State v. Omar-Muhammad

• Decision Date: 13 May 1987
• Docket Number: No. 16026,OMAR-MUHAMMAD,16026
• Citation: 1987 NMSC 43,105 N.M. 788,737 P.2d 1165
• Parties: STATE of New Mexico Plaintiff-Appellee, v. Ibn, aka Khayree Omar-Muhammad, aka Loren Jerome Fugett, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1165

737 P.2d 1165

105 N.M. 788

STATE of New Mexico Plaintiff-Appellee, v. Ibn OMAR-MUHAMMAD, aka Khayree Omar-Muhammad, aka Loren Jerome Fugett, Defendant-Appellant.

No. 16026.

Supreme Court of New Mexico.

May 13, 1987.

[105 NM 789] Jacquelyn Robins, Chief Public Defender, Kathryn Hormby, Asst. Appellate Defender Santa Fe, for defendant-appellant.

Hal Stratton, Atty. Gen., Anthony Tupler, Asst. Atty Gen., Santa Fe, for plaintiff-appellee.

OPINION

STOWERS, Justice.

Ibn Omar-Muhammad (defendant) appeals from his second conviction of first degree depraved mind murder, pursuant to NMSA 1978, Subsection 30-2-1(A)(3) (Repl.Pamp.1984), for the death of Allen Gates Cross, a bystander killed when defendant drove through a police roadblock at a speed of approximately 100 miles per hour. Initially, defendant was tried by a jury and convicted of depraved mind murder and three counts of aggravated assault on a police officer. He appealed from the murder conviction, for which he was sentenced to life imprisonment, and this Court reversed, holding that the jury had been instructed improperly on the elements of depraved mind murder. See State v. Omar-Muhammad, 102 N.M. 274, 694 P.2d 922 (1985) (Omar-Muhammad I ).

Upon remand for a new trial on the murder count, defendant again was tried by a jury, convicted of first degree depraved mind murder, and sentenced to life imprisonment. He appeals from this judgment and sentence. We reverse and remand to the district court for a new trial.

This case presents the following issues:

(1) Did the district court commit reversible error when it refused to instruct the jury on homicide by vehicle by reckless driving, pursuant to NMSA 1978, Section 66-8-101 (Cum.Supp.1986) and NMSA 1978, Section 66-8-113, as a lesser included offense of depraved mind murder?

(2) Did the district court commit reversible error when it refused to instruct the jury on homicide by vehicle while under the influence of drugs, pursuant to NMSA 1978, Section 66-8-101 (Cum.Supp.1986), as a lesser included offense of depraved mind murder?

(3) Did the district court commit reversible error when it admitted, for purposes of impeachment, defendant's in-custody statement to police obtained in violation of the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)?

(4) Did the district court commit reversible error when it allowed cross-examination of defendant regarding his unauthorized departure from a Colorado juvenile detention facility six weeks before the incident for which defendant was tried?

(5) Was defendant denied a fair trial by statements in the prosecutor's closing argument describing defendant's acts in terms not identical to those of the jury instructions given by the district court?

We conclude that the district court should have instructed the jury on the lesser included offenses of vehicular homicide by reckless driving and vehicular homicide while under the influence of drugs. We therefore reverse the district court's judgment and sentence and remand this case for a new trial. Because similar evidentiary questions will arise on retrial, we also consider the other issues raised by this appeal, discussing each of defendant's contentions separately.

I. Failure to Instruct on Vehicular Homicide by Reckless Driving.

The facts of this case were described in detail in our Omar-Muhammad I opinion. The evening before Allen Gates Cross's death occurred on a two-lane state highway north of Clovis, New Mexico, the seventeen-year-old defendant accepted an offer to drive with a stranger, one Mr. Griffin, from his hometown of Oklahoma City, Oklahoma, to California. They left Oklahoma City in Mr. Griffin's red Mercedes between 11 and 12 o'clock the night of September 29, 1983.

Mr. Griffin drove from Oklahoma City to Amarillo, Texas, where he and defendant stopped and slept in the Mercedes for a couple of hours. Setting out again on Interstate 40 shortly after dawn, defendant drove from Amarillo to San Jon, New Mexico. As they drove, they shared a number of marijuana cigarettes. While Mr. Griffin was in a gas station restroom in San Jon, defendant took the car and headed southward.

