State v. McGuire

• Citation: 110 N.M. 304,795 P.2d 996,1990 NMSC 67
• Decision Date: 28 June 1990
• Docket Number: No. 17854,17854
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Travis L. McGUIRE, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 996

795 P.2d 996

110 N.M. 304

STATE of New Mexico, Plaintiff-Appellee, v. Travis L. McGUIRE, Defendant-Appellant.

No. 17854.

Supreme Court of New Mexico.

June 28, 1990.

[110 N.M. 306] Jacquelyn Robins, Chief Public Defender, Susan Gibbs, Appellate Defender, Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Margaret B. Alcock, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

RANSOM, Justice.

Travis McGuire was convicted of first-degree kidnapping, second-degree criminal sexual penetration, and willful and deliberate first-degree murder in connection with the disappearance of Jena Marie Repp from Albuquerque on December 6, 1985. The jury imposed a life sentence for the capital offense, despite finding the existence of two aggravating circumstances: that the murder took place during the course of a kidnapping, and that it was motivated by an intent to eliminate a witness. Additionally, the trial court imposed the basic sentences for the collateral, noncapital convictions of tampering with evidence, contributing to the delinquency of a minor, and unlawful taking of a motor vehicle, as well as the maximum, aggravated sentences for kidnapping, criminal sexual penetration, and robbery. The court ordered the sentences to be served consecutively. In his appeal, McGuire argues:

1. Imposition of consecutive sentences for first-degree kidnapping and second-degree criminal sexual penetration violated his right to be free from double jeopardy in the form of multiple punishments for the same offense.

2. His sentences for kidnapping, criminal sexual penetration, and robbery must be set aside because the trial court failed to state its reasons on the record for increasing the basic sentences for these crimes.

3. Denial of his motion for change of venue and his challenges of certain jurors for cause deprived him of a fair trial and impartial jury, given the extensive and prejudicial pretrial publicity in this case.

4. Denial of his motion for sanctions or a continuance, and the misconduct of the police and prosecution, deprived him of a fair trial.

5. Failure to instruct the jury as requested and admission of certain evidence require reversal and a new trial.

As discussed below, we affirm in part and reverse in part and remand with instructions.

Jena Marie Repp disappeared after leaving her job in Albuquerque on Friday evening, December 6. Several days later, a search instituted at the request of her worried son recovered Ms. Repp's purse, jeans, and underwear on a frontage road off of I-40 near Moriarty, New Mexico. The search was otherwise unsuccessful.

In May 1986 Kentucky authorities arrested defendant after receiving a tip that he was in possession of two stolen vehicles, one of which was Ms. Repp's 1986 blue Ford Escort. Subsequent to defendant's arrest, his step-brother Ricky Martin surrendered himself to the police in Oklahoma City. Martin entered into a plea bargain with the State of New Mexico, under which he agreed to testify against defendant and to lead authorities to Ms. Repp's remains in return for prosecution on reduced charges. Martin pleaded guilty to these charges. Although somewhat different from his previous statements, Martin's testimony at trial was the linchpin of the prosecution's case. Also testifying against defendant at trial were several people he knew in Kentucky, including a woman named Kay Rader. A half-brother, Gary Martin, also testified. The testimony of these witnesses generally tended to corroborate Ricky Martin's testimony.

According to Ricky Martin's testimony, he and defendant had decided to leave Albuquerque after working there for several months. They decided to steal a car in order to get to Oklahoma City. Sometime after 6 p.m. on Friday, December 6, after cashing their last paycheck, Martin and defendant returned to the apartment complex where they lived. Repp also lived at this apartment complex. Defendant, according to Martin's testimony, walked up to Repp as she was sitting in her car outside the apartments and forced his way into the car. He pulled Ms. Repp from the front seat, slapped her, and forced her into the back. Defendant, Martin testified, then climbed in on top of his victim and told his brother to drive. As they proceeded East on I-40, defendant bound Repp's hands and feet and gagged her mouth with duct tape. He then raped her.

After pulling some money from her purse, defendant and Martin discarded it, along with her jeans and underwear, near Moriarty. When they had driven some distance further east, defendant told Martin to pull off onto a dirt road. When they stopped, defendant took his victim for a walk away from the car into the woods. Martin testified that defendant strangled Repp with Martin's belt and left her body under a tree.

