State v. Frazier, 29,138.

CourtSupreme Court of New Mexico
Citation164 P.3d 1,2007 NMSC 032
Docket NumberNo. 29,138.,29,138.
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Jarrell FRAZIER, Defendant-Appellant.
Decision Date11 May 2007
164 P.3d 1
2007 NMSC 032
STATE of New Mexico, Plaintiff-Appellee,
Jarrell FRAZIER, Defendant-Appellant.
No. 29,138.
Supreme Court of New Mexico.
May 11, 2007.
Rehearing Denied June 25, 2007.

[164 P.3d 2]

Liane E. Kerr, LLC, Liane E. Kerr, Albuquerque, NM, for Appellant.

Gary K. King, Attorney General, Anita Carlson, Assistant Attorney General, Santa Fe, NM, for Appellee.


BOSSON, Justice.

{1} This appeal continues our historically close scrutiny of the New Mexico felony murder statute. See State v. Contreras, 120 N.M. 486, 903 P.2d 228 (1995); State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991); State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977). In Contreras, we held that double jeopardy principles prohibit convicting a defendant of both felony murder and the predicate felony on which the felony murder is based, at least not when the underlying conduct is unitary. 120 N.M. at 491, 903 P.2d at 233. Today we inquire, for the first time, whether the murder and the predicate felony are actually greater and lesser included offenses in every case, one subsumed within the other, which thereby precludes multiple, separate convictions according to how the legislature has defined the particular offense of felony murder. Concluding that the legislature has thus spoken, we hold that the predicate felony is always subsumed into a felony murder conviction, and no defendant can be convicted of both. Accordingly, we reverse the conviction for the predicate offense of kidnapping. We affirm all other convictions.


{2} In the early morning hours of April 14, 2002, Defendant Jarrell Frazier ("Frazier"), along with his co-defendant Davis Wilson ("Wilson"), brutally beat Kelly Knoll ("Knoll") in front of a truck on a residential street in the Kirtland Addition neighborhood of Albuquerque. After beating Knoll, Frazier and Wilson wiped down the truck with rags, placed Knoll in the back of the truck, and kicked him yet again. Knoll was then driven about a mile away and shot five times in the back of the truck by either Frazier or Wilson. The cause of Knoll's death was gunshot wounds to his head and chest.

{3} Officer Vigil responded to a call from a neighbor. Arriving at the scene shortly after the truck had left, Officer Vigil heard several gunshots coming from the south of his location. The next day Knoll was found dead in the back of the truck about a mile southeast from where the beating occurred.

{4} A jury convicted Frazier of kidnapping, felony murder predicated on that same kidnapping, conspiracy to commit kidnapping, aggravated battery with great bodily harm, conspiracy to commit aggravated battery with great bodily harm, two counts of tampering with evidence, and conspiracy to commit tampering with evidence. Frazier was acquitted of first-degree willful and deliberate murder and conspiracy to commit felony murder. The trial court sentenced Frazier consecutively to life imprisonment for felony murder and twelve years imprisonment for kidnapping.

{5} Frazier now appeals directly to this Court, raising two issues. See N.M. Const. art VI, § 2; Rule 12-102(A)(1) NMRA (direct appeal to Supreme Court from conviction of first-degree murder). First, Frazier argues that his right to be free from double jeopardy was violated when he was convicted of both felony murder and kidnapping, the very predicate felony on which the murder conviction was based. Second, Frazier claims that the trial court erred when it allowed the State to introduce certain fingerprint evidence. Because we conclude that Frazier's separate conviction of kidnapping violates the Double Jeopardy Clause of the United States Constitution, we vacate that conviction. We affirm Frazier's remaining convictions because his argument regarding

164 P.3d 3

the admission of the fingerprint evidence was not properly preserved.


{6} Before we embark on a construction of our felony murder statute as it pertains to the double jeopardy issue, we first briefly survey New Mexico's felony murder case law.

{7} New Mexico courts have often commented on the general disfavor with which the felony murder rule is viewed. As this Court noted in Ortega, "[f]ew legal doctrines have been as maligned and yet have shown as great a resiliency as the felony-murder rule." 112 N.M. at 559, 817 P.2d at 1201(quoted authority omitted); see also Model Penal Code § 210.1 cmt. 1, at 5-6 (Official Draft and Revised Comments 1962) (explaining that the Model Penal Code abandons the felony murder doctrine as an independent basis for establishing liability for criminal homicide). Proceeding from this premise, our cases have read into the felony murder statute several limitations on its use.

{8} In Harrison, we held that only a first-degree felony or an inherently dangerous felony committed under inherently dangerous circumstances could support a felony murder charge. 90 N.M. at 442, 564 P.2d at 1324. Subsequently, in Ortega, we held that felony murder has a mens rea element, "which cannot be presumed simply from the commission or attempted commission of a felony." 112 N.M. at 561, 817 P.2d at 1203. Therefore, in order to convict a defendant of felony murder, the State must prove that the defendant had a culpable state of mind sufficient to support a conviction for second-degree murder; the mental state required for the underlying felony is not sufficient. Id. at 563, 817 P.2d at 1205. Ortega even went so far as to suggest that, absent a construction of the felony murder statute to include this enhanced intent, the statute might be subject to constitutional attack by establishing a presumption of mens rea in violation of due process. Id. at 562-63, 817 P.2d at 1204-05.

