Improper Jury Communications in New Mexico: Rule 5-612(D)(3) Does Not Excuse Defendant’s Absence, and Presumed Prejudice Is Rebutted When the Court Merely Refers Jurors Back to Existing Instructions

Case: State v. Freeman, Supreme Court of New Mexico (June 4, 2026)  |  Charge: Criminal sexual penetration in the second degree (CSP II), NMSA 1978, Section 30-9-11(E)(1) (2009)

1. Introduction

State v. Freeman addresses a recurring trial problem: how courts may respond to deliberating jurors’ legal questions when the defendant is not present. Joshua Shane Freeman (Defendant-Petitioner) was convicted of CSP II. During deliberations, the jury sent two notes asking (1) whether CSP is comparable to statutory rape and (2) the legal definition of “physical force.” The trial court, after conferring with counsel, responded by directing jurors back to the instructions already given. Defendant was not present for the discussions or when the responses were sent; defense counsel purported to waive Defendant’s presence.

The Court of Appeals held the communications were improper, triggering a presumption of prejudice, but concluded the State overcame that presumption and affirmed. The Supreme Court granted review to resolve disputes about: (a) whether these jury-note exchanges fall within exceptions to the right to be present under Rule 5-612(D)(3) NMRA or Rule 5-610(D) NMRA, and (b) if not, what satisfies the State’s burden to affirmatively rebut presumed prejudice.

2. Summary of the Opinion

The Supreme Court agreed with the Court of Appeals that Defendant’s right to be present was violated because the communications were not covered by any rule-based exception. That violation triggered a rebuttable presumption of prejudice under New Mexico law. The Court nevertheless affirmed the conviction because the State affirmatively showed the communications did not affect the verdict: the judge’s written responses were confined to directing the jury back to the already-settled jury instructions, the exchanges were on the record and in counsel’s presence, and Defendant had been present for settling the instructions.

3. Analysis

3.1. Precedents Cited

Constitutional foundations of the right to be present

• State v. Padilla, 2002-NMSC-016: reaffirmed that felony defendants have a constitutional right to be present at all critical stages of trial, rooted in the Sixth and Fourteenth Amendments and Article II, Section 14 of the New Mexico Constitution. Freeman uses Padilla to frame the right as personal and constitutionally protected.
• State v. Garcia, 1980-NMSC-132, and Pointer v. Texas, 380 U.S. 400 (1965): cited to emphasize incorporation of Sixth Amendment trial rights to the states. They supply constitutional weight for cautious interpretation of procedural exceptions.

Interpreting Rule 5-612 and its exceptions

• State v. Sloan, 2019-NMSC-019: pivotal to the Court’s reading of Rule 5-612(D)(3). Sloan applied the exception in a narrow setting (exclusion from a pretrial expert-qualification hearing). Freeman treats Sloan as linking Subparagraph (D)(3) to a specific type of proceeding identified in Rule 5-612(A)—a “hearing or conference”—and refuses to reclassify “communications between the court and the trial jury” as that type of proceeding.
• Allen v. LeMaster, 2012-NMSC-001: provided the standard of review—de novo—for interpretation of criminal rules.

Rule 5-610, “ministerial matters,” and improper communications

• State v. Lindwood, 1968-NMCA-063: discussed as historical context for Rule 5-610 (jury recall and corrective instructions), leading to later amendments addressing communications without recalling the jury.
• State v. McClure, 1980-NMCA-067: serves two roles in Freeman. First, it is cited for what “in open court” means in the written-communication context. Second (and more importantly), the Supreme Court adopts and elevates the “restatement of existing instructions” principle referenced in McClure, converting what Defendant called dicta into an operative rule for rebutting presumed prejudice.
• State v. Jojola, 2006-NMSC-048: supplies the governing framework for when improper communications trigger a presumption of prejudice and what counts as “ministerial/housekeeping.” Freeman relies on Jojola to classify matters of juror comfort or simple administrative requests as ministerial, while communications about deliberations are not.
• State v. Aguilar, 2019-NMSC-017: reinforces that communications tied to deliberations are not ministerial and explains why rebutting prejudice is difficult (limits on probing juror deliberations). Freeman contrasts the egregious, off-record oral exchange in Aguilar with the on-record written responses in this case.
• State v. Cortez, 2007-NMCA-054: cited for the distinction between communications related to the subject matter of the case (non-ministerial) and those that are merely administrative (ministerial).

