This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
opinions. Please also note that this electronic memorandum opinion may contain
computer-generated errors or other deviations from the official paper version filed by the Court of
Appeals and does not include the filing date.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 32,064
5 TERESA MADRID,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
8 J.C. Robinson, District Judge
9 Gary K. King, Attorney General
10 Margaret E. McLean, Assistant Attorney General
11 Joel Jacobsen, Assistant Attorney General
12 Santa Fe, NM
13 for Appellee
14 Jorge A. Alvarado, Chief Public Defender
15 David Henderson, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
18 MEMORANDUM OPINION
19 VANZI, Judge.
1 {1} Defendant appeals her convictions for robbery, bribery or intimidation of a
2 witness, and larceny. Defendant makes three arguments on appeal. Defendant first
3 contends that the district court erred when it denied her motion to suppress an out-of-
4 court photographic identification because the photo array that rendered the
5 identification was impermissibly suggestive and because the witness’s identification
6 was not otherwise reliable. Second, Defendant argues that the district court erred when
7 it admitted the same witness’s derivative in-court identification, or in the alternative,
8 that trial counsel was ineffective by failing to object to the in-court identification.
9 Third, Defendant contends that her convictions for both robbery and larceny constitute
10 double jeopardy, an argument to which the State concedes. We hold that the district
11 court did not err when it denied the motion to suppress and admitted the in-court
12 identification and that trial counsel was not ineffective by failing to object to the in-
13 court identification. However, we agree that Defendant’s convictions for both robbery
14 and larceny constitute double jeopardy. We therefore affirm Defendant’s convictions
15 for robbery and intimidation of a witness and vacate her conviction for larceny.
16 BACKGROUND
17 {2} On March 6, 2010, the Smoke Shoppe in Silver City, New Mexico, was robbed
18 at gunpoint. The underlying facts of the robbery, which were captured on surveillance
19 cameras located both inside and outside the store, are largely undisputed. At the time
20 of the robbery, Jennifer Rael was the only employee working. While she was alone
2
1 in the store, a woman wearing dark, baggy clothing and a hooded jacket zipped up and
2 with the hood over her head walked up to the register, pointed a handgun at Rael’s
3 chest, and demanded that Rael give her all of the money in the store. Rael quickly
4 emptied the register and handed the money to the robber, looking up at the robber’s
5 uncovered face several times. The robber pulled the till out of the register to make
6 sure there was nothing underneath. Upon the robber’s demand, Rael then opened the
7 other register on the other side of the store and showed the robber it was empty.
8 Afterward, the robber told Rael not to call the cops or else she was going to come
9 back and kill her, then she left the store. Rael saw the robber drive away in a grayish
10 four-door car, and she then locked the drive-up windows and door and called 911. The
11 robber was in the Smoke Shoppe for less than thirty seconds. Approximately $600
12 was stolen.
13 {3} Defendant was arrested and charged with three crimes: (1) armed robbery,
14 contrary to NMSA 1978, § 30-16-2 (1973); (2) bribery or intimidation of a witness,
15 contrary to NMSA 1978, § 30-24-3(A)(3) (1997); and (3) larceny over $500, contrary
16 to NMSA 1978, § 30-16-1(D) (2006). At trial, the jury heard testimony and viewed
17 surveillance videos and photograph stills from the robbery. The jury was able to
18 compare photograph stills of what Defendant admitted was her car, which were taken
19 at the Smoke Shoppe several hours before the robbery, with photograph stills of the
20 car used during the robbery. The jury also viewed the photo array from which Rael
3
1 identified Defendant. In addition, Rael testified and made an in-court identification
2 of Defendant as the robber, to which defense counsel did not object. Defendant
3 presented evidence in her defense at trial that the case was based on mistaken identity
4 and that she had an alibi.
5 {4} The jury found Defendant guilty of all three counts with which she was
6 charged, with firearm enhancements added to each count. Defendant was convicted
7 and sentenced and now appeals. We include additional facts in this Opinion as
8 necessary in the context of our analysis.
