State v. Corneau, 10518
| Citation | 1989 NMCA 40,781 P.2d 1159,109 N.M. 81 |
| Decision Date | 16 May 1989 |
| Docket Number | No. 10518,10518 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Gary CORNEAU, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
The court's opinion filed March 21, 1989, is hereby withdrawn and the following substituted therefor. Defendant appeals his convictions for criminal sexual penetration in the second degree (CSP II) contrary to NMSA 1978, Section 30-9-11(B)(4) (Repl.Pamp.1984) 1 and for false imprisonment contrary to NMSA 1978, Section 30-4-3 (Repl.Pamp.1984). He makes the following contentions on appeal: (1) The trial court erred in allowing the state to use false imprisonment as the underlying felony for CSP II and as a separate offense when there was no evidence of force or restraint separate and apart from the force used to "cause" the sexual intercourse. Therefore, defendant urges, the highest offense for which he could be convicted was criminal sexual penetration in the third degree (CSP III) contrary to Section 30-9-11(C), with false imprisonment as the proper lesser included offense. (2) Related to this issue, the trial court erred in refusing to give defendant's requested instruction on CSP III. (3) The trial court erred in granting the state's motion for joinder of two criminal cases involving different victims. (4) The trial court erred in denying defendant's motion to suppress the fruits of a warrantless search. (5) Defendant was denied effective assistance of counsel.
We hold it was not error, under the facts of this case, for the trial court to submit to the jury the offenses of CSP II, with false imprisonment as both the underlying felony and a separate crime. Defendant's double jeopardy rights were not violated, notwithstanding guilty verdicts on both charges, since the trial court entered judgment running the sentences concurrently. We also hold, however, it was error not to instruct on CSP III and, therefore, we reverse and remand for a new trial on the charges of CSP II and false imprisonment. Because the jury acquitted defendant of all charges involving one victim, and reversal and remand for a new trial of the charges involving the other victim is required, we need not reach the joinder issue. We do decide the suppression of evidence question, since that issue will likely arise on retrial. We hold that the evidence was not improperly admitted. Finally, we hold that defendant was not denied effective assistance of counsel. Accordingly, we reverse and remand for new trial.
Defendant was originally charged with committing false imprisonment and CSP II against two victims. Although separately indicted, defendant was tried for the offenses against both victims in one trial, after the state's motion to join the two indictments was granted. Defendant was acquitted of all offenses relating to the first victim and was convicted on the counts involving the second victim, from which he now appeals.
The second victim met defendant at a Santa Fe nightclub in May 1987, when defendant offered her a ride home. According to the victim, defendant stopped at his residence instead of taking her directly home. She waited outside the premises in defendant's vehicle for approximately ten to fifteen minutes while defendant went inside. Defendant then returned to his vehicle and asked the victim to come inside, which she agreed to do so she could use the restroom. Once they were inside, defendant opened a can of beer and talked with the victim. He began to make sexual advances, which the victim rebuffed. She then asked him whether he was going to take her home. He responded, "You're not going anywhere."
The victim testified that defendant then forced her to his bed and forced her to have sexual intercourse after she resisted him and after he made several threats, including a threat to kill her. She hid her wallet between the bed and the wall to corroborate her version of what occurred or so she could be identified if defendant did kill her. Afterwards, the victim dressed, went to the living room, managed to unlock the front door while defendant turned his back, and ran out of the house. The victim threw her shoe against a neighbor's window to obtain assistance. She successfully roused that neighbor, the landlord, and telephoned the police from his residence.
The police arrested defendant and took him into custody. After defendant was in custody, the police entered his apartment on three separate occasions. First, the officers at the scene made an initial search of defendant's apartment to determine whether there were any additional suspects, victims, or weapons inside. After this first entry, the victim told the police she had left her wallet in the apartment and had lost a button from her clothing. The police officers were uncertain whether they could legally re-enter the apartment to search for those items, absent a warrant. Following departmental policy, they telephoned an assistant district attorney, who gave them permission to proceed with the warrantless search based on exigent circumstances. During this second search, the officers recovered the victim's wallet, but did not seize the button, even though one of the officers saw it. The third entry occurred several days later, after another officer, who was not present the night of the crime, had obtained a warrant. The button was seized as evidence during this third search.
The offense of CSP II as charged in this case and as set out in Section 30-9-11(B) "consists of all criminal sexual penetration perpetrated ... (4) in the commission of any other felony." Criminal sexual penetration is the "unlawful and intentional causing of a person, other than one's spouse, to engage in sexual intercourse." Sec. 30-9-11. The offense of false imprisonment, defined in Section 30-4-3, "consists of intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so." CSP III consists of all criminal sexual penetration perpetrated through the use of force or coercion. Defendant was charged with CSP II because he was allegedly engaged in the felony of false imprisonment when he committed the act of CSP. He was not charged with CSP III.
As we understand defendant's argument, he contends that, because false imprisonment is properly a lesser included offense of CSP III, it should not be used as the underlying felony to enhance that crime to CSP II. He argues that the same "force or coercion," see NMSA 1978, Sec. 30-9-10(A) (Repl.Pamp.1984), necessary to establish CSP III constitutes the restraint necessary to prove false imprisonment. Thus, according to defendant, since the same proof of force is required to establish CSP III as to establish false imprisonment, to permit false imprisonment to elevate the act to CSP II effectively nullifies the crime of CSP III. He urges that CSP III was the only proper charge and that false imprisonment is the proper lesser included offense of that charge.
Defendant presents double jeopardy and merger arguments, which we find inapplicable. Merger is an aspect of double jeopardy that applies to the concept of multiple punishment when multiple charges are brought in a single prosecution. State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App.1977). In State v. Srader, 103 N.M. 205, 704 P.2d 459 (Ct.App.1985), we held that the defendant's double jeopardy rights were protected because he was given concurrent sentences for the three crimes upon which he was convicted, thereby escaping multiple punishment. Id. at 206, 704 P.2d at 460. In the present case, defendant was sentenced to concurrent terms for CSP II and false imprisonment. Pursuant to Srader, we reject defendant's double jeopardy and merger claims, since defendant's sentences for CSP II and false imprisonment are to run concurrently.
Although defendant uses the terms "double jeopardy" and "merger," in essence, his argument is one of legislative intent. He argues that the state's charging pattern in this instance does not rely on an independent felony to aggravate CSP III to CSP II. Thus, according to defendant, the state's charging pattern in effect nullifies the legislatively created offense of CSP III, because almost every act of causing a person to engage in sexual intercourse through the use of physical force or violence necessarily involves restraining or confining that person against his or her will without lawful authority. Defendant's argument is analogous to the independent felony rule utilized in those jurisdictions having a felony murder theory of homicide. In those jurisdictions, it has been held that, in order for a defendant to be charged with felony murder, the underlying felony must be independent or collateral to the homicide. See Sullinger v. State, 675 P.2d 472 (Okla.Crim.App.1984); Annotation, Application of Felony-Murder Doctrine Where the Felony Relied Upon Is an Includible Offense With the Homicide, 40 A.L.R.3d 1341 (1971).
We reject this argument. We recognize that determining whether an offense is a lesser included offense requires us to look at the particular facts of the case to see whether the greater offense could be committed without necessarily also committing the lesser. State v. DeMary, 99 N.M. 177, 655 P.2d 1021 (1982). Ordinarily, almost any act of CSP will involve a restraint or confinement that would constitute false imprisonment. However, we disagree with defendant's contention that the facts in this case do not support a finding of false imprisonment before or after the forcible intercourse. Evidence exists in the record to support a finding by the jury that the underlying felony of false...
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