Appendix — Garcia v. New Mexico

COURT OF THE UNITED STATES

1982

IN THE SUPREME

October Term,

| RICHARD REYNALDO GARCIA,

Petitioner,

a ae ix RECEIVED

MAR 21.1983

Oreser ve Ot LLERK

Suparyr ower ne

_——— ve

_ Bulletin

Advance Opinions of

the Supreme Court and

the Court of Appeals

. Santa Fe, New Mexico

Attorneys for Appellee

-————" . ——— ee

OPINION

“ae. © oe

RIORDAN, Justice.

Richard Reynaldo Garcia (Defendant)

was convicted of two murders in the

first degree for which he received a

sentence of life imprisonment and a

sentence of death. Defendant appeals.

We affirm.

The issues on appeal are:

Z. Whether Corrections Officer

Louis Jewett's statement was properly

introduced into evidence as a dying

declaration.

II. Whether references to the "Los

Carnales" elicited by the State during

testimony and emphasized by the State

during closing arguments deprived

Defencant of a fair trial.

“ ae ‘ .

_-From the New Mexico Supreme Court om 24 Pe. is rites se 232 p bss

é ‘3 ‘i ™ , ; : ait . ee an . ’ " > 2 .

nS ae STATE OF NEW MEXICO,

oe vi 8 ‘. ‘Plaintiff-Appellee, |

, | i A ‘versus

’ ' RICHARD REYNALDO GARCIA,

er : . . Defendant-Appellant.

=e No, 14029 (filed January 20, 1983)

om" . APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY .

y > pera FRANCKE, Judge 4

_ JEFF BINGAMAN, Attorney General MICHAEL DICKMAN, Appellate Defender

» ANTHONY TUPLER, Assistant Attorney LYNNE CORR, Assistant eerraed ,

General Defender

Santa Fe, New Mexico

Attorneys for Appellant

IV. Whether the jury instructions

used for sentencing were inconsistent

and confusing, thereby providing

inadequate standards for the jury to

decide between the death penalty and

life imprisonment.

V. Whethes Defendant's sentence of

death is excessive and/or

disproportionate under the

circumstances.

Defendant was convicted of killing

Corrections Officer Louis Jewett

(Jewett) and inmate Bobby "Barbershop"

Carabajal Garcia (Bobby Garcia). On

February 26, 1981, at approximately

eight o'clock in the evening,

Defendant, @ southside porter in

cellblock three (f.n. 1), asked Jewett

if he could go to the northside of

III. Whether New Mexico's Capital cellblock three to take some books to

Felony Sentencing Act, Sections 31-20A- inmate Jesse Trujillo (Trujillo) (f.n.

1 through 31-20A-6, N.M.S.A. 1978 2). The northside grill was opened for

(Repl. Pamp. 1981), is unconstitutional Defendant. The following events lasted

because it sanctions cruel and unusual only 4 few minutes. Defendant walked

punishment. or._ran_into the northside tier.

Section B 139

Supreme Court Opinions, Justice Riordan

* Trujillo was outside his cell because

he was returning from the showers.

Bobby Garcia, a northside porter in

cellblock three, was out on the main

northside tier, talking to another

inmate. Jewett was heard yelling, "You

guys stop that." A brief commotion

ensued among Trujillo, Defendant and

Bobby Garcia. Jewett then ran towards

the commotion. Bobby Garcia was next

seen running towards the officers’

station. Bobby Garcia, bleeding, ran

through the open grill into the guard

station. He was followed by Defendant,

Trujillo and Jewett. Trujillo and

Defendant were armed with “shanks”.

(f.n. 3) Bobby Garcia ran to the

southwest corner of the station and

picked up a plastic trash can to try to

fend off Trujillo and Defendant, who

were both stabbing at Bobby Garcia.

Jewett jumped on Trujillo from behind

and fastened a “bearhug” on him. At

that point, Defendant turned his

attention to Jewett and while Jewett

was holding on to Trujillo, Defendant

stabbed Jewett in his side or lower

back. Momentarily, everything came to

@ standstill. Then, Bobby Garcia ran

towards the basement stairs. Jewett

continued to struggie as both Trujillo

and Defendant stabbed at him. Two

officers yelled at Jewett to join them

behind the northside grill, but Jewett

collapsed. The southside grill was

then opened and both Defendant and

Trujillo entered with blood on their

hands and the shanks that they held.

When other officers arrived, Defendant

approached the grill and stated to

Captain Joe Baca (f.n. 4), "Baca, we

didn't mean to get the officer but he

got in the way."

Bobby Garcia and Jewett were taken

from the Penitentiary to the hospital.

Bobby Garcia died shortly thereafter

from multiple stab wounds to his chest

and back. Jewett died approximctely

one month later trom the injuries he

sustained.

I. OFFICER JEWETT'S STATEMENT

After the stabbing, Jewett was

taken to Saint Vincent Hospital in

Santa Fe, New Mexico. He underwent

surgery and was taken to the intensive

care unit. On March 6, 1981, Jewett was

moved to a regular ward because his

condition started to show signs of

improvement and stability. The

Vol, 22, No. 6, February 10, 1983

attorneys for Defendant and the State

were scheduled to take Jewett's

deposition on March 26, 1981. However,

the deposition was cancelled because

Jewett's condition worsened. On April

2, 1981, upon learning that Jewett's

health was rapidly deteriorating, an

Assistant District Attorney and Officer

Ross of the New Mexico State Police,

went to the hospital and obtained a

statement from Jewett. Jewett died on

April 4, 1981.

Jewett's tape recorded statement

was later’ transcribed. In his

Statement, Jewett stated that he was

trying to break up a fight among

Defendant, Trujillo and Bobby Garcia.

He saw both Defendant and Trujillo with

shanks. Both were stabbing at Bobby

Garcia. Jewett stated that while he

was trying to break up the fight,

Defendant stabbed him in the back with

a shank.

At oral argument, both attorneys

agreed that the recently decided case

of STATE v. QUINTANA, 98 N.M. 17, 644

P.2d 531 (1982), controls this issue of

the admissibility of the dying

declaration. In QUINTANA, we held that

a dying declaration is admissible, when

looking at the particular circumstances

of a case, if there is a showing that

the statement was made under a sense of

“impending death".

In the present case, Officer Ross

testified that at the time of the

interview, Jewett looked pale and thin.

During the interview, Jewett was asked,

"Did they discuss your chances ot

improvement?", to which he answered,

"Oh, yes, nil.” Jewett was again

asked, "Mr. Jewett, you understand what

your chances of recovery are?", and

Jewett answered, "Nil." Therefore, the

circumstances surrounding the taking of

Jewett's statement and the language in

the statement itself, are sufficient to

show that Jewett believed his death was

imminent.

The admissibility of such evidence

is within the sound discretion of the

trial court, and its ruling will be

upheld unless there is a showing of an

abuse of that discretion. STATE v.

SMITH, 92 N.M. 533, S91 P.2d 664

(1979). We find that there was no abuse

of the trial court's discretion in

admitting Jewett's statement.

II. LOS CARNALES

140

Section B

Vol, 22, No. 6, February 10, 1983

At trial, the State called to the

stand cellblock three inmate Danny

Macias (Macias). Before the start of

Macias’ testimony, Defendant mude a

MOTION IN LIMINE (f.n. 5) to prohibit

any mention of "Los Carnales" by Macias

during the trial. The trial court

denied the motion and allowed the

evidence for the purpose of showing

motive. During Macias’ testimony,

Defendant objected to all the testimony

concerning “Los Carnales", asserting

that such testimony was irrelevent and

prejudicial.

Macias testified that Defendant had

come by his cell in the early evening of

February 26, 1981, and briefly told

Macias that he (Defendant) was going to

kill Bobby Garcia. Defendant then came

by about ten minutes later and again

stated that he was going to kill Bobby

Garcia. At this time, Macias asked

why, to which Defendant answered, “he

[Defendant] was talking to _ [Bobby

Garcia). that he [Defendant] was

going to kill Lieutenant Mayfield (f.n.

6) if Lieutenant Mayfield testified

against [him]. . He [Bobby Garcia]

embarrassed me by saying that I wasn't

going to do anything. I am going to

show him that ‘Los Carnales' are here

to stay, we're going to run this

place." Macias testified that "Los

Carnales" was 4 gang inside the

Penitentiary in which he, Defendant,

Trujillo and three others were members.

Macias further stated that the gang's

purpose was to contro] the Penitentiary

by controlling the inmates and the drug

trade within the Penitentiary.

Sam Mascarenas, an alleged member

of “Los Carnales" and an inmate in

cellblock three, testified as a defense

witness. When asked about “Los

Carnales", he testified that it was a

low-rider's club that he was trying to

start in cellblock three for the "guys

in population”. However, the

Penitentiary would not approve the

proposed club.

Defendant also testified about this

issue when he took the stand. He

testified that. he was a member of “Los

Carnales", @ low-rider car club in

Albuquerque in 1977, and that he tried

to start « low-rider car club in the

Supreme Court Opinions, Justice Riordan

membership in the alleged club, was

tattooed on him before his

incarceration, Defendant further

testified that he was acting in self-

defense in the stabbing of Bobby Garcia

because "|Bobby Garcia] was after him"

for not doing some of Bobby Garcia's

porter duties.

On rebuttal, the State called

cellblock three inmate Nick Sena

(Sena). Sena testified that he was a

member of "Los Carnales" and that "Los

Carnales" was not a car club. He also

testified that membership in "Los

Carnales" is indicated by a tattoo,

which he showed the court.

In closing arguments, the State

made reference to "Los Carnales" by

Stating that Defendant was a member,

that the reason Defendant wanted to

kill Bobby Garcia was because Bobby

Garcia had insulted "Los Carnales", and

that the gang was organized to take

over the Penitentiary.

On appeal, Defendant claims that

the testimony concerning "Los Carnales"

was irrelevant and so prejudicial that

he was deprived of a fair trial.

N.M.R. Evid. 401, N.M.S.A.

states:

"Relevant evidence” means evidence

having any tendency to make the

existence of any fact that is of

consequence to the determination

of the action more probable or less

probable than it would be without

the evidence.

Defendant claims that the evidence

1978,

concerning "Los Carnales" was

irrelevant. The trial court allowed

the evidence to show motive. There is

evidence to support the theory that the

reason the stabbing occurred was

because Bobby Garcia had insulted

Defendant's club, "Los Carnales".

Therefore, the evidence was relevant

and could properly be admitted under

Rule 404(b), N.M.S.A. 1978, to show

motive.

N.M.R. Evid. 404(b) states:

Evidence of other crimes, wrongs or

acts... may... be admissible

for . . . PROOF OF MOTIVE,

opportunity, intent, preparation,

plan, knowledge, identity or

absence of mistake or accident.

