State v. Frazier

2007-NMSC-032

164 P.3d 1 Mexico,

STATE of New

Plaintiff-Appellee, FRAZIER, Defendant-Appellant.

Jarrell 29,138.

No.

Supreme Court of New Mexico.

May

Rehearing Denied June

(‘Wilson”), brutally Kelly beat Knoll (“Knoll”) a truck a residential in front of neighborhood street the Kirtland Addition Knoll, beating After Frazi- Albuquerque. wiped down truck with er Wilson truck, rags, placed in the of the Knoll back again. yet him Knoll was then kicked away times driven a mile and shot five about in the of the truck either Frazier back gun- Wilson. The cause of Knoll’s death was shot wounds to his head and chest. Vigil responded a call from a Officer to Kerr, LLC, Kerr, E. E. Liane Albu- Liane shortly neighbor. Arriving at the after scene NM, Appellant. for querque, left, Vigil heard several the truck had Officer General, King, Attorney Anita Gary K. gunshots coming from the of his loca- south Carlson, General, Attorney Assistant Santa day tion. next Knoll was found dead NM, Pe, Appellee. the back the truck about a mile southeast beating from occurred. where OPINION kidnap- juryA convicted Frazier of BOSSON, Justice. predicated that same ping, felony historically appeal This continues our conspiracy kidnap- kidnapping, commit scrutiny felony New Mexico mur close battery bodily great ping, aggravated with Contreras, der statute. State harm, aggravated commit bat- conspiracy to (1995); State v. Orte N.M. harm, tery bodily two counts great (1991); ga, 112 N.M. evidence, conspiracy tampering with Harrison, P.2d 1321 Frazier tampering with commit evidence. Contreras, held that we acquitted first-degree de- was willful and principles convicting a de prohibit to commit conspiracy liberate murder and predi of both murder and the fendant The trial court sentenced murder. on which the murder is cate consecutively imprisonment Frazier life based, not con at least when years imprison- murder and twelve unitary. N.M. at 903 P.2d at duct is kidnapping. ment for time, Today inquire, we for the first predicate felony the murder and the directly appeals Frazier now actually greater of and lesser included are Court, raising two issues. See N.M. Const. every case, one subsumed within fenses (di 12-102(A)(1) VI, 2;§ Rule NMRA art other, precludes multiple, thereby which the. from convic appeal rect according to separate convictions how murder). First, Frazier first-degree tion particular offense defined the from double argues right his to be free Concluding legis felony murder. convicted violated when he was thus hold that spoken, lature has we kidnapping, the felony murder of both always subsumed into a predicate very predicate on which the conviction, felony murder and no defendant Second, Frazier based. conviction was Accordingly, convicted can be of both. trial when claims that court erred for the of reverse conviction finger certain allowed the State to introduce kidnapping. affirm all other fense of print Because we conclude evidence. convictions. separate conviction Frazier’s BACKGROUND Double Clause violates the Constitution, we vacate 14, United States early morning of April In the hours remaining (“Frazier”), affirm Frazier’s conviction. We Frazier Defendant Jarrell regarding argument his Davis convictions because along with his co-defendant Wilson fingerprint attempted evidence commission admission commission deserving punish- serious properly preserved. not more killings ment than other killer’s ON NEW MEXICO CASE FELONY LAW might mental but state be similar the circum- MURDER killing grave.” stances of the we embark on a construction of Before {6} 565, felony at at 817 P.2d 1207. Our murder pertains felony murder statute as to first-degree statute to to thus serves elevate issue, we jeopardy briefly the double first murder what would otherwise be a second- survey felony New Mexico’s murder case law. degree murder based on rationale that a have often New Mexico courts com- {7} killing in mental which killer’s state is general mented on the with which disfavor murder, second-degree consistent with but felony murder rule is viewed. As this which in the of danger- is done commission a Ortega, legal in doctrines “[f]ew noted felony, punishment equal ous deserves maligned yet have have been as shown first-degree that premeditated or de- great resiliency felony-murder a as the praved-mind murder. See id. rule.” 112 N.M. at 817 P.2d at paradox. A We observe a defendant {10} omitted); 1201(quoted authority see also who is convicted and sentenced for both § cmt. Model Penal Code 210.1 at 5-6 felony underlying murder and felony (Official 1962) Draft Revised Comments punishment equal a does not receive to that (explaining that the Model Code Penal aban- murder; premeditated for first-degree ac- he felony dons the murder doctrine as an inde- tually greater a punishment. receives He is pendent establishing liability for basis for first-degree convicted of both murder and the homicide). Proceeding criminal from this underlying predicate felony and can be sen- premise, felony our cases have into the read Thus, consecutively tenced for both. murder statute several limitations on its use. proves that a killed defendant with a only second-degree mental state sufficient for Harrison, only we held that a murder, in dangerous but a course of felony first-degree inherently danger or an felony, greater will a receive felony inherently ous committed under dan punishment a than defendant who is shown gerous support circumstances a could culpable have killed a more mental charge. murder 90 N.M. at 564 P.2d at state such as deliberate intent murder. 1324. in Subsequently, Ortega, we held that any specific the absence of more elaboration element, felony murder has a mens rea legislature, appears such an outcome presumed simply “which be cannot from the arbitrary. attempted commission or commission of a felony.” 112 N.M. at 817 P.2d question legislature We whether Therefore, a in order to convict defendant when, intended such result as we will dis- murder, prove the State must shortly, legislature cuss never ex- culpable defendant had state of mind suffi presses intent an that both convictions cient for support conviction second-de consecutively, should be stand and sentenced gree murder; required the mental state the indicia of intent we the underlying is not Id. at sufficient. contrary discuss below demonstrates the con- Ortega even went so predicate felony clusion: is sub- that, far suggest as to absent construction sumed within the conviction for mur- include this result, problematic along der. This with the intent, might subject enhanced the statute previously narrow giv- construction we have by establishing pre attack constitutional en to our informs our sumption of mens rea in violation due issues process. Id. at 1204-05. context of murder. DOUBLE JEOPARDY construing After mur requirement,

der statute to include an The Double Clause of Ortega observed the Fifth Amendment United to the States legitimately had a killing provides: any per- “determined that in Constitution shall “[N]or fact, has, author- subject for the same offense to be whether son be limb.” ized put of life or U.S. twice V; punishment see N.M. Const. art. for the same offense. Id. at

