State v. Cheadle

Mexico, of New STATE

Plaintiff-Appellee, CHEADLE,

David Leon

Defendant-Appellant.

No. 14177.

Supreme Court of New Mexico.

Nov. 1983.

Rehearing Denied Dec. 1983.

Stay Granted and Mandate Recalled

Jan. Denied, 16,1984. April

Certiorari

See 104 S.Ct. 1930.

OPINION RIORDAN, Justice. (Cheadle),

David Leon Cheadle was con- victed of murder degree in the first for which he received a sentence death. Cheadle was also convicted of kidnapping degree in the first for which he received years imprisonment, nineteen kidnapping degree the second for which he received years ten imprisonment, two counts of arm- robbery degree ed in the second for which years imprisonment he ten received for count, each and criminal penetration sexual degree in the second for received years imprisonment. four appeals. We affirm. on appeal issues are:

I. deny- Whether the trial court erred in ing Cheadle’s to motion strike certain iden- testimony. tification II. Whether the trial court erred in re- fusing grant immunity to a defense wit- ness.

III. Whether the instructions used sentencing for inconsistent con- thereby fusing providing inadequate stan- deciding dards to use in be- penalty imprison- tween the death and life ment.

IV. Whether Cheadle is entitled sentencing proceeding new because one the two circumstances sub- justified by mitted to the evidence.

V. Whether Cheadle’s sentence of death as should set aside excessive and/or disproportionate under the circumstances. Capital

VI. Whether New Mexico’s Fel- ony Sentencing Act, Sections through (Repl.Pamp. 31-20A-1 31-20A-6 1981),is unconstitutional because Defender, Clow, Public J. Janet Chief penalty punishment. is cruel and unusual Sullivan, Defender, Appellate San- Thomas (Goodwin) Leslie Goodwin testified Fe, defendant-appellant. ta 10, 1981, September approximately on Kelly, Albuquerque, C. counsel. Leo trial a.m., (Nava) 2:15 she and Gabe Nava left Gen., Bardacke, (Ned’s), El Atty. Anthony Albuquer- Paul Tu- Ned’s Portal bar Fe, Gen., pler, Atty. plain- que, They Mexico. over to Asst. walked Santa parking tiff-appellee. there in Nava’s car and stood respect suppression The test with approached them talking. Cheadle lot photographic stated, of out-of-court identification “Come branishing gun. Cheadle * * * is “whether the ‘photographic you you kill I will identifica go, let’s on impermissibly sug procedure was so tion waving don’t,” a silver-colored and then give very gestive as to rise to substantial in which direction gun instructed them irreparable likelihood walking a short distance After proceed. ” Nolan, buildings, misidentification.’ Cheadle stopping between 472, 476, (Ct.App.), N.M. to stand fac- and Goodwin instructed Nava 604 P.2d 821 building “spread in a ing the the wall of (1979) (citations omitted.) determine To eagle” with their backs to Cheadle. position this, the we must decide whether under they money which then demanded Cheadle “totality of the circumstances” the identifi then instruct- gave to him. Nava was both reliable, even if the confronta shirt, cation was jeans off his which ed to take Manson, suggestive. was tion were then ordered did. Nava and Goodwin Brathwaite, Commissioner the Correction ten to twelve feet down to move about 53 L.Ed.2d fence, 97 S.Ct. again They to a when alley. moved Manson, v. Nolan. Cor the put their hands on they ordered to were Brathwaite, the rection Commissioner “spread eagle” posi- in a fence and stand Supreme set forth five United States Court Goodwin to then ordered tion. Cheadle weigh deciding whether out of time, factors to At about that her clothes. remove suggestive: identification was court first time. Nava for the shot Cheadle * * that re- again demanded Goodwin Cheadle 1) *. opportunity The to view * * that he and told her move her clothes 2) degree of *. The attention complied. not. kill her if she did She would * * 3) *. accuracy description The Goodwin, rape attempted to then Cheadle * * 4) certainty *. The witness’ level of get erection. Goodwin could not an but 5) the crime and the The time between back put her clothes then instructed * * *. confrontation time, Nava a that Cheadle shot on. At at Id. at 114 & 97 S.Ct. ordered Goodwin time. Cheadle second arriving Upon at to Nava’s car. back photo- were shown a Four witnesses car, got. into the front then Nava’s array pictures six graphic of five or driv- over to unlock the seat and reached Cheadle, picture after Cheadle’s included ran and Goodwin er’s door Goodwin. newspa- and in the had been on television car, explained police stopped passing a person responsible for Nava’s per, as the description of happened gave a what killing. police. offender to the the apply will first this test Good We morning gun- from Nava died later that she saw Chea Goodwin testified win. the head. shot wounds to clearly. also testified dle’s face Goodwin incident, during the she

