State v. Johnson, 7736

Citation707 P.2d 1174,103 N.M. 364,1985 NMCA 74
Decision Date16 July 1985
Docket NumberNo. 7736,7736
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Gary D. JOHNSON, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

BIVINS, Judge.

On rehearing, the previous opinion is withdrawn and the following is substituted.

The jury found defendant guilty of four counts of attempted first degree depraved mind murder of Ms. Parker, her two children, and a babysitter; two counts of attempted second degree murder of Cauffman and Shannon; and negligent arson. From the judgment and sentences entered on the verdicts, defendant appeals, raising the following three issues:

1. Whether defendant's right to due process was violated when the jury was instructed on negligent arson, although the state's charge against him specified willful and malicious arson.

2. Whether a single act involving multiple victims can give rise to multiple convictions and sentences or whether the bar against double jeopardy prohibits that result.

3. Whether the court's refusal to give defendant's tendered mistake of fact instruction denied defendant's right to present a defense.

Other issues listed in the docketing statement, but not briefed, are abandoned. State v. McGuinty, 97 N.M. 360, 639 P.2d 1214 (Ct.App.1982).

Although not raised below or on appeal, because of probable fundamental or jurisdictional error, this court raised sua sponte the question of whether a crime exists for attempted first degree "depraved mind" murder, for which defendant was convicted of four counts, or, under the facts of this case, for attempted second degree murder, for which defendant was convicted of two counts. NMSA 1978, Sec. 30-2-1(A)(3) and (B) (Repl.Pamp.1984). We requested the parties to brief the issue and, assuming no crime exists, to also brief the questions of whether defendant's convictions for these crimes constitute fundamental or jurisdictional error, and how a holding of no crime would affect our disposition. The parties have filed supplemental briefs in compliance with our direction, and we now hold that no crime exists for attempted depraved mind murder or for attempted second degree murder of Cauffman and Shannon of the unintentional variety. As to the negligent arson conviction, we also reverse. We remand for new trial of the offense of attempted second degree murder of the intentional variety as to all victims, if the trial court determines the evidence so warrants.

FACTS

On May 10, 1983, a fire bomb was thrown into a mobile home occupied by Carolyn Sue Parker, her two children, a live-in babysitter, and two male friends of Ms. Parker, Mr. Cauffman and Mr. Shannon. All were asleep. The occupants managed to extinguish the fire before the fire fighters and police arrived. No one was injured. While talking to the police, Ms. Parker received a telephone call. According to Ms. Parker, the voice, whom she identified as being that of defendant, said, "I missed you this time, bitch, but I'll get you next time."

Defendant, his wife, and Ray Wells, also charged as a result of the incidents, had lived in the Parker mobile home up to a week before the incident, but, according to Ms. Parker, had been "kicked out" for not paying their expenses. Defendant knew that Ms. Parker, her children, and the babysitter would likely be in the mobile home when the fire bomb was thrown, but he did not know that the two male friends would be there.

While the evidence reflected that Ray Wells actually threw the fire bomb, the evidence linked defendant as an accomplice to the act and the jury, by its verdict, found that defendant helped, encouraged, or caused the crimes to be committed.

DISCUSSION
1. The attempted murder convictions.

Under this point, we discuss: (a) whether a crime exists for attempted depraved mind murder, and hold it does not; (b) whether the state in this case can refile on attempted first degree murder of the deliberate variety without violating defendant's right against double jeopardy; (c) whether a crime exists for attempted second degree murder, and hold it does not for the unintentional variety but may for the intentional variety; (d) whether the case can be remanded for new trial of the latter, and as to which victims; and, finally, (e) the authority for raising the issues herein discussed.

(a) To convict for attempted depraved mind murder of the mother, children, and babysitter requires that defendant intended to commit an unintended killing, a logical impossibility.

