State v. Martinez

2002-NMSC-008 Mexico, of New

STATE Plaintiff-Appellee, MARTINEZ, Defendant-Appellant. Frank 23,463.

No. of New Mexico. Supreme Court March Defender, Subin,

Phyllis H. Chief Public Buckels, Jeffrey Defend- J. Assistant Public NM, er, Albuquerque, Appellant. for General, Madrid, Attorney Patricia A. Ste- Suttle, General, Attorney ven S Assistant Fe, NM, Appellee. for Santa

OPINION

FRANCHINI, Justice. guilty pleaded Frank Martinez and, Crystal following a LaPierre murder of sentencing hearing, was sentenced to capital hearing plea of his death. The and a reconstruction subsequently lost was replace that tran- conducted to was (1) error script. asserts: it was judge assigned judge other than the for a (2) plea; missing tran- accept original right script deprived Defendant of (3) review; hear- the reconstruction (4) conducted; improperly the trial ing was of his fully inform Defendant court failed to (5) by jury; right to be sentenced improperly conduct- sentencing (1) acceptance of the hold: ed. We assigned by other than (2) error; missing transcript does not appeal or deprive Defendant (3) error; constitute fundamental otherwise im- healing was conducted the reconstruction erred properly; and the trial court district, adequately advise Defendant of his the same took Defendant’s failing to by jury. Second, jury sentencing. We order a to be sentenced waiver of a hearing at which Defen- only plea hearing new reconstruction record of Defendant’s judge pre- present. who dant must be lost. After Defendant filed a motion for original plea proceeding may sided over the 30, 1997, summary on October we reversal testify a at the new reconstruction as witness demanding production an order issued of the may preside. hearing but We vacate or, alternative, tapes, requiring lost in the a that, and order assum- Defendant’s sentence hearing plea to determine whether the hear- judgment ing Defendant’s of conviction ing tapes could be reconstructed. The lost hearing, the reconstruction he stands after could not be found and a reconstruction hear- jury unanimity requirement be advised of the ing was scheduled. Over defense counsel’s determining before whether not to waive objection, the trial court conducted the re- jury sentencing. Because we hearing in construction Defendant’s absence. on the of reverse Defendant’s sentence basis At the reconstruction adequately the trial court’s failure to advise prosecutors State called the two who were by jury, him of his to be sentenced we present original plea hearing. They at the any alleged do not address additional errors. recalled the factual basis for Defendant’s plea portions Judge Pope’s colloquy I. Judge Pope produced with Defendant. plea hearing January At a held questions always sheet of that he asks when pleaded guilty August Defendant to the determining plea whether a has been entered year Crystal of twelve 1993 murder old voluntarily, knowingly, intelligently. At Disposition LaPierre. In his Plea and hearing, Judge Pope the end of the drafted a Agreement, pleaded guilty to first findings series of fact and conclusions of murder, degree degree first criminal sexual law in he which affirmed the constitutional murder, penetration, conspiracy to commit propriety original plea hearing over evidence, tampering kidnaping. with No presided. appeal, which he had On Defen- charges dropped, were nor did Defendant should, dant asserts that this Court alterna- consideration, any exchange receive other tively, plea allow Defendant to withdraw his plea. Judge for his On March guilt, vacate Defendant’s sentence and re- sentencing hearing Martin Pearl conducted resentencing, impose mand for a life sen- testimony at which he heard from a co-defen- below, tence. For reasons outlined we do dant, Aguilar. John Paul Based on Mr. plea. not allow Defendant to withdraw his Aguilar’s par- account of Defendant’s violent However, in response arising to errors from crime, ticipation Judge in this Pearl deter- the reconstruction and Defendant’s aggravating mined that three circumstances jury sentencing, waiver of we order a new were and sentenced Defendant to be and vacate Defen- murder, grim executed. The details of this dant’s sentence. crucial to the however determination of De- sentence, fendant’s do not inform the narrow II. THE TAKING OF THE PLEA issue that appeal: we now address on propriety procedures afforded Defen- Judge assigned Pearl was the dant.1 Apparently, district in this matter. surrounding parties requested The circumstances Defen- setting one for a have, plea unfortunately, punctu- change plea Judge dant’s been while Pearl was on by procedural irregularities. ated and clerical Judge Pope vacation and took First, although Judge assigned Judge Pearl was Misconstruing Pearl’s stead. court, Judge Pope, case in procedure, district John of our rules of criminal Moreover, legal process 1. Neither is the dissent’s account of the facts of afforded Defendant. any this murder material to plea, the issues ad- due to the loss of the we underlying plea. dressed therein. Since this Court does not ad- have no record of the facts claims, any evidentiary gruesome unwilling proclaim dress We de- are the co-defendant’s analysis allegations tails of this crime are irrelevant to our the "facts” of this case. (D) 5-304(C), court or within NMRA argues that (30) days the notice of thirty after service of assigned anyone but precludes assignment, whichever is general calendar Accordingly, Defen- taking plea. Here, pre Defendant has failed to earlier.” Judge Pope, it was error for claims that dant statement, notice indicat pare such a and his Pearl, preside at the Judge rather than inability to do so missed the relevant (D) (C) and do afford Sections By by nearly year and a half. deadline reject accept or discretion to the trial court 12-211(H), failing comply with Rule De rales, however, pre- plea. Nothing in these any regarding the com fendant waived claim judge, with the same vested vents another Ruiz, pleteness of the record. See State standing as the jurisdiction equal 515, 521, 962, (Ct.App. N.M. 892 P.2d 967 119 accept plea in the stead judge, to a assigned 1995) claim (refusing to reach defendant’s assigned assigned judge when of the erroneously transcript omitted an ob that a does Defen- unavailable. Neither hearsay jection to evidence because de support this con- provide any other for dant himself of the methods fendant “did not avail that Defendant’s therefore hold tention. We transcripts may cor by which erroneous be claim lacks merit. transcripts may ... rected or unavailable 12-211(H) 2002]”); recreated, [NMRA [Rule] TRANSCRIPT III. THE MISSING Servs., Agora Syndicate, Inc. v. G & G cf. appeal initial was dock After the 2000-NMCA-003, ¶17, 434, Inc., 1996, 5, origi February on eted appel (declining P.2d 751 to reach the 993 sought and received appellate counsel nal jury were im claim that instructions lant’s filing of the Brief extensions for the several proper appellant had failed to because 15,1996, granted we November Chief. On transcript of the supplement or recreate the withdrawal of Defen a motion to allow instructions). jury indecipherable otherwise attorney and the original appellate dant’s reviewing now address our standard We new attor entry of new counsel. Defendant’s when the proeedurally deficient claim such transcript of the ney that the noticed to death. defendant has been sentenced ap absent from the record tran peal. attempting to locate the After A. of Review Standard an affidavit script, defense counsel obtained penalty cases are different Death confirming that the the court monitor from v. North non-capital cases. Woodson from missing. De tapes were 305, 2978, Carolina, 280, 49 96 S.Ct. 428 U.S. prosecutors and counsel then met with fense (1976) (plurality opinion) L.Ed.2d 944 a record of the attempted to reconstruct (“Death, life finality, more from in its differs 14, 1997, after it be October On 100-year prison term imprisonment than a apparent parties that the two could came two.”). year only a or from one of differs record, counsel filed defense reconstruct total penalty unique “is its The death with the district court. notice to that effect rejection irrevocability. unique in its It is Moore, 412, N.M. Citing State v. 87 pur- as a basic of the convict rehabilitation now (Ct.App.1975), 1124 unique, 534 P.2d justice. And it is pose of criminal missing transcriрt deprives that the claims of all that finally, in its absolute renunciation humanity.” concept him of his constitutional in our is embodied 238, 306, plea. of his 92 requires Georgia, the reversal Furman v. 408 U.S. (1972) failed, however, pro- (Stewart, comply 2726, with the J. has 33 L.Ed.2d 346 S.Ct. extraordinary predicate penalty a claim. When a concurring). cedural to such scrutiny inaudible of its transcript proceedings heightened is either death demands 31-20A-4(A) 12-211(H) 1978, unavailable, § NMRA 2002 imposition. See NMSA or (1979) automatically appellant “prepare (requiring a state- this court requires that the conviction and capital defendant’s review a ment of the evidence 2000-NMSC-002, Allen, sentence); means, including appel- best available (1999) ¶ (15) (ap- P.2d 728 N.M. 994 ... fifteen within recollection[ ] lant’s scrutiny ‘the degree that reflects plying “a taped days filing after the non-capital death from all other qualitative difference of the same error case. In a ”) punishments.’ (quoting v. Ra- capital legal represents defense often California mos, 103 S.Ct. only lawful mechanism which defen (1983)); Tansy, L.Ed.2d Clark may preserve Any dant his or her life. error 486, 490, 882 P.2d N.M. unfairly that encumbers that mechanism deb (“[T]his indeed Court believes death life, magni ilitates the defendant’s claim to from other and thus re- different sanctions execution, fies the risk of an erroneous scrutiny”). quires greater necessarily constitutes a circumstance that “implicate[s] “shock[s] the conscience” and Despite the inherent difference system fundamental unfairness within the cases, capital non-capital between we judicial integrity that would undermine if left subject procedurally deficient claims of Cunningham, unchecked.” 2000-NMSC- defendants, capital non-capital like those of ¶ Thus, N.M. 998 P.2d 176. defendants, to fundamental error review. any impairs against error that a defense Jacobs, 2000-NMSC-026, State v. penalty, (“[Ajbsent death whether it arises from N.M. fundamen error, sentencing guilt trial, is, phase capital even in a death tal case issues Allen, law, preserved.”); properly 2000- as matter of fundamental. Such must be error ¶ 17, NMSC-002, 482, N.M. may distinguished error, 128 994 P.2d 728 be from harmless (applying which, fundamental error review to the heightened scrutiny even under the defendant); unpreserved capital claims of a cases, capital afforded will never rise to fun Clark, 288, 301, v. State 108 N.M. 772 P.2d Compare damental error. 12 (noting id. (1989) (same), 322, 335 overruled on other the doctrine of fundamental error is Henderson, grounds by v. State 109 N.M. “strictly technical, legal, never used to aid or (1990). 655, 789 P.2d 603 Fundamental error claims”) (quoting unsubstantial v. State Gar review differs from review for reversible er cia, 414, 421, 1012, 19 N.M. 143 P. 1014-15 scrutiny ror the level of each standard (1914)) Zamora, 470, with State v. 91 N.M. given affords a claim of error. v. State Cun 474, 1355, 1359 (defin (Ct.App.1978) 575 P.2d 2000-NMSC-009, ¶21, ningham, 128 N.M. ing harmless error as “error which is trivial 711, Cunningham, 998 P.2d 176. Under fun merely or formal or academic and was not only damental error will be found when there prejudiсial rights to the substantial of the exist “circumstances that ‘shock the con it, party assigning way and in no affected the implicate science’ or a fundamental unfair case”) final (quoting outcome of the v. system ness within the that would undermine Johnson, 553, Wash.App. 205, 1 463 P.2d 206 judicial integrity if left Id. Fun unchecked.” State, (Wash.Ct.App.1969)). But see Snow v. damental error review describes our affirma 472, (Miss.2001) (“Under 800 So.2d duty injustice guard against despite tive [heightened scrutiny capital convictions procedural deficiency particular sentences], may what be harmless error Clark, 297, claim. 108 N.M. at 772 P.2d at in a case with less at stake becomes revers (holding that fundamental error review death.”). penalty ible error when the applied prevent should be miscarriage “to justice”); Osborne, 654, State v. holding that errors which (1991) (same). 662, 624, 808 P.2d impair penalty a defendant’s death defense fundamental, per join are gravity Because se we number jurisdictions irrevocability sentence, of the death that have and the demonstrated similar injustice grave cases, accompany capital that would an intolerance for error in er even execution, capital roneous error in procedurally case is when the claim defendant’s likely more emphasize, however, rise error than fundamental deficient.2 We that our See, Hamilton, 127, 671, e.g., ("[I]n State v. (Ky.1984) 478 So.2d 667 S.W.2d a death (La. ("In 1985) cases, penalty n. 7 every prejudicial death case error must be con error, sidered, assignments despite objection court has reviewed or whether not was made Holman, court.”); contemporaneous objection, People absence of in the trial 103 Ill.2d order to determine 'rendered] whether the error 82 Ill.Dec. N.E.2d ”); Commonwealth, ("[Bjecause qualitative result unreliable.’ Ice v. difference between provide capital not record will Defendant a error cases does structed intolerance for Clark, rule, any potential transcript upon which to base articulated in diminish the appeal, that his not been we hold defense has N.M. at that fundamen- impaired, and that the loss of the apply when the defendant tal error does note, harmless error. do howev- remains We upon creates which or she bases the error he er, Osborne, if who conducts the new But see 111 N.M. at claim. that re- reconstruction determines (recognizing re- 808 P.2d at 632 that mere unreliable, impossible De- construction is for, in, sponsibility complicity an error original plea vacated and fendant’s must be for the does not constitute “creation” of error re-arraigned. he must be purposes analysis). of fundamental error Fundamental error will not be invoked when IV. DEFENDANT’S ABSENCE FROM appears the defendant contrived a HEAR- THE RECONSTRUCTION procedural default order to benefit ING protections. principles its With these mind, we review Defendant’s claim for funda- that his ab asserts mental error. from the violat sence ed process his due at a proceeding Missing presence “whenever his has Transcript B. Whether the Con- substantial, relation, reasonably ful to the stitutes Fundamental Error opportunity against the ness of his to defend Clearly, the the tran loss of charge.” Gagnon, United States 470 U.S. script plea hearing error. constituted L.Ed.2d 486 105 S.Ct. attempts The State to blame Defendant for curiam) (1985) (per v. Mas (quoting Snyder by observing appellants this error nor sachusetts, 97, 105-06, 54 S.Ct. mally furnishing of carry the burden (1934)). keeping Gag- 78 L.Ed. 674 In a lower transcript court with of the 5-612(A) non, Rule 2002 demands NMRA 12-211(E) proceeding. court See Rule present arraign be that a defendant “at the NMRA 2002. While this observation does ment, every stage plea, at the time of the rule, general clearly reflect it not does including of impanelling the trial situation, in which contemplate the and the jury and the return the verdict avail trial court never made any sentence, imposition except as other any case, purposes able to Defendant. In not provided this rule.” We are wise our analysis, fundamental error Defendant the fact concerned with that a reconstruction Clark, did error. 108 not create this Cf. category hearing neatly fit does not into the 297, N.M. at 772 P.2d at 331. “stage trial.” We ordered develop hearing in order to Although reject, for rea we we a fac evidence from which could restore below, sons articulated the reconstruction plea hearing. account of the As tual hearing already conducted in this we subject could hearing, are nevertheless confident that a new recon very provided informa important well have hearing missing struction will restore the tion that would have aided his defense. hearing transcript. will neutralize Such any prejudice as a jurisdictions suffered have ad The few Moore, missing transcript. result of the See with such dressed this issue have resolved (considering 87 N.M. at 534 P.2d at irre clarity 1125 and resolve as make it seem to Braithwaite, whether a substitute or alternative form of In People futable. v. determining (N.Y.App.Div attainable in record is A.D.2d 593 N.Y.S.2d 464 right .1993), whether had the court a reconstruction the defendant’s to reviewed replace missing rec- impaired). newly hearing Because recon- to been this conducted (“The position punishment death forms of ... this waiver rule cannot be exalted to a and other pen- court address lofty require has elected to errors in death to to blind itself so alty might have decision cases which affected the allowing propriety issue-the the state the real sentencing jury.”); v. Commonwealth citizen.”). illegal to conduct execution McKenna, (1978) 476 Pa. 383 A.2d remand, Upon suppression hearing. sentencing by jury. the court and Al- ord of had conducted the reconstruc though depends the trial court Defendant’s conviction still absence, hearing “in tion defendant’s on the outcome of the reconstruction any now, that defendant effec without indication sentencing we address his claim in the tively right present.” In waived his Id. judicial economy, interest of and in order to held, response, the court and the con State necessity appeal. avoid the of another ceded, Garcia, that “the matter must be remanded N.M. (1996) for a reconstruction at which defen (allowing the defendant to with- dant, knowing in the absence of and volun and, purposes judi- draw his “for the waiver, tary right present.” has the to be economy,” reaching cial the issue of the va- Casimono, also State N.J.Su Id.See lidity sentence); of the defendant’s State v. (“At per. A.2d Carrasco, 1997-NMCA-123, ¶7, 124 N.M. minimum ... the defendant ‍​​​‌‌​​​‌​​​‌‌‌‌‌​‌‌‌‌​​​‌‌‌​​​‌​​​‌‌‌‌‌​‌‌​‌​‌​‍must have an (addressing 950 P.2d 293 the defendant’s opportunity to attend the [reconstruction] process though due claim even the issue had States, proceeding____”); Cole v. United 478 already process been resolved “since due [the (D.C.1984) (“We A.2d are reluctant likely following claim] is to reoccur remand error on an find harmless based account of court”). to the trial trial Because counsel appellant’s testimony appellant at trial which objection failed to tender an have would opportunity supplement has not had an preserved Defendant’s claim that trial contest.”). agree with these cases and We neglected fully inform him of his order a new reconstruction at which right jury, to be sentenced we review present.3 Defendant must be the claim for fundamental error. We also direct that a Because the constitutional to a original judge preside other than the trial jury predates modern-day bifurcation of over the new reconstruction guilt sentencing death into cases general “judge presiding rule is that the phases, right necessarily applies to both. may testify trial as a Const, II, § See N.M. art. 12. The Act witness.” Rule 11-605 NMRA 2002. confirms that a defendant has a to be rule, keeping Judge Pope with this refused to by jury. § sentenced a NMSA 31- provide his recollection of the answers to a (1979). 20A-1(B), Act, -3 the in Under order questions routinely series of that he asks impose death, to a sentencing sentence a pleading defendants. the interests fa jury “unanimously specif[y] must the sen- cilitating testimony Judge the unhindered 1978, § tence of death.” NMSA 31-20A-3 Pope, the new reconstruction must (1979). by judge. Judge be Pope conducted another may be called a at pro as witness the new pure probability, As a matter of {19} ceeding. requirement jury unanimity the means by that while a defendant who is sentenced V. WAIVER OF A JURY FOR SEN- only avoiding has one chance of the TENCING penalty, death a defendant who is sentenced Finally, See, argues by jury e.g., twelve. Lopez has {17} States, failing fully (D.C. the trial court in erred inform United 615 A.2d 1992) him of sentencing (recognizing, the difference between in the context of a crimi- disagree dealing 3. We with the dissent's conclusion that are with a reconstruction rather Teets, accuracy Chessman V. hearing, a’missing transcript 77 S.Ct. than an (1957), one, precludes holding. existing L.Ed.2d 1253 our rather than an and a defendant defendant, who, Chessman, questioned Chessman deprived any per- of a unlike Moreover, personally participation who had submitted proceeding. some 200 correc- sonal differences, existing transcript, represented to an overlooking Supreme tions to be even these proceeding accuracy at a holding parte determine of that Court's that the ex settlement of the transcript. Limiting transcript process rights itself to the facts of that violated due Chessman's case, Supreme simply requiring Court held that Chessman does not bar this Court from represented person, presence entitled to be sel, coun- Defendant's at the reconstruction hear- case, present ordering. at such a In the we that we are trial, being jury means nal tried VII. CONCLUSION jurors unanimously find that “twelve must jury sentencing Defendant’s waiver of doubt, guilt beyond reasonable whereas voluntary, knowing was not intelligent, and trial, prosecution persuade must a bench because the trial failed advise him fact, namely judge.”). only trier of one requirement jury unanimity. The ac- waiver of agree with Defendant that a We ceptance of deficient waiver constituted by jury to be sentenced cannot be fundamental error. We therefore vacate his knowing intelligent unless the considered guilty death sentence. Defendant’s aspect. is aware of this defendant critical stands, but the of that must O’Donnell, 559 Pa. See Commonwealth reconstructed accordance with the fol- (1999) (“Given A.2d (1) lowing instructions: Defendant must be unique sentencing jury plays role a hearing; new reconstruction phase capital of a seems it also judge, Judge Pope, may any colloquy preceding a trial appropriate preside testify. may over the but acceptance capital court’s defendant’s presiding will determine whether penalty-phase jury waiver to to inform affirmatively the reconstructed record dem- requirement Pennsyl defendant under original plea onstrates that the was voluntari- that a penalty-phase jury vania law render a verdict.”) (citation ly, intelligently omitted); knowingly, entered Har unanimous 5-303(F) State, accordance ris v. 295 Md. 455 A.2d NMRA 2002. (1983) (holding that did not defendant IT IS ORDERED. SO because, effectively jury sentencing waive al though jury he was unanimi informed of

