N.M. R. Crim. P. Dist. Ct. 5-611
N.M. R. Crim. P. Dist. Ct. 5-611
Committee commentary. - Paragraphs A, B, D and E of this rule were derived from Rule 31 of the Federal Rules of Criminal Procedure and Rule 32 of the Colorado Rules of Criminal Procedure.
Paragraph D of this rule provides that, when instructed, the jury may find the defendant guilty of a necessarily included offense. For a lesser offense to be necessarily included, the greater offense cannot be committed without also committing the lesser. State v. Medina, 87 N.M. 394, 534 P.2d 486 (Ct. App. 1975). See also, State v. Everitt, 80 N.M. 41, 450 P.2d 927 (Ct. App. 1969).
Paragraph C of this rule allows the jury at any time during its deliberation to return a verdict on counts upon which it has agreed. In United States v. Conti, 361 F.2d 153 (2d Cir. 1966), the court held that a similar procedure does not result in prejudice to the defendant.
Paragraph D and H of this rule set out the procedure that should be followed in the declaration of a mistrial due to jury disagreement, in cases involving lesser included offenses.
In State v. Spillmon, 89 N.M. 406, 553 P.2d 686 (1976), it was held that retrial of the defendant on murder charges would constitute double jeopardy. The trial was to a jury, which returned verdicts of guilty as to attempted robbery and not guilty as to burglary, but which declared that they were dead-locked on the charges of first degree murder and second degree murder. The judge did not formally declare a mistrial, did not expressly state that he was reserving the power to retry the murder charge, did not inquire as to whether the jury had unanimously voted to acquit of either degree of murder, and merely set the murder charges for another trial. The supreme court held that the judge was wrong in concluding the proceedings without formally declaring a mistrial, in concluding the proceedings without expressly reserving the power to retry the charges on which the jury was hung, and in failing to ascertain whether the jury had acquitted of any degree of the murder charge.
In State v. Castrillo, 90 N.M. 608, 566 P.2d 1146 (1977), the trial on the charge of murder and manslaughter ended in a hung jury, and the declaration of a mistrial. The court held that the trial judge should have ascertained whether the jury had acquitted of any degree of unlawful homicide. The failure to do so resulted in the bar of the prosecution of all degrees other than the lowest (voluntary manslaughter). In the court of appeals decision, State v. Castrillo, N.M. Ct. App. No. 2499, decided December 12, 1976, the court ruled that an oral pronouncement by the judge, that he is declaring a mistrial, is not a proper declaration of a mistrial, and that a formal order is essential. The court also stated that the trial judge must reserve the power to retry any portion of the case.
The Spillmon case and the two Castrillo cases lay down several rules: (a) a formal written order is required in the declaration of a mistrial because of jury disagreement; (b) an express reservation of the power to retry the charges is essential; and (c) in case lesser included offenses are submitted, no mistrial for jury disagreement should be declared until the judge ascertains whether the jury has acquitted on any of the degrees of the offense. This rule and the court-approved form implement these rules.
The trial judge should not accept an announcement as to the jury vote on any included offense until the jury has carried its deliberations as far as possible. The inquiry concerning a unanimous vote on any degree of the offense does not come until the jury is about to be discharged as deadlocked. The inquiry of the jury is not as to what the jury can do, but what the jury has done. The jury is not sent back for further deliberations, but in a proper case may be sent back to sign a verdict which the judge finds that the jury has already reached. State v. Castrillo, 90 N.M. 608, 566 P.2d 1146 (1977). See UJI 14-250 and 14-6012 NMRA and their commentaries.
In polling the jury pursuant to Paragraph E of this rule, the judge begins by inquiring as to the highest degree of the offense charged. If the jury is unable to agree as to the highest degree of the offense submitted to the jury, the court may enter an order declaring a mistrial thereby automatically reserving the power to retry the offense and all lesser degrees of the offense. If the judge finds that the jury agreed that the defendant was not guilty as to the highest degree of the offense, the judge then inquires as to the next highest degree submitted and continues until he reaches the degree of the offense upon which the jury could not agree.