Penitentiary for the "general [Emphasis added. }

population”. He stated that his “Los Rule 404(b) allows the admissibility of

Carnales" tattoo, which indicates motive testimony subject to the

Section RB

141

Supreme Court Opinions, Justice Riordan

* balancing requirement of N.M.R. Evid.

403, N.M.S.A. 1978. STATE v. LOVATO,

91 N.M. 712, 580 P.2d 138 (Ct. App.),

CERT. DENIED, 91 N.M. 751, 580 P.2d 972

(1978). Rule 403 states:

Although relevant, evidence may be

excluded if its probative value is

substantially outweighed by the

danger of UNFAIR PREJUDICE,

confusion of the issues or

misleading the jury, or by

considerations of undue delay,

waste of time or needless

presentation of cumulative

evidence. [Emphasis added. }

This balancing approach is required

of the trial court in determining the

admissibility of the evidence. STATE

v. LOVATO, SUPRA. The fact that

competent evidence may tend to

prejudice a defendant is not grounds in

and of itself for exclusion of that

evidence. STATE v. HOGERVORST, 90 N.M.

580, 566 P.2d 628 (Ct. App.), CERT.

DENIED, 90 N.M. 636, 567 P.2d 485

(1977). The trial court must determine

whether the probative value of the

evidence is outweighed by its

prejudicial effect. ID. In doing

this, the trial court must be sensitive

to the potential prejudice that is

always inherent in evidence of a

defendant's prior wrong acts. UNITED

STATES v. LUCERO, 601 F.2d 1147 (10th

Cir. 1979). The trial court has a duty

to excise evidence of uncharged acts if

it can be done without destroying the

relevancy of the evidence which

addresses the charges, defenses or

issues. ID. However, if the evidence

is so intertwined, the trial court may

allow the evidence. ID. Im LUCERO, the

defendant was charged with transporting

forged securities in interstate

commerce. The defendant had come into

possession of approximately 900 blank

money orders that had been stolen from

a bank. Defendant transferred 4

quantity of the money orders to 4

Mexican drug dealer in exchange for

drugs. The defendant's partners in the

transaction had concealed thirteen

money orders that were forged and

passed directly by the partners. The

defendant's charges resulted from these

thirteen money orders. At trial,

evidence of the Mexican drug

transaction was allowed. On appeal,

defendant claimed that the _ tape

Vol. 22, No. 6, February 10, 1983

recorded evidence admitted at trial

concerning the drug transaction was

prejudicial because it referred to an

unrelated crime. The appellate court

agreed with the trial court's

determination that because the drug

transaction was so intertwined with the

money order discussion, the evidence

could not have been reasonably excised.

The trial court allowed” the

testimony concerning "Los Carnales" to

show motive. The evidence concerning

“Los Carnales" is so intertwined with a

possible motive of Bobby Garcia's death

that the trial court could not have

excised it. The trial court has the

discretion to admit or exclude

evidence. STATE v. DAY, 91 N.M. 570,

577 P.2d 878 (Ct. App.), CERT. DENIED,

91 N.M. 491, 576 P.2d 297 (1978). We

will not set aside the decision of the

trial court unless there was a clear

abuse of that discretion. ID. We find

that the trial court did not abuse its

discretion in allowing this testimony.

III. DEATH PENALTY

Defendant contends that the death

penalty constitutes cruel and unusual

punishment under the United States’ and

New Mexico's Constitutions. U.S.

CONST. amend. VIII and XIV; N.M.

Const., Art. I2, Sec. 13. (£.a. 7)

In the landmark decision of FURMAN

v. GEORGIA, 408 U.S. 238 (1972), the

United States Supreme Court discussed

the death penalty. The issue before

the Court was whether the death

penalty in the cases (f.n. 8) before

the Court, constituted cruel and

unusual punishment in violation of the

Eighth and Fourteenth Amendments. The

opinion held that the carrying out cf

the death penalty in these particular

cases did constitute crue] and unusual

punishment. Each Justice wrote 4

separate opinion. Four of the Justices

held that capital punishment is not

unconstitutional PER SE; three

Justices, while agreeing that the

particular state statutes in FURMAN

were invalid as applied, left open the

question of whether capital punishment

may be imposed; and the other two

Justices felt that the death penalty

violated the Eighth Amendment.

In GREGG v. GEORGIA, 428 U.S. 153

(1976), the Court again addressed the

death penalty question and held that

"the punishment of death does not

7

Sartinn A

7

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(~

Vol. 22, No. 6, February 10, 1983

invariably violate the Constitution."

ID. at 169. That same year in STATE OF

NEW MEXICO ex rel. SERNA v. HODGES, 89

N.M. 351, 552 P.2d 787, OVERRULED ON

DIFFERENT GROUNDS, 89 N.M. 408, 553

P.2d 688 (1976) and STATE v. RONDEAU,

89 N.M. 408, 553 P.2d 688 (1976), we

held that the death penalty is not

cruel and unusual punishment PER SE

within the prohibition of the Eighth

and Fourteenth Amendments of United

States Constitution or Article II,

Section 13 of the New Mexico

Constitution. However, in STATE v.

RONDEAU, . SUPRA, we held that New

Mexico's capital punishment statute was

unconstitutional because the statute

imposed @ mandatory death sentence.

The United States Supreme Court in

WOODSON v. NORTH CAROLINA, 428 U.S. 280

(1976) and ROBERTS v. LOUISIANA, 428

U.S. 325 (1976), held that mandatory

death sentences which leave neither the

judge nor the jury discretion to impose

@ lesser sentence, violated the Eighth

Amendment prohibition against cruel and

unusual punishment. Therefore, we

continue to hold that the death

penalty, in and of itself, does not

violate the United States’ or New

Mexico's Constitutions as cruel and

unusual punishment.

We next

constitutionality

current capital

look at the

of New Mexico's

punishment statutes.

Sections 31-20A-1 through 31-20A-6.

These statutes were modeled after

Similar statutes in Florida, Georgia

and Texas. FLA. STAT. Section 921.141

(1981); GA. CODE ANN. Section 27-2534.1

and Section 27-2537 (Cum. Supp. 1982);

TEXAS STAT. ANN. art. 37.071 (Vernon

1981). (f.n. 9) These states’ statutes

have withstood constitutional scrutiny

by the United States Supreme Court.

PROFFITT v. FLORIDA, 428 U.S. 242

(1976); GREGG v. GEORGIA, SUPRA; JUREK

v. TEXAS, 428 U.S. 262 (1976). These

states’ statutes generally provide for,

@s ours does:

1) a bifurcated hearing wherein the

death penalty is considered

‘separately, after a guilty verdict

has been rendered in a capital

felony case [Section 31-20A-1];

2) @ consideration of aggravating

and mitigating circumstances

concerning the murder [Section 31-

20A-2]; and,

Supreme Court Opinions, Justice Riordan

3) @n automatic and complete

appellate review of any case

involving the death penalty

[Section 31-20A-4].

Therefore, we uphold the

constitutionality of New Mexico's

current capital punishment statutes.

IV. JURY INSTRUCTIONS

The jury was given N.M.U.J.I. Crim.

39.31 and 39.33, N.M.S.A. 1978 (Repl.

Pamp. 1982). U.J.I. Crim. 39.31,

states:

The law provides that you cannot

sentence the defendant to death

unless you are satisfied bevond a

reasonable doubt that the murder

was committed under one or more of

the aggravating circumstances

charged. The burden is always on

the state to prove beyond a

reasonable doubt that the murder

was committed under one or more of

the aggravating circumstances

charged and that the mitigating

circumstances do not outweigh the

aggravating circumstances.

It is not required that the state

prove this beyond all possible

doubt. The test is one of

reasonable doubt. A reasonable

doubt is a doubt based upon reason

and common sense - a kind of doubt

that would make a reasonable person

hesitate to act in the graver and

more important affairs of life.

The pertinent part of U.J.I.

39.33, states:

If you have unanimously agreed on a

finding that [the aggravatin,y

circumstance charged was] [one or

more of the aggravating

circumstances charged were]

[Footnote omitted.] present, you

must then consider the penalty to

be imposed in this case. In

determining the penalty to be

imposed you must consider all of

the evidence admitted during this

proceeding and the evidence

admitted during trial in which the

defendant was found guilty of

murder. You must then consider

whether there are any mitigating

circumstances.

If you find there are mitigating

circumstances, you must then weigh

Crim.

the mitigating circumstances

against the [aggravating

circumstance] [one or more

Section B

143

Supreme Court Opinions, Justice Riordan

aggravating circumstances]

[Footnote omitted.] you have found

in this case. After weighing the

@ggravating circumstances and the

mitigatirg circumstances, weighing

them against each other, and

considering both the defendant and

the crime, you shall determine

whether the defendant should be

sentenced to death or life

imprisonment.

If you fail to unanimously agree

that the death penalty should be

imposed, @ penalty of i 4\life

imprisonment will be imposed by the

court.

Under U.J.1. Crim. 39.31, the jury

is required to make two determinations:

FIRST, whether the State has proved

beyond a reasonable doubt that the

murder was committed under the

Oggravating circumstance(s) (f.n. 10)

as charged, and SECOND, whether the

mitigating circumstances do not

outweigh the aggravating

circumstance(s). Once these two

determinations are made, the jury is

further instructed under U.J.I. Crim.

39.33, that they must weigh the

aggravating circumstance(s) and

mitigating circumstances and consider

the defendant and the crime charged in

making @ determination of a sentence of

either death or life imprisonment.

Defendant claims that the jury

instructions are in conflict with each

other because U.J.I. Crim. 39.31

requires proof that the aggravating

circumstance(s) are not outweighed by

the mitigating circumstances and U.J.I.

Crim. 39.33 requires a weighing of the

aggravating circumstance(s) and

mitigating circumstances against each

other. The jury was instructed at the

trial and sentencing stage to consider

the jury instructions as a whole and

not to pick out parts of one

instruction and disregard others.

N.M.U.J.I1. Crim. 39.42, N.M.S.A. 1978

(Repl. Pamp. 1982). These instructions

clearly require the jury, in weighing

the aggravating circumstance(s) against

the mitigating circumstances, to find

that the aggravating circumstance(s)

outweigh the mitigating circumstances

before the penalty of death can be

imposed.

Defendant also argues that U.J.I.

Crim. 39.33 does not provide "clear and

Vol, 22, No. 6, February 10, 1983

objective standards" which are

“rationally reviewable". In GODFREY v.

GEORGIA, 446 U.S. 420, 428 (1980), the

United States Supreme Court stated that

a sentencer's discretion must be

channeled by ‘clear and objective

standards’ that provide ‘specific and

detailed guidance’ and that ‘make

rationally reviewable the process for

imposing a4 sentence of death.'"

However, this case dealt with Georgia's

then aggravated circumstance statute in

which @ person convicted of murder

could have been sentenced to death if

it was found beyond a reasonable doubt

that the offense "was outrageously or

wantonly vile, horrible or inhuman in

that it involved torture, depravity of

mind, or an aggravated battery to the

victim.” ID. at 422. The Court stated

that this was too vague a description

for an aggravated circumstance because

any person could fairly characterize

almost every murder as "outrageously or

wantonly vile, horrible and inhuman.”

