(specially concurring).
{69} I write separately to offer my own thoughts on the double jeopardy issue. I agree with the result, and the new analytical tack taken in the opinion with respect to determining whether a conviction under a lesser criminal statute (unlawful taking of a motor vehicle) is subsumed within a conviction under a broader, more generic statute (armed robbery). My difficulty is with how we deal with State v. McGruder, 1997-NMSC-023, ¶¶ 33, 39,123 N.M. 302, 940 P.2d 150, abrogated on other grounds by State v. Chavez, 2009-NMSC-035, ¶26, 146 N.M. 434, 211 P.3d 891, which I believe should be given a swift and decent burial.
{70} As the majority notes, the relevant inquiry for double jeopardy purposes is whether Child can be convicted for both (1) the unlawful taking of a motor vehicle and (2) armed robbery, after Child robbed Victim of his car ignition keys and then used those keys to take Victim’s car. We encountered a nearly identical situation fourteen years ago in McGruder.
{71} It is helpful to quickly run through McGruder’s relevant facts. After test driving a truck earlier in the day, McGruder returned to the truck owner’s apartment where he shot and killed the man who answered the door. Id. ¶4. McGruder then entered a bedroom where the owner and her two-year-old daughter were located. Id. ¶ 5. He pointed the gun at the owner and demanded keys to the truck. Id. The owner could not find the keys, so she searched from room-to-room as McGruder continued to threaten her with the gun. Id. The owner eventually came upon a pair of keys belonging to the man who had been shot and attempted to give them to McGruder. Id. However, he refused those keys and insisted that she retrieve keys to the truck. Id. After a few minutes had passed, the owner was able to locate the truck keys and handed them over. Id. McGruder then placed the gun on the owner’s temple and threatened to kill her. Id. The owner pleaded with him to spare her life because of her young child, who was standing behind the owner crying. Id. Following this exchange, McGruder began to walk out of the apartment, but returned and again held the gun to the owner’s head, warning her not to say anything about the incident. Id. ¶ 6. He then left the apartment, but on his way out, kicked the corpse of the man he had just shot and killed, calling him a “punk.” Id.
{72} As to whether convictions for the crimes of unlawful taking of a motor vehicle and armed robbery violated double jeopardy, McGruder, 1997-NMSC-023, ¶ 28, 123 N.M. 302, 940 P.2d 150 applied our traditional two-part, double-description test from Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). McGruder held the following: (1) Defendant’s conduct was not unitary, although the question was “close;” and (2) even if the conduct was unitary, under a strict application of the “same elements” test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), looking at the elements in the abstract, neither statute was subsumed within the other because unlawful taking of a motor vehicle requires proof of an element that armed robbery does not, namely, taking a motor vehicle. McGruder, 1997-NMSC-023, ¶¶ 30-39,123 N.M. 302, 940 P.2d 150. We also determined that the two statutes were intended to protect different interests — property and personal safety. Id. ¶ 37.
{73} While I agree with the majority that the two cases can be distinguished, I would go one step further and hold that McGruder erred in its double jeopardy analysis and should be overruled. First, I believe the conduct at issue in McGruder was in fact unitary. The two crimes were not sufficiently distinct in terms of “time and space,” despite the brief lapse in time that occurred between the search for the keys and McGruder’s subsequent removal of the vehicle. Admittedly, reasonable minds might view the time/space question differently. That said, I find the remainder of McGrudeFs unitary conduct analysis highly problematic. I do not believe we should have drawn an analytical distinction between the two crimes based on a finding that the armed robbery occurred when the keys were taken, while the unlawful taking of a motor vehicle occurred later, when McGruder drove away with the truck.
{74} In my mind, the only reasonable view of the facts in McGruder is that the object of the armed robbery was to acquire the truck, not the keys. Securing the ignition keys was no more than a necessary precondition to successfully entering and operating that truck. In this sense, the legal significance of the ear keys in McGruder was based on their unique relationship to the object those keys were capable of accessing. This position comports with property law, particularly the special status conferred to keys under the law of gifts. When manual delivery of a gift is impractical, a donor may perform a constructive or symbolic delivery by “giving the donee the ‘means of obtaining possession and control of the gifted property.’” Elizabeth Townsend Gard & Rachel Goda, The Fizzy Experiment: Second Life, Virtual Property and a 1L Property Course, 24 Santa Clara Computer & High Tech. L.J. 915, 936 (2007-2008) (quoting Herbert Hovenkamp & Sheldon F. Kurtz, Principles of Property Law 38 (6th ed. 2005)). Providing a key that grants access to the gifted property is the most widely recognized and oft-cited example of constructive or symbolic delivery. Id. Thus, the taking of keys by force to gain access to the truck subsumes the taking of the truck. Rationally, the two acts cannot be separated.
