State v. Allen

Finally, request we determine that Petition Granting Petitioners’ Constitution. gain recognition right their III, attempt 1 in ers’ Section one of Article would violate collectively organize bargain under by judicially overriding the ways: two either (1959) II, bills, 1978, § 50-2-1 or Article appropriation NMSA veto of three Governor’s 4 and of the New Mexico Consti Legislature’s role in en- Sections by usurping the not meet the criteria for an exer explain. tution does acting legislation. new We jurisdiction by original mandamus cise of 10-7D-18(A)(8) provides of PEBA Section ex rel. Sandel v. New this Court. See State by agreement has been reached no “[i]f Comm’n, Pub. 1999-NMSC- Mexico Util. prior to December the unre- parties ¶ 11, 980 P.2d 55. There through be resolved solved issues will fore, grant requested relief we decline to case, process.” appropriation statutory provi or constitutional under these Legislature placed language regarding the sions. Agreement of the term of the State extension appropriation PEBA into three pursuant those Governor vetoed all of bills.

bills. The majority Legislature has A two-thirds vetoes, not voted to override the Governor’s 1,1999. July expires PEBA 2000-NMSC-002 IV, 16 of the New Article Section 994 P.2d 728 states, part, in relevant Mexico Constitution Mexico, New STATE of embracing than one more sub “no bill Plaintiff-Appellee, ject except general appropri passed be shall bills,” “[gjeneral appropriation bills ation nothing appropriations.” shall embrace but Timothy ALLEN, Defendant- C. Thus, language appropriation bills Appellant. concerning the extension of the term of the void Agreement pursuant to PEBA is State 23,493. No. (1) grounds: the term of the on either of two Supreme Court of New Mexico. Agreement PEBA does not fall State under meaning “appropriation,” or within the of an 1, 1999. Dec. (2) language regarding the term of the Rehearing Denied Jan. Agreement PEBA makes the bill under subject. than one embrace more

Further, IV, 22 of the New Article Section provides, pertinent Mexico Constitution by part, “[ejvery passed [Legis- bill shall, law,, before it becomes a be lature [Gjovernor approval.” presented to the presented a bill When the Governor vetoes him, a law unless there- it “shall not become approved

after two-thirds of members present voting in house.” Id. each

Thus, passed by appropriation bills three Legislature could not become law before Governor,

they presented nor law after the Governor’s could become approval a two-thirds ma- vetoes without jority Legislature. This Court cannot vetoes, nor can the

override the Governor’s Legislature in usurp Court the role of the enacting legislation. new

485

487 Subin, Defender,

Phyllis H. Public Chief O’Connell, Appellate Will Assistant Defend- er, Fe, Appellant. Santa for Madrid, General, Attorney A. M. Patricia Wilson, General, Attorney Assistant Victoria Fe, Appellee. Santa OPINION

MINZNER, Chief Justice. appeals his death sentence

pursuant Capital Felony Sentencing (CFSA), 1978, §§ Act NMSA 31-20A-1 to -6 1991). (1979, through as amended He also appeals degree mur his convictions of first 1978, § der violation of NMSA 30-2- 1(A)(1) (1994), degree kidnapping in vio first (1973, prior lation of 30-4-1 NMSA would, amendment), evening attempted criminal in the as she had said she her to 1995 (CSP) concerned, penetration police violation called the sexual mother became (1963) 1978, § and NMSA report daughter’s 30-28-1 absence and went NMSA her 30-9-11(0 (1993, prior § to 1995 looking daughter at for her the restaurant amendment). appeal, Defendant chal On convenience in Flora and the store Vista. lenges and his death sentence his convictions later, on March Six weeks (1) prosecutorial miscon grounds: on ten shepherd partially found the victim’s decom- (2) duct; aggravating evidence of insufficient remote, posed body hilly a tree in a beside (3) circumstances; selecting errors in approximately area three-and-one-half miles (4) jury; refusing lesser- errors submit Investigators of Flora who ob- north Vista. (5) instructions; insufficient included-offense testified that a denim coat served scene support kidnapping convic evidence to body draped part was over the lower (6) tion; disproportionality of the death sen they when arrived. The victim’s mother tes- penalty imposed tence this case to daughter tified that she had instructed her (7) cases; making other error the sen disap- day wear the denim coat on the she kidnapping attempted tences for CSP peared. belonged The coat to the victim’s (8) concurrent; unconstitutionality mother. The coat contained blood stains (9) CPSA; adequate of an record on lack that were consistent with the victim’s blood. (10) appeal; and cumulative error. We re judgment view Defendant’s of conviction and coat, investigators When lifted pursuant sentence of death to Section 31- they observed that the victim’s shirt was 20A-4(A). affirm Defendant’s convic We bra, pulled up lace-up over her of her one tions and his sentence. None of the statuto removed, pants boots had been and her ry grounds reversing for a death sentence pulled off one of her underwear had been case, present are in this and Defendant’s sanitary legs. napkin of a ad- remains other claims are without merit. moth- hered to her underwear. The victim’s daughter testified that her started her er I. day period menstrual on the before she dis- The victim of Defendant’s crimes was appeared. years seventeen old.1 She resided with her investigator A medical who observed Vista, mother Flora New Mexico. Ac- near pathologist a forensic the crime scene and testimony, cording to her mother’s she called performed autopsy on the victim’s who February p.m. home at about 12:40 on from body testified that the condition of the vic- 1994; going into she stated that she was clothing with a sexual tim’s was consistent jobs apply later town to and would return addition, pathologist the forensic assault. day in the to vacuum. between Sometime bruising evidence of on the victim’s found date, p.m. she was noon and 1:30 seen struggle legs may have indicated a dur- walking along a road toward convenience ing Defendant’s mother-in- a sexual assault. slightly store in Flora Vista that was less that she observed a scratch on law testified than one mile from her mother’s residence. lip on his around the his face and bruise testified that saw her Several witnesses disappeared. that the victim The foren- time According to in Flora Vista that afternoon. decomposi- witnesses, pathologist testified that the sic paid she her mother’s water these body may prevented tion of the victim’s have bill at the office of the Flora Vista Water discovery further evidence of a sexual applied job Association and for a Users struggle with an assailant. she did not return home assault or restaurant. When Second, amendment). (1995, recognize prior we Although to 1999 that some mention of trial, that at time of her death the victim was we do note the victim’s 'name unavoidable meaning opinion of the Children’s name in still a child within not refer to the victim Code, 1978, 32A-1-4(B) (1999), First, § see NMSA for two the constitution and laws reasons. degree of confi- require respect state law a reasonable of New Mexico that we "the affords cases, dentiality neglect NMSA dignity privacy throughout in abuse and see the crim victim’s (1993); II, § see also NMSA justice process.” art. 32A-4-33 inal N.M. Const. amendment). 31-26-4(A) 32A-1-17(A) (1995, 24(A)(1); prior § § to 1999 accord NMSA pathologist strap hair Both the forensic and the with the victim’s under a seat-belt {6} investigator day purchased that the cause he it. medical testified on He threw They ligature strangulation. away looking of death was hairs after at them because he rope wrapped a had been they observed that did not know that of a evidence crime, neck four times. tightly investigators around victim’s and found no additional rope contained two knots: one after the pickup The hairs when searched the in Janu- neck, loop around the victim’s and an- third ary investigators 1995. After returned the loop. however, other the fourth The victim’s red after pickup, the owner found more tangled rope. in the The hair had become strands of red hair when he a removed bro- rope pathologist concluded that the forensic ken handle that was used to roll window probably cut off the circulation of blood to down. Other witnesses testified that brain, probably it the victim’s that took be- window handle was not broken when Defen- thirty seconds and one minute for the tween pickup January in dant first borrowed the to the victim to con- strangulation cause lose sciousness, probably that it took several Defendant made several statements {10} strangulation minutes of to cause the victim’s both before and after his arrest. On Febru- body on of the death. Based the condition ary meeting off-duty while with an discovered, the time it was the medical inves- deputy deputy’s spouse sheriffs tigator probably that the victim died testified matter, an unrelated Defendant stated that day disappeared, al- on the same that she waiting for a he was friend at the conve- though pinpoint could not an exact time of he nience store in Flora Vista on of the the date death. disappearance, victim’s and that he had seen investigator The medical also testified walking going couple her into of build- suggest- crime that the condition of the scene ings meeting, at that time. At a later both victim killed ed that the had been elsewhere spouse deputy and his saw the victim’s body in placed before her was the location page in ink name written red on a of Defen- it on March 21. There where was discovered daily planner corresponded dant’s that to the print was a boot the soil beneath the disappearance. date the victim’s The body. presented victim’s State daily presented planner to the wit- suggest print that the killer left the boot trial, pages nesses at and both noted that the body when he carried the victim’s to that replaced had been and that the victim’s name location, print and that boot consis- was longer appeared pages. no on the Defendant tent with one of Defendant’s boots. also stated to other witnesses that he saw the victim Flora Vista on the date of her Investigators also linked Defendant to disappearance. rope strangle the victim. was used rope Several witnesses testified that the had In March after the victim’s design distinct came from the back of a found, body was Defendant had a conversa- belonged pickup grandfa- white stepfather, tion with his wife’s in which De- ther of Defendant’s wife at the time of the fendant stated that he had seen the victim disappearance. victim’s These witnesses tes- hitchhiking near a bar and restaurant rope kept tified that the was the back of Vista, stopped pick Flora that he had her pickup and was used to a trash restrain up, and that he offered her ride into Aztec pickup hauling barrel when the was trash to applications something.” “to do some there or dump. driving was Defendant seen explained Defendant then that the victim had pickup white around the time of the victim’s very angry being become and insisted on let disappearance. Several witnesses also ob- out at the convenience store Flora Vista. extensively served that the Defendant had bought Defendant stated he her a soft pickup cab cleaned the after the victim down, candy drink and a bar calm her disappeared. the last time he saw her at the later, pickup Several months the white convenience store. Defendant also told sev- individual, was sold to another who testified eral other witnesses he talked to the gave that he found strands of red hair victim or her a ride on the of her consistent date her, starting “make love” to one of these and he was disappearance. Defendant told “just “limped mari- that he had talked about his she fell down” or down.” After witnesses victim, down,” got that the victim problems “limped tal victim gave sympathetic response, and that he rope again. scared and tied the He noticed may go if have have asked her she wanted to going that the victim was dead and was He to another witness that else, a beer. admitted take her somewhere but the road was give he wanted to the victim a ride because muddy. up, picked too He her carried her young good- hair and road, she had red and was in a off the side of the and threw her sug- looking. communications Nonverbal wash or a ditch. that wanted gested to the witness Defendant jury in Defendant was tried before a {15} girl. pick up to phase In the initial his December 1995. of night during the One summer {12} trial, guilty of first found Defendant working Defendant and his wife were

while murder, kidnapping, degree degree first and state, with a carnival in another Defendant attempted The trial court then sen- CSP. girl stated to his wife “that he was with and forty-two years impris- Defendant to tenced her, they ... he had sex with and that after attempted kidnapping and CSP onment for going to had sex that she said she was prior taking after into account his convic- that, cops, and so so that he killed her.” trial, phase In the second of the tions. wife her Defendant’s told mother about circumstances, aggravating found two statement, eventually reported it and was kidnapping murder in commission of a investigators police. When asked Defendant pre- of a witness to a crime to and murder 27, 1994, about the statement on December crime; jury specified report vent responded that to his wife. he he had lied imposed penalty, death and the Court period, Defendant told Around the same time pursuant jury’s verdict. This sentence kidding witness that he had been another appeal direct followed. when he made the statement. Following his arrest on December {13} II. in the Defendant was detained San issue, prosecutorial Under the first County There he Juan Detention Center. misconduct, Defendant has raised issues that he killed the victim. told two inmates argu- evidentiary improper well as error as occasions, separate two Defendant told On prosecutori- ment. Defendant contends girl.” inmate: “I killed that the first On thematic, “pervasive and al misconduct was occasion, that he second Defendant admitted juror[s’] sympa- appealing to the fears lawyer had confessed to his and remarked thy” con- [Defendant’s and that it “violated took, “I I taken that: wish wouldn’t have rights free of cruel and stitutional to be Later, rope me.” that damn Defendant impartial jury, punishment, to an unusual you going a second inmate: “I’m to tell told process of law.” We address and to due you happened the truth. I’ll tell what to” the headings: three claims of these issues under victim. error, prosecuto- evidentiary other claims of proceeded give Defendant then misconduct, cumulative error. We rial following picked account of his crimes: He evidentiary error. the claims of first address up in Flora the victim outside bar Vista prosecutorial misconduct The other claims up According took her the hills. Defen- cumulative error are addressed subse- him, dant, “making he she was moves” quently under VII. her, “making moves” on and after that tri Defendant asserts happened.” rope He tied a “some stuff admitting evidence of his up court erred in the victim. He tied her because al around wife, of his his his invocation was “cute” and he wanted to “make love” statement she silent, Also, conversation with having right to remain his her. he “liked control over strategy, attorney trial the risk “get his about his people” and wanted to back” at his against fight. who testified girlfriend they had a While to inmate witnesses because cases, him, to other pickup comparison of his case up victim was tied acts, testimony by Later, prior expert an bad who affidavit. he discussed the statement records, again jail had reviewed his mental health with a inmate. impact. general, victim In we review the objected to the admission evidentiary rulings trial court’s for an abuse ap- of the statement at trial and asserts on discretion, Woodward, v. see State peal admitting that the trial court erred 1, 4, (1995), N.M. 908 P.2d when his wife statement to his because it is a properly preserved appellate are subject confidential communication Lopez, review. See privilege the husband-wife under Rule 11- (Ct.App.1986). 734 P.2d When NMRA State concedes that evidentiary properly pre- an issue is not privilege under the statement falls con- served, generally our review is limited to tained in Rule 11-505 but contends De- questions plain or fundamental error. See privilege prior fendant waived this to trial Lucero, State v. disclosing parties. the statement to third (1993). 1071, 1074 For the reasons stated contention, response to this Defendant as- below, we that none of conclude the eviden- investigative by serts that tactics used tiary rulings challenges that Defendant on the to elicit State his waiver of the husband- appeal provide a basis this Court to re- privilege improper they wife were so

