felony-murder doctrine in New Mexico

2017See State v. Campos, 1996-NMSC-043 , ¶ 29, 12 122 N.M. 148 , 921 P.2d 1266 (“[I]n order for the felony murder doctrine to apply to 13 a defendant, the State must prove that the defendant acted with the mens rea for at 14 least second-degree murder.”). 15 C.

2017See State v. Campos, 1996-NMSC-043 , ¶ 29, 12 122 N.M. 148 , 921 P.2d 1266 (“[I]n order for the felony murder doctrine to apply to 13 a defendant, the State must prove that the defendant acted with the mens rea for at 14 least second-degree murder.”). 15 C.

2007As this Court noted in Ortega , "[f]ew legal doctrines have been as maligned and yet have shown as great a resiliency as the felony-murder rule." 112 N.M. at 559 , 817 P.2d at 1201 (quoted authority omitted); see also Model Penal Code § 210.1 cmt. 1, at 5-6 (Official Draft and Revised Comments 1962) (explaining that the Model Penal Code abandons the felony murder doctrine as an independent basis for establishing liability for criminal homicide).

2007As this Court noted in Ortega , "[f]ew legal doctrines have been as maligned and yet have shown as great a resiliency as the felony-murder rule." 112 N.M. at 559 , 817 P.2d at 1201 (quoted authority omitted); see also Model Penal Code § 210.1 cmt. 1, at 5-6 (Official Draft and Revised Comments 1962) (explaining that the Model Penal Code abandons the felony murder doctrine as an independent basis for establishing liability for criminal homicide).

2016See, e.g., State v. Torrez, 2013-NMSC-034, ¶ 34 , 305 3 P.3d 944 (declining to consider defendant’s argument that the same jury instructions 4 in the first trial must be given in a retrial because defendant did not cite to any case 5 law supporting his argument); Elane Photography, LLC v. Willock, 2013-NMSC-040 , 6 ¶ 70, 309 P.3d 53 (“It is of no benefit either to the parties or to future litigants for this 7 Court to promulgate case law based on our own speculation rather than the parties’ 8 carefully considered arguments.”). 9 {30} Defendant further argues that the felony murder doctrine is

2016See, e.g., State v. Torrez, 2013-NMSC-034, ¶ 34 , 305 3 P.3d 944 (declining to consider defendant’s argument that the same jury instructions 4 in the first trial must be given in a retrial because defendant did not cite to any case 5 law supporting his argument); Elane Photography, LLC v. Willock, 2013-NMSC-040 , 6 ¶ 70, 309 P.3d 53 (“It is of no benefit either to the parties or to future litigants for this 7 Court to promulgate case law based on our own speculation rather than the parties’ 8 carefully considered arguments.”). 9 {30} Defendant further argues that the felony murder doctrine is

2016See generally People v. Aaron, 299 N.W.2d 304, 317 (Mich. 1980) (criticizing the felony-murder rule on grounds that it “completely ignores the concept of determination of guilt on the basis of individual misconduct . . . [and] erodes the relation between criminal liability and moral culpability.” (internal quotation marks and citations omitted)).

2016See generally People v. Aaron, 299 N.W.2d 304, 317 (Mich. 1980) (criticizing the felony-murder rule on grounds that it “completely ignores the concept of determination of guilt on the basis of individual misconduct . . . [and] erodes the relation between criminal liability and moral culpability.” (internal quotation marks and citations omitted)).

2016See, e.g., State v. Torrez, 2013-NMSC-034, ¶ 34 , 305 3 P.3d 944 (declining to consider defendant’s argument that the same jury instructions 4 in the first trial must be given in a retrial because defendant did not cite to any case 5 law supporting his argument); Elane Photography, LLC v. Willock, 2013-NMSC-040 , 6 ¶ 70, 309 P.3d 53 (“It is of no benefit either to the parties or to future litigants for this 7 Court to promulgate case law based on our own speculation rather than the parties’ 8 carefully considered arguments.”). 9 {30} Defendant further argues that the felony murder doctrine is

