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                                                                    New Mexico Compilation
                                                                  Commission, Santa Fe, NM
                                                                 '00'04- 11:46:20 2017.08.16
Certiorari Granted, June 23, 2017, No. S-1-SC-36428

        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-056

Filing Date: April 19, 2017

Docket No. 34,506

STATE OF NEW MEXICO,

        Plaintiff-Appellee,

v.

KELSON LEWIS,

        Defendant-Appellant.

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

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

for Appellee

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

for Appellant

                                          OPINION

SUTIN, Judge.

{1}      Defendant Kelson Lewis appeals from the district court’s denial of his motion to bar
retrial on the charge of criminal sexual contact of a minor (CSCM) in the third degree.
Among other charges, the indictment charged Defendant with second degree CSCM in
Count 1. After the close of the State’s evidence at trial, the district court granted the State’s

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motion to amend the CSCM charge from second degree to third degree and granted
Defendant’s motion to include a jury instruction for the lesser included offense of battery.
The district court declared a mistrial based on jury disagreement as to Count 1, directed a
verdict of acquittal on Counts 2 and 3, and Defendant was found not guilty of Counts 4 and
5. Defendant asserts on appeal that the district court did not appropriately determine whether
the jury was hung on the charge of CSCM or the lesser included battery charge. Thus,
Defendant argues, double jeopardy principles prevent his retrial for CSCM, and the district
court erred in denying his motion to bar retrial. Because we disagree that the record is
ambiguous regarding the district court’s inquiry into the jury deliberations and the charge
upon which the jury was deadlocked, we affirm.

DISCUSSION

{2}    Defendant asserts the district court did not properly poll the jury as to whether it was
deadlocked on the charge of CSCM or the lesser included charge of battery, and therefore,
Defendant received an “implied acquittal” of CSCM. Thus, Defendant argues that retrial for
CSCM violates the Double Jeopardy Clauses of the State and Federal Constitutions. “We
review double jeopardy claims de novo.” State v. Fielder, 2005-NMCA-108, ¶ 10, 138 N.M.
244, 118 P.3d 752.

{3}     The Double Jeopardy Clause “has been held to incorporate a broad and general
collection of protections against several conceptually separate kinds of harm: (1) a second
prosecution for the same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same offense.” State v.
Montoya, 2013-NMSC-020, ¶ 23, 306 P.3d 426 (internal quotation marks and citation
omitted). “When a defendant has been acquitted at trial he may not be retried on the same
offense, even if the legal rulings underlying the acquittal were erroneous.” State v. Baca,
2015-NMSC-021, ¶ 34, 352 P.3d 1151 (alteration, internal quotation marks, and citation
omitted), cert. denied sub nom. Baca v. New Mexico, ___ U.S. ___, 136 S. Ct. 255 (2015)
(mem.). Where the jury is properly instructed on a lesser included offense, an acquittal or
a hung jury on the greater offense does not preclude retrial on that uncharged, lesser included
offense. See State v. Collier, 2013-NMSC-015, ¶¶ 21-22, 301 P.3d 370.

{4}     Defendant relies primarily on Rule 5-611(D) NMRA; State v. Castrillo, 1977-
NMSC-059, 90 N.M. 608, 566 P.2d 1146, overruled on other grounds by State v. Wardlow,
1981-NMSC-029, 95 N.M. 585, 624 P.2d 527; and State v. Garcia, 2005-NMCA-042, 137
N.M. 315, 110 P.3d 531, to argue that he received an implied acquittal on CSCM and retrial
on that charge would violate his right to be free from double jeopardy. Relying on the same
authority and also on Fielder, 2005-NMCA-108, we conclude that Defendant’s retrial for
CSCM does not violate double jeopardy. We begin by discussing the relevant authority and
then discuss in detail what happened at Defendant’s trial and its legal effect on his double
jeopardy rights.

