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State v. House11/20/1997
there was no indication that sympathy or prejudice affected deliberations. In fact, the jury foreman, who voted to convict, was quoted as saying that sympathy and prejudice did not enter into any of the deliberations.
{46} We do note that there were some post-trial interviews with jurors from the first trial reporting statements of sympathy expressed by jurors in the first trial that apparently influenced their decision to vote to acquit. However, as we discussed above, there is no credible showing that improper bias and sympathy continued into the second jury. And without such a showing, the district court could only speculate that what had happened with the first jury would surely happen again.
{47} At this point we note some concern we have regarding the district court's decision to delve into the specifics of prior jury deliberations at all. "New Mexico has consistently held that it is improper to allow juror affidavits or other evidence tending to impeach, impugn or vitiate the jury's decisions." , overruled on other grounds by ; see also Rule 11-606(B) NMRA 1997. Moreover, inquiry into jury deliberations where a mistrial has occurred is not allowed. See ; see also ) ("Inquiry as to a juror's inner reaction in arriving at a verdict is prohibited."). Further, "nquiry into the truthfulness of a juror's response to questioning on voir dire is not precluded by Rule 11-606, although the truthfulness cannot be proved by the use of evidence barred by Rule 11-606." . For purposes of this appeal we need not decide whether the district court's inquiry into prior jury deliberations was appropriate because, as we discussed above, we do not believe the evidence of prior jury deliberations was sufficient to support the district court's unusual decision to forego voir dire.
{48} We reiterate that we do not minimize the district court's concerns about whether an impartial jury can be empaneled in Taos County. However, there are a number of steps the district court can take to ensure that voir dire is as effective as possible in eliminating biased individuals from the jury. See 2 ABA Standards for Criminal Justice 8-3.5, at 8.42-8.49 (2d ed. Supp. 1986); see also (recognizing that ABA Standards may be useful guidelines that the court may consider using). Before Taos County is declared incapable of rendering a fair and impartial verdict in this case, the district court must make every reasonable effort to select a jury from a community that the district court itself has deemed worthy of very high praise.
{49} Although it does not appear in the district court's written order changing venue, when ruling from the bench the district court commented at some length about its concerns over the effect that two prior mistrials in this case may have on a third jury from Taos County. Cf. (trial court's verbal comments can be used to clarify ruling). Defendant points out on appeal that the State seemed to rely heavily on the fact of two hung juries to argue that its right to a fair trial was compromised on the assumption that a fair and impartial jury includes a jury that will reach a decision. Although the district court rejected that argument, the court did rely on the fact of two hung juries. During its oral ruling, the court noted there has been widespread media coverage about the jury deliberations and the inability of two juries to reach a verdict. The court believed that it could be hard on future prospective jurors who know about the results of two hung juries, and who are aware of the hardships imposed on the two prior juries. Consequently, the court believed there was a risk that a future jury would decide to convict or acquit even if the jury was not unanimous simply to end the case
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