verse his convictions or his death sentence. any rendered waiver invalid. A. Statement to his light concession, Defendant’s Wife of the- State’s {22}In agree we with Defendant’s initial assertion police Defendant’s wife disclosed to {18} subject that his wife’s statement was to the and later testified at trial that Defendant told privilege, husband-wife and that Defendant raped girl, her he had and killed a position privilege was in a to claim the not girl Defendant said he killed the because she withstanding his wife’s initial disclosure of report rape police. to threatened 11-505(B) police. the statement to Rule wife, According probably to his gives person privilege any “a proceeding night made this statement one in the summer prevent disclosing ... to another from Investigators of 1994. learned of the state- by person confidential communication to they questioned ment when Defendant’s wife person’s spouse they while were hus They year. incorporated later that the state- band and wife.” Under Rule 11-512 NMRA ment into affidavits that used show of a statement “[e]vidence or other probable cause to obtain a warrant for De- privileged disclosure of matter is not admissi fendant’s arrest and for a search of his vehi- against ble if privilege the holder of the cle. compelled was A. erroneously disclosure In investigators December in- {19} opportunity B. made without claim questioned terviewed Defendant and him Thus, privilege.” the fact that Defendant’s about the statement at issue. Before the police statement was disclosed to and includ interview, they rights read Defendant his necessarily ed in a search warrant does not Arizona, under Miranda v. 384 U.S. admissible, render the statements because (1966), 16 S.Ct. L.Ed.2d 694 but the disclosure occurred before Defendant did not inform him that the statement he opportunity had the claim privilege. privileged. response made to his wife was Compton, See State v. questions, their Defendant admitted that (1986). wife, he had made the statement to his but he claimed that the statement was a lie. Defendant contends that Shortly interview, investiga- after privilege husband-wife under Rule 11-505 tors gave applies executed the search warrant and to statements that are introduced in copy Defendant a containing the affidavit the courts of the State New Mexico to support the statement at issue. application Defendant showed an for a warrant. We acknowledge affidavit to a co-worker and acknowl- that New Mexico “[t]he rules edged respect privileges apply stages the co-worker that he had made a with at all actions, proceedings.” statement similar to the all one contained cases and Rule circumstances, Hart, these 11-1101(C) 1999; 932 P.2d Under NMRA cf. (inter (S.D.1986) conclude that the disclosure n. 1 we cannot N.W.2d erroneously” the hus under “compelled to mean that a similar rule this case was preting 11-512(A). warrant applies to search no ba- privilege The record reveals band-wife Rule affidavits); Morgan, 207 People v. but holding that waiver sis for Defendant’s cf. Cal.Rptr. Cal.App.3d privilege tainted was the husband-wife conclusion). (1989) (reaching opposite rights or that of his constitutional violation However, issue. De not reach this we need waiving into Defendant was coerced challenge validity of the does not fendant the statement at privilege by the inclusion of warrant, and in arrest warrant or the search supporting the search in the affidavits issue case,'the privi admission of a any erroneous Therefore, or the arrest warrant. warrant warrant does leged within a search statement court did not conclude that the district remaining, if non- require reversal admitting the statement Defendant err in the affidavit is suffi privileged information to his wife. made See, e.g., probable cause. to establish cient Hart, at 679. 391 N.W.2d B. Silence Defendant’s Moreover, impor and most next contention is tantly, that after Defendant we determine right to due prosecutor violated his that the opportunity to claim the hus given the by eliciting testimony that Defendant process privilege privilege, he waived band-wife right to remain silent after had invoked his disclosing at issue to third the statement right in being of this accordance advised 1999; 11-511 NMRA parties. See Rule Miranda, 470, at 86 S.Ct. 1602. 384 U.S. Wright Kenneth W. Gra Alan & Charles of the Detectives Schofield Christensen ham, Jr., Practice and Procedure Federal Department County ar Sheriffs San Juan (1989). 5602, not This waiver was at 828 him of his and advised rested Defendant prior by the use of rendered invalid 29, 1994. rights on December Miranda warrant affidavit. in the search statement Albuquer from They then drove Defendant pro Regardless of whether communications Aztec, New Mexi que a sheriffs office and 11-512 are ad by Rules 11-505 tected Albuquerque to from During the drive co. warrant-application proceedings, missible Aztec, made several statements. Defendant prohibited officers are not law enforcement that he would have the detectives He told voluntarily is using information from attempted they if had it with them “shot out” spouse investiga by suspect’s provided before, had day but that he arrest him the the courtroom. See purposes outside tive em talking after with his changed his mind 1032, F.2d Harper, v. States United Referring to information contained ployer. Kunkel, (5th Cir.1971); v. 1045-46 for the search warrant in the affidavit (Wis.Ct. 78-79 404 N.W.2d Wis.2d prior him to his the detectives had served case, we no reason to In this see App.1987). arrest, incor said a witness was Defendant investigators precluded from hold that ap stating that the victim’s name rect the court Defendant outside questioning daily planner. When peared in they obtained room about the statement Aztec, office in at the sheriffs arrived wife, investiga provided that his from not the detectives that he did Defendant told Miranda, at 384 U.S. complied with tors they did he believed kill the victim and that stated in privilege 1602. The 86 S.Ct. any against him. He not have exclusionary rule used is not an Rule 11-505 murderer. as the named another individual right guaranteed protect a fundamental interview, during Defen point At some Constitution, see States the United Lef knowledge of that he had some dant stated Muetze, 1319; kowitz, at 618 F.2d would anything he said victim but that pre has not at and Defendant N.W.2d implicate him. the husband- question whether served the trial, prosecutor questioned At right privilege involves a fundamental wife this statement constitution, about Detective Christensen see State v. state under our 1997-NMSC-006, ¶ 23, Gomez, follows: as [W]hat,

Q: anything, Ohio, if Doyle 610, 618, did the Defendant 426 U.S. 96 S.Ct. (1976) you say to in the room at (discussing pros interview 49 L.Ed.2d 91 postarrest sheriffs office? impeach ecutor’s use of silence to trial). testimony a defendant’s In such he, basically, A: He said that had some circumstances, prosecutor’s “a comment on [victim], knowledge anything but the defendant’s exercise of his fifth [or her] him, and, uh, implicate that he said would right may amendment to remain silent con stopped there. requiring stitute error reversal.” State v. Q: Okay. And when he said that he had Johnson, 692 P.2d victim], knowledge say some of [the did he (Ct.App.1984). To the extent that a trial respect to what about [the victim]? I permits prosecution court to introduce mean— silence, evidence of a defendant’s we also No, A: go he did not into detail. apply plain error rule. 11- See Rule Q: say Did he that he knew [the how 103(D) Lucero, 1999; NMRA 116 N.M. at victim] lived or not lived or— 453-54, 863 P.2d at 1074-75. Well, anything A: that he said im- would necessarily These same rules do not plicate him in the —in the [the death of apply when a defendant “hafs] not remained victim], during questioning, silent prosecu and the Q: you And did he elaborate —after—did inquiry tor’s at trial concerned his [or her] on, all, what he impli- knew that would statements, ... not [or her] his refusal or cate him on the death of [the victim]? Loera, failure to make a statement.” State v. No, A: he did not. 1996-NMSC-074, 8, 122 176; Johnson, accord 102 N.M. at object testimony did not to this may P.2d at 39. While “a defendant until exercise after Detective Christensen was ex- right to remain right silent even if that cused as a witness and the was excused asserted,” initially Hennessy, 114 N.M. at from the courtroom. P.2d at fact “[t]he that a Notwithstanding the lack of defendant omits [or details his her] state timely objection trial, appellate at an court certainly ment is not the kind of silence apply will the doctrine of fundamental error constitutionally protected which is as the de grant categories review of certain fendant does not respect remain silent with prosecutorial compromise misconduct that subject to the matter of his [or her] state right defendant’s to a fair trial. See State v. ment,” Johnson, 102 N.M. at at P.2d ¶ 1999-NMSC-001, 55, Rojo, 39. As one commentator notes: by 971 P.2d 829. prosecutor “Remarks properly, To elicit such facts the recount- directly comment on a defendant’s invo ing may witness conclude the account in a right cation of the to remain silent after by natural indicating fashion that there is receiving warnings under Miranda ... fall nothing say more to because the defendant into category Rojo, this of error.” 1999- Otherwise, stop. chose might NMSC-001, 55, 126 971 P.2d 829. erroneously police infer that cut the applies The “prosecuto same rule to certain interview short before the defendant had a questions rial pertaining to the defendant’s opportunity full give his account. postarrest testimony silence” and certain Gershman, Bennett L. Prosecutorial Miscon questions. elicited those State v. Hennes (1998). 9.3(d), § duct at 9-22 sy, (Ct.App.1992), part overruled During on other the bench conference that {29} Lucero, grounds by 453-54, 116 N.M. at testimony followed Detective Christensen’s apply regarding 1074-75. We this rule inas police Defendant’s statement to fundamentally case, much as it is unfair and a the trial court concluded that De- process violation of people’s due to allow fendant’s “sharing statement was a of infor- right invocation of their to remain silent to mation” rather than an invocation of his Fifth against be used they rights. Nevertheless, them after have been Amendment the trial right. arrested and proceeded informed of this prosecutor court to warn the Cf. guilt from they infer Defendant’s any that should argue allowed to would not be the State rights. his constitutional invocation of his guilt from the statement consciousness V, VI; N.M. Const. amends. See U.S. Const. also instructed The trial court question. (as 1994), II, 15. §§ 14 amended Schofield, art. witness, to tes- not Detective next offered Finally, the trial court tify it. about recognize testimo We to remind give an instruction invo regarding Defendant’s ny or comments proof, and Defendant’s burden State’s may amount to right to counsel cation of his sufficient, be “That will counsel stated: trial rea error for the same plain or fundamental Honor.” Your respect Defen with that we discussed sons circumstances, agree we these Under right to remain silent. invocation of his dant’s focus of the court that with the trial 9.3(c), Gershman, § Fur supra, at 9-20. See testi- inquiry and the detective’s prosecutor’s ther, recognize improper that it for the made that Defendant mony was a statement integ counsel’s to attack defense prosecution to make a or failure than his refusal rather insinuating defense counsel be rity by prosecu- note that unlike We statement. lying, guilty or was see his client was lieved P.2d at Hennessy, 114 N.M. tor 10.4(b), (c), Gershman, supra, not in this case did prosecutor his Defendant and between communications jury that should infer argue subject lawyer-client lawyer may be that he guilt from the fact Rule 11-503 NMRA privilege, see making talking after the statement stopped however, case, In this had an obli- question, that Defendant or communica testimony regarding Defendant’s prior statement. on his gation to elaborate privileged trial counsel was not tions with his reasons, that Detec- we conclude For these the communica disclosed because Defendant of his conversation tive account Christensen’s Rule 11-511. party. third See tions to a involve kind of did not Defendant testimony did not indicate party’s third that would defendant’s silence reference to a speaking trial counsel that Defendant’s plain doctrine of require under the reversal that Defendant was behalf or on Defendant’s fundamental error. or following advice to invoking his counsel’s contrary, “just keep his mouth shut.” On with his Communications C. Defendant’s in testimony that Defendant indicated Trial Counsel his admissions to share both proceeded stead that the trial court asserts lawyer’s with others. guilt advice and his admitting testimony of other in- erred Further, testimony on De did dwell Defendant made regarding statements mates turned but instead trial counsel fendant’s strategy and his com- his trial to them about with his mother. conversations Defendant’s pros- trial counsel. The munications with his circumstances, we con these narrow Under testimony inmate from one elicited ecutor testimony regarding that the inmate’s clude going said he was that Defendant who stated trial with his communications Defendant’s prosecutor The elicited this case.” to “beat reference not the kind of counsel is inmate who stated testimony from another constitutional of Defendant’s invocation “confessed to his said he had that Defendant plain or funda amount to rights that would very first that he’d lawyer from the ... 1996-NMSC-074, Loera, mental error. Cf. lawyer had told girl,” that “his killed the but 641, 8, 122 176. 930 P.2d evi- they was circumstantial him that all had of respect to the issue With dence, just keep his mouth if he’d and that amounted prosecutor’s questions the Defendant whether get him off.” that he would shut integrity impugn to the effort line to a conscious object timely manner to this in a did not counsel, we conclude trial appeal, he claims of Defendant’s On questioning at trial. of by Defen suggested the evidence the view of prosecution the testimony elicited that the construction,” only possible is “not the only purpose was to dant and its was irrelevant “in a better trial court was and that Defendant’s trial integrity of impugn the analyze situation- weigh and such position to suggest improperly to or to counsel ally questions specific possibility get than we.” United that inmate witnesses “could Moore, 377, States v. 104 F.3d 390-91 shank them.” (D.C.Cir.1997). We note that the inmate’s ques prosecutor’s line of testimony regarding Defendant’s conversa tioning was invited defense counsel’s appeared tion with trial his counsel repeated credibility attacks on the of questioning context a line of of about series During opening inmate witnesses. his of inculpatory statements that Defendant statement, example, defense counsel prosecutor’s ques made to that inmate. The stated, only people going “the who to are inculpatory tions focused this series of pointing saying [Defendant] be to he any statements details about the crimes jailhouse it are ... [did] De snitches.” they might reveal. statements These fense counsel continued to raise issue in proving guilt. were relevant Defendant’s Thus, credibility during of inmates’ cross-ex context, when we consider we cannot amination, questioned when he each say the reference to trial Defendant’s counsel possible inmate witnesses about incentives improper purpose was elicited for an or that “ might given have these witnesses question it guilt makes the ‘so doubtful During motive to lie. closing argument, that it permit would shock the conscience ” urged defense counsel base stand,’ Osborne, conviction v. State verdict rapers, its “on the word of child (1991) 111 N.M. 808 P.2d liars, thieves, people hoping get [and] (quoting Rogers, v. State lesser judgment sentences when face (Ct.App.1969)); State cf. themselves.” Clark, 1999-NMSC-035, ¶ 54, v. [hereinafter 990 P.2d 793 III Clark ] attacking Given that the credi (rejecting the defendant’s contention that the bility of the inmate witnesses in this manner improperly impugned integrity defense, such a central theme of the by accusing trying defense counsel him prosecution was entitled to evi introduce judicial system), circumvent the nor did the to" dence rebut attack. See United testimony plain admission of this amount (6th Mitchell, States 556 F.2d 379-80 error. Cir.1977); 4 Margaret Jack B. Weinstein & Finally, por we note that some Berger, A. Weinstein’s Federal Evidence tions testimony of the inmate’s were consis 607.09[1], § at 607-104 (Joseph to-107 M. position tent with maintaining McLaughlin, ed., ed.1999); 2d 27 Charles his innocence at trial. In particular, Wright Gold, Alan & James Victor Federal against statements that Defen Practice and Procedure at 583-85 dant was circumstantial he and that would (1990). Further, prose the evidence that the “beat were this case” consistent with that support cution introduced to wit inmate position. Inasmuch as these statements credibility “logically spe nesses’ refutes the self-serving, say we cannot that Defen focus of credibility. cific the attack” on their unfairly prejudiced by dant was their admis Wright Gold, supra, § & Thus, sion. we do not find a basis for rever suggested Such evidence that the benefits to sal in testimony the admission of the inmate’s giving testimony be obtained from untruthful regarding Defendant’s statements about his existed, prosecution, to if any favorable the strategy trial or his communications with his might by be outweighed the burdens testi of trial counsel. fying against Finally, another inmate. we that though prosecutor’s note even the re