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

                                              2
of second degree murder and voluntary manslaughter, were submitted to the jury at the
defendant’s first trial. 1977-NMSC-059, ¶ 1. When the jury was unable to reach a verdict,
the district court declared a mistrial without inquiring as to which of the offenses the jury
had agreed and upon which the jury was deadlocked. Id. ¶ 14. The defendant was tried a
second time and was found guilty of second degree murder. Id. ¶ 1. The defendant appealed,
arguing his second trial violated double jeopardy. Id. Our Supreme Court held, though the
jury was hung between acquittal and at least one of the offenses included within the murder
charge, “[t]he record [was] silent upon which, if any, of the specific included offenses the
jury had agreed and upon which the jury had reached an impasse.” Id. ¶ 14. Because the
record was unclear as to which of the included offenses was the basis for impasse and the
district court did not conduct further inquiry to ascertain at which level of charge the jury
was deadlocked, our Supreme Court reasoned that any doubt must be resolved “in favor of
the liberty of the citizen.” Id. (internal quotation marks and citation omitted). Thus, our
Supreme Court determined that all but the least of the lesser included charges (i.e., voluntary
manslaughter) must be dismissed and that retrial of the defendant on all but the least charge
violated double jeopardy. Id. ¶¶ 14-15.

{6}     In Garcia, this Court considered whether the district court erred when it inquired
whether the jury was deadlocked on the greater offense but did not inquire whether the jury
was deadlocked on the lesser included offenses. 2005-NMCA-042, ¶¶ 2, 10. The jury in
Garcia was instructed on first degree murder, as well as second degree murder and voluntary
manslaughter as lesser included offenses. Id. ¶ 2. The district court declared a mistrial after
learning the jury could not reach an agreement on the first degree murder count. Id. ¶ 20.
Upon inquiry by the district court regarding the charge of first degree murder, the foreperson
informed the court that the jury was unable to reach a unanimous verdict on that charge. Id.
The district court did not conduct any inquiry into the jury’s deliberations on the lesser
included charges of second degree murder and manslaughter. Id. This Court determined,
based on Castrillo and its progeny, the district court was not required to inquire into the
jury’s deliberations regarding lesser included offenses when the district court had already
determined the jury was unable to reach an agreement as to a greater offense. Garcia, 2005-
NMCA-042, ¶ 17. This Court noted that the holding was consistent with Rule 5-611(D),
which requires:

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

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

                                              3
not err in the manner in which it polled the jury, and the defendant’s retrial and conviction
of first degree murder did not violate double jeopardy because there was a manifest necessity
to declare a mistrial on that level of the charge. Id. ¶ 29.

{7}     Shortly after our opinion in Garcia, this Court decided Fielder in which we
considered whether the defendant’s retrial for second degree criminal sexual penetration
(CSP II) violated double jeopardy because there was no manifest necessity to declare a
mistrial on that charge. Fielder, 2005-NMCA-108, ¶¶ 1, 10, 15. The jury in Fielder was
instructed on CSP II and third degree criminal sexual penetration (CSP III), among other
charges. Id. ¶¶ 5-6. After learning the jury was unable to reach a verdict on CSP, the district
court polled the jury regarding the numerical split of the votes for guilty and not guilty but
did not determine whether the jury was deadlocked on CSP II or the lesser included offense
of CSP III. Id. ¶ 8. The defendant was retried on CSP II and the lesser included charge of
CSP III and was convicted of CSP III. Id. ¶ 9. Again relying on Castrillo and its progeny,
this Court determined, because the district court did not inquire into the jury’s deliberations
on the greater offense of CSP II to determine upon which level of CSP the jury disagreed,
there was no manifest necessity to declare a mistrial as to that offense, and the defendant’s
double jeopardy rights were violated when he was retried for CSP II. Fielder, 2005-NMCA-
108, ¶ 15.

{8}      Turning to the trial in the present case, following various recesses and delays on the
third day of deliberations, the jury sent a note to the district court asking, “If we cannot come
to a unanimous decision for Count 1, do we move on to discuss/decide on the lesser charge
for Count 1?” The district court responded with a note stating, “If you have a reasonable
doubt as to guilt on Count 1 only then do you move to consideration of the included offense
of battery. If you are not unanimous as to Count 1 then you do not move on to the included
offense of battery.” As Defendant and the State point out, it appears the transcript
erroneously indicates two hours elapsed between the jury’s first question and the district
court’s response. Approximately thirty minutes after the district court responded to the jury’s
first note, the jury sent a second note stating, “On the count of Criminal Sexual Contact we
are unable to reach a unanimous decision of guilty or not-guilty. Should we move on to the
lesser charge of battery?” The district court sent a response stating, “No. Have you reached
a unanimous verdict on the other counts?” Approximately thirty-five minutes later, the jury
responded on the same note below the district court’s question, “Yes, we have come to [a]
unanimous [decision] on [C]ounts 4 and 5.” The district court sent a final note to the jury
asking, “Are you finished deliberating on Count 1?” The jury sent its response while the
district court was still on the record and responded on the same piece of paper below the
district court’s question, “Yes the Jury is finished deliberating on Count 1.”

