Gordon v. State ( 2014 )

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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Filing Date: February 13, 2014
3 DAVID GORDON,
4 Petitioner,
5 v. NO. 33,817
6 STATE OF NEW MEXICO,
7 GARY KING, Attorney General, et al.,
8 Respondents.
9 ORIGINAL PROCEEDING ON CERTIORARI
10 James Waylon Counts, District Judge
11 Jorge A. Alvarado, Chief Public Defender
12 Karl Erich Martell, Assistant Appellate Defender
13 Santa Fe, NM
14 for Petitioner
15 Gary K. King, Attorney General
16 Martha Anne Kelly, Assistant Attorney General
17 Santa Fe, NM
18 for Respondents
1 DECISION
2 BOSSON, Justice.
3 {1} On December 26, 2012, this Court granted certiorari to determine whether
4 Defendant David Gordon’s conviction for two counts of conspiracy, see NMSA 1978,
5 Section 30-28-2 (1979), violated his constitutional right to be free from double
6 jeopardy under the standard set forth in State v. Gallegos, 2011-NMSC-027, ¶¶ 55-56,
7 149 N.M. 704 254 P.3d 655 (holding that there is a rebuttable presumption of one
8 overarching conspiracy when there are multiple substantive crimes).
9 {2} For the reasons discussed below, we hold that because the State did not
10 overcome the rebuttable presumption that there was one overarching conspiracy, see
11 id., double jeopardy protections require that Gordon’s lesser conspiracy convictions
12 must be vacated. Accordingly, we remand to the district court for resentencing
13 consistent with this decision.
14 BACKGROUND
15 {3} Police obtained a search warrant for the residence at 722 Delaware, and
16 conducted surveillance “to see . . . if there was any activity of drugs sales at that time.”
17 Gordon was not named in the search warrant, but his driver’s license listed 722
18 Delaware as his residence. Police observed foot and vehicle traffic, which they felt
19 was indicative of drug trafficking activity. After assembling the search warrant team,
1 they executed the search warrant at the residence, where Gordon was sitting inside the
2 house on the couch. Police secured the residence and began the process of searching
3 and collecting drug-related evidence.
4 {4} From the residence, police seized a shaving cream can with a false
5 compartment, sandwich baggies, marijuana blunt cigars, loose marijuana in a baggie,
6 a digital scale with cocaine residue on it, baking soda, razor blades, a copper
7 scrubbing pad, two measuring cups with cocaine residue, a baby food jar, and crack
8 cocaine.
9 {5} Police found cocaine in a baggie and $590 in cash in Gordon’s pocket. Gordon
10 admitted to possessing cocaine and crack, but insisted that the amounts found in the
11 house were for personal use by himself and Angelo Smith, who also lived in the
12 residence and was also arrested, but that he was not trafficking. Gordon also admitted
13 they cooked crack at the house.
14 {6} At trial police officers testified that when interviewed, Gordon mentioned “they
15 purchased two 8-balls” of powder cocaine and “rocked up” one of them, meaning they
16 “[converted] it up to crack cocaine.” Officers also testified that the amount of drugs
17 seized was consistent with trafficking. Gordon’s latent fingerprints were identified on
18 the small measuring cup. Police discussed the process of manufacturing crack cocaine,
3
1 including how the items seized would have been used in the process. The State also
2 presented opinion evidence that the sandwich baggies and the scale were indicative
3 of drug trafficking because drug users who were not involved in trafficking would not
4 typically use those items.
5 DISCUSSION
6 {7} Double jeopardy analysis is a constitutional question we review de novo as a
7 matter of law. Gallegos, 2011-NMSC-027, ¶ 51. In Gallegos, this Court addressed the
8 question of whether multiple conspiracy convictions might raise double jeopardy
9 concerns. Id. ¶¶ 27-64. Looking at the text, history, and purpose of the New Mexico
10 conspiracy statute, see id. ¶¶ 51-54, we concluded “that the Legislature established . . .