Const. amend. also II, double-jeopardy § (providing pro 810 P.2d at 1228. thus stated a “two- tection). applicable determining The clause is test for intent to Due through punish.” Process Clause of the Id. at 810 P.2d at 1233. states Mary Fourteenth Amendment. Benton The first of the test for deter- land, 23 mining legislative intent asks “whether the (1969), overruling L.Ed.2d 707 Palko Con unitary, the offenses is necticut, 149, 82 U.S. L.Ed. i.e., both same violates statutes,” cases to a most leads judicial inquiry into the facts and circum- Among things, other the Double the case to acts stances of determine whether protects a defendant from Clause sufficiently with each are associated statute being punished twice at one trial for the separated by space time and to for allow (multiple punishments). “same offense” See separate prosecution and conviction under States, 688, 684, v. 445 U.S. Whalen United Id. at 810 P.2d at 1233- statute. (1980); 1432, 63 715 L.Ed.2d part 34. The second of the test then “focus- 2003-NMSC-020, ¶9, Lynch, es on the statutes at issue to determine 139, Multiple punishment 74 P.3d 73. legislature whether the intended to create “unit-of-prosecu are prongs. two First the separately punishable offenses.” Id. If there the is “charged tion” cases where defendant intent, expression legislative no a is clear single a multiple violations of apply statutory the inter- court must rule of based a course of conduct.” Swaf pretation announced the United States State, 1223, P.2d ford Supreme Blockburger in Court v. United (1991). “double-descrip Second the States, 76 L.Ed. charged tion” where “the eases Swafford, 112 N.M. at multiple may with violations of statutes that According Blockburger, at 1234. to P.2d may deemed for not be the same offense the same act or transaction consti- “where purposes.” double ar Frazier statutory tutes a violation two distinct gues improperly that he was convicted under provisions, applied the test deter- to be offense, separate the same for mine there are two offenses or kidnap the murder statute and the one, requires proof provision is whether each statute, ping analyze and therefore we this as of a the other does not.” 284 U.S. fact which double-description case. 180. S.Ct. The Swafford Test Application of the Block- Contreras and leading is the New Mexico {14} Swafford burger Felony murder Cases Test analysis. In double-description

case on the already opinion, This Court has determined this Court addressed whether part of the outcome of the second convictions and sentence for both Swaf- Swafford’s cases penetration arising applied test as incest and criminal sexual ford Contreras, In we based on conduct: out the same conduct constituted double unitary, jeopardy. P.2d at In held that when conduct Id. at 1226. holding no cannot be convicted both there was viola- defendant felony. tion, underlying predicate synthesized many this varied murder Court in 120 N.M. at theories set forth both New Mexico up relying on the federal law to come with a reached this conclusion decisional in Supreme multiple punishment In Court’s single test for eases. United States Whalen, test, Court fashioning recognized pole- we Whalen. “the Blockburger legislature’s applied test find guiding star courts Congress not consecutive sen- did authorize punishments to authorize for offense,” felony murder and the question being tences for same central felony. punish”). 445 U.S. at 100 S.Ct. 1432. In We think this articulation is tell- that, holding, so ing. reasoned under federal defendant could Regardless part analyze, of which we killing be convicted the course of materially never test veers Swafford rape prosecution proving without the all underlying “polestar” from the rape, elements offense of discerning legis intent. Viewed tool for as “Congress rape therefore intended punish, lative intent to considered a lesser within offense included prong of proxy functions as killing rape.” offense course of intent when the is si Id. at 694 n. This words, lent. other if criminal acts are observed Contreras there was no sufficiently space, time significant difference between our have assumed that the intended to murder statute and federal mur- separate punishments authorize under differ Whalen, “[appli- der statute and therefore act, ent statutes for each distinct unless the cation of a different rationale [was] unwar- statutes indicate that the conduct should be by anything ranted unique to our statutes.” construed of a single transaction. Contreras, 120 N.M. at at 233. See, e.g., (unitary id. of Swaf Because Contreras out- controls the test pragmatic “arises from the observa ford part legisla- come of the second of Swafford’s tion that the clearly clause inquiry applied tive intent as to mur- operate prohibit cannot prosecution, con eases, present entirely der the case turns viction, punishment single and in a trial for unitary prong Spe- the conduct of Swafford. discrete acts violative of the same statute cifically, we ask our (whether actually the same or the same un expresses statute legislative a clear intent test])”); Blockburger der [the see also Vick killing

