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New Mexico Supreme Court Announces Marquez’s Holding That ‘Crime of Shooting at or From Motor Vehicle Cannot Be Predicate Felony Supporting Charge of Felony Murder’ Is New Substantive Rule and Applies Retroactively

by Douglas Ankney

The Supreme Court of New Mexico held that the holding of State v. Marquez, 376 P.3d 815 (N.M. 2016), wherein the Court ruled 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,” announced “a new substantive rule which applies retroactively.”

In 2004, Mario Rudolfo was convicted by jury of first-degree murder, attempted murder, shooting at or from a motor vehicle, and tampering with evidence. The instructions contained two alternative theories upon which the jury could convict for murder: (1) felony murder predicated on shooting at or from a vehicle and (2) willful and deliberate murder. The jury’s general verdict form did not indicate upon which theory the first-degree murder was based.

On appeal, the Court vacated the conviction for shooting at or from a motor vehicle and held that the alternative theory of felony murder could subject Rudolfo to double jeopardy. The judgment was affirmed in all other respects.

After the Marquez decision, Rudolfo filed a petition for writ of habeas corpus, arguing that because Marquez’s ruling is substantive, it applies retroactively and his first-degree murder conviction should be reduced to second-degree murder. The district court denied the petition, and the New Mexico Supreme Court granted certiorari.

The Court observed “[i]t is within the inherent power of this Court to give its decision prospective or retroactive application without offending constitutional principles.” Kersey v. Hatch, 237 P.3d 683 (N.M. 2010). “For new case law to apply retroactively, a judicial opinion must have announced a new rule after a defendant’s conviction had been finalized.” Id. “A case is finalized when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or petition for certiorari finally denied.” State v. Nunez, 2 P.3d 264 (N.M. 2000). An appellate opinion “need not overrule a prior decision in order to qualify as new.” Kersey. “Rather, an opinion announced a new rule if it breaks new ground, imposes new obligations on the government, or was not dictated by precedent.” Id.

In New Mexico, prior to Marquez, the Court explained that “the predicate felony for felony murder had to ‘be independent of or collateral to the homicide.’” State v. Harrison, 564 P.2d 1321 (N.M. 1977). The Supreme Court “employed a strict-elements test to determine whether a particular felony was independent of or collateral to a homicide.” State v. Duffy, 967 P.2d 807 (N.M. 1998). Under the strict-elements test, “an offense [is] deemed to be a lesser-included offense of another only if all of the statutory elements of the lesser offense [are] completely embodied within the statue elements of the greater offense such that it would [be] impossible ever to commit the greater offense without also committing the lesser offense.”

But in Marquez, the Court announced and applied the new “felonious purpose test.” Under the felonious-purpose test, “a dangerous felony may only serve as a predicate to felony murder when the elements of any form of the predicate felony—looked at in the abstract—require a felonious purpose independent from the purpose of endangering the physical health of the victim.” Id. Marquez’s ultimate conclusion that shooting at or from a motor vehicle may not serve as the predicate felony for felony murder was rooted in the relationship between second-degree murder and battery. Battery “is the prototypical lesser-included offense of murder” and cannot be the predicate to felony murder since “virtually all murders include the commission of some underlying felony in the nature of an assault or battery.” Id. Because shooting at or from a motor vehicle “is an elevated form of aggravated battery,” the Marquez Court concluded it could not be the predicate felony for felony murder.

In Kersey, the Court adopted the framework of Teague v. Lane, 489 U.S. 288 (1989), to determine when a new rule of law applies retroactively in the context of a collateral review proceeding such as habeas corpus. In New Mexico, new rules are not applied retroactively on collateral review “unless (1) the rule is substantive in nature, in that it alters the range of conduct or the class of persons that the law punishes, or (2) although procedural in nature, the rule announces a watershed rule of criminal procedure.” Kersey. [Note: it is important to appreciate the distinction between “collateral review” and “direct review”—generally, new rules always apply to direct review or “cases not yet final on appeal.”] Because Marquez narrowed the range of punishable conduct that could support a felony-murder conviction, the Court held it is a substantive rule to be afforded retroactive effect.

A “conviction under a general verdict must be reversed if one of the alternative bases of conviction is legally inadequate.” Campos v. Bravo, 161 P.3d 846 (N.M. 2007). Per the reasoning of the instant appeal, the alternative theory of felony-murder predicated on shooting at or from a motor vehicle is legally inadequate.

Accordingly, the Court set aside the district court’s denial of Rudolfo’s habeas petition, vacated his first-degree murder conviction, and remanded for a new trial. See: Rudolfo v. Steward, 533 P.3d 728 (N.M. 2023).  

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Related legal case

Rudolfo v. Steward

 

 

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