STATE of New Mexico, Plaintiff-Appellee, v. Martin LYNCH, Defendant-Appellant.
No. 26,252.
Supreme Court of New Mexico.
July 9, 2003.
2003-NMSC-020 | 74 P.3d 73
Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM, for Appellee.
OPINION
MINZNER, Justice.
{1} Defendant appeals from an order of the district court denying his motion to dismiss an amended criminal information charging him with first-degree murder. Defendant contends the district court erred in ruling that the district attorney‘s decision to charge him with first-degree murder, following the Court of Appeals’ reversal of his conviction for second-degree murder, was not contrary to federal and state constitutional protections against double jeopardy and prosecutorial vindictiveness. Defendant initially appealed the order of the district court to the Court of Appeals. See State v. Apodaca, 1997-NMCA-051, ¶ 17, 123 N.M. 372, 940 P.2d 478 (holding defendant has a constitutional right to appeal from an order denying a double jeopardy objection to an indictment). The Court of Appeals certified the matter to us on the ground that language in State v. Martinez, 120 N.M. 677, 678, 905 P.2d 715, 716 (1995), appeared to be inconsistent with the portion of
I
{2} The following facts appear to be undisputed. In April 1996, Defendant and Kim Gurley, who was then separated from her husband Richard Gurley, were living together. On the night of April 15, Defendant and
{3} The State filed a criminal complaint that night, which described the crime as “Murder in the First Degree Open Charge,” and stated that Defendant had killed Richard “by an act greatly dangerous to the lives of other[s].” See
{4} Defendant was tried before a jury in January 1997, and convicted of second-degree murder. Defendant successfully appealed his conviction. State v. Lynch, No. 18,368, slip op. (N.M. Ct. App. Dec. 16, 1998). The Court of Appeals reversed Defendant‘s conviction on the ground that the district court‘s denial of a requested instruction on self-defense or defense of a dwelling as an element of the second-degree murder instruction was potentially confusing to the jury, contrary to State v. Parish, 118 N.M. 39, 878 P.2d 988 (1994). Lynch, No. 18,368, slip op. at 5.
{5} On remand to the district court, Defendant was scheduled to be retried for second-degree murder on July 19, 1999. On defense counsel‘s motion, trial was continued until September 27, 1999. The prosecutor then spoke with Ginger Dickinson, the girlfriend of Kim Gurley‘s step-father, for the first time. In that interview, Dickinson said that prior to the killing she had heard Defendant say that he had learned in prison how to kill a person by stabbing him with a single thrust and that he was going to kill Richard in this way. On August 6, 1999, the State filed an amended criminal information charging Defendant with premeditated first-degree murder, contrary to
{6} Defendant filed a motion to dismiss the first-degree murder charge, alleging that the charge violated his double jeopardy rights and constituted prosecutorial vindictiveness. The district court denied Defendant‘s double jeopardy claim without a hearing. However, the court ordered an evidentiary hearing on the claim of prosecutorial vindictiveness, reasoning that the circumstances surrounding the State‘s filing of a greater charge against Defendant—more than three years after the offense was committed and following a successful appeal—raised a presumption of prosecutorial vindictiveness. Following the hearing, the court determined that the State had overcome the presumption of prosecutorial vindictiveness by proving that newly-discovered evidence led to the filing of the greater charge against Defendant. Defendant subsequently moved twice for reconsideration of the court‘s denial of his double jeopardy claim. The court denied both motions.
{7} Defendant appealed the district court‘s denial of his double jeopardy claim to the Court of Appeals. In certifying this matter, the Court of Appeals noted that Defendant‘s double jeopardy argument appeared meritorious based on the plain language of
II
{8} Under State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1, we first analyze Defendant‘s double jeopardy claim under the federal constitution. If Defendant‘s rights are protected under the federal constitution, we will not examine Defendant‘s state constitutional claim. Id. ¶ 19. If
III
{9} The federal double jeopardy clause has been said to embody three separate protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. See, e.g., Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). In discussing the policies which underlie the double jeopardy clause, the United States Supreme Court has stated:
The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Serfass v. United States, 420 U.S. 377, 387-88, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)).
