N.M. R. Crim. P. Dist. Ct. 5-610
N.M. R. Crim. P. Dist. Ct. 5-610
Committee commentary. - This rule incorporated the holding in State v. Lindwood, 79 N.M. 439, 444 P.2d 766 (Ct. App. 1968), that it was not prejudicial error for the court to recall the jury and give it an instruction previously overlooked after the charge had been given and arguments of counsel made.
In addition to authorizing additional instructions, Paragraph A of this rule specifically allows the reading of testimony to the jury. State v. Montoya, 86 N.M. 316, 523 P.2d 814 (Ct. App. 1974).
Paragraph D of this rule has been added to clarify the procedure for communications between the judge and the jury, after the jury has retired to consider the verdict, without recalling the jury. See State v. McClure, 94 N.M. 440, 612 P.2d 232 (Ct. App. 1980); State v. Hinojos, 95 N.M. 659, 625 P.2d 588 (Ct. App. 1980); State v. Saavedra, 93 N.M. 242, 599 P.2d 395 (Ct. App. 1979); State v. Orona, 92 N.M. 450, 589 P.2d 1041 (1979); State v. Brugger, 84 N.M. 135, 500 P.2d 420 (Ct. App. 1972); State v. Beal, 48 N.M. 84, 146 P.2d 175 (1944). In addition, provision has been made for those communications which do not relate to issues in the case at trial to be made without having the defendant present, provided the defendant's presence has not been requested by his attorney. Rule 43 of the Federal Rules of Criminal Procedure, regarding the presence of the defendant, has been interpreted to allow such communications without the presence of the defendant. United States v. Mesteth, 528 F.2d 333 (8th Cir. 1976); United States v. Reynolds, 489 F.2d 4 (6th Cir. 1973), cert. denied, 416 U.S. 988, 40 L. Ed. 2d 766, 94 S. Ct. 2395 (1974); United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 35 L. Ed. 2d 706, 93 S. Ct. 1443 (1973); United States v. Alper, 449 F.2d 1223 (3d Cir. 1971), cert. denied, 405 U.S. 988, 31 L. Ed. 2d 453, 92 S. Ct. 1248, reh. denied, 406 U.S. 911, 31 L. Ed. 2d 822, 92 S. Ct. 1605 (1972); and United States v. Stone, 452 F.2d 42 (8th Cir. 1971).
All communications between the judge and jury should be made a part of the record, whether made in the presence of defense counsel and defendant or not.
While a case is pending, a judge may not entertain any ex parte communications from any party, from counsel for any party, from any advocacy group on behalf of any party, or with any member of the probation department except as allowed by law. Any authorized ex parte communication between the court and the probation department must be in writing.
ANNOTATIONS The 2005 amendment, approved by Supreme Court order No. 05-8300-011, effective September 1, 2005, rewrote Paragraph D relating to presence of the defendant during communications between the court and jury. The court has a duty to inform the jury regarding the option of ceasing deliberations. - If the jury reveals that it is having difficulty arriving at a unanimous verdict, and the jury is under the mistaken impression that it is required to continue its deliberations indefinitely until a unanimous verdict is achieved, the trial court has a mandatory duty to inform the jury that it may cease deliberations and not arrive at a unanimous verdict if it is indeed deadlocked. State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314. Failure to answer jury's question regarding the option of a hung jury. - Where the trial court instructed the jury pursuant to UJI 14-6101 NMRA; after the jury had begun deliberations, the jury asked the court whether a non-verdict or a hung jury was an option and indicated that a non-verdict or a hung jury was not an option under the general verdict instruction; the court never responded to the jury's question, even though the court had promptly responded to all other inquiries from the jury; the jury did not report that it was deadlocked or reveal the status of its deliberations in terms of numerical division; and the jury returned a guilty verdict, the court's failure to issue a supplementary instruction in answer to the jury's instruction coerced the jury into reaching a verdict, requiring a new trial. State v. Juan, 2010-NMSC-041, 148 N.M. 747, 242 P.3d 314. Communication between court and jury. - Where the jury, through the foreperson or a note, in the presence of the defendant and all counsel, but not in the presence of the jury, informs the court of its numerical split with a minority favoring a not guilty verdict, and the court's instruction to the jury in regard to further deliberations is not in open court, is oral, and is carried out through the foreperson who returns to the jury room and orally relays the court's instruction to the jury, the communication constitutes fundamental error. State v. Cortez, 2007-NMCA-054, 141 N.M. 623, 159 P.3d 1108, cert. granted, 2007-NMCERT-005. Improper communication. - Where a juror approached the trial judge in chambers to complain