9 DISCUSSION
10 Because the Procedure Used for the Out-of-Court Identification Was Not
11 Impermissibly Suggestive, the District Court Did Not Err in Denying Defendant’s
12 Motion to Suppress
13 {5} Defendant’s primary argument on appeal is that the district court erred in
14 denying her pretrial motion to suppress Rael’s out-of-court photographic
15 identification. She contends that the procedure used to render the identification was
16 impermissibly suggestive. Further, she argues that,viewing the facts in light of current
17 knowledge regarding the problems inherent in eyewitness identification, Rael’s
18 identification of Defendant lacked sufficient indicia of reliability. We start with the
19 relevant facts, then turn to the legal analysis of this issue.
20 {6} On the day of the robbery, Rael gave an oral statement to Detective Castillo at
21 the Silver City Police Department. During her statement, Rael estimated that the
4
1 robber was approximately 5'5", weighed about 130 pounds, and appeared to be
2 between the ages of twenty-five and thirty. She described the robber as a Hispanic
3 female with a light complexion, brown eyes, and a slender face, who appeared to be
4 wearing no makeup. Rael noted that the robber’s face appeared to have some scarring,
5 but she did not notice any tattoos on the robber’s face, which was the only uncovered
6 part of Defendant’s body during the robbery. Rael could not tell what color or style
7 of hair the robber had. Rael also told Detective Castillo that the robber’s demeanor
8 and looks were such that she deemed her to be “butch,” “boyish,” a “tom boy [sic],”
9 or “possibly a lesbian.” Detective Castillo did not develop a suspect based on Rael’s
10 statement. However, several hours after Rael gave her statement, Detective Castillo
11 received confidential information that Defendant fit the description of the robber and
12 owned a vehicle that fit the description of the vehicle the robber drove at the time of
13 the robbery.
14 {7} Detective Castillo subsequently requested that an agency called the High
15 Intensity Drug Trafficking Areas (HIDTA) generate a photo array. Detective Castillo
16 provided Defendant’s date of birth, social security number, possible driver’s license
17 number, and a brief physical description to HIDTA. Based on this information,
18 HIDTA generated a six-photo array that included a photograph of Defendant.
19 {8} Two days after the robbery, Detective Castillo called Rael into the station to
20 view the photo array. When Rael arrived at the police station, Detective Castillo
5
1 instructed her that he was going to show her six photographs, that she should look at
2 them carefully to see if she saw anyone there who looked like the robber, and that if
3 so, she should point out that person. Detective Castillo did not tell Rael that the array
4 contained a photograph of the suspected robber, and Rael did not get the impression
5 that the robber would necessarily be in the array. When she looked at the array, Rael
6 noticed that the bottom row of photographs seemed squished or slightly distorted and
7 pointed that out to Detective Castillo. However, Rael did not think the photographs
8 had been altered, just that the distortion was caused by “the way [the] printer prints
9 out things.”
10 {9} Rael identified Defendant as the person who robbed her. She estimated that it
11 took her several minutes to identify Defendant. Detective Castillo testified that it took
12 Rael less than a minute and that she did not waver before choosing Defendant.
13 {10} Defendant filed a pretrial motion to suppress Rael’s out-of-court identification
14 of Defendant, contending the photo array was impermissibly suggestive and that
15 Rael’s identification was not otherwise reliable. In the motion, Defendant pointed out
16 differences between Rael’s description of the robber and Defendant’s photograph in
17 the array, specifically that Rael said the suspect did not have any tattoos, but the array
18 shows Defendant has prominent tattoos on her neck. Defendant also asserted there
19 were differences between Defendant’s photograph and the other photographs in the
20 array; specifically that, although in the photo array Defendant was “clearly smiling”
6
1 and “sporting a boyish haircut,” four of the other females in the array had “an obvious
2 feminine hair style,” and were neither smiling nor distorted in the array. Defendant
3 also stated that the remaining person depicted in the array “apparently may not even
4 be a female,” and that “[h]e or she has no expression on the face.” However,
5 Defendant’s motion did not explain how these differences between the photographs
6 made the array impermissibly suggestive or how they made Rael’s identification of
7 Defendant otherwise unreliable.
8 {11} At the hearing on the motion, the district court viewed the surveillance videos
9 taken of the robbery and the photo array and heard testimony from Rael and Detective
10 Castillo. Rael’s description of Defendant was consistent with her initial statement,
11 except she described Defendant as one to two inches taller and ten pounds lighter.
