[Amendment V] [Rights of Accused in Criminal Proceedings].

Generally.

Abatement.

Appeal.

Applicability.

Assessment.

Collateral estoppel.

Comments on defendant’s silence.

Compensation.

Construction.

Construction with other law.

Custodial interrogation.

Custody.

Damages.

Defenses.

Discovery.

           —Right not to respond.

Double jeopardy.

           —Contributing to the delinquency of minors.

           —Effect of acquittal.

           —Kidnapping.

           —Mistrial.

           —Receiving stolen property.

Due process.

Eminent domain.

Estoppel.

Evidence.

           —Generally.

           —Admissible.

Failure to testify.

Felony murder.

Fraud.

Grand jury.

Habeas corpus.

Hearing.

Included offenses.

Indictment.

Instructions.

Intent, knowledge.

Jurors.

Just compensation in condemnation actions.

Murder and firearms offenses.

Murders.

Other hearsay.

Paternity.

Pleas.

Procedure.

           —Pretrial.

           —Trial.

Property right.

Prosecution comment.

Prosecutorial discretion.

Psychiatric examination.

Purpose.

Search.

Self-incrimination.

Sentence enhancement.

Separate or multiple offenses.

Taking.

Termination of parental rights.

Unitary conduct.

Voluntary statements.

Waiver.

Warrant.

           —Exceeded.

Weapons offenses.

Witnesses.

The trial court properly found that jeopardy attached in the City’s prior civil forfeiture proceeding under New Mexico’s Controlled Substances Act, 30-31-1 to 30-31-40 NMSA 1978, against defendants’ vehicle when a stipulated order of dismissal was filed returning the vehicle to the manufacturer’s credit agency as the City conditioned its dismissal of the forfeiture proceeding on the prohibition of the return of the vehicle to defendants. State v. Tijerino, 2004-NMCA-039, 135 N.M. 313, 87 P.3d 1095, 2004 N.M. App. LEXIS 13 (N.M. Ct. App. 2004).

Defendant could not bar his prosecution under the doctrine of nonmutual collateral estoppel under U.S. Const. amends. V and 30-1-13 and 39-3-3B NMSA 1978 because the state in a criminal case could not appeal an erroneous jury acquittal that resulted from compromise, mistake, nullification, passion, prejudice, or other irrational reason. State v. Arevalo, 2002-NMCA-062, 132 N.M. 306, 47 P.3d 866, 2002 N.M. App. LEXIS 48 (N.M. Ct. App.), cert. denied, 132 N.M. 288, 47 P.3d 447, 2002 N.M. LEXIS 202 (N.M. 2002).

After the State violated Rule 11-615 NMRA and could not introduce previously undisclosed evidence, the trial court dismissed indictments against defendants for embezzlement or larceny over $ 250.00, violations of 30-16-8, 30-16-1, and 30-28-2 NMSA 1978, because the State could not prove the value of the thing that was stolen, as was required by Rules 14-1601 and 14-1641 NMRA 1978. Because the trial court adjudicated defendants’ innocence, the state’s appeal was dismissed on double jeopardy grounds under the Fifth and Fourteenth Amendments, as codified by N.M. Const. art VI  § 15, and 39-3-3C NMSA 1978. State v. Archuleta, 1991-NMCA-032, 112 N.M. 55, 811 P.2d 88, 1991 N.M. App. LEXIS 142 (N.M. Ct. App.), cert. denied, 112 N.M. 21, 810 P.2d 1241, 1991 N.M. LEXIS 152 (N.M. 1991).

There was no constitutional bar based upon the doctrine of merger and the guarantee against double jeopardy contained in U.S. Const. amends. V and N.M. Const. art II  § 15 to charging defendant with violations of 30-23-3 NMSA 1978 relating to the making of false public vouchers, and 30-16-6 NMSA 1978 relating to fraud where the counts of making false public voucher did not merge with the fraud counts where there was no prior prosecution of defendant on any of the charges and any contention that imposition of consecutive sentences for both fraud and making false public voucher arising out of the same act would constitute multiple punishment was premature because defendant had not been convicted of any of the charges, much less sentenced. State v. Ellenberger, 1981-NMSC-056, 96 N.M. 287, 629 P.2d 1216, 1981 N.M. LEXIS 2323 (N.M. 1981).

The Fifth Amendment does not automatically preclude self-incrimination, whether spontaneous or in response to questions put by government officials, and does not preclude a witness from testifying voluntarily in matters which may incriminate him. State v. Harge, 1979-NMCA-120, 94 N.M. 11, 606 P.2d 1105, 1979 N.M. App. LEXIS 726 (N.M. Ct. App. 1979), overruled,  Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244, 1981 N.M. LEXIS 2392 (N.M. 1981).

Once a person is arrested and has asserted his right to counsel he may, upon receiving new and adequate “Miranda warnings,” change his mind for reasons satisfactory to himself and voluntarily submit to questioning. State v. Greene, 1977-NMSC-111, 91 N.M. 207, 572 P.2d 935, 1977 N.M. LEXIS 1112 (N.M. 1977), disapproved as stated in Solem v. Stumes, 465 U.S. 638, 104 S. Ct. 1338, 79 L. Ed. 2d 579, 1984 U.S. LEXIS 36 (U.S. 1984).

Once the right to counsel has been effectively invoked, the State bears a heavy burden in demonstrating that a subsequent waiver is knowing and voluntary. State v. Greene, 1977-NMSC-111, 91 N.M. 207, 572 P.2d 935, 1977 N.M. LEXIS 1112 (N.M. 1977), disapproved as stated in Solem v. Stumes, 465 U.S. 638, 104 S. Ct. 1338, 79 L. Ed. 2d 579, 1984 U.S. LEXIS 36 (U.S. 1984).

During defendant’s felony murder trial, he did not receive ineffective assistance of counsel in violation of U.S. Const. amends. V §§ VI, or XIV, or N.M. Const.  art. II, §§ XIV or XVIII; there was no showing whatsoever that trial counsel did not use a normal and customary degree of skill under the circumstances of the case, and the trial did not result in a sham, farce, or mockery of justice. State v. Trivitt, 1976-NMSC-004, 89 N.M. 162, 548 P.2d 442, 1976 N.M. LEXIS 794 (N.M. 1976).

In a prosecution of defendants for murder, who were husband and wife, the failure of the police to record a statement of defendant husband was not a denial of defendants’ right to due process because both defendant husband and an officer testified to the missing evidence when they took the stand. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, 1972 N.M. App. LEXIS 731 (N.M. Ct. App.), cert. denied, 83 N.M. 631, 495 P.2d 1078, 1972 N.M. LEXIS 965 (N.M. 1972).

Former Code 1915, §§ 265, 266, 267, and 268, under which a well supervisor repaired landowners’ wells which had become a nuisance, were not violative of U.S. Const. amends. V §§ or XIV, nor N.M. Const. arts. II, § 18 or II, § 20, as the common law right to summarily abate a nuisance did not conflict with constitutional provisions protecting property rights. Eccles v. Ditto, 1917-NMSC-062, 23 N.M. 235, 167 P. 726, 1917 N.M. LEXIS 65 (N.M. 1917).

State’s appeal, pursuant to Rule 12-502 NMRA, of an appellate court’s affirmation of a trial court order suppressing evidence related to a rock allegedly used to batter a victim in the trial of defendant charged with aggravated battery with a deadly weapon, in violation of 30-3-5A & C NMSA 1978, was successful because the State’s failure to photograph the rock, rather than collect it as physical evidence, was a judgment call and not anything more than mere inadvertence or ordinary negligence on the part of the police, and because defendant’s due process rights, as guaranteed by N.M. Const. art II  § 18 and U.S. Const. amends. V, were not violated, suppression of the evidence of the rock was inappropriate. State v. Ware, 1994-NMSC-091, 118 N.M. 319, 881 P.2d 679, 1994 N.M. LEXIS 337 (N.M. 1994).

Because the conviction of defendant of criminal sexual penetration in the second degree required no intent to kill the victim or use a deadly weapon, defendant’s conviction of attempted first-degree murder and criminal sexual penetration in the second degree did not violate his double jeopardy protection of U.S. Const. amends. V. State v. Traeger, 2000-NMCA-015, 128 N.M. 668, 997 P.2d 142, 2000 N.M. App. LEXIS 3 (N.M. Ct. App. 2000), cert. denied, 128 N.M. 689, 997 P.2d 821, 2000 N.M. LEXIS 82 (N.M. 2000), aff'd in part and rev'd in part, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518, 2001 N.M. LEXIS 257 (N.M. 2001).

Defendant’s double jeopardy rights under the Fifth Amendment applicable to the states under the Fourteenth Amendment were violated where he began serving a 90-day sentence upon his conviction for two counts of fraudulent use of a credit card and his sentence was enhanced by eight years in a subsequent habitual offender hearing. Defendant’s reasonable expectation in the finality of the length and structure of the underlying sentence existed regardless of whether the sentence was ultimately enhanced or that the underlying sentence had not been reduced to writing. State v. Porras, 1999-NMCA-016, 126 N.M. 628, 973 P.2d 880, 1998 N.M. App. LEXIS 183 (N.M. Ct. App. 1998).

Prosecutor’s comments that certain witnesses who were at a crime scene testified at trial was not a comment improperly calling the jury’s attention to a defendant’s failure to testify. State v. Bourland, 1993-NMCA-117, 116 N.M. 349, 862 P.2d 457, 1993 N.M. App. LEXIS 105 (N.M. Ct. App.), cert. denied, 116 N.M. 349, 862 P.2d 1223, 1993 N.M. LEXIS 317 (N.M. 1993).

The evidentiary privilege against self-incrimination of the U.S. Const. amends. V, the state constitution, and the Organized Crime Act, 29-9-1 NMSA 1978, does not apply to corporations or individuals in their representative capacity. Doe v. State, 1992-NMSC-022, 114 N.M. 78, 835 P.2d 76, 1992 N.M. LEXIS 110 (N.M. 1992).

Defendant’s motion to dismiss a charge of homicide by vehicle on the basis of double jeopardy was improperly granted where a retrial after a mistrial caused by a hung jury did not violate the constitutional prohibition on double jeopardy; a trial judge could discharge a genuinely deadlocked jury and require a defendant to submit to a second trial because such a rule accorded recognition to society’s interest in giving the prosecution one complete opportunity to convict those who violated its laws. State v. O'Kelley, 1991-NMCA-049, 113 N.M. 25, 822 P.2d 122, 1991 N.M. App. LEXIS 200 (N.M. Ct. App. 1991).

Prosecutor’s inquiry into a defendant’s refusal to identify himself to police did not improperly put defendant’s assertion of his right to remain silent before the jury, because identification is non-testimonial and the State may compel a defendant to give an identification without violating a defendant’s rights under N.M. Const. art II  § 15, or U.S. Const. amends. V. State v. Baca, 1990-NMCA-123, 111 N.M. 270, 804 P.2d 1089, 1990 N.M. App. LEXIS 134 (N.M. Ct. App. 1990).

Bank’s procedural due process rights under U.S. Const. amends. V §§ and XIV and N.M. Const. art II  § 18 were not violated when a trial court allowed creditors to amend their complaint to conform to the evidence and to reflect a prima facie tort claim against the bank because the trial court’s ruling was not an abuse of discretion and the bank was not denied process; the bank participated in a full trial with every opportunity to be heard and with fair procedures. Schmitz v. Smentowski, 1990-NMSC-002, 109 N.M. 386, 785 P.2d 726, 1990 N.M. LEXIS 22 (N.M. 1990).

Double jeopardy rule of N.M. Const., art. 2, § 15 and U.S. Const. amends. V did not apply to a defendant who faced misdemeanor charges in municipal court and felony charges in district court; because each court was beyond the jurisdiction of the other, the jurisdictional exception to the double jeopardy rule applied. State v. Manzanares, 1983-NMSC-102, 100 N.M. 621, 674 P.2d 511, 1983 N.M. LEXIS 2382 (N.M. 1983), cert. denied, 471 U.S. 1057, 105 S. Ct. 2123, 85 L. Ed. 2d 487, 1985 U.S. LEXIS 2827 (U.S. 1985).

Where a co-defendant’s plea agreement had not been accepted by the trial court before a defendant’s trial, the exercise of the co-defendant’s Fifth Amendment privilege was properly granted. State v. Lujan, 1983-NMCA-006, 99 N.M. 453, 659 P.2d 905, 1983 N.M. App. LEXIS 674 (N.M. Ct. App.), cert. denied, 99 N.M. 477, 660 P.2d 119, 1983 N.M. LEXIS 2285 (N.M. 1983).

Refusal to take a blood test is not a testimonial “statement” within the Fifth Amendment. McKay v. Davis, 1982-NMSC-122, 99 N.M. 29, 653 P.2d 860, 1982 N.M. LEXIS 2905 (N.M. 1982).

Statement to the jury by the assistant district attorney in defendant’s murder trial that defendant never came forward during the murder investigation and never produced the gun that could have acquitted him clearly violated defendant’s right under U.S. Const. art. V to remain silent and constituted fundamental error that mandated a new trial despite defendant’s failure to object. State v. Ramirez, 1982-NMSC-082, 98 N.M. 268, 648 P.2d 307, 1982 N.M. LEXIS 2869 (N.M. 1982).

