State v. House, 20,438.

• Decision Date: 04 January 2001
• Docket Number: No. 20,438.,20,438.
• Citation: 130 N.M. 418,2001 NMCA 11,25 P.3d 257
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Gordon HOUSE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

25 P.3d 257

130 N.M. 418

2001 NMCA 11

STATE of New Mexico, Plaintiff-Appellee, v. Gordon HOUSE, Defendant-Appellant.

No. 20,438.

Court of Appeals of New Mexico.

January 4, 2001.

Certiorari Denied March 8, 2001.

Patricia A. Madrid, Attorney General, Steven S Suttle, Assistant Attorney General, Albuquerque, NM, for Appellee.

William J. Friedman, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 26,771, March 8, 2001.

OPINION

ARMIJO, Judge.

{1} In this appeal, Gordon House (Defendant) appeals from the sentence imposed upon remand, arising from the incident of Christmas Eve 1992. Previously, our Supreme Court affirmed Defendant's convictions. See State v. House, 1999-NMSC-014, 127 N.M. 151, 978 P.2d 967. Pursuant to the State's concession before this Court, the matter was then remanded for reformation of the sentence. Defendant now challenges his resentencing. We affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

{2} On Christmas Eve 1992, Defendant drove his vehicle the wrong way onto Interstate 40 (I-40); that is, he entered the highway driving east in the west-bound lane. Other travelers, including a police officer, noted Defendant's vehicle traveling in this manner at a high rate of speed. Defendant collided with another vehicle, killing a mother and her three children, and leaving the father grievously injured.

{3} Officers on the scene concluded, in addition to his reckless driving, that Defendant had been drinking that evening, such that it impaired his ability to operate a motor vehicle. They arrested him, and he was subsequently tried on four counts of DWI-related vehicular homicide, four counts of reckless-driving-related vehicular homicide, one count of DWI-related grievous bodily injury with a motor vehicle, and one count of reckless-driving-related grievous bodily injury with a motor vehicle.

{4} The State charged the DWI-related and reckless-driving-related theories in the alternative. That is, after pleading each of the DWI-related counts, the State pled, "OR IN THE ALTERNATIVE: VEHICULAR HOMICIDE (RECKLESS DRIVING)" and "OR IN THE ALTERNATIVE: GREAT BODILY INJURY BY VEHICLE (RECKLESS [DRIVING])." Similarly, the jury was instructed on the theories as alternatives, the DWI-related charges being prioritized.

{5} The jury convicted Defendant on each of these counts, and the district court imposed a sentence of three years on one count of grievous bodily injury with a motor vehicle and three years each on eight counts of vehicular homicide¹, four based upon a driving-while-intoxicated (DWI) theory, and four upon a reckless-driving theory. While retaining the redundant convictions-in violation of Defendant's protections against double jeopardy, see State v. Landgraf, 1996-NMCA-024, ¶ 38, 121 N.M. 445, 913 P.2d 252—the district court imposed concurrent sentences on the alternate vehicular homicide theories. Finally, in light of Defendant's prior misdemeanor DWI conviction, the district court imposed a ten-year enhancement in accordance with NMSA 1978, § 66-8-101(D) (1991); that is, one two-year enhancement for each DWI-related vehicular homicide conviction. Defendant thus received a total sentence of twenty-five years.

{6} As noted above, Defendant previously sought reversal of his convictions and sentence in New Mexico's appellate courts alleging seven claims of error: (1) error in the transfer of venue; (2) error in the make-up of the jury; (3) error in the district court's denial of his motion to dismiss after two mistrials; (4) error in using his prior DWI conviction to enhance his sentence; (5) error upon the retention of and sentencing upon alternative counts for each homicide and injury; (6) error on various matters within the discretion of the trial court; and (7) error regarding the role of the Navajo Nation in his trial. Notably, the State conceded error regarding entry of the eight homicide convictions and sentences during proceedings before this Court and, in response, Defendant moved "this [C]ourt to vacate the four NMSA 1978[,] § [ ] 66-8-101(a) (reckless driving) convictions as constitutionally infirm. Additionally[,][D]efendant's NMSA 1978[,] § []66-8-101(b) (great bodily harm/reckless driving) conviction is constitutionally infirm as well and must be vacated." This Court did not grant the motion. Our Supreme Court subsequently affirmed Defendant's convictions, see House, 1999-NMSC-014, ¶ 113, 127 N.M. 151, 978 P.2d 967, and remanded the matter for reformation of the sentence.

