurisdiction except to rule on motions directed to the judgment that are pending at the time of the filing of the notice of appeal, motions in connection with perfecting the appeal, or motions collateral to the judgment.

See Kelly Inn No. 102, Inc. v. Kapnison, 113 N.M. 231, 241-43, 824 P.2d 1033, 1043-45 (1992). {30} We therefore must resolve the tension between

Section 39-1-1 and case law addressing the effect of the filing of a notice of appeal. We do so as a matter of statutory

interpretation that we review de novo on appeal. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). {31}

Section 39-1-1 applies to judgments that dispose of a case without a jury verdict. See Valley Bank of Commerce v. Hilburn, 2005-NMCA-004, ¶ 18, 136 N.M. 741, 105 P.3d 294. It applies in criminal cases. See State v. Gonzales, 110 N.M. 218, 226, 794 P.2d 361, 369 (Ct.App.1990) (applying

Section 39-1-1 to the state’s motion to reconsider a district court’s dismissal of an indictment), aff'd, 111 N.M. 363, 805 P.2d 630 (1991). {32} Substantially similar versions of

Section 39-1-1 have been in effect for many years. See, e.g., Pugh v. Phelps, 37 N.M. 126, 127-28, 19 P.2d 315, 316-17 (1932) (citing the 1929 version of

Section 39-1-1). The original thrust of

Section 39-1-1 was to abrogate law that stated that a trial court lost jurisdiction of cases immediately upon filing its final judgment. See, e.g., Norment v. First Nat’l Bank of Santa Fe, 23 N.M. 198, 202-03, 167 P. 731, 732 (1917).

Section 39-1-1 also reconciled such a rule with the common law rule that judgments were within the control of the court and could be modified until the end of the term of court in which they were issued. See State v. Neely, 117 N.M. 707, 708 n. 1, 876 P.2d 222, 223 n. 1 (1994). A long line of cases has described how the abolition of terms of court destroyed the control the district courts once had over their judgments. See, e.g., Pugh, 37 N.M. at 128, 19 P.2d at

Section 39-1-1 “restored to district courts, during the period of 30 days, the control which they formerly had over their judgments during term time.” Pugh, 37 N.M. at 128, 19 P.2d at 317 (internal quotation marks and citations omitted); see also King v. McElroy, 37 N.M. 238, 243, 21 P.2d 80, 83 (1933) (stating that the district court lost control of its judgments after they were rendered “except for the 30-day period of additional control specified” by

Section 39-1-1) (internal quotation marks and citation omitted). {33} Although

Section 39-1-1 has been discussed in the context of jurisdiction, by its language and history,

Section 39-1-1 does not grant jurisdiction to the district court, but, rather, limits the period of time that a district court may act on a case over which it has jurisdiction. It is the constitution that grants the district court its jurisdiction. N.M. Const, art. VI, § 13. {34} Entirely separate from

Section 39-1-1, our Supreme Court has clearly limited the ability of the district court to act in a case before it after a notice of appeal is filed. In Kelly Inn, 113 N.M. at 240-44, 824 P.2d at 1042-46, our Supreme Court addressed the authority of the district court to rule upon a motion for attorney fees after the filing of the notice of appeal.

It stated the general rule that a district court “loses jurisdiction of the case upon the filing of the notice of appeal, except for the purposes of perfecting such appeal, or of passing upon a motion directed to the judgment pending at the time.” Id. at 241, 824 P.2d at 1043 (internal quotation marks and citation omitted). It noted exceptions to the general rule when the district court acts on issues “collateral to or separate from the issues resolved in the judgment.” Id. at 244, 824 P.2d at 1046.

It held that the attorney fee issue before it did not require the district court to alter or revise decisions contained in its judgment such that the district court did not lose its ability to rule on attorney fee issues after the filing of the notice of appeal or after the expiration of the thirty-day period of

Section 39-1-1. Kelly Inn, 113 N.M. at 243-44, 824 P.2d at 1045-46. As a result of Kelly Inn, the district court cannot act on a motion filed after a notice of appeal except to perfect the appeal or rule on a matter collateral to the judgment or order on appeal. Id. at 244, 824 P.2d at 1046. {35} In this case, the State filed its notice of appeal before it filed its motions to dismiss the appeal and to reopen the case. Its motion to reopen was directed to the district court’s order that was subject to the notice of appeal. The motion to reopen therefore was not collateral to the order subject to the appeal.

