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State v. Jim10/18/1988
0 (1983), cert. denied, 465 U.S. 1073, 104 S. Ct. 1429, 79 L. Ed. 2d 753 (1984); Crespin v. Albuquerque Gas & Elec. Co., 39 N.M. 473, 50 P.2d 259 (1935). These cases are not persuasive, however, because the courts stated that the trial courts did not abuse their discretion in not excusing for cause, since there was no showing that the juror would be less than fair. These are not the facts in this case. Moreover, the fact that the jurors in Gilbert and Crespin were allowed to be empanelled despite their acquaintance with the defendants has no bearing on whether the trial court in the
case before us abused its discretion in allowing the challenge for cause.
Defendant asserts the challenge should have been overruled because "there was no showing that Ms. Thomas could not be fair or impartial." This is not the standard for review, because it in no way indicates an abuse of discretion. Defendant has a legal right only to impartial jurors, not to the impartial jurors of his choice. United States v. Puff, 211 F.2d 171, 184-185 (2d Cir.), cert. denied 347 U.S. 963, 74 S. Ct. 713, 98 L. Ed. 1106 (1954), states in part:
party is entitled to an array of impartial jurors to which he may direct his peremptory challenges.... party is entitled to no more. Having no legal right to a jury which includes those who because of scruple or bias he thinks might favor his cause, he suffers no prejudice if jurors, even without sufficient cause, are excused by the judge. Only if a judge without justification overrules a challenge for cause and thus leaves on the panel a juror not impartial, does legal error occur.
See also United States v. Calhoun, 542 F.2d 1094 (9th Cir. 1976), cert. denied, 429 U.S. 1064, 97 S. Ct. 792, 50 L. Ed. 2d 781 (1977); 47 Am. Jur. 2d Jury § 222 at 813 (1969) ("Discharging or excusing a qualified juror is not generally regarded as prejudicial or reversible error." (footnote omitted)). Defendant has not argued that the jurors chosen were not impartial.
Based on the statements made during voir dire, we cannot say there was manifest error or a clear abuse of discretion in excusing Ms. Thomas for cause.
CONSTITUTIONALITY OF STATUTE
Defendant argues that the statute under which he was charged is unconstitutionally vague. The statute defines great bodily injury by a motor vehicle as "the injuring of a human being, to the extent defined in Section 30-1-12 NMSA 1978, in the unlawful operation of a motor vehicle." § 66-8-101(B). Section 30-1-12 is the definitional section of the Criminal Code, NMSA 1978, Sections 30-1-1 to 30-28-3 (Repl. Pamp. 1984 & Cum. Supp. 1988). In that section, great bodily harm is defined as "an injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body[.]" § 30-1-12(A). Defendant argues that the term "protracted impairment" is unconstitutionally vague, thus denying him due process.
A statute violates due process if its language is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Ferris, 80 N.M. 663, 459 P.2d 462 (Ct. App. 1969); see also Bokum Resources Corp. v. New Mexico Water Quality Control Comm'n, 93 N.M. 546, 603 P.2d 285 (1979)
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