State v. Holly, 29,488.
| Citation | 201 P.3d 844,2009 NMSC 004 |
| Decision Date | 29 January 2009 |
| Docket Number | No. 29,488.,29,488. |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Jerome Lynn "Lenny" HOLLY, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Hugh W. Dangler, Chief Public Defender, Karl Erich Martell, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
Gary K. King, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, NM, for Appellee.
{1} Kenneth Douglas was fatally shot in the back of the head while sitting in the driver's seat of a parked car outside the Atrium Club in Alamogordo, New Mexico. His cousin, Jason Carrell, was sitting beside him in the front passenger seat and ran from the car after hearing the shot. Carrell was then shot three times as he ran away but survived to call 911. Defendant Jerome Lynn Holly was the only other person in the car and was sitting in the backseat at the time of the shooting. Carrell identified Defendant as the man who shot him.
{2} Defendant was convicted of first-degree murder of Douglas and attempted first-degree murder of Carrell, following a six-day jury trial in Alamogordo. Defendant raises four grounds on appeal, three of which we discuss only summarily. We address in more detail defense counsel's rejected request to voir dire the jury following potentially prejudicial publicity that arose mid-trial. In the course of our discussion, we incorporate into our jurisprudence Section 8-3.6(e) of the ABA Standards for Criminal Justice, Fair Trial and Free Press, which calls for a more aggressive analysis and voir dire procedure by our trial courts than our law has previously imposed. We ultimately conclude, however, that any error by the court in this instance was harmless, and for the reasons that follow, we affirm Defendant's convictions in all respects.
{3} Defendant was a former high school basketball star of local renown and his case received a fair amount of media coverage before and during the trial. At issue in this case is whether the trial court employed sufficient measures to anticipate and prevent potential prejudice as a result of that publicity.
{4} The jury was empaneled on Monday, November 29, 2004 and received extensive instructions from the trial judge, including the standard instruction to avoid news accounts of the trial and a warning not to consider any information learned outside of the courtroom. See UJI 14-101 NMRA. Before the jurors were dismissed for the evening, they were once again instructed to avoid and disregard any media coverage of the case.
{5} The next afternoon, the front page of the Alamogordo Daily News featured a banner headline above the fold reading "Holly Pleads Guilty to Charges." The article noted that Defendant had recently pleaded guilty to racketeering and tampering with evidence charges arising from the same series of events as the trial. The article also included information about the shooting and the victims, and contained statements from the prosecuting attorney implicating Defendant.
{6} Two days later, defense counsel alerted the trial court to the article and requested a voir dire to determine whether any of the jurors had been exposed to the article. The trial judge declined Defendant's request, reasoning that jurors are presumed to follow the court's instructions. Instead, the court promised to reissue its instruction to the jury to avoid and disregard the media, and the court repeated that admonition several times throughout the remainder of the trial.
{7} Defendant asks us to consider whether the trial court erred in refusing to canvass the jury to ascertain the facts about any exposure to the article or its headline. Although this Court has previously stated that voir dire is recommended but not required in these circumstances, more recent and compelling authority persuades us to revisit our earlier position.
{8} This Court first addressed the issue of mid-trial publicity in State v. Campos, where the defendant alleged that he was prejudiced by an article in the local newspaper that alluded to his criminal history. 61 N.M. 392, 395, 301 P.2d 329, 331 (1956). The defendant argued that jurors might have read the local newspaper during an overnight recess, although counsel presented no evidence to that effect. Id. at 395-97, 301 P.2d at 331-32. In responding to the defendant, we observed that the jury had previously been instructed to avoid publicity about the trial, and stated that "[i]n order to predicate error on the action of the trial court ..., we should have to assume a violation by the jurors, or some of them, of the trial court's admonition given on the eve of the recessing of the court for the night, and that prejudice resulted therefrom." Id. at 398, 301 P.2d at 333. Rather than speculate whether the jury might have violated the court's instructions, we relied instead on a presumption that jurors follow trial court admonitions to avoid outside material about the trial. We indicated that anyone challenging this presumption has the burden to present evidence of actual juror exposure. Id. at 397-98, 301 P.2d at 332-33.