D. Risk to the State’s Witnesses defense, by marks invited the the trial Defendant asserts that the trial court objection {36} court sustained defense counsel’s to by allowing erred testimony “in- about the the statement the that inmate witnesses mate may place get code” under which inmates a shank prosecutor “could in them.” The safety their own in jeopardy by testifying any not make did further remarks of this against circumstances, other inmates. also Defendant chal- nature. Under these con we lenges prosecutor’s regarding the provide remark the clude that this issue does not a basis improper propensity his State introduced evi- reversal of Defendant’s convictions or for guilt by phase at the of his trial elicit- dence sentence. death testimony money ing he had that stolen from grandfather, a had witness’s that he been Comparison E. to Other Cases (DWI), driving for while arrested intoxicated Relying Chapman, on v. previously employed a that he was with car- (1986), 104 N.M. P.2d nival, prepared and that he had been to alleges that it error for the Defendant was police prior it out” “shoot with to his arrest. testimony comparing to De prosecutor elicit reasons, following disagree For the we with respect with fendant’s case to other cases regarding Defendant’s contentions evidence quantity inmate witnesses the of who testi of prior bad acts. disagree. the We Defendant fied for State. credibility We conclude that the evidence attempted impeach the the of by theory prior of crime in 1982 was developing the Defendant’s rele inmate witnesses prove for murder in vant to his motive the testimony high-profile of that the inmates aggravating the context of the circumstance is a to obtain noto cases motivated desire Clark, murdering of v. witness. See State duty riety rather than a to share the truth. 304-05, 108 N.M. 338-39 attempted The State then to rebut Defen (1989) ]; Woodward, I Clark [hereinafter repeated credibility dant’s attacks the of cf. (“[Evi 7-8, at P.2d 121 N.M. at 237-38 by eliciting the State’s inmate witnesses tes ... dence of motive was relevant the timony any recall no one could first-degree requisite mental state for mur any had inmate witnesses testified other der.”). Further, note trial we that the court high-profile County. cases San Juan As gave limiting instruction to the effect that above, have it within trial noted the jury was to consider the evidence of permit rebuttal in this court’s discretion prior only purpose crime Defendant’s credibility manner when the of a witness is determining whether murder victim in generally attacked. See 4 Weinstein & Ber present prevent was killed to her case 607.09[1]; Gold, supra, Wright ger, § & I, reporting from a crime. As in Clark addition, supra, at 583-85. In 338-39, 304-05, P.2d N.M. at at some of prosecutor’s reference other cases is dis prior crime were the details relevant tinguishable Chapman from because there purpose. We con and admissible for suggestion culpabili no was Defendant’s not its clude the trial court did abuse discre ty equated in this case should be with the admitting tion in the evidence. culpability high-profile other defendants Chapman, eases. See testimony suggesting that Rather, testimony 394. here money had stolen from witness’s credibility exclusively on focused grandfather that he had been arrested witnesses, develop inmate the State brief, inadvertent, and re for DWI was comparison ing a invited Defendant. For sponsive question. prosecutor’s to the reasons, claim is these Defendant’s without instance, prose the trial court and each merit. stopped testimony before wit cutor elaborate; the trial had a chance to ness F. Prior Bad Acts jury to promptly court also instructed the conclude that disregard trial the statements. We Defendant also contends admitting showing no that the trial erred in unfair- has been “[t]here court objections prompt sustaining ly suggested court’s that Defendant had conformity prior failed to cure the propensity to act admonishments to 11-404(B) testimony in very ques acts. Rule NMRA effect of the” brief bad See McGuire, Defendant, According the State tion. State introduced (1990); 996, v. P.2d accord State improper propensity penalty at the 795 1005 evidence 441, 444-45, 872, by calling his 77 423 P.2d phase Ferguson, trial the victim of a N.M. (1967). also that Defen he in as a 874-75 We conclude crime committed 1982 witness deprived of a fair trial because against him. asserts dant was not Defendant also that 502 purpose showing

the inadvertent statements were not elicited the his consciousness of emphasized prosecution. or permissible See State guilt, a use under 11- Rule ¶ 1998-NMSC-014, 51, 404(B). Duffy, v. Ruiz, 126 N.M. See 119 N.M. at 892 P.2d 807; McDonald, 967 State v. P.2d 1998- 966 (concluding at that evidence of a defen ¶¶ 27-29, NMSC-034, 126 N.M. 966 P.2d battery dant’s of a witness was to admissible 752. show that the doing things defendant “was admitting guilt” consistent with his regarding Information Defen “demonstrating he knew guilty”). that he was dant’s work carnival was admissible as back trial The court did not abuse its discretion ground evidence to show the context other admitting this evidence. evidence, namely admissible Defendant’s regarding statements to detectives his initial Psychological G. Records and Expert Tes- day contact the victim with on the timony murder, during and the time frame which granted trial court State’s Defendant made statement to his wife for discovery motion of confidential medical raped girl. he had a killed See Ruiz, regarding voluntary records Defendant’s State v. 892 P.2d hospital prior commitment at a (Ct.App.1995) mental (affirming the admis question. crimes in The trial sion of court ad concerning evidence a also defendant’s expert testimony Matthews, mitted the “provide[ abuse of of Dr. his child the] context” psychologist why for had battering the defendant was who reviewed rec his these wife); Jordan, 76, 80-81, ords. State v. Defendant asserts the medical subject (Ct.App.199S) proper 210-11 records were not a (affirming of discov ery place because he not admission of evidence of did mental prior bad act his explain at the context of health issue in the case. 11- the victim’s father’s See Rule 504(B), (D)(3) 1999; testimony theory rebut NMRA defense cf. ¶ 1996-NMCA-073, 15, Roper, that the encouraged father had the victim to accusations). (discussing P.2d make generally false See whether a defendant Berger, placed physical his supra, § Weinstein & condition at for 401.04[4][a] issue 11-504(D)(3)). purposes of (discussing background the relevance Rule evi Defendant dence). asserts testimony We note that also that Dr. defense counsel did Matthews’ object not at trial when was inadmissible because it Defendant’s ex-wife was tainted psychologist’s testified that Defendant’s carnival work in unlawful review of Defen records, talking volved dant’s medical “tricking customers and because it not did addition, requirements their In expert testimony minds.” meet for Defendant himself placed his carnival work stated Rule NMRA at issue when he 11-702 be police unfairly told he cause it avoided the victim invited the when to find day guilty he saw her on the Defendant on disappearance comparison of her based with persons because him directly eye. she looked other who committed notorious crimes, explained Chapman, see he would avoid people directly who looked him eye based on experience. his carnival Under concedes, The State and we circumstances, these we conclude that agree, that the confidential medical records issue of the carnival pre at issue proper case were not a sub review, served appellate grounds for ject of discovery because Defendant did not plain

reversal based or fundamental error place his any mental health at phase issue at present. are not 1996-NMCA-073, of his trial. Roper, See post-arrest (stating not-guilty plea that a does not statement of his intent to it out” “shoot with place purposes condition at issue for prior 11-504(D)(3)). officers his prior arrest is anot bad Rule agree We do not act, because no presented evidence was to Defendant the erroneous release of show that Defendant his carried out intent. requires those records reversal of his convic addition, In his statement was admitted for tions his death sentence. order ther, given to reversal, preserve Defendant’s failure must demon- a defendant warrant reliability type prejudicial. evidentiary appel- issue for an error of this is the of strate that Jett, review, say plain 805 P.2d cannot that it v. late we was See State 11-103(A) (1991); opin- NMRA 1999 Rule to that Dr. Matthews’s error conclude (“Error may upon ruling a predicated relationship not be ion about the between dissocia- unless a experiences capacity which admits or excludes evidence a and the form tive to right party is of the affect- requirements substantial met intent of deliberate ed____”). case, In Defendant has not particular, agree In do Rule 11-702. we not any prejudice resulting from the erro- shown psychological signifi- that with Defendant of medical because neous release his records experiences of or re- cance dissociative their at of the records were admitted trial none lationship person’s capacity a to a to form precautions trial took to ensure and the court to kill deliberate intent are of com- matters any Dr. did not offer testimo- Matthews expert knowledge opinion an mon which ny any on the or that was based records unnecessary. history. aspect of Defendant’s medical Further, distinguishable this case is {50} regard to Defendant’s With {47} at Chapman, from N.M. at objections testimony of Dr. Mat other case, In a 394. the defendant asserted objections thews, we note that these were not insanity, presented defense of State timely manner at Rule 11- raised a trial. who, expert testifying an while rebuttal 103(A)(1) objection “stating (requiring an relationship no between that there was direct ground objection” in specific order chal violence, schizophrenia paranoid recalled lenge exclusion a trial court’s admission or exceptions in notorious murders two which evidence). Thus, only review for funda paranoid by schizophrenics: were committed plain Begay, See mental or error. York, serial killer New “Son of Sam” ¶¶ 20-23, 1998-NMSC-029, a an who killed individual California girl driving his car onto crowded side- testify Dr. was Matthews called 325-26, In walk. 721 P.2d at 393-94. Id. Defendant about a statement attributed to Chapman, both State and defendant witnesses to whom Defen- one inmate limiting would agreed to a instruction that inmate dant confessed his crimes. The wit- admitting error in the testi- have cured the why he asked Defendant ness testified that it, instructing mony by disregard killed the victim and that Defendant re- he give limiting court but trial refused plied: It I “I was like was don’t know. id. instruction. See myself myself watching standing outside of contrast, trial court in the Dr. this testi- do this.” Matthews reviewed give no present opportunity had case mony, describ- concluded that Defendant was limiting did because Defendant instruction experience, ing a and testified dissociative Further, request Dr. Matthews did not one. experiences are a common that dissociative any nor testify notorious criminal about dealing that are un- way of with situations equate condition with Defendant’s mental usual, highly charged, or He also stressful. Thus, we conclude that another. experience that a dissociative does testified testimony Dr. was admission of Matthews’ not indicate mental condition would plain error. neither fundamental nor capacity negate to form delib- a defendant’s intent to kill. erate Impact H. Evidence Victim intent is an element Deliberate trial degree murder contends first of the crime of case, by admitting impact evi- charged court victim in this erred which Defendant was stage of during the final and whether a dence UJI 14-201 NMRA see considering whether capacity experience his trial when affected dissociative impris- impose of death life because a sentence such intent was issue to form recently the issue onment. addressed that he was “outside We Defendant’s statement III, 1999- impact in Clark killed Fur- victim of himself’ he the victim. when 504 ¶¶ 35-45, 128