Because the testimony that the state sought to elicit from defendant at co-defendant’s trial could have led to prosecuting defendant for a new charge in the federal court and could have led to his being sentenced as a habitual offender for that new charge, defendant’s right to under the fifth amendment to not incriminate himself justified his refusal to testify. State v. Urioste, 1980-NMCA-104, 95 N.M. 712, 625 P.2d 1229, 1980 N.M. App. LEXIS 917 (N.M. Ct. App. 1980).

U.S. Const. amends. V, in its direct application to the federal government, and in its bearing on the states by reason of the U.S. Const. amends. XIV, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt. State v. Miller, 1966-NMSC-041, 76 N.M. 62, 412 P.2d 240, 1966 N.M. LEXIS 2599 (N.M. 1966).

Although tax assessments or demands for payment were presumed to be correct under 7-1-17C NMSA 1978, where defendant had previously been convicted of possession of a controlled substance with intent to distribute, an assessment under the Controlled Substance Tax Act, which defendant protested pursuant to 7-1-24 NMSA 1978, violated his double jeopardy rights under U.S. Const. amends. V and N.M. Const. art II  § 15, and, pursuant to 7-1-25D NMSA 1978, defendant was awarded a reasonable attorney fee for the defense of the appeal taken by plaintiff New Mexico Taxation and Revenue Department of the decision and order of a hearing officer of the Department. New Mex. Taxation & Revenue Dep't v. Whitener, 1993-NMCA-161, 117 N.M. 130, 869 P.2d 829, 1993 N.M. App. LEXIS 170 (N.M. Ct. App. 1993).

Where a defendant was not guilty due to insanity in an earlier trial, defendant’s conviction in a later trial, which was based on events that occurred 16 hours before the events in the first trial, was barred by collateral estoppel, under the U.S. Const. amends. V §§ and XIV and N.M. Const. art II  § 15. Fifth and Fourteenth Amendments. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, 1975 N.M. App. LEXIS 646 (N.M. Ct. App.), cert. denied, 87 N.M. 450, 535 P.2d 657, 1975 N.M. LEXIS 816 (N.M. 1975).

The issue of whether a defendant has been denied his right to due process under U.S. Const. amends. XIV and N.M. Const. art II  § 18 by reason of preindictment delay involves the same test; the Due Process Clause of U.S. Const. amends. V would require dismissal of the indictment if it were shown at trial that the preindictment delay caused substantial prejudice to the defendant’s rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. Courts are required to consider the reasons for the delay as well as prejudice to the accused. State v. Gonzales, 1990-NMCA-040, 110 N.M. 218, 794 P.2d 361, 1990 N.M. App. LEXIS 45 (N.M. Ct. App. 1990), aff'd, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630, 1991 N.M. LEXIS 59 (N.M. 1991).

Driver’s refusal to submit to a breath-alcohol test under the Implied Consent Act, 66-8-105 NMSA 1978 et seq., is neither compelled nor testimonial communication of the type protected by the Fifth Amendment. McKay v. Davis, 1982-NMSC-122, 99 N.M. 29, 653 P.2d 860, 1982 N.M. LEXIS 2905 (N.M. 1982).

Revocation of a broker’s real estate license by the New Mexico real estate commission was invalid where the broker was denied procedural due process as a result of the commission’s failure to provide the broker with proper notice; embodied in the term “procedural due process” was reasonable notice and opportunity to be heard and present any claim or defense under U.S. Const. amends. V §§ and XIV. McCoy v. New Mexico Real Estate Comm'n, 1980-NMSC-081, 94 N.M. 602, 614 P.2d 14, 1980 N.M. LEXIS 2705 (N.M. 1980).

Right against self-incrimination pursuant to U.S. Const. amends. V and N.M. Const. art II  § 15 does not directly involve right to counsel. State v. Rascon, 1976-NMSC-016, 89 N.M. 254, 550 P.2d 266, 1976 N.M. LEXIS 806 (N.M. 1976).

The United States supreme court states that U.S. Const. amends. V and U.S. Const. amends. XIV forbid comment by the prosecution on the accused’s silence; the reviewing court takes that to mean any comment, not just comment comparable to that in the matter before the supreme court at that time. State v. Miller, 1966-NMSC-041, 76 N.M. 62, 412 P.2d 240, 1966 N.M. LEXIS 2599 (N.M. 1966).

New Mexico’s constitutional and statutory protection against double jeopardy, N.M. Const. art, II, § 15 and 30-1-10 NMSA 1978, is more encompassing and inviolate than that provided by U.S. Const. amends. V. State v. Nunez, 2000-NMSC-013, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, 1999 N.M. LEXIS 388 (N.M. 1999).

Because the double jeopardy clause of U.S. Const. amends. V and that of N.M. Const. art II  § 15 provided the same protections, the court applied the same analysis for both clauses to a criminal defendant’s double-jeopardy argument. State v. Borja-Guzman, 1996-NMCA-025, 121 N.M. 401, 912 P.2d 277, 1996 N.M. App. LEXIS 5 (N.M. Ct. App.), cert. denied, 121 N.M. 375, 911 P.2d 883, 1996 N.M. LEXIS 67 (N.M. 1996).

Withdrawal of blood from a defendant for chemical analysis does not constitute testimonial evidence. The Fifth Amendment privilege against self-incrimination is not violated by this procedure. McKay v. Davis, 1982-NMSC-122, 99 N.M. 29, 653 P.2d 860, 1982 N.M. LEXIS 2905 (N.M. 1982).

Where the same act is prohibited by the laws of separate jurisdictions, a prior acquittal or conviction by one sovereign does not necessarily operate as a bar to a subsequent prosecution for the same act or transaction by the other sovereign. State v. Rogers, 1977-NMSC-057, 90 N.M. 604, 566 P.2d 1142, 1977 N.M. LEXIS 1066 (N.M. 1977).

Defendant was subject to a custodial interrogation when he gave his first statement at the district attorney’s office without the benefit of required Miranda warnings, U.S. Const. amends. V; for purposes of remand, despite the Miranda violation, defendant voluntarily gave his statement at the district attorney’s office. State v. Olivas, 2011-NMCA-030, 149 N.M. 498, 252 P.3d 722, 2011 N.M. App. LEXIS 43 (N.M. Ct. App. 2011).

Pursuant to a routine search with a drug-sniffing dog, border patrol agents found marijuana in duffel bag in the cargo compartment of a bus. After determining bag was linked to defendant’s seat number, agent requested that he exit the bus for questioning, during which they requested that defendant empty his pockets and remove his shoes, and then arrested defendant when a ticket stub confirming his ownership of the bag was found in his shoe. Based on the totality of the circumstances, defendant was not in custody prior to the arrest so as to invoke his Miranda rights, and his consent to officer’s request was voluntary. State v. Munoz, 2008-NMCA-090, 144 N.M. 350, 187 P.3d 696, 2008 N.M. App. LEXIS 66 (N.M. Ct. App. 2008), cert. quashed, 147 N.M. 423, 224 P.3d 650, 2009 N.M. LEXIS 909 (N.M. 2009).

Officers’ questioning defendant while he was in a patrol car at the scene of the accident constituted a custodial interrogation and because the police did not advise defendant of his rights before questioning him, the trial court properly suppressed the statements defendant made during that interrogation. The evidence showed that: (1) the officers threatened defendant with arrest; (2) they physically escorted him to the patrol car; (3) they placed defendant in the back seat, where he was locked in; and (4) they later returned to question defendant either from the front seat of the patrol car while defendant was locked in the back or by opening the back door and questioning him from a position that would have blocked his exit from the car. State v. Snell, 2007-NMCA-113, 142 N.M. 452, 166 P.3d 1106, 2007 N.M. App. LEXIS 90 (N.M. Ct. App. 2007), cert. quashed, 144 N.M. 49, 183 P.3d 934, 2008 N.M. LEXIS 266 (N.M. 2008), cert. denied, 555 U.S. 1045, 129 S. Ct. 626, 172 L. Ed. 2d 608, 2008 U.S. LEXIS 8813 (U.S. 2008).

Where a hospital nurse questioned the defendant after his arrest before he received his Miranda warnings, and the questioning was under the close, direct scrutiny of a police officer, it amounted to custodial interrogation; the statements elicited from the defendant were thereby inadmissible under the U.S. Const. amends. V. State v. Ybarra, 1990-NMSC-109, 111 N.M. 234, 804 P.2d 1053, 1990 N.M. LEXIS 415 (N.M. 1990).

For inverse condemnation to be based upon a “damage,” a property owner must suffer some compensable injury that was not suffered by the public in general, and unlike the United States Constitution, the New Mexico Constitution mandated compensation both when a governmental action resulted in a taking of property and when such action damaged property under U.S. Const. amends. V, N.M. Const. art II  § 20. Estate of Sanchez v. County of Bernalillo, 1995-NMSC-058, 120 N.M. 395, 902 P.2d 550, 1995 N.M. LEXIS 308 (N.M. 1995).

Despite the fact that a woman who drove her car into a family, killing one member and injuring two others, had a history of mental illness, a verdict of guilty but mentally ill, as permitted by 31-9-3 NMSA 1978, did not violate her rights under the due process clauses or the equal protection clauses of U.S. Const. amends. V, U.S. Const. amends. XIV, N.M. Const. art II  § 14 or N.M. Const. art II  § 18, nor did it constitute cruel and unusual punishment under U.S. Const. amends. VIII §§ and XIV or N.M. Const., arts. II, §§ 14, 18, and her sentence for murder was proper under 31-9-4 NMSA 1978; nor did 31-9-3 NMSA 1978 as applied violate her constitutional rights. State v. Neely, 1991-NMSC-087, 112 N.M. 702, 819 P.2d 249, 1991 N.M. LEXIS 330 (N.M. 1991).

When defendant’s initial request for the jury to be instructed on entrapment lacked merit, defendant’s decision between remaining silent or offering testimony as to why he was entitled to have the issue of entrapment presented to the jury did not impinge on his Fifth Amendment right to remain silent. State v. Rodriguez, 1988-NMCA-069, 107 N.M. 611, 762 P.2d 898, 1988 N.M. App. LEXIS 74 (N.M. Ct. App.), cert. denied, 107 N.M. 546, 761 P.2d 424, 1988 N.M. LEXIS 221 (N.M. 1988).

A prosecutor did not violate defendant’s constitutional rights when cross-examining him at trial on his post-arrest silence; improper comment on the right to remain silent guaranteed by U.S. Const. amends. V did not occur where the questions were actually invited by defendant’s testimony on direct examination. State v. Molina, 1984-NMSC-038, 101 N.M. 146, 679 P.2d 814, 1984 N.M. LEXIS 1631 (N.M. 1984).

Where, in an earlier trial, a defendant’s insanity, an affirmative defense under former 41-23-35, 1953 Comp. (repealed), was actually litigated, was absolutely necessary to a decision in that trial, and was decided in his favor, under the principle of collateral estoppel, which was embodied in the guaranty against double jeopardy in U.S. Const. amends. V and was applicable to the states under U.S. Const. amends. XIV, and which was also included in N.M. Const. art II  § 15, his convictions arising out of events that occurred 16 hours before events underlying the earlier trial were barred by collateral estoppel and were reversed. State v. Nagel, 1975-NMCA-026, 87 N.M. 434, 535 P.2d 641, 1975 N.M. App. LEXIS 646 (N.M. Ct. App.), cert. denied, 87 N.M. 450, 535 P.2d 657, 1975 N.M. LEXIS 816 (N.M. 1975).

Where a suspect was arrested on charges of trafficking cocaine and his van was seized pursuant to the Controlled Substances Act, 30-31-1 to 30-31-40 NMSA 1978, a default judgment entered against him, as a sanction in a civil forfeiture for refusing to answer discovery requests, was reversed because he had a right under the U.S. Const. amends. V not to respond. State ex rel. Albuquerque Police Dep't v. One Black 1983 Chevrolet Van, 1995-NMCA-082, 120 N.M. 280, 901 P.2d 211, 1995 N.M. App. LEXIS 79 (N.M. Ct. App. 1995).

Although a habeas petitioner's convictions for voluntary manslaughter, aggravated battery, and shooting at or from a motor vehicle,  N.M. Stat. Ann. §§ 30-2-3(A),  30-3-5, and  30-3-8(B), violated double jeopardy, U.S. Const. amends. V, under a new rule announced in State v. Montoya, the rule was procedural and did not apply retroactively.  Dominguez v. State, 2015-NMSC-014, 348 P.3d 183, 2015 N.M. LEXIS 104 (N.M. 2015).

When a magistrate dismissed a criminal case after suppressing an officer's testimony as a sanction for the State's non-compliance with N.M. R. Ann. 6-506A(C), the State was not barred from further prosecuting defendant, despite the magistrate's characterization of the dismissal as an acquittal, because compliance with N.M. R. Ann. 6-506A was a purely procedural matter requiring no evaluation of the sufficiency of evidence, so the magistrate actually dismissed the case on procedural grounds without evaluating the evidence.  State v. Baca, 2015-NMSC-021, 352 P.3d 1151, 2015 N.M. LEXIS 114 (N.M.), cert. denied, 136 S. Ct. 255, 193 L. Ed. 2d 134, 2015 U.S. LEXIS 6090 (U.S. 2015).