The Court stated that it will not

permit a subsection of an aggravated

circumstance statute to simply become a

"catchall" for cases which do not fit

within any of the other subsections.

However, this is not the case with New

Mexico's aggravated circumstance

Statute. Section 31-20A-5 specifically

lists the aggravated circumstances that

allow for the death penalty.

We can find NO United States

Supreme Court case which states that

mitigating circumstances must be

specified in a “clear and objective

standard". On the contrary, the United

States Supreme Court has held that ina

sentencing proceeding, a jury or judge

must take into account the

characteristics of the person as well

as the circumstances of the offenses.

EDDINGS v. OKLAHOMA, 455 U.S. 104

(1982); LOCKETT v. OHIO, 438 U.S. 586

(1978). Individual consideration must

be given in a death” sentencing

proceeding. Therefore, @ SUBJECTIVE

STANDARD must be used for this review.

We find no fault with these jury

instructions.

Defendant did not object to these

jury instructions at the time of trial.

He raises this objection for the first

time on appeal. We have repeetedly

held that objections to jury

instructions cannot be raised for the

144

feartinn R

Vol, 22, No. 6, February 10, 1983 ;

first time on appeal when the defendant

did not object to the instructions at

trial. STATE v. NOBLE, 90 N.M. 360, 563

P.2d 1153 (1977); STATE v. RODRIGUEZ,

81 N.M. 503, 469 P.2d 148 (1970).

Florida has recently ruled on this

issue when a4 death sentence is

involved. In VAUGHT v. STATE, 410 So.

2d 147 (Fla. 1982), the defendant

argued that the court failed to provide

the jury with complete instructions on

aggravating and mitigating

circumstances. The Florida Supreme

Court held that "[sJince [defendant]

made no objection to the instructions

below, this point may not be raised on

appeal.” ID. at 150. Also, the United

States Supreme Court in a habeas corpus

proceeding, has held that a defendant's

failure to object to jury instructions

precludes a challenge to the

constitutionality of those instructions

in a federal habeas proceeding. ENGLE

v. ISAAC, U.S. __, 102 S. Ct. 1558

(1982).

Defendant, however, claims that

these jury instructions can be attacked

for the first time on appeal because of

fundamental error pursuant to N.M.R.

Crim. App. 308(b), N.M.S.A. 1978 and

Section 31-20A-4(B). New Mexico's

Rules ct Evidence do not provide a

different standard for admission of

evidence or review of error simply

because the possible punishment is

death. Therefore, we continue to hold

that objections to jury instructions

CANNOT be raised for the first time on

appeal.

V. PROPORTIONALITY REVIEW

Defendant argues that his sentence

of death was "excessive and/or

disproportionate” in comparison to the

similar crime of Trujillo who received

@ sentence of life imprisonment.

The Capital Felony Sentencing Act,

Section 31-20A-4(B) and the pertinent

part of (C), states:

B. In addition to the other

matters on appeal, the supreme

court shall rule on the validity of

the death sentence.

C. The death penalty shall not be

imposed if:

(4) the sentence of death is

excessive or disproportionate to

the penalty imposed in SIMILAR

CASES, considering both THE CRIME

Supreme Court Opinions, Justice Riordan

AND THE DEFENDANT. [Emphasis

added. ]

This Section represents an act of

the Legislature which we are required

to interpret in accordance with sound

rules of statutory construction.

Section 31-20A-4(B) states that only

this Court can decide if a sentence of

death is excessive or disproportionate.

In Section 31-20A-4(C), the Legislature

directs this Court to review the death

sentence to see if "the sentence of

death is excessive or disproportionate

to the penalty imposed in similar

cases, considering both the crime and

the defendant". We assume that the

Legislature means that in similar

cases, considering both the crime and

defendant, a defendant convicted of

first degree murder under a4 specific

@ggravated circumstance should not be

put to death if another defendant or

other defendants, convicted of murder

under the same aggravated circumstance

is given life imprisonment, unless

there is some justification.

Therefore, we adopt the following

guidelines for review under this

Section.

1. We will review this issue only

when raised on appeal.

2. In our review, we will consider

only New Mexico cases in which a

defendant has been convicted of

capital murder under the SAME

AGGRAVATING CIRCUMSTANCE(s). (f.n.

11)

3. Only those New Mexico cases in

which a defendant was convicted

under the same aggravating

circumstance(s) and then received

EITHER the death penalty OR life

imprisonment and whose conviction

and sentence have been upheld

previously by this Court, will be

considered appropriate for

comparison.

4. We will review the record and

compare the facts of the offense

and all other evidence presented by

way of aggravation or mitigation to

determine whether the sentence is

excessive or disproportionate.

In adopting these guidelines, we

have reviewed the United States Supreme

Court opinions that have discussed the

issue of proportionality. GREGG v.

GEORGIA, SUPRA, which first upheld the

constitutionality of the death penalty,

Section B

145

Supreme Court Opinions, Justice Riordan

_ addressed the issue of excessiveness of

the punishment in relation to the death

penalty. Under GREGG, a review of the

punishment in the abstract, rather than

in the particular, is to be considered

when inquiring into excessiveness. Two

aspects must be considered in

determining whether a punishment is

excessive and unconstitutional. (f.n.

12) COKER v. GEORGIA, 433 U.S. 584, 592

(1977), stated the requirements of

GREGG as follows:

(1) [The punishment] makes no

measurable contribution to

acceptable goals of punishment and

hence is no.hing more than the

purposeless and needless

imposition of pain and suffering;

or

(2) the punishment is grossly out

of proportion to the severity of

the crime.

When reviewing a sentence under this

test, the Court pointed out that a

judgment under such a review should not

be, or appear to be, merely the

subjective views of an individual

Justice; rather, the Justices have a

duty to review the case on an objective

level. COKER v. GEORGIA, SUPRA.

Whatever our own personal beliefs may

be, the government of the States of the

Union are, "government[s] of laws, and

not of men." MARBURY v. MADISON, 5 U.S.

(1 Cranch) 137, 163 (1803). Attention

must also be given to the public

attitudes concerning a particular

sentence and to its history, precedent,

legislative attitudes and the responses

of the jurors. COKER v. GEORGIA,

SUPRA. GREGG did such an analysis in

determining that the death penalty for

@ deliberate murder was neither a

purposeless imposition of a severe

punishment nor grossly disproportionate

for the crime.

The United States Supreme Court in

GREGG found that the imposition of the

death penalty for the crime of murder

had a long history of acceptance in the

United States and England. At the time

the Eighth Amendment was ratified,

capital punishment was 4 common

sanction in every state. The United

States Supreme Court ropeatcdly has

recognized the appropriateness of the

death penalty. TROP v. DULLES, 356

U.S. 66, 99 (1958) (Chief Justice

Warren wrote "the death penalty has

Vol. 22, No. 6, February 10, 1983

been employed throughout our history,

and, in a day when it is still widely

accepted, it cannot be said to violate

the constitutional concept of

cruelty."); FRANCIS v. RESWEBER, 329

U.S. 459 (1947); IN RE KEMMLER, 136

U.S. 436 (1890); WILKERSON v. UTAH, 99

U.S. 130 (1878). Finally, the

legislatures of at least thirty-five

(35) states have enacted statutes which

provide for the death penalty in at

least some crimes that result in the

death of another person. GREGG v.

GEORGIA, SUPRA at 179-80. Therefore,

the United States Supreme Court

concluded that the death penalty for a

deliberate murder is neither the

purposeless imposition of severe

punishment nor punishment grossly

disproportionate for the crime. GREGG

v. GEORGIA, SUPRA.

The United States Supreme Court has

avoided imposing or suggesting a method

or mode] for state appellate review of

proportionality. STATE v. COPELAND,

ee, | pe a S.E. ___—_ (No.

21808, filed November 10, 1982). This

is obvious from the fact that the Texas

statute, scrutinized in JUREK v. TEXAS,

SUPRA, provided for no proportionality

review. Also, in neither GREGG v.

GEORGIA, SUPRA, nor PROFFITT v.

FLORIDA, SUPRA, was there any language

elevating proportionality review to

constitutional prominence. STATE v.

COPELAND, SUPRA. Therefore, the Court

has left proportionate review to the

individual states. ID.

The Court, however, appears to look

at the ultimate result when deciding

whether @ petitioner's punishment is

excessive or disproportionate. For

example, the Court has found that the

death penalty is excessive when such

punishment is applied to a conviction

for rape. COKER v. GEORGIA, SUPRA.

Also, the death penalty is excessive

when applied to an accomplice who aids

and abets in a felony, where in the

course of that felony a murder is

committed by others than the

accomplice, and the accomplice himself

did not kill, attempt to kill, intend

that the killing take place or know

that lethal force would be employed.

ENMUND v. FLORIDA, ___—*U«.S. __,:-:102 S.

Ct. 3368 (1982).

We find that Defendant's sentence

of death for the deliberate murder of

ie

146

Section R

&

Vol. 22, No. 6, February 10, 1983 ‘

Jewett is neither excessive nor

disproportionate. We have THOROUGHLY

reviewed the record and transcripts of

Defendant's trial. Defendant ignores

the evidence when he asserts that his

situation is “similar” to Trujillo's,

when claiming that his sentence is

disproportionate. The evidence shows

that the fight resulting in Jewett's

death was started either because

Defendant's pride was hurt or because

Defendant would not do Bobby Garcia's

porter duties. While Jewett had

Trujillo in a "“bearhug", Defendant

turned his attentions from his attack

on Bobby Garcia and intentionally and

unmercifully stabbed Jewett from

behind. Although Defendant and

Trujillo were tried for the same crime,

the evidence does differ as to the

actions of each during the crime.

Proportionality REVIEW in New

Mexico is first and foremost directed

to the particular circumstances of a

crime and the specific character of the

defendant. In our duty to REVIEW the

determination by the jury, we will not

retry the case for what may be a better

result.

VI. CONCLUSION

After having carefully reviewed the

record and transcript in the case

before us, we conclude that there was

no error committed on the issues before

us in this case and that the death

sentence was validly imposed.

Therefore, the judgment of the jury

that Defendant be punished by death is

affirmed. This case is remanded to the

trial court to set the date of

execution.

IT IS SO ORDERED.

s/RTORDAN, Justice

WE CONCUR:

s/PAYNE, C.J.

s/FEDERICI, J.

s/STOWERS, J.

SOSA, S.J., specially concurring on all

issues except the issue of the

imposition of death.

FOOTNOTES

1. Cellblock three is the maximum-

security area of the New Mexico

State Penitentiary. Cellblock

three contains cells arranged

slong three tiers which are

Supreme Court Opinions, Justice Riordan

composed of the basement, the main

floor and the second floor. The

tiers of the cellblock are divided

into 4a northside and a southside.

