No person shall be compelled to testify against himself 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 may not again be tried for an offense or degree of the offense greater than the one of which he was convicted.

ANNOTATIONS

Cross references. — See Kearny Bill of Rights, cls. 7 and 8, on NMOneSource.com.

For authority to grant immunity from prosecution under the Organized Crime Act, see 29-9-9 NMSA 1978.

For defense of double jeopardy being raised at any time and provision that defense may not be waived, see 30-1-10 NMSA 1978.

Comparable provisions. — Idaho Const., art. I, § 13.

Montana Const., art. II, § 25.

Utah Const., art. I, § 12.

Wyoming Const., art. I, § 11.

I. GENERAL CONSIDERATION.

II. SELF-INCRIMINATION.

A. IN GENERAL.

Test for Miranda custody. — The test for determining whether a defendant is in Miranda custody is not a test that uses a fourth amendment analysis of investigatory detention versus de facto arrest, but the objective test of whether the defendant’s freedom of movement was restrained by formal arrest or of the degree of restraint associated with a formal arrest. State v. Wilson, 2007-NMCA-111, 142 N.M. 737, 169 P.3d 1184, cert. denied, 2007-NMCERT-008, 142 N.M. 435, 166 P.3d 1089.

Incomplete Miranda warnings. – Where the police officer began to read the defendant his Miranda warnings during a custodial interrogation, but was interrupted by the defendant who said that he understood his rights, and the police officer failed to inform the defendant that an attorney would be provided to him if he could not afford one and that any statements the defendant made could be used as evidence against him, the defendant did not waive his Miranda rights, the defendant’s statements to the officer were not harmless beyond a reasonable doubt, and should have been suppressed. State v. Verdugo, 2007-NMCA-095, 142 N.M. 267, 164 P.3d 966, cert. quashed, 2008-NMCERT-011, 145 N.M. 532, 202 P.3d 125.

Miranda warnings must convey the right to counsel prior to questioning. — Where a law enforcement officer, after arresting defendant for murder, recited defendant’s Miranda rights from memory and without the use of a department-issued card, and where the officer’s recitation of rights included the right to an attorney during any and all questioning, but failed to reasonably convey to defendant that he had the right to consult with counsel prior to questioning, the district court erred in denying defendant’s motion to suppress statements made while in custody, because Miranda warnings must convey the right to the presence of counsel prior to questioning. State v. Serna, 2018-NMCA-074.

Sufficiency of warnings under Miranda. — A Miranda warning without any improper temporal limitation adequately conveys that a suspect has the right to the presence of counsel before and during interrogation. Under Miranda, the right to have counsel present prior to as well as during questioning is adequately conveyed simply by informing a suspect of the right to counsel. State v. Atencio, 2024-NMSC-022, aff'g in part and rev'g in part 2021-NMCA-061, 499 P.3d 635.

Warnings given to defendants were adequate under Miranda. — In consolidated cases, where defendants claimed they were not adequately advised of their rights under Miranda, where one defendant who was advised that he had the "right to a lawyer" claimed that the warning he received was too general, thereby failing to explicitly inform him of his right to speak to an attorney before questioning as well as the right to have such attorney present during questioning, and where the second defendant who was advised that he had "the right to an attorney and have him/her present while you are being questioned" claimed that this warning was inadequate because it placed an improper temporal limitation on his right to counsel, suggesting that the right did not apply before questioning, the warnings each defendant received were adequate because they reasonably conveyed the defendants' right to the presence of an attorney at all times, did not omit any information Miranda required, and did not improperly suggest any temporal limitation on the right to counsel. State v. Atencio, 2024-NMSC-022, aff'g in part and rev'g in part 2021-NMCA-061, 499 P.3d 635.

Miranda warning to hearing-impaired individual. — Where defendant was arrested for willfully discharging a firearm at a motor vehicle and taken to a police station for custodial interrogation; the interrogating officer read defendant's Miranda rights and asked defendant if defendant had a problem hearing; when defendant informed the officer that defendant had a hearing impairment, the officer gave defendant a copy of the Miranda warnings, which defendant read aloud; the warnings did not notify defendant that defendant had a right to an interpreter at no cost before proceeding; defendant signed a waiver of rights and made incriminating statements; defendant admitted that defendant understood the Miranda warnings and voluntarily waived them; and defendant claimed that because defendant was not informed of defendant's right to a sign language interpreter as required by the federal Rehabilitation Act of 1973, 29 U.S.C. § 794(a), the Miranda warnings were insufficient and defendant's incriminating statements should have been suppressed, the district court did not err in denying defendant's motion to suppress the incriminating statements. State v. Casares, 2014-NMCA-024, cert. denied, 2014-NMCERT-001.

Voluntary statements inadmissible if Miranda procedures not followed. — Voluntariness relates to the trustworthiness or reliability of statements, whereas waiver of rights relates to the compliance with the strictures of Miranda; Miranda requires law enforcement officers, before questioning someone in custody, to give specified warnings and follow specified procedures during the course of an interrogation, and any statement given without compliance with these procedures cannot be admitted in evidence against the accused over his objection, even if it is wholly voluntary. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Miranda holds that if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease; this is directive only and does not require a warning prior to interrogation to the effect that defendant has a right to stop the questioning at any point and time. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078.

Miranda-type warnings in school disciplinary matters. — Miranda-type warnings are not required in cases involving in-school disciplinary matters since the purpose of most schoolhouse interrogations is to find facts related to violations of school rules or relating to social maladjustments of the child with a view toward correcting it, and giving Miranda-type warnings would only frustrate this purpose by putting the school official and student in an adversary position, in direct opposition to the school official's role of counselor. Doe v. State, 1975-NMCA-108, 88 N.M. 347, 540 P.2d 827, cert. denied, 88 N.M. 318, 540 P.2d 248.

Court to determine whether precautionary warning adequate. — It is always open to an accused to subjectively deny that he understood the precautionary warning and advice with respect to his right to remain silent and to assistance of counsel, and when the issue is raised in an admissibility hearing it is for the court to objectively determine whether in the circumstances of the case the words used were sufficient to convey the required warning. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled by Sells v. State, 98 N.M. 786, 653 P.2d 162.

Words of warning found adequate. — Warning given by the district attorney - that anything defendant said "could" (not "could and would") be used against him - was constitutionally adequate. State v. Briggs, 1970-NMCA-062, 81 N.M. 581, 469 P.2d 730.

Purpose of right against self-incrimination. — In the search and seizure context the prime purpose of an exclusionary rule is to deter future unlawful police conduct, and this rationale may be applicable to the right against compulsory self-incrimination. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Privilege of not being witness against oneself. — The privilege against self-incrimination is the privilege of not being a witness against oneself. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, aff'd in part, rev'd in part, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

Right against self-incrimination equal with right of confrontation. — One person's right against self-incrimination and another's right to be confronted with the witnesses against him cannot be balanced. Both rights stand on an equal footing, and neither is more important than the other. State v. Curtis, 1974-NMCA-140, 87 N.M. 128, 529 P.2d 1249.

Elements necessary to sustain privilege. — To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. State v. Zamora, 1972-NMCA-126, 84 N.M. 245, 501 P.2d 689.

Privilege against self-incrimination is limited to disclosures that are "testimonial" or "communicative" in nature. State v. Mordecai, 1971-NMCA-139, 83 N.M. 208, 490 P.2d 466.

The scope of the privilege against self-incrimination is limited to disclosures which are testimonial in nature. State v. Ramirez, 1967-NMCA-028, 78 N.M. 584, 434 P.2d 703.

State may require nontestimonial acts of criminal defendants. — The rule in New Mexico has consistently been that the state may require nontestimonial acts of criminal defendants which tend to identify them without offending the right to remain silent. State v. Baca, 1990-NMCA-123, 111 N.M. 270, 804 P.2d 1089, cert. denied, 111 N.M. 164, 803 P.2d 253.

Privilege does not include identifying physical characteristics by photograph. State v. Mordecai, 1971-NMCA-139, 83 N.M. 208, 490 P.2d 466.

The privilege against self-incrimination applies to disclosures that are "communicative" or "testimonial"; the privilege does not include identifying physical characteristics. State v. Jamerson, 1974-NMCA-001, 85 N.M. 799, 518 P.2d 779.

The act of allowing the prosecutrix to view the defendant for the purpose of identifying him did not violate his constitutional privilege against self-incrimination. State v. White, 1967-NMSC-016, 77 N.M. 488, 424 P.2d 402.

Privilege does not include voice identification, wearing mask or walking. — Defendant's constitutional privilege against self-incrimination was not violated by the fact that, following arrest, defendant was brought before two prosecuting witnesses for the purpose of identification and was directed to talk for voice identification and to wear a mask of the kind claimed to have been worn by the robber and to walk for the purpose of supplying additional identifying characteristics. State v. Ramirez, 1967-NMCA-028, 78 N.M. 584, 434 P.2d 703.

Fingerprinting is not within the privilege against self-incrimination. — Therefore, motion during trial and alleged statement during closing argument, both of which referred to fingerprinting, did not violate the privilege. State v. Jamerson, 1974-NMCA-001, 85 N.M. 799, 518 P.2d 779.

Drawing of blood is not within the privilege against self-incrimination. — The privilege against self-incrimination applies to disclosures that are communicative or testimonial, and the defendant was not compelled to testify against himself by the drawing of blood from his body. State v. Richerson, 1975-NMCA-027, 87 N.M. 437, 535 P.2d 644, cert. denied, 87 N.M. 450, 535 P.2d 657.

Compelled handwriting not self-incrimination. — Compelled handwriting exemplars are nontestimonial and do not constitute self-incrimination. State v. Hovey, 1987-NMSC-080, 106 N.M. 300, 742 P.2d 512.

Furnishing of handwriting exemplars is not within the privilege against self-incrimination. — Where the content of handwriting exemplars is neither testimonial nor communicative matter, defendant's privilege against self-incrimination is not violated by being compelled to furnish the exemplars. State v. Archuleta, 1970-NMCA-131, 82 N.M. 378, 482 P.2d 242, cert. denied, 82 N.M. 377, 482 P.2d 241 (1971).

Since handwriting exemplars themselves do not violate a defendant's constitutional privilege, the compulsion in furnishing the exemplars also do not violate the privilege. State v. Archuleta, 1970-NMCA-131, 82 N.M. 378, 482 P.2d 242, cert. denied, 82 N.M. 377, 482 P.2d 241 (1971).

Psychiatric examination is not within the privilege against self-incrimination. — A court-ordered psychiatric examination does not violate defendant's privilege against self-incrimination. State v. Kendall, 1977-NMCA-002, 90 N.M. 236, 561 P.2d 935, aff'd in part, rev'd in part, 1977-NMSC-015, 90 N.M. 191, 561 P.2d 464.

A compelled psychological examination does not violate the rights of a criminal defendant who raises insanity as an affirmative defense, and who intends to present expert testimony as to his sanity at trial. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197.

Real or physical evidence is not within the privilege against self-incrimination. — The distinction which has emerged, often expressed in different ways, is that the privilege against self-incrimination is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it. State v. Williamson, 1968-NMSC-033, 78 N.M. 751, 438 P.2d 161, cert. denied, 393 U.S. 891, 89 S. Ct. 212, 21 L. Ed. 2d 170 (1968).

Appellant's contention that the cutting of his hair and subsequent use for comparison with other hair was a violation of his rights against self-incrimination was without merit where, although the appellant was unaware of the nature of the future use of the samples taken, he made no protest. State v. Williamson, 1968-NMSC-033, 78 N.M. 751, 438 P.2d 161, cert. denied, 393 U.S. 891, 89 S. Ct. 212, 21 L. Ed. 2d 170 (1968).

Trial judge determines whether question calls for incriminating answer. — Whether question propounded, on its face, calls for answer reasonably calculated or tending to incriminate the witness is for trial judge to say, after considering the matter from all standpoints, and the witness is not entitled to decide this matter for himself. Apodaca v. Viramontes, 1949-NMSC-064, 53 N.M. 514, 212 P.2d 425.

Witness compelled to answer nonincriminating question. — Prosecution may by proper questioning compel answer to fact within witness's knowledge, divulgence of which has no reasonable or rational likelihood of connecting witness with commission of crime. Apodaca v. Viramontes, 1949-NMSC-064, 53 N.M. 514, 212 P.2d 425.

Purpose of exclusionary rule. — In the search and seizure context the prime purpose of an exclusionary rule is to deter future unlawful police conduct, and this rationale may be applicable to the right against compulsory self-incrimination. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right, and by refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused, but where the official action was pursued in complete good faith, the deterrence rationale loses much of its force. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

One purpose of an exclusionary rule is related to the quality of the evidence, this issue being framed in terms of voluntariness, which was used as a test for protecting the courts from relying on untrustworthy evidence, before Miranda. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Recordings of telephone calls from jail. — Where defendant made telephone calls from jail requesting that defendant’s friends be present at defendant’s trial ostensibly to influence the testimony of the state’s witnesses; and when a call was placed at the jail, a digital message informed both parties to the call that the call may be recorded and monitored, the recording of the telephone calls did not violate the prohibition against self incrimination. State v. Johnson, 2010-NMSC-016, 148 N.M. 50, 229 P.3d 523.

Admissibility of statement made while released on bond. — Trial court did not err in allowing admission of evidence of incriminating statement voluntarily made by defendant after he was arrested and released on bond, but was no longer in custody or being questioned, and where such statement was obtained neither surreptitiously nor by threat or promise, without prior showing of evidence that at the time of the claimed admission the defendant had been fully advised of his right to advice of legal counsel and his right not to be compelled to testify against himself. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350.

Admissibility of statement made at preliminary parole revocation hearing. — The defendant's right against self-incrimination was not violated when the defendant's statement admitting cocaine use made at a preliminary parole revocation hearing was used in a subsequent trial because the preliminary parole hearing is not distinguishable from other administrative and judicial proceedings in which a witness is only entitled to protection when the witness invokes the right and refuses to answer. State v. Gutierrez, 1995-NMCA-018, 119 N.M. 618, 894 P.2d 395, cert. denied, 119 N.M. 464, 891 P.2d 1218.

Questions answered at probation revocation hearing. — Where defendant at probation revocation hearing was not called or sworn as a witness, but was advised by the court as to the nature of each charge made against him and was asked whether or not the charge was true, and thereby was given an opportunity to admit or deny the charge, and where he was also given an opportunity to explain his plea to each charge, and in some instances he offered an explanation, this did not constitute compelled, coerced or required testimony by defendant against himself. These proceedings were in the nature of an arraignment. State v. Brusenhan, 1968-NMCA-006, 78 N.M. 764, 438 P.2d 174.

Testimony before grand jury. — Witness may assert his immunity at trial even though he testified before grand jury. Apodaca v. Viramontes, 1949-NMSC-064, 53 N.M. 514, 212 P.2d 425.

Use of derivative use immunity. — Section 31-6-15 NMSA 1978 and Rules 5-116 and 11-412 NMRA, allow the government to compel a witness to testify and then prosecute the witness for the crimes mentioned in the compelled testimony, as long as neither the testimony itself nor any information directly or indirectly derived from the testimony is used in the prosecution. However, it is not enough for the prosecutor to simply assert that all evidence to be used at trial was obtained prior to the defendant's immunized testimony; instead, the state must present testimony from key witnesses, along with testimony from the prosecutor and the investigators, that the witnesses had not had access or otherwise been exposed to the defendant's immunized testimony. State v. Vallejos, 1994-NMSC-107, 118 N.M. 572, 883 P.2d 1269.

No right to warning of consequences of refusing blood test. — Miranda-type warnings are necessary only in situations of either testimonial or communicative evidence, and New Mexico has consistently excluded physical evidence from the scope of the protection; it follows that an accused has no constitutional right to a warning concerning the consequences of refusing a blood test. State v. Myers, 1975-NMCA-055, 88 N.M. 16, 536 P.2d 280.

No right to instruction on right to refuse blood test. — There is nothing in this section or N.M. Const., art. II, § 14, or in New Mexico laws or decisions which gives an accused the legal right to an instruction that he has a right to refuse to take a blood alcohol test, where defendant did not object to admission of evidence that he refused to take such test. State v. Fields, 1964-NMSC-230, 74 N.M. 559, 395 P.2d 908.

Decision not to take stand does not impair right against self-incrimination. — An accused may hesitate to take the witness stand if his past criminal record is such that his credibility will probably be completely destroyed in the eyes of the jury if this record is made known to the jury. However, this in no way impairs his right against self-incrimination, his right not to be deprived of his life, liberty or property without due process of law, nor his right to a public trial by an impartial jury. State v. Duran, 1972-NMCA-059, 83 N.M. 700, 496 P.2d 1096, cert. denied, 83 N.M. 699, 496 P.2d 1095.

The fact that in taking the stand in his own behalf, defendant may thereby incriminate himself, does not, in itself, establish that defendant was deprived of due process. State v. Silver, 1971-NMCA-112, 83 N.M. 1, 487 P.2d 910.

Refusal of witness to answer incriminating question cannot prejudice parties. — When a witness, other than the accused, declines to answer a question on the ground his answer would tend to incriminate him, the refusal alone cannot be made the basis of any inference by the jury, either favorable to the prosecution or favorable to the defendant. State v. Polsky, 1971-NMCA-011, 82 N.M. 393, 482 P.2d 257, cert. denied, 82 N.M. 377, 482 P.2d 241, cert. denied, 404 U.S. 1015, 92 S. Ct. 688, 30 L. Ed. 2d 662 (1972).

Sufficient mental capacity required for defendant to make valid statement. — For defendant to make a valid statement the defendant must have had sufficient mental capacity at the time he made the statement, to be conscious of the physical acts performed by him, to retain them in his memory, and to state them with reasonable accuracy, and where there was evidence which met this standard, the trial court did not err in refusing to suppress the statement. State v. Chavez, 1975-NMCA-119, 88 N.M. 451, 541 P.2d 631.

State has burden to show that statement not exploitive of prior illegal statement. — The fact that defendant may understand his rights at the time of a later statement does not discharge state's burden of showing that later statement is not exploitation of prior illegal statement, and it is improper to admit the later incriminating statement at trial. State v. Dickson, 1971-NMCA-020, 82 N.M. 408, 482 P.2d 916.

Promises of immunity. — Neither district attorney nor court is granted constitutional or statutory power, acting either singly or in concurrence, to extend immunity to a witness so as to compel him to testify regardless of incriminating character of his testimony. Apodaca v. Viramontes, 1949-NMSC-064, 53 N.M. 514, 212 P.2d 425.

Where defendant's presence at the scene of a burglary, which from the record appeared to have included larceny, could tend to incriminate him and subject him to prosecution for larceny, the district court could not properly require defendant to answer questions about whether defendant saw another person charged with burglary at the scene of the crime, in light of defendant's self-incrimination claim, and his refusal to answer did not constitute criminal contempt, even where the district attorney stated that "under no consideration would he file any other charges" against defendant growing out of the burglary. State v. Watson, 1971-NMCA-104, 82 N.M. 769, 487 P.2d 197.

Narrow scope of inquiry in consolidated cases. — Where prosecutions against two or more defendants are consolidated, the consolidation results in compelling adoption for both cases of the narrowest scope of inquiry applicable to either since witnesses may not be prejudiced in exercising their claims of privilege by having the scope of inquiry in the one case extended to the permissible scope obtaining in the other. Apodaca v. Viramontes, 1949-NMSC-064, 53 N.M. 514, 212 P.2d 425.

Results of polygraph test are not admissible over objection. Chavez v. New Mexico, 456 F.2d 1072 (10th Cir. 1972).

Where defendant had sought polygraph test and had freely and voluntarily agreed that the results thereof, and their interpretation by the examiner, would be admissible as evidence, and with full knowledge that all evidence as to the test, including the results and interpretation thereof by the examiner, could still be kept from the jury by objecting thereto, made no objection, defendant thereupon waived all rights he had concerning introduction into evidence of matters he claimed were self-incriminating. State v. Chavez, 1970-NMCA-128, 82 N.M. 238, 478 P.2d 566.

Results of voluntary polygraph test not equated with self-incrimination. — The voluntary submission by defendant to polygraph examination, which was conducted at his request, without first being given the Miranda warnings and without knowing all that would be asked of him, his responses thereto, and the results of the examination, is not to be equated with self-incrimination, nor is the examiner's interpretation of the results of such examination to be equated with an interpretation from one language into another of self-incriminating statements. State v. Chavez, 1970-NMCA-128, 82 N.M. 238, 478 P.2d 566.

Interrogating accused in absence of counsel. — Any practice on the part of officials of interrogating an accused in the absence of his counsel whether retained or appointed is strongly disapproved, particularly after the accused has been charged with the crime and the interrogation is designed to secure evidence of guilt to be introduced in the criminal trial against the accused. State v. Lopez, 1969-NMCA-019, 80 N.M. 130, 452 P.2d 199.

Alibi rule does not violate privilege against self-incrimination. — In applying the alibi rule so as to exclude evidence of alibi not disclosed to the district attorney and thus giving defendant a choice between foregoing the defense or taking the stand himself to present it, the trial court did not violate defendant's privilege against self-incrimination. State v. Smith, 1975-NMCA-139, 88 N.M. 541, 543 P.2d 834.

Applicability of privilege to corporations. — The evidentiary privilege against self-incrimination of this section, the fifth amendment of the U.S. constitution, and 29-9-9 NMSA 1978, does not apply to corporations or a corporation's agent in his representative capacity. Doe v. State ex rel. Governor's Organized Crime Prevention Comm'n, 1992-NMSC-022, 114 N.M. 78, 835 P.2d 76.

Admissibility of tape recorded evidence. — Where informer making purchases of heroin from defendants had an electronic device concealed on his person that transmitted sounds to a receiver in a police car and the sounds were recorded on tape, defendants' contention that the tapes were erroneously admitted as evidence, that they were victims of an illegal search and seizure, and that their privilege against self-incrimination was violated was without merit. The informer having testified as to the conversations, the tapes were admissible to corroborate the informer's testimony. State v. Maes, 1970-NMCA-053, 81 N.M. 550, 469 P.2d 529, cert. denied, 81 N.M. 588, 470 P.2d 309.

Juvenile proceedings regarded as "criminal". — Juvenile proceedings to determine "delinquency," which may lead to commitment to a state institution, must be regarded as "criminal" for purposes of the privilege against self-incrimination. Peyton v. Nord, 1968-NMSC-027, 78 N.M. 717, 437 P.2d 716.

Statute requiring any person who kills bovine to preserve its hide unmutilated for 30 days does not violate constitutional immunities from self-incrimination and unreasonable search and seizure. State v. Walker, 1929-NMSC-050, 34 N.M. 405, 281 P. 481; see also State v. Knight, 1929-NMSC-049, 34 N.M. 217, 279 P. 947.

B. STATEMENTS MADE DURING INTERROGATION.

Interrogation of a hospital patient. — Where a police officer interviewed the defendant in a hospital immediately following an automobile accident in which the defendant had been severely injured; although the defendant was in pain, the defendant was responsive to the officer’s questions and gave coherent answers; the defendant made several inculpatory statements in response to the officer’s questions, including an admission that the defendant had taken amphetamines and Loratab without a prescription; and there is no evidence that the officer restrained, threatened, promised special treatment or physically abused the defendant or prevented the defendant from terminating the interview, the defendant’s statements were voluntary and the defendant was not subjected to a custodial interrogation. State v. LaCouture, 2009-NMCA-071, 146 N.M. 649, 213 P.3d 799, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42.

Statutory rights of a child during an investigatory detention. — Miranda requires that suspects be advised of their rights under the Fifth Amendment of the United States Constitution prior to any questioning during a custodial interrogation. It is within the legislature’s authority to provide greater statutory protection than accorded under the federal constitution. Under 32A-2-14 NMSA 1978, a child who is suspected or alleged of having committed a delinquent act cannot be interrogated or questioned during an investigatory detention unless the child is first advised of his or her statutory right to remain silent and the child knowingly, intelligently, and voluntarily waives his or her rights. The state bears the burden of proving that the child knowingly, intelligently, and voluntarily waived the statutory right to remain silent. The remedy for violating 32A-2-14 NMSA 1978 is to preclude the admission, in court proceedings, of any statement or confession elicited from the child. State v. Antonio T., 2015-NMSC-019, rev’g 2013-NMCA-035, 298 P.3d 484.

Questioning a child suspected of delinquent behavior by a school administrator in the presence of a law enforcement officer constitutes an investigatory detention. — When a child suspected of delinquent behavior is questioned in the presence of a law enforcement officer, that child is subjected to an investigatory detention, triggering the protections of 32A-2-14 NMSA 1978. State v. Antonio T., 2015-NMSC-019, rev’g 2013-NMCA-035, 298 P.3d 484.

Where the assistant principal of a high school suspected a seventeen-year-old student of being intoxicated and questioned the child in the presence of the student resource officer, a certified law enforcement officer, the questioning of the child constituted an investigatory detention, triggering the protections of 32A-2-14 NMSA 1978. The statements made by the child in response to the assistant principal’s questions were inadmissible because the child was not advised of his statutory right to remain silent and the state failed to prove that the child knowingly, intelligently, and voluntarily waived his statutory right to remain silent. State v. Antonio T., 2015-NMSC-019, rev’g 2013-NMCA-035, 298 P.3d 484.

Interrogation of a student by a school administrator in the presence of a police officer. — Where a vice principal interrogated a high school student, who was suspected of being intoxicated, in the vice principal’s office in the presence of a uniformed police officer; the purpose of the vice principal’s investigation was to ensure the safety of defendant and other students; the vice principal called the officer to administer a breath test and to protect the vice principal; the officer administered the breath test on defendant and searched a bathroom where defendant said defendant had disposed of a bottle of alcohol; defendant admitted to drinking; and defendant’s statements were used in a defendant’s juvenile case, defendant was not entitled to Miranda warnings from the vice principal despite the presence of the police officer because the interrogation constituted an investigatory detention, not a custodial detention, and the vice principal was acting to serve the school’s interests in a safe environment, not on behalf of law enforcement. State v. Antonio T., 2013-NMCA-035, 298 P.3d 484, rev’d, 2015-NMSC-019.

Statement made during interrogation. — Where police officers went to the defendant’s apartment to determine if the defendant had written a threatening message to the victim of aggravated stalking in violation of a temporary restraining order that the victim had obtained against the defendant; while the officers were parked in front of the apartment, the defendant pulled up in a vehicle, walked to the police officers and yelled that the defendant understood the officers were looking for the defendant; because the officers knew the defendant carried Ninja knives, the officers frisked the defendant; the defendant was not restrained in any manner; the officers questioned the defendant about the reason they were looking for the defendant; the defendant made a number of incriminating statements regarding the violation of the TRO and the threats the defendant had made to the victim; and the officers did not read the defendant’s Miranda rights to the defendant during the encounter with the officers, the defendant was not in custody when the defendant made the incriminating statements during the interrogation and the defendant’s incriminating statements were admissible into evidence. State v. Smile, 2009-NMCA-064, 146 N.M. 525, 212 P.3d 413, cert. quashed, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182.

Statement made after arrest. — Where the defendant was arrested for aggravated stalking; during booking, the defendant became upset and agitated and started cursing the victim and what the victim had done to the defendant; and in response to the police officer’s statement to the defendant to calm down and forget the victim, the defendant told the officer that the next time the police fingerprinted the defendant it would be for murder; the officer had not read the defendant’s Miranda rights to the defendant; prior to the admission of the defendant’s statement into evidence, the victim and the victim’s friends testified that the defendant had threatened the victim and had engaged in a pattern of threatening behavior toward the victim; the police officers who had talked to the defendant prior to the defendant’s arrest testified that the defendant said that the defendant would make the victim feel the defendant’s pain and that the defendant would take care of the victim; and during the defendant’s testimony, the defendant admitted to all of the essential elements of aggravated stalking, the admission of the defendant’s statement into evidence was harmless error. State v. Smile, 2009-NMCA-064, 146 N.M. 525, 212 P.3d 413, cert. quashed, 2010-NMCERT-006, 148 N.M. 584, 241 P.3d 182.

Defendant not in custody when questioned. — Where the defendant was a passenger on a commercial bus; as part of a systematic search at a checkpoint, a dog trained to detect odors alerted to a bag marked with a tag number; no one on the bus claimed the bag; the police officers opened the bag and found bundles containing marijuana; the defendant was the only passenger who did not present a baggage ticket stub; when questioned on the bus, the defendant was sweating, shied away from the officer, and gave evasive answers; the bus company list matched the tag on the bag with the seat number that was occupied by the defendant; the officers asked the defendant to exit the bus, to empty his pockets, and to take off his shoes for safety reasons; officers found the ticket stub for the bag in the defendant’s shoe; and the defendant then admitted that the drugs were his, the defendant was not in custody at the time the officer questioned him so as to invoke the defendant’s right to Miranda warnings under the fifth amendment. State v. Munoz, 2008-NMCA-090, 144 N.M. 350, 187 P.3d 696, cert. quashed, 2009-NMCERT-009, 147 N.M. 423, 224 P.3d 650.

Defendant was not in custody. — Where defendant called police to help locate defendant’s two-year old child, police spoke with defendant while defendant was with a friend in the friend’s home; defendant agreed, at the officer’s request, to go to the police station; the friend drove defendant to the police station where defendant waited, unattended, in an employee area and where defendant was permitted to nap and was offered food and drink; defendant was never placed in a locked or secured room, handcuffed or otherwise restrained; defendant was not forced, pressured, threatened or confronted with evidence of defendant’s guilt; defendant was forthcoming with information, wanted to talk to the police, and was not advised that defendant was under arrest or told that defendant could not leave; defendant never informed the officers that defendant wanted to leave, that defendant was tired or that defendant did not want to give a statement; and a police officer gave defendant a ride back to defendant’s friend’s house and no arrest was made, defendant was not in custody and the trial court did not err in denying defendant’s motion to suppress oral statements defendant made to police officers concerning defendant’s negligently permitting child abuse that resulted in the death of defendant’s child. State v. Vasquez, 2010-NMCA-041, 148 N.M. 202, 232 P.3d 438.

Handcuffed probationer was not in custody. — Where defendant was on supervised probation; the probation officer, who was conducting routine home visits, added defendant to the list of visits because defendant had tested positive for drugs; the probation officer and a drug task force officer knocked on defendant’s door and saw defendant look out a window; defendant did not promptly open the door; after a while, defendant’s spouse opened the door; defendant was locked in the bathroom and refused to come out; the officers saw a known felon and a fellow probationer leave through the back door; when defendant came out of the bathroom, the officers searched defendant and found a large amount of cash on defendant’s person; defendant was handcuffed for officer safety; the officers told defendant that defendant was not under arrest; the officers did not read defendant’s Miranda rights to defendant; defendant asked to talk privately to the probation officer to explain things and led the probation officer into the laundry room; the probation officer told defendant that the officers would search the house and asked defendant if there was anything in the house that defendant was not supposed to have; defendant told the officer that defendant did have something and showed the probation officer where defendant had hidden drugs; and at trial, defendant moved to suppress all statements defendant made while handcuffed and the evidence seized as a result of those statements, defendant was not in custody or formally arrested for Fifth Amendment purposes when defendant answered the probation officer’s questions and showed the probation officer the drugs. State v. Hermosillo, 2014-NMCA-102, cert. denied, 2014-NMCERT-009.

Custodial interrogation. — Where defendant initiated contact with police officers and voluntarily agreed to accompany them to the district attorney’s office for an interview regarding the murder of defendant’s friend; the officers handcuffed defendant and transported defendant in a marked police car to the district attorney’s office; defendant was not placed in physical restraints during the interview; defendant was escorted at all times while at the district attorney’s office, including smoke breaks outside the building; defendant was interrogated in a small room with the door closed and with two officers present at all times; the questioning officer accused defendant of murdering the victim, confronted defendant with evidence of guilt, and repeatedly directed defendant to confess; Miranda warnings were not given to defendant at any point during the interrogation; and the officers never informed defendant that defendant was not under arrest, that defendant was free to leave the room, or that defendant could terminate the interview at any time, defendant was subject to a custodial interrogation. State v. Olivas, 2011-NMCA-030, 149 N.M. 498, 252 P.3d 722, cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520.

Where defendant, who interrupted police interview of a witness at the scene of a motor vehicle accident in which defendant was involved, was physically escorted by a police officer to a police vehicle, told by the police officer that he would be arrested for obstruction if he kept talking to the witness, placed in the back seat of the police vehicle with the doors closed and locked, and later questioned while he was in the back of the police vehicle, the questioning constituted a custodial interrogation. State v. Snell, 2007-NMCA-113, 142 N.M. 452, 166 P.3d 1106, cert. quashed, 2008-NMCERT-004, 144 N.M. 49, 183 P.3d 934.

Public safety exception to Miranda. — Where defendant was placed in custody after having been found trying to start a scooter with an ignition that appeared to be tampered with, which indicated to the officers that the scooter may have been stolen, and after officers received notification through the national crime information center that defendant had two outstanding felony warrants for his arrest, and where, prior to being advised of his Miranda rights, an officer asked defendant, "Is there anything on your person that I should know about?", to which defendant responded "I have meth", defendant was subject to custodial interrogation because the question was reasonably likely to elicit an incriminating response from defendant. Although defendant's right to be instructed under Miranda attached, the public safety exception applies because the question was not asked solely to elicit incriminating testimony but was asked in the interest of officer safety. The potential for defendant having objects on his person that threatened officer safety outweighed the need for the prophylactic rule protecting the fifth amendment's privilege against self-incrimination. State v. Widmer, 2020-NMSC-007, rev'g 2018-NMCA-035, 419 P.3d 714.

Custodial interrogation under Miranda. — Where police were dispatched to a Walgreen’s after receiving an anonymous tip reporting two individuals in the Walgreen’s parking lot trying to start a moped that appeared to be tampered with, and where officers found defendant trying to start a moped that had a damaged ignition, which indicated that it may have been stolen, and where officers detained defendant, placed him in handcuffs, and directed him to sit near the sidewalk, and where one officer, in the process of searching defendant, asked defendant whether he had anything on him that the officer should know about, leading defendant to respond that he had some methamphetamine, defendant was in custody for purposes of Miranda, because he was restrained to the degree normally associated with arrest, and was subject to interrogation under Miranda, because the officer’s question under the circumstances was likely to elicit an incriminating response; the district court erred in denying defendant’s motion to suppress his statements to police, because when a defendant is subject to custodial interrogation without Miranda warnings, any responses made to police during the course of the custodial interrogation are presumed compelled and must be excluded from evidence. State v. Widmer, 2018-NMCA-035, rev'd by 2020-NMSC-007.

Police officer safety exception. — The police officer safety exception to the Miranda rule allows arresting officers to ask a defendant questions necessary to secure their own safety or the safety of the public when there is an objective, immediate threat to police officer safety or to the safety of the public. State v. Widmer, 2018-NMCA-035, rev'd by 2020-NMSC-007.

Police officer safety exception inapplicable. — Where police were dispatched to a Walgreen’s after receiving an anonymous tip reporting two individuals in the Walgreen’s parking lot trying to start a moped that appeared to be tampered with, and where officers found defendant trying to start a moped that had a damaged ignition, which indicated that it may have been stolen, and where officers detained defendant, placed him in handcuffs, and directed him to sit near the sidewalk, and where one officer, in the process of searching defendant, asked defendant whether he had anything on him that the officer should know about, leading defendant to respond that he had some methamphetamine, defendant was subject to custodial interrogation without Miranda warnings and the police officer safety exception did not apply, because the officers expressed no concern of any kind that anything at the scene or defendant’s conduct posed a danger to their safety. The district court erred in denying defendant’s motion to suppress his incriminating statement, and the error was not harmless because defendant’s statement that he had methamphetamine was the state’s best evidence and there was a possibility that it affected the verdict. State v. Widmer, 2018-NMCA-035, rev'd by 2020-NMSC-007.

Midstream Miranda warnings are ineffective in informing a suspect of his or her constitutional rights. — Where defendant, a juvenile probationer, arrived at his probation office with his parents and voluntarily stated that he wanted to turn himself in for shooting and killing two people, and where his probation officer escorted defendant to a supervisor's office and talked to defendant until police arrived, but failed to advise defendant of his Miranda rights or his right to remain silent under 32A-2-14 NMSA 1978, and where police transported defendant to the Silver City police department where defendant proceeded to give a full statement regarding the murders without being advised of his constitutional rights, and where defendant was subsequently taken to an interview room where he was read his Miranda warnings by the case agent assigned to the murder investigation and was instructed to sign a written waiver of rights, which defendant and his mother signed, and where defendant proceeded to give a second statement to police which included the same content as the first statement he gave to the police, the district court did not err in suppressing the post-Miranda statement, because the midstream Miranda warning was ineffective in informing defendant of his Miranda rights while he was in custodial interrogation; the first and second police interviews were effectively continuous and the officer did not remedy the initial failure to warn by informing defendant that his first statement could not be used against him at trial. State v. Filemon V., 2018-NMSC-011.

Statements given prior to custodial interrogation. — Where defendant, prior to interview given to district attorney and police chief in office where she worked, was told she did not have to say anything, but where she voluntarily disclosed that she knew decedent and had been with him shortly before he was found by police, and after which disclosure she was immediately given her Miranda warnings, defendant was not subject to custodial interrogation prior to her disclosure and therefore was not entitled to Miranda warnings prior to time they were given. State v. McLam, 1970-NMCA-129, 82 N.M. 242, 478 P.2d 570.

Where defendant talked with police officers briefly prior to receiving any warning as to his rights, but where at this stage he was disclaiming knowledge of what had happened to the victim; was expressing a desire and willingness to assist the police; was not being accused by the police of any wrong; and was not in custody, and where immediately upon arrival at the police station, and prior to being questioned, he was advised of rights, trial court did err in refusing to suppress statements made to police by defendant. State v. Webb, 1970-NMCA-055, 81 N.M. 508, 469 P.2d 153.

Where appellant had neither been placed under arrest nor in any way detained when he volunteered the statement, and it was made in answer to a question concerning what occurred and can be described as an answer to a general question of a person who knew something of what transpired as a part of the fact-finding process, this is not prohibited by Miranda. State v. Lopez, 1968-NMSC-092, 79 N.M. 282, 442 P.2d 594.

Where officer was in a fact-finding process when the question was asked and the incriminating statements made by appellant were voluntary, they were made before any type of custodial interrogation, within the meaning of Miranda, could be said to have begun. State v. Chambers, 1972-NMSC-069, 84 N.M. 309, 502 P.2d 999.

Admission of the statement by defendant did not violate his privilege against self-incrimination, where the remark by defendant was completely uncoerced, and was not made in connection with any interrogation of him and it was voluntarily made in response to a remark made by the officer, even where remark by the officer might have suggested some expected response, but was not put as a question to defendant, and did not suggest that the officer contemplated any such response as was made by defendant. State v. Smith, 1969-NMCA-016, 80 N.M. 126, 452 P.2d 195.

Where appellant had been neither placed under arrest nor in any way detained when he volunteered the incriminating statement, and it was made in answer to a question concerning what occurred and can be described as an answer to a general question of a person who knew something of what transpired as a part of the fact-finding process, the statement is not prohibited by Miranda. State v. Chambers, 1972-NMSC-069, 84 N.M. 309, 502 P.2d 999.

Where defendant is not in custody, nor under indictment nor being interrogated, the advisory system has not begun to operate against the defendant so as to require that he be informed of his right to remain silent. State v. Tapia, 1970-NMCA-037, 81 N.M. 365, 467 P.2d 31.

Right against self-incrimination must involve an element of coercion since the clause provides that a person shall not be compelled to give evidence against himself; where defendant's statements were obtained in a manner indicating that they were given voluntarily within the meaning of fundamental fairness, then the deterrence of over-zealous and unlawful police activity would not be served by their exclusion. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Incriminating statements were not involuntary where there was no evidence of coercive police activity. — Where defendant was charged with multiple offenses related to the death of his infant daughter, and where, after his arrest, defendant signed an acknowledgment and waiver of his rights to remain silent, to have an attorney present, and to stop the interview at any time, and where defendant argued that his incriminating statements to law enforcement during his interview at the police station should have been suppressed because his statements were coerced and involuntary because he was functioning under the extreme mental stress of having just witnessed the infant die, but never argued that his statements were induced by promise or threat or otherwise coerced by the police, defendant's statements were not involuntary and defendant's right against self-incrimination was not violated, because a finding of involuntariness must be based on some evidence that the police used fear, coercion, hope of reward, or some other improper inducement. State v. Galindo, 2018-NMSC-021.

