2 P.3d 264 (N.M. 1999), 23,796, State v. Nunez

Docket Nº:23,796, 23,860.
Citation:2 P.3d 264, 129 N.M. 63, 2000 -NMSC- 13
Opinion Judge:FRANCHINI, Justice.
Party Name:STATE of New Mexico, Plaintiff-Appellant, v. Jesus Diaz NUNEZ and David Michael Chavez, Defendants-Appellees. State of New Mexico, Plaintiff-Appellee, v. Edward Vasquez, and Alex Gallegos, Defendants-Appellants. State of New Mexico, Plaintiff-Appellee, v. Marguerite Vasquez, Defendant-Appellant.
Attorney:Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, for State of New Mexico., Liane E. Kerr, Albuquerque, for Jesus Diaz Nunez., Reber Boult, Albuquerque, for David Michael Chavez., Phyllis H. Subin, Chief Public Defender, C. David Henderson, Assistant Appel...
Judge Panel:BACA and SERNA, JJ., (Dissenting). SERNA, Justice (dissenting). BACA, J., concurs.
Case Date:December 30, 1999
Court:Supreme Court of New Mexico
 
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Page 264

2 P.3d 264 (N.M. 1999)

129 N.M. 63, 2000 -NMSC- 13

STATE of New Mexico, Plaintiff-Appellant,

v.

Jesus Diaz NUNEZ and David Michael Chavez, Defendants-Appellees.

State of New Mexico, Plaintiff-Appellee,

v.

Edward Vasquez, and Alex Gallegos, Defendants-Appellants.

State of New Mexico, Plaintiff-Appellee,

v.

Marguerite Vasquez, Defendant-Appellant.

Nos. 23,796, 23,860.

Supreme Court of New Mexico

December 30, 1999.

Rehearing Denied May 10, 2000.

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[129 N.M. 68] Patricia A. Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, for State of New Mexico.

Liane E. Kerr, Albuquerque, for Jesus Diaz Nunez.

Reber Boult, Albuquerque, for David Michael Chavez.

Phyllis H. Subin, Chief Public Defender, C. David Henderson, Assistant Appellate Defender, Susan Gibbs, Assistant Appellate Defender, Santa Fe, for Edward Vasquez and Marguerite Vasquez.

D. Eric Hannum, Albuquerque, for Alex Gallegos.

S. Rafe Foreman, Flower Mound, TX, for Saul Salcido.

Randi McGinn, Allegra C. Carpenter, Albuquerque, for Amicus Curiae New Mexico Criminal Defense Lawyer's Association.

Mark L. Drebing, Albuquerque, for Amicus Curiae City of Albuquerque and Albuquerque Police Department.

OPINION

FRANCHINI, Justice.

{1} This case concerns five consolidated appeals in which each of the defendants faced criminal charges for the possession or sale of drugs, and were also subject to the civil forfeiture of property, such as vehicles and currency, that was allegedly associated with the crime. These appeals each raise the same issue: whether civil forfeiture under the Controlled Substances Act, NMSA 1978, §§ 30-31-1 to -41 (1972, as amended through 1997), is punishment and is limited by the protections against double jeopardy guaranteed by the New Mexico Constitution, N.M. Const. art. II, § 15, and the double-jeopardy statute, NMSA 1978, § 30-1-10 (1963). We

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[129 N.M. 69] conclude that civil forfeiture under the Act is punishment for the purposes of New Mexico's protections against double jeopardy.

I. FACTS

{2} The double-jeopardy issue we address today was properly preserved at the trial level by all the defendants in these consolidated cases. Some of the defendants raised issues other than the one resolved by this opinion. Because we decide all the cases on double-jeopardy grounds, we will not address any other issues.

A. State v. Nunez

{3} Jesus Diaz Nunez was arrested on April 7, 1995, and, on May 9, 1995, was charged with possession of marijuana with intent to sell. On April 10, 1995, a complaint for forfeiture was filed against Nunez's 1981 Ford Crown Victoria, in which he was allegedly transporting the marijuana. Nunez was indigent and was unable to obtain legal representation to contest the forfeiture. He did not appear at the forfeiture hearing and a default judgment was entered in May 1995. See State ex rel. Department of Pub. Safety v. One 1981 Ford Crown Victoria, No. SF-95-789(c) (N.M.Dist.Ct. May 25, 1995) (Default Judgment).

{4} Nunez, through a public defender, on August 18, 1995, filed a motion to dismiss the criminal charges based upon the violation of the Double Jeopardy Clauses of the United States and New Mexico Constitutions. The court determined that the forfeiture was penal in nature and that "[s]ince the State elected to obtain forfeiture before seeking criminal punishment, the State cannot now seek a second punishment in a criminal proceeding; and, therefore, defendant's motion should be granted." See State v. Nunez, No. CR-95-128-S (N.M.Dist.Ct. Aug. 28, 1995) (Order to Dismiss). The State appeals, and we affirm.

B. State v. Chavez

{5} David Michael Chavez was arrested on June 20, 1994, for possession of drug paraphernalia and possession of marijuana with intent to distribute. The police seized $3268 in currency from his home. On July 7, 1994, Chavez was again arrested for possession of marijuana with intent to distribute. The Albuquerque Police Department (APD) police seized a 1986 Chevrolet van, which was allegedly used to transport the marijuana, $50 in currency found in the vehicle, and $300 in currency found in Chavez's home.

