Petition — Cheadle v. New Mexico

ORIGINAL RECEIVES

y Feo.21,1994

IN THE | .

UNITED STATES SUPREME COURT Sn ee

DAVID LEON CHEADLE, 83 a 6141

Petitioner

Vv.

THE STATE OF NEW MEXICO,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE NEW MEXICO SUPREME COURT

AND MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

J. THOMAS SULLIVAN

Appellate Defender

New Mexico Public Defender Department

Member, USSCt Bar

215 W. San Francisco Street

Santa Fe, New Mexico 87501

(505) 827-3905

ATTORNEY FOR THE PETITIONER

QUESTIONS PRESENTED FOR REVIEW

I. Whether the New Mexico Supreme Court violated Petitioner's

¢

right to due process of law and to appeal in failing to decide his

issue on appeal challenging sufficiency of the evidence offered in *

support of the aggravating circumstance charged, murder of a witness?

II. Whether the New Mexico death penalty statute is constitution-

ally infirm in failing to set appropriate standards for the jury's

consideration when the applicable Uniform Jury Instruction adopted

by the Supreme Court permits the jury to consider "the defendant and

the crime" in arriving at its decision on whether the death penalty

should be imposed, where the evidence permits the jury to consider

such factors as the race and religious belief of the accused and

his victim in arriving at its decision?

III. Whether the New Mexico capital sentencing statute is violative

of due process of law in faling to provide that the State must carry

the burden of proof that death is an appropriate punishment where

the statutory scheme requires the jury to weigh the aggravating and

mitigating circumstances in arriving at its sentencing decision?

Iv. Whether New Mexico's statutory provision for granting immunity

to witnesses in criminal proceedings violates Fifth and Sixth Amend~

ment protections where the State only is granted the power to extend

a grant of immunity to a witness and no concomitant right is accorded

to the accused?

TABLE OF CONTENTS

Questions Presented for Review. ° . . ° . .

Table of Contents . ° . ° ° ° ° . °

Table of Cases and Authorities. . . . .

Petition for Writ of Certiorari . . . ° ° .

Opinion below . ° . . ° . . . . .

Jurisdiction a a . . 5 e . ‘ a .

Constitutional and Statutory Provisions . ° . . .

Statement of the Case

Summary of Material Facts . . . °

The appeal ° ° ° ° °

The opinion of the New Mexico Supreme Court . : .

Reasons for Granting the Writ (by number and subject)

I. Aggravating circumstances/insufficiency of evidence

claim/failure to review on appeal. ° ° °

II. Jury instructions/death penalty statute/jury's

consideration of “the defendant and the crime"/

vagueness/due process violation/jury's considera-

tion of race, religious beliefs of defendant and

victim . . . . . ° . °

III. Capital sentencing deliberations/jury instructions/

weighing aggravating and mitigating circumstances/

insufficient instruction on State's burden of

proof for death sentence . . “ : °

IV. Trial error/immunity/accused has no right to seek

immunity order under New Mexico law. . ° .

Conclusion. . ° . . ° ° . ° ° .

Appendix

A. Opinion of New Mexico Supreme Court

B. Petitioner's motion for rehearing in Mew Mexico

Supreme Court

C. Order denying motion for rehearing

12

16

19

23

TABLE OF CASES AND AUTHORITIES

United States Supreme Court decisions

Bullington v. Missouri, 451 U.S. 430 (1981) . ‘ -17-18

Burks v. United States, 437 U.S. 1 (1978) . ° . ° 8

Purman v. Georgia, 408 U.S. 238 (1972). . . . ° 13

Greene v. Massey, 437 U.S. 19 (297e) ° . ° . 8

Gregg v. Georgia, 428 U.S. 153 (1976) . . . : ll, 16

In re Winship, 397 U.S. 358 (1970) . . . . . 8

Jackson v. Virginia, 443 U.S. 307 (1979) ° ° : -8, 18

Washington v. Texas, 388 U.S. 14 (1967) ° ° ° ° 22

Webb v. Texas, 409 U.S. 95 (1972). ° . . . . 22

Woodson v. North Carolina, 428 U.S. 280 (1976) . . . 15

Zant v. Stephens, _U.S.__—_—s,:103 S.Ct. 2733 (1983) . 6, 8, 9,

10, ll, 12,

13, 16, 17

New Mexico decisions

State v. Austin, 80 N.M. 748, 461 P.2d 230

Pp. es ° . . . ; ° ° ° 12

State v. Buhr, 82 N.M. 371, 482 P.2d 74 (ct App. 1971) ° 15

State v. Carter, 93 N.M. 500, 601 P.2a 733 (Ct.App. 1979) . 8

State v. DeSantos, 89 N.M. 458, 553 P.2d 1265 (1976) . . 15

State v. Doe, 92 N.M. 100, 583 P.2a 464 (1978) . . . 8

State v. Garcia, 99 N.M. 771, 664 P.2d 969 sitar Ae

cert. denied, —__U-S._, 103 S.Ct. 2464. ; ‘ 14

State ex rel. Plant v. Sceresse, 84 N.M. 312, 502 P.2a4

Te) « . . . . . . . . . 21

State v. Wise, 95 N.M. 265, 620 P.2d 1290 (1980). ° . 15

Decisions from other jurisdictions

Government ms Virgin Islands v. Smith, 615 F.2d 964

r . 0) . . - o . . . . 20

State v. Bolder, 635 S.W.2d 673 (Mo. 1982) . ° ° . 17

State v. Wood, 648 P.2d 71 (Utah 1982). ° ° ° . 18

Constitutional and statutory provisions

i Const, amend. 7; * J . . 7. J . 2, 14,

17-19, 20

U.S. Const. amend. vI. . ‘ ° : ‘ ‘ - 2, 19-20

U.S. Const, amend. VIII. ° ° ° e ° ° -2, 14

U.S. Const, amend. XIV.. ° . . . . ° -2, 19

Statutes

Section 31-20A-1, N.M.S.A. (1981 Repl.Pamp.) ° . - 2-3

Section 31-20A-2, N.M.S.A. (1981 Repl.Pamp.) . . -3, 10

Section 31-20A-4, N.M.S.A. (1981 Repl.Pamp.) ° ° ° 3

Section 31-20A-5, N.M.S.A. (1981 Repl.Pamp.) ° » Se Se ae

Section 30-22-4, N.M.S.A. (1978) . ° a ‘ . ° 20

Uniform Jury Instructions

N.M.U.J.1.Crim. 39.31 (1982 Repl.Pamp.) ° ° . 3-4, 10,

16

N.M.U.J.1I.Crim. 39.33 (1982 Repl.Pamp.) . . . 4, 10

Rules of Criminal Procedure

Rule 58, N.M.R.Crim.Pro. (1980 Repl.Pamp.) . ° ° as” ane

iv.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1983

DAVID LEON CHEADLE,

Petitioner

Vv. . CAUSE NO.

THE STATE OF NEW MEXICO,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE NEW MEXICO SUPREME COURT

TO THE HONORABLE UNITED STATES SUPREME COURT:

Petitioner, DAVID LEON CHEADLE, by and through his attorney

of record, J. THOMAS SULLIVAN, Appellate Defender, New Mexico Public

Defender Department, petitions this Honorable Court to grant its

writ to review the judgment of the New Mexico Supreme Court affirm-

ing his conviction and sentence of death. Petitioner asserts that

the conviction and sentence of death should be reversed because of

violations of federal constitutional rights and error on the part

of the court below in affirming his conviction and sentence of

death for capital murder.

a

OPINION BELOW

The opinion issued by the New Mexico Supreme Court is

attached hereto as Exhibit A. A copy of Petitioner's motion for

rehearing in that court is attached as Exhibit B. The court's

order denying rehearing is attached as Exhibit C.

JURISDICTION

Petitioner invokes the jurisdiction of this Cougt pursuant

to Title 28 U.S.C. Section 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Petitioner relies on the following amendments to the United

States Constitution in support of his claim; cited in pertinent part:

V. "No person shall be held tc answer for a capital, or

otherwise infamous crime, unless on a presentment or indict-

ment of a Grand Jury...nor shall he be compelled in any crim-

inal case to be a witness against himself, nor be deprived of

life, liberty, or property, without due process of law...."

VI. "In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial...to be confronted with the

witnesses against him; to have compulsory process for obtain-

ing witnesses in his favor, and to have the Assistance of Coun-

sel for his defence.”

VIII. “Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted."

XIV. "...No State shall make of enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.”

Petitioner relies on the following New Mexico statutes in

support of his claim, cited in pertinent part by statutory section:

31-20A-1. A. At the conclusion of all capital feleny cases

heard by jury, and after proper charge frem the court and argu-

ment of counsel, the jury shall retire to consider a verdict

of guilty or not guilty without any consideration of punishment.

B. Upon a verict 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 sen-

tenced to death or life imprisonment as authorized herein. In

a jury trial, the sentencing proceeding shall be conducted as

soon as practicable by the original trial judge before the

original trial jury.... >

C. In the sentencing proceeding, all evidence admitted at the

trial shall be considered and additional evidence may be

presented as to the circumstances of the crime and as to

any aggravating or mitigating circumstances 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 shall give

appropriate instructions and allow argument and the jury

shall retire to determine the punishment to be imposed....

