State v. Neely

819 P.2d 249 Mexico,

STATE New Plaintiff-Appellee, NEELY, Defendant-Appellant. Judith

No. 19085. Mexico. Supreme Court New Sept. Ransom, J., concurring specially filed a opinion. J., opinion con-

Montgomery, filed an dissenting part. curring in part Robins, Defender,

Jacquelyn Chief Public Maestas, Rogoff, Appel- Bruce Gina Asst. Defenders, Fe, late for defendant- Santa appellant. Udall, Gen., Atty. Major,

Tom Elizabeth Gen., Fe, plaintiff- Atty. Asst. Santa appellee. Norwood, Albuquerque,

J. Michael Wil- Carpenter, Albuquerque, for liam H. ami- Lawyers cus curiae NM Trial Ass’n. Daniels, Bergman, Barbara Charles W. Albuquerque, for amicus curiae NM De- Lawyers fense Ass’n. Balske, Montgomery,

Dennis for amicus curiae of Criminal National Ass’n Defense Lawyers.

OPINION

BACA, Justice. Neely appeals her

Defendant Judith con- murder, first degree viction on one count of murder, attempted three counts and two aggravated battery, for counts of which imprison- she a sentence of life received plus years. twenty-seven ment ill- Neely, history who had a of mental ness, family, killing her car into a drove member, others, injuring one two and leav- ing uninjured. The is- physically one sole criminally sue at was she was trial whether to NMSA Section insane. Pursuant (Repl.Pamp.1984), 31-9-3 returned ill. Appel- presents following lant issues for our (1) consideration: Whether process due or verdict violates protection, subjects equal a defendant (2) punishment; whether cruel and unusual failure to in- restriction of voir dire and on the of the struct the ill ver- process deprived appellant dicts due trial; (3) commu- fair whether the court’s juror appellant’s an ill ab- nication with reversal; (4) requires sence whether it failed to its discretion when court abused being mistrial after informed declare a deadlocked; (5) whether sentenc- jury was (6) principles; jeopardy double violated composition venire whether the statutory constitu- appellant’s violated process rights guaranteed her due cumulative rights, and whether tional Af- trial. fifth and fourteenth amendments appellant of a fair deprived error arguments appellant’s by Article Constitution and consideration United States ter by the New Mexi- filed II, an amicus brief Mexico 14 and 18 of the New Sections support of Association Lawyer’s pro- co Trial Essentially, due three Constitution.4 affirm. appellant, we presented: 31-9-3 claims are Sections cess purpose, legitimate fulfill a -4 do not and to the provisions pertinent statutory The regarding criminal the they confuse mentally ill are NMSA guilty of but verdict the risk of a they and create responsibility, (Repl.Pamp. to -42 1978, 31-9-31 Section compromise verdict. 1984).3 constitutionality of considering the When ILL BUT MENTALLY THE GUILTY I. duty “It is the of legislative action: PER SE UNCON- IS NOT VERDICT satis- uphold statutes unless it is Court STITUTIONAL. doubt that the beyond all reasonable fied Process. A. Due outside the Constitution Legislature went challenged legislation.” enacting of the verdict argues Appellant Ball, 176, 178, N.M. 718 P.2d 104 of per se violative mentally guilty but 2. Section 1. Section 31-9-3 As used verdict A. A was that such instead havior which substantial relieved to law duct and act or did paired that of evidence, mission commission could E. When a extent doing shall that he was fendant the time sion of D. When able doubt that (2) (1) insanity, insanity, guilty but evidence the commission of act. the defendant beyond suffering separately instruct was was not person court or understand ^[******] that he did upon a criminal offense of a verdict 31-9-4 form in this of criminal committed of the of the commission may shall a verdict not know that a defendant mentally which prevent himself from disorder person’s the court may impose defendant has of the offense. mentally ill at that time. a reasonable who afflicted a be found legally of the from a mental provide the section, “mentally court, defendant who states: states offense; and the defendant: court finds could be at the time the offense and ill at the was requires responsibility ill if after judgment, not know insane where may offense has asserted a guilty thought, person offense his act was pertinent was not insane find the doubt that asserted a imposed may or not at the time beyond a reason- warranted legally time of the com- sentence but charged; of the commis- the offense finding but not has been hearing with a illness is what he was at the that a charged and mood or be returned mentally ill” committing for guilty, part: which im- defendant insane wrong pursuant means a his con- defense defense time of the de- upon ill and special by the of the all of con- but be- his ill. or Amicus 4. 3. Eleven guilty Ann. Annotation, Baker, A.L.R.4th 40 unconstitutional plied. Ill.Rev.Stat. Ga.Code Ann. tionality lenges have been §§ enacted Code S.D.Codified Laws 422 Mich. Cons.Stat.Ann. § olina, 440 have been of the same tionality P.2d 651 (1989); (1985); Kentucky, (Law.Co-op.Cum.Supp.1990); South 1990). 120-.150 victed of the same vide department, nature, extent, is sentenced of mental counseling 9727 (1988 Supp.1990); 12.47.030-.055 N.E.2d 1109 deems §§ § Ann. tit. see S.C.Code defendant’s 440 N.W.2d psychiatric, (1983 768.36 Indiana, legislation providing & 77-13-1, states in addition (Alaska presented (1990); Michigan, mentally upheld. necessary. many of these ch. illness; provided “Guilty Laws Ann. constitutional and (1989). & to the § (1982); Pennsylvania, 375 N.W.2d 38, paras. 11, statute, verdict, yet § continuance and treatment for the defendant (Ind.1982); People v. 17-7-131 see Ind.Code Ct.App.1985); and unconstitutional Cum.Supp.1990); South department mental illness and shall brought -16a-l see Ann. (1990); But § ill: See, e.g., argument on the constitu- psychological custody of the corrections offense without a 408 amicus Ky.Rev.Stat.Ann. (S.D.1989); Mentally and §§ Alaska, §§ contending 42 to -6 (1987); Georgia, against to New Mexico have 23A-7-2, (1990); arguments. 17-24-20 297 Delaware, Utah, jurisdictions, chal- all of that if Hart v. have raised Pa.Cons.Stat.Ann. shall examine the see § see Taylor III" (1990 see Utah Code 35-36-2-3, treatment of -4, the constitu- a verdict of Mich.Comp. Alaska Stat. the statutes Illinois, a defendant Statutes, Dakota, it is -27-38 and other see 18 Pa. State, generally 1005-2-6 see Del. & Ramsey, -30, §§ State v. finding per Supp. many 504.- Car- pro- -70 702 see see ap- see -5 as se - scrutinizing guilt consti from issues of inno- “In attention statute, tutionality presume by inserting we cence into irrelevant issues Legislature performed duty its accompanying deliberations with the risk of kept the bounds fixed the Consti within impermissible compromise.