{10} The amended information is not a second prosecution for the same offense after acquittal under the federal double jeopardy clause. The jury did not acquit Defendant of first-degree murder; that charge was dismissed before trial started. Serfass, 420 U.S. at 391, 95 S.Ct. 1055 (stating that “the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused’ “) (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904)). Nor would Defendant‘s conviction on second-degree murder charges impliedly acquit Defendant of first-degree murder, because second-degree murder was the highest degree of crime charged against him. This is analogous to Montana v. Hall, 481 U.S. 400, 403-04, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987), where the United States Supreme Court held that a defendant who had been convicted under a statute not yet in effect at the time of the alleged conduct could be retried after reversal on appeal for a related offense. See also Lowery v. Estelle, 696 F.2d 333, 340-42 (5th Cir.1983) (holding that a conviction for a lesser offense that is subsequently set aside on appeal does not prevent prosecution of a greater charge not considered at the first trial, because there had been no acquittal of the greater offense at the first trial); cf. Green, 355 U.S. at 191, 78 S.Ct. 221 (holding that the double jeopardy clause prohibits retrial on an offense of which a defendant has been impliedly acquitted in a previous trial). The amended information also does not involve a second prosecution “for an allegedly different offense in the face of ... an unreversed conviction for another offense arising out of the same transaction,” United States v. Ewell, 383 U.S. 116, 124, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), because Defendant‘s conviction for second-degree murder has been reversed. Finally, Defendant has not been punished more than once for the same offense.
{11} The amended information does not implicate any of the three protections embodied in the federal double jeopardy clause. In addition, prosecuting Defendant for first-degree murder does not add to the number of trials Defendant may be required to face. See, e.g., United States v. Scott, 437 U.S. 82, 90-91, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978) (holding that the double jeopardy clause does not bar a second trial where a defendant has successfully appealed his or her conviction of an offense on grounds other than insufficiency of the evidence). Therefore, requiring Defendant to face first-degree murder charges does not greatly increase the expense or ordeal associated with trial. For
IV
A
{12}
No person shall be compelled to testify against himself [or herself] in a criminal proceeding, nor shall any person be twice put in jeopardy for the same offense; and when the indictment, information or affidavit upon which any person is convicted charges different offenses or different degrees of the same offense and a new trial is granted the accused, he [or she] may not again be tried for an offense or degree of the offense greater than the one of which he [or she] was convicted.
We also have a double jeopardy statute, which similarly reads:
When the indictment, information or complaint charges different crimes or different degrees of the same crime and a new trial is granted the accused, he [or she] may not again be tried for a crime or degree of the crime greater than the one of which he [or she] was originally convicted.
{13} Before analyzing the merits of Defendant‘s claim under
{14} We conclude that Defendant preserved this claim. In Defendant‘s motion for reconsideration, he specifically alleged that distinct language within the state constitutional provision justified interpreting it differently than the federal double jeopardy clause. His motion quoted the final clause of
B
{15} Interpretation of constitutional clauses begins with the language of the text. Where the constitutional clause is clear and unambiguous on its face, courts will not construe the clause. See, e.g., Hall v. Progress Pig, Inc., 259 Neb. 407, 610 N.W.2d 420, 427 (2000) (“Like statutes, constitutional provisions are not open to construction as a matter of course; construction is appropriate only when it has been demonstrated that the meaning of the provision is not clear and therefore construction is necessary.“). The text of the relevant portion of
[A]nd when the indictment, information or affidavit upon which any person is convicted charges different offenses or different degrees of the same offense and a new trial is granted the accused, he [or she] may not again be tried for an offense or degree of the offense greater than the one of which he [or she] was convicted.
The Court of Appeals, in certifying this case to this Court, indicated its belief that the plain language of the text conferred upon Defendant a clear and unambiguous right to not be retried for an offense greater than second-degree murder. See State v. Lynch, No. 21,108. We agree with the Court of Appeals that our state constitution confers this right upon Defendant, although the wording of the provision at issue is susceptible to different interpretations.
{16} The State argues that the phrase “again be tried” in
{17} This reading of
{18} Our holding in Martinez was based on the long-settled notion that the right to be free from double jeopardy is not an absolute right. See County of Los Alamos v. Tapia, 109 N.M. 736, 742, 790 P.2d 1017, 1023 (1990); State v. Saavedra, 108 N.M. 38, 41, 766 P.2d 298, 301 (1988). A defendant‘s right to be free from double jeopardy may at times be “subordinated to the countervailing interest of society in the orderly administration of justice.” Tapia, 109 N.M. at 742, 790 P.2d at 1023. At the core of the public‘s interest in the orderly administration of justice is its interest in having the guilty punished after a fair trial. See id. It is the public‘s strong interest in seeing the guilty punished after a fair trial that allows the State to reprosecute a defendant who has successfully appealed his or her conviction on the basis of trial error, see United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964) (“While different theories have been advanced to support the permissibility of retrial, of greater importance than the conceptual abstractions employed to explain [this] principle are the implications of that principle for the sound administration of justice.“), or where a mistrial is ordered as a matter of “manifest necessity,” United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (plurality opinion). In Martinez, the jury was unable to reach a unanimous verdict on the attempted murder charge, thereby creating a “manifest necessity” for a mistrial. 120 N.M. at 679, 905 P.2d at 717. In addition, it was defense counsel who requested the declaration of a mistrial on the attempted murder charge. Id. According to long-es- tablished
{19} The statement in Martinez that may appear to be inconsistent with
{20} The facts in this case are very different from the facts in Martinez. In Martinez, the defendant contended that the State could not prosecute him a second time on a charge on which the jury was unable to reach a verdict in the first trial. In rejecting this claim, we stated that “[t]he State is entitled to a verdict on all charges presented in the same prosecution.” 120 N.M. at 679, 905 P.2d at 717. The jury did not “return[] a verdict” as to the attempted murder charge because it was unable to unanimously agree regarding that charge. If the jury had unanimously decided that the defendant was not guilty of attempted murder, then the jury would have “return[ed] a verdict” as to that charge, thus implicating the protections of
C
{21} The conclusion we reach today that Defendant may not be tried for first-degree murder upon remand to the district court is supported even more strongly by the wording of
{22}
{23} As a historical note, there was another former jeopardy statute in effect prior to the current one.
