State v. Contreras

• Decision Date: 16 August 1995
• Docket Number: No. 21455,21455
• Citation: 120 N.M. 486,1995 NMSC 56,903 P.2d 228
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Michael CONTRERAS, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 228

903 P.2d 228

120 N.M. 486

STATE of New Mexico, Plaintiff-Appellee, v. Michael CONTRERAS, Defendant-Appellant.

No. 21455.

Supreme Court of New Mexico.

Aug. 16, 1995.

Rehearing Denied Sept. 22, 1995.

[120 N.M. 487] Sammy J. Quintana, Chief Public Defender, Sue Anne Herrmann, Patrick L. Lopez, Assistant Appellate Defenders, Santa Fe, for appellant.

Tom Udall, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, for appellee.

OPINION

RANSOM, Justice.

Michael Contreras was convicted on one count of felony murder under NMSA 1978, Section 30-2-1(A)(2) (Repl.Pamp.1994), one count of armed robbery under NMSA 1978, Section 30-16-2 (Repl.Pamp.1994), one count of tampering with evidence under NMSA 1978, Section 30-22-5 (Repl.Pamp.1994), and one count of unlawful taking of a vehicle under NMSA 1978, Section 66-3-504 (Repl.Pamp.1994). The trial court sentenced him to life imprisonment for the felony murder conviction, nine years for the armed robbery conviction to run consecutively to the life term, and eighteen months each for tampering with evidence and unlawful taking of a vehicle, both of the latter sentences to run concurrently with the armed robbery term. Contreras appeals to this Court pursuant to SCRA 1986, 12-102(A)(2) (Repl.Pamp.1992) (direct appeal from life sentence), arguing that the trial court violated the constitutional prohibition against double jeopardy by sentencing him for both the felony murder conviction and the underlying predicate felony conviction. Finding that the trial court did violate Contreras's right to be free from multiple punishments, we reverse the armed robbery conviction. We affirm the other convictions and sentences.

Facts. At 10:30 p.m. in the evening of May 14, 1992, cab driver Peter Doran was dispatched to a gas station to pick up a passenger who had given his name as Frank. About fifteen to thirty minutes later two men heard Doran call for help and discovered that Doran had been stabbed. The men telephoned for help, and Doran was taken to the hospital where he died. The cause of death was a five to six inch stab wound that had pierced Doran's right lung.

Early the next morning the cab company reported to the police that Doran and his cab were missing. Later that morning a representative of the cab company went with the police to an apartment complex to identify what turned out to be Doran's cab. Missing from the cab were Doran's wallet and a cellular phone. After further investigation the police found the keys to the cab and a bloody fish-filleting knife on the roof of the apartment complex. The knife had a five and three-quarter inch blade and blood stains consistent with Doran's blood.

Police later received a tip that Contreras had killed Doran. Police contacted Contreras's employer, the Seattle Fish Company, and discovered that Contreras filleted fish for the company using knives identical to the one discovered at the apartment complex. The general manager testified that Contreras did not work after May 10 and did not call in to excuse his absence until May 14. On that date Contreras requested his paycheck but was told that it would not be available until May 22. On May 20 Contreras again called and requested his paycheck. The police arrested Contreras on May 22 when he arrived at the fish company.

Contreras gave a voluntary statement when he was arrested and testified at trial that he did stab Doran. He stated that on May 14 he had called a cab to take him to his mother's apartment. When the cab arrived, he entered on the driver's side, carrying with him in a pouch around his waist a knife from work that he was to deliver to his mother. He testified that during the cab ride Doran made sexual advances toward him and that he had stabbed Doran from behind in order to stop the sexual advances. After being stabbed, Doran stopped the cab and exited. Contreras then took the cab and drove to the apartment complex where he parked the cab. He admits that he took a cellular phone from the cab, but he testified that he did not know what happened to Doran's wallet. After exiting the cab, Contreras threw the keys and the knife on the roof. He later gave the cellular phone to a friend in repayment of a debt.

The prosecution presented evidence that Contreras had been separated from his wife for approximately one year prior to the murder and that there had been financial problems throughout their marriage. Employees for the fish company testified that Contreras constantly asked to borrow money and requested advances on his paycheck. On the day of the murder Contreras's wife picked him up because she needed him to sign a tax return check and cash it at a bank. Contreras asked for some of the money, but his wife refused. Contreras testified that his landlord had given him two days to pay rent and that he wanted the money to pay rent and to "have fun spending it." Contreras was quite upset after his wife refused to give him money. He went home and slept most of the day. That evening he stabbed and killed Doran.

