State v. Fuschini

CLINGMAN, Justice.

This decision was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court. ORIGINAL PROCEEDING ON CERTIORARI
Fernando R. Macias
, District Judge Bennett J. Baur, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM for Petitioner Hector H. Balderas, Attorney General
M. Victoria Wilson, Assistant Attorney General
Santa Fe, NM for Respondent

DECISION

CLINGMAN, Justice. {1} A divided Court of Appeals affirmed the convictions of Defendant Annette Fuschini for involuntary manslaughter, contrary to NMSA 1978,Section 30-2-3(B) (1994), and aggravated driving while intoxicated (DWI) resulting in bodily injury, contrary to NMSA 1978, Section 66-8-102(D)(2) (2010, amended 2016). State v. Fuschini, 2017-NMCA-084, ¶¶ 1, 15-17, 406 P.3d 965. Defendant petitioned this Court, challenging both convictions, and we granted certiorari. See NMSA 1978,§ 34-5-14(B) (1972); Rule 12-502 NMRA. {2} The facts are undisputed. Defendant Annette Fuschini killed her fiancé by driving over him with a truck while she was intoxicated. The district court sentenced Defendant to three hundred sixty-four days in prison for aggravated DWI and eighteen months for involuntary manslaughter. Defendant now asks this Court to overturn the Court of Appeals and vacate her convictions. Defendant argues that her convictions violate her right to be free from double jeopardy and that the vehicular homicide statute preempts her involuntary manslaughter conviction. {3} Our disposition of this case is by nonprecedential decision. See Rule 12-405(B) NMRA ("The appellate court may dispose of a case by non-precedential order, decision or memorandum opinion . . . [where t]he issues presented have been previously decided by the Supreme Court or Court of Appeals . . . [or t]he issues presented are manifestly without merit."). We hold that Defendant's convictions of both aggravated DWI, as it was instructed to the jury in this case, and involuntary manslaughter violate the prohibition against double jeopardy because Defendant was convicted twice for causing one death. We vacate Defendant's conviction of aggravated DWI. We hold that preemption does not apply to the facts presented in this case, and we affirm Defendant's conviction of involuntary manslaughter.

I. BACKGROUND

{4} Defendant's convictions stem from events that occurred when Defendant was driving home with her fiancé, Carlos Nevarez III (Victim), after a night of drinking. Defendant and Victim left a party in a pickup truck with Defendant driving. Defendant admitted that she was intoxicated when she drove the truck. While driving home, Defendant and Victim started to argue. At one point during the argument, Defendant brought her truck to a sudden halt. Victim got out of the vehicle, yelled something at Defendant, and then began to walk away. Witnesses reported that Defendant drove her truck off the roadway and over a curb, steering the truck toward where Victim was walking "away from the road." Defendant drove the truck over Victim, killing him. {5} The State indicted Defendant for first-degree murder and aggravated DWI. During the trial, the State added the lesser included charge of second-degree murder. Defendant "caused the death of [Victim]" and that the district court erred by including "caused the death of [Victim]" as an element in the aggravated DWI instruction. Id. ¶¶ 10, 13. The Court of Appeals majority opinion reasoned that the error did not give rise to a double jeopardy issue because the aggravated DWI statute is not intended to be a homicide statute. Id. ¶¶ 12-13. The majority determined that the Legislature intended multiple punishments for involuntary manslaughter and aggravated DWI. Id. ¶ 14. Satisfied that legislative intent was clear, the divided Court of Appeals affirmed Defendant's convictions. Id. ¶ 15. {7} Defendant appeals both convictions in this Court.

II. DISCUSSION

{8} We begin our analysis with Defendant's double jeopardy claim. We then assess Defendant's complaint that the involuntary manslaughter conviction must be vacated on preemption grounds.

