State v. Compton

726P.2d837 Mexico, New

STATE

Plaintiff-Appellee, COMPTON, Lee

Joel

Defendant-Appellant. 15218.

No. Mexico. of New

Supreme Court 17, 1986.

Feb. 5, March

Stay Granted 22, 1986.

Stay Oct. Dissolved

(Jg5 rendering impermissible the sentence un- der the doctrine fundamental error. imposition III. Whether the death sentence this case excessive disproportionate the circum- or under stances.

IV. Whether the New Mexico statu- tory imposing pen- for scheme death it a alty places is unconstitutional in that right to his remain defendant who waives footing a legal silent a better than defendant who exercises constitu- right. tional jury V. Whether the must find that peace his was defendant knew victim penalty be officer before death can imposed aggravating for circum- killing peace stance of officer. VI. Whether the New Mexico death in process due penalty statutes violate instructions demand a unan- penalty phase, in imous verdict where finding equal- in fact a is non-unanimous ly conclusive. court in

VII. the trial erred Whether in- refusing give Compton’s tendered Defender, Clow, Public Janet Chief mitigating circumstances. structions on Defender, Stafford, Appellate Santa David VIII. Whether the New Mexico Fe, defendant-appellant. for in penalty are unconstitutional statutes Gen., Bardacke, Tony Tupler, Atty. Paul mitigating factor: “de- the listed Gen., Fe, plaintiff-ap- Atty. Asst. Santa significant his- have fendant did not pellee. activity” imper- tory prior criminal missibly vague. OPINION Mexico death IX. the New Whether RIORDAN, Chief Justice. statutory scheme is unconstitu- penalty provides specific stan- in no tional Compton (Compton) convict- was Joel Lee for the delibera- dards evidence aggravated as- and capital ed of murder tions, persuasion the burden shifts to death for sault. He was sentenced fails and thereafter onto defendant eighteen imprisonment murder months and meaningful appellate review. provide ap- aggravated for the assault. peals. affirm. We court X. the trial erred Whether qualifi- “death conducting permitting and appeal are:

The issues on pool, strik- cation” of the erred I. the trial court Whether of an anti-death for cause testimony admitting into evidence juror. wife, de- Wrayan Humphries, imposition spite Compton’s of husband-wife XI. Whether claim as violative privilege. unconstitutional prohibition Eighth Amendment’s argument II. the state’s Whether punishment. against cruel unusual improper, during penalty phase Facts. Room 24. The man then turned and walked down the sidewalk and into the wife, Wrayan Hum- his darkness. phries (Wrayan), young daughter, and her left their home in Texas and travelled got Cline out of his investigate, vehicle to through coming several states before leaving his revolver in its holster. He Albuquerque mid-February, They 24, speaking checked rooms 25 and into his Lodge rented Room 24 at the Tewa on walkie-talkie subject walking that a Nearly Avenue. destitute and un- Central away. Suddenly rang a shot out. Cline work, Compton began to find able to drink something shouted collapsed. and then 24,1983 heavily. February On he had been From the emerged shadows a man with a drinking day. all rifle, stood over body Cline’s and then evening, Compton exchanged That words moved on. Gibson testified that this was Bar, patron El with another at Cid’s threat- the same man he had seen standing earlier ening to shoot the man. No further con- doorway of Room 24. This man was Compton tact ensued and returned to the by later identified witnesses Compton. as Lodge stopping liquor Tewa after at a Compton then ran with the rifle across there, store. Once he went to Room 25 and the street approached and the car of Carl began banging yelling on the door and Smith, and Sandra just up who had driven coming about the loud music from inside. nearby to a Compton pointed restaurant. complained He had earlier about the music through the rifle the car window at Mr. “pimps” Compton and the inside. forced Smith, begged who him not to shoot. As way began his into Room 25 and an alterca- police began other cars arriving at occupants. tion with occupants These scene, Compton promptly threw the rifle managed push Compton out of their onto the roof of the Smith’s car. He then subsequently room. He returned to Room lay prone, spread-eagled, parking in the lot. began punching with a rifle and out Compton apprehended was position in that fight several windows. The resumed and shortly by afterward other officers that spilled parking into the lot. A passing had arrived at the scene. couple struggle saw the Compton’s over police. rifle and called the A of It was later friend determined that Cline died Compton’s took the rifle away instantly single and the almost from a bullet wound fighting stopped. Compton through had been in- the heart.

jured in the altercation and his arm was bleeding badly. Compton retrieved the ri- Wrayan Humphries’ testimony. I. again fle challenged occupants and of 1978, 505(a) NMSA Evid. Rule Room Everyone Comp- 25. scattered when (Repl.Pamp.1983) defines a communication discharged ton a shot into the street. privately as confidential if it is made and if Compton Wrayan and then returned not intended for further disclosure. (Room 24) their room Compton sat at a 505(b) Evid.Rule further states: Wrayan

table. He asked everything how person was A replied police privilege any proceed- outside and she has a coming. were to refuse prevent to disclose and to disclosing another from a confidential (Cline) Officer Gerald Cline of the Albu- by person per- communication to that querque Department dispatched Police spouse they son’s while were husband Lodge to the Tewa after a call about a man and wife. with a rifle. With Cline was Alfred Gibson (Gibson), 505(c) participating police a citizen in the Rule privilege Evid. shows that the department’s “ride-along” program. may spouse by making Gib- be claimed son police pulled testified that car as the confidential communication or into parking Lodge, spouse lot of the Tewa he to whom the confidential communi- saw standing doorway a man in the cation was made. that, comparison, testimony evidence the amount challenged herein improper appear evidence will so min- between a conversation