NMSC-035, 119, Notwithstanding any statutory N.M. 990 P.2d authority impact admitting impact for There we held “victim victim 793. evi evi dence, dence, narrowly emphasize we presented, brief wish to that the is ad Rules requiring of Evidence penalty relevance and the bal during phase the of missible death ancing of prejudice apply unfair also to testi penalty Specifically, Id. 37. cases.” mony and exhibits that are introduced in a concluded that the admission of the victim capital felony sentencing proceeding for the impact evidence issue in that case was purpose showing impact. of victim See Rules did consistent with the CFSA and not violate 1999,11-403 1999; 11-402 NMRA NMRA ¶¶37—15. guarantees. constitutional See id. of. Broad., Inc., Ammerman Hubbard 89 holdings reaffirm in We our Clark III but 307, 311-12, 1354, N.M. 1358-59 present take note of two features of the case (1976) (concluding power pre the (1) require analysis: further the fact scribe rules of procedure evidence and is committing that Defendant was arrested for Court). constitutionally Thus, in vested this the crimes before the date effective of New may certain kinds of be evidence not admissi Const, laws, rights Mexico’s victim’s see purpose ble for this even though have II, 24(A)(7); § § art. NMSA 31-26- See, e.g., probative some value. United (2) 4(G) (1995); and the fact that the victim McVeigh, States v. 153 F.3d 1221 n. 47 impact evidence in this case included a video (10th Cir.1998) (noting that “the district depiction taped prior of victim to her prohibited court of wedding the introduction testimony death addition to the of two photographs videos”), denied, and home cert. witnesses. 526 U.S. 119 S.Ct. 143 L.Ed.2d (1999). firstWe address effective case, rights however, of date the victim’s In laws relation this we con timing prosecution of clude that this the trial court was case. careful limit presentation impact We note that the State’s Defendant’s arrest and the victim tes timony he crimes committed so it did not occurred 1994. The exceed bound Payne provisions progeny. aries established in rights crime victim’s in our and its state particular, presentation constitution did not take until State’s Leg effect provided about statutory limited “evidence the victim authority islature to im Const, impact plement II, about the of the murder on them. See the vic art. 24(C). family jury’s tim’s is [that] relevant to the The effective date of the relevant decision as to pen whether death implementing legislation January alty imposed.” be N.M.Laws, Payne, should 501 U.S. at 144,<,§ See ch. 16. We con 827, 111 S.Ct. 2597. The State did not at clude, however,that the admission of victim tempt present regarding other impact penalty evidence in this death case topics prohibited that remain under Booth v. depend authority provided by does not 496, 508-09, Maryland, 482 U.S. S.Ct. rights Rather, the crime victim’s laws. as we (1987), 96 L.Ed.2d 440 as “a such vic III, 1999-NMSC-035, discussed Clark family tim’s ¶¶ members’ characterizations and 37-38, 990 P.2d 793 states crime, opinions defendant, about the free to admit this type of evidence appropriate Payne, sentence.” 501 U.S. following the Supreme United States Court’s at 830 n. S.Ct. ruling Tennessee, in Payne v. 501 U.S. (1991), S.Ct. L.Ed.2d 720 only forty-six noteWe two of the 31-20A-1(C) 31-20A-2(B) Sections witnesses called the State offered testimo- provided already statutory the CFSA author ny impact, about victim testimony and their ity for the type admission of evidence occupied only thirty eighteen- minutes of an penalty in death cases in New Mexico day mother, courts trial. The victim’s who had prior to the effective date of the crime vic during guilt phase earlier testified rights Thus, tim’s trial, laws. the effective date of only appeared penal- at the such laws ty does not affect phase the admission of lay a few minutes to the founda- impact victim evidence in admitting videotaped depiction this case. tion for death; trial. prior iden- had viewed earlier in the to her she then Un the victim circumstances, image pointing her der narrow we conclude tified the victim these videotape. appeared unfairly prejudiced it on the when that Defendant was by videotape. this the admission of Cf. videotape had been edited so that {57} Woodward, 10, 121 at P.2d 240 N.M. 908 at depicted It only lasted three minutes. and it (“The of evi erroneous admission cumulative campground during a an elk- scene described dence is error because it does not harmless hunting prior few to the vic- trip a months defendant.”); prejudice Payne, the 501 U.S. any victim nor oth- tim’s death. Neither the J., 832, (O’Connor, at 111 S.Ct. 2597 concur during person in most of the er view ring) (noting impact that victim evidence During the moments when the video. few jury the could not have inflamed more than appear, eating- was shown victim did she crime). did the facts of the campers. standing lunch and beside other jacket jeans. in a and was dressed blue She We also that Defen conclude close-ups, and she did not There were no prejudiced by unfairly dant was not the testi speak. mony plans regarding the victim’s future and family disappearance No the victim’s impact members of the of her and death impact regarding family Payne progeny the emotional of testified on members. and its disappearance specifically testimony regarding and death. That the victim’s allow a vic “ subject by presented ‘uniqueness a friend of the an tim’s as individual human ” 823,, family approximately being,’ Payne, who twen- 111 testified for 501 U.S. at S.Ct. subject not testi- this ty-three probative minutes. The witness had 2597 because has value a of previously assessing specific by fied and was not member the “the harm caused the 825, testimony family; much her sim- Id. 111 question.” victim’s of crime in at S.Ct. 2597; that laid the founda- at ply McVeigh, recounted the facts also 153 F.3d 1219 see testimony personal knowledge (affirming her the victim tion for of the admission of con victims); family. generally history 2 cerning Wiley her See Weinstein & life of v. the (5th Cir.1992) (simi Puckett, 86,105 Berger, (discussing swpra, 401.04[4][a] the F.2d 969 evidence). Collins, 394, (5th lar); background After relevance of v. 962 F.2d Black Cir.1992) (similar). foundation, laying “Payne specifically this the witness testified al the elk- spoke that she with the victim at to the effects of the lows witnesses describe death, families,” hunting prior McVeigh, few her 153 F.3d trip a months to crime on their making plans 1221, the victim was at the Circuit has held that Tenth go impact descriptions may home live with mother and the of come her to such illustrate family’s nursing school. The then described the to the “last witness crime reference victim, disappearance McVeigh, impact the victim’s with the 153 F.3d of contacts” family. fate at to learn the of the death her their efforts victim, learning their reactions id. presentation of We believe State’s id., death, of the and their efforts victim’s impact with in this case falls victim “ cope by the with the loss occasioned victim’s type ‘quick glimpse the life in the of ” death, at 1220. Because illustrations id. such extinguish’ defendant] chose to [the which narrowly presented,” Clark were “brief III, we Clark 1999-NMSC- discussed III, 37, 128 1999-NMSC-035, ¶ 39, (quot 990 P.2d 793 impact P.2d conclude that victim 793 we Payne, ing 501 U.S. at S.Ct. pro in this does not evidence admitted case (alteration still original)). We note that a reversing vide a basis for Defendant’s death prior her death photograph of the victim sentence. jury published had been admitted and trial, objection in the and that without earlier III. photograph during the same was taken elk-hunting trip depicted in next review suffi that was We Thus, ciency portion In videotape. victim depiction of the evidence. arguments opinion, videotape closely paralleled the de we address Defendant’s in the sup- was insufficient evidence to piction prior victim to her death that there port aggravating either the circumstances murder kidnapping the commission kidnapping only found or his convic- kidnap when the force used victim “to tion. We do so order ensure that ... accomplish was the same force used to beyond could have found attempt rational penetration the sexual or the mur- required Henderson, facts reasonable doubt essential der. See 109 N.M. at Garcia, for a conviction.” State He also relies on authorities (1992). assess- which hold that the elements crime of sufficiency ing the of the evidence used to kidnapping may be subsumed within the ele- support penalty, apply must death purposes ments of jeopardy CSP double scrutiny degree qualita- of that reflects “the see, circumstances, in e.g., some State v. punish- of death from all ¶¶ tive difference other Crain, 1997-NMCA-101, 21-22, 124 N.M. Ramos, 992, ments.” v. 463 U.S. 1095, 84, P.2d a and that failure to in- California 3446, (1983); 998, 103 S.Ct. 77 L.Ed.2d 1171 an clude essential element of an offense Henderson, 655, also see may jury the instructions constitute funda- (1990) 789 P.2d this (applying error, see, Osborne, e.g., mental 111 N.M. at heightened scrutiny form of to the Court’s 661-63, Thus, 808 P.2d at 631-33. in our support of to an aggra- review evidence used sufficiency evidence, discussion of the of the vating CFSA), circumstance under the over- legal principles apply we also refer to part grounds by on ruled other Clark v. jeopardy of cases double and instructional Tansy, 118 N.M. 882 P.2d 534 error. We first review the evidence used to (1994) particular, [hereinafter Clark In II]. prove each of kidnap- element of the crime permit penalty the CFSA does not the death ping. imposed if sup- to be “the evidence does not port finding statutory aggravating the of a Kidnapping 1.Elements of circumstance,” 31-20A-4(C)(1), Section or kidnap- Defendant was of convicted {63} supports finding “the evidence a the ping degree the first under the law in mitigating outweigh ag- circumstances the prior effect to the 1995 amendment of Sec- circumstances,” gravating Section 31-20A- Foster, 1999-NMSC-007, tion 30-4-1. See n. 4(C)(2). portion opinion, N.M. (explaining 974 P.2d 140 the address the issue of whether the evidence changes by occasioned the 1995 amendment supports finding mitigatory cir- 30-4A1). of Section The trial court instruct- outweigh aggravating cumstances cir- jury following ed the on the elements of this cumstances, sufficiency well as as other crime: evidence issues. 1. The defendant took or confined or re- Kidnapping

A. victim] strained or decep- [the force tion; claims that 2. The defendant intended to hold presented jury [the evidence to the was insuffi against will; victim] to service her cient sustain either his conviction for kid napping or his death sentence based on the The great bodily 3. defendant inflicted aggravating circumstance of murder in the victim]; harm on [the a kidnapping. commission of See 31-20A- happened 4. This in New Mexico on or (“The 4(C) penalty death shall not be im day February, about 7th 1994. (1) posed if: support the evidence does not jury patterned These instructions were on finding statutory aggravating cir (withdrawn 1997), UJI 14-404 NMRA 1996 cumstance----”); 1999-NMSC-001, Rojo, corresponds which to the statute effect ¶¶ 29-33, (con- P.2d 829 prior to the 1995 amendment. cluding that neither the evidence surround- ing victim’s nor Appeals murder the evidence Court of has ob prior key activity sexual to her served that “[t]he death was suffi- restraint ele kidnapping point cient kidnapping sustain the defendant’s ment in is the at which [the conviction). holding physical Defendant relies on [the our association with victim’s de longer voluntary.” there is sufficient evidence fendant no State v. Pisio, applicable in the versions of the 868 contained approval kidnapping statute and instructions. (Ct.App.1994), quoted with in Fos 1999-NMSC-007, 32, 126 ter, Kidnapping, Attempted 2. Whether case, may In this and Murder are Dis- CSP suggested jury that

have Defendant’s Factually tinct began a con victim as association j pro in which Defendant sensual encounter a/gu- We next address Defendant’s posed give the victim ride. Based ment there is insufficient evidence of statements, physical evi kidnapping because the force used accom- dence, testimony of the victim’s plish kidnapping was the same force used mother, however, reasonably could accomplish attempt pen- the sexual infer that the association between Defendant Ap- or the murder. The Court of etration involuntary. and the victim became peals kidnapping has reversed a conviction kidnapping when there was no evidence of a in “Because an individual’s factually that was distinct from a murder or subject proof direct tent is seldom Crain, 1997-NMCA-101, a sex See offense. evidence, may proved by circum intent be ¶ 21, (concluding 946 P.2d 1095 Pisio, 119 N.M. at stantial evidence.” charged “kidnapping that cannot be out of Thus, prove P.2d the intent at 867. every degree] [in the third without CSP kidnapping, element of we have allowed a force, restraint, occurring deception some “infer, jury to from commit evidence acts pen- either before or after the sexual point during at some later the commis ted etration”). When there is that the evidence kidnapping, necessary a sion of that the perpetrator forcibly abducted the victim be- the victim criminal intent existed at the time penetration or attempting fore sexual contin- McGuire, was 110 N.M. at first restrained.” the ued use force or restraint after sex act 308-09, testimony 795 P.2d 1000-01. The however, completed, rejected was we have regarding indication that he kidnapping proposition the that the is indis- up pick girl,” a his that “wanted to statement tinguishable the from sex offense. See a give wanted to the victim ride because he 307-09, McGuire, 110 795 P.2d at good- young had hair was she red (concluding that was 999-1001 there substan- looking, rope that a that fact he used was the support independent factual tial evidence ordinarily pickup, kept the back of the kidnapping and convictions bases for CSP a the evidence of acts committed at later began when incident as a forcible abduc- the provide adequate point kidnapping the the tion and the use of force continued after jury’s finding support for the that Defendant assaulted). sexually victim We also have intended to hold the victim for service rejected proposition kidnapping and the against her will. unitary when the force murder are conduct on state Based Defendant’s complete kidnapping was the used to the not ments, evidence, expert physical and the the the victim. same as the force used kill See testimony pathologist, the the forensic 1999-NMSC-007, Foster, 30, 126 N.M. reasonably jury also infer that Defen could De- 140. are not certain that We great bodily harm the victim dant inflicted on argument has in our support fendant’s cases. up he her the intent to fur when tied however, case persuaded, this We are Finally, her. evidence of ther restrain the kidnapping of a there was sufficient evidence disappearance February on the victim’s attempted from the factually distinct both suggesting that the victim evidence CSP and murder. disappearance, her was killed the date of on case, is sufficient In this there linking with the and the evidence Defendant kidnapping factually is provide sup on evidence of victim that date substantial attempted CSP jury’s regarding the tim distinct from the because port finding for the Thus, strangling rope a victim with a the manner that the ing of the crime. we conclude not kind of force or support described above is was sufficient to each evidence “necessarily involved in ev- degree that is kidnapping in the first restraint elements of consent,” penetration (1991), however, ery sexual without if Crain, 1997-NMCA-101, ¶ 21, jury there was basis for the factual- find every or “inherent in 946 P.2d 1095 almost ly attempted kidnapping, distinct bases for CSP,” Pisio, CSP, 119 N.M. at 889 P.2d at murder, then the conduct is consid- addition, In there from was evidence non-unitary. statutory provi- ered “[Similar jury which the could find that Defendant sharing may support sions certain elements away victim when he restrained the drove separate punishments convictions and where location in from her house toward remote presented examination of the facts at trial Vista; beyond consequently, the hills Flora jury reasonably establish that the could have jury could have kid also found independent inferred factual bases attempted napping factu CSP were charged case, jury offenses.” Id. ally distinct a second and different reasonably could have inferred the kid- jury ground. The could have determined CSP, napping, attempted and murder were passen Defendant restrained the victim as a factually distinct. these circum- Under prior ger pickup within strangling her stances, separate possible; are convictions rope. with the protection against jeopardy is double , applicable. There also sufficient kidnapping factually of a that is from distinct acknowledge We that dou jury the murder because could reason jeopardy principles may require ble reversal ably infer that all of the elements of conviction when the instructions kidnapping degree crime of in the first guilty allow the to return a verdict up” satisfied the time “tied legally inadequate based on a alternative and in victim order to “make to her.” love Cf. the no record contains indication of whether Foster, 1999-NMSC-007, 33, jury or not relied on that the alternative. P.2d 140. 974 Based on Defendant’s state Foster, 1999-NMSC-007, ¶ 27, See ments, evidence, physical the and the foren acknowledge 974 P.2d 140. We also that pathologist’s testimony sic a victim of in this ease there at least two different strangulation may lose consciousness several jury might times at which the have deter dies, minutes he jury before or she the also kidnapping mined complete: the was when reasonably could infer that the murder did away Defendant drove the from victim’s occur “limped not until the victim down” and house a in toward remote location the hills rope tied the around her neck began above Flora Vista when he to addition, another In time. there evi was rope. restrain her with the We believe the jury dence from which the could infer that jury could have on in relied either time order relationship involuntary the became when satisfy obligation its kidnapping to to find a away Defendant drove from the victim’s factually attempted distinct from CSP. Thus, home. on a second and different ground, jury had a factual basis find for ing kidnapping a that was distinct from 3. Elements Murder in the Commis- of murder, jury because the could have found Kidnapping sion of kidnapping occurred when Defendant re nextWe review the evidence used to {72} prior strained victim strangling her prove aggravating each element of the cir- rope.

awith of in cumstance murder of the commission Defendant has asserted that his 31-20A-5(B). kidnapping. See The trial CSP, kidnapping, attempted convictions for jury court instructed the following on the first degree right murder violate his aggravating elements of this circumstance: free jeopardy. be from double We under 1. kidnapping The crime of was commit- that, argue stand him properly analyzed, ted; right his to be from jeopardy free double precludes separate kidnap convictions for 2. [The victim] was while murdered de- CSP, ping, attempted degree mur committing kidnap- first fendant was State, der. Under ping; N.M. Swafford kidnapping were satisfied before mur committed with the of 3. The murder finding preclude not a der occurred does intent to kill. in victim was murdered the commission patterned on 14- This instruction is UJI case, because, kidnapping in this the evi of 7015 NMRA 1999. substantially finding supports a dence in the committee As noted kidnapping throughout “the continued in commentary to UJI 14-7015 and other crimes and un [Defendant's course Henderson, at 789 P.2d at N.M. McGuire, til the time of the victim’s death.” of murder aggravating circumstance 309, 795 at at P.2d 1001. addi N.M. kidnapping does not follow the commission tion, finding a that Defendant committed the automatically guilty on the un from a verdict to kill can murder with the intent be inferred kidnapping and murder. derlying offenses of upon intent from the same evidence of which “[Establishing aggrava an the elements of guilty relied find Defendant ting thing as circumstance is not the same degree murder under 30-2- first Section Id. at establishing the of a crime.” elements 1(A)(1), “willful, requires a which deliberate P.2d at 609. premeditated killing.” Defendant has read possible It would be sufficiency of challenged the evidence holding 31-20A- Henderson as that Section “willful, killing was deliberate and 5(B) only an to kill requires not intent but and we find reasonable premeditated,” no also an intent to commission of “kill[ ] doing Rojo, for so. 1999-NMSC- basis Cf. kidnapping.” N.M. at 789 P.2d at (reason ¶ 24, 126 971 P.2d 829 However, reject any 609. inference concerning ing that the method and 31-20A-5(B) re Henderson that Section killing support motive was sufficient ag quires proof specific intent for the finding defendant acted delib gravating of murder in the circumstance intent). erate Henderson, kidnapping. commission See (Ransom, Finally, we address Defen J., concurring dissenting part, part). dant’s reliance the doctrine of fundamen statutory attempt not an reference was applies the error as it to essential ele tal aggravating to confine the circumstance of jury in ments the instructions. jury to in a could kidnapping situations which in is error the asserts that there fundamental specific the find a defendant had formed regard jury to the court’s instructions trial kidnap intent to and then murder the victim. ing aggravated of murder the circumstance Rather, proving in addition to that the crime kidnapping of a because in the commission committed, aggrava the kidnapping of was clearly did not inform the these instructions ting in the circumstance of murder commis kidnapping jury find the that it would have to requires kidnapping proof of that “the sion attempted factually from be distinct the to kill” was committed with intent to murder disagree. murder. We Our CSP “in ... committed the commission of was applied the doctrine of funda past cases have 31-20-A-5(B); ac [kidnapping].” Section disputed of a mental error to omission jury “Even if the has cord 14-7015. UJI See, e.g., of element an offense. essential guilty felony of a mur found the defendant Osborne, 662, 808 P.2d at 111 N.M. at 632. it kidnapping, der in the commission of a case, jury instructed on all of In this was was must also find that murder commit aggravating circumstance the elements of this ted an to kill in order to find intent kidnapping of in murder in the commission of aggravating circumstance.” UJI 14-7015 with UJI 14-7015 and Section 31- accordance commentary. committee 20A-5(B). requested The instruction De appeal first time on an fendant for the pre the State We conclude that aggravating of circum element this essential prove the ele sented sufficient evidence to Rather, it instruc is a definitional stance. aggravating ments circumstance of of give a in failure to definitional kidnapping. “[A] tion. in the commission of murder a on an is not failure instruct that all the elements of the crime struction The fact of 510 there, Crain, element.” 1997-NMCA- We