that at times Cheadle, face, directly to face at talked Testimony. I. Identification gave a de distance of inches. Goodwin Identification A. Out-of-Court the offender at the scene scription of Albuquer Putman of the identifica- later to Officer to “strike the Cheadle moved photo Department, the que Police before The basis of the witnesses.” tion of all hospital, At graphic identification. the identifications motion was that array photographic had was shown a witnesses Goodwin unreliable because picture. not contain Cheadle’s to the which did picture furnished Cheadle’s viewed array, told the Upon viewing Goodwin they made police before media the assailant was lineup police officer that photographic from a identification - following day The among pictures. The trial court the in-court identification. incident, from the after she was released the motion. denied hospital, two friends testified court Goodwin identification per- of Cheadle as the they stopped by Goodwin’s home. son he saw in Ned’s the Nava was broadcast, During news Goodwin saw killed. picture on Cheadle’s television. She told last witness who identified Cheadle friends, “Oh, her my except him God that’s from a photographic array was Eobert got picture.” he’s an afro Goodwin Mayes (Mayes). trial, Mayes At testified immediately police Ap- called the station. about and person identified as later, proximately days picked six Goodwin who came apartment to his days few picture Cheadle’s photographic from a ar- murder, before the Nava money, demanded ray picture contained of Cheadle that and fired three shots him with a chrome was different from the one shown on tele- plated pistol. Mayes automatic identified trial, posi- vision. At the Goodwin made a a photographic Cheadle from array after Cheadle, tive in-court identification of as picture appeared Cheadle’s newspa- the man attempted that killed Nava and per; however, he testified that identifi- his rape her. cation of Cheadle recog- was from his own (Jones), patron Julie Jones a at Ned’s the concerning night nition the the shooting of night incident, also identified Chea- apartment. at his dle. Jones testified that sit- Cheadle was ting at the bar when Jones walked over to determining whether there has the to speak approximately bar to Nava at been process a violation of due in the con something 1:15 a.m. Cheadle said to her confrontation, duct aof we must look to ignored. Jones, hairdresser, which she a totality the of the circumstances. State v. particularly remembers Cheadle because of Torres, 521, (Ct. 81 N.M. P.2d 166 469 style. his slicked hair September back On App.), 506, cert. N.M. 81 1981, 14, picture a seeing after of Cheadle (1970). record, 151 examining After the we television, pic- on picked Jones Cheadle’s find that the court err in trial did not trial, photographic array. ture from a At allowing the out-of-court identification tes positively being Jones identified Cheadle as Manson, timony. Correction Commis night in Ned’s of the incident. also She Bruthwaite; Gilliam, sioner v. State 83 picked that when testified she Cheadle’s 325, (Ct.App.1971). N.M. 491 P.2d 1080 picture photographic array, from the she only relying was on what she saw at Ned’s B. In-Court Identification evening of incident. In-court identification which is inde (Gaddis), Ken manager Gaddis of pendent by extra-ju of and not tainted Ned’s, also identified Cheadle. Gaddis re- dicial identification is admissible. State coming members Cheadle into Ned’s testimony The in-court from the Torres. 1:00 around a.m. incident. supports before us the trial record court’s a.m., at 2:00 and Gaddis testi- Ned’s.closes independent. ruling it was always noticing people he fied that starts closing around time. Gaddis testified that witnesses in-court iden- Other who made style hair remembers Cheadle’s and his being tifications Cheadle without shown eyes. Between the time of the incident and photo Ewing, arrays were: Jim who was identification, when he made his Gaddis night of the doorman at Ned’s the picture testified that he saw on Cheadle’s incident, coming in remembers newspapers approxi- television and in the midnight, showing