New Mexico Supreme Court rules defendants have right to be present for jury questions
New Mexico’s Supreme Court ruled defendants have a right to be present when judges answer deliberating juries’ questions, but upheld a conviction.
Justices upheld Joshua Freeman’s sex crime conviction after finding improper communications between the trial court and jury did not affect the verdict.
Organ Mountain News report
SANTA FE - The New Mexico Supreme Court ruled Thursday that criminal defendants have a constitutional right to be present when a trial court addresses substantive questions from a deliberating jury, while upholding a Farmington man’s sex crime conviction because the improper communications did not affect the verdict.
The unanimous ruling affirmed Joshua Shane Freeman’s conviction for second-degree criminal sexual penetration. Freeman argued that his constitutional rights were violated when the trial court responded to two questions from jurors after deliberations began while he was not present.
Jurors first asked whether the charged offense, criminal sexual penetration in the second degree, was considered comparable in New Mexico to statutory rape. They later asked for the legal definition of physical force.
In each instance, the trial court directed the jury back to instructions it had already received. Freeman had been present when those instructions were settled and initially read to the jury, according to the opinion.
Justice C. Shannon Bacon, writing for the court, said questions about the charges and elements being considered by a deliberating jury are not routine or ministerial matters that can be handled without the defendant present.
“Any winnowing away of that constitutional right should be done with the utmost caution and care,” Bacon wrote.
The court rejected the state’s argument that the communications fell under an exception allowing certain conferences or hearings involving questions of law to proceed without a defendant. The justices said communications between a trial court and a jury are separately protected under New Mexico’s criminal procedure rules, even when jurors ask a legal question.
Damien Willis
The court also determined that Freeman’s absence created a rebuttable presumption that the improper communications prejudiced his case. However, the justices concluded the state overcame that presumption because the trial court’s written answers only referred jurors to instructions already provided in Freeman’s presence.
The ruling distinguishes Freeman’s case from situations in which a judge gives jurors new information or communicates with them off the record. Bacon wrote that written references to existing instructions eliminate much of the uncertainty about what was said and whether a judge’s words changed the course of deliberations.
The Supreme Court affirmed the Court of Appeals, which previously upheld Freeman’s conviction after finding the improper jury communications did not affect the verdict.
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