dissenting.
I respectfully DISSENT. I would affirm the judgment and sentence.
The New Mexico Legislature has enacted a statute defining murder in the first degree in three ways: (1) as a “willful, deliberate, and premeditated killing”; (2) as a death caused “in the commission of an attempt to commit any felony”; and (3) as a death caused “by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.” NMSA 1978, § 30-2-1(A) (1994 Repl.Pamp.). This ease requires us to revisit the Legislature’s intent in classifying as first degree murder a death caused “by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.” § 30-2-l(A)(3). In previous opinions, this Court has characterized that particular form of murder as “first-degree depraved mind murder.” See, e.g., State v. Ibn Omar-Muhammad, 102 N.M. 274, 694 P.2d 922 (1985). We also have held that to prove depraved mind murder the State must show that the defendant had “subjective knowledge” that his act was greatly dangerous to the lives of others. Id. at 277, 694 P.2d at 925. In this opinion the majority holds that “[t]he required mens rea element of ‘subjective knowledge’ serves as proof that the defendant acted with a ‘depraved mind’ or ‘wicked or malignant heart’ and with utter disregard for human life.” Op. at 728, 931 P.2d at 73. Further, in this opinion the majority indicates that the State was required to prove that Brown “had the subjective or actual knowledge of the high degree of risk involved in his conduct.” Id. at 728, 931 P.2d at 73. Thus, in this case, the State was required to prove that Brown actually, or subjectively, knew, rather than only that he should have known, that his conduct was greatly dangerous to the lives of others. I believe that the evidence offered at trial was sufficient to support a jury determination that Brown had the necessary subjective, or actual, knowledge. I do not believe the majority disagrees.
However, in this opinion the majority also holds that “intoxication was relevant to determining the existence of the mens rea element of ‘subjective knowledge,’ and was therefore a valid consideration.” Id. at 728, 931 P.2d at 73. The majority reverses Brown’s conviction on the basis that the trial court erred in failing to instruct the jury on intoxication “with regard to the element of subjective knowledge required for a conviction for depraved mind murder." Id. at 728, 931 P.2d at 73. The majority concludes that “there was evidence that Brown was intoxicated, meaning that a ‘mental disturbance’ resulted from his drinking which in turn caused his inability to recall the murder.” Id. at 728-729, 931 P.2d at 73-74. I respectfully disagree with this conclusion. Because I am not persuaded that the evidence offered at trial was sufficient to support a jury determination that Brown, by reason of intoxication, did not have the subjective or actual knowledge required by the statute, I cannot say the trial court erred in failing to instruct the jury on intoxication.
Brown testified that he did not recall what happened because he had consumed an excessive amount of alcohol. The majority suggests this evidence is sufficient to support a jury determination that Brown lacked subjective or actual knowledge that his conduct was greatly dangerous. See generally State v. Privett, 104 N.M. 79, 80, 717 P.2d 55, 56 (1986) (holding intoxication to a degree that made specific intent impossible was a valid defense to a charge of willful, premeditated, first-degree murder). I respectfully disagree. Perhaps I do not understand what the majority means by subjective or actual knowledge. As I understand the phrase, the State introduced sufficient evidence to support the jury’s verdict, but Brown did not introduce sufficient evidence to support an instruction on the defense of intoxication. I conclude Brown did not introduce sufficient evidence to support the instruction because there was no evidence that he lacked the capacity to know his conduct was greatly dangerous and no evidence that he lacked any knowledge relevant to the question of whether his conduct was greatly dangerous.
Brown’s testimony might lead a jury to find that he fired unintentionally and thus that his culpability arose only from carrying a firearm while intoxicated. Nevertheless, evidence of his failure to recall the incident ought not to be sufficient to support an instruction that he lacked the requisite subjective or actual knowledge, if he fired intentionally. Brown fired a shotgun at close range to two people locked in an embrace on a bed, killing one of the two with a bullet to the back of the head. At least four people other than Brown occupied the room at the time of the shooting. If Brown acted intentionally, the jury was entitled to infer that he knew he created a high degree of risk to more than one person. That is, the jury was entitled to infer that if Brown fired at Oscar Zapata intentionally, he knew he was endangering Josephine Calanshe.
