1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 29,788 10 DAVID GORDON, 11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 13 James Waylon Counts, District Judge
14 Gary K. King, Attorney General 15 Margaret E. McLean, Assistant Attorney General 16 Joel Jacobsen, Assistant Attorney General 17 Santa Fe, NM
18 for Appellee
19 Liane E. Kerr 20 Albuquerque, NM
21 for Appellant
22 MEMORANDUM OPINION 23 CASTILLO, Chief Judge.
1 Defendant argues that double jeopardy principles preclude his separate 2 convictions for trafficking/manufacturing and trafficking/possession with intent to 3 distribute and also preclude his separate convictions for two counts of conspiracy. 4 Additionally, he asserts that his statements to police should have been suppressed 5 because they were involuntary. We reject these arguments and affirm, but remand to 6 correct an apparent error in the judgment and sentence. 7 BACKGROUND 8 In May 2007, law enforcement officers executed a warrant to search Angelo 9 Smith’s home in Alamogordo, New Mexico. The officers encountered Smith outside 10 the home, detained him, and proceeded inside. There, they encountered Defendant 11 and another person and discovered marijuana, cocaine, crack cocaine, drug 12 paraphernalia, and drug manufacturing equipment. 13 Defendant was searched, and the officers discovered the following in his 14 pockets: 3.5 grams of cocaine, 3.4 grams of crack cocaine, and $590 in cash. 15 Defendant was arrested and, during an interview at the police station, admitted that 16 he and Smith had manufactured crack cocaine. The officers confirmed, through 17 subsequent investigation, that Defendant intermittently resided at Smith’s home and 18 paid some of the bills. Defendant was charged with one count of trafficking 19 (manufacturing) in violation of NMSA 1978, Section 30-31-20(A)(1) (2006); one
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1 count of trafficking (possession with intent to distribute) in violation of Section 30-31- 2 20(A)(3); two counts of conspiracy in violation of NMSA 1978, Section 30-28-2 3 (1979); possession of marijuana; possession of drug paraphernalia; and possession of 4 forfeitable property. 5 Prior to his jury trial, Defendant moved, pursuant to State v. Franklin, 78 N.M. 6 127, 129, 428 P.2d 982, 984 (1967) and State v. Boyer, 103 N.M. 655, 658-60, 712 7 P.2d 1, 4-6 (Ct. App. 1985), to suppress his statements to the police on the basis that 8 he was allegedly under the influence of cocaine at the time of the interview and, 9 therefore, did not voluntarily waive his rights under Miranda v. Arizona, 384 U.S. 436 10 (1966). The district court denied the motion, and a recording of his statements were 11 played at trial. Defendant was convicted on all counts. 12 After trial, Defendant filed a motion to dismiss notwithstanding the verdict 13 wherein he argued, citing double jeopardy principles, that the Court should have 14 merged the two trafficking charges and should have merged the two conspiracy 15 charges. As to the trafficking charges, Defendant claimed that “[t]here were not 16 ‘sufficient indicia of distinctness’ necessary to support convictions for both 17 manufacture and for possession with intent to distribute[.]” As to the conspiracy 18 charges, Defendant argued that there was evidence of only one agreement between 19 Defendant and Smith. The district court denied the motion. The court observed that,
