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State v. Dominguez1/27/2005
and wounded the man who exited the other group's car, Vince Martinez. Three witnesses, one from Solisz's group and two from Defendant's group who were in a different car than the one Defendant was driving, testified to seeing numerous flashes of gunfire from the driver's side of Defendant's car, which would have been where Defendant was sitting. Experts linked two separate Glock .40 handguns to the shootings , and the evidence was consistent with each victim being shot with a different Glock .40 handgun. A member of Defendant's group testified that when Defendant and McClaugherty returned to McClaugherty's apartment after the shooting each was carrying a handgun consistent with a Glock .40. This witness testified that Defendant and McClaugherty bragged about the shooting to their friends immediately after the incident.
II. Voluntary Manslaughter and Shooting at or from a Motor Vehicle
Defendant contends that his convictions of voluntary manslaughter and shooting at or from a motor vehicle in relation to the death of Solisz violates the protection against double jeopardy. The Double Jeopardy Clause in the United States Constitution, applicable in New Mexico through the Fourteenth Amendment, provides that a defendant shall not "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This provision protects against multiple prosecutions for the same offense and against multiple punishments for the same offense arising out of a single prosecution. However, for multiple punishments such as Defendant's convictions of voluntary manslaughter and shooting at a motor vehicle, the Double Jeopardy Clause only prevents a court from imposing greater punishment than the Legislature intended. Swafford v. State, 112 N.M. 3, 7, 810 P.2d 1223, 1227 (1991). " he sole limitation on multiple punishments is legislative intent." Id. at 13, 810 P.2d at 1233. We have adopted a two-part test for determining whether multiple punishments violate the constitutional protection against double jeopardy. Id. We ask, first, "whether the conduct underlying the offense is unitary" and, second, "whether the egislature intended to create separately punishable offenses. Id.
In this case, the parties do not dispute that the convictions of voluntary manslaughter and shooting at or from a motor vehicle are based on the unitary conduct of Defendant aiding and abetting McClaugherty's shooting of Solisz. Our analysis therefore focuses on legislative intent. "If the egislature expressly provides for multiple punishments, the double jeopardy inquiry must cease. Absent a clear expression of legislative intent, a court first must apply the [test established in Blockburger v. United States, 284 U.S. 299, 304 (1932)] to the elements of each statute." Swafford, 112 N.M. at 14, 810 P.2d at 1234 (citation omitted). This elements inquiry asks "whether each provision requires proof of a fact which the other does not." Blockburger, 284 U.S. at 304.
The rationale underlying the Blockburger test is that if each statute requires an element of proof not required by the other, it may be inferred that the egislature intended to authorize separate application of each statute. Conversely, if proving violation of one statute always proves a violation of another (one statute is a lesser included offense of another, i.e., it shares all of its elements with another), then it would appear the egislature was creating alternative bases for prosecution, but only a single offense.
Swafford, 112 N.M. at 9, 810 P.2d at 1229. Based on this rationale, " f that test establishes that one statute is subsumed within the other, the inquiry is over and the statutes are the same for double
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