12 When shown the photo array, Rael recognized it with the exception of one of the
13 photographs that she did not believe was in the array she viewed at the police station.
14 Rael also testified that she suffers from several medical conditions and was not taking
15 medications for these conditions at the time of the robbery, but that those conditions
16 do not affect her ability to perceive.
17 {12} At the conclusion of the hearing, the district court noted “[t]he important thing
18 is that there’s no question based on the surveillance video and the witness’s testimony
19 that [Rael] had an opportunity to observe the suspect.” The district court then entered
20 the following oral findings:
7
1 Ms. Rael testified to her version of the events which are consistent with
2 the surveillance camera. She was quickly robbed and her identification
3 was substantially that [the robber] was female, black pants, black hoodie,
4 black beanie, Hispanic, 5'6" to [5'7"], 120 pounds, age twenty-five to
5 thirty. [The photo array] appears to be pictures of six Hispanic females,
6 all relatively of the same age. Based on Ms. Rael’s testimony, if any . .
7 . suspect had tattoos, [Ms. Rael] was unable to see [them] because of the
8 hoodie, and she testified on the stand that she could only see [the robber]
9 from the chin up the way she was holding her hand underneath her chin.
10 So if we’re talking about the tattoo that appears in [Defendant’s
11 photograph], then there is no evidence before the court that this is
12 relevant, because there is no evidence that the witness could have seen
13 a tattoo on the throat of a suspect. This is a group of photographs, one of
14 the defendant. There is nothing to show that these people aren’t similar
15 in experience. I can’t tell from looking at any of these pictures whether
16 someone has a ponytail or not . . . all of their hair is pulled back. There
17 is only one picture in here that has a part. The other five . . . there’s no
18 part in their hair. And so the court finds that this group of photographs
19 is similar in appearance.
20 The district court concluded the array was not so impermissibly suggestive as to give
21 rise to a very substantial likelihood of irreparable misidentification and denied
22 Defendant’s motion.
23 {13} The standard of review we employ in reviewing a district court’s denial of the
24 motion to suppress is “whether the law was correctly applied to the facts, viewing
25 them in the manner most favorable to the prevailing party, and drawing all reasonable
26 inferences in support of the court’s decision.” State v. Salgado, 1999-NMSC-008,
27 ¶ 16, 126 N.M. 691, 974 P.2d 661 (alteration, internal quotation marks, and citation
28 omitted). Our Supreme Court has established a two-prong test for reviewing the
29 admissibility of an out-of-court photographic identification. First, we “determine
8
1 whether the procedure used was so impermissibly suggestive as to give rise to a very
2 substantial likelihood of irreparable misidentification.” State v. Jacobs, 2000-NMSC-
3 026, ¶ 30, 129 N.M. 448, 10 P.3d 127; State v. Stampley, 1999-NMSC-027, ¶ 14, 127
4 N.M. 426, 982 P.2d 477. Next, if we conclude the procedure used was impermissibly
5 suggestive, we determine whether, “under the totality of the circumstances, the
6 identification was still reliable.” Jacobs, 2000-NMSC-026, ¶ 30; Stampley, 1999-
7 NMSC-027, ¶ 14.
8 {14} In this case, the district court determined under the first prong of the test that
9 the array was not impermissibly suggestive. Defendant takes issue with the district
10 court’s decision based on both prongs of the test and additionally contends that we
11 should decide this case based on “what is now generally known and accepted” about
12 the problems with eyewitness identification.
13 {15} We start with the first prong: whether the district court erred in denying the
14 motion to suppress the out-of-court identification because the array was impermissibly
15 suggestive. In order to determine whether a photographic identification was
16 impermissibly suggestive, a court should consider: (1) the size of the array, (2) the
17 details of the photographs in the array, and (3) the manner of the array’s presentation
18 by the officers. Salgado, 1999-NMSC-008, ¶ 17. The size of the array “affects the
19 weight of any irregularities in the array.” Id. The fewer photographs there are in the
20 array, “the more closely the array must be scrutinized for suggestive irregularities.”