pay- I.D. around his 1981, September 17, mately five times. On ing Bereberg, charge; the cover and Hal a photographic array Gaddis shown a Ewing, approached friend of Jim who was picture which contained Cheadle differ- Ned’s after Ned’s had Cheadle outside pictures ent from the shown on and in the closed. tentatively media. Gaddis identified Chea- iden photographic array. At After review of the above dle from this trial, positive testimony, time of Gaddis made a in- we find that there was tification granted immunity in If a witness is denying in by the trial court no error evidence, testimony, return for none his testimo- suppress identification motion to ny any evidence obtained as a fruit of that the or correctly ruled the trial court testimony against him his shall be used testimony was inde in-court identification except any prosecution in criminal Aguirre, N.M. State pendent. Beachum, any person may prosecuted be such State 503 P.2d 1154 testimony (Ct.App.1981), perjury committed in such or P.2d 246 N.M. evidence, producing such con- P.2d 1040 quashed, failing give an answer or tempt is the evidence a court finds Once admissible, produce evidence. determination it becomes identifica accuracy of a witness’ as to the (Repl.Pamp. Crim.P.Rule Ortega, tion. 1980), for obtain- sets forth (Ct.App.1968). P.2d 346 (em- Rule 58 ing immunity for witness. added), pertinent part: phasis provides Immunity. Defense II. Witness (a) person If a Issuance of Order. the evi- presentation of testify At the close of called to or to has been or case, dence, re-open his record, document, moved to or other ob- produce a 40(j) Crim.P.Rule pursuant proceeding to NMSA conducted ject an official wit- grand a defense (Repl.Pamp.1980), authority because of a court or under the (Archie), ness, judicial had been locat- jury, Archie the district court for the John agreed proceeding to do so. Coun- The trial court in which the official ed. district may, upon written the it appointed for Archie because or be held sel was prosecuting application attor- testimony could incrimi- appeared that his requiring the written order ney, issue a fugitive. NMSA harboring him for nate produce the § person testify to or to 1978, 30-22-4. document, record, object not- or other jury, Archie presence of the Outside privilege against withstanding his self- that if he was the stand and indicated took ** incrimination *. only his testify, he would state called to provision there is no constitutional then invoke Since and address. He would name allowing application or statute this State privilege and refuse Fifth Amendment his immunity defense time, granting of to for the questions. At this Cheadle to answer witnesses, the rule of crimi we must follow concerning what proof an offer of made set forth above. State v. stand, nal say if he took the Archie would (Ct. Sanchez, 428, P.2d 496 immunity. Ac- 98 N.M. 649 granted provided he was denied, 478, cert. App.), 98 N.M. proof, Archie would cording to the offer of State, 745, Campos v. (1982); Sep- 1391 spent the testify that Cheadle (1978). requires Rule 58 1981, house, 580 P.2d 966 10, Archie’s tember application by the district attor watching tele- written day, following while that the trial court ney and a written order house, he first became at Archie’s vision person testify. to State v. ordering looking for him. police were aware that the contain a Sanchez. This order must also Therefore, that the trial requested New Mexico will specific condition that grant Archie on its own initiative court prosecution person for forego re- court denied the immunity. The trial ques is about which he criminal conduct quest. Campos State. and testifies. tioned trial, Mexi- At the time of Cheadle’s attorney to requires The law the district to im- provisions that referred co had two See obligation. NMSA undertake that 1978, 31-3A-1 munity. NMSA Section § 36-l-18(A) 1978, annot. pro- applies grand jury (Cum.Supp.1981), request an oral to the trial Cheadle made recompiled as Section 31-6- ceedings and is no written immunity, for there was (Cum.Supp.1983). court 15, Section NMSA 1978 However, had application. even Cheadle 31-6-15 states:

