ORIGINAL PROCEEDING ON CERTIORARI Christina P. Argyres,
Bennett J. Baur, Chief Public Defender B. Douglas Wood, III,
Assistant Appellate Defender Santa Fe, NM for Petitioner.
H. Balderas, Attorney General Marko David Hananel, Assistant
Attorney General Santa Fe, NM for Respondent.
BARBARA J. VIGIL, JUSTICE.
In this appeal we address two issues which arise when a jury
is asked to render a verdict on a count that includes both
greater and lesser offenses and it deadlocks in its
deliberations on the greater offense. First, we clarify what
is required of the district court under Rule 5-611(D) NMRA in
polling the jury to determine on which offense the jury has
deadlocked. We hold that a district court satisfies the
requirements under Rule 5-611(D) when it has established a
clear record as to which offense the jury is deadlocked.
Strict compliance with the provisions of Rule 5-611(D) is not
necessary to fulfill its purpose. Second, we recognize an
ambiguity in our existing jury instructions regarding the
order in which a jury must deliberate on counts which include
both greater and lesser included offenses. To resolve this
ambiguity and provide guidance to courts and litigants
forthwith we adopt an approach to jury instructions that
enables the jury to consider both the greater and lesser
offenses under a count in any order it deems appropriate
provided it return a verdict of not guilty on the greater
offense before the court may accept a verdict on the lesser
The State prosecuted Defendant, Kelson Lewis, under a
five-count indictment. The only count at issue in this appeal
is Count 1, under which Defendant was charged with criminal
sexual contact of a minor (CSCM) contrary to NMSA 1978,
Section 30-9-13 (2003). At the close of the State's case
at trial, the district court granted the State's motion
to amend the CSCM charge from second to third degree and
granted Defendant's motion to include battery as a lesser
included offense under Count 1.
The jury was therefore instructed that there were three
possible verdicts for Count 1: guilty of CSCM, guilty of
battery, or not guilty on the entire count. The jury was not
provided with a verdict form for a not guilty verdict on CSCM
specifically. The district court also instructed the jury,
"If you should have a reasonable doubt as to whether
Defendant committed the crime of [CSCM], you must proceed to
determine whether he committed the included offense of
battery." See UJI 14-6002 NMRA.
On the third day of deliberations, the jury sent a note to
the district court asking, "If we cannot come to a
unanimous decision for Count 1, do we move on to
discuss/decide on the lesser charge for Count 1[?]"
After consulting with defense counsel and the State and
receiving their consensus, the district court responded by
sending a note to the jury stating, "If you have a
reasonable doubt as to the guilt on Count 1, only then do you
move to consideration of the included offense of
Thirty minutes later, the jury sent a second note asking,
"On the count of criminal sexual contact we are unable
to reach unanimous decision of guilty or not guilty. Should
we move on to a lesser charge of battery?" Again with
the agreement of both defense counsel and the State, the
district court responded with a note stating, "No. Have
you reached a unanimous verdict on the other counts?"
Roughly thirty-five minutes later, the jury sent a note
stating that it had completed its deliberations on the other
counts. The district court then confirmed with the jury that
it had completed its deliberations as to Count 1.
After calling the jury into court, the district court had the
following exchange with the jury foreperson:
THE COURT: I'm also understanding none of the forms are
signed as to Count 1. And based on the note you all sent,
it's my understanding that there's no possibility for
juror agreement on Count 1; is that correct?
THE JUROR: That is correct, Your Honor.
THE COURT: And I'm seeing heads shaking in the jury box
that there's not -- you're unable to reach unanimous
verdict. Is that correct[?]
THE JUROR: That's correct.
district court stated it would declare a mistrial as to Count
1. The district court issued an order finding manifest
necessity to declare a mistrial as to CSCM on the basis that
the jury was unable to reach unanimous agreement as to that
offense. Defendant filed a motion to bar retrial on the
greater offense of CSCM on double jeopardy grounds. Defendant
asserted that the jury was not polled regarding Count 1 and
therefore there was not a clear record as to whether the jury
was deadlocked on CSCM or battery. The district court denied
Defendant's motion, finding that its procedure was proper
under Rule 5-611(D) because it polled the jury through the
notes exchanged during deliberations and "reaffirmed in
open court" that "the jury could not reach a
unanimous decision as to Count 1."
Defendant appealed the district court's order to the
Court of Appeals, claiming that the district court failed to
properly poll the jury on Count 1 and therefore retrial on
the greater charge of CSCM would subject him to double
jeopardy in violation of the Fifth Amendment to the United
States Constitution and Article II, Section 15 of the New
Mexico Constitution. State v. Lewis, 2017-NMCA-056,
¶ 2, 399 P.3d 954. The Court of Appeals rendered an
opinion affirming the district court's order.
Id. ¶ 17. Defendant filed a petition for writ
of certiorari with this Court asking us to review the Court
of Appeals' opinion, which we granted pursuant to Rule
12-502 NMRA. In addition to the issue raised by the Defendant
regarding whether the district court adequately polled the
jury as to Count 1, we asked the parties to address the issue
of whether the district court erred by instructing the jury
that it could not consider the lesser included offense of
battery if it was deadlocked on the greater offense of CSCM.
See State v. Jade G., 2007-NMSC-010, ¶ 24, 141
N.M. 284, 154 P.3d 659 (acknowledging "that as a general
rule, propositions of law not raised in the trial court
cannot be considered sua sponte by the appellate court"
but that we have done so for "questions of a general
public nature affecting the interest of the state at
large" (internal quotation marks and citations
We proceed to address two issues which lie at the core of the
jury's inability to agree on a verdict of guilty or not
guilty on the greater charge of CSCM. First, we address
whether retrial of Defendant on the greater charge of CSCM
would violate constitutional protections against double
jeopardy-being tried twice for the same crime-where the
district court did not strictly comply with the formal
requirements of Rule 5-611(D) but clearly established on the
record that the jury was deadlocked on CSCM. We then turn to
the second issue regarding how a district court must instruct
a jury on the manner and order in which it is to deliberate
on a count with lesser included offenses. In addressing this
second issue, we acknowledge an ambiguity in our existing
jury instructions and address the problem by providing
guidance to courts and litigants alike.
The District Court Did Not Abuse Its Discretion By
Declaring a Mistrial on All Offenses Under
Count 1 Where it Had Established a Clear Record That the Jury
Was Deadlocked on the Greater Charge of CSCM
"A double jeopardy challenge is a constitutional
question of law which we review de novo." State v.
Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. Central
to that question in this case is whether the district court
erred by determining that the jury was deadlocked on the
charge of CSCM based on the notes sent during deliberations
and its exchange with the jury foreperson after
deliberations. We review a district court's determination
that the jury was deadlocked on a particular charge under a
count with greater and lesser included offenses for an abuse
of discretion. See State v. Phillips, 2017-NMSC-019,
¶¶ 1, 14, 396 P.3d 153; State v. Wardlow,
1981-NMSC-029, ¶¶ 12-13, 95 N.M. 585, 624 P.2d 527.