February 03, 2016 – State of New Mexico v. Ceasar Ortiz-Castillo, No. 33,837

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: February 3, 2016
NO. 33,837
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CAESAR ORTIZ-CASTILLO,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
James M. Hudson, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
Jane A. Bernstein, Assistant Attorney General
Albuquerque, NM
for Appellee
L. Helen Bennett, P.C.
L. Helen Bennett
Albuquerque, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	This appeal arises from a jury trial in which Defendant Caesar Ortiz-Castillo
was convicted of trafficking controlled substances, contrary to NMSA 1978, Section
30-31-20(A)(3) (2006), and possession of drug paraphernalia, contrary to NMSA
1978, Section 30-31-25.1(A) (2001). Defendant originally appealed three issues, two
of which we addressed in a memorandum opinion that affirmed Defendant’s
convictions. State v. Ortiz-Castillo, No. 33,837, mem. op. (N.M. Ct. App. Feb. 3,
2016) (non-precedential).
{2} 	The final issue on appeal relates to Defendant’s claim that the district court’s
failure to provide Spanish translations of written jury instructions to a Spanish-
speaking juror violated that juror’s constitutional right to fully participate in the trial.
Because we conclude that the accommodations made by the district court were
sufficient to avoid any impairment to the ability of a Spanish-speaking juror to fully
participate, we affirm.
BACKGROUND
{3} 	The jury panel convened for Defendant’s criminal trial included individuals for
whom Spanish was their primary language. One of these individuals was ultimately
selected to serve on the jury and required interpretative services throughout the trial.

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Defendant’s request that the Spanish-speaking juror be provided written jury
instructions in Spanish was denied, but the district court noted that an interpreter
would be present during deliberations and could translate the jury instructions as
needed. Defendant appealed the district court’s refusal to provide written translations
of the jury instructions into Spanish.
PRESERVATION
{4} 	Defendant argued both at trial and in his appellate briefing that the district
court’s failure to provide Spanish-language translations of written jury instructions
could compromise the Spanish-speaking juror’s ability to fully participate in the
deliberative process. Our appellate courts have held that criminal defendants have
standing to assert the rights of jurors to be free from discriminatory exclusion, a
premise that extends to the deliberative process. See State v. Rico, 2002-NMSC-022,
¶ 6, 132 N.M. 570, 52 P.3d 942 (“In [State v. Singleton, 2001-NMCA-054, 130 N.M.
583, 28 P.3d 1124], the Court of Appeals held that a defendant has standing to protect
the Article VII, Section 3 rights of an excluded juror. This result is correct.” (citation
omitted)).
STANDARD OF REVIEW
{5} 	Defendant’s argument that Spanish-speaking jurors are entitled to written
translations of jury instructions is premised upon language found in the New Mexico

1While only the English and Spanish languages are afforded inherent status
under Article VII, Section 3, our Supreme Court has indicated that the constitutional
principles and protections apply to persons who speak other languages. See Rico,
2002-NMSC-022, ¶ 3 (“Since the basis of our order was Article VII, Section 3, we see
no reason why its principles . . . should not protect speakers of the Navajo language.”).
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Constitution. See N.M. Const. art. VII, § 3. We review questions of constitutional law
de novo. State v. DeGraff, 2006-NMSC-011, ¶ 6, 139 N.M. 211, 131 P.3d 61.
WRITTEN JURY INSTRUCTIONS FOR SPANISH-SPEAKING JURORS
{6} 	Defendant argues on appeal that the New Mexico Constitution requires that
written translations of jury instructions be provided to Spanish-speaking jurors. The
New Mexico Constitution provides, in pertinent part, that “[t]he right of any citizen
of the state to vote, hold office or sit upon juries, shall never be restricted, abridged
or impaired on account of religion, race, language or color, or inability to speak, read
or write the English or Spanish languages[.]” N.M. Const. art. VII, § 3.1 As additional
support for his argument, Defendant notes that our Supreme Court, discussing Article
VII, Section 3 in Rico, stated that “[i]t is an unusual constitutional provision
and . . . will not always be convenient to implement. The judicial branch of
government will need the resources to make full implementation a reality.” 2002-
NMSC-022, ¶ 7.
{7} 	Our Supreme Court recently spoke to whether jury instructions must be
provided in languages other than English in Order No. 00-8500, which adopted the