that another juror had announced that she did not believe the state's expert testimony and that she would not change her mind about defendant's innocence and the judge instructed the juror to "just report that you are hung" and to "do whatever you have to do", the conversation related to the case and was an improper communication that raised a presumption of prejudice. State v. Jojola, 2006-NMSC-048, 140 N.M. 660, 146 P.3d 305. Juror's request of bailiff not prejudicial where no response given. - Where juror, during course of deliberations, requested definition of a phrase from a bailiff, but no definition was given, and since none would have been given in any event, the trial court did not err in finding that the presumption of prejudice had been overcome. State v. Mankiller, 1986-NMCA-053, 104 N.M. 461, 722 P.2d 1183. Rule does not require that requested instructions be given. - Although this rule allows the trial court the discretion to give the jury additional or corrected instructions after it retires, it does not require that the requested instructions be given. State v. Montano, 1980-NMCA-163, 95 N.M. 233, 620 P.2d 887. Court may give additional instruction without permitting more argument. - Where an additional instruction correctly stated the law and was supported by the evidence, it was not an abuse of discretion for the trial court to give the instruction without permitting more argument or giving defendant's requested instruction. State v. Wall, 1980-NMSC-034, 94 N.M. 169, 608 P.2d 145. Additional jury instructions should be limited to offenses within indictment, because the indictment is the means by which a defendant learns of the charges he is expected to meet. State v. Wall, 1980-NMSC-034, 94 N.M. 169, 608 P.2d 145. Instruction regarding culpability of accessory does not go beyond indictment. - Where the distinction between a principal and an accessory has been abolished, and defendant has been charged as a principal, an additional instruction given in response to a question from the jury regarding the culpability of an accessory does not go beyond the indictment or allege a new theory of liability. State v. Wall, 1980-NMSC-034, 94 N.M. 169, 608 P.2d 145. Instruction correcting elements instruction. - Where defendant was charged with neglect of defendant's developmentally disabled adult child under the Residents Abuse and Neglect Act; there was no uniform jury instruction for violation of the Act; the trial court gave an elements instruction on the neglect charge and UJI 14-5120 NMRA as a separate instruction; and in response to a jury request for clarification of the mistake-of-fact instruction, which appeared to conflict with the elements instruction, the court instructed the jury, in a hand-written note, to add the mistake-of-fact element to the elements instruction, the manner in which the instructions laid out the elements was adequate for jury instruction. State v. Greenwood, 2012-NMCA-017, 271 P.3d 753, cert. denied, 2012-NMCERT-001. Defendant's recall for issue-related communications clearly implied. - The second sentence of Paragraph D clearly implies that the defendant must be recalled when a communication relating to issues of the case at trial is made. This distinction reflects the well-settled law of New Mexico that it is improper for the trial court to have any communication with the jury concerning the subject matter of the court proceedings except in open court and in the presence of the accused and his counsel. Hovey v. State, 1986-NMSC-069, 104 N.M. 667, 726 P.2d 344. Presumption of prejudice arises whenever an improper communication with the jury as to the subject matter of the proceedings in the defendant's absence occurs, and the state bears the burden of rebutting that presumption by making an affirmative showing on the record that the communication did not affect that jury's verdict. Hovey v. State, 1986-NMSC-069, 104 N.M. 667, 726 P.2d 344. Rule as to inquiry as to numerical division given prospective application. - Prospective application is given to rule that inquiry into the numerical division of jurors is reversible error. Inquiries into numerical division occurring prior to the date of this decision will be reviewed under the approach taken in State v. Nelson, 1958-NMSC-018, 63 N.M. 428, 321 P.2d 202; Pirch v. Firestone Tire & Rubber Co., 1969-NMCA-044, 80 N.M. 323, 455 P.2d 189, cert. denied, 80 N.M. 316, 454 P.2d 973. Instructions related to jury's inability to reach verdict. - When a statement is submitted to the court by the jury during deliberations concerning the inability of the jury to arrive at a verdict, together with a disclosure of the numerical division, the judge not only can, but should, communicate with the jury and can do so if the communication leaves with the jury the discretion whether or not it should deliberate further. The court can inform the jury that it