State v. Arellano

1998-NMSC-026 P.2d Mexico, Plaintiff- of New

STATE

Petitioner,

Rodney ARELLANO, Defendant-

Respondent.

No. 24354.

Supreme of New Mexico. Court

Aug. General, Udall, W. Attorney Arthur

Tоm General, Fe, Attorney Pepin, Santa Assistant for Plaintiff-Petitioner. Defender, Subin,

Phyllis Public H. Chief Gliek, Appellate De- Assistant Carolyn R. Fe, fender, Defendant-Respondent. Santa OPINION Justice. BACA 12-102 NMRA Pursuant to Rule appeals Appeals’ the Court the State 1997-NMCA-047, Arellano, opinion in State grant P.2d cert. 123 ed, 24,354, No. (1997), trial court’s denial reversed the Arella motion for a new trial. of Arellano’s on the trial no for new trial based moved to administer the oath found failure court’s before NMRA UJI 14-123 granted certiora- its verdict. We delivered ri to consider the Court of to whether omission the court’s attention until after trial reversing erred in the court’s jury finally denial the rendered its verdict and was Ap- discharged. the We the motion. reverse Court that Defense admitted peals’ that of the trial decision and affirm this was a tactical move.

court. Arellano moved for a new trial on the {6}

grounds jury that the had not been sworn. I. jurors, The court the recalled administered juror questioned the oath and them. Each Defendant-Appellant Rodney Arella- the assured court that he or she had followed (Arellano) charged no was with vehicular deliberations; during the oath charges homicide and other related Octo- on each stood the verdict. The court subse- 19, 1995, jury ber a On October quently denied Arellano’s motion for a new Judge was selected before in Arri- Maes Rio trial, finding that Arellano knowingly waived time, County. jurors ba At that were complied and that the had questions voir regarding dired and asked the oath with that the court would have their understanding pro- selection appeal, Ap- administered. On the Court of impartial cess its persons to find peals reversed the trial court’s decision and try jurors to the case. Thе were also asked grounds ordered a new trial on the that the they juror’s duty whether a understood to deny- its trial court had abused discretion determine facts case from the ing a new trial. The Court Appeals con- court, presented a and deliver that cluded the failure to swear the prejudice. jurors free from verdict The said a fundamental one could not jury’s duty purpose. understood the ¶ Arellano, 1997-NMCA-047, 9, waive. selected, jurors After the were appeal N.M. 1204. This follows. parties timing court asked the about the oath since the case not be would II. tried following until week Santa Fe. appeal, On we determine whether the practice The stated court that the usual is to refusing trial court abused its discretion in await the start of trial. Defense counsel grant Arellano jurors a new trial after re- he pre- stated that had “no real reason” but turned verdict because the trial court ferred immediately. failed swear in the the trial. prosecutor waiting favored for the start of 565, 569, v. Wittgenstein, See State the trial. The court then dismissed the (Ct.App.1995). We “will being without sworn. ruling disturb the trial court’s without a began The trial then October showing clear of abuse of discretion.” State Fe, county, ain different Santa Lucero, 50, 51, Judge judge, Vigil. before a different Al- Perrin, (Ct.App.1990), (citing State v. though court did not administer (1979)). 596 P.2d 516 time, at that gave pretrial usual jury’s including instructions to de- III. cide on all the case the evidence and to follow Arellano claims that the failure to jurors. the law as fair and On swear the was a fundamental structural October Arellano was convicted of argues error. Arellano the oath

vehicular homicide and sentencеd six how controls arrives at its it years prison. delivering formality is not mere that one waive. verdict not been had sworn. Because could not be determined whether jury’s After the Arellano’s trial coun- verdict would have been different aware, during sworn, sel admitted he was if urges had been Arellano not been He had sworn. his Court reverse conviction. He also argues admitted he researched issue that although had his trial counsel faced and concluded ‍‌​‌​‌‌​​​​​​​‌​‌‌​​​‌​​‌​​​‌​‌​​​‌​​‌‌​​‌‌​‌​‌‌‌‍that the verdict could nulli- ethical involving conflicting difficult dilemma fied. counsel did not call this of candor duties to the court and the the law as con- cording the evidence and client, good counsel acted his his defense Moreover, claims that his of the court. See Arellano tained in the instructions faith. Therefore, irrelevant to the doc- “[ajlthough сounsel’s actions are the trial court id. disagree. fundamental error. We trine of immedi- the oath should have administered empaneled, fail- ately jury was the after the that a be suggests law Case {9} not constitute reversible ure to do so did progress. trial is in See although the error.” Id. 650, 654, 735 Apodaca, 105 N.M. State v. 1156, on (Ct.App.1987), overruled 1160 Garcia, jurors grounds, Although State v. the here were other 419, People (Ct.App.1990); v. 796 P.2d 1115 they after rendered the ver not sworn until (Colo.1993); Smith, 365, 372 v. 848 P.2d dict, The understood we find no error. (Vt. 142, 121, 143 Roberge, 155 Vt. 582 A.2d spirit purpose of the the of the oath Morales, 85, 1990); People 168 A.D.2d v. in voir process emphasized as the selection (App.Div.1991); State v. N.Y.S.2d procedures instructions. dire Block, 489 N.W.2d Wis.2d Moreover, jurors Apodaca, in the like the Hop (Wis.Ct.App.1992); United States that, in or affirmed jurors in this case swore (5th kins, Cir.1972); 458 F.2d fact, according to they at a verdict arrived (8th Cooper Campbell, 597 F.2d Thus, they law. com the evidence and the Cir.1979). Moreover, in “irregularities the jurors’ plied with the oath. jury may waived and do swearing of the administering the of necessarily reversible error.” constitute jurors that the jurors is to ensure oath 654, 735 P.2d at 1160.