ty requirement, he WE PAMELA B. MINZNER was not advised CONCUR: sentence). MAES, hung jury would mean a This life and PETRA JIMENEZ Justices. jury especially sentencing feature is an SERNA, PATRICIO M. Chief Justice piece crucial оf information for a defendant (dissenting). potential faces a who sentence of death. require failure to advise Defendant of the BACA, (dissenting). JOSEPH F. Justice jury unanimity sentencing ment of error. SERNA, (dissenting). Justice Chief fully De failure to advise pleaded Frank Martinez jury sentencing of the nature fendant of. murder, guilty degree degree first first unknowing his waiver unintel rendered penetration, conspiracy criminal sexual ligent. unknowing unintelligent His de murder, evidence, tampering commit with by judge, cision be sentenced which in to degree kidnapping and second of a twelve turn that him to enabled to sentence year girl. I old would affirm Defendant’s death, impaired against his defense sentence of death. ma- convictions and The penalty. death This error far more was otherwise; thus, jority I respectfully, holds prejudicial than the sort of harmless error agree majority’s rejec- I with the dissent. engaging overlook when a funda that we argument tion of that it Defendant’s was analysis. Cunningham, error mental See Judge Pope accept improper plea for 2000-NMSC-009, ¶12, 711, 998 assigned Pearl Judge because was P.2d We hold that the failure advise 176. agree majority’s judge. I with the con- also requirement jury una that, properly clusion reconstruct- because nimity Con constituted fundamental error. provides ed a basis for the record review sequently, we vacate sen Defendant’s death appeal, appeal has not his his been remand for a tence and to the district court However, impaired by lost I record. sentencing proceeding, pending the re new firmly believe that the current reconstructed new sult of the reconstruction Our perfectly adequate to proper, record is and is sentencing proceeding for a new ob remand arguments relating Respectfully, conviction. Defendant’s other review Defendant’s viates disagree majori- I and to his sentence. dissent presence ty’s approve transcript that Defendant’s proceed- conclusion settle and required hearing at the was reconstruction ings. Upon approval, the district court clerk majority’s premature holding and the to va- shall include the death sentence. I believe cate Defendant’s proper immediately the record and transmit my position is consistent with man- and it appellate (Emphasis to the court.” add- constitutions, by dated the federal and state ed.) jurisdiction only that the district cases, our and and our Final- statutes rules. present court has relation ly, agree majority’s I cannot with the at- pursuant remand from this Court to Rule tempt appellate to cede this Court’s review of 12-211(H), is to reconstruct the record of the conviction to the district court. Defendant’s plea hearing. hearing The reconstruction provide yet opportunity does not another majority “if for states that challenge Defendant to hearing who conducts the new reconstruction the voluntariness of impossible plea.1 Following determines reconstruction is second' reconstruction unreliable, record, original plea by must or the determination re-arraigned.” be vacated and he must be district court that the record cannot be re- ¶ Majority opinion, majority constructed, 13. The con- Defendant’s case must return to cludes, presiding judge will determine “[t]he claims, this for our review of his in- whether the reconstructed affirma- record incorrect, cluding unpreserved, argu- and tively original plea demonstrates prove ment that the State cannot that his voluntarily, knowingly, intelligently guilty plea knowing voluntary 5-303(F) entered in accordance with Rule that he should be allowed to withdraw his ¶ Majority opinion, NMRA 2002.” 21. The plea. original This Court cannot abdicate its discussion, majority authority, has no or ba- appellate jurisdiction cases, capital over as majority’s sis for this directive. The man- 31-20A-4(A) 1978, § articulated in NMSA effectively date means the district VI, Article Section of the New validity ruling court’s on the of Defendant’s Constitution, thus, Mexico the district plea following the second reconstruction plea court can neither vacate Defendant’s hearing subject will be conclusive and not conviction, nor affirm Defendant’s as direct- However, by review this it Court. is clear to majority. ed Majority opinion, See me appel- that the resolution of Defendant’s ¶¶ 13, 21. late claim a defective must be made Court, part original appel- its Background I. Facts and jurisdiction cases, capital late over rather than court in the district the course of a Kidnapping, Rape, A. Defendant’s 1993 purpose remand which has as its sole and Murder of the Victim settlement of the record on which Defen- majority states that the facts of appeal dant’s is to be decided. The district case do not inform the issue jurisdiction is without to determine addresses on and are irrelevant. Ma- voluntary. whether Defendant’s jority opinion, 2 & n. The then currently Defendant’s case is before this advances its belief that the appeal. A facts are also not Court on determines, review, material to the purposes disagree. issues address.2 I A place what review of the facts for took in which context is a stan- pleaded guilty. appellate Defendant 12- dard feature opinions, Under Rule whether 211(H) NMRA “the district court shall “grim” “gruesome,” or not the facts are as 1. Judge Pope’s finding provide procedure inaudible ment of the record for hearing, evaluate the and "The In voluntary fact, purpose Defendant contends on audiotape in relation to the legal significance was Subpart beyond so the that the appeal. reconstructing H of Rule the first reconstruction scope plea of events below. was ^[12] of the settle- appeal courts can 211 is to knowing lost or states, any sary the charges plea.” Majority opinion, dures it outlines Although majority opinion purpose context to the other were irrelevant, immaterial, consideration, of the rule is narrow and the dropped, purely issues nonetheless notes that "[n]o nor did Defendant receive ministerial.” II2. the majority exchange and not neces- addresses, for his proce- Further, Id. majority. night August characterized the On the Defendant, Aguilar, John Paul and prece- review under our Ronnie fundamental error child, twelve-year-old Jaramillo drove a requires analysis of the defendant’s dent acquaintance Aguilar, to a secluded area innocence, guilt requires which in turn Taylor, Grants, on Mount near New Mexico. discussion of the evidence the case. More- they way mountain, up As made their the over, below, explained ap- believe it is Defendant, Aguilar, stopped and Jaramillo propriate challenge to review Defendant’s gasoline. and sniffed When the three re- record, plea on the re- and the vehicle, Aguilar turned to the made unwel- plea view of a includes a review of the factual child, come sexual advances toward the and basis for the and a defendant’s assertion * * her, going Jaramillo told “We’re all to f* of, assert, or in case failure this factual you.” Jaramillo then drove up farther the innocence. The facts of case are rele- Aguilar began kissing mountain while the appeal. vant to the issues on victim. Either Defendant or Jaramillo told Aguilar pants. to take off her Aguilar When majority also states that because attempted pants, to remove the child’s the lost, plea hearing was to,” victim “didn’t want but the others told underlying “we have no record of the facts him to continue. The three continued far- plea,” majority “unwilling and the up ther the mountain to a dirt road. After proclaim allegations the co-defendant’s vehicle, exiting escape the child tried to Majority opinion, ‘facts’ of this case.” n. 1. road, by running up the dirt but Defendant Aguilar’s testimony Paul given John un- her, her, caught ran after and walked her subject oath der to cross-examination De- point, Aguilar back to the car. At that and sentencing hearing; fendant at his the record Jaramillo beat the child. plea hearing, of this unlike the Defendant threw the child onto the Thus, not lost. this Court has a record and, resistance, despite hood of the car her Apparently, these facts. because the record Defendant, pants. Aguilar, took off her lost, plea hearing will turn, each, Jaramillo forced the child to any not consider material that inis the rec- have sexual Following rapes, intercourse. ord, including plea agreement, the written Defendant, Aguilar, and Jaramillo discussed tape sentencing hearing, recorded car, the situation behind the and the three hearing. transcribed agreed men all to kill the victim in order to However, Defendant does not contest silence her. fact, by Aguilar. facts as related Defen- men three talked the child into Aguilar’s “allegations” dant recites as the car, getting Aguilar out of and Jar- evidence his brief in chief to this Court. began amillo to beat the child. Jaramillo Moreover, testimony the sworn of a forensic went back to the car to retrieve a small knife pathologist regarding physical evidence with a two-inch blade and then stabbed the Aguilar’s “allega- in this case corroborates multiple child times in the back. Jaramillo addition, tions.” In these facts are inherent- cut also the child’s throat. When this action ly plea agreement contained which is her, failed to kill tried break in the record on and were found to assault, During the child’s neck. by Judge Pope exist at the initial hear- attempted speak victim to the men. Jar- 5-304(G) see ing, 2002, by NMRA victim, strangle amillo then tried to but Judge sentencing hearing, Pearl slipped his hands into the in her wounds again by Judge Pope, beyond a reasonable throat; “grossed he out” and could not con- doubt, at the reconstruction There- strangle finally tinue to her. Defendant took fore, parties appeal recog- like both in this belt, neck, wrapped it around her nize, testimony the sworn ac- head, stepped forcing on her her face into a complice “allegation” is not a mere and can puddle of water and mud order to drown be used to articulate the facts of this case. her.3 reject arguments the defendant’s conduct" and emphatically repeated implica- regarding "willing victim as tions that the victim had consensual intercourse participant Defendant, Jaramillo, Agui- office, and After Division of the Public Defenders’ in- child, killing cluding Marc finally