concerned iscule that it could not have contributed shooting Wrayan moments before the conviction, (3) to the no substantial hearing, the trial court After a Cline. conflicting evidence to discredit privilege the husband-wife concluded testimony. State’s by Wrayan when she been waived had shortly made a sworn statement Moore, 94 N.M. 612 P.2d shooting. NMSA See after (1980) (citations omitted). (Repl.Pamp.1983). appeal, On Evid.R. 511 case, testimony In the instant there was argues the admission of (who through presented Mr. Gibson argues error. He Wrayan’s statement was Cline) that, patrol riding in the car with Wrayan Compton and not that since it is Lodge, their arrival at the Tewa he case, privilege in this NMSA claiming the Compton standing doorway saw 512(b) (Repl.Pamp.1983) Evid. Rule Further, Room there was no substan- Wrayan applies negate the claim conflicting evidence that have tial would privilege. That rule states: waived testimony discredited of Gibson. a statement or other dis Evidence of Therefore, although the admission of privileged matter not admis closure error, Wrayan’s testimony was it was privilege if against the holder sible harmless error and conviction is * * * made without the disclosure was point. properly affirmed under this opportunity privilege. to claim the II. Prosecutorial misconduct in sentenc- that as a holder of the Compton contends ing phase. Wrayan’s police disclosure to af

privilege, shooting made when ter the of Cline was appeal Compton claims on that he opportunity to claim the he did not have an during process denied due the sentenc was therefore, Wrayan’s state privilege, and prosecu ing phase of his trial because the against inadmissible him. ment should be arguments closing tor’s and rebuttal were Compton argues thus that the trial court objection no to improper. Compton made ruling Wrayan in that waived the erred arguments, though he did move for a the allowing her privilege by admission of on immediately thereafter the mistrial Compton agree that statement. We with Ordinarily, here. unless a grounds claimed admitting in this state allegedly the trial court erred made to an timely objection is However, the ad comment, ment. we conclude that be reviewed. improper it will not Wrayan’s of statement was harm mission P.2d Ruffino, 94 N.M. 612 v. only have had an (1980). point less error because could Compton concedes this 1311 verdict, light in insignificant effect on the sentencing capital in a contends but trial, of the other evidence that was introduced prosecutorial misconduct egregious showing Compton’s awareness that process requirement at trial of the due violates premises.1 fairness, police a officer was on the and so constitutes fundamental fundamental error. be considered For trial court error harmless, there must be: preferable have been Certainly it would entered

(1) support the to have Compton’s evidence to counsel substantial any alleged errors im- so that timely objections reference to the conviction without by the trial evidence, (2) corrected a could have been properly admitted such gauge court, position to in the best who is permissible of disproportionate volume therefore, Wrayan infra, between jury the communication should V addressed 1. Issue shooting Compton prior required Cline’s is unnec- to find that knew have been that his victim was a compassed peace imposition is also en- essary officer the of and irrelevant finding aggra- of harmless error. our under the death sentence handling it clear that of that issue makes Our Compton’s killing peace officer in vating of circumstance knowledge status as a of his victim’s discharge his duties. lawful of the statute and officer is irrelevant under the 688 Zant, ac Tucker v. impact (11th

