State v. Frazier

CHÁVEZ, Chief Justice (specially concurring).

{42} I fully concur in the discussion pertaining to the fingerprint evidence. I also concur in vacating Frazier’s conviction of kidnapping on grounds of double jeopardy. I write separately, however, because, while I believe this case is a step in the right direction, I am convinced that more is required to bring our double-jeopardy jurisprudence in line with the United States Constitution. After taking a fresh look at the issue, I am persuaded that our “unitary-conduct” analysis is in conflict with United States Supreme Court precedent and, thus, beginning with Swafford v. State, 112 N.M. 3 , 810 P.2d 1223 (1991), must be modified. I write separately to explain why and how I believe our double-jeopardy jurisprudence must be modified.

{43} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V; see also N.M. Const. art. II, § 15 (providing for double-jeopardy protection). The clause is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), overruling Palko v. Connecticut, 302 U.S. 319 , 58 S.Ct. 149 , 82 L.Ed. 288 (1937). The Double Jeopardy Clause has two main components. First, it protects a defendant from being retried for the “same offense” either after acquittal or conviction (subsequent prosecutions). Second, it protects a defendant from twice being punished at one trial for the “same offense” (multiple punishments). See Whalen v. United States, 445 U.S. 684, 688 , 100 S.Ct. 1432 , 63 L.Ed.2d 715 (1980); State v. Lynch, 2003-NMSC-020, ¶ 9 , 134 N.M. 139 , 74 P.3d 73 . This case concerns the multiple punishment component, which itself has two prongs. First are the “unit-of-prosecution” cases where the defendant is “charged with multiple violations of a single statute.” Swafford, 112 N.M. at 8 , 810 P.2d at 1228 . Second are the “double-description” cases where “the defendant is charged with violations of multiple statutes that may or may not be deemed the same offense for double jeopardy purposes.” Id. Since Frazier argues that double jeopardy was violated when he was sentenced according to the separate statutes of felony murder and the underlying felony on which the felony murder was predicated, this is a double-description case.

A. United States Supreme Court Precedent

{44} Because the issue is one of a defendant’s federal constitutional rights, I would begin the analysis by looking at precedent from the United States Supreme Court since the Supremacy Clause of the United States Constitution requires us to do so. See U.S. Const. art VI, cl. 2; N.M. Const. art. II, § 1. When dealing with a multiple-punishment issue, the Supreme Court has made it clear that the Double Jeopardy Clause “is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165 , 97 S.Ct. 2221 , 53 L.Ed.2d 187 (1977); see also Missouri v. Hunter, 459 U.S. 359, 366 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983) (“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”). Thus, under Supreme Court precedent, the first step in a court’s analysis is to determine whether two convictions at a single trial were for the “same offense.” If so, the second step is to determine whether multiple punishments for those same offenses were authorized by the Legislature. 1

1. Determining Whether the Two Convictions Were for the Same Offense

{45} In determining whether two charged offenses are the same “for purposes of the Double Jeopardy Clause, [a court] looks to whether the offenses are the same, not the interests that the offenses violate.” United States v. Dixon, 509 U.S. 688, 699 , 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993), overruling Grady v. Corbin, 495 U.S. 508 , 110 S.Ct. 2084 , 109 L.Ed.2d 548 (1990). In making this determination, the Supreme Court has consistently used the test formulated by Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). See, e.g., Brown, 432 U.S. at 166 , 97 S.Ct. 2221 (stating that “[t]he established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger ”). In fact, the Blockburger test, otherwise known as the “same-elements” test, see Dixon, 509 U.S. at 696 , 113 S.Ct. 2849 , is the only test used to determine whether two offenses are the same for purposes of double jeopardy. See id. at 704 , 113 S.Ct. 2849 (overruling Grady’s “same-conduct” test and noting that the Blockburger test “has deep historical roots and has been accepted in numerous precedents of [the Supreme] Court”); see also United States v. Hatchett, 245 F.3d 625, 631 (7th Cir.2001) (“Dixon reestablished the ‘same-elements’ test articulated by Blockburger as the one and only test that courts are to apply____”).

