State v. Silvas

Decision Date05 February 2015
Docket Number34,271.
Citation343 P.3d 616,2015 NMSC 006
PartiesSTATE of New Mexico, Plaintiff–Petitioner, v. Donnie SILVAS, Defendant–Respondent.
CourtNew Mexico Supreme Court

Gary K. King, Attorney General, Ann M. Harvey, Assistant Attorney General, Martha Anne Kelly, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Jorge A. Alvarado, Chief Public Defender, B. Douglas Wood, III, Assistant Appellate Defender, Santa Fe, NM, for Respondent.


BOSSON, Justice.

{1} A jury convicted Defendant Donnie Silvas of 1) trafficking a controlled substance by possession with intent to distribute pursuant to NMSA 1978, Section 30–31–20(A)(3) (2006), and 2) conspiracy to commit the same crime pursuant to NMSA 1978, Section 30–28–2(A) (1979). Notably, both charges stemmed from one point in time and a single sale of drugs by Defendant. The Court of Appeals overturned the conspiracy conviction based on an expanded use of a judicial presumption, of somewhat ancient origin, known as Wharton's Rule. While we agree with the decision to reverse the conspiracy charge, we do so on a different ground. As explained herein, we conclude that double jeopardy is the better analysis, and in so doing we expressly discourage any future expansion of Wharton's Rule beyond its original contours.


{2} Defendant, under suspicion of selling illegal drugs out of his motel room in Lordsburg, New Mexico, was placed under surveillance by a federal Border Operations Task Force, acting jointly with the Lordsburg Police Department. In the course of that surveillance, on March 14, 2008, Lordsburg police officer Rodney Plowman saw a white car leaving Defendant's motel and followed it. Officer Plowman eventually pulled the car over for a traffic violation in front of the Budget Inn. As soon as the vehicle stopped, Patricia Ortega, a passenger, ran from the car into her room at the Inn, where she placed two small packages containing methamphetamine in a desk drawer.

{3} Ortega ultimately let Officer Plowman into her motel room and gave him the two packages. When subsequently interviewed about the source of the drugs, Ortega admitted to her purchase from Defendant. Three days later, acting under a warrant, Lordsburg police officers arrested Defendant and charged him with trafficking a controlled substance by possession with intent to distribute, and conspiracy to commit the same crime, both charges stemming from his sale to Ortega. A jury convicted Defendant on both charges.

Court of Appeals Opinion

{4} On appeal, our Court of Appeals reversed the conspiracy charge on the basis that it violated Wharton's Rule. For purposes of clarity, we provide a brief explanation. “Wharton's Rule provides an exception to the general rule that conspiracy and the substantive offense planned by the conspirators are separate crimes.” Johnson v. State, 587 A.2d 444, 452 (Del.1991). The rule states that “an agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the particular crime is of such a nature as to necessarily require the participation of two persons for its commission.” State v. Silvas, 2013–NMCA–093, ¶ 31, 310 P.3d 621 (citation omitted), cert. granted, 2013–NMCERT–009, 311 P.3d 452. Historically, the prototypical Wharton's Rule offenses were adultery, incest, bigamy, and dueling, crimes which usually involve an agreement between two persons for their commission. Iannelli v. United States, 420 U.S. 770, 782, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).

{5} Wharton's Rule serves as a kind of judicial presumption that precludes separate punishment of the conspiracy in the absence of clear legislative intent to punish both crimes. Id. at 782, 95 S.Ct. 1284. More specifically, Wharton's Rule applies:

(1) when the parties to the agreement are the only persons who participate in the offense and the immediate consequences of the crime rest only on themselves; and (2) when the agreement that attends the substantive offense does not appear likely to pose the sort of threat to society that the law of conspiracy was designed to avert.

Silvas, 2013–NMCA–093, ¶ 32, 310 P.3d 621 (citation omitted). “The most important factor ... is that concerted action must be logically necessary to the substantive offense. This is similar to saying that conspiracy and the substantive offense are the same crime.” Id. (omission in original) (internal quotation marks and citation omitted).

{6} Applying Wharton's Rule to the present case, our Court of Appeals held that [t]he charge of trafficking with intent to distribute methamphetamine required the participation of the same two people, Defendant and Ortega, who were also involved in any alleged conspiracy to sell the same drugs.” Id. ¶ 38. Continuing, the Court explained that [t]he agreement between Defendant and Ortega to sell and purchase the methamphetamine was logically necessary for the transferring of the methamphetamine from one to another.” Id. ¶ 40. Accordingly, the Court of Appeals concluded in the particular context of this case that Wharton's Rule prohibited Defendant from being convicted for both conspiracy and possession with intent (trafficking). Id. ¶ 41.