tution.” Id. at 718 P.2d at 692. “[W]e legit- agree We do not that there are no wisdom, poli inquire into refuse to ‘the purposes imate or rational for the statute. legisla cy justness of an act of the legislature legitimately in- could have ” Bunch, ture.’ McGeekan tended the verdict to reduce the number of (1975) (quoting 540 P.2d improper insanity acquittals or inaccurate Revenue, 74 Gruschus v. Bureau jurors give acquit- and to an alternative to (1965)). P.2d play tal when mental illness is a believed part The in an offense. verdict clarifies for Legitimate Purpose. 1. jury the the distinction a defen- between authorizing the verdict statute insanity guilty by dant who is not mentally challenged guilty of but ill is on mentally yet is and one who not criminal- legit the basis that it does not advance a and, therefore, ly criminally insane liable. designed purpose imate state and is not may The verdict also assist in identification reasonably remedy prev the it evils psychiat- of convicted defendants in need of ent.5 just sentencing ric treatment and facilitate It that the statute is asserted because mentally of ill defendants. See United treatment,6 state’s does not mandate the Lane, States ex rel. 815 F.2d Weismiller mentally purpose distinguish ill defen- —to Cir.1987); (7th generally guilty ones that the criminal- dants from so Annotation, “Guilty Mentally III” But ly yet mentally ill will be treat- responsible Statutes, 71 A.L.R.4th 18§ legitimate. People v. De- ed—is not See (summarizing purposes of stat- various N.W.2d laughter, Mich.App. utes). decree Pursuant the consent By jury’s on focussing the attention the Apodaca, 77-721- entered Duran v. No. culpability, question legal of the statute (D.N.M. 14, 1980), and July C Estelle v. the will increases the likelihood that Gamble, 429 97 S.Ct. the return a verdict accordance with (1976), state must make the L.Ed.2d it is a appropriate legal standards —and all necessary psychiatric care to available re- legitimate juries to see state interest defendants, guilty whether convicted that accord with the law. turn verdicts It simply guilty. ill or is further mentally legitimate interest The state has a that, suggested evaluates because according having juries cases decide as it existed mental state defendant’s legislature could have the law. The well rather crime was committed at the time the many be- that defendants were trial, believed imprecise it is an measure than as of insani- ing guilty by reason of found not of who needs treatment. they satisfy ty though did even remaining pur- It that the is concluded legal for the defense. standard compro- pose the statute —to induce behind lay difficulty juries is that are likeli- thereby mise reduce the verdicts and complicated to some presented with find a defendant not hood that a will conflicting of ren- notions what extent impermissi- insanity of guilty reason —is legal, psychiat- person “insane” in ders a Accordingly, asserted to ble. ric, terms. The common sense guilty of the verdict believe de- are [guilty statutes keeping ill] de- guarantees treatment while signed jury applies the Moreover, to insure that the it is off the streets. fendant insanity, underscor- legal definition suggested that consideration might “mentally ill” person ill verdict deflects (providing as is for treatment appellant argued for 6. 31-9-4 § nor has amicus Neither necessary). scrutiny. deemed heightened standard terms, existing gradations in common of the law—the tradi- “crazy” in clinical terms, yet legally guilty by insane. and not As tional verdicts sense noted, Supreme spectrum has Michigan insanity Court reason cover Legis- power within the responsibility. “It is well She then concludes criminal attempt to it sees as and, lature to cure what clarify in- that the verdict does a misuse of law.” deed, degrees concept of confuses the question responsibility compro- it is and leads to beyond We believe already state could instruct a verdicts. have deter- mise We acquit on legislature legitimately cannot the basis mined that legal test for has unless could determine that the traditional verdict objec- met. We see no additional been required clarification so that a can be raised because tion which that the classifica- jury could understand instruc- to formalize these state chooses with encompasses tion of those men- providing separate verdict tions illness, criminally but not those who are tal form. at the the crime is committed. insane time degree Weismiller, (quoting F.2d Peo verdict inserted at 1112 Whether ple Ramsey, Mich. 375 confusion to extent that defendant was (1985) omitted); question, citation N.W.2d denied a fair trial is a different Taylor v. 440 N.E.2d although nega- also nonetheless one we answer mentally (Ind.1982) ill (guilty but tively. securing state verdict serves interest argues Appellant that verdict of convictions); Trill, just Commonwealth mentally deprives ill guilty but defendants A.2d 1106 Pa.Super. the jury, of a fair trial because it misleads (verdict wrongful relief from eliminates naturally has which believes verdict legislative liability criminal rational —a consequences, deflects its attention denied, 603, 562 goal), 522 Pa. A.2d alloc. questions guilt and innocence. In from Baker, N.W.2d view, juries that appellant’s believe a ver- (S.D.1989) distinguished (insanity reason of guilty dict of not requirement illness mental based on from release, results immediate whereas a intent creat finding knowledge or of a ill guilty mentally but verdict results responsibility; verdict of ing criminal protects public setting in a that treatment mentally requires guilty different but safety. Appellant asserts that this “com- jury a predicate and allows better factual juries lures into a conviction un- promise” understanding spectrum of the of criminal We, course, warranted the facts. law). recognized by responsibility unquestionable that a find it criminal de- legitimacy of the The reasonableness and trial. fendant is entitled to a fair not dimin- purpose and means are state’s verdict, however, mentally ill guilty but defendants all convicted ished because implicate right. does not that given necessary psychiatric care must be different treat- The statute authorizes guilty guilty but mental- found or whether guilty ment for a defendant found but men- only provides ly ill and because statute ill, therefore, jury tally makes a verdict, necessary. The deemed for care as the status of the de- signal to decision affects allowing jury while 31-9-4, pertaining sen- department of fendant. Section sentencing court and the finding guilty hav- a but men- judgment tencing upon in its after corrections presented ill, the de- a permissive. the facts It states that tally considered evaluation, upon person impose any is a need sentence may fendant “court diagnosis legal determi- pursu- but a imposed not a clinical which could be guilt. added.) nation (Emphasis Because ant to law.” discretion of the legislature left to the Trial. a Fair Defendant Received of whether trial court determination sentence legally-mandated argues guilty that the but straightforward guilty verdict should be nothing to the mentally ill verdict adds applied guilty mentally present but con- if the defendant has been found defendant, victed we believe that the mentally ill. For a defendant to ill verdict is more than a insane, jury determined must find a distinction.7 because, lack of responsibility as a illness, result the defendant did not jury is not questions sent to consider know the nature and quality of the act and guilt, innocence, responsi- and criminal wrong, that the act was or the defendant bility in a standardless vacuum. Section capable was not preventing 31-9-3(A) herself from defines ill as: committing the act. To be found thought, substantial disorder of mood mentally ill, hand, on the other person behavior which afflicted a defendant, must determine that al- the time of the commission of the offense though suffering impaired judgment, from impaired person’s which judg- did not meet the additional ment, legal criteria for but not to the extent that he did insanity. doing know what he was or under- stand the of his act or did that, We hold when the is properly wrong know that his act was or could apprised legal of the standards to deter- prevent committing himself from illness, mine and mental act. to a infringed. fair trial is not The role of governing The standards the defense of is to determine facts. The insanity differ: only asked to determine whether as a mat- order for a to find an accused [I]n ter of fact the defendant was blameworthy acts, for his it must be sat- ill, charged crime or not isfied that: guilty by insanity, op- as those accused, as a result of disease of tions are defined for them. There are valid * * * (a) the mind did not know definitions, distinctions between the two quality (b) nature and of the act or did provided and the is with standards and (c) wrong not know that it was or was guidance properly to appropriate draw the incapable preventing himself from legal presented conclusions from the facts committing it. to it. 607, 609, Dorsey, State v. 93 N.M. 603 P.2d legislature We conclude pursued that the 717, (1979) (quoting White, 719 State v. 58 legitimate goals enacting the statute al- 324, 330, 727, (1954)).8 270 P.2d 731 lowing guilty mentally ill verdict legal insanity definition of is distinct reasonably designed and that the statute is through from a medical le- definition— goal; to achieve that it neither inserts con- definition, gal the law “seeks to assess encourages fusion compromise nor ver- accountability,” psychiatry’s pur- whereas dicts, impinge upon and it does not a defen- pose diagnose “is and cure mental ill- dant’s to a fair trial. nesses.” Id.9 Comparison of the definitions of Equal B. Protection. clearly and mental illness illustrates the difference and guilty demonstrates that the contends that mentally has found an element ill equal pro- of causation when it verdict violates the legally finds a defendant insane that is not tection clauses of the United States not, however, 7. We do believe the constitution- Iant would have us believe that ality of the statute turns on this. determining mentally reasonably she was ill be- lieved it determined she was in need treat- legal presented 8. These distinctions are verdict, however, ment. The indicated the 1986, jury through SCRA -5103. legally she was mental- determination ill, ly yet Neither the nor the insane. important. Although 9. This distinction is qualified clinically court is wheth- determine provides law for treatment of those convicted of mentally er a defendant treatment, is ill or in need of physical crimes adies, suffer from who or mental mal- determined, legal responsibility and the statute leaves that decision to when is legal, applied. Appel- department. not medical standards are the corrections 708 law, statutes, See U.S. our case instruc- Mexico Constitutions.