Between these two sides, in the

middle of the cellblock, is an

officers’ station. A locked grill

separates the officers’ station

from the nortaside, another from

the southside. These grills and

the gates for each cell are

controlled within a4 separately

locked cage which is located

inside the officers’ station.

Except for daily showers and

exercise, most of the inmates in

cellblock three are locked within

their individual cells. However,

inmate porters have a relatively

high degree of freedom on the

tiers beccuse they assist with the

cleaning, meals, distribution of

linen and other duties.

Jesse Trujillo, in 4 separate

trial, was also tried = and

convicted for the murders of Bobby

Carabajal Garcia and Officer Louis

Jewett. He received two sentences

of life imprisonment. His

conviction was affirmed by the New

Mexico Supreme Court. STATE v.

TRUJILLO, _—-N.M. , sé. 2d

_. (No. 13,888, filed November

30, 1982).

"Shank" is a prison term for a4

homemade knife.

Captain Joe Baca is a correctional

officer at the New Mexico State

Penitentiary. He has been a

correctional officer at the

Penitentiary for twenty-one (21)

years.

This MOTION IN LIMINE also asked

the trial court to. preclude

mention of Defendant's alleged

threats against Lieutenant

Mayfield and mention of charges

against Defendant for the death of

inmate Danny Moraga. The trial

court also denied the motion on

these points. The trial court's

ruling on these two matters are

not being contested on appeal.

The trial referred to in this

passage was for the death of

inmate Danny Moraga. Richard

Reynaldo Garcia was tried and

acquitted of the killing of Danny

Moraga.

Section B

147

Supreme Court Opinions, Justice Riordan

"7. ROBINSON v. CALIFORNIA, 370 U.S.

660 (1962), held that the Eighth

Amendment to the United States

Constitution was applicable to the

states through the Fourteenth

Amendment to the United States

Constitution.

8. The death penalty cases combined

by the United States Supreme Court

in FURMAN v. GEORGIA, 408 U.S. 238

(1972), were 1) Petitioner was

convicted of rape in Georgia and

sentenced to death, 2) Petitioner

was convicted of murder in Georgia

and sentenced to death, and 3)

Petitioner was convicted of rape

in Texas and sentenced to death.

9. Silver, CONSTITUTIONALITY OF THE

NEW MEXICO CAPITAL PUNISHMENT

STATUTE, 11 WN.M.L. Rev. 269

(1981).

10. The aggravated circumstance to be

considered in Richard Reynaldo

Garcia's case is that “while

incarcerated in A penal

institution in New Mexico, the

defendant, with the intent to

kill, murdered an employee of the

corrections and criminal

rehabilitation department

[correction department]." Section

31-20A-S(E), N.M.S.A. 1978 (Repl.

Pamp. 1981). At the time of Bobby

Carabajal Garcia's death, Section

31-20A-5(D), N.M.S.A. 1978 (Repl.

Pamp. 1981), had not been enacted.

Section 31-20A-5(D) includes the

murdering of 4 prisoner as an

@ggravated circumstance.

11. It is the duty of the defendant's

attorney to supply the Court with

information of similar cases.

Such information is of public

record. Sections 14-3-] through

14-3-25, N.M.S.A. 1978 (Orig. and

Cum. Supp. 1982).

12. The cruel and unusual punishment

clause of the Eighth Amendment is

directed, in part, against all

punishments which by their

excessive length or severity are

greatly disproportionate to the

offenses charged. ENMUND v.

FLORIDA, ___ U.S. __, 102 S. Ct.

3368 (1982).

SPECIALLY CONCURRING OPINION

ON ALL ISSUES EXCEPT THE ISSUE

OF THE IMPOSITION OF DEATH

Vol. 22, No. 6, February 10, 1983

SOSA, Senior Justice.

I concur with the majority opinion

except as to the imposition of the

death penalty. While I do not believe

that the death penalty in and of itself

is unconstitutional as cruel and

unusual punishment, I would hold that

New Mexico's Capital Felony Sentencing

Act, Secs. 31-20A-1 through 31-20A-6,

N.M.S.A. 1978 (Repl. Pamp. 1981), is

unconstitutional under the U.S. CONST.

amend. VIII and XIV and the N.M.

Const., Art. I1, Sections 13 and 18,

for the following reasons: (1) the

Uniform Jury Instructions used at

sentencing are inconsistent, confusing

and provide inadequate standards for

the final decision between death and

life imprisonment in that (a)

“mitigating circumstance” is not

defined, (b) the jury is not required

to make a written statement that it has

considered a particular mitigating

circumstance, and (c) no standard is

provided by which the jury may

determine whether aggravating

circumstances outweigh mitigating

circumstances; (2) the statute does not

provide a procedure for meaningful

appellate review of either the

sentencing decision or proportionality;

and (3) the death penalty does not fall

equally on all but, instead, New

Mexico's statute and Uniform Jury

Instructions allow for different

treatment of equally culpable

individuals.

I

The Uniform Jury Instructions used

at sentencing, N.M.U.J.1. Crim. 39.10

through 39.34, N.M.S.A. 1978 (Repl.

Pamp. 1982), and the death penalty

statute, Sections 31-20A-1 through 31-

2UA-6, are inconsistent, confusing and

provide inadequate standards for the

final decision between death and life

imprisonment.

The jury instructions relevant to

this case are as follows:

The law provides that you cannot

sentence the defendant to death

unless you are satisfied beyond a

reasonable doubt that the murder

was committed under one or more of

the aggravating circumstances

charged. The burden is always on

the state to prove beyond a4

reasonable doubt that the murder

was committed under one or more of

Sertinn R

Vol. 22,.No. 6, February 10, 1983

the aggravating circumstances

charged and that the mitigating

circumstances do not outweigh the

aggravating circumstances.

It is not required that the state

prove this beyond all possible

doubt. The test is one of

reasonable doubt. A_ reasonable

doubt is a doubt based upon reason

and common sense -- the kind of

doubt that would make a reasonable

person hesitate to act in the

graver and more important affairs

of life.

N.M.U.J.1. Crim. 39.31.

If you have unanimously agreed on a

finding that one or more of the

Qggravating circumstances charged

were present, you must then

consider the penalty to be imposed

in this case. In determining the

penalty to be imposed, you must

consider all of the evidence

admitted during this sentencing

proceeding and the evidence

admitted during the trial in which

the defendant was found guilty of

murder. You must then consider

whether there are any mitigating

circumstances.

If you find there are mitigating

circumstances, you must then weigh

the mitigating circumstances

against the one or more aggravating

circumstances you have found in

this case. After weighing the

aggravating circumstances and the

mitigating circumstances, weighing

them against each other, = and

considering both the defendant and

the crime, you shall determine

whether the defendant should be

sentenced to death or life

imprisonment.

N.M.U.J.I1. Crim. 39.33.

The jury is required to complete 4

verdict form, N.M.U.J.1. Crim. 39.34,

specifying which aggravating

circumstance they have found. However,

the jury is not required to state which

mitigating circumstances they have

considered nor are they required to

state whether they have found that the

mitigating circumstances do or do not

outweigh the aggravating circumstances.

The basic requisite of a

constitutionally valid capital

sentencing procedure is that it must

provide “ubjective standards to guide,

Supreme Court Opinions, Justice Riordan

regularize, and make rationally

reviewable the process for imposing a

sentence of death." WOODSON v. NORTH

CAROLINA, 428 U.S. 280, 303 (1976); SEE

GREGG v. GEORGIA, 428 U.S. 153 (1976);

PROFFITT v. FLORIDA, 428 U.S. 242

(1976); JUREK v. TEXAS, 428 U.S. 262

'(1976). The United States Supreme

Court has said that

FURMAN mandates that where

discretion is afforded a

sentencing body on a matter so

grave as the determination of

whether a human life should be

taken or spared, that discretion

must be suitably directed and

limited so as to minimize the risk

of wholly arbitrary and capricious

action.

GREGG, SUPRA, at 189. New Mexico's

death penalty sentencing procedure does

not meet these requirements.

The term "mitigating circumstance"

is not defined by the death penalty

statute or jury instructions. Indeed,

the verdict form, N.M.U.J.I1. Crim.

39.34, neither mentions mitigating

circumstances nor requires any finding

with respect to them. This exacerbates

the problems inherent in N.M.U.J.I.

39.33 which gives the jury no guidance

as to the meaning of “considering both

the defendant and the crime." The only

aggravating circumstances which a jury

may consider are those specifically

listed in the statute. Section 31-20A-

5. Thus, the defendant and the crime

may not be considered as an aggravating

circumstance but ONLY in mitigation.

The jury obviously should be instructed

to this effect. Failure to so instruct

the jury would allow them to consider

the defendant and the crime in

aggravation and would allow a juror to

use his unfettered bias or prejudice

against a defendant of a different

ethnic or racial group.

N.M.U.J.I. Crim. 39.31 requires a

finding of the negative proposition

that “the mitigating circumstances do

not outweigh the aggravating

circumstances.” An instruction to find

4& negative proposition is often

confusing to a jury. The use of

confusing instructions constitutes

reversible error. SEE STATE v. WISE,

95 N.M. 265, 620 P.2d 1290 (1980).

N.M.U.J.1. Crim. 39.31 and 39.33 do

not provide the jury with guidance as

Section B

»?

Court Opinions, Justice Riordan

.to the standard to use in weighing

aggravating circumstances against

mitigating circumstances. For example,

the jury has no way of knowing whether

their weighing should be by a

preponderance of the evidence or beyond

@ reasonable doubt. The jury is given

no guidance in the event that the

aggravating circumstances are equally

balanced with the mitigating

circumstances. Both the aggravating

circumstances, which are necessary to

support e death sentence in New Mexico,

and the mitigating circumstances, which

may mitigate against imposition of the

death sentence, involve factual

findings that are not required to be

made and are not made at the guilt phase

of the trial. Therefore, the

sentencing statute requires that

aggravating circumstances be found

beyond « reasonable doubt. Section 31-

20A-3. Similarly, there should be some

standard for a finding that aggravating

circumstances outweigh mitigating

circumstances.

Due process requires reasonably

clear guidelines for triers of fact in

order to prevent arbitrary and

discriminatory enforcement. SMITH v.

GOGUEN, 415 U.S. 566 (1974). Due

process protections are demanded where

@ new finding of facts must be made in

order to Support 4a particular

sentencing outcome. SPECHT v.

PATTERSON, 386 U.S. 605 (1967). The

sentencing process, as well as the

triel, must satisfy the Due Process

Clause. GARDNER v. FLORIDA, 430 U.S.

349 (1977) (plurality opinion).

Traditional due process standards

forbid the imposition of sanctions

under any procedure which "licenses the

jury to create its own standard in each

case.” HERNDON v. LOWRY, 301 U.S. 242,

263 (1937); GIACCIO v. PENNSYLVANIA,

362 U.S. 399 (1966). Because New

Mexico's statute and jury instructions

fail to provide any standard, they are

susceptible of improper application and

are therefore unconstitutional.

