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 1          IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Filing Date: November 9, 2017

 3 NO. S-1-SC-35666

 4 STATE OF NEW MEXICO,

 5          Plaintiff-Appellant,

 6 v.

 7 JASHON WARREN,

 8          Defendant-Appellee.

 9 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
10 Jacqueline Flores, District Judge


11 Hector H. Balderas, Attorney General
12 Maris Veidemanis, Assistant Attorney General
13 Santa Fe, NM

14 for Appellant


15 Bennett J. Baur, Chief Public Defender
16 William A. O’Connell, Assistant Appellate Defender
17 Santa Fe, NM

18 for Appellee
 1                   DISPOSITIONAL ORDER OF AFFIRMANCE

 2 VIGIL, Justice.

 3   {1}   This matter having come before the Court by way of a transfer order from the

 4 Court of Appeals pursuant to Rule 12-102(A)(1) NMRA as a matter in which a life

 5 sentence may be imposed, and each member of the Court having studied the briefs,

 6 engaged in oral argument, and being otherwise fully informed on the issues and

 7 applicable law; and

 8   {2}   The members of this Court having unanimously concurred that there is no

 9 reasonable likelihood that a decision or opinion of the Court under the instant facts

10 would materially advance the law of New Mexico; and

11         The members of the Court having unanimously agreed to invoke the Court’s

12 discretion under Rule 12-405(B)(2) NMRA to dispose of a case by order, decision, or

13 memorandum opinion rather than formal opinion;

14 IT IS THEREFORE ADJUDGED THAT:

15   {3}   This appeal arises from the district court’s order granting a new trial after it

16 found verdict forms pertaining to a severed count at the bottom of the stack of

17 instructions and verdict forms that had been given to the jury for their deliberations.

18   {4}   Appellee Jashon Warren (Defendant) was charged with Count 1: first-degree

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 1 murder by a deliberate killing or, in the alternative, by felony murder; Count 2:

 2 shooting at or from a motor vehicle; and Count 3: possession of a firearm or

 3 destructive device by a felon. Before trial, the parties agreed that subjecting Defendant

 4 to charges under Count 3, possession of a firearm or destructive device by a felon,

 5 would prejudice him and therefore the district court severed Count 3 and ordered it to

 6 be tried separately. Defendant was tried on Counts 1 and 2.

 7   {5}   The jury was instructed on first-degree murder by a deliberate killing, second-

 8 degree murder with a firearm enhancement, voluntary manslaughter with a firearm

 9 enhancement, shooting at or from a motor vehicle, and first-degree murder (felony

10 murder). In addition, the district court gave the jury general instructions, including

11 that they were to consider the instructions as a whole, that each crime was to be

12 considered separately, and that they were to determine the facts from the evidence

13 produced in court.

14   {6}   The jury returned a guilty verdict on Count 1, first-degree murder by deliberate

15 killing. The jury did not sign any of the verdict forms for Count 2, shooting at or from

16 a motor vehicle. After taking the verdict, the district court polled and then discharged

17 the jury. Later, the district court discovered three verdict forms for the severed Count

18 3, possession of a firearm or dangerous device by a felon, at the bottom of the pile of


                                               3
 1 instructions and verdict forms that had been given to the jury for deliberation. Upon

 2 discovering these verdict forms, the district court immediately called counsel back to

 3 court. Defense counsel moved for a mistrial or, in the alternative, a new trial.

 4   {7}   The district court was certain that the forms went back with the jury during

 5 deliberations because they were not separated from the other instructions. The district

 6 court also recognized that it did not know if the jury had seen or read the improper

 7 verdict forms. Defense counsel and the district court both recalled that the State had

 8 prepared the jury instructions and that neither the district court nor defense counsel

 9 had checked them. The district court accepted responsibility.

10   {8}   Defendant filed a “motion for new trial, motion for a mistrial nunc pro tunc,

11 request for evidentiary hearing.” The State responded with its “brief regarding the

12 effects of extraneous information unintentionally given to the jury.”

