A jury may be polled when the jury has been instructed on lesser-included offenses and cannot unanimously agree on any of the offenses submitted. Rule 44(d); O'Kelly v. State, 94 N.M. 74, 607 P.2d 612 (1980); State v. Castrillo, 90 N.M. 608, 566 P.2d 1146 (1977). The procedure followed by the trial court accords with that mandated by our opinion in Castrillo, supra.
See State v. Moore, 2004-NMCA-035, ¶ 12, 135 N.M. 210, 86 P.3d 635; State v. Galaz, 2003-NMCA-076, ¶ 4, 133 N.M. 794, 70 P.3d 784. {11} For his implied acquittal and double jeopardy arguments, Munoz relies on State v. Castrillo, 90 N.M. 608, 566 P.2d 1146 (1977), State v. Wardlow, 95 N.M. 585, 624 P.2d 527 (1981), and Rule 5-611(D) NMRA. We discuss Castrillo and Wardlow at the outset.
State v. Segura, 2002-NMCA-044, ¶ 7, 132 N.M. 114, 45 P.3d 54. {11} Defendant relies on State v. Castrillo, 90 N.M. 608, 566 P.2d 1146 (1977), overruled on other grounds by State v. Wardlow, 95 N.M. 585, 588, 624 P.2d 527, 530 (1981), and Rule 5-611(D) NMRA to support his argument that his conviction of CSP III must be set aside because the first trial ended in an implied acquittal of CSP II and his right to be free from double jeopardy bars successive prosecutions of all degrees of the offense following an acquittal of any degree. Relying on the same authority and our recent decision in State v. Garcia, 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, we rule that Defendant's double jeopardy rights were violated when he was tried for CSP II at a second trial.
Phillips , 2017-NMSC-019, ¶ 6, 396 P.3d 153. We acknowledge, as the Court of Appeals has, that this polling requirement was drafted based significantly on our holding in State v. Castrillo , 1977-NMSC-059, ¶¶ 5, 14, 90 N.M. 608, 566 P.2d 1146.See State v. Garcia , 2005-NMCA-042, ¶ 26, 137 N.M. 315, 110 P.3d 531 ("It is apparent that Rule 5-611(D) was likely drafted, for the most part, based on the committee’s reading of Castrillo .").
{1} Defendant Darryl Paul appeals the district court's denial of his motion to dismiss on double jeopardy grounds the charged offense of homicide by vehicle following a jury trial that produced no verdict. Defendant contends that, under State v. Castrillo , 1977-NMSC-059, 90 N.M. 608, 566 P.2d 1146, he may not be retried for homicide by vehicle because the district court declared a mistrial based on manifest necessity due to jury deadlock without creating a "clear record[,]" State v. Phillips , 2017-NMSC-019, ¶ 16, 396 P.3d 153, as to whether the jury was deadlocked on the greater offense of homicide by vehicle, NMSA 1978, § 66-8-101 (2004), or on the lesser included offense of driving under the influence of intoxicating liquor, NMSA 1978, § 66-8-102 (2010). Although we agree that there was no manifest necessity for a mistrial on homicide by vehicle, we conclude that Castrillo does not apply in this case because Defendant consented to the district court's mistrial declaration, and we therefore affirm.
See United States v. MacQueen, supra, 596 F.2d at 83 (holding that "statements [of jurors offered to impeach an announced deadlock] cannot be considered by the court"). See also Fitzgerald v. Lile, supra, 732 F. Supp. at 789; McKay v. Raines, supra, 405 F. Supp. at 365; Whiteaker v. State, supra, 808 P.2d at 273 n. 4; State v. Castrillo, 90 N.M. 608, 610, 566 P.2d 1146, 1148 (1977). Therefore, the factual posture in which this issue must be decided is dictated by the events prior to discharge, specifically, the jury's announcement on three separate occasions that it was unable to reach an agreement.
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, 118 P.3d 752, we conclude that Defendant's retrial for CSCM does not violate double jeopardy.
See State v. McCarter, 93 N.M. 708, 710, 604 P.2d 1242, 1244 (1980). In State v. Castrillo, 90 N.M. 608, 566 P.2d 1146 (1977), we considered the double jeopardy implications of the failure to return a verdict. We noted that "the approach taken by a jury in reaching a decision should not be called into question.
The record merely reflects that in the first trial a mistrial was declared because the jury was unable to reach a verdict and does not disclose that defendant opposed the declaration of a mistrial. Defendant urges us to adopt the rule enunciated by the New Mexico court in State v. Castrillo, 90 N.M. 608, 611, 566 P.2d 1146, 1149 (1977), as follows: Henceforth, when a jury announces its inability to reach verdict in cases involving included offenses, the trial court will be required to submit verdict forms to the jury to determine if it has unanimously voted for acquittal on any of the included offenses.
[Citation.] The same result should also obtain if a jury has voted unanimously for acquittal on any of several included offenses." ( State v. Castrillo (1977) 90 N.M. 608 [ 566 P.2d 1146, 1149].) In New York, partial verdicts are expressly allowed by statute.