State v. Campos

Mexico, of New STATE

Plaintiff-Appellee, CAMPOS, Defendant-Appellant.

Tony

No. of New Mexico.

Supreme Court

May July

Rehearing Denied (CSP) firstdegree penetration

nal sexual felony murder. He raises three contentions appeal: that intoxication should serve murder; that he defense right to con- was demed his constitutional witnesses; that Ms one of the and front sentencing for first-de- conviction and both first-degree felony murder gree and CSP protections agamst violated constitutional jeopardy. affirm on the first two double We third, issues, on the and remand. reverse

I. FACTS Campos and Ms friend Victor Gutier- drinking began beer on the afternoon of rez learning- 1992. Gutierrez was June 24-year-old, generally who was sub- disabled Campos’s aggressive person- missive to more ality. evening of June the two On the to the home of Lisa Salcido and her went Baca, wMskey boyfriend, and drank Berme during point At one the late as well beer. drive, Gutierrez, evening, could not who home, him Campos asked to take but Cam- him contmue pos refused and ordered to drinking. evening, During the course of the began engagmg in

Campos and Gutierrez horseplay with sexual overtones. Sometime outside, and after 2:00 a.m. the two men went They Campos clothing. off took Gutierrez’s began reentered the house and Gutierrez acting dog; like a someone commented needed a tail. Salcido and Baca Gutierrez bed, nephew leaving Salcido’s went Campos sleep living in the room. and Gu- Defender, Ellington, T. CMef Public Glenn outside. wanted tierrez went back Gutierrez Bulman, Appellate De- Christopher Assistant began walking naked down go home and fender, Hogan, Appellate Amme M. Assistant down, Campos the street. He fell and Defender, Fe, Appellant. Santa for helped up, brought him him back to the front yard, ground. him the and laid Udall, General, Attorney Jacob- Tom Joel General, Fe, sen, Attorney Assistant Santa Campos then went to the front door of Appellee. nephew and asked Salcido’s Salcido’s house nephew a broom. refused When one, get Campos walked around the house to OPINION porch got mop. He returned the back and FROST, Justice. Chief down, yard, held to the front Gutierrez Campos began thrusting mop mto Gutierrez’s 1.Defendant-Appellant Tony anus, Campos thrust first-degree handle first. twice appeals crimi- Ms convictions mop paramedics 7. A short time after the took length of the handle nearly the entire hospital, several officers used such force on Gutierrez to the anus. He into Gutierrez’s permission to path first asked Salcido’s enter thrusts that on its these two intestine, house, They and she let them in. found his liv- mop penetrated Gutierrez’s couch, Campos asleep on the arrested him on er, pericardial sac of diaphragm, his warrant, outstanding him penetrated his an and took into The second thrust his heart. custody. injured lung, After a bench trial the court found his and ended diaphragm, Campos Campos guilty and first- his shoulder. CSP bulging the skin near degree felony appeals mop after this second now not withdraw the did jurisdiction his convictions. We note over forcible insertion. appeal pursuant 12- SCRA house, Salcido, inside the who was still 102(A)(2)(Repl.Pamp.1992). no, moaning, saying cry- and heard Gutierrez Campos ing pain. in She then heard out II. COLLATERAL-FELONY everyone yelling for to “come

laughing and REQUIREMENT window, out the look at this.” Baca looked done, ran next Campos had and saw what argues felony- Campos first Campos police. to call the When saw door ap- not murder doctrine should have been coming, got he a water police that the were plied his case. He contends that Gutierrez, began spraying telling hose and underlying felony CSP was get get him to Gutierrez did not up. When killing independent of or collateral to the up, Campos ran to the front door and de- predicate cannot and therefore serve as inside, manded to be let inside. Once he felony felony relies on asleep a couch. pretended to be v. Harrison in which this Court first collateral-felony police ar- doctrine for 6. When officer Mike Mealand discussed Harrison, rived, felony 90 N.M. lying in the front murder.1 State he found Gutierrez (1977) (review- 1321, 439, 442, bulge P.2d 1324 yard. Mealand noticed a at Officer ing felony-murder conviction on false and then saw the based Gutierrez’s left shoulder homicide). by imprisonment We mop protruding from his anus. Officer Mea- followed Gutierrez, jurisdictions noted in Harrison that various land to rouse but Gutierrez tried felony-murder placed limitations on the only responded with a moan. officer have The “(1) doctrine, following: there personnel including the called for medical and back- then scene, relationship at the and must be a causal between up. Another officer arrived (2) homicide, felony felony must to the front door of the and the he and Mealand went collateral to the homi- spoke independent told be or house and Salcido. Salcido (3) cide, inherently felony and stated must be them she not know Gutierrez did foreseeably dangerous to human life.” Id. two children were she her Pierce, added); also, (emphasis see State v. paramedics The then ar- inside her house. (1990) 352, 109 N.M. 788 P.2d They determined that Gutierrez was rived. limitations (reaffirming applicability of these incoherent. He later died still awake but Mexico). However, by Harrison did not injuries inflicted Cam- New from the internal application of the collateral-felo- pos. address greater upon collateral-felony convic- common- subsumed into the offense doctrine is more The latter, merger ly referring, because the referred to as the doctrine somewhat inaccu- tion for the See, predicate and the are said to e.g., homicide rately, double-jeopardy concepts. See, Hansen, 300, merge. e.g.,People v. 9 Cal.4th Meadors, 38, 10, P.2d 121 N.M. 49 n. 1022, (1994) Cal.Rptr.2d 885 P.2d regard- confusion 742 n. (in bank) ("The [merger] name of the doctrine merger); ing 12- Swafford derived from the characterization of the assault (discussing 1232-33 resulting 'merged' as an offense that expres- merger). Accordingly, we shall use the However, homicide.”). “merger” has term "collateral-felony to avoid confu- sion doctrine” well, other contexts as such as been used in sion. referring offense which is to a lesser-included felony-murder rule of the Harrison, utilization [T]he at ny doctrine. 441— opera- extends the (discussing circumstances] causation and in [such “beyond any But see func- requirements). rule rational dangerous tion of that Pierce, 788 P.2d at 357 allow designed to serve.” To tion that preceded and was inde- (noting kidnapping felony-murder rule would such use of the killing). subsequent pendent of the effectively preclude the from consid- aforethought ering of malice the issue orig collateral-felony requirement has been com- all cases wherein homicide the broad response to concern over inated of a felonious assault —a mitted as result felony-murder doc ening application majority great category includes the felony-murder first doctrine trine. When bootstrap- all homicides. -This kind pun England, all were developed in felonies logic nor support finds neither ping Harrison, 90 N.M. at ishable death. See law. history (discussing 564 P.2d at 1323 doctrine). Therefore, it made little dif Ireland, 522, Cal.Rptr. People 70 Cal.2d perpetrator if the were executed ference (1969) (in bank) (cita- felony. predicate felony murder or for the omitted) Washington, (quoting People v. tion However, legislatures to a shifted Cal.Rptr. 62 Cal.2d differing graduated system punishment (1965)). Consequently, courts estab- felonies, felony-murder took on the doctrine felony predicate that the lished the limitation felony-murder greater significance. The independent to or of the had to be collateral prosecutors of the served to relieve doctrine Harrison, 441, 564 homicide. 90 having prove malice afore burden P.2d at 1323. killed someone thought when the defendant commonly felony. committing a while Approaches Different A. Jurisdictions felony-murder rule was purpose stated of the underlying felony, but in not to deter jurisdictions devel- various have 11.The killings negligent accidental stead to deter determining differing oped standards committing may course of occur felony collateral or predicate whether Smith, 798, felony. People 35 Cal.3d 201 v. Robinson, independent. generally 1 su- See (1984) (in 311, 886, Cal.Rptr. 678 P.2d 891 103(b) approaches). (noting § different pra, Lucas, 462, bank); Kan. 759 P.2d v. 243 State Kansas, jurisdictions, have fo- such Some 193, (1988), 90, reh’g, 244 Kan. 767 on 93 aff'd caused solely on whether the act that cused (1989). P.2d 1308 underlying same as the the homicide was the See, Prouse, e.g., v. conduct. State felonious However, majority of homi- the vast (1989). 1308, 1313 244 Kan. predicated an initial felonious cides are explained: Supreme Court The Kansas battery kind. For exam- assault or of some shooting involving a could be ple, a homicide “Time, distance, the causal relation- second-degree murder or as either classified underlying felony ship between felony on an assault with a murder based killing factors to be considered de- are Thus, that in deadly weapon. courts realized killing part is a termining whether the cases, felony-murder application of the such and, therefore, subject felony doctrine would allow conviction felony-murder rule.” prosecu- murder without the defendant for must, therefore, felony be The collateral having prove of malice. tion the existence the lethal act conduct other than felonious This, turn, the mens-rea would eliminate Thus, occurring during a homicide itself. in most homicide requirement for murder felony, independent of an the commission legislative grada- and circumvent the cases robbery, rape, or kid- aggravated such as 1 Paul system tion for classes of homicides. felony-murder napping, comes under Robinson, Law H. Criminal Defenses However, act itself can- 103(b) (1984). the lethal statute. Supreme § As the California independent collateral fel- not serve as the explained: Court

