FROM THE DISTRICT COURT OF BERNALILLO COUNTY Judith K.
Nakamura, District Judge.
H. Balderas, Attorney General Laura E. Horton, Assistant
Attorney General Santa Fe, NM for Appellee.
Bennett J. Baur, Chief Public Defender Sergio Viscoli,
Appellate Defender B. Douglas Wood III, Assistant Appellate
Defender Santa Fe, NM for Appellant.
JONATHAN B. SUTIN, Judge.
Defendant Kelson Lewis appeals from the district court's
denial of his motion to bar retrial on the charge of criminal
sexual contact of a minor (CSCM) in the third degree. Among
other charges, the indictment charged Defendant with second
degree CSCM in Count 1. After the close of the State's
evidence at trial, the district court granted the State's
motion to amend the CSCM charge from second degree to third
degree and granted Defendant's motion to include a jury
instruction for the lesser included offense of battery. The
district court declared a mistrial based on jury disagreement
as to Count 1, directed a verdict of acquittal on Counts 2
and 3, and Defendant was found not guilty of Counts 4 and 5.
Defendant asserts on appeal that the district court did not
appropriately determine whether the jury was hung on the
charge of CSCM or the lesser included battery charge. Thus,
Defendant argues, double jeopardy principles prevent his
retrial for CSCM, and the district court erred in denying his
motion to bar retrial. Because we disagree that the record is
ambiguous regarding the district court's inquiry into the
jury deliberations and the charge upon which the jury was
deadlocked, we affirm.
Defendant asserts the district court did not properly poll
the jury as to whether it was deadlocked on the charge of
CSCM or the lesser included charge of battery, and therefore,
Defendant received an "implied acquittal" of CSCM.
Thus, Defendant argues that retrial for CSCM violates the
Double Jeopardy Clauses of the State and Federal
Constitutions. "We review double jeopardy claims de
novo." State v. Fielder, 2005-NMCA-108, ¶
10, 138 N.M. 244, 118 P.3d 752.
The Double Jeopardy Clause "has been held to incorporate
a broad and general collection of protections against several
conceptually separate kinds of harm: (1) a second prosecution
for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3)
multiple punishments for the same offense." State v.
Montoya, 2013-NMSC-020, ¶ 23, 306 P.3d 426
(internal quotation marks and citation omitted). "When a
defendant has been acquitted at trial he may not be retried
on the same offense, even if the legal rulings underlying the
acquittal were erroneous." State v. Baca,
2015-NMSC-021, ¶ 34, 352 P.3d 1151 (alteration, internal
quotation marks, and citation omitted), cert. denied sub
nom. Baca v. New Mexico, ___ U.S. ___, 136 S.Ct. 255
(2015) (mem.). Where the jury is properly instructed on a
lesser included offense, an acquittal or a hung jury on the
greater offense does not preclude retrial on that uncharged,
lesser included offense. See State v. Collier,
2013-NMSC-015, ¶¶ 21-22, 301 P.3d 370.
Defendant relies primarily on Rule 5-611(D) NMRA; State
v. Castrillo, 1977-NMSC-059, 90 N.M. 608, 566 P.2d 1146,
overruled on other grounds by State v. Wardlow,
1981-NMSC-029, 95 N.M. 585, 624 P.2d 527; and State v.
Garcia, 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, to
argue that he received an implied acquittal on CSCM and
retrial on that charge would violate his right to be free
from double jeopardy. Relying on the same authority and also
on Fielder, 2005-NMCA-108, we conclude that
Defendant's retrial for CSCM does not violate double
jeopardy. We begin by discussing the relevant authority and
then discuss in detail what happened at Defendant's trial
and its legal effect on his double jeopardy rights.
In Castrillo, the charge of first degree murder, as
well as the lesser included offenses of second degree murder
and voluntary manslaughter, were submitted to the jury at the
defendant's first trial. 1977-NMSC-059, ¶ 1. When
the jury was unable to reach a verdict, the district court
declared a mistrial without inquiring as to which of the
offenses the jury had agreed and upon which the jury was
deadlocked. Id. ¶ 14. The defendant was tried a
second time and was found guilty of second degree murder.
Id. ¶ 1. The defendant appealed, arguing his
second trial violated double jeopardy. Id. Our
Supreme Court held, though the jury was hung between
acquittal and at least one of the offenses included within
the murder charge, "[t]he record [was] silent upon
which, if any, of the specific included offenses the jury had
agreed and upon which the jury had reached an impasse."
Id. ¶ 14. Because the record was unclear as to
which of the included offenses was the basis for impasse and
the district court did not conduct further inquiry to
ascertain at which level of charge the jury was deadlocked,
our Supreme Court reasoned that any doubt must be resolved
"in favor of the liberty of the citizen."
Id. (internal quotation marks and citation omitted).
Thus, our Supreme Court determined that all but the least of
the lesser included charges (i.e., voluntary manslaughter)
must be dismissed and that retrial of the defendant on all
but the least charge violated double jeopardy. Id.
In Garcia, this Court considered whether the
district court erred when it inquired whether the jury was
deadlocked on the greater offense but did not inquire whether
the jury was deadlocked on the lesser included offenses.
2005-NMCA-042, ¶¶ 2, 10. The jury in
Garcia was instructed on first degree murder, as
well as second degree murder and voluntary manslaughter as
lesser included offenses. Id. ¶ 2. The district
court declared a mistrial after learning the jury could not
reach an agreement on the first degree murder count.
Id. ¶ 20. Upon inquiry by the district court
regarding the charge of first degree murder, the foreperson
informed the court that the jury was unable to reach a
unanimous verdict on that charge. Id. The district
court did not conduct any inquiry into the jury's
deliberations on the lesser included charges of second degree
murder and manslaughter. Id. This Court determined,
based on Castrillo and its progeny, the district
court was not required to inquire into the jury's
deliberations regarding lesser included offenses when the
district court had already determined the jury was unable to
reach an agreement as to a greater offense. Garcia,
2005-NMCA-042, ¶ 17. This Court noted that the holding
was consistent with Rule 5-611(D), which requires:
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 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
See Garcia, 2005-NMCA-042, ¶¶ 25-27. On
this basis, we concluded the district court did not err in
the manner in which it polled the jury, and the
defendant's retrial and conviction of first degree murder
did not violate double jeopardy because there was a manifest
necessity to declare a mistrial on that level of the charge.
Id. ¶ 29.
Shortly after our opinion in Garcia, this Court
decided Fielder in which we considered whether the
defendant's retrial for second degree criminal sexual
penetration (CSP II) violated double jeopardy because there
was no manifest necessity to declare a mistrial on that
charge. Fielder, 2005-NMCA-108, ¶¶ 1, 10,
15. The jury in Fielder was instructed on CSP II and
third degree criminal sexual penetration (CSP III), among
other charges. Id. ¶¶ 5-6. After learning
the jury was unable to reach a verdict on CSP, the district
court polled the jury regarding the numerical split of the
votes for guilty and not guilty but did not determine whether
the jury was deadlocked on CSP II or the lesser included
offense of CSP III. Id. ¶ 8. The defendant was
retried on CSP II and the lesser included charge of CSP III
and was convicted of CSP III. Id. ¶ 9. Again
relying on Castrillo and its progeny, this Court
determined, because the district court did not inquire into
the jury's deliberations on the greater ...