State v. Clark

772 P.2d 322 Mexico, New

STATE Plaintiff-Appellee, CLARK, Defendant-Appellant. Terry D. 17265.

No. New Supreme Court of Mexico. 9, 1989. March Rehearing May Denied Stratton, Gen., Atty.

Hal William McEuen, Gen., Fe, Atty. Asst. Santa plaintiff-appellee.

OPINION

SCARBOROUGH, Justice. (Clark) pled guilty to

Terry D. Clark kidnapping degree and murder in the first Lynn of Dena Gore. He was sentenced to twenty-six years death for the murder and imprisonment kidnapping. ap- for the This peal follows. We affirm Clark’s convic- imposition penal- tions and the of the death ty- (1)

We discuss: denial of motion Clark’s (2) guilty plea; to withdraw his the trial delay imposing court’s decision to the non- capital portion of Clark’s sentence until after the deliberations in the proceeding; (3) cross-examina- jury arguments tion of the State con- cerning possible length of a life sen- tence; (4) testimony of the victim’s mother jury arguments and the State’s said to of Booth v. principles have violated Maryland, (1987); (5) testimony L.Ed.2d 440 concern- incarceration; (6) ing the costs of comment (7) testify; validity failure to Clark’s statutory aggravating circumstance crime,” of “murder of a witness to a prior the admission into evidence of Clark’s record; (8) coverage criminal television (9) jury; Clark’s allocution to the claims of reversible error due to the instruc- tions; (10) review of the death sentence pursuant 31-20A- Section 4(C) (11) (Orig.Pamp. Cum.Supp.1988); & of State v. proportionality guidelines Garcia, 664 P.2d L.Ed.2d 1341 Clark’s claim of cumulative error.

