State v. Powers

• Decision Date: 23 July 1998
• Docket Number: 17963,Nos. 17751,s. 17751
• Citation: 1998 NMCA 133,967 P.2d 454,126 N.M. 114
• Parties: , 1998 -NMCA- 133 STATE of New Mexico, Plaintiff-Appellee, v. Gregory Lawrence POWERS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 454

967 P.2d 454

126 N.M. 114, 1998 -NMCA- 133

STATE of New Mexico, Plaintiff-Appellee, v. Gregory Lawrence POWERS, Defendant-Appellant.

Nos. 17751, 17963.

Court of Appeals of New Mexico.

July 23, 1998.

Certiorari Granted, No. 25, 316,

Sept. 11, 1998.

Tom Udall, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, for Appellee.

Phyllis H. Subin, Chief Public Defender, David Henderson, Assistant Appellate Defender, Santa Fe, for Appellant.

OPINION

ARMIJO, J.

¶1 Defendant appeals the judgment and sentence entered after a jury found him guilty of battery, false imprisonment, and attempted criminal sexual penetration (CSP) in the second degree. Defendant was previously held in contempt of court by a domestic relations court for violating an order prohibiting domestic violence. Defendant asserts that his subsequent prosecution violates the prohibition against double jeopardy found in the Fifth Amendment to the United States Constitution and Article II, Section 15 of the New Mexico Constitution. We address three issues: (1) whether a jurisdictional exception to the double jeopardy prohibition applies in this case; (2) if not, whether the constitutional protection against double jeopardy bars a second prosecution for other crimes arising from the same incident, and involving many of the same facts, which led to Defendant's conviction for contempt; and (3) whether the constitutional protection against double jeopardy bars further prosecution for the kidnapping or false imprisonment alleged in Count 1 when the jury returned a verdict finding Defendant guilty of false imprisonment after the trial court orally declared a mistrial on that count.

¶2 Only our discussion of the second issue warrants publication. In this opinion, we reverse Defendant's conviction for battery based on the federal approach to double jeopardy articulated by Justice Scalia in United States v. Dixon, 509 U.S. 688, 698-700, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), and we affirm Defendant's conviction for attempted CSP in the second degree based on the independent grounds provided by our state constitution. In a separate memorandum opinion filed concurrently with this opinion, we have determined that a jurisdictional exception to the Double Jeopardy Clause does not apply in this case, and the State may retry Defendant on the charges of kidnapping and the lesser included offense of false imprisonment.

I. BACKGROUND

A. The Incident of August 23, 1994

¶3 On August 2, 1994, the victim obtained a temporary restraining order from the domestic relations court under the Family Violence Protection Act, NMSA 1978, §§ 40-13-1 to -8 (1987, as amended through 1993), after Defendant allegedly assaulted her with a screwdriver. After a hearing on August 16, 1994, the domestic relations court entered an Order Prohibiting Domestic Violence (OPDV).

¶4 On August 23, 1994, while the victim was delivering auto parts to a car dealership for her employer, she spotted Defendant following her. As she arrived, Defendant drove up beside her, opened the door of her truck, and ordered her to get out. When she hesitated, Defendant grabbed her and held something to her back or neck. The victim yelled to some people nearby to call the police, telling them that she had a restraining order on Defendant. Defendant pushed her into the passenger side of his car. He grabbed her by the leg and climbed through the passenger side of his car, pulling her leg and hair.

¶5 At this point, several men who worked at the dealership came out to investigate the disturbance. The victim was screaming that Defendant would kill her. One of the men attempted to talk to Defendant and unsuccessfully tried to remove the keys from the ignition. Defendant started the car and backed out of the parking lot very rapidly. Both doors of the car remained open. Two of the men pulled on the driver's door, hoping to keep the car from moving, but the door bent back on its hinges. The car ran over a small embankment, twisting the driver's door upward "like a flag."

¶6 As Defendant's vehicle accelerated down the street, the victim's feet were dragged along the pavement for a distance. The car door bruised her leg before she was able to pull it inside. Several men jumped into a car and began to chase Defendant's damaged vehicle across town through traffic at high speeds. Eventually, they gave up the chase because it was too dangerous.

