State v. Lewis

• Decision Date: 19 April 2017
• Docket Number: No. 34,506,34,506
• Citation: 399 P.3d 954
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Kelson LEWIS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

399 P.3d 954

STATE of New Mexico, Plaintiff-Appellee,

v.Kelson LEWIS, Defendant-Appellant.

No. 34,506

Court of Appeals of New Mexico.

Filing Date: April 19, 2017

Certiorari Granted, June 23, 2017, No. S-1-SC-36428

Hector H. Balderas, Attorney General, Laura E. Horton, Assistant Attorney General, Santa Fe, NM for Appellee.

Bennett J. Baur, Chief Public Defender, Sergio Viscoli, Appellate Defender, B. Douglas Wood III, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

JONATHAN B. SUTIN, Judge

{1} Defendant Kelson Lewis appeals from the district court's denial of his motion to bar retrial on the charge of criminal sexual contact of a minor (CSCM) in the third degree. Among other charges, the indictment charged Defendant with second degree CSCM in Count 1. After the close of the State's evidence at trial, the district court granted the State's motion to amend the CSCM charge from second degree to third degree and granted Defendant's motion to include a jury instruction for the lesser included offense of battery. The district court declared a mistrial based on jury disagreement as to Count 1, directed a verdict of acquittal on Counts 2 and 3, and Defendant was found not guilty of Counts 4 and 5. Defendant asserts on appeal that the district court did not appropriately determine whether the jury was hung on the charge of CSCM or the lesser included battery charge. Thus, Defendant argues, double jeopardy principles prevent his retrial for CSCM, and the district court erred in denying his motion to bar retrial. Because we disagree that the record is ambiguous regarding the district court's inquiry into the jury deliberations and the charge upon which the jury was deadlocked, we affirm.

DISCUSSION

{2} Defendant asserts the district court did not properly poll the jury as to whether it was deadlocked on the charge of CSCM or the lesser included charge of battery, and therefore, Defendant received an "implied acquittal" of CSCM. Thus, Defendant argues that retrial for CSCM violates the Double Jeopardy Clauses of the State and Federal Constitutions. "We review double jeopardy claims de novo." State v. Fielder , 2005-NMCA-108, ¶ 10, 138 N.M. 244, 118 P.3d 752.

{3} The Double Jeopardy Clause "has been held to incorporate a broad and general collection of protections against several conceptually separate kinds of harm: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense." State v. Montoya , 2013-NMSC-020, ¶ 23, 306 P.3d 426 (internal quotation marks and citation omitted). "When a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous." State v. Baca , 2015-NMSC-021, ¶ 34, 352 P.3d 1151 (alteration, internal quotation marks, and citation omitted), cert. denied sub nom. Baca v. New Mexico , ––– U.S. ––––, 136 S.Ct. 255, 193 L.Ed.2d 134 (2015) (mem.). Where the jury is properly instructed on a lesser included offense, an acquittal or a hung jury on the greater offense does not preclude retrial on that uncharged, lesser included offense. See State v. Collier , 2013-NMSC-015, ¶¶ 21-22, 301 P.3d 370.

{4} Defendant relies primarily on Rule 5-611(D) NMRA ; State v. Castrillo , 1977-NMSC-059, 90 N.M. 608, 566 P.2d 1146, overruled on other grounds by State v. Wardlow , 1981-NMSC-029, 95 N.M. 585, 624 P.2d 527 ; and State v. Garcia , 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, to argue that he received an implied acquittal on CSCM and retrial on that charge would violate his right to be free from double jeopardy. Relying on the same authority and also on Fielder , 2005-NMCA-108, 118 P.3d 752, we conclude that Defendant's retrial for CSCM does not violate double jeopardy. We begin by discussing the relevant authority and then discuss in detail what happened at Defendant's trial and its legal effect on his double jeopardy rights.

