State v. Surratt

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 16:01:43 2016.01.14

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-004

Filing Date: December 10, 2015

Docket No. S-1-SC-35049

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

DANNY SURRATT,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI
Steven L. Bell, District Judge

Hector H. Balderas, Attorney General
Yvonne Marie Chicoine, Assistant Attorney General
Santa Fe, NM

for Petitioner

Templeman & Crutchfield
C. Barry Crutchfield
Lovington, NM

for Respondent

OPINION

DANIELS, Justice.

{1} Following a second trial, Defendant Danny Surratt was convicted of criminal sexual
penetration of a minor. Defendant appealed his conviction, claiming the district attorney
serving as special prosecutor at the second trial lacked the authority to prosecute the case
because his appointment by the first special prosecutor, also a district attorney, was invalid.
Defendant maintained that the Lea County District Court was thereby divested of jurisdiction
over his criminal proceedings. The Court of Appeals agreed with Defendant and reversed
his conviction, effectively remanding the case for a third trial. See State v. Surratt, 2015-

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NMCA-039, ¶ 16, 346 P.3d 419. We hold that a properly appointed special prosecutor is
given all the authority and duties of the appointing district attorney to prosecute the case for
which that special prosecutor was appointed, including the authority to name another special
prosecutor if unable to proceed for an ethical reason or other good cause. Defendant does not
raise any additional grounds for reversal on appeal. Accordingly, we reverse the Court of
Appeals and reinstate Defendant’s conviction.

I. BACKGROUND

{2} On August 31, 2010, following an investigation by the New Mexico State Police,
Defendant Danny Surratt was charged in Lea County Magistrate Court with several counts
stemming from allegations of inappropriate sexual conduct with his two minor
stepgranddaughters. Defendant served for many years as a law enforcement officer in Lea
County and was a deputy sheriff at the time the allegations arose. Janetta Hicks, who was
then the district attorney for the Fifth Judicial District where Lea County is located,
determined that Defendant’s position and relationship with the Lea County Sheriff’s
Department created a conflict of interest for her office. As a result, she appointed the district
attorney for the Twelfth Judicial District, Diana Martwick, or her designee as special
prosecutor for the State in Defendant’s case. The signed and notarized appointment was filed
with the Lea County Magistrate Court on September 1, 2010.

{3} On December 13, 2010, a Lea County Magistrate found probable cause to order the
case bound over for trial in the district court. An assistant district attorney from Martwick’s
office filed a four-count criminal information against Defendant in the Lea County Fifth
Judicial District Court. At the conclusion of the State’s case, the district court dismissed two
counts, a jury found Defendant guilty on one count of criminal sexual penetration of a child
between the ages of thirteen and eighteen, and the court declared a mistrial on the final count
because the jury could not reach consensus. Prior to sentencing, new counsel for Defendant
moved for a new trial on the basis of an improper jury instruction pertinent to the charge for
which Defendant was convicted. The district court granted Defendant’s motion, set aside the
verdict, and ordered a second trial.

{4} At the time the case was remanded for a second trial, Martwick determined that her
office could no longer effectively prosecute the State’s case against Defendant. She believed
the assistant district attorney assigned to the case lacked the requisite experience to conduct
a retrial, a conflict had developed between the alleged victims and the State’s prosecutors
in the first trial during the course of that trial, and she herself was precluded from
participating in a new trial because she was quite ill and undergoing extensive medical
treatment. Ultimately, Martwick “felt that it would be in the best interest of justice to re-
assign the case” to the office of another district attorney. She contacted Hicks regarding the
case reassignment. They agreed that because Hicks’ office was conflicted out of the case,
Martwick herself should appoint another special prosecutor.

{5} Martwick appointed Matthew Chandler, the Ninth Judicial District Attorney at that

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time, or his designee as special prosecutor in her place. The appointment was filed with the
Lea County District Court on July 6, 2012. Chandler’s chief deputy entered her appearance
in the case three days later. Prior to the second trial, the district court granted Defendant’s
motion to sever the two remaining charges against him. The State first proceeded against
Defendant on one count of criminal sexual penetration of a child under the age of thirteen,
and the jury found Defendant guilty. Once again before sentencing, Defendant’s counsel
filed a motion for a new trial, indicating that he had received a telephone call from an
unidentified individual stating that “the jury had and used improper information” in
Defendant’s case. The district court issued an order permitting Defendant’s counsel to
interview jurors to determine whether the anonymous allegation had merit. The court
sentenced Defendant to eighteen years of imprisonment but delayed entering the final
judgment pending the outcome of defense counsel’s investigation.