Defendant's convictions for both homicide by vehicle and leaving the scene of an accident did not create a double jeopardy violation because defendant's conduct was non-unitary; in accordance with the fact that the two statutes addressed different harms, the goals and mental states of drivers who violated these two statutes were likely to be different.  State v. Melendrez, 2014-NMCA-062, 326 P.3d 1126, 2014 N.M. App. LEXIS 40 (N.M. Ct. App.), cert. denied, 328 P.3d 1188, 2014 N.M. LEXIS 208 (N.M. 2014).

Defendant could not be punished for manslaughter and causing great bodily harm by shooting at a motor vehicle, based on the same shooting of the same victim, because (1) neither crime was definitionally subsumed in the other, and (2) it could not be concluded that the legislature intended to impose more than the maximum punishment for either crime. State v. Montoya, 2013-NMSC-020, 306 P.3d 426, 2013 N.M. LEXIS 139 (N.M. 2013).

When defendant’s felony murder conviction was vacated for instructional error, double jeopardy barred defendant’s retrial because (1) defendant’s voluntary manslaughter conviction effectively acquitted defendant of second-degree murder since the jury was properly instructed on the distinction between the crimes and that the jury was not to reach voluntary manslaughter unless the jury could not convict of second-degree murder, (2) second-degree murder was a lesser-included offense of felony murder, and (3) defendant could not be retried for a greater offense after defendant was acquitted of a lesser-included offense. State v. Montoya, 2013-NMSC-020, 306 P.3d 426, 2013 N.M. LEXIS 139 (N.M. 2013).

State could retry defendant for misdemeanor cruelty to animals without violating double jeopardy, U.S. Const. amends. V; double jeopardy did not prohibit the State from trying a defendant for greater and lesser included offenses in a single prosecution. State v. Collier, 2013-NMSC-015, 301 P.3d 370, 2013 N.M. LEXIS 112 (N.M. 2013).

Defendant’s convictions did not violate double jeopardy where defendant’s conduct was not factually unitary as the jury could have found independent factual bases for kidnapping and battery; defendant’s conduct was not unitary as a matter of law. State v. Sotelo, No. 31061, 2012 N.M. App. LEXIS 116 (N.M. Ct. App. Oct. 24, 2012), sub. op., 296 P.3d 1232, 2012 N.M. App. LEXIS 126 (N.M. Ct. App. 2012).

Where defendant beat, stabbed, and slashed the victims after entering their home, his two convictions for aggravated burglary while committing a battery under 30-16-4C NMSA 1978 and one conviction for aggravated burglary with a deadly weapon under 30-16-4A NMSA 1978 violated the Fifth Amendment’s prohibition against double jeopardy. There was only one unlawful entry with the intent to commit a felony therein, and thus only one burglary that could be enhanced to an aggravated burglary. State v. Swick, 2012-NMSC-018, 279 P.3d 747, 2012 N.M. LEXIS 181 (N.M. 2012).

Defendant’s convictions for two counts of aggravated battery and two counts of attempted murder violated the Fifth Amendment’s prohibition against double jeopardy, because the aggravated battery elements were subsumed within the attempted murder elements, and the same evidence showing that defendant beat, stabbed, and slashed the victims after entering their home was offered to prove both offenses. State v. Swick, 2012-NMSC-018, 279 P.3d 747, 2012 N.M. LEXIS 181 (N.M. 2012).

Jeopardy did not attach at oral sentencing pursuant to a plea agreement that the trial court later ordered withdrawn; defendant could not have formed an expectation of finality in an oral sentence imposed pursuant to a plea agreement, the terms of which defendant either could not or would not keep. State v. Soutar, 2012-NMCA-024, 272 P.3d 154, 2012 N.M. App. LEXIS 14 (N.M. Ct. App. 2012).

Defendant’s multiple conspiracy convictions under 30-28-2 NMSA 1978 were improper and resulted in a double jeopardy violation because defendant entered into only one agreement and took part in only one conspiracy. The three charged conspiracies, to commit murder, kidnapping, and aggravated arson, involved only one victim and the infliction of a similar type of harm upon that victim. State v. Gallegos, 2011-NMSC-027, 149 N.M. 704, 254 P.3d 655, 2011 N.M. LEXIS 308 (N.M. 2011).

Because defendant was convicted of both felony murder and the underlying felony of armed robbery, the district court was required to vacate the underlying armed robbery conviction; however, the district court’s order merely stated that the armed robbery count merged into the felony murder count. Thus, under U.S. Const. amends. V and N.M. Const. art II  § 15, the conviction for armed robbery was not vacated as required and ran afoul of double jeopardy concerns by leaving the conviction for armed robbery untouched and arguably still intact. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057, 2011 N.M. LEXIS 52 (N.M. 2011).

Child’s convictions did not violate double jeopardy where even though the child’s firing of the weapon at or from the vehicle resulted in great bodily harm, the state was not required to prove that the child had the intent to injure the victim, and it was also possible to commit the aggravated battery, even with a deadly weapon, without the use of a vehicle. State v. Rudy B., 2009-NMCA-104, 147 N.M. 45, 216 P.3d 810, 2009 N.M. App. LEXIS 121 (N.M. Ct. App. 2009), rev'd, 2010-NMSC-045, 149 N.M. 22, 243 P.3d 726, 2010 N.M. LEXIS 531 (N.M. 2010).

Defendant’s retrial for negligent child abuse after he was previously acquitted of intentional child abuse was not a double jeopardy violation under the Fifth Amendment as the two crimes were mutually exclusive in that one could not commit an intentional act and an unintentional act at the same time; however, it was error for the trial court to have allowed the state to put on the same case in the second trial as it did in the first, with the state’s theory of the case being that defendant intentionally harmed the child. Further, the trial court should have merged a conviction on a lesser included offense into the great offense rather than simply imposing consecutive sentences. State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105, 2008 N.M. LEXIS 86 (N.M. 2008), overruled in part, State v. Consaul, 2014-NMSC-030, 332 P.3d 850, 2014 N.M. LEXIS 294 (N.M. 2014), overruled,  State v. Montoya, 2015-NMSC-010, 345 P.3d 1056, 2015 N.M. LEXIS 56 (N.M. 2015).

Trial court’s finding that an offense was a serious violent offense and subsequent limiting of defendant’s good time credit did not violate defendant’s double jeopardy rights because it did not result in punishment beyond that which was statutorily established for his offense. State v. Schoonmaker, 2008-NMSC-010, 143 N.M. 373, 176 P.3d 1105, 2008 N.M. LEXIS 86 (N.M. 2008), overruled in part, State v. Consaul, 2014-NMSC-030, 332 P.3d 850, 2014 N.M. LEXIS 294 (N.M. 2014), overruled,  State v. Montoya, 2015-NMSC-010, 345 P.3d 1056, 2015 N.M. LEXIS 56 (N.M. 2015).

Defendant was subjected to double jeopardy where the predicate felony of shooting at a motor vehicle was subsumed into the felony murder conviction, and defendant could not be convicted of both; because the alternative theory of first-degree felony murder subjected defendant to double jeopardy, his predicate felony conviction, shooting at a motor vehicle, was vacated. State v. Gonzales, 2007-NMSC-059, 143 N.M. 25, 172 P.3d 162, 2007 N.M. LEXIS 601 (N.M. 2007).

Court’s use of defendant’s shoplifting offense to revoke probation and parole was not a violation of double jeopardy because probation revocation proceedings were not directed at attempting to punish the original criminal activity but rather determined whether probation should continue. State v. Neal, 2007-NMCA-086, 142 N.M. 487, 167 P.3d 935, 2007 N.M. App. LEXIS 60 (N.M. Ct. App. 2007).

Prosecutorial misconduct did not bar a retrial of defendant because the appellate court was unable to conclude that the prosecutor’s decision to withhold information regarding two attempted drug transactions was part of, or based on, any plan to present questionably accurate testimony and bolster a witness’s credibility in closing argument. State v. Cortez, 2007-NMCA-054, 141 N.M. 623, 159 P.3d 1108, 2007 N.M. App. LEXIS 39 (N.M. Ct. App. 2007), cert. quashed, 143 N.M. 667, 180 P.3d 674, 2008 N.M. LEXIS 121 (N.M. 2008).

Defendant’s argument that N.M. Const. art II  § 15 should be interpreted more expansively than the double jeopardy clause of the Fifth Amendment was not properly preserved for appellate review because he failed to present to the trial court any argument or authority. State v. Jimenez, 2007-NMCA-005, 141 N.M. 106, 151 P.3d 67, 2006 N.M. App. LEXIS 154 (N.M. Ct. App. 2006), cert. quashed, 143 N.M. 667, 180 P.3d 674, 2008 N.M. LEXIS 136 (N.M. 2008).

Dismissal of defendant’s pending second-degree murder charge was inappropriate because, as to the theory on which the jury found guilt, he could be retried. The jury had been presented with two separate theories of murder and retrial on the one murder conviction did not violate double jeopardy under the Fifth Amendment. State v. Jimenez, 2007-NMCA-005, 141 N.M. 106, 151 P.3d 67, 2006 N.M. App. LEXIS 154 (N.M. Ct. App. 2006), cert. quashed, 143 N.M. 667, 180 P.3d 674, 2008 N.M. LEXIS 136 (N.M. 2008).

Defendant’s convictions for aggravated burglary and false imprisonment violated double jeopardy, as they were based on unitary conduct and were subsumed within criminal sexual penetration in the second degree (CSP II) convictions; defendant’s convictions for two counts of CSP II did not violate double jeopardy because the evidence supported the conclusion that the CSP II offenses were separate and distinct. State v. Armendariz, 2006-NMCA-152, 140 N.M. 712, 148 P.3d 798, 2006 N.M. App. LEXIS 147 (N.M. Ct. App. 2006), cert. quashed, 143 N.M. 667, 180 P.3d 674, 2008 N.M. LEXIS 95 (N.M. 2008).

Defendant’s convictions for both attempted criminal sexual penetration in the third degree and assault with intent to commit criminal sexual penetration violated double jeopardy, as his conduct in committing the criminal acts was unitary. State v. Schackow, 2006-NMCA-123, 140 N.M. 506, 143 P.3d 745, 2006 N.M. App. LEXIS 94 (N.M. Ct. App.), cert. denied, 140 N.M. 423, 143 P.3d 185, 2006 N.M. LEXIS 427 (N.M. 2006), cert. denied, 140 N.M. 542, 144 P.3d 101, 2006 N.M. LEXIS 529 (N.M. 2006).

Defendant’s actions, after alleged rape, of scrubbing up evidence and instructing victim to wash off in river, constituted only one act of evidence tampering, and his convictions for two counts of evidence tampering violated his right to be free from double jeopardy. State v. Cook, 2006-NMCA-110, 140 N.M. 356, 142 P.3d 944, 2006 N.M. App. LEXIS 84 (N.M. Ct. App. 2006), cert. denied, 140 N.M. 542, 144 P.3d 101, 2006 N.M. LEXIS 456 (N.M. 2006), cert. quashed, 141 N.M. 339, 154 P.3d 1239, 2007 N.M. LEXIS 74 (N.M. 2007).

Double jeopardy challenge to the imposition of consecutive sentences in a child abuse case was rejected because defendant’s admission to striking the child on three occasions, along with the severe injuries suffered, supported a finding that the acts procuring the injuries were sufficiently discrete as to allow consecutive sentencing. Further, there was not an adequate basis for appellate review under the record.  State v. Ayala, 2006-NMCA-088, 140 N.M. 126, 140 P.3d 547, 2006 N.M. App. LEXIS 98 (2006), cert. denied, 142 P.3d 360, 2006 N.M. LEXIS 341; writ denied,  State v. Ayala, 140 N.M. 279, 142 P.3d 360, 2006 N.M. LEXIS 341 (N.M. 2006).

Convictions for both felony murder and aggravated burglary did not violate double jeopardy, where evidence indicated that the victim’s death was not caused by the initial attack alone. Defendant’s conduct was not unitary, but consisted of at least two distinct acts: the initial attack, completing the crime of aggravated burglary, and the later murder. State v. DeGraff, 2006-NMSC-011, 139 N.M. 211, 131 P.3d 61, 2006 N.M. LEXIS 129 (N.M. 2006).

Double jeopardy did not bar state’s appeal of trial court’s dismissal of trafficking in controlled substance charges for lack of venue, even though this dismissal took the form of a directed verdict at close of trial, since trial court’s erroneous ruling on the basis of venue was not an adjudication as to the guilt or innocence of defendant, and thus jeopardy, while attached, had never terminated. State v. Roybal, 2006-NMCA-043, 139 N.M. 341, 132 P.3d 598, 2006 N.M. App. LEXIS 16 (N.M. Ct. App. 2006).

Defendant whose conviction for depraved mind murder had been reversed could not be retried for lesser included offenses, since his conviction for child abuse resulting in death still stood. State v. Reed, 2005-NMSC-031, 138 N.M. 365, 120 P.3d 447, 2005 N.M. LEXIS 447 (N.M. 2005).

