State v. Casillas

• Decision Date: 12 January 2009
• Docket Number: No. 27,194.,27,194.
• Citation: 2009 NMCA 034,205 P.3d 830
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Darrell CASILLAS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

205 P.3d 830

2009 NMCA 034

STATE of New Mexico, Plaintiff-Appellee, v. Darrell CASILLAS, Defendant-Appellant.

No. 27,194.

Court of Appeals of New Mexico.

January 12, 2009.

Certiorari Denied, No. 31,548, March 5, 2009.

Gary K. King, Attorney General, Andrew S. Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellee.

Hugh W. Dangler, Chief Public Defender, Navin H. Jayaram, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

FRY, Judge.

{1} Defendant Darrell Casillas appeals from his convictions for two counts of criminal sexual penetration in the first degree (child under thirteen), five counts of criminal sexual contact in the second degree (child under thirteen), and one count of criminal sexual contact in the third degree (child under thirteen). On appeal, Defendant seeks a new trial, contending that the district court (1) erroneously denied his motion to strike the jury pool as not representing a cross-section of the community, (2) improperly denied his motion requesting the court to ask potential jurors whether they had seen him in shackles, and (3) abused its discretion in a number of evidentiary rulings more fully discussed below. We affirm.

BACKGROUND

{2} In 2005, Defendant was living with his girlfriend and her four children. On April 13, 2005, the oldest of the four children, M.R. (Victim) told her mother that Defendant had molested her on five occasions between January 2005 and April 2005. Victim alleged that Defendant penetrated her vagina with his fingers, touched her breasts and stomach, and touched her vagina over her clothes on various occasions while her mother was working, and on one occasion while her mother was taking a nap. Defendant left the home after Victim made the allegations. The next day, Victim's mother took her to be examined by a sexual assault nurse examiner. Victim was later interviewed at the OASIS Child Advocacy Center and testified before a grand jury.

{3} Defendant was charged with two counts of first degree criminal sexual penetration, five counts of second degree criminal sexual contact of a minor, and one count of third degree criminal sexual contact of a minor. The State filed a motion in limine to exclude any evidence of Victim's alleged past sexual conduct or reputation regarding past sexual conduct under NMSA 1978, § 30-9-16(A) (1993), known as the rape shield statute, and under Rule 11-413(A) NMRA, on the ground that such information was irrelevant, immaterial, and unfairly prejudicial to Victim. At a pretrial hearing, the district court granted the State's motion to exclude evidence that Victim had previously made false allegations of a sexual nature against a different individual.

{4} Defendant filed a motion to strike the jury pool, asserting that he was deprived of an impartial jury of his peers because the pool did not represent a fair cross-section of the community. The district court denied the motion, finding that the jury had been assembled in accordance with the statute governing jury selection. NMSA 1978, § 38-5-3 (2007). The parties then stipulated to a continuance of the trial, and a new jury venire was assembled.

{5} A few days prior to trial, Defendant filed a motion asking the court to order a psychological evaluation of Victim pursuant to NMSA 1978, § 30-9-18 (1987). The motion was based upon several of Victim's statements from the OASIS interview and Victim's mother's testimony about Victim's mental state. After holding an evidentiary hearing and reviewing a DVD of the OASIS interview, the court denied Defendant's motion, concluding that Victim sounded rational and had a firm grasp of the facts and her emotions.

{6} On the morning of trial, Defendant filed a second motion to strike the jury pool, citing to United States census data to support his assertion that Hispanics were under-represented. Defendant argued that because the court clerk was too lenient in excusing potential jurors and because jury summonses were not in Spanish, there was a negative impact on the number of Hispanics reporting for jury duty. The district court denied Defendant's motion and instructed the parties to go forward with jury selection.

{7} During voir dire of the potential jurors, one individual said that he had seen Defendant being escorted by two police officers, which led him to believe that Defendant was already incarcerated. The juror was disqualified because he made various other comments about the State's burden of proof and stated that seeing Defendant escorted by the officers "defeats the purpose" of trial. Defendant then moved that each potential juror be brought into the courtroom individually to be questioned as to whether they had seen Defendant escorted by police officers or in shackles. The district court denied Defendant's motion on the ground that drawing attention to the issue would be more likely to result in jury prejudice.

