1998 -NMSC- 14, State v. Duffy, 22667

CourtSupreme Court of New Mexico
Citation126 N.M. 132,967 P.2d 807,1998 NMSC 14
Docket NumberNo. 22667,22667
Parties, 1998 -NMSC- 14 STATE of New Mexico, Plaintiff-Appellee, v. Shawn Matthew DUFFY, Defendant-Appellant.
Decision Date20 May 1998

Page 807

967 P.2d 807
126 N.M. 132, 1998 -NMSC- 14
STATE of New Mexico, Plaintiff-Appellee,
Shawn Matthew DUFFY, Defendant-Appellant.
No. 22667.
Supreme Court of New Mexico.
May 20, 1998.

Page 811

Phyllis H. Subin, Chief Public Defender, Susan Gibbs, Assistant Appellate Defender, Santa Fe, for Appellant.

Hon. Tom Udall, Attorney General, Max Shepherd, Assistant Attorney General, Santa Fe, for Appellee.


FRANCHINI, Chief Justice.

¶1 Shawn Matthew Duffy appeals from his convictions of the first-degree felony murder of Elizabeth Somerville, robbery with an old-age enhancement, and tampering with evidence. Duffy raises six issues on appeal. We conclude that Duffy's right to be protected from double jeopardy was violated by his convictions for both felony murder and robbery; that the robbery was a proper predicate felony to the felony murder; that, under the doctrine of cumulative error, Duffy was not denied a fair trial by the admission of prejudicial evidence, by the court's refusal to sever the charge of possession of drug paraphernalia, or by prosecutorial misconduct; and that no evidence should be suppressed because of the warrantless search of Duffy's person and the mobile home in which he was arrested. We affirm Duffy's convictions for felony murder and tampering with evidence, and we vacate, on double-jeopardy grounds, his conviction for robbery.


¶2 On March 7, 1994, at about 6:00 p.m., Elizabeth Somerville arrived at the Manor Care Nursing Home to pick up her husband who was a client in a day-care program for victims of Alzheimer's disease. As she walked from her car she was attacked by a man who knocked her down, inflicted a fatal wound to her head, and ran off with her purse. An autopsy revealed that she incurred several bruises caused by the struggle over her purse and that she died as a result of a "cranial cerebral injury." At the time of her death, Somerville was seventy-six years old.

¶3 Several people witnessed the attack. Michael Friedlander, who was in the Manor Care parking lot getting into his truck, heard Somerville yell and saw her resisting a man who swung her around, pushed her to the ground, possibly hit her, and then took off running. Friedlander later described the man as having sandy-colored or brown hair and a fairly long beard.

¶4 Bridgette Foster and Jason Forkel were across the street from Manor Care, parking their cars in a lot near the CitiBank building where they both were employed. Foster was distracted by the commotion outside the nursing home and was suddenly surprised by a man who ran directly in front of her car causing her to hit the brakes. She parked her car and walked to where she could observe the man, who by then had entered a yellow van. Foster got a good look at the man and noticed that he was stuffing something dark and bulky, possibly a purse,

Page 812

under his shirt. Foster later described the assailant as having shoulder-length hair which was "sandy blonde" or "dish water blonde."

¶5 Foster told Forkel, "I think I saw somebody get mugged ." As the van drove away, Forkel took note of the license number and the vehicle's description, and was able to get a brief look at the driver. Forkel later described the man as having "sandy dark" or "dirty blonde" hair which was "shaggy."

¶6 The observations of these witnesses were recorded by police and broadcast in an "All Points Bulletin." Shortly before midnight of the same day, a police officer noticed that a yellow van matching the description of the escape vehicle was parked at a Circle K convenience store. Other police were summoned, including Sergeant Reynaldo Sandoval, the Albuquerque Police Department Officer in charge of investigating Somerville's homicide, and Officer A.V. Romero. Richard Greene, the driver of the van, was placed in the back of a police vehicle, may have been handcuffed, and was questioned. The police officers concluded Greene did not fit the witnesses' description of the purse snatcher. Greene told the police that Shawn Duffy, who at that moment was in Greene's mobile home, had been driving the van earlier that day. According to Sergeant Sandoval, Greene's description of Duffy matched the descriptions of the assailant given by the eyewitnesses.

¶7 The police asked for Greene's permission to go to and search his home. Greene made it clear he did not like the fact that Duffy was in his home and said to the police, "Yes, you can have my permission to search." He expressed concern about the woman with whom he lived, Charlene Creel, as well as the children who lived in the trailer, but he gave the officers permission to "[d]o anything you want. Keep her out of danger. Go ahead and go through whatever you want."