New Const, V, XIV; II, N.M.Const. art. amends. tions. Dearborn Distrib. Co. 14, 18; Old §§ legislative passes classification Corp., 299 U.S. Seagram-Distillers 57 equal protection muster. The classification (1936). 109 She asserts 81 L.Ed. S.Ct. rationally legitimate related to a inter is those no difference between there is only mentally ill est —it allows those who insanity and guilty by reason of found not ap capacity to form the did not have mentally ill—under guilty but those found criminal propriate criminal intent avoid verdicts, seriously is both providing for criminal liabili liability while seriously all mental- ill. Because they possessed ty those because situated, similarly yet ly ill defendants are intent, yet who are nonetheless criminal provides that some are sent to the statute Although the classification ill. required prison treatment mentally- admittedly creates two classes subject only possible civil com- are some defendants, not similar those classes are mitment, law not create a rational does ly legislative situated and their creation classification. arbitrary. Unlike those found prohibit protection does not Equal mentally ill, those found not created classifications that are legislatively possess do Martinez v. rationally 108 based. In culpability or a criminal state of mind. (1989).10 382, 383, 772 P.2d dividuals classified as general legislation rule is that will be “The distinguishing possess characteristics if drawn sustained the classification relevant to interests the state are legitimate rationally related to statute Cleburne, affect. properly can City v. Cle Cleburne state interest.” 3255; Massachu U.S. at 105 S.Ct. at Center, Inc., Living burne U.S. Murgia, setts Bd. Retirement v. 87 L.Ed.2d 313 S.Ct. 307, 313, 2562, 2566-67, Richardson, also Frontiero v. words, In other L.Ed.2d 677, 683, 93 S.Ct. 411 U.S. groups of men characteristics the two (1973) (legislation is constitu L.Ed.2d 583 tally justify ill defendants different treat “ ‘patently arbitrary’ tional unless pursuit legit by the state in its a ment legit relationship to a no rational bears Baker, 440 See goal. N.W.2d at 289 imate interest”); Richard governmental imate mentally a (guilty ill statute based on but Restaurant, Inc., Carnegie Library son v. person a is valid distinction between who 693, 1153, 688, 763 P.2d 1158 107 N.M. mentally is legally person insane and who (1988) statutory (“Only when a classifica impaired). support is of rational tion so devoid interest, governmental no so serves valid Unusual Punishment. Cruel and C. caprice, it to mere will amounts under the rational basis struck down her Appellant why asserts two reasons test.”). require, Equal protection does cruel and unusual to be free from however, similarly persons all situ “that guaranteed eighth punishment by the Cleburne, treated alike.” ated should be amendments of the United and fourteenth 439, 105 S.Ct. at 3254. 473 U.S. at II, Constitution and article Sections States 14 18 of the Mexico Constitution and New pun The state has an interest by guilty the but is violated use the ishing guilty defendants found (1) ill it is and un- mentally verdict: cruel who, ill, although mentally crimi are acts criminally punishment to hold her usual by culpable. guilty not nally Those found mentally responsible she found when was culpa insanity criminally are not reason and, there- in Section 31-9-3 as defined criminally punished. and should not be ble her fore, capacity the to conform lacked is The distinction between two classes law; requirements of the and to the by actions the standards articulated determined heightened tiny. argue Appellant scru- does not 709 1683, (1986); goals of and S.Ct. L.Ed.2d legitimate deterrence 27 Ham Carolina, served. South 409 U.S. treatment are not v. 35 L.Ed.2d We hold that not Appellant guilty was not found was to an on she not entitled instruction insanity; reason determined consequences; accordingly, voir dire also possessed capacity she to conform her properly was restricted. despite legal requirements her actions mental illness. is not cruel and unusual It asserts that when not impose degree for first a life sentence guilty insanity guilty reason but criminally responsible murder on a defen mentally ill verdicts were submitted Escamilla, 107 dant. See State v. explanaron conse (1988); 760 P.2d Barrett see also verdicts, quences guilty of the two (Alaska Ct.App. 772 P.2d mentally appeal verdict so much more 1989) (not punishment cruel unusual foregone that it is In conclusion. her guilty mentally ill defendant because guilty believe view will conduct, illness). punished for his ill verdict differs from a Moreover, supra in Subsec as discussed protect society by verdict and will (A)(2), tion the statute allows court keeping the defendant incarcerated while ill defen discretion to sentence treatment, providing hospi most likely dant to a different sentence than that oth tal, whereas the authorized, indicating legisla erwise insanity outright verdict result in freed will ture’s intent not inflict cruel inhu om.11 punishment on the ill. man given adequate instructions The verdict indicated the de set ly forth the standards it was to use to criminally termination that was appellant evaluate whether was

