State v. Lynch

• Decision Date: 09 July 2003
• Docket Number: No. 26,252.,26,252.
• Citation: 2003 NMSC 20,74 P.3d 73,134 N.M. 139
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Martin LYNCH, Defendant-Appellant.
• Court: New Mexico Supreme Court

74 P.3d 73

134 N.M. 139

2003 NMSC 20

STATE of New Mexico, Plaintiff-Appellee, v. Martin LYNCH, Defendant-Appellant.

No. 26,252.

Supreme Court of New Mexico.

July 9, 2003.

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

Patricia A. Madrid, Attorney General, Arthur W. Pepin, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

MINZNER, Justice.

{1} Defendant appeals from an order of the district court denying his motion to dismiss an amended criminal information charging him with first-degree murder. Defendant contends the district court erred in ruling that the district attorney's decision to charge him with first-degree murder, following the Court of Appeals' reversal of his conviction for second-degree murder, was not contrary to federal and state constitutional protections against double jeopardy and prosecutorial vindictiveness. Defendant initially appealed the order of the district court to the Court of Appeals. See State v. Apodaca, 1997-NMCA-051, ¶ 17, 123 N.M. 372, 940 P.2d 478 (holding defendant has a constitutional right to appeal from an order denying a double jeopardy objection to an indictment). The Court of Appeals certified the matter to us on the ground that language in State v. Martinez, 120 N.M. 677, 678, 905 P.2d 715, 716 (1995), appeared to be inconsistent with the portion of Article II, Section 15 of the New Mexico Constitution that provides protection against double jeopardy. See Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973) (holding that the Court of Appeals is bound by Supreme Court precedent); NMSA 1978, § 34-5-14(C) (1966). We accepted certification and now reverse the district court's order denying Defendant's double jeopardy claim. We do not reach the issue of prosecutorial vindictiveness.

I

{2} The following facts appear to be undisputed. In April 1996, Defendant and Kim Gurley, who was then separated from her husband Richard Gurley, were living together. On the night of April 15, Defendant and Richard argued during a telephone conversation. Following this argument, Richard and his brother drove to the house where Defendant and Kim were living. Richard pounded on the door and front windows, yelling for Defendant to come out and fight. After the door to the home was opened, Richard grabbed Defendant and pulled him from the house, throwing him to the ground. The two men exchanged punches. Defendant fatally stabbed Richard during the fight.

{3} The State filed a criminal complaint that night, which described the crime as "Murder in the First Degree Open Charge," and stated that Defendant had killed Richard "by an act greatly dangerous to the lives of other[s]." See NMSA 1978, § 30-2-1(A)(3) (1994). At the preliminary hearing, however, the magistrate judge bound Defendant over for trial on the offense of second-degree murder. On April 30, 1996, the State filed a criminal information charging Defendant with second-degree murder, contrary to Section 30-2-1(B).

{4} Defendant was tried before a jury in January 1997, and convicted of second-degree murder. Defendant successfully appealed his conviction. State v. Lynch, No. 18,368, slip op. (N.M.Ct.App. Dec. 16, 1998). The Court of Appeals reversed Defendant's conviction on the ground that the district court's denial of a requested instruction on self-defense or defense of a dwelling as an element of the second-degree murder instruction was potentially confusing to the jury, contrary to State v. Parish, 118 N.M. 39, 878 P.2d 988 (1994). Lynch, No. 18,368, slip op. at 5.

{5} On remand to the district court, Defendant was scheduled to be retried for second-degree murder on July 19, 1999. On defense counsel's motion, trial was continued until September 27, 1999. The prosecutor then spoke with Ginger Dickinson, the girlfriend of Kim Gurley's step-father, for the first time. In that interview, Dickinson said that prior to the killing she had heard Defendant say that he had learned in prison how to kill a person by stabbing him with a single thrust and that he was going to kill Richard in this way. On August 6, 1999, the State filed an amended criminal information charging Defendant with premeditated first-degree murder, contrary to Section 30-2-1(A).

