                                                               I attest to the accuracy and
                                                                integrity of this document
                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'04- 12:06:24 2016.07.28

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-025

Filing Date: June 30, 2016

Docket No. S-1-SC-34418

STATE OF NEW MEXICO,

       Plaintiff-Appellee,

v.

ERIC MARQUEZ,

       Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Douglas Driggers, District Judge

Bennet J. Baur, Chief Public Defender
William A. O’Connell, Assistant Appellate Defender
Santa Fe, NM

for Defendant-Appellant

Hector H. Balderas, Attorney General
M. Victoria Wilson, Assistant Attorney General
Albuquerque, NM

for Plaintiff-Appellee

                                         OPINION

MAES, Justice.

{1}     In this case we again address whether shooting at or from a motor vehicle can serve
as a predicate for felony murder. We recognize that the collateral-felony rule has generated
confusion and hope to clarify its application in this opinion. Following trial, the jury found
Defendant Eric Marquez guilty of first-degree felony murder contrary to NMSA 1978,
Section 30-2-1(A)(2) (1994), and shooting from a motor vehicle causing great bodily harm
contrary to NMSA 1978, Section 30-3-8(B) (1993). The underlying felony supporting
Defendant’s felony murder conviction was the felony of shooting from a motor vehicle. To

                                              1
avoid double jeopardy concerns, the district court vacated Defendant’s conviction of
shooting from a motor vehicle. The district court sentenced Defendant to a term of life
imprisonment followed by a minimum period of five years of parole supervision. In his
direct appeal, Defendant claims that: (1) shooting at a motor vehicle cannot serve as a
predicate felony in the context of a felony murder conviction; (2) the court erred in
precluding evidence of drive-by shootings at Defendant’s home before 2010; (3) the jury
instructions on felony murder and self-defense failed to instruct on the essential elements
that Defendant did not act in self-defense or with sufficient provocation; and (4) admission
of the Medical Investigator’s testimony violated Defendant’s confrontation rights.

{2}      We hold 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 vacate Defendant’s felony murder
conviction. We reject Defendant’s second, third, and fourth claims. We remand to the
district court for entry of an amended judgment reinstating his conviction for shooting from
a motor vehicle.

I.     FACTS AND PROCEDURAL HISTORY

{3}     On March 10, 2011, J.T. Melendrez, with his girlfriend Angel Ortega in the
passenger seat of his car, drove to a gas pump at a local convenience store and parked his
car. While Melendrez carried a gun on some occasions, he left the weapon in the car at
Ortega’s urging. Melendrez got out of his car and walked toward the store. Suddenly,
Defendant drove into the convenience store parking lot, yelling from his truck. Defendant
shot the unarmed Melendrez once from inside his vehicle and twice after exiting his vehicle,
while yelling “[t]hat’s what you fucking get. You shouldn’t have fucking went past my
house, stupid bitch.”

{4}     Ortega ran to Defendant and confronted him. She told Defendant that “it wasn’t
[Melendrez’s] fault” because Melendrez had just been picking up Ortega. Defendant said
“[t]hat’s what he fucking gets for passing by my house.” Defendant then got in his car and
drove away. As he drove toward his home, Defendant called 911 to report what he had done.

{5}     Las Cruces Police Department Agent Gabriel Arenibas was working that evening and
was directed to Defendant’s home by dispatch. When Arenibas arrived at Defendant’s
address, Defendant was outside and talking on his cellular telephone. Defendant got down
on the ground as soon as he saw Arenibas. Defendant was “emotional,” but Arenibas was
able to detain him. Other officers responded and Arenibas walked Defendant to the back
seat of a marked patrol car. Defendant told Arenibas that he had “messed up his life to
protect his family.”

{6}    Detective Mark Meyers, also of the Las Cruces Police Department, was directed to
respond to the scene of the shooting. But while he was on his way he learned that Defendant
had been apprehended, and Meyers instead went to the police station to meet with
Defendant. Defendant waived his Miranda rights and agreed to speak with Detective

                                             2
Meyers. Defendant admitted to shooting Melendrez.

{7}    Defendant told police that he had been eating with his wife at a Subway earlier that
evening. While at the Subway, Defendant received a call from a neighbor who said that
Melendrez was driving around Defendant’s home. Defendant claimed to have been worried
because he believed that Melendrez had been involved in drive-by shootings at Defendant’s
home in the past. Defendant thus wanted to go home and check on his property.

{8}     Defendant said that while he was on his way home he saw Melendrez’s truck at a
convenience store. Defendant explained that he decided to stop and tell Melendrez to leave
his family and his home alone. Defendant claimed that before he got out of his own car
Melendrez “made a move” as if to pull a gun from his waistband. And from inside of his
own car, Defendant responded by shooting Melendrez with a shotgun. Defendant then got
out of his car and shot Melendrez again. Defendant acknowledged that he could have simply
driven past the convenience store or driven away without shooting Melendrez. But,
Defendant explained, he did not do that because he wanted to tell Melendrez to leave him
alone.

{9}    Chief Medical Investigator Dr. Ross Zumwalt assisted in the autopsy of Melendrez’s
body. Melendrez had sustained one gunshot wound to his chest and one to his abdomen.
Dr. Zumwalt determined that these two gunshot wounds caused Melendrez’s death, and that
the manner of death was homicide.

{10} The jury convicted Defendant of first-degree felony murder contrary to Section 30-2-
1(A)(2), and shooting at or from a motor vehicle causing great bodily harm contrary to
Section 30-3-8(B). To avoid double jeopardy concerns, the district court vacated
Defendant’s conviction of shooting from a motor vehicle. The district court sentenced
Defendant to a term of life imprisonment followed by a minimum period of five years of
parole supervision. Defendant appealed directly to this Court. N.M. Const. art. VI, § 2
(“Appeals from a judgment of the district court imposing a sentence of death or life
imprisonment shall be taken directly to the supreme court.”). Rule 12-102(A)(1) NMRA.
In his direct appeal, Defendant claims that: (1) shooting at a motor vehicle cannot serve as
a predicate felony in the context of a felony murder conviction; (2) the court erred in
precluding evidence of drive-by shootings at Defendant’s home before 2010; (3) the jury
instructions on felony murder and self-defense failed to instruct on the essential elements
that Defendant did not act in self-defense or with sufficient provocation; and (4) admission
of the medical investigator’s testimony violated Defendant’s confrontation rights.

II.    DISCUSSION

A.     Shooting from a motor vehicle was improperly used as a predicate for felony
       murder in this case

1.     Introduction and standard of review

                                             3
{11} The jury found Defendant guilty of first-degree felony murder and shooting from a
motor vehicle causing great bodily harm. Defendant argues that the Legislature did not
intend to make shooting at or from a motor vehicle a predicate felony for purposes of felony
murder and that we should thus reverse his conviction of felony murder. More specifically,
Defendant contends that shooting at or from a motor vehicle is in essence a crime of assault
or battery and is not independent of or collateral to a murder committed during the course
of the shooting. In response, the State argues that shooting at or from a vehicle should
uniformly be treated as a collateral felony because, unlike aggravated battery, it is “a crime
which itself carries a high degree of risk to people other than the murder victim.”

{12} Defendant’s arguments raise questions of law, which we review de novo. State v.
Rowell, 1995-NMSC-079, ¶ 8, 121 N.M. 111, 908 P.2d 1379. The fundamental principle
of any attempt at statutory interpretation is to further the legislative intent and purposes
underlying the statute. See Sec. Escrow Corp. v. State Taxation & Revenue Dep’t, 1988-
NMCA-068, ¶ 6, 107 N.M. 540, 760 P.2d 1306. “In construing a statute, our charge is to
determine and give effect to the Legislature’s intent.” Marbob Energy Corp. v. N.M. Oil
Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135.

2.     New Mexico’s felony murder rule

{13} There are three types of first-degree murder in New Mexico: (1) willful and
deliberate killings; (2) killings committed “in the commission of or attempt to commit any
felony,” so-called felony murder; and (3) killings committed by an act greatly dangerous to
the lives of others so as to indicate a depraved mind. Section 30-2-1(A). To obtain a
conviction of felony murder, the prosecution must prove beyond a reasonable doubt that 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, that the
defendant caused the death of the victim during the commission or attempted commission
of the felony, and that the defendant intended to kill or knew that his or her acts created a
strong probability of death or great bodily harm. See UJI 14-202 NMRA.