Apodaca, 105 N.M. at at all times as befits one conduct themselves Apodaca, Appeals of the Court holding important position. See UJI such an jurors did not held that the failure to swear in the Com- 14-123 NMRA 1998. As stated case, id. In that the require reversal. See 14-123, any Commentary to UJI mittee upon realizing defendant moved for a mistrial juror’s con- or affirmation that awakens been sworn after the had not impresses his or her mind with science and already presented opening its State had Rule 11-603 duty will suffice. See their The trial its first witness. statement and court acted NMRA 1998. Here the district a mistrial. On the court refused to declare determining that the its discretion day the court administered second per- carefully requirement to adhered to the jurors them to oath to the and ordered faithfully jurors form their duties as testimony if consider the first witness’s ad- Although the court did not impartially. they when heard it. had been sworn the oath in the words UJI minister See id. spirit of the oath jury understood review, On Court emphasized in the voir dire it was generally held that that “courts have stated In the procedures instructions. jury may swearing of a irregularities questions, voir dire jury instructions and necessarily constitute be waived and do jurors upon the impressed district court at reversible error.” Id. process and solemnity jury selection that “a recognized court per- important purpose to find its jury cannot be complete failure to swear jurors understood try the ease. The sons to by an unsworn a conviction waived and the case facts of their to determine nullity.” Id. The to be a generally held court, and to presented from the evidence “[ajlthough a explained that further prejudice. More- free from deliver a verdict formality, where the jury’s oath is not a mere verdict, over, jury delivered after the com- is sworn ascertained district court upon the or deliberations mencement solemnity pro- clearly understood in the reversal does not warrant the error per- been committed ceedings and had Id. at prejudice.” absence the case on the forming duty to decide omitted). their (citation court stated fair and im- the law as and follow jurors to swear or requires partial jurors. a verdict ae- they will arrive at affirm that manship, IV. see waiting to the result of the notifying verdict before the court. Defense Arellano, relying Apodaca, ar- the trial court admitted to that he gues that because was a fail- there knowingly from the court withheld his aware- ure to swear the the conviction is a ness the might was unsworn because it nullity. See id. at 735 P.2d at 1160. We benefit Defense his client. counsel had a disagree. “explain matter to the extent Here, Apodaca, unlike Defendant necessary permit client to make in- purposely bring the did not failure to swear formed his case. decisions” about See Rule attention until the court’s after 16-104(B) Nothing NMRA 1998. in the rec- Irregularities verdict. suggests ord Arellano’s failed to a may necessarily and are not waived requirement abide to “discuss the reversible error. is not an irregularity, This legal consequences this of conduct.” Rule but rather a tactical move. The Defendant 16-102(D) 1998.1 in right fact to a waived the sworn Moreover, perpetuated because Defendant recognize Although that an we at {19} error, this conviction case was not torney has the of same candor to the nullity a and is harmless error. courts that he or she does to his or her

clients, 1998; see Rule NMRA 16-102 432, Tijerina, 443, 642, 84 N.M. 504 P.2d V. 31, (Ct.App.1972), aff'd, 653 argues Arellano that under the facts {16} (1973), we will not reward a tactical case, and circumstances of this he not did obligation, maneuver that this flaunts and we right waive his jury, to a fair and attempt do not to reconcile this conflict. Un claims, sworn under oath. Arellano relying ease, der the facts and circumstances of this language on the in Apodaca, that “a the actions of Arellano’s counsel constituted failure to swear cannot be waived.” only not a his right waiver of client’s to a Apodaca 105 N.M. at P.2d 1160. poor but also a tactical move that disagree. We Moreover, we will nothing not reward. ex waiver ‘must not “[A] be volun ists in the record to show that the failure to tary, but must a knowing also constitute and administer the oath until after the verdict in intelligent or relinquishment abandonment of any way prejudiced Finally, Arellano.2 we a privilege, known a matter which note that language Arellano’s reliance on the depends particular each ease Apodaca of misplaced since the defendant facts surrounding and circumstances Arellano, in Apodaca, unlike alerted the case, background, including experience court to the fact unsworn before ” and conduct the accused.’ State v. Gil rendered its verdict. bert, (1982) (citations omitted) (quoting Edwards VII. Arizona, 477, 482, 101 451 U.S. S.Ct. (1981)).

