State v. Ben

362 P.3d 180

STATE of New Mexico, Plaintiff–Appellee,

v.Ferlin BEN, Defendant–Appellant.

No. 33,921.

Court of Appeals of New Mexico.

Oct. 5, 2015.

Certiorari Denied, Nov. 5, 2015, No. 35,550.

Hector H. Balderas, Attorney General, Santa Fe, NM Kenneth H. Stalter, Assistant Attorney General, Albuquerque, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender, Karl Erich Martell, General Counsel, Santa Fe, NM, for Appellant.

OPINION

VANZI, Judge.

{1} At issue in this appeal is a unique application of the constitutional bar against retrial after acquittal. Defendant Ferlin Ben was charged and convicted in a nonjury trial in magistrate court for driving while intoxicated (DWI), contrary to NMSA 1978, Section 66–8–102 (2010). Defendant's conviction was expressly based on the "per se" provision of Subsection (C)(1), which is one of two statutory alternative means of committing the single offense of DWI. See State v. Lewis, 2008–NMCA–070, ¶ 27, 144 N.M. 156, 184 P.3d 1050.

{2} After a de novo appeal to the district court, Defendant was subsequently acquitted of the per se violation and convicted of the alternative provision in Subsection (A), which requires a finding of impairment to the slightest degree. Defendant now contends that double jeopardy and jurisdictional principles prevented the State from arguing impaired DWI to the jury after the magistrate court failed to convict him on that theory in the first trial. Unpersuaded, we affirm.

BACKGROUND

{3} The scant record from the magistrate court sets forth the following facts and allegations, which, for our purposes, are not in dispute. On September 19, 2013, state police stopped Defendant after observing multiple traffic violations. Defendant admitted to drinking "two beers," performed poorly on field sobriety tests, and later registered a breath alcohol concentration (BAC) of .08. The State charged Defendant in the McKinley County Magistrate Court with several traffic offenses, including misdemeanor DWI. That offense is committed when a person drives a vehicle with a BAC of .08 or higher (a per se violation), see § 66–8–102(C)(1), or, in the alternative, when a person drives while "under the influence" of intoxicating liquor or drugs (an impaired to the slightest degree violation), see § 66–8–102(A).

{4} After a nonjury trial, the court found Defendant guilty of DWI. Although the criminal complaint asserted violations of both subsections of the DWI statute, the court specified in its judgment and sentence that Defendant violated Subsection (C)(1), which is the per se violation. The judgment and sentence did not refer to the impaired DWI provision of Subsection (A).

{5} Defendant sought de novo review in the district court, where, over Defendant's objection, the State alleged both theories of DWI. A jury convicted Defendant of impaired DWI under Subsection (A) but found no violation of per se DWI under Subsection (C)(1). On appeal, Defendant now contends that (1) the magistrate court's silence as to Subsection (A) impliedly acquitted him of impaired DWI, precluding the district court's retrial on that theory according to principles of double jeopardy, and (2) the district court lacked jurisdiction to consider the theory. We review these related contentions de novo. See Victor v. N.M. Dep't of Health, 2014–NMCA–012, ¶ 22, 316 P.3d 213 ; State v. Andazola, 2003–NMCA–146, ¶ 14, 134 N.M. 710, 82 P.3d 77.

DISCUSSION

Double Jeopardy

{6} "All appeals from inferior tribunals to the district courts shall be tried anew in said courts on their merits, as if no trial had been had below, except as otherwise provided by law." NMSA 1978, § 39–3–1 (1955). By its own terms, this statute is necessarily subject to the Constitutions of the United States and New Mexico, which guarantee that no person shall be "twice put in jeopardy" for the same offense.¹ U.S. Const. amend. V ; N.M. Const. art. II, § 15 ; NMSA 1978, § 30–1–10 (1963) ; Ludwig v. Massachusetts, 427 U.S. 618, 631, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976) ; State v. Baca, 2015–NMSC–021, ¶¶ 2, 21, 46, 352 P.3d 1151 (applying double jeopardy retrial principles to a de novo appeal from magistrate court). In this case, jeopardy attached to the nonjury trial in the magistrate court "when the trial judge first start[ed] hearing evidence." Baca, 2015–NMSC–021, ¶ 46, 352 P.3d 1151.

