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State v. Fuschini

Court of Appeals of New Mexico

April 25, 2017

STATE OF NEW MEXICO, Plaintiff-Appellee,
ANNETTE C. FUSCHINI, Defendant-Appellant.

         APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY Fernando R. Macias, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM M. Victoria Wilson, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant


          JONATHAN B. SUTIN, Judge.

         {1} 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's convictions.


         {2} 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.

         {3} 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.

         {4} 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 DWI.

         {5} 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.


         {6} 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.

         {7} 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).

         {8} 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 ...

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