State v. Sanchez

• Decision Date: 26 June 2000
• Docket Number: No. 25,456.,25,456.
• Citation: 129 N.M. 284,2000 NMSC 21,6 P.3d 486
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Sylvestre SANCHEZ, Defendant-Appellant.
• Court: New Mexico Supreme Court

6 P.3d 486

129 N.M. 284

2000 NMSC 21

STATE of New Mexico, Plaintiff-Appellee, v. Sylvestre SANCHEZ, Defendant-Appellant.

No. 25,456.

Supreme Court of New Mexico.

June 26, 2000.

Phyllis H. Subin, Chief Public Defender, Lisabeth L. Occhialino, Assistant Appellate Defender, Santa Fe, for Appellant.

Patricia A. Madrid, Attorney General, M. Anne Kelly, Assistant Attorney General, Santa Fe, for Appellee.

OPINION

MINZNER, Chief Justice.

{1} Defendant Sylvestre Sanchez appeals from a judgment and sentence entered following a jury trial at which he was convicted of first degree murder of James Gentry, contrary to NMSA 1978, § 30-2-1(A) (1994), attempted murder of Darrell Wise, contrary to NMSA 1978, § 30-28-1(A) (1963), and kidnapping of Gentry and Wise, contrary to NMSA 1978, § 30-4-1 (1995). We have jurisdiction under Rule 12-102(A)(1) NMRA 2000. On appeal, Defendant raises an issue of first impression under our Rules of Criminal Procedure. He contends the trial court erred in substituting an alternate juror after the jury retired to deliberate. His contention requires us to interpret Rule 5-605 NMRA 2000, which addresses the use of alternate jurors in district court criminal trials. We conclude the trial court erred in substituting an alternate juror in this case and the error is presumptively prejudicial, because Rule 5-605 does not authorize substitution of an alternate juror after jury deliberations have begun (post-submission substitution). We also conclude the State has not overcome the presumption of prejudice the error creates. Defendant also contends on appeal that the State introduced insufficient evidence to support his convictions and that the constitutional protection against double jeopardy precludes convictions for both murder and kidnapping in this case. Neither contention has merit. Finally, Defendant contends that he received ineffective assistance of counsel, that the trial court erred in allowing the State to exercise one of its peremptory challenges, and that the court erroneously instructed the jury on kidnapping. We need not address these claims. We reverse and remand for further proceedings.

I.

{2} Wise, whose street name is "Black," testified at Defendant's trial. Wise and Gentry encountered Defendant at the home of an acquaintance around midnight on February 22, 1996. Defendant asked Wise for a ride and, after consulting Gentry, Wise agreed. The three men departed in Gentry's truck with Wise in the driver's seat, Gentry in the front passenger seat, and Defendant in the rear section on the right side, behind Gentry. Approximately five minutes later, Wise heard a loud gun shot. Wise saw Gentry slumped over in the front passenger seat. Defendant was pointing a gun at Wise. Defendant said to Wise, "[Y]ou're . . . dead . . . too, Black" and then pulled the trigger. The gun jammed. After Defendant succeeded in unjamming the gun, a bullet ricocheted throughout the truck, hit Wise in the mouth, and broke two of his lower teeth. Defendant shot Wise four more times before Wise was able to escape from the truck. As Wise fled, he saw Defendant enter a vehicle operated by Bill Davis. Wise returned to the truck and drove until he "ran into the police;" Gentry was dead.

{3} Other evidence corroborated Wise's testimony. A police officer testified that Defendant confessed to shooting Gentry and Wise with a nine-millimeter gun. Gentry was killed by a gunshot wound. A bullet struck the inside panel of the door on the driver's side. One nine-millimeter casing and two .380 casings were found in the truck, and the same gun fired all three casings. A nine-millimeter gun firing .380 bullets is unreliable and "tend[s] to malfunction." Bernadette Hall Davis testified that Defendant told her he was having nightmares. When he opened his eyes the person he killed would be standing in front of him. Defendant also said that one night he went to purchase drugs with Black and another man. Defendant was sitting in the back seat of the truck when he shot the other man. Defendant then tried to shoot Black, but he got out of the truck. Defendant chased him.