{8} The court instead opted to hold an evidentiary hearing to determine whether the jury could possibly have seen Defendant in shackles inside the courtroom. Counsel questioned the officers who escorted Defendant and a paralegal for the defense who had stopped the officers from entering the courtroom with Defendant in shackles. Based upon the testimony, the court found that since Defendant did not fully enter the courtroom in shackles, there was no reason to believe the jury had been tainted. Following a two-day trial, Defendant was found guilty of all charges.

DISCUSSION

1. Motion to Strike Jury Pool

{9} Defendant argues that the district court erroneously denied his motion to strike the jury pool under NMSA 1978, § 38-5-16 (1969). This presents a mixed question of law and fact that we review de novo. United States v. Alanis, 265 F.3d 576, 583 (7th Cir.2001).

Preservation

{10} The State argues that Defendant failed to preserve this issue for appeal because he did not cite the Sixth and Fourteenth Amendments to the United States Constitution in support of his argument. We disagree. Defendant clearly argued that he had been deprived of a jury pool representing a fair cross-section of the community and he invoked a definite ruling on this argument from the trial court. See State v. Hodge, 118 N.M. 410, 418, 882 P.2d 1, 9 (1994) ("One preserves an issue for appeal by invoking a ruling from the court on the question[.]" (emphasis omitted)). Because Defendant's argument was obviously based on the constitutional right to a fair and impartial jury, we review Defendant's argument based on the United States Constitution. See Rule 12-216(B)(2) NMRA.

{11} On the other hand, we decline to review Defendant's argument to the extent that it relies on the New Mexico Constitution and the Treaty of Guadalupe Hidalgo. In his motion to strike the jury, Defendant cited Article VII, Section 3 of the New Mexico Constitution, which protects the rights of New Mexicans to vote, hold office, and sit upon juries, but it does not protect a defendant's right to an impartial jury. See N.M. Const. art. VII, § 3. That provision does not correspond to the impartial jury provision of the Sixth Amendment to the United States Constitution or to the equal protection guarantees of the Fourteenth Amendment. See U.S. Const. amends. VI, XIV. Defendant did not argue before the district court that the rights of New Mexico jurors were being violated, and the district court did not make a ruling on that issue. Defendant did not cite N.M. Const. art. II, § 14, the provision that protects the right to an impartial jury. Therefore, he did not preserve any argument under the state constitution. See State v. Janzen, 2007-NMCA-134, ¶ 11, 142 N.M. 638, 168 P.3d 768 (holding that preservation for review requires a fair ruling or decision by the district court in order to provide the lower court with an opportunity to correct any mistake, give the opposing party an opportunity to demonstrate why the district court should rule in its favor, and create a record which enables this Court to make informed decisions).

{12} Similarly, while Defendant also cites the Treaty of Guadalupe Hidalgo in his reply brief, he fails to explain how the treaty supports his argument that he was deprived of a fair and impartial jury. Because Defendant did not clearly develop his arguments based upon the New Mexico Constitution or the Treaty of Guadalupe Hidalgo, we do not consider them on appeal. Reule Sun Corp. v. Valles, 2008-NMCA-115, ¶ 19, 144 N.M. 736, 191 P.3d 1197 (refusing to consider the application of a statute to the facts of the case where neither party fully developed an argument based upon the statute), cert. granted, 2008-NMCERT-008, 145 N.M. 255, 195 P.3d 1267.

Representative Cross-Section of the Community

{13} We turn now to Defendant's challenge under the United States Constitution. On the morning of trial, Defendant moved to strike the jury pool under Section 38-5-16, arguing that the panel did not represent a cross-section of the community and that he would, therefore, be deprived of a fair and impartial jury. In order to show a prima facie violation of the fair cross-section requirement, a defendant must demonstrate that (1) the group alleged to be excluded is a "distinctive" group in the community, (2) the group's representation in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) this under-representation results from the systematic exclusion of the group in the jury-selection process. See State v. Lopez, 96 N.M. 456, 459, 631 P.2d 1324, 1327 (Ct.App.1981) (citing Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)).

{14} The distinctive group Defendant alleges to have been excluded from the jury pool is the Hispanic population of Roosevelt County. We assume without deciding that Hispanics are a distinctive group within the community with regard to representation on jury venires.

{15} To show that the number of Hispanics on jury...