287 complied 58, prece- with Rule properly there little The trial court denied Cheadle’s granting for immu- request dent defense witnesses for granting immunity to Archie. Mexico, nity. Like New the federal prosecution government allows witnesses Jury III. Instruction. be immunized but does not have a rule instructions, the jury Cheadle claims that concerning granting or statute of im- 39.30, 39.31, UJI Crim. munity to defense witnesses. See 18 (Repl.Pamp.1982), incomplete 39.33 § § § U.S.C. confusing, thereby providing jury majority A federal law case has held inadequate objective with standards that district federal court has no au- weighing their as to decision whether death

thority grant immunity to demand imprisonment or life appropriate. government immunity seek for a conference, At the instructions’ trial Hunter, defense witness. United States v. court asked both the State and Cheadle (10th Cir.1982); United States 672 F.2d 815 any objections whether there were to the (3rd Cir.1973). Berrigan, 482 F.2d 171 proposed given instructions to be to the Virgin Government of Cheadle relies on sentencing phase. in the Smith, Islands v. (3rd F.2d Cir. Cheadle, objections. appeal, made no On 1980), suggests under certain time, objected giving the first to the process may due require circumstances the three instructions. government immunity afford repeatedly We have held that ab opinion defense witness. The sets forth sent jurisdiction fundamental error that is four rules to follow: al, objections instructions cannot immunity 1. The properly must be appeal raised for the first time on when the sought in district court. object defendant did not to the instructions 2. The defense witness must be avail- Garcia, at trial. testify. able to — U.S. -, P.2d testimony clearly 3. The must be excul- S.Ct. L.Ed.2d patory and essential to the defend- Noble, P.2d 1153 ant’s case. in We still adhere to death this strong government 4. There must be no Garcia; see State penalty cases. against interest which countervails a State, Vaught (Fla.1982). 410 So.2d 147 grant immunity. of Garcia, State v. point out in We that we Id. at 972-973 (footnote omitted). challenged two of the instructions reviewed if adopt Even this Court to chose with We and found no fault them. also Virgin decision Government in Islands of point Supreme that out the United States Smith, comply did not with the recently Court has held that there is no requirements. request four The for immu- specific requirement adopt that state a nity properly sought. was not The testimo- weighing process in standards de- clearly ny exculpatory was not and essen- ciding impose penalty. whether to death offer proof tial. Cheadle’s showed that Stephens, In Zant v. testify slept Archie would that Cheadle (cita- (1983) S.Ct. L.Ed.2d September 10, residence the his omitted) added), (emphasis tions the United The murder of 1981. Nava was committed Supreme States Court stated that: early morning September in the deciding note that in this case we [W]e 1981. express any opinion concerning do not However, holding we to possible significance decline follow of a Virgin Government Islands Smith particular aggravating circumstance is hold statutory and in New Mexico there is no under ‘invalid’ scheme authority immunity for judge specifically to demand a wit or See State Sanchez. aggravat- ness the defense. weigh statutory instructed to testimony any pro- mitigating in exer- crime or criminal ing and circumstances impose cising ceeding, whether to or retaliation for the victim its discretion * * * penalty. any proceed- Constitu- criminal having testified [T]he require adopt to tion does not ing. instructing the specific standards for was instructed on “murder of a aggravat-

jury in its consideration of witness” as follows: * * ing mitigating circumstances *. you may aggravating Before find the of murder of a witness to a circumstance Therefore, although Mexico person likely to become a crime or adopted has the standard that a defendant crime, you to a must find that witness mitigat to death if the cannot be sentenced proved your the state has satisfaction ing outweigh aggravat circumstances beyond a each of the reasonable doubt circumstances, ing does Constitution following elements: require adoption specific of a stan not 1. Nava was a witness to a crime Gabe instructing jury in consid its dard crime; likely a witness to a become aggravating mitigating cir eration of cumstances. prevent Nava murdered to Gabe Aggravating Circumstances. reporting IV. Nava from the crime. Gabe charged aggravat- two Accord, Cheadle was with UJI Crim. 39.20 §§ N.M.S.A.1978, 31- ing circumstances. (Repl.Pamp.1981). 20A-5(B) (G) (Repl.Pamp.1981). Both objection this Cheadle raises were submitted aggravating circumstances appeal. Objections to for the first time on unanimously found jury. to the The jury^ jury instructions cannot be raised for the aggravat- beyond a reasonable doubt that Garcia; appeal. first time on 31-20A-5(B) ex- ing circumstance Section Therefore, since this ob Vaught v. State. sentenced isted and that Cheadle should be jection was raised at the trial court unanimously to death. The also found level, precluded raising from it Cheadle is aggravat- beyond a reasonable doubt that However, correct, now. even he were 31-20A-5(G) ing ex- circumstance Section or more circum when two should be sentenced isted and found, stances are the invalidation of one death for that crime also. sentencing proceed will not invalidate the dispute that there was Cheadle does not is due to consti ing unless the invalidation sufficient evidence to sustain submis- tutionally protected Zant v. conduct. Ste 31-20A-5(B) jury. sion of Section phens. 31-20A-5(B) provides that: Section in- murder was committed with [T]he Proportionality Review. V. of