{6} Defendant filed a motion to dismiss the first-degree murder charge, alleging that the charge violated his double jeopardy rights and constituted prosecutorial vindictiveness. The district court denied Defendant's double jeopardy claim without a hearing. However, the court ordered an evidentiary hearing on the claim of prosecutorial vindictiveness, reasoning that the circumstances surrounding the State's filing of a greater charge against Defendant—more than three years after the offense was committed and following a successful appeal—raised a presumption of prosecutorial vindictiveness. Following the hearing, the court determined that the State had overcome the presumption of prosecutorial vindictiveness by proving that newly-discovered evidence led to the filing of the greater charge against Defendant. Defendant subsequently moved twice for reconsideration of the court's denial of his double jeopardy claim. The court denied both motions.

{7} Defendant appealed the district court's denial of his double jeopardy claim to the Court of Appeals. In certifying this matter, the Court of Appeals noted that Defendant's double jeopardy argument appeared meritorious based on the plain language of Article II, Section 15 of the New Mexico Constitution, but was inconsistent with this Court's interpretation of the substantially similar double jeopardy statute, NMSA 1978, § 30-1-10 (1963), in Martinez. State v. Lynch, No. 21,108 (N.M.Ct.App. Mar. 23, 2000) (order certifying matter to the Supreme Court). In Martinez, we stated that the language upon which Defendant now relies precludes retrial of a greater offense "only after an acquittal of that offense." 120 N.M. at 678, 905 P.2d at 716.

II

{8} Under State v. Gomez, 1997-NMSC-006, 122 N.M. 777, 932 P.2d 1, we first analyze Defendant's double jeopardy claim under the federal constitution. If Defendant's rights are protected under the federal constitution, we will not examine Defendant's state constitutional claim. Id. ¶ 19. If the federal constitution does not protect the asserted right, we analyze Defendant's claim under the state constitution. Id.

III

{9} The federal double jeopardy clause has been said to embody three separate protections: (1) protection against a second prosecution for the same offense after acquittal; (2) protection against a second prosecution for the same offense after conviction; and (3) protection against multiple punishments for the same offense. See, e.g., Justices of Boston Mun. Court. v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984). In discussing the policies which underlie the double jeopardy clause, the United States Supreme Court has stated:

The constitutional prohibition against `double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Serfass v. United States, 420 U.S. 377, 387-88, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975) (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957)).

{10} The amended information is not a second prosecution for the same offense after acquittal under the federal double jeopardy clause. The jury did not acquit Defendant of first-degree murder; that charge was dismissed before trial started. Serfass, 420 U.S. at 391, 95 S.Ct. 1055 (stating that "the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier `having jurisdiction to try the question of the guilt or innocence of the accused'") (quoting Kepner v. United States, 195 U.S. 100, 133, 24 S.Ct. 797, 49 L.Ed. 114 (1904)). Nor would Defendant's conviction on second-degree murder charges impliedly acquit Defendant of first-degree murder, because second-degree murder was the highest degree of crime charged against him. This is analogous to Montana v. Hall, 481 U.S. 400, 403-04, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987), where the United States Supreme Court held that a defendant who had been convicted under a statute not yet in effect at the time of the alleged conduct could be retried after reversal on appeal for a related offense. See also Lowery v. Estelle, 696 F.2d 333, 340-42 (5th Cir.1983) (holding that a conviction for a lesser offense that is subsequently set aside on appeal does not prevent prosecution of a greater charge not considered at the first trial, because there had been no acquittal of the greater offense at the first trial); cf. Green, 355 U.S. at 191, 78 S.Ct. 221 (holding that the double jeopardy clause prohibits retrial on an offense of which a defendant has been impliedly acquitted in a previous trial). The amended information also does not involve a second prosecution "for an allegedly different offense in the face of ... an unreversed conviction for another offense arising out of the same transaction," United States v. Ewell, 383 U.S. 116, 124, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966), because Defendant's conviction for second-degree murder has been reversed. Finally, Defendant has not been punished more than once for the same offense.

{11} The amended information does not implicate any of the three protections embodied...