State v. Price

• Decision Date: 10 April 1986
• Docket Number: No. 8726,8726
• Citation: 104 N.M. 703,726 P.2d 857,1986 NMCA 36
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John Walter PRICE, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 857

726 P.2d 857

104 N.M. 703

STATE of New Mexico, Plaintiff-Appellee, v. John Walter PRICE, Defendant-Appellant.

No. 8726.

Court of Appeals of New Mexico.

Apr. 10, 1986.

Certiorari Quashed Oct. 15, 1986.

[104 NM 703] Jacquelyn Robins, Chief Public Defender, Susan Gibbs, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

Paul G. Bardacke, Atty. Gen., William McEuen, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

BIVINS, Judge.

Convicted of attempted murder in the first degree and armed robbery, both with firearm enhancement, defendant appeals, raising three issues:

1. Whether a crime exists for attempted felony murder, and, if no crime exists, whether reprosecution of defendant for first-degree murder is precluded under double jeopardy.

2. Whether the trial court erred in refusing to grant a mistrial after a juror asked if it was safe to leave the "gun and shells" within reach of defendant.

3. Whether defendant was ineffectively assisted by counsel where trial counsel failed to ask the court to voir dire the juror identified above and failed to ask the court to excuse the juror.

We answer these issues by holding that no crime exists for attempted felony murder; because attempted felony murder was an improper charge, the court lacked jurisdiction over Count I and, therefore, double jeopardy does not arise; the court committed no error in refusing to grant a mistrial based on the juror's comment; and the record does not support a finding of ineffective assistance of counsel. Accordingly, we reverse the conviction of attempted first-degree murder, and affirm the conviction of armed robbery. We remand with instructions.

Viewing the evidence in a light most favorable to the verdicts convicting defendant, State v. DeSantos, 89 N.M. 458, 553 P.2d 1265 (1976), the proof reflects that between 7:00 and 8:00 p.m., on January 18, 1984, defendant entered a service station in Santa Rosa on three occasions. Leonard Foust, the attendant, was watching television because business was slow. On the first occasion, defendant attempted to cash a check but was refused. Five or ten minutes later, defendant returned and asked for the restroom key. After apparently using the restroom, he left and returned, again asking for the key. Defendant took the key and walked around the building, but then quickly returned to the office. He pulled out a revolver, ordering Foust to open the cash register. As defendant left with the cash, he paused in the doorway, aimed his revolver at Foust's head, and fired once. The bullet entered Foust's right cheek and exited his head, behind the right ear. He survived and later identified defendant as the assailant and robber.

ATTEMPTED FELONY MURDER

In his brief-in-chief, defendant argues that the crime of attempted felony murder does not exist. In so arguing, he relies on our holding in State v. Johnson, 103 N.M. 364, 707 P.2d 1174 (Ct.App.), cert. quashed, 103 N.M. 344, 707 P.2d 552 (1985), that the crime of attempted depraved mind murder does not exist because of the logical impossibility of intending to commit an unintentional crime. Because felony murder contains no mens rea requirement, defendant similarly contends that a felony murder cannot be intentionally committed. The state counters that, unlike depraved mind murder, a felony murder can be intentionally committed. Because there was evidence of an attempt to commit intentional murder and the jury was properly instructed, the state argues that defendant's conviction should be upheld.

Technically, the state is correct in its assertion that a felony murder can be intentionally committed. The felony murder doctrine evolved as a response to the realization that inherent in the commission of dangerous felonies is the possibility that death can occur. State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977); Head v. State, 443 N.E.2d 44 (Ind.1982). When a death occurs during the commission of an inherently dangerous felony, the prosecution bears no burden of proving intent to kill. Id. Rather, the requisite malice aforethought can be inferred from the commission or attempted commission of the felony. Id. Thus, the determination of whether felony murder has been properly charged does not turn on whether the murder was intentionally or unintentionally committed; felony murder simply contains no mens rea requirement.

Felony murder, therefore, substantively differs from depraved mind murder. A charge of depraved mind murder "expressly excludes a specific intent to kill a specific person." State v. Johnson, 103 N.M. at 368, 707 P.2d at 1178. Because an attempt conviction requires a showing of specific intent, there is an inherent conflict between the elements of attempt and depraved mind murder. Id.

