Lesser Included Offenses and Double Jeopardy

The case involved indictment on charges for extreme animal cruelty. The jury was instructed on the lesser included offense of misdemeanor cruelty to animals. There was no objection to this instruction by the defense though the lesser included offense had not been charged. The defendant was acquitted of the extreme cruelty charges while the jury was unable to reach a verdict on the lesser included misdemeanor cruelty.

The State then attempted to bring charges for misdemeanor cruelty in a new action to which the defense objected on double jeopardy grounds. A defendant cannot typically be retried on lesser included offenses once double jeopardy kicks in. However, the New Mexico Supreme Court ruled that jeopardy had not arisen because the jury had deadlocked on the lesser included offense.

One related problem that arose was that the charge of misdemeanor cruelty had not been brought within the 2 year statute of limitations for misdemeanor charges. The Court ruled that this was not a bar because the statute of limitations requires only that a cause of action be brought within the prescribed time period and the extreme cruelty charges had met this requirement.

Interestingly, the Court noted that the defense had raised only the protection of the United States Constitution and had failed to invoke the broader protections of the New Mexico Constitution. Because the issue was not raised, the Court did not address them nor is it clear whether the outcome would have been different under the New Mexico Constitution.

Getting to the discussion, the Court set forth the protections afforded by the 5th Amendment Right against double jeopardy. Basically, the Court stated the long standing prohibitions against a second prosecution for the same offense whether it followed an acquittal or conviction, and multiple punishments for the same offense.

The Court discussed the fact that double jeopardy does not arise until it has both attached and terminated. This is an important discussion in the case since the double jeopardy did attach but did not terminate. Double jeopardy attaches upon swearing of the jury. It terminates once the jury has reached a verdict and enters a final judgment, either an acquittal or conviction.

In this case, double jeopardy did not terminate on the misdemeanor charges because these charges resulted in a hung jury and a mistrial. The Court states that double jeopardy attached when the jury instruction was given on the lesser included offense. The Court cited New Mexico Rule 5-611 (D) which allows a jury instruction and conviction by a jury on a lesser included offense. The Court states that this rule has been adopted by virtually every state.

Interestingly, the Court did not address the argument from the defense on due process. The Court said that the argument was not timely raised and could not be heard. Again, it is not clear what the outcome would have been since it seems to be clear violation of due process to bring lesser included offenses up only at the time of jury instructions preventing the defense from properly responding to the charges.

Likewise, it is not clear whether an objection by the defense would have changed the outcome in light of Rule 5-611 (D) which the Court suggests is more or less universally accepted. The Court did state in its discussion of the statute of limitations issue that procedural due process requires notice but stated that a defendant is on notice of all lesser included offenses. In light of this discussion, it does not seem that the outcome would have been any different had the objection been raised.

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Related Reading:
Double Jeopardy and Trial De Novo from New Mexico Magistrate Court
Double Jeopardy Issue Addressed in New Mexico Habitual Sentencing Case
Nolle Prosequi in New Mexico Criminal Cases: A Dismissal but Not Necessarily an End to the Case

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