¶7 Defendant drove the victim to a remote park area where he ordered her to get out of the car. He then ordered her to take off her clothes and removed some of them himself. He told her to lie down, started to remove his pants, and asked her if she "wanted" him. At this point, Defendant reportedly heard the sound of a nearby car door slamming and told the victim to put her clothes back on.

¶8 Defendant ordered the victim to get back into the car, and he then drove toward the city of Bernalillo. The victim testified at Defendant's criminal trial that Defendant threatened her by telling her to drop the OPDV or he would kill her. Once in Bernalillo, he ordered her to call the Albuquerque police, her place of work, and the car dealership to advise them that the incident at the car dealership was all a "practical joke." The victim testified that she made the calls because she feared for her life. After making the calls, Defendant drove her back to his apartment. He repeated his threat to kill her if she did not drop the OPDV. Defendant eventually released the victim. He was arrested outside his apartment later that day for violating the terms of the OPDV.

B. The Contempt Proceeding

¶9 On August 24, 1994, the day after Defendant was arrested, the domestic relations court held a hearing regarding the violation of the OPDV. Both Defendant and the victim appeared pro se and testified under oath; there were no other witnesses present, and the district attorney was not involved. The victim recounted the attack at the car dealership and the events that followed. Defendant admitted that the incident had occurred but explained that he had just wanted to take the victim in his car and talk to her about his suspicion that their child was being abused. Defendant also offered a different account of what happened at the park area; he did not admit to forcing the victim to disrobe there.

¶10 After hearing from both parties, the domestic relations court stated to Defendant: "I don't know if they're going to charge you with a felony or not, but I suspect they will be. [T]hat's not my responsibility; that's up to the District Attorney's Office." The domestic relations court then held Defendant in contempt of court and entered a minute order stating as follows: "[Defendant] having admitted to several violations of the [OPDV, Defendant] is hereby adjudged in contempt of the Court's [OPDV] and is hereby ordered to serve 90 days in the Bernalillo County Detention Center...."

¶11 The District Attorney's Office, which was not given notice of the contempt hearing or made a party to that proceeding, filed a grand jury indictment against Defendant on August 31, 1994. The indictment charged Defendant with kidnapping (Count 1), attempt to commit CSP in the second degree (Count 2), and aggravated battery (Count 3). On April 5, 1995, Defendant moved to dismiss these charges on grounds that they placed him in double jeopardy in violation of the Fifth Amendment of the United States Constitution and Article II, Section 15 of the New Mexico Constitution, because he already had been convicted and punished for the same acts as a result of the contempt proceeding in domestic relations court. The trial court denied the motion. After a series of extensions, Defendant was tried before a jury in July 1996. The jury found him guilty of battery, false imprisonment, and attempted CSP in the second degree. Defendant filed two appeals which were consolidated by order of this Court.

II. DISCUSSION

¶12 Because jeopardy attaches to the nonsummary criminal contempt proceedings, see Dixon, 509 U.S. at 696, 113 S.Ct. 2849, we must examine whether Defendant's subsequent prosecution for kidnapping, false imprisonment, attempted CSP, and battery was barred by the constitutional protection against double jeopardy. The Double Jeopardy Clauses of the United States Constitution and the New Mexico Constitution provide that no person shall "be twice put in jeopardy" for the same offense. U.S. Const. amend. V; N.M. Const. art. II, § 15. These provisions protect against successive prosecutions for the same offense after a defendant has been acquitted or convicted; they also protect against multiple punishments for the same offense. See Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)). In the context of successive prosecutions, the United States Supreme Court held in Dixon that the scope of the Fifth Amendment's prohibition on double jeopardy is to be measured exclusively by the "same elements" test articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), thereby overruling the more expansive "same conduct" test announced in Grady v. Corbin, 495 U.S. 508, 521-22, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). See Dixon, 509 U.S. at 703-04, 113 S.Ct. 2849 (opinion of Justice Scalia, in which Justice Kennedy joined), 713-14, 113 S.Ct. 2849 (opinion of Justice Rehnquist, in which Justice O'Connor and Justice Thomas joined).

¶13 In the present case, Defendant asserts that Article II, Section 15 of the New Mexico Constitution requires the application of the "same conduct" test articulated in Grady, in addition to the "same elements" inquiry. Under the "same conduct" test, Defendant contends that the contempt proceeding in domestic relations court serves as a bar to further prosecution for any crimes arising from the same conduct for which he was previously prosecuted in that...