9
1 Id. (alteration, internal quotation marks, and citation omitted); see State v. Johnson,
2 2004-NMCA-058, ¶ 14, 135 N.M. 567, 92 P.3d 13 (noting that “[s]howup
3 identifications [consisting of a single defendant] are inherently suggestive, and their
4 use should be avoided” (internal quotation marks and citation omitted)).
5 {16} Defendant’s arguments below, as on appeal, focus primarily on the photo array
6 itself and not on the manner of presentation of the array. With regard to the size of the
7 array, Defendant contends that, although the array contained six photographs, the
8 “functional” size of array was no more than two photographs because only
9 Defendant’s photograph and one other photograph were “highly distorted.” Moreover,
10 Defendant asserts that, because Rael did not recognize the other distorted photograph
11 at the hearing on the motion to suppress, the functional size of the array was arguably
12 only one photograph, which she contends means that, absent exigent circumstances,
13 it was impermissibly suggestive. We disagree.
14 {17} In Salgado, our Supreme Court rejected a similar argument. There, the
15 defendant argued that an array consisting of six photographs was too small and, based
16 on expert testimony that only two of the photographs looked like the defendant,
17 asserted that this reduced the “total” size of the array to only two photographs. 1999-
18 NMSC-008, ¶ 17. Unpersuaded by the defendant’s argument, our Supreme Court
19 concluded that the district court correctly decided that the array was not impermissibly
20 suggestive because it had “noted that all six individuals in the photographs looked
10
1 very similar, that they all had the same coloring, hairstyles, and facial hair, and that
2 they appeared to be of the same ethnic status and age.” Id. ¶¶ 18, 23.
3 {18} With regard to the details of the photographs in the array in this case, Defendant
4 makes several arguments, all of which hinge on the assumption that the differences
5 between Defendant’s photograph and the other photographs in the array render the
6 array unduly suggestive. For instance, Defendant contends that, because Defendant
7 is the only person smiling broadly in her photograph and because her photograph is
8 one of the photographs that appears distorted, it stands out. Defendant also argues that
9 none of the other women depicted in the array physically resemble Defendant because
10 they are all “feminine” in appearance, wearing make-up, appear to have their hair
11 pulled back into ponytails or buns as opposed to sporting a “short ‘boyish’ haircut,”
12 and “none fit popular stereotypes of someone who appears ‘boyish,’ a ‘tomboy,’ or
13 ‘butch.’ ” Finally, Defendant argues that the characteristics that the district court
14 deemed irrelevant because Rael could not see them at the time of the robbery, such as
15 her neck tattoo, should also be considered in determining whether the array was
16 unduly suggestive because they make Defendant’s photograph stand out from the rest.
17 We are not persuaded.
18 {19} Our courts consistently have upheld the admission of out-of-court
19 identifications based on photo arrays similar to the one shown to Rael—namely,
20 where the photographs in the arrays depicted persons of the same ethnicity, are of a
11
1 relatively similar age, and have relatively similar facial characteristics and hair as the
2 defendant. For instance, in Stampley, our Supreme Court held that a photo array was
3 not impermissibly suggestive where all of the subjects in the array depicted a young,
4 African-American male with short hair and very little facial hair, the same age, race,
5 and stature as the defendant. 1999-NMSC-027, ¶ 17. In Stampley, the Court rejected
6 the argument that the array was impermissibly suggestive because the defendant was
7 the only person in the array with his head tilted back and who was wearing a t-shirt,
8 and he and only one other person in the array had a heavy or stocky build. Id. ¶ 15.
9 Our Supreme Court stated that nothing existed in the record to suggest that purported
10 differences in posture, clothing, and body build were impermissibly suggestive and
11 observed that “[a]ny array composed of different individuals must necessarily contain
12 certain differences.” Id. ¶ 17 (internal quotation marks and citation omitted).
13 Similarly, in State v. Clark, we concluded that an array containing nine photographs
14 was not impermissibly suggestive where all of the photographs depicted white males
15 about the same age and hirsuteness as defendant. 1986-NMCA-058, ¶ 42, 104 N.M.
16 434, 722 P.2d 685. We rejected the defendant’s argument that the photo array was
17 impermissibly suggestive because the defendant was “clearly older,” and the “only
18 one smiling” in the array, that two photographs were aligned horizontally, one
19 photograph was out of focus, and each subject had some distinguishing characteristic,
12
1 such as “a dimple,” “a mole,” “a menacing look,” or a subject who is “looking up with
2 his eyes.” Id. ¶¶ 41-42.
