Petition for Writ of Certiorari — Finnell v. New Mexico

F Office Supreme Court, U.S.

34-327] Fitep

No. AUG 24 1984

IN THE

Hupreme Court of the Yuited States

OCTOBER TERM, A.D. 1984

WALTER SCOTT FINNELL,

Petitioner

VS.

STATE OF NEW MEXICO

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW MEXICO

Sarah Michael Singleton

Post Office Box 2423

Santa Fe, New Mexico 87501

(505) 988-4469

Mark Donatelli

136 Grant Street

Santa Fe, New Mexico 87501

(505) 988-8004

Palmer Singleton

600 Healy Building

57 Forsyth, NW

Atlanta, Georgia 30303

(404) 688-1202

Counsel for Petitioner

DiCesare and Associates Printing @ Washington, D.C. © (202) 331-8101 x \

i

QUESTION PRESENTED FOR REVIEW

Whether the New Mexico Supreme Court's ruling that the

police did not have to readvise the defendant of his rights

immediately prior to interrogration is erroneous under the

standard set by this Court in Miranda v. Arizona, 384 U.S.

436 (1966).

PARTIES

The parties to the proceedings in the New Mexico

Supreme Court are identified in the caption of this petition.

TABLE OF CONTENTS

Questions Presented For Review ..................000. i

CCL LACGLGCEWESE 6b SOR VAS ONE O SN CE EROS ee ee hORSS i

Report of Decision ............ cee cece cece ence eens 1

EMEC e Cte Ghee Nas kb konceseciacesascececes 1

nae Vue he gis wee ss ceeaneess 1

Ee i ac adeckencansecesecaceeees 1

Reasons for Allowance of the Writ ................... 2

|. Mr. Finnell was not Advised of his Miranda

Rights at the Time of Interrogation. The

New Mexico Supreme Court Misapplied for the

Law Pertaining to the Waiver of Fifth

EE cea chWe £o5 beer ede ecccecccccases 2

Eee eee h i ck Rek SHARES ASA cK eS RsMeS 6

CGN ee ACen pea Sch ahs un eseebsss cee eseccaes A-1

TABLE OF AUTHORITIES

United States Supreme Court Cases

Berkemer v. McCarty, 52 U.S.L.W. 5023

8 Fe re or POPE TT EER Te TT Te 5

Michigan v. Mosley, 423 U.S. 96 (1975) ............ 3, 4

Miranda v. Arizona, 384 U.S.

EE Fact cdudesiwatachincecanvnanse 1,2,3,4,5,6

New York v. Quarles, U.S.,

ee ee, ee Es. Si wack hace ee dag eexedcedkcanes 5

Federal Cases

Miller v. United States, 396 F.2d 492 (8th Cir. 1968),

cert. denied, S363 U.S. 1031 (TEER) .. 2. c ccc cncces 3

United States v. Delay, 500 F.2d 1360

EI: SE a CELE Aaiba Oh 4hDS 040045004000 500004008 3

United States v. Hernandez, 574 F.2d 1362

rn ai. Wn Clase cleLeu DARGA we aRee be éc4ne cane d 3

Cases from Other Jurisdictions

Commonwealth v. Dixon, 380 A.2d 765, 767

5 HERRERA PR cs R vast SRL a ge ae 4

Consitutional Provisions

Ul ge. a B Seer eee eer oe ge 1

IN THE

Supreme Court of the United States

OCTOBER TERM, A.D. 1984

WALTER SCOTT FINNELL,

Petitioner

VS.

STATE OF NEW MEXICO

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW MEXICO

REPORT OF DECISION

The petitioner, Walter Scott Finnell, respectfully

requests that a writ of certiorari issue to review the decision

of the New Mexico Supreme Court in the case of State v.

Finnell, 23 N.M. St. B. Bull. 645 (filed 6/6/84) which affirmed

his convictions of capital murder, armed robbery,

attempted murder, and car theft. (Appendix A)

JURISDICTION

The decision sought to be reviewed was filed on June 6,

1984. A motion for rehearing was timely filed on June 18,

1984. The order denying that motion was entered on June

27, 1984.

This Court’s jurisdiction is invoked under 28 U.S.C.

§1257(3).

CONSTITUTIONAL PROVISION

U.S. CONST. AMEND. V

[Njor shall any person . . . be compelled in any criminal

case to be a witness against himself...

