State v. Borja-Guzman

• Decision Date: 09 January 1996
• Docket Number: D,No. 15982,BORJA-GUZMA,15982
• Citation: 121 N.M. 401,1996 NMCA 25,912 P.2d 277
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Enriqueefendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 277

912 P.2d 277

121 N.M. 401

STATE of New Mexico, Plaintiff-Appellee, v. Enrique BORJA-GUZMAN, Defendant-Appellant.

No. 15982.

Court of Appeals of New Mexico.

Jan. 9, 1996.

Certiorari Denied Jan. 22, 1996.

[121 N.M. 402] Appeal from the District Court of Dona Ana County; James T. Martin, District Judge.

T. Glenn Ellington, Chief Public Defender, Sue A. Herrmann, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

Tom Udall, Attorney General, Gail MacQuesten, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

OPINION

DONNELLY, Judge.

1. Defendant appeals from the judgment and sentence entered following his convictions of two counts of trafficking in heroin, two counts of trafficking in methamphetamine, and one count of conspiracy to distribute drugs. Three issues are presented on appeal: (1) whether Defendant's convictions of multiple counts of trafficking in controlled substances violate state and federal constitutional protections against double jeopardy; (2) whether the trial court erred in not instructing the jury on the single-intent doctrine; and (3) whether there was sufficient evidence to support Defendant's conspiracy conviction. We affirm.

FACTS

2. On April 12, 1994, at approximately 10:30 a.m., Defendant and Angela Barrera de Negrete met with special agents Jesus Carrillo and Rene Rodriguez in a restaurant parking lot in Santa Teresa, New Mexico. This meeting was pursuant to negotiations that took place the day before in El Paso, Texas. Defendant gave the undercover agents a sample of heroin and a sample of methamphetamine. After negotiating with the agents for the sale of a larger quantity of heroin and methamphetamine, Defendant and Barrera de Negrete agreed with the agents on an amount and price, and indicated they would meet the agents at 3:00 p.m. that same day to effect the transfer.

3. When Defendant and Barrera de Negrete arrived at the delivery site at the prearranged time, they showed Agent Carrillo the drugs: a plastic bag with approximately twelve ounces of black tar heroin and a cylinder of PVC pipe containing approximately three pounds of methamphetamine. Agent Carrillo then motioned to Agent Rodriguez and another undercover officer to drive up with the $50,000 payment. When Defendant and Barrera de Negrete went to the undercover agent's vehicle to inspect the cash, a law enforcement surveillance team identified themselves as law officers and arrested Defendant.

4. Thereafter, Defendant was indicted on two counts of trafficking in heroin, contrary to NMSA 1978, Section 30-31-20 (Cum.Supp.1995), two counts of trafficking in methamphetamine, contrary to Section 30-31-20, and one count of conspiracy to traffic in heroin and methamphetamine, contrary to NMSA 1978, Section 30-28-2 (Repl.Pamp.1994) and Section 30-31-20. Following a jury trial, Defendant was convicted on each of the charged offenses. His appeal seeks to invalidate one of the two counts of trafficking in heroin, one of the two counts of trafficking in methamphetamine, and his conspiracy conviction.

I. Claim of Double Jeopardy

5. Defendant contends that he was subjected to multiple punishments and convictions under Section 30-31-20, contrary to both the Double Jeopardy Clauses of the United States and the New Mexico Constitutions. He argues that the State improperly prosecuted and obtained multiple convictions of trafficking in controlled substances involving a continuous drug transaction under circumstances amounting to a single offense. Although this claim was not presented to the trial court, the issue of whether Defendant's multiple convictions violate the Double Jeopardy Clause of the state and federal constitutions by express statutory provision, implicates constitutional protections and may properly be raised for the first time on appeal. NMSA 1978, § 30-1-10 (Repl.Pamp.1994); State v. Jackson, 116 N.M. 130, 132-33, 860 P.2d 772, 774-75 (Ct.App.), cert. denied, 115 N.M. 795, 858 P.2d 1274 (1993).

6. We begin our analysis of this issue by noting that the Double Jeopardy Clauses of the United States and the New Mexico Constitutions preclude the imposition of multiple punishments for acts constituting a single criminal offense. See Herron v. State, 111 N.M. 357, 358, 805 P.2d 624, 625 (1991). The prohibitions contained in the state and federal constitutions against double jeopardy protect an accused from multiple prosecutions arising out of the same offense and from multiple punishments for the same offenses. State v. Contreras, 120 N.M. 486, 489, 903 P.2d 228, 231 (1995); see also Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977) ("The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units."). In the context of potential multiple punishment arising out of the prosecutor's selection of units of prosecution in a single proceeding, the double jeopardy issue is essentially one of legislative intent. New Mexico Taxation & Revenue Dep't v. Whitener, 117 N.M. 130, 135, 869 P.2d 829, 834 (Ct.App.1993), cert. granted, 117 N.M. 328, 871 P.2d 984, and cert. dismissed 121 N.M. 299, 910 P.2d 933 (1994); State v. Orgain, 115 N.M. 123, 125, 847 P.2d 1377, 1379 (Ct.App.), cert. denied, 115 N.M. 145, 848 P.2d 531 (1993).