ANNOTATIONS Compiler's notes. - Paragraph D is deemed to have superseded 11-13-1, 1953 Comp. Lesser-included offense. - Where the victim of criminal sexual contact of a minor specifically stated that defendant tried to penetrate her, there was no ambiguity in the victim's testimony that could lead a rational juror to acquit defendant of the crime of criminal sexual penetration and defendant's request for a lesser-included offense instruction was properly denied. State v. Paiz, 2006-NMCA-144, 140 N.M. 815, 149 P.3d 579, cert. denied, 2006-NMCERT-011. Paragraph D was likely drafted, for the most part, based on the committee's reading of State v. Castrillo, 1977-NMSC-059, 90 N.M. 608, 566 P.2d 1146; State v. Garcia, 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, cert. denied, 2005-NMCERT-004. Court inquiry to deadlocked jury. - When the jury states that it is deadlocked on a count including first degree murder and the jury has been instructed on the lesser included offense of second degree murder, the court need inquire no further than first degree murder if that is the highest level of the offense at which the jury has disagreed. State v. Garcia, 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, cert. denied, 2005-NMCERT-004. Trial court's duty when jury is deadlocked. - When a jury is unable to reach unanimous agreement on an open count with lesser included offenses, the judge must poll the jury and clearly establish on the record on which offense in the count the jury was deadlocked. If the judge fails to clearly establish on the record the offenses on which the jury was deadlocked, all but the lowest offense must be dismissed and the dismissed offenses cannot be retried. State v. Phillips, 2017-NMSC-019. Court failed to establish the offenses on which the jury was deadlocked. - Where defendant was charged with first-degree premeditated murder and the lesser included offenses of second-degree murder and voluntary manslaughter, where the jury announced that it was hung, and during the jury poll, seven jurors stated that the jury had unanimously agreed defendant was not guilty of first-degree murder, but five jurors indicated the jury was unable to reach a verdict on that crime, and where there was no written record of whether the jury had acquitted defendant of that crime or deadlocked during deliberations, the district court failed to clearly establish on the record whether the jury deadlocked on first-degree murder and therefore abused its discretion in concluding that the jury was hung and that there was manifest necessity justifying a mistrial on all of the crimes in the count; constitutional double jeopardy protections bar retrial on the first- and second degree murder charges, but defendant may be retried on the lowest offense of voluntary manslaughter. State v. Phillips, 2017-NMSC-019. Purpose of Rule 5-611(D).- The purpose of the polling requirement of Rule 5 - 611(D) NMRA is for the district court to create a clear record as to which, if any, of the specific included offenses the jury had agreed and upon which the jury had reached an impasse. State v. Lewis, 2019-NMSC-001, aff'g 2017-NMCA-056. Court must clearly establish on the record the offense on which the jury is deadlocked.- Where defendant was charged with criminal sexual contact of a minor (CSCM) and battery, as a lesser included offense of CSCM, and where the jury was unable to reach a unanimous decision of guilty or not guilty on the count of CSCM, the district court did not abuse its discretion by declaring a mistrial on all offenses, and allowing retrial of the greater offense of CSCM, where it had established a clear record that the jury was deadlocked on the greater charge of CSCM. State v. Lewis, 2019- NMSC-001, aff'g 2017-NMCA-056. Intent of rule satisfied where communications between jury and court made clear that the jury was unable to agree on a finding of guilty or not guilty on charged offense. - Where defendant was charged with criminal sexual contact of a minor (CSCM) and the lesser included offense of battery, and where, at trial, the district court declared a mistrial based on jury disagreement, defendant's motion to bar retrial on the CSCM charge, based on the grounds that he received an implied acquittal and that retrial would violate his right to be free from double jeopardy, was properly denied, because the record indicated that the jury twice asked whether it should proceed to consider the battery charge if it was unable to reach a unanimous decision on the CSCM charge, and the district court twice explicitly instructed the jury not to consider the charge of battery unless the jury was unanimous that