State v. Garcia, 664 P.2d 969

State v. Garcia

664 P.2d 969

N.M.

1983

Check Treatment

*1 664 P.2d Mexico,

STATE of New

Plaintiff-Appellee, Reynaldo GARCIA,

Richard

Defendant-Appellant.

No. 14029.

Supreme Court of New Mexico.

Jan. 1983.

Certiorari Denied June

See 103 S.Ct. 2464. *2 Defender, Dickman, Appellate

Michael Defender, Corr, Appellate Asst. San- Lynne Fe, defendant-appellant. for ta Gen., Anthony Tu- Atty. Bingaman, Jeff Fe, Gen., plain- for Atty. Santa pler, Asst. tiff-appellee. the northside of cellblock three

OPINION to take Trujillo some books to inmate Jesse (Trujil- RIORDAN, Justice. lo)2. grill opened northside was (Defendant) Reynaldo Richard Garcia following Defendant. The events lasted was convicted of two murders in the first only a few Defendant minutes. walked or degree which he received a sentence of Trujillo ran into the northside tier. imprisonment life and a sentence of death. his cell he was returning outside because *3 appeals. Defendant We affirm. Bobby Garcia, the from showers. a north- appeal The issues on are: three, porter side in cellblock was out on tier, main talking the northside to another Whether I. Corrections Officer Louis yelling, inmate. Jewett was heard “You properly Jewett’s statement was introduced that.” A guys stop brief commotion ensued into evidence as a dying declaration. among Trujillo, Defendant and Bobby Gar- Whether II. references to the “Los Car- Jewett then ran towards the cia. commo- by during nales” elicited the testimo- running was next seen Bobby tion. Garcia ny emphasized and the by during towards the officers’ station. Bobby Gar- closing arguments deprived Defendant of a cia, bleeding, through open ran the grill fair trial. by He guard into station. was followed Capital III. Whether New Mexico’s Fel- Defendant, Trujillo and Jewett. Trujillo Act, ony Sentencing Sections 31-20A-1 and Defendant were armed with “shanks”.3 31-20A-6, through (Repl. N.M.S.A.1978 Bobby Garcia ran to the southwest corner Pamp.1981), is unconstitutional because it picked up plastic station and trash punishment. sanctions cruel and try Trujillo unusual can to off fend and Defend- ant, stabbing who were both at Bobby Gar- IV. Whether the jury instructions used Trujillo Jewett jumped cia. on from behind sentencing were and inconsistent con- “bearhu'g” and fastened a on him. At that fusing, thereby providing inadequate stan- Defendant turned his point, attention to dards for the jury to decide between the holding Jewett and while Jewett was toon death penalty imprisonment. and life Trujillo, Defendant stabbed Jewett in his V. Whether sentence Defendant’s or lower Momentarily, side back. every- death is disproportionate excessive and/or thing Then, came to a standstill. Bobby under ran Garcia towards basement stairs. killing Defendant was convicted Cor- struggle Trujil- Jewett continued to as both (Jewett) rections Officer Louis Jewett lo Defendant stabbed at him. Two Bobby Carabajal inmate “Barbershop” Gar- yelled join at officers Jewett them be- 26, 1981, (Bobby Garcia). February cia On hind the northside but grill, Jewett col- in the approximately eight lapsed. o’clock eve- grill southside was then Defendant, ning, porter opened a southside cell- and both and Trujillo Defendant if go block asked Jewett he could entered with blood on their hands three1, maximum-security porters relatively high degree 1.Cellblock three is the area have a of free- Penitentiary. they of the Mexico State Cell- dom on the tiers assist because with the arranged along three meals, block contains cells three cleaning, of linen distribution and other basement, composed tiers which are duties. floor main and the floor. The second tiers of trial, separate the cellblock Trujillo, are divided into northside and a Jesse in a was also 2. sides, southside. Between two these Bobby tried and the murders convicted for cellblock, middle officers’ is an station. Carabajal Louis Jewett. He Garcia Officer grill separates A locked officers’ station imprisonment. of life received two sentences northside, from the another from the southside. His conviction was affirmed the New Mexi grills gates These for each cell are Trujillo, co State v. Court. separately cage controlled within locked 657 P.2d 107 which is located inside the officers’ station. exercise, Except daily showers most prison, “Shank” is a term for a homemade inmates cellblock three are locked knife. their within individual cells. inmate admissible, when dying held. When other officers that a declaration they shanks arrived, approached grill particular Defendant at the circumstances of a looking Baca4, “Baca, we Captain case, stated to Joe showing if there is a the state- got he get didn’t mean to the officer but “impend- made under a sense of ment was way.” ing death”. Jewett were taken Bobby Garcia and case, present In the Officer Ross tes hospital. to the Bob- Penitentiary from the interview, tified that at the time of the thereafter from mul- shortly Garcia died pale During Jewett looked and thin. to his chest and back. tiple stab wounds interview, asked, they Jewett was “Did dis one month later approximately Jewett died improvement?”, cuss your chances of injuries sustained. from the he answered, “Oh, yes, which he nil.” Jewett asked, Jewett, again you “Mr. under I. JEWETT’S STATEMENT OFFICER are?”, your stand what chances of recovery Jewett was taken to stabbing, After the answered, and Jewett “Nil.” *4 Fe, Hospital Vincent Santa Saint surrounding taking the circumstances the and was surgery Mexico. He underwent language of Jewett’s statement and March taken to the intensive care unit. On itself, are sufficient to show statement 6, 1981, regular to a Jewett was moved that Jewett believed his death was immi ward because his condition started to show nent. stability. The signs improvement admissibility of such evidence for Defendant and the State were attorneys of the trial within sound discretion deposition Jewett’s on scheduled to take court, ruling upheld and its will be unless deposition 1981. March showing there is a of an abuse that was cancelled because Jewett’s condition Smith, discretion. State 2, 1981, upon learning April worsened. On P.2d 664 We find that there was no rapidly that Jewett’s health was deteriorat- abuse of the trial court’s discretion in ad- ing, Attorney an Assistant District and Of- mitting Jewett’s statement. Police, ficer Ross of the New Mexico State hospital went to the and obtained a state- II. LOS CARNALES April on ment from Jewett. Jewett died 1981. trial, At called to the stand (Maci- Danny cellblock three inmate Macias statement was la- tape Jewett’s recorded as). testimony, Before the start of Macias’s statement, ter transcribed. In his Jewett Defendant made a motion in limine5 to trying up stated that he was to break a any mention of “Los prohibit by Camales” Defendant, fight among Trujillo Bobby during Macias the trial. The trial court Trujil- He. Defendant and Garcia. saw both denied the motion and allowed the evidence stabbing were at lo with shanks. Both purpose showing During for the motive. Jewett stated that while he Bobby Garcia. objected testimony, Macias’ Defendant to Defendant up fight, was to break trying testimony concerning all “Los Car- him in back with a shank. stabbed nales”, asserting testimony that such was argument, attorneys agreed At both oral prejudicial. irrelevant and case of recently that decided Quintana, (1982), Macias testified that Defendant had come 644 P.2d 581 evening February by early his cell in the admissibility controls this issue of the Quintana, 26, 1981, that he briefly declaration. we held told Macias dying Mayfield leged against Captain Joe is a correctional officer at threats Lieutenant Baca Penitentiary. charges against the New Mexico State He has Defendant for the mention Penitentiary Danny Moraga. been a correctional officer The trial death of inmate years. twenty-one (21) points. on these court also denied the motion ruling court’s on these two matters The trial also asked the trial 5. This motion in limine being appeal. are not contested on preclude al- court to mention of Defendant’s (Defendant) Bobby to kill going was Garcia. in “Los by tattoo, Carnales” is indicated by Defendant then about ten minutes came which he showed the court. again going later and stated he was to In closing arguments, the State made ref- time, Bobby kill Garcia. At Macias erence to “Los Carnales” stating that answered, why, asked to which Defendant member, Defendant was the reason talking [Bobby