It was clear from the different elements required that the offenses of tampering with evidence, conspiracy to commit tampering with evidence, and contributing to the delinquency of a minor were not the same offense as larceny or obstructing an officer under the  Blockburger test; thus, the Double Jeopardy Clause was not implicated by the prosecution for those offenses in a separate proceeding in the district court.  State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92, 2005 N.M. LEXIS 334 (N.M. 2005).

Defendant’s plea in municipal court only two days after his arrest ensured that the state did not have the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. Thus, the second prosecution in the district court did not implicate any of the core concerns of double jeopardy; as a result, the jurisdictional exception precluded defendant from using double jeopardy as a sword to prevent a full and fair opportunity to convict him of the crimes he committed.  State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92, 2005 N.M. LEXIS 334 (N.M. 2005).

New Mexico supreme court limits the application of the jurisdictional exception to the Double Jeopardy Clause in New Mexico, holding that the exception cannot be applied in the event of an acquittal of a lesser included offense; in addition, the prosecution of a greater offense over which an initial court lacked jurisdiction cannot include a lesser included offense for which a defendant was convicted. Finally, the exception will not apply in cases in which a successive prosecution violates the core concerns of the Double Jeopardy Clause; otherwise, the exception would countenance the type of rehearsal of proof, and the accompanying risk of erroneous conviction, that is one of the chief evils double jeopardy seeks to prevent. State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92, 2005 N.M. LEXIS 334 (N.M. 2005).

Because the municipal court had no jurisdiction over felonies, such as the felony of theft of a credit card, and because municipal ordinances could not be inconsistent with state law, defendant’s conviction of larceny in the municipal court had to have been based on the theft of the purse and cash rather than on the theft of the credit card. Thus, the municipal court prosecution for larceny did not involve the same offense as the district court prosecution for theft of a credit card; therefore, there was no violation of defendant’s double jeopardy rights.  State v. Rodriguez, 2005-NMSC-019, 138 N.M. 21, 116 P.3d 92, 2005 N.M. LEXIS 334 (N.M. 2005).

Criminal sexual penetration and assault with intent to commit CSP on a household member are separately punishable offenses; therefore, defendant’s double jeopardy rights were not violated when he was convicted of both. State v. Jensen, 2005-NMCA-113, 138 N.M. 254, 118 P.3d 762, 2005 N.M. App. LEXIS 103 (N.M. Ct. App.), cert. quashed, 138 N.M. 587, 124 P.3d 565, 2005 N.M. LEXIS 528 (N.M. 2005).

Double jeopardy error of trying defendant a second time for second degree criminal sexual penetration, when he should not have faced trial on that charge, spilled over to and infected not only the conviction of third degree criminal sexual penetration (CSP III), but also the convictions of aggravated burglary and false imprisonment. Thus, the CSP III, aggravated burglary, and false imprisonment convictions were reversed, and the case was remanded to the trial court for a new trial. State v. Fielder, 2005-NMCA-108, 138 N.M. 244, 118 P.3d 752, 2005 N.M. App. LEXIS 94 (N.M. Ct. App. 2005), cert. denied, 138 N.M. 439, 120 P.3d 1182, 2005 N.M. LEXIS 425 (N.M. 2005), cert. quashed, 139 N.M. 430, 134 P.3d 121, 2006 N.M. LEXIS 205 (N.M. 2006).

Defendant’s double jeopardy rights were not violated by his conviction and sentence for both of third degree criminal sexual penetration (CSP III) and false imprisonment based on the same facts because (1) the difference in elements between the offenses — CSP III required sexual conduct perpetrated through force or coercion, whereas false imprisonment did not require sexual conduct and required knowledge that the perpetrator had no authority to restrain or confine the victim — gave rise to a presumption that the legislature intended separate punishments; and (2) the difference in the quantum of punishment for each offense — CSP III was a third degree felony punishable by three years of imprisonment while false imprisonment was a fourth degree felony punishable by one and one-half years of imprisonment — meant that the legislature likely intended CSP III and false imprisonment to be separately punished. State v. Fielder, 2005-NMCA-108, 138 N.M. 244, 118 P.3d 752, 2005 N.M. App. LEXIS 94 (N.M. Ct. App. 2005), cert. denied, 138 N.M. 439, 120 P.3d 1182, 2005 N.M. LEXIS 425 (N.M. 2005), cert. quashed, 139 N.M. 430, 134 P.3d 121, 2006 N.M. LEXIS 205 (N.M. 2006).

Record was clear that the jury reached an impasse regarding the third degree criminal sexual penetration (CSP III) charge; thus, there was a manifest necessity to declare a mistrial as to the CSP III charge, and therefore no double jeopardy attached to that offense, and defendant could be retried on that charge without violating his double jeopardy rights. State v. Fielder, 2005-NMCA-108, 138 N.M. 244, 118 P.3d 752, 2005 N.M. App. LEXIS 94 (N.M. Ct. App. 2005), cert. denied, 138 N.M. 439, 120 P.3d 1182, 2005 N.M. LEXIS 425 (N.M. 2005), cert. quashed, 139 N.M. 430, 134 P.3d 121, 2006 N.M. LEXIS 205 (N.M. 2006).

Without inquiry by the trial court into the jury’s deliberations on the greater offense of second degree criminal sexual penetration (CSP II), there was no manifest necessity to declare a mistrial as to that offense and therefore jeopardy attached to that offense. Thus, defendant’s double jeopardy rights were violated when he was prosecuted at the second trial for CSP II. State v. Fielder, 2005-NMCA-108, 138 N.M. 244, 118 P.3d 752, 2005 N.M. App. LEXIS 94 (N.M. Ct. App. 2005), cert. denied, 138 N.M. 439, 120 P.3d 1182, 2005 N.M. LEXIS 425 (N.M. 2005), cert. quashed, 139 N.M. 430, 134 P.3d 121, 2006 N.M. LEXIS 205 (N.M. 2006).

Defendant was convicted of possession of a controlled substance and tampering with evidence. After applying the Blockburger test, and examining legislative intent, the state supreme court concluded that defendant’s convictions on both charges did not violate the prohibition against double jeopardy because a jury, after being advised of the elements of each offense, had a separate, independent basis for finding defendant guilty of each act. State v. Franco, 2005-NMSC-013, 137 N.M. 447, 112 P.3d 1104, 2005 N.M. LEXIS 270 (N.M. 2005).

District court violated double jeopardy requirements in convicting defendant on three counts of custodial interference, and sentencing defendant consecutively on each count, where, although there were three children involved, the alleged violation related to only one custody order. The district court had to enter one sentence if he was not allowed to withdraw his guilty plea. State v. Hunter, 2005-NMCA-089, 138 N.M. 96, 117 P.3d 254, 2005 N.M. App. LEXIS 77 (N.M. Ct. App. 2005), cert. denied, 138 N.M. 146, 117 P.3d 952, 2005 N.M. LEXIS 323 (N.M. 2005), cert. quashed, 139 N.M. 568, 136 P.3d 569, 2006 N.M. LEXIS 212 (N.M. 2006).

Trial judge’s comment that he found defendant guilty of aggravated driving while under the influence of intoxicating liquor or drugs on the basis of defendant’s breath score, not on the basis of his refusal to take a second breath test, was interlocutory and not binding. Therefore, double jeopardy was not implicated because the written order indicated that proceedings were continuing and there was not a judgment of “not guilty”. State v. Vaughn, 2005-NMCA-076, 137 N.M. 674, 114 P.3d 354, 2005 N.M. App. LEXIS 63 (N.M. Ct. App.), cert. denied, 115 P.3d 229, 2005 N.M. LEXIS 281 (N.M. 2005).

Where a jury was given a “step-down” instruction requiring them to consider first degree murder, then second degree murder if they could not agree, the trial court’s not inquiring beyond the first degree murder deliberations after the jury was unable to agree on a verdict, before declaring a mistrial did not implicate double jeopardy. State v. Garcia, 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, 2005 N.M. App. LEXIS 20 (N.M. Ct. App.), cert. quashed sub. nom., State v. Munoz, 138 N.M. 773, 126 P.3d 1137, 2005 N.M. LEXIS 559 (N.M. 2005).

Defendant’s convictions for three counts of fraud did not violate double jeopardy because his fraudulent acts of taking of three payments from the victim in the course of completing work on one vehicle’s transmission were sufficiently distinct. State v. Boergadine, 2005-NMCA-028, 137 N.M. 92, 107 P.3d 532, 2005 N.M. App. LEXIS 3 (N.M. Ct. App.), cert. denied, 110 P.3d 506, 2005 N.M. LEXIS 156 (N.M. 2005).

Defendant’s right to be free from double jeopardy was not violated by his convictions for armed robbery and aggravated assault because, under the alternatives presented to the jury, the central element of armed robbery did not subsume the element of aggravated assault — the striking at the victim. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114, 2004 N.M. App. LEXIS 129 (N.M. Ct. App. 2004).

Defendant’s conviction for conspiracy to commit aggravated assault had to be reversed because his conviction for conspiracy to commit armed robbery was based upon the same agreement. Thus, defendant’s double jeopardy rights had been violated. State v. Armijo, 2005-NMCA-010, 136 N.M. 723, 104 P.3d 1114, 2004 N.M. App. LEXIS 129 (N.M. Ct. App. 2004).

Two convictions under 30-16-1 NMSA 1978 do not violate double jeopardy under the unit-of-prosecution analysis because 30-16-1 NMSA 1978 clearly mandates two separate offenses based on theft of firearms and theft of other items. State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699, 2004 N.M. LEXIS 416 (N.M. 2004), cert. denied, 543 U.S. 1177, 125 S. Ct. 1334, 161 L. Ed. 2d 162, 2005 U.S. LEXIS 1914 (U.S. 2005).

Punishments under both the over $ 250 clause and the firearm clause of the larceny statute constituted a violation of defendant’s constitutional right not to be placed in double jeopardy; under New Mexico’s single larceny doctrine, when several articles were stolen from the same owner at the same time and place, multiple larceny convictions violated double jeopardy provisions of U.S. Const. amends. V; N.M. Const. art II  § 15. State v. Alvarez-Lopez, 2003-NMCA-039, 133 N.M. 404, 62 P.3d 1286, 2002 N.M. App. LEXIS 130 (N.M. Ct. App. 2002), rev'd, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699, 2004 N.M. LEXIS 416 (N.M. 2004).

Prosecuting a driver for felony DWI after a magistrate court accepted a no contest plea as to a charge of misdemeanor DWI did not violate the driver’s rights under N.M. Const. art II  § 15 and the Double Jeopardy Clause of the Fifth Amendment; jeopardy did not attach as to the misdemeanor charge because that charge was dismissed prior to sentencing pursuant to it, because the no contest plea did not carry the same expectation of finality and tranquility that a verdict or an entry of a judgment and a sentence provided, and because the driver had not experienced the stress, the expense, and the embarrassment of a trial. State v. Angel, 2002-NMSC-025, 132 N.M. 501, 51 P.3d 1155, 2002 N.M. LEXIS 292 (N.M. 2002).

District court erred in dismissing the city’s forfeiture complaints filed pursuant to a city ordinance against drivers who continued to drive with revoked licenses; the city ordinance did not subject drivers to double jeopardy under U.S. Const. amends. V, N.M. Const. art II  § 15, or 30-1-10 NMSA 1978 because the forfeiture of a motor vehicle used by a repeat offender was not punitive. City of Albuquerque ex rel. Albuquerque Police Dep't v. One (1) 1984 White Chevy UT, 2002-NMSC-014, 132 N.M. 187, 46 P.3d 94, 2002 N.M. LEXIS 188 (N.M. 2002).

Defendant’s constitutional right to protection from double jeopardy as guaranteed by the Fifth Amendment to the United State Constitution and N.M. Const. art II  § 15 was violated when he was improperly convicted of two counts of restricting, evading, or obstructing an officer under 30-22-1 NMSA 1978 after he led police on a high speed chase while driving under the influence. Legislature had not clearly expressed an intention for multiple punishments for unitary conduct that violated several subsections of 30-22-1 NMSA 1978. State v. LeFebre, 2001-NMCA-009, 130 N.M. 130, 19 P.3d 825, 2001 N.M. App. LEXIS 2 (N.M. Ct. App. 2001).

Although the underlying conduct was unitary, a defendant’s convictions for attempted first degree murder under 30-2-1A and 30-28-1 NMSA 1978, aggravated battery resulting in great bodily harm under 30-3-5A, C NMSA 1978, and conspiracy to commit murder under 30-28-3D and 30-28-1 NMSA 1978, did not violate the protection from double jeopardy afforded by N.M. Const. art II  § 15 and U.S. Const. amends. V, and the defendant could be punished for all three crimes, but under 30-28-3D NMSA, a defendant could not be guilty of both criminal solicitation and conspiracy to commit murder so the defendant’s conviction for criminal solicitation had to be vacated. State v. Vallejos, 2000-NMCA-075, 129 N.M. 424, 9 P.3d 668, 2000 N.M. App. LEXIS 63 (N.M. Ct. App.), cert. denied, 129 N.M. 385, 9 P.3d 68, 2000 N.M. LEXIS 306 (N.M. 2000).

