State v. Lewis, S-1-SC-36428

• Decision Date: 01 November 2018
• Docket Number: NO. S-1-SC-36428,S-1-SC-36428
• Citation: 433 P.3d 276
• Parties: STATE of New Mexico, Plaintiff-Respondent, v. Kelson LEWIS, Defendant-Petitioner.
• Court: New Mexico Supreme Court

433 P.3d 276

STATE of New Mexico, Plaintiff-Respondent,

v.Kelson LEWIS, Defendant-Petitioner.

NO. S-1-SC-36428

Supreme Court of New Mexico.

Filing Date: November 1, 2018

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

Hector H. Balderas, Attorney General, Marko David Hananel, Assistant Attorney General, Santa Fe, NM, for Respondent

VIGIL, Justice.

{1} In this appeal we address two issues which arise when a jury is asked to render a verdict on a count that includes both greater and lesser offenses and it deadlocks in its deliberations on the greater offense. First, we clarify what is required of the district court under Rule 5-611(D) NMRA in polling the jury to determine on which offense the jury has deadlocked. We hold that a district court satisfies the requirements under Rule 5-611(D) when it has established a clear record as to which offense the jury is deadlocked. Strict compliance with the provisions of Rule 5-611(D) is not necessary to fulfill its purpose. Second, we recognize an ambiguity in our existing jury instructions regarding the order in which a jury must deliberate on counts which include both greater and lesser included offenses. To resolve this ambiguity and provide guidance to courts and litigants forthwith we adopt an approach to jury instructions that enables the jury to consider both the greater and lesser offenses under a count in any order it deems appropriate provided it return a verdict of not guilty on the greater offense before the court may accept a verdict on the lesser included offense.

I. BACKGROUND

{2} The State prosecuted Defendant, Kelson Lewis, under a five-count indictment. The only count at issue in this appeal is Count 1, under which Defendant was charged with criminal sexual contact of a minor (CSCM) contrary to NMSA 1978, Section 30-9-13 (2003). At the close of the State’s case at trial, the district court granted the State’s motion to amend the CSCM charge from second to third degree and granted Defendant’s motion to include battery as a lesser included offense under Count 1.

{3} The jury was therefore instructed that there were three possible verdicts for Count 1: guilty of CSCM, guilty of battery, or not guilty on the entire count. The jury was not provided with a verdict form for a not guilty verdict on CSCM specifically. The district court also instructed the jury, "If you should have a reasonable doubt as to whether Defendant committed the crime of [CSCM], you must proceed to determine whether he committed the included offense of battery." See UJI 14-6002 NMRA.

{4} 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[?]" After consulting with defense counsel and the State and receiving their consensus, the district court responded by sending a note to the jury stating, "If you have a reasonable doubt as to the guilt on Count 1, only then do you move to consideration of the included offense of battery."

{5} Thirty minutes later, the jury sent a second note asking, "On the count of criminal sexual contact we are unable to reach unanimous decision of guilty or not guilty. Should we move on to a lesser charge of battery?" Again with the agreement of both defense counsel and the State, the district court responded with a note stating, "No. Have you reached a unanimous verdict on the other counts?"

{6} Roughly thirty-five minutes later, the jury sent a note stating that it had completed its deliberations on the other counts. The district court then confirmed with the jury that it had completed its deliberations as to Count 1.

{7} After calling the jury into court, the district court had the following exchange with the jury foreperson:

THE COURT: I'm also understanding none of the forms are signed as to Count 1. And based on the note you all sent, it's my understanding that there’s no possibility for juror agreement on Count 1; is that correct?

THE JUROR: That is correct, Your Honor.

THE COURT: And I'm seeing heads shaking in the jury box that there’s not—you're unable to reach unanimous verdict. Is that correct[?]

THE JUROR: That’s correct.

The district court stated it would declare a mistrial as to Count 1. The district court issued an order finding manifest necessity to declare a mistrial as to CSCM on the basis that the jury was unable to reach unanimous agreement as to that offense. Defendant filed a motion to bar retrial on the greater offense of CSCM on double jeopardy grounds. Defendant asserted that the jury was not polled regarding Count 1 and therefore there was not a clear record as to whether the jury was deadlocked on CSCM or battery. The district court denied Defendant’s motion, finding that its procedure was proper under Rule 5-611(D) because it polled the jury through the notes exchanged during deliberations and "reaffirmed in open court" that "the jury could not reach a unanimous decision as to Count 1."