Involuntary confession. — Promises of leniency on the part of police can be coercive and may render a defendant’s subsequent statement involuntary. State v. Talayumptewa, 2015-NMCA-008.

Burden on the state. — On a claim that the police coerced a statement from defendant, the prosecution bears the burden of proving by a preponderance of the evidence that a defendant’s statement was voluntary, that it was not extracted from an accused through fear, coercion, hope of reward, or other improper inducements, and an appellate court reviews the entire record and the circumstances under which the statement or confession was made in order to make an independent determination of whether a defendant’s confession was voluntary. State v. Talayumptewa, 2015-NMCA-008.

Implied promises of leniency. — Where officers made numerous implied promises of leniency to defendant, including promises of reduced charges and less prison time, inducing defendant to make incriminatory statements, the district court did not err in finding the statements involuntary and in suppressing the evidence. State v. Talayumptewa, 2015-NMCA-008.

Voluntary statements admissible. — Admission of statements made by defendant while in custody after he had been advised of right not to answer questions and had made no request to have counsel is not constitutionally impermissible and does not constitute error on review. State v. Hall, 1967-NMSC-263, 78 N.M. 564, 434 P.2d 386.

Evidence of nonverbal conduct during interrogation did not violate right against self-incrimination. — During a portion of defendant's interrogation for the murder of a police officer, where defendant was left alone in the interrogation room and video surveillance recorded defendant making hand gestures in the shape of a gun, the admission of the evidence of nonverbal conduct did not violate defendant's fifth amendment privilege against self-incrimination, because the muted video depicted defendant after he had been Mirandized and defendant's voluntary gestures cannot be said to have been compelled. State v. Romero, 2019-NMSC-007.

Time at which Miranda warnings should be given. — Defendant's claim that he should have been given the Miranda warnings immediately prior to selling the heroin to informer was without merit since defendant was neither in custody, under indictment nor being interrogated. His freedom of action had not been interfered with in any way, nor had the adversary system begun to operate against him. State v. Maes, 1970-NMCA-053, 81 N.M. 550, 469 P.2d 529, cert. denied, 81 N.M. 588, 470 P.2d 309.

Incriminating statements admitted. — Where there is no evidence that an officer knew or should have known that his simple statement, "Is he the one?" made to a fellow officer in the presence of the defendant, would result in defendant making incriminating statements, and there is no evidence of coercion or interrogation and no indication that defendant perceived that he was being interrogated, the trial court properly refused to suppress defendant's statements. State v. Edwards, 1981-NMCA-119, 97 N.M. 141, 637 P.2d 572, cert. denied, 97 N.M. 621, 642 P.2d 607.

Statements made in taped interview. — Where defendant drove a pickup toward a group of children who were trick-or-treating on Halloween; the chaperone pushed the children out of the way but was struck and killed; defendant stopped and then left the scene of the accident; defendant was arrested; the arresting officer read defendant’s Miranda rights and told defendant that defendant’s interview would be recorded; at trial, defendant made a general objection to playing the interview on the ground that the evidence should be introduced through live testimony; the interview revealed that defendant had prior convictions for driving while intoxicated, the district court did not err in denying defendant’s motion for a mistrial because defendant’s objection was not sufficiently specific to elicit a fair ruling as to the admission of the portion of the interview to which defendant objected and the evidence of defendant’s guilt was overwhelming and there was no probability that defendant was convicted because of what the jury heard about defendant’s prior convictions. State v. Melendrez, 2014-NMCA-062, cert. denied, 2014-NMCERT-006.

C. RIGHT TO REMAIN SILENT.

Prosecutorial misconduct. — The prosecutor’s questions on cross-examination of the defendant and the prosecutor’s closing argument to the jury focused on the defendant’s failure to inform the investigating officer about exculpatory information that the defendant presented at trial, and which was inconsistent with the defendant’s statements to the officer, were comments on the defendant’s silence and constituted fundamental error. State v. Pacheco, 2007-NMCA-140, 142 N.M. 773, 170 P.3d 1011, cert. denied, 2007-NMCERT-010, 143 N.M. 73, 172 P.3d 1285.

Prosecutor's comments on defendant's courtroom demeanor was improper. — Where defendant was tried before a jury on charges of criminal sexual penetration in the first degree, kidnapping in the first degree, armed robbery, aggravated burglary and criminal sexual contact, and where during closing argument the prosecutor commented on defendant's courtroom demeanor while the victim was testifying, claiming that defendant's failure to look at the victim was evidence of defendant's guilt, the district court erred in overruling defense counsel's objection and in denying defense counsel's motion for a mistrial because the closing argument had no purpose other than to invite the jury to draw an adverse conclusion from defendant's failure to testify and explain why he would not look at the victim as she testified. Moreover, the argument was not brief and isolated because the prosecutor repeated the improper comment after the district judge overruled defense counsel's objection, and the state failed to meet its burden in demonstrating that there was no reasonable probability that the comment on defendant's right to silence affected the jury's verdict. State v. Sena, 2020-NMSC-011, rev'g in part 2018-NMCA-037, 419 P.3d 1240.

Comment by expert. — A DNA expert's comment that "If I were a defendant, and I were falsely accused as being the source of biological evidence, I would want to continue testing until I found the probe that would prove the exclusion" was not an improper comment on defendant's right to remain silent. State v. Peters, 1997-NMCA-084, 123 N.M. 667, 944 P.2d 896, cert. denied, 123 N.M. 446, 942 P.2d 189.

Comment by state differs in effect from comment by witness. — Where the prosecutor comments on or inquires about the defendant's silence, such a reference can have an intolerable prejudicial impact and may require reversal under the "plain error" rule of the rules of evidence. Any reference to the defendant's silence by the state, if it lacks significant probative value, constitutes plain error and as such it would require reversal even if the defendant fails to timely object. However, where a witness refers to the defendant's silence, the defendant must object to this testimony in order to preserve the error. State v. Baca, 1976-NMSC-015, 89 N.M. 204, 549 P.2d 282.

The district court did not abuse its discretion in denying defendant's motion for a mistrial based on a witness's comment on his post-Miranda silence. — Where defendant was convicted of one count of possession of a controlled substance (methamphetamine), and where defendant argued that the district court erred in denying his motion for a mistrial based on a comment on his post-Miranda silence made by the arresting officer during cross-examination, the district court did not abuse its discretion in denying defendant's motion for a mistrial, because the prosecutor did not elicit the comment at issue, rather the witness's comment on defendant's silence was elicited by defense counsel during cross-examination of the witness, and defendant did not object at the time the statement was made, only moving for a mistrial when the court brought the statement to his attention. Moreover, the district court gave a curative instruction, which was adequate to remedy any prejudice to defendant. State v. Dirickson, 2024-NMCA-040, cert. denied.

Burden on state to prove that error did not contribute to verdict. — When there is a reasonable possibility that prosecutor's inappropriate remark on defendant's exercise of his right to refuse to testify might have contributed to the conviction, the state, as beneficiary of that constitutional infringement, must prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. State v. Martin, 1972-NMCA-081, 84 N.M. 27, 498 P.2d 1370.

Comment by prosecution on accused's failure to testify at trial is reversible error. Gonzales v. State, 1980-NMSC-070, 94 N.M. 495, 612 P.2d 1306.

Comment on failure to testify found not to require reversal. — Where defendant did not object to the court's instruction regarding defendant's right to not testify and the district attorney's comment on defendant's failure to take the stand in his own behalf closely followed the initial clause of the court's instruction, and the trial court firmly admonished the jury to attach no significance to the district attorney's remark and the jury stated that it would do so, then, under these circumstances, if the district attorney's comment was error, it did not amount to a violation of defendant's constitutional rights and does not require a reversal. State v. Leyba, 1969-NMCA-030, 80 N.M. 190, 453 P.2d 211, cert. denied, 80 N.M. 198, 453 P.2d 219.

No impermissible use made of defendant’s silence when prosecutor commented on defendant’s willingness to talk to officers. — In defendant’s trial for possession of child pornography, where defense counsel mentioned in her opening statement that defendant refused to talk to police without a lawyer, and where the prosecutor asked the investigating officer if defendant had been willing to talk to the officers, there was no unconstitutional, impermissible use made of defendant’s silence, because defense counsel invited error by commenting on defendant’s exercise of his right to remain silent, and after the prosecutor’s question, there was an immediate objection that was sustained, the prosecutor was admonished not to mention defendant’s silence again, the prosecutor complied, and the jury was instructed to disregard the question and answer. State v. Adamo, 2018-NMCA-013, cert. denied.

Comment on silence. — In trial of defendant for felony murder, prosecutor's comment to jury on defendant's failure to assert his claim of self-defense during pre-arrest and post-Miranda periods, to which defendant did not object, was not fundamental error where the comment did not directly call on the jury to infer guilt from defendant's silence because the prosecution offered evidence that was inconsistent with self-defense. State v. DeGraff, 2006-NMSC-011, 139 N.M. 211, 131 P.3d 61.

The State impermissibly commented on defendant’s right to silence. — Where defendant was tried for first-degree murder for the killing of his daughter’s fiancé, and where defendant’s theory of the case was that the police failed to adequately investigate several leads, including the possibility that another individual who had previously stabbed the victim had also previously stolen defendant’s gun and used it to shoot the victim, and where, at trial, the prosecutor asked defendant, during cross-examination, “When did you tell the police your gun was stolen?” and during closing arguments, argued that defendant never told law enforcement that his gun was stolen, defendant’s constitutional right against self-incrimination was violated, because the state’s questions and comments impermissibly invited and encouraged the jury to infer guilt based on defendant’s pretrial silence concerning the theft of the gun. Moreover, there was a reasonable possibility that the state’s impermissible comments on defendant’s silence impacted the jury’s verdict, and therefore the error was not harmless. State v. Martinez, 2026-NMCA-034, cert. denied.

Fundamental error to comment on defendant’s invocation of his right to counsel. — In defendant’s first-degree murder trial, where the prosecutor, without objection, elicited testimony from the investigating officer that defendant had invoked his right to counsel, and as a result the investigating officer was unable to question defendant further, the prosecutor’s questioning was an impermissible comment on defendant’s right to remain silent and this error rose to the level of fundamental error, because the comment on defendant’s right to remain silent was highly prejudicial, there was no probative value to the state’s questions, and the evidence of defendant’s guilt was not so overwhelming as to overcome the prejudicial impact of the prosecutor’s comments on defendant’s exercise of his constitutional rights. State v. McDowell, 2018-NMSC-008.

The state's comment on defendant's exercise of his right to counsel and right to remain silent as proof of defendant's state of mind resulted in fundamental error. — Where defendant was charged with perjury based on his testimony in a separate criminal case for intentional child abuse resulting in the death of his two-year-old son, and where at trial, the prosecutor elicited testimony and advanced argument about the fact that, while in custody on the child abuse case, defendant invoked his right to counsel instead of answering officers' accusatory questions as proof that defendant's mental state did not prevent him from knowingly making a false statement, defendant's constitutional rights were violated because due process protects defendant's post-Miranda silence regardless of whether the state utilized this silence as substantive evidence of guilt or to impeach an exculpatory explanation given by defendant at trial. State v. Soto, 2026-NMCA-058, cert. denied.

Prosecution's questions on defendant's post-arrest silence not necessarily reversible error. — Where prosecution is permitted to ask questions involving defendant's post-arrest silence, this will not constitute reversible error when these questions logically ensued and were invited by defendant's voluntary testimony and were not directed at post-arrest silence. State v. Molina, 1984-NMSC-038, 101 N.M. 146, 679 P.2d 814.

State's comment on defendant's silence when asked for his identification did not violate his constitutional right to remain silent. State v. Baca, 1990-NMCA-123, 111 N.M. 270, 804 P.2d 1089, cert. denied, 111 N.M. 164, 803 P.2d 253.

The prosecutor violated defendant's constitutional rights by commenting on defendant's post-arrest silence, but the error was harmless. — Defendant's constitutional right to remain silent was violated when the prosecutor, during opening statement of defendant's trial for second-degree murder, directly commented on defendant's exercise of his right to remain silent after arrest, but the constitutional error was harmless, because the prosecutor's comment was an isolated remark at the beginning of trial that, after admonishment by the district court, was not repeated or emphasized, and in this case where the only material issue in this case was whether defendant acted in response to sufficient provocation, the jury could not reasonably have inferred that defendant's silence was evidence that he was hiding the truth or buying time to invent a false story of provocation because defendant spoke to police before invoking his right to remain silent and his initial statements were consistent with his trial testimony and defendant's testimony, even if believed, could not establish sufficient provocation as a matter of law. Under the circumstances of this case, there is not a reasonable possibility that the prosecutor's comment on silence affected the jury's verdict. State v. Lobato-Rodriguez, 2024-NMSC-014, rev'g A-1-CA-39409, mem. op. (N.M. Ct. App. Mar. 9, 2022) (nonprecedential).

Prosecutor's comments on and use of defendant's pre-arrest silence violated defendant's fifth amendment rights and constituted fundamental error. — Where defendant was charged with numerous counts of criminal sexual penetration of a minor (CSPM), one count of attempt to commit CSPM, and one count of intimidation of a witness, and where, at trial, the prosecutor, during every phase of the proceeding, in opening statement, during direct examination of the detective, while cross-examining defendant, during his closing argument, and finally in rebuttal, commented on defendant's invocation of his fifth amendment right to remain silent during his voluntary, pre-arrest interview with the investigating detective, the prosecutor's comments proactively utilized defendant's invocation of his right to remain silent as indicium of his guilt, and therefore violated the fifth amendment; the prosecutor's reliance upon defendant's invoked silence, and the implication the prosecutor urged the jury to draw therefrom, were distinctly prejudicial and warrant a determination of fundamental error. State v. Costillo, 2020-NMCA-051.

Objections by prosecutor not construed as comment on failure to testify. — Where although the statements of the prosecutor in making his objections might possibly have been construed as suggesting that it was for the defendant to take the stand and make the explanations, the court was of the opinion that considering the time and the manner in which the statements came into the case they could not reasonably be construed as comments to the jury on defendant's failure to take the stand and testify on his own behalf. State v. Lindsey, 1969-NMCA-121, 81 N.M. 173, 464 P.2d 903, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970), cert. denied, 398 U.S. 904, 90 S. Ct. 1692, 26 L. Ed. 2d 62 (1970).

Silent defendant cannot complain of unfavorable inferences by jury. — If the jury feels that the facts are strong enough to call upon the defendant to offer explanatory evidence to counter them, and he prefers not to do so in the exercise of a constitutional right and privilege accorded him, he cannot justly complain if the jury draws inferences unfavorable to him under the circumstances. State v. Compton, 1953-NMSC-036, 57 N.M. 227, 257 P.2d 915.

Where defendant opens door to comment on failure to testify. — Where prosecutor's comments in closing argument on defendant's failure to testify could at best be characterized as indirect, where defendant "opened the door" to such comment in his own closing argument, thus effectively waiving any claim of error, and where trial court instructed jury that no presumption was to be made from defendant's failure to testify, nor should prosecutor's remarks be given weight if contrary to statements of law given them by the court, defendant's constitutional right to remain silent was not violated. State v. Carmona, 1972-NMCA-097, 84 N.M. 119, 500 P.2d 204.

Where remarks of the prosecutor concerning defendant's failure to testify were clearly impermissible and in the absence of waiver would constitute reversible error, and where defendant objected to the prosecutor's remarks, but where, out of the hearing of the jury, the trial court indicated that the prosecutor's remark was invited by defendant's argument, and for unexplained reasons the record failed to include defendant's argument to the jury, court of appeals could not presume error; consequently, no reviewable question was presented. State v. Gunthorpe, 1970-NMCA-027, 81 N.M. 515, 469 P.2d 160, cert. denied, 81 N.M. 588, 470 P.2d 309, cert. denied, 401 U.S. 941, 91 S. Ct. 943, 28 L. Ed. 2d 221 (1971).

Generally, the prosecutor may not properly comment on a defendant's failure to testify, but such comment is permissible where the remarks of the prosecuting attorney were made by way of response to the comments of defendant's counsel concerning defendant's reasons for not testifying, and such remarks by the assistant district attorney were within the realm of reasonable reply to defendant's argument. State v. Ergenbright, 1973-NMSC-024, 84 N.M. 662, 506 P.2d 1209.

Where the prosecutor's comment on defendant's failure to take the stand was made in response to the defendant's own argument, the defendant waived any right which he might have had to claim violation of privilege against compulsory self-incrimination because of the prosecutor's comment. State v. Paris, 1966-NMSC-039, 76 N.M. 291, 414 P.2d 512.

No weight can be given accused's silence. — The constitution forbids prosecutor and court from commenting on an accused's failure to testify on his own behalf. Even where there is no interrogation and the accused merely remains silent, no weight whatever can be given to the accused's silence. State v. Ford, 1969-NMCA-092, 80 N.M. 649, 459 P.2d 353.

Plain error to question defendant's silence. — In defendant's murder trial, there being no basis for a question concerning defendant's silence at the time of his arrest, the district attorney's question about it was "plain error" because it was a comment by the district attorney on defendant's silence. State v. Lara, 1975-NMCA-095, 88 N.M. 233, 539 P.2d 623.

If the prosecution's reference to a defendant's silence at time of arrest lacks significant probative value, the reference to silence has an intolerable prejudicial impact requiring reversal. State v. Lara, 1975-NMCA-095, 88 N.M. 233, 539 P.2d 623.

Remaining silent in the face of an accusation, under a claim of right to do so until counsel can be consulted, is not such a circumstance as will permit admission of testimony of the action of the accused or the content of the accusation. State v. Hatley, 1963-NMSC-128, 72 N.M. 280, 383 P.2d 247.

Prosecutor’s questions about defendant’s refusal to answer drug recognition expert’s questions violated defendant’s Fifth Amendment privilege against self-incrimination and due process. — Where defendant was arrested for DWI after a traffic stop, in which the officer smelled a strong odor of marijuana coming from the vehicle, and where the officer called a drug recognition expert (DRE) to examine defendant after defendant passed a breathalyzer test, but performed poorly on field sobriety tests, and where, at trial, the DRE testified, without objection, that defendant refused to answer his questions, defendant’s Fifth Amendment rights were violated where it was undisputed that at the time defendant was questioned by the DRE, she was under arrest and in police custody, that the DRE gave defendant standard Miranda warnings immediately after introducing himself, that these warnings included advising defendant that she had the right to remain silent and that her silence would not be used against her, and that defendant invoked her right to remain silent; allowing the prosecution to introduce evidence that a defendant exercised their Fifth Amendment right and remained silent in the face of police questioning, after having been assured by a Miranda warning that there would be no penalty for doing so, would be a violation of due process. City of Las Cruces v. Carabajal, 2023-NMCA-036.

Even if brother, not defendant, was asked the question. — The fact that the question regarding silence was asked of the brother and not the defendant makes no difference, since the prejudicial impact was the same. State v. Lara, 1975-NMCA-095, 88 N.M. 233, 539 P.2d 623.

Probative value must be outweighed by danger of unfair prejudice in order to exclude testimony. — Defendant's motion for mistrial was correctly denied when there was no showing that the probative value of testimony mentioning defendant's refusal to talk to interviewing detective was substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury as required by Rule 403, N.M.R. Evid. (see now Rule 11-403 NMRA). State v. Baca, 1976-NMSC-015, 89 N.M. 204, 549 P.2d 282.

Showing prior inconsistent statements is not improper comment on defendant's silence. — Questioning defendant on cross-examination, after he testified that he had found certain stolen property in an abandoned house, about why he had not told the police the same thing when he was arrested was not an improper comment on his silence at the time of arrest. When arrested the defendant did not remain silent, not only stating that he did not know anything, but also offering an explanation which tended to deny his possession, the question was proper cross-examination under Rule 611, N.M.R. Evid. (see now Rule 11-611 NMRA), and was admissible for the purpose of impeaching defendant's credibility by showing prior inconsistent statements. State v. Olguin, 1975-NMCA-132, 88 N.M. 511, 542 P.2d 1201.

Eliciting hearsay statement regarding defendant. — It was improper for the prosecutor to call the defense's alibi witness during the prosecutor's case-in-chief and to attempt to impeach her by eliciting from her a prior statement made to her by the defendant. The defendant's statement was hearsay, and was not admissible as an exception under Rule 11-801 D(1) NMRA, since the defendant had not testified. Its admission into evidence approached a violation of his constitutional right not to testify. State v. Duran, 1988-NMSC-082, 107 N.M. 603, 762 P.2d 890, superseded by rule, State v. Gutierrez, 1998-NMCA-172, 126 N.M. 366, 969 P.2d 970.

Fact that perjury is the crime with which witness might incriminate himself is immaterial. When a witness is asked a question the answer to which could show that he had already committed a crime (perjury at a prior trial or hearing), his refusal to answer is permissible almost by the definition of self-incrimination. State v. Zamora, 1972-NMCA-126, 84 N.M. 245, 501 P.2d 689.

Instruction on defendant's failure to testify. — It has been firmly established that an instruction on defendant's failure to testify is actually a benefit as a caution to the jury and is not erroneous, even though the defendant did not request it. State v. Garcia, 1972-NMCA-142, 84 N.M. 519, 505 P.2d 862, cert. denied, 84 N.M. 512, 505 P.2d 855.

Failure to request jury instruction. — Where defendant never requested an instruction on the voluntariness of certain statements made by him, any error committed by the court in failing to give one was waived. State v. Romero, 1975-NMCA-017, 87 N.M. 279, 532 P.2d 208.

Instruction not error though not requested by defendant. — Where trial court instructed the jury not to draw any inferences against petitioner because of his failure to testify in his own behalf, petitioner's contention that such instruction was error because he did not request such an instruction and that the instruction amounted to a comment concerning defendant's failure to testify was without merit since the instruction was for the benefit of a defendant. Patterson v. State, 1970-NMCA-007, 81 N.M. 210, 465 P.2d 93.

Instruction that state could comment on defendant's failure to take stand was not denial of his constitutional protection against self-incrimination where the court did not make any comment and the prosecution made no comment or argument whatsoever on appellant's silence. State v. James, 1966-NMSC-110, 76 N.M. 376, 415 P.2d 350.

Statute not violative of section. — Statute providing that accused may testify but that his failure to do so would create no presumption against him and that accused was entitled to jury instruction on the subject if his failure to testify was the object of comment or argument did not violate this section. State v. Sandoval, 1955-NMSC-007, 59 N.M. 85, 279 P.2d 850, overruled in part by State v. Miller, 1966-NMSC-041, 76 N.M. 62, 412 P.2d 240.

D. WAIVER OF RIGHT AGAINST SELF-INCRIMINATION.

Waiver of right against self-incrimination. — Where a police officer arrested the defendant for striking his stepson; the officer read the defendant his Miranda rights, which the defendant acknowledged he understood; the defendant did not initially object to answering the officer’s questions; in response to a question about striking his stepson, the defendant stated that he did not think he should answer any further questions without having a lawyer present; the defendant agreed to answer questions about other topics; and later in response to an open-ended question, the defendant volunteered statements about the incident with his stepson, the defendant knowingly, intelligently and voluntarily waived his right against self-incrimination. State v. Bailey, 2008-NMCA-084, 144 N.M. 279, 186 P.3d 908, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677.

Miranda rights can be waived only after the complete Miranda warnings have been given to the defendant. State v. Verdugo, 2007-NMCA-095, 142 N.M. 267, 164 P.3d 966, cert. quashed, 2008-NMCERT-011, 145 N.M. 532, 202 P.3d 125.

Waiver of Miranda rights by juvenile defendant.- Where fifteen-year-old defendant, charged with first-degree murder, aggravated burglary, tampering with evidence, and unlawful taking of a motor vehicle, agreed to be interviewed by a police detective after having been advised of his rights, after being given an opportunity to read, and read aloud from, a standard advice of rights form before signing the form and indicating a desire to speak to the detective, where nothing in the record indicated that defendant lacked sufficient intelligence to understand his rights or the repercussions of waiving those rights or that defendant suffered from any impairment of mental or physical condition, and where there was no coercive or manipulative conduct by law enforcement, the totality of the circumstances indicated that defendant knowingly, intelligently, and voluntarily waived his right against self-incrimination. State v. Rivas, 2017-NMSC-022.

The test of voluntariness of waiver of right against self-incrimination is not dependent upon the utterance of a shibboleth, but rather upon a clear manifestation by words and circumstances of a free and unconstrained choice. State v. Smith, 1969-NMCA-016, 80 N.M. 126, 452 P.2d 195.

Burden on state to establish waiver of rights. — Where upon the first interview defendant expressly declined to make any statement, a second or further interview was not barred, but there was imposed upon the prosecution a "heavy burden" to establish that defendant knowingly and intelligently waived his privilege against self-incrimination and his right to the aid of counsel. State v. Lopez, 1969-NMCA-019, 80 N.M. 130, 452 P.2d 199.

Burden on defendant to show that waiver not understandingly made. — Under Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) the burden is on a defendant to prove his contentions that the waiver of his rights was not intelligently and understandingly made. State v. Beachum, 1967-NMSC-215, 78 N.M. 390, 432 P.2d 101, cert. denied, 392 U.S. 911, 88 S. Ct. 2068, 20 L. Ed. 2d 1369 (1968).

Waiver need not be written. — A voluntary waiver of the right or privilege against self-incrimination need not be reduced to writing and signed by defendant. State v. Smith, 1969-NMCA-016, 80 N.M. 126, 452 P.2d 195.

Determinations of waiver and voluntariness binding on appellate court. — Where the evidence in prosecution for murder substantially supports the preliminary determination by the trial court, that waiver of right against incrimination was voluntary and a determination was made by the jury that the statements were voluntarily made, these determinations are binding upon court of appeals. State v. Smith, 1969-NMCA-016, 80 N.M. 126, 452 P.2d 195.

Where the judge, on record, passed on the voluntariness and admissibility of defendant's statements at a suppression hearing, and submitted the statements to the jury with a charge which complied with UJI Crim. 40.40 (see now UJI 14-5040 NMRA), the defendant's argument that his statements were the product of promises and inducements was to be considered with all the conflicting evidence, and it was not for the appellate court to substitute its own judgment for that of the trier of fact and the trial judge. State v. Ramirez, 1976-NMCA-101, 89 N.M. 635, 556 P.2d 43, overruled by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Transcript found necessary to determine voluntariness of statements. — Where defendant's basic defense was to persuade the jury that certain statements relied on heavily by the state were involuntary, and that the officer who testified about the circumstances of these statements testified differently at trial than at the suppression hearing, a copy of the prior hearing transcript would have been invaluable, and where there were different judges, court reporters and attorneys in the hearing on the motion to suppress, on the motion for a transcript, and at trial, there were no reasonable alternatives to a transcript of the prior hearing. State v. Romero, 1975-NMCA-017, 87 N.M. 279, 532 P.2d 208.

Waiver of rights as result of guilty plea. — Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969) requires that state criminal records show an understanding waiver by a defendant entering a guilty plea of three constitutional rights: (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one's accusers. State v. Guy, 1970-NMCA-080, 81 N.M. 641, 471 P.2d 675.

Plea of guilty, voluntarily made, foreclosed an accused's right to object to the manner in which he was arrested or how the evidence had been obtained against him. The plea was a waiver of all nonjurisdictional defenses, and sentence which followed such a plea of guilty was a result of the plea and not the evidence theretofore obtained. State v. Brewster, 1968-NMSC-035, 78 N.M. 760, 438 P.2d 170.

Where appellant admittedly incriminated himself by his plea of guilty, he could not be heard to complain since by his plea he confessed the charge contained in the information. State v. Daniels, 1968-NMSC-039, 78 N.M. 768, 438 P.2d 512.

By pleading guilty the defendant admitted the acts well pleaded in the charge, waived all defenses other than that the indictment or information charges no offense, and waived the right to trial and the incidents thereof, and the constitutional guarantees with respect to the conduct of criminal prosecutions, including right to jury trial, right to counsel subsequent to guilty plea and right to remain silent. State v. Daniels, 1968-NMSC-039, 78 N.M. 768, 438 P.2d 512.

Defendant, who voluntarily pleaded guilty, was not entitled to a post-conviction hearing under Rule 93, N.M.R. Civ. P. (see now Rule 5-802 NMRA) (only applied to post-conviction motions before September 1, 1975), for the purpose of determining whether or not the state obtained evidence, which warranted the filing of the complaint, as a result of a claimed questioning of him contrary to his constitutional rights to remain silent and to the aid of counsel. State v. Brewster, 1968-NMSC-035, 78 N.M. 760, 438 P.2d 170.

Plea of guilty must be voluntary. — It is fundamental that a plea of guilty must be voluntarily made. If not so made but induced by threats or promises, it is void and subject to collateral attack. State v. Tipton, 1967-NMSC-270, 78 N.M. 600, 435 P.2d 430.

It is a fundamental rule of criminal procedure that a judgment and sentence cannot stand if based upon an involuntary plea of guilty induced by an unkept promise of leniency. A guilty plea induced by either promises or threats which deprive it of the character of a voluntary act is void and subject to collateral attack. To withhold the privilege of withdrawing a guilty plea in order to reassume the position occupied prior to its entry would constitute a denial of due process of law. State v. Ortiz, 1967-NMSC-104, 77 N.M. 751, 427 P.2d 264.

Plea of guilty is binding if made voluntarily after proper advice of counsel and with full understanding of the consequences. State v. Tipton, 1967-NMSC-270, 78 N.M. 600, 435 P.2d 430.

Guilty plea found voluntary. — Defendant who was told by his attorney that if he didn't plead guilty to second-degree murder he would die in gas chamber could not claim on motion for post-conviction relief that his guilty plea was induced by coercion, threats or promise of leniency, because such plea represented a choice between two alternatives and a voluntary selection of a plea to a lesser charge. State v. French, 1970-NMSC-159, 82 N.M. 209, 478 P.2d 537.

Where for six days after his arrest defendant was interrogated from time to time by officials but gave no statement and was not allowed to retain or consult with an attorney, defendant was denied his constitutional right to counsel during the first six days after his arrest. However, the denial of a naked constitutional right does not invalidate all subsequent proceedings nor necessarily prevent an accused from acting voluntarily in such proceedings, and where defendant subsequently retained counsel and pleaded guilty upon his advice, the plea was held to be voluntarily given. Murillo v. Cox, 360 F.2d 29 (10th Cir. 1966).

The fact that alternatives are considered in reaching a decision to plead guilty does not necessarily render the decision involuntary, and where there is substantial evidence that a plea was made voluntarily after proper advice of counsel and with full understanding of the consequences, there is no basis for post-conviction relief. Mondragon v. State, 1972-NMCA-117, 84 N.M. 175, 500 P.2d 999.

Consequences of guilty plea must be understood. — Defendant's claim upon motion for post-conviction relief that trial court failed in its duty to inform him at the arraignment and before accepting his plea of guilty that the maximum possible penalty for second-degree murder was life imprisonment, thereby contributing to his failure to understand the consequences of his plea, was without merit where defendant had been fully advised by competent counsel as to both maximum and minimum penalties which could be imposed upon being adjudged guilty, and where defendant admitted that trial court asked if he understood the charge against him. Burton v. State, 1971-NMSC-028, 82 N.M. 328, 481 P.2d 407.

Failure to object waives right to exclude testimony. — Where no objection was made to the testimony of officer in which he related the content of his remark and defendant's response thereto and defendant had already been advised of his rights to an attorney and to remain silent, even if defendant had a right to have this testimony excluded, he waived such right when he failed to make objection thereto or to raise any question as to its admissibility. State v. Smith, 1969-NMCA-016, 80 N.M. 126, 452 P.2d 195.

Waiver of right to have public defender notified. — Failure of police to comply with 31-15-12 NMSA 1978, requiring that peace officers notify public defender of any person not represented by counsel who was being forcibly detained and charged with a crime, did not infringe upon defendant's rights against self-incrimination where defendant was advised of those rights both at time of arrest and booking, voluntarily acknowledged that he understood them and signed waiver of rights form. State v. Rascon, 1976-NMSC-016, 89 N.M. 254, 550 P.2d 266, rev’g 1975-NMCA-101, 88 N.M. 395, 540 P.2d 875.

Failure to sign written statement does not make oral statements inadmissible. — Where the record shows that defendant was warned of his rights and signed a waiver and that later he refused to sign a written statement and stated that he would wait until an attorney was present before he signed it, the trial court's admission of pretrial oral statements in evidence was not error as the fact that defendant declined to sign a written statement did not make his oral statement inadmissible as a matter of law. State v. Courtright, 1972-NMCA-009, 83 N.M. 474, 493 P.2d 959.

Defendant did not validly waive his Miranda rights. — Where defendant was being investigated regarding allegations of criminal sexual penetration of a minor and criminal sexual contact of a minor, and where, prior to an interview with defendant, the investigating officer advised defendant that he had the right to remain silent, that he had a right to a lawyer, and that if he could not afford a lawyer, one would be provided to him, and where defendant, after he signed a written waiver of these rights, made incriminating statements, the district court committed fundamental error when it admitted the video-recording of defendant's inculpatory statements, because the Miranda warnings that defendant received while in police custody were inadequate in that they did not clearly convey to defendant that he had a right to the presence of counsel prior to, and during, his interview. With an imperfect understanding of his rights, defendant could not have validly waived his Miranda rights. State v. Atencio, 2021-NMCA-061, aff'd in part and rev'd in part by 2024-NMSC-022.

E. CONFESSIONS.

Admissibility of statements made by defendant in a telephone call. — Where a police officer, who was investigating threatening telephone calls and gun shots at a residence, answered a telephone call at the residence; during the telephone conversation, the caller made inculpatory remarks, identified himself as "Roberto" and as the shooter; the caller voluntarily initiated the call, could have and did terminate the call on his own initiative, and was not in any way restricted in his freedom of movement; and the caller was not told that he was speaking to a police officer until near the end of the conversation, and the caller was not in custody, the district court erred in ruling that the statements were inadmissible based on Miranda violations. State v. Hernandez, 2009-NMCA-096, 147 N.M. 1, 216 P.3d 251, cert. denied, 2009-NMCERT-007, 147 N.M. 362, 223 P.3d 359.

Invocation of right to remain silent. — Where police officers asked the defendant if the defendant was willing to talk and the defendant responded by saying that "I ain’t really got too much to say", the defendant did not invoke his right to remain silent and the admission of the defendant’s statements to the police officers did not violate the defendant’s fifth amendment right to remain silent. State v. Perry, 2009-NMCA-052, 146 N.M. 208, 207 P.3d 1185.

Clarification of whether the defendant has invoked the right to remain silent. — Where police officers asked the defendant if the defendant was willing to talk and the defendant responded by saying that "I ain’t really got too much to say", the defendant’s statement did not invoke the defendant’s right to remain silent under the fifth amendment to the United States constitution, and N.M. Const., art. II, § 14 did not require the officers to clarify whether the defendant had invoked the right to remain silent. State v. Perry, 2009-NMCA-052, 146 N.M. 208, 207 P.3d 1185.

Defendant invoked the right to remain silent. — Where a police interrogator advised defendant of defendant’s Miranda rights and defendant acknowledged that defendant understood defendant’s rights; the interrogator asked defendant if defendant wished to answer any questions and defendant replied "Not at the moment. Kind of intoxicated"; the interrogator told defendant that intoxication was not a reason that defendant could not talk to the interrogator, placed a written waiver of rights in front of defendant, and told defendant to sign the waiver if defendant wanted to talk; defendant replied "Like I said, not at the moment"; and the interrogator persisted in questioning defendant until defendant gave an incriminating statement, defendant unequivocally invoked the right to remain silent, mandating that the interrogation immediately cease. State v. King, 2013-NMSC-014, 300 P.3d 732.

Interrogation must end once the right to remain silent is invoked. — Officers must scrupulously honor a suspect’s right to remain silent, once invoked, by ending the interrogation, so in a murder investigation, where the defendant made clear that he wanted the assistance of a lawyer and that he did not have anything to say to the officers, but where the investigating officers, instead of immediately terminating the interrogation, showed the defendant his bible to keep the defendant talking in hopes that he would make incriminating statements, and tried to convince the defendant to waive his rights and tell the officers what happened, the officers violated the defendant’s constitutional rights. State v. Madonda, 2016-NMSC-022.

Corpus delicti rule. — A defendant’s extrajudicial statements may be used to establish the corpus delicti when the prosecution is able to demonstrate the trustworthiness of the confession and introduce some independent evidence of a criminal act. State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315.

Admissibility of confession to establish the corpus delicti. — Where admissible evidence is not available to corroborate a confession, the confession is not admissible and may not be used to establish the corpus delicti necessary for a conviction. State v. Hardy, 2012-NMCA-005, 268 P.3d 1278, cert. quashed, 2012-NMCERT-012, 299 P.3d 422-423.

Where defendant was charged with criminal sexual penetration of a minor; the victim told the victim’s parent and a police officer about the sexual abuse; the victim was not cooperative with the prosecution; the only evidence the state could produce was the hearsay statements of the victim to the victim’s parent and the police officer; and defendant confessed to committing the sexual abuse of the victim; the trial court properly dismissed the case because the state could not use the victim’s hearsay statements to corroborate the confession, there was no admissible evidence to establish the corpus delicti, and defendant could not be convicted unless admissible evidence other than defendant’s confession established the corpus delicti. State v. Hardy, 2012-NMCA-005, 268 P.3d 1278, cert. quashed, 2012-NMCERT-012, 299 P.3d 422-423.

Determination of admissibility of a confession at a preliminary hearing. — The district court should determine at a preliminary hearing whether the state has evidence that supports the essential facts admitted in a defendant’s confession. First, the court assesses whether the confession’s trustworthiness may be established by the state. Second, the court must ensure that the state has evidence that can corroborate the existence of the alleged loss or injury. At the preliminary hearing, the court can use inadmissible evidence to determine the trustworthiness of a confession. Admission of the confession at trial is conditioned upon the state adducing independently admissible evidence that can contribute to establishing the corpus delicti. At the preliminary hearing, the court should determine whether the state can provide admissible evidence supporting the corpus delicti. State v. Hardy, 2012-NMCA-005, 268 P.3d 1278, cert. quashed, 2012-NMCERT-012, 299 P.3d 422-423.

Trustworthiness doctrine. — A defendant’s extrajudicial statement may be used to establish the corpus delicti where the statement is shown to be trustworthy and where there is some independent evidence to confirm the existence of the alleged loss or injury. State v. Weisser, 2007-NMCA-015, 141 N.M. 93, 150 P.3d 1043.

Voluntary confession not violation of section. — When confession was freely and voluntarily made, it follows as a matter of course that appellant was not compelled to testify against himself in violation of this section. State v. Ascarate, 1915-NMSC-088, 21 N.M. 191, 153 P. 1036, writ of error dismissed, 245 U.S. 625, 38 S. Ct. 8, 62 L. Ed. 517 (1917).

Massachusetts rule followed in New Mexico. — New Mexico procedure as to confessions does not follow the New York method; rather, the court of appeals follows the Massachusetts rule, i.e., the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused. State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940, cert. denied, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271.

Judge's comment that voluntariness decided by jury. — Where after a hearing, the judge concluded that the defendant's incriminating statement met legal requirements for admissibility and his findings on disputed issues of fact are also ascertainable from the record, the trial court's statement that the issue of voluntariness was entirely up to the jury is no more than a comment that, having determined the statement was obtained in accordance with legal requirements, and was admissible as a matter of law, the final decision in connection with the statement was for the jury and as such was not constitutionally inadequate. State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940, cert. denied, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271.