their and to admonish the 724 F.2d 882 Cir. Nevertheless, 1984).3 cordingly. alleged since the Many of comments complained the complained during errors here occurred of here are similar to comments held to be sentencing sentencing determination or prosecutorial both Hance misconduct phase and, trial since “the and Tucker. We note that Hance qualitative difference death from all oth Kemp, overruled Brooks v. subsequently punishments requires correspondingly er (11th Cir.), petition cert. 762 F.2d 1383 greater degree scrutiny capital of the filed, (1985). 54 U.S.L.W. 3254 determination”, sentencing we will address attorney’s An personal opinions, improper argument. the issue of Caldwell evidence, not tied to the are irrelevant 320, 329, Mississippi, U.S. 105 sentencing jury’s task. Brooks v. 2633, 2639, (1985) L.Ed.2d Kemp, However, 762 F.2d 1408. at Ramos, (quoting California effect of insignificant these comments was 992, 998-999, when light viewed in of additional com (1983)). Thus, L.Ed.2d 1171 we turn now by prosecutor ments made which miti analysis prosecutor’s to an of the remarks gated possible impact adverse Compton’s sentencing hearing. at original In closing argu statements. closing argument,2 prosecutor ment, prosecutor here did not state or stated “I penalty feel the death is an imply that he had selected this case from appropriate Then, sentence this case.” among the mass of cases that could be rebuttal, prosecutor the other “I said: Instead, penalty cases. he stated my step want to out role as an advocate many why reasons he believed this case minute, you for a personally, and tell I appropriate referring penalty, for the death don’t believe in the death in all to the giv evidence introduced at trial and cases, so where I coming know am ing opinion. reasons for his All of these from.” reasons for seeking were Compton argues that these statements by exhaustively prosecutor laid out dur prosecution process the due violated closing argument. his It only af requirement of fundamental fairness ter all these had reasons been laid out encourage that such statements prosecutor before the made impermissibly rely prosecutor’s on the se the statement of which now com seeking lective penal decision in the death plains. The same is true about the com ty. Compton argues argument that such by prosecution ment during made the re improperly suggests prosecutor, that the instance, prosecution buttal. In each the agent as an having for the state and thus laid out the which request facts the an added authority” “mantle of has select for the death had been made. It ed this particularly deserving case as of the left to jury independently was to the decide penalty. argues death that such any whether validity there was to of argument infringes upon jury’s the discre these underlying factors. tion in making proper its decision for a Also, any impact penalty, life adverse support or death. the of his argument by prosecution comments by that the was pros such comments the alleviat throughout ecutor ed still improper are and cause further because fundamental both unfairness, closing arguments the Hance v. Compton relies on and rebuttal the Zant, denied, (11th Cir.), prosecution cert. perfectly 696 F.2d 940 made it clear that the jury. decision for the L.Ed.2d was that At the (1983), progeny. See, argument and e.g., beginning closing prosecu- its the allegedly improper 2. The prosecution remainder of the that com- various comments made during ments came rebuttal. during rebuttal caused fundamental unfairness sentencing phase of his trial. Compton principally 3. relies on both of these support remaining arguments cases in of his Thus, given stated, you foregoing arguments, I to will ask consider we tor “[b]ut for appropriate a death jury, making this case in that are satisfied that its took from penalty because defendant give Compton penalty, to decision the death right take. Jerry he had no to Cline what role only was under illusion that its no live, right to and Jerry He took Cline’s jury minimal. We determine that Jerry judge not have a Cline did responsibility clearly understood he live or die.” On rebut- whether should determining Compton’s only for fate rested tal, prosecutor “You did not stated: with them and no one else. trigger February on that killed pull the not, Cline, parents his did the alco- Officer prosecutor The recited scene did act. did The defendant hol not. picture. from “The Godfather” motion subject your deci- That makes him now portion prosecution’s This rebuttal sion, give him the you and if decide to was as follows: his penalty today, responsi- will be it This is a death case for two * * * very This bility and his fault. is a all, reasons. First of because of the decision, it personal in this kind of decision things you closing, I’ve talked about is a is so fundamental that matter [it] police because make officers such we do up you, life and death. It is to all and jobs, give terrible we want to them some going you to criticize what no one for protection they’ll keep mantle of com- so case, you doing are this either side.” somebody’s having ing, so that when added) (emphasis neighborhood dispute you next door can Further, also defense counsel made come, they call and will and unmistakably clear that the had sole protect they society feel will them when deciding Compton’s responsibility for fate. goes to come. The second reason some- Throughout closing argument, her defense thing my very day I first in law learned repeated placing counsel made remarks school, professor, very I had a and law (should responsibility thing day, first to us a lecture first imposed) upon the a death sentence be was, you The “have all of seen Godfa- I jury. Such remarks included: “[a]nd looked, all didn’t know what ther?” We up what it’s like to stand in front wondered about, said, “well, talking he do he side, people on other and to of twelve very the scene start remember argue being, human and I realize kill a the person where Godfather prosecutor, you’re buffer because ‘my and says comes to the Godfather you are the ones who will make that Godfather, daughter raped, been and has over, they And when this case is decision. her, do got the men off killed and home, go they can wash their can something?’ justice do something, won’t hands, themselves, T did they can tell thugs sent his out Godfather my job.’ But the made decision. * * * up guys raped guy’s, these beat life at This case is about and death Well, uh, pro- the daughter.” what law point. you this That’s the decision that was, gentle- and fessor told us “ladies The to are with. decision whether faced * * * men, any you?” And did I offend being. kill a human offended, said, nobody and he was every has each and New Mexico handed justice.” That that was “that’s because are you gun. loaded And there one of a me, justice, he said to and what and guns, ladies not blanks those us, he to all of all of us first what said they gentlemen, they are bullets. And real * * * students, you law was if do not year and will kill. Ladies are bullets that work, the that’s the kind of system make with gentlemen, you’re your the ones fin- applies. That’s the kind of justice that up here gers trigger, and I’ve stood system does takes over if the justice that best, gonna my I’ve now I’m and done and people, protect work to these life, not gonna Joel and I’m take justice over. the kind of that takes that’s added) you.” (emphasis turn it over to gentlemen, po- And ladies and either the clinging rock, tree on to a a little scrub going stop going tree, to lice are to the scene oak though even there’s no other them, protect they’re going if we don’t or dirt around it. The instinct that keeps shooting to start first. antelope And we don’t running away from the lion. happen, you’ve want that to and heard of It’s the instinct that all of us can under- stand, police shooting people under right bad circum- to survival. And ladies stances, gentlemen, and the reason Mr. Shane talked and society right has the to survive, you protecting police you to about right self-defense, to decision, police right protect don’t want to make that to Society itself. has the go right to to kill ques- out shoot first and ask its enemies to survive. they somebody tions later when see with Under Kemp, Brooks v. one of the gun. a You want them to behave as proper argument lines of during the sen did, get your Gerald Cline out without tencing phase involves the consideration of and, gun, you approach person so can accepted justifications for the use of and attack that peaceable situation a penalty. the death justifications These are do, manner. That’s what want to retribution and deterrence. Brooks v. happens and then the decision as to what Kemp, 762 F.2d at 1407. It was held in people, later will be made twelve not Brooks that: person one on the street in that circum- [J]ury appropriate- consideration of the reason, stance. So that’s the that’s the particular ness of retribution in the case reason that is an aggravating circum- proper is both Similarly, inevitable. stance, pen- and so serious for the death respect with specific deterrence, alty. jury may appropriately consider whether context, prosecution’s Taken refer- particular a likely defendant is so to be ence to “The simply Godfather” was made dangerous in the future unlikely and so example why particular as an this case to be incapacitation rehabilitated that penalty. merits the death It was general deterrence, made to warranted. Even show the need society protect principally its while legis- a concern for the police they keep doing lature, officers so that will fixing can be considered in pun- * * * job they society. do for The refer- ishment. Neither reason nor ence to “The apparently Godfather” was precedent suggests that we should raise attempt help made an under- a constitutional argu- barrier to such particular stand that the aggravating cir- ments. cumstance in case—killing peace this offi- (citations omitted). agree Id. We with cer in the discharge lawful of his duties—is phrase Brooks that ‘enemy of “[w]hile protect police officer and to insure harsh, society’ seriously we do not fault [is] that the officers fulfill their duties in application its to one whose crime is ‘so diligent peaceable manner. We de- grievous an humanity affront to termine that this reference to “The Godfa- only adequate response may be the ” ther”, context, when taken in im- not (citing of death.’ Gregg Id. at

