prosecutorial misconduct that we addressed above, sufficient to warrant dismissal on due process grounds. Although the trial court did not refer to it in its conclusions, we have noted the test set out in Abbati 493 A.2d at 521-22, in determining whether a subsequent retrial violates principles of fundamental fairness. See Cordova, 1999-NMCA-144, ¶ 18, 128 N.M. 390, 993 P.2d 104; State v. House, 1998-NMCA-018, ¶ 55. 124 N.M. 564. 953 P.2d 737. rev’d on other grounds, 1999-NMSC-014, 127 N.M. 151, 978 9 (1995) (relying on fundamental fairness); People v. Kirby, 92 A.D.2d 848, 460 N.Y.S.2d 572, 573-74 (1983) (acknowledging court’s inherent authority to terminate prosecution following mistrials based on deadlocked juries); but see United States v. Brown, 602 F.2d 1073, 1076 (2d Cir.1979) (<HOLDING>); People v. Sierb, 456 Mich. 519, 581 N.W.2d
holding courts lacked power to dismiss indictment following mistrial based upon hung jury in the interests of justice holding that the trial court erred in denying the defendants motion in arrest of judgment when the indictment lacked a material element and it was not apparent that the grand jury based the indictment on facts that satisfy this element of the crime and that the only permissible cure was to send the matter back to the grand jury holding that in the situation of a possible dismissal of an indictment because of possible grand jury tampering  only where knowing perjury relating to a material matter has been presented to the grand jury should the trial judge dismiss an otherwise valid indictment holding that although the trial justice did not adopt the specific language that defendant requested be used in instructing the jury    the trial justice adequately and accurately instructed the jury as to that element of the charge holding that trial court had discretion to relax the thirtyday rule in the interests of justice