State v. Serna

STATE OF NEW MEXICO, Plaintiff-Appellee, v. WILLIAM SERNA, Defendant-Appellant.

Docket No. A-1-CA-34926

COURT OF APPEALS OF NEW MEXICO

May 28, 2019

This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Christina P. Argyres, District Judge

COUNSEL

Hector H. Balderas, Attorney General, Maha Khoury, Assistant Attorney General, Santa Fe, NM for Appellee

Bennett J. Baur, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM for Appellant.

JUDGES

BRIANA H. ZAMORA, Judge. I CONCUR: LINDA M. VANZI, Judge. KRISTINA BOGARDUS, Judge (specially concurring).

AUTHOR: BRIANA H. ZAMORA

MEMORANDUM OPINION

B. ZAMORA, Judge.

{1} Defendant William Serna appeals his convictions for possession of a controlled substance and conspiracy to commit possession of a controlled substance on the following grounds: (1) his right to be free from double jeopardy was violated; (2) there was insufficient evidence to support his convictions; (3) he was entitled to a jury instruction on a lesser-included offense; (4) he had ineffective assistance of counsel; and (5) his right to a speedy trial was violated. Because we agree with Defendant that his conviction for conspiracy to commit possession of a controlled substance violated his right against double jeopardy, we reverse and remand for the district court to enter an order vacating this conviction. We otherwise affirm.

BACKGROUND

{2} In August 2012 Officer Daniel Galvan was part of a "tactical plan" at the Albuquerque Rescue Mission, a shelter for homeless people. Officer Galvan and another officer were on the roof of the Rescue Mission that night watching for potential drug use and other possible crimes occurring on the sidewalk below. Although it was dark, the officers could see the sidewalk below because it was illuminated by floodlights. While the officers observed the sidewalk, an arrest team was in a patrol car parked down the street.

{3} From his vantage point on the roof, Officer Galvan saw Defendant and Matthew Valdez approximately fifteen feet directly below his position, lying on the sidewalk on their sides and talking to one another. Nothing obstructed Officer Galvan's view of Defendant and Valdez, it was a clear night, and Officer Galvan was wearing his prescription glasses. While Officer Galvan was observing the two men, Defendant produced what Officer Galvan identified as a crack cocaine pipe, took out a lighter, and took "three hits" from it¹, flicking the pipe upwards so it was orientated vertically rather than horizontally, as one would smoke a cigarette. After Officer Galvan observed Defendant smoke from the pipe, he called the arrest team. Officer Galvan then observed Defendant pass the pipe to Valdez who also smoked from it and Valdez then concealed the pipe in a red pouch. Officer Galvan continued to observe Defendant, until the arrest team reached the scene, less than two minutes later.

{4} When the arrest team approached, Valdez threw the red pouch to his feet and tried to kick it away. Officer Amy Markwick, an officer on the arrest team, searched the red pouch and discovered the pipe. Officer Markwick later gave the pipe to Officer Galvan so he could tag it into evidence. Officer Galvan removed a Brillo pad from the pipe, which is a copper wire mesh typically found in crack cocaine pipes and tagged it into evidence. The Brillo pad later tested positive for the presence of cocaine. Officer Markwick testified at trial that she could not recall if the arrest team recovered anything else on Defendant or Valdez. Officer Markwick further testified that she could not recall if there was anything else in the red pouch or whether she "inventoried it or not[,]" but if the pouch was inventoried and there were additional pipes they would also have been tagged into evidence.

{5} Defendant was indicted on one count of possession of a controlled substance, contrary to NMSA 1978, Section 30-31-23 (2011), and one count of conspiracy to commit possession of a controlled substance, contrary to NMSA 1978, Section 30-28-2 (1979), and Section 30-31-23. The Friday before trial, Defendant filed a motion to dismiss on speedy trial grounds, which was denied by the district court. Following the trial, the jury returned a guilty verdict for both felony counts.

DISCUSSION

I. Double Jeopardy

{6} Defendant argues that his convictions for possession of a controlled substance and conspiracy to commit possession of a controlled substance violate his right to be free from double jeopardy. Specifically, Defendant contends that his convictions under the two different statutes present a double-description double jeopardy claim because the State relied on the moment Defendant smoked the pipe with Valdez to prove both the possession and conspiracy to commit possession charges. See State v. Gutierrez, 2011-NMSC-024, ¶ 51, 150 N.M. 232, 258 P.3d 1024 (holding that a double-description claim requires "first analyzing whether the conduct underlying the offense is unitary, i.e., whether the same conduct violates both statutes, and, if so, proceeding to analyze whether the [L]egislature intended to create separately punishable offenses" (internal quotation marks and citation omitted)).