{9}      Following a request from trial counsel for Defendant, the district court and parties
discussed polling the jurors to determine which way each juror had decided Count 1, but the
district court determined the jurors could not be formally polled as to whether an individual
juror voted to acquit or convict. The jurors were called back into the courtroom, and the
district court confirmed with the foreman that “there’s no possibility for juror agreement on

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Count 1[.]” While it does not appear trial counsel for Defendant requested the jury be polled
immediately after trial as to whether the jury was deadlocked on the CSCM charge or the
lesser included battery charge, Defendant nonetheless argued in his motion to bar retrial that
the court did not properly poll the jury as to the level of the impasse.

{10} We note the jury twice asked whether it should proceed to consider the battery charge
if it was unable to reach a unanimous decision on the CSCM charge, and the district court
twice explicitly instructed the jury not to consider the charge of battery unless the jury was
unanimous that it had reasonable doubt about Defendant’s guilt of CSCM. The court’s
second response indicates it understood the jury was unable to reach a unanimous decision
on the CSCM charge, and it sought to determine if the jury was still deliberating on the other
counts. Indeed, that understanding was consistent with the jury’s express statement that it
was “unable to reach a unanimous decision” on the CSCM charge. The jury’s next response
states it had reached a decision on the other counts, and notably, the jury did not indicate a
change in its decision on Count 1 or that it had now reached a unanimous verdict on any
level of charge included in Count 1. The jury’s final note states it was finished with
deliberations on Count 1. Also notable and pointed out by the State, the communications
between the district court and the jury consistently refer to CSCM as “Count 1” and battery
as the “lesser charge” or “included offense.” Thus, we conclude the record of
communications makes clear that the jury’s inability to agree on a finding of guilty or not
guilty applied only to the CSCM aspect of Count 1.

{11} Defendant argues that we must presume the jury continued deliberations on Count
1 for approximately thirty-five minutes between when the court instructed the jury for the
second time to not consider battery unless it was unanimous on Defendant’s acquittal for
CSCM and the time the jury stated it was finished as to Count 1. Defendant argues the court
failed to poll the jury after the conclusion of deliberations in accordance with Rule 5-611(D),
which states that the court shall poll the jury if the jury cannot unanimously agree upon the
offenses submitted and that any ambiguity resulting from the lack of formal polling should
be resolved in his favor.

{12} We note that in Castrillo and Fielder the record was silent regarding the level of
charge at which the jury was hung. See Castrillo, 1977-NMSC-059, ¶ 14 (dismissing on
double jeopardy grounds all but the least of the lesser included charges when the record was
unclear as to which of those offenses was the basis for the impasse and the district court did
not conduct further inquiry to ascertain at which level of charge the jury was deadlocked);
Fielder, 2005-NMCA-108, ¶ 15 (determining no manifest necessity existed to declare a
mistrial on the charge of CSP II because the district court did not inquire into the jury’s
deliberations to determine upon which level of CSP the jury disagreed). In contrast, the
record shows the jury in the present case twice indicated it was hung on the CSCM charge.