A jury must be carefully and

adequately guided in its deliberations.

GREGG, SUPRA, at 193. Several states

have given such direction to jurors in

their death penalty statutes.

Arkansas, North Carolina, Ohio and

Washington require jury findings that

the aggravating circumstances outweigh

Vol, 22, No. 6, February 10, 1983

the mitigating circumstances beyond a

reasonable doubt. ARK. STAT. ANN.

Section 41+1302(1)(b) (1977); N.C. GEN.

STAT. Section 15A-2000(c)(3) (Supp.

1981); OHIO REV. CODE ANN. Section

2929.03(D)(2) and (3) (Page 1981);

WASH. REV. CODE ANN. = 10.95.060(4)

(1981). Connecticut prohibits the

death sentence in any case where there

exist any mitigating circumstances.

CONN. GEN. STAT. Section 53a-46a(e) and

(f) (1981).

The use of confusing and inadequate

instructions constitutes reversible

error. SEE STATE v. WISE, SUPRA; STATE

v. DeSANTOS, 89 N.M. 458, 553 P.2d 1265

(1976); STATE v. BUHR, 82 N.M. 371, 482

P.2d 14 (Ct. App. 1971). The majority

opinicn ‘s correct in that a defendant

who reither objects to instructions

given nor tenders his own waives his

right to object for the first time on

appeal. STATE v. NOBLE, 90 N.M. 36u,

563 P.2d 1153 (1977). However, wiere a

fundamental right of the accused has

been violated, this Court may, in its

discretion, see that injustice is not

done. STATE v. GARCIA, 19 N.M, 414, 143

P. 1012, REH'G GRANTED, 19 N.M. 420,

143 P. 1014 (1914); STATE v. GARCIA, 46

N.M. 302, 128 P.2d 459 (1942). The

defendant's rights to due process under

the Fourteenth and Eighth Amendments

are clearly fundamental where the

outcome of a violation of his rights is

that defendant is sentenced to die.

New Mexico's statute and instructions

fail to provide even the minimal

guidance required. Accordingly, the

sentence of death should be reversed in

this case and the defendant sentenced

to life in prison.

II

New Mexico's death penalty statute

does not include procedures for the

development of a record by which this

Court may ascertain if a jury has

imposed a death penalty on arbitrary or

capricious grounds or under the

influence of passion or prejudice. Nor

does the statute provide for a record

by which to determine if the evidence

supports a finding that the mitigating

circumstances do not outweigh the

aggravating circumstances. No

procedure is provided by which this

Court may review whether a death

sentence is excessive or

disproportionate to penalties imposed

Section R

)

Vol, 22, No. 6, February 10, 1983

in similar circumstances, considering

both the defendant and the crime.

Thus, this Court is precluded from

properly reviewing the jury's

sentencing verdict.

This jurisdiction's doctrine of

fundamental error, which encompasses

within it any error that deprives 4n

accused of a fundamental right, allows

the assertion of the denial of a4

defendant's right to due process to be

raised for the first time on appeal to

see that justice is done. STATE v.

GARCIA, 19 N.M. 414, 143 P. 1012, REH'G

GRANTED, 19 N.M. 420, 143 P. 1014

(1914); STATE v. GARCIA, 40 N.M. 302,

128 P.2d 459 (1942). Therefore, Mr.

Garcia may raise the issue of

reviewability on appeal.

Section 31-20A-4 requires this

Court to review every sentence of

death.

A. The judgment of conviction and

sentence of death shall be

automatically reviewed by the

supreme court of the state of New

Mexico.

B. In addition to the other

matters on appeal, the supreme

court shal] rule on the validity of

the death sentence.

C. The death penalty shal! not be

imposed if:

(1) the evidence does not support

the finding of 4 statutory

aggravating circumstance,

(2) the evidence supports a finding

that the mitigating circumstances

outweigh the aggravating

circumstances;

(3) the sentence of death was

imposed under the influence of

passion, prejudice or any other

arbitrary factor, or

(4) the sentence of death is

excessive or disproportionate to

the penalty imposed in similar

cases, considering both the crime

and the defendant.

Section 31-20A-4(C).

Because the jury is given no

standard by which to weigh the evidence

at sentencing, this Court is denied any

means for proper review of the

sentencing verdict and is unable to

determine if such a verdict is

arbitrary or capricious.

The laws of Georgia, Florida and

Texas, which have been approved by the

Supreme Court Opinions, Justice Riordan

United States Supreme Court, GREGG,

SUPRA; RPOFFITT, SUPRA; JUREK, SUPRA,

require the finding of at least one

aggravating circumstance beyond a

reasonable doubt to support a sentence

of death. However, unlike New Mexico,

these three states require written

findings. Silver, CONSTITUTIONALITY OF

THE NEW MEXICO CAPITAL PUNISHMENT

STATUTE, 11 N.M.L. Rev. 269 (1981).

The United States Supreme Court has

never discussed the potential! for

incomplete appellate review because of

inadequate written findings. ID. I

believe that meaningful appellate

review of a death penalty sentence is

not possible without such written

findings.

In GREGG, SUPRA, the United States

Supreme Court relied on Georgia's

appellate review of individualized

death sentences in rejecting the

defendant's contention that the

Constitution's ban on cruel and unusual

punishments barred the imposition of

the death penalty under sentencing

procedures that created a substantial

risk that it would be inflicted in an

arbitrary and capricious manner.

Where the sentencing authority is

required to specify the factors it

relied upon in reaching its

decision, the further safeguard of

meaningful appellate review is

available to ensure that death

sentences are not imposed

capriciously or in a _ freakish

manner.

ID. at 195. New Mexico's statute lacks

procedures for making comparisons

between cases. What kinds of cases are

we to consider? What does similar

mean? How far back in New Mexico's

judicial history should comparisons be

made? should extrajudicial cases he

brought into the analysis? Are cases

which ended in plea bargains relevant?

If a prosecutor exercises discretion tn

the charging process and seeks an

indictment without aggravating

circumstances, is that case similar?

Is the record for review of

proportionality to be established in

the trial court? If the record for

review is to be developed at the

appellate level, are evidentiary

hearings required? The language is, et

best, susceptible of many different

interpretations. Due process demands

Section B

151

Supreme Court Opinions, Justice Riordan

. proportionality review, COKER v.

GEORGIA, 433 U.S. 584 (1977) (plurality

opinion), and the Legislature

apparently intended to comply with the

requirement. However, this section is

so vague that an accused is not

accorded meaningful appellate review.

I disagree with the guidelines for

review of proportionality set forth in

the majority opinion. This Court is

statutorily mandated to review this

issue whether it is raised on appeal or

not. In addition, I believe that cases

in which the death sentence is imposed

should be compared to cases in which

the defendant is charged with a capital

offense under the same aggravating

circumstances. Comparison should also

be made to cases in which the defendant

was CHARGED with a capital offense but

which, for whatever reason, were not

appealed to this Court.

In PROFFITT, SUPRA, the Court found

that Florida's failure to formulate a

rigid objective test as a standard of

review did not necessarily render the

appellate review process ineffective or

arbitrary because the Florida court

performed its function of death

sentence review with a maximum of

rationality and consistency. It cannot

be said that this Court's review of

Garcia's sentence is consistent with

its review of Trujillo's sentence. SEE

STATE v. TRUJILLO, 21 N.M. St. B. Bull.

1669 (1982), N.M. © aeeies P.2d

(1982). The difference in the

evidence presented in the two cases is

not significant enough to justify one

defendant being sentenced to death and

the other to life imprisonment. It is

impossible to determine from the record

who struck the blow that resulted in

Officer Jewett's death.

It is interesting to note that the

majority changed their opinion

subsequent to my circulating a dissent

calling attention to their failure to

adopt guidelines for review of

proportionality. Even though

guidelines have now been set out, they

still do not allow for 4 meaningful

appellate review for the reasons | have

set forth above. For the foregoing

reasons, I believe that the Capital

Felony Sentencing Act as a whole must

fail as being in violation of the

Vol, 22, No. 6, February 10, 1983

States Constitution and analogous

provisions of the New Mexico

Constitution. It is my judgment that

we cannot impose the death penalty

until we have set up some procedure so

that a meaningful appeliate review for

proportionality can be had in

accordance with Section 31-20A-4(C).

111

"It is of vital importance to the

defendant and to the community that any

decision to impose the death sentence

be, and appear to be, based on reason

rather than caprice or emotion.”

GARDNER, SUPRA, at 358. New Mexico's

death penalty statute does not apply

equally to al] but allows for different

treatment of equally culpable

individuals. The arbitrary and

capricious nature of this penalty has

not been rectified by New Mexico's

sentencing procedures. Without

guidelines for the jury to follow and

without an appropriate procedure for

meaningful appellate review, this Court

is unable to determine whether the jury

has acted capriciously and is also

unable to examine similar cases for

proportionality. Under such vague

language as is found in the New Mexico

statute, the following problem arises:

[T)he jury, on no grounds or on ony

grounds, articulated or not

articulated, can spare any

defendant's life either by

refusing to sentence to death

though “aggravating circumstances”

be round, or as is more likely,

simply failing, whatever the

evidence, to find aggravating

circumstances ee both being

unreviewable actions. The

strictly logical corollary is that

the jury may, within the same field

of death eligibles, fail to spare

some others, and need give no

reason for the difference.

Arbitrary lenience equals

arbitrary harshness, by an iron law

of sheer identity.

Black, CAPRICE AND RACISM IN THE DEATH

PENALTY, in FINAL REPORT ANNUAL CHIEF

JUSTICE EARL WARREN CONFERENCE ON

ADVOCACY IN THE UNITED STATES 21, 30

(1980). This is precisely the problem

which has arisen under the facts of the

Garcia case. Garcia and Trujillo were

rights accorded by the Fifth, Fighth jointly indicted but, because of

and Fourteenth Amendments to the United severance, they were separately

Section R

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es

Vol. 22, No. 6, February 10, 1983 :

convicted of the murder of Officer

Jewett. In TRUJILLO, SUPRA, the jury

spared Trujillo's life by refusing to

find the aggravating circumstance that

while incarcerated in a _ penal

institution in New Mexico, the

defendant, with the intent to kill,

murdered an employee of the corrections

and criminal rehabilitation department.

In this case, the jury found the same

aggravating circumstance. If these

cases had remained unsevered, the jury

could not have made this inconsistent

finding. Without this inconsistency,

they both would have been given life or

they both would have been given death.

One cannot meaningfully distinguish the

TRUJILLO case, in which the death

sentence wes not imposed, from the

Garcia case, in which the death

sentence was imposed.