{46} According to Blockburger, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” 284 U.S. at 304 , 52 S.Ct. 180 . Thus, there are two prongs to Blockburger. Under Blockburger, a court must determine: (1) whether each charged offense “requires proof of a fact which the other does not”; and (2) whether each charged offense was part of the “same act or transaction.”

{47} Brown is instructive on both of these points. 2 In Brown, the defendant stole a car in East Cleveland, Ohio. Nine days later, the defendant was caught driving the car in Wickliffe, Ohio. In Wickliffe, the defendant was charged with the offense of joyriding— “taking or operating the car without the owner’s consent.” 432 U.S. at 162 , 97 S.Ct. 2221 . The defendant pled guilty to the charge, paid a $100 fine, and spent thirty days in jail. About a month after being released from jail, the defendant was charged in East Cleveland with auto theft. Id. at 162-63 , 97 S.Ct. 2221 . Contingent on his argument that he could not be prosecuted for auto theft on grounds of double jeopardy, the defendant pled guilty. Id. at 163 , 97 S.Ct. 2221 . On appeal, the Ohio Court of Appeals held that joyriding was a lesser-included offense of auto theft because the only element needed to prove auto theft not needed to prove joyriding was an intent to permanently deprive the owner of the automobile. Id. at 163-64 , 97 S.Ct. 2221 . Nonetheless, the defendant’s conviction of auto theft was upheld on appeal because the court determined that the conduct underlying each conviction was not part of the “same act or transaction.” According to the Ohio court:

The two prosecutions [were] based on two separate acts of the appellant, one which occurred on November 29th and one which occurred on December 8th. Since appellant ha[d] not shown that both prosecutions [were] based on the same act or transaction, the second prosecution [was] not barred by the double jeopardy clause.

Id. at 164 , 97 S.Ct. 2221 (quotation marks omitted).

{48} Applying the first prong of Blockburger, the Supreme Court in Brown agreed with the Ohio Court of Appeals and held that a greater offense and a lesser-included offense are generally the same for purposes of double jeopardy: “As is invariably true of a greater and lesser included offense, the lesser offense ... requires no proof beyond that which is required for conviction of the greater.... The greater offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” Id. at 168 , 97 S.Ct. 2221 .

{49} Regarding the “same act or transaction” prong of Blockburger, however, the Supreme Court disagreed with the Ohio court. Notwithstanding the nine days separating the conduct underlying the two charges, the Supreme Court held that the two offenses were part of the “same act or transaction.” Id. at 169-70 , 97 S.Ct. 2221 . It did so because “[t]he applicable Ohio statutes, as written and as construed in th[e] ease, ma[de] the theft and operation of a single car a single offense.” Id. at 169 , 97 S.Ct. 2221 . Critically, the Supreme Court stated: “The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units." Id. (emphasis added); see also id. at 169 n. 8, 97 S.Ct. 2221 (noting that it “would have [been] a different case if the Ohio Legislature had provided that joyriding [was] a separate offense for each day in which a motor vehicle is operated without the owner’s consent”). Soon afterwards in another case, the Supreme Court quoted Brown and further clarified this principle.

“The Double Jeopardy Clause is not such a fragile guarantee that ... its limitations [can be avoided] by the simple expedient of dividing a single crime into a series of temporal or spatial units,” or, as we hold today, into “discrete bases of liability" not defined as such by the legislature.

Sanabria v. United States 437 U.S. 54, 72 , 98 S.Ct. 2170 , 57 L.Ed.2d 43 (1978) (alteration in original) (emphasis added) (citation omitted).

