 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 Opinion Number: ___________

 3 Filing Date: April 19, 2017

 4 No. 34,506

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 KELSON LEWIS,

 9         Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
11 Judith K. Nakamura, District Judge

12 Hector H. Balderas, Attorney General
13 Laura E. Horton, Assistant Attorney General
14 Santa Fe, NM

15 for Appellee

16   Bennett J. Baur, Chief Public Defender
17   Sergio Viscoli, Appellate Defender
18   B. Douglas Wood III, Assistant Appellate Defender
19   Santa Fe, NM

20 for Appellant
 1                                      OPINION

 2 SUTIN, Judge.

 3   {1}   Defendant Kelson Lewis appeals from the district court’s denial of his motion

 4 to bar retrial on the charge of criminal sexual contact of a minor (CSCM) in the third

 5 degree. Among other charges, the indictment charged Defendant with second degree

 6 CSCM in Count 1. After the close of the State’s evidence at trial, the district court

 7 granted the State’s motion to amend the CSCM charge from second degree to third

 8 degree and granted Defendant’s motion to include a jury instruction for the lesser

 9 included offense of battery. The district court declared a mistrial based on jury

10 disagreement as to Count 1, directed a verdict of acquittal on Counts 2 and 3, and

11 Defendant was found not guilty of Counts 4 and 5. Defendant asserts on appeal that

12 the district court did not appropriately determine whether the jury was hung on the

13 charge of CSCM or the lesser included battery charge. Thus, Defendant argues,

14 double jeopardy principles prevent his retrial for CSCM, and the district court erred

15 in denying his motion to bar retrial. Because we disagree that the record is ambiguous

16 regarding the district court’s inquiry into the jury deliberations and the charge upon

17 which the jury was deadlocked, we affirm.
 1 DISCUSSION

 2   {2}   Defendant asserts the district court did not properly poll the jury as to whether

 3 it was deadlocked on the charge of CSCM or the lesser included charge of battery,

 4 and therefore, Defendant received an “implied acquittal” of CSCM. Thus, Defendant

 5 argues that retrial for CSCM violates the Double Jeopardy Clauses of the State and

 6 Federal Constitutions. “We review double jeopardy claims de novo.” State v. Fielder,

 7 2005-NMCA-108, ¶ 10, 138 N.M. 244, 118 P.3d 752.

 8   {3}   The Double Jeopardy Clause “has been held to incorporate a broad and general

 9 collection of protections against several conceptually separate kinds of harm: (1) a

10 second prosecution for the same offense after acquittal, (2) a second prosecution for

11 the same offense after conviction, and (3) multiple punishments for the same

12 offense.” State v. Montoya, 2013-NMSC-020, ¶ 23, 306 P.3d 426 (internal quotation

13 marks and citation omitted). “When a defendant has been acquitted at trial he may not

14 be retried on the same offense, even if the legal rulings underlying the acquittal were

15 erroneous.” State v. Baca, 2015-NMSC-021, ¶ 34, 352 P.3d 1151 (alteration, internal

16 quotation marks, and citation omitted), cert. denied sub nom. Baca v. New Mexico,

17 ___ U.S. ___, 136 S. Ct. 255 (2015) (mem.). Where the jury is properly instructed on

18 a lesser included offense, an acquittal or a hung jury on the greater offense does not




                                               2
 1 preclude retrial on that uncharged, lesser included offense. See State v. Collier,

 2 2013-NMSC-015, ¶¶ 21-22, 301 P.3d 370.

 3   {4}   Defendant relies primarily on Rule 5-611(D) NMRA; State v. Castrillo, 1977-

 4 NMSC-059, 90 N.M. 608, 566 P.2d 1146, overruled on other grounds by State v.

 5 Wardlow, 1981-NMSC-029, 95 N.M. 585, 624 P.2d 527; and State v. Garcia, 2005-

 6 NMCA-042, 137 N.M. 315, 110 P.3d 531, to argue that he received an implied

 7 acquittal on CSCM and retrial on that charge would violate his right to be free from

 8 double jeopardy. Relying on the same authority and also on Fielder, 2005-NMCA-

 9 108, we conclude that Defendant’s retrial for CSCM does not violate double

10 jeopardy. We begin by discussing the relevant authority and then discuss in detail

11 what happened at Defendant’s trial and its legal effect on his double jeopardy rights.