FACTS Terry previously had been convict- kidnapping and criminal sexual ed of the Bennett, girl for which Rothstein, Daly, six-year-old penetration Donatelli & Donatelli, years twenty-four A. he a sentence of Hughes, Mark H. Martha received Brack, Fe, imprisonment. Pending appeal of that con- Daly, I. John H. Santa David viction, Columbia, S.C., Blume, defendant-appel- he was released on bond and was living his ranch Chavez brother’s lant. Guilty July On I. Withdrawal Plea. County, New Mexico. afternoon, p.m. he forci- about 6:00 in the complains judge that the trial Lynn Gore Dena nine-year-old bly abducted refusing erred in to allow him to withdraw Artesia, Mexi- from near her home New guilty plea. his Clark does not contest that ranch co. He drove her to brother’s acceptance plea satisfied the court’s her, raped her three times in where he shot 5-303(E) (F) requirements of Rule & head, body her nude and then buried govern taking guilty pleas.1 grave. Rather, judge a shallow he claims that the trial permitted should have him to withdraw the investigation An extensive and search justice play, plea in the interest of and fair disappearance. for the victim followed her granting and the motion would not because suspicious caused Various circumstances prosecution. prejudiced have Clark ar Steve, brother, together with Clark’s older gues by the that the actions taken Gover hand, girl’s body a ranch to search for the inherently nor were coercive and rendered July ranch 1986. After locat- on the guilty plea suspect. disagree, his grave they notified the authorities judge not hold that the trial did abuse his body and arrested who then recovered the by denying discretion the motion to with Clark. plea. draw the pending While Clark’s case was Gover- learned from November 26, 1986, Toney Anaya, on nor November Anaya his defense counsel that Governor announced his decision commute the of all intended to commute death sentences of the five men then on persons currently on death’row to a sen- advised Clark’s death row. Governor imprisonment. life Defense coun- tence of defense team that he would also commute sel advised Clark that if he were sentenced death sentence if one were to be expiration Anaya’s of to death before the prior expiration imposed to the of his term term office the Governor would com- of of office on 1986. On De- December mute his sentence also. On December plea entered a of cember change his Clark entered a motion to guilty charges. judge to all The trial de- charges. plea guilty to one of to all Prior sentencing request nied Clark’s to hold a plea, judge accepting the nеw the trial proceeding in December of and the impossi- only that not was it advised Clark Supreme Mexico Court later declined New the court to conduct ble for to order the trial court to do so. On Febru- 1, 1987, proceedings January but before ary the trial court denied Clark’s intention of also that the court had no guilty plea. On motion withdraw attempting to do so. Clark chose to enter jury Quay County in May any acknowledged a sen- in plea the new case and that, part, tenced Clark to death for the murder of his decision was to the court having Lynn upon possibility based of a sen- Dena Gore. * * * 1986, 5-303(E) (F) (4)that pleads guilty require if he there will 1. SCRA & the trial kind, entry plea judge by to determine that the of a further trial of so that not be * * * guilty intelligently voluntarily given. The is guilty right pleading he waives the to a pertinent part provides: Rule trial. E. Advice to The court shall Ensuring plea voluntary. F. is defendant.* * * first, accept plea guilty without guilty accept plea The court shall not * * * by addressing personally in the defendant first, by addressing defen- without court, informing open him of and determin- court, determining personally open dant following: ing that he understands the plea voluntary is and not the result of (1) charge the nature of the to which the plea promises apart or threats or from a force offered; plea inquire agreement. The court shall also (2) mandatory penalty pro- minimum defendant, defense counsel and the attor- law, possi- any, vided and the maximum ney government as to whether the for the plea is of- ble for the offense to which the fered; * * * willingness plead guilty defendant’s prior results from discussions between right plead that the defendant has the attorney government for the and the defen- guilty, persist plea in that if it has or to attorney. dant or his made; already been guilty plea. E.g., tence of death commuted Governor Ana- tion to withdraw Unit (5th ya. Carr, to the court that he also stated 740 F.2d ed States .Clark plead guilty about three Cir.), had decided to learning prior of the Governor’s weeks United States possible He stated that he intervention. (6th Cir.1987).2 Spencer, 836 F.2d 236 possi- did not believe consideration of a prosecution possible prejudice to the While ble commutation had been involved considered, is also a factor to be absence decision at that time. Clark stated that he itself, prejudice prosecution, by rights giving up by understood the he was permission pre- insufficient to mandate guilty pleading and that he knew he would plea guilty. sentence withdrawal of a plea if unable to withdraw the a death 345; Saft, States v. See Carr United imposed. He sentence were to be then (2d Cir.1977), 558 F.2d cited admitted to the court that he had commit- 32(d) approval in Fed.R.Crim.P. ad- ted the crimes with which he had been note; visory committee see also American charged proceeded to describe the fac- Bar Association Standards Criminal crimes. The trial tual details of those (2nd commentary at 52-53 Justice 14-2.1 judge accepted guilty plea after con- 1980). Thus, ed. the defendant has the cluding knowingly that it was and voluntar- initial burden to establish sufficient ily entered. grounds permitting plea for to be with- December this Court denied On drawn, and he does not meet that burden extraordinary Clark’s motion for an writ solely by showing prejudice an absence of ordering the trial court to conduct the sen- prosecution. to tencing proceeding in December of 1986. mind, these considerations in we With February to On Clark moved must conclude that Clark failed to establish plea his and the motion was de- withdraw why valid reason the trial court should nied. granted He com- have his motion. admits Clark must show that the trial pliance procedural with the re- judge by refusing abused his discretion quirements plea to ensure that guilty plea prior him to allow withdraw knowingly and voluntarily, and does not now Brown, sentencing. State v. original plea claim the was otherwise. He Kincheloe, 263 P. 502 did not innocence when he first assert his (Ct.App.1974). N.M. sought plea, nor does he to withdraw Brown, this Court concluded that the de appeal. time he entered the now on At the plea fendant was entitled to withdraw his plea, had the assistance of a close promptly where he acted to withdraw a attorneys. Finally, team of four defense threats, guilty plea induced entered Clark waited two and one-half months be- counsel, without the benefit of and where seeking fore a Under these withdrawal. he asserted his innocence and stated a de circumstances there was no abuse of dis- fense. 33 N.M. at 263 P. at 504. In denying cretion in the motion to withdraw Kincheloe, the found denial of a mo court plea. plea guilty tion to withdraw a to constitute Moreover, disagree sugges- we with the undisputed manifest error when the facts plea knowing tion that his less plea could not showed that the have been voluntary representations because of the knowing voluntarily made. 87 N.M. at persisted re- Governor. Clark with his 528 P.2d at 895. Consideration of quest plea full these, to enter the with the knowl- together, factors such as taken edge guide of the court's intention not to hold a the exercise of a trial court’s discre sentencing hearing consider similar before the end of 1986 tion. Federal courts presentence expiration deciding factors when mo- and the of the Governor’s term 1968). concerning 2. See also SCRA 5-304 committee com- recommendation a mo- mentary, citing guilty plea prior of The for of a the recommendations tion withdrawal Relating American mirrors the federal rule. Fed.R. Bar Association Standards See 32(d). Guilty (approved Pleas Section 2.1 draft Crim.P. Prior to the commencement of the sen- Also, entered the time Clark office. proceeding court, tencing Clark moved the district he informed the guilty plea impose kidnap- his sentence on the court to recant, decided to that he had not later did charge ping before deliberations time he became prior to the plead guilty murder. the death sentence Thus, possible commutation. aware eighteen-year faced the basic sen- of the Governor possible intеrvention kidnapping possi- to a tence for addition to enter only factor in his decision one life sentence for murder as an alterna- ble no plea. actions While Governor’s penalty.3 tive to the death NMSA plead decision to influenced Clark’s doubt Also, 18—15(A)(1)(Repl.Pamp.1987). § 31— say ac- guilty, cannot the Governor’s we ag- hearing after evidence of compelled that decision. improperly tions circumstances, gravating the court could the court point, we with More increase or decrease the basic decide to States v. Carr which stated that United by much as one- eighteen-year sentence allowing a defendant purpose third, 31-18-15.1 Section guilty plea is “not to allow a withdraw a (Repl.Pamp.1987), and then decide whether decision to to make a tactical defendant concurrently the sentence was to be served weeks, plea, several and then enter a wait consecutively twenty-four year that he a withdrawal he believes obtain imposed previous for Clark’s con- F.2d at 345. made a bad choice.” 740 (Repl. 31-18-21 viction. NMSA Additionally, sen- Pamp.1987). basic Noncapital Por- Delay Imposing II. subject one-year enhance- tence was tion of Clark’s Sentence. firearm, and a one- ment for the use eighth requires amendment of- year enhancement under the habitual capital jury afforded a that the discretion 1978, statute. NMSA fender suitably limited so “must be directed and 31-18-16(A) (Repl.Pamp.1987); NMSA § wholly arbitrary minimize the risk of as to 31-18-17(B) (Repl.Pamp.1987). § Georgia, Gregg capricious action.” and argued in his motion that the court’s Clark 2909, 2932, 49 428 U.S. impose on the non- failure to first sentence argues that the Clark unnecessarily enlarge L.Ed.2d 859 capital charge would sentencing al understanding available, and range of sentences would the was affected available to them effect of its jury ternatives about the confuse the factors, either of arbitrary the motion by judge two related The trial denied verdict. (1) delay impos inappropriate in tо requires stating reversal: it would be that noncapital kidnapping charge on the on the ing Clark’s sentence sentence Clark (2) regarding the jury’s decision charge kidnapping; prior cross-examina to the of Instead, possible capital murder. argument concerning the sentence for and tion jury the to inform if sentenced counsel was allowed length incarceration of Clark’s under open to the court options were imprisonment. discuss these what life We to ' Sentencing Act.4 the Criminal separately. issues testimony requiring or other evi- Sentencing amend- Without Act as Under the Criminal 3. dence, notice that: capital felony court has taken calls the ed in conviction prior imprison- conviction defendant Under the of or life 1. a sentence for either custody (Repl.Pamp. of the Correc- was sentenced § NMSA 31-18-14 ment. imprisoned 1987); (Repl.Pamp. Department for a term to be 31-20A-1 tions § NMSA 1987). years eighteen count I followed and Parole Act under Under the Probation of (9) years February years parole, inmate is nine under of an who two amended II, years suspended, imprisonment for the commis- fol- life three to be sentenced to count eligible felony years parole. capital for becomes two sion of a lowed thirty years prior is hearing served defendant parole after he has Under the conviction 2. 31-21-10(A) one anoth- consecutive to each count of his sentence. to serve (Repl.Pamp.1987). er. present for mur- conviction Under the 3. der, to death or shall be sentenced following defendant in- jury provided was 4. imprisonment. life request counsel: of defense at the struction argues jury plurality opinion). no could judge Clark now that be Eddings, give youth, refused expected to consideration to consider the defendant’s serious to history background, family of a violent imprisonment sentencing Clark to life un- severe emotional disturbance. U.S. at such a less it confident that 115, 102 at S.Ct. 877. The Lockett society by isolating protect would Clark in considering was barred from evidence of prison his for most or all of life. In his youth, specific the defendant’s lack of in- statement, opening defense counsel had death, relatively tent to cause minor Clark conceded to that should not role in the crime. 438 U.S. at S.Ct. again society. released into be at 2961. evidence in Eddings both with Clark that had Lockett was it because tended impose decided death penalty, responsibility diminish the defendant’s terms Clark’s sentence on the kid- for In Skipper, the crime. charge napping significantly would affect considering testimony regard- barred from timing eligibility his for release on good during defendant’s behavior parole. judge the trial later When sen- spent jail awaiting seven months he kidnapping charge tenced on the Clark he trial. 106 S.Ct. at 1671. The term, imposed maximum allowable to Court concerning stated evidence consecutive his other served convic- past defendant’s conduct was indicative of question tions. The whether court and, probable therefore, future behavior required impose noncapital sen- question was relevant to the his “future tence in advance order dangerousness.” See id. at 106 S.Ct. at might take information into account in argues impor- that a more far deciding impose whether tant determinant whether a de- argues death sentence. Clark that he had poses fendant risk of future violence than right Skipper a constitutional under pretrial good ques- his jail conduct in Carolina, 1, 106 South eligibility Thus, tion parole. of his (1986), Ohio, and Lockett v. claims, under the of Skip- rationale L.Ed.2d 973 per, possible parole, ineligibility for (1978), have the informed of his life, virtually the remainder of his is a sentence, kidnapping firmly in order to fix mitigating circumstance which cannot be might eligible the he time when become for constitutionally jury. the withheld from parole, jury the retired to consider before potential period We do not the for murder. capital confinement of a sen- defendant dispute eighth There is no the that imprisonment mitigating tenced to life is a requires sentencing amendment that the eighth circumstance under the amendment jury any must allowed to consider as- jurisprudence of the United States Su- pect of the defendant’s character and preme repeatedly Court. That Court has record and of the circumstances of the defined mitigating circumstances proffered mitigation. Eddings offense as facts the character about defendant’s or Oklahoma, U.S. S.Ct. background the circumstances the 869, 874, (1982); Lockett, L.Ed.2d 1 particular penal- may offense that call for a (Burger, C.J., ty U.S. at 98 S.Ct. at less Skipper, than death. See U.S. by present the conviction for kid- must the basic an Under increase sentence addi- by napping, the basic sentence established law year. tional one equals eighteen years imprisonment. may 7. The court order that defendant present the for kid- 5. Under conviction prior present serve the convictions either napping, aggravating mitigating if the court finds that consecutive or concurrent remainder of exist, it circumstances has the au- the term. thority increase the to or decrease basic sen- authority suspend 8. The has no court up to tence one-third. imposed or defer sentence to be in this court finds the defendant 6. If the that has case. conviction, prior increase his a it must basic to, may, required accept You but are not by year; one court finds that sentence if the a this as a fact. conviction, present was firearm used in the it 31-18-15.1(A) 1671; (Repl. Eddings, jury. at See at 106 S.Ct. 874, 875; Lockett, Pamp.1987). at court’s decision could not at 2965; 98 S.Ct. at in isolation from the one faced be viewed Califor- Brown, 479 appropriate penalty nia jury on the Skip- In L.Ed.2d 934 judge crime of murder. If the “the defendant the evidence that per, prior had made his decision spared” pose danger a if would not deliberations, capital jury his decision It is the regarding his character. evidence impermissible may well have had an effect background defendant’s own conduct reasons, jury. For thеse we con- source of evidence that is the judge clude that the trial did not abuse his danger- regarding potential for future refusing impose noncap- discretion jury be allowed ous behavior that the capital jury ital sentence until after the sentencing prerogatives . to consider. The deliberations. length judge, possible or the of the trial sentence, simply life have no relevance a Concerning III. the Possible Statements they eighth amendment standards under Length of a Life Sentence. developed so far. have judge’s asserts that while the Moreover, guaranteed that it can not be withholding noncapital of the sentence was respond positive in a fashion would sufficiently prejudicial and of itself sought which Clark to the information reversal, greatly require prejudice Instead, information of put them. before prosecutor’s unfair exacerbated may impermissible preju- this sort have an closing argument to cross-examination and effect, especially where the evidence dicial concerning length of a possible case, after evenly balanced. Clark’s life sentence. death, the jury returned a verdict of discussed, much of Clark’s defense As imposed enhanced judge trial the maximum intended to assure twenty-six years kidnap- on the sentence of imprisonment sentenced to life Clark were charge, ping and then ordered society. pose no further threat to he would be served consecutive the task of Defense counsel embarked on the most se- other convictions. This was approximate period advising sentencing option open to the court. vere faced, at what confinement Clark accepted universally trial It is almost eligible parole. might he become time indi- express or otherwise judge should sought first to have Clark Defense counsel opinion on an whether cate to kidnapping charge before on the sentenced charges. guilty of criminal defendant retired, appropriately request Bar Association Standards American See sentencing proceeding, At denied. commentary 15-3.8 Justice Criminal § a chart introduced into evidence (2nd 1980). any Similarly, ed. at 113-14 sentencing showing effect of various capi- judge during a taken a trial action court, the ef open to the and alternatives might sentencing proceeding be tal deductions, or meritorious possible fect of on the defendant’s interpreted to reflect awards, by Corrections “good-time” capital crime must also culpability for his if The chart showed Department.5 Here, court was under be avoided. sentence, also a life received sentencing deci- Clark noncapital duty to its base leniency from the court on maximum mitigation same evidence sion on the con- charge, would not be kidnapping presented to the aggravation as was 33-2-34, thirty Act, may period of reduce the these credits Section the Corrections 5. Under may imprisonment penitentiary any years in the sentence to life inmate confined an inmate thirty days eligible a meritorious deduction for a awarded becomes serve before he good per- and the per for his conduct month hearing pursuant parole to the Probation NMSA labor. 31-21-10(A) formance of industrial Act. See Parole Supp.1988). (Repl.Pamp.1987 & Nei- 33-2-34 1980). § ther that (as February, (Repl.Pamp.1987) amended previous statutory provision, nor our today. question is not before us That decisions, question of whether address the court parole get until he had served at when he’ll out. It is inevitable. And sidered for thirty years prison point you and reached the as we tried to out to on cross- least man, man, age sixty-one. This conclusion was examination when this if this life, good-time guaran- upon premise that is sentenced to there are no based Department guarantees. by the Corrections tees. No Somewhere down awards inapplicable a life sentence. the road is another victim. Whether it’s towards tomorrow, years twenty years ten from the records adminis- defense called tomorrow, longer, from she’s out Department, Ms. trator of the Corrections there, or she will be out there. Catanach, testify expert an Cathy explain and to the chart to the Defense counsel failed to make ob- examination, however, closing argument, jury. jection On direct she to this or to the opin- stated that there was a difference of earlier cross-examination of the defense ex- Department pert. ion the Corrections view of the fact that in a number between Attorney and the State General on whether of instances what is now asserted to be good-time against passed objection error credits could be awarded reversible without depart- during sentencing proceedings, gen- a life stated that the sentence. She keeping good-time scope ment was records on eral discussion of our of review in prisoners serving a life sentence and case is warranted. this age paroled forty- Clark could be at the Generally, failure make a time ‍​​‌​​‌‌​​‌​​‌‌‌‌​​​​‌‌​​​​​‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌​‌​‍if six he received such awards. ly objection allegedly improper testimo expert af- On cross-examination ny argument bars review of the issue on her De- firmed view that Corrections 762, 764, appeal. Tafoya, 94 N.M. State partment Attorney was not bound (1980); Ruffino, 617 P.2d State v. opinion. General’s She stated that the de- 94 N.M. 612 P.2d partment currently treating life sen- Casteneda, State v. N.M. eligible tences as for meritorious deduc- (Ct.App.1982). 642 P.2d against thirty-year minimum. involving tions On Claims of error fundamental cross-examination, expert rights brought further as- should be to the attention of prosecu- sented to other factors which the judge the trial court in order that the trial suggested might possible may, possible, alleged tor affect Clark’s correct viola date, release such as: the commutation au- tion before the retires. Absent a time possible legislative ly objection ruling thority governor; which invokes a of the court, amendments; decisions; rights judicial futurе trial the fundamental policy changes Depart- party subject are to waiver. Corrections State v. Es that, camilla, given concluded 107 N.M. 760 P.2d ment. witness variables, appellate not feel Review of the issue in an she did comfortable predicting discretionary. is then the term inmate would court SCRA 12-216(B). exception general An serve. barring questions prop rule review of question might of when Clark be- below, however, erly preserved applies in again eligible parole come became an cases which involve fundamental error. closing arguments de- issue both Compton, prosecutor. fense counsel and the Defense 837, 841, 890, denied, P.2d cert. 479 U.S. argued if counsel that Clark received “ev- 291, (1986); 107 S.Ct. 265 State ery in the he would not be break world” Ramirez, 268, 269, 307, P.2d v. 98 N.M. 648 eligible parole sixty-one. until he (1982). 308 Fundamental error cannot be argument prosecutor In his rebuttal the Escamilla, 515, waived. 107 N.M. at 760 following made the statement: P.2d at 1281. briefly talked about [Defense counsel] principle the possible and the While we adhere to this case capital sentencing determination re length question of time. The is not when that a it’s, degree scrutiny” than Terry get sorry, quires “greater I’m of Clark will out— out, Comp- get imposition penalties, of all other Terry it’s not if will it’s the

