State v. Janet
| Decision Date | 10 May 2021 |
| Docket Number | No. A-1-CA-36960,A-1-CA-36960 |
| Parties | STATE OF NEW MEXICO, Plaintiff-Appellee, v. JENNIFER JANET, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Hector H. Balderas, Attorney General
Benjamin Lammons, Assistant Attorney General
for Appellee
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
{1} Defendant Jennifer Janet appeals her conviction for aggravated battery (deadly weapon), contrary to NMSA 1978 Section 30-3-5(C) (1969). On appeal, Defendant argues that (1) the district court erred in allowing the State to dismiss Defendant's underlying charge of attempted second-degree murder—rather than the aggravated battery (deadly weapon) charge—in order to cure a double jeopardy violation, and (2) Defendant was denied a fair trial based on erroneous evidentiary rulings by the district court. For the reasons set forth below, we affirm.
{2} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history of this case, we set forth here only a brief overview of the relevant historical facts of this case. We reserve discussion of specific facts where necessary to our analysis.
{3} Defendant was arrested on October 5, 2015, following a violent altercation with Juan Jaramillo on September 16, 2015, during which Defendant stabbed Jaramillo in the neck, back, and leg. Defendant was indicted on charges of attempted first-degree murder, aggravated battery (deadly weapon)—or, in the alternative, aggravated battery (great bodily harm)—tampering with evidence, and unlawful taking of a motor vehicle. A jury found Defendant guilty of attempted second-degree murder, as a lesser offense of her attempted first-degree murder charge, and aggravated battery (deadly weapon). She was acquitted of all other charges.
{4} Following her trial, Defendant filed a motion to dismiss the underlying aggravated battery (deadly weapon)1 charge upon which the jury found her guilty, claiming that her convictions combined to violate her right to be free from double jeopardy. Defendant's motion specifically asserted that the offense of aggravated battery was subsumed within the offense of attempted second-degree murder, and, accordingly, Defendant's underlying aggravated battery charge should be dismissed. The district court held a hearing on Defendant's motion (the October 2017 hearing) during which the State acknowledged that aggravated battery and attempted second-degree murder "merged" under the facts of this case to violate principles of double jeopardy, but requested the district court dismiss the attempted second-degree murder charge, contrary to Defendant's motion. The district court permitted the State to dismiss the attempted second-degree murder charge and sentenced Defendant to a total of seven years, comprised of the three-year sentence for the aggravated battery conviction and an additional four years enhancement because Defendant qualifies as a habitual offender. This appeal followed.
{5} Defendant argues the district court erred in permitting the State to dismiss Defendant's attempted second-degree murder charge, claiming the aggravated battery charge should have been dismissed instead because it was subsumed within the attempted murder charge. Defendant further contends that it was within the district court's discretion—and not the State's right—to determine which charge to dismiss. The State concedes on appeal, as it did in district court, that Defendant's attempted second-degree murder and aggravated battery convictions violate double jeopardy. Therefore, we are not asked to analyze whether a double jeopardy violation occurred, but ratherthe relief owed to Defendant in light of the double jeopardy violation acknowledged below. We review this issue de novo, applying principles of double jeopardy as applicable to our inquiry. See State v. Santillanes, 2001-NMSC-018, ¶ 9, 130 N.M. 464, 27 P.3d 456 ().
{6} Defendant contends that her aggravated battery charge should have been dismissed because it was subsumed within attempted second-degree murder. In State v. Swick, our Supreme Court held that "the Legislature did not intend multiple punishments for attempted [first-degree] murder and aggravated battery arising from the same conduct because the latter is subsumed by the former." 2012-NMSC-018, ¶ 19, 279 P.3d 747. In vacating the defendant's conviction for aggravated battery, the Swick Court stated unambiguously that "the aggravated battery elements were subsumed within the attempted [first-degree] murder elements." Id. ¶¶ 27, 31. Here, as in Swick, the State offered no alternative acts that could have been the basis for Defendant's attempted second-degree murder charge other than those which already constituted the basis for her aggravated battery charge. We therefore conclude that Defendant's aggravated battery charge was subsumed within her attempted second-degree murder charge. Contrary to Defendant's argument on appeal, however, our conclusion in this regard does not resolve whether the correct charge was dismissed. Rather, while Defendant rightly asserts that aggravated battery was subsumed within attempted second-degree murder, Defendant incorrectly contends that such subsumption requires dismissal of the aggravated battery charge.
{7} Our double jeopardy case law is clear that when a defendant's convictions violate double jeopardy principles by imposing impermissible multiple punishments for unitary conduct, we vacate the conviction that carries the lesser punishment, regardless of whether the nature of the double jeopardy violation involves subsumption. See Santillanes, 2001-NMSC-018, ¶ 28 (); see also Swick, 2012-NMSC-018, ¶¶ 27, 29, 31 ( the defendant's aggravated battery conviction because it carried a shorter sentence than attempted first-degree murder and confirming that where a double description double jeopardy violation occurs because one conviction is subsumed within another, we "vacate the convictions that carry the lesser punishment"). Indeed, the Swick Court did not vacate the defendant's aggravated battery charged because it was subsumed, but rather because the aggravated battery charge carried the lesser punishment of a three-year sentence as compared to the nine-year sentence carried by attempted first-degree murder. Id. ¶ 29. In contrast, Defendant's charges here each carry identical three-year sentences. See NMSA 1978, § 30-2-1(B) (1994) (); see also NMSA 1978, § 30-28-1(B) (1963) (); NMSA 1978, § 30-3-5(C) (1969) (); NMSA 1978, § 31-18-15(A)(11) (2019) ().
{8} There is no clear rule dictating which of Defendant's underlying convictions should be vacated. Indeed, our appellate courts have been silent on the issue of how we should determine which charge to dismiss in light of an undisputed double jeopardy violation resulting in identical sentences. See State v. Porter, 2020-NMSC-020, ¶ 42, 476 P.3d 1201 (); see also State v. Mercer, 2005-NMCA-023, ¶ 29, 137 N.M. 36, 106 P.3d 1283 (). While Defendant's arguments present an unresolved question, this Court operates pursuant to a "presumption of correctness" in favor of the district court's rulings, and it is the "[d]efendant's burden on appeal to demonstrate any claimed error below." State v. Aragon, 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (internal quotation marks and citation omitted). Here, Defendant has not met her burden of demonstrating that the district court erred in accepting the State's dismissal of the attempted second-degree murder charge rather than that of aggravated battery. We explain.
{9} Defendant contends that it was the district court that "proposed that the State dismiss the attempted second[-]degree murder because the State wanted to limit [Defendant's] ability to accrue 'good time' pursuant to the Earned Meritorious Deductions Act (EMDA)[,]" which designates aggravated battery as a "serious violent offense," a designation which would prevent Defendant from earning meritorious deductions for her time served on that conviction. See NMSA 1978, § 33-2-34(L)(4)(c) (2015) (); see also § 33-2-34(F)...
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