tent to kill in the commission or at- tempt kidnaping, sex- to commit criminal deeply principle pun- A is that a rooted of minor criminal sexual ual contact proportionate ishment should be to the penetration. Helm, crime. v. Solem (1983). not, If aggravating cir- S.Ct. L.Ed.2d 637 Cheadle does assert that 31-20A-5(G) punishment not is considered cruel cumstance Section was then evidence; therefore, justified by the he and unusual in violation of the United granted sentencing pro- should a new be Mexico Constitutions. States and New Const, 31-20A-5(G) ceeding. provides XIV; Section U.S. amend. VIH and Const, § that: II, Gregg Georgia, art. v. 2909, 49 L.Ed.2d 859 U.S. 96 S.Ct. capital felony was murder of a [T]he (1976), imposition held that the of the death any person likely to a crime or witness crime, penalty murder is neither become a to a for the for deliberate witness imposition pun- purpose preventing report purposeless of of severe punishment grossly dispropor- ishment nor In Simonson, v. aggravating State cir- 31-20A-5(G) tionate for the crime. Section given cumstance was separate for two The jury murders. found Capital New Felony Under Mexico’s Sen- aggravating each circumstance existed Act, tencing 31-20A-4(C), Section we are to weighing but after mitigating ag- and review sentence of death to determine gravating considering circumstances and disproportionate isit “excessive or crime, defendant and the did penalty imposed cases, in similar consider- impose not penalty. death Simonson ing both the crime and the In defendant.” was of two of degree convicted counts first State v. Garcia 99 N.M. at 664 P.2d murder for which he received two life sen- (1982), up guidelines we set for such tences, he and was also convicted of at- review. tempted murder for which he received nine guidelines apply These prospec- are years. tively any to cases decided in Gilbert, v. aggravating State circum- court within New Mexicoafter the mandate 31-20A-5(B) stance given Section was in State v. Because Garcia. Cheadle’s separate two murders. Section 31-20A- already case was this before Court when 5(G) given. was also The found that decided, v. State Garcia was we contacted aggravating all three circumstances existed the State and the requesting defense their unanimously impose and voted to comparisons. of submission cases for Two penalty. penalty Gilbert’s death was brought cases have been to our attention. recently upheld. State v. Gilbert. Hutchinson, State (1983), Proportionality review in Garrison, No. State 14,313. Mexico is first and foremost directed to the We recently will also consider the particular crime circumstances of a and the Simonson, cases decided State specific character of the defendant. (1983), Gilbert, State SBB 1125 and State v. It duty is our review the Garcia. SBB 1173 jury; we will not re determination Hutchinson, In State v. the defendant try the case for what better charged aggravating was with circum- result. Id. 31-20A-5(B) (G). stances Section The jury found aggravating both circumstances compared have We sentences existed, impose but did sen- death Hutchinson, imposed in Simonson tence. Hutchinson was convicted of first see if sentence is ex Gilbert to Cheadle’s degree murder for life received facts, disproportionate. The cessive or cir degree imprisonment, kidnapping of first and crimes in each case are cumstances eighteen years which he im- received different, as well as the defendants and prisonment, robbery armed thorough their histories. After a review of years imprisonment. which he received nine transcripts the record and in Cheadle’s tri al, we find Cheadle’s sentence death urges compare also us to for the deliberate murder of Nava is nei Garrison, 14,313, No. which was dis- disproportionate. ther excessive nor posed by unpublished decision. Garri- charged one cir- son with Penalty. VI. Death § 31-20A-5(G). cumstance. did penalty find that death not this circum- Cheadle contends that the Therefore, pursuant punishment stance existed. our cruel and constitutes unusual Garcia, in United standard State v. State v. under the States’ and New Gar- Mexico’s Const, compared is not to not amend. rison and is Constitutions. U.S. VIII § analysis. XIV; Const., II, applicable to this 13.1 art. 660, California, applicable through 1. 370 U.S. S.Ct. Robinson the states Four- 1417, (1962), Eighth 8 L.Ed.2d held that the teenth Amendment to the United States Consti- Amendment to the United States Constitution tution. Garcia, In we held that sent imposition on the issue of the of the pursuant Gregg Georgia, penalty. 428 U.S. death I Capi- would hold that the 153, 2909, (1976), Act, 96 S.Ct. 49 L.Ed.2d 859 Felony Sentencing 1978, tal punishment death does not violate through Sections 31-20A-1 31-20A-6 the United Constitution. (Repl.Pamp.1981) States We also violates the Fourteenth Garcia, pursuant held in Eighth State v. Amendments to the U.S. Con- Rondeau, 408, II, 89 N.M. 553 P.2d stitution and Article Sections 13 and 18 (1976), penalty is not cruel of the N.M. Initially, Constitution. the rel- punishment per and unusual se within the Jury evant Uniform Instructions do not prohibition Eighth provide of the and Fourteenth objective clear and standards to Amendment of the United States guide jury’s Constitu sentencing decision. II, tion or Article Section 13 of New Mexi While the defendant and the crime co’s only Constitution. Mexico’s current mitigation, be considered in and not in statutes, capital punishment aggravation, Sections 31- is not instructed to 31-20A-6, through 20A-1 are modeled af this effect. This belies the fact that no Florida’s, Georgia’s ter and Texas’2 death guidance provided effective statutes, penalty which havewithstood its determination whether aggravating cir- Supreme scrutiny.3 United States Court outweigh cumstances mitigating circum- Therefore, again addition, find that we New Mexi stances. the New Mexico Capital Felony Sentencing co’s Act is con penalty provisions provide death do not stitutional. meaningful proportionality review as is evi- cursory

