State v. Dowling

• Decision Date: 12 April 2011
• Docket Number: No. 31,105.,31,105.
• Parties: STATE of New Mexico, Plaintiff–Appellee,v.Jeremiah Kenneth DOWLING, Defendant–Appellant.
• Court: New Mexico Supreme Court

150 N.M. 110

257 P.3d 930

2011 -NMSC- 016

STATE of New Mexico, Plaintiff–Appellee,

v.Jeremiah Kenneth DOWLING, Defendant–Appellant.

No. 31,105.

Supreme Court of New Mexico.

April 12, 2011.

Hugh W. Dangler, Chief Public Defender, Vicki W. Zelle, Assistant Appellate Defender, Santa Fe, NM, for Appellant.Gary K. King, Attorney General, M. Victoria Wilson, Assistant Attorney General, Santa Fe, NM, for Appellee.

OPINION

CHÁVEZ, Justice.

{1} In this case, we revisit depraved mind murder involving a motorist. Over the course of seven-tenths of a mile, the 18–year–old Defendant drove his truck at speeds estimated to approach 80 miles per hour on a four-lane suburban street during the middle of a weekday, striking and injuring a jogger on the street's raised median, then driving onto a sidewalk and striking and killing a second pedestrian; all the while speeding and weaving in and out of traffic, including into oncoming traffic, until crossing all four lanes of the street and ultimately crashing into a boulder on the raised median. Because the jury found that Defendant struck the first pedestrian with the intent to injure her, it found him guilty of aggravated battery with a deadly weapon, contrary to NMSA 1978, Section 30–3–5 (1969). Defendant was also convicted of first degree depraved mind murder, contrary to NMSA 1978, Section 30–2–1(A)(3) (1994); leaving the scene of an accident not resulting in great bodily harm, contrary to NMSA 1978, Section 66–7–201(D) (1989); knowingly leaving the scene of an accident resulting in great bodily harm, contrary to Section 66–7–201(C); reckless driving, contrary to NMSA 1978, Section 66–8–113 (1987); and escape or attempt to escape from jail, contrary to NMSA 1978, Section 30–22–8 (1963).

{2} There is only one prior New Mexico case that addresses depraved mind murder in the context of a homicide caused by a motorist. State v. Ibn Omar–Muhammad, 102 N.M. 274, 278, 694 P.2d 922, 926 (1985), holding modified on other grounds by State v. Cleve, 1999–NMSC–017, ¶ 27, 127 N.M. 240, 980 P.2d 23. In Omar–Muhammad we made it clear that mere reckless driving is insufficient to support a depraved mind murder conviction. Instead, extremely reckless conduct evidencing indifference for the value of human life is required. In this case, we must decide whether the jury was properly instructed and whether Defendant's driving behavior constitutes sufficient evidence to support a depraved mind murder conviction. We conclude (1) that the jury was improperly instructed by the trial court to consider only reckless and not “extremely reckless” driving, and (2) that double jeopardy does not bar Defendant's retrial because sufficient evidence supports the jury verdict.

{3} Our conclusions in this case should not be construed by prosecutors as a broad license to bring depraved mind murder charges whenever the State seeks to convict a motorist for homicide. As we set forth in the body of this Opinion, this case involves extraordinary facts that permit the rare inference of a depraved mind in the context of a vehicular killing. As we have made clear in the past and reiterate here, the depraved mind doctrine is to be applied sparingly, regardless of the circumstances. However, this admonition is especially resonant where the lethal instrumentality is an automobile and the jury is provided only circumstantial evidence from which to infer the presence of a depraved mind.

I. BACKGROUND

{4} During the middle of the day, Defendant was driving a truck southbound on a four-lane roadway divided by a raised dirt-filled median surrounded by concrete curbing. Witnesses saw Defendant drive up onto the median and accelerate straight toward a jogger, striking her with the truck's large exterior mirror. After striking the jogger, Defendant continued driving southbound for approximately seven-tenths of a mile at speeds estimated to be more than twice the posted speed limit of 35 miles per hour. At one point Defendant was observed driving up onto the median to pass vehicles occupying both southbound lanes. On at least two other occasions, Defendant drove over the raised median into oncoming northbound traffic and then crossed the median back onto the southbound lanes, almost colliding with other motorists on both sides of the median. In addition to weaving between the north and southbound lanes of the road, Defendant crossed the two southbound lanes, climbed the sidewalk to the west, and struck a pedestrian with such force that “almost all” of the victim's internal organs were severely injured, causing numerous fractures including a broken neck, and resulting in victim's brain being dislodged from her skull. She died at the scene.

