N.M. R. Crim. P. Dist. Ct. 5-605
N.M. R. Crim. P. Dist. Ct. 5-605
Committee commentary. - Although titled "Jury trial", this rule does not deal exclusively with the right to a jury trial but with procedure for both jury and nonjury cases. For comments on the right to a jury trial, see the commentary to Rule 5-301 NMRA. For the procedure governing the selection of jurors, see Rule 5-606 NMRA and Sections 38-5-13 and 38-5-14 NMSA 1978.
Under prior law, the defendant could waive a jury trial for a "high court" misdemeanor by proceeding to trial before the court without a jury and without making any objections. State v. Marrujo, 79 N.M. 363, 443 P.2d 856 (1968). Under Paragraph A of this rule, all trials in the district court, except for petty misdemeanors, are by jury unless the defendant waives the jury. The state may refuse to consent to a waiver by the defendant and thereby require the matter to be tried by a jury. See State ex rel. Gutierrez v. First Judicial Dist. Ct., 52 N.M. 28, 191 P.2d 334 (1948).
Paragraph B of this rule was added in 1979. The contents of this paragraph were formerly found in Paragraph E of Rule 5-606. This paragraph is derived from Paragraph B of Rule 1-047 and is consistent with American Bar Association Standards Relating to Trial by Jury, Section 2.7 (Approved Draft 1968).
Paragraph C of this rule was added in 1979 to clarify when alternate jurors are to be discharged.
Paragraph D of this rule covers the procedure for judgment in a nonjury case. The court must make a finding of guilty or not guilty. If the finding is guilty, requested findings of fact and conclusions of law may be submitted by the parties within ten (10) days or such time as the court designates. The court is then required to file a decision containing findings of fact and conclusions of law, presumably before announcing the judgment and sentence. Cf. Paragraph C of Rule 5-614 and Paragraph A of Rule 5-701. Compare, Rule 1-052.
ANNOTATIONS The 2009 amendment, approved by Supreme Court Order No. 09-8300-042, effective November 30, 2009, in Paragraph C, after "the death penalty may be imposed" added "and a single jury is used for trial and sentencing,".
For right to trial by jury, see N.M. Const., art. II, § 12. For drawing and empaneling jurors, see Section 38-5-1 NMSA 1978 et seq. For forms on waiver of trial by jury - misdemeanor offense and certification and waiver, see Rule 9-502 NMRA. Alternative sentencing procedure in death penalty cases. - The Supreme Court amended Rule 5-605 NMRA, effective November 30, 2009, to provide the option of using two separate juries, one to determine innocence or guilt and one to determine sentencing, for all new and pending death penalty cases in district court alleging crimes committed before July 1, 2009, in order to address concerns regarding the death penalty system in New Mexico in the remaining death penalty cases. In re Death Penalty Sentencing Jury Rules, 2009 -NMSC-052, 147 N.M. 302, 222 P.3d 674. Waiver of right to jury trial requires consent of prosecutor and the approval of the trial court. State v. Mares, 1979-NMCA-049, 92 N.M. 687, 594 P.2d 347, cert. denied, 92 N.M. 675, 593 P.2d 1078. Waiver of jury trial valid despite defendant's claim of duress. - Defendant's waiver of a jury trial, after the jury was excused and her trial was rescheduled because she had arrived late in court, was valid, notwithstanding her argument that she was under duress to waive a jury trial because the court had set bail she would not be able to meet and would therefore be incarcerated prior to trial. State v. Dean, 1986-NMCA-093, 105 N.M. 5, 727 P.2d 944. Claim that written waiver required not reviewable for first time on appeal. - Where the defendant does not claim in his motion for a new trial that his waiver of a 12-person jury was ineffective because not in writing, and where his claim that a written waiver was required is asserted for the first time on appeal, the claim is not entitled to appellate review because the claim that the waiver be in writing is not a question which can be raised for the first time on appeal. State v. Pendley, 1979-NMCA-036, 92 N.M. 658, 593 P.2d 755. Replacing juror with alternate. - When a seated juror is excused and replaced by an alternate juror prior to deliberations, the verdict is not affected, and the defendant is considered to have been tried by the same jury. State v. Pettigrew, 1993-NMCA-095, 116 N.M. 135, 860 P.2d 777. Post-submission substitution of an alternate is error that creates a presumption of prejudice; the state must show under the circumstances of a particular case that the trial court took adequate steps to ensure the integrity of the jury process. State v. Sanchez, 2000-NMSC-021, 129 N.M. 284, 6 P.3d 486. Trial court did not abuse its discretion in declaring a mistrial after the disclosure of a deliberating juror's bias and where the only proposed alternative was a post-submission substitution. - Where defendant was charged and tried in magistrate court for misdemeanor DWI and failure to maintain his lane, and where the magistrate court declared a mistrial after a juror was discharged for stating that she could not be impartial after deliberations had begun and the alternate jurors had already been dismissed from the courtroom, the district court, in a de novo proceeding, did not err in denying defendant's motion to dismiss on double jeopardy grounds, because it was not an abuse of discretion for the magistrate court, after the disclosure of a deliberating juror's bias, to declare a mistrial due to manifest necessity where the proposed alternative, a post-submission substitution, would have created a presumption of prejudice and would not have alleviated or even addressed the potential taint to the remaining jurors. State v. Vanderdussen, 2018-NMCA-041. An alternate juror's presence in the jury room during deliberations creates a presumption of prejudice which the state may attempt to overcome. State v. Coulter, 1982-NMCA-106, 98 N.M. 768, 652 P.2d 1219. Waiver of objection to juror's participation in trial. - Since the defendants' failed to question a juror during voir dire after she revealed that her sister worked for one of the prosecutors, it was not an abuse of discretion for the court to refuse the defendants' request to replace the juror with an alternate after the jury had retired to deliberate, or to deny their motion for a new trial. State v. Sanchez, 1995-NMSC-053, 120 N.M. 247, 901 P.2d 178. Complaining witness not entitled to jury trial. - A complaining witness in a criminal case where the charge is assault and battery cannot demand a jury trial and is not entitled to same. The defendant is an interested party and also the state. There is no statutory law or provision in the constitution that provides that a complaining witness is entitled to a trial by jury. 1953-54 Op. Att'y Gen. No. 5686 (opinion rendered under former law). Waiver of jury must be consented to by state. - A defendant or defendants may waive trial by jury but said waiver cannot be accepted unless it is consented to by the state. 1953-54 Op. Att'y Gen. No. 5686 (opinion rendered under former law). Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law §§ 1056, 1070 to 1075, 1078 to 1080. Waiver, after not guilty plea, of jury trial in felony case, 9 A.L.R.4th 695. Presence of alternate juror in jury room as ground for reversal of state criminal conviction, 15 A.L.R.4th 1127. Paternity proceedings: right to jury trial, 51 A.L.R.4th 565. Threats of violence against juror in criminal trial as ground for mistrial or dismissal of juror, 3 A.L.R.5th 963. Stranger's alleged communication with juror, other than threat of violence, as prejudicial in federal criminal prosecution, 131 A.L.R. Fed. 465. 50A C.J.S. Juries §§ 7 to 80, 95 to 222.