Because the state and federal double jeopardy provisions, N.M. Const. art II  § 15 and U.S. Const., amend V, prohibited conviction under two statutes that covered the same offense, a conviction for intentional child abuse under 30-6-1C NMSA 1978 was affirmed but a conviction for second degree murder under 30-2-1B NMSA 1978 was vacated. State v. Mann, 2000-NMCA-088, 129 N.M. 600, 11 P.3d 564, 2000 N.M. App. LEXIS 80 (N.M. Ct. App. 2000), aff'd, 2002-NMSC-001, 131 N.M. 459, 39 P.3d 124, 2002 N.M. LEXIS 29 (N.M. 2002).

Defendant’s conviction under 30-18-6 NMSA 1978 for transporting stolen livestock and under 30-16-1 NMSA 1978 for larceny of livestock violated his rights against double jeopardy under U.S. Const. amends. V and N.M. Const. art II  § 15 because both charges were supported by the same unitary conduct and because the elements of transporting stolen livestock were subsumed within the larceny statute when the subject was livestock. State v. Clark, 2000-NMCA-052, 129 N.M. 194, 3 P.3d 689, 2000 N.M. App. LEXIS 41 (N.M. Ct. App.), cert. denied, 129 N.M. 207, 4 P.3d 35, 2000 N.M. LEXIS 210 (N.M. 2000).

Where the victim was physically restrained by defendant while he attempted to rob her, beaten unconscious with an ashtray, and then strangled to death with an extension cord, defendant’s convictions for first degree felony murder and armed robbery violated the double jeopardy clause; the armed robbery conviction was error because the jury instruction allowed the jury to conclude that defendant’s forceful conduct was unitary, but the evidence did not show a significant separation in time or distance between the armed robbery and the murder. State v. Foster, 1999-NMSC-007, 126 N.M. 646, 974 P.2d 140, 1999 N.M. LEXIS 23 (N.M. 1999), abrogated as stated in Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683, 2010 N.M. LEXIS 256 (N.M. 2010).

Where the victim was physically restrained by defendant while he attempted to rob her, beaten unconscious with an ashtray, and then strangled to death with an extension cord, defendant’s convictions for first degree felony murder and aggravated kidnapping did not violate the double jeopardy clause; the evidence supported the inference that defendant’s physical restraint of the victim concluded when she was knocked unconscious, and the crime of aggravated kidnapping was complete at that point. State v. Foster, 1999-NMSC-007, 126 N.M. 646, 974 P.2d 140, 1999 N.M. LEXIS 23 (N.M. 1999), abrogated as stated in Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683, 2010 N.M. LEXIS 256 (N.M. 2010).

Double jeopardy did not preclude defendant’s second trial for first degree felony murder because defendant did not ask for lesser-included jury instructions in the first trial, and the jury in the first trial clearly indicated that it was deadlocked as to all counts including first degree felony murder, second-degree murder, armed robbery, and aggravated kidnapping. State v. Foster, 1999-NMSC-007, 126 N.M. 646, 974 P.2d 140, 1999 N.M. LEXIS 23 (N.M. 1999), abrogated as stated in Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683, 2010 N.M. LEXIS 256 (N.M. 2010).

Where the victim was accosted in her home, physically restrained, beaten and killed, and her personal property was stolen from the home, defendant’s convictions for first degree felony murder and second degree murder violated the double jeopardy clause because the elements of second-degree murder were subsumed within the elements of first degree felony murder. State v. Foster, 1999-NMSC-007, 126 N.M. 646, 974 P.2d 140, 1999 N.M. LEXIS 23 (N.M. 1999), abrogated as stated in Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683, 2010 N.M. LEXIS 256 (N.M. 2010).

Double jeopardy prohibited prosecution of a defendant for battery where he was previously adjudged in contempt of a battery prohibition contained in an Order Prohibiting Domestic Violence obtained pursuant to the Family Violence Protection Act, 40-13-1 et seq NMSA 1978 because the Order’s battery prohibition included all the elements of the criminal offense of battery and the criminal battery charges did not include any element not contained in the previous contempt offense. State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, 1998 N.M. App. LEXIS 115 (N.M. Ct. App. 1998).

Double jeopardy attaches to nonsummary criminal contempt proceedings. State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, 1998 N.M. App. LEXIS 115 (N.M. Ct. App. 1998).

Double Jeopardy Clauses of U.S. Const. amends. V and N.M. Const. art II  § 15 protect against successive prosecutions for the same offense after a defendant has been acquitted or convicted and also protect against multiple punishments for the same offense. State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, 1998 N.M. App. LEXIS 115 (N.M. Ct. App. 1998).

Double jeopardy provisions, set forth in U.S. Const. amends. V and N.M. Const. art II  § 15, prohibited defendant’s prosecution for battery when he was previously adjudged in contempt of the battery prohibition contained in an Order prohibiting domestic violence, issued under 40-13-1 NMSA 1978 et seq., which included all the elements of the criminal offense. State v. Powers, 1998-NMCA-133, 126 N.M. 114, 967 P.2d 454, 1998 N.M. App. LEXIS 115 (N.M. Ct. App. 1998).

Defendant’s consecutive sentences for attempted criminal sexual penetration and aggravated burglary violates defendant’s right against double jeopardy because the conduct is unitary in that the acts underlying both offenses are not sufficiently separated in time or space to be considered distinct, and the state does not intent to impose multiple punishments for the unitary conduct. Lucero v. Kerby, 133 F.3d 1299, 1998 U.S. App. LEXIS 223 (10th Cir. N.M.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821, 1998 U.S. LEXIS 3045 (U.S. 1998).

Defendant’s consecutive sentences for criminal sexual penetration and aggravated burglary does not violate defendant’s right against double jeopardy because the conduct is not unitary due to the fact that while the initial acts of battery and criminal sexual penetration are not distinct, aggravated burglary does not require that defendant actually commit a felony once he enters the dwelling and criminal sexual penetration requires action. Lucero v. Kerby, 133 F.3d 1299, 1998 U.S. App. LEXIS 223 (10th Cir. N.M.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821, 1998 U.S. LEXIS 3045 (U.S. 1998).

Resentencing was required after defendant was convicted of second-degree murder, armed robbery, and one aggravated battery conviction because multiple convictions violated his Fifth Amendment right to be protected from double jeopardy. State v. Cooper, 1997-NMSC-058, 124 N.M. 277, 949 P.2d 660, 1997 N.M. LEXIS 452 (N.M. 1997).

It did not violate double jeopardy to retry defendant on charges of accessory to assault with intent to commit a violent felony (robbery), 30-3-3 NMSA 1978, and accessory to false imprisonment, 30-4-3 NMSA 1978, because the offenses required differing elements of proof and the offenses were aimed at protecting differing social values. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075, 1997 N.M. LEXIS 364 (N.M. 1997).

It did not violate double jeopardy to retry defendant on charges of accessory to false imprisonment, 30-4-3 NMSA 1978, and accessory to aggravated battery, 30-3-5 NMSA 1978, because the offenses required differing elements of proof and the offenses were aimed at protecting differing social values. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075, 1997 N.M. LEXIS 364 (N.M. 1997).

It did not violate double jeopardy to retry defendant on charges of accessory to assault with intent to commit a violent felony (robbery), 30-3-3 NMSA 1978, and accessory to aggravated battery, 30-3-5 NMSA 1978, because the offenses required differing elements of proof and the offenses were aimed at protecting differing social values. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075, 1997 N.M. LEXIS 364 (N.M. 1997).

It did not violate double jeopardy to retry defendant on charges of accessory to attempted robbery and conspiracy to commit robbery because the crimes of conspiracy and accessory to a crime are separate offenses based on separate acts for which the legislature has intended multiple punishments. State v. Carrasco, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075, 1997 N.M. LEXIS 364 (N.M. 1997).

Trial court did not violate a juvenile’s right to be free from double jeopardy by sentencing the juvenile for both aggravated assault with a deadly weapon and shooting into an occupied vehicle because the legislature intended separate punishments for each offense. State v. Sosa, 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017, 1997 N.M. LEXIS 280 (N.M. 1997).

Although a juvenile’s conviction for involuntary manslaughter was reversed due to erroneous jury instructions, principles of double jeopardy prevented the court from remanding for a retrial on the homicide charges. State v. Sosa, 1997-NMSC-032, 123 N.M. 564, 943 P.2d 1017, 1997 N.M. LEXIS 280 (N.M. 1997).

No person, under the Fifth Amendment, shall be subject for the same offense to be twice put in jeopardy of life or limb. State v. Gonzales, 1997-NMCA-039, 123 N.M. 337, 940 P.2d 185, 1997 N.M. App. LEXIS 34 (N.M. Ct. App. 1997).

Sentences imposed on defendant for his conviction for first-degree murder and aggravated burglary did not violate the double jeopardy provision of the U. S. Const., amend. V, and N.M. Const. art II  § 15 because defendant’s act in entering the building to commit a theft was separate and distinct from his act of shooting the victim. State v. Livernois, 1997-NMSC-019, 123 N.M. 128, 934 P.2d 1057, 1997 N.M. LEXIS 45 (N.M. 1997).

Court could not reach the issue of whether defendant’s consecutive sentences for criminal sexual penetration, burglary, and kidnapping constituted multiple punishments in violation of the Double Jeopardy Clause because the record was devoid of facts to allow a determination if defendant’s conduct was unitary; defendant who raised the double jeopardy challenge had the burden to provide a sufficient record so that a court could determine unitary conduct and complete the remainder of the double jeopardy analysis. State v. Sanchez, 1996-NMCA-089, 122 N.M. 280, 923 P.2d 1165, 1996 N.M. App. LEXIS 68 (N.M. Ct. App.), cert. denied, 122 N.M. 279, 923 P.2d 1164, 1996 N.M. LEXIS 367 (N.M. 1996).

A criminal defendant’s conduct, in giving undercover agents samples of two different controlled substances and delivering a larger quantity of the same substances several hours later, was subject to being separately charged and separately punished, for purposes of the double jeopardy clauses of U.S. Const. amends. V and N.M. Const. art II  § 15, where language of 30-31-20 NMSA 1978 established that the legislature intended to punish each separate transfer of controlled substances. State v. Borja-Guzman, 1996-NMCA-025, 121 N.M. 401, 912 P.2d 277, 1996 N.M. App. LEXIS 5 (N.M. Ct. App.), cert. denied, 121 N.M. 375, 911 P.2d 883, 1996 N.M. LEXIS 67 (N.M. 1996).

Double jeopardy clause under U.S. Const. amends. V and N.M. Const. art II  § 15 did not bar the prosecution of defendants for DWI under 66-8-102 NMSA 1978 after their licenses were suspended pursuant to 66-8-112F NMSA 1978. State ex rel. Schwartz v. Kennedy, 1995-NMSC-069, 120 N.M. 619, 904 P.2d 1044, 1995 N.M. LEXIS 324 (N.M. 1995).

Double jeopardy principles of U.S. Const. amends. V and N.M. Const. art II  § 15 did not apply in a single prosecution of multiple counts involving same offense, so that the state could retry defendant after a jury found him guilty of aggravated assault but was unable to reach a verdict on an attempted murder charge. State v. Martinez, 1995-NMSC-064, 120 N.M. 677, 905 P.2d 715, 1995 N.M. LEXIS 325 (N.M. 1995).

Where one’s conduct is unitary, one cannot be convicted of, and sentenced for, both felony murder and the underlying felony because it would violate the Double Jeopardy Clause of the U. S. Const., amend. V. State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228, 1995 N.M. LEXIS 316 (N.M. 1995).

Sentences for both kidnapping and felony murder did not violate the double jeopardy law of either the New Mexico constitution or that of the U. S. constitution where the felony murder statute was violated more than two hours after the kidnapping and at a point almost 60 miles from the place of abduction at which point the victim was strangled and stabbed. State v. Kersey, 1995-NMSC-054, 120 N.M. 517, 903 P.2d 828, 1995 N.M. LEXIS 317 (N.M. 1995).

Sentencing of defendant, who was convicted of escape from an inmate release program, as a habitual offender based on a prior felony conviction did not constitute double jeopardy because defendant’s status as a felon merely caused defendant to be lawfully incarcerated in the place from which he subsequently escaped; therefore, defendant’s felon status was one step removed from the elements that formed the basis of his conviction for escape, and the same facts or status did not give rise to multiple punishments. State v. Najar, 1994-NMCA-098, 118 N.M. 230, 880 P.2d 327, 1994 N.M. App. LEXIS 92 (N.M. Ct. App.), cert. denied, 118 N.M. 90, 879 P.2d 91, 1994 N.M. LEXIS 309 (N.M. 1994).

