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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

a Court of Appeals of New Mexico
Opinion Number: Filed 10/29/2019 11:05 AM

Filing Date: October 29, 2019

NO. A-1-CA-37236

STATE OF NEW MEXICO,

Plaintiff-Appellee,

ARTHUR MARTINEZ,

Defendant-Appellant.

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APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Drew D. Tatum, District Judge

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Hector H. Balderas, Attorney General
Santa Fe, NM
Lauren J. Wolongevicz, Assistant Attorney General

Albuquerque, NM

for Appellee

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Bennett J. Baur, Chief Public Defender
Santa Fe, NM

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Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM

for Appellant

OPINION

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BOGARDUS, Judge.

Defendant Arthur Martinez appeals frorn the district court’s order denying his

motion to dismiss. The central issue on appeal is whether Defendant’s two

convictions entered by the magistrate court should stand, given a conflict between—

on the one side, the jury foreperson’s announcement of guilt on both counts, the

result of the jury poll generally affirming the jury foreperson’s announcement, and

signed “guilty” verdict forms——-and on the other side, signed “not guilty” verdict

forms. Concluding that the inconsistency in the verdict forms was the product ofa

clerical error that the magistrate properly corrected and that Defendant was not

exposed to double jeopardy, as argued, we affirm.

BACKGROUND

i} Defendant was charged with two misdemeanor crimes: driving with a

suspended license and driving without insurance. This appeal stems from an

irregularity in Defendant's trial, which was conducted in magistrate court.

Because the magistrate court is not of record, knowledge of what happened at

Defendant's trial is limited; nevertheless, both parties submit the following. After

the jury deliberated, the jury foreperson announced that the jury found Defendant

guilty on both counts. During the jury poll that followed the announcement, each

juror assented to the verdict. Of note, however, the court did not poll the jurors

specifically as to each count. The court then discharged the jury. After the jury left,

the magistrate court noticed that the foreperson had signed both the “guilty” verdict

form and the “not guilty” verdict form associated with each count. The court

responded to the inconsistency by setting a hearing on the issue.

(4 The record provides additional information about what happened next. The

magistrate court filed the “guilty” verdict forms with the clerk on the day of trial.

The “not guilty” verdict forms were made part of the record with a note attached to

each with the words “Foreperson signed in error.” It is not clear who wrote or

attached the notes, nor when they were attached. Meanwhile, also on the day of trial,

the court prepared a notice to send to the jury foreperson requiring his attendance at

the hearing. The notice stated that the requirement to attend was “due to a clerical

error with the [vjerdict paperwork at the trial[.]” At the conclusion of that hearing,

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which likewise was not recorded, the magistrate court (1) found that the jury verdict

was valid as announced; and (2) entered a judgment of guilt as to each count.

is} Defendant then appealed the judgment to the district court and moved to

dismiss the charges, alleging that his right to be free from double jeopardy was

violated “by the .. . [mJagistrate [clourt’s decision to allow the verdict to stand.”

Following a hearing on the matter, the district court entered an order denying

Defendant's motion; included in the order were factual findings. Defendant next

entered into a conditional plea allowing him to seek relief from his convictions.

{39

Defendant now appeals the district court’s order.

DISCUSSION

6; We first establish the standard we use to review the district court’s order. We

review de novo the conclusions of law underlying the denial of Defendant’s motion

to dismiss. See State v. Baca, 2015-NMSC-021, 4 25, 352 P.3d LIST. To the extent

that those conclusions are based on the court’s findings stated in the order, we review

the findings under a deferential substantial evidence standard. See id. Under that

standard, “we will not weigh the evidence or substitute our judgment for that of the

[district]court, and all reasonable inferences supporting the fact findings will be

|i accepted even if some evidence may have supported a contrary finding.” State y.

Rodriguez, 2006-NMSC-018, 9 3, 139 N.M. 450, 134 P.3d 737 (citation omitted).

3 The question before us is whether the district court erred in concluding that,

based on what happened in magistrate court, the entry of Defendant's convictions

was proper. Defendant’s claims to the district court and now on appeal all arise from

the fact that the “not guilty” verdict forms were signed. Defendant treats the signed

forms as an acquittal and, in so doimg, contends both that the magistrate court

subjected him to double jeopardy by recording the guilty verdict and also that any

retrial of the charges against him would constitute double jeopardy. In contrast, the

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State treats the signatures on the “not guiity” verdict forms as ciericai error that the
magistrate court was aiiowed to, and did, correct.
{8} | We share the State’s view that the signing of the “not guilty” verdict forms
was ciericai error that the magistrate court couid correct, and we disagree with
Defendant that the signed “not guilty” verdict forms were tantamount to an acquittal
giving rise io doubie jeopardy.

