After an evening of heavy drinking, Alicia Gonzales (Defendant) got into her car and began to drive to the Albuquerque International Sunport to pick up her husband. On 1-25 near the Avenida Cesar Chavez exit, Defendant, drunk and driving recklessly, sideswiped one vehicle and plowed into the back of another in which two children, Manuel Delfino and Deandre Fortune, were riding. While the adults in the front seats were uninjured, the children were not so fortunate.
Defendant was later indicted on multiple charges stemming from the crash. She was charged with one count of intentional child abuse resulting in death (or negligent in the alternative), see NMSA 1978, § 30-6-l(F & H) (2005) (amended 2009), one count of intentional child abuse not resulting in death or great bodily harm (or negligent in the alternative), see NMSA 1978, § 30-6-l(E) (2005) (amended 2009), one count of aggravated DWI, see NMSA 1978, § 66-8-102 (2005) (amended 2010), and one count of leaving the scene of an accident, see NMSA 1978, §§ 66-7-202 (1978), -203 (1989). Curiously, the State did not charge Defendant with vehicular homicide. S'eeNMSA 1978, § 66-8-101 (2004).
At trial, Defendant was convicted of negligent child abuse, but that charge was later reversed by the Court of Appeals for lack of substantial evidence. She was also convicted of DWI and leaving the scene of an accident which are not relevant to this appeal. The State, barred by double jeopardy from retrying Defendant for child abuse, then sought to prosecute Defendant for vehicular homicide, a charge the State could have brought initially but chose not to. Once again, the Court of Appeals ruled against the State based on principles of double jeopardy. On certiorari, we review only that portion of the Court of Appeals opinion denying the State a new trial for vehicular homicide. We affirm the Court of Appeals but on somewhat different grounds.
BACKGROUND
Trial Court Proceedings
Child abuse is defined by statute to include: “knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be: (1) placed in a situation that may endanger the child’s life or health . . . .” Section 30-6-l(D). Before trial, Defendant moved to dismiss the child abuse charges, arguing that to be charged with child abuse, she must have been aware that her actions endangered a known, particular child. For example, if the children had been passengers in her own vehicle, then her conduct would have fit the statutory profile of child abuse. State v. Castañeda,
Responding to the motion to dismiss, the State disagreed with Defendant’s characterization of the law. Specifically, the State argued that it “is not required to show that the [Djefendant had the specific intent of harming a particular child. Rather, the State must only show the [Djefendant acted with reckless disregard.” The State also argued, in the alternative, that if it were required to show that Defendant was aware of the children in the other vehicle, the State was prepared to do so with testimony from other motorists on the road that night who allegedly saw the children in the back seat of their car.
The district court held a hearing on the motion. Significantly, the court asked the prosecutor why the State had not charged Defendant with vehicular homicide in the alternative. Initially, the prosecutor could not answer the question, adding only that she “wish[edj they had charged the alternative vehicular homicide just to be safe.” The State later characterized it as a discretionary decision on the part of the district attorney’s office.
Following argument, the district court ruled in favor of the State. The court explained that “the current statute as it stands under child abuse does not necessitate or need an awareness factor.” The court further concluded “that all that’s required as far as knowledge is that the [Djefendant knows or should have known that the defendant’s conduct created the substantial or foreseeable risk” without actually being aware of the danger to an identifiable child.
During trial, at the close of the State’s case, Defendant raised the same issue in the form of a motion for directed verdict on the child abuse charges. Defendant was again denied.
The Court of Appeals
Before the Court of Appeals, Defendant again emphasized that “she was unaware that her conduct posed a particular and foreseeable risk of likely injury to the children” and importantly, that there was no evidence to the contrary. State v. Gonzales,
The Court concluded that to be convicted of child abuse a “defendant’s conduct must create a substantial and foreseeable risk of harm to an identified or identifiable child within the zone of danger.” Id. ¶ 21. Further, “[t]he child victim cannot become identified simply by being injured by Defendant: identification of the child and the risk to that child must precede the injury.” Id. In addition, “[t]he defendant must do more than act in a way that endangers the public as a whole.” Id. ¶ 24. This Court did not grant certiorari to review the Court of Appeals opinion in this respect.
