VIGIL, Justice.
ORIGINAL PROCEEDING ON CERTIORARI
Christina P. Argyres, District Judge Bennett J. Baur, Chief Public Defender
B. Douglas Wood, III, Assistant Appellate Defender
Santa Fe, NM for Petitioner Hector H. Balderas, Attorney General
Marko David Hananel, Assistant Attorney General
Santa Fe, NM for Respondent
OPINION
VIGIL, Justice. {1} In this appeal we address two issues which arise when a jury is asked to render a verdict on a count that includes both greater and lesser offenses and it deadlocks in its deliberations on the greater offense. First, we clarify what is required of the district court under Rule 5-611(D) NMRA in polling the jury to determine on which offense the jury has deadlocked. We hold that a district court satisfies the requirements under Rule 5-611(D) when it has established a clear record as to which offense the jury is deadlocked. Strict compliance with the provisions of Rule 5-611(D) is not necessary to fulfill its purpose. Second, we recognize an ambiguity in our existing jury instructions regarding the order in which a jury must deliberate on counts which include both greater and lesser included offenses. To resolve this ambiguity and provide guidance to courts and litigants forthwith we adopt an approach to jury instructions that enables the jury to consider both the greater and lesser offenses under a count in any order it deems appropriate provided it return a verdict of not guilty on the greater offense before the court may accept a verdict on the lesser included offense.
I. BACKGROUND
{2} The State prosecuted Defendant, Kelson Lewis, under a five-count indictment. {5} Thirty minutes later, the jury sent a second note asking, "On the count of criminal sexual contact we are unable to reach unanimous decision of guilty or not guilty. Should we move on to a lesser charge of battery?" Again with the agreement of both defense counsel and the State, the district court responded with a note stating, "No. Have you reached a unanimous verdict on the other counts?" {6} Roughly thirty-five minutes later, the jury sent a note stating that it had completed its deliberations on the other counts. The district court then confirmed with the jury that it had completed its deliberations as to Count 1. {7} After calling the jury into court, the district court had the following exchange with the jury foreperson:
THE COURT: I'm also understanding none of the forms are signed as to Count 1. And based on the note you all sent, it's my understanding that there's no possibility for juror agreement on Count 1; is that correct?
THE JUROR: That is correct, Your Honor.
THE COURT: And I'm seeing heads shaking in the jury box that there's not -- you're unable to reach unanimous verdict. Is that correct[?]
THE JUROR: That's correct.
The district court stated it would declare a mistrial as to Count 1. The district court issued an order finding manifest necessity to declare a mistrial as to CSCM on the
whether the district court erred by instructing the jury that it could not consider the lesser included offense of battery if it was deadlocked on the greater offense of CSCM.
See State v.
Jade G., 2007-NMSC-010, ¶ 24,
141 N.M. 284,
154 P.3d 659 (acknowledging "that as a general rule, propositions of law not raised in the trial court cannot be considered sua sponte by the appellate court" but that we have done so for "questions of a general public nature affecting the interest of the state at large" (internal quotation marks and citations omitted)).
II. DISCUSSION
{9} We proceed to address two issues which lie at the core of the jury's inability to agree on a verdict of guilty or not guilty on the greater charge of CSCM. First, we address whether retrial of Defendant on the greater charge of CSCM would violate constitutional protections against double jeopardy—being tried twice for the same crime—where the district court did not strictly comply with the formal requirements of Rule 5-611(D) but clearly established on the record that the jury was deadlocked on CSCM. We then turn to the second issue regarding how a district court must instruct a jury on the manner and order in which it is to deliberate on a count with lesser included offenses. In addressing this second issue, we acknowledge an ambiguity in our existing jury instructions and address the problem by providing guidance to courts and litigants alike.