STATEMENT OF THE CASE

The facts material to the question presented are

undisputed. Subsequent to a robbery and a shooting ata

Dairy Queen in New Mexico on March 8, 1981, the

defendant and a co-defendant drove to Arizona. There the

Arizona Highway Patrol engaged Scott Finnell and Shane

Lasiter in a high speed chase over a gravel road. Another

law enforcement vehicle approached Scott Finnell’s

vehicle from the front, and there was a head-on collision.

(Tr. 400-401, 411-12, 418-19) Scott Finnell and Shane

Lasiter began running across the desert, and two police

officers chased them for about two miles. (Tr. 403, 413)

When the officers were within twenty-five to fifty yards of

Scott and Shane, the suspects turned and gave up

peacefully. (Tr. 414) The officers and the suspects were

probably out of breath. (Tr. 416) Officer Gonzales advised

the suspects of their Miranda rights (Tr. 406, 414) Neither

suspect gave a statement.

- Another officer, Jim Self drove his pick-up to the spot of

the arrest and picked up the two suspects. When they

arrived at the jail after a thirty minute ride in the back ofthe

truck, Mr. Self asked Scott Finnell if he had been advised of

his rights and if he understood them. Officer Self, who had

not been present when Officer Gonzales read the warnings,

did not repeat the Miranda warnings. (Tr. 427, 437) Thena

statement was taken. (Tr. 427, 435)

At trial, the defendant objected to admission of his

statement into evidence, but the trial court received it. On

appeal, the New Mexico Supreme Court held that the trial

court had not abused its discretion by admitting the

statement.

REASONS FOR ALLOWANCE OF THE WRIT

1. MR. FINNELL WAS NOT ADVISED OF HIS MIRANDA

RIGHTS AT THE TIME OF INTERROGATION. THE

NEW MEXICO SUPREME COURT MISAPPLIED THE

LAW PERTAINING TO WAIVER OF FIFTH

AMENDMENT RIGHTS.

el

in effect, this case presents the other side of the Mos/ey

coin. Michigan v. Mosley, 423 U.S. 96 (1975). Mosley

presented the issue of whether statements given

subsequent to an invocation of rights and subsequent to a

regiving of the warnings may be admitted. This case

involves the failure to regive Miranda warnings and asks

when it is necessary to readvise a suspect of his rights.

In Miranda v. Arizona, 384 U.S. 436 (1966), this Court stated

that, “a warning at the time of the interrogation is indis-

pensable to overcome its pressures and to insure that the

individual knows he is free to exercise the privilege [to

remain silent] at that point in time.” 384 U.S. at 469

(emphasis supplied). This requirement reflects the Court's

concern that the accused not be intimidated into an

involuntary waiver of his fifth amendment rights.

in the present case, the police did not advise Mr. Finnell

of his Miranda rights at the time of the interrogation.

Relying on a Miranda warning given previously, they

interrogated Mr. Finnell after merely asking him whether he

understood his rights. (Tr 427, 437) Under the facts of this

case, the trial court erred in overruling the proper defense

objection, on the basis of an inadequate Miranda warning,

to admission of Mr. Finnell’s statements.

When the issue is whether a defendant should have been

readvised of his Miranda rights, the inquiry is always, “Did

the defendant, with full knowledge of his icgal rights,

knowingly and intentionally relinquish them?” United

States v. Delay, 500 F.2d 1360 (8th Cir. 1974); Miller v.

United States, 396 F.2d 492 (8th Cir. 1968), cert. denied, 393

U.S. 1031 (1969). In the present case the facts show silence

after a specific advice of rights. Silence does not amount to

a knowing and voluntary waiver. See United States v.

Hernandez, 574 F.2d 1362 (5th Cir. 1978). In effect,

petitioner's original silence was an invocation of his rights.

Contrary to the procedure followed in Michigan v. Mosley,

423 U.S. 96 (1975), the police did not repeat the Miranda

warnings; they relied on an oblique question: “Do you

know your rights?” The subsequent questioning did not

scrupulously honor the origina! exercise of the right to

remain silent.

The question posed by this case is when must a suspect

be regiven his Miranda rights. The answer should come

from considering the “totality of circumstances in each

case... .” Commonwealth v. Dixon, 380 A.2d 765, 767 (Pa.