{6} Defense counsel did not uncover any juror misconduct in his investigation but stated
in a motion to dismiss the complaint and set aside Defendant’s sentence that, “[i]n the
process of investigation, [he] became aware for the first time of defects in the appointment
of counsel for the State serving as Special Prosecutor.” Specifically, Defendant challenged
Martwick’s appointment of Chandler, arguing Martwick was not authorized to make the
appointment and therefore it was “without legal effect.” Defendant argued Chandler
therefore lacked legal authority to prosecute him, and absent that authority “no jurisdiction
exist[ed] for criminal prosecution of the matter.” The district court allowed both parties to
submit further briefing before hearing the issue.

{7} The State’s briefing included affidavits from District Attorneys Hicks, Martwick, and
Chandler. In her affidavit, Hicks indicated that “[o]nce this conflict appointment took place,
[she] no longer had any authority whatsoever over the case” and that “the appropriate
manner to handle th[e] matter was in [District Attorney Martwick’s] sole discretion,”
including decisions regarding any further appointment deemed appropriate. In addition to
expounding her reasons for reassigning the case, Martwick stated in her affidavit that she
“made the appointment as [she] was the current assigned Special Prosecutor in the matter
and the Fifth Judicial District [Attorney] had already been conflicted out of the proceeding.”
Martwick further indicated that when she spoke with Hicks prior to appointing Chandler,
both agreed that Hicks was conflicted out and that Martwick “should be the one to do the
appointment.” Finally, Chandler stated in his affidavit that when Martwick approached him
for assistance, he agreed to represent the State in Defendant’s case and accordingly filed the
appointment and oath of special prosecutor.

{8} The district court denied Defendant’s motion and formally entered the judgment and
sentence against Defendant for the first degree felony conviction of criminal sexual
penetration in violation of NMSA 1978, Section 30-9-11(D)(1) (2009). The State dismissed
the remaining charge of criminal sexual penetration in the second degree without prejudice
for “judicial efficiency.” All trial court proceedings in Defendant’s case were heard in the
Lea County Fifth Judicial District Court before the same judge.

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{9} Defendant appealed the district court’s ruling on his motion to dismiss the complaint
and set aside his sentence, asserting that Martwick’s improper appointment of Chandler
divested the district court of jurisdiction to hear the second trial. The Court of Appeals
reversed the district court, holding that (1) District Attorney Martwick lacked lawful
authority to appoint District Attorney Chandler, (2) District Attorney Chandler lacked
authority to prosecute the State’s case against Defendant, and (3) the District Court lacked
jurisdiction over Defendant’s second trial. See Surratt, 2015-NMCA-039, ¶ 16.

{10} We granted certiorari, 2015-NMCERT-002, 346 P.3d 371, to consider the authority
of a properly appointed special prosecutor to appoint another special prosecutor when an
ethical conflict or other good cause arises altogether preventing continued participation of
the original appointee in the criminal proceeding.

II. DISCUSSION

{11} We must determine the scope of a special prosecutor’s authority under NMSA 1978,
Section 36-1-23.1 (1984), in order to then address the question whether the Lea County Fifth
Judicial District Court retained jurisdiction over Defendant’s criminal proceedings. We turn
to principles of statutory construction to guide our analysis.

A. Standard of Review

{12} “Statutory construction is a matter of law we review de novo.” State v. Nick R., 2009-
NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868. The primary goal in construing a statute is
to “ascertain and give effect to the intent of the Legislature.” State v. Tafoya, 2010-NMSC-
019, ¶ 10, 148 N.M. 391, 237 P.3d 693 (internal quotation marks and citation omitted). The
Court begins by “examin[ing] the plain language of the statute as well as the context in
which it was promulgated, including the history of the statute and the object and purpose the
Legislature sought to accomplish.” Nick R., 2009-NMSC-050, ¶ 11 (internal quotation marks
and citation omitted). “This Court has rejected a formalistic and mechanical statutory
construction when the results would be absurd, unreasonable, or contrary to the spirit of the
statute.” State v. Smith, 2004-NMSC-032, ¶ 10, 136 N.M. 372, 98 P.3d 1022.