31-20A-2. 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;

(3) whether other mitigating circumstances exist.

B. After weighing the aggravating circumstances and the

mitigating circumstances, weighing them against each other,

anc considering both the defendant and the crime, the jury

or judge shall determine whether the defendant should be

sentenced to death or life imprisonment.

31-20A-4. A. The judgment of conviction and sentence of

death shall be automatically reviewed by the supreme court

of the state of New Mexico.

C. The death penalty shall not be imposed if:

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

aggravating circumstance;

(2) the evidence supports a finding thatthe mitigating cir-

cumstances 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.

31-20A-5. 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:

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;

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 pur-

pose of preventing report of the crime or testimony in any

criminal proceeding, or for retaliation for the victim having

testified in any criminal proceeding.

Petitioner also relies upon the following New Mexico Uniform

Jury Instructions, set out in pertinent part as given in his case:

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.

UJI Crim. 39.33. If you have unanimously agreed on a finding

that 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 sen-

tencing 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 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 consider-

ing 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, a penalty of life imprisonment will be

imposed by the court.

Petitioner finally notes that his claim for relief also involve

the construction given Rule 58, New Mexico Rules of Criminal Procedur

which provides:

(a) Issuance of order. If a person has been or may be called

to testify or to produce a record, document, or other object

in an official proceeding conducted under the authority of

a court or grand jury, the district court for the judicial

district in which the official proceeding is or may be held

may, upon the written application of the prosecuting attorney,

issue a written order requiring the person to testify or to

produce the record, document, or other object notwithstanding

his privilege against self-incrimination.

(b) Application. The court may grant the application and

issue a written order pursuant to this rule if it finds: (1)

the testimony, or the record, document, or other object may

be necessary to the public interest; and (2) the person has

refused or is likely to refuse to testify or to produce the

record, document, or other object on the basis of his privi-

lege against self-incrimination.

STATEMENT OF THE CASE

Summary of Material Pacts

Petitioner relies on the opinion of the New Mexico Supreme

Court with respect to the recitation of the facts in this case.

Briefly, the facts adduced at trial showed the following: In the

early morning hours of September 10, 1981, complainant Leslie Goodwin

and the deceased, Gabe Nava, left a bar in Albuquerque and were

confronted by Petitioner, who was armed with a handgun. At Petition-

er's direction and as a result of his threat tc kill them, the two

walked a short distance to a place between buildings where they were

ordered to face one wall in "spread eagle" position. Thereupon,

Petitioner robbed both of money before ordering them to walk further

down the alley. When they finished walking, Petitioner again ordered

both into the "spread eagle” position, shot the deceased and ordered

Goodwin to remove her clothes, threatening death to gain compliance.

Petitioner then attempted to rape Goodwin but was unsuccessful at

gaining an erection. Thereafter, Petitioner shot the deceased a

second time, ordered Goodwin to the deceased's car and as he entered

the vehicle and unlocked the door for her, she fled and reported the

incident to a police patrolman after flagging him down. Nava died

from the gunshot wounds later that morning.

The appeal

Petitioner brought his appeal from conviction for capital

murder with sentence of death imposed and other offenses arising

from the September 10, 1981 shooting of Gabe Nava and kidnapping

and attempted criminal sexual penetration of Leslie Goodwin. Under

New Mexico law, Petitioner was statutorily entitled to automatic

review of the judgment and sentence of the trial court since the

death penalty was assessed. All four issues raised by this petition

?

The opinion of the New Mexico Supreme Court

In affirming Petitioner's convictions and sentence of death,

the New Mexico Supreme Court rejected all contentions raised on

appeal which are now raised in this petition. First, in paragraph

Iv of its opinion, the court held that Petitioner's claim of insuffi-

ciency of evidence supporting the jury's finding that he murdered

Nava to keep him from being a witness to the crime constituted an

attack on jury instructions which could not be raised for the first

time on appeal. The court then noted that even if Petitioner were

correct in his argument, a finding of evidentiary insufficiency

would not require reversal of the death sentence and remand for

new sentencing hearing, relying on this Court's recent decision in

Zant v. Stephens, 103 S,Ct. 2733 (1983). Petitioner's motion for

rehearing, specifically requesting the court review the contention

on the merits and as raised, resulted in denial.

Second, the court rejected both attacks on the New Mexico

death penalty statute which concerned the lack of direction given

the jury on the two matters raised by this petition. The court held

that the arguments were essentially waived by trial counsel's failure

to object to the instructions at trial. Moreover, the court relied

on Zant to note that a state is not constitutionally required to

adopt specific standards for the weighing process to be engaged in

by the jury in determining whether death is the appropriate sentence

to be imposed. Although Petitioner had expressly objected to the

vagueness of the phrase “the defendant and the crime" as a factor

to be considered by the jury in setting punishment, the opinion of

the court below does not expressly deal with the claim made that

this phrase may allow the jury to consider non-statutory aggravating

circumstances, as precluded by Section 31-20A-5, N.M.S.A. (1981

Rep] .Pamp.).

Finally, in reviewing Petitioner's due process contention

concerning the power of a prosecutor to seek an order of immunity

when no equivalent right exists for the accused, the court below

held that the rule conferring this power on the State did not provide

any right for the accused to seek a grant of immunity for a ‘defense

witness; that defense counsel failed to comply with the procedural

requizeneats of the rule which require that the request for immunity

must be made in writing; and that the evidence which Petitioner sough

to produce by the proposed grant of immunity would not have been

material and exculpatory in light of his alibi defense.

REASONS FOR GRANTING THE WRIT

I. A

Petitioner first contends that the New Mexico Supreme Court

incorrectly disposed of his sufficiency issue by characterizing it

as an attack on jury instructions which could not be raised for the

first time on appeal. In fact, the issue related to the sufficiency

of evidence supporting the jury's finding that Petitioner killed

Nava to prevent him from becoming a witness against him. Under

New Mexico law, sufficiency of the evidence is a matter which can

be raised for the first time on appeal because it is characterized

:

as fundamental error. State v. Doe, 92 N.M. 100, 583 P.2d 464 (1978).

In his motion for rehearing, Petitioner expressly requested

the court to consider and rule on his contention that the evidence

failed to show that he had shot the deceased to prevent him from

serving as a witness to the offense. The court denied the motion

without commenting on the merits of his argument.

Petitioner now contends that the New Mexico Supreme Court has

committed constitutional error in two respects: first, its opinion

has deprived him of appellate review of his evidentiary sufficiency

claim, which he based on this Court's holdings in Jackson v. Virginia,

443 U.S, 307 (1979); In re Winship, 397 U.S. 358 (1970) and in

the New Mexico Court of Appeals case adopting Jackson, State v.

Carter, 93 N.M. 500, 601 P.2d 733 (Ct. App. 1979); and second, the

Court has misconstrued Zant v. Stephens as dispositive of the

proper recourse when an aggravating circumstance is found to be

unsupported by sufficient evidence at trial. With respect to the

first point, Petitioner's right to have evidentiary sufficiency

claims reviewed on their merits on appeal is well-established by

the prior decision in Jackson, supra, and also the decisions rendered

in Burks v. United States, 437 U.S. 1 (1978) and Greene v. Massey,

437 U.S. 19 (1978).

“w

Second, the New Mexico Supreme Court denied review in con-

struing the decision in Zant v. Stephens to mean that a finding of

evidentiary insufficiency as to one of the two aggravating circum-

stances charged would not affect the sentence of death imposed.

In Zant this Court held that where a statutory aggravating circum-

stance relied upon by the state is subsequently disapproved, a

sentence of death would not necessarily be vacated when the sentencing

jury had found an additional, proper aggravating circumstance. There,

the finding of one statutory aggravating circumstance charged

was sufficient to permit the jury, under Georgia's death penalty

sentencing statute to return a sentencing verdict of death. Thus,

the fact that one statutory aggravating circumstance fell through

judicial decision did not require reversal of the sentence of death

since the other relied on by the jury remained affirmed.

The New Mexico Supreme Court erred in concluding that Zant v.

Stephens announced a rule that a finding of insuf’iciency as to an

aggravating circumstance charged would not require reversal and

remand for a new sentencing proceeding. In fact, the Court there

distinguished Georgia's capital sentencing scheme in which aggravat-

ing circumstances serve merely to limit the class of convicted mur-_

derers who may be subjected to death as a punishment from those

state statutes which require the jury or trial court to engage in a

weighing of aggravating and mitigating circumstances in arriving at

the sentencing decision. 103 S,Ct. at 2741. In footnote 12 of the

opinion, especially, the Court notes this distinction:

"See e.g. Williams v. State, 274 Ark. 9, 621 S.W.2d 686,

687 (Ark. 1981); State v. Irwin, 304 N.C. 93, 282 S.E.2d

439, 448-449 (NC IS81); State v. Moore, 614 S. W.2d 348,

351-352 (Tenn. 1981); Hopkinson v. State, 632 P.2d 79, 90,

n. 1, 171-172 (Wyo. iss. In each of these cases, the

state supreme court set aside a death sentence based on

both valid and invalid aggravating circumstances. Respondent

advances these cases in support of his contention that a

similar result is required here. However, examination of the

relevant state statutes shows that in each of these States,

not only must the jury find at least one aggravating circum-

stance in order to have the power to impose the death sentence;

in addition, the law requires the jury to weigh the aggravating

circumstances against the mitigating circumstances when it

10

Germanys

decides whether or not the death penalty should be imposed."

