N.M. R. Crim. P. Dist. Ct. 5-612
N.M. R. Crim. P. Dist. Ct. 5-612
Committee commentary. - This rule is similar to Rule 43 of the Federal Rules of Criminal Procedure. See Fed. R. Crim. P. 43.
Prior to the 1974 amendment, Paragraph B of this rule excluded capital cases from the scope of this rule. The 1974 amendment, expanding the scope of the rule to include capital cases, follows the decision in State v. Corriz, 86 N.M. 246, 522 P.2d 793 (1974).
ANNOTATIONS The 2006 amendment, approved by Supreme Court Order 06-8300-10 effective April 15, 2006, revised Paragraph A to specify each stage of the criminal proceedings during which the defendant shall be present, added a new Paragraph B providing for the waiver of personal appearance by the defendant, relettered former Paragraph B as Paragraph C and revised Paragragh C to require the court find by clear and convincing evidence that the defendant is disruptive prior to excluding the defendant from the courtroom and to permit the defendant to subsequently regain the right to personally be present upon agreement to refrain from disruptive conduct.
For the Waiver of Appearance form approved by the Supreme Court for use with this rule, see Criminal Form 9-104 NMRA. Presence not required during compiling of jury panels. - This rules does not require, nor expressly or impliedly permit, a defendant's presence at the computerized selection of the jury panel from which the jury will eventually be selected. Because this stage is purely ministerial, there is no reason for the defendant to be present. State v. Huff, 1998-NMCA-075, 125 N.M. 254, 960 P.2d 342, cert. denied, 125 N.M. 146, 958 P.2d 104. Constitutional right to be present. - A defendant's right to be present at every stage of the trial is grounded in the sixth amendment to the United States Constitution and made applicable to the states through the fourteenth amendment. State v. Garcia, 1980-NMSC-132, 95 N.M. 246, 620 P.2d 1271. Right may be waived. - A trial court may accept a knowing, intelligent, and voluntary waiver of a defendant's presence at jury selection either as an express waiver or as an implied waiver when a defendant has forfeited that right to be present by conduct. State v. Padilla, 2002-NMSC-016, 132 N.M. 247, 46 P.3d 1247. Right to be present for challenges to jurors. - Subsection (a) (see now Paragraph A) of this rule gives the defendant a right to be present when challenges are being made to jurors. State v. Garcia, 1980-NMSC-132, 95 N.M. 246, 620 P.2d 1271. Reversal mandated for denial of right. - The trial court erred in denying the defendant the right to be present when challenges to the jury were made, and such error mandated reversal and remand for a new trial. State v. Garcia, 1980-NMSC-132, 95 N.M. 246, 620 P.2d 1271. Waiver in general. - The right of presence is not absolute and may be waived if the court determines the waiver to have been voluntarily, knowingly, and intelligently made. Waiver may be occasioned by the voluntary absence of an accused, or by his disruptive conduct. State v. Clements, 1988-NMCA-094, 108 N.M. 13, 765 P.2d 1195. Where defendant is in custody, waiver of presence by voluntary absence cannot be inferred. - Where defendant is in custody at the time of the communications between the judge and the jury, the trial court cannot properly infer that he had waived his presence by voluntary absence under this rule. Hovey v. State, 1986-NMSC-069, 104 N.M. 667, 726 P.2d 344. Defendant voluntarily absented himself from the trial when he went to another city to locate a witness; however, after he was placed in custody, he was no longer voluntarily absent, and the state then had the burden of demonstrating beyond a reasonable doubt that conducting the trial during defendant's absence would be harmless. State v. Clements, 1988-NMCA-094, 108 N.M. 13, 765 P.2d 1195. Waiver of right of presence in capital case. - As the capital versus noncapital distinction is not one mandated by the constitution, and since the rule does not preclude a waiver in capital cases, a defendant in New Mexico may waive the right of presence in a capital case. State v. Corriz, 1974-NMSC-043, 86 N.M. 246, 522 P.2d 793. Waiver of presence at suppression hearing. - Where defense counsel had not spoken with defendant and it was probable that defendant had yet to receive notice of a suppression hearing, defendant could not voluntarily, knowingly, and intelligently waive his presence, and counsel's waiver was ineffective. Since the suppression hearing was critical to defendant's case, he had a right to be present, and it was error to proceed with the hearing