{50} Under the analysis in Brown, a lesser-included offense is the “same offense” as the greater offense so long as both occurred as part of the “same act or transaction.” Importantly, Brown and Sanabria mandate that in determining whether two charges are part of the “same act or transaction,” courts are to look solely at what the governing statutes provide — not simply to the temporal or spatial distance between the events or conduct underlying the charges. 3

2. Determining Legislative Intent to Punish

{51} Even if two charges are the “same offense” under the Double Jeopardy Clause, a defendant is not protected against multiple punishments for those charges if the legislature has specifically authorized such punishment. In determining legislative intent in this context, the Blockburger test — the same test used for determining whether two offenses are the “same” — is the starting point. See Albernaz, 450 U.S. at 344 n. 3, 101 S.Ct. 1137 , 67 L.Ed.2d 275 (1981). The outcome of the Blockburger test provides a presumptive lens through which to view any statutory language.

{52} Supreme Court precedent makes clear that if one of the two charges is determined to be a lesser-included offense of the other and if both were part of the “same act or transaction,” multiple punishments are unconstitutional unless the legislature has clearly provided for them. See Whalen, 445 U.S. at 692 , 100 S.Ct. 1432 (“[W]here two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.”). If the offenses are the same for purposes of double jeopardy and the legislative intent regarding multiple punishments is ambiguous in such situations, the rule of lenity is to be used. See id. at 695 n. 10, 100 S.Ct. 1432 .

{53} On the other hand, when two charges are not the “same offense,” multiple punishments are presumed permissible unless contrary to legislative intent. Hunter, 459 U.S. at 367 , 103 S.Ct. 673 ; see Albernaz, 450 U.S. at 340 , 101 S.Ct. 1137 . Likewise, when the Blockburger test reveals that the charges are not the same for purposes of double jeopardy, the rule of lenity in construing ambiguous statutes serves no purpose. This is because it is presumed that the legislature was attempting to eradicate separate evils with the different statutes. See Albernaz, 450 U.S. at 342-43 , 101 S.Ct. 1137 .

{54} Most instructive are Whalen and Hunter. In Whalen, the defendant was convicted of rape and felony murder predicated on rape. Similar to the instant ease, the defendant argued that imposition of multiple punishments violated the United States Constitution. 445 U.S. at 685-86 , 100 S.Ct. 1432 . The Supreme Court first determined that rape was a lesser-included offense of felony murder because “rape [was] a necessary element of proof of the felony murder.” Id. at 694 , 100 S.Ct. 1432 . Next, the Supreme Court reversed the defendant’s rape conviction because Congress was, at best, ambiguous as to whether it intended multiple punishments for felony murder and its predicates. See id. at 695 , 100 S.Ct. 1432 .

{55} In contrast is Hunter. In that case, the defendant complained of his multiple convictions of armed criminal action and the lesser-included offense of robbery in the first degree. See Hunter, 459 U.S. at 361-62 , 103 S.Ct. 673 . The statute proscribing armed criminal action, however, provided that any punishment for that crime was to “be in addition to any punishment provided by law for the [lesser-included offense].” Id. at 362 , 103 S.Ct. 673 . The Supreme Court upheld both convictions because the legislature’s intent in providing for multiple punishments was “crystal clear.” Id. at 368 , 103 S.Ct. 673 .

B. Application of United States Supreme Court Precedent

{56} Applying the Supreme Court’s precedent to the instant case, I believe an inquiry must first be made into whether Frazier’s charge of kidnapping is the “same offense” as his charge of felony murder. This requires the answering of two questions: (1) whether kidnapping is a lesser-ineluded offense of felony murder in this case; and if so, (2) whether the kidnapping charge and the felony-murder charge stem from the “same act or transaction?” If the answer to either of these questions is “no,” the charges of kidnapping and felony murder are not the same for purposes of double jeopardy and the presumption is that the Legislature intended multiple punishments. Conversely, if the answer to both questions is “yes,” then the two charges are the “same offense” and an additional inquiry into whether the Legislature intended multiple punishments is required.