2016See, e.g., State v. Torrez, 2013-NMSC-034, ¶ 34 , 305 3 P.3d 944 (declining to consider defendant’s argument that the same jury instructions 4 in the first trial must be given in a retrial because defendant did not cite to any case 5 law supporting his argument); Elane Photography, LLC v. Willock, 2013-NMSC-040 , 6 ¶ 70, 309 P.3d 53 (“It is of no benefit either to the parties or to future litigants for this 7 Court to promulgate case law based on our own speculation rather than the parties’ 8 carefully considered arguments.”). 9 {30} Defendant further argues that the felony murder doctrine is

2025Even assuming the armed robbery instruction offered two theories of liability while the felony murder instruction offered only one, Defendant has failed to demonstrate how such a construction was error, much less error resulting in “the existence of circumstances that ‘shock the conscience’ or implicate a fundamental unfairness within the system.” Id. (citation omitted). {40} Defendant seeks to fit his claim of error within “[t]he general rule . . . that fundamental error occurs when the trial court fails to instruct the jury on an essential element.” State v. Sutphin, 2007-NMSC-045, ¶ 16 , 14

2016State v. Cunningham, 2000-NMSC-009, ¶¶ 8, 11 , 128 N.M. 711 , 998 P.2d 176 .

2019See State v. Marquez , 2016-NMSC-025 , ¶ 14, 376 P.3d 815 (listing cases that have limited the scope of the felony-murder rule).

2019See State v. Marquez, 2016-NMSC-025, ¶ 14 , 376 P.3d 815 (listing cases that have limited the scope of the felony-murder rule).

2016In addition, the strict-elements test is most sensible in the wake of Ortega because the felony- murder doctrine applies only where the state can “prove the elements of second degree murder as well as an independent felony.” State v. Varela, 1999-NMSC-045, ¶ 20 , 128 N.M. 454 , 993 P.2d 1280 ; see also State v. McGruder, 1997-NMSC-023, ¶ 16 , 123 N.M. 302 , 940 P.2d 150 (concluding that the strict-elements test is the appropriate analytical tool to determine whether a particular felony may serve as a collateral felony), abrogated on other grounds by State v. Chavez, 2009-NMSC-035 , 146 N.M. 43

2016In addition, the strict-elements test is most sensible in the wake of Ortega because the felony- murder doctrine applies only where the state can “prove the elements of second degree murder as well as an independent felony.” State v. Varela, 1999-NMSC-045, ¶ 20 , 128 N.M. 454 , 993 P.2d 1280 ; see also State v. McGruder, 1997-NMSC-023, ¶ 16 , 123 N.M. 302 , 940 P.2d 150 (concluding that the strict-elements test is the appropriate analytical tool to determine whether a particular felony may serve as a collateral felony), abrogated on other grounds by State v. Chavez, 2009-NMSC-035 , 146 N.M. 43

2016In addition, the strict-elements test is most sensible in the wake of Ortega because the felony- murder doctrine applies only where the state can “prove the elements of second degree murder as well as an independent felony.” State v. Varela, 1999-NMSC-045, ¶ 20 , 128 N.M. 454 , 993 P.2d 1280 ; see also State v. McGruder, 1997-NMSC-023, ¶ 16 , 123 N.M. 302 , 940 P.2d 150 (concluding that the strict-elements test is the appropriate analytical tool to determine whether a particular felony may serve as a collateral felony), abrogated on other grounds by State v. Chavez, 2009-NMSC-035 , 146 N.M. 43

2016In addition, the strict-elements test is most sensible in the wake of Ortega because the felony- murder doctrine applies only where the state can “prove the elements of second degree murder as well as an independent felony.” State v. Varela, 1999-NMSC-045, ¶ 20 , 128 N.M. 454 , 993 P.2d 1280 ; see also State v. McGruder, 1997-NMSC-023, ¶ 16 , 123 N.M. 302 , 940 P.2d 150 (concluding that the strict-elements test is the appropriate analytical tool to determine whether a particular felony may serve as a collateral felony), abrogated on other grounds by State v. Chavez, 2009-NMSC-035 , 146 N.M. 43