Involuntary confession not to be heard by jury. — A confession by the defendant found to be involuntary by the trial judge is not to be heard by the jury which determines his guilt or innocence. State v. Soliz, 1968-NMSC-101, 79 N.M. 263, 442 P.2d 575.

Right to hearing on voluntariness of confession. — Where approximately 47 days before trial defendant filed a motion to suppress all statements made by the defendant relating to the offenses charged in the indictment, and where on the day of trial defendant renewed his motion to suppress, the trial court erred in not holding a hearing out of the presence of the jury in order to determine the voluntariness of the confession, since defendant had the constitutional right at some stage in the proceeding to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness; a determination uninfluenced by the truth or falsity of the confession. State v. LaCour, 1973-NMCA-022, 84 N.M. 665, 506 P.2d 1212.

Defendant alleging duress in the taking of his confession has a constitutional right to have a fair hearing and a reliable determination on the issue of voluntariness uninfluenced by the truth or falsity of that confession. State v. Gurule, 1972-NMCA-104, 84 N.M. 142, 500 P.2d 427.

A prima facie case for admission of a confession is made where the officers testify that the confession was obtained without threat or coercion or promise of immunity. State v. Watson, 1971-NMCA-104, 82 N.M. 769, 487 P.2d 197.

Error not to hear defendant's statement on integrity of confession. — Any time a defendant makes it known he has something to say touching the integrity of a confession claimed to have been made by him, however incredible it may appear to the trial court, the judge must hear him. He has no choice. In declining to do so, the court commits reversible error. State v. Armijo, 1958-NMSC-108, 64 N.M. 431, 329 P.2d 785.

Appellate court must accept determinations by triers of fact. — It is for the trial court in the preliminary inquiry out of the presence of the jury, and for the jury ultimately under proper instructions, to determine the question of the voluntariness of confessions, and the court of appeals must accept these determinations by the triers of the fact, unless the evidence is so lacking in support of these determinations as to work fundamental unfairness. State v. Fagan, 1967-NMCA-032, 78 N.M. 618, 435 P.2d 771.

Confession made prior to appearance before magistrate. — Defendant's confession having been held to be voluntary by the trial court, and the evidence at the motion hearing not requiring a contrary conclusion, the fact that the statement was made prior to defendant's appearance before a magistrate did not require that the statement be suppressed. State v. Rael, 1970-NMCA-101, 81 N.M. 791, 474 P.2d 83.

Having determined that it was voluntary, the fact that appellant was not taken forthwith before a magistrate cannot be held to make the confession inadmissible. State v. Gray, 1969-NMCA-102, 80 N.M. 751, 461 P.2d 233.

Advice of counsel not essential. — A confession by a defendant at a time he is in custody and does not have counsel to advise him is not ipso facto involuntary and inadmissible. Pece v. Cox, 354 F.2d 913 (10th Cir. 1965), cert. denied, 384 U.S. 1020, 86 S. Ct. 1984, 16 L. Ed. 2d 1044 (1966).

A voluntary confession given before counsel was obtained is admissible. State v. Dena, 1923-NMSC-033, 28 N.M. 479, 214 P. 583.

Promise of lesser punishment. — If the accused confesses because he was induced by the promise that his punishment will not be so severe as it otherwise might be, the confession is not admissible because it was not voluntary. State v. Watson, 1971-NMCA-104, 82 N.M. 769, 487 P.2d 197.

Voluntary statements obtained in violation of Miranda were admissible for impeachment purposes. — Where detectives’ statements to defendant during a custodial interrogation implied that if defendant confessed, the detectives were not only willing, based on their supposed desire to help defendant, but were also able to help, due to their “relationship” with the court, the judge, and the prosecutor, defendant could have inferred that the detectives were making a promise of leniency, but any implied promises did not overwhelm defendant’s will or impair his capacity for self-determination such that defendant’s statements were involuntary, and although the statements were obtained in violation of Miranda, because defendant clearly invoked his right to remain silent, the statements, although not admissible in the prosecution’s case in chief, could still be used to impeach defendant’s testimony at trial. State v. Baroz, 2017-NMSC-030.

Inducement need not be made by a person in position of authority to be unlawful. — Where defendant in larceny case had a private conversation with a former district attorney after his arrest, the former district attorney was a person of some standing in the community, who had been seen on the day of the crime by defendant with the victim of the larceny, and where defendant's mother had told her son to go to this man if he ever got into any trouble because he would help him out, defendant might reasonably have considered the promissor as a person able to afford him aid, and his confession, consisting of the act of showing the police where the stolen property was hidden and the statements made to the police after emerging from the conference room and on route to the cache site, was unlawfully induced, involuntary and, therefore, inadmissible. State v. Benavidez, 1975-NMCA-013, 87 N.M. 223, 531 P.2d 957.

A confession is presumed to be given by mentally competent person and the burden is on defendant to show that defendant was not mentally competent. State v. Lujan, 1975-NMSC-017, 87 N.M. 400, 534 P.2d 1112, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 400.

Test to determine mental competence to make voluntary confession. — For a defendant to make a valid confession, he must have had sufficient mental capacity at the time to be conscious of the physical acts performed by him, to retain them in his memory and to state them with reasonable accuracy. Mere mental instability or temporary lack of faculties only goes to the weight to be given the confession. The test used to determine mental competence to make a voluntary confession is whether the defendant's mental capacities and his actions after the commission of the crime clearly demonstrate that he had sufficient mental capacity at that time to be conscious of what he was doing, to retain memory of his actions and to relate with reasonable accuracy the details of his actions. State v. Lujan, 1975-NMSC-017, 87 N.M. 400, 534 P.2d 1112, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 400.

When sanity hearing required. — An evidentiary hearing on the issue of involuntariness to confess due to insanity is constitutionally required when a defendant requests it or when the defendant attempts to offer proof that he was not mentally competent to make the confession. State v. Lujan, 1975-NMSC-017, 87 N.M. 400, 534 P.2d 1112, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 400.

Where defendant failed to demand evidentiary hearing regarding insanity and did not show that he had evidence to submit on his incompetence to confess, nor was there evidence in the record of coercion, prolonged interrogation or anything which might make the confession involuntary, it was proper for the court to admit the evidence of the confession, along with evidence of the defendant's state of mind at the time of the confession, to allow the jury to decide the weight to be accorded the confession. State v. Lujan, 1975-NMSC-017, 87 N.M. 400, 534 P.2d 1112, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 400.

Failure to object to admission of confession. — Objection to admission of a confession could not be considered if not made in trial court. State v. Layton, 1927-NMSC-010, 32 N.M. 188, 252 P. 997.

No coercion shown. — Where the defendant argued that his confession to the murder of the victim was involuntary because the defendant had only an eighth grade education and that the defendant was intimidated to make the confession out of a fear of death that had been caused by a discussion of the death penalty between the defendant and police officers during the defendant’s interrogation; the defendant had been the one who introduced the prospect of the death penalty for the murder of the victim; and during the discussion, in response to the defendant’s question about what kind of deal the defendant could get, the police officers told the defendant that they would speak to the district attorney on the defendant’s behalf if the defendant made a statement, the trial court properly admitted the defendant’s confession. State v. Barr, 2009-NMSC-024, 146 N.M. 301, 210 P.3d 198.

Confession not coerced. — Where the defendant claimed the defendant’s confession was involuntary because drugs and lack of sleep made the defendant hallucinate during the police interrogation and describe the defendant’s hallucinations rather than the defendant’s memory of reality, the police officers who interrogated the defendant made coercive statements, and the defendant admitted to actions that did not comport exactly with the victim’s manner of death; the record did not support the defendant’s claim that the defendant was describing things that did not exist; there was no indication in the record that the police officers who interrogated the defendant were aware of the defendant’s vulnerable mental state; one police officer said to the defendant "they’re gonna hammer you", "you’re through", and "you’re gonna be treated like a monster in court and you’re never gonna get out of prison"; the medical examiner concluded that a ligature had strangled the victim; and the defendant’s account was ambiguous about how strangulation occurred, the defendant’s confession was voluntary. State v. Evans, 2009-NMSC-027, 146 N.M. 319, 210 P.3d 216.

Confession found voluntary. — Where defendant was arrested for sexual exploitation of children; at the police officer’s request, defendant agreed to go to the police department for an interview; a police officer drove defendant to the police department; defendant was not handcuffed in the police car or in the interview room; although defendant was not placed under arrest, the officer informed defendant of defendant’s Miranda rights; and the officer told defendant that the officer was not going to place defendant in jail that night regardless of what defendant said, that the police might be able to help defendant find treatment if defendant had a problem, and that the officer was the only thing standing between defendant and federal prosecution, under the totality of the circumstances, defendant’s confession was not coerced and was voluntary. State v. Leeson, 2011-NMCA-068, 149 N.M. 823, 255 P.3d 401, cert. denied, 2011-NMCERT-005, 150 N.M. 667, 265 P.3d 718.

Where a child who was almost seventeen years of age confessed to murder while the child was held in a detention center; at the officer’s request, the child agreed to visit with the officers; the officers read the child the child’s Miranda rights, told the child that the interview would stop if the child wanted it to stop, and informed the child about the possible consequences of a conviction of murder; the child acknowledged by a nod of the child’s head the reading of each Miranda right and after the rights were read, stated that the child understood the child’s Miranda rights; the officers, at the child’s request, brought the child’s mother into the interview room before they began questioning the child; during the interview, the child asked if the child could visit with the child’s mother alone; the officers refused the request and the child then asked the child’s mother to leave the room; the officers asked child to explain what happened; the child then confessed to the murder; the interview lasted less than one hour; the child had a lengthy juvenile arrest record, had been read Miranda rights on previous occasions, and on one occasion had refused to speak to authorities without a lawyer; and although a clinical psychologist testified that the child suffered from ADHD, that the child’s primary language was Spanish, that the child was raised in a traditional Latino household that made the child deferential to authority figures, which would enable the officers to convince the child to confess, the child spoke fluent English, never claimed not to understand the questions, and gave detailed, narrative responses to the questions; the officers told the child that the officers could not promise the child anything about a possible sentence or disposition, and after confessing to the murder, the child asked the officers what they thought might happen, the child knowingly and intelligently waived the child’s Miranda rights, voluntarily consented to the interrogation, and voluntarily confessed. State v. Gutierrez, 2011-NMSC-024, 150 N.M. 232, 258 P.3d 1024.

Where defendant was charged with first-degree abuse of a child resulting in death; defendant was interviewed by the police on two occasions within a week; on each occasion, defendant and defendant’s spouse drove to the police department; defendant was familiar with the police personnel because defendant’s spouse worked at the police department; the interviewing officer explicitly told defendant that defendant was not under arrest, defendant was free to leave at any time, and defendant was under no obligation to speak to law enforcement; and at the second interview, in response to the officer’s statement, defendant confessed to suffocating the child, the interview did not implicate defendant’s Miranda rights and the confession did not violate defendant’s right against self-incrimination. State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315.

Where defendant was charged with first-degree abuse of a child resulting in death; defendant was interviewed by the police on two occasions within a week; at the second interview, defendant confessed to suffocating the child; after the first interview, defendant was self-admitted to a medical center for depression and suicidal thoughts; defendant was diagnosed with significant psychological problems and was prescribed an antipsychotic drug; medical staff testified that defendant’s mental state was improving when defendant was self-discharged from the medical center, defendant was insightful into the nature of defendant’s problems, and defendant was not exhibiting any side effects from medication; and the interviewing officer testified that at the second interview, defendant’s responses were coherent and intelligent, defendant’s handwritten letters showed good penmanship and clarity, and defendant did not appear to be under the influence of narcotics, defendant’s confession was voluntary and did not violate defendant’s right against self-incrimination. State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315.

Where defendant and defendant’s spouse accompanied a police officer to the police station for questioning about the death of defendant’s infant child; although defendant and defendant’s spouse were placed in separate interview rooms, they could hear each other and shouted back and forth between the interview rooms; defendant was able to leave the interview room to use the restroom; defendant asked for and received status updates from the officer; defendant was given Miranda warnings in full and signed a waiver of rights form; after the officer had questioned defendant for some time, defendant asserted the right to counsel and the officer ceased questioning defendant and left the room; after defendant had been left in the interview room for approximately one hour, defendant knocked on the door and asked to speak to the officer; defendant told the officer that defendant had changed defendant’s mind about wanting an attorney; the officer reminded defendant that defendant had invoked the right to counsel; and defendant then made an incriminating statement, defendant’s statement was voluntary. State v. Quinones, 2011-NMCA-018, 149 N.M. 294, 248 P.3d 336, cert. denied, 2011-NMCERT-001, 150 N.M. 559, 263 P.3d 901.

Where defendant voluntarily agreed to be interviewed by police officers; Miranda warnings were not given to defendant at any point during the interrogation; although defendant informed the officers that there was an outstanding warrant for defendant’s arrest for an unrelated misdemeanor charge, defendant did not assert that the officers used the warrant to threaten or coerce defendant into giving a statement or that the officers promised defendant leniency on the warrant; and although defendant was fearful during the interrogation and felt pressured to talk, defendant did not assert that the fear or pressure was the result of police misconduct, defendant’s statement was voluntary. State v. Olivas, 2011-NMCA-030, 149 N.M. 498, 252 P.3d 722, cert. denied, 2011-NMCERT-003, 150 N.M. 619, 264 P.3d 520.

Where defendant was questioned late at night, defendant's demeanor as shown on the videotape of his confession indicated that defendant was not too tired to proceed with the interrogation, and defendant did not argue that police officer took advantage of defendant's fatigue or that defendant was not able to understand the officer's questions or think rationally due to his fatigue; where officer told defendant that he would receive treatment if he confessed, but officer did not imply that defendant would get treatment instead of prison time or make promises regarding conviction or sentencing; and where officer referred to physical evidence, but officer did not misrepresent the evidence or affirmatively state that inculpating evidence had been found, defendant's confession at interrogation was voluntary. State v. Lobato, 2006-NMCA-051, 139 N.M. 431, 134 P.3d 122, cert. denied, 2006-NMCERT-005, 139 N.M. 567, 136 P.3d 568.

Where there was no evidence that the circumstances surrounding the arrest, the fact that the defendant had been in jail overnight without arraignment, or the fact that he had no lawyer, in any way rendered his statement involuntary and as the trial court ruled, as a matter of law, that the confession was voluntary before submitting it to the jury under proper instructions requiring the jury to consider any questions concerning whether it was voluntary, defendant's constitutional rights were not abridged. State v. James, 1971-NMCA-156, 83 N.M. 263, 490 P.2d 1236, overruled by State v. Victorian, 1973-NMSC-008, 84 N.M. 491, 505 P.2d 436.

Defendant's claim that his confession was involuntary was without merit, even though defendant agreed to waive his rights only if officers promised not to put him in the same cell with a codefendant, who might kill him, since the answer of the police officer to the effect that such would not be done was a natural one and not phrased in a threatening or otherwise unjustified manner. State v. LeMarr, 1971-NMSC-082, 83 N.M. 18, 487 P.2d 1088.

Where defendant, before giving the confession, was twice advised of his right to make no statement and his right to consult with counsel, by two different officers, and at the suppression hearing the trial court made full inquiry into the voluntariness of the confession and determined that the defendant had knowingly and intelligently waived his right to remain silent, then trial court did not err in admitting into evidence the written confession of the defendant. State v. Baros, 1974-NMCA-127, 87 N.M. 49, 529 P.2d 275, cert. denied, 87 N.M. 47, 529 P.2d 273.

Where the elapsed time of three and one-half hours from arrest to defendant's giving of statement of admission and the absence of counsel during that time did not, under the circumstances of the case, require a holding that the statement was involuntary and therefore should have been suppressed. State v. Rael, 1970-NMCA-101, 81 N.M. 791, 474 P.2d 83.

III. DOUBLE JEOPARDY.

A. IN GENERAL.

Tampering with evidence. — Where defendant shot the victim in the chest in defendant’s vehicle, drove the unconscious victim in the vehicle to an isolated area, shot the victim twice in the head while the victim was still alive, poured gasoline on the victim and lit the victim on fire; defendant gave the vehicle to a friend; and when the friend returned the vehicle, defendant set fire to the vehicle, defendant’s three convictions of tampering with evidence were not based on unitary conduct and did not violate defendant’s right to be free from double jeopardy. State v. Urioste, 2011-NMCA-121, 267 P.3d 820, cert. quashed, 2012-NMCERT-008.

Imposition of civil penalty and subsequent criminal prosecution. — The civil penalty authorized under Section 1-19A-17 NMSA 1978 is remedial and does not constitute punishment for double jeopardy purposes. The imposition of a civil penalty does not bar a subsequent criminal prosecution under the Voter Action Act for the same conduct for which the secretary of state assessed the civil penalty. State v. Block, 2011-NMCA-101, 150 N.M. 598, 263 P.3d 940.

Identical counts and jury instructions. — Where multiple counts of criminal sexual penetration of a minor in the indictment and the counts in the jury instructions were carbon-copy counts of each other, and where the child’s testimony distinguished facts for each count and the defendant admitted to having sexual intercourse with the child on several occasions, there was sufficient evidence from which a jury could find separate incidents of criminal sexual penetration and there was no violation of double jeopardy. State v. Martinez, 2007-NMCA-160, 143 N.M. 96, 173 P.3d 18, cert. denied, 2007-NMCERT-011, 143 N.M. 156, 173 P.3d 763.

Sufficient differentiation between criminal counts. — Where defendant was charged with twenty-six counts involving allegations that he sexually abused his minor step-daughter by perpetrating varying forms of criminal sexual penetration or criminal sexual contact, and where defendant's indictment alleged that he engaged in specific sex acts with his step-daughter during specific, consecutive, six-month intervals, and where no specific form of sexual abuse was alleged to have occurred more than once in any given interval, the district court erred in granting defendant's petition for writ of habeas corpus on the grounds that the multiple convictions for the same sexual acts violate double jeopardy because of the lack of specificity in the indictment. The charges were more than adequately differentiated to avoid the double jeopardy problems associated with unspecific, carbon-copy indictments. State v. Lente, 2019-NMSC-020.

No double jeopardy violation where there were multiple victims and each victim suffered unique and distinct injuries. — Where defendants, owners of a daycare, were each convicted of one count of reckless child abuse resulting in great bodily harm and one count of reckless child abuse resulting in death after failing to remove two one-year-old children under their supervision from a hot SUV following a trip to a park, resulting in the death of one child and life-threatening injuries to the other child, and where defendants claimed that their convictions for reckless child abuse involved unitary conduct and therefore violated the prohibition against double jeopardy, there was no double jeopardy violation because it is entirely appropriate to charge a separate count for each victim when each child harmed is a distinct victim with unique injuries, and in this case a forensic pathologist opined that one child died from heat stroke and the other child had a body temperature of 108 degrees and suffered severe injuries which required the child to relearn how to talk, walk, eat and breathe by herself. State v. Taylor, 2021-NMCA-033, 493 P.3d 463, rev'd on other grounds by 2024-NMSC-011.

Multiple convictions did not violate double jeopardy. — Where defendant was charged with twenty-six counts involving allegations that he sexually abused his minor step-daughter by perpetrating varying forms of criminal sexual penetration and criminal sexual contact, and where the testimony at trial more than adequately established that defendant forced his step-daughter to engage in sex acts and that he perpetrated the different and varying acts for which he was convicted, and where defendant's step-daughter described the number of sex acts committed with sufficient certainty to support each of the counts alleged in the indictment and for which defendant was convicted and testified that the abuse occurred two or three times a week for almost the entirety of the forty-and-one-half month indictment period, there was sufficient evidence to support defendant's convictions. State v. Lente, 2019-NMSC-020.

Double jeopardy was not violated by amendment of defendant’s sentence. — Where the district court initially determined that defendant’s 1972 uncounseled misdemeanor DWI conviction could not be used to enhance defendant’s sentence for a 2009 aggravated DWI; the state asked the court to reconsider its ruling as a legal error six days after the court entered the sentence; the state did not present any new or supplemental evidence; the court determined that it had erred as a matter of law because defendant had not been sentenced to jail for the 1972 conviction; and the court amended defendant’s sentence based on the legal error regarding the 1972 conviction, defendant did not have a reasonable expectation of finality in the original sentence because the state moved for reconsideration of the court’s ruling on the validity of the 1972 sentence within the 30 days of the court’s entry of the sentence and double jeopardy did not preclude the modification of defendant’s sentence based on the legal error. State v. Redhouse, 2011-NMCA-118, 269 P.3d 8, cert. denied, 2011-NMCERT-011.

Increased sentence resulted in double jeopardy violation. — Where defendant was convicted of aggravated DWI and vehicular homicide, and where defendant was initially sentenced to eighteen months for the DWI conviction and sixteen years for the vehicular homicide conviction, which included a one-year habitual offender enhancement, and where the court suspended seven and one-half years of the sentence for an actual term of ten years, and where, before entry of the judgment and sentence, defendant moved to reconsider his sentence and vacate the aggravated DWI conviction, claiming that his conviction for both crimes subjected him to double jeopardy, and where the court granted the defendant's motion and vacated the aggravated DWI conviction and resentenced defendant to sixteen years for the vehicular homicide conviction, which included a one-year habitual offender enhancement, and suspended six years for an actual term of ten years, and for the first time, designated defendant's crime a serious violent offense, and where, in a later order clarifying its judgment and sentence, the court explained that it lacked the authority to designate defendant's conviction for second-degree vehicular homicide a serious violent offense, and where the court, in an attempt to compensate for this lack of authority, resentenced defendant to fifteen years, which included a one-year habitual offender enhancement, with no time suspended, resulting in a actual term of fifteen years, defendant's constitutional rights were violated because the double jeopardy clause protects a criminal defendant's reasonable expectation of finality in a sentence, and this protection is the basis of a well-established principle of New Mexico law that a trial court generally cannot increase a valid sentence once a defendant begins serving that sentence. State v. Garcia, 2022-NMCA-008, cert. denied.

Sex offender registration. — Because the Albuquerque Sex Offender Registration and Notification Act ordinance is a regulatory scheme that is not punitive in intent or effect, the retroactive application of the ordinance does not violate the double jeopardy clause. ACLU v. City of Albuquerque, 2006-NMCA-078, 139 N.M. 761, 137 P.3d 1215.

Double jeopardy did not attach at the time of oral sentencing. — Where defendant entered into a plea agreement which required defendant to make restitution to investors in defendant’s limited liability company; the court orally sentenced defendant; defendant failed to make restitution; and the court withdrew defendant’s plea and ordered defendant to stand trial, double jeopardy did not attach at the time of the oral sentencing and did not preclude the court from ordering defendant to stand trial because defendant could not have formed an expectation of finality in the oral sentence imposed pursuant to the plea agreement, the terms of which defendant either would not or could not keep. State v. Soutar, 2012-NMCA-024, 272 P.3d 154.

Oral rulings do not terminate jeopardy. State v. Vaughn, 2005-NMCA-076, 137 N.M. 674, 114 P.3d 354, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

Policies underlying double jeopardy prohibition. — Several policies underlie the double jeopardy prohibition: First, guilt should be established by proving the elements of a crime to the satisfaction of a single jury, not by capitalizing on the increased probability of conviction resulting from repeated prosecutions before many juries; second, the prosecutor should not be able to search for an agreeable sentence by bringing successive prosecutions for the same offense before different judges; third, criminal trials should not become an instrument for unnecessarily badgering individuals; and finally, judges should not impose multiple punishments for a single legislatively defined offense. State v. Tanton, 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269, rev'd, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

This section applies to prevent a person from being punished twice for the same offense. State v. McAfee, 1967-NMSC-139, 78 N.M. 108, 428 P.2d 647.

The double jeopardy clause is designed to prohibit the government from harassing citizens by subjecting them to multiple suits on the same offense until a conviction is obtained. State v. Spillmon, 1976-NMSC-048, 89 N.M. 406, 553 P.2d 686.

The purpose of the double jeopardy prohibition is to prevent the government from harassing citizens by subjecting them to multiple suits until a conviction is reached, or from repeatedly subjecting citizens to the expense, embarrassment and ordeal of repeated trials. State v. Lujan, 1985-NMCA-111, 103 N.M. 667, 712 P.2d 13, cert. denied, 103 N.M. 740, 713 P.2d 556 (1986).

The goal of the multiple prosecution component of the double jeopardy clause is to protect a defendant from embarrassment, expense, ordeal, anxiety and insecurity, and to protect his right to conclusion of criminal charges against him. State v. Davis, 1998-NMCA-148, 126 N.M. 297, 968 P.2d 808.

Constitutional prohibition against "double jeopardy" designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. State v. Mares, 1979-NMCA-049, 92 N.M. 687, 594 P.2d 347, cert. denied, 92 N.M. 675, 593 P.2d 1078.

Where double jeopardy protections are violated, the general practice is to vacate the conviction carrying the shorter sentence. — Where defendant was charged with contributing to the delinquency of a minor (CDM) and shoplifting when defendant assisted a minor child in stealing bottles of alcohol from Wal-Mart, defendant’s double jeopardy protections were violated because the conduct underlying the CDM conviction and the shoplifting conviction was unitary, and under double jeopardy jurisprudence, the shoplifting conviction, a petty misdemeanor that carries a lesser punishment, must be vacated, while the CDM conviction, a felony, must stand, because the appellate courts' general practice is to vacate the conviction carrying the shorter sentence in cases where double jeopardy protections have been violated. State v. Lozoya, 2017-NMCA-052, cert. denied.

No double jeopardy where significant time has elapsed. — The defense of double jeopardy did not apply to successive prosecutions where twenty months elapsed between the prior alleged violation and a distinct criminal act. City of Roswell v. Hancock, 1998-NMCA-130, 126 N.M. 109, 967 P.2d 449, cert. denied, 126 N.M. 107, 967 P.2d 447.

Double jeopardy statute. — Section 30-1-10 NMSA 1978 provides the same protections as this section, although those protections are more clearly stated in the statute. State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74 P.3d 73.

In order to preserve claim that double jeopardy protection under the state constitution was more expansive than under federal constitution, defendant had to raise this claim in the trial court and provide a basis to interpret the state constitution differently. State v. Vaughn, 2005-NMCA-076, 137 N.M. 674, 114 P.3d 354, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

State protections broader than those of federal constitution. — The differences between this section and 30-1-10 NMSA 1978 suggest that the legislature was attempting to articulate the protections of this section as being broader than those of the federal constitution. The statute says, more clearly than the constitutional provision, that the new trial ought not concern an offense of a greater degree than the degree of which the defendant had been convicted at the prior trial. State v. Lynch, 2003-NMSC-020, 134 N.M. 139, 74 P.3d 73.

State and federal provisions similar. — There is little to distinguish the language of state constitutional prohibition against double jeopardy from that found in the federal constitution. Since the two provisions are so similar in nature, they should be construed and interpreted in the same manner. State v. Rogers, 1977-NMSC-057, 90 N.M. 604, 566 P.2d 1142.

Section subject to same construction as federal counterpart. — The double jeopardy clause in this section is subject to the same construction and interpretation as its counterpart in the fifth amendment to the United States constitution. State v. Day, 1980-NMSC-032, 94 N.M. 753, 617 P.2d 142, cert. denied, 449 U.S. 860, 101 S. Ct. 163, 66 L. Ed. 2d 77 (1980).

The word "jeopardy" as used in the U.S. Const., amend. V and in this section is used in its technical sense and is only applicable to criminal proceedings. Svejcara v. Whitman, 1971-NMCA-093, 82 N.M. 739, 487 P.2d 167.

Application of double jeopardy clause. — The double jeopardy clause only comes to the aid of defendants subjected to multiple prosecutions for the identical offense, or in such situations in which collateral estoppel, the concept of lesser included offenses or the same evidence test apply. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813, rev'g, 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269.

Procedure to avoid double jeopardy. — In the event the jury finds a defendant guilty of two crimes arising from the same offense, simply merging the two felonies post-conviction is not enough. The trial court must explicitly vacate one of the convictions. Thus, the trial judge must both merge and vacate the underlying offense to avoid double jeopardy. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057.

Where defendant was convicted of both felony murder and the underlying predicate felony of armed robbery; the trial court merged the armed robbery conviction into the felony murder conviction, but did not vacate the armed robbery conviction; and the trial court sentenced defendant only for the felony murder conviction, the trial court erred by not vacating the armed robbery conviction. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057.

Legislative definition of offenses not affected. — Few, if any, limitations are imposed by the double jeopardy clause on the legislative power to define offenses. State v. Edwards, 1984-NMCA-070, 102 N.M. 413, 696 P.2d 1006, cert. quashed, 102 N.M. 412, 696 P.2d 1005 (1985).

Application to municipal violations. — State and federal constitutional prohibitions against double jeopardy apply to prosecutions for violation of municipal ordinances. City of Roswell v. Hancock, 1998-NMCA-130, 126 N.M. 109, 967 P.2d 449, cert. denied, 126 N.M. 107, 967 P.2d 447.

Guilty plea not a bar to raising issue on appeal. — The defendant was not barred by the fact that he pled guilty to the first two counts of a three count indictment, in which all of the counts were identically worded, including the name of the victim, from raising the double jeopardy claim on appeal. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Double jeopardy is a jurisdictional issue that can be raised on appeal even if not previously raised at trial. State v. Davis, 1998-NMCA-148, 126 N.M. 297, 968 P.2d 808.

Prosecution in both state and federal courts for same offense. — This section is subject to the doctrine of dual sovereignty, and does not prohibit the prosecution of a defendant in both state and federal courts for criminal charges arising out of an alleged criminal activity. Each government can determine what shall be an offense against its peace and dignity, thereby permitting each sovereign to prosecute regardless of what the other has done. State v. Rogers, 1977-NMSC-057, 90 N.M. 604, 566 P.2d 1142, aff'g in part, rev'g in part, 1977-NMCA-019, 90 N.M. 673, 568 P.2d 199.

Under limited definition of double jeopardy in New Mexico, which used the "same evidence" test rather than the "same transaction" test, state was not precluded from prosecuting defendant for kidnapping and receiving stolen goods after defendant had been acquitted in federal court of bank robbery, which charge assumedly arose from the "same transaction" as the other charges. However, since the common-law collateral estoppel doctrine would have prevented the kidnapping conviction if not for the principle of dual sovereignty, that conviction was reversed on policy grounds. State v. Rogers, 1977-NMCA-019, 90 N.M. 673, 568 P.2d 199, aff'd in part, rev'd in part, 1977-NMSC-057, 90 N.M. 604, 566 P.2d 1142.

Factual basis must appear in record in order to support a double jeopardy defense. State v. Wood, 1994-NMCA-060, 117 N.M. 682, 875 P.2d 1113, cert. denied, 117 N.M. 744, 877 P.2d 44.

Defendant's assertion of mere possibility of double jeopardy is insufficient to give rise to a constitutional issue in the court of appeals. State v. Newman, 1971-NMCA-137, 83 N.M. 165, 489 P.2d 673.

When defendant placed in jeopardy. — A defendant is placed in jeopardy when, after issue joined upon a valid indictment before a competent court, the jury is impaneled and sworn to try his case; territorial statute providing that nolle prosequi could not be entered after any testimony had been introduced for defendant would be violative of fundamental law and void if such law assumed to give the right to dismiss at any time before the defendant offered proof. United States v. Aurandt, 1910-NMSC-011, 15 N.M. 292, 107 P. 1064, 27 L.R.A. (n.s.) 1181 (1910), overruled by State v. Klasner, 1914-NMSC-015, 19 N.M. 474, 145 P. 679.

Assuming the court has jurisdiction, and prior proceedings are valid, jeopardy attaches when issue is joined upon an indictment or information, and the jury is impaneled and sworn to try the cause. Ex parte Williams, 1954-NMSC-005, 58 N.M. 37, 265 P.2d 359.

Both a sufficient legal charge and a sufficient jurisdiction to try the charge must exist for jeopardy to attach. State v. Goodson, 1950-NMSC-023, 54 N.M. 184, 217 P.2d 262.

Where defendant was charged with both aggravated battery and attempt, and where the lesser charge of attempt was dismissed prior to trial, it was not "double jeopardy" to proceed to try defendant on the charge of aggravated battery, because defendant was not tried on the attempt charge and the attempt charge was dismissed before any evidence was presented. State v. Hibbs, 1971-NMCA-100, 82 N.M. 722, 487 P.2d 150.

The factors to be taken into consideration in determining whether a defendant's retrial will place him in double jeopardy after a prior trial has been aborted by the declaration of a mistrial not at his request include: (1) defendant's interest in having his fate determined by the jury first impaneled, which encompasses not only his right to have his trial completed by a particular panel, but also his interest in ending the dispute then and there with an acquittal, and would weigh heavily against retrial in all situations where jeopardy has attached (i.e., after the jury is sworn to try the case), and (2) the factor of avoiding giving the state a second bite of the apple in order to either strengthen its case or to alter its trial strategy to obtain a conviction. State v. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

Jeopardy attaches when issue is joined upon an indictment or information, and the jury is impaneled and sworn to try the cause, or, in nonjury cases, the presentation of at least some evidence on behalf of the state. State v. Rhodes, 1966-NMSC-064, 76 N.M. 177, 413 P.2d 214; State v. Mares, 1979-NMCA-049, 92 N.M. 687, 594 P.2d 347, cert. denied, 92 N.M. 675, 593 P.2d 1078.

Jeopardy attaches upon a court’s entry of a default judgment. State v. Esparza, 2003-NMCA-075, 133 N.M. 772, 70 P.3d 762, cert. denied, 133 N.M. 771, 70 P.3d 761.

New adjudication of delinquency held double jeopardy. — It was error to rely solely on a predisposition report submitted after trial to support the finding that a child was in need of care and rehabilitation. Since jeopardy attached at the first hearing where the issue of delinquency was tried, it would violate the constitutional prohibition against double jeopardy to remand case for a new adjudication of delinquency. Doe v. State, 1978-NMSC-068, 92 N.M. 74, 582 P.2d 1287

Correction of jury verdict. — Where jury foreman mistakenly signed the not guilty verdict form when in fact the jury had unanimously found defendant guilty of DWI, the trial court had announced that the jury was discharged, but the jury remained in the presence and control of the trial court and had not been subjected to outside influence or contamination, the trial court was entitled to correct the verdict form to reflect the true verdict of the jury and defendant's right to be free from double jeopardy was not violated. State v. Rodriguez, 2006-NMSC-018, 139 N.M. 450, 134 P.3d 737, rev'g 2004-NMCA-125, 136 N.M. 494, 100 P.3d 200.

Remand by children's court judge to special master. — As long as the special master's recommendations are not binding on the children's court judge, a special master is considered a ministerial rather than a judicial officer, and is without powers of adjudication. Under Rule 10-111 F NMRA, the children's court is not bound by the special master's findings and conclusions. Thus, there is no violation of the double jeopardy clause when the children's court judge remands to the special master prior to entering its findings and conclusions. State v. Billy M., 1987-NMCA-080, 106 N.M. 123, 739 P.2d 992, cert. denied, 106 N.M. 95, 739 P.2d 509.

Where petitioner's claim of double jeopardy went outside the record and thus the "files and records of the case" did not conclusively show petitioner was not entitled to relief under that claim, he was entitled to an evidentiary hearing on that claim where the burden would be on him to prove a factual basis showing double jeopardy. Woods v. State, 1972-NMCA-128, 84 N.M. 248, 501 P.2d 692.

Double jeopardy found. — Conviction for embezzling a sum as county clerk and ex officio clerk of the district court bars further prosecution for embezzling another sum as county clerk and ex officio probate clerk, where state is unable to show the conversion of any particular sum at any particular time. State v. Romero, 1928-NMSC-023, 33 N.M. 314, 267 P. 66.

Where defendants were charged with felony murder, aggravated burglary and attempted robbery, and the jury returned a verdict of guilty as to attempted robbery and not guilty as to burglary, but even though they received an instruction on felony murder, reached no verdict as to either first-degree or second-degree murder, having declared that they were deadlocked, the trial court could not order retrial of murder charges without violating double jeopardy clause, since it concluded the proceedings without declaring a mistrial and without reserving power to retry those issues upon which the jury could not agree. State v. Spillmon, 1976-NMSC-048, 89 N.M. 406, 553 P.2d 686.

Double jeopardy not found. — Where defendant's motion to dismiss because of the vagueness of the "totaling" provision of 30-36-5 NMSA 1978 was sustained and the information was dismissed before a plea was entered, the proceeding did not consider the "merits" of the charge since it considered only whether the "totaling" provisions of 30-36-5 NMSA 1978 were void for vagueness. Therefore, since defendant had not yet been in jeopardy, reinstatement of the information by reviewing court did not subject him to double jeopardy. State v. Ferris, 1969-NMCA-093, 80 N.M. 663, 459 P.2d 462.

Defendant's conviction of two larcenies did not amount to double jeopardy where he stole money from separate cash registers of separately owned shops located in same room divided only by low walls, since proof of theft of money from one shop would not have proved theft of money from the other, and therefore the evidence was not the same. State v. Bolen, 1976-NMCA-005, 88 N.M. 647, 545 P.2d 1025, cert. denied, 89 N.M. 5, 546 P.2d 70.

Evidence that a conspiracy to commit burglary was entered on the evening of November 16th, that the conspirators unsuccessfully attempted to carry out the conspiracy at 10:30 p.m. of that day, and that the burglary was performed between 9:00 and 9:30 a.m. of November 17th, showed two distinct crimes, and there was no factual basis for the contention that they were either the same or so similar that multiple convictions were prohibited. State v. Watkins, 1975-NMCA-126, 88 N.M. 561, 543 P.2d 1189, cert. denied, 89 N.M. 6, 546 P.2d 71.

Since marijuana is not defined as a narcotic drug under the relevant statutes, a charge of violating 54-11-20, 1953 Comp., (now 30-31-20 NMSA 1978), which prohibited the sale of narcotic drugs, in the first proceeding brought against defendant for selling marijuana did not charge defendant with a public offense. Therefore, the court lacked jurisdiction in the first proceeding, and there was no basis for a claim of double jeopardy where defendant was later charged under the proper section. State v. Mabrey, 1975-NMCA-098, 88 N.M. 227, 539 P.2d 617.

Prosecutor misconduct. — Where the prosecutor committed misconduct in defendant’s initial trial because the prosecutor referred to hearsay statements in his cross-examination of defendant, which the prosecutor represented to have been made by third parties which were falsely stated, misleading and prejudicial to defendant’s rights; the misconduct was isolated and was not reflected in other parts of the trial, including closing, and the prosecutor did not know that the conduct was improper and prejudicial, the prosecutor’s misconduct was not so extraordinary as to require a bar to reprosecution based on double jeopardy concerns. State v. McClaugherty, 2007-NMCA-041, 141 N.M. 468, 157 P.3d 33, aff'd, 2008-NMSC-044, 144 N.M. 483, 188 P.3d 1234.

B. PUNISHMENT.

Sentencing increase prohibited. — The constitutional protection against double jeopardy prohibits increasing a defendant's sentence once a defendant begins serving that sentence. State v. Duhon, 2005-NMCA-120, 138 N.M. 466, 122 P.3d 50, cert. quashed, 2006-NMCERT-003, 139 N.M. 353, 132 P.3d 1039.

This section prohibits double punishment for the same crime. State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209.

Respecting multiple punishments. – The double jeopardy clause in this section has not been construed more broadly than its federal counterpart in the context of multiple punishments. State v. Andazola, 2003-NMCA-146, 134 N.M. 710, 82 P.3d 77.

Indicia of distinctness was not sufficient to support separate convictions for possession of a deadly weapon by a prisoner. — Where defendant was convicted of two counts of possession of a deadly weapon by a prisoner based on evidence that, during a search of defendant's dormitory-style pod, prison staff found "two makeshift weapons" in defendant's bunk, defendant's two convictions violated his double jeopardy rights because evidence that the two weapons were similar in nature, were found in the same area of defendant's bunk, were found during the same search, and the fact that there was no evidence to suggest that defendant came into possession of the weapons at different times, do not support a reasonable inference of distinctness, and therefore it cannot be presumed that the legislature intended to punish defendant for each weapon he possessed under the circumstances of this case. State v. Benally, 2021-NMSC-027, aff'g 2019-NMCA-048, 448 P.3d 592.