{5} Defendant continued driving recklessly and crossed the raised median one more time, once again driving the wrong way in the northbound lanes. Defendant then swerved out of the path of an oncoming car, narrowly avoiding a collision, and crashed into a boulder on the median between the north and southbound lanes. His truck disabled, Defendant fled on foot and was later captured about one mile away. Further facts will be developed as needed in the body of this Opinion.

{6} Defendant appeals only his conviction for depraved mind murder.¹ In the table of contents of his brief in chief, Defendant raises one main issue: whether sufficient evidence supports the depraved mind murder conviction. However, in stealth fashion, Defendant also raises two other issues in the body of the brief: (1) whether the trial court erred in its instruction to the jury on depraved mind murder because “[t]he given jury instructions did not clearly explain that to convict of first degree depraved mind murder there must be much more than simply establishing that reckless conduct caused the death of a person,” and (2) whether three isolated statements made by the prosecution improperly inflamed the jury's passions, thereby encouraging them to convict Defendant of depraved mind murder instead of vehicular homicide.

{7} With respect to the sufficiency of the evidence challenge, we interpret Defendant's brief to ask us to review whether a rational jury could find the following three elements of depraved mind murder: (1) whether Defendant had “subjective knowledge that his [driving] was greatly dangerous to the lives of others,” State v. Reed, 2005–NMSC–031, ¶ 23, 138 N.M. 365, 120 P.3d 447 (internal quotation marks and citation omitted); (2) whether Defendant's driving was “dangerous to more than one person,” id. ¶ 22; and (3) whether Defendant's driving indicated “a depraved mind without regard for human life.” UJI 14–203 NMRA. After viewing the evidence in the light most favorable to the prosecution, we conclude as a matter of law that any rational juror as instructed could have found the essential elements of the crime beyond a reasonable doubt. See State v. Rosaire, 1996–NMCA–115, ¶ 21, 123 N.M. 250, 939 P.2d 597. However, we also conclude that the jury in this case was not properly instructed because the given instruction incorrectly stated that a finding of mere reckless driving was adequate to find Defendant guilty of depraved mind murder. Accordingly, we reverse and remand this matter for a new trial on the depraved mind murder charge. Because of our holding, we do not address the three isolated remarks made by the prosecution to which Defendant made no objection.

II. DEPRAVED MIND MURDER IN NEW MEXICO

{8} New Mexico law defines “depraved mind murder” as an unintentional first degree killing caused “by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.” Section 30–2–1(A)(3). First degree murder is a capital felony. Id. Accordingly, a defendant convicted of first degree murder is subject to a mandatory term of life imprisonment. NMSA 1978, § 31–18–14 (1993).

{9} New Mexico is one of only three states to classify depraved mind murder in the first degree. Other jurisdictions typically classify depraved mind killings in the second degree, reserving the first degree designation for killings characterized by some indicia of premeditation and deliberation. See 2 Wayne R. LaFave & David C. Baum, Substantive Criminal Law § 14.7 (2d ed. 2003); see also State v. Lacquey, 117 Ariz. 231, 571 P.2d 1027, 1030 (1977) (in banc) (“That this crime was brutal there can be no doubt, but brutality alone cannot, in itself, support a finding of premeditation and deliberation.”). Only Colorado and Washington join New Mexico in classifying depraved mind killings in the first degree. Colo.Rev.Stat. § 18–3–102(1)(d) (2000); Wash. Rev.Code § 9A.32.030(1)(b) (1990). Because first degree murder is subject to our most serious criminal sanction, we have repeatedly emphasized the importance of ensuring that only the most “heinous and reprehensible” killings fall under the depraved mind category. See State v. Garcia, 114 N.M. 269, 272, 837 P.2d 862, 865 (1992); see also Reed, 2005–NMSC–031, ¶ 17, 138 N.M. 365, 120 P.3d 447; State v. Brown, 1996–NMSC–073, ¶ 15, 122 N.M. 724, 931 P.2d 69.

{10} To that end, this Court has recognized a number of elements to be considered in appraising whether a defendant has displayed the requisite depraved mind pursuant to Section 30–2–1(A)(3). Reed, 2005–NMSC–031, ¶¶ 22–24, 138 N.M. 365, 120 P.3d 447. Our development of these criteria is directed by the plain language of the statute and the recognition that the Legislature intends only the most reprehensible unintentional homicides to be classified in the first degree, clearly distinct from homicides that warrant punishment as second degree murder. Reed, 2005–NMSC–031, ¶¶ 17, 36, 138 N.M. 365, 120 P.3d 447; Brown, 1996–NMSC–073, ¶ 13, 122 N.M. 724, 931 P.2d 69. Thus, we have developed these elements for the express purpose of limiting the application of depraved mind murder to only those rare unintentional murders that warrant the first degree murder punishment. See Reed, 2005–NMSC–031, ¶¶ 24, 25, 138...