State v. Godoy

STATE OF NEW MEXICO, Plaintiff-Appellee, v. ALI GODOY, Defendant-Appellant.

Docket No. 30,407

COURT OF APPEALS OF THE STATE OF NEW MEXICO

Filing Date: May 18, 2012

Opinion Number: ____________

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Kenneth H. Martinez, District Judge

Gary A. King, Attorney General

Olga Serafimova, Assistant Attorney General

Santa Fe, NM

for Appellee

Jacqueline L. Cooper, Chief Public Defender

Tania Shahani, Assistant Appellate Defender

Santa Fe, NM

for Appellant

OPINION

CASTILLO, Chief Judge.

{1} Defendant appeals from his conviction for possession of cocaine. He argues that imprecision in the jury instructions created error, that the evidence was insufficient to convict, and that the due process afforded him at the sentencing hearing was inadequate. We affirm.

BACKGROUND

{2} On November 13, 2007, a regional drug task force executed a search warrant at the residence of Defendant. Officers approached Defendant's car after he pulled into the driveway. Humberto Martinez arrived soon after in another vehicle and pulled up behind Defendant. Defendant was ordered to step out of his car, and when he did, officers saw a plastic bag on the front seat that had the appearance of crack cocaine. Without identifying the substance, Defendant stated that it was for his "personal use." Officers also searched the vehicle of Martinez, and in the trunk they found a baseball glove wrapped around about fifty-five grams of powder cocaine and a one-pound bag of marijuana. Martinez stated to officers, "You got me." At trial, Martinez, who pleaded guilty to trafficking cocaine in exchange for a modified sentence, testified that the cocaine in his trunk belonged to Defendant but that he agreed to transport the drugs to Defendant's house and take the blame if they were caught. A search of Defendant's house also turned up a scale and a cigarette case with trace amounts of powdery residue in it.

{3} Defendant was charged with trafficking, conspiracy, and possession of drug paraphernalia. He was not convicted of trafficking or conspiracy, but a jury found him guilty of a stepped-down count of possession of cocaine, as well as possession of drug paraphernalia. Defendant was sentenced to eighteen months on each conviction, and his sentence for possession of cocaine was enhanced by eight years because he had at least three previous felony convictions within the past ten years. Defendant filed a timely appeal only on the cocaine possession charge and the enhanced sentence. We take his arguments in turn.

DISCUSSION

I. Jury Instructions and Unanimity

{4} Defendant first contends that the court failed to clarify imprecise jury instructions, thereby neglecting to instruct the jury that any conviction for the stepped-down charge of possession had to be based on the same substance considered by the jury for the trafficking offense. "The standard of review we apply to jury instructions depends on whether the issue has been preserved. If the error has been preserved we review the instructions for reversible error. If not, we review for fundamental error." State v. Benally, 2001-NMSC-033, ¶ 12, 131 N.M. 258, 34 P.3d 1134 (citation omitted). In the case before us, defense counsel did not object to the jury instruction, so we review for fundamental error. "The doctrine of fundamental error applies only under exceptional circumstances and only to prevent a miscarriage of justice." State v. Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633. Fundamental error occurs when a court fails to instruct a jury on an essential element. See State v. Sutphin, 2007-NMSC-045, ¶ 16, 142 N.M. 191, 164 P.3d 72. A reviewing court "should exercise this discretion very guardedly, and only where some fundamental right has been invaded, and never in aid of strictly legal, technical, or unsubstantial claims[.]" State v. Cunningham, 2000-NMSC-009, ¶ 12, 128 N.M. 711, 998 P.2d 176 (internal quotation marks and citation omitted). Defendant does not complain that an essential element was excluded. In reviewing for fundamental error in this case, we must determine "whether a reasonable juror would have been confused or misdirected by the jury instruction." Id. ¶ 14(internal quotation marks and citation omitted).

