FROM THE DISTRICT COURT OF DOÑA ANA COUNTY Fernando R.
Macias, District Judge
H. Balderas, Attorney General Santa Fe, NM M. Victoria
Wilson, Assistant Attorney General Albuquerque, NM for
Bennett J. Baur, Chief Public Defender Nina Lalevic,
Assistant Appellate Defender Santa Fe, NM for Appellant
JONATHAN B. SUTIN, Judge.
Defendant Annette C. Fuschini was convicted of involuntary
manslaughter and aggravated driving while intoxicated (DWI)
after she ran over her fiancé with a vehicle, which
resulted in his death. On appeal, Defendant argues that her
convictions violate the double jeopardy clause of the Fifth
Amendment of the United States Constitution. We hold that
double jeopardy was not violated and thus affirm
Defendant and her fiancé, Carlos Nevarez, were
celebrating his birthday at their friends' house.
Defendant and Nevarez had been drinking at their home, and
they continued to drink at the celebration. When they left
their friends' house, Defendant was driving their
Silverado truck, and Nevarez was in the passenger seat.
As they were driving home, Defendant and Nevarez were having
an argument, Defendant suddenly stopped the truck on the side
of the road, and Nevarez got out. Nevarez yelled at Defendant
to leave and walked away onto the curb. Defendant then drove
the truck over the curb and hit Nevarez, pulling him
underneath the wheels. Nevarez died from his injuries.
A grand jury indictment charged Defendant with the deliberate
and intentional killing of Nevarez in violation of NMSA 1978,
Section 30-2-1(A)(1) (1994), and aggravated DWI for causing
bodily injury to Nevarez in violation of NMSA 1978, Section
66-8-102 (2010, amended 2016). At trial, Defendant requested
and the district court submitted instructions on second
degree murder and involuntary manslaughter as lesser included
offenses to the first degree murder charge. The jury found
Defendant guilty of involuntary manslaughter and aggravated
Prior to sentencing, Defendant submitted a sentencing
memorandum to the district court opposing the State's
request to impose consecutive sentences. Defendant asserted
that, under the facts and instructions given to the jury,
imposing a sentence for both convictions would result in
multiple punishments for the same offense in violation of the
Fifth Amendment. In support of her argument, Defendant
referred the district court to State v. Montoya,
2013-NMSC-020, 306 P.3d 426; State v. Swick,
2012-NMSC-018, 279 P.3d 747; and Swafford v. State,
1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223. The State responded
that in its view there was no double jeopardy prohibition to
imposing a sentence for each conviction to be served
consecutively. The district court agreed. Defendant appeals.
Defendant's sole argument on appeal is that she has been
convicted and sentenced in violation of her right to be free
from double jeopardy under the Fifth Amendment to the United
States Constitution. Double jeopardy challenges involve
constitutional questions of law, which we review de novo.
State v. Melendrez, 2014-NMCA-062, ¶ 5, 326
P.3d 1126. The prohibition against double jeopardy
"functions in part to protect a criminal defendant
against multiple punishments for the same offense."
Swick, 2012-NMSC-018, ¶ 10 (internal quotation
marks and citation omitted). Double jeopardy
multiple-punishment cases are divided into two
classifications: (1) multiple convictions under a single
statute are "unit of prosecution" cases, and (2)
multiple convictions under separate statutes resulting from
the same conduct are "double description" cases.
Id. This is a double description case because
Defendant argues that the same conduct resulted in two
convictions under separate statutes.
In analyzing a double description multiple-punishment claim,
we first determine whether the underlying conduct for the
offenses is unitary. Swafford, 1991-NMSC-043, ¶
25. The parties do not dispute that the conduct in this case,
Defendant running over and killing Nevarez, was unitary. When
the conduct is unitary, we then review "the statutes at
issue to determine whether the [L]egislature intended to
create separately punishable offenses." Id.;
see Swick, 2012-NMSC-018, ¶ 20 (noting that
because the prosecution did not challenge the defendant's
assertion that the conduct was unitary, the Court proceeded
to determine whether the Legislature intended multiple
punishments for that conduct). Multiple punishments for
unitary conduct are constitutionally prohibited when the
Legislature did not intend to create separately punishable
offenses. See Swick, 2012-NMSC-018, ¶¶ 24,
27 (concluding that, under the prosecution's theory of
the case, the Legislature did not intend to create separately
punishable offenses and punishment could not be had for both
convictions without violating double jeopardy).
We begin by determining whether there is an explicit
authorization for multiple punishments. See State v.
Gutierrez, 2011-NMSC-024, ¶ 50, 150 N.M. 232, 258
P.3d 1024 ("Where the [L]egislature has explicitly
authorized multiple punishment the judicial inquiry is at an
end, and multiple punishment is authorized and proper."
(alterations, internal quotation marks, and citation
omitted)). Here, neither party argues and we fail to find an
express legislative statement that multiple punishments may
be imposed for both involuntary manslaughter and aggravated
DWI that results in the death of one victim. In the absence
of an express statement of legislative intent, we apply
"the rule of statutory construction from Blockburger
v. United States, 284 U.S. 299 . . . (1932), to ensure
that each provision requires proof of a fact that the other
does not. When applying Blockburger to statutes that
are vague and unspecific or written with many ...