153 support felony-murder felony shooting ony necessary murder when the killed an occupant). conviction. (citation omitted) Lucas, (quoting 759 yet 14. Arizona has ap- followed another language)); (syllabus

P.2d at see also 90 proach. felony-murder Arizona’s statute (Tex. v. S.W.2d 545 Garrett specifically enumerates certain felonies for that, Crim.App.1978) felony-mur resulting which a will homicide be deemed apply, there must der doctrine to be feloni Miniefield, murder. See v. causing (1974) (en than the act ous conduct other 110 Ariz. death). banc). Accordingly, applying felony- doctrine, Arizona only courts jurisdictions focus on the de Other look predicate felony to see if the is enumer- underlying committing fendant’s purpose statute, regardless ated of whether the See, predicate felony. e.g., People underlying unitary act was or if there was Mattison, Cal.Rptr. 4 Cal.3d single purpose. Id. (holding that ar- (in bank); People resulting felony son in death constituted (1927). Moran, N.E. N.Y. though murder even the same act was the Mattison, Supreme California felony basis for predicate both the and the held that the same act could serve as the homicide, though and even the defendant’s predicate basis for both the homicide and the design was to use of arson the act to commit predicate long so as the homicide). felony-mur- The New Mexico independent committed with a collateral statute, however, der does not enumerate Mattison, design. Cal.Rptr. felonious possible predicate felonies. NMSA (quoting People Taylor, 30-2-l(A)(2) (Repl.Pamp.1994). Cal.Rptr. Cal.App.3d hearing (Oct. 1970)). denied, ap Under Proper Approach B. The For New Mexico proach, burglary if a defendant committed assaulting occupant with the intent of the urges us follow the Kansas actually occupant, the home and killed the approach collateral-felony and hold that the felony burglary the could' not serve as a requirement that underlying mandates the predicate felony felony for murder because it temporally spatially felonious act must be design was not committed with felonious Campos points distinct from the lethal act. the was collateral to homicide. Howev that, case, out in the act of criminal er, opposite the conclusion would be true if penetration mop very sexual with a was the burglary the were committed with the intent same act that caused death. He Gutierrez’s robbing occupant the but resulted in a argues therefore that the CSP cannot serve Taylor, Cal.Rptr. homicide. at 701-02 Cf. predicate felony applying as for the the felo- (discussing felony burglary). murder and However, ny-murder doctrine. we decline to follow or the other approach the Kansas two Hansen, However, People the approaches discussed above. recently departed Supreme California test, felonious-design from this collateral fo 16. New a distinct version of Mexico has cusing allowing par instead on the whether doctrine, felony-murder the which calls for a felony predicate felony as a ticular to serve collateral-felony different formulation of the felony-murder applying for the doctrine requirement. primary distinction be legislative would regarding subvert felony-murder tween New Mexico’s doctrine requirements that, the mens-rea jurisdictions and those other Hansen, People statutes. 9 Cal.4th Ortega, 817 P.2d 1196, 1205 (1991), Cal.Rptr imposed .2d 885 P.2d this Court a mens (1994) (in bank) (concluding felony requirement felony rea for murder. Com pare at discharge Ortega, willful of a firearm at inhabited predicate felony (requiring showing of mens for house could rea see- serve as ond-degree murder the murder to murder “when it in circumstances that to elevate occurs murder) felony Miniefield, legislature has first-degree with the determined are so serious (“The punishment.” merit increased legislature at 28 has deemed as to We 522 P.2d in Harrison circum- perpetration of noted that these serious ... murder committed the include the a first- stances commission of felonies and commit certain other so heinous felony degree lesser-degree felony or a disregard for human ted with such wanton inherently dangerous or is committed is itself prove is no the ele life that there need to inherently circumstances dan- under that are usually necessary for a conviction for ments Harrison, gerous. at murder.”) Mattison, degree first at 1324. respect to second- P.2d at 198 murder, purpose of the “The