297 842, ton, vacated other 688, (1970), on 726 the 111 104 N.M. at P.2d at S.E.2d 936, 2859, grounds, thereby is excused from rais- 408 92 33 accused U.S. alleged during error the questions (1972). of Contra State v. Jack ing L.Ed.2d 752 See, e.g., son, denied, sentencing proceeding itself. 91, 36, cert. 100 Ariz. P.2d 412 Cheadle, 282, 287, v. N.M. 681 101 State 877, 156, 87 S.Ct. denied, 708, cert. (1983), 466 713 U.S. P.2d decisions, (1966). These and we would 1930, 945, 80 475 L.Ed.2d agree, generally such view considerations (noting in death cases even proper the jury’s to be inconsistent with objections to instructions cannot be decision-making role, or the sen- the on appeal). first time raised tencing as fixed considerations statute. judge, trial who has observed the entire Brisbon, 342, E.g., People v. 106 Ill.2d 88 position to make proceedings, is the best denied, 87, 402, cert. 478 Ill.Dec. N.E.2d factual of determination whether 908, 276, 88 241 L.Ed.2d has and evaluate the ex- violation occurrеd (1985) (holding parole im- eligibility State v. prejudice. possible tent of aggravating to miti- material either the or Gonzales, 105 P.2d N.M. 731 capital sentencing pro- gating issues of a quashed, cert. (Ct.App.1986), 105 N.M. 386 however, ceeding). recognize, (1987). point P.2d 730 1193 At that eighth prohibit provid- amendment does may susceptible correction, error to be ing accurate information con- not, may if be new trial ordered with- See cerning postsentencing procedures. judicial further of To out waste resources. Ramos, 463 103 California greatest possible, extent all issues 77 1171 L.Ed.2d upon validity which bear of the sentenc- case, any prose In this error in the should be aired in fully determination argument cutor’s cross-examination and the time- the trial court. The relaxation of object failure and was waived Clark’s to objection capital may en- ly rule cases why the questioning inform the trial court courage gamble the defense to on the ver- argument improper. of and Review raising of dict with the intent of the claim prosecu issue is limited to whether the appeal gamble pay error on if the does not error. tor’s actions constitute fundamental alleged To the rise to off. extent violations The doctrine of fundamental error is be error, ques- level of fundamental only exceptional applied under circumstanc and, appeal tion will be reviewed solely prevent miscarriage of es and exists, a new trial will fundamental error Tipton, 73 justice. State v. 385 N.M. Otherwise, a error ordered. claim of see also State v. Rodri (1963); P.2d 355 in the must first be addressed trial court (1970); guez, 81 N.M. 469 P.2d 148 appeal. preserve the issue for Padilla, 722 Returning question of the 104 (Ct.App.), P.2d testimony propriety the extensive N.M. 721 P.2d 1309 sentencing proceed argument during the application has no We hold doctrine release, posable ings concerning Clark’s of this case where to the circumstances recognize state majority that a we question possible of Clark’s release and improper jury to have held it for thе courts of a life was introduced term possibility consider be informed part argued by the of its case-in- defense Mur commutation, parole. See pardon, or place It the issue chief. was error State, (Ala.Crim.App. ray v. 359 So.2d parole parole eligibility for Morse, People 1978); 60 Cal.2d jury. consideration laws before People v. (1964); Cal.Rptr. mitigat- aggravating immaterial Walker, 64 Ill.Dec. Ill.2d sentencing pro- ing issues our Lindsey, State v. N.E.2d However, intro- ceedings. the defense denied, 464 U.S. (La.1981), cert. So.2d as a parole eligibility (1983); the issue of 908, 261, duced 78 L.Ed.2d 246 defense, part without State, of its and A.2d 1218 central Poole v. 295 Md. Atkinson, 531, 172 objection allowed extensive cross-examina- (1983); 253 S.C. State v. argument question. tion and later on the the emotional distress of the victim’s fami- Once ly personal the issue was introduced it was not the or victim’s characteristics rebuttal, surprising prosecutor, (including perceived worth) that the in social are sought point all of the proper sentencing out factors in capi- considerations upon possibility bear the of after The Booth release tal case. 107 S.Ct. 2535. at conviction of a life sentence. imposition Cross-exami- Court reversed the of a death permitted subject nation is five-page the matter of where a detailed victim examination, 1986, 11-611, impact by direct SCRA statement had been introduced and, observed, general proposition, prosecutor doing as a the State. In so Court the however, respond “[sjimilar types is entitled to of defense counsel’s informa- Muise, may argument. tion well State v. they be admissible because 103 N.M. directly relate to the circumstances of the (Ct.App.), 707 P.2d crime.” Id. at (1985). 2535 n. 705 P.2d 1188 case, during In this direct examina guards The fundamental error rule victim’s, by prosecu tion of mother against State v. corruption justice. tor, Plath, following exchange Mr. Rogers, took (Ct.App. N.M. 453 P.2d 593 place: 1969). The application doctrine has no in cases where PLATH: long you the defendant his own ac MR. About how did error, spend driving looking her, tions creаted the where invoke the around you give can doctrine us an would contravene that which the idea? protect, doctrine seeks namely, the or GORE: I long MRS. don’t know how I derly equitable jus and administration of spent. I I know that would continue Padilla, 449-51, See

