State v. Gardner, 22,321.

Citation134 N.M. 294,76 P.3d 47
Decision Date19 June 2003
Docket NumberNo. 22,321.,22,321.
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. James GARDNER, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Patricia A. Madrid, Attorney General, Max Shepherd, Assistant Attorney General, Albuquerque, NM, for Appellee.

James W. Klipstine, Jr., James W. Klipstine, Jr., L.L.C., Hobbs, NM, for Appellant.

Certiorari denied, No. 28,158, August 14, 2003.


FRY, Judge.

{1} Defendant James Gardner appeals his conviction, after a jury trial, of four counts of criminal sexual contact of a minor (CSCM) in the third degree. See NMSA 1978, § 30-9-13 (2001). His challenge to the trial court's judgment and sentence raises five issues: (1) whether the trial court should have granted a mistrial based on an alleged comment by a member of the venire, (2) whether the State's questioning in voir dire denied Defendant a fair and impartial jury, (3) whether the trial court properly instructed the jury on the elements of CSCM, (4) whether substantial evidence supported Defendant's convictions, and (5) whether the sentencing proceedings violated Defendant's due process rights. For the following reasons, we affirm.


{2} At the time of the alleged incidents, Defendant worked as an assistant principal in Hobbs, New Mexico. He had regular contact with students, and he often hugged them. Five female students claimed that Defendant had touched their breasts while hugging them. Specifically, they reported that Defendant had hugged them from the side, while standing next to them, and that when doing so he put his arm around their backs and under their arms so that his hand rested on or cupped their breasts. A sixth female student claimed that Defendant had touched her buttocks while she stood on a chair working on a bulletin board. Following an investigation into these allegations, the State charged Defendant with six counts of CSCM. A jury convicted Defendant of four counts and found him not guilty of two counts. The trial court sentenced Defendant to three years on each of the four counts, to run concurrently, followed by two years on parole.

I. Denial of Defendant's Motions for Mistrial

{3} Defendant contends that bias exhibited by Juror 18, who was excused from jury service and replaced with an alternate during the trial, tainted the entire jury. According to Defendant, therefore, the trial court erred in denying his motions for a mistrial. The State counters that, even if Juror 18 displayed bias, there is no evidence that her bias had any prejudicial effect on other jurors. In addition, the State contends that if there had been prejudice, the appropriate remedy was for Defendant to request a curative voir dire or an admonition to disregard. "We review a trial court's denial of a motion for mistrial under an abuse of discretion standard." State v. Gonzales, 2000-NMSC-028, ¶ 35, 129 N.M. 556, 11 P.3d 131.

{4} The alleged biased statement or statements by Juror 18 occurred during voir dire. Defendant's arguments on this issue require some context about the particular voir dire process employed by the trial court. On Defendant's motions, the trial court allowed supplemental jury questionnaires and individualized voir dire. During the individualized voir dire, the majority of the potential jurors remained seated in the courtroom. The trial judge and counsel for both parties then adjourned to the judge's chambers. The bailiff facilitated the selection process by seating groups of four to five potential jurors on a bench in the hallway outside the judge's chambers. Each juror was individually interviewed in chambers. Afterwards, on the return trip to the courtroom, each juror went back through the hallway, passing the subgroup of jurors waiting for their individual interviews. As a potential juror went into chambers for voir dire, a new potential juror from the courtroom was added to the group in the hallway. In this manner, voir dire took place for about a day and a half. The trial began in the afternoon after the completion of jury selection. During the first afternoon of trial, the State gave its opening statement and presented the testimony of five witnesses.

{5} The following morning, prior to resuming in-court proceedings, the trial judge called the case in chambers before counsel only. The judge informed counsel that Juror 22, who had not been selected for the jury, had approached him outside of the courtroom regarding a comment made by Juror 18, who had been selected to serve. The trial judge investigated the matter further by calling in Juror 22 and questioning her under oath. Juror 22 testified that when Juror 18 walked through the hallway after being questioned in chambers, she said "He's guilty, oh, but not really," or something similar, and also made a motion like cutting her throat. Juror 22 further testified that she did not think much of the statement at the time, but that when she subsequently heard that Juror 18 had been selected, she thought it was important to convey the overheard comment to the trial court. Regarding the other jurors who also might have overheard the comment, Juror 22 stated that in the hallway with her were a man who feeds cows, a girl named Linda (probably Juror 15), and a juror she identified by name (Juror 19).