“he to Gar- was [Defendant] Defendant wanted to kill Bobby Garcia was * * * going that he was cia] [Defendant] Bobby because Garcia had insulted “Los kill if Lieutenant Mayfield6 Lieutenant Carnales”, the gang was organized ** *. Mayfield against testified He [him] take Penitentiary. over the [Bobby saying embarrassed me Garcia] On appeal, Defendant claims that the tes- that I do I am going anything. wasn’t timony concerning “Los Carnales” was ir- show going to him that ‘Los Carnales’ are prejudicial relevant and so that he de- was stay, place.” here to we’re to run this going prived of a fair trial'. “Los Macias testified that Carnales” he, gang Penitentiary inside 401, N.M.S.A.1978, N.M.R.Evid. states: Defendant, Trujillo three others were' “Relevant evidence” means evidence members. Macias further stated having any tendency make the exist- Peniten- gang’s purpose was to control the ence fact that consequence is of tiary by controlling inmates the determination of the action more within the drug Penitentiary. trade probable probable less than it would Mascarenas, alleged an member of Sam without the evidence. “Los inmate in eellblock Carnales” and an Defendant claims that the evidence *5 three, as a witness. When testified defense concerning “Los was Carnales” irrelevant. Carnales”, asked about “Los he testified The trial court allowed evidence he that it was low-rider’s club that was show motive. There is evidence to support trying to start in eellblock three theory that the stabbing reason population”. However, Peni- “guys Bobby occurred was because Garcia in had tentiary approve proposed would not club, sulted Defendant’s “Los Carnales”. club. the evidence was relevant Defendant also testified about this issue properly could be admitted under Rule when he took the stand. He testified that 404(b), N.M.S.A.1978, to show motive. Carnales”, he was a of “Los member 404(b) N.M.R.Evid. states: 1977, Albuquerque low-rider car club crimes, of Evidence other or wrongs he and that tried to start a low-rider car * * * * * * may acts be admissible for Penitentiary “general club in the for the * * * motive, proof of in- opportunity, population”. He stated that his “Los Car- tent, preparation, plan, knowledge, iden- tattoo, membership nales” which indicates tity or of absence mistake or accident. club, on alleged in the was tattooed him [Emphasis added.] before his fur- incarceration. Defendant acting ther testified that he was in self-de- 404(b) admissibility Rule allows the of mo stabbing Bobby fense in the Garcia be- subject tive re testimony balancing “[Bobby cause was after him” for 403, Garcia] quirement N.M.R.Evid. N.M.S.A. porter not doing Bobby some of Garcia’s Lovato, 712, 1978. State v. 91 N.M. 580 duties. denied, (Ct.App.), P.2d 138 cert. 91 N.M. P.2d Rule 403 states: rebuttal, eellblock