Harmlessness, presumption, and the State’s burden

• Hovey v. State, 1986-NMSC-069: provides the controlling burden statement—once an improper communication is shown, the State must make an affirmative showing on the record that the communication did not affect the verdict. The opinion also notes (in a footnote context) that trial courts must ensure any waiver is voluntary, knowing, and intelligent.
• State v. Costales, 1933-NMSC-001: early articulation of the principle that relief is not required if it satisfactorily appears the communication was harmless and had no effect on the verdict.
• State v. Orona, 1979-NMSC-011; State v. Brugger, 1972-NMCA-102; and State v. McClure, 1980-NMCA-067: cited as examples where the State failed to rebut prejudice due to insufficient record support or problematic communication content/timing.
• State v. Mann, 2002-NMSC-001: cited for Rule 11-606(B) NMRA, limiting juror testimony about deliberations and thereby explaining why rebuttal often must come from objective contextual factors rather than juror affidavits.
• State v. Alvarez-Lopez, 2004-NMSC-030: invoked by Defendant, but the Court clarifies Defendant misread it. Freeman emphasizes that harmlessness analysis in this setting focuses on the communication’s effect on the verdict, not “overwhelming evidence” of guilt and not speculation about a defendant’s hypothetical participation.

Jury instructions as a reliability backstop

• State v. Ortega, 2014-NMSC-017: uniform jury instructions are presumed correct, supporting the conclusion that referring jurors back to them is unlikely to distort deliberations.
• State v. Munoz, 2006-NMSC-005: no error in refusing to define a commonly understood term, supporting the Court of Appeals’ reasoning (endorsed by the Supreme Court) that “physical force” likely carried a common meaning absent a special legal definition in the instructions.

3.2. Legal Reasoning

(a) Rule 5-612(D)(3) does not cover court–jury communications

The State’s primary interpretive argument was that the jury’s notes posed “questions of law,” so the response process should fit within Rule 5-612(D)(3), which says a defendant “need not be present” when the proceeding involves only a conference or hearing upon a question of law. The Court rejected that move by reading Rule 5-612’s structure as intentionally separating: (i) “all hearings and conferences,” from (ii) “all communications between the court and the trial jury.”

Using State v. Sloan as a template, the Court held Subparagraph (D)(3) is tethered to the “hearings and conferences” category, not to the “court–jury communications” category. The Court underscored practical dangers unique to judge–jury exchanges during deliberations (judicial influence, being the “last voice” jurors hear, potential effects on tactics such as plea decisions), and it invoked the constitutional stature of the presence right to justify a narrow reading of exceptions.

(b) Rule 5-610(D) “ministerial matters” exception does not apply

Turning to Rule 5-610(D), the Court reaffirmed that communications must generally occur “in open court” in the presence of defendant and counsel unless the communication is purely “ministerial.” Drawing on State v. Jojola, State v. Aguilar, and State v. Cortez, the Court held that juror questions about: (1) how to conceptualize the charged offense compared to statutory rape, and (2) the meaning of “physical force,” go to the elements and legal framework of the case and therefore are not housekeeping. Because no valid personal waiver was established on this record, Defendant’s exclusion violated the right to be present and triggered the presumption of prejudice.

