State v. Lewis, 433 P.3d 276

Defendant Kelson Lewis was tried on Count 1 for criminal sexual contact of a minor (CSCM); the jury was also instructed on battery as a lesser included offense after amendments at trial.
The jury deliberated three days and sent notes asking whether, if they could not reach unanimity on Count 1, they should consider the lesser charge; the court told them to consider the lesser only if they had a reasonable doubt on the greater.
The jury later indicated it could not reach a unanimous verdict on "Count 1." In open court the foreperson confirmed there was "no possibility for juror agreement on Count 1." The court declared a mistrial as to Count 1.
The district court found manifest necessity and permitted retrial on CSCM; defendant moved to bar retrial on double jeopardy grounds arguing the court failed to properly poll the jury under Rule 5-611(D) and the record did not clearly show whether the jury was deadlocked on CSCM or battery.
The New Mexico Court of Appeals affirmed; the Supreme Court granted certiorari to decide (1) whether the trial court complied with the polling requirement and (2) what instruction rule should govern whether juries may consider lesser offenses when deadlocked on a greater offense.

Issue	State's Argument	Lewis's Argument	Held
Whether the trial court’s polling satisfied Rule 5-611(D) so retrial on the greater offense does not violate double jeopardy	The court’s questioning of the foreperson plus the jury notes created a clear record that the jury was deadlocked on CSCM, satisfying the rule’s purpose	The court failed to strictly comply with Rule 5-611(D)’s formal polling sequence and thus created an unclear record, barring retrial on CSCM under double jeopardy	The court held the trial court did not abuse its discretion: strict formalism was unnecessary where the record clearly showed the jury was deadlocked on the greater offense (purpose of Rule 5-611(D) satisfied)
Whether a jury may consider a lesser included offense if it is deadlocked on the greater offense and how to instruct juries	(Implicitly) the State favoring an instruction that preserves the State’s ability to obtain conviction on greater offenses and prevents improper acquittals of lesser offenses without resolving the greater	Lewis argued the instruction as given (requiring acquittal of greater before lesser) was interpreted to bar consideration when deadlocked; he sought clarity on instruction approach	The Court adopted the "modified acquit first" approach: juries may deliberate in any order, but the court may not accept a verdict on a lesser included offense unless the jury has unanimously acquitted the greater offense

State v. Castrillo, 90 N.M. 608 (1977) (requires a clear record identifying which included offenses the jury agreed on and which it was deadlocked on; ambiguity favors defendant liberty)
State v. Wardlow, 95 N.M. 585 (1981) (trial court’s questioning of foreperson can establish a clear record that jury was deadlocked on the greater offense)
State v. Phillips, 396 P.3d 153 (N.M. 2017) (polling must create an unambiguous record; ambiguous poll responses require clarification or error)
People v. Kurtzman, 758 P.2d 572 (Cal. 1988) (adopts the modified acquit-first approach allowing juries to deliberate in any order but requiring acquittal on the greater before accepting lesser verdict)
Tsanas v. United States, 572 F.2d 340 (2d Cir. 1978) (analytical discussion weighing advantages and disadvantages of acquit-first vs. unable-to-agree instructions)