A. Double Jeopardy Claim

{9} "A double jeopardy challenge presents a question of constitutional law, which we review de novo." State v. Torres, 2018-NMSC-013, ¶ 17, 413 P.3d 467. Both the United States Constitution and the New Mexico Constitution establish a criminal defendant's right to be free from multiple convictions for the same offense. U.S. Const. amend. V; N.M. Const. art. II, § 15. There are two ways in which double {13} The actual instructions to the jury in this case did not reflect the Legislature's intent. In fact, the actual jury instruction directly contradicted the legislative intent that aggravated DWI is not a statute to punish homicide. Instruction eleven reflected UJI 14-4507, aggravated DWI, element for element except for element 3 and stated the following elements:

(1) [D]efendant operated a motor vehicle;
(2) At that time [D]efendant was under the influence . . . [;] that is, . . . [D]efendant was less able to the slightest degree, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle a vehicle with safety to the person and the public;
(3) [D]efendant caused the death of [Victim]; [and]
(4) This happened in New Mexico, on or about the 12th day of June, 2013.

(Emphasis added.) {14} In addition to instruction eleven, instruction seven did reflect UJI 14-231 NMRA, involuntary manslaughter, element for element and stated the following elements:

(1) [D]efendant ran over [Victim] with a vehicle;
(2) [D]efendant should have known of the danger involved in her actions;
(3) [D]efendant acted with a willful disregard for the safety of others;
(4) [D]efendant's act caused the death of [Victim]; [and]
(5) This happened in New Mexico on or about the 12th day of June, 2013.

(Emphasis added.) of a single victim. {22} We vacate Defendant's conviction for aggravated DWI. See Montoya, 2013-NMSC-020, ¶ 55 (stating that "where one of two otherwise valid convictions must be vacated to avoid violation of double jeopardy protections, we must vacate the conviction carrying the shorter sentence").

B. Preemption Claim

{23} Defendant argues for the first time, not having raised the argument in the courts below, that involuntary manslaughter caused by DWI is a nonexistent crime, that the vehicular homicide statute preempts involuntary manslaughter in such a case, and that Defendant's conviction of involuntary manslaughter constitutes fundamental error. See State v. Yarborough, 1996-NMSC-068, ¶¶ 29-30, 122 N.M. 596, 930 P.2d 131 (holding that "the legislature intended to preempt the crime of involuntary manslaughter with the specific crime of homicide by vehicle when the predicate offense is a [misdemeanor] violation of the Motor Vehicle Code"); see also State v. Cabezuela, 2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705 ("[B]ecause this claim was not preserved [at trial], we review only for fundamental error."). When our Legislature created the first homicide by vehicle statute in 1978, now Section 66-8-101, the Legislature intended to "require that prosecutions for unintentional homicide by operation of a motor vehicle be brought only under the homicide by namely, the orderly and equitable administration of justice." (citation omitted)), disapproved of on other grounds by State v. Henderson, 1990-NMSC-030, ¶¶ 14-15, 109 N.M. 655, 789 P.2d 322. "A party may not be rewarded . . . when it invites jury instruction error and subsequently complains about that very error." State v. Ortega, 2014-NMSC-017, ¶ 34, 327 P.3d 1076, 1087 (citing Estate of Gutierrez ex rel. Jaramillo v. Meteor Monument, L.L.C., 2012-NMSC-004, ¶ 34, 274 P.3d 97). "We have consistently followed the ethical maxim that 'no party can profit by [its] own wrong.'" Proper v. Mowry, 1977-NMCA-080, ¶¶ 64, 69-70, 90 N.M. 710, 568 P.2d 236 (citations omitted) (dismissing a complaint that a jury instruction was reversible error, as opposed to invited error, where the complaining party imposed the error). {26} We reject Defendant's preemption argument because the instruction on involuntary manslaughter was given at Defendant's request. See State v. Young, 1994-NMCA-061, ¶ 3, 117 N.M. 688, 875 P.2d 1119, cert. denied ("[A d]efendant may not claim on appeal that an instruction given at his request was error.").

III. CONCLUSION

{27} We reverse the Court of Appeals and remand to the district court to vacate Defendant's conviction of aggravated DWI. We affirm Defendant's conviction of involuntary manslaughter.

{28} IT IS SO ORDERED.

/s/ _________

GARY L. CLINGMAN
, Justice

WE CONCUR:

/s/ _________
JUDITH K. NAKAMURA
, Chief Justice /s/ _________
PETRA JIMENEZ MAES
, Justice /s/ _________
CHARLES W. DANIELS
, Justice /s/ _________
BARBARA J. VIGIL
, Justice