{14} This Court has examined the felony murder doctrine on numerous occasions, and we
have repeatedly emphasized that the Legislature intended to limit the application of this
crime. See Campos v. Bravo, 2007-NMSC-021, ¶ 9, 141 N.M. 801, 161 P.3d 846; State v.
Campos, 1996-NMSC-043, ¶ 22, 122 N.M. 148, 921 P.2d 1266; State v. Ortega, 1991-
NMSC-084, ¶¶ 14-15, 112 N.M. 554, 817 P.2d 1196, abrogated on other grounds by State
v. Frazier, 2007-NMSC-032, ¶ 1, 142 N.M. 120, 164 P.3d 1; State v. Harrison, 1977-
NMSC-038, ¶¶ 12-14, 90 N.M. 439, 564 P.2d 1321, superseded by rule on other grounds
by Tafoya v. Baca, 1985-NMSC-067, ¶ 17, 103 N.M. 56, 702 P.2d 1001. Among the many
limitations we have placed on which felonies may serve as the predicate to a felony murder
conviction, the one that has generated the most confusion is the collateral-felony rule. This
rule requires that the predicate felony “be independent of or collateral to the homicide.”
Harrison, 1977-NMSC-038, ¶ 9. We have also held that “the predicate felony cannot be a
lesser-included offense of second-degree murder.” Campos, 1996-NMSC-043, ¶ 19.

                                              4
{15} “The collateral-felony doctrine derived from our concern that the prosecution may
be able to elevate improperly the vast majority of second-degree murders to first-degree
murders by charging the underlying assaultive act as a predicate felony for felony murder.”
Bravo, 2007-NMSC-021, ¶ 10 (internal quotation marks and citation omitted). Thus,

       the purpose of the collateral-felony limitation to the felony-murder doctrine
       is to further the legislative intent of holding certain second-degree murders
       to be more culpable when effected during the commission of a
       felony—thereby elevating them to first-degree murders—while maintaining
       the important distinction between the classes of second- and first-degree
       murders.

Campos, 1996-NMSC-043, ¶ 22.

{16} As a result, not all felonies can serve as a predicate for felony murder. For one thing,
some felonies are not inherently dangerous to human life or are not committed in a
dangerous manner. For another, all or virtually all murders include the commission of some
underlying felony in the nature of an assault or battery. See Bravo, 2007-NMSC-021, ¶ 12.
The theory of felony murder is that a defendant shall be presumed to have the requisite
culpability and mental state for first-degree murder due to the fact that the killing occurred
during the dangerous enterprise of committing a felony. See Harrison, 1977-NMSC-038,
¶ 9.

{17} In order to explain the purpose of the collateral-felony rule, we begin with the
relationship between second-degree murder and the crime of battery, which is the
prototypical lesser-included offense of murder that fails to meet the collateral-felony
requirement. See Bravo, 2007-NMSC-021, ¶ 12. When an individual unlawfully touches
or applies force to the person of another in a rude or insolent manner, the individual commits
the crime of battery. NMSA 1978, § 30-3-4 (1963). The level of the offense ranges from
a petty misdemeanor to a third-degree felony depending on the offender’s mental state, the
degree of harm inflicted, and the instrumentality used to commit the battery. See § 30-3-4;
NMSA 1978, § 30-3-5 (1969). A battery committed with an intent to injure that results in
painful temporary disfigurement or loss of function of a member or organ is a misdemeanor.
See § 30-3-4; NMSA 1978, § 30-3-5 (1969). When there is an intent to injure and the
battery results in great bodily harm, involves a deadly weapon, or is committed in a manner
that could result in great bodily harm, the crime is a third-degree felony. Section 30-3-5(A),
(C).

{18} If a battery results in death, the crime would remain a third-degree felony unless the
offender acted with an intent to kill or knowledge of a serious likelihood of death or great
bodily harm, in which case the crime is second-degree murder. See State v. Garcia,
1992-NMSC-048, ¶ 20, 114 N.M. 269, 837 P.2d 862; see also State v. Varela,
1999-NMSC-045, ¶ 14, 128 N.M. 454, 993 P.2d 1280 (concluding that the statutory
definition of great bodily harm includes death). Although second-degree murder and

                                              5
aggravated battery may differ in resulting harm or mens rea, or both, the offender’s
underlying intention to injure the victim is common to both. The crime of aggravated battery
does not require a felonious purpose other than injuring the victim and thus cannot be an
independent felony for purposes of felony murder. The difference between aggravated
battery and second-degree murder is thus a difference of degree, not of kind, which is why
aggravated battery is a lesser-included offense of second-degree murder. “[I]t is impossible
to commit second degree murder without committing some form of both aggravated assault
and aggravated battery.” Campos, 1996-NMSC-043, ¶ 23.

{19} Our case law requires us to “look, not to the nature of the act, but rather to whether
the legislature intended that a particular felony should be able to serve as a predicate to
felony murder.” Bravo, 2007-NMSC-021, ¶ 14 (internal quotation marks and citation
omitted). For purposes of the collateral-felony rule, legislative intent is better reflected in
an assessment of felonious purpose. When a crime’s objective is to injure or kill, the crime
cannot be said to be independent of a murder committed during the course of that crime. It
is this aspect of a predicate felony, together with its inherent dangerousness and the presence
of a second-degree murder mens rea, that elevates the homicide to first-degree murder. We
emphasize, however, that this assessment of a predicate felony’s purpose is principally
abstract in nature and is based largely on the Legislature’s definition of the crime. It is not
the kind of factual assessment of purpose formerly used in California that we expressly
rejected in Campos, 1996-NMSC-043, ¶¶ 12, 18-19.

{20} In Campos, even though we determined that the defendant’s conduct underlying his
conviction of criminal sexual penetration (CSP) and felony murder was “unitary,” id. ¶ 48,
we held that CSP was properly used as a predicate for felony murder because CSP is not a
lesser-included offense of second-degree murder, id. ¶ 25. CSP under NMSA 1978, Section
30-9-11 (2009) requires “engaging in [a] specified act[] or some form of penetration of the
genital or anal openings of another” without any mens rea that is similar to the mens rea
required for second-degree murder. Campos, 1996-NMSC-043, ¶ 25. The felonious purpose
of CSP—other than to injure the victim—can be described as the “imposition of sexual
activity on those who are not willing participants in fact or in law.” See State v. Stevens,
2014-NMSC-011, ¶¶ 26, 29, 38, 323 P.3d 901. The legislative intent underlying CSP is the
protection of people from unlawful intrusions into enumerated areas of the body. See State
v. Pierce, 1990-NMSC-049, ¶ 14, 110 N.M. 76, 792 P.2d 408 (recognizing that the
legislative intent underlying CSP of a minor is the protection from unlawful intrusions into
enumerated areas of the body). The legislative rationale for enumerating areas of the body
is the likelihood that “greater pain, embarrassment, psychological trauma, or humiliation
may result from contact with intimate body parts as compared to contact with other parts of
the body.” Id. ¶ 15. Unlawful contact with other areas of the body is generally punishable
under other statutes. Id. ¶ 16.

{21}   As this Court explained in Campos:

       [I]n those situations in which there is more than one statutory definition of

                                              6
       the requisite dangerous felony, a question may arise regarding which of the
       alternative statutory definitions is applicable for purposes of collateral-felony
       analysis. . . . In such a situation, the correct inquiry is whether it is possible
       to commit second degree murder without committing some form of the
       dangerous felony.

1996-NMSC-043, ¶ 23. Because it is possible to commit second-degree murder without
committing some form of CSP, CSP can serve as a predicate felony. Id. ¶ 25.

{22} Another example of a dangerous felony that has a felonious purpose independent
from the purpose of injuring a person is aggravated burglary. In Bravo, 2007-NMSC-021,
¶ 15, we held that aggravated burglary could serve as a predicate felony for a felony-murder
conviction reasoning that aggravated burglary required the unauthorized entry of a structure,
and the intent to commit a felony therein, elements which are not required for second-degree
murder. See id. Further, it did not matter that the intent of the defendant in Bravo to commit
a murderous battery was the basis for the commission of the predicate felony of aggravated
burglary because it is possible to commit aggravated burglary with a felonious purpose other
than physical injury to the victim. Id. Similarly, we held in State v. Duffy that robbery could
serve as a predicate felony for felony murder because “the theft of anything of value from
the person of another” is an independent felonious purpose apart from assaulting or battering
the victim. 1998-NMSC-014, ¶ 25, 126 N.M. 132, 967 P.2d 807 (internal quotation marks
and citation omitted), overruled on other grounds by State v. Tollardo, 2012-NMSC-008,
¶ 37 & n.6, 275 P.3d 110.

