State v. Mann

• Citation: 2000 NMCA 88,11 P.3d 564,129 N.M. 600
• Decision Date: 06 June 2000
• Docket Number: No. 19,479.,19,479.
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. William Mark MANN, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

11 P.3d 564

129 N.M. 600

2000 NMCA 88

STATE of New Mexico, Plaintiff-Appellee, v. William Mark MANN, Defendant-Appellant.

No. 19,479.

Court of Appeals of New Mexico.

June 6, 2000.

Certiorari Granted October 19, 2000.

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

Billy R. Blackburn, Albuquerque, NM, for Appellant.

Certiorari Granted, No. 26,582, October 19, 2000.

OPINION

APODACA, Judge.

{1} Defendant appeals his convictions for second-degree murder, intentional child abuse resulting in death, and aggravated battery of a household member. He raises three issues on appeal: (1) extraneous material was presented to the jury by one of the jurors, which (a) tainted the jury process and (b) entitled Defendant to a new trial, or at the least an evidentiary hearing, to determine whether Defendant was prejudiced by the extraneous material; (2) his convictions for both second-degree murder and intentional child abuse resulting in death violate his right not to be placed in double jeopardy; and (3) the trial court erred in not giving an instruction on defense of another as a defense to the aggravated battery against a household member.

{2} On Issue 2, we hold that although Defendant can be charged with both second-degree murder and intentional child abuse resulting in death, he cannot be convicted of both crimes without violating his right to be free from double jeopardy. On Issue 3, we determine that Defendant was entitled to a jury instruction on his defense of another claim to the charge of aggravated battery against a household member. Finally, on Issue 1, the panel is divided, and on that issue this opinion represents a dissenting view. The majority having held otherwise on this issue, we affirm only the conviction of intentional child abuse resulting in death, based on our disposition of Issue 2. Departing from the views expressed by my esteemed colleagues, I would hold that extraneous material came before the jury, resulting in a presumption of prejudice to Defendant. I would also hold that the State failed to rebut the presumption and as a result Defendant is entitled to a new trial. Because I dissent on this issue, this opinion will first discuss Issues 2 and 3, on which the entire panel concurs, followed by my own discussion and proposed disposition of Issue 1.

I. FACTUAL AND PROCEDURAL BACKGROUND

{3} In the early morning hours of August 30, 1996, Noel Mann, Defendant's six-year-old son, suffered a fatal injury as a result of being impaled in the chest by a screwdriver. Defendant contended that the child, upon leaving the bathroom, slipped on a rug, knocked the screwdriver off a hamper, and then fell on the screwdriver, causing the fatal injury. The State contended that Defendant intentionally stabbed the child with the screwdriver. After the child received the injuries, Defendant's live-in fiancee, called 911 and attempted to help the child. Defendant, apparently believing that it would be fatal to the child if he was moved, attempted to prevent his fiancee from assisting by physically attacking her.

{4} During the trial, Defendant called a physicist as an expert witness to testify on the possibility or probability for the child's injury to have occurred in the manner contended by Defendant. The expert witness testified regarding the mechanics, including the speed of falling bodies, the biomechanics of hard objects striking the human body, the amount of force necessary to cause certain injuries, and the probability, in general terms, of a screwdriver falling off a hamper in such a manner as to cause the injuries that ultimately resulted in the death of Defendant's son. The expert concluded that, although a series of events playing out as Defendant posited was not "impossible," the "probability" of such an occurrence "was extremely small."

{5} After the jury returned a guilty verdict, Defendant's trial attorney interviewed some of the members of the jury. The interviews revealed that during jury deliberations, Juror No. 7, who had a background in engineering and physics, presented his views on Defendant's expert witness' testimony to the other eleven jurors. In particular, Juror No. 7 performed probability calculations for the other jurors and wrote those calculations down on an easel. The calculations he performed and presented were not presented by Defendant's expert witness.

{6} Defendant filed a motion for a new trial based on this information and filed a request for an evidentiary hearing to determine whether and to what extent extraneous material was considered by the jury in reaching its verdict. The trial court did not hold an evidentiary hearing, but instead, outside of the presence of both the State and Defendant, interviewed Juror No. 7 and the four other jurors that Defendant indicated had knowledge of the extraneous material. A transcript of those interviews was made available to both Defendant and the State. The trial court also informed both counsel before the scheduled interviews that if there were additional jurors they wanted to be interviewed or additional questions they requested be asked, they were to so advise the trial court. After interviewing the five jurors, the trial court ruled that the jury based its decision solely on the evidence presented at trial. The court thus denied the motion for a new trial.

