Case Information
*1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: June 28, 2019
NO. S-1-SC-34372
ROBERT FRY,
Petitioner-Appellant,
v.
JAMES LOPEZ, Warden,
PENITENTIARY OF NEW MEXICO,
Respondent-Appellee,
and
NO. S-1-SC-34386
TIMOTHY C. ALLEN,
Petitioner-Appellant,
v.
TIM LEMASTER, Warden,
Respondent-Appellee. INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY Karen L. Townsend, District Judge
Released for Publication September 17, 2019.
McGarry Law Office
Kathleen McGarry
Glorieta, NM
Jacquelyn Robins
Albuquerque, NM
for Appellant Robert Fry
Melissa Hill
Corrales, NM
Ray Twohig
Albuquerque, NM
for Appellant Timothy C. Allen
Hector H. Balderas, Attorney General
M. Victoria Wilson, Assistant Attorney General
Santa Fe, NM
for Appellees James Lopez and Tim LeMaster
UNM School of Law
George L. Bach, Jr.
Albuquerque, NM
for Amicus Curiae Professors at University of New Mexico School of Law The Law Office of Jamison Barkley, LLC
Jamison Barkley
Santa Fe, NM
The Law Office of John Day, LLC
John W. Day
Santa Fe, NM
UNM School of Law
Barbara E. Bergman
Albuquerque, NM
Jones, Snead, Wertheim & Clifford, P.A.
Jerry Todd Wertheim
Santa Fe, NM
for Amicus Curiae New Mexico Criminal Defense Lawyers Association
OPINION
VIGIL, Justice. INTRODUCTION
I. In this case we revisit our statutory responsibility to ensure that the death penalty is reserved for the most heinous crimes. Since 1979, the New Mexico Legislature has *3 directed this Court to ensure that “the death penalty shall not be imposed if . . . the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.” NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).
{2} In 2009, the Legislature abolished the death penalty as a sentencing option for murders committed after July 1, 2009. [1] Today, Petitioners Robert Fry and Timothy Allen, who committed their crimes before 2009, are the last inmates who remain on death row in New Mexico. Fry and Allen filed Petitions for Writs of Habeas Corpus seeking to dismiss their death sentences in light of the prospective-only application of the repeal.
{3} In this consolidated appeal of the district court’s denial of Petitioners’ motions to dismiss their death sentences, we hold that Petitioners’ death sentences are disproportionate and violate Section 31-20A-4(C)(4). Guided by our recognition that our Legislature intended for comparative proportionality review to protect against the arbitrary imposition of the death penalty, we conclude that there is no meaningful basis for distinguishing Fry and Allen from the many similar cases in which the death penalty was not imposed. Because Petitioners’ death sentences are statutorily disproportionate to the penalties imposed in similar cases, we remand each case to the district court to impose a sentence of life imprisonment. BACKGROUND AND PROCEDURAL HISTORY
II.
Prior to the 2009 statutory repeal of the death penalty, Petitioners Fry and Allen
were sentenced to death. Allen was convicted of first-degree murder for the 1994 killing
of a seventeen-year-old girl.
State v. Allen
,
murder was determined in a separate proceeding. ¶¶ 1, 15;
see
NMSA 1978, § 31-
20A-1(B) (1979, repealed 2009). At sentencing, Allen’s jury found the aggravating
circumstances of kidnapping and murder of a witness and unanimously voted to impose
the death penalty.
Allen
,
at a convenience store.
State v. Fry
,
{7}
On direct appeal to this Court, both Fry and Allen argued that their death
sentences were disproportionate to the penalties imposed in similar cases and therefore
violated Section 31-20A-4(C)(4).
Fry
,
Legislature repealed the death penalty effective July 1, 2009. Following the repeal, Fry and Allen filed motions to dismiss their death sentences, arguing that the repeal rendered their death sentences unconstitutional. Fry and Allen asserted that the prospective-only application of the repeal violated state and federal prohibitions against cruel and unusual punishment, state and federal guarantees of equal protection, and the prohibition of special laws in the New Mexico Constitution. The district court denied Petitioners’ motions and concluded that the death sentences were constitutional. However, it granted Petitioners’ requests for an interlocutory appeal and stayed their executions pending the outcome of the interlocutory appeal. We granted Petitioners’ applications for interlocutory appeal. Because “[w]e seek
to avoid an interpretation of a statute that would raise constitutional concerns,” this
Court asked for supplemental briefing on the statutory validity of Petitioners’ death
sentences.
See State v. Pangaea Cinema
,
III. JURISDICTION AND STANDARD OF REVIEW By statute and under Article VI, Section 2 of the New Mexico Constitution, this
Court has “exclusive jurisdiction over interlocutory appeals in criminal cases where a
defendant faces possible life imprisonment or execution.”
State v. Ameer
, 2018-NMSC-
030, ¶ 8, ___ P.3d ___;
see also
NMSA 1978, § 39-3-3(A)(3) (1972). In addition, we
have the exclusive statutory responsibility to ensure that a death sentence is not
*5
disproportionate to the penalty imposed in similar cases.
See
§ 31-20A-4(C)(4);
State v.
Wyrostek
,
{11}
Our role in reviewing a death sentence is not to question the wisdom of the
repeal nor to insert our own policy judgment in place of the Legislature’s. As Justice
Franchini wrote, “this Court is powerless”—despite practical or philosophical opposition
to the death penalty—“to change [public policy] unless the statutory law underlying the
policy is declared unconstitutional.”
State v. Clark
,
IV. DISCUSSION Because the purpose of comparative proportionality review is most clear from its
history, we begin with the origin of comparative proportionality review. In the 1970s, the
United States Supreme Court decided a series of landmark cases concerning the
constitutionality of capital punishment, which in turn impacted whether and how states
could impose the death penalty.
See generally Furman v. Georgia
,
Furman
,
cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders . . . , many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. at 309-10 (Stewart, J., concurring) (footnote omitted). In other words, the existing
capital sentencing schemes provided no assurance that the death penalty was being consistently imposed on the worst offenders. See id. at 293-95 (Brennan, J., concurring). In the aftermath of Furman , New Mexico took the path of many other states and
enacted a mandatory capital sentencing scheme, “apparently on the theory that if there
was no discretion, there was no problem.”
[2]
However, the Supreme Court declared
mandatory sentencing schemes to be unconstitutional in
Woodson v. North Carolina
,
scheme in
Gregg
,
substantially eliminate[] the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death. at 206. The Gregg Court held that these procedures together alleviated the concerns
expressed in
Furman
, enabling states to proceed with the death penalty provided they
adopted similar procedural protections.
Gregg
,
procedures modeled on the Georgia scheme, in 1979.
Compare
NMSA 1978, §§ 31-
20A-1 to -6 (1979),
with Gregg
,
A. The judgment of conviction and sentence of death shall be automatically reviewed by the supreme court of the state of New Mexico. B. In addition to the other matters on appeal, the supreme court shall rule on the validity of the death sentence.
C. The death penalty shall not be imposed if: (1) the evidence does not support the finding of a statutory aggravating circumstance;
(2) the evidence supports a finding that the mitigating circumstances outweigh the aggravating circumstances; (3) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; or (4) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant .
(Emphasis added.) Section 31-20A-4(C)(4) is the basis for the comparative proportionality requirement at issue in this appeal. New Mexico also narrowed the class of offenders eligible for the death penalty to
those guilty of first-degree murder where the sentencing jury unanimously finds one of
seven aggravating circumstances: murder for hire; murder of a witness; murder of a
police officer; murder in the commission of or attempt to commit a kidnapping, criminal
sexual contact of a minor, or criminal sexual penetration; murder in an attempt to
escape a penal institution; murder of an employee of the corrections department by an
inmate of the corrections department; and murder of a fellow inmate or person lawfully
on the premises of a penal institution. Section 31-20A-3;
see also
NMSA 1978, § 31-
20A-5(A)-(G) (1981). New Mexico’s revised capital sentencing scheme remained largely
unchanged from 1979 until the 2009 repeal and remains in force for murders committed
before 2009 pursuant to the Legislature’s savings clause. H.B. 285, 49th Leg., 1st
Sess., Section 6. Based on its similarities to the Georgia statute, we interpret our
scheme as incorporating the principles announced in
Furman
and
Gregg
.
See Garcia
,
proportionality review is not constitutionally required.
proportionality review, which is the “abstract evaluation of the appropriateness of a
sentence for a particular crime.”
proportionality review.
Garcia
,
We assume that the Legislature means that in similar cases, considering both the crime and defendant, a defendant convicted of first degree murder under a specific aggravated circumstance should not be put to death if another defendant or other defendants, convicted of murder under the same aggravated circumstance is given life imprisonment, unless there is some justification. Therefore, we adopt the following guidelines for review under this Section.
1. We will review this issue only when raised on appeal. 2. In our review, we will consider only New Mexico cases in which a defendant has been convicted of capital murder under the same aggravating circumstance(s) .
3. Only those New Mexico cases in which a defendant was convicted under the same aggravating circumstance(s) and then received either the death penalty or life imprisonment and whose conviction and sentence have been upheld previously by this Court[] will be considered appropriate for comparison.
4. We will review the record and compare the facts of the offense and all other evidence presented by way of aggravation or mitigation to determine whether the sentence is excessive or disproportionate.
Garcia
,
the issues that are now before this Court. Id. ¶¶ 43, 65 (Sosa, J., specially concurring). Among his concerns, Justice Sosa noted that the majority had not acknowledged the mandatory nature of comparative proportionality review. ¶¶ 59, 61. He further noted that the statute failed to specify the relevant universe of cases. ¶ 59. “What does similar mean?” he asked, and
[h]ow far back in New Mexico’s judicial history should comparisons be made? Should extrajudicial cases be brought into the analysis? Are cases which ended in plea bargains relevant? If a prosecutor exercises *10 discretion in the charging process and seeks an indictment without aggravating circumstances, is that case similar?
Id. In the view of Justice Sosa, these failures prevented this Court from conducting a meaningful review of whether a death sentence was arbitrary and rendered New Mexico’s capital sentencing scheme unconstitutional. Id. ¶¶ 63-65.
{24}
In this case, Fry and Allen argue that this Court should overrule
Garcia
and
expand the universe of cases used in determining whether a sentence is
disproportionate under Section 31-20A-4(C)(4). In the alternative, Fry and Allen argue
that this Court should find their sentences disproportionate under the
Garcia
approach
to comparative proportionality review. We address their arguments in accordance with
the Legislature’s mandate in Section 31-20A-4(C)(4) that we conduct a comparative
proportionality review in order to provide a “meaningful basis for distinguishing the few
cases in which [the death penalty] is imposed from the many cases in which it is not.”
Furman
,
A. The Legislature’s Repeal of the Death Penalty Is a Compelling Reason to
Revisit the Comparative Proportionality of Petitioners’ Death Sentences
The State argues that we should refrain from revisiting the comparative
proportionality of Petitioners’ death sentences because we determined that the death
sentences were not excessive or disproportionate in their direct appeals.
Fry
, 2006-
NMSC-001, ¶¶ 42-45;
Allen
,
issues that were wrongly decided on direct appeal, “courts rarely apply principles of
finality in habeas corpus proceedings with the same force as they do in ordinary
litigation.”
Clark v. Tansy
,
left the comparative proportionality requirement undisturbed for murders committed
before July 1, 2009.
[3]
¶ 14. We disagree. The repeal represents a profound change in
*11
the legislative attitude toward the death penalty and a shift in the standards of decency.
State v. Santiago
,
eminently relevant information that was not considered upon our initial review of
Petitioners’ death sentences. In determining the proper course of action, this Court is
not limited to considering the instant record but rather “may take judicial notice of
legislative facts by resorting to whatever materials it may have at its disposal
establishing or tending to establish those facts.”
Kerr v. Parsons
,
the 1979 capital sentencing scheme and, due to the repeal’s profound shift in fact and law, they are likely to be the last two inmates to ever face the death penalty under that statutory framework. The interests of justice require us to ensure that every person facing death under the 1979 capital sentencing scheme is afforded its full statutory protections. Under that capital sentencing scheme, we have an unqualified mandate to assure that a death sentence shall not be imposed if disproportionate to the penalty imposed in similar cases. Section 31-20A-4(B), (C)(4) (providing that “the supreme court shall rule on the validity of the death sentence” and that “[t]he death penalty shall not be imposed if . . . disproportionate to the penalty imposed in similar cases”); see NMSA 1978, § 12-2A-4(A) (1997) (“ ‘Shall’ . . . express[es] a duty, obligation, requirement or condition precedent.”). This is a heightened, additional, and continuing responsibility, and it is a mandatory and important component of New Mexico’s capital sentencing scheme. Until an execution is carried out, justice requires us to ensure that a death sentence is not disproportionate. Our reconsideration of the proportionality of Petitioners’ death sentences is
consistent with the highest level of scrutiny which death penalty cases demand.
Gregg
,
offenses involving a statutorily defined aggravating circumstance);
see also Pangaea Cinema
,
of the death penalty presents a profound change in the legal and factual framework surrounding Petitioners’ death sentences such that the interests of justice require that we ensure that those sentences are not disproportionate to the penalty imposed in similar cases. We therefore exercise our discretion to reconsider the comparative proportionality of Petitioners’ death sentences.