{7} The Double Jeopardy Clause operates to protect an individual from repeated attempts by the state, "with all its resources and power[,]" to secure a conviction, with the consequent anxiety, embarrassment, and undue expense to a defendant that results from retrial. Cnty. of Los Alamos v. Tapia, 1990–NMSC–038, ¶ 16, 109 N.M. 736, 790 P.2d 1017 (internal quotation marks and citation omitted), overruled on other grounds by City of Santa Fe v. Marquez, 2012–NMSC–031, ¶ 25, 285 P.3d 637. In common parlance, the state, upon failing to convict a defendant after a full and fair opportunity to do so "is barred from a second bite of the apple." State v. Orosco, 1982–NMCA–181, ¶ 11, 99 N.M. 180, 655 P.2d 1024 ; see also Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (noting that the United States Supreme Court necessarily affords "finality to a jury's verdict of acquittal—no matter how erroneous its decision" (emphasis omitted)).

{8} On the other hand, there is no constitutional prohibition against retrial after a conviction is set aside, except where the conviction is vacated for insufficient evidence. State v. Lizzol, 2007–NMSC–024, ¶¶ 13–14, 141 N.M. 705, 160 P.3d 886. The distinction between retrial after an acquittal and retrial after a conviction reversed for trial error has historically been justified on various rationales, including the legal fiction of waiver—that a defendant who successfully appeals his conviction for trial error "waives" any objection to a second prosecution, see Trono v. United States, 199 U.S. 521, 530–31, 26 S.Ct. 121, 50 L.Ed. 292 (1905), and the doctrine of continuing jeopardy—that jeopardy terminates upon an acquittal but continues through an appeal and into the subsequent retrial. Justices of Bos. Mun. Ct. v. Lydon, 466 U.S. 294, 308, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) ("Interests supporting the continuing jeopardy principle involve fairness to society, lack of finality, and limited waiver.").

{9} However justified, these principles unquestionably govern our state's two-tier system of de novo appeals from off-record inferior courts, including, of course, the McKinley County Magistrate Court.

A defendant who elects to be tried [d]e novo ... is in no different position than is a convicted defendant who successfully appeals on the basis of the trial record and gains a reversal of his conviction and a remand of his case for a new trial. Under these circumstances, it long has been clear that the [s]tate may reprosecute.

Ludwig, 427 U.S. at 631–32, 96 S.Ct. 2781 ; see also Lydon, 466 U.S. at 309, 104 S.Ct. 1805 ("While technically the defendant is tried again, the second stage proceeding can be regarded as but an enlarged, fact-sensitive part of a single, continuous course of judicial proceedings during which, sooner or later, a defendant receives more—rather than less—of the process normally extended to criminal defendants in this nation." (alteration, internal quotation marks, and citation omitted)). Thus, having been convicted —and not acquitted—of DWI in the magistrate court, Defendant was in the same position as any individual who successfully appeals his conviction for trial error. "Under these circumstances, it has long been clear that the [s]tate may reprosecute."

Lydon, 466 U.S. at 305, 104 S.Ct. 1805. To escape this conclusion, Defendant divides the single offense of DWI into its alternative theories, contending that his conviction in the first trial on one theory of DWI (the per se theory) necessarily constitutes an implied acquittal on the alternative theory on which no conviction was entered (the impaired DWI theory).

{10} The genesis of the modern implied acquittal doctrine is Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). In Green, the United States Supreme Court held that a verdict convicting a defendant of a lesser included offense of second degree murder, but silent as to the greater offense of first degree murder, constituted an implied acquittal of the greater offense, prohibiting retrial. Id. at 190–91, 78 S.Ct. 221. In brief, the Court believed the case was no different, for double jeopardy purposes, "than if the jury had returned a verdict which expressly read: ‘We find the defendant not guilty of murder in the first degree but guilty of murder in the second degree.’ " Id. at 191, 78 S.Ct. 221 ; see also Price v. Georgia, 398 U.S. 323, 329, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970) ("[T]his Court has consistently refused to rule that jeopardy for an offense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunity to return a verdict on the greater charge." (footnote omitted)).

{11} Our cases have neither read Green as broadly as Defendant suggests nor applied Green outside the context of lesser included offenses. See State v. Torrez, 2013–NMSC–034, ¶ 13, 305 P.3d 944 (citing with approval the observation that "courts have refused to imply an acquittal unless a conviction of one crime logically excludes guilt of another crime" (alteration, internal quotation marks, and citation omitted)); O'Kelley, 1991–NMCA–049, ¶ 14, 113 N.M. 25, 822 P.2d 122 ("An implied acquittal generally occurs when the jury is instructed to choose between a greater and a lesser offense, and chooses the lesser."). "Only where the jury is given the full opportunity to return a verdict either on the greater or alternatively on the lesser offense does the doctrine of implied acquittal obtain." O'Kelley, 1991–NMCA–049, ¶ 16, 113 N.M. 25, 822 P.2d 122. In fact, the United States Supreme Court itself has...