2013See State v. Stills, 2 1998-NMSC-009, ¶¶ 36-37 , 125 N.M. 66 , 957 P.2d 51 (recognizing the principle that 3 “[m]ere sudden anger or heat of passion will not reduce the killing from murder to 4 manslaughter” and that in order to justify giving a voluntary manslaughter instruction 5 the trial judge must determine not only that was there evidence Defendant was 6 adequately provoked into a loss of self control but that an “ordinary person of average 7 disposition” in the same situation would have suffered a loss of self control (internal 8 quotation marks and citation omitted)); see also UJI 14-2

2013See State v. Stills, 2 1998-NMSC-009, ¶¶ 36-37 , 125 N.M. 66 , 957 P.2d 51 (recognizing the principle that 3 “[m]ere sudden anger or heat of passion will not reduce the killing from murder to 4 manslaughter” and that in order to justify giving a voluntary manslaughter instruction 5 the trial judge must determine not only that was there evidence Defendant was 6 adequately provoked into a loss of self control but that an “ordinary person of average 7 disposition” in the same situation would have suffered a loss of self control (internal 8 quotation marks and citation omitted)); see also UJI 14-2

2016See Campos v. Bravo, 2007-NMSC-021, ¶ 9 , 141 N.M. 801 , 161 P.3d 846 ; State v. Campos, 1996-NMSC-043 , ¶ 22, 122 N.M. 148 , 921 P.2d 1266 ; State v. Ortega, 1991- NMSC-084, ¶¶ 14-15, 112 N.M. 554 , 817 P.2d 1196 , abrogated on other grounds by State v. Frazier, 2007-NMSC-032, ¶ 1 , 142 N.M. 120 , 164 P.3d 1 ; State v. Harrison, 1977- NMSC-038, ¶¶ 12-14, 90 N.M. 439 , 564 P.2d 1321 , superseded by rule on other grounds by Tafoya v. Baca, 1985-NMSC-067 , ¶ 17, 103 N.M. 56 , 702 P.2d 1001 .

2016See Campos v. Bravo, 2007-NMSC-021, ¶ 9 , 141 N.M. 801 , 161 P.3d 846 ; State v. Campos, 1996-NMSC-043 , ¶ 22, 122 N.M. 148 , 921 P.2d 1266 ; State v. Ortega, 1991- NMSC-084, ¶¶ 14-15, 112 N.M. 554 , 817 P.2d 1196 , abrogated on other grounds by State v. Frazier, 2007-NMSC-032, ¶ 1 , 142 N.M. 120 , 164 P.3d 1 ; State v. Harrison, 1977- NMSC-038, ¶¶ 12-14, 90 N.M. 439 , 564 P.2d 1321 , superseded by rule on other grounds by Tafoya v. Baca, 1985-NMSC-067 , ¶ 17, 103 N.M. 56 , 702 P.2d 1001 .

2016In addition, the strict-elements test is most sensible in the wake of Ortega because the felony- murder doctrine applies only where the state can “prove the elements of second degree murder as well as an independent felony.” State v. Varela, 1999-NMSC-045, ¶ 20 , 128 N.M. 454 , 993 P.2d 1280 ; see also State v. McGruder, 1997-NMSC-023, ¶ 16 , 123 N.M. 302 , 940 P.2d 150 (concluding that the strict-elements test is the appropriate analytical tool to determine whether a particular felony may serve as a collateral felony), abrogated on other grounds by State v. Chavez, 2009-NMSC-035 , 146 N.M. 43

2016In addition, the strict-elements test is most sensible in the wake of Ortega because the felony- murder doctrine applies only where the state can “prove the elements of second degree murder as well as an independent felony.” State v. Varela, 1999-NMSC-045, ¶ 20 , 128 N.M. 454 , 993 P.2d 1280 ; see also State v. McGruder, 1997-NMSC-023, ¶ 16 , 123 N.M. 302 , 940 P.2d 150 (concluding that the strict-elements test is the appropriate analytical tool to determine whether a particular felony may serve as a collateral felony), abrogated on other grounds by State v. Chavez, 2009-NMSC-035 , 146 N.M. 43

2016Because the vast majority of homicides are predicated on an initial felonious assault, “every felonious assault ending in death automatically would be elevated to murder in the event a felonious assault could serve as the predicate felony for purposes of the felony-murder doctrine.” People v. Hansen, 885 P.2d 1022, 1028 (Cal.1994), overruled by People v. Sarun Chun, 203 P.3d 425 (2009).