lar De- Gordon and at least one succeeded other 15, 1995, attorney. January On dragged body, the victim’s with at a fendant his neck, Judge Pope, before District off John Defendant her the road and into belt around pleaded guilty murder, degree capi- to first Aguilar gasoline retrieved the the woods. possibility tal offense with the of the death car, from the and Defendant then doused her imprisonment, conspiracy or life body and set her fire. On the murder, degree commit degree first first mountains, the drive out of the three men penetration, criminal degree sexual second disposed pants of the victim’s and a shoe that kidnapping, tampering and with evidence.4 had been left in the vehicle. agreed Defendant tо allow the court to con- pathologist per- The forensic who sentencing duct a hearing. Defendant autopsy formed described condition signed plea agreement, as did his trial body. of the child’s The victim had blunt counsel, prosecutor, and the trial court. face, injuries trauma on her head and includ- indicated, by signing agree- face, forehead, lips, bruises on her and ment, plea agreement that he read the and cheek, injuries by consistent with inflicted proceeding, understood the that he discussed fists or shoes. The victim’s neck had three the case and rights his constitutional with his wound, going cuts which formed a five-inch lawyer, and that he understood that to, up through, the but not trachea and into pleading guilty, gave up right he his to a trial bones, cutting one of the and not into blood by jury, confront, cross-examine, puncture had vessels. The victim also six witnesses, compel and the attendance of and wounds her back which were inflicted right against self-incrimination. Defen- while she was alive but did not enter into the counsel, Gordon, signed dant’s Marc cavity. or abdominal chest The victim had agreement, indicating that he discussed the chest, hips, legs, abrasions on her consis- case with Defendant in detail and “advised body being dragged tent with the across an him of rights possi- his constitutional and all irregular lungs surface. The victim’s were ble defenses.” Defendant’s counsel also indi- water, silt, muddy sand, filled with indi- cated that he believed that cating that she breathed water with a lot disposition appropriate set forth was under Although dirt and other material it. all the facts of the case. of her other wounds contributed to her On March Judge District death, the official aspira- cause of death was sentencing Martin Pearl held a healing. De- tion, drowning. body The victim’s had represented by fendant was attorneys: four postmortem blistering, burns and and foren- Gordon, Jacquelyn Cooper, Marc Kari Con- activity. sic evidence indicated recent sexual verse, Defendant, Joseph Shattuck. time, second waived his to be sen- Guilty B. Defendant’s Plea and jury. Judge tenced Pearl heard evi- Sentencing Hearing argument April dence and of counsel. On represented by expe- Defendant was he sentenced Defendant to death for the attorneys rienced Penalty capital from the Death thirty-seven offense and to and one- voluntarily got with him. Even duty if child into counsel of the of candor toward this Court. attackers, clearly the car with her ("A the record lawyer Rule 16-303 NMRA 2002 shall not establishes uncontested evidence that she at- knowingly ... malte a false statement of material tempted escape by running away, that Defen- tribunal.”). fact or law to a dant, Aguilar, forcibly raped and Jaramillo child, her, twelve-year-old they kidnapped (1980, § prior 4. Pursuant to NMSA 30-2-1 nothing "participate" shе did in her horrific amendment) (murder degree), to 1994 in the first Additionally, pleaded guilty murder. 30-9-11(C) (criminal penetration Section sexual penetration degree. to criminal sexual in the first degree), § in the first NMSA 30-28-2 1978, 30-9-11(C)(1) (1993, prior § Under NMSA (1979) (conspiracy), § NMSA 30-22-5 amendments), & pen- to 1995 "all sexual evidence), (tampering with and NMSA perpetrated etration ... on a child under thir- (1973, amendment) prior § 30-4-1 to 1995 years age” penetration teen is criminal sexual (kidnapping). degree, meaning in the first that the child was incapable consenting. I remind filed Defendant remaining In November on the imprisonment {37} years half summary on the basis reversal a motion for charges. hear- absence from the reconstruction of his substantially similar to ing. His motion Appeal Defendant’s C. in his brief in argument later contained appealed to this Court Defendant regarding the issue of for this chief listing his docketing filing statement hearing. presence at the reconstruction his February 1996. In appeal on grounds for fully and the State briefed Both Defendant statement, noted Defendant docketing A three- Defendant’s motion. this issue on had charges pleaded guilty to that he Court, including myself, panel member would conduct that the trial court stipulated rejected Defen- carefully considered NMSA sentencing phase pursuant unanimously panel argument. This dant’s (1979). did not 1978, § Defendant 31-20A-3 January Defendant’s motion on denied docketing guilty plea his challenge his considers Defen- 1999. The now words, Defendant did In other statement. and, presence over three argument on dant’s relating his any issue or error not raise decision, panel years after this unanimous guilty plea. have a new recon- allowing Defendant that a state later discovered It was present. I hearing at which he is struction tapes and the audio employee lost or mislaid panel of this Court that the do not believe plea hearing, log tape of Defendant’s years ago denying Defendant’s three erred guilty and pleaded had which Defendant believe, as discussed I motion. continue jury. sentencing by a waived his below, presence was not that Defendant’s record, Defendant Upon discovering the lost My hearing. required at the reconstruction summary reversal on Octo- a motion for filed by binding precedent supported conclusion is time, two first over 1997. For the ber Court, Supreme from the United States pleaded guilty, years after he and one-half juris- other persuasive well as he should be able to argued that Defendant dictions. no the State could withdraw his because voluntary, it was longer demonstrate that Guilty Plea II. Defendant’s intelligent. knowing, and Preliminary Issues A. Guilty Challenges Reconstruction to His

D. Defendant’s 1998 Defendant’s 1. Hearing Plea guilty challenge his did not mo- denied Defendant’s This Court filed a and never plea in the trial court summary and ordered reversal

tion for thus did not pleа; he to withdraw pursuant to Rule motion the record reconstruction of guilty any argument regarding preserve Judge Pope February 12-211. On re only two issues raises Judge Pope plea. Defendant hearing. held the (1) guilty plea: garding his convictions reconstructing the record an order entered prove wheth cannot argues that the State that, beyond he finding a reason- August intelligently voluntarily, and knowingly, doubt, regard- er he instructed Defendant was able record to the lost guilty plea due rights, entered his rights, understood those ing his argues that it hearing; and he intelligently en- of the voluntarily, and knowingly, accept the Judge Pope to improper was not plea. Defendant guilty tered his assigned was not plea because he subpoe- hearing; he was present at this unpre arguments only are these judge. Not naed, requested a trans- party and neither ar served, reject second also at the his attendance port order to secure support it failed to he has gument because subpoena his trial did 12-213(A)(4) authority. See counsel, they present, his although were Allison, 2002; 2000-NMSC- NMRA as wit- not call them appellate counsel did 30, 129 141.5 N.M. and, fact, no witnesses. called nesses 5-304, supports claim. nothing this rule that Although there is Defendant cites Rule 44 Scrutiny Heightened and the Death improper sentencing

2. the risk of in capital a case”). Penalty that, asserts because of 3. New Mexico’s Established Precedent imposition penalty, death he is Regarding Fundamental Error scrutiny. majority greater entitled to The 12-216(A) Rule NMRA provides 2002 agrees argument. Majority opin- that, appealing party preserve for an ¶ that, ion, agree precedent, under our 8. review, question appeal' “it must that a greater scrutiny Defendant is entitled to re- ruling or decision the district court was garding his of death. v. sentence State fairly preclude invoked.” “This rule shall not Clark, 288, 296, 322, 108 N.M. 772 P.2d 330 considering court from ... (1989), grounds by on other overruled discretion, questions involving its ... funda- Henderson, 655, 664, v. 109 N.M. 789 P.2d error____” 12-216(B). mental “[Ab- 603, (1990), grounds 612 overruled on other error, sent pen- fundamental even a death 486, 493, Tansy, v. N.M. Clark 118 882 alty properly preserved.” case issues must be (1994). 527, However, P.2d 534 Defendant is ¶ Jacobs, 2000-NMSC-026, 12, State v. 129 scrutiny greater regarding not entitled to 448, 127; Allen, N.M. accord 2000- Mississippi, conviction. v. See Caldwell 472 ¶ NMSC-002, 17, 482, 128 N.M. 994 P.2d 728 320, 329, 2633, U.S. 105 S.Ct. 86 L.Ed.2d 231 (affirming applying a death sentence and (1985) (stating “qualitative there is a analysis unpreserved fundamental error punish difference of death all other issues). regard “With ato criminal convic- requires correspondingly ments [that] tion, the only doctrine is resorted to if the greater degree scrutiny capital sen appears defendant’s indisputable innocence tencing added)); (emphasis determination” if question guilt or [or her] is so 31-20A-4(D) § (providing that er “[n]o cf. doubtful that it would shock the conscience to sentencing proceeding ror in the shall rеsult permit Clark, the conviction to stand.” 108 capital the reversal of the conviction of a (citation 301, N.M. at 772 P.2d at 335 omit- felony”). previous penalty In our death ted). justice done, “If substantial has been cases, application this Court restricted its parties duly preserved must have taken and heightened scrutiny to the review of the sen exceptions in the lower court before we will tence, Allen, not the conviction. State v. Garcia, notice them here.” State v. 19 N.M. 2000-NMSC-002, ¶61, 482, 128 N.M. 994 414, (1914) 421-22, 1012, P. (opinion 1015 (applying heightened scrutiny P.2d 728 to a rehearing). sentence), denied,

review of the death cert. 1218, 2225, 530 U.S. majority S.Ct. 147 L.Ed.2d approval cites with our (2000). assessing “In penalty the death earlier applied cases which fundamental er- apply greater we degree must of scruti ror in a death Majority context. See ¶ ny called for opinion, majority the Constitution.” “any 9. The states that Henderson, 661, 109 N.M. at impairs 789 P.2d at 609 error against a defense (quotation quoted authority marks and penalty, omit death whether it arises from the ted). sentencing guilt trial, is, This reference was to the phase capital United Supreme interpretation law, States Court’s Majority as matter of fundamental.” Ramos, opinion, federal constitution v. purport does not California 992, 999, 103 463 U.S. S.Ct. prior precedent, L.Ed.2d to overrule our despite so (1983). requirement constitutional language, this broad this articulation must be heightened scrutiny to which we harmony referred understood in with the fundamental apply Henderson does not to the review of error review developed that this Court has conviction, only See, Jacobs, prior the sentence. See e.g., Turner cases. 2000-NMSC- ¶¶ Murray, 37-38, 12, 17, 106 S.Ct. 129 N.M. P.3d 90 L.Ed.2d 27 (affirming (concluding joinder unpreserved that an is- sue, vacating error, defendant’s ‍​​​‌‌​​​‌​​​‌‌‌‌‌​‌‌‌‌​​​‌‌‌​​​‌​​​‌‌‌‌‌​‌‌​‌​‌​‍conviction but a death reviewed for fundamental was not ¶¶ implicating misjoinder); Allen, 2000-NMSC-002, sentence on an aspects issue both (hold- special the case due to “the seriousness of 994 P.2d 728 see, miscarriage justice, evidentiary e.g., issue as well cer- United ing that an (1st Isom, States 85 F.3d Cir. categories prosecutorial misconduct in tain not,error 1996), injustice, aor manifest see State v. penalty case either death Barnett, 1998-NMCA-105, ¶26, 125 N.M. question did make “the of that the errors not 739, However, 965 P.2d 323. Defendant did that it would shock the guilt so doubtful plea move to his not withdraw the district permit conviction to stand” to the conscience court, sentencing either before or after quotation internal (quoted and proceeding. Defendant did not assert even omitted)); Cheadle, 101 N.M. marks State v. any guilty plea error with his his docket (1983) 708, (addressing 681 P.2d ing this Court. In statement with other disputed argument which the defendant an words, not, not, apparently he did and could was evidence to whether there sufficient send any guilty plea. Although find error in his jury stating and aggravating factor to the not he could have alerted triаl court of “[ojbjections jury to instructions cannot the lost record until he became aware that it appeal” raised for first time on and missing, ample opportunity was had to he objection not that “since this was raised at any error plea, alert the trial court of in his defendant], level, is pre- the trial court [the sentencing. both before and after Defendant now”). raising cluded from defendant simply attempting advantage to take alleged error must demonstrate that the record circumstance of the lost to attack his Olano, harmless. States United Cf. guilty plea despite any the lack of error with 725, 734, 113 S.Ct. plea. his (1993) (stating that L.Ed.2d 508 the defen- Mexico, if fails to error New defendant dant must show that a forfeited affect- plea a motion file to withdraw in the trial proceeding). the outcome of the ed court, plea he or cannot attack the for she Defendant’s appeal. B. Withdrawal of Plea the first time on direct See State Madrigal, 85 N.M. 513 P.2d guilty of Defendant’s Voluntariness (declining (Ct.App.1973) to review a plea appeal raised first time on claim for the above, majority discussed at- As the defendant did not understand the conse- relinquish duty tempts to to review De- our quences guilty plea acceptance); of before his guilty plea district fendant’s to the court. Hodge, 118 see also State v. N.M. No matter what district court determines (stating plea that “a regard guilty plea to his in the recon- contendere, voluntarily guilty or when nolo case must return to struction this counsel full made after advice of and with completion for review. this Court consequences, understanding waives appeal contends to Defendant on direct this objections in the prior defects Court that State cannot demonstrate operates statutory or and also as a waiver voluntary that, plea knowing his including rights, constitutional therefore, he should this be allowed Court authority, appeal”). Under this plea. his A defendant who to withdraw cannot for the first time on direct claim guilty pursuant pleads criminal offense knowing appeal plea was not or his but or to Rule 5-304 wishes withdraw his voluntary; seeking limited to he would be plea timely her must make a motion for Thus, proceedings. relief in re- collateral prove that withdrawal nec- withdrawal gardless of outcome of reconstruction Clark, injustice. essary to correct a majority, manifest this Court ordered 326; 31-20A-4(A) at P.2d 5-304 must decide whether Section commentary. appeal, creates, cases, committee On exception for death ruling requires reviews the trial court’s on a general rule and that we to this plea prior request to withdraw to sentenc- motion consider withdraw Clark, discretion, an abuse determined that plea. Even if this Court 326, Rule appropriate 772 P.2d at 5-304 claim is N.M. review Defendant’s commentary, appeal, we review a would be re- direct still committee injustice post-sentencing quired a manifest ruling on a motion for to demonstrate court’s justice in miscarriage order to withdraw dress whether Defendant has demonstrated a Thus, injustice explained miscarriage justice manifest plea, below. even plea. sufficient to withdraw his I review the though does not address the question plea of whether Defendant’s of Defendant’s voluntariness of the merits knowing voluntary by viewing time, the facts at this I believe claim this Court light in the record most favorable to must Defendant’s claim on resolve upholding because these facts were following the for the remand subjected never to the district court’s review plea. on a motion to withdraw gen- See properly preserves If a defendant Akinsola, erally United States v. 105 F.3d unknowing involuntary plea by claim of an (7th Cir.1997) (“[A] 331, 333 motion to with- filing plea, a motion to withdraw the denied, guilty plea, draw a if even is never- defendant must demonstrate a in- manifest helpful theless on because the trial justice Barnett, trial to the court. 1998- can, court will have made a record which we ¶ 26, NMCA-105, 739, 125 N.M. 965 P.2d 323 turn, review. There no is record here as (“[A] generally may defendant not withdraw [the did not defendant] seek relief guilty plea aas matter of after sen- came, instead, straight district court. He tencing proves unless the defendant that the where, bypassed our door because he necessary to withdrawal is correct a manifest judge, apply district we plain error review Clark, injustice.”); 292, accord 108 N.M. at case.”). reviewing to the In whether a defen- 326; Knerr, 133, 772 P.2d at injustice dant has shown a manifest sufficient 136, 808, (Ct.App.1968); 811 Rule 5- plea, to withdraw a a court must consider the commentary. 304 committee If the defen- following factors: whether the defendant was argument dant makes such an for the first counsel, denied the effective assistance of appeal, argument time on and such an is plea whether the was not entered or ratified court, entertained the defen- by the person defendant or a authorized to injus- dant still must demonstrate a manifest or„her behalf, do so on his and whether the plea may tice before the be vacated or with- plea involuntary, or was entered without Blackwell, E.g., drawn. United States v. 127 knowledge charge or that the sentence (10th 947, Cir.1997). F.3d A manifest Clark, actually imposed imposed. could be “ injustice in this context is ‘a defined as 326; 108 N.M. at 772 P.2d at Rule 5-304 inherently fundamental defect which results commentary. addition, committee In a court complete miscarriage justice’ in a or ‘an may consider whether the defendant has as- rudimentary omission inconsistent with the innocence, serted his or her whether ” procedure.’ fair demands of United States prejudiced State will if be the mоtion is Baker, (9th Cir.1986) 790 F.2d granted, delayed whether the defendant has States, (quoting Hill v. United filing motion, grant- and whether the 417, (1962)); S.Ct. L.Ed.2d ing of the motion would cause waste of Hoskins, accord United States v. 910 F.2d judicial Clark, resources. See 108 N.M. at (5th Cir.1990). Thus, if it proper 326; Carr, P.2d United States v. 31-20A-4(A) under Section Defen- address (10th Cir.1996). 80 F.3d unpreserved challenge guilty dant’s to his In critically important it is plea, Defendant must demonstrate a manifest that Defendant has not asserted his inno- injustice complete justice. or a miscarriage of injustice cence.6 can “There be no manifest I challenge believe that Defendant’s refusing permit a defendant to with- plea properly to his before this Court at guilty plea draw when there is no serious this time and that a second reconstruction contention that the defendant is innocent of Assuming arguendo is unwarranted. charged.” the crimes United States v. Na- 31-20A-4(A) (9th requires Cir.1998). gra, Section the review 147 F.3d Addi- claim on appeal, tionally, Defendant’s direct greatly delayed any ad- con- innocence, Because an assertion of asserting or lack is incorrect that the thereof, question is relevant to the of whether a my analysis. facts of this case are irrelevant to plea, defendant should allowed to withdraw a bring up a of burden to record sufficient guilty plea, and a withdrawal test of the long appeal,” un- delay would the issues he plea after such review of raises doubtedly prejudice upholding the State. Defendant court’s admission received inef- despite presumption also not contend he taint does confession Finally, al- of counsel.7 suppressed fective assistance “re- from another statement can- claims that the State though Defendant solving all inferences favor of the trial knowing and prove that ruling”). with this court’s accordance affirmatively 12-211(H) assert voluntary, he does not principle, ap- that an directs unknowing or invol- was either pellant prepare “shall a statement of the mind, I must untary. this context in With proceedings avail- evidence best appropriately are be- means, determine which facts including appellant’s able recol- fore for its review of this Court if a is ei- lection” claim, argument I thus first address his rule ther unavailable or inaudible. This regarding the reconstruction of the record. duty places an on the therefore affirmative part appellant attempt to cure an Hearing Reconstruction

