State v. Ortega

BACA, Justice (concurring in part, dissenting in part).

I concur in the result reached by the majority. I write separately, however, to express my belief that application of the felony-murder rule, as refined in State v. Harrison, 90 N.M. 439 , 564 P.2d 1321 (1977), does not infringe on an accused’s constitutional rights, and therefore, is sufficient to affirm appellant’s conviction. I do not agree that our statute must be construed to require proof of intent to kill for there to be criminal liability for first degree murder, and I do not join in Part II of the majority’s opinion. I would affirm based on the proper application of the felony-murder doctrine.

No matter how disfavored the felony-murder rule may be in the eyes of commentators and courts, it is our duty not to replace the legislature’s judgment with our own.

[T]his Court does not sit as a super-legislature with the power to uphold or strike down the laws of the state based upon our own judgment as to the wisdom and proprieties of such laws. So long as the Legislature acts within the parameters of its constitutional powers and limitations, this Court is powerless to intercede.

State v. Mabry, 96 N.M. 317, 321 , 630 P.2d 269, 273 (1981) (citations omitted).

Our duty is to uphold a statute unless we are satisfied beyond a reasonable doubt that the legislature acted unconstitutionally in enacting it. State v. Ball, 104 N.M. 176 , 718 P.2d 686 (1986). Because I do not believe the felony-murder statute violates the constitution, I do not agree that this court should interfere with the clear dictates of the legislature.

Initially, I note that the majority does not hold our previous interpretation of the felony-murder rule, NMSA 1978, Section 30-2-l(A) (Repl.Pamp.1984), unconstitutional. 1 The majority suggests that if we were to continue to interpret the doctrine to not require some proof of intent, we may overstep constitutional limitations. To avoid any potential unconstitutionality, it alters the rule contrary to the legislature’s intent. I do not believe that is our role. Absent a determination of unconstitutionality, we should interpret the law as the legislature intended. I will first set forth why I believe this court’s previous interpretation of the felony-murder rule is constitutionally valid and then attempt to demonstrate why the majority’s interpretation of the legislative intent is infirm.

The majority relies on Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979), for the proposition that presumptions that invade a jury’s function and shift a burden of proof from the state to a defendant are invalid. In my view, that case is inapplicable. In Harrison, we noted that “[o]ur felony-murder statute conclusively presumes that any homicide occurring during any felony is first-degree murder.” 90 N.M. at 442 , 564 P.2d at 1324 . The majority relies heavily on that characterization to question the constitutionality of that “conclusive presumption.” Our current statute, however, does not contain that presumption.

Harrison was decided under our earlier murder statute, which stated:

Murder is the unlawful killing of one human being by another with malice aforethought, either express or implied, by any means with which death may be caused.

A. Murder in the first degree consists of all murder perpetrated:

* * * * * *

(3) in the commission of or attempt to commit any felony.

NMSA 1978, Section 30-2-1 (Orig.Pamp. 1978) (emphasis added).

Despite the plain language of the statute, which would appear to contain an intent requirement for felony murder, this court determined that murder meant homicide, because at common law the intent was supplied by the intent to commit the underlying felony. State v. Welch, 37 N.M. 549, 558 , 25 P.2d 211, 216 (1933); see Thompson & Gagne, The Confusing Law of Criminal Intent in New Mexico, 5 N.M.L.Rev. 63, 75 (1974). Harrison considered that earlier statute and, thus, relied on a presumption of intent — as that earlier statute had been construed, the express requirement of intent was presumed from the underlying felony. 2 The statute applicable to the present case, however, has expressly excluded a requirement of intent; it states first degree murder is the killing of another in the commission or attempt to commit a felony. 3

In State v. Pierce, 109 N.M. 596, 601 , 788 P.2d 352, 357 (1990), we considered the amended murder statute and determined that there was no mens rea requirement— the state did not bear the burden to prove an intent to kill. 4 Thus, Sandstrom is in-apposite — we are not considering a conclusive presumption of mens rea 5 A jury has not been instructed to presume an element of the crime from some other facts, nor has the state been relieved of its burden to prove a statutory element. 6 The legislature has determined that a killing committed during a felony (as modified by Harrison) is first-degree murder, and I am not convinced that the statute is unconstitutional simply because it creates criminal liability for first degree murder when the state has not shown the accused had the intent to kill.