proper. Georgia, (1976)). 49 L.Ed.2d 859 complained The next comment

3. by Compton prosecutor came when the alleges improper next “Society right stated: has the to kill its prosecutor comment when the stated: “La Again, enemies to survive.” this comment gentlemen you give dies and cannot is taken out of context. The comment was man the chance somebody to hurt else. made in following the context: Society right here, has the to end it and why, why penalty? you

So the death I stand between the defendant and socie right think it boils down the ty.” to to self-de- We determine that this comment was survival, right fense. The appropriate to in- an reference to the fact that stinct in keeps charged all of us that the little making the with the ulti-

gg} Thus, Ac- largely upon reasoning the based to fate. decision as mate Kemp, (overruling v. Kemp, 762 F.2d of Brooks v. Hance at 1412. Brooks v. cord Zant, Compton principal the case which as to the Compton’s next contention 5. ly allegations prosecutorial relies for his argu- prosecution the inappropriateness of misconduct) reading4 and our of the entire during regards the fact that rebuttal ments arguments during sentencing made the urged imposition of the prosecution the and, arguments in phase taking all such people both inside protect to context, determine that there was no we prison. These comments of the and outside depriving Comp prosecutorial misconduct were as follows: process right to fundamental ton of his due goes protection? If he to needs And who during sentencing phase of his fairness prison protec- in need people prison, the that have dealt with trial. Other cases coming tion, funny may sound and that by prosecutors similar comments made dur people up prosecutor, but those from a sentencing phase and that have murderers, peo- there are all there aren’t Hopkinson v. upheld such comments are: get petty crimes and ple who do little denied, State, cert. (Wyo.1981), 632 P.2d 79 up pen, they’re and there too. sent to the 922, 102 1280, L.Ed.2d 463 455 U.S. S.Ct. 71 protection from they need Joel And (1982) in (closing remarkably similar to that they right not to be Compton, have a State v. upheld proper); up the instant case as up, like he’s beaten killed or beaten McDonald, (Mo.1983), cert. chair, they 661 497 people jail, over a S.W.2d over your pro- denied, 1875, right, they 1009, need 105 S.Ct. 85 have 471 U.S. your protection, (1985) (need pro society need to tection. L.Ed.2d 168 prison, people support in this com- in and after itself need not have tect Travaglia, protection. And what v. munity your evidence); need Commonwealth 288, is that the you 474, 502-503, need to know this case 467 A.2d 302 502 Pa. * * * denied, (1983), may be out. But this cert. defendant 1256, 104 467 U.S. released, may he be back may 3547, (1984), state he be (prosecutor’s 82 L.Ed.2d 850 good chance of society. now, And there’s a statement, “Right the score is [de important is be- why And that’s two, that. society nothing. When will it fendant] cause, testimony, you’ve all the from going stop? Who is stop? When is it to * * all, dangerous. this man is heard it your duty,” stop? That's going to make it give him the death I’d ask argu merely flair” to be “oratorical held community, protect people in this Clanton penalty); ing in the death favor of where people in communities other Commonwealth, 41, 54, Va. 286 v. 223 may go, protect the defendant 172, (1982) com (prosecutor’s 179 S.E.2d protect penitentiary, people at ment, inmates not sentence the other “Do police. to death at the Virginia State Prison give him the Don’t hands of Earl Clanton. proper We determine that this was life,” somebody held else’s chance to take merely point argument. effect was to Its argument regard to defend valid to be dangerousness of out to the the futufe of vio to commit crimes propensity ant’s proper to particular defendant. It was Jones, People v. lence); Ill.2d 94 for its consid put the issue before 161, 903, 447 N.E.2d 172-173 Ill.Dec. Texas, 428 U.S. 262, See Jurek eration. denied, 920, 104 S.Ct. cert. (1982), 464 U.S. (1976); see 2950, 49 L.Ed.2d 929 96 S.Ct. (1983) (prosecutor’s 287, 78 L.Ed.2d 264 Ramos, 992, also, California guards in that comment, “How about 3453 n. 1002 n. institu institution, inmates in that and the Kemp, Brooks v. (1983); L.Ed.2d preserve tion, you can you so sure that are F.2d at 1406. review. transcript for our listening taped transcribed In addition to tapes closing arguments, we also had 692 committing again doing