1977). This Court should adopt the analysis approved in

Dixon:

Pertinent to such inquiry are the length of time

between the warnings and the chalienged

interrogation, whether the interrogation as

conducted at the same place where the warnings

were given, whether the officer who gave the

warnings also conducted the questioning, and

whether the statements obtained are materially

different from other statements that may have

been made at the time of the warnings.

380 A.2d at 767. The Dixon court held that a three-hour

delay given by a different officer in a different room from

the one in which the statements contradicting an earlier

denial of involvement in the crime were given required that

the appellant be rewarned of his rights.

Application of these factors to the present case indicates

that the statement should have been suppressed. Every

factor, except the first, militates in favor of suppression.

Even the first factor is not strongly in State’s favor. While it

was thirty minutes between the warnings and the booking,

the warnings were given under and followed by adverse

circumstances. The warnings came after a harrowing car

chase and a cross-desert run of two miles. The warnings

were followed by a thirty minute ride in the back of a pick-

up.

Scott Finnell is a young man with no prior criminal

history that involved arrest. (Tr. 1166) He was not a street-

wise youth for whom it would suffice for Mr. Self to say, “Do

you know your rights?” Mr. Finnell was not advised of his

rights at the time of the interrogation; at the time he was

advised of his rights, there was no interrogation. This Court

should not permit an untimely, superfiuous Miranda

warning to substitute for the timely warning designed to

insure that a suspect knowingly and intentionally waived

his rights. The totality of the circumstances indicates that

Mr. Self was duty bound to advise Scott Finnell fully of his

rights. His failure to do so renders it error to have admitted

the statement made after an inadequate waiver of rights,

and all the convictions should therefore be reversed.

Moreover, recent opinions from this Court have blurred

the contours of the Miranda ruling. New York v. Quarles,

U.S. 104 S.Ct. 2626 (1984); Berkemer v.

McCarty, 52 U.S.L.W. 5023 (U.S. July 2, 1984). The present

case also involves interpreting the Miranda requirements.

This Court should therefore grant certiorari to clarify the

scope and application of this important rule.

CONCLUSION

For the reasons stated above, this Court should issue its

writ of certiorari to the New Mexico Supreme Court and

remand this cause for a new trial excluding the statements

given after an inadequate Miranda warning.

Respectfully submitted,

SARAH MICHAEL SINGLETON

Post Office Box 2423

Santa Fe, New Mexico 87501

(505) 988-4469

MARK DONATELLI

136 Grant Avenue

Santa Fe, New Mexico 87501

(505) 988-8004

PALMER SINGLETON

600 Healy Building

57 Forsyth, NW

Atlanta, Georgia 30303

(404) 688-1202

Counsel for Petitioner

August 24, 1984

APPENDIX

A-1

From The New Mexico Supreme Court

STATE OF NEW MEXICO,

Plaintiff-Appellee,

versus

WALTER SCOTT FINNELL,

Defendant-Appellant.

No. 13991 (filed June 6, 1984)

APPEAL FROM THE DISTRICT COURT OF

GRANT COUNTY

NORMAN HODGES,

District Judge

PAUL BARDACKE, Attorney General

ANTHONY TUPLER, Assistant Attorney General

Santa Fe, New Mexico

Attorneys for Appellee

SARAH M. SINGLETON

Santa Fe, New Mexico

PALMER SINGLETON

CENTER FOR CRIMINAL JUSTICE

GEORGETOWN LAW CENTER

Washington, D.C.

Attorneys for Appellant

Supreme Court Opinions, Justice Stowers

OPINION

HARRY E STOWERS, JR., Justice.

Defendant Walter Scott Finnell was tried by jury and con-

victed in the District Court of Grant County of first degree

murder of Richard Bejarano, attempted murder of Karen

Bejarano with firearm enhancement, armed robbery with

firearm enhancement, and motor vehicle theft with firearm

enhancement. For the murder of Richard Bejarano, the

jury, pursuant to NMSA 1978, Section 31-20A-5(G)

(Repi.Pamp.1981), found the aggravating circumstance of

killing a witness. The jury unanimously agreed that

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defendant be sentenced to death for the first degree

murder. Defendant was also sentericed to ten years on the

count of attempted murder, ten years on the armed robbery,

and two and a half years on the car theft. These sentences

were to be served concurrently with each other, but con-

secutively to the sentence under the murder verdict.

