Chaves County Sheriff Detective Dennis Kintigh summed up the feeling of law enforcement: “Some of the frustration is the way case law works. The (higher) courts have left more people vulnerable to be victimized in defense of the accused.”
For example, New Mexico’s definition of felony murder differs significantly from other states. The New Mexico statute raises any homicide that occurs during the commission of a crime from second-degree murder to first-degree. In most states, a felony murder allows authorities to charge all participants of the crime with murder when a person is killed. Even those not physically present at the time are held accountable. The classic example is the driver of the get-[auth] away vehicle during a bank robbery.
In New Mexico, the law requires the prosecutor to prove that the individual had an intent or knowledge of wrongdoing. District Attorney Janetta Hicks explained: “With felony murder, the ‘get- away driver’ has to have shared the intent to kill, not just to commit a crime. The bank robbery is a shared intent to commit a crime. We have to prove that the ‘get away driver’ shared the intent to kill anyone in the bank that got in their way. As opposed to agreed to use a gun to scare everyone into submission, but did not intend anyone to get hurt. Very different from other states.”
The disparities stem from several supreme and appellate court decisions. The change in the original statute resulted from the case State v. Ortega where the defendant kidnapped two girls as part of a robbery. He beat the girl who was driving and stabbed her 38 times. The defendant then stabbed the passenger more than 45 times. The Supreme Court held that New Mexico’s felony murder rule requires the prosecution to prove that Ortega intended to kill the two women when he first abducted them.
The New Mexico Supreme Court has required the prosecutor to ensure the charges do not violate the double jeopardy law, which does not allow a defendant to be charged twice with the same crime. In the Ortega case, the two victims were kidnapped more than two hours before they were stabbed to death. The court determined the kidnapping was separate from the homicide.
In the State v. Lopez, the courts decreed that the prosecutor needed to determine if the crimes are part of a single act. The murder charges in the Lopez case resulted from an attempted armed robbery where a clerk was killed. It was deemed that the robbery and homicide were a single act. Thus, the court could not convict for both the underlying felony and the homicide, which in effect negates the possibility of charges of felony murder.
The most recent Supreme Court decision was released on May 16, following the State of New Mexico versus Benjamin Montoya, where a victim was killed subsequent to a gang fight and drive-by shooting. During the original trial, the jury found the defendant guilty of both voluntary manslaughter, first-degree felony murder, based on the felony of shooting into a motor vehicle, and shooting at a motor vehicle resulting in great bodily harm.
Basically, the court ruled that the state had to prove the defendant had a “culpable state of mind,” or intent, sufficient to support a conviction for second-degree murder. If the death resulted in the heat of passion, such as a gang fight, the crime then become voluntary manslaughter, rather than second-degree murder and felony murder, which elevated the second-degree murder to first-degree.
Each change to the law has subsequently weakened it and limited both law enforcement and the court’s ability to act. In essence, the prosecutor must not only be able to place the gun in the hand of the shooter to charge him with murder, it must also prove that the other individual was cognizant of the possibility of murder and in agreement with using deadly force to complete the act.
Silence, therefore, provides protection under the law. If neither actor in a crime admits to carrying the gun, then no charges can be preferred against either of them and the culprit can quite literally get away with murder.
Kintigh concluded: “When the people lose faith in the concept of justice in the courtroom, I’m afraid they will seek revenge in the streets. People who value due process need to know how this happened.”