State v. Melendrez

• Citation: 326 P.3d 1126
• Decision Date: 02 June 2014
• Docket Number: No. 32,203.,32,203.
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Gilbert MELENDREZ, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

326 P.3d 1126

STATE of New Mexico, Plaintiff–Appellee,

v.Gilbert MELENDREZ, Defendant–Appellant.

No. 32,203.

Court of Appeals of New Mexico.

April 23, 2014.

Certiorari Denied, June 2, 2014, No. 34,688.

Gary K. King, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender, Allison H. Jaramillo, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

WECHSLER, Judge.

{1} Defendant Gilbert Melendrez raises numerous claims of error in connection with his convictions stemming from an automobile accident. We address, in particular, whether Defendant's convictions of both homicide by vehicle under NMSA 1978, Section 66–8–101(A) (2004), and knowingly leaving the scene of an accident involving great bodily harm or death under NMSA 1978, Section 66–7–201(C) (1989), violate Defendant's double jeopardy protection against multiple punishments for the same offense. We hold that these convictions do not violate Defendant's double jeopardy rights and, accordingly, affirm the judgment of the district court. Defendant also challenges the sufficiency of the evidence underlying his convictions for intentional child abuse by endangerment, tampering with evidence, vehicular homicide, and knowingly leaving the scene of an accident. He additionally challenges the court's refusal to change his trial venue, admission into evidence of a taped interview he gave to the police, admission into evidence of the phone calls with his wife from jail, and determination that the homicide by vehicle offense was a serious violent offense. All claims of error raised by Defendant fail. Accordingly, we affirm the judgment of the district court.

BACKGROUND

{2} Defendant was convicted in connection with an accident in which a red pickup truck was driven toward a group of “trick or treaters.” Their chaperone, Leora Dyess, pushed the children out of the way but was struck and killed by the truck. The driver left the scene, eluding a motorist who observed the accident and then gave chase.

{3} Witnesses were able to describe the truck in some detail. Acting on a tip, police obtained a search warrant and impounded Defendant's truck. Shards found at the scene matched damage on Defendant's truck. Details of Defendant's truck were consistent with the description offered by the eyewitnesses to the accident. Through inspection by an alternative light-source, Defendant's truck was found to have been wiped clean on the front only.

{4} Defendant was arrested and, at trial, maintained that he loaned his truck to a friend on the evening of the accident. After hearing the evidence, including testimony of witnesses at the scene of the accident, a jury found Defendant guilty of homicide by vehicle, negligent child abuse not causing death or great bodily harm, failure to give immediate notice of an accident, knowingly leaving the scene of an accident involving great bodily harm or death, driving with a suspended license, and tampering with evidence. Defendant raises seven issues on appeal that we address in turn.

DOUBLE JEOPARDY

{5} Defendant contends that his separate convictions of homicide by vehicle and knowingly leaving the scene of an accident involving great bodily harm or death violate the double jeopardy clause of the Fifth Amendment of the United States Constitution. The double jeopardy clause provides that no person can be put in jeopardy of life or limb twice for the same offense. U.S. Const. amend. V. As a constitutional question of law, we review a double jeopardy challenge de novo. State v. Swick, 2012–NMSC–018, ¶ 10, 279 P.3d 747.

{6} The double jeopardy clause prohibits three distinct categories of multiple punishments: “(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” State v. Montoya, 2013–NMSC–020, ¶ 23, 306 P.3d 426 (internal quotation marks and citation omitted). This case implicates the third category, which is further divisible into two sub-categories: (1) cases in which a defendant is charged with more than one violation of the same statute—so called, “unit of prosecution cases”; and (2) cases in which a defendant faces multiple convictions under different statutes—“double-description cases.” State v. DeGraff, 2006–NMSC–011, ¶ 25, 139 N.M. 211, 131 P.3d 61 (internal quotation marks omitted). Because Defendant challenges two convictions under different statutes for what he contends is the same conduct, Defendant's double jeopardy appeal raises a double-description issue.

