# State v. Jacobs

> New Mexico Supreme Court · August 16, 2000 · 129 N.M. 448

URL: https://www.frixlaw.com/law-library/cases/9796620

## Case

- **Full name:** STATE of New Mexico, Plaintiff-Appellee, v. Shawn JACOBS, Defendant-Appellant
- **Court:** New Mexico Supreme Court
- **Decided:** August 16, 2000
- **Citations:** 129 N.M. 448; 10 P.3d 127
- **Precedential status:** Published
- **Opinion:** Concurring in part by Serna
- **Judges:** Franchini, Serna, Minzner, Maes, Baca, Patricio
- **Cited by:** 162 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by State v. Martinez, 478 P.3d 880 (2020).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9796620

## How later opinions describe it (automated extraction)

- concluding that the defendant's objection at trial that the jury would misuse evidence of escape did not preserve his appellate argument that joinder of the escape charge was improper, and holding that "absent fundamental error, even in a death penalty case issues must be prop…
- stating that the witnesses spoke with the perpetrator and observed him during a fifteen-minute ride in his car and that they described him to a police artist well enough that a penitentiary employee was able to identify the perpetrator from the composite sketch
- finding a protective sweep justified because the “officers saw another 12 person enter the house”; officers knew that the defendant was dangerous and had 13 weapons, and the officers “had no way of knowing who was in the house”
- holding that evidence supported separate conviction of kidnapping where the defendant either restrained victim for purposes of sexual assault or restrained her during a 100-yard walk before he killed her
- holding that eyewitness identification 8 was reliable when witnesses observed the perpetrator during a fifteen-minute car ride 9 and spoke directly with the perpetrator before accepting a ride

## Opinion text

SERNA, Justice (concurring in part and dissenting in part).
{75} I concur in all aspects of the majority’s well-reasoned opinion except Section XIII, discussing the influence of arbitrary factors. I do not believe that the jury’s decision to sentence Defendant to death was influenced by an arbitrary factor. I must therefore respectfully dissent from the majority’s reversal of Defendant’s death sentence.
{76} This Court has previously held that victim impact evidence is permissible under the Capital Felony Sentencing Act. In order to assess a potential constitutional violation in the admission of victim impact evidence, we apply the standard in Payne and determine whether Defendant received a fundamentally unfair trial. See Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991). In Payne, 501 U.S. at 822 , 111 S.Ct. 2597 , the Supreme Court explained the necessity for allowing the sentencing body to hear relevant evidence regarding both the defendant and the circumstances of the crime, including the effect of the murder on the victim’s family.
{77} The testimony concerning the magazine subscriptions was relevant and admissible as victim impact evidence in order to show how the victim’s mother was coping with the murder of the victim. See State v. Allen, 2000-NMSC-002, ¶ 60 , 128 N.M. 482 , 994 P.2d 728 (concluding that victim impact evidence may include a victim’s family members’ “reactions to learning of the victim’s death and their efforts to cope with the loss occasioned by the victim’s death” (citation omitted)); United States v. McVeigh, 153 F.3d 1166, 1217 (10th Cir.1998) (similar). Victim impact evidence is clearly admissible to demonstrate the effect of the murder on the victim’s family. Payne, 501 U.S. at 822 , 111 S.Ct. 2597 (noting that victim impact evidence is relevant in “demonstrating the loss to the victim’s family”). I believe that how the family was managing their grief is properly before the sentencing jury, and the subscription, as a reminder of the victim’s death, was the intentional interference by Defendant in the grieving process of the victim’s mother. For example, a family may testify that neutral objects belonging to the victim remind them of the loss and thus cause pain. Cf. McVeigh, 153 F.3d at 1220 (permitting a family member’s testimony regarding a particular coffee cup and wedding ring which served as a constant reminder of the murder and loss of the victim).
