Lead Opinion
{1} Frank Martinez pleaded guilty to the murder of Crystal LaPierre and, following a capital sentencing hearing, was sentenced to death. The transcript of his plea hearing was subsequently lost and a reconstruction hearing was conducted to replace that transcript. Defendant asserts: (1) it was error for a judge other than the assigned judge to accept his original plea; (2) the missing transcript deprived Defendant of his right to appellate review; (3) the reconstruction hearing was improperly conducted; (4) the trial court failed to fully inform Defendant of his right to be sentenced by a jury; and (5) the sentencing hearing was improperly conducted. We hold: (1) the acceptance of the plea by a judge other than the assigned judge was not error; (2) the missing transcript does not deprive Defendant of the right to appeal or otherwise constitute fundamental error; (3) the reconstruction healing was conducted improperly; and (4) the trial court erred in
I.
{2} At a plea hearing held January 19, 1995, Defendant pleaded guilty to the August 26, 1993 murder of twelve year old Crystal LaPierre. In his Plea and Disposition Agreement, Defendant pleaded guilty to first degree murder, first degree criminal sexual penetration, conspiracy to commit murder, tampering with evidence, and kidnaping. No charges were dropped, nor did Defendant receive any other consideration, in exchange for his plea. On March 14, 1995, Judge Martin Pearl conducted a sentencing hearing at which he heard testimony from a co-defendant, John Paul Aguilar. Based on Mr. Aguilar’s account of Defendant’s violent participation in this crime, Judge Pearl determined that three aggravating circumstances were present and sentenced Defendant to be executed. The grim details of this murder, however crucial to the determination of Defendant’s sentence, do not inform the narrow issue that we now address on appeal: the propriety of the procedures afforded Defendant.
{3} The circumstances surrounding Defendant’s plea have, unfortunately, been punctuated by procedural and clerical irregularities. First, although Judge Pearl was assigned the case in district court, Judge John Pope, of the same district, took Defendant’s plea and waiver of a jury for sentencing. Second, the only record of Defendant’s plea hearing was lost. After Defendant filed a motion for summary reversal on October 30, 1997, we issued an order demanding production of the lost tapes, or, in the alternative, requiring a hearing to determine whether the plea hearing could be reconstructed. The lost tapes could not be found and a reconstruction hearing was scheduled. Over defense counsel’s objection, the trial court conducted the reconstruction hearing in Defendant’s absence.
{4} At the reconstruction hearing, the State called the two prosecutors who were present at the original plea hearing. They recalled the factual basis for Defendant’s plea and portions of Judge Pope’s colloquy with Defendant. Judge Pope produced a sheet of questions that he always asks when determining whether a plea has been entered voluntarily, knowingly, and intelligently. At the end of the hearing, Judge Pope drafted a series of findings of fact and conclusions of law in which he affirmed the constitutional propriety of the original plea hearing over which he had presided. On appeal, Defendant asserts that this Court should, alternatively, allow Defendant to withdraw his plea of guilt, vacate Defendant’s sentence and remand for resentencing, or impose a life sentence. For reasons outlined below, we do not allow Defendant to withdraw his plea. However, in response to errors arising from the reconstruction hearing and Defendant’s waiver of jury sentencing, we order a new reconstruction hearing and vacate Defendant’s sentence.
II. THE TAKING OF THE PLEA
{5} Judge Pearl was the assigned district judge in this matter. Apparently, one of the parties requested a setting for a change of plea while Judge Pearl was on vacation and Judge Pope took Defendant’s plea in Judge Pearl’s stead. Misconstruing our rules of criminal procedure, Defendant
III. THE MISSING TRANSCRIPT
{6} After the initial appeal was docketed on February 5, 1996, Defendant’s original appellate counsel sought and received several extensions for the filing of the Brief in Chief. On November 15,1996, we granted a motion to allow the withdrawal of Defendant’s original appellate attorney and the entry of new counsel. Defendant’s new attorney noticed that the transcript of the plea hearing was absent from the record on appeal. After attempting to locate the transcript, defense counsel obtained an affidavit from the court monitor confirming that the tapes of the plea hearing were missing. Defense counsel then met with prosecutors and attempted to reconstruct a record of the hearing. On October 14, 1997, after it became apparent that the two parties could not reconstruct the record, defense counsel filed notice to that effect with the district court.
{7} Citing State v. Moore,
A. Standard of Review
{8} Death penalty cases are different from non-capital cases. Woodson v. North Carolina,
{9} Despite the inherent difference between capital and non-capital cases, we subject the procedurally deficient claims of capital defendants, like those of non-capital defendants, to fundamental error review. State v. Jacobs,
{10} Because of the gravity and irrevocability of the death sentence, and the grave injustice that would accompany an erroneous execution, error in a capital case is more likely to rise to fundamental error than the same error in a non-capital case. In a capital case, a legal defense often represents the only lawful mechanism by which a defendant may preserve his or her life. Any error that encumbers that mechanism unfairly debilitates the defendant’s claim to life, magnifies the risk of an erroneous execution, and necessarily constitutes a circumstance that “shock[s] the conscience” and “implicate[s] a fundamental unfairness within the system that would undermine judicial integrity if left unchecked.” Cunningham,
{11} In holding that errors which impair a defendant’s death penalty defense are per se fundamental, we join a number of jurisdictions that have demonstrated similar intolerance for error in capital cases, even when the defendant’s claim is procedurally deficient.
B. Whether the Missing Transcript Constitutes Fundamental Error
{12} Clearly, the loss of the transcript of the plea hearing constituted error. The State attempts to blame Defendant for this error by observing that appellants normally carry the burden of furnishing the appellate court with a transcript of the lower court proceeding. See Rule 12-211(E) NMRA 2002. While this observation does reflect the general rule, it clearly does not contemplate the present situation, in which the trial court never made a transcript available to Defendant. In any case, for purposes of our fundamental error analysis, Defendant did not create this error. Cf. Clark,
{13} Although we reject, for reasons articulated below, the reconstruction hearing already conducted in this case, we are nevertheless confident that a new reconstruction hearing will restore the missing transcript. Such a hearing will neutralize any prejudice suffered by Defendant as a result of the missing transcript. See Moore,
IV. DEFENDANT’S ABSENCE FROM THE RECONSTRUCTION HEARING
{14} Defendant asserts that his absence from the reconstruction hearing violated his due process right to be present at a proceeding “whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” United States v. Gagnon,
{15} The few jurisdictions that have addressed this issue have resolved it with such clarity and resolve as to make it seem irrefutable. In People v. Braithwaite,
{16} We also direct that a judge other than the original trial judge preside over the new reconstruction hearing. The general rule is that the “judge presiding at the trial may not testify in that trial as a witness.” Rule 11-605 NMRA 2002. In keeping with this rule, Judge Pope refused to provide his recollection of the answers to a series of questions that he routinely asks pleading defendants. In the interests of facilitating the unhindered testimony of Judge Pope, the new reconstruction hearing must be conducted by another judge. Judge Pope may be called as a witness at the new proceeding.
V. WAIVER OF A JURY FOR SENTENCING
{17} Finally, Defendant argues that the trial court erred in failing to fully inform him of the difference between sentencing by the court and sentencing by a jury. Although Defendant’s conviction still depends on the outcome of the reconstruction hearing, we address his sentencing claim now, in the interest of judicial economy, and in order to avoid the necessity of another appeal. State v. Garcia,
{18} Because the constitutional right to a jury predates the modern-day bifurcation of death penalty cases into guilt and sentencing phases, that right necessarily applies to both. See N.M. Const, art. II, § 12. The Act confirms that a defendant has a right to be sentenced by a jury. NMSA 1978, § 31-20A-1(B), -3 (1979). Under the Act, in order to impose a sentence of death, a sentencing jury must “unanimously specif[y] the sentence of death.” NMSA 1978, § 31-20A-3 (1979).