3 {20} Defendant also argues that, by providing information to HIDTA based on
4 Defendant rather than based on Rael’s description of the robber, HIDTA could not
5 have selected and did not select “foils” to fill out the photo array with photographs
6 that matched Rael’s description. However, Defendant cites no legal authority that an
7 array must be generated from a witness’s description as opposed to a general
8 description of the suspect, and we will not consider propositions that are unsupported
9 by citation to authority. See ITT Educ. Servs., Inc. v. Taxation & Revenue Dep’t,
10 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 P.2d 969. Finally, to the extent Defendant
11 argues that the photo array should have consisted solely of images containing “popular
12 stereotypes” based on the way Rael characterized Defendant’s sexual orientation, that
13 argument is also wholly unsupported by authority, and we do not countenance it. See
14 id.
15 {21} Giving deference to the district court’s factual findings, we see no basis to
16 deviate from the holdings in cases where our appellate courts have held that similar
17 photo arrays were not impermissibly suggestive. Here, the district court found that the
18 six-photograph array was composed of all Hispanic females, of relatively the same age
19 and similar experience, all of whom had their hair pulled back from their faces, and
20 that, as a whole, the group of photographs was similar in appearance. Moreover,
13
1 established case law makes clear that the characteristics that Defendant contends
2 makes her photograph stand out—such as her broad smile or the purported distortion
3 in her photograph—do not make a photo array impermissibly suggestive. Viewing the
4 facts in the manner most favorable to the State and drawing all reasonable inferences
5 in support of the district court’s decision, we conclude that the district court properly
6 determined that the array was not impermissibly suggestive. See Salgado, 1999-
7 NMSC-008, ¶ 16. We therefore uphold the district court’s decision denying
8 Defendant’s motion to suppress.
9 {22} We briefly address Defendant’s remaining arguments regarding the photo array.
10 First, although couched in different terms, Defendant appears to attack the manner of
11 presentation of the array for the first time on appeal. Specifically, Defendant asserts
12 that “[w]hen combined with the inherent suggestiveness of the photo array” itself,
13 various “system variables” tainted the procedure so much that admission of Rael’s
14 identification was plain or fundamental error. Defendant contends that: (1) because
15 Detective Castillo administered the photo array himself and knew Defendant was the
16 suspect, “he may have consciously or unconsciously communicated” that the
17 photograph of Defendant was the robber; (2) “[c]ontrary to well-established police
18 procedure,” Detective Castillo “did not caution” Rael that the suspect may or may not
19 be in the array, “nor debrief her formally afterwards on her level of confidence;” and
20 (3) Detective Castillo showed Rael the photographs “simultaneously rather than
14
1 sequentially.” Because Defendant makes no claim that this argument was preserved,
2 we review it only for fundamental error. See State v. Romero, 2013-NMCA-101, ¶ 19,
3 311 P.3d 1205, cert. denied, 2013-NMCERT-009, 311 P.3d 452. Defendant neither
4 provides authority for the assertion that any of these purported “system variables” are
5 objectionable nor does she articulate how they were “so egregious” or “unduly
6 coercive on the jury as to cause the jury to abandon its honest convictions.” See id. ¶
7 20 (alteration, internal quotation marks, and citation omitted). Thus, Defendant cannot
8 establish that fundamental error resulted.
9 {23} In addition, Defendant argues that the State failed to present clear and
10 convincing evidence that, under the totality of the circumstances, Rael’s identification
11 of Defendant was reliable despite the purported taint from suggestive police
12 procedures. This argument also fails. Under the two-prong test, we only need to
13 determine whether a witness’s description was reliable under the totality of the
14 circumstances if we first conclude that an out-of-court identification procedure was
15 impermissibly suggestive. See Stampley, 1999-NMSC-027, ¶ 14. Put differently, the
16 totality of the circumstances test broadens, rather than narrows, an appellate court’s
17 ability to affirm a district court’s admission of an out-of-court identification when
18 sufficient indicia of reliability exist, even when the out-of-court identification
19 procedure itself was impermissibly suggestive. See State v. Flores, 2010-NMSC-002,
20 ¶¶ 56-60, 147 N.M. 542, 226 P.3d 641 (concluding that, although out-of-court
15
1 identification procedure using only one photograph was impermissibly suggestive, the
2 totality of the circumstances strongly supported the district court’s findings that the
3 witness’s identification of the defendant was reliable).
