New Mexico Code § 30-2-1

A. 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.
Whoever commits murder in the first degree is guilty of a capital felony.
B. Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.
Murder in the second degree is a lesser included offense of the crime of murder in the first degree.
Whoever commits murder in the second degree is guilty of a second degree felony resulting in the death of a human being.
History: 1953 Comp., § 40A-2-1, enacted by Laws 1963, ch. 303, § 2-1; 1980, ch. 21, § 1; 1994, ch. 23, § 1.
Cross references. — For attempt to commit a felony, see 30-28-1 NMSA 1978.
For homicide by vehicle, see 66-8-101 NMSA 1978.
For homicide instructions, see UJI 14-201 NMRA et seq.
For instruction on the essential elements of felony murder, see UJI 14-202 NMRA.
The 1994 amendment, effective July 1, 1994, added "resulting in the death of a human being" at the end of the last paragraph of Subsection B.
Applicability. — Laws 1994, ch. 23, § 4 provided that the provisions of Laws 1994, ch. 23, § 1 apply only to persons sentenced for crimes committed on or after July 1, 1994.
I. GENERAL CONSIDERATION.
Depraved mind murder. — A number of elements must be considered in appraising whether a defendant has displayed the requisite depraved mind pursuant to Section 30-2-1A(3) NMSA 1978. Conviction requires that more than one person be endangered by the defendant's act. The defendant's act must be intentional and of an extremely reckless character. The defendant must possess subjective knowledge that his act was "greatly dangerous to the lives of others". State v. Dowling , 2011-NMSC-016, 150 N.M. 110, 257 P.3d 930.
Courts have distinguished depraved mind murder by the number of persons exposed to danger by a defendant's extremely reckless behavior. In general, depraved mind murder convictions have been limited to acts that are dangerous to more than one person. In addition to the number of people endangered, courts have construed depraved mind murder as requiring proof that the defendant had "subjective knowledge" that his act was greatly dangerous to the lives of others. This requirement of subjective knowledge serves as proof that the accused "acted with 'a depraved mind' or 'wicked or malignant heart' and with utter disregard for human life". To further narrow the class of killings eligible for depraved mind murder, courts have concluded "that the legislature intended the offense of depraved mind murder to encompass an intensified malice or evil intent." In describing that intensified malice, courts have defined the phrase "depraved mind" used in the statute and uniform jury instructions as "[a] corrupt, perverted, or immoral state of mind constituting the highest grade of malice [that equates] with malice in the commonly understood sense of ill will, hatred, spite or evil intent". State v. Reed , 2005-NMSC-031, 138 N.M. 365, 120 P.3d 447.
Double jeopardy. — Felony murder has its own particular double jeopardy analysis. If the predicate felony and felony murder are unitary, then the predicate felony must be dismissed because it is subsumed within the elements of felony murder. State v. Bernal , 2006-NMSC-050, 140 N.M. 644, 146 P.3d 289.
Convictions of attempted murder and aggravated battery violated double jeopardy. — Where defendant was convicted of attempted murder and aggravated battery with a deadly weapon; defendant's conduct was unitary; the indictment for attempted murder required the state to prove that defendant attempted to commit murder and "began to do an act which constituted a substantial part of murder" but failed to commit the offense; the indictment for aggravated battery required the state to prove that defendant touched or applied force to the victims with a deadly weapon intending to injure the victims; the state's theory of the case to support both charges was that defendant beat, stabbed, and slashed the victims; and the state offered the same testimony to prove both charges, the aggravated battery elements were subsumed within the attempted murder elements and defendant's convictions violated the prohibition against double jeopardy. State v. Swick , 2012-NMSC-018, 279 P.3d 747, rev'g 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, overruling State v. Armendariz , 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.
Intent. — "Deliberate intention" is defined as, arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. Intent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence. State v. Sosa , 2000-NMSC-036, 129 N.M. 767, 14 P.3d 32.
Corpus delicti. — In homicide cases the corpus delicti is established upon proof of the death of the person charged in the information or indictment, and that the death was caused by the criminal act or agency of another. The corpus delicti of a particular offense is established simply by proof that the crime was committed; the identity of the perpetrator is not material. State v. Sosa , 2000-NMSC-036, 129 N.M. 767, 14 P.3d 32.
Jury's specification of death penalty is not freakish, capricious, or arbitrary where defendant killed the victim in a particularly brutal fashion by striking her in the head three to five times with a sledgehammer and this occurred after the defendant kidnapped the victim by deception, chased her as she attempted to escape and stabbed her two inches deep in the chest with a knife when she struggled, and completely disrobed the victim in an attempt to rape her. State v. Fry , 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516 (decided under prior law).
Fair trial. — Where the prosecutor did no more than repeat what the judge had already said to the jury, that is, that the photographs of the victim contained more graphic material than the jurors were allowed to see, and relied on reasonable inferences from the medical investigator's testimony about the graphic nature of the wounds, the prosecutor did not introduce any new information to the jury, and viewing this isolated remark in context with the judge's comments to the jury, with the testimony of the medical investigator, and with the overwhelming evidence of guilt, the remark did not result in a verdict based on passion or prejudice or otherwise deprive defendant of a fair trial. State v. Fry , 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516.
Constitutionality. — Because the statute and court decisions clearly indicate that the element of deliberation is what distinguishes first degree murder from second degree murder, and the distinction between first and second degree murder has been clearly enunciated by the supreme court, this section and former Section 30-2-2 NMSA 1978, relating to malice (now repealed), are not unconstitutional on the grounds that they make impossible an ascertainable distinction between first and second degree murder. State v. Valenzuela , 1976-NMSC-079, 90 N.M. 25, 559 P.2d 402.
New Mexico Const., art. IV, § 18, relating to the amendment of statutes, did not apply to 40-24-4, 1953 Comp., the former felony murder statute, which was enacted prior to adoption of the constitutional provision. State v. Hines , 1967-NMSC-237, 78 N.M. 471, 432 P.2d 827.
