State v. Demongey
| Decision Date | 29 February 2008 |
| Docket Number | No. 26,453.,26,453. |
| Citation | 187 P.3d 679,2008 NMCA 066 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. William DEMONGEY, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Gary K. King, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Appellee.
John Bigelow, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
{1} Defendant appeals the district court's determination that he committed attempted second degree murder and assault on a peace officer with intent to commit a violent felony, and his subsequent commitment to the Las Vegas Medical Center (Las Vegas), pursuant to the New Mexico Mental Illness and Competency Act. See NMSA 1978, §§ 31-9-1 to -4 (1988, as amended through 1999). Defendant argues that (1) the district court's findings that he committed attempted second degree murder and assault with intent to commit a violent felony on a peace officer violated his right to be free from double jeopardy; (2) the evidence was insufficient to support the district court's findings; (3) his right to due process was violated by the length of time between his arraignment and the hearing to determine the sufficiency of the evidence against him (hereinafter "the evidentiary hearing"); and (4) the district court miscalculated his term of commitment. We conclude that Defendant's multiple convictions violate double jeopardy under his unit-of-prosecution argument, but not under his double-description argument. We also conclude that Defendant's term of commitment was miscalculated. We affirm on all remaining issues and we remand to the district court for recalculation of Defendant's term of commitment.
{2} On December 11, 2000, Defendant was arraigned on multiple charges of attempted second degree murder, multiple charges of assault on a peace officer with intent to commit a violent felony, reckless driving, resisting, evading or obstructing an officer, as well as numerous other charges, which are not the subject of this appeal. On May 27, 2004, the district court entered an order committing Defendant to Las Vegas pursuant to Section 31-9-1.2, to receive treatment to attain competency. The parties stipulated that Defendant was incompetent to proceed and that he was dangerous as defined in Section 31-9-1.2(D). The district court ordered Defendant committed for a period not to exceed nine months and ordered that a competency hearing be held on August 27, 2004. On July 6, 2004, new counsel entered his appearance on behalf of Defendant. On October 13, 2004, Defendant waived the ninety-day review hearing and requested that his commitment continue pursuant to the original commitment order.
{3} The evidentiary hearing was held on September 15, 2005. At the hearing, details of the incident were reconstructed through the testimony of police officers and witnesses. Officer Sean Casaus testified that on November 23, 2000, while employed with the New Mexico State Police, he tried to stop Defendant for running a red light and speeding on Alameda Boulevard in Albuquerque, New Mexico. Defendant did not stop and instead continued to speed through two more red lights and a stop sign with Officer Casaus in pursuit. Between San Pedro Drive and Louisiana Boulevard, still on Alameda, Officer Casaus saw what appeared to be a muzzle flash come from Defendant's vehicle and heard something hit his windshield. Officer Casaus called dispatch and reported that shots had been fired. He then gave Defendant's vehicle some space, but continued pursuing Defendant eastbound on Alameda. After passing through the intersection of Alameda and Louisiana, Officer Casaus observed at least two more muzzle flashes come through the back window of Defendant's vehicle toward the officer. Officer Casaus testified that there was "some time between" the muzzle flashes and that they did not occur in rapid succession, as would be expected with a semi-automatic weapon.
{4} Officer Casaus followed Defendant to a vacant field where Alameda ends at Barstow Street. Officer Casaus stopped his car about forty feet from where Defendant's vehicle was stopped and was now facing toward the officer's vehicle, and the officer saw Defendant exit his vehicle. Officer Casaus then got out and went around to the rear of the vehicle and then around to the passenger side. Defendant got back into his car and drove it straight toward the officer's vehicle. Still outside of his car, Officer Casaus saw Defendant manipulating something that appeared to be a rifle or a shotgun and point it out the window at him. Officer Casaus fired several rounds at Defendant's vehicle as it passed. The officer testified that Defendant's vehicle passed within five feet of him. He then followed Defendant westbound on Alameda, where Defendant's vehicle collided into another vehicle. Defendant fled the crash scene on foot and was later found sleeping in a dumpster.