We don't know why the TRUJILLO jury

failed to find the aggravating

circumstance. The jury may have been

confused by the instructions or may

have meant to find that the mitigating

circumstances did outweigh the

Oggravating circumstances. A

comparison of the TRUJILLO case with

the instant case strongly illustrates

that New Mexico's statute and jury

instructions are inconsistent and

confusing, that this Court cannot

meaningfully review such death

sentences, and that the statute and

Supreme Court Opinions, Jusice Federici

jury instructions are fraught with the

potential for different treatment of

equally culpable individuals.

CONCLUSION

New Mexico's death penalty statute

and jury instructions violate both the

United States Constitution and the

Constitution of the State of New

Mexico. They are confusing, vague and

fail to provide adequate, objective

standards to guide the jury in its

decision between death and life

imprisonment. No procedure exists

whereby this Court can meaningfully

review the jury's decision. This Court

does not have an adequate objective

procedure to review capital felony

cases for proportionality, nor does its

review of this case meet the

consistency requirement established in

PROFFITI, SUPRA. Because the jury is

inadequatety instructed and because of

the lack of reviewability, there is a

great potential for different treatment

of equally culpable defendants. Death

cannot constitutionally result from

such 4 process.

For the foregoing reasons, I

respectfully dissent as to. the

imposition of the death sentence. I

would hold that New Mexico's death

penalty statute is unconstitutional and

remand this case for the imposition of

a sentence of life imprisonment.

s/SOSA, Senior Justice

Section B

153

-,

31-20A-1 CAPITAL FELONY SENTENCING 31-20A-3

ARTICLE 20A

Capital Felony Sentencing

Sec. .

31-20A-1. Capital felony; sentencing procedure. ra Review of judgrnent and sentence

31.20A.2 Determination of sentence 31-20A.5 Aggravating circumstances.

31-20A-3. Court sentencing. 31-20A-6 Mitigateng carcumstances

31-20A-1. Capital felony; sentencing procedure.

A. At the conclusion of all capital felony cases heard by jury, and after proper charge from

the court and argument of counsel, the jury shall retire to consider a verdict of guilty or not

guilty without any consideration of punishment. In nonjury capital felony cases, the judge

shall first consider a finding of guilty or not guilty without any consideration of punishment.

B. Upon a verdict by the jury or judge that the defendant is guilty of a capital felony, or

upon a plea of guilty to a capital felony, the court shall conduct a separate sentencing

proceeding to determine whether the defendant should be sentenced to death or life

imprisonment as authorized herein. In @ jury trial, the sentencing proceeding shal! be

conducted as soon as practicable by the origina! trial judge before the original trial jury. In

@ nonjury trial the sentencing proceeding shal! be conducted as soon as practicable by the

original trial judge. In the case of a plea of guilty to a capital felony, the sentencing

proceeding shall be conducted as soon as practicable by the original trial judge or by a jury

upon demand of # party.

C. In the sentencing proceeding, al] 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 pursuant to Sections 6 (31-20A-5 NMSA 1978) and

7 (31-20A-6 NMSA 1978) of this act.

D. In a jury sentencing proceeding, the judge shal! give appropriate instructions and

allow argument and the jury shall retire to determine the punishment to be imposed Ina

nonjury sentencing proceeding or upon a plea of guilty, where no jury has been demanded,

the judge shall allow argument and determine the punishment to be imposed.

History: Lawe 1979, ch. 180, § 2.

31-20A-2. Determination of sentence.

A. Capital sentencing deliberations shall be guided by the following considerations

(1) whether aggravating circumstances exist as enumerated in Section 6 (31-20A-5

NMSA 1978) of this act;

(2) whether mitigating circumstances exist as enumerated in Section 7 [31-20A-6

NMSA 1978) of this act; and

(3) whether other mitigating circumstances exist,

B. After weighing the aggravating circumstances and the mitigating circumstances,

weighing them against each other, and considering both the defendant and the crime, the

jury or judge shall determine whether the defendant should be sentenced to death or life

imprisonment.

History: Lawe 1879, ch. 150, § 3.

31-20A-3. Court sentencing.

In a jury sentencing proceeding in which the jury unanimously finds beyond a reasonable

doubt and specifies at least one of the aggravating circumstances enumerated in Section 6

{31-20A-5 NMSA 1978) of this act, and unanimously specifies the sentence of death

pursuant to Section 3 (31-20A-2 NMSA 1978) of this act, the court shall sentence the

defendant to death. Where a sentence of death is not unanimously specified, or the jury does

29

31-20A-4 CRIMINAL PROCEDURE 31-20A-5

not make the required finding, or the jury is unable to reach a unanimous verdict, the court

shall sentence the defendant to life imprisonment. In a nonjury sentencing proceeding and

in cases involving a plea of guilty, where no jury has been demanded, the judge shall

determine and impose the sentence, but he shall not impose the sentence of death except

upon a finding beyond a reasonable doubt and specification of at least one of the aggravating

circumstances enumerated in Section 6 (31-20A-5 NMSA 1978) of this act.

History: Laws 1979, ch. 150, 6 4.

31-20A-4. Review of judgment and sentence.

A. The judgment of conviction and sentence of death shal! be automatically reviewed by

the supreme court of the state of New Mexico.

B. In addition to the other matters on appeal, the supreme court shall rule on the validity

of the death sentence.

C. The death penalty shali not be imposed if:

(1) the evidence does not support the finding of a statutory aggravating

circumstance;

(2) the evidence supports a finding that the mitigating circumstances outweigh the

aggravating circumstances,

(3) the sentence of death was imposed under the influence of passion, prejudice or any

other arbitrary factor; or

(4) the sentence of death is excessive or disproportionate to the penalty imposed in

similar cases, considering both the crime and the defendant.

D. No error in the sentencing proceeding shall result in the reversal of the conviction of

a capital felony. If the trial court 1s reversed on appeal because of error only in the

sentencing proceeding, the supreme court shall remand solely for a new sentencing

proceeding. The new sentencing proceeding ordered and mandated shall apply only to the

issue of punishment.

E. In cases of remand for a new sentencing proceeding, all exhibits and a transcript of all

testimony and other evidence admitted in the prior trial and sentencing proceeding shall be

admissible in the new sentencing proceeding, and:

(1) if the sentencing proceeding was before a jury, a new jury shall be impaneled for

the new sentencing proceeding;

(2) if the sentencing proceeding was before # judge, the original trial judge shall

conduct the new sentencing proceeding, or

(3) if the sentencing proceeding was before a judge and the original trial judge is

unable or unavailable to conduct a new sentencing proceeding, then another judge shall be

designated to conduct the new sentencing proceeding and the parties are entitled to

disqualify the new judge on the grounds set forth in Section 38-3-9 NMSA 1978 before the

newly designated judge exercises any discretion.

History: Lawe 1979, ch. 150, 6 5.

31-20A-5. Aggravating circumstances.

The aggravating circumstances to be considered by the sentencing court or jury pursuant

to the provisions of Section 31-20A-2 NMSA 1978 are limited to the following:

A. the victim was a peace officer who was acting in the law ful discharge of an official

duty when he was murdered,

B. the murder was committed with intent to kill in the commission of or attempt to

commit kidnaping, criminal sexual contact of a minor or criminal sexual penetration;

C. the murder was committed with the intent to kill by the defendant while

attempting to escape from a penal institution of New Mexico;

D. while incarcerated in a penal institution in New Mexico, the defendant, with the

intent to kill, murdered a person who was at the time incarcerated in or lawfully on the

30

?

31-20A-6 SENTENCE, PARDONS AND PAROLES 31-20A-6

premises of a penal institution in New Mexico. As used in this subsection “penal institution”

includes facilities under the jurisdiction of the corrections and criminal rehabilitation

department [corrections department) and county and municipal jails;

E. while incarcerated in a penal institution in New Mexico, the defendant, with the

intent to kill, murdered an employee of the corrections and criminal rehabilitation

department (corrections department);

F. the capital felony was commited for hire; and

G. the capital felony was murder of a witness to a crime or any person likely to

become a witness to a crime, for the purpose of preventing report of the crime or testimony

in any criminal proceeding, or for retaliation for the victim having testified in any criminal

proceeding.

History: Laws 1979, ch. 150, § 6; 1981, ch. 23,6 1. Applicability. — Laws 1981, ch 23,6 2. makes the

The 1981 amendment substituted “Section act applicable only to persons sentenced for crimes

3)-20A-2 NMSA 1978" for "Section 3 of this act” in the committed on or after its effective date.

introductory paragraph, added present Subsection Dd, Corrections deparevent. — Laws 1981, ch. “3,

redesignated former Subsections D, E and F as present ¢ 1, changed the name of the former corrections and

Subsections E, F and G, and substituted “corrections criminal rehabilitation department, referred to in

and criminal rehabilitation department” for “correc- Subsections D and E. to the corrections department

tions division” at the end of Subsection E See 9-3-3 NMSA 1978.

Emergency clauses. — Laws 198), ch 23, € 3,

makes the act effective immediately Approved March

17, 1981

31-20A-6. Mitigating circumstances.

The mitigating circumstances to be considered by the sentencing court or the jury pur-

suant to the provisions of Section 3 131-20A-2 NMSA 1978) of this act shall include but not

be limited to the following:

A. the defendant has no significant history of prior criminal activity,

B. the defendant acted under duress or under the domination of another person,

C. the defendant's capacity to appreciate the criminalty |criminality) of his conduct

or to conform his conduct to the requirements of the law was impaired;

D. the defendant was under the influence of mental or emotional disturbance,

E. the victim was a willing participant in the defendant's conduct;

F. the defendant acted under circumstances which tended to justify, excuse or reduce

the crime;

G. the defendant is likely to be rehabilitated;

H. the defendant cooperated with authorities; and

1. the defendant's age.

History: Laws 1979, ch. 150, § 7. shall promulgate rules prior to the effective date of the

Effective dates. — Laws 1979. ch 150, 613, act to regulate the procedure in capital felony cases for

makes thé act eflective on July 1, 1979 the selection and utilization of alternate jurors and

Severability clauses, — Laws 1979. ch 150, 412, substitute trial yudges caused by the disability of any

provides for the severability of the act if any part or juror or trial judge before whom a capital felony

application thereof is held invalid sentencing proceeding has commenced pursuant to

Temporary provisions. — Laws 1979, ch 150, the act

§ 11, provides that the supreme court of New Mexico

31

DEATH PENALTY

UJI Crim. 39.10. Explanation of death penalty sentencing pro-

ceeding; single aggravating circumstance.’

LADIES AND GENTLEMEN:

This is a sentencing proceeding to determine whether the defendant .........-+065>

name of defendant

should be punished by life imprisonment or by death.

| will outline specific procedures for you to follow in deciding the issues in this case. You

must follow these procedures carefully. The law provides that a person who is convicted of

the crime of murder may be sentenced to death only if the aggravating circumstance charged

by the state is present.

