State v. Dominguez, No. 28,119.

• Docket Nº: No. 28,119.
• Citation: 2005 NMSC 1, 106 P.3d 563, 137 N.M. 1
• Case Date: January 27, 2005
• Court: Supreme Court of New Mexico

106 P.3d 563
137 N.M. 1
2005 NMSC 1

STATE of New Mexico, Plaintiff-Respondent,
v.
Rodrigo DOMINGUEZ, Defendant-Petitioner

No. 28,119.

Supreme Court of New Mexico.

January 27, 2005.

106 P.3d 565

John Bigelow, Chief Public Defender, Trace L. Rabern, Assistant Appellate Defender, Santa Fe, NM for Petitioner

Patricia A. Madrid, Attorney General, James O. Bell, Assistant Attorney General, Santa Fe, NM for Respondent.

OPINION

SERNA, Justice.

{1} Following a jury trial, Defendant Rodrigo Dominguez was convicted of voluntary manslaughter, contrary to NMSA 1978, § 30-2-3(A) (1994), aggravated battery, contrary to NMSA 1978, § 30-3-5 (1969), two counts of shooting at or from a motor vehicle, contrary to NMSA 1978, § 30-3-8(B) (1993), and conspiracy to commit tampering with evidence, contrary to NMSA 1978, §§ 30-22-5 (1963, prior to 2003 amendment), -28-2 (1979).¹

{2} The Court of Appeals affirmed Defendant's convictions in a unanimous memorandum opinion. This Court granted Defendant's petition for writ of certiorari to the Court of Appeals on four issues: (1) whether his convictions of voluntary manslaughter and shooting at or from a motor vehicle violate double jeopardy; (2) whether his convictions of aggravated battery and shooting at or from a motor vehicle violate double jeopardy; (3) whether, in the alternative to the first two arguments, the two convictions of shooting at or from a motor vehicle violate double jeopardy; and (4) whether the Court of Appeals erred in refusing to consider Defendant's argument of an erroneous jury instruction. Defendant has waived the fourth issue raised in his petition. In his brief in chief, Defendant raises a new issue not presented in his petition to this Court or in his arguments to the Court of Appeals: whether giving jury instructions on two of the three theories of first degree murder contained in NMSA 1978, § 30-2-1(A) (1994), without phrasing them in the alternative, constitutes overcharging. See State v. Reyes, 2002-NMSC-024, ¶¶ 10-17, 132 N.M. 576, 52 P.3d 948 (rejecting a claim that "convictions under [two] theories of first degree murder resulted from ambiguous jury instructions because the jury was not told that it could not convict

106 P.3d 566

[the defendant] for both deliberate murder and felony murder"); see also State v. Salazar, 1997-NMSC-044, ¶¶ 41-42, 123 N.M. 778, 945 P.2d 996 (stating that first degree murder is a single crime, whether supported by a single theory or by multiple theories, and upholding a general verdict of first degree murder under two alternative theories on the basis that there is "no requirement that the jurors . . . unanimously agree on one of the alternative theories presented" and "[u]nanimity was only required with regard to the overall charge of first degree murder")

{3} We reject Defendant's first two arguments because, as this Court has squarely held, the Legislature intended to provide for multiple punishments for these crimes. We also reject Defendant's third point of error because the conduct supporting the two convictions of shooting at or from a vehicle is not unitary. We do not consider the issue raised for the first time in Defendant's brief in chief. See Rule 12-502(C)(2) NMRA 2005 ("[O]nly the questions set forth in the petition will be considered by the [Supreme] Court."). We affirm Defendant's convictions.

I. Facts

{4} Defendant's convictions stemmed from an incident in which Defendant and several of his friends went to a convenience store late one night to fight another group of individuals. Each member of Defendant's group was armed with a gun that was supplied by Defendant, while none of the members of the other group had a gun. Both groups arrived in cars, and Defendant was the driver in his group's car. After one member of the other group exited their vehicle with a baseball bat, Defendant's group opened fire. Charles McClaugherty was in Defendant's group. See generally State v. McClaugherty, 2003-NMSC-006, 133 N.M. 459, 64 P.3d 486. There was evidence at Defendant's trial that McClaugherty exited the vehicle Defendant was driving, fired numerous times into the other car, and killed the driver, Ricky Solisz. Another shooter hit and wounded the man who exited the other group's car, Vince Martinez. Three witnesses, one from Solisz's group and two from Defendant's group who were in a different car than the one Defendant was driving, testified to seeing numerous flashes of gunfire from the driver's side of Defendant's car, which would have been where Defendant was sitting. Experts linked two separate Glock .40 handguns to the shootings, and the evidence was consistent with each victim being shot with a different Glock .40 handgun. A member of Defendant's group testified that when Defendant and McClaugherty returned to McClaugherty's apartment after the shooting each was carrying a handgun consistent with a Glock .40. This witness testified that Defendant and McClaugherty bragged about the shooting to their friends immediately after the incident.