2016Because the vast majority of homicides are predicated on an initial felonious assault, “every felonious assault ending in death automatically would be elevated to murder in the event a felonious assault could serve as the predicate felony for purposes of the felony-murder doctrine.” People v. Hansen, 885 P.2d 1022, 1028 (Cal. 1994), overruled by People v. Sarun Chun, 203 P.3d 425 (2009).

2016See Campos v. Bravo, 2007-NMSC-021, ¶ 9 , 141 N.M. 801 , 161 P.3d 846 ; State v. Campos, 1996-NMSC-043 , ¶ 22, 122 N.M. 148 , 921 P.2d 1266 ; State v. Ortega, 1991- NMSC-084, ¶¶ 14-15, 112 N.M. 554 , 817 P.2d 1196 , abrogated on other grounds by State v. Frazier, 2007-NMSC-032, ¶ 1 , 142 N.M. 120 , 164 P.3d 1 ; State v. Harrison, 1977- NMSC-038, ¶¶ 12-14, 90 N.M. 439 , 564 P.2d 1321 , superseded by rule on other grounds by Tafoya v. Baca, 1985-NMSC-067 , ¶ 17, 103 N.M. 56 , 702 P.2d 1001 .

2016See Campos v. Bravo, 2007-NMSC-021, ¶ 9 , 141 N.M. 801 , 161 P.3d 846 ; State v. Campos, 1996-NMSC-043 , ¶ 22, 122 N.M. 148 , 921 P.2d 1266 ; State v. Ortega, 1991- NMSC-084, ¶¶ 14-15, 112 N.M. 554 , 817 P.2d 1196 , abrogated on other grounds by State v. Frazier, 2007-NMSC-032, ¶ 1 , 142 N.M. 120 , 164 P.3d 1 ; State v. Harrison, 1977- NMSC-038, ¶¶ 12-14, 90 N.M. 439 , 564 P.2d 1321 , superseded by rule on other grounds by Tafoya v. Baca, 1985-NMSC-067 , ¶ 17, 103 N.M. 56 , 702 P.2d 1001 .

2003After a thorough review of case law from different jurisdictions, the New Jersey Supreme Court stated that “modern progressive thought in criminal jurisprudence favors restriction rather than expansion of the felony murder rule.” Id. at 29.

2003The court stated, “Tort concepts of foreseeability and proximate cause have shallow relevance to culpability for murder in the first degree.” Id. at 30.

2025See State v. Adamo, 2018-NMCA-013, ¶ 27 , 409 P.3d 1002 (“Since there was no reversible error, it follows that there was no fundamental error in the instructions.”). b.

2021See State v. Richardson, 462 S.E.2d 492, 499 (N.C. 1995) (“[T]he purpose of the felony murder rule is to deter even accidental killings from occurring during the commission of a dangerous felony.

2016See, e.g., State v. Torrez, 2013-NMSC-034, ¶ 34 , 305 3 P.3d 944 (declining to consider defendant’s argument that the same jury instructions 4 in the first trial must be given in a retrial because defendant did not cite to any case 5 law supporting his argument); Elane Photography, LLC v. Willock, 2013-NMSC-040 , 6 ¶ 70, 309 P.3d 53 (“It is of no benefit either to the parties or to future litigants for this 7 Court to promulgate case law based on our own speculation rather than the parties’ 8 carefully considered arguments.”). 9 {30} Defendant further argues that the felony murder doctrine is