him from crime mination we will retry not the case for deserves, anything may other than what he the what be a better result. State v. penalty?” proper argu- held to be Garcia. ment). Mitigating cooperation IV. factor III.Proportionality review. with authorities. Compton asserts that his sentence was 1978, Under NMSA Section 31- disproportionate

excessive or to the 20A-6(H) (Repl.Pamp.1981) jury may imposed disagree. in similar cases. We mitigating consider the circumstance that a ag cooperated defendant was instructed on the with authorities. The 1978, gravating Compton argues provi circumstance of NMSA that this statutory 31-20A-5(A) 1981). (Repl.Pamp Section sion is unconstitutional that it allows for unanimously imposition The determined that the the death based aggravating circumstance existed and that right exercise of the to remain silent. penalty. precise its existence warranted the death against This issue was resolved Garcia, 771, Guzman, State Compton In 99 N.M. 664 in State v. P.2d 100 N.M. denied, 969, 1112, cert. 756, denied, 1321, cert. U.S. 676 P.2d 2464, (1983) 1256, 3548, (1984). 77 L.Ed.2d 1341 this court set 104 S.Ct. 82 L.Ed.2d 851 guidelines proportionality forth re view. In the instant case we have com Knowledge peace V. that victim was a pared Compton’s sentence with the facts officer. and the sentence in the case of Compton argues aggravat

Montoya, 101 N.M. 424, 684 P.2d 510 killing peace circumstance of officer (1984).5 31-20A-5(A), as outlined in Section cannot case, Upon review of the above-cited we constitutionally support imposition Compton’s do not find that sentence was the death sentence unless the finds disproportionate. Given the facts that a defendant knew that his victim was case, distinguishable instant from peace disagree. officer. We Montoya Compton essentially in that “am- relating Under a similar federal statute bushed” Cline. walked from his (18 (1970)), to federal officers U.S.C. § position hiding, hotel room to a only proof of the intent to assault is re- itself, opportunity presented when the he quired, proof not of the intent to assault a In Montoya, through shot Cline heart. federal officer. The United States Su- however, Montoya the evidence was that preme upheld Court this statute and stated: initially did not intend to kill Officer Lar- Thus, Compton’s legitimate son. we determine that The situation is not one where disproportionate sentence is not solely to that im- conduct becomes unlawful because * * * posed appropriate identity review case. We of the individual also determine that sentence is affected. In a case of this kind the of- given not excessive the crime committed. fender takes his victim as he finds him. We further proportionality concept stress that the of criminal intent does not review in this principally require state is directed to so far as to extend that the actor particular only circumstances of the crime understand not the nature of his act specific committed and consequence character of the but also its for the choice of reviewing jury’s judicial [remedy]. defendant. deter- (1982); Clair, 13,912 urges compare also us to his case and State v. St. S.Ct. No. Garcia; Robinson, 25, However, (Decision 1982). with that in State v. State v. filed June under 674, 1341, denied, 99 N.M. 662 P.2d Garcia, cert. guidelines adopted in State v. nei- 161, (1983); U.S. 78 L.Ed.2d 147 appropriate propor- ther of these cases is Martinez, State v. 97 N.M. 641 P.2d 1087 tionality review. denied, (Ct.App.), cert. 98 N.M. 644 P.2d 1039