{23} In the present case, viewed from this independent-purpose-based perspective,
shooting at or from a motor vehicle is “an elevated form of aggravated battery,” State v.
Tafoya, 2012-NMSC-030, ¶ 27, 285 P.3d 604, and thus cannot be used as a predicate for
felony murder, see Campos, 1996-NMSC-043, ¶ 23. Shooting from a motor vehicle
“consists of willfully discharging a firearm at or from a motor vehicle with reckless
disregard for the person of another.” Section 30-3-8(B). “‘Reckless disregard’ requires that
Defendant’s conduct created a substantial and foreseeable risk and that Defendant
disregarded such risk and was wholly indifferent to the consequences of his conduct and the
welfare and safety of others.” State v. Mireles, 2004-NMCA-100, ¶ 38, 136 N.M. 337, 98
P.3d 727 (citing UJI 14-344 NMRA); see also UJI 14-1704 NMRA. However, shooting
from a motor vehicle must nevertheless still be committed with reckless disregard for
another person’s safety. Section 30-3-8(B). Thus, at its core, Section 30-3-8 is one of a
group of statutes that proscribe assault and battery. Much like battery or assault is enhanced
when committed with a deadly weapon, see NMSA 1978, §§ 30-3-2(A) (1963) & 30-3-5(C),
the act is a greater crime still when committed with both a deadly weapon and a vehicle. In
both situations, the Legislature determined that the crime is more serious and a greater threat
to human life, not because of any purpose or objective other than the commission of a
battery, but because of the use of a dangerous instrumentality. And just as aggravated
battery with a deadly weapon cannot be a collateral felony for purposes of felony murder,
the crime of shooting at or from a motor vehicle likewise lacks an independent felonious

                                               7
purpose from that required under second-degree murder.

{24} Accordingly, 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. See Campos, 1996-NMSC-043, ¶ 23 (“For example, it is impossible to commit
second degree murder without committing ‘some form’ of both aggravated assault and
aggravated battery. Thus, both of those offenses would always be deemed to be non-
collateral even though, under some statutory definitions, aggravated battery and aggravated
assault include one or more statutory elements that are not elements of second degree
murder.”). In other words, there must be a felonious purpose that is independent from the
purpose of endangering the physical health of the victim before the dangerous felony can be
used to elevate a second-degree murder to a first-degree murder. Our responsibility is to
make certain that, consistent with legislative intent, first-degree murder is reserved only for
the most reprehensible murders that are deserving of the most serious punishment under New
Mexico law. See Tafoya, 2012-NMSC-030, ¶ 38.

{25} Here, Defendant’s underlying felony—a form of aggravated battery—did 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. Defendant’s shooting from the motor vehicle directly resulted in
the victim’s death. And by itself, Defendant’s use of a motor vehicle to commit the killing
does not automatically elevate his crime of second-degree murder to first-degree murder.
Otherwise, the manner and method of killing would be essentially self-enhancing. Using a
vehicle to kill another, without more, is no different from killing another with a deadly
weapon; in both cases, the instrumentality of choice facilitates the killing, but in neither case
can the underlying felony—whether shooting from a motor vehicle contrary to Section
30-3-8 or aggravated battery with a deadly weapon contrary to Section 30-3-5(C)—be
reasonably described as inherently independent of the murder.

B.      The district court correctly denied Defendant’s request to introduce evidence
        about drive-by shootings that occurred before 2010

{26} Before trial, Defendant filed a motion asking that the State be required to produce
“crime scene photographs and other items,” relating to investigations into “gang disturbances
and violence initiated by members of the East-Side gang toward the Marquez family.”
Specifically, Defendant sought documents from investigations into incidents occurring on
August 12, 2005, October 3, 2008, September 19, 2009, and January 1, 2010. Defendant
alleged that the police had photographs and in some cases other physical evidence that was
relevant to “confirm the history of East-Side gang shootings directed” at Defendant’s home.
Defendant also claimed to have evidence that Melendrez had threatened Defendant at least
twice. The State filed a motion objecting to the release of photographs and other evidence
as irrelevant and inadmissible, and argued that none of the items sought connected
Melendrez to any of the incidents at Defendant’s house. The State asked that the court

                                               8
preclude any evidence or testimony relating to these prior incidents.

{27} Apparently following a hearing, the court granted Defendant’s request, in part.
Specifically, while the court denied disclosure of evidence produced or recovered in the
August 2005 investigation, the court ordered disclosure of the photographs and other
evidence relating to the later incidents. The State then filed a motion in limine seeking to
preclude Defendant from relying on evidence from the 2008, 2009, and 2010 incidents. The
State argued that the probative value of such evidence was substantially outweighed by the
unfair prejudice and that the evidence would confuse and mislead the jury. In support of its
argument, the State observed that Melendrez was not mentioned in any of the drive-by
shootings at Defendant’s house and that even the most recent of the incidents documented
in these reports had taken place over a year before Defendant killed Melendrez.

{28} The district court issued a written decision again ordering the disclosure of the
photographs and other evidence relating to the later incidents and again denying Defendant’s
motion with respect to the earliest incident. The State filed an amended motion in limine
that same day. In that motion, the State noted that it had complied with the court’s
production order but again asked the court to preclude use of that evidence at trial. The State
argued that the evidence was not relevant because Melendrez was not mentioned in any of
the reports. The State also sought preclusion of any of the victim’s prior bad acts under Rule
11-404(A) NMRA. The State specifically referenced a charge Melendrez had pending at the
time he was killed, as well as exclusion of defense witnesses, as irrelevant.

{29} Defendant filed his own motion in limine a few days later. In it, Defendant detailed
several past incidents that he argued were relevant to his claim of self-defense. Defendant
described: (1) a complaint filed by Defendant’s brother Omar on January 15, 2006, about a
drive-by shooting at 5010 Ortega Road, before Defendant lived there; (2) an additional
complaint filed by Omar about a drive-by shooting on August 24, 2006, also before
Defendant lived there; (3) a report made by Defendant’s cousin Junie Talamantes about a
drive-by shooting on October 3, 2008; (4) a report made by Defendant’s girlfriend Meiley
Estupinon concerning a drive-by shooting on September 19, 2009 ; (5) a report by Defendant
about a drive-by shooting on January 1, 2010; (6) a January 11, 2011, incident in which
Melendrez allegedly assaulted a person named Hector Andrade with a firearm; and (7) a
report allegedly made by Arturo Chaves that he saw Melendrez drive by and shoot at
Defendant’s residence on March 10, 2011, about thirty minutes before Defendant killed
Melendrez. Defendant claimed that each of these incidents was relevant to show his state
of mind at the time he killed Melendrez and to show that Defendant reasonably believed that
Melendrez was armed when he was shot and killed by Defendant.

{30} The court heard argument on the motions on the first day of trial. Defendant again
explained what had happened at these incidents and argued that they were all relevant to his
claim of self-defense. Defendant claimed that he knew about the drive-by shootings that
occurred at the home before he had moved in. Defendant argued that the drive-by shootings
were relevant to his state of mind when he confronted Melendrez on March 10, 2011,

                                              9
because he and his family had endured the shootings for so long that Defendant was fearful
for himself and his family.

{31} The district court ruled that evidence concerning drive-by shootings that had
occurred before January 1, 2010, would be excluded. The court found that shootings before
2010 were “too remote in time” and that the evidence of drive-by shootings after 2010
provided a sufficient basis for Defendant to present his self-defense claim.

{32} On appeal to this Court, Defendant argues that the exclusion of this evidence was
reversible error. Defendant argues that the evidence was admissible under Rule 11-405(B)
NMRA as an element of his self-defense claim—the element of fear of immediate harm.
Defendant claims that evidence of a victim’s prior violent conduct can be admitted to show
a defendant’s fear of the victim, and that he had a right to “formulate a strategy to defend the
charges brought by the State.” Defendant also argues that the New Mexico Rules of
Evidence call for the liberal admission of evidence tending to support a criminal defense.

{33} “In general, we review a trial court’s admission or exclusion of evidence for abuse
of discretion. An abuse of discretion arises when the evidentiary ruling is clearly contrary
to logic and the facts and circumstances of the case.” State v. Armendariz, 2006-NMSC-036,
¶ 6, 140 N.M. 182, 141 P.3d 526 (citation omitted), overruled on other grounds by State v.
Swick, 2012-NMSC-018, ¶ 31, 279 P.3d 747.