{78} I feel that the evidence allows the victim’s mother to put her grief in context; the magazine subscriptions were particularly painful to the victim’s mother precisely because they were sent by her daughter’s murderer. Just as the grief caused by the receipt of any magazine subscription addressed to the victim can be characterized as a circumstance of the crime because it shows the ongoing pain and suffering resulting from the murder, I believe it is appropriate to include as a circumstance of the crime that the perpetrator sent the magazines to torment the victim’s family. Defendant’s later action of sending the magazines can be described as reprehensible only because of his earlier crime and the initial pain inflicted on the victim’s family. This is not a new harm to the victim’s mother but the reopening of an old wound. It was Defendant’s intentional, heinous crime that caused the victim’s mother’s grief, and his decision to send the magazine subscriptions was a deliberate choice to inflame the mother’s pain from the loss of her daughter. Defendant, through his own intentionally harmful act, should not be permitted to remove from the jury’s consideration the victim’s mother’s efforts to cope with the loss of her daughter and the obstacles to those efforts. “Payne specifically allows witnesses to describe the effects of the crime on their families.” McVeigh, 153 F.3d at 1221 , quoted in Allen, 2000-NMSC-002, ¶ 60 , 128 N.M. 482 , 994 P.2d 728 . I believe that the jury is entitled to hear* victim impact evidence which demonstrates the effect of the murder on the family and the family’s attempt to cope with the loss; the magazine subscriptions were relevant and permissible as a negative reminder of the mother’s loss. See Payne, 501 U.S. at 825 , 111 S.Ct. 2597 (“We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant.”).
{79} As a constitutional matter, Payne establishes a stringent standard for reversal with respect to victim impact evidence: whether it is so unduly prejudicial that the defendant received a fundamentally unfair trial. See Payne, 501 U.S. at 824 , 111 S.Ct. 2597 . Although I believe that trial courts should use great caution in evaluating the admissibility of this type of evidence, I do not believe that the evidence of the magazine subscriptions deprived Defendant of a fair trial. Cf. McVeigh, 153 F.3d at 1220 (permitting victim’s family member to testify that “there was a point where I actually stuck a pistol in my mouth” because of the grief he felt at the loss of a pregnant wife).
{80} Beyond the issue of victim impact evidence, I believe that the evidence is also admissible for another purpose under the CFSA. Under the plain language of the CFSA and this Court’s precedent, I believe that the jury was entitled to consider the magazine subscriptions as evidence of the defendant.
{81} As noted by the State, Section 31-20A-2(B) provides that the jury should consider “both the defendant and the crime” in determining whether to impose a sentence of death. By contrast, Section 31-20A-1(C) states that “all evidence admitted at the trial shall be considered and additional evidence may be presented as to the circumstances of the crime and as to any aggravating or mitigating circumstances.” Although Section 31-20A-1(C) specifically addresses the subject of evidence, I do not believe that it serves as the only source of permissible evidence under the CFSA. Under this Court’s precedent, under the traditional understanding of a sen-tenting proceeding, and under principles of statutory construction, I believe that Section 31-20A-2(B) and our Rules of Evidence authorize evidence of the defendant.
{82} In Clark v. Tansy, 118 N.M. 486, 492 , 882 P.2d 527, 533 (1994), this Court recognized that the prosecution may introduce evidence of future dangerousness in a capital felony sentencing proceeding in its case in chief. Future dangerousness is not evidence that would be admissible during the guilt phase of a trial, it does not constitute a circumstance of the crime, and it is neither a statutory aggravating circumstance nor a statutory mitigating circumstance. Thus, if Section 31-20A-1(C) had been intended by the Legislature to limit the types of evidence admissible in a capital sentencing proceeding, then our discussion of future dangerousness in Clark v. Tansy was erroneous. As demonstrated by the Court’s unanimous holding in this ease regarding evidence of escape, however, this Court properly analyzed the issue of future dangerousness in Clark v. Tansy.
{83} The United States Supreme Court has articulated with clarity the reasons that future dangerousness is admissible in a capital sentencing proceeding even without express statutory authority:
This Court has approved the jury’s consideration of future dangerousness during the penalty phase of a capital trial, recognizing that a defendant’s future dangerousness bears on all sentencing determinations made in our criminal justice system.