The New Mexico statute, Section 31-20A-2, N.M.S.A. (1981 Repl.Pamp.),

similarly requires the jury to weigh the aggravating and mitigating

circumstances in arriving at its sentence. This directive also

appears in the Uniform Jury Instruction adopted to implement the

statute, which provides in appropriate part, as given:

"If you have unanimously agreed on a finding that one or

more of the aggravating circumstances charged were present,

you must 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 proceed-

ing 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.

"75 you find there are mitigating circumstances, you must

then we 7 e gating circumstances aga nst one or more

agg eavat f circumstances you ave foun n this case. After

weighing t aggravat ng circumstances and the m Egating

circumstances, we ng them against each other, and considerin

Both the defendant and the orine Ou shall determine whether

the defendant should be sentenced to death or lite 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."

N.M.U.J.I. Crim. 39.33 (emphasis added); R. at 284.

Moreover, N.M.U.J.I. Crim. 39.31 specifically provides that

the sentence of death cannot be imposed unless the State carries

its burden of showing that the "mitigating circumstances do not

outweigh the aggravating circumstances." This instruction was given

in Petitioner's case. R, at 282. Thus, the weighing process which

distinguishes the Georgia statute from those noted by this Court in

footnote 12 of the Zant decision is also characteristic of the New

Mexico death penalty sentencing procedure.

Because New Mexico capital juries are charged to weigh aggravat-

ing and mitigating circumstances and because the State must prove

that the mitigating circumstances to not outweigh the aggravating

circumstances in order to sustain a sentence of death, Petitioner's

right to review was compromised by the mischaracterization of his

point of error by the New Mexico Supreme Court on appeal. In light

of the distinguishing features of the New Mexico statute, when com-

pared with the Georgia statute reviewed in Zant v. Stephens, a deci-

11

sion on the merits of his claim of insufficient evidence supporting

one of the aggravating circumstances charged is constitutionally man-

dated. A finding of evidentiary insufficiency would necessarily

require that Petitioner be accorded a new sentencing hearing since

vhe court below could not conclude that the jury would have imposed

the same sentence without its finding that Petitioner committed murde:

under both of the circumstances charged as aggravating circumstances

in his case.

Petitioner notes that the question of whether a death sentence

arrived at by the weighing process must be reversed when one of the

aggravating circumstances is subsequently invalidated—or where in-

sufficiency of evidence requires reversal of the jury finding on one

aggravating circumstance—has been expressly left open by the Court's

decision in Zant v. Stephens, 103 S.Ct. at 2750; see also Gregg v.

Georgia, 428 U.S. 153, 196-197 (1976).

12

II.

Petitioner next attacks the implementation of the New Mexico

death penalty statute through the Uniform Jury Instructions given

at trial. Petitioner contends that the jury instruction which re-

quires the jury consider "the defendant and the crime” in addition.

to weighing aggravating and mitigating circumstances is constitution-

ally infirm in failing to appropriate standards for deliberation

and in authorizing the jury to consider both non-statutory aggravat-

ing circumstances and constitutionally impermissible factors in

arriving at its decision. At the outset, Petitioner concedes that

the New Mexico Supreme Court held that the issue addressed here

was deemed waived by failure to object to the instructions, as given,

at trial. However, Petitioner notes that the court went on to dis-

pose of the contentions made on appeal on their merits, holding that

the Court's opinion in Zant v. Stephens rejected the contention that

the constitution required adoption of specific standards to guide

the jury in its deliberations. Petitioner also suggests that the

court erred in applying a rule of waiver where the attack essentially

went not to the specific language or applicability of the instructions

given, but to the constitutionality of the statute upon which the

instructions were predicated. Under New Mexico law, a question of

constitutionality of a statute may be raised on appeal for the

first time as jurisdictional error. State v. Austin, 80 N.M. 748,

461 P.2d 230 (Ct. App. 1969). Consequently, since the substantive

basis of his attack is the unconstitutionally of the New Mexico

death penalty statute, Petitioner's point is preserved for review

in this Court, particularly since the New Mexico court relied on

Zant v. Stephens for its holding that Petitioner's point was incor-

rect on the merits:

"(T]he Constitution does not Fr qeize a State to

spec ¢ standards for instructing tr an

sideration of aggravating anc 3 =ating Circume’ Cl pamateeees...°

(Slip opinion, at 10; 103 S.Ct. at 2750; emphasis in original).

13

The instruction that the jury is to consider "the defendant

and the crime” in arriving at its sentencing decision is unconsti-

tutionally vague and deprives an accused of due process of law for

two significant reasons. First, as argued in Petitioner's brief

to the New Mexico Supreme Court, neither the statute nor the Uniform

Jury Instruction on point limit the jury's consideration of factors

which might be properly characterized under the topic: "the defendant

and the crime" to factors suggesting mitigation of the punishment

to be imposed. While this Court in Zant held that the sentence of

death should be imposed only if appropriate in light of the "character

of the individual and the circumstances of the crime,” 103 S.Ct. at

2744, New Mexico has provided that the only aggravating circumstances

which may be considered by the jury are those set out by statute.

Section 31-20A-5, N.M.S.A,. (1981 Repl.Pamp.).

The ambiguity of the phrase and the lack of direction given

the jury for its proper consideration, however, permit a jury to

consider non-statutory factors as “aggravating circumstances" in

arriving at the decision whether or not to impose death as punishment.

As counsel for appeal in his direct appeal argued before the New

Mexico Supreme Court, the vagueness and lack of direction contained

in the instruction would have even permitted the trial jury to con-

sider constitutionally impermissible factors in imposing death. For

instance, the evidence in this case demonstrates that Petitioner is

a black male who expressed belief in the Devil, as opposed to God,

while his victims were a prominent Hispanic male who wore a crucifix

and an Anglo female. Following the reasoning of the plurality in

Purman v. Georgia, 408 U.S. 238 (1972) (especially opinion of Douglas,

J.), @ sentence of death based on any of these fectere--race or eth-

nicity, religious belief or gender—of the perpetrator would be con-

stitutionally improper. Petitioner suggests an equally improper

consideration for the jury would be the race or ethnic background,

religious belief or gender of the victim as factors in determining

whether the accused should be sentenced to death for the crime. WNever-

14

theless, the ambiguity of the phrase and lack of supporting directive

to the jury for its use in making the determination inherently ren-

der jury verdicts in cases where these types of facts are matters of

evidence suspect. Petitioner's sentence in this case may well have

been sentenced to death in this case because he was an irreverent

black male who killed a Hispanic male and attempted to rape an Anglo

female, irrespective of whether the offense itself merited such a

sentence. Consideration of the "defendant" and the “crime” lends itself

to execution of those who are unpopular, socially stigmatized or

members of the most persecuted of society's minority groups. For that

reason, the unbridled discretion of the jury in relying on these

factors in making a capital sentencing decision is violative of

due process of law. U.S. Const., amends. V and VIII.

Finally, in holding that Petitioner had essentially waived his

point of error in failing to attack the instructions at the trial

court level, Petitioner would suggest that the New Mexico Supreme

Court does some disservice to counsel by the implication that these

issues had previously been disposed of by the decision in State v.

Garcia, 99 N.M. 771, 664 P.2d 969 (1983), cert. denied, _U.S.__,

103 S.Ct. 2464. Petitioner went to trial prior to the decision being

rendered in Garcia and, thus, had no notice that the court had dis-

posed of his attacks in that case. Moreover, Petitioner's brief to

the New Mexico Supreme Court was itself filed before the court reached

its decision in Garcia, the first case to interpret the New Mexico

death penalty statute. Traditionally, a number of New Mexico cases

had recognized that challenges to jury instructions may be made for

the first time on appeal and without objection at the trial level.

Petitioner relied on these decisions in support of his argument in

the court below; with the opinion in Garcia, however, the court held

that the instructions were correct, ruling on the merits while noting

waiver of the issue by failure to object at trial. Since the objec-

tions are based on constitutional attack aimed at the statute and its

implementation in practice through the use of mandatory, uniform

15

jury instructions, Petitioner believes the court has essentially

limited his right to appeal based on unconstitutionality of the death

penalty statute through application of the doctrine of waiver.+

1 The cases cited by Petitioner in his brief in chief to the New

Mexico Supreme Court which have held that attacks on jury instructions

may be raised for the first time on appeal include: ee ’

’ ° ’

95 N.M. 265, 620 P.2d 1290 (19860); Vv

553 P.2d 1265 (1976); and state v. Bahr. 1 WN. 37, 482 P.2d 74

(Ct. App. 1971). Peti also suggested that the need for

review of the instructions was constitutionally justified by the “need

for reliability" in imposing sentences of death, enunciated by the

Court in Woodson v. North Carolina, 428 U.S. 280, 305 (1976).

