STATE OF NEW MEXICO, Plaintiff-Appellant, v. ELEXUS JOLAINE GROVES and PAUL ANTHONY GARCIA, Defendants-Appellees.
No. S-1-SC-37039
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
November 30, 2020
Opinion Number: 2021-NMSC-003
Released for Publication January 26, 2021. APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Brett R. Loveless, District Judge
M. Victoria Wilson, Assistant Attorney General
Santa Fe, NM
for Appellant
Jeffrey J. Buckels
Albuquerque, NM
for Appellee Elexus Jolaine Groves
Harrison & Hart, LLC
Nicholas Thomas Hart
Albuquerque, NM
for Appellee Paul Garcia
OPINION
THOMSON, Justice.
{2} The sole issue before the Court in this interlocutory appeal is whether aggravated fleeing a law enforcement officer,
I. BACKGROUND
{3} For purposes of this interlocutory appeal, the following facts are not disputed. Codefendants Elexus Groves and Paul Garcia (Defendants) stole a van from an Albuquerque business. Groves drove, and Garcia rode in the passenger seat. Rather than stopping when they realized that police were in pursuit, they fled. During the pursuit through residential neighborhoods, Groves drove in excess of the speed limit, at one point reaching a speed of 78 miles per hour (mph) in a 35 mph zone. Their flight from law enforcement ended when Defendants ran a stop sign and hit another car while driving at 68 mph. Two passengers in the car that Defendants hit died from injuries sustained in the collision, and the third passenger sustained injuries. Defendants fled from the scene on foot, stole a second vehicle, abandoned that vehicle soon afterwards, and were later apprehended.
{4} The State charged each Defendant with (1) two counts of first-degree murder (felony murder),
{5} The district court reasoned that “the felonious purpose [of aggravated fleeing a law enforcement officer] is flight which endangers the public” and therefore that the purpose of committing the felony is the same as the purpose of committing a homicide. (Emphasis added.) The district court concluded that aggravated fleeing a law enforcement officer may not serve as the predicate felony for a felony murder charge under Marquez.
{6} The State sought interlocutory appeal of the district court‘s order pursuant to
II. DISCUSSION
{7} New Mexico‘s murder statute broadly states that “[m]urder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused . . . in the commission of or attempt to commit any felony.”
{8} The purpose of the felony murder statute is to deter killings that occur in the course of grossly negligent or reckless conduct. See, e.g., State v. Campos, 1996-NMSC-043, ¶ 16, 122 N.M. 148, 921 P.2d 1266. However, we must balance this statutory purpose with the need to preserve the mens rea requirements for each legislatively defined category, or degree, of murder.
A. Causal Relationship
{10} The felony murder statute states that the death must occur ”in the commission of or attempt to commit any felony.”
{11} In this case, neither party disputes that there was a causal relationship between the felony and the deaths because Defendants’ felonious act of aggravated fleeing, without an intervening force, caused a car crash that resulted in both deaths. Therefore, the predicate felony in this case satisfies the first Harrison requirement.
B. Collateral Felony Rule: A Predicate Felony Must Be Independent of or Collateral to the Homicide
{12} We now turn to the second, and perhaps most vexing, requirement, which is embodied by the collateral felony rule: the felony must be independent of or collateral to the homicide to be a predicate felony. As we will explain, we hold that the felonious purpose of aggravated fleeing is to escape apprehension by law enforcement. Because this felonious purpose is independent of the felonious purpose to injure or kill, aggravated fleeing a law enforcement officer may serve as a predicate felony for felony murder in certain circumstances, which we will further explain in the following section.
{13} The discussion of the collateral felony rule compels us to look back at the original purpose of the felony murder statute itself. “The commonly stated purpose of the felony-murder rule was not to deter the underlying felony, but instead to deter negligent or accidental killings that may occur in the course of committing a felony.” Campos, 1996-NMSC-043, ¶ 9. The policy underlying the felony murder rule is that it should be easier for the state to prove that a defendant intended to harm a victim when the defendant decided to engage in reckless conduct that put others (the victim) in harm‘s way,
{14} The primary concern with the application of the felony murder doctrine is that “the prosecution may be able to elevate improperly the vast majority of second-degree murders to first-degree murders by charging the underlying assaultive act as a predicate felony for the felony-murder doctrine.” Id. ¶ 19. Allowing the state to improperly elevate the vast majority of second-degree murders to first-degree murders “would eliminate the mens-rea requirement for murder in most homicide cases and circumvent the legislative gradation system for classes of homicides.” Id. ¶ 10. “Our responsibility is to make certain that, consistent with legislative intent, first-degree murder is reserved only for the most reprehensible murders that are deserving of the most serious punishment under New Mexico law.” Marquez, 2016-NMSC-025, ¶ 24. The proper application of the collateral felony rule attempts to assure the proper use and avoid the misuse of the felony murder doctrine.
