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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-115

Filing Date: August 26, 2009

Docket No. 27,859 

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

THERESA QUINTANA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY

Ricky D. Purcell, District Judge

Gary K. King, Attorney General

Farhan Khan, Assistant Attorney General 

Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender

Stephanie Erin Brunson, Assistant Appellate Defender

Santa Fe, NM 

for Appellant

OPINION

ROBLES, Judge.

{1} Theresa Quintana (Defendant) stood trial in February 2007 for violating NMSA

1978, Section 30-3-13(A)(1) (1995) (aggravated assault against a household member) and

NMSA 1978, Section 30-15-1 (1963) (criminal damage to property). A jury convicted her

of the assault charge and acquitted her of the other. Defendant now appeals her conviction,

alleging that (1) the trial court abused its discretion in denying her motion for a continuance,

(2) the jury selection process violated her right to due process and an impartial jury, and (3)

there was insufficient evidence to support a conviction. Although we hold that there was
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sufficient evidence to support Defendant’s conviction in this case, we nevertheless vacate

the conviction because the jury selection process violated Defendant’s rights to due process

and an impartial jury. Accordingly, we reverse and remand for a new trial. We need not

address Defendant’s first argument because of the remand.

I. BACKGROUND

{2} Shortly after midnight on January 30, 2006, police responded to a 911 call, reporting

a domestic disturbance involving a woman with a gun. Police arrived and found Defendant

sitting on the front porch of Patrick Arrellano’s home. A pat-down of both Defendant and

Arrellano revealed that neither of them was armed. Arrellano told the police that Defendant

had pointed a gun at him, and he had grabbed the gun away and thrown the gun into a field.

Arrellano further stated that Defendant had broken his bedroom window and had attacked

his truck with a two-by-four. A search of the field by police uncovered a handgun.

Defendant was arrested and, on June 8, 2006, a criminal information charged Defendant with

one count of aggravated assault against a household member and one count of criminal

damage to property (over $1000). In mid-January of 2007, Defendant had gone to trial on

unrelated drug charges (first trial). Her trial in the present case was scheduled for February

6, 2007. This resulted in the use of substantially the same jury pool for both trials.

Additional facts about the charges and about the composition of the jury will be developed

in the context of the issues discussed.

II. DISCUSSION 

{3} We consider two issues raised by Defendant: Did the jury selection process violate

her rights to due process and a fair and impartial trial and was there substantial evidence to

support her conviction? We begin with the jury selection process.

A. Jury Selection Process

{4} The facts surrounding the jury selection are not in dispute in this case. What remains

are questions of law, which we review de novo. See State v. DeGraff, 2006-NMSC-011, ¶

6, 139 N.M. 211, 131 P.3d 61. 

{5} Defendant’s trial was originally set for December 19, 2006, but on November 28,

2006, the State requested and was granted a continuance due to a scheduling conflict. A

request to extend the six-month rule was also filed by the State, with which Defendant

agreed, and the district court approved. On December 19, Defendant learned that she was

scheduled to go to trial on January 17, 2007 on unrelated drug charges. The day after the

trial on the drug charges, Defendant learned that the trial in this case had been set for

February 6, 2007. Additionally, Defendant learned that the jury pool for this case, consisting

of forty-seven potential jurors, would be substantially comprised of individuals that sat

through voir dire or were on the jury in her first case. Specifically, eight members of the

jury pool in this case were on Defendant’s first jury, twenty-two members of the jury pool
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on this case sat through voir dire on the first case, and sixteen members of the jury pool on

this case had no previous contact with either case. 

{6} Defendant alerted the trial court to her concern about prejudice in a motion and

petition both filed on January 26, 2007. In these pleadings, Defendant stated that more time

was needed to prepare for trial, that forcing Defendant to go to trial in front of the same jury

pool would be “extremely prejudicial,” and that “her prior case may negatively influence

potential jurors.” The State did not concur in the granting of the motion or petition. On the

morning of trial in this case, Defendant again requested a continuance. Defendant argued

that a continuance was needed due to the lack of time to prepare for the trial. Further,

Defendant argued that coming in front of the same jury pool unduly prejudiced her, and that

extra-judicial knowledge of prior bad acts should not be given to the jurors because such

information would be inadmissible in this case. Regarding the overlapping jury pools, the

district court stated that it would allow those potential jurors that actually sat on the jury in

the first trial to be challenged for cause without actually questioning them. Defendant did

request that those eight jury pool members be struck before voir dire. Although the district

court did allow those eight who were on the first jury to be struck for cause, it would appear

from the record that they still sat through voir dire with the other thirty-nine members in the

pool. 