{13} Defendant asserts that the level of deadlock is ambiguous because thirty-five minutes
elapsed before the conclusion of deliberations, during which the jury could have acquitted
Defendant of CSCM and hung on the battery charge, however, Defendant did not develop

                                              5
any facts at the time the jury returned its verdicts or demonstrate there was any question
regarding the level of deadlock. We note a double jeopardy challenge need not be preserved.
There must, however, exist a factual basis in the record for the argument. See State v. Wood,
1994-NMCA-060, ¶ 19, 117 N.M. 682, 875 P.2d 1113 (acknowledging double jeopardy
issues may be raised at any time “either before or after judgment,” but providing that “a
factual basis must appear in the record in order to support such claim”); see also State v.
Antillon, 2000-NMSC-014, ¶ 6, 129 N.M. 114, 2 P.3d 315 (recognizing double jeopardy
claims may not be waived and citing Wood for the proposition that a double jeopardy
defense “must be supported by a factual basis in the record”); State v. Sanchez,
1996-NMCA-089, ¶ 11, 122 N.M. 280, 923 P.2d 1165 (stating that the appellate courts place
the burden on the party raising the double jeopardy challenge to provide a sufficient record
for appellate analysis of the issue).

{14} Based on the jury’s notes stating it was hung and therefore unable to resolve the
charge of CSCM and its later confirmation that it was unable to agree on Count 1, the district
court held that the jury was hung and obviously understood the level of charge upon which
the jury was deadlocked. Moreover, Defendant also appears to have understood the jury to
be deadlocked on the CSCM charge, because he only requested the jury be polled to
determine individual votes for and against conviction and did not express any question about
the level of the jury’s impasse or request polling at the time to resolve any ambiguity.
Beyond Defendant’s argument that further deliberation may have occurred, nothing in the
record suggests an interpretation other than that the jury was deadlocked on the CSCM
charge. Indeed, the district court’s post-deliberation questioning of the foreman and the
unsigned verdict forms regarding Count 1 further cement the jury’s inability to agree as to
Count 1, and given the facts of the case, in particular, CSCM. Thus, based on the extent of
the record before us, we decline to speculate whether the jury later acquitted Defendant of
CSCM and to presume a double jeopardy violation based upon that speculation when all
evidence in the record indicates the contrary.

{15} Defendant contends that the district court did not strictly comply with the mandatory
language of Rule 5-611(D) when it determined the level of deadlock through notes
exchanged between the jury and the district court, rather than through a more formalized
polling process employed at the time the jury delivered its verdicts on the other counts. Thus,
Defendant asserts the district court’s failure to strictly adhere to the requirements of Rule 5-
611(D) bars his retrial on CSCM on double jeopardy grounds. Without opining as to what
would constitute an adequate “formalized polling process” as a matter of law, we hold that
in this case, where the communications evidence jury disagreement on the CSCM charge,
to reverse would be to read Rule 5-611(D) more technically than substantively.

{16} We hold that the notes exchanged between the jury and the district court, coupled
with the verbal confirmation from the foreman that the jury was unable to agree on Count
1, demonstrate the jury was deadlocked on CSCM and satisfied the intent of Rule 5-611(D).
To hold otherwise would be to exalt form over substance, which we decline to do. See State
ex rel. Children, Youth & Families Dep’t v. Benjamin O., 2007-NMCA-070, ¶ 39, 141 N.M.

                                               6
692, 160 P.3d 601 (“[W]e do not exalt form over substance.”).

{17} Because the record demonstrates the jury was deadlocked on the charge of CSCM,
we conclude manifest necessity existed to declare a mistrial on that charge and double
jeopardy did not attach. Accordingly, we affirm.

{18}   IT IS SO ORDERED.

                                               ____________________________________
                                               JONATHAN B. SUTIN, Judge

I CONCUR:

____________________________________
J. MILES HANISEE, Judge

GARCIA, Judge (dissenting).

{19} I respectfully dissent in this case. This is not a post-deliberation polling case. Post-
deliberation polling was never conducted by the district court in this case. See Majority Op.
¶ 9. Although our decisions in Garcia and Fielder give some guidance to resolve the correct
way to poll a jury, both involved post-deliberation polling of the jury, and whether, pursuant
to Rule 5-611(D), the jury was correctly polled after deliberations were completed. See
Garcia, 2005-NMCA-042, ¶¶ 27-29; Fielder, 2005-NMCA-108, ¶¶ 8-11. In the present case,
the district court made a reasonable and clear inquiry regarding a potential deadlock on
Count 1 during jury deliberations but failed to poll the jury after jury deliberations were
concluded, as required under Rule 5-611(D). Majority Op. ¶¶ 8-9. It is this failure to ever
poll the jury after deliberations ceased, some thirty-five minutes after the inquiry during jury
deliberations, that aligns this case more closely with the circumstances in Castrillo. See
Castrillo, 1977-NMSC-059, ¶ 14 (establishing that post-deliberation polling was not done
regarding the included offenses related to the murder charge). Because no polling was ever
done in this case, as the majority agrees is a requirement under Rule 5-611(D), it is not this
Court’s role to change or modify the unambiguous requirement in Rule 5-611(D) regarding
polling the jury. See Majority Op. ¶¶ 11, 15; see also State v. Montoya, 2011-NMCA-009,
¶ 8, 149 N.M. 242, 247 P.3d 1127 (recognizing that interpretation of a Supreme Court rule
is a question of law and the plain meaning rule applies where the language of the rule is
“clear and unambiguous” (internal quotation marks and citation omitted)).

