(concurring in part, dissenting in part).
I agree with the majority that (1) under State v. Chavez, 98 N.M. 682, 652 P.2d 232 (1982), the State’s appeal is properly before this Court; (2) a district court may not grant a new trial on the basis that it disagrees with a uniform jury instruction; (3) evidence of Defendant’s prior conviction for fraud was properly admitted at trial1; and (4) expert testimony was not the proper method of informing the jury of the legal definition of a security. My disagreement is with the disposition of the appeal. Having found that only one of the grounds mentioned by the district court could be a proper ground for granting a new trial, the majority nevertheless affirms the order granting a new trial. This disposition conflicts with a proper understanding of the nature of the district court’s discretion and the reason why an appellate court should defer to that discretion. I would remand to permit the district court to consider whether a new trial is required by the one trial error that the district court can properly consider.
Why do appellate courts grant trial judges discretion in determining whether trial error requires a new trial? See State v. Gonzales, 105 N.M. 238, 241, 731 P.2d 381, 384 (Ct.App.1986) (trial court has discretion in granting new trial because of legal error), cert. quashed, 105 N.M. 211, 730 P.2d 1193 (1987). The reason is that “the trial court is in the best position to evaluate any possible prejudice.” Id. 105 N.M. at 243, 731 P.2d at 386. As stated in Professor Rosenberg’s seminal essay on judicial discretion, “a sound and proper reason for conferring a substantial measure of respect to the trial judge’s ruling [is that] it is based on facts or circumstances that are critical to decision and that the record imperfectly conveys.” Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L.Rev. 635, 664 (1971) (emphasis deleted). Some trial errors compel reversal on appeal. Other errors, although not of that magnitude, nonetheless may appear to the trial judge as having caused an unfair trial. See Gonzales, 105 N.M. at 241, 731 P.2d at 384. Recognizing that presence at the trial gives the trial judge 'a superior vantage to the appellate court in gauging the impact of the error on the jury, an appellate court will defer to the trial judge’s conclusion that the error caused substantial prejudice.
When an appellate court states that it is deferring to the trial judge’s exercise of discretion, the appellate court means that, based on the record, it would affirm an order either way. For example, the appellate court would affirm the trial judge’s ruling. on a motion for a new trial if the motion was granted or if it was denied. The critical factor is the trial judge’s actual view of the matter. An order granting a new trial is never reversed simply because it would have been within the trial judge’s discretion to deny a motion for a new trial. The appellate court does not affirm because of what a hypothetical trial judge could have thought; it affirms on the basis of what the real trial judge actually thought. Thus, if the trial judge enters an order without exercising discretion because of the mistaken view that the law compelled the issuance of the order, the appellate court will remand to permit the exercise of discretion even though it would have affirmed the identical order as a proper exercise of discretion if the trial judge had in fact exercised discretion. See Mills v. Southwest Builders, 70 N.M. 407, 418, 374 P.2d 289, 296 (1962) (remanding so trial court could reconsider whether costs should be awarded after trial court erroneously ruled that it had no authority to award costs of aborted first trial to party that prevailed at second trial); Catron v. Rueckhaus, 107 N.M. 227, 755 P.2d 71 (Ct.App.1988) (reversing when trial court erroneously believed it had no discretion in awarding fee for estate’s personal representative); Maus v. State, 311 Md. 85, 532 A.2d 1066, 1077 (1987); Lemons v. Old Hickory Council, Boy Scouts of Am., 322 N.C. 271, 367 S.E.2d 655, 658 (1988).
What if the trial judge makes a discretionary ruling based on several factors but it was improper to consider some of those factors? If the remaining factors could still justify the same ruling, the ruling may be affirmable— but only if the trial judge actually decides that the remaining grounds justify the ruling. The appellate court should not affirm simply because the remaining grounds could justify the ruling. After all, the purpose of deferring to the trial judge is that the trial judge is in a better position to weigh the various considerations pertinent to the matter at issue. For the appellate court to affirm without knowing how the trial judge would rule on the remaining factors is to substitute a hypothetical trial judge for the real judge to whom the appellate court should pay deference. It would be bullheaded to affirm under an abuse-of-discretion standard when the trial judge would rule the other way if informed that certain factors should not be considered.
The United States Supreme Court recognized this proposition in Platt v. Minnesota Mining & Manufacturing Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). The district court had enumerated ten factors in denying a motion for a change of venue. One of the factors was not an appropriate criterion. The Supreme Court, noting that the district court was exercising a discretionary function, reversed and remanded for reconsideration without reference to the improper factor. See Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 752-53 n. 19 (1982) (In reviewing exercise of discretion to dismiss on the ground of forum non conveniens, “[o]ne cannot simply assume that the district court would still opt to dismiss [on that ground] if a principle [sic] reason for the dismissal had disappeared.”).
The New Mexico Supreme Court has also adopted this view. In Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991), the trial judge based an enhanced sentence on two aggravating circumstances. The Supreme Court held that one of the circumstances was an improper consideration. The Court then wrote, “Because we do not know the relative weights the trial judge attached to [the two considerations], we remand for resentencing[.]” Id. at 17 n. 11, 810 P.2d at 1237 n. 11. This Court issued an identical order in State v. Watchman, 111 N.M. 727, 734, 809 P.2d 641, 648 (Ct.App.), cert. denied, 111 N.M. 529, 807 P.2d 227 (1991).