{7} At the opening of voir dire, the district court read the charges against Defendant and

asked if any of the potential jurors knew Defendant. None of the potential jurors responded

by referring to the first case. Defendant used all five of her peremptory challenges.

Ultimately, the selection process resulted in a jury that included eight individuals who sat

through voir dire in the first trial. Three of those eight had been preemptively struck by the

defense in the first trial. 

{8} Defendant points out that this issue about jury selection has never been substantially

reviewed by an appellate court and requests this Court to provide direction to lower courts

in similar situations. Relying on New Mexico Constitution, Article II, Sections 12 and 14,

Defendant argues that her right to an impartial jury was violated by the empaneling of jurors

who knew of other charges against her. According to Defendant, it was error for the jury to

learn about her prior criminal history without regard to its admissibility subject to Rule 11-

404(B) NMRA. Further, Defendant contends that the jury’s knowledge of such information

was irrelevant to the present case, it irreparably and needlessly tainted the jury in this case,

there were no efforts to ensure impartiality of the jury pool, and dissemination of such

information was knowingly sanctioned by the court. Defendant cites to cases in which a

similar issue was decided. See Leonard v. United States, 378 U.S. 544 (1964) (reversing

conviction and remanding for a new trial where members of a jury heard the verdict on the

defendant’s unrelated case before the start of the trial on which they served); United States

v. Mason, 440 F.2d 1293 (10th Cir. 1971) (discussing a potential taint to a jury pool where

members of a jury in a case that ended in mistrial sat through voir dire on the second trial).

Defendant also cites to Marrero v. State, 343 So. 2d 883 (Fla. Dist. Ct. App. 1977) to

support her proposition. In that case, the defendant had two trials that were one day apart.

The potential jury pool for the second trial was comprised of individuals who heard voir dire
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the day before on the first case and were aware of the defendant’s other criminal charges.

Id. at 884. The court reasoned that because it was error for a witness to testify about a

defendant’s arrest for an unrelated crime, it was similarly error for the jury to obtain

information about a defendant’s other criminal charges through the voir dire process. “[A]

jury is bound to be unfairly prejudiced against the accused by reason of the knowledge of

his arrest for another crime. Allowing the jury to sit through the voir dire of appellant’s trial

on totally separate charges on the preceding day clearly falls in the same category.” Id. 

{9} The State makes two arguments that support affirmance. First, the State argues that

the jury in the this case was fair and impartial. To support its position, the State points out

that Defendant was acquitted of the criminal damage to property charge and claims that

Defendant has failed to show actual prejudice. Second, the State argues that the jury was

thoroughly questioned and carefully instructed during voir dire. The jury affirmed that they

understood that Defendant is presumed innocent and to determine the facts from the

evidence produced in court. 

{10} The State’s double-pronged argument is similar to the analysis of the court in United

States v. Patterson, 648 F.2d 625, 629 (9th Cir. 1981), which supports Defendant’s position

in the present case. There, half the prospective jurors on the defendant’s case had also been

prospective jurors on the defendant’s other criminal trial a day earlier. Id. The court stated

that “overlapping venires otherwise require reversal only if (1) the specific circumstances

suggest a significant risk of prejudice and (2) examination or admonition of the jurors fails

to negate that inference.” Id. The court concluded that there was a significant risk of

prejudice because the offenses were similar, and the trials were only one day apart. Id.

Likewise, the court determined that the examination of the potential jury on voir dire did not

specifically target the experience that some of the potential jurors had of the previous trial

and did not negate the inference of prejudice. Id. at 630.

{11} We disagree with the State. A defendant in a criminal trial has the right to a fair and

impartial jury. The New Mexico Constitution, Article II, Section 12 provides that “[t]he

right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.”