On called relevant, Although may ex- (Sena). three Nick testi- evidence inmate Sena Sena probative fied he Car- cluded if its value is substan- was a member of “Los tially outweighed by danger not a nales” and that “Los Carnales” was of unfair membership prejudice, He car club. also testified that confusion of the issues or mis- Reynaldo passage acquitted was for referred in this The trial Garcia tried and Danny Moraga. killing Danny Moraga. Richard the death of inmate unrelated crime. referred to an because it jury, or considerations leading the with the trial agreed court appellate or needless The of time delay, waste undue drug that because the evidence. of cumulative court’s determination presentation intertwined with the was so transaction [Emphasis added.] discussion, could the evidence money order is re balancing approach This reasonably excised. have been not determining the of the trial court quired v. Lo evidence. State admissibility of the testimony allowed the The trial court evi competent vato, fact that supra. The motive. “Los to show concerning Carnales” is a defendant prejudice may tend dence is concerning “Los Carnales” The evidence exclusion itself for in and of grounds motive of possible with a so intertwined Hogervorst, v. evidence. State the trial court Garcia’s death Bobby de (Ct.App.), cert. 580, 566 P.2d 828 N.M. it. The trial court could not have excised (1977). The nied, 567 P.2d 90 N.M. evi to admit or exclude has the discretion pro whether the court must determine trial P.2d Day, dence. outweighed of the evidence bative value denied, N.M. cert. (Ct.App.), this, doing In Id. effect. prejudicial its will not set aside the P.2d 297 We sensitive to must be the trial court there was a of the trial court unless decision inherent always potential prejudice Id. We find clear of that discretion. abuse wrong prior a defendant’s in evidence of its discre that the trial court did not abuse Lucero, 601 F.2d acts. United testimony. allowing tion in trial court has a Cir.1979). The (10th uncharged acts if excise evidence duty to DEATH PENALTY III. the rele destroying without done it can be penal- that the death Defendant contends which addresses the evidence vancy of punish- constitutes cruel and unusual ty issues. Id. charges, defenses and New ment under the United States’ intertwined, the trial is so the evidence if Const, Mexico’s Constitutions. Id. may allow evidence. court XIV; Const., Art. amends. VIII and Lucero, charged defendant was II, 13.7 § forged securities in interstate transporting decision of Furman In the landmark The defendant had come into commerce. *6 92 33 Georgia, 408 S.Ct. U.S. 900 mon possession approximately blank (1972), the Su- 346 United States L.Ed.2d that had been stolen from a bank. ey orders penalty. death discussed the preme Court quantity Defendant transferred a of the was whether the the Court The issue before drug orders to a Mexican dealer in money the cases8 before the penalty death in part The defendant’s exchange drugs. Court, pun- and unusual constituted cruel ners in the transaction had concealed thir Eighth and ishment in violation forged and money teen orders that were held opinion The Fourteenth Amendments. passed partners. The de directly penalty out of the death carrying that these thir charges fendant’s resulted from cruel cases did constitute particular in these trial, At evidence money teen orders. Justice Each punishment. unusual and drug was allowed. the Mexican transaction of the Jus- Four separate opinion. wrote a tape defendant claimed that the appeal, On is not capital punishment tices held that evidence at trial concern recorded admitted Justices, se; per three unconstitutional drug prejudicial transaction was ing 2726, 238, California, 660, Georgia, 92 33 L.Ed.2d 408 U.S. S.Ct. 370 U.S. 82 S.Ct. 7. Robinson v. 1) 1417, (1962), Eighth (1972), Petitioner was convicted 758 held that the were 8 L.Ed.2d 346 death, 2) Georgia rape States and sentenced Amendment to the United Constitution in Georgia through applicable to the states the Four- of murder was was convicted Petitioner death, 3) Amendment to the United States Consti- Petitioner was teenth and sentenced to rape tution. and sentenced in Texas convicted death. penalty cases combined death 8. The Supreme in Furman v. Court States United particular Supp.1982); state Texas that Stat.Ann. 37.071 agreeing art. while 1981).9 applied, (Vernon invalid as Furman were These states’ statutes have statutes capital of whether question withstood open left constitutional scrutiny by the and the other imposed; may be punishment United States Court. Proffitt v. penalty felt Florida, 242, Justices 2960, two death. 428 U.S. 96 S.Ct. Amendment. Eighth violated the L.Ed.2d 913 Gregg Georgia, v. su- pra; Texas, 262, Jurek v. 428 U.S. 96 S.Ct. 153, 96 428 U.S. Gregg Georgia, v. 2950, 49 L.Ed.2d 929 These states’ 2909, (1976), the 49 L.Ed.2d 859 S.Ct. generally provide for, statutes as ours does: penalty question the death again addressed 1)a hearing bifurcated wherein the of death punishment and held that “the death separately, considered violate the Constitu invariably does after a guilty verdict has been rendered 2923. That 169, Id. at 96 S.Ct. tion.” capital in a felony case 31-20A- [Section rei. Mexico ex of New year same 1); 787, 351, P.2d Hodges, Serna 2) a consideration of aggravating grounds, overruled on different mitigating v. Ron concerning circumstances (1976) and State 553 P.2d (1976), and, we murder 31-20A-2]; P.2d 688 deau, 89 N.Mt [Section is not cruel held that the death 3) an automatic complete appellate prohi within the per se punishment unusual review of any involving case Fourteenth Eighth bition penalty [Section 31-20A-4]. Constitution of United States Amendments Therefore, we uphold the constitutionality the New Mexico II, 13 of Article Section capital of New Mexico’s current punish- Ron Constitution. ment statutes. New Mexico’s deau, we held that supra, IV. JURY INSTRUCTIONS was unconstitu statute capital punishment a man imposed because the statute tional The N.M.U.J.I.Crim. 39.31 datory death sentence. United 39.33, (Repl.Pamp.1982). N.M.S.A.1978 v. North Caroli Supreme Court in Woodson 39.31, U.J.I.Crim. states: na, 49 L.Ed.2d U.S. provides you The law cannot sen- Louisiana, 428 (1976) and Roberts you tence the defendant to death unless 49 L.Ed.2d 96 S.Ct. beyond are satisfied a reasonable doubt sentences (1976), mandatory held that the murder was committed under nor the judge which leave neither one or more of circum- sentence, vio impose a lesser discretion always The burden is charged. stances prohibition Eighth Amendment lated prove beyond a reasonable on the state punishment. unusual against cruel and the murder was committed doubt hold that we continue under one or more of the itself, does not in and of penalty, charged and that the miti- circumstances Mexico’s or New violate the United States’ *7 outweigh do not the gating circumstances punish and unusual Constitutions as cruel circumstances. aggravating ment. prove that the state required It is not The test possible all doubt. constitutionality beyond this at the We next look A reasonable reasonable doubt. is one of capital punish of New Mexico’s current and upon reason is a doubt based through 31- doubt 31-20A-1 ment statutes. §§ that kind of doubt sense —a after common were modeled 20A-6. These statutes hesitate person a reasonable Florida, and would make Georgia similar statutes in important and more graver to act in the 921.141 Ga.Code Texas. Fla.Stat. § life. (Cum. affairs of and 27-2537 Ann. 27-2534.1 § § Silver, Constitutionality Mexico of the New 9. Statute, Capital Punishment 11 N.M.L.Rev. 39.33,

