State v. Rodriguez

• fullCitation: State v. Rodriguez, 2004 NMCA 125, 136 N.M. 494, 2004 NMCA 125, 100 P.3d 200 (N.M. App. 2004)
• Decision Date: 23 July 2004
• Citation: 100 P.3d 200,2004 NMCA 125
• Docket Number: Certiorari Granted, No. 28,867,Docket No. 23,455.
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. CONRADO RODRIGUEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

2004 NMCA 125

100 P.3d 200

STATE OF NEW MEXICO, Plaintiff-Appellee, v. CONRADO RODRIGUEZ, Defendant-Appellant.

Docket No. 23,455.

Court of Appeals of New Mexico.

Filing Date: July 23, 2004.

Certiorari Granted, No. 28,867, October 19, 2004.

Patricia A. Madrid, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.

John B. Bigelow, Chief Public Defender, Jennifer Byrns, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} Defendant challenges the district court's decision to change the jury's verdict from not guilty to guilty on a charge of driving while under the influence of intoxicating liquor (DWI). Defendant argues that changing the verdict violated his right to be free from double jeopardy. Defendant also argues that the district court's jury polling procedure violated his due process rights. Concluding that it was improper for the district court to change the jury's verdict under the circumstances of this case, we reverse Defendant's DWI conviction.

BACKGROUND

{2} The State charged Defendant with committing the crimes of DWI, driving while license suspended or revoked, and concealing identity. The case was tried to a jury. At the conclusion of jury deliberations, the jury returned to the courtroom to deliver the verdicts. Upon receiving the verdict forms from the jury foreman, the trial court asked the clerk to publish the verdicts. The clerk then read the verdicts, stating that the jury found Defendant guilty of driving while license suspended or revoked and concealing identity, but not guilty of DWI. The trial court then stated that it was "going to incorporate these verdicts into the records of our Fifth Judicial District" and asked counsel if there was a need to poll the jury. The attorneys for the State and Defendant both declined the opportunity to poll the jury. The trial court then stated, "All right. I'm going to discharge the jury. And thank you for working with us and for us today. Please call the Code-a-Phone over the weekend. Thank you." The bailiff then asked everyone to stand for the jury, and the transcript states, "Jury out at 3:15 p.m." Thereafter, the transcript contains the following exchange:

THE BAILIFF: One moment, Your Honor. I'm moving the jury back into the jury room. They're saying that a verdict was read wrong.

THE COURT: All right. That's fine.

THE BAILIFF: Let us see what's going on. Okay? I'll be right back with you in just a moment.

THE COURT: It was not read wrong.

THE BAILIFF: They were saying the DWI verdict was read wrong.

THE CLERK: I read what it says.

Believing that the jury was "still intact," the trial court decided to recall the jury. But before bringing the jury back into the courtroom, the trial court and attorneys agreed to poll the jury to determine if the not guilty verdict was correct. The transcript reflects that the jury returned to the courtroom at 3:20 p.m., five minutes after the transcript showed the jury as out of the courtroom.

{3} Upon its return, the trial court advised the jury that it "ha[d] been told by the bailiff, before you people exited, that the verdict had been read wrong as to" the DWI charge. After confirming that the jury foreman had indeed signed the not guilty verdict form for the charge of DWI, the trial court proceeded to poll the jury. The members of the jury individually confirmed that their verdict on the charge of DWI was guilty. The trial court therefore concluded that the jury foreman's act of signing the not guilty verdict form was a clerical error and ordered the record corrected to reflect a verdict of guilty on the DWI charge.

DISCUSSION

{4} Defendant argues that the trial court's decision to change the verdict on the DWI charge from acquittal to conviction violated his right to be free from double jeopardy. Because Defendant does not make a distinction between his double jeopardy protections under our state and federal constitutions, we limit our discussion to the federal constitution. See State v. Reyes, 2002-NMSC-024, ¶ 10 & n.2, 132 N.M. 576, 52 P.3d 948 (limiting the consideration of a double jeopardy claim to the federal constitution where the defendant failed to argue that the state constitution provides greater protection). Although the State questions whether Defendant adequately preserved his double jeopardy argument below, the State nevertheless recognizes that Defendant may raise a double jeopardy challenge on appeal regardless of preservation. See NMSA 1978, § 30-1-10 (1963) (providing that "double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment"). We therefore proceed to address the merits of Defendant's argument.