693 Feola, 671, firearm, 685, 1978, with a 420 U.S. the use of NMSA States United 1264, (1975). 1255, (Repl.Pamp.1981), Section the L.Ed.2d 31-18-16 Feola, that prove the Court determined state would have to that a defendant Under Congress's knew that he was legislative history indicated subjecting himself to a enacting the to be the in statute term mandatory jail intent if he uses a firearm. federal officers and federal protection of Thus, adopting Compton’s view of the provide forum in a federal functions and herein, aggravating circumstance this Court We alleged offenders. think it try which to inventing would be instances where intent legislature our had the obvious that necessarily proved to be would have adopted, aggra it as an same intent when legislature in- situations where the never circumstance, peace killing of a vating tended such intent to be an element of the discharge lawful of his officer Further, argument Compton’s crime. mis- duties. purpose aggravating construes the cir- view, reasoning such Under Aggravating cumstances. circumstances many other areas in the apply would channeling are to serve as a intended example, For crimes involv criminal law. narrowing upon bases which the weapons generally result deadly See, e.g., penalty predicated. death can be penalties involving higher than those not 862, 872, Stephens, Zant However, deadly weapons. we do not re (1983). 77 L.Ed.2d 235 prove a defendant quire the state to that The aggravation factors concern the cir- knew that the weapon he used “dead surrounding attending a cumstances 1978, through 30- ly”. NMSA 30-7-1 §§ are not elements of capital They murder. (Repl.Pamp.1984). any In case for con 7-4 murder, capital but are instead intended to statutes, viction these a defendant under explain kinds of our circumstances that argue the state must would be able to that legislature has determined warrant prove that he knew that weapon was capital punishment mur- most severe Also, provide “deadly”. all that statutes aggravating are der. The circumstances peace penalties against for crimes offi quasi-criminal not violations and of prove require that state that cers would legislature be- themselves. Where a defendant knows that the victim is a appropriate lieved intent was an crite- that 1978, NMSA 30-22-21 peace officer. §§ a sentence could be ria which death through (Repl.Pamp.1984). Fur 30-22-26 based, specific requirement included the ther, in state death cases the would given aggravating kill in of intent that a defendant knew required prove be 31-20A-5(B), (C), (D) See circumstance. § officer, peace a that his victim was inmate Thus, (E). we that the determine guard. sentencing pro or 30-20A-5. § aggravating on the properly instructed ceedings, a argued it could be that defend killing peace officer. circumstance given an ant cannot be enhanced sentence knowledge he unless had factors Constitutionality of death VI. he had when that enhanced sentence instructions. example, committed the crime. For under argues point Compton that Under (Repl. NMSA Section 31-18-16.1 instructions, NMSA two uniform be that Pamp.1981) argued it could a de (Repl.Pamp.1982) and 39.43 UJI Crim. 39.33 fendant must know that the victim over they process in that lead the violate due (60) age sixty years of before enhanced an im- improper deliberations into and. imposed. the habit sentence can be Under penalty. permissible imposition statute, NMSA ual criminal enhancement pertinent part: 39.33 reads UJI Crim. (Repl.Pamp.1981), Section 31-18-17 agree unanimously “If fail to prove have de the state would imposed, penalty penalty should be subjecting he knew fendant would be imposed by the be imprisonment he of life will if com himself to an enhanced sentence in pertinent reads court.” Crim. 39.43 Finally, charged when UJI mits another crime. finding, part: “In order to return a it is reasonable doubt as to the existence of juror agrees. each necessary aggravating circumstance, Your an then it was finding unanimous.” duty must be Under UJI their aggravating to find that jury is instructed that its Crim. 39.33 present. circumstance was not It further and, verdict for death must be unanimous jury informed the aggra- that to find the if a unanimous verdict for death cannot be vating circumstance their decision must be at, arrived then a life sentence will be lays unanimous. The instruction also out a However, imposed. UJI Crim. 39.43 di- procedure jurors to be used jury findings rects the that its must be they unanimously agree. event cannot UJI unanimous. contends that UJI given Crim. 39.33 was then jury, to the erroneously jury Crim. 39.43 leads the into informing they them if unanimously that believing they only that can return a unani- agreed upon aggravat- existence of an verdict, being that verdict a unani- mous ing they proceed circumstance then were to disagree. mous vote for death. We penalty question. to the The instruction further advised if jury that could not ignores portion remaining unanimously agree on the penalty death of 39.43. It reads: UJI Crim. imprisonment then imposed life would be findings represent Your must the con- by the court. judgment juror. sidered of each In order finding, necessary to return a it is that Considering all these instructions juror agrees. finding each Your must be together, Compton’sargument that the two unanimous. (UJI 39.43) instructions Crim. 39.33 and your duty It is to consult with one encourage jury impose to the death try another and agreement. to reach an (a penalty verdict) opposed unanimous as to However, you required give up are not (non-unanimous verdict) a life sentence your judgment. you individual Each of without merit. We determine that in yourself, must decide the case for but improp structions cannot be construed as you only impartial must do so after an erly encouraging jury single any or your consideration of the evidence with juror to abandon a life in decision favor of jurors. your fellow the course of purpose a death decision for the sole of deliberations, do not hesitate to reexam- simply maintaining unanimity. The in your change your opin- ine own view and merely encourage jurors structions if ion are convinced it is erroneous. try unanimously agree on the existence your But do not surrender honest convic- aggravating of an circumstance and the weight tion as to the or effect of evi- penalty. appropriate This is not unusual in solely opinion dence because of the of routinely cases. Jurors are your jurors, purpose fellow or attempt instructed to to obtain unanimous reaching finding. a guilt. verdicts on issues of See NMSA are judges judges You of the facts. — (Repl.Pamp. UJI Crim. 2.40 and 50.07 Your sole interest is to ascertain the 1982). impose All of these instructions truth from the evidence in the case. juror duty each a to consult in an agree This instruction makes clear that each effort to but not at the cost sur juror See, individual uphold rendering judgment. is to maintain and e.g., individual his or her own convictions 39.43. when deliberat UJI Crim. We find no coercion on finding. specifically It which upon any states would make it incumbent jurors juror the individual be judg should not to abandon his or her individual pressured changing opinion into their ment jurors sim and vote with their fellow sim ply jurors ply because their fellow unanimity. believe that the interest of There fore, instructions, finding certain should be made. Further these considered as a whole, NMSA (Repl.Pamp. jury impose UJI Crim. 39.32 do not coerce the 1982) given by possible the trial court sentence after a initial non- case. they It advised the if vote. had unanimous refusing qualification jury. to X. Death The trial court erred VII. give Compton’s tendered instruc- Compton contends that the trial mitigating tions on circumstances. conducting permitting court erred in jury pool qualification” “death point appeal on

