OPINION
{1} Defendant Hector Cortez appeals his convictions relating to trafficking cocaine. He asserts error because, in response to a note from the jury expressing an inability to reach a verdict and revealing the numerical division with nine for conviction and three against, the district court spoke to the foreperson of the jury without the rest of the jury present, soon after which the jury returned a verdict of guilty. We reverse, holding that the procedure and communication constituted fundamental error. Defendant also raises issues regarding the State’s failure to disclose evidence relating to the State’s main witness, which, in turn, allowed the State to unfairly bolster the witness’ credibility. We hold that the prosecutorial misconduct alleged does not bar a retrial of Defendant.
DISCUSSION
{2} A full recitation of the events leading up to Defendant’s arrest is unwarranted, given that those events are not particularly important in regard to the jury communication or prosecutorial misconduct issues that we must address. Arturo Reynaga arranged to sell cocaine to an undercover police officer. When he proceeded to the meeting place for the sale, he was arrested. He quickly agreed to assist the police in pursuing Defendant’s arrest because, according to Rеynaga, Defendant was the supplier of the cocaine. Defendant was ultimately arrested and convicted of drug-related crimes in connection with this drug deal.
I. The Jury Communication Issue
A. The Circumstances
{3} During jury deliberations, the district court received a note from the jury. With Defendant and all counsel present, the court read the note. Signed by the foreperson, the note read, “The jury could not reach an [sic] unanimous decision on either case; jury split 9 votes guilty — 3 votes undecided.” Proposing to ask the foreperson “if there would be any benefit to the jury continuing onward,” the court had the foreperson come out. The following exchange between the court and the foreperson occurred in the presence of Defendant and all counsel but not in the presence of the jury:
THE COURT: Mr. Greer, I understand you are the foreperson. I have your note, and my question is at this point do you think there is any chance of it being fruitful if you continue to deliberate, not without further instructions or without some more evidence to be considered.
THE FOREPERSON: We’ve gone around the table and the same individuals feel that they haven’t received enough evidence in this case.
THE COURT: So it is really a question of further evidence.
THE FOREPERSON: It seems to me that is the case, yes, sir.
THE COURT: [I] said instructions a moment ago. Would instructions be something different than evidence, in your view?
THE FOREPERSON: If there was some way you could, if there was some set of instructions, and I don’t know what it would be, thаt you could give us, that would allow us to have a fresh perspective to allow people to reexamine their opinions, to reexamine the facts, the evidence in this case and/or just to discuss it one more time, perhaps it will be fruitful to discuss it one more time, but right now everybody, being the people who are not agreeing to the decision, are pretty confirmed in their opinions.
THE COURT: Well, this is what I would ask you to do. I would ask you to read the instructions and consider the matter after you have read the instructions together, and let me know at that point. I don’t want to force you to do anything if it is not going to be fruitful, but I do want you to read the instructions to thе jury together, and then discuss it again and see where you end up.
THE FOREPERSON: Yes, your Hon- or.
THE COURT: We’ll wait until, take as much time as you need, but if you feel it is not fruitful at that point or not going to be fruitful, then let us know.
THE FOREPERSON: Yes, your Hon- or.
THE COURT: All right, we’ll be in recess.
{4} After the foreperson left the courtroom, the court asked those present if there was anything further anyone wanted to address. Defendant did not object to the procedure used by the court or to the communications between the court and the foreperson. The next matter in court was the jury’s unanimous verdict of guilty. The record does not reflect how long the jury was deliberating, either before or after the note to the court. Defendant raised no question regarding the verdiсt before or after the jury was polled and then released. On appeal, Defendant contends that it was fundamental error for the court not to have declared a mistrial after being informed of the deadlock and numerical breakdown, and for the court to have communicated with the foreperson as occurred here.
B. Standard of Review
{5} Fundamental error is an exception to the rule that parties must preserve issues for appeal. Rule 12-216(A), (B)(2) NMRA; State v. Cunningham,
C.Asserted Error
{6} Defendant’s assertion of fundamental error is based on a breach of the sanctity of jury deliberations. A breach that occurred, Defendant argues, through (1) the court’s refusal to accept the three hold-out jurors’ votes and the jury’s decision to hang; (2) the court’s forbidden “shotgun” instruction to the foreperson that responded coercively to the jury’s note indicating its inability to reach a unanimous decision; and (3) the court’s procedure that left to speculation what the foreperson said to the jury, raising a presumption of prejudice that was not rebuttеd by the State.
