State v. McDonald

• Decision Date: 23 September 2004
• Docket Number: No. 28,237.,28,237.
• Citation: 136 N.M. 417,2004 NMSC 33,99 P.3d 667
• Parties: STATE of New Mexico, Plaintiff-Petitioner, v. Joseph McDONALD, Defendant-Respondent.
• Court: New Mexico Supreme Court

99 P.3d 667

136 N.M. 417

2004 NMSC 33

STATE of New Mexico, Plaintiff-Petitioner, v. Joseph McDONALD, Defendant-Respondent.

No. 28,237.

Supreme Court of New Mexico.

September 23, 2004.

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

John Bigelow, Chief Public Defender, Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Respondent.

OPINION

BOSSON, Justice.

{1} In this opinion we decide whether sentencing under NMSA 1978, Section 31-18-15(A)(2), -(4) (1999, prior to 2003 amendments) requires that a jury, and not the judge, determine whether the crime is one "resulting in the death of a human being." Applying Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we conclude that the court erred in not submitting the question to the jury, but we also find the error harmless in the context of this case. Secondly, we hold that conspiracy is not an enumerated "serious violent offense" under the Earned Meritorious Deduction Act (EMDA), NMSA 1978, § 33-2-34(L)(4) (1999, prior to 2003 amendments), and therefore, conviction of conspiracy does not disqualify one for eligibility for good time credit for that resulting sentence. For the most part we affirm the Court of Appeals, but reverse its determination that the Apprendi error was not harmless.

BACKGROUND

{2} Victim, a truck driver from California, met Defendant in a bar in Lordsburg, New Mexico on the evening of September 24, 1999. Victim and Defendant played pool and drank beer prior to accompanying Defendant's girlfriend, Onisha Aguilera, back to Aguilera's apartment. Defendant, Victim, and Aguilera used cocaine, and then Victim continued to drink until he fell asleep. Defendant and Aguilera left the apartment to procure more drugs, leaving Victim asleep in the apartment.

{3} Defendant and Aguilera met Lorenzo Mora after leaving the apartment. Defendant and Mora returned to Aguilera's apartment to get more money from Victim. According to one version of the evidence, upon arriving at the apartment Defendant picked up a large metal pipe and handed it to Mora. Mora proceeded to enter the bedroom where Victim was sleeping and hit Victim in the head, fracturing his skull twice. Expert testimony offered at trial proved that the attack ultimately caused Victim's death approximately two hours later. Defendant then removed approximately $180.00 from Victim's pocket. After leaving the apartment, Defendant and Mora rejoined Aguilera and traveled to Palomas, Mexico.

{4} Defendant, Mora, and Aguilera were apprehended ten days later upon their re-entry into the United States. At trial, Defendant faced charges of felony murder, or in the alternative, second degree murder (Count I), conspiracy to commit felony murder, or in the alternative, conspiracy to commit second degree murder (Count II), armed robbery (Count III), and conspiracy to commit armed robbery (Count IV). The jury was unable to decide on a verdict with respect to Counts I and II, but returned guilty verdicts on Counts III and IV. The district court declared a mistrial on Counts I and II, but did not poll the jury.

{5} In sentencing Defendant for his convictions on Counts III and IV, the district court imposed sentences that pertain to second and third degree felonies "resulting in the death of a human being" under Section 31-18-15(A)(2), -(4) (fifteen years and six years respectively), instead of the sentences corresponding to generic second and third degree felonies without the nexus to a death under Section 31-18-15(A)(3), -(5) (nine and three years respectively). With other aggravating factors and habitual offender considerations, Defendant was sentenced to a total of thirty-six years. The district court also restricted the good time credit available to Defendant while incarcerated under the EMDA which limited good time credit eligibility for certain violent crimes.

{6} On appeal to the Court of Appeals, Defendant argued that, under Apprendi, any penalty beyond the basic sentence applicable to generic second and third degree felonies must be determined by a jury, properly instructed to decide whether the crimes "result[ed] in the death of a human being," and not by the sentencing judge. Defendant also argued that the court could not reduce his good time eligibility under the EMDA for the conspiracy conviction, because conspiracy was not an enumerated crime under that statute. Defendant raised other issues not relevant to this opinion. The Court of Appeals agreed with Defendant in regard to the Apprendi issue, and overturned the sentences imposed by the sentencing judge. State v. McDonald, 2003-NMCA-123, ¶¶ 7-17, 134 N.M. 486, 79 P.3d 830. The Court also agreed with Defendant that his conviction for conspiracy did not authorize the district court to limit good time eligibility under the EMDA. Id. ¶ 20. We granted the State's petition for certiorari to review these two questions.

