Lead Opinion
{1} Defendant appeals his death sentence pursuant to the Capital Felony Sentencing Act (CFSA), NMSA 1978, §§ 31-20A-1 to -6 (1979, as amended through 1991). He also appeals his convictions of first degree murder in violation of NMSA 1978, § 30-2-1(A)(1) (1994), first degree kidnapping in violation of NMSA 1978, § 30-4-1 (1973, prior
I.
{2} The victim of Defendant’s crimes was seventeen years old.
{3} Six weeks later, on March 21, 1994, a shepherd found the victim’s partially decomposed body beside a tree in a remote, hilly area approximately three-and-one-half miles north of Flora Vista. Investigators who observed the scene testified that a denim coat was draped over the lower part of the body when they arrived. The victim’s mother testified that she had instructed her daughter to wear the denim coat on the day she disappeared. The coat belonged to the victim’s mother. The coat contained blood stains that were consistent with the victim’s blood.
{4} When investigators lifted the coat, they observed that the victim’s shirt was pulled up over her bra, one of her lace-up boots had been removed, and her pants and underwear had been pulled off one of her legs. The remains of a sanitary napkin adhered to her underwear. The victim’s mother testified that her daughter started her menstrual period on the day before she disappeared.
{5} A medical investigator who observed the crime scene and a forensic pathologist who performed the autopsy on the victim’s body testified that the condition of the victim’s clothing was consistent with a sexual assault. In addition, the forensic pathologist found evidence of bruising on the victim’s legs that may have indicated a struggle during a sexual assault. Defendant’s mother-in-law testified that she observed a scratch on his face and a bruise on his lip around the time that the victim disappeared. The forensic pathologist testified that the decomposition of the victim’s body may have prevented the discovery of further evidence of a sexual assault or struggle with an assailant.
{7} The medical investigator also testified that the condition of the crime scene suggested that the victim had been killed elsewhere before her body was placed in the location where it was discovered on March 21. There was a boot print in the soil beneath the victim’s body. The State presented evidence to suggest that the killer left the boot print when he carried the victim’s body to that location, and that the boot print was consistent with one of Defendant’s boots.
{8} Investigators also linked Defendant to the rope that was used to strangle the victim. Several witnesses testified that the rope had a distinct design and came from the back of a white pickup that belonged to the grandfather of Defendant’s wife at the time of the victim’s disappearance. These witnesses testified that the rope was kept in the back of the pickup and was used to restrain a trash barrel when the pickup was hauling trash to the dump. Defendant was seen driving this white pickup around the time of the victim’s disappearance. Several witnesses also observed that the Defendant had extensively cleaned the cab of the pickup after the victim disappeared.
{9} Several months later, the white pickup was sold to another individual, who testified that he found strands of red hair consistent with the victim’s hair under a seat-belt strap on the day he purchased it. He threw the hairs away after looking at them because he did not know that they were evidence of a crime, and investigators found no additional hairs when they searched the pickup in January 1995. After investigators returned the pickup, however, the owner found more strands of red hair when he removed a broken handle that was used to roll the window down. Other witnesses testified that the window handle was not broken when Defendant first borrowed the pickup in January 1994.
{10} Defendant made several statements both before and after his arrest. On February 24, 1994, while meeting with an off-duty sheriffs deputy and the deputy’s spouse on an unrelated matter, Defendant stated that he was waiting for a friend at the convenience store in Flora Vista on the date of the victim’s disappearance, and that he had seen her walking and going into a couple of buildings at that time. At a later meeting, both the deputy and his spouse saw the victim’s name written in red ink on a page of Defendant’s daily planner that corresponded to the date of the victim’s disappearance. The State presented the daily planner to the witnesses at trial, and both noted that the pages had been replaced and that the victim’s name no longer appeared on the pages. Defendant also stated to other witnesses that he saw the victim in Flora Vista on the date of her disappearance.
{11} In March 1994, after the victim’s body was found, Defendant had a conversation with his wife’s stepfather, in which Defendant stated that he had seen the victim hitchhiking near a bar and restaurant in Flora Vista, that he had stopped to pick her up, and that he offered her a ride into Aztec “to do some applications there or something.” Defendant then explained that the victim had become very angry and insisted on being let out at the convenience store in Flora Vista. Defendant stated that he bought her a soft drink and a candy bar to calm her down, and that the last time he saw her was at the convenience store. Defendant also told several other witnesses that he talked to the victim or gave her a ride on the date of her
{12} One night during the summer of 1994, while Defendant and his wife were working with a carnival in another state, Defendant stated to his wife “that he was with a girl and ... he had sex with her, and that after they had sex that she said that she was going to the cops, and so that, so that he killed her.” Defendant’s wife told her mother about the statement, and it was eventually reported to police. When investigators asked Defendant about the statement on December 27, 1994, he responded that he had lied to his wife. Around the same time period, Defendant told another witness that he had been kidding when he made the statement.
{13} Following his arrest on December 29, 1994, Defendant was detained in the San Juan County Detention Center. There he told two inmates that he killed the victim. On two separate occasions, Defendant told the first inmate: “I killed that girl.” On the second occasion, Defendant admitted that he had confessed to his lawyer and remarked that: “I wish I wouldn’t have took, taken that damn rope with me.” Later, Defendant told a second inmate: “I’m going to tell you the truth. I’ll tell you what happened to” the victim.
{14} Defendant then proceeded to give the following account of his crimes: He picked up the victim outside a bar in Flora Vista and took her up in the hills. According to Defendant, she was “making moves” on him, he was “making moves” on her, and after that “some stuff happened.” He tied a rope around the victim. He tied her up because she was “cute” and he wanted to “make love” to her. Also, he “liked having control over people” and wanted to “get back” at his girlfriend because they had a fight. While the victim was tied up in Defendant’s pickup and he was starting to “make love” to her, she “just fell down” or “limped down.” After the victim “limped down,” Defendant got scared and tied the rope again. He noticed that the victim was dead and was going to take her somewhere else, but the road was too muddy. He picked her up, carried her off the side of the road, and threw her in a wash or a ditch.
{15} Defendant was tried before a jury in December 1995. In the initial phase of his trial, the jury found Defendant guilty of first degree murder, first degree kidnapping, and attempted CSP. The trial court then sentenced Defendant to forty-two years imprisonment for kidnapping and attempted CSP after taking into account his prior convictions. In the second phase of the trial, the jury found two aggravating circumstances, murder in the commission of a kidnapping and murder of a witness to a crime to prevent report of the crime; the jury specified the death penalty, and the Court imposed sentence pursuant to the jury’s verdict. This direct appeal followed.
II.
{16} Under the first issue, prosecutorial misconduct, Defendant has raised issues of evidentiary error as well as improper argument. Defendant contends that prosecutorial misconduct was “pervasive and thematic, appealing to the juror[s’] fears and sympathy” and that it “violated [Defendant’s constitutional rights to be free of cruel and unusual punishment, to an impartial jury, and to due process of law.” We address these issues under three headings: claims of evidentiary error, other claims of prosecutorial misconduct, and cumulative error. We first address the claims of evidentiary error. The other claims of prosecutorial misconduct and cumulative error are addressed subsequently under VII.
{17} Defendant asserts that the trial court erred in admitting evidence of his statement to his wife, his invocation of his right to remain silent, his conversation with his attorney about his trial strategy, the risk to inmate witnesses who testified against him, a comparison of his case to other cases,
A. Defendant’s Statement to his Wife
{18} Defendant’s wife disclosed to police and later testified at trial that Defendant told her he had raped and killed a girl, and that Defendant said he killed the girl because she threatened to report the rape to the police. According to his wife, Defendant probably made this statement one night in the summer of 1994. Investigators learned of the statement when they questioned Defendant’s wife later that year. They incorporated the statement into affidavits that they used to show probable cause to obtain a warrant for Defendant’s arrest and for a search of his vehicle.
