State v. Arellano

1998 NMSC 026, 965 P.2d 293, 125 N.M. 709

• Court: New Mexico Supreme Court
• Decided: August 14, 1998
• Docket: 24354
• Status: Published

Opinions

OPINION

BACA Justice.

{1} Pursuant to Rule 12-102 NMRA 1998, the State appeals the Court of Appeals’ opinion in State v. Arellano, 1997-NMCA-047, 123 N.M. 409, 940 P.2d 1204, cert. granted, No. 24,354, 123 N.M. 229, 938 P.2d 204 (1997), that reversed the trial court’s denial of Arellano’s motion for a new trial. Arellano moved for new trial based on the trial court’s failure to administer the oath found in UJI 14-123 NMRA 1998, to the jury before it delivered its verdict. We granted certiorari to consider whether the Court of Appeals erred in reversing the trial court’s denial of the motion. We reverse the Court of Appeals’ decision and affirm that of the trial court.

I.

{2} Defendant-Appellant Rodney Arellano (Arellano) was charged with vehicular homicide and other related charges on October 11, 1994. On October 19, 1995, a jury was selected before Judge Maes in Rio Arriba County. At that time, the jurors were voir dired and asked questions regarding their understanding of the jury selection process and its purpose to find impartial persons to try the case. The jurors were also asked whether they understood a juror’s duty to determine facts of the case only from the evidence presented in court, and deliver a verdict free from prejudice. The jurors said they understood the jury’s duty and purpose.

{3} After the jurors were selected, the court asked the parties about the timing of the jury oath since the case would not be tried until the following week in Santa Fe. The court stated that the usual practice is to await the start of the trial. Defense counsel stated that he had “no real reason” but preferred swearing the jury immediately. The prosecutor favored waiting for the start of the trial. The court then dismissed the jury without being sworn.

{4} The trial then began on October 24, 1995, in a different county, Santa Fe, and before a different judge, Judge Vigil. Although the court did not administer the oath at that time, the court gave the usual pretrial instructions including the jury’s duty to decide the case on all the evidence and to follow the law as fair and impartial jurors. On October 25, 1995, Arellano was convicted of vehicular homicide and sentenced to six years in prison. The jury delivering the verdict had not been sworn.

{5} After the trial, Arellano’s trial counsel admitted that he was aware, during the trial, that the jury had not been sworn. He admitted that he had researched the issue and concluded that the verdict could be nullified. However, counsel did not call this omission to the court’s attention until after the jury rendered its verdict and was finally discharged. Defense counsel admitted that this was a tactical move.

{6} Arellano moved for a new trial on the grounds that the jury had not been sworn. The court recalled the jurors, administered the oath and questioned them. Each juror assured the court that he or she had followed the oath during the trial and deliberations; each stood by the verdict. The court subsequently denied Arellano’s motion for a new trial, finding that Arellano knowingly waived the jury oath and that the jury had complied with the oath that the court would have administered. On appeal, the Court of Appeals reversed the trial court’s decision and ordered a new trial on the grounds that the trial court had abused its discretion in denying a new trial. The Court of Appeals concluded that the failure to swear the jury was a fundamental error that one could not waive. Arellano, 1997-NMCA-047, ¶ 9, 123 N.M. 409, 940 P.2d 1204. This appeal follows.

II.

{7} On appeal, we determine whether the trial court abused its discretion in refusing to grant Arellano a new trial after jurors returned the verdict because the trial court failed to swear in the jurors during the trial. See State v. Wittgenstein, 119 N.M. 565, 569, 893 P.2d 461, 465 (Ct.App.1995). We “will not disturb the trial court’s ruling without a clear showing of abuse of discretion.” State v. Lucero, 110 N.M. 50, 51, 791 P.2d 804, 805 (Ct.App.1990), (citing State v. Perrin, 93 N.M. 73, 596 P.2d 516 (1979)).

III.