68 L.Ed.2d 378 sum, In while we are not mini Here, mizing respect Arellano’s trial counsel its function of proceedings insuring knew of the defect and the the solemn engaged jury, yet games- a sworn case is notably, limited to its facts: most Cox, especially 1. appeal. This was true Arellano had not a direct See Bouldin v. very proceedings been active in the (1966) submit- (stating pro filings. ted numerous se showing "[w]here some there is of affirma- waiver, proof tive the burden rests on the fact, provided protec- In the district court more petitioner competent- he to establish that did not provides tion than the oath because it asked the ly intelligently waive his constitutional after the fact acted whether in accord hearing ... and that hе must justice. with fairness and burden.”) corpus (quoting habeas meet the San- appropriate We also note that the method for (10th Cir.1964)). Tinsley, doval v. 338 F.2d addressing corpus. the waiver issue is habeas mistrial, then this Court jury or declare a knowingly trial counsel that the defense fact oc- analyze reversible error case, would whether Moreover, in this jury oath. waived the not case. This was curred. Such is not the properly found the district jury, and as discussed completely unsworn We hold the oath were met. purposes of below, appellate least three there are generally not be although the oath situa- comparable courts which addressed the court bypassed, byif some inadvertence rationale, and, reached using a similar tions it to the before not administered has here, affirming as I do the same conclusion necessarily it is renders prop- because defendants did convictions error. reversible objection the late or erly preserve an conclusion, we hold that juries. incomplete reversing the trial Appeals erred Court of motion for a new of Arellano’s court’s denial preserve Arellano failed to Accordingly, we reverse the Court trial. timely by objecting in manner decision, of the dis- Appeals’ and affirm that comply 14-123 NMRA To with UJI trict court. ideally give the judges should IT IS SO ORDERED. beginning of at the standard oath which to do so is error the trial. Failure C.J., FRANCHINI, concurs. appeal. See Santil may justify reversal on State, 215, 223, 849 P.2d 115 N.M. lanes result). SERNA, (Concurring J. (1993) 358, pre (discussing whether a 366 McKINNON, MINZNER and JJ. whether it so “error was harmless or served (Dissenting). reliability the conviction the undermined rights as to prejudiced or the defendant’s rеsult). SERNA, (concurring in Justice conviction”). How warrant a reversal of his by I with ‍‌​‌​‌‌​​​​​​​‌​‌‌​​​‌​​‌​​​‌​‌​​​‌​​‌‌​​‌‌​‌​‌‌‌‍the result reached concur error, ever, properly preserve the in order to although with differ- Majority, somewhat the object attorney required to was Arellano’s the reasoning. I also wish to address ent discovery jury was not upon his that the passionate- Opinion. The Dissent Dissenting Rule 12-216 NMRA formally sworn. See [Mjajority puts New ly that “the declares require preservation (setting forth 1998 jurisprudential map as the Mexico on 1997-NMSC-032, Sosa, ments); State v. jury in a in the union where state (stat ¶¶ 564, 23-24, 1017 943 P.2d 123 N.M. sworn,” and not have to be criminal ease does preserve properly defect ing that failure to precedent Majority is “without that appellate limits review jury instructions Dissent jurisprudence.” While the American error). fundamental jury was com- to conclude seems nеcessary that it is While I believe unsworn, disagree. As respectfully I pletely attorney requested Arellano’s to note that notes, I believe that Majority time of sworn at the that the Although sufficiently in this case. sworn to la- selection, did admit Arellano’s counsel formally jury was not true that fact trial court the withholding from the ter verdict, the it rendered a until after sworn formally jury had not been understood, throughout con- Rather than strategical maneuver. of the oath because and substance essence on the constitutes waiver cluding that by the procedures, directives does, voir dire Arellano, Majority as the part of instructions, meeting thus judge, and failed to believe Arellano’s minimum and constitutionally required preserve the error. analysis. To error withstanding fundamental judge’s procedures, di- dire Voir must, rules, judges trial comply with the con- rectives, met instructions however, Arel- standard oath. Had give the by required formal minium stitutional timely during the objected in a fashion lano fundamental the error survives oath his properly preserved would have he analysis proper- If Arellano had objection for review. right error, question that judge “There is no and had the ly preserved the jury is a by a fair and refused, formally point, to swear at this 714 Escamilla, right.”

