State v. Reed, 510 P.3d 1261

Background

Two men robbed an Alamogordo restaurant; the taller man (defendant Reed) struck owner Katherine Budak in the head with a gun, entered the restaurant, and threatened employees; the shorter accomplice was later identified as D’Andre Howell.
Ms. Gunn (an employee) was ordered to lie down, had a gun touched near her throat, and was later physically lifted to retrieve money; the robbers took about $60–$150.
Howell later admitted involvement and identified Reed as the taller man; Howell testified for the State at Reed’s trial.
By stipulation the jury was informed Reed was a felon; Reed was convicted of armed robbery, conspiracy to commit armed robbery, false imprisonment (as a lesser of kidnapping), possession of a firearm by a felon, aggravated battery with a deadly weapon, and two counts of aggravated assault with a deadly weapon.
On appeal Reed argued (1) several convictions violated double jeopardy because they were subsumed by armed robbery, and (2) trial counsel provided ineffective assistance (failure to move to sever felon-in-possession and failure to probe Howell’s later criminal history).

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Reed)	Held
Whether convictions for aggravated battery (Budak), one count of aggravated assault (Gunn), and false imprisonment (Gunn) are double‑jeopardy violations because subsumed by armed robbery	The force used for each conviction was distinct in time or by victim; multiple acts could support separate convictions; alternatively, jury could have relied on different conduct	The same use of force (hitting Budak and pointing/pressing a gun at Gunn) supplied the force/intimidation for armed robbery and the lesser offenses, so the lesser convictions merge into armed robbery	Vacated aggravated battery (Budak), one aggravated assault (Gunn), and false imprisonment (Gunn). Court applied the Foster presumption and the modified Blockburger analysis and concluded the State’s theory allowed the jury to rely on the same conduct for multiple convictions, so double jeopardy barred multiple convictions
Whether trial counsel was ineffective for failing to move to sever the felon‑in‑possession charge from other charges	The record does not show deficient strategy; the appellate record is inadequate to determine counsel’s reasons	Counsel should have moved to sever because the felon‑possession charge risked prejudice	Not a prima facie case on direct appeal; record inadequate to establish deficiency—claim preserved for habeas review
Whether trial counsel was ineffective for not cross‑examining Howell about criminal history after the robbery	Trial counsel conducted extensive cross‑examination about truthfulness and plea deal; further impeachment was speculative and admissibility discretionary	Counsel should have impeached Howell with subsequent convictions to weaken his credibility	Not a prima facie case; counsel’s cross‑examination was not constitutionally deficient and further questioning/admission of records would be speculative

Key Cases Cited

Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (N.M. 1991) (unitary‑conduct test for double description/double jeopardy analysis)
Foster v. State, 126 N.M. 646, 974 P.2d 140 (N.M. 1999) (presumption that a jury may have relied on a prejudicial alternative in an instruction)
State v. Sena, 470 P.3d 227 (N.M. 2020) (Foster presumption can be rebutted where crimes were separated by time/intervening events)
State v. Bernal, 140 N.M. 644, 146 P.3d 289 (N.M. 2006) (double description framework and unitary conduct inquiry)
Fuentes v. State, 119 N.M. 104, 888 P.2d 986 (N.M. Ct. App. 1994) (robbery protects property interests; aggravated battery protects bodily integrity)
State v. Santillanes, 130 N.M. 464, 27 P.3d 456 (N.M. 2001) (lesser offense must merge into greater; conviction of lesser vacated)
State v. Gutierrez, 258 P.3d 1024 (N.M. 2011) (modified Blockburger applied where statutes contain multiple alternatives)
State v. Montoya, 306 P.3d 426 (N.M. 2013) (look to elements and State’s theory to assess subsumption)
State v. Swick, 279 P.3d 747 (N.M. 2012) (use of modified Blockburger in double‑jeopardy analysis)
Blockburger v. United States, 284 U.S. 299 (1932) (same‑elements test for multiple punishments)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance of counsel)