       When a defendant is claiming self-defense, his or her apprehension of the
       victim is an essential element of his or her claim. Therefore, under Rule
       11-405(B), evidence of specific instances of the victim’s prior violent
       conduct of which the defendant was aware may be admitted to show the
       defendant’s fear of the victim.

Armendariz, 2006-NMSC-036, ¶ 17.

{34} In Armendariz, this Court held that Rule 11-405(B) allows evidence of specific
instances when the evidence is relevant to an essential element of a charge, claim, or
defense. 2006-NMSC-036, ¶ 17. Because a defendant’s fear of the victim is an essential
element of a self-defense claim, Rule 11-405(B) allows a defendant to establish that element
by presenting “evidence of specific instances of the victim’s prior violent conduct of which
the defendant was aware . . . .” See 2006-NMSC-036, ¶ 17. This evidence may not be
presented simply to establish the victim’s purportedly violent character, which is not an
element of self-defense. Id. Indeed, such evidence is merely “circumstantial evidence that
tends to show that the victim acted in conformity with his or her character on a particular
occasion.” Id. “Thus, under Rule 11-405(B) NMRA, only reputation or opinion evidence”
is admissible to show that the victim was the first aggressor. Armendariz, 2006-NMSC-036,
¶ 17. Evidence of specific instances of conduct is not admissible for that purpose. Id.

{35}   The excluded evidence consisted of photographs and witnesses who would testify

                                              10
about the four incidents reported by people other than Defendant. According to Defendant’s
proffer, none of the people who reported drive-by shootings identified Melendrez as the
perpetrator. Indeed, the closest these events came to implicating Melendrez was a rumor that
Melendrez’s gang was intending a drive-by shooting on the weekend of one incident, and
Defendant’s brother, Omar, hearing someone yell the name of the gang immediately after
or during another shooting. Defendant failed to proffer any evidence that Melendrez was
the person who committed or even prompted the drive-by shootings. Even if the purpose of
the excluded evidence was to establish an element of Defendant’s self-defense claim, the
district court properly excluded the evidence because Defendant failed to establish that the
events were specific instances of Melendrez’s conduct as opposed to the conduct of someone
else and Defendant therefore failed to prove the relevance of this evidence to Defendant’s
apprehension of Melendrez. See Rule 11-104(B) NMRA (“When the relevance of evidence
depends on whether a fact exists, proof must be introduced sufficient to support a finding
that the fact does exist.”). As a result, the evidence was not admissible as specific instances
of Melendrez’s conduct.

{36} In explaining its decision to exclude the incidents that took place before 2010, the
district court observed that Defendant was allowed to present ample testimony about
Melendrez’s earlier violent conduct to enable him to present his self-defense claim. The
district court permitted Defendant to present evidence of drive-by shootings at his home that
occurred on January 1, 2010, in April of 2010, and on another unspecified date in 2010. The
court allowed testimony about circumstances in which Melendrez purportedly harassed
Defendant and his family. One witness testified on Defendant’s behalf that Melendrez had
once driven up to Defendant and said that he was going to kill Defendant. The district court
additionally permitted Defendant to present testimony that a neighbor saw Melendrez drive
by Defendant’s home and shoot at it about thirty minutes before Defendant killed Melendrez,
even though there was no evidence that Defendant knew about that incident before he killed
Melendrez.

{37} In addition to the district court’s generous admission of Defendant’s requested
evidence, each of these supposed incidents appeared in the self-defense instruction
Defendant tendered. Further, Defendant argued that these incidents caused him to live in
fear of more drive-by shootings at his home. This fear, in turn, caused Defendant to
“reasonabl[y]” believe that Melendrez was reaching for a gun in the convenience store
parking lot, and shooting Melendrez was therefore an act of self-defense. On this record, we
simply cannot say that Defendant was denied the opportunity to establish his purported fear
of immediate harm from Melendrez given the use of these specific examples of Melendrez’s
violent conduct.

{38} Accordingly, the district court did not abuse its discretion in excluding some of the
specific instances of Melendrez’s purported violent conduct. These incidents were remote
in time from Defendant’s killing of Melendrez, the excluded evidence established at most
the impermissible inference that Melendrez had a character trait for violence, and Defendant
failed to show that these specific instances of conduct were perpetrated by Melendrez.

                                              11
C.     Defendant’s confrontation rights were not violated

{39} Chief Medical Investigator Dr. Ross Zumwalt assisted in the autopsy of Melendrez’s
body. Dr. Zumwalt worked with and supervised Dr. John Burns, a trainee in forensic
pathology, in conducting the autopsy. Dr. Zumwalt may have left during part of the autopsy,
but he specifically recalled being present for at least part of the procedure and he recalled
examining Melendrez’s wounds. In addition to analyzing the wounds, Dr. Zumwalt
considered the trajectories of the bullets, and he personally arrived at his own conclusions
about both the wounds and their trajectories. At the autopsy, Dr. Zumwalt reviewed Dr.
Burns’s conclusions and signed the autopsy report.

{40} At trial, the defense moved to strike Dr. Zumwalt’s testimony because Defendant was
unable to confront Dr. Burns. The district court denied the motion, stating that precedent
supported Dr. Zumwalt’s testimony where he was present and supervising during the autopsy
and where he had personal knowledge of how the autopsy was conducted.

{41} “We generally review Confrontation Clause claims de novo.” State v. Cabezuela,
2011-NMSC-041, ¶ 49, 150 N.M. 654, 265 P.3d 705. Under the Confrontation Clause, “an
out-of-court statement that is both testimonial and offered to prove the truth of the matter
asserted may not be admitted unless the declarant is unavailable and the defendant had a
prior opportunity to cross-examine the declarant.” State v. Navarette, 2013-NMSC-003, ¶
7, 294 P.3d 435, cert. denied, ____ U.S. ____, 134 S. Ct. 64 (2013). In Cabezuela, this
Court held that the testimony of a supervising pathologist regarding an autopsy performed
by a forensic pathology fellow did not violate the Confrontation Clause where the record
indicated the supervising pathologist “had personal knowledge of and participated in making
the autopsy report findings by virtue of her own independent participation in the microscopic
exam, examination of the body and the injuries, and examination of all the photographs.”
2011-NMSC-041, ¶¶ 48-52 (distinguishing Melendez-Diaz v. Massachusetts, 557 U.S. 305
(2009), and Bullcoming v. New Mexico, ____ U.S. ____, 131 S. Ct. 2705 (2011)); see also
State v. Gonzales, 2012-NMCA-034, ¶ 26, 274 P.3d 151 (“After Cabezuela, we know that
a pathologist who participated in an autopsy can testify to his or her opinion, including
opinions utilizing another participating doctor’s notes.”); Marshall v. People, 2013 CO 51,
¶ 19, 309 P.3d 943 (“Other courts that have considered this question have found that
supervisor testimony satisfies the Confrontation Clause when the supervisor prepares or
signs the report.”).

{42} Here, the record indicates that Dr. Zumwalt had personal knowledge of and
participated in the autopsy and preparation of the autopsy findings. He reviewed and signed
the autopsy report. The Confrontation Clause creates no barrier to Dr. Zumwalt testifying
about his own observations from his examination of the body, the wounds, and the bullet
trajectories. Under Cabezuela, there was no violation of the Confrontation Clause. 2011-
NMSC-041, ¶¶ 48-52.

D.     Defendant’s remaining claims

                                             12
{43} At trial, the parties discussed the proposed jury instructions extensively. The State
proffered a full version of the instructions while Defendant submitted his own, revised
version of the self-defense instruction, which the court accepted. Defendant raised no
objection to the State’s proffered instruction on felony murder, and he did not submit his
own felony-murder instruction.

{44}   The district court instructed the jury that Defendant killed Melendrez in self-defense
if

              1. There was an appearance of immediate danger of death or great
       bodily harm to the defendant as a result of Julian Melendrez, threatening to
       kill defendant, engaging in violent and intimidating acts against the
       defendant, and making a movement toward the defendant that created a belief
       in defendant’s mind that Julian Melendrez was reaching for a gun to shoot
       defendant; and

               2. The defendant was in fact put in fear by the apparent danger of
       immediate death or great bodily harm and killed Julian Melendrez because
       of that fear; and

             3. A reasonable person in the same circumstances as the defendant
       would have acted as the defendant did.

The court further instructed the jury that “[t]he burden is on the state to prove beyond a
reasonable doubt that the defendant did not act in self-defense. If you have a reasonable
doubt as to whether the defendant acted in self-defense you must find the defendant not
guilty.” The felony-murder jury instructions did not contain an element of unlawfulness;
that is, the instructions did not duplicate the language that the State must disprove self-
defense beyond a reasonable doubt.