[T]he purpose of the collateral-felony limitation to the felony-murder doctrine is to further the legislative intent of holding certain second-degree murders to be more culpable when effected during the commission of a felony—thereby elevating them to first-degree murders—while maintaining the important distinction between the classes of second- and first-degree murders.
Id. ¶ 15 (quoting Campos, 1996-NMSC-043, ¶ 22 (internal quotation marks omitted)).
{15} The collateral felony rule guards against misuse by requiring that a “predicate felony cannot be a lesser-included offense of second-degree murder.” Campos, 1996-NMSC-043, ¶ 19. In other words, a predicate felony cannot be “the underlying assaultive act” that caused the death of the victim; the predicate felony must be a separate and independent crime from the homicide. See Campos v. Bravo, 2007-NMSC-021, ¶ 10, 141 N.M. 801, 161 P.3d 846. The felony cannot be so similar in type to second-degree murder that if performed more aggressively, second-degree murder may have resulted. See id. For instance, the felony of aggravated battery cannot be a predicate felony because it is a lesser-included offense of second-degree murder. Marquez, 2016-NMSC-025, ¶ 18; Campos, 1996-NMSC-043, ¶ 23. In Marquez we put it this way: “The difference between aggravated battery and second-degree murder is . . . a difference of degree, not of kind[.]” 2016-NMSC-025, ¶ 18 (emphasis added). If the difference between the felony proffered as a predicate felony and second-degree murder is one of degree, it will fail the collateral felony rule. See id. If the difference between the felony proffered as a predicate felony and second-degree murder is one of kind, it is more likely to be an appropriate predicate felony under the collateral felony rule. See id.
{16} The collateral felony rule makes sense when we consider that “the vast majority of homicides are predicated on an initial felonious assault or battery of some kind.”
{17} In determining whether a particular felony is independent of and collateral to the homicide and whether a particular felony is a lesser-included offense of second-degree murder, this Court “look[s], not to the nature of the act, but rather to whether the legislature intended that a particular felony should be able to serve as a predicate to felony murder.” State v. Duffy, 1998-NMSC-014, ¶ 23, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by State v. Tollardo, 2012-NMSC-008, ¶ 37 & n. 6, 275 P.3d 110; see also Campos, 1996-NMSC-043, ¶¶ 20, 22. Prior to Marquez, this Court employed a strict elements test to determine whether a particular felony was a lesser-included offense of second-degree murder, which would disqualify its service as a predicate felony for felony murder. See Duffy, 1998-NMSC-014, ¶¶ 23-24 (concluding that “whether the legislature intended that a particular felony should be able to serve as a predicate to felony murder[,] . . . should be answered, in most circumstances, by application of the strict-elements test” to determine whether it would be possible to commit the homicide without also committing the felony). In Marquez, we announced and applied a new test—the felonious purpose test—to determine whether an underlying felony was actually a lesser-included offense of second-degree murder or whether it was an appropriate collateral felony that could support a charge of felony murder. Marquez, 2016-NMSC-025, ¶ 19. We discuss each test in turn before applying the felonious purpose test in this case.
1. The abandoned strict elements test
{18} Under the strict elements test, a proffered predicate felony would only fail the collateral felony rule “if all of the statutory elements of the lesser offense [were] completely embodied within the statutory elements of the greater offense [(second-degree murder)] such that it would be impossible ever to commit the greater offense without also committing the lesser offense.” Duffy, 1998-NMSC-014, ¶¶ 24-25 (emphasis added) (internal quotation marks and citation omitted). If the felony statute in question provided for multiple means of committing the crime, the proper inquiry was
{19} The strict elements test allows nearly all felonies besides assault and battery to serve as predicate felonies for felony murder, contrary to the purpose of the collateral felony rule which was adopted to serve as a limitation on the use of felony murder. Marquez, 2016-NMSC-025, ¶¶ 15-16, 19. Consequently, the Marquez Court replaced the strict elements test with the felonious purpose test, stating, “For purposes of the collateral-felony rule, legislative intent is better reflected in an assessment of felonious purpose.” Id. Accordingly, we apply the felonious purpose test to determine whether aggravated fleeing is a proper predicate felony.