{19} In December 1994, investigators interviewed Defendant and questioned him about the statement at issue. Before the interview, they read Defendant his rights under Miranda v. Arizona,
{20} Shortly after the interview, investigators executed the search warrant and gave Defendant a copy of the affidavit containing the statement at issue. Defendant showed the affidavit to a co-worker and acknowledged to the co-worker that he had made a statement similar to the one contained in the affidavit. Later, he discussed the statement again with a jail inmate.
{21} Defendant objected to the admission of the statement at trial and asserts on appeal that the trial court erred in admitting his statement to his wife because it is a confidential communication that is subject to the husband-wife privilege under Rule 11-505 NMRA 1999. The State concedes that the statement falls under the privilege contained in Rule 11-505 but contends that Defendant waived this privilege prior to trial by disclosing the statement to third parties. In response to this contention, Defendant asserts that the investigative tactics used by the State to elicit his waiver of the husband-wife privilege were so improper that they rendered any waiver invalid.
{22}In light of the- State’s concession, we agree with Defendant’s initial assertion that his wife’s statement was subject to the husband-wife privilege, and that Defendant was in a position to claim the privilege notwithstanding his wife’s initial disclosure of the statement to police. Rule 11-505(B) gives a person “a privilege in any proceeding ... to prevent another from disclosing a confidential communication by the person to that person’s spouse while they were husband and wife.” Under Rule 11-512 NMRA 1999, “[e]vidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was A. compelled erroneously or B. made without opportunity to claim the privilege.” Thus, the fact that Defendant’s statement was disclosed to police and included in a search warrant does not necessarily render the statements admissible, because the disclosure occurred before Defendant had the opportunity to claim the privilege. See State v. Compton,
{23} Defendant contends that the husband-wife privilege under Rule 11-505 applies to statements that are introduced in the courts of the State of New Mexico to support an application for a warrant. We acknowledge that in New Mexico “[t]he rules with respect to privileges apply at all stages of all actions, cases and proceedings.” Rule
{24} Moreover, and most importantly, we determine that after Defendant was given the opportunity to claim the husband-wife privilege, he waived that privilege by disclosing the statement at issue to third parties. See Rule 11-511 NMRA 1999; 25 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5602, at 828 (1989). This waiver was not rendered invalid by the prior use of the statement in the search warrant affidavit. Regardless of whether communications protected by Rules 11-505 and 11-512 are admissible in warrant-application proceedings, law enforcement officers are not prohibited from using information that is voluntarily provided by a suspect’s spouse for investigative purposes outside the courtroom. See United States v. Harper,
B. Defendant’s Silence
{25} Defendant’s next contention is that the prosecutor violated his right to due process by eliciting testimony that Defendant had invoked his right to remain silent after being advised of this right in accordance with Miranda,
{26} At trial, the prosecutor questioned Detective Christensen about this statement as follows:
Q: [W]hat, if anything, did the Defendant say to you in the interview room at the sheriffs office?
A: He said that he, basically, had some knowledge of the [victim], but anything that he said would implicate him, and, uh, stopped there.
Q: Okay. And when he said that he had some knowledge of [the victim], did he say with respect to what about [the victim]? I mean—
A: No, he did not go into detail.
Q: Did he say that he knew how [the victim] lived or not lived or—
A: Well, anything that he said would implicate him in the — in the death of [the victim],
Q: And did you — after—did he elaborate on, at all, what he knew that would implicate him on the death of [the victim]?
A: No, he did not.
Defendant did not object to this testimony until after Detective Christensen was excused as a witness and the jury was excused from the courtroom.
{27} Notwithstanding the lack of a timely objection at trial, an appellate court will apply the doctrine of fundamental error and grant review of certain categories of prosecutorial misconduct that compromise a defendant’s right to a fair trial. See State v. Rojo,
{28} These same rules do not necessarily apply when a defendant “hafs] not remained silent during questioning, and the prosecutor’s inquiry at trial concerned his [or her] ... statements, not his [or her] refusal or failure to make a statement.” State v. Loera,
To elicit such facts properly, the recounting witness may conclude the account in a natural fashion by indicating that there is nothing more to say because the defendant chose to stop. Otherwise, the jury might erroneously infer that the police cut the interview short before the defendant had a full opportunity to give his account.
Bennett L. Gershman, Prosecutorial Misconduct § 9.3(d), at 9-22 (1998).
{29} During the bench conference that followed Detective Christensen’s testimony regarding Defendant’s statement to police in this case, the trial court concluded that Defendant’s statement was a “sharing of information” rather than an invocation of his Fifth Amendment rights. Nevertheless, the trial court proceeded to warn the prosecutor that
{30} Under these circumstances, we agree with the trial court that the focus of the prosecutor’s inquiry and the detective’s testimony was a statement that Defendant made rather than his refusal or failure to make a statement. We note that unlike the prosecutor in Hennessy,
C. Defendant’s Communications with his Trial Counsel
{31} Defendant asserts that the trial court erred by admitting testimony of other inmates regarding statements Defendant made to them about his trial strategy and his communications with his trial counsel. The prosecutor elicited testimony from one inmate who stated that Defendant said he was going to “beat this case.” The prosecutor elicited testimony from another inmate who stated that Defendant said he had “confessed to his lawyer ... from the very first that he’d killed the girl,” but that “his lawyer had told him that all they had was circumstantial evidence, and that if he’d just keep his mouth shut that he would get him off.” Defendant did not object in a timely manner to this line of questioning at trial. On appeal, he claims that the testimony elicited by the prosecution was irrelevant and its only purpose was to impugn the integrity of Defendant’s trial counsel or to improperly suggest to the jury that they should infer Defendant’s guilt from his invocation of his constitutional rights. See U.S. Const. amends. V, VI; N.M. Const. art. II, §§ 14 (as amended 1994), 15.
{32} We recognize that testimony or comments regarding Defendant’s invocation of his right to counsel may amount to plain or fundamental error for the same reasons that we discussed with respect to Defendant’s invocation of his right to remain silent. See Gershman, supra, § 9.3(c), at 9-20. Further, we recognize that it is improper for the prosecution to attack defense counsel’s integrity by insinuating that defense counsel believed his client was guilty or was lying, see Gershman, supra, § 10.4(b), (c), and that communications between Defendant and his lawyer may be subject to the lawyer-client privilege, see Rule 11-503 NMRA 1999.
{33} In this case, however, the testimony regarding Defendant’s communications with his trial counsel was not privileged because Defendant disclosed the communications to a third party. See Rule 11-511. The third party’s testimony did not indicate that Defendant’s trial counsel was speaking on Defendant’s behalf or that Defendant was invoking or following his counsel’s advice to “just keep his mouth shut.” On the contrary, the testimony indicated that Defendant instead proceeded to share both his admissions of guilt and his lawyer’s advice with others. Further, the testimony did not dwell on Defendant’s trial counsel but instead turned to Defendant’s conversations with his mother. Under these narrow circumstances, we conclude that the inmate’s testimony regarding Defendant’s communications with his trial counsel is not the kind of reference to the invocation of Defendant’s constitutional rights that would amount to plain or fundamental error. Cf. Loera,
{34} With respect to the issue of whether the prosecutor’s questions amounted to a conscious effort to impugn the integrity of Defendant’s trial counsel, we conclude that the view of the evidence suggested by Defendant is “not the only possible construction,” and that the trial court was “in a better position to weigh and analyze such situation-ally
{35} Finally, we note that some portions of the inmate’s testimony were consistent with Defendant’s position of maintaining his innocence at trial. In particular, the statements that the evidence against Defendant was circumstantial and that he would “beat this case” were consistent with that position. Inasmuch as these statements were self-serving, we cannot say that Defendant was unfairly prejudiced by their admission. Thus, we do not find a basis for reversal in the admission of the inmate’s testimony regarding Defendant’s statements about his trial strategy or his communications with his trial counsel.
D. Risk to the State’s Witnesses
{36} Defendant asserts that the trial court erred by allowing testimony about the “inmate code” under which inmates may place their own safety in jeopardy by testifying against other inmates. Defendant also challenges the prosecutor’s remark regarding the possibility that inmate witnesses “could get a shank in them.”