A. The District Court Did Not Abuse Its Discretion By Declaring a Mistrial on All Offenses Under Count 1 Where it Had Established a Clear Record That the Jury Was Deadlocked on the Greater Charge of CSCM
{10} "A double jeopardy challenge is a constitutional question of law which we review de novo." State v. Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747. Central to that question in this case is whether the district court erred by determining that the jury was deadlocked on the charge of CSCM based on the notes sent during deliberations and its exchange with the jury foreperson after deliberations. We review a district court's determination that the jury was deadlocked on a particular charge under a count with greater and lesser included offenses for an abuse of discretion. See State v. Phillips, 2017-NMSC-019, ¶¶ 1, 14, 396 P.3d 153; State v. Wardlow, 1981-NMSC-029, ¶¶ 12-13, 95 N.M. 585, 624 P.2d 527. "A trial court abuses its discretion when its decision is contrary to logic and reason." Roselli v. Rio Cmtys. Serv. Station, Inc., 1990-NMSC-018, ¶ 11, 109 N.M. 509, 787 P.2d 428. {11} The constitutional protection against double jeopardy prevents retrial of a crime after a jury has rendered a verdict of either guilty or not guilty as to that offense; on the other hand, a defendant may be retried if the jury is deadlocked or hung on that offense. State v. Collier, 2013-NMSC-015, ¶¶ 11, 14, 301 P.3d 370; Phillips, 2017- NMSC-019, ¶ 1. Because the protection against double jeopardy prevents a retrial of a crime where the jury has rendered a verdict, when a jury indicates that it is deadlocked on a count with lesser included offenses the district court must poll the jury in order to clearly establish on the record the precise offense on which the jury was deadlocked. Phillips, 2017-NMSC-019, ¶ 1.
Importantly, the judge must confirm that the jury did not unanimously agree that the defendant was not guilty of one or more of the included offenses because the constitutional protection against double jeopardy precludes the State from prosecuting the defendant for such offense(s) since the jury's unanimous agreement on a verdict of not guilty constitutes an acquittal.
Id. In such a count with greater and lesser included offenses, it can be difficult to determine on which offense the jury is deadlocked and which offenses, if any, it has unanimously agreed to acquit. The manner for making this determination is set forth in Rule 5-611(D) as follows:
If the jury has been instructed on one or more lesser included offenses, and the jury cannot unanimously agree upon any of the offenses submitted, the court shall poll the jury by inquiring as to each degree of the offense upon which the jury has been instructed beginning with the highest degree and, in descending order, inquiring as to each lesser degree until the court has determined at what level of the offense the jury has disagreed. If upon a poll of the jury it is determined that the jury has unanimously voted not guilty as to any degree of an offense, a verdict of not guilty shall be entered for that degree and for each greater degree of the offense.
{22} Before commencing its deliberations, the jury was instructed on two occasions by the district court that it should proceed to consideration of the lesser offense of battery if it had reasonable doubt as to Defendant's guilt of the greater offense of CSCM. First, consistent with UJI 14-6012, the district court gave the following instructions regarding Count 1:
[I]n this case as to the charge of criminal sexual contact of a minor contained in Count 1 there are three possible verdicts.
One, guilty of criminal sexual contact of a minor child under the age of 13; or, two, guilty of the battery; or, three, not guilty.
You must consider each of these crimes. You should be sure that you fully understand the elements of each crime before you deliberate further. You will then consider whether the defendant is guilty of the crime of criminal sexual contact of a minor. If you find him guilty of that crime, then that is the only form of verdict which is to be signed.
If you have a reasonable doubt as to his guilt of that crime, you would go on [to the] crime of battery. If you find him guilty of that crime, that is the only form of verdict which should be signed. But if you have a reasonable doubt as to his guilt of the crime of battery, then you should find him not guilty and sign only the not guilty form.
You may not find the defendant guilty of more than one of the
foregoing crimes. If you have reasonable doubt as to whether the defendant committed any one of the crimes, you must determine that he's not guilty of that crime. If you find him not guilty of all of these crimes in Count 1, you must return a verdict of not guilty as to this count.
Second, consistent with UJI 14-6002, the district court gave the following instruction between the elements of CSCM and battery: "If you should have a reasonable doubt as to whether the defendant committed the crime of criminal sexual contact of a minor, you must proceed to determine whether he committed the included offense of battery."
{23} Having received these instructions, the jury was nevertheless uncertain whether it was permitted to proceed to consideration of the lesser offense of battery when it was unable to agree on whether Defendant was guilty of the greater offense of CSCM and asked the court how to proceed. The district court considered the instruction modeled on UJI 14-6012, requiring the jury to proceed to consideration of the lesser offense if it had "reasonable doubt" as to Defendant's guilt on the greater offense, and understood "reasonable doubt" to mean the finding of Defendant not guilty of the greater offense. Given this understanding, the district court instructed the jury not to proceed to consideration of the lesser offense of battery if it was deadlocked on the greater offense of CSCM.