{7} Double-description cases are subject to the two-part analysis elucidated in Swafford v. State, 1991–NMSC–043, ¶¶ 8–9, 25, 112 N.M. 3, 810 P.2d 1223. See also Swick, 2012–NMSC–018, ¶ 11, 279 P.3d 747 (stating that the two-part test from Swafford governs double-description cases). The touchstone of the double-description analysis is legislative intent. State v. Frazier, 2007–NMSC–032, ¶ 18, 142 N.M. 120, 164 P.3d 1. When the Legislature intends multiple punishments under different statutes, there is no double jeopardy violation. See Swafford, 1991–NMSC–043, ¶ 25, 112 N.M. 3, 810 P.2d 1223 (“[T]he sole limitation on multiple punishments is legislative intent[.]”). The first inquiry is whether the conduct underlying the convictions was, in fact, the same; that is, whether the conduct was “unitary.” Swick, 2012–NMSC–018, ¶ 11, 279 P.3d 747. If the conduct was not unitary, the inquiry stops because there is no double jeopardy violation. Id. If it was unitary, we consider whether the Legislature intended to create separate punishments for the crimes at issue. Montoya, 2013–NMSC–020, ¶ 29, 306 P.3d 426.

{8} “To determine whether a defendant's conduct was unitary, we consider such factors as whether acts were close in time and space, their similarity, the sequence in which they occurred, whether other events intervened, and the defendant's goals for and mental state during each act.” State v. Franco, 2005–NMSC–013, ¶ 7, 137 N.M. 447, 112 P.3d 1104. Conduct is not unitary if “the jury reasonably could have inferred independent factual bases for the charged offenses.” State v. Saiz, 2008–NMSC–048, ¶ 30, 144 N.M. 663, 191 P.3d 521 (internal quotation marks and citation omitted), abrogated on other grounds by State v. Belanger, 2009–NMSC–025, 146 N.M. 357, 210 P.3d 783.

{9} Defendant argues that, under the authority of State v. Franklin, 1993–NMCA–135, 116 N.M. 565, 865 P.2d 1209, the conduct giving rise to his convictions for homicide by vehicle and knowingly leaving the scene of an accident resulting in death or bodily injury is unitary. In Franklin, the defendant shot someone during a game of “quick draw.” Id. ¶ 2. The state charged the defendant with involuntary manslaughter by negligent use of a firearm and also sought a sentence enhancement based on the use of a firearm in the commission of the offense. Id. We held that the conduct was unitary because the use of the firearm was the basis for both the charge and the enhancement. Id. ¶ 5. Defendant contends that this case is like Franklin and that his conduct is unitary because the “identical act of causing the car accident and killing Ms. Dyess” was the basis of the convictions for both vehicular homicide and knowingly leaving the scene of an accident involving great bodily harm or death. We do not agree.

{10} The unitary conduct analysis in this case is unlike Franklin because in that case there was only a single, undelimited, criminal act—the defendant's shooting of his quick-draw partner. The defendant in Franklin was charged with a crime, and the state sought a sentence enhancement based on the use of a firearm during the commission of the crime. In this case, Defendant, by definition, completed one crime—causing the accident that killed Ms. Dyess—before beginning the other by fleeing from the accident. Furthermore, evidence was presented that Defendant paused after running over Ms. Dyess prior to driving away. With the exception of instances in which the Legislature has intended to make two offenses unitary by definition,¹ when there is an identifiablepoint between the completion of one crime and the beginning of the other, conduct is not unitary and multiple punishments are authorized. See DeGraff, 2006–NMSC–011, ¶ 27, 139 N.M. 211, 131 P.3d 61 (stating that conduct is not unitary and multiple punishments are authorized when there is “an identifiable point at which one of the charged crimes ha[s] been completed and the other not yet committed”).

{11} Also, the two statutes at issue are designed to protect against distinct evils, indicating that our Legislature intended to proscribe different units of conduct. See Frazier, 2007–NMSC–032, ¶¶ 19, 23, 142 N.M. 120, 164 P.3d 1 (stating that the unitary conduct issue is dependent on what the Legislature intended as the unit of conviction and that, ultimately, the space-time analysis of a defendant's criminal acts informs the legislative intent analysis). Section 66–8–101(A) punishes reckless driving that results in significant bodily harm or, as in this case, death, to another. Section 66–7–201(C) addresses the harm caused by drivers who knowingly leave the scene of an accident involving great bodily harm or death and fail to fulfill the duty to render aid and provide pertinent identification information. Under Section 66–7–201(C), the driver's culpability for the accident is not relevant. Under Section 66–8–101(A), it does not matter whether a driver renders aid or flees. Additionally, in accordance with the fact that the two statutes address different harms, the goals and mental states of drivers who violate these two statutes are likely to be different. See State v. Franco, 2005–NMSC–013, ¶ 7, 137 N.M. 447, 112 P.3d 1104 (stating that a defendant's goals for and mental states during each act are relevant to the unitary conduct analysis). In this case,...