The of circumstances and consider the pertinent part U.J.I.Crim. defendant and the charged making crime a determi- states: nation of a sentence of either death or life unanimously agreed have on a you If imprisonment. Defendant claims that the circum- finding aggravating that [the jury are in instructions conflict with each or more of the charged stance was] [one other 39.31 requires because U.J.I.Crim. charged circumstances aggravating were] proof aggravating circumstance(s) the that present, must you [Footnote omitted.] are not the outweighed by mitigating cir- penalty imposed the to be then consider 39.33 requires cumstances and UJ.I.Crim. a determining penalty this case. In the weighing aggravating the circum- you must consider all imposed be stance^) mitigating and circumstances pro- admitted during the evidence against jury each other. The during evidence was instruct- ceeding and the admitted sentencing stage ed at and the found the trial trial in which defendant was consider instructions as a whole jury You con- the of murder. must then guilty of one mitigating pick parts there are and out instruction sider whether 39.- disregard others. N.M.U.J.I.Crim. (Repl.Pamp.1982). These N.M.S.A.1978 cir- mitigating If find there are you n instructions require the clearly jury, cumstances, you weigh must then the weighing circumstance(s) aggravating the against [ag- the mitigating circumstances circumstances, against mitigating the gravating ag- or more circumstance] [one circumstance(s) aggravating find the that omit- gravating circumstances] [Footnote outweight mitigating the circumstances be- After have found this case. you ted.] fore the death can be imposed. weighing aggravating circumstances circumstances, mitigating weigh- argues Defendant also that U.J.I. other, each con- ing against them provide Crim. 39.33 does not “clear and both the defendant sidering objective are “rationally standards” which crime, you shall determine whether Godfrey Georgia, reviewable”. be defendant should sentenced to death 420, 428, imprisonment. or life (1980), L.Ed.2d the United States Su agree If fail to you unanimously preme stated that a sentencer’s dis Court “ imposed, should cretion must be channeled ‘clear and imprisonment life will be im- penalty of provide objective ‘specific standards’ that posed by the court. and that ra guidance’ detailed ‘make 39.31, tionally process imposing reviewable Under U.J.I.Crim. ” However, first, a sentence death.’ this case required to make two determinations: Georgia’s aggravated dealt then cir proved beyond whether has person was com in which a con reasonable doubt that murder cumstance statute circum victed murder could have been sentenced mitted under second, stance^) charged, beyond as whether to death if it was found a reasona outrageous not out ble doubt the offense “was mitigating circumstances do vile, weigh circumstance(s). ly or horrible or inhuman in wantonly made, mind, torture, it depravity are Once these two determinations involved battery U.J.I. or an the victim.” aggravated is further instructed under 39.33, ag Id. at at 1762. The they weigh Crim. must 100 S.Ct. circumstance(s) vague description too mitigating stated that this was gravating (Repl.Pamp.1981). aggravated be con- At time circumstance to N.M.S.A.1978 *8 death, Reynaldo Bobby Carabajal 31- in case is Garcia’s Section sidered Richard Garcia’s penal (Repl.Pamp.1981), 20A-5(D), in a institution N.M.S.A.1978 that “while incarcerated defendant, 31-20A-5(D) Mexico, Section with the intent had not been enacted. kill, murdering prisoner employee correc- of a as an to an of the includes the murdered department aggravated rehabilitation circumstance. tions and criminal 31-20A-5(E), department].” [correction §

779 aggravated for an because corpus circumstance proceeding, has held that a defend- could any person fairly characterize almost object jury ant’s failure instructions as every “outrageously wantonly murder or precludes challenge a to the constitutionali- vile, horrible inhuman.” The Court ty of those instructions in a federal habeas permit stated that it will not a subsection of Engle proceeding. Isaac, 107, 456 U.S. aggravated an circumstance to sim- statute 1558, 71 (1982). S.Ct. L.Ed.2d 783 a ply become “catchall” for which do cases Defendant, however, claims that these not fit within of the other subsections. can jury instructions be attacked for the this is not with New the case appeal first time on because of fundamental aggravated Mexico’s statute. circumstance pursuant 308(b), error to N.M.R.Crim.App. 31-20A-5 specifically ag- Section lists the 31-20A-4(B). N.M.S.A.1978 Section gravated circumstances that allow the New Rules of Mexico’s Evidence do penalty. death provide a different standard for admission We can find no United States Su or of evidence review of simply error be- case preme mitigat Court states that punishment cause possible is death. ing circumstances specified must be a Therefore, objec- we continue to hold that objective “clear and standard”. On the tions to instructions jury cannot be raised the United Court contrary, Supreme time on appeal. the first has held that in a sentencing proceeding, a judge or must V.

