Kersey v. Hatch, No. 31,325.

• Docket Nº: No. 31,325.
• Citation: 237 P.3d 683, 148 N.M. 381
• Case Date: April 14, 2010
• Court: Supreme Court of New Mexico

148 N.M. 381
237 P.3d 683

Jerry Alvin KERSEY, Petitioner,
v.
Timothy HATCH, Warden, Respondent.

No. 31,325.

Supreme Court of New Mexico.

April 14, 2010.

237 P.3d 684

237 P.3d 685

Hugh W. Dangler, Chief Public Defender, John L. Walker, Assistant Public Defender, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

MAES, Justice.

{1} The dispositive issue in this appeal is whether State v. Frazier, 2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 P.3d 1, which held that “the predicate felony is always subsumed into a felony murder conviction, and no defendant can be convicted of both,” applies retroactively to habeas corpus proceedings. Pursuant to the principles announced by the United States Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), we conclude that Frazier announced a new rule of law, which is procedural in nature and, therefore, not subject to retroactive application. Accordingly, we affirm the trial court's dismissal of the writ of habeas corpus filed by Jerry Alvin Kersey (Petitioner).

I. BACKGROUND

{2} The facts of this case are fully articulated in State v. Kersey, 120 N.M. 517, 518-20, 903 P.2d 828, 829-31 (1995) and, therefore, will be summarized only briefly in this opinion. On September 26, 1991, Petitioner went to Roswell High School where he impersonated a police detective and asked to speak to a student, Steven Farley (Victim), regarding a fight that had occurred the previous night. Id. at 519, 903 P.2d at 830. After informing school officials that he wanted to question Victim at the police station, Petitioner escorted Victim outside, frisked him, handcuffed him, and put him in the back seat of a station wagon. Id.

{3} Petitioner and his half-brother, Michael Clark, transported Victim to the Cedar Lake Lounge where they killed Victim by strangling him with an electrical cord and stabbing him eleven times with an ice pick. Id. Thereafter, Petitioner called Victim's mother and demanded a ransom of $50,000 for the return of her son. Petitioner subsequently turned himself in to local police and confessed his involvement in Victim's murder. ¹ Id. at 519-20, 903 P.2d at 830-31.

{4} Petitioner was charged with first-degree murder contrary to NMSA 1978, Section 30-2-1(A)(1) or (2) (1980, prior to 1994 amendment), kidnapping contrary to NMSA 1978, Section 30-4-1 (1973, prior to 1995 amendment), conspiracy to commit first-degree murder and/or kidnapping contrary to NMSA 1978, Section 30-28-2(A) (1979), and tampering with evidence contrary to NMSA 1978, Section 30-22-5 (1963, prior to 2003 amendment). Following a jury trial, Petitioner was found guilty of the offenses charged. Kersey, 120 N.M. at 518, 903 P.2d at 829. The jury returned “a general verdict of first degree murder under the alternate theories of willful and premeditated murder and felony murder.” Id. at 521 n. 1, 903 P.2d at 832 n. 1; see also § 30-2-1(A)(1), (2) (distinguishing between “any kind of willful, deliberate and premeditated killing” and a killing “in the commission of or attempt to commit any felony”). The trial court sentenced Petitioner to life imprisonment plus eighteen years. Kersey, 120 N.M. at 518, 903 P.2d at 829.

{5} Petitioner appealed directly to this Court, claiming, in relevant part, that his conviction and sentence for the crime of kidnapping violated the double jeopardy clause of the New Mexico and United States Constitutions because it was used “to elevate second-degree murder to first-degree [felony] murder.” Id. at 522, 903 P.2d at 833. This Court noted that the “Double Jeopardy Clause does not prohibit multiple punishment

237 P.3d 686

for ‘discrete acts violative of the same statute,’ ” and that acts are discrete when they are “ ‘separated by sufficient indicia of distinctness,’ ” meaning that they are “ ‘sufficiently separated by either time or space (in the sense of physical distance between the places where the acts occurred).’ ” Id. (quoting Swafford v. State, 112 N.M. 3, 13-14, 810 P.2d 1223, 1233-34 (1991)). Thus, a criminal defendant may be convicted of, and punished for, both felony murder and the underlying predicate felony when the conduct that forms the basis for each offense is “ ‘separate and distinct.’ ” Id. at 523, 903 P.2d at 834 (quoting Swafford, 112 N.M. at 14, 810 P.2d at 1234).