16

Iil.

Petitioner also attacks the failure of the New Mexico death

penalty statute and the promulgated jury instructions to prescribe

a burden of proof requiring the State to prove that death was the

appropriate sentence to be assessed beyond a reasonable doubt. The

statute does provide that punishment of death cannot be imposed if

the State fails to prove beyond a reasonable doubt that the "mitigat-

ing circumstances do not outweigh the aggravating circumstances."

N.M.U.J.I. Crim. 39.31. The problem with this standard is that it

involves proof of a negative proposition and wholly fails to guide

the jury once the prescribed standard has been met by the State.

Thus, if the evidence relating to aggravating and mitigating circum-

stances leaves the jury with a collective belief that the two balance

out, no sentencing guideline suggests how the jury is to resolve the

problem. In the New Mexico Supreme Court, counsel for Petitioner

argued that the only acceptable standard is that aggravation must

outweigh mitigation beyond a reasonable doubt if the jury is to

assess the penalty of death.

The New Mexico Supreme Court relied on Zant v. Stephens in

concluding that no additional sentencing guidelines are constitution-

ally required under the New Mexico statute. Since New Mexico has

adopted a weighing approach to jury deliberation of aggravating and

mitigating circumstances, Petitioner believes reliance on Zant v.

Stephens is misplaced. Clearly, in Zant this Court held that the

Georgia sentencing procedure is constitutionally permissible in light

of the Court's previous holding that the Georgia statute passes

constitutional muster in Gregg v. Georgia, 428 U.S. 153 (1976).

The Georgia statute, in contrast to the New Mexico statute, uses

aggravating circumstances as a means of narrowing the potential class

of persons who may be liable for a sentence of death and does not

provide that these circumstances are to be weighed against any

mitigating circumstances developed through the evidence in arriving

at the sentence.

17

This Court, in Zant, did note that the constitution does not

require the states to adopt specific standards for the consideration

of aggravating and mitigating circumstances, as the New Mexico Supreme

Court noted in disposing of the argument. 103 S.Ct. at 2750. How-

ever, Petitioner believes the court below misconstrued the meaning

of the passage quoted to suggest that under any system of aggravation

and mitigation the constitution requires no particular action in

guiding the discretion of the jury. In fact, the quoted passage

suggests another interpretation—that no state is required to impose

a statutory system of weighing aggravating against mitigating cir-

cumstances in the capital sentencing process adopted. Georgia ob-

viously did not and its statute was deemed constitutionally acceptable

on review. New Mexico has chosen to adopt the weighing approach,

however, in contrast to the approaches taken by Georgia, and by

Texas. See 103 S.Ct. at 2742, fn. 13, for example.

In adopting a weighing approach, Petitioner contends that New

Mexico is required to establish either by statute or by uniform

instruction a correct burden of proof upon the state when it seeks

to impose the death penalty. Because the full protections of the

Fifth Amendment are implemented in capital sentencing decisions,

Bullington v. Missouri, 451 U.S. 430 (1981), Petitioner contends that

the proper standard of proof should be applicable to those proceedings

In Bullington, this Court held that because Missouri had chosen to

adopt a sentencing procedure whereby the state bore some burden of

proof, failure of proof could be found in a jury's verdict of life

imprisonment amounting to a bar to further potential imposition of

death as a punishment after grant of new trial sn appeal. Interesting

ly, the Missouri statute, while predicated on a burden of proof as-

signed by statute to the state, did not feature a standard of proof

beyond a reasonable doubt as requisite to a finding that death was

the appropriate sentence to be imposed. State v. Bolder, 635 S.W,2d

673, 683-684 (Mo. 1982). The issue raised by Petitioner was not

reviewed by the Court in its consideration of the Missouri statute

18

under scrutiny in Bullington. Consequently, Petitioner asserts that

Bullington provides a starting point for the analysis of what burden

should be borne by the state in a capital sentencing proceeding, and

not a final decision.

New Mexico currently requires the state to meet a limited burde

of proof in capital sentencing proceedings since no death sentence

can be imposed unless the proof shows beyond a reasonable doubt that

the mitigating circumstances do not outweigh the aggravating circum-

stances. Petitioner finds support for his argument in the decision

of the Utah Supreme Court in State v. Wood, 648 P.2d 71 (1982) in

which the court held that the burden of proof in a capital sentencinc

proceeding is that the evidence show beyond a reasonable doubt that

death is both justified and appropriate in the circumstances of the

case. The New Mexico statute and jury instructions fall far short

of this standard. If capital sentencing decisions are to be accordec

the full protections of the Double Jeopardy Clause, as the Court

suggested in Bullington, then the jury decisions which bar subsequent

higher punishment on new trial must rest’on an appropriate constitu-

tional standard. That standard is the same as that imposed in all

cases on the guilt/innocence determination—proof beyond a reason-

able doubt. Jackson v. Virginia, 443 U.S. 307 (1979).

Petitioner suggests that this is a proper case in which the

Court should review the appropriate standard or burden of proof whict

must be imposed when a state adopts a weighing approach to aggravatir

and mitigating circumstances in capital sentencing proceedings.

19

Iv.

Petitioner finally attacks the New Mexico Rule of Criminal

Procedure which extends to the State the right to seek immunity

to compel testimony from a reluctant witness relying on the Pifth

Amendment, but deprives an accused of a similar right. The grant

of this substantive right to the prosecution only violates the Fifth,

Sixth and Fourteenth Amendments to the United States Constitution.

In essence, the State is able to use this power to compel testimony

highly detrimental to the accused, who here was denied the opportunity

to use the immunity device to produce additional testimony in support

of his alibi defense.

The New Mexico Supreme Court, in reviewing the point of error

raised on direct appeal, ruled that the substantive rights of Peti-

tioner had not been violated for three reasons: first, the court

held that the right to seek an order of immunity simply was not

extended to Petitioner by the applicable rule; second, that Petitioner

had failed to follow the correct procedure in seeking the order; and

third, that the evidence which Petitioner sought was not clearly

exculpatory and essential to the defense. Petitioner submits that

all three reasons advanced by the court below are constitutionally

inadequate to justify promulgation and application of such a biased

rule of procedure in a criminal trial, particularly when the penalty

to be imposed is potentially death.

Pirst, while the court is correct in holding that the rule

does not extend to the accused the right to seek an immunity order,

it is the New Mexico Supreme Court's own rule of procedure which pre-

cludes defensive use of the immunity power. The court noted:

"Since there is no constitutional provision or statute in

this State allowing application for the granting of immunity

to defense witnesses, we must follow the rule of criminal

procedure set forth above. [Rule 58, Rules of Criminal Pro-

cedure] ."

(Slip opinion, at 7). The rule, however, was promulgated by the

court and its conclusion that it is bound by the terms of the rule

it created begs the federa). question raised below; whether the

“se 4

20

rule, inequitable in terms of availability of the remedy provided,

violates an accused's Fifth and Sixth Amendment rights to due process

of law and confrontation/compulsory process, when the defense and

prosecution powers are compared. For the court below to conclude

that it is bound in its interpretation of these federal constitutional

concerns by its prior enactment of a rule granting the substantive

power to seek immunity to compel testimony to the state only reflects

an insensitivity to construe state statutes and rules of procedure

consistently with the guarantees of the United States Constitution.

Similarly, the court's concern with failure of Petitioner's

counsel below to comply with the procedure requisites of the rule

misses the point, as well. Compliance with the procedures would

have been futile, according to the court's holding, since an immunity

order could not be granted by the trial court on application by

the defense in any event.

Finally, the court's finding that the evidence was neither

clearly exculpatory nor essential to the defense is predicated on

its reading of Petitioner's authority in the court below, Government

of Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir. 1980). There,

the Third Circuit held that in certain limited circumstances, an

accused in a federal prosecution may be entitled to have the trial

court order the government to grant immunity to a defense witness.

One of the requirements imposed by the Third Circuit is that the

evidence be "clearly exculpatory” and "essential" to the defense.

Petitioner relies on Government of Virgin Islands v. Smith because

it represents a recognition of the problems faced by defendants who

do not have the power to compel testimony over an assertion of Fifth

Amendment protections. However, Petitioner notes that the thrust

of his argument in the Court below was not that the New Mexico

Supreme Court should adopt the Third Circuit approach in this case,

but that the provisions relating to applications for immunity orders

be made applicable to all parties, equally, as the Committee Commen-

tary to Rule 58 (1981 Supp.) had suggested.