tice. N.M. at coming back to the house after a few P.2d at 700-02. minutes to see if yet. she had checked in * * # * * * Testimony IV. Victim's Mother Q: you your Now daughter did see ever Argument Jury. State’s again? Clark permitted claims that the No. A: to receive and argu- consider evidence and Q: During days, you next few were wholly ment unrelated to his blameworthi- your aware efforts to locate ness, and impermissi- this factor created an daughter by community by agen- ble risk that decision of the community? cies would be an arbitrary made in manner department Yes. police A: proscribed by Maryland, Booth v. 482 U.S. looking They for her. had called the FBI 107 S.Ct. 96 L.Ed.2d 440 looking there were several assistants First, argues Clark that the examination of Dena. the victim’s deliberately mother introduced Q: you yourself Did participate in that? anguish of the victim’s Sec- mother. Not Sunday. A: until ond, argues prosecutor in his Q: Were there sort notices sent closing argument impose invited the out, pictures? upon death sentence based the relative flyers. A: Yes. I made I flyers had worth of the lives of the victim up City picture made Hall out of a I defendant. pictures. had of Dena of her school accept proposition advanced Q: they Were circulated Artesia? Clark that his death sentence must be re- A: Yes. they And also circulated Booth light although viewed that case anywhere Carlsbad and Roswell was decided weeks six after sen- else we could send them. Aiken, See Yates v. tencing. 98 L.Ed.2d 546 asserts the victim’s mother Grif- v. Kentucky, gave testimony above a quavering fith Booth, filled grief. voice with emotion and He Supreme rejected argues Court contention that there was no conceivable rea- introducing testimony just Terry son for this other This case is not about Clark. accomplish point totally reject And at this I than to what Booth forbids. disagree. testimony Ms. efforts of counsel and Mr. Clark to tear We Gore’s was girl Lynn from this room. Dena recordings proceedings of the brief. Lynn testimony Gore. Dena Gore. DENA LYNN overly show that her was not GORE, lived, NINE YEARS OLD. emotional. She described where she leaving bicycle and not information. She described who her children her search for the home from and identified a scribed daughter’s clothing for a reporting work, nearby missing girl. picture returning. were, the matter to the and similar store on her brother’s she and her when she returned gave She described her She then de- background subsequent daughter police. police, happens. And What we we as a You duty. on a criminal case a are our values. ^[*] know every I’m people ^[*] I’m not every talking verdict that has particular in a ^[*] What are time talking community about values. What very important thing twelve citizens sit ^[*] situations state about citizens’ our ^[*] [been] stand for. priorities. ^[*] re- every turned in criminal case is unmis- testimony Ms. Gore’s was admissible un- values, takably question a of 31-20A-1(C) a statement der Section values, First, of because it holds like a banner testimony two reasons. was rele- community out to the what our values aggravated vant to show the circumstance are. kidnapping. Despite plea guilty, required prove the State was still to No, you say cannot dollars cents beyond a murder reasonable doubt how much a life is worth. That cannot during was committed the course of a kid- you put I done. wouldn’t ask a napping, required life, and the State was not dollar value on Dena but if Gore’s Second, present life, its case the abstract. Dena Gore’s what is it worth? [sic] testimony directly related to the So much has become devalued. Our crime circumstances of the itself. While money is not worth what it used to be. guilty plea Clark had entered a to all Grades in school are inflated. It’s a charges willing stipulate and he life, symptom of our modern and the surrounding girl’s disappear- the facts creeps morality. If devaluation into our ance, guilty pleas stipulated victim, life, facts are if an innocent victim’s if a child, for the of a crime to nine-year-old life, no substitute evidence innocent victim’s by jury. man, will not read be considered is not-even the life of that worth testimony all con- Booth so as to exclude say what does it about us? What does it cerning anyone having crime from who say profane, us? How about enough close to the victim to be emo- the circumstances under which viewed tionally affected. taken to then make a this child’s life was forty fifty years gift thirty Lastly, note that Ms. testimo- we Gore’s is, logic Mr. Clark. counsel’s] [Defense of the elements ny actually contained none well, Gore, you give it Dena can’t so descriptions proscribed in Booth: give Terry you might as well it to Clark. victim; reputation of the de- character and to state as our Is that what we want impact of the scriptions of the emotional it, values? What’s her life worth? Isn’t opin- upon family; and crime the victim’s it at least worth his life in the scales isn’t characterizing family of the victim’s ions justice? Isn’t it worth that much to the crime or the defendant. innocence, her defenseless- us? Isn’t her ness, things at least aren’t those worth prosecu argues Clark also cunning and cruel and the life of the sepa closing argument constitutes a tor’s her life. guilty? Let’s not devalue set forth in rate violation of the standards Supreme in Booth following The States Court prosecutor United Booth. The made perceived social worth recognized that the argument closing in his statement rebuttal proper sentenc- a murder victim is not a jury: lieve, consideration. downplay Id. at 2534 n. 8. Clark tended to the value of a life prosecutor’s closing contends that the ar- irretrievably which was lost. The com- gument explicit appeal an to the prosecutor ments of the in rebuttal were weigh murderer, the relative worth of the improper under these circumstances. Clark, victim, Terry Lynn and his Dena prosecu- Gore. The State answers that the Testimony V. on the Cost of Incarcera- argument equates tor’s the value of their tion. in making argument lives an for retribu- tion, taking argues that the prosecutor of the life of Dena Lynn justifies taking Terry Gore arbitrary prejudicial introduced an Clark’s life. factor into the determination his sen by eliciting tence testimony concerning the prose- with the State that the cost argument subject cutor’s of incarceration. The arose not an explicit weigh compare prosecutor invitation to the when the cross-examined Ms. relative merits of the lives of Clark and his Catanach from the Depart Corrections argument victim. The equated rebuttal prosecutor ment. The asked Ms. Catanach asking value of their lives in for retribu- average prison cost to house a inmate accepted tion. Retribution an basis for fifty and was told that the cost was about imposing permissi- the death and a per capita per dollars day. Defense coun subject prosecutorial argument. ble objection. sel made no Later the defense 153, Gregg Georgia, 183, 428 U.S. 96 pursued questioning issue a differ S.Ct. 49 L.Ed.2d 859 witness, Stewart, ent the Rev. on the sub (Stewart, Stevens, JJ., plurality Powell and ject of the value of human life and the opinion). prosecutor We note that the did taking ethics of the costs of incarceration personal not offer the characteristics of making into in capital sentencing account Lynn justification Dena Gore as for execu- decision. ting only Clark. The characteristics which It is well settled that the cost of incarcer- mentioned, were her defenselessness and legitimate ation is capital sentencing not a innocence, generic children, op- were consideration. Kemp, Tucker v. 762 F.2d posed personal to those to the victim. 1480, (11th Cir.1985) (en banc), sen victim, nine-year- class of of this Choice vacated, 1001, 106 517, tence 474 U.S. S.Ct. girl, old is a circumstance of the crime (remanded 88 L.Ed.2d 452 for reconsidera- purport Booth does not to bar. See Booth, light tion in (decision Mississippi, Caldwell v. 107 S.Ct. at 2534 n. 7 U.S. 105 S.Ct. murderer to attack a 86 L.Ed.2d 231 vulnerable victim is a (1985)), reinstated, culpability judgment factor which reflects on since F.2d (hat control). (1986), denied, circumstance is under his cert. 480 (1987); 94 L.Ed.2d 529 Brooks Moreover, prosecutor’s argu- rebuttal Kemp, (11th 762 F.2d Cir. concerning ment the worth and value of 1985), vacated, 1016, 106 478 U.S. response victim’s life was direct (1986)(remanded 92 L.Ed.2d 732 closing arguments of the defense. De- light reconsideration of Rose v. sentencing jury fense counsel advised the Clark, making they their decision (1986)), reinstated, L.Ed.2d 460 ‍​​‌​​‌‌​​‌​​‌‌‌‌​​​​‌‌​​​​​‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌​‌​‍judgment being “weigh life,” asked to the value of a 809 F.2d and that no one had said that Clark’s life Col saving.” was not “worth Defense counsel State, lier v. 101 Nev. 705 P.2d 1126 Lynn stated that Dena Gore’s life was . (1985) The State admits that the content gone, nothing there was could inquiry of the cannot be defended back, but ar- bring do to it but the now held gues object that failure to Terry waived this pros- Clark’s life in their hands. The is- sue, arguing and that the isolated ecutor for retribution was al- incident was not respond arguments lowed to fundamental error which warrants rever- argument, agree. defense. The defense we be- sal. We argument. of fundamental error We believe that the reaction of The doctrine prevent significant. a applied sparingly, to defense counsel is also His should be justice, and not to excuse miscarriage protest he now failure to what contends is in proper objections make the- highly sug- the failure to prejudicial serious and error Aull, N.M. court below. State gests potential preju- serious (1967), P.2d 437 U.S. apparent present dice was not to one dur- 20 L.Ed.2d 668 Instead, proceedings. the the defense conviction, regard a criminal the With argument, treated the matter as one for only is resorted to if the defen doctrine by evinced the later examination the appears indisputable or if dant’s innocence Rev. Stewart. guilt is that question of his so doubtful that, brevity We conclude because of the permit conscience to it would shock the testimony of the and the lack of further Manlove, conviction to stand. State subject by prosecutor, comments on the (Ct.App.), cert. de N.M. probability there is no reasonable that nied, 79 N.M. 441 P.2d 57 testimony changed signifi- the outcome or appeals imposition a dеfendant Where cantly affected the exercise of dis- penalty, the doctrine should be of the death making sentencing in cretion determi- sentencing applied only where error in the very testimony nation. The brief elicited sufficiently undermines confi proceedings prosecutor sufficiently prej- was not capital jury’s in the decision. The dence udicial to be considered fundamental error. question on review is whether there probability error reasonable VI. Comment on the Defendant’s Failure puteóme changed the Testify. Kemp, hearing. Tucker v. 802 F.2d Cf. Next, prose Clark asserts that the (11th Cir.1986) (using “prejudice improperly commented to the cutor prong” Washington, Strickland testify about his failure to and that this too 693-94, 2052, 2067-68, represents fundamental error. The State (1984), as the standard answers that none of the statements consti sentencing proceeding determine error, error, or fundamental and that tuted unfair). fundamentally object has waived the Clark’s failure to The court in Brooks noted the undeniable appeal. The State contends that issue arguing the execution impropriety of objects to which all the statements taxpayer’s would save defendant to his of candor with were references lack potential money. The court stated that testifying ex personnel medical as defense prejudice was somewhat minimized argues perts. The that Clark’s fail and the tentative- brevity of the comment explain certain details of his crime to ure to asserting it. prosecutor ness of the opinions. experts undermined their those Brooks, 762 F.2d at 1415. Tucker comments, Thus, prosecutor’s under by prose- regarded similar remarks court attack on the in the context of an stood improper. clearly unprofessional and cutor testimony, permissible. expert However, it courts concluded'that was both great had likely that the brief remarks Golding, experts medical Dr. One of the that, given impact and concluded adverse post- suffered from testified that Clark circumstanсes, there was no reasonable expert, syndrome. stress traumatic arguments improper probability that descrip- opinion on Clark’s part, based his changed outcome of the delibera- serving experiences in the of his while tion 1488; Tucker, 762 F.2d tion. See Golding expressed confidence military. Dr. Brooks, 762 F.2d at honesty cross-ex- with him. On Golding Dr. conceded that omis- amination to those The facts of this case are similar significant. part might be sions on Clark’s prosecu- in that the and Tucker Brooks Golding Dr. if he had prosecutor asked concerning testimony only tor elicited brief bindings with Clark prose- Also the discussed the cost of incarceration. legs. He found on the victim’s had subject in later were cutor did not return During not. closing argument prosecu- running away, that’s a little put- bit like opinions tor attacked the Golding of Dr. ting person in handcuffs and the hand- including his assertion that certain omis- cuffs aren’t good connected. What does sions misrepresentations by Clark were that do? So there’s a more insidious clinically significant: purpose here. But we don’t know what If telling he’s the honest truth to Dr. Terry because Clark has never else, Golding anybody going he’s he, told us why what he did that. But tell person the whole truth. can How what we do Terry know is that up say stand there important it’s not child, abducted this and presumably to know the whole truth. It’s ludicrous. raped her. And we don’t know whether care, you you And when put your when raped he vaginally her anally, stamp approval, Golding, Dr. Terry only anally. anything We don’t know Clark, telling truth, that he’s the whole else about that frenzied attack on this forthright, open, he’s and he’s and I be- child. What we do know is that there is lieve him. And he leaves out critical something very important to Mr. Clark details of they a crime. Whether were about this bondage kind of that we don’t not, clinically significant they is, know. He won’t tell us. So she she out, Terry left say Clark didn’t them. raped. And then she is executed. say He didn’t how else he used Dena The defense made no objection Gore, instance, say, he didn’t any- arguments. these thing bindings about what those on her prosecutor Comment upon a de- fact, limbs were about. he never has. fendant’s failure testify priv- violates the anybody He has never told about that. ilege against guaranteed self-incrimination Lies, lies, All way through. lies. by the Fifth and Fourteenth Amendments. The second set of comments to which Clark California, 609, v. 380 U.S. 85 Griffin objects came considerably pros- later 1229, (1965). 14 L.Ed.2d 106 Griffin argument ecutor’s jury. prose- The forbids either direct improper or indirect cutor addressing had finished the evidence prosecution. comments E.g., State circumstances which the de- Schrock, 433, 438, v. 149 Ariz. 719 P.2d presented fense had during its case-in- 1049, (1986); 1054 People Jackson, v. 28 chief. He then described the events of 264, 304, 149, Cal.3d 618 P.2d Cal.Rptr. 168 July 17th, is, that the evidence of the crime 603, (1980), denied, 623 1035, cert. itself, which he advised the to consider 1750, (1981). 68 L.Ed.2d 232 making sentencing their decision. After protection of the Fifth privi- Amendment describing preliminary Clark’s activities in lege fully applicable Artesia, he continued following with the phase murder trial. Estelle v. statement: Smith, 454, 1866, 68 Gore, He follows Dena up snatches her L.Ed.2d 359 Allsup at the store and takes her out to The standard generally Squaw where, used for Canyon Road at some evaluating allegedly improper

point horror, prosecutorial during this he binds one of comments is whether the language her used hands. We don’t rope see on the manifestly other. He intended to be or ties one of was of those hands. They’re such a character that together gentle- ladies would natu rally necessarily They’re wrapped men. take it to be you as would a com ment on the person keep restrain a failure of the accused person to testi getting fy. Mintzes, 1072, from away. Hearn v. 708 We don’t know ex- F.2d 1076 (6th Cir.1983); actly White, how the other hand was confined. United States v. 444 legs (5th Cir.), He binds her separately. wraps denied, F.2d 1278 He cert. 404 a cord right around the left and 92 ankle, separately Well, (1971); States, ties them off. Knowles v. United F.2d course, way, (10th that’s not the Cir.1955); tiewe McCracken v. people up if keep State, we want to (Alaska 1967); them from 431 P.2d Lincoln, Haw.App. testimony expert nothing to do with the State Rather, Hunter, prosecutor 29 witnesses. crime, summarizing the facts of the so far Wash.App. 627 P.2d him, they were known and comment- adopt today.6 test fill in on the defendant’s failure to object defense failed to to these Since the gaps. A violation of the rule is Griffin closing arguments, right to raise the repeated upon evident focus is waived. See SCRA appeal issue on us,” is, persons failure to “tell those 12-216(A). ques- is limited to the Review courtroom, certain details of the crime. tion of whether violation rises to the possible prejudice to Clark stems from See State of fundamental error. level the inference that Clark’s use of the bind- Chavez, 676 P.2d 100 N.M. ings especially sinister since he chose (Ct.App.), purpose. argu- not to disclose their (1984). 675 P.2d 421 If the violation consti- proceeded objection. ment without Where error, tutes fundamental failure to seek a object the defendant fails to and chooses ruling court does not trial bar review verdict, instead to his silence is await requires appeal. See State reversal on improper by of the waiver comments Ramirez, 268, v. N.M. 648 P.2d 307 98 Gruender, See State v. prosecutor. 83 (1982). 327, 329, 1082, (Ct.App.), N.M. 491 P.2d 1084 agree that the first set of com We denied, rt. 324, 83 N.M. 491 P.2d ce compro by prosecutor ments did not (1971). 1079 This rule is in nu- followed right mise Clark’s to remain silent. There merous states where violations Grif- nothing suggests is the record that See, e.g., People v. rule are involved. fin prosecutor manifestly argu intended these Murtishaw, 733, 756, 29 631 P.2d Cal.3d ments as a comment on Clark’s failure to 446, 459, 738, 751, cert. de Cal.Rptr. 175 testify. jury To decide if the would natu nied, 922, 1280, 71 455 U.S. 102 S.Ct. rally necessarily assume the state State, (1981); Clark v. L.Ed.2d 363 464 comment, ments to be such a the statement Davis, People v. 331, (Fla.1978); So.2d 333 precise must be viewed within its context 568, 569, 879, 880, Ill.App.3d 125 80 Ill.Dec. and not in isolation. See United States v. 331, (1984); Common 466 N.E.2d 332 Robinson, 1188, (6th Cir.), 651 F.2d 1197 Brown, 632, 640, wealth 392 Mass. 467 denied, 875, 102 351, cert. 454 70 U.S. State, (1984); Martin v. 188, N.E.2d 195 (1981); Hunter, Wash.App. L.Ed.2d 183 29 cert. 37, (Okla.Crim.App.1983), 674 P.2d 41 220, at 627 P.2d at 1342. We believe denied, 1081, 1448, 104 S.Ct. 79 taken would have these remarks Neal, 73 (1984); State v. L.Ed.2d 767 Or. made, is, they within the context 817, review 816, App. 699 P.2d permissible credibility on the attack denied, 663, (1985). 704 P.2d 514 299 Or. Golding. expert, the defense Dr. possible reviewing After the violation for error,

