Haven’t kept up with all the facts in the case, but let’s be sure we’re discussing the appropriate standard here:
“In New Mexico, "the State must show at least criminal negligence to convict a criminal defendant of involuntary manslaughter."
Yarborough, 1996-NMSC-068, ¶ 20, 122 N.M. 596, 930 P.2d 131. Because involuntary manslaughter is an unintentional killing, we only attach felony liability where the actor has behaved with the requisite mens rea. Id. ¶¶ 19-20. This Court has made clear that the criminal negligence standard applies to all three categories of involuntary manslaughter.
State v. Salazar, 1997-NMSC-044, ¶ 54, 123 N.M. 778, 945 P.2d 996 ("nvoluntary manslaughter, whether premised upon a lawful or unlawful act, requires a showing of criminal negligence.").
Criminal negligence exists where the defendant "act with willful disregard of the rights or safety of others and in a manner which endanger any person or property." Henley, 2010-NMSC-039, ¶ 16, 148 *1014 N.M. 359, 237 P.3d 103 (internal quotation marks and citation omitted); UJI 14-133 NMRA. We also require that the defendant must possess subjective knowledge "of the danger or risk to others posed by his or her actions." Henley, 2010-NMSC-039, ¶ 17, 148 N.M. 359, 237 P.3d 103.
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The showing of criminal negligence required for an involuntary manslaughter jury instruction includes the concept of recklessness, in which a defendant "consciously disregards a substantial and unjustifiable risk" that harm will result from his conduct. Model Penal Code § 2.02(c) (Official Draft and Revised Comments 1962). The uniform jury instruction on criminal negligence incorporates this definition, defining criminal negligence as existing when a person "
act with willful disregard of the rights or safety of others and in a manner which endanger any person or property." UJI 14-133 NMRA. Likewise, the instruction on involuntary manslaughter states that the defendant "should have known of the danger involved by [his or her] actions." UJI 14-231 NMRA. To be convicted of involuntary *108 manslaughter, a defendant must have been aware of the risk caused by his or her conduct and continued to act.
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Our case law has long integrated the requirement of subjective knowledge into the showing of criminal negligence required by our involuntary manslaughter statute. See
State v. Harris, 41 N.M. 426, 428, 70 P.2d 757, 758 (1937) (defining criminal negligence required for involuntary manslaughter as "so reckless, wanton, and willful as to show an utter disregard for the safety of [others]"); see also
Yarborough, 1996-NMSC-068, ¶ 20, 122 N.M. 596, 930 P.2d 131 (noting, in a vehicular homicide case, that to find criminal negligence, "[the jury] must find that [the defendant] drove with willful disregard of the rights or safety of others and in a manner which endangered any person or property" (quoting NMRA 14-241 (1996)));
Romero,2005-NMCA-060, ¶ 17, 137 N.M. 456, 112 P.3d 1113 (finding that an involuntary manslaughter jury instruction should have been given where the defendant presented evidence that he was acting lawfully in self-defense but "without due caution or circumspection due to" the victim's medical condition, of which the defendant was aware); cf.
Lucero, 2010-NMSC-011, ¶ 14, 147 N.M. 747, 228 P.3d 1167 (stating that a jury instructed on involuntary manslaughter is not also instructed on accident, as accident requires proof of "usual and ordinary caution and without any unlawful intent," in contrast to the required showing of criminal negligence for an involuntary manslaughter instruction (internal quotation marks and citation omitted) (emphasis omitted)).
Criminal negligence in the context of involuntary manslaughter requires subjective knowledge by the defendant of the danger or risk to others posed by his or her actions. “
Federal courts have interpreted the term “without due cause and circumspection” to be the equivalent of “criminal negligence” where the negligence is “the conduct of the accused [was] such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life”
Was Baldwin aware (beyond a reasonable doubt) that the gun could be loaded but willfully disregarded that risk and decided to fire it anyway? This is a tough standard to prove, and absent evidence of Baldwin saying something like “I wonder if this is loaded/I hope it’s not loaded” I don’t see a jury convicting .
Would a reasonable actor with the knowledge and expertise of Baldwin have checked to see if the gun contained live ammunition or would they would simply take the props master’s word for it? I’m betting the overwhelming prevailing practice in the industry is the latter.