essential conclude that 101, 11, 124 regarding 946 P.2d 1095. sufficient evidence each element of aggravating of circumstance murder of a We review Defendant’s cases, past witness. have we noted that claim of instructional error to determine used support aggravating evidence given the instructions am whether were so may circumstance include the defendant’s biguous as to create error. fundamental statements to the he or effect that she could “ may error “Fundamental be resorted to if go not let the victim ‘because that would be question guilt of ‘is doubtful that it so defendant, I, the end for’” the Clark 108 permit shock the would conscience prior N.M. at P.2d at crimes ” Osborne, conviction stand.’ 111 N.M. at sufficiently probative that are of the defen I, (quoting at P.2d Clark killing, dant’s for the at motive see id. 304- 331). Ambiguous at P.2d at 338-39, any of “[t]he P.2d at lack are “capable instructions those that of are motive, plausible together other with the acts interpretation.” than more one Par State v. attempting in defendant to avoid de ish, (1994). by destroying tection evidence at the scene jury ambiguous, When a instruction is then crime,” that would him [or her] tie jury look if the to see instructions as a Henderson, In this n ambiguity. whole cure the See id. types use of these State’s of case, “murder,” the definitions of “kidnap present case is consistent ping,” “attempted already CSP” with our I decisions Clark and Henderson. given jury the essential elements meet proving To its burden of that Defen- offenses, instructions for those each dant a to a murdered witness crime “for the those offenses contains distinct elements. purpose preventing report of the crime or Thus, we conclude that the instructions testimony any proceeding,” criminal Sec- prevent whole as a were sufficient to a rea 31-20A-5(G), tion the State introduced state- juror becoming sonable from confused or (and ments that Defendant made to his wife an misdirected to extent that would amount acknowledged which he presence in the to fundamental error. areWe satisfied that witnesses) other to the effect that he had understood the factual distinctions raped girl prevent and killed her to her necessary aggravating to find the circum reporting rape. from The State also stance of murder the commission that, introduced evidence Defendant had kidnapping precise without more definition prison prior served sentence for a convic- from the court. reported tion after a witness the crime in spite of Defendant’s threat kill her for B. Murder Witness doing so, attemptéd and had Defendant present in to avoid detection the case also Defendant contends that the evi- {78} disposing body of in the victim’s a remote presented jury dence was insufficient cleaning pickup location and in the which he jury’s finding regarding to sustain the the Finally, pre- had abducted her. evidence was aggravating a circumstance of murder of wit- sented to show that Defendant know did not 31-20A-5(G). § ness. See The trial court prior the victim to his commission the jury following instructed the on the elements question, in argued crimes and the State aggravating of this circumstance: jury the infer should from this evidence that crime; 1. [The victim] was a to witness a plausible there was no for other motive the killing. [The 2. prevent victim] was murdered to reporting [her] from the crime or Mitigating C. Circumstances Kidnapping Attempt-

crimes of and/or Although Defendant does {81} ed [CSP]. brief, in not raise the issue a his conduct jury patterned mandatory This instruction statutory was on UJI review of whether the 14-7023 NMRA1999. supports finding mitigat- evidence that the ¶ outweigh aggravating 990 P.2d 793 because ing circumstances assuring jury § an impartial in the selection of case. See 31-20A- circumstances this III, 1999-NMSC-035, may require be 4(A), (C)(2); that counsel consid “allowed Clark ¶¶ 85-86, prospective in 81-82, questioning erable latitude N.M. 793. [jury] Fenenga, Sutherlin requested jury received a in members.” Defendant (Ct.App. telling jury it must consid struction 1991) (citation quotation internal marks age; any of the “the defendant’s remorse er omitted) (alteration defendant; original). in of the the circumstances offense mitigating, anything else are which cases, penalty In death howev you believe that would lead to which er, discretion trial court’s is cabined imposed.” be penalty death should not “a UJI 14-121 NMRA which creates only mitigating circumstances requirement” posing questions procedural during presented penalty that Defendant prospective jurors about of the to their views however, trial, phase consisted of a of his penalty. prevent In order such death stipulation regarding brief allocution and “refiect[ing] questioning from defen [the on (He thirty-four years age. old at the his guilt any way,” in dant’s] innocence or UJI trial.) Under these circum time questions 14-121 that such should “not states stances, support the evidence does specifically, [the refer this case but mitigating finding that circumstances jurors’] In prospective general.” views in outweigh aggravating circumstances. instruction, this the trial accordance with Therefore, provide this issue does not a basis case would not allow defense court of Defendant’s death sentence. for reversal jurors prospective specifical counsel to refer dealing At ly to “the we are with now.” case IV. time, the trial court allowed counsel same asserts the trial asking for both sides considerable latitude rulings process selection court’s generalized, hypothetical questions. findWe right impar to an violated his constitutional abuse discretion trial court’s no (as II, § jury, art. tial see N.M. Const. attempt the need latitude balance for such 1994), trial un amended and that the court against necessity complying with UJI constitutionally right of denied the some ve 14-121. upon on nire members sit account VII, religion, of their see N.M. Const. art. evaluation of Based its Specifically, asserts that the trial he prospective elicited from a the statements improperly scope court restricted the of voir dire, may juror during “[t]he voir trial court dire, members of the failed excuse two juror if properly cause exclude though they pre for cause venire even substantially impair the juror’s would views penalty, disposed to vote for the death juror’s in accor performance of the duties improperly other members of the excluded the instructions and oath.” Clark dance with religious cul venire on the basis of their 1999-NMSC-035, 10, 128 III, tural beliefs. jurors Prospective “will auto P.2d 793. who every matically penalty the death general, we vote for review category case” fall into this because rulings regarding the selection of trial court’s evi good fail faith to the jurors discretion “the “will in consider for an abuse of because mitigating and circum position aggravating in dence of trial court is the best ‘assess mind,’ require [them] instructions juror’s upon juror’s of stances as the state based the Illinois, 729, 719, III, 504 credibility.” Morgan do.” v. U.S. demeanor and Clark 1999— (1992). 119, 2222, In NMSC-035, ¶ 5, 119 L.Ed.2d 492 990 793 112 S.Ct. 128 N.M. P.2d 129, 126, case, the trial N.M. Defendant contends that (quoting Sutphin, State v. 107 this (1988)). jurors 1314, prospective two to excuse apply P.2d We the court failed 753 1317 they though for cause made statements standard of review to the trial court’s even same automatically they suggesting dire that would of how voir should be determination every conducted, III, 1999-NMSC-035, penalty case. for death in vote the see Clark 512 jurors inability agree prospective their to apply

While we who these individuals was automatically penal- for death religious would vote the the law rather than their views. context, ¶ ty be in this must excused dis- See 17. id.

agree characterization with Defendant’s juror’s prospective in the statements this V. evaluating case. the of the views two jurors question, prospective in the trial court Defendant’s next contention is gave suggesting more credence statements refusing that the trial court in erred Defen an mind less open credence other requested jury dant’s on instructions the suggesting an statements automatic vote. involuntary lesser included offenses man “ significance Because the of each statement imprisonment. slaughter and false ‘Instruc credibility depends on the and demeanor of only tions on lesser included offenses should juror prospective it the time was given be when is there evidence that “ made, we believe that must ‘deference be highest degree lesser offense is the of the ” paid judge trial who sees hears McGruder, crime committed.’ State v. III, juror.’” 1999-NMSC-035, Clark ¶ 1997-NMSC-023, 11, 302, 123 N.M. 940 ¶ 5, 119, 990 (quoting P.2d 793 Southerland, (quoting P.2d 150 v. Witt, 412, Waimvright 426, 469 U.S. (Ct.App. (1985)). S.Ct. L.Ed.2d We find 1983)). In order to find reversible error in no trial abuse discretion court’s ruling issue, the trial court’s on this “we denial of Defendant’s motions to excuse these analysis able ‘must be to articulate an prospective jurors two for cause.2 jury might guilt, have used to determine ” ¶ analysis must be reasonable.’ Id. 13 For same reasons that Sizemore, (quoting State v. 115 N.M. prospective jurors courts exclude who will (Ct.App.1993)). automatically penalty vote the death for case, every they may prospec also exclude Defendant asserts that the jurors always against tive who will vote might involuntary have determined man III, penalty. death Clark See 1999-NMSC- slaughter, degree murder, not second ¶ 7, 128 N.M. 990 P.2d 793. Pro degree highest of homicide committed in jurors spective may express variety of rea theory this case based on the that the vic an against sons for automatic vote the death consequence tim’s was an death accidental ¶ penalty. religious See id. 6. views of placement rope of the around jurors prospective may provided some have “theory her neck. This is not reason why they the reason would have cast such an Pisio, able view evidence.” reason, automatic vote in this case. For 868; McGruder, 889 P.2d at contends the trial court im cf. ¶¶ 1997-NMSC-023, 13-14, properly jurors prospective excluded these (rejecting theory 940 P.2d 150 that the religion. disagree. account of their We gun defendant “held the to [the victim’s] For purposes disqualifying an individual head, intending frighten him, and then serving from penalty on a in a death fired”). accidentally case, “Manslaughter is it is the fact that the individual’s vote automatic, killing being will unlawful of a human without particular be rather than the malice,” (1994), gives casting reasons he or NMSA 30-2-3 she such an vote, “[i]nvoluntary manslaughter dispositive. automatic of man See id. consists slaughter We conclude that the trial committed in commission of an court did excluding amounting felony, prospec abuse its discretion unlawful act not to [a] jurors tive who might indicated that would the commission of a lawful act which automatically against penalty produce vote the death unlawful death an manner or case, in this excluding circumspection,” because basis for without due caution 2. Because we peremptory challenges conclude that the court did his two trial use of exclude not denying abuse its discretion in Defendant's prospective jurors these two after his motions motions, necessary it is not for us reach the were denied. question prejudiced by whether Defendant was

513 30-2-3(B). concurrently kidnapping no instead view of CSP Section Under Defendant, consecutively. According to both being the victim consent evidence did erroneously and the trial court under view of the the State by rope, a no strangled sentencing for a concurrent as a cure strangling viewed such evidence is a non-consensual erroneously jeopardy violation and not double “a act” or “an unlawful-act lawful even minimum, merger. law applied At a an common doctrine amounting felony.” to a 10, Meadors, 38, v. 121 49 n. strangulation with a State N.M. but non-fatal See intentional 731, (1995) (“Merger n. 10 aggravated bat- 908 P.2d 742 ligature an would have been 30-3-5(0 (1969), analyzing 1978, actually a common law doctrine for tery NMSA under Thus, multiple punishment been felony. issues that has not degree third even which is a Mexico.”). theory adopted New We conclude of an “accidental” under Defendant’s merger doc strangulation, the trial court’s reference to the the crime death intentional consequence. no v. statutory an trine is of State not meet definition of Under does Franks, 174, 177, 212 involuntary 889 P.2d manslaughter. may (Ct.App.1994), affirm a district “we respect kidnapping With to his ruling ground upon court relied conviction, jury asserts Defendant court, will not do so [however] the district we highest that the de might have determined ground unfair if reliance on the new would be gree false im of the crime committed was omitted.) (Citation appellant.” De Given prisonment theory based on a that the victim object to fendant’s failure to the concurrent unlawfully but for restrained not held was any sentencing and the lack need below Fish, service. See State v. issue, fact-finding on we for additional this (Ct.App.1985) (noting 701 P.2d that it unfair to are not convinced would be kidnapping and that the distinction between sentencing decision affirm the trial court’s imprisonment is “whether the defen false noncapital crimes on an alter for the based dant intended hold the victim for service native rationale. will”). “theo against Again, her Defendant’s ry view of is not a reasonable the evidence.” Apart jeopardy from double Pisio, 260, 889 at 868. 119 N.M. at P.2d considerations, multiple sentences “whether if the that Defendant’s Even believed concurrently con multiple run for offenses began victim as a con association secutively resting is a in the sound matter encounter, view of the sensual no reasonable Padil trial court.” discretion theory supports that the Defen la, N.M. hold for dant did not intend to the victim (1973). presumption common law Given the vehicle, when he confined her in his service sentences, at see id. in favor of concurrent advances, her sexual drove to a remote made pro P.2d at constitutional location, up.” According to her “tied sentences, against disproportionate hibition strangulation” own “accidental Defendant’s VIII; N.M. Const. Const. amend. see U.S. rope to theory, using he was restrain (as 1988), II, § 13 amended art. rope tying but purposes, for sexual victim requiring consecutive statute absence “necessarily is not around victim’s neck instance, Padilla, see sentences every penetration sexual without involved are not P.2d Crain, 1997-NMCA-101, ¶ 21, consent,” court its dis that the trial abused convinced facts, On these for ordering sentences cretion the precluded considering from attempted to run con kidnapping and CSP imprisonment highest is the ory that false currently. degree of crime committed. however, asserts,