fundamental give While failure to the standard (1988). error, N.M. oath was it was not fundamental error. part The standard exceptional is a of the This is not a case of circum- stances, assurance to the to a question fair guilt where the is so doubtful that it would shock the conscience to that, Appeals The Court of held permit the conviction to stand. Unlike the Osborne, based on State v. 111 N.M. Sullivan, instruction at issue in the fail- (1991), P.2d 624 Arellano’s “failure to men- give deprive ure to standard did not tion the oath change in-this case does not Arellano of his constitutional to a fundamental structural error of the court judge his to a fair trial. Had the Arellano, 1997-NMCA-047, below.” State v. procedures failed to follow voir dire ¶ 9, Further, 940 P.2d 1204. give adequate jury failed to instructions and stated, Court without elabora- the formal would not be suffi- tion, that this failure to swear the ciently duty, informed of its and fundamental error, fundamental structural “error so fun- require error would reversal. damental cannot [it] be waived.” Id. However, Osborne, Escamilla, Mexico, like cautions New many unlike other states, the doctrine of ap- statute; fundamental error does not the oath plies only exceptional circumstances, rather, under it is mandated court rules. UJI “if question guilt ‘is so doubtful that it requires 14-123 to “swear or affirm permit would shock the conscience to will according [it] arrive at a verdict Osborne, conviction to stand[.]’” N.M. the evidence and the law as contained in the at (quoting State v. instructions of the court.” According to the Rogers, commentary committee to UJI “[t]his (1969)); Escamilla, see also oath or affirmation or other oath or (“The doctrine of fundamen- generally complies which with affirmation tal error is applied only one to be requirements under Rule 11-603 of the Rules of exceptional solely pre- circumstances and to of Evidence must be administered with other justice.”). vent a miscarriage added). pretrial (Emphasis instructions.” Rule 11-603 NMRA requires that “[b]e- Court, Supreme The United States testifying, every fore witness shall be re- Louisiana, Sullivan v. 508 U.S. quired to testify declarе that the will witness (1993), 113 S.Ct. 124 L.Ed.2d 182 stat truthfully, by oath or affirmation adminis- ed “[although most constitutional errors tered a form calculated to awaken the have been held amenable to harmless-error witness’s impress conscience and the wit- analysis,” errors, some such as de ness’s mind with the to do so.” privation to counsel or trial judge, invariably biased will selection, invalidate a con Prior to clerk example, viction. For under a questioned harmless-er the court panel: the entire “Do analysis, ror the “Fifth you, Amendment you, violation and each solemnly swear or prosecutorial comment you defen affirm that truly will well and answer testify dant’s failure to require any would not questions propounded and all you by to reversal of the conviction if the lawyers State could the court or the under his direction ‘beyond show a reasonable doubt that touching upon your qualifications to serve as complained jurors did not contribute to the in this judge case?” The instructed Sullivan, verdict obtained.’” panel 508 U.S. at chosen that the Chapman 113 S.Ct. (quoting process v. selection “persons was to find who California, 386 U.S. fairly case,” 87 S.Ct. 17 will impartially try and this (1967)). Sullivan, L.Ed.2d 705 jurors the Court opinions,” ensure “form no and to held that a instruction defining “keep reason open an mind” until all the evidence able doubt in an unconstitutional manner de and complete. instructions were judge prived the defendant of his to a “pay further advised the close atten- and constituted structural error. Id. tion” and “find and determine the facts S.Ct. 2078. this case from Significantly, the evidence.” emphasizes “spe- The Dissent juror’s emphasized that each judge in order to given prior to trial oath must be responsibilities as demands cial constitu safeguard fundamental defendants’ throughout she] [his this or exercise [he right to a trial tional impartially without judgment and or her] espouses that the oath The Dissent also Jury prejudices.” or regard to biases to the jury pay that the attention “mandates” informed each mem- number nine instruction times, particu all and witnesses at ber of the that: demeanor larly regard with to the witnesses’ judges of the facts in this You are the sole Dissent, by credibility. and your duty ease. It to determine approval Apodaca and State citing with produced here in the evidence from facts (Ariz. Godfrey, Ariz. 666 P.2d 1080 not be based on court. Your verdict should strongly supports the con Ct.App.1983), also conjecture. speculation, guess Neither just given trary notion that the prejudice influence sympathy nor should uрon the jury’s deliberations to the apply are the law as your verdict. You of a con requiring without reversal verdict as stated in these instructions facts prejudice. In other viction in the absence of them, way you decide find words, accepts although the Dissent a Godf ease. situation, rey-type1 the Dissent does one after address how such late added). (Emphasis barely jury has left the courtroom but Collectively, 14-123 and Rule UJI begun, fulfills the before deliberations have require that each member of the 11-603 impar purposes guarantees of a fair and at a or affirm that he or she will arrive swear by the Dis tial as are understood law according to the evidence and the verdict attentively sent to contained in the instructions of the as being it is bias listen to evidence as without awaken a form calculated to administered point, another case presented. Also on this impress his or her his or her conscience and not seem to upon by relied the Dissent does integrity. to act with mind with the acceptance of a late support the Dissent’s Here, jury solemnly swore that it truth- Pribble, People 72 Mich. swearing. See fully questions propounded all answered (Mich.Ct.App. App. 249 N.W.2d touching upon qualifications its to serve 1976) (“This just duty to duty is not a final jury in- judge’s remarks jurors. The law, in accordance with the render a verdict emphasized importance the of the structions duty to act in accordance with the but the duties, jury’s jury’s awakening the conscience stages trial. The oath is admin law at all upon importance it the of its impressing jurors pay attention to insure that the istered factors, process. All of these evidence, credibility role in this the observe the to present throughout the of which were most witnesses and conduct demeanor of the times, together, satisfy holding the constitution- taken as befits one themselves at all is normally requiring ‍‌​‌​‌‌​​​​​​​‌​‌‌​​​‌​​‌​​​‌​‌​​​‌​​‌‌​​‌‌​‌​‌‌‌‍important position. the standard The oath de al minimum such an right of impartial signed protect a fair and to the fundamental Arellano’s to oath: jury.”). by trial that, by administer the oath although the hold that the to relied I also note failure Dissent, pres- Godfrey similar to the violation of Rule is somewhat to trial was a technical 18.6(b) The court stated that: ent case. er- constitute reversible and does not case, was advised the necessi- In this ror. added). ty taking during Although trial in the court's ripe. trial when the issue was objection ing procedure an to the of the oath Id. during the trial. the facts of Dera- A recent Supreme case from the reasoning mus and the Court remain struggled Court of Alabama purposes with the same relevant for understanding that State, issue before us. See In re Deramus v. sufficiently was duty aware of their No. 1998 WL demonstrating necessity So.2d and of of a time- (Ala. 1998). Deramus, July ly objection by the defen- attorney. Arellano’s Deramus, *1, given 2. The oath aswas follows: WL 721 So.2d at you you solemnly Do and each of swear or you truly affirm that questions will well and answer all you by your asked of the Court as to requires 3. An Alabama statute that no criminal general qualifications juror to serve as a and by any case shall be reversed defect in the ad you truly try that will well and all and you issues objection ministration of the an unless inquiry execute all writs of submitted to during progress was made mus, of the trial. Dera according and true verdicts rendеr to the law *2, WL 721 So.2d at 244. evidence, help you and so God? Conclusion supreme At least one other state displayed reasoning to the Ma- similar notes, As the Dissent also the com- jority Mayfield, in this ease. In commentary mittee to UJI 14-123 contem- (S.C.1959), S.C. S.E.2d 716 Su- plates partic- other oath that meets preme Court of South Carolina affirmed the requirements ular will suffice. Rule 11-603 defendant’s conviction and noted that: rigid also does not adhere to notions of which particular given, oath must be as it states Appellant’s statement was the oath be “administered in a form alone, is, not sworn stands our particular purpose. calculated” for a The opinion, insufficient to overcome the con- dire, to the voir state- trary presumption. But indeed the if judge ments and the sworn, was not that was a known to fact instructions, whole, taken as a an suffice as appellant during the trial and which he juror’s oath or affirmation which awakens the should then and there have called to the impresses conscience and his or her mind judge. attention the trial His conten- according with the to arrive at a verdict tion, made for the first time than more law, satisfying to the evidence and the thus years afterwards, eight comes too late. give constitutional minimum. Failure to One not take his chance aof favor- such, irregularity, formal oath was an and, one, able verdict an after unfavorable error, potentially constituted reversible objection raise an that should have been was not fundamental structural error. Arel- made the verdict was rendered. before error, properly preserve lano failed to consequently аppellate is entitled to re- added). Id. at 723-24 This lan- only view on the issue of fundamental error. guage Mayfield supports Majority, Thus, sufficiently im- because was though Mayfield even differs pressed with the of the oath and pro provided defendant was se and the state prejudiced by was not Arellano jurors, affidavits of three of the all to the give technical failure to standard actually effect that the was sworn in agree that the Court of should be presence. defendant’s Id. at 723. reversed, conviction and Arellano’s should be The in this case its understood affirmed. pay attention to the evidence and to McKINNON, (dissenting). Justice weigh fairly in rendering the evidence only its verdict. There is the broad assertion jury in to a sworn a crimi- 14-123, that the oath contained in UJI which system nal trial is fundamental to our requires to “swear or affirm that [it] justice. expressly rejecting Without our case according will arrive at a verdict to the evi law, rule, mandatory by ignoring our in dence and the law as contained majority puts jurispru- New Mexico on the court,” structions of the transforms the map as the state in the union dential specific oath within while UJI where a in a criminal case does not have important, part many safeguards to be sworn before deliberations commence. which willingness uphold Its a conviction that criminal a fair assure defendants receive precedent unsworn is without in Ameri- properly preserved trial. If Arellano had jurisprudence. disturbing can Even more by objecting during review punish majority’s decision to Defendant judge course of the and the trial re attorney’s questionable tactic without for his by administering fused to cure the error any participated that he or was oath, standard this Court then address would Therefore, that tactic. I dissent. aware of whether the error is reversible. Neverthe less, analysis, a under fundamental error today’s effect of decision is to am in this confident verdict relegate right to the status of a fundamental surely ease “would not have been formality technicality that can a mere be different Sullivan, absent the constitutional error.” stated in ignored. As the Court of 650, 654, 280, 113 Apodaca, v. 735 508 U.S. at S.Ct. 2078. State 718 1156, by generally is a (Ct.App.1987), 1160 overruled on an unsworn held be