{19} As a matter of pure probability, the requirement of jury unanimity means that while a defendant who is sentenced by a judge has only one chance of avoiding the death penalty, a defendant who is sentenced by a jury has twelve. See, e.g., Lopez v. United States,
{20} The failure to fully advise Defendant of the nature of. jury sentencing rendered his waiver unknowing and unintelligent. His unknowing and unintelligent decision to be sentenced by a judge, which in turn enabled that judge to sentence him to death, impaired his defense against the death penalty. This error was far more prejudicial than the sort of harmless error that we overlook when engaging in a fundamental error analysis. See Cunningham,
VII. CONCLUSION
{21} Defendant’s waiver of jury sentencing was not voluntary, knowing and intelligent, because the trial court failed to advise him of the requirement of jury unanimity. The acceptance of that deficient waiver constituted fundamental error. We therefore vacate his death sentence. Defendant’s guilty plea stands, but the transcript of that plea must be reconstructed in accordance with the following instructions: (1) Defendant must be present at the new reconstruction hearing; and (2) the trial judge, Judge Pope, may not preside over the hearing, but may testify. The presiding judge will determine whether the reconstructed record affirmatively demonstrates that the original plea was voluntarily, knowingly, and intelligently entered in accordance with Rule 5-303(F) NMRA 2002.
{22} IT IS SO ORDERED.
Notes
. Neither is the dissent’s account of the facts of this murder material to any of the issues addressed therein. Since this Court does not address any evidentiary claims, the gruesome details of this crime are irrelevant to our analysis of the legal process afforded Defendant. Moreover, due to the loss of the transcript of the plea, we have no record of the facts underlying the plea. We are unwilling to proclaim the co-defendant’s allegations the "facts” of this case.
. See, e.g., State v. Hamilton,
. We disagree with the dissent's conclusion that Chessman V. Teets,
Dissenting Opinion
(dissenting).
{23} Defendant Frank Martinez pleaded guilty to first degree murder, first degree criminal sexual penetration, conspiracy to commit murder, tampering with evidence, and second degree kidnapping of a twelve year old girl. I would affirm Defendant’s convictions and sentence of death. The majority holds otherwise; thus, respectfully, I dissent. I agree with the majority’s rejection of Defendant’s argument that it was improper for Judge Pope to accept the plea because Judge Pearl was the assigned trial judge. I also agree with the majority’s conclusion that, because a properly reconstructed record provides a basis for the review of his appeal, his right to appeal has not been impaired by the lost record. However, I firmly believe that the current reconstructed record is proper, and is perfectly adequate to review Defendant’s conviction. Respectfully, I disagree with and dissent from the majority’s
{24} The majority states that “if the judge who conducts the new reconstruction hearing determines that reconstruction is impossible or unreliable, Defendant’s original plea must be vacated and he must be re-arraigned.” Majority opinion, ¶ 13. The majority concludes, “[t]he presiding judge will determine whether the reconstructed record affirmatively demonstrates that the original plea was voluntarily, knowingly, and intelligently entered in accordance with Rule 5-303(F) NMRA 2002.” Majority opinion, ¶ 21. The majority has no authority, discussion, or basis for this directive. The majority’s mandate effectively means that the district court’s ruling on the validity of Defendant’s plea following the second reconstruction hearing will be conclusive and not subject to review by this Court. However, it is clear to me that the resolution of Defendant’s appellate claim of a defective plea must be made by this Court, as part of its original appellate jurisdiction over capital cases, rather than by the district court in the course of a remand which has as its sole purpose the settlement of the record on which Defendant’s appeal is to be decided. The district court is without jurisdiction to determine whether Defendant’s plea was voluntary. Defendant’s case is currently before this Court on appeal. A reconstruction hearing determines, for purposes of appellate review, what took place at the hearing in which Defendant pleaded guilty. Under Rule 12-211(H) NMRA 2002, “the district court shall settle and approve the transcript of proceedings. Upon approval, the district court clerk shall include the transcript of proceedings in the record proper and immediately transmit it to the appellate court.” (Emphasis added.) The only jurisdiction that the district court has in relation to the present case, on remand from this Court pursuant to Rule 12-211(H), is to reconstruct the record of the plea hearing. The reconstruction hearing does not provide yet another opportunity for Defendant to challenge the voluntariness of his plea.
I. Facts and Background
A. Defendant’s 1993 Kidnapping, Rape, and Murder of the Victim
{25} The majority states that the facts of the present case do not inform the issue it addresses on appeal and are irrelevant. Majority opinion, ¶ 2 & n. 1. The majority then advances its belief that the facts are also not material to the issues I address.
{26} The majority also states that because the transcript of the plea hearing was lost, “we have no record of the facts underlying the plea,” and the majority is “unwilling to proclaim the co-defendant’s allegations the ‘facts’ of this case.” Majority opinion, n. 1. John Paul Aguilar’s testimony was given under oath subject to cross-examination by Defendant at his sentencing hearing; the record of this hearing, unlike the plea hearing, was not lost. Thus, this Court has a record of these facts. Apparently, because the record of the plea hearing was lost, the majority will not consider any material that is in the record, including the written plea agreement, the tape recorded sentencing hearing, and the transcribed reconstruction hearing. However, Defendant does not contest the facts as related by Aguilar. In fact, Defendant recites Aguilar’s “allegations” as the evidence in his brief in chief to this Court. Moreover, the sworn testimony of a forensic pathologist regarding the physical evidence in this case corroborates Aguilar’s “allegations.” In addition, these facts are inherently contained in the plea agreement which is in the record on appeal and were found to exist by Judge Pope at the initial plea hearing, see Rule 5-304(G) NMRA 2002, by Judge Pearl at the sentencing hearing, and again by Judge Pope, beyond a reasonable doubt, at the reconstruction hearing. Therefore, like both parties in this appeal recognize, the sworn testimony of Defendant’s accomplice is not a mere “allegation” and can be used to articulate the facts of this case.
{27} On the night of August 26, 1993, Defendant, John Paul Aguilar, and Ronnie Jaramillo drove a twelve-year-old child, an acquaintance of Aguilar, to a secluded area on Mount Taylor, near Grants, New Mexico. As they made their way up the mountain, Defendant, Aguilar, and Jaramillo stopped and sniffed gasoline. When the three returned to the vehicle, Aguilar made unwelcome sexual advances toward the child, and Jaramillo told her, “We’re all going to f* * * you.” Jaramillo then drove farther up the mountain while Aguilar began kissing the victim. Either Defendant or Jaramillo told Aguilar to take off her pants. When Aguilar attempted to remove the child’s pants, the victim “didn’t want to,” but the others told him to continue. The three continued farther up the mountain to a dirt road. After exiting the vehicle, the child tried to escape by running up the dirt road, but Defendant ran after her, caught her, and walked her back to the car. At that point, Aguilar and Jaramillo beat the child.
{28} Defendant threw the child onto the hood of the car and, despite her resistance, took off her pants. Defendant, Aguilar, and Jaramillo each, in turn, forced the child to have sexual intercourse. Following the rapes, Defendant, Aguilar, and Jaramillo discussed the situation behind the car, and the three men all agreed to kill the victim in order to silence her.
