State v. Bello

• Court: Court of Appeals of New Mexico
• Writing for the Court: ZAMORA, Judge.
• Citation: State v. Bello, 399 P.3d 380 (N.M. App. 2017)
• Decision Date: 02 March 2017
• Docket Number: NO. 34,165,34,165
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Armis BELLO, Defendant-Appellant.

399 P.3d 380

STATE of New Mexico, Plaintiff-Appellee,

v.Armis BELLO, Defendant-Appellant.

NO. 34,165

Court of Appeals of New Mexico.

Filing Date: March 2, 2017

Certiorari Denied, June 15, 2017, No. S-1-SC-36380

Hector H. Balderas, Attorney General, Santa Fe, NM, Charles J. Gutierrez, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

ZAMORA, Judge.

{1} Defendant Armis Bello appeals from his convictions for trafficking cocaine by distribution, contrary to NMSA 1978, Section 30-31-20(A)(2) (2006), and trafficking cocaine by possession with intent to distribute, contrary to Section 30-31-20(A)(3). Defendant argues that (1) his convictions violate the prohibition against double jeopardy, (2) the State presented insufficient evidence to sustain his convictions, and (3) he received ineffective assistance of counsel. We affirm in all respects.

BACKGROUND

{2} On November 11, 2009, an Albuquerque Police Department (APD) undercover narcotics team conducted an undercover operation in an area of the city known to police for narcotics-related activity. Detective David Jaramillo was the case agent for the operation and was the undercover officer responsible for making the narcotic purchases. Detective Jaramillo was dropped off in the targeted area, where he observed a man standing at the corner of an intersection with no apparent purpose and who appeared to be a "flagger" or a person that solicits sales of narcotics. The man was later identified as Ralph Franco.

{3} Detective Jaramillo approached Franco and asked whether Franco was "holding"—which is common street terminology for possessing narcotics for sale. After Detective Jaramillo indicated that he was looking for crack cocaine, Franco told him that he did not have any but that he could take Detective Jaramillo to another location to make a purchase. Detective Jaramillo followed Franco on foot to a parking lot a few blocks away. Once they arrived at the parking lot, Franco identified Defendant as the person selling the crack cocaine. Detective Jaramillo gave Franco a $ 20 bill and watched as Franco approached Defendant and gave him the money. In exchange, Defendant gave Franco an unknown substance. Franco returned to Detective Jaramillo and handed him a clear cellophane package containing what appeared to be a small rock of crack cocaine.

{4} According to Detective Jaramillo, the rock Franco gave him was very small, "way under the value" of the money exchanged. Staying "in role" Detective Jaramillo questioned Franco about being shortchanged, and then he approached Defendant directly. Defendant brushed Detective Jaramillo's complaint off and told him that the small rock was all he was getting. Detective Jaramillo asked Defendant if he had any more to sell, and Defendant indicated that he did. Detective Jaramillo bought a second rock from Defendant for ten dollars. As he left the parking lot, Detective Jaramillo gave his team the bust signal. Defendant, Franco, and a third subject identified only as Aguilar, were arrested.

{5} The two rocks Detective Jaramillo purchased were labeled and tagged into APD evidence. Both substances were tested by the APD crime lab and were positively identified as cocaine. Defendant was indicted for trafficking cocaine by distribution, conspiracy to commit trafficking, trafficking cocaine by possession with intent to distribute, and tampering with evidence. Defendant was convicted of trafficking cocaine by distribution and trafficking cocaine by possession with intent to distribute.

DISCUSSION

Double Jeopardy

{6} Defendant contends that his convictions for trafficking cocaine by distribution and possession of cocaine with intent to distribute violate the prohibition against double jeopardy. "A double jeopardy challenge is a constitutional question of law[,] which we review de novo." State v. Swick (Swick II ), 2012-NMSC-018, ¶ 10, 279 P.3d 747. "The Fifth Amendment of the United States Constitution[,] ... made applicable to New Mexico by the Fourteenth Amendment[,]" prohibits double jeopardy and "functions in part to protect a criminal defendant against multiple punishments for the same offense." Id. (internal quotation marks and citation omitted). Double jeopardy cases involving multiple punishments are classified as either double description cases, "where the same conduct results in multiple convictions under different statutes[,]" or unit of prosecution cases, "where a defendant challenges multiple convictions under the same statute." Id.