Consecutive sentences for kidnapping and criminal sexual penetration did not violate double jeopardy prohibition against multiple punishments for the same offense. The double jeopardy provisions of both the state and federal constitutions protect against multiple punishments for the same offense contrary to legislative intent. U.S. Const. amend. V; N.M. Const. art. II, Sec. 15; see generally Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), courts should presume that the legislature did not intend pyramiding punishments for the same act absent clear indication to the contrary); State v. Christopher Pierce, 110 N.M. 76, 792 P.2d 408 (1990) (same). As an aspect of this general principle, courts may not impose punishment for both the greater and lesser included offenses absent a clear expression of legislative intent. Id. at 86, 792 P.2d at 418; United States v. Hernandez-Escarsega, 886 F.2d 1560, 1582 (9th Cir.1989).

The pertinent provisions of NMSA 1978, Section 30-4-1 (Repl.Pamp.1984) declare that "[k]idnapping is the unlawful taking, restraining or confining of a person, by force * * * with intent that the victim * * * be held for services against [her] will." Section 30-9-11 defines criminal sexual penetration to include "the unlawful and intentional causing of a person, other than one's spouse, to engage in sexual intercourse * * *." Subsection 30-9-11(B)(4) provides that one who commits criminal sexual penetration during "the commission of any other felony" has committed a second-degree felony, while Subsection (C) provides that one who commits criminal sexual penetration "through the use of force or coercion" has committed a third-degree felony.

As counsel for defendant noted at oral argument, our kidnapping statute differs from the common-law offense in that the statute does not require asportation of the victim. Given the statutory definitions, it is possible that nearly every act of criminal sexual penetration also will constitute the act of kidnapping. See State v. Henderson, 109 N.M. 655, 661, 789 P.2d 603, 609 (1990). Indeed, in this case the jury was instructed, pursuant to the kidnapping charge, that to " '[h]old for service' includes holding for sexual purposes." In this case, moreover, the felony used to raise criminal sexual penetration to a second-degree felony was the kidnapping itself. Defendant contends the state's charging pattern violates double jeopardy because the same acts are being used to establish both kidnapping and criminal sexual penetration and are being used yet a third time to raise the latter crime to a second-degree felony.

The state agrees that, when the facts used to establish the elements of each offense are identical, imposition of multiple punishment for violation of the kidnapping and criminal sexual penetration statutes is problematic under existing case law. See State v. Tsethlikai, 109 N.M. 371, 785 P.2d 282 (Ct.App.1989), cert. denied, 109 N.M. 262, 784 P.2d 1005 (1990); State v. Corneau, 109 N.M. 81, 781 P.2d 1159 (Ct.App.), cert. denied, 108 N.M. 668, 777 P.2d 907 (1989); State v. Singleton, 102 N.M. 66, 691 P.2d 67 (Ct.App.1984). The issue on which the state and defendant differ is whether the state relied on identical facts to convict defendant of both offenses in this case. At oral argument, counsel for defendant contended the record did not contain substantial evidence to prove a kidnapping had taken place until the time at which McGuire committed criminal sexual penetration. Until this act took place, it is contended, there was no evidence of an intent to hold the victim for services against her will. Therefore, it is argued, identical facts support both charges. (An act of restraining another does not constitute kidnapping without intent to hold for services--or for ransom or as a hostage. See Sec. 30-4-1.)

We disagree. Defendant confuses the use of the same facts to prove successive offenses that depend on separate conduct with the use of the same facts to prove concurrent offenses that depend on the same conduct. Here, substantial evidence was presented to show a deliberate course of action by defendant from the time he abducted his victim until the time he strangled her. Defendant cites no cases that hold the jury cannot infer, from evidence of acts committed at some later point during the commission of a kidnapping, that the necessary criminal intent existed at the time the victim first was restrained. Viewed in this manner, the evidence provides substantial support for an inference that defendant intended to commit criminal sexual penetration from the moment of the abduction. Once defendant restrained the victim with the requisite intent to hold her for service against her will, he had committed the crime of kidnapping, although the kidnapping continued throughout the course of defendant's other crimes and until the time of the victim's death. See State v. Hutchinson, 99 N.M. 616, 661 P.2d 1315 (1983) (kidnapping is a continuing offense); Corneau, 109 N.M. at 86-87, 781 P.2d at 1164-65 (false imprisonment is a continuing...