State v. Flores, 32,709.

• Decision Date: 23 September 2014
• Docket Number: 32,709.,No. 34,940.,34,940.
• Citation: 340 P.3d 622
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Guadalupe FLORES, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

340 P.3d 622

STATE of New Mexico, Plaintiff–Appellee

v.Guadalupe FLORES, Defendant–Appellant.

32,709.

No. 34,940.

Court of Appeals of New Mexico.

Sept. 23, 2014.

Certiorari Granted, Dec. 19, 2014,

Gary K. King, Attorney General, Corinna Laszlo–Henry, Assistant Attorney General, Santa Fe, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender, Will O'Connell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

ZAMORA, Judge.

{1} Guadalupe Flores (Defendant) appeals her convictions for murder in the second degree, three counts of aggravated battery with a deadly weapon, and one count of aggravated battery on a household member. Defendant contends that systematic removal of Spanish-only speaking jurors from the jury panels from which her jury was chosen violated her right to a fair and impartial jury. Defendant also claims that the district court abused its discretion by failing to sever the charges, which stemmed from two separate incidents. We conclude that Defendant failed to establish a prima facie case of systematic exclusion of Spanish-only speakers from jury panels. We further conclude that the district court did not abuse its discretion in denying Defendant's motion to sever. Accordingly, we affirm.

BACKGROUND

{2} Defendant and Anthony Mah (Mah) were romantically involved, lived together, and had four children together. The charges against Defendant stemmed from two separate incidents involving Defendant and Mah; one occurred in February 2011, and the other in November 2011.

{3} On February 12, 2011, Defendant went looking for Mah, who was out. Defendant found Mah sitting in his parked vehicle outside a residence with a female passenger. Defendant was upset. Witnesses reported seeing Defendant drive her vehicle into the back of Mah's vehicle several times. Defendant later told police that she had run into Mah's car because he was with another woman. Defendant was charged with aggravated battery on a household member.

{4} Defendant and Mah continued their relationship. On November 1, 2011, Mah was driving around with a friend, Brandon Vann (Vann), and three female passengers. Defendant spotted the group and approached their vehicle. When Mah noticed Defendant, he drove away and Defendant followed in her vehicle. Defendant pursued Mah and rear-ended the vehicle he was driving multiple times. Eventually, as Mah began to pull to the side of the road, Defendant hit the vehicle from the side, and the vehicle flipped several times. Vann was pronounced dead at the scene. Following the crash, Defendant was charged with one count of second degree murder and four counts of aggravated battery with a deadly weapon.

{5} The charges against Defendant from the February incident and the November incident were joined. Prior to trial Defendant moved to sever the charges. The motion was denied and the matters were tried jointly. Defendant was convicted of all charges.

{6} Defendant moved for a new trial after learning that all prospective jurors who spoke Spanish only and required an interpreter were systematically excluded from the jury panels from which her trial jury was selected. The district court held a hearing on the issue. The court clerk responsible for selecting jury panels testified at the hearing. The clerk testified that in creating jury panels, she put all Spanish-only speaking prospective jurors on one panel in order to minimize the cost of interpreters. In this case, the jury pool was comprised of approximately one thousand prospective jurors. The clerk divided them into five panels and assigned all Spanish-only speakers to panel three. Defendant's jury was selected from panels one and two. In her motion for a new trial, Defendant claimed that the clerk's practice deprived her of a fair and impartial jury. The motion was denied. This appeal followed.

DISCUSSION

A. Systematic Exclusion of Prospective Jurors

1. Preservation

{7} The State argues that Defendant failed to preserve her objection to the composition of the jury venire because she failed to alert the district court to the basis of her claim with the requisite specificity to satisfy preservation requirements. We disagree.

{8} Rule 12–216 NMRA provides that a question is preserved for appellate review if it “appear[s] that a ruling or decision by the district court was fairly invoked ... [and f]urther, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice the party.”

The primary purposes of the preservation requirements are: (1) to specifically alert the district court to a claim of error so that the error may be corrected at that time, (2) to allow the opposing party adequate opportunity to respond to a claim of error, and (3) to create a sufficient record to allow this Court to make an informed decision regarding the contested issue.

State v. Moncayo, 2012–NMCA–066, ¶ 5, 284 P.3d 423.