Open charge of murder gives defendant notice that he must defend against a charge of unlawfully taking a human life. State v. Stephens , 1979-NMSC-076, 93 N.M. 458, 601 P.2d 428, overruled in part on other grounds by State v. Contreras , 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228.
Double jeopardy. — Defendant's right to freedom from double jeopardy was not violated by punishment for attempted first degree murder, aggravated battery with a deadly weapon, and criminal sexual penetration. State v. Traeger , 2000-NMCA-015, 128 N.M. 668, 997 P.2d 142, aff'd in part , rev'd in part on other grounds , 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518.
Element of intent is seldom susceptible to direct proof, since it involves the state of mind of the defendant, and it thus may be proved by circumstantial evidence. State v. Manus , 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v. State , 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.
Elements of depraved mind murder. — The elements that are required to support a depraved mind murder conviction are that more than one person must be endangered by defendant's act; defendant's act must be intentional and extremely reckless; defendant must possess subjective knowledge that defendant's act was greatly dangerous to the lives of others; and the act must encompass an intensified malice and evil intent. State v. Dowling , 2011-NMSC-016, 150 N.M. 110, 257 P.3d 930.
Sufficient evidence of depraved mind murder. — Where defendant drove a truck at approximately 80 miles per hour for approximately one mile on a four-lane suburban street during the middle of a weekday, striking and injuring a jogger on the street's raised median, then driving onto a sidewalk and striking and killing a second pedestrian; all the while speeding and weaving in and out of traffic, including into oncoming traffic, almost colliding with other vehicles, until defendant crossed all four lanes of the street and finally crashed into a boulder on the raised median, the evidence was sufficient to support defendant's conviction of depraved mind murder. State v. Dowling , 2011-NMSC-016, 150 N.M. 90, 257 P.3d 930.
Act indicating depraved mind not affected by intent to kill particular individual. — A murder committed by an act which indicates a depraved mind is a first degree murder. The existence of an intent to kill any particular individual does not remove the act from this class of murder. State v. Sena , 1983-NMSC-005, 99 N.M. 272, 657 P.2d 128.
For legislative history of term "human being" in definition of murder, as found throughout homicide statutes. State v. Willis , 1982-NMCA-151, 98 N.M. 771, 652 P.2d 1222.
Fair trial. — Defendant's right to fair trial was not violated when, in a prosecution for first degree murder, the state secured an instruction for the lesser included offense of second degree murder and then argued against this lesser included offense at closing, contending that the evidence could only support a first degree murder conviction. State v. Armendarez , 1992-NMSC-012, 113 N.M. 335, 825 P.2d 1245.
Cumulative punishment is precluded for shooting at a vehicle and homicide. — New Mexico jurisprudence precludes cumulative punishment for the offenses of causing great bodily harm to a person by shooting at a motor vehicle and the homicide resulting from the penetration of the same bullet into the same person. State v. Montoya , 2013-NMSC-020, 306 P.3d 426, overruling State v. Gonzales , 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023, State v. Dominguez , 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563 and State v. Riley , 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656.
Where defendant and defendant's companions were accosted by a rival gang in front of defendant's family home, guns were pulled on both sides and defendant's sibling was severely wounded by gunshots in the leg and abdomen; while defendant's group were trying to help defendant's sibling in the driveway and stop the bleeding from the gunshot wounds, the person in the rival gang who had been shooting at defendant and defendant's companions returned in a Ford Expedition; when defendant saw gunfire coming from the Expedition, defendant ran into the house and retrieved an AK-47 rifle and began shooting at the Expedition; the driver of Expedition was shot seven times and died; the jury convicted defendant of voluntary manslaughter and shooting into a motor vehicle resulting in great bodily harm, the Double Jeopardy Clause protected defendant from being punished both for the homicide of the victim and for shooting into a vehicle causing great bodily harm to the victim where both convictions were premised on the unitary act of shooting the victim. State v. Montoya , 2013-NMSC-020, 306 P.3d 426, overruling State v. Gonzales , 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023, State v. Dominguez , 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563 and State v. Riley , 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656.
Legislature intended to provide multiple punishments for the offenses of second degree murder and shooting into or from a vehicle. State v. Mireles , 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
A consideration of second degree murder and shooting from a motor vehicle shows that the sections setting forth these crimes are designed to combat distinct evils, which provides further indicia of legislative intent confirming the presumption that the offenses are separately punishable. State v. Mireles , 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Conviction of lesser offense only if supported by evidence. — No statute which purports to authorize an appellate court to sustain a conviction unsupported by the evidence may be approved, and accordingly Laws 1937, ch. 199, § 1 (not compiled), is invalid to the extent that it authorizes a conviction for a lesser included homicide offense when no evidence was contained in the record to prove the essentials of the elements of the offense of which the defendant stands convicted. Smith v. State , 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.
Unsupported conviction unconstitutional. — A conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged violates due process. Smith v. State , 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.
"Torture". — Murder by strangling and suffocation was not murder by "torture," which was conclusively made first degree murder by Laws 1907, ch. 36, § 1 (40-24-4, 1953 Comp.). State v. Bentford , 1935-NMSC-051, 39 N.M. 293, 46 P.2d 658 (decided under prior law).
Conviction of principal in second degree. — A principal in the second degree was guilty of crime the same as the principal in the first degree, and might be tried and convicted, even though the latter has been acquitted or convicted of a lesser degree of the offense. State v. Martino , 1920-NMSC-069, 27 N.M. 1, 192 P. 507.
Double jeopardy. — Defendant's convictions under two theories of first degree murder did not result in contradictory convictions in violation of due process and double jeopardy principles because the two crimes were not inherently or factually contradictory and the jury could have concluded that defendant was guilty under both alternatives, given the evidence. State v. Reyes , 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948.
Guilty verdicts for two alternative theories of first degree murder should be regarded, for sentencing purposes, as a general verdict of first degree murder based on the two theories, thereby avoiding multiple punishments. State v. Reyes , 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948.
Convictions of defendant for both second degree murder and intentional child abuse resulting in death violated his right not to be placed in double jeopardy. State v. Mann , 2000-NMCA-088, 129 N.M. 600, 11 P.3d 564, aff'd , 2002-NMSC-001, 131 N.M. 459, 39 P.3d 124.
