State v. Fuschini

• Decision Date: 25 April 2017
• Docket Number: NO. A-1-CA-33731,A-1-CA-33731
• Citation: 406 P.3d 965
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Annette C. FUSCHINI, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

406 P.3d 965

STATE of New Mexico, Plaintiff-Appellee,

v.Annette C. FUSCHINI, Defendant-Appellant.

NO. A-1-CA-33731

Court of Appeals of New Mexico.

Filing Date: April 25, 2017

Certiorari Granted, August 7, 2017, No. S-1-SC-36489

Hector H. Balderas, Attorney General, Santa Fe, NM, M. Victoria Wilson, Assistant Attorney General, Albuquerque, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Nina Lalevic, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

JONATHAN B. SUTIN, Judge

{1} Defendant Annette C. Fuschini was convicted of involuntary manslaughter and aggravated driving while intoxicated (DWI) after she ran over her fiancé with a vehicle, which resulted in his death. On appeal, Defendant argues that her convictions violate the double jeopardy clause of the Fifth Amendment of the United States Constitution. We hold that double jeopardy was not violated and thus affirm Defendant's convictions.

BACKGROUND

{2} Defendant and her fiancé, Carlos Nevarez, were celebrating his birthday at their friends' house. Defendant and Nevarez had been drinking at their home, and they continued to drink at the celebration. When they left their friends' house, Defendant was driving their Silverado truck, and Nevarez was in the passenger seat.

{3} As they were driving home, Defendant and Nevarez were having an argument, Defendant suddenly stopped the truck on the side of the road, and Nevarez got out. Nevarez yelled at Defendant to leave and walked away onto the curb. Defendant then drove the truck over the curb and hit Nevarez, pulling him underneath the wheels. Nevarez died from his injuries.

{4} A grand jury indictment charged Defendant with the deliberate and intentional killing of Nevarez in violation of NMSA 1978, Section 30-2-1(A)(1) (1994), and aggravated DWI for causing bodily injury to Nevarez in violation of NMSA 1978, Section 66-8-102 (2010, amended 2016). At trial, Defendant requested and the district court submitted instructions on second degree murder and involuntary manslaughter as lesser included offenses to the first degree murder charge. The jury found Defendant guilty of involuntary manslaughter and aggravated DWI.

{5} Prior to sentencing, Defendant submitted a sentencing memorandum to the district court opposing the State's request to impose consecutive sentences. Defendant asserted that, under the facts and instructions given to the jury, imposing a sentence for both convictions would result in multiple punishments for the same offense in violation of the Fifth Amendment. In support of her argument, Defendant referred the district court to State v. Montoya, 2013-NMSC-020, 306 P.3d 426 ; State v. Swick, 2012-NMSC-018, 279 P.3d 747 ; and Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223. The State responded that in its view there was no double jeopardy prohibition to imposing a sentence for each conviction to be served consecutively. The district court agreed. Defendant appeals.

DISCUSSION

{6} Defendant's sole argument on appeal is that she has been convicted and sentenced in violation of her right to be free from double jeopardy under the Fifth Amendment to the United States Constitution.

Double jeopardy challenges involve constitutional questions of law, which we review de novo. State v. Melendrez, 2014-NMCA-062, ¶ 5, 326 P.3d 1126. The prohibition against double jeopardy "functions in part to protect a criminal defendant against multiple punishments for the same offense." Swick, 2012-NMSC-018, ¶ 10, 279 P.3d 747 (internal quotation marks and citation omitted). Double jeopardy multiple-punishment cases are divided into two classifications: (1) multiple convictions under a single statute are "unit of prosecution" cases, and (2) multiple convictions under separate statutes resulting from the same conduct are "double description" cases. Id. This is a double description case because Defendant argues that the same conduct resulted in two convictions under separate statutes.

{7} In analyzing a double description multiple-punishment claim, we first determine whether the underlying conduct for the offenses is unitary. Swafford, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223. The parties do not dispute that the conduct in this case, Defendant running over and killing Nevarez, was unitary. When the conduct is unitary, we then review "the statutes at issue to determine whether the [L]egislature intended to create separately punishable offenses." Id. ; see Swick, 2012-NMSC-018, ¶ 20, 279 P.3d 747 (noting that because the prosecution did not challenge the defendant's assertion that the conduct was unitary, the Court proceeded to determine whether the Legislature intended multiple punishments for that conduct). Multiple punishments for unitary conduct are constitutionally prohibited when the Legislature did not intend to create separately punishable offenses. See Swick, 2012-NMSC-018, ¶¶ 24, 27, 279 P.3d 747 (concluding that, under the prosecution's theory of the case, the Legislature did not intend to create separately punishable offenses and punishment could not be had for both convictions without violating double jeopardy).