B. Our Prior Application of Garcia Did Not Substantially Eliminate the Risk of
an Arbitrary and Capricious Death Sentence Since it was decided over thirty years ago, Garcia has garnered criticism for failing to “answer the central question of proportionality as proposed by Justice White: whether there is a real difference between the many cases in which the death penalty is not imposed and the few cases in which it is.” [4] In 2004, the Final Report of the New Mexico State Bar Task Force on the Administration of the Death Penalty in New Mexico outlined numerous problems in the application of Garcia , summarized as follows:
(1) Section 31-20A-4(C)(4) mandates that this Court conduct a comparative proportionality review in every case, but “ Garcia says that review will be conducted only on request. [Section 31-20A-4(C)(4)] imposes responsibilities on the Supreme Court [while] imposes the responsibility on the defense to raise the issue and to supply comparison cases.” Final Report, 18;
*13 (2) Garcia “set[s] an overly restricted definition of the universe of cases” because “using the jury’s finding of an aggravating circumstance as the characteristic that defines what is a ‘similar’ case . . . [yields] only a handful of ‘similar’ cases to be considered.” Final Report, 18-19;
(3) While “th[is] Court has consistently rejected defense challenges to the Garcia standard, it has not applied the standard consistently over time.” Final Report, 19;
(4) “[This] Court has held sentences to be proportionate even when there are no other cases in which the defendant was sentenced to death,” indicating that “the Court is using a reasonableness approach or . . . has created an unspoken presumption that a death sentence is always proportionate.” Final Report, 19;
(5) “[M]any cases simply state a conclusion—that the death penalty is not excessive or disproportionate—without explaining the process that led the Court to its conclusion. This makes it difficult for lawyers or the public to understand the basis for the conclusion.” Final Report, 21;
(6) “[T]here are still unresolved issues about how the standard applies to particular cases,” including whether this Court will consider cases with the same aggravating circumstance or, in the absence of a similar case, “point[] to [factual] circumstances . . . [which] distinguish [the case under review] from the case in which a life sentence was imposed.” Final Report, 21. The problems identified in the Final Report were evident in Petitioners’ direct
appeals. In
Allen
,
4(C)(4) to conduct a comparative proportionality review of every death sentence,
contrary to
Garcia. See Garcia
,
statehood, the death penalty has been infrequently imposed. [7] Only one person has been executed since the enactment of the pre-repeal capital sentencing scheme in 1979. Wilson, supra , at 301. That person was Terry Clark, whose execution took place on November 6, 2001. Id. at 271. Before Clark, New Mexico had not executed anyone since David Cooper Nelson in 1960. Id. Only fifteen people, including Fry and Allen, have been sentenced to death since the enactment of the pre-repeal capital sentencing scheme in 1979. Id. at 266 & n.93. With the exception of Clark, none of these death sentences resulted in an execution. Under the pre-repeal capital sentencing scheme, an offender convicted of first-
degree murder could be subject to the death penalty only where the sentencing jury found one of seven aggravating circumstances. Section 31-20A-3; Section 31-20A-5(A)- (G). Most death-eligible cases did not reach the sentencing stage. Wilson, supra , at 271-72, 301. From July 1979 through December 2007, prosecutors sought the death penalty in only 211 cases. at 266-67. Nearly half of these cases were resolved through plea bargains that removed death as a possible sentence. at 268. The other half went to trial. See id. at 269. Thus, our limited universe of death penalty cases is in large part due to both plea bargaining and prosecutorial reluctance to seek the death penalty.
Fifty-two cases advanced to death penalty sentencing proceedings.
[8]
The others
ended in acquittal or conviction on lesser charges for which the death penalty was no
longer an available sentence. at 269. Of the fifty-two cases, the jury found at least
one aggravating factor and unanimously agreed on a death sentence just fifteen times.
[9]
Twelve of those fifteen death sentences were ultimately vacated: five reversed on direct
appeal,
[10]
two reversed in habeas proceedings,
[11]
and another five commuted by
Governor Toney Anaya in 1986.
[12]
Another was abated when the inmate died in
prison.
[13]
Clark was the only one of the fifteen to be executed, and that execution
proceeded only after Clark instructed counsel to abandon his appeals for postconviction
relief. at 271. Thus, even before the legislative repeal, capital punishment was a
relative nullity in New Mexico. This rarity demonstrates a reluctance to impose the death
penalty on the part of all three branches of government, which presents a significant
challenge to the administration of a meaningful comparative proportionality review.
Because relatively few death-eligible cases reach the death penalty sentencing
phase in New Mexico, use of the same aggravating circumstance as the sole criteria for
identifying similar cases has produced an impracticably small pool of comparison cases.
See
Final Report, 19-21. This is particularly true in
Fry
, which at the time of Fry’s direct
appeal was the only case involving kidnapping as the sole aggravator that was affirmed
on appeal.
See Fry
,
Additionally, there is no central repository of information regarding death penalty cases, making it difficult to obtain the details and records necessary to thoroughly conduct the comparative proportionality review. As Fry and Allen note, “[t]he [L]egislature obligated [this] Court to conduct a proportionality analysis, but failed to provide any mechanism to collect the cases that could be used in the analysis.” Unlike other states, New Mexico does not collect data to support comparative proportionality review. See, e.g. , Tenn. Sup. Ct. Rule 12 (1) (requiring the trial court to prepare a postconviction report for “all cases . . . in which the defendant is convicted of first- degree murder” with data to be used in the proportionality analysis). The underlying records in most death penalty cases in New Mexico are not electronically available, with the exception of those cases that were prosecuted shortly before the repeal. This invariably affected both the ability of defense counsel to bring meritorious challenges to the comparative proportionality of their clients’ death sentences and the depth of this Court’s review.
C. We Modify Our Application of Garcia in Order to Fulfill the Legislature’s
Intent in Adopting Section 31-20A-4(C)(4) Fry and Allen urge us to overrule Garcia , asserting that Garcia has deprived them of a meaningful comparative proportionality review and that the mechanism for conducting this review should be modified in various ways. We decline to overrule . However, we modify Garcia in order to better fulfill the purposes of Section 31- 20A-4(C)(4). We first recognize that the Washington Supreme Court, faced with similar
concerns regarding proportionality review, recently declared Washington’s death
penalty scheme unconstitutional as administered in
State v. Gregory
,
framework of their comparative proportionality reviews,
see Pulley
,
case.”
See
Final Report, 15. This produces a pool of cases to be used for comparison
purposes. Some states use the approach embraced in
Garcia
, under which the pool
is limited to cases involving the same aggravating circumstance as the death sentence
under review.
the pool of comparison cases in much the same way that a court typically reviews a
case.
Clark
,
death penalty was sought, the jury found at least one aggravating *19 circumstance, and which resulted in a sentence of death or life imprisonment that was affirmed on appeal {48} Fry and Allen urge this Court to expand the universe of cases from which similar cases have been drawn to include cases that could have been prosecuted as a death penalty case, regardless of whether the death penalty was actually pursued. Fry and Allen claim that death sentences are overrepresented under Garcia because the universe of cases excludes those in which the prosecutor did not seek the death penalty or offered a plea bargain in favor of life. Expanding the universe would enable us to examine the impact of prosecutorial discretion on the selection of which defendants were selected to receive the death penalty in New Mexico.
{49}
The State argues that properly limits the universe of cases to those in
which the prosecution sought and the jury had the option to impose a death sentence.
See Garcia
,
review under Section 31-20A-4(C)(4) to include reviewing the exercise of prosecutorial
discretion presents a question of statutory interpretation. “We begin by looking at the
language of the statute itself,” while recognizing that the plain language “must yield on
occasion to an intention otherwise discerned in terms of equity, legislative history, or
other sources.”
State v. Smith
,
less address whether we should limit our review to those cases in which the prosecutor
sought the death penalty. The Legislature did not provide specific guidance as to which
cases should be considered substantively or procedurally similar for purposes of
comparative proportionality review. However, the term “similar cases” appears within
the phrase “the penalty imposed in similar cases” in Section 31-20A-4(C)(4). Other
courts have construed identical language as communicating an intent for the court to
consider cases in which the prosecutor sought the death penalty and which progressed
to a death penalty sentencing hearing, whether it resulted in a sentence of death or life
imprisonment.
See, e.g.
,
Addison
,
Legislature adopted Section 31-20A-4(C)(4) in response to
Furman
and
Gregg
which, in
turn, provide insight into the appropriate parameters of the comparative proportionality
*20
review.
See Addison
,
disproportionate based on how rarely New Mexico prosecutors have pursued the death
penalty. Although the
Furman
Court did not discuss comparative proportionality review,
it observed that the rare imposition of the death penalty was not enough to prove that it
was being imposed arbitrarily.
Furman
,
discretion.
Gregg
,
{56}
By contrast, few states have opted to include in the comparative proportionality
review cases in which the prosecutor did not seek the death penalty.
See, e.g.
,
Papasavvas
,
also conclude that the New Mexico Legislature, by modeling its review on the comparative proportionality review endorsed in Gregg , did not intend for Section 31- 20A-4(C)(4) to serve as a check on the exercise of prosecutorial discretion. Under Gregg , prosecutors are free to exercise their discretion in favor of life. See 428 U.S. at 199. We decline to adopt a construction of Section 31-20A-4(C)(4) that would encourage prosecutors to seek the death penalty in order to maintain a robust universe of cases. We therefore reject Petitioners’ argument that we should expand the universe of cases to all cases in which the death penalty could have been pursued. We also consider whether the comparative proportionality review should be
modified to account for the exercise of executive clemency. This power was given to the
governor by the people. N.M. Const. art. V, § 6. Like prosecutorial discretion, the
governor’s power to commute sentences is “outside of the effective control of
legislatures” and an “inevitable component[] of any capital scheme.” Sherod Thaxton,
Disciplining Death: Assessing and Ameliorating Arbitrariness in Capital Charging
, 49
Ariz. St. L.J. 137, 195 (2017). Because comparative proportionality review was intended
to review “caprice in the decision to inflict the death penalty,” a governor’s isolated
decision to afford mercy does not render an otherwise valid death sentence
unconstitutional.
See Gregg
,
pre-repeal, 1979 capital sentencing scheme.
See
Exec. Orders Nos. 86-37, 86-38, 86-
*22
39, 86-40, 86-41 (Nov. 26, 1986). Under
Gregg
, this does not render Petitioners’ death
sentences disproportionate.
See
{60}
We also limit our review to cases prosecuted under the pre-repeal, 1979 capital
sentencing scheme. “To include cases decided before enactment of the present
[s]tatute would require consideration of cases decided under the various constitutionally
infirm statutes which predate the current one,”
Flamer
,
restriction: we consider only those cases which were affirmed on appeal. 1983-NMSC- 008, ¶ 34. This is a reasonable restriction because cases in which the defendant did not appeal cannot be considered a reliable indicator of facts warranting a given sentence. Moreover, because defendants facing either death or life imprisonment almost uniformly appealed, this restriction does not result in the exclusion of a great number of viable comparison cases. But see, e.g. , Adams , CR-86-0064 (10th Dist. Quay County Dec. 5, 1986) (waiving the right to directly appeal the judgment and sentence of death, anticipating commutation). In sum, we hold that the universe of cases is properly limited under to
those cases in which the prosecutor decided to seek the death penalty, which advanced
to a death penalty sentencing hearing in which the jury found at least one aggravating
circumstance, and which resulted in a sentence of death or life imprisonment which was
affirmed on appeal.
2. We expand the pool of cases to include both cases involving the same
aggravating circumstance and factually similar cases in which the jury had the option to impose the death penalty The second step of the comparative proportionality review requires us to identify
the particular characteristics to be used to identify a “ ‘similar case.’ ” Final Report, 15.
While we adhere to
Garcia’s
definition of the universe of cases, we reconsider the pool
of comparison cases and determine that the pool must be expanded from cases
involving first-degree murder convictions with the same aggravating circumstances to
include factually similar crimes in which the jury considered the death penalty. In
reaching this conclusion, we are guided by the
Gregg
Court’s understanding that “[
i
]
f a
time comes when juries generally do not impose the death sentence in a certain kind of
murder case
, the appellate review procedures assure that no defendant convicted under
such circumstances will suffer a sentence of death.”
Garcia Court’s definition of the pool of comparison cases has proven to be unworkable. Final Report, 19 (describing the approach as “logical” but noting that it yields “only a handful of ‘similar’ cases” for the comparative proportionality review). Only four cases have aggravating circumstances identical to Allen , [17] and the only case with aggravating circumstances identical to Fry is Fry’s own conviction for an unrelated murder. [18] Such a small pool of cases distorts our view of the application of the death penalty for similar crimes. We acknowledge, as Petitioners contend, that our comparative proportionality
review must be applied to “fully answer the central question of . . . whether there is a
real difference between the many cases in which the death penalty is not imposed and
the few cases in which it is.” Final Report, 18;
see Furman
,
substantially eliminate[] the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.
