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State v. Mann6/6/2000
tionally, the trial judge who presided at trial has since retired, therefore requiring a new judge to conduct the interviews. For these reasons, I believe that the State could not meet its burden of showing Defendant was not prejudiced. I would hold, then, that the State had an opportunity to rebut the presumption of prejudice during the initial interviews and failed to do so at that time. This failure, in my view, cannot be corrected by conducting interviews of the remaining jurors on remand. I therefore would conclude that Defendant's convictions for both second-degree murder and intentional child abuse resulting in death should be reversed and the case remanded for a new trial on those two charges.
On remand, Defendant could be charged with both second-degree murder and intentional child abuse resulting in death. See Pierce, 110 N.M. at 87, 792 P.2d at 419. In a new trial, however, the State would be permitted to proceed on both theories. If a jury eventually returned guilty verdicts on both charges, the trial court would then dismiss the second-degree-murder charge, because it is a lesser included offense of child abuse resulting in death.
The majority having expressed a different view and holding on this issue, I dissent.
III. CONCLUSION
We conclude that: (1) Defendant's right to be free from double jeopardy was violated by his convictions and sentencing for both second- degree murder and intentional child abuse resulting in death; and (2) there was sufficient evidence presented to support an instruction on defense of another to the aggravated battery on a household member charge and the trial court erred by not giving such an instruction.
Because second-degree murder is a lesser included offense of intentional child abuse resulting in death and the rule of merger prohibits both a conviction and sentence for the lesser charge, we remand for the entry of an order vacating Defendant's conviction for second-degree murder. Defendant's conviction of intentional child abuse resulting in death is affirmed. We reverse Defendant's conviction for aggravated battery of a household member and remand for a new trial consistent with this opinion, only on that issue. IT IS SO ORDERED.
CONCURRING IN PART:
JAMES J. WECHSLER, Judge
M. CHRISTINA ARMIJO, Judge
ARMIJO, Judge.
We concur in that portion of Judge Apodaca's opinion regarding the double jeopardy and jury instruction issues. However, our opinion below represents the opinion of the Court regarding Defendant's claim of juror misconduct. This issue is one of first impression in New Mexico, the question being whether a juror's reliance upon his disclosed technical background, as well as his communication of this reliance to his fellow jurors, constitutes misconduct. On this issue, we affirm the district court's denial of Defendant's motion for a new trial.
STANDARD OF REVIEW
We begin by noting the applicable standard of review. It is well established that we would reverse the trial court's ruling on allegations of juror misconduct only upon an abuse of discretion. See Gonzales v. Surgidev Corp., 120 N.M. 133, 148, 899 P.2d 576, 592 (1995); State v. Chavez, 98 N.M. 682, 684, 652 P.2d 232, 234 (1982) ("The trial court has broad discretion in granting or denying a motion for new trial, and such an order will not be reversed absent clear and manifest abuse of that discretion."). This standard applies both to the district court's ultimate ruling and to our review of the means by which it inquired into Defendant's allegations. See State v. Sacoman, 107 N.M. 588, 592, 762 P.2d 250, 254 (1988)
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