See id. at 241-43, 824 P.2d at 1043-45. Our Supreme Court did not recognize any exception in Kelly Inn to the general rule that the filing of the notice of appeal divests the district court of its ability to rule on a motion directed to the judgment or order subject to the appeal that was filed after the notice of appeal. See id. at 241-44, 824 P.2d at 1043-46. {36} Indeed, the lack of such an exception makes sense. Otherwise, a losing party may proceed to attack a judgment both in this Court and in district court, causing inefficiency in the process.

This Court recognized such an inefficiency in this case when, after the filing of the notice of appeal and Defendant’s motion to dismiss the appeal, it remanded the case to the district court for the limited purpose of. ruling on the State’s pending motions. At that point, this Court reinstated the district court’s control of the case with respect to those motions. {37}

Section 39-1-1 does not controvert this analysis. Although

Section 39-1-1 limits a district court’s time to act on a post-judgment motion, it clearly allows the court to act on such motions. Yet, in the circumstances of this case, in which the State filed its notice of appeal before its motion to reopen, the district court no longer had any ability to act on the motion. {38} We interpret a statute to achieve the result intended by the legislature, and we will not construe a statute in a way that renders its application “absurd, unreasonable, or unjust.” Rowell, 121 N.M. at 114, 908 P.2d at 1382 (internal quotation marks and citation omitted).

New Mexico’s earliest cases recognize that jurisdiction of the appellate court attaches on appeal. See Canavan v. Canavan, 18 N.M. 468, 470, 138 P. 200, 201 (1914) (stating that jurisdiction of the Supreme Court attached “upon the allowance of the appeal or the issuance of the writ of error”); Abeytia v. Spiegelberg, 20 N.M. 614, 617, 151 P. 696, 697 (1915) (stating that the Supreme Court had jurisdiction of the cause upon the allowance of the appeal, the procedure at that time to bring an appeal); Pankey v. Hot Springs Nat’l Bank, 42 N.M. 674, 682, 84 P.2d 649, 654 (1938) (same).

Our Supreme Court did not even originally recognize a district court’s ability to entertain a motion directed to a judgment pending when jurisdiction transferred to the Supreme Court on appeal. See State v. White, 71 N.M. 342, 346, 378 P.2d 379, 382 (1962) (stating the general rule that the district court lost jurisdiction except to perfect the appeal was modified to include the right “to pass upon a motion for new trial or modification of the judgment which was pending at the time the appeal was taken”). We do not believe that by enacting

Section 39-1-1 or its predecessors the legislature ever intended the inefficiency of dual jurisdiction over the judgment or order on appeal that enables a losing party to file, and the district court to then entertain, motions directed to the judgment or order on appeal once the appellate court has jurisdiction of the case. We will not construe

Section 39-1-1 to apply to such motions over which the district court has no ability to act. {39} The cases upon which Defendant relies are not on point. They recognize that by virtue of

Section 39-1-1 a motion can be deemed denied so as to affect the timeliness of an appeal or the record on appeal. See Wagner Land & Inv. Co. v. Halderman, 83 N.M. 628, 629-30, 495 P.2d 1075, 1076-77 (1972) (holding, among other holdings sufficient to resolve the appeal, including the lack of jurisdiction of the district court to act after the allowance of the appeal, that findings of fact and conclusions of law were not before the court on appeal because the district court had not acted on a motion to file them within thirty days as required by the predecessor statute to

Section 39-1-1); Nat’l Am. Life Ins. Co. v. Baxter, 73 N.M. 94, 99-100, 385 P.2d 956, 960 (1963) (per curiam) (holding that the district court lacked the authority to act on a motion after the allowance of an appeal and noting that under the predecessor statute to

Section 39-1-1 a motion set for hearing but not decided within thirty days would be denied by operation of law); Chavez-Rey v. Miller, 99 N.M. 377, 381, 658 P.2d 452, 456 (Ct.App.1982) (holding that the notice of appeal was not timely filed because it was not filed within thirty days of the day the motion for a new trial was deemed denied under