Defendant's conviction for both shooting into an occupied motor vehicle under Section 30-3-8 NMSA 1978 and first degree murder under this section was not double jeopardy because the legislature intended to have separate punishments for similar conduct that can result in a violation of both statutes. State v. Gonzales , 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023.
There was no double jeopardy violation for convictions for second degree murder and shooting at or from a motor vehicle because the testimony at trial permitted the inference that each conviction was based on distinct conduct and because the two statutes evince legislative intent to impose separate punishments for each crime. State v. Mireles , 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.
Conviction for shooting at a motor vehicle under Section 30-3-8B NMSA 1978 did not preclude the state from seeking a further conviction for first or second degree murder under this section. State v. Garcia , 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, cert. denied, 2005-NMCERT-004, 137 N.M. 454, 112 P.3d 1111.
Homicide charge not merged. — The homicide resulting from the great bodily harm was sufficient evidence for the jury to find aggravated sodomy and first degree kidnapping, and there was no merger with the charge of murder of which defendant was acquitted. State v. Melton , 1977-NMSC-014, 90 N.M. 188, 561 P.2d 461.
Aggravated burglary and first degree murder not unitary. — First degree murder and aggravated burglary were not unitary acts, and imposition of sentences for both offenses did not violate double jeopardy. State v. Livernois , 1997-NMSC-019, 123 N.M. 128, 934 P.2d 1057.
Merger of lesser offense found. — Where a defendant was charged with numerous counts of child abuse resulting in death or great bodily injury and with murder, but the state did not charge or offer proof that the acts of child abuse arose as separate and distinct episodes, the rule of merger precluded the defendant's conviction and sentence for a crime that is a lesser included offense of a greater charge upon which defendant has also been convicted. Although the state properly may charge in the alternative, where the defendant was convicted of one or more offenses which were merged into the greater offense, he could be punished for only one. State v. Pierce , 1990-NMSC-049, 110 N.M. 76, 792 P.2d 408 (events occurred prior to 1989 amendment to Section 30-6-1 NMSA 1978).
Bail. — To be admitted to bail on habeas corpus petition, if proof of capital crime is plain and presumption great, court would not weigh it against other, apparently contradictory, facts and circumstances. Ex parte Wright , 1929-NMSC-093, 34 N.M. 422, 283 P. 53.
Prosecutor's comments on defendant's story appropriate. — Prosecutor's comments on the veracity of defendant's story did not deprive defendant of a fair trial. If after a case is presented, the evidence is essentially reduced to which of two conflicting stories is true, a party may reasonably infer, and thus argue, that the other side is lying. State v. Aguilar , 1994-NMSC-046, 117 N.M. 501, 873 P.2d 247, cert. denied, 513 U.S. 859, 115 S. Ct. 168, 130 L. Ed. 2d 105, and cert. denied, 513 U.S. 865, 115 S. Ct. 182, 130 L. Ed. 2d 116 (1994).
II. DELIBERATION AND PREMEDITATION.
Substantial evidence of deliberate intention. — A deliberate intention refers to the state of mind of the defendant, is rarely subject to proof by direct evidence, and often must be inferred from all the facts and circumstances of the killing. State v. Astorga , 2015-NMSC-007.
Where law enforcement officer was murdered during a traffic stop, evidence established that defendant had a motive to kill the officer, wanting to avoid arrest because defendant knew that he was wanted on an outstanding warrant, that defendant initially complied with the officer when the officer pulled defendant's vehicle over, that defendant then retrieved his gun while he waited for the officer to approach the vehicle, and when the officer neared the window, defendant fired the gun twice at the officer from point-blank range, that defendant, after the killing, made incriminating statements about having "blasted that cop", there was substantial evidence of defendant's deliberate intention to take away the life of the law enforcement officer. State v Astorga , 2015-NMSC-007.
Where the evidence at trial established that defendant threatened the victim during a confrontation the day prior to the murder and cell phone records revealed that defendant sought out the victim the same morning of the murder, that the victim suffered approximately ninety stab wounds during the attack, indicating that the attack upon victim spanned a prolonged period of time, and that defendant disposed of the murder weapon and clothes he wore during the attack, there was sufficient evidence of defendant's deliberate intent to murder the victim. State v. Smith , 2016-NMSC-007.
Sufficient evidence of first-degree deliberate murder. — There was sufficient evidence to allow a trier of fact to reasonably infer that the defendant killed the victim with the deliberate intention to take away her life, where the physical evidence containing a full DNA profile matching defendant was found on the victim's body in semen on her thigh and under the fingernails of her right hand, and also on the paver stone presumed to be the murder weapon, and where evidence of deliberation was established by evidence of a prolonged struggle and a large number of wounds to the victim. State v. Thomas , 2016-NMSC-024.
Sufficient evidence of first-degree willful and deliberate murder. — Where defendant was charged with first-degree murder (willful and deliberate), related to the killing of his estranged wife, there was sufficient evidence to support defendant's first-degree murder conviction where, at trial, the state presented testimony establishing that strangulation was a likely cause of death that defendant's training as a police officer familiarized him with chokeholds, that defendant and the victim had an abusive relationship where the victim repeatedly informed friends and family of her fear of defendant and concern that he would hurt her or kill her, and that defendant and the victim were involved in a contentious divorce with much dispute about the custody of their children. State v. Farrington , 2020-NMSC-022.
Sufficient evidence of deliberate murder. — Where defendant was playing with a folding pocket knife at a party; a fight broke out between defendant and the victim; the victim ran away bleeding heavily and later died at a hospital; defendant made the statement that "I think I stabbed that fool seven or eight times. I stabbed that fool"; defendant and defendant's friends acted "fine, like nothing, like high-fiving each other"; defendant stabbed the victim thirteen times in the left side of the chest; and the wounds were consistent with a single-edged knife, the evidence was sufficient to support defendant's conviction of willful and deliberate murder. State v. Guerra , 2012-NMSC-027, 284 P.3d 1076.
