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

 2 Opinion Number: __________

 3 Filing Date: February 3, 2016

 4 NO. 33,837

 5 STATE OF NEW MEXICO,

 6         Plaintiff-Appellee,

 7 v.

 8 CAESAR ORTIZ-CASTILLO,

 9         Defendant-Appellant.


10 APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
11 James M. Hudson, District Judge

12   Hector H. Balderas, Attorney General
13   Santa Fe, NM
14   Jane A. Bernstein, Assistant Attorney General
15   Albuquerque, NM

16 for Appellee

17 L. Helen Bennett, P.C.
18 L. Helen Bennett
19 Albuquerque, NM

20 for Appellant
 1                                         OPINION

 2 WECHSLER, Judge.

 3   {1}   This appeal arises from a jury trial in which Defendant Caesar Ortiz-Castillo

 4 was convicted of trafficking controlled substances, contrary to NMSA 1978, Section

 5 30-31-20(A)(3) (2006), and possession of drug paraphernalia, contrary to NMSA

 6 1978, Section 30-31-25.1(A) (2001). Defendant originally appealed three issues, two

 7 of which we addressed in a memorandum opinion that affirmed Defendant’s

 8 convictions. State v. Ortiz-Castillo, No. 33,837, mem. op. (N.M. Ct. App. Feb. 3,

 9 2016) (non-precedential).

10   {2}   The final issue on appeal relates to Defendant’s claim that the district court’s

11 failure to provide Spanish translations of written jury instructions to a Spanish-

12 speaking juror violated that juror’s constitutional right to fully participate in the trial.

13 Because we conclude that the accommodations made by the district court were

14 sufficient to avoid any impairment to the ability of a Spanish-speaking juror to fully

15 participate, we affirm.

16 BACKGROUND

17   {3}   The jury panel convened for Defendant’s criminal trial included individuals for

18 whom Spanish was their primary language. One of these individuals was ultimately

19 selected to serve on the jury and required interpretative services throughout the trial.
 1 Defendant’s request that the Spanish-speaking juror be provided written jury

 2 instructions in Spanish was denied, but the district court noted that an interpreter

 3 would be present during deliberations and could translate the jury instructions as

 4 needed. Defendant appealed the district court’s refusal to provide written translations

 5 of the jury instructions into Spanish.

 6 PRESERVATION

 7   {4}   Defendant argued both at trial and in his appellate briefing that the district

 8 court’s failure to provide Spanish-language translations of written jury instructions

 9 could compromise the Spanish-speaking juror’s ability to fully participate in the

10 deliberative process. Our appellate courts have held that criminal defendants have

11 standing to assert the rights of jurors to be free from discriminatory exclusion, a

12 premise that extends to the deliberative process. See State v. Rico, 2002-NMSC-022,

13 ¶ 6, 132 N.M. 570, 52 P.3d 942 (“In [State v. Singleton, 2001-NMCA-054, 130 N.M.

14 583, 28 P.3d 1124], the Court of Appeals held that a defendant has standing to protect

15 the Article VII, Section 3 rights of an excluded juror. This result is correct.” (citation

16 omitted)).

17 STANDARD OF REVIEW

18   {5}   Defendant’s argument that Spanish-speaking jurors are entitled to written

19 translations of jury instructions is premised upon language found in the New Mexico


                                               2
 1 Constitution. See N.M. Const. art. VII, § 3. We review questions of constitutional law

 2 de novo. State v. DeGraff, 2006-NMSC-011, ¶ 6, 139 N.M. 211, 131 P.3d 61.

 3 WRITTEN JURY INSTRUCTIONS FOR SPANISH-SPEAKING JURORS

 4   {6}   Defendant argues on appeal that the New Mexico Constitution requires that

 5 written translations of jury instructions be provided to Spanish-speaking jurors. The

 6 New Mexico Constitution provides, in pertinent part, that “[t]he right of any citizen

 7 of the state to vote, hold office or sit upon juries, shall never be restricted, abridged

 8 or impaired on account of religion, race, language or color, or inability to speak, read

 9 or write the English or Spanish languages[.]” N.M. Const. art. VII, § 3.1 As additional

10 support for his argument, Defendant notes that our Supreme Court, discussing Article

11 VII, Section 3 in Rico, stated that “[i]t is an unusual constitutional provision

12 and . . . will not always be convenient to implement. The judicial branch of

13 government will need the resources to make full implementation a reality.” 2002-

14 NMSC-022, ¶ 7.




           1
15          While only the English and Spanish languages are afforded inherent status
16   under Article VII, Section 3, our Supreme Court has indicated that the constitutional
17   principles and protections apply to persons who speak other languages. See Rico,
18   2002-NMSC-022, ¶ 3 (“Since the basis of our order was Article VII, Section 3, we
19   see no reason why its principles . . . should not protect speakers of the Navajo
20   language.”).

                                               3
 1   {7}   Our Supreme Court recently spoke to whether jury instructions must be

 2 provided in languages other than English in Order No. 00-8500, which adopted the

 3 Non-English Speaking Juror Guidelines (NES Guidelines) drafted by the Committee

 4 for the Improvement of Jury Service in New Mexico. See Supreme Court Order No.

