A Statutory Scheme That Asks Jurors to Guess

The not so black-and-white of murder in New Mexico

A man who was recently on trial is brought into a courtroom to stand before a wizened looking judge of indeterminate-plus years who appears quite benevolent in his demeanor. The man's trial has already transpired, and, as far as he understands the process, he's only waiting for the jury's verdict, which, at this point, he's thankful to have because not much of anything makes sense to him.

He stands before the bench as the judge clears his throat.

"Mr. So-and-So, I've called you into the courtroom today to give you both some good news and some bad news."

Mr. So-and-So looks around to see if he can read from the faces in the courtroom if this is really a joke, but on every face around him, from the prosecutor to his own attorney, to the peanut gallery to the jury members, every face shows a general disinterest in what is currently transpiring.

"Mr. So-and-So," the judge repeats from his perched position on the bench. "Do you understand what I said?"

"Yes, Your Honor," the man hesitantly replies. "Good news and bad news."

"Precisely!" the judge exclaims. "Now, it's absolutely imperative that you inform this court as to which news you would like to receive first, the good or the bad?"

The man takes a beat to consider his options, shrugs his shoulders and says, "I prefer the bad news first, Your Honor."

"Very well," the judge says, now leaning forward in his seat. "The bad news, Mr. So-And-So, is that the law has determined based on the conclusion of these proceedings that you be condemned to life in prison."

The man is unresponsive and seemingly confused. After all, it wasn't as though he meant to do what he did, and because of which, he had hoped that given the circumstances of his crime that his sentence might have been a little less. So the man looks up to the wizened judge, still perched on the edge of his seat looking down his long nose at him, and dares to ask, "What's the good news?"

The judge doesn't hesitate. "The good news, Mr. So-and-So, is that you've been upgraded!"

"Upgraded?" the man repeats with a look of bewilderment.

"Yes, Mr. So-and-So," the judge says, "you've been upgraded from second-degree intentional murder to intentional and deliberate first-degree murder."

The man is confused on many levels, but with his limited intellect he struggles to prioritize his doubts into a coherent question and only manages to come up with, "Your Honor, what's the difference between intentional and intentional and deliberate?"

The judge leans back in his big leather chair, suddenly now feeling a little less benevolent than before. "The difference, Mr. So-and-So, is 'deliberate,' did you not understand what I said?"

"I'm not sure I do, Your Honor, because it seems to my very limited understanding that intentional and deliberate is—or at the very least, seems like—one in the same thing."

"It's not," the judge assures him.

The man again looks around the courtroom, thinking that at any moment someone is sure to break into laughter and this will all prove to be a horrible joke where they inform him that really the jury acquitted him but they just wanted to have a little fun before telling him the real good news. But as the man looks around the courtroom all he sees is people checking their watches and otherwise avoiding making any kind of eye contact with him.

The judge again clears his throat. "You see, Mr. So-and-So, based on New Mexico's statutory scheme for murder, all murder is intentional but not all murder is deliberate."

The man still doesn't follow, but for the time being chooses to ignore the obvious. "Well," the man says, "what makes what I must have done intentional and deliberate, as opposed to just intentional?"

"Deliberation, Mr. So-and-So, obviously!" the judge exclaims. "Is there anything else you would like to ask?"

"Yes, Your Honor, " the man says. "Who determined that I intended and deliberated as opposed to just intended?"

"Why—the jury, of course!" the judge says while signaling to the twelve jury members in the box.

"How did they determine that?"

"Oh that's easy, Mr. So-and-So," the judge says, he himself now looking at his watch. "As in all criminal trials the State is constitutionally tasked with providing to the jury 'proof beyond a reasonable doubt' of every element of the crime for which it intends you to be convicted."

"And the proof—beyond a reasonable doubt—that I deliberated, was what?"

"By your own admission, Mr. So-and-So, and corroborated by multiple witnesses, you sat on the porch of the residence and smoked a cigarette."

"And that was proof beyond a reasonable doubt that I deliberated?"

"Yes—"

"Because every man who happens to be smoking a cigarette is deliberating?"

"Well, you certainly were," the judge says, "or so the jury must have guessed—I mean, determined!"