responsible. illness, appre her she Despite by reason of or was wrongfulness ciated her actions Mexico, mentally ill. In New instructions ability possessed the to conform her con regarding consequences of a verdict law; duct to the thus deterrence is an given. generally are not ex rel. See State People appropriate consideration. Madrid, 679 P.2d Schiff 821 Crews, Ill.2d 119 Ill.Dec. 1986,14-6006 (jury’s SCRA role (1988). Once N.E.2d 1167 a defendant is facts). fact, determine convicted, provides for evalua statute expressly not to consider the admonished necessary. tion and treatment as deemed its verdict. SCRA required. is not More 14-6007. An instruction on conse quences guilty by of a of not reason Accordingly, hold that 31-9- we Sections present would an irrelevant is per -4 se of either 3 and are not violative Chambers, jury. State v. 84 sue state or the federal constitution. our 309, (1972); 502 P.2d 999 State v. N.M. 634, 1093, Williams, 97 642 P.2d cert. THE IS NOT UNCONSTI- N.M. II. STATUTE 845, 101, denied, 459 103 74 TUTIONAL AS APPLIED. U.S. S.Ct. (1982); 94 N.M. Lujan, L.Ed.2d 91 State v. Appellant on argues that restriction voir 232, Luna, 608 P.2d 1114 State v. jury and instruct the on the dire failure to N.M. P.2d 183 93 606 consequences deprived Appellant requests Cham- mentally ill verdicts her a fair we overrule Const, holding line of cases that an process. and of due bers that trial See U.S. XIV; II, of a VI, consequences art. on ver- N.M.Const. instruction amends. 14, 18; insanity is of not Murray, Turner v. 476 U.S. dict §§ provide appropriate partment care as her a does not errs in assertion that verdict, jury required, in leading should be collat- while the solution found treatment, only proceedings. that the We cannot determine it will insures eral believe result applied based on is as barest minimum of treatment at whim statute unconstitutional speculation. department of If that de- such corrections.

710 that asserting any the advent relevant circumstance could improper, that mentally ill has cast impose verdict it to the death ‘cause decline ” continuing validity of that doubt on the P.2d penalty.' Id. at 789 at 606 holding opinion in and that our State Kemp, (quoting McCleskey v. Henderson, 655, 789 P.2d 603 109 N.M. 1756, 1773, L.Ed.2d (1990), jury’s misconcep- a has clarified that Furthermore, (1987)). unique setting in the regarding consequences of a verdict tions case, is penalty a called death to the extent that may affect deliberations on, guilt inno- only not to determine process requires instructions. due curative cence, appropri- to determine the but also authority from Appellant also relies on oth- ate sentence. holding instructions on jurisdictions er that holding decline to extend the We is consequences under these circumstances case at bar. This Henderson to the case Shickles, See, e.g., a rule. State better special protection nec- require does not 1988). (Utah P.2d 291 essary when a death sentence is at issue. disagree. guilty by reason of A not We that it is cautioned should not does not result automati- consequences; represents this consider cally in the confinement—the defendant’s longstanding policy that can be pursue attorney required district not presented perform trusted to task as proceedings. NMSA civil commitment imposed by within the confines the law. (Repl.Pamp.1989). -12 43-1-11 to §§ responsibili- province it Because proceedings commitment are discre- Civil only ty to determine the facts in tionary. depends upon evalu- Commitment law, applicable the context of the we hold at the ation of the defendant’s mental state not be instructed it should on proceedings and is not time consequences of its verdict. As we stated does not period definite of time. The law confinement. Under at 608 P.2d 1116: Lujan, mandate treatment or at circumstances, apparent it not these jury is not to concern themselves consequences an instruction as to the consequences of their with verdict. de- concern that a would alleviate patiently dispassionately They are to Although may soon be released.12 fendant at a ver- weigh the evidence and arrive accurate, contended, may given dict in accordance with the law as guilty by defendants found reason fact To to them the court. instruct them insanity always be confined institu- will on the of their verdict tionally, require civil com- the law does would add an element to their delibera- mitment, to that effect and an instruction proper. is not tions that inaccurate. would be we hold that the court Because case, Henderson, penalty we death give an instruction on con properly did informed that a should be determined sequences, properly the court also we find meaning life sentence. That of a about question on the con precluded voir dire heightened based on the scru- decision was “ apply sequences. We examine issue qualitative differ- 'the tiny required ing an abuse of discretion standard. See punish- from all other of death ence ” Espinosa, ments,’ 789 P.2d 109 N.M. at (1988). The P.2d court did Mississippi, 472 U.S. (quoting Caldwell v. refusing in dire on its discretion voir abuse L.Ed.2d 320, 329, 105 beyond scope delibera an issue (1985)), that the state that demanded tions. limit the sentencer’s consideration “cannot sarily require further institutionalization —the out concern.

