State v. Martinez
| Decision Date | 01 June 1989 |
| Docket Number | No. 10591,10591 |
| Citation | 781 P.2d 306,1989 NMCA 47,109 N.M. 34 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Christopher Lincoln MARTINEZ, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
A jury found defendant guilty of three counts of assisting escape of inmates from the State Penitentiary, contrary to NMSA 1978, Section 30-22-11 (Repl.Pamp.1984). Defendant has raised nine issues on appeal which we have consolidated and discuss as follows: (1) whether the charges of assisting escape were improperly filed; (2) whether defendant's convictions and sentences on three counts of assisting escape violate federal and state prohibitions against double jeopardy; (3) claim of error as to the admission of evidence; (4) sufficiency of evidence; and (5) whether the trial court erred in denying defendant's motion to dismiss. We affirm.
This case arose out of the July 4, 1987, escape by Jimmy Kinslow, William Wayne Gilbert, and David B. Gallegos from the State Penitentiary. After obtaining a gun the three inmates breached the prison's perimeter fences and made their way without detection to the city of Santa Fe where they hid in a storage shed. Three weeks later, on July 25, 1987, defendant was contacted by one of the escapees, his brother-in-law, David Gallegos, and was asked to travel to Santa Fe and drive the three to Albuquerque. Defendant agreed and took the escapees to Albuquerque and checked them into a motel.
On subsequent nights defendant drove the escapees to several different motels, paid for their rooms, and provided them with food and beer. On July 29 Kinslow left the group in Albuquerque and, without notice to defendant or his other companions, took defendant's car. Defendant's car was subsequently found broken down and abandoned at a rest stop in Arizona. Thereafter, defendant borrowed a car from a friend and drove Gallegos and Gilbert to Garden Grove, California. Defendant and each of the three escapees were subsequently arrested by authorities in California.
Defendant was charged with two counts of harboring and aiding a felon, contrary to NMSA 1978, Section 30-22-4 (Repl.Pamp.1984), and three counts of assisting escape. Following his indictment, defendant moved to have the charges of assisting escape dismissed, contending that the charges were improper and that only the charges of harboring or aiding a felon were applicable under the facts herein. The court denied the motion, holding that despite the three-week interval between the inmates' initial escape and the time that defendant was alleged to have provided assistance, the charges were appropriate because the crime of escape was a continuing offense. At the conclusion of defendant's trial, the trial court directed a verdict in favor of defendant on the two counts of harboring or aiding a felon but declined to dismiss the charges of assisting escape. Following deliberation, the jury found defendant guilty of each of the three counts of assisting escape.
Defendant contends that he was improperly charged with the offenses of assisting escape, arguing that he had no involvement in the actual breakout from the penitentiary, that any assistance which may have been given by him to the inmates occurred several weeks after the escape had been completed, and that the trial court erred in ruling that escape was a continuing offense.
Assisting escape as defined in Section 30-22-11 consists of
A. intentionally aiding any person confined or held in lawful custody or confinement to escape; or
B. any officer, jailer or other employee, intentionally permitting any prisoner in his custody to escape.
Whoever commits assisting escape is guilty of a third degree felony.
The Uniform Jury Instruction propounded by our supreme court states the elements of the offense as follows:
1. (name of prisoner) was in [custody of (name of peace officer) ] [confinement at ____________];
2. (name of prisoner) escaped;
3. The defendant aided the escape of (name of prisoner);
4. This happened in New Mexico on or about the ____________ day of ________, 19----.
SCRA 1986, 14-2224 (footnotes omitted).
To answer the question of whether the offense of escape is a continuing offense, we examine the nature and elements of the offense of escape. NMSA 1978, Sec. 30-22-9 (Repl.Pamp.1984). Specifically, we consider whether escape constitutes a continuing offense so that an escapee continues to commit the offense as long as he voluntarily remains at large, or whether the offense is complete once the escapee has successfully breached the place where he was jailed or confined and reached a point of temporary safety beyond immediate active pursuit. Concomitantly we also inquire whether charges of assisting escape of inmates may properly be brought against one who aids and assists inmates after they have broken away from confinement and are hiding from law enforcement authorities. These issues are matters of first impression in this jurisdiction.