¶8 Based on the information given by Greene, the police officers went to the mobile home between 1:00 and 2:00 in the morning and surrounded it. Uniformed officers approached the front door. The front door was open, and through the closed screen door they saw Duffy inside. Sergeant Sandoval, upon seeing Duffy, knew that he matched the descriptions of the individual who had attacked Somerville and determined at that moment to arrest Duffy. The officers identified themselves and told Duffy that they wanted to speak to him. Duffy immediately backed or ran away from the screen door. Because Duffy moved away from the door, the officers could no longer see him. The police thought he was trying to flee and were concerned about their own safety as well as the safety of the people who lived in the trailer. The police opened the screen door and went into the mobile home. As they entered, Duffy became agitated and aggressive, and screamed and yelled demanding to see a warrant. They tried to calm him down by saying, "Hey, we just need to talk to you," but he continued to yell and curse.

¶9 The police arrested Duffy and searched his person and later searched the home. In the pockets of the pants Duffy was wearing they found airline cards belonging to Somerville, a pocket knife, and a syringe. In his boots they found a .22 caliber handgun. Somerville's credit cards and checkbook were found on a coffee table in the living room.

¶10 The day after the purse-snatching incident, the eyewitnesses Foster and Forkel picked Duffy's picture from a six-picture photo array as the man they had seen attack Somerville. Forkel was somewhat less confident about his identification than was Foster. Sometime during the next few days, Friedlander saw Duffy's photograph on the evening news. He had no doubt that the man in the photograph was the same man he saw struggling with Somerville on March 7.


¶11 On March 15, 1994, a grand jury indicted Duffy under several alternative theories of murder with an enhancement because of the elderly age of the victim, NMSA 1978, § 30-2-1 (1994) (murder); NMSA 1978, § 31-18-16.1 (1993) (old-age enhancement); NMSA 1978, § 30-2-3 (1994) (manslaughter); robbery with an old-age enhancement, NMSA 1978, § 30-16-2 (1973) (robbery); § 31-18-16.1 (old age); tampering with evidence, NMSA 1978, § 30-22-5

Page 813

(1963); possession of a firearm or destructive device by a felon, NMSA 1978, § 30-7-16 (1987); and possession of drug paraphernalia, NMSA 1978, § 30-31-25.1(A) (1981, prior to 1997 amendment).

¶12 In August 1994 Duffy made several preliminary motions, four of which are relevant to this appeal, and these were addressed in an October hearing. Duffy moved to sever the charges of felon in possession of a firearm and possession of drug paraphernalia, arguing that he would be prejudiced if they were not addressed in a separate trial. Severance was granted only for the firearm charge. He moved to exclude evidence that he claimed was irrelevant including the fact that Somerville's husband suffered from Alzheimer's disease. This motion was denied. A motion to exclude all prior convictions was granted with the exception that Duffy, if he testified, could be cross-examined regarding a 1988 conviction for residential burglary. Duffy argued that the searches of the mobile home and his person were warrantless, not proper as an incident to a lawful arrest, conducted without valid consent, and not excused by any exigent circumstances. He moved to suppress all physical evidence seized from these searches. Among the evidentiary items at issue were the syringe found in Duffy's pants pocket and the .22 caliber handgun found in his boots. The court denied the motion to suppress.

¶13 The trial began on December 14, 1994. During the trial there were several actions by the prosecution and decisions by the court that Duffy now claims violated his right to a fair trial. We will describe each of these incidents in turn in the remainder of this opinion as we discuss the legal issues they raise.

¶14 On October 26, 1994, the jury found Duffy guilty of first-degree felony murder, guilty of robbery with an old-age enhancement, guilty of tampering with evidence, and not guilty of possession of drug paraphernalia. Several months later, in May 1995, Duffy pleaded guilty to the severed charge of felon in possession of a firearm or destructive device, and he admitted that, in light of the fact that he had been convicted of three prior felonies, he was a habitual offender. See NMSA 1978, § 31-18-17 (1993). The sentences for these crimes were added to his sentences under the October jury verdict, for a total sentence of life plus twenty-one-and-one-half years.

¶15 On appeal, Duffy raises six issues: that his convictions for both felony murder and robbery violate constitutional protections against double jeopardy because both crimes are based on the same unitary conduct; that the felony of robbery is not independent from the cause of Somerville's death and so cannot serve as the basis of a conviction of felony murder; that, under the doctrine of cumulative error, he was denied a fair trial by the admission of prejudicial evidence, by the court's refusal to sever the...

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