2013The district court vacated the voluntary manslaughter and shooting at a motor vehicle convictions, leaving only the first-degree felony murder conviction, as required by New Mexico double jeopardy jurisprudence establishing that cumulative punishment may not be imposed for both felony murder and its lesser included predicate felony, see State v. Frazier, 2007-NMSC-032, ¶¶ 1, 40 , 142 N.M. 120 , 164 P.3d 1 ; see also id. ¶ 72 (Chávez, J., specially concurring), and that multiple homicide convictions may not be imposed on a defendant for a single death, see State v. Santillanes, 2001-NMSC-018, ¶

2013The district court vacated the voluntary manslaughter and shooting at a motor vehicle convictions, leaving only the first-degree felony murder conviction, as required by New Mexico double jeopardy jurisprudence establishing that cumulative punishment may not be imposed for both felony murder and its lesser included predicate felony, see State v. Frazier, 2007-NMSC-032, ¶¶ 1, 40 , 142 N.M. 120 , 164 P.3d 1 ; see also id. ¶ 72 (Chávez, J., specially concurring), and that multiple homicide convictions may not be imposed on a defendant for a single death, see State v. Santillanes, 2001-NMSC-018, ¶

2012As best as we can glean from his brief on this issue, 3 Defendant appears to argue that the mental disease or disorder instruction should have been a separate element of each offense, as it was for felony murder, and not a separate instruction. {43} We begin by reminding Defendant that “New Mexico courts have repeatedly held thatthe defendant cannot be heard to complain if the trial court instructed the jury as he desired.” State v. Hamilton, 107 N.M. 186, 189 , 754 P.2d 857, 860 (Ct. App. 1988) (citing State v. Boeglin, 105 N.M. 247 , 731 P.2d 943 (1987)).

2012As best as we can glean from his brief on this issue, 3 Defendant appears to argue that the mental disease or disorder instruction should have been a separate element of each offense, as it was for felony murder, and not a separate instruction. {43} We begin by reminding Defendant that “New Mexico courts have repeatedly held thatthe defendant cannot be heard to complain if the trial court instructed the jury as he desired.” State v. Hamilton, 107 N.M. 186, 189 , 754 P.2d 857, 860 (Ct. App. 1988) (citing State v. Boeglin, 105 N.M. 247 , 731 P.2d 943 (1987)).

2005See Swafford v. State, 112 N.M. 3, 14 , 810 P.2d 1223, 1234 (1991) (instructing courts to look to statutory language, history, subject matter and relative punishment as "several guiding, but by no means exclusive, principles for divining legislative intent" to rebut the Blockburger presumption).

2005See Swafford v. State, 112 N.M. 3, 14 , 810 P.2d 1223, 1234 (1991) (instructing courts to look to statutory language, history, subject matter and relative punishment as "several guiding, but by no means exclusive, principles for divining legislative intent" to rebut the Blockburger presumption).

2003See Jackson, 92 N.M. at 462 , 589 P.2d at 1053 . {41} The State urges us to rely on the Wisconsin case of State v. Oimen, 184 Wis.2d 423 , 516 N.W.2d 399, 405 (1994), which held that a defendant can be charged with felony murder when his intended victim kills an accomplice.

2003See Jackson, 92 N.M. at 462 , 589 P.2d at 1053 . {41} The State urges us to rely on the Wisconsin case of State v. Oimen, 184 Wis.2d 423 , 516 N.W.2d 399, 405 (1994), which held that a defendant can be charged with felony murder when his intended victim kills an accomplice.

2003In Jackson, the Supreme Court stated, “[A]ny expansion of the felony-murder doctrine would fly directly against the progressive direction taken by this [C]ourt in Harrison.” Id. at 462 , 589 P.2d at 1053 .

2003In Jackson, the Supreme Court stated, “[A]ny expansion of the felony-murder doctrine would fly directly against the progressive direction taken by this [C]ourt in Harrison.” Id. at 462 , 589 P.2d at 1053 .

2003The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine.” Id. at 476 (emphasis in original).