We affairm defendant's conviction on all charges.

However, because of errors in the sentencing phase of the

trial, we reverse and remand the case for a new sentencing

proceeding only as to the conviction for first degree

murder, pursuant to NMSA 1978, Section 31-20A-4

(Rep!|.Pamp.1981).

Sentencing Jury Selection

Defendant contends that it was error to exclude for cause

those jurors who, following the guilt phase of the trial,

stated that, although not unequivocally opposed to the

death penalty, they were convinced that defendant should

not be sentenced to death, Defendant asserts that this

violated his constitutional right to a fair and impartial jury.

Defendant argues that the death sentence is invalid

because the exclusion resulted in a sentencing jury

uncommonly willing to impose the death penaity, contrary

to the Sixth and Fourteenth Amendment right to an

impartial jury.

Rather than conducting voir dire on the death penalty at

the beginning of the trial as is properly done, examination

of the jurors regarding the death penalty was postponed

until after trial on the merits. Defendant had filed a pre-trial

motion to limit initial voir dire on the jury. Prior to trial,

defendant and the prosecution entered into a stipulation

agreeing to no death penalty voir dire or mention of the

death penalty during the guilt phase of the trial. The trial

court accepted this stipulation. Twelve jurors and six

alternates were then selected.

On voir dire during the penalty phase, the trial court first

asked the jurors if they were opposed to the death penalty.

Second it asked if the juror, regardless of the facts and

A-3

circumstances which have been presented by the evidence

during the trial and which may be presented during the

sentencing proceeding, would autom_tically refuse to vote

for the sentence of death. See NMSA 1978, UJI Crim. 1.10

(Rep!.Pamp.1982). Those jurors who expressed opposition

were examined further to determine if any of them shouid

be stricken for cause.

Of the eighteen jurors and alternates questioned, eight

initially answered yes to both questions. Defendant then

requested the trial court to dismiss the penalty portion of

the case because eight of the original trial jurors were not

death qualified, leaving only ten jurors, including the

alternates. Defendant would not stipulate to a ten-person

jury or the calling of new jurors. The prosecutor requested

leave to conduct further voir dire. The trial court limited the

voir dire to those who indicated they had opposition to the

death penalty. The trial court also agreed to defendant's

request to voir dire the death qualified jurors to determine if

any of them would automatically impose the death penalty

in every case.

In subsequent vior dire, one juror was stricken for cause |

because of her unequivocal opposition to the death penalty

on religious grounds. Three jurors were excused for cause

after indicating that although there were circumstances in

which they would impose the death penalty, based on the

evidence at trial, they could not sentence defendant to

death, regardiess of the evidence presented in the

sentencing phase. Two jurors were excused by the court

for cause at defendant’s request because they indicated

that their minds were already made up on the case. The

sentencing jury consisted of six jurors who had originally

deliberated defendant’s guilt and the six alternates.

The Capital Felony Sentencing Act, NMSA _ 1978,

Sections 31-20A-1 to -6 (Repl. Pamp. 1981), provides for

sentencing in capital cases. Section 31-20A-1(B) provides

in pertinent part:

A-4

In a jury trial, the sentencing proceeding shall be

conducted as soon as practicable by the original

trial judge before the original trial jury.

This did ngt occur in the present case. The sentencing

proceeding was conducted before six of the original trial

jurors and the six alternates. The stipulation which was

entered into violated the procedures set forth by the

Legislature for the capital felony sentencing, and should

never have been permitted. Tne result was to create a

confusing situation. In cases decided subsequent to

defendant's trial this Court has pointed out the potential

problems with utilizing this method of jury selection. See

State V. Simonson, 100 N.M. 297, 669 P.2d 1092 (1983);

State V. Hutchinson, 99 N.M. 616, 661 P.2d 1315 (1983).

In this case, defendant was not sentenced by the original

trial jury which found him guilty as required by Section 31-

20A-1(B). Therefore, we are remanding this case for a new

sentencing proceeding on the first degree murder

conviction, pursuant to Section 31-20A-4(E), which

provides in relevant part:

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.