{29} The three men talked the child into getting out of the car, and Aguilar and Jaramillo began to beat the child. Jaramillo went back to the car to retrieve a small knife with a two-inch blade and then stabbed the child multiple times in the back. Jaramillo also cut the child’s throat. When this action failed to kill her, Defendant tried to break the child’s neck. During the assault, the victim attempted to speak to the men. Jaramillo then tried to strangle the victim, but his hands slipped into the wounds in her throat; he “grossed out” and could not continue to strangle her. Defendant finally took his belt, wrapped it around her neck, and stepped on her head, forcing her face into a puddle of water and mud in order to drown her.
{31} The forensic pathologist who performed the autopsy described the condition of the child’s body. The victim had blunt trauma injuries on her head and face, including bruises on her face, forehead, lips, and cheek, consistent with injuries inflicted by fists or shoes. The victim’s neck had three cuts which formed a five-inch wound, going up to, but not through, the trachea and into one of the bones, and not cutting into blood vessels. The victim also had six puncture wounds in her back which were inflicted while she was alive but did not enter into the chest or abdominal cavity. The victim had abrasions on her chest, hips, and legs, consistent with the body being dragged across an irregular surface. The victim’s lungs were filled with muddy water, silt, and sand, indicating that she breathed in water with a lot of dirt and other material in it. Although all of her other wounds contributed to her death, the official cause of death was aspiration, or drowning. The victim’s body had postmortem burns and blistering, and forensic evidence indicated recent sexual activity.
B. Defendant’s Guilty Plea and Sentencing Hearing
{32} Defendant was represented by experienced attorneys from the Death Penalty Division of the Public Defenders’ office, including Marc Gordon and at least one other attorney. On January 15, 1995, at a hearing before District Judge John Pope, Defendant pleaded guilty to first degree murder, a capital offense with the possibility of the death penalty or life imprisonment, conspiracy to commit first degree murder, first degree criminal sexual penetration, second degree kidnapping, and tampering with evidence.
{33} On March 14, 1995, District Judge Martin Pearl held a sentencing healing. Defendant was represented by four attorneys: Marc Gordon, Jacquelyn Cooper, Kari Converse, and Joseph Shattuck. Defendant, for the second time, waived his right to be sentenced by a jury. Judge Pearl heard evidence and argument of counsel. On April 7, he sentenced Defendant to death for the capital offense and to thirty-seven and one-half
C. Defendant’s Appeal
{34} Defendant appealed to this Court by filing a docketing statement listing his grounds for appeal on February 5, 1996. In the docketing statement, Defendant noted that he pleaded guilty to the charges and had stipulated that the trial court would conduct the sentencing phase pursuant to NMSA 1978, § 31-20A-3 (1979). Defendant did not challenge his guilty plea in his docketing statement. In other words, Defendant did not raise any issue or error relating to his guilty plea.
{35} It was later discovered that a state employee lost or mislaid the audio tapes and the tape log of Defendant’s plea hearing, in which Defendant had pleaded guilty and waived his right to sentencing by a jury. Upon discovering the lost record, Defendant filed a motion for summary reversal on October 30, 1997. For the first time, over two and one-half years after he pleaded guilty, Defendant argued that he should be able to withdraw his plea because the State could no longer demonstrate that it was voluntary, knowing, and intelligent.
D. Defendant’s 1998 Reconstruction Hearing
{36} This Court denied Defendant’s motion for summary reversal and ordered a reconstruction of the record pursuant to Rule 12-211. On February 10, 1998, Judge Pope held the reconstruction hearing. Judge Pope entered an order reconstructing the record on August 19, finding that, beyond a reasonable doubt, Defendant was instructed regarding his rights, understood those rights, and knowingly, voluntarily, and intelligently entered his guilty plea. Defendant was not present at this hearing; he was not subpoenaed, and neither party requested a transport order to secure his attendance at the hearing. Defendant did subpoena his trial counsel, and although they were present, his appellate counsel did nоt call them as witnesses and, in fact, called no witnesses.
{37} In November of 1998, Defendant filed a motion for summary reversal on the basis of his absence from the reconstruction hearing. His motion was substantially similar to the argument later contained in his brief in chief for this appeal regarding the issue of his presence at the reconstruction hearing. Both Defendant and the State fully briefed this issue on Defendant’s motion. A three-member panel of the Court, including myself, carefully considered and rejected Defendant’s argument. This panel unanimously denied Defendant’s motion on January 7, 1999. The majority now considers Defendant’s argument on presence and, over three years after this unanimous panel decision, is allowing Defendant to have a new reconstruction hearing at which he is present. I do not believe that the panel of this Court erred three years ago in denying Defendant’s motion. I continue to believe, as discussed below, that Defendant’s presence was not required at the reconstruction hearing. My conclusion is supported by binding precedent from the United States Supreme Court, as well as persuasive authority from other jurisdictions.
II. Defendant’s Guilty Plea
A. Preliminary Issues
1. Defendant’s Challenges to His Guilty Plea
{38} Defendant did not challenge his guilty plea in the trial court and never filed a motion to withdraw the plea; he thus did not preserve any argument regarding his guilty plea. Defendant raises only two issues regarding his convictions and guilty plea: (1) he argues that the State cannot prove whether he knowingly, voluntarily, and intelligently entered his guilty plea due to the lost record of the plea hearing; and (2) he argues that it was improper for Judge Pope to accept the plea because he was not the assigned trial judge. Not only are these arguments unpreserved, I also reject Defendant’s second argument because he has failed to support it with authority. See Rule 12-213(A)(4) NMRA 2002; State v. Allison,
{39} Defendant asserts that, because of the imposition of the death penalty, he is entitled to greater scrutiny. The majority agrees with this argument. Majority opinion, ¶ 8. I agree that, under our precedent, Defendant is entitled to greater scrutiny regarding his sentence of death. State v. Clark,
3. New Mexico’s Established Precedent Regarding Fundamental Error
{40} Rule 12-216(A) NMRA 2002 provides that, for an appealing party to preserve a question for review, “it must appeal' that a ruling or decision by the district court was fairly invoked.” “This rule shall not preclude the appellate court from considering ... in its discretion, questions involving ... fundamental error____” Rule 12-216(B). “[Absent fundamental error, even in a death penalty case issues must be properly preserved.” State v. Jacobs,
{41} The majority cites with approval our earlier cases which applied fundamental error in a death penalty context. See Majority opinion, ¶ 9. The majority states that “any error that impairs a defense against the death penalty, whether it arises from the sentencing or guilt phase of a capital trial, is, as a matter of law, fundamental.” Majority opinion, ¶ 10. The majority does not purport to overrule our prior precedent, so despite this broad language, this articulation must be understood in harmony with the fundamental error review that this Court has developed in prior cases. See, e.g., Jacobs,
B. Withdrawal of Defendant’s Plea
1. Voluntariness of Defendant’s guilty plea
{42} As discussed above, the majority attempts to relinquish our duty to review Defendant’s guilty plea to the district court. No matter what the district court determines with regard to his guilty plea in the reconstruction hearing, this case must return to this Court for completion of appellate review. Defendant contends on direct appeal to this Court that the State cannot demonstrate that his plea was knowing and voluntary and that, therefore, he should be allowed by this Court to withdraw his plea. A defendant who pleads guilty to a criminal offense pursuant to Rule 5-304 but wishes to withdraw his or her plea must make a timely motion for withdrawal and prove that withdrawal is necessary to correct a manifest injustice. Clark,
{43} In New Mexico, if a defendant fails to file a motion to withdraw a plea in the trial court, he or she cannot attack the plea for the first time on direct appeal. See State v. Madrigal,
{44} If a defendant properly preserves a claim of an unknowing or involuntary plea by filing a motion to withdraw the plea, the defendant must demonstrate a manifest injustice to the trial court. Barnett,
{45} I believe that Defendant’s challenge to his plea is properly before this Court at this time and that a second reconstruction hearing is unwarranted. Assuming arguendo that Section 31-20A-4(A) requires the review of Defendant’s claim on direct appeal, I address whether Defendant has demonstrated a manifest injustice or miscarriage of justice sufficient to withdraw his plea. I review the question of whether Defendant’s plea was knowing and voluntary by viewing the facts in the record in a light most favorable to upholding the plea because these facts were never subjected to the district court’s review on a motion to withdraw the plea. See generally United States v. Akinsola,
{46} In this case, it is critically important that Defendant has not asserted his innocence.
