STATE V. PRICE, 1986-NMCA-036, 104 N.M.
703, 726 P.2d 857 (Ct. App. 1986)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
JOHN WALTER PRICE, Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
1986-NMCA-036, 104 N.M. 703, 726 P.2d 857
APPEAL FROM THE DISTRICT COURT OF
GUADALUPE COUNTY, BENNY E. FLORES, Judge
Petition for Writ of Certiorari Quashed
October 15, 1986
JACQUELYN ROBINS, Chief Public Defender,
SUSAN GIBBS, Assistant Appellate Defender, Santa Fe, New Mexico, Attorneys for
Defendant-Appellant.
PAUL G. BARDACKE, Attorney General,
WILLIAM McEUEN, Assistant Attorney General, Santa Fe, New Mexico, Attorneys for
Plaintiff-Appellee.
BIVINS, J., wrote the opinion. WE CONCUR:
A. JOSEPH ALARID, Judge, PAMELA B. MINZNER, Judge.
WILLIAM W. BIVINS, Judge.
{1} 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.
{2} 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 {*704} 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.
{3} 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.
{4} 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.
{5} 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.
{6} 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.
{7} 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
{*705} not defined as requiring intent to
commit a felony).
{8} 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.
{9} 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.
{10} 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 N.M.S.A. 1978, UJI Crim. 28.10 (Repl. Pamp.1982)
(emphasis added).
{11} 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.
{12} 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.
{13} 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).
{14} Accordingly, England
entirely abandoned felony murder in 1957. Homicide Act, 1957, 5 & 6 Eliz.
2, c. 11, § 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. § 707-701 (Repl.
1976); 16A Ky. Rev. Stat. § 507.020 (Repl.1985). Other jurisdictions have
reduced the degree of murder and punishment for felony murder.
See
Alaska Stat. §§ 11.41.110 and 11.41.115 (1985); 9 La. Rev. Stat. Ann. § 14:30.1
(West Supp.1986); Minn. Stat. Ann. § 609.185 (West 1984); N.Y. Penal Law §
125.25 (Consol.1984); Ohio Rev. Code Ann. § 2903.04 (Page 1984 Supp.); 18 Pa.
Cons. Stat. Ann. § 2502 (Purdon 1983);
{*706}
Utah Code Ann. § 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.
{15} 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
abolish the applicability of the doctrine.
{16} In refusing to accept
attempted felony murder as a crime, we also have compared the burden of proof
imposed upon the state, if we recognized the crime, with the burden of proof
otherwise imposed. If, for instance, the state had charged defendant with
willful, deliberate, and premeditated murder, it would have had to prove not
only specific intent to murder but also, as an element of the substantive
offense, that defendant acted "with the deliberate intention to take away
the life" of the attendant. N.M.S.A. 1978, UJI Crim. 2.00 (Repl.
Pamp.1982). In comparison, in charging attempted felony murder, the state need
only prove specific intent to commit murder as an element of the attempt
charge.
Compare UJI Crim. 28.10 (attempt to commit a felony)
and
N.M.S.A. 1978, UJI Crim. 2.04 (Repl. Pamp.1982) (felony murder).
{17} Both instructions,
however, charge defendant with an attempt to commit first-degree murder. In the
first instruction, the state would be required to prove beyond a reasonable
doubt that defendant
deliberately intended to kill the victim. UJI Crim.
2.00 (emphasis added). Because felony murder has no
mens rea element,
the state would bear a lighter burden of proof when it elects to charge
attempted felony murder rather than attempted willful, deliberate, and
premeditated murder. Even though the state bears this lesser burden, it still
would be able to obtain an attempted first-degree murder conviction.
{18} We cannot sanction this
result. When attempted first-degree murder is charged, the state must meet its
full burden of proof.