The majority admits that a mens rea element is not constitutionally required, but relies on Morissette v. United States, 342 U.S. 246 , 72 S.Ct. 240 , 96 L.Ed. 288 (1952), and United States v. United States Gypsum Co., 438 U.S. 422 , 98 S.Ct. 2864 , 57 L.Ed.2d 854 (1978), for the contention that a mental element provides a rationale for punishment. Supra, at 1203. Unlike the crimes of conversion or price fixing, however, felony murder contains an element of intent, albeit not the intent to kill. The perpetrator must intend to commit the underlying felony; that felony must be serious, as discussed in Harrison, and the state must carry its burden to prove that felony. In that sense felony murder is not a strict liability crime. The legislature has decided that an individual who attempts to commit a felony and who takes a life during the commission of that felony has committed first degree murder. The statute provides notice to such an individual that, should he choose to participate in a serious felony, and should someone be killed, the felon will be subject to criminal liability for first degree murder. I do not believe that this is constitutionally infirm. 7

Nor do I agree that the eighth amendment is implicated by my analysis. While a death sentence, because of its unique nature, is unconstitutional if a defendant, convicted of felony murder, did not intend to kill or personally commit the act against the victim, Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982), a capital sentence may be imposed for a felony murder conviction under the appropriate circumstances where the defendant’s mental state indicated reckless indifference to human life. Tison v. Arizona, 481 U.S. 137 , 107 S.Ct. 1676 , 95 L.Ed.2d 127 (1987). The significance of this eighth amendment analysis under our statutory scheme, which precludes a capital sentence unless a murder is committed “with the intent to kill” except in the murder of a peace officer, NMSA 1978, Section 30-20A-5 (Repl.Pamp. 1990), and which thereby creates a standard for imposition of the death penalty higher than is constitutionally required, see Tison, 481 U.S. at 158 , 107 S.Ct. at 1688 , is relatively slight.

Thus, we have not been, and could not be, presented with the question of a death sentence where the defendant did not possess the intent to kill. The majority refers to Solem v. Helm, 463 U.S. 277 , 103 S.Ct. 3001 , 77 L.Ed.2d 637 (1983), which it indicates would be authority to hold even a lengthy prison sentence unconstitutional if no mens rea was required. The recent case of Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680 , 115 L.Ed.2d 836 (1991) (upholding mandatory life sentence without possibility of parole for possession of cocaine), has cast doubt on the validity of the proposition found in Solem that the eighth amendment guarantees proportionality in other than capital sentences. When the gravity of a killing committed during a first degree or inherently dangerous felony is considered, I believe it is beyond doubt that serious punishment is within the legislature’s prerogative and passes eighth amendment scrutiny.

After its inconclusive constitutional analysis, the majority proceeds to construe the felony-murder statute, which it characterizes as “at most ... silent on the necessity of an intent-to-kill element, and [which] certainly does not expressly negate any such requirement,” to require proof of intent to kill. Supra, at 1203-1204. I do not believe the statute, viewed in its historical context, is silent. For the following reasons, I believe the statute clearly does not require an intent to kill.

In 1980, the legislature amended our murder statute, essentially replacing the term “murder” with “killing.” I do not believe the word “killing” is ambiguous in this context; if the legislature intended some form of malice requirement, it could have used a term, such as murder, that required malice. Assuming, however, that there is some ambiguity, I do not see how the majority could construe the term “killing” to mean “murder” when the legislature has expressly replaced “murder” with “killing.”