We we conclude that there view the second set of com fundamental differently. disagree probability that the error ments with the no reasonable argument significant was a factor in the State’s would also delib- in relation to the rest of the understand these comments to be within erations evi- aggravating explain the context of Clark’s failure to dence before them. psychologist. of the crime known to the matter to his context factors rape concerning kidnapping, made had and mur- which the second statement was Supreme error did not contribute 6. The United States Court has declined that the constitutional was, therefore, improper harmless. See to hold that comments in violation of to the verdict and 24, 828; always require Chapman, see Griffin Rule are harmful or 386 U.S. at 87 S.Ct. Frank, California, Chapman 589 P.2d 1047 automatic reversal. 386 also State v. 92 N.M. (1967); (1979); Lopez, 105 N.M. 734 P.2d U.S. 17 L.Ed.2d 705 see Texas, (Ct.App.1986), quashed, also cert. Satterwhite v. However, Martin, N.M. 734 P.2d 761 State v. Jones, (Ct.App.1972); exposed, prosecution State v. where the error has 498 P.2d 1370 (Ct.App.1969). prove beyond the burden a reasonable doubt N.M. Lucas, (sentence affirmed). overwhelming. Gray v. der of the victim were Cir.1982), (5th prejudicial effect of inference F.2d prosecutor’s 910, 103 might from the have drawn remarks, improper in relation This remains true with the murder evidence, by strength of the rest of the underlying felony if the of a victim of an reasons, we comparison minor. For these killing is to avoid arrest and motive for the do not that the outcome believe prosecution felony. for the earlier Ha See Be- the error. deliberation was affected rich, applica The correct 813 F.2d at 1104. not rise to the level cause the violation does 31-20A-5(G) similarly nar- tion of Section error, will not reverse of fundamental we eligible murders for the rows the class of the verdict. section, penalty. the mo- Under killing prevent must be to tive for the Aggravating Circumstances. VII. crime, testimony in a crimi- reporting of a Section Clark attacks for the vic- proceeding, nal or retaliation 31-20A-5(G) applied his case. Under testimony. previous tim’s See NMSA capital sentencing proce Mexico’s New 31-20A-5(G). this Consideration dures, unanimously find be aggravating circumstance fur- factor as an specify at yond a reasonable doubt and preventing thers the state’s interest vic- aggravating circumstances least one of the attempting being tims from killed felons enumerated in Section 31-20A-5. NMSA prosecution. This to avoid arrest and Here, (Repl.Pamp.1987). 31-20A-3 § reasonably imposition of a justifies factor findings that made the unanimous more severe sentence. Lynn Dena Gore was com the murder of remaining question is whether Sec- kidnap during mitted the commission of a 31-20A-5(G) applied in properly was tion 31-20A-5(B), and was the ping, Section instructed that it this case. was murder of a witness to a crime for beyond must find a reasonable doubt crime, purpose preventing report of that the victim was a witness to a crime and 31-20A-5(G). Clark claims that Section prevent murdered to her from that she was aggravating “murder of a witness” circum Ample sup- reporting that crime. evidence is if it is construed to stance overbroad finding aggrava- ports include cases where murder follows anoth testi- ted existed. Witnesses circumstance against er crime the same victim. See kidnapped admission that he fied Clark’s 862, 877, 103 Stephens, Zant v. Gore, Lynn her to his brother’s Dena took (“an (1983) raped They testified that ranch and her. aggravating genuinely circumstance had told them that he became “fran- Clark eligible persons the class of for the narrow tic,” gun took a and shot her to death. He reasonably justify penalty and must to have stated that he believed he is said imposition more sentence on of a severe go her that would be could not let “because compared to others found the defendant tape guilty recorded the end for him.” His murder”); Godfrey Georgia, guilty of jury. plea played for the 420, 100 Also, prior of Clark’s con evidence kidnapping for and criminal sexual viction aggravating considers When penetration admitted for the limited “murder of a witness” dur- circumstance of showing his motive commit purpose of evaluating the ing capital sentencing, it is ting killing. His earlier conviction was why the mur- or reason victim was motive given information largely a result of for the murder dered. When the motive six-year after police by old victim arrest, the class to avoid detection Clark, 104 had released her. See State v. adequately is narrowed of murders (Ct.App.1986). 722 P.2d 685 N.M. Harich eighth purposes. amendment See Lynn (11th decision to kill Dena Gore Since ‍​​‌​​‌‌​​‌​​‌‌‌‌​​​​‌‌​​​​​‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌​‌​‍his Wainwright, 813 F.2d (1987), likely release her was influ Cir.), rather than 828 F.2d 1497 reh’g granted, by experience, the evi- enced his earlier 844 F.2d 1464 opinion reh’g, showing made a to show his mo- never that the relief was highly relevant dence was reason, necessary. killing. For that for the tive admitted, properly ac- criminal record was Supreme Court Rule 23-107 authorizes instruction, limiting in or- companied by a coverage proceedings television of criminal killing. purpose for the der to establish the specified guidelines pro accordance sentencing proceeding In a viding safeguards to ensure that media all evidence admitted at the may consider coverage shall not interfere with the defen trial, phase may guilt-innocense process right due to a fair trial. See dant’s of other crimes when of- include evidence grants SCRA 23-107. The rule motive, addi- proof fered as as well as judge plenary district discretion to limit particu- tional evidence which coverage good camera cause. SCRA aggravating circumstances. NMSA lar 1986, 23-107(A)(2). If the defendant ob 31-20A-1(C) (Repl.Pamp.1987). coverage jects to media he must make a argues further the State has showing preju prima facie that he will be aggravating count” able to “double been by coverage. See diced the media SCRA involving “every since case circumstances 23-107(G)(2); Hovey, State kidnapping murder in the commissiоn of N.M. 742 P.2d A * * * necessarily will also involve ‘mur- general coverage assertion that will ” aggravating der of a witness.’ two nervous, unsupported make the defendant factors, however, are not subsumed one by affidavits which address the discretion killings kidnap Many the other. within ex rel. ary standard articulated in

victims, all, may moti- but no means Mexico Press Association v. New Kauf escape pros- the desire to criminal vated man, (1982), 648 P.2d 300 requirement ecution. The the State Hovey, 106 N.M. at not sufficient. See prove beyond a reasonable doubt that the 303, 742 P.2d at 515. killing the elimination motive for the was pretrial In this case Clark’s motion bar sufficiently potential of a witness distin- of the entire coverage sentenc- television guishes killing type of this from other ing proceeding Subsequently, denied. killings during committed the commission requested that court were to Clark «/the Furthermore, kidnapping. killing dur- limit grant a motion filed the State to kidnapping ing the commission of a agd coverage juvenile witness- media certain killing prose- motivated a desire to avoid es, also Clark then court should allow crimes, kidnapping, cution for the or other testify of tele- without distraction aggravating can co-exist as circumstances The motion was not ruled vision cameras. proved beyond if both are a reasonable upon became moot when the as the issue Wainwright, Harich v. See doubt. 813 proposed juve- to call the State chose not (11th Cir.), reh’g granted, F.2d 1082 828 pursue nile Clark did not witnesses. (1987), opinion reh’g, 1497 844 F.2d issue, any failed to mention and he later (sentence; affirmed); F.2d 1464 coverage in problem media potential (11th Wainwright, Adams v. 764 F.2d 1356 Thus, the claim was his motion to allocute. denied, Cir.1985), 1073, 106 cert. 474 U.S. appeal. preserved and not abandoned (1986); Gray 834, 805 S.Ct. 88 L.Ed.2d 1986, 12-216(A). Moreover, Clark SCRA Lucas, 677 F.2d 1086 (5th Cir.1982), cert. showing request, no in his conditional made denied, 1886, 910, 103 76 461 U.S. S.Ct. otherwise, good cause by affidavit or that (1983). 815 L.Ed.2d coverage of his allocu- to bar media existed point this of em>r. He is overruled on tion. Coverage of Allocu- VIII. Media Jury. tion Jury IX. Instructions. argues that the trial court Clark Mitigating Nonstatutory Circum- coverage his by allowing television erred stances. disagree. Clark abandoned allocution. We argues the refusal that pretrial request to bar tele his conditional case, and, jury his instruction any submit to coverage vision tendered 306 2320, (1988) (refusal 155 mitigating 101 L.Ed.2d nonstatutory

concerning specific capital cases proffered error.7 In instruction to did to submit circumstances the sen is entitled to have mitigating the defendant prevent full consideration not mitigat tencing any jury consider defense). presented by We do not evidence 481 ing Dugger, evidence. Hitchock v. encouraged that the instruction 1821, 393, 347 107 S.Ct. factors, nonstatutory jury to discount Ohio, (1987); 438 U.S. Lockett v. see also ag- thereby increasing the likelihood that (1977). 586, 2954, 57 L.Ed.2d outweigh mitigat- gravating factors would pursu jury was instructed In this case factors, suggests. as Clark 1986, it that must ant to 14-7029 SCRA rejected previously This Court a similar circumstances,” mitigating consider “all challenge to the current instruction’s any “mitigating that circumstance Instruction, Jury predecessor, Uniform conduct, thing which circumstance or 683, Compton, 39.30. Criminal impose you would to decide not to lead 837, (no 695, refusing error in listed the penalty.” The instruction in- proffered instruction where statutory mitigating circumstances to consider circumstances structed evidence, then instructed which there was denied, mitigating), 479 U.S. deemed cert. “anything it must consider L.Ed.2d 107 S.Ct. you lead else which would believe specific imposed.” adhere the view that writ- the death should not be We Finally, consider nonstatutory mitigating was told to list of circum- ten family “character, history and emotional required is not where the instruc- stances mitigat history of defendant which are given tion indicates that the list of enumer- ing.” exclusive. ated factors Free, People v. 94 Ill.2d 69 Ill.Dec. nonstatutory miti- concerning Evidence Cf. denied, 447 N.E.2d cert. gating presented to the factors was (1983); extensively argued by defense and was State, persuaded these 306 Md. 507 A.2d counsel. are not Bowers v. op- a full instructions did afford Clark sentencing jury con-

portunity to have State v. Lin L.Ed.2d mitigating im- give sider effеct to der, S.C. 278 S.E.2d 335 might pulse nonstatutory which the factors Likewise, Mexico we conclude New suggested. Dugger, have Hitchock require- such legislature did not intend Cf. 393, 107 1821, L.Ed.2d 347 481 U.S. S.Ct. 95 Felony Capital it the ment when drafted (1987) jury had the (judge’s instruction to 1976, Sentencing Act. 31- See of non- precluding effect of consideration (Orig.Pamp. Cum.Supp.1988). & 20A-6 circumstances); statutory Skip- mitigating 1, Carolina, 106 per v. South 476 U.S. Legal 2. Standards. (evidence 1669, (1986) of S.Ct. capital jury given was Uni incarcerated