{45} Defendant argues that, even though the jury was instructed on self-defense in a
separate instruction of his own authorship, the district court erroneously failed to include a
lack of self-defense as an element of felony-murder. Conceding that he failed to preserve
the issue, Defendant argues that the district court’s omission of self-defense in the
felony-murder instruction constitutes fundamental error.

{46} Because Defendant did not object to the jury instructions as given or offer his own
instructions, we review for fundamental error. State v. Cunningham, 2000-NMSC-009, ¶¶
8, 11, 128 N.M. 711, 998 P.2d 176. In a review for fundamental error, we first determine
whether an error occurred. State v. Silva, 2008-NMSC-051, ¶ 11, 144 N.M. 815, 192 P.3d
1192, holding modified on other grounds by State v. Guerra, 2012-NMSC-027, ¶¶ 12-15,
284 P.3d 1076. If an error occurred, we determine whether the error was fundamental; we
employ the fundamental error exception “very guardedly,” and apply it “only under
extraordinary circumstances to prevent the miscarriage of justice.” Silva, 2008-NMSC-051,

                                             13
¶ 13 (internal quotation marks and citations omitted).

        Error that is fundamental must be such error as goes to the foundation or
        basis of a defendant’s rights or must go to the foundation of the case or take
        from the defendant a right which was essential to his defense and which no
        court could or ought to permit him to waive.

Cunningham, 2000-NMSC-009, ¶ 13 (internal quotation marks and citation omitted).

{47} This Court has outlined special concerns in reviewing for fundamental error in the
context of jury instructions. Indeed,

        [w]here a man’s fundamental rights have been violated, while he may be precluded
        by the terms of the statute or the rules of appellate procedure from insisting in this
        court upon relief from the same, this court has the power, in its discretion, to relieve
        him and to see that injustice is not done.

Id. ¶ 12 (internal quotation marks and citation omitted). “In applying the fundamental error
analysis to deficient jury instructions, we are required to reverse when the misinstruction
leaves us with no way of knowing whether the conviction was or was not based on the lack
of the essential element.” State v. Montoya, 2013-NMSC-020, ¶ 14, 306 P.3d 426 (internal
quotation marks and citation omitted).

{48} The uniform jury instruction for felony murder lists the essential elements of the
crime. See UJI 14-202. Self-defense is not included. See id. But the self-defense
instruction use notes provide that, “[i]f this instruction is given, add to the essential elements
instruction for the offense charged, ‘The defendant did not act in self defense.’” Use Note
1, UJI 14-5171 NMRA. In Cunningham, the defendant claimed that the deliberate-intent
murder instruction was fundamentally flawed because the district court had failed to include
“unlawfulness” in the instruction. 2000-NMSC-009, ¶ 8 (internal quotation marks and
citation omitted). “In order to prove unlawfulness, the State must disprove the defendant’s
self-defense claim beyond a reasonable doubt.” State v. Benally, 2001-NMSC-033, ¶ 10,
131 N.M. 258, 34 P.3d 1134. The defendant in Cunningham did not preserve the issue for
review, and this Court reviewed his claim for fundamental error. See 2000-NMSC-009, ¶
8. We held there that fundamental error did not occur because the jury would not have been
confused or misdirected where a separate and proper self-defense instruction was provided
to the jury. Id. ¶ 14. This Court went on to hold that the separate and accurate self-defense
instruction cured the error of not including the element of unlawfulness in the
deliberate-intent murder instruction where “a reasonable juror would understand that an
acquittal based on self-defense is inconsistent with a guilty verdict on first-degree
deliberate-intent murder.” Id. ¶¶ 17, 22. The Court was “convinced that the element of
unlawfulness was decided by the jury when they contemplated the separate self-defense
instruction.” Id. ¶ 23. We held that “it would be improper for this Court to exercise its
inherent power in this case when it is unlikely that the interests of substantial justice would

                                               14
be furthered.” Id.

{49} Here, Defendant claimed self-defense, and the district court used the self-defense
instruction. As a result, the jury should also have been instructed that self-defense was an
essential element of felony murder. It was fundamental error to omit this element. The
error, however, is the same as the one that was before us in Cunningham. Id. ¶¶ 7-8.
Because Defendant did not object to the instructions as given or offer his own instructions,
Cunningham makes it plain that the separate, properly submitted self-defense instruction
cured any error. Id. ¶¶ 17, 22-23. The jury could not have reached its verdict under the
instructions given without finding beyond a reasonable doubt that Defendant did not act in
self-defense. See State v. Barber, 2004-NMSC-019, ¶ 29, 135 N.M. 621, 92 P.3d 633
(“Error is not fundamental when the jury could not have reached its verdict without also
finding the element omitted from the instructions.”); see also State v. Smith, 2001-NMSC-
004, ¶ 40, 130 N.M. 117, 19 P.3d 254 (“Juries are presumed to have followed the written
instructions.”). Accordingly, even though the district court erred by not including the
essential element of self-defense in the felony-murder jury instruction, the separate properly
submitted self-defense instruction cured the error.

{50} Ordinarily, in a case such as this one, we would remand for the purpose of having the
district court vacate Defendant’s felony murder conviction and enter a conviction of second-
degree murder. See Tafoya, 2012-NMSC-030, ¶ 34. However, because of the errors
committed in the felony-murder jury instruction, we instead remand for the purpose of
vacating the felony-murder conviction and reinstatement of the shooting from a motor
vehicle conviction.

{51} Defendant also argues that there was ample evidence to support a finding that he
acted with sufficient provocation such as to reduce felony murder to voluntary manslaughter
under a theory of imperfect self-defense. Because we are vacating Defendant’s first-degree
felony-murder conviction, we do not reach the issue of whether the district court erred by
not including the elements of legally-adequate provocation in the felony-murder jury
instruction.

III.   CONCLUSION

{52} We hold that the crime of shooting at or from a motor vehicle cannot serve as the
predicate felony in a felony-murder conviction. We reject Defendant’s remaining claims of
error. We remand to the district court with instructions to enter an amended judgment and
sentence vacating Defendant’s first-degree felony-murder conviction and reinstating his
conviction of shooting from a motor vehicle.

{53}   IT IS SO ORDERED.

                                              ____________________________________
                                              PETRA JIMENEZ MAES, Senior Justice

                                             15
WE CONCUR:

____________________________________
CHARLES DANIELS, Chief Justice

____________________________________
BARBARA VIGIL, Justice

EDWARD L. CHÁVEZ, Justice, specially concurring

JUDITH K. NAKAMURA, Justice, dissenting

CHÁVEZ, Justice (specially concurring).

{54} This case is the first time since the enactment of NMSA 1978, Section 30-3-8(B)
(1993) that a defendant has questioned whether the felony shooting at or from a motor
vehicle can support a felony-murder conviction without violating the collateral-felony
doctrine. I agree with the majority opinion that this felony cannot serve as the predicate
felony for felony murder without violating the collateral-felony doctrine, a doctrine that this
Court first described in 1977. See State v. Harrison, 1977-NMSC-038, ¶ 9, 90 N.M. 439,
564 P.2d 1321, superseded by rule on other grounds by Tafoya v. Baca, 1985-NMSC-067,
¶ 17, 103 N.M. 56, 702 P.2d 1001. Therefore, a prosecutor who wants to pursue a first-
degree murder conviction for a death resulting from a drive-by shooting or shooting into a
dwelling may charge the accused with depraved mind murder1 pursuant to NMSA 1978,
Section 30-2-1(A)(3) (1994). This charge has been available to prosecutors since before the
1987 enactment of Section 30-3-8. See generally State v. McCrary, 1984-NMSC-005, 100
N.M. 671, 675 P.2d 120 (concluding that depraved mind murder was upheld when the
defendant shot numerous times from a truck into several tractor-trailers and cabs and killed
one person, even though the defendant did not know that a person was in the tractor-trailer).
Proving depraved mind murder does not require proof that the defendant intended to kill.
See Wayne R. LeFave, Criminal Law § 14.4, at 779 (5th ed. 2010). Proof that a defendant
killed someone by engaging in “outrageously reckless conduct . . . with ill will, hatred, spite,
or evil intent [and with] total indifference for the value of human life” is proof that the
defendant acted with a depraved mind. UJI 14-203 NMRA. This Court has recently noted
on more than one occasion that drive-by shootings provide a clear example of the type of
gravity and depravity required for a depraved mind murder conviction. State v. Dowling,
2011-NMSC-016, ¶¶ 2-3, 8-11, 150 N.M. 110, 257 P.3d 930; State v. Reed,
2005-NMSC-031, ¶ 31, 138 N.M. 365, 120 P.3d 447. It does not matter that the defendant
intended to kill a specific person, but instead killed someone else who was in the line of fire.
See State v. Sena, 1983-NMSC-005, ¶ 9, 99 N.M. 272, 657 P.2d 128.