{7} Defendant argues that the error is fundamental in that it attacks the heart of the jury deliberation process, a process that is “sacrosanct.” See State v. Ramming,
D. Shotgun Instructions Are Prohibited
{8} A “shotgun” instruction is prohibited in New Mexico. McCarter,
{9} In McCarter, our Supreme Court held that the district court’s note to the jury stating “You must consider further deliberations” following a note from the jury stating ‘We are at a decision of eleven to one for murder” was “tantamount to a simplified shotgun instruction.”
E. Application of Jojola to Jury Communication
{10} Jojola involved ex parte communication between the trial judge and the jury foreperson without the defendant or any counsel present.
{11} On appeal, our Supreme Court in Jojola addressed whether the communication was improper because it was ex parte and was therefore presumptively prejudicial. The Court held that the communication was improper and that the State failed to rebut the presumption of рrejudice, requiring reversal. Id. ¶¶ 6, 12-13. Among the various points emphasized by the Court was Rule 5-610(D) NMRA, which states that “[a]ll communications between the court and the jury must be in open court in the presence of the defendant and counsel for the parties unless the defendant waives on the record the right to be present or unless the communication involves only a ministerial matter.” Jojola,
{12} In elaborating on its rationale for reversal, our Supreme Court in Jojola stated that a “primary concern” was that “having one juror [the foreperson] serve as a conduit for communicating instructions to the whole panel” created an unacceptable risk that the juror will not accurately convey the message to the jury. Id. ¶¶ 10, 11 (internal quotation marks and citation omitted). The Court recognized that: “[A]ny occasion which leads to communication with the whole jury panel through one juror inevitably risks innocent misstatements of the law and misinterpretations despite the undisputed good faith оf the participants.” Id. ¶ 10 (internal quotation marks and citation omitted). Additionally, the Court stated that “we are left to speculate about how the juror interpreted the judge’s comments and gestures and about what the juror reported to the rest of the jury back in the jury room.” Id. ¶ 11. Notably, and equally important for the issue before us in the present case, the Court in Jojola stated:
The juror may have interpreted the judge’s statement to “do whatever [you have] to do” as an ultimatum to reach a verdict and may have relayed such an ultimatum to the rest of the jury. If so, the juror, inadvertently for sure, might have done what the judge would never have done — issue a so-cаlled “shotgun” instruction. The use note for this instruction provides: “No instruction on this subject shall be given.” UJI 14-6030.
Id. The procedure and communication of the district court in Jojola “concerned the jury’s deliberations and the inner workings of the jury room and the jurors’ view of the evidence,” creating an impropriety even “if the juror did not issue a shotgun instruction to the rest of the jury.” Id. ¶ 12 (internal quotation marks and citation omitted).
{13} We read Jojola to make two intertwined determinations. One, the communication was ex parte, and because it concerned the jury’s deliberations and the inner workings of the jury room and the jurors’ view of the evidence, it was improper and presumрtively prejudicial, requiring the State to rebut the presumption of prejudice. And two, with the specific communication, the process itself was improper and also presumptively prejudicial because what was ultimately communicated to the jury by the foreperson was not in writing and placed of record, and because our Supreme Court could only speculate about what the foreperson told the jury and whether the jury interpreted the district court’s words as a desire on the part of the court for the jury to reach a verdict.
{14} Although in the present case all counsel and Defendant were present during the proceedings, we think that the procedure and communication constituted error. Under the specific circumstances in the present case, we hold that the error was fundamental error. The communication with the foreperson specifically concerned the subject matter of the jury count arrived at in the jury deliberations. The court did not, as required under Rule 5-610(D), communicate in open court with the jury. We are therefore unaware of what was ultimately communicated to the jury by the foreperson. The court was informed by the foreperson that the jury’s vote count was nine guilty to three undecided. The court was informed by the foreperson that the hold-outs had not received enough evidence. Upon prompting by the court, the foreperson also inquired if there were instructions the court could give to allow the jury “to have a fresh perspective to allow people to reexamine their opinions, to reexamine the facts, the evidence in this case and/or just to discuss it one more time ... [in that] everybody, being the people who are not agreeing to the decision, are pretty confirmed in their opinions.” The court told the foreperson to read the jury instructions together and discuss it again. This might have signaled to the foreperson, or to the jury through the foreрerson’s interpretation of what the court said, that the jury was to reach a verdict. The jury presumably was aware, through the foreperson’s note given to the court, that the court knew of the jurors’ inability to reach a unanimous decision and also knew of the specific vote count. Thus, even were we to assume that all the foreperson stated to the jury was to “read the instructions together” and then to “discuss it and see where [we] end up,” it would not be unreasonable, under the circumstances, for the three undecided votes to think that the court was looking to them to change their votes. The court’s statements in Smith v. United States,
There is inevitably a risk of coercion whenever a jury is divided unevenly. Any effort by the court to persuade the jury to reach an agreement after reporting its numerical split ... may be interpreted by the minority as an implied command to agree with the majority____
... If the jury reasonably believes that the judge knows how it is divided, regardless of the judge’s actual knowledge, any pressure by the judge to reach a verdict ... will be understood by all jurors to be directed at the minority.