{7} The State agrees that Defendant's right to be free from double jeopardy was violated and his "conviction for conspiracy should be vacated." Although we are not bound by the State's concession, we agree. See State v. Montoya, 1993-NMCA-097, ¶ 28, 116 N.M. 297, 861 P.2d 978 (noting that this Court is not bound by state's concessions). In State v. Silvas, our Supreme Court noted that, to support a conviction for two different crimes, the state relied on evidence of a "single moment in time [(giving drugs to codefendant)] to prove both [the d]efendant's possession with intent [to distribute] and [the d]efendant's conspiratorial agreement with [the codefendant] to commit the same crime." 2015-NMSC-006, ¶ 10, 343 P.3d 616. Our Supreme Court concluded that this constituted unitary conduct and violated the defendant's right against double jeopardy. Id. ¶¶ 19-21. The same is true here. In its closing argument, "the State appears to have directed the jury to the same act for both crimes." Id. ¶ 18.

{8} Accordingly, based on our review of the record, and the State's concession on this point, we find further analysis unnecessary and conclude Defendant's right to be free from double jeopardy was violated.

II. Sufficiency of the Evidence

{9} Defendant claims that there was insufficient evidence to support his conviction for possession of a controlled substance. Defendant also argues there is insufficient evidence to support his conviction for conspiracy to possess a controlled substance. However, because we vacated the conspiracy conviction based on double jeopardy grounds, we need not address this argument.

A. We Decline to Overturn Wood and Grijalva

{10} Defendant argues that there was insufficient evidence that he possessed a controlled substance pursuant to Section 30-31-23 because the empty pipe contained only a trace amount of cocaine. Defendant's argument is contrary to existing precedent and would require us to overturn our decisions in State v. Wood, 1994-NMCA-060, 117 N.M. 682, 875 P.2d 1113 and State v. Grijalva, 1973-NMCA-061, 85 N.M. 127, 509 P.2d 894. In Wood, this Court held that less than 0.0001 gram of cocaine located in syringes was sufficient to uphold a conviction for possession of a controlled substance. 1994-NMCA-060, ¶¶ 2-3, 6-12.

{11} Defendant requests we overturn Wood and Grijalva because the legislative intent of Section 30-31-23 was not to punish people who possess paraphernalia containing only residue and such a holding "makes an absurd distinction between clean and dirty paraphernalia." Defendant adds that, "all misdemeanor paraphernalia cases would be transformed into drug possession cases by the mere fact that drug users had used their paraphernalia before[.]" The State responds that the legislative intent of the possession statute is to prevent consumption and here Officer Galvan observed Defendant consuming what the jury could have inferred was crack cocaine, the exact behavior the Legislature sought to prevent. Further, the State argues, the distinction between the possession of a controlled substance and possession of paraphernalia is not rendered absurd when applied to the facts of this case. We agree with the State.

{12} "Stare decisis is the judicial obligation to follow precedent, and it lies at the very core of the judicial process of interpreting and announcing law." See Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 33, 125 N.M. 721, 965 P.2d 305. Stare decisis is at the core of maintaining "a sound judicial system[.]" Id. Consequently, "any departure from precedent demands special justification." N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-028, ¶ 11, 127 N.M. 654, 986 P.2d 450 (alteration, omission, internal quotation marks, and citation omitted). In deciding whether to overturn precedent we look to:

1) whether the precedent is so unworkable as to be intolerable; 2) whether parties justifiably relied on the precedent so that reversing it would create an undue hardship; 3) whether the principles of law have developed to such an extent as to leave the old rule no more than a remnant of abandoned doctrine; and 4) whether the facts have changed in the interval from the old rule to reconsideration so as to have robbed the old rule of justification.

State v. Pieri, 2009-NMSC-019, ¶ 21, 146 N.M. 155, 207 P.3d 1132 (internal quotation marks and citation omitted). Defendant states that his argument is premised both on the first factor, that the result of this...