jury take into account the PROPORTIONALITY REVIEW jections jury instructions instructions. appeal. We have review. We find no fault raises this defendant raised for at trial. State subjective standard must be used for this P.2d 1153 Individual characteristics of the L.Ed.2d circumstances Oklahoma, 98 S.Ct. sentencing proceeding. Defendant did not 469 P.2d 148 (1982); did not consideration objection 455 U.S. first time on the offenses. Lockett v. object repeatedly held Noble, instructions State v. the time of trial. He for the first person L.Ed.2d must be to the instructions appeal with object Rodriguez, Ohio, as well as the Florida has cannot be Eddings these when the 438 U.S. Trujillo to these that ob time on jury v. death a prisonment. tion (C), states: ate” in posed if: or added.] posed appeal, the The Capital the crime and Defendant C. The death (4) B. 31-20A-4(B) disproportionate Hf validity the sentence comparison who In addition to the other in similar “excessive ^[*] received a argues that of the death supreme Felony and the pertinent part of ^[*] cases, to the defendant. of death and/or Sentencing to the court shall rule on sentence of life ^[*] considering similar crime of his sentence of shall sentence. disproportion- is excessive ^[*] matters not be [Emphasis Act, ^[*] both Sec- im- im- im- on represents ruled on this issue when Section act recently This an State, Vaught sentence is involved. In which we are Legislature required (Fla.1982), ar with interpret the defendant in accordance sound rules So.2d the court gued provide statutory failed to construction. Section 31-20A— aggra 4(B) only on this complete instructions states that Court can decide dispro of death is vating mitigating if a sentence excessive or 31-20A-4(C), Supreme Court held that Section portionate. Florida “[s]ince made no the in this Court to review objection Legislature directs [defendant] below, not be to see if “the sentence point may structions death sentence Also, disproportionate to the appeal.” Id. at death is excessive raised on cases, in similar penalty imposed habeas consider- United States *9 excessive punishment whether a is mining both the crime and the defendant”. We ing Georgia, Coker v. Legislature means that in and unconstitutional.12 assume that 2861, 2866, 584, 592, cases, 97 S.Ct. considering both the crime 433 U.S. similar (1977), requirements stated the defendant, of L.Ed.2d 982 a defendant convicted specific aggra- Gregg murder under a of as follows: degree first put should not be vated circumstance makes no mea- (1) punishment] [The if another defendant or other defend- death goals to acceptable contribution surable ants, convicted of murder under the same nothing hence is more punishment of aggravated given circumstance is life impris- imposi- and needless purposeless than the onment, justification. unless there is some suffering; or pain tion of adopt following guide- we is of (2) punishment] grossly out [the review under this lines for Section. the crime. severity to the of proportion only will review this issue when 1. We test, reviewing a sentence under this When appeal. raised on un- judgment out that a pointed the Court review, only we consider 2. In our will be, or appear such a review should not der in which a defendant New Mexico cases be, subjective views of an merely capital convicted murder un has been of Justice; rather, the Justices have individual circums der same objective an duty to review the case on tance(s).11 Georgia, supra. Whatever level. Coker v. those New Mexico cases Only 3. be, may personal own beliefs our was convicted under which a defendant are, of the of the Union government States circumstance(s) the same laws, and not of men.” “government[s] penal- received either the death and then Madison, (1 Cranch) 5 U.S. Marbury and whose convic- ty imprisonment or life 2 L.Ed. 60 Attention must also previ- upheld tion and sentence have been public concerning to the attitudes Court, will be considered ously by history, sentence and to its particular comparison. appropriate and the re- legislative attitudes precedent, the record and com- 4. We will review jurors. Georgia, Coker v. sponses of the the offense and all other pare the facts of analysis such an in deter- Gregg did supra. aggrava- presented by way evidence for a deliber- that the death mining whether mitigation tion or determine purposeless impo- neither a ate murder was disproportion- or the sentence is excessive grossly nor punishment of a severe sition ate. for the crime. disproportionate Supreme Court The United States guidelines, these we adopting imposition of the Gregg found Supreme have reviewed the United States had crime of murder penalty for the the issue opinions that have discussed Court acceptance United long history Georgia, su Gregg proportionality. At the time the England. constitutionality upheld which first pra, ratified, capital Eighth Amendment the issue of penalty, addressed in ev- was a common sanction punishment in relation punishment excessiveness of The United States ery a re state. Gregg, penalty. to the death Under appro- abstract, recognized has repeatedly in the punishment view of Trop v. penalty. priateness to be con particular, rather than in the 86, 99, Dulles, U.S. when into excessiveness. inquiring sidered (Chief Warren (1958) Justice in deter- L.Ed.2d 630 must be considered aspects Two punishment attorney duty clause of The cruel and unusual of the defendant’s 11. It is the directed, part, Eighth Amendment supply of similar the against the Court with information punishments their exces- all public record. cases. Such information is severity greatly dispropor- length are 14-3-25, through sive N.M.S.A.1978 14-3-1 §§ (Orig. charged. Enmund the offenses 1982). tionate to Supp. and Cum. - -, Florida, 102 S.Ct. L.Ed.2d 1140 *10 penalty wrote “the has been em- We find death that Defendant’s sentence and, in ployed throughout history, day our a of death for the deliberate murder of Jew widely accepted, when it is still it cannot be ett is neither excessive nor disproportionate. concept said to violate the constitutional of We thoroughly have reviewed the record Resweber, cruelty.”); Francis v. 329 U.S. transcripts Defendant’s trial. De (1947); 91 L.Ed. 422 In re S.Ct. ignores fendant the evidence when he as Kemmler, U.S. S.Ct. serts that his situation Trujil is “similar” to Utah, L.Ed. 519 Wilkerson v. 9 U.S. lo’s, claiming when that his sentence is dis (1878). Finally, legis- 25 L.Ed. 345 proportionate. The evidence shows that the thirty-five (35) latures of at least states fight resulting in Jewett’s death was start have provide enacted statutes which for the ed either because pride Defendant’s penalty death in at least some crimes that hurt or because Defendant would not do result in the death person. of another Bobby porter Garcia’s duties. While Jewett 179-80, Gregg Georgia, supra, v. Trujillo in “bearhug”, had a Defendant Therefore, 96 S.Ct. at 2928. the United turned his attentions from his attack on Supreme Court concluded the Bobby intentionally Garcia and and unmer death a penalty for deliberate murder is cifully stabbed Jewett from behind. Al purposeless imposition neither the of severe though Trujillo Defendant and were tried punishment nor punishment grossly dispro- crime, for the same the evidence does differ portionate for the Gregg Georgia, crime. v. as to the during actions of each the crime. supra. Proportionality review in New Mexico is The United States Court has first and foremost particular directed to the imposing suggesting avoided a method or circumstances of specific a crime and the model for appellate propor- state review of duty character of defendant. In our S.C., tionality. v. Copeland, 300 S.E. review the determination jury, we This is obvious from the fact will not retry may case for what be a statute, that the Texas scrutinized Jurek better result. Texas, supra, provided v. for no proportion- Also, review. ality Gregg neither VI. CONCLUSION Florida, Georgia, supra, nor Proffitt v. su- pra, any language elevating pro- was there having carefully After reviewed rec- portionality promi- review to constitutional us, transcript ord and in the case before we nence. v. Copeland, supra. There- conclude that there was no error committed fore, the has left proportionate re- on the issues before us in and that this case view to the individual states. Id. was validly imposed. sentence the judgment Court, however, appears to look at punished Defendant be is by death af- deciding ultimate result when whether firmed. This case remanded to the trial petitioner’s a punishment is excessive or court to set the date of execution. disproportionate. example, For the Court has found that is exces IT IS SO ORDERED. punishment sive when such applied to rape. conviction for su Georgia, Coker PAYNE, C.J., and FEDERICI Also, pra. is excessive STOWERS, JJ., concur. applied when to an accomplice who aids and felony, SOSA, Justice,