that during a the commission State, 991 (Tex.Crim.App. S.W.2d 833 unitary every constitutes conduct in 1999) (holding that double was not case, thereby precluding unitary conduct by multiple violated convictions inquiry by specific this Court the into facts of of Legisla acts sexual assault because “the the ease. ture, through language the of the has rejected aggravated grouping sexual assaults Unitary Conduct under Swafford ”). by ‘transaction’ Legislative intent is the of touchstone corollary principle The of this dictates double-description analysis. the fol- Cases when that the silent is not Swafford, lowing even itself Swafford speaks of the as of a single conduct elements application test, its of the have construed the episode, temporally separate, criminal even parts separate, test as Swafford job then our legislative is to enable intent. part inquiring into the facts of the case the When relevant statutes define the of legislative and the other into intent. included, greater fenses lesser Swafford, See 112 N.M. at 810 P.2d at jury require jury instructions (stating 1233-34 that if the conduct is found unitary conduct, finding make factual of non-unitary, end”); “inquiry be is at an regard then Contreras, the first 120 N.M. at 903 P.2d at 231 prong of the test is clear. that (stating reasonably “it that is ‘if it can it presumptuous would be unitary be said that the conduct is [that] inquiry conduct our own into one must move to the second of ” particularities inquiry’ factual of case. (quoting Swafford, 112 at See 1234)). Ohio, 161, 169-70, However, Brown v. 810 P.2d at ini- 432 U.S. Swafford’s (1977) (because speaks tial articulation L.Ed.2d Ohio test terms prongs being legisla- joyriding both statutes on theft and used to determine auto defined operation tive intent. N.M. at theft and car single P.2d at 1233 the as a (stating offense, two-part single test is used for the defendant could not be con purpose “determining legislative intent to of both crimes even though victed the con- statute jury instructions based supporting place each took different duct that, places). require jury for a to convict defendant and in different times murder, upon the conduct Unitary Fel- Under New Mexico’s Conduct underlying felony both ony murder Statute unitary. necessarily murder is based must Thus, jury guilty finds a defendant when in- Keeping mind that murder, already has determined deciding mul- primary tent concern cases, question first fact-based tiple punishment we look —it happened during the language killing at issue. See Mis- found that the of the statutes Hunter, underlying felony. 459 U.S. souri commission (stating any L.Ed.2d 535 simply principled unable to discern context, multiple punishment “the Double “uni- distinction between notion of Swafford’s prevent than Jeopardy does no more tary requirement Clause conduct” and the sentencing prescribing great- from court killing “in happen the commission of’ punishment than the intend- er “during the commission of’ ed”). surprise, To no felony. P.2d at see question legis- (“The silent on of whether the supporting lature the conduct kid- intended fragile not such a Double Clause is napping to be construed as with the guarantee prosecutors can its limi- avoid supporting murder offense. simple expedient dividing tations expect any to mur- We would not reference temporal into a crime series However, in a kidnapping units.”). der statute. spatial generally George C. felony murder statute reveals a clear answer. III, Theory Multiple A Thomas Unified Punishment, 47 U. Pitt. L.Rev. 12-25 Mexico’s murder statute New punishment (discussing degree provides in the first “[m]urder analysis unitary stating and that “the con- by being one human killing the of another leg- depends entirely duct on what the issue justification or excuse ... without lawful conviction, the unit of islature intended be attempt any the commission to commit of analysis space-time rather than on 30-2-KA) felony.” § NMSA 1978 actions”). physical defendant’s added). jury (emphasis Our instructions that, to require on this statute find a based holding is not inconsistent with Our murder, jury guilty felony of the Swafford, parts which refers to both of its must find that the defendant committed or legisla- in terms multiple punishment test of attempted underlying felony to commit the particular facts of tive intent. The Swafford and that the defendant caused death of support. itself did not also lend Swafford “during the the victim commission of’ or unitary analysis with undertake a conduct underlying attempt “the to commit” the felo- in- regard convictions of to the defendant’s added) ny. (emphasis Rule 14-202 NMRA finding penetration, cest criminal sexual and omitted). (brackets Indeed, ease, in this simply of test was that first that, jury was in order find instructed dispute was no that satisfied because there murder, felony guilty Frazier of it had to find precipitated conduct both offenses. same of that he the crime “committed However, at 1235. danger- manner under circumstances in a just as in this of Swafford, because life,” to human and that he “caused the ous of way the statutes defined offenses during the commission death [Knoll] incest, and there penetration criminal sexual added.) (Emphasis kidnapping.” unitary; way for the conduct not no criminal sex- required to commit language of both the statute conduct The under the penetration ual when committed jury instruction renders the conduct present felony familial circumstances supporting the murder under Swafford definition; charge in- always support parallel lying predicate felony unitary will Similarly, required to com- killing cest. expressly requires happen it always par- support mit murder underlying felony. of’ will “in the commission charge respect underlying great- allel with above—the defendant would receive felony. Though punishment reached its conclu- er than if he had killed unitary by finding culpable Nothing sion that the mental more state. issue, dispute legislature no on the same conclusion statute indicates that the intended necessarily by looking at the arbitrary Swafford, follows result. See § (stating themselves. See NMSA 30-9-11 N.M. at P.2d (2003) (criminal penetration); quantum punishment proba- sexual NMSA “[t]he (incest). “[wjhere intent;” thus, § legislative 30-10-3 tive statutory many provision incorporates Contreras, opinion Our but for its statute, elements of a base extracts conduct, pre- cursory also statute, greater penalty may than it the base figures Implicit our decision here. in our be inferred that the did not intend holding, that the elements of the statutes”). punishment under both subsumed elements murder, was the notion a factual course, support Of if the facts inquiry into conduct was not neces- multiple charges particular felony sary determination of in- unit-of-prosecution can be sustained under a tent. When the statute is analysis, then State is free to use one of interpreted underlying felony such that the those murder, a lesser-included offense of obtain convictions for the other follows that the intended con- charges. recent opinion Our in State v. Ber supporting duct both to be offenses consid- nal, 2006-NMSC-050, “unitary” ered jeopardy purposes. for double is illustrative. Bernal broke into Whalen, U.S. home, intending Giron’s to rob him of some that, (stating absent a clear indication ¶ drug money. Id. 2. Upon entering Giron’s contrary, intent to the two statuto- bedroom, immediately Bernal shot Giron ry provisions proscribe the “same of- gun girlfriend, then turned his on Giron’s fense” are construed not to authorize cumula- Romero, demanding money. that she find the punishments). tive ¶¶ money Id. 2-3. Romero could find the ¶ and Bernal then left the house. 