13   {9}   After hearing the arguments of the parties at a hearing on Defendant’s motion,

14 the district court stated, “I have to be confident that this defendant got a fair trial. . . . I

15 think it would prejudice a typical juror if they knew the defendant was a convicted

16 felon.” Finding further that the verdict forms for the severed count had reached the

17 jury room, the district court entered an order granting Defendant’s motion for a new

18 trial. The State appealed the district court’s order granting a new trial.


                                                  4
 1   {10}   We review the district court’s decision to grant a new trial under an abuse of

 2 discretion standard. State v. Griffin, 1994-NMSC-061, ¶ 9, 117 N.M. 745, 877 P.2d

 3 551. If there are “reasons both supporting and detracting from a trial court decision,

 4 there is no abuse of discretion.” State v. Moreland, 2008-NMSC-031, ¶ 9, 144 N.M.

 5 192, 185 P.3d 363 (internal quotation marks and citation omitted).

 6   {11}   The State argues that the district court abused its discretion by granting a new

 7 trial without evidence that the jury saw or were influenced by the verdict forms for the

 8 severed count. We disagree. In State v. Jojola, this Court held that:

 9          (1) a presumption of prejudice which the State must dispel only arises
10          from an “improper communication” between judge and juror; (2) an
11          “improper communication” occurs when the substance of the ex parte
12          communication “relates to the issues of the case”; and (3) a
13          communication that does not “relate to the issues of the case” (that is, a
14          “housekeeping matter”) generally does not give rise to a presumption of
15          prejudice.

16 2006-NMSC-048, ¶ 6, 140 N.M. 660, 146 P.3d 305. Under this standard, the district

17 court did not abuse its discretion by granting a new trial.

18   {12}   First, the inclusion of these verdict forms with the material for deliberation was

19 a “communication between judge and juror [.]” Id. (internal quotation marks omitted).

20 The district court was certain the improper verdict forms were given to the jury, for

21 which the district court took responsibility. The improper verdict forms were in the


                                                5
 1 stack of material given to the jury for use in their deliberations and the district court

 2 instructed the jury to consider their instructions as a whole. We presume that juries

 3 follow the instructions given to them by the district court. State v. Benally, 2001-

 4 NMSC-033, ¶ 21, 131 N.M. 258, 34 P.3d 1134; State v. Smith, 2001-NMSC-004, ¶

 5 40, 130 N.M. 117, 19 P.3d 254.

 6   {13}   Second, the improper verdict forms were related to the issues of the case.

 7 Jojola, 2006-NMSC-048, ¶ 6. The verdict forms for Count 3 were related to the same

 8 underlying circumstances as Counts 1 and 2 and were originally brought in the same

 9 action by the State.

10   {14}   We conclude that giving the improper verdict forms to the jury before

11 deliberations constituted an “improper communication” and thus gave rise under

12 Jojola to the presumption of prejudice. The State had the burden to rebut this

13 presumption and failed to do so.

14   {15}   Having concluded that the verdict forms would prejudice a typical juror, the

15 district court did not abuse its discretion by granting Defendant’s motion for a new

16 trial. The district court was certain that verdict forms for a count previously severed

17 to avoid prejudice to Defendant were in the jury room during deliberations. The

18 district court acted in response to its own “improper communication” to ensure that


                                               6
 1 Defendant received a fair trial. Under these circumstances, it was not an abuse of

 2 discretion for the district court to presume prejudice and grant a new trial.

 3   {16}   WE AFFIRM.

 4   {17}   IT IS SO ORDERED.


 5                                            __________________________________
 6                                           JUDITH K. NAKAMURA, Chief Justice



 7                                           __________________________________
 8                                           PETRA JIMENEZ MAES, Justice



 9                                           __________________________________
10                                           EDWARD L. CHÁVEZ, Justice



11                                           __________________________________
12                                           CHARLES W. DANIELS, Justice



13                                            __________________________________
14                                            BARBARA J. VIGIL, Justice




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