Other states include factually similar cases in the comparative proportionality
review.
See, e.g.
,
Addison
,
including “the manner of death (e.g., violent, torturous, etc.),” “the victim’s
circumstances including age [and] physical and mental conditions,” “the absence or
presence of provocation . . . [or] justification,” and “the injury to and effects on
nondecedent victims.”
Bland
,
observe that juries had the option to impose the death penalty in a number of cases with factual similarities to Fry and Allen but which did not result in the same aggravating circumstances. Specifically, regardless of the aggravating circumstances alleged, many cases involved the murder of youthful, typically female victims in the commission of a sexual assault. [19] These cases were excluded from consideration on direct appeal because, although Fry and Allen were both convicted of attempted criminal sexual penetration and therefore guilty of similar conduct, neither was charged with or found guilty of murder in the commission of a criminal sexual penetration as a statutory aggravating circumstance.
*25 {70} Additionally, we note that while New Mexico prosecutors maintained no written criteria for when to pursue the death penalty, they considered additional factors relevant in determining whether to seek the death penalty, including the age of the victim, whether the crime was ethnically motivated, opinions of the victim’s family, the number of victims, the suffering of the victim, the generally severe or aggravated nature of the crime, and the impact of the crime on the community. Final Report, 14-15. We consider these factors relevant when determining what makes a case factually similar.
{71}
In light of the limitations posed by the small universe of death penalty cases, we
see no principled reason to exclude factually similar cases in which the jury considered
the death penalty from the pool of comparison cases. These cases, like cases involving
the same aggravating circumstance, are substantively and procedurally similar to the
cases under review because the jury had the option to impose the death penalty based
on similar facts. Expanding our review to consider these cases may reveal a pattern
where no pattern was readily discernible among cases involving the same aggravating
circumstances. This will better serve the purposes of comparative proportionality review
by enabling us to determine whether Fry and Allen were sentenced to death by an
aberrant jury, in accordance with
Gregg
,
the jury considered the death penalty. We adhere to Garcia to the extent that the Garcia approach uses the same aggravating circumstance as the starting point for identifying the pool of comparison cases. However, we will also give meaningful consideration to factually similar crimes in which the jury considered the death penalty.
3. A death sentence is disproportionate if juries do not generally impose a
death sentence in similar cases and there is no justification for the death sentence to be imposed In the third step of our comparative proportionality review, we turn to the test to
be used to establish that a sentence is disproportionate. states that a death
sentence should not be affirmed when similar cases ended in life imprisonment, “unless
there is some justification.”
Petitioners’ death sentences should be affirmed when the majority of defendants
received life sentences for similarly shocking crimes. Instead, we concluded that certain
facts justified their death sentences without meaningfully considering factually similar
cases and whether juries generally imposed death sentences in those cases.
See, e.g.
,
*26
Fry
,
acknowledge and give meaningful consideration to similar cases that ended in a life
sentence.
State v. Timmendequas
,
sentence is an aberration and have instead conducted a traditional proportionality
review. In focusing primarily on facts that
could have
justified the imposition of the death
sentence without meaningfully considering other cases involving similar facts, we have
not answered the central question of whether the defendant’s death sentence is an
aberration from the norm.
See, e.g.
, ,
{78} Other courts have clarified that
the appellate task under [comparative] proportionality review was not to determine whether the capital case before it in some way was, on a scale of moral blameworthiness, roughly equivalent to all other capital cases and, absent such rough equivalence, to reverse the sentence. Nor was that review considered to require that the capital case before the court must affirmatively be shown, on such a scale, to have been quantitatively different from all other cases in which the death penalty was not imposed and, absent such an affirmative showing, to reverse the sentence. In the Supreme Court’s view, rather, the appellate inquiry under proportionality review was whether the death penalty imposed in a particular case was aberrational, within the particular jurisdiction involved, with respect to similar cases.
State v. Webb
,
that a death sentence is disproportionate if juries do not generally impose a death
sentence in similar cases and there is no real justification for the death sentence.
4.
Principles of stare decisis do not prevent us from modifying
Garcia
The State argues that stare decisis prevents us from overruling or modifying
Garcia
because the Legislature left
Garcia
undisturbed for nearly thirty years before the
repeal. Because we “take care to overrule established precedent only when the
circumstances require it,”
State v. Pieri
,
acquiescence to a well-settled interpretation of law.
See, e.g.
,
Patterson v. McLean
Credit Union
,
{82} The State’s argument would have greater force if we were overruling a functional approach to comparative proportionality review. Garcia proved to be unworkable in practice because it identified an overly restricted pool of cases. See Pieri , 2009-NMSC- 019, ¶ 21; see also Final Report, 19-21. Legislative acquiescence “falls far short of providing a basis to support a [statutory] construction . . . so clearly at odds with [the statute’s] plain meaning and legislative history.” Aaron v. Sec. and Exch. Comm’n , 446 U.S. 680, 694 n.11 (1980); William N. Eskridge, Jr., Interpreting Legislative Inaction , 87 Mich. L. Rev. 67, 76 (1988) (“[S]ubsequent legislative inactivity cannot ratify a clearly erroneous prior interpretation.”). For these reasons, we are unpersuaded by the State’s theory of legislative acquiescence.
D. Imposition of Death Sentences Against Fry and Allen Is Disproportionate to
the Penalties Imposed in Similar Cases 1. Cases involving the same aggravating circumstances as Fry and Allen did
not generally result in death sentences
To determine whether Petitioners’ death sentences are statutorily proportionate
to the penalty imposed in similar cases, we begin with the framework set forth in
Garcia
,
involving the same defendant, the same accomplice, and very similar conduct, but
which did not result in a death sentence. Similar cases involving two kidnapping
aggravators also resulted in life sentences. In
State v. Bedford
, S-1-SC-30664, dec. ¶ 1,
(June 23, 2010) (non-precedential) and
Ortega
,
were burned alive in the trunk of their car. Bedford , S-1-SC-30664, dec. ¶¶ 1-3. Bedford and the victims’ nephew entered the victims’ home. Bedford , S-1-SC-30664, dec. ¶ 2. There, Bedford attacked the victims, took their jewelry and credit cards, restrained them, forced the couple into the trunk of their car, drove them out of town, and beat the husband with a metal pipe. ¶¶ 2-3. Bedford and the victims’ nephew then filled gas cans and Bedford watched as the victims’ nephew poured the gas on the car and set it on fire with both victims most likely alive in the trunk. ¶¶ 2-3, 30. Bedford was convicted of two counts of first-degree murder, two counts of kidnapping, two counts of *30 tampering with evidence, one count of aggravated burglary, and one count of disposal of stolen property. Id. ¶ 1. The jury found two kidnapping aggravators but did not agree unanimously on the death penalty. Bedford , D-911-CR-2005-00046, court’s jury instructions (June 21, 2007) and special verdict (June 28, 2007). Similar to Bedford, the jury did not impose the death penalty on Richard Michael
Ortega for a brutal double murder.
Ortega
,
statutorily proportionate. Fry had one victim; Bedford and Ortega each had two. The jury in Fry found one aggravator; the juries in Bedford and Ortega each found two. Yet Fry received a death sentence and Bedford and Ortega did not. Considering Bedford , Ortega , and Fry’s later conviction, we conclude that the death penalty was not generally imposed in cases involving the same aggravating circumstances as Fry . Although the statutory proportionality requirement does not require perfect
symmetry in sentencing, it does require some justification for a disparity between the death sentence under review and the life sentences in similar cases. , 1983- NMSC-008, ¶ 34. The only distinction between Fry and the other cases is that Fry involved a conviction of attempted criminal sexual penetration. [22] To determine whether that distinction is sufficient justification for the sentencing disparity, we will consider the expanded pool of factually similar crimes in the next section.
*31 {91} Before we consider the expanded pool of factually similar cases, we turn to Allen, who was sentenced to death for murdering a seventeen-year-old girl. Allen , 2000- NMSC-002, ¶¶ 1-2. The victim lived with her mother and was last seen walking toward a convenience store about a mile from her home. Id. ¶ 2. The victim had gone into town to apply for a job and pay her mother’s water bill, and planned to return by evening. Id. She did not come home. Id. Six weeks later, her body was discovered in a remote area outside of town. Id. ¶ 3. The victim’s pants and underwear had been removed and her shirt pushed up over her bra. Id. ¶ 4. Investigators testified that the condition of her clothing was consistent with sexual assault and that the cause of her death was ligature strangulation. Id. ¶¶ 5-6. In addition, there was bruising on her legs. Id. ¶ 5. Allen was sentenced to death plus imprisonment for his noncapital convictions of kidnapping and attempted criminal sexual penetration. Id. ¶ 15. For Allen , the comparison cases are clearly identifiable under . The
aggravating circumstances were kidnapping and murder of a witness.
Allen
, 2000-
NMSC-002, ¶ 15. Four other cases involved identical aggravators:
Clark
,
Zinn
,
Hutchinson
, and
McGuire
. The death sentence was imposed in only one of these cases.
In more than a half century,
Clark
is the only case in which the State of New
Mexico carried out an execution. Wilson,
supra
, at 271. Terry Clark was sentenced to
death for kidnapping, raping, and murdering a nine-year-old girl.
Clark
, 1989-NMSC-
010, ¶¶ 1, 3. Clark abducted the child and took her to his brother’s ranch, where he
raped her and shot her in the head, killing her.
Id.
Her body was discovered unclothed in
a shallow grave.
Id.
¶¶ 3-4. Clark pleaded guilty to kidnapping and first-degree murder
in early December 1986 after learning that Governor Anaya intended to commute the
death sentences of all persons on death row later that month.
Id.
¶¶ 5, 7. However, the
trial court refused to hold the sentencing hearing before the end of Governor Anaya’s
term, and Clark’s case proceeded to a death penalty sentencing hearing where the jury
found the aggravating circumstances of kidnapping and murder of a witness.
Id.
¶¶ 5, 7,
54. Clark brought several appeals but ultimately instructed his attorneys to abandon his
appeals for relief. Wilson,
supra
, at 271. He was executed on November 6, 2001.
Id.
Clark was out on bond when he committed this murder, having previously been
convicted of raping a six-year-old girl.
Clark
,
then shot her in the head.
Zinn
,
{95}
Jerry Wayne Hutchinson abducted a woman from a rest stop before sexually
assaulting and killing her.
Hutchinson
,
{96}
Travis McGuire enlisted his stepbrother in the kidnapping, rape, and murder of an
Albuquerque woman.
McGuire
,
circumstances, we find no immediately discernible reason for Allen’s death sentence. In
three of the four cases the jury declined to impose the death sentence for crimes that
were very similar to and arguably more heinous than Allen’s. Only one of the
comparison cases resulted in a death sentence.
Clark
,
a child. To determine whether that factual similarity is sufficient justification for the sentencing disparity, we explore that similarity in further detail when we consider factually similar crimes in the next section of the opinion. In sum, neither the cases involving the same aggravating circumstances as Fry
nor the cases involving the same aggravating circumstances as Allen generally resulted in death sentences. But because Garcia limits the pool of cases for comparison, we turn to consider the expanded pool of comparison including cases factually similar to Fry and *33 Allen in which the jury had the option to impose death but which did not involve the same aggravating circumstances.
2. Cases involving facts similar to Fry and Allen did not generally result in
death sentences In order to ensure that we are conducting a thorough proportionality review, we now expand upon the Garcia approach to include factually similar cases in which the death penalty was an option. In the sentencing phases, the Allen jury found the aggravating circumstances of kidnapping and murder of a witness, the Fry jury found only the kidnapping aggravator, and both received the death sentence. Juries did not generally impose the death sentence for crimes with the same aggravating circumstances as either Fry or Allen , but juries had the option to impose the death penalty based on different aggravating circumstances in many cases involving facts similar to the facts in Fry and Allen . We therefore go beyond a strict application of Garcia to compare Petitioners’ death sentences to the sentences imposed in cases in which the victim was a child (as in Allen ) and in cases involving the attempt or commission of criminal sexual penetration (as in both Fry and Allen ). By examining these cases, we can see whether juries generally imposed the
death penalty in cases factually similar to Fry and Allen . We conclude from our examination that, although the death penalty was an option in many cases predicated on similar facts, the death sentence was rarely imposed. Our review of these cases does not reveal a justification for Petitioners’ death sentences and instead demonstrates that Fry and Allen were singled out for the death penalty.
a. The death penalty has not been generally imposed in cases involving a
youthful victim
{102}
We consider the age of the victim to be a salient fact in our comparative
proportionality review. New Mexico prosecutors considered the age of the victim in
determining whether to pursue the death penalty. Final Report, 14. The only execution
to be carried since the 1979 enactment of the capital sentences scheme was for the
murder of a nine-year-old girl. Wilson,
supra
, at 271;
see Clark
,
hearing,
Clark
,
Ortega
, and
Stills
,
[23]
Clark
is the only case in which a death sentence
*34
was ultimately imposed. As we have discussed, Ortega murdered two youthful victims—
one fourteen years old, and the other twenty-one—and the death penalty was not
imposed.