The state has charged that the following aggravating circumstance was present: 8

{the murder was of a peace officer who was performing his duties);

ithe murder was committed during (the commission of)* (an attempt to commit)

(kidnapping) * (criminal sexual contact of a minor) (criminal sexual penetration));

{the murder was committed while attempting to escape from a penal institution),

[the murder was of an employee of the corrections division),

{the murder was for hire),

(the murder was of (a witness to # crime) 5 (a person likely to become a witness to a

crime)).

You will first be asked to consider whether this aggravating circumstance was present.

If you unanimously agree beyond a reasonable doubt that this aggravating circumstance

was present, you must then weigh any mitigating circumstances in this case against this

aggravating circumstance.

You must decide the case solely on the evidence admitted by the court during the trial in

which the defendant was found guilty of murder and such additional evidence as may be

presented during this sentencing proceeding. You must not consider anything you may have

read or heard about the case outside the courtroom.

It is for you to decide whether the witnesses know what they are talking about and

whether they are being truthful. You may give the testimony of any witness whatever

weight you believe it merits.

You are not permitted to take notes. You must rely upon your individual memories of the

evidence.

If an exhibit is admitted in evidence, you should examine it by yourself. Do not talk about

the exhibit with other jurors until you retire to deliberate. If you have a question during the

proceeding, write out the question, sign it and give it to the bailiff.

No statement, ruling, remark or comment which I make during the course of the pro-

ceeding is intended to indicate my opinion as to how you should decide the issue or to

influence you in any way. At times I may ask questions of witnesses. If] do, such questions

do not in any way indicate my opinion about the facts or indicate the weight I feel you should

give to the testimony of the witness.

Until you retire to deliberate the sentence, you must not discuss this matter or the

evidence with anyone, even with each other. It is important that you keep an open mind and

not decide the sentence to be imposed until the entire matter has been completed and

submitted to you. Your special responsibility as jurors demands that throughout this pro-

ceeding you exercise your judgment impartially and without regard to any biases or preju-

dices that you may have.

The prosecuting attorney will now make an opening statement if he desires. The defen-

dant's attorney may make an opening statement if he desires or may wait until later to do

80.

What is said in the opening statement is not evidence. The opening statement is simply

the lawyer's opportunity to tell you what he intends to prove.

Use Note

1. This instruction may only be used in death penalty sentencing proceedings where

defendant has been convicted of a single murder and a single aggravating circumstance has

been charged. If the defendant has been convicted of more than one capital offense, use UJI

Criminal 39.11. If more than one aggravating circumstance is charged for the same murder,

use UJI Criminal 39.11. It is to be given before opening statements. This instruction does

not go to the jury room.

2. Use only the applicable bracketed alternative.

3. Use only the applicable alternative. [Adopted, effective July 1, 1979.)

UJI Crim. 39.12. Death penalty sentencing proceeding; issue of

guilt.

This is a sentencing proceeding only. The defendant has previously been convicted of

murder, and it is your duty to determine the sentence to be imposed.

Although in this sentencing proceeding you should consider all evidence from the trial in

which the defendant was found guilty of murder, you should not reconsider the question of

the defendant's guilt.

Use Note

1. This instruction must be given in every death penalty sentencing proceeding after all

the evidence has been completed. |Adopted, effective July 1, 1979.)

UJI Crim. 39.13. Death penalty sentencing proceeding; aggravating

circumstances.’

The state has charged that the murder of ©. 1 ee eee

was committed under the following aggravating circumstance(s): *

{the murder was of a peace officer who was performing his duties);

{AND}?

{the murder was committed during (the commission of)‘ (an attempt to commit)

(kidnapping) * (criminal sexual contact of a miner) (criminal sexual penetration)),

{AND)

{the murder was committed while attempting to escape from a penal institution);

{AND}

{the murder was of (an inmate) * (person lawfully on the premises) of a penal institu-

tion);

[AND)

{the murder was of an employee of the corrections division);

{[AND)

(the murder was for hire);

{AND}

(the murder was of (a witness to a crime) ‘ (a person likely to become a witness to a

crime)).

[A separate instruction will now be given to you for each of these aggravating circum-

stances.) °

Use Note

1. This instruction must be given in every death penalty sentencing proceeding after all

the evidence has been completed. The appropriate aggravating circumstance instruction(s)

for which there is sufficient evidence must be given after this instruction. A separate

instruction must be given for each murder committed. See UJI Criminal 39.13 through

39.20. :

2. Use only the applicable bracketed phrase(s).

3. Use only if more than one aggravating circumstance is charged.

4. Use only the applicable alternative(s).

5. Use the bracketed material only if there are multiple aggravating circumstances.

(Adopted, effective July 1, 1979; as amended, effective March 17, 1981.)

UJI Crim. 39.18. Death penalty sentencing proceeding; aggravating

circumstances; murder of employee of corrections divi-

sion; essential elements.’

Before you may find the aggravating circumstance of murder of an employee of the

corrections division, you must find that the state has proved to your satisfaction beyond a

reasonable doubt each of the following elements:

1. At the time defendant murdered......-.--++>- defendant was incarcerated in

name of penal institution

2. Atthetime.......--- _, . was murdered, . 6.066 eee was an employee of

name of victim name of victim

the corrections division of the department of criminal justice of the state of New Mexico; and

3. The defendant had the intent to kill,

{and}?

[4. The defendant was 18 years of age or older at the time he committed the murder.) °

Use Note

1. This instruction may only be used in a death penalty sentencing proceeding.

2. Use bracketed language upon request if sufficient evidence has been presented to raise

an issue as to whether the defendant had reached the age of majority at the time the murder

was committed. |Adopted, effective July 1, 1979, as renumbered, effective March 17, 1981.)

UJI Crim. 39.30. Death penalt' proceeding; mitigating circum-

stances.’

Before determining the penalty to be imposed, you should consider any of the following

mitigating circumstances you find to exist: *

[the defendant did not have any significant history of prior criminal activity);

(the defendant acted under duress or under the domination of another person);

{the defendant's capacity to appreciate the criminality of his conduct or to conform his

conduct to the requirements of the law was impaired),

(the defendant was under the influence of mental or emotional disturbance);

{the victim was a willing participant in the defendant's conduct),

{the defendant acted under circumstances which tended to justify, excuse or reduce

the crime);

{the defendant is likely to be rehabilitated),

[cooperation by the defendant with authorities); and

[the defendant's age).

You should also consider any other circumstances which you find to be mitigating.

Use Note

1. This instruction must be given in every death penalty sentencing proceeding.

2. Use only the bracketed alternative mitigating circumstances for which there is suffi-

cient evidence. [Adopted, effective July 1, 1979; as renumbered, effective March 17, 1981.)

UJI Crim. 39.31. Death penalty sentencing proceeding; reasonable

doubt; burden of proof."

The law provides that you cannot sentence the defendant to death unless you are satisfied

beyond a reasonable doubt that the murder was committed under one or more of the

aggravating circumstances charged. The burden is always on the state to prove beyond a

reasonable doubt that the murder was committed under one or more of the aggravating

circumstances charged and that the mitigating circumstances do not outweigh the

aggravating circumstances.

It is not required that the state prove this beyond all possible doubt. The test is one of

reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense —

the kind of doubt that would make a reasonabie person hesitate to act in the graver and more

important affairs of life.

Use Note

1. This instruction must be given in all death penalty sentencing proceedings | Adopted,

effective July 1, 1979; as renumbered, effective March 17, 1981.)

UJI Crim. 39.32. Death penalty sentencing proceeding; jury proce-

dure for consideration of aggravating circumstances.'

You must decide the issues in this case solely on evidence admitted by the court during

the trial in which the defendant was found guilty of murder and such additional evidence

as may have been presented during this sentencing proceeding You must not consider

anything you may have read or heard about the case outside the courtroom.

You must first consider whether the aggravating circumstance(s) charged were present

in this case. An aggravating circumstance must be proved beyond a reasonable doubt. If you

have a reasonable doubt as to whether an aggravating circumstance 18 present, it is your

duty to find that it is not present.

{You must decide separately as to each of the aggravating circumstances charged in this

case. If you cannot agree upon your finding as to all of the aggravating circumstances but can

agree as to one [or more) of them, you must make your finding as to the one [or more} upon

which you do agree.) *

In order to find an aggravating circumstance, you must agree unanimously.

A special finding form has been prepared for you for the aggravating circumstances)

charged. For each aggravating circumstance upon which you have reached unanimous

agreement, you shal! complete the first part of the finding form indicating that the

aggravating circumstance was found and having the foreman sign this part. If you cannot

unanimously agree that the state has proved to your satisfaction beyond a reasonable doubt

that an aggravating circumstance was present, you shall complete the first part of the

finding form indicating that the aggravating circumstance was not unanimously agreed

upon and having the foreman sign this part.

Use Note

1. This instruction must be given in every death penalty sentencing proceeding.

2. Use only applicable bracketed language. |Adopted, effective July 1, 1979; as

renumbered, effective March 17, 1981.)

UJI Crim. 39.33. Death penalty proceeding; jury procedure for con-

sidering penalty to be imposed.’

If you have unanimously agreed on a finding that |the aggravating circumstance charged

was] (one or more of the aggravating circumstances charged were) * present, you must then

consider the penalty to be imposed in this case. In determining the penalty to be imposed,

you must consider all of the evidence admitted during this sentencing proceeding and the

evidence admitted during the trial in which the defendant was found guilty of murder. You

must then consider whether there are any mitigating circumstances.

If you find there are mitigating circumstances, you must then weigh the mitigating

circumstances against [the aggravating circumstance] |one or more aggravating circum-

stances)? you have found in this case. After weighing the aggravating circus stances and

the mitigating circumstances, weighing them against each other, and consi -ing both the

defendant and the crime, you shal! determine whether the defendant © o. be sentenced

to death or life imprisonment.

If you fail to unanimously agree that the death penalty should be imposed, a penalty of

life imprisonment will be imposed by the court.

You shal! now retire to the jury room and select one of you to act as foreman. That person

will preside over your deliberations and will speak for the jury here in court.

Any findings and any verdict you reach in this case must be signed by your foreman on

the form that will be provided and then you shall return with it to this courtroom.

Use Note

1. This instruction must be given in every death penalty sentencing proceeding

2. Use only applicable bracketed alternative. |Adopted, effective July 1, 1979, as

renumbered, effective March 17, 1981.)

UJI Crim. 39.34. Death penalty sentencing proceeding; sample

forms of findings; aggravating circumstance findings;

penalty findings.’

(style of case)

(circle appropriate alternative)

(We unanimously find) (we do not unanimously find) beyond a reasonable doubt the

ager EP ous 40 hy oeeints tates as charged

ee eect forth the aggravating circumstance

cae eas eee rs eee AS,

We unanimously agree that the defendant,.........-- ++: , should be sentenced to death

name of defendant

in the manner provided by law.