{57} Frazier’s kidnapping charge is a lesser-included offense of his felony-murder charge. In Whalen, the government argued that rape was not a lesser-ineluded offense of the defendant’s felony-murder charge because the felony-murder statute “proscribefd] the killing of another person in the course of committing rape or robbery or kidnaping or arson, etc.” 445 U.S. at 694 , 100 S.Ct. 1432 . The Supreme Court rejected this argument, stating: “A conviction for killing in the course of a rape cannot be had without proving all the elements of the offense of rape.” Id. at 693-94 , 100 S.Ct. 1432 . We recognized in State v. Contreras that, after Whalen, there is no doubt that the predicate felony of a felony-murder charge is a lesser-ineluded offense of felony murder. 120 N.M. 486, 491 , 903 P.2d 228, 233 (1995), overruling State v. Stephens, 93 N.M. 458, 463 , 601 P.2d 428, 433 (1979). In the instant case, as pointed out by Justice Bosson, in order to be convicted of felony murder the jury had to find that Frazier “caused the death of Kelly Knoll during the commission of kidnapping.” Maj. Op. ¶ 22. Similar to Whalen, Frazier could not have been convicted of felony murder without all of the elements of kidnapping having first been proved. Since kidnapping is subsumed by the felony-murder charge in this case, Frazier’s kidnapping charge is a lesser-ineluded offense of his felony-murder charge.

{58} The next inquiry is whether the kidnapping and the subsequent killing of Knoll were part of the “same act or transaction.” The answer to this inquiry depends on whether “[t]he applicable ... statutes, as written and as construed in this case, make [kidnapping and felony murder] a single offense.” See Brown, 432 U.S. at 169 , 97 S.Ct. 2221 . My reading of United States Supreme Court precedent is that we must look only to the statutes; we must not use “the simple expedient of dividing [the] crime into a series of temporal or spatial units.” See id. I recognize that, when it comes to felony murder, the majority and I agree. See Maj. Op. ¶ 17 (“[W]e ask whether our felony-murder statute expresses a clear legislative intent that a killing during the commission of a felony constitutes unitary conduct in every case, thereby precluding a unitary conduct inquiry by this Court into the specific facts of the case.”). I applaud this departure from our previous eases, which have mostly conducted a spatial and temporal analysis of the defendant’s underlying conduct. See, e.g., State v. Mora, 1997-NMSC-060, ¶¶ 68-71 , 124 N.M. 346 , 950 P.2d 789 ; State v. Livernois, 1997-NMSC-019, ¶¶ 20-22 , 123 N.M. 128 , 934 P.2d 1057 . Where I differ with the majority, however, is its conclusion that a unitary-conduct analysis based on Swafford is to be used as a proxy when the statutes do not clearly provide that they are to be construed as part of the same transaction. See Maj. Op. ¶ 19. As I discuss further below, I believe that we must always consider the statutes at hand and the intent behind them when determining whether the Legislature intended two charged offenses to be part of the “same act or transaction.” Doing otherwise would be resorting to the “simple expedient” that the Supreme Court in Brown warned against.

{59} Applying Brown, I conclude that Frazier’s kidnapping charge stems from the “same act or transaction” as his felony-murder charge. Our Legislature has provided that to be guilty of felony murder, the murder must occur “in the commission of or attempt to commit any felony.” NMSA1978, § 30-2-l(A)(2) (1994). In fashioning this crime, it is clear from the plain language that the Legislature did not intend to temporally or spatially divide the underlying felony from the killing. That is, the statute requires that the killing occur “in the commission of’ the felony. Since the Legislature fashioned the felony murder statute such that the murder must occur during the commission of the predicate felony, the predicate felony is part of the “same act or transaction” as the murder.

{60} Similar to Brown, a different case would be presented had the Legislature provided that felony murder was a separate offense from its predicate when there was a temporal or spatial gap between the completion of the underlying felony and the subsequent murder. Because it did not, and because we are bound to follow Supreme Court precedent, I conclude that Knolls’s kidnapping and murder occurred as part of the “same act or transaction.” Thus, because the answer to both prongs of the “same offense” question is “yes,” I conclude that Frazier’s kidnapping and felony-murder charges are the “same offense” within the meaning of the Double Jeopardy Clause of the Fifth Amendment.