C. appeal. record on unavailable Objection to the 1. of Defendant’s Waiver case, Defendant, upon learn- In this Completeness the Record transcript, for ing of the unavailable moved However, summary Defendant did reversal. claims that the record Defendant 12-211(H) comply by providing not with plea the was lost and cannot be proceedings. the statement of evidence or reсonstructed; thus, argues he meaningfully fact, provided In Defendant has never this that the State cannot demonstrate because or the district court with his version of voluntary, his waiver trial was transpired during plea hearing. what intelligent, to knowing, is entitled he majority agrees has that “Defendant disagree. plea. withdraw his statement, prepare such a and his failed to rec- agrees also that the loss of Defendant’s indicating inability his to do so missed notice plea. him to ord does not entitle withdraw by nearly year deadline the relevant ¶ Although 13. Defendant Majority opinion, ¶ Majority opinion, half.” 7. presumably responsible for the lost not below, record, comply not as discussed he did Although Defendant was not with or exercise the rules reconstruction had hearing, Defendant gave this Court him to recon- opportunity provide opportunity to a statement the record. struct 12-211(H). in accordance with Rule evidence Additionally, subpoenaed his trial in New Mexico Defendant It is well established hearing, attorneys the reconstruction but appellant carries of en for the burden to call them provided appellate counsel chose not suring that Court, transcript to to this complete record the stand. Even his brief with a appel does not offer an account proceedings sufficient to review the Defendant 12-211(E) (“Each appel plea allege specific any or defect lant’s claims. Rule plea. simply timely taking responsible lant for the shall be transcript to demon- filing of contends that the State is unable preparation and Wilson, voluntarily know- N.M. that Defendant proceedings.”); State v. strate (“It 793, 797, guilty De- ingly pleaded not that he did not to make a rec fendant does contend defendant’s burden sufficient rights at the appeal.”); ord v. Padil waive his constitutional for review State (Ct. la, the na- that he did understand 95 N.M. P.2d against charges him and the App.1980) (affirming second-degree murder ture of the conviction, potential penalties charges, stating that defendant’s those “[i]t is Clark, 345; Although ineffec- N.M. at P.2d at 7. Defendant raised the issue of 108 1999-NMSC-035, 3, ¶ docketing state- tive assistance of counsel in his P.2d 128 N.M. ment, did not assert this claim in his brief he Clark, claim is thus abandoned. See chief. This comply to Judge Pope failed either con- verse for a new trial missing based on testi- requirements specific require- mony stitutional appellant when the failed to avail her- 5-304(E). words, of Rule In other ments remedy providing self of the a statement attempts rely on the unavail- 10(c)); of evidence under Rule United States able as means of reversal Mills, (9th Cir.1979) 597 F.2d However, itself. because it is Defendant’s (“Appellant attempt made no to follow the attempt burden in the first instance to 10(c)____ procedures prescribed by Rule record, pre- cure an unavailаble Defendant is provided upon Since no record is which his making argument. By vented fail- evaluated, denied.”). claim can be it must be evidence, provide a statement of the party may simply [A] not seek new trial any regarding Defendant has waived claim occurring because matters in the district completeness of the record. See G & G transcript. court are not reflected Servs., Inc., Agora Syndicate, Inc. v. 2000- Rather, party attempt must at least NMCA-003, 17, 128 N.M. 993 P.2d 751 by reconstructing cure the defect the rec- (declining concerning to reach an issue 10(c). provided by ord as [Rule] certain jury propriety of civil instructions because may unavoidably cases this effort fall short does not appel “[t]he [the record reflect that precision necessary for a record sought supplement lant] or recreate the review, may amenable to and a new trial transcript pursuant record or to the avenues necessary. However, a new trial is not rules”), available to under our cert. appropriate where the lack of a record is (2000); quashed, 129 N.M. 10 P.3d 844 only charged ap- error and where the Gutierrez, State v. pellant made no effort to reconstruct (“For 1014, 1016(Ct.App.1995) purposes P.2d missing give any record nor to cause appeal, of this defense counsel should have failing. prepared a proceedings statement of recon Massillon, City 963, Herndon v. 638 F.2d structing what occurred at the bench confer (6th Cir.1981) (citation omitted); accord 12-211(H). ence. [Rule] Counsel’s failure to States, 277, Cole v. United 478 A.2d 283-84 attempt to reconstruct the record could cause (D.C.1984) (“[T]he appellant option has the impose sanctions, this Court to including re prepare either to a substitute statement or to issue....”); fusal to consider an State v. any forfeit claim that he or she has been Ruiz, 515, 521, 962, 119 N.M. 892 P.2d prejudiced by the transcript. absence of a (“Defendant (Ct.App.1995) did not avail him appellant an When refuses to make reason- by self of the methods which erroneous tran prepare 10(j) able efforts to statement from may corrected, scripts be 12- [Rule] means, the best available this court will not 211(C)(4), transcripts may or unavailable entertain a claim that the record on recreated, 12-211(H). Accordingly, [Rule] permit meaningful review.”); insufficient to issue.”); we do not reach this Ford v. Bd. cf. Bates, 84 Hawaii Comm’rs, County 118 N.M. (1997) (“[A] 54-55 duty defendant has a (1994) to P.2d (concluding that an issue reconstruct, modify, supplement the miss- appellant raised appel for which the record, ing portions of the and a failure to provide lant failed to a complete record was waived). make a attempt pre- reasonable to do so alleging cludes him or her from reversible 12-211(H) New Mexico’s Rule is de party error---- [A] is not entitled to a new 10(c) rivеd from Rule of the Federal Rules of trial, portion because of the absence aof vital Procedure, Appellate nearly and our rale is record, of the having attempted without first identical to the federal rule. Federal courts supplement to proceeding record un- 10(c) interpreting Rule have concluded that 10(c).”). der Rule appellant’s failure to file a statement of the evidence results in a waiver of the claim Defendant relies on Manlove v. Sulli- See, van, (1989) appeal. e.g., Pascouau v. 108 N.M. Martin P.2d 237 to 98-1099, Corp., missing Marietta No. claim that the pre- 185 F.3d record creates (10th Manlove, 1999 WL July sumption prejudice. at *3 Cir. 1999) (unpublished opinion) (declining to re- Court stated that “[w]hen defendant raises involving sixty days possibility general a reasonable of error of service of the rights, prosecution assignment, her] constitutional calendar [or unless otherwise or resulting presumption must rebut dered court.