DISCUSSION

{7} Prior to the 2003 amendments, which do not apply to this case, Section 31-18-15(A) of the Criminal Sentencing Act provides in pertinent part:

If a person is convicted of a noncapital felony, the basic sentence of imprisonment is as follows:

...

(2) for a second degree felony resulting in the death of a human being, fifteen years imprisonment;

(3) for a second degree felony, nine years imprisonment;

(4) for a third degree felony resulting in the death of a human being, six years imprisonment;

(5) for a third degree felony, three years imprisonment;

....

As is evident from the language of the statute, the legislature has chosen one basic sentence for generic second and third degree felonies, and a different basic sentence with a greater penalty when an additional fact is found: a crime "resulting in death." The State argues that this additional fact can be found by the sentencing court instead of the jury, and that the Court of Appeals misinterpreted both Apprendi and the Criminal Sentencing Act. On this point, we agree with our Court of Appeals.

{8} In Apprendi, the United States Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348; see also Blakely v. Washington, ___ U.S. ___, ___, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004)

("When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment.. . ." (Internal quotation marks and citation omitted.)). In this case, the jury found Defendant guilty of armed robbery and conspiracy to commit armed robbery; the jury was not instructed to find whether the crimes resulted in death and did not do so. Instead, the trial court made the finding that the crimes resulted in death; this finding triggered the different basic sentences, with higher punishment, as set forth in Section 31-18-15(A)(2), -(4). It is clear under Apprendi and Blakely, that the jury, and not the judge, must find "all the facts which the law makes essential to the punishment." Blakely, 124 S.Ct. at 2537. We affirm this portion of the Court of Appeals opinion. However, error in failing to instruct the jury on an element, even constitutional error founded on Apprendi, is subject to an analysis for harmless error.

Harmless Error

{9} The State urges this Court to find any sentencing error harmless because, even if properly instructed, no reasonable juror could ever have concluded that Defendant's armed robbery did not result in Victim's death. The State also points out, and correctly so, that Defendant has never contested this fact. Because this appeal does not involve a structural error, such as the complete denial of counsel or a biased trial judge, we apply the constitutional harmless error analysis described in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Neder v. United States, 527 U.S. 1, 7-8, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In Neder, the U.S. Supreme Court applied a harmless error review to jury instructions that omitted an element of the crime. Apprendi-type error is similar to the error at issue in Neder; it concerns elements omitted from the jury instructions. Not surprisingly, therefore, numerous courts have applied Neder harmless error analysis to Apprendi errors. See State v. Gordon, 262 Wis.2d 380, 663 N.W.2d 765, 776 (2003)

("Neder's harmless error analysis has been applied to Apprendi-type errors in every single federal appellate circuit." (Collecting cases.)).

{10} Recent cases from this Court observe that, although the U.S. Supreme Court has articulated the Chapman harmless error standard in different ways, the central focus of the harmless error inquiry has endured. See State v. Alvarez-Lopez, ___ N.M. ___, ¶ 27, 98 P.3d 699 (2004); State v. Johnson, ___ N.M. ___, ¶ 10, 98 P.3d 998 (2004). The constitutional harmless error inquiry requires us to determine "whether it appears `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Neder, 527 U.S. at 15,119 S.Ct. 1827 (quoting Chapman, 386 U.S. at 24,87 S.Ct. 824). In Neder, which involved a failure to instruct the jury on an element of the crime—as opposed to an error in admitted evidence, as in Chapman—the court focused its harmless error analysis upon whether the omitted element was uncontested and whether it was supported by overwhelming evidence. Neder, 527 U.S. at 17,119 S.Ct. 1827. We have also cautioned that "the reviewing court must ever bear in mind that criminal defendants have a constitutional right to have a jury decide guilt or innocence, not appellate court judges during review on appeal." Johnson, ___ N.M. at ¶ 10, 98 P.3d 998 (internal citations omitted).

{11} In applying harmless error analysis under Neder to this case, we...