3. A requirement under felo murder, jury guilty found Bernal ny uni the conduct be robbery, two counts of armed and other of tary murder, to convict a defendant of fenses. 5. The trial court dismissed is also consistent with earlier discussion attempted Bernal’s conviction for the armed of purpose felony the mur behind robbery of repre Giron because that count der. permitted When the State is to elevate felony predicate felony sented the for the what second-degree would otherwise be a conviction, murder but the court did allow murder, to first-degree murder with at the attempted the conviction for rob punishment, tendant increase in the based on bery of to Romero stand. Id. killing happened fact that during the felony, felony commission of a upheld be should This Court Bernal’s conviction first-degree subsumed attempted Romero, murder. The for robbery armed underlying felony already finding served en supporting to the conduct degree charge hance the unitary felony murder first without was not mur- with ¶ proof premeditation requiring However, de a der Giron. 11. the true praved 563, Ortega, mind. point See 112 N.M. at holding on which our in Bernal turns is “[sjecond 817 P.2d at 1205 (explaining a unit-of-prosecution analysis the outcome of degree may murder regard be first attempted robbery elevated to with ¶¶ degree murder charges. when occurs in circum See id. 12-13. We held stances that the has determined robbery convictions for counts of armed punish so serious as to merit increased jeopardy, did not despite violate added)). (emphasis ment” sepa allow a only To fact that Bernal had the intent to steal ¶ rate predicate felony conviction for the property. would one victim’s 31. We reached paradoxical create result we applying noted this determination the test artic-

127 ¶ NMSC-007, 646, State, 35, 126 N.M. 974 P.2d 140 in Herron v. by this Court ulated (convictions aggravated kidnapping 357, 361, for and 805 P.2d N.M. 2006-NMSC-050, 15, 140 non-unitary Bernal, felony murder were based N.M. jeopardy not conduct and double was violat 146 P.3d 289. Mora, 1997-NMSC-060, ¶69, ed); State v. unit-of-prosecution a case Herron was (convictions 950 P.2d 789 for when a forth test to discern set felony criminal sexual contact and murder sufficiently were distinct defendant’s acts non-unitary conduct and dou were based on permit multiple punishments under the same Contreras, violated); ble was not applying A Herron test statute. court (con P.2d at 232-33 N.M. following “indicia of distinct evaluates felony robbery mur victions armed acts; (2) (1) proximity of the temporal ness”: unitary conduct and der were based act; (3) during victim location of the vacated); robbery armed conviction was event; intervening se existence an Kersey, 120 State v. N.M. P.2d acts; quencing of the defendant’s (1995) (convictions utterances; by his conduct as evidenced felony murder non-uni were based on (6) the of victims. 111 N.M. at number tary conduct and thus double applied P.2d the Herron convictions); by separate Ortega, not violated in Bernal to find that Bernal’s acts criteria (same). 817 P.2d at 1213 N.M. at justify sufficiently multiple distinct to However, cases none these addresses punishments under the same statute. Ber specific before us here: whether the issue ¶¶ 2006-NMSC-050, nal, 20-21, 140 N.M. felony expresses legis clear murder statute Thus, attempted by requiring jury lative intent make robbery did serve as armed of Romero not finding conduct before convict felony for the murder of predicate ing a defendant murder. Giron, and could be convicted of both Bernal attempted armed previous applied Our cases uni Romero, attempted robbery of but not the tary prong test to robbery of Giron. armed situations and were asked particular inquire into whether the lan Bernal demonstrates that the State might guage of the murder statute first-de- intent on the issue of indicative gree felonies under and mul- Some of cases ana conduct. those tiple under that statute can be convictions lyzed defining the predicate the statutes felo unit-of-prosecution sustained based on a ny, asking whether the defined in analysis, only then one such conviction needs way jury finding supported that it áuch for a serve Foster, See, non-unitary e.g., conduct. 1999- and the other convictions murder conviction ¶¶ NMSC-007, 29-40, 126 However, may where stand. there Kersey, 120 N.M. at first-degree felony conviction which also felony felony predicate as serves the conviction, legisla- we the hold that Foster, In we looked to the statute {33} a separate not intend to allow con- ture did jury robbery to and instructions on armed felony. viction for that same provided jury the they determine whether conviction, with alternative bases for some Jeopardy Issue in Clarification of Double unitary sup- some supporting conduct and Felony murder Precedent non-unitary porting conduct. 1997-NMSC- ¶¶ holding 931 P.2d 1382. recognize repre- that our on the departure from that we held that based sents a certain cases included and the instructions on armed rob- jurisprudence with in statute facts, jury bery applied to the could conduct is the which we have examined whether that finding in based its conviction on conduct was factually unitary, some cases that have ¶¶ unitary non-unitary. Id. 36-40. to either allowing it not both convictions and See, Foster, jury had based its reasoned that the e.g., stand. State 1999- We conduct, finding unitary on Contreras would ments unless there is “a clear indication intent”). robbery apply contrary legislative clarify and of armed the elements We now precedent within according would be subsumed the elements of our the to murder, violating jeopar- expressed in thus the murder stat- ifdy the were convicted of both. ute. ¶¶

