NMSC: Legislative Purpose Is Important in Double Jeopardy Analysis

In State v. Benally, the New Mexico Supreme Court looked at whether a defendant’s two convictions for possession of a weapon by a prisoner violated his double jeopardy rights. While affirming the court of appeals opinion vacating one of the convictions, it emphasized the importance of legislative purpose in the analysis.

Background

The facts of this case are simple enough. The defendant was incarcerated. An inspection of his cell turned up a makeshift knife and a sharpened mop handle. He was convicted of two counts of being a prisoner in possession of a deadly weapon (one for each weapon). Each count carried a nine year sentence and an eight year habitual offender enhancement, resulting in a total sentence of 34 years.

The court of appeals affirmed. It rejected the defendant’s argument that the evidence was not sufficient to support his conviction, but held that there had been a double jeopardy violation. The Supreme Court granted certiorari as to the double jeopardy issue only.

Analysis

This case is what is known as a “unit of prosecution” double jeopardy case. The defendant was convicted of two counts of the same offense, one for each weapon. The question in such cases is whether the legislature intended the entire course of conduct to be a single count, or for each incident to be a separate count. If the legislature only intended one count, the defendant’s double jeopardy rights were violated by the two convictions.

Our courts analyze unit of prosecution cases with a two-step inquiry. First, the courts ask whether the legislature clearly defined the unit of prosecution. If so, the court follows the statutory language and the inquiry is done. If not, the court proceeds to step two, applying the “rule of lenity” to construe the statute in favor of the defendant. In other words, doubt is resolved against turning a single incident into multiple counts. Viewed in that light, the court then asks whether the acts were sufficiently distinct to justify multiple counts.

Here, the statute at issue was Section 30-22-16, possession of a deadly weapon by a prisoner. Section 30-22-16 provides that “Possession of deadly weapon or explosive by prisoner in lawful custody consists of any inmate . . . possessing any deadly weapon or explosive substance. Whoever commits possession of deadly weapon or explosive by prisoner is guilty of a second degree felony.” A deadly weapon is “any weapon which is capable of producing death or great bodily harm, including but not restricted to any types of daggers . . . and all such weapons with which dangerous cuts can be given, or with which dangerous thrusts can be inflicted.”

The Intended Unit of Prosecution Cannot Be Determined

The state, defendant, and court of appeals had all concluded that the statutory language was ambiguous as to the unit of prosecution. In particular, the use of “any” in the phrase “any deadly weapon” made it unclear whether the statute was meant to punish offenders separately for each weapon or once for each class of weapon. The Supreme Court agreed.

The Court looked to legislative purpose to try to resolve the ambiguity. The purpose of this law was to protect prison inmates and staff from the danger of assaults by armed prisoners. The State argued that this purpose was best served by multiple punishments; otherwise, prisoners would stockpile all weapons with one prisoner. The Court rejected this theory, noting there was no evidence to support it.

The Court then examined the quantum of punishment. Here, the defendant argued that the size of the punishment–nine years for possession of a single weapon–was sufficient to deter a prisoner from possessing multiple weapons. The Court noted that in many cases, this punishment would be greater than the sentence for actually using the weapon. In response, the State argued that the punishment reflected the gravity of the offense.

The Court viewed neither argument as conclusive. Since it could not determine the legislature’s intended unit of prosecution, the rule of lenity applied, and the defendant could not be charged for two counts unless the counts were sufficiently distinct.

The Possessions Were Not Sufficiently Distinct to Support Two Convictions

To determine whether the defendant’s possession of the two weapons was sufficiently distinct, the court looked a evidence of (1) the relative timing of Defendant’s gaining possession of the two weapons, (2) the spacing between locations of the weapons Defendant possessed, (3) the qualities or nature of the weapons themselves, and (4) the results of Defendant’s conduct. This was mostly straightforward. There was no evidence about the timing. The weapons were within arms reach of one another. And the weapons, both essentially makeshift knives, were similar.

The most difficult factor was the fourth one: the results of the conduct. The defendant had never used the weapons. Nevertheless, the State argued that possession of each new weapon increased risk to everyone, contrary to the purpose of the statute. The Court appeared to agree with this argument in principle. But because nothing in the circumstances of this case suggested that the possession of two weapons posed a greater risk than just one, it declined to find the conduct sufficiently distinct to support multiple counts. Affirming the court of appeals, it remanded for one of the counts to be vacated.

The Court’s opinion largely follows the court of appeals opinion, which it affirms. One might ordinarily expect the Court not to have taken this case. The Court provided something of an explanation, stating that the court of appeals seemed to suggest that legislative purpose was not important to the indicia of distinctiveness analysis–a suggestion the Court held was in error. And, indeed, analysis of the legislative purpose is one of the main departures from the lower court opinion. Attorneys already knew to make legislative purpose arguments; this opinion should prevent future arguments that the legislative purpose is not important.

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