{8} Arellano claims that the failure to swear the jury was a fundamental structural error. Arellano argues that because the oath controls how the jury arrives at its verdict, it is not a mere formality that one may waive. Because it could not be determined whether the jury’s verdict would have been different if the jury had been sworn, Arellano urges this Court to reverse his conviction. He also argues that although his trial counsel faced a difficult ethical dilemma involving conflicting duties of candor to the court and the duty to his client, his defense counsel acted in good faith. Moreover, Arellano claims that his counsel’s actions are irrelevant to the doctrine of fundamental error. We disagree.

{9} Case law suggests that a jury may be sworn although the trial is in progress. See State v. Apodaca, 105 N.M. 650, 654, 735 P.2d 1156, 1160 (Ct.App.1987), overruled on other grounds, by State v. Garcia, 110 N.M. 419, 796 P.2d 1115 (Ct.App.1990); People v. Smith, 848 P.2d 365, 372 (Colo.1993); State v. Roberge, 155 Vt. 121, 582 A.2d 142, 143 (Vt. 1990); People v. Morales, 168 A.D.2d 85, 570 N.Y.S.2d 831, 833 (App.Div.1991); State v. Block, 170 Wis.2d 676, 489 N.W.2d 715, 718 (Wis.Ct.App.1992); United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir.1972); Cooper v. Campbell, 597 F.2d 628, 629 (8th Cir.1979). Moreover, “irregularities in the swearing of the jury may be waived and do not necessarily constitute reversible error.” Apodaca, 105 N.M. at 654, 735 P.2d at 1160.

{10} In Apodaca, the Court of Appeals held that the failure to swear jurors did not require reversal. See id. In that case, the defendant moved for a mistrial upon realizing that the jury had not been sworn after the State had already presented its opening statement and its first witness. The trial court refused to declare a mistrial. On the second day of trial, the court administered the oath to the jurors and ordered them to consider the first witness’s testimony as if they had been sworn when they heard it. See id.

{11} On review, the Court of Appeals stated that “courts have generally held that irregularities in the swearing of a jury may be waived and do not necessarily constitute reversible error.” Id. at 654, 735 P.2d at 1160. However, the court recognized that “a complete failure to swear the jury cannot be waived and a conviction by an unsworn jury is generally held to be a nullity.” Id. The court further explained that “[ajlthough a jury’s oath is not a mere formality, where the jury is sworn during trial, but prior to commencement or deliberations upon the verdict, the error does not warrant reversal in the absence of prejudice.” Id. at 654, 735 P.2d at 1160 (citation omitted). The court stated that the oath requires jurors to swear or affirm that they will arrive at a verdict aecording to the evidence and the law as contained in the instructions of the court. See id. Therefore, “[ajlthough the trial court should have administered the oath immediately after the jury was empaneled, the failure to do so did not constitute reversible error.” Id.

{12} Although the jurors here were not sworn until after they rendered the verdict, we find no error. The jury understood the spirit of the oath and purpose of the jury selection process as emphasized in the voir dire procedures and jury instructions. Moreover, like the jurors in Apodaca, the jurors in this case swore or affirmed that, in fact, they arrived at a verdict according to the evidence and the law. Thus, they complied with the jurors’ oath.

{13} The purpose of administering the oath to jurors is to ensure that the jurors conduct themselves at all times as befits one holding such an important position. See UJI 14-123 NMRA 1998. As stated in the Committee Commentary to UJI 14-123, any oath or affirmation that awakens the juror’s conscience and impresses his or her mind with their duty will suffice. See Rule 11-603 NMRA 1998. Here the district court acted in its discretion in determining that the jury carefully adhered to the requirement to perform their duties as jurors faithfully and impartially. Although the court did not administer the oath in the words of UJI 14-123, the jury understood the spirit of the oath because it was emphasized in the voir dire procedures and jury instructions. In the jury instructions and voir dire questions, the district court impressed upon the jurors the solemnity of the jury selection process and its important purpose to find impartial persons to try the ease. The jurors understood their duty to determine facts of the case only from the evidence presented in court, and to deliver a verdict free from prejudice. Moreover, after the jury delivered the verdict, the district court ascertained that the jurors clearly understood the solemnity of the proceedings and had been committed to performing their duty to decide the case on the evidence and follow the law as fair and impartial jurors.

IV.