12   {5}   In Castrillo, the charge of first degree murder, as well as the lesser included

13 offenses of second degree murder and voluntary manslaughter, were submitted to the

14 jury at the defendant’s first trial. 1977-NMSC-059, ¶ 1. When the jury was unable to

15 reach a verdict, the district court declared a mistrial without inquiring as to which of

16 the offenses the jury had agreed and upon which the jury was deadlocked. Id. ¶ 14.

17 The defendant was tried a second time and was found guilty of second degree murder.

18 Id. ¶ 1. The defendant appealed, arguing his second trial violated double jeopardy. Id.

19 Our Supreme Court held, though the jury was hung between acquittal and at least one


                                              3
 1 of the offenses included within the murder charge, “[t]he record [was] silent upon

 2 which, if any, of the specific included offenses the jury had agreed and upon which

 3 the jury had reached an impasse.” Id. ¶ 14. Because the record was unclear as to

 4 which of the included offenses was the basis for impasse and the district court did not

 5 conduct further inquiry to ascertain at which level of charge the jury was deadlocked,

 6 our Supreme Court reasoned that any doubt must be resolved “in favor of the liberty

 7 of the citizen.” Id. (internal quotation marks and citation omitted). Thus, our Supreme

 8 Court determined that all but the least of the lesser included charges (i.e., voluntary

 9 manslaughter) must be dismissed and that retrial of the defendant on all but the least

10 charge violated double jeopardy. Id. ¶¶ 14-15.

11   {6}   In Garcia, this Court considered whether the district court erred when it

12 inquired whether the jury was deadlocked on the greater offense but did not inquire

13 whether the jury was deadlocked on the lesser included offenses. 2005-NMCA-042,

14 ¶¶ 2, 10. The jury in Garcia was instructed on first degree murder, as well as second

15 degree murder and voluntary manslaughter as lesser included offenses. Id. ¶ 2. The

16 district court declared a mistrial after learning the jury could not reach an agreement

17 on the first degree murder count. Id. ¶ 20. Upon inquiry by the district court regarding

18 the charge of first degree murder, the foreperson informed the court that the jury was

19 unable to reach a unanimous verdict on that charge. Id. The district court did not


                                              4
 1 conduct any inquiry into the jury’s deliberations on the lesser included charges of

 2 second degree murder and manslaughter. Id. This Court determined, based on

 3 Castrillo and its progeny, the district court was not required to inquire into the jury’s

 4 deliberations regarding lesser included offenses when the district court had already

 5 determined the jury was unable to reach an agreement as to a greater offense. Garcia,

 6 2005-NMCA-042, ¶ 17. This Court noted that the holding was consistent with Rule

 7 5-611(D), which requires:

 8         If the jury has been instructed on one or more lesser included offenses,
 9         and the jury cannot unanimously agree upon any of the offenses
10         submitted, the court shall poll the jury by inquiring as to each degree of
11         the offense upon which the jury has been instructed beginning with the
12         highest degree and, in descending order, inquiring as to each lesser
13         degree until the court has determined at what level of the offense the
14         jury has disagreed. If upon a poll of the jury it is determined that the jury
15         has unanimously voted not guilty as to any degree of an offense, a
16         verdict of not guilty shall be entered for that degree and for each greater
17         degree of the offense.

18 See Garcia, 2005-NMCA-042, ¶¶ 25-27. On this basis, we concluded the district

19 court did not err in the manner in which it polled the jury, and the defendant’s retrial

20 and conviction of first degree murder did not violate double jeopardy because there

21 was a manifest necessity to declare a mistrial on that level of the charge. Id. ¶ 29.