I. The Signed “Not Guilty” Verdict Forms Represented Clerical Error

(93 Defendant denies that the written verdicts resulted from ciericai error and

5} stresses that, instead, they were ambiguous. We disagree. With two signed verdict

i6| forms for each charge, one “guiity” and one not, the occurrence of ciericai error is

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piain, given the simpie fact that one must be correct and the oiher incorrect.
Furthermore, the probiem with the written verdicts was not that either one contained
internal ambiguity or vagueness needing ciarification or interpretation, but rather
that each one’s piain meaning contradicted the other’s. Compare Di Paima v.
Weinman, 1911-NMSC-036, § 15, 16 N.M. 302, 121 P. 38 (considering a written
jury verdict assessing damages “at $5,000, at 6 per cent. interest[,/” ambiguous in
that it was unclear whether the interest was intended to be prejudgment or
postjudgment interest), aff'd sub nom. Weinman v. De Palma, 232 U.S. 571 (1914),

return of signed “guiity” and “not guiity” verdict forms for a single charge was

indicative of inadvertence, not ambiguity). Hence, clerical error was present, and

Defendant’s reliance on case law governing courts’ responses to “ambiguous”

verdicts is generally misplaced.

410} More apt to this situation is case law addressing inconsistency in expression

and intention: cases in which the jury foreperson signed both the “guilty” and “not

guilty” verdict forms, e.g., Burghardt, 435 N.W.2d at 675; cases in which the oral

or written verdict did not reflect the jury’s actual finding, e.g, Rodriguez, 2000-

NMSC-018, 9 2; see also, e.g., United States v. Stauffer, 922 F.2d 508, 511 (9th Cir,

1990); United States v. Dotson, 817 F.2d 1127, 1129 Oth Cir. 1987), vacated in part

on other grounds, 821 F.2d 1034 (Sth Cir. 1987) (per curiam); United States v.

Mears, 614 F.2d 1175, 1179 (8th Cir. 1980); and cases in which a court’s oral

pronouncement contradicted its written order, e.g., Johnson v. Mabry, 602 F.2d 167,

169 (Sth Cir. 1979); State v. Stejskal, 2018-NMCA-045, 4] 3-5, 421 P.3d 856. In

such cases, courts have understood the inconsistencies as resulting from inadvertent

error and have approved of juries’ and trial courts’ exercise of power to correct those

errors. Stauffer, 922 F.2d at 514; Dotson, 817 F.2d at 1130; Afears, 614 F.2d at 1179;

Johnson, 602 F.2d at 170; Burghardt, 435 N.W.2d at 675; Rodriguez, 2006-NMSC-

O18, 9 1: Stejskel, 2018-NMCA-045, € 16.

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fa Rule =6-704(B) NMRA furnishes such power to magistrate courts.

DA 4 6% Li 4

Specifically, Rule 6-704(B) provides that “[c}lerical mistakes in final orders

parts of the file and errors therein arising from oversight or omission may be

corrected by the magistrate at any time on the judge’s own initiative.” A court

properly exercises this power when it takes some action relative to a verdict form to

reflect the jury’s true intent. Cf Rodriguez, 2006-NMSC-018, 4 1 (recognizing the

district court’s power to correct a signed verdict form not reflective of the jury’s

intent).

4123 We consider, then, whether the magistrate court’s act of recording the guilty

verdict was reflective of the jury’s true intent. The district court found that the jury

intended to return verdicts of guilt as to both charges against Defendant. In

particular, the district court found that the magistrate jadge announced the jury’s

verdict of guilty on both counts and that the jury foreperson did the same. The district

court concluded that there was “ample” evidence that the announcements were

correct,

413; We agree that there was ample evidence to support the conclusion that the

jury found Defendant guilty on both counts. Most notably, the jury foreperson

returned an oral verdict making that exact pronouncement. The jury heard it. When

polled, not one juror registered dissent. The jury then heard the judge make the same

pronouncement: guilty on both counts. No juror stayed after trial to inform any court

official that what was spoken by both the jury foreperson and the judge inaccurately