Defendant argues that escape is not a continuing offense and, therefore, the trial court erred in allowing the prosecutor to indicate during jury selection that escape is a continuing offense and instructing the jury that escape constitutes a continuing offense. He also argues that the charges of assisting the escape of prisoners were improper and that the applicable charges, if any, which properly could be brought against him were restricted to charges of harboring or aiding a felon or felons.
We disagree with each of defendant's contentions. The crime of escape does not end at the prison door, nor at a point in time when a prisoner successfully eludes immediate pursuit or reaches temporary sanctuary. At the time defendant picked up the three inmates in Santa Fe and drove them to Albuquerque, intensive search operations were being carried out by law enforcement officials in the area where the escapees were hiding. Despite the actions of law enforcement officials, the three inmates herein managed to elude detection and make their way to a hiding place in Santa Fe. Three weeks later defendant picked up the three inmates, drove them to Albuquerque, and later took Gallegos and Gilbert to California.
The crime of escape as defined in Section 30-22-9 constitutes a second degree felony. This statute provides in part,
Escape from penitentiary consists of any person who shall have been lawfully committed to the state penitentiary:
A. escaping or attempting to escape from such penitentiary; or
B. escaping or attempting to escape from any other lawful place of custody or confinement and although not actually within the confines of the penitentiary.
When interpreting penal statutes, a court must consider the objectives and purposes sought to be accomplished by the legislature and give effect to the legislative intent. State v. Owens, 103 N.M. 121, 703 P.2d 898 (Ct.App.1984); State v. Tapia, 89 N.M. 221, 549 P.2d 636 (Ct.App.1976).
In an analogous case the Alaska Court of Appeals in Wells v. State, 687 P.2d 346 (Alaska App.1984), considered the question of whether the crime of escape constituted a continuing offense under Alaska law. The court observed,
Alaska courts have long recognized that a major risk generated by an escape is potential harm caused by the escapee while at large. See, e.g., Alex v. State, 484 P.2d 677, 685 (Alaska 1971). In Alex, the court rejected an equal protection challenge to the statutory scheme imposing greater penalties on felons who escape than on misdemeanants. The court said: Id. ...
We therefore conclude that escape under Alaska law is a continuing offense.
Similarly, in Campbell v. Griffin, 101 Nev. 718, 710 P.2d 70 (1985), the Nevada Supreme Court, in considering the duress defense to a charge of escape from the Nevada State Prison, noted,
because escape is by its nature a continuing offense that the escapee must show a bona fide effort to return to custody as soon as the claimed duress has lost its coercive force. See generally United States v. Bailey [444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) ] * * * * If the crime of escape occurred only during the course of the escapee's initial departure from custody, and did not continue thereafter, there would be no duty for the escapee to report to the authorities after the duress had terminated. Cf. United States v. Chapman, 455 F.2d 746 (5th Cir.1972). [Emphasis in original.]
Id. at 72. See also State v. Burnett, 292 Minn. 484, 195 N.W.2d 189 (1972); Parent v. State, 31 Wisc.2d 106, 141 N.W.2d 878 (1966). See generally Annotation, Duress, Necessity, or Conditions of Confinement as Justification for Escape from Prison, 69 A.L.R.3d 678 (1976).
In United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), the United States Supreme Court also considered the nature of the offense of escape from federal custody. There defendants contended that they could not be convicted of escape because the conditions of their confinement were so intolerable as to validate their defense of duress. The Supreme Court, however, held that the duress defense sought to be raised by defendants was not applicable, because defendants failed to offer evidence justifying their failure to surrender during the weeks following their escape. The Court wrote,
we think it clear beyond peradventure that escape from federal custody * * * is a continuing offense * * * Given the continuing threat to society posed...
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