(specially concurring).
I join in Judge Bivins’ opinion. I write separately primarily to address the dissent.
The question whose answer divides this panel is: When should an appellate court ignore a clear outcome-determinative error by the trial court? I have no hesitation in calling such an error “fundamental.”
Although the dissent rejects the view that the error here was “fundamental,” it does not appear to dispute the nature of the error. It states that the appellate issue “probably” satisfies two requirements of the test set forth in United States v. Krynicki, 689 F.2d 289 (1st Cir.1982): (1) “the new issue is purely legal and its resolution would not be aided by further fact development” and (2) “the proper resolution of the issue is not in doubt.” In addition, one cannot doubt that the error was outcome-determinative. We are not remanding for a new hearing on whether the felony charge should be dismissed. We are not saying, for example, that the trial court failed to consider certain evidence or a particular legal principle and now needs to reconsider its decision. We are saying that the ruling was simply wrong.
As an appellate court whose duty is to correct legal error, our initial instinct should be to reverse when we see clear, outcome-determinative error. To justify failure to act, there must be some strong countervailing policy. Reversal in this case would violate no such policy. I will address the policy arguments raised in the dissent and in the appellate briefs.
The dissent states that addressing issues that were not first presented to the trial court “would erode the moral authority of the trial bench.” This contention misconceives the role and authority of judges in a free society. The sole authority of the trial bench is to do what the law compels or permits. The trial bench has no “moral authority” to rule contrary to the law. The authority that the dissent would protect is the authority of men and women regardless of whether they act in excess of their rightful powers. Our concern instead should be the authority of the law. In the outdated language of John Adams in the Declaration of Rights of the Massachusetts Constitution, this nation strives to be a “government of laws and not of men.” Mass. Const, pt. 1, art. XXX. Although we should always display respect and understanding for the trial court, the prestige of the trial court is not a proper consideration in deciding whether to reverse. When we tell the public and the practicing bar, “Yes, the judge made an error, but we do not want to erode the judge’s authority by reversing the judge’s decision,” we may enhance the authority of the judge, but we undermine confidence in the administration of justice. New Mexico has no need for the authority of the autocrat.
Perhaps the point being made by the dissent is that judges undoubtedly feel frustration at being reversed on grounds that were not presented to them and, as stated by amicus, “[i]t is simply unfair and disrespectful to reverse a trial judge who has properly decided the issues presented by the parties for ‘error’ that he or she did not commit.” Yet, it is probably more disrespectful to reverse a judge when the issue has been squarely presented and well-argued at trial than when it has not been raised at all; in the former situation the appellate court is saying that the trial court erred without any excuse. Also noteworthy is the alacrity with which this Court affirms lower court rulings on grounds that were not raised below or that were even rejected by the trial court. See, e.g., State v. Beachum, 83 N.M. 526, 527, 494 P.2d 188, 189 (Ct.App.1972). When we affirm in this circumstance we are saying that the trial court committed two legal errors — adopting an incorrect ground and not adopting a correct one. Is it really more respectful to say that a judge stumbled onto the right result despite two errors than to say that the judge erred just once?
As for the “unfairness” to the judge in reversing a decision on a ground not presented to the judge, this is a matter of degree. Suppose that the following exchange had occurred during the fifty-minute hearing on Defendant’s motion to dismiss:
Prosecutor: Anyway, Your Honor, this is all just one prosecution, so there is no double-jeopardy issue.
Judge: Do you have any authority for that proposition?
Prosecutor: No.
I am confident that this Court would find that the prosecutor’s statement sufficed to preserve the ground on which we reverse. If a legal proposition is stated by counsel, preservation of the issue does not depend upon citation to authority. It is not uncommon for this Court to find that a ground for objecting to a ruling was preserved by a brief comment buried in a long discourse and unsupported by any reference to precedents, although our opinions generally do not discuss the matter of preservation in any detail. See, e.g., State v. Rodriguez, 114 N.M. 265, 837 P.2d 459 (Ct.App.1992) (defendant preserved ground in one sentence during lengthy hearing and without citation to any case law or any argument as to prejudice). In terms of “fairness” to the judge, I see little difference between the hypothetical and the present case.
A. second concern expressed by the dissent is that recognition of the doctrine of fundamental error will, at least in appeals by the State, effectively eliminate the general requirement that issues be preserved in the trial court. That concern is misplaced. Krynicki was decided more than ten years ago. It is still good law in the First Circuit. Yet, apparently no subsequent reported federal case has applied the doctrine of fundamental error in favor of the government in a criminal appeal. The dissent notes that no state court has followed Krynicki. But neither has any rejected the opinion. The matter simply has not arisen. The leading case on the entire subject, Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941), which allowed the Internal Revenue Service to prevail against a taxpayer on a ground raised for the first time on appeal, has been cited much more often than it has been followed.