Driving at sixty-five or seventy miles per hour, defendant first encountered a police vehicle some fourteen miles north of Clovis. He sped away at approximately 100 miles per hour, eluding the officers' attempt to chase him. They radioed ahead, and another officer set up a roadblock by parking his marked vehicle, with emergency lights blinking, in one lane of traffic, and positioning himself, with a gun, in the open lane. As he approached the roadblock, defendant neither stopped nor steered around the officer. He laid his head down on the seat and drove through the open lane of the roadblock, forcing the officer to get out of the way of the Mercedes. Continuing southward at a high rate of speed, defendant pulled into the northbound lane to pass a truck and remained in that lane until he forced a northbound police vehicle off the road. The officer driving that vehicle turned around and, with siren and emergency lights on, pursued defendant.

Further down the road, two police officers set up a two-car roadblock and positioned themselves on the pavement outside their vehicles. Defendant passed the vehicle immediately ahead of his and drove through this roadblock, again with his head on the seat, at approximately 100 miles per hour. When he cleared the roadblock, defendant was aware that he had hit one of the police cars and that his left front tire was damaged. Defendant did not try to stop his vehicle and was unable to control its swerving. The Mercedes hit a stationary hay truck, flew over an embankment into a field, and hit Cross and his motorcycle, killing the young man. The Mercedes continued across the field. When it finally came to rest, defendant emerged and attempted unsuccessfully to run away from the police.

Defendant testified that he did not see the young man or his motorcycle and that he did not know he had struck and killed Cross until he was apprehended by angered police officers. He asserted that he failed to see one of the police vehicles pursuing him, and the lights and markings on the others, because he was not wearing his eyeglasses. He claimed that he attempted to evade the roadblocks because he wanted to go home and was scared of being arrested, in possession of marijuana, by small-town police officers. Defendant believed he could get through the final roadblock because he had seen a vehicle ahead of him do so, and felt that he was driving safely at 95 to 100 miles per hour. He denied wanting to hurt anyone, including the officers at the roadblocks.

The only homicide charge filed against defendant was first degree depraved mind murder, pursuant to Subsection 30-2-1(A)(3). At trial, defendant tendered requested jury instructions on vehicular homicide by reckless driving, pursuant to Sections 66-8-101 and 66-8-113, as a lesser included offense of depraved mind murder. The district court refused to give these instructions, concluding that there was insufficient evidence to support a conviction for the lesser offense. On appeal, defendant challenges that ruling.

In Omar-Muhammad I, this Court established that vehicular homicide by reckless driving is a lesser included offense of depraved mind murder. See State v. Omar-Muhammad, 102 N.M. at 278-79, 694 P.2d at 926-27. Comparing the relevant elements of each offense, we concluded that one cannot commit depraved mind murder without also committing vehicular homicide by reckless driving; therefore the lesser offense was "necessarily included" in the greater. Id. (citing State v. DeMary, 99 N.M. 177, 179, 655 P.2d 1021, 1023 (1982)).

In Omar-Muhammad I, we also reiterated the rule that the trial court must give instructions on a lesser included offense only where the evidence could support a conviction for the lesser offense. Id. at 279, 694 P.2d at 927. We concluded that the evidence offered at defendant's first trial was insufficient to support a conviction for vehicular homicide by reckless driving, and that the trial court therefore had not erred in refusing the defendant's requested instruction. Id. In most cases, however, it is for the jury to determine whether the defendant acted with the subjective knowledge of great danger to the lives of others required to establish depraved mind murder or merely with the mental state of conscious wrongdoing (i.e., whether he purposefully did an act the law declares to be a crime) required to establish vehicular homicide. See State v. McCrary, 100 N.M. 671, 673, 675 P.2d 120, 122 (1984); cf. State v. Kappel, 53 N.M. 181, 186-87, 204 P.2d 443, 446-47 (1949) (first and second degree murder). See generally State v. Omar-Muhammad, 102 N.M. at 278, 694 P.2d at 926 (elements of offenses).

We must look at all the evidence adduced in this trial in order to determine whether there was evidence from which the jury could have found that defendant purposefully did an act the law declares to be a crime but lacked a subjective knowledge of the risk posed by his acts. We conclude that there was such evidence, and that the district court therefore erred in refusing to instruct the jury on the lesser included offense of vehicular homicide by reckless driving. Its error cannot be considered harmless, see State v. Reynolds, 98 N.M. 527, 529, 650 P.2d 811, 813 (1982), so we reverse defendant's conviction and remand this case for a new trial.

II. Failure to Instruct on Vehicular Homicide While Under the Influence of Drugs.

Defendant testified that when they left Oklahoma City, he and Mr. Griffin possessed about three-quarters of an ounce of marijuana. As they drove from Oklahoma City to Amarillo in the early hours of September 30, 1983, they smoked twelve to fifteen marijuana cigarettes. Back on the road at dawn, they smoked another four to six marijuana cigarettes between Amarillo and San...