{19} Finally, our recognition
of the crime of attempted felony murder simply is not necessary for the prosecution
of defendant. The state could have charged defendant with more appropriate
crimes. An enumeration of those crimes is not necessary. Suffice it to say that
the state was not required, most likely unwittingly, to carve out a new crime
in order to prosecute defendant. Other prosecutorial avenues were available.
{20} For the reasons stated
above, we hold that the crime of attempted felony murder does not exist.
Accordingly, we reverse defendant's conviction of attempted felony murder.
{21} We now turn to the
double jeopardy question raised. Count I charged defendant with "the
offense of Attempted Murder in the First Degree in that the Defendant
intentionally
attempted to cause the death of Leonard Foust during the commission of, or the
attempted commission of, Armed Robbery * * *." (Emphasis added.) The
information only mentioned N.M.S.A. 1978, Section 30-2-1 (Repl. Pamp.1984)
generally, and did not specify by letter or number any subsection. Defendant
argues that because the information did not specifically preclude other
theories of first-degree murder, jeopardy attached as to all theories. Thus,
defendant contends that his conviction should be reversed, and the case
remanded for retrial on, at most, the lesser included offense of attempted
second-degree murder.
{22} The information does
refer to intent to commit murder, which is pertinent to the deliberate murder,
but not to felony murder; nevertheless, when considered in light of the jury
instructions, defendant was charged in Count I only with attempted felony
murder. The trial court's instruction No. 2,
{*707}
on attempt to commit a felony, tracked UJI Crim.28.10.
See N.M.S.A.
1978, § 30-28-1 (Repl. Pamp.1984). Instruction No. 3 sets forth the elements of
felony murder which essentially follow UJI Crim. 2.04. The jury returned a
guilty verdict on Count I, attempted murder in the first degree.
{23} The crime of attempt to
commit a felony is a specific intent crime.
State v. Johnson. As we have
already pointed out, criminal intent is not required for felony murder. Thus,
when instructions Nos. 2 and 3 are read together, they form instructions on
attempted felony murder, which we have held does not exist.
{24} Because attempted felony
murder was not a proper charge, the trial court lacked jurisdiction over Count
I.
State v. Mabrey, 88 N.M. 227,
539 P.2d 617 (Ct. App.1975). Because
the trial court lacked jurisdiction, there is no basis for a claim of double
jeopardy.
Id.; Trujillo v. State, 79 N.M. 618,
447 P.2d 279 (1968);
State
v. Paris, 76 N.M. 291,
414 P.2d 512 (1966). Therefore, on remand, the state
is not precluded from refiling and charging defendant with attempt to commit
first-degree murder of the willful, deliberate and premeditated variety or with
any lesser included offense.
{25} This is not like
State
v. Johnson where the state charged defendant on an open charge of murder.
Defendant here was charged and tried under Count I for a nonexistent crime.
Therefore, the state is free to recharge him under an appropriate information.
{26} Following one of the
prosecutor's final questions on cross-examination of defendant, asking him to
identify the revolver in evidence, a juror interrupted the proceeding and
stated: "Your honor, if the court will permit me, there is a gun and
shells within reach of this individual. Is that safe?" The trial court
thanked the juror. The prosecutor said he had no further questions, and
defendant requested a short recess. Upon resumption of the proceedings,
defendant moved for a mistrial on the basis that the juror's comments
indicated, before having heard all of the evidence, a bias against defendant.
He also argued that the comment might prejudice other jurors. The trial court
denied the motion. Upon return, the trial court instructed the jury to
disregard the comment made by the juror and not to consider it in its
deliberations. Defendant called one more witness and rested. The state had no
rebuttal. The trial court instructed the jury, and counsel made their closing
summations.
{27} Defendant claims that
because the juror made the comment before the close of trial, the trial court's
instruction to keep an open mind and not to decide the case until submission
did not cure the juror impropriety. N.M.S.A. 1978, UJI Crim. 1.00 (Cum. Supp.1985).