"But how could the jury possibly know that?" the man asks, but then decides to go a different direction before the benevolent judge's patience wanes. "So if hadn't smoked a cigarette I wouldn't have been upgraded, is this correct?"

"Of course not, " the judge replies. "To have upgraded you to first-degree murder without proof beyond a reasonable doubt of deliberation would have been to violate your right to due process, Mr. So-and-So, and we are not above the law."

"If I could just ask one more question, Your Honor."

"Go ahead."

"What would my sentence have been had I not been 'upgraded'?"

"Well, let me think," the judge says, tapping his finger tips on his desk. "A second-degree intentional murder carries a sentence of nine years. But like I said, you were upgraded, and when you are sentenced—which we don't have time for today—your sentence will be for life imprisonment."

Obviously, none of the above conversation has ever taken place—at least, not to my knowledge. Its purpose is simply to expose an interesting truth about New Mexico's statutory scheme on murder, in that, it consists of two categories of intentional killings: those that are willful, deliberate, and premeditated; and those that are just intentional. Many people are of the opinion that murder is murder, it's a black-and-white determination of asking and answering a very limited number of questions: did this person (or persons) kill that person? Was the killing unlawful? Were there mitigating circumstances like, could it have been accidental, or an act of self defense? These are all questions that most people can readily understand and appreciate in the general undertaking of determining someone's culpability or guilt. What is not easy to understand is when the determination turns on what a defendant was thinking at a high stress, critical moment of their lives, and even more confusing are the very instructions jury members are given before their deliberations. Consider the following instruction that tells the jury that it must find that the defendant killed the victim and that the killing was with the deliberate intention to take away the life of the victim:

A deliberate intention refers to the state of mind of the defendant. A deliberate intention may be inferred from all the facts and circumstances of the killing. The word deliberate means 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. A calculated judgement and decision may be arrived at in a short period of time. A mere unconsidered and rash impulse, even though it includes an intent to kill, is not a deliberate intention to kill. To constitute a deliberate killing, the slayer must weigh and consider the question of killing and his reasons for and against such a choice.

However, as a backdrop to the above instruction the Supreme Court has established that "any presumption which establishes a fact essential for conviction of the crime by proof of another fact, or which shifts to the defendant the burden of persuasion that the essential fact is not true, runs afoul of the Due Process Clause."¹ Which means that, if the fact to be determined is whether someone had a mere thought or a "careful thought," or made a judgement or a "calculated judgement," or otherwise intended to kill someone or "deliberately intended" to kill someone the fact itself can't be established through another fact like, "the man smoked a cigarette" or "purchased a raspberry tea from Starbucks." Because to do so, apart from it being absurd and a mockery of justice, would be to shift the burden of proof to the defendant that the nonessential fact was not indicative of the essential fact—i.e., the deliberation.

You might be asking, what is proof beyond a reasonable doubt? Because it most certainly sounds subjective, and, you're right, it is a very loose approach for arriving at a determination on guilt or innocence when someone's liberty is at stake. In theory, however, it's also an extremely high standard and burden for the State to meet. It's defined as "a legal standard for deciding the outcome of a criminal charge, requiring evidence that is sufficient to eliminate any doubts that a reasonable person might entertain about whether a claim is more likely to be true than not"². Most legal scholars are of the opinion that the crystallization of "beyond a reasonable doubt" seems to have occurred as late as 1798. The Supreme Court pontificated on the overreaching importance of this legal concept in a landmark case in 1970³:

Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper fact-finder of his guilt with utmost certainty.

Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

You might be thinking that this certainly sounds lofty, but also reasonable and necessary for any nation that has EQUAL-JUSTICE-UNDER-Law emblazoned over the entrance of its highest court. A recent comment from a reader on social media, "truth is subjective," seems particularly relevant to today's post. Because for anyone who has ever dipped their toes into some of the philosophical standpoints on the subjectivity of truth it is certainly a profound rabbit-hole to delve into. A certain subjectivity that I'll attempt to summarize with: truths are constructed by our very contradictory opinions which are obviously shaped by our perceptions. And what forms our perceptions? The list is long, starting with our experiences and ending with our beliefs. Did somebody insult me? Did he or she lie? Did they take that thing without permission? To many of us, these types of questions may seem black and white. Because either someone did or didn't do something. But what if the question isn't entirely based on what can be observed? What I mean to say is, what if the entirety of your observations were based on your speculations on what someone might have been thinking in any given situation instead of what they did? And, as it so happens, the crime for which they will be convicted or acquitted at trial is subjectively based on these same opinions and beliefs that have very little to do with facts.