12. The facts of this case bear this Neely psychosis had Neely’s was controllable. Testimony extreme indicated that condition aberrational, relatively not been a functional and had been act was time of the criminal society apparently previously, danger to and by the of extreme emotional caused confluence type disease that from the These does not suffer to take medication. distress and failure not be stabilized. not neces- could problems were resolvable and would

7H noting ILL rule every COMMUNICATION WITH JU- that the does not “cover III. in judge ROR IN DEFENDANT’S ABSENCE. situation which a trial communi- jurors cates with about a matter that is not Appellant relies on State v. Wil at issue in the trial.” 109 N.M. at son, 109 N.M. 787 P.2d 821 P.2d at 826. Hovey v. 104 N.M. 726 P.2d 344 (1986), Wilson, McDuffie, equated and 106 N.M. In this court with the (Ct.App.1987), argue Hovey 739 P.2d 989 to error in reversible two communica- process requires juror, that due reversal because tions between the court and the juror, pox, previous with chicken called the where the court had three warn- ings juror; court and asked to be excused. It is not of the need to meet with the it sponte juror; clear from the record whether the court sua decided to dismiss the actually spoke juror; with the the record failed to allow counsel or defendant to be only juror present meeting; neglected shows that the informed some at the and it to Analysis Hovey one at the court of her illness.13 The make a record. clarifies prongs analysis: record also shows that the court did not that there are two error, (2) juror excuse the until it discussed the mat determination of if and there is counsel, error, agreed analysis dismis ter with who with whether the state has however, Appellant, present presumption prejudice. sal. was not rebutted meeting prong at the latter and now asserts error The first is not met unless an im- right proper prong because counsel cannot waive her communication occurs. That case, present. Hovey, 104 N.M. at has not been met in the instant where housekeep- P.2d at 348. the communication concerned a matter, where, Wilson, unlike improper for the trial court to “[I]t prior had court no notice communica- communication with the con- have judge every A tion. does risk error court cerning subject matter case, in phone. time he answers a As this proceedings except open court and juror say she is ill the court if a calls to his counsel.” presence of the accused and steps prevent cannot take the communi- 104 N.M. at 726 P.2d at 346 Hovey, cation, not error more. there is without added). presumption prej- “A (emphasis juror The court did not act to dismiss the improper such an udice arises whenever counsel, consulting and the court occurs, communication and the State bears prudence acted when it made a record. with rebutting presumption the burden Furthermore, steps the court took to de- making showing an on the affirmative apprised had did not af- termine that defendant been record that the communication through her attorney 726 of the communication fect the verdict.” Id. at added). oppor- given had and waived (emphasis been P.2d at tunity present. Defendant’s counsel to be gloss unclear added a somewhat Wilson had been asked whether the matter was Hovey. to the law articulated Wil- he the defendant and an- discussed with son, court determined that cumulative nor affirmatively. Hovey Neither swered misconduct, error, including prosecutorial requires more. Wilson alteration of a uniform proof, failure from the record whether instruction, It is not clear the court’s failure apprised appellant of counsel had conversation with a defense a record of its make dis- juror who was oppor- problem an with to offer the defendant juror and missed, juror. another This only that of present during that conversa- tunity to be dispos- our conclusion. tion, fair trial. does not affect deprived the defendant of a question that the be- consideration is emphasized the constitutional itive court This juror should partic- fore the court—whether of a defendant’s dimension trial, of her illness—did excused because every phase of the while be ipate in assumes, however, juror. that the 13. Our discussion personally the the matter with court did discuss