felony-murder Therefore, killing rule deter felons from is to because negligently accidentally by holding killing already mur must constitute strictly responsible killings they felony-murder apply, them der for the doctrine to omitted)) (quotations applying felony- main concern in commit.” and State (Or. Branch, 244 Or. murder doctrine New Mexico is that the 1966) (en banc) (“The may felony- prosecution improper be purpose of the able elevate majority ly vast mur murder rule is the State of the relieve by charging ders murders proving premeditation or malice burden underlying predicate assaultive act felo by caused whenever victim’s death is felony-murder ny for the doctrine. Conse committing killer while the killer is another quently, appropriate imposed limitation felony.”). collateral-felony doctrine in New Mex simply that the cannot predicate ico is explained Ortega that the We a lesser-included offense of be felony-murder does doctrine New Mexico 103(b), Robinson, supra, murder. See at requirement not abandon mens rea (“An approach collateral-felony [to presumption nor does it create more with modern of doctrine] consistent that a defendant had to kill whenev intended might merge fense definitions all felo be during a homicide occurs course of a er nies that are lesser included offenses of the felony. Ortega, 112 statute.”); [second-degree] cf. felony-murder 1205. Our serves to rule Essman, 228, 540, Ariz. 403 P.2d second-degree first-degree raise murder to (1965) (en banc) (“The felony-murder doc murder when the is committed the apply trine does not where the is an dangerous felony. course of homicide.”). charge offense included the Accordingly, jurisdic- unlike other tions, felony-mur- New Mexico’s modernized C. What is a Offense Lesser-included der doctrine does not run risk of circum- the Collateral-Felony Under the Rule venting legislatively the determined mens Furthermore, purpose rea for the Having predicate determined that the felony-murder explained of the rule as felony cannot be a lesser-included offense negligent Kansas California —to deter second-degree we are still left killings may occur in the accidental question of what a lesser- constitutes committing inapposite course of purposes applying included offense for —is Mexico, negligent or acci- See, New because a collateral-felony e.g., rule. v. Mea State killing dors, would not constitute second- 41-42, dental P.2d 734- degree murder and not im- would therefore approaches to different Rather, felony-murder plicate the doctrine. question of what constitutes lesser-included offense); explained purpose this Court that the 10 Swafford (same). felony-murder rule in is to ele- New Mexico 1230-1233 first-degree explained vate that New Mexico Meadors approaches (1982)). follows two distinct analyzing The one DeMary designed whether crime constitutes a lesser-in safeguard test is Meadors, cluded offense of right another. 121 defendant’s constitutional to notice of 41-44, against 908 P.2d at 734-37. The first crimes which he or she must test, approach DeMary defend. requires is the striet-elements which The test only generally applies in those crimes for jeopardy the double con which the elements are suf- ficiently document, text. described in charging We noted: and for supporting evidence is adduced test], [the Under striet-elements a court trial, presented are to the as lesser- would find an offense be a lesser-includ- included offenses. Id. at 908 P.2d at 737.2 ed offense of if statutory another elements of the lesser offense are a sub-set test, 22. The striet-elements rath statutory of the greater elements of the test, DeMary er than the applicable is offense such impossible that it would be collateral-felony rule. explained As we greater ever to commit the offense without above, purpose collateral-felony committing also the lesser offense. felony-murder limitation to the doctrine is to legislative further the Meadors, holding intent of cer 121 N.M. at tain 735; murders to be more cul Swafford, see also 112 N.M. at pable during when effected the commission P.2d at (setting out strict-elements felony thereby elevating them to first- test in double-jeopardy analysis (quoting — maintaining murders —while the im States, Blockburger v. United 284 U.S. portant distinction between the classes of 180, 182, (1932))); 52 S.Ct. 76 L.Ed. 306 second- and murders. Accord Garcia, ingly, because pro the striet-elements' test (1992) (“A 862, 866 lesser included offense is inferring legislative vides a tool for some, all, one that includes but not of the regarding application of the criminal stat greater elements of a offense does utes, we appropriate conclude it is the meth any not have element not included evaluating od for underlying whether the fel offense, greater so that impossible ony constitutes a lesser-included offense of greater commit the offense without necessar purposes murder for offense.”). ily committing the lesser collateral-felony doctrine.3 explained pro that this test Swafford inferring vides a tool for “legis whether the Furthermore, in those situa lature intended to separate applica authorize tions which there is more than one statuto tion Swafford, of each [criminal] statute.” ry requisite dangerous definition of the felo 112 N.M. at 810 P.2d at 1229. ny, question may regarding arise which of 21. The second lesser-included of statutory the alternative appli definitions is which, test, DeMary fense test is the appli purposes cable collateral-felony analy prosecutor cable when a requests that question sis. This in a arose different con court instruct the on a explic Meadors, crime not 49-52, text 121 N.M. at 908 P.2d itly charging set out 742-45, instrument. at Rodriguez, and also State v. Meadors, 42-43, 908 P.2d at N.M. (Ct.App.), 833 P.2d 244 cert. de nied, (applying (1992). 735-36 DeMary, 99 N.M. 830 P.2d 553 In considerations, parity Contreras, appli- felony 2. For this test is also murder. See State v. requests 486, 490-92, cable when the (1995) (dis- defendant a lesser-in- 903 P.2d 232-34 Meadors, cluded offense instruction. murder). cussing jeopardy felony double and at 908 P.2d at 739-40. addition, examining we are whether de- not may punished separately felony fendant be analysis, although 3. We note that this similar to a predicate felony; and for the rather we double-jeopardy analysis, differs from a double- determining felony-murder are if the doctrine jeopardy analysis looking in that we are to applies at all. predicate felony whether the is a lesser-included second-degree first-degree offense of murder not upon situation, acting he sufficient inquiry is wheth B. Unless is such correct quarrel degree provocation, upon it to second or in possible er is commit a sudden committing passion, person some of the kills murder without heat of who form dangerous felony. example, impos justifi- For is being human another without lawful degree murder with sible to commit second in the cation or excuse commits murder committing aggravat out some form of both degree performing if in the acts second Thus, battery. aggravated ed assault and which cause the death he knows that such always would be both of those offenses strong probability of death or acts create though, even un deemed to be non-collateral great bodily harm to that or individual definitions, statutory aggravated der some another. battery aggravated assault include one and Applying the strict-elements test statutory are elements that not ele more statutes, two we conclude that first- these degree murder. note ments of second We degree not is a lesser-included offense CSP approach ap is from distinct second-degree statutory of ele proach respect to the taken with double- first-degree are ments of CSP not a sub-set jeopardy analysis in Meadors Rod used statutory elements riguez, in which the courts held that it was require murder but instead contain distinct necessary particu to refer to facts of the ments, certainly possible and it is commit statutory lar case order ascertain necessarily committing murder without first- purposes elements of the offense for of dou Meadors, degree at CSP. See N.M. analysis. jeopardy ble (applying 908 P.2d at 735 strict-elements test; Garcia, us, at Turning N.M. to the case before (same)). predicate Campos’s requires engaging CSP in one that elevated charge first-degree specified pen murder was of the acts or some form of statute, 1978, § genital CSP. The CSP NMSA 30- openings etration of the or anal (Repl.Pamp.1994), provides another, 30-9-ll(A), relevant § which are not ele part: § 30-2- ments 1(B). Similarly, penetration sexual A. Criminal is the requires statute the defendant know causing per- unlawful and intentional of a strong probabili that his or her acts create a intercourse, engage son to sexual cunni- ty great harm, bodily § of death or 30-2- lingus, fellatio anal intercourse or the 1(B), the CSP statute does not con whereas any causing penetration, extent and respect tain similar with to the mens rea any object, genital or anal great bodily great result of harm or mental another, openings whether or there victim, 30-9-11(0(2). anguish Cf. any emission. Pierce, 76, 80-81, penetration B. Criminal sexual does 408, 412-13 distinguish CSP medically procedures. not include indicated homicide). battery able offense from Accordingly, penetration