As his seventh striking an anti-death for cause Compton argues the trial court erred juror. Compton pro contends that such specifically instruct the refusing jury pool, prejudiced cess rendered the non- his tendered instructions of various prone”, jury pool “conviction and denied statutory mitigating circumstances. We composed him of a cross-section disagree. However, community. this court has Under NMSA UJI Crim. 39.30(Repl. previously determined otherwise. See Pamp.1982), was instructed: 251, Trujillo, 99 N.M. 657 P.2d 107 State v. determining penalty to be im- Before (1982). any mitigat- posed, you must consider exist, ing circumstances find penalty as cruel and unusual XI. Death but not limited to the including, follow- punishment. * * * ing. Compton argues appeal discre- gave instruction broad This penalty is unconstitutional as viola mitigation any factor in of tion to consider prohibition Eighth Amendment tive of the statu- penalty, the death addition against punishment. unusual cruel and deter- tory mitigating circumstances. We However, is to the con New Mexico law ample this was an mine that instruction Garcia, cited trary. v. and cases See State acceptable specific for a and substitution therein. non-statutory mitigating cir- list of written cumstances. Conclusion. reasons, foregoing we determine For the Constitutionality mitigating of cir-

VIII. and the the convictions that significant of “no his- cumstance upon him imposed for the sentence of death activity”. tory prior criminal should be affirmed. murder of Officer Cline Compton argues that Section 31- IT IS SO ORDERED. thereby 20A-6(A) vague, impermissibly rendering portion of our death STOWERS, JJ., concur. FEDERICI disagree. statute unconstitutional. We WALTERS,J., specially concurs. Gilbert, 392, v. 100 N.M. 671 See State (1983), denied, 1073, P.2d 640 cert. 465 U.S. SOSA, specially concurs Senior Justice (1984). 104 S.Ct. 79 L.Ed.2d 753 and dissents.

WALTERS, (specially concur- Justice Constitutionality ring.) IX. of New Mexico regarding statute by the I concur in the result reached guidelines jury deliberations and disagree majority, with the discussion but persuasion. burden of in this under V. There was evidence Part directly facing the case

Compton contends that the New statutes, police car drove at the sentencing into capital felony Mexico area which 31-20A-6, got out of through do time Cline arrived Sections 31-20A-1 Officer evidence, That with provide guidance jury weigh police the marked car. not for the contrary, sufficiently evidence to the aggravating circumstances of Sec no knew he was defendant mitigating circum establishes that tion 31-20A-5 with the However, shooting police officer. ambushing and stances of Section 31-20A-6. knowledge in or exclusion previously determined other The inclusion this court has not, in would Garcia; complained-of instruction v. wise. See State v. Gil case, jury’s verdict. have altered the bert. Florida, 782, 798, 102 express my disagreement and 458 U.S. I wish however, (1982), my unconstitutionality, quoting sense of 73 L.Ed.2d 1140 approval Hart, of a statute or an instruction Punishment approval with with from H. penalty upon a imposes an enhanced Responsibility In En- (1968). act, not of the actor’s criminal because mund, punish the Court held that one solely culpability, enhanced but because an- culpability was not the same as whose victim, known or the status of the whether (as interpretation given by other’s view, my such unknown to the accused. majority to the statute and instruction instruction, dispense a statute and such an herein, i.e., unknowingly kills that one who notice, very basic issue of which with the culpabili- to the same officer is held simply face of fair- another fundamental severity punishment as one who ty and Baker, process. Tijerina due ness and is, so), additionally, “imper- knowingly does (1968). N.M. 438 P.2d 514 Eighth missible under the Amendment.” cogently Id. Justice Marshall made addressed an almost iden- Justice Stewart judicial transfor- impropriety attached to protest objecting tical to denial of certio- statutory Missouri, of the common law and mation Baker v. rari in necessary requirement of scienter as a ele- 1184-1188, 834-37, 834 at offense) any aggravated (of guilt ment of (1983). L.Ed.2d 1027 only recognition requirement of such if I, therefore, majority’s from dissent legislative body expressly it into the writes from I discussion under Part V and what statute, opinion the in his dissent to the inappropriate analogies consider to be v. United States by majority, relied on attempted there to be drawn. Some of Feola, 696-713, 95 at 420 U.S. at S.Ct. them relied on are as defective founda- 1269-78. of mens disregard underlying tion as is the reasoning of Regardless of the dubious portion rea which forms the basis of that Feola, disregard majority’s and the of the majority’s opinion here. of the 686, Supreme caveat at 420 U.S. 95 Court’s 1264-65, this is “the ultimate S.Ct. Court Justice, SOSA, specially concur- Senior * * * arbiter of the law of New Mexico. dissenting. ring and such, [and, give the as not bound to is] affirmance of the con- I concur with the meaning process clause of same to the [due in this case for the reasons stated victions as the Unit- New Mexico Constitution the] respectfully I dis- majority opinion. Supreme places upon the ed States Court imposition of the sent on the issue of the Constitution, in constru- United States even Capi- I penalty. would hold wording iden- ing provisions having that is Act, 1978, Sentencing Felony NMSA tal tical, so,” substantially long so as we do or through 31-20A-1 31-20A-6 Sections guaranteed under not narrow the liberties (Repl.Pamp.1981) the Fourteenth violates ex. rel. Ser- State constitution. the federal Eighth to the U.S. Con- Amendments 351, Hodges, v. P.2d 787 na 89 N.M. 552 II, 13 and 18 stitution and Article Sections (1976). process is For us to hold that due Initially, fo the New Mexico Constitution. by either the statute or the not served Jury Instructions do the relevant Uniform instruction, written, possibly as could not objective clear and standards provide not narrow the Feola holding. To the con- sentencing decision. jury’s guide properly our con- trary, we would exercise may crime defendant and the While the duty only fulfill the re- stitutional not mitigation, and not in only bé considered quirements of notice to the accused not instructed to aggravation, was a officer and victim the fact that This underscores this effect. ques- accused’s chance to be heard on that provided guidance effective no tion, “causing also to assure that but [the aggravating in its determination whether intentionally must specific] [charged] harm mitigating circum- outweigh circumstances causing punished severely be more than unintentionally.” Enmund stances. the same harm