is not permitted to interfere with the jury's discretion to deliberate. . . .[T]he approach taken by a jury in reaching a decision should not be called into question. We agree with the policy that discourages, and in most instances prohibits, any inquiry or intrusion into the jury room." (internal quotation marks and citations omitted)). {28} Therefore, the disparate, yet equally rational, interpretations of UJIs 14-6002 and 14-6012 compel us to consider the "wide divergence of opinion on the issue of the order and manner in which a trial court instructs a jury to consider an indicted offense together with any appropriate lesser-included offenses." State v. Davis, 266 S.W.3d 896, 905 (Tenn. 2008) (internal quotation marks and citation omitted). We do so in order to provide clarity and, perhaps more importantly, consistency in the instructions to juries regardless of the type of offense or offenses at issue in any given trial.
"Although in Wardlow this Court stated that Castrillo was overruled to the extent that it was inconsistent with Wardlow, we now clarify that we perceive no inconsistency between those cases." Phillips, 2017-NMSC-019, ¶ 17 n.1 (citation omitted).
The issue of whether the district court in this case erred by instructing the jury that it could not proceed to consideration of the lesser offense of battery if deadlocked on the greater offense of CSCM is moot as to Defendant. Defendant did not object to this instruction and it would therefore be reviewed for fundamental error, the remedy for which is a new trial. State v. Cunningham, 2000-NMSC-009, ¶¶ 8, 10, 128 N.M. 711, 998 P.2d 176. We have concluded that Defendant may be retried on all offenses under Count 1 without violating double jeopardy. Therefore, granting a new trial would not provide Defendant with any actual relief and the issue is moot. Gunaji v. Macias, 2001-NMSC-028, ¶ 9, 130 N.M. 734, 31 P.3d 1008. For this reason, we will not address whether the district court's instructions in this case constituted fundamental error but will instead address the ambiguity and inconsistency in our UJIs as a matter of public importance. --------
1. Types of transitional instructions
{29} There are at least four types of "transitional instruction" used by various jurisdictions. Id.; see generally Jay M. Zitter, When Should Jury's Deliberation Proceed from Charged Offense to Lesser-Included Offense, 26 A.L.R. 5th 603 (1995) (collecting and discussing cases considering how a jury should be instructed on how and when to proceed to consideration of lesser included offenses). First, several A.2d 720, 723-24 (1989); State v. Labanowski, 117 Wash. 2d 405, 816 P.2d 26, 35-36 (1991) (en banc); State v. Truax, 151 Wis. 2d 354, 444 N.W.2d 432, 436-37 (Ct. App. 1989), cert. denied, 446 N.W.2d 286 (1989). {32} Finally, a few jurisdictions use the "optional approach," which allows the defendant to choose between an acquit first or an unable to agree instruction. See, e.g., Mont. Code Ann. § 46-16-607(3) (2017); Jones v. United States, 620 A.2d 249, 252 (D.C. Cir. 1993); United States v. Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984); Catches v. United States, 582 F.2d 453, 459 (8th Cir. 1978); United States v. Tsanas, 572 F.2d 340, 346 (2d Cir. 1978). The courts of several states have rejected this approach on the grounds that the choice of transitional instruction "should be based on legislative and judicial policy, not each defendant's or each trial court's discretion." Ferreira, 791 P.2d at 409; accord Labanowski, 816 P.2d at 35; Daulton, 518 N.W.2d at 722; Sawyer, 630 A.2d at 1071; Green, 80 P.3d at 96. We agree that the choice of transitional instruction should not be left to the discretion of the defendant and district court in each case, and accordingly reject Defendant's request that we adopt the optional approach. We therefore turn to consider the various arguments for and against acquit first, unable to agree, and modified acquit first instructions.