defendant’s conduct while consideration); 14- Jury 14-7028 and form Instructions wholly from excluded points out that these 164, 7030.8 Clark while Lynaugh, Franklin v. 487 U.S. nonstatutory mitigating in- under the influence of mental or emo- circumstances dant was disturbance; cooperation by de- cluded refused were: the the defen- in the instruction tional authorities; during likely fendant commended service was the defendant is dant with honorably discharged 1978, the armed was from See NMSA Section 31- be rehabilitated. post-trau- from the defendant suffered mitigating forces: matic for circumstances listed 20A-6 disorder; and, poses defendant stress the statute. significant confined. no threat to others while Jury 8. Uniform Instruction 14-7028 states: mitigating statutory in- circumstances whether or more You must first consider one given cluded were: in the instruction which charged aggravating circumstances any significant histo- the ry did not have defendant present separate- in this You must decide case. prior activity; of the defendant’s criminal aggravating ly as to each the circumstances. criminality of capacity of appreciate the his you aggravating cir- In order for to find an re- to the conduct or to conform quirements conduct cumstance, you agree unanimously. You impaired; must the defen- the law was penalty the require imposed. to unanimous- fore death can be instructions statutory aggravating circum- ly However, find a instructed that even beyond a reasonable doubt stance exists aggravating outweigh circumstances miti- imposed, a death sentence can be before gating circumstances is free to not legal stаn- provided is not impose penalty jury is of death. The aggravating circum- weighing for dard to consider both the directed defendant and mitigating circumstanc- against stances recognized the crime. We have sub- renders his sen- argues that this es. Clark jective standard must used for re- this eighth amendment unreliable under tence Garcia, view. 99 N.M. standards. denied, cert. 664 P.2d 462 U.S. balancing ag- legal for Specific standards 2464, 103 S.Ct. 77 L.Ed.2d 1341 against mitigating gravating circumstances Zant, see also (1983); 462 U.S. at sentencing pro- in a circumstances J., (Rehnquist, concurring constitutionally required. ceeding are not judgment) (“sentencing decisions rest on a Stephens, 862, 876 n. Zant 462 U.S. far-reaching inquiry into countless facts n. 77 L.Ed.2d 235 type and not on the and circumstances Cheadle, State v. (1983); proof particular returning elements that denied, cert. (1983), Strickland, Ford v. does”); a conviction 945, 104 80 L.Ed.2d 475 (11th Cir.), 696 F.2d Franklin, see also 108 S.Ct. at 2320 required method is (holding specific that no (1983) (“While aggra- an the existence of balancing mitigat- for the Constitution factors). aggravating vating or circumstance is a fact ing and susceptible proof under a reasonable were used indi- The instructions which preponderance or standard the rela- doubt mitigating and weighing cate that weight not”) (citations omitted). tive circumstances aggravating adequately focused the These instructions aggravating circumstances find that particularized na- jury’s attention on the outweigh mitigating circumstances be- you complete present the form for imposed shall to be until cannot consider the you speci- aggravating You shall indi- found that one or more of the circumstance. have aggravating each proved been fied circumstances has cate whether: beyond unanimously a reasonable doubt. (1) you are unable prepared you special A form has been present; aggravating circumstance was charged. aggravating each of the circumstances (2) unanimously aggravat- you find that case, aggravating cir- In this cumstances, as to each of present. The fore- circumstance was pоssible three verdicts: there are part finding sign each form. this man shall (1) finding beyond doubt that a reasonable return to the courtroom. You will then exists; aggravating circumstance 1986, 14-7028. SCRA aggravating finding circumstance Jury Instruction 14-7030 was sub- Uniform exist; does following form: mitted (3) being agreement. an unable to reach circumstance(s) any aggravating you If find aggra- complete the form for each You must aggra- charged you weigh those must that vating circumstance. circumstance(s) mitigating against any vating proved you unanimously had find the state If you Af- have found in this case. circumstances beyond that one or more of a reasonable doubt circumstance(s) aggravating weighing the ter present, you aggravating was circumstances the circumstances, weighing mitigating and the aggravating complete the form for each shall other, considering against both each them find, finding, you indicating your circumstance crime, you shall deter- and the the defendant sign part. this have the foreman sen- defendant should be whether the mine unanimously you as to are unable to If ag- imprisonment. The life tenced to death or you any aggravating or if unani- circumstance circumstance(s) outweigh the gravating must any aggravating mously circumstance find that pen- mitigating the death circumstances before you complete present, shall the form was alty imposed. be can circumstance, indicating aggravating for that However, aggravating the circum- even if sign finding, the foreman your and shall have stance(s) outweigh(s) the circum- penalty to part. will then consider the this You stance(s), may penalty at life you set the still imposed. be imprisonment. proven that you state has not If find that the 1986, 14-7030. aggravating SCRA circumstances or more of the one aggravating unique character- the to be con- the and the circumstances ture of crime defendant, by jury pursuant re- to Section sidered the istics of the individual statutory aggravat- 31-20A-2 the listed quired the Constitution. circumstances). procedure ing This chan- capital jury argues that a similarly Clark jury and the decision of the nels reason- required beyond be to find should of discretion avoids the exercise unbridled penalty death is the doubt the able that penalty the determining whether death previ- have appropriate punishment. We imposed. should be State v. argument. ously rejected this Finnell, 732, 736, 688 P.2d The to con jury is also instructed denied, the sider “both defendant himself and the making its final crime” determination penalty. the impose whether death other than

3. Consideration Factors This is SCRA 14-7030. consideration Aggravating Statutory the Circum- Zant, See capital jury. properly before a Imposing the stances as a Basis for 878-79, 2743-44. S.Ct. at Death. Sentence of jury the a statu Once has determined that requested exists, judge The trial refused Clark’s tory aggravating circumstance jury effect the was statutory aggravating instruction to the that circum the anything stance^) factors, allowed to take into account outweigh mitigating the charged statutory ag- than other the two aspects free all jury is to consider for de- as a basis gravating character, circumstances of the defendant’s as well as ciding penalty. impose itself, making its decision of crime final give this instruc- argues that the refusal impose penalty or not to whether impermissible risk that tion created an For these reasons the refusal death. aspects of back- jury considered instruction not error. Clark’s tendered consideration, ground, under the offense Unanimity Instruction. prior for criminal sexual conviction aggravating penetration as circumstances. jury was instructed properly re- requested instruction was regard finding they reached court fused. imposed appropriate sentence to be provid must unanimous. its threshold decision When makes to unani cir- allowed them aggravating of an ed with forms which as to existence impris life cumstance, mously Clark to either explicitly it is restricted did not The verdict form statutory aggravated circumstances onment death. Then, place sign if “charged.” 14-7028. contain SCRA imp concerning to be any “сharged” aggravating divided jury finds in weigh those argues that the court’s circumstances, must osed.9 with NMSA was in conflict against struction aggravating circumstances That statute directs present. Those Section 31-20A-3. mitigating circumstances life im the defendant outweigh court to sentence aggravating circumstances a sentence of death prisonment, “[wjhere before mitigating circumstances jury does unanimously specified, or the SCRA not imposed. can be death sentence finding, required not make the There is no indication 14-7030. a unanimous verdict.” to reach facts and circum- is unable to consider Thus, argues, indi Id. the statute statutory aggravat- Clark than the stances other verdict, a decision is a process. split that weighing in this cates ing circumstances given Guzman, unanimity instruction the therefore See State v. the statute and by the court contravened P.2d 676 error. This conten 3548, 82 851 constitutes reversible 104 S.Ct. L.Ed.2d statutory injunc- (limiting is without merit. also 31-20A-5 tion see jury form, sign in the the was re- foreman to event proposed verdict which was the 9. judge, place a divided. fused the trial contained court, Mexico, concerning no is taken the trial not the vote is directed the tion State, mitigating circumstance; any existence jury. Brogie v. Cf. findings regard made; no in this are and all (Okla.Crim.App.1985). Sec mitigating must evidence be considered require that 31-20A-3 does not tion jury. employed form The verdict specific unanimity a jury return verdict Maryland at the time Mills decided was absent. required sentencing jury spe- to make unanimity also claims that the in- Clark particular findings mitigating cific that cir- impermissibly coercive be- struction exist, or cumstances either existed did not charge, together that with Uniform cause proved by and that fact had a this been 14-7043, upon imposed Jury Instruction Thus, preponderance of the evidence. reject We jury duty to consult. divided probability that once found existed argument previously Wé have this also. presence aggravating of an circum- as these that instructions such can- decided stance, jurors agree unless the were to all encourage improperly construed to not be particular mitigating on the of a existence jurors to a decision to individual abandon circumstance, might engage in they never a life sentence favor sen- impose weighing ap- process deliberate the purpose of death the sole sim- tence Mills, propriateness penalty. the death maintaining unanimity. Compton, 104 ply Instead, they might 108 S.Ct. at 1868. 726 P.2d at 848. N.M. impose automatically the death sentence though jurors might even individual believe Mitigating Role of Circumstances— mitigating that certain existed factors “Mills Error”. taken into consideration. should be argues also that the instruc danger a similar exists We do not believe of the principles tions violated recent with the used in this case. instructions Supreme case of States Court Mills United trial, At Clark’s was instructed Maryland, U.S. they unanimously beyond that find must (1988). Mills, Court aggravating cir- reasonable doubt resentencing held that remand for was re Similarly, existed. cumstances quired prob where there was a substantial any finding they that was instructed jurors thought they ability that the were appropriate regarding reached considering any mitigating precluded from death) (life imposed imprisonment or to be unanimously agreed they unless evidence provid- The jury must be unanimous. particular existence of a such cir on the findings. No other for these ed with forms As at 1870. we have cumstance. requested jury. findings formal were recognized, ‍​​‌​​‌‌​​‌​​‌‌‌‌​​​​‌‌​​​​​‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌​‌​‍it is well established that pursuant to SCRA instructed sentencing jury allowed to consid must be you aggra- find an 14-7029 that “[i]f evidence. The mitigating er all circumstance, vating you consider all must has now decided Supreme Court Mills mitigating A circumstances. probability there that one where is a that conduct, circumstance circumstance consideration, juror could block such you lead decide not thing which would sentencing jury to effectively require the impose penalty.” the death judgment penalty, impose the pursuant instructed was also Id.; see also North Car must be vacated. 1976,14-7030 find you that SCRA “[i]f 301, 364 S.E.2d Lloyd, 321 N.C. olina circumstancе(s) aggravating jurors reach unanimous (requiring weigh charged you aggravating those regarding presence mitigat decision circumstance(s) any mitigating cir- against circumstances), and remanded vacated found in this case.” you have cumstances — Maryland, Mills light instruction, argues this SCRA -, L.Ed.2d 1976, 14-7030, suggests unanimously as to exist- sentencing pro- they must note that the since it mitigating of a circumstance markedly differ ence Maryland in cedures used cir- aggravating to balance jury directs the Mexico. New those used in New from against mitigating guilty plea supports finding. cumstances circum- such a While they disputes validity do not of the second stances have We Clark found. Mills, question circumstance, agree. aggravating As stated “the murder of a wit- petitioner’s interpretation report purpose preventing whether ness for the sentencing process crime, is one a reasonable of a for the reasons stated Section from the instructions argument could have drawn am- reject VII we that and find given by judge and from the ver- the trial ple support exists to such a find- evidence employed.” 108 S.Ct. at 1866. dict form Id. ing. interpretation