C. Criminal sexual in the conclude pen- predicate felony first properly consists of all sexual CSP served as perpetrated: applying felony-murder etration doctrine. years on a child under thirteen age; or III. INTOXICATION DEFENSE (2) by the use of force or coercion that Campos argues next the trial that great bodily great harm or results recognize that court erred when it failed anguish victim. mental to the voluntary intoxication can serve as a defense support, Campos statute, felony murder. For second-degree Our NMSA 30-2-KB) findings points judge’s trial and (Repl.Pamp.1994), pro- of fact rendering part: judgment. of law in vides in relevant conclusions judge Felony-Murder The trial noted he had a reason- B. Mens Rea able doubt as to whether knew his above, explained As noted strong probability acts created a of death Ortega that in felony order for the intoxication, Campos’s voluntary because of apply defendant, doctrine to to a the State judge that, but the concluded intoxi- because prove must that the defendant acted with the second-degree cation is not a defense mur- mens rea for at least second-degree murder. der, Campos guilty first-degree felony was Ortega, 817 P.2d at 1205 murder. (“[T]here proof must be that the defendant (or intended to kill knowingly was heedless Findings A.The Trial Court’s might conduct).”); that death result from his Griffin, see also State v. 27. At the outset we note that we are (“The felony mur confronted a somewhat unusual situa der requirement [mens rea] is satisfied if respect findings stemming tion with to these proof there is that the defendant intended to from the fact that this case was tried as a kill, knew that his strong actions created a jury bench trial rather than trial. In a probability great bodily death or harm trial, judge gatekeep functions as a ..., person the victim or er, another filtering acted in actually presented the evidence greatly dangerous manner to the factfinder to to the lives of ensure that the factfin others.”). words, In der’s other improper conclusions are not based on the mens rea See, necessary e.g., support considerations or evidence. United conviction for another Talbott, (7th type States v. generally 78 F.3d of murder support would also Cir.1996) (noting judge gatekeeper felony-murder serves as Griffin, conviction. for affirmative 695, 866 defenses defendant wishes to N.M. at P.2d at 1162. jury); O’Key, submit to the 321 Or. require- As result of this mens-rea (1995) (en banc) 677-78 ment, felony-murder our rule is best de- (discussing judge gatekeeper role of elevating scribed as the crime of second- evidence). context of admission of scientific murder to murder when trial, however, In a bench judge put the murder is during committed the course position acting gatekeeper as both dangerous felony. Ortega, of a 112 N.M. at Consequently, during factfinder. a bench Therefore, 817 P.2d at 1205. Campos’s judge trial the is often confronted with evi contention that intoxication is a defense to argument dence and that he or she must felony murder inis essence a contention that subsequently disregard ignore as factfin intoxication is a defense to rendering der when a decision. reject murder. We this contention. case, judge the trial unfortu-

nately blurred his dual role as factfinder and Second-Degree C. Murder and Intoxi- gatekeeper drafting findings his of fact cation initially gave conclusions of law. He credence to the intoxication evidence and consistently 31. This Court has held that applied it to an evaluation of the mens rea intoxication is not a defense to murder. He then determined Tapia, murder. See State v. that, law, gatekeeper his role as under the (1970) (citing such evidence should not be considered cases). earlier The rationale for this conclu- the factfinder. He therefore concluded that always voluntary sion has been intoxi- guilty the defendant specific-intent cation is a defense to Accordingly, question presented on this crimes, whereas murder is a appeal dispute, not a factual but rather is general-intent crime. Id. judge whether the trial erred as a matter of law when he originated concluded intoxi- 32. This intoxication doctrine cation felony-murder. was not a defense to under an earlier version of our murder stat- second-degree simply state murder was applicable mens rea for that the

ute which held general required intent for all the criminal aforethought. See murder malice was (“Mur lacking legislatively 1978, crimes a established (Orig.Pamp.) § 30-2-1 NMSA However, amendment, the mens after rea. killing of human one der is unlawful legislature necessary intent for specified aforethought, being by malice another with knowledge. Id. second-degree murder by any of the express implied, either general in- caused.”). criminal Therefore may be with death means unnecessary particu- a struction because was amended the murder legislature In 1980 the second-degree murder lar mental state N.M.Laws, its form. 1980 present to statute which the specified was was one now However, legislature after the ch. 21. even in- without additional could evaluate statutory rea changed the mens of second- stating Unfortunately, instead struction. aforethought to degree murder from malice legislature “specified that established that knowledge, continued to hold this Court second-degree mental state” for general-intent is a murder out legislature Doe Court noted that the set 554, crime, Ortega, 565 n. State “specific second-degree mur- intent” for 1196, (1991); 9, P.2d 1207 n. language suggest der. This led some to Id. Beach, P.2d specif- murder that was now (1985),4 and therefore that ic-intent crime. defense, Beach, intoxication is not cf. (discussing at P.2d at N.M. attempted in to 35. This Court Beach de inapplicability capacity of diminished by stating that up “[t]he clear the confusion fense). Campos us to these now asks revisit ‘spe- wording Doe would have been better ” holdings. knowledge’ ‘specific cific rather than intent.’ Beach, 118. at 699 P.2d at However, explanation only this added to the Knowledge Second-Degree 1. Rea Mens retaining “specific” in problem by the term Murder conjunction proper “knowledge.” The with Campos on our focuses statement that clarification should have been to state state for Beach that the mental second-de- actually say “specified Doe meant mens “specific knowledge.” Id. gree However, by nondeserip- applying rea.” suggests specif- that the mens rea of rea of “specific” tive term the mens knowledge mur- ic transforms an “knowledge” the Beach Court created specific-intent into a crime for which der linguistic link the mens unintended between However, intoxication be a defense. would concept knowledge legal and the rea this is an incorrect statement of the law. specific-intent crimes. First, the use of the we note Unfortunately, stumbled “specific knowledge” Beach was both term linguistic pitfall Ortega, 112 into the same unnecessarily confusing due unfortunate and noting that N.M. in- similarity “specific the term its ‘specific “the intent’ set forth in the [murder] tent,” legal which is a term art. statute an element of crime [of Doe, initially in State v. confusion arose attempted clarify in foot- murder].” We (1983), when that, stating, suggest- N.M. note in so not were why explained the trial court did this Court ing specific-intent general give an instruction on n. 9. have crime. at 565 n. 817 P.2d at 1207 wording However, again, case. The criminal intent in that Doe Court once better “specified mens the 1980 of would have been explained that before amendment statute, is an necessary rea” set forth the murder statute the murder mental otherwise, (1995), expressly single unsup- suggests abro- it is that a sentence of To extent ported Abeyta, gated. dicta footnote in State in a n. 5 242 n. element of the crime of Ac- traditionally murder. criminal law has been viewed as confusion, cordingly, any to avoid further concept a bifurcated embracing either the opinion will refer to the mens rea of second- specific requirement purpose or the more degree simply knowledge. general knowledge one or awareness.” Montana, Sandstrom v. 442 U.S. 525- 2450, 2460, (1979) 99 S.Ct. 61 L.Ed.2d 39 Specific 2. General Intent v. Intent added) (alteration (emphasis in original) Having proper clarified the (quoting United Gyp- States v. United States murder, mens rea for we now Co., sum 438 U.S. 98 S.Ct. Campos’s turn to contention that second-de (1978)); 57 L.Ed.2d 854 People see also gree murder analyzed nevertheless should be DelGuidice, 199 Colo. specific-intent as a explained crime. We (1979) murder, (“Second-degree because it specific-intent Beach that the class crimes contains the mens rea ‘knowingly,’ element is encompasses those crimes for which the stat crime.”).5 general intent utory elements include an intent to do some further act or achieve some additional conse In Garcia this Court further Beach, quence. 102 N.M. at approach clarified the we took Beach. 117; Hood, People 444, 82 see also 1 Cal.3d We considered in Garcia the differences be Cal.Rptr. premeditated tween first-degree murder and (“When the [of definition a crime] refers to Garcia, second-degree murder. defendant’s intent to do some further act or noted, 837 P.2d at 865-66. We consequence, achieve additional the crime is though “Even an killing intentional includes intent.”). specific deemed to be one of knowledge the element strong proba of a remaining crimes that lack this element of bility harm, great bodily of death or comprise general- further intent the class of true; necessarily converse is not killing Thus, general-intent crimes. crime knowledge requisite probability is one for which no additional intent to ac necessarily does not include an intentional complish goal specified. a further Indeed, killing.” pointed out that it precisely the deliberate intention to cause requir 38. A crime defined as distinguishes death premeditated first- ing knowledge, the mens rea of such as sec degree murder from ond-degree require any does not Id. at 837 P.2d at 866. It is this delib further intent and therefore does not fall death, beyond erate intent to cause the de within specific-intent the class of crimes. As actions, fendant’s intentional that makes noted, properly Beach Court “Second- premeditated first-degree specific- murder a definition, ... statutory Similarly, any intent crime. the lack of ad not contain [does] an element of intent to do ditional intent element renders second-de a further act or achieve a further conse gree general-intent murder a crime for quence.” Accordingly, Id. at 645. as a which intoxication is not a defense. crime, “knowledge” second-degree murder is Furthermore, general-intent Supreme although crime. The U.S. Garcia holds (which expressed agreement killing pre- with this view of an intentional lacks

