433 P.3d 276
N.M.2018Background
- Defendant Kelson Lewis was tried on a five-count indictment; Count 1 charged criminal sexual contact of a minor (CSCM) with battery listed as a lesser included offense. The jury had three possible verdicts for Count 1: CSCM, battery, or not guilty on the count.
- The jury sent notes during deliberations indicating it was unable to reach unanimity on “Count 1” and asked whether it should consider the lesser charge; the court replied that the jury should only consider the lesser if it had a reasonable doubt as to the greater.
- After further deliberation the jury foreperson confirmed in open court that there was “no possibility for juror agreement on Count 1.” The court declared a mistrial as to Count 1 and the State sought retrial on CSCM.
- Lewis moved to bar retrial on double jeopardy grounds, arguing the court failed to properly poll the jury under Rule 5-611(D) and thus did not create a clear record whether the jury was deadlocked on the greater or the lesser offense.
- The district court denied the motion; the Court of Appeals affirmed. The New Mexico Supreme Court granted certiorari to decide (1) whether the polling requirement was satisfied and retrial on the greater offense is barred by double jeopardy, and (2) what instruction framework should govern the order in which juries consider greater and lesser included offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court satisfied Rule 5-611(D) and may retry Lewis on the greater offense without violating double jeopardy | State: the record (jury notes plus foreperson’s in-court confirmation) clearly shows the jury was deadlocked on CSCM, satisfying the rule’s purpose and allowing retrial | Lewis: the court failed to formally poll jurors by degree beginning with the highest offense per Rule 5-611(D); without strict compliance the record is ambiguous and retrial on CSCM is barred by double jeopardy | The court held the purpose of Rule 5-611(D) is to create a clear record of which offense the jury deadlocked on; strict formalism is not required. Here the notes plus foreperson’s confirmation established that the jury was deadlocked on CSCM, so retrial on CSCM is permitted. |
| Proper instruction on order/manner of deliberating greater and lesser included offenses | State: (implicitly) current UJIs sufficed; trial court’s interpretation (no moving to lesser if deadlocked on greater) was reasonable | Lewis: (raised below) trial court’s instruction that the jury may not consider the lesser while deadlocked on the greater raises ambiguity and potential error | The court sua sponte adopted the “modified acquit first” rule: juries may deliberate on offenses in any order, but the court may not accept a verdict on a lesser offense unless the jury has unanimously returned a not guilty verdict on the greater offense. The Criminal UJI Committee is directed to revise instructions accordingly. |
Key Cases Cited
- State v. Castrillo, 90 N.M. 608 (clarifies need for clear record when jury deadlocks on included offenses; ambiguity barring retrial on greater offense)
- State v. Phillips, 396 P.3d 153 (interpreting polling requirements and requiring a clear record to support mistrial on all offenses in a count)
- State v. Wardlow, 95 N.M. 585 (upholding mistrial where foreperson’s statements made record clear that jury was deadlocked on greater offense)
- People v. Kurtzman, 758 P.2d 572 (adopts modified acquit-first approach permitting deliberation in any order but requiring unanimous acquittal of greater offense before accepting a verdict on lesser)