712 can, should, only does communicate with an issue in the case. Wilson

concern do so if jury error in the and can the communica- require not us to find reversible jury the the the court tion leaves with discretion every communication between or it should fur- is not whether not deliberate juror and a when the communication jury The can the case. We do ther. court inform that relevant to substance of deliberations, further may in consider repudiate the dictum Wilson that it must consider practice to inform but not further effect that the better soon as deliberations. counsel and defendant as defense practicable of the commu- of the substance V. DOUBLE JEOPARDY. 546, 787 P.2d at nication. See 109 N.M. at appears This to have been done. We 825. Appellant asserts that the court furthermore, emphasize, that did Wilson imposing on erred in consecutive sentences “presumption limit way not in first-degree murder conviction and on Hovey, prejudice” analysis articulated in attempted the three counts of murder be 670, 347, 726 to 104 N.M. at P.2d prove same used cause the evidence was applied is present.14 when error merge The court did two intent. counts aggravated battery attempted with the IV.MISTRIAL AFTER DEADLOCK. murder convictions. deliberation, days several After her into the four drove car from a communication court received Light family, killing one members jury stating it was deadlocked. injuring others. two Conviction court, defen with defense counsel and counts, separate sentencing on these four proposed ask fore present, then dant against act where each the individual vic- person further deliberations would whether offense, separate does tims constituted a reaching in a verdict. Defense did assist jeopardy. not violate double See State object, foreperson, the court asked 3, (1991); Swafford, 112 N.M. 810 P.2d 1223 affirmatively. responded and she State, 111 P.2d Herron v. N.M. 805 Ap shortly its thereafter. returned (1991); Pierce, 110 624 State v. N.M. pellant the court directed the contends (1990). 408 792 P.2d deliberation, coercing thus to resume dissenting juror return presumably sole VENIRE. VI. JURY verdict. points regard Appellant raises two ac- disagree. The instruction court’s We ing composition venire. First in with this court’s direction corded her argues she that she was denied McCarter, 604 P.2d 93 composed registration of voter a venire (1980): 1242, 1244 required records driver’s license (Cum.Supp. NMSA Section 38-5-3 when a statement is sub- realize that We 1990). this State ex jury during We resolved issue to the court mitted Serna, 780 concerning inability rel. 109 Stratton deliberations (1989), verdict, together P.2d observed 1148 wherein we arrive at plain language of the statute indicated numerical divi- a disclosure with pool expanded jury would sion, with that the venire judge must communicate days gen- the next ninety take effect after judge fashion. The some (no juror communication with research error court conclusion is borne out our Our jurisdic health); regarding issue in other 882 the treatment Dixon v. P.2d into tions. See, Taylor, Annotation, e.g., (Alaska 1980); Preju United States v. 562 F.2d generally (2d Cir.) (communication with Case, Effect, in Communica dicial Criminal inability juror regarding possible to serve for or Attendants tion Between Court Officials error; personal concur is harmless reasons Annotation, Jurors, 41 A.L.R.2d by Judge concluded there was no rence Timbers Communications Postretirement Out-of-Court did not relate because the communication error to Judge Trial as Grounds Between Jurors and denied, merits), cert. case’s Case, 43 in Criminal New Trial Reversal (1977). L.Ed.2d 1083 United § A.L.R.4th (10th Cir.1976) Hall, F.2d States v. following Ap- SOSA, C.J., eral election FRANCHINI, J., its enactment. concur. pellant’s place expand- trial took before the RANSOM, J., specially concurs. pool ed took effect. Section 38-5-3 was not violated. MONTGOMERY,J., part, concurs in in part. dissents

