State v. Phillips
| Decision Date | 07 July 2021 |
| Docket Number | No. A-1-CA-3745,A-1-CA-3745 |
| Citation | 499 P.3d 648 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Clive Dalton PHILLIPS, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Hector H. Balderas, Attorney General, Santa Fe, NM, Lauren J. Wolongevicz, Assistant Attorney General, Albuquerque, NM, for Appellee
Bennett J. Baur, Chief Public Defender, Caitlin C.M. Smith, Assistant Appellate Defender, Santa Fe, NM, for Appellant
{1} Defendant Clive Dalton Phillips was convicted of seven crimes stemming from his attack on Alexzandria Buhl (Allie) and Adrian Carriaga, during which Defendant beat and shot both victims and killed Adrian. On appeal, Defendant advances three double jeopardy challenges, arguing that he committed a single, sustained attack and should be convicted of and sentenced for only two offenses: one count of voluntary manslaughter for killing Adrian and one count of aggravated battery against a household member for his attack on Allie. We conclude that one of Defendant's convictions for aggravated battery and Defendant's misdemeanor conviction for aggravated battery against a household member violate double jeopardy principles and must be reversed, but otherwise affirm.
{2} Defendant and Allie had dated on and off since high school and began living together in 2010, the year before Allie graduated. In the summer of 2013, they shared a four-bedroom home with their close friends, Sean Madrid and Adrian. Allie gave birth to Defendant's daughter in May 2013. Not long afterward, however, she broke off the relationship when she discovered that Defendant had been cheating on her. They both continued to live in the home with Sean and Adrian, but Allie moved into a separate room with the baby (hereinafter, Allie's room).
{3} On the night of August 31, 2013, Defendant was at a friend's house and planned to stay the night. Allie, Sean, and Adrian were at home hanging out in the backyard. Defendant's and Allie's daughter was with Allie's parents. Sean testified that both Allie and Adrian turned in before he did, and when he went inside later that night, he heard moaning sounds coming from Allie's room. Sean deduced that Allie and Adrian were having sex and called Defendant at 3:49 a.m. to tell him.
{4} Defendant drove home, grabbed a baseball bat, and walked into Allie's room. He turned on the light and found Allie and Adrian naked in bed together. Defendant began hitting Adrian with the bat, striking him numerous times in the head and other parts of the body. Defendant then turned around and began beating Allie with the bat. During the attack, both Defendant and Allie yelled to Sean to call the police. Allie testified that Defendant "lost interest in the bat," he dropped the bat and left the room, at which point she closed and locked the door.
{5} Defendant went to his room and grabbed a handgun. He returned to Allie's door, shot at the handle three times, and kicked the door open. Defendant entered the room and shot Adrian twice in the chest. Allie observed that Defendant's gun was empty; he left the room again. Allie called 911. At that point, Adrian was still alive and speaking.
{6} While Allie was on the phone with 911, Defendant returned with a rifle. He placed the barrel under Adrian's chin and asked, "Are you ready?" before pulling the trigger, killing him. Defendant then turned the rifle on Allie and shot her in the leg. At some point, Defendant picked up the phone and spoke with the 911 operator for about two minutes. He identified himself and described what had happened, saying, "I just killed my best friend." After Defendant ended the call with the 911 operator, he began punching and choking Allie until she blacked out. The entire event lasted about eight minutes and ended when police arrived. Defendant immediately identified himself as the shooter and was taken into custody, where he gave an hour-long interview describing the events in detail.
{7} The State charged Defendant with first-degree murder and the lesser included offenses of second-degree murder, contrary to NMSA 1978, Section 30-2-1 (1994), and manslaughter, contrary to NMSA 1978, Section 30-2-3 (1994) (Count 1); two counts of aggravated battery (deadly weapon), contrary to NMSA 1978, Section 30-3-5 (1969) (Counts 2 and 3); and four counts of aggravated battery against a household member, contrary to NMSA 1978, Section 30-3-16 (2008, amended 2018) (Counts 4-7). After a week-long trial, a jury found Defendant guilty on all six of the various aggravated battery charges but could not reach a unanimous verdict on Count 1—the homicide charge related to Adrian's death. Following an appeal to determine whether Defendant could be retried on first- or second-degree murder charges, see State v. Phillips , 2017-NMSC-019, ¶ 18, 396 P.3d 153 (), Defendant changed his plea to guilty on the remaining voluntary manslaughter charge. The district court sentenced Defendant to twenty-five years’ imprisonment, seven of which the court suspended. Defendant appeals.