Section 39-1-1). But Defendant has not cited any case, and we have found none, in which

Section 39-1-1 or its predecessors have been applied to a motion directed to the judgment or order on appeal filed after an appeal has been commenced. See Halderman, 83 N.M. at 629, 495 P.2d at 1076 (notice of appeal and motion at issue seeking relief from judgment, or, in the alternative, allowing filing of requested findings of fact and conclusions of law filed on same day); Baxter, 73 N.M. at 99, 385 P.2d at 960 (motion at issue filed prior to allowance of appeal); Miller, 99 N.M. at 381, 658 P.2d at 456 (motions at issue filed prior to notice of appeal).

The district court simply does not have the ability to act on such a motion. {40} Because the district court could not have acted on the State’s motion to reopen the hearing until the appeal was dismissed, it was not deemed denied under

Section 39-1-1. The district court had authority to grant the motion on July 25, 2003. MERITS OF MOTION TO REOPEN {41} Although the dissent argues that the motion to reopen should not have been granted, we do not address the merits of that argument. Defendant did not raise it on appeal. See, e.g., State v. Rendleman, 2003-NMCA-150, ¶ 50, 134 N.M. 744, 82 P.3d 554 (stating that issues not raised in appellant’s brief-in-chief are deemed abandoned). Although we requested supplemental briefing on the merits of the motion to reopen, we prefer not to reach issues not initially raised by the parties. See State v.

Ferguson, 111 N.M. 191, 196, 803 P.2d 676, 681 (Ct.App.1990) (“Courts should not take it upon themselves to raise, argue, and decide legal issues overlooked by the lawyers.”).

MERITS OF MOTION TO BAR RETRIAL {42} As set forth in Breit, under the New Mexico Constitution, we employ a three-part test to establish whether double jeopardy bars reprosecution as a result of prosecutorial misconduct: (1) the improper prosecutorial conduct must be “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) “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.” Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792; see State v.

Haynes, 2000-NMCA-060, ¶ 5, 129 N.M. 304, 6 P.3d 1026. On appellate review, the analysis presents a mixed question of law and fact. We defer to the district court when it has made findings of fact that are supported by substantial evidence and review de novo the district court’s application of the law to the facts. State v. Attaway, 117 N.M. 141, 144, 870 P.2d 103, 106 (1994), modified on other grounds by State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d 80; State v.

Armijo, 118 N.M. 802, 811, 887 P.2d 1269, 1278 (Ct.App.1994). {43} Double jeopardy bars reprosecution in only the rare and exceptional occasion; it is an “exceedingly uncommon remedy.” Breit, 1996-NMSC-067, ¶ 35, 122 N.M. 655, 930 P.2d 792. It applies in only the cases of “the most severe prosecutorial transgressions.” State v. Gonzales, 2002-NMCA-071, ¶ 14, 132 N.M. 420, 49 P.3d 681.

In most circumstances in which a defendant requests a mistrial or retrial based on evidentiary error, a new trial serves to rectify the error. {44} The district court concluded that the first part of the Breit test was met in this case, but that the second and third parts were not. If any of the three parts of the Breit test is not met, double jeopardy does not bar retrial.

Because we do not believe that the third part has been met, we do not analyze the other parts in this ease. {45} The third part of the Breit test requires that the prosecutor “either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.” Breit, 1996-NMSC-067, ¶ 32, 122 N.M. 655, 930 P.2d 792. Without an intent to provoke a mistrial, “the misconduct necessary to bar a retrial must be extraordinary.” State v. Foster, 1998-NMCA-163, ¶ 21, 126 N.M. 177, 967 P.2d 852.

Defendant does not contend that the prosecutor intended to provoke a mistrial, but instead asserts that the prosecutor acted in willful disregard of the resulting mistrial, retrial, or reversal.