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1 as to the trafficking issue, the evidence underlying each charge was distinct: 2 Defendant not only possessed crack cocaine with intent to distribute but also testified 3 that he “was engaged in rocking up some cocaine.” Regarding conspiracy, the court 4 noted that the jury had found that Defendant both conspired to possess narcotics and 5 also conspired to manufacture them. Defendant was sentenced and now appeals. 6 DISCUSSION 7 On appeal, Defendant argues that the district court erred in denying his motion 8 to dismiss and claims that his double jeopardy rights were violated when he was 9 convicted of both trafficking charges and were also violated when he was convicted 10 of both conspiracy charges. He then argues that the district court erred in denying his 11 suppression motion and claims that his statements to the police following his arrest 12 were “neither knowing or voluntary.” We begin with the double jeopardy issue. 13 Double Jeopardy 14 “A double jeopardy claim is a question of law that we review de novo.” State 15 v. Bernal, 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289. “The double jeopardy 16 clause of the fifth amendment, made applicable to the states by the fourteenth 17 amendment due process clause provides: [N]or shall any person be subject for the 18 same offence to be twice put in jeopardy of life or limb . . . .” Swafford v. State, 112 19 N.M. 3, 7, 810 P.2d 1223, 1227 (1991) (alterations in original) (internal quotation
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1 marks and citation omitted). The United States Supreme Court has previously “stated 2 a tripartite model of the double jeopardy clause: It protects against a second 3 prosecution for the same offense after acquittal. It protects against a second 4 prosecution for the same offense after conviction. And it protects against multiple 5 punishments for the same offense.” Id. Defendant has invoked the last of these three 6 protections. 7 “In multiple punishment cases there are two types of potential issues: (1) 8 multiple violations of the same statute, referred to as ‘unit of prosecution’ cases; and 9 (2) violations of multiple statutes, referred to as ‘double-description’ cases.” State v. 10 Collins, 2007-NMCA-106, ¶ 18, 142 N.M. 419, 166 P.3d 480 (internal quotation 11 marks and citation omitted). Defendant’s arguments concerning the trafficking 12 charges—that he should not have been charged or convicted of two different 13 trafficking charges for the criminal conduct he engaged in—implicates the double 14 description analysis. See State v. Swick, 2010-NMCA-098, ¶ 27, 148 N.M. 895, 242 15 P.3d 462 (“When convictions under separate subsections of a single statute are at 16 issue, we apply the double-description analysis.”), cert. granted, 2010-NMCERT-010, 17 149 N.M. 65, 243 P.3d 1147. Defendant’s arguments relating to the conspiracy 18 charges—that he should not have been charged or convicted of two identical counts 19 of conspiracy for his conduct—implicates the unit of prosecution analysis. We first
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1 address the trafficking issue and then examine Defendant’s conspiracy claims.
2 Trafficking 3 Defendant incorrectly asserts that the trafficking issue implicates the unit of 4 prosecution analysis. The double jeopardy arguments Defendant raises relate to two 5 different charges of trafficking under different subsections of the statute, so we apply 6 the double description analysis. Id. Despite this error, we proceed to the merits of 7 Defendant’s claims. 8 The double description analysis is well settled.
9 We address double-description claims using the two-part test set forth by 10 our Supreme Court in Swafford . . . . Under Swafford, we first examine 11 whether the defendant’s conduct was unitary, meaning that the same 12 criminal conduct is the basis for both charges. If the conduct is not 13 unitary, then the inquiry is at an end and there is no double jeopardy 14 violation. If the conduct is unitary, the second prong of the Swafford test 15 requires us to determine whether the [L]egislature intended multiple 16 punishments for the unitary conduct.