Where an altercation occurred between defendant and the victim; the victim was kneeling on the ground as defendant stood over the victim pointing a rifle at the victim's head; the victim attempted to push the rifle away from the victim's head twice and defendant repositioned the rifle so the rifle it pointed directly at the victim's face; as defendant pointed the rifle at the victim, the victim was pleading with defendant; a witness testified that defendant fired four close range shots directly at the victim; there were five wounds in the victim's body, four of which had penetrated the victim's body; and within an hour after the shooting, defendant interacted with a witness who testified that defendant did not appear to be intoxicated and that defendant made a telephone call to tell someone that defendant would not be at work for a week because defendant was in a "heap of trouble", there was sufficient evidence for a jury to find that defendant acted with deliberate intent when defendant killed the victim. State v. Largo , 2012-NMSC-015, 278 P.3d 532.
Jury could reasonably find that defendant acted with deliberate intent because the physical evidence of the stabbing of the victim showed that the attack was part of a prolonged struggle and that the victim was stabbed multiple times as she tried to escape, and because defendant later made statements that he had hurt, stabbed and murdered a woman. State v. Duran , 2006-NMSC-035, 140 N.M. 94, 140 P.3d 515.
Where defendant was embittered by the victim's rejection of defendant and the breakup of the relationship between defendant and the victim; defendant tried to hurt the victim by making scandalous accusations to the victim's ex-wife and the police; defendant made methodical plans for a trip from Nevada to New Mexico in pursuit of the victim; defendant surreptitiously followed the victim to the victim's home town in New Mexico and stalked the victim over a period of days; defendant ascertained that the victim was taking an alcohol server class at a local motel, inquired about the time and place of the class, and ascertained when defendant could get the victim alone during a class recess; defendant deliberately lay in wait for the victim; defendant carried a screwdriver with him to the fatal confrontation with the victim; defendant stabbed the victim twenty-one times with the screwdriver; after the stabbing, defendant immediately and calmly walked away and fled the scene of the murder; defendant tried to deceive and evade the authorities; and defendant attempted to concoct a false alibi, the evidence was sufficient to support the jury's determination that defendant committed the murder with deliberate intent to kill. State v. Flores , 2010-NMSC-002, 147 N.M. 542, 226 P.3d 641.
Sufficient evidence of willful and deliberate murder. — In defendant's trial for first-degree murder for the killing of a police officer and aggravated fleeing, the state presented sufficient evidence for a rational jury to find beyond a reasonable doubt that defendant manifested a deliberate intention to kill the officer, where the evidence established that during a traffic stop, the officer attempted to approach the vehicle when the vehicle suddenly accelerated out of a parking lot, and where defendant later brought the vehicle to a stop and waited for the pursuing officer to catch up, and when the officer approached the vehicle a second time, defendant fired his gun four times at the officer. Moreover, testimony from defendant's accomplice established that prior to the shooting, defendant moved his pistol from a hidden position into a firing position, that defendant stated that he would kill an officer to avoid going back to prison, and that defendant shot the officer twice, paused for a moment, and then shot the officer two more times, which was probative of deliberation and intent to kill. State v. Romero , 2019-NMSC-007.
Sufficient evidence to prove identity in first-degree murder trial. — In defendant's trial for first-degree murder, where identity was at issue, there was sufficient evidence to support defendant's conviction where the victim's wife and three children witnessed the shooting of victim and testified that defendant was the shooter, where a bystander also testified that she witnessed defendant shoot the victim while he was sitting in a vehicle, and where the state presented physical evidence including a latent print of defendant's palm on the vehicle in which the victim was murdered. State v. Ramirez , 2018-NMSC-003.
Insufficient evidence of deliberate murder. — Where defendant was charged with attempted first degree murder after attending a party that ended with one person dead and the victim seriously injured from multiple gunshot wounds; after arriving at the party, defendant waited outside the hall while defendant's friend went into the hall; defendant was carrying a revolver and the friend was carrying a semiautomatic pistol; when a fight erupted in the hall, defendant walked to the entrance of the hall; defendant's friend shot at the victim several times with the pistol; several witnesses, including the victim, testified that they did not see defendant during the fight; after the shooting started, defendant was seen running with the friend away from the fight as other people were firing at them; defendant returned home and hid the pistol; defendant's friend told the police that defendant had admitted shooting the victim, but at trial denied that defendant had admitted shooting the victim; there was no evidence that defendant had a motive to kill the victim; defendant had a concealed weapon permit; other guests at the party were also carrying weapons; and defendant lied to the police and told one friend not to talk about what happened, the evidence was insufficient to demonstrate that defendant acted willfully, deliberately and with premeditated intent to kill the victim. State v. Slade , 2014-NMCA-088, cert. granted, 2014-NMCERT-008.
Where defendant and the victims had been drinking and taking drugs earlier in the day; while defendant and the victims were aimlessly driving around, drinking and taking more drugs, defendant, without any evidence of motive, shot and killed the driver and when the passenger, who was sitting in the front seat, screamed and turned around to look at defendant, defendant shot and wounded the passenger; and although multiple shots were fired in quick succession, each victim was shot only once, there was insufficient evidence of deliberation to support defendant's conviction for attempted first degree murder of the passenger. State v. Tafoya , 2012-NMSC-030, 285 P.3d 604.
Evidence of condition of mind of accused at time of crime may be introduced, not only for the purpose of proving the inability to deliberate, but also to prove that the conditions were such that defendant did not in fact, at the time of the killing, form a deliberate intent to kill. State v. Balderama , 2004-NMSC-008, 135 N.M. 329, 88 P.3d 845.
Schizophrenia did not limit defendant's capacity to form deliberate intent to kill. — Where defendant was convicted of first-degree murder and third-degree criminal sexual penetration, based on defendant's admission that he killed the victim and then had sexual intercourse with the victim after she died, and where defendant argued that schizophrenia limited his capacity to form the deliberate intent required to sustain a first-degree murder conviction, evidence that defendant took conscious steps to walk through his house to retrieve a knife, address the victim in a theatrical manner saying that he had a "present" for her, and finally manipulate her neck before stabbing her was sufficient for a rational jury to find beyond a reasonable doubt the essential facts required for conviction of first-degree, deliberate intent murder. State v. Martinez , 2021-NMSC-012.