{20} The issue that concerns me is whether our Supreme Court simultaneously intended
to create a rule requiring the polling of the jury while also providing for case-by-case
exceptions to polling—where this Court then attempts to interpret questions and answers
exchanged between the district court and the jury during deliberations. The majority is
correct when it concludes that one reasonable interpretation of the jury deadlock issue would
support its interpretation. See Majority Op. ¶¶ 14, 16. The issue, however, is not about a

                                               7
potentially reasonable interpretation that this Court can make regarding inquiries and
questions occurring during jury deliberations, it is about whether our Supreme Court wants
us to make these interpretations on a case-by-case basis.

{21} Although the district court may have made a reasonable and adequate inquiry
regarding the basis for the jury’s alleged deadlock on Count 1, that inquiry was made during
the time that deliberations were still ongoing and it failed to fulfill the polling requirements
of Rule 5-611(D) after jury deliberations were completed. The only question resolved after
the jury completed its deliberations established that “there [was] no possibility for juror
agreement on Count 1.” A specific inquiry regarding the primary offense of CSCM and the
lesser included offense of battery was not addressed after deliberations ceased. Any
confusion or ambiguity regarding possible changes in the jury’s position that may have
occurred during the final thirty-five minutes of deliberation on Count 1 was not resolved by
the required post-deliberation polling of the jury.

{22} If our Supreme Court mandated that the district court is required to remove any
potential for confusion or ambiguity regarding which offenses a jury has deadlocked over,
then post-deliberation polling under Rule 5-611(D) is not optional. If there is room for this
Court to resolve confusion or ambiguity regarding which offenses a jury has deadlocked
over, without post-deliberation polling, then the majority has adequately identified one
potential exception to Rule 5-611(D). I believe that any exception to the polling requirement
under Rule 5-611(D) must be left to our Supreme Court and should not be made by this
Court. See Alexander v. Delgado, 1973-NMSC-030, ¶ 9, 84 N.M. 717, 507 P.2d 778 (“The
general rule is that a court lower in rank than the court which made the decision invoked as
a precedent cannot deviate therefrom and decide contrary to that precedent, irrespective of
whether it considers the rule laid down therein as correct or incorrect.” (internal quotation
marks and citation omitted)). “This [C]ourt is bound by [S]upreme [C]ourt rules.” Shain v.
Birnbaum, 1991-NMCA-092, ¶ 5, 112 N.M. 700, 818 P.2d 1224; see State ex rel. Martinez
v. City of Las Vegas, 2004-NMSC-009, ¶¶ 20-22, 135 N.M. 375, 89 P.3d 47 (confirming that
the Court of Appeals remains bound by Supreme Court precedent but is invited to explain
any reservations that it may harbor, with one exception allowing for a review of uniform jury
instructions that have not previously been ruled upon by the Supreme Court).

{23} As a result, I do not agree with the majority’s deviation from our Supreme Court’s
rule. Polling under Rule 5-611(D) is a requirement after all jury deliberations have ceased
and are completed. Any modification in the “shall poll the jury” requirement set forth in
Rule 5-611(D) must be left to the discretion of our Supreme Court and is not a discretionary
matter that this Court should undertake on the basis of inference, technicality, or substance
over form.


                                               ____________________________________
                                               TIMOTHY L. GARCIA, Judge


                                               8
TIMOTHY L. GARCIA, Judge (dissenting).




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