4 {24} In any event, a review of the totality of the circumstances supports the
5 reliability of Rael’s eyewitness identification. To determine reliability, our courts
6 weigh “the corrupting effect of the suggestive identification,” Patterson v. LeMaster,
7 2001-NMSC-013, ¶ 20, 130 N.M. 179, 21 P.3d 1032 (internal quotation marks and
8 citation omitted), against: (1) “the opportunity of the witness to view the criminal at
9 the time of the crime,” (2) “the witness’s degree of attention at the time of the crime,”
10 (3) “the accuracy of the witness’s earlier descriptions of the criminal,” (4) “the
11 certainty of the witness about the identification,” and (5) “the time elapsed between
12 the crime and the identification confrontation.” Jacobs, 2000-NMSC-026, ¶ 30. Here,
13 all of the factors weigh in favor of reliability. First, as the district court found, Rael
14 had a sufficient opportunity to view the robber when she saw the robber’s
15 unobstructed face at close range during the robbery. See Stampley, 1999-NMSC-027,
16 ¶¶ 24-25 (concluding that the witnesses had a sufficient opportunity to view the
17 criminal when they saw his face through an open car window for two to thirty seconds
18 and noting that only a few seconds can be adequate to make a photographic
19 identification reliable). Second, nothing in the record rebuts that the robber had Rael’s
20 full attention when she was handing the money to the robber and, although Rael
16
1 suffers from various untreated conditions, she testified that neither those conditions
2 nor the fact that they are untreated has any effect on her ability to perceive. See id. ¶
3 26 (concluding that where witnesses were intoxicated at the time of the crime but
4 testified that the effect of drugs and alcohol did not detract from their degree of
5 attention, their identifications were not necessarily unreliable and this was a matter
6 best determined by the jury). Third, Rael’s description of the robber closely
7 approximated Defendant’s physical appearance. See id. ¶ 28 (noting that where the
8 witnesses’ descriptions were similar to each other and to the defendant’s physical
9 appearance, some minor discrepancies did not preclude the out-of-court identification
10 from going to the jury). Fourth, Rael never wavered in her identification from the time
11 she first picked Defendant out of the photo array. Finally, the two-day time lapse
12 between the robbery and Rael’s identification of Defendant is sufficient to support that
13 her identification was reliable. See id. ¶ 29 (noting that a one month lapse was not
14 unreasonable where witnesses had the opportunity to view the shooter and where their
15 attention was focused directly on the shooter).
16 {25} Defendant also contends we should view this case in light of currently accepted
17 knowledge about the problems with the reliability of eyewitness testimony. To this
18 end, Defendant makes various arguments that eyewitness testimony is inherently
19 unreliable based on what she describes as “divided attention,” “weapon focus,”
20 “disguise-effect,” “stress,” and “unconscious transference.” These arguments that are
17
1 peppered throughout Defendant’s brief are based wholly on out-of-state precedent, as
2 well as studies and law review articles regarding what Defendant deems to be current,
3 accepted knowledge about eyewitness identifications. However, we do not rely on this
4 authority because the issue is governed by New Mexico Supreme Court precedent. See
5 Aguilera v. Palm Harbor Homes, Inc., 2002-NMSC-029, ¶ 6, 132 N.M. 715, 54 P.3d
6 993 (stating that the Court of Appeals remains bound by Supreme Court precedent).
7 We further note that, to the extent Defendant’s argument is based on federal law,
8 Manson v. Brathwaite, 432 U.S. 98 (1977)—the leading United States Supreme Court
9 case on the admissibility of out-of-court photographic identifications—the Court
10 considered and rejected similar arguments based on studies about the reliability of
11 eyewitness testimony. Id. at 111-12.