11 a rebuttable presumption that multiple crimes are the object of one, overarching,
12 conspiratorial agreement subject to one, severe punishment set at the highest crime
13 conspired to be committed.” Id. ¶ 55. The state may present evidence of multiple
14 separate agreements; however, it has a “heavy burden” to overcome to show multiple
15 separate agreements instead of one overarching agreement. Id.
16 {8} This Court then adopted “the totality of the circumstances test utilized by the
17 federal circuits [as] the best mechanism” to determine whether there were multiple
18 agreements, thus “demonstrating the existence of more than one conspiracy.” Id. ¶ 56.
4
1 The multi-factor test analyzes whether:
2 (a) the location of the two alleged conspiracies is the same; (b) there is
3 a significant degree of temporal overlap between the two conspiracies
4 charged; (c) there is an overlap of personnel between the two
5 conspiracies, (including unindicted as well as indicted coconspirators);
6 and (d) the overt acts charged and (e) the role played by the defendant
7 . . . [in the alleged conspiracies are] similar.
8 Id. ¶ 42 (quoting United States v. Rigas, 605 F.3d 194, 213 (3d Cir. 2010)). The Court
9 also noted several related factors, including “(1) whether there was a common goal
10 among the conspirators; (2) whether the agreement contemplated bringing to pass a
11 continuous result that will not continue without the continuous cooperation of the
12 conspirators; and (3) the extent to which the participants overlap in the various
13 dealings.” Id.14 {9} In Gallegos, the conspiracy revolved around the murder of the victim by a
15 number of individuals over the course of six to eight hours, initiated through
16 kidnaping, and ultimately accomplished by a combination of drug overdose and
17 setting the victim afire after a number of unsuccessful attempts by other methods. See
18 id. ¶¶ 5-14. The defendant was convicted of three counts of conspiracy, id. ¶ 2, and
19 argued that such a conviction violated double jeopardy protections. Id. ¶ 3. We held
20 that the State did not adequately rebut the presumption that there was one,
21 overarching, conspiratorial agreement. Id. ¶ 57.
5
1 {10} Applying the totality of the circumstances test, the Court reasoned that the
2 separate conspiracy charges, relating to the multiple criminal acts charged, each
3 required the jury to determine that “[d]efendant and his confederates contemplate[d]
4 inflicting great bodily harm or death.” Id. ¶ 57. The Court found that since the
5 intended outcome of the criminal acts was similar, there should be criminal liability
6 for “no more than one, severe punishment set by statute at the ‘highest crime to be
7 committed.’” See id. Further, the “relatively short time frame . . . support[ed] the
8 existence of one conspiracy,” id. ¶ 58, where there was a series of events over the
9 course of a number of hours “which was continuous and undisturbed by any
10 intervening event.” Id. ¶ 60. Also, all the conspirators acted in concert and took part
11 in each of the substantive crimes. Id. ¶ 61. Finally, the Court noted that “the objectives
12 of a single agreement may change over time without such changes creating a new
13 agreement.” Id. ¶ 62. In this way, a number of incremental objectives may be
14 accomplished or altered in the process of accomplishing the “central objective” of the
15 conspiracy, without affecting the agreement to accomplish the central objective. See
16 id.
17 {11} In the case before us, the State argues that manufacturing crack cocaine from
18 powder cocaine (a general intent crime) is a different and distinct act from possessing
6
1 cocaine in amounts consistent with the intent to distribute (a specific intent crime),
2 and, therefore weighs in favor of finding a separate agreement. In this way, the State
3 reads Gallegos to focus on the overt acts committed. However, this reading does not
4 embrace the nuance of this Court’s analysis, nor does it address that the crime charged
5 is trafficking a controlled substance via two different means or acts. In looking at the
6 agreement or conspiracy, Gallegos focused on the fact that the intent was the same for
7 each of the conspiracy charges, see id. ¶ 57, not whether the means or overt acts used
8 to accomplish the intended objective were the same. Here, the intent is also the same.