B. Section 36-1-23.1 Applies to a District Attorney’s Appointment of Another
Elected District Attorney When a Conflict of Interest Arises

{13} The office of the district attorney is a constitutional office with duties prescribed and
delimited by the Legislature. See State ex rel. Att’y Gen. v. Reese, 1967-NMSC-172, ¶ 26,
78 N.M. 241, 430 P.2d 399 (“The constitution and statutes clearly prescribe and delimit [the
district attorney’s] authority.”); see N.M. Const. art. VI, § 24 (establishing the office of
district attorney and authorizing legislation to prescribe duties and qualifications for the
office); NMSA 1978, §§ 36-1-1 to -28 (1909, as amended through 2001) (prescribing duties,
administrative and operational provisions, jurisdiction, and requirements for the office of
district attorney). Pursuant to the authority granted by the New Mexico Constitution, the

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Legislature has determined various responsibilities of the district attorney, as well as
circumstances in which the district attorney may be succeeded in the exercise of these
responsibilities. See, e.g., NMSA 1978, § 8-5-3 (1933) (authorizing the attorney general to
act “upon the failure or refusal of any district attorney to act”as otherwise authorized “in any
criminal or civil case” in the interest of a “county, state, or any department thereof”); § 36-1-
19(A) (giving the offices of the attorney general and district attorney concurrent jurisdiction
in representing interests of the state or a county); § 36-1-23.1 (authorizing a district attorney
whose office is unable to “prosecute a case for ethical reasons or other good cause” to
“appoint a . . . special assistant district attorney”); see also State v. Naranjo, 1980-NMSC-
061, ¶¶ 5, 10-11, 94 N.M. 407, 611 P.2d 1101 (describing circumstances in which the
attorney general, exercising powers concurrent with a district attorney’s powers, appointed
a special prosecutor when both the district attorney and the attorney general “recused their
offices . . . from prosecuting” the county sheriff).

{14} Under New Mexico law, “[e]ach district attorney shall . . . prosecute and defend for
the state in all courts of record of the counties of his district all cases, criminal and civil, in
which the state or any county in his district may be a party or may be interested.” Section
36-1-18(A)(1). As an elected representative of the people, a district attorney has broad
discretion in determining “what charges to bring and what people to prosecute in the best
interest of the people of the State of New Mexico.” State v. Brule, 1999-NMSC-026, ¶ 14,
127 N.M. 368, 981 P.2d 782 (internal quotation marks and citation omitted). Accordingly,
“courts must be wary not to infringe unnecessarily on the broad charging authority of district
attorneys, and we will require clear evidence of an intent by the Legislature to limit
prosecutorial discretion.” State v. Santillanes, 2001-NMSC-018, ¶ 21, 130 N.M. 464, 27
P.3d 456.

{15} One exception to the authority to appear on behalf of the state arises when the district
attorney is disqualified from acting in a particular case. See generally State v. Gonzales,
2005-NMSC-025, ¶¶ 14-19, 138 N.M. 271, 119 P.3d 151 (discussing New Mexico case law
pertaining to a court’s disqualification of prosecutors). This includes occasions where
“prosecution by a member of the district attorney’s office is inconsistent with a particular
standard of professional conduct,” such as improper influence from private interests or
existence of a prior professional relationship. Id. ¶¶ 28, 38, 44. A district attorney aware of
a conflict of interest or for other good cause may also voluntarily recuse in a particular case
to avoid the conflict or appearance of impropriety. See § 36-1-23.1; see also State v. Hill,
1975-NMCA-093, ¶ 14, 88 N.M. 216, 539 P.2d 236 (“Public confidence in the [district
attorney’s] office in the exercise of broad powers demands that there be no conflict of
interest or the appearance of a conflict.”). When a district attorney “cannot prosecute a case
for ethical reasons or other good cause,” Section 36-1-23.1 titled “Special prosecutors in
conflict cases” provides,

Each district attorney may . . . appoint a practicing member of the bar of this
state to act as special assistant district attorney. Any person so appointed
shall have authority to act only in the specific case or matter for which the

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 appointment was made. An appointment and oath shall be required of special
assistant district attorneys in substantially the same form as that required for
assistant district attorneys in Section 36-1-2 NMSA 1978.