Smith,
{15} The jury deliberation process on guilt or innocence is sacrosanct. Its inviolability must be carefully respectеd and maintained to guard against the risk of denying a defendant a fair trial. The judge and parties are forbidden entry to the jury room deliberations. However, other aspects of the jury deliberation process are to be transparent and written or recorded, including, in particular, all communications that the jury receives from the court, and all communications that the court receives from a juror or the jury. Where guilt or mistrial hang in the balance in the jury room as it did in this case, we do not think that the question of fundamental error should turn on an assessment on review of the guilt or innocence of Defendant. Rather, it turns on the fairness of the process оf the judicial system.
{16} The State asserts that State v. Neely,
{17} The standards for holding that fundamental error exists are met under the specific facts in this ease, namely, that the jury was aware the court knew the hold-out juror count, and that it is unknown what the foreperson relayed to the jury. The communication and procedure left too much to chance and speculation. There was too much of a possibility of foreperson misstatement to the jury, and too much of a possibility of hold-out juror interpretation and belief that the court wanted the jury to return a verdict, thereby invading a defendant’s right to a fair trial by interfering with the “sacrosanct” jury deliberation process. Under such circumstances, a trial court must take every precaution to refrain from any communication or procedure that can give the jury a sense that the court wants it to reach a verdict instead of report an inability to reach a unanimous verdict. See Smith,
{18} Our fundamental error holding in this ease is a narrow one confined to circumstances in which the jury, through the foreperson or a note, informs the court of its numerical split, with a minority favoring a not-guilty verdict, and the court’s instruction to the jury in regard to further deliberations is not in open court, is oral, and is carried out through the foreperson who returns to the jury room and orally relays the court’s instruction to the jury. Our fundamental error holding is not intended to apply to court communications with the foreperson alone in regard to matters that do not crеate the risk of coercion that exists in the present ease, where error in communication should first be addressed in the district court through appropriate objection.
II. Withheld Evidence and Prosecutorial Misconduct
{19} Police officers in this case first came into contact with Reynaga through a confidential informant. Unbeknownst to the defense before or during trial because the State withheld the information, with the help of a confidential informant, the officers attempted to purchase cocaine from Reynaga on two occasions before the successful transaction that gave rise to Reynaga’s arrest. Nor was the defense made aware that Reynaga’s cousin was involved in some manner with Reynaga during an unsuccessful attempt to purchase cocaine near the furniture store where Reynaga worked.
{20} During direct examination at trial of Reynaga, the following colloquy occurred.
Q. [Prosecutor] Let me ask you this, is this the first time you had ever done a drug deal with the defendant?
A. Yes, sir.
Q. The first time you ever did a drug deal, period?
A. Yes, sir.
{21} During the direct examinations at trial of the officers involved, neither mentioned the earlier attempted drug transactions from Reynaga. Then during closing argument the prosecutor argued:
[Reynaga’s] kind of taking a risk here too, but you heard him testify. He has no criminal history that has been submitted, he’s testified he has never had any criminal problems, this is [the] first time he’s been involved with drugs. Whether you believe him or not, that’s up to you, but that’s the evidence, there’s no evidence contrary to that. The defense did not put up anything, and they didn’t have to.
{22} After the verdict, the court expressed its curiosity about how Reynaga, a co-conspirator who appeared to have no record and had not been involved in prior drug dealings, was contacted by the police for the possible sale of cocaine. Thinking that the information had sentencing implications, the court arranged for in-camera interviews with the undercover officers to learn how Reynaga came to be involved. The interviews brought to light the prior, uncompleted drug transactions involving Reynaga that occurred within a few weeks of the completed drug deal that resulted in Reynaga’s arrest.