17 State v. Contreras, 2007-NMCA-045, ¶ 20, 141 N.M. 434, 156 P.3d 725 (internal 18 quotation marks and citations omitted). 19 Turning to the first prong of our analysis, whether the conduct was unitary, 20 “[t]he proper analytical framework is whether the facts presented at trial establish that 21 the jury reasonably could have inferred independent factual bases for the charged 22 offenses.” State v. Franco, 2005-NMSC-013, ¶ 7, 137 N.M. 447, 112 P.3d 1104
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1 (internal quotation marks and citation omitted). We examine “the elements of the 2 charged offenses and the facts presented at trial.” Id. (internal quotation marks and 3 citation omitted). We apply this framework. 4 The jury was given different instructions for the two distinct trafficking 5 charges. On the trafficking/possession with intent to distribute charge, the jury was 6 instructed that the essential elements included the following: (1) The Defendant had 7 cocaine in his possession. (2) The Defendant knew it was cocaine, believed it to be 8 cocaine. (3) The Defendant intended to transfer it to another. As to the 9 trafficking/manufacturing charge, the jury was instructed that the essential elements 10 included: “1. The Defendant manufactured cocaine; 2. The Defendant knew it was 11 cocaine[.]” We turn now to the evidence presented at trial. 12 As described above, officers discovered numerous grams of cocaine and crack 13 cocaine on Defendant’s person. At trial, one of the officers was asked about this 14 evidence, and he provided the following information. The specific amount of cocaine 15 in Defendant’s pocket, 3.5 grams, is known in the drug trade as an “8 ball.” An 8 ball 16 is approximately 1/8 of an ounce or 3.5 grams. The street value of an 8 ball is roughly 17 $700. Possession of an 8 ball is highly indicative of drug distribution as most cocaine 18 is sold in small increments. 19 There was also evidence presented as to the separate matter of Defendant’s role
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1 in the manufacturing of crack cocaine at Smith’s house. Smith was not on the 2 premises at the time law enforcement executed the search warrant. No manufacturing 3 was taking place at that time. At trial, however, Defendant acknowledged that during 4 his interrogation he admitted to “cooking.” During the State’s cross examination of 5 Defendant, the following exchange occurred:
6 Q: Let’s talk about cooking for a moment. Do you recall hearing 7 your taped statement yesterday? 8 A: Yes. 9 Q: I want to talk about what you told the police. Do you recall that 10 you told the police that you and [Smith] cooked up or rocked up 11 crack cocaine in that kitchen? 12 A: Yes. 13 Q: Is that a true statement? 14 A: Um. [seventeen seconds of silence] Yes.
15 We have little difficulty concluding that the jury could have reasonably inferred 16 independent factual bases for the trafficking/possession with intent to distribute charge 17 and the trafficking/manufacturing charge. The facts underlying both charges are 18 completely independent. The possession with intent to distribute charge was 19 supported by evidence that Defendant possessed an amount of cocaine consistent with 20 an intent to distribute. As a separate matter, Defendant admitted to manufacturing 21 crack cocaine with Smith. Accordingly, we conclude that the conduct is not unitary 22 as the charges were based on different and independent criminal conduct. Having 23 reached this conclusion, we need not further address Defendant’s double jeopardy
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1 claim regarding the trafficking charges. See Contreras, 2007-NMCA-045, ¶ 20.
2 Conspiracy 3 Defendant’s presentation of the conspiracy issue is not clear to us. Although 4 Defendant variously refers to the conspiracy issue in his point headings, Defendant 5 actually dedicates only a page and a half of his brief in chief to the specific question 6 he wishes us to review: whether double jeopardy principles precluded the district 7 court from charging or convicting Defendant of two separate counts of conspiracy in 8 violation of Section 30-28-2. Defendant did not submit a reply brief. 9 In the page and a half dedicated exclusively to the conspiracy issue, Defendant 10 directs us to a number of cases that do not concern double jeopardy. Rather, the cases 11 Defendant cites address whether there was sufficient evidence to support multiple 12 conspiracy charges. Without direction as to what evidence was lacking relating to the 13 agreements underlying the conspiracies, we are unable to evaluate this argument. The 14 one case Defendant does cite that touches on double jeopardy and conspiracy, State 15 v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114, is inapposite. In Armijo, 16 we addressed whether a defendant’s “convictions for aggravated assault and 17 conspiracy to commit aggravated assault” violated double jeopardy. Id. ¶ 11. Our 18 analysis was limited as the State conceded that the conspiracy charge should be