C. Reconstruction Hearing
1. Waiver of Defendant’s Objection to the Completeness of the Record
{47} Defendant claims that the record of the plea hearing was lost and cannot be meaningfully reconstructed; thus, he argues that because the State cannot demonstrate that his waiver of a trial was voluntary, knowing, and intelligent, he is entitled to withdraw his plea. I disagree. The majority also agrees that the loss of Defendant’s record does not entitle him to withdraw his plea. Majority opinion, ¶ 13. Although Defendant is presumably not responsible for the lost record, as discussed below, he did not comply with the rules of reconstruction or exercise the opportunity this Court gave him to reconstruct the record.
{48} It is well established in New Mexico that the appellant carries the burden of ensuring that the appellate court is provided with a complete record and transcript of proceedings sufficient tо review the appellant’s claims. Rule 12-211(E) (“Each appellant shall be responsible for the timely preparation and filing of the transcript of proceedings.”); State v. Wilson,
{49} In this case, Defendant, upon learning of the unavailable transcript, moved for summary reversal. However, Defendant did not comply with Rule 12-211(H) by providing a statement of the evidence or proceedings. In fact, Defendant has never provided this Court or the district court with his version of what transpired during the plea hearing. The majority agrees that “Defendant has failed to prepare such a statement, and his notice indicating his inability to do so missed the relevant deadline by nearly a year and a half.” Majority opinion, ¶ 7.
{50} Although Defendant was not present at the reconstruction hearing, Defendant had the opportunity to provide a statement of the evidence in accordance with Rule 12-211(H). Additionally, Defendant subpoenaed his trial attorneys for the reconstruction hearing, but his appellate counsel chose not to call them to the stand. Even in his brief to this Court, Defendant does not offer an account of the plea hearing or allege any specific defect in the taking of the plea. Defendant simply contends that the State is unable to demonstrate that Defendant voluntarily and knowingly pleaded guilty at the plea hearing. Defendant does not contend that he did not waive his constitutional rights at the plea hearing, that he did not understand the nature of the charges against him and the potential penalties for those charges, or that
{51} New Mexico’s Rule 12-211(H) is derived from Rule 10(c) of the Federal Rules of Appellate Procedure, and our rale is nearly identical to the federal rule. Federal courts interpreting Rule 10(c) have concluded that the appellant’s failure to file a statement of the evidence results in a waiver of the claim on appeal. See, e.g., Pascouau v. Martin Marietta Corp., No. 98-1099,
[A] party may not seek a new trial simply because matters occurring in the district court are not reflected in the transcript. Rather, that party must at least attempt to cure the defect by reconstructing the record as provided by [Rule] 10(c). In certain cases this effort may unavoidably fall short of the precision necessary for a record amenable to review, and a new trial may be necessary. However, a new trial is not appropriate where the lack of a record is the only error charged and where the appellant made no effort to reconstruct the missing record nor to give any cause for that failing.
Herndon v. City of Massillon,
{52} Defendant relies on Manlove v. Sullivan,
2. Procedures Utilized in Reconstructing the Record
{53} Had Defendant not waived his claim, this Court would “weigh the possible significance of the missing material to a defendant’s right of appeal against such facts proffered by the state as would mitigate or eliminate its significance.” Manlove,
{54} Our remand order referred to Rule 12-211(1) as authority for the reconstruction hearing:
The parties may agree upon a statement of facts and proceedings and stipulate that they deem the statement sufficient for purL poses of review, and the statement shall be filed as a transcript of proceedings within sixty (60) days of service of the general calendar assignment, unless otherwise ordered by the appellate court.
If the parties сannot reach an agreement under Rule 12-211(1), Rule 12-211 provides for the additional authority of the district court to ascertain an accurate representation of the missing record from the parties’ statements.
[I]f a transcript of proceedings is unavailable ..., the appellant shall prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection.... If there are any objections or proposed amendments thereto, the objections or amendments shall be submitted to the district court for settlement and approval Within fifteen (15) days after filing of the objections or amendments, the district court shall settle and approve the transcript of proceedings.
Rule 12-211(H) (emphasis added). This rule establishes the district court’s authority to resolve any conflicts arising from an unavailable, inaudible, or otherwise incomplete record.
{55} Rule 12-211(H) directs the district court to “settle and approve the transcript of proceedings” following the parties’ submission of their respective accounts of the plea hearing. Although the rule does not specifically provide for an evidentiary hearing, such a hearing would be an appropriate way to effectuate the goal of obtaining an accurate representation of the original proceeding. Further, Rule 12-211(H), by providing that an appellant may rely on “recollection,” contemplates that witnesses may testify concerning general events occurring at the prior proceeding rather than requiring a verbatim recitation of the proceeding. Defendant notes that his appellate counsel relied on Rule 5-303(G) for requiring a verbatim record. However, Defendant does not contend that the district court failed to make a verbatim record in compliance with Rule 5-303(G). Instead, he appears to claim that Rule 5-303(G) governs record reconstruction. I reject this claim. We promulgated Rule 12-211 as the specific procedure to govern missing or unavailable transcripts of proceedings.
{56} The desired product of a reconstruction hearing is a reasonably accurate representation of the events that occurred during Defendant’s plea hearing in order to permit effective appellate review. See State v. Williams,
3. Defendant’s Absence at the Reconstruction Hearing
{57} Defendant notes that he was not present at the reconstruction hearing, and he argues that his absence violated his due process rights. Defendant relies on the federal constitution, as interpreted by federal courts, and makes no arguments regarding our constitution.