Perhaps truth is subjective, as one my readers suggests, but what about when the facts themselves become subjective?

As previously stated, under New Mexico's "statutory scheme" murder consists of two categories of intentional killings: those that are willful, deliberate, and premeditated; and those that are still intentional but without the deliberation and premeditation element. A sort of alternate reality of New Mexico jurisprudence where a murder can be intentional but not deliberate.

In every crime-drama series crimes are solved by a careful analysis of the facts. Which is to say that there are certain documentable actions that determine whether or not a particular crime was committed. Whether this evidence comes in the form of documents, electronic fingerprints, video or audio recordings, DNA or eyewitness testimony the fact finding process for the detective(s) pursuing evidence for the purpose of prosecution is rather straight forward. The process usually begins with some form of accusation or discovery, followed thereafter by an investigation into the events and circumstances, where the objective is to arrive at the who, what, when, where and how of the alleged crime. Once the evidence is in hand the proper arrest warrants are issued and executed. An exception, however, to this very straight forward process exists when the stakes are most high: because when the charge is murder, suddenly the light begins to shift through reality's kaleidoscope to such an extent that the elements of the crime can't be determined by the aforementioned, observable evidence; rather, they have to be intuited. In this alternate reality the determination of the accused's culpability for murder comes down to the subjective determinations of what the jury members believe the person's thought process was at the moment of the killing. Because in New Mexico all murder is intentional, but not all murder is deliberate. If you happen to be scratching your head in confusion, you're not alone.

In my own case, during the State's closing arguments, the district attorney stood before jury and clearly stated a few obvious facts: they couldn't prove that I had "pulled the trigger," fired a gun, or, in all actuality, that I had personally killed anyone. But, she proceeded to explain how firmly she believed in my guilt and proceeded to recount all of the testimony from people who had been called to testify on my womanizing, scheming, ambitious ways; though, she neglected to mention that none of what was testified to was actually criminal, or, even directly related or relevant to crime of murder for which I was being accused. Other individuals, such as neighbors, placed me at the residence where the crime took place (a fact that I had no reason to deny). One particular neighbor, Mrs. Kellerman, testified that I toured the property with the listing agent (the victim) and mentioned that I was photographing the house, and that I greeted her. Of course, at the time, I was none the wiser as to due process or "proof beyond a reasonable doubt," and potentially, neither was my attorney because nothing was ever said about such a high standard of proof never having been provided to the jury on the issue of "deliberation." After all, what possible evidence was provided for the jury's consideration that I had actually deliberated? I didn't smoke a cigarette or sit on a porch. I did, however, go to Starbucks that particular morning and order a raspberry tea—perhaps the jury determined that anyone willing to pay exorbitant prices for beverages must be deliberating on murder; or perhaps it had more to do with the way in which I was taking photographs of the house. Could I have unknowingly been photographing in an aggressive or otherwise contemplative manner?

According to the New Mexico Supreme Court?, the "jury's fundamental role as fact-finder in our system of justice and the independent responsibility of the courts to ensure that the jury's decisions are supportable by evidence in the record, rather than mere guess or conjecture" is essential. But, if a jury arrives at the fact-finding determination that the convicted and condemned man was deliberating on on a double murder because he admittedly sat on a porch and smoked a cigarette, with no other evidence presented as to what he was thinking, that seems like the very definition of a "mere guess or conjecture."

It's not as though we can hear the hamster wheel in someone's head turning—squeak-squeak-squeak—as they actively deliberate on murder. It's an absurd idea that anyone could even presume to know what someone is thinking based on such a limited amount of information, such as, smoking a cigarette, or, as in my case, taking photographs or paying for overpriced beverages at Starbucks.