Insufficient indicia of distinctness to justify multiple punishments for possession of a deadly weapon by a prisoner. — Where defendant was convicted of two counts of possession of a deadly weapon by a prisoner based on evidence that a razor blade was discovered concealed above his bunk bed and a sharpened mop handle was discovered inside his mattress, there was insufficient evidence to indicate possessory conduct sufficiently distinct in nature to support multiple punishments, and the minor differences in functionality between the two prison-made weapons possessed by defendant does not justify convicting him of separate counts of possession of a deadly weapon by a prisoner. State v. Benally, 2019-NMCA-048, cert. granted.

Merger of sentences. — Where defendant was convicted of first degree murder, felony murder and shooting from a motor vehicle resulting in great bodily harm, which provided the felonious act for the felony murder conviction; the convictions for first degree murder and shooting from a vehicle were based on the same act of shooting the victim; and at sentencing, the district court merged the felony murder and first degree convictions, defendant was subject to double jeopardy and the convictions for felony murder and shooting from a motor vehicle should have been vacated. State v. Sisneros, 2013-NMSC-049.

Double jeopardy violation required court to vacate conviction with shorter sentence, notwithstanding potential good time credit. — Where defendant was convicted of attempted first degree murder with a firearm, which with enhancements carried a fourteen year sentence, and shooting at or from a motor vehicle resulting in great bodily harm, which with enhancements carried a thirteen year sentence, and where, following trial, the district court found that defendant’s convictions resulted in a double jeopardy violation, requiring the court to vacate one of the two convictions, and where the district court, in vacating defendant’s conviction for attempted first degree murder, engaged in a hypothetical analysis that went beyond considering the sentence length of each conviction and took into account that one conviction was a serious violent offense, which could affect potential good time credit awarded by the corrections department toward defendant’s total time incarcerated, the district court erred in vacating defendant’s conviction for attempted first degree murder, because it was a misapprehension of the law for the district court to determine that the attempted first degree murder conviction resulted in the shorter sentence. The computation of good time credit is a discretionary matter that is reserved for the corrections department, and should not impact the determination of the original sentence, and because shooting at or from a motor vehicle resulting in great bodily harm is the conviction with the shorter sentence, the district should have vacated defendant’s conviction for shooting at or from a motor vehicle. State v. Bryant, 2023-NMCA-016, cert. denied.

Federal constitutional principles applied. — Where the defendant, although referring to this section, neither argued that his rights were not adequately protected under the federal constitution nor justified a departure from federal precedent, his double jeopardy claim would be resolved under federal double jeopardy principles. State v. Andazola, 2003-NMCA-146, 134 N.M. 710, 82 P.3d 77.

Civil damages awarded after criminal conviction. — Punitive damage serves a civil end to an individual, while criminal sanctions serve a criminal end to the public and an award to punitive damages in tort action against defendant after defendant has been convicted of reckless driving and driving under the influence does not constitute double jeopardy. Svejcara v. Whitman, 1971-NMCA-093, 82 N.M. 739, 487 P.2d 167.

Revocation of juvenile probation after adult offenses. — The order of the children's court revoking the defendant's probation based on offenses committed by the defendant after he became an adult for which he was convicted and fined did not violate his constitutional rights guaranteeing protection against double jeopardy. A probation revocation proceeding is not a new criminal trial to impose a new punishment. Any new disposition given as the result of revocation relates back to defendant's original delinquent act and executes a penalty previously imposed. In re Lucio F.T., 1994-NMCA-144, 119 N.M. 76, 888 P.2d 958, cert. denied, 119 N.M. 20, 888 P.2d 466.

Failure to allow good time credit for presentence confinement does not subject a prisoner to double jeopardy. Enright v. State, 1986-NMSC-070, 104 N.M. 672, 726 P.2d 349.

Administrative plus statutory punishment for prison escape. — Even if administrative sanctions have been levied against defendant for his escape from prison, conviction under 30-22-9 NMSA 1978 did not constitute double jeopardy. State v. Budau, 1973-NMCA-151, 86 N.M. 21, 518 P.2d 1225, cert. denied, 86 N.M. 5, 518 P.2d 1209

Administrative discipline of an escapee does not prohibit criminal prosecution for the escape nor do the two punishments constitute double jeopardy. State v. Millican, 1972-NMSC-064, 84 N.M. 256, 501 P.2d 1076.

Increased sentence resulting from Habitual Criminal Act. — Where defendant's first conviction, standing alone, was not the cause of an enhanced sentence, but rather the enhancement was due to the Habitual Criminal Act, defendant's enhanced punishment was not prohibited as double jeopardy. State v. Gonzales, 1972-NMCA-130, 84 N.M. 275, 502 P.2d 300, cert. denied, 84 N.M. 271, 502 P.2d 296.

Double jeopardy generally does not attach in habitual offender sentencing proceedings especially where the state committed only procedural error. State v. Aragon, 1993-NMSC-054, 116 N.M. 267, 861 P.2d 948.

Habitual offender enhancement of an escape conviction does not constitute double jeopardy. State v. Najar, 1994-NMCA-098, 118 N.M. 230, 880 P.2d 327, cert. denied, 118 N.M. 90, 879 P.2d 91.

For purposes of double jeopardy, when a defendant is proven to be a habitual offender, enhancement is authorized, and the defendant's expectation of finality in the underlying sentence as the only sentence he may receive is destroyed; the enhanced sentence then supplants the original sentence and results in one, single, longer sentence for the crime. State v. Porras, 1999-NMCA-016, 126 N.M. 628, 973 P.2d 880.

Trial court acted illegally when it increased defendant's sentence from ninety days to three years on the underlying felony charges; once he began serving the original sentence, double jeopardy principles precluded increasing the sentence on the underlying charges, regardless of whether the sentence could be increased based upon his habitual offender status. State v. Porras, 1999-NMCA-016, 126 N.M. 628, 973 P.2d 880.

Defendant, a three-time felony offender, had no reasonable expectation of finality in a three-year probationary sentence for a larceny conviction; therefore, it was not a violation of his double jeopardy rights for the state to seek a subsequent conviction of defendant, during the probationary period, under the habitual offender laws. State v. Villalobos, 1998-NMSC-036, 126 N.M. 255, 968 P.2d 766.

Multiple uses of prior convictions does not violate double jeopardy. — Where defendant’s prior felony convictions were used to establish defendant’s status as a habitual offender for sentencing for attempted murder and to serve as the predicate felony for defendant’s conviction of felon in possession of a firearm, the double jeopardy clause was not violated. State v. Tafoya, 2012-NMSC-030, 285 P.3d 604.

Double use of conditional discharge. — Use of the defendant's prior conditional discharge to prove that he was a felon in order to convict him of the crime of felon in possession of a firearm and to enhance his sentence for underlying assault convictions did not violate his double jeopardy rights. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Increased sentence after original sentence set aside. — Where, at the defendant's behest, his sentence is set aside on appeal or by collateral attack, the imposition of a greater sentence does not violate federal or state double jeopardy principles. Tipton v. Baker, 432 F.2d 245 (10th Cir. 1970).

Increased sentence after trial de novo. — A greater sentence imposed by the district court for violation of certain municipal ordinances after a trial de novo does not deprive defendant of due process, nor does it amount to double jeopardy. City of Farmington v. Sandoval, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.

Increase of punishment after defendant committed. — A trial court is without power to set aside a valid sentence after the defendant has been committed thereunder, and impose a new or different sentence increasing the punishment. A judgment which attempts to do so is void, and the original judgment remains in force. State v. Allen, 1971-NMSC-026, 82 N.M. 373, 482 P.2d 237; State v. Cheadle, 1987-NMSC-100, 106 N.M. 391, 744 P.2d 166.

Where defendant has started to serve an eight-year sentence, it can be increased only if the underlying sentence itself is invalid. State v. Duhon, 2005-NMCA-120, 138 N.M. 466, 122 P.3d 50, cert. quashed, 2006-NMCERT-003, 139 N.M. 353, 132 P.3d 1039.

Increasing a sentence, after a defendant has commenced to serve it, is a violation of the constitutional guarantee against double jeopardy. State v. Allen, 1971-NMSC-026, 82 N.M. 373, 482 P.2d 237; State v. Cheadle, 1987-NMSC-100, 106 N.M. 391, 744 P.2d 166.

Amended judgment adding term of probation. — Trial court's filing of an amended judgment increasing defendant's sentence by adding a three-year term of probation violated the prohibition against double jeopardy. State v. Charlton, 1992-NMCA-124, 115 N.M. 35, 846 P.2d 341, cert. denied, 114 N.M. 577, 844 P.2d 827.

Additional evaluation of sentence raises no double jeopardy issue. — An order deferring sentence in no way represents a suspension or a final sentence, at least for purposes of jurisdiction. Where deferral is ordered for the purpose of additional evaluation as recommended by department of corrections, a statutory sentence subsequently imposed is not a second sentence, but the first sentence imposed in the case. Accordingly, there is no second sentence raising a double jeopardy issue and no absence of authority in the trial court to impose the statutory sentence. State v. Wood, 1974-NMCA-113, 86 N.M. 731, 527 P.2d 494, cert. denied, 86 N.M. 730, 527 P.2d 493.

Consecutive sentences for crimes arising out of the same event do not constitute double jeopardy unless there has been a merger. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139.

All consecutive sentences for different offenses arising out of the same event do not necessarily violate the double jeopardy prohibition of the United States and New Mexico constitutions. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139.

Separate, successive contempts are punishable as separate offenses, but where the supreme court cannot be sure from the judgment of conviction that defendant was not convicted of contempt by one judge for the same misconduct for which he was summarily convicted and sentenced by another judge, it cannot be sure that his rights against double jeopardy have not been violated. Consequently, the proper procedure to be followed to protect against this possible violation of his rights, and to protect the rights of the public to have contempts of court punished, is to reverse the decision of the court of appeals affirming the conviction, reverse the judgment and sentence of the district court, and remand the cause to the district court for further proceedings. State v. Driscoll, 1976-NMSC-021, 89 N.M. 541, 555 P.2d 136.

Increasing sentence based on consideration of element of offense. — Where defendant noted that physical injury is an element of the crime of second degree criminal sexual penetration under 30-9-11B(2) NMSA 1978, and he contended the trial court's consideration of physical injury suffered by the victim in increasing the basic sentence pursuant to 31-18-15.1 NMSA 1978 exposed him to double jeopardy, it was held that the court's consideration of circumstances surrounding an element of the offense did not expose defendant to double jeopardy. State v. Bernal, 1987-NMCA-075, 106 N.M. 117, 739 P.2d 986, cert. denied, 106 N.M. 81, 738 P.2d 1326.

Consideration of double jeopardy claim on second appeal. — Where defendant’s double jeopardy claim was not decided in his first appeal, a double jeopardy claim may be raised on a second appeal, and the law of the case doctrine should not preclude the appeal, specifically where there is nothing in the record demonstrating that defendant intentionally waived or abandoned the argument. State v. Franco, 2016-NMCA-074, cert. denied.

Imposing a basic sentence based on the elements of a crime does not violate double jeopardy. — Where defendant claimed that he was being punished twice for a single death: first, when the death was used to satisfy the great bodily harm element of his shooting at a motor vehicle conviction, thus elevating that crime to a second degree felony, and second, when the death was used to impose a fifteen-year sentence pursuant to 31-18-15(A)(4) NMSA 1978, defendant’s right to be free from double jeopardy was not violated because the legislature intended 31-18-15(A)(4) NMSA 1978 to be the basic sentence applicable to all second-degree felonies resulting in death. State v. Franco, 2016-NMCA-074, cert. denied.

Forfeiture. — The city ordinance that allowed city to enact civil forfeiture proceedings against drivers who continued to drive with revoked licenses served the remedial purpose of protecting the public and that the forfeiture of a motor vehicle used by a repeat offender and was not punitive; therefore, the drivers were not subjected to double jeopardy. City of Albuquerque ex rel. Albuquerque Police Dep't v. One (1) 1984 White Chevy UT., 2002-NMSC-014, 132 N.M. 187, 46 P.3d 94.

Prosecution and forfeiture generally. — State v. Nunez, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, does not stand for the proposition that a criminal prosecution may never advance independently of a forfeiture proceeding. Rather, Nunez appears to mandate only proper initiation of the dual penalty proceeding, meaning that the criminal charges and the forfeiture proceeding must be merged or consolidated prior to the occurrence of any event that signals the attachment of jeopardy. State v. Esparza, 2003-NMCA-075, 133 N.M. 772, 70 P.3d 762, cert. denied, 133 N.M. 771, 70 P.3d 761.

A default forfeiture judgment and subsequent criminal prosecution in separate proceedings violate double jeopardy. — Where defendant was convicted for drug trafficking, conspiracy to commit drug trafficking, and possession of drug paraphernalia, he was twice put in jeopardy for the same crime when the state both forfeited his property and subjected him to a criminal trial when the two matters were not sought in a single, bifurcated proceeding, but where the criminal trial occurred nearly three years after the conclusion of the forfeiture action and the two matters were decided before different judges. Two separate proceedings resulting in two penalties based on the same conduct is contrary to double jeopardy principles. State v. Madrigal, 2015-NMCA-106, cert. denied, 2015-NMCERT-009.

C. TESTS.

Test for double jeopardy cases where a defendant asserts having been twice put in jeopardy for the same offense. — In double jeopardy cases where a defendant asserts having been twice put in jeopardy for the same offense, a court must first examine the statutes at issue to discern whether the modified or strict-elements Blockburger test applies. Once a court has made such a determination, it should then apply either the modified or the strict-elements test, but not both. Additionally, it is improper to apply the strict-elements Blockburger test in a case where the statute is vague or written in the alternative; such an application renders the conclusion unreliable. State v. Begaye, 2023-NMSC-015, rev'g 2022-NMCA-010.

Removal of child from the custody of the child’s parents pending an investigation of child abuse is not a punishment. — Where the children, youth and families department investigated defendants for child abuse and found the allegations to be unsubstantiated; a tribal court held a custody hearing on the same allegations and ultimately returned the child to defendants; the defendant who was the primary caretaker agreed to temporary guardianship of the child during the investigation and tribal court proceeding; and the removal of the child from the custody of defendants for 14 months during the child abuse investigation by the department and the custody proceeding in tribal court was not intended to punish defendants, the state’s prosecution of defendants for criminal child abuse did not violate double jeopardy. State v. Diggs, 2009-NMCA-099, 147 N.M. 122, 217 P.3d 608, cert. denied, 2009-NMCERT-007, 147 N.M. 362, 223 P.3d 359.

Conduct unitary. — Where defendant forged a check and attempted to present the check to a bank for payment, the conduct was unitary. State v. Lee, 2009-NMCA-075, 146 N.M. 605, 213 P.3d 509, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42.

Multiple shootings. — Where, during the course of a high speed chase, the defendant fired three shots from a bolt-action rifle at the pursuing officer; the shots were fired at different locations along the two mile route of the chase; and there were elapses of time between each shot, the shots were fired during a continuous course of conduct and constituted one act. State v. Demongey, 2008-NMCA-066, 144 N.M. 333, 187 P.3d 679, cert. quashed, 2011-NMCERT-001, 150 N.M. 560, 263 P.3d 901.

Conduct not unitary. — Where defendant had possession of cocaine when he received it from his supplier, defendant then brought the cocaine into a bathroom and put it on the counter so that he could separate a portion to sell to a state police undercover agent, and once defendant completed the sale to the undercover agent, defendant kept a portion of the cocaine, defendant’s conduct was not unitary and defendant’s convictions of trafficking cocaine, conspiracy to commit trafficking cocaine and possession of cocaine did not violate double jeopardy. State v. Contreras, 2007-NMCA-045, 141 N.M. 434, 156 P.3d 725, cert. quashed, 2007-NMCERT-011, 143 N.M. 157, 173 P.3d 764.

Where defendant, who was convicted of both felony murder and aggravated burglary, used several weapons during the attack on the victim, the death of the victim was not caused by the initial attack alone, and there was an intervening struggle during which the victim defended himself, the defendant's conduct was not unitary, but consisted of two distinct acts. State v. DeGraff, 2006-NMSC-011, 139 N.M. 211, 131 P.3d 61

No double jeopardy violation where child's actions in committing aggravated assault with a deadly weapon and unlawful carrying of a deadly weapon on school premises were not unitary. — Where a child was adjudicated delinquent for committing aggravated assault with a deadly weapon on a school employee and unlawful carrying of a deadly weapon on school premises, there was no double jeopardy violation because the child's actions were not unitary. At the point the child crossed onto the school grounds with the BB gun, the child completed the crime of unlawfully carrying a deadly weapon on school premises, and the child did not assault the school employee until the school principal escorted the child back to the principal's office and asked the child to empty his pockets. Thus, both time and location separated the child's acts of bringing the BB gun to school and threatening the school principal with it, and the two acts were not unitary. Moreover, the criminal acts were of distinct quality and nature, affected different victims, and were motivated by different objectives. State v. Zachariah G., 2021-NMCA-036, cert. granted.

Determination of whether same offense involved. — Various approaches have been used in determining whether the same offense is involved in a particular case and the result is that the prohibition against double jeopardy is not one rule, but several, each applying to a different situation, some of these being: (1) collateral estoppel which looks to all the relevant matters and determines whether or not the jury, in reaching its verdict in the first trial, necessarily or actually determined the same issues which the state attempts to raise in the second trial; (2) same evidence, where one determines whether the facts offered in support of one offense would sustain a conviction of a second offense, and if either charge requires the proof of facts to support a conviction which the other does not, the offenses are not the same; (3) lesser included offense, where conviction or acquittal of a lesser offense necessarily included in a greater offense bars prosecution for the greater offense; (4) merger of offenses, which requires determination of whether one criminal offense has merged in another and is not whether the two criminal acts are successive steps in the same transaction but whether one offense necessarily involves the other; and (5) same transaction, which requires a determination of whether the several offenses are the same, as where they arise out of the same transaction, and were committed at the same time, and were part of a continuous criminal act, and inspired by the same criminal intent, which is an essential element of each offense, they are susceptible of only one punishment. State v. Tanton, 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269, rev'd, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

Determination of unitary nature of conduct. — Where a defendant convicted of multiple offenses claims double jeopardy, a reviewing court first determines whether defendant's conduct was unitary in nature so that the same acts were used to prove a violation of both statutes; and where the conduct is unitary, the court must then examine the statutes in question to determine whether the legislature intended that multiple punishments could be imposed for different criminal offenses resulting from the same conduct. State v. Duran, 1998-NMCA-153, 126 N.M. 60, 966 P.2d 768, cert. denied, 126 N.M. 533, 972 P.2d 352, overruled by State v. Laguna, 1999-NMCA-152, 128 N.M. 345, 992 P.2d 896.

Multi-punishment analysis. — There is a two-part test in the multi-punishment analysis for determining legislative intent to punish: (1) whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes, and (2) whether the legislature intended to create separately punishable offenses. Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

Unit of prosecution for child abuse statute. — Where defendant was convicted of three counts of child abuse following a shooting in which defendant fired a gun multiple times into a vehicle where three children were sitting, defendant’s three convictions for child abuse did not violate double jeopardy, because, where each of the three children separately testified to the fear and shock they respectively suffered as a result of defendant’s conduct, it is evident that the legislature intended that under the circumstances of this case each separate child be the appropriate unit of prosecution. State v. Ramirez, 2018-NMSC-003.

Factors considered. — In determining whether the defendant's acts constituted a single offense or multiple offenses for purposes of double jeopardy, factors considered include the time between the acts, the location of the victim at the time of each act, the existence of any intervening event, distinctions in the manner of committing the acts, the defendant's intent, and the number of victims. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Words "same offense" mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation. State v. Goodson, 1950-NMSC-023, 54 N.M. 184, 217 P.2d 262.

Offense must be same in law and in fact. — The plea of double jeopardy is unavailing, unless the offense to which it is interposed is the same in law and in fact as the prior one under which defendant was placed in jeopardy. State v. Mares, 1968-NMCA-042, 79 N.M. 327, 442 P.2d 817, overruled by State v. Maestas, 1974-NMCA-112, 87 N.M. 6, 528 P.2d 650.

One offense cannot be split up into multiple prosecutions. — The same "offense" cannot be split into many parts and made the subject of innumerable prosecutions. The prosecution cannot split up into an indefinite number of charges what was in fact but one act and one offense. State v. Maestas, 1974-NMCA-112, 87 N.M. 6, 528 P.2d 650, cert. denied, 87 N.M. 5, 528 P.2d 649, overruled by State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813.

Same transaction test disapproved. — The "same transaction" test, which is concerned with whether offenses were committed at the same time, were part of a continuous criminal act and inspired by the same criminal intent, has not been imposed by the United States supreme court on the states in double jeopardy cases, and since its use is not mandated by this section, it is rejected and disapproved. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813, rev'g 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269.

Separate offenses. — The bare facts that defendant's child had three skull fractures, eight broken ribs, a broken fibula and bruises, when taken with defendant's admission that he struck his child on three occasions, supported a finding that the acts producing the child's injuries were sufficiently discrete as to allow the imposition of consecutive sentences and did not violate the double jeopardy clause. State v. Ayala, 2006-NMCA-088, 140 N.M. 126, 140 P.3d 547, cert. denied, 2006-NMCERT-007, 140 N.M. 279, 142 P.3d 360.

Collateral estoppel. — Under the rule of collateral estoppel any right, fact or matter in issue, and directly adjudicated upon, or necessarily involved in, the determination of an action before a competent court in which a judgment or decree is rendered upon the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and privies whether the claim or demand, purpose or subject matter of the two suits is the same or not. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535 P.2d 657.

Where the issue of defendant's sanity was an issue of fact in the first trial, insanity having been raised as an affirmative defense, it was actually litigated, and it was absolutely necessary to a decision in that trial, and the identical issue of fact, the sanity of the defendant, was raised in the second trial between the same parties (the state and the defendant) for offenses committed some 16 hours prior to the crime which was the subject of the first trial, it was held that the issue of insanity which was decided in defendant's favor at the first trial was the same issue of fact as the issue of insanity at the second trial and therefore collateral estoppel was a bar to the second trial. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, cert. denied, 87 N.M. 450, 535 P.2d 657.

The principle of collateral estoppel bars relitigation between the same parties of issues actually determined at a previous trial; in a criminal trial context collateral estoppel is a constitutional defense raised by the defendant in a second trial after an acquittal in the first trial on the same issue. Where the defendant was convicted in municipal court of violation of certain traffic ordinances, he had no acquittal to raise in his defense in district court on charges of homicide by vehicle, and application of the principle of collateral estoppel was therefore inappropriate. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813, rev'g 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269.

If the doctrine of collateral estoppel would bar New Mexico from prosecuting a defendant a second time, and the doctrine is inapplicable solely because of the concept of dual sovereignty, as a matter of judicial policy, the prosecution will not be permitted in New Mexico. State v. Rogers, 1977-NMCA-019, 90 N.M. 673, 568 P.2d 199, aff 'd in part, rev'd in part, 1977-NMSC-057, 90 N.M. 604, 566 P.2d 1142.

The same evidence test is whether the facts offered in support of one offense would sustain a conviction of the other offense. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

If either information requires the proof of facts to support a conviction which the other does not, the offenses are not the same and a plea of double jeopardy is unavailing. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

The test for determining whether two offenses are the same so as to bring into operation the prohibition against double jeopardy is the "same evidence" test which asks whether the facts offered in support of one offense would sustain a conviction of the other. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813, rev'g 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269; State v. Smith, 1980-NMSC-059, 94 N.M. 379, 610 P.2d 1208.

For double jeopardy, the test in determining whether the offenses charged are the same is whether the facts offered in support of one charge would sustain a conviction of the other. If either information requires the proof of facts to support a conviction which the other does not, the offenses are not the same and a plea of double jeopardy is unavailing. Owens v. Abram, 1954-NMSC-096, 58 N.M. 682, 274 P.2d 630, cert. denied, 348 U.S. 917, 75 S. Ct. 300, 99 L. Ed. 2d 719 (1955).

Same evidence test. — Under the "same evidence" test where different elements are required to be proved in order to sustain each of three convictions, and different evidence was admitted to prove the different elements, it appears that the three convictions are based in part on separate evidence and the prohibition against double jeopardy does not bar consecutive sentencing under the circumstances of the case. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280, overruled by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Multiple acts may be divided into counts when not "one offense". — When multiple acts cannot be classified as "one offense" under the same evidence test, they may nevertheless be divided into multiple counts if some applicable policy so demands. State v. Smith, 1980-NMSC-059, 94 N.M. 379, 610 P.2d 1208.

No double jeopardy where factual basis for two convictions differ. — If the factual basis for the alleged conviction for assault in municipal court and the factual basis for the aggravated assault conviction differed, then there would be no double jeopardy in conviction of defendant for both. Woods v. State, 1972-NMCA-128, 84 N.M. 248, 501 P.2d 692.

Burden on defendant to prove that factual basis is the same. — If the factual basis for the alleged conviction for assault in municipal court and the factual basis for the aggravated assault conviction differ, then there would be no double jeopardy and the burden will be on defendant to prove a factual basis showing double jeopardy. State v. Woods, 1973-NMCA-114, 85 N.M. 452, 513 P.2d 189.

The test of merger is whether one crime necessarily involves the other. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139.

The test of whether one criminal offense has merged in another is not whether the two criminal acts are successive steps in the same transaction, but whether one offense necessarily involves the other. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36.

The true test of whether one criminal offense has merged in another is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. If a defendant commits a burglary and while in the burglarized dwelling he commits the crime of rape or kidnapping, his crimes do not merge for neither of them is necessarily involved in the other. When one of two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36.

Whether defendant may be sentenced for each of his five crimes depends upon whether any one of the crimes has merged with any other of the crimes. If there has been a merger, defendant may not be sentenced for the merged offense. The test of merger is whether one of his crimes necessarily involves another of his crimes. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.

The test of whether one criminal offense has merged in another is not whether two criminal acts are successive steps in the same transaction (the rejected same transaction test), but whether one offense necessarily involves the other. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

The merger concept has aspects of the included offense concept, and in determining whether one offense necessarily involves another offense so that merger applies, the decisions have looked to the definitions of the crimes to see whether the elements are the same; this approach is similar to the approach used in determining whether an offense is an included offense (a determination of whether the greater offense can be committed without also committing the lesser). State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Whether defendant can be sentenced for two crimes depends upon whether one crime merges with the other. The test of merger is whether one crime necessarily involves the other. State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209.

The true test of whether one criminal offense has merged in another is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. If a defendant commits a burglary and while in the burglarized dwelling he commits the crime of rape or kidnapping, his crimes do not merge, for neither of them is necessarily involved in the other. When one of two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both. State v. McAfee, 1967-NMSC-139, 78 N.M. 108, 428 P.2d 647.

The merger concept has aspects of the same evidence test because merger and the same evidence test are both concerned with whether more than one offense has been committed. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Prosecution for greater offense after trial for lesser offense. — Acquittal or conviction of lesser offense at former trial does not bar subsequent prosecution for greater offense, unless accused could have been convicted of the greater offense at the former trial on the same evidence as was used against him at the subsequent trial. State v. Goodson, 1950-NMSC-023, 54 N.M. 184, 217 P.2d 262.

Felony prosecution of defendant for possession of cocaine subsequent to his misdemeanor conviction and sentence in magistrate court on a plea of guilty to possession of drug paraphernalia did not violate double jeopardy. State v. Darkis, 2000-NMCA-085, 129 N.M. 547, 10 P.3d 871.

Where court in which acquittal or conviction is had for lesser offense was without jurisdiction to try accused for the greater offense, a prosecution for the greater offense is not barred. State v. Goodson, 1950-NMSC-023, 54 N.M. 184, 217 P.2d 262.

A conviction or acquittal of a lesser offense necessarily included in a greater offense bars a subsequent prosecution for the greater offense. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

A conviction of a lesser offense bars a subsequent prosecution for a greater offense, in all those cases where the lesser offense is included in the greater offense, and vice versa. State v. Medina, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486.

An acquittal of a lesser offense bars a subsequent prosecution for a greater offense where the lesser offense is included in the greater. Ex parte Williams, 1954-NMSC-005, 58 N.M. 37, 265 P.2d 359.

In order to protect the right to appeal, a defendant convicted of a lesser offense overturned on appeal may not be retried for any greater offense. A defendant would not always pursue valid grounds for appeal after conviction of a lesser charge if he knew we would face the possibility of a trial on greater charges after reversal. State v. Castrillo, 1977-NMSC-059, 90 N.M. 608, 566 P.2d 1146, overruled by State v. Wardlow, 1981-NMSC-029, 95 N.M. 585, 624 P.2d 527.

The possession of marijuana is a lesser offense necessarily included in the greater offense of distribution of marijuana, and where defendant is convicted of the lesser offense, the principles of double jeopardy bar the subsequent prosecution of the greater offense. State v. Medina, 1975-NMCA-033, 87 N.M. 394, 534 P.2d 486.

Conviction of a lesser included offense bars prosecution of a greater offense, subject to one exception: if the court does not have jurisdiction to try the crime, double jeopardy cannot attach, since double jeopardy requires that a court have sufficient jurisdiction to try the charge. Where the magistrate court had no jurisdiction to try the charge of vehicular homicide while driving while intoxicated or recklessly driving, double jeopardy should not bar the vehicular homicide by driving while intoxicated charge. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813, rev'g 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269.

A conviction or acquittal of a lesser offense necessarily included in a greater offense bars a subsequent prosecution for the greater offense. However, where the indictment against defendant was phrased in the alternative charging him with homicide by vehicle while violating either 66-8-102 NMSA 1978 or former 64-22-3, 1953 Comp., the prosecution was not barred by a conviction in a municipal court for driving under the influence since the lesser offense of driving while under the influence of intoxicating liquor is not necessarily included in the greater offense of homicide by vehicle. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813, rev'g 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269.

For an offense to be included within another offense, the offense must be necessarily included in the offense charged in the indictment, and for an offense to be necessarily included, the greater offense cannot be committed without also committing the lesser. State v. Kraul, 1977-NMCA-032, 90 N.M. 314, 563 P.2d 108, cert. denied, 90 N.M. 637, 567 P.2d 486.

For a lesser offense to be necessarily included, the greater offense cannot be committed without also committing the lesser, and in determining whether an offense is necessarily included, the court will look to the offense charged in the indictment. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

The concept of lesser included offenses is not involved in a prosecution for armed robbery and aggravated battery because either offense can be committed without committing the other offense. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

The jurisdictional exception to double jeopardy means that jeopardy cannot extend to an offense beyond the jurisdiction of the court in which the accused is tried. State v. Lujan, 1985-NMCA-111, 103 N.M. 667, 712 P.2d 13, cert. denied, 103 N.M. 740, 713 P.2d 556 (1986).

The jurisdictional exception does not permit a successive persecution for a greater offense following acquittal of a lesser included offense; the prosecution of a greater offense over which an initial court lacked jurisdiction then includes a lesser included offense for which defendant was convicted; or successive prosecution that violates the core concerns of the double jeopardy clause of protecting finality, preventing government overreaching, and reducing the risk of erroneous convictions through rehearsed prosecution. In determining whether to restrict the jurisdictional exception under particular facts, it will be necessary to assess whether there has been prosecutorial overreaching or, instead, whether the defendant has attempted to use double jeopardy as a sword. State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92.

D. MISTRIAL, DISMISSAL, APPEAL AND RETRIAL.

Declaration of mistrial over defendant’s objection must be based on manifest necessity. — When a mistrial is declared over a defendant’s objection and the jury is discharged, double jeopardy protection generally prohibits the defendant from being retried for the same offense unless the mistrial is found to have been declared for reasons of manifest necessity. To say that a mistrial is required because of "manifest necessity" means that in order to preserve the ends of public justice, it is clear and evident that terminating the trial is necessary because of something extraordinary that occurred in the trial and that alternative measures cannot alleviate the problem so that the trial can continue to an impartial verdict. State v. Yazzie, 2010-NMCA-028, 147 N.M. 768, 228 P.3d 1188.

No manifest necessity for mistrial. — Where, in defendant’s jury trial for battery on a household member, defense counsel asked the victim on cross-examination if the victim had pled guilty to battering defendant; before the victim answered the question, the prosecution objected to the question, the victim never answered the question, and the trial court sua sponte declared a mistrial; and the trial court failed to consider any alternative to declaring a mistrial, merely asking the victim whether the victim had pled guilty to battery on a household member did not warrant a mistrial over defendant’s objection and defendant’s subsequent trial subjected defendant to double jeopardy. State v. Yazzie, 2010-NMCA-028, 147 N.M. 768, 228 P.3d 1188.

Trial court did not abuse its discretion in declaring a mistrial after the disclosure of a deliberating juror's bias and where the only proposed alternative was a post-submission substitution. — Where defendant was charged and tried in magistrate court for misdemeanor DWI and failure to maintain his lane, and where the magistrate court declared a mistrial after a juror was discharged for stating that she could not be impartial after deliberations had begun and the alternate jurors had already been dismissed from the courtroom, the district court, in a de novo proceeding, did not err in denying defendant's motion to dismiss on double jeopardy grounds, because it was not an abuse of discretion for the magistrate court, after the disclosure of a deliberating juror's bias, to declare a mistrial due to manifest necessity where the proposed alternative, a post-submission substitution, would have created a presumption of prejudice and would not have alleviated or even addressed the potential taint to the remaining jurors. State v. Vanderdussen, 2018-NMCA-041.

Retrial after mistrial which is not at defendant's request. — To be balanced against the weighty interests of the defendant against retrial after declaration of a mistrial not at his request are the two considerations: (1) that there is a manifest necessity for the discharge of the first jury, or (2) that the ends of public justice would be defeated by carrying the first trial to final verdict. When the irregularity occurring at trial is of a procedural nature, not rising to the level of jurisdictional error, the necessity to discharge the jury has been held to be not manifest, but where the irregularity involves possible partiality within the jury, it has been more often held that the public interest in fair verdicts outweighs defendant's interest in obtaining a verdict by his first choice of jury. State v. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

Failure of prosecution witness to appear at trial does not constitute manifest necessity. — A prosecution witness’s failure to appear for the defendant’s trial does not constitute manifest necessity for granting a mistrial after a jury has been sworn to hear the case. State v. Gutierrez, 2014-NMSC-031, rev'g 2012-NMCA-013, 269 P.3d 905.

Where defendant was charged with criminal sexual contact with the defendant’s fifteen-year-old child; before trial defense counsel learned that, without notifying defense counsel, the prosecutor met with the victim; at the meeting, the victim attempted to recant the victim’s grand jury testimony, the prosecutor informed the victim that the victim could be prosecuted for perjury and that the victim’s child could be taken from the victim, and the prosecutor told the victim the prosecutor would transport the victim to the trial; the district court refused to hold an immediate hearing on the matter and selected and swore a jury to hear the case; the victim did not appear at trial to testify and the state could not locate the victim; and defendant did not procure the nonattendance of the victim; the district court abused its discretion in determining that there was manifest necessity for discontinuing the first trial and discharging the jury because of the failure of the prosecution witness to appear, and empaneling a new jury and retrying defendant would violate defendant’s double jeopardy protections. State v. Gutierrez, 2014-NMSC-031, rev'g 2012-NMCA-013, 269 P.3d 905.

Mistrial based on manifest necessity. — Where defendant was charged with criminal sexual contact of a minor; the 16-year-old victim testified at the grand jury hearing; the prosecutor and a special investigator interviewed the victim prior to trial to prepare the victim for trial and confirm that the victim had received a subpoena and would appear at trial; the victim recanted; the prosecutor and the investigator told the victim that the victim would be charged with perjury and that the victim’s child would be sent to a home if the victim changed the victim’s testimony, offered to find the victim a place to live if defendant’s family threatened the victim, and offered to drive the victim to the courthouse; the victim did not appear at trial; the state moved for a mistrial prior to the commencement of trial testimony; and the trial court kept the jury impaneled, considered a continuance of two weeks, and granted a mistrial only after evidence was presented that the victim left the jurisdiction voluntarily, the victim’s location was unknown and the time of the victim’s return could not be determined, there was manifest necessity for a mistrial and double jeopardy did not bar retrial of defendant. State v. Gutierrez, 2012-NMCA-013, 269 P.3d 905, rev’d, 2014-NMSC-031.

A mistrial not moved for or consented to by the defendant must be based upon a manifest necessity or jeopardy attaches preventing retrial. The power to declare a mistrial must be exercised with the greatest caution, under urgent circumstances, and for very plain and obvious reasons. There is no plain and obvious reason to declare a mistrial as to any included offense upon which the jury has reached a unanimous agreement of acquittal. State v. Castrillo, 1977-NMSC-059, 90 N.M. 608, 566 P.2d 1146, overruled by State v. Wardlow, 1981-NMSC-029, 95 N.M. 585, 624 P.2d 527.

If defendant was put in jeopardy in an original proceeding, he cannot be again put in jeopardy in the absence of some compelling reason which requires a declaration of a mistrial. State v. Moreno, 1961-NMSC-070, 69 N.M. 113, 364 P.2d 594.

Double jeopardy principles did not prevent state from retrying defendant for murder after the jury in his first trial could not reach a verdict and the judge granted a motion for a mistrial on the basis of manifest necessity. State v. Desnoyers, 2002-NMSC-031, 132 N.M. 756, 55 P.3d 968.

Upon appellate review of the declaration of a mistrial the question is whether the trial court exercised a sound discretion to ascertain that there was a manifest necessity for a mistrial. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

The law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated; they are to exercise a sound discretion on the subject, and it is impossible to define all the circumstances which would render it proper to interfere, but the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

Where, after the second day of a trial, when jury instructions had already been settled, one of the jurors was frightened by a telephone call unrelated to the trial, and the record did not show that the juror's fear involved either the state or the defendant, and showed that the juror understood that the phone call was not to influence her deliberations in the present case, it was held that the trial court failed to exercise that sound discretion required of it in determining whether a manifest necessity or proper judicial administration mandated a mistrial, and accordingly, the order of the trial court denying defendant's motion (on double jeopardy grounds) to dismiss and setting a date for retrial was reversed and defendant ordered discharged. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

Where videotape of testimony of 11-year-old victim of alleged criminal sexual penetration was inaudible at trial and child was unavailable to testify in person because of illness and possible emotional harm, there existed a "manifest necessity" for declaring a mistrial so that double jeopardy did not bar defendant's retrial. State v. Messier, 1984-NMCA-085, 101 N.M. 582, 686 P.2d 272.

When retrial after declaration of a mistrial would not create unfairness to the accused, his interest against retrial may be subordinated to the public interest in substantive justice. State v. Saavedra, 1988-NMSC-100, 108 N.M. 38, 766 P.2d 298.

The extended illness of one of the participants in a criminal proceeding justifies the declaration of a mistrial for reasons of manifest necessity. State v. Saavedra, 1988-NMSC-100, 108 N.M. 38, 766 P.2d 298.

The standard for determining the existence of manifest necessity to declare a mistrial involves carefully weighing the defendant's right to have his trial completed against the public's interest in a fair trial and just judgment. State v. Callaway, 1989-NMCA-094, 109 N.M. 564, 787 P.2d 1247, rev'd, 1990-NMSC-010, 109 N.M. 416, 785 P.2d 1035, cert. denied, 496 U.S. 912, 110 S. Ct. 2603, 110 L. Ed. 2d 283 (1990).

Manifest necessity justifying a mistrial. — Where defendant was charged with criminal sexual contact of a minor (CSCM) and battery, as a lesser included offense of CSCM, and where the jury was unable to reach a unanimous decision of guilty or not guilty on the count of CSCM, the district court did not abuse its discretion by declaring a mistrial on all offenses, and allowing retrial of the greater offense of CSCM, where it had established a clear record that the jury was deadlocked on the greater charge of CSCM. State v. Lewis, 2019-NMSC-001, aff’g 2017-NMCA-056.

