State v. Meadors, 22722

CourtSupreme Court of New Mexico
Citation121 N.M. 38,908 P.2d 731,1995 NMSC 73
Docket NumberNo. 22722,22722
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. James T. MEADORS, Defendant-Appellant.
Decision Date06 November 1995

MINZNER, Justice.

James (Johari) Meadors appeals from his convictions for aggravated battery and negligent arson. This case comes to us on certification from the Court of Appeals on the issue of whether aggravated battery is a lesser-included offense of attempted murder. Meadors asserts that the trial court denied him due process by instructing the jury on aggravated battery as a lesser-included offense of attempted murder. In addition, Meadors raises two other constitutional issues. He claims that a Sixth Amendment violation occurred when the trial court restricted counsel from cross-examining the victim regarding certain medical problems that allegedly arose out of the victim's drug use. Finally, Meadors argues that the trial court's sentence imposed multiple punishments for the same offense in violation of the Fifth Amendment's prohibition against double jeopardy. We affirm Meadors' convictions and sentence.

I. Facts

Meadors had been friends with victim Garry Walker for several years prior to May 12, 1993. On that date Meadors became upset when he learned from his wife that she had obtained certain street drugs known as "white crosses" from Walker. After the conversation with his wife in which he learned this information, Meadors walked out of his house and picked up a small cup of gasoline that he had been using earlier in the day to refuel his lawn mower. Taking the cup with him, he got into his vehicle and drove several blocks to Walker's house.

Walker testified at trial that Meadors appeared at his front door as Walker lay on the floor of his living room watching television. After a brief exchange of words, Meadors doused Walker with gasoline, struck a match, and ignited him. On fire and in a panic, Walker ran first to the kitchen and then to a bedroom where a secondary fire broke out in the closet. He eventually managed to extinguish the flames in the shower, but not before he had sustained serious burns over sixty percent of his body. Both Walker and Meadors testified, and their testimony was generally consistent. Meadors testified, however, that he had not intentionally doused Walker with gasoline, but that he had thrown the cup down in anger or disgust, and that the gasoline had inadvertently splashed on Walker. He also testified that he had struck the match in order to protect himself from Walker, who was physically larger than he, and that Walker had walked into the match as he advanced toward Meadors.

II. The Prosecutor's Request for a Jury Instruction on the Lesser-Included Offense of Aggravated Battery

The grand jury returned a three-count indictment charging Meadors with attempted first degree murder, aggravated arson, and negligent use of an explosive. At trial after both parties had rested, the State requested a jury instruction on aggravated battery as a lesser-included offense of attempted first degree murder. Meadors objected on the ground that aggravated battery is not a lesser-included offense of attempted murder and that such an instruction would violate his constitutional right to receive notice of the crime charged.1 See Schmuck v. United States, 489 U.S. 705, 717-18, 109 S.Ct. 1443, 1451-52, 103 L.Ed.2d 734 (1989). On appeal Meadors argues that under State v. Henderson, 116 N.M. 537, 541, 865 P.2d 1181, 1185 (1993), one offense is not a lesser-included offense within another unless all of the statutory elements of the lesser offense are also statutory elements of the greater offense. Aggravated battery includes the statutory elements of an unlawful touching and either the use of a deadly weapon, great bodily harm, or the likelihood of great bodily harm, none of which are statutory elements of attempted murder. Compare NMSA 1978, § 30-3-5 (Repl.Pamp.1994) with NMSA 1978, §§ 30-2-1 & 30-28-1 (Repl.Pamp.1994).