21

Rule 58 does not require that the evidence sought under the

State's application for an immunity order be "clearly inculpatory”

and "essential" to the State's case. Rather, it merely requires a

showing that the evidence sought be "necessary to the public interest"

and that the person for whom the immunity order is sought is likely

to refuse to give the evidence absent the order. Making the same

requirements applicable to defense application for an immunity order,

the only showing required of Petitioner should have been that the

evidence was necessary, rather than essential and clearly exculpatory,

to his defense. Under New Mexico case law, however, it is clear

that no power to grant an accused's application for an order of

immunity is extended to the trial court, irrespective of what degree

of materiality might be shown by the defense.

Petitioner's right to compulsory process and due process of

law were abridged by the application of Rule 58, particularly in

light of the fact that the State was able to offer damaging testimony

through another witness by use of plea negotiations, a tool uniquely

available to the State. See State ex rel. Plant v. Sceresse, 84 N.M.

312, 502 P.2d 1002 (1972). This witness, John Thomas Young, testified

as a result of a negotiated plea agreement which included dismissal

of one charge, guarantee of a probated sentence on another and agree-

ment that the State would not prosecute the witness as an habitual

offender. Young's testimony was that Petitioner had admitted shooting

the victim, had told Young that he shot the victim to keep him from

identifying him and that shooting the victim "felt excellent."

Petitioner sought to develop his alibi by confirming through

another witness, John Archie (known as "Jay Baby"), that he had

spent the night of September 10th/llth with him. The court below 7

held this evidence was not clearly exculpatory because the shooting

had occurred during the morning hours of September 10th and, thus, «

Petitioner's whereabouts and actions that night would not anid

his alibi, inferring the court's conclusion. However, in a capital

murder case, it cannot be conclusively said that the accuracy of

ihe

22

of Petitioner's own testimony in his defense would not have been

qualitatively enhanced had it been factually supported by the testi-

mony Of witness Archie. Archie refused to testify, asserting his

Fifth Amendment privilege after the State had indicated that his

testimony might subject him to prosecution for harboring a felon

under Section 30-22-4, N.M.S.A. (1978). This subtle coercion by the

State could not be overcome by Petitioner since the trial court ruled

that he could not apply for an order granting immunity to protect

witness Archie in giving this testimony. The restrictive nature of

Rule 58 thus fails to guard against abuse of prosecutorial power

in subtle intimidation of defense witnesses because no right is

extended to the accused to counter the threat of prosecution through

grant of immunity for the testimony sought. The right of an accused

to develop testimony of his witnesses free from oppressive threat

of prosecution has been recognized by this Court. Webb v. Texas,

409 U.S. 95 (1972).

Here, the rule promulgated by the New Mexico Supreme Court

unfairly limits the defense right of compulsory process guaranteed

by the Sixth Amendment; Washington v. Texas, 388 U.S. 14 (1967),

when compared to the power to compel testimony granted to the State.

In this case, Petitioner could not offer the testimony of an impor-

tant witness who would have supported his own testimony, in part.

In a capital prosecution, especially, the right to develop a defense

through compulsory testimony of witnesses should be zealously guarded.

Petitioner's capability of developing his defense was clearly abridged

by a rule denying him power to compel testimony which grants the

power to the State to do so through the use of immunity orders.

The disposition of this issue in the court below is inadequate to

resolve the important question of constitutional law raised by this

petition.

23

CONCLUSION

Based on the foregoing points of error, Petitioner prays

this Honorable Court issue its writ to review the judgment of the

New Mexico Supreme Court.

Respectfully submitted,

/Appellate Defender

a New Mexico Public Defender Department

215 W. San Francisco Street

Santa Fe, New Mexico 87501

(505) 827-3905

ATTORNEY FOR THE PETITIONER

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1983

DAVID LEON CHEADLE,

Petitioner

Vv. CAUSE NO.

THE STATE OF NEW MEXICO,

Respondent

ae

EXHIBIT A: OPINION OF THE NEW MEXICO SUPREME COURT

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

STATE OF NEW MEXICO,

Plaintiff-Appellee,

vs. No. 14,177

DAVID LEON CHEADLE,

Defendant-Appellant. eee iat oe

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APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Harry E. Stowers, Jr., District Judge

Janet Clow, Chief Public Defender

J. Thomas Sullivan, Appellate Defender

Santa Fe, New Mexico for Appellant

Leo C. Kelly

Albuquerque, New Mexico Trial Counsel

Paul Bardacke, Attorney General

Anthony Tupler, Assistant

Attorney General

Santa Fe, New Mexico my for Appellee

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OPINION

RIORDAN, Justice.

David Leon Cheadle (Cheadle), was convicted of murder in the first degree

for which he received a sentence of death. Cheadle was also convicted of

kidnapping in the first degree for which he received nineteen years imprisonment,

kidnapping in the second degree for which he received ten years imprisonment,

two counts of armed robbery in the second degree for which he received ten years

imprisonment for each count, and criminal sexual penetration in the second

degree for which he received four years imprisonment. Cheadle appeals. We

affirm.

The issues on appeal are:

I. Whether the trial court erred in denying Cheadle's motion to strike

certain identification testimony.

Il. Whether the trial court erred in refusing to grant immunity to a defense

witness.

il. Whether the jury instructions used for sentencing were inconsistent and

confusing thereby providing inadequate standards for the jury to use in deciding

between the death penalty and life imprisonment.

IV. Whether Cheadle is entitled to a new sentencing proceeding because one

of the two aggravating circumstances submitted to the jury was not justified by

the evidence.

V. Whether Cheadle's sentence of death should be set aside as excessive

and/or disproportionate under the circumstances.

VL Whether New Mexico's Capital Felony Sentencing Act, NMSA 1978,

Sections 31-20A-1 through 31-20A-6- (Repl.Pamp.1981), is unconstitutional

because the death penalty is crue! and unusual! punishment.

Leslie Goodwin (Goodwin) testified that on September 10, 1981, at

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14

approximately 2:15 a.m., she and Gabe Nava (Nava) left Ned's El Portal (Ned's), a

bar in Albuquerque, New Mexico. They walked over to Nava's car and stood there

in the parking lot talking. Cheadle approached them branishing a gun. Cheadle

stated, "Come on let's go,. . . I will kill you if you don't," and then by waving a

silver -colored gun instructed them in which direction to proceed. After walking a

short distance and stopping between buildings, Cheadle instructed Nava and

Goodwin to stand facing the wall of the building in a "spread eagle" position with

their backs to Cheadle. Cheadle then demanded money which they both gave to

him. Nava was then instructed to take off his jeans and shirt, which he did. Nava

and Goodwin were then ordered to move about ten to twelve feet down the alley:

They moved to a fence, when again they were ordered to put their hands on the

fence and stand in a "spread eagle” position. Cheadle then ordered Goodwin to

remove her clothes. At about that time, Cheadle shot Nava for the first time.

Cheadle again demanded that Goodwin remove her clothes and told her that he

would kill her if she did not. She complied. Cheadle then attempted to rape

Goodwin, but could not get an erection. Goodwin was then instructed to put her

clothes back on. Art that time, Cheadle shot Nava a second time. Cheadle

ordered Goodwin back to Nava's car. Upon arriving at Nava's car, Cheadle then

got into the front seat and reached over to unlock the driver's door for Goodwin.

Goodwin ran and stopped a passing police car, explained what happened and gave a

description of the offender to the police.

Nava died later that morning from gunshot wounds to the head.

L Wentification Testimony.

A. Out-of-Court Kentification

Cheadle moved to "strike the identification of all the witnesses." The basis

of the motion was that the identifications were unreliable because the witnesses

had viewed Cheadle's picture furnished to the media by the police before they

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made the identification from a photographic lineup or the in-court identification.

The trial court denied the motion.

The test with respect to Suppression of out-of-court photographic

identification is "whether the ' ‘photographic identification procedure was so

impermissibly Suggestive as to give rise to a very substantia! likelihood of

irreparable misidentification.''" State v. Nolan, 93 N.M. 472, 476, 601 P.2d 442,

447 (Ct.App.), cert. denied, 93 N.M. 683, 604 P.2d 821 (1979) (citations omitted.)

To determine this, we must decide whether under the “totality of the

Circumstances" the identification was reliapie, even if the confrontation

procedure was suggestive. Manson. Correction Commissioner v. Brathwaite, 432

U.S. 98 (1977); State v. Nolan. In Manson, Correction Commissioner v.

LL

Brathwaite, the United States Supreme Court set forth five factors to weigh in

deciding whether out of court identification was suggestive:

1) The opportunity to view. ...

2) The degree of attention. ... :

3) The accuracy of the description. ...

%) The witness’ level of certainty....

5) The time between the crime and the confrontation. ...

Id. at 114 & 115,

Four witnesses were shown a photographic array of five or six pictures

which included Cheadle, after Cheadle’s picture had been on television and in the

newspaper, as the person responsible for Nava's killing.

We will first apply this test to Goodwin. Goodwin testified that she saw

Cheadle's face clearly. Goodwin also testified that at times during the incident,

she talked directly to Cheadle, face to face, at a distance of inches. Goodwin

Bave a description of the offender at the scene and later to Officer Putman of the

Albuquerque Police Department, before the photographic identification. At the

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hospital, Goodwin was shown a photographic array which did not contain Cheadle's

picture. Upon viewing the array, Goodwin told the police officer that the

assailant was not among the pictures. The day following the incident, after she

was released from the hospital, two friends of Goodwin testified that they stopped

by Goodwin's home. During a news broadcast, Goodwin saw Cheadle's picture on

television. She told her friends, "Oh, my God that's him except he's got an afro in

the picture." Goodwin immediately called the police station. Approximately six

days later, Goodwin picked Cheadle's picture from a photographic array that

contained a picture of Cheadle that was different from the one shown on

television. At the trial, Goodwin made a positive in-court identification of

Cheadle, as the man that killed Nava and attempted to rape her.

Julie Jones (Jones), a patron at Ned's the night of the incident, also

identified Cheadle. Jones testified that Cheadle was sitting at the bar when

Jones walked over to the bar to speak to Nava at approximately 1:15 a.m.

Cheadle said something to her which she ignored. Jones, a hairdresser,

remembers Cheadle particularly because of his slicked back hair style. On

September 14, 1981, after seeing a picture of Cheadle on television, Jones picked

Cheadle's picture from a photographic array. At trial, Jones positively identified

Cheadle as being in Ned's the night of the incident. She also testified that when

she picked Cheadle's picture from the photographic array, she was relying only on

what she saw at Ned's the evening of the incident.

Ken Gaddis (Gaddis), the manager of Ned's, also identified Cheadle. Gaddis

remembers Cheadle coming into Ned's around 1:00 a.m. the night of the incident.

Ned's closes at 2:00 a.m., and Gaddis testified that he always starts noticing

people around closing time. Gaddis testified that he remembers Cheadle's hair

style and his eyes. Between the timé of the incident and when he made his

identification, Gaddis testified that he saw Cheadle's picture on television and in

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the newspapers approximately five times. On September 17, 1981, Gaddis wa:

shown a photographic array which contained a picture of Cheadle different fron

the pictures shown on and in the media. Gaddis tentatively identified Cheadle

from this photographic array. At the time of trial, Gaddis made a positive

in-court identification of Cheadle as the person he saw in Ned's the night Nava

was killed.

The last witness who identified Cheadle from a photographic array was

Robert Mayes (Mayes). At trial, Mayes testified about and identified Cheadle as

the person who came to his apartment a few days before the Nava murder,

demanded money, and fired three shots at him with a chrome plated automatic

pistol. Mayes identified Cheadle from a photographic array after Cheadle's

picture appeared in the newspaper; however, he testified that his identification of

Cheadle was from his own recognition concerning the night of the shooting at his

apartment.

In determining whether there has been a violation of due process in the

conduct of a confrontation, we must look to the totality of the circumstances.

State v. Torres, 81 N.M. 521, 469 P.2d 166 (Ct.App.), cert. denied, 81 N.M. 506,

469 P.2d 151 (1970). After examining the record, we find that the trial court did

not err in allowing the out-of-court identification testimony. Manson, Correction

Commissioner v. Bruthwaite; State v. Gilliam, 83 N.M. 325, 491 P.2d 1080

(Ct.App.1971).

B. In-Court Identification

In-court identification which is independent of and not tainted by the extra-

judicial identification is admissible. State v. Torres. The in-court testimony

from the record before us supports the trial court's ruling that it was independent.

Other witnesses who made in-court identifications of Cheadle without being

shown photo arrays were: Jim Ewing, who was the dcorman at Ned's the night of

the incident, and remembers Cheadle coming in around midnight, showing his

and paying the cover Charge; and Hal Bereberg, a friend of Jim Ewing, who

approached by Cheadle outside Ned's after Ned's had closed.

After 2 review of the above identification testimony, we find that there

no error by the tria! court in denying the motion to suppress identificat

testimony, and the trial court correctly ruled that the in-court identificat

testimony was independent. State vy. Aguirre, 84 N.M 376, 503 P.2d 1154 (19;

State v. Beachum, 97 N.M. 632, 643 P.2d 246 (Ct.App.1981), cert. quashed,

N.M. 51, 644 P.2d 1040 (1982). Once a court finds that the evidence is admissib

it becomes a jury determination as to the accuracy of a witness’ identificati:

State v. Ortega, 79 N.M. 744, 449 P.2d 346 (Ct. App.1968).

IL Defense Witness Immunity.

At the close of presentation of the evidence, Cheadle moved to re-open

case, pursuant to NMSA 1978, Crim.P. Rule 40(j) (Repl.Pamp.1980), because

defense witness, John Archie (Archie), had been located. The trial court agree

to do so. Counsel was appointed for Archie because it appeared that h

testimony could incriminate him for harboring a fugitive. NMSA 1978, § 30-22-4,

Outside the presence of the jury, Archie took the stand and indicated that |

he was called to testify, he would only state his name and address. He would the

invoke his Fifth Amendment Privilege and refuse to answer questions. At thi

time, Cheadle made an offer of proof concerning what Archie would say if he tool

‘the stand, provided he was granted immunity. According to the offer of proof,

Archie would testify that Cheadle Spent the night of September 10, 1981, at

Archie's house, and that the following day, while watching television at Archie's

house, he first became aware that the police were looking for him. Therefore,

Cheadle requested thar the trial court on its own initiative grant Archie

immunity. The trial court denied the request.

4.

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10

At the time of Cheadle's trial, New Mexico had two provisions that referred

to immunity. NMSA 1978, Section 31-3A-1 (Cum.Supp.1981), applies to grand jury

proceedings and is recompiled as Section 31-6-15, NMSA 1978 (Cum.Supp.1983).

Section 31-6-15 states:

If a witness is granted immunity in return for

evidence, none of his testimony or any evidence obtained

as a fruit of his testimony shall be used against him in any

Criminal prosecution except that such person may be

prosecuted for any perjury committed in such testimony or

in producing such evidence, or for contempt for failing to

give an answer or produce evidence.

NMSA 1978, Crim.P. Rule 58 (Repi.Pamp.i980), sets forth the procedure for

obtaining immunity for a witness. Rule 58 (emphasis added), provides in pertinent

part:

(a) Issuance of Order. Lf a person has been or may be

called to testify or to produce a record, document, or other

object in an official proceeding conducted under the

authority of a court or grand jury, the district court for the

judicial district in which the official proceeding is or may

be held may, upon the written application of the

osecuting attorney, issue a written order requiring the

son to testify or to produce the recora, document. or

other object notwithstanding his privilege against seif-

incrimination... .

Since there is no constitutional provision or statute in this State allowing

application for the granting of immunity to defense witnesses, we must follow the

rule of criminal procedure set forth above. State v. Sanchez, 98 N.M. 428, 649

P.2d 496 (Ct.App.), cert. denied, 98 N.! . 473, 649 P.2d 1391 (1982); Campos v.

State, 91 N.M. 745, 580 P.2d 966 (1978). Rule 58 requires a written application by

the district attorney and a written order bv the trial court ordering the person to

testify. State v. Sanchez. This order must also contain a specific condition that

New Mexico will forego the prosecution of the person for criminal conduct about

which he is questioned and testifies. “Campos v. State. The law requires the

district attorney to undertake that obligation. See NMSA 1973, § 36-1-18(A)

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Cheadle made an oral request to the trial court for immunity, there was |

written application. However, even if Cheadle had complied with Rule 58, the

is little precedent for granting defense witnesses immunity. Like New Mexic

the federal government allows prosecution witnesses to be immunized but dot

not have a rule or statute concerning the granting of immunity to defen:

witnesses. See 18 U.S.C. § 6002, § 6003, § 6005 (1976).

A majority of federal case law has held that the federal district court has n

authority to grant immunity or to demand that the government seek immunity fc

a defense witness. United States v. Hunter, 672 F.2d 815 (10th Cir.1982); Unite

States v. Berrigan, 482 F.2d 171 (3¢d Cir.1973).

Cheadle relies on Government of Virgin Islands v. Smith, 615 F.2d 964 (3r

Cir.1980), which Suggests that under certain circumstances due process ma’

require that the government afford immunity for a defense witness. The opinior

sets forth four rules to follow:

l. The immunity must be properly sought in district

court.

2. The defense witness must be available to testify.

3. The testimony must be Clearly exculpatory and

essential to the defendant's case.

4%. There must be no strong government interest which

Countervails against a grant of immunity.

Id. at 972 - 973 (footnote omitted).

Even if this Court chose to adopt the decision in Goverment of Virgin Islands

v. Smith, Cheadle did not comply with the four requirements. The request for

immunity was not Properly sought. The testimony was not Clearly exculpatory and

essential. Cheadle's offer of proof showed that Archie would testify that Cheadle

slept at his residence the night of September 10, 1981. The murder of Nava was

committed in the early morning of September 10, 1981.

However, we decline tc iollow Government of Virgin Islands v. Smith and

a

ao Get & &®

———

hold that in New Mexico there is no authority to demand immunity for a witness

by the defense. See State v. Sanchez.

The trial court properly denied Cheadle's request for granting immunity to

Archie.