Further, defendant argues that the comment defeats the presumption of
innocence. N.M.S.A. 1978, UJI Crim. 40.60 (Repl. Pamp.1982). Thus, claims
defendant, the comment clearly demonstrates that because the evidence in the
record provided no other basis for the juror's fear of defendant, the
"comment can only mean that [the juror] had already reached the conclusion
that [defendant] was guilty of the charges." He claims this misconduct
deprived him of a trial by a fair and impartial jury as guaranteed by the
United States and New Mexico Constitutions. U.S. Const. amends. VI and XIV, §
1; N.M. Const. art. II, §§ 14 and 18;
State v. McFall, 67 N.M. 260,
354
P.2d 547 (1960). Defendant claims the trial court erred in not granting a
mistrial.
{28} The decision whether to
grant a mistrial rests within the sound discretion of the trial court, and is
reviewable only for an abuse of that discretion.
State v. Simonson, 100
N.M. 297,
669 P.2d 1092 (1983);
State v. Gardner, 103 N.M. 320,
706 P.2d
862 (Ct. App.1985). The reason for this rule is that the trial court was
present, heard the comment, observed the context in which it was made, and
gauged its effect, if any, on other members of the jury. A reviewing court will
only interfere when there has been a clear showing of abuse.
{*708} {29} In cases involving improper communications with
the jury, New Mexico courts have applied the presumption of prejudice test.
See generally Budagher v. Amrep Corp., 100 N.M. 167, 667 P.2d 972 (Ct.
App.1983) (summarizing the cases and applying the test). Where there is an
improper communication with the jury by the trial court outside the defendant's
presence, a presumption of prejudice arises which the state has the burden of
overcoming. See, e.g., State v. McClure, 94 N.M. 440, 612 P.2d 232 (Ct.
App.1980). Similarly, any unauthorized contact between the prosecution and the
jury is presumptively prejudicial. State v. Ho'o, 99 N.M. 140, 654 P.2d
1040 (Ct. App.1982). In contrast, defendant complains of juror conduct, which occurred
in open court, in defendant's presence. On these facts, no presumption arose;
defendant has the burden of demonstrating prejudice.
{30} In State v. Cypher,
92 Idaho 159, 438 P.2d 904 (1968), a case cited by defendant, a juror
commented, during closing argument, to the effect that if defendants were
guilty they should throw themselves on the mercy of the court. While
acknowledging the impropriety of a juror expressing an opinion before
submission of the case, the court determined that the comment was
insufficiently indicative of bias so as to require reversal. Thus, a mere
expression of opinion by a juror, based on testimony and not indicating any
prejudice, does not suggest bias or prejudice against either party. Id.
{31} We believe the rule
adopted in State v. Cypher is appropriate to the circumstances of the
case before us. In this case, the juror's comment clearly came after most of
the evidence in the case had been presented. Only the testimony of an alibi
witness remained for presentation to the jury at the time of the juror's
comment. Much of the evidence which the juror had heard at the time of this
comment indicated that defendant was a dangerous person. This evidence was to
the effect that defendant may have shot the victim in the face at point-blank
range during the commission of an armed robbery. The jury had also heard
evidence of defendant's previous convictions for escape from jail, battery on a
police officer, conspiracy and unlawful taking of a vehicle. The juror's
comment, therefore, was apparently made with reference to evidence that he had
heard. The context in which the comment was made is not necessarily indicative
of juror bias or prejudice of the sort which would indicate that the juror was
not an impartial juror. Cypher. Although it was improper for the juror
to express, in open court, his assessment that defendant might be dangerous,
the comment is not indicative of bias or prejudice to the extent necessary to
require a mistrial. Cypher.
{32} Even though the other
jurors heard the comment, there is no indication that such a comment served to
prejudice the other jurors. Under the circumstances, the trial court's
admonition was adequate to cure any prejudice that may have arisen. See
State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967).