Witness Killing

Defendent filed a motion to preclude the imposition of

the death penalty arguing that Mr. Bejarano was not a

witness as comtemplated by NMSA 1978, Section 31-20A-

5(G) (Repl.Pamp.1981). A_ stipulation of facts was

presented to the trial court for the motion hearing. After the

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hearing, the trial court ruled that if was going to deny the

motion to preclude the imposition of the death penalty.

Defendant argues that Mr. Bejarano was not a witness

within the meaning of Section 31-20A-5(G). Defendant

contends that the trial court extended Section 31-20A-5(G)

in a manner that would make the death penalty applicable

whenever an intentional killing occurs in the course of any

felony or misdemeanor. Defendant also asserts that the

evidence was insufficient to support the jury’s finding that

Mr. Bajarano was a witness to a crime, resulting ina charge

of the aggravating circumstance.

The court sentencing procedure is provided in NMSA

1978, Section 31-20A-3 (Repi.Pamp.1981), which states in

relevant part:

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... this act, and

unamimously specifies the sentence of death...

the court shall sentence the defendant to death.

This provision clearly states that the jury must find whether

the aggravating circumstance exists. See also NMSA 1978,

UJI Crim. 39.10, 39.13, 39.20, 39.31, 39.32, and 39.33

(Rep!.Pamp.1982). Because we are remanding this case for

a new sentencing hearing, it will be up to the jury to first

determine whether the aggravating circumstance exists.

Errors by the Prosecution

and the Trial Court

Defendant first argues that the prosecution's argument

during the sentencing phase of the trial was inflammatory

and preventing consideration of the proper statutory

mitigating and aggravating circumstances. Second,

defendant argues that the ambiguity of the jury instructions

concerning the weighting of aggravating and mitigating

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circumstances undermines the reliability of the jury’s

imposition of the death sentence. Third, defendant argues

that the trial court’s refusal to strike a juror who said he

thought the defendant should testify and then permitting

that juror to sit on the sentencing phase jury undermines

the reliability of the death penalty. Because of our remand

for a new sentencing hearing, it is unnecessary for us to

address the first and third points raised by the defendant.

The Capital Felony Sentencing Act requires that

aggravating and mitigating circumstances be weighed

against each other to determine whether a life or death

sentence is appropriate. NMSA 1978, Section 31-20A-2/B)

(Rep!.Pamp.1981). This Court has adopted uniform jury

instructions which explain the death penalty sentencing

proceeding. See NMSA 1978. UJI Crim. 39.10 to -43

(Repl.Pamp.1982). These instructions explain to the jury

the statutory requirements for imposition, set forth the

applicable matters for jury consideration, limit the jury’s

consideration to those specific matters, and guide the

jury’s discretion.

Relying on State V. Wood, 648 P.2d 71, 77-85 (Utah), cert.

denied, U.S., 103 S.Ct. 341, 74 L.Ed.2d 383 (1982),

defendant argues that principles of statutory construction

require that the death penalty be limited to instances where

the jury is persuaded beyond a reasonable doubt that

aggravating circumstances outweigh mitigating factors.

However, Wood is inapplicable to the present case because

it dealt with a statute that provided no burden of proof,

persuasion, or even required that a comparison be made

between the aggravating and mitigating factors. Id. at 79,

f.n. 4.

The United States Supreme Court has never stated thata

beyond a reasonable doubt standard is required when

determining whether a death penalty should be imposed.

There is no requirement in the Capital Felony Sentencing

Act or in the jury instructions which requires that the

aggravating circumstances outweight the mitigating

circumstances beyond a reasonable doubt. If the

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Legislature had intended for this burden to be beyond a

reasonable doubt in death penalty cases, it would have

stated so in the Capital Felony Sentencing Act. The jury

instructions adopted by this Court give the jury the

guidance they need in order to determine whether the

death sentence is appropriate.

Aggravating V. Mitigating

Circumstances

Defendant contends that because the evidence shows

that he was 2 young man with no significant history of prior

criminal activity and a significant history of mental disorder

and emotional! problems, acting under duress, that the

mitigating circumstances outweigh the aggravating

circumstances. Therefore, he argues that this Court is

required to vacate the death sentence. However, in light of

our remand of this case for a new sentencing hearing, we

find it unnecessary to address this issue at this time.

Systematic Review and

Proportionality

Defendant argues that effective appellate review of the

excessiveness of a death sentence is constitutionally

required, and that the lack of a systemic review procedure

prohibits imposition of death in this case. Alternatively,

defendant contends that the sentence of death in this case

is disproportionate to the sentences given others convicted

of similar crimes who have fewer mitigating circumstances.