Id. 39-40. Because the verdict did not FINGERPRINT EVIDENCE jury which alternative the on indicate relied trial, girlfriend At tes Frazier’s and if have the alternatives would tified to what Frazier had told her: that he jeopardy, violated double we held that the Knoll, had borrowed truck from that he robbery of armed defendant’s conviction still had time left on it Knoll when returned not could stand. Knoll, pick up, to he had beaten and However, analyzed we also the kid- police looking that he knew the were for him. napping statute Foster to find that the A detective the criminalistics unit of the supporting the defendant’s convic- (“APD”) Department Albuquerque Police aggravated kidnapping tion of could not have fingerprints testified that latent lifted based conduct that been on was with off the door frames the truck. Another murder, thus, aggravated and detective, Herrera, APD Detective testified kidnapping conviction did not violate double she prints matched five of latent these ¶¶ jeopardy. 29-35. We conducted a “ten-print” fingerprint to a card of Frazier’s kidnapping similar review statute kept ordinary that was APD in the course Kersey, reaching the same factual conclusion of business. regard as that reached in with Foster finger- Frazier now asserts that the kidnapping Kersey, conviction. See 120 N.M. print ten-print evidence card were (analyzing P.2d at “hold to hearsay. inadmissible The overall thrust requirement kidnapping service” argument Frazier’s appears to Detec- holding that double not was tive Herrera should not have been to allowed required violated because conduct to estab- identify prints ten-print finger- completed lish be- hours print card as Frazier’s because that not could required fore the conduct to establish fall within the exception business records to murder). 11-803(F) hearsay rule. See Rule Kersey Foster and were correct in prop- NMRA. Frazier claims that his counsel analyses predicate felony objected their erly to the evidence but that respect to intent on the objection. issue trial court overruled the However, points upon conduct. those cases out relying that Frazier is here, question not objections did ask the we ask made his co-defendant’s coun- object shifts the focus from the sel that Frazier’s counsel did fact, statutes to the murder statute itself. admission of evidence. requires killing happen That statute after Detective Herrera testified that she accompa- compared prints commission the latent a ten-print nying jury require jury date, instructions bearing card Frazier’s name and birth happened killing during ten-print find kept that the card was in the nor- predicate felony. business, commission There- mal course of and that she relied fore, question now professional ask is whether the such judg- records make instructed, ments, jury, when affirmatively so could have found Frazier’s counsel stated killing objection from the under- that there was no to the admission lying felony. jury ten-print We do not believe the reply, of Frazier’s card. In his language could so find and argues rely of the statute Frazier that he should be able to objections not does indicate that intend- on the made his co-defendant’s Whalen, objected ed otherwise. See previously 445 U.S. 691- counsel since he had to a (when 92, 100 joint 1432 S.Ct. statute is sub- trial but was denied a severance. Fra- other, presume sumed within the then zier cites the record where he claims multiple punish- objected, not intend although did to have all citations

129 MINZNER, PAMELA B. objections made his co-defendant’s WE CONCUR: are to SERNA, M. PETRA PATRICIO JIMENEZ counsel. Justices, MAES, L. EDWARD admis “Acquiescence CHÁVEZ, (specially {38} Chief Justice waiver of the of evidence constitutes concurring). sion Campos, v. 1996— appeal.” on State issue CHÁVEZ, (specially Chief Justice ¶ 148, NMSC-043, 47, 122 921 P.2d N.M. concurring). preserve any objection Frazier did not fully per- I concur in the discussion fingerprint evidence to the admission of the fingerprint I taining to the evidence. also object join in his co-defen he did not vacating concur in Frazier’s conviction of kid- objections. Pettigrew, 116 See State v. dant’s jeopardy. I napping grounds of double 135, 143, 777, (Ct.App. N.M. 860 P.2d however, because, separately, while I write 1993) (concluding the defendant “was step right this case is a in the di- believe handling with the trial court’s satisfied rection, required I am convinced that more is object join in when he did not his matter” double-jeopardy jurisprudence bring Pacheco, objections); State v. co-defendants’ line with United States Constitution. 599, 604, 200, (Ct.App. 110 N.M. issue, I taking After a fresh look at the am 1990) (rejecting the defendant’s failure to persuaded “unitary-conduct” analy- that our claim where the defendant did not sever sis is in conflict with United States but, instead, object relied on his co-defen and, thus, beginning precedent with Moreover, objection). did dant’s State, 3, v. 810 P.2d 1223 acquiesce in the admission of the Frazier (1991), separately must be modified. write evidence, affirmatively Frazier’s counsel stat explain why and I believe our double- how objection that there was no to the admis ed jurisprudence must be modified. ten-print of Frazier’s card. Even sion Jeopardy The Double Clause of objection point Frazier did at some raise an Fifth States Con Amendment United testified, party “[a] Detective Herrera before any person provides: stitution shall “[N]or objection pre rely cannot on a withdrawn subject offense to be twice for the same Duncan, 117 error.” State v. serve put of life or limb.” U.S. Const. (Ct.App.1994), II, V; § also N.M. Const. art. amend. see abrogated grounds by on other State (providing double-jeopardy protection). Brule, 1999-NMSC-026, ¶¶3-6, 127 N.M. through applicable The clause is to the states 368, 981 P.2d 782. of the Fourteenth the Due Process Clause Finally, argues that he should Frazier Maryland, Benton v. Amendment. objections rely co-defendant’s be able to 23 L.Ed.2d join “elected to the two because the State Connecticut, (1969), overruling Palko v. and because his motion to sever defendants” L.Ed. 288 U.S. argument This has no merit. was denied. has two main The Double Clause authority, points Frazier to no and we see no First, protects it a defendant components. by adopting policy advanced his beneficial being retried for the “same offense” from Therefore, any objection to the admis- logic. (subse acquittal or conviction either after was not sibility fingerprint evidence Second, protects a quent prosecutions). preserved and we will not consider properly being punished at one defendant from twice appeal. it on (multiple punish the “same offense” trial for ments). States, 445 Whalen v. United CONCLUSION 1432, L.Ed.2d 715 U.S. kidnapping con- vacate Frazier’s We 2003-NMSC-020, 9, (1980); Lynch, jeopardy. Fra- viction as violative case con 74 P.3d 73. This remaining are affirmed. zier’s convictions component, multiple punishment cerns the court for further remand to the district are the prongs. First which itself has opinion. proceedings consistent with this where the defen “unit-of-prosecution” cases “charged multiple violations dant is IT IS SO ORDERED. 130 8,

