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State v. Wiberg3/17/1988
, however, has a great deal of discretion in dismissing a juror for cause, and its decision will not be disturbed absent a manifest error or clear abuse of that discretion. State v. Martinez, 95 N.M. 445, 623 P.2d 565 (1981), overruled on other grounds, Fuson v. State, 105 N.M. 632, 735 P.2d 1138 (1987). The burden of establishing partiality is
upon the party making the claim. State v. Baca, 99 N.M. 754, 664 P.2d 360 (1983).
In support of his argument that he was denied the right to an impartial jury, defendant relies on State v. Sims, 51 N.M. 467, 188 P.2d 177 (1947) and Alvarez v. State, 92 N.M. 44, 582 P.2d 816 (1978). Neither Sims nor Alvarez, however, support defendant's claim. In Sims, the prospective juror specifically stated that his bias or prejudice would cause him to find against the defendant, but then under skillful questioning by the trial court and the prosecutor, the juror declared he would return a verdict in accordance with the law and the evidence. In the present case, Eberle only indicated her aversion to alcohol and her view that it caused many problems. She never stated, as did the juror in Sims, that she would find against defendant or that she believed that someone accused of a crime probably committed that crime if they had been using alcohol. Moreover, here, as opposed to Sims, it was defense counsel who "rehabilitated" Eberle when, in response to defense counsel's question, she denied any inability to be fair.
In Alvarez, defendant's jury included some jurors who had previously reached a guilty verdict in a different case based on the testimony of the same prosecution witness who would be called in Alvarez. The witness was the sole witness to the alleged sale of heroin and the state's case hinged on his testimony. The supreme court determined that those jurors should have been excused for cause: "The jurors, having sustained the credibility of the witness once before should not be allowed to overcome the implied bias in this situation by avowals of impartiality given in response to leading questions by the trial court and the prosecutor. * * * hese jurors cannot be judges of their own impartiality." Id. 92 N.M. at 46, 582 P.2d at 818 (citing Temple v. State, 15 Okl.Cr. 176, 175 P. 733 (1918)).
The trial court determined that by reaching a verdict of guilty in the previous case, the jurors had passed on the credibility of the state's sole witness and demonstrated a bias in favor of the state. There is no such similar showing here. Once Eberle indicated that she could be impartial, defendant made no further inquiry. Under the circumstances, defendant did not sustain his burden in demonstrating Eberle's partiality. See State v. Baca; cf. State v. Dobbs (effort to elicit more information than appears in the record should have been made where jurors were questioned about their ability to be impartial and counsel made no further inquiry after their responses).
Because defendant has not shown that Eberle was partial, and for the other reasons stated above, we hold the trial court did not abuse its discretion in refusing to strike Eberle for cause. See State v. Baca; State v. Martinez. Accordingly, defendant was not denied his right to an impartial jury. See State v. Dobbs.
ISSUE 3 (DWI conviction precluded.)
Defendant was convicted of both vehicular homicide and DWI. He contends that he cou
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