(specially concurring).
I concur in the result. I do not concur in the discussion of merger, because I fear that in our pursuit of a fact-based analysis of merger in each specific case, we have lost sight of our moorings.
Our task is no more than inferring legislative intent. If the legislature has authorized cumulative punishment, our inquiry is at an end. See Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).
Somehow, our recent decisions have implicitly adopted a conclusive presumption that the legislature would not want to permit cumulative punishment if, under the facts of the case, one act violated two different criminal statutes. We have adopted the presumption without articulating any justification for it. In particular, we have failed to explain why we should reject the Blockburger presumption that has guided the United States Supreme Court over the years. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
In Blockburger a sale of one package of illicit drugs violated two statutes. One prohibited the sale of the drug except in or from the original stamped package; the other prohibited the sale of the drug not in pursuance of a written order from the purchaser. The Court upheld consecutive sentences for the two violations. The Court wrote:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
Id. at 304, 52 S.Ct. at 182. In other words, if each statutory offense requires proof of an element that the other does not, cumulative punishment is permissible.
Blockburger was reaffirmed in Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). Then, in Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) the Court upheld convictions for both conspiracy to import marijuana and conspiracy to distribute marijuana, even assuming there was but one isolated conspiratorial agreement with dual objectives (importation and distribution).
In neither Blockburger nor Albemaz did the Supreme Court concern itself with the specifics of the case. The analysis was based solely on the statutory provisions. That approach was modified somewhat in Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). The defendant in that case had been convicted of both rape and felony murder. The felony-murder statute sets forth several alternative means of committing the crime. The one charged in the indictment against the defendant was murder in the course of commission of a rape. The Supreme Court, pointing out that the alternative means of committing felony murder could have been set forth in separate statutes, stated that it was appropriate to look at the indictment to determine which of the alternative means of committing felony murder was charged against the defendant. (The Court explicitly noted that it was not looking at the facts alleged in the indictment. Id. at 694 n. 8, 100 S.Ct. at 1439 n. 8). The Court then observed that all of the elements of rape were included in the offense of killing in the course of a rape, and held that cumulative punishment was improper. (Interestingly our supreme court reached the opposite result in State v. Stephens, 93 N.M. 458, 601 P.2d 428 (1979). See State v. McGuire, 110 N.M. 304, 795 P.2d 996 (1990) (permitting cumulative punishment for compound offense and the predicate offense); State v. Tsethlikai, 109 N.M. 371, 785 P.2d 282 (Ct.App.1989) (same).)
The rationale of the Blockburger test is that the existence in each statute of an element not required in the other manifests a legislative “intention to serve two different interests in enacting the two statutes.” Whalen v. United States, 445 U.S. at 714, 100 S.Ct. at 1449 (Rehnquist, J., dissenting). See State v. McGuire (considering whether two criminal statutes address different social norms); State v. Tsethlikai (same); People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984) (same).
It seems to me that once an examination of the elements of two statutory offenses shows that the statutes were intended to serve two different interests — that is, to penalize two distinct evils — our inquiry should end. There should be no further need to examine the facts of the case. Moreover, we should be careful not to characterize too broadly the “interest” served by a statute. Albemaz permitted cumulative punishment for conspiracy to import marijuana and conspiracy to distribute marijuana. The distinct interests served by the two statutes are prohibition against importation of marijuana and prohibition against distribution of marijuana. See id., 450 U.S. at 343, 101 S.Ct. at 1144. It would be inappropriate to characterize both statutes as having as the single interest the protection of the public from marijuana.
If decisions of the New Mexico Supreme Court compelled us to adopt a test different from that of the United States Supreme Court, I would not concern myself with the Blockburger line of cases. As the citations in the majority’s opinion show, however, the New Mexico cases adopting a fact-based analysis of merger questions are cases from this court. Our supreme court has not directly confronted the propriety of the fact-based approach to merger. Cf. State v. Martinez, 77 N.M. 745, 427 P.2d 260 (1967) (apparently adopting Blockburger test); State v. McGuire, 110 N.M. at 308, 795 P.2d at 1000 (“when the facts used to establish the elements of each offense are identical, imposition of multiple punishment for violation of the kidnapping and criminal sexual penetration statutes is problematic under existing case law [citing cases from this court]”; emphasis added). One should be cautious about incorporating doctrine from related, but different, areas of the law. State v. Tsethlikai, 109 N.M. at 373, 785 P.2d at 284. For example, State v. DeMary, 99 N.M. 177, 655 P.2d 1021 (1982) was not a merger case; it concerned the propriety of a lesser-included-offense instruction, which in the context of that case raised questions of notice more than punishment. Similarly, decisions regarding the propriety of successive prosecutions apply principles distinct from those governing merger of offenses. See Grady v. Corbin, — U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
Turning to this case, the interests served by the false-imprisonment and assault statutes are not the same. The former protects freedom of movement. The latter protects against threats of physical harm. A fact-based inquiry may be necessary when there are multiple charges of assault and battery, cf. State v. DeMary (considering appropriateness of lesser-included-offense instruction for aggravated assault when defendant charged with aggravated battery), but that is not the situation here. I think it appropriate to presume that when a false imprisonment is accomplished through an assault, the legislature would approve cumulative punishment under the two statutes because they serve distinct interests. Cf. State v. McGuire (statutes address different social norms); State v. Tsethlikai (same). Certainly the jurisprudence of the United States Supreme Court supports such a presumption.
I realize that this approach would change New Mexico law. But that law has been created by this court, not our supreme court. We should not perpetuate our own error. For example, the result in State v. Jacobs, 102 N.M. 801, 701 P.2d 400 (Ct.App. 1985) (vacating sentence for dangerous use of explosives because conviction of aggravated burglary was established upon almost identical facts) is an aberration and the decision should be overruled.