2. The felonious purpose test
{20} A crime‘s objective is its felonious purpose, and if that purpose is something other than “to injure or kill,” the felony may serve as a predicate felony to felony murder. See id. ¶ 19.
When a crime‘s objective is to injure or kill, the crime cannot be said to be independent of a murder committed during the course of that crime. It is this aspect of a predicate felony, together with its inherent dangerousness and the presence of a second-degree murder mens rea, that elevates the homicide to first-degree murder.
{21} Determining a crime‘s felonious purpose does not ask what ultimate harm the Legislature was trying to prevent by enacting the criminal statute. This is where the confusion lies and where the district court erred. Ultimately, most criminal statutes are enacted to protect people from danger and preserve public safety. See e.g., State v. Vest, 2018-NMCA-060, ¶ 8, 428 P.3d 287 (observing that the felony of aggravated fleeing,
{22} The felonious purpose inquiry is “principally abstract in nature and is based largely on the Legislature‘s definition of the crime.” Marquez, 2016-NMSC-025, ¶ 19. At this stage of the analysis, we look only at the language of the statute itself. We do not look at the facts of the case at hand or into the mind of a particular defendant. “[A] dangerous felony may only serve as a predicate to felony murder when the elements of any form of the predicate felony—looked at in the abstract—require a felonious purpose independent from the purpose of endangering the physical health of the victim.” Id. ¶ 24.
{23} We demonstrated how the felonious purpose test works in Marquez by applying the test to the felonies of robbery,
{24} The Marquez Court applied the felonious purpose test to determine whether shooting at or from a motor vehicle,
{25} Central to the Marquez Court‘s holding was the fact that the statute criminalizing shooting at or from a motor vehicle required the defendant to have acted with a culpable mental state, which is to have been aware of and to have recklessly disregarded the welfare and safety of another person; that is, the statute required a form of injurious intent. See Marquez, 2016-NMSC-025, ¶ 23; see also
{26} The aggravated fleeing statute does not require a defendant to possess a culpable mental state of intending to threaten the welfare of another person‘s physical safety. The statute criminalizes willful and careless driving in a manner that endangers another person. It does not require that a defendant intend to endanger someone. See
{27} In an attempt to apply Marquez, the district court in this case stated that the felonious purpose of aggravated fleeing was to injure or kill the victim because the statute requires that the felony must be committed “in a manner that endangers the life of another person.”
aggravated fleeing is satisfied when the defendant flees a law enforcement officer with both: (a) the knowledge that the individual is a law enforcement officer, as designated by his [or her] uniform and marked vehicle, and (b) the knowledge that the law enforcement officer has signaled [the defendant] to stop, either by use of a visual or audible signal.
Id. ¶ 15. A defendant‘s intent or culpable mental state is that of fleeing the officer to avoid apprehension, not causing harm to another.
{28} It is clear to us that aggravated fleeing a law enforcement officer has a felonious purpose independent of the felonious purpose of second-degree murder. The felonious purpose of the aggravated fleeing statute is to flee from law enforcement to avoid apprehension. See
C. Inherently or Foreseeably Dangerous to Human Life (Mens Rea Requirement)
{29} Although this issue is not directly before the Court in this appeal we observe that for a felony to be a proper predicate for felony murder, the defendant must have
{30} When the felony murder doctrine originated at English common law, most felonies, including all murders, were punishable by death. Harrison, 1977-NMSC-038, ¶ 9. England‘s common law version of felony murder dictated that “any homicide committed during the perpetration or the attempted perpetration of a felony constituted felony murder” and was punishable by death. Id. “Since death also was the punishment for most felonies, it did not matter whether the defendant was put to death for committing the felony or for the homicide.” Id.
