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State v. Cummings

Court of Appeals of New Mexico

June 28, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
EL RICO CUMMINGS, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY JAMES WAYLON COUNTS, DISTRICT JUDGE

          Hector H. Balderas, Attorney General Eran Sharon, Assistant Attorney General Santa Fe, NM for Appellee

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

          OPINION

          Linda M. Vanzi, Chief Judge

         {¶1} Following entry of a conditional plea, Defendant El Rico Cummings appeals his convictions for possession of a firearm by a felon, contrary to NMSA 1978, Section 3 0-7-16(A) (2001), and receiving stolen property, contrary to NMSA 1978, Section 30-16-11 (A) (2006). Defendant argues that (1) his convictions violate double jeopardy because they are based on the same firearm, and (2) the district court erred in denying his motion to suppress because an officer exceeded the scope of the search warrant when he forcibly opened a locked safe. Because we hold that (1) there was no double jeopardy violation and (2) the district court did not err in denying Defendant's motion to suppress, we affirm.

         BACKGROUND

         {¶2} The pertinent facts are undisputed. On June 9, 2013, the Alamogordo Police Department obtained and served an arrest warrant and a search warrant on Defendant at his home as part of an investigation into a shooting. Relevant here, the search warrant-the validity of which is not disputed-authorized police to search Defendant's home for firearms, ammunition, weapons or tools, cell phones, prescription and illegal narcotics and paraphernalia, documentation of the premises, and records as to the state of mind of the subjects of the warrant, including diaries or journals. The parties agree that the search warrant did not specifically mention a lockbox or a safe.

         {¶3} At the hearing on Defendant's motion to suppress, an officer testified that while searching the house, he found a locked safe that was large enough to hold a firearm. According to the officer, when he was "handling the safe," it sounded like it had a metal object inside and had some weight to it. Neither Defendant nor his sister gave permission to the officers to search the safe, and neither Defendant nor his sister had a key to the safe available. Defendant later testified that he kept private things in his safe, such as bank statements and identity documents, including birth certificates and social security numbers.

         {¶4} The officer removed the safe to the police station for further investigation and opened it there. Although the officer did not obtain a second search warrant, he testified that he could have done so, and he conceded that there were not otherwise any exigent circumstances. The officer did not find the gun that he was looking for inside the safe, but instead found a different firearm that formed the basis for the two charges against Defendant for possession of a firearm by a felon and receiving stolen property. Defendant entered a no contest plea to both charges, reserving his right to appeal the denial of his motion to suppress.

         DISCUSSION

         Double Jeopardy

         {¶5} Defendant first argues that, because they are based on the same firearm, his convictions for felon in possession of a firearm and receiving stolen property violate double jeopardy. Defendant did not reserve a double jeopardy argument in his conditional plea. Nevertheless, double jeopardy claims are not subject to waiver and can be raised at any time before or after entry of a judgment. See NMSA 1978, § 30-1-10 (1963). Moreover, this Court has held that a guilty plea does not necessarily waive a claim of double jeopardy, although the defendant should reserve the issue in the plea agreement and must present a record capable of review for this Court to engage in a unitary conduct double jeopardy analysis. See State v. Sanchez, 1996-NMCA-089, ¶¶ 10-11, 14, 122 N.M. 280, 923 P.2d 1165.

         {¶6} We generally apply a de novo standard of review to the constitutional question of whether there has been a double jeopardy violation. State v. Andazola, 2003-NMCA-146, ¶ 14, 134 N.M. 710, 82 P.3d 77. The Double Jeopardy Clause "has been held to incorporate a broad and general collection of protections against several conceptually separate kinds of harm: (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. Montoya, 2013-NMSC-020, ¶ 23, 306 P.3d 426 (internal quotation marks and citation omitted). The present case deals with the question of whether Defendant has received multiple punishments for the same offense.

         {¶7} For the double jeopardy prohibition against multiple punishments, there are two types of cases: (1) when a defendant is charged with violations of multiple statutes for the same conduct, referred to as "double description" cases; and (2) when a defendant is charged with multiple violations of the same statute based on a single course of conduct, referred to as "unit of prosecution" cases. State v. DeGraff, 2006-NMSC-Oll, ¶25, 139N.M.211, 131 P.3d 61 (internal quotation marks omitted). The present case is a double description case. For such cases, we apply the two-part test set forth inSwaffordv. State,1991-NMSC-043, ¶9, 112N.M. 3, 8lOP.2d 1223: (1) whether the conduct is unitary, and (2) if so, whether the Legislature intended to punish the offenses separately. State v. Silvas,2015-NMSC-006, ¶ 9, 343 P.3d 616. "Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double ...


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