For a to reach the attempt to discuss Clark makes no ignore urges, would have to mitigation argue that a the evidence instruction, previous 14- SCRA imprisonment sentence of life should have 7029, that, they aggravat- should decide an trial, imposed. major mitigat At exists, been they then ing circumstance presented to the consist evidence mitigating circumstances. consider all purport psychological ed of evidence which to the The first instruction submitted ed to criminal demonstrate behav jury was to “consider these instructions incident ior was result of a traumatic pick out one instruction a whole” and “not during rescue of which occurred Viet parts of instruction or instructions or an people during namese his service with boat 1986, 14- disregard others.” SCRA Navy. psychologists proposed Two jurors presumption There is a experience, that this traumatic followed their instructions. will adhere to Filipino prosti his involvement with child Chаse, P.2d 241 tutes, following came to the surface a blow conclude that no reasonable would later, years triggered on the head five pre- these instructions to have understood the attack on his first victim and later the jurors considering clude individual from rebuttal, Lynn attack on Dena Gore. On any mitigating they evidence believed was shipmate presented the State a former present unless the entire were to who testified that he recalled no inci unanimously agree on the existence of a combat, pi helicopter assaults on dents circumstance. particular such ships, people or as de rate wounded boat psychologists. to his Oth scribed Clark Supreme X. Court Review Under Section mitigating present er evidence which Clark 31-20A-4(C). voluntary guilty plea; ed consisted of his Sentencing Capital Felony Under Navy; in the his honorable service record Act, 31-20A-4(C), are to review Section we good and his conduct while incarcerated and find that sentence a sentence of death prison awaiting trial. (1) support invalid if: the evidence does prospects for The evidence of Clark’s statutory finding aggravating cir- A inconclusive. defense rehabilitation was cumstance; (2) supports evidence good that he had a expert who testified mitigating circumstances finding that the treating rate sex offenders also success circumstances; outweigh aggravating program did not include stated that his (3) imposed un- the sentence of death was during those who killed the commission prejudice passion, the influence of or der expert the sexual offense. Another testi- factor; arbitrary the sen- any other rapist-murderer was the most fied that a disproportion- of death is excessive tence offender to treat. difficult sex cases, imposed in similar ate considering crime and the defen- both the mitigating A review of the evidence 31-20A-4(C) (Orig. dant. supports determi- circumstances Pamp. Cum.Supp.1988). & Guzman, 100 N.M. nation in this case. See 756, 761, 676 P.2d argue that insufficient

Clark does nоt 1256, 104 finding of the first supports evidence circumstance, support does not during murder evidence aggravating kidnapping. finding circumstances His the commission of outweigh aggravating reject circumstances We argument Clark’s that he was gain crimes. pool unable access to this of cases. Garcia, As we noted 99 N.M. at Regarding statutory inquiry the third duty P.2d at it is the of the defen- 31-20A-4(C), mandated Section Clark attorney dant’s supply the Court with imposed submits that his sentence un- information of similar cases. The informa- der the all of arbitrary influence of public Id.; tion is a matter of record. see factors which he has raised thus far. For 14-3-1 -25 (Repl.Pamp. §§ previous the reasons in detail in discussed 1988). reject sections of opinion, this we that ar- gument. XI. Cumulative Error.

Lastly, this Court under Section 31-20A-4(C) argues Clark the sentence in impact review that the cumulative order to it determine if is “excessive of the errors or which occurred at the sentenc- disproportionate penalty imposed proceeding requires reversal. We have cases, considering similar both the crime addressed his claims and decided either and the We defendant.” established our no that errors were committed that cer- guidelines for this review State v. Gar tain errors which were waived did not indi- cia, 99 N.M. 664 P.2d vidually amount to error. fundamental We persuaded are not there that is a reason- (1983). reviewing probability able that cumulative preju- guidelines sentence under these we will errors, dicial effect of testimony those compare other Mexico cases in New cost of incarceration and comment on capital been defendant has convicted of testify, changed Clark’s failure to the out- aggravating murder under the same sentencing hearing. come of the The doc- circumstances, and received then either the applica- trine fundamental error has no imprisonment. sentence of death or life Id. where the not tion record does reveal the will, however, We only review this issue type chаnge of cumulative error that would when raised. Id. Since does not Hamilton, result. State v. 89 N.M. refer this Court to similar New Mexico 746, 751, 557 P.2d comparison, cases for we will not under CONCLUSION take such a this time. review at initially Twenty-three issues raised were Rather than refer this Court to similar docketing in Clark’s statement. The issues review, proportionality cases for a Clark not addressed here not briefed argues guidelines that the Garcia are un- are, therefore, Foye, abandoned. State v. argues duly guide- restrictive. He (Ct.App.1983). N.M. 671 P.2d lines should be broadened this Court to reasons, foregoing For the we determine comparison include cases in with which the Terry convictions of and the penalty sought death could have been but upon imposed him for the death not, cases in as well as which the Lynn murder of Dena Gore should be af- sought but which ended firmed. plea guilty noncapital either in to a IT IS SO ORDERED. offense or with the failure to find alleged statutory ag- the existence of the BACA, JJ., STOWERS and concur.

gravating circumstance. present the State that Clark does not this SOSA, C.J., specially concurs. question Court with a to review. He does allege, showing, make RANSOM, J., dissents. disproportionate sentence would com- SOSA, Justice, specially Chief pared pool to this of cases. This court does concurring. give advisory opinions. See State v.

Hines, I majority opinion concur in the insofar kidnap- itas affirms Clark’s conviction for dissent, jury to other

ping first-degree murder. I return a sentence than death. Lockett, Therefore, the portion under trial court however, opinion that of the from imposed prior should that sentence have to jury’s imposition of the the affirms jury’s penalty; the on the death estimation, deliberation my trial death In the penalty. jury and the should have in- then been in not Clark on the court erred structed on the sentence. informing charge and in not the kidnapping jury, on the death prior to its deliberations Supreme has held Court that consid penalty, as to the sentence which by jury capital eration a a of convictеd kidnapping received on the would have dangerousness and felon’s future the rela con- charge. disagree majority’s I with the tionship dangerousness of that to the that, sentencing prerogatives “The clusion length serve prison of time he must in possible length of judge, of the or the proper trial paroled subject before he can be a sentence, simply a have no relevance life jury’s for the when it sits to deliberation as Eighth under Amendment standards decide whether the defendant should re they developed penalty. so far.” the have ceive death v. Ra California mos, 463 U.S. 103 S.Ct. 77 L.Ed. Supreme As I read the Court’s decision Texas, 2d 1171 Jurek Ohio, in Lockett (1978), length the jury Here Clark the that wanted know capital time felon serve a convicted would lengthy prison kidnap he faced term for a prison crime he for another for which If ping. trial court would im the have should, request has at the been convicted posed eighteen-year for basic sentence defendant, by be considered kidnapping, it could have increased that a when mitigating as factor delib- one-third, twenty- sentence for a sum of penalty. on the death The Court erates addition, years. In four trial court wrote: could enhanced that sentence an have Eighth Four- conclude that [W]e twenty-six a sum of years, other two require Amendments that the sen- teenth years. If court then ordered that sen * * * precluded con- tencer be from consecutively tence be served any as- sidering mitigating as a factor previous year twenty-four Clark’s pect record a defendant’s character or conviction, on the sen earlier these of- any of the circumstances of the jury, to the tences were made known proffers a the defendant fense that known, jury then have before it be would less than death. basis of a sentence gan penalty, its on the deliberations Id., (emphasis at 2964 already had been that Clark sentenced to original). years fifty prison. Such information clearly been a would havе already had been The fact that factor, Lockett, may have under kidnapping unquestionably convicted of a changed the outcome of the decision part that his of his “record.” fact penalty. on the death salutary kidnapping is not a conviction for record, in the part his same sense addition, mandatory In I make it would good con- concerning facts his character or one, in a situation such as this where be, might is irrelevant. It seems duct capital felon asks that the convicted me in Lockett that the Court v. Ohio time length informed to which as to crime, concerned both about nature another he has sentenced on been mitiga- instruct the on for the trial court to proffered information provisions tion as about the motivation behind Section 31- as well of NMSA that, proffering defendant’s information effect “An (Supp.1988), 21-10 impose a was sentenced persuade the inmate of an institution who —namely, to opinion, as the result of the my imprisonment than death. to life sentence less felony eli- becomes attempt proffer his sentence commission of a hearing after he has gible parole part of his kidnapping conviction was years of sentence.” thirty served persuade intended to and was record

gig 31-21-10(A). NMSA I am aware L.Ed.2d (Repl. Section 33-2-34 Ramos, (quoting California Pamp.1987), provides for certain “meritori- 992, 998-999, 103 463 3446, U.S. S.Ct. 3451- ous deductions” to be subtracted from a 52, (1983)). 77 1171 present L.Ed.2d In the served, convicted felon’s time I but read case I majority’s find the scrutiny of the affecting that statute as not the more nar- jury’s sentencing determination to be con- rowly provisions drafted of Section 31-21- stitutionally inadequate. I would reverse 10, capital so that a felon who is sentenced the death sentence and remand this case to imprisonment may eligible to life not be for the trial court for a sentencing new hear- parole thirty years. before he has served ing to be conducted in a manner that is not inconsistent with the above.

This information too should have been presented jury deliberating to the over RANSOM, (dissenting Justice Clark’s sentence. Had the known part). possible fifty-year both of Clark’s previous convictions, and of the manda- I respectfully dissent; I would remand tory thirty-year imprisonment under a life for a sentencing proceeding new in which sentence, they then would have known that would impose decide whether to the possibility eighty years Clark faced the death imprisonment. sentence or life prison, or a true life term. Then the The death proceeding in the jury would have been faced with an actual trial majority opinion court and the of this imposition alternative between of the death conspire Court legislative defeat penalty imposition of a life sentence. mandate that determine whether however, happened, As it especially after should be sentenced to defendant bewildering testimony presented at tri- imprisonment. death or 1978, life al, prosecutor’s and after closing argu- 31-20A-1(B), 31-20A-2(B) (Repl.Pamp. §§ ment to the effect that Clark would certain- 1987). legislature clearly provided has ly prison, be released from the jury’s choice that an imprison- inmate sentenced to “life death, one of life vs. but of death ineligible parole ment” is hearing releasing dangerous perhaps vs. felon in thirty years before he has served of his period a short of time after he had entered 1978, 31-21-10(A) sentence. NMSA § the penitentiary. constitutionally It was (Supp.1988). imposition death, For impermissible present this latter choice weigh presented the evidence jury. circumstances of the crime and as to I reasoning with the Court’s any aggravating circumstanc- v. Ramos: “What is essential is California es, 31-20A-1(C) 31-20A-2(B), Sections possible have before it all (a) (b) and choose between either death or information about the individual imprisonment possibility pa- life without defendant whose fate it must determine.” thirty-year period role for a definite to be- 463 103 U.S. S.Ct. at 3455. Here gin no sooner than a time made certain did not have all relevant informa- sentencing authority under the of the trial it, tion before trial because-'the court choice, reviewing court. this give did not it this information on Clark’s legislative Court must adhere to the man- request, the court committed fundamental penalty imposed date that the death not be error. “States cannot limit the sentencer’s if the sentence is found to have been influ- consideration of relevant circumstance factor, i.e., by any arbitrary caprice enced impose that could cause it to decline to speculation. 31-20A-4. penalty.” McCleskey Kemp, 481 v. [death] Special scrutiny. 279, 306, 107 accept I without res- U.S. S.Ct. 95 L.Ed. legislature’s qualitative 262 ervation the constitutional au- 2d difference “[T]he Gregg Georgia, v. punishments thority from under 428 death all other re- U.S. (1976), quires correspondingly greater degree 96 49 L.Ed.2d 859 scrutiny capital sentencing craft death determi- statutes consistent with nation,” Mississippi, Caldwell eighth prohibition against 472 U.S. amendment’s