Double jeopardy did not attach where the record demonstrated the jury was deadlocked on the greater charge, and therefore manifest necessity existed to declare a mistrial. — Where defendant was charged with criminal sexual contact of a minor (CSCM) and the lesser included offense of battery, and where, at trial, the district court declared a mistrial based on jury disagreement, defendant’s motion to bar retrial on the CSCM charge, based on the grounds that he received an implied acquittal and that retrial would violate his right to be free from double jeopardy, was properly denied, because the record indicated that the jury twice asked whether it should proceed to consider the battery charge if it was unable to reach a unanimous decision on the CSCM charge, and the district court twice explicitly instructed the jury not to consider the charge of battery unless the jury was unanimous that it had reasonable doubt about defendant’s guilt of CSCM, and thus the record of communications makes clear that the jury’s inability to agree on a finding of guilty or not guilty applied only to the CSCM charge. State v. Lewis, 2017-NMCA-056, cert. granted.

Juror illness. — Evidence of a juror's disability caused by the onset of a migraine headache provided manifest necessity for a mistrial. State v. Salazar, 1997-NMCA-088, 124 N.M. 23, 946 P.2d 227, cert. denied, 123 N.M. 626, 944 P.2d 274.

Mistrial on basis of "ends of public justice" test. — Where the failure of defendant to file a timely motion to suppress his statement resulted in prejudice to the state, and in such circumstances it was contrary to the ends of public justice to carry the first trial to a final verdict, the trial court did not abuse its discretion in declaring a mistrial; there was no double jeopardy. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

In determining whether a mistrial should be declared, the trial court must consider whether the ends of public justice would be defeated by carrying the first trial to a final verdict; this consideration for the ends of public justice is a concept separate from manifest necessity. State v. Aragon, 1976-NMCA-018, 89 N.M. 91, 547 P.2d 574, cert. denied, 89 N.M. 206, 549 P.2d 284, overruled by State v. Rickerson, 1981-NMSC-036, 95 N.M. 666, 625 P.2d 1183.

The standard by which courts should evaluate a prosecutor’s conduct, which causes a mistrial, to determine whether the conduct is willful is an objective one in light of the totality of the circumstances of the trial. The belief of the prosecutor regarding his or her own conduct is irrelevant to the analysis. State v. McClaugherty, 2008-NMSC-044, 144 N.M. 483, 188 P.3d 1234, aff'g 2007-NMCA-041, 141 N.M. 468, 157 P.3d 33.

Where the prosecutor, in his cross-examination of the defendant, referred to two hearsay statements that did not exist in an attempt to introduce facts not in evidence through his questions; the prosecutor did not intend to call the declarants to testify and did not disavow the district court’s misinterpretation that the declarants would testify; the prosecutor was an experienced prosecutor and is presumed to know that, where he had no intention to gain proper admission of the material, his use of inadmissible hearsay or facts not in evidence was improper and prejudicial to the defendant; and the prosecutor’s egregious conduct implied that he was aware that the consequences of his conduct would be a mistrial or reversal, the prosecutor’s misconduct was prejudicial and denied the defendant due process of law, was done with full knowledge of the impropriety of the conduct and in willful disregard of the resulting mistrial, retrial or reversal on appeal, and barred a retrial of the defendant under the double jeopardy clause. State v. McClaugherty, 2008-NMSC-044, 144 N.M. 483, 188 P.3d 1234, aff'g 2007-NMCA-041, 141 N.M. 468, 157 P.3d 33.

Conduct of judge and prosecutor did not bar retrial. — Where the defendant signed a waiver of appointed attorney pursuant to the municipal court’s practice of having defendants sign waivers of counsel regardless of whether counsel was actually available and the defendant was never advised about his right to counsel, the right against self-incrimination, the right to confront, cross-examine or compel the attendance of witnesses, or the right of appeal, the conduct of the municipal court and the prosecutor was not so unfairly prejudicial as to warrant vacation of defendant's conviction and the district court’s remand of the case to the municipal court for a new trial did not violate the double jeopardy clause. Martinez v. Chavez, 2008-NMCA-071, 144 N.M. 166, 184 P.3d 1060, cert. denied, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932.

Judicial conduct may result in a bar to retrial. — The double jeopardy clause under the New Mexico Constitution bars retrial where improper official conduct, including judicial conduct, is so unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial or a motion for a new trial, the official knows that the conduct is improper and prejudicial, and the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal. State v. Hildreth, 2022-NMSC-012, rev'g in part 2019-NMCA-047, 448 P.3d 585.

District court judge's conduct was so unfairly prejudicial that it warranted a bar to retrial. — Where defendant was charged with felony aggravated battery against a household member with great bodily harm, misdemeanor aggravated battery against a household member without great bodily harm, and unlawful taking of a motor vehicle, and where the state belatedly filed its witness list and, nine days after the discovery deadline and five days before trial, provided defendant with a CD containing audio recordings of statements made by the state's witnesses and defendant in interviews with the police, and where defense counsel, due to the late discovery, filed a motion to continue the jury trial, which was denied by the district court judge, and where, due to the denial of his motion for continuance, defense counsel appeared but refused to participate in the jury trial, including refusing to participate in jury selection, refusing to cross-examine any of the state's witnesses, and refusing to call any witnesses on behalf of defendant, and where, after two of the state's three witnesses testified, the district court judge denied defense counsel's renewed motion for a continuance despite learning on the morning of trial that the CD contained certain statements by the state's two witnesses that contradicted pretrial assertions made by the prosecutor, the judge's conduct was so unfairly prejudicial because the judge failed to undertake any measures to protect the constitutional rights of defendant and the integrity of the court, the judge knew it would be improper to proceed with the trial under the circumstances, but made a conscious and purposeful decision to proceed with trial despite any concern that his conduct could result in reversal. Under the totality of the circumstances of this case, retrial was barred because the district court judge's conduct was so unfairly prejudicial to the defendant that it could not be cured by means short of a mistrial or a motion for a new trial, the judge knew that his conduct was improper and prejudicial, and the judge acted in willful disregard of the resulting reversal. State v. Hildreth, 2022-NMSC-012, rev'g in part 2019-NMCA-047, 448 P.3d 585.

Trial judge's conduct in allowing trial to continue despite defense counsel's refusal to participate in the jury trial did not bar retrial. — Where defendant was charged with aggravated battery against a household member, and where defense counsel, due to the denial of his motion for continuance, refused to participate in defendant's trial, including refusing to participate in jury selection, refusing to cross-examine any of the state's witnesses, and refusing to call any witnesses on behalf of defendant, defendant was denied effective representation of counsel, but double jeopardy did not bar retrial because there was no official misconduct on the part of the trial judge or the prosecutor. State v. Hildreth, 2019-NMCA-047, 448 P.3d 585, rev’d in part by 2022-NMSC-012.

Prosecutor misconduct. — Where the state’s main witness in the case against defendant was arrested for selling cocaine to an undercover police officer and agreed to assist the police in pursuing defendant’s arrest; the prosecutor failed to disclose to defendant information about earlier unsuccessful attempts to purchase drugs from the state’s main witness and failed to assert any privilege in regard to that information; the prosecutor elicited the main witness’ testimony that the drug deal with the defendant was the first time the main witness ever did a drug deal; and then the prosecutor argued to the jury that the drug deal with defendant was the first time the main witness had been involved with drugs, the prosecutors’ conduct did not bar the retrial of the defendant under double jeopardy principles. State v. Cortez, 2007-NMCA-054, 141 N.M. 623, 159 P.3d 1108, cert. quashed, 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674.

Jeopardy may attach where prosecutor purposely precipitates mistrial. — Where the prosecutor engages in any misconduct for the purpose of precipitating a motion for a mistrial, gaining a better chance for conviction upon retrial, or subjecting the defendant to the harassment and inconvenience of successive trials, double jeopardy attaches. State v. Day, 1980-NMSC-032, 94 N.M. 753, 617 P.2d 142, cert. denied, 449 U.S. 860, 101 S. Ct. 163, 66 L. Ed. 2d 77 (1980).

"Purposeful" misconduct does not always create double jeopardy bar. — Where, during rebuttal argument, the prosecutor told the jury that he had been accused of withholding evidence, but that counsel for the defendant objected to the question about a prior conviction and thus succeeded in withholding evidence, this was prejudicial and purposeful misconduct, but such "purposeful" misconduct did not create a double jeopardy bar to the retrial of the defendant. State v. Day, 1980-NMSC-032, 94 N.M. 753, 617 P.2d 142, cert. denied, 449 U.S. 860, 101 S. Ct. 163, 66 L. Ed. 2d 77 (1980).

A defendant may be retried following a mistrial where defense counsel could have pursued various actions to prevent the admission of irrelevant and prejudicial testimony or to mitigate the damage done by such testimony, once admitted, and the prosecutor's improper conduct was not so unfairly prejudicial that it could not be cured by any means short of a mistrial. State v. Huff, 1998-NMCA-075, 125 N.M. 254, 960 P.2d 342, cert. denied, 125 N.M. 146, 958 P.2d 104.

Retrial not barred after mistrial. — Where a jury convicted defendant of racketeering, conspiracy to commit racketeering, and one count of conspiracy to commit drug trafficking, acquitted defendant of two counts of drug trafficking and one count of conspiracy to commit drug trafficking, and deadlocked on one count each of drug trafficking and conspiracy to commit drug trafficking, and where the district court granted defendant's motion to set aside the racketeering convictions based on erroneous jury instructions, the district court did not err in determining that double jeopardy did not prohibit defendant from being retried on the racketeering charges, because the fact that the jury deadlocked on two of the possible predicates resulted in a mistrial, not an acquittal, of the racketeering charges, and retrial is not barred when a conviction has been set aside for reasons other than insufficiency of the evidence. State v. Catt, 2019-NMCA-013, cert. denied.

Retrial permitted where defendant consented to the trial court's declaration of a mistrial based on jury deadlock. — Where defendant was charged by criminal information with a single count of homicide by vehicle, and where the district court instructed the jury on both homicide by vehicle and the lesser included offense of driving under the influence of intoxicating liquor, and where defendant's trial ended in a mistrial when the district court concluded that the jury could not reach a unanimous verdict, there was no manifest necessity to declare a mistrial on the charge of homicide by vehicle, because the record was unclear as to the level of offense on which the jury was deadlocked when the court declared the mistrial. Defendant, in this case however, consented to the district court's discharge of the jury without obtaining a verdict on the charge of homicide by vehicle and may therefore be retried on that offense. State v. Paul, 2021-NMCA-041, cert. denied.

Prosecutorial comment not bar to retrial. — Prosecutor's comments on defendant's silence during the opening statement in the first trial, while sufficient to merit a mistrial, was not sufficiently egregious to bar retrial. State v. Foster, 1998-NMCA-163, 126 N.M. 177, 967 P.2d 852, cert. denied, 126 N.M. 533, 972 P.2d 352.

Double jeopardy did not bar reprosecution where a mistrial was declared on motion of defendants for the prosecutor's discovery abuses because the defendants failed to show why any prejudice resulting from the prosecutor's late disclosure could not have been cured by a remedy short of a mistrial. State v. Lucero, 1999-NMCA-102, 127 N.M. 672, 986 P.2d 468, cert. denied, 128 N.M. 149, 990 P.2d 823.

Prohibiting retrial following mistrial for prosecutorial misconduct. — Retrial is barred when improper official conduct is so unfairly prejudicial that it cannot be cured by means short of a mistrial or a motion for a new trial, and the official knows that the conduct is improper and prejudicial and the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal. State v. Breit, 1996-NMSC-067, 122 N.M. 655, 930 P.2d 792.

Prosecutorial misconduct was sufficiently egregious to bar retrial. — Where defendant was convicted of two counts of criminal sexual contact of a minor and one count of child abuse, and where the district court ordered a new trial due to prosecutorial misconduct and ineffective assistance of counsel, the district court erred in denying defendant's motion to bar retrial on double jeopardy grounds, because the prosecutor acted in willful disregard of the resulting mistrial or reversal when he improperly represented defendant's conditional discharge as a felony conviction to impeach defendant, then used the inadmissible evidence to impeach defendant's credibility during closing arguments where defendant's credibility was critical, repeatedly called defendant a pedophile, mentioned the Catholic church abuse scandal, inverted the reasonable doubt standard, and shifted the burden of proof to defendant. The prosecutor's willful disregard of a mistrial or reversal in exposing the jury to inadmissible, prejudicial evidence was sufficiently egregious to trigger the bar of double jeopardy. State v. Amador, 2024-NMSC-006, rev'g A-1-CA-38665, mem. op. (N.M. Ct. App. July 19, 2021) (nonprecedential).

Prosecutorial misconduct resulted in a double jeopardy bar to retrial. — Prosecutorial misconduct rises to the level of fundamental error when it is so egregious and had such a persuasive and prejudicial effect on the jury's verdict that the defendant was deprived of a fair trial. An assistant district attorney who uses opening statements to expose the jury to incriminating allegations from a non-testifying codefendant, repeatedly accuses a defendant of witchcraft, and relies on inflammatory and inadmissible evidence throughout the case, has knowingly committed misconduct so unfairly prejudicial and with such willful disregard for a reversal on appeal that retrial is barred by double jeopardy. State v. Lensegrav, 2025-NMSC-016.

Prosecutorial and judicial misconduct barred retrial. — Where defendant was charged in the city of Las Cruces municipal court with aggravated driving while intoxicated, driving on the wrong side of the street, improper turn, and open container, and where, prior to trial, the city produced four video recordings to defendant without identifying what it intended to introduce at trial, and where, at trial, the city called the arresting officer as a witness and moved to admit one of the video recordings into evidence through the witness's identification without clarifying to defendant or to the municipal court which of the four video recordings the city was attempting to admit at trial, and where defendant repeatedly objected to the admission of the unidentified video recording and repeatedly requested that the recording be played in open court, requests which were denied by the municipal court judge, and where the municipal court judge, over defendant's objection, reviewed the video recording privately outside the presence of counsel, and where the district court, on appeal from the municipal court, found that the misconduct by the prosecutor and the municipal court judge violated the double jeopardy clause of the New Mexico constitution, and therefore precluded retrial in the district court, the district court was authorized to hear and decide defendant's pretrial motion to bar retrial, because the nature of defendant's motion, stating a claim for official misconduct at trial, which, if established at a hearing de novo in the district court, would fully dispose of the charges against defendant and bar retrial in the district court. City of Las Cruces v. Apodaca, 2022-NMCA-046.

Prosecutorial conduct did not bar a retrial. — Where defendant was charged with criminal sexual contact of a minor; the 16-year-old victim testified at the grand jury hearing; the prosecutor and a special investigator interviewed the victim prior to trial to prepare the victim for trial; the victim recanted; the prosecutor and the investigator told the victim that the victim’s change in testimony might cause the victim to be charged with perjury and that the victim’s child might be sent to a home, and advised the victim to tell the truth; the victim fled the jurisdiction and did not appear at the trial; the prosecutor did not know that the victim would flee as a result of the interview; and the trial court granted a mistrial, the state did not commit prosecutorial misconduct during the interview and double jeopardy did not bar retrial of defendant. State v. Gutierrez, 2012-NMCA-013, 269 P.3d 905, rev’d, 2014-NMSC-031.

To bar a retrial on double jeopardy grounds, the misconduct must be extraordinary. — Where defendant was charged with multiple crimes following a two-vehicle collision, including homicide by vehicle, great bodily harm by vehicle, driving under the influence of intoxicating liquor or drugs, and reckless driving, and where, prior to trial, the district court judge specifically excluded by motion in limine hearsay testimony that defendant had confessed to another officer about being behind the wheel at the time of the accident, and where, at trial, the officer failed to adhere to the court’s admonishment, double jeopardy did not bar a retrial where it was the state’s witness, not the prosecutor, that injected the precluded testimony into the trial, and where there was no evidence that the prosecutor intentionally elicited testimony about the purported confession that had been suppressed. State v. Hernandez, 2017-NMCA-020, cert. denied.

Statements not in "willful disregard" of mistrial. — Prosecutorial statements as to defendant's post-arrest silence, although they were improper and warranted mistrial and possibly other sanctions, did not rise to the level of "willful disregard" of the possibility of mistrial so as to justify dismissal on double jeopardy grounds. State v. Pacheco, 1998-NMCA-164, 126 N.M. 278, 968 P.2d 789, cert. denied, 126 N.M. 533, 972 P.2d 352.

Prosecutor's comments on and use of defendant's pre-arrest silence did not equate to the level of prosecutorial misconduct required to bar retrial. — Where defendant was charged with numerous counts of criminal sexual penetration of a minor (CSPM), one count of attempt to commit CSPM, and one count of intimidation of a witness, and where, at trial, the prosecutor, during every phase of the proceeding, in opening statement, during direct examination of the detective, while cross-examining defendant, during his closing argument, and finally in rebuttal, commented on defendant's invocation of his fifth amendment right to remain silent during his voluntary, pre-arrest interview with the investigating detective, the prosecutor's comments violated defendant's fifth amendment right to remain silent, but the record does not suggest that the prosecutor knew his comments were improper or in any way intended to provoke a mistrial, or that he acted in willful disregard of such under the Breit test. State v. Costillo, 2020-NMCA-051.

Number of trials not, per se, barred. — The number of trials involving the same defendant upon the same charges does not, per se, set up a double jeopardy bar. State v. Day, 1980-NMSC-032, 94 N.M. 753, 617 P.2d 142, cert. denied, 449 U.S. 860, 101 S. Ct. 163, 66 L. Ed. 2d 77 (1980).

Mistrial or new trial continues the jeopardy. — A mistrial or a new trial secured by plaintiff or defendant continues the jeopardy and does not renew it. State v. Spillmon, 1976-NMSC-048, 89 N.M. 406, 553 P.2d 686.

Mistrial on one of joined charges. — After a jury found the defendant guilty of driving while intoxicated but was unable to reach a verdict on a vehicular homicide count, the subsequent retrial of vehicular homicide did not subject the defendant to double jeopardy, as such an action could be characterized as a continuing prosecution of the vehicular homicide charge. State v. O'Kelley, 1991-NMCA-049, 113 N.M. 25, 822 P.2d 122, cert. quashed, 113 N.M. 24, 822 P.2d 121.

Retrial after a mistrial is not barred by double jeopardy unless the mistrial was caused by prosecutorial overreaching. State v. Mazurek, 1975-NMCA-066, 88 N.M. 56, 537 P.2d 51.

Retrial after mistrial of lesser included offense not charged in the indictment. — Where defendant, who injured a horse, causing the horse’s death, was indicted for felony extreme cruelty to animals; at defendant’s trial, the district court, at the state’s request and without objection from defendant, instructed the jury on the lesser included offense of misdemeanor cruelty to animals; the jury acquitted defendant of the felony charge; and the district court declared a mistrial on the misdemeanor charge due to jury deadlock, the state could retry defendant on the misdemeanor charge, which was not explicitly charged in the indictment, without violating defendant’s double jeopardy rights, because the mistrial did not terminate the jeopardy that attached to the misdemeanor charge. State v. Collier, 2013-NMSC-015, 301 P.3d 370.

Contemporaneous written order declaring mistrial not required. — Defendant was not subjected to double jeopardy because of the failure of the trial judge to enter a contemporaneous written order declaring a mistrial and reserving the case for retrial. State v. Reyes-Arreola, 1999-NMCA-086, 127 N.M. 528, 984 P.2d 775, cert. denied, 127 N.M. 390, 981 P.2d 1208.

Where record is silent as to why first case ended in mistrial, an appellate court cannot say there was no compelling reason for the trial court granting a mistrial; therefore, the court of appeals cannot say the trial court erred in denying the claim of double jeopardy. State v. Wesson, 1972-NMCA-013, 83 N.M. 480, 493 P.2d 965.

Alternatives to declaration of mistrial. — Where there is no manifest necessity for declaring a mistrial, the trial court has some duty to inquire as to possible alternatives thereto. Affecting the scope of inquiry required are the factors of magnitude of prejudice and the point at which the proceedings are terminated, and as the magnitude of possible prejudice increases, less effort need be expended in seeking alternative resolutions, while conversely, as the length of trial wears on, more effort should be expended. State v. C. De Baca, 1975-NMCA-120, 88 N.M. 454, 541 P.2d 634, cert. denied, 89 N.M. 6, 546 P.2d 71.

A trial court has a duty to inquire into the alternatives before declaring a mistrial. The court, however, is not required to make a detailed record of each alternative considered before declaring a mistrial. State v. Callaway, 1989-NMCA-094, 109 N.M. 564, 787 P.2d 1247, rev'd, 1990-NMSC-010, 109 N.M. 416, 785 P.2d 1035, cert. denied, 496 U.S. 912, 110 S. Ct. 2603, 110 L. Ed. 2d 283 (1990).

Discharging hung jury. — The court in the trial of criminal cases is vested with a large discretion as to the time allowed to a jury to deliberate and as to the time to discharge a hung jury. There is no fixed rule laid down to control this discretion and unless it has been grossly abused, a plea of former jeopardy cannot be sustained. State v. Brooks, 1955-NMSC-002, 59 N.M. 130, 279 P.2d 1048.

Double jeopardy did not attach where preliminary verdict forms finding defendant not guilty were not rendered by the jury in open court and accepted by the court. — Where defendant was tried on an indictment charging a number of offenses related to a carjacking in which the victim was beaten and shot to death, and where the jury submitted a package of verdict forms to the trial judge who, after reviewing the verdict forms and noticing that certain verdict forms were necessarily in conflict, returned the verdict forms to the jurors and, without the knowledge or participation of the parties, directed the jurors to read the instructions again and clarify their verdicts, and where the jury returned revised verdict forms to the trial court finding defendant guilty of numerous charges, including murder and armed robbery, and where the trial court ordered a new trial in the interest of justice because of the improper ex parte communications with the jury, retrial of the murder and armed robbery counts would not constitute double jeopardy, despite the fact that the jury signed the not guilty forms for these counts, announced it had reached verdicts, and handed the forms to the trial judge prior to the trial judge's ex parte communication, because a verdict is not final until it is rendered by the jury in open court and accepted by the court. State v. Aguilar, 2019-NMSC-017.

Dismissal for insufficient evidence is an acquittal. — Where the municipal court found defendant guilty of driving while intoxicated in violation of a municipal ordinance; defendant appealed to the district court for a de novo trial; defendant did not assert at any point prior to the close of the municipality’s case that the arresting officer lacked reasonable suspicion to initiate the DWI investigation and did not move to suppress the evidence flowing from the investigation; and after the municipality rested its case, the district court ruled that the arresting officer’s DWI investigation was unlawful, suppressed all evidence from the investigation, and dismissed the DWI charges against defendant, implicitly holding that the evidence was insufficient to support defendant’s conviction of DWI, the municipality’s appeal was barred by double jeopardy because the municipality had presented evidence against defendant to the district court and was barred from retrying defendant. City of Santa Fe v. Marquez, 2012-NMSC-031, 285 P.3d 637.

When the trial court excluded evidence for lack of foundation and determined that the evidence was insufficient to proceed against the defendant, the defendant was acquitted and double jeopardy does not allow the state to appeal the dismissal of the case based on a judge’s decision to exclude evidence for lack of foundation. State v. Lizzol, 2007-NMSC-024, 141 N.M. 705, 160 P.3d 886, rev'g 2006-NMCA-130, 141 N.M. 721, 160 P.3d 902.

Jeopardy does not attach where trial court dismisses the criminal information prior to the presentation of evidence. — Where defendant was charged with fraud, and after the state’s opening statement on the morning of defendant’s bench trial, but before the state presented any evidence, the district court granted defense counsel’s motion to dismiss the charge on the basis that the state would not be able to prove the elements of fraud beyond a reasonable doubt, jeopardy did not attach, because the district court terminated the case after the state’s opening statement and before any witness was sworn. Accordingly, the district court’s dismissal of the information was a procedural dismissal and not an acquittal. State v. Pacheco, 2017-NMCA-014.

Procedural dismissals do not invoke double jeopardy protections. — Not all terminations of a criminal trial invoke double jeopardy protections. A defendant who obtains the termination of the proceedings against him in the trial court without any finding by a court or jury as to his guilt or innocence has not invoked his right to be free from double jeopardy. The state is entitled to appeal a final order dismissing its case on a procedural ground. Rulings that do not constitute true acquittals do not preclude continued prosecution. State v. Baca, 2015-NMSC-021, rev’g 2013-NMCA-060, 303 P.3d 858.

Dismissal unrelated to the sufficiency of the state’s evidence did not trigger an acquittal, and double jeopardy does not bar continued prosecution. — In a DWI trial, where the magistrate judge’s amended order of dismissal stated that defendant was acquitted, but where the record revealed that the magistrate judge, on defendant’s motion, suppressed one witness’s testimony and terminated the trial as sanctions for the state’s violation of Rule 6-506A NMRA, the judge’s order suppressing the testimony of the arresting officer as a sanction for the state’s rule violation was not an evaluation of the sufficiency of the state’s evidence, and the order of dismissal did not consider the potential testimony of the state’s remaining witnesses or make any other determination that the state’s evidence was insufficient to prove defendant had been driving under the influence of alcohol. The violation of Rule 6-506A NMRA was a procedural defect that did not trigger an acquittal because it was unrelated to the sufficiency of the state’s evidence. The double jeopardy clause does not bar continued prosecution of defendant’s DWI charge, because defendant’s trial was terminated without a true determination of guilt or innocence. State v. Baca, 2015-NMSC-021, rev’g 2013-NMCA-060, 303 P.3d 858.

Dismissal for insufficient evidence is an acquittal. — Where the state filed a complaint in magistrate court against defendant for aggravated driving while intoxicated, but failed to comply with Rule 6-506 NMRA; after the arresting officer testified on direct examination, defendant asserted that the complaint failed to comply with Rule 6-506 NMRA and as a sanction, the magistrate court suppressed the officer’s testimony; defendant then moved for a directed verdict; the magistrate court determined that the evidence was insufficient to prove the charge against defendant and dismissed the case with prejudice; and even though additional prosecution witnesses were waiting to testify, the prosecutor failed to make an offer of proof, the magistrate court’s dismissal constituted an acquittal and the state was barred from appealing to the district court on the basis that the magistrate court’s suppression order was erroneous. State v. Baca, 2013-NMCA-060, 303 P.3d 858, cert. granted, 2013-NMCERT-005.

Dismissal for insufficient evidence precludes retrial on lesser included offense. — Where the state elected to charge defendant with attempted first degree murder and not to instruct the jury on attempted second degree murder; and defendant’s conviction of attempted first degree murder was reversed and the sentence vacated because the evidence was insufficient to support the conviction, defendant’s double jeopardy rights barred retrial of defendant for the lesser include charge of attempted second degree murder. State v. Slade, 2014-NMCA-088, cert. granted, 2014-NMCERT-008.

Mistrial on one of two separate charges. — Since the defendant was charged with attempted murder and aggravated battery and was convicted of aggravated battery, and since the two offenses were in separate counts and the jury was not instructed that it could convict on only one offense, its inability to return a verdict on the attempted murder charge was not an implicit acquittal and the state was not barred from pursuing an attempted murder charge on remand. State v. Martinez, 1995-NMSC-064, 120 N.M. 677, 905 P.2d 715.

Retrial after acquittal by court lacking jurisdiction. — After the defendant's acquittal in a court lacking proper jurisdiction, the constitutional prohibitions against double jeopardy would not be violated by a retrial. State v. Hamilton, 1988-NMCA-023, 107 N.M. 186, 754 P.2d 857, cert. denied, 107 N.M. 132, 753 P.2d 1320.

Retrial after release for lack of jurisdiction. — Where defendant served more than a year for prior conviction of larceny before being released on habeas corpus due to lack of jurisdiction, subsequent trial for same offense did not constitute double jeopardy. State v. Paris, 1966-NMSC-039, 76 N.M. 291, 414 P.2d 512.

Retrial on same charges. — Where, in defendant’s first trial, defendant was charged with first degree murder under the alternative theories of felony murder and depraved mind murder; the jury returned a general verdict of first degree murder, but did not specify whether the verdict was based on felony murder, depraved mind murder or both; the judgment and sentence of the district court indicated that defendant was found guilty of murder in the first degree; defendant’s conviction was reversed and the state refiled the charges; in the second trial, defendant was tried under both theories and convicted of felony murder; the jury did not enter a verdict on depraved mind murder; and defendant argued that because the judgment and sentence in the first trial stated that defendant was guilty of felony murder, defendant was implicitly acquitted of depraved mind murder and double jeopardy precluded the state from prosecuting defendant for depraved mind murder in the second trial, defendant’s double jeopardy rights were not violated when defendant was retried for first degree murder under felony murder and depraved mind murder theories. State v. Torrez, 2013-NMSC-034.

No implied acquittal of greater offense. — Where the state brought charges of vehicular homicide and driving while intoxicated as separate counts, as opposed to lesser-included offenses, the jury's conviction of the defendant for driving while intoxicated and deadlock on vehicular homicide did not constitute an implied acquittal of vehicular homicide. An implied acquittal generally occurs when the jury is instructed to choose between a greater and a lesser offense, and chooses the lesser. State v. O'Kelley, 1991-NMCA-049, 113 N.M. 25, 822 P.2d 122, cert. quashed, 113 N.M. 24, 822 P.2d 121.

Dismissal of felony charge by magistrate does not result in an acquittal because the magistrate court has no jurisdiction to try felony charges. Consequently, a subsequent indictment is not barred even if the magistrate determines in a preliminary hearing that there is no probable cause to bind over for trial in the district court. Moreover, since the magistrate court has no such jurisdiction, no double jeopardy problem can arise. State v. Peavler, 1975-NMSC-035, 88 N.M. 125, 537 P.2d 1387, rev'g 87 N.M. 443, 535 P.2d 650.

Retrial due to error in proceedings. — The former jeopardy clause of the constitution does not preclude a retrial of a defendant whose sentence is set aside because of an error in the proceedings leading to the sentence or conviction. State v. Herrera, 1972-NMCA-154, 84 N.M. 365, 503 P.2d 648; State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768.

The former jeopardy clause of the constitution does not preclude a retrial of a defendant whose sentence is set aside because of an error in the proceedings leading to the sentence or conviction. This is equally true where the conviction is overturned on collateral rather than direct attack, by petition for habeas corpus for example. State v. Nance, 1966-NMSC-207, 77 N.M. 39, 419 P.2d 242, cert. denied, 386 U.S. 1039, 87 S. Ct. 1495, 18 L. Ed. 2d 605 (1967), abrogated State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315.

Double jeopardy bars retrial after acquittal but permits retrial after a conviction is reversed for trial error. — Where defendant was convicted of first-degree felony murder based on the predicate felony of aggravated assault, and where defendant's conviction was vacated for violating the collateral-felony doctrine, retrial was not barred because double jeopardy bars retrial after acquittal but permits retrial after a conviction is reversed for trial error. State v. Revels, 2025-NMSC-021, abrogating State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174 and State v. Baca, 1997-NMSC-059, 124 N.M. 333, 950 P.2d 776.

Sufficient evidence of intentional child abuse. — Where defendant’s conviction for intentional child abuse resulting in the death of a child under the age of 12 was reversed because the jury was improperly instructed as to the elements of the offense; defendant did not dispute that the child died due to a blunt force injury to the head and that the cause of death was homicide; in two police interviews, defendant admitted harming the child on the day and night of the incident; and in a third police interview, defendant stated that defendant’s friend harmed the child, there was sufficient evidence from which the jury could have found beyond a reasonable doubt that defendant intentionally abused the child and a retrial was not barred by double jeopardy. State v. Cabezuela, 2011-NMSC-041, 150 N.M. 654, 265 P.3d 705.

No jeopardy where case not tried on merits. — Where metropolitan court granted defendant's motion to dismiss charges of neglect on the grounds that defendant did not meet the statutory definition of a "care facility," but the case was not heard on its merits, jeopardy did not attach and the state could appeal without violating defendant's double jeopardy rights. State v. Davis, 1998-NMCA-148, 126 N.M. 297, 968 P.2d 808.

Retrial after nullification of former conviction. — Where former conviction of murder was nullified in a habeas corpus proceeding, effects of former proceeding were as if there had been no former trial and defendant could properly be tried again for murder without violating the double jeopardy provision of the constitution. Trujillo v. State, 1968-NMSC-179, 79 N.M. 618, 447 P.2d 279.

Trial de novo after magistrate court conviction. — In a trial de novo resulting from a defendant’s appeal of a magistrate court conviction, the district court had jurisdiction as well as a constitutional and statutory obligation to consider the defendant’s pretrial double jeopardy claim. State v. Foster, 2003-NMCA-099, 134 N.M. 224, 75 P.3d 824, cert. denied, 134 N.M. 179, 74 P.3d 1071.

New charges following discharge on habeas corpus. — Having pleaded guilty when first arraigned, and having been discharged on habeas corpus, defendant is not placed in jeopardy a second time, contrary to his rights under this section of the constitution, when he is returned and new charges are filed following transfer from juvenile court. Neller v. State, 1968-NMSC-130, 79 N.M. 528, 445 P.2d 949.

Appeal by defendant. — The constitutional protection against double jeopardy does not prevent a second trial for the same offense when the defendant himself, by an appeal, has invoked the action which resulted in the second trial. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768.

Alternative charges do not involve concept of double jeopardy. — The concept of double jeopardy is not involved in charging defendant with fraud or in the alternative embezzlement since the charges are in the alternative, nor are the concepts of included offenses, same evidence or merger. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113.

Trial de novo on alternative means of committing offense did not violate double jeopardy. — When a defendant is convicted based on one of two alternative means of committing a single crime, there is not an implied acquittal of the other alternative unless the conviction logically excludes guilt of the other alternative; if there is no implied acquittal, there is no constitutional prohibition against retrial of both alternatives after a conviction is set aside. State v. Ben, 2015-NMCA-118, cert. denied, 2015-NMCERT-011.

Where defendant was charged in magistrate court with multiple means of committing DWI, per se DWI and impaired to the slightest degree, and was convicted on the per se theory of DWI, defendant’s double jeopardy rights were not violated when he was retried de novo on the impaired theory in the district court, because his conviction on the per se theory of DWI was not logically inconsistent with a finding of impaired DWI. State v. Ben, 2015-NMCA-118, cert. denied, 2015-NMCERT-011.

Jeopardy did not attach where indictment dismissed. — Double jeopardy had not attached so as to prevent reconsideration where the indictment was dismissed with prejudice due to preindictment delay, but the court subsequently set aside its dismissal order and reinstated the indictment. State v. Gonzales, 1990-NMCA-040, 110 N.M. 218, 794 P.2d 361, aff'd, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630.

Dismissal of a charge by the district attorney in no way precludes the district attorney from subsequently informing against and prosecuting defendant for the same offense. State v. Mares, 1968-NMCA-042, 79 N.M. 327, 442 P.2d 817.

Erroneous dismissal of charges. — Where, after defendant's trial, trial court erroneously entered order of dismissal of criminal charges on the ground that the state's evidence failed to support a verdict, but rather had intended to dismiss the charges for lack of venue, trial court did not decide any factual elements of the criminal charges and although jeopardy attached once the jury was empaneled and sworn, jeopardy was not terminated by the erroneous order of dismissal and did not bar the state's right to appeal the order of dismissal for lack of venue. State v. Roybal, 2006-NMCA-043, 139 N.M. 341, 132 P.3d 598, cert. denied, 2006-NMCERT-003, 139 N.M. 353, 132 P.3d 1039.

Consideration of double jeopardy claim following second appeal. — When the trial court's decision that double jeopardy barred reprosecution of the defendant was reversed by the court of appeals, the law of the case doctrine did not bar consideration of the double jeopardy issue on appeal of the defendant's conviction at the second trial. State v. Breit, 1996-NMSC-067, 122 N.M. 655, 930 P.2d 792.

E. SPECIFIC OFFENSES.

1. HOMICIDE, ASSAULT AND BATTERY, HARASSMENT, KIDNAPPING.

Conviction of felony murder and acquittal of second-degree murder for the same homicide violated double jeopardy. — Where defendant and defendant’s companions were accosted by a rival gang in front of defendant’s family home, guns were pulled on both sides and defendant’s sibling was severely wounded by gunshots in the leg and abdomen; while defendant’s group were trying to help defendant’s sibling in the driveway and stop the bleeding from the gunshot wounds, the person in the rival gang who had been shooting at defendant and defendant’s companions returned in a Ford Expedition; when defendant saw gunfire coming from the Expedition, defendant ran into the house and retrieved an AK-47 rifle and began shooting at the Expedition; the driver of Expedition was shot seven times and died; the jury convicted defendant of heat-of-passion voluntary manslaughter, rather than second-degree murder, and of first-degree felony murder for the same homicide; and the jury deliberated and decided whether defendant committed second-degree murder as a lesser included offense of the alternative theory of first-degree murder, defendant’s acquittal of second-degree murder constitutionally protected defendant from further prosecution for that offense, whether in a stand-alone count, as a stepdown from deliberate first-degree murder, or as a component of felony murder. State v. Montoya, 2013-NMSC-020, 306 P.3d 426.

Causing death or great bodily harm by shooting into a dwelling and first-degree murder for the same death. — Where defendant was convicted of shooting at a dwelling resulting in death or great bodily harm and first-degree murder for the same death after he fired nine gunshots into a home intending to kill a certain person, but instead killed a ten-year-old boy who shared a bedroom with the intended victim, defendant’s double jeopardy rights were violated, because causing death or great bodily harm by shooting into a dwelling and the crime of first-degree murder are directed at punishing the same social evil, causing death or bodily harm to a person, establishing that the legislature did not intend to subject defendant to multiple punishments for the killing of a single victim. State v. Torres, 2018-NMSC-013.

Murder and shooting from a motor vehicle predicated on unitary conduct. — In defendant's first-degree murder trial for the killing of a police officer, convictions for both first degree murder of the officer and for causing great bodily harm to the officer by shooting from a motor vehicle violated defendant's double jeopardy rights where both convictions were predicated on defendant's unitary act of shooting the officer. State v. Romero, 2019-NMSC-007.

First-degree murder and attempted first-degree murder related to different victims. — Where defendant was convicted of first-degree murder and attempted first-degree murder after he fired nine gunshots into a home intending to kill a certain person, but instead killed a ten-year-old boy who shared a bedroom with the intended victim, defendant’s double jeopardy rights were not violated, because defendant was convicted of murdering the ten-year-old boy and for attempting to murder the boy’s older brother; the unit of prosecution in the murder statute is dependent on the number of victims, and it follows that the legislature intended the unit of prosecution for attempted murder to also depend on the number of victims targeted in the attempt, and because there were two victims in this case, the two convictions for the crimes committed against each victim do not constitute multiple punishments for the same offense in violation of the double jeopardy protections. State v. Torres, 2018-NMSC-013.

Conspiracy to commit first-degree murder and conspiracy to shoot at a dwelling. — Where defendant was convicted of conspiracy to commit first-degree murder and conspiracy to shoot at a dwelling in an attempt to commit the murder after he fired nine gunshots into a home intending to kill a certain person, but instead killed a ten-year-old boy who shared a bedroom with the intended victim, defendant’s double jeopardy rights were violated, because the legislature established a rebuttable presumption that multiple crimes are the object of only one, overarching, conspiratorial agreement subject to one, severe punishment set at the highest crime conspired to be committed, and in the present case, the state presented no evidence to rebut the presumption that the agreement to murder the intended victim and the agreement to shoot at a dwelling to accomplish that goal were the objects contemplated by one conspiratorial crime. State v. Torres, 2018-NMSC-013.

First-degree murder and conspiracy to commit first-degree murder. — Where defendant was convicted of first-degree murder, conspiracy to commit first-degree murder, arson, and tampering with evidence due to his involvement in the murder of a man, and where defendant claimed on appeal that his convictions for first-degree murder and conspiracy to commit first-degree murder violated double jeopardy because they arose from the same conduct, claiming that his involvement in the murder was that of an accessory whose actions in the course of the murder did not extend beyond the words or acts that formed the conspiracy to commit the murder, defendant’s double jeopardy right was not violated where the evidence established that defendant and his co-conspirators discussed killing the victim, and later when the victim showed up at defendant’s house, defendant participated in the beating of the victim. Defendant’s conduct underlying his convictions for first-degree murder and conspiracy to commit first-degree murder was separated by time and space and was therefore not unitary. State v. Chavez, 2021-NMSC-017.