{37} The prosecutor’s line of questioning was invited by defense counsel’s repeated attacks on the credibility of the inmate witnesses. During his opening statement, for example, defense counsel stated, “the only people who are going to be pointing to [Defendant] and saying he [did] it are ... jailhouse snitches.” Defense counsel continued to raise the issue of the inmates’ credibility during cross-examination, when he questioned each of the inmate witnesses about possible incentives that might have given these witnesses a motive to lie. During closing argument, defense counsel urged the jury not to base its verdict “on the word of child rapers, liars, thieves, [and] people hoping to get lesser sentences when they face judgment themselves.”
{38} Given that attacking the credibility of the inmate witnesses in this manner was such a central theme of the defense, the prosecution was entitled to introduce evidence to" rebut this attack. See United States v. Mitchell,
E. Comparison to Other Cases
{39} Relying on State v. Chapman,
F. Defendant’s Prior Bad Acts
{40} Defendant also contends that the trial court erred in admitting evidence that unfairly suggested to the jury that Defendant had a propensity to act in conformity with prior bad acts. See Rule 11-404(B) NMRA 1999. According to Defendant, the State introduced improper propensity evidence at the penalty phase of his trial by calling the victim of a crime he committed in 1982 as a witness against him. Defendant also asserts that the State introduced improper propensity evidence at the guilt phase of his trial by eliciting testimony that he had stolen money from a witness’s grandfather, that he had been arrested for driving while intoxicated (DWI), that he was previously employed with a carnival, and that he had been prepared to “shoot it out” with police prior to his arrest. For the following reasons, we disagree with Defendant’s contentions regarding evidence of prior bad acts.
{41} We conclude that the evidence of Defendant’s prior crime in 1982 was relevant to prove his motive for the murder in the context of the aggravating circumstance of murdering a witness. See State v. Clark,
{42} The testimony suggesting that Defendant had stolen money from a witness’s grandfather and that he had been arrested for DWI was brief, inadvertent, and not responsive to the prosecutor’s question. In each instance, the trial court and the prosecutor stopped the testimony before the witness had a chance to elaborate; the trial court also promptly instructed the jury to disregard the statements. We conclude that “[t]here has been no showing that the trial court’s prompt sustaining of objections and admonishments to the jury failed to cure the effect of the” very brief testimony in question. State v. McGuire,
{43} Information regarding Defendant’s carnival work was admissible as background evidence to show the context of other admissible evidence, namely Defendant’s statements to detectives regarding his initial contact with the victim on the day of the murder, and the time frame during which Defendant made the statement to his wife that he had raped and killed a girl. See State v. Ruiz,
{44} Defendant’s post-arrest statement of his intent to “shoot it out” with officers prior to his arrest is not a prior bad act, because no evidence was presented to show that Defendant carried out his intent. In addition, his statement was admitted for the purpose of showing his consciousness of guilt, a permissible use under Rule 11-404(B). See Ruiz,
G. Psychological Records and Expert Testimony
{45} The trial court granted the State’s motion for discovery of confidential medical records regarding Defendant’s voluntary commitment at a mental hospital prior to the crimes in question. The trial court also admitted the expert testimony of Dr. Matthews, a psychologist who had reviewed these records. Defendant asserts that the medical records were not a proper subject of discovery because he did not place his mental health at issue in the case. See Rule 11-504(B), (D)(3) NMRA 1999; cf. State v. Roper,
{46} The State concedes, and we agree, that the confidential medical records at issue in this case were not a proper subject of discovery because Defendant did not place his mental health at issue at any phase of his trial. See Roper,
{47} With regard to Defendant’s other objections to the testimony of Dr. Matthews, we note that these objections were not raised in a timely manner at trial. Rule 11-103(A)(1) (requiring an objection “stating the specific ground of objection” in order to challenge a trial court’s admission or exclusion of evidence). Thus, we only review for fundamental or plain error. See State v. Begay,
{48} Dr. Matthews was called to testify about a statement attributed to Defendant by one of the inmate witnesses to whom Defendant confessed his crimes. The inmate witness testified that he asked Defendant why he killed the victim and that Defendant replied: “I don’t know. It was like I was standing outside of myself watching myself do this.” Dr. Matthews reviewed this testimony, concluded that Defendant was describing a dissociative experience, and testified that dissociative experiences are a common way of dealing with situations that are unusual, highly charged, or stressful. He also testified that a dissociative experience does not indicate a mental condition that would negate a defendant’s capacity to form a deliberate intent to kill.
{49} Deliberate intent is an element of the crime of first degree murder with which Defendant was charged in this case, see UJI 14-201 NMRA 1999, and whether a dissociative experience affected his capacity to form such intent was at issue because of Defendant’s statement that he was “outside of himself’ when he killed the victim. Further, given Defendant’s failure to preserve the issue of evidentiary reliability for appellate review, we cannot say that it was plain error to conclude that Dr. Matthews’s opinion about the relationship between dissociative experiences and the capacity to form a deliberate intent met the requirements of Rule 11-702. In particular, we do not agree with Defendant that the psychological significance of dissociative experiences or their relationship to a person’s capacity to form a deliberate intent to kill are matters of common knowledge for which an expert opinion is unnecessary.
{50} Further, this case is distinguishable from Chapman,
{51} In contrast, the trial court in the present case had no opportunity to give a limiting instruction because Defendant did not request one. Further, Dr. Matthews did not testify about any notorious criminal nor equate Defendant’s mental condition with that of another. Thus, we conclude that the admission of Dr. Matthews’ testimony was neither fundamental nor plain error.
H. Victim Impact Evidence
{52} Defendant contends that the trial court erred by admitting victim impact evidence during the final stage of Defendant’s trial when the jury was considering whether to impose a sentence of death or life imprisonment. We recently addressed the issue of victim impact evidence in Clark III,
{53} We first address the effective date of the victim’s rights laws in relation to the timing of the prosecution in this case. We note that Defendant’s arrest and the crimes he committed occurred in 1994. The crime victim’s rights provisions in our state constitution did not take effect until the Legislature provided statutory authority to implement them. See N.M. Const, art. II, § 24(C). The effective date of the relevant implementing legislation is January 1, 1995. See 1994 N.M.Laws, ch. 144,<,§ 16. We conclude, however,that the admission of victim impact evidence in this death penalty case does not depend on the authority provided by the crime victim’s rights laws. Rather, as we discussed in Clark III,
{54} Notwithstanding any statutory authority for admitting victim impact evidence, we wish to emphasize that the Rules of Evidence requiring relevance and the balancing of unfair prejudice also apply to testimony and exhibits that are introduced in a capital felony sentencing proceeding for the purpose of showing victim impact. See Rules 11-402 NMRA 1999,11-403 NMRA 1999; of. Ammerman v. Hubbard Broad., Inc.,
{55} In this case, however, we conclude that the trial court was careful to limit the State’s presentation of victim impact testimony so that it did not exceed the boundaries established in Payne and its progeny. In particular, the State’s presentation was limited to “evidence about the victim and about the impact of the murder on the victim’s family [that] is relevant to the jury’s decision as to whether or not the death penalty should be imposed.” Payne,
{56} We note that only two of the forty-six witnesses called by the State offered testimony about victim impact, and their testimony occupied only thirty minutes of an eighteen-day trial. The victim’s mother, who had testified earlier during the guilt phase of Defendant’s trial, only appeared at the penalty phase for a few minutes to lay the foundation for admitting the videotaped depiction of
{57} The videotape had been edited so that it lasted only three minutes. It depicted and described a campground scene during an elk-hunting trip a few months prior to the victim’s death. Neither the victim nor any other person were in view during most of the video. During the few moments when the victim did appear, she was shown eating-lunch and standing beside other campers. She was dressed in a jacket and blue jeans. There were no close-ups, and she did not speak.