{58} As described in the above sections of my dissent, Defendant pleaded guilty to the 1993 kidnapping, rape, and murder of a twelve-year-old child in 1995. The majority is remanding this case, three years after Defendant’s last reconstruction hearing, for a new reconstruction hearing on this basis, despite the rejection of this very issue by a panel of this Court in 1999. The majority’s analysis on this issue consists of two paragraphs containing three out-of-state cases which are not on point. The majority bases its discussion on the federal constitution. See Michigan v. Long,
{59} The majority claims that “[t]he few jurisdictions that have addressed this issue have resolved it with such clarity and resolve as to make it seem irrefutable.” Majority opinion, ¶ 15. The majority is mistaken. There is clear, decisive, and authoritative precedent that irrefutably establishes that Defendant had no right to be present at the reconstruction hearing. On point authority
{60} The United States Supreme Court, in a death penalty case, has squarely addressed the due process requirements for a record reconstruction and has held that an “ex parte settlement of [a] state court record violate[s] [a defendant’s] constitutional right to procedural due process” because the defendant has a right “to be represented throughout those proceedings either in person or by counsel.” Chessman v. Teets,
{61} The majority mischaraeterizes the facts in Chessman as “a defendant, who had personally submitted some 200 corrections to an existing transcript, to be represented at a proceeding to determine the accuracy of that transcript.” Majority opinion, n. 3. The majority distinguishes Chessman by stating that the transcript in the present case is missing-while Chessman involved “an existing one.” Id. An unavailable record includes both missing and incomplete records. Under Rule 12-211(H), “if a transcript of proceedings is unavailable or inaudible, the appellant shall prepare a statement of the evidence or proceedings from the best available means.... [T]he district court shall settle and approve the transcript of proceedings.” (Emphasis added). In Chessman, contrary to the majority’s description, there was not an existing transcript prior to the reconstruction. Instead,
the official court reporter of the trial proceedings suddenly died, having at that time completed the dictation into a recording machine of what later turned out to be 646 out of 1810 pages of the trial transcript. Following the denial of the petitioner’s motion in the Superior Court for a new trial, there ensued a preparation and settlement of the trial transcript constituting the appellate record upon which the California Supreme Court subsequently heard petitioner’s appeal. It is the circumstances under which this transcript was prepared and settled that give rise to the issue now confronting us.
Chessman,
{63} Without citation to a specific page, the majority states that the Supreme Court “limit[ed] itself to the facts” in Chessman. Majority opinion, n. 3. Nowhere in Chessman does the Court limit itself to its facts. The Court determined that the defendant “was entitled to be represented throughout [the reconstruction] proceedings either in person or by counsel.” Chessman,
{64} Finally, regarding Chessman, the majority states thаt “the Supreme Court’s holding that the ex parte settlement of the transcript violated Chessman’s due process rights simply does not bar this Court from requiring Defendant’s presence at the reconstruction hearing that [it] is ordering.” Majority opinion, n. 3. The majority bases its holding on the Due Process Clause of the federal Constitution. See Majority opinion, ¶ 14. The United States Supreme Court is the ultimate authority in the interpretation of the United States Constitution. Oregon v. Hass,
{65} In a situation nearly identical to the present case, the Supreme Court of North Carolina, like the Supreme Court in Chessman, rejected a defendant’s claim in a death penalty case that the defendant’s absence from a reconstruction hearing violated his due process rights.
Under Rule 11(c) of the North Carolina Rules of Appellate Procedure, if the parties are unable to agree on the record on* appeal, it becomes the duty of the trial judge to settle the record. In the instant case, the parties were unable to agree on the record on appeal, and the trial judge conducted a hearing in open court upon the record with defense counsel and the prosecutor present. Over defendant’s objection, the court heard testimony from Deputy Clerk Helen Sewell regarding the method and manner by which the jurors in this case were sworn by her prior to defendant’s case being called for trial. Defense counsel objected on the basis that defendant was not present. We find no error. First, defendant’s presence is not required at a hearing to settle the record on appeal. Second, defendant has failed to show how he was prejudiced by not receiving advance notice, since his counsel was present and fully examined Ms. Sewell and could have, but did not during the course of the healing, ask her to find and bring any necessary documents to the courtroom. Furthermore, defendаnt has not argued that he was prevented from presenting evidence at the hearing.
State v. McNeill,
{66} While dismissing Chessman in a footnote, the majority places great emphasis on questionable authority from New York’s intermediate appellate court to support its position. The facts in People v. Braithwaite,
{67} As additional authority supporting the proposition that Defendant’s presence was required at the reconstruction hearing, the majority relies on State v. Casimono,
The procedure so thoughtfully crafted and implemented by [the judge] was manifestly designed to achieve [the] goal [of ensuring a reasonably accurate and complete record]. The extensive participation of [the prosecutor] and [defense counsel] was fully in keeping with their obligations as officers of the court as well as trial advocates. The reconstructed record before us, as the product of the three participants’!, the trial judge, the prosecutor, and defense counsel,] substantial effort and meticulous attention, bears every earmark of one that is as accurate and complete as circumstances permitted. In the absence of any argument that the reconstruction or any portion of it is not a reasonably accurate and complete portrayal of what occurred at trial, we conclude that the due process interests of the parties have been satisfied.
{68} Cole is simply inapposite on this point. In that case, which involved a missing transcript for an entire trial, the trial court did not even conduct a reconstruction hearing. Cole,
{69} From this review of Braithwaite, Casimono, and Cole, I believe that the majority’s position that Defendant had a right to be present at the reconstruction hearing is unsupported and far from irrefutable, especially when this authority is considered in context with Chessman and McNeill. The absence of support for the majority’s' analysis, and the existence of binding authority from the Supreme Court and such authoritative on-point precedent to the contrary, makes it all the more troubling that the majority is willing to prolong this matter even further than it has been for a mere technical exercise that I believe will have no effect on the merits of the present appeal. Consistent with due process, Defendant has had numerous opportunities to present his version of the plea
{70} Defendant’s presence at the evidentiary hearing was not constitutionally compelled. Defendant had notice of the hearing. In addition, Defendant had an opportunity to be heard in that he had the obligation of filing a statement of evidence under Rule 12-211(H). Defendant chose not to relate his version of the plea hearing. The majority states that he “could very well have provided important information that would have aided his defense.” Majority opinion, ¶ 14. I disagree. Defendant’s right to confront the witnesses against him was not implicated by the reconstruction hearing because the prosecutors were merely attempting to recall the events at the plea hearing, not to prove Defendant’s guilt. See Quinones,
{71} The sole purpose of reconstructing a record is to permit meaningful appellate review. Defendant concedes that “[t]he purpose of keeping a record of proceedings is to give the appellate court a basis on which to evaluate events in the trial court.” The purpose of record reconstruction under Rule 12-211(H) is not to adjudicate a defendant’s guilt or to impose a sentence. Indeed, the need for a record reconstruction presupposes that a defendant has been adjudged guilty of the crime at issue and is appealing the conviction. As described by the Supreme Court, the settlement of a record is a “necessary and integral part” of an appeal. Chessman,
{72} The majority’s holding in this case will significantly alter the process of record reconstruction. A typical record reconstruction under Rule 12-211(H) will take place without an evidentiary hearing. Rule 12-211(H) provides that, upon discovery of an unavailable record, the appellant must submit a statement of the evidence or proceedings. The appellee then files objections or amendments to the statement, and it is the trial judge’s responsibility to settle the record from these documentary submissions. In this case, the State could have permissibly submitted its version of the plea hearing in
{73} The reconstruction hearing fully complied with the dictates of fundamental fairness without necessitating Defendant’s presence. In sum, Defendant’s presence is not required because his interests are adequately represented by counsel, he has a full and fair opportunity to present his version of events in the statement of evidence or through the testimony of his trial counsel, and the proceeding in no way affects his status in terms of his guilt or innocence or his sentence. “Nowhere in the decisions of this court is there a dictum, and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow.” Snyder,
4. The Majority’s New Rule Regarding the Judge Presiding Over the Reconstruction Hearing
{74} Without any authority or much discussion, the majority summarily “direct[s] that a judge other than the original trial judge preside over the new reconstruction hearing.” Majority opinion, ¶ 16. Courts have uniformly held that the presiding trial judge must settle the record and can rely on his or her own recollection. See, e.g., United States v. Kenney,
[I]f the trial court is not satisfied that the agreed upon statement is accurate or as complete as possible, the court should take appropriate measures to modify it. In accomplishing these tasks, the trial court may rely on its own recollection or notes from trial or may conduct hearings and consult with counsel and other sources.