12 The In-Court Identification Was Properly Admissible
13 {26} Defendant also claims that Rael’s in-court identification was unreliable because
14 it was derived from the same underlying circumstances as the out-of-court
15 photographic identification. In the alternative, Defendant argues that counsel’s failure
16 to object to the in-court identification at trial constitutes ineffective assistance of
17 counsel. However, because we have concluded that the pretrial identification
18 procedures were not unduly suggestive, “they could not taint any subsequent
19 identification.” Stampley, 1999-NMSC-027, ¶ 31. Moreover, “[a]n in-court
20 identification which is independent of, and not tainted by, the out-of-court
18
1 identification is admissible.”Jacobs, 2000-NMSC-026, ¶ 30. Because admission of the
2 in-court identification was proper, it did not result in fundamental error. State v.
3 Barber, 2004-NMSC-019, ¶ 8, 135 N.M. 621, 92 P.3d 633 (“The doctrine of
4 fundamental error applies only under exceptional circumstances and only to prevent
5 a miscarriage of justice.”). For the same reason, Defendant cannot show that she was
6 prejudiced by her counsel’s failure to object and therefore cannot establish a prima
7 facie case for ineffective assistance of counsel. See Patterson, 2001-NMSC-013, ¶ 18
8 (stating that to establish a prima facie case for ineffective assistance, “[a] defendant
9 convicted at trial must prove that trial counsel’s unreasonable performance calls into
10 doubt the reliability of the trial results” (internal quotation marks and citation
11 omitted)).
12 Defendant’s Convictions for Both Larceny and Robbery Constitute Double
13 Jeopardy
14 {27} As a final matter, we address Defendant’s contention that her convictions for
15 both robbery and larceny based on a single incident constitute double jeopardy. The
16 State concedes that, because this case involves a single taking from a single victim on
17 a single occasion and because larceny is a lesser-included offense of robbery,
18 Defendant’s conviction for larceny should be vacated. Although we are not bound by
19 the State’s concession, we agree. See State v. Garcia, 1990-NMCA-065, ¶ 17, 110
19
1 N.M. 419, 796 P.2d 1115 (noting that an appellate court is not bound by the
2 prosecution’s concession of an issue).
3 {28} Double jeopardy presents “a question of law, which we review de novo.” State
4 v. Montoya, 2013-NMSC-020, ¶ 22, 306 P.3d 426 (internal quotation marks and
5 citation omitted). Here, there is no dispute that the conduct underlying the crimes is
6 unitary. In addition, the only difference in the elements of the two crimes is that
7 robbery contains an additional element: use or threatened use of force. Compare § 30-
8 16-1(A) (“Larceny consists of the stealing of anything of value that belongs to
9 another.”), with § 30-16-2 (“Robbery consists of the theft of anything of value from
10 the person of another or from the immediate control of another, by use or threatened
11 use of force or violence.”). Because the elements of larceny are subsumed within the
12 elements of robbery, Defendant’s convictions for robbery and larceny violate double
13 jeopardy, and both convictions cannot stand. See State v. Swick, 2012-NMSC-018, ¶¶
14 24, 26-27, 279 P.3d 747 (noting that where elements of one crime are subsumed by
15 elements of another, convictions for both cannot stand for double jeopardy purposes).
16 Larceny carries the shorter sentence, and we therefore vacate that conviction. See
17 Montoya, 2013-NMSC-020, ¶ 55 (stating that when one conviction must be vacated
18 to avoid violation of double jeopardy protections, we must vacate the conviction
19 carrying the shorter sentence); compare § 30-16-1(D) (defining larceny above $500
20 as a fourth degree felony), and NMSA 1978, § 31-18-15(A)(10) (2007) (stating that
20
1 the basic sentence for a fourth degree felony is eighteen months imprisonment), with
2 § 30-16-2 (defining robbery as a third degree felony), and § 31-18-15(A)(9) (stating
3 that the basic sentence for a third degree felony is three years imprisonment).
4 CONCLUSION
5 {29} For the foregoing reasons, we affirm Defendant’s convictions for robbery and
6 bribery or intimidation of a witness and vacate Defendant’s conviction for larceny.
7 {30} IT IS SO ORDERED.
8 __________________________________
9 LINDA M. VANZI, Judge
10 WE CONCUR:
11 _________________________________
12 JAMES J. WECHSLER, Judge
13 _________________________________
14 CYNTHIA A. FRY, Judge
21