knowledge Montana, deliberation) crimes in Sandstrom v. meditation or can also be classi- noting murder, id, element “[t]he of intent fied as this hold- important phrase “gen- It is not to confuse the that has no stated mens rea. This mens rea is "general eral-intent crime" with that wrongdoing purpose- criminal defined as conscious or the intent," concept. doing which is a distinct See 1 ful of an act that the law declares to be a Scott, Jr., Wayne R. LaFave & general-intent Austin W. Sub- crime. The class of crimes on the 3.5, stantive Criminal Law at 313-16 other hand is best defined as the those crimes intent”); crimes, meanings "general specific-intent different which are not (UJI general SCRA criminal would include both crimes with a mens rea of Note). general intent and Use General criminal intent is criminal intent and those with a mens knowledge. term used to define the mens rea for a crime rea of required murder ... is an defense. “malice” for intent

ing justify not an intoxication does greatly do kill or an intent to an act to only to serve as a defense Intoxication would dangerous of or with to the lives others crime, aspect of name- specific-intent the the knowledge strong prob- that the act creates a killing, nature of the but ly the intentional (Em- ability great bodily harm.” death or guilty of still leave the defendant would of added)). phasis second-degree also knowing killing, at P.2d at 864 murder. id. Cf. that, by Accordingly, apparent it is 43. neurological impairment ne- (noting that 30-2-1, legislature amending the Section is irrele- gates specific intent and therefore merely to terminolo- intended modernize the charge second-degree of murder to the vant mal- by replacing term gy the statute the Beach)). (citing aforethought language that ice with clearer meaning already of implicit

was within the aforethought. legislature malice did not Legislative Intent 3. dramatically intend to alter the mens rea for for our support 41. additional logical We find second-degree murder. Thus it is to gen- holding second-degree that, taking legisla- is a step, murder conclude this the depart legisla- not to is not ture did intend from crime for which intoxication eral-intent tively long line case law that overrule the of by looking legislative intent a defense general- second-degree as a defined murder of stat- the amendment the murder behind crime that held intoxication is not that, legislature when the ute. We note second-degree to murder.6 defense statute, so the murder it did amended background previous the of our mur- against policy Strong public concerns bolster cases as as our uniform instruc- der well legislature did not our conclusion that Garcia, 114 tions existence at time. intoxication serve as a intend allow 837 P.2d at 866. second-degree prev- defense to murder. The involving alence of crimes intoxication specifically In Ortega examined Mexico, particularly grave problem in New legislative amendment of 30-2-1. Section paramount legisla- and is of concern to the Ortega, 112 at P.2d at N.M. Vargas, ture. Cf. Buffett “mal- explained 1206-07. We that the term n. 509 n. P.2d previous aforethought,” as used in our ice (1996) (discussing New Mexico’s serious statute, sym- a mere “ha[d] murder become drivers); problem with ex. rel. drunk Id. denoting various mental states.” bol Kennedy, Schwartz at 1207. found P.2d We (1995) problem of [by “[a]mong the mental states so denoted fatalities). high rate of DWI-related See know- ... intent to an act term] [is] do DelGuidice, generally People v. 199 Colo. great ing probably that it will cause death public policy (citing harm____” bodily Id. We therefore con- justification allowing not intoxication as amending the legislature, cluded that the knowledge). a defense as statute, simply replaced more murder aforethought” term “malice archaic Other Jurisdictions A yet descriptive for the equivalent more terms second-degree jurisdictions first- and Finally, mental states for a review of other (for (“We majority differing thus that the reveals that a states murder. conclude allowing slaughter killing. § Conversely, reading statutes —for See 30-2-1 statute as second-degree (murder); murder an intoxication defense (manslaughter); Smith 30-2-3 surprising results. lead to and unintended 770, 773-74, could Although we with this issue are not confronted voluntary manslaughter gen- (noting that today, quite it is conceivable that a defendant erally category is not a catchall for homicides argues successfully negated who intoxication murder). possibility that are not This most cer- knowledge rea for mur- mens tainly legislature intended when it not any could be convicted der not statute. amended or man- homicide —under either reasons) not intoxication a de do allow homicide and that intoxication is no defense rea). including to reckless majority fense to mens Thus a clear jurisdictions not many do allow intoxication states that do allow intoxication to charge defeat negate knowledge. Roughly mens rea Consequently, we hold that the trial court did half of still the states follow common-law when err it concluded that intoxication is approach barring an intoxication defense a defense to and crimes, general-intent including second- therefore is also not a defense to See, State, degree e.g., v. 307 murder. Shell felony murder. 46, 358, Md. A.2d 512 approaches concluding alternate and that it is IV. BACA’S REFUSAL TESTIFY TO