{75} Going beyond the unitary conduct analysis, I remain perplexed by McGrudePs application of BlockburgeP s “same elements” test. Under a straightforward application of Blockburger, we ask whether, in the abstract, each offense requires a legal element that the other does not. See State v. Frazier, 2007-NMSC-032, ¶¶ 14-15, 142 N.M. 120, 164 P.3d 1; Swafford, 112 N.M. at 10, 810 P.2d at 1230. If one statute does not include a distinct element, that statute is subsumed within the broader and more encompassing law. Frazier, 2007-NMSC-032, ¶ 15, 142 N.M. 120, 164 P.3d 1. Contrary to our holding in McGruder, I do not believe that the unlawful taking of a motor vehicle statute contains a legal element that is not also found in the armed robbery statute. Under my reading of the two laws, a motor vehicle is just one type of property that could be classified as something of value. Therefore, when one takes a motor vehicle, or almost any other piece of property, one also, by definition, takes something of value. As I see it, under a routine Blockburger analysis, the “taking a motor vehicle” element from the unlawful taking of a motor vehicle statute is subsumed within the more general element relating to “anything of value” in the armed robbery statute. Armed robbery simply adds the element of taking by force. That McGruder held otherwise was error.
{76} While we are rightfully concerned not to reverse existing precedent without first being presented with an express argument based on principles of stare decisis, State v. Riley, 2010-NMSC-005, ¶¶ 33-35, 147 N.M. 557, 226 P.3d 656, it does us no good to act tentatively in this instance. For all practical purposes, the majority opinion already overrules McGruder, although it does so implicitly. The majority opinion effectively reverses McGruder by applying a completely different (and much improved) version of the Block-burger test than we used to decide McGruder. In so doing, we reach exactly the opposite result that the McGruder court did, even though we are again analyzing the same statutes. For the benefit of the bench and bar, we should be clear that applying Pandelli v. United States, 635 F.2d 533 (6th Cir.1980) amounts to a rejection of our reasoning in McGruder.
{77} That being said, I wholeheartedly agree with the majority’s decision to directly incorporate Pandelli into our jurisprudence. The Pandelli rule has much to offer, particularly here, where a motor vehicle, or any piece of property for that matter, would normally be subsumed within the broader “anything of value” language under a strict application of Blockburger. It bears mentioning that Pandelli represents a significant shift away from our previous holdings, in which we have instructed lower courts to look at the legal elements in the abstract when determining whether one crime is subsumed within another.
{78} As we open the door to future use of Pandelli, we must also ensure that its use is properly circumscribed. Looking beyond the indictment and jury instructions to the specific facts of the case would portend retreating from Swafford and returning to the fact-based, ad hoc double jeopardy adjudications that characterized our pre-Swafford cases. See Swafford, 112 N.M. at 10-15, 810 P.2d at 1230-35 (explaining New Mexico’s double jeopardy law at the time Swafford was issued). While it makes sense to allow a party to look at the specific language used in the indictment along with the jury instructions to analyze the state’s “legal theory,” any factual inquiry beyond those two limited areas has not been sanctioned by this Court. But at the same time, something creative is happening whereby this Court, for the first time in twenty years, is rethinking some of the underpinnings of our double jeopardy jurisprudence. We encourage constructive critical thinking from counsel and from our colleagues on the Court of Appeals in terms of where this process should lead.
{79} Regarding the application of Pandelli to the instant case, I agree with the majority’s resolution, albeit with some hesitation. This ease is clearly much easier than McGruder. Here, the indictment, as controlled by the State through the drafting process, identified the specific items of value that Child was alleged to have taken during the armed robbery. Unlike McGruder, the armed robbery indictment specifically lists the car that forms the basis of the unlawful taking of a motor vehicle charge. Because the thing of value in this ease is the car, Child’s conviction for the unlawful taking of a motor vehicle is unquestionably subsumed within the broader armed robbery conviction. I am, however, concerned that we not create the impression that under Pandelli double jeopardy problems can be avoided by clever indictment drafting. A prosecutor should not be allowed to defeat the constitutional protections afforded by the double jeopardy clause by simply indicting for armed robbery based on the theft of ignition keys without ever mentioning the underlying vehicle.
{80} I would not leave open the question of what might have occurred had the armed robbery indictment referred to ignition keys alone, as was the ease in McGruder. When applying Pandelli, we should not lose track of what a key symbolizes, which is the underlying property. For this reason, I find no distinction in terms of “legal theory” between car ignition keys and the vehicle to which those keys belong. When the victim of a robbery unwillingly gives up his or her car keys under threat of force, that victim has transferred possession of both keys and vehicle, much like a donor who delivers a gift by way of a key. This view finds support among property law teachings while also embracing a common sense approach to the law.
{81} While I concur in Justice Chavez’s well reasoned and original approach to double jeopardy, I remain troubled by the notion in McGruder that unlawfully taking a vehicle can be considered a separately punishable crime from forcibly stealing a set of ignition keys to start and drive away in that same vehicle. McGruder was wrong in 1997, is wrong now, and should be corrected for the future.