State v. Clark

SOSA, Chief Justice, specially concurring.

I concur in the majority opinion insofar as it affirms Clark’s conviction for kidnapping and first-degree murder. I dissent, however, from that portion of the opinion which affirms the jury’s imposition of the death penalty. In my estimation, the trial court erred in not sentencing Clark on the kidnapping charge and in not informing the jury, prior to its deliberations on the death penalty, as to the sentence which Clark would have received on the kidnapping charge. I disagree with the majority’s conclusion that, “The sentencing prerogatives of the trial judge, or the possible length of a life sentence, simply have no relevance under Eighth Amendment standards as they have developed so far.”

As I read the Supreme Court’s decision in Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), the length of time a convicted capital felon would serve in prison for another crime for which he has been convicted should, at the request of the defendant, be considered by the jury as a mitigating factor when the jury deliberates on the death penalty. The Court wrote:

[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer * * * not be precluded from considering as a mitigating factor any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis of a sentence less than death.

Id., at 604 , 98 S.Ct. at 2964 (emphasis in original).

The fact that Clark already had been convicted of a kidnapping is unquestionably a part of his “record.” The fact that his conviction for kidnapping is not a salutary part of his record, in the same sense that facts concerning his character or good conduct might be, is irrelevant. It seems to me that the Court in Lockett v. Ohio was concerned both about the nature of the information proffered to the jury in mitigation as well as about the motivation behind the defendant’s proffering the information —namely, to persuade the jury to impose a sentence less than death. In my opinion, Clark’s attempt to proffer his sentence on the kidnapping conviction was part of his record and was intended to persuade the jury to return a sentence other than death. Therefore, under Lockett, the trial court should have imposed that sentence prior to the jury’s deliberation on the death penalty; and the jury then should have been instructed on the sentence.

The Supreme Court has held that consideration by a jury of a convicted capital felon’s future dangerousness and the relationship of that dangerousness to the length of time he must serve in prison before he can be paroled is a proper subject for the jury’s deliberation when it sits to decide whether the defendant should receive the death penalty. California v. Ramos, 463 U.S. 992 , 103 S.Ct. 3446 , 77 L.Ed. 2d 1171 (1983); Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976). Here Clark wanted the jury to know that he faced a lengthy prison term for kidnapping. If the trial court would have imposed the basic eighteen-year sentence for kidnapping, it could have increased that sentence by one-third, for a sum of twenty-four years. In addition, the trial court could have enhanced that sentence by another two years, for a sum of twenty-six years. If the court then ordered that sentence to be served consecutively with Clark’s previous twenty-four year sentence on the earlier conviction, and if these sentences were made known to the jury, the jury then would have known, before it began its deliberations on the death penalty, that Clark already had been sentenced to fifty years in prison. Such information clearly would have been a mitigating factor, under Lockett, that may have changed the outcome of the jury’s decision on the death penalty.

In addition, I would make it mandatory in a situation such as this one, where a convicted capital felon asks that the jury be informed as to the length of time to which he has been sentenced on another crime, for the trial court to instruct the jury on the provisions of NMSA 1978, Section 31-21-10 (Supp.1988), to the effect that, “An inmate of an institution who was sentenced to life imprisonment as the result of the commission of a capital felony becomes eligible for a parole hearing after he has served thirty years of his sentence.” NMSA 1978, § 31-21-10(A). I am aware that NMSA 1978, Section 33-2-34 (Repl. Pamp.1987), provides for certain “meritorious deductions” to be subtracted from a convicted felon’s time served, but I read that statute as not affecting the more narrowly drafted provisions of Section 31-21-10, so that a capital felon who is sentenced to life imprisonment may not be eligible for parole before he has served thirty years.

This information too should have been presented to the jury deliberating over Clark’s sentence. Had the jury known both of Clark’s possible fifty-year sentence for previous convictions, and of the mandatory thirty-year imprisonment under a life sentence, they then would have known that Clark faced the possibility of eighty years in prison, or a true life term. Then the jury would have been faced with an actual alternative between imposition of the death penalty and imposition of a life sentence. As it happened, however, especially after the bewildering testimony presented at trial, and after the prosecutor’s closing argument to the effect that Clark would certainly be released from prison, the jury’s choice was not one of life vs. death, but of death vs. releasing a dangerous felon in perhaps a short period of time after he had entered the penitentiary. It was constitutionally impermissible to present this latter choice to the jury.

I agree with the Court’s reasoning in California v. Ramos: “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” 463 U.S. at 1004 , 103 S.Ct. at 3455 . Here the jury did not have all relevant information before it, and because-'the trial court did not give it this information on Clark’s request, the court committed fundamental error. “States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the [death] penalty.” McCleskey v. Kemp, 481 U.S. 279, 306 , 107 S.Ct. 1756, 1774 , 95 L.Ed. 2d 262 (1987). “[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination,” Caldwell v. Mississippi, 472 U.S. 320, 329 , 105 S.Ct. 2633, 2639 , 86 L.Ed.2d 231 (1985) (quoting California v. Ramos, 463 U.S. 992, 998-999 , 103 S.Ct. 3446, 3451-52 , 77 L.Ed.2d 1171 (1983)). In the present case I find the majority’s scrutiny of the jury’s sentencing determination to be constitutionally inadequate. I would reverse the death sentence and remand this case to the trial court for a new sentencing hearing to be conducted in a manner that is not inconsistent with the above.