YI. issue concur the trial court’s decision to attempted that, kidnapping if we for rent sentences Defendant asserts case significance in this on non- has additional his convictions were based CSP assume conduct, concurrent running run these sentences unitary court because the trial erred argument against the death attempted ly weakened his ning Defendant’s sentences assertion, penalty. support this dant In discussing To Defen- of a fair trial. the trial dant statement evidentiary rulings, relies on this Court’s that court’s ad- we have length facing capital “[t]he prosecu- of incarceration dressed Defendant’s claims that the can be by commenting defendant before he considered for tor erred on si- Defendant’s parole, sentence, lence, an to a death impugning integrity as alternative the of his trial provided counsel, insinuating is be information that must to a that the inmate wit- jury on capital against before it deliberates nesses who testified him were charge decides it danger, the defendant is his comparing and his case to other if jury apprised best respect quantity interest to have the of this cases with to the of such II, information.” Clark N.M. at 882 witnesses. We now address ad- P.2d at challenges prosecutor’s 533. Defendant asserts that if his ditional to the state- noncapital suggested sentences for the offenses run allegedly jurors had ments that to that consecutively, decision, they he would have been responsible able to were not for their argue jury ineligibility his gave personal that for opinions vouching for parole forty-nine years. strength would last for De- of the State’s case and the appropri- only argue fendant was sentence, able that his ineli- ateness of the death alluded gibility parole forty-two for would last for incriminating that was not in years record, because these run argued sentences were con- lack of remorse or the Defendant, currently. According jury mitigating failure to show other evidence was might favorably upon have looked more aggravating circumstance, a life an additional and sentence for the suggested crime of murder if its should return ineligible knew pa- Defendant would be for improper verdict based on considerations forty-nine years forty-two role for community’s grief outrage, instead of such as the and years. protect community, the need to jurors’ parents. concerns as asserts concur- rent sentences for crimes of kidnapping prosecuto When an issue of improperly jury’s CSP influenced the preserved by rial timely misconduct is ob impose penalty decision to death for the jection trial, at review we the trial court’s II, crime of murder. decision in Our Clark ruling on a claim under the deferential stan 492-93, 533-34, 118 N.M. only P.2d at discretion,” Stills, dard of “abuse of v. required impose the trial court to sentences ¶ 49, 125 1998-NMSC-009, noncapital for and to offenses inform the 51, because court “the trial is the best (at request) these sentences a defendant’s position significance any evaluate prior jury’s capital deliberations errors,” alleged prosecutorial Duffy, 1998- Moreover, offense. in this case Defendant ¶ NMSC-014, 46, 126 967 P.2d 807. request did not sentencing in consecutive the When the had opportunity trial court no court, trial nor has he shown that the concur- prosecutorial rule on a claim of misconduct sought rent imposed sentences for object because the defendant did not in a purpose weakening argument his manner, timely ap review the claim on against penalty. the death For these rea- peal for fundamental error. See State sons, agree we do not with Defendant that Peters, 1997-NMCA-084, 39, 123 N.M. sentencing unfairly his preju- for murder was 896; Rojo, 1999-NMSC-001, 944 P.2d cf. sentencing diced an error in his for kid- ¶ 55, 971 P.2d (noting napping CSP, attempted and we affirm “ concepts ‘the trial of fair and substantial his noncapital concurrent sentences these ” justice (quoting are identical’ this context offenses. Hennessy, 114 N.M. at 1370)). Prosecutorial misconduct rises to the

VII. level of error fundamental when it “so egregious” Defendant contends that persuasive some of the and “had such a prosecutor’s selection, during jury prejudicial jury’s remarks effect on the verdict that statements, opening closing arguments deprived the defendant a fair trial.” ¶¶ 1998-NMSC-014, deprived Duffy, 46-17, constituted misconduct Defen-

515 356, State, (1985); v. 101 Nev. 705 807; Rojo, Jacobs 132, accord 1999- 967 P.2d (1985). P.2d 438, 130 NMSC-001, 55, 126 P.2d 829. N.M. 971 ordinarily isolated, impropriety “is minor An acknowledge that the Although we {98} reversal,” v. to warrant State not sufficient appeal proper is not a prospect of reversal on ¶ 23, 123 413, Brown, 1997-NMSC-029, Caldwell, jury, 472 for a see consideration 494, fair trial is not a 941 P.2d because 330, 333, agree 2633 we 105 S.Ct. U.S. Moore, one, v. necessarily perfect see State any implicit the reference with State (1980); 1314, 503, 505, P.2d 1316 94 612 prospect in case did not amount this such 1998-NMSC-018, Henderson, v. State the given error the context of to fundamental cf. ¶ 20, 434, (“Judges 963 P.2d 511 whole, argument see Gon- prosecutor’s as controlling pro the in have wide discretion zales, 169, P.2d at 110 N.M. at 851. We is not them and a defendant ceedings before prose- jury understood the presume that the trial.”). perfect ordinary entitled to a according to their cutor’s words distinguishable from meaning. This case is alle- each of Defendant’s We review cases, the im- In those Collier or Jacobs. individu- prosecutorial misconduct gations of See was one of several. proper remark considering ally their cumula- in addition to State, 114 Nev. 960 P.2d v. Steese conclude, however, that the tive effect. We (1998) (concluding prosecutor’s that a alleged prosecutorial misconduct instances approach the level of “simply did not remark of funda- in not rise to the level this case do Collier”); in rhetorical excess discussed cf. they are regardless of whether mental error (10th Gibson, 195 F.3d Moore v. individually cumulatively. considered Cir.1999) prosecution’s (holding that the ,the jury’s jury regarding statements sentence, determining a death Ver- role Jury’s Responsibility A. its The trial[,] context of the entire “viewed the dict affirmatively jury regard- mislead the did not pros the Defendant claims that determining punish- ing responsibility for its improperly sug closing, argument ecutor’s Caldwell”). ment, not violate and thus did responsi jurors not gested to that, during jury Defendant claims impose the death for their decision to ble selection, prosecutor improperly vouched stated, “I’m not penalty. prosecutor and the strength the State’s case for the oh, well, you suggest, going to wink by appropriateness the death sentence anybody, have executed they never kill never detail, venire, in excessive about telling the v. anybody in See New Mexico.” Caldwell penal- experience with the death personal his 105 S.Ct. Mississippi, 472 U.S. mentioning police and the ty, (1985). The State re L.Ed.2d 231 thought “obviously” attorney’s office district timely did not make sponds that Defendant claims guilty. Defendant Defendant was remark, objection and that Defendant to this during vouching continued improper that the of context. See has taken the remark out prosecutor stated closing argument when the Gonzales, State v. penalty is a moral “the death his view that (1990). particular, the In ease.” verdict this very prosecutor’s next points out that agree with De We do not ap “I think we need to was that sentence unfairly prejudiced that he was though death sen fendant proach case as closing during ar out,” prose prosecutor’s statement and that the will be carried tence morality death gument regarding the gravity repeatedly emphasized both the cutor promptly sustained court jury’s penalty. The trial finality decision As objection that statement. replies Defendant’s argument. Defendant throughout his McGuire, P.2d at 110 N.M. at using a rhetorical prosecutor showing that the has been no device, “[t]here an im urging to consider objections sustaining of prompt trial eourtte disingenuously disclaim proper factor while jury failed to cure and admonishments to rely factor. See ing any intention to on that overreaching.” State, prosecutor’s 1126 the effect of 101 Nev. Collier omitted) (final addition, prosecutor complied quotation marks alteration ruling emphasize original)). court’s and did trial any Duffy, statement further. See 1998- We also conclude that the NMSC-014, 51, 126 N.M. 967 P.2d 807 prosecutor deprive did not of a Defendant (reasoning that the was not defendant de “obviously” fair when trial he stated that the improper prived of a fair trial when an state police attorney’s and the district office emphasized by prosecu ment was not the thought guilty. Defendant was While we tion). ruling The trial court’s on Defendant’s agree general the improp rule that it is objection was consistent with its earlier rul cases, prosecutors er for to vouch for their ing opinions religious that excluded the of Gershman, 10.5, generally supra, § see regarding morality leaders of the death persuaded prosecutor’s are not that the re penalty, sought to in which Defendant had case, context, marks in this when taken in mitigating troduce as evidence of a circum vouching prejudicial were the kind of that is stance. We conclude that trial court did enough deprive Defendant of a fair trial. regard

not abuse its discretion with to either during We that the note remarks were made III, ruling. 1999-NMSC-035, See Clark prosecutor inquired voir dire as the whether ¶¶ 28, 32, 128 N.M. P.2d 793. 990 jurors prospective presume could Defen respect With selec though they dant’s innocence even knew that tion, object we note that Defendant failed to had charged been with several many prosecutor’s of the Polsky, remarks he crimes. State v. Cf. Further, challenges appeal. now we do (Ct.App.1971) (noting 482 P.2d unfairly not believe that the were possibility prosecutor’s remarks that a belief prejudicial proper guilt may when viewed in con their defendant’s be from the inferred parties [prosecutor] text. Both with the diffi faced “fact that the files an informa jurors tion, getting prospective cult task of forcefully prosecutes then the de thereunder”). highly personal share them views about the purpose fendant of The this penalty during death inquiry identify jurors voir dire. Viewed in towas and exclude context, prosecutor’s this brief presume allusions who not could Defendant’s inno personal experience to his own with the of their knowledge cence because that he had penalty only death served as a means of charged been arrested and with a crime. facilitating responses prosecutor candid from the venire. emphasized pre The further prosecutor also sumption tried to facilitate such during closing argu innocence responses repeatedly emphasizing that his ment he when stated that: a case “This is unimportant, own views were that he was not Attorney’s [not for] District office to trying jurors persuade way on; one or the call you make the this is for one make other, right and that wrong- there guilt was no the call as to penalty.” and as to the questions circumstances, to his pen answer about the death per Under these we are not alty. The trial court has jurors considerable discre suaded that reasonable construe would in controlling process, tion prosecutor’s selection argument remarks as an III, 1999-NMSC-035, ¶ 20, see Clark 128 that guilty simply should find Defendant police 990 P.2d 793 conclude attorney’s and we because the and the district the trial court guilty, did not abuse its discretion or office think he is persuad nor are we deny impartial jury jurors Defendant an when it adopt ed that reasonable would a con prosecutor allowed the latitude in prosecutor’s some his of the struction remarks to elicit personal efforts the venire disregard members’ would cause them to the trial views about penalty. repeated the death See regarding Suther court’s instructions lin, (“In Gonzales, 111 N.M. at proof. State’s burden See intelligent III, for 851; order counsel to make use of N.M. at 793 P.2d at Clark cf. rights 1999-NMSC-035, ¶ 55, such as he [or in the selection she] has jury, usually he (rejecting [or is allowed she] P.2d 793 the contention that a questioning prospec considerable prosecutor’s implied latitude remarks that the death (citation [jury] mandatory). tive penalty members.” internal nothing indicating case bad Record “[t]here Not in the B. Evidence prosecutor in refer part faith on the the prose- Defendant contends prosecutor’s] ring open in [the witness argument closing in this case alluded cutor’s Fuentes, ing statement.” State record, and that these to evidence (Ct.App.1978). jurors’ unfairly per- appealed to allusions testify mother-in-law did as a jus- denigrated the criminal fears and sonal State, testimony and her did witness Gershman, supra, § system. See 10.6 tice guilt, provide some evidence Defendant’s (discussing reference to matters qutside although not contain exact state it did prosecutorial as a form miscon- record during prosecutor ment the his referenced duct). prosecutor’s to the points Defendant opening statement. during closing argument that “we’re remarks is to that evidence which admissible limited Finally, we do not find that {106} conviction,” for a and that “because we to ask deprived of a trial the Defendant was fair so, our individual liberties we’ve been cherish about “societal prosecutor’s statements a willing make a tradeoff ... that to societal dangerous may go people in trade-off’ which results, times, dangerous people ... often in protect free in cherished individual order to really they something when did going free context, liberties. in do not be Viewed we perhaps killing again.” Defendant also and suggested jury lieve these to the comments prosecutor that the referred to evi- asserts they to ignore responsibility that should their predicted not in the when he in dence record Rather, prosecutor’s apply the the com law. opening that the his statement State was appear of coun ments as a rebuttal defense present going to evidence that Defendant’s argument. had closing sel’s Defense counsel guilty thought mother-in-law he was or own jurors they “protectors the of told that killing capable of the victim. Defendant’s says ... all us” that “the of Constitution testimony provided such mother-in-law never people [are that not be convicted to] innocent during the trial. things they prosecutor’s for didn’t do.” The agree with Defendant We response argument acknowledged the to this prosecution improper it is for the to that importance principles of such constitutional jury the to matters outside the record refer unnecessary that it was but maintained make certain of “law and order” or to kinds jury guilty to not in’order the find Defendant Gershman, 10.2(a), §§ supra, appeals. See protect principles the evi to these because Viewing prosecutor’s the in 10.6. statements prove enough trial was dence admitted at context, however, they do not find that beyond guilt a doubt. Defendant’s reasonable trial in deprived Defendant of a fair this case. circumstances, prosecutor’s the Under these particular, prosecutor’s In statements did during, rebuttal were invited. See comments any imply specific that evidence was be III, 1999-NMSC-035, 52, 128 N.M. Clark jury, or ing concealed from the that there Gonzales, 793; 110 N.M. at anything or his about Defendant crimes that 793 P.2d at 851. We conclude prosecutor divulge wanted to but that of fair trial. deprive did not Defendant a implications, not. Absent such it is could logical prosecutor’s more to construe re Mitigating C. Lack Circumstances merely repeating, emphasis, with marks as of regarding trial court’s instructions lim- of Section 31-20A-5 the CFSA requirement proof burden State’s aggravating types its the circumstances jurors disregard evidence is felony jury may capital a consider a objection. subject aof sustained See UJI sentencing A failure proceeding. defendant’s Gonzales, 14-101, 1999; -102 NMRA circumstances, in any mitigating to show N.M. at 793 P.2d at 851. itself, aggravating not an circumstance is case, Further, it was mis under the this while a CFSA. prosecutor prosecutor violated Section predict that a asserts that the take for jury by arguing to the that Defen- particular piece pre would 31-20A-5 evidence be not, his to show in fact was dant’s lack remorse and failure it sented when mitigating forgiveness.” circumstances to words of other amounted After brief bench aggravating sup- prosecutor’s an circumstance followed additional conference that re- buttal, porting penalty. disagree jurors death We gave the trial court prosecu- limiting Defendant’s characterization of the following instruction: argument. tor’s Any suggestion you aas have express particular obligation some and 31- Sections 31-20A-2 verdict, opinion through your a case capital felony 20A-6 allow the defendant any carry message through your kind of sentencing proceeding present mitigating verdict, totally inappropriate. This ease jury’s for the circumstances consideration upon you must be decided facts that impose deciding whether to a death sentence. court, you have before not on case, mitigating In this upon any play your please ... desire a brief in which included allocution he ex carry public any out particular or to aim of pressed killing, remorse for the and the trial ... society. Deal with this case on its jury, at court instructed the Defendant’s re facts in the manner in I’ve which instruct- quest, it must consider Defendant’s you, putting your preju- ed aside bias [Defendant; “age; any remorse of the dices, deciding solely upon the case of circumstances the offense which are miti you’ve what heard. gating, anything which else would lead you penalty to believe that the death should Shortly given, this after was instruction imposed.” not Defendant be Once asserted jury retired to deliberate. circumstances, prosecutor mitigating was agree We with the trial court offer concerning entitled to a rebuttal that closing quoted arguments that above ¶ III, 52, 1999-NMSC-035, issue. See Clark they improper inasmuch attempted as 119, 128 N.M. 990 P.2d 793. We construe persuade to reach verdict a based prosecutor’s about remarks Defendant’s prejudices jurors on biases or to which the lack of remorse and failure to show other may susceptible have of been because their mitigating attempt evidence as an to rebut experiences parents par as or members of a mitigating Defendant’s assertion of circum community religion. ticular or 14- See UJI stances. We do not view such rebuttal as 101. We trial admonish counsel for both additional, attempt an to create an nonstatu arguments sides to confine their remarks to tory aggravating For circumstance. these presented based on the evidence in the cases reasons, the State’s rebuttal did not violate conclude, however, before them. We that deprive CFSA Defendant of a fair the trial court’s “curative was suf instruction trial. any prejudicial ficient to offset effect due to [lawyers’] erroneous statement[s].” Improper D. Other Considerations Sellers, State v. 117 N.M. 875 P.2d Defendant contends that it 400, (Ct.App.1994). Reviewing 406 all of the prosecutor argue for misconduct argument in closing “comments made in the that the return should its verdict based context which so that occurred improper such as considerations “commu gain may understanding [C]ourt full of the nity outrage,” society’s right grieve, potential comments and their effect on the we, parents, fact that “this is the stuff that as Baca, jury,” 1997-NMSC-045, 42, State v. children,” fear for our and the need for “a 55, 1066, 124 N.M. 946 P.2d we determine message you stern from this conduct prosecutor’s deprive that the remarks did prosecutor won’t be tolerated.” The made trial, Duffy, Defendant a fair see 1998- during these remarks rebuttal his of Defen ¶¶ 46-47, NMSC-014, 967 P.2d closing argument penalty phase dant’s in the closing trial. argument Defendant’s religious theme, had a with remarks about VIII. leaving Defendant’s “in life God’s hands” be long ago, cause “a time man pro died on a cross asserts portionality [and] His final His words about killers were review under 31-20A- Section 31-20A-6(A) unconstitutional, 4(C)(4) of the is unconstitutional CFSA of the CFSA III, 1999-NMSC-035, expand ly vague, the universe see Clark Court should (4) ¶ 68, proportion comparison our N.M. 990 P.2d 793 eases used for review, 31-20A-6(H) ality and that Section 31-20A- of the unconsti CFSA Section 4(C)(4) death sen requires reversal of his tutionally who penalizes defendants exercise it “is excessive or in this ease because tence silent, rights to remain their constitutional penalty imposed disproportionate to the counsel, and receive obtain the assistance expressed For the reasons similar cases.” fair trial because it lists defendant’s ¶¶ 74-76, III, 1999-NMSC-035, in Clark mitigating with authorities as a cooperation reject P.2d 793 we Defen N.M. III, .circumstance, see Clark 1999-NMSC- argu argument and his dant’s constitutional (5) ¶ 69, N.M. 990 P.2d 793 and to be regarding the universe of cases ment the constitutional the CFSA violates conducting proportionality our considered punish prohibitions on cruel and unusual III, opinion in Clark review. Our recent Const, VIII; ment, see U.S. amend. ¶¶ 1999-NMSC-035, 78-83, 128 N.M. (as II, 1988), art. amended be Const. sufficiently outlines the rele 990 P.2d 793 equally effective means cause less drastic and purposes of our comparison cases vant committing deterring people from murders under 31- proportionality review Section available, III, see Clark 1999-NMSC- are 20A-4(C)(4). Like the crimes issue ¶¶ 61-62, 990 P.2d 793. ¶ 78, III, 1999-NMSC-035, Clark Thus, arguments Defendant’s re none of comparison cases constitutionality of the CFSA garding the ¶¶ 79-80, therein, cited see id. of his death sentence. warrant reversal mur crime involved a willful and deliberate portion opinion, we address the next jury aggravating found the der which a remaining issues. Defendant’s murder a witness and circumstances of kidnapping. murder in the commission of III, at issue in Clark 1999-