{61} Having concluded that kidnapping and felony murder in this case are the “same offense,” I believe the next course of action is to determine whether multiple punishments are legislatively authorized. Since kidnapping is a lesser-included offense of felony murder predicated on kidnapping, there is a presumption that our Legislature did not intend multiple punishments. See Whalen, 445 U.S. at 691-92 , 100 S.Ct. 1432 . In looking at the statutory language, Frazier should not receive multiple punishments unless there is “a clear indication of contrary legislative intent.” Id. Any ambiguity should be construed in favor of Frazier. See id. at 695 n. 10, 100 S.Ct. 1432 .

{62} The legislation at issue is silent on whether the Legislature intended multiple punishments. Under New Mexico law, felony murder is murder in the first degree — a capital felony. NMSA 1978, § 30-2-l(A). A defendant guilty of a capital felony “shall be punished by life imprisonment or death.” Id. § 31-18-14(A) (1993). Whoever commits kidnapping who does not voluntarily free the victim in a safe place is guilty of a first-degree felony. Id. § 30-4-1 (2003). The basic sentence for a first-degree felony is eighteen years of imprisonment. Id. § 31-18-15(A)(2) (2005). Nowhere in the statutory provisions defining these crimes or providing for their punishment does the Legislature specifically authorize multiple punishments. Had it wanted to, the Legislature could have spoken clearly on this point. See Hunter, 459 U.S. at 362 , 103 S.Ct. 673 (discussing a statute that provided for the punishment of armed criminal action to “be in addition to any punishment provided by law for the [lesser-included offense]”); Jackson v. State, 1996-NMSC-054 , ¶2 n. 1, 122 N.M. 433 , 925 P.2d 1195 (discussing legislation providing for multiple punishments for felony murder and the underlying felony, but that never reached the senate floor). Given the Legislature’s silence on this matter and applying the rule of lenity, I conclude that the Legislature has not clearly authorized multiple punishments for felony murder and its predicate felony. Because it has not, Frazier’s dual conviction of both kidnapping and felony murder predicated on kidnapping runs afoul of the Fifth Amendment to the U.S. Constitution. Accordingly, I agree that we must vacate Frazier’s conviction of kidnapping.

C. Unitary Conduct Depends upon the Harm Proscribed by the Statute at Issue

{63} I agree entirely with the majority’s recognition that double jeopardy precludes a defendant from being convicted of both felony murder and its predicate. See Maj. Op. ¶¶ 20, 23. Interestingly, in Jackson, a habeas ease decided soon after Contreras, we implicitly understood Contreras to hold exactly what the majority does now. See 1996— NMSC-054, 122 N.M. 433 , 925 P.2d 1195 . It appears that Jackson has never been cited for this proposition. Despite my admiration of the majority opinion, I find it necessary to discuss why I believe Swafford, or at least our interpretation of that case, is inconsistent with United States Supreme Court precedent.

{64} The determination under Swafford of whether a defendant’s conduct underlying each charge is unitary has served as a substitution for an analysis of whether that conduct is part of the “same act or transaction” pursuant to Brown. See Brown, 432 U.S. at 169-70 , 97 S.Ct. 2221 . That is, we implicitly determined that whether a defendant’s conduct underlying two charges is the “same act or transaction” depends on whether that same conduct is “unitary.” All things being equal, this would be a mere question of semantics. However, the framework we erected in Swafford on the unitary-conduct question focused our analytical scope too narrowly.

{65} In Swafford, we partly relied upon a law review article to fashion our two-part test. Swafford, 112 N.M. at 13 , 810 P.2d at 1233 (citing George C. Thomas III, A Unified Theory of Multiple Punishment, 47 U. Pitt. L.Rev. 1, 12-25 (1985)). Professor Thomas argued that the question of whether double jeopardy is violated under the multiple punishment prong hinges on three components: (1) whether the conduct is unitary; (2) whether the statutes proscribe the same conduct; and (3) whether the legislature authorized multiple punishments. See Thomas, supra, at 5-8. Professor Thomas further acknowledged, however, that “[t]he same offense definitional issue contains the first two ‘component issues’: (1) whether the underlying conduct was unitary, and (2) whether the statutory definitions are the same.” Id. at 11. This observation tracks Supreme Court precedent. That is, Professor Thomas simply reiterated what I have already discussed — that to determine whether two offenses are the same for purposes of double jeopardy, courts must determine: (1) whether the conduct underlying each was part of the “same act or transaction” (i.e., whether the conduct is unitary); and (2) whether the elements of one charge are subsumed within the other.