{58} No members of the victim’s family testified regarding the emotional impact of the victim’s disappearance and death. That subject was presented by a friend of the family who testified for approximately twenty-three minutes. The witness had not testified previously and was not a member of the victim’s family; much of her testimony simply recounted the facts that laid the foundation for her personal knowledge of the victim and her family. See generally 2 Weinstein & Berger, swpra, § 401.04[4][a] (discussing the relevance of background evidence). After laying this foundation, the witness testified that she spoke with the victim at the elk-hunting trip a few months prior to her death, and that the victim was making plans to come home to live with her mother and go to nursing school. The witness then described the impact of the victim’s disappearance and death on her family.
{59} We believe the State’s presentation of victim impact evidence in this case falls within the type of “ ‘quick glimpse of the life which [the defendant] chose to extinguish’ ” that we discussed in Clark III,
{60} We also conclude that Defendant was not unfairly prejudiced by the testimony regarding the victim’s future plans and the impact of her disappearance and death on family members. Payne and its progeny specifically allow testimony regarding a victim’s “ ‘uniqueness as an individual human being,’ ” Payne,
III.
{61} We next review the sufficiency of the evidence. In this portion of the opinion, we address Defendant’s arguments that there was insufficient evidence to support
A. Kidnapping
{62} Defendant claims that the evidence presented to the jury was insufficient to sustain either his conviction for kidnapping or his death sentence based on the aggravating circumstance of murder in the commission of a kidnapping. See § 31-20A-4(C) (“The death penalty shall not be imposed if: (1) the evidence does not support the finding of a statutory aggravating circumstance----”); Rojo,
1.Elements of Kidnapping
{63} Defendant was convicted of kidnapping in the first degree under the law in effect prior to the 1995 amendment of Section 30-4-1. See Foster,
1. The defendant took or confined or restrained [the victim] by force or deception;
2. The defendant intended to hold [the victim] for service against her will;
3. The defendant inflicted great bodily harm on [the victim];
4. This happened in New Mexico on or about the 7th day of February, 1994.
These jury instructions were patterned on UJI 14-404 NMRA 1996 (withdrawn 1997), which corresponds to the statute in effect prior to the 1995 amendment.
{64} The Court of Appeals has observed that “[t]he key to the restraint element in kidnapping is the point at which [the victim’s physical association with [the defendant was no longer voluntary.” State v.
{65} “Because an individual’s intent is seldom subject to proof by direct evidence, intent may be proved by circumstantial evidence.” Pisio,
{66} Based on Defendant’s statements, the physical evidence, and the expert testimony of the forensic pathologist, the jury also could reasonably infer that Defendant inflicted great bodily harm on the victim when he tied her up with the intent to further restrain her. Finally, the evidence of the victim’s disappearance on February 7, 1994, the evidence suggesting that the victim was killed on the date of her disappearance, and the evidence linking Defendant with the victim on that date provide substantial support for the jury’s finding regarding the timing of the crime. Thus, we conclude that the evidence was sufficient to support each of the elements of kidnapping in the first degree contained in the applicable versions of the kidnapping statute and jury instructions.
2. Whether the Kidnapping, Attempted CSP and Murder are Factually Distinct j
{67} We next address Defendant’s a/gument that there is insufficient evidence of kidnapping because the force used to accomplish the kidnapping was the same force used to accomplish or attempt the sexual penetration or the murder. The Court of Appeals has reversed a kidnapping conviction when there was no evidence of a kidnapping that was factually distinct from a murder or a sex offense. See Crain,
{68} In this case, there is sufficient evidence of a kidnapping that is factually distinct from the attempted CSP because strangling a victim with a rope in the manner described above is not the kind of force or restraint that is “necessarily involved in every
{69} There is also sufficient evidence of a kidnapping that is factually distinct from the murder because the jury could reasonably infer that all of the elements of the crime of kidnapping in the first degree were satisfied by the time Defendant “tied up” the victim in order to “make love to her.” Cf. Foster,
{70} Defendant has asserted that his convictions for kidnapping, attempted CSP, and first degree murder violate his right to be free from double jeopardy. We understand him to argue that, properly analyzed, his right to be free from double jeopardy precludes separate convictions for kidnapping, attempted CSP, and first degree murder. Under Swafford v. State,
{71} We acknowledge that double jeopardy principles may require reversal of a conviction when the jury instructions allow the jury to return a guilty verdict based on a legally inadequate alternative and the record contains no indication of whether or not the jury relied on that alternative. See Foster,
3. Elements of Murder in the Commission of Kidnapping
{72} We next review the evidence used to prove each element of the aggravating circumstance of murder in the commission of kidnapping. See § 31-20A-5(B). The trial court instructed the jury on the following elements of this aggravating circumstance:
1. The crime of kidnapping was committed;
2. [The victim] was murdered while defendant was committing the kidnapping;
3. The murder was committed with the intent to kill.
This jury instruction is patterned on UJI 14-7015 NMRA 1999.
{73} As noted in the committee commentary to UJI 14-7015 and in Henderson,
{74} It would be possible to read Henderson as holding that Section 31-20A-5(B) requires not only an intent to kill but also an intent to “kill[ ] in the commission of a kidnapping.”
{75} We conclude that the State presented sufficient evidence to prove the elements of the aggravating circumstance of murder in the commission of kidnapping. The fact that all of the elements of the crime of kidnapping were satisfied before the murder occurred does not preclude a finding that the victim was murdered in the commission of kidnapping because, in this case, the evidence substantially supports a finding that “the kidnapping continued throughout the course of [Defendant's other crimes and until the time of the victim’s death.” McGuire,
{76} Finally, we address Defendant’s reliance on the doctrine of fundamental error as it applies to the essential elements in the jury instructions. Defendant asserts that there is fundamental error in the trial court’s instructions to the jury regarding the aggravated circumstance of murder in the commission of a kidnapping because these instructions did not clearly inform the jury that it would have to find the kidnapping to be factually distinct from the attempted CSP and the murder. We disagree. Our past cases have applied the doctrine of fundamental error to the omission of a disputed essential element of an offense. See, e.g., Osborne,
{77} We review Defendant’s claim of instructional error to determine whether the instructions given were so ambiguous as to create fundamental error. “Fundamental error may be resorted to if the question of guilt ‘is so doubtful that it would shock the conscience to permit the conviction to stand.’ ” Osborne,
B. Murder of a Witness
{78} Defendant also contends that the evidence presented to the jury was insufficient to sustain the jury’s finding regarding the aggravating circumstance of murder of a witness. See § 31-20A-5(G). The trial court instructed the jury on the following elements of this aggravating circumstance:
1. [The victim] was a witness to a crime; and
2. [The victim] was murdered to prevent [her] from reporting the crime or crimes of Kidnapping and/or Attempted [CSP].
This jury instruction was patterned on UJI 14-7023 NMRA1999.
{79} We conclude that there, was sufficient evidence regarding each element of the aggravating circumstance of murder of a witness. In past cases, we have noted that the evidence used to support this aggravating circumstance may include the defendant’s statements to the effect that he or she could not let the victim go “ ‘because that would be the end for’” the defendant, Clark I,
■ {80} The State’s use of these types of evidence in the present case is consistent with our decisions in Clark I and Henderson. To meet its burden of proving that Defendant murdered a witness to a crime “for the purpose of preventing report of the crime or testimony in any criminal proceeding,” Section 31-20A-5(G), the State introduced statements that Defendant made to his wife (and which he acknowledged in the presence of other witnesses) to the effect that he had raped a girl and killed her to prevent her from reporting the rape. The State also introduced evidence that, Defendant had served a prison sentence for a prior conviction after a witness reported the crime in spite of Defendant’s threat to kill her for doing so, and that Defendant had attemptéd to avoid detection in the present case by disposing of the victim’s body in a remote location and cleaning the pickup in which he had abducted her. Finally, evidence was presented to show that Defendant did not know the victim prior to his commission of the crimes in question, and the State argued that the jury should infer from this evidence that there was no other plausible motive for the killing.