Exclusion of expert testimony held error. — The trial court committed reversible error when it sua sponte excluded the expert testimony of defendant's sole witness, a neuropsychologist, who was prepared to testify regarding defendant's neurological deficits, which defendant contends were relevant to whether he formed the deliberate intent to kill. State v. Balderama , 2004-NMSC-008, 135 N.M. 329, 88 P.3d 845.
Period of deliberation. — Murder in the first degree is a willful, deliberate and premeditated killing, and although a deliberate intention means an intention or decision arrived at after careful thought and after a weighing of the reasons for the commission of the killing, such a decision may be reached in a short period of time. State v. Lucero , 1975-NMSC-061, 88 N.M. 441, 541 P.2d 430.
Burden of proof. — The burden is on the state to prove that a defendant not only had an opportunity to form deliberate intent but did in fact form a deliberate intent to kill. State v. Motes , 1994-NMSC-115, 118 N.M. 727, 885 P.2d 648.
Transferred intent to kill. — In a homicide case where A shot at B, and the bullet struck C and killed him, the malice or intent followed the bullet. State v. Carpio , 1921-NMSC-063, 27 N.M. 265, 199 P. 1012.
Charge that murder was done willfully, deliberately and premeditatedly and with malice aforethought was sustained by proof that it was committed with a mind imbued with those qualities, though they were directed against a person other than the one killed. State v. Carpio , 1921-NMSC-063, 27 N.M. 265, 199 P. 1012.
Transferred intent applicable to murder and attempted murder. — The doctrine of transferred intent applies to both murder and attempted murder. State v. Gillette , 1985-NMCA-037, 102 N.M. 695, 699 P.2d 626.
Period of time to abandon intent. — Just as it requires no period of time to form a deliberate intent to kill, so too, it does not require a certain period of time to abandon a pre-existing depraved mind. Although the initial act of defendant shooting indiscriminately at two people at two different times could have been found by the jury to be a depraved-mind action and one done with a wicked and malignant heart, these actions did not wound or kill the victim or anyone else. It is the criminal intent at the time of the commission of the crime that is determinative. State v. Hernandez , 1994-NMSC-045, 117 N.M. 497, 873 P.2d 243.
Question of deliberation and premeditation in murder case was for jury to determine upon a consideration of all the surrounding circumstances tending to show the relation of the parties to each other and the animus of the accused toward the deceased. State v. Smith , 1966-NMSC-128, 76 N.M. 477, 416 P.2d 146.
Direct or circumstantial evidence. — While deliberation and premeditation are essential elements of murder in the first degree, these, like other elements, may be shown by direct evidence or by circumstances from which their existence may be inferred by the jury. State v. Montoya , 1963-NMSC-098, 72 N.M. 178, 381 P.2d 963.
The essential elements of murder in the first degree, including the elements of deliberation and premeditation, may be shown not only by direct evidence but by circumstances from which their existence may be inferred. State v. Smith , 1966-NMSC-128, 76 N.M. 477, 416 P.2d 146.
Evidence of wounds inflicted in fight was sufficient to support a finding of premeditation, intent to kill and malice. State v. Garcia , 1956-NMSC-058, 61 N.M. 291, 299 P.2d 467.
Striking victim with car. — In case where the defendant struck the deceased with his automobile after an argument between the two and after deceased was seen to strike defendant's mother, the facts and surrounding circumstances warranted a finding by the jury that the killing was malicious, deliberate and premeditated. State v. Montoya , 1963-NMSC-098, 72 N.M. 178, 381 P.2d 963.
Forcing car off road. — From evidence that in the course of a high speed police chase defendant made a deliberate sharp turn into the police car, forcing it off the road while driving at a speed of 110 m.p.h., the jury could reasonably have inferred that defendant intended to murder the police officers. State v. Bell , 1972-NMCA-101, 84 N.M. 133, 500 P.2d 418 (affirming conviction of assault on police officers with intent to commit a violent felony).
Shooting deceased's fleeing wife. — Where defendant's shooting of decedent's wife occurred within a second or so after the shooting of decedent and as she sought to escape, shooting her under the circumstances had real probative value upon the issues of deliberation and intent, and constituted evidence of a preconceived plan to kill her as well as her husband. State v. Lucero , 1975-NMSC-061, 88 N.M. 441, 541 P.2d 430.
Premeditation is a necessary element in proof of second degree murder. State v. White , 1956-NMSC-038, 61 N.M. 109, 295 P.2d 1019.
III. FELONY MURDER.
Requirements that a felony must meet before it can be a predicate to felony murder. — There must be a causal relationship between the felony and the homicide, the felony must be independent of or collateral to the homicide, and the felony must be inherently or foreseeably dangerous to human life. State v. Groves , 2021-NMSC-003.
The felonious purpose test. — A crime's objective is its felonious purpose, and if that purpose is something other than "to injure or kill," the felony may serve as a predicate felony to felony murder. State v. Groves , 2021-NMSC-003.
Aggravated fleeing a law enforcement officer does not violate the collateral felony rule and may serve as a predicate felony for felony murder. — The felonious purpose of the aggravated fleeing statute is to flee from law enforcement to avoid apprehension, not to endanger or harm someone. Aggravated fleeing, therefore, does not violate the collateral felony rule and may serve as a predicate felony for felony murder if the defendant acted with the requisite mens rea. State v. Groves , 2021-NMSC-003.
District court erred in concluding that aggravated fleeing may not serve as a predicate felony for felony murder. — Where defendants stole a van from an Albuquerque business, and rather than stopping when they realized that police were in pursuit, they fled, and where, during the pursuit through residential neighborhoods, defendants, driving at speeds of up to 78 mph in a 35 mph zone, ran a stop sign and hit another car resulting in the deaths of two people, the district court erred in concluding that aggravated fleeing a law enforcement officer may not serve as the predicate felony for a felony murder charge. Aggravated fleeing a law enforcement officer may serve as a predicate felony for felony murder because it satisfies the causal requirement, the collateral felony rule, and the requirement that the felony be inherently or foreseeably dangerous to human life. State v. Groves , 2021-NMSC-003.