abets where in the course of specially concur- Senior felony murder is committed oth ring except on all issues the issue of the ers than accomplice, accomplice imposition of death. kill, kill,

himself attempt did not intend SOSA, Justice, specially concur- Senior killing place take or know that ring. lethal force would be employed. Enmund Florida, - U.S. -, opinion except I with the majority concur penalty. L.Ed.2d 1140 imposition as to the of the death outweigh the do not circumstances gating penal- that the death I not believe While do as itself is unconstitutional in and of ty prove state hold that the required, I would It is not punishment, unusual

cruel and The test doubt. possible all Capital Felony beyond Sentenc- Mexico’s that New *11 A reasonable reasonable doubt. through 31- is one of Act, 31-20A-1 ing Sections and upon reason a doubt based doubt is is 20A-6, (Repl.Pamp.1981), N.M.S.A.1978 Const, that kind doubt common sense —the the U.S. under unconstitutional person hesitate a reasonable Const., would make XIV and the N.M. VIII and amends. important more and graver act in the following 18, II, and for Art. §§ life. affairs of Jury Instructions (1) the reasons: Uniform inconsistent, confus- sentencing are used at 39.31. N.M.U.J.I.Crim. standards for inadequate

ing provide on a unanimously agreed have you If and life between death final decision aggravat- finding that one or more cir- (a) “mitigating in that imprisonment present, charged were ing circumstances defined, is (b) jury is not cumstance” to be penalty must then consider you written statement to make a required not determining the case. imposed in this mitigat- particular that it has considered must consider imposed, you penalty to be is circumstance, (c) no standard ing during this admitted of the evidence all may determine jury which the provided by the evidence proceeding and sentencing out- circumstances aggravating whether which the the trial during admitted circumstances; (2) the mitigating weigh murder. guilty found defendant procedure provide statute does whether there then consider You must either the review of meaningful appellate circumstances. any mitigating are proportionality; sentencing decision mitigating are cir- find there you If equally does not fall (3) cumstances, weigh the must then you instead, statute but, Mexico’s all on one against the mitigating circumstances allow for Jury Instructions and Uniform you circumstances aggravating or more culpable in- equally treatment of different weighing After in this case. have found dividuals. circumstances and the aggravating circumstances, weighing them