7. The United States and New Mexico constitutional Double Jeopardy Clauses are similar in context. U.S. Const. amend. V; N.M. Const. art. II, § 15. Our Supreme Court has construed and interpreted the state Double Jeopardy Clause as providing the same protections offered by its federal counterpart. State v. Meadors, 121 N.M. 38, 49 n. 11, 908 P.2d 731, 742 n. 11 (1995); State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 625, 904 P.2d 1044, 1050 (1995); see Swafford v. State, 112 N.M. 3, 7 n. 3, 810 P.2d 1223, 1227 n. 3 (1991); State v. Rogers, 90 N.M. 604, 606, 566 P.2d 1142, 1144 (1977). Consequently, we apply the same analysis for Defendant's claims under both the federal and the state constitutional double jeopardy provisions.

8. New Mexico courts have not directly addressed the question of how a court should determine units of prosecution for drug trafficking counts under the state and federal constitutional Double Jeopardy Clauses. However, our Supreme Court has articulated specific guidelines for ascertaining the proper units of prosecution in a case involving multiple counts of criminal sexual penetration and specified the method for determining whether an accused's conduct constitutes separately prosecutable acts or merely distinct parts of the same offense. Herron, 111 N.M. at 361, 805 P.2d at 628. Similarly, in State v. Pierce, 110 N.M. 76, 84-85, 792 P.2d 408, 416-17 (1990), our Supreme Court reviewed the prosecutorial charging pattern and the defendant's claim of violation of double jeopardy arising out of multiple charges of child abuse. In State v. Brooks, 117 N.M. 751, 755, 877 P.2d 557, 561 (1994), Justice Ransom, speaking for the Supreme Court, noted that where a defendant is charged with embezzlement, "[t]he State has discretion to prosecute separate counts alone, ... to aggregate the takings and prosecute [for a single higher] felony alone; or to prosecute in the alternative, or even to combine certain acts and to prosecute others separately." (Citations omitted.)

9. Following the approach set forth in Herron, this Court has also applied a similar analysis and guidelines in cases involving multiple convictions of battery, State v. Mares, 112 N.M. 193, 199, 812 P.2d 1341, 1347 (Ct.App.), cert. denied, 112 N.M. 235, 814 P.2d. 103 (1991), and multiple convictions of assault with intent to commit a violent felony upon a peace officer, State v. Handa, 120 N.M. 38, 40, 897 P.2d 225, 227 (Ct.App.), cert. denied, 119 N.M. 771, 895 P.2d 671 (1995).

10. Defendant argues that his acts of giving the samples followed by delivery of the controlled substances agreed upon must be determined to constitute a single, continuous transaction involving each of the two types of drugs, because the language of Section 30-31-20 criminalizing drug trafficking does not disclose a legislative intent to authorize multiple punishments where a defendant distributes a sample and retains the remainder for the purpose of making a distribution to the same recipient under circumstances involving essentially the same time and place. He argues that this case warrants application of the rule of lenity. We disagree.

11. When reviewing questions of legislative intent involving issues of multiple punishments, we apply the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and Swafford, 112 N.M. at 7, 810 P.2d at 1227. See also Contreras, 120 N.M. at 489, 903 P.2d at 231 (unless legislature expressly authorizes multiple punishment for criminal acts, legislative intent is determined by applying test stated in Blockburger ). The Blockburger test is used to determine whether a defendant can be charged and convicted of violating two or more separate statutes for acts arising out of one transaction. 284 U.S. at 304, 52 S.Ct. at 182.

12. In addition to the issue of multiple charges in violation of multiple statutes, the Blockburger Court also addressed multiple violations of the same statute. The petitioner in Blockburger was convicted of two counts of selling morphine under a single provision of the Narcotics Act. He contended that since the two sales at issue were made to the same person within a short time period they comprised a single, continuing offense. 284 U.S. at 301-02, 52 S.Ct. at 181. After examining legislative intent, the Supreme Court concluded that the statute did not punish a defendant's conduct of engaging in the business of selling dangerous drugs, but instead the statute intended to penalize any sale of proscribed drugs. Id. at 302, 52 S.Ct. at 181. In interpreting the...