564 P.2d 1321 (N.M. 1977), 10726, State v. Harrison

Docket Nº:10726.
Citation:564 P.2d 1321, 90 N.M. 439, 1977 -NMSC- 038
Opinion Judge:[10] Sosa
Party Name:STATE of New Mexico, Plaintiff-Appellee, v. Franklin HARRISON, Jr., Defendant-Appellant.
Attorney:[6] Pickard & Singleton, Santa Fe, for defendant-appellant. [7] Theodore E. Lauer, Santa Fe, for amicus curiae. [8] Toney Anaya, Atty. Gen., Albert V. Gonzales, Don Montoya, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.
Judge Panel:EASLEY and PAYNE, JJ., concur. McMANUS, C.J., and FEDERICI, J., dissent.
Case Date:May 19, 1977
Court:Supreme Court of New Mexico

Page 1321

564 P.2d 1321 (N.M. 1977)

90 N.M. 439, 1977 -NMSC- 038

STATE of New Mexico, Plaintiff-Appellee,


Franklin HARRISON, Jr., Defendant-Appellant.

No. 10726.

Supreme Court of New Mexico.

May 19, 1977

Rehearing Denied June 8, 1977.

Pickard & Singleton, Santa Fe, for defendant-appellant.

Theodore E. Lauer, Santa Fe, for amicus curiae.

Toney Anaya, Atty. Gen., Albert V. Gonzales, Don Montoya, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.


SOSA, Justice.

Defendant Franklin Harrison, Jr. was indicted for felony murder, kidnapping and rape. The jury convicted him of false imprisonment and felony murder. Defendant was sentenced to one to five years and to death. Defendant appeals from the felony murder conviction and the death sentence.

Page 1322

[90 N.M. 440] The facts pertinent to this appeal are as follows: Defendant and Emmett Cunejo, co-indictee, were driving about in the vicinity of Gallup, New Mexico on May 2, 1975. They had two rifles, a handgun, and ammunition with them to go prairie dog hunting. After having done some shooting and target practicing, at about six in the evening they came upon the victim, Susan Brown, who was walking alongside the highway. They decided to stop and to give her a ride. What happened after this event varies in the statements, deposition, and testimony given. Either Mrs. Brown ran away, was caught and tripped by the defendant, was struck in the mouth, and was dragged back to the car, or she resigned herself to going along with them but tripped and fell to the ground, causing her lips and mouth to bleed. The medical examiner testified that Mrs. Brown had sustained a hard blow to the mouth. They then drove to a remote area known as the Hog's Back near Gallup. Having been told to 'take a walk,' Cunejo left the defendant and Mrs. Brown in the car and practiced shooting with one of the rifles far from the car.

Cunejo returned after some time, picked up a beer and more ammunition, left, returned, got in the back seat, noticed the handgun, and picked it up. He pulled the trigger a few times, thinking the gun was unloaded. A shot went off and Mrs. Brown, who was in the front seat with defendant, slumped in the defendant's lap, the bullet having gone through her head, probably killing her instantly. Defendant and Cunejo panicked. They spent the next few days trying to dispose of the cadaver, getting drunk, and destroying evidence. During a transfer of the cadaver to another place, they ran what appeared to be a road block and hit a car in the process, whereupon they threw the cadaver out of the car. They were arrested shortly thereafter.

On May 10 Emmett Cunejo gave his statement to the police concerning the events of May 2. On May 12 he gave another, differing statement. On August 9 Emmett Cunejo was deposed and he related still another version of the May 2 events. At that deposition Cunejo stated he was coerced and tricked into giving his May 10 and May 12 statements. On October 29 a second deposition was taken of Mr. Cunejo, where he again claimed he was coerced and tricked. While incarcerated, Emmett Cunejo sent a letter to the defendant, which was intercepted. It related another but basically similar to the depositions' version of the events.

Prior to trial, defendant moved for a polygraph examination and requested the State to pay for it. The motion was granted. Defendant failed the polygraph test.

At trial, Emmett Cunejo, who had pled guilty to kidnapping and second-degree murder, testified on behalf of the State. The State then proceeded to impeach his testimony by using his prior statements and the letter, thereby presenting its version of the circumstances leading to Mrs. Brown's death. The State's version was that the defendant sought to force the woman into the car by intimidation (a rifle was sticking out of the car), tripped and punched her when she ran away, that later the defendant had sexual relations with Mrs. Brown against her will, and that finally Cunejo and the defendant killed her to silence her. The medical evidence presented was to the effect that a gunshot wound had caused Mrs. Brown's death, that the other injuries were caused by the cadaver being thrown out of the car, with the exception of some facial injuries which were apparently caused by a forcible blow, that there was no evidence of forcible sexual intercourse, and that the acid phosphatase found in the vagina was consistent with sexual relations three days prior to her death. Mrs. Brown's husband testified that he had intercourse with his wife three days before her death.

Defendant Harrison took the stand and testified to essentially the same story Cunejo had told. The trial court then allowed the State to impeach his testimony on the basis of the failed polygraph examination. At the close of the trial, defendant submitted on his own a jury instruction on [90 N.M. 441]

Page 1323

false imprisonment. The jury returned a verdict of guilty as to felony murder and false imprisonment, but it found the defendant not guilty of rape and kidnapping.

On appeal defendant argues that the felony of false imprisonment cannot be used for a conviction of felony murder and that the testimony of the polygrapher was improperly admitted as evidence.

The English common law origin of felony murder can be traced back to an early, relatively simple idea: any homicide committed during the perpetration or the attempted perpetration of a felony constituted felony murder, and death was the punishment. 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. Section 40A--2--1, N.M.S.A.1953 defines murder as: '(T)he unlawful killing of one human being by another with malice aforethought, either express or implied, by any of the means with which death may be caused.' Section 40A--2--1(A)(3) defines felony murder: 'Murder in the first degree consists of all murder perpetrated: . . . (3) in the commission of or attempt to commit any felony; . . ..' Despite the broad wording of the statute, felony murder has evolved to the point that today various limitations have been placed on it. Depending on the jurisdiction, those limitations, both statutory and judicial, include the following: (1) there must be a causal relationship between the felony and the homicide, (2) the felony must be independent of or collateral to the homicide, and (3) the felony must be inherently or foreseeably dangerous to human life. See Annot., 50 A.L.R.3d 397 (1973);...

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