Ortega
,
although guilty of conduct resulting in the death of a child—they were not charged with a
death-eligible offense.
See, e.g.
,
State v. Jojola
,
reported that the age of the victim was important in deciding whether to pursue the
death penalty. Final Report, 14. Robert Henderson, Jr. beat, raped, and strangled an
eighty-nine-year-old woman.
Henderson
,
around her home and to have welcomed them into her home to feed them.
Henderson
,
was convicted of kidnapping, criminal sexual penetration, aggravated burglary, robbery,
tampering with evidence, and first-degree murder—where findings of the aggravating
circumstances of murder of a witness, murder in the commission of a kidnapping, and
murder in the commission of a criminal sexual penetration allowed the jury to consider
the death penalty.
[24]
Although a death sentence was imposed, it was commuted before
Adams had the chance to appeal. Wilson,
supra
, at 270 n.106;
see also Adams
, CR-86-
0064 (10th Dist. Quay County Dec. 5, 1986) (waiving the right to directly appeal the
judgment and sentence of death, anticipating commutation). Because Adams did not
appeal,
Adams
does not qualify for consideration under
Garcia
, and we do not consider
Adams
a reliable indicator of facts warranting the imposition of the death penalty.
,
b. The death penalty has not been generally imposed in cases involving
criminal sexual penetration
Because Fry and Allen were both convicted of attempted criminal sexual
penetration, cases with that aggravator serve as a useful point of comparison for
purposes of comparative proportionality review. New Mexico prosecutors also
considered the commission of a criminal sexual penetration to be a relevant factor in
deciding whether to seek the death penalty.
See
Wilson,
supra
, at 275 (stating that
kidnapping, murder of a witness, and criminal sexual penetration “were the most
commonly filed and continue to be the most common aggravators in penalty phase
cases”). Furthermore, cases involving a criminal sexual penetration were among the
most likely to proceed to a death penalty sentencing hearing. Many cases besides
Fry
and
Allen
involved the aggravating circumstance of criminal sexual penetration,
including
Clark
,
Gilbert
,
Guzman
,
Cheadle
,
Adams
,
Stills
,
McGuire
,
Henderson
,
Zinn
,
Hutchinson
,
Lovett
,
Harris
, and
Bryant
. We compare these cases to
Fry
and
Allen
.
The death penalty was imposed in five cases involving the aggravating
circumstance of criminal sexual penetration:
Clark
,
Gilbert
,
Guzman
,
Cheadle
, and
Adams
. Except for
Clark
, each of these death sentences was vacated or commuted.
Exec. Orders Nos. 86-37 (Gilbert), 86-39 (Guzman), 86-41 (Adams) (Nov. 26, 1986);
Cheadle
,
Governor Anaya also commuted the death sentence of Michael Anthony
Guzman. Exec. Order No. 86-39 (Nov. 26, 1986). Guzman was sentenced to death for
an attempted double murder where one victim died and one victim was injured but
survived.
Guzman
,
gunpoint, attempting to rape the woman, and murdering the man.
Cheadle
, 1983-
NMSC-093, ¶¶ 1, 3. Cheadle ordered the two to disrobe and shot the man.
Id.
¶ 3.
Cheadle tried to rape the woman, but was unable to become aroused.
Id.
He shot the
man again and then attempted to force the woman into a car, but she ran and got away.
Id.
Cheadle was convicted of first-degree murder, kidnapping, and criminal sexual
penetration and was sentenced to death based on the aggravating circumstances of
murder of a witness and murder in the commission of a kidnapping or criminal sexual
penetration. ¶¶ 1, 31. This Court affirmed the death sentence on direct appeal,
id.
¶
46, but later affirmed the life sentence imposed when the district court vacated the
death sentence due to ineffective assistance of counsel.
Cheadle
,
penetration the defendants were sentenced to life in prison, despite facing the possibility
of death.
See, e.g.
,
Stills
,
Lovett did not receive the death sentence for the sexual assault and murder of a young
woman.
Lovett
,
to strangle her to death. Harris , S-1-SC-23306, dec. ¶¶ 1, 3. She was found dead in her apartment, in a complex where Harris had worked as a painter. Id. ¶ 3. Harris’s DNA and sperm were discovered on the victim, and he had a scratch consistent with fingernail marks. Id. ¶¶ 3, 5. Harris was convicted of first-degree willful and deliberate murder, felony murder, criminal sexual penetration, aggravated burglary, larceny, and two counts of child abuse. ¶ 1. Harris had also stolen the victim’s car and traded it for cocaine. Id. ¶ 4. The jury found the aggravating circumstance of criminal sexual penetration, but did not unanimously agree on the death penalty. See State v. Harris , D- 202-CR-1992-01433, verdict guilty and verdict not guilty (Sept. 21, 1995). Robert Bryant was sentenced to life imprisonment for strangling a woman as he
raped her. Bryant , S-1-SC-26112, dec. ¶¶ 1, 22, 27. The victim’s body was discovered padlocked inside of Bryant’s camper shell. Id. ¶¶ 3, 19. She was wrapped in blankets and unclothed from the waist down, with the exception of her socks and tennis shoes. Id. ¶ 27. A pendant had been pressed deeply into the victim’s neck, which was heavily *39 bruised, and her bra was sliced and pushed out of place. Id. ¶¶ 22, 27. Bryant’s pubic hair was discovered on the victim and his sperm was still inside of her and intact, suggesting that she had been killed in intercourse and had not moved since then. Id. ¶ 27. Bryant “was convicted of first-degree murder, kidnapping, criminal sexual penetration, and tampering with evidence.” Id. ¶ 1. The jury found the aggravators of kidnapping and criminal sexual penetration, but did not unanimously agree on the death penalty. See State v. Bryant , D-101-CR-1998-00588, miscellaneous entries (Oct. 6, 1999). While criminal sexual penetration was a commonly alleged aggravating
circumstance, see Wilson, supra , at 274, the death penalty was imposed in very few of these cases. Our comparison of these cases has revealed that the death penalty was far from generally imposed in cases involving similarly disturbing incidents of criminal sexual penetration and that these cases provide no rational justification for Petitioners’ death sentences. Taken together, the cases suggest that Fry and Allen were singled out for the death penalty and that Petitioners’ death sentences are disproportionate. c. Petitioners’ death sentences are disproportionate Considering cases involving the same aggravating circumstances as well as
other factually similar cases, we conclude that Petitioners’ death sentences are statutorily disproportionate. As we have discussed, death sentences were not generally imposed in cases involving the same aggravating circumstances as either Fry or Allen . Neither the age of Allen’s victim nor Fry’s and Allen’s attempted criminal sexual penetration provide justification for this sentencing disparity, as death sentences were not generally imposed by juries in cases involving similar facts. Out of the entire pool of reliable comparison cases for either Fry or Allen , death
sentences were imposed in only three cases,
Clark
,
Gilbert
, and
Guzman
.
[27]
Each of
these three cases involved more aggravating circumstances than
Fry
and two involved
more aggravating circumstances than
Allen
. Juries found three aggravating
circumstances for Gilbert and Guzman, two aggravating circumstances for Clark and
Allen, and a single aggravating circumstance for Fry.
Fry
,
{119}
Although Section 31-20A-4(C)(4) does not require perfectly symmetrical
sentencing, it does require us “to identify and invalidate the aberrant death sentence.”
Clark
,
V. CONCLUSION Ten years ago, the people of New Mexico, through their duly elected
representatives in the Legislature, repealed the death penalty on a prospective basis.
This historic shift in public and legislative response to the greatest punishment for the
most heinous crimes compelled Petitioners to ask this Court to declare their death
sentences unconstitutional. Consistent with our longstanding prudential obligation to
“avoid deciding constitutional questions unless required to do so,”
Allen v. LeMaster
,
post-verdict comparative proportionality review of Fry’s and Allen’s death sentences by comparing their death sentences to the sentences imposed in similar cases. Our previous examination of Fry’s and Allen’s death sentences under the approach to comparative proportionality review adopted in Garcia consisted more of a traditional proportionality review and did not satisfy the requirement of Section 31-20A-4(C)(4). This prior approach under Garcia has been a subject of criticism, both by a dissenting member of the enacting Court and in a comprehensive study on the issue. Given the historic repeal of the death penalty, we cannot ignore this criticism and therefore strengthen our approach under Garcia to ensure that each death sentence is thoroughly compared with similar cases in which the jury had the option to impose the death penalty. In this opinion we apply that modified approach—one which better fulfills
our obligation to conduct a comparative proportionality analysis of Petitioners’ death sentences. Doing so, we conclude that Petitioners’ death sentences do not satisfy the comparative proportionality requirement under Section 31-20A-4(C)(4). In comparing Petitioners’ cases to other equally horrendous cases in which defendants were not *41 sentenced to death, we find no meaningful distinction which justifies imposing the death sentence upon Fry and Allen. The absence of such a distinction renders the ultimate penalty of death contrary to the people’s mandate that the sentence be proportionate to the penalties imposed in similar cases. We therefore hold the imposition of the death sentence upon Fry and Allen to be disproportionate under Section 31-20A-4(C)(4), hereby vacate their death sentences, and remand for sentences of life imprisonment. {123} IT IS SO ORDERED.
BARBARA J. VIGIL, Justice
WE CONCUR: EDWARD L. CHÁVEZ, Justice, Retired, Specially Concurring Sitting by designation
CHARLES W. DANIELS, Justice, Retired, Specially Concurring Sitting by designation
JUDITH K. NAKAMURA, Chief Justice, Dissenting
PETRA JIMENEZ MAES, Justice, Retired, Concurring in Dissent Sitting by designation
CHÁVEZ, Justice (specially concurring). The death penalty is the government’s authority to plan and carry out the killing
of a human being who is found guilty of committing a specified crime or crimes. The plan begins with legislation identifying which crimes warrant the death penalty, the procedure for finding the person guilty, the procedure for deciding whether the person should be sentenced to death, and, if sentenced to death, the method by which the person will be killed. There are limits on the government’s authority. The government must plan and carry out the killing consistent with both the
United States and New Mexico Constitutions. The United States Constitution dictates the minimum constitutional protections available to the person the government is planning to kill. The New Mexico Constitution can require greater protection for that person, but cannot require less protection. Legislation may also require greater protections for the person subject to the death penalty beyond what is required by either constitution. This case is not about constitutional protections. This case is about an additional
protection required by the New Mexico Legislature. The protection is the requirement that the New Mexico Supreme Court automatically review a death sentence for, among other things, whether “the sentence of death is excessive or disproportionate to the *42 penalty imposed in similar cases , considering both the crime and the defendant .” [28] The Legislature did not define what it meant by “similar cases” or detail how it intended this Court to fulfill its responsibilities. To determine whether the sentence of death is excessive or disproportionate to the penalty imposed in “similar cases” we must consider the jury verdict in the cases we are comparing. Our review of the jury verdicts is not for the purpose of questioning the integrity of the jury or whether they were serious about their responsibilities. I am confident the juries in each of the cases we must review and compare took their responsibilities with the gravity and seriousness the task required, even though some juries voted to sentence the defendant to death and other juries did not impose the death penalty. The Legislature insisted that this Court consider the penalty imposed by multiple juries because it expected the Court to reverse a death penalty if the Court’s review reveals that multiple juries in similar cases did not impose the death penalty and there is no justification for the disparity. Similarly, if the Court’s review revealed that the death penalty has been imposed in similar cases, the Legislature would expect this Court to affirm the death penalty. By necessity we must look at the facts in the case we are reviewing and in the
case or cases we are comparing. Otherwise, we would not be able to determine whether the comparison cases are “similar cases,” nor would we be able to compare the defendant and the crime in the comparison cases to the defendant and the crime in the case under review. It seems obvious that a “similar case” would include cases where the victim was
murdered. However, a death sentence can only be imposed if the judge or jury finds that the defendant murdered the victim under at least one of the following aggravating circumstances: 1) the victim was a peace officer acting in the lawful discharge of an official duty when murdered; 2) the murder was committed with the intent to kill in the commission or attempt to commit a) kidnapping, b) criminal sexual contact of a minor, or c) criminal sexual penetration; 3) the murder was committed by a defendant attempting to escape a penal institution; 4) the defendant, while incarcerated, murdered a person who was incarcerated or who was lawfully on the premises of the penal institution; 5) the defendant, while incarcerated, murdered an employee of the penal institution; 6) the defendant was hired to murder the victim; or 7) the defendant murdered a witness to prevent the witness from testifying or in retaliation for that testimony. [29] Murders occur under circumstances that would not fit within any of these seven categories. It would not be appropriate for us to consider all murder cases in our comparisons because the defendants in those cases, for policy reasons, did not risk a death sentence. Logically, we could consider other cases where the facts indicate that the defendant committed a murder that could fit within any of these seven categories but the prosecutor chose not to pursue the death penalty. Justice Vigil rejects such a broad review. Instead Justice Vigil narrows the focus by limiting our review to cases in which
the jury had to decide whether to impose a death sentence in a case involving the same aggravating circumstance and in which the facts are similar to the case we are *43 reviewing. This review eliminates the countless cases with similar facts where the prosecutor could have asked a jury to consider the death penalty under the same aggravating circumstance, but instead chose to pursue life in prison as the maximum sentence. For example, when a defendant is alleged to have killed a person during the course of attempting to or actually kidnapping or raping the victim, the prosecutor could choose to prosecute the defendant for first-degree murder but not seek the death penalty, in which case the maximum possible sentence for the murder would be life in prison. Excluding these cases from our review of “the penalty imposed in similar cases , considering both the crime and the defendant ” [30] could be criticized because excluding these cases arguably skews the analysis in favor of the death penalty. I agree with Justice Vigil’s approach because it is tailored to consider the specific aggravating circumstance at issue in the cases yet permits this Court to look at the totality of the circumstances in the cases to determine whether there is a justification for the death penalty in one case and not another. If in the future the Legislature reimposes the death penalty it may broaden the scope of our comparative proportionality review or eliminate the requirement of a comparative review altogether. A traditional proportionality review required by the United States Constitution, which is very different from the proportionality review required by the Legislature, will still be required. I also understand that the review we undertake expands, although slightly, the analysis previously employed by this Court when performing a comparative proportionality review. I agree with the need to expand the review, particularly because Governor Richardson, when signing the repeal of the death penalty, squarely called into question whether the criminal justice system in New Mexico can be trusted to properly carry out the death penalty. Governor Richardson stated he signed the legislation because he lacked “confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime.” See Press Release, Governor Bill Richardson Signs Repeal of the Death Penalty (Mar. 18, 2009), available at http://www.deathpenaltyinfo.org/documents/richardsonstatement.pdf. Governor Richardson also noted that in New Mexico four individuals who were sentenced to death later had the charges against them dismissed. Id . The criminal justice system includes law enforcement, prosecutors, public and
private defenders of an accused, penal institutions, trial courts, and appellate courts. This Court has the responsibility to assure that criminal justice stakeholders adhere strictly to 1) the United States and New Mexico Constitutions; 2) obligations imposed on the system by the Legislature; and 3) procedures required by this Court under its power of superintending control. As it specifically relates to the death penalty, this Court is the only court that has the authority and responsibility to determine whether the sentence of death is “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” Section 31-20A-4(C)(4). I am persuaded that our prior approach has been too narrow and, therefore, agree with the detailed approach taken by Justice Vigil and the result she reaches.
