Supreme Court clarifies jury ruling

Jurors can ponder lesser charges, but must first decide on greater offense

In a ruling Thursday, the state Supreme Court offered clarification as to the order in which jurors should deliberate and decide on counts that contain a lesser-included offense.

The ruling comes in an Albuquerque case against Kelson Lewis, who faced counts including criminal sexual contact on a minor with battery as a lesserincluded offense.

Justices wrote that jurors can consider a crime and its lesserincluded offenses in any order

they see fit. But they must first arrive at a unanimous not guilty verdict on the greater offense in order to return a decision on a lesser-included charge, according to the ruling.

The court called existing jury instructions inconsistent and ambiguous, and it has also asked one of its committees to revise them.

In Lewis’ case, jurors notified the court that they were unable to reach a verdict on the first count, and the judge declared a mistrial. But, Lewis argued, the judge did not conduct a poll to determine whether the jury was deadlocked on the criminal sexual contact charge or the battery charge.

“He contends, therefore, that he received an implied acquittal and that retrial as to criminal sexual contact of a minor in the 3rd degree ... is prohibited,” according to his appeal.

Lewis asserted that he should not be retried on the greater offense on double jeopardy grounds.

The Supreme Court disagreed. Notes jurors sent to the judge during deliberations along with information provided by a jury foreperson “established a clear record that the jury was deadlocked on the charge of CSCM at the time of its discharge,” justices wrote, affirming a lower court’s finding that Lewis can be retried on that count.