314 (1988), 1281 while fun- This Court P.2d punishment. unusual cruel and waived, rights may sentenc- be fundamen- legislature’s our damental has held constitutional. State error cannot be waived and such error statutes tal Garcia, cert. P.2d 99 N.M. trial. requires a new denied, preclude application of the doctrine of To However, in order to L.Ed.2d error, majority opinion re- fundamental reliability decision sub- assure Cheadle, lies on to the ultimate and irrev- jects an individual (1983), sanction, penalty determina- ocable scrutiny special of fundamen- require tions (1984), held fundamental error did which Compton, 104 error claims. State v. tal the defendant failed to apply not when denied, 837, cert. 683, 479 726 P.2d N.M. in proposed jury instructions object to 890, 291, 265 93 L.Ed.2d U.S. 107 S.Ct. sentencing. majority penalty death “ of qualitative difference ‘[T]he cannot now opinion concludes that Clark requires corresponding- penalty the death because, by asking a witness complain degree scrutiny of the ly greater of term of incarceration about the minimum ” 688, Id. at sentencing determination.’ serve, opened the door to might he Mis- v. Caldwell (quoting аt 842 726 P.2d admittedly improper re- prosecutor’s 2633, 320, 329, 105 S.Ct. sissippi, 472 U.S. I the error al- marks. While (1985), Cali- 2639, quoting, 231 leged Cheadle in did not result in a miscar- Ramos, 992, 998-99, 103 v. 463 U.S. fornia on riage justice, majority’s reliance of 3451-52, (1983)); 3446, 77 L.Ed.2d 1171 S.Ct. begs question. If fundamen- that case Ohio, see, 586, e.g., Lockett v. 98 occurred, by it error definition was tal 2954, (1978); Woodson 57 L.Ed.2d 973 The same can be said of State waived. Carolina, 280, v. North 96 S.Ct. 697, Padilla, 722 P.2d 104 N.M. Gregg v. (1976); Geor- (Ct.App.), 104 N.M. 702 2909, 49 L.Ed.2d gia, 428 96 S.Ct. U.S. (when re P.2d 1309 defendant 721 Moreover, penalty death deter- 859 manslaughter, quested 'an instruction on special of impose requirements minations error, and he no fundamental there was claims, per- scrutiny eighth of amendment complain heard to would not be right among is the of haps chief which such an instruc- did warrant evidence may proffer any to factors defendant I concur in the Padil- Furthermore, tion). Ramos, 463 mitigate against death. See la dissent Judge of Minzner. 3452-53; 1000-1001, 103 S.Ct. at U.S. at majority appears equate funda- 2964; Lockett, at U.S. process of due error with a denial mental Woodson, at 2991. 428 U.S. at and rights, requires state action por- Fundamental error. A substantial rights that can be waived. which includes hearing tion of Clark’s concept of due I believe that While arguments on the devoted evidence implicated process often be when will pa- pardon, of commutation or possibility must fundamental error be doctrine of incarceration, legisla- role, costs of error I fundamental applied, understand impact the that could judicial actions tive doctrine, which enables an as a broader majori- imprisonment. The of life injus- correct manifest appellate court to inconsistent this was ty opinion concedes the claim of in cases where tice even leg- decision-making that the role with the existing rule. not lie within an error does jury. It is clear to set out for the islature ****** complete and had me majority in effect holds that defen- they choice confusion over the utter object of right to lack dant waived make, and I believe this constituted offering in- evidence substаntial miscarriage justice of manslaughter, voluntary struction Any miscarriage justice proceeding. right, no he waived that and because recently As reit- error. we fundamental I an- Escamilla, occurred. would fundamental error 107 N.M. erated in first, alyze differently; tin, issues we whether er- parte determine fundamental Ex Rutledge, 482 So.2d cf. then, not, may (Ala.1984). ror is involved we right determine whether It is therefore misleading and unfair to ought was waived. not limit our suggest that Clark “created” the error discretion to correct fundamental error suggests here. Such a statement that un- appropriate an case. der guise “reply kind” doc-

Id. at 722 P.2d at 703. prosecutor trine a may violate the defen- eighth dant’s rights amendment impu- I with question eligibility don’t believe nity. a holding incompatible Such parole a life from sentence raised a doctrine error fundamental and the subject factual issue that was proof by meaningful need for appellate testimony. review of expert means of consti- What death sentence law, tutes determinations. See question a life sentence is a Ed Oklahoma, dings question the answer to that is that life, (1982)(O’Con possibility sentence is for with the L.Ed.2d nor, J., (as parole thirty 31-21-10(A). concurring) years. humanly after much as possible, In penalty proceeding, a death death presentation sentence determinations jury incompetent testimony whim, passion, to the must not be based preju- of and on dice, mistake). speculative arguments on matters of statu- or

tory interpretation was fundamental error. mitigating noncapital factor of This Court so should hold. sentencing. Further, I believe the trial

Moreover, allegations the of error here court deny was without discretion to the point prose- systematic attempt by request to a jury the defendant’s the have in- jury only cutor to the noncapital prior convince the formed of sentence meaningful sentence was the sen- capital sentencing. its on the I deliberation tence, by speculative of testimony firmly means am eighth convinced that under arguments possible and about legislative jurisprudence amendment the defendant changes, apprised federal intervention the under was entitled to have the of decree, Lockett, inquiry Duran consent into the cost a capital this information. Under incarceration, sentencing jury the com- possibility must be allowed to consid- closing, er, factor, prosecutor mitigating mutation. the ar- as a circumstanc- gued that sentence pose prof- a life did not es of the offense that the defendant question whether Clark would released basis for a less be fers as a than prison, from but when he be re- would death. 438 U.S. at 98 S.Ct. at 2964. leased, that Clark’s release was “inev- majority opinion erroneously limits itable,” might and that his release occur mitigating ‍​​‌​​‌‌​​‌​​‌‌‌‌​​​​‌‌​​​​​‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌​‌​‍scope the relevant evidence to years. within ten own defendant’s conduct back- hangs ground sentencing life in the “the

When defendant’s and concludes that balance, prosecutorial overreaching prerogatives judge, possi- should of the trial or the sentence, simply by length not be excused defense counsel’s failure ble of a life have object. Although I eighth do not believe testi- no relevance under amendment stan- mony meaning sentencing so far.” they developed on the have dards as However, appropriate, statutes was if it to be N.M. at P.2d at acknowledged prosecutor pos- enti- the Court reasoned that the Ramos sibility may tled to cross-examine the defense the defendant returned to witness be reasonably ex- on society matters raised on direct focuses attention amination, dangerousness probable Jaramillo Fisher Controls defendant’s future “ Co., (Ct.App. 698 P.2d 887 and is therefore ‘relevant information 1985), prosecutor well individual whose fate this case went about the defendant ” beyond of direct into scope examination it must determine.’ 463 U.S. Texas, (quoting highly speculative matters which were both S.Ct. at 3454 Jurek highly prejudicial. Mar- U.S. 49 L.Ed. See State v. (1976)). length speculate noncаpi- of in- Whereas the on what the 2d 929 aggra- may be, might be relevant carceration tal sentence and on what the dangerous- vating of future executive, circumstance legislative judicial officers or sense, may rele- clearly in one it be ness might change cur- bureaucrats do to mitigation from the defendant’s vant meaning rent life sentence. Skipper perspective another. See faced with false issues that were Carolina, 1, 5, 106 S.Ct. South legislature permitted intended nor (1986) (evidence requirements eighth amend- danger pose a that a defendant would ment. put to death if incarcerated rather than length of is rele- Because incarceration mitigating). potentially must be considered vant, necessary it is to address whether Moreover, argu- I unpersuasive find remedies, postsentence gubernatorial such sentencing information that such ment pardons, or other sen- as commutations may it denied the because should be mechanisms, parole tence-reduction such as impermissible effect. prejudicial an have deductions, proper and meritorious are sub- Admittedly, interpret could capital sentencing I jects for deliberations. sentencing as a decision of the trial court possibility majority with the culpability. reflection of defendant’s pardon of a sentence of commutation However, progeny require Lockett and its not enter the calculus. should place that the defendant allowed to be- held not a Whereas Ramos it is violation cir- fore the eighth rights amendment to instruct limit the sen- cumstance. “States cannot authority relevant jury as to commutation cir- tencer’s consideration of impris- meaning material to the of “life it to decline cumstance could cause possibility parole,” without this onment McClesky v. impose penalty.” the [death] precluded requiring is not from a Court 279, —, Kemp, specu- strict standard of inadmissible more speculation is inconsistent lation. Such Therefore, if it is the defendant decides proper decision-making role. jury ap- in his interest to have the best extraordinary reme- postsentencing These it deliber- prised of this information before exercise of discretion dies are an executive upon capital sentencing, the trial ates injection of such considerations into it court is without discretion withhold sentencing under- process would jury. certainly It a matter the from the is legislative mine the intent that sentencing would have in mind court a reasoned choice make between like- jury. without benefit a imprisonment. life mini- necessarily must know when wise opinion notes, majority a substan- thirty-year period imprison- life As the mum interpret- begin. Here, had of other have is to the court tial number states ment that, imprisonment prohibit jury considera- mind before life their statutes ed serious begin, rape-murder statutory this child parole eligibility. Our tion of sen- enough scheme, however, the maximum to warrant lead should i.e., tences, twenty-four years to be served contrary court a The trial us to view. twenty-four year consecutively with the instruct the on the definition should plus year previously imposed, one language of imprisonment, tracking the life habit- use of a and as an firearm each 31-21-10(A). non- collateral Section When offender, subject deduc- to meritorious ual issue, if the are also at capital sentences parole. tions in- chooses to have defendant imposed for of the sentences to be formed for the Assuming good time maximum offenses, the trial then those collateral offenses, life sentence would noncapital pa- instruct the court also should age eighty- have assured incarceration merito- eligibility possibility and the argue release role prosecution could six. offenses. asking for these other only by rious deductions age forty-one early as as required point, on this it remand, specifical- reversal jury should be On clarifying miti- for a instruction to that, would be well for consideration ly instructed circumstances, unanimity given. on the ex- be gating is not mitigating circumstance

istence of Maryland, 486 required. Mills v. L.Ed.2d 384 distinguishable Mills While a verdict (Clark without went each specific finding on requiring form circumstance, Mills), and

Case Details

Case Name: State v. Clark

Court Name: New Mexico Supreme Court

Date Published: Mar 9, 1989

Citation: 772 P.2d 322

Docket Number: 17265

Court Abbreviation: N.M.