Campos v. Bravo

• Decision Date: 05 April 2007
• Docket Number: No. 29,752.,29,752.
• Citation: 161 P.3d 846
• Parties: Jerrold CAMPOS, Petitioner, v. Erasmo BRAVO, Warden, Respondent.
• Court: New Mexico Supreme Court

161 P.3d 846

Jerrold CAMPOS, Petitioner, v. Erasmo BRAVO, Warden, Respondent.

No. 29,752.

Supreme Court of New Mexico.

April 5, 2007.

Rehearing Denied May 10, 2007.

Gary C. Mitchell, P.C., Timothy Lee Rose, Ruidoso, NM, for Petitioner.

Gary K. King, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

CHÁVEZ, Chief Justice.

{1} Asserting that it is unknown whether the jury used a lesser-included offense of second-degree murder as the predicate felony to support his conviction, Petitioner Jerrold Campos seeks a writ of habeas corpus to set aside his felony-murder conviction under the collateral-felony doctrine. At Campos's trial, the jury was instructed to consider either aggravated battery or aggravated burglary as the predicate felony. It is settled law in New Mexico that aggravated battery cannot be used as a predicate felony to felony murder. When it returned its verdict finding Campos guilty of felony murder, the jury did not indicate which predicate felony it used to convict Campos. Because Campos did not preserve the issue and raise it on direct appeal, we review the issue for fundamental error. We conclude that it was error for aggravated battery to be used as one of the two alternative predicates for felony murder and that the error was per se fundamental. Therefore, we reverse the district court's denial of a writ of habeas corpus.

I. BACKGROUND

{2} In 1999, Campos was convicted of felony murder for the killing of Kendrick Rudolph, two counts of intimidation of a witness, and several misdemeanor crimes. For the felony-murder conviction, the State relied on the predicate felonies of aggravated battery with a deadly weapon and, alternatively, aggravated burglary. The verdict form returned by the jury finding Campos guilty of murder did not identify which predicate the jury used. Campos's convictions were appealed directly to this Court and we affirmed in an unpublished decision. State v. Campos, No. 25,715, slip op. ¶ 2 (N.M. Mar. 5, 2001). Over three years later, Campos petitioned the Fifth Judicial District Court for a writ of habeas corpus, amending his petition a couple of weeks thereafter. In his amended petition, Campos asserted that his conviction of felony murder must be vacated because it violates the collateral-felony doctrine. In response, the State argued that Campos could not raise this issue on habeas because he could have raised it on appeal, but did not. The district court held a hearing on December 14, 2004.

{3} At the hearing, Campos's habeas counsel asserted that all involved at every level either missed or were silent about the fact that New Mexico's collateral-felony doctrine clearly precludes aggravated battery from being used as a predicate for felony murder.¹ See State v. Campos, 1996-NMSC-043, ¶ 23, 122 N.M. 148, 921 P.2d 1266 (precluding all forms of aggravated battery and aggravated assault from being used as predicates to felony murder). Relying on State v. Crain, 1997-NMCA-101, 124 N.M. 84, 946 P.2d 1095, counsel also suggested that, in this case, use of aggravated burglary violated the collateral-felony doctrine since Campos's underlying assaultive conduct was the sole basis for the aggravated burglary instruction. See NMSA 1978, § 30-16-4(C) (1963) (providing for aggravated burglary when, without authorization, a person enters a structure with the intent to commit a felony therein and commits a battery upon a person while inside or upon entering or leaving). Finally, Campos's habeas counsel asserted that even if aggravated burglary was a legitimate predicate, Campos's conviction must be vacated because there is no way to know which predicate the jury used and at least one is certainly invalid.

{4} After holding a hearing, the district court entered a "decision" on January 11, 2005, stating: "The Court finds the State's position is correct in this matter and does not feel it necessary to restate that position and denies the Writ." A final order denying relief was not entered until March 20, 2006, over a year later. Soon thereafter, Campos petitioned this Court for a writ of certiorari, which we granted. See Rule 5-802(H)(2) NMRA.

II. A HABEAS PETITIONER MAY ASSERT A CLAIM IF THERE IS FUNDAMENTAL ERROR EVEN IF THE ISSUE COULD HAVE BEEN RAISED ON APPEAL

{5} We first address the State's argument that Campos is precluded from raising this issue in a habeas petition. The purpose of the writ of habeas corpus is to protect a person from being erroneously deprived of his or her rights. Clark v. Tansy, 118 N.M. 486, 490, 882 P.2d 527, 531 (1994). Thus, rarely are principles of finality applied with the same force in habeas proceedings as they are in ordinary litigation. Id. In the words of the United States Supreme Court, "[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged." Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); see also Sobota v. Cox, 355 F.2d 368, 369 (10th Cir.1966) (per curiam) ("A fundamental principle of law in [habeas corpus proceedings] is that the rule of res judicata does not apply.").