mitigating other, I considering both against each crime, shall you the defendant used at Jury Instructions The Uniform should whether the defendant determine through 39.10 sentencing, N.M.U.J.I.Crim. imprison- or life to death be sentenced 39.34, (Repl.Pamp.1982), N.M.S.A.1978 ment. statute, 31-20A-1 §§ inconsistent, 31-20A-6, confus- 39.33. are N.M.U.J.I.Crim. through standards provide inadequate ing and a verdict complete jury required The is and life final decision between 39.34, specifying form, N.M.U.J.I.Crim. imprisonment. they have circumstance aggravating which required is not jury found. relevant to this case instructions jury The circumstances mitigating which to state are as follows: required they nor are they have considered sen- you cannot provides The law that the found they have to state whether you unless to death tence the defendant or do not out- do circumstances mitigating a reasonable doubt beyond satisfied are circumstances. weigh aggravating under was committed the murder constitutionally of a circum- requisite more of the one or basic is that it sentencing procedure always charged. capital The burden valid stances guide, “objective standards a reasonable beyond provide must prove on the state to rationally reviewable make committed regularize, the murder was doubt a sentence imposing process for more of the one or under Carolina, 428 v. North miti- Woodson and that the death.” charged circumstances 280, 303, 2978, 2990, U.S. S.Ct. L.Ed.2d N.M.U.J.I.Crim. 39.31 and 39.33 do not (1976); Gregg Georgia, see 428 U.S. provide guidance as to the (1976); 49 L.Ed.2d S.Ct. standard to use in weighing aggravating Florida, Proffitt v. 428 U.S. 96 S.Ct. against mitigating circumstances circum- Texas, 49 L.Ed.2d 913 Jurek v. example, stances. For the jury way has no L.Ed.2d 929 of knowing weighing whether their should (1976). The United States aby preponderance of the evidence or has said that beyond a reasonable doubt. The Furman mandates that where discre- no guidance in the event tion is afforded a sentencing body on a aggravating circumstances are equally bal- grave matter so as the determination of anced with the mitigating whether a human life should be taken or circumstances, Both the aggravating spared, suitably that discretion must be *12 necessary support are a death sentence in directed and limited so toas minimize the Mexico, mitigating circum- risk of wholly arbitrary capricious and stances, may which mitigate against imposi- action. sentence, tion of the death involve factual 189, Gregg, 428 at 96 at supra, U.S. S.Ct. that are not findings required to be made 2932. New Mexico’s death sentenc- güilt phase and are not made at the ing procedure require- does not meet these sentencing trial. statute re- ments. quires aggravating circumstances be The term “mitigating circumstance” is beyond found a reasonable doubt. 31- § not defined or penalty statute Similarly, 20A-3. there should be some form, jury Indeed, instructions. the verdict finding standard for a that aggravating 39.34, N.M.U.J.I.Crim. neither mentions outweigh circumstances mitigating circum- mitigating requires circumstances nor any stances. finding respect to them. exacer- This problems bates the inherent in N.M.U.J.I. process Due requires reasonably clear 39.33 gives jury guidance which no as to guidelines for triers of fact in order to the meaning “considering both the de- prevent arbitrary and discriminatory en- fendant and the crime.” The only aggra- 566, Goguen, forcement. Smith v. 415 U.S. vating circumstances jury may which a con- 1242, (1974). 94 S.Ct. 39 L.Ed.2d 605 Due specifically sider are those listed in the stat- process protections are demanded where a Thus, ute. 31-20A-5. the defendant § finding new of facts must be made in order may and the crime not be considered as an support a particular sentencing outcome. aggravating circumstance but only miti- 605, Patterson, Specht v. 87 U.S. S.Ct. gation. jury obviously should be in- 1209, (1967). 18 L.Ed.2d 326 The sentenc- structed to this effect. Failure to so in- trial, satisfy well as the must ing process, as jury struct would allow them to con- the Due Process v. Flori- Clause. Gardner sider defendant and the crime in aggra- da, 349, 1197, 51 L.Ed.2d U.S. vation and would a juror allow to use his (1977) (plurality opinion). Traditional prejudice unfettered bias or against a de- imposition forbid the process due standards fendant of a different ethnic or racial which “li- any procedure of sanctions under group. standard censes the create its own jury to requires N.M.U.J.I.Crim. 39.31 a finding Lowry, 301 in each v. U.S. case.” Herndon of the negative proposition that “the miti- 741, 242, 263, 81 L.Ed. 1066 57 S.Ct. gating circumstances outweigh do not Pennsylvania, 382 U.S. v. Giaccio aggravating circumstances.” An instruc- L.Ed.2d 447 86 S.Ct. tion to negative proposition find a is often in- statute New Mexico’s Because confusing jury. to a confusing The use of standard, they any provide fail to structions instructions constitutes reversible error. improper application Wise, susceptible See v. are State 620 P.2d are therefore unconstitutional. carefully prejudice. or adequately passion A must be under the influence of for a provide does record Nor the statute Gregg; supra, deliberations. guided in its evidence supports if the which determine at 96 S.Ct. 2934. Several circumstances finding mitigating jurors such direction to states have circum- outweigh do Arkansas, statutes. their death provided by which procedure stances. No Carolina, and Washington Ohio re- North whether may review findings quire jury disproportionate sentence is excessive outweigh mitigating cir- circumstances circumstances, penalties imposed in similar beyond reasonable doubt. cumstances defendant and the considering both the 41-1302(l)(b) (1977); N.C. Ark.Stat.Ann. § Thus, precluded from crime. this Court 15A-2000(c)(3) (Supp.1981); Gen.Stat. § jury’s sentencing properly reviewing 2929.03(D)(2) (3) Ohio Rev.Code Ann. § verdict. (Page 1981); Wash.Rev.Code Ann. 10.95.- jurisdiction’s This doctrine fundamen- 060(4) (1981). prohibits Connecticut error, encompasses any within it tal case there any death sentence where an accused a funda- deprives error that Conn. mitigating exist the assertion of the mental allows right, 53a-46a(e) (f) (1981). § Gen.Stat. to due right process denial a defendant’s in confusing inadequate The use time on appeal to be the first raised for constitutes reversible error. See structions Garcia, justice see that is done. State DeSantos, Wise, supra; 1012, reh’g granted, 19 143 P. *13 458, (1976); 1265 553 P.2d N.M. 420, (1914); P. 1014 State v. Gar- N.M. 143 371, Buhr, 482 (Ct.App. N.M. P.2d 74 82 cia, 302, 459 (1942). 128 P.2d N.M. opinion correct 1971). majority The is may raise the issue of Mr. Garcia to objects appeal. who neither reviewability that a defendant on nor tenders his own given instructions this requires Section Court to 31-20A-4 for right object to the first time waives his death. review of every sentence Noble, 360, on N.M. appeal. State of conviction and sen- judgment A. The However, a funda (1977). P.2d where be re- automatically tence of death shall the accused has been violat right mental court of supreme viewed the the state by ed, discretion, in its see that may, this Court of New Mexico. Garcia, 19 injustice is not done. State B. In to the other matters on addition reh’g granted, 143 P. N.M. court shall rule on appeal, supreme the P. 1014 v. Gar death sentence. validity the cia, 128 P.2d 459 The shall not im- penalty The be C. death the rights process to due under defendant’s posed if: Eighth Amendments are Fourteenth and support (1) does not the the evidence where outcome of clearly fundamental the finding statutory aggravating a cir- rights a of his is that defendant is violation cumstance; sentenced to die. New Mexico’s statute supports finding a (2) evidence even the mini provide instructions fail mitigating circumstances out- required. Accordingly, mal guidance circumstances; weigh be in this sentence of death should reversed (3) imposed of death the sentence to life in case and the defendant sentenced passion, prejudice under the influence prison. factor; or any arbitrary or other is