 5 00-8500 (Sept. 11, 2000). The NES Guidelines exist “to assist in the efforts of the

 6 New Mexico Judiciary to incorporate non-English speaking (NES) citizens into New

 7 Mexico’s jury system.” State v. Pacheco, 2007-NMSC-009, app. C § I, 141 N.M. 340,

 8 155 P.3d 745. In contemplation of whether trial courts should provide written

 9 translations of jury instructions to NES jurors, the NES Guidelines state that “courts

10 are encouraged to draft written, Spanish translations of the jury instructions with the

11 assistance of a court interpreter. Alternatively, the court interpreter assigned to assist

12 NES jurors during deliberations may provide an oral translation of the jury

13 instructions.” Id. § II(H). Given this language, it appears that our Supreme Court has

14 considered the issue raised by Defendant and determined that the alternate

15 accommodations outlined in the NES Guidelines are sufficient.

16   {8}   Our analysis of Article VII, Section 3 leads to the same conclusion. The

17 language of Article VII, Section 3 limits a government’s ability to “restrict[],

18 abridge[], or impair[]” a citizen’s right to serve on a jury. N.M. Const. art. VII, § 3.

19 The facts of this case implicate the potential for impairment of jury service as


                                               4
 1 opposed to the potential for restriction or abridgment. Cf. Rico, 2002-NMSC-022, ¶ 1

 2 (holding that a trial court may not excuse a potential juror simply because the juror

 3 would need an interpreter to participate in the proceedings).

 4   {9}    Our central purpose in interpreting the constitution is to “reflect[] the drafters’

 5 intent.” State v. Lynch, 2003-NMSC-020, ¶ 24, 134 N.M. 139, 74 P.3d 73. Principles

 6 of statutory construction “apply equally to constitutional construction.” State v.

 7 Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830 (internal quotation marks and citation

 8 omitted). As with legislative intent, to determine the intent of the drafters of our

 9 Constitution, “we first turn to the plain meaning of the words at issue, often using the

10 dictionary for guidance.” Id. ¶ 9. Under the plain meaning rule, we apply the ordinary

11 meaning of the chosen language “unless the language is doubtful, ambiguous, or an

12 adherence to the literal use of the words would lead to injustice, absurdity or

13 contradiction[.]” State v. Maestas, 2007-NMSC-001, ¶ 9, 140 N.M. 836, 149 P.3d

14 933 (internal quotation marks and citation omitted).

15   {10}   Webster’s International Dictionary variously defines the word “impair” as to

16 “do harm to[,]” to “damage[,]” and to “lessen[.]” Webster’s Third New Int’l

17 Dictionary, 1131 (unabridged ed. 1993). Application of any of these definitions to the

18 language of Article VII, Section 3 indicates that, to violate the New Mexico

19 Constitution, a governmental entity must implement a system whereby the “inability


                                                 5
 1 to speak, read or write the English or Spanish languages” somehow harms the ability

 2 of an individual to serve on a jury. N.M. Const. art. VII, § 3.

 3   {11}   Defendant argues that the absence of a written translation of jury instructions

 4 impairs, or harms, the ability of a NES juror to fully participate in the deliberative

 5 process. In order to determine whether this is true, we must first establish the purpose

 6 of written jury instructions. The seminal case on this topic, Kunz v. Nelson, holds that

 7 the general purpose of written jury instructions is to assist the jury during

 8 deliberations. 76 P.2d 577, 584 (Utah 1938) (“The requirement to instruct in writing

 9 does not mean for the purposes of the record only, but for the purposes of use by the

10 jury in the jury room[.]”). Our Supreme Court has advanced similar rationales for the

11 use of written jury instructions in New Mexico. See Territory v. Lopez, 1884-NMSC-

12 012, ¶ 10, 3 N.M. 156, 2 P. 364 (“[I]nstructions, under our statute, must be in writing,

13 and should properly enunciate the law on the subject.”); State v. Greenlee, 1928-

14 NMSC-020, ¶ 27, 33 N.M. 449, 269 P. 331 (“Since 1880 it has evidently been the

15 legislative policy that there should be an authoritative record to which the jurors

16 might refer to avoid misapprehension or differences of opinion[.]”); Hayes v.

17 Hockenhull, 1964-NMSC-087, ¶ 14, 74 N.M. 329, 393 P.2d 444 (“The purpose of

18 instructing the jury is to make the issues that they are to determine plain and clear.”).




