State v. Jimenez

• Decision Date: 08 November 2006
• Docket Number: No. 25,056.,25,056.
• Citation: 151 P.3d 67,2007 NMCA 005
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Jesus Fraire JIMENEZ, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

151 P.3d 67

2007 NMCA 005

STATE of New Mexico, Plaintiff-Appellant, v. Jesus Fraire JIMENEZ, Defendant-Appellee.

No. 25,056.

Court of Appeals of New Mexico.

November 8, 2006.

Certiorari Granted, No. 30,140, January 2, 2007.

Patricia A. Madrid, Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellant.

John Bigelow, Chief Public Defender, Susan Roth, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

CASTILLO, Judge.

{1} The State appeals from the trial court's order dismissing Defendant's pending second-degree murder charge. The basic question in this case is whether Defendant can be retried for second-degree murder in connection with one killing when the jury signed two verdict forms: one acquitting Defendant of second-degree murder and the other finding him guilty of second-degree murder. The State argues that double jeopardy does not apply to a valid conviction of second-degree murder and that the trial court therefore erred in dismissing the case based on double jeopardy. Defendant contends that the acquittal verdict governs and that he cannot be retried for the same offense. Based on the jury instructions and verdict forms in this case, the jury rejected one theory of second-degree murder but found Defendant guilt on the other theory. As to the theory on which the jury found guilt, Defendant can be retried. Accordingly, we reverse.

I. BACKGROUND

{2} After fighting with two men, Defendant armed himself with a rifle. Then, together with two codefendants, Defendant went to the home of Cecilia Gonzales, the mother of the two men with whom he had been fighting. Gonzales lived with her sister Maria Martinez. Defendant and Juan Meraz, one of the two codefendants, entered the mother's residence. Although Defendant denies making the statement, and the dissent does not mention it, Martinez testified that Defendant told Meraz, "Shoot them. Shoot them. Kill them[.]" Meraz shot and killed Gonzales as she stood in the kitchen. Defendant then left the scene, without assisting Gonzales or calling the police, to continue "partying" at his uncle's home.

{3} The grand jury indicted Defendant on seven criminal counts stemming from this incident. Count 1 of the indictment charged Defendant with first-degree murder, willful and deliberate killing, or, in the alternative, first-degree murder, felony murder. The willful and deliberate murder charge stated that Defendant did kill Gonzales with the deliberate intention to take away her life. The felony murder charge stated that Defendant did intentionally cause the death of Gonzales during the commission or attempted commission of aggravated burglary, a felony offense, under circumstances or in a manner dangerous to human life and that Defendant intended to kill or knew that his acts created a strong probability of death or great bodily harm.

{4} At trial, the jury was instructed on the elements of two theories of first-degree murder: first-degree willful and deliberate murder and felony murder. The jury was also instructed on what can be perceived as two theories of second-degree murder. The jury was given a step-down instruction on second-degree murder as an included offense of first-degree murder by a deliberate killing. See UJI 14-250 NMRA. In addition, the jury was given a separate step-down second-degree murder instruction based on felony murder. Both second-degree murder instructions, however, required the jury to find that (1) Defendant killed the victim and (2) Defendant "knew that his acts created a strong probability of death or great bodily harm." The verdict forms followed the sequence of the jury instructions. There were separate verdict forms for each theory of first-degree murder and its corresponding lesser offense of second-degree murder. Defense counsel later characterized the instructions as "linear," meaning that the jury was instructed on deliberate murder and its included offenses and then on felony murder and its included offenses. According to the State, defense counsel would have preferred structuring the jury instructions based on the "Y" approach, in which the jury would first be instructed on both theories of first-degree murder and then would be given the step-down to second-degree murder if the jury could not reach a verdict on first-degree murder.

{5} The jury reached unanimous verdicts on all counts. The trial court read the verdicts into the record and then asked the attorneys if they wished to poll the jury; both parties stated that they did not want to poll the jury. The attorneys neither questioned the verdicts nor asked that the verdicts be clarified.

{6} The jury acquitted Defendant on first-degree murder by willful and deliberate killing, on second-degree murder "as charged as an included offense of first[-]degree murder by a deliberate killing" (second-degree deliberate intent murder), and on felony murder. The jury found Defendant guilty of second-degree murder "as an included offense of felony murder," as charged in the alternative to Count 1 (second-degree felony murder).

