1996 -NMSC- 73, State v. Brown

• Citation: 1996 NMSC 73,931 P.2d 69,122 N.M. 724
• Decision Date: 05 December 1996
• Docket Number: No. 21980,21980
• Court: Supreme Court of New Mexico
• Parties: , 1996 -NMSC- 73 STATE of New Mexico, Plaintiff-Appellee, v. James Jimmy BROWN, Defendant-Appellant.

Page 69

931 P.2d 69

122 N.M. 724, 1996 -NMSC- 73

STATE of New Mexico, Plaintiff-Appellee, v. James Jimmy BROWN, Defendant-Appellant.

No. 21980.

Supreme Court of New Mexico.

Dec. 5, 1996.

T. Glenn Ellington, Chief Public Defender, David Henderson, Assistant Appellate Defender, Santa Fe, for Defendant-Appellant.

Tom Udall, Attorney General, Gail MacQuesten, Assistant Attorney General, Santa Fe, for Plaintiff-Appellee.

OPINION

FRANCHINI, Justice.

¶1 Defendant Jimmy Brown ("Brown") appeals from a conviction of first-degree, depraved mind murder. See NMSA 1978, § 30-2-1(A)(3) (Repl.Pamp.1994). Following a jury trial, Brown was sentenced to life imprisonment for the murder conviction. On appeal, we address a single issue: Whether the trial court erred in refusing to instruct the jury that Brown's intoxication could be considered in determining the mental state required for conviction of depraved mind murder. We hold that a fact finder may consider evidence of extreme intoxication when determining whether a defendant possessed the requisite mental state of "subjective knowledge" for first-degree depraved mind murder. Accordingly, we reverse and remand for new trial. Because we answer this first question affirmatively, we do not address Brown's allegation of prosecutorial misconduct during closing argument.

¶2 Statement of facts and proceedings. On August 23, 1993, Oscar Zapata was shot and killed at the house of his girlfriend, Josephine Calanshe. The next morning, Brown was arrested and charged on an open count of murder. The evidence presented to the jury at Brown's trial, viewed in the light most favorable to sustain the verdict, established the following facts.

¶3 In early 1993, Brown met Josephine Calanshe ("Josephine"), and the two became friends. Though they dated briefly, by the summer of that same year, they were both dating other people. Nonetheless, Josephine and Brown remained friends; in fact, Brown and his friends would often "hang out" at her house drinking beer. Sometimes they would drink for a number of days in succession, which is what occurred prior to the murder in question.

¶4 On Monday, August 23, 1993, the day of the homicide, Brown, along with Toby and Richard Horton ("Toby" and "Richard"), began drinking beer around noon, and continued drinking throughout the afternoon. That evening they went to Josephine's house, where they continued to drink beer. Though all three men gave differing estimates of the amount of alcohol they consumed that day, by all estimates quite a large quantity of beer had been consumed throughout the day of the murder, approximately four and one-half cases (over 100 bottles of beer).

¶5 When Brown, Toby, and Richard arrived at Josephine's house, a number of people were already there, including Josephine, her boyfriend, Oscar Zapata (the victim), Brandy Matta ("Brandy"), Josephine's two children, and Brandy's younger brother and sister. Another person, Albert Padilla ("Albert"), arrived at Josephine's house shortly after Brown. Josephine introduced everyone to Oscar. Oscar and Brown shook hands and there was no apparent conflict or friction between the two.

¶6 Over the course of the evening, people were scattered throughout the house. For most of the evening, Brown, Toby, Albert, and Richard were drinking beer in the living room, and Josephine, Brandy, and Oscar were in the bedroom. The children were in the playroom off the living room. Occasionally, Oscar, Josephine, or Brandy visited with the group in the living room. No arguments or fights occurred at any time prior to the killing. At some point in the evening, Brown showed Albert a shotgun that he had brought to Josephine's house the previous Friday. After Albert examined it, Brown placed the shotgun behind the stereo.

¶7 At the time of the homicide, Josephine and Oscar were kissing on the bed in Josephine's bedroom. Oscar was lying half-way on top of Josephine and half-way on the bed. Also in the bedroom were Josephine's two-year-old son, Arthur, who was standing by the bed, and Brandy. Brandy testified that while she was plugging a portable fan into the wall socket, she heard a loud sound. She then turned and saw Brown standing at the foot of the bed holding a shotgun. She saw Oscar lying on top of Josephine. He had been shot in the back of the head. Josephine yelled for Brandy to get Arthur out of the room. Brandy grabbed Arthur and began dragging him from the room. At that time, Brandy stated that Brown pointed the shotgun at her and Arthur, but he did not shoot.