Although defendant committed the crimes of criminal sexual contact of a minor (CSCM) in violation of 30-9-13A NMSA 1978 (Cum. Supp. 1990) and contributing to the delinquency of a minor (CDM) in violation of 30-6-3 NMSA 1978 (Repl. Pamp. 1984) by the same unlawful and intentional touching of the minor’s genitals, two offenses were committed, and the convictions under both statues for the same conduct did not violate double jeopardy because the two crimes each required proof of a fact that the other did not; CDM required proof that defendant’s act contributed to the delinquency of a minor, and the New Mexico’s appellate courts have consistently upheld findings that an unlawful sexual touching or penetration supported a CDM conviction even in the absence of a showing that defendant’s acts actually led to delinquency. The legislature intended for the crimes of CSCM and CDM to be separate crimes, punishable even when unitary conduct violated both statutes. State v. Trevino, 1993-NMSC-067, 116 N.M. 528, 865 P.2d 1172, 1993 N.M. LEXIS 347 (N.M. 1993).

Separate, consecutive sentences for sexual assault and incest arising from the same conduct did not violate double jeopardy because the legislature intended there to be separate punishments. Swafford v. State, 1991-NMSC-043, 112 N.M. 3, 810 P.2d 1223, 1991 N.M. LEXIS 166 (N.M. 1991).

Double jeopardy barred retrying defendants on charges of embezzlement or larceny over $250 in violation of 30-16-8 NMSA 1978, 30-16-1 NMSA 1978, and 30-1-13 NMSA 1978 and conspiracy to commit either embezzlement or larceny in violation of 30-28-2 NMSA 1978 after a trial court dismissed the indictments against defendants with prejudice upon a finding that the prosecution could not prove the elements of larceny or embezzlement over $ 250. State v. Archuleta, 1991-NMCA-032, 112 N.M. 55, 811 P.2d 88, 1991 N.M. App. LEXIS 142 (N.M. Ct. App.), cert. denied, 112 N.M. 21, 810 P.2d 1241, 1991 N.M. LEXIS 152 (N.M. 1991).

Defendant, by deliberately choosing to seek termination of trial for driving while intoxicated on a basis unrelated to factual guilt or innocence of the charged offense, suffered no injury cognizable under the double jeopardy clause where the government was permitted to appeal from such a ruling of the trial court in favor of defendant. County of Los Alamos v. Tapia, 1990-NMSC-038, 109 N.M. 736, 790 P.2d 1017, 1990 N.M. LEXIS 121 (N.M. 1990), overruled in part, City of Santa Fe v. Marquez, 2012-NMSC-031, 285 P.3d 637, 2012 N.M. LEXIS 328 (N.M. 2012).

Double Jeopardy Clause of U.S. Const. amends. V and N.M. Const. art II  § 15 did not forbid reconsideration of the delay issue because the jury had not been empaneled before the dismissal; thus, the Double Jeopardy Clause was not a barrier to the district court’s reconsideration of its prior ruling. State v. Gonzales, 1990-NMCA-040, 110 N.M. 218, 794 P.2d 361, 1990 N.M. App. LEXIS 45 (N.M. Ct. App. 1990), aff'd, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630, 1991 N.M. LEXIS 59 (N.M. 1991).

Where defendant was acquitted of aggravated assault on a peace officer and found guilty on another charge, but an appellate court reversed on the ground that the trial court lacked jurisdiction over defendant, the appellate decision voided both the conviction and the verdict of acquittal; thus, defendant was subject to retrial on the charge of aggravated assault on a police officer. State v. Hamilton, 1988-NMCA-023, 107 N.M. 186, 754 P.2d 857, 1988 N.M. App. LEXIS 20 (N.M. Ct. App.), cert. denied, 107 N.M. 132, 753 P.2d 1320, 1988 N.M. LEXIS 95 (N.M. 1988).

Defendant, who kicked an officer while being handcuffed, was subjected to double jeopardy when he was tried for peace officer battery after being convicted of resisting arrest, which was a lesser included offense of peace officer battery. State v. Padilla, 1983-NMCA-096, 101 N.M. 78, 678 P.2d 706, 1983 N.M. App. LEXIS 767 (N.M. Ct. App. 1983), aff'd in part and rev'd in part, 1984-NMSC-026, 101 N.M. 58, 678 P.2d 686, 1984 N.M. LEXIS 1641 (N.M. 1984).

Where defendant was acquitted of misdemeanor assault charges because a magistrate determined that defendant’s actions were in defense of another, the state could not try defendant on the charge of battery upon a police officer because defendant was asserting the identical defense and the state was collaterally estopped from challenging the magistrate’s factual determination. State v. Orosco, 1982-NMCA-181, 99 N.M. 180, 655 P.2d 1024, 1982 N.M. App. LEXIS 981 (N.M. Ct. App. 1982).

Once the state seeks a determination of an ultimate fact in a magistrate court and is given an adverse ruling, it cannot seek a redetermination of the same fact anticipating a favorable ruling, because to do so would grant the state a second bite of the apple, which is prohibited by the Fifth Amendment’s guarantee against double jeopardy. State v. Orosco, 1982-NMCA-181, 99 N.M. 180, 655 P.2d 1024, 1982 N.M. App. LEXIS 981 (N.M. Ct. App. 1982).

Under U.S. Const. amends. V double jeopardy attached to defendant, precluding a second trial on criminal charges, where a mistrial was granted not at the behest of defendant; the prosecutor failed to show a “manifest necessity” or “compelling reason” for the granting of the mistrial simply because defense counsel mentioned a lie detector man. State v. Sedillo, 1975-NMCA-089, 88 N.M. 240, 539 P.2d 630, 1975 N.M. App. LEXIS 702 (N.M. Ct. App. 1975).

The rule that retrial after a mistrial is barred by the prohibition against double jeopardy where the mistrial was caused by prosecutorial misconduct does not apply where a defendant requests a mistrial; a motion for mistrial by the defendant ordinarily removes the barrier to reprosecution. State v. Mazurek, 1975-NMCA-066, 88 N.M. 56, 537 P.2d 51, 1975 N.M. App. LEXIS 668 (N.M. Ct. App. 1975).

Defendant was placed in double jeopardy where a trial court increased his sentence after he had served a substantial portion of the original sentence; the trial court was without power to set aside the original sentence, which was valid, and the judgment attempting to do so was thus void. State v. Allen, 1971-NMSC-026, 82 N.M. 373, 482 P.2d 237, 1971 N.M. LEXIS 1530 (N.M. 1971).

Worker, whose workers’ compensation claim was denied, failed to support his claim that his constitutional rights were violated. There was no evidence presented that the worker was denied a fair hearing, or that he was held to a high standard, or that the Workers’ Compensation Act [52-1-1 NMSA 1978] was otherwise unconstitutional. Grine v. Peabody Natural Res., 2005-NMCA-075, 137 N.M. 649, 114 P.3d 329, 2005 N.M. App. LEXIS 65 (N.M. Ct. App. 2005), rev'd, in part, 2006-NMSC-031, 140 N.M. 30, 139 P.3d 190, 2006 N.M. LEXIS 334 (N.M. 2006).

Notice to taxpayer of an impending tax sale was adequate when the Property Tax Division used a method of notice, which was mailed to the taxpayer’s home, but it went unclaimed, that was reasonably calculated to apprise the taxpayer of the sale. Cordova v. Taxation & Revenue, Prop. Tax Div., 2005-NMCA-009, 136 N.M. 713, 104 P.3d 1104, 2004 N.M. App. LEXIS 131 (N.M. Ct. App. 2004).

Appellate court rejects a per se rule that examines the adequacy of notice solely by reference to the information available to the notice sender as of the date of mailing. Cordova v. Taxation & Revenue, Prop. Tax Div., 2005-NMCA-009, 136 N.M. 713, 104 P.3d 1104, 2004 N.M. App. LEXIS 131 (N.M. Ct. App. 2004).

The statutory language “as soon as practicable” in the life enhancement statute, 31-18-26B NMSA 1978 means that the life enhancement proceeding must be conducted without undue delay but there is no indication from the statutory language that the legislature intended to impose a specific time limitation on the commencement of life enhancement proceedings; thus, in a prosecution of defendant for criminal sexual penetration of a child, a trial court did not err by granting a continuance of the life enhancement proceeding against defendant under 31-18-25F NMSA 1978 based on defendant’s previous convictions for lewd acts on a child because defendant failed to demonstrate that he suffered actual prejudice in connection with the continuance of the life enhancement proceeding or that the delay violated his rights to due process or a speedy trial under U.S. Const. amends. V §§ VI, XIV and N.M. Const. art II  § 14, 18. State v. Massengill, 2003-NMCA-024, 133 N.M. 263, 62 P.3d 354, 2002 N.M. App. LEXIS 114 (N.M. Ct. App. 2002), cert. denied, 133 N.M. 126, 61 P.3d 835, 2003 N.M. LEXIS 3 (N.M. 2003).

Right to due process does not include the right to a jury trial in termination of parental rights cases. State ex rel. Children, Youth & Families Dep't v. T.J., 1997-NMCA-021, 123 N.M. 99, 934 P.2d 293, 1997 N.M. App. LEXIS 7 (N.M. Ct. App. 1997).

Verdict of guilty but mentally ill did not violate the Due Process and Equal Protection Clauses of the state and federal constitutions, nor did it constitute cruel and unusual punishment; defendant was criminally responsible for first-degree murder. State v. Neely, 1991-NMSC-087, 112 N.M. 702, 819 P.2d 249, 1991 N.M. LEXIS 330 (N.M. 1991).

Defendant was required to prove that he had been prejudiced by the delay between his arrest and indictment and that the delay was intended to give the state a tactical advantage in order to establish a violation of his due process rights based on a pre-accusation delay. Gonzales v. State, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630, 1991 N.M. LEXIS 59 (N.M. 1991).

While statutes of limitation provide the primary protection against delay-induced prejudice, the due process clause of the U.S. Const. amends. V provides additional, albeit limited, protection against improper pre-accusation delay. Gonzales v. State, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630, 1991 N.M. LEXIS 59 (N.M. 1991).

A defendant’s consecutive sentences for kidnapping and criminal sexual penetration did not violate the double jeopardy prohibition against multiple punishments for the same offense under U.S. Const. amends. V and N.M. Const. art II  § 15, but the court’s failure to comply with 31-18-15.1 NMSA 1978 required resentencing. State v. McGuire, 1990-NMSC-067, 110 N.M. 304, 795 P.2d 996, 1990 N.M. LEXIS 217 (N.M. 1990).

U.S. Const., amends. 5, 14 require reversal of any conviction obtained in a proceeding in which the cumulative impact of irregularities is so prejudicial to a defendant that he is deprived of his fundamental right to a fair trial. State v. Wilson, 1990-NMSC-019, 109 N.M. 541, 787 P.2d 821, 1990 N.M. LEXIS 44 (N.M. 1990).

Presence of a law enforcement official without judicial process during a self-help repossession was an unconstitutional deprivation of the debtor’s rights under U.S. Const. amends. V §§ and XIV. Waisner v. Jones, 1988-NMSC-049, 107 N.M. 260, 755 P.2d 598, 6 U.C.C. Rep. Serv. 2d (CBC) 1374, 1988 N.M. LEXIS 166 (N.M. 1988).

Confession given to a New Mexico state police officer while defendant was in custody in Mexico was properly admitted into evidence, even though the advice of rights form that defendant signed did not inform him that an attorney would be provided if he could not afford one; defendant’s sixth and fourteenth amendment rights did not apply while he was in custody in Mexico. State v. Cranford, 1971-NMSC-120, 83 N.M. 294, 491 P.2d 511, 1971 N.M. LEXIS 1628 (N.M. 1971), cert. denied, 409 U.S. 854, 93 S. Ct. 190, 34 L. Ed. 2d 98, 1972 U.S. LEXIS 1382 (U.S. 1972).

Railroad’s taking of a landowner’s property through condemnation did not violate the landowner’s rights under U.S. Const. amends. V and U.S. Const. amends. XIV, although the landowner was only paid from the date of the notice of condemnation and she alleged that the railroad had entered the land four years earlier. Atchison, T. & S. F. Ry. v. Richter, 20 N.M. 278, 148 P. 478, 1915 N.M. LEXIS 33, 1915 N.M. LEXIS 34 (N.M. 1915).

Admission into evidence of volunteered statements made by a defendant after his arrest but before he was given Miranda warnings was not prohibited by U.S. Const. amends. IV §§ and V where questions asked by the arresting officer in response to the volunteered statements were not of a type designed to elicit incriminating responses. State v. Ferrari, 1969-NMSC-146, 80 N.M. 714, 460 P.2d 244, 1969 N.M. LEXIS 1647 (N.M. 1969).

Evidence of a driver’s refusal to take a breath-alcohol test was admissible under the Implied Consent Act, 66-8-105 to 66-8-112 NMSA 1978, and the introduction of and comment on the driver’s refusal to take a breath-alcohol test did not violate U.S. Const. amends. V; further, the evidence of the driver’s refusal to take the test was relevant to show consciousness of guilt and fear of the test results. McKay v. Davis, 1982-NMSC-122, 99 N.M. 29, 653 P.2d 860, 1982 N.M. LEXIS 2905 (N.M. 1982).