{6} After the trial judge excused Juror 22, the State suggested calling in Juror 18 for questioning, while Defendant moved for a mistrial on the basis that there was too much risk of a tainted jury. The trial court took the motion under advisement and then proceeded with in-chambers questioning of Juror 18, who denied making the comment in the hallway. However, she admitted making a "teasing" comment in the courtroom along the lines of "I should just tell them just to hang him high." She implied that this comment was in the context of joking about intentionally trying to be disqualified. Defendant renewed his motion for a mistrial, arguing that the interview revealed an additional prejudicial comment. The trial court excused Juror 18 from service, but declined to grant a mistrial, noting the lack of evidence of bias on the part of the remaining jurors.

{7} The trial court did, however, ask both parties whether they wanted the court to communicate with the jury, in the courtroom, regarding the excusal of Juror 18. Neither side wanted the trial court to mention the excusal. Defendant specifically stated that, although he did not wish to "waive any objection," talking to the jury "could make things worse." Thus Defendant made an express strategic decision to forego any further explanation to the jury.

{8} The parties subsequently called in the bailiff to supplement the record regarding which jurors were in the hallway when Juror 18 left her individual voir dire interview. His testimony was inconclusive and there is ultimately no certainty about which jurors were actually in the hallway and possibly overheard Juror 18's remark. Moreover, based on the in-chambers testimony of Juror 18 herself, the possibility remains that she made the "hang him high" comment while in the courtroom. Although Defendant's brief does not particularly focus on this comment, we consider the possibility that the courtroom comment forms the basis for Defendant's argument on appeal.

{9} In conducting its inquiry into possible bias, the trial court heard and assessed the testimony about both the courtroom and the hallway comments. In addition, the trial court heard testimony from Juror 18 that she harbored no bias toward Defendant. The trial court dismissed her nonetheless. The trial court then determined that, whatever might have been said, there was no evidence that comments by Juror 18 had prejudiced the remaining jurors. We conclude that the trial court did not abuse its discretion.

{10} As Defendant points out, a lone biased juror undermines the impartiality of an entire jury. State v. McFall, 67 N.M. 260, 263, 354 P.2d 547, 549 (1960). Defendant fails to persuade us, however, that the trial court erred in finding a lack of bias on his jury. Defendant's speculative argument primarily relies on cases in which extraneous information reached the jury, which creates a presumption of prejudice. State v. Sacoman, 107 N.M. 588, 591, 762 P.2d 250, 253 (1988) (stating that extraneous information improperly considered during deliberations creates a presumption of prejudice) (disapproved of on other grounds by State v. Mann, 2002-NMSC-001, ¶ 24, 131 N.M. 459, 39 P.3d 124); State v. Pettigrew, 116 N.M. 135, 140, 860 P.2d 777, 782 (Ct.App.1993) (recognizing that presumption of prejudice was triggered by juror's unauthorized contact with intern); State v. Perea, 95 N.M. 777, 778-79, 626 P.2d 851, 852-53 (Ct.App.1981) (finding irreparable jury contamination where juror brought into jury room prejudicial newspaper article about the defendant's guilt, bailiff discussed article with jury, and juror then wrote note asking court not to grant mistrial based on newspaper incident). In contrast to the cases cited by Defendant, however, here there are no allegations that the jury was subjected to "outside mischiefs." Cf. id. at 778, 626 P.2d at 852. See also Mann, 2002-NMSC-001, ¶¶ 20-25,

131 N.M. 459,

39 P.3d 124 (explaining distinctions between jury tampering, jury misconduct, and jury bias); Goodloe v. Bookout, 1999-NMCA-061, ¶ 22, 127 N.M. 327, 980 P.2d 652 (recognizing the distinction between inappropriate communications within jury and influences from outside the jury, which are more serious).

{11} We also decline to adopt the reasoning suggested by the State, which relies on inapplicable cases in which jurors or witnesses made potentially prejudicial comments in open court. See, e.g., State v. Barragan, 2001-NMCA-086, ¶ 35, 131 N.M. 281, 34 P.3d 1157

(finding no abuse of discretion where trial court refused to grant mistrial because of unexpected and unsolicited witness testimony); State v. Price, ...

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