in defendant's absence. State v. McDuffie, 1987-NMCA-077, 106 N.M. 120, 739 P.2d 989. Removal of defendant for misconduct in case where insanity pleaded. - That defendant pleaded insanity and was being tried for a capital case did not preclude the trial court from excluding him for misconduct as the trial court must, in all cases, be granted the discretion to control the proper administration of criminal justice and should be able to remove a defendant whenever the circumstances so dictate. State v. Corriz, 1974-NMSC-043, 86 N.M. 246, 522 P.2d 793. Defendant's conduct during trial did not require a mistrial. - Where, during the testimony of a state witness, defendant rose from defendant's seat at the defense table and stated that defendant had to go somewhere because defendant could not handle the proceedings; security officers restrained defendant; on voir dire by the court, some of the jurors indicated that they observed an altercation between defendant and the officers; and all of the jurors stated that they would remain fair and impartial and that they could base their decision solely on the evidence, the trial court did not abuse its discretion in denying defendant's motion for a mistrial. State v. Swick, 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, cert. granted, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146. Criminal contempt proceedings. - Defendant's criminal contempt conviction in a divorce proceeding was invalid because the court improperly commenced and completed the criminal contempt hearing though defendant was not present. Beverly v. Beverly, 2000-NMCA-097, 129 N.M. 719, 13 P.3d 77. Presence of counsel only at contempt hearing. - Where plaintiff property owner brought suit against adjoining property owner to restrain him from certain actions and court issued order restraining both parties, whereupon defendant had the court issue an order requiring plaintiff to show cause why he should not be held in contempt for violation of restraining order, plaintiff failed to appear within the meaning of Rule 15(b) (see now Paragraph B of Rule 5-209 NMRA) when he sent his counsel to respond to the show cause order for him, as appearance by counsel was not a permitted response under the present rule. Trial court was therefore authorized to issue an arrest warrant under Rule 15(b) (see now Paragraph B of Rule 5-209 NMRA), but was not authorized to try and sentence the plaintiff under the present rule. Lindsey v. Martinez, 1977-NMCA-086, 90 N.M. 737, 568 P.2d 263. Presence not required at post-conviction hearing. - It is implicit from the language of 39-1-1 NMSA 1978 that it is within the sound discretion of the trial court whether to direct a defendant be physically present before the court at a hearing to reconsider or modify a prior sentence. Construing the pertinent rules and statutes together, a defendant need not be present at a hearing to reconsider a sentence, except where the hearing results in the terms of the sentence being made more onerous. State v. Sommer, 1994-NMCA-070, 118 N.M. 58, 878 P.2d 1007. Private conversation between judge and individual juror held not reversible error. - No reversible error exists where the judge privately confers with prospective individual jurors if the conversation was invited by defense counsel and did not prejudice defendant. State v. Henry, 1984-NMCA-040, 101 N.M. 277, 681 P.2d 62, rev'd on other grounds, 1984-NMSC-023, 101 N.M. 266, 681 P.2d 51. Although there is a presumption of prejudice when there is ex parte communication between the trial court and a juror, this presumption does not apply if the ex parte communication takes place with the knowledge and consent of the defendant prior to the ex parte communication. State v. Pettigrew, 1993-NMCA-095, 116 N.M. 135, 860 P.2d 777. Where the judge advised the prosecutor and defense counsel regarding his meeting with a juror and the subject matter was not relevant to the substance of the case, no improper communication occurred. State v. Baca, 1997-NMSC-059, 124 N.M. 333, 950 P.2d 776. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 1098 to 1136. Giving, in accused's absence, additional instruction to jury after submission of felony case, 94 A.L.R.2d 270. Right of accused to be present at suppression hearing or at other hearing or conference between court and attorneys concerning evidentiary questions, 23 A.L.R.4th 955. Validity of jury selection as affected by accused's absence from conducting of procedures for selection and impaneling of final jury panel for specific case, 33 A.L.R.4th 429. 23A C.J.S. Criminal Law §§ 1165, 1395 et seq.