*44 {132} The result in this case means that both Allen and Fry will have their death sentences reduced to life in prison. Under the law, they will be entitled to a parole hearing after thirty years. [31] Being entitled to a parole hearing does not mean that they will be released from prison. The parole board must consider the circumstances of the crime, mitigating and aggravating circumstances, and other information when deciding whether parole is in the best interests of society, Fry, and Allen, and whether they are able and willing to be law-abiding citizens. If the parole board rejects parole, Fry and Allen are only entitled to another parole hearing every two years until they are paroled. NMSA 1978, § 31-21-10(A) (1994); NMSA 1978, § 31-21-10(A) (1997). Once paroled from their life-in-prison sentences, Allen and Fry will immediately begin serving additional prison sentences that were ordered to run consecutive to their death sentences. NMSA 1978, § 31-21-11 (1982). Allen was thirty-four years old at the time of his trial in 1995. Allen , 2000-NMSC-
002, ¶ 81. He was sentenced to death for the one murder. If Allen’s only sentence was the death sentence—now life in prison—he would be entitled to a parole hearing after thirty years. However, the judge imposed a twenty-five-year sentence on Allen for other crimes he committed at the time of the murder and required the twenty-five year sentence to be served in addition to the sentence for the murder. [32] Allen will have to begin serving the twenty-five year sentence if and when the parole board paroles him from his life sentence. Fry, who was born August 18, 1973, faces a minimum sentence of one-hundred-
twenty years just for his life sentences, which run consecutively to the first sentence imposed on Fry. [33] Fry will never be eligible for release from prison. For all of the foregoing reasons, I concur with the analysis and result reached by
Justice Vigil.
EDWARD L. CHÁVEZ, Justice, Retired
Sitting by designation
DANIELS, Justice (specially concurring).
*45
{136}
The opinion of the Court undertakes a cautious exercise of our exclusive
statutory responsibility under the Capital Felony Sentencing Act to ensure that a
defendant is not put to death if that sanction “is . . . disproportionate to the penalty
imposed in similar cases,” Section 31-20A-4(C)(4) (1979, repealed 2009). In doing so, it
avoids at least some of the clear inequities that resulted from the narrow strictures of
the majority opinion in
Garcia
,
reach further and decide in a precedential opinion whether the inconsistent
administration of our death sentence statutes also violates state constitutional
guarantees, as the Connecticut and Washington Supreme Courts recently have ruled.
State v. Santiago
,
philosophical, or moral views about the death penalty for lawful statutory or constitutional mandates. Members of our society and polity have expressed a number of sharply differing views on the death penalty, ranging from a view that evolving standards of civilization and decency have rejected killing at the hands of the state to a view that exacting an eye for an eye and a tooth for a tooth is an appropriate justification for the state’s extermination of murderers. As judges we should not presume to make those choices—either way—for the citizens of our self-governing democracy. Our focused responsibility is to make sure the law is applied according to statutory and constitutional requirements, including those that incorporate the ultimate precept of equal justice summarized in the inscription behind our bench, “Dedicated to the Administration of Equal Justice Under Law,” and the similar expression, “Equal Justice Under Law,” that is chiseled into the marble above the doors of the United States Supreme Court. We are also bound by the specific statutory task the New Mexico Legislature has assigned to us with regard to the imposition of the death penalty in this state, to ensure that our justice system does not arbitrarily put to death a few defendants and not the majority of equally eligible others, under either a statutory or constitutional analysis. Theory often fails to foresee reality. Any expectations of a fairly administered
death penalty scheme the drafters of the Act may have entertained forty years ago proved in practice to be wrong. And whatever future the majority may have anticipated in creating a method for trying to comply with our then-new proportionality *46 oversight responsibility, decades of real-life experience have now demonstrated that its technical limitations focused so narrowly on individual categorical exclusions from the proportionality analysis that it failed to anticipate the complete picture of the inconsistent administration of the death penalty that emerged so clearly over the subsequent years for defendants who committed their crimes between 1979 and 2009, when the Act was in effect. Our justice system, our citizens, and our public officials in all three branches of
New Mexico government for decades often talked the talk of having an equitable and constitutional capital punishment policy but collectively never found themselves willing to walk the walk. Despite the commission of hundreds of brutal, cold-blooded, and deliberate first-degree murders of adult and child victims, our state has executed a total of one of those murderers over the course of decades, a unique defendant who waived both his trial and then his habeas corpus review before this Court, submitting voluntarily to becoming the only person executed by the New Mexico justice system in well over half a century. See Jolene Gutierrez Krueger, Recalling the Last Execution in New Mexico , Albuquerque Journal, August 24, 2016, available at
https://www.abqjournal.com/832100/remembering-the-last-killer-put-to-death-in-new- mexico.html (last visited December 20, 2018). Other than the uniquely anomalous case of Mr. Clark, even those very few
defendants whose cases were deemed on direct appeal to be theoretically appropriate
under the narrow limitations to be used as comparisons for proportionality,
including Mr. Garcia himself, were all ultimately spared by our state from execution of
the death penalty. And despite the “grandfather” clause in the death penalty repeal
retaining, at least on paper, the 1979 provisions for execution of murderers who
committed their crimes before the 2009 repeal, the reality is that in almost a decade
since the repeal the number of first-degree murderers who have been either sentenced
to death or executed has been exactly zero, including the defendant for whom the
grandfather clause was primarily created.
See
Dave Maass,
Lethal Invective: Accused
Cop Killer Michael Astorga Talks Death Penalty Politics
, Santa Fe Reporter, March 17,
2009, available at https://www.sfreporter.com/news/2009/03/17/lethal-invective/ (last
visited December 20, 2018). Despite having been convicted of the cold-blooded and
deliberate execution of a young officer making a routine traffic stop and despite being
eligible for the death penalty under the 2009 prospective repeal of the 1979 Act, Michael
Astorga was sentenced to life in prison because the sentencing jury did not impose the
death penalty.
Astorga
,
be explained in part, but not excused, by the fact that various actors exercising authority of our entire state justice system, and not just individual jurors, have participated in creating the inconsistent application of the death penalty. There are sound policy reasons why each of those actors should have nonreversible discretion to extend mercy, whether in jury verdicts that spare a defendant from either a conviction or death sentence, or decisions of prosecutors to bargain death off the table or not to seek it at all, or the historic and constitutional authority of governors to commute death sentences *47 that have been returned by juries and upheld by courts on appeal. But when the collective result of all the actions taken under authority of our state justice system is that one or even three cold-blooded murderers out of hundreds are executed by the state while the equally culpable majority are spared, our state cannot honestly claim it has imposed the death penalty in a proportionate manner. A killer’s crimes reflect who he is. What we do to the killer reflects who we are.
Can we really look anyone in the eye and say that executing these two defendants would be proportionate when compared to non-deadly punishment our state has overwhelmingly meted out in virtually all equally serious first-degree murder cases, and specifically in similar cases, since enactment of the Capital Felony Sentencing Act in 1979? I, for one, cannot honestly do so. I CONCUR in the judgment of the Court. CHARLES W. DANIELS, Justice, Retired
Sitting by designation
NAKAMURA, Chief Justice (dissenting).
{144} The Majority’s position—executing Fry and Allen would be immoral, unethical, and unjust given the rarity with which murderers in New Mexico are put to death—has appeal at some very basic level. But I must respectfully dissent. I do not know if executing Fry and Allen would be immoral, unethical, or unjust. I know only that a jury comprised of women and men from our state concluded that Fry and Allen forfeited their right to continue living among us for brutally killing innocent and by all accounts gentle and caring women. I am certain also that the jurors assembled to sentence Fry and Allen took their responsibilities to decide Fry’s and Allen’s fate with the gravity and seriousness the task required.
{145} The legislative command that this Court assure that Fry’s and Allen’s death sentences are not “disproportionate to the penalty imposed in similar cases” should not be construed in the way embraced by the Majority. Section 31-20A-4(C)(4) (1979, repealed 2009). They perceive in that language authority to conclude that, because so few offenders in New Mexico have ever been sentenced to die, no offenders shall ever again be sentenced to die in New Mexico. I respectfully contend that the Majority’s judgment is error.
{146}
Our Legislature created a refined category of death-eligible crimes and gave to
capital-sentencing juries guided discretion to decide the fate of those who offend
community norms in the most egregious ways. These facts must play some role in our
construction of Section 31-20A-4(C)(4).
State v. Garcia
,
{147} The Majority strays beyond the limited authority granted us under Section 31- 20A-4(C)(4) and overrules the decision of previous members of this Court on inescapably subjective questions. They do this despite the fact that there has been no change in the law since the proportionality of Fry’s and Allen’s death sentences were previously considered, and there have been no inroads made about how to measure the proportionality of any given death sentence.
{148} The legislative repeal of the death penalty is not support for the Majority’s arguments or outcome. The repeal was achieved through a compromise that required Fry and Allen to submit to their death sentences. It in no way suggests the Legislature has doubts about our comparative proportionality methodology or our assessment of the proportionality of Fry’s and Allen’s death sentences.
{149} These general thoughts guide this dissent. In what follows, I explain my position in much greater detail. A series of preliminary points are addressed first to dispose of several arguments the Majority makes and that are irrelevant to the statutory and constitutional questions at issue here. Discussion there follows.
I. PRELIMINARY POINTS
A. Sentence Versus Execution
{150} The Majority emphasizes that only one individual has been executed in New Mexico since the enactment of the Capital Felony Sentencing Act (CFSA). Maj. Op. ¶¶ 28, 35, 37, 93, 109; Concurrence ¶¶ 140-141. This is inapposite. We must determine if the “sentence of death” in any particular case is “disproportionate.” Section 31-20A- 4(C)(4) (emphasis added). Our focus is on the “sentence” imposed and not on whether the individual sentenced to die is actually executed. “Heinous Crimes” and “Aberrant” Juries
B. {151} The Majority focuses on whether Fry’s and Allen’s crimes were “the most heinous” and whether their juries acted “aberrantly” by imposing death sentences. See Maj. Op. ¶¶ 1, 17, 66, 71, 73, 77, 90 n.22, 97, 102, 119, 120. The words “most heinous” and “aberrant” are not value neutral and inject normative considerations into this matter in a way that is troubling and problematic.
{152}
The CFSA does require us to consider whether sentencing disparities have
occurred in the capital context. But this is a task very different than that in which the
Majority is engaged. They are asking whether Fry’s and Allen’s crimes were sufficiently
“heinous” to justify their death sentences and whether their juries’ decisions to impose
the death penalty were “aberrant.” This is error. We are not and should never attempt
to be “finely tuned calibrator[s] of depravity, demarcating for a watching world the
various gradations of dementia that lead men and women to kill their neighbors.”
Godfrey v. Georgia
,
C.