Cole,
{75} Courts have also uniformly rejected the notion that a judge presiding over a reconstruction hearing is a witness in the case and, thus, have held that a trial judge need not recuse at a record reconstruction hearing. “In a hearing to reconstruct and settle the record of a trial court proceeding, as the final arbiter of the record the Trial Judge is not, in constitutional terms, a witness, but rather the official who certifies to the appellate court, if he or she can, what originally took place below.” People v. Alomar,
{76} The purpose of a record reconstruction hearing is to produce an accurate and complete appellate record. I believe that requiring that the trial judge, the neutral authority who is in the best position to settle the record, be reduced to the status of a witness frustrates the very purpose of record reconstruction. Under Rule 12-211(H), the district court must settle the record because of its involvement in and knowledge of the original proceeding; there is no suggestion in the rule that the trial judge should be prevented from presiding over the proceeding. See In re Jeff M.,
B. Adequacy of the Record to Review Defendant’s Claims
{77} In Boykin v. Alabama,
{78} Defendant contends that the State is unable to make an affirmative showing that his plea was knowing and voluntary in accordance with Boykin because of the missing transcript of the plea hearing. I disagree. First, Defendant improperly places the burden on the State to demonstrate the validity of the plea. As explained above, it is Defendant’s burden to demonstrate a manifest injustice in order to warrant the withdrawal of his plea. Second, I believe that the record does affirmatively show that Defendant’s plea was knowing and voluntary.
{79} Numerous courts have addressed the validity of guilty pleas in light of a missing or otherwise unavailable record. For example, in Quinones,
{80} The court’s analysis in Quinones is supported by numerous decisions from other state and federal courts. See, e.g., United States v. Buckles,
{81} In Joe v. State,
if the mechanical failure of in-court recording equipment is ... to represent automatic grounds for withdrawal of a plea, the continuing validity of every conviction which rests upon a plea will hereafter depend upon grounds which are irrelevant to the propriety or the fairness of the proceedings which led to that plea. Instead, the validity of convictions would rest upon such factors as the whim of nature, the mechanical capability of the court system’s recording devices, the human fallibility of in-court deputy clerks in operating recordingdevices, or the clerical abilities of the trial court clerk’s staff.... The absurdity of appellant’s position ... is underscored by the fact that a major fire in the Anchorage courthouse could vitiate the majority of convictions which have occurred in the Third Judicial District under the rule appellant espouses.
Id. at 513 (omissions in original). The court also affirmed the lower court’s determination that the testimony from the evidentiary hearing sufficiently supported the validity of the plea. Id. at 514.
{82} Similarly, in State v. Hall,
wholly unrealistic to determine that the loss of the actual record of proceedings should require the vacation of a guilty plea even where the State has established by other evidence a reasonably accurate account of what took place. Such a record is not a ‘silent record’ even though it speaks with less authority than the verbatim record of the proceedings----
Id.
{83} This case does not involve a silent record. Under Boykin, there is no constitutional requirement of a verbatim transcript of a plea hearing. E.g., United States ex rel. Grundset v. Franzen,
{84} In the present case, there is ample evidence to comply with Boykin’s requirement of an affirmative showing that Defendant’s guilty plea was intelligent, knowing, and voluntary. First, the record contains the plea agreement, which is signed by Defendant, his attorneys, the prosecutor, and the judge. The plea agreement lists the charges to which Defendant pleaded guilty and the constitutional rights he waived by entering his plea. Second, the record contains the transcript of the reconstruction hearing and the trial court’s findings and conclusions. The trial court found that Defendant was advised of his constitutional rights at the plea hearing, understood those rights, and knowingly and intelligently waived them. Because it is the trial court’s duty under Rule 12-211(H) to settle the record, the trial court’s factual findings as to what occurred at the plea hearing are reviewed only to determine whether they were intentionally falsified by the judge or are unsupported by substantial evidence. See United States v. Garcia,
{85} The trial court’s findings are clearly supported by the testimony of the prosecutors in this case, both of whom testified that they specifically remembered the plea hearing in this case due to the gravity of the charges. The prosecutors testified that there was no question that Defendant understood the charges, that the facts that would have been рroven at trial were read aloud, and that the trial judge engaged in a personal colloquy with Defendant, advising him of his rights and ensuring that he understood the rights he was waiving. Both prosecutors noted that neither of Defendant’s attorneys who were present at the plea hearing objected at any stage of the hearing. The trial judge also noted that he specifically remembered going over his standard form of questions with Defendant. This standard form of questions was made a part of the record and provides further evidence that Defendant’s plea was knowing and voluntary. See Quinones,
{86} Defendant also appears to raise, related to the missing transcript, the argument that the trial court failed to comply with Rule 5-303(G), which requires the district court to make a “verbatim record of the proceedings” when initially taking a plea that “shall include, without limitation, the court’s advice to the defendant, the inquiry into the voluntariness of the plea including any plea agreement, and the inquiry into the accuracy of a guilty plea.” Defendant relies on Garcia,
{87} In this case, as is clear from the reconstruction hearing, the trial court complied with Rule 5-303 by advising Defendant of the nature of the charges, the facts which the State intended to prove, and the constitutional rights which Defendant was waiving. Additionally, the trial court complied with Rule 5-303(G) during the original plea hearing by making a verbatim transcript of that hearing. The fact that the transcript was later lost or misplaced did not affect Defendant’s ability to understand his guilty plea and. its consequences at the time he pleaded guilty, and as discussed above, does not prevent this Court from ascertaining that Defendant’s guilty plea met all constitutional requirements. Moreover, Defendant does not allege that the trial court failed to comply with Rule 5-303 in any specific way, such as by failing to advise him of certain requisite constitutional rights. Cf. Buckles,
{88} I conclude that there is an adequate record to review the plea. Based on the authority reviewed above and the evidence in the record, including the plea agreement and the reconstruction hearing, I conclude that Defendant’s guilty plea was intelligent, knowing, and voluntary. It is noteworthy that Defendant simply argues that the State can no longer prove that he voluntarily entered into the plea; he does not directly contend that he entered his plea involuntarily or unknowingly. Defendant has failed to establish a miscarriage of justice or manifest injustice necessary to warrant withdrawal of the plea. I would therefore affirm Defendant’s convictions.
III. Defendant’s Sentence
A. Defendant’s Waiver of the Right to a Sentencing Jury
{89} Defendant contends that his waiver of a jury at sentencing was not intelligent and voluntary because the trial court failed to advise him that a jury verdict on the death penalty must be unanimous. Defendant claims that his waiver is therefore in violation of “the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and Article II Section 18 of the Constitution of New Mexico.” Defendant provides this Court with no authority and little argument on this issue. Defendant, on appeal, does not assert that our New Mexico Constitution’s provisions addressing the right to a jury during trial provide greater protection than the federal counterpart. The majority agrees with Defendant’s unanimity argument but relies on a different constitutional provision than Defendant, as well as on authority from other jurisdictions. Majority opinion, ¶ 18. I respectfully disagree. I believe the majority’s holding on this issue is advisory and premature. Even if the majority’s holding were appropriate at this juncture, I believe that it is founded upon an erroneous legal analysis. I believe that Defendant has no constitutional right to advice on the requirement of unanimity under either the federal Constitution or the New Mexico Constitution and that it was permissible for the judge to preside over the sentencing proceeding based on Defendant’s failure to demand a jury at sentencing and express waiver of a sentencing jury.