{9} In this case, Defendant was not aware of the clerk's jury panel selection procedures until after her trial. Once Defendant became aware that Spanish-only speaking prospective jurors were excluded from the two jury panels from which her jury was selected, she moved for a new trial. The State responded, and the district court held a hearing on the motion. At the hearing, the court clerk testified regarding her jury panel selection process. After hearing the testimony and arguments from the parties, the district court ruled on the merits of the motion. Because the district court was alerted to Defendant's claim of error and had a sufficient opportunity to fully address it, the issue was sufficiently preserved for our review.

2. Waiver Pursuant to NMSA 1978, § 38–5–16 (1969)

{10} The State also argues that because Defendant did not object to the jury venire composition prior to the empaneling of the jury, Defendant waived her right to object under Section 38–5–16. We are not persuaded.

{11} Determining whether Section 38–5–16 bars Defendant's objection to the clerk's jury selection process even though Defendant was not aware of the procedure until after her trial is an issue of statutory interpretation. Accordingly, our review is de novo. United Rentals Nw., Inc. v. Yearout Mech., Inc., 2010–NMSC–030, ¶ 7, 148 N.M. 426, 237 P.3d 728. The guiding principle when construing statutes is to “determine and give effect to legislative intent.” OS Farms, Inc. v. N.M. Am. Water Co., 2009–NMCA–113, ¶ 19, 147 N.M. 221, 218 P.3d 1269 (internal quotation marks and citation omitted). To discern the Legislature's intent, “we look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended.” Marbob Energy Corp. v. N.M. Oil Conservation Comm'n, 2009–NMSC–013, ¶ 9, 146 N.M. 24, 206 P.3d 135 (alteration, internal quotation marks, and citation omitted). Statutory language that is clear and unambiguous must be given effect. Trinosky v. Johnstone, 2011–NMCA–045, ¶ 11, 149 N.M. 605, 252 P.3d 829.

{12} Section 38–5–16 states, in pertinent part, that a criminal defendant “may challenge the jury panel on the ground that the members thereof were not selected substantially in accordance with law.... Such a challenge is waived if not raised before the trial jury panel has been sworn and selection of the trial jury commenced.” By definition, waiver is “[t]he voluntary relinquishment or abandonment ... of a legal right or advantage[.]” Black's Law Dictionary 1717 (9th ed.2009). “The party alleged to have waived a right must have had both knowledge of the existing right and the intention of forgoing it.” Id.

{13} In this case, Defendant was not aware of the clerk's policy to segregate Spanish-only speaking prospective jurors at the time her jury was being empaneled. She could not have objected to the procedure in accordance with Section 38–5–16 because she did not know that her objection was warranted until after her trial. We do not believe that the Legislature intended for Section 38–5–16 to bar objections to unlawful jury selection where a party does not know the selection process has been unlawful prior to swearing in the prospective jury panel and jury selection has been commenced. We decline to apply the statute in that way. See State v. Stevens, 2014–NMSC–011, ¶ 15, 323 P.3d 901 (“It is the high duty and responsibility of the judicial branch of government to facilitate and promote the [L]egislature's accomplishment of its purpose. Although we look first to the language of the statute, we will reject a formalistic and mechanical statutory construction when the results would be absurd, unreasonable, or contrary to the spirit of the statute.” (internal quotation marks and citation omitted)). Accordingly, we conclude that Defendant did not waive her right to object to the composition of the jury venire.

3. Representative Cross–Section of the Community

{14} We turn now to Defendant's claim that she was deprived of a fair and impartial jury as a result of the systematic exclusion of Spanish-only speakers from the majority of jury panels in Curry County. Article II, Section 14 of the New Mexico Constitution entitles criminal defendants to a “trial by an impartial jury,” which requires that the jury represent a “fair cross[-]section of the community.” State v. Aragon, 1989–NMSC–077, ¶¶ 5, 25, 109 N.M. 197, 784 P.2d 16. Defendant relies heavily on Aragon to support her contention that the systematic exclusion of Spanish-only speakers from jury panels is unconstitutional.

{15} However, Defendant's reliance on Aragon is misplaced. Aragon involved a constitutional challenge to a prosecutor's purposeful, discriminatory, and systematic exercise of peremptory strikes to exclude members of a cognizable racial group from the jury panel. Id. ¶¶ 9, 15–16. This type of alleged violation requires an examination of the prosecutor's conduct, and inferences that can be made about the prosecutor's discriminatory intent. Id. ¶ 17 (“[T]he party may show...