Gregory
and Race-Based Imposition of Capital Punishment {153}
The Majority states that we are here “faced with similar concerns regarding
proportionality review” that prompted the Washington Supreme Court in
State v.
Gregory
,
{154} To the best of my knowledge, only one author has been willing to suggest that, in New Mexico, “race and ethnicity play[] a role in determining who w[ill] live and who w[ill] die.” Marcia J. Wilson, The Application of the Death Penalty in New Mexico, July 1979 Through December 2007: An Empirical Analysis , 38 N.M. L. Rev. 255, 283 (2008). That author made clear, however, that her observations were not the result of professional, statistical inquiry and she conceded that the data she reviewed and the methodologies she employed to review it “do[] not ‘statistically prove’ anything.” at 259-60. The State Bar of New Mexico, Task Force to Study the Administration of the Death Penalty in New Mexico, Final Report, 18 (Jan. 23, 2004), discusses evidence that race plays some role in the imposition of the death penalty nationally, see id. at 13, but the report does not claim that race plays a factor in death sentencing in New Mexico. See id. at 14-15.
{155} There is no evidence that Fry’s and Allen’s death sentences were imposed as a consequence of Fry and Allen’s race or the race of their victims. Fry and Allen are both white, non-Hispanic; Fry’s victim was a woman of mixed ethnicity and was part Navajo, and Allen’s victim was white, with no evidence that she was an ethnic minority. We are not presented here with circumstances equivalent to those the Supreme Court of Washington confronted in Gregory . This case is different.
II. DISCUSSION {156} The question here is whether the Court should overturn the judgment of previous members of this Court who concluded that Fry’s and Allen’s death sentences are not comparatively disproportionate. We should not for the following reasons: (A) the capital *50 sentences imposed by Fry’s and Allen’s respective sentencing juries were neither excessive nor disproportionate given the facts and severity of Fry’s and Allen’s crimes; (B) the parties did not ask us to reconsider Garcia ; (C) the Majority misinterprets the federal constitutional principles it cites as grounds compelling reconsideration of Garcia ; (D) competing concerns within the CFSA counsel against the revised approach to comparative proportionality review embraced by the Majority; (E) correctly construed Section 31-20A-4(C)(4), it was sensibly applied in Fry’s and Allen’s cases, and that construction is entitled to deference under stare decisis; and finally, (F) revisiting the comparative proportionality of Fry’s and Allen’s death sentences violates principles of finality.
A. The Facts and Severity of Fry’s and Allen’s Cases
{157}
It is essential to begin with the facts of Fry’s and Allen’s crimes because
proportionality review “is first and foremost directed to the particular circumstances of a
crime and the specific character of the defendant.”
Garcia
,
1. {158} On the night of June 8, 2000, Fry bragged to companions that he was “wearing an eight-inch bowie knife” and intended to “stick someone.” Fry encountered Betty Lee, a woman in her thirties and a mother of five, by pure chance at a convenience store at approximately 2:00 a.m. on June 9, 2000. Fry and Betty had never met before. {159} Betty was using a pay phone, was emotionally distraught, and stranded. Fry was driving a vehicle and was accompanied by one male companion, Leslie Engh. Fry offered Betty a ride home, and she accepted.
{160} Fry drove away from the store with Betty and Engh and turned off the paved roadway and onto a dirt road that led out into the desert. Fry claimed that he needed to urinate and drove a “pretty good” distance away from the paved road. Betty sensed something was not right, and when Fry stopped the car, exited, and began urinating, she also exited the vehicle and began walking back towards the paved road. Fry reentered his vehicle, drove alongside Betty, and coaxed her back in.
{161} After Betty reentered the car, Fry drove some distance further, then stopped, and dragged Betty out of the car by her hair. A struggle ensued and Fry summoned Engh to hold Betty’s legs, which Engh did. Fry then attempted to take off Betty’s shirt, but she *51 kicked him. Fry drew his bowie knife and “slammed” it into Betty’s chest. The knife traveled two inches into Betty and penetrated her breast bone and heart sac. She fell to the ground and Fry and Engh attempted to pull off her pants. As they did this, Betty yelled at the men “why are you doing this to me?” She then removed the knife from her chest, threw it into a ravine, broke free, got to her feet, and started running.
{162} As she ran, Betty screamed loudly at a high pitch. Her shirt was around her neck and her chest exposed. Fry chased her, caught her, and then the two men succeeded in pulling off her pants. After they disrobed her, Betty once more broke free and again started running. At this point, she was completely naked.
{163} Fry instructed Engh to find the knife and Fry obtained a sledgehammer from the car. As Engh searched in bushes with a flashlight for the knife, he saw Fry swinging the sledgehammer in the distance. Betty’s screaming came to an end.
{164} Fry struck Betty on the head three to five times with the sledgehammer. The wounds the blows inflicted indicated that Betty had been facedown on the ground when she was struck. Her scalp was torn, her skull split, and her brain lacerated. These blows, in conjunction with the stab wound, caused her death.
{165} After Fry killed Betty, Fry and Engh dragged her corpse by its wrists to some bushes by a ravine, an area where they believed it would not be discovered. Engh did not want to look at the corpse but did and saw that the face was covered in blood and the hair was “in all sorts of different funny directions.” They kicked Betty’s clothes “off towards the edge of the ravine” so that they too would not be discovered.
{166} Fry and Engh drove away from the scene of the murder, but their car became stuck in “a wash.” Fry contacted his parents on his cell phone. It was nearly 4:00 a.m. Fry’s parents, oblivious to what Fry and Engh had just done, met the men at the paved roadway.
{167} Betty’s corpse was discovered by a lineman later that morning. When questioned by the police, Fry denied any involvement in the killing. He did not testify at trial. The evidence presented to Fry’s jury overwhelmingly demonstrated that Fry had killed Betty. Engh testified as a witness for the State and provided the testimony that serves as the principal foundation for the narrative produced above.
{168}
After Fry’s jury returned a guilty verdict, several of Betty’s siblings and children
offered victim impact testimony at the sentencing phase of the proceedings. The
general thrust of that testimony was that Betty had been a kind and generous woman,
that Betty’s family was greatly distressed by the thought of the terror she experienced at
the time of her death, and that the family’s grieving and loss was profound. The sole
aggravating circumstance found by the jury was that Fry perpetrated his murder in the
course of a kidnapping.
State v. Fry
,
{169} Four witnesses presented mitigating evidence for Fry. Id. ¶ 46. A psychologist stated that it was unlikely Fry would engage in additional violence in prison. A pastor stated his belief that Fry had grown spiritually since being incarcerated. Fry’s mother and father indicated a desire to continue knowing their son and spoke of his interests and community involvement. The trial judge informed the jury that, if Fry received a prison sentence for his crimes, he would be imprisoned for a minimum of sixty-seven years. The facts of Allen’s case
2.
{170}
On February 7, 1994, Allen happened to encounter Sandra Phillips as Sandra
walked through Flora Vista, New Mexico to complete an errand and apply for a job at a
local restaurant.
State v. Allen
,
{171} Allen drove Sandra out into the hills “because he wanted to make love to her.” He tied a rope around Sandra’s neck “so he could control her while he made love to her.” Initially, the rope was wrapped around Sandra’s neck three times and then knotted. Allen tightened the rope to a point that it cut off the blood supply to Sandra’s brain. Sandra struggled with Allen for about thirty seconds as he attempted to rape her, but she lost consciousness and went limp. Allen pulled Sandra’s blouse over her chest, removed Sandra’s left boot, and then removed Sandra’s left leg from her pants and underwear. Even though Sandra was unconscious, she was still breathing. Allen wrapped the rope around her neck a fourth time and again knotted it. Sandra died one to two minutes after losing consciousness. She was slowly strangled to death. In the course of the struggle, Allen sustained a facial scratch and a bruised lip. Id. ¶ 5. {172} After murdering Sandra, Allen put her half-naked corpse in a ditch three-and-one- half miles from Flora Vista. Id. ¶ 3. The evidence indicated that the killing occurred somewhere other than where the body was discovered. ¶ 7. Allen cleaned his truck to eliminate any evidence of the murder. Sandra’s corpse remained in the ditch until it was discovered by a shepherd six weeks later. ¶ 3. The jury was shown sixteen photographs of Sandra’s half-naked, decaying corpse.
{173} When the police informed Allen that they suspected he killed Sandra, Allen informed them that the perpetrator was, in fact, a man named David Anderson from Jemez Springs. Yet, Allen told his wife and others that he raped and then killed Sandra in order to prevent her from reporting the rape and expressed to others that he thought he would not be convicted for the crime.
{174} At the sentencing phase, the jury learned that Allen had taken measures to silence other women he had victimized. The jury was informed that, in the 1980s, Allen stole money from a woman and, when she confronted him about the theft, he grabbed *53 her by the throat, pushed her against a wall, and threatened to kill her if she reported the incident to the police. Allen was imprisoned for this conduct. Id. ¶ 80. This testimony in conjunction with Allen’s statements to his wife and others that he raped Sandra and then killed her to prevent her from reporting the rape formed the basis for the jury’s finding that Allen killed Sandra with the aggravating circumstance that he murdered to silence a witness. Id. ¶¶ 79-80. At the sentencing hearing, Sandra’s mother and a family friend testified, and a short video of Sandra on a camping trip was played for the jury. Id. ¶¶ 56-58. This evidence was, by all accounts, particularly forceful and established that Allen’s actions irreparably wounded Sandra’s family and friends. See id. at ¶ 145 (Franchini, J., partial concurrence and partial dissent). {175} Allen also spoke to the jury at sentencing. Id. ¶ 82. He offered mitigating evidence on his own behalf, the only mitigating evidence presented. He “sobbed,” “cried,” and told the jury “he was sorry for the pain he had caused.” The Parties Did Not Ask Us to Reconsider the Merits of Garcia B.
{176}
Neither Fry nor Allen raised the issue of the validity of the comparative
proportionality methodology embraced in
Garcia
until this Court directed them to do so.
Fry and Allen argued that executing them after the legislative repeal of the death
penalty would constitute cruel and unusual punishment in violation of the Eighth
Amendment and deprive them of the equal protection of law. The Court declined to
answer these questions and, instead, directed the parties to submit briefs about the
merits of
Garcia
and the merits of this Court’s application of the principles articulated in
in Fry’s and Allen’s direct appeals. This is troubling.
{177}
“The premise of our adversarial system is that appellate courts do not sit as self-
directed boards of legal inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.”
Carducci v. Regan
, 714
F.2d 171, 177 (Scalia, Circuit Justice, D.C. Cir. 1983) (opinion for the court by Scalia,
J.). “[W]e follow the principle of party presentation. That is, we rely on the parties to
frame the issues for decision and assign to courts the role of neutral arbiter of matters
the parties present.”
Greenlaw v. United States
,
{178} I am not arguing that this Court is without power to independently exercise its authority and decide questions not briefed when it is prudent and necessary to do so. I have advocated for and have done just this. Rather, I contend that we should not reach issues not raised by the parties and not implicated by their arguments. And this is particularly true where doing so requires us to reverse the decisions of prior members of this Court on questions that are, as will be shown, inescapably subjective and based on settled law.
C. Federal Constitutional Principles
{179} The Majority justifies its decision to direct this litigation to Garcia and comparative proportionality review because, in their view, the construction of Section 31-20A-4(C)(4) embraced in does not uphold the “promises of the United States Constitution” and is “insufficient to eliminate the possibility of an arbitrary and capricious sentence, contrary to Furman. ” Maj. Op. ¶¶ 12, 34. “ Furman and Gregg ,” they contend, “require more.” Maj. Op. ¶¶ 74-75.
{180} The Majority misinterprets the United States Supreme Court’s case law on capital punishment and comparative proportionality review and wrongly concludes that this Court is required to ensure a form symmetry in the capital sentencing context that is not required. As we shall see, the federal Constitution does not forbid the application of the death penalty simply because other defendants who committed superficially similar crimes did not receive death sentences. The Supreme Court’s case law points in the opposite direction.
{181}
“The origins of the [Supreme] Court’s death penalty reform efforts can be traced
to 1932, when it ruled [in
Powell v. Alabama
,
{182}
In
McGautha
, the Court considered whether a defendant’s “constitutional rights
were infringed by permitting the jury to impose the death penalty without any governing
standards.” at 185. The Court concluded that standards were not required by the
Federal Constitution. The reader, wondering how such a holding could be when not
a year later in
State v. Furman
,
{183} Justice Douglas openly questioned, in Furman , how the textual source of the right could explain the obvious tension between McGautha and Furman . Furman , 408 U.S. at 248 n.11 (Douglas, J., concurring). And, “[o]f the Justices who participated in both McGautha and Furman , four (including Brennan) took apparently inconsistent positions in the two cases.” Burt, supra , at 1754. This logical difficulty need not be worked out, it need only be noted.
{184}
Furman
was issued only one year after
McGautha
and, as is well known, it is
comprised of nine separate opinions. Every Justice on the Court wrote. “[T]he majority
‘opinion’ in [
Furman
] is a one-paragraph per curiam invalidating under the Eighth
Amendment the death sentences imposed on the three petitioners in the case.” Carol
S. Steiker & Jordan M. Steiker,
Sober Second Thoughts: Reflections on Two Decades
of Constitutional Regulation of Capital Punishment
, 109 Harv. L. Rev. 355, 362 (1995).
