# State v. Day

> New Mexico Supreme Court · March 14, 1980 · 94 N.M. 753

URL: https://www.frixlaw.com/law-library/cases/9538303

## Case

- **Full name:** STATE of New Mexico, Plaintiff-Appellee, v. Michael Marvin DAY, Defendant-Appellant
- **Court:** New Mexico Supreme Court
- **Decided:** March 14, 1980
- **Citations:** 94 N.M. 753; 617 P.2d 142
- **Precedential status:** Published
- **Opinion:** Dissent by Sosa
- **Judges:** Felter, Easley, Payne, Federici, Sosa
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9538303

## How later opinions describe it (automated extraction)

- noting cross-examination of defendant concerning prior robbery conviction was permissible under Rule 609 in light of fact that robbery involves dishonesty

## Opinion text

SOSA, Chief Justice (dissenting).
The general rule is that a person may be retried after a mistrial is granted at his request. But where the mistrial was caused by bad faith on the part of the prosecutor, there is a double jeopardy bar against retrial. In Day II the Court of Appeals held that the prosecutor’s conduct was “purposeful * * * and could not be rectified by admonitions from the trial court.”
I read Lee v. United States, 432 U.S. 23 , 97 S.Ct. 2141 , 53 L.Ed.2d 80 (1977), as barring reprosecution if the underlying error was “ ‘motivated by bad faith or undertaken to harass or prejudice.’ ” Id at 33, 97 S.Ct. at 2147 .
Prosecutorial over-reaching has been held to be a bar to a second trial. United States v. Kessler, 530 F.2d 1246 (5th Cir. 1976).
I view the prosecutorial misconduct here as both over-reaching and motivated by bad faith, and would therefore reverse.
For the foregoing reasons I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9538303. Public record. Not legal advice.