{8} We begin by determining whether there is an explicit authorization for multiple punishments. See State v. Gutierrez, 2011-NMSC-024, ¶ 50, 150 N.M. 232, 258 P.3d 1024 ("Where the [L]egislature has explicitly authorized multiple punishment the judicial inquiry is at an end, and multiple punishment is authorized and proper." (alterations, internal quotation marks, and citation omitted)). Here, neither party argues and we fail to find an express legislative statement that multiple punishments may be imposed for both involuntary manslaughter and aggravated DWI that results in the death of one victim. In the absence of an express statement of legislative intent, we apply "the rule of statutory construction from Blockburger v. United States, 284 U.S. 299 . (1932), to ensure that each provision requires proof of a fact that the other does not. When applying Blockburger to statutes that are vague and unspecific or written with many alternatives, we look to the charging documents and jury instructions to identify the specific criminal causes of action for which the defendant was convicted." State v. Ramirez, 2016-NMCA-072, ¶ 18, 387 P.3d 266 (citation omitted).

{9} "If that [inquiry] 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." Swafford, 1991-NMSC-043, ¶ 30, 112 N.M. 3, 810 P.2d 1223. "If one statute requires proof of a fact that the other does not, then the Legislature is presumed to have intended a separate punishment for each statute without offending the principles of double jeopardy. That presumption, however, is not conclusive and it may be overcome by other indicia of legislative intent." State v. Silvas, 2015-NMSC-006, ¶¶ 12-13, 343 P.3d 616 (internal quotation marks and citations omitted). In analyzing other indicia of legislative intent, we look to " ‘the language, history, and subject of the statutes, and we must identify the particular evil sought to be addressed by each offense.’ " Id.¶ 13 (quoting Montoya, 2013-NMSC-020, ¶ 32, 306 P.3d 426 ). When these tools are used, if doubt still remains regarding legislative intent, the ambiguity must be resolved in favor of a defendant under the rule of lenity. See Montoya, 2013-NMSC-020, ¶ 51, 306 P.3d 426 (citing Swick, 2012-NMSC-018, ¶ 30, 279 P.3d 747 ).

{10} In this case, the parties focused on the jury instructions in their modified Blockburger analyses. The jury instruction in this case for involuntary manslaughter stated the following elements: Defendant ran over Nevarez with a vehicle, she should have known of the danger involved in her actions, she acted with a willful disregard for the safety of others, and her act caused the death of Nevarez. The jury instruction in this case for aggravated DWI stated the following elements: when operating a motor vehicle, Defendant "was under the influence of intoxicating liquor, that is, as a result of drinking such liquor ... [D]efendant was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the person and the public"; and "[D]efendant caused the death of ... Nevarez[.]"

{11} On appeal, Defendant concedes that proof of each crime under the jury instructions required something different. Involuntary manslaughter required a finding that Defendant willfully disregarded the safety of others, while aggravated DWI required a finding that she was intoxicated to the point where she could not safely handle the vehicle she was driving. Defendant, therefore, concedes that the modified Blockburger analysis favors the State. She attempts to overcome the presumption that the Legislature intended multiple punishments by relying on "other indicia of legislative intent" to support her argument that her convictions violate double jeopardy. Without looking to the language, history, or subject of the statutes and relying on State v. Santillanes, 2001-NMSC-018, ¶ 5, 130 N.M. 464, 27 P.3d 456, for the proposition that "[i]t is the death of another that the Legislature intended to punish, not the manner in which it was accomplished[,]" she argues that the Legislature did not intend that she be punished for aggravated DWI and involuntary manslaughter because the result is that she is being punished twice for causing one death.

{12} We are not convinced that Defendant's "one death" rationale shows an indicia of legislative intent sufficient to overcome the presumption that the Legislature intended multiple punishments in this case. While we agree that, in general, a defendant cannot be convicted under multiple homicide statutes for causing a single death, death is not a factor in this case. Aggravated DWI is not a homicide statute. See § 66-8-102(D)(2) (establishing...