In a prosecution of defendant for criminal sexual penetration and abuse of a child by endangerment, the admission into evidence under the catch-all exception to the hearsay rule, Rule 11-804B5 NMRA, of the child’s out-of court statements to her parents that defendant had caused the bruise on her labia by pinching her did not violate defendant’s constitutional right to confront witnesses against him under U.S. Const. amends. V §§ VI, XIV and N.M. Const. art II  § 14, 18. Defendant’s constitutional right to confront witnesses was not violated because there was a showing of particularized guarantees of trustworthiness of the statements where: the parents asked non-leading questions to which the child responded immediately and specifically with no equivocation that defendant had pinched her, accompanied by a pinching gesture that she made with her fingers; the child told both parents the same thing, consistently identifying defendant as the one who had pinched her; the child’s statements to her parents were made on the same day the bruise was discovered, when the events of the day would have been fresh in the child’s memory; and there was no danger of misperception in that the child’s statements were consistent, straightforward responses to her parents’ non-leading questions. State v. Massengill, 2003-NMCA-024, 133 N.M. 263, 62 P.3d 354, 2002 N.M. App. LEXIS 114 (N.M. Ct. App. 2002), cert. denied, 133 N.M. 126, 61 P.3d 835, 2003 N.M. LEXIS 3 (N.M. 2003).

Prosecutor’s examination of a detective about defendant’s post-arrest statement that defendant knew of the victim, but that anything defendant said would likely implicate him in the crime, was not an improper comment by the prosecutor on defendant’s right to remain silent, as guaranteed by U.S. Const. amends. V. State v. Allen, 2000-NMSC-002, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, 1999 N.M. LEXIS 378 (N.M. 1999), cert. denied, 530 U.S. 1218, 120 S. Ct. 2225, 147 L. Ed. 2d 256, 2000 U.S. LEXIS 3878 (U.S. 2000).

Defendant’s 100 minute interrogation by two federal agents in the backseat of a police car, resulting in a signed confession to murder, did not constitute custodial interrogation where defendant, an 18-year old high school graduate, voluntarily accompanied the agents, he was not placed under arrest, he was told that he was free to leave at any time and that the agents would bring him back home, he was not handcuffed or searched, the car doors were not locked, and the car was parked in a public parking lot during daylight hours; therefore, defendant was not in custody when he gave his confession, it was not necessary that he be given Miranda warnings, and his privilege against self-incrimination under U.S. Const. amends. V was not violated. State v. Munoz, 1998-NMSC-048, 126 N.M. 535, 972 P.2d 847, 1998 N.M. LEXIS 443 (N.M. 1998).

Introduction of and comment on defendant’s refusal to take a breath-alcohol test did not violate U.S. Const. amends. V and was admissible under the Implied Consent Act, 66-8-105 NMSA 1978 et seq., at his trial for driving while intoxicated. Defendant’s refusal to take the breath-alcohol test was relevant under N.M. Evid. R. 401 to show defendant’s consciousness of guilt and fear of the test results. McKay v. Davis, 1982-NMSC-122, 99 N.M. 29, 653 P.2d 860, 1982 N.M. LEXIS 2905 (N.M. 1982).

Defendant’s statements were properly admissible because they were spontaneous and voluntary and not the result of questioning by a police officer even though they were made subsequent to a statement that was given in violation of her Miranda rights; the state overcame the heavy burden of presumptive inadmissibility and showed the statements were not tainted by the prior statements. State v. Poller, 1979-NMCA-020, 93 N.M. 257, 599 P.2d 1054, 1979 N.M. App. LEXIS 850 (N.M. Ct. App.), cert. denied, 92 N.M. 621, 593 P.2d 62, 1979 N.M. LEXIS 1429 (N.M. 1979).

Handwriting exemplar obtained from defendant was an identifying physical characteristic, not communication or testimony, thus was outside the protection of U.S. Const. amends. V; the taking of such an exemplar was not a “critical stage” of proceedings, thus defendant’s right to counsel did not attach under U.S. Const. amends. VI. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768, 1967 N.M. LEXIS 2612 (N.M. 1967).

Admission of defendant’s statements to police was not reversible where evidence supported a finding of Miranda warnings, the interrogation was non-custodial, and no prejudice resulted in that the statements were repeated in defendant’s testimony. State v. Sneed, 1967-NMSC-272, 78 N.M. 615, 435 P.2d 768, 1967 N.M. LEXIS 2612 (N.M. 1967).

Where a prosecutor’s choice of words did not exclude a reasonable interpretation that he was making a direct comment on defendant’s failure to testify, defendant’s conviction for aggravated battery with a deadly weapon was reversed and defendant was granted a new trial because the prosecutor’s comment violated U.S. Const. amends. V.; U.S. Const. amends. V. forbids comment by the prosecution on the accused’s failure to testify at trial. Gonzales v. State, 1980-NMSC-070, 94 N.M. 495, 612 P.2d 1306, 1980 N.M. LEXIS 2697 (N.M. 1980).

By requiring a respondent attorney to pay for the transcript of a disciplinary hearing in advance, prior to a determination on the merits by the New Mexico supreme court, former 21-2-1(12), 1953 Comp. could result in a denial of proper presentation and trial, and thus it was a denial of constitutional due process guarantees under U.S. Const. amends. V §§ XIV. In re Nelson, 1968-NMSC-028, 78 N.M. 739, 437 P.2d 1008, 1968 N.M. LEXIS 1892 (N.M. 1968).

Under U.S. Const. amends. V §§ and VI, a defendant is entitled to have the question of materiality submitted to the jury; thus, in defendant’s trial on perjury charges, under 30-25-1 NMSA 1978, a trial court committed reversible error by failing to instruct the jury on the essential element of materiality. State v. Benavidez, 1999-NMCA-053, 127 N.M. 189, 979 P.2d 234, 1998 N.M. App. LEXIS 198 (N.M. Ct. App. 1998), different results reached on reh'g, 1999-NMCA-054, 127 N.M. 206, 979 P.2d 251, 1999 N.M. App. LEXIS 33 (N.M. Ct. App. 1999), aff'd in part and rev'd in part, vacated, 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274, 1999 N.M. LEXIS 325 (N.M. 1999).

Prejudice is presumed where a party in a criminal trial is compelled to use peremptory challenges on persons who should be excused for cause and that party exercises all of his peremptory challenges before the court completes the venire; because the presumption of prejudice that applied to the criminal proceedings against defendant could not be rebutted, defendant had the right to a new trial by application of U.S. Const. amends. V and N.M. Const. art II  § 14, which guarantee defendant a right to an impartial jury. Fuson v. State, 1987-NMSC-034, 105 N.M. 632, 735 P.2d 1138, 1987 N.M. LEXIS 3706 (N.M. 1987).

In a condemnation action, the contention of a landowner that allowing the county to unilaterally abandon the proceedings after the permanent order of entry had been entered was inconsistent with the language in 42-2-6C NMSA 1978 and with New Mexico case law was without merit because although the court recognized that U.S. Const. amends. V and N.M. Const. art III  § 20 guaranteed the payment of just compensation for the taking of land, it was not persuaded that the landowner’s right to compensation, which coincided with the entry of a permanent order of entry under New Mexico case law, necessarily determined when a condemner could no longer unilaterally abandon the proceedings; instead, a better approach was to allow the abandonment of the proceedings anytime before the entry of a final judgment confirming the compensation award. County of Bernalillo v. Morris, 1994-NMCA-038, 117 N.M. 398, 872 P.2d 371, 1994 N.M. App. LEXIS 39 (N.M. Ct. App.), cert. denied, 117 N.M. 524, 873 P.2d 270, 1994 N.M. LEXIS 173 (N.M. 1994).

Defendant was not entitled to post-conviction relief under former 21-1-1, 1953 Comp., on the grounds that his right to remain silent under the Fifth Amendment and his right to counsel under the Sixth Amendment had been violated and that his living quarters had been searched illegally because there was nothing in the record indicating that defendant was in fact interrogated without being advised of his rights or that his living quarters were searched. Moreover, neither the statements made in the absence of counsel nor the evidence obtained by the alleged search were used against defendant because he entered a guilty plea. State v. Elledge, 1967-NMSC-143, 78 N.M. 157, 429 P.2d 355, 1967 N.M. LEXIS 2743 (N.M. 1967).

Defendant was not subjected to double jeopardy in violation of U.S. Const. amends. V and N.M. Const. art II  § 15 when he was retried after a mistrial had been declared during his first trial because his counsel became ill where justifiable reasons existed for granting the mistrial, rather than a continuance, due to scheduling conflicts. State v. Saavedra, 1988-NMSC-100, 108 N.M. 38, 766 P.2d 298, 1988 N.M. LEXIS 322 (N.M. 1988).

Although the Judicial Retirement Act, 10-12B-1 NMSA 1978 et seq., conferred property rights that vested upon accumulating the minimum earned service credits, those rights did not include the right to receive pension benefits exempt from tax, and the repeal of the tax exemption for such benefits did not violate N.M. Const. art II  § 18 and 20 or U.S. Const. amends. V §§ and XIV, § 1. Pierce v. State, 1996-NMSC-001, 121 N.M. 212, 910 P.2d 288, 1995 N.M. LEXIS 406 (N.M. 1995).

Although the Educational Retirement Act, 22-11-1 NMSA 1978 et seq., conferred property rights that vested upon accumulating the minimum earned service credits, those rights did not include the right to receive pension benefits exempt from tax, and the repeal of the tax exemption for such benefits did not violate N.M. Const. art II  § 18 and 20 or U.S. Const. amends. V §§ and XIV, § 1. Pierce v. State, 1996-NMSC-001, 121 N.M. 212, 910 P.2d 288, 1995 N.M. LEXIS 406 (N.M. 1995).

Although the Magistrate Retirement Act, 10-12C-1 to 10-12C-16 NMSA 1978, conferred property rights that vested upon accumulating the minimum earned service credits, those rights did not include the right to receive pension benefits exempt from tax, and the repeal of the tax exemption for such benefits did not violate N.M. Const. art II  § 18 and 20 or U.S. Const. amends. V §§ and XIV, § 1. Pierce v. State, 1996-NMSC-001, 121 N.M. 212, 910 P.2d 288, 1995 N.M. LEXIS 406 (N.M. 1995).

Although the Public Employees Retirement Act, 10-11-1 to 10-11-141 NMSA 1978, conferred property rights that vested upon accumulating the minimum earned service credits, those rights did not include the right to receive pension benefits exempt from tax, and the repeal of the tax exemption for such benefits did not violate N.M. Const. art II  § 18 and 20 or U.S. Const. amends. V §§ and XIV, § 1. Pierce v. State, 1996-NMSC-001, 121 N.M. 212, 910 P.2d 288, 1995 N.M. LEXIS 406 (N.M. 1995).

New Mexico Highway Beautification Act, 67-12-1 et seq. NMSA 1978, is a valid exercise of the police power and enforcement of the Act does not violate the just compensation clauses of the United States and New Mexico Constitutions. Stuckey's Stores v. O'Cheskey, 1979-NMSC-060, 93 N.M. 312, 600 P.2d 258, 1979 N.M. LEXIS 1242 (N.M. 1979).

There was no violation of defendant’s right to silence under U.S. Const. amends. V in a prosecutor’s closing argument. Even if there were, the jury was instructed, under UJI 14-5031, that they could not draw any inference of guilt from the fact that defendant did not testify nor could that fact be discussed by them or enter into their deliberations in any way, and juries were presumed to have followed the written instructions. State v. Smith, 2001-NMSC-004, 130 N.M. 117, 19 P.3d 254, 2001 N.M. LEXIS 45 (N.M. 2001).

Prosecutor’s isolated comment made during closing argument that although defense counsel had stated that defendant remained in the car during the crime, there had been no testimony to that effect, did not violate defendant’s privilege against self-incrimination. State v. Smith, 2001-NMSC-004, 130 N.M. 117, 19 P.3d 254, 2001 N.M. LEXIS 45 (N.M. 2001).

Defendant’s right to silence was not violated where the prosecutor’s single question was not answered, defense counsel immediately objected, the prosecutor did not pursue the matter further, and defense counsel refused a curative instruction. State v. Smith, 2001-NMSC-004, 130 N.M. 117, 19 P.3d 254, 2001 N.M. LEXIS 45 (N.M. 2001).

Trial court did not violate defendant’s U.S Const. amend V right to be free from compelled self-incrimination in sentencing defendant to a prison term for two counts of distribution of marijuana after defendant refused to disclose drug supplier’s name in open court; argument that providing the name would jeopardize defendant’s physical safety and defendant’s family’s physical safety did not fall within the purview of Fifth Amendment protection. State v. Sosa, 1996-NMSC-057, 122 N.M. 446, 926 P.2d 299, 1996 N.M. LEXIS 377 (N.M. 1996).

U.S. Const. amends. V privilege against compelled self-incrimination is not self-executing and, at least where the government has no substantial reason to believe that the requested disclosures are likely to be incriminating, the privilege may not be relied upon unless it is invoked in a timely fashion. State v. Sosa, 1996-NMSC-057, 122 N.M. 446, 926 P.2d 299, 1996 N.M. LEXIS 377 (N.M. 1996).

Apart from inquiry on defendant’s statement that he might “deal” with the district attorney, specific questioning by the prosecutor asking defendant why he had waited until trial to assert his innocence or to tell his version of the events preceding his arrest amounted to a direct, impermissible comment on defendant’s Fifth Amendment right to post-arrest silence. State v. Carrasco, 1996-NMCA-114, 122 N.M. 554, 928 P.2d 939, 1996 N.M. App. LEXIS 95 (N.M. Ct. App. 1996), aff'd in part and rev'd in part, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075, 1997 N.M. LEXIS 364 (N.M. 1997).