Defendant's convictions of criminal conspiracy and criminal solicitation do not violate double jeopardy protections. — Where defendant was convicted of conspiracy to commit first-degree murder and criminal solicitation of first-degree murder, his convictions did not violate double jeopardy protections where the solicitation and conspiracy convictions were based on entirely distinct conduct. State v. Cardenas, 2025-NMSC-020.

Double jeopardy was not violated by defendant's convictions for shooting at a motor vehicle and aggravated assault. — Where defendant was convicted of aggravated assault and shooting at a motor vehicle, his convictions did not violate double jeopardy protections where the conduct underlying the aggravated assault conviction was not unitary with the conduct underlying the shooting at a motor vehicle conviction. The evidence established that defendant completed the crime of aggravated assault when he brandished the gun and caused the victim to reasonably fear for her safety. This action (brandishing) and consequence (reasonable fear) constitute the entire crime of aggravated assault, and the shooting at a motor vehicle had not yet begun at the time the aggravated assault was already completed. State v. Revels, 2025-NMSC-021, abrogating State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174 and State v. Baca, 1997-NMSC-059, 124 N.M. 333, 950 P.2d 776.

Aggravated battery upon a peace officer and attempted first degree murder. — Where defendant, who was imprisoned in a county detention center, attacked and stabbed a correctional officer five times with a metal shank, defendant’s convictions for attempted murder and aggravated battery of a peace officer did not violate double jeopardy. State v. Urquizo, 2012-NMCA-113, 288 P.3d 919, cert. granted, 2012-NMCERT-011, 297 P.3d 1226.

Defendant’s convictions for attempted murder and assault on a peace officer based on unitary conduct did not violate double jeopardy. — Where defendant was convicted of two counts of attempted first-degree murder and two counts of assault on a peace officer based on evidence that defendant fired multiple gunshot at officers following a prolonged high-speed chase, and where defendant argued that his convictions for attempted first-degree murder and assault on a peace officer violated his right to be free from double jeopardy, defendant’s double jeopardy rights were not violated, because although the conduct underlying the offenses was unitary as to the shots fired toward each officer, New Mexico courts have repeatedly held that the general prohibition against homicide is different than the specific prohibitions impeding peace officers in the discharge of their duties, demonstrating that the legislature has created additional protections for peace officers. State v. Crawford, 2026-NMCA-046, cert. denied.

Aggravated battery upon a peace officer and aggravated assault upon a peace officer. — Where police officers attempted to execute a search of defendant’s residence pursuant to a warrant, and where, as officers approached a camper on the property, the officers heard and saw gunfire coming from the camper, striking one of the officers, defendant’s convictions for both aggravated assault upon a peace officer and aggravated battery upon a peace officer did not violate his right to be free from double jeopardy, because although defendant’s conduct in shooting at or, under a theory of accessory liability, encouraging others to shoot at more than one person many times, was unitary, the two crimes address distinct social evils and both distinct social harms arose when multiple shots were fired at the officers, causing them fear and mental anguish, including the officer who was struck by a bullet who was both fearful of being struck and then actually struck by one of the bullets. State v. Uribe-Vidal, 2018-NMCA-008.

Conduct underlying battery upon a peace officer and aggravated assault upon a peace officer was not unitary. — Where defendant was convicted of battery upon a peace officer, aggravated assault upon a peace officer (deadly weapon), aggravated fleeing a law enforcement officer, reckless driving, resisting, evading or obstructing an officer, and leaving the scene of an accident, based on an encounter with police officers in Albuquerque, New Mexico, and where the district court dismissed defendant's reckless driving conviction on double jeopardy grounds, and where defendant claimed that several of his six remaining convictions were based on the same conduct and violated double jeopardy, defendant's convictions for battery upon a peace officer and aggravated assault upon a peace officer did not violate double jeopardy, because the conduct underlying defendant's convictions was not unitary; there was a significant difference in the quality and nature of an act of physically touching an officer, using enough force to pull his body into a truck, the battery established by the state in this case, and causing the officer, by driving recklessly, to fear falling to the road and being injured. Moreover, the battery happened at the location of the original encounter between defendant and police, and the assault began as defendant accelerated away and continued as defendant drove recklessly, apparently trying to rid himself of the officer and avoid arrest. State v. Nieto, 2023-NMCA-072.

Aggravated fleeing a law enforcement officer and resisting, evading or obstructing an officer. — Where defendant was convicted of battery upon a peace officer, aggravated assault upon a peace officer (deadly weapon), aggravated fleeing a law enforcement officer, reckless driving, resisting, evading or obstructing an officer, and leaving the scene of an accident, based on an encounter with police officers in Albuquerque, New Mexico, and where the district court dismissed defendant's reckless driving conviction on double jeopardy grounds, and where defendant claimed that several of his six remaining convictions were based on the same conduct and violated double jeopardy, defendant's convictions for aggravated fleeing a law enforcement officer and resisting, evading or obstructing an officer violated double jeopardy, because evidence of defendant's conduct in fleeing on foot from the officer, used to convict defendant of resisting, evading or obstructing an officer, was not separate and distinct from evidence of defendant's conduct in fleeing from the officer by motor vehicle, which was used to convict defendant of fleeing an officer; all of the elements of resisting, evading or obstructing an officer by fleeing the officer on foot were subsumed within the greater offense of aggravated fleeing an officer, and therefore defendant's conviction of both violated double jeopardy. State v. Nieto, 2023-NMCA-072.

Convictions for leaving the scene of an accident and aggravated fleeing a law enforcement officer do not violate double jeopardy. — Where defendant was convicted of battery upon a peace officer, aggravated assault upon a peace officer (deadly weapon), aggravated fleeing a law enforcement officer, reckless driving, resisting, evading or obstructing an officer, and leaving the scene of an accident, based on an encounter with police officers in Albuquerque, New Mexico, and where the district court dismissed defendant's reckless driving conviction on double jeopardy grounds, and where defendant claimed that several of his six remaining convictions were based on the same conduct and violated double jeopardy, defendant's convictions for leaving the scene of an accident and aggravated fleeing a law enforcement officer did not violate double jeopardy, because the conduct necessary to prove aggravated fleeing as presented by the state and argued to the jury included conduct different from the conduct necessary to prove the crime of leaving the scene of an accident. It is presumed that the legislature intended multiple punishments if the state is required under its theory of the case to present proof of conduct for each crime that was different and distinct from the conduct required under the state's theory to establish the other crime. State v. Nieto, 2023-NMCA-072.

Aggravated assault upon a peace officer and aggravated fleeing a law enforcement violated double jeopardy. — Where defendant was convicted of battery upon a peace officer, aggravated assault upon a peace officer (deadly weapon), aggravated fleeing a law enforcement officer, reckless driving, resisting, evading or obstructing an officer, and leaving the scene of an accident, based on an encounter with police officers in Albuquerque, New Mexico, and where the district court dismissed defendant's reckless driving conviction on double jeopardy grounds, and where defendant claimed that several of his six remaining convictions were based on the same conduct and violated double jeopardy, defendant's convictions for aggravated assault upon a peace officer and aggravated fleeing a law enforcement officer violated double jeopardy, because the conduct underlying both offenses was unitary, and the state relied on the danger to the officer created by defendant's reckless driving as the officer hung partially out of defendant's vehicle to prove aggravated fleeing, and this was the same conduct the state's theory of the case relied on to prove aggravated assault on a peace officer with a deadly weapon; the deadly weapon described by the state to the jury was defendant's truck, and the deadly force the officer feared was being thrown from defendant's truck onto the roadway as defendant twisted and turned the vehicle in an effort to get free of the officer and avoid arrest. Given the theory of the case advanced by the state, the legislature did not intend to allow separate punishments for these two offenses. State v. Nieto, 2023-NMCA-072.

Battery on a police officer and resisting an officer. — Where defendant, who was fleeing an officer stopped fleeing, turned toward the officer in an attack mode, and hit the officer twice in the face, the defendant’s conduct was not unitary and the defendant’s convictions of battery on a police officer and resisting an officer did not violate double jeopardy. State v. Lopez, 2008-NMCA-111, 144 N.M. 705, 191 P.3d 563, cert. denied, 2008-NMCERT-007, 144 N.M. 594, 189 P.3d 1216.

Petty-misdemeanor battery and aggravated battery. — Where defendant, who was in jail, pushed and punched another inmate; the inmate fell; defendant got on top of the inmate and punched the inmate; and then defendant stomped on the inmate’s leg, shattering the leg; the acts of battery occurred close in time and sequence, in one location and with one victim; and there was no evidence that defendant’s intention to commit a battery upon the victim was interrupted, altered or changed by the event which caused the victim to fall to the floor, that defendant did not intend to cause great bodily harm to the victim when defendant initiated the confrontation with the victim, or that the fact that the victim fell to the floor had any affect on defendant’s state of mind during the confrontation, defendant’s acts were not separated by sufficient indicia of distinctness to justify multiple punishments, and defendant’s convictions for petty-misdemeanor battery and aggravated battery violated double jeopardy. State v. Garcia, 2009-NMCA-107, 147 N.M. 150, 217 P.3d 1048, cert. denied, 2009-NMCERT-008, 147 N.M. 395, 223 P.3d 940.

Kidnapping and murder. — Where the evidence supported a finding that the defendant first restrained the victim for the purpose of sexually assaulting her and supported a finding that the defendant deliberately intended to make sure that the victim did not leave the place of the assault after the assault, the evidence supported a finding of two separate crimes of kidnapping and murder. State v. Saiz, 2008-NMSC-048, 144 N.M. 663, 191 P.3d 521, abrogated, State v. Belanger, 2009-NMSC-025, 146 N.M. 357, 210 P.3d 783.

Defendant’s convictions of first degree murder and shooting at or from a motor vehicle do not constitute a double jeopardy violation. State v. Riley, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656.

First degree murder and shooting at a dwelling. — Where defendant fired multiple shots at a house, killing one victim and wounding another victim; defendant was indicted for murder of the deceased victim and separately for the injury of the wounded victim; the district court instructed the jury that it had to find all of the elements of the felony murder, plus shooting at a dwelling with regard to the deceased victim, to support the felony murder conviction; the district court did not require the jury to separately find defendant guilty of the same predicate felony of shooting at a dwelling with regard to the deceased victim; in a separate instruction, the district court required the jury to find the elements of shooting at a dwelling with regard to the wounded victim; and defendant was convicted of felony murder with shooting at a dwelling as the predicate felony and separately of shooting at a dwelling, defendant’s double jeopardy rights were not violated, because defendant’s conviction for felony murder with shooting at a dwelling as the predicate felony was based on different conduct from defendant’s conviction of shooting at a dwelling. State v. Torrez, 2013-NMSC-034.

Aggravated assault with a deadly weapon and shooting at a dwelling. — Where defendant was charged with shooting at a dwelling, aggravated assault with a deadly weapon and abandonment of a child, after police officers responded to reports of gunshots and found defendant intoxicated and in possession of a handgun, and where defendant argued that his convictions for shooting at a dwelling and aggravated assault resulted in double jeopardy, claiming that although he fired multiple shots, the conduct of shooting at a dwelling and the aggravated assault cannot be separated, making the conduct unitary, defendant’ constitutional rights were not violated, because there were sufficient facts in the record to support distinct conduct. Evidence that defendant intended to shoot not only at the victim but also separately at the victim’s home and other structures shows conduct that is not unitary, and therefore defendant’s convictions for both shooting at a dwelling and aggravated assault do not violate double jeopardy. State v. Johnson, 2026-NMCA-036, cert. denied.

Attempted second degree murder and assault with intent to commit a violent felony on a peace officer are separately punishable offenses. State v. Demongey, 2008-NMCA-066, 144 N.M. 333, 187 P.3d 679, cert. quashed, 2011-NMCERT-001, 150 N.M. 500, 263 P.3d 962.

Kidnapping. — Where the defendant tied the victim by her wrists and ankles and then untied her and tried to force her to perform oral sex and where each incident was separated by days and intervening events that included consensual sex, drinking and daily activities, the convictions of the defendant for two incidences of kidnapping did not violate double jeopardy. State v. Dombos, 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, cert. denied, 2008-NMCERT-002, 143 N.M. 666, 180 P.3d 673.

Kidnapping jury instructions. — Where the defendant was charged with two separate counts of kidnapping; the jury instructions for each count referred to the same time period; there was evidence to support two separate incidents; and the jury was specifically told by the court in writing in response to a question that to convict on both counts, the jury had to be convinced beyond a reasonable doubt that two different incidents occurred, the conviction of the defendant on both counts did not violate double jeopardy. State v. Dombos, 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, cert. denied, 2008-NMCERT-002, 143 N.M. 666, 180 P.3d 673.

Convictions for kidnapping and aggravated assault did not violate double jeopardy. — Where defendants told the victims that they could not leave the apartment until missing drugs were found, prevented the victims from opening the door to the apartment as they tried to leave, held a knife to the throat of one victim and beat another victim to unconsciousness, and prevented the victims from leaving the apartment for approximately two hours, the jury could reasonably have concluded that the victims were confined in the apartment by force or intimidation when defendants told the victims that they could not leave and closed the door when the victims tried to leave, and that this conduct was independent of and distinct from one defendant’s wielding of the knife. If the conduct is not unitary, there is no double jeopardy violation. State v. Herrera, 2015-NMCA-116, cert. denied, 2015-NMCERT-011.

General verdict of first degree murder based on alternative theories. — Defendant was subjected to double jeopardy when the defendant was charged with first-degree murder based on willful and deliberate murder or, in the alternative, based on felony murder predicated on the felony of shooting at a motor vehicle resulting in great bodily harm, and when the jury returned a general verdict of first degree murder without specifying whether the jury relied on the theory of willful and deliberate murder or felony murder and returned a verdict of shooting at a motor vehicle resulting in great bodily harm. State v. Gonzales, 2007-NMSC-059, 143 N.M. 25, 172 P.3d 162.

Where defendant was placed under arrest when he "chest-butted" a peace officer, then struggled to get away from the officer and then kicked the officer when the officer attempted to handcuff him, defendant’s conduct was unitary and his conviction for resisting, evading, or obstructing an officer was a lesser included offense of defendant’s conviction of battery on an officer and violated double jeopardy. State v. Ford, 2007-NMCA-052, 141 N.M. 512, 157 P.3d 77, cert. denied, 2007-NMCERT-004, 141 N.M. 569, 158 P.3d 459.

Felony murder and attempted robbery. — Where defendant broke into the deceased victim's home with intent to rob him and almost immediately shot the deceased victim and then threatened the surviving victim with a gun and demanded that the surviving victim produce the money; the murder of the deceased victim was complete before defendant threatened the surviving victim; the attempted robbery of the deceased victim was not unitary with the attempted robbery of the surviving victim, and defendant’s acts were separated by sufficient indicia of distinctness to justify the conviction of defendant for felony murder predicated on attempted robbery of the deceased victim and of attempted robbery of the surviving victim. State v. Bernal, 2006-NMSC-050, 140 N.M. 644, 146 P.3d 289.

Attempted first degree murder and aggravated battery. — Defendant's convictions for both attempted first degree murder and aggravated battery did not constitute double jeopardy. State v. Vallejos, 2000-NMCA-075, 129 N.M. 424, 9 P.3d 668, cert. denied, 129 N.M. 385, 9 P.3d 68 (2000).

Attempted first-degree murder, aggravated battery with a deadly weapon, and criminal sexual penetration. — Defendant's right to freedom from double jeopardy was not violated by punishment for attempted first-degree murder, aggravated battery with a deadly weapon, and criminal sexual penetration. State v. Traeger, 2000-NMCA-015, 128 N.M. 668, 997 P.2d 142, rev'd, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518.

Attempted murder and aggravated battery. — Where defendant was convicted of attempted murder and aggravated battery with a deadly weapon; defendant’s conduct was unitary; the indictment for attempted murder required the state to prove that defendant attempted to commit murder and "began to do an act which constituted a substantial part of murder" but failed to commit the offense; the indictment for aggravated battery required the state to prove that defendant touched or applied force to the victims with a deadly weapon intending to injure the victims; the state’s theory of the case to support both charges was that defendant beat, stabbed and slashed the victims; and the state offered the same testimony to prove both charges, the aggravated battery elements were subsumed within the attempted murder elements and defendant’s convictions violated the prohibition against double jeopardy. State v. Swick, 2012-NMSC-018, 279 P.3d 747, rev’g 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, overruling State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

Voluntary manslaughter, aggravated battery and kidnapping. — Where defendant shot the victim in the chest in defendant’s vehicle, drove the unconscious victim in the vehicle to an isolated area, and shot the victim twice in the head while the victim was still alive; and defendant used two different types of force to shoot the victim in the chest and to keep the unconscious victim in the vehicle, defendant’s convictions of voluntary manslaughter for shooting the victim in the chest, aggravated battery for shooting the victim in the head, and kidnapping for keeping the victim in defendant’s vehicle and transporting the victim to the isolated area were not based on unitary conduct and did not violate defendant’s right to be free from double jeopardy. State v. Urioste, 2011-NMCA-121, 267 P.3d 820, cert. quashed, 2012-NMCERT-008, 296 P.3d 490.

Voluntary manslaughter and aggravated battery. — Where defendant killed victim with a machete and was convicted of voluntary manslaughter and aggravated battery based on the state’s theory that victim was injured as a result of two distinct attacks; the evidence, however, did not establish the sequence of events or timing of victim’s injuries nor did it conclusively establish how victim was positioned when each of his injuries occurred; defendant’s conduct underlying both offenses was unitary because the jury could not have reasonably distinguished distinct factual bases for the voluntary manslaughter charge and the aggravated battery charge; in analyzing whether the legislature authorized multiple punishments for voluntary manslaughter and aggravated battery for unitary conduct, the court of appeals determined that aggravated battery is subsumed within voluntary manslaughter because both statutes punish overt acts against a person’s safety, but take different degrees into consideration; defendant’s convictions for both voluntary manslaughter and aggravated battery violated defendant’s constitutional right to be free from double jeopardy. State v. Lucero, 2015-NMCA-040.

Involuntary manslaughter and aggravated DWI. — Where defendant was convicted of involuntary manslaughter and aggravated driving while intoxicated (DWI) after she ran over and killed her fiancé with a vehicle, her constitutional right to be free from double jeopardy was not violated, because under the modified Blockburger analysis, the legislature intended multiple punishments in this case based on the fact that each crime required proof that the other does not. Involuntary manslaughter required a finding that defendant willfully disregarded the safety of others, while aggravated DWI required a finding that defendant was intoxicated to the point where she could not safely handle the vehicle she was driving. State v. Fuschini, 2017-NMCA-084, cert. granted.

Second-degree murder and child abuse resulting in death. — Convictions of defendant for both second - degree murder and intentional child abuse resulting in death violated his right not to be placed in double jeopardy. State v. Mann, 2000-NMCA-088, 129 N.M. 600, 11 P.3d 564, aff'd, 2002-NMSC-001, 131 N.M. 459, 39 P.3d 124.

Second degree murder and shooting at or from motor vehicle. — There was no double jeopardy violation for convictions for second degree murder and shooting at or from a motor vehicle because the testimony at trial permitted the inference that each conviction was based on distinct conduct and because the two statutes evince legislative intent to impose separate punishments for each crime. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 491, 100 P.3d 197.

Criminal solicitation and conspiracy to commit murder. — Even though, under Subsection D of Section 30-28-3 NMSA 1978, defendant could be convicted of criminal solicitation and conspiracy to commit murder, the trial court's merger of the two offenses for sentencing purposes violated his right to be protected from double jeopardy. State v. Vallejos, 2000-NMCA-075, 129 N.M. 424, 9 P.3d 668, cert. denied, 129 N.M. 385, 9 P.3d 68.

Conspiracy to commit first degree murder, robbery and first degree kidnapping. — Where defendant’s co-defendant was arguing with the victim over money owed by the victim to the co-defendant; the co-defendant pulled a gun and told the victim to go with the co-defendant; the victim got into the victim’s car and while the co-defendant was standing outside the car, the victim started the car and hit the gas; defendant and the co-defendant shot and killed the victim; defendant was convicted of first degree kidnapping; and the evidence showed that defendant and the co-defendant shared a common goal of collecting a debt from the victim; the three charged conspiracies occurred at or near the residence of the victims’ friend and unfolded over a short period of time, the actions of defendant and the co-defendant overlapped and were mutually dependent, and the conspiracies involved only one victim, defendant’s double jeopardy rights were violated because the evidence supported the existence of only one conspiracy. State v. Ortega, 2014-NMSC-017.

Conspiracy to commit kidnapping and aggravated arson. — Where defendant’s primary co-conspirator beat, drugged, and tied the victim to a bed in defendant’s residence; defendant did not object to the treatment of the victim; defendant chided a secondary co-conspirator for being nervous and smoked marijuana with co-conspirator to calm the co-conspirator’s nerves; defendant did not object when the primary co-conspirator considered killing the victim and burning the victim’s car, but defended a secondary co-conspirator against the primary co-conspirator’s violence; while the primary co-conspirator was absent from the residence for a lengthy period of time, defendant watched the victim and did not assist the victim or call the police; defendant demanded that the primary co-conspirator determine what to do with the victim before defendant’s child returned from school; defendant left the residence to take the child to a store where, at the direction of the primary co-conspirator, defendant purchased charcoal liter fluid; and while defendant remained at the residence with the child, defendant’s co-conspirators put the victim in the trunk of the victim’s car, drove the car to a school, doused the car with the liter fluid, and burned the car, defendant’s separate convictions of conspiracy to commit kidnapping and aggravated arson violated double jeopardy because the conspiracies, which formed one overarching agreement, involved a single victim, occurred over a short time period, served to inflict personal injuries on the victim and prevent the victim from escaping, and the same persons participated in and were implicated by the conspiracy charges. State v. Bahney, 2012-NMCA-039, 274 P.3d 134, cert. denied, 2012-NMCERT-003, 293 P.3d 183.

Conspiracy to commit aggravated burglary and conspiracy to commit aggravated battery. — Where defendant and another assailant broke into the home of the victim armed with metal bars or bats and defendant struck defendant with a metal bar, there was only one conspiracy to commit multiple crimes and defendant’s conviction of the lesser conspiracy to commit aggravated battery violated double jeopardy. State v. Trujillo, 2012-NMCA-112, 289 P.3d 238, cert. granted, 2012-NMCERT-011, 297 P.3d 1226.

Kidnapping, aggravated arson and second-degree murder. — Where defendant was convicted of kidnapping, aggravated arson, and second-degree murder based on unitary conduct, defendant’s convictions did not violate double jeopardy because each conviction required proof of a unique element that the other convictions did not required. State v. Bahney, 2012-NMCA-039, 274 P.3d 134, cert. denied, 2012-NMCERT-003, 293 P.3d 183.

Rape and battery. — Where defendant drove a truck across a road blocking the victim’s car; defendant and the passenger in the truck approached the victim’s car; defendant had a gun; defendant sexually assaulted the victim while the passenger held the victim’s hands; and defendant was convicted of aggravated battery for bringing a pistol into the victim’s car and for criminal sexual penetration (commission of a felony), because the force defendant used to gain entry into the victim’s car while armed with a pistol was distinct from the force used to restrain the victim in order to commit criminal sexual penetration, defendant’s conduct was not unitary and defendant’s conviction of sexual penetration (commission of a felony) and aggravated battery did not violate defendant’s double jeopardy rights. State v. Montoya, 2011-NMCA-074, 150 N.M. 415, 259 P.3d 820.

Felony murder and armed robbery. — Since the defendant's conduct in stabbing and robbing a cabdriver was unitary, the elements of armed robbery were subsumed by the elements of felony murder in the course of an armed robbery and conviction and sentencing of the defendant for both felony murder and the underlying felony of armed robbery violated double jeopardy. State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228.

Because convictions for felony murder and robbery arose out of unitary conduct, defendant's right to be free from double jeopardy was violated; as a result, the robbery conviction was vacated. State v. Duffy, 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807, modified, State v. Gallegos, 2007-NMSC-007, 141 N.M. 185, 152 P.3d 828, overruled by State v. Tollardo, 2012-NMSC-008, 275 P3d 110.

Kidnapping and felony murder. — Sentences for both kidnapping and felony murder did not violate double jeopardy since the kidnapping was sufficiently separated in time and space from the murder to establish two distinct crimes. State v. Kersey, 1995-NMSC-054, 120 N.M. 517, 903 P.2d 828.

Kidnapping and battery. — Where defendant drove the victim to a deserted area, pulled the victim out of the vehicle, pulled the victim’s hair, kicked the victim, threw the victim into bushes, and beat the victim; defendant held the victim by the arm and drove to a second location where defendant again beat the victim; when the victim attempted to run away, defendant put the victim in the vehicle and drove to a third location and again beat the victim and forced the victim to have intercourse with defendant; and defendant was convicted of kidnapping in the first degree and battery, defendant’s convictions did not violate double jeopardy because defendant’s conduct was not factually unitary or legally unitary because the jury could have determined that the victim suffered physical injuries when defendant dragged the victim from the vehicle, threw the victim into the bushes, pulled the victim’s hair, or otherwise restrained the victim, all actions distinct from the hitting and kicking on which the battery charge was based. State v. Sotelo, 2013-NMCA-028, 296 P.3d 1232, cert. denied, 2013-NMCERT-001.

Multiple convictions for a single count of aggravated battery charged under multiple theories. — Where defendant was charged with aggravated battery as to each victim under two theories, battery with a deadly weapon and battery resulting in great bodily harm, and where the jury returned aggravated battery convictions against defendant under each of the two charged theories for each victim, but where the indictment and jury instructions reflect that defendant was charged with only one act of battering each victim under two theories of the crime, defendant's double jeopardy rights were violated. Multiple convictions for a single count of aggravated battery charged under multiple theories of the crime violate double jeopardy. State v. Comitz, 2019-NMSC-011.

Defendant's two convictions of battery for the injuries he inflicted on a single victim did not violate double jeopardy as defendant's two attacks were sufficiently distinct. — Where defendant was convicted of two counts of aggravated battery with a deadly weapon, one for striking the victim with a baseball bat and one for shooting the victim with a handgun, the batteries on the victim were sufficiently distinct to allow separate punishments for each where the evidence established that defendant entered the bedroom and struck the victim with a baseball bat, there was a struggle over the bat, defendant left the room to retrieve a handgun, another victim locked the bedroom door behind defendant, defendant shot the door handle to get back into the bedroom, and then shot the victim twice, and then left the room again to retrieve a rifle and then shot and killed the victim with the rifle. The time elapsed, the use of two different weapons to attack the victim, the change in defendant's intent in using different weapons, and the multiple intervening events between the batteries, including the struggle over the bat, the exit of the bedroom to retrieve a handgun, and shooting the door handle and kicking the door open before shooting the victim, support distinct conduct. Defendant's two convictions of battery for the injuries inflicted on the victim did not violate double jeopardy as defendant's two attacks were distinct. State v. Phillips, 2024-NMSC-009, rev'g in part 2021-NMCA-062, 499 P.3d 648.

Defendant's three battery convictions inflicted on a single victim did not violate double jeopardy. — Where defendant was convicted of three counts of aggravated battery against a household member, one for striking the victim with a baseball bat, one for shooting the victim with a rifle, and one for punching and strangling her, the batteries on the victim were sufficiently distinct to allow separate punishments for each where the evidence established that defendant entered the bedroom and struck the victim with a baseball bat, later attacked her with a rifle, and later began punching and strangling her until she lost consciousness. The time elapsed between the attacks, the use of different weapons for each battery, the different locations of the attacks, and the numerous intervening events between each battery, including the struggle over the baseball bat, the exit of the bedroom to retrieve a handgun, shooting the door handle and kicking the door open before shooting a separate victim, leaving the room again to retrieve the rifle, and after shooting the victim with the rifle, talking to the 911 operator before punching and strangling the victim, support distinct conduct. Defendant's three convictions of battery against a household member for the injuries inflicted on the victim did not violate double jeopardy as defendant's three attacks were sufficiently distinct. State v. Phillips, 2024-NMSC-009, rev'g in part 2021-NMCA-062, 499 P.3d 648.

Defendant's convictions for aggravated battery with a handgun and manslaughter did not violate double jeopardy. — Where defendant was convicted of aggravated battery with a handgun and manslaughter, defendant's double jeopardy rights were not violated where the evidence established that distinct conduct supported the battery, which was accomplished when defendant shot the victim in the torso using the handgun, and the manslaughter, which was accomplished when defendant left the room, came back, and shot the victim under the chin with the rifle, killing him. The two acts were separated by approximately eighteen seconds, there was an intervening event when defendant left the room to exchange the handgun for the rifle, and defendant used different weapons for each attack and applied distinct uses of force with each. Unitary conduct is not present when one crime is completed before another is committed, or when the force used to commit a crime is separate from the force used to commit another crime. State v. Phillips, 2024-NMSC-009, rev'g in part 2021-NMCA-062, 499 P.3d 648.

Multiple convictions for aggravated battery with a deadly weapon did not violate double jeopardy. — Where defendant was convicted of two counts of aggravated battery with a deadly weapon and voluntary manslaughter, stemming from an attack on his roommate, during which defendant beat the roommate with a bat and later shot the roommate with a handgun before shooting and killing the roommate with a rifle, and where defendant claimed that his two aggravated battery convictions violated his constitutional right against double jeopardy, claiming the evidence established a single attack, the evidence at trial was sufficient to sustain separate convictions for aggravated battery with a deadly weapon where the state presented evidence that defendant initially entered the room where the roommate was sleeping with defendant's former girlfriend, attacked the roommate with a bat and, after a struggle, let go of the bat and left the room, at which point the former girlfriend locked the bedroom door, that defendant retrieved a handgun from his own bedroom and went back to the roommate's bedroom, shot the door handle and kicked down the door to regain entry and, once inside, shot the roommate twice in the torso with the handgun. The evidence demonstrated sufficient indicia of distinctness and an intervening event separating the aggravated battery with the bat and the aggravated battery with the handgun. State v. Phillips, 2021-NMCA-062, 499 P.3d 648, rev'd in part by 2024-NMSC-009.

Convictions for aggravated battery with a deadly weapon and voluntary manslaughter violated double jeopardy. — Where defendant was convicted of two counts of aggravated battery with a deadly weapon and voluntary manslaughter, stemming from an attack on his roommate, during which defendant beat the roommate with a bat and later shot the roommate with a handgun before shooting and killing the roommate with a rifle, and where defendant challenged his convictions for aggravated battery and voluntary manslaughter, arguing that these convictions resulted in multiple punishments for the same conduct, the evidence at trial was insufficient to sustain separate convictions for aggravated battery with a deadly weapon and voluntary manslaughter where the state presented evidence that defendant initially entered the room where the roommate was sleeping with defendant's former girlfriend, attacked the roommate with a bat and, after a struggle, let go of the bat and left the room, at which point the former girlfriend locked the bedroom door, that defendant retrieved a handgun from his own bedroom and went back to the roommate's bedroom, shot the door handle and kicked down the door to regain entry and, once inside, shot the roommate twice in the torso with a handgun, ran out of ammunition, left the room again, returned to his own bedroom and exchanged the handgun for a rifle, returned to the roommate's bedroom, where he placed the barrel of the rifle under the roommate's chin and shot him a third time, and where the state's forensic pathologist testified that all of the gunshots could have been fatal. Although the state argued that the aggravated battery was specifically grounded on the handgun shooting and the voluntary manslaughter was based on the rifle shooting, there was no specificity in the jury instructions that would permit the jury or a reviewing court to conclude that a conviction for manslaughter was linked solely to defendant's use of the rifle. State v. Phillips, 2021-NMCA-062, 499 P.3d 648, rev'd in part by 2024-NMSC-009.

Rebuttable presumption that multiple crimes are the object of only one overarching conspiratorial agreement. — Where the jury returned four conspiracy convictions against defendant arising from one shooting, conspiracy to commit aggravated battery (great bodily harm), conspiracy to commit aggravated battery (deadly weapon), conspiracy to commit aggravated assault and conspiracy to commit shooting at a dwelling, the state failed to overcome the presumption of a single overarching conspiratorial agreement where the evidence established that the location and time of the alleged conspiracies were the same, the personnel involved in the several charged conspiracies were the same, and defendant's role in the several charged conspiracies was the same. Defendant's multiple conspiracy convictions violate double jeopardy. State v. Comitz, 2019-NMSC-011.

Convictions for aggravated battery and aggravated assault did not violate double jeopardy. — Where defendant was convicted of aggravated battery and aggravated assault, the convictions did not violate double jeopardy because the conduct underlying defendant's aggravated battery conviction and the conduct underlying his aggravated assault conviction were separated by sufficient indicia of distinctness. If the conduct is not unitary, then there is no double jeopardy violation. State v. Comitz, 2019-NMSC-011.

Sentence enhancements for committing aggravated battery and aggravated assault with a firearm. — Double jeopardy was not violated where the sentences for defendant's aggravated battery and aggravated assault convictions were each increased by the firearm enhancement, because the legislature intended to authorize greater punishment when a firearm is used in the commission of aggravated assault and aggravated battery. State v. Comitz, 2019-NMSC-011.

Aggravated battery and armed robbery. — Both under the elements test and the included offense approach, the offense of aggravated battery does not merge with the armed robbery. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Since taking the victim's purse is a fact required to be proved under the armed robbery charge, but not under the aggravated battery charge, and application of force is a fact required to be proved under the aggravated battery charge, while threatened use of force is acceptable proof under the armed robbery charge, the elements of the two crimes are not the same, and the "same evidence" test does not apply. State v. Sandoval, 1977-NMCA-026, 90 N.M. 260, 561 P.2d 1353, cert. denied, 90 N.M. 637, 567 P.2d 486.

Robbery and battery against a household member. — Where defendant, who was a former employee of a restaurant, had an intimate romantic relationship with the victim who was the assistant manager of the restaurant; under the guise of returning the victim’s cell phone, defendant approached the victim outside the restaurant, grabbed two money bags containing receipts of the restaurant that the victim intended to deposit; and when defendant grabbed the money bags, defendant struck the victim in the face and fled the scene, defendant’s conviction for robbery and battery against a household member did not violate double jeopardy. State v. Gutierrez, 2012-NMCA-095, 286 P.3d 608, cert. denied, 2012-NMCERT-008, 296 P.3d 490.

Armed robbery and aggravated battery with a deadly weapon. — Where defendant was convicted of armed robbery, conspiracy to commit armed robbery, false imprisonment, possession of a firearm by a felon, aggravated battery with a deadly weapon, and two counts of aggravated assault with a deadly weapon, based on evidence that defendant, armed with a firearm, robbed a restaurant in Alamogordo, New Mexico, defendant's right to be free from double jeopardy was violated where the evidence established that the force elements for both armed robbery and aggravated battery with a deadly weapon were satisfied simultaneously and the jury was instructed that it could rely on the same conduct to satisfy the force elements of both armed robbery and aggravated battery with a deadly weapon. Defendant’s conviction for aggravated battery was therefore subsumed by his armed robbery conviction. State v. Reed, 2022-NMCA-025, cert. denied.

Convictions for armed robbery and aggravated battery predicated on the same use of force violated defendant's double jeopardy rights. — Where defendant was convicted of both armed robbery of a diner and the aggravated battery of the diner's owner, his double jeopardy rights were violated where the conduct underlying both charges was unitary, in that the acts were close together in time and space, each conviction was based on defendant's use of the gun, the acts were not interrupted by an intervening event, and defendant's actions, including gaining entry into the diner, pushing the victim back from the door, and shooting the victim in the face, were all intended to further his goal of stealing money, and where the state used evidence of the same force, the shooting which occurred during the robbery, to prove both convictions. The armed robbery offense subsumed the aggravated battery conviction because the same evidence, the shooting, was used to prove each element of force. State v. Lorenzo, 2024-NMSC-003.

Armed robbery and aggravated assault with a deadly weapon. — Where defendant was convicted of armed robbery, conspiracy to commit armed robbery, false imprisonment, possession of a firearm by a felon, aggravated battery with a deadly weapon, and two counts of aggravated assault with a deadly weapon, based on evidence that defendant, armed with a firearm, robbed a restaurant in Alamogordo, New Mexico, defendant's right to be free from double jeopardy was violated where the use of force against the victim for the aggravated assault with a deadly weapon conviction was the same use of force as that relied upon for the armed robbery conviction, and the actions needed to effectuate aggravated assault with a deadly weapon, as charged in this case, did not require anything more of defendant than the actions necessary to effectuate armed robbery. Defendant's conviction for aggravated assault with a deadly weapon was subsumed by his armed robbery conviction. State v. Reed, 2022-NMCA-025, cert. denied.

Double jeopardy violated where the elements of aggravated assault with a deadly weapon were subsumed within the attempted armed robbery elements. — Where defendant was convicted of aggravated assault with a deadly weapon and attempt to commit armed robbery, defendant's constitutional right to be free from double jeopardy was violated, because the same evidence used to convict defendant of attempted armed robbery, the act of pointing a handgun at the victim, was used to convict defendant of aggravated assault with a deadly weapon. The same threat of force grounded both crimes, and the elements of aggravated assault with a deadly weapon were subsumed within the attempted armed robbery elements. Absent an intent by the legislature to punish the same conduct under more than one statute, the convictions for both crimes could not stand. State v. Garrett, 2026-NMCA-016.

Armed robbery and false imprisonment. — Where defendant was convicted of armed robbery, conspiracy to commit armed robbery, false imprisonment, possession of a firearm by a felon, aggravated battery with a deadly weapon, and two counts of aggravated assault with a deadly weapon, based on evidence that defendant, armed with a firearm, robbed a restaurant in Alamogordo, New Mexico, defendant's right to be free from double jeopardy was violated where the State argued before the jury that it could rely on pointing a gun at the victim or pressing a gun to her throat as the basis for the "force or violence or threatened force or violence" necessary for armed robbery and "the force or intimidation" necessary for the false imprisonment, and where the elements of false imprisonment were subsumed by the elements of armed robbery because nothing more was required of defendant to complete false imprisonment than was required for his commission of armed robbery. State v. Reed, 2022-NMCA-025, cert. denied.

Battery and violation of domestic violence order. — Where provision in order prohibiting domestic violence (OPDV) prohibiting "battering in any manner" contained all elements of the statutorily defined offense of battery, a criminal prosecution for battery following a contempt proceeding for violating the OPDV violated prohibition against double jeopardy. State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, cert. quashed, 127 N.M. 392, 981 P.2d 1210 (1999).

Battery and criminal sexual penetration. — Where defendant and defendant’s spouse had been living apart; defendant broke into the spouse’s house and as the spouse tried to flee, defendant pulled the spouse out of their child’s room by the hair and began striking the spouse; the spouse ran outside the house and defendant dragged the spouse back into the house; once inside the house, defendant beat the spouse and forcibly had sexual contact with the spouse; a jury convicted defendant of simple battery and disorderly conduct and the trial court declared a mistrial on the criminal sexual penetration charge, because the jury failed to reach a verdict on that count; and defendant was subsequently convicted of criminal sexual penetration at a second trial in which the state presented the same evidence it introduced at the first trial, defendant committed three separate and distinct offenses and double jeopardy did not prevent defendant from being convicted of criminal sexual penetration. Brescheisen v. Mondragon, 833 F.2d 238 (10th Cir. 1987), cert. denied, 485 U.S. 1011, 108 S. Ct. 1479, 99 L. Ed. 2d 707 (1988).

Rape and assault and battery. — Prosecution on charge of rape in district court was not barred although accused had pleaded guilty in justice court to charge of assault and battery based on same set of facts. State v. Goodson, 1950-NMSC-023, 54 N.M. 184, 217 P.2d 262.