best to bar on retain intoxication defense general-intent flaws); despite crimes Annota Campos next contends that tion, Modem Status the Rules Vol as to of he right was denied his constitutional to con untary Intoxication as to Criminal Defense against front witness him. His assertion is (1966 Charge, Supp.1995) 8 A.L.R.3d 1236 & that, trial, on during based the fact Ber states); 65(a) Robinson, (listing supra, § n. questions nie Baca refused to answer several (same). 11 But Egelhoff, see v. 272 State posed Campos. Baca even maintained his 114, 260, Mont. (holding 900 P.2d 266 stat contempt by silence under threat of prevented ute that consideration of intoxi court. Rather than force the court to find knowledge cation for of evaluation mens rea in contempt, Campos voluntarily Baca aban process), to be unconstitutional violation of due doned his cross-examination Baca of and — granted, Egelhoff, rt. v. Montana agreed judge to allow the as factfinder to ce -, 593, U.S. 116 S.Ct. 133 514 L.Ed.2d prior read Baca’s Campos statements. (1995).7 acquiesced therefore in the admission of prior despite

Baca’s statements his continued testify to on Acquies refusals the stand. 46. Of the that states have moved evidence, however, cence of admission away approach from the traditional gener to constitutes on appeal. waiver the issue crimes, al- specific-intent several have Attaway, State v. 114 N.M. 835 P.2d statutorily barred the as a use intoxication 81, 141, (Ct.App.1992), aff'd, 85 117 N.M. 870 knowledge defense to crimes such as second- (1994). Campos 103 P.2d that contends we See, e.g., § Idaho Code 18- should still his claim review under the funda (1979); (1981); § 193.220 Nev.Rev.Stat. mental error doctrine he because asserts a (1979). S.D.Codified Laws Ann. 22-5-5 As right However, is at fundamental stake. for those states that do allow intoxication to Campos’s abandonment cross negate knowledge, many still hold that the agreement examination and his to the admis inapplicable defense mur is prior sion of the statements invited error because, statutes, der under their second- Campos alleges now was fundamental. degree murder also includes the lesser mens The doctrine of fundamental error cannot be rea element v. recklessness. See Weaver remedy invoked to own defendant’s invit 535, (Ala.Crim.App.) 591 So.2d Bankert, 614, ed mistakes. State 117 N.M. (concluding that is no intoxication defense (1994). Accordingly, P.2d depraved-heart on murder based reckless argument this is without merit. mind), (Dec. 6, 1991); state of cert. denied Dufield, N.H. A.2d V. JEOPARDY DOUBLE (1988) (same); Model Penal Code 210.2(1)(b) 2.08(2), §§ (noting that 48. Campos’s argument final is that sentencing recklessness one mens rea for criminal his both conviction and acknowledge Supreme opinion, filing 7. We that the U.S. Court this but after of motion for reviewing currently rehearing, Supreme whether a defendant has a issued U.S. its right process opinion Engelhoff, - U.S. -, due consideration of intoxication in Montana (1996); evidence as a defense to a crime with the mens 116 S.Ct. 135 L.Ed.2d howev er, knowledge. filing opinion Subsequent unchanged. rea of of this Court remains McKnight, Pamp.1992); Castle v. underlying felony violates murder and the (1993). The trial protections against double the constitutional point finding be jeopardy. The State admits reasonable doubt cannot court’s agrees Campos that appeal. finding ignored, The State nor can this reconciled be underlying the conduct CSP and Ortega, rule in with the unitary, Swafford, at (1991). Under 14-15, 810 P.2d at Ortega, a defendant may not be convicted legislature punish not intend did finding the de murder absent a id. at killing, twice for the same either “intended to or was kül[] fendant at 1235. therefore concedes The State knowingly might that death result heedless “case should be remanded for resentenc- Id. his conduct[ ].” from ing Defendant’s with instructions vacate Despite the trial court’s reasonable concession, conviction.” Given this CSP rule, Ortega court doubt and the the trial analyze Campos’s not further double- need that its was based concluded because doubt generally v. jeopardy arguments. See State voluntary Defen upon the intoxication of the Contreras, 486, 491-92, 903 P.2d 120 N.M. it could for either dant not be considered (1995) 228, (applying double-jeopardy felony second-degree murder murder. Campos’s analysis). therefore reverse We Therefore, compelled the court felt trial first-degree for CSP. conviction and sentence felony Contrary Campos convict of murder. view, my that majority’s opinion the it is unchallenged finding of doubt the reasonable VI. CONCLUSION by supported trial conclusion court reasons, forgoing For we affirm felony Campos guilty of that was not either Campos’s for conviction second-degree murder or murder. I am also murder, his for first-de- reverse conviction majority, opinion, contrary to the that penetration, gree criminal sexual and remand pre court’s conclusion that our case law resentencing conformity opin- this with voluntary considering him from vented ion. defendant was error as a intoxication of law. matter IT IS SO ORDERED. second-degree