{66} Swafford, a double-description case, read the unitary-conduct question to mean that “if the defendant commits two discrete acts violative of the same statutory offense, but separated by sufficient indicia of distinctness, then a court may impose separate, consecutive punishments for each offense.” 112 N.M. at 13 , 810 P.2d at 1233 (emphasis added). Besides not recognizing Brown, one error made in Swafford was that the Court conflated the unit-of-prosecution issue with the double-description issue. That is, assuming it true that double jeopardy is not violated if a defendant is punished for multiple violations of the “same statutory offense” (i.e., the exact same statute) so long as the defendant’s actions are “separated by sufficient indicia of distinctness,” this does not mean that there is no double jeopardy violation when a defendant is punished twice for a greater- and lesser-included offense under the same circumstances. 4 In other words, Swafford incorrectly assumed that if one of the charges is a lesser-included offense of the other, this is the same thing as saying that they are the “same statutory offense.” By doing so, the court was able to temporally and spatially divide the defendant’s actions into discrete units. See also id. (observing in a double-description case that “the double jeopardy clause clearly cannot operate to prohibit prosecution, conviction, and punishment in a single trial for discrete acts violative of the same statute ” (emphasis added)).

{67} In his article, however, Professor Thomas recognized that, in accordance with Brown, whether a defendant’s conduct underlying each charge is unitary with another is wholly dependent on the conduct the legislature intended to proscribe:

[T]he unitary conduct question is not whether the physical actions of the accused are discrete — they clearly were in Brown — but is, instead, whether the actions constitute a single course of conduct prohibited by the statute. If the defendant’s separate physical acts are committed within the scope of that legislatively defined course of conduct, the conduct is unitary for purposes of the double jeopardy clause.

Thomas, supra, at 18 (footnote omitted); see also id. at 19 n. 95 (stating that whether conduct is unitary “ultimately depend[s] on determining the precise harm proscribed by the statutes at issue rather than analyzing the defendant’s physical actions”); id. at 20 (“[T]he unitary conduct issue depends entirely on what the legislature intended to be the unit of conviction, rather than on a space-time analysis of the defendant’s physical actions.” (footnote omitted)). Thus, by misreading Professor Thomas’s law review and inadvertently conflating the double-description and unit-of-prosecution issues, Swafford read the unitary-conduct question too narrowly.

{68} I also note that because we mistakenly believed in Swafford that whether a defendant’s charged conduct is unitary is largely contingent upon a spatial and temporal analysis of the defendant’s conduct, we stated that the United States Supreme Court “assumed” that the rape and murder in Whalen were part of a single criminal episode. See Swafford, 112 N.M. at 13 , 810 P.2d at 1233 . In fact, the Supreme Court did not make this assumption. Rather, it simply recognized that the conduct underlying the predicate felony of a felony-murder charge is necessarily unitary with the murder. This is because a felony-murder statute, by its very nature, requires that the murder occur during the commission of the predicate felony. This, in turn, necessarily means that the two events are part of the “same act or transaction” since the felony-murder statute proscribes a course of conduct that necessarily includes the conduct underlying the predicate felony. Thus, because it comports with Supreme Court precedent, I would adopt the view that a determination of whether a defendant’s conduct underlying each charge is unitary always depends solely upon what course of conduct our Legislature proscribed — not simply upon the discrete physical acts or objectives of the defendant. See Thomas, supra, at 23-25 (“The unitary conduct determination is made by comparing the defendant’s conduct to the basic unit of conviction defined by the statute or statutes in question and tempering the result with the rule of lenity.” (footnote omitted)).