1. Advisory Opinions and Judicial Economy
{90} I believe it is premature for the majority even to address the issue of unanimity or any other sentencing issuе in its present opinion. The majority is remanding this case back to the trial court in order to reconstruct the plea hearing, a second time, in Defendant’s presence. Section 31-20A-4(A) requires this Court to automatically review a capital defendant’s conviction and sentence. Thus, following Defendant’s new reconstruction hearing, we must, in accordance with the majority opinion, automatically review Defendant’s conviction. Until this Court affirms Defendant’s conviction, it is unnecessary to address any issues regarding the death sentence. See State v. Cheshire,
2. The Absence of a Federal Constitutional Right to a Sentencing Jury
{91} Unlike the right to a jury trial on the issue of guilt or innocence, the United States Supreme Court has directly and explicitly held that there is no constitutional right to a jury at sentencing in capital cases. Spaziano v. Florida,
In light of the facts that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.
Id. at 464.
{92} Presumably because there is clearly no federal constitutional right to a jury at sentencing, the majority instead relies on the New Mexico Constitution. There are two problems with the majority’s reliance on Article II, Section 12. First, an argument based on Article II, Section 12 was neither preserved by Defendant in the trial court nor raised by Defendant on appeal, and our precedent dictates that this Court will not consider a state constitutional argument under these circumstances. Second, I believe that it is without question that Article II, Section 12 does not contain a right to a jury at sentencing.
3. The Majority’s Violation of Gomez
{93} The majority’s sole reliance on our Constitution for the present case is in contravention of our precedent. In State v. Gomez,
4. The Right to a Jury Under Article II, Section 12
{94} Relying on Article II, Section 12 of the New Mexico Constitution, the majority concludes that “[bjecause the constitutional right to a jury predated the modern-day bifurcation of death penalty cases into guilt and sentencing phases, that right necessarily applies to both.” Majority opinion, ¶ 18. Even if Defendant had properly raised a state constitutional claim, Article II, Section 12 simply does not protect the right to a jury at sentencing. This provision states, in relevant part: “The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.” N.M. Const, art. II, § 12 (emphasis added). The majority has no authority for the proposition that the right to a jury applies to the sentencing phase. The text of this provision limits its application to a trial and does not specify any right to a jury at sentencing. Moreover, the right is expressly qualified by the manner in which it was defined at time of the adoption of the Constitution. It is plain that the drafters did not intend this provision to provide a right to a jury at a capital sentencing hearing because, at the time it was adopted, a death sentence was the mandatory statutory punishment for first degree murder. 1907 N.M. Laws, ch. 36, § 3. Neither the jury nor the judge had discretion to sentence a defendant convicted of first degree murder to life imprisonment. See Territory v. Griego,
Clearly, [Article II, Section 12] continues the right to jury trial in that class of cases in which it existed either at common law or by statute at the time of the adoption of the Constitution, and in that class of cases where the right to a trial by jury existed prior to the Constitution, it cannot be denied by the legislature. And, as we view the matter, the phrase ‘as it has heretofore existed’ refers to the right to jury trial as it existed in the Territory of New Mexico at the time immediately preceding the adoption of the Constitution.
State ex rel. Bliss v. Greenwood,
5. Defendant’s Statutory Right to a Sentencing Jury
{95} Defendant does not have a constitutional right to a jury for his capital sentencing hearing under either the state or federal constitutions, much less a constitutional right to judicial advice on jury unanimity. Because there is no constitutional right to a
{96} I agree with the majority that, pursuant to statute, the sentencing jury must unanimously specify the death sentence. See Majority opinion, ¶ 18. However, this does not conclusively lead to a holding that a judge must inform defendants of a unanimity requirement. The Legislature has clearly required that in order for a defendant who pleads guilty to receive his or her statutory right to a jury at sentencing he or she must demand it. Pursuant to Section 31-20A 1(B) (1979), “[i]n the case of a plea of guilty to a capital felony, the sentencing proceeding shall be conducted as soon as practicable by the original trial judge or by a jury upon demand of a party.” (Emphasis added.) The Legislature also used this language in Section 31-20A 1(D): “upon a plea of guilty, where no jury has been demanded, the judge shall allow argument and determine the punishment to be imposed.” Again, Section 31-20A-3 directs, “in cases involving a plea of guilty, where no jury has been demanded, the judge shall determine and impose the sentence.” (Emphasis added). The Legislature has clearly indicated, with this plain and unambiguous language, that if Defendant wished to be sentenced by a jury, he had the burden to demand it. Instead, Defendant did not demand a jury and, in fact, expressly waived a sentencing jury. Defendant chose to be sentenced by a judge. If Defendant bears the burden of demanding jury sentencing under the statute, then there is no support in the Capital Felony Sentencing Act for the majority’s notion that the judge inform him of a unanimity requirement in order to obtain a knowing waiver. There is a significant distinction between a right only upon demand and a right that otherwise exists until it is waived knowingly and voluntarily. See, e.g., State v. Marrujo,
{97} The majority relies on authority from other jurisdictions for its unanimity holding. The high courts of both Maryland and Pennsylvania have held that, in order for a waiver of the right to a sentencing jury to be knowing and voluntary, the trial court must advise the defendant that a jury verdict imposing the penalty of death must be unanimous. Harris v. State,
{98} Even some states which have a waiver provision do not require the trial court to advise the defendant of unanimity. In People
6. The Majority’s New Requirement
{99} Although the majority states that the trial court erred by failing to inform him of unanimity, the majority does not specify if the judge must inform the Defendant of this “right” or if Defendant’s counsel may satisfy this requirement. The majority merely concludes that “waiver of the right to be sentenced by a jury cannot be considered knowing and intelligent unless the defendant is aware of this critical aspect.” Majority opinion, ¶20. The record in this case indicates that Defendant did not demand his right to a sentencing jury as required by the Capital Felony Sentencing Act. The record does not reflect that the district court advised Defendant of the requirement of jury unanimity. However, the record also does not indicate whether or not Defendant was aware of this requirement from an alternative source. In fact, even within his briefs to this Court, Defendant never states that he did not understand the unanimity requirement. He does not contend that his attorneys did not discuss the advantages of a judge over a jury for sentencing. The majority appears to presume that Defendant did not have this information. However, as I expressed above, I believe the majority’s ruling on this issue is premature, and the ruling might change if different information is presented to this Court after remand. For this reason, I believe it would be prudent to ask either Defendant, if he takes the stand, or his trial counsel at the new reconstruction hearing if the issue of jury unanimity versus sentencing by a judge was discussed in order to resolve the majority’s concerns. Cf. Garcia,
allows a defendant to sit idly by as the court conducts a possibly deficient colloquy concerning a waiver of a jury trial and then claim error once an unfavorable verdict and sentence is imposed. The crux of the issue in question is whether appellant knew and understood [his or] her rights so that a valid waiver of those rights could occur, not whether the court informed [him or] her of those rights. Whether a trial court informs a defendant of [his or ] her rights on the record is simply one factor for consideration, not a litmus test.