may consider further deliberations, but not that it must consider further deliberations. State v. McCarter, 1980-NMSC-003, 93 N.M. 708, 604 P.2d 1242. Giving of additional instructions is within the trial court's discretion. State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940, cert. denied, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271 (1971) (decided under former law). That instructions were given four hours and 15 minutes and four hours and 45 minutes respectively after deliberation does not in and of itself give rise to error. State v. Cruz, 1974-NMCA-056, 86 N.M. 341, 524 P.2d 204. Use of "we" in requesting jury to arrive at verdict. - It cannot be said, as a matter of law, that the inadvertent use of "we" in requesting the jury to arrive at a verdict ("So, would you go on back and we'll see if we can't arrive at a verdict") had the effect of coercing and hastening the jury in its deliberation and invaded the province of the jury. State v. Cruz, 1974-NMCA-056, 86 N.M. 341, 524 P.2d 204. Rehearing portion of witness' testimony. - Where there is a doubt in the minds of jurors as to what a witness said, it cannot be prejudicial, absent some unusual circumstance, to have that doubt removed by a rehearing of his testimony. Therefore, where jury was unclear as to whether witness said defendant ran through a door, or from a door, trial court did not abuse its discretion by allowing jury to rehear a portion of the witness' testimony. State v. Montoya, 1974-NMCA-044, 86 N.M. 316, 523 P.2d 814. Jury listening to tape recording during deliberations not prejudicial. State v. Fried, 1978-NMCA-097, 92 N.M. 202, 585 P.2d 647, cert. denied, 92 N.M. 260, 586 P.2d 1089. Communications regarding juror's inability to speak English. - A case was remanded for the trial court to certify the record as to the details of any communications between the court and jury as to a jury member not understanding English, and to conduct an evidentiary hearing into whether the state could overcome a presumption of prejudice from the defendant's absence during these communications, and to determine whether the defendant was accorded his right to a jury of 12. Irrespective of the proper preservation of error by the defendant, it was the duty of the trial court to make a record and rule upon any possible miscarriage of justice that could have constituted fundamental error. State v. Escamilla, 1988-NMSC-066, 107 N.M. 510, 760 P.2d 1276. Fact trial court calls jury's attention to time and expense involved in the trial does not in and of itself give rise to error. State v. Cruz, 1974-NMCA-056, 86 N.M. 341, 524 P.2d 204. Additional instruction found not erroneous. - The fact that the additional language stating: "If you reach a verdict on one of the counts you should return a verdict on that count" is not part of UJI Crim. 16.2 (now withdrawn) and the possibility that the trial court may have been anxious to reach a verdict, does not make use of the additional language erroneous. State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940, cert. denied, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271 (1971) (decided under former law). Defendant need not be present in court in order to waive his right to be present. Hovey v. State, 1986-NMSC-069, 104 N.M. 667, 726 P.2d 344. 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 Crim. P. Rule 47(b)(1) (now Rule 5-612 NMRA). Hovey v. State, 1986-NMSC-069, 104 N.M. 667, 726 P.2d 344. Evidence insufficient to show valid waiver of right to be present during jury communications. - Where the record indicates that the trial court accepted defense counsel's statement that "I would waive his defendant's presence at this time" without determining whether defense counsel was waiving the right or whether defendant (who was in custody) voluntarily was doing so through his attorney, the record is insufficient to show a valid waiver of the right to be present during jury communications, defendant's conviction will be reversed and the case remanded for a new trial. Hovey v. State, 1986-NMSC-069, 104 N.M. 667, 726 P.2d 344. Am. Jur. 2d, A.L.R. and C.J.S. references. - 21 Am. Jur. 2d Criminal Law § 1117. Additional instruction to jury after submission of felony case, in accused's absence, 94 A.L.R.2d 270. Postretirement out-of-court communications between jurors and trial judge as grounds for new trial or reversal in criminal case, 43 A.L.R.4th 410. Prejudicial effect, in civil case, of communications between judges and jurors, 33 A.L.R.5th 205. Court's duty to inform counsel of proposed action on requested instructions under Rule 30 of Federal Rules of Criminal Procedure, 40 A.L.R. Fed. 495. Modern status of rule that court may instruct dissenting jurors in federal criminal case to give due consideration to opinion of majority (Allen charge), 44 A.L.R. Fed. 468. 23A C.J.S. Criminal Law § 1365 et seq.