P.2d added)). Garcia, nullity.” (emphasis grounds by v. other State 419, 422, 1115, (CtApp.1990), 796 P.2d 1118 oath, especially of the formality....” jury’s oath not a mere “[A] is in a criminal is the con- to awaken consensus, degree a remarkable With impress upon science of the agree courts across the nation duty imposed upon the serious them. essential, integral, an is fundamental See Rule 11-603 NMRA 1998. The oath is a See, component e.g., juror trial. v. promise part of a fair State “solemn on the of each 471, 1080, duty according do his to the dictates Godfrey, [or her] 136 Ariz. 1082 (“[T]he justice of the law to see that is done.” Prib- (Ariz.Ct.App.1983) juror’s oath is an ble, 249 N.W.2d at 366. It mandates “that guar essential element of the constitutional evidence, jurors pay attention to the ob- by ‘impartial’ jury.”); a an antee to credibility serve the and demeanor of the Pelton, 789, People Cal.App.Supp. v. 116 7 witnesses and conduct themselves at all 205, (Cal.App. Dep’t Super.Ct.1931) P.2d 205 times, holding impor- as befits one such an (“The jury impaneled must be and sworn to position. designed pro- tant The oath is Martin, case.”); try a criminal v. 198 by tect of trial an fundamentаl (Neb.1977) 811, 844, Neb. 255 N.W.2d 848 impartial jury.” importantly Id. “Most (“[I]n criminal cases it is essential to the safeguard oath serves as a of a criminal validity proceeding of the defendant’s fundamental constitutional sworn.”); be v. Ban should Commonwealth by impartial jury.” to a trial an Steele v. (Pa.1958) miller, 56, 393 Pa. 143 57 A.2d State, (Ind.Ct.App.1983). 446 N.E.2d 354 (swearing is in na “fundamental recognition principles, of these our Rules ture, by implicit jury”); in trial 47 Am. prior administration the oath (1995) (“In cases, § Jury 217 criminal Jur.2d any trial: “This oath or affirmation or other validity proceeding it is essential to the generally complies oath or affirmation that sworn....”) requirements with the of Rule 11-603 of the Rules of Evidence must be administered with reported I am of no aware decision pretrial other instructions.” UJI 14-123 any jurisdiction the United States commentary (empha- NMRA 1998 committee by has affirmed a conviction an unsworn added). sis contrary, To all courts but ours by treat conviction unsworn as a given prior The oath must be Pelton, (“A See, nullity. e.g., See, 7 P.2d at 205 e.g., Apodaca, deliberations. 105 nullity.”); (“[Wjhere conviction an unsworn N.M. at 1160 (“[I]f Godfrey, 666 P.2d at 1082 the oath prior is sworn to com- at all were we would have no mencement deliberations finding the error does not hesitation reversible error even warrant reversal added)); prejudice.” (emphasis absence of any showing prejudice.”); absent actual Godfrey, Pribble, (affirming 666 P.2d at 1082 convic- People Mich.App. 249 “jurors tion where were sworn (“[H]ad to their (Mich.Ct.App.1977) N.W.2d ” added)). deliberations When proceeded this trial to conclusion without a members of the venire take the then- properly impaneled jury, any and sworn re jurors commences, collectively they status as invalid.”); sulting conviction would have been jeopardy become a and double attaches. Robinson, 321, 176 Commonwealth v. 317 Pa. Bretz, See Crist U.S. 98 S.Ct. (Pa.1935) (“[U]nless it ‍‌​‌​‌‌​​​​​​​‌​‌‌​​​‌​​‌​​​‌​‌​​​‌​​‌‌​​‌‌​‌​‌‌‌‍A. affirma (1978). thereto, Prior L.Ed.2d tively appears in a criminal case that are members of the venire defendants, jury was sworn as to all Pelton, nullity. conviction them is a See [right by jury] to trial constitutional ' breached.”); Apodaca, 105 N.M. at (“[A] complete P.2d at 1160 failure to swear According majority,1 Defen- cannot be waived and a conviction dant waived his to a timely object way argument the De- 1. The of the concurrence that fendant failed is but another unclear, However, certainly is not estab- undisputed that his curred is and jury. it is by lished the record. be sworn requested empaneled in Tierra originally when it was Finally, speculatively, the ma- and objected, apparently The Amarilla. State jority significаnt finds it that the Defendant sworn several preferring that pro filed numerous se motions and therefore Fe, empaneling days later in and the Santa attorney’s It party was a to his trial tactic. agreed. trial commenced with a judge When neglects to state that the Defendant’s first judge presiding, the was different activity lawyer urged stop him to this be- and after De- sworn until after good cause were “not motions and ... trial court. fendant’s counsel had alerted the significantly impairing defense.” [were] [his] circumstances, these Defendant did Under hardly Again, filing pro of se motions is right jury, to a sworn not waive his knowing intelligent of a waiver perhaps inadvertently this the State invited right by a of the fundamental to be tried error. Gilbert, jury. 98 N.M. Cf. at 818. P.2d that Defendant There is no evidence majority places on the burden intelligently right knowingly and waived his prove that hе not waive his did Gilbert, jury.2 a sworn State v. 98 Defendant Cf. right to a sworn and that constitutional (1982) (re- 530, 534, 814, 818 appropriate litigating method for voluntary, knowing, intelligent quiring by corpus proceeding, a habeas issue is relinquishment right before abandonment (See 2.) Maj. appeal. op. a at 296 n. direct waived). majority to counsel is mistak- However, our case law instructs that it will 16-104(B) enly points to Rule NMRA 1998 presumed never be that a criminal defendant presuming a was an basis Defendant right. a fundamental constitutional waived attorney’s participant active in his trial tactic. See, Lewis, 218, 221, e.g., explain only requires lawyer This Rule that a (Without (Ct.App.1986) prospects “general strategy and of success” showing” of waiver of fundamental “clear litigation, not a trial tactic such as this appeal right, “the court on will constitutional (“[A] lawyer Rule 104 comment ordi- one. every presumption indulge in reasonable expected narily cannot be to describe right, will not against [the] the waiver of detail.”). importantly, strategy ... More presume acquiescence in its loss.” any explanation there is no evidence that added)). To establish the waiver of a funda tactic ever to the Defendant. right, must mental constitutional the State 16-102(D) Relying on Rule NMRA heavy proving knowing a carry a burden 1998, majority speculates right. that the Defen- intelligent relinquishment of that attorney. approved Boeglin, the tactic of his dant See State v. (“[T]he 1274, 1280 attorney (Ct.App.1983) from burden this rule forbids an counseling proof establish a waiver of a constitu

