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First Degree Murder – Depraved Mind
14 Oct 2016

First Degree Murder – Depraved Mind

New Mexico defines three different types of first degree murders in NM Stat § 30-2-1. These include premeditated murder, felony murder, and “depraved mind murder.” Depraved mind murder is defined in New Mexico as the death of a human being, caused “by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.” Id. Second degree murder in New Mexico punishes similar, but not identical conduct. This is defined where one causes a death by engaging in conduct that creates “a strong probability of death or great bodily harm” to the decedent.

What Is Depraved Mind Murder?

Basically, depraved heart murder involves defendant’s conduct that puts the lives of others in danger. It is not enough that someone has died, the conduct itself has to be determined to be “greatly dangerous.” For example, if someone intentionally drives a car at 70 miles an hour into a crowd of people watching a parade, it can be said that the act was “greatly dangerous” to the lives of others.

However, driving a car into a crowd at a high rate of speed is not the only critical fact. The most critical fact is whether that driver intentionally drove into a crowd. If so, the driver could be charged with depraved mind murder if someone dies. However, the driver would have a defense to depraved mind murder if he cautiously began to slow down when approaching the parade route, but then had a seizure causing his foot to hit the gas pedal and resulting in the death of another person. It likely would even be a reason not to charge depraved mind murder – because the conduct must indicate an indifference to human life – a depraved mind – and that the driver knew his conduct would greatly endanger the lives of others.

Likewise, a driver does not commit depraved mind murder if he drove the same car, at the same high rate of speed, through a field on his or her property and hit a homeless man napping in the grass if the driver had no reason to know a person would be napping in the grass. Thus, even though the example again includes driving a car at an excessive speed, this conduct would not rise to the level of depraved mind murder.

Punishment and Penalties

New Mexico is one of only a few states that charge depraved mind murder (also known in Common Law as “depraved heart murder”) as a first degree murder. First degree murder is punishable by life imprisonment, whereas second degree murder carries with it a sentence of 15 years of imprisonment. Involuntary manslaughter, which can involve conduct “without due caution and circumspection,” carries even less time in prison. The New Mexico Supreme Court is mindful that there are significant differences in the consequence for first and second degree murder, as well as involuntary manslaughter, and has underscored the importance of distinguishing between first degree depraved mind murder and second degree murder. See State v. Brown, 931 P.2d 69 (N.M. 1996).

The New Mexico Supreme Court’s Analysis

In general, when assessing whether a person has committed depraved mind murder, the Court has looked at the following:

  • The number of persons exposed to the risk;
  • Proof of “subjective knowledge” of the risk, as opposed to “mere negligence” or “recklessness;”
  • Evidence of “intensified malice” which constitutes “corrupt, perverted, or immoral state of mind constituting the highest grade of malice. . . in the commonly understood sense of ill will, hatred, spite, or evil intent.”

See State v. Reed, 120 P.3d 447 (N.M. 2005).

Put another way, deprived mind murder in New Mexico requires, “outrageously reckless conduct performed with a depraved kind of wantonness or total indifference for the value of human life.” Id. at 455. Thus, the depraved mind murder does not require an intent to kill, rather the intent to act without regard of the consequences. Id.

Examples of conduct that the New Mexico Supreme Court has found evidence of a depraved mind include acts of terrorism, drive by shootings, intentionally shooting at one person, but hitting and killing someone else, and planting a bomb at the airport – even if the person planting the bomb only intended to destroy property.

The New Mexico Supreme Court has reversed a conviction for depraved mind murder where the facts established the defendant engaged in conduct that was reckless, but did not rise to the level of a depraved mind. The Court cautioned that:

A proper understanding of depraved mind as used in our murder statute is that a “conscious endangering of human life springing from such total indifference is a more blameworthy choice than ‘mere recklessness alone which has had an incidental tragic result.’”

Reed, 120 P.3d at 459 (internal citations omitted).

Potential Defenses

If you were charged with first degree murder, a depraved mind murder defense attorney may argue several potential defenses, such as:

  • Mistaken Identity – one of the most common defenses is that there was a mistaken identity. Human memory is inherently flawed and over time, memory becomes blurred. Witnesses may mistaken you for the real perpetrator of similar stature, age, and physical attributes, such as gender, hair and eye color, and physique. Often, when arguing mistaken identity, you would have an alibi.
  • Self-Defense or Defense of Others – if you have a reason to fear for your safety or safety of another from bodily harm or death, then you may have a justifiable reason for the killing of the other person. However, your act or use of force must be reasonable and in proportional to the perceived threat. Additionally, the perceived threat must be one where a reasonable person would also fear death or bodily harm. Further, you cannot initiate the threatening situation.
  • Accident – an accident that occurs during lawful activities that result in death does not constitute murder, or first degree, depraved mind murder.


Keywords: depraved mind murder defense attorney

Title: First Degree Murder – Depraved Mind

Meta Description: A person who knowingly commits a dangerous act without regard to the lives of others and such act results in death, that person could be charged with first degree, depraved mind murder. This provides an explanation of depraved mind murder and possible defenses.


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