Essentially, the courts say that a jury's decision must be supportable by the "evidence in the record, rather than mere guess or conjecture" and then issues a jury instruction where the members of the jury are tasked with delineating between a defendant's "calculated judgement" of "careful thought and the weighing of the consideration for and against the proposed course of action." And then, with a straight face no less, demand that this herculean task be performed with no crystal ball, tarot cards, time machine, hypnosis, or guessing in determining between "intent to kill" and "deliberate intent to kill"—really?

An even more daunting challenge for New Mexico juries is that prosecutors will typically ideate multiple theories of the same crime for a jury to consider in its deliberations. These multiple theories then lead to juries reaching guilty verdicts on multiple classes of murder with contradictory determinations for a single crime. A contradiction that the trial court resolves by entering a single conviction for first degree murder, rather than attempt to resolve the contradiction. The legal reasoning being that, "first-degree murder is a single crime, whether supported by a single theory or by multiple theories."* Which means that if a jury finds someone guilty, as in my case, of deliberate and intentional murder, and, intentional murder (under the guise of felony murder) then the court's solution is to simply consolidate the multiple jury verdicts into a single conviction for first-degree murder. The problem with the court's solution is that in doing so it creates a legal contradiction.

Consider the statutory fact in New Mexico that someone found guilty of felony murder, which legislatively speaking is a type of first-degree murder, is technically someone who commits second-degree murder (i.e., intentional murder) while in the commission of a dangerous felony, that because of the dangerous felony the crime gets upgraded to first-degree murder (i.e., deliberate and intentional murder) for the purpose of conviction and sentencing, even though the necessary element—according to Due Process—of needing evidence to prove deliberation "beyond a reasonable doubt" hasn't been satisfied. Even more interesting is that for a juror to arrive through deliberation at a determination of guilt for felony murder, according to the state's high court, the juror must find that: (1) "the defendant committed or attempted to commit a felony, which was either a first-degree felony or was committed under circumstances or in a manner dangerous to human life"; and (2) "the defendant intended to kill or knew that his or her acts created a strong probability of death or great bodily harm." Only when all of this is satisfied does a second-degree murder get upgraded to first-degree. And though this isn't necessarily easy to understand, generally speaking, the legislature's agenda is rather simplistic: to punish more severely certain crimes like armed robbery or burglary when life is forfeit due to these egregious pursuits.

Where the water becomes murky, however, is when juries find guilt on multiple (sometimes contradictory) theories for the same crime, as is typical in New Mexico. Only in rare instances is the prosecution confident enough in its case to pursue a conviction for first-degree murder alone, and will instead present the jury with an entire platter of murder options in the hope that one or more will stick.

As in my case, the jury found me guilty of felony murder and first-degree murder. On the surface it's a determination that can seem contradictory because in order to arrive at felony murder the jury first needed, as previously established, to determine that my initial intention was the state's predicate felony of armed robbery (a second-degree felony that has been deemed a crime that is dangerous to human life), and that in my pursuit of that crime the victim was "intentionally" killed—hence, felony murder—i.e., second-degree gets upgraded to first-degree murder. But then, the jury also reaches a guilty verdict on "deliberate" and intentional first-degree murder. Where, granted, if we step out of the rabbit-hole for just a moment, it's easy enough to see that it's theoretically possible for someone to rob someone and possess the mens rea (mindset) of deliberation and intent to kill the same victim. That is, unless we step back into the rabbit-hole and read what the same high court has said on the matter: "that the jury must find the mens rea for second-degree murder before it can consider elevating the crime to first-degree felony murder." But, then the question becomes, did the jury convict on first-degree murder because it understood that it had already reached a guilty verdict on the armed robbery and the second-degree "intentional" murder (i.e., felony murder) and understood that since felony murder is technically a type of first-degree murder that they needed to also mark GUILTY for first-degree murder, separately?

Or, was the jury saying that separate from the finding of second-degree murder in the pursuit of the armed robbery (i.e., felony murder) that it was also finding that there was evidence "beyond a reasonable doubt" of the required "deliberation" element, and that I was also guilty of first-degree murder as a stand alone crime? But, if so, what evidence presented by the state proved deliberation "beyond a reasonable doubt"? And, can we simultaneously possess the mens rea for two different crimes? Which is to say, be both " deliberate" and "intentional" together and separate at the same time?**

As for the evidence on deliberation, there was no such evidence. As established, the prosecution openly admitted to the jury that it couldn't even prove the actual act of the killing—not with testimony or physical evidence—much less likely was it able to present evidence of deliberation.