{8} Defendant appealed the district court’s order to the Court of Appeals, claiming that the district court failed to properly poll the jury on Count 1 and therefore retrial on the greater charge of CSCM would subject him to double jeopardy in violation of the Fifth Amendment to the United States Constitution and Article II, Section 15 of the New Mexico Constitution. State v. Lewis , 2017-NMCA-056, ¶ 2, 399 P.3d 954. The Court of Appeals rendered an opinion affirming the district court’s order. Id. ¶ 17. Defendant filed a petition for writ of certiorari with this Court asking us to review the Court of Appeals' opinion, which we granted pursuant to Rule 12-502 NMRA. In addition to the issue raised by the Defendant regarding whether the district court adequately polled the jury as to Count 1, we asked the parties to address the issue of whether the district court erred by instructing the jury that it could not consider the lesser included offense of battery if it was deadlocked on the greater offense of CSCM. See State v. Jade G. , 2007-NMSC-010, ¶ 24, 141 N.M. 284, 154 P.3d 659 (acknowledging "that as a general rule, propositions of law not raised in the trial court cannot be considered sua sponte by the appellate court" but that we have done so for "questions of a general public nature affecting the interest of the state at large" (internal quotation marks and citations omitted) ).

II. DISCUSSION

{9} We proceed to address two issues which lie at the core of the jury’s inability to agree on a verdict of guilty or not guilty on the greater charge of CSCM. First, we address whether retrial of Defendant on the greater charge of CSCM would violate constitutional protections against double jeopardy—being tried twice for the same crime—where the district court did not strictly comply with the formal requirements of Rule 5-611(D) but clearly established on the record that the jury was deadlocked on CSCM. We then turn to the second issue regarding how a district court must instruct a jury on the manner and order in which it is to deliberate on a count with lesser included offenses. In addressing this second issue, we acknowledge an ambiguity in our existing jury instructions and address the problem by providing guidance to courts and litigants alike.

A. The District Court Did Not Abuse Its Discretion By Declaring a Mistrial on All Offenses Under Count 1 Where it Had Established a Clear Record That the Jury Was Deadlocked on the Greater Charge of CSCM

{10} "A double jeopardy challenge is a constitutional question of law which we review de novo." State v. Swick , 2012-NMSC-018, ¶ 10, 279 P.3d 747. Central to that question in this case is whether the district court erred by determining that the jury was deadlocked on the charge of CSCM based on the notes sent during deliberations and its exchange with the jury foreperson after deliberations. We review a district court’s determination that the jury was deadlocked on a particular charge under a count with greater and lesser included offenses for an abuse of discretion. See State v. Phillips , 2017-NMSC-019, ¶¶ 1, 14, 396 P.3d 153 ; State v. Wardlow , 1981-NMSC-029, ¶¶ 12-13, 95 N.M. 585, 624 P.2d 527. "A trial court abuses its discretion when its decision is contrary to logic and reason." Roselli v. Rio Cmtys. Serv. Station, Inc. , 1990-NMSC-018, ¶ 11, 109 N.M. 509, 787 P.2d 428.

{11} The constitutional protection against double jeopardy prevents retrial of a crime after a jury has rendered a verdict of either guilty or not guilty as to that offense; on the other hand, a defendant may be retried if the jury is deadlocked or hung on that offense. State v. Collier , 2013-NMSC-015, ¶¶ 11, 14, 301 P.3d 370 ; Phillips , 2017-NMSC-019, ¶ 1, 396 P.3d 153. Because the protection against double jeopardy prevents a retrial of a crime where the jury has rendered a verdict, when a jury indicates that it is deadlocked on a count with lesser included offenses the district court must poll the jury in order to clearly establish on the record the precise offense on which the jury was deadlocked. Phillips , 2017-NMSC-019, ¶ 1, 396 P.3d 153.

Importantly, the judge must confirm that the jury did not unanimously agree that the defendant was not guilty of one or more of the included offenses because the constitutional protection against double jeopardy precludes the State from prosecuting the defendant for such offense(s) since the jury’s unanimous agreement on a verdict of not guilty constitutes an acquittal.

Id. In such a count with greater and lesser included offenses, it can be difficult to determine on which offense the jury is deadlocked and which offenses, if any, it has unanimously agreed to acquit. The manner for making this determination is set forth in Rule 5-611(D) as follows:

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,

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