State v. Alingog
| Decision Date | 17 September 1993 |
| Docket Number | No. 14191,14191 |
| Citation | 1993 NMCA 124,866 P.2d 378,116 N.M. 650 |
| Parties | STATE of New Mexico, Plaintiff-Appellant, v. Victoria A. ALINGOG, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
The State appeals from an order dismissing, on double-jeopardy grounds, Count I of a criminal information, aggravated assault on a peace officer with a deadly weapon, NMSA 1978, Sec. 30-22-22(A)(1) (Repl.Pamp.1984), based on Defendant's plea of no contest to Count V, resisting, evading, or obstructing an officer, NMSA 1978, Sec. 30-22-1 (Repl.Pamp.1984). Three issues are raised: (1) whether the district court erred in determining that double jeopardy barred conviction and punishment of Defendant on the aggravated assault charge; (2) whether the district court erred, under Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), in making the double-jeopardy determination before giving the jury an opportunity to convict or acquit Defendant; and (3) whether double jeopardy bars the retrial of Defendant on remand. We reverse on the second issue and, thus, do not reach the first issue, and we conclude that double jeopardy does not bar Defendant's retrial on remand.
On September 15, 1991, Defendant led officers from several law enforcement agencies on a prolonged car chase along Highway 54 near Alamogordo. The chase began when, after stopping Defendant at a checkpoint a short time earlier, Border Patrol Agent Holmes again stopped Defendant and observed signs of intoxication. Agent Holmes requested the presence of State Police Sergeant Arana and, while Holmes and Defendant waited for Sergeant Arana to arrive, Defendant started her vehicle and drove north on Highway 54. Agent Holmes pursued.
Eventually, Sergeant Arana joined in the pursuit, as did three Otero County Sheriff's Deputies. Defendant ignored commands to pull her vehicle over and continued to drive erratically at a high rate of speed. All vehicles participating in the chase were marked and had their flashing lights activated, and the officers were in full uniform.
The three deputies eventually were able to block Defendant's car and bring it to a stop. However, Defendant placed her car in reverse and drove directly at Deputy Woltz, who had exited his car. Defendant did not strike the deputy, but, despite his firing three rounds at a tire of Defendant's vehicle, Defendant was able to escape and drive northbound at high speed.
Later, Defendant attempted to run another roadblock, but failed. Defendant had to be bodily removed from her vehicle by the officers. She continued to resist when Deputy Woltz and other officers tried to handcuff her.
Based on these events, the State charged Defendant by criminal information with seven counts, only one of which was a felony: aggravated assault on a peace officer with a deadly weapon. The remaining six counts included the charge of resisting, evading, or obstructing an officer.
On the day of the trial, before jury selection, Defendant entered a plea of no contest to the six misdemeanor charges, including resisting, evading, or obstructing an officer. After entering this plea, Defendant moved that the remaining count of aggravated assault on a peace officer with a deadly weapon be dismissed on double-jeopardy grounds. Defendant further requested that the district court take her motion under advisement until after the State had presented its case, reasoning that the court had to hear the evidence in order to rule on the double-jeopardy motion. The prosecutor did not object to this procedure.
After the State rested, Defendant renewed her motion for dismissal based on double jeopardy. After argument by counsel, the district court first denied the motion, but then, after further argument, granted it. This appeal by the State followed.
Because we find the Johnson issue to be dispositive of this appeal, we address it first. Later in our opinion, we address Defendant's argument that double jeopardy bars reprosecution on remand.
Johnson concerned a defendant charged in the same indictment with four offenses stemming from the same incident. At arraignment, the defendant offered to plead guilty to two of the charged offenses, and the trial court accepted these pleas over the objection of the State. The trial court then granted the defendant's motion to dismiss the remaining two charges based on double jeopardy. The trial court agreed with the defendant that the two charges to which the defendant pled guilty were lesser included offenses of the remaining two charges.
In reversing the judgment of the Ohio Supreme Court, which affirmed the trial court, the United States Supreme Court held that the Double Jeopardy Clause did not bar further prosecution of the defendant on the remaining charges. Johnson, 467 U.S. at 494, 500, 104 S.Ct. at 2538, 2541. The Court ruled that neither the double-jeopardy protection against cumulative punishments in a single prosecution, id. at 499-500, 104 S.Ct. at 2540-2541, nor the double-jeopardy protection against multiple prosecutions for the same offense, id. at 500-02, 104 S.Ct. at 2541-43, prevents the State from continuing prosecution on a greater offense when a defendant has pled guilty, in the same proceeding, to a lesser included offense.
Turning to the instant appeal, our review of the record indicates that the district court's dismissal of the aggravated assault charge against Defendant was based on the double-jeopardy protection against cumulative punishments in a single prosecution. Additionally, Defendant continues to make a "single prosecution" argument on appeal, citing Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). Even assuming, without deciding, that punishment of Defendant for both the aggravated assault charge and the resisting, evading, or obstructing charge would violate this protection, Johnson clearly dictates that the State should be allowed the chance to obtain a determination of guilt or innocence on the aggravated assault charge. Because its reasoning is so clearly on point, we quote at length from the Supreme Court's opinion:
[B]efore [the defendant] can ever be punished for the [greater offenses] he [or she] will first have to be found guilty of those offenses. The trial court's dismissal of these more serious charges did more than simply prevent the imposition of cumulative punishments; it halted completely the proceedings that ultimately would have led to a verdict of guilt or innocence on these more serious charges. Presumably the trial court, in the event of a guilty verdict on the more serious offenses, will have to confront the question of cumulative punishments ... but because of that court's ruling preventing even the trial of the more serious offenses, that stage of the prosecution was never reached. While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [the defendant] for such multiple offenses in a single prosecution.
467 U.S. at 499-500, 104 S.Ct. at 2541. This language makes it clear that the single-prosecution double-jeopardy protection will not be implicated in this case unless convictions are obtained on both the resisting, evading, or obstructing charge and the aggravated assault charge.
We are not persuaded by Defendant's attempts to distinguish Johnson. First, Defendant points out that the State objected to the entry of guilty pleas in Johnson, while the State here did not object to Defendant's no contest plea. We fail to see how this fact affects the applicability of Johnson 's rationale to the instant appeal. Defendant seems to suggest that, by failing to object, the State somehow forfeited its right to a "full and fair opportunity to present its case." We do not believe that the State's willingness to accept a plea to a lesser charge has any bearing on the State's entitlement to seek a determination of guilt or innocence on the more serious charge.
Defendant also suggests that her case raises a concern about "prosecutorial overreaching," a concern that the Johnson Court specifically found was not present in that case. However, Johnson discussed prosecutorial overreaching in the context of distinguishing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), a case involving successive prosecutions. Johnson 's reasons for distinguishing Brown, and for finding inapplicable the concern about overreaching, were rooted in the fact that Brown involved successive prosecutions while Johnson involved a single prosecution. Johnson, 467 U.S. at 501-02, 104 S.Ct. at 2541-43. The instant appeal also involves a single prosecution, and the Johnson reasoning applies equally well here. We believe, as did the Johnson Court, that "[t]here simply has been none of the governmental overreaching that double jeopardy is supposed to prevent." Id. at 502, 104 S.Ct. at 2542.
Finally, Defendant claims that Johnson is distinguishable because, unlike the State in Johnson, the State here "received a full and fair opportunity to present its entire case." We concede that the State here had an opportunity to present its case, but reject Defendant's argument because the Johnson Court was concerned with the State's right to "one full and fair opportunity to convict those who have violated its laws." Id. at 502, 104 S.Ct. at 2542 (emphasis added). Here, the State clearly was deprived of...
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