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State v. Mann6/6/2000
ert witness' testimony to the other eleven jurors. In particular, Juror No. 7 performed probability calculations for the other jurors and wrote those calculations down on an easel. The calculations he performed and presented were not presented by Defendant's expert witness.
Defendant filed a motion for a new trial based on this information and filed a request for an evidentiary hearing to determine whether and to what extent extraneous material was considered by the jury in reaching its verdict. The trial court did not hold an evidentiary hearing, but instead, outside of the presence of both the State and Defendant, interviewed Juror No. 7 and the four other jurors that Defendant indicated had knowledge of the extraneous material. A transcript of those interviews was made available to both Defendant and the State. The trial court also informed both counsel before the scheduled interviews that if there were additional jurors they wanted to be interviewed or additional questions they requested be asked, they were to so advise the trial court. After interviewing the five jurors, the trial court ruled that the jury based its decision solely on the evidence presented at trial. The court thus denied the motion for a new trial.
II. DISCUSSION
A. Defendant's Conviction for Second-Degree Murder and Child Abuse Resulting in Death Violated Defendant's Right to be Free from Double Jeopardy
Defendant, relying on his constitutional right of protection from double jeopardy as guaranteed by the Fifth Amendment to the United States Constitution and Article II, Section 15 of the New Mexico Constitution, contends that his conviction for second-degree murder for the death of his child and his conviction for child abuse resulting in death for the death of the same child violates his right to be free from double jeopardy. See U.S. Const. Amend V; N.M. Const. art. II, ยง 15. We agree.
The double jeopardy clauses of both constitutions protect against multiple punishments for the same offense. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991). Our Supreme Court has adopted a two- part test, known as the Swafford analysis, to be used in analyzing a double jeopardy claim based upon multiple punishments for the same offense.
The first step is to ask whether the conduct underlying the offenses is unitary, i.e., whether the same conduct of the defendant violates more than one statute. The second step is to ask whether the Legislature intended to impose multiple punishments for the unitary conduct. Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial. State v. Carrasco, 1997-NMSC-047, 22, 124 N.M. 64, 946 P.2d 1075 (citations omitted; internal quotation marks omitted).
Conduct is unitary if it is not sufficiently separated by time or place, and the object and result or quality and nature of the act cannot be distinguished. See State v. Livernois, 1997-NMSC-019, 20, 123 N.M. 128, 934 P.2d 1057; State v. Contreras, 120 N.M. 486, 490, 903 P.2d 228, 232 (1995); Swafford, 112 N.M. at 13-14, 810 P.2d at 1233-34. Defendant was charged with and ultimately convicted of second-degree murder and child abuse resulting in death. The State's theory was that Defendant impaled his son in the chest with a screwdriver. It is not disputed that there was only one act, the impaling of the child with the screwdriver, and only one victim. Cf. State v. Barr, 1999-NMCA-081, 18, 127 N.M. 504, 984 P.2d 185. As a result, there was no separation of time or place, and the result, quality, and nature of the act cannot
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