52.First murder have and subjective elements malice. When death MINZNER, JJ., RANSOM, BACA and harm, intentionally-inflicted from results concur. voluntary is either murder or resultant crime FRANCHINI, (dissenting). J. Aragon, v. manslaughter. See State 85 N.M. 401, 402, 974, (Ct.App.1973) 512 P.2d 976 FRANCHINI, (dissenting). Justice (holding may support that facts one set of second-degree first- or murder or vol- either respectfully I dissent. This was not untary manslaughter). killing The is court, trial. The trial in its role as proves if state that defendant factfinder, it had a specifically stated that only intended to do the act that killed the that intended to reasonable doubt indicating but also victim had state mind that it a reason kill Gutierrez and also had 30-2-1; Ortega, 112 § malice. See that, doubt at the the acts were able time (denoting P.2d at 1204 four mental 817 committed, Campos knew creat that his acts support that conviction for first- states great strong probability ed a death or second-degree holding murder and that 30-2-l(B) harm. See NMSA bodily § felony-murder, that prove state must show (setting forth murder and elements murder). had of one of those mental defendant malice did not The State Omar-Muhammad, states); State v. Ibn 102 challenge finding the trial court’s of reason (hold- (1985) doubt, finding binding 694 P.2d able that N.M. 12-213(A)(3) Court. See (Repl. ing prove had state must defendant SCRA element, subjective knowledge negate required of facts to establish also offense murder); raised in necessary depraved-mind when this context is a failure of malice proof Robinson, 191, 194, defense.” 1 Paul H. Crimi Torres v. 43 P.2d (1984). nal Law (1935) (stating if proves state Defenses common-law rule followed in Mexico New malice, killing only ordinary is second- that “an act committed while in state of murder, proves degree but if state intensified intoxication is not criminal less malice, may defendant be convicted of first- thereof, particular reason when a but murder). necessary or other state of mind is a element broadly Before de crime, particular to constitute a the fact of killing fined as an unlawful with malice afore may intoxication be taken into consideration Smith, 777, 779, thought, State see N.M. determining such intent or state of mind.” (Ct.App.1976), and malice to (6th Dictionary 1990); Black’s Law ed. satisfy second-degree im murder could be 274, 275, Tapia, State plied if there was no evidence of “considera (stating principle but Padilla, provocation,” ble see 66 holding specific no intent statu because (1959). torily required No in proof specific charge); other of a not a state mind was toxication defense to such 91, 101, 140 Cooley, required P. for conviction However, (holding intoxication anot consid legislature for eration murder because amended the murder statutes. I not do implied malice could be from commission of a agree majority’s with the characterization of killing provocation). without legislature’s underlying intent this modi “merely” modernizing fication as the termi Second-degree “spe- 55. not a murder is nology By amending statutes. Section crime, “general-intent” but cific-intent” 30-2-1(B), legislature defined malice requires proof specific knowledge. of narrowly, introducing more a “knowl new Ortega, explained we that the state of mind edge” Now, for element. necessary “spe- for murder is prove beyond murder the state must rea a knowledge,” cific but we stated that we did sonable that a at knew doubt defendant least imply not mean to that murder is a strong probability that his created act a of “specific-intent 112 at crime.” 565 n. great bodily death or harm. Section 30-2- believe, 9. I P.2d 1207 n. do not 1(B); Beach, see also State v. however, imply Ortega that meant that 115, 117 (1985) (explaining P.2d that only “general-intent a is second-degree murder “now contains an ele crime.” knowledge.”); subjective ment of Common Sama, “general-intent” crime, A wealth v. 56. in its broad Mass. 582 N.E.2d sense, (1991) particular est is one in a crimi (holding that second-de specified nal intent is not in the statute. gree subjective, prosecutions not ob a a shown). regarding When statute is silent criminal jective, knowledge must be This is element, presume general intent criminal precisely the issue on which the trial court as an intent essential element of crime had a reasonable doubt. legislature it is unless clear that intended is a that Intoxication circumstance State, to omit that element. Santillanes v. determining should be when considered (1993). 358, 361 P.2d subjective a state mind of of defendant criminal intent is defined as “con General “ charged ‘[I]ntoxication’ with wrongdoing,” purposeful doing or “the scious physical means a disturbance of mental or a of an act the law declares to be crime.” capacities resulting from of the introduction Omar-Muhammad, 102 N.M. at body.” substances into the Model Penal long held that P.2d at New Mexico has 2.08(5)(a) (1985). Code “Like mistake and of is evidence intoxication not ad illness, may general-intent mental a for state of intoxication missible crimes. may negate specific a Intoxication legislature a crime defines 57. When (like subjective state mind. Part only of the confu- example) manslaughter, when regarding in our common it is its commission sion law prohibited of a act and terms mind, to allow consideration intoxication rely particular proper not does state distinguishing crimes based regard arises from sole- mind of defendant the state of “specific-intent” “general- only ly upon their result is irrelevant —we are con to the art, “specific- general status. As had a intent” a term the defendant cerned act regard crime” is for which a statute ex- intent one criminal intent unlawful Bit requires proof “intent the result. See State pressly do produced 240, 242 ting, act or a further conse- 291 A.2d further achieve 162 Conn. Bender, (‘When quence.” of a the elements of a crime consist (1978). 796, 797 courts particular a mental Our have description of a act and only long followed a rule that intoxication specific in issue blanket nature the element first-degree mur- is a consideration to do the whether the defendant intended is “specific-intent intend, and other crimes” with- has der proscribed act. If he so he did may examining out whether intoxication also culpability.”); requisite general Kirkaldie, mind besides negate the intent states Mont. consequence. I a further act or be- achieve mind (stating that state of they our did so because until 1980 homi- lieve charge homicide is at issue of deliberate express no other cide statutes contained act proof that committed requiring defendant requirements. mind state of result, relevant, knowing so intoxication negligent is not in a but intoxication relevant agree LaFave professors I charge specific state homicide because Scott that charge); mind is not at issue under that cf. Martin Ala.App. 318 So.2d better, may be said that it when (stating that is not intoxication considering the effect of the defendant’s voluntary manslaughter and af defense voluntary upon his criminal lia- intoxication was firming conviction case in which there bility, stay away misleading from those provocation defendant was no evidence but general specific concepts of intent and in- water), pushed into intoxicated when he victim Instead, ask, first, tent. one should what denied, rt. 294 775 (or Ala. 318 So.2d any knowledge) intent if does the crime ce Duffield, Mich.App. People v. (1975); 20 then, require; if the question crime (1969) (holding that intoxi 174 N.W.2d 137 (knowledge), requires some did intent “non-specific” available in a intent cation isn’t an defendant fact entertain such aff'd, manslaughter), Mich. crime like 387 (or he in what did fact know crime (1972). 300, 197 25 know). N.W.2d him to requires Scott, Jr., cognitive pro Wayne may Intoxication affect 1 R. LaFave & Austin W. 4.10(a), Criminal Law coolly Substantive prevent person a de cesses and from (footnotes also deleted); see knowing consequences of his liberating or Lunn, acts, usually a P.2d it has no effect on whether but ( J., (Sutin, dissenting) person purposefully doing something Ct.App.) (urging de example, Supreme adopt allowing a crime. there is Court to a rule a clared to be For purpose jury weigh a of intoxication on a question no drunk driver is effect car; capacity mental fully driving just his does not care defendant’s determine he a was form the doing he is a crime. “As whether he able to malice that what general necessary a proposition, defendant should conviction of responsibility despite fact is not when he be relieved denied, crime), cert. plan, operate equipment, specific-intent able to devise denied, cert. others, (1975), carry out P.2d 248 the behavior of instruct Terry v. requiring physical 96 S.Ct. 46 L.Ed.2d 648 acts skill.” U.S. (Ind.1984). Note, as a 1085, 1088 (1976); Intoxication Criminal N.E.2d Defense, 55 Colum.L.Rev. to allow consideration voluntary intoxi- “implied if (stating requires malice capacity cation or diminished in second-de- consciously great murder, defendant to have created a gree and should continue to do so. murder, guilty proof Beach, risk of death to however, be this Court refused to making intoxication the defendant unaware capacity allow a diminished instruction for negate of the risk should be admissible to second-degree murder because of its blanket malice and thus reduce the crime to man- conclusion that second-degree murder is not slaughter”). “specific-intent crime” and because the by existing Court felt bound criminal capacity possess specific 61. The jury uniform limiting instructions diminished may just by state of mind be as affected capacity defenses to willful and deliberate capacity intoxication as the to intend to do a specific-intent murder and other crimes. 102 support further act. To conviction for first- N.M. at Jury 699 P.2d at 117. instruc- degree example, the state must tions, however, are controlled and are a prove specific that the defendant had state statutory law; reflection of they and common “coolly of mind in which he deliberated” be- binding precedent are not upon this Court. par- fore he carried out his intentions. This Wilson, 793, 795, See State v. ticular state of mind is not what makes first- (1994) (“The Supreme Court degree “specific-intent murder a crime” —and amend, modify, will abolish uniform yet specific it is this proof state mind that instructions when such instructions are erro- may negate. intoxication also See State neous.”). Padilla, (1959) (approving instruction that evi- Moreover, the Beach Court did not intoxication, voluntary, may dence of if even consider whether may intoxication in determining be used whether “the mind of subjective specific affect knowledge to the incapable the defendant was of that cool and may that a defendant not know the premeditation necessary deliberate to consti- likely consequences Further, of his act. degree”). tute murder in the first improperly lumped manslaughter with considering murder in wheth- Just the state of mind of “cool er intoxication is relevant to the elements deliberation” does not make required crimes, for conviction for those er- crime,” “specific-intent “knowing” murder a roneously stating that both crimes had a “spe does not make murder a knowledge element. See Nevertheless, cific-intent “knowing” crime.” disagree 699 P.2d at 118. I with Beach to specific may is a state of mind that be affect voluntary the extent that it holds that intoxi- by ed external influences such as extreme capacity cation and diminished not fac- are intoxication or internal mental deficiencies may that determining tors be considered in insanity. that do not rise to the level of We whether the state has met its burden of long recognized principle have because showing knowledge the defendant had always involuntary we have held that intoxi likely consequences beyond of his acts a rea- may cation be a defense to either first- or Moreover, agree sonable doubt. I with the 1986, murder. See SCRA Padilla, principles this Court stated in 66 allowing 14-5106.The rationale for invol 315-16, untary intoxication aas defense at all is explained that mental deficiencies less may negate because intoxication in fact the insanity Privett, may than affect malice for murder. the condition of the 104 Cf. 79, 82, 55, (1986) intoxication, mind and its (stating abilities. Extreme 58 voluntary, if charge jury may ability that a of even murder a must affect the to appreciate consequences fully consider the effect of reason and upon intoxication mind”). may ability defendant’s “state of as it affect the to deliberate. Beach, Citing majority opinion to I compelled principle am the that consistently notes that this specific Court has refused where the existence of a intent or 166 necessary it relates formation of mind is a element of toxication as