{4} At the conclusion of Defendant's trial, the alternate jurors stayed in the courtroom when the jury retired to deliberate. The court advised the alternate jurors they could go home, but they were not officially released from jury duty and should not discuss the case over the weekend. The court also said that in the event a juror became unable to serve the court might call an alternate to serve. The record indicates the jury began deliberating prior to noon on Friday, recessed for lunch, continued deliberating until approximately 5:00 p.m., and then adjourned for the weekend. On the following Monday, the court was notified that a juror was quite ill. The court permitted the juror to go home and presented counsel with two options: the first alternate juror would replace the juror who was ill; or the trial would be postponed. In the event that the parties chose the first option, the court stated it would "bring in the first alternate, . . . reinstruct him and the jury together . . . [and tell them] they need to begin deliberations from the top all over again." Defendant stated he did not oppose the first option, and the State concurred. The first alternate juror, however, was "on the road" and a substitute driver was not available until the following day. Defendant asked the court to order the juror to appear. The court concluded that his attendance would be a significant inconvenience to him, his employer, and his customers. Over Defendant's repeated objections, the court substituted the second alternate.

{5} The court instructed the jury to "start your deliberations from the beginning," to "bring [the alternate juror] up to speed as to where you are," and to "start things over again as if you were beginning deliberations right now, this morning, today." The court stated that "[t]he instructions I've given you previously, of course, still apply." Next, the court addressed the second alternate and stated, "[Y]ou are a full-fledged member of the jury, as opposed to an alternate. And, as I say, deliberations will be starting all over again with you." The reconstituted jury had retired for deliberations by 11:30 a.m. By 3:30 p.m. the jury had found Defendant guilty of first degree murder, attempted murder, and kidnapping.

II.

{6} At common law,

adhering to the principle of absolute jury integrity, [the courts] made no provision for substitution of a juror who, after the jury was selected, became unable or disqualified to perform his or her duties. In the event that a member of the jury became incapacitated, the entire jury was discharged. The remaining eligible jurors were immediately recalled along with an additional juror, and they were again empaneled to hear the entire trial.

Standards for Crim. Just.: Discovery and Trial by Jury § 15-2.9 commentary at 174-75 (1993) [hereinafter Standards for Crim. Just.] (standards completed July 1995). Rule 5-605 modifies common law practice.

{7} Rule 5-605(B) provides:

In any criminal case, the district court may direct that not more than six jurors, in addition to the regular jury, be called and impanelled to sit as alternate jurors. Alternate jurors, in the order in which they are called, shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, have the same qualifications, be subject to a like examination and challenges for cause, take the same oath, and have the same functions, powers, facilities and privileges as the regular jurors.

Rule 5-605(C) states that "[e]xcept in felony cases in which the death penalty may be imposed an alternate juror who does not replace a regular juror shall be discharged before the jury retires to consider its verdict." The text of Rule 5-605(C) supports an inference that the trial court may not substitute an alternate juror after deliberations begin, because that juror would have been released from jury duty. Rule 5-605(B) supports the same inference by providing for substitution prior to submission. Based on the text of Rule 5-605, Defendant contends on appeal the trial court erred in substituting the second alternate juror. He does not question the trial court's decision to excuse the juror who was ill.

{8} The State contends that Defendant failed to preserve this issue for review. See Rule 12-216(A) NMRA 2000. Defendant consented to the first alternate and never relied on Rule 5-605 in objecting to the second alternate. Defendant contends he is entitled to raise this issue under Rule 12-216(B), which authorizes an appellate court to consider certain questions, notwithstanding a defendant's failure to invoke a ruling at trial. In this instance, we must determine the nature of the issue before the Court prior to determining whether Defendant sufficiently brought it to the trial court's attention. For this reason, we depart from our usual procedure and address whether the error was preserved after we have analyzed the nature of the error.

{9} Rule 5-605 is similar to rules in other jurisdictions. Such rules generally protect a defendant's right to an impartial jury by specifically protecting the deliberative process during which a jury reaches its verdict. Post-submission substitution threatens that process. When a juror becomes disabled during deliberations, however, the trial court has limited options. Granting a mistrial may seem an unnecessary waste of scarce resources. Granting a continuance may be impractical. In interpreting a federal rule of criminal procedure similar to Rule 5-605, see Fed.R.Crim.P. 24(c) (prior to 1999 amendment), federal courts have recognized competing values and attempted to reconcile them. Recent revisions to that rule, Fed.R.Crim.P. 24(c)(3) (effective December 1, 1999) (authorizing retention of...