{6} At the district court level, the State asserted that Campos was precluded from raising this issue now because he did not raise it on direct appeal. In its briefing to this Court, however, the State appears to contend that the issue was raised on direct appeal, but denied and, therefore, cannot be relitigated. Although both assert Campos cannot raise his claim in a habeas petition, our review under each theory is distinct.

{7} When the State asserts that a habeas petitioner's claim is barred because the same claim was already addressed on appeal, but was denied, the habeas claim is not barred if it "is grounded in facts beyond the record previously presented on appeal, and if the additional facts are those which could not, or customarily would not, be developed in a trial on criminal charges." Duncan v. Kerby, 115 N.M. 344, 346, 851 P.2d 466, 468 (1993) (quoted authority omitted). When the State asserts that a habeas petitioner's claim is barred because the petitioner failed to raise the issue on appeal, a different rule applies. "A habeas corpus petitioner will not be precluded ... from raising issues ... that could have been raised on direct appeal either when fundamental error has occurred, or when an adequate record to address the claim properly was not available on direct appeal." Id. (citation omitted).

{8} After reviewing the briefs in Campos's direct appeal and our resulting decision, we conclude that Campos never raised the collateral-felony issue on appeal. See Garcia v. Mora Painting & Decorating, 112 N.M. 596, 601, 817 P.2d 1238, 1243 (Ct.App.1991) (taking judicial notice of briefs filed in another case). Regarding the use of different predicate felonies in support of his felony-murder conviction, the thrust of Campos's argument on appeal was that he did not receive sufficient notice of the predicates to be used because he was not actually charged with those crimes. Nowhere in his brief-in-chief, nor in his reply brief, did Campos assert that his felony-murder conviction violated the collateral-felony doctrine. As a result, on the issue of the predicate felonies used to support his conviction of felony murder, our decision only addressed whether Campos received sufficient notice. Campos, No. 25,715, slip op. at 3-4. Because Campos never raised this issue on appeal and because the record on appeal was clearly adequate to address Campos's current claim, we determine only whether Campos's conviction constitutes fundamental error. In conducting such a review, we first determine if error occurred; if so, we next determine whether that error was fundamental. See State v. Barber, 2004-NMSC-019, ¶ 13, 135 N.M. 621, 92 P.3d 633.

III. ERROR OCCURRED AT CAMPOS'S TRIAL BECAUSE THE AGGRAVATED-BATTERY ALTERNATIVE WAS LEGALLY INADEQUATE UNDER THE COLLATERAL-FELONY DOCTRINE

A. Using Aggravated Battery as the Predicate to Felony Murder Violated the Collateral-Felony Doctrine

{9} In New Mexico, our felony-murder statute serves to elevate second-degree murder to first degree when the murder occurs during the commission of a dangerous felony. See State v. Ortega, 112 N.M. 554, 563, 817 P.2d 1196, 1205 (1991). In concert with the general trend in America of limiting its reach, New Mexico has placed five limitations on felony murder. See State v. O'Kelly, 2004-NMCA-013, ¶¶ 22-24, 135 N.M. 40, 84 P.3d 88. One of the limitations is the collateral-felony doctrine, which precludes the State from using a lesser-included offense of second-degree murder as the predicate to felony murder. Id. ¶ 24 (citing Campos, 1996-NMSC-043, ¶ 19, 122 N.M. 148, 921 P.2d 1266).

{10} The collateral-felony doctrine derived from our concern "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" felony murder. Campos, 1996-NMSC-043, ¶ 19, 122 N.M. 148, 921 P.2d 1266. Thus, the doctrine requires the predicate felony to be collateral to the murder, which, in turn, precludes the State from using a lesser-included offense of second-degree murder as a predicate felony. See id. ¶¶ 10, 19. Moreover, applying the strict-elements test "in the abstract," see State v. Vallejos, 2000-NMCA-075, ¶ 13, 129 N.M. 424, 9 P.3d 668, it is clearly not possible to commit second-degree murder without also committing some form of aggravated assault or aggravated battery. Thus, aggravated assault and aggravated battery may never be used as predicate felonies to felony murder even though some statutory elements of those two crimes differ from second-degree murder. Campos, 1996-NMSC-043, ¶ 23, 122 N.M. 148, 921 P.2d 1266. Ultimately, the doctrine's purpose "is to further the legislative intent of holding...