Sufficient evidence. — Where the non-conflicting testimony of witnesses established that while defendant was attending a party, defendant visited the victim's apartment several times to buy marijuana; when the supply of marijuana was exhausted, defendant gestured to a screwdriver in defendant's waistband and said that defendant was going to "jack" the victim; defendant went to the victim's apartment, started punching the victim and held the screwdriver against the victim's neck; when the victim reached for a gun, defendant took a gun away from the victim, put the gun to the victim's head and pulled the trigger; when the gun failed to fire, defendant pulled the trigger a second time and shot and killed the victim; defendant returned to the party with the gun in defendant's hand; and defendant was showing off the gun and stated that defendant had taken the gun from the victim and "blasted" the victim, the evidence was sufficient to support the finding that defendant committed the predicate offense of armed robbery and then intentionally killed the victim during the robbery. State v. Garcia , 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057.
The felony murder statute expresses a clear legislative intent that a killing during the commission of a felony constitutes unitary conduct in every case and a conviction of both the predicate felony and felony murder violates double jeopardy. State v. Frazier , 2007-NMSC-032, 142 N.M. 120, 164 P.3d 1.
Where there is only one first degree felony conviction which also serves as the predicate felony for a felony murder conviction, the legislature did not intend to allow a separate conviction for that same felony. State v. Frazier , 2007-NMSC-032, 142 N.M. 120, 164 P.3d 1.
It is per se fundamental error for aggravated battery to be used as an alternative predicate for felony murder. Campos v. Bravo , 2007-NMSC-021, 141 N.M. 801, 161 P.3d 846.
Not all underlying felonies constitute an aggravating circumstance. In fact, the only underlying felonies for felony murder that can serve as an aggravating circumstance for capital sentencing are kidnapping, criminal sexual contact of a minor, and criminal sexual penetration. State v. Fry , 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516.
When state proves elements of felony murder, it has proved all of the elements of the capital felony of first degree murder. State v. Fry , 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516.
Eligibility for death penalty. ---New Mexico requires an aggravating circumstance, in addition to the commission of felony murder, in order to be eligible for the death penalty. State v. Fry , 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516 (decided under prior law).
Limitations to felony murder doctrine. — While the wording of this section is broad, New Mexico has created five main limitations to the felony murder doctrine. State v. O'Kelly , 2004-NMCA-013, 135 N.M. 40, 84 P.3d 88, cert. quashed, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 578.
All of New Mexico's felony murder limitations work together to ensure that defendants convicted of felony murder have a culpable mental state consistent with the legislature's retributive and punitive goals. State v. O'Kelly , 2004-NMCA-013, 135 N.M. 40, 84 P.3d 88, cert. quashed, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 578.
Accomplices. — A defendant cannot be charged with felony murder based on the lethal acts of another person who is not an accomplice. State v. O'Kelly , 2004-NMCA-013, 135 N.M. 40, 84 P.3d 88, cert. quashed, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 578.
Defendant may not be held liable for depraved mind murder when he or his accomplice did not commit the lethal act that killed an innocent bystander. State v. O'Kelly , 2004-NMCA-013, 135 N.M. 40, 84 P.3d 88, cert. quashed, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 578.
Felony murder statute constitutional. — Constitutional objection that felony murder statute under which petitioner was convicted was so broad and vague as to be unconstitutional was rejected. Hines v. Baker , 309 F. Supp. 1017 (D.N.M. 1968), aff'd , 422 F.2d 1002 (10th Cir. 1970).
Purpose. — In our felony-murder statute the legislature has permissibly determined that a killing in the commission or attempted commission of a felony is deserving of more serious punishment than other killings in which the killer's mental state might be similar but the circumstances of the killing are not as grave. State v. Ortega , 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.
Intent to kill for felony murder need not be a "willful, deliberate and premeditated" intent as contemplated by the definition of first degree murder in Subsection A(1) of this section, nor need the act be "greatly dangerous to the lives of others, indicating a depraved mind regardless of human life", as contemplated by the definition in Subsection (A)(3). State v. Ortega , 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.
An intent to kill in the form of knowledge that the defendant's acts "create a strong probability of death or great bodily harm" to the victim or another, so that the killing would be only second degree murder under Subsection B of this section if no felony were involved, is sufficient to constitute murder in the first degree when a felony is involved - or so the legislature has determined. State v. Ortega , 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.
The "malice" required for murder (both first and second degree), as opposed to manslaughter, is an intent to kill or an intent to do an act greatly dangerous to the lives of others or with knowledge that the act creates a strong probability of death or great bodily harm. The same intent should be required to invest with first degree murder status a killing in the commission of or attempt to commit a first degree or other inherently dangerous felony. State v. Ortega , 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.
In addition to proof that the defendant caused (or aided and abetted) the killing, there must be proof that the defendant intended to kill (or was knowingly heedless that death might result from his conduct). An unintentional or accidental killing will not suffice. State v. Ortega , 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.
Felony murder does have a mens rea element, which cannot be presumed simply from the commission or attempted commission of a felony. State v. Ortega , 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.
Intent requirement. — The felony-murder intent requirement is satisfied if there is proof that the defendant intended to kill, knew that his actions created a strong probability of death or great bodily harm to the victim or another person, or acted in a manner greatly dangerous to the lives of others. State v. Griffin , 1993-NMSC-071, 116 N.M. 689, 866 P.2d 1156.
Conclusive presumption disapproved. — To presume conclusively that one who commits any felony has the requisite mens rea to commit first degree murder is a legal fiction which can no longer be supported where the felony is of lesser than first degree. State v. Harrison , 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.
Murder during commission of first degree felony. — In a felony murder case where the collateral felony is a first degree felony, the res gestae test shall be used. State v. Harrison , 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.
Murder during commission of dangerous lesser degree felony. — In a felony murder charge, involving a collateral felony, which is not of the first degree, that felony must be inherently dangerous or committed under circumstances that are inherently dangerous to support a felony murder conviction. State v. Harrison , 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.