This is not to say that an appellate court should never affirm a new-trial order when the- trial judge noted an improper factor in reaching a decision. For example, if one of the grounds for granting a new trial was an error which constitutes reversible error, the order granting a new trial should be affirmed. After all, if the trial judge had not granted a new trial, the appellate court would find reversible error and order one anyway. The denial of a new trial would have been an abuse of discretion; or, more accurately, the trial judge did not really have discretion to deny a new trial. Also, if the record makes apparent that the trial judge would grant a new trial on any one of several alternative grounds, then the appellate court should affirm if any of those grounds was a proper one for the trial judge to consider. These two reasons for affirmance may account for statements by several courts that an order granting a new trial will be affirmed if any cited ground would support the order. See, e.g., Commercial Nat’l Bank v. Missouri Pac. R.R., 681 F.2d 563, 565 (8th Cir.1980); Tramell v. McDonnell Douglas Corp., 163 Cal.App.3d 157, 209 Cal.Rptr. 427, 437 (1984); Kuzuf v. Gebhardt, 602 S.W.2d 446, 449 (Mo.1980) (en banc).
Turning to this case, the only appropriate ground for a new trial that the district court mentioned was the improper admission of expert testimony defining a security. The majority does not say that the error in admitting the testimony was reversible error. I do not think that it was; the prosecution witness properly defined the term, and misstatement of the law by Defendant’s own expert witnesses is hardly a proper ground for reversal. Thus, affirmance is possible only if the district court found, in the exercise of its discretion, that this particular error in itself created sufficient prejudice to require a new trial. The record does not establish that the district court so found. I quote the pertinent statements by the district court. (The district court said that the transcript of the proceeding would constitute its findings and conclusions.):
THE COURT: Okay. I am convinced that, after reading a very recent supreme court case, that the Howey definition of securities is still the law in New Mexico. And I am convinced, because of that, that my jury instruction to the jury in this case was erroneous, even though it did comply with the uniform jury instructions.
Last night, I thought about this case all night. This is — very seldom do I have a hard time sleeping because I can’t get a case or my job out of my mind. Usually, I make a decision and just go on about my business. I thought about this case all night and some things came to mind. One
is that I was convinced that the law in New Mexico was as proposed by the state. And I think the state, in good faith, proposed that instruction.
Obviously, since stating, again, that the uniform jury instruction stated that the standard for a securities — to the one issue, that it be primarily from the work or efforts of others and the Howey case stated that it had to be totally — why that is important to me is that this case was somewhat a battle of experts as to definitions and as to what made both a security and a commodity. I allowed both parties to present evidence and experts, basically telling the jury what they thought the law was. I’m not sure, on second thought, that that’s an appropriate way for this case to have proceeded.
If this case were to go on appeal, I think that would be found to be harmless error, because there was no objection from either side. But, what it does in this case is, when I gave the jury an instruction which went along specifically with the state’s proposed instruction and what the state’s experts said the law was, that gave the state’s expert a standard of credibility much more than the defendant’s.
Basically, the Court is saying that they agreed with the state’s experts, therefore, the state’s expert was right on everything. And I think that is error. I also am convinced that I made error in allowing Mr. Danek’s conviction to come in in this Court. I don’t think I should have done that and, under the circumstances, I think that was also error.
I don’t believe that the severance was error. I think that — in hindsight, obviously — if the — I think it helped the trial to the issues of the case and did away with problems, which are called “Bruton” problems. I think it was U.S. v. Bruton. I’m not sure. It’s a federal case, stating that the standard of having one person’s admissions to be used against either co-defendant or co-conspirator, without an exception to the hearsay rule, somehow would be reversible error. That did away with all those problems and I think it was an appropriate way to handle the case.
This is the first time I’ve done this in my many years as a judge. Under the circumstances, I find that the defendant’s motion for a new trial is appropriate and should be granted. And, as my only ruling here today — and I’m not going to address anything else. I obviously foresee an appeal, as to that ruling, by the state. When that is done, we’ll address all other issues that have been raised by both parties. Thank you.
PROSECUTOR: ... And I note that part of your reasons for granting the new trial was that you felt that the instruction on the test was erroneous.
THE COURT: Yes.
THE COURT: It’s the totality of the circumstances that I feel that I made erroneous rulings in this case; and, because of that, I feel the defendant didn’t get a fair trial.
Perhaps the district court would grant a new trial based solely on the error in admitting expert testimony. The only way to know is to remand. On remand the district court should “spell out his reasons as well as he can so that counsel and the reviewing court will know and be in a position to evaluate the soundness of his decision.” Rosenberg, supra, at 665-66; see State v. Ferguson, 111 N.M. 191, 197, 803 P.2d 676, 682 (Ct.App.) (Hartz, J., dissenting), cert. denied, 111 N.M. 144, 802 P.2d 1290 (1990). Although I question whether the error regarding expert testimony can justify a new trial, the district court’s reasoning, should it order á new trial, could be persuasive.
. As for the impact of the evidence of Defendant’s conviction on the charges against Defendant other than fraud, I agree with the majority that Defendant has not preserved an objection to the evidence on this ground. Also, in granting a new trial the district court did not refer specifically to the impact of the evidence of the prior conviction on the non-fraud charges against Defendant. Moreover, because Defendant testified at trial, evidence of the prior conviction was admissible to impeach his credibility. See SCRA 1986, 11-609. Thus, the prior conviction was not only admissible in the State's case-in-chief because of its relevance to the fraud charges, it was also admissible later on (during or after cross-examination of Defendant) with respect to all charges. This is an additional reason why the order granting a new trial could not be based on admission of evidence of Defendant's prior conviction.