{7} Defendant appealed his conviction to this Court and raised nine issues in his docketing statement, none of which related to the two second-degree murder step-down instructions or verdict forms. This Court issued a memorandum opinion reversing and remanding the second-degree murder conviction on the ground that it was reversible error for the trial court to refuse to give Defendant's proposed lesser included instruction on involuntary manslaughter.

{8} After remand, the parties began to prepare for retrial. Defendant then filed a motion claiming that the State's prosecuting Defendant on the second-degree murder charge would violate his right to be free from double jeopardy because he had been acquitted of second-degree murder in the first trial. The State responded by arguing that the jury had convicted Defendant of second-degree murder and that there was no issue regarding innocence on that count. The State further argued that if error had occurred, it had been invited by the defense—in that the defense had agreed to the jury instructions and verdict forms, had heard the verdicts read in open court, and had made no objection or argument. Among other contentions, the State maintained that the instructions and the verdict forms made it clear that the State was proceeding under two distinct theories of murder and that the jury's verdicts indicated its understanding of that distinction.

{9} After the hearing, the trial court issued a written order dismissing the case with prejudice, which stated, "[T]here is unitary conduct in this matter, the essential elements to be re-tried are identical to those for which the Defendant was acquitted, and there was not a waiver of the double jeopardy claim, if it is subject to such waiver." The State appeals from that order.

II. DISCUSSION

{10} The State contends that double jeopardy does not apply because the jury returned a conviction for second-degree murder and because acquittal cannot be implied from that conviction. The State further argues that the only way double jeopardy can be found in this case is by implying an acquittal from the conviction—that is, we must assume that the jury must have also meant to acquit on the second-degree felony murder theory. Defendant limits his focus to the verdict form that acquits him of second-degree deliberate intent murder, and he asserts that an acquittal of one second-degree murder offense is an acquittal of the other second-degree murder offense because the offenses are the same and double jeopardy therefore prevents retrial. We disagree with this conclusion.

A. Standard of Review

{11} Double jeopardy claims are not waived and can be raised at any time before or after entry of a judgment. NMSA 1978, § 30-1-10 (1963). We review double jeopardy claims de novo. See State v. Schoonmaker, 2005-NMCA-012, ¶ 19, 136 N.M. 749, 105 P.3d 302, cert. granted, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 579.

B. New Mexico Constitution

{12} Defendant recognizes that the double jeopardy clause of the Fifth Amendment protects "a defendant against a second prosecution for the same offense after acquittal." Citing to State v. Gomez, 1997-NMSC-006, ¶ 19, 122 N.M. 777, 932 P.2d 1, Defendant acknowledges that because his rights are protected under the federal constitution, "this Court need not examine the state constitutional claim." Nevertheless, Defendant argues that he preserved his state constitutional claim, as required in State v. Lynch, 2003-NMSC-020, ¶ 13, 134 N.M. 139, 74 P.3d 73, and further that this Court should read Lynch to allow Article II, Section 15, to be interpreted more expansively than the double jeopardy clause of the Fifth Amendment.

{13} We decline to address Defendant's argument because he did not properly preserve it. See State v. Vaughn, 2005-NMCA-076, ¶ 7, 137 N.M. 674, 114 P.3d 354. Under Gomez, our first inquiry must be whether the state constitution has been held to provide greater protection under similar circumstances than the federal constitution does. Lynch, 2003-NMSC-020, ¶ 13, 134 N.M. 139, 74 P.3d 73. No New Mexico case has applied an expansive interpretation to the acquittal aspect of the New Mexico double jeopardy clause. Id. Accordingly, proper preservation requires a defendant to "raise this claim in the trial court and provide a basis to interpret the state constitution differently." Vaughn, 2005-NMCA-076, ¶ 7, 137 N.M. 674, 114 P.3d 354; see also Lynch, 2003-NMSC-020, ¶ 13, 134 N.M. 139, 74 P.3d 73. We agree that Defendant did cite to the state constitution in his pleadings, but he did not articulate why the provisions of the state constitution should be interpreted differently from those of the federal constitution. By failing to present to the trial court any argument or authority in support of a more expansive interpretation of Article II, Section 15, of the New Mexico...