{6} On July 19, 1994, the APD filed a petition of forfeiture against the $3268 seized in June and, on August 8, 1994, filed a petition of forfeiture against the vehicle and $350 seized in July. Chavez filed answers to the petitions in which he asserted that he was the owner of the vehicle and currency seized by the police. Half a year after the forfeiture petitions were filed, criminal charges for the two arrests were filed against Chavez on February 9, 1995.

{7} In March 1995, Chavez and the APD arrived at two compromise settlements regarding the seized property. Regarding the vehicle and currency seized in July 1994, a judgment was entered in which the APD kept the $350 and the van was returned to Chavez. See State ex rel. Albuquerque Police Dep't v. One 1986 Chevrolet Blue and White Van, No. MS 94-162 (N.M.Dist.Ct. Mar. 6, 1995) (Judgment of Forfeiture). As to the $3268 seized in June 1994, a judgment was entered in which the APD kept $2179 and $1089 was returned to Chavez. See State ex rel. Albuquerque Police Dep't v. Three Thousand Two Hundred Sixty Eight Dollars, No. MS 94-147 (N.M.Dist.Ct. Mar. 9, 1995) (Judgment of Forfeiture).

{8} A few days after the forfeiture settlements, on March 13, 1995, Chavez filed a motion to dismiss the criminal charges. He argued that the State had punished him once by forfeiting his property and was therefore barred by principles of double jeopardy from punishing him a second time in the criminal proceedings. The trial court granted the motion to dismiss. See State v. Chavez, No. CR-95-312 (N.M.Dist.Ct. May 5, 1995) (Order re: Motion to Dismiss for Double Jeopardy). The State appeals, and we affirm.

C. State v. Gallegos

{9} Alex Gallegos was arrested for possession of cocaine on September 1, 1994.

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[129 N.M. 70] The police seized $299 found under his mattress. Gallegos testified that he was employed by a construction company and the money was the remainder of his paycheck which he had cashed earlier on the day of the arrest. The police testified that they asked Gallegos for proof, such as a pay stub or a letter from his employer, that the money was from a paycheck but that such proof was never provided. A forfeiture complaint was filed against the $299 on October 3, 1994. Gallegos, hoping to recover the money, sought the help of an attorney who told him that the legal fees for handling such a matter would cost far more than $299. Gallegos concluded he had no choice but to let the money go. A default judgment was entered on May 4, 1995, when Gallegos failed to appear to contest the forfeiture. See State ex rel. Albuquerque Police Dep't v. Two Hundred Ninety Nine Dollars, No. MS 94-00214 (N.M.Dist.Ct. May 4, 1995) (Default Judgment).

{10} Criminal charges were filed against Gallegos on April 27, 1995. He moved, on October 16, 1995, to dismiss the criminal charges on double-jeopardy grounds. This motion was denied. See State v. Gallegos, No. CR-95-1108 (N.M.Dist.Ct. Feb. 14, 1996) (Order). Gallegos pleaded guilty to possession of cocaine on February 28, 1996, and a judgment was filed in May 1996. See State v. Gallegos, No. CR-95-1108 (N.M.Dist.Ct. May 17, 1996) (Judgment, Sentence and Order Suspending Sentence). He now appeals his criminal conviction on double-jeopardy grounds, and we reverse.

D. State v. Edward Vasquez and State v. Marguerite Vasquez

{11} Edward and Marguerite Vasquez, husband and wife, were arrested on August 25, 1995, at a border patrol checkpoint. In October of 1995, they were charged with possession of cocaine with intent to distribute, conspiracy to distribute cocaine, possession of marijuana with intent to distribute, and conspiracy to distribute marijuana. The police seized a 1983 Ford Fairmont that was allegedly used to transport the drugs, $40 that was in Edward's possession, and $39 that was in Marguerite's possession. A petition of forfeiture against the vehicle and currency was filed on September 8, 1995. When the Vasquezes failed to appear to contest the forfeiture, a default judgment was entered on November 14, 1995. See In re Forfeiture of a White 1983 Ford Fairmont, No. CV-95-315 (N.M.Dist.Ct. Nov. 14, 1995) (Default Judgment of Forfeiture).

{12} In response to the narcotics charges on March 7, 1996, Edward filed a pre-trial motion to dismiss in which Marguerite claims to have joined, arguing that, because they had already been penalized by the forfeiture, double jeopardy prevented further prosecution. The trial court denied the motion, apparently at a hearing on March 12, 1996. Edward and Marguerite, in a single trial, were convicted on all counts by a jury on March 15, 1996. See State v. Vasquez, No. CR-95-383 (N.M.Dist.Ct. Mar. 21, 1996) (Judgment and Sentence). They now appeal their criminal convictions on double-jeopardy grounds, and we reverse.

II. NEW MEXICO AND THE FEDERAL CONSTITUTION

{13} It is settled law in New Mexico that "[w]e are not bound to give the same meaning to the New Mexico Constitution as the United States Supreme Court places upon the United States Constitution, even in construing provisions having wording that is identical, or substantially so, 'unless such interpretations purport to restrict the liberties guaranteed the entire citizenry under the federal charter.' " State ex rel. Serna v. Hodges, 89 N.M. 351, 356, 552 P.2d 787, 792 (1976) (quoting People v. Brisendine, 13 Cal.3d 528, 119 Cal.Rptr. 315, 531 P.2d 1099, 1112 (1975)), overruled on other grounds by State v. Rondeau, 89 N.M. 408, 412, 553 P.2d 688, 692 (1976). Moreover, "when this Court derives an...

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