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State v. Bello

Court of Appeals of New Mexico

March 2, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
ARMIS BELLO, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY Ross C. Sanchez, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Charles J. Gutierrez, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Allison H. Jaramillo, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          M. MONICA ZAMORA, Judge.

         {1} Defendant Armis Bello appeals from his convictions for trafficking cocaine by distribution, contrary to NMSA 1978, Section 30-31-20(A)(2) (2006), and trafficking cocaine by possession with intent to distribute, contrary to Section 30-31-20(A)(3). Defendant argues that (1) his convictions violate the prohibition against double jeopardy, (2) the State presented insufficient evidence to sustain his convictions, and (3) he received ineffective assistance of counsel. We affirm in all respects.

         BACKGROUND

         {2} On November 11, 2009, an Albuquerque Police Department (APD) undercover narcotics team conducted an undercover operation in an area of the city known to police for narcotics-related activity. Detective David Jaramillo was the case agent for the operation and was the undercover officer responsible for making the narcotic purchases. Detective Jaramillo was dropped off in the targeted area, where he observed a man standing at the corner of an intersection with no apparent purpose and who appeared to be a "flagger" or a person that solicits sales of narcotics. The man was later identified as Ralph Franco.

         {3} Detective Jaramillo approached Franco and asked whether Franco was "holding"-which is common street terminology for possessing narcotics for sale. After Detective Jaramillo indicated that he was looking for crack cocaine, Franco told him that he did not have any but that he could take Detective Jaramillo to another location to make a purchase. Detective Jaramillo followed Franco on foot to a parking lot a few blocks away. Once they arrived at the parking lot, Franco identified Defendant as the person selling the crack cocaine. Detective Jaramillo gave Franco a $20 bill and watched as Franco approached Defendant and gave him the money. In exchange, Defendant gave Franco an unknown substance. Franco returned to Detective Jaramillo and handed him a clear cellophane package containing what appeared to be a small rock of crack cocaine.

         {4} According to Detective Jaramillo, the rock Franco gave him was very small, "way under the value" of the money exchanged. Staying "in role" Detective Jaramillo questioned Franco about being shortchanged, and then he approached Defendant directly. Defendant brushed Detective Jaramillo's complaint off and told him that the small rock was all he was getting. Detective Jaramillo asked Defendant if he had any more to sell, and Defendant indicated that he did. Detective Jaramillo bought a second rock from Defendant for ten dollars. As he left the parking lot, Detective Jaramillo gave his team the bust signal. Defendant, Franco, and a third subject identified only as Aguilar, were arrested.

         {5} The two rocks Detective Jaramillo purchased were labeled and tagged into APD evidence. Both substances were tested by the APD crime lab and were positively identified as cocaine. Defendant was indicted for trafficking cocaine by distribution, conspiracy to commit trafficking, trafficking cocaine by possession with intent to distribute, and tampering with evidence. Defendant was convicted of trafficking cocaine by distribution and trafficking cocaine by possession with intent to distribute.

         DISCUSSION

         Double Jeopardy

         {6} Defendant contends that his convictions for trafficking cocaine by distribution and possession of cocaine with intent to distribute violate the prohibition against double jeopardy. "A double jeopardy challenge is a constitutional question of law[, ] which we review de novo." State v. Swick (Swick II), 2012-NMSC-018, ¶ 10, 279 P.3d 747. "The Fifth Amendment of the United States Constitution[, ] . . . made applicable to New Mexico by the Fourteenth Amendment[, ]" prohibits double jeopardy and "functions in part to protect a criminal defendant against multiple punishments for the same offense." Id. (internal quotation marks and citation omitted). Double jeopardy cases involving multiple punishments are classified as either double description cases, "where the same conduct results in multiple convictions under different statutes[, ]" or unit of prosecution cases, "where a defendant challenges multiple convictions under the same statute." Id.

         {7} In the present case, both parties assert that Defendant's convictions under Subsection (A)(2) (distribution) and Subsection (A)(3) (possession with intent to distribute) implicate a double description analysis. Defendant relies on this Court's decision in State v. Swick (Swick I), 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, aff'd in part, rev'd in part by Swick II, 2012-NMSC-018. In Swick I, the defendant illegally entered the victims' home, and once inside, beat and stabbed the victims before taking $14 and the victims' vehicle. Swick I, 2010-NMCA-098, ΒΆ 3. The defendant was convicted of one count of second degree murder, two counts of attempted murder, two counts of aggravated battery with a deadly weapon, two counts ...


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