misleading the court or client right [T]he tional rests the State.... the court. The comment to the rule mislead clear attorney indicate[ ] record defendant’s [must] does not to “discuss court, actions of a vol misleading the manifestation words and legal consequences” of Lewis, choice.”); 104 N.M. at specifically untary see also attorney forbidden since (“The constitutional any of 719 P.2d at engaging in such conduct. How from counsel remains right to the assistance of that such communications oc- this establishes jury’s being objection have resulted in the saying to ob- would that Defendant waived his ject appeal “preserve” because he did not Bringing the error to the court's atten- sworn. addition, majority both the and the error. concurrence certainly would result in tion before deliberations strongly rely on counsel's failure to Thus, prac- as a the court's timely error. For alert the trial court of the matter, "error” for re- there would be no ticаl reasons, any majority” "the these reference to appeal. of a Where the violation view on Special Concurrence. includes review, virtually is illuso- immune from ry- pres- respect similar 2. With to the concurrence's any timely argument, point we out that ervation Disciplinary Rules. affirmatively until sanctions under our with an accused right But in the absence of evidence that in the record that defendant’s shown Defen- knowingly participated in this tactical intelligently, understanding^ dant has been him.”). decision, legal Further- there is no constitutional or competently waived more, justification deny him a duty-bound to em- to sworn the trial court was jury prior panel a sworn to delibera- tions, irrespective of counsel’s silence.3 See propriety The issue of the of de- commentary (requir- 14-123 committee UJI sеparate fense counsel’s conduct is from the

