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State v. Munoz6/24/2004
jillo, the Supreme Court rejected the defendant's argument that driving under the influence of liquor was a lesser-included offense of homicide by vehicle:
A conviction or acquittal of a lesser offense necessarily included in a greater offense bars a subsequent prosecution for the greater offense. Ex parte Williams, 58 N.M. 37, 265 P.2d 359 (1954);State v. Medina, 87 N.M. 394, 534 P.2d 486 (Ct. App. 1975). . . . [T]his principle is not applicable in this case because the indictment charges in the alternative. The lesser offense of driving while under the influence of intoxicating liquor is not necessarily included in the greater offense of homicide by vehicle. State v.Trujillo, 85 N.M. 208, 510 P.2d 1079 (Ct. App. 1973).
Id. at 335, 540 P.2d at 815 (emphasis added).
The Supreme Court's reliance on Trujillo in a double jeopardy context suggests that in 1975, when the Supreme Court decided Tanton, the Supreme Court viewed the test for determining whether two crimes were the "same offense" for double jeopardy purposes and the test for determining entitlement to a lesser-included offense instruction as largely interchangeable. Subsequently, the Supreme Court has recognized that although Rule 5-611(D) lesser-included offense instruction jurisprudence and double jeopardy jurisprudence both employ the descriptive term "lesser-included offense," they address different legal problems and bear only a "tangential relation" to each other. Swafford v. State, 112 N.M. 3, 12, 810 P.2d 1223, 1232 (1991).
Tanton was decided prior to Meadors and in the context of a pretrial motion to dismiss on double jeopardy grounds. Tanton has little or no precedential value in determining Defendant's entitlement under the Meadors cognate approach to a lesser-included offense instruction.
CONCLUSION
The district court erred by denying Defendant's request for an instruction on the lesser-included offense of DWI. We reverse Defendant's convictions for GBI by vehicle under Counts I and II, vacate the Judgment and Sentence imposed as to Counts I and II, and remand for a new trial on Counts I and II.
IT IS SO ORDERED.
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