State v. AlingogState v. Alingog
- Reporters:
- , ,
- Before:
- Ransom Justice., Franchini, Frost
OPINION
RANSOM, Justice.
On petition of Victoria Alingog, we issued our writ of certiorari to the Court of Appeals to consider whether, in the context of double-jeopardy principles, it was appropriate for the Court to apply the doctrine of fundamental error to the advantage of the State in its appeal of the trial court‘s dismissal of a criminal charge. See State v. Alingog, 116 N.M. 650, 866 P.2d 378 (Ct.App.1993). Two opinions of the United States Supreme Court are at the heart of the controversy: Ohio v. Johnson, 467 U.S. 493, 501-02, 104 S.Ct. 2536, 2541-43, 81 L.Ed.2d 425 (1984) (stating that defendant who pleads guilty to fewer than all charges in a single prosecution for the same offense is not entitled to dismissal of remaining charges prior to jury verdict); and Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977) (holding that double-jeopardy principles preclude prosecution on subsequent charge of greater offense following plea of guilty and sentencing on lesser included offense). See also United States v. Dixon, ___ U.S. ___, ___, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993) (overruling Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and stating that successive prosecutions need not satisfy the Grady “same conduct” test1 to avoid double jeopardy).
After a Border Patrol Agent stopped Alingog for driving erratically, Alingog was released upon the radioed command of a state police sergeant. When the agent saw Alingog drive off erratically, he again stopped her and requested that the sergeant personally come to the site of the second stop. While waiting for the sergeant to arrive, Alingog drove away. The agent, the state police, and county sheriff deputy Bill Woltz, among others, began to pursue Alingog. After they forced her to stop, Woltz got out of his car and began walking toward her car. Alingog put her car into reverse and drove toward Deputy Woltz, although there was room for her to go around him. Woltz jumped out of the way and fired at Alingog‘s car. After a high-speed chase, Alingog was stopped at a road block several miles north of the place where Deputy Woltz had almost been hit. She had to be physically removed from her car and resisted arrest when officers tried to handcuff her.
Alingog was charged with the felony of aggravated assault on a peace officer with a deadly weapon (motor vehicle) under
Addressing a pretrial motion to dismiss, Alingog argued to the trial court that, as would be demonstrated at trial, the incident involved one continuous act of resisting and that, in fact, the State had charged only one act in its traffic citation and information. Citing Brown for support, she contended that because she had pleaded guilty to resisting arrest, which is a lesser included offense of aggravated assault on a peace officer if it arises from the same act, she could not be successively tried on the greater offense. The district court took the motion under
The district court granted the motion to dismiss, holding that the act had to be considered unitary (“same conduct“) because of the charging documents and that Alingog had a right to rely on those documents to determine the basis of her charge of resisting arrest and, consequently, her plea of no contest. The court held that because Alingog had pleaded no contest to resisting an officer in reliance on the charging documents and because the State had accepted a plea to that lesser included offense, she could not successively be tried on the greater offense of aggravated battery arising from the same act.
On appeal to the Court of Appeals, the State argued that the court erred in finding a double-jeopardy violation. The State for the first time, however, based its argument on Johnson. Under Johnson, if after pleading guilty to a lesser included offense, a defendant is found guilty of the greater offense, the trial court may enter judgment of conviction and sentence only for the latter offense. 467 U.S. at 501-02, 104 S.Ct. at 2541-43. Alingog argued that the State failed to preserve this issue for review by not bringing Johnson to the trial court‘s attention. In its reply brief, the State argued that error was preserved by presenting the general question of whether a double-jeopardy violation in fact occurred.