{8} "The Double Jeopardy Clause of the Fifth Amendment protects citizens against multiple punishments for the same offense." State v . Bernal , 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289. "Multiple punishment cases are of two types: those cases in which a defendant is charged with multiple violations of a single statute based on a single course of conduct (‘unit of prosecution’ cases) and those cases in which a defendant is charged with violating different statutes in a single course of conduct (‘double-description’ cases)." State v . Sena , 2020-NMSC-011, ¶ 44, 470 P.3d 227. Defendant's three double jeopardy arguments advance both types of multiple punishment challenges. "Appellate review of a claim that multiple punishments have been imposed for the same offense in violation of the Fifth Amendment prohibition against double jeopardy presents a question of law which we review de novo." Id. ¶ 43.
{9} Defendant first raises a unit of prosecution challenge as to his two convictions for aggravated battery with a deadly weapon against Adrian. The State distinguished these charges in the jury instructions based on Defendant's use of a baseball bat (Count 2) and a handgun (Count 3). "In unit of prosecution cases, where a defendant is charged with multiple violations of a single statute, we inquire whether the Legislature intended punishment for the entire course of conduct or for each discrete act." State v. DeGraff , 2006-NMSC-011, ¶ 32, 139 N.M. 211, 131 P.3d 61 (alteration, internal quotation marks, and citation omitted). "This analysis requires courts to determine the unit of prosecution intended by the Legislature by employing a two-part test, both parts of which are concerned with legislative intent." State v . Swick , 2012-NMSC-018, ¶ 33, 279 P.3d 747. "First, courts must analyze the statute at issue to determine whether the Legislature has defined the unit of prosecution." Id. If the statute does not define the unit of prosecution, "then we move to the second step, in which we determine whether a defendant's acts are separated by sufficient ‘indicia of distinctness’ to justify multiple punishments under the same statute." Bernal , 2006-NMSC-050, ¶ 14, 140 N.M. 644, 146 P.3d 289.
{10} Section 30-3-5(A) defines "aggravated battery" as "the unlawful touching or application of force to the person of another with intent to injure that person or another." The statutory language does not specify a unit of prosecution. This Court acknowledged as much in State v . Mares , 1991-NMCA-052, ¶ 24, 112 N.M. 193, 812 P.2d 1341, when we evaluated allegations of multiple aggravated batteries against a single victim. Mares relied on Herron v . State , 1991-NMSC-012, 111 N.M. 357, 805 P.2d 624, where our Supreme Court analyzed the language of the criminal sexual penetration statute and "held that the statute did not ‘punish separately each penetration occurring during a continuous attack absent proof that each act of penetration is in some sense distinct from the others.’ " Mares , 1991-NMCA-052, ¶ 24, 112 N.M. 193, 812 P.2d 1341 (quoting Herron , 1991-NMSC-012, ¶ 15, 111 N.M. 357, 805 P.2d 624 ). We expressly adopted the same approach for allegations of multiple batteries, indicating without analysis that the aggravated battery statute did not separately punish each act of unlawful touching occurring during a continuous attack unless the acts are sufficiently distinct. Id.
{11} Although Defendant concedes that the statute does not express a unit of prosecution, he asserts that the unit of prosecution should constitute a single unit of prosecution per victim. Defendant relies on State v. Ramirez , 2018-NMSC-003, ¶ 53, 409 P.3d 902, in which the New Mexico Supreme Court reasoned that "where a statute prohibits the doing of some act to a victim specified by a singular noun, ‘a person’ for example, then ‘the person’ is the unit of prosecution." However, Defendant acknowledges that even if we measure the unit of prosecution in this way, the statute does not "explain how to determine whether or when a person has been the victim of more than one battery." Consequently, it is evident that the unit of prosecution for aggravated battery is ambiguous at the first step of the analysis and, like Mares , resolution of Defendant's double jeopardy challenge turns on whether sufficient indicia of distinctness weigh in favor of separate offenses.
{12} To determine whether a defendant's acts are separated by sufficient indicia of distinctness to justify multiple punishments, we consider the (1) temporal proximity of the acts; (2) location of...
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...from our Supreme Court as requiring us "to engage in an analysis of a defendant's conduct[.]" State v. Phillips , 2021-NMCA-062, ¶ 29 n.1, 499 P.3d 648, cert. granted , 2021-NMCERT-–––– (No. S-1-SC-38910, Nov. 1, 2021). In Sena , the Foster presumption was rebutted because the facts of the ......
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...themself from a defendant during an attack with different weapons as an intervening event." State v. Phillips, 2021-NMCA-062, ¶ 14, 499 P.3d 648; see also State v. DeGraff, 2006-NMSC-011, ¶ 139 N.M. 211, 131 P.3d 61 (finding an intervening event between an aggravated burglary and subsequent......