C. Mitigating Circumstances
{81} Although Defendant does not raise the issue in his brief, we conduct a mandatory statutory review of whether the evidence supports a finding that the mitigating
IV.
{82} Defendant asserts that the trial court’s rulings in the jury selection process violated his constitutional right to an impartial jury, see N.M. Const. art. II, § 14 (as amended 1994), and that the trial court unconstitutionally denied the right of some venire members to sit upon the jury on account of their religion, see N.M. Const. art. VII, § 3. Specifically, he asserts that the trial court improperly restricted the scope of voir dire, failed to excuse two members of the venire for cause even though they were predisposed to vote for the death penalty, and improperly excluded other members of the venire on the basis of their religious or cultural beliefs.
{83} In general, we review the trial court’s rulings regarding the selection of jurors for an abuse of discretion because “the trial court is in the best position to ‘assess a juror’s state of mind,’ based upon the juror’s demeanor and credibility.” Clark III, 1999— NMSC-035, ¶ 5,
{84} In death penalty cases, however, the trial court’s discretion is cabined by UJI 14-121 NMRA 1999, which creates “a procedural requirement” of posing questions to prospective jurors about their views of the death penalty. In order to prevent such questioning from “refiect[ing] on [the defendant’s] innocence or guilt in any way,” UJI 14-121 states that such questions should “not refer to this case specifically, but to [the prospective jurors’] views in general.” In accordance with this instruction, the trial court in this case would not allow defense counsel to refer prospective jurors specifically to “the case we are dealing with now.” At the same time, the trial court allowed counsel for both sides considerable latitude in asking generalized, hypothetical questions. We find no abuse of discretion in the trial court’s attempt to balance the need for such latitude against the necessity of complying with UJI 14-121.
{85} Based on its evaluation of the statements elicited from a prospective juror during voir dire, “[t]he trial court may properly exclude a juror for cause if the juror’s views would substantially impair the performance of the juror’s duties in accordance with the instructions and oath.” Clark III,
{86} For the same reasons that courts exclude prospective jurors who will automatically vote for the death penalty in every case, they also may exclude prospective jurors who will always vote against the death penalty. See Clark III,
V.
{87} Defendant’s next contention is that the trial court erred in refusing Defendant’s requested jury instructions on the lesser included offenses of involuntary manslaughter and false imprisonment. “ ‘Instructions on lesser included offenses should only be given when there is evidence that the lesser offense is the highest degree of the crime committed.’ ” State v. McGruder,
{88} Defendant asserts that the jury might have determined that involuntary manslaughter, not second degree murder, was the highest degree of homicide committed in this case based on the theory that the victim’s death was an accidental consequence of Defendant’s placement of the rope around the her neck. This “theory is not a reasonable view of the evidence.” Pisio,
{89} With respect to his kidnapping conviction, Defendant asserts that the jury might have determined that the highest degree of the crime committed was false imprisonment based on a theory that the victim was unlawfully restrained but not held for service. See State v. Fish,
YI.
{90} Defendant asserts that, if we assume his convictions were based on non-unitary conduct, the trial court erred in running Defendant’s sentences for attempted CSP and kidnapping concurrently instead of consecutively. According to Defendant, both the State and the trial court erroneously viewed concurrent sentencing as a cure for a double jeopardy violation and erroneously applied the common law doctrine of merger. See State v. Meadors,
{91} Apart from double jeopardy considerations, “whether multiple sentences for multiple offenses run concurrently or consecutively is a matter resting in the sound discretion of the trial court.” State v. Padilla,
{92} Defendant asserts, however, that the trial court’s decision to issue concurrent sentences for kidnapping and attempted CSP has additional significance in this case because running these sentences concurrently weakened his argument against the death
{93} Defendant asserts that the concurrent sentences for the crimes of kidnapping and CSP improperly influenced the jury’s decision to impose the death penalty for the crime of murder. Our decision in Clark II,
VII.
{94} Defendant contends that some of the prosecutor’s remarks during jury selection, opening statements, and closing arguments constituted misconduct that deprived Defendant of a fair trial. In discussing the trial court’s evidentiary rulings, we have addressed Defendant’s claims that the prosecutor erred by commenting on Defendant’s silence, impugning the integrity of his trial counsel, insinuating that the inmate witnesses who testified against him were in danger, and comparing his case to other cases with respect to the quantity of such witnesses. We now address Defendant’s additional challenges to the prosecutor’s statements that allegedly suggested to jurors that they were not responsible for their decision, gave personal opinions vouching for the strength of the State’s case and the appropriateness of the death sentence, alluded to incriminating evidence that was not in the record, argued that lack of remorse or the failure to show other mitigating evidence was an additional aggravating circumstance, and suggested that the jury should return its verdict based on improper considerations such as the community’s grief and outrage, the need to protect the community, and the jurors’ concerns as parents.
{95} When an issue of prosecutorial misconduct is preserved by a timely objection at trial, we review the trial court’s ruling on a claim under the deferential standard of “abuse of discretion,” State v. Stills,
{96} We review each of Defendant’s allegations of prosecutorial misconduct individually in addition to considering their cumulative effect. We conclude, however, that the alleged instances of prosecutorial misconduct in this case do not rise to the level of fundamental error regardless of whether they are considered individually or cumulatively.
A. The Jury’s Responsibility for its Verdict
{97} Defendant claims that the prosecutor’s closing, argument improperly suggested to jurors that they were not responsible for their decision to impose the death penalty. The prosecutor stated, “I’m not going to wink at you and suggest, oh, well, they never kill anybody, never have executed anybody in New Mexico.” See Caldwell v. Mississippi,
{98} Although we acknowledge that the prospect of reversal on appeal is not a proper consideration for a jury, see Caldwell,
{99} Defendant claims that, during jury selection, the prosecutor improperly vouched for the strength of the State’s case and the appropriateness of the death sentence by telling the venire, in excessive detail, about his personal experience with the death penalty, and by mentioning that the police and the district attorney’s office “obviously” thought Defendant was guilty. Defendant claims that the improper vouching continued during closing argument when the prosecutor stated his view that “the death penalty is a moral verdict in this ease.”
{100} We do not agree with Defendant that he was unfairly prejudiced by the prosecutor’s statement during closing argument regarding the morality of the death penalty. The trial court promptly sustained Defendant’s objection to that statement. As in McGuire,
{101} With respect to jury selection, we note that Defendant failed to object to many of the prosecutor’s remarks that he now challenges on appeal. Further, we do not believe that the remarks were unfairly prejudicial when viewed in their proper context. Both parties were faced with the difficult task of getting prospective jurors to share them highly personal views about the death penalty during voir dire. Viewed in this context, the prosecutor’s brief allusions to his own personal experience with the death penalty only served as a means of facilitating candid responses from the venire. The prosecutor also tried to facilitate such responses by repeatedly emphasizing that his own views were unimportant, that he was not trying to persuade jurors one way or the other, and that there was no right or wrong-answer to his questions about the death penalty. The trial court has considerable discretion in controlling the jury selection process, see Clark III,
{102} We also conclude that the prosecutor did not deprive Defendant of a fair trial when he stated that “obviously” the police and the district attorney’s office thought Defendant was guilty. While we agree with the general rule that it is improper for prosecutors to vouch for their cases, see generally Gershman, supra, § 10.5, we are not persuaded that the prosecutor’s remarks in this case, when taken in context, were the kind of vouching that is prejudicial enough to deprive Defendant of a fair trial. We note that the remarks were made during voir dire as the prosecutor inquired whether prospective jurors could presume Defendant’s innocence even though they knew that Defendant had been charged with several crimes. Cf. State v. Polsky,
{103} Defendant contends that the prosecutor’s closing argument in this case alluded to evidence not in the record, and that these allusions unfairly appealed to the jurors’ personal fears and denigrated the criminal justice system. See Gershman, supra, § 10.6 (discussing reference to matters qutside the record as a form of prosecutorial misconduct). Defendant points to the prosecutor’s remarks during closing argument that “we’re limited to that evidence which is admissible to ask for a conviction,” and that “because we cherish our individual liberties so, we’ve been willing to make a societal tradeoff ... that ... results, often times, in dangerous people going free when they really did something and perhaps killing again.” Defendant also asserts that the prosecutor referred to evidence not in the record when he predicted in his opening statement that the State was going to present evidence that Defendant’s own mother-in-law thought he was guilty or capable of killing the victim. Defendant’s mother-in-law never provided such testimony during the trial.