{9} Over the years, our courts have reaffirmed this rebuttable presumption. In State v. Rose, the defendant argued that "the jury should have been kept together because they might have been exposed to ... or unduly influenced by prejudicial publicity." 79 N.M. 277, 280, 442 P.2d 589, 592 (1968). This Court answered that "we find no merit [in defendant's argument], because there is absolutely no showing of any prejudice, and without such showing we cannot speculate thereon." Id.; see also State v. Lopez, 80 N.M. 599, 605, 458 P.2d 851, 857 (Ct.App. 1969) ().
{10} Our most recent discussion on mid-trial publicity occurred twenty-six years ago in State v. Sandoval, a case arising from the infamous Santa Fe prison riots. 99 N.M. 173, 655 P.2d 1017 (1982). In Sandoval, this Court addressed a factually similar issue when the trial court declined to conduct an individual voir dire of the jurors following mid-trial newspaper reports about the case. Id. at 174, 655 P.2d at 1018. The defendant argued that the publicity created a substantial risk of prejudice, and therefore that risk alone was sufficient to merit an individual voir dire even without evidence that any of the jurors had actually seen the articles involved. Id. at 176, 655 P.2d at 1020. We disagreed, stating that "[t]here is no case law in New Mexico which requires an individual voir dire in the absence of any proof or even an allegation that a juror has read a media article which could be prejudicial." Id.
{11} In reaffirming the rebuttable presumption set forth in Campos, 61 N.M. at 398, 301 P.2d at 333, we expressed concern that an alternative procedure Sandoval, 99 N.M. at 176-77, 655 P.2d at 1020-21. Following Sandoval, we recommended that trial courts conduct voir dire of the jury under similar circumstances but ultimately left that decision to the discretion of the trial court. Id. at 177, 655 P.2d at 1021.
{12} Despite this precedent, Defendant argues that our current approach is unworkable because it places a burden on the accused to produce evidence of actual juror exposure while the accused, once the jury is empaneled, has no meaningful access to the jury or its members. In evaluating this argument, we are informed by two important considerations persuasively articulated by the Colorado Supreme Court. Harper v. People, 817 P.2d 77 (Colo.1991) (en banc).
{13} In Harper, the defendant raised the very issue we address in this appeal when the court refused to conduct a voir dire of the jury after a prejudicial article appeared in a local newspaper on the second day of trial. Id. at 79. At that time, Colorado employed a rebuttable presumption identical to that used in New Mexico, which presupposed that jurors would avoid mid-trial publicity pursuant to the trial court's instructions. Colorado placed the burden on the defendant to produce evidence of actual juror exposure to the prejudicial material. Id. at 80. The Colorado Supreme Court recognized the fundamental difficulties facing defendants in obtaining such evidence and ultimately discarded its rebuttable presumption in favor of the standard we consider below. Colorado analyzed two important considerations for this change.
{14} Foremost, the Harper court stated that "requiring independent evidence of the jury's exposure to outside information as a prerequisite to polling the jury fails to acknowledge the significant obstacles to obtaining such evidence," because jurors and the parties or their counsel are not to communicate during trial. Id. at 82. For example, in New Mexico, jurors are instructed to avoid communication with the attorneys, parties, witnesses, and spectators. See UJI 14-101 NMRA. Similar ethical considerations prevent counsel from communicating with jurors during trial. Accordingly, because our rules of ethics and procedure frustrate access to necessary information, the rebuttable presumption created by Campos becomes nearly impossible to overcome. 61 N.M. at 398, 301 P.2d at 333. In most cases, the defendant would have to wait for a juror to reveal voluntarily the fact of unauthorized exposure, an unlikely or at least unreliable circumstance on which to guarantee the accused's right to a fair trial before an unbiased jury. Harper, 817 P.2d at 83.
{15} Moreover, the presumption that jurors will follow the trial court's cautionary instructions overlooks...
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