Although South Carolina statutes do not mandate consideration of the defendant’s future dangerousness in capital sentencing, the State’s evidence in aggravation is not limited to evidence relating to statutory aggravating circumstances. Thus, prosecutors in South Carolina, like those in other States that impose the death penalty, frequently emphasize a defendant’s future dangerousness in their evidence and argument at the sentencing phase; they urge the jury to sentence the defendant to death so that he will not be a danger to the public if released from prison.
Arguments relating to a defendant’s future dangerousness ordinarily would be inappropriate at the guilt phase of a trial, as the jury is not free to convict a defendant simply because he poses a future danger; nor is a defendant’s future dangerousness likely relevant to a question whether each element of an alleged offense has been proved beyond a reasonable doubt. But where the jury has sentencing responsibilities in a capital trial, many issues that are irrelevant to the guilt-innocence determination step into the foreground. The defendant’s character, prior criminal history, mental capacity, background, and age are just a few of the many factors, in addition to future dangerousness, that a jury may consider in fixing appropriate punishment.
Simmons v. South Carolina, 512 U.S. 154, 162-63 , 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994) (plurality opinion) (citations omitted); accord Tuilaepa v. California, 512 U.S. 967, 976-77 , 114 S.Ct. 2630 , 129 L.Ed.2d 750 (1994) (upholding the consideration of prior criminal activity in a capital sentencing proceeding and stating that “[b]oth a backward-looking and a forward-looking inquiry are a permissible part of the sentencing process”). For these reasons, the State may introduce in its case in chief in the sentencing proceeding evidence of future dangerousness as evidence of the defendant under Section 31-20A-2(B).
{84} In fact, the admissibility of future dangerousness is consistent with the United States Supreme Court’s discussion of the type of evidence which must be available to the juiy in death penalty cases as a constitutional matter. “In order for a capital sentencing scheme to pass constitutional muster, it must perform a narrowing function with respect to the class of persons eligible for the death penalty[, known as the eligibility phase,] and must also ensure that capital sentencing decisions rest upon an individualized inquiry!} known as the selection phase].” Jones v. United States, 527 U.S. 373, 381 , 119 S.Ct. 2090 , 144 L.Ed.2d 370 (1999). “What is important at the selection stage is an individualized determination on the basis of ... the individual and the circumstances of the crime.” Zant v. Stephens, 462 U.S. 862, 879 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983).
Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of ... the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
Woodson v. North Carolina, 428 U.S. 280, 304-05 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976) (plurality opinion) (citations omitted). Thus, with respect to an individualized penalty assessment, a capital felony sentencing proceeding is similar to traditional sentencing proceedings. See State v. James, 109 N.M. 278, 281 , 784 P.2d 1021, 1024 (Ct.App.1989) (“[Jjudges have wide discretion in the sources and types of information used to assist them in determining the kind and extent of punishment to be imposed.”); State v. Montoya, 91 N.M. 425, 426 , 575 P.2d 609, 610 (Ct.App.1978) (“‘Highly relevant-if not essential-to [the sentencing judge’s] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.’ ” (quoting Williams v. New York, 337 U.S. 241, 247 , 69 S.Ct. 1079 , 93 L.Ed. 1337 (1949))); cf. People v. Mulero, 176 Ill.2d 444 , 223 Ill.Dec. 893 , 680 N.E.2d 1329, 1342 (1997) (“[I]t is important [in capital cases] that the sentencing authority possess the fullest information possible with respect to the defendant ] ... and the circumstances of the particular offense. The only requirement regarding admissibility of evidence at this stage is that it be relevant and reliable, the determination of which lies within the sound discretion of the trial judge.” (citations omitted)).
{85} I believe that the Legislature was aware of the traditional considerations applicable in sentencing proceedings, as well as the defendant’s constitutional right to present character evidence, at the time it enacted Section 31-20A-2(B). See State ex rel. Human Servs. Dep’t (In re Kira M.), 118 N.M. 563, 569 , 883 P.2d 149, 155 (1994) (“We presume the legislature is aware of existing law when it enacts legislation.”). In Allen, for example, this Court held that Section “31-20A-2(B) of the CFSA already provided statutory authority for the admission of [victim impact] evidence in death penalty cases in New Mexico courts prior to the effective date of the crime victim’s rights laws.” Allen, 2000-NMSC-002, ¶ 53 , 128 N.M. 482 , 994 P.2d 728 (emphasis added). Thus, by providing that “both the defendant and the crime” be considered in a sentencing proceeding, I believe that the Legislature intended that relevant evidence concerning the defendant be admissible during a sentencing proceeding in order to enable the jury to make an individualized determination based on the most complete relevant evidence available.