{23} Defendant complains of the State withholding evidence material to his defense. We note that, in this case, Defendant made a demand for discovery and the district court entered a discovery order that required the State to provide to Defendant the discovery specified in Rule 5-501 NMRA. Rule 5-501(A)(3) and (6) require the State to disclose or make available to a defendant any documents or papers that are material to the preparation of the defense and “any material evidence favorable to the defendant which the [S]tate is required to produce under the due process clause of the United States Constitution.” See State v. Trujillo,
{24} Defendant argues that the State committed prosecutorial misconduct through a combination of actions and failures to act. Defendant starts with the assertion that the State withheld exculpatory evidence, namely, the prior, unsuccessful drug transactions and the cousin’s potential involvement, in violation of the Due Process Clause of the United States Constitution under the standard announced in Brady,
{25} In sum, Defendant asserts that the prosecutor’s conduct evinced “a willful disregard for any consequences for the discovery violation and the inaccurate or perjured testimony” and was sufficiently egregious to bar his retrial under State v. Breit,
{26} Because we are reversing based on the error involving the improper jury communication, we need address only whether the prosecutor’s conduct was sufficiently egregious to bar a retrial under the standard in Breit. If the conduct did not meet the Breit threshold, any possible lingering discоvery and confrontation issues that are not now moot but remain unsettled can be raised and resolved on remand.
{27} In defending against Defendant’s charges of prosecutorial misconduct, the State argues that it was not required to disclose the evidence in question because Rule 5-501(F) provides a disclosure duty exception if the disclosure will expose a confidential informant, and Rule 11-510(A) grants the State a privilege to refuse to disclose the identity of a confidential informant. In defending against Defendant’s contention that Breit bars a retrial because of the egregious nature of the prosecutor’s conduct, the State argues that, whilе the information regarding the failed attempts was withheld, the information was neither favorable to Defendant nor was it material.
{28} It appears to us that the prosecution in this case had a duty to bring to Defendant’s and the district court’s attention that it had information that arguably came within the court’s discovery order and the Brady rule. It appears that the State breached that duty. It also appears that if the prosecution was not going to disclose any of the information, it had a duty to assert the Rule 11-510(A) privilege. It appears that the State breached that duty as well. See State v. Luna,
{29} We assume, without deciding, that the prosecutor’s conduct constituted prosecutorial misconduct, and, for the reasons we discuss later in this opinion, we determine that the conduct did not meet the Breit threshold.
{30} Prosecutorial misconduct occurs when “the prosecutor’s improprieties had such a persuasive and prejudicial effect on the jury’s verdict that the defendant was deprived of a fair trial.” State v. Duffy,
when improper official conduct is so unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial or a motion for a new trial, and if the official knows that the conduct is improper and prejudicial, and if the official either intends to provoke а mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.
Breit,
{31} The Supreme Court defined “willful disregard” as connoting “a conscious and purposeful decision by the prosecutor to dismiss any concern that his or her conduct may lead to a mistrial or reversal,” and as “emphasizing that the prosecutor is actually aware, or is presumed to be aware, of the potential consequences of his or her actions.” Id. ¶34. It is evident that our Supreme Court in Breit intended the threshold of willful disregard to be high, as evidenced by the Court’s statements that “double jeopardy will rarely bar reprosecution if the misconduct is an isolated instance during the course of an otherwise fair trial,” that “[r]aising the bar of double jeopardy should be an exceedingly uncommon remedy,” and that the test was intended to be a “narrow expansion” of the more restrictive federal standard established in Oregon v. Kennedy,
{32} We look at the totality of circumstances in evaluating the prosecutor’s conduct. Id. ¶ 40. We must be careful that the citizens of New Mexico are not, without exceptionally good reason, “deprive[d] ... of their case” against a defendant, particularly when the prejudice to the defendant can be rectified by a new trial that will be free from the prejudice. State v. Day,
{33} The conduct in question consisted of the withholding by the State of any indication of and information about the two attempted, unsuccessful drug transactions involving a confidential informant, followed, at trial, with the eliciting of testimony from Reynaga that appears to have denied any such involvements on Reynaga’s part, and then the prosecutor’s closing argument to the jury bolstering Reynaga’s credibility. In considering the totality of circumstances, we determine that Defendant has failed to make a persuasive case for a re-prosecution bar.
{34} While we by no means condone the prosecutor’s conduct, we are unable to conclude that the prosecutor’s decision to withhold information regarding the two attempted drug transactions was part of or based on any plan to present questionably accurate testimony and bolster Reynaga’s credibility in closing argument. Nor are we prepared to conclude that withholding the information, along with Reynaga’s testimony and the prosecutor’s closing argument, when considered together, constituted an infestation of prejudicial conduct rather than an isolated instance during what was otherwise a fair trial. See State v. Fielder,
{35} As we read and understаnd Breit, the re-prosecution bar under the willful-disregard test is to be invoked only in rare instances when it can be shown that there exists an actual or presumed awareness by the prosecutor of the potential consequences of his or her actions together with a conscious and purposeful decision to dismiss any concern that the conduct may lead to a mistrial or reversal. See Breit,
CONCLUSION
{36} We reverse Defendant’s convictions on the ground of improper juror communication. We hold that retrial of Defendant is not barred under double jeopardy principles.
{37} IT IS SO ORDERED.