Alternatively, the State argued that because the issue involved a question of public interest, the appellate court could consider it in its discretion under
The State failed to preserve error by failing to draw the court‘s attention to the fact that this was a single prosecution. In her motion to dismiss, Alingog based her double-jeopardy argument on the prohibition against a “successive prosecution for the same crime” as found in Brown. Brown supports the principle that a defendant who pleads guilty to and is sentenced for a lesser included offense cannot be reprosecuted for a greater offense arising from the same act. See 432 U.S. at 169, 97 S.Ct. at 2227 (stating double jeopardy “forbids successive prosecution and cumulative punishment for a greater and lesser included offense“); United States v. Santiago Soto, 825 F.2d 616, 619 (1st Cir.1987) (holding that under Brown, jeopardy attaches not upon acceptance of guilty plea, but at time of imposition of sentence and entry of judgment); United States v. Combs, 634 F.2d 1295, 1298 (10th Cir.1980) (holding that acceptance of guilty plea immediately before trial for greater offense was not a criminal prosecution because “[u]ntil entry of judgment and sentencing on the accepted guilty plea, defendant had not been formally convicted“), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 304 (1981); cf. Johnson, 467 U.S. at 501-02, 104 S.Ct. at 2541-43 (distinguishing Brown because the
Instead of arguing that acceptance of the no contest plea did not make trial on the greater offense a “successive prosecution” and that Brown thus did not control, the State persisted in arguing only that the aggravated assault was not the same offense. Thus, the trial court‘s ruling on the issue of successive versus single prosecutions was not fairly invoked as required by our rules of procedure and case law. See
Principle of fundamental error affords review of State‘s unpreserved questions only if miscarriage of justice has resulted. The doctrine of fundamental error is invoked when a court considers it necessary to avoid a miscarriage of justice. State v. Ortega, 112 N.M. 554, 566, 817 P.2d 1196, 1208 (1991). Under
Court of Appeals should not have reviewed unpreserved error because State received substantial justice. We agree, nonetheless, with the dissenting views of Judge Pickard in the Court of Appeals that failure to reach the Johnson issue in this case would not result in a miscarriage of justice. See Alingog, 116 N.M. at 664, 866 P.2d at 392 (Pickard, J., dissenting). The failure by the state to preserve error obviously does not itself constitute a miscarriage of justice; a miscarriage must exist notwithstanding failure to preserve error. Our rules requiring the preservation of questions for review are designed to do justice, and it is only when the merits of applying those rules clearly are outweighed by other principles of substantial justice that we will apply the doctrine of fundamental error. “Rules of practice and procedure are devised to promote the ends of justice, not to defeat them.... Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.” Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941).
The Court of Appeals correctly opines that “the State‘s willingness to accept a plea to a lesser charge has [no] bearing on the State‘s entitlement to seek a determination of guilt or innocence on the more serious charge.” Alingog, 116 N.M. at 652-53, 866 P.2d at 380-81. We also perceive no prosecutorial overreaching that would call for the application of double-jeopardy principles in the single prosecution of multiple counts involving the same offense. While the State unquestionably was deprived of an opportunity to convict of the greater offense, there remains the question whether that deprivation constitutes fundamental error. The trial court decided the case presented by the parties, finding that under either the charge or
The principles of substantial justice relied upon by the Court of Appeals as outweighing the rules requiring preservation of error are (1) the public‘s “strong interest in seeing suspected criminals prosecuted” and (2) the advantage the Defendant took of the State through her trial tactics, including defense counsel‘s failure to call the judge‘s attention to the law that would favor the State if this were to be deemed a single as opposed to a successive prosecution. Alingog, 116 N.M. at 656, 866 P.2d at 384. Although the rules of professional conduct do provide that a lawyer shall not knowingly “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel,”
As Judge Pickard notes in her dissent, “part of the purpose of the double jeopardy clause is to prevent the State `with all its resources and power’ from harassing individuals.” Alingog, 116 N.M. at 663-64, 866 P.2d at 391-92 (citing Swafford, 112 N.M. at 7, 810 P.2d at 1227). Under the Court of Appeals opinion, it is only because the State did not properly present the multiple-punishment issue that on remand the State would now enjoy a rehearsed trial of the greater offense. It seems that if there is any miscarriage of justice calling for application of the fundamental-error doctrine, it is the rehearsed trial and not the State‘s loss of its chance to convict of the greater offense — a loss attributable to error that the State neither raised nor preserved in the trial court. We see no manifest injustice to the State, and we believe that the fundamental rights of the Defendant to be free from once again being put at jeopardy following a rehearsal that was concurred in and prosecuted by the State would itself be manifestly unjust.
Conclusion. Because the State failed to preserve error at trial, because that unpreserved error did not result in a miscarriage of justice, and because placing Alingog at jeopardy a second time following a rehearsed trial is suspect, we hold that Court of Appeals erred in reviewing the unpreserved error. We reverse the Court of Appeals and affirm the trial court.
IT IS SO ORDERED.
FRANCHINI and FROST, JJ., concur.