O’Donnell,
{100} The Majority indicates that “[fundamental error will not be invoked when it appears that the defendant contrived a procedural default in order to benefit from its protections.” Majority opinion, ¶ 11. However, that is precisely what the majority must be allowing Defendant to do on this issue. Defendant does not contend that he did not understand the difference between one and twelve; it is possible, if not extremely likely, that he and his attorneys said nothing in the hopes of a more favorable verdict and are now simply asking the Court to conclude that a procedural defect, the trial court not informing Defendant of something of which he is already aware, invalidates the sentence. Thus, even assuming a right to advice on unanimity exists, the question in the present case is whether Defendant actually knew of the difference between sentencing by a jury and sentencing by a judge, not whether Judge Pearl himself informed Defendant of this notion. Garcia,
7. Interference with Counsel’s Advice
{101} The majority also offers no guidance or direction to the trial court as to what the advice on unanimity must encompass. The majority merely states, “As a matter of pure probability, the requirement of jury unanimity means that while a defendant who is sentenced by a judge has only one chance of avoiding the death penalty, a defendant who is sentenced by a jury has twelve.” Majority opinion, ¶ 19. The majority’s reliance on Lopez v. United States,
{102} I believe that a unanimity advice requirement that includes any mention of probabilities would infringe upon the attorney-client privilege. A defendant’s counsel might advise his or her client that a judge is preferable to a jury for sentencing as a matter of trial strategy based on the nature of the facts in the case or because of unusually complex legal issues involved in the case, but under the majority’s analysis, the court apparently
{103} For these reasons, I disagree with the majority’s ruling regarding Defendant’s sentence. If this case is ultimately remanded for a new sentencing hearing, I would remind the trial court that “[i]n cases of remand for a new sentencing proceeding, all exhibits and a transcript of all testimony and other evidence admitted in the prior trial and sentencing proceeding shall be admissible in the new sentencing proceeding....” Section 31-20A-4(E).
IV. Conclusions
{104} The existing record, including the transcript of the 1999 reconstruction hearing, provides a sufficient basis for this Court to fairly review Defendant’s guilty plea. I conclude that Defendant’s plea was knowing and voluntary. Defendant failed to demonstrate a miscarriage of justice, and I would thus affirm Defendant’s convictions.
{105} Because the majority remands for a new reconstruction hearing, I urge the district court to make every effort to comply with the time requirements in Rule 12-211(H) in order to effectuate review of Defendant’s conviction. I would urge the State to question Defendant, if he takes the stand, as well as his trial attorneys, as to the content and scope of their advice and his knowledge regarding jury unanimity, in addition to testimony regarding the trial judge’s advice at the plea hearing of the rights Defendant waived and Defendant’s awareness of the nature of the charges, the relationship of the law to the facts, and the maximum possible penalty under the plea agreement.
{106} I believe that Defendant’s convictions and sentence should be affirmed consistent with our rules, statutes, cases, and constitutions. The majority holding otherwise, I respectfully dissent.
. In fact, in relation to the first reconstruction hearing, Defendant contends on appeal that Judge Pope’s finding that the plea was knowing and voluntary was beyond the scope of the settlement of the record for appeal. Defendant states, "The purpose of Subpart H of Rule [12] 211 is to provide a procedure for reconstructing a lost or inaudible audiotape so the appellate courts can evaluate the legal significance of events below. The purpose of the rule is narrow and the procedures it outlines purely ministerial.”
. Although irrelevant, immaterial, and not necessary context to the issues the majority addresses, the majority opinion nonetheless notes that "[n]o charges were dropped, nor did Defendant receive any other considеration, in exchange for his plea.” Majority opinion, II2.
. I emphatically reject Defendant’s arguments regarding the victim as a "willing participant in the defendant’s conduct" and repeated implications that the victim had consensual intercourse with him. Even if the child voluntarily got into the car with her attackers, the record clearly establishes by uncontested evidence that she attempted to escape by running away, that Defendant, Aguilar, and Jaramillo forcibly raped the twelve-year-old child, they kidnapped her, and she did nothing to "participate" in her horrific murder. Additionally, Defendant pleaded guilty to criminal sexual penetration in the first degree. Under NMSA 1978, § 30-9-11(C)(1) (1993, prior to 1995 & 2001 amendments), "all sexual penetration perpetrated ... on a child under thirteen years of age” is criminal sexual penetration in the first degree, meaning that the child was incapable of consenting. I remind appellate counsel of the duty of candor toward this Court. Rule 16-303 NMRA 2002 ("A lawyer shall not knowingly ... malte a false statement of material fact or law to a tribunal.”).
. Pursuant to NMSA 1978, § 30-2-1 (1980, prior to 1994 amendment) (murder in the first degree), Section 30-9-11(C) (criminal sexual penetration in the first degree), NMSA 1978, § 30-28-2 (1979) (conspiracy), NMSA 1978, § 30-22-5 (1963) (tampering with evidence), and NMSA 1978, § 30-4-1 (1973, prior to 1995 amendment) (kidnapping).
. Although Defendant cites Rule 5-304, there is nothing in this rule that supports his claim.
. Because an assertion of innocence, or lack thereof, is relevant to the question of whether a defendant should be allowed to withdraw a plea, the majority is incorrect in asserting that the facts of this case are irrelevant to my analysis.
. Although Defendant raised the issue of ineffective assistance of counsel in his docketing statement, he did not assert this claim in his brief in chief. This claim is thus abandoned. See Clark,
. Defendant also asserts that because he was not present, his appellate attorneys were unable to make a decision whether or not to call the trial attorneys to testify, raising an attorney-client privilege. Any testimony by Defendant’s trial attorneys regarding the proceedings occurring in open court during his plea hearing do not implicate an attorney-client privilege because it does not involve a confidential communication. Rule 11-503 NMRA 2002. This argument is therefore meritless.
. The majority’s reference to Rule 5-612(A) NMRA 2002 is based solely on the rule’s similarity to the constitutional standard articulated in United States v. Gagnon,
. Several states continue the practice of having a judge, not a jury, impose a death sentence. Ariz.Rev.Stat. § 13-703.02 (Supp.2001); Idaho Code § 19-2515 (Supp.2001); Mont.Code Ann. § 46-18-301 (2001). Some states even allow a judge to override a sentence of life, recommended by a jury, with a sentence of death. E.g., Ala.Code § 13A-5-46 to -47 (1994) (designating the jury’s sentence as advisory).
. There is, by comparison, a constitutional right to a jury trial on the issue of guilt or innocence in all cases except petty misdemeanors, see Lewis v. United States,
. It is noteworthy that none of these states have held that there is a constitutional right to a jury at sentencing. See, e.g., People v. Erickson,
. For example, the defendant in Lopez was convicted of assaulting her supervisor, and the case thus did not involve a sentencing jury. It concerned only advice on unanimity for purposes of waiving the constitutional right to a trial by jury. In addition, the court's requirement of unanimity advice in Lopez was not based on constitutional requirements. Instead, the court determined that the defendant may not have understood the difference between a jury trial and a bench trial based on the specific facts in the case, including the defendant being from a foreign country without a jury system, not having any prior contact with the criminal justice system, and not speaking English. Id. at 1147 & n. 10. The court also recognized the significance of a jury demand and distinguished an earlier case in which it upheld the waiver of a jury trial even though the trial court neither advised the defendant about the requirement of unanimity nor complied with a procedural rule requiring a written waiver. Id. at 1145. The court in Lopez noted that in its earlier case the defendant had failed to demand a jury and that "the requirements for a waiver should be less exacting” when there has been no jury demand. Id. at 1145-46 & n. 9.
. People v. Sickich,