: D oa

renrecented the jmyce_-verdict
representec tne jury s-veraict; ¢

19}

it is reasonable to infer that—had the jury found Defendant not guilty on one of the
counts, as Defendant contends is possible in light of the general polling approach
taken—at least one of the jurors would have attempted to correct the prevailing
understanding of guilt on both counts, either during polling or after trial. Cf State v.
Holloway, \987-NMCA-090, 914, 106 N.M. 161, 740 P.2d 711 (noting that the
purpose of a jury poll is “to give each juror an opportunity, before the verdict is
recorded, to declare in open court his assent to the verdict which the foreman has
returned and thus to enable the court and parties to ascertain for a certainty that each
of the jurors approves of the verdict as returned’ (emphasis added) (internal
quotation marks and citation omitted)). Furthermore, the magistrate court found after
the hearing it conducted that the oral verdict was valid; and shortly after trial, in its
letter to the foreperson, characterized the extraneous signings as “clerical error.”
{14} In sum, we conclude that the signing of the “not guilty” verdict forms was
clerical error, that Rule 6-704(B) empowered the magistrate court to correct the
error, and that the court did so by entering the guilty verdict to reflect the jury’s true
intent. Cf Rodriguez, 2006-NMSC-018, 4 1.

IJ. Defendant’s Double Jeopardy Right Was Not Violated

1s} Defendant’s arguments concerning double jeopardy also fail. The double
jeopardy protection, as relevant here, applies “against a second prosecution for the

same offense after acquittal.” United States y. DiFrancesco, 449 U.S. 117, 129

(1980) Gnternal quotation marks and citation omitted); State v. Gallegos, 2011-

NMSC-027, 4 30, 149 N.M. 704, 254 P.3d 655 (internal quotation marks and citation

omitted). That is, the double jeopardy issue would arise if Defendant were acquitted,

but he was not. See DiFrancesco, 449 U.S. at 129; Gallegos, 2011-NMSC-027, 4 30.

The “not guilty” verdict forms signed by the jury foreperson were never effectuated:

they were not announced in open court, made the subject of the jury poll, or entered

as the judgment of the magistrate court. See, e.g., 3 Charles Alan Wright et al.,

Federal Practice and Procedure § 317 (Ath ed. 2011) (observing that a verdict is

valid when the result of jury deliberations is announced in open court and no juror

registers dissent); 75B Am. Jur. 2d Trial § 1445 (2019) (observing that “it is the

i judgment of the court adopting the findings of the jury which breathes life and

effectiveness into the jury’s verdict”): cf Rule 6-610 NMRA (outlining the

requirements governing the return of a verdict in magistrate court); Rule 6-701

NMRA (outlining the magistrate court’s role in effectuating a judgment of guilty or

not guilty). To the contrary, the magistrate court filed the “guilty” verdict forms

based on the foreperson’s announcement of the guilty verdicts in open court and the

poll confirming the unanimity of the jury. After the hearing on the matter, the

magistrate court found that Defendant’s convictions stood and entered judgment

accordingly. Under these circumstances, the written not guilty verdicts cannot

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function as an acquittal that wouid expose Detendant ta

Blueford v. Arkansas, 566 U.S. 599, 610 (2012) (holding that the defendant could be

retried on charges for which the jury returned oral not guilty verdicts, but for which

no formal acquittal was entered); State v. Dorsey, 706 S.W.2d 478, 481 (Mo. Ct.

App. 1986) (rejecting, based on the trial court’s having not accepted the not guilty

verdict returned by the jury, the argument that double jeopardy bars a new trial).

Without an acquittal, Defendant faced no double jeopardy.

Ill. There Was No Fundamental Error

416} Defendant further asserts that the magistrate court fundamentally erred by not

treating the not guilty written verdict as controlling. Having established that the

magistrate court did not err in recording the verdict of guilt, we need not consider

this argument further, as there is no possibility that the court fundamentally erred.

See State v. Archunde, 1978-NMCA-050, 93, 91 N.M. 682, 579 P.2d 808

(concluding that where there was no error, there was no fundamental error).

CONCLUSION

a7} We affirm.

as} ITISSO ORDERED.

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Yas farm Groryser oad

KRISTINA BOGKRDUS, Judge

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WE CONCUR:

o MAM. .

J. MILES HANISEE, Chief Judge

ZACHARY AYIVES, Judge

October 29, 2019- State of New Mexico v. Arthur Martinez, No. A-1-CA-37236

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