(4) of death excessive the sentence penalty to the im- disproportionate or II cases, posed considering both similar Mexico’s death statute does New the crime the defendant. procedures development for include 31-20A-4(C). § may of a which this as- record Court imposed penal- a no certain if a has death is standard Because the sentencing, evidence at capricious weigh or or which ty arbitrary grounds on proper is means ilar? for propor- Court denied Is record review of sentencing review of the verdict is un- tionality be established in the trial court? able to determine if such is arbi- verdict If developed the record for review is to be trary capricious. level, at appellate are evidentiary hear- ings is, best, required? language The Georgia, Texas, laws The Florida and susceptible many different interpreta- which have been approved by the United process tions. Due demands proportionality Court, Supreme Prof- Gregg, supra; review, Georgia, Coker v. fitt, Jurek, supra; supra, require the find- (1977) L.Ed.2d 982 (plurality ing of at least one circum- opinion), Legislature apparently in- beyond stance to sup- reasonable doubt tended to comply with requirement. port a sentence of death. unlike However, this section is vague so that an Mexico, require these three states accused is not meaningful accorded appel- Silver, findings. written Constitutionality disagree late review. I guidelines with the of the New Mexico Capital Punishment for review of set proportionality forth in Statute, 11 N.M.L.Rev. 269 majority opinion. This Court is statuto- United States never has rily mandated review this issue whether discussed the potential incomplete ap- addition, it on appeal is raised or not. In I pellate inadequate review because of writ- believe that cases in which the sen- findings. ten I meaning- Id. believe that imposed tence should compared ful appellate review of a sen- charged cases in which the defendant tence is not written possible without such capital with a ag- offense under same findings. gravating Comparison Gregg, In supra, United States Su- should also be made to cases preme Georgia’s Court relied on appellate charged defendant was of- capital review individualized death sentences which, reason, fense but for whatever were rejecting the defendant’s contention not appealed to this Court. the Constitution’s ban on cruel and unusual Proffitt, supra, the Court found punishments imposition of the barred the *14 Florida’s failure a rigid objec- to formulate death penalty sentencing procedures under tive as a test standard of review that risk did not created a substantial that it would necessarily render the appellate arbitrary be inflicted in review capricious an and process or arbitrary ineffective manner. because the performed Florida court its function Where the is re- sentencing authority death sentence review with a maximum quired to specify the factors it relied It be rationality consistency. cannot decision, in upon reaching its the further said this that Court’s review Garcia’s safeguard appellate review meaningful is sentence consistent with its review of is available to ensure that sen- Trujillo’s Trujillo, sentence. See imposed capriciously tences are not or in 657 P.2d 107 The differ- a freakish manner. ence presented in the evidence in the two Id. U.S. at at S.Ct. 2935. New' significant enough justify eases is not to Mexico’s lacks procedures statute for mak- one to being defendant sentenced ing comparisons between What cases. impos- the to life It is imprisonment. other kinds cases are we to What consider? sible to from record who determine the does far in similar mean? How back New struck blow the resulted Officer judicial history Mexico’s should comparisons Jewett’s death. be extrajudicial made? Should cases brought analysis? into the Are which It the interesting majority cases is to note that in plea bargains ended a cir- pros- changed opinion subsequent my relevant? If their to charging calling ecutor exercises dissent attention to their culating discretion the process adopt and seeks an without failure for review of guidelines indictment to circumstances, though aggravating proportionality. guidelines is that case sim- Even Black, the Caprice Racism in Death out, they still do not have now been set Penalty, Report for Annual Chief Jus- meaningful appellate review Final allow for a For the set forth above. on Advocacy the reasons I have Earl tice Warren Conference reasons, Capital I believe the foregoing the This United States fail Sentencing Act as whole must Felony has arisen un- precisely problem rights accorded being as in violation case. of the Garcia Garcia der facts Fifth, and Fourteenth Eighth by the but, indicted be- Trujillo jointly were the United States Constitu- Amendments to severance, they separately were cause of of the New analogous provisions tion and of Officer Jewett. convicted of the murder my judgment It Mexico Constitution. jury spared Trujillo’s Trujillo, supra, the In impose the death that we cannot aggravating by refusing to find life procedure until some so that up we have set while in a circumstance that incarcerated propor- review for meaningful appellate Mexico, in New the de- penal institution with had in accordance tionality can be kill, fendant, intent to murdered with the 31-20A-4(C). § and criminal employee an of the corrections case, department. rehabilitation Ill aggravating circum- jury found the same “It to importance is of vital the defend- remained unsev- If these cases had stance. community ant decision and to ered, the not have made this jury could be, impose appear sentence the death Without this incon- finding. inconsistent be, caprice reason rather than based on have been sistency, they given both would Gardner, supra, at emotion.” have life or both would been they 358, 97 1204. New Mexico’s death meaningfully distin- death. One cannot all apply equally does not penalty statute case, in which guish Trujillo equal- but for different treatment of allows from the imposed, sentence was not Garcia culpable arbitrary The ly individuals. case, in sentence was im- which the death capricious nature of this has not posed. sentencing Mexico’s been New rectified Trujillo why We jury don’t know guidelines Without for procedures. failed find the circumstance. an without jury appropriate to follow and confused jury may have been review, meaningful appellate procedure may instructions or have meant find that is unable to determine whether this Court outweigh did mitigating circumstances capriciously and is also has acted compari- A similar cases propor- examine unable to vague Trujillo son of the case the instant language such as is tionality. Under statute, New Mexico case Mexico’s strongly found in the fol- illustrates lowing arises: instructions are inconsist- problem statute and *15 confusing, ent and this Court cannot jury, grounds on no or on [T]he sentences, such death

grounds, articulated, meaningfully review articulated or not jury spare any can defendant’s and that the statute and instructions by life either refusing fraught potential sentence to death are for different though “ag- gravating found, circumstances” be as equally culpable treatment of individuals. likely, is more simply failing, whatever evidence, to find aggravating circum- CONCLUSION stances —both being unreviewable ac- New Mexico’s death statute and tions. The strictly logical corollary is jury violate both instructions United jury may, within the same field and the Constitution of Constitution eligibles, fail to spare some oth-

ers, They are the State of New Mexico. confus- and need give no reason for the dif- ing, vague provide adequate, ference. fail to Arbitrary lenience equals arbi- trary harshness, objective guide in its by an iron standards law of sheer identity. life imprison- between death and decision No procedure whereby ment. exists this can review the meaningfully jury’s

decision. This Court does not have an ade- objective

quate procedure capital review

felony cases for nor does proportionality, its the consistency

review this case meet Proffitt,

requirement supra. established inadequately

Because the instructed and because of the lack reviewability, Pickett, Holmes, Bates, Lloyd Bates & O. great there is a for potential different Jr., Cruces, Las for plaintiff-petitioner. culpable treatment of equally defendants. constitutionally Death cannot result from Sutin, Browne, H. Thayer Perry Ryon, & a process. such Albuquerque, defendant-respondent. reasons, For foregoing I respectfully

dissent as to the imposition OPINION I would hold that New sentence. Mexico’s PER CURIAM: statute is unconstitutional granted We to review opin- certiorari remand the imposition this case for of a Appeals ion of the Court of this case. imprisonment. sentence life Respondent quash moved to the writ be- jurisdiction;

cause this peti- Court lacks having tion for certiorari been twenty- filed days two after of Appeals the Court denied a motion for rehearing.

664 P.2d 28(b) Civ.App.R. (Cum.Supp. NMSA 1982) added), (emphasis pertinent states CRUCES, LTD., COACHLIGHT LAS part: Plaintiff-Petitioner, (b) Time. for writ of Petition certiora- ri twenty shall be filed ... within days MOUNTAIN BELL TELEPHONE COM- after ap- final action the court of PANY, Defendant-Respondent. peals .... No. 14901. petition We have held that for writ of Court of Mexico. certiorari must be within twenty days filed of the date of final action the Court of 2, 1983. June Appeals. Corporation Gulf Oil v. Rota- Co.,

Cone Field Operating P.2d 640 reviewing after record, this petition we hold that jurisdiction certiorari is lack of quashed for and we do not reach the merits of the petition.

The Clerk of the Court is directed to opinion along with the publish opinion of the Court of Appeals.