Similarly, Article II, Section 14 of the New Mexico Constitution guarantees defendants an

“impartial jury,” which means “a jury where each and every one of the twelve members

constituting the jury is totally free from any partiality whatsoever.” State v. McFall, 67 N.M.

260, 263, 354 P.2d 547, 548 (1960); see State v. Holly, 2009-NMSC-004, ¶ 17, 145 N.M.

513, 201 P.3d 844 (noting with approval the ABA Standards For Criminal Justice, Fair Trial

and Free Press, Section 8-3.6(e) (3d ed. 1991), which states: 

The standard for excusing a juror who is challenged on the basis of such

exposure [to material beyond the scope of which the case is to be submitted]

should be the same as the standard of acceptability recommended in standard

[Section] 8-3.5(b), except that a juror who has seen or heard reports of

potentially prejudicial material should be excused if reference to the material

in question at the trial itself would have required a mistrial to be declared.
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Id. (internal quotation marks omitted).)

{12} ABA Standard Section 8-3.5(b) states: 

Whenever prospective jurors have been exposed to potentially

prejudicial material, the court should consider not only the jurors’ subjective

self-evaluation of their ability to remain impartial but also the objective

nature of the material and the degree of exposure. The court should exercise

extreme caution in qualifying a prospective juror who has either been

exposed to highly prejudicial material or retained a recollection of any

prejudicial material.

{13} In State v. Garcia, this Court provided the reasoning behind limiting evidence of

other offenses: 

A person put on trial for an offense is to be convicted if at all on

evidence showing he is guilty of that offense. The defendant is not to be

convicted because, generally, he is a bad man, or has committed other

crimes. Evidence of other offenses tends to prejudice the jury against the

accused and predispose the jury to a belief in the defendant’s guilt. 

83 N.M. 51, 53, 487 P.2d 1356, 1359 (Ct. App. 1971). This is just the type of prejudice

Defendant asserts occurred in this case. 

{14} In Holly, our Supreme Court examined the possible prejudicial impact on a jury of

mid-trial publicity. 2009-NMSC-004, ¶ 8. Holly adopted a three-step procedure to guard

against jury exposure to potentially harmful publicity. Id. ¶¶ 18-19.

First, the trial court determines whether the publicity is inherently

prejudicial. If so, the court undertakes to canvass the jury as a whole to assess

whether any of the jurors were actually exposed to the publicity. Finally, in

the event of exposure, the court conducts an individual voir dire of the juror

to ensure that the fairness of the trial has not been compromised.

Id. ¶ 19. The approach that the Supreme Court took in determining whether publicity is

prejudicial is helpful here. The Supreme Court advised district courts that, in their initial

determinations, they should consider (1) whether the publicity goes beyond the record, or

contains information that would be inadmissible at trial; (2) how closely related the material

is to matters at issue in the case; (3) the timing of the publication during trial; and (4)

whether the material speculates on the guilt or innocence of the accused. In addition, the

district court should consider the likelihood of juror exposure. Id. ¶ 20. 

{15} Other courts have found prejudice in similar situations concerning overlapping jury

pools. See Leonard v. United States, 378 U.S. 544, 544-45 (1964) (holding that where five

members of a jury had heard a guilty verdict in the defendant’s previous unrelated case, it

was plainly erroneous to allow the second conviction to stand); United States v. Gillis, 942
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F.2d 707, 710-11 (10th Cir. 1991) (finding a significant risk of a biased jury where members

of the defendant’s jury had been potential jurors on a separate case involving the defendant

a month earlier); Wilding v. State, 427 So. 2d 1069, 1070 (Fla. Dist. Ct. App. 1983) (holding

that a defendant’s right to a fair trial was violated when the jury was improperly made aware

of the defendant’s prior criminal charges). Under the facts of the instant case, we conclude

that the knowledge by a majority of the jury of another criminal charge was inherently

prejudicial which, in turn, gives rise to an inference of prejudice. See Holly,

2009-NMSC-004, ¶ 23. The mere fact that Defendant was acquitted of one charge does not

negate the inference of prejudice and does not by necessity preclude the fact that there are

“situations wherein a juror should not serve because his judgment regarding a defendant

might be so colored that his impartiality would be destroyed and he could no longer render

a fair consideration in the trial.” State v. Baca, 99 N.M. 754, 756, 664 P.2d 360, 362 (1983).