single Swafford, Clause, Jeopardy statute.” 112 N.M. at 810 Double [a court] looks to 1228. Second are the “double-de- same, whether the are the not the offenses scription” cases where “the defendant interests that the offenses violate.” United charged multiple with violations of Dixon, 688, 699, States v. 509 U.S. 113 S.Ct. may may not be deemed the same 2849, (1993), overruling L.Ed.2d 556 jeopardy purposes.” offense for double Corbin, Grady 508, 495 U.S. 110 S.Ct. argues Since Frazier that double 2084, (1990). making L.Ed.2d 548 In was violated when he was sentenced accord- determination, Supreme Court has ing statutes of consistently used by the test formulated underlying felony on which the felo- States, Blockburger 299, v. United 284 U.S. ny predicated, murder was this is a double- See, e.g., 76 L.Ed. 306 description case. Brown, 432 U.S. at (stating S.Ct. 2221 determining “[t]he established test for Supreme A. United States Court Prece- sufficiently two offenses are distin- dent guishable permit imposition of cumula- Because the issue is one of a defen ”). punishment tive Blockburger was stated in rights, dant’s federal constitutional I would fact, Blockburger test, In otherwise begin analysis by looking precedent test, known as the “same-elements” see Dix- from the Supreme United States Court since on, 509 U.S. at 113 S.Ct. is the Supremacy Clause of the United States only test used to determine whether requires Constitution us to do so. See U.S. purposes offenses are the same for VI, II, § Const. art cl. N.M. Const. art. 1. jeopardy. See id. at 113 S.Ct. 2849 dealing When with a multiple-punishment is (overruling Grady’s “same-conduct” test and sue, Court has made it clear noting Blockburger that the test deep “has Jeopardy Double Clause “is limited historical roots and has been accepted in assuring that the court does not exceed its precedents numerous Supreme] [the by imposing authorization Court”); Hatchett, see also United States v. punishments for the same offense.” Brown (7th Cir.2001) (“Dixon 245 F.3d re- Ohio, 161, 165, 432 U.S. 97 S.Ct. established the ‘same-elements’ test articu- (1977); L.Ed.2d 187 see also Missouri v. by Blockburger lated only as the one and test Hunter, 103 S.Ct. apply____”). that courts are to (1983) (“With L.Ed.2d respect to cumula trial, tive imposed sentences in a According Blockburger, “where the Double Clause does no more than same act or transaction constitutes a viola prevent sentencing prescrib court from tion of two statutory provisions, distinct ing greater punishment than the applied test to be to determine whether there intended.”). Thus, under one, are two offenses or is whether each precedent, step analysis the first in a court’s provision requires proof of a fact which the is to determine whether two at a convictions other does not.” 284 U.S. at single trial were for the “same offense.” If Thus, 180. prongs there are two to Block so, step the second is to determine whether burger. Blockburger, Under a court must multiple punishments for those same offenses charged determine: whether each offense Legislature.1 authorized “requires proof of a fact which the other does not”; and charged whether each offense Determining Whether the Two Convic- of the “same act or transaction.” tions Were for the Same Offense determining charged whether two Brown is instructive on both of these offenses are purposes the same “for points.2 the defendant stole a car cases, (and statutes, may 1. In some regardless a court also start end pro- of whether the statutes with) offense,” pun- scribe the may determination of "same dual convictions end). Hunter, be had and is at an ish. See 459 U.S. at (concluding specifi- that when a Although Brown ais case that dealt with cally authorizes for two whether double was violated succes- offense, the less- later, included Cleveland, greater and lesser days Nine Ohio. in East beyond that requires proof ... no offense car in er caught driving the was great- conviction of the required for Wickliffe, Wickliffe, the defendant Ohio. by is therefore greater offense er.... joyriding— offense of charged with the purposes the ‘same’ definition the own- operating the car without “taking or included in it.” any lesser offense jeopardy as 2221. 97 S.Ct. 432 U.S. at er’s consent.” 2221. at 97 S.Ct. Id. charge, paid pled guilty to the The defendant fine, days jail. spent thirty a $100 act or transac- Regarding the “same jail, from being released About a month after however, the Su- Blockburger, prong tion” of charged in East Cleveland the defendant the Ohio court. disagreed with preme Court 162-63, 2221. 97 S.Ct. with auto theft. days separating Notwithstanding the nine could not Contingent argument his that he charges, the underlying the two the conduct grounds theft on of prosecuted for auto that the two offenses Supreme held pled guilty. the defendant jeopardy, double “same act or transaction.” part of the appeal, the 97 S.Ct. 2221. On Id. at 169-70, It did so be- S.Ct. 2221. Id. at joyriding that Appeals held Ohio Court statutes, as writ- applicable Ohio “[t]he cause of auto theft was a lesser-included offense ease, th[e] ma[de] and as construed ten prove needed to because the element single single a car a operation theft joyriding was prove not needed to auto theft 97 S.Ct. Critical- offense.” Id. at deprive the owner permanently an intent to “The Double ly, Supreme Court stated: 163-64, Id. at 97 S.Ct. of the automobile. fragile guaran- not such a Jeopardy Clause is Nonetheless, the defendant’s convic- can avoid its limitations prosecutors that tee upheld appeal be- auto theft was tion of dividing single by simple expedient of that the conduct cause the court determined spatial temporal or into a series crime underlying each conviction was added); also id. at (emphasis see units." According to act or transaction.” the “same (noting it “would that 169 n. court: Ohio Leg- if the Ohio a different case [been] have prosecutions based on [were] The two joyriding provided [was] islature had appellant, one which separate acts of the day in which separate offense for each 29th and one which occurred on November the owner’s operated without motor vehicle is appel- on December 8th. Since occurred consent”). in another afterwards Soon prosecu- both lant not shown that ha[d] fur- Brown and quoted same act or based on the [were] tions principle. ther clarified transaction, prosecution [was] the second is not such a Jeopardy Clause “The Double clause. by the double not barred limitations ... its fragile guarantee (quotation expedient marks simple avoided] Id. at [can be omitted). single crime into a series dividing a or, units,” we hold spatial temporal or prong of Blockbur- Applying the first liability" not today, bases into “discrete agreed in Brown ger, Supreme Court legislature. as such defined Appeals and held with the Ohio Court 54, 72, 98 437 U.S. of- v. United States greater offense and a lesser-included Sanabria (alteration 2170, L.Ed.2d 43 purposes of generally the same for fense are omitted). added) (citation (emphasis invariably original) true of jeopardy: “As single ... has term “same offence” prosecutions whether double sive —not meanings.... by multiple punishments is clear two different was violated —it omitted). (citation at 704 113 S.Ct. 2849 whether two 509 U.S. the determination of 97 S.Ct. 2221 both con- 432 U.S. offense” is identical in See also are the "same Dixon, ("If purposes of ... for Court stated: two offenses are the same texts. trial, barring at a consecutive sentences noted that the Clause serves We have often purposes necessarily they will be the same for punish- preventing both successive function of Moreover, prosecutions.”). barring successive prosecution, but there is and successive ment multiple-punishment Blockburger itself was authority proposition that it has no Blockburger, case. See meanings the two contexts. That different embarrassing S.Ct. 180. perhaps to assert because it is presumed permissible in ments are unless con Under the less- {50} Hunter, trary is the “same intent. er-included offense offense” as U.S. Albernaz, greater long so as at see offense both occurred 103 S.Ct. 450 U.S. Likewise, at part as act or transaction.” 101 S.Ct. 1137. when the the “same Blockburger Importantly, charges and Sanabria mandate test reveals are Brown determining charges purposes jeopar that in whether two not the same for of double are transaction,” dy, construing part lenity ambiguous of the or the rule of “same act courts at solely governing purpose. are to look what statutes serves no This is because simply presumed it is provide temporal was at —not spatial tempting between the evils with distance events or eradicate Albernaz, underlying charges.3 different at statutes. See U.S.