“An amendment of an unambiguous statute indicates a purpose to change the law, whereas no such purpose is indicated by the mere fact of an amendment of an ambiguous provision.” 1A N. Singer, Sutherland Statutory Construction § 22.30 (4th ed. 1985). This court’s function should be to determine what changes, if any, the legislature intended. , First, the legislature had stood pat for nearly fifty years with this court’s interpretation of the earlier statute. This provides at least some indication that the legislature did not disagree with that prior construction. See In re Morrow’s Will, 41 N.M. 117 , 64 P.2d 1300 (1937) (legislative inaction indicates acquiescence to judicial interpretation); cf. State ex rel. Lee v. Hartman, 69 N.M. 419 , 367 P.2d 918 (1961) (court should resort to rule that legislative acquiescence amounts to legislative interpretation only after other tools of interpretation have failed); Garcia v. Schneider, 105 N.M. 234, 237 , 731 P.2d 377, 400 (Ct.App.1986) (same). It then amended the statute to adopt the interpretation given the prior act, deleting the ambiguous term “murder.” This was done to clarify that no intent to murder was required and to eliminate the fiction of presumed intent.

I note the irony of the court’s interpretation of the statutory language. In Welch, we determined that the word “murder” in the original statute, by implication of the common law, meant killing. Now, we make the Orwellian determination that “killing” means murder. This represents a disregard of the legislative will as expressed through the language employed in its statute.

The majority determines, nonetheless, that, although the actus reus — the actual killing — can be perpetrated by a cofelon, a defendant cannot be liable without proof of his or her mens rea. Thus, I find confusing the majority’s reliance on several of the cases cited supra, at 1207 n. 10. First, those cases interpret statutes that differ from ours — they expressly define felony murder as murder committed in the perpetration, or attempted perpetration, of a felony. Moreover, at least in several of the jurisdictions, the courts have not limited the felony-murder rule to require that the accused have the requisite intent, even though they have required intent to kill by a codefendant. Thus, in Iowa the courts, construing a revised statute similar to that addressed in State v. Galloway, 275 N.W.2d 736 (Iowa 1979), have determined that felony murder requires proof of a defendant’s participation in an underlying felony and of a murder, with malice, committed during the felony. State v. Ragland, 420 N.W.2d 791, 793 (Iowa 1988). The state does not have to prove, however, that the accused possessed malice aforethought, as long as he participated in the felony and a cofelon possessed malice. Id. at 794 ; see also Conner v. State, 362 N.W.2d 449, 455 (Iowa 1985) (“The fact that killing was not within the actual contemplation and intention of one of the parties to the robbery does not relieve such person of the responsibility as long as the other party to the robbery had the necessary mens rea and the act wás a consequence of carrying out the unlawful common design.”). Similarly, Commonwealth ex rel. Smith v. Myers, 438 Pa. 218 , 261 A.2d 550 (1970), does not require the defendant to have the requisite mens rea, as long as a cofelon possessed such intent.

Because the previous interpretation given to our felony-murder statute is not unconstitutional, and because I believe the majority of this court has wrongly interpreted the legislature’s intent in refining the rule, I dissent from that part of the opinion revising the doctrine.

. In refusing to find that the statute is unconstitutional, the majority is on the side of the clear weight of authority. See 40 CJ.S. Homicide § 43(c) (1991). In fact, my research has not uncovered a case holding a felony murder statute unconstitutional as a violation of either the eighth amendment or due process.

. The California Supreme Court reached a similar conclusion when construing its felony-murder statute, which was similar to our earlier statute, in People v. Dillon, 34 Cal.3d 441 , 668 P.2d 697 , 194 Cal.Rptr. 390 (1983) (in bank). In that case the court determined that, unlike Michigan, see People v. Aaron, 409 Mich. 672 , 299 N.W.2d 304 (1980), the California statute incorporated the common law of felony murder into its murder statute, making its statute not merely one of degree fixing, but also a codification of the common law. 34 Cal.3d at 462-73 , 668 P.2d at 708-15 , 194 Cal.Rptr. at 401-08 . In New Mexico, the common law was incorporated into our early statute by Welch; the legislature acted on the judicial incorporation in 1980, codifying and streamlining the common law felony-murder rule by making first degree murder a killing done in the commission or attempted commission of a felony.