prejudice beyond a reasonable doubt.” Id. at parties agreement If the cannot reach an However, 775 P.2d at 243. 12-211(1), provides under Rule 12-211 Rule possibility did not a reasonable raise of error authority for the additional of the district (dis- involving right appeal. to See id. representation court to ascertain an accurate cussing a contested detail in the trial tran- missing parties’ of the record from the state- script). His sole contention is that ab- ments. trial; sence of the record warrants a new he transcript proceedings [I]f a is unavail- any does not offer contested view of the facts ..., appellant prepare able shall plea hearing which would raise a rea- statement of the evidence or possibility point sonable of error nor does he means, from the best available including any specifics missing in the record appellant’s If recollection.... there prejudice caused otherwise to his any objections proposed are amend- Allen, 2000-NMSC-002, ¶113, appeal. Cf. thereto, objections ments or amend- 994 P.2d 728. Defendant is ments shall be submitted to the district exempted complying with the re- approval court for settlement and Within 12-211(H). quirements of Rule Based on the (15) days filing objec- fifteen after weight authority of this and the text of Rule amendments, tions or the district court 12-211(H), I conclude that Defendant waived approve shall settle and any claim that the record is insufficient proceedings. permit appellate missing review or that the 12-211(H) added). (emphasis Rule This rule infringes appeal. record on his establishes the district court’s any arising resolve conflicts from an unavail- Reconstructing Procedures Utilized able, inaudible, incomplete or otherwise rec- the Record ord. claim, Had Defendant not waived his 12-211(H) directs the district “weigh possible signifi- this Court would approve transcript to “settle and missing cance of the material to a defen- proceedings” following parties’ submis- appeal against dant’s such facts respective sion of their accounts of the proffered by mitigate the state as would hearing. Although specifi- rule does Manlove, significance.” eliminate its 108 cally provide evidentiary hearing, for an such N.M. at 775 P.2d at in 243. The State hearing appropriate way would be an case this demonstrated at the reconstruction goal obtaining effectuate the an accurate hearing that Defendant’s was not representation original proceeding. record, prejudiced by missing and the Further, 12-211(H), by providing Rule majority agrees properly that a reconstruct- “recollection,” appellant may rely con- permit meaningful appellate ed record 'will templates may testify that witnesses con- However, argues review. Defendant cerning general occurring prior events at the the trial court erred in the manner which proceeding requiring rather than a verbatim hearing. it conducted the reconstruction As proceeding. recitation of the below, discussed I conclude that the trial appellate notes that his counsel relied on hearing proper. court’s reconstruction 5-303(G) requiring Rule for a verbatim rec- Our remand order Rule referred to {54} However, ord. Defendant does not contend 12-211(1) authority as for the reconstruction that the to make a district court failed verba- hearing: 5-303(G). compliance tim record in with Rule Instead, parties may agree upon appears a statement of he to claim that Rule 5- 303(G) proceedings stipulate governs facts and record reconstruction. re- they ject purL promulgated deem the statement claim. 12- sufficient this We Rule review, poses specific procedure govern and the statement shall be 211 as the miss- ing transcripts proceedings. filed as a within or unavailable 5-303(G) apply does not to record re- 3. Defendant’s Absence at the Recon- fact, Hearing construction. it would be unreason- struction expect any participant hearing able to in a Defendant notes that he was not every be able to recall at a later time word present hearing, at the reconstruction and he proceeding uttered verbatim. As a argues that pro- his absence violated his due sense, then, matter of common Rule 12- rights. cess Defendant relies on the federal 211(H) require cannot be intended to a ver- constitution, interpreted by courts, federal prior proceeding. batim recitation Al- arguments regarding and makes no our con- though majority does not address this reject argument. stitution.8 I this issue, properly require does not a verbatim ¶ (hold- Majority opinion, recitation. See As described the above sections of ing hearing, that a reconstruction conducted my dissent, pleaded guilty to the with a new trial Defendant’s kidnapping, rape, and murder of a presence, provide would a valid substitute for twelve-year-old majority child 1995. The missing transcript). Other courts have remanding years three after interpreted appellate similar rules concern- Defendant’s last reconstruction for a transcripts testimony unavailable to allow basis, new reconstruction on this de- See, e.g., in narrative form. Commonwealth spite rejection very of this issue Quinones, 414 Mass. 608 N.E.2d panel of this majority’s 1999. The (1993) (stating 730-31 that a prop- trial court analysis para- on this issue consists of two erly “only relied on recollection of the sub- graphs containing three out-of-state cases [plea] colloquy stance of the and not the point. majority which are not on bases used”). precise words its discussion on the federal constitution. Michigan Long, See 1040- product The desired of a reconstruc- (1983).9 103 S.Ct. 77 L.Ed.2d 1201 reasonably tion repre- is a accurate sentation of the during events that majority occurred claims that few “[t]he plea hearing permit jurisdictions in order to that have addressed this issue effective review. See State v. clarity have resolved it with such and resolve Williams, 227 Conn. 629 A.2d 405- as to make it seem Majority irrefutable.” (1993). Therefore, properly the trial court opinion, 15. The is mistaken. evidentiary hearing clear, used an decisive, and the testimo- There is and authoritative ny general of witnesses’ precedent recollection of irrefutably establishes that prior proceeding appropriate as an method to Defendant had no to be at the 12-211(H). pursuant settle the record to Rule point On 8. Defendant also asserts that because he was imposed.” not at which sentence is not State v. present, appellate attorneys his Sommer, 58, were unable to 1007, make a decision whether or not to call the trial (Ct.App.1994). hearing A reconstruction is not a attorneys testify, raising attorney-client an stage meaning of the trial within the of Rule 5- privilege. Any testimony by Defendant’s trial 612(A) and guilt. has no affect on the defendant’s attorneys regarding proceedings occurring in Instead, Indeed, stage appeal. it is a in an our open during plea hearing court impli- do not permitting rule the reconstruction of a record attorney-client privilege cate an because it does Procedure, appears not in the Rules of Criminal not involve a confidential communication. Rule 5-612, Appellate as with Rule but in the Rules of argument 11-503 NMRA 2002. This is therefore Further, Procedure in Rule 12-211. meritless. represented hearing by was appellate majority’s 5-612(A) 9. The reference to Rule Massachusetts, Snyder counsel. See v. 291 U.S. solely NMRA2002 is based on the rule’s similari- 97, 107, (1934) (“The 54 S.Ct. 78 L.Ed. 674 ty to the constitutional standard articulated in underlying principle gains point precision Gagnon, United States 470 U.S. everywhere from the distinction drawn between (1985). Majority S.Ct. opinion, 84 L.Ed.2d 486 proceedings at the trial and those before and concedes, majority 14. As the Many after. motions before trial are heard in the plain application text of this rule limits its to trial absence, many defendant’s motions after tri- proceedings, and it thus does not extend ‍​​​‌‌​​​‌​​​‌‌‌‌‌​‌‌‌‌​​​‌‌‌​​​‌​​​‌‌‌‌‌​‌‌​‌​‌​‍to an (overruled prosecution appeals.”), al or in the appellate process. says reconstruction "The rule nothing grounds by Malloy post-conviction Hogan, on other hearings, about 378 U.S. such as (1964)). [a on a motion sentence]. to reconsider 2 n. 84 S.Ct. 12 L.Ed.2d 653 Court, approve Supreme [T]he as district court shall settle from the United States transcript proceedings.” (Emphasis from North Carolina and well as added). Chessman, position contrary that Defendant’s In supports Texas to the ma- presence required jority’s description, existing at the reconstruc- there was not an transcript prior tion to the reconstruction. In- stead, Court, Supreme in The United States reporter case, pro- the official court of the trial penalty squarely addressed a death has died, ceedings suddenly having at requirements process the due for record completed time the dictation into a record- parte that an reconstruction and has held “ex ing machine of what later turned out to be court record [a] violate[s] settlement of state pages 646 out of 1810 of the trial tran- right proce- defendant’s] constitutional [a script. Following peti- the denial of the process” dural due because defendant Superior tioner’s motion Court for a represented throughout has a “to be trial, preparation new there ensued a person proceedings those either in Teets, transcript settlement of the trial constitut- counsel.” Chessman v. upon record which the 1 L.Ed.2d 1253 S.Ct. added) Supreme subsequently (relying Snyder). In California Court (emphasis petitioner’s appeal. heard It is the circum- response parte to an ex settlement of a rec- transcript stances under which this in a ord a California court death prepared give and settled rise to the Supreme noted that “[i]f Court confronting deny issue now us. petitioner’s request chose to California appear propria those (footnote Chessman, 354 U.S. at 158-59 omit- persona^ it then became incumbent on the ted). Only approximately one third of the Thus, him.” appoint State to counsel for Id. existed; actually the remain- Supreme ap- Court has determined and, purposes der was untranscribed рearance hearing through at a reconstruction law, California unavailable such that a recon- requirements pro- of due counsel satisfies the struction and settlement record adequately a defendant his cess and affords Contrary n. required. See id. at 158 4. to the “day upon or her court the controversial majority’s suggestion, a record did not exist of fact and law involved the settle- issues fact, for two thirds of the trial. Chessman ment the record.” Id. at 164. This reporter’s court claimed the deceased Supreme holding is bound Court’s notes “could not be transcribed with reason- that the Fourteenth Amendment to due accuracy,” able and he submitted 200 correc- process require pres- “ does not ‘rough’ tions to the draft” of the recon- when, at the reconstruction ence transcript prepared by a structed substitute here, protected adequately his interests were reporter. parte At an court ex by counsel. the accu- the trial determined racy reporter’s tran- mischaraeterizes substitute defendant, scription, eighty facts Chessman as “a who had allowed the defendant’s corrections, personally upon 200 corrections to the record submitted some “settled existing transcript, represented petitioner’s to be at a which automatic was to be Thus, accuracy proceeding to determine the of that heard.” Id. at 160. Chessman is di- Majority rectly point reviewing transcript.” opinion, n. 3. The ma- in Defendant’s due fact, In in jority distinguishes by stating process claim. the reconstruction Chessman transcript present missing- in extensive than the case is Chessman was much more nearly existing present “an because it involved while Chessman involved one.” case transcript, pages An unavailable includes twelve hundred of a trial Id. record both miss- relatively plea hearing. 12- ing incomplete records. Under Rule rather than a short 211(H), transcript proceedings presence “if and the defendant’s issue inaudible, process, appellant participation unavailable or shall in the reconstruction then, by pro- just squarely presented prepare a statement of the evidence or as present in ceedings facts of case. from the best available means.... Chessman majority Supreme states that Defendant clarify position Court to its on this “deprived any personal participation point issue at some in the future. proceeding.” Majority opinion, in the n. 3. Chessman, Finally, regarding the ma present While was not at the re- jority states that Supreme “the Court’s hold ample opportu- construction he had ing parte that the ex settlement of the tran 12-211(H) nity present under Rule a state- script process violated rights Chessman’s due proceedings. ment of He chose not to dо so. simply does not requir bar this Court from fact, Moreover, a distinguishing this is not presence Defendant’s at the reconstruc from Chessman because the in Court hearing tion ordering.” Majority [it] having case viewed the defendant as “no opinion, n. majority 3. The holding bases its determining” in voice the settled record. on the Due Process Clause of the federal Chessman, 354 U.S. S.Ct. 1127. Majority Constitution. opinion, See contrary, To the whereas defendant in The Supreme United States Court is the day upon Chessman “never had his in court authority interpretation ultimate in the the controversial issues of fact in- and law Hass, Oregon United States Constitution. upon volved the settlement of the record 714, 719, 420 U.S. 95 S.Ct. 43 L.Ed.2d affirmed,” id., which conviction his De- (1975) (“[0]f course, may a State fully adequately fendant’s interests were impose greater ... restrictions as matter represented by appellate his counsel at the of federal law when specifically this Court reconstruction them.”); imposing refrains from Ar accord Sullivan, kansas v. 532 U.S. 121 S.Ct. specific Without citation page, to a (2001); 149 L.Ed.2d 994 Ari cf. majority Supreme states that the Court Evans, 1, 8-9, zona v. 115 S.Ct. “limit[ed] itself the facts” Chessman. 1185, 131 L.Ed.2d 34 (describing the Majority opinion, n. 3. Nowhere in Chessman Supreme Court “as final arbiter of the Unit does the limit Court itself to its facts. The ed stating States Constitution” and that state Court determined that the defendant “was courts “are not free authority from the final represented throughout entitled to be [the Court”). Supreme of this Court has in person reconstruction] either held that the Due Process Clause of the Chessman, counsel.” 354 U.S. at federal Constitution is satisfied this cir parte S.Ct. 1127. The “ex settlement of presence cumstance either the of counsel petitioner’s [the] state court record violated the defendant. procedural pro- constitutional due counsel attended the reconstruction conclusion, reaching cess.” Id. In this represented Defendant’s interests. It is Snyder, Court relied on which articulated the prerogative not the of a state court to inter Court’s presence analysis. current pret the federal Constitution a vacuum. Thus, it is clear that principles upon reinterpret This Court cannot the federal which Chessman was based are not limited to contrary constitution Supreme pre Court case, present its facts. Like the Chessman Thus, cedent. I believe that analyzed requirements of the Due Pro- Defendant, cannot hold that in addition to his cess at a hearing Clause to settle a record counsel, present must be aat due to an unavailable trial pur- hearing based on the federal Constitution. poses of an automatic in a death nearly a situation Indeed, identical to case. it seems unusual to case, Supreme Court of North on-point Supreme have such Carolina, Supreme like thе Court in Chess- relation to a federal constitutional chal- man, rejected a defendant’s claim in a lenge. death Supreme Court, believe that the if penalty case that the defendant’s presented absence with the facts would from reconstruction violated apply Chessman and hold that Defendant’s process rights. due process rights due were not violated 11(c) absence from the hearing. Under Rule of the North Carolina Perhaps majority’s interpretation Appellate Procedure, Rules if par- provide Chessman will impetus agree ties are unable to on the record on*

53 inconsistency duty or rationale and its with bind- it of the appeal, becomes in Braithwaite In the instant ing authority. opinion the record. to settle agree on parties sentences, were unable to merely consists of four contains no appeal, and the trial the record on analysis, largely relies on a concession upon hearing open in conducted a government, provides no indication of counsel and the the record with defense Chessman, whether, the de- consistent ob- prosecutor present. Over defendant’s present proceed- at fendant’s counsel was testimony jection, the court heard from ing. opinion also does not indicate Deputy regarding Helen Clerk Sewell opportunity had an whether defendant jurors in by which the method and manner proceed- a statement of evidence or submit prior sworn her to defen- this case were ings provided as was to Defendant in the being called for trial. Defense dant’s case 12-211(H). present case More- under objected that defen- counsel basis over, Braithwaite’s own authority does not present. We find no error. dant was not The Braithwaite court’s support holding. its First, presence required is not defendant’s People v. authority holding sole for its was hearing appeal. the record on at a to settle Mullen, 1, 470, 44 N.Y.2d 403 N.Y.S.2d 374 Second, how defendant has failed to show (1978), N.E.2d 369 which did not involve a prejudiced by receiving he was not ad- reconstruction, and Braithwaite relied record notice, vance since his counsel was on the Mullen court’s specifically general fully and could examined Ms. Sewell right description of the federal constitutional have, during the but did not course interpreted by Supreme presence healing, bring any ask her to find and in Snyder. Braithwaite’s application necessary documents to the courtroom. presence of the federal constitutional Furthermore, argued defendant has not directly binding with the conflicts prevented presenting that he was of Chessman as well as binding New York at the evidence Peters, 958, precedent, People v. 6 A.D.2d McNeill, 634, v. State 349 N.C. 509 S.E.2d (“Coun- (App.Div.1958) 176 N.Y.S.2d (1998) added); accord (emphasis 425-26 assigned pro- or the defendant sel should be State, (Tex. Bertsch v. 379 S.W.2d person hearing settle the [to duced involving Crim.App.1964) (stating in a case may as the trial court determine record] correction “[t]he the death mere Teets, its discretion. See Chessman v. absence, appellant’s exhibit after the 1253.”). 156, 77 1 L.Ed.2d U.S. S.Ct. overruled, motion for new trial had been circumstances, certainly Under these being not ‘evidence’ introduced from the wit whether Braithwaite questionable can be proceeding therefore “[t]he ness stand” and York, good in New much less said to be law part appellant’s trial as to such authority upon a re- adequate which to rest require presence”). These cases defini our mand for a new reconstruction that, tively establish because Defendant was case. represented the reconstruction counsel, adequately protect the district court authority supporting As additional process. to due ed Defendant’s presence proposition that Defendant’s required at the reconstruction Chessman dismissing in a foot While Casimono, v. relies on State note, majority places great emphasis on (1997), N.J.Super. 688 A.2d authority from New York’s in questionable Cole, A.2d at 287. Neither of these support po court to its termediate majority’s in this Braithwaite, support cases action People sition. The facts case. Casimono relied on the articulation (App.Div. A.D.2d 593 N.Y.S.2d 464 Izaguirre, N.J.Super. from 1993) clearly distinguishable from the are duty of “the 639 A.2d present ease as it did not involve the death process as a matter of due entitle- trial court trial tran penalty or the reconstruction of a Nonetheless, parties reconstruct the record I ment of the script plea hearing. aor that, considering cir- the actual reject factual a manner this case not due to its clear cumstances, assurances analysis provides reasonable because of its lack of distinctions but accuracy completeness.” and simply Cole is inapposite on recognized point. in In Izaguirre Casimono in which missing involved a trial, transcript for an entire judge parties itself the counsel the trial court and for both did not even conduct a reconstruction hear- participated reconstruction, in the without Cole, ing. Thus, 478 A.2d at 279-80. Cole Casimono, presence of the accused. See authority cannot pres- stand as for a fact, 688 A.2d at 1095. In the Court held in ence for a defendant at such a Izaguirre: reconstruction of the record was instead procedure thoughtfully so crafted and based on a statement of the evidence and implemented by judge] manifestly [the proceedings prepared which and filed designed goal to achieve ensuring [the] [of which, the defendant’s counsel and reasonably complete accurate and rec- through defendant, no fault of the had to be participation ord]. The extensive of [the prepared in the defendant’s absence because prosecutor] fully [defense and counsel] was already completed probation she had pri- her in keeping obligations with their as officers discovery or to the missing record and of the court as well as trial advocates. The could not be located. Id. at In 285. us, reconstructed record before as the words, other the defendant in that case had product participants’!, of the three the trial absolutely opportunity no to assist in the judge, prosecutor, process Cole, defense coun- of reconstruction. Unlike sel,] contrary substantial effort and majority’s meticulous at- to the statement he “was tention, deprived any personal every bears participation earmark of one in that is proceeding,” Majority complete opinion, as accurate and n. Defen- circumstances opportunity dant had an permitted. to file a statement In the any argu- absence of evidence or pursuant 12- to Rule ment any that the por- reconstruction or 211(H). addition, Defendant, through tion of it reasonably is not a accurate and counsel, opportunity had an present complete portrayal of what occurred at testimony witnesses, namely his trial coun- trial, we process conclude that the due sel, at the reconstruction and also parties interests of the have been satisfied. opportunity had the to cross-examine the contrast, By Casimono, 639 A.2d at 346. in prosecutors. Thus, procedures utilized input “there was no from attorney” either present actually case exceeded the Casimono, from the defendant. 688 A.2d at Cole court’s reference opportunity to a mere Thus, procedure utilized Casi- supplement or contest the settled record comply mono failed to with the process due provides support majority’s no for the requirements Additionally, Chessman. position. Casimono did “not read Iza- Braithwaite, From this review of Ca- guirre require precise procedure uti- simono, Cole, I majori- believe that the lized the trial every that case in ty’s position that Defendant had a to be instance;” the court nonetheless determined present at the reconstruction un- the reconstruction alone supported irrefutable, and far especially satisfy was insufficient to require- the basic when this is considered in context Casimono, Izaguirre. ments outlined in 688 with Chessman and McNeill. The absence duly A.2d at 1094. applied Casimono support majority’s' analysis, for the requirements Izaguirre and made no indi- binding authority the existence of from the cation whatsoever that the court’s enthusias- Supreme Court and such authoritative on- approval tic Izaguirre of a reconstruction point precedent contrary, to the makes it all process that was conducted in the defen- troubling more that the is will- suspect. context, absence dant’s In this prolong this matter even further than Casimono’s opportunity reference to an it has been for a mere technical exercise the defendant to attend must be construed as I believe will have no effect on the merits of nothing guideline more than a made dicta present appeal. Consistent with due requirement rather require than a that would process, oppor- has had numerous a new if met. tunities to his version of the

