State v. DeGraff

CHÁVEZ, Justice (concumng in part and dissenting in part).

{42} I concur with the discussion in Section 11(A) in its entirety and Section 11(B)(2) of the majority opinion. However, because the conduct which supports the aggravated burglary is indistinguishable from the conduct that caused the victim’s death, I would vacate the aggravated burglary conviction as a violation of double jeopardy. See State v. Contreras, 120 N.M. 486, 491 , 903 P.2d 228, 233 (1995) (It would be a violation of the Double Jeopardy Clause to convict and sentence a defendant for both felony murder and the predicate felony when the conduct is unitary.). Therefore, I respectfully dissent from the discussion in Section 11(B)(1).

{43} Conduct is not unitary if the defendant commits acts which are separated by sufficient indicia of distinctness. State v. Mora, 1997-NMSC-060, ¶ 68 , 124 N.M. 346 , 950 P.2d 789 . “The court may consider as ‘indicia of distinctness’ the separation of time or physical distance between the illegal acts, ‘the quality and nature’ of the individual acts, and the objectives and results of each act.” Id. In this case, the theory advanced by the State was that Defendant broke into the victim’s home intending to steal. While Defendant was inside the home, the victim returned, surprising Defendant. A struggle ensued and the victim was killed during the struggle.

{44} The forensic pathologist who testified at trial opined that the cause of death was due to “injuries to the head and stab wounds of the neck.” After describing the wounds to the head and neck the pathologist was asked whether it was possible “to determine the order in which these wounds were sustained.” The response was “Actually no. All these wounds looked to be made in what we call the perimortem interval that means right before death, during death or right after death, the wounds are going to look similar irregardless of when they occurred in relationship to each other.” I find it difficult to find a separation of time or physical distance between the illegal act giving rise to aggravated burglary and the act giving rise to murder.

{45} The distinction is difficult because in this case the jury was instructed that for it to find Defendant guilty of Felony Murder, the State was required to prove beyond a reasonable doubt that Defendant caused the death of the victim during the commission of or the attempt to commit aggravated burglary. 1 To find aggravated burglary the jury was instructed in relevant part:

The State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. The defendant entered a dwelling without authorization;

2. The defendant entered the dwelling with the intent to commit any felony or theft once inside;

3. The defendant touched or applied force to Fr. Michael Mack in a rude or angry manner while entering or leaving, or while inside.

{46} The key element is the application of force. In the past, we have upheld a felony murder conviction and aggravated burglary conviction as against a double jeopardy challenge because the defendant entered a structure, while armed, with the intent to commit a felony in the structure. State v. Livemois, 1997-NMSC-019, ¶20 , 123 N.M. 128 , 934 P.2d 1057 . In Livemois, we concluded that the crime of aggravated burglary was complete once the defendant entered the structure because he was already armed and had the intent to commit a felony in the structure. As such, the subsequent shooting of the victim by the defendant was not unitary conduct. One could find a separation of time and physical distance between the time the defendant in Livemois entered the dwelling while armed and his subsequent shooting of the victim.

{47} Defendant in this case was not charged with aggravated burglary based on his entry into the victim’s home while armed or even that he armed himself with a deadly weapon once inside. Instead, the State charged Defendant with aggravated burglary based on his entry into the structure and application of force to Fr. Mack. It was Defendant’s touching or application of force to Fr. Mack in a rude or angry manner while entering, leaving or inside Fr. Mack’s house that resulted in the aggravated burglary conviction. It was also the force used during the commission of the aggravated burglary that resulted in the victim’s death.

{48} The majority relies on State v. Cooper, 1997-NMSC-058 , 124 N.M. 277 , 949 P.2d 660 , to support its analysis that Defendant’s conduct was not unitary. In Cooper, the court did not find unitary conduct involving conduct giving rise to a conviction for aggravated battery and felony murder. As such we upheld defendant’s convictions for felony murder and aggravated battery. The rationale seemed to be a finding of multiple attacks on the victim by the defendant, each time using different weapons. Cooper, 1997-NMSC-058, ¶ 61 , 124 N.M. 277 , 949 P.2d 660 . Indeed, we stated that the first attack with one of the weapons was followed by a struggle and then more acts which caused the death of the victim. Thus, we concluded that the struggle was an intervening event between the initial battery and the acts which caused the death of the victim. Id. In this case, the testimony of the pathologist supports only a finding of a single attack which resulted in the death of Fr. Mack.

{49} When the force used during the commission of an aggravated burglary results in death, the Legislature has elevated the crime from a second degree felony to a capital felony. The punishment is therefore increased from nine years for aggravated burglary to life imprisonment for felony murder with the predicate felony being aggravated burglary. Therefore, in my opinion the Legislature did not intend punishment for both aggravated burglary and felony murder. See Swafford v. State, 112 N.M. 3, 15 , 810 P.2d 1223, 1235 (holding that even if an initial presumption is created that the Legislature intended multiple punishments for the same conduct under Blockburger, it may be inferred that the Legislature did not intend punishment under both statutes if “one statutory provision incorporates many of the elements of a base statute, and extracts a greater penalty than the base statute”).

{50} For the foregoing reasons, I would vacate Defendant’s aggravated burglary conviction. The majority disagreeing, I respectfully dissent.

I CONCUR: RICHARD C. BOSSON, Chief Justice. . Armed robbery was also a predicate felony for felony murder. As noted in the majority opinion, the district court dismissed the conviction for armed robbery.