State v. Henderson

MONTGOMERY, Justice (concurring in part and dissenting in part).

I join in the opinion of the Chief Justice, except that I dissent from the ruling that there was sufficient evidence of the aggravating circumstance of murder of a witness to permit the jury to find and consider that circumstance at the sentencing hearing. I would vacate the sentence and remand for resentencing with instructions that, because of double jeopardy, the state may not resubmit the issues of murder of a witness and murder during the commission of a kidnapping as aggravating circumstances.

In the original opinion in this case filed December 4, 1989, the Chief Justice, Justice Ransom and I ruled that the answer to question (2) — “Did the trial court err in allowing the jury to consider murder of a witness as an aggravating circumstance?” —was in the affirmative. Now the Court rules that it is in the negative. In my opinion, nothing has been presented to warrant this change of position. While I fully respect the prerogative of any Justice to change his mind after the filing of a motion for rehearing, I observe that the state did not even draw into question, in its motion for rehearing, our original ruling on this issue. I believe that the disposition of the issue in the original opinion was correct, and I therefore disagree with the Court’s reversal of its conclusion in the opinion on rehearing.

In the discussion of this issue in the original opinion, we first contrasted this case with State v. Guzman, 100 N.M. 756 , 676 P.2d 1321 , cert. denied, 467 U.S. 1256 , 104 S.Ct. 3548 , 82 L.Ed.2d 851 (1984), in the same way as does the opinion on rehearing in footnote 1. We then said:

In the present case we have nothing like the certainty in the factual pattern that we had in Guzman to establish three separate and distinct aggravating circumstances. Here we simply have a murdered and raped victim. The State infers from the evidence that Henderson killed the victim in order to keep her from testifying against him. We cannot say, however, that the evidence conclusively establishes the separate and distinct aggravating circumstance of killing a witness.

Contrasting the present case with State v. Clark, 108 N.M. 288 , 772 P.2d 322 (1989), we went on to note, as does the opinion on rehearing, that “[t]he same degree of certainty does not exist in the case before us as to the separate motives behind Henderson’s killing of his victim and his killing her as a witness.” (Emphasis in original.) The original opinion continued:

In other words, the State has not shown, insofar as this aggravating circumstance is concerned, why a more severe sentence should be imposed on Henderson compared to others found guilty of murder, as required by the holding in Zant v. Stephens, 462 U.S. 862, 877 [ 103 S.Ct. 2733, 2742 , 77 L.Ed.2d 235 ] (1983). Here, for example, while the State may have shown that Henderson killed the victim and that the victim was a potential witness against him, the State has not shown necessarily that Henderson killed the victim “for the purpose of preventing report of the crime” as the statute requires. See § 31-20A-5(G). As we stated in Clark, “Many killings of kidnap victims, but by no means all, may be motivated by the desire to escape criminal prosecution.” 108 N.M. at 305 , 772 P.2d at 339 .

Here, it seems to us that Henderson’s intent to conceal his crime was more fully formed on the day after the murder, as shown by his return to the crime scene to wipe off fingerprints, turn on the gas, etc. Had he possessed the intention at the time of the victim’s death to eliminate all traces of his presence from the scene of the crime, it seems more likely that he would have accomplished this on the same night when the victim died, rather than by returning to the scene to continue eradicating evidence of his presence.

The opinion on rehearing concludes that a “plausible” motive for the murder in this case was either to silence a witness or to overcome the resistance of the rape victim. Given the fact that we have upheld, as supported by sufficient evidence, submission to the jury of the aggravating circumstance of murder during the commission of CSP, I do not see how the Court can conclude that there was also sufficient evidence to find, beyond a reasonable doubt, that Henderson murdered the victim for the purpose of preventing her report of the crime. Conceivably, one or the other, but not both, of these aggravating circumstances could be submitted to the jury. The evidence convinces me, however, that the jury could reasonably find, beyond a reasonable doubt, that the victim was murdered during the commission of CSP; but in light of the considerations quoted above from the original opinion, and given the “greater degree of scrutiny” required in death-penalty assessments, I believe that there was insufficient evidence to permit the jury to find that the victim was murdered for the purpose of preventing her report of the crime. See State v. Williams, 304 N.C. 394 , 284 S.E.2d 437, 456 (1981) (evidence of post-killing attempts to avoid detection insufficient for inference that killing was motivated by desire to avoid arrest).