A. Analyzing Lesser-Included Offense Questions

We begin our analysis by recognizing that the issue of whether one criminal offense is a lesser-included2 offense of another arises in at least three different contexts. First, the issue comes up in the context of double jeopardy. The Double Jeopardy Clause prohibits successive prosecutions for two offenses arising out of the same conduct if either one is a lesser-included offense within the other. See Brown v. Ohio, 432 U.S. 161, 165-66, 97 S.Ct. 2221, 2225-26, 53 L.Ed.2d 187 (1977). The second type of situation arises when the defendant requests a jury instruction on a lesser-included offense of the crime charged, and the third situation is that which is presented here: a request by the prosecutor for a jury instruction on a lesser-included offense. Although the latter two categories both fall within the purview of SCRA 1986, 5-611(D) (Repl.Pamp.1992),3 we view these two categories as distinct because different interests are implicated depending upon whether the defendant or the State requests the instruction. See United States v. Whitaker, 447 F.2d 314, 321 (D.C.Cir.1971), overruled by Schmuck, 489 U.S. at 716, 109 S.Ct. at 1450-51. The defendant's constitutional right to notice of the crime against which he must defend is a consideration that arises when, as here, the State requests a jury instruction on a lesser-included offense over the defendant's objection. Notice is not an issue when the defendant makes such a request because the request itself constitutes a waiver of the right to notice. A defendant's request does, however, implicate other constitutional considerations. See generally Edward G. Mascolo, Procedural Due Process and the Lesser-Included Offense Doctrine, 50 Alb.L.Rev. 263, 267-69 (1985) [hereinafter Mascolo]. This Court's opinion in Henderson, 116 N.M. at 541, 865 P.2d at 1185, involved such a request, and we will return to that case later in this discussion.

Courts of different jurisdictions have further complicated this area of the law by developing several different analytical approaches to the question of whether one offense is a lesser-included offense within another. See generally State v. Jeffries, 430 N.W.2d 728, 730-32 (Iowa 1988). We offer brief descriptions of these different theories with the caveat that, although there are three or four basic theories, there is much overlap between them and it is often difficult to classify precisely a particular court's methodology. The most straightforward and least flexible approach is the so-called "strict elements" test. Under this method, a court would find an offense to be a lesser-included offense of another only if the statutory elements of the lesser offense are a sub-set of the statutory elements of the greater offense such that it would be impossible ever to commit the greater offense without also committing the lesser offense. The United States Supreme Court adopted this approach in Schmuck, 489 U.S. at 716, 109 S.Ct. at 1450-51, and New Mexico has embraced a form of the strict elements test, based on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as an aid in determining legislative intent for double jeopardy purposes. See Swafford v. State, 112 N.M. 3, 14, 810 P.2d 1223, 1234 (1991). Another analytical approach is the "indictment" or "pleading" theory, also referred to as the "cognate-pleading" theory, Jeffries, 430 N.W.2d at 731, under which one offense is lesser-included within the offense charged if the allegations of the charging document, when taken as true, would prove all the essential elements of the lesser offense. See United States v. Browner, 937 F.2d 165, 168 (5th Cir.1991) (discussing pleading theory). Other courts have employed what has been referred to as the "inherent relationship" test, which focuses upon the interests to be protected and whether "proof of the lesser offense is necessarily [though not invariably] presented as part of the showing of the commission of the greater offense." Whitaker, 447 F.2d at 319. Another method is the "cognate-evidence" approach, which involves an examination of the statutory elements and the evidence adduced at trial to determine whether, under the facts of the particular case, the lesser offense is sufficiently related to the charged offense to warrant a jury instruction on the former. See Jeffries, 430 N.W.2d at 731. Still another analytical method embodies a hybrid of the cognate-pleadings and cognate-evidence approaches. Under this hybrid method, the court's inquiry focuses upon both the charging instrument and the evidence adduced at trial. See Mascolo, supra, at 276.

B. The DeMary Approach

The parties' arguments in this appeal bear out the confusion that currently exists in this jurisdiction over which method of lesser-included offense analysis is appropriate when the State requests a lesser-included offense instruction. This Court last addressed the issue in State v. DeMary, 99 N.M. 177, 655 P.2d 1021 (1982), in which we said:

For the offense to be necessarily included, the greater offense cannot be committed without also committing the lesser offense. In order to determine whether the [lesser offense] is necessarily included in the greater offense ..., the specific [statutory] elements of [the greater and lesser offense] must initially be construed in light of the evidence. The particular facts of each case must then be reviewed in light of the specific elements of each crime. When the evidence justifies the instructions, the proof of such particular circumstances will be determined by a jury.

Id. at 179, 655 P.2d at 1023 (citations omitted). Meadors argues on appeal that with this language the DeMary Court embraced the strict elements approach. Meadors buttresses his argument by pointing out...

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