Cheadle claims that the jury instructions, NMSA 1978, UJI Crim. 39.30,

39.31, and 39.33 (Repi.Pamp.1982), were incomplete and confusing, thereby

Providing the jury with inadequate objective standards for weighing their decision

as to whether death or life imprisonment was appropriate.

At the instructions' conference, the trial court asked both the State and

Cheadle whether there were any objections to the proposed instructions to be

given to the jury in the sentencing phase. Cheadle made no objections. On

appeal, Cheadle, for the first time, objected to the giving of the three iurv

instructions. ;

We have repeatedly held that absent fundamental error that is jurisdictional,

objections to jury instructions cannot be raised for the first time on appeal when

the defendant did not objsct to the instructions at trial. State v. Garcia, 99 N.M.

771, 664 P.2d 969, cert. denied, __—s-«U.S. __, 103 S.Ct. 2464, __. _L-Ed2d

(1983); State v. Noble, 90 N.M. 360, 563 P.2d 1153 (1977). We still adhere to this

procedure in death penalty cases. State v. Garcia; see Vaught v. State, 410 So.2d

147 (Fla.1982).

We point out that in State v. Garcia, we reviewed two of the challenged

instructions and found no fault with them. We also point out that the United

States Supreme Court has recently held that there is no requirement that a state

adopt specific standards for the weighing Process in deciding whether to impose

the death penalty. in Zant v. Stephens, — U-S.__, 103 S.Ct. __, 77 L.Ed.2d

235, 258 (1983) (citations omitted) (emphasis added), the United States Supreme

-— 2 © ©. & £m: oe

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26

Court stated that:

([W Je note that in deciding this case we do not express any

opinion concerning the possible significance of a holding

that a particular aggravating circumstance is ‘invalid’

under a statutory scheme in which the judge or jury is

specifically instructed to weigh Statutory aggravating and

mitigating circumstances in exercising its discretion

whether to impose the death penalty. . . . [T]he

Constitution does not require a State to_ adopt specific

Standards for instructing the jury in its consideration of

aggravating and Mitizating Circumstances. ...

Therefore, although New Mexico has adopted the standard that a defendant

cannot be sentenced to death if the mitigating circumstances Outweigh the

aggravating circumstances, the Constitution does not require the adoption of a

specific standard for instructing the jury in its consideration of aggravating and

mitigating circumstances.

IV. Aggravating Circumstances.

Cheadle was charged with two aggravating circumstances. N.M.S.A. 1973,

§§ 31-20A-5(B) and (G) (Rep!l.Pamp.1981). Both aggravating circumstances were

submitted to the jury. The jury unanimously found beyond a reasonable doubt that

aggravating circumstance Section 31-20A-5(B) existed and that Cheadle should be

sentenced to death. The jury also unanimously found beyond a reasonable doubt

that aggravating circumstance Section 31-20A-G) existed and that Cheadle

should be sentenced to death for that crime also.

Cheadle does not dispute that there was sufficient evidence to sustain the

submission of Section 31-20A-5(B) to the jury. Section 31-20A-5(B) provides that:

(T]he 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.

Cheadle does assert that aggravating circumstance Section 31-20A-KG) was not

justified by the evidence; therefore, he should be granted a new sentencing

Procecding. Section 31-20A-5(G) provides thar:

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(T]he 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.

The jury was instructed on "murder of a witness" as follows:

Before you may find the aggravating circumstance of

murder of a witness to a crime or a person likely to

become a witness to a crime, you must find that the state

has proved to your satisfaction beyond a reasonable doubt

each of the following elements:

1. Gabe Nava was a witness to a crime or likely to become

a witness to a crime; and

2. Gabe Nava was murdered to prevent Gabe Nava from

reporting the crime.

Accord, NMSA 1978, UJI Crim. 39.20 (Repil.Pamp.1981).

Cheadle raises this objection for the first time on appeal. Objections to jury

instructions cannot be raised for the first time on appeal. State v. Garcia; Vaught

v. State. Therefore, since this objection was not raised at the trial court level,

Cheadle is precluded from raising it now. However, even if he were correct, when

two or more aggravating circumstances are found, the invalidation of one will not

invalidate the sentencing proceeding unless the invalidation is due to

constitutionally protected conduct. Zant v. Steohens.

V. Proportionality Review.

A deeply rooted principle is that a punishment should be proportionate to

the crime. Solem v. Helm, __ U.S. —_» 103 S.Ct. __, 77 L.Ed2d 637 (1983). If

fot, then the punishment is considered crue! and unusual in violation of the United

States and New Mexico Constitutions. U.S. Const. amend. VIII and XIV; N.M.

Const. art. Il, § 13. Gregg v. Georgia, 428 U.S. 153 (1976), held that the

imposition of the death penalty for a deliberate murder is neither the purposeless

imposition of severe punishment nor Qunishment grossly disproportionate for the

crime.

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Under New Mexico's Capital Felony Sentencing Act, Section 31-20A-4(C),

we are to review the sentence of death to determine if it is “excessive or

disproportionate to the penalty imposed in similiar cases, considering both thé

crime and the defendant." In State v. Garcia _—_—s— N.M.. at , 664 P.2d at 978

(1982), we set up guidelines for such review.

These guidelines are to apply prospectively to cases that were decided in

any court within New Mexico after the mandate in State v. Garcia. Because

Cheadle's case was already before this Court when State v. Garcia was decided,

we contacted the State and the defense requesting their submission of cases for

comparisons. Two cases have been brought to our attention. State v.

Hutchinson, 99 N.M. 616, 661 P.2d 1315 (1983), and State v. Garrison, No. 14,313.

We will also consider the recently decided cases of State v. Simonson, 22 SBB

1125 (1983), and State v. Gilbert, 22 SBB 1173 (1983).

In State _v. Hutchinson, the defendant was charged with aggravating

circumstances Section 31-20A-5(B) and (G). The jury found both aggravating

circumstances existed, but did not impose the death sentence. Hutchinson was

convicted of first degree murder for which he received life imprisonment, of first

degree kidnapping for which he received eighteen years imprisonment, and of

armed robbery for which he received nine years imprisonment.

Cheadle urges us to also compare State v. Garrison, No. 14,313, which was

disposed of by unpublished decision. Garrison was charged with one aggravating

circumstance. § 31-20A-5(G). The jury did not find that this aggravating

circumstance existed. Therefore, pursuant to our standard in State v. Garcia,

State v. Garrison is not to be compared and is not applicable to this analysis.

In State v. Simonson, aggravating circumstance Section 31-20A-G) was

given for two separate murders. The jury found that each aggravating

circumstance cxisted but stier weighing the mitigating and aggravating

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Circumstances and considering the defendant and the crime, the jury did not

impose the death penalty. Simonson was convicted of two counts of first degree

murder for which he received two life sentences, and he was also convicted of

attempted murder for which he received nine years.

In State v. Gilbert, aggravating circumstance Section 31-20A-5(B) was given

for two separate murders. Section 31-20A-5(G) was also given. The jury found

that all three aggravating circumstances existed and unanimously voted to impose

the death penalty. Gilbert's death penalty was recently upheid. State v. Gilbert.

Proportionality review in New Mexico is first and foremost directed to the

particular circumstances of a crime and specific character of the defendant.

State v. Garcia. It is our duty to review the ddtermination by the jury; we will

not retry the case for what may be a better result. Id.

We have compared the sentences imposed in Hutchinson, Simonson and

Gilbert to see if Cheadle's sentence is excessive or disproportionate. The facts,

circumstances and crimes in each case are different, as well as the defendants

and their histories. After a thorough review of the record and transcripts in

Cheadle's trial, we find that Cheadle's sentence of death for the deliberate

murder of Nava is neither excessive nor disproportionate.

VL Death Penalty.

Cheadle 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. Il, § 13.!

In State v. Garcia, we held that pursuant to Gregg v. Georgia, $28 U.S. 153

(1976), the punishment of death does not violate the United States Constitution.

We also held in State v. Garcia, that pyrsuant to State v. Rondeau, 89 N.M. 408,

553 P.2d 688 (1976), the death penalty is not crue! and unusual punishment per se

within the prohibition of the Eighth and Fourteenth Amendment of the United

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States Constitution or Article Il, Section 13 of New Mexico's Constitution. New

Mexico's current capital punishment statutes, Sections 31-20A-1 through 31-20A-

6, are modeled after Florida's, Georgia's and Texas'2 death penalty statutes, which

havewithstood United States Supreme Court scrutiny.3 Therefore, we again find

that New Mexico's Capital Felony Sentencing Act is constitutional.

VIL 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 presented in this

Case and that the death sentence was validly imposed. Therefore, the judgment of

the jury that Cheadle be punished by death is affirmed. This case is remanded to

the trial court to set the date of execution, not less than sixty days nor more than

ninety days from the issuance of the mandate on our judgment.

IT IS SO ORDERED.

- =

WILLIAM RIORDAN, Justice

We Lif 4

Z ZL ar

H. VERN PAYNE, Chief Justice

)

LIAM R. ustice

a

DAN SOSA, JR., Senior Justice, Dissenting in Part.