{16} Having determined that there was an inference of prejudice, we turn to whether

examination or admonition of the jurors during voir dire failed to negate that inference. The

State argues that the jury was questioned during voir dire, and they affirmed that they

understood that “irrespective of anything in the past, [Defendant] is presumed to be

innocent.” Moreover, the jury was instructed that they were to determine the facts from “the

evidence received in court.” Finally, the State cites to State v. Case and contends that there

is a “presumption that the jury obeyed its instructions.” 100 N.M. 714, 720, 676 P.2d 241,

247 (1984). We are not convinced. 

{17} The issue in Case involved alleged juror misconduct, not jury exposure to

information about a defendant’s criminal history without the safeguards of Rules 11-403

NMRA and 11-404(B). See Case, 100 N.M. at 720, 676 P.2d at 247. Secondly, the record

reveals that this jury pool was asked general questions about prejudice and was given general

instructions about what it was to consider. In Patterson, the court noted there was no

examination during voir dire that was specifically targeted at the existence of the previous

trial. 648 F.2d at 630. The court in that case concluded that the questions did not negate the

inferences of prejudice because they were apparently asked in such a manner so as to avoid

conveying information and tainting the jury. Id. “[Q]uestions [should be] sufficiently

specific in scope and direction to provide any reasonable assurances that prejudice would

be discovered if present.” Id. (internal quotation marks and citation omitted). As the court

noted, it should be possible to ask questions of potential jurors to detect prejudice without

creating it. If that proves to be an impossible task, jurors who are likely to be prejudiced

must be excused. Id. at n.9; see Gillis, 942 F.2d at 710 (holding that catch-all questions

about impartiality were insufficient to ensure an unbiased jury).

{18} We acknowledge that there may be times when the examination or admonition of

jurors on voir dire may be adequate to overcome an inference of prejudice. See United

States v. Parmley, 108 F.3d 922, 923-24 (8th Cir. 1997) (holding that there was no error

when the defendant’s first case ended in mistrial, and members who sat through voir dire in

the first case also sat through voir dire in the second because of specific questions that

probed for possible sources of prejudice and the lack of showing that any jurors knew about

the defendant’s prior criminal history); see United States v. Hurley, 746 F.2d 725, 727-28
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(11th Cir. 1984) (holding that the specific questioning about a case that some members of

the jury pool sat through voir dire a day earlier that was related to the case at bar explored

the possible sources of prejudice and provided reasonable assurances that any actual

prejudices would come to light). 

{19} In this case, the record of the voir dire and of the jury instructions is void of any

reference to Defendant’s previous trial. General, catch-all questions about whether potential

jury members knew of any reason why their impartiality may have been impaired could not

have ensured an unbiased jury. The questions were not specific enough to either elicit

responses about the potential jurors extraneous knowledge, or to alert all parties that the

overlapping potential jurors may pre-judge Defendant’s guilt. After denial of the motion to

continue, and the motion to strike any jurors that sat on the previous panel, defense counsel

was in the untenable position of attempting to uncover any bias associated with the first case,

while at the same time not tainting the potential jurors who did not know about the first case.

The sum of the questions asked by the district court, defense, and State, were insufficient to

uncover specific prejudice, and no other precautions were taken that may have mitigated the

effect of the prejudice.

B. Sufficiency of the Evidence

{20} Because Defendant would be entitled to a dismissal of the charges on remand if the

evidence adduced at trial was insufficient to support her convictions, this Court must also

address Defendant’s challenge to the sufficiency of the evidence. See State v. Santillanes,

109 N.M. 781, 782, 790 P.2d 1062, 1063 (Ct. App. 1990). In determining whether there is

sufficient evidence to support a conviction, we ask whether a rational jury could have found

the essential elements beyond a reasonable doubt. State v. Barber, 2004-NMSC-019, ¶ 33,

135 N.M. 621, 92 P.3d 633. This Court views the evidence in the light most favorable to the

verdict and resolves all conflicts and indulges all reasonable inferences in favor of the

verdict. State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994). To the extent that

we must interpret New Mexico’s statutes, we do so de novo. State v. Duhon,

2005-NMCA-120, ¶ 10, 138 N.M. 466, 122 P.3d 50. 