{104} We agree with Defendant that it is improper for the prosecution to refer the jury to matters outside the record or to make certain kinds of “law and order” appeals. See Gershman, supra, §§ 10.2(a), 10.6. Viewing the prosecutor’s statements in context, however, we do not find that they deprived Defendant of a fair trial in this case. In particular, the prosecutor’s statements did not imply that any specific evidence was being concealed from the jury, or that there was anything about Defendant or his crimes that the prosecutor wanted to divulge but could not. Absent such implications, it is more logical to construe the prosecutor’s remarks as merely repeating, with emphasis, the trial court’s instructions regarding the State’s burden of proof and the requirement that jurors disregard evidence that is the subject of a sustained objection. See UJI 14-101, -102 NMRA 1999; Gonzales,
{105} Further, while it was a mistake for the prosecutor to predict that a particular piece of evidence would be presented to the jury when in fact it was not, in this case “[t]here is nothing indicating bad faith on the part of the prosecutor in referring to the witness in [the prosecutor’s] opening statement.” State v. Fuentes,
{106} Finally, we do not find that Defendant was deprived of a fair trial by the prosecutor’s statements about a “societal trade-off’ in which dangerous people may go free in order to protect cherished individual liberties. Viewed in context, we do not believe these comments suggested to the jury that they should ignore their responsibility to apply the law. Rather, the prosecutor’s comments appear as a rebuttal of defense counsel’s closing argument. Defense counsel had told the jurors that they were “protectors of all of us” and that “the Constitution ... says that innocent people [are not to] be convicted for things they didn’t do.” The prosecutor’s response to this argument acknowledged the importance of such constitutional principles but maintained that it was unnecessary for the jury to find Defendant not guilty in’ order to protect these principles because the evidence admitted at trial was enough to prove Defendant’s guilt beyond a reasonable doubt. Under these circumstances, the prosecutor’s comments during, rebuttal were invited. See Clark III,
C. Lack of Mitigating Circumstances
{107} Section 31-20A-5 of the CFSA limits the types of aggravating circumstances that a jury may consider in a capital felony sentencing proceeding. A defendant’s failure to show any mitigating circumstances, in and of itself, is not an aggravating circumstance under the CFSA. In this case, Defendant asserts that the prosecutor violated Section 31-20A-5 by arguing to the jury that Defendant’s lack of remorse and his failure to show
{108} Sections 31-20A-2 and 31-20A-6 allow the defendant in a capital felony sentencing proceeding to present mitigating circumstances for the jury’s consideration in deciding whether to impose a death sentence. In this case, Defendant’s mitigating evidence included a brief allocution in which he expressed remorse for the killing, and the trial court instructed the jury, at Defendant’s request, that it must consider Defendant’s “age; any remorse of the [Defendant; the circumstances of the offense which are mitigating, and anything else which would lead you to believe that the death penalty should not be imposed.” Once Defendant asserted mitigating circumstances, the prosecutor was entitled to offer a rebuttal concerning that issue. See Clark III,
D. Other Improper Considerations
{109} Defendant contends that it was misconduct for the prosecutor to argue that the jury should return its verdict based on improper considerations such as “community outrage,” society’s right to grieve, the fact that “this is the stuff that we, as parents, fear for our children,” and the need for “a stern message from you that this conduct won’t be tolerated.” The prosecutor made these remarks during his rebuttal of Defendant’s closing argument in the penalty phase of the trial. Defendant’s closing argument had a religious theme, with remarks about leaving Defendant’s life “in God’s hands” because “a long time ago, a man died on a cross [and] His final words about His killers were words of forgiveness.” After a brief bench conference that followed the prosecutor’s rebuttal, the trial court gave the jurors the following limiting instruction:
Any suggestion that you as a jury have some obligation to express a particular opinion on a case through your verdict, or to carry any kind of message through your verdict, is totally inappropriate. This ease must be decided upon the facts that you have before you in this court, and not on any ... play upon your desire to please a public or to carry out any particular aim of ... society. Deal with this case on its facts in the manner in which I’ve instructed you, putting aside your bias and prejudices, and deciding the case solely upon what you’ve heard.
Shortly after this instruction was given, the jury retired to deliberate.
{110} We agree with the trial court that the closing arguments quoted above were improper inasmuch as they attempted to persuade the jury to reach a verdict based on biases or prejudices to which the jurors may have been susceptible because of their experiences as parents or members of a particular community or religion. See UJI 14-101. We admonish trial counsel for both sides to confine their remarks to arguments based on the evidence presented in the cases before them. We conclude, however, that the trial court’s “curative instruction was sufficient to offset any prejudicial effect due to the [lawyers’] erroneous statement[s].” State v. Sellers,
VIII.
{111} Defendant asserts that proportionality review under Section 31-20A-4(C)(4)
{112} In addition to challenging the constitutionality of our proportionality review under the CFSA, Defendant argues that the CFSA is unconstitutional in several other respects. All of Defendant’s arguments were addressed in Clark III. Therefore we reject Defendant’s arguments: (1) that the CFSA fails to give the jury proper guidance about how to weigh aggravating circumstances against mitigating circumstances, see Clark III,
IX.
{113} Defendant contends that this Court cannot perform a meaningful appellate review of his case because the parties’ communications with the trial court during certain bench conferences cannot be heard on the audio tapes that were used to record the trial. We do not agree. While it is true that some of the bench conferences may have been inaudible or off the record, the trial court was careful to ensure that its rulings were stated on the record in an audible manner and to provide the parties with an opportunity to record their objections in a similar manner. Further, as in Clark III,
{114} Defendant also contends that his trial counsel rendered ineffective assistance by failing to make timely objections regarding jury selection or the admission of evidence and argument at trial. To prevail on this claim, Defendant “must prove that defense counsel did not exercise the skill of a reasonably competent attorney and that this incompetent representation prejudiced the defendant’s case, rendering the trial court’s results unreliable.” State v. Lopez,
{115} On the question whether Defendant’s trial counsel exercised the skill of a reasonably competent attorney, the record on appeal shows that counsel objected to the prosecution’s evidence and argument frequently and effectively throughout the trial. “Failure to object to every instance of objectionable evidence [or argument] does not render counsel ineffective; rather, failure to object ‘falls within the ambit of trial tactics.’ ” State v. Martinez,
{116} Further, inasmuch as we already have concluded that Defendant was not unfairly prejudiced by the selection of the jury, the admission of evidence, or the prosecutor’s remarks at issue here, Defendant has not shown the degree of prejudice required for a prima facie case of ineffective assistance of counsel. Cf. Lopez,
{117} Finally, we address Defendant’s claim that he was denied a fair trial. We have noted on several occasions that a fair trial is not necessarily a perfect trial. See, e.g., Moore,
X.
{118} There was sufficient evidence to support Defendant’s convictions and sentence. The trial court did not err in selecting or instructing the jury or in sentencing Defendant. No other claim of error supports reversal. We therefore affirm Defendant’s sentence and his convictions for first degree murder, kidnapping, and attempted CSP.
{119} IT IS SO ORDERED.
Notes
. Although we recognize that some mention of the victim’s 'name was unavoidable at trial, we do not refer to the victim by name in this opinion for two reasons. First, the constitution and laws of New Mexico require that we respect "the victim’s dignity and privacy throughout the criminal justice process.” N.M. Const. art. II, § 24(A)(1); accord NMSA 1978, § 31-26-4(A) (1995, prior to 1999 amendment). Second, we note that at the time of her death the victim was still a child within the meaning of the Children’s Code, see NMSA 1978, § 32A-1-4(B) (1999), and state law affords a reasonable degree of confidentiality in abuse and neglect cases, see NMSA 1978, § 32A-4-33 (1993); see also NMSA 1978, § 32A-1-17(A) (1995, prior to 1999 amendment).
