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State v. Phillips

Supreme Court of New Mexico

May 15, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
CLIVE PHILLIPS, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY David Williams, District Judge

          The Hastings Law Firm Mark A. Earnest Albuquerque, NM Law Office of Theresa M. Duncan Theresa M. Duncan Albuquerque, NM for Appellant

          Hector H. Balderas, Attorney General Maris Veidemanis, Assistant Attorney General Santa Fe, NM for Appellee

          OPINION

          EDWARD L. CHÁVEZ, Justice.

         {1} This case addresses the procedure for determining whether a jury is deadlocked. A jury is deadlocked or "hung" on a crime when the jurors cannot unanimously agree on a verdict of guilty or not guilty for that crime. If the jury is deadlocked on a crime, the defendant may be retried for that crime without violating constitutional protections against double jeopardy. Conversely, double jeopardy protections prevent a retrial when the jury has rendered a verdict. It follows from these basic precepts that 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. The defendant may be retried on the offense on which the jury was deadlocked and any lesser included offenses. Importantly, the judge must confirm that the jury did not unanimously agree that the defendant was not guilty of one or more of the included offenses because the constitutional protection against double jeopardy precludes the State from prosecuting the defendant for such offense(s) since the jury's unanimous agreement on a verdict of not guilty constitutes an acquittal. If the judge fails to clearly establish on the record the offense(s) on which the jury was deadlocked, all but the lowest offense must be dismissed and the dismissed offense(s) cannot be retried.

         {2} In this case, the jury announced that it was hung on Count 1, which required it to consider whether Defendant Clive Phillips was guilty of first-degree premeditated murder, second-degree murder, or voluntary manslaughter. The district court then polled the jurors. During the poll, seven jurors stated that the jury had unanimously agreed Phillips was not guilty of first-degree murder, but five jurors indicated the jury was unable to reach a verdict on that crime. The only verdict form given to the jury that exclusively referred to first-degree murder was the guilty verdict form, so there is no written record of whether the jury had acquitted Phillips of that crime or deadlocked during deliberations. The district court determined that the jury was hung on first-degree murder. We hold that the judge failed to clearly establish on the record whether the jury deadlocked on first-degree murder, and therefore Phillips can only be retried on the lowest offense in Count 1, which is voluntary manslaughter. We reverse the district court and remand to dismiss the first- and second-degree murder charges with prejudice.

         BACKGROUND

         {3} Phillips shot his former girlfriend and shot and killed his friend after discovering them in bed together at the home they all shared. The State prosecuted Phillips for a number of crimes, and seven counts were submitted to the jury after trial, including Count 1, which contained the crimes of first-degree murder, second-degree murder, and manslaughter. The jurors did not enter a verdict on Count 1.

         {4} To resolve Count 1, the jury had the option of entering a verdict finding Phillips guilty of first-degree murder, second-degree murder, or voluntary manslaughter, or a verdict finding him not guilty of all three crimes. Because second-degree murder is a lesser included offense of first-degree murder, and voluntary manslaughter is a lesser included offense of both first- and second-degree murder, the model jury instruction used in this case requires jurors to individually consider each greater offense before considering a lesser offense. See UJI 14-6012 NMRA; UJI 14-250 NMRA. Under the model jury instruction, the jurors first must determine whether they unanimously agree that the defendant is guilty of first-degree murder. UJI 14-250. If they agree that the defendant is guilty, the jury enters a guilty verdict for first-degree murder and does not need to consider second-degree murder or voluntary manslaughter. Id. If not, after reasonable deliberation, the jurors must then consider second-degree murder. Id. The jurors follow the same procedure with respect to second-degree murder and only consider voluntary manslaughter if they cannot unanimously agree that the defendant was guilty of second-degree murder. Id.

         {5} If the jurors unanimously determine that there is reasonable doubt that the defendant committed any one of the aforementioned crimes, their verdict must be that the defendant is not guilty of that crime. Id. The jury in this case was not provided with a "not guilty" verdict form for each crime. Thus, if the jurors unanimously agreed that Phillips was not guilty of first-degree murder, they had no verdict form on which to indicate an acquittal on that specific crime because the only "not guilty" verdict form available to the jury on Count 1 required the jury to unanimously find Phillips not guilty of all three crimes.

         {6} If the jurors cannot unanimously agree on any verdict for a count with lesser included offenses such as Count 1 in this case, the trial court must poll the jurors, beginning with the greatest offense, to determine whether they unanimously found the defendant not guilty of any individual offense within the count. Rule 5-611(D) NMRA. If the jury has unanimously found a defendant not guilty of any offense within the count, the trial court is required to enter a verdict of not guilty for the offense and for any greater degree of the offense. Id.

         {7} The jurors in this case deliberated for three days. On the second day of deliberations, the jurors sent a note to the court indicating that some jurors believed that Phillips was guilty of second-degree murder because the State had proved that there was no sufficient provocation, and therefore those jurors were forced to vote against manslaughter. The note also indicated that the jurors agreed on all other elements of both offenses and asked the court for guidance on how to proceed. The note did not mention whether the jurors had voted to acquit Phillips or were deadlocked on first-degree murder. The court replied that the jurors had been "given all the procedural instructions." The jury continued to deliberate.

         {8} On the third day, after approximately six additional hours of deliberations, the jury sent a note to the court reading: "What does it mean if we don't sign any of the papers on Count 1? We are hung." Concerning Count 1, the jury only received four papers for signature. The first was a verdict, which read "We find the defendant guilty of first degree murder by a deliberate killing as charged in Count 1." The second was a verdict, which read "We find the defendant guilty of second degree murder an included offense of Count 1." The third was a verdict, which read "We find the defendant guilty of voluntary manslaughter an included offense of Count 1." The fourth and last was a verdict, which read "We find the defendant not guilty of Count 1."

         {9} Later that afternoon, the court called in the jury, and a juror informed the court that the jurors had not reached a verdict on Count 1 and that they would not reach a verdict, even with more time to deliberate. With respect to the charges in Count 1, the court asked "so as to none of them, you could not reach an agreement?" to which the juror responded "No, " which the court-despite the form of the question-interpreted to mean that the jurors could not reach an agreement. A jury poll was therefore required ...


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