55 give appellate court a basis on which to and, procedural re- hearing in excess pur- 12-211(H), in the trial court.” The evaluate events has in Rule outlined quirements under Rule 12- counsel, pose of record reconstruction through opportunity, even had the 211(H) adjudicate guilt is not to defendant’s prosecutors’ version of to cross-examine Indeed, impose the need or to a sentence. nothing hearing. is more plea There presupposes that for a record reconstruction gained by requiring a new recon- can be adjudged guilty of the a defendant has been must hearing at which Defendant struction appealing crime at issue and is the convic- short, “presence In Defendant’s present. be Court, Supreme As described tion. useless, the benefit but [and] would be “necessary a record is a the settlement of 106-07, 54 Snyder, 291 U.S. at shadow.” Chessman, integral part” appeal. S.Ct. 330. (footnote 162-63, 77 1127 354 U.S. at S.Ct. at the eviden presence Defendant’s omitted); 158-59, 77 accord id. at S.Ct. constitutionally com tiary hearing was not (discussing preparation “the and settlement hearing. Defendant had notice of the pelled. transcript constituting appel- of the trial addition, opportunity to Defendant had an In upon which the California Su- late record obligation of in that he had the be heard subsequently petitioner’s preme heard under Rule 12- filing a statement of evidence However, right the test for the appeal”). 211(H). to relate his Defendant chose not proceeding is present is not whether the plea hearing. The version important appellate review. Price v. very provided well have states that he “could Johnston, 334 U.S. 68 S.Ct. that would have aided important information (1948) (“[A] prisoner has no abso- L.Ed. Majority opinion, 14. dis his defense.” right argue own [or her] lute right agree. Defendant’s to confront wit present proceedings in an even to be at the implicated against him was not nesses appellate court. The absence оf that prosecu because sharp constitutional [or her] contrast to his merely attempting to recall the tors were being present person prerogative of prove not to events at felony prosecution significant stage of a each Quinones, guilt. See omitted)). (citation test, instead, ....” appellate coun N.E.2d at 731. Defendant’s presence “a the defendant’s has is whether present hearing and cross- were at the sel relation, substantial, reasonably to the full- prosecutors concerning their examined opportunity to defend [or her] ness of result, hearing. As a De memories of the charge.” Snyder, 291 U.S. at against presence would not have contribut fendant’s 105-06, has 330. Once defendant S.Ct. proceeding. ed to the fairness of the Cf. sentenced, no convicted and there is been Stincer, 730, 745-46, Kentucky v. longer charge against which he or she (1987) (con 107 S.Ct. 96 L.Ed.2d judgment final It is now a could defend. cluding to be was not subject ap- to review on conviction which is implicated by competency for wit peal. testify because all scheduled to at trial nesses majority’s holding in this case then- questions of the witnesses related to process significantly alter the of record will ability to recollect rather than substantive typical A record reconstruc- reconstruction. defendant). Thus, testimony against 12-211(H) place Rule will take tion under respondent ‘could “there is no indication 12- evidentiary without an [anything] had been at the [he] have done 211(H) that, discovery upon of an provides any [hearing] gained have [he] nor would record, appellant must sub- unavailable by attending.’” Id. at 107 S.Ct. thing proceed- of the evidence or mit a statement Gagnon, 470 (quoting U.S. objections files ings. appellee then (alterations original)). S.Ct. 1482 statement, amendments to reconstructing responsibility settle the rec- purpose judge’s The sole documentary submissions. permit meaningful appellate re- from these record is to ord permissibly have pur- could “[t]he Defendant concedes view. hearing in its version of the proceedings is to submitted pose keeping a record of Thus, documentary holding complete possible, to the form. due as the take court should evidentiary in modify it. In appropriate of an measures to ac- required process tasks, received more than is complishing case these the trial court 12-211(H) because, may rely with the assis- on its own or notes recollection appellate counsel, he may hearings of his was able to or tance from trial conduct prosecutors. previous- As the cross-examine consult with counsel and sources. other indicated, ly there is an almost identical rule (footnote Cole, A.2d. at 478 284-85 and cita governing the reconstruction of unavailable omitted). Obviously, original tions the trial Appellate in the Federal records Rules in judge position the best is to do so. See 10(e). R.App. Fed. P. The avail- Procedure. Williams, (“[T]he 629 A.2d at trial 405 court ability documentary of a to record resolution position in best is the to determine whether at both the federal and state reconstruction adequately the record reconstructed reflects unquestionable makes it there is no level that trial.”); at what occurred the see also State presence; obviously, Defendant can- Sys., Coop. ex rel. Educ. Assessments v. Inc. present hearing when a is not not be held. Servs., Inc., Educ. 795 hearing fully The (“If reconstruction com- (Ct.App.1990) 1025 P.2d the tran plied with the dictates of fundamental fair- inaccurate, script object may is counsel necessitating pres- without ness Defendant’s objections. the court district must resolve the sum, presence ence. is not Thus, Defendant’s problems with the can be required adequately because his are interests caught (by and corrected a judge familiar by counsel, represented a full he has and fair timely proceedings) with the in a fashion ” opportunity added)). his version of events (emphasis .... a district “When through in the statement of evidence or the dispute court settles about occurred what testimony counsel, pro- of his trial and the it, in before the court’s determi ceeding way in in no affects his terms status intentionally nation is conclusive unless false guilt or [ujlti innocence or sentence. unreasonable, plainly this because in “Nowhere the decisions of this court is mately the [District] Court has direct knowl dictum, ruling, and still there less edge parties of what the [stated the] case priv- the Fourteenth Amendment the assures general proce and of what the Court’s own ilege presence presence when would be Hernandez, dures are.” United States v. 227 useless, or Sny- (6th the benefit but a Cir.2000) shadow.” (citations, quota F.3d 695 der, 106-07, at 330. marks, omitted) U.S. 54 S.Ct. quoted tion proceeding appel- (alterations reconstruction is a tool for original). review, and, precedent late as from the Unit- uniformly rejected have also Courts holds, Supreme ed States judge that a presiding notion over a constitutionally required. presence was not hearing is a witness thus, and, judge case have held that a trial Majority’s Regarding 4. The New Rule need recuse at a record reconstruction Judge Presiding Over Recon- “In to reconstruct and Hearing struction settle record of a trial proceeding, any authority Without or much dis- as the final arbiter of the the Trial record cussion, majority summarily “direct[s] not, terms, Judge is constitutional a wit- judge original other than trial ness, rather the official but who certifies to preside judge over the new reconstruction court, can, if he or what she hearing.” Majority opinion, 16. Courts place originally took below.” People Alo- uniformly have held that presiding trial mar, N.Y.2d N.Y.S.2d rely judge must settle the can record and (1999); Quinones, N.E.2d accord See, e.g., her own his or recollection. United (“There suggestion 608 N.E.2d is no (9th Kenney, States F.2d judicial this case bias that cast would Cir.1990); Quinones, 608 N.E.2d impartiality judge’s doubt on find- rulings. acting trial court is not that the ings [I]f satisfied is not upon agreed against statement is accurate or as in constitu- witness defendant omitted)). (footnote Therefore, proceed- an unrecorded conference or similar tional sense.” majority’s believing reli- respectfully that the unless some basis exists I believe patently misplaced. trial un- ance on Rule 11-605 that the court’s account false.”). deliberately The ma- reasonable of a reconstruc purpose record jority’s analysis require would seem an accurate and produce is to tion every the trial recuse instance complete appellate record. believe record, if even settlement settle- judge, neutral requiring that solely ment on of evi- is based statements position in the best to settle who is parties dence both in the of a and absence record, be reduced to the status the Apparently, judge’s the trial role in very purpose the of record witness frustrates such a circumstance would be reduced to the 12-211(H), Rule the reconstruction. Under filing mere of an affidavit. Under this inter- the record because district court must settle 12-211(H), however, pretation of Rule there knowledge its of the of involvement require a is no reason to that court district original suggestion no proceeding; there is record; judge the pre settle the judge the that the trial should be rule proceeding. equally would suited to the blind task presiding the be of vented from over 2, documentary 1999-NMCA-045, settling n. the from Jeff M., In 20 record sub- See re event, 87, judi- (discussing any P.2d In a of 127 977 352 a missions. as matter N.M. 12-211(H)). economy, pursuant Rule cial since the that reconstruction to believes Pope majority’s, Judge preside original directive that the trial should not “may preside recon it not” over the second over the reconstruction is unfortu- change a to struction creates fundamental nate that this remanded the matter to Court 12-211(H) by precluding the Judge years ago. Rule trial Pope three settling approving from the record. The prevents this Court New Mexico Constitution Adequacy B. the Review of Record to changing procedure pend in a a rule of Defendant’s Claims IV, 34 of the Con case. Article Section Alabama, 238, Boykin In v. 395 U.S. man of the of New Mexico stitution State 242, (1969), 1709, 274 the 89 23 L.Ed.2d S.Ct. [Legislature shall “[n]o dates that act of the Supreme Court held that a court cannot or remedy party, affect of either the accept guilty there “an affir- plea a unless is change procedure, in the rules of evidence or showing intelligent mative any pending Marquez Wylie, case.” See v. imper- voluntary.” The Court held that it is 544, 545-46, 69, 70-71 434 P.2d presume privilege a of the missible to waiver IV, (stating 34 that Article Section self-incrimination, against to a trial the Court). In applies Supreme to rules of the by jury, right of “from and the confrontation limitation, I see addition to this constitutional at 89 1709. a silent record.” Id. S.Ct. recusal, Pope’s require Judge to no reason Additionally, must understand the defendant allegation of of bias or falsification absent an charges against the of him or her nature the Alomar, See 689 N.Y.S.2d record. relationship and the of the law to the facts. (“Recusal, a at as matter of N.E.2d (relying n. Id. at 243 89 S.Ct. only process, required where there due is States, McCarthy v. United direct, pecu personal, exists a substantial (1969)). 1166, 22 L.Ed.2d 418 89 S.Ct. reaching niary particular conclu interest a 1996-NMSC-013, Garcia, In in judicial a roles is seen sion or where clash 300, 303-05, 544, 547-49, N.M. 915 P.2d Here, sought only Judges to exist. showing affirmative re- held that the stenographic their records were assure that quirement Boykin must be determined interest on certified as accurate. No such taking plea of the based on record part Judges is shown these these (citations record of other omitted)); rather than the Rogan see also records.” Cir.1999) (“If taking (1st occurring after the Menino, either before or F.3d sentencing hearing or a 10(c) plea, such prom to more a hollow

Rule than plea. ise, hearing on a motion withdraw accept a district appeals a court of must taking plea. is the transpired “[T]he at critical event what court’s 5-303(E) Cir.1988) clearly contemplates (affirming plea the court guilty despite prior at time and transcript advise the defendant plea fact that the verbatim plea.” at accepting Id. misplaced); was lost or Kotas v. Commonwealth, at 304. The Court determines whether (Ky. 446-47 S.W.2d plea knowing voluntary by assessing 1978) (affirming the denial of a motion See, totality e.g., circumstances. plea upon based supple withdraw record Isom, 85 F.3d evidentiary hearing). mented later (8th v. Kelly, United States 167 F.3d Defendant contends the State is Cir.1999), Eighth Circuit addressed showing unable to make affirmative guilty tape transcript for which the knowing voluntary in accor- due unavailable to a fire at the court clerk’s Boykin missing dance with because office. As plea hearing. disagree. argued the defendant that he was enti First, improperly places the bur- tled to reversal participants because validity den on the State demonstrate the hearing the could not “recall verbatim what above, plea. explained of the As it is Defen- actually transpired” plea hearing. at the Id. to dant’s burden demonstrate a in- manifest Eighth rejected at 438. The de Circuit the justice in to order warrant the withdrawal of argument guilty fendant’s and affirmed the Second, рlea. that believe the record plea plea agreement on a based the and affirmatively does that show representation judge of the trial and trial plea knowing voluntary. they counsel nothing that remembered unto Numerous courts have addressed the {79} occurring ward at the Id. at &438 validity pleas guilty light missing of in n. 6. example, otherwise unavailable For record. Quinones, 730-32, State, N.E.2d at the Su- In Joe v. P.2d (Alaska preme 1977), Judicial Court of Massachusetts ad- recording there was no of plea guilty dressed a of degree plea proceeding to second a “[d]ue to malfunction which murder for the defendant recording was sen- equip- courtroom electronic imprisonment. result, tenced to At life the defen- ment.” tidal As court held a plea hearing, reporter pre- dant’s a court plea to determine whether the inwas pared however, transcript; verbatim accordance with Alaska’s rules of criminal procedure. became when judge unavailable the court Id. The trial testified vehicle, reporter’s which contained the tran- though and even he had been script, verbatim, was stolen. The trial conducted unable to recall the hearing following the defen- the trial court that the concluded defendant plea dant’s motion to at which rights. withdraw was advised of his Id. at 511. The defense counsel and the stenographer Supreme court of Alaska Court affirmed the trial hearing' testified. The found after evidentiary court’s decision conduct an beyond that he was convinced adopted reasonable government’s posi- plea voluntary doubt that the and know- tion that ing. Supreme Judicial Court concluded if the mechanical failure of in-court record- unavailable, may “[i]f the record is ing equipment ... represent is automat- through testimony reconstructed or other grounds ic plea, withdrawal of a proof suitable of happened what in court continuing validity every conviction guilty plea