{7} As we stated earlier, Wharton's Rule is of somewhat ancient origins. It “emerged at a time when the contours of the law of conspiracy were in the process of active formulation.” Iannelli, 420 U.S. at 781, 95 S.Ct. 1284. Since then, our double jeopardy jurisprudence has evolved in a way that now covers most, if not all, circumstances in which Wharton's Rule could theoretically be applied. When the Court of Appeals concluded, describing Wharton's Rule, that “conspiracy and the substantive offense are the same crime” because “concerted action [was] logically necessary to the substantive offense,” Silvas, 2013–NMCA–093, ¶ 32, 310 P.3d 621, it could well have been describing a multiple-punishment, double-description analysis under principles of double jeopardy. Accordingly, rather than expand Wharton's Rule beyond its original context, we proceed to analyze this case under double jeopardy principles and reach the same result.


{8} Double jeopardy protects against multiple punishments for the same offense. See State v. Montoya, 2013–NMSC–020, ¶ 23, 306 P.3d 426. Cases involving multiple violations of a single statute are referred to as “unit-of-prosecution cases, while cases involving violations of multiple statutes are “double-description” cases. Id. ¶ 30. In double-description cases like the one before us, [t]he Supreme Court has fashioned a double jeopardy analysis in which the polestar guiding courts is the [L]egislature's intent to authorize multiple punishments for the same offense.” Swafford v. State, 1991–NMSC–043, ¶ 9, 112 N.M. 3, 810 P.2d 1223.

{9} This Court has long recognized a two-part test for analyzing double description cases. First, the defendant's conduct must be unitary. Id. ¶ 25. If the conduct is not unitary, the analysis ends and double jeopardy does not apply. Id. If the conduct is unitary, however, then the second part of the analysis is to determine if the Legislature intended to punish the offenses separately. Id. “Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.”Id.

Unitary Conduct

{10} Conduct is unitary when not sufficiently separated by time or place, and the object and result or quality and nature of the acts cannot be distinguished. Id. ¶ 28. Although the parties did not argue this issue below, double jeopardy can be raised at any time. NMSA 1978, § 30–1–10 (1963). At oral argument before this Court, the State conceded that Defendant's conduct was unitary, and for good reason. As we shall see, the State's theory of the case as reflected in its presentation to the jury focused solely on the exact moment when Defendant and Ortega exchanged drugs for money. The State used evidence of that single moment in time to prove both Defendant's possession with intent and Defendant's conspiratorial agreement with Ortega to commit that same crime. Therefore, the two crimes, as charged by the State in this particular case, were based on one illegal act, making the charged conduct not only unitary, but identical.

Legislative Intent to Punish Both Crimes Separately

{11} Given unitary conduct, we now inquire whether Defendant has been punished twice for the same offense, and if so, whether the Legislature intended that result. To determine legislative intent, we look first to the language of the statute. State v. Swick, 2012–NMSC–018, ¶ 11, 279 P.3d 747. [W]here the [L]egislature has explicitly authorized multiple punishment the judicial inquiry is at an end, [and] multiple punishment is authorized and proper.” State v. Gutierrez, 2011–NMSC–024, ¶ 50, 150 N.M. 232, 258 P.3d 1024 (first and third alterations in original) (quoting Swafford, 1991–NMSC–043, ¶ 11, 112 N.M. 3, 810 P.2d 1223). Absent a clear intent for multiple punishments, we apply the Blockburger test. Swafford, 1991–NMSC–043, ¶ 30, 112 N.M. 3, 810 P.2d 1223. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

{12} Blockburger provides that “the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. 180. If the Blockburger test shows that one statute is subsumed within the other, then the analysis ends and the statutes are considered the same for double jeopardy purposes. Swafford, 1991–NMSC–043, ¶ 30, 112 N.M. 3, 810 P.2d 1223. If one statute requires proof of a fact that the other does not, then the Legislature is presumed to have intended a separate punishment for each statute without offending principles of double jeopardy. Swick, 2012–NMSC–018, ¶ 13, 279 P.3d 747.

{13} “That presumption, however, is not conclusive and it may be overcome by other indicia of legislative...

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