399 P.3d 954
N.M. Ct. App.2017Background
- Defendant Kelson Lewis was indicted on multiple counts including second-degree criminal sexual contact of a minor (CSCM) in Count 1; trial proceeded with the jury instructed on CSCM and the lesser-included offense of battery.
- After the State rested, the court allowed amendment of Count 1 from second- to third-degree CSCM and permitted a jury instruction for battery as a lesser-included offense.
- During deliberations the jury sent notes indicating it could not reach a unanimous decision on Count 1 and asked whether it should consider the lesser charge; the court instructed the jury not to consider the lesser charge unless it had reasonable doubt as to Count 1 and later confirmed the jury was unable to agree on Count 1.
- The court declared a mistrial as to Count 1 (CSCM), directed verdicts of acquittal on certain other counts, and the jury acquitted on two counts; defendant moved to bar retrial on Count 1 based on double jeopardy grounds.
- The district court denied the motion; the Court of Appeals affirmed, concluding the record sufficiently showed the jury was deadlocked on CSCM (Count 1) so manifest necessity supported the mistrial and retrial does not violate double jeopardy.
Issues
| Issue | State's Argument | Lewis's Argument | Held |
|---|---|---|---|
| Whether retrial on CSCM is barred by double jeopardy when the jury declared a mistrial after indicating it was deadlocked on Count 1 | Mistrial was manifestly necessary because the record (jury notes and foreman confirmation) shows the jury was hung on CSCM, so retrial does not violate double jeopardy | The court failed to properly poll the jury to determine whether deadlock was on CSCM or on the lesser-included battery; absent a clear post-deliberation poll, an implied acquittal bars retrial | Affirmed: communications and foreman’s statements show the jury was deadlocked on CSCM; manifest necessity existed and retrial is permitted |
| Whether Rule 5-611(D) required a formal post-deliberation poll to determine level of deadlock | The jury’s notes and the court’s colloquy satisfied the Rule’s intent; strict formality is not required where the record clearly shows the level of deadlock | Failure to conduct the mandatory post-deliberation poll violated Rule 5-611(D); any ambiguity must be resolved for the defendant | Majority: substantive compliance sufficed here; dissent: strict post-deliberation polling is required and the majority improperly relaxes Rule 5-611(D) |
| Whether ambiguity in the record requires resolving doubt in favor of the defendant (Castrillo principle) | No ambiguity: the jury twice stated it was unable to reach a unanimous decision on Count 1 and did not indicate any change, so Castrillo does not apply | Record allowed for possible change during the final 35 minutes; ambiguity should be resolved in defendant’s favor per Castrillo | Majority: no ambiguity; Castrillo distinguishable. Dissent: ambiguity remained and should preclude retrial |
| Whether the district court’s method (notes and verbal foreman confirmation) satisfied the purpose of polling | Yes — form should not trump substance when communications clearly identify the deadlocked charge | No — Rule’s mandatory ‘‘shall poll’’ means a post-deliberation poll is required to remove any possible ambiguity | Majority: satisfied. Dissent: not satisfied; Court of Appeals should not create exceptions to Rule 5-611(D) |
Key Cases Cited
- State v. Castrillo, 90 N.M. 608 (N.M. 1977) (if record is silent as to which included offense the jury was deadlocked on, doubts resolved for defendant)
- State v. Garcia, 2005-NMCA-042 (N.M. Ct. App. 2005) (no requirement to poll on lesser offenses after determining jury is deadlocked on the greater offense)
- State v. Fielder, 2005-NMCA-108 (N.M. Ct. App. 2005) (failure to inquire into level of deadlock can negate manifest necessity and bar retrial)
- State v. Collier, 2013-NMSC-015 (N.M. 2013) (acquittal or hung jury on greater offense does not preclude conviction on lesser-included offense when properly instructed)
- State v. Baca, 2015-NMSC-021 (N.M. 2015) (acquittal bars retrial even if underlying legal rulings were erroneous)