{21} To find Defendant guilty of aggravated assault on a household member, the jury was

required to find beyond a reasonable doubt that (1) Defendant pointed a firearm at Arrellano;

(2) Defendant’s conduct caused Arrellano to believe that she was about to intrude on his

bodily integrity or personal safety by touching or applying force to him in a rude, insolent,

or angry manner; (3) a reasonable person in the same circumstances as Arrellano would have

the same belief; (4) Defendant used a firearm; (5) Arrellano was a household member; and

(6) this happened in New Mexico on or about January 30, 2006. See UJI 14-305 NMRA.

{22} Initially, Defendant argues that the evidence presented at trial does not support a

finding beyond a reasonable doubt that she assaulted Arrellano with a weapon. The record

reflects that the jury heard testimony from Arrellano that Defendant came over to his house,

pointed a gun at his head and chest, stated that she was “going to shoot [him],” and he

believed that she was going to shoot. Additionally, there was testimony from a police officer
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who found a gun in a field by Arrellano’s house not long after responding to the 911 call.

The gun was identified as a Ravens brand gun, and the police officer testified that a search

of Defendant’s house revealed a Ravens brand firearms box. Defendant testified that there

was a Ravens brand gun that belonged to the firearms box found in her home, but that

Arrellano had taken the gun at some point earlier in their relationship. These two conflicting

stories boil down to a question of credibility, which is the unique province of the finder of

fact. This Court will not engage in reweighing evidence, or in substituting its judgment for

that of the fact finder. State v. Ware, 118 N.M. 703, 705, 884 P.2d 1182, 1184 (Ct. App.

1994).

{23} Defendant also contends that, on the date in question, she was not a “household

member” as stated in the jury instructions because she and Arrellano had “officially ended

their relationship a week prior to the altercation.” 

{24} NMSA 1978, Section 30-3-11 (1995) states: 

[H]ousehold member means a spouse, former spouse or family member,

including a relative, parent, present or former step-parent, present or former

in-law, a co-parent of a child or a person with whom a person has had a

continuing personal relationship. Cohabitation is not necessary to be

deemed a household member for the purposes of the Crimes Against

Household Members Act.

(Emphasis added.) (Internal quotation marks omitted.) The record reflects that the jury was

given this definition before deliberation. Defendant testified that she had gone to Arrellano’s

house in order to get some of her personal property. The definition for “household member”

is clear in a plain and ordinary interpretation. The jury in this case correctly interpreted that

a continuing personal relationship has a broader meaning than what is suggested by

Defendant regarding the couple’s official relationship status. 

{25} Finally, Defendant maintains that there was insufficient evidence to show that

“Arrellano was placed in fear from the assault.” That is not the correct standard. Uniform

Jury Instruction 14-305 simply requires a showing that a defendant’s conduct caused the

victim to believe that the defendant was about to intrude on the victim’s bodily integrity or

personal safety by touching or applying force to the victim in a rude, insolent, or angry

manner. As stated above, Arrellano testified that he thought Defendant was going to shoot

him. 

{26} We have reviewed Defendant’s claims and conclude that they have no merit.

Accordingly, we hold that there was sufficient evidence such that a jury could convict

Defendant of aggravated assault on a household member, contrary to Section 30-3-13(A)(1).

III. CONCLUSION 
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{27} For the above reasons, we conclude that the jury selection process was fundamentally

unfair and a violation of Defendant’s rights to due process and an impartial jury. We also

conclude that the evidence was sufficient such that a jury could find Defendant guilty of

aggravated assault on a household member. We reverse the conviction and remand for a new

trial.

{28} IT IS SO ORDERED.

____________________________________

ROBERT E. ROBLES, Judge

WE CONCUR:

____________________________________

JONATHAN B. SUTIN, Judge

____________________________________

CELIA FOY CASTILLO, Judge

Topic Index for State v. Quintana, No. 27,859

CL CRIMINAL LAW

CL-DO Domestic Violence

CA CRIMINAL PROCEDURE

CA-CU Continuance

CT CONSTITUTIONAL LAW

CT-DP Due Process

JG JUDGES

JG-AD Abuse of Discretion

JR JURIES

JR-IJ Impartial Jury

JR-JG Juries, General

JR-JS Jury Selection