Defendant also argued to the Court of Appeals that if her child abuse convictions were overturned, double jeopardy would also preclude a new charge of vehicular homicide, a charge that could have been brought initially but was not. Id. ¶ 3. Again, the Court of Appeals agreed. Id. Relying on State v. Meadors,
DISCUSSION
Standard of Review
“A double jeopardy challenge is a constitutional question of law which we review de novo.” State v. Swick,
Double Jeopardy
The Fifth Amendment of the United States Constitution states, among other things, that no person “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The New Mexico Constitution contains a similar provision. N.M. Const, art. II, § 15.
The Double Jeopardy Clause “protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense.” Monge v. California,
The State makes various arguments as to why double jeopardy should not preclude a trial for vehicular homicide, starting with the fact that Defendant was never charged with that particular offense. The State maintains that “[i]f vehicular homicide is a[n] [uncharged] lesser[]included offense,
It is settled law that if a conviction is overturned for insufficient evidence, the reversal is treated as an acquittal for double jeopardy purposes. As the United States Supreme Court has stated,
Since we necessarily afford absolute finality to a jury’s verdict of acquittal-no matter how erroneous its decision-it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.
Burks v. United States,
In addition, an acquittal of a greater offense prevents retrial of lesser included offenses that could have been, but were not submitted to the jury. According to the Ninth Circuit,
If no instructions are given on lesser included offenses, the jury’s verdict is limited to whether the defendant committed the crime explicitly charged in the indictment. In such cases, an acquittal on the crime explicitly charged necessarily implies an acquittal on all lesser offenses included within that charge. In re Nielsen,131 U.S. 176 , 189-190,9 S.Ct. 672 , 676-677,33 L.Ed. 118 (1889). An acquittal on the explicit charge therefore bars subsequent indictment on the implicit lesser included offenses. Id.
United States v. Gooday,
In this case, the Court of Appeals clearly overturned Defendant’s child abuse convictions for insufficient evidence, stating that “double jeopardy applies where Defendant challenges her convictions for sufficiency of the evidence and she has successfully done so with regard to negligent child abuse here . . . .” Gonzales,
The State failed to attack directly the sufficiency of the evidence determination, and for good reason. Such a ruling is not without precedent in New Mexico law. See, e.g., State v. Kirby,
Rather than attack the sufficiency of the evidence determination, the State argues that Montana v. Hall,
On appeal, Hall reversed fields, arguing that he could not be convicted of incest, but only sexual assault, because the legislature had amended the incest statute to include stepchildren only after he had assaulted his stepdaughter. Id. at 401-02. The Montana Supreme Court agreed with Hall and after declaring the incest conviction void, barred retrial for sexual assault on double jeopardy grounds. Id. at 402. The United States Supreme Court reversed, concluding that the “case falls squarely within the rule that retrial is permissible after a conviction is reversed on appeal.” Id. at 404.
We find the State’s reliance on Hall misplaced. Most importantly the Hall Court reiterated the “venerable principle] of double jeopardy jurisprudence that [t]he successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, poses no bar to further prosecution on the same charge.” Id. at 402 (internal quotation marks and citations omitted). The reversal in Hall was based on grounds other than insufficient evidence, which enabled the Court to conclude that the “case falls squarely within the rule” that reversal does not bar retrial. Id. at 404. The Court stated that Hall’s conviction was reversed “on grounds unrelated to guilt or innocence,” and because “[tjhere is no suggestion that the evidence introduced at trial was insufficient to convict respondent,” the Court did not preclude a subsequent retrial. Id. at 403. Thus, the holding of Hall simply does not apply to a case such as this, in which the Court of Appeals specifically determined that the child abuse convictions were unsupported by substantial evidence.
Disposing of Hall, we return to the Court of Appeals’ conclusion that, under the facts of this case, vehicular homicide was a lesser included offense of negligent child abuse resulting in death, and as a result, double jeopardy barred a new trial. Gonzales, 2 011 -NMCA-081, ¶ 36. We have previously stated that “[t]he Double Jeopardy Clause prohibits successive prosecutions for two offenses arising out of the same conduct if either one is a lesser[]included offense within the other.” State v. Meadors,
Compulsory Joinder
Our rules of criminal procedure require that similar offenses be joined in one prosecution and not be brought piecemeal by way of sequential trials. Rule 5-203(A) NMRA states:
Two or more offenses shall bejoined in one complaint, indictment or information with each offense stated in a separate count, if the offenses, whether felonies or misdemeanors or both:
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts either connected together or constituting parts of a single scheme or plan.