{86} The sentencing jury in a death penalty case is instructed that “[i]n deciding the sentence you must consider all of the evidence admitted at trial and all of the evidence admitted during this sentencing proceeding.” UJI 14-7012 NMRA 2000 (brackets omitted). The jury is told that argument of counsel during opening statements and closing argument is not evidence. UJI 14-7010 NMRA 2000; UJI 14-7012. The jury is further told that it must not consider any information learned about the case outside of the courtroom. UJI 14-7010. Finally, the jury is instructed to determine the sentence based on, inter alia, “both the defendant and the crime.” UJI 14-7030 NMRA 2000. If the jury’s sentencing determination is limited to evidence presented at trial and at the sentencing proceeding, then in order to effectuate the intent of the Legislature that the jury consider “the defendant,” Section 31-20A-2(B), it must be permissible under the CFSA to introduce evidence of the defendant. Otherwise, the Legislature’s reference to “the defendant” in Section 31-20A-2(B) would become mere surplusage. See Katz v. New Mexico Dep’t of Human Servs., 95 N.M. 530, 534 , 624 P.2d 39, 43 (1981) (“A statute must be construed so that no part of the statute is rendered surplusage or superfluous.”). As a matter of statutory construction, I believe the evidence of the magazine subscriptions was admissible as evidence of the defendant under Section 31-20A-20B). 1
{87} It seems to me that the majority’s primary reason for reversing Defendant’s sentence of death is that the evidence of the magazine subscriptions is so prejudicial that it should not have been admitted. Although this is a wholly legitimate concern, I believe it is more appropriately addressed under our Rules of Evidence instead of under the CFSA. Cf. Allen, 2000-NMSC-002, ¶¶ 54-60 , 128 N.M. 482 , 994 P.2d 728 (discussing the applicability of certain evidentiary rules to capital felony sentencing proceedings and concluding that the defendant was not “unfairly prejudiced” by the victim impact evidence introduced by the State).
{88} Under Rule 11-403 NMRA 2000, relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” In order to determine that the trial court erroneously admitted the evidence under Rule 11-403, however, this Court must conclude that the trial court abused its discretion despite the wide latitude which the trial court possesses in such matters. See State v. Chamberlain, 112 N.M. 723, 726 , 819 P.2d 673, 676 (1991) (“The trial court is vested with great discretion in applying Rule 403, and it will not be reversed absent an abuse of that discretion.”). For the following reasons, I do not believe that the trial court abused its discretion in admitting the evidence of the magazine subscriptions.
{89} I agree that the evidence of the magazine subscriptions is prejudicial to Defendant. Nonetheless, the evidence has significant probative value for a number of reasons. First, the evidence is probative of future dangerousness. Because the evidence could demonstrate that Defendant took pleasure in inflicting the pain associated with his initial crime and that Defendant sought to exacerbate the mother’s pain while in prison, the jury would be entitled to infer from the evidence an increased likelihood that Defendant would be dangerous in the future.
{90} Second, Defendant introduced evidence of his character as a child and teenager in order to shift the blame for his actions upon his family and upbringing and to imply that he was not responsible for his actions and is somehow less culpable. At the sentencing hearing, Defendant presented a parade of witnesses who testified that he was a sweet, nonviolent boy in his youth. See NMSA 1978, § 31-20A-6(C) (1979) (capacity to appreciate criminality of his or her conduct as a mitigating circumstance). Throughout the approximately 125 pages of transcript testimony, family members, including his grandfather, parents, step-grandparents, and aunt, testified regarding poor parenting, and some individuals mentioned learning disabilities. This is in contrast to a mere thirteen pages of victim impact testimony from the victim’s mother, and four pages of victim impact testimony from a family friend of the victim’s mother. Further, a defense witness testified that he knew Defendant between 1988 and 1990, approximately four years prior to the murder, and that he did not “see hostility” or a “temper” in Defendant, and that “kids made mistakes.” Defendant thus placed the issue of his character before the jury, although defense counsel obviously wished to limit the evidence to Defendant as a child and as a teenager, and I believe the State was entitled to rebut the testimony through which Defendant attempted to place the blame for his actions upon his family and upbringing.