{69} While I agree that Swafford referred to legislative intent in discussing both the “same offense” and intent to punish questions, see Maj. Op. ¶24, our long line of subsequent precedent has undoubtedly construed Swafford to mean that we do not consider legislative intent at all unless we first determine that a defendant’s conduct was unitary in time and space. In the felony-murder contesct alone, we have done so in at least eight published opinions. See State v. Bernal, 2006-NMSC-050, ¶ 11 , 140 N.M. 644 , 146 P.3d 289 ; State v. DeGraff, 2006-NMSC-011, ¶ 31 , 139 N.M. 211 , 131 P.3d 61 ; State v. Barrera, 2001-NMSC-014, ¶ 36 , 130 N.M. 227 , 22 P.3d 1177 ; State v. Foster, 1999-NMSC-007, ¶35 , 126 N.M. 646 , 974 P.2d 140 ; State v. Mora, 1997-NMSC-060, ¶ 71 , 124 N.M. 346 , 950 P.2d 789 ; State v. Livemois, 1997-NMSC-019, ¶22 , 123 N.M. 128 , 934 P.2d 1057 ; State v. Kersey, 120 N.M. 517, 523 , 903 P.2d 828, 834 (1995); State v. Ortega, 112 N.M. 554, 571 , 817 P.2d 1196, 1213 (1991).

{70} This is how I would summarize a modification of Swafford to bring our double-jeopardy jurisprudence in line with United States Supreme Court precedent. The general rule is that multiple punishments for the “same offense” violate the Double Jeopardy Clause unless our Legislature has clearly authorized otherwise. To ascertain whether two charges are the “same offense,” a court must first determine if, pursuant to the Blockburger same-elements test, one charge is subsumed by the elements of the other. If so, the court must then determine if the conduct underlying each charge is part of the “same act or transaction,” that is, if the conduct is unitary. Of course, if the two charges are statutorily the same (a unit-of-prosecution case) one need only answer the unitary-conduct question to determine whether the charges are the “same offense.” Whether the defendant’s conduct is unitary depends entirely on what conduct the Legislature intended to proscribe — not on a simple analysis of the spatial and temporal division between the defendant’s actions or the type of force used to commit each act. If a charge is a lesser-included offense of the other and if the defendant’s conduct underlying each charge is part of the “same act or transaction,” then the two offenses are the “same offense” and a court must then determine whether our Legislature clearly authorized multiple punishments for that “same offense.” Under the rule of lenity, statutory silence and ambiguity on this question is construed in favor of the defendant. If our Legislature did not clearly authorize multiple punishments, then the lesser of the defendant’s convictions must be reversed.

{71} Although in the final analysis I am suggesting a further deviation from our existing precedent than the majority contemplates, “we are bound by the United States Supreme Court’s interpretation of the United States Constitution, and we must endeavor to refrain from unduly encroaching on the functions of the legislative branch of this State.” Cockrell v. Bd. of Regents of N.M. State Univ., 2002-NMSC-009 , ¶ 27, 132 N.M. 156 , 45 P.3d 876 . See also State ex rel. Serna v. Hodges, 89 N.M. 351, 354 , 552 P.2d 787, 790 (1976) (recognizing that Supreme Court precedent interpreting the U.S. Constitution is “binding upon us”), overruled in part on other grounds by State v. Rondeau, 89 N.M. 408, 412 , 553 P.2d 688, 692 (1976); see also State v. Martinez, 2002-NMSC-008, ¶ 64 , 132 N.M. 32 , 43 P.3d 1042 (Serna, C.J., dissenting) (“This Court cannot reinterpret the federal constitution contrary to Supreme Court precedent.”); cf. Dixon, 509 U.S. at 712 , 113 S.Ct. 2849 (“Although stare decisis is the ‘preferred course’ in constitutional adjudication, Vhen governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent.’” (quoting Payne v. Tennessee, 501 U.S. 808, 827 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991))). Furthermore, it is important to point out that prosecutors will typically not have their hands tied. For instance, as happened in this case, a prosecutor may still charge a defendant with felony murder and several other felonies, only one of which is the predicate to the felony murder. In such a scenario, the defendant could still be convicted of felony murder and all of the non-predicate felonies — with sentences on all or some of those non-predicate felonies running consecutively to his or her life sentence for first-degree murder. See, e.g., Meeks v. State, 604 So.2d 748, 753 (Miss.1992) (“It may well be that the prosecution could have achieved the practical end it here defends through other means. Had it selected burglary as the underlying felony incident to the capital murder charge and left the kidnapping ... wholly aside from that charge, likely separate prosecution and double conviction would stand.” (citation omitted)).

