State v. Paul

• Decision Date: 28 May 2020
• Docket Number: No. A-1-CA-36748,A-1-CA-36748
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. DARRYL PAUL, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
DARRYL PAUL, Defendant-Appellant.

No. A-1-CA-36748

COURT OF APPEALS OF THE STATE OF NEW MEXICO

May 28, 2020

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

APPEAL FROM THE DISTRICT COURT OF MCKINLEY COUNTY
Robert A. Aragon, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender
Aja Oishi, Assistant Appellate Defender
Santa Fe, NM
Luz C. Valverde, Assistant Appellate Defender
Albuquerque, NM

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for Appellant

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OPINION

IVES, Judge.

{1} Defendant Darryl Paul appeals the district court's denial of his motion to dismiss on double jeopardy grounds the charged offense of homicide by vehicle following a jury trial that produced no verdict. Defendant contends that, under State v. Castrillo, 1977-NMSC-059, 90 N.M. 608, 566 P.2d 1146, he may not be retried for homicide by vehicle because the district court declared a mistrial based on manifest necessity due to jury deadlock without creating a "clear record[,]" State v. Phillips, 2017-NMSC-019, ¶ 16, 396 P.3d 153, as to whether the jury was deadlocked on the greater offense of homicide by vehicle, NMSA 1978, § 66-8-101 (2004), or on the lesser included offense of driving under the influence of intoxicating liquor, NMSA 1978, § 66-8-102 (2010). Although we agree that there was no manifest necessity for a mistrial on homicide by vehicle, we conclude that Castrillo does not apply in this case because Defendant consented to the district court's mistrial declaration, and we therefore affirm.

BACKGROUND

{2} Defendant was charged by criminal information with a single count of homicide by vehicle committed in violation of Section 66-8-101(A), (C) and resulting in the death of Sandy Tom. Defendant's trial ended in a mistrial when the district court concluded that the jury could not reach a unanimous verdict. At that

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trial, the district court instructed the jury on both homicide by vehicle and the lesser included offense of driving under the influence of intoxicating liquor (DUI), § 66-8-102, and instructed the jury that it could reach three possible verdicts, numbered in the written instructions as follows: (1) guilty of homicide by vehicle; (2) guilty of DUI; and (3) not guilty. The verdict form followed the same pattern.

{3} At 11:22 a.m. on the only day of deliberations, the jury sent the district court a note stating that "on the first verdict" it was "at 11 [to] 1, with no chance of changing the 1." After conferring with counsel, the district court responded by calling the jury into the courtroom and instructing the jurors to again retire in order to determine whether further deliberations would enable them to achieve unanimity. Twenty minutes later, the jury sent another note stating that it would continue deliberating. At 2:11 p.m., the jury sent a final note, informing the district court that it "[could not] come to a unanimous decision" and that "[f]urther deliberations [would] not alter the outcome."

{4} The district court, believing that "this [was] it," called counsel for both parties to the bench and asked them for input. After the prosecutor agreed that "this [was] it," defense counsel stated "I think we're at a hung jury state, Your Honor; I think we're at a mistrial." The district court then called the jury back into the courtroom, informed the foreperson that the jury's "latest note" told the court that "any further deliberation would be fruitless," and asked the foreperson whether she

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was "convinced of that." When the foreperson responded "Yes," the judge praised the jury for its work and informed the jurors that he would "meet with [them] for a moment before they [were] finally discharged." The judge returned twenty minutes later, apparently after discharging the jury outside of the parties' presence. At that point, defense counsel asked whether he needed "to do a motion for a mistrial" "on the record"; the district court responded that "the anticipated motion for a mistrial [was] granted."

{5} One and a half months after trial, Defendant filed a motion to dismiss the charge of homicide by vehicle on double jeopardy grounds, contending that the district court had erred in failing to poll the jury to determine whether it had deadlocked on that offense. After receiving the State's response and holding a hearing, the district court denied the motion, concluding that "it [was] clear and [un]ambiguous [that the jury] was deadlocked" on homicide by vehicle. Defendant appealed.

DISCUSSION

I. Standard of Review

{6} "A double jeopardy challenge is a constitutional question of law [reviewed] de novo." State v. Lewis, 2019-NMSC-001, ¶ 10, 433 P.3d 276 (internal quotation marks and citation omitted). However, we apply an abuse of discretion standard in reviewing "a district court's determination that [a] jury was deadlocked on a

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particular charge under a count with greater and lesser included offenses." Id. See generally United States v. Perez, 22 U.S. 579 (1824) (establishing that trial courts have broad discretion in determining whether a manifest necessity exists due to jury deadlock). "[W]hen deciding whether a district court erred in finding manifest necessity to declare a mistrial on counts containing lesser included offenses, [our appellate courts] consider whether a clear record was established by the district court when determining on which offense the jury was deadlocked." Lewis, 2019-NMSC-001, ¶ 15.

II. There Was No Manifest Necessity to Declare a Mistrial on the Charge of Homicide by Vehicle

{7} On appeal, Defendant contends, as he did below, that the State may not retry him for homicide by vehicle because the district court discharged the jury without determining whether it had acquitted him of that offense. Defendant's argument implicates his "valued right . . . to have his trial completed by the particular tribunal summoned to sit in judgment on him," Downum v. United States, 372 U.S. 734, 736 (1963), an aspect of his right under the Double Jeopardy Clause to avoid being "twice placed in jeopardy" of punishment for the same offense, State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, ¶ 14, 120 N.M. 619, 904 P.2d 1044. When a trial court terminates a defendant's trial before the defendant obtains a verdict on a charged offense, the Clause protects that right by prohibiting the State from retrying the defendant for that offense unless the defendant consents to the

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termination or there is a manifest necessity for the termination. Castrillo, 1977-NMSC-059, ¶ 13. A jury's inability to reach a unanimous verdict—a jury deadlock—"is considered the classic basis establishing [a manifest] necessity." Blueford v. Arkansas, 566 U.S. 599, 609 (2012) (internal quotation marks and citation omitted).

{8} In Castrillo, 1977-NMSC-059, ¶ 5, our Supreme Court held that defendants are entitled to provide the jury with the option of acquitting on each level of offense included in a count with greater and lesser included offenses. The jury in that case had deadlocked on at least one of the three included offenses submitted to it, but the record was "silent" regarding the level of deadlock. Id. ¶ 14. Because the trial court had declared a mistrial without determining whether the jury had acquitted the defendant of either greater offense—an inquiry that Castrillo's holding required—the Court concluded that there had been no manifest necessity for terminating the defendant's trial and that double jeopardy consequently barred retrial on both greater offenses. Id. Our Supreme Court later implemented its holding in Castrillo by adopting Rule 5-611(D) NMRA, which provides:

If so instructed, the jury may find the defendant guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein. 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

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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 Lewis, 2019-NMSC-001, ¶ 13 ("We acknowledge, as the Court of Appeals has, that [the Rule's] polling requirement was drafted based significantly...