“Each of the five Justices in the majority then appended his own opinion, none of which
was joined by any other Justice. Each of the four dissenters wrote his own opinion as
well, although some of them joined in each other’s dissents.” Because each Justice
wrote separately,
Furman
is a case of unusual, if not overwhelming, complexity.
{185}
Scholarship points out that “identifying the ‘concerns’ of
Furman
is a daunting
task.” Steiker,
supra
, 362. Any reader who picks up the opinion will see the truth of
this immediately. The various “opinions present[] a staggering array of arguments for
and against the constitutionality of the death penalty and offer[] little means, aside from
shrewd political prediction, of determining which arguments would dominate in the
decision of any future cases.” One writer suggests that
Furman
“so starkly deviated
from the traditional format that it can be characterized as a decision in which there was
not only no Court opinion but no Court—only a confederation of individual, even
separately sovereign, Justices.” Burt,
supra
, at 1758. The Justices themselves later
acknowledged that “the variety of opinions supporting the judgment in
Furman
engendered confusion as to what was required in order to impose the death penalty in
accord with the Eighth Amendment.”
Lockett v. Ohio
,
{186}
Several of the Justices concurring in
Furman
pointed to statistics that showed
that the death penalty was being applied on racial lines and with pronounced frequency
on black defendants.
{187}
In the wake of and in reaction to
Furman
, thirty-five state legislatures amended
and then reenacted their death-penalty statutes. Burt,
supra
, at 1765. To some of the
Justices concurring in
Furman
, this reenactment came as a surprise. Burt,
supra
, at
1766-67. These events prompted Marshall to openly question whether the American
public was in fact an “
informed
citizenry.”
Gregg v. Georgia
,
{188} “Unlike Furman , each of the Justices did not speak or vote alone [in Gregg and its companion cases]. As in Furman , however, there was no Court at work. The judgments resulted from an aggregation of plurality voting lacking any majority rationale to explain the different outcomes in these cases.” Burt, supra , at 1765. Yet, an outcome was produced.
{189} “[T]he Georgia [( Gregg )], Florida [( Profitt )], and Texas [( Jurek )] statutes that specified various substantive standards for jury discretion” were upheld and “the North Carolina [( Woodson )] and Louisiana [( Roberts )] statutes that purported to abolish jury discretion by mandating death as the penalty for specific criminal offenses” were invalidated. Burt, supra , at 1765. “ Gregg and its accompanying quartet clarified that the death penalty was not per se invalid under the Eighth Amendment and that the Court would now be involved in the ongoing business of determining which state schemes could pass constitutional muster.” Steiker, supra , at 363. “The Gregg , Proffitt , and Jurek opinions did not attempt to list in any definitive fashion the prerequisites for a valid capital punishment regime; rather, they simply upheld each particular scheme presented on the basis of its own peculiar mix of procedural protections.” Steiker, supra , at 363. Whether comparative proportionality was such a prerequisite was eventually litigated in Pulley .
{190}
Unlike
Furman
and
Gregg
,
Pulley
garnered a six-justice majority opinion by
Justice White.
{191}
The Court examined the line of cases beginning with
Furman
and emphasized
that those cases simply did not require comparative proportionality review to ensure that
death sentences are not arbitrarily imposed.
Pulley
,
Any capital sentencing scheme may occasionally produce aberrational outcomes. Such inconsistencies are a far cry from the major systemic defects identified in Furman . As we have acknowledged in the past, there can be no perfect procedure for deciding in which cases governmental authority should be used to impose death.
Pulley
,
{192} There, Justice White rejected the contention, in broad and sweeping language, that capital sentencing must be carried out with perfect symmetry or not at all. I reproduce his words in their entirety as they have a force that is difficult to replicate.
[The] argument that there is an unconstitutional amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment, a lesser penalty, or are acquitted or never charged, seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discriminations will occur which will be difficult to explain. However, one of society’s most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner.
Id.
In the last of the cases we need consider,
McCleskey v. Kemp
,
{193} The defendant in McCleskey —a black, male, resident of Georgia—was sentenced to death for murdering a white police officer in the course of a robbery. Id. at 283. In a habeas petition challenging his conviction, the defendant submitted a sophisticated and rigorous statistical study establishing that black defendants in Georgia are, on the whole, more likely to be sentenced to death than white defendants and that this likelihood increases even further when the victim is white. Id. at 286-87. The defendant claimed that this state of affairs rendered the Georgia death-penalty statute unconstitutional on equal protection and Eighth Amendment grounds. Id. at 291, 299. The Court rejected both arguments, id. at 299, 308-19, and rejected the Eighth Amendment claim with language that has unquestionable significance here.
{194}
The Court understood the defendant to be arguing that his death sentence
violated the Eighth Amendment because it was “disproportionate to the sentences in
other murder cases[,]”
id.
at 306, and responded to this claim with three points. First,
the Georgia Supreme Court had already concluded that the defendant’s death sentence
“was not disproportionate to other death sentences” and supported this conclusion with
citation to several “cases involving generally similar murders.”
Id.
Second,
Pulley
made
clear that, “where the statutory procedures adequately channel the sentencer’s
discretion, such proportionality review is not constitutionally required.”
McCleskey
, 481
U.S. at 306 (citing
Pulley
,
{195} The Court explained that “ Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.” Id. The Court then observed that the Georgia sentencing procedures from which McCleskey’s sentence arose did adequately focus the sentencing authority’s discretion. Id. at 308. The Court accepted the fact that divergent sentencing outcomes in the capital sentencing context were inevitable, id. at 309-12, identified the varying factors that made this so, id. at 307-08 n.28, 311-12, and was unwilling to treat the racial disparities McCleskey’s statistical study demonstrated as proof of unconstitutional prejudice against black defendants. at 309. The mere fact that juries in the capital context will reach divergent conclusions, the Court stated, is no basis to question the validity of those judgments. at 311. Why one jury would, in a particular case, impose death and another show mercy, the Court stated, probed into areas of human judgment that need not and cannot be explained.
Individual jurors bring to their deliberations qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. The capital sentencing decision requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant. It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury’s function to make the difficult and uniquely human judgments that defy codification and that buil[d] discretion, equity, and flexibility into a legal system. (alteration in original) (internal quotation marks and citations omitted). Having
concluded a survey of the relevant Supreme Court case law, we are now in a much better position to examine the Majority’s claim that the federal constitution requires us to revisit and reconsider the comparative proportionality of Fry’s and Allen’s death sentences.
{196} The Majority cannot contend that the need to engage in the comparative proportionality review they suggest is necessary derives from the “promise” of the federal constitution. Where proportionality review need not be conducted to satisfy the constitution, it cannot be that a death sentence is unconstitutional because of some claimed failure to conduct meaningful enough statutory comparative proportionality review. In addition, the contention that Fry and Allen have been subjected to unconstitutionally arbitrary death sentences because of allegedly inadequate comparative proportionality review entirely ignores the fact that Fry and Allen are members of a select and specific cadre of murderers that may, under the CFSA, ever be permissibly put to death, and that Fry’s and Allen’s juries were only permitted to impose death sentences after Fry and Allen received the many procedural protections assured them by the CFSA. In other words, the Majority makes such a monolith of comparative proportionality review that they effectively ignore the many limiting and channeling functions of the CFSA.
D. Competing Forces at Work in the CFSA
{197}
The Majority’s construction of Section 31-20A-4(C)(4) seems to assume that, so
long as we are assiduous enough in unearthing comparison cases and do as robust a
comparative review as possible, we can be assured an objectively correct answer about
the merits of a jury’s capital sentencing decision will emerge. I respectfully disagree.
This view ignores the tensions at work in the CFSA between the statute’s requirement
for individualized capital sentencing proceedings and consistent capital sentencing
outcomes. These commands are at odds with one another and any construction of
Section 31-20A-4(C)(4) must necessarily impose a compromise between them.
{198}
The Majority appears to believe that these difficult tensions are resolved by the
basic realization that “[c]omparative proportionality is not a question for the jury but
rather is intended to serve as a check on the exercise of jury discretion in sentencing”
*60
and that “[t]he primary focus [in assessing the comparative proportionality of a death
sentence] is not on the reasonableness of the jury’s sentence of death, but rather on
how that sentence compares to jury dispositions in comparable cases.”
Maj. Op.
¶ 77
(third alteration in original) (quoting
Papasavvas
,
1.
{199}
All of the provisions of the CFSA must be considered when construing its terms.
State v. Thompson
,
{201} Despite the fact that the CFSA gives to sentencing juries the authority to determine whether to impose death or extend mercy, and despite the fact that this delegation of authority has a constitutional dimension and necessarily grants discretion, Section 31-20A-4(C)(4) nevertheless directs this Court to verify the correctness of the sentencing jury’s determination. The problem inherent with Section 31-20A-4(C)(4) should be self-evident.
{202} On one hand, the constitution requires an individual assessment of the capital defendant’s circumstances and crime and the CFSA ensures that this will occur by granting to juries the right to decide the propriety of capital punishment. On the other hand, Section 31-20A-4(C)(4) assumes that the facts giving rise to death sentences may be flattened for comparison and that this Court may, somehow, meaningfully judge the capital sentencing determinations of juries. I am not the first to acknowledge that *61 these concerns are entirely at odds with one another and present us with what appears to be an unresolvable conflict.
{203}
Other courts have already recognized that comparison of capital sentences is
inherently problematic given the “constitutional requirement for individualized
sentencing in the imposition of death sentences,” and is also inherently illogical as “that
which is unique is also incommensurable.”
Addison
,
{204} The Majority mentions the statistical model of comparative proportionality review adopted by the New Jersey Supreme Court, Maj. Op. ¶ 45, but fails to note that some scholars denounce New Jersey’s attempts—which have been vigorous and resource intensive—to make comparative proportionality review an empirical and scientific endeavor as nothing more than an “abject failure.” Barry Latzer, The Failure of Comparative Proportionality Review of Capital Cases (with Lessons from New Jersey) , 64 Alb. L. Rev. 1161, 1234 (2001). The lesson to be learned from New Jersey is, according to some, one available from the exercise of common sense: “statistics can inform human judgment, not substitute for it.” The fact that comparative proportionality review is, as New Jersey teaches us, a process in which subjective, human judgment is exercised and not one whereby objective, empirical inquiry produces an objectively correct answer is one the Majority appears to reject. They present comparative proportionality review as an objective inquiry. It is not.
{205}
Comparative proportionality review “is conducted on an individual basis for each
death sentence” and “[a]t its heart, . . . will always be a subjective judgment as to
whether a particular death sentence fairly represents the values inherent in [any given]
sentencing scheme for [the most depraved forms of] murder.”
Gregory
,
2. {206} The Majority holds out cross-case comparison as a reliable method to evaluate the merits of death sentences and suggests that consistency in outcomes of capital cases is not only desirable but required. They embrace two incorrect assumptions: first, comparing death sentences, in the way envisioned by the Majority, reliably answers whether a death sentence has been appropriately imposed; and second, any perceived inconsistency in the application of the death penalty is unacceptable. Both of these assumptions are wrong.
{207} The type of comparison in which the Majority engages—one that seeks to assess the correctness of death sentences by scrutinizing the facts and details of capital crimes and sentences—is inappropriate. As one court effectively and imaginatively explained, a court undertaking comparative proportionality review should not treat the endeavor as a forensic scientist would.
[The defendant] would have us review [the comparative disproportionality of his death sentence] as a forensic scientist analyzes fingerprints, looking for a specified number of identity points. Only if one can conclusively determine that each swirl, ridge, and whorl is present in both samples is a match declared. We decline to do this. Crimes, particularly the brutal and extreme ones with which we deal in death penalty cases, are unique and cannot be matched up like so many points on a graph.
State v. Lord
,
{208} This Court does not sit in judgment of what crimes are most severe, heinous, and deserving of the death penalty. Section 31-20A-4(C)(4) cannot be construed to provide this Court that authority. To do so intrudes into an area that is reserved solely for the jury, the only entity capable of deciding what punishment is appropriate for the most severe violations of community norms. So what is the concern for courts undertaking a comparative proportionality review?
{209}
The concern “is with alleviating the types of major systemic problems identified in
Furman
: random arbitrariness and imposition of the death sentence based on race.”
Lord
,
{210} For these reasons, the secondary literature indicates that death sentences are overturned as comparatively disproportionate only very rarely. See Leigh B. Bienen, The Proportionality Review of Capital Cases By State High Courts After Gregg: Only “The Appearance of Justice? ”, 87 J. Crim. L. & Criminology 130 (1996) (surveying the states that perform comparative proportionality review and noting only a limited number of instances where death sentences were overturned as comparatively disproportionate). It is, ironically, the Majority’s position in this case that is the outlier. *63 3. Consistency at all costs
{211}
There is no reason why a death sentence imposed upon a defendant who
committed a particularly deplorable, death-eligible murder could not stand alone as a
permissible death sentence despite the fact that all other death-eligible defendants
received only life sentences. The existence of a statistical outlier in no way establishes
that the imposition of a death sentence is necessarily comparatively disproportionate so
long as there is
some justification for that death sentence
.