22   {7}   Shortly after our opinion in Garcia, this Court decided Fielder in which we

23 considered whether the defendant’s retrial for second degree criminal sexual

24 penetration (CSP II) violated double jeopardy because there was no manifest

                                                5
 1 necessity to declare a mistrial on that charge. Fielder, 2005-NMCA-108, ¶¶ 1, 10, 15.

 2 The jury in Fielder was instructed on CSP II and third degree criminal sexual

 3 penetration (CSP III), among other charges. Id. ¶¶ 5-6. After learning the jury was

 4 unable to reach a verdict on CSP, the district court polled the jury regarding the

 5 numerical split of the votes for guilty and not guilty but did not determine whether

 6 the jury was deadlocked on CSP II or the lesser included offense of CSP III. Id. ¶ 8.

 7 The defendant was retried on CSP II and the lesser included charge of CSP III and

 8 was convicted of CSP III. Id. ¶ 9. Again relying on Castrillo and its progeny, this

 9 Court determined, because the district court did not inquire into the jury’s

10 deliberations on the greater offense of CSP II to determine upon which level of CSP

11 the jury disagreed, there was no manifest necessity to declare a mistrial as to that

12 offense, and the defendant’s double jeopardy rights were violated when he was retried

13 for CSP II. Fielder, 2005-NMCA-108, ¶ 15.

14   {8}   Turning to the trial in the present case, following various recesses and delays

15 on the third day of deliberations, the jury sent a note to the district court asking, “If

16 we cannot come to a unanimous decision for Count 1, do we move on to

17 discuss/decide on the lesser charge for Count 1?” The district court responded with

18 a note stating, “If you have a reasonable doubt as to guilt on Count 1 only then do you

19 move to consideration of the included offense of battery. If you are not unanimous as


                                               6
 1 to Count 1 then you do not move on to the included offense of battery.” As Defendant

 2 and the State point out, it appears the transcript erroneously indicates two hours

 3 elapsed between the jury’s first question and the district court’s response.

 4 Approximately thirty minutes after the district court responded to the jury’s first note,

 5 the jury sent a second note stating, “On the count of Criminal Sexual Contact we are

 6 unable to reach a unanimous decision of guilty or not-guilty. Should we move on to

 7 the lesser charge of battery?” The district court sent a response stating, “No. Have

 8 you reached a unanimous verdict on the other counts?” Approximately thirty-five

 9 minutes later, the jury responded on the same note below the district court’s question,

10 “Yes, we have come to [a] unanimous [decision] on [C]ounts 4 and 5.” The district

11 court sent a final note to the jury asking, “Are you finished deliberating on Count 1?”

12 The jury sent its response while the district court was still on the record and

13 responded on the same piece of paper below the district court’s question, “Yes the

14 Jury is finished deliberating on Count 1.”

15   {9}   Following a request from trial counsel for Defendant, the district court and

16 parties discussed polling the jurors to determine which way each juror had decided

17 Count 1, but the district court determined the jurors could not be formally polled as

18 to whether an individual juror voted to acquit or convict. The jurors were called back

19 into the courtroom, and the district court confirmed with the foreman that “there’s no


                                               7
 1 possibility for juror agreement on Count 1[.]” While it does not appear trial counsel

 2 for Defendant requested the jury be polled immediately after trial as to whether the

 3 jury was deadlocked on the CSCM charge or the lesser included battery charge,

 4 Defendant nonetheless argued in his motion to bar retrial that the court did not

 5 properly poll the jury as to the level of the impasse.