when the was taken.” Id. at 730. upon plea which rests will de- hereafter The court further concluded that the recon- pend grounds upon are which irrelevant to adequately structed record demonstrated propriety or the fairness of pro- plea the defendant’s constitutionally Instead, ceedings plea. which led to that valid. Id. at 732. validity upon of convictions would rest Quinones analysis The court’s nature, such factors the whim of supported by numerous capability system’s decisions from other mechanical court See, devices, state e.g., recording and federal courts. fallibility United the human Buckles, (11th deputy States v. operating 843 F.2d 471-73 in-court clerks record- to be guilty pleas are (providing that devices, abilities the clerical ing as waiver absurdity by “the same standard” governed сlerk’s staff.... trial court stating, respect underscored to counsel position ... appellant’s counsel, major presumption Anchor- that a fire in the that a to the by the fact impermissible could vitiate a silent record is age waiver from courthouse show, in the occurred must which have must or there convictions record “[t]he ap- show, the rule District under which allegation Third Judicial and evidence be an espouses. pellant but intel- offered counsel an accused was rejected understandingly the of- ligently and (omissions original). at 513 Id. fer”) quotation marks authority and (quoted court’s determination the lower also affirmed added). omitted) [constitu- “The (emphasis evidentiary hear- testimony from the that the whether was and remains standard validity tional] sufficiently supported the voluntary intelli- plea represents at 514. plea. Id. courses of among the alternative gent choice Hall, Neb. Similarly, North Car- open the defendant.” action (1972), Supreme 130, 195 N.W.2d 25, 31, 91 S.Ct. Alford, olina guilty plea affirmed of Nebraska (1970). 27 L.Ed.2d 162 disappear despite the degree murder to first hearing. The record of the ance of the ample there is In the evidentiary hearing at on a later ‍​​​‌‌​​​‌​​​‌‌‌‌‌​‌‌‌‌​​​‌‌‌​​​‌​​​‌‌‌‌‌​‌‌​‌​‌​‍court relied Boykin’s require- comply with evidence presided over the judge who which the showing Defen- an affirmative ment of what recall verbatim that he did not testified knowing, intelligent, plea was guilty dant’s that he hearing but said at the had been First, contains voluntary. the record and -and questions memorandum of followed a by signed De- which is plea agreement, the the questions to posing those remembered and fendant, attorneys, prosecutor, the his it that Id. The court concluded defendant. the plea agreement lists judge. The the would be pleaded guilty charges to which Defendant wholly unrealistic to determine by waived rights he and the constitutional proceedings the actual record loss of Second, the record con- plea. entering his plea guilty require the vacation of should transcript of the reconstruction tains the by has established where the State even findings and trial court’s hearing and the reasonably accurate ac- other evidence that De- court found The trial conclusions. place. a record is what took Such count of of his constitutional was advised fendant though speaks it even a ‘silent record’ not those hearing, understood rights plea at the rec- authority the verbatim than with less intelligently knowingly and rights, and proceedings---- ord of court’s the trial Because is waived them. 12-211(H) Id. the rec- to settle duty Rule under findings as to ord, court’s factual the trial involve a silent case does not This re- plea are at the occurred constitu- what Boykin, there is no record. Under they were only whether transcript to determine viewed a verbаtim requirement of tional judge or are by the intentionally falsified ex rel. hearing. E.g., United States plea (7th See evidence. unsupported substantial Franzen, F.2d 877 v. Grundset Garcia, 1273, 1278 F.2d Ziemba, v. United States Cir.1982); 216 Neb. State Cir.1993) (“When (9th court un- the district (1984). Moreover, the Su- N.W.2d 10(e) dispute what about settles distinguished der Rule specifically has preme Court it, the court’s before suspiciously occurred transcript [that] “an extant showing absent a is conclusive determination the defen- question whether on the ‘silent’ unreason- plain falsification Boy- intentional rights” under waived constitutional dant quotation (quoted ableness.” at one time transcript that existed from a kin Mori, omitted)); States United but is marks a valid waiver may have reflected Cir.1971) (“The (5th trial 240, 246 F.2d Raley, 506 Parke v. longer available. no pursuant to his the record corrected ordered 20, 30, 121 L.Ed.2d 391 113 S.Ct. U.S. issue, and that events at of the recollection (1992); at 89 S.Ct. Boykin, 395 U.S. see determination, showing absent a of intention- this which Court addressed trial court’s unreasonableness, plain comply accept- al failure to with Rule 5-303 in falsification Nevertheless, conclusive.”); guilty plea. v. Kurley, 114 N.M. as this cf. Garcia, guilty plea Court made clear (Ct.App.1992) will P.2d (“When comply for a to not reversed failure strict- provided the record defendant is ly script with the of the rule unless that incomplete, presume will this court “prejudice failure causes defendant’s portions support of the record absent guilty plea his its understand actions.”). trial court’s Garcia, consequences.” 121 N.M. at findings clearly The trial court’s are P.2d at 303. testimony supported prosecu- of the case, clear as is from the tors in this of whom both testified that trial court com- they specifically plea remembered the hear- plied by advising with Rule 5-303 ing in gravity this case due charges, nature of the facts which charges. prosecutors testified that prove, the State intended constitu- question no there was Defendant under- rights waiving. tional which Defendant was charges, stood the that the facts that would Additionally, complied with aloud, proven have been at trial were read 5-303(G) original during plea hear- engaged person- trial judge and that the in a ing by making transcript a verbatim of that Defendant, colloquy advising al him of hearing. fact ensuring rights that he understood misplaced later lost or did affect Defen- rights waiving. he prosecutors Both ability guilty dant’s understand attorneys noted that neither of Defendant’s consequences pleaded its at the time he and. object- who were above, guilty, and pre- as discussed does not any stage ed The trial ascertaining vent this that Defen- he specifically also noted that remem- guilty plea dant’s met all constitutional re- going ques- bered over his standard form of quirements. Moreover, Defendant not does tions with Defendant. This form standard allege that cоmply the court failed to questions part made a the record and any way, specific with Rule 5-303 such provides further evidence that Defendant’s failing to him requisite advise of certain plea Qui- knowing voluntary. See Buckles, rights. constitutional 843 F.2d Cf. (“We nones, impro- N.E.2d at see no (“In bar, [the at case at defendant] the priety in relying judge’s ... a customary alleged presented any never nor evidence practice taking guilty pleas to reconstruct that the comply district did not in full record.”). the Defendant did not introduce a conclusory with Rule 11.... Mere allega- of the statement evidence and called no wit- tions do not a warrant the withdrawal of dispute prosecutors’ nesses to version of plea.”). Allen, 2000-NMSC-002, guilty plea hearing. I conclude that the trial ¶ 113, 128 N.M. the defen findings court’s from the reconstruction hear- argued per dant that this Court could not clearly supported by are substantial evi- meaningful a form review because some dence. bench conferences were inaudible on the raise, appears Defendant also to re- tapes; rejected argument we because missing transcript, argument lated to the “the trial court was careful to ensure that its comply that the trial court to failed with Rule rulings were stated on the record in an audi 5-303(G), requires which district to manner” ble and because the defendant make a “verbatim proceedings” record provide specific may failed references that initially plea taking when a in- that “shall prejudiced Thus, appeal. have because clude, limitation, without the court’s advice to compliance [the “substantial is suf rule] defendant, inquiry ficient,” into the Garcia, voluntari- 121 N.M. at at P.2d plea including any plea agree- ness of the Defendant is not entitled to relief as ment, accuracy the inquiry into the result of the record. State v. lost Jona Cf. ¶¶ Garcia, B., guilty plea.” 1998-NMSC-003, 6-13, relies on Defendant than 546-49, 302-05, at guilty N.M. P.2d at (affirming plea 954 P.2d 52 the federal or court’s to utilize der either Constitution despite the trial failure it was plea and de- Mexico Constitution and that agreement for the New proper form signa- permissible spite preside of the for the over the absence defendant’s agreement). proceeding Defendant’s plea sentencing based on ture on the jury sentencing to demand failure adequate that I conclude there is sentencing jury. express waiver of plea. on the review the Based record to above evidence reviewed and the record, Advisory Opinions including plea Econo- agreement and Judicial my hearing, I conclude the reconstruction intelligent, guilty know- Defendant’s premature ma- I believe it is for the voluntary. noteworthy It

ing, is unanimity jority even to address the issue of argues simply can any sentencing other issuе its voluntarily longer prove no that he entered remanding this case opinion. The directly he does contend plea; into the the trial court in order to reconstruct back to plea involuntarily un- that he entered time, hearing, a in Defen- second establish knowingly. Defendant has failed to 31-20A-4(A) re- presence. dant’s Section justice injustice miscarriage or manifest automatically review a quires this Court to plea. necessary to withdrawal warrant and sentence. capital defendant’s conviction affirm convic- would therefore Defendant’s Thus, following new reconstruc- Defendant’s tions. must, with the tion we in accordance majority opinion, automatically Defen- review III. Defendant’s Sentence affirms dant’s conviction. Until this Court Right A. Defendant’s Waiver of the conviction, unnecessary to it is Jury Sentencing ato any regarding issues the death sen- address Cheshire, 170 W.Va. that his waiver tence. See State contends (1982) (“If deter- jury sentencing intelligent and was not 292 S.E.2d was not voluntary appellant remand because trial court failed mined on jury guilty pleas, enter her this is- competent him that a on the death advise verdict moot, if convic- appellant’s penalty must be unanimous. Defendant sue will be invalid, questions arising from waiver is in violation all claims that his therefore tions are be- sentencing pursuant Fifth and those convictions Due Process Clauses of the “the ap- meaningless. Consideration Fourteenth Amendments to the United come assignment error would pellant’s and II second of States Article Section Constitution time.”). ma- at premature Defen- be this of the New Mexico.” thus Constitution authority point when it jority much as this provides this Court no as concedes dant unanimity holding with the lan- argument qualifies on Defen- its little this issue. and dant, “assuming judgment of guage, not that our New Defendant’s appeal, on does assert ¶ opinion, 1. addressing Majority provisions stands.” conviction Mexico Constitution’s una- advisory of the jury during provide great- nature right to a trial Because issue, majority’s counterpart. nimity I believe that protection er than federal best, is, interlocu- of the issue at majority agrees una- with Defendant’s discussion binding when it tory not on this Court argument a different and nimity but relies on Defendant, following the appeal as Defendant’s provision than considers constitutional majority hearing. The jurisdictions. well from other second as on ¶ sentencing addressing the respectfully dis- it is Majority opinion, 18. I states judicial economy, interest majority’s holding on “in the agree. I claim believe necessity another advisory Even in to avoid the premature. and and order this issue is However, Majority opinion, 17. holding at majority’s appropriate appeal.” if the were above, indicates conclusion founded discussed this juncture, believe that it is this misunderstanding of the purpose legal analysis. I believe upon erroneous an right to for another reconstruction has no remand that Defendant constitutional following again face unanimity un- will this case requirement This Court advice on the sentencing, majority second reconstruction when relies on the instead so, it will it does be continuation the New Mexico There are Constitution. two present appeal not a problems majority’s second with the reliance on Ar- Moreover, “judicial II, on First, the rationale econo- argument ticle Section my,” majority II, it seems to me would based on Section 12 Article was neither sentencing argu- all of address Defendant’s preserved by in the trial court nor opinion. example, present in its For if ments appeal, pre- raised on our majority argument accepted will cedent that this Court not dictates con- disproportionate that the death argument sider a state constitutional under eligible then not this he would be Second, these circumstances. I believe that sentence, and the Court not would have II, question it is without that Article Section resentencing. to remand for right 12 does jury not contain to a at sentencing. 2. The Absence of Federal Constitu- Jury Right Sentencing tional Majority’s 3. The Violation of Gomez right jury Unlike the to a trial majority’s sole reliance on our innocence, guilt issue of the United States Constitution for the is in case contra- Supreme directly explicitly Court has Gomez, precedent. vention of our In held that there is no constitutional to a 1997-NMSC-006, ¶23, jury capital sentencing Spaziano cases. P.2d this Court held that order to Florida, 104 S.Ct. preserve the issue of whether the New Mexi- (1984). 82 L.Ed.2d 340 provides protection co Constitution broader light that the facts Sixth Amend- than federal Constitution under require jury ment does sentencing, approach our interstitial to state constitution- that the reliability demands of fairness and law, party al must first assert the more capital it, require cases do not and that expansive interpretation of the state constitu- of, purpose neither the nature nor the provision “provide tional reasons for in- behind, penalty requires jury the death terpreting provision differently the state sentencing, plac- we cannot conclude that provision” from the federal court. ing responsibility on the trial concludes, theAs Defendant did not impose capital the sentence case is preserve any unanimity argument in the dis- unconstitutional. court, trict much less our assert that Consti- result, Id. 464.10 As a is clear that there interpreted tution should broadly more requirement is no federal constitutional than the Sixth Amendment or the Four- who wishes waive the statuto- defendant Further, teenth Amendment. even on ap- ry right sentencing jury to a be advised of peal, Defendant himself does not citе Article requirement jury unanimity.11 II, Section 12 of the New Mexico Constitu- Presumably clearly 1999-NMSC-038, because there Coffin, is tion. See State v. 2, 192, right jury no federal constitutional to a at n. 128 N.M. 991 P.2d 477 (concluding practice it, having government 10. Several states the voluntary, continue of the consents to judge, jury, impose a not a a sentence. death and the trial court sanctions it. Patton v. United § (Supp.2001); Ariz.Rev.Stat. 13-703.02 Idaho States, 276, 312, 253, 281 U.S. 74 50 S.Ct. L.Ed. § (Supp.2001); Code 19-2515 Mont.Code Ann. (1930), grounds by 854 overruled on other (2001). § 46-18-301 Some states even allow a Florida, 91-92, 78, 102-03, Williams v. 399 U.S. life, judge to override a sentence of recom- 1893, (1970); S.Ct. 90 26 L.Ed.2d 446 accord by jury, mended a awith sentence of death. 196, 203, Shroyer, v. 49 N.M. 160 P.2d E.g., (1994) § (desig- Ala.Code to -47 13A-5-46 (1945); 5-605(A) 447 NMRA 2002. How nating jury’s advisory). the sentence as ever, context, even in no this there is constitu requirement jury tional that a trial court describe is, by comparison, right 11. There a constitutional unanimity to a in to defendant order ensure a jury guilt to a trial on the issue of or innocence knowing right jury the misdemeanors, waiver of to a trial. except See petty in all cases see Lewis Chrans, States, 322, 325-26, generally United States ex rel. Wandick v. v. United 116 S.Ct. (1996), (7th Bell, Cir.1989); 135 869 F.2d L.Ed.2d 590 and a State v. defendant’s A.2d 311, (Md.1998). right only of knowing waiver this valid is if it is 351 Md. right defendant, specify any to a at a trial and does not although least the that because Moreover, right jury the is sentencing. New Mexico Con- at citing provision the the of issue, it it expressly qualified by assert that should the manner which did not stitution at federal broadly interpreted adoption than the at time of the more was defined be constitution, would addressed plain the claim It did Constitution. the drafters fact, counterpart). only provide right the federal provision under to a to not intend rely not on the constitutional jury capital sentencing hearing Defendant does a be- at all, by jury under right cause, to at whether adopted, a trial at the time it was death II, under Article Sixth Amendment or mandatory statutory the pun- sentence was contends, simply 12. Section degree first murder. 1907 N.M. ishment for argument, no authority and almost Laws, no jury § 3. Neither the nor the ch. jury voluntary, not know- his waiver of to sentence a defendant had discretion no testi- intelligent because witness degree first murder to life im- convicted of una- the district court mentioned fied that Territory Griego, 8 N.M. prisonment. See him; nimity he that his waiver is to claims (1895). there no 42 P. 81 Because the Due Process invalid under therefore question right jury to have determine the United States Constitution Clauses capital punishment at the time the Consti- process in Article protection and the of due II, adopted, Article tution was Section II, 18 of the New Mexico Constitu- Section sentencing jury. right to cannot include the Thus, only a makes due tion. II, Clearly, continues [Article 12] Section claim, respect to this process and even with right jury that class of cases trial claim, argue not to the district Defendant did it either at cоmmon law or which existed argue not that this court and does adoption by at time of the statute II, interpret Article Section 18 Court should Constitution, that class cases more broad- the New Mexico Constitution jury right by a trial existed where the ly Amendment. Be- than the Fourteenth Constitution, prior it cannot be de- argue does not our cause Defendant And, we legislature. as view nied interpreted more should be Constitution matter, the ‘as phrase it has heretofore Constitution, I broadly be- than federal right jury refers to the existed’ improper contrary to this lieve it Territory New in the Mexico existed engage a state consti- precedent to Court’s immediately preceding the time analysis. tutional adoption of the Constitution. Greenwood, Jury II, Right Under Article State ex rel. Bliss 4. (citations Section omitted). right jury to a absence II, 12 of Relying on Article Section common law or stat- sentencing either at Constitution, Mexico the New adoption time of the Consti- ute at the “[bjecause the constitutional concludes that interpretation of Article tution forecloses predated modern-day jury to a II, majority. Section advanced guilt into death cases bifurcation of jury determining involvement sentencing phases, right necessarily exclusively purely and capital sentencing is Majority applies opinion, 18. to both.” statutory exist in New Mexico and did not properly raised a Even if Defendant had Laws, § ch. until see 1939 N.M. claim, II, Article Section constitutional state jury to a simply protect does Statutory Right to a Sen- 5. Defendant’s states, in rele- sentencing. provision This at Jury tencing jury by trial part: right “The of as it vant not have a constitu- Defendant does to all shall be secured has existed heretofore Const, jury capital sentenc- right to a for his II, tional art. and remain inviolate.” N.M. ing hearing the state or federal added). under either majority § The has no (emphasis 12 constitutions, right a much less constitutional right proposition that the to authority for the unanimity. jury Be- judicial to advice on jury sentencing phase. The applies a to the right to a is no constitutional cause there provision application of limits its to text this 64 sentencing, only