Robbery may raise second degree murder to first. — Robbery can be the predicate offense to raise second degree murder to first degree felony murder, under Subsection A(2), where there is a causal relationship between the robbery and the murder, the robbery is independent of or collateral to the murder, and the nature of the robbery is inherently or foreseeably dangerous to human life. State v. Duffy , 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807.
Dangerous lesser degree felony high probability of death. — Of the felonies which are not of the first degree, only those known to have a high probability of death may be utilized for a conviction of first degree murder. State v. Harrison , 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.
Underlying felony need not be dangerous. — It is irrelevant that, in the abstract, trafficking a controlled substance by possession with intent to distribute is not necessarily a dangerous crime. The standard applied to defendant was, while engaging in that particular felony, and as a consequence of the felony, defendant intended to kill. State v. Bankert , 1994-NMSC-052, 117 N.M. 614, 875 P.2d 370.
Jury to determine dangerousness. — Both the nature of the felony and the circumstances of its commission may be considered to determine whether it was inherently dangerous to human life; this is for the jury to decide, subject to review by the appellate courts. State v. Harrison , 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.
It was proper for the jury to determine whether the crime of criminal sexual contact was inherently dangerous for purposes of felony murder. State v. Mora , 1997-NMSC-060, 124 N.M. 346, 950 P.2d 789.
Sequence not determinative. — If a homicide occurs within the res gestae of a felony, the felony murder provision of the statute is applicable, and whether the homicide occurred before or after the actual commission of the felony is not determinative of the applicability of the felony murder provision. State v. Flowers , 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178; Nelson v. Cox , 1960-NMSC-005, 66 N.M. 397, 349 P.2d 118.
Intent not determinative. — Killing by person engaged in commission of a felony was first degree murder by both the principal and accessory present aiding and abetting, whether the killing was intentional or accidental. State v. Smelcer , 1924-NMSC-059, 30 N.M. 122, 228 P. 183.
Voluntary intoxication no defense to first degree felony murder. — Intoxication is not a defense to second degree murder and, therefore, is also not a defense to first degree felony murder. State v. Pando , 1996-NMCA-078, 122 N.M. 167, 921 P.2d 1285.
Felony murder applicable to attempts. — The felony murder provision is clearly applicable once conduct in furtherance of the commission of a felony has progressed sufficiently to constitute an attempt to commit the felony, and an attempt has been accomplished when an overt act, in furtherance of and tending to effect the commission of the felony, has been performed or undertaken with intent to commit the felony. State v. Flowers , 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178.
Where the evidence clearly supported a reasonable inference that defendant had already formed the intent to take the automobile and was in the process of executing that intent when the shooting occurred and before the death of decedent, an instruction on the felony murder rule was appropriate. State v. Flowers , 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178.
Crime of attempted felony murder does not exist in New Mexico and the trial court cannot have jurisdiction over such a charge. Since the trial court lacks jurisdiction, there is no basis for a claim of double jeopardy, and on remand, the prosecution may file an alternate, proper charge. State v. Price , 1986-NMCA-036, 104 N.M. 703, 726 P.2d 857, cert. quashed, 104 N.M. 702, 726 P.2d 856.
Precise felony to be named in charge. — Before defendant can be convicted of felony murder, he must be given notice of the precise felony with which he is being charged and the name of the felony underlying the charge must be either contained in the information or indictment or furnished to the defendant in sufficient time to enable him to prepare his defense. State v. Hicks , 1976-NMSC-069, 89 N.M. 568, 555 P.2d 689.
Attempt subsumed under offense named. — Conviction of first degree murder under the felony murder rule for an attempt to commit a felony when the charge under the indictment alleged the completion of the felony did not infringe fundamental rights of defendant, since the attempt to commit the crime charge is a necessarily included offense. State v. Turnbow , 1960-NMSC-081, 67 N.M. 241, 354 P.2d 533.
Felony murder requires absence of independent intervening force. — In a felony murder, the death must be caused by the acts of the defendant or his accomplice without an independent intervening force. State v. Adams , 1979-NMSC-032, 92 N.M. 669, 593 P.2d 1072; State v. Perrin , 1979-NMSC-050, 93 N.M. 73, 596 P.2d 516.
Criminal sexual penetration as predicate felony. — Applying the strict-elements test, first degree criminal sexual penetration (CSP) is not a lesser included offense of second degree murder and, accordingly, first degree CSP could properly serve as a predicate for applying the felony-murder doctrine. State v. Campos , 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266.
False imprisonment as predicate felony. — Based on evidence that the victim was forced into the back of a two-door car at gunpoint and was beaten with a gun as he was driven to an isolated location where he was shot, and that defendant and her accomplices were armed and had been drinking throughout the evening, a rational jury could find that defendant committed the crime of false imprisonment "under circumstances or in a manner dangerous to human life" as the predicate felony for felony murder. State v. Smith , 2001-NMSC-004, 130 N.M. 117, 19 P.3d 254.
Shooting at or from a motor vehicle may not serve as the predicate felony for felony murder. — Under the collateral felony rule, the predicate felony must be independent of or collateral to the homicide, and the predicate felony cannot be a lesser-included offense of second-degree murder. Shooting at or from a motor vehicle is an elevated form of aggravated battery, a lesser-included offense of second-degree murder, and thus cannot be used as a predicate for felony murder, so where defendant was convicted of first-degree felony murder, the underlying felony of which was shooting from a motor vehicle, defendant's felony murder conviction was vacated because the crime of shooting at or from a motor vehicle lacks an independent felonious purpose from that required under second-degree murder. State v. Marquez , 2016-NMSC-025.
New rule that shooting at or from a motor vehicle cannot be used as a predicate for felony murder applies retroactively. — In State v. Marquez , 2016-NMSC-025, the New Mexico supreme court determined that shooting at or from a motor vehicle is an elevated form of aggravated battery and thus cannot be used as a predicate for felony murder; shooting at or from a motor vehicle does not have a felonious purpose independent from the purpose of endangering the physical health of the victim because shooting from a motor vehicle must be accomplished with reckless disregard for the safety of a person. Marquez established a new substantive rule that narrowed the range of punishable conduct that could support a felony murder conviction, and therefore should be given retroactive effect. Rudolfo v. Steward , 2023-NMSC-013.
