State v. Campos

• Decision Date: 30 May 1996
• Docket Number: No. 21429,21429
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Tony CAMPOS, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1266

921 P.2d 1266

122 N.M. 148

STATE of New Mexico, Plaintiff-Appellee, v. Tony CAMPOS, Defendant-Appellant.

No. 21429.

Supreme Court of New Mexico.

May 30, 1996.

Rehearing Denied July 24, 1996.

[122 N.M. 150] T. Glenn Ellington, Chief Public Defender, Christopher Bulman, Assistant Appellate Defender, Amme M. Hogan, Assistant Appellate Defender, Santa Fe, for Appellant.

Tom Udall, Attorney General, Joel Jacobsen, Assistant Attorney General, Santa Fe, for Appellee.

OPINION

FROST, Chief Justice.

¶1 Defendant-Appellant Tony Campos appeals his convictions for first-degree criminal sexual penetration (CSP) and first-degree felony murder. He raises three contentions on appeal: (1) that intoxication should serve as a defense to felony murder; (2) that he was denied his constitutional right to confront one of the witnesses; and (3) that his conviction and sentencing for both first-degree CSP and first-degree felony murder violated constitutional protections against double jeopardy. We affirm on the first two issues, reverse on the third, and remand.

I. FACTS

¶2 Campos and his friend Victor Gutierrez began drinking beer on the afternoon of June 12, 1992. Gutierrez was a learning-disabled 24-year-old, who generally was submissive to Campos's more aggressive personality. On the evening of June 12, the two went to the home of Lisa Salcido and her boyfriend, Bernie Baca, and drank whiskey as well as beer. At one point during the late evening, Gutierrez, who could not drive, asked Campos to take him home, but Campos refused and ordered him to continue drinking.

¶3 During the course of the evening, Campos and Gutierrez began engaging in horseplay with sexual overtones. Sometime after 2:00 a.m. the two men went outside, and Campos took off Gutierrez's clothing. They reentered the house and Gutierrez began acting like a dog; someone commented that Gutierrez needed a tail. Salcido and Baca went to bed, leaving Salcido's nephew to sleep in the living room. Campos and Gutierrez went back outside. Gutierrez wanted to go home and began walking naked down the street. He fell down, and Campos helped him up, brought him back to the front yard, and laid him on the ground.

¶4 Campos then went to the front door of Salcido's house and asked Salcido's nephew for a broom. When the nephew refused to get one, Campos walked around the house to the back porch and got a mop. He returned to the front yard, held Gutierrez down, and began thrusting the mop into Gutierrez's anus, handle first. Campos twice thrust nearly the entire length of the mop handle into Gutierrez's anus. He used such force on these two thrusts that on its first path the mop penetrated Gutierrez's intestine, his liver, his diaphragm, and the pericardial sac of his heart. The second thrust penetrated his diaphragm, injured his lung, and ended by bulging the skin near his shoulder. Campos did not withdraw the mop after this second forcible insertion.

¶5 Salcido, who was still inside the house, heard Gutierrez moaning, saying no, and crying out in pain. She then heard Campos laughing and yelling for everyone to "come look at this." Baca looked out the window, saw what Campos had done, and ran next door to call the police. When Campos saw that the police were coming, he got a water hose and began spraying Gutierrez, telling him to get up. When Gutierrez did not get up, Campos ran to the front door and demanded to be let inside. Once inside, he pretended to be asleep on a couch.

¶6 When police officer Mike Mealand arrived, he found Gutierrez lying in the front yard. Officer Mealand noticed a bulge at Gutierrez's left shoulder and then saw the mop protruding from his anus. Officer Mealand tried to rouse Gutierrez, but Gutierrez only responded with a moan. The officer then called for medical personnel and backup. Another officer arrived at the scene, and he and Mealand went to the front door of the house and spoke to Salcido. Salcido told them she did not know Gutierrez and stated that only she and her two children were inside her house. The paramedics then arrived. They determined that Gutierrez was still awake but incoherent. He later died from the internal injuries inflicted by Campos.