Assault. — An assault arising from a series of three successive shots fired at a single victim, not separated by a significant amount of time, and arising from a single, continuous intent constituted one offense, and conviction of the defendant on two counts of assault violated his double jeopardy rights. State v. Handa, 1995-NMCA-042, 120 N.M. 38, 897 P.2d 225, cert. denied, 119 N.M. 771, 895 P.2d 671.

Two assault convictions by corrections officer against inmate were based on sufficiently distinct acts. — Where defendant was charged with two counts of assault and attempted battery committed against an inmate, allegedly committed while defendant was employed as a corrections officer, and where, evidence was presented at trial that defendant, while escorting the victim out of a courtroom following a hearing, attempted to kiss the victim multiple times, that the victim pushed defendant away each time, but gave defendant her phone number because she was nervous, uncomfortable, and scared that defendant would try to do more than kiss her, and where defendant claimed that his two convictions for assault violate double jeopardy, defendant's rights against double jeopardy were not violated because after defendant's first attempt to kiss the victim, she managed to physically rebuff defendant by pushing him backward and backing away from him, despite being shackled at the time, and despite the victim's specific lack of consent, defendant attempted to kiss the victim again. The victim's physical blocking and distancing herself from defendant, along with the conversation that followed, constitute intervening events between the two criminal acts. Defendant's two assault convictions were based on sufficiently distinct acts and therefore do not violate double jeopardy. State v. Arvizo, 2021-NMCA-055, cert. denied.

Assault with intent to commit a violent felony and aggravated battery with a deadly weapon. — The double jeopardy clause does not prohibit sentencing for both assault with intent to commit a violent felony murder and for aggravated battery with a deadly weapon; one offense does not subsume the other and other indicia of legislative intent suggests an intent to punish separately. State v. Cowden, 1996-NMCA-051, 121 N.M. 703, 917 P.2d 972, cert. denied, 121 N.M. 644, 916 P.2d 844 .

Aggravated assault and aggravated battery. — Where defendant was convicted of aggravated battery with a deadly weapon for shooting and injuring his son and aggravated assault with a deadly weapon because defendant's wife was standing next to their son at the time of the shooting, defendant was not denied his right to be free from double jeopardy, because each statute requires proof of a fact that the other does not, and defendant's offenses, aggravated battery and aggravated assault, protect against distinct social harms and were committed against separate victims. State v. Branch, 2018-NMCA-031, replacing 2016-NMCA-071, 387 P.3d 250, cert. denied.

Convictions for aggravated assault with a deadly weapon and false imprisonment violated double jeopardy. — Where defendant was charged with three counts of aggravated assault with a deadly weapon and three counts of false imprisonment after he and two other individuals, armed with guns, entered a home to confront another individual about a romantic entanglement and held three teenagers against their will in anticipation of confronting the romantic rival, defendant's convictions violated double jeopardy, because defendant's conduct supporting each charge was unitary, in that the same acts, not separated by space or time, confined the victims to the home and also caused the teenagers to fear for their safety, and the legislature did not intend multiple punishments for aggravated assault with a deadly weapon and false imprisonment under these circumstances, because under the state's theory, the false imprisonment elements were subsumed within the aggravated assault with a deadly weapon elements. State v. Vasquez, 2024-NMCA-020.

Convictions for aggravated battery against a household member by strangulation and false imprisonment were supported by evidence of distinct, nonunitary conduct. — Where defendant was convicted of aggravated battery against a household member by strangulation and false imprisonment based on evidence that defendant restrained the victim by putting his entire body on top of her and, while holding her down with his weight, put his hands around her neck, briefly stopping her from breathing, and approximately ten minutes after the first incident, again got on top of the victim and strangled her to the point where she nearly lost consciousness, defendant's double jeopardy rights were not violated because the evidence of two acts by defendant, separated by ten minutes, was sufficient to establish that each conviction was supported by distinct, nonunitary conduct. The evidence showed that the first crime, restraining or confining the victim by mounting on top of her and briefly strangling her, was completed ten minutes before defendant committed a second crime, strangling the victim for a much longer period of time. State v. Lucero, Jr., 2024-NMCA-050, cert. denied.

Aggravated battery with a deadly weapon and aggravated assault with a deadly weapon. — Where defendant was convicted of aggravated battery with a deadly weapon for shooting and injuring his son and for aggravated assault with a deadly weapon for assaulting his wife, who was standing next to defendant’s son when he was shot, double jeopardy principles were not offended because each statute required proof of a fact that the other did not, and defendant’s convictions for the two offenses involved distinct social harms committed against separate victims. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed.

Convictions for aggravated assault with a deadly weapon and shooting from a motor vehicle predicated on the same conduct violated double jeopardy. — Where defendant was convicted of and sentenced for both aggravated assault with a deadly weapon and shooting from a motor vehicle, and where defendant's act of shooting a single bullet at another man was the culpable conduct that formed the basis for both convictions, defendant's convictions violated his right to be free from multiple punishments for the same offense, because the same use of force was used to support both convictions, there was no substantive difference between the culpable mens rea of the two offenses, and both statutes are directed at protecting from the same social harm, threats or overt acts against a person's safety. State v. Porter, 2020-NMSC-020, rev'g A-1-CA-35597, mem. Op. (May 30, 2018) (non-precedential), and abrogating State v. Sosa, 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017.

Firearm enhancement statute authorizes multiple punishments for the commission of a noncapital felony with a firearm. — Where defendant was convicted of two counts of aggravated assault with a deadly weapon, and where defendant’s sentences on these counts were each enhanced by one year, defendant’s right to be free from double jeopardy was not violated, because 31-18-16(A) NMSA 1978 authorizes multiple punishments for the commission of a noncapital felony with a firearm, and where a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court may impose cumulative punishment under such statutes in a single trial. State v. Baroz, 2017-NMSC-030.

Firearm enhancements to convictions for aggravated battery with a deadly weapon and aggravated assault with a deadly weapon do not violate double jeopardy. — Where defendant was convicted of aggravated battery with a deadly weapon for shooting and injuring his son and aggravated assault with a deadly weapon because his wife was standing next to their son at the time of the shooting, defendant's double jeopardy rights were not violated when the district court enhanced defendant's sentence based on the use of a firearm during the commission of the crimes, because the legislature intended to authorize an enhanced punishment when a firearm is used in the commission of a noncapital felony. State v. Branch, 2018-NMCA-031, replacing 2016-NMCA-071, 387 P.3d 250, cert. denied.

Firearm enhancements to convictions for aggravated battery with a deadly weapon and aggravated assault with a deadly weapon violate double jeopardy. — Where defendant was convicted of aggravated battery with a deadly weapon for shooting and injuring his son and for aggravated assault with a deadly weapon for assaulting his wife, who was standing next to defendant’s son when he was shot, double jeopardy was violated because the firearm enhancements are subsumed within the underlying offenses, and punishment cannot be had for both the enhancements and the enhanced offenses. State v. Branch, 2016-NMCA-071, 387 P.3d 250, replaced by 2018-NMCA-031, and cert. quashed.

Accessory to assault, battery and false imprisonment. — Convictions for accessory to assault with intent to commit a violent felony, accessory to aggravated battery with great bodily harm, and accessory to false imprisonment did not violate double jeopardy. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075, aff'g in part, rev'g in part, 1966-NMCA-114, 122 N.M. 554, 928 P.2d 939.

Assault with intent to commit rape and criminal sexual penetration. — There was no double jeopardy bar to punishment for the offenses of assault with intent to commit rape and criminal sexual penetration, where the victim testified at trial that defendant bound her to a bed, struck her several times, and threatened her verbally for a period of time before commencing the sexual assault. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

Violation of domestic violence order, kidnapping and attempted criminal sexual penetration. — Because the crimes of kidnapping and attempted criminal sexual penetration contain elements not contained in the order prohibiting domestic violence (OPDV) obtained by victim against defendant, defendant's double jeopardy rights were not violated by his conviction for those crimes following his conviction for contempt for violating the OPDV. State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, cert. quashed, 127 N.M. 392, 981 P.2d 1210 (1999).

Kidnapping and criminal sexual penetration. — Where defendant entered the victim’s house; defendant pulled a gun, put the gun to the victim’s head, and told the victim that defendant planned to rape the victim; defendant threatened to kill the victim’s child if the victim did not comply; defendant raped the victim; and defendant was convicted of kidnapping and second-degree criminal sexual penetration, defendant’s double jeopardy rights were not violated because the kidnapping was complete and factually distinct from the criminal sexual penetration when defendant pulled the gun from his clothing and it was not until defendant moved the victim to the bedroom that defendant used the gun to restrain the victim. State v. Dominguez, 2014-NMCA-064, cert. denied, 2014-NMCERT-005.

Where defendant drove a truck across a road blocking the victim’s car; defendant and the passenger in the truck approached the victim’s car; defendant had a gun; defendant sexually assaulted the victim while the passenger held the victim’s hands; and defendant was convicted of kidnapping and criminal sexual penetration (commission of a felony); the jury was instructed on the alternative theories that the kidnapping occurred when defendant confined the victim by blocking the highway with the truck or when defendant exerted force to restrain the victim while committing criminal sexual penetration; the record did not show which theory the jury adopted, because one basis for the kidnapping was the force of restraining the victim and because the force was the same force use to commit criminal sexual penetration, defendant’s conduct was unitary, the offense of kidnapping was subsumed in the criminal sexual penetration (commission of a felony) conviction, and defendant's conviction of kidnapping and criminal sexual penetration violated defendant’s double jeopardy rights. State v. Montoya, 2011-NMCA-074, 150 N.M. 415, 259 P.3d 820.

Consecutive sentences for kidnapping and criminal sexual penetration did not violate the double jeopardy prohibition against multiple punishments for the same offense, where the evidence supported an inference that defendant intended to commit criminal sexual penetration from the moment of the abduction. State v. McGuire, 1990-NMSC-067, 110 N.M. 304, 795 P.2d 996.

Where the defendant took control of the car at gunpoint and then drove the victims to a remote location before raping them, the crime of kidnapping was complete before the act of criminal sexual penetration began; because the two crimes did not constitute a "unitary act," imposition of consecutive sentences was not double jeopardy. State v. Andazola, 2003-NMCA-146, 134 N.M. 710, 82 P.3d 77.

The fact that a kidnapping charge was used to raise a charge of criminal sexual penetration to a second-degree felony does not pose a double jeopardy problem. Convictions normally are allowed for both predicate and compound offenses, and criminal sexual penetration statutes and kidnapping statutes protect different social norms. State v. McGuire, 1990-NMSC-067, 110 N.M. 304, 795 P.2d 996.

Harassment and stalking. — Where the state relies on identical acts of an accused involving the same course of conduct to prove both the offenses of harassment and of stalking, double jeopardy provisions preclude multiple punishment, and the offense of harassment is subsumed into the offense of misdemeanor stalking. State v. Duran, 1998-NMCA-153, 126 N.M. 60, 966 P.2d 768, cert. denied, 126 N.M. 533, 972 P.2d 352.

Violating protective order and stalking. — When the defendant had been convicted of contempt, a misdemeanor, for violating a domestic violence protective order and sentenced to jail time, double jeopardy did not bar prosecution of the defendant for the offenses of stalking and harassment stemming from the same conduct that gave rise to the contempt adjudication. State v. Gonzales, 1997-NMCA-039, 123 N.M. 337, 940 P.2d 185, cert. denied, 123 N.M. 229, 938 P.2d 204.

Use of a telephone to intimidate or threaten and bribery or intimidation of a witness. — Where defendant was charged with use of a telephone to terrify, intimidate, threaten, harass, annoy or offend, and bribery or intimidation of a witness, and where, at trial, the victim testified that defendant was her husband, that they had been married for many years but that they had been separated since 2010, that in December 2016, defendant appeared at the victim's home and started an altercation, during which defendant broke the windshield on the victim's car, that later that same day, defendant left two voicemails on the victim's phone threatening to kill her for calling the police, that she was familiar with defendant's voice from the many years that they had been married, that she recognized defendant's voice and cell phone number from the voicemails, and that the day before a magistrate court trial on a domestic violence charge related to the broken windshield, defendant called the victim and threatened to hurt her if she showed up to court, and where the state presented to the jury recordings of the voicemails, there was no double jeopardy violation because the jury reasonably could have found an independent factual basis for each offense. Defendant's conduct in using a telephone to leave two voicemails, threatening to harm the victim, was sufficient to convict defendant of use of a telephone to intimidate or threaten the victim, and in phoning the victim, a witness in a judicial proceeding, to intimidate or threaten her for the purpose of causing her to abstain from testifying was sufficient to convict defendant of bribery or intimidation of a witness. State v. Vigil, 2021-NMCA-024, cert. denied.

2. CRIMES AGAINST CHILDREN.

Child abuse by endangerment and vehicular homicide. — Where defendant, who was severely drunk, collided with a vehicle in which two children were riding in the back seat, killing one child and injuring the other child, and because the state failed to prove that defendant was aware of the danger to the particular children who were the victims of defendant’s drunk driving, defendant’s conviction of negligent child abuse resulting in death was reversed, the subsequent prosecution of defendant for vehicular homicide would be prohibited under double jeopardy because vehicular homicide is a lesser-included offense of negligent child abuse, the evidence was sufficient to support vehicular homicide, and the lack of evidence that defendant’s actions imperiled a specific child could lead to acquittal on the negligent child abuse charge and conviction of vehicular homicide. State v. Gonzales, 2011-NMCA-081, 150 N.M. 494, 263 P.3d 271, cert. granted, 2011-NMCERT-008, 268 P.3d 514.

Child abuse by endangerment. — Where the defendant exposed all three of his children to unsafe living conditions and household dangers and placed his infant child in a drawer-bed that was too small and which, combined with the bedding, gave the child no room to move if the bedding interfered with the child’s breathing, the evidence warranted a conviction of child abuse by endangerment with respect to the defendant’s treatment of all three children and a separate conviction of child abuse by endangerment with respect to his treatment of his infant child. State v. Chavez, 2008-NMCA-126, 145 N.M. 11, 193 P.3d 558, rev'd, 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891.

Aggravated burglary and child endangerment. — Where the defendant was convicted of both aggravated burglary and child endangerment following a home invasion during which defendant held the fifteen-year-old victim at gunpoint, the offense of aggravated burglary was completed as soon as defendant, with the requisite intent, gained entry to the victim’s home while armed with a handgun, and the child endangerment was completed when defendant forced his way into the child’s home and placed a gun to the child’s head, showing active disregard for that child’s health. Because the crime of aggravated burglary was complete upon entry and before defendant endangered the victim by pointing the gun to his head, the conduct was not unitary, and multiple punishments were authorized. State v. Ramirez, 2016-NMCA-072, cert. denied.

Aggravated assault and child endangerment. — Where the defendant was convicted of both aggravated assault and child endangerment following a home invasion during which defendant held the fifteen-year-old victim at gunpoint, and where the state’s theory was that child endangerment and aggravated assault were both committed when defendant pointed a gun at the victim, double jeopardy was not violated because the jury could have concluded that defendant did not act recklessly and yet still convicted him of aggravated assault, or the jury could have found that the victim’s fear was not reasonable and still convicted defendant of child endangerment. Neither offense is a lesser offense subsumed within the other, and the modified Blockburger test does not foreclose multiple punishments. Moreover, the statutes were designed to protect different societal interests, the child endangerment statute addresses the risk of serious harm to defenseless children, and the aggravated assault statute is aimed at deterring aggression against other people in which the use of deadly weapons is involved. State v. Ramirez, 2016-NMCA-072, cert. denied.

Child abuse and aggravated assault. — Where defendant was convicted of both child abuse and aggravated assault following a shooting in which defendant fired a gun multiple times inside a vehicle where three children and two adults were sitting, double jeopardy was not violated, because there was a presumption that the legislature intended to authorize separate punishments under each statute based on the fact that each statute requires proof of a fact that the other does not and that each statute addresses distinct social evils, and the presumption in this case was not overcome. State v. Ramirez, 2018-NMSC-003.

Aggravated burglary and aggravated assault. — Where defendant was convicted of both aggravated burglary and aggravated assault following a home invasion during which defendant held the fifteen-year-old victim at gunpoint, ordered the victim to lock the door, and forced the victim, at gunpoint, to assist in a futile room-to-room search for an individual not present in the home, double jeopardy was not violated because the aggravated burglary was complete before the gun was pointed at the victim, which was the basis for the aggravated assault conviction, and therefore the conduct underlying the two offenses was not unitary. State v. Ramirez, 2016-NMCA-072, cert. denied.

Criminal sexual contact of a minor. — Where the defendant, who was a massage therapist, during the course of a one-hour massage, first massaged various parts of the minor victim’s body, then her breasts, then finished the massage, and concluded the massage by touching the victim’s vulva, and after the massage, the defendant touched the victim’s buttocks when he gave the victim a hug, the three touchings were sufficiently separated in time to be considered separate offenses; and where the victim was face down at the beginning of the massage, lying on her back when the defendant touched her vulva and was in the defendant’s living room when he touched her buttocks, the victim’s positions were sufficiently distinct each time she was touched to support a finding of separate offenses for each touching. State v. Haskins, 2008-NMCA-086, 144 N.M. 287, 186 P.3d 916, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677.

Where defendant massaged the child’s nude body, touching her breasts, buttocks and vagina, there was one continuous course of conduct, not capable of being split into three charges merely because the defendant touched three different body parts. State v. Ervin, 2008-NMCA-016, 143 N.M. 493, 177 P.3d 1067, cert. denied, 2008-NMCERT-001, 143 N.M. 398, 176 P.3d 1130.

Kidnapping and enticement of a child. — Where defendant was convicted of both kidnapping and enticement of a child, defendant's right to be free from double jeopardy was violated where defendant's convictions were premised upon unitary conduct, and the state's legal theory, that defendant coaxed the victim to follow him by deceiving her with the notion that he had something to show her with the intent to commit a sexual assault, was identical for both charges. State v. Serrato, 2021-NMCA-027, cert. denied.

First-degree kidnapping and criminal sexual contact of a minor. — Where defendant was convicted of both first-degree kidnapping and criminal sexual contact of a minor, defendant's right to be free from double jeopardy was violated where defendant's convictions were premised upon unitary conduct, and the basis for the state's charges, defendant's conduct of touching the victim's breasts, were the same for each offense; the elements of first-degree kidnapping were not satisfied until a sexual offense was committed and there was only evidence presented of one sexual offense that occurred during the course of the kidnapping: the touching of the victim's breasts. State v. Serrato, 2021-NMCA-027, cert. denied.

Contributing to the delinquency of a minor. — Where the defendant actively served varieties of alcohol over a considerable period of time at his home to invited minors and personally interacted with the minors, intending and encouraging different minors to drink to intoxication, the evidence established distinct offenses of contributing to the delinquency of each minor who attended the party and the defendant’s separate convictions for each offense did not violate double jeopardy. State v. Stone, 2008-NMCA-062, 144 N.M. 78, 183 P.3d 963, cert. denied, 2008-NMCERT-003, 143 N.M. 682, 180 P.3d 1181.

Criminal sexual contact of a minor and contributing to the delinquency of a minor. — Where defendant was charged with criminal sexual contact of a minor (CSCM), contributing to the delinquency of a minor (CDM), and unlawful exhibition of motion pictures to a minor, and where, under the state's theory as articulated in the CDM jury instruction, in order to convict defendant of CDM, the state had to prove that defendant forced the child to both engage in sexual acts and watch pornographic movies, and where the state did not dispute that "sexual acts" in the instruction referred to the CSCM or that "watch pornographic movies" is the same as unlawful exhibition of motion pictures, defendant's conviction for CDM as charged in this case violates double jeopardy because the state proffered no additional testimony or evidence to prove CDM than it did to prove CSCM and unlawful exhibition of motion pictures, and the jury convicted defendant of CDM based on nothing more than the same evidence used to convict defendant of CSCM and unlawful exhibition of motion pictures. State v. Luna, 2018-NMCA-025, cert. denied.

Child abuse and murder. — Where a defendant was charged with numerous counts of child abuse resulting in death or great bodily injury and with murder, but the state did not charge or offer proof that the acts of child abuse arose as separate and distinct episodes, the rule of merger precluded the defendant's conviction and sentence for a crime that is a lesser included offense of a greater charge upon which defendant has also been convicted. Although the state properly may charge in the alternative, where the defendant was convicted of one or more offenses which were merged into the greater offense he could be punished for only one. State v. Pierce, 1990-NMSC-049, 110 N.M. 76, 792 P.2d 408 (events occurred prior to 1989 amendment to Section 30-6-1 NMSA 1978).

Criminal sexual contact of a minor and attempted criminal sexual penetration. — The offenses of criminal sexual contact of a minor and attempted criminal sexual penetration of a minor cannot be characterized as lesser-included and greater-inclusive crimes because they each contain different elements and stand independently in relation to one another. State v. Mora, 2003-NMCA-072, 133 N.M. 746, 69 P.3d 256, cert. denied, 133 N.M. 727, 69 P.3d 237.

Manufacturing of child pornography and possession of child pornography. — Where defendant was convicted of two counts of manufacturing of child pornography and one count of possession of child pornography, defendant's right to be free from double jeopardy was not violated where the state established that its basis for charging defendant with possession was separate and independent from the bases for charging defendant with manufacturing based on evidence that defendant recorded videos of himself and a sixteen-year-old girl having sexual intercourse on two separate dates and evidence that law enforcement seized from defendant's home a collection of child pornography separate and distinct from the videos; the conduct underlying the manufacturing and possession of child pornography charges was not unitary under the facts of this case because there was distinct evidence from which the jury reasonably could have inferred independent factual bases for the charged offenses. State v. Gwynne, 2018-NMCA-033, cert. denied.

3. SEXUAL CRIMES.

Attempted criminal sexual penetration. — Where the only evidence supporting the defendant’s conviction of separate counts of attempted criminal sexual penetration was the victim’s testimony that on several occasions the defendant attempted to force the victim to perform fellatio and the victim distinguished each attempt by time and circumstance and described intervening events, the defendant’s conviction of separate counts of attempted criminal sexual penetration did not violate double jeopardy. State v. Dombos, 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, cert. denied, 2008-NMCERT-002, 143 N.M. 666, 180 P.3d 673.

Incest and criminal sexual penetration. — There is no double jeopardy impediment to convicting and sentencing a defendant to consecutive terms for both incest and criminal sexual penetration arising out of the same act. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223.

Criminal sexual penetration in the commission of a felony and kidnapping. — Where defendant was convicted of both criminal sexual penetration in the commission of a felony and kidnapping, and where the jury instructions required the jury to find that defendant caused the victim to engage in fellatio and anal intercourse during the commission of kidnapping or distribution of a controlled substance to a minor or contributing to the delinquency of a minor, double jeopardy was violated, because based on the evidence, the jury could have found that the kidnapping was accomplished during the criminal sexual penetration, and therefore kidnapping was subsumed within the criminal sexual penetration conviction. State v. Simmons, 2018-NMCA-015, cert. denied.

Criminal sexual penetration in the commission of a felony and the predicate offense of contributing to the delinquency of a minor. — Where defendant was convicted of both contributing to the delinquency of a minor (CDM) and criminal sexual penetration in the commission of a felony (CSP II-felony), where CDM was also the predicate felony relied on to increase what was otherwise criminal sexual penetration of a minor (CSPM), a fourth degree felony, to CSP II-felony, a second degree felony, defendant's right to be free from double jeopardy was violated where the conduct relied on to convict of both CDM and CSP II-felony was unitary and there was no evidence that the legislature intended multiple punishments for CSP II-felony and CDM under the state's theory of the case. State v. Elliot, 2025-NMCA-022, cert. denied.

No double jeopardy violation where conduct in committing aggravated burglary, criminal sexual penetration, and criminal sexual contact was not unitary. — Where defendant was tried before a jury on charges of criminal sexual penetration (CSP) in the first degree, kidnapping in the first degree, armed robbery, aggravated burglary and criminal sexual contact (CSC), and where defendant argued that his convictions of aggravated burglary, CSP, and CSC violate his fifth amendment protection against double jeopardy because they arise from a single course of conduct, defendant's double jeopardy rights were not violated because although the instructions permitted the jury to convict defendant of aggravated burglary, CSP, and CSC under the same alternative, the evidence demonstrated that the crimes were committed by three separate, identifiable batteries separated by sufficient indicia of distinctness. Thus, defendant's conduct was not unitary. State v. Sena, 2020-NMSC-011, rev'g in part 2018-NMCA-037, 419 P.3d 1240.

Criminal sexual penetration, criminal sexual contact and aggravated burglary. — Where defendant was convicted of criminal sexual penetration (CSP), criminal sexual contact (CSC) and aggravated burglary, and where defendant claimed that his convictions for all of these offenses result in multiple punishments for the same conduct and therefore violate double jeopardy principles, defendant's convictions violated the prohibition against double jeopardy, because the conduct underlying the offenses was unitary and the state never communicated any theory to the jury nor did it argue any specific facts to support the aggravated burglary charge. Defendant's aggravated burglary conviction was subsumed by the CSP/CSC convictions, and defendant was therefore subjected to two convictions for the same offense in violation of double jeopardy. State v. Sena, 2018-NMCA-037, rev'd in part by 2020-NMSC-011.

Defendant's multiple convictions of CSP, attempted CSP and CSC did not violate his double jeopardy rights. — Where defendant was convicted of two counts of criminal sexual penetration (CSP), one count of conspiracy to commit CSP, one count of attempted CSP, one count of criminal sexual contact (CSC), and one count of voyeurism, and where defendant claimed that his various convictions violated his right to be free from double jeopardy, his double jeopardy rights were not violated where one conviction of CSP was based on evidence that he caused the victim to engage in anal intercourse and his second conviction of CSP was based on evidence that he caused the victim to engage in fellatio; the timing, sequencing of acts, and the nature of defendant's acts support a conclusion that the conduct underlying his convictions for CSP was sufficiently distinct to constitute separate crimes. Moreover, the acts necessary to establish CSP occurred before the acts constituting CSC and attempted CSP as the victim was repositioned between acts, and therefore the acts forming the basis of the CSP are sufficiently distinct from the later acts of attempted CSP and CSC. State v. Lovato, 2026-NMCA-059, cert. denied.

Sufficient indicia of distinctness to support two kidnapping convictions. — Where defendant was charged with kidnapping in two separate cases based on events that occurred between defendant and his former girlfriend on April 4, 2015 and April 10, 2015, and where the evidence established that defendant kidnapped the victim on April 4, 2015, released the victim sometime before April 10, 2015, and confined the victim again on April 10, 2015, defendant's two kidnapping convictions do not violate double jeopardy because there was sufficient indicia of distinctness between the individual instances of confinement. State v. Jackson, 2020-NMCA-034, cert. denied.

Kidnapping and criminal sexual penetration. — Where defendant was convicted of kidnapping with intent to commit a sexual offense and two counts of criminal sexual penetration in the second degree (in the commission of a felony) (CSP), and where the jury was instructed that the restraint or confinement used to accomplish the kidnapping was not merely incidental to the commission of a CSP, defendant's right to be free from double jeopardy was not violated because the jury necessarily relied on distinct conduct for defendant's kidnapping conviction and, moreover, the state made clear in closing that it based its theory of kidnapping and the CSPs on different forces. State v. Jackson, 2020-NMCA-034, cert. denied.

Criminal sexual contact and aggravated battery against a household member. — Where defendant was convicted of felony aggravated battery against a household member and criminal sexual contact (CSC), and although the conduct underlying the two convictions was unitary based on evidence that defendant applied force to the unclothed vagina of the victim with a knife, defendant's double jeopardy right was not violated because there is sufficient indicia of legislative intent for separate punishments for violation of each statute without violating double jeopardy based on the fact that each statute addresses distinct evils, CSC protecting individuals from unlawful intrusions into their intimate parts and aggravated battery against a household member protecting against the use of force against household members. State v. Jackson, 2020-NMCA-034, cert. denied.

Criminal sexual penetration and false imprisonment. — Where defendant claimed that his convictions for criminal sexual penetration (CSP) and false imprisonment violated his right to be free from double jeopardy, arguing that both charges were based on a single course of conduct, using the same force to restrain the victim and to force her to engage in sexual intercourse, defendant's double jeopardy rights were violated where there was a single, continuous struggle between defendant and the victim, during which defendant's intent was consistently to force the victim to engage in sexual intercourse, and the legislature did not intend to permit multiple punishments under these two statutes for the same conduct, based on the fact that there was no element of proof required to convict of false imprisonment, as that crime was presented to the jury, that was not also required to convict defendant of CSP. State v. Medema, 2025-NMCA-011.

Multiple counts of human trafficking. — Where defendant was convicted of two counts of human trafficking involving the same victim between January 24, 2013, and February 7, 2013, during their first trip to Albuquerque, and again between February 17, 2013, and February 22, 2013, during their second trip to Albuquerque, defendant's double jeopardy rights were violated because there was no notable deviation in the nature of defendant's "escorting" business nor did any meaningfully distinct activity take place that bears the capacity to separate the collective human trafficking activities in Albuquerque. Defendant's acts were insufficiently distinct to support two counts of human trafficking for the same victim. State v. Carson, 2020-NMCA-015, cert. denied.

Double jeopardy rights not violated where defendant was convicted of distinct counts of CSPM and CSCM. — Where defendant was convicted of three counts of criminal sexual penetration of a minor and two counts of criminal sexual contact of minor for acts perpetrated against two minors, and where defendant claimed that where continuous and random contact is said to have occurred over a lengthy period of time, but not at specific times, it would violate double jeopardy to allow for multiple convictions to stand, defendant's convictions did not violate double jeopardy where the charges pertaining to each victim were separated into specific and distinct time periods and alleged distinct acts, where the state did not allege that defendant had perpetrated any specific sex act more than once in any given time period, where each victim testified and differentiated defendant's crimes by time period, and where this differentiation was borne out in the instructions the jury received at trial. State v. Little, 2020-NMCA-040.

Convictions for criminal sexual penetration and criminal sexual contact based on unitary conduct violated double jeopardy. — Where defendant was convicted of two counts of criminal sexual penetration (CSP), through the use of force or coercion and when aided and abetted by another, or, alternatively, criminal sexual penetration of a minor (CSPM) through the use of force or coercion, and two counts of criminal sexual contact of a minor (CSCM), and where the evidence established that defendant touched the victim's breasts and vagina while he penetrated the victim with his penis, defendant's convictions violated double jeopardy, because the evidence established that defendant touched the victim's breasts and genitals while he was penetrating her without any separation between these events, and therefore there was no evidence to support a temporal separation between the conduct supporting defendant's conviction of CSP and CSCM. State v. Sandoval, 2025-NMCA-002, cert. denied.

Multiple convictions for criminal sexual penetration, without sufficient evidence of distinctness, violated double jeopardy. — Where defendant was convicted of three counts of criminal sexual penetration based on evidence that defendant penetrated the victim's vagina with his penis, fingers, and mouth, defendant's double jeopardy rights were violated where the evidence presented did not permit an inference that the offensive contacts were separate and distinct to support separate convictions. State v. Urquidi-Martinez, 2025-NMCA-028, cert. granted.

Different acts of criminal sexual penetration occurring during a single sexual assault do not constitute discrete violations of CSPM. — Where defendant was convicted of four counts of CSPM and three counts of CSCM based on multiple sexual assaults of a twelve-year old girl, and where two counts of CSPM were based on evidence that on a single occasion, defendant penetrated the victim's vagina with a sex toy and performed cunnilingus on the victim, defendant's right to be free from double jeopardy was violated because the evidence established that these two counts of CSPM occurred during a single sexual assault of the victim. The penetration of the same orifice with different objects or different body parts during a singe sexual assault does not by itself, without evidence of other intervening events, support two convictions of CSPM without violating a defendant's right to be free of double jeopardy. State v. Guthrie, 2026-NMCA-056, cert. denied.

Defendant's conduct constituting criminal sexual contact of a minor and conduct constituting criminal sexual penetration of a minor was not unitary. — Where defendant was convicted of four counts of CSPM and three counts of CSCM based on multiple sexual assaults of a twelve-year old girl, and where the victim testified that on one encounter, defendant began by touching her breasts and vagina over her clothes, progressed to touching those same areas under her clothes, and then only after the touching, removed his clothes and penetrated her vagina with his penis, defendant's convictions for two counts of criminal sexual contact and one count of criminal sexual penetration did not amount to a double jeopardy violation, because the completion of the CSCM while defendant was clothed, followed by defendant removing his pants, not only indicates a change in defendant's intent, from touching to the more serious crime of penetration, are nonunitary, separate offenses. State v. Guthrie, 2026-NMCA-056, cert. denied.

Legislative intent does not support punishing a defendant separately for CSCM and CSPM if the conduct is unitary. — Where defendant was convicted of four counts of CSPM and three counts of CSCM based on multiple sexual assaults of a twelve-year old girl, and where the victim testified that on one occasion, defendant drove her to a secluded area, defendant started touching her on her chest and vaginal area, that the touching was under her clothes, and that defendant proceeded to insert his penis into her vagina, there was no evidence of any intervening event between the touching and the penetration, and therefore defendant's two convictions for unitary conduct violated his right to be free from double jeopardy. State v. Guthrie, 2026-NMCA-056, cert. denied.

Defendant's convictions for criminal sexual penetration and criminal sexual contact did not violate double jeopardy where the acts supporting each conviction were separated by both time and space. — Where defendant was convicted of criminal sexual penetration for causing the victim to engage in sexual intercourse and criminal sexual contact for touching or applying force to the victim's breast, there was no violation of double jeopardy where the conduct forming the basis of each conviction was nonunitary. State v. Urquidi-Martinez, 2025-NMCA-028, cert. granted.

Touching different parts of a victim's body is alone insufficient to support multiple convictions of CSCM. — Where defendant was convicted of one count of criminal sexual penetration of a minor (CSPM) for digitally penetrating the victim and two counts of criminal sexual contact of a minor (CSCM) for touching the victim's unclothed breasts and buttocks in an incident that occurred in 2017 and two counts of CSCM for touching the victim's unclothed breasts and vulva for an incident that occurred in 2019, and where defendant argued that one count of CSCM from each assault must be vacated because each incident, despite consisting of separate contacts with different parts of the victim's body, constitutes a continuous course of conduct for which multiple convictions of CSCM violate his protections against multiple punishments for the same offense, defendant's right to be free from double jeopardy was violated where the evidence established that defendant touched the victim on several, distinct locations of her body, but did so in a relatively short period of time, without an established intervening event, and the victim remained in the same position throughout the assault, which evidence failed to establish was lengthy or protracted. Touching different parts of a victim's body is alone insufficient to support multiple convictions of CSCM. State v. Valverde, 2025-NMCA-024, cert. denied.

4. PROPERTY CRIMES.

Fraud and securities fraud. — Defendant’s convictions of fraud under 30-16-6 NMSA 1978 and securities fraud under 58-13B-30 and 58-13B-39 NMSA 1978, based on the same facts and conduct, did not violate double jeopardy. State v. Rivera, 2009-NMCA-132, 147 N.M. 406, 223 P.3d 951, cert. denied, 2009-NMCERT-011, 147 N.M. 463, 225 P.3d 793.

Forgery and attempted fraud. — Where defendant forged a check and attempted to present the check to a bank for payment; the jury was instructed that to find defendant guilty of forgery related to the check, the state had to prove that defendant gave or delivered the check to the bank knowing that the check had a false signature intending to injure, deceive or cheat the bank; and as to the fraud charge, the jury was instructed that to find that defendant misrepresented a fact to the bank intending to deceive or cheat the bank, the forgery offense was subsumed within the attempted fraud offense and defendant’s convictions of forgery and attempted fraud violated double jeopardy. State v. Lee, 2009-NMCA-075, 146 N.M. 605, 213 P.3d 509, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42.

Aggravated burglary involving battery and aggravated burglary involving deadly weapon. — Where defendant, who was armed with a knife and who intended to steal a vehicle from the victims, entered the victims’ home, stabbed one victim, and beat and stabbed the other victim; and defendant was convicted of aggravated burglary while committing a battery and aggravated burglary with a deadly weapon, defendant’s convictions violated the prohibition against double jeopardy. State v. Swick, 2012-NMSC-018, 279 P.3d 747, rev’g 2010-NMCA-98, 148 N.M. 895, 242 P.3d 462 and overruling State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

Where defendant entered the victims' home with intent to commit theft and stabbed and beat the victims, defendant’s convictions of aggravated burglary involving battery and aggravated burglary involving a deadly weapon did not violate double jeopardy. State v. Swick, 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, rev'd, 2012-NMSC-018, 279 P.3d 747.

Burglary and criminal trespass. — Where the defendant entered a store on the same day at three different times in violation of a criminal trespass warning; the defendant was convicted of burglary for stealing bottles of liquor when the defendant entered the store the first and second time and of criminal trespass when the defendant entered the store the third time, the defendant’s convictions of burglary and criminal trespass did not violate double jeopardy because the criminal trespass charge arose out of a transaction that was separate in time and space from the two previous instances of criminal trespass. State v. Ramirez, 2008-NMCA-165, 145 N.M. 367, 198 P.3d 866, cert. denied, 2008-NMCERT-011, 145 N.M. 531, 202 P.3d 124.

Convictions for aggravated burglary and tampering with evidence did not violate double jeopardy. — Where defendant was convicted of aggravated burglary and tampering with evidence based on evidence that defendant, as an accomplice, destroyed or hid stolen property after it had been stolen and cleaned the victim’s blood off of the murder weapon after the murder, defendant’s constitutional right to be free from double jeopardy was not violated because her conduct underlying the aggravated burglary, entering a home armed with a weapon with the intent to steal property, was separate and distinct from her conduct underlying the tampering with evidence, destroying or hiding stolen property after it had been stolen or cleaning the victim’s blood off of the murder weapon after the murder, and because the offense of aggravated burglary was complete upon the unauthorized entry, with the requisite intent, while armed with a deadly weapon, and the conduct underlying the tampering with evidence was not done until after the aggravated battery was completed. State v. Montoya, 2016-NMCA-098, cert. denied.

Convictions for nonresidential burglary and breaking and entering violated double jeopardy. — Where defendant was charged with nonresidential burglary and breaking and entering after he broke into a business in Farmington, New Mexico, and where defendant's convictions both arose out of the unitary conduct of defendant entering the business by breaking the window, and where the breaking and entering charge was subsumed into the burglary charge because, under the state's theory of the case, the same evidence supported both convictions, defendant's right to be free from double jeopardy was violated. State v. Begaye, 2023-NMSC-015, rev'g 2022-NMCA-010.

Convictions for burglary and breaking and entering did not violate double jeopardy. — Where defendant was convicted of non-residential burglary, breaking and entering, and possession of burglary tools, and where defendant claimed that his convictions for burglary and breaking and entering violated his right to be free from double jeopardy because both convictions were premised on the same act of a single unauthorized entry, defendant's double jeopardy rights were not violated, because although defendant's conduct was unitary, the charging documents specifically relied on the "breaking or dismantling" component of the breaking and entering statute in charging defendant with breaking and entering, and relied on the "intent to commit a felony or theft therein" component of the burglary statute in charging defendant with burglary. As such, the State's theory of the case regarding the conduct required by the two charges was adequately distinguishable and not solely premised on the unitary conduct. State v. Begaye, 2022-NMCA-010, 505 P.3d 855, rev'd by 2023-NMSC-015.

Receiving stolen property. — Under 30-16-11 NMSA 1978, a defendant’s possession of a stolen firearm is a separate offense from simultaneous possession of other stolen items. State v. Watkins, 2008-NMCA-060, 144 N.M. 66, 183 P.3d 951, overruling State v. Smith, 1983-NMCA-077, 100 N.M. 352, 670 P.2d 963.

Possession of a firearm by a felon and receiving stolen property based on a single gun found in defendant’s home. — Where law enforcement officers, pursuant to a search warrant, discovered a firearm in a locked safe in defendant’s home, and where, based on this discovery, defendant was charged with possession of a firearm by a felon and receiving stolen property based on the single gun found within the locked safe, defendant’s convictions did not violate double jeopardy, because the facts that each statute requires proof that the other does not and that the underlying policies of each statute is different indicate that the legislature intended separate punishments for each offense. State v. Cummings, 2018-NMCA-055, cert. denied.