{7} On remand, the district court afforded the precise relief Defendant sought previously before this tribunal; that is, it vacated each of Defendant's convictions which were based upon a reckless-driving theory. While curing the double jeopardy violation, this reformation left intact Defendant's sentence of twenty-five years. It is this aspect of Defendant's re-sentencing that is now before this Court. He again appeals. In turn, the State argues that the doctrine of law of the case forecloses Defendant's appeal on this issue.

DISCUSSION

{8} Defendant's arguments range widely; however, broadly read, he states five arguments: (1) our vehicular homicide statute is "irreducibly ambiguous" as to which theory, DWI-related or reckless-driving-related vehicular homicide, takes priority in the event of convictions under both theories; (2) our statute is ambiguous as to the appropriate unit of prosecution; (3) the statute's enhancement provision is unconstitutionally ambiguous; (4) the enhancement provision violates equal protection and due process; and (5) the district court violated his due process rights in denying his motion to recuse the trial judge. He also invokes, albeit without substantive argument or application, the doctrine of constitutional doubt. For the reasons discussed below, we affirm Defendant's sentence in all regards.

1. This Court has jurisdiction over the present appeal.

{9} We first address the State's argument that this Court is without jurisdiction to hear the present appeal. We remain unpersuaded by this argument.

{10} First, the State argues the doctrine of law of the case forecloses our ability to hear any argument not made on Defendant's previous appeal. Application of this doctrine is a matter of discretion and is not an inflexible rule of jurisdiction. See State v. Breit, 1996-NMSC-067, ¶ 12, 122 N.M. 655, 930 P.2d 792. Also, the doctrine traditionally applies only where a matter has been specifically ruled upon in a prior and final appellate proceeding. See id. But cf. DiMatteo v. County of Dona Ana, 109 N.M. 374, 379, 785 P.2d 285, 290 (Ct.App.1989) (recognizing, in civil context, that law of the case can prevent party from raising issues not argued in prior related appeal). Neither this Court, nor our Supreme Court, has passed upon any of the issues specifically presented in this appeal, and while it would have been preferable for Defendant to have brought these claims in his prior appeal, the doctrine of law of the case does not preclude our review.

{11} Second, upon issuance of our Supreme Court's mandate, remanding the matter to the district court in April 1999, Defendant timely filed a Rule 5-801 NMRA 2000 motion for relief from what he claims is an illegal sentence. With one exception, each of Defendant's claims now presented fall within the jurisdictional scope of this rule, and this Court is therefore vested with jurisdiction to review the remand proceedings. See State v. Neely, 117 N.M. 707, 708-09, 876 P.2d 222, 223-24 (1994) (concluding denial of a Rule 5-801 motion is a final, appealable order).

{12} Regarding the one exception-that is, Defendant's claim that the district court erred in denying his motion to recuse-that motion was made on remand and Defendant's appeal therefrom is timely and appropriate. See State ex rel. Village of Los Ranchos de Albuquerque v. City of Albuquerque, 119 N.M. 169, 173, 889 P.2d 204, 208 (Ct.App. 1993).

{13} For these reasons, we are not persuaded by the State's argument that this Court cannot hear Defendant's appeal and turn to the merits of each claim presented.

2. Section 66-8-101(A) manifests a hierarchy of vehicular homicide offenses.

{14} In Landgraf, 1996-NMCA-024, ¶¶ 32, 38, 121 N.M. 445, 913 P.2d 252, this Court recognized that Section 66-8-101 provides the State alternate means for obtaining a conviction; however, it held that if the State obtained convictions on all theories presented to the jury, a single death could only constitute a single homicide. Accord State v. Pierce, 110 N.M. 76, 86-87, 792 P.2d 408, 418-19 (1990) (recognizing propriety of charging in the alternative, but requiring merger of redundant convictions). Because the issue was not raised in Landgraf, this Court expressed no opinion as to which theory—DWI or reckless driving—would take priority. Defendant now raises that precise issue. More specifically, Defendant argues that the statute demonstrates no clear legislative intent that one theory take priority over another and thus—positing that Section 66-8-101 is therefore "irreducibly ambiguous"—the rule of lenity mandates that the lesser offense of reckless-driving-related vehicular homicide be retained in lieu of the DWI—related convictions. We reject Defendant's argument. {15} Section 66-8-101 provides alternative theories for proving homicide by unlawful operation of a motor vehicle: (a) driving while under the influence of alcohol or drugs, or (b) reckless driving. See § 66-8-101(C). No matter the theory by which the State chooses to prosecute, the crime is a third-degree felony. See id. By this light alone, it is unclear whether the Legislature intended that one be viewed as a greater public concern and therefore a greater offense.

{16} However, Section 66-8-101(D) provides:

Any person who commits homicide by vehicle or great bodily injury by vehicle while under the influence of intoxicating liquor or while under the influence of any drug, ... who has

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