There are two principal reasons why appellate courts would rarely reverse on grounds of fundamental error under the guidelines we adopt today. First, most appellate issues have a factual component. When there has been no reason to develop the pertinent facts at the trial-court level (because the issue to which the facts are relevant was not raised), the error cannot be clear. Also, when the law is clear to the appellate court, it is generally well known to trial counsel and has therefore been raised below. During my five years on this Court, several appeals have presented the occasion to apply the doctrine of fundamental or plain error in favor of the defendant, see, e.g., State v. Bencomo, 109 N.M. 724, 790 P.2d 521 (Ct.App.1990); State v. Crislip, 109 N.M. 351, 358, 785 P.2d 262, 269 (Ct.App.) (Hartz, J., specially concurring), cert. denied, 109 N.M. 262, 784 P.2d 1005 (1989), but I have never before encountered an appeal by the State in which the requirements set forth in Judge Bivins’ opinion have been satisfied. Occasionally, one may be puzzled that the State did not raise a particular legal theory at trial, but failure to raise the theory almost invariably led to the failure of the State to develop the facts pertinent to a determination of the applicability of the theory to the case. In other circumstances, it may seem that a particular argument not made by the State would have been a good one, but it is not “clear” what the law is.
Perhaps the opinion in this case will cause a small surge in the number of appeals by the State in which the State argues fundamental error, but I suspect that the lack of success encountered by the State in making those arguments will lead within a short time to better use of the Attorney General’s resources. Unlike defense counsel, the Attorney General has no ethical obligation to raise a ground on appeal when he thinks that the ground is unlikely to prevail and that raising the ground may only harm his credibility with the appellate court.
Even if the Attorney General decides to be aggressive in pursuing the issue, I do not see acceptance of the doctrine of fundamental error in appeals by the State as increasing to any material extent the burden on the appellate courts. The dissent says that by recognizing the doctrine of fundamental error we magnify our workload because we must always decide two issues: (1) whether to address the merits, and (2) the merits. The magnification, however, is minimal. The merits should not require much work because Judge Bivins’ opinion restricts application of the fundamental error doctrine in appeals by the State to only cases of “clear” error. If the appellate court has difficulty with the issue, that in itself is ordinarily reason enough not to address the issue when it was not raised below. As for the question whether to address the merits, the difficulty should be no greater — and probably much less — than the difficulty in deciding whether to affirm, for a reason not raised below.
Nor am I persuaded that criminal defendants are denied any protected right by permitting the State to argue fundamental error on appeal. The State’s right to appeal in criminal cases was extremely limited until Article VI, Section 2 of the New Mexico Constitution was amended in 1965 to add “an aggrieved party shall have an absolute right to one appeal.” See State v. Santillanes, 96 N.M. 482, 484-86, 632 P.2d 359, 361-64 (Ct.App.1980), rev’d on other grounds, 96 N.M. 477, 632 P.2d 354 (1981); cf. Ex parte Carrillo, 22 N.M. 149, 158 P. 800 (1916). In construing the amendment, we have written, “The State is without question a party to every criminal proceeding in the district courts; a claim of disposition contrary to law is a valid and legal grievance which indisputably makes the State ‘an aggrieved party.’ ” Santillanes, 96 N.M. at 486, 632 P.2d at 364. The Constitutional policy permitting appeals by the State in criminal eases has been buttressed by legislative policy. See NMSA 1978, § 39-3-3(B) (Repl.Pamp.1991). Given this public policy expressed by Constitution and statute, I see no protectable interest of a criminal defendant in benefitting from an error that can be corrected on appeal, subject of course to the Constitutional prohibition against the government’s appeal of certain matters, such as acquittals. As stated by Judge Wood in his separate opinion in Santillanes, “The public, as well as defendant, is entitled to fair play.” 96 N.M. at 489, 632 P.2d at 367. I fail to understand the dissent’s apparent position that the public interest in the prosecution of crime is the only interest not worthy of protection by application of the fundamental-error doctrine. I question whether there is a lesser public interest in the prosecution of crime than in the collection of taxes. See Hormel (applying fundamental error to permit IRS to collect taxes on theory not raised at trial). Moreover, it is not a proper role for a court to decide, as suggested by the dissent, that there is no fundamental error because prosecution of a felony in some particular circumstance is not important.
Along the same lines, I reject the contention by amicus that application of the doctrine of fundamental error in favor of the State places the court in the position of an advocate. Applying the law — particularly “clear” law — is a duty of the court as an arbiter, not as an advocate. A trial court can properly rule in favor of the State on evidentiary and other matters on grounds not raised by the prosecutor. As I have already noted, appellate courts regularly affirm convictions on grounds not raised by the State. The appellate court’s duty to apply the law impartially does not require the court to close its eyes to legal error.