{5} Pursuant to a search warrant, police later recovered a .303 caliber British Enfield bolt-action rifle, the muzzle of which was in the front passenger seat of Defendant's vehicle. The rifle magazine had five rounds in it, along with one in the chamber, and three spent casings from the rifle were recovered on the floor of the vehicle. Police also recovered an unloaded 12 gauge, sawed-off shotgun and a loaded starter pistol that had been altered to accept and fire .22 caliber long-rifle cartridges. Additionally, there were three bullet holes in the rear window of Defendant's vehicle that appeared to have been made by someone shooting from inside the vehicle. Defendant did not present any evidence.
{6} The district court concluded that Defendant committed numerous offenses by clear and convincing evidence, including four counts of attempted second degree murder (three during the high-speed chase based on the three gun shots and one at the dead end of Alameda and Barstow, when Defendant drove his vehicle directly toward the officer's vehicle) and four counts of assault on a peace officer with intent to commit a violent felony (again, three during the high-speed chase based on the three gun shots and one when Defendant drove his vehicle at the officer's vehicle). The district court ordered Defendant committed to Las Vegas pursuant to Section 31-9-1.5(D). Additional facts are set out in the analysis section of this opinion.
{7} Defendant argues that the district court's findings at the evidentiary hearing violated his constitutional right to be free from multiple punishments. "The Double Jeopardy Clause of the Fifth Amendment protects citizens against multiple punishments for the same offense." State v. Bernal, 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289. "Multiple punishment problems can arise from both `double-description' claims, in which a single act results in multiple charges under different criminal statutes, and `unit-of-prosecution' claims, in which an individual is convicted of multiple violations of the same criminal statute." Id. "Because the issue of whether there has been a double jeopardy violation is a constitutional one, our review is de novo." State v. Ford, 2007-NMCA-052, ¶ 7, 141 N.M. 512, 157 P.3d 77.
{8} Defendant raises both double-description and unit-of-prosecution challenges to the district court's findings at the evidentiary hearing. Defendant first argues that he was subject to multiple punishments because the same underlying conduct formed the basis for the district court's findings that he committed attempted second degree murder and assault on a peace officer with intent to commit a violent felony. Defendant also argues that the district court erroneously found that he committed three separate acts of each offense for each of the three shots fired during the high-speed chase during one continuous course of conduct. We address each argument in turn.
{9} The district court found that each of the shots Defendant fired at Officer Casaus was a separate event and was therefore separately punishable. Defendant argues that the three shots were fired during a continuous course of conduct and constitute one act. We review unit-of-prosecution cases using a two-part analysis. See Bernal, 2006-NMSC-050, ¶ 14. We first review the statutory language for guidance in determining the unit of prosecution. Id. If the statutory language is clear regarding the unit of prosecution, then our inquiry is complete, and we follow the statutory language. Id. "If the language is not clear, ... we [proceed] to the second step, in which we determine whether a defendant's acts are separated by sufficient `indicia of distinctness' to justify multiple punishments under the same statute." Id.; State v. Collins, 2007-NMCA-106, ¶ 19, 142 N.M. 419, 166 P.3d 480. "Finally, if we have not found a clear indication of legislative intent, we apply the `rule of lenity,' a presumption against imposing multiple punishments for acts that are not sufficiently distinct." State v. DeGraff, 2006-NMSC-011, ¶ 32, 139 N.M. 211, 131 P.3d 61.
{10} In this case, neither party argues that the unit of prosecution is clearly defined in the relevant criminal statutes. See In re Doe, 98 N.M. 540, 541, 650 P.2d 824, 825 (1982) (). We therefore proceed to the second step in the analysis and review whether Defendant's acts were separated by sufficient indicia of distinctness to allow for three convictions each of assault with intent to commit a violent felony upon a peace officer and attempted second degree murder. In making this determination, we look at a number of factors, including: "(1) temporal proximity of the acts; (2) location of the victim(s) during each act; (3) existence of an intervening event; (4) sequencing of acts; (5) defendant's intent as...
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... ... Defendant relies on relatively similar cases that have ruled that multiple punishments for violation of a single statute violated double jeopardy. See State v. Demongey, 2008-NMCA-066, ¶ 15, 144 N.M. 333, 187 P.3d 679 (holding that firing three shots separated by minutes and distance traveled was unitary conduct, where the shots were fired during one high-speed chase in an extreme attempt to escape from a pursuing officer), cert. granted, 2008-NMCERT-005, 144 ... ...
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