State v. Haddenham

• Decision Date: 19 April 1990
• Docket Number: Nos. 11334,11357,s. 11334
• Citation: 1990 NMCA 48,110 N.M. 149,793 P.2d 279
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Kim HADDENHAM, Defendant-Appellant. STATE of New Mexico, Plaintiff-Appellee, v. Ben BENTON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 279

793 P.2d 279

110 N.M. 149

STATE of New Mexico, Plaintiff-Appellee, v. Kim HADDENHAM, Defendant-Appellant.

STATE of New Mexico, Plaintiff-Appellee, v. Ben BENTON, Defendant-Appellant.

Nos. 11334, 11357.

Court of Appeals of New Mexico.

April 19, 1990.

Certiorari Denied May 22, May 23,

and May 30, 1990.

[110 NM 150] Hal Stratton, Atty. Gen., Patricia Gandert, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Sheila Lewis, Asst. Appellate Defender, Santa Fe, for defendant-appellant Kim Haddenham.

Jacquelyn Robins, Chief Public Defender, Jerry Todd Wertheim, Asst. Appellate Defender, Santa Fe, for defendant-appellant Ben Benton.

OPINION

DONNELLY, Judge.

These consolidated cases involve the common question of whether it is legally permissible for the state to present evidence of the same felony to prove an essential element of the crime of felon in possession of a firearm contrary to NMSA 1978, Section 30-7-16 (Repl.Pamp.1984), and to rely upon this same evidence for purposes of enhancing defendants' sentences under the habitual offender criminal statute, NMSA 1978, Section 31-18-17 (Repl.Pamp.1987).

Defendants were convicted in separate cases of the charge of felon in possession of a firearm contrary to Section 30-7-16. In each case, defendants were also sentenced as habitual offenders in accordance with Section 31-18-17.

In sentencing Haddenham, the court determined that he had been convicted of felonies on two prior occasions: offenses of conspiracy to commit robbery in Colorado on December 13, 1973, and the unlawful distribution of a controlled substance, to wit: methamphetamine; and the offense of conspiracy in Eddy County, New Mexico, on August 4, 1983. Based upon the court's finding that Haddenham had been convicted of felonies on two prior occasions, his sentence was enhanced by four years. See Sec. 31-18-17(C). The Colorado conspiracy conviction was the one used to prove Haddenham was a felon, an element of the crime of felon in possession of a firearm. See Sec. 30-7-16; SCRA 1986, 14-701.

In imposing the sentence in Benton's case, the court found that he had three prior convictions, aggravated assault, battery on a peace officer, and criminal sexual penetration, and his sentence was enhanced by eight years. See Sec. 31-18-17(D). Proof of Benton's conviction of criminal sexual penetration was also used to prove he was a felon in possession of a firearm.

Each defendant contends it was improper for the courts below to use the same felony both to prove an essential element of the felon in possession of a firearm charge and also to enhance his sentence. Although each defendant raises this issue in different ways and makes different arguments, we consolidated the cases on our own motion to answer the central issue concerning whether the state may properly enhance a defendant's sentence on the basis of the same felony that was also used to prove that the defendant was a felon in possession of a firearm.

In addition to the common issue raised in both cases, Benton alleges: (1) he was subject to an unlawful search and seizure; (2) there was tampering with the record of his preliminary hearing warranting a reversal of the conviction; and (3) he was denied effective assistance of counsel. Haddenham also alleges: (1) he received ineffective assistance of counsel; (2) that federal firearms laws preempt Section 30-7-16; (3) there was insufficient evidence to convict him; (4) the court should have instructed the jury in accordance with his definition of antique firearms; (5) the 1973 conviction was so remote in time as to preclude its use for enhancement of his sentence; and (6) that the errors in the case violated his rights to confront and cross-examine the witnesses against him and constitute cruel and unusual punishment. We address the common issue first and then address defendants' other claims seriatim. We hold it is not permissible on these facts for the state to make "double use" of the same felony.

DOUBLE USE OF PRIOR FELONY

Haddenham contends that use of the same felony to prove the principal charge of felon in possession of a firearm and also to enhance his punishment under the habitual offender criminal statute violates both the state and federal prohibitions against double jeopardy. Haddenham relies primarily on cases from other jurisdictions. Similarly, Benton raises issues of double jeopardy and argues that applying the general-specific rule of statutory construction to the relevant statutes indicates that it was not the legislative intent to allow use of the same felony to prove the principal charge of felon in possession of a firearm and also to enhance the punishment.