Second, appellant asserts that her RANSOM, (specially Justice concurring). jury comprised to a of a fair cross community section of the was denied be specially I concur. While I am in accord only registration cause voter lists were expressed with much of the sentiment Const, compile used to the venire. See U.S. Montgomery dissent, Justice in his I cannot Const, VI; II, 14, 18; amend. art. §§ conclude with him that the but men- Louisiana, Taylor v. 419 U.S. 95 S.Ct. tally ill verdict is little more than a cha- 42 L.Ed.2d Lopez, I my rade. confess that initial reaction to (Ct.App.1981). 631 P.2d 1324 this case was that such verdict indeed was Appellant presented report to the court a subterfuge that surreptitiously deprived purporting to establish that the venire defendant of her defense. through obtained registration voter lists Upon reflection, however, much I now be- underrepresented hispanic population. lieve there is a relationship substantial be- tween that verdict form and prima establish a facie violation the interest of [T]o justice in that requirement, the verdict form fair-cross-section does aid the (1) meaningfully to focus group defendant must show that the on whether the mental alleged disease at issue does or to be excluded is a “distinctive” does not (2) guilty. warrant a verdict of group community; in the representation group in venires against To assure the misuse of such juries from which are selected is not fair form, I strongly urge nonetheless in reasonable relation to the number by appropriate instructions the persons community; of such in the any misconception disabused of (3) underrepresentation that this is due guilty ill verdict has conse- systematic group exclusion of the in quences different than a verdict. jury-selection process. Missouri, 357, 364, MONTGOMERY, Duren v. (concurring Justice in 58 L.Ed.2d (quot- part, dissenting part). in Lopez, ed 96 N.M. at 631 P.2d at I concur through with Parts III VII of 1327). However, opinion. the Court’s on the crit- prima has not made out a facie ical issue in this constitutionality case—the analysis surnames, An hispanic case. of the ill verdict and more, adequate is not an integrally question indicator related of whether hispanic whether an individual is of de- should have been instructed on the Moreover, presented scent. the data of that verdict and the conse- that, quences court does not if guilty by establish there is of a verdict of not reason underrepresentation, sys- it resulted from dissent. —I hispanics tematic exclusion of from voter Basically, I come have to a conclusion registration rolls. opposite majority from that reached 1(A)(2) view, opinion. my Part of its VII. CUMULATIVE ERROR. verdict distorts fact-finding process jury, result- error, Because we have not found we ing in a trial which is not fair and which find no merit to the assertion of cumulative process. therefore violates due It does this error. just ways majority says it does foregoing reasons, For the affirm the we jurors by encouraging not: It misleads the judgment of the district court. significant them to think that there is some straight “guilty” IT IS SO ORDERED. difference between ver- Process, Due 92 Yale L.J. 475 “guilty and and a verdict but diet has ill,” is difference. It As the American Bar Association not when there no such by ed, ill compromise seducing guilty induces verdicts but verdict settling ground on a middle jurors into a at all. Rather it is proper is not guilty, in fact guilty and not when between dispositional a mechanism transferred to ground: The defendant there is no middle phase guilt determination no guilty ill receives found hybrid process. criminal The nature psychiatric evalua- greater entitlement to is the fact the verdict demonstrated already made and treatment than tion ill- a determination of mental jury, The or at to other inmates. available charged a at the time of offense ness inevitably jurors, believe least some will responsibility to or relevant not criminal mentally ill verdict will a per- culpability but to whether accused receiving either in the defendant’s result they treatment after might sons receive treatment; we fail to leniency or but since * * * * have been sentenced actually re- that such ensure ABA Criminal Mental Health Justice greater a more lenient sentence ceives Standards, commentary, 7-6.10 standard per- as other opportunities for treatment (1988) (emphasis original). in offense, at 393-94 we of the same sons convicted in with the “palter ... a double sense” majority opinion points pur- to three The “keep We word and the defendant: legislature poses that it finds the could ear, it to and break promise [their] enacting our have intended hope.”1 [their] mentally ill statutes:2 To reduce the num- why mental These reasons insanity ac- improper ber of or inaccurate unfair, basically as well as ly ill verdict is quittals; clarify for the the distinc- policy standpoint, have from a unsound who is not tion between defendant others, explored and I thoroughly been and one who men- existing weight of add to the shall not insane; yet criminally and tally People subject. v. Ram paper on identifying convicted defendants assist 500, 520-53, 422 Mich. 375 N.W.2d sey, and psychiatric in need of treatment facili- J., (1985) (Levin, dissenting); see sentencing mentally defen- just tate Fentiman, But “Guilty Mental generally majority, I last Unlike the find the dants.3 Guilty, 26 The Real Verdict is ly III”: illegitimate objectives these McGraw, Farthing- (1985); B.C.L.Rev. 601 wholly speculative and devoid the first Keilitz, “Guilty But Men Capowich & The I sec- Though concede that the foundation. Current tally III” Plea and Verdict: confusion and objective reducing jury ond — Knowledge, 30 Vill.L.Rev. 117 State of graduations in assisting toit understand Perlin, The (1985); Rodriguez, LeWinn & responsibility degrees —is Siege: Legisla Under Insanity Defense disagree legislative goal, with the proper I Rejoinders, 14 Legal tive Assaults goal to this majority deference the accords (1983); Slobogin, The Rutgers L.J. 397 countervail- face of the defendant’s Mentally Guilty III Verdict: An Idea But in a fair trial. interest Come, 53 Not Have Time Should Whose nothing objective, has (1985); first Stelzner & As Geo.Wash.L.Rev. sug- or even to us to Piatt, III been cited establish Guilty Mentally But Verdict gest by enacting Sections 31-9-3 Mexico, 13 N.M.L.Rev. 99 in New and Plea attempting to legislature Comment, our was Guilty But 31-9-4 (1983); Indiana’s improper or inaccu- “reduce number Blueprint to Be Mentally III Statute: There is no evi- (1982); insanity acquittals.” rate 57 Ind.L.J. Jury, guile the there has that in New Mexico dence at all Note, Mentally III Guilty But Verdict V, Macbeth, 3. Identifying of treatment in need Shakespeare, defendants act scene vii. W. 1. sentencing facilitating just together com purpose possible dispositional prise a 31-9-3, (Repl.Pamp.1984). -4 §§ NMSA statutes. Madrid, 101 See, rel. e.g., State ex significant number of been Schiff v. P.2d 821 United improper or inaccu- N.M. much less acquittals, (D.C.Cir. Patrick, F.2d 1150 Indeed, only study cited States in the rate ones. 1974) jury to make recommen (permitting of discussing the incidence to us held revers Mexico, psychiatric treatment authors dation in New the acquittals error); 422 Mich. at Ramsey, also currently ible see “Although hard data is state: 550-51, (guilty men Mexico, at 320 professionals in N.W.2d in New unavailable corrections, tally ill inconsistent with rule health, verdict the mental confine deliberations to issue jurors should agree that few defendants justice fields and should not consid guilt the or innocence successfully raised New Mexico have disposition of defendant after potential er insanity] defense.” reason [not verdict). Piatt, 113. also supra & at Stelzner Health Mental ABA Criminal Justice sup- problem with this third The second introduction, Standards, at 323 Part VI it is frus- posed legislative objective is that the men- (“The suggests that best evidence holding majority’s own trated the nonresponsibility [insanity] defense tal consequences of instructing jury on the the felony percent of all in less than raised improper. mentally a verdict is successful in the United States and cases recognize legitimacy the If we are to those.”). a fourth of in about objective, should be consistent and this we Thus, guilty but men- I conclude that the jury inform the as to the it, is, describe tally choice, ill verdict as the amici if it finds the defendant its If problem.” the “a solution in search of ill, guilty but a verdict of between with the num- legislature were concerned guilty by reason of ill and of not a verdict regard acquittals, without ber insanity. recognize I the well-settled rule legisla- accuracy, the propriety their or law, above, to jury the is not to noted directly and seek to might move more ture consequences of its the concern itself with altogether, insanity defense abolish the verdict; is or should be I believe there confusing and mis- injecting the avowedly the verdict is exception an when verdict leading device of an alternative adopted in effect. We have dispositional states, proper (which, ABA is not a as the jury exception is called such an when all).4 disposition upon to decide a defendant’s sentencing proceeding. State capital proffered respect to the third of With 658-59, Henderson, 789 P.2d 109 N.M. identify objectives helping to legislative — me, (1990). it is no less To 606-07 treatment psychiatric in need of convicts that, of a purpose one imperative when sentencing mentally facilitating just participate to statute is to enable or, majority also ill defendants disposition after convic- in the defendant’s it, “allowing signal phrases tion, practical instructed on the department sentencing court and it is different verdicts consequences of the per the defendant is that ... corrections instruct from. To upon called to choose are two evaluation”—there son in need of in this done jury instead—as was First, majority itself rec as the problems. with to concern itself case—that it is not disposition of the ognizes, the verdict, at the consequences of its ordinarily outside conviction after ability to rely time to on jury generally same province of —the sentencing court and “signals” to the considering the conse send has no business objective Department as an making the Corrections actually its verdict quences of statute, fun- me as strikes decisions, may legitimating and indeed it dispositional damentally unfair. jury to do so. for the error be reversible intent) Hoffman, 328 State v. with such an at- element express as to whether no view I (defendant (Minn.1982) has legislature would be constitutional. 714-15 tempt N.W.2d Korell, Mont. 690 P.2d de- Compare to assert process constitutional due legislature’s (1984) (upholding abolition of insanity). 992 insanity fense of negate except where relevant to defense Inc., fact, Broadcasting, 89 N.M. P.2d really point of what cert, (1976)), 101 N.M. telling quashed, it that de instructions needs are certainly will I found P.2d 1287 While fendant opportunities for precisely rely on have same the Ammerman doctrine would prison -4, in all other mental treatment as invalidate Sections 31-9-3 more, proba 37-43, will no less—and mates—no Maples v. 110 N.M. sentence as other bly receive the same (1990) (Montgomery, J., P.2d crime, men of the same person convicted entirely dissenting), it is me an different Likewise, put such an tally ill or not. pass statutes question whether those con- the perspective, into needs instruction muster under the Due Process stitutional finding of not to told that be of our federal constitu- state and Clauses probably will, may, tions. involuntary commitment of in the result question solely This cannot be answered hospital for to an the defendant the state examining legitimacy the of the state’s until the defen time and at least indefinite statute; adopting in the objective the na- of re is “cured.” The absence dant infringed of the defendant’s interest ture give such conse quirement that court statute, strength of by the and the instructions, failure to quential and the so interest, must considered. The ma- also be case, particular when con in a instruct in,terms not jority does set out a standard conjunction misleading in with sidered process in a case such of review due as itself, my in view effect this, although by noting in footnote 5 that on render the statutes unconstitutional argue “height- does for a defendant applied. generally and as their face scrutiny” majority standard of ened 291, Shickles, P.2d v. 760 State some implies that such toothless standard (Utah 1988). is rationality” “minimum is all that re- as majority’s Turning to the second of uphold quired to the statute’s constitution- presumed purposes of the three part, ality.6 expressly For its the State verdict, legisla- mentally ill I concede process of due articulates standard re- for clarify intended to matters tion validity test view: “The to measure up potential clear sources of confu- jury, to process under is whether a statute due case) sion,5 (more particularly in this to reasonably designed remedy statute differences between inform about legislature has the evils which the deter- degrees responsibility criminal based on health, public mined to be a threat to the resulting impairment in from differences general safety and welfare.” State illness, legitimate purpose. mental has a Inc., Optical, Lee cites Williamson v. course, in appellate courts New Of 486-88, 463-65, U.S. 75 S.Ct. contexts, Mexico, not found in other have (1955), of this support L.Ed. 563 in stan- difficult, they to invalidate a when wanted dard. dealing in a procedure with statute Williamson, course, case, is a case objective an involv- to characterize such regulation light pow- economic of a commercial impermissible of the exclusive Supreme enterprise; surprisingly, regulate in this matters of er Court to gone “The See, day said: when this procedure. e.g., State Gar- Court judicial cia, (Ct.App.) uses the Process Clause P.2d 613 Court Due 31-11-6, to strike (invalidating Fourteenth Amendment down NMSA Section laws, and in- Anaya regulatory of business in reliance on ex rel. state conditions, they may McBride, be 539 P.2d 1006 dustrial because unwise, improvident, harmony or out of (1975), and Ammerman Hubbard fair, however, However, proceed majority argued, does as I 6. To be have impairment verdict, examine the defendant’s claim of eliminating mentally ill than con- rather trial, right though it then her fair finds fusion, inject jury’s delibera- tends it into view) my right (incorrectly that that tions. impaired. has im- that interest been thought.” any, to which school particular awith disagree majority simply and I (citing, paired. inter at 464 75 S.Ct. York, or not the alia, 291 U.S. over whether v. New Nebbia (1934)). verdict, However failure to L.Ed. 940 combined with the gauging a formulations on the the various instruct economic regulation of challenge acquittal by to state reason and of an that verdict evolved may have social conditions deprived of her insanity, my it remains century, in view over this I concluded that the to a fair trial. have challenge process today that a due true more mentally ill verdict is little guilty but liberty, particularly deprivation of a state subterfuge surrep- a charade—a than deprivation is an assert- the means of when suffering defendants titiously deprives trial, by com- must assessed edly unfair insan- illness of the defense of from mental interest strength of the state’s paring the from ity. It deflects the attention challenged legislation with enacting the guilt or innocence to the extra- the issue of incursion into the depth the state’s whether, though perhaps neous issue deprived of her right not to be individual’s special receive considera- guilty, she should the fun- liberty a fair trial. Given illness. Since of her mental tion because plays in our a fair trial damental role that legislature provided has Texas, see, 385 U.S. society, e.g., Spencer consideration, since the special such 648, 653, 554, 563-64, 17 L.Ed.2d 87 S.Ct. being informed of prevented from (1966) (“[T]he Due Process Clause fact, “procedure is a this the result basic * ** fundamental elements guarantees the temptation possible which offer[s] * * * trial.”), a statute fairness in a criminal average forget man compelling right must have a impairs this proof required to convict burden of * * * short, I follow Jus- justification indeed. denies the latter due defendant [and] formulation, in a albeit Marshall’s tice Ohio, 273 U.S. process Tumey law.” context, that “as with different somewhat 437, 444, 71 L.Ed. 749 47 S.Ct. inquiry challenges, the process due other (1927). I therefore dissent. governmental inter- whether the should be any given restriction out- ests served deprivations suf-