The question underlying Brown’s right to an instruction on intoxication would seem to be whether the evidence is sufficient to show that, if he fired intentionally, he could have done so without the actual knowledge that his act was greatly dangerous to others. I am not persuaded there is any evidence to that effect. Thus, I do not believe the record in this case contains enough evidence to show that Brown’s intoxication actually impaired his ability to know that his conduct was greatly dangerous to the lives of others. Cf. State v. Lovato, 110 N.M. 146, 798 P.2d 276 (Ct.App.) (upholding denial of instruction on intoxication in defense of aggravated battery charge, where no evidence of effect of intoxication at time of stabbing, and defendant had a clear recall of his actions at that time), cert. denied, 110 N.M. 72, 792 P.2d 49 (1990).
The opinion seems to require the instruction on intoxication whenever there is evidence of heavy drinking. Thus, the majority opinion may be understood to encompass a holding that to support a conviction for depraved mind murder the State must prove a mental state that is the equivalent of first-degree premeditated or willful killing and that any evidence of intoxication is sufficient to support the defense that a defendant lacked the required mental state. Perhaps the majority believes that no act committed by someone who is intoxicated can satisfy the Legislature’s intent in defining depraved mind murder. If the majority opinion does encompass such holdings, the opinion seems inconsistent with Privett.
I believe the opinion in fact goes too far in construing the statute that defines murder. The opinion suggests that the New Mexico Legislature has defined depraved mind murder as having a particular mental state. That suggestion does not find support in the text of the statute, which defines depraved mind murder as a death caused by an act that indicates a particular state of mind. I admit, as I must, that in construing the various forms of first degree murder and in evaluating the sufficiency of the evidence necessary to support different degrees of murder, we have produced a body of law that provides the thinnest of distinctions between depraved-mind murder and second-degree murder. Notwithstanding that reality, the facts of this case are not a proper vehicle to create a greater distinction or to eliminate the one we have created.
On these facts, I believe the dispositive jury question was whether Brown acted unintentionally or intentionally. If he acted unintentionally, he was guilty of involuntary manslaughter. If he acted intentionally, he was guilty of depraved-mind murder as our cases have developed the statutory definition provided by the Legislature for the crime it has classified as first degree murder under Section 30-2-l(A)(3). I think the evidence that Brown fired at close range, hitting Oscar Zapata in the back of the head, in a room occupied by several people, supports a finding of intentional conduct, and subjective or actual knowledge sufficient to support a conviction for depraved-mind murder, and that the evidence of intoxication is not sufficient to show impairment at that time. Cf. State v. Lovato. However, even if we thought Brown might not have seen the other two people in the room and known he was endangering them, I believe we could not say he was unaware of the person Oscar Zapata was embracing. I am willing to concede that a conviction of depraved mind murder might depend on a state of mind that intoxication would negate, but I am not persuaded that the evidence of depraved-mind murder in this case supports the defense.
In this case, I respectfully suggest the subjective or actual knowledge requirement seems to serve a limited function, the function of justifying the right to an instruction. That is, the existence of the requirement of subjective or actual knowledge seems to be enough in itself to require an instruction on the defense of intoxication. That result seems to me to require the State to prove an even more culpable mental state than is required for first-degree premeditated or willful killing. See Privett, 104 N.M. at 80, 717 P.2d at 56 (requiring evidence of impairment in establishing defense of lack of specific intent to willful, premeditated first-degree murder). I believe that result lacks any support in the text of the murder statute.
If intoxication is a defense to depraved-mind murder, I have difficulty understanding why it is not a defense to second-degree murder, at least on these facts. Yet in State v. Campos, 122 N.M. 148, 921 P.2d 1266 (1996), we very clearly said it was not. I believe it is possible that depraved-mind murder either requires a higher degree of recklessness than second-degree murder, in which case intoxication in theory should not be a defense if we follow Campos, or that it requires knowledge of a particular sort not required for second-degree murder, in which case intoxication might be a defense on specific facts. If the jury believed Brown’s testimony, however, I think it would have had to find that he lacked even the general criminal intent required for second-degree murder or voluntary manslaughter. See NMRA 1996, 14-141 (“A person acts intentionally when he purposely does an act which the law declares to be a crime.”) If we recognize the defense here, I think we have a difficult time reconciling not only Campos, but also explaining why intoxication is not a defense to voluntary manslaughter. See NMRA 1996, 14-220 (“For you to find the defendant guilty of voluntary manslaughter, the State must prove ... [t]he defendant knew that his acts created a strong probability of death or great bodily harm....”). Cf. NMRA 1996, 14-210 (“For you to find the defendant guilty of second-degree murder, the state must prove ... [t]he defendant knew that his acts created a strong probability of death or great bodily harm____”).
For all these reasons, I respectfully DISSENT. I would affirm the trial court’s judgment.
BACA, C.J., concurs.