(Emphasis added.) The rule is mandatory; it “is not a discretionary or permissive rule; it demands that the State join certain charges.” State v. Gallegos,
We acknowledge that we raise this issue sua sponte. Neither the State nor D efendant specifically claimed that retrial was barred by Rule 5-203(A). In terms of barring successive prosecutions, however, compulsory joinder and double jeopardy are closely related — two sides of the same coin. Joinder “is designed to protect a defendant’s double-jeopardy interests where the [state] initially declines to prosecute him for the present offense, electing to proceed on different charges stemming from the same criminal episode.” Commonwealth v. Laird,
The purpose of [a] compulsory joinder statute, viewed as a whole, is twofold: (1) to protect a defendant from the governmental harassment of being subjected to successive trials for offenses stemming from the same criminal episode; and (2) to ensure finality without unduly burdening the judicial process by repetitious litigation.
Commonwealth v. Fithian,
The State can claim no unfair surprise. Six years ago, we made it clear in Gallegos,
Years ago, even before adopting a compulsory joinder rule, this Court expressed its “distaste for piecemeal prosecutions.” Id. ¶ 14 (internal quotation marks and citation omitted). We stated in State v. Tijerina, that this Court does not
approve [of] piecemeal prosecution. Such disorderly criminal procedures involve a myriad of problems which threaten the existence of our judicial system. The risk of prejudice to the accused, and the waste of time inherent in multiple trials, both perpetuate delays in the judicial process and unconscionable expenditures of public funds, all of which could be avoided by prosecutors getting their facts straight, their theories clearly in mind and trying all charges together.
Some four years later we went further, transmuting this “judicial policy” into a court rule, when this Court made it mandatory to join offenses arising out of the same occurrence or transaction. See Rule 5-203 Committee Commentary (providing that a 1979 Supreme Court order made joinder mandatory). In short, after reading our comprehensive opinion in Gallegos, the State should have had no doubt about the consequences of its decision not to join vehicular homicide with the other charges.
Until today, we have not considered the proper remedy when the prosecution fails to join charges under Rule 5-203(A). While the rule does not specify a remedy, we clearly intended that the rule
We also observe that in other jurisdictions a bar against retrial is the usual remedy for failing to join offenses under a mandatory joinder rule. Whether joinder is required by court rule, see Ark. R.Cr. P. 21.3 (c), statute, see Colo. Rev. Stat. Ann. § 18-1-408(2) (West 2000), or judicial interpretation, see Kellet v. Super. Ct. of Sacramento Cnty.,
This is not a case in which the charge the State now seeks to bring, vehicular homicide, was unknown at the time Defendant was indicted. The State had at least three different opportunities to join these offenses. The first was in the original indictment, but it chose to ask the grand jury to indict only on charges of child abuse. The second was at the hearing on the motion to dismiss. The State was made fully aware that the charge was available and admitted at that hearing that it knew it was taking a risk when it decided on this particular trial strategy. Finally, under Meadors,
New Jersey courts have noted “the coercive effect” that such all-or-nothing prosecution strategies potentially “exert[] on jury deliberations.” State v. Christener,
[o]n appeal, we do not second-guess the tactical decisions of the litigants. Were we to adopt the State’s position, the [S]tate would have all of the benefits and none of the risks of its trial strategy, while the accused would have all the risks and none of the protections. We believe that both parties are entitled to the benefits and should be liable for the risks of their respective trial strategies.
CONCLUSION
For the reasons expressed in this opinion, we affirm the essential holding of the Court of Appeals barring a subsequent prosecution of Defendant for the crime of vehicular homicide.
IT IS SO ORDERED.
Notes
We observe that this judicial policy against piecemeal prosecutions finds expression in other states. Tennessee, for instance, changed its rule of joinder from permissive to mandatory to specifically stop the practice of “saving back” charges for future prosecution. State v. Johnson,