{5} We review a claim of double jeopardy de novo. See City of Albuquerque v. One (1) 1984 White Chevy Ut., 2002-NMSC-014, ¶ 5, 132 N.M. 187, 46 P.3d 94. However, to the extent that a double jeopardy claim involves factual determinations, we give the trial court wide latitude in its fact-finding function. See State v. Salazar, 1997-NMCA-088, ¶ 9, 124 N.M. 23, 946 P.2d 227.

{6} To decide whether the guilty verdict in this case subjected Defendant to double jeopardy, we must first determine whether the trial court erred in reassembling the jury to inquire into the validity of the not guilty verdict signed by the jury foreman and announced by the trial court. Compare Brown v. Gunter, 562 F.2d 122, 124-25 (1st Cir. 1977) (ruling that there is no double jeopardy violation when a state adopts and applies a procedural rule that allows the trial court to reassemble a discharged jury to correct its verdict under limited circumstances), with People v. Henry, 639 N.W.2d 285, 288-89 (Mich. Ct. App. 2001) (ruling that a double jeopardy violation occurs when the trial court improperly reassembles a discharged jury to change its verdict). The question, therefore, is whether the trial court acted properly in reassembling the jury in this case for the ostensible purpose of correcting the verdict.

{7} Whether a trial court may reassemble a discharged jury to amend, clarify, or correct a verdict is the subject of a surprising number of cases throughout the country. See generally David J. Marchitelli, Annotation, Criminal Law: Propriety of Reassembling Jury to Amend, Correct, Clarify, or Otherwise Change Verdict After Jury Has Been Discharged, or Has Reached or Sealed Its Verdict and Separated, 14 A.L.R.5th 89 (1993). Some courts take the view that a jury cannot be reassembled to revise its verdict once the trial court pronounces the jury formally discharged. See, e.g., West v. State, 92 N.E.2d 852, 855 (Ind. 1950). Other courts take a fact-intensive view that the moment of discharge depends on when the jury actually leaves the presence or control of the court and disperses rather than when the trial court formally pronounces the jury discharged. See, e.g, State v. Brandenburg, 120 A.2d 59, 61 (N.J. Hudson County Ct. 1956).

{8} New Mexico case law has long recognized that a trial court should not reassemble a jury to change its verdict after the jury has been discharged. See Murry v. Belmore, 21 N.M. 313, 319, 154 P. 705, 707 (1916) ("After a verdict has been received and entered upon the minutes, and the jury has been dismissed, they have not the power to reassemble and alter their verdict."). Although Murry was a civil case, a criminal case warrants at least the same precautions against improperly inquiring into a jury verdict. See People v. Rushin, 194 N.W.2d 718, 720 (Mich. Ct. App. 1971) (recognizing that special precautions must be taken when recalling the jury after formal discharge in a criminal case because of double jeopardy concerns and the "differing nature of the criminal process"); see also State v. Perez, 95 N.M. 262, 265, 620 P.2d 1287, 1290 (1980) (recognizing that the trial court does not abuse its discretion by denying a defendant's request to poll a discharged jury).

{9} The State contends that Murry does not require reversal in this case because the Murry jury was not reassembled until the day after it was formally discharged, while the jury in this case was reassembled shortly after it was formally discharged. We acknowledge that the time from discharge to reassembly was much longer in Murry than in this case. However, we do not believe the record in this case supports the trial court's decision to reassemble the jury.

{10} The State cites to a number of cases from other jurisdictions upholding trial court decisions to reassemble a jury and allow it to change its verdict in some manner. Common to all of these cases is a functional approach to determining when a jury is discharged regardless of when the court formally pronounces the jury as discharged. Because this approach is factually driven by the extent to which the jury remained under the control of the court and the extent to which the jury actually dispersed upon being formally discharged, the State argues that we should defer to the district court's statements indicating that the jury remained "intact" and was recalled as it was leaving and before it "exited" the courtroom. Despite the trial court's belief that the jury remained intact and could be recalled to correct its verdict, we disagree that the record supports such conclusions. See State v. Taylor, 2000-NMCA-072, ¶ 18, 129 N.M. 376, 8 P.3d 863 (stating that although the appellate court views the trial court's decision in the light most favorable to the ruling, "the review requires scrutiny of the evidence and supervision of the fact-finding process to determine" whether there is evidence in the record to satisfy "the relevant burden of proof"); cf. State v. Edwards, 552 P.2d 1095, 1097-98 (Wash. Ct. App. 1976) (indicating the ways in which an evidentiary record may be made by separate evidentiary hearing or otherwise).

{11} The record indicates that the jury dispersed at 3:15 p.m., upon being formally discharged....