(c) Rebutting the presumption: adoption of the “referral back to instructions” rule

The opinion’s most consequential doctrinal move is its treatment of State v. McClure. The Court acknowledges McClure only discussed other jurisdictions’ view that prejudice may be overcome when the improper communication merely restates an instruction already given, and that New Mexico had not directly adopted the principle. It adopts it now:

• If the record affirmatively shows the improper communication did not add to, alter, or comment upon the law given to the jury but only referred jurors back to the settled instructions, that showing can rebut the presumption of prejudice because the communication does not affect the verdict.

The Court then anchored that conclusion in objective context: the responses were written, on the record, crafted with counsel, and confined to directing jurors to the existing instructions; Defendant had been present for settling and hearing those instructions; and uniform instructions are presumed correct (State v. Ortega), with no requirement to define commonly understood terms (State v. Munoz). The Court also rejected the notion (argued by Defendant via a misreading of State v. Alvarez-Lopez) that harmlessness turns on hypothesizing what Defendant might have said. Under Hovey v. State and State v. Costales, the relevant question is whether the communication itself affected the verdict.

3.3. Impact

• Narrower reach of Rule 5-612(D)(3): Trial and appellate courts in New Mexico now have clear instruction that Subparagraph (D)(3) does not provide a categorical “question of law” carve-out for jury-note practice. Court–jury communications remain a protected category requiring presence unless another valid mechanism applies (e.g., valid personal waiver under Rule 5-610(D)).
• Clarified “ministerial” boundary: Juror questions about offense elements, definitions tied to the charge, or comparisons that bear on legal characterization are not ministerial. This reinforces a protective approach in deliberation-phase communications.
• New rebuttal pathway for the State: The prosecution can rebut the presumption of prejudice more predictably where the judge’s response is demonstrably limited to referring jurors back to already-given instructions—especially when the exchange is on the record and with counsel present.
• Incentives for best practices: The decision rewards a clean record: written notes filed, counsel consulted on the record, and responses that avoid elaboration. Conversely, it highlights the continuing peril of off-record oral exchanges (as in State v. Aguilar) and suggests they will remain difficult to salvage on appeal.
• Waiver remains a live risk: Although the Court did not resolve the scope of counsel-only waiver here (noting the record insufficiency and referencing Hovey v. State), the opinion implicitly cautions trial courts to secure valid waivers through appropriate on-record inquiry to avoid automatic presumption litigation.

4. Complex Concepts Simplified

• “Right to be present”: A defendant’s constitutional entitlement to attend critical trial moments, including communications that can influence the jury’s understanding or application of the law.
• “Critical stage”: A step in the process where the defendant’s rights may be substantially affected. New Mexico’s rules identify certain proceedings categorically, including “all communications between the court and the trial jury.” (Rule 5-612(A) NMRA)
• “Presumption of prejudice”: When an improper judge–jury communication occurs, the law assumes it may have harmed the defendant; the State must disprove that harm.
• “Affirmative showing on the record”: The State must point to objective record facts demonstrating the communication did not affect the verdict—typically the content, timing, method (written/oral), whether counsel participated, and whether the response added anything new.
• “Ministerial/housekeeping matter”: Administrative issues unrelated to the merits (e.g., juror comfort, scheduling, requesting an extra copy of instructions). Questions about elements of the offense are not ministerial.
• Why courts can’t just ask jurors what happened: Rule 11-606(B) NMRA (as discussed in State v. Mann) generally blocks juror testimony about deliberations and mental processes, so appellate review often depends on the objective record rather than juror explanations.

5. Conclusion

State v. Freeman strengthens procedural protections around deliberation-phase judge–jury communications by refusing to expand Rule 5-612(D)(3) into a broad “questions of law” exception and by reaffirming that substantive juror questions are not “ministerial” under Rule 5-610(D). At the same time, it establishes a pragmatic, record-focused rule for affirming convictions despite improper communications: the State can rebut presumed prejudice when it affirmatively shows the judge’s response merely referred jurors back to the previously settled instructions, without adding new legal content or commentary.