       1
       If the evidence supports the charge, a prosecutor may also charge an accused with
premeditated murder under Section 30-2-1(A).

                                              16
{55} I also agree with Justice Nakamura that having the Legislature “[e]numerat[e] the
felonies that may serve as predicate felonies for felony murder will clarify matters greatly.”
Dissenting op. ¶ 72. However, even if the Legislature were not to accept this invitation, in
my view, the majority opinion does add clarity to how courts should apply the collateral-
felony doctrine.

{56}   In State v. Campos, this Court stated that it

       is impossible to commit second degree murder without committing some
       form of both aggravated assault and aggravated battery. Thus, both of those
       offenses would always be deemed to be non-collateral even though, under
       some statutory definitions, aggravated battery and aggravated assault include
       one or more statutory elements that are not elements of second degree
       murder.

1996-NMSC-043, ¶ 23, 122 N.M. 148, 921 P.2d 1266. The Legislature categorizes the
crimes listed in Chapter 30, Article 3 of the Criminal Code as assault and battery crimes,
which includes the crime of shooting at or from a motor vehicle. All of the dangerous
felonies that this Court has held support a felony-murder conviction without violating the
collateral-felony doctrine, with one notable exception, are crimes not found in Chapter 30,
Article 3. See majority op. ¶¶ 20-23 (listing as examples felony murder cases involving
criminal sexual penetration, NMSA 1978, § 30-9-11 (2009); aggravated burglary, NMSA
1978, § 30-6-4 (1989); and robbery, NMSA 1978, § 30-16-2 (1973) as appropriate predicate
felonies).

{57} The one notable exception is the crime of willfully shooting at a dwelling.2 See State
v. Varela, 1999-NMSC-045, ¶ 21, 128 N.M. 454, 993 P.2d 1280; see also § 30-3-8(A). In
Varela several shots were fired into a mobile home; the bullet struck the owner as he slept,
ultimately resulting in his death. 1999-NMSC-045, ¶ 2. The Varela Court held that shooting
at a dwelling may serve as a predicate felony without violating the collateral-felony doctrine
because Section 30-3-8 prohibits any shooting at a dwelling and not

       every instance of shooting at a dwelling which results in death is
       automatically felony murder. If a defendant shoots into a dwelling, believing
       it to be abandoned, and kills an occupant, then he or she would be guilty of
       the felony [shooting at a dwelling], but would not necessarily be guilty of
       felony murder. In such a fact pattern, a jury might find the requisite mens rea
       for second degree murder absent, precluding a conviction for felony murder.

1999-NMSC-045, ¶¶ 13, 18, 21. The requisite mens rea for second-degree murder requires


       2
        State v. Varela, 1999-NMSC-045, ¶ 21, 128 N.M. 454, 993 P.2d 1280 did not
address shooting at an occupied building.

                                             17
the defendant to “know that his or her acts create a strong probability of death or great bodily
harm,” and therefore an accidental killing would not satisfy the mens rea for second degree
murder. Id. ¶ 18. Because the felony of shooting at a dwelling does not have a mens rea
similar to the mens rea for second-degree murder, it can be used as a predicate felony for
felony-murder purposes. Id.

{58} The crime of shooting at a dwelling is complete once a person willfully shoots into
a dwelling, whether occupied or not. Since its enactment, the crime of shooting at a dwelling
has never required that the dwelling be occupied. In its original version Section 30-3-8 read,
in relevant part: “[s]hooting at [an] inhabited dwelling . . . consists of willfully discharging
a firearm at an inhabited dwelling house . . . . As used in this section, ‘inhabited’ means
currently being used for dwelling purposes, whether occupied or not.” Id. (1987). In 1993
the Legislature simply removed “inhabited” from the statute, making it a crime to willfully
shoot at a dwelling—a place where a person lives.

{59} By contrast, when the Legislature enacted the crime of shooting at or from a motor
vehicle in 1993, it included an element not required for shooting at a dwelling or occupied
building. Section 30-3-8(B) provides that “[s]hooting at or from a motor vehicle consists
of willfully discharging a firearm at or from a motor vehicle with reckless disregard for the
person of another.” Id. (1993). The crime of “shooting at a dwelling” does not require that
the shooter discharge the firearm with reckless disregard for another person. To find
Defendant guilty of the second-degree felony of shooting from a motor vehicle, the jury had
to find that he willfully shot a firearm from a motor vehicle with reckless disregard for
another person and caused great bodily harm to the victim. See UJI 14-344 NMRA. To find
that Defendant acted in reckless disregard, the jury had to find that he “knew that his conduct
created a substantial and foreseeable risk, that he disregarded that risk and that he was
wholly
 indifferent to the consequences of his conduct and the welfare and safety of others.” See UJI
14-1704 NMRA (as modified).

{60} In my opinion, the additional element sufficiently distinguishes shooting at or from
a motor vehicle from the crime of shooting at a dwelling for purposes of the collateral-felony
doctrine. When one willfully discharges a firearm with reckless disregard for another
person, the circumstances known to the shooter are such that the shooter knows that his or
her act of willfully shooting—not driving or riding in a motor vehicle—is what creates a
strong probability of death or great bodily harm. Thus, I conclude that like a form of
aggravated battery or aggravated assault (i.e., assault while wearing a mask contrary to
NMSA 1978, Section 30-3-2(B) (1963)), the crime of shooting from a motor vehicle cannot
be used as a collateral felony, although it includes a statutory element—the motor
vehicle—that is not an element of second-degree murder.

{61} Although I respect both the majority and the dissenting opinions in this case, I am
persuaded that the majority opinion is consistent with the collateral-felony doctrine and its
purposes. I therefore concur with the majority opinion.

                                              18
                                               ____________________________________
                                               EDWARD L. CHÁVEZ, Justice

NAKAMURA, Justice (dissenting).

{62} Shooting at or from a motor vehicle, a violation of NMSA 1978, Section 30-3-8(B)
(1993), is a collateral felony and may serve as a predicate felony for felony murder.
Defendant’s felony-murder conviction should be affirmed. Because I disagree with the
central holding of the majority’s opinion, I do not join or offer any comments as to the other
conclusions reached by the majority opinion.

{63} The majority opinion reaches the conclusion that shooting at or from a motor vehicle
is not a collateral felony by departing from settled law without justification. Consequently,
greater confusion in an already difficult area of law is likely. But the true source of the
confusion in this area of law lies with our felony-murder statute itself. This Court’s attempts
to make clear and precise that which is vague and inexact have not and are unlikely to
provide the type of succinct guidance our bench and bar require as to the applicability of our
felony-murder rule. As a majority of other states have done, our Legislature could elect to
enumerate the felonies that may serve as predicate felonies and greatly help clarify this area
of law. See John O’Herron, Felony Murder without a Felony Limitation: Predicate Felonies
and Practical Concerns in the States, 46 No. 4 Crim. Law Bull., art. 4, 668 (2010) (“Thirty-
five states have felony murder statutes that enumerate predicate felonies.”); see also State
v. Willis, 1982-NMCA-151, ¶ 8, 98 N.M. 771, 652 P.2d 1222 (“The power to define crimes
and to establish criminal penalties is a legislative function.”); cf. People v. Farley, 210 P.3d
361, 411 (Cal. 2009) (observing that the policy concerns animating the Legislature to
enumerate a particular felony offense as a predicate felony for first-degree felony murder
“remain within the Legislature’s domain,” and acknowledging the judiciary’s limited
authority to narrow or modify the plain language of a validly enacted criminal statute).

I.     THIS COURT’S COLLATERAL-FELONY JURISPRUDENCE COMPELS
       THE CONCLUSION THAT SHOOTING AT OR FROM A MOTOR
       VEHICLE IS A COLLATERAL FELONY

{64} New Mexico’s felony-murder statute prohibits the killing of one human being by
another “in the commission of or attempt to commit any felony . . . .” NMSA 1978, § 30-2-
1(A)(2) (1994) (emphasis added). Yet it is not true in New Mexico that “any felony” may
serve as a predicate felony for felony murder. See generally State v. Yarborough,
1996-NMSC-068, ¶ 11, 122 N.M. 596, 930 P.2d 131 (observing that a strict reading of the
“any felony” language of Section 30-2-1(A)(2) is inappropriate, and stating that “[w]e look
beyond the literal word of the statute to the common-law concept most likely intended by
the legislature to be embodied in the statute”). Through the development of an elaborate
body of case law, this Court has turned New Mexico’s “broad felony-murder statute into one
of the most narrow felony-murder rules in the country.” O’Herron, supra, at 679. The
collateral-felony rule is but one of the limitations we have placed on our felony-murder rule.