{72} Frazier was unconstitutionally twice punished for the “same offense” when he was convicted of both kidnapping and felony murder predicated on kidnapping. The elements of kidnapping were subsumed within the elements of felony murder predicated on kidnapping. Because the felony-murder statute proscribes killings that occur during the course of any felony, and because Frazier’s felony-murder charge was contingent upon the kidnapping, Frazier’s conduct underlying the kidnapping and murder of Knolls was unitary. That is, the conduct underlying both charges was part of the “same act or transaction.” Thus, Frazier’s kidnapping and felony-murder charges were the “same offense.” Double jeopardy was violated by his dual convictions of these charges since our Legislature has not clearly authorized multiple punishments in such situations. Accordingly, I would also vacate Frazier’s conviction of kidnapping. However, because I would go further and actually modify Swafford to bring it into conformity with the United States Supreme Court’s precedent on double jeopardy, I specially concur with Justice Bosson’s well-written opinion.

. In some cases, a court may also start (and end with) a determination of legislative intent to punish. See Hunter, 459 U.S. at 368-69 , 103 S.Ct. 673 (concluding that when a legislature specifically authorizes multiple punishments for two statutes, regardless of whether the statutes proscribe the "same offense,” dual convictions may be had and analysis is at an end).

. Although Brown is a case that dealt with whether double jeopardy was violated by successive prosecutions — not whether double jeopardy was violated by multiple punishments — it is clear that the determination of whether two charges are the "same offense” is identical in both contexts. In Dixon, the Supreme Court stated:

We have often noted that the Clause serves the function of preventing both successive punishment and successive prosecution, but there is no authority ... for the proposition that it has different meanings in the two contexts. That is perhaps because it is embarrassing to assert that the single term “same offence” ... has two different meanings....

509 U.S. at 704 113 S.Ct. 2849 (citation omitted). See also Brown, 432 U.S. at 166 , 97 S.Ct. 2221 ("If two offenses are the same ... for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.”). Moreover, Blockburger itself was a multiple-punishment case. See Blockburger, 284 U.S. at 300-01 , 52 S.Ct. 180 .

. Of course if the defendant was charged with multiple violations of the same statute, a unit-of-prosecution case, then the only question to be answered in determining whether two charges are the "same offense” is whether the defendant's conduct underlying each charge was part of the “same act or transaction” as defined by the legislature.

. Importantly, though, according to Supreme Court precedent whether the conduct underlying each charged offense — even if the same statute, and thus a unit-of-prosecution case — is part of the "same act or transaction” depends upon what conduct the Legislature intended to proscribe — not simply upon the temporal or spatial separation between the defendant's discrete actions. See Sanabria, 437 U.S. at 70 , 98 S.Ct. 2170 (“Whether a particular course of conduct involves one or more distinctive 'offenses’ under the statute depends on ... congressional choice.”); United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 224 , 73 S.Ct. 227 , 97 L.Ed. 260 (1952) (holding that the defendant could only be charged once for multiple violations of one provision of the Fair Labor Standards Act because Congress only intended to punish "a course of conduct”); see also, e.g., State v. Hutchinson, 99 N.M. 616, 624 , 661 P.2d 1315, 1323 (1983) (describing kidnapping as a continuous offense and stating that “[a]cts and deeds that emanate from the kidnapping become a part of the act as long as the kidnapping continues”).