The majority of courts have refused to recognize the crime of attempted felony murder. See Head v. State; People v. Franklyn, 157 Cal.App.3d 518, 203 Cal.Rptr. 813 (1984); People v. Viser, 62 Ill.2d 568, 343 N.E.2d 903 (1975); People v. Hassin, 48 A.D.2d 705, 368 N.Y.S.2d 253 (1975); Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983). Cf. Amlotte v. State, 456 So.2d 448 (Fla.1984) (holding that if in commission of a felony, a specific act is committed which could, but does not, result in the death of another, the specific intent to kill will be presumed); White v. State, 266 Ark. 499, 585 S.W.2d 952 (1979) (attempted murder possible where attempt not defined as requiring intent to commit a felony).

Most of the courts which have rejected recognition of attempted felony murder refused to expand the inferred malice in felony murder to the proof of specific intent necessary to sustain an attempt conviction. Head v. State; People v. Franklyn; Commonwealth v. Griffin. See People v. Collie, 30 Cal.3d 43, 177 Cal.Rptr. 458, 634 P.2d 534 (1981); People v. Harris, 72 Ill.2d 16, 17 Ill.Dec. 838, 377 N.E.2d 28 (1978). The same rationale runs through each holding: the crime of attempted murder requires specific intent to kill. Thus, intent must be proven; it cannot be inferred solely from the commission of a dangerous felony.

The case before us, however, differs in its posture from the cases cited above. In some of those cases, the juries were not instructed to find a specific intent to kill. The intent could be derived from the commission of the felony. Head v. State; Commonwealth v. Griffin. In other cases, the juries were instructed on implied and express malice, resulting in guilty verdicts possibly without a finding of specific intent to kill. People v. Franklyn; see People v. Collie.

In our case, however, the jury was clearly instructed that in order to find defendant guilty of attempted murder, it had to find that defendant intended to kill. The precise language of the jury instruction was as follows:

For you to find the defendant guilty of an attempt to commit Murder in the First Degree * * * the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:

1. The defendant intended to commit the Murder;

2. The defendant began to do an act which constituted a substantial part of the murder but failed to commit the murder;

3. This happened in New Mexico on or about the 18th day of January, 1984.

See NMSA 1978, UJI Crim. 28.10 (Repl.Pamp.1982) (emphasis added).

Thus, the court instructed the jury that it had to find beyond a reasonable doubt that defendant intended to kill the victim, and the jury made such a finding. The state, therefore, makes a cogent argument in favor of recognition here of the crime of attempted felony murder.

Strong policy considerations, however, persuade us not to recognize the crime. First, the felony murder doctrine is a result-oriented doctrine. It is a legislative creation designed to make felons strictly responsible for deaths occurring during the commission or attempted commission of inherently dangerous felonies. People v. Hassin. The doctrine has no applicability where there is no death. Head v. State.

Additionally, felony murder is not a popular doctrine. The source of its unpopularity is the legal presumption that a defendant intended to kill. Head v. State. Courts, commentators, and legislatures alike adhere to the belief that the prosecution should bear the burden of proving that the defendant possessed the necessary aforethought or mens rea. See People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980).

Accordingly, England entirely abandoned felony murder in 1957. Homicide Act, 1957, 5 & 6 Eliz. 2, c. 11, Sec. 1. Now, in England, malice aforethought must be proven in order to sustain any murder conviction. Head v. State. Likewise, in the United States, the trend has been to narrow the application of the felony murder doctrine. Id.; People v. Aaron. Some jurisdictions have abolished the application of the doctrine. See 7A Hawaii Rev.Stat. Sec. 707-701 (Repl.1976); 16A Ky.Rev.Stat. Sec. 507.020 (Repl.1985). Other jurisdictions have reduced the degree of murder and punishment for felony murder. See Alaska Stat. Secs. 11.41.110 and 11.41.115 (1985); 9 La.Rev.Stat.Ann. Sec. 14:30.1 (West Supp.1986); Minn.Stat.Ann. Sec. 609.185 (West 1984); N.Y. Penal Law Sec. 125.25 (Consol.1984); Ohio Rev.Code Ann. Sec. 2903.04 (Page 1984 Supp.); 18 Pa.Cons.Stat.Ann. Sec. 2502 (Purdon 1983); Utah Code Ann. Sec. 76-5-202 (Interim Supp.1984). In New Mexico, the supreme court limited the applicability of the felony murder doctrine, holding that the doctrine shall not be invoked unless the murder occurred during the commission or attempted commission of a felony which carries with it a high probability of death. State v. Harrison.

Thus, the result-oriented nature of the doctrine and the unpopularity of felony murder are among the concerns which persuade us not to recognize the crime of attempted felony murder. To acknowledge the crime would entail broadening the scope of the felony murder doctrine when the trend has been to narrow or to...