Background
Joshua Shane Freeman was convicted of criminal sexual penetration in the second degree (CSP II) under NMSA 1978, Section 30-9-11(E)(1). During jury deliberations, the jury sent two written questions to the trial court: one asking whether CSP II was comparable to statutory rape, and another asking for the legal definition of “physical force.” In both instances, Freeman was not present when the questions were discussed or when the trial court’s responses were sent. Defense counsel purported to waive Freeman’s presence, but the trial court did not take steps to ensure the waiver was made voluntarily, knowingly, and intelligently by Freeman himself.
The trial court responded to both questions by directing the jury back to the previously provided jury instructions. Freeman had been present for the settling of those instructions. He was convicted and appealed, arguing his constitutional right to be present during communications between the court and the jury had been violated.
The Court of Appeals held the communications did not fall under any applicable exception to the presence requirement—neither the Rule 5-612(D)(3) “conference or hearing upon a question of law” exception nor the Rule 5-610(D) “ministerial matter” exception—and that a presumption of prejudice arose. Nevertheless, the Court of Appeals found the State rebutted that presumption and affirmed the conviction. Both sides sought certiorari: Freeman challenged the rebuttal analysis; the State challenged the threshold finding that Freeman had a right to be present at all.
The Court’s Holding
The New Mexico Supreme Court affirmed the conviction. On the threshold question, the Court agreed with the Court of Appeals that neither exception applied. The Rule 5-612(D)(3) exception—which excuses a defendant’s presence at “a conference or hearing upon a question of law”—has only been applied in the limited context of pretrial hearings (such as expert-qualification hearings) and does not extend to communications between the trial court and a deliberating jury, even when those communications involve pure questions of law. The Court declined to extend the exception, emphasizing that court-jury communications carry unique risks: juries give great weight to judicial statements, such communications may affect last-minute tactical decisions, and the defendant is constitutionally entitled to help shape what is communicated. Similarly, the two jury questions—asking about the nature of the charge and the meaning of “physical force”—directly concerned the subject matter of the case and were therefore not “ministerial matters” under Rule 5-610(D).
On the prejudice question, the Court adopted a principle suggested (but not squarely held) in State v. McClure, 1980-NMCA-067: when improper court-jury communications do nothing more than refer the jury back to previously given instructions, the State can affirmatively rebut the presumption of prejudice on that basis alone. The Court reasoned that such a response adds nothing new, does not comment on deliberations, was made on the record and in the presence of counsel, and involves instructions that the defendant had the opportunity to help craft and that are presumed legally correct.
The Court also rejected Freeman’s argument that the harmless-error analysis required consideration of what impact his presence might hypothetically have had. Under New Mexico law, the focus of the rebuttal inquiry is on whether the improper communication itself affected the verdict—not on what a defendant might have done differently had he been present.
Key Takeaways
- The Rule 5-612(D)(3) “conference or hearing upon a question of law” exception does not apply to communications between a trial court and a deliberating jury; it is limited to discrete pretrial hearings and conferences, even when the jury’s question raises a pure legal issue.
- Jury questions that concern the charge being deliberated or the elements of the offense are not “ministerial matters” under Rule 5-610(D) and therefore require the defendant’s presence.
- The Court formally adopted the McClure principle: when a trial court’s response to improper jury communications does no more than direct the jury to previously given—and presumptively correct—instructions, the State has made a sufficient affirmative showing to rebut the presumption of prejudice.
- The harmless-error burden in improper jury-communication cases falls on the State to show the communication did not affect the verdict; the defendant is not required to demonstrate what additional prejudice resulted from his absence.
Why It Matters
This decision clarifies the outer boundary of two narrow exceptions to a criminal defendant’s constitutional right to be present, confirming that neither exception reaches the ongoing dialogue between a trial court and a deliberating jury. Defense practitioners can no longer expect courts to excuse a defendant’s absence from jury communications simply because the question posed is framed as a legal one. At the same time, the Court’s endorsement of the McClure rebuttal principle gives prosecutors and trial courts a clear, workable path: if the response to a jury question is strictly limited to pointing back at the existing instructions, that alone—combined with an on-the-record written exchange in the presence of counsel—can be sufficient to overcome the presumption of prejudice.
The opinion also serves as a reminder that counsel cannot unilaterally waive a defendant’s personal presence at critical stages without the trial court first verifying that the waiver is voluntary, knowing, and intelligent. Courts that skip that verification step risk exactly the situation presented here—conceding a constitutional violation and litigating the prejudice question on appeal.