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1 reversed. Id. The State correctly observes that Defendant has not attacked the 2 sufficiency of the evidence. 3 Moreover, we have reviewed Defendant’s conspiracy arguments and they 4 remain unclear to us. The argument heading seems to challenge whether any 5 agreement was made, but as we have noted, there is no challenge to the evidence. 6 Whatever points Defendant intended to make, we could not discern them. For this 7 reason, we conclude that Defendant has failed to clearly state or adequately develop 8 the argument that double jeopardy principles precluded charging and convicting him 9 of two conspiracy charges, and we decline to engage in any further review of the 10 issue. See Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 11 110 P.3d 1076 (stating that we do not review unclear or inadequately developed 12 arguments). 13 Motion to Suppress 14 Finally, Defendant argues that his waiver of his rights under Miranda, 384 U.S. 15 436, was not voluntarily, knowingly, and intelligently given because he was under the 16 influence of cocaine at the time he waived his rights and gave a statement. This 17 argument was initially raised at trial pursuant to Franklin and Boyer. 18 “On appeal, we review the [district] court’s findings of fact for substantial 19 evidence and review de novo the ultimate determination of whether a defendant
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1 validly waived his or her Miranda rights prior to police questioning.” State v. 2 Barrera, 2001-NMSC-014, ¶ 23, 130 N.M. 227, 22 P.3d 1177. “In response to a 3 defendant’s motion to suppress a statement made to police, the [s]tate bears the burden 4 of demonstrating by a preponderance of the evidence that the defendant knowingly, 5 intelligently, and voluntarily waived the constitutional right against 6 self-incrimination.” State v. Martinez, 1999-NMSC-018, ¶ 14, 127 N.M. 207, 979 7 P.2d 718. “The [s]tate must demonstrate that the waiver of rights was the product of 8 a free and deliberate choice . . . and that it was made with a full awareness of both the 9 nature of the right being abandoned and the consequences of the decision to abandon 10 it.” Id. (internal quotation marks and citation omitted). This Court will “evaluate the 11 totality of the circumstances and the particular facts, including consideration of the 12 mental and physical condition, background, experience, and conduct of the accused, 13 as well as the conduct of the police, in determining whether the [s]tate has 14 successfully carried its burden in demonstrating a knowing and voluntary waiver.” 15 Id. (internal quotation marks and citation omitted). 16 The district court held a hearing on Defendant’s motion to suppress evidence. 17 Agent Steve Guthrie testified that Defendant appeared to understand the questions, 18 had good memory recall, and did not appear to be under the influence of drugs. Agent 19 Guthrie also testified as to the substance of the warnings given, which included
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1 advising Defendant that he could stop answering questions at any time. Defendant 2 also testified at the hearing on the motion, and he recalled the substance of his 3 conversation with the officer over a year earlier. In denying the motion to suppress, 4 the district court recited findings consistent with the evidence before it indicating that 5 Defendant understood his rights under Miranda and knowingly, intelligently, and 6 voluntarily waived them. We affirm the denial of Defendant’s motion to suppress his 7 post-arrest statement. 8 Correction of Judgment and Sentence 9 We observe that the district court’s “Judgment and Partially Suspended 10 Sentence” entered on July 6, 2009, is inconsistent with the charging documents and 11 the jury’s verdict. Count three and four charged Defendant with conspiracy. The jury 12 was correctly instructed regarding counts three and four. The judgment and sentence, 13 however, describes count three as “Trafficking Controlled Substances (Possession 14 with Intent) (Narcotic or Meth) (1st Offense), [Section] 30-31-20(A)(3), a 2nd degree 15 felony” and similarly describes count four as “Trafficking Controlled Substances 16 (Manufacturing) (1st Offense) - Conspiracy, [Section] 30-31-20(A)(1), a 2nd degree 17 felony[.]” Remand is necessary to allow the district court address this inconsistency. 18 CONCLUSION 19 For the reasons stated, we affirm Defendant’s convictions for trafficking in
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1 violation of Section 30-31-20(A)(1) and (3), affirm Defendant’s convictions for 2 conspiracy in violation of Section 30-28-2, and affirm the district court’s denial of 3 Defendant’s motion to suppress. We remand this matter to the district court so it can 4 correct the judgment and sentence. 5 IT IS SO ORDERED.
6 __________________________________ 7 CELIA FOY CASTILLO, Chief Judge
8 WE CONCUR:
9 __________________________________ 10 JAMES J. WECHSLER, Judge
11 __________________________________ 12 LINDA M. VANZI, Judge