In view of our remand for a new sentencing proceedings,

we find it unnecessary to address this issue. We note,

however, that in State V. Garcia, 99 N.M. 771, 664 P.2d 969,

cert. denied, U.S., 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983),

this Court set forth the guidelines for proportionality

review. We continue to adhere to that procedure.

Constitutionality of the

Death Penalty

Defendant asserts that the death penalty is cruel and

unusual punishment, applied arbitrarily and capriciously in

violation of the state and federal Constitutions. We

A-8

discussed this challenge to the death penalty in State V.

Garcia, 99 N.M. 771, 664 P.2d 969 cert. denied, U.S., 103 S.

Ct. 2664, 77 L.Ed.2d 1341 (1983). We continue to hold that -

the dealth penalty, in and of itself, does not violate federal

or state constitutional mandates against cruel and unusal

punishment.

Duress Instruction

Defendant requested an instruction which would have

informed the jury that if he was forced to kill Richard

Bejarano under threats against his life, he was not guilty.

The instruction was denied. As to both murder and

attempted murder, the trial court instructed that acting

under threat was no defense. Defendant failed to object to

those instructions. On appeal, defendant urges that the

refusal to give a duress instruction was error.

Two forms of NMSA 1978, UJI Crim. 41.21

(Rep!.Pamp.1982) were given by the trial court:

Evidence has been presented that the defendent

killed RICHARD NATHAN BEJARANO under a

threat of death or great bodily harm from Charles

Ralph Cobb. The fact that the defendant may have

acted under a threat from another is no defense to

an intentional killing of an innocent person.

[Instruction No. 4.] Evidence has been presented

that the defendant intended to kill KAREN

BEJARANO under a threat of death or great

bodily harm from Charles Ralph Cobb. The fact

that the defendant may have acted under a threat

from another is no defense to an attempted killing

of an innocent person. [Instruction No. 6]

The trial court submitted the correct instructions to the

jury. The duress defense has traditionally been refused for

homicide. See Jackson V. State, 558 S.W.2d 816

(Mo.App. 1977); State V. Toscano, 74 N.J. 421,378A.2d 755

(1977). We agree with the court’s reasoning in Jackson,

which reiterated that the common law has steadfastly

A-9

refused to recognize any complusion, even the threat of

death, as sufficient to excuse taking the life of another. The

Jackson court noted that:

Legal recognition of duress as a defense to crimes

other than homicide necessarily assumes a

working hypothesis that a harm or crime of

greater magnitude is avoided when the subjected

person succumbs to the duress. This hypothesis

disappears when duress is sought to be invoked

as a defense in a homicide case.

558 S.W.2d at 820. This analysis in Jackson was cited with

approval in Wright V. State, 402 So.2d 493 (Fla. App. 1981).

The Wright court stated:

The rationale is sound. The paucity of cases

which have addressed the issue is, hopefully, a

reflection that the rule that duress will never

justify the killing of an innocent third party

accords with the mores of our society. We

unhesitatingly adopt the rule that duress is not a

defense to an intentional homicide.

ID. at 498 (footnote omitted.) Other states have also

rejected the duress defense in a homicide context either on

the basis of common law or statute. See State V. Encinas,

132 Ariz. 493, 647 P.2d 624 (1982) (duress barred by statute

as defense to either felony murder or premeditated

murder); State V. Brock, 305 N.C. 532, 290 S.E.2d 566

(1982) (no degree of duress is sufficient at common law to

excuse the intentional killing of an innocent person); State

V. Robinson, 622 S.W.2d 62 (Tenn.Cr.App.), (reaffirming

established case law that duress is not a defense to

homicide) appeal dismissed, 454 U.S. 1096 (1981). We

agree with the rationale of these cases and reaffirm the

traditional common law doctrine that duress is not defense

to homicide. The trial court was correct in refusing

defendant's jury instruction. We find no error in this regard.

A-10

Exhibition of Bloody Clothing

Defendent argues that a mistrial should have been

declared when the prosecutor exhibited bloody clothing to

the jury during the testimony of an already sobbing

witness. The witness, Karen Bejarano, was the wife of the

victim, and had been shot during the robbery. Defendant

asserts that there was little, if any probative value to the

exhibits because the nature of Karen Bejarano’s wounds

had been fully described. Therefore, defendant contends

that the cnly possible value of the evidence was to arouse

the passion of the jury by showing them gore and an

hysterical witness.