denced discussion in the VII. Conclusion. majority opinion comparing the circum- stances, crimes, history defendant’s having carefully After reviewed the sentences in the instant case with those of us, transcript record and in the case before Finally, other cases. both the Uniform we conclude that there was no error com- Jury sentencing Instructions and the stat- presented in mitted on the issues this case unequal ute allow for equally treatment of validly and that the death sentence was culpable reasons, defendants. For these Therefore, imposed. judgment greater which I discuss in my detail in punished by that Cheadle be death is specially concurring opinion in State v. affirmed. This case is remanded to the Garcia, 771, 969, execution, trial court to set the date of not — -, 2464, U.S. 103 S.Ct. sixty days ninety less than nor more than (1983), L.Ed.2d 1341 I would remand this days from the issuance of the mandate on imposition cause for the of a sentence of judgment. our imprisonment. life IT IS SO ORDERED.

PAYNE, C.J., FEDERICI, J., concur.

SOSA, Justice, dissenting part. Senior

STOWERS, participating.

SOSA, Justice, specially Senior concur-

ring.

I concur with the affirmance of the con-

victions in this case for the reasons stated opinion. majority respectfully I dis- (1981); Florida,

2. Fla.Stat. § 921.141 Ga.Code Ann. 428 U.S. 96 S.Ct. Proffitt (1976); (Cum.Supp.1982); Gregg Georgia, § 27-2534.1 and L.Ed.2d 913 § 27-2537 (Vernon 1981). U.S. 96 S.Ct. 49 L.Ed.2d 859 Texas Stat.Ann. art. 37.071 Texas, Jurek v. 96 S.Ct. L.Ed.2d 929

Case Details

Case Name: State v. Cheadle

Court Name: New Mexico Supreme Court

Date Published: Jan 5, 1984

Citation: 681 P.2d 708

Docket Number: 14177

Court Abbreviation: N.M.