{7} In the present case, both parties assert that Defendant's convictions under Subsection (A)(2) (distribution) and Subsection (A)(3) (possession with intent to distribute) implicate a double description analysis. Defendant relies on this Court's decision in State v. Swick (Swick I) , 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, aff'd in part, rev'd in part by

Swick II , 2012-NMSC-018, 279 P.3d 747. In Swick I , the defendant illegally entered the victims' home, and once inside, beat and stabbed the victims before taking $ 14 and the victims' vehicle. Swick I , 2010-NMCA-098, ¶ 3, 148 N.M. 895, 242 P.3d 462. The defendant was convicted of one count of second degree murder, two counts of attempted murder, two counts of aggravated battery with a deadly weapon, two counts of aggravated burglary by battery, one count of aggravated burglary with a deadly weapon, two counts of armed robbery, two counts of conspiracy, and unlawful taking of a motor vehicle. Id. ¶ 1.

{8} On appeal, the defendant argued, among other things, that his convictions for aggravated burglary involving a deadly weapon, contrary to Subsection (B) of NMSA 1978, Section 30-16-4 (1963), and aggravated burglary involving battery, contrary to Subsection (C) of the same statute, violated his double jeopardy protections. See Swick I , 2010-NMCA-098, ¶ 26, 148 N.M. 895, 242 P.3d 462. This Court stated, "[w]hen convictions under separate subsections of a single statute are at issue, we apply the double[ ]description analysis." Id. ¶ 27. Applying a double description analysis to the facts of the case, we determined that the convictions did not "offend double jeopardy principles." Id. ¶¶ 28 -29.

{9} In Swick II , the New Mexico Supreme Court granted certiorari to address a number of issues, including whether the defendant's convictions under Section 30-16-4 violated double jeopardy.¹ See Swick II , 2012-NMSC-018, ¶¶ 6, 43-44, 279 P.3d 747. The Supreme Court applied a unit of prosecution analysis since the two convictions were under the same statute. Id. ¶ 33 (stating that "[w]e apply a unit[ ]of[ ]prosecution analysis because we are examining multiple convictions under the same statute"). The Supreme Court held that the two aggravated burglary convictions did violate double jeopardy. Id. ¶ 44. The Supreme Court did not offer an explanation or directly address the double description analysis applied by this Court in Swick I . For its unit of prosecution standard the Supreme Court relied on State v. Gallegos , 2011-NMSC-027, ¶ 31, 149 N.M. 704, 254 P.3d 655. Gallegos involved three convictions under the same subsection of the conspiracy statute. Id. Thus, it appears that double jeopardy claims involving multiple convictions under different statutes are to be analyzed the same way as double jeopardy claims based on multiple violations of different subsections under one statute—using the unit of prosecution standard analysis. See Swick II , 2012-NMSC-018, ¶ 10, 279 P.3d 747.

{10} We follow the approach taken by our Supreme Court in Swick II and apply a unit of prosecution analysis to Defendant's double jeopardy claim even though, like the subsections of the burglary statute in Swick II , the subsections of the trafficking statute have different elements. See Aguilera v. Palm Harbor Homes, Inc. , 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d 993 (recognizing that the Court of Appeals is bound by Supreme Court precedent).

{11} "In unit of prosecution cases, the defendant is charged with multiple violations of a single statute based upon acts that may or may not be considered a single course of conduct." State v. Sena , 2016-NMCA-062, ¶ 8, 376 P.3d 887. To determine the correct unit of prosecution, we consider "whether the [L]egislature intended punishment for the entire course of conduct or for each discrete act." Swafford v. State , 1991-NMSC-043, ¶ 8, 112 N.M. 3, 810 P.2d 1223. First, courts look to the language of the statute to determine if the Legislature has defined the unit of prosecution. Swick II , 2012-NMSC-018, ¶ 33, 279 P.3d 747. If so, the inquiry is complete and proceeds no further. Id. Where the unit of prosecution is not clearly defined in the language of the statute, courts proceed to analyze "whether a defendant's acts are separated by sufficient indicia of distinctness to justify multiple punishments." Gallegos , 2011-NMSC-027, ¶ 31, 149 N.M. 704, 254 P.3d 655 (internal quotation marks and citation omitted).

{12} In this case, we do not reach the second part of the test because we conclude that the Legislature defined the unit of prosecution to be one transfer of a controlled substance. See Swick II , 2012-NMSC-018, ¶ 33, 279 P.3d 747 (concluding that for Section 30-16-4(A) and (C) the Legislature defined the unit of prosecution to be an unlawful entry with intent to commit a felony therein). Section 30-31-20(A) provides in pertinent part: "[a]s used in the Controlled Substances Act, ‘traffic’ means the: (1) manufacture of a controlled substance ... ; (2) distribution, sale, barter or giving away of ... a controlled substance ...; or (3) possession [of a controlled substance] with intent to distribute." Here, Defendant was convicted of one count each of trafficking by distribution and trafficking by possession with intent to distribute. As used in the Controlled Substances Act, to " ‘distribute’ means to deliver"...