{5} Defendant argues that the two substances at issue—crack cocaine found in his car and powder cocaine found in Martinez's car—created jury confusion and that a conviction on the lesser charge of possession was appropriate only if each juror arrived at that decision after entertaining a reasonable doubt about trafficking of the same substance. In other words, Defendant argues that some jurors could have found that Defendant should be acquitted of trafficking based on the cocaine found in Martinez's trunk but was guilty of a possession charge based on the crack cocaine found in his own car. Defendant cites no authority for the proposition that jury unanimity was required to rely on the same evidence—here, either the crack cocaine in Defendant's car or the powder cocaine in Martinez's car—when evaluating the greater and lesser offenses, and we find no legal authority for that argument. Where a party cites no authority to support an argument, we may assume no such authority exists. In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984).

{6} In fact, New Mexico case law contradicts Defendant's argument and supports the State's contention that, where alternative theories of guilt are put forth under a single charge, jury unanimity is required only as to the verdict, not to any particular theory of guilt. The New Mexico Supreme Court has stated that "a jury's general verdict will not be disturbed in such a case where substantial evidence exists in the record supporting at least one of the theories of the crime presented to the jury." State v. Salazar, 1997-NMSC-044, ¶ 32, 123 N.M. 778, 945 P.2d 996. New Mexico's uniform jury instructions "either refer generally to a requirement of jury unanimity or require only that the jury agree on a verdict. No provision explicitly or implicitly requires jury unanimity on an underlying theory[.] Id. ¶ 34 (citation omitted). In Salazar, the state put forth two theories of first degree murder, and the defendant was convicted under a general jury form that did not indicate which theory the jurors based their decision on. Id. ¶ 14. Considering the additional issue of a step-down to a lesser offense, the Court noted: "The jury is not required to agree unanimously on one alternative theory of that lesser offense." Id. ¶ 36. The Court concluded: "It would make little sense to insist that somehow depraved mind murder differs significantly in blameworthiness, depravity, or culpability from other theories like deliberate and felony murder with which it is similarly labeled, included, and punished." Id. ¶ 42.

{7} Salazar followed the lead of the United States Supreme Court for the proposition that "common law analyses of due process have not required jury unanimity on a particular theory of the crime charged." Id. ¶ 39. The Court in Salazar relied on Schad v. Arizona, in which the United States Supreme Court stated that "[w]e have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission," because "different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line." 501 U.S. 624, 631-32 (1991) (internal quotation marks and citation omitted). The Court in Schad concluded: "Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." Id. at 632 (internal quotation marks and citation omitted).Justice Scalia, in concurrence, observed that "it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission." Id. at 649.

{8} In the case before us, similar to the murder charge in Salazar, the State brought only one count of trafficking, with only one count of the lesser included offense of possession. Although the State brought two theories of possession—based on the crack cocaine found in Defendant's car or the powder cocaine found in Martinez's vehicle—jury unanimity was required only on the overall verdict, not on either of the State's alternative theories of trafficking or possession. One witness testified that a lab analysis does not distinguish between cocaine in rock form or powder form. Multiple witnesses testified that both forms of cocaine were in quantities large enough to qualify for a count of trafficking, so it is possible that jurors could have derived a step-down verdict of possession from either substance or from both of them.

{9} Defendant also points to State v. Stefani, 2006-NMCA-073, 139 N.M. 719, 137 P.3d 659, to argue that the State should have distinguished specific evidence related to a possession charge from evidence that led to a trafficking conviction. But Stefani involved two separate charges—trafficking by manufacture and possession of drug paraphernalia—and we were concerned there, on remand, with issues of jury confusion and double jeopardy. Id. ¶¶ 30-32. In the case before us, Defendant faced one charge of trafficking and the step-down to possession, with elements that are a subset of the greater charge. And, as stated above, the jury's verdict need not have been parsed between the two forms of cocaine that Defendant had in his car or may have constructively possessed in Martinez's vehicle.

{10} Defendant reaches to a twenty-four-year-old Washington State sexual assault case for the argument that the above cases involving "alternative means" of committing the crime differ from cases involving "multiple acts" that require unanimity specific to the particular act that leads to the conviction. See State v. Kitchen, 756 P.2d 105, 109 (Wash. 1988) (en banc) (stating that "the jury must be unanimous as to which act or...