Free Initial Consultation
First Degree Murder – Felony Murder
15 Nov 2016

First Degree Murder – Felony Murder

In New Mexico, “felony murder” is one of three different types of murder that can be charged as First Degree Murder under NM Stat § 30-2-1 (A) (2).  First Degree Murder, the most serious of all types of murder, is punishable in New Mexico by life in prison.

What Is Felony Murder?

Contrary to premeditated murder, which involves planning and intentional action to take the life of another, felony murders can be performed with no premeditation but an intent to kill or, according to State v. Ortega, 817 P.2d 1196 (N.M. 1991), 817 P.2d 1196 (N.M. 1991), “an act greatly dangerous to the lives of others or with knowledge that the act creates a strong probability of death or great bodily harm” that results in death.  Felony murder requires the death of a human being caused “in the commission of or attempt to commit any felony.”

“A Felony”

In New Mexico, there are five different levels of felony offenses, ranging from capitol felonies to non-capital felonies, which include four different levels of offenses, and multiple different levels of corresponding punishments, under NM Stat § 31-18-15.  More serious felonies carry more serious consequences.  Felony murder can be charged in conjunction with the commission of a first degree felony or a felony that is “inherently dangerous.”

“Felony Murder Three Ways”

Felony murder looks something like the following:

Scenario 1:

Imagine Jack and Jill decide to rob the liquor store.  Jack enters the liquor store with a loaded gun in his jacket pocket.  By agreement, Jill stays in the car.  The plan is that Jack will rob the liquor store, run out and Jill will have the car running and will drive away as fast as possible after Jack gets in the car.

Jack enters the liquor store and approaches the clerk, Bobby.  He pulls out his gun and points it at Bobby.  “Give me all the money in the till, as well as a carton of cigarettes or I’ll shoot you and take it myself!”  Bobby’s job is to operate the cash register, so he knows full well how to open it.  He does so, puts all the money from the cash register in the bag, and hands it to Jack.  He grabs a carton of cigarettes from behind the counter and gives that to Jack as well.  “Don’t call the police,” says Jack as he slowly walks backward towards the door with the gun still pointed at Bobby, Jack’s finger still on the trigger.

This is a second degree felony Robbery under NM Stat § 30-16-2, as Jack has committed a theft of something of value (the money and the cigarettes) and he took it from the “immediate control” of Bobby by threatening violence.  Because he used a gun, which is a deadly weapon, the seriousness of the robbery increases from a third degree felony to a second degree felony.

As Jack is almost to the door, he sees Bobby reaching for the phone.  “I’m calling the cops!” Bobby yells.  Jack points his gun and pulls the trigger, intending to kill him.  While typically an “intent to kill murder” without premeditation would be a second degree murder, because Jack does so in the commission of an inherently dangerous felony, Jack and Jill are likely to both be facing first degree felony murder charges.  Jack, because he intentionally caused a death in the commission of the felony robbery, and Jill because she is his accomplice.

Scenario 2:

Imagine instead, that Bobby does not reach for the phone.  He is remaining still and just watching Jack back out of the store.  Jack is making menacing sounds.  He announces, “I’m taking the safety off the gun!  Don’t move!  I’m putting my finger on the trigger.  Don’t move.  This gun has a touchy trigger.  It would take no effort to pull it.  I mean it!”  Bobby can see that Jack is doing exactly as he describes, and doesn’t move a muscle.  Suddenly, Jack’s elbow comes in contact with a stack of cases of beer.  This startles him and somehow, the gun goes off!  The bullet, of course, hits Bobby, and Bobby dies.

Jack races to the car and hops in.  Jill quickly takes off, just like they planned.  They make their escape.  Here, there is both a completed robbery and a felony murder.  Recall that Jack didn’t intend to kill the clerk.  He didn’t plan ahead to engage in conduct that would result in the death of another.  Instead, Jack is engaging in conduct that is “greatly dangerous to the lives of others.”  Additionally, he announced he knew the gun could go off with little effort, so he had “knowledge that the act creates a strong probability of death or great bodily harm.”  This is also felony murder.

Scenario 3a:

Imagine instead that Jack enters the liquor store and says to Bobby, “Give me all the money in the till, as well as a carton of cigarettes, or I’ll beat you until you are unconscious and I will take it myself.”  Bobby looks at Jack and notices Jack is 6 foot 4 inches and appears to be a body builder.  Bobby, at 5 foot 4 inches, decides Jack could easily beat him bloody and opens the cash register.  He hands a bag full of money to Jack, as well as the requested carton of cigarettes.  Jack slowly backs away, saying, “Don’t you call the cops.  I know who you are.  I can still come back here and beat you bloody.”

He leaves the liquor store, and scrambles into the car.  In this scenario, Jack has only committed a third degree felony robbery under NM Stat § 30-16-2, because while he still threatened violence, it did not involve the use of a “deadly weapon.”

Scenario 3b:

Now imagine that Jill is driving the getaway car.  As Jack is getting in the car, she notices that Bobby has come out of the store and is standing in front of the ice machine, with his cell phone in his hand.  Bobby is taking pictures of the car and the license plate.  Jill knows that Bobby will send these to the police, who will use them to identify her car.  Without thinking about it, she puts the car in reverse, slams her foot on the gas pedal, and deliberately drives her car into Bobby at a very high rate of speed, pinning him to the ice machine.  She pulls forward and Bobby collapses on the ground.  Jill backs her car over him a second time, and then scoops up Bobby’s cell phone and drives away as quickly as she can.

While we don’t know if Jill intended to kill Bobby, or just hurt him, her conduct was “greatly dangerous to the lives of others,” and slamming a car into someone, then running them over, has, at the very least a “strong probability” of “great bodily harm.”  If Bobby dies, Jack and Jill may still face felony murder charges.


The crime of felony murder can be complex since the prosecution must first prove that an underlying felony had been committed and then prove that during the commission or fleeing of the underlying crime, the defendant committed a murder.

There are several defenses that a felony murder defense attorney would argue.  Aside from mistaken identity, the felony murder defense attorney may argue that the underlying crime did not rise to the level of a felony or that the underlying felony either had not yet commenced or was already completed when the death occurred.  For example, Jack and Jill reached a point of safety with their bounty.  After storing their bounty, they decided to eat dinner.  As they drove to dinner, Jill accidentally ran over a man who suddenly ran in front of her car.  This would not be considered felony murder because the felonious robbery of Bobby’s store was already completed.


Keywords: felony murder defense attorney

Title: First Degree Murder – Felony Murder

Meta Description:  Felony murder is a complex first degree murder charge that requires a death to occur during the commission or fleeing of a felony crime.


  • I have been in the legal field for almost 41 years. I work with lawyers as a consultant all over the US. Ray Twohig is the best of the best. He is very thoughtful, thorough, careful, and... Twohig Law Firm Twohig Law Firm

    - Elliott Oppenheim, MD,JD,LLM Health Law READ MORE


Helping You Fight Theft Charges…

Theft of any type is a serious crime in New... ( read more )

How to Protect Yourself Against False Allegations…

Domestic violence is a real threat, and there's a reason... ( read more )