Benton raised the issue of double jeopardy both in the trial court and in his docketing statement; Haddenham has asserted this issue only on appeal. Since double jeopardy may be raised at any stage of a criminal proceeding, it may properly be raised for the first time on appeal. See NMSA 1978, Sec. 30-1-10 (Repl.Pamp.1984). In Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981), the Court said, "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended * * * to impose multiple punishments, imposition of such sentences does not violate the Constitution." (Footnote omitted.) See also State v. Ellenberger, 96 N.M. 287, 629 P.2d 1216 (1981). To the same effect, this court held that the double jeopardy argument made in State v. Keith, 102 N.M. 462, 463, 697 P.2d 145, 146 (Ct.App.1985), precluded the multiple use of the same facts to prove a predicate offense and enhance a sentence where there is an absence of any showing that the legislature intended to permit such double usage. We recently reaffirmed these principles in State v. Tsethlikai, 109 N.M. 371, 785 P.2d 282 (Ct.App.1989). For these reasons we do not separate each defendant's argument concerning this issue, but consider them jointly.

Section 30-7-16, as it read prior to the 1987 amendment, provided in pertinent part:

A. It is unlawful for a felon to receive, transport or possess any firearm in this state.

B. Any person violating the provisions of this section shall be guilty of a misdemeanor and shall be sentenced in accordance with the provisions of the Criminal Sentencing Act * * *.

C. * * * *

(1) "felon" means a person who has been convicted in the preceding ten years by a court of the United States or of any state or political subdivision thereof, to a sentence of death or one or more years imprisonment and has not been pardoned of the conviction by the appropriate authority[.] [Citations omitted.]

Section 30-7-16 was amended by 1987 N.M.Laws, ch. 202, Section 1, to increase the penalty for violation of the act from a misdemeanor to a fourth degree felony, and to broaden the offense to also make unlawful the possession of a destructive device by a felon.

The habitual offender statute, Section 31-18-17(B) and (C), directs that "[a]ny person convicted of a noncapital felony in this state whether within the Criminal Code or the Controlled Substances Act or not who has incurred [one or more] prior felony convictions which were parts of separate transactions or occurrences is a habitual offender and his basic sentence shall be increased" by a specific period of time, depending upon the number of the defendant's prior felony convictions.

When the legislature increased the penalty for the offense of felon in possession without changing the reference within the felon in possession statute to the Criminal Sentencing Act, it created a situation in which a single prior felony might be used twice, once to make conduct not otherwise criminal a felony and then to make the felon a habitual offender. Prior to 1987, the crime of felon in possession could be punished in accordance with the Criminal Sentencing Act without raising the question of whether the habitual offender criminal statute also applied. After 1987, the crime of felon in possession could not be committed without also becoming a felon with a prior felony. Examination of the two statutes fails to indicate any specific legislative intent to permit a "double use" of the same felony under these circumstances.

The general habitual offender criminal statute provides for enhancement of the sentence for any felony. The amount of enhancement depends on the number of prior felonies, but one is sufficient. On the facts of this case, both the felon in possession statute and the general habitual offender criminal statute provide for an enhanced sentence when a felon has been convicted of possession of a firearm. With respect to the felony that makes possession criminal, the felon in possession statute is specifically, rather than generally, applicable.

An analysis of the felon in possession statute, Section 30-7-16, and the provisions of the general habitual offender criminal statute, Section 31-18-17, indicates that the two statutes have a common purpose, namely, to deter criminal conduct by placing convicted felons on notice that they will be subjected to enhanced sentences for the commission of subsequent offenses. See State v. Linam, 93 N.M. 307, 600 P.2d 253, cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979); State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966); State v. Keith. The felon in possession statute provides for an enhanced punishment in order to keep firearms out of the hands of persons previously convicted and to deter recidivism. On the facts of these cases, where the state seeks to make "double use" of the same offense, we conclude that the felon in possession statute, Section 30-7-16, is a specific statutory offense proscribing the possession of firearms by a felon, which statute governs over the provisions of the general habitual offender statute, Section...