{9} After construing the felony murder statute to include an intent requirement, we observed in Ortega that the legislature had legitimately "determined that a killing in the commission or attempted commission of a felony is deserving of more serious punishment than other killings in which the killer's mental state might be similar but the circumstances of the killing are not as grave." Id. at 565, 817 P.2d at 1207. Our felony murder statute thus serves to elevate to first-degree murder what would otherwise be a second-degree murder based on the rationale that a killing in which the killer's mental state is consistent with second-degree murder, but which is done in the commission of a dangerous felony, deserves punishment equal to that of first-degree premeditated or depraved-mind murder. See id.

{10} We observe a paradox. A defendant who is convicted of and sentenced for both the felony murder and the underlying felony does not receive a punishment equal to that for first-degree premeditated murder; he actually receives a greater punishment. He is convicted of both first-degree murder and the underlying predicate felony and can be sentenced consecutively for both. Thus, if the State proves that a defendant killed with a mental state sufficient only for second-degree murder, but in the course of a dangerous felony, that defendant will receive a greater punishment than a defendant who is shown to have killed with a more culpable mental state such as deliberate intent murder. In the absence of any more specific elaboration by the legislature, such an outcome appears arbitrary.

{11} We question whether the legislature intended such a result when, as we will discuss shortly, (1) the legislature never expresses an intent that both convictions should stand and be sentenced consecutively, and (2) the indicia of legislative intent we discuss below demonstrates the contrary conclusion: that the predicate felony is subsumed within the conviction for felony murder. This problematic result, along with the narrow construction we have previously given to our felony murder statute, informs our analysis of double jeopardy issues in the context of felony murder.


{12} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person

164 P.3d 4

be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V; see also N.M. Const. art. II, § 15 (providing for double-jeopardy protection). The clause is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), overruling Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937).

{13} Among other things, the Double Jeopardy Clause protects a defendant from twice being punished at one trial for the "same offense" (multiple punishments). See Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); State v. Lynch, 2003-NMSC-020, ¶ 9, 134 N.M. 139, 74 P.3d 73. Multiple punishment has two prongs. First are the "unit-of-prosecution" cases where the defendant is "charged with multiple violations of a single statute based on a single course of conduct." Swafford v. State, 112 N.M. 3, 8, 810 P.2d 1223, 1228 (1991). Second are the "double-description" cases where "the defendant is charged with violations of multiple statutes that may or may not be deemed the same offense for double jeopardy purposes." Id. Frazier argues that he was improperly convicted under two separate statutes for the same offense, the felony murder statute and the kidnapping statute, and therefore we analyze this as a double-description case.

The Swafford Test

{14} Swafford is the leading New Mexico case on the double-description analysis. In that opinion, this Court addressed whether Swafford's convictions and sentence for both incest and criminal sexual penetration arising out of the same conduct constituted double jeopardy. Id. at 6, 810 P.2d at 1226. In holding there was no double jeopardy violation, this Court synthesized the many varied theories set forth in both New Mexico and federal decisional law to come up with a...

To continue reading

Request your trial
87 cases
  • State v. Serrato
    • United States
    • Court of Appeals of New Mexico
    • February 17, 2020
    ...multiple punishment cases, we look first to the language of the statutes at issue." State v. Frazier , 2007-NMSC-032, ¶ 21, 142 N.M. 120, 164 P.3d 1. Section 30-4-1(B) governs whether a kidnapping conviction is a first or second-degree felony. It states:Whoever commits kidnapping is guilty ......
  • State v. Benally
    • United States
    • Supreme Court of New Mexico
    • May 20, 2021
    ...courts have found dispositive in distinguishing the relevant criminal acts); State v. Frazier , 2007-NMSC-032, ¶¶ 66-68 n.4, 142 N.M. 120, 164 P.3d 1 (Chávez, J., specially concurring) ("[W]hether the conduct underlying each charged offense—even if [each violates] the same statute, and thus......
  • State v. Wood
    • United States
    • Court of Appeals of New Mexico
    • December 6, 2021
    ...¶¶ 25-26, 148 N.M. 381, 237 P.3d 683. The Kersey Court—faced with the question of whether State v. Frazier , 2007-NMSC-032, 142 N.M. 120, 164 P.3d 1, should apply retroactively to habeas corpus proceedings—clarified that Teague modified the "approach to retroactivity for cases on collateral......
  • Morga v. Fedex Ground Package Sys., Inc.
    • United States
    • Supreme Court of New Mexico
    • May 19, 2022
    ...admission of autopsy photographs of a child victim), abrogated on other grounds by State v. Frazier , 2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 P.3d 1. Because the photograph here was not obviously graphic and the district court limited the jury's ability to review it, we conclude upon de novo ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT