STATE V. ERIC M., 1996-NMSC-056, 122 N.M. 436, 925 P.2d 1198
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
ERIC M., a child, Defendant-Appellant.
SUPREME COURT OF NEW MEXICO
1996-NMSC-056, 122 N.M. 436, 925 P.2d 1198
CERTIFICATION FROM THE NEW MEXICO COURT
OF APPEALS. ON APPEAL FROM THE DISTRICT COURT OF CHAVEZ COUNTY. Alvin F. Jones,
District Judge.
Released for Publication October 18,
1996.
Dorothy C. Sanchez, Albuquerque, NM, for
Appellant.
Tom Udall, Attorney General, Bill Primm,
Assistant Attorney General, Santa Fe, NM, for Appellee.
RICHARD E. RANSOM, Justice. WE CONCUR:
JOSEPH F. BACA, Chief Justice, GENE E. FRANCHINI, Justice, PAMELA B. MINZNER,
Justice, DAN A. MCKINNON, III, Justice.
AUTHOR: RICHARD E. RANSOM
{1} Eric Anthony M.
was adjudged delinquent in the unlawful taking of a motor vehicle, NMSA 1978, §
66-3-504(A) (Repl. Pamp. 1994), reckless driving, NMSA 1978, §
66-8-113 (Repl.
Pamp. 1994), and resisting, obstructing or evading an officer, NMSA 1978, §
30-22-1(C) (Repl. Pamp. 1994). Auto theft is a felony, an offense triable by
jury if committed by an adult, thereby entitling the child to a jury trial.
1 Because no jury was timely demanded
under this Court's rules,
{*437} however,
the petition alleging delinquency was heard by the children's court without a
jury.
2 The court ordered Eric committed to
the Juvenile Facilities Division of the Children, Youth and Families Department
for a period not to exceed two years.
{2} Eric appealed to
the Court of Appeals claiming deprivation of his constitutional right to
effective assistance of counsel and his constitutional right to a jury trial.
The Court of Appeals certified this case to us under NMSA 1978, Section
34-5-14(C)(2) (Repl. Pamp. 1990) (providing for certification to the Supreme
Court when the issue is one of substantial public interest). On appeal we
address whether the children's court erred in concluding that Eric was not
entitled to a jury trial because he failed to make a timely jury demand as
provided in Rule
10-228(A) NMRA (1996). We reverse.
{3} 3. Proceedings.
The petition alleging delinquency was filed on June 1, 1994. On June 2, Eric
first appeared before the children's court. The court appointed an attorney for
the child, and on June 7 an assistant public defender entered an appearance as
Eric's counsel. On June 22, at a docket call, the court inquired whether the
case was set for a jury trial. A written demand for jury trial had not been
made, but Eric's attorney at this time orally requested a jury trial. The
attorney stated that demands were routinely filed in juvenile delinquency
proceedings and that he did not know why a demand had not been filed in this
case. The children's court judge suggested defense counsel file a written
demand but determined that the time for requesting a jury trial had run. The
judge indicated that he would deny defendant's request for a jury trial as
untimely under Rule 10-228(A), which provides:
A demand for trial by jury in delinquency proceedings
shall be made in writing to the court within ten (10) days from the date the
petition is filed or within ten (10) days from the appointment of an attorney
for the respondent or entry of appearance by counsel for the respondent,
whichever is later. If demand is not made as provided in this paragraph, trial
by jury is deemed waived.
{4} The order of
certification from the Court of Appeals. In its order of certification to
this Court, the Court of Appeals noted:
This case appears to be indistinguishable from State
v. Doe, 94 N.M. 637, 614 P.2d 1086 , in which this Court held that a
juvenile charged with a delinquent act which would be a felony if committed by
an adult did not waive the right to a jury trial absent an understanding and
intelligent waiver. Id. at 640, 614 P.2d at 1089.
The committee commentary to SCRA 10-228(A) suggests
that the Supreme Court has rejected Doe by promulgating (and
repromulgating) that rule. It is not clear that the committee commentary
considered the applicability of NMSA 1978, Section 32A-1-16(A) (Repl. Pamp.
1993).
Having accepted the Court of Appeal's certification on the
issue of the impact of Rule 10-228 on a juvenile's waiver of the
constitutionally protected right to a jury trial, we do not reach the issue of
ineffective assistance of counsel.
{5} A juvenile's
constitutional right to a jury trial. "A juvenile charged with violation
of a state law . . . is entitled to a trial by jury . . . ."
Peyton v.
Nord,
78 N.M. 717, 726,
437 P.2d 716, 725 (1968). In
Peyton this
Court considered a state statute that had been interpreted by the lower court
as limiting a juvenile's right to trial by jury.
3
We found that the statute had been improperly applied to limit a child's right
to a jury trial. We reasoned that since "at the time of the
{*438} adoption of our [state] constitution [a
child] could not have been imprisoned without a trial by jury[,] . . . . no
change in terminology or procedure may be invoked whereby incarceration could
be accomplished in a manner which involved denial of the right to jury
trial."
Id. at 724, 437 P.2d at 723. Like the statute in
Peyton,
Rule 10-228 cannot limit a juvenile's constitutional right to trial by jury.
See,
e.g.,
Marquez v. Wylie,
78 N.M. 544, 546,
434 P.2d 69, 71 (1967)
(holding that rules of court are subject to same constitutional constraints
applicable to statutes).
{6} In
State v. Doe,
94 N.M. 637, 639,
614 P.2d 1086, 1088 (Ct. App.)
cert. denied,
94 N.M.
675,
615 P.2d 992 (1980), the Court considered Rule 48(a) of the Rules of
Procedure for the Children's Court, a previous version of Rule 10-228 with identical
language. The question before the Court was whether a juvenile waives the right
to a jury trial when a proper request under the rule is not made. 94 N.M. at
639-640, 614 P.2d at 1088-1089. The Court held that a juvenile charged with a
felony, or with an act which would have been a felony if committed by an adult,
may waive the right to a jury trial "'only when advised by counsel and
[when] it is amply clear that an understanding and intelligent decision has
been made.'"
Id. at 640, 614 P.2d at 1089 (quoting
Peyton,
78 N.M. at 725, 437 P.2d at 724). "We understand
Peyton v. Nord. .
. to hold that the right to a jury trial is a matter of constitutional right.
The demand requirement in § 32-1-31(A)
4
would be ineffective to change that right."
Id.
{7} There is no
question in this case that Eric did not make an understanding and intelligent
decision to waive his right to a jury trial. He was never counseled in this
matter and therefore could not have understood or intelligently waived his
right. His attorney was surprised that a demand for jury trial had not been
filed and, immediately on discovering that a request had not been filed, made
an oral request.
{8} The committee
commentary to Rule 10-228. The committee commentary to Rule 10-228 states
that:
In State v. Doe, 94 N.M. 637, 614 P.2d 1086 the
New Mexico Court of Appeals held that under Peyton v. Nord. . . a
juvenile has a right to a jury trial unless there is a waiver. . . . The
committee does not believe that case law in criminal cases relating to the
issue of waiver [requirements for an adult] was extended to juvenile
proceedings by the Peyton decision. The supreme court by readopting Rule
10-228 concurs in this belief.
The committee commentary is incorrect. Rule 10-228 is not
intended to abrogate the rule announced in Peyton and interpreted by Doe.
We confirm the holding of Doe that a child has a constitutional right to
a trial by jury and is "to be accorded that right absent a waiver."
94 N.M. at 640, 614 P.2d at 1089. Rule 10-228, by encouraging a counseled
decision at an early stage of the proceedings, provides a mechanism for
determining the child's intentions within an appropriate period.
{9} The committee
correctly inferred that not all of the formalities mandated in a proceeding
involving an adult are required in children's court to effect a proper waiver.
In a proceeding involving an adult, for example, "before any waiver [of
the right to a jury trial] can become effective, consent of government counsel
and the sanction of the court must be had, in addition to the express and
intelligent consent of the defendant."
State v. Dean,
105 N.M. 5,
7,
727 P.2d 944, 946 (Ct. App.),
cert. denied 105 N.M. 5,
727 P.2d 944
(1986);
see also Rule
5-605(A) NMRA (1996) (requiring waiver to be
accompanied by 'the approval of the court and the consent of the state'). In a
juvenile proceeding the express and intelligent consent to waive a jury trial,
given by the juvenile to defense counsel, is sufficient to satisfy the
requirements of due process.
{10} Given a
juvenile's constitutional right to trial by jury, we hold that Rule 10-228 can
do no more than encourage a counseled decision at an early stage of the
proceedings. We note that Rule
10-106(B) NMRA (1996) provides for the
enlargement
{*439} of time without
motion or notice if a request is made before the period expires and upon motion
made after expiration of the specific period if "the failure to act was
the result of excusable neglect." We expect counsel to confer with the
child within the time specified or to request an extension of time within which
to confer with the child. The child's right to a jury trial, however, can be
waived only through an understanding and intelligent decision by the child, not
through neglect of counsel. In this case, on the facts shown, the time to
request a jury trial should have been extended. While Rule 10-228 serves the
important purpose of promoting the efficient functioning of the juvenile
courts, this purpose cannot infringe on a constitutionally protected right.
"The need for simplicity and procedure is outweighed by the need to
safeguard the constitutional rights of the child."
State v. Doe,
95
N.M. 302, 304,
621 P.2d 519, 521 .
{11} Conclusion. For
the foregoing reasons we reverse and remand for trial by jury.
RICHARD E. RANSOM, Justice
JOSEPH F. BACA, Chief Justice
GENE E. FRANCHINI, Justice
PAMELA B. MINZNER, Justice
DAN A. MCKINNON, III, Justice
1
As discussed later in this opinion, a child's right to a jury trial is
guaranteed by the New Mexico Constitution. Also, the Children's Code, NMSA §§
32A-1-1 to 32A-21-7 (Repl. Pamp. 1995 & Cum. Supp. 1996), provides that
"a jury trial on the issues of alleged delinquent acts may be demanded by
the child, parent, guardian, custodian or counsel in proceedings on petitions
alleging delinquency when the offense alleged would be triable by jury if
committed by an adult." Section 32A-2-16(A) (Repl. Pamp. 1995).
2
"Jury trials shall be conducted in accordance with rules promulgated under
the provisions of Subsection B of Section 32-1-4 [32A-1-5] NMSA 1978."
Section 32A-2-16(A). Section 32A-1-5(B) states that "the supreme court
shall adopt rules of procedure not in conflict with the Children's Code [this
chapter] governing proceedings in the children's court, including rules and
procedures for juries."
3
In Peyton the Court reviewed several statutory provisions, including
NMSA 1953, Section 13-8-49 (Supp. 1967): "All cases of juveniles coming
under the jurisdiction of the juvenile court shall be dealt with by the court
at separate hearings and without a jury." 78 N.M. at 725, 437 P.2d at 724.
4
"A jury trial on the issues of alleged delinquent acts may be demanded . .
. . If no jury is demanded the hearing will be by the court without a jury . .
. ." NMSA 1978, § 32-1-31(A).