342-43, 101 S.Ct. 1137. Legislative Determining Intent to Pun- are Most instructive Whalen and {54} ish Whalen, Hunter. the defendant was con- charges if Even two the “same rape predicated victed of {51} Clause, offense” under the Double ease, rape. Similar the instant protected against multiple defendant is not imposition argued multiple punishments charges legisla if the for those punishments violated the United States Con- specifically punish ture has authorized such stitution. at 445 U.S. 100 S.Ct. determining legislative ment. Supreme 1432. The first determined context, Blockburger this test —the same rape was a lesser-included offense of determining test used for whether two of “rape [was] because neces- starting point. fenses are the “same” —is the sary proof element of murder.” Albernaz, at n. Next, See Id. at the Su- 1137, 67 L.Ed.2d 275 outcome of preme rape Court reversed defendant’s Blockburger provides presumptive was, test Congress best, conviction because through any statutory lens to view ambiguous as to whether it intended multi- language. ple punishments for murder and its predicates. See id. at 100 S.Ct. 1432. precedent Supreme Court makes charges clear that if two one of the is deter case, In contrast Hunter. In that mined to be a offense of lesser-included complained multiple the defendant of his con part other both were of the “same act victions of armed criminal action and the transaction,” multiple punishments are un robbery lesser-included offense the first constitutional unless Hunter, 361-62, 103 degree. See U.S. Whalen, clearly provided them. proscribing S.Ct. 673. The statute armed (“[W]here U.S. at action, however, provided criminal any statutory proscribe provisions the ‘same of punishment crime for that was to “be in fense,’ they are construed not to authorize any punishment provided by addition to law punishments in cumulative the absence of a [lesser-included for the Id. at offense].” contrary legislative clear indication in Supreme upheld S.Ct. 673. The tent.”). If the are the same for offenses legislature’s both convictions in because purposes legisla and the providing multiple punishments tent regarding 368, 103 tive intent “crystal is was clear.” S.Ct. 673. situations, ambiguous in such the rule of lenity 10, 100 Application is to be See id. at 695 n. B. used. of United States S.Ct. 1432. Court Precedent hand, charges Applying prece- On the other when two Court’s offense,” case, multiple punish- are not the “same dent to the an inquiry instant believe charged 3. Of are the course if the defendant "same offense” whether the defen- charge the same violations of a unit-of- dant's conduct case, prosecution only question then to be “same act or transaction” as defined determining legislature. answered in whether two inquiry first be made into whether Frazier’s The next is whether the kid- must napping subsequent killing of Knoll charge is the “same offense” as of the “same act or transaction.” charge requires murder. This his inquiry depends The answer to this answering questions: of two whether statutes, applicable whether “[t]he as kidnapping is a lesser-ineluded offense of written and construed make case; so, felony murder in this and if [kidnapping of- murder] kidnapping charge and the felo- Brown, fense.” See 432 U.S. at ny-murder charge from act stem the “same My reading Supreme of United States or transaction?” If the answer to either of precedent that Court is we must look “no,” questions is the of kid- these statutes; simple the we must not use “the napping felony not the same expedient dividing crime into a series [the] pre- purposes temporal spatial or units.” See id. I sumption Legislature is that the intended that, recognize felony when it comes to mur- multiple punishments. Conversely, if the an- der, majority agree. Maj. Op. I questions “yes,” to both is then the two swer ¶ (“[W]e felony-murder ask whether our charges are the “same offense” and an addi- expresses statute a clear inquiry Legislature tional into whether the killing during that a the commission of a required. intended is every constitutes case, thereby precluding a kidnapping charge Frazier’s is a less inquiry by specific this Court into the facts of felony-murder er-included offense of his case.”). applaud I departure this from Whalen, charge. government argued In eases, previous mostly which have con- rape that was not a lesser-ineluded offense of spatial temporal analysis ducted a felony-murder charge the defendant’s be See, underlying e.g., defendant’s conduct. felony-murder “pro cause ¶¶ Mora, 1997-NMSC-060, 68-71, State v. killing person scribefd] of another 124 N.M. State v. Liver- committing rape robbery course or or ¶¶ nois, 1997-NMSC-019, 123 N.M. arson, kidnaping or etc.” 445 U.S. I 934 P.2d 1057. Where differ with the rejected 100 S.Ct. 1432. The however, majority, is its conclusion that a argument, stating: this “A conviction for kill unitary-conduct analysis based on Swafford ing rape had the course of cannot be proxy is to used as a when the statutes do be proving without all the the of elements of clearly provide they that are to be con- 693-94, 100 rape.” Id. at fense of part strued as of the same transaction. See that, recognized in Contreras ¶ below, Maj. Op. 19. As I discuss further Whalen, is no doubt that after there always believe that we must consider the felony-murder predicate charge at hand and the intent behind them a lesser-ineluded offense of murder. determining Legislature when (1995), charged offenses to be intended overruling Stephens, State v. Doing the “same act or transaction.” other- (1979). the instant resorting “simple expe- wise would be Bosson, case, pointed by out Justice that in Brown dient” against. order to be convicted warned jury that had to find Frazier “caused Brown, I that Fra- Applying conclude Kelly during the commission death Knoll kidnapping charge zier’s stems from the Maj. Op. kidnapping.” 22. Similar to felony-mur- “same act or transaction” as his Whalen, Frazier could not have been convict provided charge. Legislature der Our felony murder without all of the ele ed of murder, guilty that to be the mur- having kidnapping ments of first been “in the commission of or der must occur proved. NMSA1978, Since is subsumed any felony.” attempt to commit 30-2-l(A)(2) (1994). felony-murder charge in this Frazi fashioning § crime, kidnapping charge plain language is a lesser-ineluded er’s it is clear from the felony-murder charge. Legislature temporally did not intend to offense of his first-degree felony. § 30-4-1 spatially or divide the from is, killing. requires That first-degree felony the statute The basic sentence for a killing “in the commission of’ the years occur eighteen imprisonment. 31-18-15(A)(2) (2005). felony. Legislature fashioned the § Since Nowhere in the murder statute such the murder statutory provisions defining these crimes during must occur the commission of the providing punishment for their does the predicate felony, predicate felony Legislature specifically authorize mur- of the “same act or transaction” as the to, punishments. Legis- Had it wanted der. spoken clearly lature could have on this Hunter, point. See 459 U.S. at Similar to a different case (discussing provided S.Ct. 673 a statute that presented Legislature pro- would had the punishment for the of armed criminal action vided murder was any punishment pro- to “be addition to offense from its when there awas [lesser-included vided law for the of- temporal spatial gap comple- between the fense]”); State, 1996-NMSC-054, Jackson v. underlying felony tion of the and the subse- ¶2 (dis- n. 925 P.2d 1195 not, quent murder. it Because did and be- cussing legislation providing multiple for cause we are bound to follow punishments un- murder and the precedent, I kidnap- conclude that Knolls’s derlying felony, but that never reached the ping and murder occurred as of the floor). Legislature’s senate Given the si- Thus, “same act or transaction.” because applying lence on this matter rule prongs the answer to both of the “same lenity, I Legislature conclude that “yes,” question offense” I conclude that clearly multiple punish- has not authorized kidnapping felony-murder Frazier’s ments for murder and its charges are the “same offense” within the not, felony. Because Frazier’s dual meaning of the Double Clause of kidnapping conviction of both the Fifth Amendment. predicated kidnapping murder on runs afoul Having kidnapping concluded {61} Fifth Amendment to the U.S. Consti- murder in this case are the “same Accordingly, agree I tution. that we must offense,” I believe the next course of action is kidnapping. vacate Frazier’s conviction of multiple punishments to determine whether legislatively kidnap authorized. Since Unitary Depends upon the C. Conduct ping is a lesser-included offense of Harm Proscribed the Statute predicated kidnapping, there is Issue presumption Legislature that our did not agree entirely majority’s I Whalen, with the multiple punishments. intend See recognition jeopardy precludes that double 691-92, 445 U.S. at 1432. In S.Ct. look being defendant from convicted of both felo- ing statutory language, at the Frazier should ny predicate. Maj. Op. murder and its not receive unless ¶¶ Jackson, Interestingly, 23. a habe- contrary legis there is “a clear indication Contreras, as ease decided soon after we Any ambiguity lative intent.” should be implicitly understood Contreras to hold ex- construed in favor of Frazier. See id. actly majority what the now. 10, 100 does See 1996— n. NMSC-054, 925 P.2d 1195. It legislation at issue is silent on appears that Jackson has never been cited Legislature multiple intended proposition. Despite my for this admiration law, punishments. Under New Mexico felo- majority opinion, necessary I find it ny degree murder is the first —a why Swafford, discuss believe or at least 30-2-l(A). capital felony. § NMSA case, interpretation our of that is inconsistent guilty capital felony A defendant “shall prece- with United States punished by imprisonment life or death.” dent. 31-18-14(A) (1993). § Whoever com- voluntarily mits who does not The determination under Swafford place guilty free the victim a safe of a whether a defendant’s conduct charge are subsumed within elements of one unitary has served as sub charge is that con the other. analysis of whether for an stitution act or transaction” part of the “same duct is double-description Swafford, a Brown, to Brown. See