jury knowing at I can construe De- a signifi obtain waiver. There is a process argument waiver as right only fendant’s due upon cant distinction between a Capital one on a violation of the Felo- based right demand and a that otherwise exists ny Sentencing Act. I therefore address voluntarily. knowingly until is waived Legislature require intended to See, whether the e.g., Marrujo, State v. N.M. unanimity in jury advice order to obtain a on (1968); P.2d Lafler, voluntary knowing and waiver of the statuto- (1987) (“A Neb. N.W.2d jury ry right sentencing. a to While the statutory required demand is to invoke this Capital Felony majority that states Sen- right.”). statutory As a matter of construc “right tencing “confirms” Defendant’s to Act tion, presume Leg this Court must that the by jury,” Majority opin- be a see sentenced of islature aware this distinction based ¶ ion, 19, right Act in fact creates the to Thus, existing precedent. I believe that it is words, by jury. a be other sentenced Legislature’s repeated that clear of use by “right jury” a sentenced is statuto- be the word “demand” was deliberate. constitutional, ry, not and its limits are deter- majority authority The relies on statutory matter mined as a of construction. jurisdictions unanimity holding. other for its that, agree pursu- with the high Maryland The courts both and Penn- statute, sentencing ant jury must that, sylvania have held in order for a waiver unanimously specify the death sentence. See right jury sentencing to a to be know- However, Majority opinion, this does voluntary, ing and the trial court must advise conclusively holding a that lead to a jury the defendant imposing that a verdict judge unanimity inform must defendants of a of death must unanimous. requirement. clearly Legislature has State, Harris v. 295 Md. 455 A.2d required a order for defendant who (1983); O’Donnell, Commonwealth v. pleads guilty statutory his or receive her (1999). Pa. 740 A.2d 212-13 How- right jury sentencing to a he or she must ever, the statutes in explicitly these states 1(B) demand it. Pursuant to Section 31-20A require that a defendant waive his or her (1979), guilty “[i]n case of a to a statutory right sentencing jury, ato as com- capital felony, sentencing proceeding pared statutory to our capital mandate that a shall practicable by be conducted as soon pleads guilty defendant who or demand his original judge jury upon trial a jury. sentencing her to a See O'Don- added.) (Emphasis a party.” demand of nell, statutory (stating A.2d at 211 Legislature language also used language, jury “if the defendant has waived a 1(D): “upon plea guilty, Section a 31-20A pleaded guilty, sentencing pro- demanded, jury where no has been ceeding jury shall be before conducted a argument shall pun- allow and determine the impaneled purpose for that unless waived imposed.” Again, ishment 31- to be Section the defendant with the consent the Com- directs, involving 20A-3 “in cases a monwealth,” requires defendant demanded, guilty, jury where no has been must her (quoted waive his or the judge impose determine and shall omitted)). Thus, these states concluded that added). (Emphasis Legisla- sentence.” statutory because defendants have indicated, clearly plain ture has with this waived, right under law state which must be unambiguous language, if Defendant waiver, the defendants’ knowing to be by jury, wished to be sentenced he had the voluntary, comport process. must with due Instead, burden to demand it. O’Donnell, 740 A.2d at 212. Because a de- and, jury fact, did not expressly demand pleads guilty fendant New Mexico who sentencing jury. waived chose capital jury, must offense demand these judge. to be sentenced If Defendant requirements states’ discussion waiver demanding jury bears the burden sentenc- inаpposite. statute, sup- under the then there is no port Capital Felony Sentencing Act Even some have states which a waiv the majority’s require provision notion that the inform er do not the trial him unanimity requirement unanimity. in order to the advise defendant of In Peo

65 702, judge a discussed in order to resolve the 94 Ill.Dec. 488 King, 109 Ill.2d ple v. Garcia, (1986), argued majority’s 121 the N.M. at defendant concerns. N.E.2d Cf. (“[Provided jury signed of for the waiver a 915 P.2d at 305 the record that his knowing not and in sentencing hearing requisite the infor- shows the defendant had open mation, only he was not advised telligent, because court need not be the source the jury’s information.”). requirement the that a deci court of that To reverse a death of death be unani imposing the sion by holding a trial court not sentence that did Supreme reiterat The Illinois Court mous. jury properly a of unanimi- inform defendant adopt “previously it has declined to a that ed ty when of the defendant otherwise knows require that would an admonition re rule requirement the unanimity requirement,” the garding idly allows a defendant to sit as waiver that the defendant’s concluded possibly colloquy court a deficient conducts knowing intelligent.12 Id. jury waiver trial and concerning a ver- then claim error once unfavorable Majority’s Requirement The New 6. imposed. is The dict and sentence crux majority that Although the states question appellant whether the issue is failing inform him of trial court erred rights knew her so [his or] and understood unanimity, majority specify if does not rights that waiver those could a valid inform the of this must Defendant occur, [him not whether the court informed may satisfy if “right” or Defendant’s counsel rights. those Whether a trial or] her of merely requirement. majority The con- this [his or her ] informs defendant right that to be sen- cludes “waiver simply rights is one factor on the record by jury cannot be considered know- tenced consideration, for not a litmus test. intelligent unless defendant is ing and O’Donnell, (Castille, J., 740 A.2d at dis- aspect.” Majority opin- of this critical aware senting). ¶20. ion, record in case indicates this Majority indicates that “[funda- right Defendant did not demand his to a it mental will not be invoked when error Capital sentencing jury required pro- appears contrived a defendant Felony does Sentencing Act. The record not its cedural default order to benefit from court advised Defen- reflect the district protections.” Majority opinion, 11. How- requirement jury unanimity. dant of ever, precisely must that is what However, the record also does not indicate allowing Defendant to do on this issue. be Defendant was aware of this whether not that he not not did Defendant does contend requirement from an alternative source. understand the difference between one Court, fact, to this even within briefs twelve; likely, extremely possible, if not is did not un- Defendant never states that he attorneys nothing in the that he and his said unanimity requirement. He derstand verdict are hopes of a more favorable attorneys did not contend that does asking the to conclude that simply now Court jury over a advantages discuss defect, in- procedural trial court not majority appears pre- sentencing. forming something of he which Defendant did not have this infor- sume aware, already invalidates the sentence. However, above, I expressed as I mation. Thus, assuming on even advice majority’s ruling this believe the issue is exists, unanimity question change ruling might if premature, and the actually knew of case is whether presented to this different information jury sentencing by a reason, between difference For after remand. be- sentencing by judge, not whether prudent it would to ask either Defen- lieve stand, Judge himself informed Defendant dant, Pearl if he his trial coun- takes the Garcia, P. at hearing if this notion. at the sel new jury unanimity sentencing by (stating, respect to fundamental issue of versus noteworthy Ill.2d Ill.Dec. 513 N.E.2d these states have It is that none of (1987); State, jury Md. 616 A.2d to a Bruce v. held that there is a constitutional Erickson, See, (1992). e.g., sentencing. People review, this “persuasive “exereise[s] error that Court this constituted a not to ] set reasonf very guardedly, only discretion where the conviction aside without trial further invaded, right has some fundamental been proceedings.” actually Id. If the defendant technical, strictly legal, of and never aid the jury understood difference a between claims”). previously unsubstantial As dis- trial, notwithstanding trial and a bench the cussed, majority’s holding I the believe on judge’s matter, on insufficient advice the interlocutory It this issue is dicta. is purpose then “no by useful would be served thus, ruling, panel like this Court’s 1999 setting her aside conviction on the basis of regarding motion decision on Defendant’s shortcomings the which did absence from first reconstruction hear- Indeed, not affect her choice. to order a new subject ing, it is or alteration. amendment upon trial a of such state facts would waste remand, this When case returns after this judicial scarce resources and would be con- may thus address issue with the trary public to the interest.” Id. at 1147-48. knowing benefit of whether Defendant had Thus, Lopez unwilling the court in knowledge regarding jury unanimity. actual presume, majority case, as does in this that the defendant did not know differ- 7. Interference with Counsel’s Advice jury a ence between trial and a bench trial majority The guidance also offers no without such an having assertion been made or direction to the trial court to what the by the defendant. As previously, mentioned unanimity on encompass. advice must The represented by multiple Defendant was at- states, majority merely pure a of “As matter torneys experienced in death cases. requirement probability, jury unanimi Defendant nоt does contend to this Court ty means that while a defendant who is sen that he not requirement did know of the only by a tenced has one chance of unanimity jury for sentencing capital avoiding penalty, the death a defendant who very cases. I find it difficult to believe that jury Majority is sentenced a twelve.” has experienced attorneys would opinion, majority’s 19. The on reliance Lo have advised Defendant to elect have a States, pez v. United 615 A.2d 1147 judge impose the sentence in- without first (D.C.1992) proposition interesting for this forming sentencing jury him that a could not for a number of reasons.13 The inter most impose a except sentence of death unani- esting aspect Lopez in relation to the mous verdict. remedy opinion is the chosen unanimity court. a The court concluded that the trial believe that advice inquiry requirement court’s knowing any into the volun that includes mention of tary probabilities infringe nature upon waiver to a would the attor- by jury ney-client trial privilege. was deficient. Id. at 1147. A defendant’s counsel However, similarly pres might to Defendant in the advise his or her client a case, argued ent the defendant “that trial preferable jury sentencing for as a mat- insufficient, judge’s inquiry strategy but nev she ter of trial on based the nature of specifically er asserted either that did the unusually she facts the case or because of rights complex case, not understand her legal she wanted issues involved but jury trial.” majority’s analysis, Id. court noted that this under ap- the court example, Lopez justice system, 13. For the defendant in speak- con- with the criminal and not assaulting supervisor, ing English. victed of her and the case Id. at n. 1147 & 10. also sentencing jury. recognized significance did jury thus not involve It con- demand and only unanimity purposes distinguished cerned on upheld advice an earlier case in which waiving by jury. jury to a though constitutional trial the waiver aof trial even the addition, requirement unanimity the court's court neither advised about the defendant Lopez requirement unanimity advice in was not Instead, complied based constitutional nor with a requirements. procedural requiring the court determined rule written waiver. Id. may Lopez defendant not have understood court in noted that in its jury difference between trial and a bench trial earlier had case the defendant failed demand a specific including jury requirements based on the facts in "the for waiver being foreign country exacting” the defendant from a with- should be less when there has been no jury system, having any prior out jury contact Id. at & demand. 1145-46 n. 9. provides a for this Court to sufficient basis required to contradict parently would erroneously, fairly guilty plea. I con- if review Defendant’s by simplistically, not advice jury always knowing informing defendant that clude the for a life voluntary. chance failed to demonstrate a better statistical provides Ward, example, justice, in Braun v. miscarriage For and I would thus of sentence. (10th Cir.1999), cert. F.3d affirm Defendant’s convictions. denied, 1114, 120 S.Ct. majority for a the remands Because (2000), attorneys defendant’s the L.Ed.2d 803 hearing, urge I the dis- new reconstruction plead him to nolo contendere “counseled every comply make to trict court to effort sentencing rather go the to before requirements Rule 12- the with time sentencing jury for trial and face a both than 211(H) in to effectuate review of De- order give him ‘for jury death would because ” urge the I would fendant’s conviction. majority’s “pure Contrary the sure.’ Defendant, stand, the question if he takes assessment, experienced at probability” attorneys, to the con- well as his trial as torneys Braun the defendant advised scope advice and his knowl- tent and of their ‘fifty-fifty in front of the had a shot’ “he jury unanimity, edge regarding in addition to death, of receiving a sentence testimony judge’s advice regarding ‍​​​‌‌​​​‌​​​‌‌‌‌‌​‌‌‌‌​​​‌‌‌​​​‌​​​‌‌‌‌‌​‌‌​‌​‌​‍the percent only ‘about a ten he had whereas plea hearing rights at the jury.” Id. at 1190. shot’ front awareness of the waived and Defendant’s rejected the claim Circuit defendant’s Tenth relationship charges, nature involuntary, improp due to his facts, possible maximum to the and the law assuring sentence er influence counsel I plea agreement.14 would under death, attorneys “made than because less any potential unavailability of also note that and, regarding guarantee sentence” [the] no prior at the reconstruction witnesses attorneys’] experience and [the on “[biased impede pro- reconstruction should they expertise, properly [the advised defen 11-804(B)(1) NMRA 2002. cess. See in front of the that he had better shot dant] By judge.” requiring the court Id. 1190. I that Defendant’s convic- believe emphasize probability over bare statistical be affirmed consis- tions and sentence should particular in a facts statutes, rules, cases, and con- tent with our relationship may unwittingly undermine the otherwise, I majority holding stitutions. and, effectively, client and counsel between respectfully dissent. ignore the sound instruct defendant experienced attorneys. advice her BACA, F. Justice. I CONCUR: JOSEPH reasons, disagree these with For majority’s regarding Defendant’s ruling ultimately If this case is remand-

sentence. hearing, I sentencing would for a new ed cases of “[i]n the trial court that remind sentencing proceeding, all for a new remand testimony transcript of and a all exhibits prior trial and admitted other evidence sentencing proceeding shall be admissible sentencing proceeding....” new Section 31-20A-4(E).

IV. Conclusions record, including the existing (Colo.Ct. Sickich, attorney-client privi- proceedings, he waived People ("[B]ecause put App.1996) respect defendant in issue with lege discussions counsel coun he did did not receive from what advice sel, topics.”). these understanding as well as his own

Case Details

Case Name: State v. Martinez

Court Name: New Mexico Supreme Court

Date Published: Mar 12, 2002

Citation: 43 P.3d 1042

Docket Number: 23,463

Court Abbreviation: N.M.