Retroactive application of new substantive rule established in State v. Marquez . — Where petitioner was convicted of first-degree murder under a general verdict at a trial in which the jury instructions contained two alternative theories for the jury to use as a basis for the first-degree murder conviction: felony murder predicated on shooting at or from a motor vehicle and willful and deliberate murder, and where, on direct appeal, the New Mexico supreme court vacated petitioner's conviction for felony murder, holding that the crime of shooting at or from a motor vehicle may not serve as the predicate felony in support of a felony murder charge, and where, in a petition for habeas corpus, petitioner claimed that the supreme court's holding applies retroactively and that his conviction for willful and deliberate murder must also be vacated, the district court erred in denying petitioner's habeas petition, because a general verdict must be reversed if one of the alternative bases of conviction is legally inadequate, and in this case it is impossible to determine whether the general verdict was based on the legally invalid theory of felony murder or on willful and deliberate murder. Rudolfo v. Steward , 2023-NMSC-013.
Shooting at or from a motor vehicle cannot serve as the underlying felony sustaining a felony murder conviction. — Where defendant was convicted of first-degree felony murder predicated on the underlying felony of shooting at or from a motor vehicle, the New Mexico supreme court vacated defendant's conviction of felony murder because shooting at or from a motor vehicle is an elevated form of aggravated battery, and thus cannot be used as a predicate for felony murder. State v. Baroz , 2017-NMSC-030.
Shooting at dwelling as predicate felony. — Applying the strict-elements test, shooting at a dwelling is not a lesser included offense of second degree murder, and the offense could serve as a predicate for applying the felony-murder doctrine. State v. Varela , 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280.
Convictions for felony murder and shooting at a dwelling violated defendant's right to be protected from double jeopardy. State v. Varela , 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280.
Insufficient evidence that defendant committed the predicate felony of shooting at a dwelling or occupied building. — Where defendant was convicted of felony murder predicated on the felony of shooting at a dwelling or occupied building, the evidence established that defendant and his companions targeted the victims in the course of a gunfight that took place in front of a dwelling, but did not shoot at or target the dwelling. Therefore, the evidence is not sufficient to support a conviction of felony murder predicated on the felony of shooting at a dwelling. State v. Comitz , 2019-NMSC-011.
Sentences for kidnapping and felony murder not double jeopardy. — Sentences for both kidnapping and felony murder did not violate double jeopardy since the kidnapping was sufficiently separated in time and space from the murder to establish two distinct crimes. State v. Kersey , 1995-NMSC-054, 120 N.M. 517, 903 P.2d 828.
Where the conduct underlying defendant's convictions for aggravated kidnapping and first degree felony murder was not unitary, the district court did not violate double jeopardy by convicting and sentencing defendant for both first degree felony murder and aggravated kidnapping. State v. Foster , 1999-NMSC-007, 126 N.M. 646, 974 P.2d 140.
Unitary conduct in commission of murder and robbery. — Since the defendant's conduct in stabbing and robbing a cabdriver was unitary, the elements of armed robbery were subsumed by the elements of felony murder in the course of an armed robbery and conviction and sentencing of the defendant for both felony murder and the underlying felony of armed robbery violated double jeopardy. State v. Contreras , 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228.
Convictions for felony murder and robbery, because they arise out of unitary conduct, violate the defendant's right to be free from double jeopardy. State v. Duffy , 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807.
Where armed robbery provided the underlying felony for defendant's first degree murder conviction, the elements of the former crime were subsumed within the elements of the murder offense and, therefore, reversal of defendant's conviction and sentence for armed robbery was required. State v. Foster , 1999-NMSC-007, 126 N.M. 646, 974 P.2d 140.
Conduct not unitary. — Convictions for both felony murder and armed robbery do not violate double jeopardy principles where the evidence supports an inference that there were two distinct uses of force. State v. Reyes , 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948.
Evidence of holdups inadmissible. — Evidence of two "holdups" perpetrated by defendant just prior to murder for which he is charged, and concerning which there is no evidence of robbery, was inadmissible. Roper v. Territory , 1893-NMSC-026, 7 N.M. 255, 33 P. 1014.
Not felony murder of cofelon where killing committed by resisting victim. — A coperpetrator of a felony cannot be charged under this section with the felony murder of a cofelon when the killing is committed by the intended robbery victim while resisting the commission of the offense. Jackson v. State , 1979-NMSC-013, 92 N.M. 461, 589 P.2d 1052.
Defendant was not entitled to a manslaughter instruction where there was no evidence that the victim was the source of the provocation. — Where defendant was convicted of felony murder, the trial court's refusal to instruct the jury on voluntary manslaughter was not improper where defendant argued at trial that the source of the provocation was his accomplice, not the victim, and it is settled law that the victim of voluntary manslaughter must be the source of the provocation. A third party, such as an accomplice, cannot properly support a provocation defense under New Mexico law, and thus there was no evidence of provocation that could reduce the charge of murder to manslaughter. State v. Sloan , 2019-NMSC-019.
IV. GREATLY DANGEROUS ACTS.
Depraved mind murder requires extremely reckless conduct evidencing indifference for the value of human life. State v. Ibn Omar-Muhammad , 1985-NMSC-006, 102 N.M. 274, 694 P.2d 922.
Indicators of a depraved mind. — The four indicators of a depraved mind are as follows: (1) more than one person was endangered by the defendant's act, (2) the defendant's act was intentional and extremely reckless, (3) the defendant had subjective knowledge that his act was greatly dangerous to the lives of others, and (4) the defendant's act encompassed an intensified malice or evil intent. State v. Candelaria , 2019-NMSC-004.
In defendant's trial for depraved mind murder, there was sufficient evidence to support the conviction where defendant fired a gun at a vehicle occupied by four people, striking and killing an eight-year-old child sitting in the backseat of the vehicle, and where the evidence pres

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