Serer k ea a ‘o:6

DO NOT SIGN ON THIS LINE UNLESS THE JURY

HAS FOUND AN AGGRAVATING

CIRCUMSTANCE AND YOU HAVE 580

INDICATED BY COMPLETING THE PART

ABOVE AND SIGNING YOUR NAME ABOVE

We do not unanimously agree that the defendant,.......-.. +--+ , should be sentenced to

death in the manner provided by law.

+ 6 @ 26:60. 8 218-8) 6.8 6.88. 8 9 2 8 3.F *

Use Note

1. This instruction is for use only in death penalty sentencing proceedings. The court is

to set forth the aggravating circumstances on this form prior to submission to the jury. A

separate form is to be submitted for each aggravating circumstance to be submitted to the

jury. |Adopted, effective July |, 1979; as renumbered, effective March 17, 1981.)

GENERAL EXi * ANATORY MATTERS

UJI Crim. 39.40. Sentencing proceeding; credibility of witnesses.'

You alone are the judges of the credibility of the witnesses and the weight to be given to

the testimony of each of them. In determining the credit to be given any witness, you should

take into account his truthfulness or untruthfulness, his ability and opportunity to observe,

his memory, his manner while testifying, any interest, bias or prejudice he may have and

the reasonableness of his testimony considered in the light of all the evidence in the case.

Use Note

1. This is a basic instruction and may be given in all habitual criminal and death penalty

= proceedings. | Adopted, effective July 1, 1979; as renumbered, effective March 17,

1981.

Se ee

UJI Crim. 39.41. Sentencing proceeding; defendant not testifying; no

inference of guilt.'

You must not draw any inference of admission from the fact that the defendant did not

testify in this sentencing proceeding, nor should this fact be discussed by you or enter into

your deliberations in any way.

Use Note

1. This instruction must be given on request of a defendant who does not testify in a

habitual criminal or death penalty sentencing proceeding and must not be given if the

defendant objects. |Adopted, effective July 1, 1979, as renumbered, effective March 17,

1981.)

UJI Crim. 39.43. Sentencing proceeding; duty to consult.'

Your findings must represent the considered judgment of each juror. In order to return

a finding, it is necessary that each juror agrees. Your finding must be unanimous.

It is your duty to consult with one another and try to reach an agreement. However, you

are not required to give up your individual judgment Each of you must decide the case for

yourself, but you must do so only after an impartial consideration of the evidence with your

fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own view

and change your opinion if you are convinced it is erroneous. But do not surrender your

honest conviction as to the weight or effect of evidence solely because of the opinion of your

fellow jurors, or for the purpose of reaching a finding

You are judges — judges of the facts. Your sole interest is to ascertain the truth from the

evidence in the case.

Use Note

1. This instruction must be given in every habitual criminal and death penalty pro-

ceeding. After the jury has retired for deliberation neither this instruction nor any

“shotgun” instruction shall be given. |Adopted, effective July 1, 1979; as renumbered,

effective March 17, 1981.)

UJI Crim. 39.42. Sentencing proceeding; duty to follow instruc-

tions.'

The law governing this case is contained in these instructions, and it is your duty to follow

that law. You must consider these instructions as a whole. You must not pick out one

instruction or parts of an instruction or instructions and disregard others.

Use Note

, proper instruction to be given in all habitual criminal and death penalty

Bho dvr chet nt ome “ch [Adopted effective July 1, 1979; as renumbered, effective March 17,

1981.)

et Wes ciisvart ergy

x LYE GAY 7 fer) on PR

INSTRUCTION HO,

Pas

The lew noverning thie case fe contained in theee inetructions,

and it is your duty to follow that lew, You ust consider these

instructions es a whole. You euat not pick out one inetruction or

parte of an instruction of inetructions end dieregerd othere.

e$ 4 2

AL’

17%

a

te ow apt i wie aa

aaah EES ES

Yd - F 86 *

, !

INSTRUCTION WO. a

This is @ sentencing proceeding only. The defendatt has

previously been convicted of murdec, and it is your duty to

determine the sentence to be imposed.

Although in this sentencing proceeding you should consider

ell evidence from the trial in which the defendant was found

quilty of murder, you should not reconsider the question of the

Gefendant's quilt.

479

iat

INSTRUCTION NO, 3

The State has charged that the surder of Loufe Jewett was

committed under the following egaravating circumetence:

474

The surder was of an employee of the corrections division.

’

. ge ve 5” al -

Ghee Rots oy,

* -

We

INSTRUCTION NO.

Before you may find the egeravat ing circumstance of eurder of en

employee of the corrections division, you eust find that the State

has proved to your satisfaction beyond « reasonable doubt each of the

following elements:

1. At the time defendant eurdered Lovie Jewett, defendant wee

incarcerated in the New Mexico State Penitentiary;

2. At the time Loule Jewett wee murdered, Louis Jewett wae an

employee of the Corrections Diviston of the Department of Crisinel

Justice of the State of New Mexico; and,

3, The defendant had the intent to kill Loute Jewett.

(79

.

se

Pe ay ore ae

Ware AR iar vey

INSTRUCTION WO. |

The lew provides that you cannot sentence the defendant to death

unless you ere satisfied beyond « reasonable doubt thet the wurder vee

committed under the eggravated circumstance charged. The burden fe sluays

on the State to prove beyond @ reasonable doubt that the eurder was

committed under the aggravating Circumstance charged end that the witigating

circumstances do not outweigh the eggreveting circumstances,

It fe not required thet the State prove thie beyond al) possible

doubt. The test ts one of reasonable doubt. A reasonable doubt fe « doubt

based upon reason and common sense ~ the bind of dowbt thet would make «

Teasonable person hesitete to ect in the graver and more teportent effeire

of life

(FO

‘=

al ad

~~ a

:

INSTRUCTION WO. (,

You gust decide the fesues in this case solely on evidence

edmitted by the court during the trial in which the defendant was found

guilty of eurder and such edditional evidence as may have been presented

during thie sentencing proceedieg fou must not considers anything you

msy have read or heard about the care outeide the courtrocs.

You must firet consider whether the eggreveted circumstance

charged wee present in this case An agereveted circumstance euet be

proved beyond « reasonable doubt If you Seve @ reasonable doubt es

to whether an aggravating circumstance te present, it ie your duty

to find that it is not present

In order to find en aggravating circumstance, you gust agree

unanisously

A special finding fore hes been prepared for you for the

egatavting circumstance charged For each aggravated circumstance

wpon which you have reached unanimous agreement, you shell complete

the firet pert of the finding fore indicating that the eggrevating

circumstance was found end have the foreman sign thie part. If you

cannot unanimously agree that the Stete has proved to your satisfaction

bevond @ reasonable dowht thet an egereveting circumstance wee present,

you shall complete the first part of the finding fore indicating

that the eggreveting circumstance was not unanimously egreed upon

and hewe the foreman sign this pert

(il

'

INSTRUCTION WO, l

Before determining the penalty to be feposed, you should

consider the following mitigating circumstances should you

find any of them to exiet:

1. The killing of Lowle Jewett wae not premeditated.

2. The defendant ected under circumstances which tended

to justify, excuse, or reduce the crise,

3. The defendant acted under circumstances which tended

to justify, excuse, or reduce the crime in thet cell block 3

was under-staffed, out-dated, over-crowded, and wae never

intended to serve a6 @ waximue-security facility.

6, The defendant's age.

The witigeting circumstances which I have reed for your

consideration are given to you serely aes exenples of some of

the factors that you @eay take into eccount as reasons for

deciding not to impose «@ death sentence upon ir. Carcis. You

should pay careful attention to each of these factore. Any one

of them wey be sufficient, standing alone, to support «

decision that death te not the appropriate puntshment in this

cace. But you should not limit your consideration of witigeting

circusstances to these specific fectors. You mey © consider

any other circumstas ee relating to thie case end/or to the

defendant, Mr. arcia, as reason for not imposing the Jeath

sentence.

er ce

INSTRUCTION NO. g

You slone are the judges of the credibstity of the

witnesses and the weight to be given to the testimony of each of

thee In detersining the credit to be given any witness, you

should take into account his truthfulness or untruthfulness, his

ability and opportunity to observe, his @emory, his manner

while testifying, any taterest, bias or prejudice he gay have and

the reasonableness of his testi@ony considered in che Light of

alt the ewidence in the case

ee eee

q

INSTRUCTION HO,

Evidence hee been admitted that the defendant hee

been convicted of crimes other than the crimes charged in thie

cose. You @ay consider euch evidence solely for the purpose

of detereining whether or not the witness told the truth

when he teatified tn thie caee and for no other purpose,

f INSTRUCTION WO, /O

You must not draw any infecence of edmiasion from the fact

thet the defendant 41d not testify in thie sentencing proceeding,

noe should thie fect be discussed by you or enter into your deli-

becations in any way.

INSTRUCTION WO, ~: oe

Your findings suet represent the considered judgment of each

juror. In order to return @ finding, it te necessary thet each juror

agrees. Your finding euvet be unaninove,

It fe your duty to consult with one another and try to reach

on agreement However, you ere not required to give up your individvel

judgment. Lech of you aust decide the case fee youree]?, but you suet

40 eo only after on impartial consideration of the evidence with your

fellow jurore, In the course of your deliberations, do not hesitate

to reexamine your own view end change your opinion if you ere convinced

it fe erroneous. But do not eurrender your honest conviction es te the

weight of effect of evidence solely becavee of the opinion of your

fellow jurors, of for the purpose of reaching @ finding

You ere judges ~ judges of the fecte. Your sole interest te te

eecertein the truth from the evidence in the case

j4@

If you have weninously agreed on finding that the aggravating

cirounstance charged wes present, you mst then consider the penalty to be

imposed in this case. In Getermining thet penalty to be inpoesd, you mat

conaider el) of the evidence admitted during this sentencing proceed

”~

and the evidence edmitted during the trial in wich the defendant was

fourd quilty of surder, You mat then consider Wether there are any

mitigating cirnemestarnces.

If you find there are mitigating circumstances, you must then

weigh the mitigating circumstances against Ue eqoreveting circ wtance you

hove found in thie cas. After weighing the eggraveting cirowmetarce and Ue

mitiqating circumetarces, weighing them egeinst each other, and considering

both the defercdant and the crime, you sha)l determine wetrer the Geferclant

should be sentenced to death or life inprisorment.

If you fail to unanimously eqree tat the Goeth pereity should be

imposed, @ pomaity of life imprisonment will be imposed by the Court.

You shell new retire to Ue jury roam and select aw of yu to

ect as foreman. That person will preside over your de) iterations and will

speak for the jury here in court

Any findings and any verdict you reach in tus case must be

signed by your formar on Ue form that will be provided and then you awl)

return with it to this courtrocm

jt?

/3 ote COUNTY

INSTRUCTION 8O

ihe W PHY 53

STaTi OF ATH wraieco COUNTY OF SENTA TP

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fete O LOURT

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STATE OF MEw HE ARTCO,

Pigsorref,

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RICHARD REVAL HO Cam ES jo sunt J to death in the

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