it had reasonable doubt about defendant's guilt of CSCM, and thus the record of communications makes clear that the jury's inability to agree on a finding of guilty or not guilty applied only to the CSCM charge. State v. Lewis, 2017-NMCA-056, cert. granted. Rule does not apply where there is only one degree of offense and a single charge to the jury. O'Kelly v. State, 1980-NMSC-023, 94 N.M. 74, 607 P.2d 612. Failure of jury to reach unanimous agreement is not "verdict returned". O'Kelly v. State, 1980-NMSC-023, 94 N.M. 74, 607 P.2d 612. Court's power to dismiss criminal charge. - Absent a statute the court has no power to dismiss a valid criminal charge on its own motion. State v. Raburn, 1966-NMSC-174, 76 N.M. 681, 417 P.2d 813 (decided under former law). Instruction that jury should disregard first of two counts if guilty verdict returned on second count. - Where two counts are charged in an indictment, one for illegal possession of marijuana and the other for possession with intent to sell, an instruction by the court that the jury should disregard the former count if it finds defendant guilty under the latter operates as an acquittal of the former count and prevents retrial of this issue when the verdict on the latter is overturned. State v. Moreno, 1961-NMSC-070, 69 N.M. 113, 364 P.2d 594 (decided under former law). Silence of jury verdict as to one of two offenses. - Where the two counts of an information charge separate offenses, the silence of the jury verdict as to the first count is equivalent to an acquittal as to the offense charged therein. State v. Moreno, 1961-NMSC-070, 69 N.M. 113, 364 P.2d 594 (decided under former law). Defendant has right to have instructions on lesser included offenses submitted to the jury; however, this right depends on there being some evidence tending to establish the lesser included offenses. State v. Duran, 1969-NMCA-048, 80 N.M. 406, 456 P.2d 880 (decided under former law). Common law entitlement to lesser-included offense is carried forward under Paragraph D of this rule. State v. Munoz, 2004-NMCA-103, 136 N.M. 235, 96 P.3d 796. Interchangeable terms in Paragraph D. - For purposes of Paragraph D of this rule, the terms "lesser-included" and "necessarily-included" are used interchangeably. State v. Munoz, 2004-NMCA-103, 136 N.M. 235, 96 P.3d 796. For lesser offense to be included within the greater, it must be necessarily included. State v. Patterson, 1977-NMCA-084, 90 N.M. 735, 568 P.2d 261; State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486. In order for a lesser offense to be included within a greater offense, the lesser offense must be necessarily included in the greater offense charged in the indictment. For the offense to be necessarily included, the greater offense cannot be committed without also committing the lesser offense. State v. DeMary, 1982-NMSC-144, 99 N.M. 177, 655 P.2d 1021. For lesser offense to be "necessarily included", the greater offense cannot be committed without also committing the lesser. State v. Medina, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486; State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486. To be necessarily included, the greater offense cannot be committed without also committing the lesser. State v. Patterson, 1977-NMCA-084, 90 N.M. 735, 568 P.2d 261. State's request for a lesser included offense instruction was properly granted since the elements of the lesser crime were a subset of the elements of the charged crime, the defendant could not have committed the greater offense in the manner charged in the indictment without also committing the lesser offense, and therefore notice of the greater offense also incorporated notice of the lesser offense, evidence at the trial was sufficient to sustain a conviction on the lesser offense, and the elements that distinguished the lesser and greater offenses were sufficiently in dispute so that the jury rationally could acquit on the greater offense and convict on the lesser. State v. Meadors, 1995-NMSC-073, 121 N.M. 38, 908 P.2d 731. Manslaughter included in charge of murder under certain circumstances. - Under appropriate circumstances, where there is evidence that the defendant acted as a result of sufficient provocation, a charge of manslaughter could properly be said to be included in a charge of murder, and, accordingly, it would not be error to submit UJI Crim. 2.20 (see now UJI 14-220 NMRA) to the jury; however, it cannot seriously be maintained that manslaughter is invariably "necessarily included" in murder, since different kinds of proof are required to establish the distinct offenses. Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39. Larceny necessarily included within offense of robbery. - Because robbery is an aggravated larceny, larceny is necessarily included within the offense of robbery and defendant had the right to have instructions on the lesser included offenses of larceny submitted to the jury, since there was evidence from several defense witnesses which tended to establish larceny. State v. Wingate, 1975-NMCA-035, 87 N.M. 397, 534 P.2d 776. Battery upon a peace officer is a charge included within the charge of aggravated battery upon a peace officer. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486. Possession of marijuana is a lesser offense included within the greater offense of distribution. State v. Medina, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486. Aggravated assault by use of a threat with a deadly weapon is a lesser included offense of aggravated battery. State v. DeMary, 1982-NMSC-144, 99 N.M. 177, 655 P.2d 1021 (1982). "Same transaction" test is rejected and disapproved of in New Mexico. This test is concerned with whether offenses were committed at the same time, were part of a continuous criminal act and inspired by the same criminal intent. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813. Error in instructions as to degree of crime not necessarily prejudicial. - Even if there be error in an instruction as to the degree of the crime committed, it is not prejudicial to a defendant where he is convicted of a degree of crime which is properly submitted to the jury under the charge made and the evidence adduced upon the trial. State v. Horton, 1953-NMSC-044, 57 N.M. 257, 258 P.2d 371 (decided under former law). Demand for jury poll before return of verdict is premature and impermissible. O'Kelly v. State, 1980-NMSC-023, 94 N.M. 74, 607 P.2d 612. Refusal to poll jury after discharge not abuse of discretion. - Where defense counsel waited until after the jury had been discharged to make his request for a jury poll, the refusal of the court to recall the jury and poll the jury was not an abuse of discretion. State v. Perez, 1980-NMSC-143, 95 N.M. 262, 620 P.2d 1287. There is some justification for inquiries into the numerical division of the jury as to probability of agreement among the jury when done pursuant to the court's duty to assure that a verdict is reached, and in determining whether further deliberations are needed or if the jury should be discharged. Such an inquiry may also be necessary to protect the defendant from double jeopardy consequences when more than one count is presented to the jury. State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183, cert. denied, 454 U.S. 845, 102 S. Ct. 161, 70 L. Ed. 2d 132 (1981). Inquiries reversible error only when jury coerced. - While inquiry into the numerical division of the jury is not to be encouraged, it is not error per se. Such inquiries are reversible error only when shown to have a coercive effect on the jury. State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183, cert. denied, 454 U.S. 845, 102 S. Ct. 161, 70 L. Ed. 2d 132 (1981). Duty of court regarding equivocating juror. - Where the trial court, in polling the jury, receives a response from a juror indicating equivocation, it must then question further to give the juror full opportunity to indicate his present state of mind, and that polling or questioning must be carried out so as to avoid influencing or coercing a juror's verdict. State v. Holloway, 1987-NMCA-090, 106 N.M. 161, 740 P.2d 711. Where the record shows that a juror has voiced an uncertainty about the guilt of an accused, or has evidenced lack of full consent to the verdict, the verdict cannot stand. State v. Holloway, 1987-NMCA-090, 106 N.M. 161, 740 P.2d 711. Paragraph F applies only to irregularities of which parties have been made aware; defendant may seek new trial based on possibility that extraneous prejudicial evidence reached the jury where defense counsel was not aware of issues raised until after jury was discharged. State v. Doe, 1984-NMCA-045, 101 N.M. 363, 683 P.2d 45. Mistrial declared where jury cannot agree on offense. - Where a jury has determined that a lesser included offense is inappropriate but cannot agree between conviction and acquittal on the greater offense, the trial court must declare a mistrial and discharge the jury. Under these circumstances, jeopardy does not attach and a new trial may be had. State v. Wardlow, 1981-NMSC-029, 95 N.M. 585, 624 P.2d 527. Violation of pretrial order in limine did not warrant mistrial. - Where, in defendant's trial for first-degree murder, the State's bloodstain pattern expert impermissibly referred to seeing "brain matter" on