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Non-English Speaking Juror Guidelines (NES Guidelines) drafted by the Committee
for the Improvement of Jury Service in New Mexico. See Supreme Court Order No.
00-8500 (Sept. 11, 2000). The NES Guidelines exist “to assist in the efforts of the
New Mexico Judiciary to incorporate non-English speaking (NES) citizens into New
Mexico’s jury system.” State v. Pacheco, 2007-NMSC-009, app. C § I, 141 N.M. 340,
155 P.3d 745. In contemplation of whether trial courts should provide written
translations of jury instructions to NES jurors, the NES Guidelines state that “courts
are encouraged to draft written, Spanish translations of the jury instructions with the
assistance of a court interpreter. Alternatively, the court interpreter assigned to assist
NES jurors during deliberations may provide an oral translation of the jury
instructions.” Id. § II(H). Given this language, it appears that our Supreme Court has
considered 	the 	issue 	raised 	by 	Defendant 	and 	determined 	that 	the 	alternate
accommodations outlined in the NES Guidelines are sufficient.
{8} 	Our analysis of Article VII, Section 3 leads to the same conclusion. The
language of Article VII, Section 3 limits a government’s ability to “restrict[],
abridge[], or impair[]” a citizen’s right to serve on a jury. N.M. Const. art. VII, § 3.
The facts of this case implicate the potential for impairment of jury service as opposed
to the potential for restriction or abridgment. Cf. Rico, 2002-NMSC-022, ¶ 1 (holding

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that a trial court may not excuse a potential juror simply because the juror would need
an interpreter to participate in the proceedings).
{9} 	Our central purpose in interpreting the constitution is to “reflect[] the drafters’
intent.” State v. Lynch, 2003-NMSC-020, ¶ 24, 134 N.M. 139, 74 P.3d 73. Principles
of statutory construction “apply equally to constitutional construction.” State v. Boyse,
2013-NMSC-024, ¶ 8, 303 P.3d 830 (internal quotation marks and citation omitted).
As with legislative intent, to determine the intent of the drafters of our Constitution,
“we first turn to the plain meaning of the words at issue, often using the dictionary for
guidance.” Id. ¶ 9. Under the plain meaning rule, we apply the ordinary meaning of
the chosen language “unless the language is doubtful, ambiguous, or an adherence to
the literal use of the words would lead to injustice, absurdity or contradiction[.]” State
v. Maestas, 2007-NMSC-001, ¶ 9, 140 N.M. 836, 149 P.3d 933 (internal quotation
marks and citation omitted).
{10} 	Webster’s International Dictionary variously defines the word “impair” as to
“do harm to[,]” to “damage[,]” and to “lessen[.]” Webster’s Third New Int’l
Dictionary, 1131 (unabridged ed. 1993). Application of any of these definitions to the
language of Article VII, Section 3 indicates that, to violate the New Mexico
Constitution, a governmental entity must implement a system whereby the “inability

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to speak, read or write the English or Spanish languages” somehow harms the ability
of an individual to serve on a jury. N.M. Const. art. VII, § 3.
{11} 	Defendant argues that the absence of a written translation of jury instructions
impairs, or harms, the ability of a NES juror to fully participate in the deliberative
process. In order to determine whether this is true, we must first establish the purpose
of written jury instructions. The seminal case on this topic, Kunz v. Nelson, holds that
the general purpose of written jury instructions is to assist the jury during
deliberations. 76 P.2d 577, 584 (Utah 1938) (“The requirement to instruct in writing
does not mean for the purposes of the record only, but for the purposes of use by the
jury in the jury room[.]”). Our Supreme Court has advanced similar rationales for the
use of written jury instructions in New Mexico. See Territory v. Lopez, 1884-NMSC-
012, ¶ 10, 3 N.M. 156, 2 P. 364 (“[I]nstructions, under our statute, must be in writing,
and should properly enunciate the law on the subject.”); State v. Greenlee, 1928-
NMSC-020, ¶ 27, 33 N.M. 449, 269 P. 331 (“Since 1880 it has evidently been the
legislative policy that there should be an authoritative record to which the jurors might
refer to avoid misapprehension or differences of opinion[.]”); Hayes v. Hockenhull,
1964-NMSC-087, ¶ 14, 74 N.M. 329, 393 P.2d 444 (“The purpose of instructing the
jury is to make the issues that they are to determine plain and clear.”).