{33} The circumstances of the
present case are distinguishable from State v. Perea, 95 N.M. 777, 626
P.2d 851 (Ct. App.1981), where a newspaper containing an article about the case
prompted a juror to write a note of apology to the trial court. This court held
that the note, in which the juror expressed the "'hope'" that her
"'mistake will not cause a mistrial or undue acquittal'" was
susceptible of only one meaning: "there existed a preconceived opinion of
defendant's guilt in one juror's mind, and that opinion was made known to every
other juror at a stage of trial when only the State's case had been
heard." Id. at 779, 626 P.2d at 853. We held that a mistrial should
have been granted. The comment here came at or near the conclusion of all the
evidence, did not evince an opinion as to defendant's guilt, and was supported
by the evidence.
{34} In conclusion, we hold
that, although the juror's conduct was improper, it did not sufficiently
demonstrate bias or prejudice so as to require a mistrial.
{*709} INEFFECTIVE
ASSISTANCE OF COUNSEL
{35} Twelve jurors and one
alternate were chosen to decide this case. Although defense counsel moved for a
mistrial, based on the juror's comment discussed above, he did not ask the
trial court to voir dire the juror or to excuse the juror. Defendant argues on
appeal that counsel's omissions amounted to ineffective assistance of counsel.
He raises this issue as fundamental error.
{36} The benchmark for
analyzing ineffectiveness claims is "whether counsel's conduct so undermined
the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result." Strickland v. Washington,
466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984). In
order to establish ineffectiveness, defendant must satisfy a two-pronged test. Id.
First, defendant must show that counsel's performance was deficient. Deficient
performance is measured in New Mexico by "'the skill, judgment and
diligence of a reasonably competent defense attorney.'" State v. Orona,
97 N.M. 232, 233, 638 P.2d 1077, 1078 (1982). Second, defendant must make a
showing of prejudice. Prejudice is measured by "whether there is a
reasonable probability that, absent the errors, the fact-finder would have had
a reasonable doubt respecting guilt." Strickland v. Washington, 466
U.S. at 695, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698. In determining
prejudicial effect, we must consider "the totality of the evidence before
the judge or jury." Id.
{37} Although defense counsel
failed to request voir dire of the juror whose conduct we have reviewed, or
that the juror be excused, counsel did move for a mistrial. Our review of the
record indicates the comment was made with reference to the evidence and did
not indicate sufficient bias to justify a mistrial. Under these circumstances,
we are not persuaded that counsel's performance was deficient as opposed to
counsel's making an error in judgment. The latter is not sufficient. See
State v. Orona.
{38} Defendant, however,
clearly fails to satisfy the second prong of the Strickland test. In
order to determine prejudice, we must analyze the "totality of the
evidence." As the state argues, the evidence presented against defendant
was overwhelming. Therefore, defendant did not show that "but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
{39} In holding that
defendant's counsel was ineffective, we recognize that in some situations
counsel's acts or failures to act are presumptively prejudicial. Strickland
v. Washington; United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039,
2047 n.24, 80 L. Ed. 2d 657, 667-68 n.24 (1984). The following are exemplary of
situations giving rise to a presumption of prejudice: actual conflicts of
interest; counsel's total absence from a proceeding; and counsel's failure to
represent the client during a critical stage of the trial. United States v.
Cronic. In these situations, counsel has breached his fundamental duty of
loyalty to his client, or failed to provide adversarial representation, and the
resulting prejudice defies accurate measurement.
{40} Counsel's failures here
to act were not presumptively prejudicial. He did not breach a duty of loyalty
to defendant. He was present, and he moved for a mistrial. His conduct does not
fit within the situations which give rise to a presumption of prejudice.
Therefore, we reject the claim of ineffective assistance of counsel.
{41} We affirm the conviction
of armed robbery with firearm enhancement. We reverse the conviction of
attempted felony murder and remand for further proceedings consistent with this
opinion.
WE CONCUR: A. JOSEPH ALARID, Judge, PAMELA B. MINZNER, Judge.