{14} Arellano, relying on Apodaca, argues that because there was a complete failure to swear the jury, the conviction is a nullity. See id. at 654, 735 P.2d at 1160. We disagree.

{15} Here, unlike Apodaca, Defendant purposely did not bring the failure to swear the jury to the court’s attention until after the verdict. Irregularities in the swearing of a jury may be waived and are not necessarily reversible error. This is not an irregularity, but rather a tactical move. The Defendant in fact waived the right to a sworn jury. Moreover, because Defendant perpetuated the error, the conviction in this case was not a nullity and is harmless error.

V.

{16} Arellano argues that under the facts and circumstances of this case, he did not waive his right to a fair and impartial jury, sworn under oath. Arellano claims, relying on the language in Apodaca, that “a complete failure to swear the jury cannot be waived.” Apodaca 105 N.M. at 654, 735 P.2d at 1160. We disagree.

{17} “[A] waiver ‘must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each ease upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.’ ” State v. Gilbert, 98 N.M. 530, 533, 650 P.2d 814, 818 (1982) (citations omitted) (quoting Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)).

{18} Here, Arellano’s trial counsel knew of the defect in the proceedings and the right of a sworn jury, yet engaged in gamesmanship, waiting to see the result of the verdict before notifying the court. Defense counsel admitted to the trial court that he knowingly withheld from the court his awareness the jury was unsworn because it might benefit his client. Defense counsel had a duty to “explain the matter to the extent necessary to permit the client to make informed decisions” about his case. See Rule 16-104(B) NMRA 1998. Nothing in the record suggests Arellano’s counsel failed to abide by the requirement to “discuss the legal consequences of this conduct.” Rule 16-102(D) 1998.¹

{19} Although we recognize that an attorney has the same duty of candor to the courts that he or she does to his or her clients, see Rule 16-102 NMRA 1998; State v. Tijerina, 84 N.M. 432, 443, 504 P.2d 642, 653 (Ct.App.1972), aff'd, 86 N.M. 31, 519 P.2d 127 (1973), we will not reward a tactical maneuver that flaunts this obligation, and we do not attempt to reconcile this conflict. Under the facts and circumstances of this ease, the actions of Arellano’s counsel constituted not only a waiver of his client’s right to a sworn jury but also a poor tactical move that we will not reward. Moreover, nothing exists in the record to show that the failure to administer the oath until after the verdict in any way prejudiced Arellano.² Finally, we note that Arellano’s reliance on the language of Apodaca is misplaced since the defendant in Apodaca, unlike Arellano, alerted the court to the fact the jury was unsworn before the jury rendered its verdict.

VII.

{20} In sum, while we are not minimizing the oath, and respect its function of insuring the solemn duty of the jury, this case is limited to its facts: most notably, the fact that the defense trial counsel knowingly waived the jury oath. Moreover, in this case, the district court properly found that the purposes of the oath were met. We hold that although the oath generally may not be bypassed, if by some inadvertence the court has not administered it to the jury before the jury renders the verdict, it is not necessarily reversible error.

{21} In conclusion, we hold that the Court of Appeals erred in reversing the trial court’s denial of Arellano’s motion for a new trial. Accordingly, we reverse the Court of Appeals’ decision, and affirm that of the district court.

{22} IT IS SO ORDERED.

FRANCHINI, C.J., concurs. SERNA, J. (Concurring in result). MINZNER and McKINNON, JJ. (Dissenting).

1 . This was especially true because Arellano had been very active in the proceedings and submitted numerous pro se filings.

2 . In fact, the district court provided more protection than the oath provides because it asked the jury after the fact whether they acted in accord with fairness and justice.

We also note that the appropriate method for addressing the waiver issue is habeas corpus. and not a direct appeal. See Bouldin v. Cox, 76 N.M. 93, 98, 412 P.2d 392, 395 (1966) (stating that "[w]here there is some showing of affirmative waiver, the burden of proof rests on the petitioner to establish that he did not competently and intelligently waive his constitutional right ... and that he must during the hearing on habeas corpus meet the burden.”) (quoting Sandoval v. Tinsley, 338 F.2d 48, 50 (10th Cir.1964)).