{16} As a threshold matter, the State suggests that Section 36-1-23.1 is not invoked when
an elected district attorney requests, for a specific case, that another elected district attorney
prosecute the case instead. Applying well established rules of statutory construction, we
disagree. An ordinary reading of the statute’s plain language suggests the Legislature
intended the statute to apply to the appointment of both private counsel and other public
prosecutors. While the terms “special prosecutor” and “special assistant district attorney”
are not specifically defined within the statute, its text is inclusive of both private counsel and
other public prosecutors in its generic reference to “a practicing member of the [New
Mexico] bar.” This plain-language reading is consistent with the definition of special
prosecutor adopted by the National District Attorney’s Association as “any person who
performs the prosecution function in a jurisdiction who is not the chief prosecutor elected
or appointed in the jurisdiction, or an assistant or deputy prosecutor in the jurisdiction.”
National District Attorney’s Association, National Prosecution Standards 2 (3d ed. 2009),
available at http://www.ndaa.org/pdf/NDAA NPS 3rd Ed. w Revised Commentary.pdf (last
visited Dec. 7, 2015).

{17} Unless an alternative source of legal authority grants the district attorney power to
assign a case to another district attorney’s office, Section 36-1-23.1 must control here. There
is a line of statutory authority in addition to Section 36-1-23.1 that allows a district attorney
to appoint assistants. Sections 36-1-2 and 36-1-5 permit a district attorney to appoint
assistant district attorneys as regular employees to aid in the discharge of the legally
prescribed duties of the office. But in State v. Hollenbeck, the Court of Appeals construed
these statutory provisions together and determined that Sections 36-1-2 and 36-1-5 were not
implicated under circumstances comparable to those presented here, and that “only” Section
36-1-23.1 applied. See 1991-NMCA-060, ¶ 11, 112 N.M. 275, 814 P.2d 143.

{18} In Hollenbeck, the state sought to avoid statutory noncompliance for appointing a
special prosecutor absent an ethical reason or other good cause by arguing that the
appointment of a Medicaid Providers Fraud Control Unit attorney as special prosecutor was
authorized under Sections 36-1-2 and 36-1-5 and that Section 36-1-23.1 was inapposite. See
Hollenbeck ¶¶ 8-9. Applying the general/specific statute rule of construction, the Court of
Appeals rejected the state’s suggestion of “an inherent or general statutory power to appoint
a special prosecutor for an individual case despite a specific statutory provision governing
the appointment of such special prosecutors” and held that Section 36-1-23.1 alone, being
“the more specifically applicable” statute, was implicated. Id. ¶¶ 11-12; see also Santillanes,
2001-NMSC-018, ¶ 7 (explaining that under the general/specific statute rule of construction,
“if two statutes dealing with the same subject conflict, the more specific statute will prevail
over the more general statute . . .”).

{19} The State here fails to advance an alternative source of legal authority for assigning

6
a case to another district attorney’s office when a conflict of interest arises, nor do we
perceive one. We agree with the Hollenbeck Court that Section 36-1-23.1, the provision
“deal[ing] specifically with appointments of assistant district attorneys for individual cases,”
is the only provision that could authorize the appointment of another district attorney to
prosecute Defendant’s case. See 1991-NMCA-060, ¶ 11. Accordingly, we conclude that the
Legislature intended Section 36-1-23.1 to apply to the appointment of any practicing
member of the New Mexico bar, public or private counsel, as special prosecutor.

{20} Having determined that Section 36-1-23.1 is the controlling legal authority in this
case, we now turn to the scope of a special prosecutor’s authority under the statute to appoint
another elected district attorney as special prosecutor.