Garcia
seems to have
embraced this very thought when it observed that a death sentence could be justified
even if life sentences were normally imposed for the category of murder in which the
crime producing the sentence belongs so long as there is “some justification” for that
death sentence.
{212} It is difficult to see how, if our Legislature ever elected to reinstate the death penalty, any murder involving kidnapping or sexual assault could possibly be deemed not comparatively disproportionate in the wake of the Majority’s opinion. And this illuminates the point that comparative disproportionality is—if taken too far and permitted to serve as a demand for the sort of symmetry and consistency in sentencing Pulley and McCleskey made clear is neither practical nor required—the “poisoned pill” the Majority claims it is not. See Maj. Op. ¶ 53 (stating that comparative proportionality review is not a “poisoned pill” designed to eliminate the death penalty in entire categories of murder, an outcome that would indeed be a “ de facto repeal of the death penalty”).
E. Garcia , Its Application in Fry’s and Allen’s Cases, and Stare Decisis 1. Garcia was correctly decided
{213}
Garcia
construed Section 31-20A-4(C)(4) as limiting the pool of comparison
cases to those “in which a defendant was convicted under the same aggravating
circumstance(s) and then received
either
the death penalty
or
life imprisonment”
Garcia
,
{215} Second, Section 31-20A-4(C)(4) states that the inquiry into the excessiveness or disproportionality of a death sentence is one evaluated with respect “to the penalty *64 imposed in similar cases” and must take into account “both the crime and the defendant.” The manner in which the statute uses the words “cases” and “crime” is suggestive.
{216} Section 31-20A-4(C)(4)’s use of these two words confirms that the Legislature clearly understood they have distinct and different meanings. See Norman J. Singer and Shambie Singer, 2A Sutherland Statutes and Statutory Construction § 46:6 (7th ed. 2014). A murder “case” is a specific iteration of murder involving a specific set of facts. This is distinct from murder as a “crime,” a concept that would encompass a wide array of different types of murder cases. Section 31-20A-4(C)(4)’s use of the phrase “similar cases” suggests that the pool of cases for comparison should be comprised of a limited number of cases closely mirroring the murder for which a defendant received the death sentence. Garcia does just this. Application of Garcia in Fry’s and Allen’s cases
2.
{217}
Review of how
Garcia
was applied in Fry’s and Allen’s direct appeals shows that
sensibly construed the statutory language. Fry’s death sentence was compared
with six cases. These cases involved the aggravating circumstance of kidnapping—the
aggravating factor that made Fry death eligible. Four of the comparison cases were
death sentences:
Allen
,
{218}
In
Allen
, the Court relied on the comparative proportionality analysis in
Clark
given the similarities between Clark’s and Allen’s crimes. In
Clark
, this Court identified
two cases where defendants received death sentences for murders involving the
aggravating factors of kidnapping and murder of a witness—
Guzman
,
{219} There is nothing wrong or inadequate about the Court’s analysis in either case. In both instances, the Court paid appropriate deference to the respective jury *65 determinations while simultaneously examining death and life sentences in similar cases. Stare decisis
3.
{220}
The principle of stare decisis is at its zenith when this Court is asked to
reconsider the meaning of statutes where the previous interpretation was accepted by
our Legislature.
United States v. Lane
,
{221}
Garcia
has been challenged over the years and this Court has repeatedly
declined to reconsider the comparative proportionality methodology adopted there.
See
Fry
,
{222} For these reasons, there can be no doubt that the Legislature was aware of the debate surrounding Garcia and was perfectly capable of overturning our construction of its words if they believed our construction lacking in some respect. It did not, and this failure to act has unquestionable significance. The Legislature embraced Garcia . The Majority rejects this conclusion, but for reasons that do not withstand scrutiny. {223} The Majority states that “the Legislature’s intent in adopting Section 31-20A- 4(C)(4) is clear from its history, and our application of Garcia has not fulfilled that purpose.” Maj. Op. ¶ 81. They cite authority stating that legislative inactivity cannot ratify a clearly erroneous interpretation of a statute. Maj. Op. ¶ 82. That the Majority is certain that Garcia was wrongly decided does nothing to change the fact that this Court has consistently affirmed Garcia for decades. The suggestion that legislative acquiescence has no force here because it was always plain to see that was wrongly decided strains credulity.
F. Finality
{224}
The Majority’s ruling tells those convicted and sentenced under lawful
proceedings later affirmed that they need never “reconcile themselves” to sentences
imposed and affirmed and broadcasts to the public “that we have no confidence that the
laws are administered justly.”
Spalding v. Aiken
,
{225}
In 1981, Michael Guzman abducted Colleen Bush and her friend Julie Jackson
as they walked home late one night from UNM.
Guzman
,
No one in the criminal justice process has ever asked what it’s like for me, as the victim in this case, to survive the defendant’s requests for new hearings over the last 25 years. . . . It is excruciating. Your honor, to go through delay after delay has been torture for me. Here we are again, with another habeas corpus petition. . . . [T]he habeas corpus procedures . . . need to be reformed to prevent continuing state-sanctioned psychological brutalization of victims of horrific crimes like myself. . . . This man kidnapped, raped and murdered my best friend, who was a kind and gentle person, and he thought he had done the same to me. As the victim of a violent crime I have rights, too. I have the right to be treated with fairness and respect for my dignity. I have the right to a timely disposition. Where is the fairness? Where is the dignity? And where is the timely disposition? This needs to stop now. Each continuance is like a knife in my heart and, your honor, I have been stabbed enough.
Leslie Linthicum, Guzman murder case hearings reopen old wounds , Albuquerque Jour nal (Aug. 1, 2013), https://www.abqjournal.com/240179/guzman-murder-case-hearings- reopen-old-wounds.html (last visited May 23, 2019). It is unnecessary to state in express terms what this Court should glean, in the present context, from this victim’s agony.
III. CONCLUSION
{226}
The words of Justice Brennan, made in a similar context but for different reasons,
summarize my thoughts: “In my view the Court errs at all points from its premises to its
conclusions.”
McGautha
,
{227} For these reasons, I respectfully dissent.
JUDITH K. NAKAMURA, Chief Justice
I CONCUR:
PETRA JIMENEZ MAES, Justice, Retired
Sitting by designation
Notes
[1] H.B. 285, 49th Leg., 1st Sess., Section 6 (N.M. 2009), available at https://www.nmlegis.gov/sessions/09%20Regular/final/HB0285.pdf (last visited June 4, 2019).
[2] Marcia J. Wilson, The Application of the Death Penalty in New Mexico, July 1979 Through December 2007: An Empirical Analysis , 38 N.M. L. Rev. 255, 255 (2008); NMSA 1953, § 40A-29-2 (1975); see also Gregg , 428 U.S. at 179-81 n.23.
[3] The repeal must be read as leaving the statutory proportionality requirement and constitutionally required
protections undisturbed for murders committed prior to July 1, 2009. This is due to the savings clause, Section 6 of
H.B. 285, 49th Leg., 1st Sess., and because the procedures afforded under the pre-repeal, 1979 capital sentencing
scheme were constitutionally mandated components of a capital sentencing scheme.
Pulley
,
[4] State Bar of New Mexico, Task Force to Study the Administration of the Death Penalty in New Mexico, Final
Report, 18 (Jan. 23, 2004) (hereinafter “Final Report”),
https://www.nmbar.org/NMBARDOCS/PubRes/Reports/TaskforceDeathPenalty.pdf (last visited June 4, 2019)
(referring to
Furman
,
[5]
Allen
,
[6]
Fry
,
[7] Wilson,
supra
, at 301;
see, e.g.
,
Territory v. Ketchum
,
[8] In addition to the fifty-one cases advancing to death penalty sentencing before the completion of Marcia Wilson’s
study in 2007, Wilson,
supra
, at 269, a jury also considered the death penalty for Michael Astorga.
See State v.
Astorga
,
[9]
See
Wilson,
supra
, at 272. The following fourteen opinions and one waiver of direct appeal document these
fifteen death sentences:
State v. Treadway
,
[10]
Treadway
,
[11]
Clark v. Tansy
,
[12] Exec. Orders No. 86-37 (Gilbert), 86-38 (Garcia), 86-39 (Guzman), 86-40 (Compton), 86-41 (Adams) (Nov. 26, 1986) (commuting the five death sentences); see generally Toney Anaya, Statement by Toney Anaya on Capital Punishment , 27 U. Rich. L. Rev. 177 (1993).
[13] Jerome Martinez , S-1-SC-22330, order at 1-2.
[14] Compare Wash. Rev. Code § 10.95.130(2)(b) (requiring the Washington Supreme Court to determine “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant”), with Section 31-20A-4(C)(4) (requiring this Court to consider whether “the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant”).
[15] See Final Report, 15-16. Courts often use the phrases “universe of cases” and “pool of cases” interchangeably. For clarity, this opinion uses the term “universe” to refer to the broad group of cases from which comparison cases are drawn, and “pool” to refer to the cases selected for comparison.
[16] 2007 N.J. Sess. Law Serv. ch. 204 (West)
[17]
McGuire
,
[18] State v. Fry , S-1-SC-29025, dec. ¶¶ 4-5 (Aug. 28, 2007) (noting that the State sought the death penalty on the aggravating circumstance of kidnapping); State v. Fry , D-1116-CR-2000-00542, miscellaneous entry (Sep. 4, 2003) (finding the aggravating circumstance of murder in the commission of a kidnapping).
[19]
See, e.g.
,
State v. Lovett
,
[20] Jacobs is not a reliable comparison case because the death sentence was not affirmed on appeal. See 2000- NMSC-026, ¶¶ 1, 3 (reversing the sentence due to error in the penalty phase of the trial).
[21] State v. Bedford , D-911-CR-2005-00046, court’s jury instructions (June 21, 2007) (finding kidnapping aggravators for both victims); State v. Ortega , D-202-CR-1988-44752, miscellaneous entries (Nov. 15, 1988) (finding kidnapping aggravators for both victims).
[22] We acknowledge that, according to his accomplice’s testimony, Bedford did not set the car on fire himself.
Bedford
, S-1-SC-30664, dec. ¶¶ 2-3. This does not serve to justify the sentencing disparity between Bedford and
Fry because in the majority of the cases similar to
Fry
which resulted in a life sentence the defendant committed
the heinous acts himself.
See Lovett
,
[23] Because the death sentences of Jerome Martinez and Frank Martinez were not affirmed on appeal, they do not
qualify for consideration under ,
[24] The supplemental briefs of Fry and Allen filed in this Court both assert these facts, which are not contested by any party, despite the unavailability of court records to support them. Nevertheless, the information is consistent with all other sources we have located concerning the charges, convictions, and sentencing of Adams.
[25] James Coates, A Governor’s Fit Of Conscience Over An Unconscionable Crime , Chicago Tribune, Dec. 7, 1986, http://articles.chicagotribune.com/1986-12-07/news/8604010437_1_noel-johnson-toney-anaya-garrey-carruthers (last visited June 4, 2019).
[26] On retrial for the murder of the first victim, Lovett was again convicted of first-degree murder and sentenced to life imprisonment. See State v. Lovett , S-1-SC-34815, dec. ¶¶ 1-3 (June 2, 2016) (non-precedential); Lovett , D-506- CR-2003-00406, judgment, sentence, and commitment (June 17, 2014).
[27] Although death sentences were initially imposed in
Adams
,
Cheadle
, and
Henderson
, none of those cases reliably
support the imposition of the death penalty.
See Henderson
,
[28]
See
Section 31-20A-4(C)(4) (1979, repealed 2009) (emphasis added); ,
[29] Section 31-20A-5.
[30] Section 31-20A-4(C)(4) (emphasis added).
[31]
Compton v. Lytle
,
[32] Allen was sentenced to death for first-degree murder, twenty-five years for kidnapping resulting in great bodily harm, and thirteen years for attempted criminal sexual penetration resulting in great bodily harm. State v. Allen , D- 1116-CR-9500014, judgment, sentence, and commitment (Dec. 22, 1995). The latter two sentences were merged and run concurrently to each other but run consecutive to the sentence for the murder conviction.
[33] Including the death sentence reduced to a life sentence in this case, Fry has been sentenced to life in prison four times. State v. Fry , D-1116-CR-2000-00513, judgment, sentence, and commitment (Apr. 24, 2002) (sentencing Fry to death); Fry , D-1116-CR-2000-00542, judgment, sentence, and commitment (Nov. 20, 2003) (sentencing Fry to life in prison for first-degree murder, to run consecutively to the sentence in Fry , D-1116-CR-2000-00513); State v. Fry , D-1116-CR-2000-01055, judgment, sentence, and commitment (Feb. 25, 2005) (sentencing Fry to two sentences of life in prison for two counts of first-degree murder, to run consecutively to each other and to the sentences imposed in Fry , D-1116-CR-2000-00513 and Fry , D-1116-CR-2000-00542).