defendant's shoes in violation of a pretrial order in limine and the trial court found that the witness's remark was not in deliberate violation of the pretrial order and was inadvertent and curable by a limiting instruction, defendant was not entitled to a mistrial. State v. Samora, 2013-NMSC-038. Alternative theories of same offense presented. - Trial court correctly instructed the jury that unanimity was not required as to one theory of first degree murder where alternative theories were presented; the jury's general verdict would not be disturbed where there was substantial evidence supporting one of the theories of the crime presented to the jury. State v. Salazar, 1997-NMSC-044, 123 N.M. 778, 945 P.2d 996. No requirement that magistrate court expressly reserve jurisdiction. - There is no requirement in the Rules of Criminal Procedure for the Magistrate Courts or in the supreme court approved forms for the magistrate courts which requires a magistrate court to expressly reserve jurisdiction, as required by Subdivision (h) (see now Paragraph H) of this rule. Cowan v. Davis, 1981-NMSC-054, 96 N.M. 69, 628 P.2d 314. Contemporaneous written order declaring mistrial not required. - A written order need not be entered contemporaneously with the oral declaration of mistrial in order to comply with this rule. State v. Reyes-Arreola, 1999-NMCA-086, 127 N.M. 528, 984 P.2d 775, cert. denied, 127 N.M. 390, 981 P.2d 1208. Nunc pro tunc order declaring mistrial. - A successor judge had the power to enter a nunc pro tunc order declaring a mistrial four months after the trial court's declaration. State v. Reyes-Arreola, 1999-NMCA-086, 127 N.M. 528, 984 P.2d 775, cert. denied, 127 N.M. 390, 981 P.2d 1208. Defendant's objection immaterial where mistrial declared. - When a court declares a mistrial and discharges the jury, it is immaterial whether the defendant objects. O'Kelly v. State, 1980-NMSC-023, 94 N.M. 74, 607 P.2d 612. Multiple verdicts on same charge. - Defendant was not acquitted of a charge even though the jury foreman first announced unanimity for acquittal but then created uncertainty as to the vote by later comments and the trial court directed the jury to take the vote again, resulting in a vote for conviction and declaration of a mistrial. State v. Apodaca, 1997-NMCA-051, 123 N.M. 372, 940 P.2d 478. No double jeopardy by defendant being brought to trial second time. - A defendant is not placed in double jeopardy by being brought to trial for the same offense the second time, after the jury in the first trial has been unable to reach a verdict as to guilt or innocence and a mistrial has been properly declared. Cowan v. Davis, 1981-NMSC-054, 96 N.M. 69, 628 P.2d 314. Double jeopardy rights violated. - Although defendant's conviction of third degree criminal sexual penetration must be set aside because a first trial ended in an implied acquittal of second degree criminal sexual penetration and defendant's double jeopardy rights were violated when he was tried for second degree criminal sexual penetration at a second trial, the proper remedy is to order a retrial, at which the highest degree that defendant can be tried for is second degree criminal sexual penetration. State v. Fielder, 2005-NMCA-108, 138 N.M. 244, 118 P.3d 752, cert. granted, 2005-NMCERT-008. Law reviews. - For annual survey of New Mexico law relating to constitutional law, see 12 N.M.L. Rev. 191 (1982). For note, "Jury - Trial Judge's Inquiry into Numerical Division of Jury: State v. Rickerson," see 13 N.M.L. Rev. 205 (1983). For annual survey of New Mexico criminal law and procedure, 19 N.M.L. Rev. 655 (1990). Am. Jur. 2d, A.L.R. and C.J.S. references. - 75B Am. Jur. 2d Trial §§ 1761, 1762. Inconsistency of criminal verdict with verdict on another indictment or information tried at same time, 16 A.L.R.3d 866. Inconsistency of criminal verdict as between different counts of indictment or information, 18 A.L.R.3d 259. Inconsistency of criminal verdicts as between two or more defendants tried together, 22 A.L.R.3d 717. Juror's reading of newspaper account of trial in state criminal case during its progress as ground for mistrial, new trial or reversal, 46 A.L.R.4th 11. Requirement of jury unanimity as to mode of committing crime under statute setting forth the various modes by which offense may be committed, 75 A.L.R.4th 91. When should jury's deliberation proceed from charged offense to lesser-included offense, 26 A.L.R.5th 603. Modern status of rule that court may instruct dissenting jurors in federal criminal case to give due consideration to opinion of majority (Allen charge), 44 A.L.R. Fed. 468. 23A C.J.S. Criminal Law § 1395 et seq.