                                              19
The majority opinion seeks to clarify the purpose and application of this doctrine, but only
makes matters more obscure. The contention that our collateral-felony rule derived from
concern that the vast majority of second-degree murders might be improperly elevated to
first-degree murders, Maj. Op. ¶ 15, does not correctly explain the origins of the collateral-
felony rule. Additionally, the majority opinion’s explanation of the rule’s purpose is
incomplete. See id. ¶ 17.

{65} The collateral-felony rule “is more commonly referred to as the merger doctrine
because the predicate felony and the homicide are said to merge.” State v. Campos,
1996-NMSC-043, ¶ 8 n.1, 122 N.M. 148, 921 P.2d 1266; see also Roary v. State, 867 A.2d
1095, 1103 (Md. 2005) (stating that the merger doctrine is also referred to as the collateral-
felony doctrine); State v. Williams, 25 S.W.3d 101, 113 (Mo. Ct. App. 2000) (same). This
Court elected not to use the phrase “merger doctrine,” however, but embraced the phrase
“collateral-felony rule” instead to avoid any possible confusion that might arise from
duplicative terminology usage. See, e.g., State v. Pierce, 1990-NMSC-049, ¶ 46, 110 N.M.
76, 792 P.2d 408 (observing that, in the double jeopardy context, “[t]he rule of merger
precludes an individual’s conviction and sentence for a crime that is a lesser included offense
of a greater charge upon which defendant has also been convicted.”) (emphasis added).

{66} The merger doctrine is not widely accepted, but has been adopted in jurisdictions,
like New Mexico, where the Legislature has not expressly enumerated the felonies capable
of supporting a felony-murder conviction. State v. Godsey, 60 S.W.3d 759, 774-75 (Tenn.
2001). The doctrine is a principle for discerning legislative intent. Id. at 774. It is a
judicially-created mechanism for assessing whether the Legislature intended to permit a
particular felony to serve as a predicate felony for felony murder. State v. Duffy,
1998-NMSC-014, ¶ 23, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by State
v. Tollardo, 2012-NMSC-008, 275 P.3d 110. The doctrine’s purpose becomes clearer still
when the function of the doctrine in application is considered.

{67} The merger doctrine prevents “the felony-murder rule from being improperly
expanded to encompass nearly all killings, rather than just killings occurring in the course
of an independent felony.” 1 Paul H. Robinson, Criminal Law Defenses § 103(a) at 496
(1984). The doctrine “restricts acceptable predicate felonies by treating certain felonies as
inseparable from the homicides to which they give rise. The paradigm case is the killing that
takes place in the course of an assault.” Claire Finkelstein, Merger and Felony Murder, in
DEFINING CRIMES: ESSAYS ON THE SPECIAL PART OF THE CRIMINAL LAW, 219 (R.A. Duff
& Stuart Green eds., 2005). Because the vast majority of homicides are predicated on an
initial felonious assault, “every felonious assault ending in death automatically would be
elevated to murder in the event a felonious assault could serve as the predicate felony for
purposes of the felony-murder doctrine.” People v. Hansen, 885 P.2d 1022, 1028 (Cal.
1994), overruled by People v. Sarun Chun, 203 P.3d 425 (2009). Absent the merger
limitation, two serious problems arise. First, “application of the felony-murder doctrine
would allow for conviction of the defendant for murder without the prosecution having to
prove the existence of malice.” Campos, 1996-NMSC-043, ¶ 10. Such a result is

                                              20
inconsistent with basic principles of Anglo-American criminal law. See generally People
v. Aaron, 299 N.W.2d 304, 317 (Mich. 1980) (criticizing the felony-murder rule on grounds
that it “completely ignores the concept of determination of guilt on the basis of individual
misconduct . . . [and] erodes the relation between criminal liability and moral culpability.”
(internal quotation marks and citations omitted)). Second, the felony-murder rule “would
eliminate the mens-rea requirement for murder in most homicide cases and circumvent the
legislative gradation system for classes of homicides.” Campos, 1996-NMSC-043, ¶ 10. It
is fair to infer that no Legislature would intend its own criminal penalty scheme to be
circumvented, and avoiding this outcome is one of the primary policy rationales cited to
justify the existence and adoption of the merger doctrine. See generally Roary, 867 A.2d at
1103-05 (discussing the conceptual justifications underlying the merger doctrine).

{68} While there is agreement about the underlying purposes of the merger doctrine,
courts that have adopted it are divided on how it is to be applied. As one treatise notes,
“[t]he difficulty arising from the merger doctrine lies in determining which underlying
felonies should merge.” 1 Robinson, supra at 498. In Campos, we noted three distinct
methods utilized in varying jurisdictions: the independent felonious purpose test; the same
act test; and deference to legislative intent. 1996-NMSC-043, ¶¶ 11-14. We rejected all
three approaches because “New Mexico has a distinct version of the felony-murder doctrine,
which calls for a different formulation of the” merger doctrine. Id. ¶ 16. Our distinct form
of felony murder is an outgrowth of this Court’s holding in State v. Ortega,
1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196, abrogated on other grounds as recognized
by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d 683.

{69} This Court’s decision in Ortega was a significant turning point in our felony-murder
jurisprudence. Ortega held that the prosecution must demonstrate “that the defendant
intended to kill (or was knowingly heedless that death might result from his conduct)” to
secure a felony-murder conviction. Id. ¶ 25. The significance of this determination, with
respect to our continued adherence to the merger doctrine, has been largely overlooked.
Requiring, as Ortega does, the prosecution to prove the defendant acted with the mens rea
commensurate with second-degree murder to secure a felony-murder conviction remedied
the central ills the merger doctrine (as traditionally conceived) was adopted to cure. After
Ortega, there is no concern a defendant can be convicted of murder without the State
proving malice. See Campos, 1996-NMSC-043, ¶ 17. And Ortega largely foreclosed the
possibility that the felony-murder doctrine might frustrate our Legislature’s scheme of
graduated penalties for the different classes of homicides. See Campos, 1996-NMSC-043,
¶ 17 (“Our felony-murder rule only serves to raise second-degree murder to first-degree
murder when the murder is committed in the course of a dangerous felony.”). Having
significantly restricted the sweep of our felony-murder rule in Ortega, this Court in Campos
realized that the merger doctrine served only a limited function after Ortega. The Campos
Court explained that “the appropriate limitation imposed by the collateral-felony doctrine
[i.e., the merger doctrine] in New Mexico is simply that the predicate felony cannot be a
lesser included offense of second-degree murder.” 1996-NMSC-043, ¶ 19 (emphasis added).


                                             21
{70} To determine if a particular predicate felony is a lesser-included offense of second-
degree murder, we apply the strict-elements test. Id. ¶ 22. We did not select this test
arbitrarily; rather, we embraced the strict-elements test because we determined that it is a
reliable tool “for inferring whether the legislature intended to authorize separate application
of each criminal statute.” Id. ¶ 20 (internal quotation marks and citation omitted). In
addition, the strict-elements test is most sensible in the wake of Ortega because the felony-
murder doctrine applies only where the state can “prove the elements of second degree
murder as well as an independent felony.” State v. Varela, 1999-NMSC-045, ¶ 20, 128 N.M.
454, 993 P.2d 1280; see also State v. McGruder, 1997-NMSC-023, ¶ 16, 123 N.M. 302, 940
P.2d 150 (concluding that the strict-elements test is the appropriate analytical tool to
determine whether a particular felony may serve as a collateral felony), abrogated on other
grounds by State v. Chavez, 2009-NMSC-035, 146 N.M. 434, 211 P.3d 891. We have
expressly rejected invitations to utilize other means to discern legislative intent in this area.
Varela, 1999-NMSC-045, ¶ 19.

{71} Under the strict-elements test, an offense is “a lesser-included offense of another only
if the statutory elements of the lesser offense are a sub-set of the statutory elements of the
greater offense such that it would be impossible ever to commit the greater offense without
also committing the lesser offense.” Campos, 1996-NMSC-043, ¶ 20 (internal quotation
marks and citation omitted). A slightly clearer articulation of the strict-elements test appears
in Duffy, 1998-NMSC-014, ¶ 24. In Duffy, we explained that, 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 statutory elements of the greater offense such that it would be impossible
        ever to commit the greater offense without also committing the lesser
        offense.