HARRY E. STOWERS, JR., Not Participating.

o oO VI oOo FOF F&F & HD HY

10

FOOTNOTES

1. 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.

2. Fla. Stat. § 921.141 (1981); Ga. Code Ann. § 27-2534.1 and § 27-

2537 (Cum.Supp. 1982); Texas Stat. Ann. art. 37.071 (Vernon 1981).

3. Proffitt v. Florida, 428 U.S, 242 (1976); Gregg v. Georgia, 428 U.S.

153 (1976); Jurek v. Texas, 428 U.S. 262 (1976).

-15-

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SPECIAL CONCURRANCE

SOSA, Senior Justice, specially concurring.

I concur with the affirmance of the convictions in this case for the reasons

stated in the majority opinion. I respectfully dissent on the issue of the

imposition of the death penalty. I would hold that the Capital Felony Sentencing

Act, NMSA 1978, Sections 31-20A-1 through 31-20A-6 (Repl.Pamp.1981) violates

the Fourteenth and Eighth Amendments to the U.S. Constitution and Article Il,

Sections 13 and 18 of the N.M. Constitution. Initially, the relevant Uniform Jury

Instructions do not provide clear and objective suanterde to guide the jury's

sentencing decision. While the defendant and the crime may only be considered in

mitigation, and not in aggravation, the jury is not instructed to this effect. This

belies the fact that no effective guidance is provided the jury in its determination

whether aggravating circumstances outweigh mitigating circumstances. In

addition, the New Mexico death penalty provisions do not provide for meaningful

proportionality review as is evidenced by the cursory discussion in the majority

opinion Comparing the circumstances, crimes, defendant's history and sentences in

the instant case with those of other cases. Finally, both the Uniform Jury

Instructions and the sentencing statute allow for unequal treatment: of equally

culpable defendants. For these reasons, which I discuss in greater detail in my

specially concurring opinion in State v. Garcia, N.M. , 664 P.2d 969,

cert. denied, U.S. , 103 S.Ct. 2464 (1983), | would remand this cause

for the imposition of a sentence of life imprisonment.

. . -

.

DAN SOSA, JR. Senior Justice

EXHIBIT B: PETITIONER'S MOTION FOR REHEARING IN THE

NEW MEXICO SUPREME COURT

IN THE SUPREME COURT OF THE STATE © 7 NEW MEXICO

STATE OF NEW MEXICO,

Plaintiff-Appellee

v. NO. 14,177

DAVID LEON CHEADLE, ,

Defendant-Appellant

CRIMINAL APPEAL FROM

THE DISTRICT COURT OF BERNALILLO COUNTY

HONORABLE HARRY E. STOWERS, JR., DISTRICT JUDGE

DEFENDANT-APPELLANT'S MOTION FOR REHEARING

JANET CLOW

Chief Public Defender

J. THOMAS SULLIVAN

Appellate Defender

Public Defender Department

Appellate Division

. 215 W. San Francisco Street

Santa Fe, New Mexico 87501

(505) 827-3905

ATTORNEYS FOR DEFENDANT-APPELLANT

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

STATE OF NEW MEXICO,

Plaintiff-Appellee

Vv. NO. 14,177

DAVID LEON CHEADLE,

Defendant-Appellant

MOTION FOR REHEARING

TO THE HONORABLE SUPREME COURT:

This motion is brought by DAVID LEON CHEADLE, Defendant, by

and through his attorney of record on appeal, J. THOMAS SULLIVAN,

Appellate Defender, and counsel of record for Defendant. Defendant

moves this Honorable Court grant rehearing based on the following:

I.

The Court misapprehended th . 2

claim of error on appeal, rein... .- sack of EVIGeENLidiy juorcese

cation for the jury's finding that Defendant committed murder of

a witness, in holding that this issue was improperly preserved.

The Court held, at page 11 of the slip opinion, that:

"Cheadle raises this objection for the first time on appeal.

Objections to jury instructions cannot be raised for the first

time on appeal. State v. Garcia; Vaught v. State. Therefore,

since this objection was not raised at the trial court level,

Cheadle is precluded from raising it now." (emphasis in origina

The point of error, as drafted and argued, is notvan objection to

the instruction given. Rather, it related to evidentiary sufficiency

and Defendant contends that this matter could properly be raised for

the first time on appeal. See State v. Doe, 583 P.24 464 (1978).

bie =

'efe, lant .ccond challenges the Court's furthci Jsisposit tis

of this point of error on appeal:

"...-However, even if he were correct, when two or more

aggravating circumstances are found, the invalidation of

One will not invalidate the sentencing proceeding unless

the invalidation is due to constitutionally protected

conduct. Zant v. Stephens."

Slip opinion, at 11. Defendant contends that the Court misappre-

hends the legal basis for the holding in Zant v. Stephens, __U.S.

—__.- 103 S.Ct. 2733 (1983). Defendant did not argue that the aggra-

vating circumstance, as defined by statute, is constitutionally

invalid; rather, he Simply argued that the evidence was insufficien

to demonstrate that the mctivation for the murder was to kill the

deceased because he was a witness. Thus, Defendant argues that the

Court should reconsider its Original assessment of the point of err«

and simply review the evidence for sufficiency. Moreover, Defendant

contends that the Court's view of Zant is incorrect when applied to

the Nev Mexico statute. See 103 S.Ct. at 2741, especially fn..12.

CONCLUSION

Upon consideration of this motion, Defendant moves the Court

grant rehearing in this cause and re-address point four as raised in

his brief in chief to review the sufficiency of the evidence offered

to prove that the killing of a witness was the motivation for the

murder in this case.

Respectfully submitted,

JANET CLOW

Chief Public Defender

” aaa

WAN MAS Silvi

J. THOMAS SULLIVAN W

Appellete Defender

Publié Defender Department

Arpellei.. [i ‘sion

20+ Te fee OB. nedee-. “treet

Bots De, Re. Bossy #7501

(= 35,8; 2%

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the fore

going Motion for Rehearing was served upon the Attorney General

by hand delivery to the AG's box in the Supreme Court on this

30th day of November, 1983.

PUBLIC DEFENDER DEPARTMENT

it Sa

=

EXHIBIT C:

ORDER OF THE NEW MEXICO SUPREME COURT DENYING REHEARING.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ve TRUE COPY

Cer: of tre Supte.n.e Court

wf the Slete of New Mexico

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Wednesday, December 2], 1983

NO. 14,177

STATE OF NEW MEXICO,

Plaintiff-Appellee,

vs.

DAVID LEON CHEADLE,

Defendant-Appellant.

This matter coming on for consideration by the Court upon Motion of

Appellant for a Rehearing, and the Court having considered said motion and being

sufficiently advised;

NOW, THEREFORE, IT IS ORDERED that Motion of Appellant for rehearing

is hereby denied.

RECEIVED

FEB 2 3.1984

OrrivE ur inc viueRK

SUPREM® COURT. U.S.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The undersigned attorney, on behalf of the petitioner in this case,

hereby moves that Petitioner be allowed to proceed in forma pauperis

before this Court. The reasons are set forth in the attached affidavit.

Respectfully submitted,

figs GL Nfor_

( Appellate Defender

A

New Mexico Publie Defender Department

Appellate Division

215 West San Francisco Street

Santa Fe, New Mexico 87501

(505) 827-3905

Counsel for Petitioner

tad

RECEIVED

83-6141 FEB 23.1984

IN THE

UNITED STATES SUPREME COURT eee ae

OCTOBER TERM, 1983 - OH =,

AFFIDAVIT SUPPORTING MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

STATE OF NEW MEXICO )

)

COUNTY OF SANTA FE )

I, DAVID LEON CHEADLE, being first duly sworn, depose and say

that I am the Petitioner in CHEADLE V. STATE OF NEW MEXICO; that in

support of my motion to proceed on appeal without being required to

prepay fees, costs or give security therefor, I state that because of

my poverty I am unable to-pay the costs of this proceeding or to give

security therefor and I believe that I am entitled to legal redress.

I further swear to the following:

1). I am presently incarcerated in the New Mexico State Peni-

tentiary under sentence of death and have been incarcerated at all

times since my arrest for the charge upon which I was convicted;

2). I have no current employment, source of income or savings

with which to pay the costs of this appeal;

3). At all times during the course of the trial and appeal

in the New Mexico courts I have been declared indigent and represente:

by the New Mexico Public Defender Department or counsel paid by the

New Mexico Public Defender Department on contract basis. My appeal

is currently being prosecuted by the Appellate Division of the New

Mexico Public Defender Department;

4). I have no personal or real property which might be con-

verted to pay the costs of appeal in this case;

5). I have no resources to support any person other than my-

self and do not provide support for anyone else.

I understand that a false statement in this affidavit will

subject me to penalty for perjury.

Lyle Madde

s RIBED AND SWORN TO before me, the undersigned authority,

this , UR

day of February, 1984

(CAT Ze

NOTARY PUBLIC,

BY COBBSSON EXPRES MOVERBER 29, 1964 STATE OF NEW MEXICO