{6} Applying this standard to the facts underlying Petitioner's convictions, this Court observed that

[Petitioner] kidnapped [Victim] at the high school in Roswell about 10:30 a.m. Although kidnapping is a continuing offense, the conduct required to establish kidnapping was completed at the time [Petitioner], with the intent to hold [Victim] for service, unlawfully and forcibly took him from the school. This conduct alone did not violate the felony murder statute. The felony-murder statute was violated more than two hours later, nearly sixty miles distant from the abduction, when [Victim] was strangled and stabbed to death. The kidnapping was sufficiently separated in time and space from the murder to establish two distinct crimes.

Id. Accordingly, this Court held that Petitioner's “sentences for both kidnapping and felony murder do not violate the double jeopardy clauses of either the New Mexico or the United States Constitutions.” Id.

{7} Thereafter, Petitioner filed a writ of habeas corpus in the United States District Court for the District of New Mexico, claiming, in relevant part, that “the sentencing court's imposition of consecutive sentences for his kidnapping and murder convictions violated his constitutional right against double jeopardy.” Kersey v. Lytle, No. 99-2007, 2000 WL 331873, at *2 (10th Cir. March 30, 2000). The district court dismissed the writ of habeas corpus and Petitioner appealed to the Tenth Circuit Court of Appeals. Id. at * 1. The Tenth Circuit Court of Appeals “affirm[ed] the district court's denial of relief on double jeopardy grounds,” because the “imposition of consecutive sentences for [Petitioner's] kidnapping and felony murder convictions is not contrary to, or an unreasonable application of, Supreme Court precedent.” Id. at *6; see 28 U.S.C. § 2254(d)(1) (Supp. II 1996) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”).

{8} In May 2007, this Court issued its opinion in Frazier, which inquired for the first time whether “our felony murder statute expresses a clear legislative intent that a killing during the commission of a felony constitutes unitary conduct in every case, thereby precluding a unitary conduct inquiry by this Court into the specific facts of the case.” 2007-NMSC-032, ¶ 17, 142 N.M. 120, 164 P.3d 1. After examining the language of our felony murder statute and jury instruction, we concluded that “the conduct supporting the felony murder and the underlying predicate felony [was] unitary by definition” because the statute “expressly requires that the killing happen ‘in the commission of’ the underlying felony.” Id. ¶ 23; see § 30-2-1(A)(2) ( “Murder in the first degree is the killing of one human being by another without lawful justification or excuse ... in the commission of or attempt to commit any felony.” (emphasis added)); Rule 14-202 NMRA (requiring the jury to find that the defendant caused the death of the victim during “the commission of” or “attempt to commit” the underlying felony). “Thus, when a jury finds a defendant guilty of felony murder, it has already determined the fact-based unitary conduct question-it has found that the killing happened during the commission of the underlying felony.” Frazier, 2007-NMSC-032, ¶ 23, 142 N.M. 120, 164 P.3d 1.

237 P.3d 687

{9} In Frazier, we recognized “that our holding represents a departure from certain cases included within our felony murder jurisprudence in which we have examined whether conduct is factually unitary, in some cases finding that it is not and allowing both convictions to stand.” Id. ¶ 31. For example, in Kersey and State v. Foster, 1999-NMSC-007, ¶¶ 29-35, 126 N.M. 646, 974 P.2d 140, we examined the language of the kidnapping statute (the underlying predicate felony) to find that the conduct supporting the defendants' kidnapping and felony murder convictions was separate and distinct and, therefore, did not violate the prohibition against double jeopardy. Frazier, 2007-NMSC-032, ¶ 34, 142 N.M. 120, 164 P.3d 1. We stated that

Foster and Kersey were correct in their analyses of the predicate felony statutes with respect to legislative intent on the issue of unitary conduct. However, those cases did not ask the question we ask here, which shifts the focus from the predicate felony statutes to the felony murder statute itself. That statute requires the killing to happen in the commission of a felony and the accompanying jury instructions require the jury to find that the killing happened during the commission of the predicate felony.... We do not believe the jury could so find and the language of the statute does not indicate that the legislature intended otherwise.

Id. ¶ 35. Accordingly, Frazier “clarif[ied] our precedent according to the legislative intent expressed in the felony murder statute.” Id.

{10} Thereafter, Petitioner filed a petition for writ of habeas corpus in the trial court, claiming that Frazier effectively overruled this Court's opinion in Kersey and, therefore, his kidnapping conviction must be vacated. The State moved to dismiss the petition, arguing that “[t]he Supreme Court specifically distinguishes [Petitioner's] case from Fraz...