9 {12} The State also points out that there was only one victim in Gallegos, but argues
10 here that there are different evils, if not different potential victims. Thus, the
11 agreements to manufacture and possess with intent to distribute are worthy of separate
12 punishments because manufacturing is a different evil from distributing illegal drugs.
13 For support, the State relies on the fact that crack cocaine is viewed as different and
14 more dangerous than powder cocaine. This argument makes much of the fact that the
15 molecular structure changes one drug into another, but that is not a concern reflected
16 in the trafficking statute, which covers multiple illegal drugs. See NMSA 1978, § 30-
17 31-20(A)(1), (3) (2006) (defining trafficking as manufacturing, distributing, or
18 possessing with intent to distribute any of a number of listed controlled substances
7
1 without reference to which are considered more dangerous).
2 {13} Addressing both of the State’s arguments, the substantive crime for both
3 conspiracy charges in this case is trafficking. See id. The jury instructions for both
4 conspiracy counts required the jury to determine that Gordon “intended to commit
5 Trafficking a controlled substance.” See UJI 14-2810 NMRA. Thus, as was the case
6 in Gallegos, the jury was to required to determine that Gordon had the identical intent
7 for both conspiracy charges. The objective of any agreement to traffic an illegal
8 substance is to traffic, which may be accomplished by either manufacturing or
9 possessing with an intent to distribute, either independently or in concert.
10 Nevertheless, the objective is to traffic, not solely to possess or manufacture, and
11 therefore does not weigh in favor of finding more than one agreement.
12 {14} The State further argues that the time frame is long enough to support multiple
13 agreements, because the manufacturing and the possessing were not simultaneous. But
14 simultaneity is not required when analyzing the particularities of the conspiratorial
15 time frame. Here, while the manufacturing and the possessing may have occurred on
16 different days, May 4 and May 5, Gordon was in possession of the illegal substances
17 on both days, over a period of time that it appears was continuous and undisturbed by
18 an intervening event. See Gallegos, 2011-NMSC-027, ¶ 60. Thus, this factor weighs
8
1 in favor of a single agreement.
2 {15} The State also argues for a separate agreement to possess and to manufacture,
3 emphasizing the distinctness of the crimes when it analyzes whether the conspirator’s
4 actions were overlapping and mutually dependent, but the State offers no evidence to
5 support this claim. Further, the State does not address the fact that all the conspirators
6 took part in each of the substantive crimes, a factor that weighs here, in favor of a
7 single agreement, as it did in Gallegos. See id. ¶ 61.
8 {16} The State does not address in its briefing a final consideration raised in
9 Gallegos, whether the central objective of the agreement changed or instead, whether
10 there were incremental changes to intermediate objectives that occurred in the process
11 of accomplishing the central objective of the conspiracy. See id. ¶ 62. As the
12 substantive crime in both cases is trafficking, it is unclear how the Court would
13 meaningfully distinguish whether Gordon entered into (1) an agreement to traffic by
14 manufacturing and also a separate agreement to traffic by possession or (2) one
15 overarching agreement to accomplish trafficking by both manufacturing and
16 possession. In any case, the State presented no evidence of two separate agreements,
17 which is precisely the burden we placed upon the State in Gallegos.
18 {17} Finally, in its briefing, the State did not question whether Gallegos should be
9
1 applied retroactively to habeas corpus petitions as a matter of law. Accordingly, we
2 do not address that issue in deciding this case, and leave it to a future petition for
3 resolution.
4 CONCLUSION
5 {18} We remand this case to the district court to vacate one of Gordon’s convictions
6 for conspiracy to commit trafficking of a controlled substance and resentence Gordon
7 consistent with this decision.
8 {19} IT IS SO ORDERED.
9 _________________________________
10 RICHARD C. BOSSON, Justice
11 WE CONCUR:
12 ____________________________________
13 PETRA JIMENEZ MAES, Chief Justice
14 ____________________________________
15 EDWARD L. CHÁVEZ, Justice
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1 ____________________________________
2 CHARLES W. DANIELS, Justice
3 ____________________________________
4 BARBARA J. VIGIL, Justice
11