ing pre- “with other administration of oath question jury’s of whether an unsworn “ver- added)). trial instructions” dict” is valid. His tactical decision does not Cox, Relying on Bouldin v. alter fact that no oath was administered (1966), majority deliberations, prior required by to our waiver issue be raised asserts should Apodaca, reasoning Rule corpus proceeding in a rather than on habeas every N.M. at 735 P.2d at Bouldin, appeal. being direct after ad- other case in the United States. decided counsel, vised of his the defendant There will seldom be evidence that open declared three times court that he participated in trial the client has tactics of basis, did not want counsel. See id. On this counsel. But the answer to this void is not a trial court that he waived his found had departure process. radical from due Finding to counsel. See id. substan- price adhering principle and the estab- waiver, support tial we de- lished law here is the cost of a new corpus nied habeas relief. compared this cost is minuscule when Bouldin does not deprivation of one of Defendant’s fundamen- litigated right to counsel issue be in a habeas rights. tal We must not affirm a conviction Ironically, Apodaca, proceeding. which is any price, vigilant but instead be in the major- upon repeatedly by or relied cited rights, defense of our constitutional one ity, the sworn issue was raised on direct being By them to a fair trial. appeal, as it is here on a writ of certiorari. attributing strategy the tactics and of his Further, 105 N.M. at 735 P.2d at 1157. majority counsel to the Defendant has Bouldin, unlike where the defendant’s own dеprived process the Defendant of due waiver, a clear words established law. finding basis here for a waiver was counsel’s Therefore, respectfully DISSENT. trial tactic. today’s ruling The effect is to MINZNER, J., concurs. deprive Defendant of a fair trial ignore Apoda- his counsel’s conduct and to

