NMSC Addresses Double Jeopardy Concerns in Shooting from a Vehicle Law

I am a little behind on blogging so I’m only now getting around to the two cases the Court published on August 3. In State v. Porter, the New Mexico Supreme Court once again revisited the double jeopardy issues that so often arise in connection with the shooting from a motor vehicle statute, reversing a pair of convictions on double jeopardy grounds.

The facts in this case are simple. The defendant stopped his car and pointed a gun at the victim. The victim threw a beer bottle at defendant, who fired a single shot at the victim. The bullet did not hit anyone, and the defendant drove away. The defendant was subsequently convicted of aggravated assault with a deadly weapon and shooting from a motor vehicle. The Court of Appeals affirmed, and the Supreme Court granted certiorari to hear the appeal.

Double Jeopardy Law in New Mexico

On appeal, the defendant argued that the convictions violated the Double Jeopardy clause. Both the U.S. and New Mexico Constitutions have Double Jeopardy Clauses which prohibit the courts from imposing multiple punishments for the same offense. There are numerous ways the clause can be violated; here, the issue is “double description,” where the defendant is convicted under multiple statutes for the same conduct. The clauses serve as a counterweight against the fact that it is often easy to find multiple statutes to charge a defendant for any particular set of behavior.

In a double description case, the Court must determine whether the underlying conduct for the two convictions was the same and, if so, whether the Legislature intended multiple punishments for the conduct. Here, there was no question that the conduct was unitary, so the only issue was whether multiple punishments were intended.

To determine legislative intent, the Court looks at the language of the statute. A statute can expressly say that multiple punishments are allowed, but the statutes in this case did not. Accordingly, the Court resorted to case law setting out canons of construction to discern legislative intent from the language of the statute: in particular, the Blockburger test.

The Blockburger test compares the convictions to determine if one of the statutes requires proof of a fact which the other does not. If so, the Legislature is presumed to intend multiple punishments. In some cases, this can be done by looking only at the statutes (a method known as the “strict elements” test). In others, such as where the statutes are vague, unspecific, or could result in convictions based on alternative conduct, the Court must review the entire record to determine the State’s legal theories, then decide whether one of the crimes was subsumed in the other. Here, sinceu the statutes allowed convictions based on alternative conduct, the Court had to examine the State’s legal theories.

The State’s Legal Theories in this Case

Because assault, battery, and murder frequently involve shooting to or from a car, the Court has frequently grappled with whether convictions under these statutes violate the Double Jeopardy clause. Unfortunately, no bright line rule has emerged. As this case demonstrates, the analysis is frequently very fact-specific. Here, the Court had to look to the charging documents, the jury instructions, and the arguments made at trial to determine whether the convictions violated the Double Jeopardy clause.

The State’s theory on the assault conviction was that the defendant “did assault or strike” the victim with a handgun. Viewing the charging documents and jury instructions, the Court was unable to determine whether the State’s theory was based on assault or battery. In either case, however, it was based on the same use of force (shooting at the victim).

The State’s theory on the shooting from a vehicle conviction was that the defendant willfully and unlawfully discharged a firearm from a vehicle with reckless disregard for the safety of another person. Looking to the State’s presentation at trial, the Court concluded that the only other person identified by the State was the victim.

Based on this view of the State’s theories, the Court proceeded to the Double Jeopardy analysis. The State argued that the offenses were different because the statutes had subtly different intent requirements: reckless disregard for shooting from a vehicle, and belief that he was about to intrude upon the victim’s bodily integrity by touching or applying force to the victim for aggravated assault.

The Court quickly rejected the State’s argument. Both charges required the jury to find that the defendant knew he was putting the victim’s safety at risk and that he disregarded that risk when he fired the shot. Accordingly, there was no “substantive difference” between the mens rea requirements of the two offenses. The Court also noted that both crimes were general intent crimes, requiring proof only of a “general criminal intent,” not the specific, detailed types of intent the State suggested were required.

Lastly, the Court dealt with an ambiguity that arose from the fact that the assault charge could be violated by either a threat or an actual battery. Even the State’s conduct at trial did not clarify which theory the State had pursued. Applying the canons of construction, the Court determined that the Double Jeopardy clause prohibited the defendant from being convicted of both offenses in this case.

Court of Appeals Reversed

In the end, the Court remanded for the district court to vacate one of the two charges. It noted, however, that it is possible, in an appropriate case, to find that a defendant violated both statutes without violating the Double Jeopardy Clauses. Justice Nakamura wrote separately to concur, providing an only slightly different analysis that reached the same result.

The case appears fact-specific and not likely to be generally useful for future cases, with one possible exception: it is now clear that State v. Sosa, which the Court of Appeals had relied on to affirm, had been impliedly overruled by subsequent Supreme Court cases.

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