Even more confounding is that since it's impossible to know which of the prosecution's theories of murder the jury members individually decided upon, the court doesn't have a unanimous jury verdict. The state supreme court, however, has determined that such a detail is irrelevant because murder is single crime "even if jurors do not agree on the underlying theory."*** Which is the court's way of saying, it doesn't matter which theory the jury members voted for because either outcome is first-degree murder, whether that be through the doorway of "deliberate and intentional," or just "intentional" (second-degree) with the predicate felony (in this case, armed robbery) that brings us to felony murder—a type of first-degree murder.

But, what happens if it's subsequently determined on appeal that one of the theories on the state's platter of murder options for the jury to choose from is legally impossible or inadequate?

Well, the state supreme court has likewise already answered this question: "due process does not require a guilty verdict to be set aside if an alternative basis of conviction is only factually inadequate to support a conviction," however, "a conviction under a general verdict must be reversed if one of the alternative bases of conviction is legally inadequate."****

Which means, by this reasoning, that my entire conviction needs to be overturned on the basis that the state's theory for felony murder positions the armed robbery as a separate, subsequent-predicate felony that happens to be both factually and legally impossible. Because the state's theory was that the armed robbery took place as a separate transactional incident post-murder. Which means that: (a) armed robbery can't legally be committed against a dead person, to do so would blatantly contradict the statute; and (b) even if someone could theoretically commit armed robbery against a dead person, doing so wouldn't meet the felony murder requirement that the underlying felony be "inherently or forseeably dangerous to human life"—because since the person is already dead, there is no danger to human life. Therefore, there is no possible upgrade from second to first-degree murder, and since there is no way to know which theory was voted upon by which juror and why, as the state supreme court has already determined in other cases, the legal quandary where we find ourselves is something called "fundamental error." But, before celebrations can ensue we must acknowledge that being right, or even innocent, doesn't grant anyone the right or liberty of being free. Because at the end of the day the courts rarely adhere to their own reasonings or rationalizations.

Mr. So-and-So again looks up at the wizened judge still tapping his fingers on his beautiful mahogany desktop, trying with all his might to formulate a single statement or question that might extricate him from his predicament, but nothing is coming to mind. He looks over at his appointed lawyer, but he's too preoccupied smiling at one of the jurors to even notice the man's predicament.

"Is there anything else you would like to say, Mr. So-and-So?" the judge asks.

"Yes, Your Honor, there is."

"Well, what is it?'

"Maybe it doesn't matter," the man says, somewhat uncertain about how best to proceed, "but the trial I had didn't involve any cigarettes or porches."

"What is your point, Mr. So-and-So?"

"It's just that I don't understand all this talk about first and second-degree murder."

"Why not? What's wrong with you, are you stupid or something?"

"No—well, maybe I am your honor," the man says. "It's just that—"

"What?" the wizened judge exclaims, now perched so far forward on his chair that he's about to fall forward.

"I was on trial for "criminal trespassing" not murder, and I've never smoked a cigarette in my life."

The judge can't contain himself any longer and stands as he signals for bailiffs to take the man away. "Welcome to New Mexico, Mr. So-and-So, your issue can't be addressed here at this juncture, it needs to be addressed on appeal—COURT IS ADJOURNED!"

Footnotes: 1: Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) 2: http://en.wiktionary.org 3: In re Winship, 397 U.S. 358, 364, 90 S.Ct 1068, 1073, 25 L.Ed.2d 368, 375 (1970) 4: State v. Vigil, Docket No. 30,895 (N.M. 1/5/2010) *: State v. Fry, 138 N.M. 700, ¶18, 126 P.3d 516 (N.M. 2006 **: State v. Duffey, 126 N.M. 132, ¶53, 967 P.2d 807 (N.M. 1998) ***: State v. Gonzales, 143 N.M. 25, ¶6, 172 P.3d 162 (N.M. 2007) ****: State v. Olguin, 120 N.M. 740, 741, 906 P.2d 731, 732 (N.M. 1995)

Photo (1) caption: Alamy.com

Photo (2) caption: ProCon.org