We have reviewed the record and find that the refusal to

grant a mistrial because of this incident was a sound and

proper exercise of the trial court's discretion. The record

does not show that the witness, Karen Bejarano, was crying

or hysterical at the time that she was shown the exhibit.

Defendant did not establish that the evidence was

introduced solely to arouse the passion of the jury.

Moreover, defendant did not show that any prejudice

resulted from the introduction of the evidence. See State V.

Perez, 95 N.M. 262, 620 P.2d 1287 (1980). Abuse of

discretion must be shown and will be presumed. State V.

Greene, 92 N.M. 347, 588 P.2d 548 (1978). The trial court did

not abuse its discretion by refusing to grant a mistrial.

Defendant's Statement

Defendant contends that a statement made after an

inadequate advice of Miranda rights should have been

suppressed. See Miranda V. Arizona, 384 U.S. 436 (1966).

The Arizona Highway Patrol engaged the defendant and an

accomplice in a high speed chase over a gravel road.

Another law enforcement vehicle approached defendant's

vehicle from the front and there was a head-on collision.

The suspects began running across the desert while being

chased by police officers. When they were apprehended,

an officer read the suspects their Miranda rights.

Subsequently at the jail, another office asked defendant if

he had been advised of his rights and if he understood

A-11

them. The officer then asked defendant what happened.

Defendant said that he wanted to cooperate and help.

Defendant subsequently stipulated that he had received a

complete, proper advice of rights from the first officer.

Our review of the record shows that the trial court did not

abuse its discretion by allowing such admission. See State

V. Greene, 92 N.M. 347, 588 P.2d 548 (1978). However, even

assuming defendant's statement was inadmissible, the

evidence of defendant's guilt in this case was

overwhelming. The statements in question contributed

nothing to defendant's conviction. Any error in their

admission was harmless beyond a reasonable doubt. State

V. Trujillo, 95 N.M. 535, 624 P.2d 44 (1981); see also State V.

Moore, 94 N.M. 530, 612 P.2d 1314 (1980).

Conclusion

Defendant's conviction on all charges is affirmed. This

case is remanded to the trial court for a new sentencing

proceeding as to the first degree murder conviction

pursuant to NMSA 1978, Section 31-20A-4

(Rep!.Pamp.1981).

IT 1S SO ORDERED.

s/HARRY E. STOWERS, JR., Justice

WE CONCUR:

s/WILLIAM R. FEDERICI, Chief Justice

s/WILLIAM RIORDAN, Justice,

specially concuring

MARY C. WALTERS, Justice,

specially concurring

SPECIAL CONCURRENCE

DAN SOSA, Jr., Senior Justice

(Specially concurring).

“| specially concur with the remand for a new sentencing

proceeding for the reasons stated, and specially concur in

the majority opinion except as to the constitutionality of the

death penalty for the reasons set forth in my dissent in State

A-12

V. Garcia, 99 N.M. 771, 664 P.2d, cert. denied, ___ U.S.

—_—, 103 S.Ct. 2464, 77 L.Ed.2d 1341 (1983), which | feel

adequately sets forth my reasons for believing that equally

culpable people can be treated differently by sentencing

juries in this state.”

s/DAN SOSA, JR., Senior Justice

MARY C. WALTERS, Justice (Specially concurring).

Section 31-20A-4(D), NMSA, 1978, provides that if there

is error in sentencing, the reviewing court shall remand

solely for a new sentencing proceeding, and that the

resentencing trial may be presented to a new jury panel. In

my view, the statute creates an incongruous situation, in

view of the mandatory language of Section 31-20A-1(B)

and our decisions in Simonson and Hutchinson. However,

because both parties agreed to the irregular procedure

followed below, | concur in the result reached in this case.

s/MARY C. WALTERS, Justice

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that three copies of the foregoing

Petition for a Writ of Certiorari to the Supreme Court of

New Mexico were mailed, postage prepaid, this 24th day of

August, 1984 to Paul Bardacke, Post Office Drawer 1508,

Santa Fe, New Mexico 87503.

Sarah Michael Singleton