Like the crimes IX. ¶¶ 119, NMSC-035, 81-83, N.M. 990 128 that this Defendant contends {113} miti P.2d 793 the evidence of Defendant’s meaningful appellate perform a Court cannot compelling gating is not circumstances reasons, parties’ of his case because the com review a child. For these his victim was during cer with the trial court that Defendant’s death sentence munications we conclude cannot be heard on disproportionate to the tain bench conferences is not “excessive or to record the penalty imposed tapes in similar cases.” Section that were used the audio 31-20A-4(C)(4). that agree. While it is true trial. We do not may have conferences some of bench challenging the consti addition {112} record, the trial inaudible or off the been tutionality un proportionality of our review rulings to ensure that its court was careful CFSA, argues Defendant der the audible man stated on the record an other CFSA is unconstitutional several parties oppor with an provide and to ner arguments were respects. All of Defendant’s objections in a similar tunity to record their reject addressed in Clark III. Therefore III, Further, 1999- manner. as Clark (1) arguments: that the CFSA ¶ 119, NMSC-035, 56, 990 P.2d 793 128 N.M. give jury proper guidance about fails to provide specific references fails to weigh aggravating circumstances how to may gaps in any inaudible the record circumstances, against mitigating see Clark Martin, appeal. v. 90 prejudice ¶ his State 66, 128 119, III, 1999-NMSC-035, N.M. Cf. 524, 527, (Ct.App. 565 P.2d N.M. (2) that makes effective P.2d 793 the CFSA 1977) (appellate courts will not search impossible because it does appellate review preserved where if an issue was record to see findings specific require the to make appropriate provide did not the defendant circumstances, mitigating see Clark about references), ¶ on part overruled in 1999-NMSC-035, transcript III, 67, 128 N.M. Wilson, 116 N.M. (3) grounds other significant the term “no P.2d 793 (1994). 793, 796, There- activity” in history prior criminal Section fore, provide trial). this issue does not a basis for tion did not affect the outcome of the Therefore, reversal. we conclude that the record on appeal provide does not a basis for remand Defendant also contends that ing the issue of ineffective assistance to the his trial counsel rendered ineffective assis Martinez, 1996-NMCA-109, trial court. Cf. by failing timely objections tance to make ¶ 25, (expressing 927 P.2d 31 regarding jury selection or the admission “preference corpus proceedings for habeas argument prevail evidence and at trial. To appeal over remand when the record on does claim, prove on this Defendant “must prima not establish a facie case of ineffective defense counsel did not exercise the skill of a Baca, counsel”); assistance of 1997-NMSC- reasonably attorney competent ¶ 059, 25, (simi 124 N.M. 950 P.2d 776 incompetent representation prejudiced the lar). case, rendering defendant’s the trial court’s Finally, we address Defendant’s Lopez, results unreliable.” State v. 1996- claim that he denied a fair trial. We ¶ NMSC-036, 25, 122 920 P.2d 1017. have noted on several occasions that a fair question On the whether De See, necessarily perfect trial is not trial. fendant’s trial counsel exercised the skill of a Moore, e.g., 94 N.M. at 612 P.2d at 1316. reasonably competent attorney, the record single trial, No instance of error in this nor appeal objected shows that counsel the cumulative effect of the errors we have prosecution’s argument evidence and fre identified, justify reversal. doctrine of quently effectively throughout the trial. See, applicable. cumulative error e.g., is not object every objec “Failure to instance of Foster, 1999-NMSC-007, 59, 126 N.M. argument] tionable evidence [or does not ren 974 P.2d 140. ineffective; rather, der counsel failure to ob ” ject within ‘falls the ambit of trial tactics.’ X. Martinez, 1996-NMCA-109, ¶ 26, State v. There was sup- sufficient evidence (quoting 927 P.2d 31 State v. port Defendant’s convictions and sentence. Rodriguez, The trial selecting court did not err in (Ct.App.1988)). appeal, “On this Court instructing sentencing or in Defen- guess will not strategy second the trial dant. No other claim supports of error re- tactics of the defense counsel.” Churchman versal. We affirm therefore Dorsey, 1996-NMSC-033, 18, v. 122 N.M. sentence and degree his convictions for first 1076; 919 P.2d see also v. State Richard murder, kidnapping,

son, attempted and CSP. 114 N.M. 823 (“[A] (Ct.App.1992) prima facie case is not IT IS SO ORDERED. {119} plausible, made when a strategy rational or explain tactic can the conduct of defense BACA, SERNA, MAES, JJ., concur. counsel.”), Baca, quoted approval in FRANCHINI, Justice, (Special 1997-NMSC-059, ¶ 25, 950 Dissent). Concurrence and Partial P.2d 776. specially I concur in the Court’s {120} Further, inasmuch as we {116} al opinion affirming the convictions of the de- ready have concluded that Defendant was 11(H) I fendant. dissent from Section re- unfairly prejudiced by the selection of garding Impact “Victim Evidence.” jury, evidence, the admission of or the prosecutor’s here, My remarks at issue Defen concurrence most of the ma- {121} dant has degree prejudice not shown the jority’s opinion special my because of required prima for a strong personal facie case of philosophical ineffective opposition Lopez, assistance of counsel. penalty 1996- my strong death personal Cf. ¶¶ NMSC-036, 25-26, 920 upon belief that it a seriously is based flawed (concluding 1017 public that a policy. defendant did not expressed The reasons I have establish that prejudice he suffered my special when his concurrence in Clark are un- attorney’s object failure changed. to a instruc- implicates in majority phrase post “ex facto” its literal opinion I dissent from

{122} meaning any passed law “after the fact.” admissibility impact of victim 11(H). However, my opinion recognized have “that the It is that this courts in Section post admitted dur- prohibition not have been on ex facto evidence should constitutional penalty phase only of this ease and ing applies penal the death laws statutes which dis- requires a remand to the advantage that its admission them.” the offender affected sentencing hearing. for a new Youngblood, trial court Collins U.S. (1990). 2715, 111 L.Ed.2d 30 S.Ct. I. EX POST FACTO Thus, pend while Allen’s case was {126} majority acknowledges, this As the facto, ing, Legislature passed, post ex his crimes in 1994 defendant was arrested for 31-26-4(G), permitting Section victims to date of New Mexico’s before the effective sentencing. make statements at These stat II, right art.

victim’s laws. See Const. procedural evidentiary utes introduced 24(C) (1992) (requiring implementing legis § disadvantages that Allen did not face Rights Amendment be lation before Victim’s I at the time the crime was committed. effective). given A must be came defendant strongly application believe the of those stat detriments, benefits, as well as suffer the II, utes to this case violates Article Section and to which he is of the law as it existed IV, and Article Section of our Consti subject The effec at the time of the offense. tution. implementing legislation tive date of relevant N.M.Laws, January 1995. See IN A DEATH PENALTY II. TESTIMONY 144, § (implementing Victims of Crime ch. CASE (1994, Act, §§ -144 31-26-1 to NMSA Felony Sentencing Capital A. The Act amendment)). majority The prior to 1997 my opinion important, it is More be to hold that this defendant should seems impact testimony pen- in a death by that victim subject punishment provided to the full exists, alty under New Mexico case is not allowed law, it rather as hold now it law as it now exists or as existed he applicable than the law that was when crime. committed the 31-20A-2(A) (1979) 1978, § NMSA Felony Sentencing pro- strongly disagree. Capital Mexi Act I New that, provides act of the vides that: “[n]o co Constitution right remedy legislature affect the or shall sentencing Capital A. deliberations shall change party, or the rules of evidence either guided by following considerations: be procedure, any pending case.” N.M. (1) aggravating circumstances whether (as 1960). IV, art. amended Const. [31-20A-5 exist as enumerated Section legislation implemented 1995 the act; of this 1978] NMSA changed Rights Amendment

Victim’s (2) mitigating circumstances whether procedure penal rules of evidence and [31-201A- as 7 exist enumerated Section ty phase this case while this case was act; 6 of this and 1978] NMSA pending. To now affirm the admission (3) mitigating circum- whether other impact victim evidence under Section 31-26- stances exist. 4(G) IV, is a direct violation of Article Sec specific factors The Act enumerates {129} 34, tion of our Constitution. expressly mitigating, and then states that are Moreover, the admission of victims’ {125} not exclusive. It that the enumerated list is phase of a murder penalty to the statements ag- specific factors that are also enumerates operates disadvantage of the de trial to the and, mitigating gravating unlike the list of violates our constitutional fendant. This circumstances, that list is exclusive. post Arti prohibitions against ex facto laws. jury’s The Act is careful to cabin {130} states, II, 19, cle of our Constitution Section analysis of these factors: ... be enacted post “No ex facto law shall aggravating circum- weighing After by legislature.” also Const. art. See U.S. circumstances, (same I, mitigating prohibition). § Latin stances and 10 The 522 other,

weighing against them each victions whether or not such conviction or considering both the defendant and the violence, convictions involved a crime of crime, jury judge shall determine presence activity or absence of other criminal whether the defendant should be sen- by the defendant which involved the use or imprisonment. tenced to death or life violence____” attempted use of force or 31-20A-2(B). (West 1999). Section § Cal.Penal Code 190.3 require The Act does not that the It should be though noted that even jury weigh aggravating mitigating Legislature opportunities has had several abstract; circumstances in the it directs the Capital Felony to amend Sentencing Act perform weighing in the context after our Rights Victim’s Amendment was of both the defendant and the crime. It does passed put January into effect in not, however, pick allow the addition- reach, it has not done so. The conclusion I crime, al features of the or facts about the therefore, is that the Rights Victim’s Amend defendant, weigh them in the balance as apply ment and Act sentencing to traditional course, aggravating additional factors. Of proceedings, penalty proceed but not death the extent that the crime or the defendant ings. The substantially sentence of death is may present mitigating features, they would final, different in requiring that it is specifi weigh be free to those in the balance. The cally tailored I scheme. note that the United argues contrary says to the when it Supreme States Payne Court in v. Tennes that “the past defendant’s character and see, 501 history U.S. 111 highly criminal are S.Ct. 115 relevant and im- (1991), portant by vote, capital evidence” L.Ed.2d 720 a 5-4 sentencing held that hearing. be, might However true impact if this victim per se barred writing slate, Court were on a blank by it is Eighth Amendment to the United clearly Legislature not what the envisioned States Constitution. I note also that our Capital Felony when it crafted the Sentenc- Payne. statute was written before There ing Act. fore, it is reasonable to assume that our Legislature intended the rule that victim im Act The enumerates that “the defen- pact pen evidence is not admissible in death significant history dant prior has no crimi- alty cases New Mexico. See Booth v. activity” mitigating nal aas circumstance. Maryland, 31-20A-6(A) (1979). U.S. 107 S.Ct. § NMSA Con- (1987), L.Ed.2d however, spicuously, “significant” South Carolina v. history Gathers, prior history criminal 490 U.S. aggravating is not an S.Ct. (1989), circumstance. L.Ed.2d 876 Payne, See NMSA both overruled 31-10A-5 (1981) 808-09, (setting out aggravating circum- U.S. at Leg S.Ct. 2597. The stances). asymmetry This creates an change which islature made no in our statute after the State seeks to claiming Payne redress although many opportuni it has had prior crimes of the defendant are “relevant” ties to do so. Other courts have held that jury’s sentencing decision, and that statute, penalty their state passed death dur light are require- admissible ing Payne, Booth and before could not have 31-20A-2(B) ment in Section to consider intended to impact include victim evidence as “both the defendant and the crime.” part penalty See, of a proceeding. death e.g., Metz, Or.App. State v. problem argu- with the State’s (1994) (when Oregon’s 801 penalty death ment legislature might is that while a deter- enacted, law, statute was Booth was the con mine that a prior history defendant’s criminal sequently legislature reason, could not have envi proper is a in some circumstances at least, sioned or impose Oregon’s penalty to intended death penalty, death in New Legislature permit impact evidence); scheme to victim Mexico our has not done so. accord, contrast, State, states, 96, the California Smith v. 919 Penal Code S.W.2d 102 “In proceedings question [capi- (Tex.Crim.App.1996), on the by Mosley overruled v. penalty, State, may 249, tal] evidence presented be ... 983 (Tex.Crim.App. S.W.2d 261-62 any 1998) as ... prior felony to conviction or (relying upon Payne). con-