II. DISCUSSION

A. Defendant's Conviction for Second-Degree Murder and Child Abuse Resulting in Death Violated Defendant's Right to be Free from Double Jeopardy

{7} Defendant, relying on his constitutional right of protection from double jeopardy as guaranteed by the Fifth Amendment to the United States Constitution and Article II, Section 15 of the New Mexico Constitution, contends that his conviction for second-degree murder for the death of his child and his conviction for child abuse resulting in death for the death of the same child violates his right to be free from double jeopardy. See U.S. Const. Amend V; N.M. Const. art. II, § 15. We agree.

{8} The double jeopardy clauses of both constitutions protect against multiple punishments for the same offense. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991). Our Supreme Court has adopted a two-part test, known as the Swafford analysis, to be used in analyzing a double jeopardy claim based upon multiple punishments for the same offense.

The first step is to ask whether the conduct underlying the offenses is unitary, i.e., whether the same conduct of the defendant violates more than one statute. The second step is to ask whether the Legislature intended to impose multiple punishments for the unitary conduct. Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.

State v. Carrasco, 1997-NMSC-047, ¶ 22, 124 N.M. 64, 946 P.2d 1075 (citations omitted; internal quotation marks omitted).

{9} Conduct is unitary if it is not sufficiently separated by time or place, and the object and result or quality and nature of the act cannot be distinguished. See State v. Livernois, 1997-NMSC-019, ¶ 20, 123 N.M. 128, 934 P.2d 1057

; State v. Contreras, 120 N.M. 486, 490, 903 P.2d 228, 232 (1995); Swafford, 112 N.M. at 13-14,

810 P.2d at 1233-34. Defendant was charged with and ultimately convicted of second-degree murder and child abuse resulting in death. The State's theory was that Defendant impaled his son in the chest with a screwdriver. It is not disputed that there was only one act, the impaling of the child with the screwdriver, and only one victim. Cf. State v. Barr, 1999-NMCA-081, ¶ 18, 127 N.M. 504, 984 P.2d 185. As a result, there was no separation of time or place, and the result, quality, and nature of the act cannot be distinguished. Swafford, 112 N.M. at 13-14,

810 P.2d at 1233-34. Consequently, the act was unitary.

{10} Because we have determined that the conduct was unitary, we must next consider the second prong—whether the Legislature intended to impose multiple punishments in this instance. Carrasco, 1997-NMSC-047, ¶ 23, 124 N.M. 64, 946 P.2d 1075. Initially, we conduct this inquiry by determining if the elements of one offense are subsumed within the elements of the other. Id. If they are, then for double jeopardy purposes, the statutes are the same, and Defendant cannot be punished for violating both statutes. Id.

{11} To find Defendant guilty of child abuse resulting in death, the jury was required to find the following elements: (1) Defendant intentionally and without justification cruelly punished his son; (2) Defendant's actions or failure to act resulted in his son's death; (3) Defendant's son was less than eighteen years of age. See UJI 14-602 NMRA 1999; NMSA 1978, § 30-6-1(C) (1989). "Intentionally" is defined as purposely doing an act. See UJI 14-610 NMRA 1999. The elements of second-degree murder are: (1) Defendant killed another human being without lawful justification; and (2) Defendant knew that his acts created a strong probability of death or great bodily harm to another human being. See UJI 14-210 NMRA 1999; NMSA 1978, § 30-2-1(B) (1994). The State must also prove that Defendant acted intentionally, that is, that he purposely did the act the law declares to be a crime even if he did not know it was unlawful. See UJI 14-141 NMRA 1999.

{12} Under either statute, there is a requirement that the jury find that Defendant intentionally committed an act that resulted in the death of his son. Because there are additional elements to the crime of child abuse resulting in death, namely that the victim is less than eighteen, and that Defendant must be acting to cruelly punish the victim, our inquiry should focus on whether Defendant could have committed intentional child abuse resulting in death without committing second-degree murder. Under either statute, he must act intentionally. Under the second-degree...