According to Defendant, the prosecutor “must be presumed [under Breit ] to have been aware that if he injected inadmissible hearsay into the trial and misrepresented out-of-court statements, manufacturing nonexistent confessions by the defendant, a mistrial or reversal could occur.” While we agree with Defendant that the prosecutor acted improperly as determined by our Supreme Court and that a prosecutor is presumed to be aware of the potential consequences of the prosecutor’s acts under Breit, 1996-NMSC-067, ¶ 34, 122 N.M. 655, 930 P.2d 792, we do not agree that the prosecutor’s actions in this case meet the extraordinary standard required to bar reprosecution based on double jeopardy concerns. {46} The cases that hold that a prosecutor engaged in acts in willful disregard of the potential consequences of a mistrial or retrial serve as examples.

In Breit, the prosecutor’s misconduct was pervasive throughout the trial. It began with unsupported allegations in opening statement, continued throughout the trial despite the district court’s direct admonitions, persisted in closing, and even included inappropriate post-trial conduct. Id. ¶¶ 41^44. The prosecutor’s misconduct involved statements and actions attacking the merits of the defense and defense counsel as well as verbal and nonverbal conduct that affected the atmosphere of the trial. Id. ¶¶ 42-44. Our Supreme Court examined the totality of the circumstances of the trial. Id. ¶40.

It relied on the findings of the district court as corroborated by the record. Id. ¶ 37. It concluded that although separately the prosecutor’s actions would unlikely bar retrial, the conduct was “unrelenting and pervasive.” Id. ¶ 45. It therefore concluded that to avoid “an acquittal at any cost, it appears that among the costs the prosecution was willing to incur were a mistrial, a new trial, or a reversal on appeal.” Id. ¶ 48. {47} In State v.

Huff, 1998-NMCA-075, 125 N.M. 254, 960 P.2d 342, this Court found that the prosecutor acted in willful disregard of a resulting mistrial, but it concluded that double jeopardy did not bar retrial because the first part of the Breit test was not met. Huff, 1998-NMCA-075, ¶¶ 22-24, 25, 125 N.M. 254, 960 P.2d 342. The conduct at issue in Huff was the continued questioning of a doctor in a criminal sexual contact case about the doctor’s post-traumatic-stress-disorder diagnosis of the victim. Id. ¶¶ 22-23.

The prosecutor knew that the diagnosis was probably not based on sexual abuse involving the defendant and that the diagnosis “was based on incomplete information that did not include the incidents” charged. Id. ¶22. The district court repeatedly sustained defense objections, held bench conferences, and warned the prosecutor to limit her questions. Id. ¶¶ 22-23. Because the prosecutor nevertheless persisted with the questioning, even though she modified it based on the court’s concerns, this Court presumed that the prosecutor was aware of the potential for a mistrial from her conduct.

Id. ¶ 24. {48} The questioning in this ease does not extend to the level of conduct of Breit and Huff. Although the questioning was improper, it was isolated and was not reflected in other parts of the trial, including closing. See, e.g., Haynes, 2000-NMCA-060, ¶ 6, 129 N.M. 304, 6 P.3d 1026. In addition, the district court concluded that the Breit test’s third prong was not satisfied. The district court heard the prosecutor testify about his interview with Goen in February 2000. He said that his cross-examination was based on all the statements he had before trial, including Goen’s statement at this interview.

Defendant brought evidence that contradicted the prosecutor’s testimony. However, despite these contradictions and inconsistencies in the prosecutor’s testimony, the district court found the prosecutor to be a credible witness, stating specifically: The Court finds that Mr. Montoya did not know or can be presumed not to have known that the conduct was improper and prejudicial. The Court finds that Mr. Montoya had an honest belief that his questions were proper. As to the third part of the Breit test, the district court stated: The Court finds that ... Mr. Montoya did not act in willful disregard. That Mr.

Montoyaf’s] misconduct does not appear to be the result of a plan or scheme to inject unfair prejudice into the trial. Nor did Mr. Montoya seek a tactical advantage through his conduct or would the State would have gained [sic] a tactical advantage because of a mistrial. {49} We must consider Defendant’s argument in the context of the trial as a whole. See Breit, 1996-NMSC-067, ¶¶ 40, 45, 122 N.M. 655, 930 P.2d 792. The district judge, of course, is in the best position to understand this context, having observed and presided over the trial. See, e.g., State v.