The crime of attempt to commit a felony "consists of an overt act in furtherance of and with intent to commit a felony and tending but failing to effect its commission." NMSA 1978, Sec. 30-28-1 (Repl.Pamp.1984) (emphasis added); NMSA 1978, UJI Crim. 28.10 (Repl.Pamp.1982). The crime of attempt to commit a felony is a specific intent crime. State v. Grayson 50 N.M. 147, 172 P.2d 1019 (1946); State v. Foster, 87 N.M. 155, 530 P.2d 949 (Ct.App.1974).

In comparison, the underlying crime of depraved mind murder does not require specific intent to kill. Indeed, it expressly excludes a specific intent to kill a specific person. Depraved mind murder "is the killing of one human being * * * by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life." Section 30-2-1(A)(3); NMSA 1978, UJI Crim. 2.05 (Repl.Pamp.1982). Such condemned behavior is required to be extremely dangerous and fatal conduct performed without specific homicidal intent but with a depraved kind of wantonness: for example, shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo. People v. France, 57 A.D.2d 432, 394 N.Y.S.2d 891 (1977). See also Randolph v. State, 83 Wis.2d 630, 266 N.W.2d 334 (1978) (to constitute a depraved mind, more than a high degree of negligence or recklessness must exist). It covers the type of situation in which one acts with outrageous recklessness and that recklessness results in one or more deaths. See State v. Weso, 60 Wis.2d 404, 210 N.W.2d 442 (1973). Even if the perpetrator had no specific intent to kill anyone, he would be guilty of depraved mind murder in the event someone died as a result of his actions, because he acted in a manner greatly dangerous to others. See State v. Sena, 99 N.M. 272, 657 P.2d 128 (1983). The defendant must know his act is greatly dangerous to the lives of others. See State v. Omar-Muhammad, 102 N.M. 274, 694 P.2d 922 (1985); State v. McCrary, 100 N.M. 671, 675 P.2d 120 (1984).

Thus, in order to convict for attempted depraved mind murder the jury would have to find defendant intended to perpetrate an unintentional killing. The impossibility of this result is discussed in Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983), where the court said:

The question squarely presented to us is whether someone can attempt to commit [depraved mind murder]. We think not. A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. * * * [Depraved mind murder] occurs where the killing of the victim is the unintentional result of a criminal act. Thus, an attempt to commit [depraved mind murder] would seem to require proof that a defendant intended to perpetrate an unintentional killing--which is logically impossible. While a person who only intends to commit a felony may be guilty of [depraved mind murder] if a killing results, and a person who only intends to inflict bodily harm may be guilty of [depraved mind murder] if a killing results; it does not follow that those persons would be guilty of attempted murder if a killing did not occur. They would not be guilty of attempted murder because they did not intend to commit murder--they only intended to commit a felony or to commit bodily harm.

LaFave and Scott have explained in their treatise on criminal law why it is necessary to prove an intent to kill in order to sustain a charge of attempted murder:

Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state which need not be an intent to bring about that result. Thus, if A, B, and C have each taken the life of another, A acting with intent to kill, B with an intent to do serious bodily injury, and C with a reckless disregard of human life, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge of attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm or that he acted in reckless disregard for human life. Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about that result described by the crime of murder (i.e., the death of another).

LaFave and Scott, Handbook on Criminal Law, Sec. 59 at 428-29 (1972) (footnotes omitted).

456 A.2d at 177 (emphasis in original). See also People v. Hernandez, 44 Colo.App. 161, 614 P.2d 900 (1980); Merritt v. Commonwealth, 164 Va. 653, 180 S.E. 395 (1935); Thacker v. Commonwealth, 134 Va. 767, 114 S.E. 504 (1922); Smith, Two Problems in Criminal Attempts, 70 Harv.L.Rev. 422 (1957); Smith, Two Problems in Criminal Attempts Re-Examined--I, 1962 Crim.L.Rev. 135; Stuart, Mens Rea, Negligence and Attempts, 1968 Crim.L.Rev. 647.

In New Mexico, specific intent is the intent to do a further act or achieve a further consequence. M. Thompson, Addendum 1. The Lazy Lawyer's Guide to Criminal Intent in New Mexico; NMSA 1978, Judicial Pamphlet 19, at 275 (Repl.Pamp.1982)....

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