 6   {10}   We note the jury twice asked whether it should proceed to consider the battery

 7 charge if it was unable to reach a unanimous decision on the CSCM charge, and the

 8 district court twice explicitly instructed the jury not to consider the charge of battery

 9 unless the jury was unanimous that it had reasonable doubt about Defendant’s guilt

10 of CSCM. The court’s second response indicates it understood the jury was unable

11 to reach a unanimous decision on the CSCM charge, and it sought to determine if the

12 jury was still deliberating on the other counts. Indeed, that understanding was

13 consistent with the jury’s express statement that it was “unable to reach a unanimous

14 decision” on the CSCM charge. The jury’s next response states it had reached a

15 decision on the other counts, and notably, the jury did not indicate a change in its

16 decision on Count 1 or that it had now reached a unanimous verdict on any level of

17 charge included in Count 1. The jury’s final note states it was finished with

18 deliberations on Count 1. Also notable and pointed out by the State, the

19 communications between the district court and the jury consistently refer to CSCM


                                               8
 1 as “Count 1” and battery as the “lesser charge” or “included offense.” Thus, we

 2 conclude the record of communications makes clear that the jury’s inability to agree

 3 on a finding of guilty or not guilty applied only to the CSCM aspect of Count 1.

 4   {11}   Defendant argues that we must presume the jury continued deliberations on

 5 Count 1 for approximately thirty-five minutes between when the court instructed the

 6 jury for the second time to not consider battery unless it was unanimous on

 7 Defendant’s acquittal for CSCM and the time the jury stated it was finished as to

 8 Count 1. Defendant argues the court failed to poll the jury after the conclusion of

 9 deliberations in accordance with Rule 5-611(D), which states that the court shall poll

10 the jury if the jury cannot unanimously agree upon the offenses submitted and that

11 any ambiguity resulting from the lack of formal polling should be resolved in his

12 favor.

13   {12}   We note that in Castrillo and Fielder the record was silent regarding the level

14 of charge at which the jury was hung. See Castrillo, 1977-NMSC-059, ¶ 14

15 (dismissing on double jeopardy grounds all but the least of the lesser included charges

16 when the record was unclear as to which of those offenses was the basis for the

17 impasse and the district court did not conduct further inquiry to ascertain at which

18 level of charge the jury was deadlocked); Fielder, 2005-NMCA-108, ¶ 15

19 (determining no manifest necessity existed to declare a mistrial on the charge of CSP


                                               9
 1 II because the district court did not inquire into the jury’s deliberations to determine

 2 upon which level of CSP the jury disagreed). In contrast, the record shows the jury

 3 in the present case twice indicated it was hung on the CSCM charge.

 4   {13}   Defendant asserts that the level of deadlock is ambiguous because thirty-five

 5 minutes elapsed before the conclusion of deliberations, during which the jury could

 6 have acquitted Defendant of CSCM and hung on the battery charge, however,

 7 Defendant did not develop any facts at the time the jury returned its verdicts or

 8 demonstrate there was any question regarding the level of deadlock. We note a double

 9 jeopardy challenge need not be preserved. There must, however, exist a factual basis

10 in the record for the argument. See State v. Wood, 1994-NMCA-060, ¶ 19, 117 N.M.

11 682, 875 P.2d 1113 (acknowledging double jeopardy issues may be raised at any time

12 “either before or after judgment,” but providing that “a factual basis must appear in

13 the record in order to support such claim”); see also State v. Antillon,

14 2000-NMSC-014, ¶ 6, 129 N.M. 114, 2 P.3d 315 (recognizing double jeopardy claims

15 may not be waived and citing Wood for the proposition that a double jeopardy

16 defense “must be supported by a factual basis in the record”); State v. Sanchez,

17 1996-NMCA-089, ¶ 11, 122 N.M. 280, 923 P.2d 1165 (stating that the appellate

18 courts place the burden on the party raising the double jeopardy challenge to provide

19 a sufficient record for appellate analysis of the issue).


                                              10
 1   {14}   Based on the jury’s notes stating it was hung and therefore unable to resolve

 2 the charge of CSCM and its later confirmation that it was unable to agree on Count

 3 1, the district court held that the jury was hung and obviously understood the level of

 4 charge upon which the jury was deadlocked. Moreover, Defendant also appears to

 5 have understood the jury to be deadlocked on the CSCM charge, because he only

 6 requested the jury be polled to determine individual votes for and against conviction

 7 and did not express any question about the level of the jury’s impasse or request

 8 polling at the time to resolve any ambiguity. Beyond Defendant’s argument that

 9 further deliberation may have occurred, nothing in the record suggests an

10 interpretation other than that the jury was deadlocked on the CSCM charge. Indeed,

11 the district court’s post-deliberation questioning of the foreman and the unsigned

12 verdict forms regarding Count 1 further cement the jury’s inability to agree as to

13 Count 1, and given the facts of the case, in particular, CSCM. Thus, based on the

14 extent of the record before us, we decline to speculate whether the jury later acquitted

15 Defendant of CSCM and to presume a double jeopardy violation based upon that

16 speculation when all evidence in the record indicates the contrary.

17   {15}   Defendant contends that the district court did not strictly comply with the

18 mandatory language of Rule 5-611(D) when it determined the level of deadlock

19 through notes exchanged between the jury and the district court, rather than through


                                              11
 1 a more formalized polling process employed at the time the jury delivered its verdicts

 2 on the other counts. Thus, Defendant asserts the district court’s failure to strictly

 3 adhere to the requirements of Rule 5-611(D) bars his retrial on CSCM on double

 4 jeopardy grounds. Without opining as to what would constitute an adequate

 5 “formalized polling process” as a matter of law, we hold that in this case, where the

 6 communications evidence jury disagreement on the CSCM charge, to reverse would

 7 be to read Rule 5-611(D) more technically than substantively.

 8   {16}   We hold that the notes exchanged between the jury and the district court,

 9 coupled with the verbal confirmation from the foreman that the jury was unable to

10 agree on Count 1, demonstrate the jury was deadlocked on CSCM and satisfied the

11 intent of Rule 5-611(D). To hold otherwise would be to exalt form over substance,

12 which we decline to do. See State ex rel. Children, Youth & Families Dep’t v.

13 Benjamin O., 2007-NMCA-070, ¶ 39, 141 N.M. 692, 160 P.3d 601 (“[W]e do not

14 exalt form over substance.”).

15   {17}   Because the record demonstrates the jury was deadlocked on the charge of

16 CSCM, we conclude manifest necessity existed to declare a mistrial on that charge

17 and double jeopardy did not attach. Accordingly, we affirm.

18   {18}   IT IS SO ORDERED.

19                                         __________________________________
20                                         JONATHAN B. SUTIN, Judge

                                             12
1 I CONCUR:


2 _______________________________
3 J. MILES HANISEE, Judge




                                    13
 1 GARCIA, Judge (dissenting).

 2   {19}   I respectfully dissent in this case. This is not a post-deliberation polling case.

 3 Post-deliberation polling was never conducted by the district court in this case. See

 4 Majority Op. ¶ 9. Although our decisions in Garcia and Fielder give some guidance

 5 to resolve the correct way to poll a jury, both involved post-deliberation polling of

 6 the jury, and whether, pursuant to Rule 5-611(D), the jury was correctly polled after

 7 deliberations were completed. See Garcia, 2005-NMCA-042, ¶¶ 27-29; Fielder,

 8 2005-NMCA-108, ¶¶ 8-11. In the present case, the district court made a reasonable

 9 and clear inquiry regarding a potential deadlock on Count 1 during jury deliberations

10 but failed to poll the jury after jury deliberations were concluded, as required under

11 Rule 5-611(D). Majority Op. ¶¶ 8-9. It is this failure to ever poll the jury after

12 deliberations ceased, some thirty-five minutes after the inquiry during jury

13 deliberations, that aligns this case more closely with the circumstances in Castrillo.

14 See Castrillo, 1977-NMSC-059, ¶ 14 (establishing that post-deliberation polling was

15 not done regarding the included offenses related to the murder charge). Because no

16 polling was ever done in this case, as the majority agrees is a requirement under Rule

17 5-611(D), it is not this Court’s role to change or modify the unambiguous requirement

18 in Rule 5-611(D) regarding polling the jury. See Majority Op. ¶¶ 11, 15; see also

19 State v. Montoya, 2011-NMCA-009, ¶ 8, 149 N.M. 242, 247 P.3d 1127 (recognizing


                                                14
 1 that interpretation of a Supreme Court rule is a question of law and the plain meaning

 2 rule applies where the language of the rule is “clear and unambiguous” (internal

 3 quotation marks and citation omitted)).

 4   {20}   The issue that concerns me is whether our Supreme Court simultaneously

 5 intended to create a rule requiring the polling of the jury while also providing for

 6 case-by-case exceptions to polling—where this Court then attempts to interpret

 7 questions and answers exchanged between the district court and the jury during

 8 deliberations. The majority is correct when it concludes that one reasonable

 9 interpretation of the jury deadlock issue would support its interpretation. See Majority

10 Op. ¶¶ 14, 16. The issue, however, is not about a potentially reasonable interpretation

11 that this Court can make regarding inquiries and questions occurring during jury

12 deliberations, it is about whether our Supreme Court wants us to make these

13 interpretations on a case-by-case basis.

14   {21}   Although the district court may have made a reasonable and adequate inquiry

15 regarding the basis for the jury’s alleged deadlock on Count 1, that inquiry was made

16 during the time that deliberations were still ongoing and it failed to fulfill the polling

17 requirements of Rule 5-611(D) after jury deliberations were completed. The only

18 question resolved after the jury completed its deliberations established that “there

19 [was] no possibility for juror agreement on Count 1.” A specific inquiry regarding the


                                               15
 1 primary offense of CSCM and the lesser included offense of battery was not

 2 addressed after deliberations ceased. Any confusion or ambiguity regarding possible

 3 changes in the jury’s position that may have occurred during the final thirty-five

 4 minutes of deliberation on Count 1 was not resolved by the required post-deliberation

 5 polling of the jury.

 6   {22}   If our Supreme Court mandated that the district court is required to remove any

 7 potential for confusion or ambiguity regarding which offenses a jury has deadlocked

 8 over, then post-deliberation polling under Rule 5-611(D) is not optional. If there is

 9 room for this Court to resolve confusion or ambiguity regarding which offenses a jury

10 has deadlocked over, without post-deliberation polling, then the majority has

11 adequately identified one potential exception to Rule 5-611(D). I believe that any

12 exception to the polling requirement under Rule 5-611(D) must be left to our

13 Supreme Court and should not be made by this Court. See Alexander v. Delgado,

14 1973-NMSC-030, ¶ 9, 84 N.M. 717, 507 P.2d 778 (“The general rule is that a court

15 lower in rank than the court which made the decision invoked as a precedent cannot

16 deviate therefrom and decide contrary to that precedent, irrespective of whether it

17 considers the rule laid down therein as correct or incorrect.” (internal quotation marks

18 and citation omitted)). “This [C]ourt is bound by [S]upreme [C]ourt rules.” Shain v.

19 Birnbaum, 1991-NMCA-092, ¶ 5, 112 N.M. 700, 818 P.2d 1224; see State ex rel.


                                              16
 1 Martinez v. City of Las Vegas, 2004-NMSC-009, ¶¶ 20-22, 135 N.M. 375, 89 P.3d

 2 47 (confirming that the Court of Appeals remains bound by Supreme Court precedent

 3 but is invited to explain any reservations that it may harbor, with one exception

 4 allowing for a review of uniform jury instructions that have not previously been ruled

 5 upon by the Supreme Court).

 6   {23}   As a result, I do not agree with the majority’s deviation from our Supreme

 7 Court’s rule. Polling under Rule 5-611(D) is a requirement after all jury deliberations

 8 have ceased and are completed. Any modification in the “shall poll the jury”

 9 requirement set forth in Rule 5-611(D) must be left to the discretion of our Supreme

10 Court and is not a discretionary matter that this Court should undertake on the basis

11 of inference, technicality, or substance over form.


12                                         __________________________________
13                                         TIMOTHY L. GARCIA, Judge

14 TIMOTHY L. GARCIA, Judge (dissenting).




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