{31} In Harrison, we explained that although our felony murder statute persists today, we do not retain a presumption of mens rea to commit first-degree, willful and deliberate murder. Id. ¶ 12. Such a presumption is an entirely unsupportable “legal fiction” with one exception: If the underlying felony in a felony murder case is a first-degree felony, we presume that the defendant possesses the requisite mens rea for first-degree murder. Id. “This presumption is inappropriate today for lesser-degree felonies where moral, social, and penal considerations dictate that criminal liability should be imposed according to moral culpability.” Id. We concluded that if, in the commission or attempted commission of a second-, third-, or fourth-degree felony, a defendant also caused a death, we will not assume that the defendant had the requisite mens rea for first-degree murder. See id. (“[O]nly those [felonies] known to have a high probability of death may be utilized for a conviction of first-degree murder.“)
{32} In Harrison, we called this assessment the “inherently or foreseeably dangerous to human life test” and explained, “Assuming the actus reus condition is met, the mens rea of one who is committing a felony which is inherently or foreseeably dangerous to human life is sufficient to justify convicting a defendant of felony murder.” Id. “[I]n a felony murder charge, involving a collateral lesser-degree felony, that felony must be inherently dangerous or committed under circumstances that are inherently dangerous.” Id. ¶ 14. Whether a felony actually was inherently or foreseeably dangerous to human life is a question for the jury, and “both the nature of the felony and the circumstances surrounding its commission may be considered.” Id. ¶ 13.
{34} In Ortega we construed New Mexico‘s felony murder statute to require “proof that the defendant intended to kill (or had the state of mind otherwise generally associated with mens rea).” Id. ¶ 23. We held that “there must be proof that the defendant intended to kill (or was knowingly heedless that death might result from his conduct).” Id. ¶ 25. “An unintentional or accidental killing will not suffice.” Id. Therefore, the proper inquiry focuses on where a certain defendant lies on a spectrum of intent with “unintentional or accidental” sitting on one end and “intentional” on the other. The closer the circumstances of a particular case are to intentional, the more appropriate it is to infer the requisite culpable mental state.
{35} In enacting the felony murder statute, the Legislature determined that
intent to kill in the form of knowledge that the defendant‘s acts create a strong probability of death or great bodily harm to the victim or another, [consistent with] second degree murder under Section 30-2-1(B) if no felony were involved, is sufficient to constitute murder in the first degree when a felony is involved.
Id. (internal quotation marks and citation omitted). The Duffy Court interpreted this to mean that “the killing must be second-degree murder, apart from consideration of the underlying felony.” 1998-NMSC-014, ¶ 20. That is, the defendant must have a culpable mental state that rises at least to the level of mens rea required for second-degree murder.
{36} Whether the defendant‘s culpable mental state rises to that level will depend on the facts of the case. The fact finder must determine whether a defendant “committed [the felony] under circumstances that are inherently dangerous” and possessed a culpable mental state at least equivalent to that required for second-degree murder. See Harrison, 1977-NMSC-038, ¶¶ 12, 14, 25.
{37} Thus in this case, the State must establish that while committing aggravated fleeing a law enforcement officer, a fourth-degree felony (the lowest degree of felony in New Mexico), Defendants acted with a culpable mental state equivalent to that of a second-degree murder in that they knew their “acts create[d] a strong probability of death or great bodily harm.” See
{39} On the other hand, the district court could determine as a matter of law, based on the evidence presented, that the death that resulted from the felony was more accidental than intentional. See State v. Baca, 2015-NMSC-021, ¶ 31, 352 P.3d 1151 (“A directed verdict, technically appropriate only in cases tried by a jury, requires a court to decide at the conclusion of the state‘s case whether the direct or circumstantial evidence admitted at trial, together with all reasonable inferences to be drawn therefrom, will sustain a finding of guilt beyond a reasonable doubt.” (internal quotation marks and citation omitted)); Mayer v. Smith, 2015-NMCA-060, ¶ 7, 350 P.3d 1191 (observing that “in a non-jury trial, motion for a directed verdict [is], in effect, a motion to dismiss” for insufficient evidence (internal quotation marks and citation omitted)). In such a case, it would be proper to dismiss the felony murder charge.
III. CONCLUSION
{40} In this case aggravated fleeing a law enforcement officer may serve as a predicate felony for felony murder because it satisfies the causal requirement and the collateral felony rule. However, whether it is a proper predicate felony here requires the district court to determine whether a reasonable jury could conclude, based on the facts of the case, that Defendants acted with the requisite culpable mental state. We reverse and remand for further proceedings consistent with this opinion.
{41} IT IS SO ORDERED.
DAVID K. THOMSON, Justice
WE CONCUR:
MICHAEL E. VIGIL, Chief Justice
BARBARA J. VIGIL, Justice
JUDITH K. NAKAMURA, Justice
C. SHANNON BACON, Justice