C. District Attorney Martwick, as Special Prosecutor, Had the Authority to Take
Any Action She Deemed Appropriate in Prosecuting Defendant’s Case

{21} New Mexico courts have not yet addressed the full scope of a special prosecutor’s
authority to act pursuant to Section 36-1-23.1, but the practice of appointing a special
prosecutor or attorney pro tempore when the elected district attorney is disqualified or has
had to recuse from participating in criminal proceedings is not unique to New Mexico.1
Nevertheless, our state is unique in that the Legislature granted the district attorney who
perceives a conflict the authority and discretion to appoint a special prosecutor without
seeking leave of the court or permission from the attorney general prior to making the
appointment. See § 36-1-23.1. This is consistent with the high value New Mexico places on
“public . . . confidence” in the integrity of the office of the district attorney, Gonzales, 2005-
NMSC-025, ¶¶ 37, 51, and with the desire to maintain a prosecutor’s “distinctive role of

1
See, e.g., Ala. Code § 12-17-189 (1940) (“When any district attorney is suspended,
the court shall appoint a district attorney pro tem, who shall perform the duties of the office
of district attorney. . . .”); Colo. Rev. Stat. § 20-1-107(4) (2002) (“If the district attorney is
disqualified in any case which it is his or her duty to prosecute or defend, the court having
criminal jurisdiction may appoint a special prosecutor to prosecute or defend the cause.”);
Mich. Comp. Laws § 49.160(1) (2003) (“If the prosecuting attorney . . . determines himself
or herself to be disqualified by reason of conflict of interest . . . , he or she shall file with the
attorney general a petition stating the conflict . . . and requesting the appointment of a special
prosecuting attorney to perform the duties of the prosecuting attorney. . .”); Mo. Ann. Stat.
§ 56.110 (2014) (“If the prosecuting attorney . . . be interested . . . in any case . . . , the court
having criminal jurisdiction may appoint some other attorney to prosecute or defend the
cause.”); Tenn. Code Ann. § 8-7-106(a) (West 1996) (“If the district attorney general fails
to attend the circuit or criminal court, or is disqualified from acting, or if there is a vacancy
in the office, the court shall appoint some other attorney to supply such district attorney
general’s place temporarily. The acts of such district attorney general pro tem shall be as
valid as if done by the regular officer, and the district attorney general pro tem shall be
entitled to the same privileges and emoluments.”).

7
disinterested and impartial public advocate[],” State v. Robinson, 2008-NMCA-036, ¶¶ 16-
17, 143 N.M. 646, 179 P.3d 1254.

{22} In construing statutory sources of authority, we are careful to avoid restricting a
district attorney’s prosecutorial discretion. See Santillanes, 2001-NMSC-018, ¶ 21
(discussing flexible application of a rule of construction so as not to “infringe unnecessarily
on the broad charging authority of district attorneys”). This has been true in our limited
construction of Section 36-1-23.1. For example, in State v. Cherryhomes this Court looked
at the statutory language and, in the absence of an implicit or explicit Legislative restriction,
determined that the Legislature did not intend the appointment to be personal to the
appointee but rather allowed a special prosecutor to delegate responsibilities associated with
the appointment. See 1996-NMSC-072, ¶ 11, 122 N.M. 687, 930 P.2d 1139. In fact, we
noted in Cherryhomes that the language of Section 36-1-23.1 only places restrictions on a
special prosecutor’s scope of authority to act in “‘the specific case or matter for which the
appointment was made.’” Id. ¶ 8 (quoting Section 36-1-23.1). The statute places no other
constraints on a special prosecutor’s authority to act in a given case provided an appointment
is made and an oath taken. See § 36-1-23.1; see also Cherryhomes, 1996-NMSC-072, ¶ 6
(“[T]he rationale for requiring authorization for prosecution is to avoid prosecution by
persons who are not held accountable or subject to the oath of office.” (internal quotation
marks and citation omitted)).

{23} Many other jurisdictions have decided that a special prosecutor steps into the shoes
of the district attorney and has the same power and authority in relation to the specific case
for which that special prosecutor was appointed as the district attorney would have if not
otherwise conflicted in the case. See, e.g., Petition of Padget, 678 P.2d 870, 874 (Wyo.
1984) (explaining that the state statute permitting a court to direct or permit any member of
the bar to act in the place of a district attorney where a disqualifying conflict of interest
arises allows that attorney to assume the same duties and responsibilities as those of the
district attorney); People v. Hastings, 903 P.2d 23, 25 (Colo. App. 1994) (“When a special
prosecutor is appointed, that person becomes the district attorney for that particular case,
exercising plenary power.”), as modified on denial of reh’g (Feb. 16, 1995).