¶7 A short time after the paramedics took Gutierrez to the hospital, several officers asked Salcido's permission to enter the house, and she let them in. They found Campos asleep on the couch, arrested him on an outstanding warrant, and took him into custody. After a bench trial the court found Campos guilty of first-degree CSP and first-degree felony murder. Campos now appeals his convictions. We note jurisdiction over this appeal pursuant to SCRA 1986, 12-102(A)(2) (Repl.Pamp.1992).

II. COLLATERAL-FELONY REQUIREMENT

¶8 Campos first argues that the felony-murder doctrine should not have been applied in his case. He contends that the underlying felony of first-degree CSP was not independent of or collateral to the killing and therefore cannot serve as a predicate felony for felony murder. Campos relies on State v. Harrison in which this Court first discussed the collateral-felony doctrine for felony murder. ¹ State v. Harrison, 90 N.M. 439, 442, 564 P.2d 1321, 1324 (1977) (reviewing felony-murder conviction based on false imprisonment followed by a homicide). We noted in Harrison that various jurisdictions have placed limitations on the felony-murder doctrine, including 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." Id. (emphasis added); see also, State v. Pierce, 109 N.M. 596, 601, 788 P.2d 352, 357 (1990) (reaffirming applicability of these limitations in New Mexico). However, Harrison did not address the application of the collateral-felony doctrine. Harrison, 90 N.M. at 441-42, 564 P.2d at 1323-24 (discussing causation and dangerous felony requirements). But see Pierce, 109 N.M. at 601, 788 P.2d at 357 (noting kidnapping preceded and was independent of the subsequent killing).

¶9 The collateral-felony requirement originated in response to concern over the broadening application of the felony-murder doctrine. When the felony-murder doctrine first developed in England, all felonies were punishable by death. See Harrison, 90 N.M. at 441, 564 P.2d at 1323 (discussing history of the doctrine). Therefore, it made little difference if the perpetrator were executed for felony murder or for the predicate felony. Id. However, as legislatures shifted to a graduated system of punishment for differing felonies, the felony-murder doctrine took on a greater significance. The felony-murder doctrine served to relieve prosecutors of the burden of having to prove malice aforethought when the defendant killed someone while committing a felony. 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. People v. Smith, 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886, 891 (1984) (in bank); State v. Lucas, 243 Kan. 462, 759 P.2d 90, 93 (1988), aff'd on reh'g, 244 Kan. 193, 767 P.2d 1308 (1989).

¶10 However, the vast majority of homicides are predicated on an initial felonious assault or battery of some kind. For example, a homicide involving a shooting could be classified as either second-degree murder or felony murder based on an assault with a deadly weapon. Thus, courts realized that in such cases, application of the felony-murder doctrine would allow for conviction of the defendant for murder without the prosecution having to prove the existence of malice. This, in turn, would eliminate the mens-rea requirement for murder in most homicide cases and circumvent the legislative gradation system for classes of homicides. 1 Paul H. Robinson, Criminal Law Defenses § 103(b) (1984). As the California Supreme Court explained:

[T]he utilization of the felony-murder rule in [such circumstances] extends the operation of that rule "beyond any rational function that it is designed to serve." To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault--a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law.

People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580, 590 (1969) (in bank) (citation omitted) (quoting People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, 134 (1965)). Consequently, courts established the limitation that the predicate felony had to be collateral to or independent of the homicide. Harrison, 90 N.M. at 441, 564 P.2d at 1323.

A. Approaches of Different Jurisdictions

¶11 The various jurisdictions have developed differing standards for determining whether the predicate felony is collateral or independent. See generally 1 Robinson, supra, § 103(b) (noting different approaches). Some jurisdictions, such as Kansas, have focused solely on whether the act that caused the homicide was the same as the underlying felonious conduct. See, e.g., State v. Prouse, 244 Kan. 292, 767 P.2d 1308, 1313 (1989). The Kansas Supreme Court explained:

"Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule."

The collateral felony must, therefore, be felonious conduct other than the lethal act itself. Thus, a homicide occurring during the commission of an independent felony, such as aggravated robbery, rape, or kidnapping, comes under the felony-murder statute. However, the lethal act itself cannot serve as the independent collateral felony necessary...