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State v. Mann6/6/2000
APODACA, Judge.
Defendant appeals his convictions for second-degree murder, intentional child abuse resulting in death, and aggravated battery of a household member. He raises three issues on appeal: (1) extraneous material was presented to the jury by one of the jurors, which (a) tainted the jury process and (b) entitled Defendant to a new trial, or at the least an evidentiary hearing, to determine whether Defendant was prejudiced by the extraneous material; (2) his convictions for both second-degree murder and intentional child abuse resulting in death violate his right not to be placed in double jeopardy; and (3) the trial court erred in not giving an instruction on defense of another as a defense to the aggravated battery against a household member.
On Issue 2, we hold that although Defendant can be charged with both second-degree murder and intentional child abuse resulting in death, he cannot be convicted of both crimes without violating his right to be free from double jeopardy. On Issue 3, we determine that Defendant was entitled to a jury instruction on his defense of another claim to the charge of aggravated battery against a household member. Finally, on Issue 1, the panel is divided, and on that issue this opinion represents a dissenting view. The majority having held otherwise on this issue, we affirm only the conviction of intentional child abuse resulting in death, based on our disposition of Issue 2. Departing from the views expressed by my esteemed colleagues, I would hold that extraneous material came before the jury, resulting in a presumption of prejudice to Defendant. I would also hold that the State failed to rebut the presumption and as a result Defendant is entitled to a new trial. Because I dissent on this issue, this opinion will first discuss Issues 2 and 3, on which the entire panel concurs, followed by my own discussion and proposed disposition of Issue 1.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of August 30, 1996, Noel Mann, Defendant's six-year-old son, suffered a fatal injury as a result of being impaled in the chest by a screwdriver. Defendant contended that the child, upon leaving the bathroom, slipped on a rug, knocked the screwdriver off a hamper, and then fell on the screwdriver, causing the fatal injury. The State contended that Defendant intentionally stabbed the child with the screwdriver. After the child received the injuries, Defendant's live-in fiancee, called 911 and attempted to help the child. Defendant, apparently believing that it would be fatal to the child if he was moved, attempted to prevent his fiancee from assisting by physically attacking her.
During the trial, Defendant called a physicist as an expert witness to testify on the possibility or probability for the child's injury to have occurred in the manner contended by Defendant. The expert witness testified regarding the mechanics, including the speed of falling bodies, the biomechanics of hard objects striking the human body, the amount of force necessary to cause certain injuries, and the probability, in general terms, of a screwdriver falling off a hamper in such a manner as to cause the injuries that ultimately resulted in the death of Defendant's son. The expert concluded that, although a series of events playing out as Defendant posited was not "impossible," the "probability" of such an occurrence "was extremely small."
After the jury returned a guilty verdict, Defendant's trial attorney interviewed some of the members of the jury. The interviews revealed that during jury deliberations, Juror No. 7, who had a background in engineering and physics, presented his views on Defendant's exp
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