. Because we conclude that the trial court did not abuse its discretion in denying Defendant's motions, it is not necessary for us to reach the question whether Defendant was prejudiced by his use of two peremptory challenges to exclude these two prospective jurors after his motions were denied.
Concurrence Opinion
(Special Concurrence and Partial Dissent).
{120} I specially concur in the Court’s opinion affirming the convictions of the defendant. I dissent from Section 11(H) regarding “Victim Impact Evidence.”
{121} My concurrence in most of the majority’s opinion is special because of my strong personal and philosophical opposition to the death penalty and my strong personal belief that it is based upon a seriously flawed public policy. The reasons I have expressed for my special concurrence in Clark are unchanged.
I. EX POST FACTO
{123} As the majority acknowledges, this defendant was arrested for his crimes in 1994 before the effective date of New Mexico’s victim’s right laws. See N.M. Const. art. II, § 24(C) (1992) (requiring implementing legislation before Victim’s Rights Amendment became effective). A defendant must be given the benefits, as well as suffer the detriments, of the law as it existed and to which he is subject at the time of the offense. The effective date of relevant implementing legislation was January 1, 1995. See 1994 N.M.Laws, ch. 144, § 16 (implementing Victims of Crime Act, NMSA 1978, §§ 31-26-1 to -144 (1994, prior to 1997 amendment)). The majority seems to hold that this defendant should be subject to the full punishment provided by the law, as they hold it now exists, rather than by the law that was applicable when he committed the crime.
{124} I strongly disagree. The New Mexico Constitution provides that, “[n]o act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case.” N.M. Const. art. IV, § 34 (as amended 1960). In 1995 the legislation that implemented the Victim’s Rights Amendment changed the rules of evidence and procedure in the penalty phase of this case while this case was pending. To now affirm the admission of victim impact evidence under Section 31-26-4(G) is a direct violation of Article IV, Section 34, of our Constitution.
{125} Moreover, the admission of victims’ statements to the penalty phase of a murder trial operates to the disadvantage of the defendant. This violates our constitutional prohibitions against ex post facto laws. Article II, Section 19, of our Constitution states, “No ex post facto law ... shall be enacted by the legislature.” See also U.S. Const. art. I, § 10 (same prohibition). The Latin phrase “ex post facto” implicates in its literal meaning any law passed “after the fact.” However, courts have recognized “that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.” Collins v. Youngblood,
{126} Thus, while Allen’s case was pending, the Legislature passed, ex post facto, Section 31-26-4(G), permitting victims to make statements at sentencing. These statutes introduced procedural and evidentiary disadvantages that Allen did not face in 1994 at the time the crime was committed. I strongly believe the application of those statutes to this case violates Article II, Section 19, and Article IV, Section 34, of our Constitution.
II. TESTIMONY IN A DEATH PENALTY CASE
A. The Capital Felony Sentencing Act
{127} More important, it is my opinion that victim impact testimony in a death penalty case is not allowed under New Mexico law as it now exists or as it existed in 1994.
{128} NMSA 1978, § 31-20A-2(A) (1979) of the Capital Felony Sentencing Act provides that:
A. Capital sentencing deliberations shall be guided by the following considerations:
(1) whether aggravating circumstances exist as enumerated in Section 6 [31-20A-5 NMSA 1978] of this act; and
(2) whether mitigating circumstances exist as enumerated in Section 7 [31-201A-6 NMSA 1978] of this act; and
(3) whether other mitigating circumstances exist.
{129} The Act enumerates specific factors that are mitigating, and then expressly states that the enumerated list is not exclusive. It also enumerates specific factors that are aggravating and, unlike the list of mitigating circumstances, that list is exclusive.
{130} The Act is careful to cabin the jury’s analysis of these factors:
After weighing the aggravating circumstances and the mitigating circumstances,weighing them against each other, and considering both the defendant and the crime, the jury or judge shall determine whether the defendant should be sentenced to death or life imprisonment.
Section 31-20A-2(B).
{131} The Act does not require that the jury weigh the aggravating and mitigating circumstances in the abstract; it directs the jury to perform the weighing in the context of both the defendant and the crime. It does not, however, allow the jury to pick additional features of the crime, or facts about the defendant, and weigh them in the balance as additional aggravating factors. Of course, to the extent that the crime or the defendant may present mitigating features, they would be free to weigh those in the balance. The State argues to the contrary when it says that “the defendant’s character and past criminal history are highly relevant and important evidence” in a capital sentencing hearing. However true this might be, if this Court were writing on a blank slate, it is clearly not what the Legislature envisioned when it crafted the Capital Felony Sentencing Act.
{132} The Act enumerates that “the defendant has no significant history of prior criminal activity” as a mitigating circumstance. NMSA 1978, § 31-20A-6(A) (1979). Conspicuously, however, a “significant” history of prior criminal history is not an aggravating circumstance. See NMSA 1978, § 31-10A-5 (1981) (setting out aggravating circumstances). This creates an asymmetry which the State seeks to redress by claiming that prior crimes of the defendant are “relevant” to the jury’s sentencing decision, and that they are admissible in light of the requirement in Section 31-20A-2(B) to consider “both the defendant and the crime.”
{133} The problem with the State’s argument is that while a legislature might determine that a defendant’s prior criminal history is a proper reason, in some circumstances at least, to impose the death penalty, in New Mexico our Legislature has not done so. In contrast, the California Penal Code states, “In the proceedings on the question of [capital] penalty, evidence may be presented ... as to ... any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence____” Cal.Penal Code § 190.3 (West 1999).
{134} It should be noted that even though the Legislature has had several opportunities to amend the Capital Felony Sentencing Act after our Victim’s Rights Amendment was passed and put into effect in January of 1995, it has not done so. The conclusion I reach, therefore, is that the Victim’s Rights Amendment and Act apply to traditional sentencing proceedings, but not death penalty proceedings. The sentence of death is substantially different in that it is final, requiring a specifically tailored scheme. I note that the United States Supreme Court in Payne v. Tennessee,
{136} The State recognizes the power of victim impact evidence. That is precisely why it fights so hard to introduce it. It is unquestionably powerful emotional evidence that appeals to the sympathies or emotions of the jurors. But the “[e]vidence that serves no purpose other than to appeal to the sympathies or emotions of the jurors has never been considered admissible.” Payne,
B. The purpose of the Capital Felony Sentencing Act is to objectively channel the jury’s determination, not to open death penalty determinations to an emotional free-for-all
{137} Death penalty sentencing statutes that do not meaningfully and objectively channel the jury’s determination are unconstitutional. Zant,
{138} When highly emotional evidence from bereaved family members is introduced, there is a danger that verdicts become arbitrary and improperly based on passion. A number of state courts have recognized that their statutes do not authorize the admission of victim impact evidence, or that such evidence is not relevant, and should not be a part of rational scheme to channel a jury’s sentencing decision. See generally State v. Atwood,
{139} These cases are consistent with the Payne majority’s holding that the question of whether to admit victim impact evidence is for states to decide. Payne does not hold that states must admit such evidence. “We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence,
C. Prejudice in this Case
{140} In my view, and contrary to the majority opinion, the victim impact evidence in this case was excessive and warrants a new sentencing .hearing even under the Payne standard. Portions of the victim impact testimony, which, in my opinion, far exceeded the limited testimony tolerable under Payne, follow:
{141} A friend of the Phillips family, Laci Minor, described the family’s efforts to find the missing girl. She related that Darlene Phillips called her the evening that her daughter disappeared, and that, after a sleepless night, she helped Ms. Phillips talk to the police the next day. She described putting up posters as far away as Flagstaff, Prescott, Holbrook, and Phoenix. The prosecutor asked her:
Q: Okay, and how were those — those six weeks of waiting?