ca’s admonition that “a failure to

swear the cannot [before deliberations]

be ...” 105 N.M. at waived may Arguably, have violated obligation perform competently by

his insisting be at the

commencement of trial or at least Rule 16-101 NMRA 1998

deliberations.

(competence). He also have violated obligation

his of candor toward the court. 16-303(A) (candor

Rule NMRA 1998 toward tribunal). Indeed, may subject he recognized duty: being 3. The court "This sworn in.” accepts responsibility for the notes Id. at 1081-82 requested preliminary and was instruction goes that "if the oath were not on to state by carefully listen to the evidence hesitation in given at all we would have no addition, opening arguments. coun- In showing defense finding even absent reversible error did not call to the court’s attention sel prejudice,” defense counsel the fact that of actual sworn, suggest or had not been apparently was unsworn was aware that the following by were the court the trial instructions bring attention this to the court's and did not ju- adequate. Although appellate deter- in the court's served as a factor in the left the courtroom to confer rors uphold swearing at such a mination to room, appears were recalled within stage. late facts, we Under these minutes to be sworn. Saybolt, argued 461 N.W.2d dant that his conviction was void (Minn.Ct.App.1990), the oath was not clerk administered an oath2 to given just prior closing arguments, petit jury until venire but not to the appellate empaneled and while the court stated that was selected hear his case sacred,” *1, required by are not formalities” but “are “[o]aths as statute. Id. at 721 So.2d сase, upheld present the court the conviction. The defen- 243. As with the the defen- guilty dant raised the issue of the unsworn in dant was found and then he for moved his motion for a new but the court held new on the basis that the was not object timely that the defendant did not in a sworn. Id. The Court that: stated manner, failing preserve thus the error. Although the record does establish Dissent, Saybolt Id. Unlike the the court in a, given that the oath was second time to accept did not that the failure to administer petit who were selected and the oath at the outset of trial could be cured empaneled case, to hear [defendant’s] (“It giving a mid-trial of an oath. Id. clearly record establishes that the oath the appellant objected clear that had to the late venire, gave clerk which con- swearing in and asked а mistrial at this for persons all tained those who later served point, preserved the error would have been petit jury, language tracks the order.”) (empha- and new trial would be in [both the statute and the court rule]. added). sis The court determined that failure *2, Id. at 721 So.2d at 244. The Court held to raise issue at trial forfeits the defen- that “in view of the administration of the issue, appeal dant’s on this “unless previous tracking language perpetrate failure to do so would a substan- oath, required we do not view this case as a injustice tial in the sense that an innocent Further, ‘no oath at all’ situation.” Id. Thus, person may have been convicted.” Id. Court held that the error would be reversible do, I analyzed the court whether the late objected if the defendant during had swearing constituted fundamental error be- trial, thereby proрerly preserving alleged objection cause timely: was not appellate error for review. Id.3 Here, showing there is no the late Although ‍‌​‌​‌‌​​​​​​​‌​‌‌​​​‌​​‌​​​‌​‌​​​‌​​‌‌​​‌‌​‌​‌‌‌‍the Alabama oath contains swearing the trial in affected further references to the duties of the any manner. There is no claim of actual case, given than the oath again prejudice, Although and we find none. stress the cumulative effect of the error, late in was we find no here, judge, remarks and the injustice, error, substantial no fundamental instructions. While Alabama includes statu- prejudice and no appellant. incurable tory provisions which direct the administra- Therefore, appellant precluded from now procedure appeal, tion of the oath and raising this issue because of his failure to New Mexico pro- statutes contain no similar object or move for a mistrial visions, requiring either requir-

Case Details

Case Name: State v. Arellano

Court Name: New Mexico Supreme Court

Date Published: Aug 14, 1998

Citation: 965 P.2d 293

Docket Number: 24354

Court Abbreviation: N.M.