{91} The magazine subscriptions demonstrated that Defendant was morally culpable for the murder and continued to inflict pain and suffering associated with the murder. Cf. State v. Cooper, 151 N.J. 326 , 700 A.2d 306, 344 (1997) (testimony of a psychiatrist properly admitted to rebut background and traumatic childhood as mitigating circumstances). This evidence placed Defendant’s assertions that he was a “sweet boy” in their proper context.
{92} Third, under the CFSA, Defendant was entitled to introduce as a mitigating factor evidence of a likelihood that he could be rehabilitated. Section 31-20A-6(G). Defendant in fact chose to do so. Defendant presented testimony that he had been seeking redemption. Defense counsel argued to the jury that Defendant was “a sweet little boy,” who “exaggerates,” and that in this case “this story is about a boy who, when he’s punished, invents for himself, a place where he is the king, where he is the most important, where he is in charge of everything.” She argued that he “invent[ed] himself in response to a life of punishment and loneliness.” Defense counsel also asked the jury whether “a killing, another death [is] really a fitting legacy for a young woman’s life?” She argued that Defendant was not “beyond redemption, that he has not all his life been who you may think he is now,” that he was once a sweet two-year-old, and that “[e]ven as recently as five or six years ago,” his actions are those of a “young man who is still seeking redemption.” By saying that Defendant is not beyond redemption, I believe that Defendant was attempting to invoke as a mitigating circumstance a likelihood that Defendant could be rehabilitated. The State should be permitted to respond to this argument. The magazine subscriptions are relevant to rebut Defendant’s suggestion of amenability to rehabilitation.
{93} Based on the considerable probative value of this evidence, I do not believe the trial court abused its discretion in concluding that the probative value was not substantially outweighed by any unfair prejudicial impact. See State v. Rojo, 1999-NMSC-001, ¶ 48 , 126 N.M. 438 , 971 P.2d 829 (“In determining whether the trial court has abused its discretion in applying Rule 11-403, the appellate court considers the probative value of the evidence, but the fact that some jurors might find this evidence offensive or inflammatory does not necessarily require its exclusion.”) (citation omitted); cf. State v. Ard, 332 S.C. 370 , 505 S.E.2d 328, 332 (1998). The trial court’s decision to admit the evidence concerning the magazine subscxiptions does not contravene constitutional principles, statutory requirements, or evidentiary rules. This evidence was properly before the jury, and I do not believe that the jury’s sentencing determination was based on an arbitrary factor or was the product of passion or prejudice. Therefore, I respectfully dissent from Section XIII of the majority opinion discussing the influence of arbitrary factors. I would affirm Defendant’s sentence.
. Notwithstanding this construction of the CFSA, I do not believe that it is clear that the Legislature would have the authority to prescribe evidentiary rules for a sentencing proceeding; once the Legislature made the substantive policy choice in Section 31-20A-2(B) that the jury is to consider "the defendant and the crime,” any statutory limitation on the admissibility of evidence relevant to these issues would be in danger of violating the principle of separation of powers due to an inconsistency with the Rules of Evidence. See Allen, 2000-NMSC-002, ¶ 54 , 128 N.M. 482 , 994 P.2d 728 (discussing the applicability of the Rules of Evidence to a capital felony sentencing proceeding and citing Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 311-12 , 551 P.2d 1354, 1358-59 (1976) for the proposition that “the power to prescribe rules of evidence and procedure is constitutionally vested in this Court”). "It is, of course, a well-established principle of statutory construction that statutes should be construed, if possible, to avoid constitutional questions.” Lovelace Med. Ctr. v. Mendez, 111 N.M. 336, 340 , 805 P.2d 603, 607 (1991).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796620. Public record. Not legal advice.