                                               6
 1   {12}   Legal scholarship further clarifies that the purpose of written jury instructions

 2 relates directly to the ability of jurors to remember oral instructions once they have

 3 retired to the jury room. See, e.g., Jeannine Turgeon and Elizabeth Francis, Improving

 4 Pennsylvania’s Justice System Through Jury System Innovations, 18 Widener L.J.

 5 419, 439 (2009) (“Empirical research confirms our intuitive notion that written

 6 instructions aid in the comprehension, retention, and application of the judge’s

 7 instructions. . . . Research in cognitive psychology has amply demonstrated the

 8 benefits for comprehension and recall of both multiple exposure and written

 9 materials. Providing jurors with copies of written instructions increases juror

10 understanding of the instructions, results in less confusion about applicable law,

11 reduces questions about the instructions during the deliberations, reduces deliberation

12 time, reduces disputes among jurors about the meaning and correct application of

13 instructions, and increases jurors’ confidence in the verdicts they reach.” (footnotes

14 omitted)); Elizabeth A. Tashash, Note, Mandatory Provision of Written Copies of

15 Jury Instructions to Retiring Juries in Criminal Trials in Massachusetts, 19 Suffolk

16 J. of Trial & App. Advoc. 414, 427-28 (2014) (“[T]he advantages of submitting

17 written copies of [jury instructions] are clearly demonstrated by the empirical studies

18 on juror comprehension of jury instructions. The simple visual aid of a written copy

19 of the jury instructions for use in the deliberation room allows for a solution to the


                                                7
 1 study      results   that   show    that   jurors    cannot    remember—let       alone

 2 comprehend—instructions after hearing them only once. In addition, there is evidence

 3 that juries provided with a written copy of the jury instructions deliberate in more

 4 efficient and informed ways, and feel more confident about their decisions.”

 5 (footnotes omitted)). There is no reason to believe that these findings would be less

 6 applicable to NES jurors.

 7   {13}   However, the question before this Court is not whether written jury instructions

 8 are beneficial, but it is instead whether the absence of written jury instructions would

 9 impair a NES juror’s ability to fully participate given the facts of this case.

10   {14}   New Mexico law provides that jurors are entitled to the same interpretative

11 services during jury deliberations as they are during the trial itself. See Pacheco,

12 2007-NMSC-009, ¶ 2 (“[O]nce an interpreter has been given the mandatory

13 interpreters’ oath to interpret testimony correctly, an interpreter is authorized to be

14 in the room during deliberations to assist non-English speaking jurors.”). New

15 Mexico law also defines “court interpreter” as “a person who provides interpretation

16 or translation services for a case participant[,]” including jurors. Rule 1-103(A)(5)

17 NMRA. “Translation” is defined as “the transmission of a written message from one

18 language to another[.]” Rule 1-103(A)(4).




                                                8
 1   {15}   In the present case, three certified court interpreters were sworn prior to the

 2 beginning of the proceedings. Two of these interpreters accompanied the NES juror

 3 into the jury room to assist with the deliberative process.

 4   {16}   If the purpose of written jury instructions is to limit the need for absolute recall

 5 memory of oral instructions given in the court room, we are unable to say that the

 6 presence of the interpreters in the jury room does not mitigate any potential

 7 impairment. Our rules of trial practice anticipate the need to translate written

 8 documents, including jury instructions, for NES jurors. Rule 1-103(E)(8). There is no

 9 reason to believe that one or both of the court interpreters present, who were qualified

10 under Rule 1-103(E)(1)-(3), would be unable to do so in this, or any, case.

11   {17}   Defendant’s reliance on Rico to argue that a trial court must provide written

12 jury instructions, regardless of the procedural costs, is misplaced in this case. In

13 addition to the language cited by Defendant, our Supreme Court in Rico also noted,

14 “[t]he rights protected by Article VII, Section 3, like most constitutionally protected

15 rights, are not absolute. There are circumstances in which a prospective juror’s right

16 to serve on a jury must be balanced against practical considerations[.]” Rico, 2002-

17 NMSC-022, ¶ 10. The practical considerations in this case, obviously, are the

18 resources necessary to translate jury instructions when a readily available

19 accommodation exists within our current system of trial administration. Were data


                                                 9
 1 available showing that jury instructions serve a purpose that cannot be resolved

 2 through translation by a court interpreter in the jury room, our analysis could differ.

 3 Because any potential prejudice to the juror is equally well resolved by written

 4 translations prior to deliberations, or oral or written translations as needed within the

 5 confines of the jury room, the juror’s right to fully participate has not been impaired

 6 as that word is used in Article VII, Section 3 of the New Mexico Constitution.

 7   {18}   In the absence of an impairment to a juror’s constitutional right to fully

 8 participate in the deliberative process, we decline to mandate that trial courts provide

 9 written translations of jury instructions. This conclusion accords with the

10 accommodations contemplated in the NES Guidelines that were implemented by

11 order of our Supreme Court. Pacheco, 2007-NMSC-009, app. C § II(H). If the

12 “unusual” wording set forth in Article VII, Section 3 of the New Mexico Constitution

13 necessitates that written translations be provided to Spanish-speaking jurors in the

14 absence of an impairment, that determination is properly left to our highest court.

15 Rico, 2002-NMSC-022, ¶ 7.




                                              10
1 CONCLUSION

2   {19}   Therefore, we affirm.

3   {20}   IT IS SO ORDERED.


4                                          ________________________________
5                                          JAMES J. WECHSLER, Judge


6 WE CONCUR:


7 ________________________________
8 RODERICK T. KENNEDY, Judge


 9 ________________________________
10 TIMOTHY L. GARCIA, Judge




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