pursuant unitary-conduct question to mean read the is, implicitly That we “if commits two discrete the defendant con that whether defendant’s determined offense, statutory same acts violative of the the “same underlying two duct indicia of distinct- separated but sufficient depends whether that transaction” act or ness, may impose separate, con- then a court being “unitary.” things All conduct is same each offense.” 112 punishments for secutive question of se equal, this would be a mere (emphasis at 1233 add- N.M. at However, framework we mantics. ed). recognizing Besides not unitary-conduct on the erected Swafford that the Court error made in analytical scope too question focused our unit-of-prosecution issue with conflated the narrowly. is, double-description That assum- issue. jeopardy is not violat- ing it true that double Swafford, partly upon relied punished ed if a defendant is two-part law review article to fashion statutory offense” violations of the “same P.2d at Swafford, 112 N.M. at test. statute) (i.e., long the exact same so III, A (citing George C. Thomas Uni- “separated by actions are suffi- defendant’s Punishment, 47 Theory Multiple U. fied distinctness,” this does cient indicia (1985)). 1, 12-25 Professor Pitt. L.Rev. is no double viola- mean that there argued question of whether Thomas punished a defendant is twice for tion when multi- jeopardy is under the violated greater- and offense under lesser-included ple punishment prong hinges on three com- words, circumstances.4 In other the same (1) unitary; ponents: whether the conduct is incorrectly assumed that one of Swafford (2) proscribe statutes the same whether the charges is a lesser-included offense of the (3) conduct; legislature au- whether other, thing saying that this is the same as Thomas, multiple punishments. thorized By they statutory offense.” are the “same Thomas further supra, at 5-8. Professor so, temporally doing the court was able to however, acknowledged, same of- “[t]he actions spatially divide the defendant’s contains the first two fense definitional issue (observing in units. See also id. into discrete (1) underly- whether the ‘component issues’: double-description case that “the double (2) unitary, and whether the ing conduct was clearly operate cannot jeopardy clause statutory are the same.” Id. at definitions conviction, punish- prosecution, prohibit tracks 11. This observation viola- single in a trial for discrete acts ment is, precedent. That Professor Thomas sim- ” added)). (emphasis tive of the same statute already dis- ply reiterated what have however, article, Professor In his whether two of- cussed—that to determine that, in accordance with recognized Thomas purposes fenses are the same (1) un- whether a defendant’s conduct wheth- jeopardy, courts must determine: unitary another derlying charge each underlying part the conduct each er (i.e., wholly legis- dependent on the conduct transaction” whether the “same act or proscribe: intended to unitary); and whether the lature the conduct is choice.”); C.I.T. Credit Importantly, though, according United States v. Universal Corp., 97 L.Ed. precedent the conduct (1952) (holding the defendant could charged if the same offense —even charged violations of once for unit-of-prosecution case —is and thus a provision Act depends upon of the Fair Labor Standards act or transaction” the "same punish Congress only "a pro- intended Legislature intended to because what conduct also, conduct”); e.g., State v. Hutch- upon temporal spatial course of see simply scribe —not inson, 616, 624, 661 P.2d 99 N.M. separation the defendant's discrete ac- between Sanabria, (describing kidnapping as a continuous 437 U.S. at tions. See (“Whether stating deeds that “[a]cts particular offense and course of conduct kidnapping become a emanate from the 'offenses’ under involves one or more distinctive continues”). long congressional as the depends the act unitary question always depends solely upon [T]he what course of physical whether the actions of the accused Legislature proscribed our sim- —not they clearly ply upon physical objec- the discrete acts discrete — is, instead, Brown —but whether the ac- Thomas, supra, tives of the defendant. See tions constitute course of conduct (“The unitary at 23-25 conduct determination prohibited by the statute. If the defen- by comparing is made the defendant’s con- separate physical dant’s acts are commit- duct to the basic unit of conviction defined scope legislatively ted within the of that question the statute or and tem- conduct, defined course of the conduct is pering lenity.” the result with the rule of purposes jeopar- of the double (footnote omitted)). dy clause. agree While I referred Swafford (footnote Thomas, omitted); supra, at 18 see discussing both the (stating id. at n. also that whether “same punish ques offense” and intent unitary “ultimately depend[s] conduct is on tions, ¶24, Maj. Op. long see line of determining precise proscribed harm subsequent precedent undoubtedly con analyzing the statutes at than issue rather strued to mean that we do not Swafford actions”); physical the defendant’s id. at 20 consider intent at all unless we (“[T]he unitary depends conduct issue entire- first determine that a defendant’s conduct ly on what the intended to be the space. in time and In the felo conviction, space- unit of rather than on a ny-murder alone, contesct we have done inso physical time of the defendant’s ac- eight published opinions. at least See State (footnote omitted)). Thus, by tions.” mis- ¶ Bernal, 2006-NMSC-050, 140 N.M. reading Professor Thomas’s law review and 289; DeGraff, 146 P.3d State v. 2006- inadvertently conflating double-descrip- ¶ NMSC-011, 31, 61; issues, unit-of-prosecution tion and Barrera, 2001-NMSC-014, 36, State v. unitary-conduct question read the too nar- 1177; Foster, State v. rowly. 1999-NMSC-007, ¶35, I also note that because we mistaken- Mora, 1997-NMSC-060, State v. ly believed a whether defen- Swafford ¶ 71, 789; 124 N.M. 950 P.2d charged unitary largely dant’s conduct is is Livemois, 1997-NMSC-019, ¶22, 123 N.M. contingent upon spatial temporal a anal- Kersey, 934 P.2d State v. ysis conduct, of the defendant’s we stated 517, 523, (1995); 903 P.2d Supreme United States Court “as- 554, 571, Ortega, State v. rape sumed” that the and murder in Whalen 1196, 1213 part of a episode. criminal This is I how would summarize a Swafford, 112 N.M. at bring modification of our double- fact, Supreme Court did not make this jeopardy jurisprudence in line with United Rather, assumption. simply recognized Supreme precedent. States Court gen- underlying the conduct predicate multiple punishments eral rule is that for the felony-murder charge is necessar- “same offense” violate the Double ily unitary with the murder. is This because Legislature Clause unless our clearly felony-murder nature, by very a its authorized otherwise. To ascertain whether requires that during the murder occur charges offense,” are the “same predicate This, court felony. commission of the if, turn, pursuant must first necessarily determine to the means that the two events Blockburger test, same-elements part charge are of the “same act or transaction” is felony-murder since subsumed the elements of If proscribes statute the other. so, the court necessarily course of conduct that must then determine if includes underlying predicate felony. underlying charge part the conduct conduct each is Thus, transaction,” is, it comports Supreme because “same act or if the precedent, adopt course, unitary. would the view that conduct is Of the two (a charges statutorily determination of whether a defendant’s the same unit-of- case) underlying charge each prosecution only one need answer the question unitary-conduct pened prosecutor may determine in this still charges are the “same offense.” charge whether a defendant with murder and felonies, the defendant’s conduct is Whether several other one of which is depends entirely Legis- on what conduct the murder. such proscribe simple lature intended to scenario, the defendant could still be con —not temporal analysis spatial division victed of murder and all of the non- type between the defendant’s actions or the predicate felonies—with on all sentences charge of force used to commit each act. If a non-predicate running some of those felonies is a lesser-included offense of the other and if consecutively to his or her life sentence for underlying defendant’s See, first-degree e.g., murder. Meeks v. charge of the “same act or transac- (Miss.1992) State, (“It may So.2d tion,” then the two offenses are the “same prosecution well be that could have offense” and a court must then determine practical achieved the end it here defends Legislature clearly our authorized through means. other Had it selected bur for that “same of- glary underlying felony as the incident to the lenity, statutory fense.” Under rule capital charge kidnap and left the ambiguity question silence and on this ping wholly likely charge, aside from that in favor of If construed the defendant. our separate prosecution and double conviction Legislature clearly did not authorize (citation omitted)). would stand.” punishments, then the lesser of the defen- unconstitutionally Frazier was twice dant’s convictions must be reversed. punished for the “same offense” when he was Although in the final I am kidnapping convicted of both mur- suggesting a further from ex deviation predicated kidnapping. der The elements isting precedent majority than the contem kidnapping were subsumed within the ele- plates, “we are bound the United States predicated ments of on kid- interpretation Court’s of the United napping. felony-murder Because Constitution, States and we must endeavor to proscribes killings during that occur unduly encroaching refrain from on the func any felony, and course of because Frazier’s tions of the branch of this State.” felony-murder charge contingent upon Regents Cockrell v. Bd. N.M. State kidnapping, underlying Frazier’s conduct Univ., 2002-NMSC-009, 27, kidnapping and murder of Knolls was 45 P.3d 876. See also State ex rel. Serna is, unitary. That the conduct Hodges, 89 N.M. both of the “same act or (1976) (recognizing prec Thus, transaction.” Frazier’s interpreting edent the U.S. Constitution is felony-murder charges were the “same us”), “binding upon overruled in offense.” Double was violated Rondeau, grounds by other v. State his dual convictions of these since 408, 412, (1976); see also Legislature clearly has not authorized Martinez, 2002-NMSC-008, such situations. Ac- (Serna, C.J., 43 P.3d 1042 dis cordingly, I con- would also vacate Frazier’s (“This senting) reinterpret Court cannot However, kidnapping. viction of I because contrary federal constitution go actually modify would further and Swaf- Dixon, precedent.”); cf. bring conformity it into with the ford (“Although 113 S.Ct. 2849 stare decisis precedent on United States Court’s ‘preferred is the course’ constitutional ad jeopardy, specially concur with Jus- judication, governing Vhen decisions are un opinion. well-written tice Bosson’s reasoned, badly workable or are this Court prece never felt constrained to follow Tennessee, (quoting Payne dent.’” 115 L.Ed.2d

U.S. (1991))). Furthermore, important to it is

point prosecutors typically out that will instance, hap

have their hands tied. For

Case Details

Case Name: State v. Frazier

Court Name: New Mexico Supreme Court

Date Published: May 11, 2007

Citation: 164 P.3d 1

Docket Number: 29,138

Court Abbreviation: N.M.