{5} In Castrillo , the charge of first degree murder, as well as the lesser included offenses of second degree murder and voluntary manslaughter, were submitted to the jury at the defendant's first trial. 1977-NMSC-059, ¶ 1, 566 P.2d 1146. When the jury was unable to reach a verdict, the district court declared a mistrial without inquiring as to which of the offenses the jury had agreed and upon which the jury was deadlocked. Id . ¶ 14. The defendant was tried a second time and was found guilty of second degree murder. Id . ¶ 1. The defendant appealed, arguing his second trial violated double jeopardy. Id . Our Supreme Court held, though the jury was hung between acquittal and at least one of the offenses included within the murder charge, "[t]he record [was] silent upon which, if any, of the specific included offenses the jury had agreed and upon which the jury had reached an impasse." Id . ¶ 14. Because the record was unclear as to which of the included offenses was the basis for impasse and the district court did not conduct further inquiry to ascertain at which level of charge the jury was deadlocked, our Supreme Court reasoned that any doubt must be resolved "in favor of the liberty of the citizen." Id . (internal quotation marks and citation omitted). Thus, our Supreme Court determined that all but the least of the lesser included charges (i.e., voluntary manslaughter) must be dismissed and that retrial of the defendant on all but the least charge violated double jeopardy. Id. ¶¶ 14-15.

{6} In Garcia , this Court considered whether the district court erred when it inquired whether the jury was deadlocked on the greater offense but did not inquire whether the jury was deadlocked on the lesser included offenses. 2005-NMCA-042, ¶¶ 2, 10, 110 P.3d 531. The jury in Garcia was instructed on first degree murder, as well as second degree murder and voluntary manslaughter as lesser included offenses. Id . ¶ 2. The district court declared a mistrial after learning the jury could not reach an agreement on the first degree murder count. Id . ¶ 20. Upon inquiry by the district court regarding the charge of first degree murder, the foreperson informed the court that the jury was unable to reach a unanimous verdict on that charge. Id . The district court did not conduct any inquiry into the jury's deliberations on the lesser included charges of second degree murder and manslaughter. Id. This Court determined, based on Castrillo and its progeny, the district court was not required to inquire into the jury's deliberations regarding lesser included offenses when the district court had already determined the jury was unable to reach an agreement as to a greater offense.

Garcia , 2005-NMCA-042, ¶ 17, 110 P.3d 531. This Court noted that the holding was consistent with Rule 5-611(D), which requires:

If the jury has been instructed on one or more lesser included offenses, and the jury cannot unanimously agree upon any of the offenses submitted, the court shall poll the jury by inquiring as to each degree of the offense upon which the jury has been instructed beginning with the highest degree and, in descending order, inquiring as to each lesser degree until the court has determined at what level of the offense the jury has disagreed. If upon a poll of the jury it is determined that the jury has unanimously voted not guilty as to any degree of an offense, a verdict of not guilty shall be entered for that degree and for each greater degree of the offense.

See Garcia , 2005-NMCA-042, ¶¶ 25-27, 110 P.3d 531. On this basis, we concluded the district court did not err in the manner in which it polled the jury, and the defendant's retrial and conviction of first degree murder did not violate double jeopardy because there was a manifest necessity to declare a mistrial on that level of the charge. Id. ¶ 29.

{7} Shortly after our opinion in Garcia , this Court decided Fielder in which we considered whether the defendant's retrial for second degree criminal sexual penetration (CSP II) violated double jeopardy because there was no manifest necessity to declare a mistrial on that charge. Fielder , 2005-NMCA-108, ¶¶ 1, 10, 15, 118 P.3d 752. The jury in Fielder was instructed on CSP II and third degree criminal sexual penetration (CSP III), among other charges. Id . ¶¶ 5-6. After learning the jury was unable to reach a verdict on CSP, the district court polled the jury regarding the numerical split of the votes for guilty and not guilty but did not determine whether the jury was deadlocked on CSP II or the lesser included offense of CSP III. Id . ¶ 8. The defendant was retried on CSP II and the lesser included charge of CSP III and was convicted of CSP III. Id . ¶ 9. Again relying on Castrillo and its progeny, this Court determined, because the district court did not inquire into the jury's deliberations on the greater offense of CSP II to determine upon which level of CSP the jury disagreed, there was no manifest necessity to declare a mistrial as to that offense, and the defendant's double jeopardy rights were violated when he was retried for CSP II. Fielder , 2005-NMCA-108, ¶ 15, 118 P.3d 752.

{8} Turning to the trial in the present case, following various recesses and delays on the third day of deliberations, the jury sent a note to the district court asking, "If we cannot come to a unanimous decision for Count 1, do we move on to discuss/decide on the lesser charge for Count 1?" The district court responded with a note stating, "If you have a reasonable doubt as to guilt on Count 1 only then do you move to consideration of the included offense of battery. If you are not unanimous as to Count 1 then you do not move on to the included offense of battery." As Defendant and the State point out, it appears the transcript erroneously indicates two hours elapsed between the jury's first question and the district court's response. Approximately thirty minutes after the district court responded to the jury's first note, the...