weigh individual Wolfish, U.S. fered.” Bell v. L.Ed.2d 447 99 S.Ct. J., dissenting). I (Marshall, believe expressly artic- applied, if not been test has Supreme ulated, other, relatively recent P.2d 264 Oklahoma, 470 decisions, e.g., Ake v. Court HERRERA, Plaintiff-Appellant, Craig L. 1087,1093, 68, 78,105 84 L.Ed.2d U.S. J.) (1985) (Marshall, (indigent criminal CHURCH, psychiatric must have access CATHOLIC The ROMAN Fe, Corporation sanity at is- for defense when assistance of Santa Archdiocese accuracy sue; al., in the private interest Sole, Defendants-Appellees. et “[t]he places an proceeding of a No. 10916. is almost liberty life at risk individual’s Mexico. Appeals of New Court of Spencer, 385 uniquely compelling.”); effect of (prejudicial 87 S.Ct. at 654 July offered prior convictions where evidence of against state weighed penalty enhance recidivism). deterring purpose part I com- majority

In this case of the due much on the nature pany not so strength of the inquiry nor on the process extent, if as on the interest defendant’s

Case Details

Case Name: State v. Neely

Court Name: New Mexico Supreme Court

Date Published: Sep 20, 1991

Citation: 819 P.2d 249

Docket Number: 19085

Court Abbreviation: N.M.