No person shall be held to answer on a second indictment for an offense of which he has been acquitted by the jury, upon the facts and merits on a former trial, and such acquittal may be pleaded by him in bar of any subsequent prosecution for the same offense, notwithstanding any defect in the form or in the substance of the indictment on which he was acquitted.
D
{24} Our holding today should not be read to mean that there would be no bar to retrial on a higher count if the State chose to charge only one crime in the initial indictment, due to the fact that the constitutional provision applies when “the indictment, information or complaint charges different crimes or different degrees of the same crime.” For example, if in the present case Defendant were only charged with second-degree murder, and no lesser-included offenses such as manslaughter, this would not operate to remove him from the protections of the constitution because
V
{25} Defendant also challenges the district court‘s determination that the prosecution‘s filing of first-degree murder charges against him was not motivated by prosecutorial vindictiveness. Because we reverse Defendant‘s conviction on double jeopardy grounds, we need not address Defendant‘s prosecutorial vindictiveness argument. We also note that Defendant did not appeal this determination by the trial court, and this issue was not part of the Court of Appeals’ certification order. Further, under federal law, the district court‘s decision was not a final order. United States v. Hollywood Motor Car Co., 458 U.S. 263, 270, 102 S.Ct. 3081, 73 L.Ed.2d 754 (1982).
VI
{26} We reverse the district court‘s determination that trying Defendant for first-degree murder following his successful appeal of a conviction for second degree murder does not violate his rights under the state double jeopardy clause. We remand the case to the district court for proceedings consistent with this opinion.
{27} IT IS SO ORDERED.
WE CONCUR: RICHARD C. BOSSON and EDWARD L. CHAVEZ, Justices.
PETRA JIMENEZ MAES, Chief Justice (dissenting).
PATRICIO M. SERNA, Justice (dissenting).
MAES, Chief Justice (Dissenting).
{28} Regretfully, I must dissent from the majority‘s conclusion that
{29}
{30} I begin my analysis with a discussion of the history behind
Constitutional History
{31} New Mexico‘s first Bill of Rights, promulgated in 1846 by Brigadier General Kearny, articulated protection against double jeopardy. The Kearny Bill of Rights provides, in relevant part: “That no person after having once been acquitted by a jury can be tried a second time for the same offense.”
{32} During the late nineteenth century, other movements for statehood gathered momentum and state constitutions were drafted in 1872 and 1889. See Smith, supra, at 4-8. The Double Jeopardy Clause of the 1872 constitution utilized language similar to that found in the
{33} In 1910, another constitution was drafted. This constitution would become the Constitution of the State of New Mexico. At the constitutional convention, the Committee on Bill of Rights proposed using the same language used in the 1889 version (“nor shall
and when the indictment or accusation upon which any person is put to trial and convicted contains different offenses or different degrees of the same offense, and a new trial is granted the accused, he may not again be tried for an offense or degree of the offense greater than the one of which he was first convicted.
{34} In deciding to add the final clause to the double jeopardy provisions, the delegates to the Constitutional Convention significantly departed from the double jeopardy clauses formulated by the drafters of the 1850, 1872, and 1889 constitutions, as well as from the language used in the double jeopardy clauses of most other states and the
{35} In Trono v. United States, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292 (1905), three defendants had been tried for first degree murder by a court in the Phillippines. At the conclusion of trial, each of the defendants had been acquitted of murder but found guilty of assault. Id. at 522, 26 S.Ct. 121.4 The defendants appealed their convictions. Id. On appeal, the Supreme Court of the Phillippines set aside the judgment of the trial court and found the defendants guilty of second degree murder. Id. The defendants appealed their convictions to the United States Supreme Court, alleging that the appellate court‘s actions in reversing the trial court‘s judgment and finding them guilty of second-degree murder violated their protection against double jeopardy.4 Id. at 528, 26 S.Ct. 121. The United States Supreme Court affirmed the Supreme Court of the Phillippines. Id. at 535, 26 S.Ct. 121. The Court reasoned that, by challenging their convictions, the defendants had waived their double jeopardy rights to the entire case. See id. at 533, 26 S.Ct. 121. In so holding, the Court expressly rejected the doctrine, adopted by a number of state courts, that a defendant who appealed his or her conviction only waived his or her double jeopardy rights as to that offense (as opposed to all offenses charged). See id. at 530-33, 26 S.Ct. 121.