2. We adopt the modified acquit first approach
{33} Courts adopting acquit first instructions have generally considered these instructions to promote the jury's duty to carefully deliberate on the greater charge and reduce the chances of the jury compromising on the lesser offense. See, e.g., Sawyer, 630 A.2d at 1073 ("Anything less [than an acquit first instruction] dilutes the right of the state and the defendant to have the jury give its undivided attention and most serious deliberations to the offense with which the defendant is charged and flies in the face of the unanimity requirement[.]"); Boettcher, 505 N.E.2d at 597 ("[I]t is the duty of the jury not to reach compromise verdicts based on sympathy for the defendant or to appease holdouts, but to render a just verdict by applying the facts it finds to the law it is charged."); Daulton, 518 N.W.2d at 722 ("The primary difficulty with the unable to agree instruction is it dilutes the requirement of unanimity and encourages the jury to bypass the charged offense on its way to a compromise verdict[.]"); Davis, 266 S.W.3d at 907-08 (concluding that an acquit first instruction promotes structured and thorough deliberations, assures reliable verdicts, and "reduces the risk of a compromise verdict"). {34} On the other hand, several courts consider unable to agree instructions to reduce the risk of a hung jury, mistrial, and subsequent retrial by allowing juries the freedom "to better gauge the fit between the state's proof and the offenses being considered." LeBlanc, 924 P.2d at 442-43; see also Green, 80 P.3d at 96 ("Use of the 'unable to agree' instruction reduces the risk of compromise verdicts by enabling the finders of fact to better gauge the fit between the evidence adduced at trial and the offenses being considered. The instruction also reduces the risk of hung juries and the significant costs involved with retrial."); Thomas, 533 N.E.2d at 292 ("We reject the 'acquittal first' instruction . . . because such an instruction encroaches on the province of the jury to decide questions of fact and to arrive at a verdict based on all the evidence before it and all the various offenses on which it has been properly instructed."); Labanowski, 816 P.2d at 34 (concluding that an "unable to agree" instruction "allows the jury to correlate more closely the criminal acts with the particular criminal conviction" and "promotes the efficient use of judicial resources" by reducing the likelihood of mistrials). {35} For these reasons, the United States Court of Appeals for the Second Circuit, in an often cited case, concluded that both acquit first and unable to agree instructions have advantages and disadvantages for both the state and the defendant:
[An acquit first instruction] has the merit, from the Government's standpoint, of tending to avoid the danger that the jury will not adequately discharge its duties with respect to the greater offense, and
instead will move too quickly to the lesser one. From the defendant's standpoint, it may prevent any conviction at all; a jury unable either to convict or acquit on the greater charge will not be able to reach a lesser charge on which it might have been able to agree. But it entails disadvantages to both sides as well: By insisting on unanimity with respect to acquittal on the greater charge before the jury can move to the lesser, it may prevent the Government from obtaining a conviction on the lesser charge that would otherwise have been forthcoming and thus require the expense of a retrial. It also presents dangers to the defendant. If the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge.
An instruction permitting the jury to move on to the lesser offense if after all reasonable efforts it is unable to reach a verdict on the greater likewise has advantages and disadvantages to both sides the mirror images of those associated with [acquit first instructions]. It facilitates the Government's chances of getting a conviction for something, although at the risk of not getting the one that it prefers. And it relieves the defendant of being convicted on the greater charge just because the jury wishes to avoid a mistrial, but at the risk of a conviction on the lesser charge which might not have occurred if the jury, by being unable to agree to acquit on the greater, had never been able to reach the lesser.
Tsanas, 572 F.2d at 346 (footnote omitted).
{36} Upon review of these considerations, we recognize that the unable to agree approach adopted by several jurisdictions and approved by UJIs 14-250 and 14-625 has the practical benefit of reducing the likelihood of jury deadlock, mistrial, and the significant cost of retrial.
See Labanowski, 816 P.2d at 34. However, we are
which it has deadlocked.
See Castrillo, 1977-NMSC-059, ¶¶ 5, 14 ("Henceforth, when a jury announces its inability to reach a 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. The jury may then be polled with regard to any verdict thus returned.").
III. CONCLUSION
{39} Because the district court's questioning of the foreperson, in the context of the notes sent by the jury during deliberations, established a clear record that the jury was deadlocked on the charge of CSCM at the time of its discharge, we conclude that the district court did not abuse its discretion in finding manifest necessity to declare a mistrial on both charges under Count 1. Accordingly, we affirm the district court's denial of Defendant's motion to bar retrial on the greater offense of CSCM. {40} Furthermore, to address the ambiguity and inconsistency in our current uniform jury instructions, we adopt a consistent approach to the consideration of counts with lesser included offenses. Henceforth, juries shall be instructed that they have discretion to choose the order in which they deliberate on the offenses within a count but that they may not return a verdict on a lesser included offense unless they unanimously find the defendant not guilty on the greater offense.
{41} IT IS SO ORDERED.
/s/ _________
BARBARA J. VIGIL, Justice
WE CONCUR:
/s/_________ PETRA JIMENEZ MAES, Justice /s/_________ CHARLES W. DANIELS, Justice /s/_________ GARY L. CLINGMAN, Justice