Single statement volunteered by a defendant following arrest does not mean that the defendant has automatically waived his or her right to remain silent or the right to remain free from comment on his or her post-arrest silence. State v. Carrasco, 1996-NMCA-114, 122 N.M. 554, 928 P.2d 939, 1996 N.M. App. LEXIS 95 (N.M. Ct. App. 1996), aff'd in part and rev'd in part, 1997-NMSC-047, 124 N.M. 64, 946 P.2d 1075, 1997 N.M. LEXIS 364 (N.M. 1997).

Although a jury could have concluded from the prosecutor’s closing argument that if defendant had had an explanation for how he came to possess the stolen goods he would have given it and therefore, because defendant did not testify and provide such an explanation he must be guilty, defendant’s U.S. Const. amends. V rights were had not been violated. Defense counsel had opened the door by trying to use defendant’s silence for tactical advantage, and the prosecutor did no more than respond in kind and in measured tones to what defense counsel had already brought up before the jury. State v. Padilla, 1996-NMCA-072, 122 N.M. 92, 920 P.2d 1046, 1996 N.M. App. LEXIS 52 (N.M. Ct. App. 1996).

Inculpatory statement made at a preliminary parole revocation hearing was properly admitted at defendant’s later trial for possession of cocaine where defendant did not invoke his privilege against self-incrimination at the hearing, he was not compelled to attend the hearing, the hearing officer’s offer to defendant of an opportunity to admit or deny the allegation could not properly be characterized as a conscious attempt to seek incriminating evidence, defendant was not surprised by the nature of the proceeding and was afforded the opportunity to obtain counsel, and the presence of a neutral hearing officer and the advice of his rights by the officer effectively eliminated the opportunity for abuse or trickery, such as misleading defendant into thinking that his statements would be confidential. State v. Gutierrez, 1995-NMCA-018, 119 N.M. 618, 894 P.2d 395, 1995 N.M. App. LEXIS 16 (N.M. Ct. App. 1995).

Defendant’s conviction for driving while under the influence of an intoxicating liquor in violation of 66-8-102 NMSA 1978 was proper because her right to to be free of self-incrimination was not violated by admission of evidence that she refused to take a field sobriety test and this evidence did not violate U.S. Const. amends. V or N.M. Const. art II  § 15. State v. Wright, 1993-NMCA-153, 116 N.M. 832, 867 P.2d 1214, 1993 N.M. App. LEXIS 156 (N.M. Ct. App. 1993), cert. denied, 117 N.M. 121, 869 P.2d 820, 1994 N.M. LEXIS 27 (N.M. 1994).

Comment by the prosecutor upon a defendant’s failure to testify violates the privilege against self-incrimination guaranteed by the Fifth and Fourteenth Amendments. The protection of the Fifth Amendment privilege is fully applicable to the sentencing phase of a capital murder trial. The standard generally used for evaluating allegedly improper prosecutorial comments is whether the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. State v. Clark, 1989-NMSC-010, 108 N.M. 288, 772 P.2d 322, 1989 N.M. LEXIS 127 (N.M. 1989), cert. denied, 493 U.S. 923, 110 S. Ct. 291, 107 L. Ed. 2d 271, 1989 U.S. LEXIS 4983 (U.S. 1989), overruled,  State v. Henderson, 1990-NMSC-030, 109 N.M. 655, 789 P.2d 603, 1990 N.M. LEXIS 100 (N.M. 1990), overruled in part as stated in State v. Sanchez, 1996-NMCA-089, 122 N.M. 280, 923 P.2d 1165, 1996 N.M. App. LEXIS 68 (N.M. Ct. App. 1996).

Defendant’s first-degree murder conviction was reversed because the prosecutor made improper comments about defendant’s decision to exercise her right to remain silent pursuant to N.M. Const. art II  § 15 and U.S. Const. amends. V, which prohibit impeachment on the basis of a defendant’s silence following Miranda warnings. State v. Martin, 1984-NMSC-077, 101 N.M. 595, 686 P.2d 937, 1984 N.M. LEXIS 1677 (N.M. 1984).

Statement is voluntary if the evidence demonstrates that a defendant had sufficient mental capacity at that time to be conscious of what he was doing, to retain memory of his actions, and to relate with reasonable accuracy the details of his actions. State v. Harge, 1979-NMCA-120, 94 N.M. 11, 606 P.2d 1105, 1979 N.M. App. LEXIS 726 (N.M. Ct. App. 1979), overruled,  Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244, 1981 N.M. LEXIS 2392 (N.M. 1981).

Test for voluntariness of a statement is based upon a clear manifestation by words and circumstances of a free and unconstrained choice. State v. Harge, 1979-NMCA-120, 94 N.M. 11, 606 P.2d 1105, 1979 N.M. App. LEXIS 726 (N.M. Ct. App. 1979), overruled,  Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244, 1981 N.M. LEXIS 2392 (N.M. 1981).

Defendant’s Fifth Amendment right against self-incrimination did not require suppressing statements made in grand jury proceedings; that he voluntarily appeared and testified, and that his attorney was just outside the jury room while he testified, was ample evidence that his statements were not compelled. State v. Harge, 1979-NMCA-120, 94 N.M. 11, 606 P.2d 1105, 1979 N.M. App. LEXIS 726 (N.M. Ct. App. 1979), overruled,  Buzbee v. Donnelly, 1981-NMSC-097, 96 N.M. 692, 634 P.2d 1244, 1981 N.M. LEXIS 2392 (N.M. 1981).

Because a search warrant did not meet the statutory requirements for the form and contents of search warrants and the defects could not be classified as minor, a defendant was granted a new trial free of any evidence seized under the search warrant; the seized evidence violated defendant’s right of unreasonable searches and seizures and his right against self-incrimination. State v. Montoya, 1974-NMCA-017, 86 N.M. 119, 520 P.2d 275, 1974 N.M. App. LEXIS 631 (N.M. Ct. App. 1974).

Witness at a murder trial could raise his fifth amendment privilege against self-incrimination where he had testified falsely before the grand jury, because his own perjury was or would be a crime for which he could be subject to prosecution if he either reiterated his earlier story, or told a different story, the truth, at the subsequent trial. State v. Zamora, 1972-NMCA-126, 84 N.M. 245, 501 P.2d 689, 1972 N.M. App. LEXIS 844 (N.M. Ct. App. 1972).

Where the district attorney in closing argument commented on defendant’s truthfulness and his invocation of his right against self-incrimination, defendant was denied a fair trial under the Fifth Amendment, and his conviction for armed robbery was error. State v. Martin, 1972-NMCA-081, 84 N.M. 27, 498 P.2d 1370, 1972 N.M. App. LEXIS 801 (N.M. Ct. App. 1972).

Defendant’s convictions for armed robbery and for kidnapping were proper because substantial evidence existed supporting their convictions and because defendant’s right against self-incrimination as provided by the U.S. Const. amends. V was not violated when some samples of his hair were compared to those found in a nylon cap at the scene of the crime. State v. Williamson, 1968-NMSC-033, 78 N.M. 751, 438 P.2d 161, 1968 N.M. LEXIS 1894 (N.M.), cert. denied, 393 U.S. 891, 89 S. Ct. 212, 21 L. Ed. 2d 170, 1968 U.S. LEXIS 1058 (U.S. 1968).

Where a defendant’s convictions for aggravated battery and for negligent arson arose from his dousing his victim with gasoline and setting him afire, he was not subjected to double jeopardy under U.S. Const. amends. V and N.M. Const. art II  § 15 because the offenses protected different societal interests, and he failed to rebut the presumption of legislative intent to separately punish them. State v. Meadors, 1995-NMSC-073, 121 N.M. 38, 908 P.2d 731, 1995 N.M. LEXIS 391 (N.M. 1995).

Where the evidence supported only one of two charges against defendant of child abuse not resulting in death and only one charge of child abuse resulting in death, 30-6-1C NMSA 1978, which offenses merged into the greater offense of first-degree murder, 30-2-1A(1) NMSA 1978, both U.S. Const. amends. V and N.M. Const. art II  § 15 precluded the imposition of multiple punishments for the one offense. State v. Pierce, 1990-NMSC-049, 110 N.M. 76, 792 P.2d 408, 1990 N.M. LEXIS 567 (N.M. 1990).

Under former 40-42-2 and 40-45-2, 1953 Comp., offenses of grand larceny and armed robbery arose out of the same transaction, were committed at the same time, and were a part of a single criminal act, defendant was properly convicted of both crimes, but he could not be doubly punished for both; because the act of grand larceny was necessary to, or incidental to the crime of armed robbery, the offense of grand larceny was merged with the graver offense. State v. Quintana, 1961-NMSC-108, 69 N.M. 51, 364 P.2d 120, 1961 N.M. LEXIS 1595 (N.M. 1961).

Where there were no facts to indicate that defendant’s statement was made in response to “interrogation,” but was volunteered, the admission of the statements into evidence was not prohibited by U.S. Const. amends. V §§ XIV, and, because the admissibility of a gun turned entirely on the legality of the interrogation which led to its recovery, the trial court’s suppression of the gun was reversed and remanded for reconsideration along with the statement that led to its recovery. State v. Greene, 1977-NMSC-111, 91 N.M. 207, 572 P.2d 935, 1977 N.M. LEXIS 1112 (N.M. 1977), disapproved as stated in Solem v. Stumes, 465 U.S. 638, 104 S. Ct. 1338, 79 L. Ed. 2d 579, 1984 U.S. LEXIS 36 (U.S. 1984).

Defendant was entitled to a new trial on three counts of first degree criminal sexual penetration in violation of 30-9-11A NMSA 1978 where the trial court erred in denying defendant’s motion to suppress evidence because seizure of tapes found in a drawer and a recorder exceeded the scope of a search warrant for marijuana and nude photographs; because the tapes and recorder were seized in violation of the U.S. Const. amends. IV §§ and XIV, they were inadmissible in evidence at defendant’s trial. State v. Turkal, 1979-NMSC-071, 93 N.M. 248, 599 P.2d 1045, 1979 N.M. LEXIS 1217 (N.M. 1979).

Facts supported non-unitary conduct for two violations of 30-3-8 NMSA 1978 where there were two shooting victims and two shooters that were separated by space. The jury could have found that defendant acted as a principal and shot one victim, and also acted as an accessory in the death of the other victim, and thus the jury’s conclusion did not violate double jeopardy. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563, 2005 N.M. LEXIS 78 (N.M. 2005), overruled,  State v. Montoya, 2013-NMSC-020, 306 P.3d 426, 2013 N.M. LEXIS 139 (N.M. 2013), overruled as stated in State v. Tungovia, No. 28914, 2013 N.M. App. Unpub. LEXIS 181 (N.M. Ct. App. June 13, 2013), overruled as stated in State v. Garcia, No. 29338, 2014 N.M. App. Unpub. LEXIS 56 (N.M. Ct. App. Feb. 12, 2014), overruled in part as stated in State v. Rudy B., No. 27589, 2014 N.M. App. Unpub. LEXIS 177 (N.M. Ct. App. May 8, 2014), overruled as stated in State v. Munoz, No. 30837, 2014 N.M. App. Unpub. LEXIS 208 (N.M. Ct. App. June 23, 2014), overruled as stated in State v. Franco, No. 33392, 2016-NMCA-074, 2016 N.M. App. LEXIS 54 (N.M. Ct. App. 2016).

State legislator convicted of bribery, fraud, and conspiracy under state law for agreeing to use his legislative influence to obtain additional local funding for a state governmental agency in exchange for a $15,000 fee was not denied his right to confront his co-conspirator after the co-conspirator invoked his right against self-incrimination under U.S. Const. amends. V; by failing to timely object at trial, the legislator waived error because the failure to object deprived the State of the chance to offer the witness use immunity under N.M. Const. art IV  § 41. State v. Olguin, 1994-NMCA-050, 118 N.M. 91, 879 P.2d 92, 1994 N.M. App. LEXIS 56 (N.M. Ct. App. 1994).

Where defendant was convicted of first-degree murder, shooting into an occupied motor vehicle, and felon in possession of a firearm, the admission at trial of testimony made at a preliminary hearing by a witness who exercised her Fifth Amendment privilege not to testify was proper; defendant had the opportunity to cross-examine the witness. State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023, 1992 N.M. LEXIS 38 (N.M. 1992), overruled as stated in State v. Tungovia, No. 28914, 2013 N.M. App. Unpub. LEXIS 181 (N.M. Ct. App. June 13, 2013), overruled as stated in State v. Munoz, No. 30837, 2014 N.M. App. Unpub. LEXIS 208 (N.M. Ct. App. June 23, 2014), overruled as stated in Dominguez v. State, 2015-NMSC-014, 348 P.3d 183, 2015 N.M. LEXIS 104 (N.M. 2015), overruled in part as stated in State v. Evensen, No. 33338, 2015 N.M. App. Unpub. LEXIS 179 (N.M. Ct. App. May 11, 2015).