Unlawful possession of stolen vehicles. — Where defendant was convicted of four counts of receiving or transferring stolen vehicles for his unlawful possession of a stolen enclosed trailer, a snowmobile, and two all-terrain vehicles (ATV), and where defendant claimed that his four convictions based on a single statute violated the double jeopardy protection against multiple punishments for the same offense, defendant’s four convictions were justified because the language of the statute indicates that the legislature sought to address the harm inflicted on the public by a particularized type of criminal enterprise: vehicle theft. Because 30-16D-4 NMSA 1978 appears designed to protect the public from the trafficking of stolen vehicles, it follows that the legislature intended to allow for separate charges for each stolen vehicle separately possessed by an individual. Defendant’s acts of possession of a trailer, a snowmobile, and two ATVs are sufficiently distinct to justify four convictions for possession of a stolen vehicle. State v. Bernard, 2015-NMCA-089.

Fraud and forgery. — Defendant’s convictions under the fraud and forgery statutes that arose out of unitary conduct do not violate double jeopardy. State v. Caldwell, 2008-NMCA-049, 143 N.M. 792, 182 P.3d 775, cert. denied, 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.

Fraud and securities fraud. — A conviction for both general fraud and securities fraud does not violate double jeopardy or the general/specific rule. State v. Hornbeck, 2008-NMCA-039, 143 N.M. 562, 178 P.3d 847.

Forgery. — Where forged checks all reflected different dates and defendant’s accomplice visited defendant on different occasions when defendant gave the accomplice a check to cash, there was substantial evidence to support the conclusion that each signing of a check was distinct enough to warrant separate forgery convictions. State v. Glascock, 2008-NMCA-006, 143 N.M. 328, 176 P.3d 317, cert. quashed, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43.

Common plan. — Defendant’s convictions of conspiracy to commit fraud and conspiracy to commit forgery which stemmed from the defendant’s refinancing of the marital home without his wife’s permission or knowledge, arose from the same agreement and plan to refinance the home and violated double jeopardy. State v. Turner, 2007-NMCA-105, 142 N.M. 460, 166 P.3d 1114, cert. denied, 2007-NMCERT-008, 142 N.M. 434, 166 P.3d 1088.

Security fraud. — Defendant’s convictions of separate counts of security fraud for each issuance of a promissory note and for each renewal or rollover of the existing promissory notes does not violate double jeopardy. State v. Collins, 2007-NMCA-106, 142 N.M. 419, 166 P.3d 480, cert. denied, 2007-NMCERT-008, 142 N.M. 434, 166 P.3d 1088.

Single intent not applicable to robbery. — Robbery is not merely a property crime, but a crime against a person and the robbery statute is designed to protect citizens from violence and to punish the use of violence. The legislature intended to allow separate charges for each individual against whom violence or the threat of violence is separately used. The unit of prosecution for robbery is not based on the defendant’s intent. State v. Bernal, 2006-NMSC-050, 140 N.M. 644, 146 P.3d 289.

Where defendant had the intent to steal only one victim’s property, but used separate and discrete acts of force and threats of force against two victims in an attempt to obtain that property, multiple attempted robbery charges do not violate double jeopardy. State v. Bernal, 2006-NMSC-050, 140 N.M. 644, 146 P.3d 289.

Larceny and burglary. — Since stealing is a necessary element of larceny but is not a necessary element of burglary, larceny is not necessarily involved in a burglary. The elements of these two statutory crimes are not the same. They do not merge. Defendant could be convicted of and sentenced for both crimes. State v. McAfee, 1967-NMSC-139, 78 N.M. 108, 428 P.2d 647.

Burglary and larceny arising out of the same event do not constitute double jeopardy since there is no merger when an accused is charged with both burglary and larceny though the charges stem from one transaction or event. State v. Deats, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139.

Larceny and armed robbery. — Larceny is necessary to, or incidental to the crime of armed robbery, is not a separate and distinct offense from that of armed robbery, and thus merges with the graver offense of armed robbery so as to prevent a double punishment by a sentence for each crime. State v. Eckles, 1968-NMSC-079, 79 N.M. 138, 441 P.2d 36.

Transporting stolen livestock and larceny of livestock. — Defendant's conviction for transporting stolen livestock, when considered with his conviction for larceny of livestock, violated his constitutional right to be free of double jeopardy. State v. Clark, 2000-NMCA-052, 129 N.M. 194, 3 P.3d 689, cert. denied, 129 N.M. 207, 4 P.3d 35.

Larceny of cattle and failure to keep hide. — Where a person has been acquitted of larceny by the killing of cattle, a proceeding against him for failure to keep hide of animal killed for 30 days does not place him in double jeopardy. State v. Knight, 1929-NMSC-049, 34 N.M. 217, 279 P. 947.

Armed robbery and receiving stolen property. — The fact that a defendant pleads guilty, or at least indicates his guilt and is thereupon convicted of receiving stolen property, which property later turns out to be a portion of the property taken by him in the armed robbery, in no way clothes him with immunity from being charged, tried and convicted of the far more serious offense of which he is guilty. State v. Mares, 1968-NMCA-042, 79 N.M. 327, 442 P.2d 817.

The offenses of receiving stolen property and armed robbery fail to fall within the prohibition against punishment for more than one offense because the criminal intent essential to the felony of armed robbery is not an essential element of the petty misdemeanor of receiving stolen property. The offense of receiving stolen property cannot be included within the offense of armed robbery. State v. Mares, 1968-NMCA-042, 79 N.M. 327, 442 P.2d 817.

The facts necessary to sustain a conviction of receiving stolen property could not possibly sustain a conviction of armed robbery, which is essential to make a prior conviction a bar to a subsequent prosecution and conviction for a greater offense. State v. Mares, 1968-NMCA-042, 79 N.M. 327, 442 P.2d 817.

Armed robbery and unlawful taking of a motor vehicle. — Where the child was charged with armed robbery for taking both an automobile and the keys to the automobile in violation of Section 30-16-2 NMSA 1978 and for the unlawful taking of a motor vehicle in violation of Section 30-16D-1 NMSA 1978, the child’s conduct underlying both crimes was unitary; and both convictions required the same proof of the theft of the automobile, the unlawful taking of a motor vehicle conviction was subsumed by the robbery conviction and the child’s conviction for both resulted in double jeopardy. State v. Gutierrez, 2011-NMSC-024, 150 N.M. 232, 258 P.3d 1024.

Attempted robbery and conspiracy. — Convictions for attempted robbery and conspiracy to commit robbery did not violate double jeopardy. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075, aff'g in part, rev'g in part, 1996-NMCA-114, 122 N.M. 554, 928 P.2d 939.

Burglary and possession of burglary tools. — The crime of possession of burglary tools does not merge with the crime of burglary. A defendant's sentence for each of these crimes does not constitute double punishment. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.

Aggravated burglary and robbery. — Theft is a necessary element of robbery but it is not necessarily involved in aggravated burglary. Aggravated burglary requires only the element of intent to commit any felony or theft. One can commit a robbery without making an unauthorized entry, which is an element of aggravated burglary. The elements of the two crimes are not the same. The facts which prove the aggravated burglary are not the facts which prove the robbery. The crimes do not involve the same elements; therefore, a defendant can be sentenced for each of these crimes. State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209.

Criminal damage to property was a lesser included offense of breaking and entering. — Where defendant attempted to force entry into an apartment through the front door; the occupants of the apartment struggled to hold the door closed; defendant pushed the occupants back into the apartment about a foot and stepped into the apartment; while one occupant of the apartment attempted to call 911, defendant walked away; and when the other occupant opened the door to see which way defendant had gone, defendant returned and began kicking the door, defendant’s initial act of trying to force open the door of the apartment and then returning minutes later to kick the door was unitary conduct and defendant’s conviction of criminal damage to property, which was a lesser included offense of defendant’s conviction of breaking and entering, violated defendant’s right to be free from double jeopardy. State v. Sorrelhorse, 2011-NMCA-095, 150 N.M. 536, 263 P.3d 313, cert. denied, 2011-NMCERT-008, 268 P.3d 514.

5. CONTROLLED SUBSTANCES.

Trafficking methamphetamine by manufacture and possession of drug paraphernalia. — Where the defendant was convicted of trafficking methamphetamine by manufacture for possession of items that could be used to manufacture methamphetamine and possession of drug paraphernalia for possession of items that could be used to consume methamphetamine and marijuana and where the items used to consume drugs were not necessary to manufacture methamphetamine, the defendant’s conduct was not unitary and the defendant’s convictions did not violate double jeopardy. State v. Vance, 2009-NMCA-024, 145 N.M. 706, 204 P.3d 31, cert. denied, 2009-NMCERT-001,145 N.M. 656, 203 P.3d 871.

Possession of methamphetamine and possession of methamphetamine with intent to distribute. — The separate crimes of possession of methamphetamine and possession of methamphetamine with intent to distribute apply in the alternative when based on a single act of possession and defendant was subjected to double jeopardy. State v. Quick, 2009-NMSC-015, 146 N.M. 80, 206 P.3d 985.

Possession of methamphetamine and possession of drug paraphernalia. — The legislature did not intend to punish a defendant for possession of a controlled substance and possession of paraphernalia, when the paraphernalia consists of only a container that is storing a personal supply of the charged controlled substance, and where the defendant was convicted of possession of methamphetamine and possession of drug paraphernalia based on the possession of a baggie that held the methamphetamine, the defendant’s conviction of possession of drug paraphernalia violated double jeopardy. State v. Almeida, 2008-NMCA-068, 144 N.M. 235, 185 P.3d 1085.

Separate convictions for possession of drug paraphernalia. — Where defendant was convicted of two counts of possession of drug paraphernalia, one based on his possession of over ninety small, plastic baggies and the second based on his possession of a red straw with a burnt end, both of which are commonly used to package methamphetamine, defendant’s constitutional right to be free from double jeopardy was violated, because the evidence was seized from the same location and was intended for the same purpose, the packaging of methamphetamine, and there was no intervening act or any other factor that would distinguish defendant’s act of possessing separate containers for holding the methamphetamine that was also found in defendant’s possession. State v. Tidey, 2018-NMCA-014, cert. denied.

Possession of methamphetamine is a lesser-included charge of possession with intent to distribute methamphetamine and a conviction of both charges when defendant’s conduct was unitary is a violation of double jeopardy. State v. Lopez, 2008-NMCA-002, 143 N. M. 274, 175 P.3d 942.

Trafficking controlled substances with intent to distribute and conspiracy based on a single act. — Where defendant was convicted of trafficking a controlled substance by possession with intent to distribute in violation of 30-31-20(A) NMSA 1978, and conspiracy to commit the same crime in violation of 30-28-2(A) NMSA 1978, both charges based on evidence of a single sale of drugs by defendant; the defendant’s conduct underlying both crimes was unitary, and the state relied on the same evidence, the single sale of drugs from defendant to the co-conspirator, as the basis to convict for both crimes; the defendant was convicted twice and is being punished twice for the same offense, resulting in a double jeopardy violation. State v. Silvas, 2015-NMSC-006, aff’g 2013-NMCA-093, 310 P.3d 621.

Controlled substances violations. — Because civil forfeiture under the Controlled Substances Act (30-31-1 NMSA 1978 et seq.) is punishment for double-jeopardy purposes under the New Mexico constitution, all forfeiture complaints and criminal charges for violations of the Controlled Substances Act may both be brought only in a single, bifurcated proceeding. State v. Nunez, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264.

This section does not prohibit the legislature from assessing both civil and criminal penalties for violations of the Controlled Substances Act (30-31-1 NMSA 1978 et seq.). State v. Esparza, 2003-NMCA-075, 133 N.M. 772, 70 P.3d 762, cert. denied, 133 N.M. 771, 70 P.3d 761.

Drug trafficking in samples. — The defendant's distribution of drug samples and subsequent distribution of larger quantities of the same drugs to the same persons constituted separate transaction under the statute criminalizing drug trafficking and convictions on distinct counts of trafficking a controlled substance did not violate double jeopardy. State v. Borja-Guzman, 1996-NMCA-025, 121 N.M. 401, 912 P.2d 277, cert. denied, 121 N.M. 375, 911 P.2d 883.

Drug trafficking statute authorizes separate prosecution and punishment for distinct transfers of controlled substances. — Where defendant was convicted of trafficking cocaine by distribution and possession of cocaine with intent to distribute, his constitutional right to be free from double jeopardy was not violated, because the legislature clearly intended, in its enactment of 30-31-20 NMSA 1978 criminalizing drug trafficking, to authorize separate prosecution and punishment for each individual transfer or delivery under the circumstances where the transfer is not contemporaneous, and the evidence presented at trial showed that defendant’s convictions arose from two separate transfers of a controlled substance, where in each exchange defendant transferred a distinct quantity of cocaine to the undercover officer in exchange for a distinct sum of money. State v. Bello, 2017-NMCA-049, cert. denied.

Trafficking with intent to distribute drugs. — Where each of four counts of trafficking with intent to distribute narcotic drugs, arising from a sale to an informant, charged the defendant with selling a different drug, and double jeopardy did not bar separate prosecutions, public policy demanded that the charges be prosecuted separately. State v. Smith, 1980-NMSC-059, 94 N.M. 379, 610 P.2d 1208.

6. MOTOR VEHICLE CRIMES.

Transacting business as a broker-dealer without a license and selling unregistered securities. — Defendant’s convictions of transacting business as a broker-dealer without a license under 58-13B-3 and 58-13B-39 NMSA 1978 and for selling unregistered securities under 58-13B-20 and 58-13B-39 NMSA 1978, based on transactions that were distinct and separate in time and that resulted in distinct and separate harm to different victims, did not violate double jeopardy. State v. Rivera, 2009-NMCA-132, 147 N.M. 406, 223 P.3d 951, cert. denied, 2009-NMCERT-011, 147 N.M. 463, 225 P.3d 793.

Simple DWI and aggravated DWI. — Where the sentencing order on simple DWI expressly continued proceedings to determine guilt of aggravated DWI, the order was interlocutory and did not terminate jeopardy because it clearly was not a resolution of the charge for which defendant was being tried. State v. Vaughn, 2005-NMCA-076, 137 N.M. 674, 114 P.3d 354, cert. denied, 2005-NMCERT-006, 137 N.M. 766, 115 P.3d 229.

Vehicular homicide and child abuse resulting in death. — Defendant's conduct underlying both vehicular homicide and child abuse resulting in death charges was the same. Therefore, his convictions and sentences for both offenses violated his right to be free from double jeopardy. State v. Santillanes, 2000-NMCA-017, 128 N.M. 752, 998 P.2d 1203, rev'd, 2001-NMSC-018, 130 N.M. 464, 27 P.3d 456.

Vehicular homicide and leaving the scene of an accident. — Where defendant drove a pickup toward a group of children who were trick-or-treating on Halloween; the chaperone pushed the children out of the way but was struck and killed; the defendant stopped and then left the scene of the accident; defendant was convicted of homicide by vehicle under 66-8-101 NMSA 1978 and knowingly leaving the scene of an accident involving great bodily harm or death under 66-7-201 NMSA 1978, defendant’s convictions did not violate defendant’s double jeopardy rights. State v. Melendrez, 2014-NMCA-062, cert. denied, 2014-NMCERT-006.

Implied Consent Act violation and driving while intoxicated. — An administrative driver's license revocation under the Implied Consent Act did not constitute "punishment" for purposes of the double jeopardy clause; thus, the state was not barred from prosecuting an individual for driving under the influence (DWI) even though the individual had been subjected to an administrative hearing for driver's license revocation based on the same offense. State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, 120 N.M. 619, 904 P.2d 1044.

Driving while under the influence and homicide by vehicle. — Where the facts offered in municipal court to support a conviction for driving while under the influence of intoxicating liquors would not necessarily sustain a conviction for homicide by vehicle in district court, under the same evidence test there was no double jeopardy when the state sought to prosecute the defendant for homicide by vehicle. State v. Tanton, 1975-NMSC-057, 88 N.M. 333, 540 P.2d 813, rev'g 1975-NMCA-054, 88 N.M. 5, 536 P.2d 269.

Where a defendant pleads guilty to the misdemeanor charges of driving while intoxicated and reckless driving in the magistrate court, he cannot then claim that a trial on the felony charge of homicide by vehicle while driving under the influence of intoxicating liquor in the district court is barred by the double jeopardy rule. Jeopardy cannot extend to an offense (i.e., homicide) beyond the jurisdiction of the magistrate court. State v. Manzanares, 1983-NMSC-102, 100 N.M. 621, 674 P.2d 511, cert. denied, 471 U.S. 1057, 105 S. Ct. 2123, 85 L. Ed. 2d 487, reh’g denied, 472 U.S. 1013, 105 S. Ct. 2715, 86 L. Ed. 2d 729 (1985).

Convictions for DUI and careless driving violated defendant's double jeopardy rights. — Where defendant was convicted of driving under the influence of intoxicating liquor (DUI), impaired to the slightest degree, and careless driving, his right to be free from double jeopardy was violated, because based on the district court's findings that defendant left the traveled portion of the roadway when he struck or almost struck the victim, it was evident that the district court relied on the same evidence to convict defendant of both charges, and therefore the lesser offense, careless driving, was subsumed within his DUI conviction. State v. Arguello, 2024-NMCA-074, cert. denied.

Aggravated fleeing and careless driving. — Where defendant, after being stopped by a police officer for racing on a highway, sped off from the parking lot where he was stopped and while trying to elude the pursuing officer, drove at a high rate of speed through traffic, causing other vehicles to maneuver out of the way, and where defendant was convicted of both aggravated fleeing and careless driving, defendant's double jeopardy rights were violated where there were no discernable intervening events between defendant's initial flight in the parking lot and his continuing flight on a separate road and where defendant throughout drove in a manner that suggested a singular focus, escaping apprehension. The evidence supported a determination that defendant engaged in one continuous course of unitary conduct, and there was no indication that the legislature intended to punish the two crimes separately. State v. Gonzales, 2019-NMCA-036, cert. denied.

Defendant's conduct underlying convictions for leaving the scene of the accident and tampering with evidence was not unitary. — Where defendant was charged with two counts of aggravated battery, leaving the scene of an accident, and tampering with evidence after she, while under the influence of methamphetamine and heroin, drove across a parking lot at a high rate of speed, struck two individuals in her path, and fled the scene, and where defendant claimed that her convictions of tampering with evidence and leaving the scene of the accident violate the double jeopardy clauses in both the New Mexico and United States Constitutions, defendant's double jeopardy rights were not violated because defendant's conduct underlying each conviction, leaving the parking lot after striking the two victims with her vehicle and leaving her vehicle in a discreet location away from the scene, was sufficiently distinct in both time and desired result to support a conclusion that her acts were not unitary. State v. Holtsoi, 2024-NMCA-042, cert. denied.

7. MISCELLANEOUS CRIMES.

Fraud and making false public voucher. — The double jeopardy clause does not prohibit the prosecution of an individual under both 30-16-6 NMSA 1978, fraud, and 30-23-3 NMSA 1978, making a false public voucher. State v. Ellenberger, 1981-NMSC-056, 96 N.M. 287, 629 P.2d 1216.

Securities fraud. — Where defendants were charged with multiple counts of securities fraud and transacting business as a broker-dealer without a license after convincing an elderly couple to invest in a phony real estate investment project, a project to invest in commodities and a project to invest certain trust funds, the multiple convictions do not violate double jeopardy and can be punished separately where there was evidence that that the three convictions stemmed from three distinct offers to sell securities under the specific fraud statute, and there was sufficient indicia of distinctness to justify punishments for each transaction. State v. Maxwell, 2016-NMCA-082, cert. denied.

Double jeopardy violated where State failed to provide the factual basis for differentiating between two counts of fraud. — Where defendant, a franchisee, wrote checks provided by franchisor payable to herself and co-defendant, neither of whom was authorized to receive these funds, in amounts totaling over $200,000, and where defendant was charged with forgery, conspiracy to commit forgery, fraud, conspiracy to commit fraud and embezzlement, and co-defendant was charged with forgery, conspiracy to commit forgery, fraud (over $2,500 but less than $20,000) and fraud (over $20,000), co-defendant's convictions of two counts of fraud violated double jeopardy because the two corresponding jury instructions covered overlapping time periods and the state failed to describe the specific conduct on which these charges were based. The date ranges charged in the jury instructions and the state's failure to provide the factual basis for differentiating between the two counts could have allowed the jury to convict co-defendant twice for the same underlying act State v. Candelaria, 2019-NMCA-032, cert. denied.

The felon in possession statute is insurmountably ambiguous as to the unit of prosecution. — Where defendant was charged with two counts of possession of a firearm by a felon after law enforcement officers, while executing a search warrant at defendant's residence, discovered two handguns in defendant's bedroom, and where, at a pretrial motion hearing, the district court, based on the facts in the state's criminal complaint, granted defendant's motion to dismiss one of the two counts for violating defendant's right to be free from double jeopardy, it was error for the district court to rule on the double jeopardy issue based on the limited record at the time of the motion hearing, because the felon in possession statute is insurmountably ambiguous as to the unit of prosecution and the district court did not address the second step of the unit of prosecution analysis to determine whether defendant's acts were separated by sufficient indicia of distinctness to justify multiple punishments under the same statute; the record did not adequately address the indicia for weapons possession, such as the timing of the gaining of possession of the weapons, the spacing between the weapons, the quality or nature of the weapons, and the results of the possession, and therefore defendant's motion did not present a purely legal issue resolvable under 5-601(C) NMRA and the district court erred by ruling on the merits of the motion without a stipulation of facts or an evidentiary hearing. State v. Gonzales, 2024-NMCA-062.

Charging defendant with three counts of assisting escape, in a prosecution arising out of the escape of three prison inmates, did not violate the constitutional prohibition against double jeopardy. State v. Martinez, 1989-NMCA-047, 109 N.M. 34, 781 P.2d 306.

Evading an officer in car and on foot. — Where defendant led police on a high-speed automobile chase and then got out of his car and fled on foot, his acts supported only one crime founded on resisting, evading or obstructing an officer, and vacation of his convictions for two counts of evading an officer was required. State v. Lefebre, 2001-NMCA-009, 130 N.M. 130, 19 P.3d 825.

Defendant's conviction for resisting, evading or obstructing an officer was a lesser included offense of aggravated fleeing of an officer and it was error to convict defendant of both offenses. — Where defendant was convicted of possession of methamphetamine, aggravated fleeing of a law enforcement officer, and resisting, evading or obstructing an officer after leading law enforcement on a vehicle chase from Logan, New Mexico to Tucumcari, New Mexico and, after stopping and exiting the vehicle, leading the officers on a foot chase until he was located in a shed in possession of methamphetamine, defendant's convictions for aggravated fleeing of a law enforcement officer and resisting, evading or obstructing an officer violated his protection against double jeopardy, because defendant's conviction for resisting, evading or obstructing an officer was a lesser included offense of defendant's conviction for aggravated fleeing of a law enforcement officer and he cannot be convicted of both because his conduct was unitary. State v. French, 2021-NMCA-052.

Securities violations. — Criminal prosecutions under the Securities Act, (now New Mexico Uniform Securities Act, 58-13C-101 NMSA 1978 et seq.), following administratively imposed civil penalties under that act, do not place defendants in double jeopardy under this section or under 30-1-10 NMSA 1978. State v. Kirby, 2003-NMCA-074, 133 N.M. 782, 70 P.3d 772, cert. quashed, 133 N.M. 771, 70 P.3d 761.

Possession of computer child pornography. — Where defendant’s computer contained twenty-five files, consisting of twenty-five separate images of child pornography that defendant had downloaded on five occasions, and defendant was convicted of twenty-five counts of sexual exploitation of children for possession of the illicit images, defendant was erroneously charged with and convicted on twenty-five counts because defendant’s chargeable unlawful possession under 30-6A-3(B)(2) NMSA 1978 consisted of five separate and distinct downloads. State v. Ballard, 2012-NMCA-043, 276 P.3d 976, rev’d, State v. Olsson, 2014-NMSC-012.

Distribution of computer child pornography. — Where defendant possessed child pornography images in a shared file accessible on peer-to-peer software that third parties could download, defendant’s acts did not have sufficient distinctness to justify multiple punishments, and defendant could only be charged with one count of distribution of child pornography, because his act of creating one distinct computer file containing multiple images of child pornography were not shown to be distinct with regard to any images placed in the shared file, no multiplicity of separate actions was alleged to have occurred, and no evidence was presented to establish that defendant personally sent any image to a third party. State v. Sena, 2016-NMCA-062, cert. granted.

Conspiracy and the completed offenses are separate offenses and conviction of both does not amount to double jeopardy. State v. Armijo, 1976-NMCA-126, 90 N.M. 12, 558 P.2d 1151.

The state failed to overcome the presumption of singularity for conspiracy charges. — Where petitioner pleaded guilty to three conspiracy crimes, two conspiracies to commit nonresidential burglary and conspiracy to commit larceny, the state failed to overcome the presumption of singularity where although the three conspiracies occurred at three separate locations and the elements of nonresidential burglary and larceny do not have similar overt acts, the state failed to introduce evidence of intervening conduct or distinct conspiratorial agreements or evidence that there was more than one other coconspirator, and the record establishes that petitioner was the constant actor in each of the three conspiracies. The evidence did not demonstrate more than one agreement between two or more coconspirators nor that two conspirators made multiple agreements in such a way that would justify multiple punishments under the conspiracy statute. Torres v. Santistevan, 2023-NMSC-021.

Double jeopardy does not foreclose prosecution for predicate offenses following racketeering conviction. — Where defendant was charged with and convicted of racketeering and conspiracy to commit racketeering for conduct spanning from 2007 to 2012 based on at least two of the predicate offenses of first-degree murder, arson, and bribery of a public officer, and where defendant was subsequently charged with the same crimes that served as the predicate offenses in the racketeering case, the district court did not err in denying defendant’s claim that his right to be free from double jeopardy was violated, because the legislature intended for predicate offenses to be separate from substantive racketeering offenses and therefore double jeopardy protections do not present a bar to defendant’s prosecution for the predicate offenses on which his racketeering convictions were based. State v. Loza, 2018-NMSC-034.

Reference to refusal to take blood test. — Testimony relative to the refusal of a person charged with driving while intoxicated to take a blood-alcohol test is admissible in a criminal proceeding against him and does not violate a defendant's right against self-incrimination (opinion based in part on former 41-12-9, 1953 Comp., which permitted comment on a defendant's failure to testify in his own behalf). 1964 Op. Att'y Gen. No. 64-38.

A police officer may authorize the taking of blood from a dead person to determine alcoholic content without violating any rights the person or his heirs might have and without incurring any personal liability for his actions so long as the taking of blood is done in a manner consistent with the normal rule of human decency. 1960 Op. Att'y Gen. No. 60-104.

Procedure under legislative committees. — In the investigation of bribery charges by the legislature, members of the press appearing before its committee may be compelled to divulge the source of their information, but no person may be compelled to be a witness against himself in any criminal case, and this prohibition will be given a liberal construction, and each house of the legislature may determine its rules of procedure and punish its members or others for contempt or disorderly conduct in its presence. 1938 Op. Att'y Gen. No. 38-2037.

Law reviews. — For comment, "Criminal Law - Appeal by State - Double Jeopardy," see 7 Nat. Resources J. 304 (1967).

For comment, "Two-Tiered Test for Double Jeopardy Analysis in New Mexico," see 10 N.M. L. Rev. 195 (1979-1980).

For note, "Custodial Interrogation in New Mexico: State v. Trujillo," see 12 N.M. L. Rev. 577 (1982).

For note, "Criminal Procedure - The Fifth Amendment Privilege Against Self-Incrimination Applies to Juveniles in Court-Ordered Psychological Evaluations: State v. Christopher P.," see 23 N.M. L. Rev. 305 (1993).

For note, "State Constitutional Law - New Mexico Rejects Prosecutorial Goading as Test for Double Jeopardy Bar - State v. Breit," see 28 N.M. L. Rev. 151 (1998).

For article, "New Developments in Fourth, Fifth and Sixth Amendment Law," see 31 N.M. L. Rev. 175 (2001).

For note, "Criminal Procedure - Civil Forfeiture and Double Jeopardy: State v. Nunez," see 31 N.M. L. Rev. 401 (2001).

For note, "Criminal Law: Applying the General/Specific Statute Rule in New Mexico - State v. Santillanes," see 32 N.M. L. Rev. 313 (2002).

For article, "Adding Charges on Retrial: Double Jeopardy, Interstitialism, and State v. Lynch", see 34 N.M. L. Rev. 539 (2004).

For article, "Complying with Nunez: The Necessary Procedure for Obtaining Forfeiture of Property and Avoiding Double Jeopardy after State v. Exparza", see 34 N.M. L. Rev. 561 (2004).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 21 Am. Jur. 2d Criminal Law §§ 243 to 314; 21A Am. Jur. 2d Criminal Law §§ 701 to 716, 936 to 952; 81 Am. Jur. 2d Witnesses §§ 80 to 90, 97 to 102, 117 to 122, 804, 961.

Perjury, acquittal as bar to prosecution of accused for, 89 A.L.R.3d 1098.

Waiver of privilege against self-incrimination in exchange for immunity from prosecution as barring reassertion of privilege on account of prosecution in another jurisdiction, 2 A.L.R.2d 631.

Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 A.L.R.2d 1404.

Habeas corpus, former jeopardy as ground for, 8 A.L.R.2d 285.

Power of prosecuting attorney to extend immunity from prosecution to witness claiming privilege against self-incrimination, 13 A.L.R.2d 1439, 4 A.L.R.4th 617, 4 A.L.R.4th 1221.

Validity of governmental requirement of oath of allegiance or loyalty, 18 A.L.R.2d 268.

Pretrial requirement that suspect or accused wear or try on particular apparel as violating constitutional rights, 18 A.L.R.2d 796.

Right of witness to refuse to answer, on the ground of self-incrimination, as to membership in or connection with party, society or similar organization or group, 19 A.L.R.2d 388.

Alleged incompetent as witness in lunacy inquisition, 22 A.L.R.2d 756.

Statutes relating to sexual psychopaths, 24 A.L.R.2d 350.

Fingerprints, palm prints or bare footprints as evidence, 28 A.L.R.2d 1115, 45 A.L.R.4th 1178.

Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation, 29 A.L.R.2d 1074.

Validity and construction of statutes providing for psychiatric examination of accused to determine mental condition, 32 A.L.R.2d 434.

Homicide: acquittal on homicide charge as bar to subsequent prosecution for assault and battery or vice versa, 37 A.L.R.2d 1068.

Conviction or acquittal in criminal proceeding as bar to action for statutory damages or penalty, 42 A.L.R.2d 634.

Blood grouping tests, 46 A.L.R.2d 1000, 43 A.L.R.4th 579.

Discharge of accused for holding him excessive time without trial as bar to subsequent prosecution for same offense, 50 A.L.R.2d 943.

Conspiracy: conviction or acquittal of attempt to commit particular crime as bar to prosecution for conspiracy to commit same crime, or vice versa, 53 A.L.R.2d 622.

Adequacy of immunity offered as condition of denial of privilege against self-incrimination, 53 A.L.R.2d 1030, 29 A.L.R.5th 1.

Severance where codefendant has incriminated himself, 54 A.L.R.2d 830.

Lesser offense: conviction of lesser offense as bar to prosecution for greater on new trial, 61 A.L.R.2d 1141.

Appeal: conviction from which appeal is pending as bar to another prosecution for same offense under rule against double jeopardy, 61 A.L.R.2d 1224.

Jury: what constitutes accused's consent to court's discharge of jury or to grant of state's motion for mistrial which will constitute waiver of plea of former jeopardy, 63 A.L.R.2d 782.

Waiver of privilege against self-incrimination, testifying in civil proceeding as, 72 A.L.R.2d 830.

Guilty plea as basis of claim of double jeopardy in attempted subsequent prosecution for same offense, 75 A.L.R.2d 683.

Right not to testify, court's duty to inform accused who is not represented by counsel, 79 A.L.R.2d 643.

Propriety, and effect as double jeopardy, of court's grant of new trial on own motion in criminal case, 85 A.L.R.2d 486.

Plea of nolo contendere or non vult contendere, 89 A.L.R.2d 540.

Former jeopardy as ground for prohibition, 94 A.L.R.2d 1048.

Conviction or acquittal of one offense, in court having no jurisdiction to try offense arising out of same set of facts, later charged in another court, as putting accused in jeopardy of latter offense, 4 A.L.R.3d 874.

Subsequent trial, after stopping former trial to try accused for greater offense, as constituting double jeopardy, 6 A.L.R.3d 905.

Plea of guilty or conviction as resulting in loss of privilege against self-incrimination as to crime in question, 9 A.L.R.3d 990.

Necessity of informing suspect of rights under privilege against self-incrimination, prior to police interrogation, 10 A.L.R.3d 1054.

Homicide: earlier prosecution for offense during which homicide was committed as bar to prosecution for homicide, 11 A.L.R.3d 834.

Increased punishment: propriety of increased punishment on new trial for same offense, 12 A.L.R.3d 978.

Requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification, 24 A.L.R.3d 1261.

Right of motorist stopped by police officers for traffic offense to be informed at that time of his federal constitutional rights under Miranda v. Arizona, 25 A.L.R.3d 1076.

Larceny: single or separate larceny predicated upon stealing property from different owners at the same time, 37 A.L.R.3d 1407.

Validity of statute, ordinance or regulation requiring fingerprinting of those engaging in specified occupations, 41 A.L.R.3d 732.

When does jeopardy attach in a nonjury trial, 49 A.L.R.3d 1039.

Prosecution for robbery of one person as bar to subsequent prosecution for robbery committed of another person at the same time, 51 A.L.R.3d 693.

Censorship and evidentiary use of unconvicted prisoner's mail, 52 A.L.R.3d 548.

Acquittal in criminal proceeding as precluding revocation of probation on same charge, 76 A.L.R.3d 564.

Acquittal in criminal proceeding as precluding revocation of parole on same charge, 76 A.L.R.3d 578.

Instruction allowing presumption or inference of guilt from possession of recently stolen property as violation of defendant's privilege against self-incrimination, 88 A.L.R.3d 1178.

Admissibility in evidence of confession made by accused in anticipation of, during or following polygraph examination, 89 A.L.R.3d 230.

Double jeopardy as bar to retrial after grant of defendant's motion for mistrial, 98 A.L.R.3d 997.

Right of defendant sentenced after revocation of probation to credit for jail time served as condition of probation, 99 A.L.R.3d 781.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury, 3 A.L.R.4th 374.

Applicability of double jeopardy to juvenile court proceedings, 5 A.L.R.4th 234.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - modern view, 6 A.L.R.4th 802.

Mental subnormality of accused as affecting voluntariness or admissibility of confession, 8 A.L.R.4th 16.

Concern for possible victim (rescue doctrine) as justifying violation of Miranda requirements, 9 A.L.R.4th 595.

Propriety of using otherwise inadmissible statement, taken in violation of Miranda rule, to impeach criminal defendant's credibility - state cases, 14 A.L.R.4th 676.

Admissibility of evidence concerning words spoken while declarant was asleep or unconscious, 14 A.L.R.4th 802.

Retrial on greater offense following reversal of plea-based conviction of lesser offense, 14 A.L.R.4th 970.

What constitutes "manifest necessity" for state prosecutor's dismissal of action, allowing subsequent trial despite jeopardy's having attached, 14 A.L.R.4th 1014.

Right of partners to assert personal privilege against self-incrimination with respect to production of partnership books or records, 17 A.L.R.4th 1039.

Propriety and prejudicial effect of prosecution's calling as witness, to extract claim of self-incrimination privilege, one involved in offense charged against accused, 19 A.L.R.4th 368.

Impeachment of defense witness in criminal case by showing witness' prior silence or failure or refusal to testify, 20 A.L.R.4th 245.

Necessity and sufficiency of statements informing one under investigation for involuntary commitment of right to remain silent, 23 A.L.R.4th 563.

Right of prosecution to discovery of case-related notes, statements, and reports - state cases, 23 A.L.R.4th 799.

Propriety of increased sentence following revocation of probation, 23 A.L.R.4th 883.

Propriety of requiring suspect or accused to alter, or to refrain from altering, physical or bodily appearance, 24 A.L.R.4th 592.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs, 25 A.L.R.4th 419.

Power of state court, during same term, to increase severity of lawful sentence - modern status, 26 A.L.R.4th 905.

Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.

Extent and determination of attorney's right or privilege against self-incrimination in disbarment or other disciplinary proceedings - post-Spevack cases, 30 A.L.R.4th 243.

Blood grouping tests, 46 A.L.R.2d 1000, 43 A.L.R.4th 579.

Failure to object to improper questions or comments as to defendant's pretrial silence or failure to testify as constituting waiver of right to complain of error - modern cases, 32 A.L.R.4th 774.

Former jeopardy as bar to retrial of criminal defendant after original trial court's sua sponte declaration of a mistrial - state cases, 40 A.L.R.4th 741.

Propriety of governmental eaves-dropping on communications between accused and his attorney, 44 A.L.R.4th 841.

Automobiles: validity and construction of legislation authorizing revocation or suspension of operator's license for "habitual," "persistent," or "frequent" violations of traffic regulations, 48 A.L.R.4th 367.

Voluntariness of confession as affected by police statements that suspect's relatives will benefit by the confession, 51 A.L.R.4th 495.

Double jeopardy: various acts of weapons violations as separate or continuing offense, 80 A.L.R.4th 631.

What constitutes assertion of rights to counsel following Miranda warnings - state cases, 83 A.L.R.4th 443.

Admissibility, in prosecution in another state's jurisdiction, of confession or admission made pursuant to plea bargain with state authorities, 90 A.L.R.4th 1133.

Determination that state failed to prove charges relied upon for revocation of probation as barring subsequent criminal action based on same underlying charges, 2 A.L.R.5th 262.

Propriety, under state constitutional provisions, of granting use or transactional immunity for compelled incriminating testimony - post-Kastigar cases, 29 A.L.R.5th 1.

Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 A.L.R.5th 283.

Coercive conduct by private person as affecting admissibility of confession under state statutes or constitutional provisions-post-connelly cases, 48 A.L.R.5th 555.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs - Drugs or narcotics administered as part of medical treatment and drugs or intoxicants administered by the police, 96 A.L.R.5th 523.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts - Modern view, 97 A.L.R.5th 201.

Acquittal or conviction in state court as bar to federal prosecution based on same act or transaction, 18 A.L.R. Fed. 393.

Right of witness in federal court to claim privilege against self-incrimination after giving sworn evidence on same matter in other proceedings, 42 A.L.R. Fed. 793.

Propriety of court's failure or refusal to strike direct testimony of government witness who refuses, on grounds of self-incrimination, to answer questions on cross-examination, 55 A.L.R. Fed. 742.

Propriety of search involving removal of natural substance or foreign object from body by actual or threatened force, 66 A.L.R. Fed. 119.

Display of physical appearance or characteristic of defendant for purpose of challenging prosecution evidence as "testimony" resulting in waiver of defendant's privilege against self-incrimination, 81 A.L.R. Fed. 892.

Availability of sole shareholder's Fifth Amendment privilege against self-incrimination to resist production of corporation's books and records - modern status, 87 A.L.R. Fed. 177.

Construction and application of provision of Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 USCS § 3501(c)), that defendant's confession shall not be inadmissible in evidence in federal criminal prosecution solely because of delay in presentment before magistrate, 124 A.L.R. Fed. 263.

Duty of court, in federal criminal prosecution, to conduct inquiry into voluntariness of accused's statement - modern cases, 132 A.L.R. Fed. 415.

Double jeopardy considerations in federal criminal cases - supreme court cases, 162 A.L.R. Fed. 415.

22 C.J.S. Criminal Law §§ 208 to 276; 22A C.J.S. Criminal Law §§ 645 to 654; 98 C.J.S. Witnesses §§ 431 to 456.