. The current statute, NMSA 1978, Section 30-2-1(A) (Repl.Pamp.1984), states:

Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused:

(1) by any kind of willful, deliberate and premeditated killing;

(2) in the commission of or attempt to commit any felony; or

(3) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.

. Obviously, I do not agree with the majority that the statute at issue in Harrison is similar to the one now applicable. Cf. supra, at 1201-02. The language of the current statute eliminates the mens rea inherent in the term "murder" and makes unnecessary the presumption of intent from the underlying felony.

. Even if the current statute is viewed as creating a presumption, however, the presumption at issue here is not analogous to that derided in Sandstrom. I agree with the analysis of this issue presented in People v. Dillon, 34 Cal.3d at 473-77 , 668 P.2d at 715-18 , 194 Cal.Rptr. at 408-11 . Dillon noted that, if the felony-murder rule created a presumption, it did not operate to shift a burden from the state to the defendant, but rather acted to define the substantive law, Le., malice is not an element of felony murder. Sandstrom requires that, if a state defines an element of a crime that must be proved by the prosecution, that burden cannot be shortcut by use of an evidentiary presumption. Dillon concluded, however, and I agree, that “[bjecause the felony-murder rule thus does not in fact raise a ‘presumption’ of the existence of an element of the crime, it does not violate the due process clause." Id. at 476-77 , 668 P.2d at 718 , 194 Cal.Rptr. at 411 ; see also id. n. 22 (listing jurisdictions finding Sandstrom inapplicable); State v. Reeves, 234 Neb. 711 , 453 N.W.2d 359 (felony murder requires only the intent to commit the underlying felony; once that intent is proved, it is imputed to the killing, and Sandstrom is inapplicable), vacated on other grounds, — U.S. -, 111 S.Ct. 425 , 112 L.Ed.2d 409 (1990); People v. Benson, 125 Misc.2d 843 , 480 N.Y.S.2d 811 (1984) (intent is not an element of the crime of felony murder, and Sandstrom not implicated); Commonwealth v. Rawls, 328 Pa.Super. 469 , 477 A.2d 540 (1984) (equating of intent to kill with intent to commit a serious felony is permissible legislative decision reflecting the gravity of killing during a serious felony); State v. Sheffield, 676 S.W.2d 542 (Tenn.1984) (statute makes killing during a felony first degree murder and does not have the effect of shifting burden of proof to defendant).

Also relevant to this issue is the recent United States Supreme Court case of Yates v. Evatt, — U.S. -, 111 S.Ct. 1884 , 114 L.Ed.2d 432 (1991), a progeny of Sandstrom. The Court found impermissible an instruction that allowed the jury to presume that the actual killer had the intent to kill from his use of a deadly weapon and from his commission of an unlawful act, not in the transfer, as a matter of law, of the intent of the perpetrator to the accomplice. The Court was not troubled with the theory of accomplice liability, whereby the jury was instructed that if it found the actual perpetrator had the intent to kill, it could find the defendant-accomplice guilty.

. The majority states: "It is now open to serious question whether ... any presumption * * * is constitutional, where the effect of the presumption is to establish, or place on the defendant the burden of proving, that he or she had the requisite mens rea to commit first degree murder.” Supra, at 1203. The statute, however, does not require the intent to commit first degree murder; the jury is not instructed to presume from the underlying felony that a defendant intended to kill the victim. The statute simply allows a separate track to a finding of first degree murder based on a separate evil to be prevented.

. On the question of the constitutionality of the traditional felony-murder rule, I have also found relevant the recent United States Supreme Court case of Schad v. Arizona, — U.S. -, 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991), wherein the Court addressed the constitutionality of a jury instruction that did not require the jury to agree on whether the defendant was guilty of premeditated murder or felony murder. Unlike the majority in this case, the Court found that the historical acceptance of the felony-murder rule militated in favor of its constitutionality, and, moreover, determined that the two mental states, premeditation and a killing committed during a felony could "reasonably reflect notions of equivalent blameworthiness or culpability.” Id. at-, 111 S.Ct. at 2503.