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{12} 	Legal scholarship further clarifies that the purpose of written jury instructions
relates directly to the ability of jurors to remember oral instructions once they have
retired to the jury room. See, e.g., Jeannine Turgeon and Elizabeth Francis, Improving
Pennsylvania’s Justice System Through Jury System Innovations, 18 Widener L.J.
419, 439 (2009) (“Empirical research confirms our intuitive notion that written
instructions aid in the comprehension, retention, and application of the judge’s
instructions. . . . Research in cognitive psychology has amply demonstrated the
benefits for comprehension and recall of both multiple exposure and written materials.
Providing jurors with copies of written instructions increases juror understanding of
the instructions, results in less confusion about applicable law, reduces questions
about the instructions during the deliberations, reduces deliberation time, reduces
disputes among jurors about the meaning and correct application of instructions, and
increases jurors’ confidence in the verdicts they reach.” (footnotes omitted));
Elizabeth A. Tashash, Note, 	Mandatory Provision of Written Copies of Jury
Instructions to Retiring Juries in Criminal Trials in Massachusetts, 19 Suffolk J. of
Trial & App. Advoc. 414, 427-28 (2014) (“[T]he advantages of submitting written
copies of [jury instructions] are clearly demonstrated by the empirical studies on juror
comprehension of jury instructions. The simple visual aid of a written copy of the jury
instructions for use in the deliberation room allows for a solution to the study results

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that show that jurors cannot remember—let alone comprehend—instructions after
hearing them only once. In addition, there is evidence that juries provided with a
written copy of the jury instructions deliberate in more efficient and informed ways,
and feel more confident about their decisions.” (footnotes omitted)). There is no
reason to believe that these findings would be less applicable to NES jurors.
{13} 	However, the question before this Court is not whether written jury instructions
are beneficial, but it is instead whether the absence of written jury instructions would
impair a NES juror’s ability to fully participate given the facts of this case.
{14} 	New Mexico law provides that jurors are entitled to the same interpretative
services during jury deliberations as they are during the trial itself. See Pacheco,
2007-NMSC-009, ¶ 2 (“[O]nce an interpreter has been given the mandatory
interpreters’ oath to interpret testimony correctly, an interpreter is authorized to be in
the room during deliberations to assist non-English speaking jurors.”). New Mexico
law also defines “court interpreter” as “a person who provides interpretation or
translation services for a case participant[,]” including jurors. Rule 1-103(A)(5)
NMRA. “Translation” is defined as “the transmission of a written message from one
language to another[.]” Rule 1-103(A)(4).

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{15} 	In the present case, three certified court interpreters were sworn prior to the
beginning of the proceedings. Two of these interpreters accompanied the NES juror
into the jury room to assist with the deliberative process.
{16} 	If the purpose of written jury instructions is to limit the need for absolute recall
memory of oral instructions given in the court room, we are unable to say that the
presence of the interpreters in the jury room does not mitigate any potential
impairment. Our rules of trial practice anticipate the need to translate written
documents, including jury instructions, for NES jurors. Rule 1-103(E)(8). There is no
reason to believe that one or both of the court interpreters present, who were qualified
under Rule 1-103(E)(1)-(3), would be unable to do so in this, or any, case.
{17} 	Defendant’s reliance on Rico to argue that a trial court must provide written
jury instructions, regardless of the procedural costs, is misplaced in this case. In
addition to the language cited by Defendant, our Supreme Court in Rico also noted,
“[t]he rights protected by Article VII, Section 3, like most constitutionally protected
rights, are not absolute. There are circumstances in which a prospective juror’s right
to serve on a jury must be balanced against practical considerations[.]” Rico, 2002-
NMSC-022, ¶ 10. The practical considerations in this case, obviously, are the
resources 	necessary 	to 	translate 	jury 	instructions 	when 	a 	readily 	available
accommodation exists within our current system of trial administration. Were data

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available showing that jury instructions serve a purpose that cannot be resolved
through translation by a court interpreter in the jury room, our analysis could differ.
Because any potential prejudice to the juror is equally well resolved by written
translations prior to deliberations, or oral or written translations as needed within the
confines of the jury room, the juror’s right to fully participate has not been impaired
as that word is used in Article VII, Section 3 of the New Mexico Constitution.
{18} 	In the absence of an impairment to a juror’s constitutional right to fully
participate in the deliberative process, we decline to mandate that trial courts provide
written 	translations 	of 	jury 	instructions. 	This 	conclusion 	accords 	with 	the
accommodations contemplated in the NES Guidelines that were implemented by order
of our Supreme Court. Pacheco, 2007-NMSC-009, app. C § II(H). If the “unusual”
wording set forth in Article VII, Section 3 of the New Mexico Constitution
necessitates that written translations be provided to Spanish-speaking jurors in the
absence of an impairment, that determination is properly left to our highest court.
Rico, 2002-NMSC-022, ¶ 7.

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CONCLUSION
{19} 	Therefore, we affirm.
{20} 	IT IS SO ORDERED.
________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
________________________________
RODERICK T. KENNEDY, Judge
________________________________
TIMOTHY L. GARCIA, Judge