697 not.” Furman v. Geor it is In the facts this case reveal cases which particular, 238, 2726, 313, 2764, gia, by 408 U.S. 92 inadequacy proportionality review S.Ct. Garcia, (1972). majority opin 346 33 L.Ed.2d The as set forth in Court denied, meaningful fails to establish such cert. 771, 969, ion 644 P.2d 99 N.M. 1112, 2464, basis. 462 103 S.Ct. 77 L.Ed.2d U.S. (1983). Only 1341 one case exists which least, very prosecu At the of the because guidelines comparison estab meets the misconduct, I remand to torial would Montoya, State v. In 101 Garcia.

lished in sentencing proceeding for a new trial court (1984), 424, P.2d 510 a defendant N.M. 684 conviction, capital pursuant on the murder felony drug prior with convictions received 1978, (Repl. to NMSA Section 31-20A-4 killing undercover a life sentence an Pamp.1981). I believe that State’s ar during policeman trying to him while rob guments penalty phase at the were so im major drug Compton, transaction. com proper as to fundamental error constitute prior parison, felony had no convictions. process thus denied defendant due psycholo expert He described an was Zant, Hance F.2d See law. 696 940 gist “lightweight” among prison as a (11th Cir.1983), citing Donnelly v. De- personality population who suffers from a foro, 416 Christo U.S. 40 short, problem. alcohol disorder and an Diaz, (1974); see also State v. L.Ed.2d 431 cry “enemy from of socie he was a far (Ct. 210, 212, P.2d 100 N.M. prosecution him out to ty” which the made prosecution, in a App.1983). criminal majority’s does not cursory be. The review trial, function —not is entrusted with a dual begin even to assess character also, more im just to seek convictions but defendant. guarantee justice is done. portantly, to States, Berger v. United victim, Although Compton’s Officer Ger- (1935); see 629, 633, 79 L.Ed. Cline, extremely popular an ald Justice, also ABA for Criminal Standards sympathetic Albuquerque individual 3-1.1(b)(c); (1982) ABA Ed. Code of 2nd ignorant § of this community, Responsibility, 7-3. This EC Professional is little shooting. at the time of There greater a man’s life is at duty is even when else the details this crime which about stake. shocking reprehen- make it more or would fact, Montoya

sible than case. infirmities al- the constitutional Given erratic, Compton’s conduct so because present the New Mexico death ready had capacity his been diminished mental instructions, statutes and penalty alcohol, a that he would seem to merit unduly influ- might well have been death even than one who sentence less prosecutor’s improper re- by the enced peace officer under other circum- killed a things marks, it heard were the last which stances. required if retiring. Reversal before possibility a exists reasonable there imposing I no rational for can see basis Chap- the outcome. affected the errors kills a one man who 18, 87 S.Ct. California, man v. a man received police officer while another (1967). 17 L.Ed.2d a is, It life for the same offense. sentence equally priori, arbitrary capricious jury, appealing to the emotions By different- culpable to be treated offenders prosecutors strayed from their ethical statutory duties; is not is mandat- ly, especially when difference this Court “imposed years, one one of but the absolute reverse relative ed to prejudice or passion, influence life and death. between under arbitrary NMSA any other factor.” Eighth Amendment very essence 31-20A-4(C)(3) (Repl.Pamp.1981). § sentencing capital that a jurisprudence is Jury Instruc- meaningful Finally, both Uniform basis scheme must establish “a allow for sentencing statute in which tions distinguishing the few cases culpable de- equally many unequal treatment of imposed from penalty] [the reasons, I fendants. For these which dis- my specially greater detail in con-

cuss Garcia,

curring opinion in I would imposition

remand this cause for imprisonment. of life

sentence

726 P.2d 852 FRANCIS, Jr.,

David W.

Plaintiff-Appellant, HOSPITAL, et GENERAL

MEMORIAL

al., Defendants-Appellees.

No. 15997.

Supreme Court of New Mexico. 16, 1986.

Oct.

Rehearing Denied Nov. Cruces, Avallone,

Anthony F. Las plaintiff-appellant. Chavez,

Campbell, Reeves & B. James Burnham, Cruces, Reeves, Kelly H. Las defendants-appellees.

OPINION SOSA, Justice. Senior Plaintiff, Francis, (Francis), David W. Jr. defendants, brought against his this suit employer, claiming violation of his civil wrongful of contract and rights, breach discharge. granted trial defend- court

Case Details

Case Name: State v. Compton

Court Name: New Mexico Supreme Court

Date Published: Oct 22, 1986

Citation: 726 P.2d 837

Docket Number: 15218

Court Abbreviation: N.M.