{36} Following Trono, the delegates to the 1910 Constitutional Convention would likely have understood that the generalized language used in the 1889 New Mexico Constitution and written into the 1910 New Mexico Constitution, “nor shall any person be twice put in jeopardy for the same offense,” would be susceptible to the same construction that the United States Supreme Court had given to substantially similar language in Trono. I cannot say with absolute certainty that those drafting the New Mexico Constitution added the final clause to
{37} In my opinion, the final clause of
[Defendant] was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the ga[u]ntlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury‘s verdict as an implicit acquittal on the charge of first degree murder.
Green, 355 U.S. at 190, 78 S.Ct. 221. In so holding, the Green Court effectively overruled Trono. See Green, 355 U.S. at 197-98, 78 S.Ct. 221 (limiting Trono to “its peculiar factual setting,” based on traditions in Philippine courts). I think the drafters of
{38} I recognize, however, that my construction of
{39} We have no power “to enlarge the scope of constitutional provisions beyond their intent.” Bd. of Educ. v. Robinson, 57 N.M. 445, 450, 259 P.2d 1028, 1032 (1953). Some scholars divide constitutional provisions into two categories. See, generally, Ronald Dworkin, Freedom‘s Law 73-73 (1996). Some clauses contain prohibitions that are very specific; these are couched in concrete language. See, e.g.,
The Plain Language of Article II, Section 15
{40} The majority, concluding that the protections embodied in
{41} Only one prior case has construed the language at issue here. See State v. Martinez, 120 N.M. 677, 905 P.2d 715 (1995). In that case, the defendant was charged with attempted murder and aggravated battery. Id. The jury was unable to reach a verdict on the attempted murder charge, but convicted the defendant of aggravated battery. Id. The issue on appeal was whether the State could retry the defendant for attempted murder. Id. at 678, 905 P.2d at 716. The defendant, relying on both
{42} The Martinez Court cited State v. Sneed, 78 N.M. 615, 617, 435 P.2d 768, 770 (1967), for the proposition that
{43} If the majority‘s interpretation of the language were correct, then the subsequent prosecution would have been barred in Martinez as well. In that case, the indictment charged different offenses. After the defendant was convicted of the lesser charge, he was granted a new trial based on improperly admitted evidence. Therefore,
{44} Defendant argues that Martinez is distinguishable because the jury failed to return a verdict on the higher charge in that case. Thus, according to Defendant, Martinez merely applied the general rule that the state can retry a defendant after a jury fails to return a verdict. Defendant is correct in observing that when a jury is unable to reach a verdict, the second trial is a continuation of the first, and the defendant therefore is only placed in jeopardy once. Martinez, 120 N.M. at 678, 905 P.2d at 716. The same is true, however, when a defendant successfully overturns a conviction. Retrial after reversal on any ground other than insufficient evidence is “[a]t the opposite end of the spectrum” from an acquittal for double jeopardy purposes. County of Los Alamos v. Tapia, 109 N.M. 736, 743, 790 P.2d 1017, 1024 (1990). In such a case “society‘s interest in administering its laws completely overrides the defendant‘s interest in freedom from [the] hardships [of retrial].” Id. As the United States Supreme Court explained, when a defendant is successful on appeal, his conviction is “wholly nullified and the slate wiped clean.” North Carolina v. Pearce, 395 U.S. 711, 721, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).5
{46} Such a conclusion does not leave a defendant with no protection in such cases. Instead, the State‘s charging decision is constrained by the Due Process Clause, which prohibits vindictive prosecution. See Blackledge v. Perry, 417 U.S. 21, 28, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); State v. Brule, 1999–NMSC-026, ¶ 16, 127 N.M. 368, 981 P.2d 782. That doctrine prevents the State from bringing a higher charge as retribution for a defendant‘s successful appeal. In this case, the State claimed that its decision to bring new charges was based on new information that became available after Defendant‘s successful appeal. The trial court found that the State‘s decision was not motivated by vindictiveness. I agree with the majority that Defendant‘s due process claim is not before us at this time.
{47} For the reasons stated above, I dissent.
I CONCUR: PATRICIO M. SERNA, Justice.