Id. (internal quotation marks and citation omitted). When applying the strict-elements test,
we do not consider the facts of a particular case but look to the elements of the offense in the
abstract. Varela, 1999-NMSC-045, ¶ 17.

{72} The majority opinion complicates matters by stating that the collateral-felony rule
requires that the predicate felony be independent of the homicide and then by noting that this
Court has held that the predicate felony cannot be a lesser-included offense of second-degree
murder. Maj. Op. ¶ 14. This suggests that there is some analytical distinction between these
two propositions. But there is not. This Court has already made clear that a collateral felony
is just an offense that is not a lesser-included offense of second-degree murder. Campos,
1996-NMSC-043, ¶ 19.

{73} In Varela, we considered whether shooting at a dwelling in violation of Section 30-3-
8(A) is a collateral felony. 1999-NMSC-045, ¶¶ 15-21. We observed that “[t]he crime of
shooting at a dwelling requires willfully shooting at a dwelling, which is not an element of
second degree murder.” Id. ¶ 18. Accordingly, we concluded that “shooting at a dwelling

                                               22
is not a lesser included offense of second degree murder.” Id. This straight-forward analysis
applies with equal force to Section 30-3-8(B) and these principles have a clear and easy
application in this case.

{74} “Shooting at or from a motor vehicle consists of willfully discharging a firearm at
or from a motor vehicle with reckless disregard for the person of another.” Section
30-3-8(B). Just as shooting at a dwelling is not an element of second-degree murder, Varela,
1999-NMSC-045, ¶ 18, shooting at or from a motor vehicle is also not an element of second-
degree murder. See NMSA 1978, § 30-2-1(B). Accordingly, Section 30-3-8(B) is a
collateral felony and may serve as a predicate felony for felony murder. This conclusion is
supported by our collateral-felony case law. See Campos v. Bravo, 2007-NMSC-021, ¶ 15,
141 N.M. 801, 161 P.3d 846 (concluding that aggravated burglary is a collateral felony
because two elements of the offense—(1) the unauthorized entry of a structure, and (2) the
intent to commit a felony therein—are not elements of second-degree murder); Duffy,
1998-NMSC-014, ¶ 25 (concluding that robbery is a collateral felony because the elements
of the offense—theft of anything of value from the person of another by use or threatened
use of violence—are not elements of second-degree murder); Campos, 1996-NMSC-043,
¶ 25 (concluding that first-degree criminal sexual penetration is a collateral felony because
the elements of the offense—some form of penetration of the genital or anal openings of
another—are not elements of second-degree murder).

II.    THE MAJORITY OPINION DEPARTS FROM SETTLED LAW WITHOUT
       JUSTIFICATION AND ADOPTS AN UNWORKABLE STANDARD FOR
       OUR COLLATERAL-FELONY RULE

{75} The majority opinion abandons our previous approach to the collateral-felony rule
and states that “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.”
Maj. Op. ¶ 24. The majority opinion clarifies that “there must be a felonious purpose that
is independent from the purpose of endangering the physical health of the victim before the
dangerous felony can be used to elevate a second-degree murder to first-degree murder.”
Id. Upon what grounds does the majority opinion base this new development in our
collateral-felony jurisprudence? The majority opinion explains that “[f]or purposes of the
collateral-felony rule, legislative intent is better reflected in an assessment of felonious
purpose. When a crime’s objective is to injure or kill, the crime cannot be said to be
independent of a murder committed during the course of that crime.” Id. ¶ 19. But this is
entirely inconsistent with Campos where this Court determined that the strict elements test
most accurately reflects legislative intent for purposes of determining whether a felony is
collateral. Why the majority adopts this new formulation and abandons our existing
collateral-felony jurisprudence is unclear. No reason is expressly stated or readily
discernible. See Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 33, 125 N.M. 721, 965
P.2d 305 (stating that the principle of stare decisis does not require this Court to always
follow precedent nor preclude us from overruling precedent, but it does require that we

                                             23
provide justification when we depart from precedent).

{76} Whether or how the majority opinion’s new approach remains tethered to the
underlying purpose of the merger doctrine—to determine legislative intent and further that
intent—is also unclear. The majority opinion’s new formulation of our collateral-felony rule
utilizes terminology associated with and rooted in the independent felonious purpose test.
Under this test, courts focus on the defendant’s underlying purpose and hold that the
predicate felony and homicide merge unless the predicate felony was committed with an
independent felonious purpose from the killing. See Finkelstein, supra at 223; see also
People v. Burton, 491 P.2d 793, 801 (Cal. 1971) (“[T]here is a very significant difference
between deaths resulting from assaults with a deadly weapon, where the purpose of the
conduct was the very assault which resulted in death, and deaths resulting from conduct for
an independent felonious purpose, such as robbery or rape . . . .”), disapproved of on other
grounds by People v. Lessie, 223 P.3d 3 (2010). This Court expressly rejected the
independent felonious purpose test in Campos because the test was developed in
jurisdictions where accidental homicides can result in felony murder charges, and the test
necessarily permits such charges in its application. We thus deemed the test incompatible
with our unique approach to felony murder. Campos, 1996-NMSC-043, ¶¶ 15, 18 (rejecting
the independent felonious purpose test, and other related tests, because an accidental killing
cannot constitute second degree murder and, therefore, would not implicate New Mexico’s
unique felony murder statute). Even ignoring this fact, commentators have persuasively
shown that the independent felonious purpose test is analytically unsound. See Finkelstein,
supra at 224 (“The independent felonious purpose test is not even compelling as applied to
assault. A defendant who intends to harm his victim by beating him up very likely does not
have the purpose of inflicting sufficient harm on him to kill him. And if this is so, then how
can this test maintain that the felonious purpose in this case—which involves wounding—is
not independent of the homicide . . . .”).

{77} If the majority opinion’s intention is to rectify the confusion our collateral-felony rule
has generated, see Maj. Op. ¶¶ 1, 14, it is doubtful that the adoption of a body of law we
previously rejected as incompatible with our unique felony-murder jurisprudence is likely
to achieve this end. And if any doubt exists that the majority opinion’s new approach to the
collateral-felony rule is likely to cast our felony-murder jurisprudence into disarray, we need
look no further than our existing precedent to dispel that doubt.

{78} The majority opinion attempts to illustrate how its new approach to the collateral-
felony rule functions by examining several felony offenses we have previously determined
to be collateral. Maj. Op. ¶¶ 21-23. In Campos, this Court concluded that first-degree
criminal sexual penetration (CSP), NMSA 1978, § 30-9-11 (2009), is a collateral offense
and, thus, may serve as a predicate felony for felony murder. Campos, 1996-NMSC-043,
¶ 25. The majority opinion’s new approach leads to the conclusion that CSP is not collateral
and cannot serve as a predicate offense, despite the majority opinion’s assertion to the
contrary.


                                              24
{79} While the majority opinion claims that unauthorized carnal knowledge or the
imposition of sexual activity upon those who are not willing participants in sexual activity
are the purportedly independent felonious purposes of CSP, Maj. Op. ¶ 20, this analysis is
doubtful at best. To suggest that unauthorized carnal knowledge or the imposition of
unwanted sexual activity upon another is not somehow inextricably associated with an intent
to injure another does not withstand scrutiny. Such conduct is undoubtedly injurious and can
only be carried out with an intent to harm. The majority opinion perhaps recognizes this and
states that CSP is a collateral offense because it is possible to commit second-degree murder
without committing some form of CSP. Id. ¶ 21. But this is the traditional collateral-felony
analysis (i.e., the strict-elements test) which the majority opinion abandons. The majority
opinion’s new approach to our collateral-felony doctrine is unworkable and likely to only
further confuse this already difficult area of law.

III.   CONCLUSION

{80} A violation of Section 30-3-8(B) is a collateral felony and may serve as a predicate
felony for felony murder. The majority opinion avoids this conclusion by fundamentally
altering our collateral-felony jurisprudence. Confusion and uncertainty are the likely
outcomes of the majority’s opinion. As this dissent lacks the force of law, clarity in this area
of law must come from our Legislature. Enumerating the felonies that may serve as
predicate felonies for felony murder will clarify matters greatly.

{81}   For the forgoing reasons, I respectfully dissent.

                                               ____________________________________
                                               JUDITH K. NAKAMURA, Justice




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