Duffy, 1998-NMSC-014, ¶ 46, 126 N.M. 132, 967 P.2d 807 (“[T]he trial court is in the best position to evaluate the significance of any alleged prosecutorial errors.”). At least in part because of the district judge’s participation at trial, we follow established principles of appellate review with regard to factual findings, not substituting our judgment in place of findings of the district court, viewing the evidence in the light most favorable to the district court’s ruling, and disregarding evidence or inferences contrary to the district court’s ruling. State v.

Rodriguez, 2006-NMSC-018, ¶ 3, 139 N.M. 450, 134 P.3d 737; State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. We therefore must accept the district court’s finding concerning the credibility of the prosecutor. {50} Although the district court’s findings are laced with conclusions of law, we consider its observation that the prosecutor did not seek a tactical advantage and that the State would not have gained a tactical advantage by a mistrial to be significant. These factors were important to our analysis in State v.

Lucero, 1999-NMCA-102, ¶ 28, 127 N.M. 672, 986 P.2d 468 (declining to bar reproseeution after discovery violation). In that ease, in analyzing the type of evidence that would fall within the extraordinary circumstances barring reprosecution, we considered Justice Stevens’ concurring opinion in Oregon v. Kennedy, 456 U.S. 667, 689-90, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), explaining that, short of deliberate misconduct, a court would normally consider whether the prosecutor’s actions eliminated or reduced the probability of acquittal in a case that “was going badly” for the state.

Lucero, 1999-NMCA-102, ¶ 29, 127 N.M. 672, 986 P.2d 468 (internal quotation marks and citation omitted). We therefore give considerable weight to the district court’s belief that the State would not have benefited from a mistrial. Without such a benefit, we do not conclude that the prosecutor acted in willful disregard of the constraints on his actions. {51} Nor do we believe, as Defendant argues, that the timing of the prosecutor’s questions indicates the prosecutor’s willful disregard of the potential consequences of his actions.

It is true that when improper questioning occurs late in a trial, it is more difficult to cure. Cf. Haynes, 2000-NMCA-060, ¶ 6, 129 N.M. 304, 6 P.3d 1026 (“[DJouble jeopardy will not bar retrial when the prosecutor’s misconduct occurs early in the trial and there is nothing in the record indicating that the prosecution would benefit from a further delay in the matter.”); State v. Pacheco, 1998-NMCA-164, ¶ 14, 126 N.M. 278, 968 P.2d 789 (noting that there would be no benefit to the prosecution because the misconduct “occurred at the very outset of the trial”).

Defendant was the last witness to testify at trial, so his cross-examination would logically be at the end of the trial. However, we cannot infer a willful disregard for a mistrial on the part of the prosecutor from the timing of his questions during the trial, given the district court’s finding that the State would not have gained a tactical advantage from a mistrial in the case. {52} Lastly, we note our concern about the State’s reasons for initially declining to present evidence opposing Defendant’s motion to bar reprosecution.

In its motion to reopen, the State asserted that it “did not call Kenny Montoya at the first hearing because it did not believe the [c]ourt would rule in favor” of Defendant. It stated additionally that the prosecutor had recently been appointed to a statewide position. Defendant argued in response that the State should not be entitled to a second chance on the issue. The district court addressed the motion, and we have addressed the district court’s ruling on the merits. Nevertheless, we do not condone the State’s laxity in its approach.

This case involves serious charges, and the State has the responsibility to act eommensurately. Cf. State v. Perkins, 219 N.J.Super. 121, 529 A.2d 1056, 1059 (1987) (noting that the prosecutor “is expected to prepare [serious charges] accordingly”); Rule 16-103 NMRA (“A lawyer shall act with reasonable diligence and promptness in representing a client.”). CONCLUSION {53}

Section 39-1-1 did not deny the district court the ability to dismiss the State’s appeal and reopen the evidence in connection with Defendant’s motion to bar retrial for prosecutorial misconduct. The district court did not err in concluding that double jeopardy protections did not apply. We therefore affirm the ruling of the district court and remand for retrial. {54} IT IS SO ORDERED. I CONCUR: CYNTHIA A. FRY, Judge. RODERICK T. KENNEDY, Judge (concurring in part and dissenting in part).