{24} In State v. Rosenbaum, the Texas Court of Criminal Appeals addressed whether a
special prosecutor appointed to replace a disqualified district attorney had authority to file
an appeal absent authorization from that district attorney. See 852 S.W.2d 525, 526 (Tex.
Crim. App. 1993) (en banc). Under state statute, a prosecuting attorney had to personally
supervise and authorize appeals undertaken by his office on behalf of the state. See id. The
defendant argued the appellate court was without jurisdiction because the special prosecutor
lacked such authority. See id. at 527. Like New Mexico, Texas statute allows a district
attorney to recuse in a case “for good cause.” See Tex. Code Crim. Proc. Ann. art. 2.07(b-1)
(West 1999). Once the state’s attorney is disqualified, the court “may appoint any competent
attorney to perform the duties of the office” during the absence or disqualification of the
state’s attorney. Id. art. 2.07(a). The Rosenbaum Court determined that “an attorney pro tem
or special prosecutor takes the place of the disqualified district attorney assuming all the

8
district attorney’s powers and duties in the case,” and “is not subject to the direction of the
disqualified district attorney as is a subordinate, but, for that case, he is the district attorney.”
852 S.W.2d at 528.

{25} Under the facts in Rosenbaum, the judge and the disqualified and appointed district
attorneys properly followed statutory procedure, and the court indicated that by requesting
to be disqualified “the district attorney manifested his intention to give his full power and
authority to the special prosecutor in the case.” Id. at 527. In fact, the district attorney filed
a motion asking the court to allow him to abstain from signing the notice of appeal, thereby
demonstrating his belief that the special prosecutor retained full power and control over the
case. See id. The court found that the special prosecutor “was given all the powers and duties
of the district attorney by the court order to ‘investigate’ and ‘prosecute’ the case” and that
such powers included the authority of a district attorney to file an appeal. Id. at 528.

{26} Similarly here, Martwick was given all the powers and duties of Hicks by the
appointment as special prosecutor to prosecute in Defendant’s case. It would be absurd to
construe the legislative mandate that a district attorney altogether precluded from proceeding
for an ethical reason or other good cause could appoint a special prosecutor but limit the
authority of that special prosecutor solely in this one area of responsibility over a case.
Within constitutional limits, a district attorney has broad authority to control key aspects of
a prosecution, including determinations about whom and whether to prosecute and what
charges to bring. See State v. Estrada, 2001-NMCA-034, ¶¶ 10-11, 130 N.M. 358, 24 P.3d
793 (“Prosecutorial discretion, while broad, is not limitless and is bound by constitutional
constraints.”). Within the bundle of authorities the Legislature granted a district attorney is
the ability to appoint a special prosecutor under circumstances permitted by statute. See §
36-1-23.1. “A special prosecutor does not displace the prosecuting attorney from his
constitutional office, but in order . . . to be effective in the investigation and prosecution of
the matters for which he has been appointed, he must have the right to proceed in the same
manner as the prosecuting attorney.” Weems v. Anderson, 516 S.W.2d 895, 901 (Ark. 1974).

{27} Defendant suggests that such a reading could give “unlimited discretion” to substitute
prosecutors that would result in irresponsible reappointments and “unpredictable results,”
but the hypothetical situations he sets forth are neither before this Court nor, in our view,
likely to occur.

{28} The case before us involves three elected district attorneys in the State of New
Mexico, subject to the oath of office and obligated to the public. See N.M. Const. art. XX,
§ 1 (“Every person elected or appointed to any office shall, before entering upon his duties,
take and subscribe to an oath or affirmation that he will support the constitution of the
United States and the constitution and laws of this state, and that he will faithfully and
impartially discharge the duties of his office to the best of his ability.”); § 36-1-1(requiring
for each elected district attorney “an oath of office as prescribed for other officers”); § 36-1-
2 (requiring for each appointed assistant district attorney “an oath of office as is now
prescribed by law for district attorneys”); § 36-1-23.1 (requiring for each appointed special