II. Voluntary Manslaughter and Shooting at or from a Motor Vehicle

{5} Defendant contends that his convictions of voluntary manslaughter and shooting at or from a motor vehicle in relation to the death of Solisz violates the protection against double jeopardy. The Double Jeopardy Clause in the United States Constitution, applicable in New Mexico through the Fourteenth Amendment, provides that a defendant shall not "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This provision protects against multiple prosecutions for the same offense and against multiple punishments for the same offense arising out of a single prosecution. However, for multiple punishments such as Defendant's convictions of voluntary manslaughter and shooting at a motor vehicle, the Double Jeopardy Clause only prevents a court from imposing greater punishment than the Legislature intended. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991). "[T]he sole limitation on multiple punishments is legislative intent." Id. at 13, 810 P.2d at 1233. We have adopted a two-part test for determining whether multiple punishments violate the constitutional protection against double jeopardy. Id. We ask, first, "whether the conduct underlying the offense is unitary" and, second, "whether the [L]egislature intended to create separately punishable offenses." Id.

106 P.3d 567

{6} In this case, the parties do not dispute that the convictions of voluntary manslaughter and shooting at or from a motor vehicle are based on the unitary conduct of Defendant aiding and abetting McClaugherty's shooting of Solisz. Our analysis therefore focuses on legislative intent. "If the [L]egislature expressly provides for multiple punishments, the double jeopardy inquiry must cease. Absent a clear expression of legislative intent, a court first must apply the [test established in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)] to the elements of each statute." Swafford, 112 N.M. at 14, 810 P.2d at 1234 (citation omitted). This elements inquiry asks "whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304, 52 S.Ct. 180

The rationale underlying the Blockburger test is that if each statute requires an element of proof not required by the other, it may be inferred that the [L]egislature intended to authorize separate application of each statute. Conversely, if proving violation of one statute always proves a violation of another (one statute is a lesser included offense of another, i.e., it shares all of its elements with another), then it would appear the [L]egislature was creating alternative bases for prosecution, but only a single offense.

Swafford, 112 N.M. at 9, 810 P.2d at 1229. Based on this rationale, "[i]f that test establishes that one statute is subsumed within the other, the inquiry is over and the statutes are the same for double jeopardy purposes — punishment cannot be had for both." Id. at 14, 810 P.2d at 1234. "Conversely, if the elements of the statutes are not subsumed one within the other, then the Blockburger test raises only a presumption that the statutes punish distinct offenses. That presumption, however, is not conclusive and it may be overcome by other indicia of legislative intent." Id. These other indicia include "the social evils sought to be addressed by each offense" and "the language, structure, and legislative history" of the two provisions. Id. at 9, 810 P.2d at 1229.

{7} We have previously applied this double jeopardy analysis in a context closely resembling the present case. In State v. Gonzales, 113 N.M. 221, 223-25, 824 P.2d 1023, 1025-27 (1992), the defendant was convicted of first degree murder and shooting into an occupied vehicle based on the same conduct and argued that these convictions violated double jeopardy. We noted that "[t]he question of whether convictions under several statutes constitute the same offense for double jeopardy purposes is a matter of determining the legislative intent." Id. at 224, 824 P.2d at 1026. Applying Blockburger, we concluded that each crime contained an element that the other did not, thereby raising a presumption that the Legislature intended to create separately punishable offenses. Id. at 225, 824 P.2d at 1027.

Clearly, each statute in question in this appeal requires proof of an element that the other statute does not require. The murder statute requires proof of the unlawful killing of a human being which need not be accomplished by shooting at an occupied motor vehicle. The shooting at an occupied motor vehicle statute requires proof of discharging a firearm at an occupied vehicle but does not require the killing of a human being. Thus, the greater offense — murder — does not subsume the lesser offense — shooting into an occupied vehicle — because each requires proof of an element absent in the other.

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