523 2733; Henderson, Legislature’s complete The failure 655, 663, State v. 109 N.M. {135} (1990)(because 603, impact Capital victim evidence in mention 789 P.2d 611 death is the Felony Sentencing penalty, Act is understandable. ultimate discretion must be is, suitably channeled, That kind of evidence as this case demon directed and so that the strates, highly passionate arbitrary capricious risk of and emotional. and actions is Legislature specifically minimized), has grounds instructed overruled on other Tansy, 493, this Court to hold a death sentence if Clark v. invalid 118 N.M. at 882 P.2d at “the imposed sentence of death was under potential penalty, 'When death is a passion, require prejudice any greatest possible influence of or precision in the 1978, arbitrary other process. penalty factor.” NMSA 31- “The qualita- of death is 20A-4(C)(3) (1979). Indeed, tively point any sentence,” the whole different from other penalty sentencing of death objectively consequently procedures is to must dem- jury’s channel the greater degree determination of who shall onstrate “a reliability when live and who shall v. Stephens, die. Zant 462 the death imposed.” sentence is Lockett v. 862, 876-77, 2733, Ohio, 586, 603, U.S. 103 S.Ct. 77 L.Ed.2d 438 U.S. 98 S.Ct. 57 (1983); Clark, 288, 308, (1978); 235 v. Henderson, L.Ed.2d 973 see also (1989), sentence N.M. at vacated on 789 P.2d at 607. penalty Death grounds by other v. Tansy, sentencing procedures Clark cannot allow “a sub- 486, 495, (1994). Every P.2d stantial penalty risk that the [death will] be objective, care must be taken arbitrary so that inflicted in an capricious mean man- ingful Lockett, distinctions are drawn between ner.” who 438 U.S. at 98 S.Ct. 2954 lives and who dies. (quoting Gregg Georgia, Passion does not mean 428 U.S.

ingfully distinguish (1976)). between cases. 96 S.Ct. 49 L.Ed.2d 859 It “is importance any of vital ... decision to recognizes power The State be, impose the death appears sentence impact victim precisely evidence. That is be, based on reason rather caprice than why fights it so hard to introduce it. It is Florida, emotion.” Gardner v. 430 U.S. unquestionably powerful emotional evidence 357-58, (1977). 97 S.Ct. 51 L.Ed.2d 393 appeals sympathies to the or emotions of jurors. But the highly “[e]vidence that serves When emotional evidence purpose appeal no than sym- other family introduced, from bereaved members is pathies jurors or emotions of the has never danger there is a that verdicts become arbi- been considered Payne, trary admissible.” improperly passion. based on A 856-57, (Stevens, J., U.S. 111 S.Ct. 2597 recognized number of state courts have dissenting). Legislature If our even consid- their statutes do not authorize the admission ered the impact evidence, admission of victim impact evi- of victim or that such evi- unlikely dence —a highly possibility relevant, because dence is not and should not be a prohibited Booth part such evidence of rational jury’s scheme to channel a time —then it imagine is sentencing difficult what the generally decision. See State v. Legislature Atwood, intended to (1992); exclude invalidat- 171 Ariz. 832 P.2d 593 ing imposed Carter, (Utah a death 1995); sentence under the in- State v. passion, Smith, prejudice, 96; State, fluence of or other arbi- 919 S.W.2d Mack v. trary (Miss.1994); factor. So.2d 1324-25 Bivins v.

State, (Ind.1994). 642 N.E.2d 928 purpose Capital Felony B. The These cases are consistent with the Sentencing objectively Act Payne majority’s holding question that the jury’s determination, channel the impact whether to admit victim evidence is open penalty death determinations Payne for states to decide. does not hold to an emotional free-for-all that states must admit such evidence. “We penalty Death sentencing today statutes do not hold impact victim meaningfully admitted, that do not objectively must be or even that it should be jury’s channel the determination merely are uncon- admitted. We hold if a State Zant, stitutional. at permit U.S. 103 S.Ct. decides consideration of this evi- Yes, walking to the And I started per A: sir. dence, Eighth erects no Amendment ‘the ” house, halfway I got I there and Payne, 501 U.S. S.Ct. and about bar.’ se said, J., (O’Connor, concurring) (quoting ma- I —I I can’t. I’m— just stopped and daughter go in tell her that her jority opinion). cannot and that. he said he dead. I cannot do So is Prejudice in this Case C. went into the house. do it. We would appointment an with Mr. Darlene had view, contrary my and time, think it at the so she didn’t Cheverie impact evidence majority opinion, victim there, strange that he was and she was and warrants case was excessive this support I there for be- thought that was sentencing .hearing even under new going she was to talk cause she —because victim im- Payne standard. Portions of the my input. So it him and I could have which, my testimony, opinion, far pact up. strange showed to her testimony un- wasn’t tolerable the limited exceeded in, greeted she us—her walked and Payne, follow: We der us, greeted Bill and —and we are smil- and Phillips family, Laci A friend of the instantly kind of looked ing she and —and Minor, family’s efforts to find described the me, “What? What and she said related that Darlene missing girl. She her wrong?” And so Mr. Cheverie told evening her Phillips called her body. had found Sandra’s that, after a daughter disappeared, and Phillips talk sleepless night, helped she Ms. Q: Darlene react? How did day. described police the next She any Probably like mother would react A: away Flagstaff, up posters as far as putting somebody them that their tells whenever Prescott, Holbrook, pros- and Phoenix. body daughter’s has been found. She— her: ecutor asked Deputy Q: did she do to Cheverie? What Q: Okay, those —those six and how were chest, hitting in the started him A: She waiting? weeks why asking him started who and she just They was A: were horrible. We—it Darlene ran and then she went outside. okay or knowing if she was horrible not outside. Every phone was. time where she jumped. hoped that she rang, we We—we Q: you followher? Did somebody call. call or that would would Yes, sir, stayed My I A: did. sister every lead that she Darlene tried to follow Bill, and Mr. the house with Cheverie people possibly talked to could. She —she outside with’ Darlene. And she I went them, if she every day. If she had to call running was around the drive was—she go and would walk had to out on the street crying. try I way, And would and she carry just people, talk to around and her, try hug touch her and to —I would you picture say, “Have seen around and me no. And she was and she would tell Billy girl?” point her and went At one screaming, neighbors yelling and the psychic. talked to a We— to' Colorado and I coming out of their houses. And started day. got up every every We we—we lived go finally got her to back inside. And she slept. But day went to work. We and we picked up into the house and she went life, it for six weeks. wasn’t handed it to And phone, and me. cordless eliciting, in con- “Now, The State ended said, you have to call Steven she detail, Phillip’s reaction to siderable Darlene him Phillip’s and tell brother] [Sandra Mi- daughter’s her death. Ms. news of phone I took the his sister is dead.” So call at emergency phone Steve, nor an received I’m I called sure outside and work, at the telling her to meet Sheriff wrong in something was that he knew Phillips’ Deputy Chev- house in 15 minutes. picked up phone, be stantly he when her, “Now, you go in and said, erie told have to “Steve, I this is Laci Minor.” cause said, said, tell Darlene.” wrong?” I he “What’s And And get plane ticket and you’d “I think better Q: standing [Deputy] You Jim Sandy’s found and get here because been Cheverie outside the house? you.” she’s dead. And we need And I children and —and cousins. IAnd also feel hung up phone just with him I away like very he took person wonderful friend, started —I called Darlene’s best who giver would have been a care to our Williams, please Carol and I asked her to community, who given would have back. come as soon as she could because we nurse, She would have been a she would my I parents. needed her. called I called nurse, good have been a and she would many people just as Ias could think of so taking have been people. care of they help could me take care of Dar Q: How has Darlene been since the lene and Bill. And then I—we started call time —since the funeral? ing Phoenix, relatives and we start A: Darlene is on a constant roller coaster making arrangements ed—I started travel giver emotions. Darlene’s a care get everybody my so we could here. And she long has been for a time and she is got pillows sister and I went and beds and unable, life, for the first time her whole My parents and blankets. and the somebody, care for who’s herself. Ev- Williams went to Sam’s Club and ery day goes hospital she to the and she bought everybody food for who was com people takes care of dying, who are but ing. community instantly We—the started dying she’s inside and she can’t take care bringing beds, things blankets, tables, — Every day herself. people talk about night food. And later that I went to the they’re cures for trying diseases that airport picked up grand Steve and his find, well I wonder what about the cure aunt, grandpa ma and and his who had for our hearts and our souls and our —the flown from Phoenix. IAnd took them there, put holes that have been and the instantly got home. And Steve out of the loss that we suffer. What about cure for car1before I stopped. even had the car He that? How supposed is Darlene to take jumping just was out and he ran in —he care of herself now? And take care of house, grabbed and he his mom. And people. other kept She —she Darlene’s— we had a—an entire week like that. me, kept Sandy’s excuse she exactly room Q: been, funeral, How has it since the it, time, how longest she left for the be- Steve? me, Sandy’s going cause she would tell A: open Steve is not a man of emotions. just come home and I want her room to be certainly going He’s to sit around and like she left it when she comes home. people tell how he gone feels or what he’s Q: Is that after the funeral? through happened since this has to him Yes, A: sir. because no matter happened what has Q: long How keep did she —did she him, feels, and no matter what he it can’t Sandy’s way room the it was? compare to what —what his sister went say A: I would until late summer of this through February 7th. year. Q: responsible any Steve feels like he’s nothing further, I STATE: have Your way? Honor. A: extremely guilty. He feels guilt Ms. Minor had also described her that he destroyed feels has almost him friendship Phillips, with Sandra based on because he’s the one who went cheerleading their mutual love of and ani- picked up restaurant and his sister. He Sandy’s pet mals. She described love of her going bring her home to his mom. iguana. Sandy’s plan She described for the And he feels like if he would have never future: picked up, her she would still inbe Phoe-

nix and she’d still be alive. And he feels [S]he discussed with me how she also anger anybody possibly mom, could do this wanted to be like her and she want- baby only to his sister. Not did he take got really ed to be a nurse. So we excited away daughter. away a sister and He took plan because we had this whole worked out grandbabies Sandy given would have go nursing where we could school to- away Darlene. my gether He took an aunt to and we could take the classes to- family’s pain: to something I about the study together. do gether and we could view, my by In silly, a death verdict. mean, kind of but return it sounds Sentencing Capital discussing neat it of the New Mexico how terms being girls and Act, inflammatory emotionally com together. this hang out would be to testimony See pelling was admissible. closing penalty at the In his rebuttal 13, 14, 18; II, §§ U.S. art. N.M. Const. (rather ended his phase, prosecutor VIII, V, amends. XIV. Const. short) argument with: parents in fear that leaves This is the stuff impact victim The State’s them, “Don’t take and tell glimpse for our children passing of was more than a accept candy strangers; don’t rides from A life and the sorrow survivor. victim’s story of strangers.” The Sandra place from gut emotion has no appeal “dramatic to our Phillips Zant, that we can tell is the stuff v. 696 F.2d in the Hance courtroom.” grandchildren (11th because it is Cir.1983), children or our overruled on other every parent. agony the horror of Kemp, 762 F.2d grounds by Brooks v. (11th Cir.1985). my opinion, for anguish: He talked Darlene’s about above, present- reasons set out State’s Darlene as she watched that vid- You saw requires impact evidence ment of victim eo, watching you have been her must hearing unnecessary sentencing free of new her, you And heard expressions. facial prejudice. passion provoke to unfair certain just ... It testified she was when she first God, space. I stared off into natural. She otherwise, I majority holding The Laci, her. You heard from miss Laurie — 11(H) respectfully from Section dissent suffered, sorry, and the I’m what majority opinion. on, beating going Darlene on Jim horror. chest; running then around Cheverie’s neighbors came out. The

yard until the any tragedy natural grieving process is people especially young are involved. when you, right to Society, I has the submit you, grieve expect I nor also. don’t 2000-NMCA-005 you, to feel what Sandra should I ask of terror; died, that Phillips felt before she family Phillips suffered after or what the COMPANY, GOLDEN OIL society right her death. But has Plaintiff-Appellant, right And it grieve. It has a to mourn. right grieve and mourn its has a COMPANY, INC., CHACE OIL particular You have verdict case. Defendant-Appellee. express your indignation of right your verdict. There’s this awful act 19,825. No. carefully nothing wrong consid- Appeals of New Mexico. Court of community outrage. expression ered Indeed, community/society outrage in this Dec. so, appropriate. case is so Because precious thing you saw that video and light eye replaced. can never be her

No, replace of death will that. but verdict back; bring there

Nothing Sandra but will justice, guilty. is still a verdict reading the emotional Just testimo- ny painful. The effect on of Laci Minor present in jury, the room when who spoke, was not

she is incalculable. observer, being just passive it was asked

Case Details

Case Name: State v. Allen

Court Name: New Mexico Supreme Court

Date Published: Dec 1, 1999

Citation: 994 P.2d 728

Docket Number: 23,493

Court Abbreviation: N.M.