There is, however, one policy argument of substantial weight. Appellate procedures should encourage thorough preparation at the trial level. To be sure, the influence of appellate procedure on trial preparation should not be exaggerated. I doubt that adoption of the fundamental-error doctrine in favor of the State will encourage sloppiness and negligence. Prosecutors are unlikely to think that they can ignore their legal homework on the belief that any resulting loss can be corrected on appeal. Prosecutors generally have only one opportunity to obtain a conviction. Nor is there likely to be any tactical advantage to the State in failing to raise a sound argument at the trial level. Defendant has made no suggestion of sandbagging by the prosecutor in this case. Nonetheless, rejection of the doctrine of fundamental error could encourage additional training and preparation by prosecutors. For that reason alone, one might be reluctant to consider a claim of fundamental error when a properly trained and prepared prosecutor should be expected to raise the issue in the lower court. That is not the situation here.
Defendant’s claim of double jeopardy was raised a few minutes before trial was scheduled to start, immediately after the trial court accepted Defendant’s pleas to the misdemeanor charges. Defense counsel requested that the matter be taken under advisement until the State presented its case. The court promptly agreed. The hearing on the motion was conducted that afternoon after the State rested its case. The time available for the prosecutor to research the issue was rather short, particularly in light of the demands of the trial itself. This state’s district court libraries are not the most complete. Although at oral argument amicus contended that any competent prosecutor would have known to raise Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), in response to Defendant’s double-jeopardy argument, I disagree. The proposition stated in Johnson that controls this case does not arise frequently in published decisions and is not generally known; the proposition has not been cited in any published decision in New Mexico. It is not that surprising that the prosecutor did not discover Johnson. Moreover, defense counsel, who brought the double-jeopardy motion, had a better opportunity than the prosecutor to find the opinion. I assume that defense counsel did not in fact find Johnson, because if he did, his failure to alert the trial court to the opinion would have been a breach of his ethical responsibility to cite controlling contrary authority. See SCRA 1986, 16-303(A)(3) (Repl.Pamp.1991) (applicable rule of professional conduct).
In short, I do not believe that one can assume that in the circumstances presented here a properly trained and prepared prosecutor would have found Johnson or even thought of the legal proposition decided in Johnson. The policy of encouraging training and preparation of prosecutors does not support rejection of the application of fundamental-error doctrine to this appeal.
On the contrary, if one’s underlying concern is to encourage thorough preparation of matters in the trial court, this Court advances that end by considering the issue here. I cannot fault the trial court for failing to apply Johnson, but the manner in which the trial court considered Defendant’s motion was an invitation to sloppy practice and even sharp tactics. Motions of this type should be given full consideration free of the pressures of a trial, when much attention is necessarily focused elsewhere. SCRA 1986, 5-601(D) (Repl.1992), which governs criminal procedure in district court, provides: “Ml motions, unless otherwise provided by these rules or unless otherwise ordered by the court, shall be made at the arraignment or within 20 days thereafter, unless upon good cause shown the court waives the time requirement.” Mthough acknowledging the need for exceptions from inflexible timeliness requirements, the rule clearly recognizes the advantages of a motion practice divorced from trial proceedings.
The best procedure in this case would have been for Defendant to plead guilty to the misdemeanors far enough in advance of the trial that a hearing on a motion to dismiss the remaining felony count could have been conducted well before any jury was empaneled. The timing of the plea here was not at all the responsibility of the State. Even if, contrary to Johnson, the trial court determined that the motion could not be decided prior to presentation of the State’s evidence, the hearing on the motion still should not have been conducted during trial. When a defendant raises a dispositive motion or a motion to suppress on the eve of trial or during trial, the trial court should ordinarily reserve ruling on the motion until after the jury renders a verdict. Then the matter can be given more focused attention by counsel and the court. My impression is that attorneys and judges are not familiar with the advantages of conducting post-verdict hearings on untimely motions. Judges are understandably reluctant to deny as untimely a defendant’s motion that may have merit. But the choice need not be between (1) outright rejection of a potentially meritorious motion and (2) interrupting trial to consider the motion. When a motion is raised at the last moment, it is appropriate to require the defendant to await a verdict before the court resolves the motion. If the verdict is an acquittal, the motion is moot. If the verdict is a conviction, the State generally can appeal an adverse ruling on the motion without violating the defendant’s rights under the double-jeopardy clause. See United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976).
To reject application of the doctrine of fundamental error in the situation presented by this case is to encourage defense counsel to raise motions of this sort on the eve of trial and to countenance the practice by trial courts of hearing these motions and deciding them during the course of trial.1 Such procedures encourage sloppy, even reprehensible, practices. In sum, the only ground that could justify refusing to apply the doctrine of fundamental error — that ground being encouragement of proper preparation and presentation of issues at the trial level — actually argues for reversal in this case.
. In the future it might be appropriate to refuse to apply fundamental error in a situation like the present case unless the prosecutor had sought more preparation time by requesting a post-verdict hearing and the judge had rejected the request. An adequate reason not to adopt that position here is that the possibility of conducting a post-verdict hearing on a pre-verdict motion .is not sufficiently well known that one could expect the prosecutor to have urged the procedure.