state of crime, jury determining “knowledge” rea intent or mens of the offense. See 114, Egelhoff, State 272 mind with which defendant acted v. Mont. 260 state of (1993), may granted, Egelhoff, factors v. may into consideration that cert. Montana take — U.S. -, 593, 133 116 L.Ed.2d mind. Defendants S.Ct. 514 affect that state of (1995) may Egelhoff, Supreme In the Montana charged with prevent to Court that the instruction that present evidence extreme intoxication held of subjective knowledge. considering ed the defendant’s from vol rebut an inference of untary to whether support this conclusion from the intoxication determine he There is See, e.g., requisite “knowingly” had mental to holdings of our states. state sister 276, 280 14, 47 cause relieved the v. 254 Ala. So.2d the death another State Helms Watkins, (1950); part prove beyond Ariz. v. 126 614 of its burden to State Banc) (1980) (In every (stating that doubt element of the of 843 reasonable charged thus murder statute includes fense and denied defendant his when “intentionally,” right “knowingly,” process. 900 P.2d at 266. mental states due “recklessly,” may Egelhoff inten coart was concerned with the intoxication affect defen conduct, knowing opportunity present dant’s lack of rebuttal tional or but reckless Foster, conduct); People Cal.App.3d precluded 19 that the had v. evidence intoxication (1971) Cal.Rptr. (stating forming requisite him mental 98 from state. result, knowledge in As a although is not identical with the Montana Court concluded tent, prosecution’s proof mental it is state to which intoxication burden relevance, if knowledge and is a element of the mental state was has obvious reduced. crime, requisite element of a court must in struct on intoxication if there sufficient case, In this of intoxi- evidence Gross, evidence); People Ill.App.3d presented cation factfinder and he Ill.Dec. N.E.2d had a reasonable doubt as to whether Cam- (1977); Hicks, People v. Ill.2d pos requisite to form was able mental (1966), denied, N.E.2d 461 cert. U.S. “knowledge,” state “that in- i.e. (1967); 18 L.Ed.2d 236 87 S.Ct. Com tended kill or knew his Gutierrez acts Sama, 411 Mass. monwealth strong probability of death created (stating that “[e]vi N.E.2d great bodily harm.” The trial court’s subse- certainly bears on the dence intoxication quent spite conclusion of his reason- ability requisite possess defendant’s able doubt he would not consider the Defen- knowledge of the he circumstances which dant’s intoxication and therefore Warren, acted”); 104 N.J. guilty find him murder was error. (explaining

A.2d that when my it is opinion, immaterial whether the legislature its murder modified statutes subjective specific lack of intent or knowl- replaced “specific-intent” “pur crimes with illness, edge the result of involun- mental posely” replaced “knowingly’’ “gen intoxication, tary voluntary or or another dis- eral-intent” crimes with “recklessness” ability preventing having from defendant Davis, negligence”); People v. “criminal requisite required state of mind for the (1962), A.D.2d N.Y.S.2d charged. my commission of crime aff'd, 13 N.Y.2d 247 N.Y.S.2d opinion, no legitimate there is difference in (1964). N.E.2d involuntary voluntary effect in- between or Though majority opinion required state of cites to toxication on mental majority” position subjective knowledge voluntary If the re- “clear intoxi- defendant. cation, question quired by far of law is from set- of the defendant offense charged by or, Supreme is vitiated the intoxication tled. United States case, currently challenge reviewing a constitutional created reasonable doubt factfinder, voluntary exclusion of evidence of in- the mind of the that evidence is always and should relevant be considered. culpable

The effect of intoxication on the

knowledge legally of. the defendant is the

significant factor, not whether the intoxi- involuntary.

cation is or view, Contrary majority intoxication,

my opinion that evidence of vol-

untary involuntary, must be considered any type

the factfinder to reduce of first- murder to murder or

voluntary manslaughter, voluntary manslaughter.

murder to It can- used, however,

not be to reduce murder or

voluntary manslaughter involuntary man-

slaughter or for that completely matter to consequences

excuse a defendant from the

his unlawful act. reasons,

69. For the above-stated I re-

spectfully dissent. Mexico,

STATE of New

Plaintiff-Appellee,

Rogelio PANDO, Defendant-Appellant.

No. 15868. Appeals

Court of of New Mexico.

July

Case Details

Case Name: State v. Campos

Court Name: New Mexico Supreme Court

Date Published: May 30, 1996

Citation: 921 P.2d 1266

Docket Number: 21429

Court Abbreviation: N.M.