A: They were horrible. We — it was just horrible not knowing if she was okay or where she was. Every time the phone rang, we jumped. We — we hoped that she would call or that somebody would call. Darlene tried to follow every lead that she possibly could. She — she talked to people every day. If she had to call them, if she had to go out on the street and would walk around and just talk to people, and carry a picture around and say, “Have you seen this girl?” At one point her and Billy went to' Colorado and talked to a psychic. We— we — we lived every day. We got up every day and we went to work. We slept. But it wasn’t a life, for six weeks.
{142} The State ended by eliciting, in considerable detail, Darlene Phillip’s reaction to the news of her daughter’s death. Ms. Minor received an emergency phone call at work, telling her to meet the Sheriff at the Phillips’ house in 15 minutes. Deputy Cheverie told her, “Now, you have to go in and tell Darlene.”
Q: You were standing with [Deputy] Jim Cheverie outside the house?
A: Yes, sir. And I started walking to the house, and I got about halfway there and I just stopped and I — I said, I can’t. I’m— cannot go in and tell her that her daughter is dead. I cannot do that. So he said he would do it. We went into the house. Darlene had an appointment with Mr. Cheverie at the time, so she didn’t think it was strange that he was there, and she thought that I was there for support because she — because she was going to talk to him and I could have my input. So it wasn’t strange to her that we showed up. We walked in, and she greeted us — her and Bill greeted us, and — and we are smiling and — and instantly she kind of looked at me, and she said “What? What is wrong?” And so Mr. Cheverie told her that they had found Sandra’s body.
Q: How did Darlene react?
A: Probably like any mother would react whenever somebody tells them that their daughter’s body has been found. She—
Q: What did she do to Deputy Cheverie?
A: She started hitting him in the chest, and she started asking him why and who and then she went outside. Darlene ran outside.
Q: Did you follow her?
A: Yes, sir, I did. My sister stayed in the house with Bill, and Mr. Cheverie and I went outside with’ Darlene. And she was — she was running around the driveway, and she was crying. And I would try to — I would try to hug her and touch her, and she would tell me no. And she was yelling and screaming, and the neighbors started coming out of their houses. And I finally got her to go back inside. And she went into the house and she picked up the cordless phone, and handed it to me. And she said, “Now, you have to call Steven [Sandra Phillip’s brother] and tell him that his sister is dead.” So I took the phone outside and I called Steve, and I’m sure that he knew something was wrong instantly when he picked up the phone, because I said, “Steve, this is Laci Minor.” And he said, “What’s wrong?” And I said, “I think you’d better get a plane ticket and get here because Sandy’s been found andshe’s dead. And we need you.” And I hung up the phone with him and I just started — I called Darlene’s best friend, Carol Williams, and I asked her to please come as soon as she could because we needed her. I called my parents. I called as many people as I could think of just so that they could help me take care of Darlene and Bill. And then I — we started calling the relatives in Phoenix, and we started — I started making travel arrangements so we could get everybody here. And my sister and I went and got beds and pillows and blankets. My parents and the Williams they went to Sam’s Club and bought food for everybody who was coming. We — the community instantly started bringing things — blankets, beds, tables, food. And later that night I went to the airport and picked up Steve and his grandma and grandpa and his aunt, who had flown in from Phoenix. And I took them home. And instantly Steve got out of the car1 before I even had the car stopped. He was jumping out and he just — he ran in the house, and he grabbed his mom. And we had a — an entire week like that.
Q: How has it been, since the funeral, for Steve?
A: Steve is not a man of open emotions. He’s certainly not going to sit around and tell people how he feels or what he’s gone through since this has happened to him because no matter what has happened to him, and no matter what he feels, it can’t compare to what — what his sister went through on February 7th.
Q: Steve feels like he’s responsible in any way?
A: He feels extremely guilty. The guilt that he feels has almost destroyed him because he’s the one who went to the restaurant and picked up his sister. He was going to bring her home to his mom. And he feels like if he would have never picked her up, she would still be in Phoenix and she’d still be alive. And he feels anger that anybody could possibly do this to his baby sister. Not only did he take away a sister and daughter. He took away grandbabies that Sandy would have given Darlene. He took away an aunt to my children and — and cousins. And I also feel like he took away a very wonderful person who would have been a care giver to our community, who would have given back. She would have been a nurse, she would have been a good nurse, and she would have been taking care of people.
Q: How has Darlene been since the time — since the funeral?
A: Darlene is on a constant roller coaster of emotions. Darlene’s a care giver and she has been for a long time and she is unable, for the first time in her whole life, to care for somebody, who’s herself. Every day she goes to the hospital and she takes care of people who are dying, but she’s dying inside and she can’t take care of herself. Every day people talk about the cures for diseases that they’re trying to find, well I wonder what about the cure for our hearts and our souls and our — the holes that have been put there, and the loss that we suffer. What about a cure for that? How is Darlene supposed to take care of herself now? And take care of other people. She — she kept Darlene’s— excuse me, she kept Sandy’s room exactly how she left it, for the longest time, because she would tell me, Sandy’s going to come home and I want her room to be just like she left it when she comes home.
Q: Is that after the funeral?
A: Yes, sir.
Q: How long did she — did she keep Sandy’s room the way it was?
A: I would say until late summer of this year.
STATE: I have nothing further, Your Honor.
{143} Ms. Minor had also described her friendship with Sandra Phillips, based on their mutual love of cheerleading and animals. She described Sandy’s love of her pet iguana. She described Sandy’s plan for the future:
[S]he discussed with me how she also wanted to be like her mom, and she wanted to be a nurse. So we got really excited because we had this whole plan worked out where we could go to nursing school together and we could take the classes togetherand we could study together. I mean, it sounds kind of silly, but we were being girls and discussing how neat it would be to hang out together.
{144} In his rebuttal closing at the penalty phase, the prosecutor ended his (rather short) argument with:
This is the stuff that leaves parents in fear for our children and tell them, “Don’t take rides from strangers; don’t accept candy from strangers.” The story of Sandra Phillips is the stuff that we can tell our children or our grandchildren because it is the agony and the horror of every parent.
He talked about Darlene’s anguish:
You saw Darlene as she watched that video, and you must have been watching her facial expressions. And you heard her, when she first testified she ... It was just natural. She stared off into space. God, I miss her. You heard from Laurie — Laci, I’m sorry, what they suffered, and the horror. Darlene going on, beating on Jim Cheverie’s chest; then running around the yard until the neighbors came out. The grieving process is natural to any tragedy especially when young people are involved. Society, I submit to you, has the right to grieve also. I don’t expect of you, nor should I ask of you, to feel what Sandra Phillips felt before she died, that terror; or what the Phillips family suffered after her death. But society has a right to grieve. It has a right to mourn. And it has a right to grieve and mourn by its verdict in this particular case. You have the right to express your indignation of this awful act by your verdict. There’s nothing wrong with the carefully considered expression of community outrage. Indeed, community/society outrage in this case is so, so appropriate. Because that precious thing you saw in that video and that light in her eye can never be replaced. No, but a verdict of death will replace that. Nothing will bring Sandra back; but there is still justice, a verdict of guilty.
{145} Just reading the emotional testimony of Laci Minor is painful. The effect on the jury, who was present in the room when she spoke, is incalculable. The jury was not just a passive observer, it was being asked to do something about the family’s pain: to return a death verdict. In my view, by the terms of the New Mexico Capital Sentencing Act, this inflammatory and emotionally compelling testimony was not admissible. See N.M. Const. art. II, §§ 13, 14, 18; U.S. Const. amends. V, VIII, XIV.
{146} The State’s victim impact evidence was more than a passing glimpse of the victim’s life and the sorrow of survivor. A “dramatic appeal to gut emotion has no place in the courtroom.” Hance v. Zant,
{147} The majority holding otherwise, I respectfully dissent from Section 11(H) of the majority opinion.