9
assistant district attorney “an oath . . . in substantially the same form as that required for
assistant district attorneys”). A special prosecutor is no less obligated than a district attorney
to protect the public interest and the rights of the accused impartially and free from conflict.
While not required, both Hicks and Martwick strictly complied with the appointment
provisions of Section 36-1-23.1. See Cherryhomes, 1996-NMSC-072, ¶¶ 6, 18 (holding that
strict compliance with the appointment and oath provisions of Section 36-1-23.1 is not
required but that “the appointment and oath of a special prosecutor be in ‘substantially the
same form’ as the appointment and oath of an assistant district attorney” (emphasis added)).
Hicks appointed Martwick or her designee specifically and solely to prosecute Defendant’s
case and filed that appointment with the court that had been vested with jurisdiction over the
case. Martwick filed an oath to faithfully and impartially discharge her duties as special
prosecutor and act only within the bounds of the case for which she was appointed.

{29} In making the appointment, Hicks manifested her intention to give her full power and
authority to Martwick in this specific case because her office had a conflict of interest that
made it ethically inappropriate to have future participation in the case. Hicks renewed her
belief that Martwick retained full control of the case during her consultation with Martwick
about Chandler’s appointment by reaching agreement that Martwick should make the
appointment. Once Hicks had disqualified herself and appointed a special prosecutor,
Martwick had the full duty, authority, and discretion to make decisions concerning
Defendant’s case. This included the authority to decide which charges to file, which charges
to dismiss, which experts and evidence to introduce, and which motions to file. That full
control over the case encompassed the authority to appoint a special prosecutor when an
ethical reason or other good cause to do so arose during the proceedings. If Hicks was
displeased with any of these decisions, she would not have had the authority to challenge
them. See People v. Dellavalle, 259 A.D.2d 773, 775 (N.Y. App. Div. 1999) (“[T]he
appointment of a Special Prosecutor to replace the District Attorney in a particular matter
terminates the latter’s authority with respect to any further proceedings in the case . . . .”).
If the public was displeased with Hicks’ choice of special prosecutor and events stemming
therefrom, voters could voice their opinion at the polls. See Quillen v. Crockett, 928 S.W.
2d 47, 51 (Tenn. Crim. App. 1995) (“If voters are in disagreement with a prosecutor’s
charging determinations, they have the ultimate veto at the ballot box.”).

{30} Under the facts of this case, we conclude that District Attorney Martwick, as the duly
appointed special prosecutor, stepped into the shoes of elected District Attorney Hicks for
all matters relating to the prosecution of this specific case in accordance with Section 36-1-
23.1. Martwick, having the same power and authority in Defendant’s case as Hicks would
have absent the conflict of interest, had sole discretion and authority to appoint a special
prosecutor when ethical reasons or other good cause arose that impeded her own office from
remaining on the case. Having been properly appointed by Martwick in accordance with
Section 36-1-23.1, District Attorney Chandler had authority to prosecute Defendant’s case.

{31} Because we conclude that Chandler had authority to proceed on behalf of the State,
Defendant’s challenge does not raise an issue of subject matter jurisdiction, and we need not

10
reach the State’s argument that a prosecutor’s lack of authority to conduct a criminal case
is a procedural rather than jurisdictional defect. See People v. Scott, 116 P.3d 1231, 1233
(Colo. App. 2004) (determining that because the district attorney’s acts were valid,
defendant’s challenge to the district attorney’s prosecutorial authority did not raise an issue
of subject matter jurisdiction). The district court properly obtained subject-matter
jurisdiction over these criminal proceedings when the charges were initially filed and did not
lose jurisdiction over the case as a result of any substitution of the prosecutor.

III. CONCLUSION

{32} We hold that the lawful appointment of District Attorney Martwick as Special
Prosecutor vested her with all the powers and duties of the original district attorney to
investigate and prosecute this case, including the authority to appoint another special
prosecutor pursuant to Section 36-1-23.1. Because we conclude that Martwick had the
authority to appoint District Attorney Chandler as special prosecutor in her place, we reverse
the Court of Appeals and reinstate Defendant’s conviction.

{33} IT IS SO ORDERED.

____________________________________
CHARLES W. DANIELS, Justice

WE CONCUR:

___________________________________
BARBARA J. VIGIL, Chief Justice

___________________________________
PETRA JIMENEZ MAES, Justice

___________________________________
EDWARD L. CHÁVEZ, Justice

JUDITH K. NAKAMURA, Justice, not participating

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