Substantial evidence supports the felony murder conviction. Contreras argues that there was not substantial evidence to support his conviction for felony murder. Relying on California cases, he argues that to be guilty of felony murder the accused must form the specific intent to rob concurrent with the murder. See, e.g., People v. Hayes, 52 Cal.3d 577, 276 Cal.Rptr. 874, 906, 802 P.2d 376, 408-09 (1990) (in bank) (upholding jury instruction that made it clear jury could convict of murder during commission of robbery only if it concluded defendant had formed intent to rob before striking fatal blow), cert. denied, 502 U.S. 958, 112 S.Ct. 420, 116 L.Ed.2d 440 (1991). Citing his own testimony that he stabbed Doran to ward off unwanted sexual advances and that he decided to take the cab and cellular phone only after the stabbing was complete, Contreras contends that there was not sufficient evidence from which a rational jury could conclude that he had the intent to rob Doran at the time he stabbed him.

In determining whether evidence is sufficient to support a conviction, we must view the evidence "in the light most favorable to the State, resolving all conflicts and indulging all permissible inferences in favor of the verdict." State v. McAfee, 78 N.M. 108, 110, 428 P.2d 647, 649 (1967). Applying that standard of review to this case, we conclude there was substantial evidence to support Contreras's conviction for felony murder.

The State presented evidence from several sources that Contreras was in desperate need of money and that on the day of the murder Contreras had been denied money by his wife and his employer. When Contreras called for a cab, he gave a false name. When the cab arrived, Contreras entered directly behind Doran, carrying a concealed knife. Finally, he stabbed Doran from behind, drove off with the cab immediately after Doran exited, stole Doran's cellular phone, and, inferentially, stole his wallet. All of this evidence supports the inference that Contreras intended to rob Doran at the time he stabbed him.

The jury was instructed that to find Contreras guilty of felony murder, it had to find he "caused the death of Peter Doran during the commission of armed robbery." (Emphasis added.) We will presume the jury followed this instruction. See SCRA 1986, 13-2002 (Repl.Pamp.1991) (duty to follow instructions). The fact that the jury returned a guilty verdict after receiving this instruction indicates to us that it did not believe Contreras's testimony that the robbery was done as an afterthought. Based on the above stated evidence, the jury rationally could have concluded beyond a reasonable doubt that Doran's death occurred during the commission of an armed robbery. Therefore, we will not disturb the felony murder conviction.

Consecutive sentences for felony murder and the underlying felony violates the Double Jeopardy Clause. Contreras also argues on appeal that the trial court violated the constitutional guarantees embodied in the Double Jeopardy Clause. See U.S. Const. amend. V ("No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb."). Specifically, Contreras contends that it was unconstitutional for the trial court to sentence him for both felony murder and the underlying felony of armed robbery.

General double jeopardy principles. The Double Jeopardy Clause protects against both successive prosecutions and multiple punishments for the same offense. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991). This case involves multiple punishments. In Swafford this Court adopted a two-part inquiry to determine whether multiple punishments have been imposed unconstitutionally. Id. at 13, 810 P.2d at 1233. The first part of the inquiry involves the question whether the conduct underlying the offenses is unitary. Id. Because the Double Jeopardy Clause does not prohibit imposition of multiple punishments for "discrete acts violative of the same statute," it is only "if it reasonably can be said that the conduct is unitary ... [that] one must move to the second part of the inquiry." Id. at 14, 810 P.2d at 1224.

Once we have determined that the conduct is unitary, we must answer the question whether our state legislature intended multiple punishments for unitary conduct. Id. Unless the legislature expressly provides for multiple punishments, we must determine legislative intent by applying the test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). See Swafford, 112 N.M. at 14, 810 P.2d at 1224.

Contreras's conduct was unitary. Notwithstanding his "afterthought" argument, Contreras urges that the conduct in this case nonetheless was unitary. Conduct is separate and distinct and not unitary if "events are sufficiently separated by either time or space," id. at 13, 810 P.2d at 1223, or "the quality and nature of the acts or ......