¶8 The sound of the shotgun awakened Toby, who had been passed out on the couch, and he ran into the room and grabbed at the shotgun. The gun discharged a second time, hitting the ceiling. The evidence conflicts regarding whether Toby or Brown was holding the gun when it discharged a second time. Toby testified that he grabbed the shotgun and told Brown to get out of the house. Toby then ran out of the house carrying the shotgun and threw it down in the front yard. The police found the shotgun several blocks away.

¶9 Albert's statement to the police on the night of the shooting differed from his trial testimony. In his statement to the police, he stated that he ran to Josephine's room, saw Brown facing Toby, saw Brown holding the shotgun, and Oscar lying on top of Josephine. At trial, Albert testified that he ran out of the house without going to Josephine's bedroom.

¶10 Defendant Brown took the stand and testified that he was so intoxicated on the night of the murder that he did not recall anything about the shooting. He testified that he had blackout episodes in the past due to excessive alcohol consumption and had been a heavy drinker since he was fifteen years old--he was nineteen at the time of the murder. He did, however, recall the earlier events of the day; he recalled going to Josephine's house, meeting Oscar, sitting in the living room, and showing the shotgun to Albert. He testified that he had just met Oscar that same night and that he had no reason to kill him. The last thing Brown remembered before the shooting was falling asleep on the couch. The next thing he remembered he was standing in the doorway of Josephine's room. At that point, he recalled hearing screaming but did not know the reason for the screams. He also recalled seeing Toby facing him holding a shotgun. When Toby told him to get out of there, Brown ran. Brown testified that, at that time, he did not know what had happened at Josephine's house or why Toby had told him to leave.

¶11 The State's pathologist testified that Oscar died from a single shot to the back of the head fired from three to six feet away.

¶12 The State sought a first-degree murder conviction based on the theories of deliberate intent murder and depraved mind murder. At the close of the State's case, the trial court directed a verdict on deliberate intent murder, but denied the motion for directed verdict on depraved mind murder, relying on the evidence that Brown fired the gun into a room occupied by several people. Uniform jury instructions were given on second-degree murder and first-degree depraved mind murder, but an instruction on voluntary intoxication submitted by the Defendant was refused.

¶13 The mental state of "subjective knowledge" is an essential element of the offense of first-degree depraved mind murder. We must first examine the elements of depraved mind murder to determine whether a jury may take into consideration evidence of intoxication when determining the existence of the mental state required for the offense. Because New Mexico is one of only a few states that divides unintentional murder based upon risk-creating conduct into two degrees of homicide, first-degree depraved mind murder and second degree murder, our inquiry must necessarily distinguish the elements of depraved mind murder from second-degree murder. See generally Leo M. Romero, Unintentional Homicides Caused By Risk-Creating Conduct: Problems in Distinguishing Between Depraved Mind Murder, Second Degree Murder, Involuntary Manslaughter, and Noncriminal Homicide in New Mexico, 20 N.M.L.Rev. 55 (1990) [hereinafter Romero ]. We note that New Mexico is also one of only a few states to include depraved mind murder within the category of first degree murder, making it a capital felony. See Romero, supra, at 61. Because the consequences for committing first-degree murder are far more serious than those for second-degree murder, it follows that the legislature intended to sufficiently distinguish the offense of first-degree depraved mind murder from second-degree murder. In State v. Garcia, 114 N.M. 269, 272, 837 P.2d 862, 865 (1992), we specifically noted that the distinction between second-degree murder and first-degree murder is of the utmost importance in the administration of New Mexico's criminal justice system.

¶14 Because depraved mind murder involves a higher degree of recklessness, one previously-recognized distinction between the two degrees of homicide is the number of persons subjected to the risk of death. See State v. Sena, 99 N.M. 272, 274, 657 P.2d 128, 130 (1983); State v. DeSantos, 89 N.M. 458, 461, 553 P.2d 1265, 1268 (1976). This factor alone, however, does not constitute the determinative factor in differentiating between first and second-degree murder. See Romero, supra, at 63-65 (discussing the lack of support for the multiple person/single person distinction). While "[t]he number of persons may be a factor in assessing the degree of the risk disregarded, ... it should not be determinative of the degree of murder charged." Romero, supra, at 63. Though the definitions of depraved mind murder and second-degree murder contain similar elements, see State v. Johnson, 103 N.M. 364, 370, 707 P.2d 1174, 1180 (Ct.App.), cert. quashed, 103 N.M. 344, 707 P.2d 552 (1985), a major distinction between the two degrees of murder is based upon the culpable mental states required by the two...