State v. Beard
| Decision Date | 31 January 2019 |
| Docket Number | A-1-CA-35014 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRIAN BEARD, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
John Kloss, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant Brian Beard appeals his convictions for trafficking by possession with intent to distribute; tampering with evidence; resisting, evading, or obstructing an officer; possession of drug paraphernalia; and battery upon a peace officer. Defendant raises the following issues: double jeopardy, improper expert witness testimony, sufficiency of the evidence, improper prosecutorial comment on his right to remain silent, and improper exclusion of his proposed jury instructions. We conclude Defendant's convictions for both battery upon a peace officer and resisting, evading, or obstructing an officer violate the prohibition against double jeopardy. We therefore remand to the district court to vacate Defendant's conviction for resisting, evading, or obstructing an officer. We affirm Defendant's remaining convictions.
{2} Detectives Daniel Porter and Erik Meek witnessed what appeared to be a drug transaction between a female and Defendant. They approached Defendant, who was alone inside his vehicle with the driver-side window down. Unable to exit his vehicle, Defendant kicked Detective Porter twice through the driver-side window, and then attempted to climb through that window. The detectives ultimately arrested Defendant and discovered a bag containing thirteen crack cocaine rocks in between his buttocks. Because this is a memorandum opinion andthe parties are familiar with the facts and procedural history of this case, we reserve discussion of the pertinent facts for our analysis.
{3} Defendant argues the following issues on appeal: (1) his convictions for battery upon a peace officer and resisting, evading, or obstructing an officer constitute multiple punishments for the "same offense" as prohibited by the double jeopardy clauses of the United States and New Mexico Constitutions; (2) the district court erred in permitting Detective Porter to testify as an expert witness; (3) the State did not produce sufficient evidence to support Defendant's convictions for trafficking by possession with intent to distribute and tampering with evidence; (4) the district court erred in failing to grant a mistrial after the State commented on Defendant's silence; and (5) the district court erred in refusing to give jury instructions on self-defense and unlawfulness related to the battery charges. We address each argument in turn.
{4} The United States and New Mexico Constitutions both prohibit any person from being "twice put in jeopardy" for the same offense. U.S. Const. amend. V; N.M. Const. art. II, § 15. "Defendant need not have preserved this issue in order to raise it on appeal." State v. Sotelo, 2013-NMCA-028, ¶ 18, 296 P.3d 1232.
"Double jeopardy presents a question of law, which we review de novo." Id. (internal quotation marks and citation omitted). The double jeopardy prohibition against multiple punishments "relates to two general categories of cases: cases in which a defendant has been charged with multiple violations of a single statute based on a single course of conduct, known as 'unit of prosecution' cases; and cases in which a defendant is charged with violations of multiple statutes for the same conduct, known as 'double-description' cases." State v. DeGraff, 2006-NMSC-011, ¶ 25, 139 N.M. 211, 131 P.3d 61. Defendant raises a double-description argument, arguing he was convicted of battery upon a peace officer and resisting, evading, or obstructing an officer based on the same conduct.
{5} Our Supreme Court "synthesized the many varied theories set forth in both New Mexico and federal decisional law to come up with a single test for multiple punishment cases." State v. Frazier, 2007-NMSC-032, ¶ 14, 142 N.M. 120, 164 P.3d 1 (citing Swafford v. State, 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223). "The synthesis performed in Swafford resulted in our [Supreme Court's] adoption of what is generally a two-part inquiry for double-description claims, first analyzing whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes, and, if so, proceeding to analyze whether the [L]egislature intended to create separately punishable offenses." State v. Gutierrez,2011-NMSC-024, ¶ 51, 150 N.M. 232, 258 P.3d 1024 (internal quotation marks and citation omitted).
{6} Defendant asserts his conduct underlying the convictions for battery upon a peace officer and resisting, evading, or obstructing an officer was unitary. "Separate punishments are permissible and conduct is not unitary if the offenses are separated by sufficient indicia of distinctness." State v. Ford, 2007-NMCA-052, ¶ 12, 141 N.M. 512, 157 P.3d 77 (internal quotation marks and citation omitted). "To determine whether a defendant's conduct was unitary, we consider such factors as whether the acts were close in time and space, their similarity, the sequence in which they occurred, whether other events intervened, and a defendant's goals for and mental state during each act." Id. "The conduct question depends to a large degree on the elements of the charged offenses and the facts presented at trial." State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (internal quotation marks and citation omitted). "The proper analytical framework is whether the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses." Id. (internal quotation marks and citation omitted).
{7} The conduct underlying Defendant's convictions for battery upon a peace officer and resisting, evading, or obstructing an officer was unitary. Defendant'sconvictions were based on his actions following Detective Porter and Detective Meek's approach. After the detectives announced their presence, Defendant attempted to open the driver-side door with his left hand while his right hand was behind his back. To prevent Defendant from exiting the vehicle, Detective Porter pressed his body against the door. Defendant then attempted to open the door with both hands before realizing Detective Porter was holding it shut. With the window already rolled down, Defendant rotated onto his back, put his feet up, and kicked Detective Porter twice in the chest. When Defendant kicked Detective Porter the second time, Detective Porter grabbed Defendant's legs.
{8} Seeing this, Detective Meek ran from the passenger side toward the driver-side to assist Detective Porter. As Detective Meek ran to the driver-side, Defendant "squatted his body" and attempted to either lunge toward the passenger-side door or escape from Detective Porter's grasp. Detective Meek ran back toward the passenger-side of the vehicle, and Detective Porter continued to hold onto Defendant's legs. With both legs out of the driver-side window, Defendant reached out of the driver-side window, grabbed the top of his vehicle, and attempted to pull himself through the window. As Defendant was doing this, Detective Porter "pressed him back in the vehicle, trying to . . . hold him back in the vehicle." Detective Porter then pulled out his gun, at which point Defendant followed Detective Porter's orders and was ultimately arrested.
{9} The State acknowledges that the record does not establish much separation of time between the acts constituting the bases for the two separate charges. The record further establishes that these events occurred in the same space and in close sequence, and involved the same victim. After being told by the detectives to show his hands, Defendant attempted to exit the vehicle. Unable to do so, Defendant kicked Detective Porter through the open driver-side window, proceeded to lunge toward the passenger-side door, and attempted to escape through the driver-side window. Moreover, the acts were similar. Defendant's acts of resisting, abusing, and kicking Detective Porter all occurred after Detective Porter announced his presence and told Defendant to show his hands. Thus, all of these acts together could reasonably be viewed as having originated from Detective Porter's attempt to investigate a possible narcotics transaction while at the same time ensuring his and Detective Meek's safety. Finally, Defendant's goals for and mental state during each act support a conclusion that Defendant's conduct was unitary. All of the acts could reasonably be viewed as stemming from Defendant's goal of resisting or abusing Detective Porter as he performed his duties.
{10} The parties rely on different opinions from this Court to support their argument in favor of or against the conduct being unitary. Compare Ford, 2007-NMCA-052, ¶¶ 13-16 (), with State v. Lopez, 2008-NMCA-111, ¶¶ 10, 12-13, 144 N.M. 705, 191 P.3d 563 (...
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