by Douglas Ankney

The Supreme Court of New Mexico clarified that when reviewing claims of double jeopardy, the court is to apply either the strict-elements test of Blockburger v. United States, 284 U.S. 299 (1932), or the modified strict-elements test of State v. Gutierrez, 258 P.3d 1024 (N.M 2011), but not both.

Surveillance video captured Franklin D. Begaye breaking the front window of Ram Signs, entering the business, rummaging through the cash drawer, and then fleeing. Begaye was ultimately tried and convicted of nonresidential burglary in violation of NMSA 1978, § 30-16-3(B) (1971), and breaking and entering (“B&E”) in violation of NMSA 1978, § 30-14-8 (1981). Defense counsel moved to dismiss the breaking and entering count on double jeopardy grounds, arguing that the State had relied on the same conduct and evidence to sustain both convictions. The district court denied the motion.

The Court of Appeals (“COA”) affirmed both convictions. The COA applied Blockburger’s strict-elements test and determined that because each offense requires an element not required by the other, no violation of double jeopardy protections occurred. The COA then applied the modified strict-elements test of Gutierrez and concluded that, because each offense requires an element not found in the other, the legislature authorized separate punishments for each offense. The New Mexico Supreme Court granted Begaye’s petition for a writ of certiorari.

The Court observed that under the “United States and New Mexico Constitutions, no person shall be ‘twice put in jeopardy’ for the same offense.” U.S. Const. am. V; N.M. Const. art. II, § 15. The double jeopardy clauses protect defendants in three distinct categories: (1) “a second prosecution for the same offense after acquittal,” (2) “a second prosecution for the same offense after conviction,” and (3) “multiple punishments for the same offense.” State v. Gallegos, 254 P.3d 655 (N.M. 2011). The third category is the most common and occurs in two ways: (1) cases where a single act results in multiple charges under different statutes, i.e., “double description” and (2) unit of prosecution cases where the defendant is convicted of multiple violations of the same statute. Id. “It is well established that the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Gutierrez.

Because Begaye’s conduct resulted in him being convicted and punished under two different statutes (double description), the Court utilized the two-part test adopted in Swafford v. State, 444 P.3d 1064 (N.M. 1991). First, it had to determine “whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes.” Id. Second, the Court had to examine “the statutes at issue to determine whether the legislature intended to create separately punishable offenses.” Id. “Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.” Id.

It is Swafford’s second prong that prompted the Court to previously opine “[h]onoring the law’s protection against multiple punishments for the same offense is one of the most vexing challenges of double jeopardy jurisprudence.” State v. Montoya, 306 P.3d 426 (N.M. 2013). In Swafford, the New Mexico Supreme Court adopted Blockburger’s strict-elements test (i.e., when defendants are convicted under two different statutes, the courts analyze only each statute’s elements to determine whether each statute contains an element not found in the other—if so, no double jeopardy violation occurs). The Swafford Court explained that the strict-elements test does not involve the consideration of the evidence presented at trial. Id. And in State v. Franco, 112 P.3d 1104 (N.M 2005), the state Supreme Court explicitly rejected “an evidence based approach” in favor of Blockburger’s elements-based approach.

But the Blockburger analysis in New Mexico was modified in Gutierrez where that Court instructed that when the statutes at issue are vague or written in the alternative, the reviewing court may look at the indictment and jury instructions to determine the State’s “legal theory.” However, Gutierrez noted that analysis of the particular facts of the case should be avoided. But after Gutierrez’s limitations proved unworkable in determining the State’s legal theory, the state Supreme Court ultimately ruled “we also review the testimony, opening arguments, and closing arguments to establish whether the same evidence supported a defendant’s convictions under both statutes.” State v. Porter, 476 P.3d 1201 (N.M. 2020).

In the present case, the Court accepted the State’s concession that Begaye’s conduct was unitary because both of his convictions “arose out of the unitary conduct of Defendant entering Ram Signs by breaking the window.” Where the conduct is unitary, the Court first looks to the language of the criminal statutes to determine whether the legislature intended to authorize multiple punishments. Porter. In Begaye’s case, neither statute authorized multiple punishments, requiring further analysis, according to the Court.

But even though the B&E statute was written in the alternative (requiring the modified strict-elements test of Gutierrez), the COA first reviewed under Blockburger’s strict-elements test. The Court instructed: “We clarify that in double jeopardy cases where a defendant asserts having been twice put in jeopardy for the same offense, like the present case, a court must first examine the statutes at issue to discern whether the modified or strict-elements Blockburger test applies. Once a court has made such a determination, it should then apply either the modified or the strict-elements test—but not both.”

Per Gutierrez, the Court then looked to Begaye’s charging documents and jury instructions, but none of these revealed the State’s legal theory. Following Porter, the Court then examined the prosecutor’s recounting of the evidence in his closing arguments and observed that the prosecutor relied on the same evidence (the breaking of the window, entering the business, and rummaging through the cash drawer) to satisfy the elements of both criminal statutes. Even though the burglary statute requires an intent to commit a theft that is not required in the B&E statute, and the B&E statute requires a forcible entry not found in the burglary statute, the State’s legal theory using the same evidence to sustain both convictions meant the B&E’s elements are subsumed within the burglary elements, the Court determined. “If one of the offenses subsumes the other offense, the double jeopardy prohibition is violated, and punishment cannot be had for both.” Porter.

The Court concluded that Begaye’s right to be free from double jeopardy was violated because his conduct was unitary, and under the State’s theory, the breaking and entering elements were subsumed within the burglary elements. Where double jeopardy rights are violated “one of the defendant’s convictions must be vacated.” Porter. If both convictions are the same degree of felony, the choice of which conviction to vacate lies with the trial court. Id. Both of Begaye’s convictions were fourth degree felonies.

Accordingly, the Court reversed the decision of the COA and remanded to the district court with instructions to vacate one conviction and resentence Begaye. See: State v. Begaye, 533 P.3d 1057 (N.M. 2023).  

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